The Contribution of the Special Court for Sierra Leone to the Development of International Humanitarian Law [1 ed.] 9783428539628, 9783428139620

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Beiträge zum Internationalen und Europäischen Strafrecht Studies in International and European Criminal Law and Procedure Band / Volume 18

The Contribution of the Special Court for Sierra Leone to the Development of International Humanitarian Law By Ousman Njikam

Duncker & Humblot · Berlin

OUSMAN NJIKAM

The Contribution of the Special Court for Sierra Leone to the Development of International Humanitarian Law

Beiträge zum Internationalen und Europäischen Strafrecht Studies in International and European Criminal Law and Procedure Herausgegeben von / Edited by RiLG Prof. Dr. Kai Ambos

Band / Volume 18

The Contribution of the Special Court for Sierra Leone to the Development of International Humanitarian Law

By Ousman Njikam

Duncker & Humblot · Berlin

The Faculty of Law of the Georg-August University of Göttingen accepted this work as dissertation in the year 2011.

The views expressed in this book are those of the author alone and do not necessarily reflect the views of the International Criminal Tribunal for the former Yugoslavia or the United Nations in general.

Bibliographic information published by the Deutsche Nationalbibliothek The Deutsche Nationalbibliothek lists this publication in the Deutsche Nationalbibliografie; detailed bibliographic data are available in the Internet at http://dnb.d-nb.de.

All rights reserved. © 2013 Duncker & Humblot GmbH, Berlin Typesetting and printing: Berliner Buchdruckerei Union GmbH, Berlin Printed in Germany ISSN 1867-5271 ISBN 978-3-428-13962-0 (Print) ISBN 978-3-428-53962-8 (E-Book) ISBN 978-3-428-83962-9 (Print & E-Book) Printed on no aging resistant (non-acid) paper according to ISO 9706 Ο Internet: http://www.duncker-humblot.de

Foreword International criminal law has in the recent past developed rapidly with the establishment of several international criminal tribunals such as the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) as well as the so-called mixed or hybrid tribunals (Special Panels for Serious Crimes of the District Court of Dili in East Timor; ‘Regulation 64’ Panels in the Courts of Kosovo and the Special Court for Sierra Leone. The jurisprudence emanating from these institutions has contributed greatly to the development of international criminal law. The author of this book explores the contribution of one of these institutions: The Special Court for Sierra Leone (“Special Court”). This hybrid court was set up to try those most responsible for the grievous crimes committed during – albeit with a limited mandate ratione temporis – the armed conflict in Sierra Leone, bring justice to the victims and to lay the foundation for building respect for the rule of law in the Sierra Leonean post-conflict society. The Special Court Statute provides for the prosecution of crimes against humanity, violations of Common Article 3 of the Geneva Conventions and Additional Protocol II, and other serious violations of international humanitarian law, including crimes against peacekeepers and the recruitment of children. The Special Court therefore was in a position to play a vital role in the field of international humanitarian law. It was in a position, on the one hand, to apply the existing jurisprudence of the ad hoc Tribunals thereby consolidating the law and on the other hand, to contribute in further developing international humanitarian law. This book analyses the jurisprudence of the special Court from this standpoint and assesses what, if any, contribution the Special Court has made to the development of international humanitarian law. Such an assessment obviously requires the current jurisprudence of other international criminal tribunals to be taken into account and this is exactly what the author does by comparing the jurisprudence of the Special Court with that of the ICTY, ICTR and ICC. This book provides a broad and critical analysis of the jurisprudence of the Special Court and is of vital importance to any keen reader in the field of international criminal law. The work is commendable to learned scholars, students, judges and practitioners in the field. This work represents in itself the legacy of the Special Court and is laudable for its thorough analysis. The Hague, 27 November 2012

H. E. Hon. Bakone Justice Moloto, Judge UNICTY

Preface The study at hand was accepted as a dissertation at the Faculty of Law of the Georg-August University of Göttingen in November 2011. I would like to first express my sincere thanks to my supervisor Professor Dr. Kai Ambos, Judge at the State Court Göttingen, for his encouragement and support. This book would never have been published without his availability, his patience and the immense trust he bestowed upon me. I would like to as well express my thanks to the second referee Professor Dr. Peter-Tobias Stoll. For the generous publication subsidies I would like to thank the FAZIT-Stiftung and the German Federal Foreign Office (Auswärtiges Amt). My acknowledgement and thanks go as well to the German Academic Exchange Service (DAAD) who provided me with several stipends throughout my research. The DAAD awarded me two stipends: one for the ICL Summer School in Salzburg in 2007 and one for my internship in the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia in 2008. I would like to thank Simon Meisenberg for his valuable comments and advice. Special thanks go to David Crane, the first Prosecutor of the Special Court for Sierra Leone for letting me interview him, as well as Jusu Yarmah for several interviews. The support provided to me by my friends and closed ones cannot be overemphasized. I am particularly grateful to Ken Roberts, Dr. Stefanie Bock, Priyanka Chirimar, Vanessa Gree, Fiana Gantheret, Marie-Claude Fournier, Muhammed El Heija and Yao Li for their valuable comments and advice. Moreover, I would like to express special thanks to Dr. Ignaz Stegmiller who helped me with revisions, numerous discussions and moral support. Finally I would like to thank Maren, Norman and Bennet Njikam for their patience and care about me and the completion of this book. Further, I am greatly indebted to Hannelore Heinemann for her support towards the publication of this book. My last thoughts go to my parents Professors Njifutie Njikam and Ruth Sona Njikam as well as my siblings for their immense support and encouragement. Ousman Njikam

Table of Contents Chapter 1 Introduction Methodology / Objective of Study . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

23 30

Chapter 2 Politico-Historical Context of Sierra Leone prior to and during the Conflict

34

I. Pre-Colonial Phase . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

34

II. Post-Colonial Phase . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

35

III. The Peace Settlements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

37

IV. The Parties to the Conflict . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

39

1. The Republic of Sierra Leone Military Forces and Assimilated . . . . . . . . . . . . . . . .

39

a) Republic of Sierra Leone Military Forces . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

39

b) The Armed Forces Revolutionary Council . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

39

2. The Revolutionary United Front . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

40

3. The National Patriotic Front for Liberia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

40

4. The Civil Defence Force . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

41

5. Private Military Companies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

42

6. [International] Peacekeeping Forces . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

43

Chapter 3 The Objective, Establishment, Jurisdiction and Organization of the Special Court

45

I. The Objective / Aim of the Special Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

45

1. Political Objective . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

45

2. Humanitarian Objective . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

46

3. Legal Objective . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

48

10

Table of Contents II. Establishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

50

III. Organization of the Special Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

52

1. The Chambers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

54

2. The Office of the Prosecutor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

57

3. The Registry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

59

IV. Jurisdiction (Concurrent, Primary and Complementary) . . . . . . . . . . . . . . . . . . . . . . . . . .

62

1. General Remarks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

62

a) Genuine Unwillingness or Inability of Sending State . . . . . . . . . . . . . . . . . . . . . .

67

b) Security Council Authorization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

69

c) Security Council Authorization based on any State Proposal . . . . . . . . . . . . . .

69

2. Substantive Jurisdiction (rationae materiae) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

70

a) Crimes against Humanity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

71

b) Violations of Article 3 Common to the Geneva Conventions and of AP II . . .

72

c) Other Serious Violations of International Humanitarian Law . . . . . . . . . . . . . .

73

d) Crimes under Sierra Leonean Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

74

3. Personal Jurisdiction (rationae personae) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

74

4. Temporal Jurisdiction (rationae temporis) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

80

5. Territorial Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

81

6. The Cases before the Special Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

81

7. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

85

Chapter 4 The Special Court’s Case Law on Crimes against Humanity

86

I. Notion and Development of Crimes against Humanity . . . . . . . . . . . . . . . . . . . . . . . . . . .

86

II. The Special Court’s Definition and Rationale of Crimes against Humanity . . . . . . . .

89

III. The Contextual Elements (Part of a Widespread or Systematic Attack against any Civilian Population) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

90

1. A Widespread or Systematic Attack . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

91

a) The Word Attack . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

91

b) The Phrase Widespread or Systematic . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

94

2. Any Civilian Population . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

97

3. ‘Part of’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100 IV. The Mental Element (mens rea) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101 1. The Discriminatory Element . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102

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V. The Elements of the Acts Enumerated in Article 2 SCSL Statute . . . . . . . . . . . . . . . . . 102 1. Murder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102 2. Extermination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104 3. Enslavement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107 4. Deportation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111 5. Imprisonment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113 6. Torture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114 7. Rape, Sexual Slavery, Enforced Prostitution, Forced Pregnancy and any other Form of Sexual Violence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117 a) Rape . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118 aa) The Characterization of Rape in International Criminal Law . . . . . . . . . 119 b) Sexual Slavery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123 aa) Substantive Elements (actus reus) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125 bb) Mental Element (mens rea) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126 c) Enforced Prostitution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127 d) Forced Pregnancy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127 e) Other Forms of Sexual Violence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129 8. Persecution on Political, Racial and Religious Grounds . . . . . . . . . . . . . . . . . . . . . . . 130 9. Other Inhumane Acts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131 VI. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134 Chapter 5 The Special Court’s Case Law on War Crimes

136

I. The Notion of War Crimes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136 II. The Regulation of International and Non-international Armed Conflicts . . . . . . . . . . 137 III. The Applicability of Article 3 of the SCSL Statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 144 IV. The Nature of the Conflict in Sierra Leone . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145 1. International or Non-international Armed Conflict? . . . . . . . . . . . . . . . . . . . . . . . . . . . 146 a) General Remarks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146 b) Special Court Jurisprudence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 148 2. The Impact of the ECOMOG and UNAMSIL Intervention . . . . . . . . . . . . . . . . . . . . 153 a) ECOMOG Intervention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 153 b) UNAMSIL Intervention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 157

12

Table of Contents 3. The Involvement of Foreign Mercenaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 158 4. The British Intervention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 159 5. Evaluation of Special Court Characterization of the Nature of the Conflict in Sierra Leone . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 160 V. Temporal and Territorial Applicability of Common Article 3 and AP II . . . . . . . . . . . 161

VI. Nexus to Armed Conflict . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 162 VII. The Elements of the Acts Enumerated in Article 3 of SCSL Statute . . . . . . . . . . . . . . . 163 1. Violence to Life, Health and Physical or Mental Well-being of Persons, in Particular Murder as well as Cruel Treatment such as Torture, Mutilation or any Form of Corporal Punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 164 2. Collective Punishments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 165 3. Taking of Hostages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 166 4. Acts of Terrorism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 169 5. Outrages upon Personal Dignity, in Particular Humiliating and Degrading Treatment, Rape, Enforced Prostitution and any Form of Indecent Assault . . . . 171 6. Pillage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 173 7. The Passing of Sentences and the Carrying out of Executions without Previous Judgment Pronounced by a Regularly Constituted Court, Affording all the Judicial Guarantees which are Recognized as Indispensable by Civilized Peoples . . . 174 VIII. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 175 Chapter 6 The Special Court’s Case Law on other Serious Violations of IHL

176

I. The Notion of Customary International Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 177 II. Intentionally Directing Attacks against Personnel, Installations, Material, Units or Vehicles Involved in a Humanitarian Assistance or Peacekeeping Mission in Accordance with the Charter of the United Nations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 177 1. Treaties and other Legal Instruments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 179 2. Protection Given to Civilians and Civilian Objects . . . . . . . . . . . . . . . . . . . . . . . . . . . . 183 3. The Practice of the Special Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 185 a) The Accused Directed an Attack against Personnel, Installations, Material, Units or Vehicles Involved in a Humanitarian Assistance or Peacekeeping Mission in Accordance with the Charter of the United Nations . . . . . . . . . . . . 188 b) The Accused Intended such Personnel, Installations, Material, Units or Vehicles to be the Object of the Attack . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 190

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c) Such Personnel, Installations, Material, Units or Vehicles were Entitled to that Protection Given to Civilians or Cvilian Objects under the International Law of Armed Conflict . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 191 d) The Accused Knew or had Reason to Know that the Personnel, Installations, Material, Units or Vehicles were Protected . . . . . . . . . . . . . . . . . . . . . . . . . . 192 III. Conscripting or Enlisting of Children under the Age of 15 Years into Armed Forces or Groups or Using them to Participate Actively in Hostilities . . . . . . . . . . . . . 194 1. General Remarks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 194 2. Foundation of the Crime . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 197 3. The Conscripting or Enlisting of Children under the Age of 15 Years into Armed Forces or Groups or Using them to Participate Actively in Hostilities as Customary International Law? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 198 4. The Jurisprudence of the Special Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 205 a) Material Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 209 aa) Conscription and Enlistment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 209 bb) (National Armed Forces), Armed Forces and Armed Groups . . . . . . . . . 212 cc) Active Participation in Hostilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 213 b) Mental Elements – The Knew or should have Known Test . . . . . . . . . . . . . . . . 217 Chapter 7 Crimes under Sierra Leonean Law

219

Chapter 8 The Legacy of the Special Court

225

I. Jurisprudence on Amnesty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 226 1. What is an International Crime? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 226 2. The Concept of Amnesty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 227 3. International Criminal Law Conventions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 235 4. General Human Rights Conventions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 237 5. Soft Law Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 241 II. Jurisprudence on Forced Marriage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 246 1. General Remarks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 246 2. The Concept of Forced Marriage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 247 3. The Requirement of Consent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 254

14

Table of Contents

III. Jurisprudence on Head of State Immunity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 256 1. Jurisdictional Requirement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 259 2. Internationality Requirement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 261 a) Head of State Immunity as a Bar to Criminal Proceedings? . . . . . . . . . . . . . . . . 261 b) The Obligation of Third States to Cooperate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 266 c) What are the Common Factors / Criteria for an International Criminal Court?

269

IV. Jurisdiction over Children between 15 and 18 Years of Age . . . . . . . . . . . . . . . . . . . . . . 271 V. Jurisprudence on Sentencing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 273 1. Primary Objectives of Sentencing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 273 a) Retribution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 274 b) Deterrence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 275 2. The Regulatory Framework for Sentencing at the Special Court . . . . . . . . . . . . . . . 277 3. The Practice of Sentencing at the Special Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 278 VI. Outreach Section . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 280 Chapter 9 General Conclusion

282

German Summary: Der Beitrag vom Sondergerichtshof für Sierra Leone zu der Entwicklung von Völkerrecht . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 285 Bibliography . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 290 Special Court Judgments, Decisions and Other Documents . . . . . . . . . . . . . . . . . . . . . . . . . 307 1. Appeal Judgments (A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 307 2. Trial Judgments (T) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 307 3. Appeal Decisions (Decision on Interlocutory) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 307 4. Decisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 308 5. Indictments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 309 ICTY Judgments, Decisions and Indictments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 310 1. Appeal Judgments (A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 310 2. Judgments (T) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 310 3. Appeal Decisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 312

Table of Contents

15

4. Decisions (T) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 312 5. Indictments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 312 ICTR Judgments and Indictments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 313 1. Appeal Judgments (A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 313 2. Judgments (T) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 313 3. Indictments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 314 Other Jurisprudence and Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 315 1. International Court of Justice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 315 2. International Criminal Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 315 3. Special Tribunal for Lebanon . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 316 4. African Court on Human and Peoples’ Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 316 5. European Court of Human Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 317 6. Inter-American Court of Human Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 317 7. Inter-American Commission of Human Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 317 8. Nuremberg Tribunal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 317 9. Israel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 317 10. Malaysia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 317 11. United Kingdom . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 317 12. United States of America . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 318 13. Women’s International War Crimes Tribunal for the Trial of Japan’s Military Sexual Slavery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 318 United Nations Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 319 1. United Nations Security Council Resolutions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 319 2. United Nations General Assembly Resolutions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 320 3. United Nations Secretary-General Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 320 4. Other United Nations Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 320 Table of other Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 323 1. Domestic Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 323 2. International Legal Instruments and Commentaries . . . . . . . . . . . . . . . . . . . . . . . . . . . 324

16

Table of Contents 3. List of other Legal Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 325 4. Statutes of International Criminal Courts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 328

Index . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 329

*** Table of the Charts Chart 1: Chart of the Organisation of the Special Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

54

Chart 2: Chart of the Organisation of Chambers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

57

Chart 3: Chart of the Office of the Prosecutor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

59

Chart 4: Chart of the Office of the Registrar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

63

Abbreviations 1899 Hague Convention

Convention with Respect to the Laws and Customs of War on Land, The Hague, 29 July 1899, 26 Martens (2d) 949, 32 Stat. 1803, T.S. No. 403. Reprinted in 1 AJIL 129 (1907).

1907 Hague Convention

Convention Respecting the Laws and Customs of War on Land, The Hague,18 October 1907, 3 Martens (3d) 461, 36 Stat. 2277, T.S. No. 539. Reprinted in 2 AJIL 90 (1908).

ACCORD

African Centre for the Constructive Resolution of Disputes

ACHPR

African Charter on Human and Peoples’ Rights

A / Conf.

annual conference

AFRC

Armed Forces Revolutionary Council

Afr. Hum. Rts. L. J.

African Human Rights Law Journal

AMIS

African Union Mission in Sudan

Am. J. Int’l L.

American Journal of international Law

AP I

Protocol Additional to the Geneva Conventions of 12 August 1949 and Relating to the Protection of Victims of International Armed Conflicts, 8 June 1977

AP II

Protocol Additional to the Geneva Conventions of 12 August 1949 and Relating to the Protection of Victims of Non-International Armed Conflicts, 8 June 1977

APC

All People’s Congress

ASIL

American Society of International Law

ASP

Assembly of States Parties

AU

African Union

BGH

Bundesgerichtshof

BOFAXE

Newspaper

Brook. J. Int’l L.

Brooklyn Journal of International Law

BWV

Berliner Wissenschafts-Verlag

CAH

Crimes Against Humanity

CDF

Civil Defence Forces

CDU

Civil Defence Units

Cf.

Confer

CJ

Chief Judge

CLF

Criminal Law Forum

18 CODESRIA

Abbreviations Council for the Development of Social Science Research in Africa

Denv. Int’l L & Poly

Denver Journal of International Law and Policy

Doc.

Document

Drake L. Rev.

Drake Law Review

DRC

Democratic Republic of Congo

Duke J. Comp. & Int’l L

Duke Journal of Comparative and International Law

ECCC

Extraordinary Chambers in the Courts of Cambodia

ECOMOG

Economic Community of West African States Cease-Fire Monitoring Group

ECOWAS

Economic Community of West African States

edn.

edition

ed(s).

editor(s)

EJIL

European Journal of International Law

et al.

and others (et alii)

et seq.

and the following (et sequens; et sequentes)

FICHL

Forum for International Criminal and Humanitarian Law Publication Series

Fla. J. Int’l L.

Florida Journal of International Law

GAOR

(United Nations) General Assembly Official Records

G. A. Res.

(United Nations) General Assembly Resolutions

GSG

Gurkha Security Guards Limited

Harv. Int’l L J.

Harvard International Law Journal

HCJ

High Court of Justice

HRC

Human Rights Council

HRW

Human Rights Watch

Ibid.

in the same place (ibidem)

ICC

International Criminal Court

ICJ

International Court of Justice

ICJ Rep

International Court of Justice, Reports of Judgments, Advisory Opinions and Orders

ICLR

International Criminal Law Review

ICRC

International Committee for the Red Cross

ICTJ

International Center for Transitional Justice

ICTR

International Criminal Tribunal for the Prosecution of Person Genocide and other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and other Serious Violations

Abbreviations

19

of International Humanitarian Law Committed in the Territory of Neighbouring States, between 1 January 1994 and 31 December 1994 ICTR Statute

Statute of the International Tribunal for Rwanda, UN Doc. S / RES / 955 (1994)

ICTY

International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia Since 1991

ICTY Statute

Statute of the International Criminal Tribunal for the Former Yugoslavia, UN Doc. S / 25704

IDF

Israeli Defence Force

i.e.

that is (id est)

IHL

International Humanitarian Law

ILC

International Law Commission

ILM

International Legal Materials

ILSA

International Law Students Association

ILSA J. Int’l & Comp. L

International Law Students Association Journal of International and Comparative Law

IMT

International Military Tribunal (Agreement for the Prosecution and Punishment of major War Criminals of the European Axis, 8 August 1945, Charter of the International Military Tribunal, 59 Stat. 1544, 1546, 82 UNTS 279, 284)

IMTFE

International Military Tribunal for the Far East. Special Proclamation: Establishment of an International Military Tribunal for the Far East, 19 January 1946, T.I.A.S. No. 1589, at 3,4 Bevans 20

Ind. Int’l & Comp. L. Rev.

Indiana International and Comparative Law Review

Inter-Am. C.H.R

Inter-American Court of Human Rights

INTERPOL

International Criminal Police Organization

Int J Refugee Law

International Journal of Refugee Law

Int J Transitional Justice

International Journal of Transitional Justice

Int’1 L. Rev.

International Law Review

IRIN West Africa

Integrated Regional Information Network West Africa

ISAF

International Security Assistance Force

ISISC

International Institute of Higher Studies in Criminal Sciences

Isr. L. Rev.

Israeli Law Review

IStGH

Internationaler Strafgerichtshof, Den Haag

JICJ

The Journal of International Criminal Justice

KBE

Knight Commander of the Order of the British Empire

20

Abbreviations

KCB QC

Knight Commander of the Order of the Bath, Queen’s Counsel

L. & Contemp. Probs

Law and Contemporary Problems

LGDJ

Librairie Générale de Droit et de Jurisprudence

LJIL.

Leiden Journal of International Law

LRA

Lord’s Resistance Army

mn.

marginal number

mtg.

meeting

NGO

Non Governmental Organisation

NJW

Neue Juristische Wochenschrift

No.

Number

Nova L. Rev.

Nova Law Review

NPFL

National Patriotic Front for Liberia

NPRC

National Provisional Ruling Council

NW U.J. Int’l Hum. Rts.

Northwestern University Journal of International Human Rights

N. Y.

New York

N.Y. Int’l L. Rev.

New York International Law Review

OAU

Organisation of African Unity

OEA

Organisation of American States (Organizacion de los Estados Americanos)

OED

Oxford English Dictionary

OLAD

Office for Legal Aid and Detention

OLG

Oberlandesgericht

OTP

Office of the Prosecutor

OUP

Oxford University Press

p.

page

para.

paragraph

paras.

paragraphs

pp.

pages

PTC

Pre-Trial Chamber

RCADI

Recueil des Cours de l’Academie de Droit International

RDC

République Démocratique du Congo

Res.

Resolution

Rev.

Review

RPE

Rules of Procedure and Evidence

RPF

Rwandese Patriotic Font

RSLMF

The Republic of Sierra Leone Military Forces

RUF

Revolutionary United Front

Abbreviations

21

SC-Res.

Security Council Resolution

SCSL Statute

Statute of the Special Court for Sierra Leone, 16 January 2002, available at http: // www.sc-sl.org

SEAPA

Section for Evidence, Archiving and Post Operations Access

Sess.

Session

SL

Sierra Leone

SLA

Sierra Leone Army

Special Court

Special Court for Sierra Leone

StGB

Strafgesetzbuch (German Penal Code)

STL

Special Tribunal for Lebanon

Suffolk Transnat’l L. Rev

Suffolk Transnational Law Review

TC

Trial Chamber

TIAS

Treaties and other International Acts Series

TRC

Truth and Reconciliation Commission

U.C. Davis J. Int’l L. Pol’y

University of California Davis Journal of International Law and Policy

UDHR

Universal Declaration of Human Rights

UK

United Kingdom

ULIMO

United Liberian Movement for Democracy

ULIMO-J

United Liberian Movement for Democracy (FREETOWN)

ULIMO-K

United Liberian Movement for Democracy (LIBERIA)

UN

United Nations

UNAMET

United Nations Mission to East Timor

UNAMSIL

United Nations Mission in Sierra Leone

UN Doc.

United Nations Document

UNGA

United Nations General Assembly

UNGA Res.

United Nations General Assembly Resolutions

UNICEF

United Nations Children’s Fund

UNPROFOR

United Nations Protection Force in Bosnia

UNSC

United Nations Security Council

UNSC Doc.

United Nations Security Council Document

UNSCR

United Nations Security Council Resolution

UNTAET

United Nations Transitional Administration in East Timor

UNTS

United Nations Treaty Series

USA

United States of America

USC

United States Code

USSR

Union of Soviet Socialist Republic

22

Abbreviations

v.

versus

VCLT

Vienna Convention on the Law of Treaties, 1969.

Vol.

Volume

WW I

First World War

WW II

Second World War

Yearbook Int’l L. Comm’n

Yearbook International Law Commission

YIHL

Yearbook of International Humanitarian Law

ZIS

Zeitschrift für internationale Strafrechtsdogmatik

“All Sierra Leoneans, at home and abroad, suffered considerable loss. Some lost their cherished and loved ones, others their belongings, and still others, their dignity and honour. The bitter experience of armed conflict will linger in our memories for as long as we need to remind ourselves of the mistakes that we should never ever make again.”1

Chapter 1

Introduction The African continent has emerged in the eyes of the international community not only as the “forgotten poor continent” but also as a war continent. The conflicts are of various natures: internal conflicts, regional conflicts, ethnic conflicts and civil wars. They cause more civilian victims than military victims. Moreover, during these conflicts serious violations of international humanitarian law occur, which more often than not remain unpunished. History has shown that in the aftermath of such conflicts, simply turning away from the past does not provide a transition to peace and stability but rather maintains a status quo which ultimately could lead to a repetition of the wrongs of the past. In order to avoid impunity and ensure accountability after such conflicts, there have been several post-conflict mechanisms applied such as criminal prosecutions both at the national and international level; truth commissions; commissions of inquiry; restitution or reparations; vetting or lustration; institutional reforms and other less structured or institutionalized approaches (e.g. the establishment of national days of memory, apologies and the construction of monuments) as well as traditional, indigenous, and religious approaches. Although each of these approaches may be applied individually and yield success, some academics suggest that the larger objective of post-conflict justice is best achieved through a coordinated, coherent and comprehensive approach.2 Criminal prosecution at the international level is thus just one of the several postconflict mechanisms that exist in dealing with past violations of human rights and humanitarian law.

1 Dr. Ahmad Tejan Kabbah, President of the Republic of Sierra Leone, Opening Speech at the Official Opening of the Parliament of the Third Republic, 12 July 2002, available at http: // www.sierra-leone.org / Speeches / kabbah-071202.html (all websites in this study last visited 09.05.2012). 2 Cherif Bassiouni, The Chicago Principles on Post-Conflict Justice, International Human Rights Law Institute, USA; 2008, p. 27.

24

Chapter 1: Introduction

After the Nuremberg3 and Tokyo4 trials in 1945 and 1946 respectively, international humanitarian law has developed with the establishment of the International Criminal Tribunal for the former Yugoslavia (“ICTY”),5 the International Criminal Tribunal for Rwanda (“ICTR”),6 the so-called mixed Tribunals (Special Court for Sierra Leone, the East-Timor Special Panels,7 the Extra-ordinary Chambers in the Courts of Cambodia8 and the Special Tribunal for Lebanon9), as well as the International Criminal Court (“ICC”).10 3 Cf. Agreement for the Prosecution of Major Criminals of the European Axis, and Establishing the Charter of the International Military Tribunal (IMT), 8 August 1945, 82 UNTS (1951), p. 279. The IMT was established pursuant to a multilateral treaty between the United Kingdom, the United States of America, the Union of Soviet Socialists Republic and France. The Charter was annexed to the London Agreement and constituted an integral part of it. Nineteen states later subscribed to the London Agreement: for example Austria, Belgium, Czechoslovakia, Denmark, Ethiopia, Greece, Haiti, Honduras, India, Luxembourg, The Netherlands, New Zealand, Norway, Panama, Paraguay, Poland, Uruguay and Venezuela. 4 Cf. International Military Tribunal fort the Far East, Special Proclamation by the Supreme Commander for the Allied Powers at Tokyo, 19 January 1946; Charter dated 19 January 1946, 1589 TIAS 3, reprinted in Charles I. Bevans (ed.), Treaties and Other International Agreements, vol. 4, 1970, p. 20, amended 26 April 1946, ibid., p. 27. 5 Cf. UN Security Council Resolution 808, Doc. S / RES / 808, 22 February 1993, annexed to Report of the Secretary-General Pursuant to Paragraph 2 of SC Resolution 808 (1993), 3 May 1993, UN Doc. S / 25704 and Add.1. 6 Cf. International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens responsible for genocide and other such violations committed in the territory of neighbouring States between 1 January 1994 and 31 December 1994, UN SC Res. 955, 8 November 1994, UN SC Doc. S / RES / 955 (1994); reprinted in 33 ILM 1602 (1994). 7 Cf. UN Security Council (UNSC) Resolution 1272, Doc. S / RES / 1272, 25 October 1999, establishing the United Nations Transitional Administration in East Timor (UNTAET) and granting it a mandate to “exercise all legislative and executive authority, including the administration of justice”. The precursor of UNTAET was the United Nations Mission to East Timor (UNAMET), which organised and oversaw the 1999 referendum which led to the establishment of the new state of East Timor. The East Timor Special Panels for Serious Crimes were established as part of the transitional court system by the UNTAET within the District Court of Dili, pursuant to Section 10 of UNTAET Regulation 2000 / 11 as amended by UNTAET Regulation 2001 / 25 (on the Amendment of UNTAET Regulation No. 2000 / 11 on the Organization of Court in East Timor and UNTAET Regulation No. 2000 / 30 on the Transitional Rules of Criminal Procedure, 14 September 2001). 8 Cf. Law on the Establishment of Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed during the Period of Democratic Kampuchea, with amendments as promulgated on 27 October 2004 (NS / RKM / 1004 / 006), [ECCC Statute], available at http: // www.eccc.gov. 9 Cf. UN Security Council Resolution 1664, Doc. S / RES / 1664, 29 March 2006, requesting the UN Secretary-General to negotiate an agreement with the government of Lebanon aimed at establishing a tribunal of an international character based on the highest international standards of criminal justice. These negotiations resulted in ‘the Agreement between the UN and the Lebanese Republic on the establishment of a Special Tribunal for Lebanon’, signed by the Government of Lebanon and the UN respectively on 23 January and 6 February 2007. See

Chapter 1: Introduction

25

The Special Court for Sierra Leone (“Special Court”), which is the subject of this thesis, was created in the context of what observers described as ‘tribunal fatigue’ on the part of the UNSC.11 However, despite this fatigue, the international community was faced with the need to act in light of the alleged atrocious crimes that had been perpetrated in the course of the conflict in Sierra Leone.12 Accountability for serious human rights crimes, like those committed during Sierra Leone’s war, is essential for several reasons: to bring justice to the victims, to punish the perpetrators, and to lay the foundation for building respect for the rule of law in post-conflict societies.13 The Special Court was established in 2002 by an agreement between the government of Sierra Leone and the UN14 following a request from the President of the Republic of Sierra Leone, Dr. Ahmad Tejan Kabbah and pursuant to UNSC Resolution 1350 (2000) of 14 August 2000.15 This UNSC Resolution expressly authorized the UN Secretary-General to negotiate an agreement to set up a special court.16 In doing so, the UNSC outlined the “negative impact of the security situation on the also UNSC Resolution 1757, Doc. S / RES / 1757, 30 May 2007, which contains both the above mentioned agreement and the statute of the Special Tribunal for Lebanon. 10 Cf. Rome Statute of the International Criminal Court, Text circulated as document A / CONF.183 / 9 of 17 July 1998 and corrected by process-verbaux of 10 November 1998, 12 July 1999, 30 November 1999, 8 May 2000, 17 January 2001 and 16 January 2002, 2187 U.N.T.S. 90 (entered into force 1 July 2002) (hereinafter ICC Statute). 11 See for example: The UN Criminal Tribunals for Yugoslavia and Rwanda: International Justice or Show of Justice?: Hearing Before the H. Comm. On Int’l Relations, 107th Cong. 20 (2002) (statement of Pierre-Richard Prosper, Ambassador – At-Large for War Crimes Issues, U.S. Dep’t of State), available at www.state.gov /s/wci/us_releases/rm/2002/8571.htm. See also Stephen J. Rapp, The Compact Model in International Criminal Justice: The Special Court for Sierra Leone, 57 Drake L. Rev. 11, 2008, p. 20; Jelka Mayr-Singer, Hybridgerichte – eine neue Generation internationaler Strafgerichte, Der Sondergerichtshof für Sierra Leone, in 56 Vereinte Nationen 2, 2008, p. 69. 12 Cf. Zsuzsanna Deen-Racsmány, Prosecutor v. Taylor: The Status of the Special Court for Sierra Leone and Its Implications for Immunity, 18 LJIL 2, 2005, p. 307. 13 See generally Joshua A. Romero, The Special Court for Sierra Leone and the Juvenille Soldier Dilemma, 2 NW U.J. Int’l Hum. Rts. 8, 2004, pp. 1 – 28. 14 Agreement between the United Nations and the Government of Sierra Leone on the Establishment of a Special Court for Sierra Leone, signed on 16 January 2002. 15 Cf. Report of the Secretary-General on the Establishment of a Special Court for Sierra Leone, UN Doc S / 2000 / 915, 4 October 2000 (“Report of the Secretary-General, 4 October 2000”). 16 On 12 June 2000 President Kabbah wrote to the UN requesting its support in creating a court to try perpetrators of the conflict in Sierra Leone. In UNSC Res. 1315 (2000) the Security Council asked the UN-Secretary-General to negotiate an agreement with the Government of Sierra Leone to create an independent special court to prosecute persons who bear the greatest responsibility for the commission of serious violations of international humanitarian law and crimes committed under Sierra Leonean law (UN Doc. S / RES / 1315, 14 August 2000). Imprinted in: Ambos / Othman (eds.), New Approaches in International Criminal Justice: Kosovo, East Timor, Sierra Leone and Cambodia, Max-Planck-Institut für ausländisches und internationales Strafrecht, edition iuscrim, Freiburg i. Br. 2003, pp. 250 et seq.; see also .

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administration of justice in Sierra Leone and the pressing need for international cooperation to assist in strengthening the judicial system of Sierra Leone”.17 Further, it found that the “situation in Sierra Leone continue[d] to constitute a threat to international peace and security in the region”.18 This establishment by an agreement between a sovereign state and the UN19 laid the groundwork for the Special Court’s characterization as a “hybrid tribunal” with the court offering a different judicial model than the ad hoc Tribunals (ICTY and ICTR) established by the UNSC to try perpetrators of the conflicts in the former Yugoslavia and in Rwanda respectively.20 Thus, the Special Court has a common legal nature with the ICC, which was established in Rome by a treaty – albeit being a treaty between the UN and only one state as against between many more states as concerns the ICC.21 The Special Court, being the first of its kind, represented a significant new model of international justice, often referred to as a “mixed” or “hybrid” tribunal.22 It represented an attempt by the international community to reconcile the need for ending impunity on the one hand and the reality of limited resources on the other.23 The Appeals Chamber of the Special Court considered it a treaty based sui generis Court of mixed jurisdiction and composition that in order to be implemented at the national level, required the incorporation of the Special Court Agreement into national law of Sierra Leone in accordance with the constitutional requirement.24 In this respect, it is also an advantage that the seat of the Court is in the same country where the conflict took place, since the victims of the violations of international humanitarian law were able to closely witness justice being rendered. Cf. UN Doc.S / RES / 1315 (2000). Ibid. 19 Agreement between the United Nations and the Government of Sierra Leone on the Establishment of a Special Court for Sierra Leone, supra note 14. 20 Supra notes 5 and 6 respectively. 21 ICC Statute, supra note 10. For more on ICC and its relationship with the United Nations, see Antonio Marchesi, Article 2: “Relationship of the Court with the United Nations”, in: Otto Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court, Observers’ notes, article by article, 2nd edn., C.H. Beck, Hart, Nomos Verlagsgesellschaft, München, 2008, pp. 65 et seq. As of 20.10.2012, 121 States had ratified the ICC Statute. 22 Cf. Kai Ambos, Internationales Strafrecht, Strafanwendungsrecht, Völkerstrafrecht, Europäisches Strafrecht, Rechtshilfe, 3rd edn., Verlag C.H. Beck, München 2011, § 6, marginal number (mn.) 44; Suzannah Linton, Cambodia, East Timor and Sierra Leone: Experiments in International Justice, 12 CLF 2, 2001, pp. 185 – 246. 23 Cf. José Doria, The Work of the Special Court for Sierra Leone through its Jurisprudence, in: José Doria / Hans-Peter Gasser / Cherif Bassiouni (eds.), The Legal Regime of the International Criminal Court, Essays in Honour of Professor Igor Blishchenko, Martinus Nijhoff Publishers, Leiden, Boston 2009, p. 229. 24 SCSL, The Prosecutor v. Morris Kallon, Case No. SCSL 2003-07, Decision on Constitutionality and Lack of Jurisdiction, 24 November 2003, paras. 40 – 43. Special Court Agreement (2002) Ratification Act, Supplement to the Sierra Leone Gazette Vol. CXXX. No II dated 7th March 2002. See also José Doria, The Work of the Special Court for Sierra Leone through its Jurisprudence, supra note 23, p. 237. 17 18

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In addition, the Special Court is made up of both international and national (Sierra Leoneans) staff.25 However, this particular aspect, although submitted as proof of the hybrid nature of the Special Court, is in my view rather unpersuasive. This is so because the description ‘international staff’ simply means staff from various nationalities and does not per se exclude those from the country where the crimes were committed. In the same light, the ‘international staff’ working in other international courts includes nationals from the country where the crimes were committed. This term is rather applied to describe individuals who were not recruited from the local labour market. If one were to follow this logic of considering the Special Court to be a hybrid tribunal because local Sierra Leoneans were envisaged and did work at the Special Court, then all other international criminal courts – I am using the term “international criminal courts” as a generic term which does not in any way have any legal implications – would be described as such since they too recruit some of their staff from the local market. Having said that, the author considers that other features of the Special Court such as the fact that its substantive law includes both international and national crimes (Articles 2 – 5 of the Special Court for Sierra Leone’s Statute [SCSL Statute]) are more appropriate proof of the hybrid nature of the Special Court.26 Likewise, taking into account the fact that Judges are not considered as staff per se, the fact that Sierra Leonean Judges were permitted to serve in the Chambers of the Special Court is further proof of the hybrid nature of the Special Court. Another particularity of the Special Court is that – unlike the ad hoc Tribunals – it is not assimilated as a subsidiary organ of the UNSC. Nevertheless, the particularities, which rendered the Special Court an innovation such as its location, the limited budget27 and the

Cf. Report of the Secretary-General, 4 October 2000, supra note 15, para. 9. According to the Report of the Secretary-General, 4 October 2000, supra note 15, the two Sierra Leonean laws were included in the SCSL Statute in order to cover cases ‘where a specific situation or an aspect of it was considered to be either unregulated or inadequately regulated under international law’. The 1926 Prevention of Cruelty to Children Act (Sierra Leone) covers abusing a girl under the age of 13, abusing a girl between the ages of 13 and 14, and abducting a girl for immoral purposes. The 1861 Malicious Damage Act covers the wanton destruction of property, notably setting fire to dwellings, public buildings and other buildings. 27 It was hoped that the Special Court model with a limited budget would lead to expeditious trials, however, as Antonio Cassese, former ICTY President noted in his report: “[A]lthough meritorious in many respects, the new judicial body has not fully lived up to its initial expectations from the viewpoint of expeditiousness […]. Assuming that [the proposed schedule for completing all proceedings] is respected – and it should be respected – proceedings against ten accused will have taken approximately seven and a half years from the Court’s inception in mid-2002, when the Registrar and Prosecutor arrived in Freetown. This is not a significant improvement on the record of the ICTR or ICTY, which within a comparable time frame tried many more accused, albeit with more judges, staff and resources […]. In fact, the Special Court’s trials have taken longer than many of the ICTR and ICTY multi-accused cases” (Report on the Special Court for Sierra Leone, Submitted by the Independent Expert Antonio Cassese, 12 December 2006). 25 26

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pressure to sum up court proceedings quickly, turned out to impede the success of the court.28 This is so because, in relation to the location, many highly qualified practitioners were not willing to go to work in the middle of Africa with all the insecurity that reigned there – at least in the early years of the Special Court’s existence. This had obviously an effect in the quality of some of the jurisprudence that emanated from the Special Court. Further, the limited budget, which was expected to ensure that proceedings are carried out as expeditiously as possible, rather served as a distraction to staff. The Prosecutor and Registrar spent a great deal of their time travelling across the world trying to secure funding for the Special Court rather than ensure that proceedings are carried out expeditiously and effectively.29 The Special Court although being a novel approach to combat impunity in the international criminal justice system, was, however, expected to rely on the jurisprudence of the ICTY and ICTR. The decisions of the ICTY and ICTR albeit not binding per se on the Special Court, were suppose to have a persuasive status. Article 20 (3) SCSL Statute provides that “The Judges of the Appeals Chamber of the Special Court shall be guided by the decisions of the Appeals Chamber of the International Tribunals for the former Yugoslavia and Rwanda”.30 In this regard the Judges of the Special Court in the Prosecutor v. Moris Kallon case interpreted the expression ‘shall be guided’ not to amount to an obligation: “Without meaning to detract from precedential or persuasive utility of decisions of the ICTR and ICTY and to diminish the general thrust of the Prosecution’s submissions on this point […] it must be emphasized that the use of the formula ‘shall be guided by’ in Article 20 of the Statute does not mandate a slavish and uncritical emulation, either precedentially or persuasively of the principles enunciated by our sister tribunals. Such an approach would inhibit the evolutionary jurisprudential growth of the Special Court consistent with its origins and features. On the contrary, the Special Court is empowered to develop its own jurisprudence having regard to some of the unique and different socio-cultural and juridical dynamics prevailing in the locus of the court […].” 31 The raison d’être for this link to the ad hoc Tribunals was to ensure that international criminal law has 28 The decision to move the Taylor Trial to The Hague was officially due to security concerns for the Special Court in particular and for the whole region in general. It has however had a detrimental effect vis-à-vis access of the local public, local media, and victims and witnesses. For more on the transfer see: SCSL, President of the Special Court, Prosecutor v. Charles Ghankay Taylor, Case No. SCSL-2003-01-PT, Order Changing Venue of Proceedings, 19 June 2006; UNSC Resolution 1688, Doc. S / Res / 1688, 16 June 2006. See also Lydia Polgreen / Marlise Simons, Sierra Leone Asks to Move Liberian’s Trial, New York Times, 31 March 2006. 29 Interview conducted by the author with Jusu Yarmah in The Hague, 7 June 2011. 30 Article 20(3) Statute of the Special Court for Sierra Leone, annexed to the Agreement between the United Nations and the Government of Sierra Leone on the Establishment of the Special Court for Sierra Leone, signed on 16 January 2002 [SCSL Statute]. 31 SCSL The Prosecutor v. Moris Kallon, Case No. SCSL-2003-07-PT, Decision on the Prosecution Motion for Immediate Protective Measures for Witnesses and Victims and for Non-Public Disclosure, 23 May 2003, para. 12.

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a coherent body of jurisprudence. However, as can be seen from the above mentioned jurisprudence, the Special Court Judges were determined to make their own contribution to the development of international humanitarian law. The Special Court mandate is to prosecute those who “bear the greatest responsibility” for atrocities committed during the conflict in Sierra Leone since 30 November 1996 as opposed to those “persons responsible” for the violations of serious humanitarian law in the territory of the former Yugoslavia since 1991 and “persons responsible” for genocide and other serious violations of international humanitarian law committed in the territory of Rwanda and Rwandan citizens between 1 January 1994 and 31 December 1994.32 Pursuant to UNSC Resolutions 1503 (2003) of 28 August 2003 and 1534 (2004) of 26 March 2004, the ICTY and ICTR were called upon to take all possible measures to complete investigations by the end of 2004, to complete all trial activities at first instance by the end of 2008, and to complete all work in 2010 (“completion strategy”).33 These envisaged dates have not been met for several factors which I would not elucidate further since this goes beyond the scope of this research. The mandate of the Special Court is clearly stated in its statute and this instrument also provides that the Rules of Procedure and Evidence (hereinafter RPE), are those of the ICTR amended mutatis mutandis to the Special Court.34 The SCSL Statute provides for the prosecution of crimes against humanity, violations of Common Article 3 of the Geneva Conventions and Additional Protocol II,35 and other serious violations of international humanitarian law, including crimes against peacekeepers and the recruitment of children.36

32 Cf. Article 1, SCSL Statute; Article 1, Updated Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, UN SC Res. 1660 (2006) [ICTY Statute]; Article 1, Statute of the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Other Such Violations Committed in the Territory of Neighbouring States, UN SC Res. 955 (1994) [ICTR Statute]. For a detailed analysis of the Special Court’s personal jurisdiction see pp. 74 et seq. 33 UN Security Council Resolution 1503, Doc. S / RES / 1503, 26 August 2003 and UN Security Council Resolution 1534, Doc. S / RES / 1534, 26 March 2004. 34 Article 14, SCSL Statute. 35 Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 12 August 1949, 75 UNTS 31 (entered into force 21 October 1950); Geneva Convention (II) for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 12 August 1949, 75 UNTS 85 (entered into force 21 October 1950); Geneva Convention (III) Relative to the Treatment of Prisoners of War, 12 August 1949, 75 UNTS 135 (entered into force 21 October 1950); Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War, 12 August 1949, 75 UNTS 287 (entered into force 21 October 1950); Protocol Additional to the Geneva Conventions of 12 August 1949 and Relating to the Protection of Victims of Non-International Armed Conflict, 8 June 1977, 1125 UNTS 609 (entered into force 7 December 1978) [AP II].

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The Special Court therefore was in a position to play a vital role in the field of international humanitarian law. It was in a position, on the one hand, to apply the existing jurisprudence of the ad hoc Tribunals thereby consolidating the law and on the other hand, to contribute in further developing international humanitarian law. With a mandate to apply the same substantive law – war crimes and crimes against humanity – as the ad hoc Tribunals, the Special Court’s jurisprudence could contribute towards achieving the certainty of the law.37 In the same light, the Special Court could contribute to the development of international humanitarian law through its particularities such as its competence to prosecute children of the age of 15 years,38 its amnesty regulation,39 and the presence of national (Sierra Leonean) judges40 as well as the application of national (Sierra Leonean) law.41 Meisenberg suggests that the presence in the Special Court Statute of norms that have already been applied by international criminal tribunals, as well as those that have not yet been applied and confirmed as customary rules, is proof that international humanitarian law has developed since the establishment of the ad hoc Tribunals, as well as proof of the deficiencies of international criminal courts.42 This work would indeed analyze whether the Special Court did play this role successfully.

Methodology / Objective of Study Certain of the above mentioned characteristics distinguish the Special Court from the ad hoc Tribunals and other existing international criminal courts. Nevertheless 36 Crimes against humanity (Art. 2); violations of Article 3 common to the Geneva Conventions and AP II (Art. 3); and other serious violations of international humanitarian law (Art. 4). The UN Secretary-General did not deem it appropriate to include the crime of genocide in the jurisdiction of the Special Court “because of the lack of any evidence that the massive, large-scale killing in Sierra Leone was at any time perpetrated against an identified national, ethnic, racial or religious group with an intent to annihilate the group as such” (Report of the Secretary-General, 4 October 2000, supra note 15, para. 13). The use of the term ‘recruitment’ should be interpreted broadly as including conscription, enlistment and use of child soldiers. It is further discussed in detail below in Chapter Six, part II. 37 Cf. Simon Meisenberg, Festigung, Fortentwicklung und Verbreitung: Der Beitrag des Sondergerichtshofs für Sierra Leone zum humanitären Völkerrecht, in: Deutsches Rotes Kreuz (ed.) Humanitäres Völkerrecht, Informationsschriften, 3, 2004, p. 175. Considering the fact that international humanitarian law is still developing, there is obviously no certainty of the law but the jurisprudence of international tribunals assist exactly towards achieving this goal. 38 Cf. SCSL Statute, Article 7. For a detailed analysis of the Special Court’s jurisdiction over children between 15 and 18 years of age, see infra pp. 271 et seq. 39 Ibid., Article 10. For a detailed analysis of the Special Court’s jurisprudence on amnesty, see infra pp. 226 et seq. 40 Ibid., Article 12. It should be noted that Judges are generally not considered as staff of the international criminal courts. 41 Ibid., Article 5. For a detailed analysis on the application of Sierra Leonean law, see infra chapter 7. 42 Cf. Simon Meisenberg, supra note 37, p.175.

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the Special Court was expected to apply the existing jurisprudence. The aim of this research is to provide a comprehensive analysis of the contribution of the Special Court to the development of international humanitarian law. The jurisprudence of the Special Court has been the subject of several articles and books; however, these have been based on a different approach. They have discussed the case law of the Special Court per se but have not looked comprehensively at the contribution, if any, of this case law to the development of international humanitarian law. The approach in this work has been, where applicable, to analyse the existing case law on the particular issue before looking at whether the Special Court confirms, departs from, or develops further this case law. In order to ease the lecture and facilitate a search for the Special Court jurisprudence and its potential contribution to international humanitarian law, the sequence applied in the work has been that of the Statute of the Special Court. In this way, the reader could easily identify the jurisprudence of the Special Court in relation to a particular provision of the Special Court Statute. International humanitarian law can be defined as the law of armed conflict or law of war and their effects. It is ‘a body of law that provides essential protection for those directly affected by an armed conflict, if it is respected by the parties to that conflict’.43 International humanitarian law constitutes the re-affirmation and enhancement of the traditional law of armed conflict (ius in bello); the purpose of which is to establish some parameters which protect people and property during wars.44 It serves thus as a balustrade for the exercise of state sovereignty. The history of international humanitarian law can be traced back to the mid-1850s, when Henri Dunant – founder of the International Red Cross – spearheaded the first universally applicable codification of international humanitarian law: the Geneva Convention of 1864. From the title of this work there is a presumption that international humanitarian law has evolved over the course of time and is still developing further. An analysis of whether international humanitarian law has developed since the mid-1850s would have been interesting and appropriate at this stage; however this is beyond the scope of this work. Hence for the sake of this work, it shall be considered as such that international humanitarian law has evolved since then and is further developing. In this light, we shall look at the contribution of the Special Court, if any, to this development. This contribution could be both in the form of reaffirming already existing law, thereby contributing to the certainty of the law, and by establishing new jurispru43 Cf. ICRC Report, Increasing Respect for International Humanitarian Law in Non-International Armed Conflicts, Geneva, February 2008, p. 5. 44 Cf. Germany, Military Manual (Humanitäres Völkerrecht in bewaffneten Konflikten – Handbuch – 1992), para. 102, available at http: // www.humanitaeres-voelkerrecht.de / page2. php.

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dence. However, it should be borne in mind that the parties to the Special Court Agreement, i.e., the international community and Sierra Leone, principally wanted to secure and consolidate international criminal law.45 In order to objectively analyze the contribution of the Special Court to the development of international humanitarian law, it is necessary to state the present jurisprudence of the ad hoc Tribunals and where applicable state practice before looking at the further contribution made by the Special Court. The fact that the ad hoc Tribunals have greatly contributed to the development of international humanitarian law is undisputed. Their contribution is extensive and relate inter alia to several issues such as the definition of an armed conflict, the application of customary international law in non-international armed conflicts, the situation under which a non-international armed conflict becomes an international conflict, and the definition of sexual crimes in armed conflicts.46 The research will analyze some of the jurisprudence of the Special Court thereby finding out if this consolidated the existing international humanitarian law and / or whether it provided a significant development in the field of international humanitarian law. The Special Court has in the course of its existence been faced with a variety of fascinating legal questions, involving aspects of procedural law, substantive law, international law and criminal law. In this light, its jurisprudence is of valuable importance to the development of international humanitarian law. The jurisprudence of the Special Court relates to issues such as gender-based crimes, the conscription or enlisting of children under the age of fifteen years into armed forces or groups or using them to participate actively in hostilities, amnesty, collective punishment, acts of terror, pillage, sexual slavery, the reaffirmation that a head of state shall not enjoy immunity for international crimes before an international criminal court, as well as the crime of intentionally directing attacks against peacekeepers. The Special Court has as well contributed to the establishment – alongside the Sierra Leonean Truth and Reconciliation Commission (TRC) – of an authoritative historical record for Sierra Leoneans and the international community.47 Having a consolidated jurisprudence from the various international criminal courts with regard to crimes against humanity and war crimes contributes to the development of international humanitarian law and solidifies its norms.48 Cf. Report of the Secretary-General, 4 October 2000, supra note 15, para. 41. ICTY, The Prosecutor v. Tadić, Case No. IT-94-1-AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995 (hereinafter ‘Tadić Appeal Decision on Jurisdiction’); ICTY, The Prosecutor v. Tadić, Case No. IT-94-1-A, Appeal Judgment, 15 July 1999 (hereinafter ‘Tadić Appeal Judgment’); ICTR, The Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Judgment, 2 September 1998 (hereinafter ‘Akayesu Trial Judgment’). 47 Cf. From The Taylor Trial to a Lasting Legacy: Putting the Special Court Model to the Test, Prosecutions Case Studies Series, International Center for Transitional Justice, 2009, p. 24. 48 Cf. Simon Meisenberg, supra note 37, pp. 175 et seq. 45 46

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It must, however, be acknowledged that one of the important contributions of the Special Court is its approach towards the main conflicting parties. By prosecuting both members of the rebel groups and those of the government forces, it sent a message that regardless of whether one is “fighting on the side of the angels”, there exist certain acts which are prohibited by law and the commission thereof would lead to prosecutions.49 Further, the jurisprudence of the Special Court reaffirmed – albeit to a limited extent – the existing legal principle that no rationale exists for committing international core crimes such as crimes against humanity or war crimes. Hence, however just and defendable the motive for fighting a war may appear to be, it is not and should not be considered as a mitigating factor.50 However, in order to better analyze the contribution of the Special Court to international humanitarian law it is imperative at this stage to set out the context of the creation of the Special Court. This requires briefly examining the origin of the conflict and the parties involved therein. Further, it is, as well as necessary to look at the establishment and structure of the Special Court.

49 The former Special Court Prosecutor Desmond da Silva did describe those fighting on behalf of the Government as “fighting on the side of the angels”. See Special Court Press release, 5 August 2008. 50 SCSL, The Prosecutor v. Moinina Fofana and Allieu Kondewa, Case No. SCSL-04-14-A, Appeals Judgment, 28 May 2008, para. 534.

Chapter 2

Politico-Historical Context of Sierra Leone prior to and during the Conflict Sierra Leone is a small nation located in West Africa having borders with Guinea in the northeast, Liberia in the southeast and the Atlantic Ocean in the southwest.51 Sierra Leone’s population, estimated at about 5.9 million is made up of 16 ethnic groups or tribes with the two main groups being the Mende and the Temne accounting for about 65 percent of the country’s population.52 Although Sierra Leone is dotted with many mineral resources such as aluminum, bauxite, chromite, diamonds, gold, iron ore, platinum and rutile, it is rated as one of the poorest countries in the world.53 Bearing in mind that a scrutiny of the events that took place in Sierra Leone establishes prima facie accountability for violations of International Humanitarian Law, it is worth proceeding by looking first at the chronology of events before looking at the organ(s) set up to investigate / punish those [most] responsible for the violation of international humanitarian law.

I. Pre-Colonial Phase Sierra Leone was established around the 16th Century as a trading post. It was a symbol of freedom in Africa since when Britain abolished the slave trade in 1772, it, particularly Freetown became a settlement for the- freed slaves from England and the United States of America.54 The fate of Sierra Leone changes in 1930 with the 51 Tom Piriello / Marieke Wierda, The Special Court for Sierra Leone Under Scrutiny, International Center for Transitional Justice, 2006, p. 4. See also L. Alison Smith / Catherine Gambette / Thomas Longley, Conflict Mapping in Sierra Leone, Violations of International Humanitarian Law From 1991 to 2002, No Peace Without Justice, 2004, p. 13 (“Conflict Mapping in Sierra Leone”). 52 Cf. Claudia Anthony, Historical and Political Background to the Conflict in Sierra Leone, in: Ambos / Othman (eds.), New Approaches in International Criminal Justice: Kosovo, East Timor, Sierra Leone and Cambodia, supra note 16, p. 132. See also Nancy Kaymar Stafford; A Model War Crimes Court: Sierra Leone, 10 ILSA J. Int’l & Comp. L. 1, 2003, p. 117; see also http: // www.indexmundi.com / sierra_leone / demographics_profile.html. 53 See Millenium Development Goals (MDG) Monitor report on Sierre Leone: www. mdgmonitor.org / factsheets_00.cfm?c=SLE&cd=694. 54 Cf. Anne Jung, Bericht einer Reise durch Sierra Leone (11 Juli – 25 Juli 2003), in Medico International.

II. Post-Colonial Phase

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discovery of diamond, which would turn out to be the most important export from this country. Further, the fight to control the diamond industry is what aggravated the conflict in Sierra Leone in the 1990s.55

II. Post-Colonial Phase When Sierra Leone gained independence from the United Kingdom on 27 April 1961 under the leadership of Milton Margai, it inherited a Westminster system of government consisting of a unicameral legislature with two political parties, one being in power (headed by a Prime Minister) and the other being in the opposition.56 This system however, did not last long and fell apart in 1967 after the country’s first real post-independence elections. Although the elections were won by Siaka Stevens of the opposition All People’s Congress (APC), a coup led by Brigadier David Lansana prevented Stevens from setting up his government.57 After a series of coups, on 18 April 1968 Stevens who in the meantime had exiled to Guinea was restored as the President of Sierra Leone.58 Sierra Leone, once viewed as the incarnation of Africa’s hope,59 experienced under the Siaka Stevens era a downward spiral, which included the banning of opposition parties, the introduction of a one-party system, widespread insurgency and extensive corruption.60 When Stevens stepped down in 1986, rather than handing over power to his constitutional successor, the incumbent vice-president, he went ahead and handed over to Major General Saidu Momoh. The insurgency started in 1991 when unhappy and disgruntled dissidents decided to overthrow the APC one party Government led at the time by President Joseph Saidu Momoh.61 On 23 March 1991, Ibid. SCSL, The Prosecutor v. Issa Hassan Sesay et al., Case No. SCSL-04-15-T, Judgment, 2 March 2009, para. 7; Conflict Mapping in Sierra Leone, supra note 51, p. 13; Claudia Anthony, Historical and Political Background to the Conflict in Sierra Leone, in: Ambos / Othman (eds.), New Approaches in International Criminal Justice, supra note 16, p. 135; Human Rights Watch, “We Will Kill You if You Cry, Sexual Violence in Sierra Leone Conflict”, Vol. 15, No. 1, January 2002, p. 9. 57 Jibrin Ibrahim, Democratic Transition in Anglophone West Africa, Dakar, Senegal, CODESRIA, 2003, pp. 43 – 48. 58 Ibid. 59 Cf. J. Peter Pham, A Viable Model for International Criminal Justice: The Special Court for Sierra Leone, 19 N.Y. Int’l L. Rev. 1, 2006, p. 37 . 60 Bankole Thompson, The Constitutional History and Law of Sierra Leone (1961 – 1995), University Press of America, Lanham, Maryland, 1997. 61 For a detailed account on the cause and course of the conflict see: Witness to Truth: Report of the Sierra Leone Truth and Reconciliation Commission, Volume 1 (2004); Claudia Anthony, Historical and Political Background to the Conflict in Sierra Leone, in: Ambos / Othman (eds.), New Approaches in International Criminal Justice, supra note 16, p. 131 et seq.; Lansana Gberie, A Dirty War in West Africa: The RUF and the Destruction of Sierra Leone, Hurst, 55 56

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the insurgents made up of Sierra Leonean dissidents, Liberian nationals loyal to Charles Taylor and some mercenaries from Burkina Faso enterred Sierra Leone through the East in a village known as Bomaru.62 The civil war in Sierra Leone claimed the lives of an estimated 75,000 individuals and displaced a third of the population.63 The conflict in Sierra Leone distinguished itself from several other conflicts that have and are taking place – particularly in Africa – by the fact that it was not based on an ethnic or political ideology. It was mainly due to corruption and greed for natural resources.64 The eleven year conflict was characterized by unspeakable brutality and serious crimes against the country’s population from multiple fronts, including at least three national factions; the Revolutionary United Front (RUF), the Armed Forces Revolutionary Council (AFRC) and the Civil Defence Forces (CDF) engaged in atrocities against enemy combatants, suspected collaborators and civilians. Some of the most heinous, brutal, and atrocious crimes ever recorded in human history were committed: “[I]nnocent civilians – babies, children, men and women of all ages – were murdered by being shot, hacked to death. Some had their genitals mutilated by the insertion of foreign objects. Sons were forced to rape mothers; brothers were forced to rape sisters. Pregnant women were killed by having their stomachs slit open and the foetus removed merely to settle a bet amongst the troops as to the gender of the foetus. Men were disembowelled and their intestines stretched across a road to form a barrier. Human heads were placed on sticks on either side of the road to mark such barriers. Hacking off the limbs of innocent civilians was commonplace”.65 The civil war was notable for the systematic use of mutilation, abduction, sexual violence, murder of civilians, the exploitation of Sierra Leone’s diamond reserves to finance the war effort and the use of child soldiers to commit atrocious acts.66 London, 2005; Paul Richards, Fighting for the Rainforest: War, Resources and Youth in Sierra Leone, James Currey, Oxford, 1996; Ibrahim Abdullah (ed.), Between Democrarcy and Terror: The Sierra Leone Civil War, Dakar, Council for the Development of Social Science Research in Africa (CODESRIA), 2004; Ibrahim Abdullah, Bush Path to Destruction: the Origins and Character of the Revolutionary United Front, 36 Journal of Modern African Studies, 2, 1998, pp. 203 – 235; David Keen, Conflict and Collussion in Sierra Leone, James Currey, Oxford, 2005; Human Rights Watch, Sierra Leone – Getting Away with Murder, Mutiliation, Rape: New Testimony From Sierra Leone, July 1999; Laurence Juma, The Human Rights Approach to Peace in Sierra Leone: The Analysis of the Process and Human Rights Enforcement in a Civil War Situation, 30 Denv Intl L & Poly 3, 2005, p. 325. 62 Cf. Jennifer L. Poole, Post Conflict Justice in Sierra Leone, in: Bassiouni (ed.), Post Conflict Justice, Transnational Publishers, Ardsley, New York, 2002, p. 567. 63 Id., p. 564. 64 Cf. Witness to Truth: The Report of the Sierra Leone Truth and Reconciliation Commission, Findings, 5 October 2004, mn 13 – 14, 39 et seq. 65 SCSL, The Prosecutor v. Alex Tamba Brima, Ibrahim Bazzy Kamara, and Santigie Borbor Kanu, Case No. SCSL-04-16-T, Sentencing Judgment, 19 July 2007, para. 34. The author however notes that the Accused were not convicted for all the crimes mentioned above.

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A former child soldier who was fighting on the side of the RUF testified that when information reached the RUF that their leader Foday Sankoh was going to be tried they were “ordered to kill any civilian that [they] came across. Any fighter (sic) or children suspected of being reluctant to do the killings were severely beaten. We were asked to advance and to do everything possible to terrorize the civilians. It was during this period that people’s hands and limbs were cut off, in Kono, Masingbi, Matatoka, Magburaka and Makeni”.67

III. The Peace Settlements The conflict in Sierra Leone witnessed a number of peace settlements which however did not last long enough to bring peace. Under the leadership of President Tejan Kabbah, the government of Sierra Leone and the rebel group known as the Revolutionary United Force (RUF) led by Corporal Foday Sankoh signed the first peace agreement on 30 November 1996 in Abidjan, Côte d’Ivoire (Abidjan Peace Accord).68 This agreement provided for the immediate end to the armed conflict and contained measures to consolidate the peace.69 This agreement was however short-lived and some scholars attribute its failure to the fact that the peace accord “bestowed an additional political advantage on [the rebels] because it led to the official recognition of the RUF”.70 Violence resumed shortly after the Abidjan Peace Accord with a military coup on 25 May 1997 resulting in the overthrow of the Kabbah ‘democratically elected’ government. The soldiers who ousted the Kabbah government formed the Armed Forces Revolutionary Council (AFRC) under the leadership of Major Johnny Paul Koroma.71 Initially the efforts of the international community to persuade the AFRC / RUF junta to return power to the Kabbah government remained fruitless. The main reason why the international community’s efforts failed is that they were not fully engaged in these efforts. This could be traced back to certain events in the world at the time such as the failures of the peacekeeping missions in Rwanda and

66 Cf. Babafemi Akinrinade, International Humanitarian Law and the Conflict in Sierra Leone, 15 Notre Dame Journal of Law, Ethics and Public Policy 2, 2001, pp. 392 – 405. 67 Cf. Amnesty International, Sierra Leone, Childhood – a Casualty of Conflict, Amnesty, AI Index: AFR 51 / 069 / 2000, 31 August 2000, p. 4. 68 This date would later be of vital importance since it was ultimately chosen as the starting date for the temporal jurisdiction of the Special Court for Sierra Leone. 69 Cf. Abidjan Peace Accord, between the Government of the Republic of Sierra Leone and the Revolutionary United Front of Sierra Leone, 30 November 1996, available at http: // www. sierra-leone.org / abidjanaccord.html (hereinafter Abidjan Peace Accord). 70 Cf. Jibrin Ibrahim, Democratic Transition in Anglophone West Africa, supra note 57, pp. 43 – 48. 71 SCSL, The Prosecutor v. Brima, Kamara and Kanu, Case No. SCSL-04-16-T, Judgment, 20 June 2007, para. 164.

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Somalia only a few years earlier; Nigeria – the largest contributor of troops for ECOMOG in Sierra Leone – was under the dictatorial rule of Sani Abacha. The US and UK were hesitant to provide financial and military support for the ECOMOG operations although these would have been an ideal way to exercise pressure on the AFRC / RUF junta in power.72 However, as a result of the international sanctions73 that the international community imposed on the AFRC / RUF junta, the latter agreed to sign the Conakry Peace Accords on 23 October 1997.74 These Accords called for the disarmament and demobilization of the rebel forces by the end of the year and the return to power of the Kabbah government by 22 April 1998.75 Yet again this attempt to end the war failed and war resumed in Sierra Leone.76 There was another peace agreement signed on 7 July 1999 in Lomé, Togo under the auspices of the then Chairman of the Economic Community of West African States (ECOWAS), late President Gnassingbe Eyadema (Lomé Peace Agreement).77 One of the controversial provisions of this peace agreement – ultimately being addressed by the Special Court – was its Article IX. This Article granted Foday Sankoh and all his combatants and collaborators complete pardon and amnesty and ensured that “no official or judicial action is taken against any member of the opposition and rebel groups in respect of anything done by them in pursuit of their objectives as a member of those organizations, since March 1991, up to the time of the signing of the present agreement”.78 This blanket amnesty for crimes against humanity was however not recognized, in accordance with international law, by the representative of the Secretary-General of the UN who was also a witness to the Lomé Peace Agreement thus enabling the prosecution of the RUF leadership by the Special Court.79 The recognition of amnesty for international 72 Cf. Jennifer L. Poole, Post Conflict Justice in Sierra Leone, in: Bassiouni (ed.), Post Conflict Justice, supra note 62, p. 570. 73 See UN Doc. S / RES / 1132 (1997). The Resolution contained a petroleaum ban and well as the shipment of arms to all the warring factions of the conflict in Sierra Leone. 74 Cf. Economic Community of West African States Six-Month Plan for Sierra Leone, 23 October 1997 – 22 April 1998, 23 October 1997, paras. 2, 5, available at http: //www.sierraleone.org/conakryaccord.html (hereinafter Conakry Peace Accord). 75 Cf. Jennifer L. Poole, Post Conflict Justice in Sierra Leone, in: Bassiouni (ed.), Post Conflict Justice, supra note 62, p. 571. 76 Ibid. 77 Peace Agreement between the Government of Sierra Leone and the Revolutionary United Front of Sierra Leone, UN Doc. S / 1999 / 777 (1999), available at http: // www.sierra-leone. org / lomeaccord.html (hereinafter Lomé Peace Agreement); see also Shola Omotola, The Sierra Leone Lomé Peace Accord, 10 Conflict Trends 3 (ACCORD), Pretoria, South Africa, 2007, pp. 38 – 43. 78 Cf. Article IX, Lomé Peace Agreement. See also Abdul Tejan-Cole, The Special Court for Sierra Leone: Conceptual Concerns and Alternatives, 1 Afr. Hum. Rts. L. J. 1, 2001, p. 107. 79 For general overview of conflict in Sierra Leone and the Amnesty granted thereafter see Stephen J. Rapp, The Compact Model in International Criminal Justice: The Special Court for Sierra Leone, supra note 11.

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crimes will be discussed below in Chapter Eight (III). The RUF however also violated the Lomé Peace Agreement resulting in the resumption of fighting which only ended in January 2002.80

IV. The Parties to the Conflict In order to have a realistic and accurate understanding of the larger context of the conflict in Sierra Leone which lasted from 1991 till 2000, it is necessary to bear in mind that this conflict involved several main parties at different stages of the conflict. There was the Republic of Sierra Leone Military Forces and assimilated (1.), the private military companies (5.) and the international peacekeeping forces (6.).

1. The Republic of Sierra Leone Military Forces and Assimilated a) Republic of Sierra Leone Military Forces The Republic of Sierra Leone Military Forces (RSLMF) also known as the SLA was made up of brigades, battalions, companies, platoons and sections and had barracks in provincial Sierra Leone as well as in the Western Area, including the Defence Headquarters at Cockerill and the Armed Forces Training Centre near Waterloo.81 Junior officers of the RSLMF successfully staged an initial coup on 29 April 1992 and created the National Provisional Ruling Council (NPRC) under the command of 25 year-old Captain Valentine Strasser before organizing presidential and parliamentary elections in February and March 1996, during which Kabbah was elected President of Sierra Leone.82 b) The Armed Forces Revolutionary Council Barely a year later, on 25 May 1997, seventeen junior-ranked soldiers of the SLA successfully staged another coup which led to the creation of the AFRC under the command of Johnny Paul Koroma who immediately suspended the Constitution and invited the RUF under the leadership of Foday Sankoh to share power.83 On 30 May 1997 Johnny Paul Koroma appointed Foday Sankoh to be the Deputy Head

80 SCSL, The Prosecutor v. Brima, Kamara and Kanu, Case No. SCSL-04-16-T, Judgment, 20 June 2007, para. 209. 81 Conflict Mapping in Sierra Leone, supra note 51, p. 36. 82 SCSL, Prosecutor v. Brima, Kamara and Kanu, Case No. SCSL-04-16-T, Judgment, 20 June 2007, paras. 67 et seq. See also Conflict Mapping in Sierra Leone, supra note 51, p. 36. 83 SCSL, The Prosecutor v. Brima, Kamara and Kanu, Case No. SCSL-04-16-T, Judgment, 20 June 2007, paras. 67 et seq.

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of State of Sierra Leone.84 Subsequent to the Lomé Peace Agreement in 1999, Johnny Paul Koroma’s AFRC forces split with one group re-joining the new SLA being trained by British forces,85 and another group supporting the RUF.86

2. The Revolutionary United Front The RUF was created as a movement to overthrow the APC regime and commenced its attacks on 23 March 1991.87 The RUF claimed its goals were to “fight against corruption because the past and present government seized political, economic and social justice in [Sierra Leone]”88 The RUF with a military-style internal organization and disciplinary system, with clearly identified positions and tasks allocated to its members, was composed initially of about 230 members the majority of whom were trained in Liberia and Libya.89 The RUF did not have an ethnic basis, but rather consisted of economically and politically disaffected as well as veterans from the conflict in Liberia. This relatively small RUF force received support from the National Patriotic Front for Liberia (NPFL) when it started its attacks in 1991.90

3. The National Patriotic Front for Liberia Although the National Patriotic Front for Liberia (NPLF) was not officially considered as one of the groups involved in the Sierra Leone conflict, because its leader Charles Taylor is indicted before the Special Court, the author deems it appropriate to briefly introduce this group. The NPLF was created in neighboring Liberia in 1989 with the aim of ousting the then President Samuel K. Doe, whose regime had been in power since 1980 and was perceived as corrupt and tribalistic.91 The NPFL under the leadership of Charles Taylor subsequently reduced its involvement in 84 Conflict Mapping in Sierra Leone, supra note 51, p. 42. The RUF / AFRC Cabinet was structured as follows: Chairman and Head of State, Vice Chairman and Deputy Head of State, Chief Secretary of State, Secretaries of State and Public Liaison Officers. 85 Cf. US Department of State, Sierra Leone Country Report on Human Rights Practices for 2000, Washington D.C., 2001, available at http: //www.state.gov/g/drl/rls/hrrpt/2000/af/ 755.htm. 86 SCSL, The Prosecutor v. Brima, Kamara and Kanu, Case No. SCSL-04-16-T, Judgment, 20 June 2007, para. 208. 87 SCSL, Prosecutor v. Isaa Sesay, Moris Kallon, Augustine Gbao, Case No. SCSL-04-15-T, Judgment, 2 March 2009, para. 9. 88 Cf. RUF manifesto, “The Footpaths to Democracy, Towards a new Sierra Leone”, available at http: //www.sierra-leone.org/documents.htm#RUF. 89 SCSL, Prosecutor v. Isaa Sesay, Moris Kallon, Augustine Gbao, Case No. SCSL-04-15-T, Judgment, 2 March 2009, para. 9. 90 SCSL, Prosecutor v. Isaa Sesay, Moris Kallon, Augustine Gbao, Case No. SCSL-04-15-T, Judgment, 2 March 2009, paras. 10, 12. 91 Conflict Mapping in Sierra Leone, supra note 51, p. 40.

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Sierra Leone due to the emergence in Liberia of the United Liberian Movement for Democracy (ULIMO) in 1992. However, the physical withdrawal of the NPFL from Sierra Leone was tantamount to the withdrawal of NPFL’s active support for the RUF. The ULIMO was mainly composed of Liberian refugees, amongst who were former members of the Liberian Armed Forces, who had found refuge in Sierra Leone and supported late President Doe. They used Sierra Leone as a staging point to launch attacks in the west of Liberia and in September 1991 fought alongside the SLA against the combined RUF / NPFL. By 1994 ULIMO existed with two distinct branches and two distinct acronyms: ULIMO-J (Freetown) and ULIMO-K (Liberia) with the former demobilizing in 1995 and being remobilized by Executive Outcomes, a private military company hired by the Sierra Leonean Government.92 The West Side Boys, a splinter group from the AFRC, created in the late 90s, was mainly made up of former members of the SLA. Although the West Side Boys officially regarded Johnny Paul Koroma as their leader, certain issues – the pattern of their actions during the conflict and their belief that they had not been adequately represented during the Lomé peace talks – supported the fact that they were a separate movement.93 4. The Civil Defence Force One of the consequences of the activities of the RUF / NPFL in the Southern and Eastern Provinces was the emergence of numerous civilian initiatives known as Civil Defence Units (CDU) between 1991 and 1993 in order to assist the struggling SLA. These CDU’s possessed a good knowledge of their immediate surroundings and were of important help to the SLA. These CDU’s merged in late 1995 to form the Civil Defence Force (CDF) with its headquarters being at ‘Base Zero’ in Talia Yawbecko, a town and chiefdom in the Bonthe district.94 The CDF was a pro-Government militia established by Kabbah95 and structured like the SLA with battalions, companies, platoons and sections. It was under the national coordination of Chief Samuel Hinga Norman, Deputy Minister of Defence in the Kabbah Government.96 Conflict Mapping in Sierra Leone, supra note 51, p. 41. IRIN West Africa, 12 August 1999; Conflict Mapping in Sierra Leone, supra note 51, p. 43. 94 SCSL, The Prosecutor v. Samuel Hinga Norman, Moinina Fofana and Allieu Kondewa, Case No. SCSL-04-14-T, Judgment, 2 August 2007, para. 303. 95 SCSL, The Prosecutor v. Samuel Hinga Norman, Moinina Fofana and Allieu Kondewa, Case No. SCSL-04-14-T, Judgment, 2 August 2007, paras. 72, 80. 96 At the time of Norman’s indictment and arrest he was Minister of the Interior in the Kabbah Government. For more on the circumstances surrounding this arrest, see testimony of Desmond de Silva QC, former Deputy Prosecutor and Prosecutor of the Special Court, in House of Commons International Development Selected Committee, Minutes of Evidences, 18 March 2003, HC548, para. 19. 92 93

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The CDF was primarily composed of multi-tribal traditional hunters known as the Kamajors, who to a great extent lived in the southern and eastern parts of Sierra Leone. The CDF was established greatly due to the serious mistrust harboured by the Sierra Leonean government and the civilian population towards the SLA.97

5. Private Military Companies Private military companies are increasingly playing a more active role in armed conflicts around the world.98 This phenomenon was also very true to the conflict in Sierra Leone where inter alia the Gurkha Security Guards Limited (GSG), a British company based in the Channel Islands was active. The GSG was hired by the NPRC Government to train and advise the SLA in jungle warfare tactics and provide security for the SLA base at Camp Charlie, near Mile 91.99 Although they were not engaged in direct military actions against the RUF, the latter in February 1995 ambushed and killed two GSG advisers and the aide-de-camp of the NPRC Chairman in Tonkolili district.100 Another private military company involved in Sierra Leone was the Executive Outcomes, a South African private military entity engaged in May 1995 to train SLA forces.101 They created a “Special Task Force” of approximately 600 re-mobilized Liberian militias from the ULIMO-J movement and assisted the SLA and the CDU’s in combating the RUF out of the Western Area. However, after the Abidjan Peace Agreement between the Sierra Leonean Government and the RUF, the Executive Outcomes was confined to their barracks and withdrew from Sierra Leone in 1997.102

97 Cf. Sierra Leone Truth and Reconciliation Commission Report, 27 October 2004, Vol. 2, Chapter 2, para. 331. 98 For more on the role of private military companies in armed conflicts and their responsibility as legal entities in international criminal law, see Simon Menz, Die Verantwortlichkeit der Mitarbeiter privater Militär-und Sicherheitsunternehmen nach Art. 8 ICC-Statut, Beiträge zum Internationalen und Europäschen Strafrecht, Duncker & Humblot, Berlin 2011. 99 The Gurkhas are of Nepalese origin and the Gurkha brigades have long served in the UK armed forces and are similar to the French Légion Etrangère (French Foreign Legion). They first served with the British in 1816 and have since then served in two world wars and a number of colonial conflicts. However, as a result of the UK’s decision to reduce the number of Gurkhas in its armed forces, many Grukhas found themselves in need of a job and were thus available for private security and military firms. For more background information see Alex Vines, Gurkhas and the Private Security Business in Africa, in Cillers J. and Mason p. (eds.): Peace, Profit and Plunder: The Privatisation of Security in War-Torn African Societies, 1999, pp. 129- 133: available at: http: // www.iss.co.za / Pubs / Books / PeaceProfitPlunder / Chap7.pdf. 100 Conflict Mapping in Sierra Leone, supra note 51, p. 46. 101 SCSL, The Prosecutor v. Brima, Kamara and Kanu, Case No. SCSL-04-16-T, Judgment, 20 June 2007, para. 32. 102 Ibid., para. 162.

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Sandline International, a British private military company linked to both Executive Outcomes and a few commercial mining companies, entered into an agreement with the exiled Government of Sierra Leone to assist it to recover power.103 This assistance was to be in the form of technical knowhow, military logistics and equipment, but no direct participation.104

6. [International] Peacekeeping Forces The ECOWAS Cease-fire Observer Group is the allied armed force of ECOWAS – a regional organization comprising 15 member States including Sierra Leone – and was established in 1990 to intervene in the Liberian civil war.105 This regional body’s Cease-fire Observer Group’s (ECOMOG) mandate in Sierra Leone, as established on 29 August 1997, was to “employ all necessary means” to enforce a trade embargo on Sierra Leone. However, as a result of a number of pacts and agreements between ECOWAS member States and Sierra Leone, ECOMOG forces found themselves fighting alongside the SLA which raises the question on what status these forces had and whether they were entitled to any immunity for their actions as peacekeepers. Further the question as to whether they could even be considered as peacekeepers and not just a party to the conflict needs to be addressed especially in light of the fact that “loyal” SLA battalions were put under the command of the ECOMOG 24th Infantry Brigade.106 More so, it is established that the ECOMOG forces provided supplies and logistical assistance to the CDF forces, as well as collaborated with the latter in fighting the AFRC and RUF forces.107 The United Nations Mission in Sierra Leone (UNAMSIL) replaced ECOMOG in October 1999.108 UNAMSIL was established as an Observer Mission with an initial 103 On 16 April 2004, Sandline International announced the closure of the company’s operations due to “lack of governmental support for Private Military Companies willing to end armed conflicts in places like Africa, in the absence of effective international intervention”. 104 Cf. Sir Thomas Legg, KCB QC and Sir Robin Ibbs, KBE; Report of the Sierra Leone Arms Investigation, 27 July 1998, paras. 4.15 – 4.18, available at www.fco.gov.uk / files / kfile / complete.zip. 105 ECOWAS was created in 1975 and has 15 members: Benin, Burkina Faso, Cape Verde, Côte d’Ivoire, Gambia, Ghana, Guinea, Guinea-Bissau, Liberia, Mali, Niger, Nigeria, Senegal, Sierra Leone, and Togo (Mauritania, a charter signatory, left the organization in 2002). Its founding Treaty (re-affirmed in 1993 by all member States) empowers it to “establish a regional peace and security observation system and peacekeeping forces where appropriate” (Article 58 [2][f]), available at www.sec.ecowas.int.). 106 Conflict Mapping in Sierra Leone, supra note 51, p. 49. 107 SCSL, The Prosecutor v. Samuel Hinga Norman, Moinina Fofana and Allieu Kondewa, Case No. SCSL-04-14-T, Judgment, 2 August 2007, paras. 83 – 86. 108 Cf. UN SC Resolution 1270, Doc. S / RES / 1270, 22 October 1999. However, out of the six Nigerian battalions deployed in Sierra Leone, four were absorbed by UNAMSIL, thus raising the question whether there was actually any change in the practice that existed thus far i.e. active participation in the conflict in support of the SLA. The United Nations Observer Mis-

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strength of 6,000 military personnel but due to the strengthening of its mandate in February 2000 through two UN Security Council resolutions, it finally attained a capacity of 17,500 being at the time the largest UN peacekeeping mission in the world.109 However, there was another participant to the conflict albeit for a short period and for a specific purpose. The taking of 500 UN peacekeepers as hostages by the RUF prompted the British Government to act by sending several hundred British Special Forces in August 2000 to release them.110 Although I have addressed this incident in the Peacekeepers section, it is important to note that this intervention was undertaken outside any U.N. mandate.111 Thus it is clear that the parties involved in the conflict in Sierra Leone were not all nationals of Sierra Leone, thus setting out prima facie indicia on the potential involvement of other states in the armed conflict. This in turn could have an impact on the legal characterization of the nature of the armed conflict. Although this characterization would not have any practical effect on the work of the Special Court, since international jurisprudence does not make a strict distinction between international and non-international armed conflicts,112 there exist different norms that apply for international and non-international conflicts.

sion in Sierra Leone was the predecessor of UNAMSIL with a six-month mandate (13 July 1998 to 13 January 1999) to “monitor the military and security situation in sierra Leone” and the “disarmament and demobilization of former combatants” and “assist in monitoring respect for international humanitarian law” and “monitor the voluntary disarmament and demobilization of members of the Civil Defence Force” (UN Security Council Resolution 1181, Doc. S / RES / 1181, 13 July 1998). For more on the incident that witnessed the hoastage taking of some 500 UN troops, see Funmi Olonisakin, Peacekeeping in Sierra Leone: the Story of UNAMSIL, Lynne Rienner: Boulder, Colorado 2008, pp. 53 – 66. 109 Cf. UN Security Council Resolutions 1289, Doc. S / RES / 1289, 24 February 2000, 1346, UN Security Council Resolution 1346, Doc. S / RES / 1346, 30 March 2001. 110 Cf. David Cortright / George A. Lopez, Sanctions and the Search for Security: Challenges to UN Action, Lynne Rienner Publishers, Boulder Colorado, 2002, p. 77; see also Michael Evans, Cook Sends Troops to Sierra Leone, Times (London), 8 May 2000. 111 Cf. Daniel Doktori, ‘Minding the Gap: International Law and Regional Enforcement in Sierra Leone’, 20 Fla. J. Int’l L. 3, 2008, p. 337. 112 ICTY, Tadić Appeal Decision on Jurisdiction, para. 97; SCSL, The Prosecutor v. Moinina Fofana, Case No. SCSL-2004-14-AR72(E), Decision on Preliminary Motion on Lack of Jurisdiction Materiae: Nature of the Armed Conflict, 25 May 2004, para. 25.

Chapter 3

The Objective, Establishment, Jurisdiction and Organization of the Special Court The Special Court represents a new generation of international criminal courts that have emerged in the international criminal justice system. Its objectives, mode of establishment, jurisdiction and organization all have something particular which distinguishes it from the ad hoc Tribunals, the ICC, as well as other so-called mixed Tribunals. This Chapter will analyze the objectives of the Special Court (I.), its establishment through a bilateral treaty (II.), its organization (III.) and the parameters of its jurisdiction (IV.).

I. The Objective / Aim of the Special Court The objectives of the establishment of the Special Court could be divided into three main subsections namely: the political objective (1.); the humanitarian objective (2.); and the legal objective (3.).

1. Political Objective The years of conflict and instability in Sierra Leone left the judicial system greatly decimated thus the need to revamp the national judicial system. The UN Security Council in Resolution 1315 noted the “negative impact of the security situation on the administration of justice in Sierra Leone and the pressing need for international cooperation to assist in strengthening the judicial system of Sierra Leone.”113 Moreover, the ultimate objective of the Special Court was to dispense justice for the victims while upholding the exact standards of due process required by contemporary international law. The establishment of the sui generis Court in Sierra Leone was an attempt by the international community to seek an alternative to the already existing ad hoc Tribunals which had turned out to be extremely costly and slow in producing results. Illustratively, one can see that the projected total budget of the final three years of the 113

UN Security Council Resolution 1315, Doc. S / RES / 1315, 14 August 2000.

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Special Court (2008, 2009 and 2010) was $ 68,354,100, which is approximately 40 percent less than the projected two year budget of the ICTR alone (2008 – 2009), which amounted to $ 280,386,800.114 Further, bearing in mind that the Sierra Leonean judicial system was seen as corrupt, thereby contributing to the instability in the country,115 it was hoped that the Special Court would be able to anchor justice mechanisms in the culture of the local community and transmit certain values such as impartiality and credibility.116 In this light, it was hoped that the internationalization of the criminal proceedings would help depoliticize and neutrailise these proceedings thereby rendering them acceptable by the local community.117 This approval by the local community was important if the government wanted to stabilize the situation in the country. The stability was needed in order to achieve national reconciliation and longterm peace.118 Further, it was anticipated that some form of capacity-building could be achieved by allowing the Special Court to bequeath its physical infrastructure (such as buildings, equipment and furniture) to the national justice system.119

2. Humanitarian Objective One of the goals the international community via the UN strived to achieve by establishing the Special Court with its seat in Freetown, Sierra Leone was to allow the victims and their families to witness the process in which their former tormentors are brought to justice. The Special Court was to be accessible to the victims in order for them to comprehend the purpose, process and outcome of such an institution of justice. While this particular objective could as well be seen as a political objective, it is the author’s view that due to the vital importance of victims understanding the whole procedure and hence having a feeling that the international community – via the Special Court – shares their grief, it is more approapriate to view this from a humanitarian perspective. It was hoped that this would generate a wider acceptance of the work of the Special Court120 as well as assist in healing the wounds caused by 114 Cf. M. Cherif Bassiouni, Mixed Models of International Criminal Justice, in: M.C. Bassiouni (ed.), The Pursuit of International Criminal Justice: A World Study on Conflicts, Victimization, and Post-Conflict Justice, Intersentia, Antwerp – Oxford – Portland, 2010, Vol. 2, p. 446. 115 Cf. Phoebe Knowles, ‘The Power to Prosecute: the Special Court for Sierra Leone from a Defence Perspective’, 6 ICLR 3, 2006, p. 392. 116 Ibid. 117 Cf. Abdul Tejan-Cole, The Special Court for Sierra Leone, Conceptual Concerns, supra note 78, pp. 107 et seq. 118 UN Security Council Resolution 1315, Doc. S / RES / 1315, 14 August 2000, preamble. 119 Report of the Secretary General, The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies, 23 August 2004, UN Doc. S / 2004 / 616, para. 44. 120 Cf. Christoph Mangold, Die völkerstrafrechtliche Verfolgung von Individuen durch internationale Strafgerichtshöfe, Lang, Frankfurt / Main 2007, pp. 291 – 336.

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the conflict. More so because of the experience from the ad hoc Tribunals, which are located in different countries miles away from the location where the crimes were actually committed. The ad hoc Tribunals appeared to be not only physically detached from the locations of the crimes but were also psychologically detached. The victims did not feel particularly attached or concerned by the proceedings that were and still are on going in The Hague and Arusha. Having said that, it should be noted that the location of the Special Court in the same place where the crimes were committed as well increases the risk of the proceedings not being independent and fair. An example here could be the fact that the Special Court – like all other international criminal courts – relies on the testimony of witnesses in order to be able to reconstruct what happened during the conflict and who is the person reyponsible for this atrocities. This turns out to be difficult when one bears in mind that those who come to testify could be easily identified as the leave the Court’s premises. In the case of proceedings that take place outside the country where the crimes were committeed, the fact that the witnesses need to be flown out renders it easier for them to testify since it is not obvious when they could be discretely flown out of the country and back. However, this particularity regarding the location of the Special Court, which is also viewed as one of the achievements of the Special Court is somewhat tainted by the Taylor case being held in The Hague.121 Moreover, in discussions with former staff of the Special Court, as well as some Sierra Leonean nationals who did not have any link to the Special Court, I was informed that despite the great efforts made, including the Outreach program, the general perception of the public was that this was something for the international community and not necessarily for the nationals.122 Many Sierra leoneans felt that the huge amount of money invested in the Special Court could have been used on some other projects which would have been more beneficial to their daily lives. This immediately raises the issue of perceptions and puts the cultural differences at the forefront. Although we do not necessarily all have the same views as to what we consider to be justice, the issue here is that the majority of the population in Sierra Leone struggle to have three meals a day, thus their immediate concern is not whether someone would be sent behind bars for the rest of his / her life but whether they would have food to eat. However, this begs the question whether people in financial need should not also be entitled to justice. If the approach towards such countries was always to have to determine between justice or food, with the latter prevailing, then the practical effect would be that such societies would never experi121 For more on impact of moving the Taylor case to The Netherlands see Padraig McAuliffe, Transitional Justice in Transit: Why Transferring a Special Court for Sierra Leone Trial to The Hague Defeats the Purposes of Hybrid Tribunals, in 55 Netherlands International Law Review 3, 2008, pp. 365 – 393. 122 Several of those with whom the author discussed did not want to be named publicly. However, people like Abdul Tejan-Cole and Jusu Yarmah did not mind any reference being made to them.

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ence justice. It should be reflected upon how the international community could assist such countries in the strive for justice and at the same time provide the poor population with basic needs. The Special Court was also suppose to permit victims to be heard, they were to be able to tell their stories, explaining what happened to them and the amount of suffering they experienced. It should be noted that this was supposed to be achieved without necessarily having the victims play a more active role as is the case at the ICC, where the victims are permitted to participate in the proceedings.123 This was to become part of the historical record about the events that occurred during the conflict. In this respect, the establishment of a new category of crime and the firstever prosecution of the recruitment of child soldiers permitted the voices of the victims to be heard and could even have an impact on future conflicts. By clearly establishing that such acts are prohibited, the deterrence effect of criminal proceedings would hopefully yield results in this regard.

3. Legal Objective Prior to the conflict in Sierra Leone, the judicial system was made up on the one hand of common law courts with a dual system (Magistrates Courts and High Courts) – reflective of the British judicial system, and on the other hand local traditional indigenous Courts.124 The indigenous Courts dealt mainly with land cases, family issues and sometimes criminal cases.125 Although the jurisdiction of the indigenous Courts is obviously broader, they could be compared with the Gacaca courts in Rwanda, which started functioning in 2005 and were only limited to the criminal cases surrounding the Rwanda genocide.126 However, this judicial system collapsed as a result of the conflict and was unable to render justice. The Special Court was established in order to render justice for the numerous victims of atrocities by prosecuting those who bore the “greatest responsibility” for the conflict. The victims of the atrocities had so often been faced with a culture of imCf. Art. 68 ICC Statute. Cf. Leonie von Braun, Internationalisierte Strafgerichte, Eine Analyse der Strafverfolgung schwerer Menschenrechtsverletzungen in Osttimor, Sierra Leone und Bosnien-Herzegovina, BWV, Berlin, 2008, p. 235. 125 Cf. Bankole Thompson, The Criminal Law of Sierra Leone, University Press of America, Lanham, Maryland, 1999, p. 3. 126 The Rwandan Justice Minister Tharcisse Karugarama recently announced that the Gacaca courts would be closed down in December 2011: “A final report will be completed by December and this chapter of Gacaca will be officially declared closed” (International Justice Tribune No. 129, 25 May 2011, p. 5, available at www.internationaljustice.nl). For more on the Gacaca courts, see William Schabas, ‘Genocide Trials and Gacaca Courts’, 3 JICJ, 4, 2005, pp. 879 et seq; Daja Wenke, Gacaca Rechtsprechung in Ruanda, ein Tradionelles Gerichtsverfahren in Modernisierter Form. Struktur, Probleme und Chancen, in 4 Wiener Zeitschrift für kritische Afrikastudien 2, 2002. 123 124

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punity on the part of the perpetrators. This is of course not unique to Sierra Leone or Africa in general. However, there was the need to end this culture of injustice and establish that there shall be no impunity for (international) crimes committed. We shall dwell further on the issue of impunity for international crimes later when looking at the Special Court’s jurisprudence on amnesty. Regrettably, due to the few convictions by the Special Court (eight in total thus far) and the lack of proceedings at the national level, it would be difficult to answer positively to the question whether this legal objective has been achieved. Another objective was to restore the respect for the rule of law in the post conflict society.127 The judicial system collapsed as a result of the physical elimination of most of the magistrates and lawyers of the country, thus the Special Court was to help restore and strengthen the national judicial system.128 The then UN SecretaryGeneral Annan stated that: “[t]here are a number of important benefits to locating tribunals inside the countries concerned, […]. In the nationally located tribunals, international personnel work side by side with their national counterparts and on-the-job training can be provided to national lawyers, officials and staff. Such benefits where combined with specially tailored measures for keeping the public informed and effective techniques for capacity-building, can help ensure a lasting legacy in the countries concerned.”129

While it is true that the fact that Sierra Leonean nationals by working at the side of staff from other nationalities with potentially more experience, permits the former to learn on the job, the ultimate expectations are not a given. This is so because, several of the Sierra Leonean nationals who were expected to assist in rebuilding the local judicial system have picked up better paid jobs abroad and left the country. Hence, the success of the Special Court in this regard is rather limited due to this exodus and rather overzealous view of the UN Secretary-General during the establishment of the Special Court.130 Nevertheless, it would be fair to say that some Sierra Leonean nationals such as the former Deputy Prosecutor Joseph Kamara did indeed stay in Sierra Leone.131 In general, the Special Court was to be an unprecedented opportunity to strengthen the rule of law and contribute to the maintenance 127 SCSL, Fourth Annual Report of the President of the Special Court for Sierra Leone, January 2006 to May 2007, p. 41. 128 Cf. Cherif Bassiouni, Mixed Models of International Criminal Justice, in: Cherif Bassiouni (ed.), The Pursuit of International Criminal Justice: A World Study on Conflicts, Victimization, and Post-Conflict Justice, Intersentia, Antwerp – Oxford – Portland, 2010, Vol. 2, p. 446. 129 Report of the Secretary General, The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies, 23 August 2004, UN Doc. S / 2004 / 616, para. 44. See also Seventh Annual Report of the President of the Special Court for Sierra Leone, June 2009 to May 2010, pp. 44 et seq. 130 Supra note 122. 131 Joseph Kamara left the Special Court to become the Chairman of Sierra Leone’s AntiCorruption Commission. See http: // www.sierraleonedailymail.com / archives / 442.

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of peace, security and stability particularly in Sierra Leone and generally the whole West African region. Further, international humanitarian law was to be invigorated in order to prevent future violations of international humanitarian law i.e. the Special Court was to have a deterrent effect.132 The Special Court however, seems to have some impact on the national justice system. There have been reports that Special Court decisions have been cited in domestic proceedings.133 This is certainly a positive outcome of the establishment of the Special Court and hopefully more of its jurisprudence would be relied upon, thereby achieving its goal of improving the rule of law in Sierra Leone and in Africa in general.

II. Establishment The Special Court contrary to the ad hoc Tribunals was established by an agreement between the United Nations and the Government of Sierra Leone.134 The UN Security Council in Resolution 1315 authorized the creation of the Special Court but its establishment was only later achieved through the negotiated Agreement.135 This agreement was annexed to the SCSL Statute which in Article 1 mandated the Special Court to try those leaders bearing the ‘greatest responsibility’ for serious violations of international humanitarian law and Sierra Leonean law committed in the territory of Sierra Leone since 30 June 1996, as against those “mostly” responsible as suggested by the UN Secretary-General.136 132 The author notes that it is highly debatable whether international criminal law indeed has a deterrent effect on future potential violators of international humanitarian law. The ad hoc Tribunals, however, work on the basis that there is indeed a detterent effect. See for example recent ICTY jurisprudence in the case Prosecutor v. Gotovina et al., Case No. IT-06-90-T, Judgment, 15 April 2011, para. 2597. See also Prosecutor v. Momir Nikolic, Case No. IT-0260 / 1-A, Judgement on Sentencing Appeal, 8 March 2006, para. 45. 133 Cf. Human Rights Watch Report: Justice in Motion, The Trial Phase of the Special Court for Sierra Leone, 1 November 2005, p. 35. 134 Agreement between the United Nations and the Government of Sierra Leone on the Establishment of a Special Court for Sierra Leone signed on 16 January 2002, reprinted in Charles Jalloh, Consolidated Legal Texts for the Special Court for Sierra Leone, Martinus Nijhoff Publishers, Leiden, Boston, 2007, pp. 7 – 19. 135 For an analysis of UN Security Council Resolution 1315, see Lawyers Guide to the Special Court for Sierra Leone, No Peace without Justice, 10 March 2004, available at http: // www.npwj.org / Newsroom / List-publications.html. 136 Article 1 (1) of the SCSL Statute. See also UN Security Council Resolution 1315, Doc. S / RES / 1315, 14 August 2000. The approach to focus prosecution on those bearing the greatest responsibility has hereafter been adopted by other international criminal tribunals with ICTY and ICTR even introducing a Rule (Rule 11bis) in their Rules of Procedure and Evidence permitting the Tribunals to send to domestic jurisdictions cases that do not involve those bearing the greatest responsibility. Admittedly this approach by the ICTY and ICTR was also

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51

Another fundamental difference in the establishment of the Special Court was the fact that it was envisaged that it would not receive funding from the regular UN budget as was the case with the ICTY and ICTR137 but would rely on voluntary donations by interested States.138 This mode of financing was being introduced for the first time in the international justice system and has been criticized by several stakeholders (NGO’s, academics, practitioners) including the UN Secretary-General. The then UN Secretary-General Kofi Annan criticized this mode of financing as being ‘neither viable nor sustainable’ and instead suggested having ‘assessed contributions’.139 This suggestion was, however, rejected and in speaking with practitioners at the Special Court, it is clear that these fears were confirmed and the work of the Special Court was influenced to a certain extent by the difficulties in sustaining adequate funding.140 Hence, the high authorities of the Special Court (President of the Court; Prosecutor and Registrar) spent valuable time lobbying for funds from potential donor countries rather than actually exercising their functions at the Special Court. This definitely slowed down the pace at which work ought and would normally have been carried out. While the work of the Special Court is however gradually reaching an end despite these difficulties, the author – in light of the current economic crises that the world is facing – is very skeptical whether the Special Court would have been able to function. Article 7 of the SCSL Statute further provided that: “it is the understanding of the Parties that interested States will establish a management committee to assist the Secretary-General in obtaining adequate funding, and provide advice and policy direction on all non-judicial aspects of the operation of the Court, including questions of efficiency, and to perform other functions as agreed by interested States. The management committee shall consist of important contributors to the Special Court”. Thus, the management committee was envisaged to have an oversight function similar to the UN Security Council’s function vis-à-vis the ICTR and ICTY. This provision was regarded by some accused as implying that the Special Court is not in a position to act independently and this lack of judicial independence was synonymous to the absence of the possibility to have a fair trial.141 There was the

introduced as part of their completion strategy. For a detailed analysis of the personal jurisdiction of the Special Court see infra pp. 74 et seq. 137 The ICTY and ICTR, as subsidiary organs created by the UN Security Council are fully funded from the UN regular budget in accordance with Article 17 of the United Nations Charter. See also Articles 30 and 32 of the ICTR and ICTY Statutes respectively. 138 See Article 6 of the SCSL Statute. 139 Cf. Report of the Secretary-General, 4 October 2000, supra note 15, para. 70. 140 Supra note 122. 141 SCSL, The Prosecutor v. Sam Hinga Norman, Case No. SCSL-2004-14-AR72 (E), Decision on Preliminary Motion based on Lack of Jurisdiction (Judicial Independence), 13 March 2004, para. 18.

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fear that donor States could manifest their displeasure on the outcome of proceedings by simply withholding their contributions to the Special Court. The Special Court Appeals Chamber dismissed this fear as being “far-fetched” and devoid of any factual basis. The Special Court Appeals Chamber found that not every inadequacy in funding arrangements could lead to an inability of Courts to dispense justice without bias.142 Interestingly, no one seems to believe that the fact that the ad hoc Tribunals were created by the UN Security Council and their budgets are approved by the General Assembly does have an impact on the independence of these ad hoc Tribunals. It may be argued that the General Assembly is made up of all members of the United Nations in accordance with Article 9 of the UN Charter and the Security Council in accordance with Article 24 of the UN Charter acts on behalf of all members of the UN, thus their actions best represent the interest of the international community. Nevertheless, their actions are not always devoid of the political interest of some member States and not necessarily the interest of the international community. Bearing this in mind, it would be fair to say that although the Special Court Appeals Chamber dismissed the arguments raised by Sam Hinga Norman as “far-fetch”, the system of financing as established in the SCSL Statute is a mere reflection of the international criminal justice system as it is, i.e. vulnerable to political interest of States.143

III. Organization of the Special Court The Special Court is composed principally of three organs: the Chambers (comprising one or more Trial Chambers and an Appeals Chamber); the Office of the Prosecutor; and the Registry (Article 11).144 In addition, the Agreement between the UN and the Government of Sierra Leone provided for the establishment of a Management Committee, which shall consist of important contributors to the Special Court.145 The genesis of this Management Committee is a letter from the President of the Security Council146 in response to 142 SCSL, The Prosecutor v. Sam Hinga Norman, Case No. SCSL-200-14-AR72 (E), Decision on Preliminary Motion based on Lack of Jurisdiction (Judicial Independence), 13 March 2004, para. 26. 143 For more on the vulnerability of the international criminal justice system vis-a-vis realpolitic, see Kai Ambos, Prosecuting International Crimes at the National and International Level: Between Justice and Realpolitik, in: Wolfgang Kaleck / Michael Ratner / Tobias Singelstein / Peter Weiss (eds.), International Prosecution of Human Rights Crimes, Springer Verlag, Berlin 2006, pp. 55 – 68. 144 Cf. SCSL Statute, Article 11. 145 Cf. Agreement between the United Nations and the Government of Sierra Leone on the Establishment of a Special Court for Sierra Leone, supra note 14, Article 7. 146 Letter from the President of the Security Council addressed to the Secretary-General, 22 December 2000, UN Doc. S / 2000 / 1234.

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the Secretary-General’s report wherein the latter suggested that the Special Court be financed through assessed contributions.147 In the letter, the President of the Security Council suggest that: “[I]n order to assist the court on questions of funding and administration, it is suggested that the arrangements between the Government of Sierra Leone and the United Nations provide for a management or oversight committee which could include representatives of Sierra Leone, the Secretary-General of the United Nations, the Court and interested voluntary contributors. The management committee would assist the court in obtaining adequate funding, provide advice on matters of Court administration and be available as appropriate to consult on other non-judicial matters.”148

Regarding membership, the initial criterion was the financial support of a state to the Special Court. However, during discussions on this issue, other criteria were advanced such as geographic representation, acknowledgement of the role played by states that had strongly supported the Special Court as well as those states that had strongly contributed to putting an end to the conflict.149 Article 7 of the Agreement between the UN and the Government of Sierra Leone reads in its relevant part that: “[T]he management committee shall consist of important contributors to the Special Court”. 150 The functions of the Management Committee, as ultimately provided in the Agreement between the UN and the Government of Sierra Leone are inter alia to assist the UN Secretary-General in obtaining funding for the Special Court and provide advice and policy direction on all non-judicial aspects of the operation of the Special Court.151 It could be compared with the Assembly of States Parties at the ICC which serves as a management oversight and legislative body albeit that in the case of the Special Court, the management Committee did not have any legislative functions.152 However, the idea of having an oversight body for international criminal courts is something that is novel in the intenational criminal justice field and worthy of praise.

Report of the Secretary-General, 4 October 2000, supra note 15, para. 70. Letter from the President of the Security Council addressed to the Secretary-General, 22 December 2000, UN Doc. S / 2000 / 1234. 149 Phakiso Mochochoko / Giorgia Tortora, The Management Committee for the Special Court for Sierra Leone, in: Cesare p. Romano / André Nollkaemper / Jann Kleffner (eds.), Internationalized Criminal Courts, Sierra Leone, East Timor, Kosovo and Cambodia, OUP, Oxford, 2004, pp. 141 et seq. 150 The members of the Management Committee are Canada, Nigeria, Netherlands, Sierra Leone, United Kingdom, United States and the UN Secretariat (Office of Legal Affairs, Office of Programme Planning, Budget and Accounts, Office of Human Resource Developments and Office of Central Support Services). [List taken from the Sixth Annual Report of the President of the Special Court for Sierra Leone 2008 – 2009, p. 67, Annex VII]. 151 Id. (emphasis added). 152 Cf. ICC Statute, Article 112. 147 148

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Chapter 3: Objective, Establishment, Jurisdiction and Organization Chart 1 Chart of the Organisation of the Special Court

Management Commitee

Chambers - Appeals Chamber - Trial Chamber I - Trial Chamber II

President

Registry

Prosecution

Court Management

Prosecution Section

Outreach and Public Affairs

Appeals Section

Investigation Section

SEAPA

Legal Operations

1. The Chambers The Chambers consist of a Trial Chamber and an Appeals Chamber with the possibility of creation of a second Trial Chamber.153 Each Trial Chamber shall be made 153 At the peak of proceedings before the Special Court, there were two Trial Chambers and one Appeals Chamber.

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up of three judges, one appointed by the Government of Sierra Leone and two by the UN Secretary-General (Article 12(1)(a)). It is important to note that the UN Secretary-General appointed one alternate judge in the case of Charles Taylor, which brought the total number of judges to twelve, thereby exceeding the maximum number of eleven judges as set out in Article 12(1) of the SCSL Statute.154 The Appeals Chamber consists of five judges, of whom two shall be appointed by the Government of Sierra Leone, and three by the UN Secretary-General (Article 12(1)(b)). The UN Secretary-General appoints these three judges ‘upon nominations forwarded by States, and in particular the member States of the Economic Community of West African States and the Commonwealth, at the invitation of the Secretary-General’.155 According to Article 12(3), the judges of the Appeals Chamber and the judges of the Trial Chamber, respectively, shall elect a presiding judge who shall conduct the proceedings in the Chamber to which he or she was elected. The presiding Judge of the Appeals Chamber shall also exercise the functions of the President of the Court and is elected by a majority of the votes of the Judges appointed to the Appeals Chamber for a renewable term of one year. The President of the Special Court is Justice Jon Moadeh Kamanda (Sierra Leone), while Justice Emmanuel Ayoola is the Vice-President.156 Article 2(4) of the Agreement between the Government of Sierra Leone and the UN, and Article 13(3) of the SCSL Statute provide that – contrary to the ICC Judges that represent the principle legal systems of the world (African regional group, Asian regional group, Eastern European regional group, Latin America and the Caribbean States group and Western Europe and Others group)157 and are elected for three, six and nine years158 – the Judges of the Special Court shall be appointed for a three year term and shall be eligible for re-appointment. 154 Cf. http: // www.sc-sl.org / ABOUT / CourtOrganization / Chambers / tabid / 86 / Default.aspx. Currently only the Appeals Chamber is still in function due to pending appeal proceedings in the case against Charles Taylor. The Trial Chamber in the Taylor case on 26 April 2012 found the accused guilty of all eleven counts charged against him (see SCSL, Prosecutor v. Charles Ghankay Taylor, Case No. SCSL-03-1-T, Judgment Summary, 26 April 2012, paras. 180 – 181) and sentenced him to a term of 50 years in prison for planning and for aiding and abetting crimes committed by rebel forces in Sierra Leone during the country’s decade-long civil war (see Sentencing Judgment, 30 May 2012). 155 Cf. Agreement between the United Nations and the Government of Sierra Leone on the Establishment of a Special Court for Sierra Leone, 16 January 2002, Art. 2(2)(a). 156 Cf. http: // www.sc-sl.org / ABOUT / CourtOrganization / Chambers / AppealsChamber / tabid / 87 / Default.aspx. 157 For more on the regional groups see Ignaz Stegmiller, The Pre-Investigation Stage of the ICC, Criteria for Situation Selection, Beiträge zum Internationalen und Europäischen Strafrecht, Bd. 8, Duncker & Humblot, Berlin, 2011, pp. 47 – 48. 158 During the first electoral procedure which took place from 3 to 7 February 2003, the Assembly of States Parties to the Rome Statute (ASP) elected eighteen judges for terms of three, six and nine years respectively.

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With regard to their qualifications, Article 13(1) of the SCSL Statute provides that: “The Judges shall be persons of high moral character, impartiality and integrity who possess the qualifications required in their respective countries for appointment to the highest judicial offices. They shall be independent in the performance of their functions, and shall not accept or seek instructions from any Government or any other source.” In the selection of the Judges, and their assignment to the different Chambers, due consideration shall be given to their experience in international law, including international humanitarian law, human rights law, criminal law and juvenile justice (Article 13(2)). The need to have a Judge with experience in juvenile justice could be seen from the fact that, as mentioned above, the Special Court has jurisdiction over persons of 15 years of age (Article 7(1)). The disposition of such cases, required special measures such as ordering care guidance and supervision orders, community service orders, counseling, foster care, correctional, educational and vocational training programs, approved schools and, as appropriate, any programs of disarmament, demobilization and reintegration or programs of child protection agencies (Article 7(2)). However, while the provisions relating to the qualifications of the Judges appear to be satisfactory at first sight, their application was not at all convincing. For example the selection process is unclear and has in a number of occasions resulted in some individuals with no experience in the field being appointed Judges.159 The Judges are also empowered to amend the RPE or adopt additional rules where the applicable Rules do not, or do not adequately, provide for a specific situation (Article 14(2)). The Judges in carrying out such an amendment may be guided, as appropriate, by the Criminal Procedure Act of Sierra Leone from 1965. Although the empowerement of Judges to amend the rules that apply to them appears to be common practice in international criminal courts, the author is uncomfortable with this practice. The Judges are in a position to amend the rules at will to suit themselves without any form of control by any organ whatsoever. The Judges thereby have a legislative and judiciary role which is inconsistent with the principle of separation of powers. This is all the more clear when one looks at the situation at the domestic level. Although Judges – in the common law system – are not only empowered to apply the law but also to further develop it through their jurisprudence, there is a certain degree of control. This control exist by the fact that the jurisprudence must be in accordance with the constitution of the respective state. At the international level, there is no such constitution, hence the Judges are sort of given a carte blanche and are free to act as they so deem it right.160 159 For a general view on the selection of judges in international criminal courts see Ruth Mackienze / Kate Malleson / Penny Martin / Philippe Sands, Selecting International Judges: Principle, Process, and Politics, OUP, Oxford, 2010. 160 This freedom should not be confused with the judicial independence Judges require in order to fully exercise their functions impartially.

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Furthermore, the fact that some of the judges were Sierra Leoneans increased the likelihood that they may have personal interests in a particular case or appear to be impartial. This was the case with Judge Geoffrey Robertson who was the subject of a motion to disqualify him from sitting on the Appeals Bench dealing with the case against Foday Sankoh and the other RUF members. He was ultimately disqualified from the case because he had in a book he published prior to becoming a Judge at the Special Court, described Sankoh as ‘the nation’s butcher’ and made negative statements about the RUF.161 Chart 2 Chart of the Organisation of Chambers

Appeals Chamber

Trial Chamber I

Trial Chamber II

2. The Office of the Prosecutor The Office of the Prosecutor (OTP) is an independent and separate organ of the Special Court and has the powers to question suspects, victims and witnesses, collect evidence and conduct on-site investigation (Article 15(2)). The OTP is headed by a Prosecutor who shall be appointed by the UN Secretary-General for a threeyear term and shall be eligible for re-appointment (Article 15(3)). The Prosecutor is responsible for the investigation and prosecution of persons who bore the “greatest responsibility” (Article 15(1)). In order to execute its functions of investigation, including providing for the safety, the support and the assistance of potential witnesses and sources, the OTP may seek the assistance of any State authority concerned, as well as of any relevant international body, including the International 161 SCSL, Prosecutor v. Sesay, Kallon, Gbao, Case No. 04-15-AR15, Decision on Defence Motion Seeking the Disqualification of Justice Robertson from the Appeals Chamber, 13 March 2004. See also Ruth Mackenzie, Cesare Romano, Yuval Shany with Philippe Sands, The Manual on International Courts and Tribunals, 2nd edn., OUP, Oxford, 2010, pp. 217 – 218.

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Criminal Police Organization (INTERPOL).162 The first Prosecutor was David Crane, who handed over to Deputy Prosecutor Desmond Da Silva in 2005.163 Stephen Rapp was appointed Prosecutor in December 2006 before handing over to Joseph Fitzgerald Kamara, a Sierra Leonean national who served as acting Prosecutor till February 2010. The present Prosecutor is Brenda Hollis, who was appointed to this function in February 2010.164 Similarly to the Judges, the Prosecutor is appointed by the by the UN Secretary-General and this decision lies entirely within the discretionary powers of the UN Secretary-General. The procedure is not transparent and can be subject to criticism especially in light of the fact that some of the prosecutors appointed by the UN Secretary-General did not necessary have any prior experience as a prosecutor nor were they familiar with the region. While these are not necessarily conditio sine qua non to being appointed as Prosecutor, they certainly would assist in better understanding the situation and doing a more effective job. Having said that, it should be noted that the Prosecutor, in carrying out his or her functions independently, is assisted by a Sierra Leonean Deputy Prosecutor appointed by the Government of Sierra Leone, in consultation with the UN SecretaryGeneral. The Prosecutor is also assisted by such other Sierra Leonean and international staff as may be required (Article 15(4)). Hassan Jallow interpreted Article 15(4) SCSL Statute – as per the Common law Rule of interpretation “inclusion unius … exclusio alterius” – as implying that the Prosecutor should always be a non-Sierra Leonean national.165 Apart from the period September 2009 to February 2010 when Joseph Fitzgerald Kamara, a Sierra Leonean national served as Acting Prosecutor, time has proven Hassan Jallow right since all other (four in number) Prosecutors have been non-Sierra Leonean nationals. Considering the nature of the crimes committed and sensitive nature of some of the victims (girls, young women and children who were raped, sexually assaulted and abducted), the Prosecutor shall give due consideration to recruiting staff with experience in gender-related crimes and juvenile justice (Article 15(4)). The OTP is divided into five sections: Prosecutions, Appeals, Investigations, Section for Evidence, Archiving and Post Operations Access (SEAPA) and Legal Operations.166

162

Cf. http: //www.sc-sl.org/ABOUT/CourtOrganization/Prosecution/tabid/90/Default.

aspx. 163 Cf. William Schabas, The UN International Criminal Tribunals, The former Yugoslavia, Rwanda and Sierra Leone, Cambridge University Press, Cambridge, 2006, p. 603. 164 Cf. http: //www.sc-sl.org/ABOUT/CourtOrganization/Prosecution/tabid/90/Default. aspx. 165 Cf. Hassan B. Jallow, ‘The Legal Framework of the Special Court for Sierra Leone’, in: Ambos / Othman (eds.), New Approaches in International Criminal Justice: Kosovo, East Timor, Sierra Leone and Cambodia, supra note 16, pp. 149 – 171. 166 Cf. http: //www.sc-sl.org/ABOUT/CourtOrganization/Prosecution/tabid/90/Default. asp.

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Chart 3 Chart of the Office of the Prosecutor Office of the Prosecutor

Appeals

Office of the Deputy Prosecutor

Prosecutions Section

Legal Operatios Section

Office of the Deputy Prosecutor

HSO CT Trial Team

Source: Seventh Annual Report of the President of the Special Court for Sierra Leone.

3. The Registry The Registry is one of the three main organs of the Special Court and is responsible for ‘administration and servicing’.167 It is headed by a Registrar who shall be appointed for a re-eligible three-year term by the UN Secretary-General after consultation with the President of the Special Court.168 Contrary to the situation at the ICTY and ICTR, where the RPE provide that the President has to consult the judges prior to appointing the Registrar, the Special Court’s RPE do not contain such a provision thereby vesting the entire power of selection within the Special Court on the President of the Special Court. According to Rule 33 (A), ‘[t]he Registrar shall assist the Chambers, the Plenary Meetings of the Special Court, the Judges and the Prosecutor, the Principal Defender and the Defence in the performance of their functions. Under the authority of the President, he shall be responsible for the administration and servicing of the Special Court and shall serve as its channel of communication.’ Other functions of the Registrar include the administration of the Court, which comprises the sections of Finance, Personnel, General Services, Facilities Management, Procurement, Communications and Information Technology, and Security.169 Cf. Article 16(1) SCSL Statute. Cf. Article 16(2) and (3) SCSL Statute. The requirement that the Registrar must be a UN staff member can be justified by the fact that the UN Financial Rules and Regulations, as well as the UN decision to transfer funds from the UN Trust Fund for the Special Court to the Special Court, both require the funds be received by a UN official. 169 Cf. http: //www.sc-sl.org/ABOUT/CourtOrganization/TheRegistry/tabid/79/Default. aspx. 167 168

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Within the Registry, there are a number of sections and units, which include the Public Affairs Office and Outreach section170 and the Court Management section (which consist of five units: the Court Records and Archives Unit, the Library, the Court Support Unit, the Language Unit and Stenography Unit),171 Victims and Witness Support Unit,172 and the Detention Unit. With regard to its Victims and Witness Support Unit, the Special Court can be particularly praised for having provided a comprehensive scheme of protection and support for the several victims and witnesses who testified in the course of its proceedings. The Special Court effectively provided shelter (prior to and during testimony), medical assistance and psychological counselling for witnesses.173 However, with regards to the accused, one of the deficiencies of the Special Court in particular and the international criminal law system in general is the fact – from the point of view of some victims – it appears that accused are sort of rewarded for having committed international crimes.174 The Special Court was unable to come up with a pragmatic solution to the problem of how to reconcile on the one hand the desire to have the same standards applicable to all accused in international criminal courts and on the other hand the sensitivity of the victims and citizens in countries where the standard of living is very low. Such a solution would have been of great benefit

170

This section was created in April 2008 by a merger of Press and Public Affairs and Out-

reach. 171 As a result of the proceedings against Charles Taylor being held in The Hague, there is a Court Management sub-office in The Hague with the same units as above, albeit on a smaller scale. 172 Cf. Rule 34, Special Court’s RPE: Witnesses and Victims Section (amended 29 May 2004) (A) The Registrar shall set up a Witnesses and Victims Section which, in accordance with the Statute, the Agreement and the Rules, and in consultation with the Office of the Prosecutor, for Prosecution witnesses, and the Defence Office for Defence witnesses, shall. Amongst other things, perform the following functions with respect to all witnesses, victims who appear before the Special Court, and others who are at risk on account of testimony given by such witnesses, in accordance with their particular needs and circumstances: i. Recommend to the Special Court the adoption of protective measures for them; ii. Provide them with adequate protective measures and security arrangements and develop long and short-term plans for their protection and support; iii. Ensure that they receive relevant support, counseling and other appropriate assistance, including medical assistance, physical and psychological rehabilitation, especially in cases of rape, sexual assault and crimes against children. (B) The Section personnel shall include experts in trauma, including trauma related to crimes of sexual violence and violence against children. Where appropriate the Section shall cooperate with non-governmental organizations. 173 Cf. Seventh Annual Report of the President of the Special Court for Sierra Leone, June 2009 to May 2010, p. 32. 174 The average Sierra Leonean cannot afford to have a computer, library, gymnasium at his / her disposal and the accused benefit from such facilities while in detention. This is obviously a more general problem in applying the same standards to all accused in international criminal courts.

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to international humanitarian law in general and in particular to the international criminal justice system. However, it should be noted that the Special Court has been innovative in its jurisprudence and its approach to international criminal justice. This could be seen by its provision for an independent Defence Office which is entitled to practically the same advantages as the Prosecution Office.175 This marked a great depart from the practice of the ICTY and ICTR where the Defence was provided with considerably less resources than the Prosecution.176 The Special Court’s Defence Office, while officially part of the Registry, acts as an independent office in the interests of justice and is headed by the Special Court Principal Defender.177 As mentioned above, it was intended that this Office should become as fully independent as the Office of the Prosecutor – similar to how it functions at the ICC, where there is an Office for Public Council for the Defence, which falls within the remit of the Registry solely for administrative purposes but functions as a wholly independent office.178 The Defence Office’s mandate constituted of providing advice, assistance and representation to persons accused before the Court, as well as to suspects being questioned by the Special Court or its agents.179 Rule 45 provides in its relevant part that: “[T]he Defence Office shall fulfill its functions by providing, inter alia: (i) initial legal advice and assistance by duty counsel who shall be situated within a reasonable proximity to the Detention Facility and the seat of the Special Court and shall be available as far as practicable to attend the Detention Facility in the event of being summoned; (ii) legal assistance as ordered by the Special Court in accordance with Rule 61, if the accused does not have sufficient means to pay for it, as the interests of justice may so require; (iii) adequate facilities for counsel in the preparation of the defence.”180 175 Cf. SCSL Rules of Procedure and Evidence, Adopted on 16 January 2002, as amended on 7 March 2003, as amended on 1 August 2003, as amended on 30 October 2003, as amended on 14 March 2004, as amended on 29 May 2004, as amended 14 May 2005, as amended 13 May 2006, as amended 24 November 2006, as amended 14 May 2007, as amended 19 November 2007, as amended 27 May 2008, as amended 28 May 2010 [SCSL, Rules of Procedure and Evidence] Rule 45. 176 Cf. Kai Ambos, Internationales Strafrecht, supra note 22, § 6, mn. 16. 177 Cf. Rule 45, Special Court’s RPE. 178 Cf. William Schabas, The UN International Criminal Tribunals, The former Yugoslavia, Rwanda and Sierra Leone, supra note 163, pp. 615, 616. See Regulation 77 (2) of the Regulations of the International Criminal Court (ICC-BD / 01-02-07), adoption 14.06.2007 / entered into force 18.12.2007. Available at: http: //www.icc-cpi.int/Menus /ICC/Legal+Texts+and +Tools/Official+Journal/Regulations+of+the+Court.htm. See also Regulation 144(1) of the Regulations of the Registry of the International Criminal Court (ICC-BD / 03-01-06-Rev.1), adoption 25.09.2006 / entry into force 25.09.2006. Available at: http: //www.icc-cpi.int/Menus/ ICC/Legal+Texts+and+Tools/Official+Journal/Regulations+of+the+Registry.htm. Although the ICC Statute was drafted before the SCSL Statute, the application of this provision relating to an independent Defence Office was first experimented at the Special Court, due to the fact that the ICC Statute did not come into force until June 2002. 179 Cf. Rule 45(A), Special Court’s RPE. 180 Cf. Rule 45(B), Special Court’s RPE.

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As mentioned above this marked a clear depart from the practice at the ad hoc Tribunals where the Defence and all matters related thereto are dealt with within the Registry by the Office for Legal Aid and Detention Matters (OLAD).181 Although the Special Court was created after the Rome Statute and thus greatly inspired there from, it was the first international criminal court to have an independent Defence Office. This in itself is a great contribution and has been adopted by other international criminal courts that have been set up since then such as the Special Tribunal for Lebanon,182 the Extra Ordinary Chambers in the Courts of Cambodia,183 as well as the ICC that effectively took up its functions in July 2002.184 They have all been able to learn from the experiences of the Special Court and would hopefully build upon it. Further, the Defence Office was able to develop a Code of Conduct for counsel.185 It is worthy to note that the particularity of this Code of Conduct is that it is a unified code and is valid for both Prosecution and Defence Counsel, thereby being the first-of-its kind in the arena of international criminal tribunals.186

IV. Jurisdiction (Concurrent, Primary and Complementary) 1. General Remarks In order to better comprehend the jurisdiction of the Special Court, it is necessary at this stage to generally define the key terms that would be applied repeatedly below. In general terms, ‘jurisdiction’ refers to ‘the particular aspects of the general legal competence of states often referred to as sovereignty’.187 However, in the context of international tribunals in general and the Special Court in particular, jurisdic181 For more on the functioning of OLAD see Christian Rohde / Nikolaus Toufar, Der Internationale Strafgerichtshof für das ehemalige Jugoslawien als Internationale ad hoc Organisation – Stellung und Aufgaben der Gerichtskanzlei unter besonderer Berücksichtigung der Verteidigerschaft, in: Stefan Kirsch (ed.), Internationale Strafgerichtshöfe, Schriftreihe Deutsche Strafverteidiger e. V., Bd. 30, Nomos Verlagsgesellschaft, Baden-Baden, 2005, p. 99 et seq. 182 Cf. Articles 7, 13 of the Statute of the Special Tribunal for Lebanon, UN Doc. S / RES / 1757, 2007, available at http: //www.stl-tsl.org/x/file/TheRegistry/Library/Background Documents/Statutes/Resolution %201757-Agreement-Statue-EN.pdf. 183 http: // www.eccc.gov.kh / en / dss / defence-support-section-dss. 184 In accordance with Article 126(1), ICC Statute, the Rome Statute was to enter into force on the “first day of the month after the 60th day following the date of the deposit of the 60th instrument of ratification, acceptance, approval or accession with the Secretary-General of the United Nations”. 185 Second Annual Report of the President of the Special Court for Sierra Leone, Janauary 2004 – Janauary 2005, available at http: // www.sc-sl.org / DOCUMENTS / tabid / 176 / Default. aspx. 186 Ibid. 187 Cf. Ian Brownlie, Principles of Public International Law, 6th edn., OUP, Oxford, 2003, p. 297.

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Chart 4 Chart of the Office of the Registrar Office of the Registrar

Deputy Registrar

Defence Office

Court Management

Court Support

Stenography

Court Record Arching & Library

Translation Unit

Witness & Victims Support

New York Liaison Office

Chief of Administrative Services Press & Outreach

Security Budget and Finance

General Services Personnel

Facility Management

Transport Procurement Travel

Contracting Services

Clinic

Cits Source: Seventh Annual Report of the President of the Special Court for Sierra Leone.

tion should be understood as the legal competence of the international criminal tribunals. The Black’s Law Dictionary defines concurrent jurisdiction as “jurisdiction that might be exercised simultaneously by more than one court over the same subject matter and within the same territory, with the litigant having the right to choose the court in which to file the action”.188 It should be noted however, that in the domaine of international law, the procedure differs in that the victims and thus potential litigants cannot chose as such to bring their complaint before an international 188 Cf. Bryan A. Garner, Black’s Law Dictionary, 9th edn., West Group, St. Paul, Minnesota, 2009, p. 928.

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Tribunal. Particularly in the case of the ad hoc Tribunals and the so-called mixed Tribunals, there is no provision for victims to file applications before these institutions. With regard to the ICC, the situation is different in that the victims have the possibility to at least play a more determinant role in the proceedings albeit to a limited extent. In this respect, the ICC represents a landmark development in the international criminal law field in that it is the first time that victims play a determinant role other than just being witnesses. The ICC Statute makes provision for the victims to participate in the court proceedings as a party alongside the Prosecution and the Defence.189 Primary jurisdiction is defined as “jurisdiction to take cognizance of a case at the outset, to try it, and to decide the issues”.190 Primary jurisdiction is thus as a situation where a court is allowed the initial opportunity to decide an issue in a case in which it has concurrent jurisdiction with another court. Complementary is defined as combining in such a way as to form a complete whole or enhance each other.191 Complementary jurisdiction in international law relies on the principle of complementarity. This is “the doctrine that a country with control of a person accused of violating international criminal law has the jurisdiction to charge and try the person.192 With this background knowledge, it is worthy to note that the Special Court is the only international criminal court which is vested with concurrent, primary as well as complementary jurisdiction. The ad hoc Tribunals are vested with concurrent jurisdiction with primacy over national courts and can at any stage of the procedure, request national courts to defer to the competence of the international Tribunals.193 Pursuant to Article 8 of SCSL Statute, the Special Court has – similar to ICTY and ICTR – concurrent jurisdiction with the national Sierra Leonean courts (Article 8(1)). It should be borne in mind that this expression “concurrent” does not give the Special Court any exclusive right to judge the crimes for which it has jurisdiction, but merely means that the Special Court is one of the institutions with jurisdiction over the crimes committed during the conflict.194 189 Rule 89 of the ICC Rules of Procedure and Evidence, Doc. ICC-ASP / 1 / 3 (Part.II-A), entry into force 9 September 2002. See also Regulation 86 of the ICC, Regulations of the Court, as amended on 14 June and 14 November 2007, Doc. ICC-BD / 01-02-07, available at http: // www.icc-cpi.int/Menus / ICC / Legal+Texts+and+Tools/. 190 Cf. Bryan A. Garner, A Dictionary of Modern Legal Usage, 2nd edn., OUP, New York, Oxford, 1995, p. 626. 191 Cf. Judy Pearsall (ed.), The Concise Oxford Dictionary, 10th edn., OUP, Oxford, 1999, p. 292. 192 Cf. Bryan A. Garner, Black’s Law Dictionary, 9th edn., West Group, St. Paul, Minnesota, 2009, p. 324. 193 Cf. Articles 8 and 9 of the ICTR and ICTY Statutes respectively, and http: // www.icty.org / sid / 135. 194 Cf. Yann Kerbrat, Les Conflits Entre les Tribunaux Pénaux Hybrides et les Autres Jurisdictions Répressives (Nationales et Internationales), in: Hervé Ascensio / Elisabeth Lambert-

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The Special Court is structurally independent and completely distinct from Sierra Leone’s legal system and enjoys primacy vis-à-vis domestic courts.195 It could at any stage of the procedure formally request a national court to defer to its competence (Article 8(2) SCSL Statute). It was the first hybrid independent judicial institution with primacy over national courts. The primacy of the ad hoc Tribunals applies to all national courts, whereas that of the Special Court is limited to national courts of the Republic of Sierra Leone.196 The Special Court did make use of its primacy prerogative by requesting the transfer of the former RUF leader Foday Sankoh, who was being held by the local authorities.197 In accordance with the ne bis in idem clause, Article 9 of SCSL Statute provides that no person shall be tried before a national Sierra Leonean court for acts for which he or she has already been tried before the Special Court. However a person who has been tried before a national Sierra Leonean court could have under particular circumstances be tried again before the Special Court. This could be the case when the national court characterized the act for which he or she was tried as an ordinary crime or the national proceedings were not thorough and neutral or were sham trials in order to protect the person from international criminal responsibility. In turn, the ICC is only vested with complementary jurisdiction – as against the concurrent jurisdiction of the ad hoc tribunals – and would only exercise jurisdiction when the national courts are either unwilling or unable to genuinely prosecute.198 In relation to the ICC, Roy S. Lee states that “[complementarity] means that the Court will complement, but not supersede, national jurisdiction. National Courts will continue to have priority in investigating and prosecuting crimes committed within their jurisdictions, but the International Criminal Court will act when national courts are ‘unable or unwilling’ to perform their tasks”.199 The rationale beAbdelgawad / Jean-Marc Sorel (eds.), Les Jurisdictions Pénales Internationalisées (Cambodge, Kosovo, Sierra Leone, Timor Leste), Société de Législation Comparée, Paris, 2006, p. 195. 195 Cf. on this issue Article 11 (2) of the Special Court Agreement (2002) Ratification Act, which states that: “The Special Court shall not form part of the Judiciary of the Sierra Leone”. 196 Cf. Article 8(2), SCSL Statute. 197 Cf. Nancy Kaymar Stafford, A Model War Crimes Court: Sierra Leone, 10 ILSA J Int’l & Comp L. 1, p. 117. See Dinah L. Shelton. Gale Cengage (eds.), Genocide and Crimes Against Humanity, 2005, Sierra Leone, eNotes.com. 2006, 18 May, 2011 http: // www.enotes. com / genocide-encyclopedia / sierra-leone. 198 Cf. Preamble of the ICC Statute, para. 10. For more on complementarity, see Kai Ambos, The Colombian Peace Process and the Principle of Complementarity of the International Criminal Court, An Inductive, Situation-based Approach, Springer Verlag, Heidelberg, 2010, pp. 35 et seq.; Ignaz Stegmiller, Complementarity Thoughts, 21 CLF 1, 2010; id., The Pre-Investigation Stage of the ICC, Criteria for Situation Selection, supra note 157, pp. 284 et seq.; Florian Razesberger, The International Criminal Court – The Principle of Complementarity, Lang, Frankfurt / Main, 2006; Morel Sophie, La mise en oeuvre du principe de complémentarité par la cour pénale internationale le cas particulier des amnesties, Editions bis et ter, Lausanne, 2005; Mohamed El Zeidy, The Principle of Complementarity in international criminal law, Martinus Nijhoff Publishers, Leiden, Boston, 2008; Jan Kleffner, Complementarity in the Rome Statute and national criminal jurisdictions, OUP, Oxford, New York, 2008.

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hind the principle of complementarity is thus to give states the first opportunity to investigate or prosecute crimes which fall within their jurisdiction. Only when the State fails to investigate or prosecute or is unable or unwilling to do so, does the Court proceed to investigate or prosecute the criminal act(s) in question. In this light, it should be noted that the ‘unable or unwilling’ test is just ‘one-of’ the requirements that have to be meet in order for the ICC to exercise its jurisdiction.200 With regard to the complementarity jurisdiction of the Special Court, it is worth looking at Article 1 of the SCSL Statute, which lays out the legal framework of the jurisdiction of the Special Court. It states: “The Special Court shall, except as provided in subparagraph (2), have the power to prosecute persons who bear the greatest responsibility for serious violations of international humanitarian law and Sierra Leonean Law committed in the territory of Sierra Leone since 30 November 1996, including those leaders who, in committing such crimes, have threatened the establishment of and implementation of the peace process in Sierra Leone.”201

This choice of date, which is not reflective of the actual start of the conflict in Sierra Leone but of a Peace Agreement signed between the parties, implicitly grants a de facto amnesty for all the crimes that were committed prior to this date. An interesting aspect of Article 1 is its subparagraph (2) which is not only particular due to the fact that no other international criminal court has a similar provision, but also the fact that it limits the exercise of jurisdiction by the Special Court. Article 1(2) SCSL Statute provides that: “[a]ny transgressions by peacekeepers and related personnel present in Sierra Leone pursuant to the Status of Mission Agreement in force between the United Nations and the Government of Sierra Leone or agreements between Sierra Leone and other Governments or regional organizations, or, in the absence of such agreement, provided that the peacekeeping operations were undertaken with the consent of the Government of Sierra Leone, shall be within the primary jurisdiction of the sending State.”202

This subparagraph read in conjunction with subparagraph 3 – which states that when the sending state is unwilling or unable to genuinely carry out an investigation or prosecution, the Special Court may, upon approval by the Security Council on proposal from any State, exercise jurisdiction over such persons – vests the Special Court with complementarity jurisdiction, albeit limited to non-Sierra Leoneans. The complementarity principle is reiterated in the sixth paragraph of the Rome Statute, 199 Roy S. Lee, Introduction, in The International Criminal Court: The Making of the Rome Statute: Issues, Negotiations, Results, 2nd edn., Kluwer Law International, The Hague, 2002, p. 27 (emphasis added). 200 For more on this see A. Müller / Ignaz Stegmiller, Self Referrals on Trial: From Panacea to Patient, 8 JICJ 5, 2010, pp. 1267 – 1294: Daryl Robinson, The Mysterious Mysteriousness of Complementarity, 21 CLF 1, 2010, pp. 67 – 102. 201 Article 1, SCSL Statute. 202 Emphasis added.

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Articles 1 and 17. In paragraph 6 of the Preamble the Statute places a responsibility on states to exercise their criminal jurisdictions on those responsible for international crimes.203 The Rome Statute in general and the principle of complementarity in particular envisages an international criminal justice system where prosecutions by states are the rule rather than the exception.204 Thus the Special Court’s complementarity jurisdiction is similar to that exercised by the ICC albeit that in the case of the Special Court, the Security Council needs to authorize the exercise of this jurisdiction.205 However, the threshold in this form of complementarity before the Special Court is rather high since there are three criteria to be met: (1) the sending state must be unwilling or unable genuinely to carry out an investigation or prosecution; (2) there must be an authorization by the Security Council; and (3) the Security Council authorization must be based on the proposal of any State. a) Genuine Unwillingness or Inability of Sending State The requirement is a disjunctive and not conjunctive one thus the sending State must be either ‘genuinely’ unwilling or unable to carry out an investigation or prosecution. Unfortunately the drafters of the SCSL Statute failed to provide certain parameters to follow in determining unwillingness or inability of the sending State to investigate or prosecute members of its armed forces. The question here is who is to decide whether the sending State is unwilling or unable. If this responsibility lies on the sending State then this could be regarded as a form of immunity for members of the forces of the sending State since they are – at least as per the SCSL Statute – under no obligation to actually investigate and / or prosecute the members of their armed forces. In the case of the ICC, its Statute provides certain parameters which the Court shall consider – having regard to the principles of due process recognized by international law – in determining unwillingness in a particular case such as: “(a) [t]he proceedings were or are being undertaken or the national decision was made for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the [ICC] referred to in article 5; (b) [t]here has been an unjustified delay in the proceedings which in the circumstances is inconsistent with an intent to bring the person concerned to justice; and (c) [t]he proceedings were not or are not being conducted independently or impartially, and they were or are being conducted in a manner which, in the circumstances, is inconsistent with an intent to bring the person concerned to justice.”206 Paragraph 6, ICC Statute Preamble. G. Werle and F. Jessberger, International Criminal Justice is Coming Home: The New German Code of Crimes Against International Law, 13 CLF 2, 2002, pp. 191 – 223. 205 Cf. Article 17(1)(a) ICC Statute. For more on the complementarity regime at the ICC, see Ignaz Stegmiller, The Pre-Investigation Stage of the ICC, Criteria for Situation Selection, supra note 157, pp. 284 et seq. 206 Cf. Article 17(2) ICC Statute. 203 204

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Further, in determining inability the ICC shall consider whether the national judicial system has totally or substantially collapsed thereby rendering the State unable to obtain the accused or the necessary evidence and testimony or otherwise unable to carry out its proceedings.207 The ICC Appeals Chamber recently held that: “[T]herefore, in considering whether a case is inadmissible under article 17 (1) (a) and (b) of the Statute, the initial questions to ask are (1) whether there are ongoing investigations or prosecutions, or (2) whether there have been investigations in the past, and the State having jurisdiction has decided not to prosecute the person concerned. It is only when the answers to these questions are in the affirmative that one has to look to the second halves of sub-paragraphs (a) and (b) and to examine the question of unwillingness and inability. To do otherwise would be to put the cart before the horse. It follows that in case of inaction, the question of unwillingness or inability does not arise; inaction on the part of a State having jurisdiction (that is, the fact that a State is not investigating or prosecuting, or has not done so) renders a case admissible before the Court, subject to article 17 (1) (d) of the Statute.”208

It should be noted that some scholars suggest an interpretation whereby unwillingness and inability are merged to form one requirement.209 Further, there is also a lack of consensus as to whether the criteria are to be understood objectively, subjectively or both. In this regard, while Ambos acknowledges that “the term ‘genuinely’ […] requires – rather subjectively – good faith and seriousness on the part of the respective state with regard to investigation and prosecution”, he is of the view that the unwillingness / inability test was meant to be understood objectively.210 Although an in-depth discussion on the interpretation of the unwillingness / inability criteria by the ICC would have been interesting at this stage, it however goes beyond the scope of this research. Turning back to the Special Court, if the power to determine the unwillingness or inability of the sending State lay in the hands of the Special Court, then Article 1(2) would not really be entirely considered as excluding the latter from exercising its jurisdiction on members of the peacekeeping force and related personnel in Sierra Leone. However, even after the determination of the unwillingness or inability of the sending State to carry out investigations or prosecutions, there is the need for the Special Court to obtain authorization from the Security Council. Cf. Article 17(3) ICC Statute. ICC, Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, Case No. ICC-01 / 04-01 / 07 OA8, Judgment on the Appeal of Mr. Germain Katanga against the Oral Decision of Trial Chamber II of 12 June 2009 on the Admissibility of the Case, 25 September 2009, para. 78. 209 Cf. Jan Kleffner, Complementarity in the Rome Statute and national criminal jurisdictions, OUP, Oxford, New York, 2008, pp. 161, 342. 210 Cf. Kai Ambos, The Colombian Peace Process and the Principle of Complementarity of the International Criminal Court, An Inductive, Situation-based Approach, supra note 198, p. 64 See also John T. Holmes, The Principle of Complementarity, in: Roy S. Lee (ed.) The International Criminal Court: The Making of the Rome Statute. Issues, Negotiations, Results, supra note 199, p. 50; id., Complementarity: national Courts versus the ICC, in: Cassese / Gaeta / Jones (eds.), The Rome Statute of the ICC: a commentary, Vol. I, OUP, Oxford, 2002, p. 674. 207 208

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b) Security Council Authorization In the case where the unwillingness or inability of the sending State has been established, there is still the need to obtain authorization from the Security Council. Such an authorization from the Security Council would have to be given pursuant Article 27(3) of the UN Charter, which requires that decisions of the Security Council on all other matters shall be made by an affirmative vote of nine members including the concurring votes of the permanent members.211 The Security Council would thereby be exercising its functions of promoting the establishment and maintenance of international peace and security.212

c) Security Council Authorization based on any State Proposal The Security Council in order to grant the Special Court authorization to exercise jurisdiction over peacekeepers and related personnel – provided the sending State is found to be unwilling or unable – needs to be seized of the matter by any State. This could be seen as the trigger mechanism and is at least prima facie the least difficult criteria to meet. This is so because the wording ‘any State’ implies that the state need not have been involved in the conflict in Sierra Leone. Article 1 thus reflects a restrictive approach with regard to the Special Court’s exercise of jurisdiction over peacekeepers and related personnel and further prevents the Special Court from communicating directly with the Security Council regarding a sending State’s unwillingness or inability to investigate and prosecute. As seen above (Chapter 1[c]), the conflict in Sierra Leone did not only involve local groups but included non-Sierra Leonean warring factions. It is regrettable that there have been no proceedings at the international level, in particular at the level of the sending States especially since there are reports of prima facie evidence that the peacekeepers and related personnel did commit ‘transgressions while on Sierra Leonean territory.213 More so, there are reports that ECOMOG troops that were dispatched to aid the democratically elected government and suppress the rebellion, committed acts of wanton violence against civilians whom they suspected of supporting the RUF.214 Cf. UN Charter, 1945, reproduced in 59 Am. J. Int’l L. (1965), pp. 985 et seq. Cf. Article 26, UN Charter. 213 Cf. Marco Sassoli and Antoine A. Bouvier in co-operation with Susan Carr, Lindsey Cameron and Thomas de Saint Maurice, in How Does Law Protect in War?, Cases, Documents and Teaching Materials on Contemporary Practice in International Humanitarian Law, Vol. II, 2nd edn., ICRC, Geneva 2006, pp. 2377 – 2378. See also Human Rights Watch Report, Sierra Leone – Getting Away with Murder, Mutilation, Rape, 1999, Vol. 11, No. 3(A), http: // www.hrw.org / reports / 1999sierra. 214 Ibid., see also Human Rights Watch Report, Sowing Terror: Atrocities Against Civilians in Sierra Leone, July 1998, Vol. 10, No. 3 (A), p. 5, available at http: // www.hrw.org / reports / 1998 / 07 / 29 / sowing-terror. 211

212

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There have however been no proceedings against these individuals in their respective sending states. A direct consequence of Article 1(2) is that any crimes committed by peacekeepers and related personnel would go unpunished thereby de facto supporting impunity. Furthermore, with all trials concluded both at the trial and appeals level, except for the Charles Taylor trial which is still ongoing, this article has left a vacuum in the legacy of the Special Court, which is the only international court thus far to have such a provision to exercise jurisdiction only for a particular group of individuals (peacekeepers and related personnel). Moreover, the whole concept of complementarity being new in international criminal law, its application by the Special Court would have been a great contribution to the development of international humanitarian law. Further, Meisenberg is skeptical as to how ‘transgressions’ could be reconciled with the elements of the crimes enlisted in Articles 3 and 4 SCSL Statute relating to ‘Violations of Article 3 common to the Geneva Conventions and AP II’ and ‘Other serious violations of international humanitarian law’ respectively.215 He advances two potential justifications for the incorporation of ‘transgressions’ in the substantive law of the Special Court. It is either clear that transgression could only fall under Article 2 dealing with crimes against humanity which do not need to be of a particularly grievous nature in order to be prosecuted or the status of the peacekeepers makes it such that although transgression does not amount to grievous crime, the role of peacekeepers and the respect they enjoy, amount to aggravating circumstances. Above all, he criticizes the fact that the potential crimes committed by peacekeepers is being described as ‘transgressions’, thereby applying double standards for the same crimes.216 Be that as it may, the practice towards peacekeepers has been that of impunity, and the criteria set out in Article 1 (2) and (3) rather set a higher threshold to be met before peacekeepers and related personnel could be held accountable for their actions. A further analysis of the jurisdiction of the Special Court requires a four facet approach, namely substantive jurisdiction, personal jurisdiction, territorial jurisdiction and temporal jurisdiction.

2. Substantive Jurisdiction (rationae materiae) Articles 2 to 5 SCSL Statute empower the Special Court to prosecute persons who have committed crimes against humanity [a)]; violations of Article 3 common to the Geneva Conventions and AP II [b)]; other violations of international humani215 216

Simon Meisenberg, supra note 37, p. 178. Conversation with Simon Meisenberg, The Hague, 26 May 2011.

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tarian law [c)]; and crimes under Sierra Leonean law [d)]. It should be noted that the crime of genocide is – unlike the ICTY and ICTR – not included in the jurisdiction of the Special Court. The explanation for this is that there was no evidence that mass killings were carried out on the basis of an identifiable national, ethnic, racial or religious group with the intent to destroy the group in whole or in part.217 The UN Secretary-General in his report on the establishment of the Special Court pointed out that genocide was not included in the substantive law of the Special Court because “of the lack of evidence that the massive, large-scale killing in Sierra Leone was at any time perpetrated against an identified national, ethnic, racial or religious group with an intent to annihilate the group as such”.218

a) Crimes against Humanity The concept of crimes against humanity has – unlike other international crimes such as war crimes and genocide – not yet been the subject of an international convention.219 However, there is an ongoing project under the auspicies of the Washington University School of Law, Whitney Harris World Law Institute known as the ‘Crimes Against Humanity Initiative’.220 Although still in the draft phase, the definition of crimes against humanity contained in the draft convention reflects the positive development of crimes against humanity thus far. Article 3 of the draft Convention states that: “For the purpose of the present Convention, ‘crimes against humanity’ means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: (a) Murder; (b) Extermination; (c) Enslavement; (d) Deportation or forcible transfer of population; (e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; (f) Torture; (g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; (h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are uni-

See supra (chapter 2 IV.4) for the parties involved in the conflict in Sierra Leone. Cf. Report of the Secretary-General, 4 October 2000, supra note 15, para. 13. 219 Cf. Margaret M. deGuzman, Crimes Against Humanity, in: Schabas et al. (eds.), Handbook of International Criminal Law, Routledge, London, 2010. 220 For more on this project see Leila Nadya Sadat (ed.), Forging a Convention for Crimes Against Humanity, Cambridge University Press, Cambridge, March 2011. 217 218

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Chapter 3: Objective, Establishment, Jurisdiction and Organization versally recognized as impermissible under international law, in connection with any act referred to in this paragraph or in connection with acts of genocide or war crimes; (i) Enforced disappearance of persons; (j) The crime of apartheid; (k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.”221

However, the definition of crimes against humanity as applied by the Special Court is less extensive. For example crimes such as enforced disappearance of persons, apartheid and enforced sterilization are not covered by the SCSL Statute. Further, SCSL Statute ‘only’ criminalises the crime of persecution on ‘political, racial, ethnic or religious’grounds.222 This rather restrictive approach could be justified by the nature of the conflict in Sierra Leone where there were no known cases of apartheid nor was the conflict based on any nationalistic ideologies. For a detailed analysis of the Special Court’s approach to crimes against humanity see Chapter Four below.

b) Violations of Article 3 Common to the Geneva Conventions and of AP II Common Article 3 applies to “[p]ersons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause”.223 In the same light, AP II considers non-combatants to be “all persons who do not take a direct part or who have ceased to take part in hostilities”.224 In this regard, it should be noted that AP II was groundbreaking in the development of international humanitarian law in that it was the first treaty that expressly laid down rules and obligations applicable to both states and non-state armed groups involved in an internal armed conflict.225 The violations covered by this provision include: “(a). Violence to life, health and physical or mental well-being of persons, in particular murder as well as cruel treatment such as torture, mutilation or any form of corporal punishment; 221 Cf. Article 3, Proposed International Convention on the Prevention and Punishment of Crimes Against Humanity, available at http: //law.wustl.edu/harris/cah/docs/EnglishTreaty Final.pdf. The author uses this draft since the participants of the project are leading scholars and practitioners and in the international law arena and take into account the current standpoint of international law, including the ICC Statute. 222 Cf. Article 2, SCSL Statute. 223 Cf. Article 3(1), Geneva Conventions of 1949, supra note 35. 224 ICTR, The Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Judgment, 2 September 1998, para. 629. 225 Cf. ICRC, ‘International Humanitarian Law and the Challenges of Contemporary Armed Conflicts’, Geneva, September 2003, p. 14.

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(b). Collective punishments; (c). Taking of hostages; (d). Acts of terrorism; (e). Outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault; (f). Pillage; (g). The passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples; (h). Threats to commit any of the foregoing acts.”226

Violations of Common Article 3and AP II would be treated in further detail below in Chapter Five dealing with the Special Court’s jurisprudence on war crimes.

c) Other Serious Violations of International Humanitarian Law In order for a crime to fall under this rubrique, which is dealt with under Article 4 SCSL Statute, it must be viewed as a “serious” violation of international humanitarian law.227 The wording of Article 4 SCSL Statute is the same as that of Article 8 ICC Statute. Count 12 of the RUF Indictment charges the Accused with the offence of conscripting or enlisting children under the age of 15 years into armed forces or groups, or using them to participate actively in hostilities as an “other serious violation of international humanitarian law” pursuant to Article 4(c) of the Statute.228 The RUF Trial Chamber in stating that the crimes listed under Article 4 SCSL Statute amounted to “serious violations of international humanitarian law by definition” noted that “[c]rimes against humanity and violations of Common Article 3 to the Geneva Conventions and of Article 4(2) of Additional Protocol II (‘war crimes’) have all been held to be serious violations of international humanitarian law during a period prior to the temporal jurisdiction of [the Special Court]”.229

Article 3, SCSL Statute. SCSL, Sesay, Kallon, Gbao Trial Judgment, para. 70. 228 SCSL, The Prosecutor v. Issa Sesay, Morris Kallon, Augustine Gbao, Case No. SCSL2004-15-PT, Amended Indictment, 2 August 2006, para. 68. 229 SCSL, Sesay, Kallon, Gbao Trial Judgment, para. 71, with original footnotes [Regarding Crimes against Humanity, see ICTY, The Prosecutor v. Tadić, Case No. IT-94-I-T, Opinion and Judgment, 7 May 1997 (hereinafter ‘Tadić Trial Judgment’), paras. 622 – 623 (referring therein to ICTY, Tadić Appeal Decision on Jurisdiction, para. 141); regarding Crimes under Common Article 3 to the Geneva Conventions, see ICTY, The Prosecutor v. Blaškić, Case No. IT-95-14-T, Judgment, 3 March 2000 (hereinafter ‘Blaškić Trial Judgment’), para. 176. The ICTR Trial Chambers have made it clear that violations of Article 4(2) of AP II are, by their very nature, violations of fundamental humanitarian guarantees and are thus serious: ICTR, Akayesu Trial Judgment, 2 September 1998, para. 616; ICTR, The Prosecutor v. Se226 227

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One of the important contributions of the Special Court under this rubrique has been its jurisprudence on the recruitment and enlisting of child soldiers.230 Generally, the RUF Trial Chamber held that: “for the actual violation to be serious, it must constitute a breach of a rule protecting important values, and the breach must involve grave consequences for the victim”. The jurisprudence of the Special Court on the crime of conscription, enlistment and use of children aged less than 15 to participate actively in hostilities, would certainly serve as guidance to the ICC in dealing with the same crime.231 This is so because this jurisprudence focuses on whether or not this crime amounted to a crime under customary international law by 1996, thereby covering a period prior to the creation of the ICC. Further, it focuses on the definition of the crime and endorses the material elements of the crime as listed in the ICC Elements of Crimes. See infra (Chapter seven) for further discussion on this issue. d) Crimes under Sierra Leonean Law Admittedly certain facts fell under more than one crime i.e. they could be characterized as a crime against humanity, a war crime and a crime under Sierra Leonean Law. Illustratively, the rape of a 10 year old could be prosecuted as a crime against humanity where committed as part of a widespread or systematic attack; as a war crime when committed during an armed conflict; and as a crime under Sierra Leonean law (violation of section 6 of the Prevention of Cruelty to Children Act, 1926). However this does not justify this missed opportunity by the Prosecution’s office to prosecute some offences under Sierra Leonean law, more so when other crimes punishable under Sierra Leonean law were not covered by international humanitarian law, e.g. the crime of burning of public buildings (violation of sections 5 and 6 of the Malicious Damage Act, 1861). See infra (Chapter Seven) for further discussion on this issue. 3. Personal Jurisdiction (rationae personae) It has been argued that the voluntary funding of the Special Court activities also had a direct influence on the UN Security Council position vis-à-vis those who manza, Case No. ICTR-97-20-T, Judgment and Sentence, 15 May 2003 (hereinafter ‘Semanza Trial Judgment and Sentence’), paras. 370 – 371; ICTR, The Prosecutor v. Kayishema and Ruzindana, Case No. ICTR-95-1-T, Judgment, 21 May 1999 (hereinafter ‘Kayishema and Ruzindana Trial Judgment’), para. 184; The Prosecutor v. Rutaganda, Case No. ICTR-96-3-T, Judgment and Sentence, 6 December 1999 (hereinafter ‘Rutaganda Trial Judgment and Sentence’), para. 106. 230 See Chapter 8 on Legacy below for a detailed analysis of the recruitment of children under the age of 15 and their use to participate actively in hostilities. 231 In the case of The Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01 / 04-01 / 06, the Accused is charged with the circonscription of child soldiers (Decision on Confirmation of Charges, 29 January 2007, paras. 9 et seq.).

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were supposed to be tried by the Court.232 The Special Court’s jurisdiction rationae personae differed from that of the ad hoc Tribunals in that while the Special Court had competence to prosecute only “those who bear the greatest responsibility” for serious violations of international humanitarian law, the ad hoc Tribunals were given competence to prosecute “persons responsible” for serious violations of international humanitarian law. However, the UN Security Council recently in its Resolution 1534 demanded that the ad hoc Tribunals focus their attention on “the most senior leaders suspected of being most responsible for crimes” that fall under the jurisdiction of the Tribunals.233 Thus the need to clarify whether the wording as used in the SCSL Statute amounted to a jurisdictional requirement or was merely an articulation of prosecutorial discretion. The wording “those who bear the greatest responsibility” could be interpreted in at least two ways; one being as implying only the leaders of the warring groups. This interpretation however leaves open the question – as was also argued by some accused in the Special Court – why a person like Moinina Fofana, who was not really the leader of the CDF, was indicted.234 Another interpretation is that the greatest responsibility wording implied those who are responsible for the majority of crimes committed during the conflict. Likewise, this interpretation leaves open the question why someone in the likes of Mohamed Savage (alias Changabulanga), a former sub-commander of the AFRC, who, at the time of the establishment of the Special Court was already in detention in Freetown, was not indicted. Although the Prosecution did not consider him to be one of “those who bear the greatest responsibility”, this was not the view of the locals, to whom he was notorious for the crimes he committed.235 However, adopting the latter approach, i.e. an interpretation based on those who are responsible for the majority of crimes committed during the 232 Cf. José Doria, The Work of the Special Court for Sierra Leone through its Jurisprudence, in: José Doria / Hans-Peter Gasser / Cherif Bassiouni (eds.), The Legal Regime of the International Criminal Court, Essays in Honour of Professor Igor Blishchenko, Martinus Publishers, Leiden, Boston 2009, p. 246. 233 UNSC Res. 1534 (2004), UN Doc. S / RES / 1534, adopted by the Security Council at its 4935th meeting, on 26 March 2004. See also Dominic Raab, Evaluating the ICTY and Its Completion Strategy, 3 JICJ 1, 2005, pp. 82 – 102; Darryl A. Mundis, The Judicial Effects of the “Completion Strategies” on the ad hoc International Criminal Tribunals, 99 Am. J. Int’l L. 1, 2005, pp. 142 – 157; Larry D. Johnson, Closing an International Criminal Tribunal While Maintaining International Human Rights Standards and Excluding Impunity, 99 Am. J. Int’l L. 1, 2005, pp. 158 – 174. 234 See the arguments raised by the accused in The Prosecutor v. Moinina Fofana, Case No. SCSL 2004-14-PT, Decision on the Preliminary Defense Motion on the Lack of Personal Jurisdiction filed on behalf of the Accused Fofana, 3 March 2004 (‘Moinina Fofana Decision on Lack of Personal Jurisdiction’), para. 2. 235 SCSL, The Prosecutor v. Alex Tamba Brima, Ibrahim Bazzy Kamara, Santigie Borbor Kanu, Case No. SCSL-04-16-A, Judgment, 22 February 2008 (hereinafter ‘Brima, Kamara, Kanu Trial Judgment’), para. 259. See also International Center for Transitional Justice, ‘From The Taylor Trial to a Lasting Legacy: Putting the Special Court Model to the Test’, supra note 47, pp. 19 et seq.

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conflict, would require a quantitative assessment of responsibility and would be contrary to current practice in international criminal law.236 However, the then UN Secretary-General Annan pointed out that the words “those who bear the greatest responsibility” were merely to guide the Prosecutor in adopting his prosecutorial strategy. This was the same approach taken by the Prosecutor who supported his position with the argument that it was impossible at the pre-trial phase of proceedings to already know the scope of the criminal liability of any potential accused.237 Hence, it is clear that the Special Court and the ICC both adopt the same approach with regard to prosecuting those who bear the greatest responsibility, i.e. interpreting it as guidance to the Prosecutor in adopting his prosecutorial strategy.238 As regards the ICC, it should be noted that the term ‘those who bear the greatest responsibility’ is inexistent in the ICC Statute. However, the Office of the Prosecutor in its 2003 Policy Paper pointed out that the Preamble, Article 5 and Article 17 ICC Statute provide some guidance in this regard.239 It stated that: “[T]he global character of the ICC, its statutory provisions and logistical constraints support a preliminary recommendation that, as a general rule, the Office of the Prosecutor should focus its investigative and prosecutorial efforts and resources on those who bear the greatest responsi-bility, such as the leaders of the State or organisation allegedly responsible for those crimes.”240

It further clarified that “[d]etermining which individuals bear the greatest responsibility for these crimes is done according to, and dependent on, the evidence that emerges in the course of an investigation”.241 Further, it should be noted that Arti236 There is a growing tendency as can be seen in the work of the ICC to consider the gravity of the particular crime as a fundamental criterion rather than the number of crimes. For more on the discussion on gravity, see Mohamed M. El. Zeidy, The Gravity Threshold under the Statute of the International Criminal Court 19 CLF 1, 2008), p. 35. 237 SCSL, Moinina Fofana Decision on Lack of Personal Jurisdiction, paras. 4 – 9. 238 Article 1 of the ICC Statute states that: “An International Criminal Court (‘the Court’) is hereby established. It shall be a permanent institution and shall have the power to exercise its jurisdiction over persons for the most serious crimes of international concern, as referred to in this Statute, and shall be complementary to national criminal jurisdictions.” Article 1 of the SCSL Statute states that: The Special Court shall, except as provided in subparagraph (2), have the power to prosecute persons who bear the greatest responsibility for serious violations of international humanitarian law and Sierra Leonean law committed in the territory of Sierra Leone since 30 November 1996, including those leaders who, in committing such crimes, have threatened the establishment of and implementation of the peace process in Sierra Leone. See also ICC, Situation in the Democratic Republic of the Congo, Case No. ICC-01 / 04-169, Judgement on the Prosecutor’s Appeal Against the Decision of Pre-Trial Chamber I Entitled ‘Decision on the Prosecutor’s Application for Warrants of Arrest, Article 58’, 13 July 2006, para. 73 et seq. 239 ICC, The Office of the Prosecutor, Paper on Some Policy Issues before the Office of the Prosecutor, September 2003 (“2003 Policy Paper”), pp. 6 – 7. 240 Id.

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cle 53(1)(a) – (c) of the Statute establishes the legal framework for a preliminary examination. “It provides that, in order to determine whether there is a reasonable basis to proceed with an investigation into the situation the Prosecutor shall consider: jurisdiction (temporal, material, and either territorial or personal jurisdiction); admissibility (complementarity and gravity); and the interests of justice”.242 With regard to the Special Court, the Trial Chamber in the Prosecutor v. Moinina Fofana et al. case, after reviewing the travaux preparatoires, initially concluded that the intention of the drafters of the SCSL Statute was to limit the personal jurisdiction. The Trial Chamber held that the UN Security Council in choosing this wording decided that the primary consideration should be the fact that a person held a leadership position and not the severity of a crime or massive scale of a particular crime.243 The Trial Chamber further stated that “the issue of personal jurisdiction is a jurisdictional requirement and while it does of course guide the prosecutorial strategy, it does not exclusively articulate prosecutorial discretion”.244 The Trial Chamber Judgment in the Prosecutor v. Moinina Fofana et al. case added that “as this is a jurisdictional matter only, the issue of whether or not the Accused in fact bear the greatest responsibility is not a material element that needs to be proved beyond doubt.”245 However, the Appeals Chamber clarified this finding and held that the wording “those who bear the greatest responsibility” is a guide and not a jurisdictional requirement for the international criminal justice system could not afford to acquit individuals on the basis of relative culpability as the accused Kanu seemed to suggest. The Appeals Chamber stated that: “[T]he only workable interpretation of Article 1(1) is that it guides the Prosecutor in his exercise of prosecutorial discretion. That discretion must be exercised by the Prosecution in good faith on the basis of sound professional judgment […] it would also be unreasonable and unworkable to suggest that the discretion is one that should be exercised by the Trial Chamber or Appeals Chamber at the end of the trial […]. [I]t is inconceivable that after a long and expensive trial the Trial Chamber could conclude that although the commission of serious crimes has been established beyond reasonable doubt against the accused, the in241 Cf. The Office of the Prosecutor, Report on Prosecutorial Strategy, 14 September 2006, p. 5, available at http: // www.icc-cpi.int / menus / icc / structure%20of %20the %20court / office %20of %20the %20prosecutor / reports %20and %20statements / statement / report %20on % 20 prosecutorial%20strategy. 242 Cf. Art. 53(1) ICC Statute. See also Policy Paper on Preliminary Examinations, Draft, 4 October 2010. The Office of the Prosecutor in its Draft Policy Paper on Selection Criteria stated that factors relevant in assessing gravity include: the scale of the crimes; the nature of the crimes; the manner of commission of the crimes; and the impact of the crimes. For more on the interpretation at the ICC of the wording ‘those who bear the greatest responsibility’ see Ignaz Stegmiller, The Pre-Investigation Stage of the ICC, Criteria for Situation Selection, supra note 157, pp. 428 et seq. 243 SCSL, Moinina Fofana Decision on Lack of Personal Jurisdiction, para. 40. 244 SCSL, Moinina Fofana Decision on Lack of Personal Jurisdiction, para. 27. 245 SCSL, The Prosecutor v. Moinina Fofana and Kondewa, Case No. SCSL 2004-14-T, Judgment, 2 August 2007 (hereinafter ‘Fofana and Kondewa Trial Judgment’), para. 92.

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While this interpretation by the Appeals Chamber of the Special Court can be fully adhered to and is in the author’s view the right interpretation, its concerns seem to be misplaced. By stating that “[i]t is inconceivable that after a ‘long’ and ‘expensive’ trial it would be wrong to reach a conclusion other than that the wording “those who bear the greatest responsibility” is not a prosecutorial guide, the Special Court Appeals Chamber is guided by the wrong motives. The monetary implications seem to be the driving force behind this finding and not any legal reasoning. This is regrettable for in as much as international criminal courts ought to be conscious of their surroundings and of the implications of their actions, the decisions taken by them ought to be based on legal reasoning and not on a pragmatic approach. That notwithstanding, it should be noted that the practice at the ICC is consistent with this interpretation of the Special Court Appeals Chamber. At this point, it is necessary to point out that the ICC practice concurs with the Special Court’s interpretation and not the latter’s motives. The ICC’s Office of the Prosecutor’s (OTP) practice has been to consider the leadership role as one among many factors taken into account in assessing the admissibility of a situation. The Prosecutor of the ICC in addressing the UN Security Council pursuant to Resolution 1593 on the progress of the situation in Darfur, concluded that in satisfying Article 53(1) (b) of the ICC Statute which requires examination of the question of admissibility, “the nature of the alleged crimes, as well as information relating to those who may bear the greatest responsibility for such crimes are taken into account”.247 Other factors such as the scale of the crimes as well as the impact of the ICC investigations and prosecutions in the prevention of further crimes are also taken into consideration.248 Thus Special Court approach concurs with that of the ICC in that the wording “those who bear the greatest responsibility” is interpreted at the Special Court as a guide and not a jurisdictional requirement and the ICC interprets it as an articulation of prosecutorial discretion. While it remains to be seen if any accused before the ICC raises a similar defence argument, thereby permitting the Judges of the ICC to take a stance on the issue – unless they elect to address the issue proprio motu – the Special Court interpretation however contributes to the development of international criminal law for it provides us with an example of what impact such an interpretation could have on proceedings at the international level. 246 SCSL, The Prosecutor vs. Alex Tamba Brima, Ibrahim Bazzy Kamara and Santigie Borbor Kanu, Case No. SCSL-2004-16-A, 22 February 2008, paras. 282 – 283. (Emphasis added). 247 First Report of the Prosecutor of the International Criminal Court, Mr. Luis Moreno Ocampo, To the Security Council Pursuant to UNSC Res. 1593(2005), 29 June 2005, p. 3. 248 Statement of the Prosecutor of the International Criminal Court, Mr. Luis Moreno Ocampo to the UN Security Council Pursuant to UNSC Res. 1593(2005), 14 June 2006, p. 2.

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However, bearing in mind the Special Court’s Prosecution’s interpretation of the wording “those who bear the greatest responsibility” – as discussed above – it is questionable whether some of those convicted by the Special Court were not wrongly prosecuted. In certain cases it looks like it was a compromise that was sought. For example, the prosecution of Sam Hinga Norman appeared to have been the product of an arrangement between the Special Court Prosecution and the then President Kabbah. The problematic with this rather high threshold is that those who do not meet this threshold but however committed crimes remain unpunished. In order to ensure that those who violated international humanitarian law but however did not meet the “greatest responsibility threshold” do not enjoy a de facto impunity, the Special Court ought to have explored alternative means to solve this problem. Such alternative means could have been by either expressly and openly encouraging / facilitating national prosecutions, assisting in rebuilding the national justice system by training judges, lawyers, court officers etc. and by providing other forms of international assistance. Be that as it may, another problem with the limitation of the mandate to “persons who bear the greatest responsibility” as per Article 1 SCSL Statute is that this de facto rendered Article 7 dealing with the jurisdiction of the Special Court over persons of 15 years of age inapplicable. The Special Court having been empowered to prosecute persons of 15 years of age was provided with certain guarantees such as the composition of a chamber with juvenile justice experience and the appointment of prosecutors with experience in prosecuting children.249 Further, it was envisaged that the children would have to be treated with dignity and respect with the goal of facilitating their rehabilitation, reintegration into and assumption of a constructive role in society.250 There was also not supposed to be any imprisonment but rather measures that facilitated reintegration into society such as community service orders, counseling, foster care, correctional, educational and vocational training programmes, approved schools and, as appropriate, any programmes of disarmament, demobilization and reintegration or programmes of child protection agencies. However, the Prosecutor announced in 2003 that he would not be prosecuting any children, thereby missing the chance to develop this part of international criminal law.251 Having said that, it is still clear that the mandate as set out to prosecute “persons who bear the greatest responsibility” was incompatible with Article 7 relating to jurisdiction over persons aged 15 since the child soldiers were those who received orders and executed them, thereby not being high enough in the command structure Cf. Articles 13 (2) and 15 (4) SCSL Statute. Cf Article 7 (1) SCSL Statute. 251 Cf. Anne-Marie La Rosa, La Contribution des Tribunaux Internationalisés au Droit Commun du Procès Pénal International: Le Cas du Tribunal Spécial pour la Sierra Leone, in: Hervé Ascensio / Elisabeth Lambert-Abdelgawad / Jean-Marc Sorel (eds.), Les Jurisdictions Pénales Internationalisées, supra note 194, p. 185. 249 250

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to fall under the terminology “persons who bear the greatest responsibility”. The empowering of the Special Court to have jurisdiction over persons 15 years of age, is likely nothing more than a reflection of the overzealous nature of some of the drafters of the SCSL Statute This however, did not make their acts during the conflict less grievous. Bearing in mind that the other international criminal courts do not have jurisdiction over persons 15 years of age but rather as from 18,252 it is regrettable that the Special Court missed on this opportunity to develop juvenile international humanitarian law. This jurisprudence would have been applicable mutatis mutandis before the other international criminal courts. 4. Temporal Jurisdiction (rationae temporis) The SCSL Statute granted the Special Court jurisdiction for crimes “committed in the territory of Sierra Leone since 30 November 1996”.253 By setting the starting date of 30 November 1996 although the conflict actually begun as early as 1991, the Special Court was perceived by many locals as lacking actual knowledge and understanding on the nature of the conflict. The official reason put forward by those responsible at the time was that the decision was based on administrative and financial considerations.254 The Secretary-General justified the 30 November 1996, the date of the unsuccessful peace agreement signed in Abidjan, as the better solution to avoid the Special Court having to deal with a heavy burden.255 Schabas suggest that the real explanation could be the discomfort of the Secretary-General’s own lawyers who did not object to the amnesty provisions included in the Abidjan Agreement.256 However what ever the real motives are, the effect is that of recognizing a de facto amnesty for all the crimes committed between 1991 and 1996. Despite protests from the civilian population and a request from the Sierra Leone government to extend the mandate of the Special Court to

252 Cf. Article 26 of the ICC Statute which states that the “[t]he Court shall have no jurisdiction over any person who was under the age of 18 at the time of the alleged commission of a crime”. 253 Cf. Article 1, SCSL Statute. 254 David Crane in a conversation with the author during a conference organized by ISISC in Siracussa, Italy, 2007 justified the reason as being purely objective in nature and not based (as perceived by some Sierra Leonean nationals) on the local divisions between those who live in Freetown on one side and the rest of Sierra Leone on the other side. 255 Cf. Report of the Secretary-General, 4 October 2000, supra note 15, paras. 26 – 27. This Report further states that three different dates were considered – 30 November 1996 (the date of the failed Abidjan Peace Accords); 25 May 1997 (the date when the AFRC launched its coup d’etat against the democratically elected government of Kabbah) and 6 January 1999 (the date when the AFRC and RUF launched their infamous attack on Freetown) – in a bid to constrict the heavy burden of the Prosecution in particular and the Court in general. 256 Cf. William Schabas, The UN International Criminal Tribunals, The former Yugoslavia, Rwanda and Sierra Leone, supra note 163, p. 135.

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cover the whole period of the conflict, the UN refused to depart from the date of 30 November 1996.257 5. Territorial Jurisdiction In accordance with Article 1(1) SCSL Statute, the Special Court has the power to prosecute persons who bear the greatest responsibility for serious violations of international humanitarian law and Sierra Leonean law committed in the territory of Sierra Leone since 30 November 1996.258 Hence, unlike the ICTR, which could exercise its jurisdiction for crimes committed anywhere in the world – provided it was carried out by a Rwandan national and took place between 1 January 1994 and 31 December 1994 – the Special Court’s jurisdiction is limited to crimes committed on the territory of Sierra Leone. In this light, any crimes committed albeit in the context of the conflict by foreign or Sierra Leonean nationals out of the territory of Sierra Leone, would not fall under the jurisdiction of the Special Court. This effectively limited the potential cases over which the Special Court could exercise its jurisdiction. 6. The Cases before the Special Court The Special Court issued a total of 13 indictments (Prosecutor v. Charles Ghankay Taylor;259 Prosecutor v. Foday Saybana Sankoh;260 Prosecutor v. Johnny Paul Koroma;261 Prosecutor v. Sam Bockarie;262 Prosecutor v. Issa Hassan Sesay;263 Prosecutor v. Alex Tamba Brima;264 Prosecutor v. Morris Kallon;265 Prosecutor v. 257 Cf. Leonie von Braun, Internationalisierte Strafgerichte, Eine Analyse der Strafverfolgung schwerer Menschenrechtsverletzungen in Osttimor, Sierra Leone und Bosnien-Herzegovina, supra note 124, p. 235 258 Article 1(1), SCSL Statute. 259 SCSL, The Prosecutor v. Charles Ghankay Taylor, Case No. SCSL-2003-01-I, Indictment, 7 March 2003. The indictment against Charles Taylor was unsealed in June 2003 while he was attending peace talks in Accra, Ghana. He was however not arrested by the Ghanian authorities and later was offered asylum in Nigeria. On 29 March 2006, he was flown out of Nigeria to Monrovia, Liberia, where he was immediately transferred to the custody of the Special Court in Freetown. For more on Charley Taylor surrender to the Special Court and the reactions to this, see Priscilla Hayner, Negotiating Peace in Liberia: Preserving the Possibility for Justice, ICTJ and Centre for Humanitarian Dialogue, November 2007. 260 SCSL, The Prosecutor v. Foday Sankoh, Case No. SCSL-2003-02-I, Indictment, 3 March 2003. 261 SCSL, The Prosecutor v. Johny Paul Koroma, Case No. SCSL-2003-03-I, Indictment, 10 March 2003. 262 SCSL, The Prosecutor v. Sam Bokarie, Case No. SCSL-2003-04-I, Indictment, 7 March 2003. 263 SCSL, The Prosecutor v. Issa Sesay, Case No. SCSL-2003-05-I, Indictment, 10 March 2003.

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Sam Hinga Norman;266 Prosecutor v. Augustin Gbao;267 Prosecutor v. Ibrahim Bazzy Kamara;268 Prosecutor v. Santigie Borbor Kanu;269 Prosecutorv. Moinina Fofana;270 Prosecutor v. Allieu Kondewa;271 with two being withdrawn due to the death of the accused either prior to them being under the custody of the Special Court or during the early stage of proceedings (Prosecutor v. Sam Bockarie; Prosecutor v. Foday Saybana Sankoh respectively),272 and one being terminated due to the death of the accused at the end of the proceedings (Prosecutor v. Sam Hinga Norman).273 The accused were ultimately joined into three groups representing the main domestic warring factions involved in the armed conflict, the Armed Forces Revolutionary Council (AFRC [Prosecutor v. Brima, Kamara and Kanu]),274 the Civil Defence Forces (CDF [Prosecutor v. Norman, Fofana and Kondewa])275 and the Revolutionary United Front (RUF [Prosecutor v. Sesay, Kallon and Gbao]).276

264 SCSL, The Prosecutor v. Alex Tamba Brima, Case No. SCSL-2003-06-I, Indictment, 7 March 2003. 265 SCSL, The Prosecutor v. Morris Kallon, Case No. SCSL-2003-07-I, Indictment, 7 March 2003. 266 SCSL, The Prosecutor v. Samu Hinga Norman, Case No. SCSL-2003-08-I, Indictment, 7 March 2003. 267 SCSL, The Prosecutor v. Augustin Gbao, Case No. SCSL-2003-09-I, Indictment, 16 April 2003. 268 SCSL, The Prosecutor v. Ibrahim Bazzy Kamara, Case No. SCSL-2003-10-I, Indictment, 28 May 2003. 269 SCSL, The Prosecutor v. Santigie Borbor Kanu, Case No. SCSL-2003-PT, Indictment, 16 September 2003. 270 SCSL, The Prosecutor v. Moinina Fofana, Case No. SCSL-2003-11-I, Indictment, 26 June 2003. 271 SCSL, The Prosecutor v. Allieu Kondewa, Case No. SCSL-2003-12-I, Indictment, 26 June 2003. 272 Cf.Kai Ambos, Internationales Strafrecht, supra note 22, § 6, mn. 44. SCSL, The Prosecutor v. Issa Sesay, Morris Kallon, Augustine Gbao, Case No. SCSL-04-15-T, Judgment, 2 March 2009, para. 5. See also http: // www.sc-sl.org/CASES/ProsecutorvsSesayKallonand GbaoRUFCase/tabid/105/Default.aspx. For articles on the death of Foday Sankoh, and Sam Bockarie see Amnesty International, Sierra Leone: Foday Sankoh’s death will not diminish the Special Court’s role in ending impunity, AI Index: AI Index: AFR 51 / 008 / 2003, 30 July 2003, http: //web.amnesty.org/library/Index/ENGAFR510082003?open&of=ENG-SLE; and The New Dawn, Moses Blah Killed Sam Bockarie, 8 September 2010, http: //www.thenew dawnliberia.com/index.php?option=com_content&view=article&id=1402:moses-blah-killedsam-bockarie&catid=25:politics&Itemid=59 respectively. 273 SCSL, The Prosecutor v. Sam Hinga Norman, Moinina Fofana and Allieu Kondewa, Case No. SCSL-04-14-T, Decision on Registrar’s Submission of Evidence of Death of Accused Samuel Hinga Norman and Consequential Issues, 21 May 2007, para. 18. 274 SCSL, The Prosecutor v. Sesay, Brima, Kallon, Gbao, Kamara and Kanu, Case No. SCSL-2003-09-PT, Decision and Order on Prosecution Motions for Joinder, 27 January 2004, para. 48. 275 SCSL, The Prosecutor v. Norman, Fofana and Kondewa, Case No. 2003-12-PT, Decision and Order on Prosecution Motion for Joinder, 27 January 2004, para. 35.

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The case involving the former President of Liberia, Charles Taylor is the only one with a single accused. The Special Court has hitherto completed the trials of all three groups, including at the appeals phase and the accused were all convicted and are serving their sentences in Rwanda.277 In the AFRC Trial Sentencing Judgment, the Accused Alex Tamba Brima – senior member of the AFRC leadership, including the AFRC Supreme Council,278 and Santigie Borbor Kanu – member of the AFRC Supreme Council and Senior Commander of the AFRC fighting force in charge of abducted civilians, including women and children,279 – were both sentenced to 50 years imprisonment each, while the third Accused Ibrahim Bazzy Kamara – deputy Commander of the AFRC troops280 – was given a 45 years sentence.281 In the CDF Trial Sentencing Judgment, the Accused Moinina Fofana – CDF National Director of War282 and Allieu Kondewa, High Priest of the CDF and chief initiator of new recruits into the Kamajor Society283 – were sentenced to six years and eight years respectively.284 How276 SCSL, The Prosecutor v. Sesay, Brima, Kallon, Gbao, Kamara and Kanu, Case No. SCSL-2003-09-PT, Decision and Order on Prosecution Motions for Joinder, 27 January 2004, para. 48. The cases were directed against individuals in accordance with the principle of individual criminal responsibility and not against any particular groups. However, for ease of reference and because this has been the common practice in existing literature, I shall be referring to the cases interchangeably by the accronym of the relevant group or the names of the accused. Hence, the Trial against Allieu Kondewa, Moinina Fofana and Samuel Hinga Norman is referred to as the CDF case. The Trial against Issa Sesay, Morris Kallon, and Augustine Gbao is referred to as the RUF case. The Trial against Alex Tamba Brima, Ibrahim Bazzy Kamara, and Santigie Borbor Kanu is referred to as the AFRC case. 277 Cf. Seventh Annual Report of the President of the Special Court for Sierra Leone, June 2009 to May 2010, p. 10. 278 SCSL, The Prosecutor v. Alex Tamba Brima, Ibrahim Bazzy Kamara and Santigie Borbor Kanu, Case No. SCSL-04-16-T, Judgment, para. 332. 279 Ibid., paras. 509, 526. 280 Ibid., paras. 380, 461, 462, 468, 474, 500. 281 SCSL, The Prosecutor v. Alex Tamba Brima, Ibrahim Bazzy Kamara and Santigie Borbor Kanu, Case No. SCSL-04-16-T, Sentencing Judgment, 19 July 2007. On 20 June 2007, Trial Chamber II, composed of Judges Julia Sebutinde of Uganda (Presiding), Richard Lussick of Samoa and Teresa Doherty of Nothern Ireland, found all three accused guilty on Count 1 (acts of terrorism), Count 2 (collective punishments), Count 3 (extermination), Count 4 (murder, a crime against humanity), Count 5 (murder, a war crime), Count 6 (rape), Count 9 (outrages upon personal dignity), Count 10 (physical violence, a war crime), Count 12 (conscripting or enlisting children under the age of 15 years into armed forces or groups, or using them to participate actively in hostilities), Count 13 (enslavement), and Count 14 (pillage). On 22 February 2008, the Appeals Chamber composed of Judges George Gelaga King of Sierra Leone, Emmanuel Ayoola of Nigeria, Renate Winter of Austria, Raja Fernando of Sri Lanka and Jon M. Kamanda of Sierra Leone, upheld sentences of 50 years for Brima, 45 years for Kamara, and 50 years for Kanu. 282 SCSL, The Prosecutor v. Moinina Fofana and Allieu Kondewa, Case No. SCSL-04-14-T, Judgment, paras. 338 – 340. 283 SCSL, The Prosecutor v. Moinina Fofana and Allieu Kondewa, Case No. SCSL-04-14-T, Judgment, paras. 293, 344.

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ever, the CDF Appeal Judgment, issued on 28 May 2008, substantially revised the sentences by increasing them to 15 years for Moinina Fofana and 20 years for Allieu Kondewa.285 In the RUF Trial Sentencing Judgment, the Accused Issa Sesay, RUF Interim Leader, Morris Kallon, former RUF Commander and Augustine Gbao, former RUF Chief of Security were sentenced to 52 years, 40 years and 25 years respectively.286 On 31 October 2009, all those convicted by the Special Court were transferred to Rwanda to serve their sentences.287 The only trial that is not yet completed is that of Charles Taylor, which is at the cusp of receiving a sentencing judgment.288 Obviously, the fact that the Prosecution indicted persons from all the groups – albeit those at the national level – involved in the conflict, including the CDF that was fighting to restore the democratically elected Kabbah government (the same one that entered into an agreement with the UN for the creation of the Special Court) is an important achievement of the Special Court as against for example the ICTR, where no Tutsis have been indicted by the Prosecution despite allegations that the RPF committed crimes during the Rwanda conflict.289 Prior to the issuance of the initial indictments, there was a lot of speculation generally about whether members of the CDF and particularly whether Samuel Hinga Norman, the Minister of Interior and former Deputy Defence Minister and CDF leader at the time relevant to Courts jurisdiction, would be indicted.290 However, a look at the sentences given by the Special Court establishes a clear discrepancy between the period of imprisonment given to the members of the CDF and those of the AFRC / RUF. We shall come back to the issue of sentencing later in this work.291 284 SCSL, The Prosecutor v. Moinina Fofana and Allieu Kondewa, Case No. SCSL-04-14-T, Judgment on the Sentencing of Moinina Fofana and Allieu Kondewa, 9 October 2007. 285 SCSL, The Prosecutor v. Moinina Fofana and Allieu Kondewa, Case No. SCSL-04-14A, Judgment, 28 May 2008. 286 SCSL, The Prosecutor v. Issa Hassan Sesay, Morris Kallon and Augustine Gbao, Case No. SCSL-04-15-T, Sentencing Judgment, 8 April 2009. On 26 October 2009, the Appeals Chamber upheld the sentences imposed by the Trial Chamber of 52 years for Issa H. Sesay (16 counts); 40 years for Morris Kallon (16 counts); and 25 years for Augustine Gbao (12 counts). 287 Cf. Seventh Annual Report of the President of the Special Court for Sierra Leone, June 2009 to May 2010, p. 10. 288 Cf. http: //www.sc-sl.org/. 289 Cf. Carla del Ponte with Chuck Sudetic, Madame Prosecutor, Confrontations with Humanity’s Worst Criminals and the Culture of Impunity: A Memoir, Other Press, New York, 2008, p. 69. See also Kathrin Howarth, The Special Court for Sierra Leone – Fair Trials and Justice for the Accused and Victims, 8 ICLR 3, 2008, p. 406. 290 Cf. Human Rights Watch Report, September 2004, Bringing Justice: The Special Court for Sierra Leone, Accomplishments, Shortcomings and Needed Support, September 2004, available at http: // www.hrw.org / en / node / 11983 / section / 1. 291 See infra, chapter 8 on Legacy.

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7. Conclusion This analysis of the jurisdiction of the Special Court establishes that the main idea in the minds of those who established this institution was to have a more effective and cheaper organization that is capable of rendering justice in a short period of time. Further, the Special Court was even to assist in rebuilding the judicial system of a country that had collapsed as a result of the conflict. However, these goals seem to have been over ambitious and unrealistic to be entirely achieved. Nevertheless, it marked a shift in the approach of the international community towards international criminal justice. It could be seen as an experiment upon which the international community could and should build.

Chapter 4

The Special Court’s Case Law on Crimes against Humanity The analysis of the case law of the Special Court on crimes against humanity requires at the outset a look at the notion and development of crimes against humanity in international humanitarian law (I.). Thereafter we shall look at the Special Court’s definition and rationale of crimes against humanity (II.). Further, we shall analyse the contextual elements of crimes against humanity (III.) and the mental element of this crime (IV.). Thereafter, this study shall analyse the individual elements of the acts enumerated in Article 2 SCSL Statute, which deals with crimes against humanity (V.). This chapter will then be rounded up with a conclusion on the Special Court’s case law on this issue (VI.).

I. Notion and Development of Crimes against Humanity In order to objectively assess the contribution of the Special Court to the development of crimes against humanity, it is important to first analyze the development of crimes against humanity since WW II. The concept of crimes against humanity can be traced as far back as to the Hague Regulations of 1899 and 1907.292 These Conventions could be describes as the legal basis for the creation of this new category of crimes. The Preamble of the 1907 Hague Convention states: “Until a more complete code of the laws of war has been issued, the High Contracting Parties deem it expedient to declare that, in cases not included in the Regulations adopted by them, the inhabitants and the belligerents remain under the protection and the rule of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity, and the dictates of the public conscience.”

Subsequent to the Hague Conventions of 1899 and 1907, the notion was propounded by the French British and Russian Governments on 28 May 1915 as a re-

292 Convention with Respect to the Laws and Customs of War on Land of 26 July 1899 and Convention Respecting the Laws and Customs of War on Land of 18 October 1907 respectively: see http: // www.icrc.org / ihl.

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sult of the mass killings of Armenians in the Ottoman Empire.293 They strongly condemned these acts with the following words: “In view of these new crimes of Turkey against humanity and civilization, the Allied governments announce publicly to the Sublime Porte that they will hold personally responsible [for] these crimes all members of the Ottoman Government and those of their agents who are implicated in such massacres.”

However, the term crimes against humanity was first explicitly formulated and applied as a category of crimes in Article 6 of the Nuremberg Charter.294 The Charter considered the following acts to amount to crimes against humanity: “murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war; or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated”.295 The UNGA on 13 February 1946 expressed its support for the Nuremberg Charter by recommending the extradition and punishment of persons who had committed the crimes enshrined in the Nuremberg Charter. Later that year, it adopted a resolution affirming the principles of the Nuremberg Charter and the judgment of the IMT. This had been described as the initiation of the process of crimes against humanity becoming part of customary international law.296 The definition of crimes against humanity differs in the various international criminal courts. Article 7 of the ICC Statute states that: “For the purpose of this statute, ‘crime against humanity’ means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: (a) murder; (b) extermination; (c) enslavement; (d) deportation or forcible transfer of population; (e) imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; (f) torture; (g) rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; (h) persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court; (i) enforced disappearance of persons; (j) the crime of apartheid; (k) other inhumane acts of a similar character intentionally causing great suffering or serious injury to body or to mental or physical health.”297 293

Cf. Antonio Cassese, International Criminal Law, 2nd edn, OUP, Oxford, 2008, pp. 101

et seq. 294 Cf. Cherif Bassiouni, Crimes Against Humanity in International Criminal Law, 2nd revised edn., 1999, p. 1; Gerhard Werle, Principles of International Criminal Law, 2nd edn., T.M.C. Asser Press, The Hague, 2009, pp. 288 et seq. 295 Article 6(c) IMT Charter, supra note 3. 296 Cf. Antonio Cassese, International Criminal Law, supra note 293, p. 107. 297 Cf. Article 7, ICC Statute.

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Article 5 of the ICTY Statute states that: “The [ICTY] shall have the power to prosecute persons responsible for the following crimes when committed in armed conflict, whether international or internal in character, and directed against any civilian population: (a) murder; (b) extermination; (c) enslavement; (d) deportation; (e) imprisonment; (f) torture; (g) rape; (h) persecutions on political, racial and religious grounds; (i) other inhumane acts.”298

Although Article 3 of the ICTR Statute is essentially the same as Article 5 ICTY Statute, the former differs from the latter in that it does not include the requirement that the crime must be committed in an armed conflict but rather specifies that the crimes must have been committed as part of a ‘widespread and systematic attack’. Article 3 of the ICTR Statute further lists grounds upon which the widespread or systematic attack directed against any civilian population must be perpetrated, namely: “national, political, ethnic, racial or religious grounds”.299 Article 2 of the SCSL Statute which deals with crimes against humanity differs from Articles 5 and 3 of the ICTY and ICTR Statutes respectively, which deal with the same subject matter. The general section (chapeau) of Article 2 SCSL Statute does not – contrary to its ICTY counterpart – specifically require such crime(s) to have been committed “during an armed conflict”. Neither does it – contrary to its ICTR counterpart – require such crime(s) to have been committed on discriminatory grounds (national, political, ethnic, racial or religious grounds). It is worthy of note that customary international law does not require an armed conflict as a conditio sine qua non in order to establish the existence of a crime against humanity.300 In the same light, customary international law does not require a discriminatory or persecutory intent for all crimes against humanity.301 Cf. Article 5, ICTY Statute. Cf. Article 3, ICTR Statute. 300 SCSL, Fofana and Kondewa Trial Judgment’, para. 111; The Prosecutor v. Issa Sesay et al., Case No. SCSL-04-15-T, Judgment, 2 March 2009, para. 77. The existence of an armed conflict is a unique requirement at the ICTY. In the The Prosecutor v. Tadić, Case No. IT-94-I, Appeal Judgment, 15 July 1999 (hereinafter ‘Tadić Appeal Judgment’), para. 251, it was held that: “The armed conflict requirement is satisfied by proof that there was an armed conflict; that is all that the Statute requires, and in so doing, it requires more than does customary international law.” See also Kunarac Appeal Judgment (ICTY, The Prosecutor v. Kunarac et al., Case No. IT-96-23 & IT-96-23 / 1-A, Appeal Judgment, 12 June 2002 (hereinafter ‘Kunarac et al. Appeal Judgment’), para. 83) wherein it was held that: “[…] the requirement […] is a purely jurisdictional prerequisite which is satisfied by proof that there was an armed conflict and that objectively the acts of the accused are linked geographically as well as temporally with the armed conflict”. 301 The existence of a discriminatory or persecutory intent is a jurisdictional requirement unique to the ICTR. In the Akayesu Appeal Judgment (ICTR, The Prosecutor v. Akayesu, Case No. ICTR-96-4-A, Appeal Judgment, 1 June 2001 (hereinafter ‘Akayesu Appeal Judgment’), paras. 465 – 466) it was held that: “[I]n the case at bench, the Tribunal was conferred jurisdiction over crimes against humanity (as they are known in customary international law), but solely ‘when committed as part of a widespread or systematic attack against any civilian population’ on certain discriminatory grounds […]. Indeed this narrows the scope of the juris298 299

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II. The Special Court’s Definition and Rationale of Crimes against Humanity It should be noted that what distinguishes ordinary crimes under national law from international crimes is the context element. It has been described as the “international element” in crimes against humanity which renders certain criminal conduct a matter of international concern.302 Ambos and Wirth lay out two possible reasons as to why the international community may consider a crime as a matter of international concern. First, the fact that it may not effectively be prosecuted at the national level and it is however in the interest of states to ensure that it is prosecuted. Secondly, that the crime is of extreme gravity, invariably accompanied by the unwillingness or inability of national jurisdictions to prosecute them.303 The Special Court’s position regarding crimes against humanity concurs with that of the ad hoc Tribunals in that it regards crimes against humanity – as charged in the Special Court’s indictments – to have been a crime under customary international law at the time of its commission: “The customary status of the Nuremberg Charter, and thus the attribution of individual criminal responsibility for the commission of crimes against humanity, was expressly noted by the Secretary-General [in his Report on the Establishment of the ICTY]. Additional codifications of international law have also confirmed the customary law status of the prohibition of crimes against humanity, as well as two of its most egregious manifestations: genocide and apartheid.[…] [T]his finding is implicit in the [Tadic] Appeals Chamber Decision [on Jurisdiction] which found that ‘[i]t is by now a settled rule of customary international law that crimes against humanity do not require a connection to international armed conflict’. If customary international law is determinative of what type of conflict is required in order to constitute a crime against humanity, the prohibition against crimes against humanity is necessarily part of customary international law […].”304

However, the Special Court’s approach towards crimes against humanity has also developed further than that of the ad hoc Tribunals. Article 2(g) of the SCSL Statute by explicitly criminalizing all forms of sexual violence crimes (rape, sexual slavery, enforced prostitution, forced pregnancy and any other form of sexual violence) clearly extended the Court’s mandate in this respect beyond that of the ad hoc Tridiction, which introduces no additional element in the legal ingredients of the crime as these are known in customary international law. […] Consequently, apart from this restriction of jurisdiction, such crimes continue to be governed in the usual manner by customary international law, namely that discrimination is not a requirement for the various crimes against humanity, except where persecution is concerned.” 302 Cf. Kai Ambos / Steffen Wirth, The Current Law of Crimes Against Humanity, An Analysis of UNTAET Regulation 15 / 2000, 13 CLF 1, 2002, pp. 13 et seq. 303 Ibid. See also Kai Ambos, Crimes Against Humanity and the International Criminal Court, in Sadat (ed.), Forging a Convention for Crimes Against Humanity, supra note 220, pp. 283 et seq. 304 SCSL, Sesay, Kallon, Gbao Trial Judgment, 2 March 2009, para.58, recalling ICTY, Tadić Trial Judgment, 7 May 1997 [footnotes omitted].

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bunals.305 Article 2(g) of the SCSL Statute was derived from Article 7(g) of the ICC Statute which criminalizes rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity. It can be seen that Article 2(g) of the SCSL Statute covers a broad scope of sexual crimes through the wordings “and any other form of sexual violence” similar to – albeit with a slight teleological difference – Article 7(g) ICC Statute “any other form of sexual violence of comparable gravity”.306 The elements of crimes against humanity in the SCSL Statute could be divided into two main parts namely: the contextual elements and the elements of the acts enumerated in Article 2 SCSL Statute. We shall first analyze the contextual elements before looking at the elements of the acts that constitute crimes against humanity.

III. The Contextual Elements (Part of a Widespread or Systematic Attack against any Civilian Population) The prohibition on intentionally directing attacks against civilians is applicable regardless of the nature of the armed conflict and is one of the cornerstones of international humanitarian law.307 The jurisprudence of the ad hoc Tribunals has defined the actus reus of the crime of attacks on civilians as conducting an attack directed against the civilian population or individual civilians causing death or serious injury to body or health.308 We shall on the one hand now analyze what is considered as a “widespread or systematic attack” and on the other hand what is considered as a “civilian population”.

305 Cf. Lashawn R. Jefferson, In war as in Peace: Sexual Violence and Women’s Statute, Human Rights Watch World Report, January 2004, 325. For a critical analysis of the Special Court’s Approach to Sexual Violence in the Civil Defence Force case, see Michelle Staggs Kelsall / Shanee Stepakoff, When We Wanted to Talk about Rape: Silencing Sexual Violence at The Special Court for Sierra Leone, 1 Int J Transitional Justice 3, 2007, pp. 355 – 374. 306 For an analysis of article 7(1)(g), see Kai Ambos, Sexuelle Gewalt in bewaffneten Konflikten und Völkerstrafrecht, in 5 ZIS, 2011, pp. 287 et seq. 307 Conflict Mapping in Sierra Leone, supra note 51, p. 52. 308 ICTY, The Prosecutor v. D. Milošević, Case No. IT-98-29 / 1-T, Judgment, 12 December 2007, para. 942; ICTY, The Prosecutor v. Galić, Case No. IT-98-29-T, Judgment, 5 December 2003 (hereinafter ‘Galić Trial Judgment’), paras. 53, 56; ICTR, The Prosecutor v. Seromba, Case No. ICTR-2001-66, Judgment and Sentence, 13 December 2006, para. 358; ICTR, The Prosecutor v. Baglishema, Case No. ICTR-95-1A-T, Judgment, 7 June 2001, para. 80; ICTR, The Prosecutor v. Nahimana, Barayagwiza and Ngeze, Case No. ICTR-99-52-A, Appeal Judgment, 28 November 2007, para. 918; ICTR, The Prosecutor v. Bagosora, Kabiligi, Ntabakuze and Nsengiyumva, Case No.ICTR-98 – 41-T, Judgment and Sentence, 18 December 2008, para. 2165.

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1. A Widespread or Systematic Attack a) The Word Attack The term “attack” is defined in the Oxford Dictionary as “to take aggressive action against”.309 Article 49 (1) of AP I considers an attack as “acts of violence against the adversary, whether in offence or in defence”.310 The jurisprudence of international criminal courts defines the term “attack” to be “a course of conduct involving the commission of acts of violence”.311 It should be noted that the civilian population subjected to the attack must be the primary rather than incidental target of the attack.312 In which case, the purpose of the attack is immaterial in satisfying this requirement of crimes against humanity.313 The jurisprudence establishes that regardless of whether the act was carried out offensively or defensively, it still is regarded as an attack and should not be directed against the civilian population.314 Cf. Judy Pearsall, The Concise Oxford Dictionary, 10th edn., OUP, Oxford, 1999, p. 85. Cf. Article 49 of 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), (“AP I”). 311 ICTY, The Prosecutor v. D. Milošević, Case No. IT-98-29 / 1-T, Judgment, 12 December 2007, para. 943; ICTY, The Prosecutor v. Galić, Case No. IT-98-29-A, Appeal Judgment, 30 November 2006 (hereinafter ‘Galić Appeal Judgment’), para. 52; ICTY, The Prosecutor v. Krnojelac, Case No. IT-97-25-T, Judgment, 15 March 2002 (hereinafter ‘Krnojelac Trial Judgment’), para. 54; ICTY, The Prosecutor v. Kunarac et al., Case No. IT-96-23-T & IT-96-23 / 1-T, Judgment, 22 February 2001, para.415; ICTY, The Prosecutor v. Kordić and Čerkez, Case No. IT-95-14 / 2-A, Appeal Judgment, 17 December 2004 (hereinafter ‘Kordić and Čerkez Appeal Judgment’), para. 47; ICTY, The Prosecutor v. Naletilić and Martinović, Case No. IT-9834-T, Judgment, 31 March 2003, para. 233; ICTR, The Prosecutor v. Nahimana, Barayagwiza and Ngeze, Case No. ICTR-99-52-A, Appeal Judgment, 28 November 2007, para. 918; ICTR, The Prosecutor v. Bagosora, Kabiligi, Ntabakuze and Nsengiyumva, Case No. ICTR-98-41-T, Judgment and Sentence, 18 December 2008, para. 2165; ICC, Prosecutor v. Bemba, Case No. ICC-01 / 05-01 / 08, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, 15 June 2009, para. 75; Situation in the Republic of Kenya, Decision Pursuant to Article 15 of the Rome Statute on the Authorizsation of an Investigation into the Situation in the Republic of Kenya, 31 March 2010, para. 80. 312 SCSL, The Prosecutor v. Moinina Fofana and Allieu Kondewa, Case No. SCSL-04-14-A, Appeals Judgment, 28 May 2008 (hereinafter ‘Fofana and Kondewa Appeal Judgment’), para. 300. See also Kai Ambos, International Criminal Law: Quo Vadis?, Proceedings of the International Conference held in Siracussa, Italy, 28 November – 3 December 2002, on the Occasion of the 30th Anniversary of ISISC, Nouvelles Etudes Pénales, No. 19, 2004; Kai Ambos / Stephen Wirth, The Current Law of Crimes against Humanity, supra note 302, p. 21; Guénael Mettraux, Crimes Against Humanity in the Jurisprudence of the ICTY and ICTR, 43 Harv. Int’l L. J. 1, 2002, p. 255. 313 Id. 314 It should be noted that the term ‘attack’ should be interpreted differently within the context of a crime against humanity than that of a war crime. See ICTY, Prosecutor v. Kunarac, Case No. IT-96-23-T, Judgment, 22 February 2001, para. 416 (“[An attack] may also encompass situations of mistreatment of persons taking no active part in hostilities, such as someone in detention”); ICTY, Prosecutor v. Stakic, Case No. IT-97-24-T, Judgment, 31 July 2003, para. 623. 309 310

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Therefore, the term “attack” is to be given an ordinary meaning albeit the fact that it includes defensive action. It is thus necessary that whether a particular action constitutes an “attack” or not should be left to be determined by the Trial Chambers on a case-by-case analysis, taking into account the purpose of the attack and its effects on its targets. An attack may encompass any mistreatment of the civilian population and could precede, outlast, or continue during the armed conflict without necessarily being part of the armed conflict.315 It should be noted that an ‘attack’ under crimes against humanity is the modus operandi used in order to commit the crime(s) and is not in itself a crime against humanity.316 Thus the possibility that the accused’s acts differ from the particular acts that characterise the attack, for example an accused commits torture when the general pattern of the conduct is the widespread killing of civilians. As pointed out by Hall, the fundamental requirement is that the acts must not be unrelated to the attack, with the possibility of being regarded as isolated and random acts of involving an individual acting alone.317 The jurisprudence of the Special Court defines an ‘attack’ as being “a campaign, operation or course of conduct”.318 By so doing it adhers to the existing jusrisprudence of the ad hoc Tribunals.319 It as well reaffirmed the fact that such an attack could be in the course of an armed conflict but is not a requirement in its definition in the context of a crime against humanity.320 However, the Special Court’s legal definition of an attack differs slightly in wording with that of the ICC. The ICC Statute requires that such “[c]ourse of conduct involv[e] the multiple commission of acts […] against any civilian population, pur315

ICTR, Akayesu Trial Judgment, para. 581; ICTY, Kunarac et al. Appeal Judgment, para.

86. 316 Guénael Mettraux, Crimes Against Humanity in the Jurisprudence of the International Criminal Tribunals for the Former Yugoslavia and for Rwanda, supra note 312, p. 245. 317 See Christopher Hall, Commentary on Art. 7, mn. 10, in: Otto Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court – Observers’ Notes, Article by Article, 2nd edn. C.H. Beck, Hart and Nomos, München, 2008, pp. 168 et seq. 318 SCSL, Sesay, Kallon, Gbao Trial Judgment, para. 77; SCSL, Fofana and Kondewa Trial Judgment, para. 111, citing The Prosecutor v. Brima, Kanu and Kamara, Case No. SCSL-0416-T, Decision on Defence Motions for Judgment of Acquittal Pursuant to Rule 98 (Trial Chamber), 31 March 2006, para. 42. 319 ICTY, Kunarac et al. Appeal Judgment, 12 June 2002, para. 86; ICTY, The Prosecutor v. Limaj, Bala and Musliu, Case No. IT-03-66-T, Judgment, 20 November 2005, para. 182; ICTY, The Prosecutor v. Vasiljević, Case No. IT-98-32-T, Judgment, 29 November 2002, para. 30; – ICTY, The Prosecutor v. Naletilić and Martinović, Case No. IT-98-34-T, Judgment, 31 March 2003, para. 233. 320 SCSL, Sesay, Kallon, Gbao Trial Judgment, para. 77; ICTY, Kunarac et al. Appeal Judgment, 12 June 2002, para. 86; ICTY, The Prosecutor v. Limaj, Bala and Musliu, Case No. IT-03-66-T, Judgment, 20 November 2005, para. 182; ICTY, The Prosecutor v. Vasiljević, Case No. IT-98-32-T, Judgment, 29 November 2002, para. 30; - ICTY, The Prosecutor v. Naletilić and Martinović, Case No. IT-98-34-T, Judgment, 31 March 2003, para. 233.

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suant to or in furtherance of a State or organizational policy to commit such attack”.321 The Pre-Trial Chamber in the Bemba case held that: “The legal requisite of ‘multiple commission of acts’ means that more than a few isolated incidents or acts as referred to in article 7(1) of the Statute have occurred.322 The requirement of ‘a State or organizational policy’ implies that the attack follows a regular pattern. Such a policy may be made by groups of persons who govern a specific territory or by any organization with the capability to commit a widespread or systematic attack against a civilian population.”323

Nevertheless, both definitions strive to ensure that the acts were not coincidental and improvised but were carefully planned before being carried out. The criterion of the establishment of a policy is that what distinguishes ICC definition from the Special Court definition. However, this is not a higher threshold as such since the ICC clarifies that such a policy need not be finalized and that an attack which is planned, directed or organized would suffice to satisfy this criterion.324 Therefore, bearing in mind that the carrying out of a campaign or course of action requires a certain degree of planning and organization, the policy criterion of the ICC Statute does not establish a higher threshold than the definition of attack as laid out by the Special Court and the ad hoc Tribunals. In this regard, the author views the Special Court’s definition of “attack” as contributing towards the certainty of the law. The ICC is currently investigating the crimes committed on the territory of Libya since 15 February 2011 and could rely on this interpretation in its investigations and possibly subsequent trials before it.325 The Pre-Trial Chamber in issuing arrest warrants against Ghadaffi et al, satisfied itself that the attack was within the meaning of Article 7(1) ICC Statute and directed against the civilian population.326 The recent ICC Decisions is further evidence of the established jurisprudence in this regard.

321 See Art. 7(2)(a) ICC Statute. For more on the requirement in the ICC’s definition of an attack of the existence of a conduct carried out “in furtherance of a State or organizational policy”, see Gerhard Werle and Boris Burghardt, Erfordern Menschlischkeitsverbrechen die Beteiligung eines Staates oder einer ‘staatsähnlichen’ Organisation?, 6 ZIS 2012, pp. 271 – 281. 322 Footnote omitted. 323 ICC, The Prosecutor v. Jean-Pierre Bemba Gombo, Case No. ICC-01 / 05-01 / 08, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, 15 June 2009, para. 79 – 81. 324 ICC, The Prosecutor v. Jean-Pierre Bemba Gombo, Case No. ICC-01 / 05-01 / 08, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, 15 June 2009, para. 81. 325 Cf. UNSC Resolution 1970 referring the situation in the Libyan Arab Jamahiriya since 15 February 2011 to the Prosecutor of the International Criminal Court, UN Doc. S / RES / 1970 (2011) adopted by the Security Council at its 6491st meeting, on 26 February 2011. 326 ICC, Situation in the Libyan Arab Jamahiriya, Case No. ICC-01 / 11-01 / 11-1, Decision on the “Prosecutor’s Application Pursuant to Article 58 as to Muammar Mohammed Abu Minyar Gaddafi, Saif-Al-Islam Gaddafi and Abdullah Al-Senussi”, 27 June 2011, para. 35.

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b) The Phrase Widespread or Systematic Other than in the SCSL Statute, the ‘widespread or systematic’ requirement can be found in several other Statutes of international criminal courts.327 It should be noted that the requirement of a widespread or systematic attack was first codified in the ICTR Statute and subsequently in the ICC Statute.328 The international criminal courts have interpreted the ‘widespread’ characteristic as relating to the scale of the acts perpetrated and the number of victims.329 However, it is important to note that – apart from in the case of extermination – a crime need not be carried out against a multiplicity of victims in order to amount to a crime against humanity. In this light, an act directed against a limited number of victims, or even a single victim, could amount to a crime against humanity, provided the requirements of it being part of a widespread or systematic attack against a civilian population are met.330 The ‘systematic’ characteristic has been interpreted by the ad hoc Tribunals as well as the Special Court as referring to the organized nature of the pattern, i.e. a non-accidental repetition of similar conduct and the improbability of their random occurrence.331 The Special Court, as well as the ad hoc Tribunals interpreted the ‘widespread or systematic’ requirement as not being conjuctive but rather disjunctive.332 While this interpretation by the ad hoc Tribunals, in particular with regard to

327 Cf. Article 5, Law on the Establishment of Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed during the Period of Democratic Kampuchea, supra note 8; Article 3, ICTR Statute; Article 7(1) ICC Statute. 328 See Kai Ambos and Steffen Wirth, The Current Law of Crimes Against Humanity, supra note 302, pp. 15 et seq. 329 ICTY, The Prosecutor v. Naletilić and Martinović, Case No. IT-98-34-T, Judgment, 31 March 2003, para. 236; ICTR, The Prosecutor v. Musema, Case No-ICTR-96 – 13, Judgment and Sentence, 27 January 2000, para. 204; ICC, Prosecutor v. Katanga and Ngudjolo Chui, Case No. ICC-01 / 04-01-07, Pre-Trial Chamber, Decision on the Confirmation of Charges, 30 September 2008, para. 395; Prosecutor v. Bemba, Case No. ICC-01 / 05-01 / 08, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, 15 June 2009, para. 83. See also Kai Ambos and Stephen Wirth, The Current Law of Crimes Against Humanity, supra note 302, pp. 20 et seq. 330 ICTR, The Prosecutor v. Nahimana, Barayagwiza and Ngeze, Case No. ICTR-99-52-A, Appeal Judgment, 28 November 2007, para. 924. See also Review of the Sexual Violence Elements of the Judgments of the International Criminal Tribunal for the Former Yugoslavia, The International Criminal Tribunal for Rwanda, and the Special Court for Sierra Leone in the Light of Security Council Resolution 1820, United Nations, Department of Peacekeeping Operations, 2010, p. 23. 331 ICTY, The Prosecutor v. Naletilić and Martinović, Case No. IT-98-34-T, Judgment, 31 March 2003, para. 236; ICTR, The Prosecutor v. Rutaganda, Case No. ICTR-96-3-T, Judgment and Sentence, 6 December 1999, para. 67; ICTY, Kunarac et al. Appeal Judgment, paras. 94, 95 (Whether the attack was widespread or systematic must be ascertained in light of the means, methods, patterns, resources, participation of officials or authorities, and result of the attack upon that population); ICTY, The Prosecutor v. Blaškić, Case No. It-95-14-A, Appeal Judgment, 29 July 2004 (hereinafter ‘Blaškić Appeal Judgment’), para. 101; SCSL, Sesay, Kallon, Gbao Trial Judgment, para. 78; SCSL, Brima, Kamara, Kanu Trial Judgment, paras. 213 – 222.

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the ICTR is open to debate since the French version of the ICTR Statute suggest a cumulative rather than a disjunctive criteria,333 the SCSL Statute clearly states ‘widespread or systematic’ and not ‘widespread and systematic’. The effect of such an interpretation being that the Prosecution need not proof that the attacks were both widespread and systematic. The Trial Chamber in the CDF case having found that the attacks were widespread, declined to consider whether they were also systematic.334 Further, the jurisprudence of the ad hoc Tribunals holds that it is not necessary to prove the existence of a policy or plan in order to establish the widespread or systematic nature of the attack.335 The Appeals Chamber of the ad hoc Tribuals held that: “[t]here is nothing in the Statute or in customary international law at the time of the alleged acts which required proof of the existence of a plan or policy to commit these crimes […] proof that the attack was directed against a civilian population and that it was widespread or systematic, are legal elements of the crime. But to prove these elements, it is not necessary to show that they were the result of the existence of a policy or plan. It may be useful in establishing that the attack was directed against a civilian population and that it was widespread or systematic (especially the latter) to show that there was in fact a policy or plan, but it may be possible to prove these things by reference to other matters. Thus, the existence of a policy or plan may be evidentially relevant, but not a legal element of the crime.”336

The ICC Pre-Trial Chamber I in the Harun / Kushayb case held a similar view that: “[…] policy is an element from which the systematic nature of an attack may be inferred”.337 However, more recently the Katanga and Ngudjolo Pre-Trial Chamber held that: “the requirement of an organisational policy pursuant to article 7(2) (a) of the Statute ensures that the attack, even if carried out over a large geographical area or directed against a large number of victims, must still be thoroughly organised and follow a regular pattern. It must also be conducted in furtherance of a common policy involving public or private re332 ICTY, Kunarac et al. Appeal Judgment, para. 93; ICTY, The Prosecutor v. Kupreškić, Case No. IT-95-16-T, Judgment, 14 January 2000, para. 554; ICTY, The Prosecutor v. Blaškić, Case No. IT-95-14-T, Judgment, 3 March 2000, para. 207; ICTY, The Prosecutor v. Kordić and Čerkez, Case No. IT-95-14 / 2, Judgment, 26 February 2001, para. 178. 333 ‘Le tribunal international pour le Rwanda est habilité à juger les personnes présumées responsables des crimes suivants lorsqu’ils ont été commis dans le cadre d’une attaque generalisée et systématique’. 334 SCSL, Brima, Kamara, Kanu Trial Judgment para. 692. 335 ICTY, Prosecutor v. Blaškić, Case No. IT-95-14-A, Judgment, 29 July 2004, para. 100; ICTR, Prosecutor v. Semanza, Case No. ICTR-97-20-T, Judgment and Sentence, 15 May 2003, para. 329. 336 ICTY, Kunarac et al. Appeal Judgment, para. 98. 337 ICC, The Prosecutor v. Ahmad Muhammad Harun (“Ahmad Harun”) and Ali Muhammad Al Abd-Al-Rahman (“Ali Kushayb”), Case No. ICC-02 / 05-01 / 07, Decision on the Prosecution Application under Article 58(7) of the Statute, 27 April 2007, para. 62.

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The requirement of such a policy element ensures that national and international crimes (against humanity) are not classified the same.339 Ambos points out that this policy requirement would ensure that not only the quantity aspect of the crime is taken into account but also the quality aspect.340 A perfect illustration is the recent killing of several youths in Norway by a single individual.341 While this act was atrocious, it would not be in the spirit of international law, to consider the act as amounting to a crime against humanity. Hence the need to differentiate between acts which might cause several victims and crimes whereby this result was part of a policy – be it of a state or an organization. With regard to the Special Court, it adopted the same approach as the ad hoc Tribunals, i.e. that “[t]he existence of a policy or plan, or that the crimes were supported by a policy or plan to carry them out, may be evidentially relevant to establish the widespread or systematic nature of the attack and that it was directed against a civilian population, but it is not a separate legal requirement for crimes against humanity”.342 It held that: “[i]n order to determine whether the attack may be said to have been so directed [against a civilian population], the Trial Chamber will consider, inter alia, the means and method used in the course of the attack, the status of the victims, their number, the discriminatory nature of the attack, the nature of the crimes comitted in its course, the resistance to the assailants at the time and the extent to which the attacking force may be said to have complied or attempted to comply with the precautionary requirements of the laws of war.”343

Hence, the Special Court has in this respect not contributed to the definition of crimes against humanity. By merely adhering to the Jurisprudence of the ad hoc Tribunals, which, draw on the ILC’s 1996 Draft Code,344 the Special Court’s jurisprudence in this light can be regarded as being “merely illustrative”.345

338 ICC, The Prosecutor v. Katanga and Ngudjolo Chui, Case No. ICC-01 / 04-01-07, PreTrial Chamber, Decision on the Confirmation of Charges, 30 September 2008, para. 396. 339 Cf. Kai Ambos, Internationales Strafrecht, supra note 22, §7, mn. 186. 340 Ibid. 341 See http: // www.bbc.co.uk / news / world-14313824. 342 SCSL, Sesay, Kallon, Gbao Trial Judgment, para. 79. 343 SCSL, The Prosecutor v. Norman, Fofana, Kondewa, Case No. SCSL-04-14-T, Decision on Motions for Judgment of Acquital Pursuant to Rule 98, 21 October 2005, para. 57; SCSL, Sesay, Kallon, Gbao Trial Judgment, para. 79, referring to ICTY, Kunarac et al. Appeal Judgment, para. 91. 344 ILC Draft Code of Crimes against the Peace and Security of Mankind, II(2) Yearbook Int’l L. Comm’n 15, 1996, Article 18. 345 See Ambos / Wirth, The Current Law of Crimes Against Humanity, supra note 302, p. 21.

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2. Any Civilian Population In accordance with the current jurisprudence of international criminal courts, whether or not a person is considered to be a civilian is the key issue in determining whether the person is entitled to protection against direct attack unless and for such time as they take a direct part in hostilities. Hence the necessity to first discern this term. The term “civilian” is defined in the Black’s Law Dictionary as “a person not serving in the military”.346 Article 50(1) of AP I considers a civilian to be “any person who does not belong to one of the categories of persons referred to in Article 4 (A)(1), (2), (3) and (6) of the Third Geneva Convention and in Article 43 of Additional Protocol I.”347 In the context of a crime against humanity, the civilian populaCf. Bryan A. Garner, Black’s Law Dictionary, 9th edn., West Group, p. 280. 347 Article 50(1), AP I; Article 4 (A)(1), (2), (3) and (6) of the Geneva Convention (III) Relative to the Treatment of Prisoners of War, 12 August 1949, states respectively that: A. Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy: (1) Members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces. (2) Members of other militias and members of other volunteer corps, incuding those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions: (a) that of being commanded by a person responsible for his subordinates; (b) that of having a fixed distinctive sign recognizable at a distance; (c) that of carrying arms openly; (d) that of conducting their operations in accordance with the laws and customs of war. (3) Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power. […] (6) Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war. Article 43, AP I states that: 1. The armed forces of a Party to a conflict consist of all organized armed forces, groups and units which are under a command responsible to that Party for the conduct of its subordinates, even if that Party is represented by a government or an authority not recognized by an adverse Party. Such armed forces shall be subject to an internal disciplinary system which, ‘inter alia’, shall enforce compliance with the rules of international law applicable in armed conflict. 2. Members of the armed forces of a Party to a conflict (other than medical personnel and chaplains covered by Article 33 of the Third Convention) are combatants, that is to say, they have the right to participate directly in hostilities. 3. Whenever a Party to a conflict incorporates a paramilitary or armed law enforcement agency into its armed forces it shall so notify the other Parties to the conflict. See also ICC, The Prosecutor v. Jean-Pierre Bemba Gombo, Case No. ICC-01 / 05-01 / 08, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, 15 June 2009, para. 78; Situation in the 346

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tion must be the primary object of the attack rather than an incidental target in order for this requirement to have been met.348 The jurisprudence of the ad hoc Tribunals holds that in determining whether the attack was directed against civilians or the civilian population, an analysis must be carried out on a case-by-case basis. In doing so, various factors must be taken into consideration such as: “the means and method used in the course of the attack, the status of the victims, their number, the discriminatory nature of their attack, the nature of the crimes committed in its course, the resistance of the assailants at the time and the extent to which the attacking force may be said to have complied or attempted to comply with the precautionary requirements of the laws of war”.349 In the Baglishema case350 it was held that the ‘civilian population’ requirement is intended to imply crimes of a collective nature and thus exclude single or isolated cases. However, the jurisprudence of the ad hoc Tribunals holds that while the primary target has to be civilians, the victims need not be exclusively civilian.351 In the Kunarac et al. case, the ICTY Appeals Chamber held that “the use of the word ‘population’ does not mean that the entire population of the geographical entity in which the attack is taking place must have been subjected to that attack”.352 Combatants who are placed hors de combat either as a result of sickness, wounds or detention can also be considered as victims of a crime against humanity.353 It is worthy of note that, the presence of non-civilians within the population does not deprive the population of its civilian character.354 Republic of Kenya, Decision Pursuant to Article 15 of the Rome Statute on the Authorizsation of an Investigation into the Situation in the Republic of Kenya, 31 March 2010, para. 82. 348 ICTY, Kunarac et al. Appeal Judgment, 12 June 2002, para. 90; SCSL, The Prosecutor v. Moinina Fofana and Allieu Kondewa, Case No. SCSL-04-14-A, Appeals Judgment, 28 May 2008, para. 299; ICC, The Prosecutor v. Jean-Pierre Bemba Gombo, Case No. ICC01 / 05-01 / 08, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, 15 June 2009, para. 77; Situation in the Republic of Kenya, Decision Pursuant to Article 15 of the Rome Statute on the Authorizsation of an Investigation into the Situation in the Republic of Kenya, 31 March 2010, para. 82. 349 ICTY, Galić Appeal Judgment, para. 132, referring to ICTY, Kunarac et al. Appeal Judgment, para. 91 and ICTY, Blaškić Appeal Judgment, para. 106. 350 ICTR, The Prosecutor v. Baglishema, Case No. ICTR-95-1A-T, Judgment, 7 June 2001, para. 80. 351 ICTY, The Prosecutor v. Kupreškić, Case No. IT-95-16-T, Judgment, 14 January 2000, para. 568; ICTY, Kordić and Čerkez Appeal Judgment, para. 180; ICTR, Akayesu Appeal Judgment, para. 582; ICTR, The Prosecutor v. Semanza, Case No. ICTR-97-20-T, Judgment and Sentence, 15 May 2003, para. 330. 352 ICTY, Kunarac et al. Appeal Judgment para. 90. 353 ICTY, The Prosecutor v. Martić, Case No. IT-95-11-A, Appeal Judgment, 8 October 2008, paras. 307, 314: “307. “[…] There is nothing in the text of [the crimes against humanity provision] the Statute, or previous authorities of the Appeals Chamber that requires that individual victims of crimes against humanity be civilians. […] 314. […] the Appeals Chamber finds that the Trial Chamber erred in finding that, under Article 5 of the Statute, persons hors de combat are excluded from the ambit of crimes against humanity when the crimes com-

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The importance of the primary object of the attack cannot be overemphasized. In the Moinina Fofana and Allieu Kondewa case, the Trial Chamber while being satisfied that the ‘widespread’ requirement for crimes against humanity had been established, the element that the civilian population must have been the primary object of the attack was absent. The Trial Chamber in this case held that it had not been proven beyond reasonable doubt that the civilian population was the primary object of the attack since “there is evidence that these attacks were directed against the rebels or juntas” controlling the communities throughout Sierra Leone.355 The Special Court Appeals Chamber in reaffirming the Trial Chamber’s finding, as well as the existing international criminal law jurisprudence on the elements of crimes against humanity, stated that “[w]hen the target of an attack is the civilian population, the purpose of the attack is immaterial”.356 On the other hand, the protection from attack afforded to civilians is suspended when and for such time that they directly take part in hostilities.357 Having said that, it should be noted that some academics such as Ambos, argue that having the term ‘civilian’ in crimes against humanity in ‘peacetime’ is redundant. He argues that in peace time there are no ‘combatants’ and every individual including soldiers and police officers should be considered as ‘civilians’ and entitled to the basic rights granted to every humanbeing.358 The author in abiding to this view notes that, per definition, in time of peace there are no combats going on and mitted against them occur as part of a widespread or systematic attack against the civilian population. Provided this chapeau requirement is satisfied, a person hors de combat may be a victim of crimes against humanity.” 354 ICTY, The Prosecutor v. Tadić, Case No. IT-94-I-T, Opinion and Judgment, 7 May 1997, para. 638; ICTR, The Prosecutor v. Kayishema and Ruzindana, Case No. ICTR-95-1-T, Judgment, 21 May 1999, para. 128; SCSL, The Prosecutor v. Norman, Fofana and Kondewa, Case No. SCSL-04-14-T, Decision on Motions for Judgment of Acquittal Pursuant to Rule 98, 21 October 2005, para. 59. 355 SCSL, The Prosecutor v. Moinina Fofana and Allieu Kondewa, Case No. SCSL-04-14-T, Judgment, 2 August 2007, para. 693. 356 SCSL, The Prosecutor v. Moinina Fofana and Allieu Kondewa, Case No. SCSL-04-14-A, Appeals Judgment, 28 May 2008, para. 300. 357 ICTY, The Prosecutor v. D. Milošević, Case No. IT-98-29 / 1-T, Judgment, 12 December 2007, para. 947; ICTY, The Prosecutor v. Galić, Case No. IT-98-29-T, Judgment, 5 December 2003, para. 48; Article 51(3) of AP I; Article 13(3) of AP II. The ICTY Appeals Chamber held that “as the temporal scope of an individual’s participation in hostilities can be intermittent and discontinuous, whether a victim was actively participating in the hostilities at the time of the offence depends on the nexus between the victim’s activities at the time of the offence and any acts of war which by their nature or purpose are intended to cause actual harm to the personnel or equipment of the enemy’s armed forces” (ICTY, The Prosecutor v. Strugar, Case No. IT-01-42-A, Appeal Judgment, 17 July 2008, para. 178. For more on taking direct part in hostilities see Chapter Six, Section II sub 3 below. 358 Cf. Kai Ambos, Internationales Strafrecht, supra note 22, § 7, mn. 189 – 191. See also Kai Ambos, Crimes Against Humanity and the International Criminal Court, in: Sadat (ed.), Forging a Convention for Crimes Against Humanity, supra note 220, pp. 279 et seq.

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hence no need to distinguish between ‘civilians’ and ‘combatants’. Every human being should be entitled to the same basic rights so long as s / he is not taking part in any combats. Although this view is contrary to the existing jurisprudence on this issue, it should be noted that in peace time international humanitarian law is not applicable but rather human rights law, hence in order to permit courts to be able to fully protect all those in need there should be no distinctions made. The effect of the current jurisprudence is that the courts are bound, although in peace time, to distinguish between civilians and combatants.

3. ‘Part of’ Article 2 of the SCSL Statute requires that in order for an act to qualify as a crime against humanity it must have been committed as part of a widespread or systematic attack against any civilian population. There is therefore the need for the establishment of a nexus between the unlawful act and the attack.359 The requirement of the nexus to the attack excludes random or isolated acts not forming part of the attack from being regarded as crimes against humanity. Although the ‘widespread or systematic’ requirement generally necessitates the existence of several acts, in order to fulfill the element of ‘part of’ there is no need to establish the existence of a large number of acts. Thus, a single act may amount to a crime against humanity, if carried out as part of a larger attack. The Mrkšić Trial Chamber held that: “[c]rimes against humanity are to be distinguished from war crimes against individuals. In particular, they must be widespread or demonstrate a systematic character. However, as long as there is a link with the widespread or systematic attack against a civilian population, a single act could qualify as a crime against humanity. As such, an individual committing a crime against a single victim or a limited number of victims might be recognized as guilty of a crime against humanity if his acts were part of the specific context identified above.”360

While recognizing the fact that the determination of which act constitutes part of an attack must be done on a case by case basis, the AFRC Trial Chamber list some indicia which could assist in making such a determination. These indicia are (1) the similarities between the perpetrator’s acts and the acts occurring within the attack; (2) the nature of the events and circumstances surrounding the perpetrator’s acts; 359 ICTY, Tadić Appeal Judgment, para. 251; ICTY, The Prosecutor v. Kordić and Čerkez, Case No. IT-95-14 / 2, Judgment, 26 February 2001 (hereinafter ‘Kordić and Čerkez Trial Judgment’), para. 33. 360 ICTY, The Prosecutor v. Mrkšić, Radić and Šljivančanin, Case No. IT-95-13-R61, Review of the Indictment pursuant to Rule 61, 3 April 1996, para. 30. See also for similar jurisprudence, ICTY, The Prosecutor v. Tadić, Case No. IT-94-I-T, Opinion and Judgment, 7 May 1997, para. 649; ICTY, Kordić and Čerkez Trial Judgment, para. 178; ICTR, The Prosecutor v. Kayishema and Ruzindana, Case No. ICTR-95-1-T, Judgment, 21 May 1999, para. 135; ICC, The Prosecutor v. Jean-Pierre Bemba Gombo, Case No. ICC-01 / 05-01 / 08, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, 15 June 2009, para. 84.

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(3) the temporal and geographic proximity of the perpetrator’s acts with the attack; and (4) the nature and extent of the perpetrator’s knowledge of the attack when he commits the acts.361

IV. The Mental Element (mens rea) In order to establish that an accused is guilty of committing crimes against humanity, the mental element must be proven. It must be established that the accused knew of the broader context in which his or her act was committed, i.e. that the accused had the knowledge that his acts constituted part of a widespread or systematic attack directed against a civilian population. There is thus a twofold element to establish. First, it must be established that the accused was aware of the broader context of the attack and second, it must be established that the accused knew that his or her act constituted part of the attack against the civilian population.362 The reason / motive why the accused carried out the act is irrelevant in fulfilling the mental element.363 It suffices that it can be established that the act carried out by the accused is related to the attack and the accused was aware of this fact.364 The AFRC Trial Chamber applied the existing jurisprudence of the ad hoc Tribunals and stated that “[i]t does not suffice that an accused knowingly took the risk of participating in the implementation of a policy, plan or ideology”.365 Thus, the mere establishment of the existence of a policy, plan or ideology would not suffice to fulfill the mental requisite for crimes against humanity. Likewise, it would not suffice to establish

SCSL, Brima, Kamara, Kanu Trial Judgment, 20 June 2007, para. 222. ICTR, The Prosecutor v. Semanza, Case No. ICTR-97-20-T, Judgment and Sentence, 15 May 2003, para. 331; ICTY, Kunarac et al. Appeal Judgment para. 102; ICTY, Blaškić Appeal Judgment para. 124; ICTY, Prosecutor v. Dordević, Case No. IT-05-87 / 1-T, Judgment, 23 February 2011, para. 1594; ICC, The Prosecutor v. Katanga and Ngudjolo, Case No. 01 / 04-01 / 07-717, Pre-Trial Chamber, Decision on the Confirmation of Charges, Public Redacted Version, 30 September 2008, para. 401 et seq.; ICC, The Prosecutor v. Omar Hassan Ahmad Al Bashir (“Omar Al Bashir”), Case No. ICC-02 / 05-01 / 09, Decision on the Prosecution’s Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir, Public Redacted Version, 4 March 2009, para. 87. 363 See G. Fletcher, Rethinking Criminal Law, Boston, Little Brown 1978, p. 452; A. Cassese, International Criminal Law, supra note 293, p. 168. For distinction between intent and motive, see Kai Ambos, Amicus Curiae Brief on the Question of the Applicable Terrorism Offence in the Proceedings before the Special Tribunal for Lebanon, with a Particular Focus on a “Special” Special Intent and / or a Special Motive as Additional Subjective Requirements, Re: Case No. STL-11-01 / 1, Scheduling Order of the President, 21 January 2011, Göttingen, Germany, 11 February 2011, paras. 4 – 5; id., Judicial Creativity at the Special Tribunal for Lebanon: Is There a Crime of Terrorism under International Law?, 24 LJIL 3, 2011, pp. 655 – 675. 364 ICTY, Tadić Appeal Judgment, paras. 248, 271, 272; ICTY, The Prosecutor v. Limaj, Bala and Musliu, Case No. IT-03-66-T, Judgment, 20 November 2005, para. 190. 365 SCSL, Brima, Kamara, Kanu Trial Judgment, para. 222. 361 362

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that the accused knew of the existence of the policy, plan or ideology. It must be established that the accused was aware of the overall context in which his or her acts took place and that his or her acts were part of the attack.366 Hence, in as much as the Special Court’s jurisprudence consolidates the existing jurisprudence on this issue, it can be viewed as being merely illustrative. 1. The Discriminatory Element This element entails the commission of crimes against humanity on ‘national, political, ethnic, racial or religious grounds’.367 The ad hoc Tribunals – despite the fact that the introductory paragraph of Article 3 of the ICTR Statute does contain these discriminatory elements – held that there is no customary law requirement that crimes against humanity be committed with a discriminatory intent, except in the specific case of persecution.368 The SCSL Statute does not contain such a discriminatory element in the introductory paragraph (chapeau) of its crimes against humanity but however has this as a requirement for the specific crime of persecution.369 We shall address this issue below when discussing the crime of persecution.

V. The Elements of the Acts Enumerated in Article 2 SCSL Statute Article 2 SCSL Statute list nine types of acts that amount to a crime against humanity – provided the contextual elements discussed above have been met. 1. Murder Murder is listed in most of the statutes of international(ized) criminal courts as the first punishable act of crimes against humanity. The Special Court adopted the following elements for the crime of murder: (1) the perpetrator by his / her acts or omission caused the death of a person or persons; and (2) the perpetrator had the intention to kill or to cause serious bodily harm in the reasonable knowledge that it would likely result in death.370 In order to satisfy the first element, which is the acEmphasis added. Cf. William Schabas, The UN International Criminal Tribunals, The former Yugoslavia, Rwanda and Sierra Leone, supra note 163, p.196. 368 Cf. ICTY, Tadić Trial Judgment paras. 283, 292, 305; ICTY, Kordić and Čerkez Trial Judgment, para. 186; ICTR, Akayesu Trial Judgment, paras. 447 – 469; ICTR, The Prosecutor v. Semanza, Case No. ICTR-97-20-T, Judgment and Sentence, 15 May 2003, para. 332. 369 See further on this issue Chapter Four (Section V[h]) below. 370 SCSL, Brima, Kamara, Kanu Trial Judgment, para. 688. For more on these elements of murder, see Cherif Bassiouni, Crimes Against Humanity in International Criminal Law, 2nd 366 367

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tus reus of murder, it must be established that the perpetrator’s conduct substantially contributed to the death of the victim.371 This interpretation vis-à-vis the actus reus of murder is unproblematic and reflects consistent law applied by international Tribunals. However, the ad hoc Tribunals have been unable to agree as to what scope of interpretation should be given to mental element i.e. the mens rea of ‘murder’. While some ICTR Trial Chamber jurisprudence seems to favor the approach that in order to satisfy the mental element of murder there is the need to establish premeditation,372 ICTY Trial Chamber jurisprudence holds that it is settled that premeditation is not required.373 The Elements of Crimes of the ICC also follow the approach that there is no need to establish premeditation for the crime against humanity of murder.374 They just refer to “killing”, with a footnote indicating that this is interchangeable with the phrase “caused the death of”.375 The Special Court in analyzing the crime of murder followed the approach that there is no need to establish premeditation in order to have met the mens rea requirement.376 It further noted that in order to satisfy the mens rea requirement, it suffices to establish the existence of the intention to kill or the intention to cause serious bodily harm in the reasonable knowledge that it would in all likelihood result in the death of the victim.377 With regard to the requirement of premeditation, in as much as the Special Court’s application of the ICTY as well as ICC approach consolidates the existing law, it would have been more beneficial if, prior to adopting this approach, the Special Court had engaged in an in-depth analysis of the ICTY and ICTR jurisprudence on this issue. Only after having carried out such an analysis should the Special

revised edn., Kluwer Law International, The Hague / London / Boston, 1999, pp. 300 et seq.; Kai Ambos, Internationales Strafrecht, supra note 22, § 7, mn. 200 et seq. 371 ICTY, Krnojelac Trial Judgment, para. 326; ICTY, Tadić Trial Judgment, para. 240. 372 ICTR, The Prosecutor v. Baglishema, Case No. ICTR-95-1A-T, Judgment, 7 June 2001, paras. 84 – 85; ICTR, The Prosecutor v. Kayishema and Ruzindana, Case No. ICTR-95-1-T, Judgment, 21 May 1999, paras. 138 – 139; ICTR, The Prosecutor v. Ntakirutimana et al., Case No.ICTR-96-10 & ICTR-96-17-T, Judgment and Sentence, 21 February 2003; ICTR, The Prosecutor v. Semanza, Case No. ICTR-97-20-T, Judgment and Sentence, 15 May 2003, paras. 334 – 339. The ICTR Judges took this approach on the grounds that the elements of the crime of assassinat under French law require an element of premeditation. 373 ICTY, Kordić and Čerkez Trial Judgment, para. 235; ICTY, The Prosecutor v. Jelisić, Case No. IT-95-10-T, Judgment, 14 December 1999, para. 51; ICTY, The Prosecutor v. Orić, Case No. IT-03-68, Judgment, 30 June 2006, para. 348: ICTY, The Prosecutor v. Brđanin, Case No. IT-99-36, Judgment, 1 September 2004, para. 386. 374 ICC Elements of Crimes, Article 7(1)(a), para. 1, Doc. ICC-ASP / 1 / 3, adopted and entered into force 9 September 2002. 375 Ibid. 376 SCSL, Brima, Kamara, Kanu Trial Judgment, 20 June 2007, para. 690; SCSL, Sesay, Kallon, Gbao Trial Judgment, 2 March 2009, para. 140. 377 SCSL, Sesay, Kallon, Gbao Trial Judgment, para. 140.

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Court then have determined – in its view – whether or not there is the need to prove premeditation in order to satisfy the mens rea requirement. Be that as it may, if one concludes that the ICC Statute reflects customary international law,378 at least at the time of the Rome Conference, then it is clear that premeditation is not a mens rea requirement for murder.

2. Extermination The ad hoc Tribunals interpret extermination as ”acts committed with the intention of bringing about the death of a large number of victims either directly, such as by killing the victim with a firearm, or less directly, by creating conditions provoking the victim’s death”.379 The Special Court endorsed this interpretation and defined extermination as “the intentional mass killing or destruction of a part of a population as part of a widespread or systematic attack upon a civilian population.”380 Extermination contains an element of mass destruction which requires that the act be “collective in nature rather than directed towards singled out individuals”.381 Extermination distinguishes itself from genocide in that, contrary to the latter, there is no discriminatory intent requirement for extermination.382 In the same light extermination distinguishes itself from murder in that by its very nature it is directed against a group of individuals i.e. it must be committed on a large scale while the material element of murder may be satisfied by the killing of a single person, and proof that the perpetrator intended the death of that single person alone, albeit as part of a widespread or systematic attack.383 The expression “on a large scale” or

378 Customary international law refers to those obligations that are binding on States irrespective of their being contained in a treaty or not. However, customary international law is not stagnant, it is continuously evolving and what was customary international law a decade ago might not still be law at the present. 379 ICTY, The Prosecutor v. Krstić, Case No. IT-98-33-T, Judgment, 2 August 2001, para. 499; ICTR, The Prosecutor v. Rutaganda, Case No. ICTR-96-3-T, Judgment and Sentence, 6 December 1999, paras. 83 – 84; ICTR, The Prosecutor v. Musema, Case No-ICTR-96-13, Judgment and Sentence, 27 January 2000, para. 218; ICTR, The Prosecutor v. Ntakirutimana et al., Case No. ICTR-96-10 & ICTR-96-17-T, Judgment and Sentence, 21 February 2003, paras. 812 – 813; ICTR, The Prosecutor v. Kayishema and Ruzindana, Case No. ICTR-95-1-T, Judgment, 21 May 1999, para. 144; and ICTR, The Prosecutor v. Niyitegeka, Case No. ICTR96-14-T, Judgment and Sentence, 16 May 2003, para. 450. 380 SCSL, Brima, Kamara, Kanu Trial Judgment, para. 683. See also ICTY, The Prosecutor v. Krstić, Case No. IT-98-33-T, Judgment, 2 August 2001, para. 499. 381 ICTY, The Prosecutor v. Vasiljević, Case No. IT-98-32-T, Judgment, 29 November 2002, para. 227. 382 ICTY, The Prosecutor v. Krstić, Case No. IT-98-33-T, Judgment, 2 August 2001, para. 500. 383 ICTR, The Prosecutor v. Ntakirutimana et al., Cases No. ICTR-97-10-A and ICTR-9714-A, Judgment, 13 December 2004, para. 516; ICTR, The Prosecutor v. Rutaganira, Case

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“large number” as used interchangeably in the jurisprudence of the ad hoc Tribunals does not, however, suggest a numerical minimum.384 The ILC explained the differences between the crimes against humanity of murder and extermination and killings amounting to genocide as follows: “[Murder and extermination] consist of distinct and yet closely related criminal conduct which involves taking the lives of innocent human beings. Extermination is a crime which by its very nature is directed against a group of individuals. In addition, the act used to carry out the offence of extermination involves an element of mass destruction which is not required for murder. In this regard, extermination is closely related to the crime of genocide in that both crimes are directed against a larg number of victims. However, the crime of extermination would apply to situations that differ from those covered by the crime of genocide. Extermination covers situations in which a group of individuals who do not share any common characteristics are killed. It also applies to situations in which some members of a group are killed while others are spared.”385

The issue whether it suffices for the perpetrator to kill one individual or a limited number of individuals in order to be found guilty of extermination is highly controversial. While some caselaw holds that ‘responsibility for one or for a limited number of killings is insufficient’386 other jurisprudence and legal documents are of the opposite view i.e. a single killing would suffice provided the knowledge of the context of the mass killing.387 The Special Court confirmed the existing jurisprudence of the ICTY Appeals Chamber by reaffirming that a perpetrator may be found guilty of extermination if he kills one individual provided that the killing of this one individual is part of a mass killing event.388 Although most cases from WW II employed the term ‘extermination’ to address thousands of killings,389 no minimum number of victims is required as long as it is a numerically significant part of any given population.390 No. ICTR-95-1-C, Judgment and Sentence, 14 March 2005, para. 49; ICTR, The Prosecutor v. Zigiranyirazo, Case No. ICTR-01-7, Judgment, 18 December 2008, para. 431. 384 ICTR, The Prosecutor v. Kayishema and Ruzindana, Case No. ICTR-95-1-T, Judgment, 21 May 1999, para. 145; ICTR, The Prosecutor v. Baglishema, Case No. ICTR-95-1A-T, Judgment, 7 June 2001, para. 87; ICTR, The Prosecutor v. Kajelijeli, Case No. ICTR-98-44A, Judgment, 1 December 2003, para. 891; ICTR, The Prosecutor v. Kamuhanda, Case No. ICTR-99-54, Judgment, 22 January 2004, para. 692. 385 Comment on article 18 of the 1996 ILC Draft Code, p. 97. 386 ICTY, The Prosecutor v. Vasiljević, Case No. IT-98-32-T, Judgment, 29 November 2002, para. 227. 387 ICTY, The Prosecutor v. Stakić, Case No. IT-97-24-A, Appeal Judgment, 22 March 2006, paras. 260 – 261. See also ICC Elements of Crimes, Article 7(1)(b)-1. 388 ICTR, The Prosecutor v. Kayishema and Ruzindana, Case No. ICTR-95-1-T, Judgment, 21 May 1999, para. 147; SCSL, The Prosecutor v. Brima, Kamara and Kanu, Case No. SCSL-04-16-T, Judgment, 20 June 2007, para. 683. 389 ICTY, The Prosecutor v. Vasiljević, Case No. IT-98-32-T, Judgment, 29 November 2002, footnote 587, wherein the Trial Chamber states that “in one case, the court used the expression ‘extermination’ when referring to the killing of 733 civilians (United States v. Ohlen-

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Thus the numerical element is one that has to be decided on a case-by-case basis. This is logical since the murder of 10 people within a civilian population of over a million would not necessarily amount to extermination, whereas the same number of victims within a population of less than 30 could be seen as extermination. The ICTR in the Akayesu case defined the following elements as essential elements of extermination: “(1) the accused or his subordinate participated in the killing of certain named or described persons; (2) the act or omission was unlawful and intentional; (3) the unlawful act or omission must be part of a widespread or systematic attack; (4) the attack must be against the civilian population; (5) the attack must be on discriminatory grounds, namely: national, political, ethnic, racial, or religious grounds.”391

The AFRC Trial Chamber adopted the following to be essential for the establishment of the crime of extermination: “(1) the perpetrator intentionally caused the death or destruction of one or more persons by any means including the infliction of conditions of life calculated to bring about the destruction of a numerically significant part of a population; and (2) the killing or destruction constituted part of a mass killing of members of a civilian population.”392

As regards the actus reus of extermination, although no minimum number of victims is required, these victims should reflect a significant part of the population in question.393 Moreover, it must occur within a context of mass killing.394 With regard to the mens rea, the jurisprudence of the ad hoc Tribunals, as well as the Special Court is consistent. It must be established that the perpetrator intended either to kill on a large scale or to systematically subject a large number of individudorf and others [‘Einsatzgruppen Case’], IV Trials of War Criminals before the Nuremberg Military Tribunal under Control Council Law No. 10, 421). The Trial Chamber is not aware of cases which, prior to 1992, used the phrase ‘extermination’ to describe the killing of less than 733 persons. The Trial Chamber does not suggest, however, that a lower number of victims would disqualify that act as ‘extermination’ as a crime against humanity, nor does it suggest that such a threshold must necessarily be met.” 390 SCSL, Brima, Kamara, Kanu Trial Judgment, para. 686; ICTY, The Prosecutor v. Brđanin¸Case No. IT-99-36, Judgment, 1 September 2004, para 465, being satisfied that the killing of 1669 Bosnian Muslims fulfils the massiveness requirement of ‘extermination’; ICTY, The Prosecutor v. Stakić, Case No. IT-97-24-T, Judgment, 31 July 2003, paras. 654, 655, finding that the killing of more than 1500 individuals also fulfil the element of massiveness. 391 ICTR, Akayesu Trial Judgment, para. 592. See also ICTR, The Prosecutor v. Musema, Case No-ICTR-96-13, Judgment and Sentence, 27 January 2000, para. 218; ICTR, The Prosecutor v. Rutaganda, Case No. ICTR-96-3-T, Judgment and Sentence, 6 December 1999, paras. 83 – 84 for same elements. 392 SCSL, Brima, Kamara, Kanu Trial Judgment, para. 684. 393 Ibid., para. 686. 394 Cf. Robert Cryer / Hakan Friman / Darryl Robinson / Elizabeth Wilmshurst: An Introduction to International Criminal Law and Procedure, 2nd edn., Cambridge University Press, Cambridge, 2010, pp. 246 – 247.

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als to living conditions, which would in the most likely event result in their death.395 The Special Court application of the existing jurisprudence of the ad hoc Tribunals consolidates the law and contributes to affirming its certainty.

3. Enslavement The prohibition against slavery in situations of armed conflict has been recognized in the jurisprudence of international tribunals as “an inalienable, non-derogable and fundamental right, one of the core rules of general customary and conventional international law.”396 The crime of enslavement is prohibited in several international legal instruments.397 It should be noted that the UN General Assembly has also firmly condemned this repulsive act of slavery.398 With regard to the weight to be given to UN General Assembly resolutions, the ICJ in its opinion on the Legality of the Threat or Use of Nuclear Weapons held that: “[e]ven if [General Assembly Resolutions] are not binding, [they] may sometimes have normative value. They can, in certain circumstances, provide evidence important for establishing the existence of a rule or the emergence of an opinio juris. To establish whether this is true of a given General Assembly Resolution, it is necessary to look at its content and the conditions of its adoption; it is also necessary to see whether an opinio juris exists as to its normative character.”399

395 ICTR, The Prosecutor v. Ntakirutimana et al., Cases No. ICTR-97-10-A and ICTR-9714-A, Judgment, 13 December 2004, para. 522; ICTY, The Prosecutor v. Stakić, Case No. IT97-24-T, Judgment, 31 July 2003, para. 260; SCSL,The Prosecutor v. Brima, Kamara and Kanu, Case No. SCSL-04-16-T, Judgment, 20 June 2007, para. 687. 396 ICTY, Krnojelac Trial Judgment, para. 353; SCSL, Sesay, Kallon, Gbao Trial Judgment, para. 196. 397 Cf. Article 4(2)(f) of AP II that prohibits ‘slavery’ and ‘slave trade’ in all their forms. See also Article 8(1) of the International Covenant on Civil and Political Rights, adopted and opened for signature, ratification and accession by General Assembly Resolution 2200A(XXI) of 16 December 1966, entered into force on 21 October 1986 (hereinafter ‘ICCPR’): “No one shall be held in slavery; slavery and the slave trade in all their forms shall be prohibited. (2) No one shall be held in servitude. (3) No one shall be required to perform forced or compulsory labour”; Article 5 of the African Charter on Human and Peoples Rights, adopted on 27 June 1981, entered into force on 21 October 1986: “Every Individual shall have the right to the respect of the dignity inherent in a human being and to the recognition of his legal status. All forms of exploitation and degradation of man particularly […] slavery, slave trade […] shall be prohibited.” 398 See Article 4 of the Universal Declaration of Human Rights, adopted and proclaimed by UN General Assembly Resolution 217 (A)(III) of 10 December 1948 (hereinafter ‘UDHR’): “No one shall be held in slavery or servitude; servitude and the slave trade shall be prohibited in all their forms.” 399 ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, ICJ Reports 1996, para. 70.

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Thus, the crime against humanity of enslavement violates both treaty and custom based international humanitarian law. Article 1(1) of the 1926 Slavery Convention defines slavery as ‘the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised’.400 This definition is further developed in the ICC Statute as ‘the exercise of any or all of the powers attaching to the right of ownership over a person and includes the exercise of such power in the course of trafficking in persons, in particular women and children’.401 The elements of the crime against humanity of enslavement as applied by the ICC are: “(i) The accused exercised any or all of the powers attaching to the right of ownership over one or more persons, such as by purchasing, selling, lending or bartering such a person or persons, or by imposing on them a similar deprivation of liberty; (ii) The conduct was committed as part of a widespread or systematic attack directed against a civilian population; and (iii) The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack against a civilian population.”402

An analysis of the Special Court jurisprudence thus far shows that enslavement was addressed in the context of abductions and forced labour. In the AFRC and RUF cases, the Accused were charged – and ultimately convicted – of being responsible for widespread abductions of civilians and use of civilians as forced labour in Kenema District, Kono District, Koinadugu District, Bombali District, Kailahun District, Freetown and the Western Area and Port Loko District in different periods.403 The AFRC Trial Chamber considered the crime of sexual slavery as an outrage upon personal dignity. The Trial Chamber in this case regrettably does not explain why it so decided but it can be concluded that this was just a mere exercise of Trial Chamber discretion without any meaningful legal implications. However, irrespective of the reasons behind this Trial Chamber approach, it should be noted that this is inconsistent with the developments of sexual crimes in 400 Cf. Slavery Convention, signed at Geneva on 25 September 1926, entry into force on 9 March 1927, available at: http: // www2.ohchr.org / english / law / slavery.htm. Article 2(b) of the 1926 Slavery Convention states that: “The High Contracting Parties undertake […], so far as they have not already taken the necessary steps to bring about, progressively and as soon as possible, the complete abolition of slavery in all its forms”; see also Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery (“Supplementary Convention”), 7 September 1956 (entry into force on 30 April 1957). Article 6(1) of the Supplementary Convention states that: “The act of enslaving another person or inducing another person to give himself or a person dependent upon him into slavery, or of attempting these acts, or being accessory thereto, or being a party to a conspiracy to accomplish any such acts, shall be a criminal offence under the laws of the State parties to this convention and persons convicted thereof shall be liable to punishment.” 401 Article 7(2)(c), ICC Statute. 402 Cf. ICC Elements of Crimes, ICC-ASP / 1 / 3, p. 108, Article 7(2)(c). 403 SCSL, Sesay, Kallon, Gbao Trial Judgment, para. 195; The Prosecutor v. Brima, Kamara and Kanu, Case No. SCSL-04-16-T, Judgment, 20 June 2007, paras. 741 – 749.

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international humanitarian law. Bearing in mind that the ICC Statute is reflective of the current practice in international criminal law, the fact that the Preparatroy Committee recognized sexual crimes as an independent offence is of vital significance.404 In this respect, Ambos points out that while the early negotiations for the establishment of the ICC Statute, considered sexual crimes in armed conflict to be subsumed under outrages upon personal dignity, the Preparatory Committee later recognized the independent nature of the offence.405 The factual situation of the conflict in Sierra Leone was characterized predominantly by the conscription or enlisting of children under the age of 15 into the armed forces and armed groups and / or using them to participate actively in hostilities. Other characteristics were the sexual slavery and sexual violence that many women were subjected to, as well as large scale abductions of civilians and their use as forced labourers in diamond mines.406 The Special Court’s case law on enslavement is however scarce and largely draws on ICTY case law. Enslavement as a crime against humanity was only discussed in the RUF case. In applying the ICTY jurisprudence in the Krnojelac case, the Special Court held that the elements of the crime of enslavement are: “(i) [t]he Accused exercised any or all of the powers attaching to the right of ownership over a person, such as by purchasing, selling, lending or bartering such person or persons, or by imposing on them a similar deprivation of liberty; and (ii) The Accused intended to exercise the act of enslavement or acted in the reasonable knowledge that this was likely to occur.”407

In the same light, the Special Court adopted the indicia of enslavement identified by the ICTY in the Kunarac et al. case namely: “control of someone’s movement, control of physical environment, psychological control, measures taken to prevent or deter escape, force, threat of force or coercion, duration, assertion of exclusivity, subjection to cruel treatment and abuse, control of sexuality and forced labour.”408 These indicia are reflected in the footnote to the ICC Elements of Crimes of the crime against humanity of slavery: “It is understood that such deprivation of liberty may, in some circumstances, include exacting forced labour or otherwise reducing a person to a servile status as defined in the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery of 1956. It is also understood that the conduct described in this element includes trafficking in persons, in particular women and children.”409 404 See Kai Ambos, Sexuelle Gewalt in bewaffneten Konflikten und Völkerstrafrecht, supra note 306, pp. 287 – 299. 405 Ibid., p. 287. 406 Cf. Report of the Secretary-General, 4 October 2000, supra note 15, paras. 25 – 26. 407 Ibid., para. 196; SCSL, Brima, Kamara, Kanu Trial Judgment, paras. 739 – 749, 1837, 1976 and 2098. 408 SCSL, Brima, Kamara, Kanu Trial Judgment, para. 199, citing ICTY, Kunarac et al. Appeal Judgment, para. 543.

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Thus, the actus reus of the crime of enslavement is satisfied once it has been established that the accused exercised any or all of the powers attaching to the right of ownership over a person or persons. On the other hand the mens rea requirement is met once it has been established that the perpetrator intended to exercise such powers. The ICTY Appeals Chamber further stated that the lack of consent of the victim, although relevant from an evidentiary point of view, is not an element of enslavement to be proven by the Prosecution.410 The RUF Trial Judgment in discussing the irrelevance of the lack of consent of the victim quoted the Pohl case on the nature of enslavement: “Slavery may exist even without torture. Slaves may be well fed, well clothed, and comfortably housed, but they are still slaves if without lawful process they are deprived of their freedom by forceful restraint. We might eliminate all proof of ill-treatment, overlook the starvation, beatings, and other barbarous acts, but the admitted fact of slavery – compulsory uncompensated labour – would still remain. There is no such thing as benevolent slavery. Involuntary servitude, even if tempered by humane treatment, is still slavery.”411

The Special Court jurisprudence consolidates the ICTY case law and goes even further to state that: “As the absence of consent [of the victim] is not an element of the offence [of enslavement], the knowledge on the part of the Accused of this absence of consent is not an element of the offence either.”412 It is even more questionable whether there could be a valid consent on the part of the victim. In the Krnojelac case, the ICTY Appeals Chamber held that severly overcrowded conditions, insufficient food, locked doors, frequent thrashings, psychological abuse and harsh living conditions rendered it impossible for detainees to consent to their work and hence their labour amounted to forced labour.413 Hence, although there is no requirement to prove the absence of consent on the part of the victim, such consent cannot be deemed to be valid when viewed within the circumstances under which it was acquired. This Special Court jusrisprudence can – at best – be said to be useful in consolidating the existing jurisprudence on this issue and thereby achieving the certainty of the law. However, it must be borne in mind that it does not suffice to have one of the indicia cited above, to conclude that the crime against humanity of enslavement has been established. In addition to these indicia the other elements of enslavement also need to be established. The establishment of the crime of enslavement must be

ICC, Elements of Crimes, Article 7(1)(c), footnote. ICTY, Kunarac et al. Appeal Judgment, para. 120. 411 SCSL, Sesay, Kallon, Gbao Trial Judgment, para. 203, citing US v. Oswald Pohl and Others, Judgment of 3 November 1947, reprinted in Trials of War Criminals Before the Nuremberg Military Tribunals under Control Council No. 10, Vol. 5 (1997), pp. 958 – 970. 412 SCSL, Sesay, Kallon, Gbao Trial Judgment, para. 201. 413 ICTY, Krnojelac Appeal Judgment, paras. 193 – 195. 409 410

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made based on factual circumstances especially since enslavement can exist in a subtle form. Further, considering that in order to establish the crime against humanity of enslavement – as seen from the Special Court jurisprudence – it is necessary to prove the above discussed actus reus and mens rea requirements of the offence as well as the chapeau elements of crimes against humanity, it is clear that the elements of the crime of enslavement as adopted by the ICC Elements of Crime, the ICTY case law and the Special Court’s case law are identical. The ICTR because of the factual situation of the conflict in Rwanda did not have to address this issue and thus does not have any case law on it. Having said that, the author finds this existing jurisprudence subject to criticism. The lack of consent on the part of the victim should be taken into account and given appropriate weight in order to for example be able to differentiate between compulsory labour and regular working relationships such as labour leasing. It would be misleading to conclude that every situation in which someone exercises some sort of ownership over another amounts automatically to enslavement. The relationship that exists between labour leasing companies and their employees is such that the former exercise a certain ownership over the latter and receive money in exchange for the services of the latter with third parties.

4. Deportation The crime of deportation however heinous it may be is not a new phenomenon and has been applied in several conflicts and contexts in the past.414 The ICC Statute defines deportation and forcible transfer as ‘forced displacement of the persons concerned by expulsion or other coercive acts from the area in which they are lawfully present, without grounds permitted under international law’.415 The elements of deportation as a crime against humanity as per the ICC Elements of Crimes are: “1. The perpetrator deported or forcibly transferred without grounds permitted under international law, one or more persons to another State or location, by expulsion or other coercive acts. 2. Such person or persons were lawfully present in the area from which they were so deported or transferred. 3. The perpetrator was aware of the factual circumstances that established the lawfulness of such presence. 4. The conduct was committed as part of a widespread or systematic attack directed against a civilian population.

414 415

(d).

Cf. Kai Ambos, Internationales Strafrecht, supra note 22, § 7, mn. 205. Rome Statute of the International Criminal Court, UN Doc.A / CONF.183 / 9, art. 7(2)

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5. The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population.”416

Smith, Gambette and Longley point out that the ICC Statute mirrors the ICTY finding that ‘forced displacement’ – charged in the Krnojelac case as persecution – is a stand-alone crime and is not a lesser, included offence of deportation.417 However, an analysis of the ICC Statute and its Elements of Crimes shows that although the ICC Statute states ‘deportation or forcible transfer’, it does not make a distinction in the elements of the crime that need to be proven in order to establish the crime(s). Contrary to the ICC Elements of Crimes, the ICTY jurisprudence distinguishes between forcible transfer and deportation. According to the ICTY jurisprudence, while the crime against humanity of deportation refers to the displacement of people across national borders, forcible transfer simply refers to the forced movement of people and could occur within the confines of national borders.418 The ICTY Appeals Chamber in the Stakic case held that: “[it] is of the view that the actus reus of deportation is the forced displacement of persons by expulsion or other forms of coercion from the area in which they are lawfully present, across a de jure state border or, in certain circumstances, a de facto border, without grounds permitted under international law”.419 With regard to forcible transfer, the Stakic Appeals Chamber held that: “[f]orcible transfer has been defined in the jurisprudence of the Tribunal as the forcible displacement of persons which may take place within national boundaries”.420 Thus, whether or not the forcibly displaced persons were forced accross a border – be it a de jure or a de facto border – is a material element which needs to be proven in order fully establish either crime. As regards the perpetrator’s knowledge, it is immaterial whether (s)he intended the displacement to be permanent. Hence, a later return of the victims shall be irrelevant.421 Considering that deportation was not a common feature of the the conflict in Sierra Leone, the Special Court was not called upon to address this issue and thus has made no contribution in relation to this crime. Cf. ICC Elements of Crimes, Article 7(1)(d). Conflict Mapping in Sierra Leone, supra note 51, p. 65, citing ICTY, The Prosecutor v. Krnojelac, Case No. IT-97-25-A, Judgment, 17 September 2003, para. 218. 418 ICTY, Krnojelac Trial Judgment, para. 474. In the Stakić case (ICTY, The Prosecutor v. Stakić, Case No. IT-97-24-T, Judgment, 31 July 2003, para. 679), it was held that the crime of deportation encompassed forced population displacements both accross internationally recognised borders and de facto borders. 419 ICTY, The Prosecutor v. Stakić, Case No. IT-97-24-A, Judgment, 22 March 2006, para. 278. 420 Ibid., para. 317, citing ICTY, Krnojelac Trial Judgment, para. 474; ICTY, The Prosecutor v. Krstić, Case No. IT-98-33-T, Judgment, 2 August 2001, para. 521. See also Stakić Trial Judgment, in which the Trial Chamber found that forcible transfer relates to displacement within a State (para. 671). 421 ICTY, The Prosecutor v. Stakić, Case No. IT-97-24-A, Judgment, 22 March 2006, paras. 278, 304 et seq.; ICTY, The Prosecutor v. Popovic et al., Case No. IT-05-88-T, Judgment, 10 June 2010, para. 905. 416 417

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5. Imprisonment Imprisonment refers to an act or omission that results in arbitrary deprivation of physical liberty, or that is reasonably likely to effect that result. In order for such an act or omission to amount to the crime against humanity of imprisonment, there must be no legal justification for the detention.422 Similarly, one talks of the crime against humanity of imprisonment when the victim is deprived of his / her liberty solely because (s)he was exercising his / her basic rights.423 The existing jurisprudence of the crime against humanity of imprisonment is mostly from the ICTY.424 This is so because the ICTR indictments only sporadically contained the act of imprisonment reasons being that the conflict was characterized by acts such as murder and sexual violence rather than imprisonment.425 In the Krnojelac case, it was held that elements of the crime of imprisonment are not limited to those of the crime of unlawful confinement but extend to any form of arbitrary physical deprivation of liberty.426 The ICC Elements of Crimes (Article 7[1] [e], relating to imprisonment and Article 8[2][a][vii]-2 relating to unlawful confinement) reflect this distinction between imprisonment and unlawful confinement. The elements of imprisonment as per the ICC are: “1. The perpetrator imprisoned one or more persons or otherwise severely deprived one or more persons of physical liberty. 2. The gravity of the conduct was such that it was in violation of fundamental rules of international law. 3. The perpetrator was aware of the factual circumstances that established the gravity of the conduct. 4. The conduct was committed as part of a widespread or systematic attack directed against a civilian population. 5. The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population.”427

In the Krnojelac case, it was held that one of the key elements of the crime against humanity of imprisonment is that there should be no legal basis for the deprivation of liberty.428 An act could also initially be based on legality but ultimately 422 ICTY, Krnojelac Trial Judgment, para. 115; ICTY, Kordić and Čerkez Trial Judgment, paras. 302 – 303. 423 Cf. Report on the Working Group on Arbitrary Detention, UN Doc. E / CN.4 / 1998 / 44, Annex I, para. 8. 424 ICTY, Kordić and Čerkez Trial Judgment, paras. 302 – 303; ICTY, Krnojelac Trial Judgment, paras. 114, 119 – 122. 425 Cf. Larissa J. van den Herik, The Contribution of the Rwanda Tribunal to the Development of International Law, Martinus Nijhoff Publishers, Amsterdam, 2005, p. 188. 426 ICTY, Krnojelac Trial Judgment, para. 112. 427 ICC Elements of Crimes, Article 7(1)(e). 428 ICTY, Krnojelac Trial Judgment, para. 115.

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become arbitrary “if the deprivation is being administered under serious disregard of fundamental procedural rights of the person deprived of his or her liberty as provided for under international law”.429 Similar to the crime of deportation, although imprisonment was included in Article 2(e) of the SCSL Statute, the Special Court was not called upon to adjudicate on this crime. This could be justified by the fact that imprisonment was not a common feature of the conflict and no one was indicted for this crime.

6. Torture The prohibition of torture is both an established rule of customary international law and a jus cogens norm.430 This prohibition has as well been reaffirmed in domestic jurisdictions. For example in the case of United States v. Charles McArthur Emmanuel (a.k.a. “Chuckie Taylor”), it was held that: “[T]he prohibition against official torture has attained the status of a jus cogens norm, not merely the status of customary international law [. . .]. It is beyond peradventure that torture and acts that constitute cruel, inhuman or degrading punishment, acts prohibited by jus cogens, are similarly abhorred by the law of nations.”431

Article 1 of the 1984 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“1984 Torture Convention”)432, defines torture as: “Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person, information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.”

Ibid., footnote 347. Cf. Article 5 of the UDHR; Article 7 of the ICCPR; Article 5 of the African Charter on Human and Peoples’ Rights; Article 5 of the American Convention on Human Rights; Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. See ICTY, Prosecutor v. Furundzija, Case No. IT-95-17 / 1-T, Judgment, 10 December 1998, para. 146. 431 United States v. Charles McArthur Emmanuel (a.k.a.“Chuckie Taylor”), Case No. 0620263, Order On Defendant’s Motion To Dismiss The Indictment at 17, Belfast (S.D. Fla., filed July 5, 2007) (No. 148), 17. 432 The 1984 Torture Convention entered into force on 26 June 1987 (Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted by United Nations General Assembly Resolution 39 / 46, adopted on 10 December 1984, entered into force 26 June 1987). 429 430

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Torture can be committed both as a war crime and as a crime against humanity. According to the ICC Elements of Crimes the following elements need to be satisfied in order to establish the crime against humanity of torture: “1. The perpetrator inflicted severe physical or mental pain or suffering upon one or more persons. 2. Such person or persons were in the custody or under the control of the perpetrator. 3. Such pain or suffering did not arise only from, and was not inherent in or incidental to, lawful sanctions. 4. The conduct was committed as part of a widespread or systematic attack directed against a civilian population. 5. The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population.”433

An analysis of the jurisprudence of the ad hoc Tribunals shows that the essential element of the crime against humanity of torture is “the infliction, by act or omission, of severe pain and suffering, whether physical or mental”.434 The jurisprudence of ad hoc Tribunals in defining torture adopts the definition of the 1984 Torture Convention. However, they do not apply all the elements listed in the definition. While the 1984 Torture Convention requires that the torture be inflicted “by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity”, the ad hoc Tribunals,435 as well as the ICC436 consider that this element is only applicable to the Convention and is not reflective of customary international law.437 The justification for this distinction is the fact that international criminal law focuses on the nature of the act committed rather than on the status of the person alleged to have committed the crime.438 The US law criminalizing torture abroad (the “Extraterritorial Torture Statute”), defines torture as: “[A]n act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control”.439

ICC Elements of Crimes, Article 7(1)(f). ICTY, Kunarac et al. Appeal Judgment, para. 142; ICTY, The Prosecutor v. Delalić et al., Case No IT-96-21-T, Judgment, 16 November 1998, paras. 461 et seq. See also Supreme Court of Israel, Public Committee against Torture in Israel et al. v. Government of Israel et al., al. [2006] HCJ 769 / 02. 435 ICTY, Kunarac et al. Appeal Judgment, paras. 142, 144 – 148. 436 ICC Elements of Crimes, Article 7(1)(f). 437 See also Conflict Mapping in Sierra Leone, supra note 51, p. 67. 438 See ICTY, Kunarac et al. Appeal Judgment, paras. 142 – 148. 439 Cf. U.S.C., Title 18, 2340, 20 November 1994. The US House of Representatives and the Senate passed the Extraterritorial Torture Statute as section 506 of the Foreign Relations Authorization Act, Fiscal Years 1994 and 1995. 433 434

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An analysis of the ICC Elements of Crimes, points out that there is a divergence between the ad hoc Tribunals and the ICC in relation to whether or not a specific purpose is required in establishing the crime against humanity of torture. On the one hand, the ad hoc Tribunals have held that in order to establish the crime against humanity of torture, one of the four following purposes needs to be present: (1) obtaining information or a confession from the victim or a third party; (2) punishing the victim or a third party; (3) intimidating or coercing the victim or a third party; or (4) for any reason based on discrimination of any kind, although the conduct need not have been committed solely for one of the prohibited purposes.440 It should be noted that the jurisprudence has expressly stated that the list of prohibited purposes is not exhaustive.441 In this regard, Ken Roberts, points out that while in practice the prohibited purposes referred to have been the ones enumerated in the definition above, the existence of a non-exhaustive list, prevents the creation of opportunities for the evasion of of the letter of the prohibition.442 On the other hand, the elements of the crime of torture as per Article 7(1)(f) ICC Statute, clearly state that “[i]t is understood [that] no specific purpose need[s] to be proved for this crime”.443 The Pre-Trial Chamber in the Bemba case re-affirmed this view by stating that “[t]he Chamber notes that under the Statute, the definition of torture as a crime against humanity, unlike the definition of torture as a war crime, does not require the additional element of a specific purpose”.444 Hence, it is clear that it was a deliberate act to omit the purpose requirement. As pointed out by Ambos, torture does not require the establishment of a specific purpose other than the mere intent to inflict pain on the victim(s) on the part of the perpetrator(s).445 He points out to the recent finding of the German Bundesgerichtshof, which held that torture involves the infliction of severe physical or mental pain and does not require any further purpose apart from a general intent.446 This is as well the view of leading scholars.447 Generally it can be said that customary international law – has 440 ICTY, Krnojelac Trial Judgment, para. 185; ICTY, Kunarac et al. Appeal Judgment, para. 155; ICTR Akayesu Trial Judgment, para. 594. 441 ICTY, The Prosecutor v. Delalić, Case No IT-96-21-T, Judgment, 16 November 1998, paras. 470, 472; ICTY, The Prosecutor v. Brđanin, Case No. IT-99-36, Judgment, 1 September 2004, paras. 486 – 487; ICTY, Kunarac et al. Appeal Judgment, para. 155. 442 Cf. Ken Roberts, The Contribution of the ICTY to the Grave Breaches Regime, 7 JICJ 4, 2009, p. 756. 443 ICC Elements of Crimes, footnote of Article 7(1)(f). 444 ICC, The Prosecutor v. Jean-Pierre Bemba Gombo, Case No. ICC-01 / 05-01 / 08, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, 15 June 2009, para. 195. 445 Cf. Kai Ambos, Internationales Strafrecht, supra note 22, § 7, mn. 208 (BGH 3 StR 372 / 00 – Urteil v. 21 Februar 2001 [OLG Düsseldorf] available at: http: //www.hrr-strafrecht. de/hrr/3/00/3-372-00.php3?referer=db). 446 Ibid. 447 See e.g. Christopher Hall, Commentary on Art. 7, mn. 109, in: Otto Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court – Observers’ Notes, Ar-

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evolved and – does not require the existence of a particular purpose in order to establish the crime of torture as a crime against humanity.448 The author adhers to the view that the ICC Statute is reflective of the current stand of international criminal law and hence finds that the purpose of criminalizing the act of torture is better served by not requiring a particular purpose on the part of the perpetrator. The Special Court surprisingly did not address this crime per se although it recognized that some children who were identified as RUF members were regarded as being “responsible for killings and torture”.449 This is regrettable for the Special Court could have contributed to the development of international humanitarian law, particulalry with regard to the crime of torture.

7. Rape, Sexual Slavery, Enforced Prostitution, Forced Pregnancy and any other Form of Sexual Violence Gender-based crimes committed during armed conflicts such as rape and other forms of sexual violence may be prosecuted as war crimes and as crimes against humanity when committed as part of a widespread or systematic attack against a civilian population.450 Article 4(2)(e) of AP II expressly prohibits sexual violence.451 It should be noted that sexual violence can be committed against persons of either sex and of any age. The importance given to gender based crimes by the Special Court cannot be over-emphasized. Contrary to the Statutes of the ad hoc Tribunals that provide only – in this context is ‘only’ to be interpreted as an overstatement and in no way an attempt to diminish the gravity of the crime of rape – for the prosecution of the crime of rape, the SCSL Statute is more extensive and includes the crimes against humanity of rape, sexual slavery, enforced prostitution, forced pregnancy and any other form of sexual violence.452 In the same light, it was recommended that due to the “nature of the crimes and the particular sensitivities of girls young women and children victims of rape, sexual assault, abduction

ticle by Article, 2nd edn. C.H. Beck, Hart and Nomos, München, 2008; Robert Cryer, General principles of liability in International Criminal Law, in: McGoldwick / Rowe / Donnelly (eds.), The permanent International Criminal Court: Legal policy issues, 2004, pp. 256 et seq. 448 However, in order to establish the crime of torture as a war crime there is the need to satisfy the purpose requirement (ICC Elements of Crimes, Article 8[2][a][ii]-1, para. 2). 449 SCSL, Sesay, Kallon, Gbao Trial Judgment, para. 1668. 450 Conflict Mapping in Sierra Leone, supra note 51, p. 69. 451 Article 4(2)(e) reads: “[W]ithout prejudice to the generality of the foregoing, the following acts against the persons referred to in paragraph I are and shall remain prohibited at any time and in any place whatsoever: […] (e) outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form or indecent assault […].” 452 Cf. SCSL Statute, Article 2(g); ICTY Statute, Article 5(g) and ICTR Statute, Article 3(g).

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and slavery of all kinds”, an effort should be made to recruit staff with experience in this fields.453

a) Rape The crime of rape committed in the course of an armed conflict was first treated as a crime against humanity under international criminal law by the ICTY and ICTR.454 It should nevertheless be noted that rape formed part of the bases for the von Hagenbach trial convictions, which are regarded as having played an important role in the process of international criminalization.455 However, some authors dispute the fact that the ad hoc Tribunals were the first to regard rape as a crime against humanity under international criminal law. Patricia Viseur Sellers argues that: “[t]he jurisprudence of sexual violence in the Nuremberg and Tokyo Trials has not been thoroughly distilled in international law. It is a common error to assume that evidence of sexual violence was not admitted at Nuremberg and Tokyo, and even more common interpretation to assume that if such evidence were admitted it was immaterial to the final judgment. A better interpretation […] is that both [Nuremberg and Tokyo] decisions brought into force maturing provisions and doctrines of humanitarian law to redress all violations raised, including crimes indicated by the limited but probative submissions of sexual abuse.”456

Be that as it may, regardless of whether or not the ad hoc Tribunals, were the first to regard rape as a crime against humanity, the fact is that rape was prohibited under international humanitarian law,457 and the ad hoc Tribunals defined the crime of rape in order to be able to classify it as falling under their jurisdiction. Rape is also prohibited as a crime against humanity in several statutes including Allied Control Council Law No. 10,458 ICTY Statute,459 ICTR Statute,460 ICC Statute,461 SCSL Cf. SCSL Statute, Article 15(4). Andresia Vaz, La Spécificité du Crime de Viol, in: Emmanuel Decaux / Adama Dieng / Malick Sow (eds.), From Human Rights to International Criminal Law, Studies in Honour of an African Jurist, the Late Judge Laity Kama, Martinus Nijhoff, Leiden, 2007, p. 267. 455 See Georg Schwarzenberger, International Law as Applied by International Courts and Tribunals, 2, The Law of Armed Conflict, Stevens. London, 1968, pp. 462 – 466. 456 Cf. Patricia Viseur Sellers, The Context of Sexual Violence: Sexual Violence as Violations of International Humanitarian Law, in: Gabrielle Kirk McDonald / Olivia Swaak-Goldman (eds.), Substantive and Procedural Aspects of International Criminal Law, The Experience of International and National Courts, Vol. I, Commentary, Kluwer Law International, The Hague, 2000, p. 291. 457 The Lieber Code of 1863 contained rape as a serious war crime that merited the death penalty in Articles 44 and 47. (General Orders No. 100, U.S. Department of Army, Instructions for the Government of Armies of the United States in the Field, 24 April 1863 [Lieber Code] Reprinted in the Laws of Armed Conflict, Fourth Edition, Edited by Dietrich Schindler / Jiri Toman, Martinus Nijhoff Publishers, at p. 3.). See also SCSL, Sesay, Kallon, Gbao Trial Judgment 2 March 2009, para. 144; Article 46, 1907 Hague Convention (IV); Article 27 of Geneva Convention IV, Article 76(1) of AP I and Article (2)(e) of AP II. 453 454

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Statute462 and the ECCC Statute.463 It is a noticeable element of the work of the ad hoc Tribunals as well as the Special Court. The ICTR even went further to consider rape as amounting to genocide. In the Akayesu trial Judgment it was held that “Les viols[…] sont bien constitutifs de génocide, au même titre que d’autres actes […] commis dans l’ intention spécifique de détruire , en toute ou en partie, un groupe spécifique, ciblé en tant que tel.”464

aa) The Characterization of Rape in International Criminal Law Rape and other forms of sexual violence constitute or form part of the crimes of torture, enslavement, sexual slavery and persecution as crimes against humanity.465 The ad hoc Tribunals have addressed this topic at length reasons being that – like in almost all conflicts – rape is a common tool used to intimidate and inflict pain on the enemy. Considering the fact that the ad hoc Tribunals have divergent approaches to this crime, i.e. whether to pursue a contextual approach or to clearly define the elements of the crime of rape, it is of great interest to analyze the Special Court’s jurisprudence on this issue for this would contribute to develop the law in one direction. The ICTR has adopted a contextual framework approach thereby defining rape as “the physical invasion of sexual nature committed under circumstances that are coercive”.466 It abstained from establishing a comprehensive list of the physical acts that constitute rape. The ICTY jurisprudence on the other hand list the elements of the crime of rape by stating that: “[t]he actus reus of the crime of rape in international law is constituted by: the sexual penetration, however slight: (a) of the vagina or anus of the victim by the penis of the perpetrator or any other object used by the perpetrator; or (b) of the mouth of the victim by the penis of the perpetrator; where such sexual penetration occurs without the consent of the victim. Consent for this purpose must be consent given voluntarily, as a result of the victim’s free will, assessed in the context of the surrounding circumstances.”467 458 Punishment of Persons Guilty of War Crimes, Crimes Against Peace and Against Humanity, Allied Control Council Law No. 10, 20 December 1945, Official Gazette of the Control Council for Germany, No. 3, 31 January 1946, Art. II.1(c) [Control Council Law No. 10]. 459 Article 5(g), ICTY Statute. 460 Article 3(g), ICTR Statute. 461 Article 7(1)(g), ICC Statute. 462 Article 2(g), SCSL Statute. 463 Article 5, ECCC Statute. 464 ICTR, Akayesu Trial Judgment, para. 731. 465 Cf. Review of the Sexual Violence Elements of the Judgments of the International Criminal Tribunal for the Former Yugoslavia, The International Criminal Tribunal for Rwanda, and the Special Court for Sierra Leone in the Light of Security Council Resolution 1820, United Nations, Department of Peacekeeping Operations, 2010, p. 3. 466 ICTR, Akayesu Trial Judgment, para. 598.

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The ICTY Appeals Chamber held that: “the assertion that nothing short of continuous resistance provides adequate notice to the perpetrator that his attentions are unwanted is wrong on the law and absurd on the facts”.468 While the ICTR approach relies entirely on a loose conceptual framework, it can be said that the ICTY approach is a mixture of both, i.e. for the actus reus of rape it list the elements that need to be satisfied and for the mens rea, it states that the determination whether there was consent must be made depending on the surrounding circumstances. A similar approach is taken by the ICC which also lists the elements of the crime and incorporates aspects of a contextual approach. Although there has been no judgment issued by the ICC thus far, this position can be derived from its Elements of Crimes which define rape as a situation in which: “(1) [t]he perpetrator invaded the body of a person by conduct resulting in penetration, however slight, of any part of the body of the victim or of the perpetrator with a sexual organ, or of the anal or genital opening of the victim with any object or any other part of the body, and (2) The invasion was committed by force, or by threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or another person, or by taking advantage of a coercive environment, or the invasion was committed against a person incapable of giving genuine consent.”469

Further, it considers the following to be the elements of the crime of rape: “(i) The perpetrator invaded the body of a person by conduct resulting in penetration, however slight, of any part of the body of the victim or of the perpetrator with a sexual organ, or of the anal or genital opening of the victim with any object or any other part of the body; (ii) The invasion was committed by force, or by threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or another person, or by taking advantage of a coercive environment, or the invasion was committed against a person incapable of giving genuine consent; (iii) The conduct was committed as part of a widespread or systematic attack directed against a civilian population; and (iv) The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population.”470

It is rather strange and unfortunate that the Special Court although aware of the disparate definitions adopted by the ICTR and the ICTY, did not deem it necessary to first define the crime of rape. Such a definition could have been helpful in providing a definition that best addresses the purpose of international humanitarian law i.e. the protection of innocent lives in armed conflicts. The Special Court in dealing with sexual assault cases established that the constitutive elements of rape are:

467 468 469 470

ICTY, Kunarac et al. Trial Judgment, para. 460. Ibid., para. 128. ICC Elements of Crimes, Article (1)(g)-1. ICC Elements of Crimes, Article 7(1)(g)-1.

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“(i) The Accused invaded the body of a person by conduct resulting in penetration, however slight, of any part of the body of the victim or of the Accused with a sexual organ, or of the anal or genital opening of the victim with any object or any other part of the body; (ii) The invasion was committed by force, or by threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power against such person or another person or by taking advantage of a coercive environment, or the invasion was committed against a person incapable of giving genuine consent; (iii) The Accused intended to effect the sexual penetration or acted in the reasonable knowledge that this was likely to occur; and (iv) The Accused knew or had reason to know that the victim did not consent.”471

An analysis of the elements of the crime of rape as set out by the Special Court jurisprudence and the elements of rape as per the ICC Elements of the Crimes, establishes that the first two elements i.e. the requirement of the invasion of the body of the victim, however slight, and the non-consensual nature of the act, are identical. These two elements which relate to the actus reus of the crime first define the type of invasion – broad enough to be gender neutral in order to recognize that men and women could be victims of rape – and the circumstances which would render the act criminal as well as situations where consent, if any, would be recognized as genuine. An essential element of the crime against humanity of rape is therefore the lack of consent of the victim. Further, it is necessary that, the consent, if any, was given freely and voluntarily and the determination thereof would be done based on the surrounding circumstances.472 With regard to ‘consent’, the RPE of the Special Court set out the following guiding principles: “(i) Consent cannot be inferred by reason of any words or conduct of a victim where force, coercion or taking advantage of a coercive environment undermined the victim’s ability to give voluntary and genuine consent; (ii) Consent cannot be inferred by reason of any words or conduct of a victim where the victim is incapable of giving genuine consent; (iii) Consent cannot be inferred by reason of the silence of or lack of resistance by, a victim to the alleged sexual violence; (iv) Credibility, character or predisposition to sexual availability of a victim or witness cannot be inferred by reason of sexual nature of the prior or subsequent conduct of a victim or witness.”473

It should be noted that ‘consent’ in this context is part of the elements of the crime as against being a defence.474 However, considering that the elements of the

471 472 473

SCSL, Sesay, Kallon, Gbao Trial Judgment, para. 145. ICTY, Kunarac et al. Appeal Judgment, para. 120. Cf. Rule 96, Special Court’s RPE.

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crime aim at protecting the sexual integrity and self-determination of the victim, it is questionable whether there could actually be “genuine consent” in the context of an armed conflict.475 The atmosphere of coercion and violence that prevail during armed conflicts do not militate in favor of a conclusion that there was “genuine consent”.476 The third and fourth elements of the crime of rape as established by the Special Court could be regarded as an essential contribution to the development of international humanitarian law, in particular to the prosecution of the crime of rape. These two elements, which are lacking in the ICC Elements of Crimes, relate solely to the perpetrators intent and this intent should be to sexually penetrate the victim or be aware that it was likely to occur, as well as the fact that the accused was aware of the lack of consent of the victim. This is a more restrictive and higher threshold requirement as compared to the requirements established in Article 7(1)(g)-1 of the ICC Elements of the Crimes. Thus, while the ICC Elements of Crimes lay emphasis on the contextual element and the perpetrators knowledge thereof – “the conduct was committed as part of a widespread or systematic attack directed against a civilian population” and “the perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population” – the Special Court requires that the Accused’s ultimate goal was the sexual penetration.477 It should be noted that there is no contradiction in relation to the requirements laid out by the ICC and the Special Court. What differs is merely the fact that the Special Court’s approach is geared towards the individual act while that of the ICC is geared towards the general act. Therefore – in accordance with Special Court jurisprudence – it is necessary to prove that the Accused knew or intended that his act be part of a widespread or systematic attack directed against a civilian population478 as well as his knowledge visà-vis the penetration of the victim and the lack of consent of the victim. Moreover, it must be borne in mind that the chapeau requirements for crimes against humanity i.e. the fact that the crime was part of a widespread or systematic attack directed against any civilian population, still need to be satisfied.

474 For more on this differentiation, see Kai Ambos, Sexuelle Gewalt in bewaffneten Konflikten und Völkerstrafrecht, supra note 306, p. 290. 475 Cf. Kai Ambos, Sexuelle Gewalt in bewaffneten Konflikten und Völkerstrafrecht, supra note 306, pp. 290 et seq. 476 Ibid. with further references. 477 Cf. SCSL, Sesay, Kallon, Gbao Trial Judgment, para. 145 and ICC Elements of Crimes, Article 7(1)(g)-1. 478 See mental elements for crimes against humanity, supra p. 101.

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b) Sexual Slavery Sexual slavery can also be prosecuted as enslavement as well as an outrage upon personal dignity. The jurisprudence of the Special Court on this crime is ground breaking since the jurisprudence of the ad hoc Tribunals is silent on this crime. Further, the crime of sexual slavery was incorporated for the first time in the statute of an international criminal court as a war crime and a crime against humanity in the ICC Statute.479 Hence, the jurisprudence of the Special Court could serve as guidance to the ICC when it addresses this issue in the cases pending before it. 480 The Elements of Crimes of the ICC comprehensively list the elements of the crime against humanity of sexual slavery as: “(1). The perpetrator exercised any or all of the powers attaching to the right of ownership over one or more persons, such as by purchasing, selling, lending or bartering such a person or persons, or by imposing on them a similar deprivation of liberty. (2). The perpetrator caused such person or persons to engage in one or more acts of a sexual nature. (3). The conduct was committed as part of a widespread or systematic attack directed against a civilian population. (4). The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population.”481

The elements of the crime against humanity of enslavement and that of sexual slavery are similar except for the fact that with regards to the latter crime, there is the need to prove that as a result of the perpetrator’s act(s), the victim engaged in one or more acts of a sexual nature. Therefore, in addition to the so-called chapeau requirements482 and the fact that the perpetrator exercised any or all of the powers attached to the right of ownership over one or more persons, there must be a nexus between the perpetrators acts and the engagement of the victim in one or more acts of a sexual nature. It should be noted that sexual slavery is not a new offence albeit it’s rather recent incorporation in the statute of an international criminal court. For example in the Kunarac et al. case before the ICTY, the Accused in this case were convicted of the offences of enslavement, rape and outrages on personal dignity for having detained women for months and raped them and committed other sexual acts on them.483 Cf. SCSL, Sesay, Kallon, Gbao Trial Judgment, para. 154. In the case of The Prosecutor v. Katanga & Ngudjolo Chui, the accused are charged inter alia with the crime of sexual slavery under Art. 7(1)(g) of the ICC Statute (ICC, The Prosecutor v. Katanga and Ngudjolo, Case No. 01 / 04-01 / 07-717, Pre-Trial Chamber, Decision on the Confirmation of Charges, Public Redacted Version, 30 September 2008). 481 ICC Elements of Crimes, Article 7(1)(g)-2. 482 The chapeau requirements should be interpreted as referring to the crimes against humanity requirements of the act being committed as part of a widespread or systematic attack directed against a civilian population and the perpetrators knowledge thereof. 479 480

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Although, the ICTY Appeals Chamber did not address these crimes as sexual slavery, it held that “it finds that enslavement, even if based on sexual exploitation, is a distinct offence from that of rape.”484 The Special Court in addressing the crime against humanity of sexual slavery stated that this crime is distinct from the crime of rape in two ways: first, the crime of rape requires sexual penetration, whereas sexual slavery requires the exercise of powers attaching to the right of ownership and acts of sexual nature. Secondly, while the crime of rape does not require the right to ownership, in the case of sexual slavery the right to ownership is exercised.485 It considers sexual slavery to be of the same gravity as slavery and a violation of jus cogens.486 By elevating this crime to the status of jus cogens, the Special Court thus strives to provide an overarching protection for potential victims of this crime, which are invariably women and girls. This finding is of crucial importance given that international crimes that have acquired the status of jus cogens give rise to obligations erga omnes among states. In this light, it should be recalled that the ICJ in the Barcelona Transaction case held that: “[A]n essential distinction should be drawn between the obligations of a State towards the international community as a whole, and those arising vis-à-vis another State in the field of diplomatic protection. By their very nature the former are the concern of all States. In view of the importance of the rights involved, all States can be held to have a legal interest in their protection; they are obligations erga omnes.”487

However, it would have been of further assistance if the Special Court had carried out an analysis of this crime that portrays why it considers it to amount to peremptory norm. The ICC while being able to rely on this jurisprudence would have to further develop the jurisprudence in this regard. Likewise, it could be envisaged to have a convention on sexual slavery. Such a move would as well – provided most states sign it – serve the purpose for which the Special Court strived to i.e. the provision of an overarching protection for potential victims of sexual slavery. Further, the Special Court held that the relevant constitutive elements of sexual slavery are:

483 ICTY, The Prosecutor v. Kunarac et al., Case No. IT-96-23-T & IT-96-23 / 1-T, Judgment, 22 February 2001, paras. 746 – 782. 484 ICTY, Kunarac et al. Appeal Judgment, para. 186. 485 SCSL, Sesay, Kallon, Gbao Trial Judgment, para. 2305. 486 Ibid., para. 157. Article 53, Vienna Convention defines jus cogens as ‘[a] peremptory norm of general international law accepted and recognised by international community of states as a whole from which no derogation is permitted and which can be modified only by a subsequent norm of a general international law having the same character’ (Vienna Convention on the Law of Treaties, with Annex, 23 May 1969, UN Doc. A / CONF.39 / 27). 487 ICJ, Barcelona Traction Light and Power Co. Ltd (Belgium v. Spain), 1970 ICJ Rep. 3, 32 (Judgment of 5 February).

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(1) The Accused exercised any or all the powers attaching to the right of ownership over one or more persons, such as by purchasing, selling, lending or bartering such a person or persons, or by imposing on them a similar deprivation of liberty; (2) The Accused caused such person or persons to engage in one or more acts of a sexual nature; and (3) The Accused intended to exercise the act of sexual slavery or acted in the reasonable knowledge that this was likely to occur.488 These elements are identical to those of Article 7(1)(g)-2 of the ICC Elements of Crimes albeit for the fact that the latter includes the element that ‘the conduct was committed as part of a widespread or systematic attack directed against a civilian population’. While this can be prima facie immaterial considering the fact that the chapeau requirements of Article 2 SCSL Statute dealing with crimes against humanity, requires that the crimes enumerated thereunder be committed as part of a widespread or systematic attack against any civilian population, a closer look establishes that the Special Court’s elements represent a lower threshold. These elements as identified and applied by the Special Court could be divided into the substantive elements and the mental elements. aa) Substantive Elements (actus reus) In order to satisfy the actus reus of the offence of sexual slavery, the RUF Trial Chamber identified two elements namely: (1) that the Accused exercised any or all of the powers attaching to the right of ownership over a person or persons (the slavery element); and (2) that the enslavement involved sexual acts (the sexual element).489 Hence, the Prosecution would need to establish that enslavement occurred. To this effect, the RUF Trial Chamber while noting that the list of actions that reflect the exercise of a power of ownership that is included in the element is not exhaustive, adopted the indicia of enslavement identified by the ICTY in the Kunarac et al. case:490 “control of someone’s movement, control of physical environment, psychological control, measures taken to prevent or deter escape, force, threat of force or coercion, duration, assertion of exclusivity, subjection to cruel treatment and abuse, control of sexuality and forced labour.”491 It should be noted that the expression “similar deprivation of liberty” used in the first element enumerated by the Ibid., para. 158. SCSL, Sesay, Kallon, Gbao Trial Judgment, para. 159. 490 ICTY, The Prosecutor v. Kunarac et al., Case No. IT-96-23-T & IT-96-23 / 1-T, 22 February 2001, para. 543 [original footnotes omitted]; ICTY, Kunarac et al. Appeal Judgment para. 119. 491 SCSL, Sesay, Kallon, Gbao Trial Judgment, para. 160. 488 489

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RUF Trial Chamber should be understood as covering “situations in which the victims may not have been physically confined, but were otherwise unable to leave as they would have nowhere else to go and feared for their lives”.492 In addition to the slavery element, there needs to also be the sexual element. In the absence of the sexual element, the crime will merely – in this context the use of the word ‘merely’ should not be understoon as diminuishing the gravity of the crime in any way – amount to slavery. Thus the sexual element is what distinguishes this crime from slavery. bb) Mental Element (mens rea) As pointed out above, the mens rea requirement of the Special Court represents a lower threshold than that of the ICC Statute. This is so because, in relation to the ICC Elements of Crimes, not only would it have to be proven that the accused intented the act but it must be proven that (s)he was aware that this conduct was part of or intended the conduct to be part of a widespread or systematic attack. In relation to the Special Court, in order to satisfy the mens rea element, the Prosecution must prove that the accused intended to exercise the act of sexual slavery or acted in the reasonable knowledge that this was likely to occur.493 It is immaterial whether the accused knew that his conduct was part of a widespread or systematic attack. It should be noted that there is no onus on the part of the Prosecution to prove that the victim did not consent to the enslavement or to the sexual acts. However, the RUF Trial Chamber pointed out that this element could, from an evidentiary point of view, be relevant in establishing whether or not the accused exercised any of the powers attaching to the right of ownership.494 It subscribed to the statement of the ICTY Appeals Chamber in the Kunarac case that “circumstances which render it impossible to express consent may be sufficient to presume the absence of consent.”495 Therefore, the Special Court jurisprudence on sexual slavery, being the first to analyse this crime as such, has clearly elaborated on the elements of the crime. This could be of great assistance to the ICC and can be described as a substantial contribution to the development of international humanitarian law. Ibid., para. 161. SCSL, Sesay, Kallon, Gbao Trial Judgment, para. 158. See also SCSL, The Prosecutor v. Isaa Sesay, Moris Kallon, Augustine Gbao, Case No. SCSL-04-15-T, Oral Rule 98 Decision, Transcript of 25 October 2006, p. 22. 494 SCSL, Sesay, Kallon, Gbao Trial Judgment, para. 163. See also Update to Final Report submitted by Special Rapporteur on Contemporary Forms of Slavery: Systematic Rape, Sexual Slavery and Slavery-like Practices During Armed Conflict, Economic and Social Council, Commission on Human Rights, Sub-Commission on the Promotion and Protection of Human Rights, E / CN.4 / Sub.2 / 2000 / 21, 6 June 2000. 495 SCSL, Sesay, Kallon, Gbao Trial Judgment, para. 163, citing ICTY, Kunarac et al. Appeal Judgment, para. 120. 492 493

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c) Enforced Prostitution The crime of enforced prostitution although not a new crime in international humanitarian law, was not included in any of the statutes of international criminal courts.496 It was recognized for the first time as a separate crime against humanity in the ICC Statute.497 The Elements of Crimes of the ICC comprehensively list the elements of the crime against humanity of enforced prostitution as: “(1) The perpetrator caused one or more persons to engage in one or more acts of a sexual nature by force, or by threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or persons or another person, or by taking advantage of a coercive environment or such person’s or persons’ incapacity to give genuine consent. (2) The perpetrator or another person obtained or expected to obtain pecuniary or other advantage in exchange for or in connection with the acts of a sexual nature. (3) The conduct was committed as part of a widespread or systematic attack directed against a civilian population. (4) The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population.”498

The material element requires that one or more persons be forced or threatened to carry out acts of a sexual nature. Moreover, the perepetrator or another person must receive or expect to receive financial advantages as a result of the sexual acts.499 The Special Court although empowered to prosecute this crime, did not address this issue. This could be due to the fact that it was not a common feature of the conflict. The women and girls abducted were used as so-called ‘wives’ or were raped and abandoned. However, the perpetrators of these crimes were not interested in having financial benefits from their victims. It was a more a matter of having the physical satisfaction. Hence, the Special Court, has not been able to make any contribution to the development of international humanitarian law in this regard. d) Forced Pregnancy The crime of forced pregnancy is not a new crime but merely a more detailed elucidation of already existing law.500 However, it was inserted for the first time in the 496 497

Cf. Kai Ambos, Internationales Strafrecht, supra note 22, § 7, mn. 212. Gerhard Werle, Principles of International Criminal Law, supra note 294, p. 326, mn.

881. ICC Elements of Crimes, Article 7(1)(g)-3. Cf. Kai Ambos, Internationales Strafrecht, supra note 22§ 7, mn. 212; Gerhard Werle, Principles of International Criminal Law, supra note 294, p. 326, mn. 881. 500 Cf. Robert Cryer, Prosecuting International Crimes: Selectivity and the International Criminal Law Regime, Cambridge University Press, Cambridge, 2005, p. 258. 498 499

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ICC Statute prior to its inclusion in the SCSL Statute. During the diplomatic conference on the establishment of the ICC Statute, there was intense discussion on the inclusion of forced pregnancy in the ICC Statute.501 This discussion was based on the fear by some delegations that this new concept would be in conflict with certain national systems that do not provide a right for abortion.502 There is thus far no jurisprudence on this detailed crime. Hence, an analysis requires a look at the material elements of the crime as listed in the ICC Elements of Crimes. The Elements of Crimes of the ICC comprehensively list the elements of the crime against humanity of forced pregnancy as: “(1) The perpetrator confined one or more women forcibly made pregnant, with the intent of affecting the ethnic composition of any population or carrying out other grave violations of international law. (2) The conduct was committed as part of a widespread or systematic attack directed against a civilian population. (3) The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population.”503

Hence, the actus reus element would be satisfied once it has been established that the perpetrator illegally imprisoned a forcibly impregnated woman. It is prima facie irrelevant whether the woman was impregnated by the perpetrator who is illegally detaining her.504 Further, the conduct must have been committed as part of a widespread or systematic attack. This element would obviously have as effect, the exclusion of any domestic laws which prohibit abortion. This is clearly stated in Article 7 (2)(f) ICC Statute which states that “[t]his definition shall not in any way be interpreted as affecting national laws relating to pregnancy”.505 With regards to the mens rea, the Prosecution has to establish that the perpetrator intended, through his act, to affect the ethnic composition of any population or carry out other grave violations of international law. That said, it remains to be seen whether the Charles Taylor case would address this issue or whether the ICC would have to, at a given point, address this detailed crime.

501 Cf. Cate Steains, Gender Issues, in: Roy S. Lee, The International Criminal Court: The Making of the Rome Statute: Issues, Negotiations, Results, supra note 199, pp. 363 – 369. 502 Cf. Robert Cryer / Hakan Friman / Darryl Robinson / Elizabeth Wilmshurst: An Introduction to International Criminal Law and Procedure, supra note 394, p. 257. 503 ICC Elements of Crimes, Article 7(1)(g)-4. 504 Gerhard Werle, Principles of International Criminal Law, supra note 294, p. 326, mn. 883. 505 Article 7(2)(f) ICC Statute.

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e) Other Forms of Sexual Violence While the act of sexual violence is indisputably prohibited in international law, the approach to this crime is divergent. The jurisprudence of the ICTR adopts a rather broad definition of sexual violence. It defines sexual violence as any act of a sexual nature that is committed on a person under circumstances that are coercive.506 The ICC on the other hand has opted for the option of establishing a comprehensive list of the elements of the crime of sexual violence. The Elements of Crimes of the ICC comprehensively list the elements of the crime against humanity of other forms of sexual violence as: “1. The perpetrator committed an act of a sexual nature against one or more persons or caused such person or persons to engage in an act of a sexual nature by force, or by threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or persons or another person, or by taking advantage of a coercive environment or such person’s or persons’ incapacity to give genuine consent. 2. Such conduct was of a gravity comparable to the other offences in article 7, paragraph 1 (g), of the Statute. 3. The perpetrator was aware of the factual circumstances that established the gravity of the conduct. 4. The conduct was committed as part of a widespread or systematic attack directed against a civilian population. 5. The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population.”507

Each of these approaches has its advantages and disadvantages. The positive aspect in the ICTR approach is that it is prudent and permits a broad range of coercive acts – provided they are of a sexual nature – to be prosecuted under this provision. However this is exactly its disadvantage in that it does not assist in establishing the certainty of the law. In contrario, this is exactly the positive aspect of the ICC approach. By listing the elements that need to be satisfied in order to establish the crime against humanity of sexual violence, the certainty of the law is achieved. Admittedly this may lead to the exclusion of an act which otherwise could have been prosecuted as sexual violence under international criminal law. As pointed out in the Akayesu case, the crime against humanity of sexual violence could also be prosecuted as “other inhumane acts”.508 It is clear that the inclusion of ‘other forms of sexual violence of comparable gravity’ was meant to have a catch-all character, however, by providing a comprehensive list, it is de facto delimiting what could be prosecuted under this crime.

506 507 508

ICTR, Akayesu Trial Judgment, para. 688. ICC Elements of Crimes, Article 7(1)(g)-6. ICTR, Akayesu Trial Judgment, paras. 461 et seq.

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The Special Court in the RUF case, refused to consider criminal acts which were pleaded under this – in its words – ‘unacceptably vague phrase’. It recalled that “the residual nature of the crime of ‘any other form of sexual violence’ requires clarification of the conduct the Prosecution would rely on to prove the offence”.509 In this respect, the jurisprudence of the Special Court could be hailed for reaffirming the principle of the certainty of the law. Hence, the Special Court, in being the first international criminal court to apply this new codification has laid a foundation upon which the ICC could and should build upon.

8. Persecution on Political, Racial and Religious Grounds The crime of persecution has been lengthily addressed by the ad hoc Tribunals.510 The ICTY Appeals Chamber in the Blaskic case held that: “although persecution often refers to a series of acts, a single act may be sufficient, as long as this act or omission discriminates in fact and was carried out deliberately with the intention to discriminate on one of the listed grounds. Furthermore, the acts underlying persecutions as a crime against humanity, whether considered in isolation or in conjunction with other acts, must constitute a crime of persecutions of gravity equal to the crimes listed in Article 5 of the Statute“.511 The crime of persecution consists of an act or omission which: (1) discriminates in fact and which denies or infringes upon a fundamental right laid down in international customary or treaty law; and (2) was deliberately carried out with the intention to discriminate on political, racial or religious grounds.512 The key element of the crime of persecution is thus the discriminatory intent of the perpetrator. In this light, an analysis of the statutory provisions of the international criminal courts513 establishes that although they all require a discriminatory

509 SCSL, Sesay, Kallon, Gbao Trial Judgment, para. 470. In the AFRC case, the Trial Chamber dismissed the charges under “any other form of sexual violence” on the grounds that the Prosecution had not clearly identified the specific offence(s) which the accused were to answer (SCSL, Brima, Kamara, Kanu Trial Judgment, 20 June 2007, para. 21). 510 ICTY, The Prosecutor v. Stakić, Case No. IT-97-24-A, Appeal Judgment, 22 March 2006, para. 327, ICTY, The Prosecutor v. Kvočka et al., Case No. IT-98-30 / 1-A, Appeal Judgment, 28 February 2005, para. 320; ICTY, Kordić and Čerkez Appeal Judgment, para. 101; ICTY, Blaškić Appeal Judgment, para. 131; ICTY, The Prosecutor v. Vasiljević, Case No. IT98-32-A, Appeal Judgment, 25 February 2004, para. 113; ICTY, Krnojelac Appeal Judgment, paras. 185, 199, 221. 511 ICTY, Blaškić Appeal Judgment, para. 135. 512 ICTY, The Prosecutor v. Stakić, Case No. IT-97-24-A, Appeal Judgment, 22 March 2006, para. 327; ICTY The Prosecutor v. Kvočka et al., Case No. IT-98-30 / 1-A, Appeal Judgment, 28 February 2005, para. 320; ICTY Kordić and Čerkez Appeal Judgment, para. 101; ICTY, Blaškić Appeal Judgment, para. 131; ICTY, The Prosecutor v. Vasiljević, Case No. IT98-32-A, Appeal Judgment, 25 February 2004, para. 113; ICTY, Krnojelac Appeal Judgment, para. 185.

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intent on the part of the perpetrator, the grounds for this discrimination are not entirely identical. According to the ICTY Statute, the perpetrator’s discriminatory intent has to have been on political, racial and religious grounds.514 The ICTR Statute in its Article 3(h) contains the same grounds as the ICTY Statute, however, the chapeau requirement for crimes against humanity is that the crimes enlisted in Article 3 ought to have been committed ‘as part of a widespread or systematic attack against any civilian population on national, political, ethnic, racial or religious grounds’.515 The Law on the Establishment of Extraordinary Chambers in the Courts of Cambodia in its Article 5 contains an identical formulation as Article 3 of the ICTR Statute.516 On the other hand, the ICC Statute requires that the discriminatory intent be based on political, racial, national, ethnic, cultural, religious, gender or other grounds recognized as impermissible under international law.517 This represents an even broader scope of the nature of the discriminatory ground. The Special Court has a narrower scope of grounds – in comparison to the ICC Statute – upon which the discriminatory intent is based. According to Article 2(h) SCSL Statute, the discrimination must be based on political, racial, ethnic or religious grounds.518 It must be borne in mind that it does not suffice that the intent was discriminatory; the effect of the act must also be discriminatory.519 There is no jursprudence of the Special Court in relation to the crime of persecution. This is due to the fact that during the conflict no identifiable group was being discriminated upon.520 The conflict was not based on political, racial, ethnic or religious ideologies but was rather on economic interest. Thus, there were no identifiable victims of persecution and hence no indictments thereon. 9. Other Inhumane Acts The crime against humanity of ‘other inhumane acts’ can be regarded as a “catch all” provision, the purpose of which is to cover all acts of similar gravity that are not expressly enumerated under the crimes against humanity article of the respective statutes of international criminal courts. It is a residual category for serious acts which are not otherwise enumerated under crimes against humanity but which 513 The term “international criminal courts” is being used in this context to refer to the ICC, ICTR, ICTY and Special Court. 514 Cf. ICTY Statute, Article 5(h). 515 Cf. ICTR Statute, Article 3(h). 516 Cf. ECCC Statute, Article 5, supra note 8. 517 Cf. ICC Statute, Article 7(h). 518 Cf. SCSL Statute, Article 2(h). See also SCSL, Sesay, Kallon, Gbao Trial Judgment, footnote 134. 519 ICTY, Krnojelac Trial Judgment, para. 733. 520 For more on the identity of the groups that were involved in the conflict in Sierra Leone, see section 2.4 above depicting the parties to the conflict.

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nevertheless require proof of the same general requirements,521 – including crimes with a sexual or gender component or nature.522 The purpose of this ‘catch-all’ category is to ensure that those crimes against humanity not previously envisioned do get prosecuted, thereby safeguarding against human ingenuity.523 This provision is present in all the statutes of international criminal courts that apply international law.524 The International Law Commission (ILC) in its Commentary on Article 18 to the Draft Code of Crimes against the Peace and Security of Mankind acknowledged that it is practically impossible to have a complete list of all acts that may qualify as ‘other inhumane acts’. The ILC stated that ‘other inhumane acts’ include: “acts of similar gravity that are intended to cause injury to a human being in terms of physical or mental integrity, health or human dignity”.525 Similarly, the ICTY jurisprudence defines the elements of the crime of ‘other inhumane acts’ as: “(i) there was an act or omission of similar seriousness to the other acts enumerated in Article 5; (ii) the act or omission caused serious mental or physical suffering or injury or constituted a serious attack on human dignity; and (iii) the act or omission was performed intentionally.”526 In the same light, the ICC in the

521 SCSL, Sesay, Kallon, Gbao Trial Judgment, para. 165; ICTY, Galić Trial Judgment, para. 152; ICTY, The Prosecutor v. Vasiljević, Case No. IT-98-32-T, Judgment, 29 November 2002, para. 234; ICTY, Krnojelac Trial Judgment, para. 130; ICTY, The Prosecutor v. Kvocka et al., Case No. IT-98-30 / 1-T, Judgment, 2 November 2001, para. 206. 522 SCSL, The Prosecutor v. Alex Tamba Brima, Ibrahim Bazzy Kamara and Santigie Borbor Kanu, Case No. SCSL-2004-16-A, Appeals Judgment, 22 February 2008 (hereinafter ‘Brima, Kamara, Kanu Appeals Judgment’), paras. 184 – 186. See also SCSL, The Prosecutor v. Moinina Fofana and Allieu Kondewa, Case No. SCSL-04-14-A, Appeals Judgment, 28 May 2008 (hereinafter ‘Fofana and Kondewa Appeals Judgment’), para. 441: “The Appeals Chamber is of the opinion that acts of sexual violence may constitute ‘other inhumane acts’ […].” 523 ICTY, The Prosecutor v. Kupreškić, Case No. IT-95-16-T, Judgment, 14 January 2000, para. 563. See also Michael p. Scharf / Suzanne Mattler, Forced Marriage, Exploring the Viability of the Special Court for Sierra Leone’s New Crime Against Humanity, Case Research Paper Series in Legal Studies, Working Paper 05 – 35, October 2005, pp. 5 et seq. 524 Cf. ICTY Statute, Article 5(i); ICTR Statute, Article 3(i); ICC Statute, Article 7(1)(k); ECCC Statute, Article 5 and SCSL Statute, Article 2(i). The Special Tribunal for Lebanon has not been included here since it applies Lebanese Law (Article 2 of the Statute of the Special tribunal for Lebanon, UN Doc / S / RES / 1757 [2007]) available at: http: // www.stl-tsl.org / sid / 49#Statutes. 525 Cf. Draft Code of Crimes against the Peace and Security of Mankind, Report of the International Law Commission on Its Forty-eighth Session, UN GAOR, 5 Ist Sess., Supp. No. 10, at 9, UN Doc. A / 51 / I0 (1996), For a detailed analysis of the Draft Code of Crimes against the Peace and Security of Mankind, see Rosemary Rayfuse, The Draft Code of Crimes against the Peace and Security of Mankind: Eating Disorders at the International Law Commission, in 8 CLF 3, 1997, pp. 48 et seq. 526 ICTY, The Prosecutor v. D. Milošević, Case No. IT-98-29 / 1-A, Appeal Judgment, 12 November 2009, para. 108, referring to the Trial Judgment (Case No. IT-98-29 / 1-T, 12 December 2007) para. 934; ICTY The Prosecutor v. Krajišnik, Case No. IT-00-39-A, Judgment, 17 March 2009, paras. 330 – 331.

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Prosecutor v. Katanga and Ngudjolo Chui case, defined inhumane acts as “serious violations of international customary law and the basic rights pertaining to human beings, drawn from the norms of international human rights law, which are of a similar nature and gravity to the acts referred to in article 7(1)”.527 Consistent with the ILC and ad hoc Tribunals approaches to this crime, the Special Court jurisprudence holds that the constitutive elements of the crime of other inhumane acts are: “(i) The occurrence of an act or omission that inflicts great suffering or serious injury to body, or to mental or physical health; (ii) The act or omission is sufficiently similar in gravity to the acts referred to in Article 2(a) to Article 2(h) of the Statute; (iii) The Accused was aware of the factual circumstances that established the character of the gravity of the act; and (iv) The Accused, at the time of the act or omission, had the intention to commit the inhumane act or acted in the knowledge that this would likely occur.”528

The Special Court jurisprudence has thus been consistent with that of the ad hoc Tribunals. The crime of ‘other inhumane acts’ has been recognized by the ad hoc Tribunals, as well as the Special Court as forming part of customary international law.529 With regards to the mens rea, what is of great importance is the perpetrator’s intent at the time the crime was carried out, i.e. the mens rea requirement would be satisfied if it has been established that at the time of the act or omission, the perpetrator intended to inflict great suffering or serious injury to body, or to mental or physical health of the victim, or where it is proven that (s)he had reasonable knowledge that the act or omission would likely inflict great suffering or serious injury to body, or to mental or physical health.530

527 ICC, The Prosecutor v. Katanga and Ngudjolo Chui, Case No. ICC-01 / 04-01 / 07, PreTrial Chamber, Decision on the Confirmation of Charges, 30 September 2008, para. 448. 528 SCSL, Brima, Kamara, Kanu Appeals Judgment, 22 February 2008, para. 198; SCSL, Fofana and Kondewa Trial Judgment, 2 August 2007, para. 150; SCSL, Sesay, Kallon, Gbao Trial Judgment, para. 168, referring to ICTY, Galić Trial Judgment, para. 154; ICTY, The Prosecutor v. Vasiljević, Case No. IT-98-32-T, Judgment, 29 November 2002, para. 236. 529 ICTY, The Prosecutor v. Stakić, Case No. IT-97-24-A, Appeal Judgment, 22 March 2006, para. 315; ICTY, The Prosecutor v. Blagojević and Jokić, Case No. IT-02-60-T, Judgment, 17 January 2005, para. 624; SCSL, Brima, Kamara, Kanu Appeals Judgment, para. 183. 530 SCSL, Prosecutor v. Norman, Fofana and Kondewa, Case No. SCSL-04-14-T, Decision on Motions for Judgment of Acquittal Pursuant to Rule 98 (TC), 21 October 2005, para. 94 [CDF Rule 98 Decision]; see also ICTY, Krnojelac Trial Judgment, para. 132; ICTY, The Prosecutor v. Vasiljević, Case No. IT-98-32-T, Judgment, 29 November 2002, para. 236; ICTR, Kayishema and Ruzindana Trial Judgment, para. 153.

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With regard to the actus reus, in order to satisfy the elements of the crime of other inhumane acts, the act must be of a similar gravity as those listed under the article relating to crimes against humanity and there must be some nexus between the perpetrators act and the suffering of the victim. However, this injury is not limited to physical pain. The Special Court has recognized that a third party could suffer serious injury to mental health as a result of having witnessed acts committed against others, in particular against loved ones such as family or friends.531 In this light it held that: “the Accused may be held liable for causing serious injury to (sic) mental health to a third party who witnesses acts committed against others”.532 However, it does not suffice that the third party witnessed the act, it must be established that the accused’s intention was to inflict serious injury to the mental health of the third party, or that the accused had reasonable knowledge that his act would likely cause serious injury to the mental health of the third party.533 Under this rubrique, the Special Court’s jurisprudence has emerged as an important development in international criminal law. This was the express intention of the Special Court’s Appeals Chamber, which held that “[t]he Appeals Chamber will consider the submissions made [regarding the charge of force marriage as an inhumane act] as an issue of general importance that may enrich the jurisprudence of international criminal law”.534 For the first time, an international criminal court addressed the issue of forced marriage as a crime against humanity. The Special Court’s Appeals Chamber reversed the Trial Chamber’s finding that the evidence adduced by the Prosecution for this count was of a sexual nature and thus should have been subsumed under the count of sexual slavery.535 This issue of forced marriage would be dealt with in greater detail below in Chapter Eight, Legacy of the Special Court.

VI. Conclusion As regards crimes against humanity, the above analysis establishes that the Special Court has provided substantial contribution to the development of international humanitarian law. This is all the more true with regard to those crimes which were newly codified in the ICC Statute and have not yet been the subject of any jurisprudence. The case law emanating from the Special Court will be of great help for SCSL, Sesay, Kallon, Gbao Trial Judgment, para. 171. Ibid. 533 Ibid. In the same light, in the Kayishema and Ruzindana case, the Trial Chamber held that the Accused could not be held responsible for the mental suffering of a third party if he was not aware of the latters presence: “[…] if at the time of the act, the Accused was unaware of the third party bearing witness to his act, then he cannot be held responsible for the mental suffering of the third party.” (para. 153) 534 SCSL, Brima, Kamara, Kanu Appeals Judgment, para. 181. 535 Ibid., SCSL, para. 185. 531 532

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further cases in the international law arena. The case law of the Special Court endorsed in several occasions the jurisprudence of the ad hoc Tribunals, thereby consolidating international humanitarian law in these fields. However, its jurisprudence did not only consolidate existing jurisprudence but in some cases went further to expand the interpretation of the law, as well as address new issues in international humanitarian law such as the proscribtion of the recruitment and use of child soldiers in armed conflicts, the probihition of forced marriage etc.

Chapter 5

The Special Court’s Case Law on War Crimes I. The Notion of War Crimes The various categories of crimes emanating from international humanitarian law relating to ‘war crimes’ differ from one court to the other. At the ICTY, Articles 2 and 3 deal with grave breaches of the Geneva Conventions of 1949 and violations of the laws and customs of war respectively.536 At the ICTR, Article 4 deals with the violations of Article 3 common to the Geneva Conventions and of AP II.537 The SCSL Statute in its Article 3 contains essentially the same language and category of crimes as Article 4 of the ICTR Statute.538 However, Article 4 of the SCSL Statute contains an additional war crimes provision entitled ‘other serious violations of international humanitarian law’.539 These differences could be partially justified by the different nature of the conflicts that took place in the respective regions, over which the above mentioned courts have jurisdiction. These conflicts were in some cases international in nature and in other cases non-international in nature. Hence the need at this juncture to analyse the regulation of international and non-international armed conflicts.

536 Cf. Articles 2 and 3, ICTY Statute. Grave breaches are crimes considered to be of such a serious nature that all States Parties are required to prosecute persons accused of such offences, or to hand them over to other States Parties willing to prosecute such persons accused of having committed such offences. However, the application of grave breaches is limited to international armed conflicts as against non-international armed conflicts. 537 Cf. Article 4, ICTR Statute. 538 Cf. Article 3, SCSL Statute. 539 Article 4 SCSL Statute reads: “The Special Court shall have the power to prosecute persons who committed the following serious violations of international humanitarian law: (a) Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities; (b) Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict; (c) Conscripting or enlisting children under the age of 15 years into armed forces or groups or using them to participate actively in hostilities.

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II. The Regulation of International and Non-international Armed Conflicts The ICTY Appeals Chamber in the Tadic case contributed greatly to the development of international humanitarian law by providing a definition to the concept of armed conflict. It held that: “[A]n armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State”.540 This definition can be said to have acquired an authoritative standing as the formula for the characterization of an armed conflict in international humanitarian law. This can be seen by the fact that it has been used to determine the status of a number of situations around the world including in East Timor,541 Lebanon,542 Palestine,543 Sierra Leone,544 Somalia,545 and Sudan.546 Illustratively, the Commission of Inquiry on Lebanon set up in the aftermath of the 2006 Israeli military operations in Lebanon, stated in its Report that: “[i]t is well established in international humanitarian law that for the existence of an armed conflict the decisive element is the factual existence of the use of armed force. That aside, there is authority for the proposition that an armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State. International Humanitarian law applies as soon as an armed conflict arises and it binds all the parties thereto 540 ICTY, Tadić Appeal Decision on Jurisdiction, para. 70. For more on the contribution of the ICTY to the development of international humanitarian law, see Christopher Greenwood, The Development of International Law by the International Criminal Tribunal for the Former Yugoslavia, 2 Max Planck Yearbook of United Nations Law 97, 1998, pp. 114 et seq.; Sonja Boelaert-Souminen, The Yugoslav Tribunal and the Common Core of Humanitarian Law Applicable to All Armed Conflicts, 13 LJIL 3, 2000, pp. 632 – 633. 541 Cf. Report of the Commission for Reception, Truth, and Reconciliation in East Timor, 31 October 2005, para. 141, available at http: // www.etan.org / news / 2006 / cavr.htm. 542 Cf. United Nations Human Rights Council, Report of the Commission of Inquiry on Lebanon pursuant to Human Rights Council Resolution S-2 / 1, 23 November 2006, A / HRC / 3 / 2 (“Human Rights Council Lebanon Report”), para. 51. 543 Cf. Report of the Special Rapporteur of the Commission on Human Rights on the Situation of Human Rights in the Palestinian Territories Occupied by Israel since 1967, UN Doc. A / 56 / 440, 4 October 2001, para. 13; Report of the Special Rapporteur of the Commission on Human Rights on the Situation of Human Rights in the Palestinian Territories Occupied by Israel since 1967, UN Doc. E / CN.4 / 2002 / 32, 6 March 2002, para. 18. 544 Cf. Report of the Sierra Leone Truth and Reconciliation Commission, Vol. 1, 5 October 2004, para. 57, available at http: // reliefweb.int / node / 233548. 545 Cf. Report on the Situation of Human Rights in Somalia, prepared by the Independent Expert of the Commission on Human Rights, Mona Rishmawi, pursuant to Commission Resolution 1996 / 57 of 19 April 1996, UN Doc. E / CN.4 / 1997 / 88, 3 March 1997, para. 54. 546 Cf. Report of the Special Rapporteur on the Human Rights Situation in the Sudan, Sima Sanar, UN Doc. E / CN.4 / 2006 / 111, 11 January 2006, para. 8; Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General pursuant to Security Council Resolution 1564 of 18 September 2004, 25 January 2005, para. 74.

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to fully comply with it. On the basis of the factual circumstances of the conduct of the hostilities that took place, including the intensity of the violence and the use of armed force, the Commission is of the view that the existence of an armed conflict during the relevant period has been sufficiently established.”547

International humanitarian law distinguishes between two types of armed conflicts: (1) international armed conflicts, opposing two or more States, and (2) noninternational armed conflicts, between governmental forces and non-governmental armed groups, or between such groups only. Thus, from a legal perspective there are no other types of conflicts. Malcom Shaw submits that this distinction is historically ‘founded upon the difference between inter-state relations, which was the proper focus for international law, and intra-state matters which traditionally fell within the domestic jurisdiction of states and were thus in principle impervious to international legal regulation’.548 A non-international armed conflict can be defined as “armed confrontations occurring within the territory of a single State and in which the armed forces of no other State is engaged against the central government”.549 The features of non-international armed conflicts include: the deliberate targeting of civilians, the destruction of civilian property and looting, the use of civilians as human shields, forced displacement of populations, the destruction of property vital to the existence of the civilian population, torture, rape and other forms of sexual violence.550 It is worthy to note that a situation can evolve from one type of armed conflict to another, depending on the facts prevailing at the given time. The discussion on the distinction between international and non-international armed conflict is the subject of dispute. While some scholars believe that this distinction has lost most of its significance,551 others are of the view that this determination is still of critical importance.552 One of the arguments put forward by those who think the distinction is still Cf. Human Rights Council Lebanon Report, supra note 542, para. 51. Malcolm N. Shaw, International Law, Cambridge University Press, Cambridge, 5th edn. 2002, pp. 1068 – 1069. 549 Cf. The Manual on the Law of Non-International Armed Conflict, with Commentary, International Institute of Humanitarian Law, Sanremo, 2006, p. 2. 550 Cf. ICRC Report, Increasing Respect for International Humanitarian Law in Non-International Armed Conflicts, Geneva, February 2008, p. 5. 551 Cf. D. Schindler, Significance of the Geneva Conventions for the Contemporary World, 81 International Review of the Red Cross 836, 1999, pp. 715 – 729; James Stewart, Towards a Single Definition of Armed Conflict in International Humanitarial Law: A Critique of Internationalized Armed Conflict, 85 International Review of the Red Cross 850, 2003, pp. 313 – 350; Deidre Willmott, ‘Removing the Distinction between International and Non-International Armed Conflict in the Rome Statute of the International Criminal Court’, 5 Melbourne Journal of International Law 1, 2004, pp. 196 – 219; Emily Crawford, ‘Unequal Before the Law: The Case for the Elimination of the Distinction between International and Non-International Armed Conflict’, 20 LJIL, 2, 2007, pp. 441 – 465. 552 Cf. Theodore Meron, War Crimes in Yugoslavia and the Development of International Law, 88 Am. J. Int’l L. 78, 1994, p. 80; Christine Byron, Armed Conflicts: International or Non-International?, 6 Journal of Conflict and Security Law 1, 2001, pp. 63 – 90. 547 548

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important is that the rules applicable during non-international armed conflicts are rudimentary and skeletal compared to those applicable to international conflicts. Admittedly, the sphere of non-international armed conflicts has gained increasing importance and attention as a result of the evident frequency and threat that such conflicts pose to international peace. However, analyses carried out by the ICRC have revealed that there is a gradual blurring of the fundamental differences between international and non-international armed conflicts.553 In addition, several states, as well as some international humanitarian law experts no longer distinguish between international humanitarian law rules and principles applicable to international armed conflicts and those applicable to non-international armed conflicts. This can be seen by the fact that the German Handbook of Humanitarian law in Armed Conflicts – a product of government experts from 18 states and other international humanitarian law experts – does not apply this distinction any more.554 Instead it in its paragraph 211 provides that: “[G]erman soldiers like their allies are required to comply with the rules of international humanitarian law in the conduct of military operations in all armed conflicts how-ever such conflicts are characterized.”555

Wolff Heintschel von Heinegg avers that this provision is what led the ICTY to adopt a similar approach regarding the merger of international humanitarian law rules and principles applicable to international armed conflicts and those applicable to non-international armed conflicts.556 Further, the ICTY Appeals Chamber in addressing the issue of jurisdiction of the Tribunal asked an essential question: “Why protect civilians from belligerent violence, or ban rape, torture or the wanton destruction of hospitals, churches, museums or private property, as well as proscribe weapons causing unnecessary suffering when two sovereign States are engaged in war, and yet refrain from enacting the same bans or providing the same prosecution when armed violence has erupted ‘only’ within the territory of a sovereign State? If international law, while of course duly safeguarding the legitimate interests of States, gradually turns to the protection of human beings, it is only natural that the aforementioned dichotomy should gradually lose its weight.”557 553 The ICRC in 2005 identified that out of the 161 rules of customary humanitarian law, 148 rules apply to both international and internal armed conflicts (see Christopher Harland, The Domestic Implementation and Application of International Humanitarian Law Norms, p. 2, available at http: // www.supremecourt.gov.pk / ijc / Articles / 1 / 3.pdf). 554 Cf. Wolff Heintschel von Heinegg, ‘The German Manual’, in: Nubuo Hayashi (ed.), National Military Manuals on the Law of Armed Conflict, Forum for International Criminal and Humanitarian Law Publication Series No. 2, 2010, 2nd edn., Torkel Opsahl Academic EPublisher, Oslo, p. 109. 555 Cf. Germany, Military Manual (Humanitäres Völkerrecht in bewaffneten Konflikten – Handbuch – 1992), para. 418, available at: http: // www.humanitaeres-voelkerrecht.de / page2. php. 556 Cf. Wolff Heintschel von Heinegg, ‘The German Manual’, in: Nubuo Hayashi (ed.), National Military Manuals on the Law of Armed Conflict, supra note 554, p. 112. 557 ICTY, Tadić Appeal Decision on Jurisdiction, para. 97.

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International humanitarian law was initially meant to govern international armed conflicts i.e. armed conflicts between states, however, it has more and more become important in governing internal armed conflicts.558 International humanitarian law strives to protect non-combatants and combatants hors de combat from unnecessary suffering. This protection was enshrined in The Hague559 and Geneva560 Conventions, which are considered to have become customary rules.561 The ‘Marten’s clause’, which was a provision in the preamble of the 1899 Hague Convention, stated that: “Until a more complete code of the laws of war is issued, the High Contracting Parties think it right to declare that in cases not included in the Regulations adopted by them, populations and belligerents remain under the protection and empire of the principles of international law, as they result from the usages established between civilized nations, from the laws of humanity and the requirements of the public conscience.”562

While The Hague conventions of 1899 and 1907 were applicable only to interstate conflicts, the Geneva conventions reflected a significant departure from the classical inter-state structure of the international legal system – albeit still primarily concerned with the inter-state armed conflict.563 However, the 1949 Geneva Con558 Cf. Ray Murphy, United Nations Military Operations and International Humanitarian Law: What Rules Apply to Peacekeepers?, 14 CLF 2, 2003, p. 154. For more on the issue of internal and international armed conflicts, see Christopher Greenwood, Scope of Application of Humanitarian Law, in: Dieter Fleck (ed.). Handbook of Humanitarian Law in Armed Conflicts, 1995, pp. 39 et seq. 559 On 29 July 1899 the first Hague Peace Conference was held during which several international treaties were negotiated such as Convention (II) with Respect to the Laws and Customs of War on Land. On 18 October 1907 the second Hague Peace Conference was held to expand upon the first Hague Convention. This second conference experienced the adoption of several international treaties such as Convention (IV) on Respecting the Laws and Customs of War on Land, and Convention (V) respecting the Rights and Duties of Neutral Powers and Powers in case of War on Land (http: // avalon.law.yale.edu / 20th_century / hague04.asp). 560 On 22 August 1864 the first Geneva Convention for the Amelioration of the Wounded in Armies in the Field was concluded. On 27 July 1929 this 1864 Convention was replaced by two Geneva Conventions (Convention relative to the Treatment of Prisoners of War and Convention for the amelioration of the condition of the wounded and sick in armies in the field), which in turn were replaced by the four Geneva Conventions of 1949. 561 While the Supreme Court of the British Zone of Germany stated that the Hague Rules “do not create international law. They merely codify existing international law” (Dutch Machines Case, 13 October 1949, 16 Annual Digest 390), the International Military Tribunal deemed that “[t]he rules of land warfare […] represented an advance over existing international law at the time of their adoption […] but by 1939 these rules laid down in the Convention were recognized by all civilized nations, and were regarded as being declaratory of the laws and customs of war” (Goering and others, Judgment, 1 October 1946, p. 80, available at: http: // werle.rewi.hu-berlin.de / IMTJudgment.pdf). 562 Cf. Jean-Marie Henckaerts / Louise Doswald-Beck, Customary International Humanitarian Law, Vol. I: Rules, International Committee of the Red Cross, Cambridge University Press, Cambridge, 2005, p. xxv. 563 Common Article 2 of the 1949 Geneva Conventions provides that: “the present Convention shall apply to all cases of […] armed conflict which may arise between two or more of the

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ventions also yielded – through Common Article 3 – the first cautious but successful regulation of non-international armed conflicts.564 Common Article 3 is thus applicable to “armed conflicts not of an international character occurring in the territory of one of the High Contracting Parties”. Common Article 3 is considered as a “Convention within the Conventions”.565 An analysis of this article establishes that it is a negative phrasing that does not provide for a definition of a non-international armed conflict but merely states that it is applicable to a conflict which is not of an international character. Further, with the four Geneva Conventions having been universally ratified, the clause “in the territory of one of the High Contracting Parties” loses its relevance and is now redundant.566 The fact that Common Article 3 was to apply to States as well as to non-state groups marked a shift from the traditional perception that only states were the subjects of international law and that international humanitarian law was only applicable in inter-state conflicts.567 Common Article 3 has been the subject of criticism and praises at the same time by academics, practitioners and stakeholders. It is characterized as a ‘convention in miniature’ because it is binding on both the de jure Government of the High Contracting Party and the insurgent movement.568 It repreHigh Contracting Parties.” The phrase “armed conflict” was employed in the Geneva Conventions to emphasize the fact that the Conventions applied once a conflict between states using arms had begun, regardless of whether there had been a formal declaration of war or not. See John Cerone, ‘Jurisdiction and Power: The Intersection of Human Rights Law and the Law of Non-International Armed Conflict in an Extraterritorial Context’, 40 Isr. L. Rev. 2, 2007, pp. 72 – 128. 564 Common Article 3 states that: “[t]he following acts are and shall remain prohibited at any time and in any place whatsoever with respect to[…] persons [taking no active part in the hostilities, including those placed hors de combat]: (a) Violence to life and person in particular murder of all kinds, mutilation, cruel treatment and torture; (b) Taking of hostages; (c) Outrages upon personal dignity, in particular humiliating and degrading treatment; (d) The passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.” Article 3, Geneva Convention (III) Relative to the Treatment of Prisoners of War, 12 August 1949, 75 U.N.T.S. 135 (entered into force 21 October 1950). 565 Cf. Georges Abi-Saab, Non-International Armed Conflict, in UNESCO, International Dimensions of International Humanitarian Law, London, Martinus Nijhoff Publishers, Dordrecht, 1988, p. 221. 566 The 1949 Geneva Conventions have been ratified in whole or with reservations by 194 countries. 567 Cf. UK Ministry of Defence, The Manual of the Law of Armed Conflict, OUP, 2004, p. 31. According to this Manual, ‘[u]ntil 1949, armed conflicts which were not of an international character were regarded as being governed exclusively by the domestic law of the state in which they occurred.’ 568 Cf. Jean Pictet (ed.), The Geneva Conventions of 12 August 1949, Commentary I, 1952, p. 37.

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sents the minimum threshold of norms applicable in armed conflict situations under international humanitarian law.569 According to Jean Pictet, the importance of Common Article 3 is that it marks ‘a decisive step in the evolution of modern law and tend[s] to limit the sovereignty of the state for the benefit of the individual’.570 In the same light, Heather Wilson is of the view that ‘[a]rticle 3 of the Geneva Conventions was a milestone in the development of the law of war. Although the Article does not grant any legal status to the rebels, as evidenced by the final paragraph, its adoption affirmed that internal wars are not entirely beyond the scope of international law. Each of the States party to the Conventions has the right to demand that its provision be respected by a government engaged in a civil war. To this degree at least, humanitarian protection in non-international armed conflicts was effectively internationalized’.571 However, the negative side of this – admittedly generally laudable – Common Article 3 is that, as stated by the UN Secretary-General in an analytical report to the United Nations Commission on Human Rights: ‘it provides only a minimum of protection i.e. it is silent on issues relating to freedom of movement, does not explicitly prohibit rape, and does not explicitly address matters relating to the methods and means of warfare’.572 Further, some academics critically point out that Common Article 3 does not address certain issues such as a definition of a non-international armed conflict and situations of relief operations.573 However, it must be borne in mind that this article was adopted at a time when states were not willing to give away some of their sovereignty and wanted to preserve their exclusive jurisdiction on issues that occurred within their territory. This can be reflected in certain distinctions that exist between state combatants and non-state combatants. While state combatants are permitted in an international armed conflict to carry out acts which would otherwise under domestic law be considered as criminal, e.g. murder (so long as the law of armed conflict is not violated), non-state combatants are susceptible to criminal proceedings for all hostile acts carried out in a non-international armed conflict.574 Therefore in an international armed conflict, a state acting on the 569 See ICJ, Military and Paramilitary Activities In and Against Nicaragua, 1986, ICJ Reports, p. 114, paras. 218 and 219. See also John Baloro, International Humanitarian Law and Situations of Internal Armed Conflicts in Africa, 4 African Journal of International and Comparative Law 2, 1992, p. 461. 570 Cf. Jean Pictet, Developments and Principles of International Humanitarian Law, Martinus Nijhoff Publishers, Dordrecht, 1985, p. 47. 571 Cf. Heather A. Wilson, International Law and the Use of Force by Liberation Movements, Clarendon Press, Oxford, 1998, p. 44. 572 Cf. Report of the Sub-Commission on Prevention of Discrimination and Protection of Minorities, Minimum Humanitarian Standards: Analytical Report of the Secretary General Submitted pursuant to Commission on Human Rights Resolution 1997 / 21, UN Doc. E / CN.4 / 1998 / 87, 5 January 1998, para. 74. 573 Cf. Y. Sandoz / C. Swinarski / B. Zimmerman (eds.), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, International Committee of the Red Cross, Geneva 1986.

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territory of another state, cannot invoke its own state sovereignty and would have to rely on state combatants’ privileges in lieu of its own sovereign authority. This privilege would apply reciprocally thereby hindering either state from prosecuting privileged enemy combatants for lawful acts of war. On the other hand in a non-international armed conflict, no such privileges exist and hostile acts committed by state combatants against non-state groups on the territory of another state would not be entitled to any privileges. Be that as it may, to date, only prohibitions have been found to have evolved into the law applicable in non-international conflicts and not privileges such as killing or detaining enemy combatants.575 Jean Pictet however also notes that ‘it must be acknowledged that some [states] evade their responsibilities simply by denying the existence of an armed conflict’.576 The UN Secretary-General in his analytical report to the United Nations Commission on Human Rights also shares this criticism. He submits that “while Common Article 3 does not define ‘armed conflicts not of an international character’, in practice this wording has left room for Governments to contest its applicability to situations of internal violence inside their countries”.577 However, it should be noted that the existence of an armed conflict does not depend on the recognition of the parties thereof but rather on the developments on the ground. Moreover, exactly this absence of a clear-cut definition of ‘armed conflict not of an international character’ and the absence of criteria governing the applicability of Common Article 3 have permitted the development of this concept in international humanitarian law since 1949. Heike Spieker states that: “[t]he positive effect of a lack of agreed distinctive criteria is the flexibility provided by such a lacuna. Doors might be opened to apply international humanitarian law in situations which traditionally would not necessarily qualify as non-international armed conflicts. In 574 Article 4 of the Third Geneva Convention sets out the test for the distinction between “privileged” and “unprivileged” (also referred to as “lawful” and “unlawful”) combatants. In order for members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, to be recognized as lawful combatants they must fulfill the following conditions: (i) that of being commanded by a person responsible for his subordinates; (ii) that of having a fixed distinctive sign recognizable at a distance; (iii) that of carrying arms openly; and (iv) that of conducting their operations in accordance with the laws and customs of war. 575 Cf. John Cerone, ‘Jurisdiction and Power: The Intersection of Human Rights Law and the Law of Non-International Armed Conflict in an Extraterritorial Context’, supra note 563, pp. 72 – 128. 576 Cf. Jean Pictet, Developments and Principles of International Humanitarian Law, supra note 570, p. 47. It should be noted however, that the existence of an armed conflict does not depend on its recognition by the parties involved but rather on the situation on the field. 577 Cf. Report of the Sub-Commission on Prevention of Discrimination and Protection of Minorities, Minimum Humanitarian Standards: Analytical Report of the Secretary General Submitted pursuant to Commission on Human Rights Resolution 1997 / 21, UN Doc. E / CN.4 / 1998 / 87, 5 January 1998, para. 74.

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theory, weakness in protecting civilian population and discretion in qualifying armed hostilities are balanced by an increased flexibility and an enhancement of the protection of the civilian population in non-international armed conflicts.”578

However, generally, some of these shortcomings were addressed in the 1977 APs to the 1949 Geneva Conventions.579 Further, it should be noted that many of the provisions of AP II are now considered to be part of customary international law and thus binding on all parties to non-international armed conflicts. According to the ICRC, such rules include inter alia the prohibition on attacks on civilians, the prohibition of attacks on objects considered indispensable to the survival of the civilian population, the obligation to respect the fundamental rights of persons who are not taking a direct part in hostilities or are no longer taking a direct part in hostilities, including persons placed hors de combat and the prohibition of forced movement of civilians, and specific protection for women and children.580 Nevertheless, it must be clear that the applicability of international humanitarian law to armed groups in non-international armed conflicts in no way gives any particular legitimacy to the armed groups concerned.581

III. The Applicability of Article 3 of the SCSL Statute The wording in Article 3 of the SCSL Statute is identical to that found in Article 4 of the ICTR Statute. In this light, it should be noted that although the UN Security Council in creating the ad hoc Tribunals and adopting their statutes thought that the statutes were in full compliance with the fundamental criminal law principle of nullum crimen sine lege, the UN Secretary-General in 1995 took a contrary position. He described Article 4 of the ICTR Statute relating to the violations of Article 3 common to the 1949 Geneva Conventions and AP II of 1977, as a provision 578 Cf. Heike Spieker, Twenty-fifth Anniversary of Additional Protocol II, in: H. Fischer / Avril McDonald (eds.), 4 YIHL, T.M.C. Asser Press, The Hague, 2001, p. 141. 579 Cf. Larissa J. van den Herik, The Contribution of the Rwanda Tribunal to the Development of International Law, supra note 425, p. 202. Article 1(1) of AP II states that the Protocol ‘develops and supplements Article 3 common to the Geneva Conventions of 12 August 1949 without modifying its existing conditions of application’. The first paragraph of the preamble emphasizes the importance of Common Article 3 by stating that: ‘the humanitarian principles enshrined in Article 3 common to the Geneva Conventions of 12 August 1949 constitute the foundation of respect for the human person in cases of armed conflict not of an international character’. 580 Cf. ICRC, Increasing Respect for International Humanitarian law in Non-International Armed Conflicts, Geneva, February 2008, p. 9. 581 Cf. Ray Murphy, United Nations Military Operations and International Humanitarian Law: What Rules Apply to Peacekeepers, supra note 558. See also UK Ministry of Defence, The Manual of the Law of Armed Conflict, OUP, Oxford, 2004, p. 384. According to the UK Ministry of Defence, ‘although Common Article 3 specifically provides that its application does not affect the legal status of the parties to a conflict, states have been, and always will be, reluctant to admit that a state of armed conflict exists’.

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which ‘for the first time criminalizes Common Article 3’.582 Therefore, at the time of the creation of the ad hoc Tribunals, at least as per the UN Secretary-General, the violation of Common Article 3 was not criminalized. Although Common Article 3 does not explicitly criminalize the violation of its provisions nor does it represent grave breaches of the Conventions – at least in light of the Fourth Geneva Convention – the ICTY Appeals Chamber in the Tadic case held that regardless of the international or non-international nature of the conflict, the alleged crimes did involve individual criminal responsibility.583 The first binding international provision that expressly criminalized the violations of international humanitarian law committed in an internal armed conflict is Article 4 of the ICTR Statute.584 With this backdrop, it is rather clear that Article 3 of the SCSL Statute that criminalizes the violation of Article 3 common to the Geneva Conventions and AP II, did not have any legal uncertainties as to its applicability. Having said that, in view of the fact that AP II is only applicable in non-international armed conflicts, it is essential at this point to consider the nature of the conflict in Sierra Leone.

IV. The Nature of the Conflict in Sierra Leone Although the Special Court only has jurisdiction over those crimes enlisted in its Statute (which contains provisions applicable in both international and non-international armed conflicts), thereby rendering the discussion on the nature of the conflict in Sierra Leone prima facie irrelevant, a pedantic analysis of the Statute renders such a discussion worthwile. This is so because, certain crimes such as those that fall under AP II (e.g. collective punishment, acts of terrorism, pillaging etc) are only applicable in non-international armed conflicts. Hence, acts that have been prosecuted under these provisions would only be permissible if the conflict was found to be non-international in nature. However, as I argue elsewhere in this work, although the Special Court found that the conflict in Sierra Leone was non-international in nature, this finding is only partly correct. There are certain indicia of prima facie evidence that render the conflict, at least in part, to be an international armed conflict. In which case, AP II would not be applicable in these circumstances. 582 Cf. Report of the Secretary General Pursuant to Paragraph 5 of Security Council Resolution 955 (1994), 13 February 1995, UN Doc. S / 1995 / 134, para. 12. 583 ICTY, Tadić Appeal Decision on Jurisdiction, para. 129. The jurisprudence of the ad hoc tribunals has been consistent on this issue. See ICTY, The Prosecutor v. Delalić et al., Case No IT-96 – 21-T, Judgment, 16 November 1998, para. 308; ICTR, Akayesu Trial Judgment, para. 731. The jurisprudence of the ICTY holds that a non-international armed conflict occurs whenever there is “protracted armed violence between governmental authorities and organized armed groups or between such groups within a state” (Tadić Appeal Decision on Jurisdiction, para. 70). 584 Cf. Larissa J. van den Herik, The Contribution of the Rwanda Tribunal to the Development of International Law, supra note 425, p. 204.

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Admittedly there are provisions applicable in international armed conflicts that would cover the same acts, however for the sake of the certainty of the law, it would be appropriate to then apply such provisions.

1. International or Non-international Armed Conflict? a) General Remarks While it is relatively easier to determine whether an international armed conflict exists i.e. the resort to armed force between two or more states, the determination of an internal armed conflict turns out to be more difficult. This is so because, in order to determine that a conflict was of an internal nature one has to be able to distinguish between riots, isolated and sporadic acts of violence and major internal armed conflicts which require the application of humanitarian law as against human rights law.585 It must be noted that internal disturbances and tensions (such as riots, isolated and sporadic acts of violence, or other acts of a similar nature) do not amount to a non-international armed conflict.586 While the conflict in Sierra Leone was of such brutality and intensity that no one would dare to question whether it was an armed conflict or isolated sporadic acts of violence, the importance of this distinction between internal disturbances and non-international armed conflicts cannot be overemphasized. Olásolo in the same vein submits that given the fact that the existence of an armed conflict is a conditio sine qua non for the application of international humanitarian law and, thus, for the commission of war crimes resulting from their grave breaches, there is utmost need for the clear determination of the criteria to distinguish between situations of armed conflict and situations of internal disturbances such as riots, isolated and sporadic violence in which international humanitarian law is not applicable.587 The Inter-American Commission on Human Rights in the Juan Carlos v. Argentina case, defined internal disturbances as “situations in which there is no non-international armed conflict as such, but there exists a confrontation within a country, which is characterized by a certain seriousness or duration and which involves acts of violence”. It further stated that “in these situations, which do not necessarily degenerate into open struggle, the authorities in power call upon extensive police forces, or even armed forces, to restore internal order”.588

585 Cf. Lindsay Moir, Particular Issues Regarding War Crimes in Internal Armed Conflicts, in: José Doria / Hans-Peter Gasser / Cherif Bassiouni (eds.), The Legal Regime of the International Criminal Court, Essays in Honour of Professor Igor Blishchenko, Martinus Nijhoff Publishers, Leiden, Boston 2009, pp. 611 – 618. 586 Cf. Manual on the Law of Non-International Armed Conflict, with Commentary, supra note 549, p. 2. 587 Cf. Héctor Olásolo, Unlawful Attacks in Combat Situations, From the ICTY’s Case Law to the Rome Statute, Martinus Nijhoff Publishers, Leiden, Boston 2008, p. 30.

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The ICRC in an opinion paper proposed a definition of non-international armed conflict, which, according to it, reflects the strong prevailing legal opinion. Non-international armed conflicts could be defined – according to the ICRC – as: “protracted armed confrontations occurring between governmental armed forces and the forces of one or more armed groups, or between such groups arising on the territory of a State [party to the Geneva Conventions]. The armed confrontation must reach a minimum level of intensity and the parties involved in the conflict must show a minimum of organisation.589 However, Common Article 3 fails to provide a definition as to what amounts to a non-international armed conflict and merely states that it is to apply ‘in the case of armed conflict not of an international character’.590 According to the ICRC commentary, the drafters of this provision did not foresee for it to be applicable in acts of armed violence such as riots, isolated and sporadic violence but rather intended for it to be applicable in the context of armed conflicts between two or more sides albeit within the territory of only one State.591 The terminology of Common Article 3 thus lacks objective criteria and serves as a residual provision. The Special Court’s Appeals Chamber interprets Common Article 3 more optimistically as defining the fundamental guarantees of humane treatment: “All the fundamental guarantees share a similar character. In recognizing them as fundamental, the international community sets a benchmark for the minimum standards for the conduct of armed conflict.”592

588 Juan Carlos Abella v. Argentina, Case 11.137, Report Nº 55 / 97, Inter-Am. C.H.R., OEA / Ser.L / V / II.95 Doc. 7 rev. at 271 (1997) http: //www1.umn.edu/humanrts/cases/1997/ argentina55-97a.html. 589 ICRC, “How is the Term ‘Armed Conflict’ Defined in International Humanitarian Law?” International Committee of the Red Cross (ICRC) Opinion Paper, Geneva, March 2008, p. 5. 590 Cf. J. Pictet, Commentary on I Geneva Convention of the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, ICRC, Geneva, 1952, pp. 49 – 50 (emphasis added). 591 Cf. J. Pictet, Commentary on II Geneva Convention of the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, ICRC, Geneva, 1960, p. 33. See also Cf. J. Pictet, ibid., p. 43, wherein it is stated that for common Article to be applicable in a non-international armed conflict, it is required that “the Party in revolt against the de jure Government possesses an organized military force, an authority responsible for its acts, acting within a determinate territory and having the means of respecting and ensuring respect for the Convention”. 592 SCSL SCSL, The Prosecutor v. Samuel Hinga Norman, Case No. SCSL-2004-14AR72(E), Appeals Chamber Decision on Preliminary Motion Based on Lack of Jurisdiction (child recruitment), 31 May 2004, para. 28, citing SCSL, The Prosecutor v. Norman, Case No. SCSL-03-08-PT, Fourth Defence Preliminary Motion based on Lack of Jurisdiction (Child Recruitment), para. 65.

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b) Special Court Jurisprudence At the early stages of the Special Court, the accused Moinina Fofana challenged the subject matter jurisdiction of the Special Court inter alia on the basis of the nature of the conflict in Sierra Leone. Fofana averred that although the Special Court clearly has jurisdiction over violations of international humanitarian law, Articles 3 and 4 of the SCSL Statute had the effect of limiting its jurisdiction to internal armed conflicts only. Further, according to him, during the period relevant to the indictment against him, the conflict had become international in nature with Liberian authorities exercising control over the RUF and AFRC; ECOMOG and Nigerian forces were actively participating in the conflict.593 Initially, the Special Court’s Appeals Chamber in dealing with this Motion pursuant to Rule 72(E) abstained from expressly finding that the conflict in Sierra Leone was non-international in nature. It considered such an express finding as not being necessary for the application of Common Article 3.594 In examining the issue of the nature of the conflict in Sierra Leone with regard to the applicability of Common Article 3 and AP II, the Special Court’s Appeals Chamber held that “Any obstacle to the application of Article 3 [of the SCSL Statute] to crimes committed during an international armed conflict is nevertheless overcome if the actual violations included in Article 3, sub-paragraphs (a) to (h), are found to be part of customary international law applicable in an identical fashion to both internal and international conflicts.”595

It further observed that “[e]ven though the rules applicable in internal armed conflict still lag behind the law that applies in international conflict, the establishment and work of the ad hoc Tribunals has significantly contributed to diminishing the relevance of the distinction between the two types of conflict. The distinction [between the rules applicable in internal armed conflict and the rules applicable in international conflict] is no longer of great relevance in relation to the crimes articulated in Article 3 of the Statute as these crimes are prohibited in all conflicts. Crimes during internal conflict form part of the broader category of crimes during international armed conflict.”596

In the same vein, the ICTY Appeals Chamber having stated that Common Article 3 evolved from conventional into customary international law clearly specified that not all rules applicable to international armed conflicts apply in non-international armed conflicts. It pointed out that 593 SCSL, The Prosecutor v. Moinina Fofana and Allieu Kondewa, Case No. SCSL-04-14AR72(E), Appeals Chamber Decision on Preliminary Motion on Lack of Jurisdiction Materiae – Nature of the Armed Conflict, 25 May 2004, para. 2. 594 Ibid., para. 21. 595 Ibid., para. 21. 596 Ibid., para. 25, citing Frits Kalshoven and Liesbeth Zegveld, Constraints on the Waging of War. An Introduction to International Humanitarian Law, ICRC, Geneva, 2001, p. 188; and Rodney Dixon / Karim Kahn / Richard May (eds.), Archbold International Criminal Courts Practice, Procedure and Evidence, 3rd edn, Sweet & Maxwell, London, 2003, paras. 11 – 26.

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“[t]he emergence of the aforementioned general rules on internal armed conflicts does not imply that internal strife is regulated by general international law in all aspects. Two particular limitations may be noted: (i) only a number of rules and principles governing international armed conflicts have gradually been extended to apply to internal conflicts; and (ii) this extension has not taken place in the form of a full and mechanical transplant of those rules to internal conflicts; rather, the general essence of those rules, and not the detailed regulation they may contain, has become applicable to internal conflicts.”597

The Special Court’s Appeals Chamber in concurring with the jurisprudence of the ad hoc Tribunals consolidated the existing stance in international humanitarian law i.e. since the 1930s the distinction between belligerency and insurgency has gradually become more and more blurred with international legal rules regulating internal armed conflict – albeit not in its entirety. Nevertheless, considering the fact that not all rules applicable in international armed conflicts are applicable in internal armed conflicts, such a finding is not only advisable but imperative. Furthermore, bearing in mind that armed conflicts which on the face of it appear to be non-international in nature, could however turn out to be of an international character under certain circumstances, the Special Court ought to have found the nature of the conflict in Sierra Leone as international, at least during certain periods when foreign state troops were involved. The ICTY in the Tadic case held that armed conflicts which emerge within the territory of a State may become international if: (1) the armed forces of a third State directly participate in such conflict (direct intervention) or (2) any of the parties to the conflict acts on behalf of a third State (indirect intervention).598 The ICJ in the Nicaragua case addressed the issue on the criteria that must be met in order for a third State to be regarded as indirectly intervening in an armed conflict which does not take place within its territory. In so doing the ICJ applied the effective control test to decide on the claim brought by Nicaragua that the United States (US) had indirectly intervened in favor of the organized armed group (Contra Nicaraguense) which was fighting against the armed forces of the Government of Nicaragua. The ICJ found that the US was responsible for unlawfully interfering in the internal affairs of the Nicaraguan State since the US had effective control over the Contra Nicaraguense.599 The ICTY case law has however rejected the effective control test and adopted the overall control test.600 In the Tadic Appeals Chamber Judgment, it was held that: ICTY, Tadić; Appeal Decision on Jurisdiction, para. 126. ICTY, Tadić Trial Judgment, para. 84. See also Héctor Olásolo, ‘Unlawful Attacks in Combat Situations, From the ICTY’s Case Law to the Rome Statute’, supra note 587, pp. 54 et seq. 599 ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), 27 June 1986, ICJ Rep. 14, pp. 64 – 65. 597 598

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“[i]t must be proved that the State wields overall control over the group, not only by equipping and financing the group, but also by coordinating or helping the general planning of its military activity. […] However, it is not necessary that, in addition, the State should also issue, either to the head or to members of the group, instructions for the commission of specific acts contrary to international law.”601

It is worthy to note that the overall control requisite is only applicable when the group in question that is allegedly controlled by a third State is an organized armed group. In order to establish that the said group is an organized armed group, certain criteria must be met: (1) the group must act under a responsible command; (2) the group must have a disciplinary system which could ensure that its members respect international humanitarian law and (3) the group must be structured in such a way that it is able to plan and execute concerted military operations for a protracted period of time.602 Similarly, the Lubanga case before the ICC in relying on Common Article 2 to the Geneva Conventions,603 adopted the ICTY overall control test and held that: “[w]here a State does not intervene directly on the territory of another State through its own troops, the overall control test will be used to determine whether armed forces are acting on behalf of the first State. The test would be met where the first State has a role in organizing, co-coordinating or planning the military actions of the military group, in addition to financing, training and equipping the group or providing operational support to it”.604 Bearing in mind that the ICC

600 ICTY, Tadić Appeal Judgment, para. 141; ICTY, The Prosecutor v. Aleksovski, Case No. IT-95-14 / I-A, Appeal Judgment, 24 March 2000, para. 147, wherein the Appeals Chamber in justifying its adoption of a lower standard than that applied by the ICJ held that “to the extent that it provides for greater protection of civilian victims of armed conflicts, this different and less rigorous standard is wholly consistent with the fundamental purpose of Geneva Convention IV which is to ensure ‘protection of civilians to the maximum extent possible”. See also ICTY, The Prosecutor v. Delalić et al., Case No. IT-96-21-A, Appeal Judgment, 20 February 2001. 601 ICTY, Prosecutor v. Dusko Tadić, Case No. IT-94-I-A, Appeal Judgment, 15 July 1999, para. 131. For more on the discussion on the effective control test and the overall control test, see Robert Heinsch, Die Weiterentwicklung des humanitären Völkerrechts durch die Strafgerichthöfe für das ehemalige Jugoslawien und Ruanda, Zur Bedeutung von internationalen Gerichtsentscheidungen als Rechtsquelle des Völkerstrafrechts, in Bochumer Schriften zur Friedenssicherung und zum Humanitären Völkerrecht, 57, BWV, Berlin, 2007, pp. 96 et seq. 602 Héctor Olásolo, Unlawful Attacks in Combat Situations, From the ICTY`s Case Law to the Rome Statute, supra note 587, p. 60. 603 Common Article 2 to the Geneva Conventions, which is applicable to international armed conflicts, provides that: In addition to the provisions which shall be implemented in peacetime, the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them. The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance. Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations. They shall furthermore be bound by the Convention in relation to the said Power, if the latter accepts and applies the provisions thereof.

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Statute is perceived as reflective of the consensus with regard to international humanitarian law, it would be right to say that the right test to apply in the determination of the nature of a conflict is the overall control test. Therefore, the fact that an organized armed group was supported by a foreign State should trigger further investigation and analysis in order to establish whether the foreign State exercised effective control or overall control over the organized group – thereby rendering the armed conflict international in nature. This is the same view adopted by the drafters of the Manual on the Law of Non-International Armed Conflict, wherein it is clearly stated that: “[w]hen a foreign State extends its military support to the government of a State within which a non-international armed conflict is taking place, the conflict remains non-international in character. Conversely, should a foreign State extend military support to an armed group acting against the government, the conflict will become international in character.”605 As concerns the situation at the Special Court regarding whether or not the conflict in Sierra Leone was international or internal in nature, there exist a few indicia, which in my view render the conflict – at least during certain periods – international in nature. On the outset, Charles Taylor, the former head of State of Liberia is charged inter alia pursuant to Article 6(3) SCSL Statute: “while holding positions of superior responsibility and exercising command and control over subordinate members of the RUF, AFRC, AFRC / RUF Junta or Alliance, and / or Liberian fighters is individually responsible for the crimes referred in Articles 2, 3 and 4 of the SCSL Statute”.606 Further, the Trial Chamber in the RUF case established that the NPFL under the leadership of Charles Taylor “provided important military and logistical resources to the RUF thereby creating an intimate link between the civil wars in Liberia and Sierra Leone”.607 Likewise, there were Nigerian forces that were – not acting under the ECOMOG mandate – involved in the conflict and had their headquarters at Kossoh Town, near Freetown.608 Further, a close assessment of the ECOMOG forces establishes that Nigeria provided more than 80 % of ECOMOG’s troops with 12000 of the 13000 man force originating from Nigeria.609 Thus there are sufficient indicia 604 ICC, The Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01 / 04-01 / 06, Decision on the Confirmation of the Charges, 29 January 2007, paras. 210 – 211. See also ICC, The Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01 / 04-01 / 06, Judgment pursuant to Article 74 of the Statute, 14 March 2012, para. 541. 605 Cf. Manual on the Law of Non-International Armed Conflict, with Commentary, supra note 549, p. 2. 606 SCSL, The Prosecutor v. Charles Ghankay Taylor, Case No. SCSL-2003-01-PT, Indictment, 7 March 2003, para. 34. See also Report of the Panel of Experts Appointed Pursuant to Security Council Resolution 1306 (2000), UN Doc. S / 2000 / 1195, 20 December 2000, on the links between diamonds, Liberia and Sierra Leone. 607 SCSL, The Prosecutor v. Isaa Sesay, Moris Kallon, Augustine Gbao, Case No. SCSL04-15-T, Judgment, 2 March 2009, para. 10. 608 Conflict Mapping in Sierra Leone, supra note 51, p. 48.

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that should have led the Special Court’s Appeals Chamber to establish that the conflict in Sierra Leone was at least partly international in nature. However, the presence and involvement of Nigerian troops needs to be assessed with particular caution in order to identify whether the fact that they were supporting the SLA or a renegade group from the SLA still has a substantial impact on the nature of the conflict. The Trial Chamber in the AFRC case in finding that the conflict in Sierra Leone was non-international in nature pointed out that there was not sufficient evidence before it that “proved beyond reasonable doubt that a third state intervened in the conflict either through its own troops or alternatively by exercising the requisite degree of overall control over some of the conflicts participants”.610 Bearing in mind that Charles Taylor is accused of crimes against humanity, violations of Common Article 3 and Other serious violations of international humanitarian law “while holding positions of superior responsibility and exercising command and control over subordinate members of the RUF, AFRC, AFRC / RUF Junta or Alliance, and / or Liberian fighters”,611 it would be rather irrational and inconsistent to arrive at two contradictory findings. The Special Court cannot find the conflict that took place in Sierra Leone to be non-international due to lack of sufficient evidence to proof that a third state intervened in the conflict and on the other hand find Charles Taylor, the Head of State of Liberia (at the time relevant to the indictment) guilty of crimes against humanity, violations of Common Article 3 and Other serious violations of international humanitarian law while holding positions of superior responsibility and exercising command and control over subordinate members of the RUF, AFRC, AFRC / RUF Junta. It would be premature to hastily conclude that the fact that Charles Taylor is charged as an individual, no responsibility can and should be attributed to the State of Liberia. Although the Special Court clearly does not have the authority to judge the responsibility of States, it is however competent to analyze the nature of the conflict in Sierra Leone, which would help in the certainty of the law. Having said that, it should be noted that by identifying the nature of the conflict, as being international, the Special Court would have been in a position to apply the entire law of international armed conflicts. However, as mentioned above, this would have deprived the Special Court from applying those provisions applicable to non-international armed conflicts. Further, as mentioned above, the contribution of the Special Court is also that it did make such a finding regarding the blurring of the distinction between the law 609 Cf. Adekeye Adebajo, Pax West Africana?, Regional Security Mechanisms, in: Adekeye Adebajo / Ismael Rashid (eds.), West Africa’s Security Challenges: Building Peace in a Troubled Region, Lynne Rienner Publishers, Boulder, Colorado, 2004. 610 SCSL, Brima, Kamara, Kanu Trial Judgment, para. 251. 611 SCSL, The Prosecutor v. Charles Taylor, Case No. SCSL-03-01-PT, Indictment, para. 34.

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applicable to international and non-international armed conflicts. This contribution would have been more substantial had it reached such a conclusion after having clearly established that the armed conflict did evolve from being non-international to being an international armed conflict at certain periods. The author hopes that the Special Court in the Charles Taylor case seizes this last opportunity to make a correct analysis and finding on the nature of the conflict in Sierra Leone. Admittedly this would have an impact on the crimes charged since although this salutary rapprochement can be lauded, not all rules apply to both forms of conflict. This would be the case with crimes that are only applicable in either nature of conflict.

2. The Impact of the ECOMOG and UNAMSIL Intervention As mentioned above, the conflict in Sierra Leone involved several warring factions. The use of the word warring factions in this case is generic and does not in any way mean that the author at this stage wishes to conclude that ECOMOG and UNAMSIL were actively taking part in the conflict. This would be the subject of the discussion that follows immediately and thus cannot be the object of a finding prior to having analyzed the issue. ECOMOG and UNAMSIL were – in general terms – peacekeeping forces that were involved in Sierra Leone during the 10 year conflict. Considering the fact that the level of their intervention differed and that they were on the ground during different periods of times, they would be analyzed separately.

a) ECOMOG Intervention The legal basis of ECOMOG is the ECOWAS Treaty that allowed ECOWAS to establish a regional peace and security observation system and peacekeeping forces where appropriate albeit without a standing military component.612 Although its direct military intervention in Sierra Leone began with the AFRC military Coup on 25 May 1997, it did not have an official mandate for Sierra Leone.613 ECOMOG’s mandate expanded gradually after the fruitless diplomatic negotiations carried out by the ECOWAS Committee of Five in 1997 as well as after the signing of the Lomé Peace Agreement.614 The issue at hand is whether the ECOMOG forces could be stricto sensu considered to be peacekeepers and whether they benefited from the protection awarded to peacekeepers during an armed conflict. Depending on the conclusion reached, it might be then necessary to analyze whether their presence in

612 Cf. Article 58(2)(f), Treaty oft he Economic Community of West African States. Available at: http: // www.comm.ecowas.int / sec / index.php?id=treaty&lang=en. 613 Conflict Mapping in Sierra Leone, supra note 51, p. 48. 614 Ibid., pp. 48 – 49.

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Sierra Leone during the conflict ought to have had an impact on the qualification of the nature of the conflict. An application of the basic principles of peacekeeping as identified by the Special Court, i.e. consent of the warring factions, impartiality and lacks of the use of force except for self-defence and for the fulfillment of the mandate leads us to answer in the negative the question whether the ECOMOG forces were peacekeepers. While it would be argued that the force used by the ECOMOG forces – albeit excessive – was only in fulfillment of their mandate, it is clear that their presence was not approved by all warring Sierra Leonean factions and they were not impartial.615 Hence, the ECOMOG forces were not welcomed by the rebel forces and they fought alongside the SLA. Despite the fact that they had a ‘sub-contracted’ mandate from the UN, they could at best be seen as an enforcement action and not as a peacekeeping force. Further, it was reported that during the war, ECOMOG forces were also involved in the commission of crimes.616 Be that as it may, the issue whether or not they were entitled to the protection given to civilians or civilian objects under the international law of armed conflict is something worthy of discussion. There are two schools of thought regarding whether the protection is limited to peacekeepers involved in a UN peacekeeping operation only. One school of thought is of the opinion that the rule applies to all forces involved in a peacekeeping role provided they were not involved in direct hostilities and regardless of whether or not the operation was established by the UN.617 The other one is on the view that the formulation of the wordings in the ICC Statute and SCSL Statute suggest a restrictive application of the rule, i.e. only applicable to peacekeeping operations established by the UN.618 In this regard, Bangura submits that without looking into the provisions of the UN Charter, a literary interpretation of the ICC and SCSL Statutes (Articles 8[2][b] [iii], 8[2][e][iii] and Article 4 respectively) excludes peacekeepers whose mission is not authorized by the UN.619 The wordings: “[i]ntentionally directing attacks against

615 Cf. Abidjan PeaceAccord, supra note 69. This Agreement required that all foreign forces leave Sierra Leone.The Lomé Peace Agreement however made provision for the establishment of a Joint Monitoring Commission to be chaired by UNOMSIL with representatives of the Government of Sierra Leone, RUF, CDF, and ECOMOG. The ECOMOG forces nevertheless had been directly involved in hostilities prior to the Lomé Peace Agreement. 616 Cf. W. Alade Fawole, Military Power and Third Party Conflict Mediation in West Africa: The Liberia and Sierra Leone Case Studies, 26, Obafemi Awolowo Univ. Press, 2001, p. 48. 617 Cf. Jean-Marie Henckaerts / Louise Doswald-Beck, Customary International Humanitarian Law, Vol. I: Rules, International Committee of the Red Cross, 2005, pp. 112, 114. 618 Cf. Mohamed Bangura, ‘Prosecuting the Crime of Attack on Peacekeepers’, 23 LJIL 1, 2010, p. 172. 619 Idem.

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personnel […] involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations […]” do not amount to an exclusion of non-UN missions since Chapter VIII of the UN Charter indeed does provide for a role to be played by regional organizations in the maintenance of international peace and security. Hence, regional organizations should also benefit from this protection so long as they do not engage in direct hostilities during the conflict except for self-defence and for the sake of fulfilling their mandate. Chapter VIII of the UN Charter makes provision for regional bodies to play a role in the maintenance of international peace and security.620 Thus, depriving peacekeeping missions mandated by these regional organizations of the same protection awarded to UN peacekeepers and associated personnel would greatly undermine the role that the UN Charter envisages for regional bodies to play vis-à-vis the maintenance of international peace and security. Having said that, and bearing in mind that ECOMOG forces were directly involved in the hostilities, it is clear in the author’s view that they were to be regarded as combatants and not entitled to the protection granted to civilians under the international law of armed conflict. Therefore, as combatants during the conflict and originating from another state, it is necessary to analyze whether this had or should have had an impact on the nature of the conflict. The jurisprudence of the Special Court – consistent with that of the ICTY holds that an internal conflict becomes internationalized if “another State intervenes in that conflict through its troops, or alternatively if […] some of the participants in the internal armed conflict act on behalf of that other State.”621 In the RUF case, the Sesay and Kallon Defence put forward an argument that the involvement of ECOMOG, a military force comprising soldiers from various West African States fighting under a mandate from ECOWAS, transformed the armed conflict from an internal to an international armed conflict.622 The RUF Trial Chamber in 620 Cf. Article 52, Charter of the United Nations. However, the Charter is silent as to how these regional organizations could have an impact on the maintenance of international peace and security. In the post-election crises in Ivory Coast, the regional body ECOWAS initially threatened to use force to ensure that the incumbent President who apparently lost the elections leaves power. Such an intervention would ultimately not be able to have amounted to a peacekeeping intervention. 621 SCSL, The Prosecutor v. Isaa Sesay, Moris Kallon, Augustine Gbao, Case No. SCSL04-15-T, Judgment, 2 March 2009, para. 972 referring to ICTY, The Prosecutor v. Tadić, Case No. IT-94-1-AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, para. 70. See also Dietrich Schindler, The Different Types of Armed Conflict According to the Geneva Conventions and Protocols, 163 RCADI, 1979-II, p. 131. 622 SCSL, Sesay, Kallon, Gbao Trial Judgment, para. 972, referring to Kallon Final Trial Brief (SCSL, The Prosecutor v. Kallon, Case No. SCSL 03-07, Defence Final Trial Brief, paras. 50 – 51) and Sesay Final Trial Brief (SCSL, The Prosecutor v. Sesay, Case No. SCSL03-05, Defence Final Trial Brief, para. 31). The Sesay Defence argued that an internal and international conflict coexisted in Sierra Leone and therefore characterized the armed conflict as “mixed”.

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addressing this argument concluded that, “the fact that ECOMOG fought against the AFRC / RUF at the behest of the internationally recognized Kabbah Government, its intervention cannot be classed as recourse to armed force between two States”.623 This finding goes in line with one school of thought that is of the view that the mere fact that troops under the auspices of an international organization intervene in a conflict does not suffice to render the conflict an international conflict. According to this approach, the nature of the parties fighting against each other plays a great role and the fact that the international troops join in the conflict is irrelevant.624 If one interprets the RUF Trial Chamber finding as implying that the fact that the international forces intervened on the side of the “internationally recognized Kabbah Government” prevents them from being regarded as transforming the nature of the conflict to an international one, then it would mean that an important element here is whether or not the Government of a State involved in a conflict is “internationally recognized”. In the same vein, the side on which the international force intervenes is also a prima facie determinant factor. This approach is in my view flawed for it suggest that the nature of a conflict somewhat depends on whether or not the Government of a State involved in a conflict is internationally recognized or not. However, another interpretation of the RUF Trial Chamber jurisprudence is that any intervention by a group that does not qualify as a State cannot transform a conflict from a non-international to an international one. Breitegger concludes that the latter interpretation is more in accordance with international humanitarian law which indeed requires that an armed conflict be between at least two States in order for it to be characterized as an international armed conflict.625 Applying this interpretation to the Charles Taylor case, would be very interesting since it is not yet clear what the outcome of this case would be. The Prosecution of the Special Court has charged Charles Taylor of crimes against humanity, violation of Common Article 3 and other serious violations of international humanitarian law “while holding positions of superior responsibility and exercising command and control over subordinate members of the RUF, AFRC, AFRC / RUF Junta or Alliance, and / or Liberian fighters”.626 623 SCSL, Sesay, Kallon, Gbao Trial Judgment, para. 973. This is the same approach taken in the AFRC case, wherein the Trial Chamber found that the “[t]here [was no evidence before it] that proves beyond reasonable doubt that a third State intervened in the conflict, either through its own troops or alternatively by exercising the requisite degree of overall over some of the conflict’s participants to find that they acted on its behalf” (SCSL, Brima, Kamara, Kanu Trial Judgment, para. 251). 624 Cf. Alexander Breitegger, Aktuelle Beiträge der Internationalen Strafjustiz zur Entwicklung des humanitären Völkerrechts, in 11 ZIS, 2010, p. 716, available at http: // www.zisonline.com / ?sektion=2&language=ger. 625 Ibid. 626 SCSL, The Prosecutor v. Charles Ghankay Taylor, Case No. SCSL-03-01-PT, Second Amended Indictment, 29 May 2007, para. 34.

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In addressing this issue within the context of the RUF case, its Trial Chamber endorsed the principle that an organized armed group may be said to be acting on behalf of another State when that State exercises overall control over the group. Therefore in order to establish that the Republic of Liberia exercised overall control over the RUF, two elements needed to be satisfied: “(i) [that the Republic of Liberia] provided financial and training assistance, military equipment and operational support to the RUF, and (ii) [that the Republic of Liberia] participated in the organization, co-ordination or planning of military operations.”627

It however concluded that the armed conflict in Sierra Leone was of a non-international character since the only evidence adduced before it relating to Taylor’s NPFL and the RUF was not sufficiently compelling and could not help in establishing the nature and extent of this relationship after July 1997.628 Nevertheless, it remains to be seen what finding the Charles Taylor case would reach and what impact that would have on the overall qualification of the conflict in Sierra Leone.

b) UNAMSIL Intervention As already mentioned above UNAMSIL replaced ECOMOG in October 1999.629 It was set up in the aftermath of the Lomé Peace Agreement pursuant to UNSC Resolution 1270 of 22 October 1999. It was set up to cooperate with the Government of Sierra Leone and the other parties to the Peace Agreement in the implementation of the Agreement and to assist the Government of Sierra Leone in the implementation of the disarmament, demobilization and reintegration plan.630 UNAMSIL’s strength gradually increased as ECOMOG forces withdrew and they were ultimately targeted by the RUF / AFRC forces, who in May 2000 took 500 UNAMSIL peacekeepers as hostages.631 Applying the basic principles set out by the Special Court, one would reach the same finding as the Special Court in so far as it relates to the consent principle, since the peacekeepers were present in Sierra Leone on the basis of a UNSC Resolution and were mandated to cooperate with the Government of Sierra Leone and SCSL, Sesay, Kallon, Gbao Trial Judgment, para. 975. Ibid., paras. 976 – 977. The Trial Chamber found that prior to July 1997, the NPLF was itself a rebel organization and hence could not be regarded as representing the Republic of Liberia. 629 Supra note 108. UNAMSIL was preceded in 1998 by the United Nations Observer Mission in Sierra Leone (UNOMSIL) with a mission to monitor the military and security situation in Sierra Leone and the disarmament and demobilization of former combatants in Sierra Leone. 630 UNSC Resolution 1270, Doc. S / RES / 1270, 22 October 1999, available at http: // daccess-dds-ny.un.org/doc/UNDOC/GEN/N99/315/02/PDF/N9931502.pdf?OpenElement. 631 Conflict Mapping in Sierra Leone, supra note 51, p. 50. 627 628

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the other parties to the Peace Agreement in the implementation of the Agreement. However, as concerns the principle of impartiality, it is questionable whether the mission by taking sides with a faction did not breach its impartiality and engage on the side of one faction. Such action would deprive it of any protection since it has become a party to the conflict and is then a legitimate target.

3. The Involvement of Foreign Mercenaries As stated above,632 the conflict in Sierra Leone also involved foreign mercenaries such as the Gurkha Security Guards Limited (GSG), a British company based in the Channel Islands and hired by the NPRC Government to train and advise the SLA in jungle warfare tactics and provide security for the SLA base at Camp Charlie, near Mile 91.633 Other foreign mercenaries were the Executive Outcomes, a South African private military company engaged in May 1995 to train SLA forces634 and Sandline International, a British private military company linked to both Executive Outcomes and a few commercial mining companies.635 These foreign mercenary forces were all assisting one side of the conflict in Sierra Leone, in particular the Government. The Kallon Defence raised the argument that the involvement of UNAMSIL and the private security company Executive Outcomes internationalized the armed conflict.636 In assessing the nature of the conflict in light of the involvement of foreign mercenaries, in particular Executive Outcomes, the RUF Trial Chamber concluded that their presence could not transform the nature of the conflict.637 Therefore, in accordance with the principle that an organized armed group may be said to be acting on behalf of another State when that State exercises overall control over the group, the only way the involvement of foreign mercenaries could have an impact on the characterization of the conflict, is if it could be established that they were acting on behalf of another State. In this case it has not been determined that the foreign mercenary forces were acting on behalf of another State. Consequently, their interven632 See supra Chapter 1. Subsequent to the reinstatement of the democratically elected Kabbah government, UN peacekeepers were sent to ensure the end to the conflict, and support the Kabbah government. Cf, UN Seciruty Council Res. 1270, Doc. S / RES / 1270, 22 October 1999. However, these UN forces were inefficient, thus resulting in the UK sending troops to Sierra Leone. The justification for the presence of British forces in Sierra Leone varied over time. It ranged from the protection of British nationals. 633 Cf. Alex Vines, ‘Gurkhas and the Private Security Business in Africa’, in: J. Cillers / P. Mason (eds.), Peace, Profit and Plunder: The Privatization of Security in War-Torn African Societies, Pretoria, pp. 129 – 133. 634 Cf. Associated Press Worldstream, 11 May 1995. 635 Cf. Sir Thomas Legg, KCB QC and Sir Robin Ibbs, KBE; Report of the Sierra Leone Arms Investigation, 27 July 1998, para. 4. 636 SCSL, Sesay, Kallon, Gbao Trial Judgment, footnote 1896. 637 Ibid., footnote 1896.

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tion during the conflict in Sierra Leone has no legal consequence on the characterization of the conflict. This Special Court finding consolidates the existing ICTY Tadic jurisprudence which generally reinforces the application of Common Article 2 of the 1949 Geneva Conventions, which states that an international armed conflict exists whenever there is resort to armed force between two or more High Contracting Parties.638

4. The British Intervention Subsequent to the reinstatement of the democratically elected Kabbah government, UN forces were sent to ensure an end to the conflict and provide support to the Kabbah government.639 However, the UN forces were ineffective, thus resulting in the UK deciding to send troops to Sierra Leone.640 The justification for this intervention varied over time ranging from the protection of British nationals,641 training the SLA to “build new, democratically accountable, and effective armed forces in Sierra Leone”,642 to repelling the rebels, restore the peace and rebuild the country.643 However, regardless of whatever justification, the fact is that British forces intervened in the conflict in Sierra Leone. Without assessing whether or not this intervention was justified and what role it played in bringing the conflict in Sierra Leone to an end, since this would be beyond the scope of this work, the relevant fact here is that there was indeed an intervention. The Tadic Appeals Judgment set out the parameters for establishing that a conflict is in fact international as follows: “[I]t is indisputable that an armed conflict is international if it takes place between two or more States. In addition, in case of an internal armed conflict breaking out on the territory of a State, it may become international (or, depending upon the circumstances, be international in character alsongside an internal armed conflict) if (i) another State intervenes in that conflict through its troops, or alternatively if (ii) some of the participants in the internal armed conflict act on behalf of that other State.”644

Hence, considering these parameters, the fact that the UK dispatched its forces to intervene in the conflict in Sierra Leone transforms – at least for the period of such 638 The Special Court held that reference to “High Contracting Parties” in this context refers exclusively to States (SCSL, Sesay, Kallon, Gbao Trial Judgment, para. 971). 639 Cf. UNSC Res. 1270, Doc. S / RES / 1270, 22 October 1999. 640 Kirsti Samuels, ‘Jus ad Bellum and Civil Conflicts: A Case Study of the International Community’s Approach to Violence in the Conflict in Sierra Leone’, 8 Journal of Conflict & Security Law 2, 2003, p. 331. 641 Ibid. 642 Ibid. 643 Ibid. 644 ICTY, Tadić Appeal Judgment, para. 84.

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intervention – the conflict in Sierra Leone from a non-international armed conflict to an international one. This would however not be the case if the UK forces were under the “operational control” of the the Sierra Leonean forces. This was not the case, hence, in the author’s view, the transformation of the conflict for at least this specific period to an international conflict. Following this logic, the armed conflict in Afghanistan that involves the ISAF troops (NATO-led forces in Afghanistan) fighting against the Talibans should be considered an international armed conflict. However, the German Generalbundesanwaltschaft, in considering the facts related to the ISAF air strikes of 4 September 2009 wherein several civilians were killed, was of the view that the conflict in Afghanistan was non-international in nature. Factors which seem to have played a role are the fact that the ISAF troops are acting in the interest of the Afghan government and are present there with Afghanistan’s consent.645 The author is not persuaded with this finding. Following the same logic as that used in reaching the conclusion that the conflict in Sierra Leone was – at least at for a certain period – international in nature, the armed conflict in Afghanistan should be classified as an international conflict.

5. Evaluation of Special Court Characterization of the Nature of the Conflict in Sierra Leone With regard to the characterization of the nature of the conflict in Sierra Leone, the AFRC Trial Chamber initially opined that such a finding was “immaterial to [the Special Court’s] jurisdiction as Articles 3 and 4 of the SCSL Statute apply where an armed conflict was in existence when the crimes were committed, regardless of whether such conflict was non-international or international in character”.646 While the travaux préparatoires do not expressly deal with the issue of the nature of the conflict, they are supportive of the assertion that drafters of the SCSL Statute had in mind an internal armed conflict.647 Further, the UN Secretary-General in his Report on the establishment of the Special Court seemed rather sure of the nature of the conflict. He submits in his Report that “[v]iolations of common article 3 of the Geneva Conventions and of article 4 of Additional Protocol II thereto committed in an armed conflict not of an international character have long been considered customary international law, and in particular since the establishment of the two international Tribunals, have been recognized as customarily entailing the individual criminal responsibility of the accused.”648

645 Cf. Kai Ambos, Afghanistan-Einsatz der Bundeswehr und Völker(straf)recht – Kommentar, 24 NJW, 2010, pp. 1725 – 1727. See also press report on the discontinuation of proceedings against Oberst Klein dated 19 April 2010, available at: http: //www.generalbundes anwalt.de/de/showpress.php?themenid=12&newsid=360. 646 SCSL, Brima, Kamara, Kanu Trial Judgment, para. 251. 647 Cf. Oxford Reports on International Law – ICL 22 (SCSL 2004), OUP, 2008, p. 7. 648 Cf. Report of the Secretary-General, 4 October 2000, supra note 15, para. 14.

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The overall approach of the Special Court has been to consider that the conflict in Sierra Leone was of a non-international nature.649 However, as discussed in detail above, the Special Court would be inconsistent in its jurisprudence if it, having found that there was not enough evidence before it to proof beyond reasonable doubt that the conflict was international in nature, later in the Taylor case, finds the contrary. It would be inconsistent to find him, as Liberian Head of State, guilty of crimes against humanity, violations of Common Article 3 and Other serious violations of international humanitarian law “while holding positions of superior responsibility and exercising command and control over subordinate members of the RUF, AFRC, AFRC / RUF Junta or Alliance, and / or Liberian fighters”.650 Further, the intervention of foreign troops in the course of the conflict is undisputed and should have at least partly had an impact on the determination of the nature of the conflict.

V. Temporal and Territorial Applicability of Common Article 3 and AP II Generally, the scope of protection that international humanitarian law grants to victims in non-international armed conflicts has been criticized as being insufficient.651 This can be explained by the fact that the two legal instruments that particularly strive to protect such victims, i.e. Article 3 common to the Geneva Conventions for the protection of victims of war and the APs to the Geneva Conventions,652 do not contain any implementation or enforcement provisions.653 Be that as it may,

649 SCSL, Sesay, Kallon, Gbao Trial Judgment, para. 977; Brima, Kamara, Kanu Trial Judgment, para. 251. 650 See Chapter Five, Section (IV) sub (1) above for discussion on the nature of the conflict in Sierra Leone and its characterisazion by the Special Court. 651 Roman Boed, Individual Criminal Responsibility for Violations of Article 3 Common to the Geneva Conventions of 1949 and of Additional Protocol II Thereto in the Case Law of the International Criminal Tribunal for Rwanda,13 CLF, 3,2002, pp. 293 – 322. 652 Cf. Geneva Conventions I, II, III and IV. See also AP II. 653 Cf. Bruno Simma / Andreas L. Paulus, The Responsibility of Individuals for Human Rights Abuses in Internal Conflicts: A Positive View, 93 Am. J. Int’l L. 2, 1999, pp. 302, 310, 311; Roman Boed, Individual Criminal Responsibility for Violations of Article 3 Common to the Geneva Conventions of 1949 and of Additional Protocol II, supra note 651. This limitation is by no chance a coincidence, it was a deliberate act of state actors to safeguard their sovereign prerogatives vis-à-vis anyone on their territory who tries to combat them. This can be seen by the fact that AP II (Article 3) contains an explicit provision of non-intervention: 1. Nothing in this Protocol shall be invoked for the purpose of affecting the sovereignty of a State or the responsibility of the government, by all legitimate means, to maintain or reestablish law and order in the State or to defend the national unity and territorial integrity of the State. 2. Nothing in this Protocol shall be invoked as a justification for intervening, directly or indirectly, for any reason whatever, in the armed conflict or in the internal or external affairs of the High Contracting Party in the territory of which that conflict occurs.

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Common Article 3 aims at protecting civilians or persons otherwise not actively participating in hostilities, i.e. persons placed hors de combat.654 In this light, Roman Boed hails the relatively short time frame the ad hoc Tribunals have needed to assist in the enforcement of Common Article 3 and AP II by establishing that the violation of these provisions incurs individual criminal responsibility.655 The practice in the ad hoc Tribunals – viewed as evidence of actual enforcement of international norms656 – in relation to the penalization of the acts proscribed by Common Article 3 has been to apply the test ‘whether, at the time of the alleged offence, the alleged victim of the proscribed acts was directly taking part in hostilities’.657

VI. Nexus to Armed Conflict The Special Court fully endorsed the ICTY jurisprudence according to which, an armed conflict exists “whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State. International humanitarian law applies from the initiation of such armed conflicts and extends beyond the cessation of hostilities until a general conclusion of peace is reached. Until that moment, international humanitarian law continues to apply in the whole territory of the warring states or, in the case of internal conflicts, the whole territory under the control of a party, whether or not actual combat takes place there”.658 In order for Common Article 3 to apply the crime charged must be committed during an armed conflict and an accused’s acts must be closely related to that conflict.659 The latter requirement is known as the “nexus” requirement. The nexus need not be a causal link, “but the existence of an armed conflict must, at a minimum, have played a substantial part in 654 Article 41 (2) of the AP I provides that: ‘A person is hors de combat if: (a) he is in the power of an adverse party; (b) he clearly expresses an intention to surrender; or (c) he has been rendered unconscious or is otherwise incapacitated by wounds or sickness, and therefore is incapable of defending himself; provided that in any of these cases he abstains from any hostile act and does not attempt to escape’. 655 Roman Boed, Individual Criminal Responsibility for Violations of Article 3 Common to the Geneva Conventions of 1949 and of Additional Protocol II, supra note 651, pp. 293 – 322. 656 Cf. Gabrielle Kirk McDonald, The International Criminal Tribunals: Crime and Punishment in the International Arena, 25 Nova L. Rev 2, 2001, p. 484. 657 ICTY, The Prosecutor v. Strugar, Case No. IT-42-A, Judgment, 17 July 2008, para. 172 et seq.; The Prosecutor v. Kordic and Cerkez, Case No. IT-95-14 / 2-A, Judgment, 17 December 2004, para. 51; The Prosecutor v. Galic, Case No. IT-98-29-T, Judgment, 5 December 2003, para. 48; ICTR, The Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Judgment, 2 September 1998, para. 629. 658 SCSL, SCSL, Sesay, Kallon, Gbao Trial Judgment, paras. 100 – 101 quoting ICTY, Tadić Appeal Decision on Jurisdiction, para. 70. 659 ICTY, Tadić Appeal Decision on Jurisdiction, paras. 67, 70; ICTY Kunarac Appeal Judgment, para. 55; ICTR, The Prosecutor v. Rutaganda, Case No. ICTR-96-3-A, Appeal Judgment, 26 May 2003, paras. 569 – 571.

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the perpetrator’s ability to commit the crime, his decision to commit it, the manner in which it was committed or the purpose for which it was committed”.660 In this light, the ICTY Appeals Chamber held that “if it can be established … that the perpetrator acted in furtherance of or under the guise of the armed conflict, it would be sufficient to conclude that his acts were closely related to the armed conflict.”661 To find a nexus, it is sufficient that the alleged crimes be closely related to the hostilities occurring in other parts of the territories controlled by the parties to the conflict.662 For example, Article 3 crimes need not be committed in the area of armed conflict, but must at least be “substantially related” to this area, which at least includes the entire territory under control of the warring parties.663 The Kunarac Appeal Judgment further held that a Trial Chamber must establish the existence of a geographical and temporal linkage between the crimes ascribed to the accused and the armed conflict. However, it should be noted that it is not necessary to show that the armed conflict was occurring at the exact time and place of the alleged offence.664 The Special Court adopted the same approach that the nexus requirement is fulfilled if the alleged violation was closely related to the armed conflict.665 It should be noted that the only form of contribution identifiable in the Special Court’s approach, is the consolidation of the law.

VII. The Elements of the Acts Enumerated in Article 3 of SCSL Statute Article 3 of the SCSL Statute provides as follows: The Special Court shall have the power to prosecute persons who committed or ordered the commission of serious violations of Article 3 common to the Geneva Conventions of 12 August 1949 for the Protection of War Victims, and of AP II thereto of 8 June 1977. These violations shall include: (1) Violence to life, health and physical or mental well-being of persons, in particular murder as well as cruel treatment such as torture, mutilation or any form of corporal punishment; (2) collective punishments; ICTY, Kunarac et al. Appeal Judgment, para. 58. Ibid., Kunarac et al. Appeal Judgment, para. 58 (emphasis added). 662 ICTY, Tadić Appeal Decision on Jurisdiction, para. 70. 663 ICTY, Kunarac et al. Appeal Judgment, paras. 60, 64; SCSL, Sesay, Kallon, Gbao Trial Judgment, para. 100. 664 Cf. Alexander Zahar / Goran Sluiter, International Criminal Law, A Critical Introduction, OUP, New York, 2008, p. 119. 665 SCSL, Sesay, Kallon, Gbao Trial Judgment, para. 100. 660 661

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(3) taking of hostages; (4) acts of terrorism; (5) outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault; (6) pillage; (7) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples; (8) threats to commit any of the foregoing acts. It should be noted that Article 3 of the SCSL Statute is explicitly taken from Common Article 3 to the Geneva Conventions and AP II, which are both applicable to non-international armed conflicts. The jurisprudence relating to the individual violations enumerated in Article 3 of the SCSL Statute will be explored below.

1. Violence to Life, Health and Physical or Mental Well-being of Persons, in Particular Murder as well as Cruel Treatment such as Torture, Mutilation or any Form of Corporal Punishment The statutes of the ICTR and Special Court prescribe that these international criminal courts shall have the power to prosecute persons who committed or ordered serious violations of Common Article 3 or AP II amounting to: “violence to life, health and physical or mental well-being of persons, in particular murder as well as cruel treatment such as torture, mutilation or any form of corporal punishment”.666 The wording of Article 3(a) SCSL Statute was taken wordverbatim from the ICTR Statute. A similar provision is incorporated in Article 8(2)(c) of the ICC Statute. This offence does not exist as an independent offence under customary international law.667 The approach by the international criminal courts has been to analyse this offence as murder, mutilation, cruel treatment or torture depending on the indictment. For example, in the RUF case, the Trial Chamber held that “the elements of the offence of murder as a serious violation of Common Article 3 and Additional Protocol II are the same as for murder as a crime against humanity, except for the general elements outlined above for crimes of this type”.668 The Special Court rather than attempt to further develop international law in this regard, decided to merely follow the precedence from the ad hoc Tribunals. In the Vasiljevic Trial Judgment, it was 666 667 668

Cf. Article 4(a), ICTR Statute and Article 3(a), SCSL Statute. SCSL Sesay, Kallon, Gbao Trial Judgment, para. 141. Ibid., para. 142.

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held that: In the absence of any clear indication in the practice of states as to what the definition of the offence of ‘violence to life and person’ identified in the Statute may be under customary law, the Trial Chamber is not satisfied that such an offence giving rise to individual criminal responsibility exists under that body of law.”669 This reflects the desire of the Special Court to be consistent with existing jurisprudence and as well innovative where necessary.

2. Collective Punishments The crime of collective punishment is expressly referred to as a separate war crime under the ICTR and SCSL Statutes.670 It is as well proscribed under Article 87(3) of the Geneva Convention III, Article 33 of the Geneva Convention IV, Article 75(2)(d) of AP I, and Article 4(2)(b) of AP II. This prohibition could be traced as far back as the Hague Conventions of 1899 and 1907.671 It should be noted that the prohibition against collective punishments in Article 3 (b) of the Statute is derived from Article 4(2)(b) of AP II, which is in turn based on the first paragraph of Article 33 of the Fourth Geneva Convention. The prohibition of collective punishments in international humanitarian law is based on one of the most tenets of criminal law, the principle of individual criminal responsibility. This principle affirms that responsibility is personal in nature and that no one may be punished for an act he or she has not personally committed.672 The Special Court jurisprudence considers this offence to consist of punishment imposed indiscriminately and collectively upon persons for acts which they may or may not have committed.673 The Special Court defines collective punishment as: “(i) The indiscriminate punishment imposed collectively on persons for omissions or acts for which some or none of them may or may not have been responsible; and the Accused specifically intended to punish collectively.”674

669 ICTY, The Prosecutor v. Vasiljević, Case No. IT-98-32-T, Judgment, 29 November 2002, para. 203 670 Article 4(b) ICTR Statute and Article 3(b) SCSL Statute. 671 Article 50 of the Convention (II) with Respect to the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land. The Hague, 29 July 1899 [The Hague Regulations, 1899]; Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land, The Hague, 18 October 1907, Article 50 [The Hague Regulations, 1907]. 672 Ibid., para. 678. See also International Committee of the Red Cross, Commentary on the Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War of 12 August 1949, J. Pictet (ed.), Martinus Nijhoff Publishers, Geneva 1958, p. 225. 673 SCSL, Brima, Kamara, Kanu Trial Judgment, para. 676; Fofana and Kondewa Trial Judgment, para. 180; SCSL, Sesay, Kallon, Gbao Trial Judgment, para. 126. 674 SCSL, Fofana and Kondewa Appeal Judgment, para. 224; Sesay, Kallon, Gbao Trial Judgment, para. 126.

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While the actus reus of this crime is relatively easier to establish, the mens rea requirement involves the satisfaction of the specific intent requirement. The CDF Appeals Chamber emphasised that: “the mens rea element of collective punishments, that is the specific intent to punish collectively, is the critical difference between the crime of collective punishments and the targeting of protected persons or objects. Victims of war crimes or crimes against humanity may be targeted because of who they are perceived to be, but victims of collective punishments are targeted because of something they are perceived to have done.”675

Thus, the Prosecution needs to establish that the accused had the requisite intention to punish collectively.676 However, such punishment need not be through judicial proceedings. Several other actions have been considered by the Special Court to be forms of collective punishments. These include: unlawful killings, mutilations and other forms of physical violence, lootings, abductions and destruction of civilian property.677 The Special Court jurisprudence on this issue is rather minimal and it remains to be seen of what value this would be to the proceedings before the ICC. It should be noted that thus far no one has been charged with this crime before the ICC.

3. Taking of Hostages The crime of taking hostages is not a new crime in international humanitarian law. It has long been regarded as a grave breach under Articles 34 and 147 of Geneva Convention IV. Further, it is recognized as a fundamental guarantee for civilians and persons hors de combat in APs I and II.678 It is as well proscribed as an offence in the statutes of several international criminal courts. The taking of hostages is proscribed in Article 2(h), ICTY Statute as a grave breach of the Geneva Conventions of 1949; as a war crime under Article 4(c), ICTR Statute; as a grave breach of the 1949 Conventions and a war crime under Aricles 8(2)(a)(viii) and 8(2)(c)(iii), ICC Statute respectively, as well as a violation of Article 3 common to the Geneva Conventions and of AP II under Article 3(c), SCSL Statute. The Accused in the RUF case were charged and convicted for having abducted several hundred peacekeepers who were then held hostage between about 15 April 2000 and 15 September 2000 in Bombali District, Tonkolili District, Port Loko District, Kono District and Kailahun Districts.679 SCSL, Fofana and Kondewa Appeal Judgment, para. 223. SCSL, Sesay, Kallon, Gbao Trial Judgment, para. 2308. 677 SCSL, Brima, Kamara, Kanu Trial Judgment, paras. 1430 et seq.; Fofana and Kondewa Trial Judgment, paras. 842 et seq. See also Gerhard Werle, Principles of International Criminal Law, supra note 294, pp. 404 – 405. 678 SCSL, Sesay, Kallon, Gbao Trial Judgment, para. 237. 679 Ibid., paras. 236, 1962. 675 676

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According to the ICC Elements of Crimes, the following elements must be satisfied in order for a person to be held responsible for the crime of hostage taking: “1. The perpetrator seized, detained or otherwise held hostage one or more persons. 2. The perpetrator threatened to kill, injure or continue to detain such person or persons. 3. The perpetrator intended to compel a State, an international organization, a natural or legal person or a group of persons to act or refrain from acting as an explicit or implicit condition for the safety or the release of such person or persons. 4. Such person or persons were either hors de combat, or were civilians, medical personnel or religious personnel taking no active part in the hostilities. 5. The perpetrator was aware of the factual circumstances that established this status. 6. The conduct took place in the context of and was associated with an armed conflict not of an international character. 7. The perpetrator was aware of factual circumstances that established the existence of an armed conflict.”

The Special Court adopted a less comprehensive list of elements that need to be satisfied for the same crime. The RUF Trial Chamber held that the following specific elements were required for the offence of hostage-taking: “1. The Accused seized, detained, or otherwise held hostage one or more persons; 2. The Accused threatened to kill, injure or continue to detain such person(s); and 3. The Accused intended to compel a State, an international organisation, a natural or legal person or a group of persons to act or refrain from acting as an explicit or implicit condition for the safety or the release of such person(s).”

It further held that “it is the law that the person or persons held hostage must not be taking a direct part in the hostilities at the time of the alleged violation”.680 An analysis of these elements establishes that the Special Court applies a lower threshold since it does not require that the perpetrator be aware of the factual circumstances that established the status of hostage. Such a requirement would have been more difficult to prove since the Prosecution would have been in the obligation to prove beyond reasonable doubt that the perpetrator in carrying out the act was conscious that the person or persons he was about to detain were not taking direct part in the hostilities and hence would be regarded as hostages. The fact that, it is debatable whether or not the peacekeepers were directly taking part in the hostilities, renders this Special Court jurisprudence all the more relevant. The finding that ‘[p]erson or persons held hostage must not be taking a direct part in the hostilities at the time of the alleged violation’681 is consistent with the ICC jurisprudence relating to the protection peacekeeping personnel enjoy during armed conflicts.682 Hence a person whom prior to being captured was directly taking part 680 681

Ibid., paras. 240 – 241. Ibid., paras. 240 – 241.

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in hostilities cannot be considered to be a hostage and this irrespective of whether the above-mentioned specific elements are met. Having said that, it should be noted that the Special Court applied existing jurisprudence from the ICTY which holds that: “the essential element in the crime of hostage-taking is the use of a threat concerning detainees so as to obtain a concession or gain an advantage […]”.683 The ICTY jurisprudence further states that: “[t]he crime of taking civilians as hostages consists of the unlawful deprivation of liberty, including the crime of unlawful confinement […]. The additional element that must be proved […] is the issuance of a conditional threat in respect of the physical and mental well-being of civilians who are unlawfully detained. The ICRC Commentary identifies this additional element as a “threat either to prolong the hostage’s detention or to put him to death.”

In the Chamber’s view, such a coercive threat must be intended as a coercive measure to achieve the fulfillment of a condition. The Trial Chamber in the Blaškić case phrased it in these terms: “[t]he prosecution must establish, at the time of the supposed detention, the allegedly censurable act was perpetrated in order to obtain a concession or gain an advantage.”684

Hence, the purpose of the hostage taking action should be coercive in order to achieve a particular goal. It must be proven that the accused intended to compel a party to do something or to refrain from doing something as an explicit or implicit condition for the safety or the release of the person(s) taken as hostage(s).685 The failure on the part of the Prosecution to prove that the accused intended the detention of the victim(s) to serve as coercion would result in the failure to satisfy all the requisite elements. In the RUF case, the Trial Chamber held that the Prosecution had failed to prove an essential element of the crime of hostage-taking, namely, the use of a threat against the detainees so as to obtain a concession or gain an advantage. It was not proven that the detention of the peacekeepers was communicated to a third party. Hence this count was not upheld. The Special Court considers this crime to be thus one with a specific intent requirement similar to genocide. This jurisprudence could be relevant before the ICC where there have been individuals accused of the same crime. Moreover, the author is of the view that the ICC higher threshold is the better approach to combating this crime and would definitely have been more suitable for the Special Court to apply.

682 See infra (Chapter 6) dealing with the Special Court’s case law on other serious violations of international humanitarian law. 683 ICTY, Blaškić Appeal Judgment, para. 639. 684 ICTY, Kordić and Čerkez Trial Judgment, paras. 312 – 313. 685 SCSL, Sesay, Kallon, Gbao Trial Judgment, para. 243.

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4. Acts of Terrorism The crime of terrorism is not new in international humanitarian law. The ad hoc Tribunals have had to deal with this crime in the course of their mandate.686 The prohibition of the crime of terrorism is enshrined in Article 3(d) of the SCSL Statute, which is taken from Article 4(2)(d) of AP II which prohibits acts of terrorism as a violation of the “fundamental guarantees” of humane treatment under the AP.687 There is no established definition of terrorism. The problem in defining ‘terrorism’ lies in that there are several popular perceptions and misconceptions, which ultimately influence the political and meaning of the term.688 Bassiouni defines terrorism as “[a]n ideologically-motivated strategy of internationally proscribed violence designed to inspire terror within a particular segment of a given society in order to achieve a power-outcome or to prooagandize a claim or grievance, irrespective of whether its perpetrators are acting for and on behalf of themselves, or on behalf of a state.”689

The Special Court defines terrorism as “the causing of extreme fear”.690 The ICTY in the Galic case ruled that the prohibition of terror against the civilian population amounts to customary international law since the time it was included in the Geneva Conventions.691 The jurisprudence of the Special Court establishes that the following elements need to be satisfied in order to establish the crime of terrorism: (1) Acts or threats of violence; (2) The Accused willfully made the civilian population or individual civilians not taking part in hostilities the objects of those acts or threats of violence; and (3) The acts or threats of violence were carried out with the specific intent of spreading terror among the civilian population.692 With regard to the first element which deals with the actus reus, the jurisprudence of the Special Court considers that terrorism extends beyond acts or threats of violence committed against protected persons to ‘acts directed against installations which would cause victims terror as a side-effect’.693 This is a rather broad interpretation of terrorism and the rationale behind this interpretation is the desire to proSee for example ICTY, Galić Appeal Judgment, para. 102. This prohibition was, in turn, based on Article 33 of Geneva Convention IV which prohibited “all measures of intimidation or of terrorism” of or against protected persons. 688 Cf. Cherif Bassiouni, Perspectives on International Terrorism, in: Bassiouni (ed.), International Criminal Law, Sources, Subjects, and Contents, Vol. I, 3rd edn., Martinus Nijhoff Publishers, Leiden 2008, p. 708. 689 Ibid., p. 710. 690 SCSL, Sesay, Kallon, Gbao Trial Judgment, para 117. 691 ICTY, Galić Appeal Judgment, paras. 87 – 90. 692 SCSL, Fofana and Kondewa Appeal Judgment, para. 350; Sesay, Kallon, Gbao Trial Judgment, para. 113. 686 687

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vide a wide protection to potential victims. This interpretation is reflective of the features of conflicts where not only are there acts or threats of violence against persons, but this violence is also extended to property. It should be noted that there is no onus on the Prosecution to prove that the act or threat caused death or serious injury to body or health within the civilian population.694 This finding is contrary to the D. Milosevic finding wherein the Trial Chamber required the Prosecution to prove that the act or threat by the accused caused death or serious injury to body or health within the civilian population.695 Considering the fact that the goal of international humanitarian law is to protect civilians in armed conflicts, it would not be serving this goal to first require that death or serious injury to body or health within the civilian population be proven. More so, the law should aim at criminalizing the individual for his malicious intentions thereby serving its deterrent role rather than wait to be solely punitive. The second element relates to the mens rea and requires that the Prosecution prove that an accused acted consciously and with intent or recklessness in making the civilian population or individual civilians the object of an act or threat of violence. In this light, the Special Court jurisprudence specifies that negligence, on the other hand, is not enough in order to satisfy the mens rea requirement.696 Thirdly, similar to the crime of hostage taking, the crime of terrorism is a crime with a specific intent requirement (dolus specialis). In order to satisfy the mens rea requirement, the Prosecution “must prove not only that the perpetrators of the acts or threats of violence ‘accepted the likelihood that terror would result from their illegal acts or threats’, but also that this was the result specifically intended”.697 At this juncture, it is worthy to note that these elements – as laid out by the Special Court offer a broader protection than for example those laid out by the Special Tribunal for Lebanon (STL). Although still at its embryonic stage, the STL recently addressed inter alia the crime of terrorism. The Chamber held that: “the notion of terrorism to be applied by the [STL] consists of the following elements: (i) the volitional commission of the act; (ii) through means that are liable to create a public danger; and (iii) the intent of the perpetrator to cause a state of terror”.698

693 Cf. Sesay, Kallon, Gbao Trial Judgment, para. 114; Brima, Kamara, Kanu Trial Judgment, para. 671; Prosecutor v. Sam Hinga Norman, Moinina Fofana, Allieu Kondewa, Case No. SCSL-04-14-T, Decision on Motions for Judgment of Acquittal Pursuant to Rule 98, 21 October 2005, para. 112. 694 SCSL, Fofana and Kondewa Appeal Judgment, paras. 350 – 352; ICTY, Galić Appeal Judgment, para. 102. 695 ICTY, The Prosecutor v. D. Milošević, Case No. IT-98-29 / 1-T, Judgment, 12 December 2007, paras. 876 and 880. 696 SCSL, Fofana and Kondewa Appeal Judgment, para. 355. 697 SCSL, Sesay, Kallon, Gbao Trial Judgment, para. 119; Fofana and Kondewa Appeal Judgment, para. 356; Galić Appeal Judgment, para. 104.

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These elements enumerated by the STL provide a narrower scope of protection in that they do not cover any threat or violent action against property. However, they concur with the Special Courts’s jurisprudence that there is not need for there to have been an underlying crime. The said crime would then be considered as an aggravating circumstance. Hence, the jurisprudence of the Special Court clearly lays out the elements of the crime of terrorism and relies on existing jurisprudence of the ad hoc Tribunals. The jurisprudence contributes to the development of international humanitarian law by extending the scope of protection of potential victims of terrorism. This is a clear recognition that violence or threat of violence against property could have the same effect as against a human being, ie. the effect of terrorizing the civilian population. Further, the author is of the view that the broad approach adopted by the Special Court is more suitable in combating the crime since it would likely cover all possible scenarios of terrorism.

5. Outrages upon Personal Dignity, in Particular Humiliating and Degrading Treatment, Rape, Enforced Prostitution and any Form of Indecent Assault Article 3 of the SCSL Statute provides in its relevant part that “[t]he Special Court shall have the power to prosecute persons who committed or ordered the commission of serious violations of article 3 common to the Geneva Conventions of 12 August 1949 for the Protection of War Victims, and of Additional Protocol II thereto of 8 June 1977. These violations shall include: […] (e) Outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault”. This provision stems word verbatim from Article 4(e) of the ICTR Statute. The list of offences subsumed under outrages against personal dignity constitutes a “non-exhaustive list of conduct”, with humiliating and degrading treatment, rape, enforced prostitution and indecent assaults of any kind given by way of example.699 These acts are prohibited under Common Article 3 of the Geneva Conventions and Articles 75(2)(b) and 4(2)(e) of APs I and II respectively.700 It should be noted that this crime exist in both international and non-international armed conflicts and consist of the same requirements.701 698 STL, Case No. STL-11-01, Doc. Ref. STL-11-01 / 1 / AC / R, 176bis, Interlocutory Decision on the Applicable Law: Terrorism, Conspiracy, Homicide, Perpetration, Cumulative Charging with corrected front page, 16 February 2011, p. 4. For a detailed analysis of this jurisprudence, see Kai Ambos, Judicial Creativity at the Special Tribunal for Lebanon: Is there a Crime of Terrorism under International Law?, supra note 363. 699 Cf. Patricia Viseur Sellers in: Otto Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article, 2nd edn., C.H. Beck, Hart and Nomos, München, 2008, Article 8, mn. 190. 700 Gerhard Werle, Principles of International Criminal Law, supra note 294, p. 395, mn. 1073.

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Outrages upon personal dignity have been defined as “any act or omission which would be generally considered to cause serious humiliation, degradation or otherwise be a serious attack on human dignity.”702 The Special Court identified the following elements as constituting elements of this crime: “(i) The Accused humiliated, degraded or otherwise violated the dignity of one or more persons; (ii) The severity of the humiliation, degradation or other violation was of such degree as to be generally recognised as an outrage upon personal dignity; and (iii) The Accused intended the act or omission in the knowledge that the act could have the effect of humiliating, degrading or otherwise violating the dignity of the person.”703

These elements are identical to those of the ICC Elements of Crimes but for the third element which is not included in the ICC Elements of Crimes.704 According to the ICC Elements of crimes, it is immaterial whether the victim personally was aware of the existence of the humiliation or degradation or other violation. What matters is that the violation be of such severity that it can be recognized as an outrage.705 The duration of the suffering is immaterial in determining whether an act amounted to an outrage upon personal dignity.706 The reference to ‘persons’ in the above listed elements would also include dead persons. Thus the maltreatment of a dead person could be prosecuted under this crime. The actus reus of this crime requires that the Accused acted or omitted to act in a way that caused serious humiliation, degradation or otherwise violated the dignity of the victim. The RUF Trial Chamber pointed out that the assessment of such an action or inaction should be done objectively.707 With regard to the mens rea, while it is not necessary that the accused had the specific intent (dolus specialis) to humiliate or degrade the victim, it is however necessary that the accused knew that his act or omission could cause humiliation, degradation or otherwise be a serious 701 A. Zimmermann, in: Otto Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article, 2nd edn., C.H. Beck, Hart and Nomos, München, 2008, Article 8, mn. 290. 702 ICTR, Prosecutor v. Kabigili, Ntabakuze and Nsengiyumva, Case No. ICTR-98-41-T, 18 December 2008, para. 2250. 703 Sesay, Kallon, Gbao Trial Judgment, para. 175. 704 See Article 8(2)(b)(xxi), ICC Elements of Crimes. 705 ICC, The Prosecutor v. Katanga and Ngudjolo Chui, Case No. ICC-01 / 04-01 / 07, PreTrial Chamber, Decision on the Confirmation of Charges, 30 September 2008, para. 369; SCSL, Brima, Kamara, Kanu Trial Judgment, para. 716; SCSL, Sesay, Kallon, Gbao Trial Judgment, para. 175. 706 ICTY, Kunarac et al. Trial Judgment, paras. 501, 503; SCSL, Sesay, Kallon, Gbao Trial Judgment, para. 176. 707 SCSL, Sesay, Kallon, Gbao Trial Judgment, para. 176. See also ICTY, Kunarac et al. Appeal Judgment, para. 162; ICTY, The Prosecutor v. Aleksovski, Case No. IT-95-14 / 1, 25 June 1999, paras. 56 et seq.; ICTY, The Prosecutor v. Haradinaj et al., Case No. IT-04-84, Judgment, 3 April 2008, para. 132.

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attack on human dignity.708 This is a lower threshold for it suffices to establish that the accused had the dolus evetualis in order to satisfy the mens rea requirement. The Special Court approach is reflective of current jurisprudence in other international criminal courts and thereby contributes in consolidating existing international law.

6. Pillage Black’s Law Dictionary defines pillage as “the forcible seizure of another’s property, especially in war; especially the wartime plundering of a city or territory”.709 The crime of pillage is prosecuted as a serious violation of Common Article 3 and of AP II pursuant to Article 3(f) of the SCSL Statute. While the ICTR, SCSL and ICC Statutes refer to the crime of pillage, the ICTY Statute refers to the crime of plunder.710 Pillaging could be carried out both against private property as well as against public property.711 While this prima facie establishes that there are no restrictions as to the owner of the property, a closer look establishes that persons who are on the side of the perpetrator do not benefit from this protection. Werle suggest that this could be justified by the fact that the underlying purpose of international humanitarian law is to protect the enemy party albeit a few exceptions such as the protection awarded to child soldiers, who regardless of their affiliation are protected by international humanitarian law.712 The Special Court laid out the following as constituting elements of the crime of pillage: “(i) The Accused unlawfully appropriated the property; (ii) The appropriation was without the consent of the owner; and (iii) The Accused intended to unlawfully appropriate the property.”713

The Special Court decided to adopt a broad application of the offence of pillaging to include appropriation for both private uses as well as pursuant to a systematic ex-

SCSL, Sesay, Kallon, Gbao Trial Judgment, para. 177. Cf. Bryan A. Garner, Black’s Law Dictionary, 9th edn., West Group, p. 1265. 710 See Articles Article 4(f); Article 3(f); Article 8(2)(e)(v) and Article 3(e) of the ICTR, SCSL, ICC and ICTY Statutes respectively. The French version of the ICTY Statute uses the word “pillage”. However, the author could not identify any difference in the meaning of the words apart from their origin with pillage being of French origin and plunder of German origin. 711 ICTY, Kordić and Čerkez Appeal Judgment, para. 79; ICTY, The Prosecutor v. Martić, Case No-IT-95 – 11, Judgment, 12 June 2007, para. 101; SCSL, Fofana and Kondewa Trial Judgment, para. 159; Prosecutor Sesay, Kallon, Gbao Trial Judgment, para. 205. 712 Gerhard Werle, Principles of International Criminal Law, supra note 294, p. 420, mn. 1152. 713 SCSL, Sesay, Kallon, Gbao Trial Judgment, para. 207. 708 709

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ploitation of occupied territory.714 This is consistent with the jurisprudence of the ad hoc Tribunals particularly the ICTY.715 While it is recognized under international law that the crime of pillage does not require that the appropriation be extensive or be of a large economic value, this begs the question as to whether this could be reconciled with the jurisdictional requirement of the Special Court that the violation be of a serious nature. The Special Court in addressing this issue stated that “[p]illage ‘may be a serious violation not only when one victim suffers severe economic consequences because of the appropriation, but also, for example, when property is appropriated from a large number of people’.”716 With regard to the mens rea, the intention of the Accused to appropriate the property of the owner by depriving the latter of it needs to be established. It is immaterial, whether the accused knew that his actions were part of an armed conflict. The Special Court jurisprudence in this respect consolidates existing international law and reinforces its application.

7. The Passing of Sentences and the Carrying out of Executions without Previous Judgment Pronounced by a Regularly Constituted Court, Affording all the Judicial Guarantees which are Recognized as Indispensable by Civilized Peoples This offence is taken verbatim from Article 8(2)(c)(iv) of the ICC Statute. According to the ICC Elements of crimes the following elements need to be satisfied in order for the crime of passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples to be established: “(1) The perpetrator passed sentence or executed one or more persons. (2) Such person or persons were either hors de combat, or were civilians, medical personnel or religious personnel taking no active part in the hostilities. (3) The perpetrator was aware of the factual circumstances that established this status. (4) There was no previous judgment pronounced by a court, or the court that rendered the judgment was not ‘regularly constituted’, that is, it did not afford the essential guarantees of independence and impartiality, or the court that rendered judgment did not afford all other judicial guarantees generally recognized as indispensable under international law.

Ibid., para. 208; Fofana and Kondewa Trial Judgment, para. 165. ICTY, The Prosecutor v. Delalić et al., Case No IT-96 – 21-T, Judgment, 16 November 1998, para. 590. 716 SCSL, Sesay, Kallon, Gbao Trial Judgment, para. 210 quoting ICTY, The Prosecutor v. Naletilić and Martinović, Case No. IT-98-34-T, Judgment, 31 March 2003, para. 614. 714 715

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(5) The perpetrator was aware of the absence of a previous judgment or of the denial of relevant guarantees and the fact that they are essential or indispensable to a fair trial. (6) The conduct took place in the context of and was associated with an armed conflict not of an international character. (7) The perpetrator was aware of factual circumstances that established the existence of an armed conflict.”717

There is however, no jurisprudence emanating from the Special Court in this regard. The ICC has not yet completed any of its cases, and thus it remains to be seen if and when this crime is prosecuted before the ICC, what jurisprudence would emerge from there.

VIII. Conclusion The conclusion to this chapter on the jurisprudence of the Special Court in relation to war crimes, establishes that the protection awarded to victims in non-international armed conflicts has greatly progressed in the recent past. At the time when the ICTY and ICTR were created the idea that international humanitarian law was applicable in non-international armed conflicts was a foreign one. However, thanks to these ad hoc Tribunals, this position changed in the course of time and the Special Court had the opportunity to either further develop this jurisprudence or consolidate it in international humanitarian law. Although there has been some criticism to the work of the Special Court, it would be right to say that it has contributed – albeit to a limited extent – to the development of international humanitarian law. It was able on several occasions to apply the elements of crimes of the ICC, which reflect the current position of international law in relation to these offences.

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Chapter 6

The Special Court’s Case Law on other Serious Violations of IHL Under this rubrique are additional crimes which are considered to be part of customary international law. These types of crimes are dealt with in Article 4 of the SCSL Statute which reads: “The Special Court shall have the power to prosecute persons who committed the following serious violations of international humanitarian law: a. Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities; b. Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict; c. Conscripting or enlisting children under the age of 15 years into armed forces or groups or using them to participate actively in hostilities.”718

Considering the fact that the ad hoc Tribunals did not have these crimes included in their Statutes and that the ICC has not yet rendered any final judgment, there was no jurisprudence on these provisions in international criminal law. The Special Court is thus the first international tribunal to apply these provisions and its jurisprudence is per se a contribution to the development of international humanitarian law as a whole. In this chapter, we shall look at the Special Court’s jurisprudence relating two of these provisions, which has been of great significance in the development of international humanitarian law: (II.) Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict; and (III.) Conscripting or enlisting children under the age of 15 years into armed forces or groups or using them to participate actively in hostilities. However, prior to looking at this Special Court jurisprudence, in order to better apprehend the nature of the crimes which are also considered to be part of customary international law it is worthwhile briefly analyzing what amounts to customary international law (I.). 718

Article 4, SCSL Statute.

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I. The Notion of Customary International Law The Statute of the ICJ defines custom as a “general practice accepted as law”.719 The establishment of customary international law requires the existence of state practice as well as the legality of the act (opinio juris sive necessitates).720 This practice could be discerned from several factors such as legislation, court decisions and declarations made by state representatives. This practice should be consistent, widespread in nature and of certain duration. Hence isolated actions would not amount to be customary internatiuoal law.721 This declaration made by the state need not necessarily be in support of the conduct or prohibition that amounts to customary international law. An expression to the contrary could also be evidence of the existence of such a customary internatonal law such as in a case where there is an attempt by the state to justify its conduct.722 Further, as pointed out in the Tadic Appeals jurisprudence, decisions of international courts establish indirect proof of state practice thereby contributing as well as to the creation of customary international law.723 Therefore, there are a number of indicia that could be assessed in order to establish the existence of customary international law.

II. Intentionally Directing Attacks against Personnel, Installations, Material, Units or Vehicles Involved in a Humanitarian Assistance or Peacekeeping Mission in Accordance with the Charter of the United Nations Customary international law prohibits directing an attack against personnel and objects involved in a peacekeeping mission in accordance with the Charter of the 719 Cf. Article 38(1)(b) ICJ Statute. See also North Sea Continental Shelf Cases, Judgment, 20 February 1969, ICJ Reports 1969, para. 74. According to this ICJ jurisprudence, customary international law requires the existence of state practice that is ‘both extensive and virtually uniform in the sense of the provision invoked;- and should moreover have occurred in such a way as to show a general recognition that a rule of law or legal obligation is involved’. 720 According to Black’s Law Dictionary opinion juris sive necessitates (opinion that an act is necessary by rule of law) refers to ‘[t]he principle that for conduct or a practice to become a rule of customary international law, it must be shown that nations believe that international law (rather than moral obligation) mandates the conduct or practice’, Bryan A. Garner (ed.), Black’s Law Dictionary, 8th edn., 2004, p. 1125. See also Anthony Cullen, The Concept of Non-international Armed Conflict in International Humanitarian Law, A Study on Thresholds of Applicability, Cambridge University Press, Cambridge, 2010; Alfred Verdross / Bruno Simma, Universelles Völkerrecht, 3rd edn., 1984, paras. 549 et seq. 721 See I. Brownlie, Principles of Public International Law, 7th edn., OUP, Oxford, 2008, pp. 6 et seq.; Gerhard Werle, Principles of International Criminal Law, supra note 294, p. 51. 722 Cf. Ivo Gross, Die Vereinbarkeit von nationalen Amnestieregelungen mit dem Völkerstrafrecht am Beispiel von Südafrika, 14 Humanitäres Völkerrecht – Informationsschriften 3, 2001, pp. 162 – 172. 723 ICTY, Tadić Appeal Decision on Jurisdiction, para. 133.

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UN, as long as they are entitled to the protection given to civilians and civilian objects under international humanitarian law.724 The UN Secretary-General in his report on the establishment of the Special Court pointed out that the prohibition against attacks on peacekeeping personnel could be seen as “[a] particularization of the general and fundamental prohibition in international humanitarian law against attacks on civilians and civilian objects.”725 The Trial Chamber in the Prosecutor v. Sesay et al. case, which was the first case in international criminal law to deal with the prosecution of the offence of attacks against peacekeepers, concurred with the UN Secretary-General’s assertion that this offence was a particularization of the international humanitarian law general prohibition against attacking civilians.726 The Sesay et al. Trial Chamber defined peacekeeping as: “[a] technique designed to preserve the peace, however fragile, where fighting has been halted, and to assist in implementing agreements achieved by the peacemakers. Over the years, peacekeeping has evolved from a primarily military model of observing cease-fires and the separation of forces after inter-state wars, to incorporate a complex mode of many elements – military, police and civilian – working together to help lay the foundations for sustainable peace.”727

The prohibition against attacks on peacekeeping personnel applies both to international and non-international armed conflicts and is enshrined in international as well as national legal instruments as would be seen below.728 It is worthy to note that while the Statutes of the Special Court and the ICC expressly punish the offence of intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, the Statutes of the ad hoc Tribunals do not.729 Instead, the Statutes of the ICTR and ICTY have provisions punishing the resulting effect of such attacks.730 Such results are murder, violence to life, health, physical or mental well-being of persons, taking of hostages, pillaging and cruel treatment.731 The purpose of punishing the attack against UN personnel and 724 Cf. Jean-Marie Henckaerts / Louise Doswald-Beck, Customary International Humanitarian Law, Vol. I: Rules, Interntional Committee of the Red Cross, 2005, p. 112. 725 Cf. Report of the Secretary-General, 4 October 2000, supra note 15, para. 16. 726 SCSL, Sesay, Kallon, Gbao Trial Judgment, para. 215. 727 SCSL, Sesay, Kallon, Gbao Trial Judgment, paras. 224 – 225. See also United Nations Department of Peacekeeping Operations, United Nations Peacekeeping Operations: Principles and Guidelines, March 2008, p. 14. 728 SCSL, Sesay, Kallon, Gbao Trial Judgment, para. 218. 729 SCSL Statute, Art. 4(b); ICC Statute, Art. 8(2)(b)(iii) and (e)(iii). See also ICC, Prosecutor v. Bahr Idriss Abu Garda, Case No. ICC-02 / 05-02 / 09, Decision on the Confirmation of Charges. On 8 February 2010, Pre-Trial Chmaber I of the ICC declined to confirm the charges brought against Abu Garda in relation to an attack against peacekeepers of the African Union Mission in Sudan (AMIS) operating under a UN Mandate in Haskanita, North Darfur. 730 Art. 2, ICTY Statute; Art. 4, ICTR Statute. 731 See ICTY, The Prosecutor v. Karadžić, Case No. IT-95-5 / 18-PT, Third Amended Indictment, 27 February 2009. Karadžić is charged under Count 11 with ‘taking hostages, a vio-

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objects involved in a peacekeeping mission is the intention to protect the sanctity of the UN.

1. Treaties and other Legal Instruments There exist several international legal instruments as well as treaties that prohibit intentionally directing attacks against personnel involved in a peacekeeping mission. The raison d’être of this practice is that although the peacekeeping forces are usually soldiers and thus armed, they are not members of a party to the conflict and provided they do not take direct part in the hostilities should be treated like civilians who also do not take part in the hostilities and thereby enjoy protection. It should be noted that this protection is lost once the peacekeepers actively participate in the hostilities.732 One of such international legal instruments is the Convention on the Safety of United Nations and Associated Personnel (“Convention on UN Safety”), which in its Article 7(1) states that: “United Nations and associated personnel, their equipment and premises shall not be made the object of attack or of any action that prevents them from discharging their mandate”.733 The Convention on UN Safety establishes the prohibition of acts of attack against UN peacekeepers and associated personnel generally and sets the basis for co-operation between state parties in preventing and punishing specific crimes that result from such attacks, through the exercise of universal jurisdiction.734 It is worthy of note that the Convention on UN Safety, distinguishes between UN operations authorized by the UNSC as an enforcement action under Chapter VII of the UN Charter and persons engaged or deployed by the UN Secretary-General as members of the military, police or civilian components of a UN operation.735 The Convention on UN Safety does not apply to UN operations authorized as an enforcement action under Chapter VII, wherein personnel are engaged as combatants (Article 2(2)).736 However, the Convention on lation of the laws or customs of war’ and it is punishable under Articles 3, 7(1) and 7(3), ICTY Statute. See also ICTR, The Prosecutor v. Bagosora, Case No. ICTR-96-7-I, Amended Indictment, 12 August 1999. 732 See Mohamed A. Bangura, Prosecuting the Crime of Attack on Peacekeepers: A Prosecutor’s Challenge, supra note 618, pp. 168 et seq. 733 Cf. Article 7(1), Convention on the Safety of United Nations and Associated Personnel, UN GA Res. 49 / 59, 9 December 1994 (entry into force 15 January 1999). Article 7(2) obliges state parties to take all appropriate measures to ensure the safety and security of UN peacekeepers and associated personnel, as well as their equipment. Article 3 requires state parties to co-operate with the UN and other state parties in the implementation of the convention. It is worthy of note that Sierra Leone signed this convention on 13 February 1995. 734 Cf. Adam Roberts / Richard Guelf (eds.), Documents on the Laws of War, 3rd edn., OUP, USA, 2000, p. 624. 735 Chapter VI and VII of the UN Charter deal with the settlement of disputes and actions to be taken for the maintenance of peace and security. Chapter VII permits the Security Council to decide on coercive measures or enforcement action against a state or states in response to breaches of the peace and acts of aggression.

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UN Safety is somewhat limited in its scope of application and thereby cannot be used as a tool in preventing or punishing the crime of attack on peacekeepers and associated personnel. This is so because its provisions are only applicable to state parties and not all states are signatories or parties to it.737 Another limitation is that the Convention on UN Safety is only applicable to state entities meaning that nonstate entities such as rebel armed groups are not bound by its provisions. The same applies for ad hoc or permanent international tribunals, which are independent created bodies and whose jurisdiction is provided for in their statutes. Moreover, even amongst state parties to the Convention on UN Safety, their application of the Convention depends on their willingness and ability to do so.738 The SCSL Statute provides in its Article 4(b) that: “The Special Court shall have the power to prosecute persons who committed the following serious violations of international humanitarian law: […] Intentionally directing attacks against personnel, installations, material units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict.”739

Peacekeepers are thus put under the first rule of protection for civilians under the laws of war, which, in accordance with Articles 48, 51(2) and 52(2) AP I, provide the following: “[T]he parties to the conflict must at all times distinguish between civilians and combatants. Attacks may only be directed against combatants.Attacks must not be directed against civilians”.740 In the same light, an analysis of state practice shows that objects involved in peacekeeping operations are considered to be civilian objects, and therefore protected against attacks. This norm, which is in accordance with Articles 48 and 52(2) AP I, reads as follows: “[T]he parties to the conflict must at all times distinguish between civilian objects741 and military objectives.742Attacks may only be directed against military objectives. Attacks must not be 736 Cf. Article 7(1), Convention on the Safety of United Nations and Associated Personnel, UN GA Res. 49 / 59, 9 December 1994. 737 As of 17 May 2012, the Convention had 90 State Parties. Cf. United Nations Treaty Collection, http: // treaties.un.org / Pages / ViewDetails.aspx?src=TREATY&mtdsg_no=XVIII8&chapter=18&lang=en. 738 Cf. Mohamed Bangura, Prosecuting the Crime of Attack on Peacekeepers, supra note 618, p. 171. 739 Cf. SCSL Statute available in: Charles Jalloh, Consolidated Legal texts for the Special Court for Sierra Leone, supra note 134, pp. 19 et seq. 740 Hague Regulations, Art. 3, cited in: J.-M. Henckaerts / L. Doswald-Beck, Customary International Humanitarian Law, Vol. I: Rules (2005), pp. 11 – 12. 741 The Manual on the Law of Non-International Armed Conflict defines civilian objects in the negative as “those objects that do not constitute a military objective” (Manual on the Law of Non-International Armed Conflict, with Commentary, International Institute of Humanitarian Law, Sanremo, 2006, p. 7). 742 Military objectives can be defined as objects which by their nature, location, purpose, or use make an effective contribution to military action and whose total or partial destruction,

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directed against civilian objects”.743Article 8(2)(b)(iii) and (e)(iii) of the ICC Statute criminalizes – both in international and non-international armed conflict – the intentional directing of attacks against personnel, installations, materials, units or vehicles involved in a […] peacekeeping mission in accordance with the Charter of the UN, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict.744 According to Section 6(1)(b) (iii) and (e)(iii) of UNTAET Regulation 2000 / 15, the following constitutes a war crime in both international and non-international armed conflicts: “[I]ntentionally directing attacks against personnel, installations, materials, units or vehicles involved in a […] peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict”.745 Contrary to the international instruments which seem to have a consolidated approach, the protection of peacekeeping missions at the domestic level is less consolidated i.e. some national laws adopt a broader scope of protection than others. The author could not identify this variety or difference as being linked to the legal system of the countries in question. Cameroon having been under the League of Nations mandate administrated by France and Britain applies both the civil law and common law legal systems. The military manual of Cameroon adopts a broad scope of protection of peacekeeping missions. Cameroon’s Instructors Manual provides that: “[I]t is prohibited for belligerents to open fire on interposition forces and on their material, [as] these forces’ mission is not to fight one or the other party to the conflict (except in case of self-defence) but to interpose themselves between such parties in order to ensure respect for a cease-fire.”746

An interpretation of this provision points out that the protection accorded is not only limited to UN forces but applies to all interposition forces and could thus include regional or other forces who are acting as interposition forces. Although this approach is laudable and would encourage regional organizations to intervene in a conflict to maintain or restore peace, it is however problematic for it does not precise who declares this force as an interposition force, as well as how do they idencapture, or neutralization, in the circumstances at the time, offers a definite advantage. For further reading see ‘The Manual on the Law of Non-International Armed Conflict, with Commentary’, ibid., pp. 5 et seq. 743 Hague Regulations, Art. 3, cited in: J.-M. Henckaerts / L. Doswald-Beck, Customary International Humanitarian Law, Vol. I: Rules (2005), p. 25. 744 Cf. Article 8(2)(b)(iii) and (e)(iii), ICC Statute, available at: . 745 UN Security Council Resolution 1272, Doc. S / RES / 1272, 25 October 1999, established the United Nations Transitional Administration in East Timor (UNTAET) and granted it a mandate to “exercise all legislative and executive authority, including the administration of justice”. The East Timor Special Panels for Serious Crimes were established as part of the transitional court system by the UNTAET within the District Court of Dili, pursuant to Section 10 of UNTAET Regulation 2000 / 11 as amended by UNTAET Regulation 2001 / 25. 746 Cf. Cameroon Instructors Manual (1992), p. 110.

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tify themselves as being interposition forces. It has been traditionally acknowledged that UN observer and peacekeeping missions have normally relied on their identification as UN representatives to ensure that their personnel and equipment are not targeted by the parties in the conflict. New Zealand, a common law country provides in its military manual that: “[U]nited Nations Forces are usually engaged in peacekeeping operations. On such occasions they have no combat function although they may defend themselves if attacked. Their duty is to supervise or observe a situation between contestants, even combatants, and report back. Sometimes, their duty is to seek to interpose themselves between such forces with the intention that their presence under authority of a United nations resolution and wearing United nations insignia will protect them from attack, and thus create a cordon sanitaire between the antagonists.”747

This approach however restricted to UN peacekeeping forces explains why these forces ought to benefit from protection from attack and how they could be identified. The courts of New Zealand are as well attributed extraterritorial jurisdiction over attacks against internationally protected persons and hostages as well as their property and vehicles.748 New Zealand being a member of the ICC also prohibits attacks on peacekeeping missions in its International Crimes and ICC Act.749 Germany, a civil law country, in its military manual states that: “When a United Nations’ force or mission performs functions of peacekeeping, observation or similar functions, each party to the conflict shall, if requested […] take such measures as may be necessary to protect the force or mission while carrying out its duties”.750 The particularity about the German Handbook of Humanitarian Law in Armed Conflicts – as against manuals of other states – is that it reflects the views of 18 states as well as several international humanitarian law experts on the issue of the application of international humanitarian law in armed conflicts.751 In the same light, the German Code of Crimes Against International Law (Völkerstrafgesetzbuch) which entered into force on 30 June 2002, criminalizes the act of intentionally directing attacks against personnel, installations, materials, units or vehicles involved in a […] peacekeeping mission in accordance with the Charter of the UN, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict.752 In addition to the above legal instruments Cf. New Zealand, Military Manual (1992), para. 1904. Cf. New Zealand, Crimes (Internationally Protected Persons and Hostages) Amendment Act (1998), Sections 3 and 4. 749 Cf. New Zealand, International Crimes and ICC Act (2000), Section 11(2). 750 Cf. Germany, Military Manual (Humanitäres Völkerrecht in bewaffneten Konflikten – Handbuch – 1992), para. 418, available at: http: // www.humanitaeres-voelkerrecht.de / page2. php. 751 Cf. Wolff Heintschel von Heinegg, ‘The German Manual’, in: Nubuo Hayashi (ed.), National Military Manuals on the Law of Armed Conflict, Forum for International Criminal and Humanitarian Law Publications Series No. 2, 2nd edn., Oslo, 201, pp. 109 et seq. 752 Cf. Völkerstrafgesetzbuch (VStGB), Nomos Verlagsgesellschaft, Baden-Baden, 2002, para. 10(1)(1). 747 748

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there have also been condemnations by the UN and other international organizations for not only attacks against peacekeeping personnel and objects but also for other acts which do not amount to attacks. Such acts include violence intimidation, detention and maltreatment.753 Regarding the above practice as customary international law means that it also applies to armed groups. The Special Court’s Appeals Chamber held that “customary international law represents the common standard of behavior within the international community, thus even armed groups hostile to a particular government have to abide by these laws.”754 Having looked at examples of both international and national legal instruments which prohibit the attack on peacekeeping forces, it is imperative in order to understand the scope of protection they are entitled to enjoy, to look at what protection civilians and civilian objects are entitled to and then look at the jurisprudence of the Special Court in this regard.

2. Protection Given to Civilians and Civilian Objects As stated above a civilian is defined as a person not serving in the military755 Article 50 AP I defines a civilian as “any person who does not belong to one of the categories of persons referred to in Article 4 A (1), (3) and (6) of the Third Convention and in Article 43 of this Protocol.”756 The ICTY Trial Chamber in Prosecutor v. D. Milošević in distinguishing between a civilian and a combatant stated that:

753 Cf. UN Security Council Resolution 802, Doc. S / RES / 802, 25 January 1993, para. 2 (adopted in the context of the conflict in Croatia and strongly condemning attacks by the Croatian forces “against UNPROFOR in the conduct of its duty of protecting civilians in the United Nations Protected Areas”) UN Security Council Resolution 804, Doc. S / RES / 804, 29 January 1993, para. 12 (adopted in the context of the conflict in Angola and condemning “attacks against UNAVEM II personnel in Angola”); UN Security Council Resolution 1313, Doc. S / RES / 1313, 4 August 2000, preamble (adopted in the context of the conflict in Sierra Leone and condemning “in the strongest terms the […] detention of the personnel of UNAMSIL [by the RUF] in Sierra Leone”); ECOWAS, Final Communiqué of the first Summit Meeting of the Committee of Nine of ECOWAS on the Liberian Crises, 7 November 1992, annexed to Letter dated 13 November 1992 from Benin to the President of the UN Security Council Resolution ECOWAS, UN Doc. S / 24812, 16 November 1992, para. 9; Organization of the Islamist Conference, Conference of Ministers of Foreign Affairs, Res. 1 / 6-EX and EU, Statement before the UN Security Council, UN Doc. S / PV.3367, 21 April 1994, 25. 754 Cf. Prosecutor v. Norman et al., SCSL-04-14-AR72(E), Decision on Preliminary Motion based on Lack of Jurisdiction (Child Recruitment) para. 22, citing Jean-Marie Henckaerts, Binding Armed Opposition Groups through Humanitarian Treaty Law and Customary Law in Relevance of International Humanitarian Law to Non-state actors, Proceedings of the Brugge Colloquium, 25 – 26 October 2002, which states “[I]t is well settled that all parties to an armed conflict, whether states or non-state actors, are bound by international humanitarian law, even though only states may become parties to international treaties”. 755 Cf. Bryan A. Garner, Black’s Law Dictionary, 9th edn., West Group, p. 280. 756 Cf. Article 50, Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (AP I).

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“[t]he term ‘civilian’ is defined negatively, to include any person who is not a member of the armed forces or an organized military group belonging to a party to the conflict. In some circumstances it may be difficult to ascertain whether a person is a civilian. The generally accepted practice is that combatants distinguish themselves by wearing uniforms, or, at the least, a distinctive sign, and by carrying their weapons openly. Other factors that may help determine whether a person is a civilian include his or her clothing, activity, age or sex. In cases of doubt whether a person is a civilian, that person shall be considered to be a civilian. […].”757

It further stated that: “[t]he protection afforded to individual civilians by Article 51 of Additional Protocol I continues until such time as civilians take a direct part in hostilities. There is a need to distinguish between direct participation in hostilities and participation in the war effort. To take direct part in hostilities means to engage in acts of war which, by their nature or purpose, are likely to cause actual harm to the personnel or materiel of the enemy armed forces. A civilian who takes part in armed combat loses his or her immunity and becomes a legitimate target.”758

The definition of a “civilian” in both national as well as international legal instruments is characterized by a negative approach.759 The raison d’être is certainly the will to protect as many people as possible and only exclude those who are definitely not to be protected as such. The crime of attacks on civilians is based upon Article 51(2) of AP I and Article 13(2) of AP II to the Geneva Conventions.760 Pursuant to these articles, “the civilian population as such, as well as individual civilians, shall not be made the object of attack”. The parties to the conflict shall not commit acts or threats of violence the primary purpose of which is to spread terror among the civilian population. Article 4(a) of the SCSL Statute criminalizes the act of intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities.761 Again the protection of civilians in armed conflicts, regardless of the nature of the conflict, amounts to customary international law since states irrespective of the legal system applicable in their territory guarantees this protection.762

757 ICTY, The Prosecutor v. D. Milošević, Case No. IT-98-29 / 1-T, Judgment, 12 December 2007, paras. 945 – 947. 758 Ibid. 759 See for example the Cameroon’s Instructors Manual that defines civilians as “persons who are neither part of the armed forces nor participating in a levée en masse” (Cameroon’s Instructors Manual, 1992, p. 17); the Netherlands Military Manual defines a civilian as “every person who is not a combatant” (Netherlands Military Manual, 1993, p. V – 2); the US Air Force pamphlet defines civilians as “all persons other than those mentioned as combatants in [Article 4(A) GC III]” (US Air Force Pamphlet, 1976, paras. 1, 2 & 5). 760 Cf. Articles 52(2) of AP I. 761 Cf. Article 4(a), SCSL Statute.

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The jurisprudence of the ICTY has since the Tadić case in 1995 affirmed that a customary norm exists that protects civilians from hostilities in non-international armed conflicts.763 In the Kupreskić case, the ICTY Trial Chamber stated that: “The protection of civilians in time of armed conflict, whether international or internal, is the bedrock of modern humanitarian law […] Indeed, it is now a universally recognized principle, recently restated by the International Court of Justice [in the Nuclear Weapons case], that deliberate attacks on civilians or civilian objects are absolutely prohibited by international humanitarian law.”764

Thus, the prohibition on intentionally directing attacks against civilians applies both in international and internal armed conflicts. It is considered as one of the cornerstones of international humanitarian law.765

3. The Practice of the Special Court The Special Court acknowledged that the offence of attacking personnel or objects involved in a humanitarian assistance or peacekeeping mission was first explicitly identified as a war crime in the ICC Statute.766 However, it specified that this did not amount to a new crime but rather should be regarded as a particularization of the general and fundamental prohibition in international humanitarian law against attacks on civilians and civilian objects.767 The “non-combatant immunity 762 Cf. Cameroon’s Instructors Manual (1992), which requires that the civilian population be protected and respected during military operations; Germany’s Military Manual states that the prohibition of indiscriminate warfare implies that the civilian population as such as well as individual civilians shall not be the object of attack and that they shall be spared as far as possible (Germany Military Manual (Humanitäres Völkerrecht in bewaffneten Konflikten – Handbuch – 1992); Israel’s Law of War Booklet, the Report of the Practice of Israel states that the Israeli Defence Force (IDF) is “extremely conscious of the necessity to differentiate between civilians and legitimate targets. Attacks on civilians are strictly prohibited”, see Report on the Practice of Israel, 1997, Chapter 1.3, referring to Law of War Booklet, 1986, Chapter 1. For more on state practice vis-a-vis the protection of civilians in armed conflicts, see Jean-Marie Henckaerts / L. Doswald-Beck, Customary International Humanitarian Law, Vol. I: Rules, International Committee of the Red Cross, 2005, Vol. II, pp. 24 et seq. 763 ICTY, Tadić Appeal Decision on Jurisdiction Tadić Appeal Decision on Jurisdiction, paras. 100 – 127; ICTY, Blaškić Trial Judgment, para. 180; ICTY, The Prosecutor v. Kordić and Čerkez, Case No.IT-95-14, Decision on the Joint Defence Motion, 2 March 1999, para. 31; ICTY, The Prosecutor v. Pavle Strugar et al., Case No. IT-01-42-AR72, Decision on Interlocutory Appeal, 22 November 2002, para. 9. 764 ICTY, The Prosecutor v. Kupreškić, Case No. IT-95-16-T, Judgment, 14 January 2000, para. 521. 765 Cf. Lawyers’ Guide to the Special Court for Sierra Leone, No Peace without Justice, 10 March 2004, p. 29. 766 Article 8(2)(b)(iii) of the ICC Statute identifies the offence as a war crime in international conflicts. See SCSL, Sesay, Kallon, Gbao Trial Judgment, para. 214. 767 SCSL, Sesay, Kallon, Gbao Trial Judgment, para. 215 citing the Report of the Secretary-General, 4 October 2000, supra note 15, para. 16: “Attacks against peacekeeping person-

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[…] has been a fundamental principle of the law of armed conflict for centuries”.768 This is also known as the ‘principle of distinction’; a principle which spells out that a distinction must be made between civilians and combatants when directing an attack during an armed conflict.769 This principle strives to protect those who are not actively (directly) participating in armed conflict from its effects by prohibiting direct attacks upon civilians or civilian objects that do not amount to legitimate military objectives.770 Moreover, the Special Court, having recognized that there had not been any jurisprudence defining peacekeeping missions in accordance with the UN Charter, went on to endorse the current UN definition of peacekeeping and establish its basic principles.771 It outlined what it considered as the three basic principles of peacekeeping namely: consent of the parties, impartiality, and non-use of force except in self-defence and defence of the mandate.772 In the absence of either of these criteria, the mandate of the peacekeeping mission would severely be undermined. The consent to have the peacekeeping mission deployed on the territory in question needs to be obtained from the host country, or in situations of internal conflicts, from the warring factions within the country.773 The absence of such consent from the warring

nel, to the extent that they are entitled to protection recognized under international law to civilians in armed conflict, do not represent a new crime. Although established for the first time as an international crime in the Statute of the International Court, it was not viewed at the time of the adoption of the Rome Statute as adding to the already existing customary international law crime of attacks against civilians and persons hors de combat. Based on the distinction between peacekeepers as civilians and peacekeepers turned combatants, the crime defined in article 4 of the Statute of the Special Court is a specification of a targeted group within the generally protected group of civilians which because of its humanitarian or peacekeeping mission deserves special protection.” 768 Cf. Judith Gardam, Non-Combatant Immunity as a Norm of International Humanitarian Law, Martinus Nijhoff Publishers, Dordrecht / Boston / London, 1993, p. 143. 769 Cf. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, ICJ Reports 1986, para. 218. In the same direction, the Institute of International Law affirmed in 1969 that “[t]he obligation to respect the distinction between military objectives and non-military objects, as well as between persons participating in the hostilities and members of the civilian population, remains a fundamental principle of the international law in force” (quoted in Caflisch, Summary of the Conference, in Report of the Conference on Contemporary Problems of the Law of Armed Conflicts, 63, 1971, p. 72. 770 Cf. Article 22, General Orders No. 100, U.S. Department of Army, Instructions for the Government of Armies of the United States in the Field, 24 April 1863 [Lieber Code]; ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 ICJ Report 226, 8 July 1996, para. 78. 771 SCSL, Sesay, Kallon, Gbao Trial Judgment, paras. 224 – 225. 772 SCSL, Sesay, Kallon, Gbao Trial Judgment, para. 225. 773 Cf. Mohamed Bangura, Prosecuting the Crime of Attack on Peacekeepers, supra note 618, p. 168.

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factions, leads to the perception that the mission is impartial and this leads to hostility against the mission. The Special Court jurisprudence has in this light greatly contributed to the development of international humanitarian law by providing virtual elements to assist in distinguishing between peacekeeping missions and enforcement actions. This jurisprudence was applied by the ICC in the Prosecutor v. Bahar Idriss Abu Garda case wherein the accused was charged inter alia with intentionally attacking personnel and installations, material, units or vehicles of the AMIS.774 The Special Court has also been instrumental in the elucidation of these principles It should be noted that the above-listed principles of peacekeeping do not apply to enforcement actions authorized by the Security Council under Chapter VII.775 While peacekeeping missions require the consent of the main parties to a conflict, enforcement actions do not require such consent but rather rely on the binding nature of UNSC Resolutions pursuant to Chapter VII. However, taking into consideration the above listed principles, the ECOMOG forces that were heavily armed and successfully attempted to recover Freetown from the RUF forces in February 1998, should not legitimately be found to be peacekeepers. In the same light, UNAMSIL did not seem to be on the ground on the basis of the consent from the warring groups. This can be illustrated by a statement made by Ambassador Oluyemi Adeniyi, the then Special Representative of the UN Secretary-General in Sierra Leone. In addressing the tenuous relations that existed between the RUF and UNAMSIL, he stated that: “[f]rom its induction in Sierra Leone, Sankoh had displayed an antagonism which proved implacable to the UN Mission (UNAMSIL). He denounced its deployment as illegal and inconsistent with the Lomé Peace Agreement, done without his agreement and threatening to his party. Every effort made to explain the link between UNAMSIL and Article XVI of the Lomé Peace Agreement met with a pretence at understanding only for UNAMSIL to be denounced again shortly after. With that posture, RUF obstructed UNAMSIL from deployment throughout the country, protection of innocent Sierra Leoneans and others from gross violation of their human rights and assisting the extension of the authority of the Government of National Unity throughout the country.”776

Be that as it may, the importance of the jurisprudence of the Special Court in relation to the offence of attacking personnel or objects involved in a humanitarian assistance or peacekeeping mission cannot be overemphasized. This is so because it 774 ICC, Prosecutor v. Bahr Idriss Abu Garda, Case No. ICC-02 / 05-02 / 09, Decision on the Confirmation of Charges, 8 February 2010, para. 91. 775 SCSL, Sesay, Kallon, Gbao Trial Judgment, para. 230. Article 42 of the UN Charter authorizes the Security Council to “take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security.” 776 Reported to 3rd Joint Implementation Committee Meeting, 13 May 2000, in Dennis Bright, Implementing the Lomé Peace Agreement, 2000, p. 2, available at: http: // www.c-r. org / our-work / accord / sierra-leone / implementing-Lomé.php.

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was the first time that an international tribunal specifically addressed this issue, dwelling inter alia on the nature of the crime and its applicability in international humanitarian law. The setting up and application of the elements of the crime of attacking personnel or objects involved in a humanitarian assistance or peacekeeping mission is a great contribution in the development of international humanitarian law. The Special Court jurisprudence holds that the elements of the offence of intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the UN are the following: (1) The Accused directed an attack against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the UN; (2) the Accused intended such personnel, installations, material, units or vehicles to be the object of the attack; (3) such personnel, installations, material, units or vehicles were entitled to that protection given to civilians or civilian objects under the international law of armed conflict; and (4) the Accused knew or had reason to know that the personnel, installations, material, units or vehicles were protected.777 Considering the fact that the Special Court and the ICC are the only international criminal courts whose statutes expressly punish the crime of attacking peacekeepers, and that the Elements of Crimes contained in the ICC Statute were spelled out in 1998 and the Special Court only came into existence in 2002, it is clear that the Judges of the Special Court inspired themselves from the Elements of Crimes of the ICC Statute. An analysis of these elements points out that the threshold for the objective elements is lower than that of the subjective elements. The following analysis of the elements of the crime of attacking personnel and material involved in a peacekeeping mission would also include the jurisprudence of the ICC thus far.

a) The Accused Directed an Attack against Personnel, Installations, Material, Units or Vehicles Involved in a Humanitarian Assistance or Peacekeeping Mission in Accordance with the Charter of the United Nations The Special Court jurisprudence holds that it suffices that the personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission were the [primary] target of the attack. In other words, there is no need for there to have been an actual damage to the personnel or objects as a result 777

SCSL, Sesay, Kallon, Gbao Trial Judgment, para. 219.

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of the attack, before the elements of the actus reus of the offence are met.778 Therefore it could be said that the attempt – through an attack – to infringe damage to personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping suffices to satisfy this requirement. The ICC Pre-Trial Chamber I previously held that “[t]he attempt to commit a crime is a crime in which the objective elements are incomplete, while the subjective elements are complete”.779 The ICC jurisprudence is consistent with that of the Special Court and it goes further to point out that the essential part of this element is the establishment of the causal link between the perpetrator’s conduct and the consequence i.e. the attack.780 The Special Court and the ICC both defined the word “attack” as meaning an ‘act of violence’ as defined in Article 49 AP I to the Geneva Conventions of 1949.781 Thus the mere threat of violence would not suffice to satisfy this element. Sivakumaran however, interestingly points out that, while it is widely acknowledged that the protection awarded to peacekeepers during an armed conflict is the same awarded to civilians in an armed conflict, there exists a considerable difference. The SCSL Statute – as well as the Rome Statute – expressly criminalizes the attack on civilians but not civilian objects in non-international armed conflicts.782 It as well criminalizes the attack on installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission. Thus, this can be viewed as a novelty in international criminal law. While the Special Court abstained from prosecuting anyone for this crime, the ICC (OTP) in the Abu Gharda case did attempt to prosecute Abu Gharda for attacking personnel and installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission.783 The PreTrial Chamber nevertheless denied confirming the charges against Abu Gharda.784

Ibid., para. 220. ICC, Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, Case No. 01 / 0401 / 07-717, Decision on the Confirmation of Charges, Public Redacted Version, 30 September 2008, para. 460. 780 ICC, Prosecutor v. Bahr Idriss Abu Garda, Case No. ICC-02 / 05-02 / 09, Decision on the Confirmation of Charges, 8 February 2010, paras. 64 – 67. This element as set out by the Judges of the Special Court is similar to that of Art. 8(2)(e)(iii), ICC Statute. For further discussion on the Elements of Crimes of the ICC see Gerhard Werle, Principles of International Criminal Law, supra note 294, pp. 250 et seq. 781 ICC, The Prosecutor v. Bahr Idriss Abu Garda, Case No. ICC-02 / 05-02 / 09, Decision on the Confirmation of Charges, 8 February 2010, para. 65; SCSL, Sesay, Kallon, Gbao Trial Judgment, para. 77. 782 Art. 8(e)(iv) ICC Statute dealing with other serious violations of the laws and customs applicable in non-international armed conflicts, however prohibits the act of ‘intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives’. It is hence clear that if these civilian objects were military objectives they would not be protected under this provision. 783 ICC, The Prosecutor v. Bahr Idriss Abu Garda, Case No. ICC-02 / 05-02 / 09, Decision on the Confirmation of Charges, 8 February 2010, paras. 27, 65 et seq. 778 779

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However, the ICC (Pre-Trial Chamber I) recently confirmed the charges against Abdallah Banda Abakaer Nourain and Saleh Mohammed Jerbo Jamus (“Abdallah Banda and Saleh Jerbo”) for the same crime.785 The ICC (OTP) charged Abdallah Banda and Saleh Jerbo as follows: “On 29 September 2007, at the MGS Haskanita in Haskanita Village, Um Kadada Locality in North Darfur, the Sudan, in the context of and associated with an internal armed conflict, [Abdallah Banda and Saleh Jerbo] together with JEM Splinter Group, SLA Unity and SLA Abdul Shafie forces under their command and control, acting pursuant to a common plan and orders issued by them, jointly with their forces intentionally directed attacks against AMIS peacekeeping personnel, installations, materials, units and vehicles involved in a peacekeeping mission established in accordance with the Charter of the United Nations, which were entitled to the protection given to civilians and civilian objects under the international law of armed conflict, with the knowledge of the factual circumstances that established that protection, thereby committing a crime in violation of Articles 8(2)(e)(iii) and 25(3)(a) of the Rome Statute.”786

b) The Accused Intended such Personnel, Installations, Material, Units or Vehicles to be the Object of the Attack The Special Court jurisprudence by holding that there is no need to prove actual damage to personnel or the objects of the attack, clearly points out that what is being punished is the intention and the act and not the consequence of the act. This could be seen as a further difference between the ICC and the Special Court on one hand and the ad hoc Tribunals on the other hand. The Special Court and the ICC thus punish the crime at its early stage and do not require any damage to the persons or materials protected while the ad hoc Tribunals require the crime to have been successful before they could punish the perpetrators for the consequences thereof (murder, violence to life, health, physical or mental well-being of persons, taking of hostages, pillaging and cruel treatment). Further, on the face of it, the Special Court’s finding that ‘[t]here exist no requirement that there be actual damage to the personnel or objects as a result of the attack’ and that ‘the mere attack is the gravamen of the crime’ is somewhat contradictory to the jurisprudence of the ICTY.787 This is so because, although the ICTY has not prosecuted the offence of attacking peacekeepers, it has, in relation to attacking 784 ICC, The Prosecutor v. Bahr Idriss Abu Garda, Case No. ICC-02 / 05-02 / 09, Decision on the Confirmation of Charges, 8 February 2010, paras. 231 – 236. 785 ICC, The Prosecutor v. Abdallah Banda Abakaer Nourain and Saleh Mohammed Jerbo Jamus, Case No. ICC-02 / 05-03 / 09, Corrigendum of the ‘Decision on the Confirmation of Charges’, Public Redacted Version, 7 March 2011, para. 163. 786 Ibid., para. 59. 787 SCSL, Sesay, Kallon, Gbao Trial Judgment, para. 220; ICTY, Kordić and Čerkez Appeal Judgment, paras. 55 – 67; ICTY, Kordić and Čerkez Trial Judgment, para. 328; ICTY, Blaškić Trial Judgment, para. 180.

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civilians, found that the unlawful attack must have resulted in death or injury i.e. there must be actual damage.788 In the same light, it is undisputed that peacekeepers are afforded the same protection as civilians, who so long as they are not actively taking part in an armed conflict cannot be regarded as legitimate targets. Consequently, in light of the fact that the Special Court – in order to harmonise the law – was urged to apply ICTY and ICTR jurisprudence, the ICTY finding should have been applicable to peacekeepers or at least the Special Court should have justified its reason for parting from this jurisprudence. Nevertheless, the ICTY recognized that the Rome Statute may be indicative of a progressive development of international law on this issue.789 This fact advocates for the insertion of this crime in the statute of future, if any, international criminal courts that would be created.

c) Such Personnel, Installations, Material, Units or Vehicles were Entitled to that Protection Given to Civilians or Civilian Objects under the International Law of Armed Conflict It should be noted that the attack against personnel and material involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the UN, constitutes a crime under international humanitarian law so long as the personnel and material in question were entitled to the protection given to civilians and civilian objects under international humanitarian law.790 The Pre-Trial Chamber in the Prosecutor v. Abdallah Banda and Saleh Jerbo case recalled the findings made in the Abu Garda case relating to AMIS personnel and installations. It opined that “[AMIS personnel] enjoy protection from attacks unless and for such time as they take a direct part in hostilities or in combat-related activities”.791 In the same light, “AMIS installations, material, units or vehicles shall be entitled to the protection given to civilian objects, unless and for such time as their nature, location, purpose or use make an effective contribution to the military action of a party to a conflict and insofar as their total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.”792 ICTY, Kordić and Čerkez Appeal Judgment, paras. 55 – 67. Ibid., para. 74. 790 ICC, The Prosecutor v. Bahr Idriss Abu Garda, Case No. ICC-02 / 05-02 / 09, Decision on the Confirmation of Charges, 8 February 2010, para. 77. 791 ICC, The Prosecutor v. Abdallah Banda Abakaer Nourain and Saleh Mohammed Jerbo Jamus, Case No. ICC-02 / 05-03 / 09, Corrigendum of the ‘Decision on the Confirmation of Charges’, Public Redacted Version, 7 March 2011, para. 66, ICC, The Prosecutor v. Bahr Idriss Abu Garda, Case No. ICC-02 / 05-02 / 09, Decision on the Confirmation of Charges, 8 February 2010, paras. 83 – 84. 792 Ibid. 788 789

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This protection is thus restrictive and does not apply to enforcement operations mandated by the UN. Peacekeepers are considered to be entitled to the same protection as civilians, who, so long as they do not directly take part in hostilities are considered as illegitimate targets during a conflict. Likewise, similar to civilians, this protection is not absolute and can be lost if at the time of the alleged offence, the peacekeepers were directly taking part in the hostilities. It is worthy of note that this protection is not lost if the use of armed force by the peacekeepers was merely in exercising their right to individual self-defence in the discharge of their mandate.793 On the other hand, when UN forces are actively engaged as combatants in an armed conflict, they too are bound by the fundamental principles and rules of international humanitarian law.794 Having said that, it is difficult and yet of vital importance to be able to identify at what point such a protection is lost and in this regard the jurisprudence of the Special Court is of great assistance. In the Sesay et al. case, the Trial Chamber held that in determining whether the peacekeeping personnel or the objects of a peacekeeping mission are entitled to civilian protection, the following indicia must be considered: (1) the relevant Security Council resolutions for the operation; (2) the role and practices actually adopted by the peacekeeping mission during the particular conflict; (3) their rules of engagement and operational orders; (4) the nature of the arms and equipment used by the peacekeeping force; (5) the interaction between the peacekeeping force and the parties involved in the conflict, and (6) the nature and frequency of such force and the conduct of the alleged victim(s) and their fellow personnel.795 Having applied these criteria, both the Trial Chamber, as well as the Appeals Chamber found that UNAMSIL personnel were entitled to civilian protection and could not have been considered to be taking direct part in the conflict.796

d) The Accused Knew or had Reason to Know that the Personnel, Installations, Material, Units or Vehicles were Protected In looking at the mental elements, one notices that it is necessary to prove (1) that the Accused intended that personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, be the object of the attack; and (2) that the Accused

793 SCSL, Sesay, Kallon, Gbao Trial Judgment, para. 233. See also ICC, The Prosecutor v. Bahr Idriss Abu Garda, Case No. ICC-02 / 05-02 / 09, Decision on the Confirmation of Charges, 8 February 2010, para. 84. 794 Cf. United Nations Secretary-General’s Bulletin on Observance by United Nations Forces of International Humanitarian Law, UN Doc. ST / SGB / 1993 / 3. 795 SCSL, Sesay, Kallon, Gbao Trial Judgment, para. 234. 796 SCSL, The Prosecutor v. Issa Sesay, Morris Kallon, Augustine Gbao, Case No. SCSL04-15-A, Appeal Judgment, 26 October 2009, para. 531; SCSL, Sesay, Kallon, Gbao Trial Judgment, paras. 1925 – 1937.

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knew or had reason to know of the protected status of the personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations. Therefore, the need to prove that these personnel, installations, material, units or vehicles were the primary target of the attack renders this offence to be one with a specific intent, thus establishing a higher threshold vis-à-vis crimes that do not need the establishment of a specific intent.797 Further, it is also difficult to prove that their protective status was a fact that the accused was aware of. Although this knowledge must not be legal in nature i.e. as provided under international humanitarian law, it must however be established that the Accused knew or had reason to know of the factual basis of such a protection.798 Therefore, it is not necessary that the accused be aware of which legal provision grants the personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission special protection. What is required is that the accused knew as a fact that these persons / objects were protected and ought not to be attacked. However, like any mental state, the wordings “knew or had reason to know”, as enshrined in the ICC Elements of Crime permit a conclusion based on circumstantial evidence. Thus even if it is not proven that the accused knew of such a protection, if the Prosecution is able to establish that the circumstantial evidence is such that the accused should have been aware, then this subjective element would have been fulfilled. With regard to the ICC, the Pre-Trial Chamber in the Abu Garda case,799 – in addition to the above-mentioned elements – analyzed additional elements contained in Article 8(2)(e)(iii) of the Elements of Crimes of the ICC which contain further elements such as the fact that “the conduct took place in the context of and was associated with an armed conflict not of an international character” and that “the perpetrator was aware of actual circumstances that established the existence of an armed conflict”. It is thus necessary to establish that the conflict could be characterized as one not of an international character. In this light the Pre-Trial Chamber reaffirmed its holding from the Lubanga case that “the involvement of armed groups with some degree of organization and the ability to plan and carry out sustained military operations would allow for the conflict to be characterized as an armed conflict not of an international character”.800 Hence, while the ICC and Special Court jurisprudence appear to be consistent, it is worthy to note that the threshold in relation to the subjective element differs. While the Special Court requires that the accused “knew or had reason to know”, the ICC requires that the perpetrator was “aware of the factual circumstances”. Thus, as discussed above, the ability to present circumstantial evidence that should SCSL, Sesay, Kallon, Gbao Trial Judgment, para. 232. Ibid., paras. 235. 799 ICC, The Prosecutor v. Bahr Idriss Abu Garda, Case No. ICC-02 / 05-02 / 09, Decision on the Confirmation of Charges, 8 February 2010, paras. 60 – 92. 800 Ibid., para. 91. 797 798

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have put the accused on notice in relation to the protection awarded to peacekeepers would suffice to fulfill the mental element at the Special Court. At the ICC, such circumstantial evidence would not suffice since it is required that the perpetrator be aware of the protection that the peacekeepers ought to benefit from. In comparison with the Special Court, this appears to be a higher threshold, since it would be more difficult to establish that the perpetrator did in fact know that the peacekeepers were entitled to the same protection awarded to civilians in an armed conflict.

III. Conscripting or Enlisting of Children under the Age of 15 Years into Armed Forces or Groups or Using them to Participate Actively in Hostilities 1. General Remarks It is unconscionable that we so clearly and consistently see children’s rights attacked and that we fail to defend them. It is unforgivable that children are assaulted, violated, murdered and yet our conscience is not revolted nor our sense of dignity challenged. This represents a fundamental crisis of our civilization. The impact of armed conflict on children must be everyone’s concern and is everyone’s responsibility; governments, international organizations and every element of civil society.801 The conscription or enlistment of an individual into armed forces or groups is not per se a crime. However what renders this act a crime is exactly when this individual is considered to be a child. Thus an important element in this crime is the qualification of the individual as a child. It is therefore imperative to define what a child is before examining the foundation of this crime; i.e. the prevailing customary law at the time relevant to the indictments before the Special Court. This is important because in the absence of a positive answer to this question, the legitimacy of prosecuting individuals for the crime of conscripting and enlisting child soldiers and their use to participate in hostilities would be questioned. Considering the fact that the SCSL Statute was drafted in 2000 i.e. several years after the said crimes were committed, relying solely on it in order prosecute anyone – in relation to this crime – would be a violation of the principle of nullim crimen sine lege. Admittedly, one could rely on the Eichmann jurisprudence – that the principle nullim crimen sine lege does not negate retroactive penal legislation – to contradict this position. In this case, the Israeli District Court of Jerusalem held that: “[t]here is no rule of general customary international law forbidding the enactment of norms with retrospective force”.802 However, this position is faulty and was merely an attempt by the 801 Cf. Gracia Machel, The Impact of Armed Conflict on Children: A Critical Review of Progress Made and Obstacles Encountered in Increasing Protection for War-Affected Children, International Conference on War Affected Children, Winnipeg, 2000, available at: http: // www.unifem.undo.undp.org / machelrep.html.

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Israeli justice system to justify its application of a law which was inexistent at the time the crimes for which Eichmann was being charged were committed.803 Moreover, the UN Secretary-General – addressing the issue of the insertion of customary international law in the ICTY’s jurisdiction ratione materiae – in his Report on the Establishment of the ICTY, stated that: “[t]he application of the principle nullim crimen sine lege requires that the international tribunal should apply rules of international humanitarian law which are beyond any doubt part of customary law […]”.804 Therefore, after determining whether conscripting and enlisting child soldiers as well as their use to participate in hostilities amounted to customary international law, we shall then analyze the other elements of the crime, thereby addressing the issue of whether the protection awarded to children in conflicts is limited to those directly participating in the hostilities or does it extend to other activities carried out by children during a conflict such as spying, guarding military posts, serving as boy guards to commanders etc. Article 1 of the Convention on the Rights of the Child states that: “[F]or the purposes of the present Convention, a child means every human being below the age of 18 years unless, under the law applicable to the child, majority is attained earlier.”805

While this definition could be criticized for not being entirely objective – it makes reference to national legislations which vary and are subjective – it is the definition that is generally accepted today in international law. The Cameroon law relating to the fight against the traffic and use of children defines a child as “toute personne de l’un ou l’autre sexe âgé de moins de 18 ans”.806 It should be noted that there is no definition of a ‘child’ in international humanitarian law. Even the legal instruments which expressly address the well-being of children such as the 1949 Geneva Conventions and their 1977 APs fail to provide a definition of a child.807 There has only been the establishment of an age limitation, albeit the variation of this age depending on the legal instrument. This disaccord 802 District Court of Jerusalem, Attorney-Genral of the Government of Israel v. Eichmann, 36 International Law Review 18, 1961, p. 5. 803 The author notes however that this is the opinion of a domestic court and should be viewed as such. 804 Cf. Report of the Secretary-General Pursuant to Paragraph 2 of SC Resolution 808 (1993), 3 May 1993, UN Doc. S / 25704 and Add.1, para. 34, available at: http: // untreaty.un. org / cod / avl / ha / icty / icty.html. 805 United Nations Convention on the Rights of the Child, 20 November 1989, UNTS 3. 806 Cf. Loi No. 2005 / 015 du 29 Décembre Relative à la Lutte Contre le Trafic et la Traite des Enfants, Article 2(a) in Official Gazette of the Republic of Cameroon, 46th Year – No Special Issue 1, 20 March 2006. 807 Cf. Magali Maystre, Les Enfants Soldats en Droit International, Problématiques Contemporaines au Regard du Droit International Humanitaire et du Droit International Pénal, Perspectives Internationales No. 30, Editions A. Pedone, Paris, 2010, p. 33.

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with regard to the applicable age can be clearly seen in the paragraphs below wherein the various instruments that prohibit the recruitment and use of children as combatants is discussed. Maystre criticizes this intentional use of only an objective criterion to establish when an individual should be considered as a child. In her view, although this approach is “relatively useful and simple” in determining what rights and obligations would be applicable in a particular context, it ignores certain cultural values and rituals which are used in determining if an individual has attained maturity or could be viewed as an adult.808 Further, Maystre avers that in several societies, there exist a ceremony of initiation which marks the basis for the transformation from a child to an adult, e.g. in some societies the participation in combat activities marks such a transformation.809 However, this argument cannot be adhered to. There are indeed several rituals, which vary depending on the society. It is therefore impossible to take into consideration all rituals that exist in order to define a child. Moreover, bearing in mind the fact that international humanitarian law ought to apply equally to all regardless of which society s / he belongs to, or which State one finds him / herself, it would have been wrong to apply subjective criteria such as culture. The use of age is an objective criterion and it guarantees the same standards for all. What needs to be done now is the harmonization of the age limit that should apply. For the sake of this analysis we shall adopt the definition of a child as set out in the Convention of the Rights of the Child. With regard to the conflict in Sierra Leone, it was characterized by egregious abuses committed against children. All factions recruited child soldiers and children were also used as slaves for all kinds of conflict-supporting activities.810 In 2002, analysis showed that children were actively participating in 37 of the 55 ongoing or recently concluded conflicts.811 Although not binding on States due to its nature as soft law, the Cape Town Principles define a child soldier as; “[a]ny person under 18 years of age who is part of any kind of regular or irregular armed force or armed group in any capacity, including but not limited to cooks, porters, messengers and anyone accompanying such groups, other than family members. The Definition includes girls recruited for sexual purposes and for forced marriage. It does not therefore refer to a child who is carrying or has carried arms.”812

Ibid., p. 32. Ibid., p. 33, with further reference to Alison Dundes Renteln, The Child Soldier: The Challenge of Enforcing International Standards, 21 Whittier Law Review 1, Fall 1999, p. 202. 810 Cf. Witness to Truth: Report of the Sierra Leone Truth and Reconciliation Commission, Volume 1, Chapter 1, Mandate, p. 25. 811 Cf. Stephanie H. Bald, Searching for a Lost Childhood: Will the Special Court of Sierra Leone Find Justice for its Children?, 18 American University International Review 2, 2002, p. 540. 808 809

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Although the age limit applicable to the Special Court differs from that of the above definition, the relevance of the definition can be seen by the fact that it is broad enough to include several forms by which a child could be involved in a conflict. This broad interpretation reflects the jurisprudence of the Special Court on this issue – as would be discussed below. 2. Foundation of the Crime The crime of recruitment of child soldiers i.e. the conscription, enlistment and use of children under the age of 15 to participate in hostilities, was prosecuted for the first time before an international criminal tribunal at the Special Court.813 The Special Court’s jurisprudence on this represents the first legal analysis by an international criminal institution of the war crime of “conscripting or enlisting children under the age of 15 years into armed forces or groups, or using them to participate actively in hostilities.”814 In this respect, the jurisprudence emanating from the Special Court’s Appeals Chamber could be viewed as a milestone in the enforcement of the crime of child recruitment as well as a major development in international humanitarian law.815 The Special Court was called upon to address this crime in the early days of its existence. On 26 June 2003, Counsel for Chief Samuel Hinga Norman filed a preliminary Motion challenging the charge against the Accused Norman on the grounds that child recruitment was not a crime under customary international law at the time relevant to the indictment and that the Special Court consequently lacked jurisdiction in relation to this count of the indictment.816 The issue of interest here and which the Special Court’s Appeals Chamber as well – partly – addressed is first and foremost whether the conscription, enlistment 812 Cf. Cape Town Principles and Best Practices, adopted at the Symposium on the Prevention of Recruitment of Children into the Armed Forces and on Demobilization, and Social Reintergration of Child Soldiers in Africa, Cape Town, 30 April 1997, p. 11. 813 SCSL, The Prosecutor v. Samuel Hinga Norman, Case No. SCSL-2004-14-AR729E, Decision on Preliminary Motion Based on Lack of Jurisdiction (Child Recruitment), 31 May 2004, para. 17. Pursuant to Rule 72(E) of the Special Court’s RPE. 814 Cf. Valerie Oosterveld, Special Court for Sierra Leone Judgment on Recruitment and Use of Child Soldier’s, 101 Am. J. Int’l L. 4, 2007, p. 850. 815 The AFRC and CDF Judgments represent the first-ever international convictions for the recruitment and use of child soldiers. 816 Cf. Alison Smith, Child Recruitment and the Special Court for Sierra Leone, 2 JICJ 4, 2004, pp. 1141 – 1153. The Defence Motion challenging the Special Court’s jurisdiction to try Hinga Norman for crimes under Article 4(c) on the ground that the crime of child recruitment did not amount to customary international law at the time relevant to the conflict was directly referred to the Appeals Chamber. Rule 72 (E) of the Special Court Rules requires that preliminary motions which raise a serious issue relating to jurisdiction be referred directly to the Appeals Chamber. See also The Prosecutor v. Issa Sesay, Morris Kallon and Augustine Gbao, Case No. SCSL-2004-15-PT, 2 August 2006, Amended Indictment, para. 68.

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and use of children under the age of 15 to participate in hostilities amounted to customary international law at the time relevant to the indictment i.e. by 1996. The sub-categorization of this crime under “other serious violations of international humanitarian law”, points out that the charge relating to child soldiers was not explicitly tied to a binding treaty provision applicable in non-international armed conflicts and therefore applicable to non-State actors.817 Another issue to be analyzed is, if at all this crime amounted to customary international law, what are the elements of the crime? The importance of assessing whether the prohibition of the recruitment of child soldiers amounted to customary international law cannot be over emphasized. It was relevant for the Special Court in order to determine whether this crime existed at the time relevant to the indictment. This determination aimed at ensuring that the legal principle nullum crimen sine lege is not being violated. However, the absence of a foundation of this crime in customary international law at the time relevant to the indictments at the Special Court would oblige us to examine whether Sierra Leone was a party to the relevant legal instruments that prohibit such an act. It should be noted that in accordance with Article 34 of the Vienna Convention on the Law of Treaties – in the absence of such a finding as to the customary international law nature of the prohibition of the recruitment of child soldiers – the none-State actors as well as the State actors are only bound by the obligations which emanate from treaties and conventions to which they are signatories.818 Customary international law applies to all States and is regarded as the minimum standards applicable to all States. The non-respect of these standards results in the State(s) having violated its international obligations. However, before analyzing the aforementioned issues, it is worth briefly reflecting on the concept of ‘customary international law’. The aim of this reflection is to assist in the understanding of the discussion that would follow thereafter.

3. The Conscripting or Enlisting of Children under the Age of 15 Years into Armed Forces or Groups or Using them to Participate Actively in Hostilities as Customary International Law? The Statute of the International Court of Justice (hereinafter ICJ) describes customary international law as “a general practice accepted as law”.819 Customary in817 Cf. Phoebe Knowles, The Power to Prosecute: the Special Court for Sierra Leone from a Defence Perspective, 6 ICLR 3, 2006, p. 411. 818 Cf. Vienna Convention on the Law of Treaties, 1155 UNTS 331, 23 May 1969, entry into force 27 January 1980, Articles 34, 38, available at: http: //untreaty.un.org/ilc/texts/instru ments/english/conventions/1_1_1969.pdf. 819 Cf. Article 38(1)(b), International Court of Justice Statute, 3 Bevans 1179; 59 Stat. 1031; T.S. 993; 39 AJIL Supp. 215 (1945) (ICJ Statute).

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ternational law requires the existence of State practice (usus) and that this practice be required, prohibited or allowed, depending on the nature of the rule, as a matter of law (opinion juris sive necessitates).820 According to ICJ jurisprudence, customary international law requires the existence of state practice that is ‘both extensive and virtually uniform in the sense of the provision invoked; – and should moreover have occurred in such a way as to show a general recognition that a rule of law or legal obligation is involved’.821 Having established what amounts to customary international law, it is worth looking at State practice vis-à-vis the crime of conscription, enlistment and use of children under the age of 15 to participate in hostilities. The behavior of States towards international agreements contributes to the creation of customary international law.822 In this light, we shall view existing international instruments that prohibit the recruitment and use of child soldiers in order to ascertain whether this crime amounted to customary international law. The recruitment and use of children in armed conflict was explicitly prohibited for the first time in Aps I and II of 1977, which apply to international and non-international armed conflicts respectively.823 Both protocols state that children who have not attained the age of 15 years shall neither be recruited in the armed forces nor allowed to take part in hostilities. Article 77 of AP I, which deals with the protection of children, provides in its relevant part that:

820 Cf. Jean-Marie Henckaerts / L. Doswald-Beck, Customary International Humanitarian Law, Vol. I: Rules, International Committee of the Red Cross, 2005, p. xxxii. 821 ICJ, North Sea Continental Shelf Cases, Judgment, 20 February 1969, ICJ Reports 1969, para. 74. See also Continental Shelf case (Libyan Arab Jamahiriya v. Malta), Judgment, 3 June 1985, ICJ Reports 1985, pp. 29 – 30, para. 27. The ICJ held that “[i]t is of course axiomatic that the material of customary international law is to be looked for primarily in the actual practice and opinio juris of States”. 822 Cf. Jean-Marie Henckaerts / L. Doswald-Beck, Customary International Humanitarian Law, Vol. I: Rules, International Committee of the Red Cross, 2005, p. xxxii. The ICRC states that: “[B]oth physical and verbal acts of States constitute practice that contributes to the creation of customary international law. Physical acts include, for example, battlefield behavior, the use of certain weapons and the treatment provided to different categories of persons. Verbal acts include military manuals, national legislation, national case-law, instructions to armed and security forces, military communiqués during war, diplomatic protests, opinion of official legal advisers, comments by governments on draft treaties, executive decisions and regulations, pleadings before international tribunals, statements in international organizations and at international conferences and government positions taken with respect to resolutions of international organizations.” 823 Although Sierra Leone has ratified both the Geneva Conventions, as well as the APs (Sierra Leone acceded to the Geneva Conventions of 12 August 1949 on 10 June 1965 and to AP II of 8 June 1977 on 21 October 1986), it does not have a national legislation implementing them. The only related legislation is the Sierra Leone Act No. 26 of 1959 entitled “An Ordinance to enable effect to be given to certain International Conventions done at Geneva on the 12th day of August, 1949 and for purposes connected therewith”. However, it predates Sierra Leone’s accession to the aforementioned legal instruments.

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“[T]he Parties to the conflict shall take all feasible measures in order that children who have not attained the age of fifteen years do not take a direct part in hostilities and, in particular, they shall refrain from recruiting them into their armed forces. In recruiting among those persons who have attained the age of fifteen years but who have not attained the age of eighteen years the Parties to the conflict shall endeavour to give priority to those who are oldest.”824

Article 4(3)(c) of AP II provides that: “[c]hildren who have not attained the age of fifteen years shall neither be recruited in the armed forces or groups nor allowed to take part in hostilities”.825 In this regard, the Pre-Trial Chamber in the Lubanga case clarified that: “[w]hereas the preparatory work of the Protocols Additional appear to consider only the prohibition against forcible recruitment [footnote omitted], the commentary on Article 4(3) (c) of Protocol Additional II refers to ‘[t]he principle that children should not be recruited into the armed forces’ and makes clear that this principle ‘also prohibits against voluntary enlistment.”826

According to Happold this rather late insertion in APs I and II of the Geneva Conventions of the prohibition of the recruitment or use of child soldiers in an armed conflict could be justified by a number of reasons. First, at the time the Geneva Conventions were drafted, States still viewed the regulation of the participation of children in armed conflicts as an internal affair. Second, due to the fact that during the Second World War it was not established that it was common practice for children to be taking active part in the hostilities.827 Be that as it may, it should be noted that the provisions of AP II are applicable to both State actors and non-State actors. Article 1 of AP II defines the ‘material field of application’ of this protocol as the following: “[T]his Protocol, which develops and supplements Article 3 common to the Geneva Conventions of 12 August 1949 without modifying its existing conditions of application, shall apply to all armed conflicts which are not covered by Article 1 of the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I) and which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol.”828 Cf. Article 77(2), AP I. Cf. Article 4(3)(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), (‘AP II’). 826 ICC, The Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01 / 04-01 / 06, Pre-Trial Chamber I, Decision on the Confirmation of Charges, Public Redacted Version with Annex I, 29 January 2007, para. 244. 827 Matthew Happold, Child Soldiers in International Law: the Legal Regulation of Children’s Participation in Hostilities, 47 Netherlands International Law Review 1, 2000, p. 55. 824 825

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Thus, as mentioned above, AP II applies to States that have ratified this Protocol, as well as to non-State armed groups that are fighting against such States.829 With regard to the non-State armed groups, an analysis of Article 1 of AP II shows that they ought to be under a responsible command i.e. they ought to be sufficiently organized in such a way that they could carry out sustained and concerted military operations, as well as be disciplined.830 Further, they ought to exercise control over a part of the territory of a High Contracting Party against which it is combating. This issue of territorial control seems to – in light of the jurisprudence from the ICC – have lost its weight. In the Lubanga case, it was held that: “[T]he ICTY Appeals Chamber has held that an armed conflict not of an international character exist whenever there is a resort to ‘protracted armed violence between governmental authorities and organized armed groups or between such groups within a State’. [Footnote omitted] This definition echoes the two criteria of Protocol Additional II, except that the ability to carry out sustained and concerted military operations is no longer linked to territorial control. It follows that the involvement of armed groups with some degree of organization and the ability to plan and carry out sustained military operations would allow for the conflict to be characterized as an armed conflict not of an international character.”831

In addition, the conflict needs to be of a certain intensity i.e. sustained and concerted and not sporadic in nature. Likewise, is it necessary that the non-State armed groups be in a position to implement AP II.832 However, prior to the APs there existed the C138 Minimum Age Convention, which although it did not expressly prohibit the recruitment and use of children in conflicts, did prohibit all forms of child labor. Article 1 of the C138 Minimum Age Convention states that: “[E]ach Member for which this Convention is in force undertakes to pursue a national policy designed to ensure the effective abolition of child labor and to raise progressively the minimum age for admission to employment or work to a level consistent with the fullest physical and mental development of young persons.”833

Cf. Article 1, AP II. Cf. Magali Maystre, Les Enfants Soldats en Droit International, Perspectives Internationales, supra note 807, pp. 49 et seq. 830 Cf. Y. Sandoz / C. Swinarski / B. Zimmermann (eds.), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, International Committee of the Red Cross, Geneva 1986, paras. 4463 – 4470. 831 ICC, The Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01 / 04-01 / 06, Pre-Trial Chamber I, Decision on the Confirmation of Charges, Public Redacted Version with Annex I, 29 January 2007, para. 233. 832 Cf. Y. Sandoz / C. Swinarski / B. Zimmermann (eds.), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, International Committee of the Red Cross, Geneva 1986, paras. 4463 – 4470. 833 Cf. Convention Concerning Minimum Age of Admission to Employment adopted 26 June 1973 and entered into force 19 June 1976, Geneva, General Conference of the International Labour Organisation. 828 829

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Therefore, the recruitment and use of children in conflicts, which also amounts to labor is herewith prohibited. Another legal instrument which prohibits the recruitment and use of children in conflicts is the 1989 United Nations Convention on the Rights of the Child. Article 38[2] and [3] of this convention provides in its relevant part that: “[S]tates Parties shall take all feasible measures 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. In recruiting among those persons who have attained the age of fifteen years but who have not attained the age of eighteen years, States Parties shall endeavor to give priority to those who are oldest.”834

This convention does not distinguish between international and non-international armed conflicts.835 Thus, it is applicable to both types of conflicts and therefore guarantees a broader protection for children.836 This broader protection can also be seen by the fact that the 1989 Convention on the Rights of the Child requires States to submit periodic reports on efforts taken by them in the implementation of this Convention. Such reports shall also depict the factors and difficulties, if any, that the States encountered in the implementation of this Convention.837 Ilene Cohn 834 United Nations Convention on the Rights of the Child, 20 November 1989, UNTS 3. Sierra Leone ratified the 1989 United Nations Convention on the Rights of the Child on 18 June 1990. 835 Cf. Francois Bugnion, Les Enfants Soldats, le Droit International Humanitaire et la Charte Africaine des Droits et du Bien-être de l’Enfant, 12 African Journal of International and Comparative Law 2, 2000, pp. 262 – 275. 836 For more on the United Nations Convention on the Rights of the Child, see Ilene Cohn, The Convention on the Rights of the Child: What it means for Children in War, in 3 Int J Refugee Law 1, 1991, p. 101. See also Magali Maystre, Les Enfants Soldats en Droit International, Perspectives Internationales, supra note 807, pp. 52 et seq. 837 Cf. United Nations Convention on the Rights of the Child, 20 November 1989, UNTS 3. Article 44 provides that: 1. States Parties undertake to submit to the Committee, through the Secretary-General of the United Nations, reports on the measures they have adopted which give effect to the rights recognized herein and on the progress made on the enjoyment of those rights: (a) Within two years of the entry into force of the Convention for the State Party concerned, (b) Thereafter every five years. 2. Reports made under the present article shall indicate factors and difficulties, if any, affecting the degree of fulfilment of the obligations under the present Convention. Reports shall also contain sufficient information to provide the Committee with a comprehensive understanding of the implementation of the Convention in the country concerned. 3. A State Party which has submitted a comprehensive initial report to the Committee need not in its subsequent reports submitted in accordance with paragraph 1(b) of the present article repeat basic information previously provided. 4. The Committee may request from States Parties further information relevant to the implementation of the Convention.

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praises this approach of having States submit periodic reports to the Committee on the Rights of the Child for she sees in it a better monitoring mechanism which would ensure that States respect their obligations vis-à-vis this Convention, thereby effectively protecting the rights of the child. She submits that: “[t]he [Convention on the Rights of the Child] requires Parties to submit periodic reports to a treaty body, the Committee on the Rights of the Child, compliance with this aspect of humanitarian law can be monitored in a more public forum than is permitted under the mandate of the International Committee of the Red Cross. This could be significant, even if a State is party to both the Geneva Protocols and the Convention on the Rights of the Child. […], [t]he Committee’s monitoring work may help bring public pressure to bear on States that continue to contravene international standards which they have otherwise endorsed numerous times.”838

However, the 1989 Convention on the Rights of the Child has also been criticized for failing to increase the age limit for the recruitment of children from 15 to 18 years.839 It appears that this failure was not an oversight but a deliberate act. During the negotiations for this convention, the United States of America (USA) and the then Union of Soviet Socialist Republics (USSR) clearly made it known that they did not intend to adhere to this convention and were rather in support of having another draft which reflected Article 77(2) of AP I. Faced with this hostile approach by both states towards a draft containing 18 years as the minimum age for recruitment into armed forces, the working group in charge of drafting this convention, sought a compromise. It recoiled from having the draft Convention on the rights of the child set the minimum age for the recruitment of children into the armed forces at 18 and accepted to set the age limit at 15.840 This is regrettable since it thus limited its contribution to existing international humanitarian law.841 The African Charter on the Rights and Welfare of the Child also prohibits the recruitment of children into armed forces and their direct participation in hostilities.842 This is the only regional instrument that expressly prohibits the recruitment 5. The Committee shall submit to the General Assembly, through the Economic and Social Council, every two years, reports on its activities. 6. States Parties shall make their reports widely available to the public in their own countries. 838 Cf. Ilene Cohn, The Convention on the Rights of the Child: What it means for Children in War, supra note 836, p. 104. 839 Magali Maystre, Les Enfants Soldats en Droit International, Perspectives Internationales, supra note 807, p. 53. 840 Cf. Mathew Happold, The Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, in: H. Fischer / Avril McDonald (eds.), 3 YIHL, T.M.C. Asser Press, The Hague, 2000, pp. 228 – 229. 841 For a similar opinion regarding the limitation of the 1989 Convention on the Rights of the Child, see Astrid J.-M. Delissen, Legal Protection of Child Combatant after the Protocols: Reaffirmation, Development or a Step Backwards, in: Astrid J.-M. Delissen / Gerard J. Tanja (eds.), Humanitarian Law of Armed Conflict – Challenges Ahead, Essays in Honour of Frits Kalshoven, Martinus Nijhoff Publishers, Dordrecht / Boston, 1991, p. 164.

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and use of children under 18 in international and non-international armed conflicts. It defines a child as “every human being below the age of 18 years”.843 Article 22 of the African Charter on the Rights and Welfare of the Child, which deals with armed conflicts provides that: “[1]. States Parties to this Charter shall undertake to respect and ensure respect for rules of international humanitarian law applicable in armed conflicts which affect the child. 2. States Parties to the present Charter shall take all necessary measures to ensure that no child shall take a direct part in hostilities and refrain in particular, from recruiting any child. 3. States Parties to the present Charter shall, in accordance with their obligations under international humanitarian law, protect the civilian population in armed conflicts and shall take all feasible measures to ensure the protection and care of children who are affected by armed conflicts. Such rules shall also apply to children in situations of internal armed conflicts, tension and strife.”844

The African Charter on the Rights and Welfare of the Child is thus applicable to both international and non-international armed conflicts albeit the fact that its wording addresses itself only to States. The fact that it is applicable to international and non-international armed conflicts, as well as tensions and strife renders it one of the legal instruments that protect children the most. The African Charter on the Rights and Welfare of the Child is innovative in that it prohibits the recruitment of children in general without making the distinction between conscription and enlistment.845 Further, the United Nation’s Optional Protocol on the Convention on the Rights of the Child (“Optional Protocol”) prohibits compulsory recruitment of children under the age of 18 and encourages States to raise the minimum age for the recruitment of persons into their armed forces to 18.846 This Optional Protocol was drafted 842 African Charter on the Rights and Welfare of the Child, OAU Doc.CAB / LEG / 24.9 / 49 (1990). 45 Countries are parties to the Charter including Sierra Leone. See http: //www.africaunion.org/root/au/Documents/Treaties/treaties.htm. 843 Ibid., Article 2. 844 Ibid., Article 22. 845 Cf. Magali Maystre, Les Enfants Soldats en Droit International, Perspectives Internationales, supra note 807, p. 64. 846 Cf. Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, 25 May 2000, U.N. Doc. A / RES / 54 / 263, available at http: // www2.ohchr.org / english / law / crc-conflict.htm. The Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict states in its relevant parts: “Article 1) States Parties shall take all feasible measures to ensure that members of their armed forces who have not attained the age of 18 years do not take a direct in hostilities; Article 2) States Parties shall ensure that persons who have not attained the age of 18 years are not compulsory recruited into their armed forces; Article 4[1] Armed groups that are distinct from the armed forces of a State should not, under any circumstances, recruit or use in hostilities persons under the age of 18 years;

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in order to raise the minimum age for recruitment of persons into armed forces from 15 to 18 years and thereby make up for the major short coming of the 1989 Convention on the Rights of the Child. Article 1 of the Optional Protocol provides that: “States Parties shall take all feasible measures to ensure that members of their armed forces who have not attained the age of 18 years do not take a direct part in hostilities”.847 Likewise, the UN Security Council has through its acts shown that the international community does regard the recruitment and use of children in hostilities as a prohibited act.848 Therefore, relying on the above mentioned instruments, it could be argued that customary international law prohibits the recruitment of children under the age of 15 years as well as their direct participation in hostilities.

4. The Jurisprudence of the Special Court The Appeals Chamber of the Special Court has asserted the same position as the UN Security Council regarding the customary international law nature of the crime of recruiting and using child soldiers. In 2004, it held that: “[p]rior to November 1996, the prohibition on child recruitment had also crystallized as customary international law” and that “States clearly consider themselves to be under a legal obligation not to practice child recruitment”.849 It went on to state that: “[A]lmost all states prohibit (and have done so for a long time) the recruitment of children under the age of 15. Since 185 States, including Sierra Leone, were parties to the Geneva Article 4[2] States Parties shall take all feasible measures to prevent such recruitment and use, including adoption of legal measures necessary to prohibit and criminalize such practices; Article 4[3] The application of the present article under this Protocol shall not affect the legal status of any party to an armed conflict.” 847 Cf. Ibid., See Magali Maystre, Enfants Soldats en Droit International, Perspectives Internationales, supra note 807, pp. 55 et seq. For more on the negotiation history, see Mathew Happold, The Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, supra note 840, pp. 229 et seq. 848 Cf. UN Security Council Resolution 1261, Doc. S / RES / 1261, 30 August 1999; UN Security Council Resolution 1314, Doc. S / RES / 1314, 11 August 2000; UN Security Council Resolution 1379, Doc. S / RES / 1379, 20 November 2001; UN Security Council Resolution 1539, Doc. S / RES / 1539, 22 April 2004; and UN Security Council Resolution 1612, Doc. S / RES / 1612, 26 July 2005. 849 SCSL, The Prosecutor v. Samuel Hinga Norman, Case No. SCSL-2004-14-AR729E, Decision on Preliminary Motion Based on Lack of Jurisdiction (Child Recruitment), 31 May 2004, paras. 17, 52 – 53. Pursuant to Rule 72(E) of the Special Court’s RPE. The CDF and AFRC Appeal Judgments confirm the finding that the conscription, enlistment and use of children under the age of 15 to participate in hostilities “constituted a crime under customary international law which entailed individual criminal responsibility prior to the time frame of the Indictment” (Fofana and Kondewa Appeal Judgment, para. 139; Brima, Kamara, Kanu Appeals Judgment, para. 295).

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Conventions prior to 1996, it follows that the provisions of those conventions were widely recognized as customary international law.”850

The Special Court’s Appeals Chamber further found that the “discussion during the preparation of the Rome Statute focused on the codification and effective implementation of the existing customary norm rather than the formation of a new one”.851 Nevertheless, some question the correctness of this position. The UN SecretaryGeneral in his report on the establishment of the Special Court for Sierra Leone expressed his reservations as to whether Article 8(2)(b)(xxvi) ICC Statute – the same wording of Article 4(c) of the SCSL Statute criminalizing the conscripting or enlisting of children under the age of 15 years into armed forces or groups or using them to participate actively in hostilities – reflects customary international law.852 The report stated that: “[O]wing to the doubtful customary nature of the ICC Statutory crime which criminalizes the conscription or enlistment of children under the age of 15, whether forced or ‘voluntary’, the crime which is included in article 4 (c) of the Statute of the Special Court is not the equivalent of the ICC provision. While the definition of the crime as ‘conscripting’ or ‘enlisting’ connotes an administrative act of putting one’s name on a list and formal entry into the armed forces, the elements of the crime under the proposed Statute of the Special Court are: (a) abduction, which in the case of the children of Sierra Leone was the original crime and is itself a crime under Common Article 3 of the Geneva Conventions; (b) forced recruitment in the most general sense – administrative formalities, obviously, notwithstanding; and (c) transformation of the child into, and its use as, among other degrading uses, a child-combatant.”853

However, as a result of a request from the Security Council, draft Article 4(c) SCSL Statute was to be modified in order to “conform it to the statement of the law existing in 1996 and as currently accepted by the international community”.854 Justice Geoffrey Robertson on his part in his dissenting opinion shared the view that the Secretary-General’s draft Article 4(c) SCSL Statute would have reflected a war crime by 1996, as it “amounted to a most serious breach of Common Article 3”.855 He interestingly commented that:

850 SCSL, The Prosecutor v. Samuel Hinga Norman, Case No. SCSL-2004-14-AR729E, Decision on Preliminary Motion Based on Lack of Jurisdiction (Child Recruitment), 31 May 2004, para. 18. 851 SCSL, The Prosecutor v. Samuel Hinga Norman, Case No. SCSL-2004-14-AR729E, Decision on Preliminary Motion Based on Lack of Jurisdiction (Child Recruitment), 31 May 2004, para. 33. 852 Report of the Secretary-General, 4 October 2000, supra note 15. 853 Report of the Secretary-General, 4 October 2000, supra note 15, para. 18. 854 Letter from the President of the Security Council addressed to the Secretary-General, UN Doc. S / 2000 / 1234 (22 December 2000), p. 2.

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“[I]t might strike some as odd that the state of international law in 1996 in respect to criminalization of child enlistment was doubtful to the UN Secretary-General in October 2000 but very clear to the President of the Security Council only two months later. If it was not clear to the Secretary-General and his legal advisers that international law by 1996 criminalized the enlistment of child soldiers, could it really have been any clearer to Chief Hinga Norman or any other defendant at that time, embattled in Sierra Leone?”856

However, the fact that the UN Secretary-General expressed, in October 2000, his doubts as to the criminalization of the act of enlisting child soldiers should not ipso facto mean that the accused should not have been aware of the criminalization of the act. Indeed the majority on the Chamber bench referred and relied inter alia on the criminalization of the offence in Article 8 of the ICC Statute. Furthermore, the Special Court’s Appeals Chamber [rightly] relied on the Tadic jurisprudence857 which stated that the clear and unequivocal recognition of the rules of warfare in international and State practice indicate an intention to criminalize the prohibition. The Special Court’s Appeals Chamber underlined that one of the fundamental guarantees in AP II was the prohibition of the recruitment and use of children to participate in hostilities. It stated that: “[T]he prohibition of child recruitment constitutes a fundamental guarantee and although it is not enumerated in the ICTR and ICTY Statutes, it shares the same character and the same gravity of the violations that are explicitly listed in those Statutes. The fact that the ICTY and the ICTR have prosecuted violations of Additional Protocol II provides further evidence of the criminality of child recruitment before 1996.”858

Similar to the Special Court’s jurisprudence on the crime of attacking installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission, its jurisprudence in relation to the crime of recruiting and using child soldiers is groundbreaking. It clearly pointed out the fact that non-State actors are bound by customary international law. The Special Court’s Appeals Chamber held that: “[i]t is well-settled that all parties to an armed conflict, whether states or non-state actors, are bound by international humanitarian law, even though only states may become parties to international treaties. Customary international law represents the common standard of behavior within the international community, thus even armed groups hostile to a particular government have to abide by these laws.”859

Although the jurisprudence of the Special Court obviously does not constitute State practice, it – as well as other decisions of international courts – amounts to a 855 SCSL, The Prosecutor v. Samuel Hinga Norman, Case No. SCSL-2004-14-AR729E, Decision on Preliminary Motion Based on Lack of Jurisdiction (Child Recruitment), 31 May 2004, Dissenting Opinion of Justice Robertson, para. 4. 856 Ibid., para. 6. 857 ICTY, Tadić Appeal Decision on Jurisdiction, para. 70. 858 SCSL, The Prosecutor v. Samuel Hinga Norman, Decision on Preliminary Motion Based on Lack of Jurisdiction (Child Recruitment), 31 May 2004, para. 39. 859 Ibid., para. 22.

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subsidiary source of international law.860 Further, the analyses above also clearly establish States behavior towards the recruitment and use of child soldiers albeit the inconsistency vis-à-vis the age limit. Be that as it may, this State practice is applicable both in international and non-international armed conflicts and establishes a common understanding that 15 years of age is the absolute minimum age that the international community is willing to accept with regard to the recruitment and use of child soldiers. It is as well applicable to both State and non-State actors in a conflict. It can be concluded that the jurisprudence of the Special Court on this issue has contributed – via its persuasive nature – to the development of international humanitarian law. Having analyzed the customary nature of the crime of conscription, enlistment and use of child soldiers under the age of 15 in hostilities as at November 1996, it is worth looking at what material elements constitute this crime. Article 4 SCSL Statute provides in its relevant part that: “[T]he Special Court shall have the power to prosecute persons who committed the following serious violations of international humanitarian law: […]; (c) Conscripting or enlisting children under the age of 15 years into armed forces or groups or using them to participate actively in hostilities.”861

As stated above, this provision reflects Article 8(c)(vii) of the ICC Statute and replaced an earlier draft of the SCSL Statute which referred to “abduction and forced recruitment of children under the age of fifteen”.862 In addition to the general requirements which must be proven in order to establish the commission of an ‘other serious violation of international humanitarian law’, i.e. (a) the existence of an armed conflict at the time of the alleged offence; and (b) the establishment of a nexus between the alleged offence and the armed conflict,863 the Trial Chamber in the Issa Sesay et al. case held that the following specific elements are required in order to establish the crime of using children under the age of 15 years to participate actively in hostilities: “(i) One or more persons were used by the Accused to actively participate in hostilities; (ii) Such person or persons were under the age of 15 years; (iii) The Accused knew or had reason to know that such person or persons were under the age of 15 years; and (iv) The Accused intended to use the said persons to actively participate in hostilities.”864

ICJ Statute, Article 38(1)(d). SCSL Statute, Article 4(c). 862 Cf. Simon Meisenberg, Customary International Law and the Recruitment of Child Soldiers, BOFAXE, No. 286E, 2004. 863 SCSL, Fofana and Kondewa Trial Judgment, para. 138; SCSL, Sesay, Kallon, Gbao Trial Judgment, para. 107. 864 SCSL, Sesay, Kallon, Gbao Trial Judgment, para. 193 referring to SCSL, Fofana and Kondewa Trial Judgment, para. 196. 860 861

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The Special Court however failed to provide an in-depth analysis of these elements. Having said that, the author will analyze the following material elements, which incorporate the specific elements listed by the Special Court jurisprudence: [a) aa)] conscripting or enlisting children; [a) bb)] the existence of armed forces or armed group; and [a) cc)] active participation in hostilities.865 The analysis is divided into two main parts, namely, the material elements [a)] and the mental elements [b)].

a) Material Elements In analyzing the aforementioned material elements, an attempt would be made to provide a definition to the key words found in Article 4(c) SCSL Statute and of relevance to this discussion. In the CDF case, the Appeals Chamber noted that “[t]he actus reus requires that the accused recruited children by way of conscripting or enlisting them or that the accused used children to participate actively in hostilities”.866 Similarly, the AFRC Trial Chamber found that “the actus reus of the [recruitment of child soldiers] can be satisfied by ‘conscripting’ or ‘enlisting’ children under the age of 15, or by ‘using’ them to participate actively in hostilities”.867 Therefore, this is one crime which can be carried out in three different ways. It should be noted however that a child may be conscripted or enlisted without subsequently being used in the armed conflict. Likewise, a child maybe used in an armed conflict without having been previously conscripted or enlisted.868 aa) Conscription and Enlistment Black’s Law Dictionary defines conscription as “compulsory enlistment of persons into military service”869 The RUF Trial Chamber adopted this definition but however also pointed out that “conscription also encompasses what is commonly known as “forced recruitment”, wherein individuals are recruited through illegal means, for instance through the use of force or following abduction”.870 With regard

865 For an analysis of the elements of child recruitment under the ICC Statute see Mathew Happold, Child Recruitment as a Crime under the Rome Statute of the International Criminal Court, in: José Doria / Hans-Peter Gasser / Cherif Bassiouni (eds.), The Legal Regime of the International Criminal Court, Essays in Honor of Professor Igor Blishchenko, Martinus Nijhoff Publishers, Leiden, Boston 2009, pp. 579 – 607. 866 SCSL, Fofana and Kondewa Appeal Judgment, para. 139. 867 SCSL, Prosecutor v. Brima, Kamara and Kanu, Case No. SCSL-04-16-T, Judgment, 20 June 2007, para. 733. 868 Cf. Mathew Happold, Child Recruitment as a Crime under the Rome Statute of the International Criminal Court, in José Doria / Hans-Peter Gasser / Cherif Bassiouni (eds.), The Legal Regime of the International Criminal Court, supra note 865, p. 579. 869 Bryan A. Garner, Black’s Law Dictionary, 8th edn., West Group, 2004.

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to enlistment, which is part of the definition of conscription, the RUF Trial Chamber defined it as “accepting and enrolling individuals when they volunteer to join an armed force or group.”871 Therefore, the difference between conscripting and enlisting is that while the latter requires that the person voluntarily consented to be part of the armed force or group, the former requires the lack of consent of the person being enlisted into the military service. The ICC jurisprudence adopts this same distinction between conscription and enlistment872 The Lubanga Confirmation of Charges Decision further pointed out that “the crime of enlisting and conscripting is an offence of a continuing nature – referred to by some courts as a ‘continuous crime’ and by others as a ‘permanent crime’” and “that it continues to be committed as long as the children remain in the armed groups or forces and consequently ceases when these children leave the groups or reach age fifteen”.873 Further, the crime of enlistment requires the existence of a ‘nexus between the act of the accused and the child joining the armed force or group’.874 In this light, Sandesh Sivakumaran argues that the use of a child to take an active part in hostilities does not automatically constitute enlistment of that child.875 While one could deduce from the aforementioned definitions that there is thus the need to prove that there was a formal process during which the child(ren) were enlisted – voluntarily or not – into the armed forces, the Special Court’s Appeals Chamber, rightfully clarified this issue by emphasizing that “[e]nlistment cannot be narrowly defined as a formal process” in those cases where the armed group is not a conventional military organization and must instead be understood in the broad sense to include “any conduct accepting the child as a part of the militia. Such conduct would include making him participate in military operations.”876 Therefore, according to the jurisprudence of the Special Court’s Appeal Chamber, one should not interpret too narrowly the crime of enlistment as requiring a formal process especially with regard to non-conventional military organizations. Hence, contrary to Sivakumaran’s position, the author considers that the use of a child to take part in hostilities does in

870 SCSL, Sesay, Kallon, Gbao Trial Judgment, para. 186 referring to United States Supreme Court jurisprudence wherein the terms “forced recruitment” and “conscription” were used interchangeably; See United States Supreme Court, Immigration and Naturalization Service v. Jairo Jonathan Elias-Zacarias (1992), 502 U.S. 478, p. 480. 871 SCSL, Sesay, Kallon, Gbao Trial Judgment, para. 185; Fofana and Kondewa Appeal Judgment, para. 140, quoting Brima, Kamara, Kanu Appeals Judgment, para. 735. 872 ICC, The Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01 / 04-01 / 06, Decision on the Confirmation of Charges, 29 January 2007, para. 247. See also ICC, The Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01 / 04-01 / 06, Judgment pursuant to Article 74 of the Statute, 14 March 2012, paras. 607 – 609. 873 Ibid., para. 248. 874 SCSL, Fofana and Kondewa Appeal Judgment, para. 141. 875 Cf. Sandesh Sivakumaran, War Crimes Before the Special Court for Sierra Leone, 8 JICJ 4, 2010, p. 1014. 876 SCSL, Fofana and Kondewa Appeals Judgment, para. 144.

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fact constitute the enlistment of that child. This is the same position held by Justice Winter in her dissenting opinion: “[I]n the situation where there are no formal or informal processes for enlisting individuals, especially children, the ‘use’ of a child to participate actively [in] hostilities may amount to enlistment. However, where the evidence demonstrates the existence of a process that contributes to the enrolment and acceptance of a child into an armed force or group, logic dictates that ‘use’ of a child cannot constitute enlistment.”877

It could also be viewed as evidence of the conscription of a child albeit with limited compelling value. In the same light, the purpose for which [the] child(ren) was recruited is immaterial. Alison Smith avers that the very purpose for which this prohibition was adopted, was to prevent children from becoming combatants and thereby targets of the enemy.878 Further, it should be noted that while the number of victims is one of the criteria that have to be taken into consideration in establishing that certain crimes took place such as extermination,879 in the case of the recruitment of child soldiers, the number of children under the age of 15 enlisted by the accused is irrelevant in establishing the guilt of the accused.880 It is also irrelevant whether or not the child(ren) consented to his or her enlistment in the armed forces or group.881 This is so because, in accordance with the jurisprudence of the Special Court taking into account the context of the conflict in Sierra Leone were human rights abuses were rife, “the distinction between voluntary enlistment and conscription is somewhat contrived […] [and] of questionable merit.”882 The Appeals Chamber in the Moinina Fofana et al case, relied upon the ICRC Commentary to Article 43 (c) of the AP II which states that: “The principle of non-recruitment also prohibits accepting voluntary enlistment. Not only can a child not be recruited, or enlist himself, but furthermore he will not be ‘allowed to take part in hostilities’, i.e. to participate in military operations such 877 SCSL, Fofana and Kondewa Appeals Judgment, Partially Dissenting Opinion of Justice Winter, para. 13. 878 Cf. Alison Smith, Child Recruitment and the Special Court for Sierra Leone, 2 JICJ 4, 2004, pp. 1141 – 1153. 879 The Appeals Chamber in ICTR, The Prosecutor v. Seromba, Case No. ICTR-2001-66-A, Appeal Judgment, 12 March 2008, para. 189 held that “extermination as crime against humanity under Article 3(b) of the ICTR Statute is the act of killing on a large scale. The Appeals Chamber stresses that in the jurisprudence of both ad hoc Tribunals, the necessary actus reus underlying the crime of extermination consists of any act, omission, or combination thereof which contributes directly or indirectly to the killing of a large number of individuals.” 880 SCSL, Fofana and Kondewa Appeals Judgment, para. 125. 881 SCSL, Fofana and Kondewa Appeal Judgment, para. 140: “where a child under the age of 15 years is allowed to voluntarily join an armed force or group, his or her consent is not a valid defence.” 882 SCSL, Fofana and Kondewa Appeals Judgment, para. 140; Sesay, Kallon, Gbao Trial Judgment, para. 187.

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as gathering information, transmitting orders, transporting ammunition and foodstuffs, or acts of sabotage”.883 Therefore, in order to fulfill this requirement, it must be established that the child was under the age of 15 and that (s)he was conscripted or enlisted into a national armed force, armed force or armed group. bb) (National Armed Forces), Armed Forces and Armed Groups The jurisprudence of the Special Court recognizes that ‘armed forces or groups’ may either be controlled by a State or by a non-State actor.884 The Special Court adopted the definition of armed groups as stated in the Tadic Appeals Judgment: “[O]ne should distinguish the situation of individuals acting on behalf of a State without specific instructions, from that of individuals making up an organized and hierarchically structured group, such as a military unit or, in case of war or civil strife, armed bands of irregulars or rebels. Plainly, an organized group differs from an individual in that the former normally has a structure, a chain of command and a set of rules as well as the outward symbols of authority. Normally a member of the group does not act on his own behalf but conforms to the standards prevailing in the group and is subject to the authority of the head of the group.”885

The significance of the Appeals Chamber jurisprudence – recognizing the prohibition of the recruitment of child soldiers as being a customary international law norm well before 1996 – is that it significantly extended this obligation to not only apply to national armed forces, but also to include non-state actors. The Appeals Chamber stated that: “Customary international law represents the common standard of behavior within the international community, thus even armed groups hostile to a particular government have to abide by these laws. It has also been pointed out that non-state entities are bound by necessity by the rules embodied in international humanitarian law instruments, that they are ‘responsible for the conduct of their members’ and may be ‘held so responsible by opposing parties or by the outside world’. Therefore all parties to the conflict in Sierra Leone were bound by the prohibition of child recruitment that exists in international humanitarian law.”886

It should be noted that while the SCSL Statute refers only to armed forces or groups without any differences made as to the nature of the conflict, the ICC Statute differentiates between ‘national armed forces’ and ‘armed forces or groups’.887 The 883

ICRC Commentary on Protocol II of 1977 to the Geneva Conventions of 1949, para.

4557. SCSL, Sesay, Kallon, Gbao Trial Judgment, para. 189. Ibid., para. 189, citing Tadić Appeal Judgment, para. 120. 886 SCSL, The Prosecutor v. Samuel Hinga Norman, Decision on Preliminary Motion based on Lack of Jurisdiction (Child recruitment), Case No. SCSL-2004-14-AR72 (E), 31 May 2004, para. 22. 884 885

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wording of the relevant articles points out that while the Special Court does not – in relation to the act of conscripting and enlisting children under the age of 15 years – distinguish between the nature of the conflict, the ICC does establish such a distinction. In order to establish the war crime of constripting or enlisting children under the age of 15 years into an armed group within the context of an international armed conflict, it must be established that the organ in question was a ‘national armed force’. With regards to a non-international armed conflict, it would be required to establish that it was an armed force or group. However, although the wordings of the ICC Statute differ to a certain extent from those of the SCSL Statute, the jurisprudence of both institutions is consistent. The Lubanga Confirmation of Charges Decision held that: “[A]rticle 43 of [AP I] defines the armed forces of a Party to a conflict as consisting of all organized armed forces, groups and units which are under a command responsible to that Party for the conduct of its subordinates, even if that Party is represented by a government or an authority not recognized by an adverse Party. Such armed forces must be subject to an internal disciplinary system which, inter alia, enforces compliance with the rules of international law applicable in armed conflict.”888

The pre-Trial Chamber in the Lubanga case pointed out that “[i]t would be absurd that […] the perpetrator of [the crime of enlisting or conscripting children under the age of fifteen years] could escape prosecution simply because his or her acts were committed in the context of an international armed conflict”.889 Hence it is clear that armed groups could be governmental and non-governmental regardless of whether the conflict was international or non-international. The equal treatment of governmental and non-governmental groups has as effect that no one would / could escape the hands of justice merely because (s)he belonged to one category and not the other. The Special Court’s jurisprudence represents an important contribution to international criminal law and can be relied upon in criminal proceedings that involve conflicts that occurred prior to the entry into force of the ICC Statute.890.

cc) Active Participation in Hostilities Prior to looking at what amounts to ‘active participation’, it is imperative to first briefly understanding the term ‘hostilities’. Hostility can be defined as hostile action

887

See Article 4(c) SCSL Statute and Article 8(b)(xxvi) and 8(e)(vii) ICC Statute respec-

tively. 888 ICC, The Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01 / 04-01 / 06, Decision on the Confirmation of Charges, 29 January 2007, para. 271. 889 Ibid., para. 284. 890 Cf. Susan C. Breau, The Contribution of the Special Court to the Development of International Humanitarian Law, 34 Commonwealth Law Bulletin 4, 2008, p. 820.

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exercised by a military enemy.891 International humanitarian law recognizes hostilities as being acts which by their nature or purpose are intended to cause damage or actual harm to the adversary party.892 It can be concluded therefore that hostilities imply violence and conflict, thus not necessary the right milieu for children. Although there are several international instruments that prohibit the recruitment and use of children in conflicts, their scope of protection somewhat differ. The African Charter on the Rights and Welfare of the Child covers a wider scope for its provisions are applicable to all children – albeit linked to their direct participation in hostilities.893 AP I has a narrower scope of protection for it prohibits children under the age of 15 from taking “a direct part in hostilities”, as against AP II which covers a wider scope for it prohibits children under the age of 15 from taking ‘any’ part in hostilities. The ICRC holds the position that direct participation in hostilities implies a direct causal relationship between the activity engaged in and the harm done to the enemy at the time and the place where the activity takes place.”894 AP II prohibits any participation be it direct or indirect. This means that having children carry out tasks such as communication of information, courier services or household activities in the home of an officer involved in the conflict would be prohibited. The dilemma here is however how remote the activities of the child(ren) can be in order to be seen as taking [in]direct part in the hostilities. The ICTY Appeals Chamber in Prosecutor v. Pavle Strugar895 stated that: “[E]xamples of indirect participation in hostilities include: participating in activities in support of the war or military effort of one of the parties to the conflict, selling goods to one of the parties to the conflict, expressing sympathy for the cause of one of the parties to the conflict, failing to act to prevent an incursion by one of the parties to the conflict, accompanying and supplying food to one of the parties to the conflict, gathering and transmitting military information, transporting arms and munitions, and providing supplies, and providing specialist advice regarding the selection of military personnel, their training or the correct maintenance of the weapons.”896

Therefore in applying the Strugar jurisprudence, there is little doubt that children who engaged in such activities were taking indirect part in hostilities and therefore 891 Cf. Judy Pearsall (ed.), The Concise Oxford Dictionary, 10th edn., OUP, USA, 1999, p. 687. 892 ICRC Commentary to the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, p. 618; SCSL, Sesay, Kallon, Gbao Trial Judgment, para. 1720; ICTR, The Prosecutor v. Rutaganda, Case No. ICTR-96-3-T, Judgment, 6 December 1999, para. 100. 893 African Charter on the Rights and Welfare of the Child, OAU Doc. CAB / LEG / 24.9 / 49 (1990), entered into force Nov. 29, 1999, para. 22. 894 ICRC Commentary to the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, p. 515. 895 ICTY, The Prosecutor v. Pavle Strugar, Case No. IT-01-42-A, Judgment, 17 July 2006. 896 Ibid., para. 177.

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one of the material elements of conscription of child soldiers would be established. The Special Court’s Appeals Chamber acknowledged that there was little jurisprudence on how direct an act must be to constitute enlistment as per the SCSL Statute. It however held that in order to establish the crime of enlistment of children, there must be a nexus between the act of the accused and the child joining the armed force or group.897 The contribution of the Special Court on this issue can be seen by the fact that it provides us with some useful indicia as to what amounts to active participation in hostilities. The jurisprudence of the Special Court holds that active participation includes both ‘participation in combat and active participation in military activities linked to combat’.898 The RUF Trial Chamber in analyzing what amounted to an active participation in hostility concluded that hostilities encompass not only combat operations but also military activities linked to combat. Such activities are the use of children at military checkpoints,899 in armed patrols,900 in combat,901 to guard military objectives,902 as bodyguards to commanders,903 as human shields904 or as spies.905 It is worth noting that the RUF Trial Chamber fully endorsed the Report of the Preparatory Committee on the Establishment of an International Criminal Court, which states inter alia: “[T]he words ‘using’ and ‘participate [actively]’ have been adopted in order to cover both direct participation in combat and also active participation in military activities linked to combat such as scouting, spying, sabotage and use of children as decoys, couriers or at military checkpoints. It would not cover activities clearly unrelated to the hostilities such as food deliveries to an airbase or the use of domestic staff in an officer’s accommodation. However, use of children in a direct support function such as acting as bearers to take supplies to the front line, or activities at the front line itself, would be included within the terminology.”906

SCSL, Fofana and Kondewa Appeal Judgment, para. 141. SCSL, Brima, Kamara, Kanu Trial Judgment, paras. 736 – 737; Fofana and Kondewa Trial Judgment, para. 193; Sesay, Kallon, Gbao Trial Judgment, paras. 188, 1720. 899 SCSL, Brima, Kamara, Kanu Trial Judgment, para. 737. See also Fofana and Kondewa Appeals Judgment, Trial Judgment, Separate and Partially Dissenting Opinion on Count 8 of Hon. Justice Benjamin Itoe, Presiding Judge, para. 10. 900 SCSL, Prosecutor v.Sessay, Kallon and Gbao, Trial Judgment, paras. 1710 – 1743. 901 Ibid.; Fofana and Kondewa Trial Judgment, Separate and Partially Dissenting Opinion on Count 8 of Hon. Justice Benjamin Itoe, Presiding Judge, para. 10. 902 SCSL, Sesay, Kallon, Gbao Trial Judgment, paras. 1710 – 1743. See also ICC, The Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01 / 04-01 / 06, Pre-Trial Chamber, Decision on Confirmation of Charges, 29 January 2007, paras. 261 – 263. 903 Ibid. 904 SCSL, Brima, Kamara, Kanu Trial Judgment, paras. 737, 1266. 905 SCSL, Sesay, Kallon, Gbao Trial Judgment, paras. 1710 – 1743. See also ICC, The Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01 / 04-01 / 06, Pre-Trial Chamber, Decision on Confirmation of Charges, 29 January 2007, paras. 261 – 263. 906 SCSL, Sesay, Kallon, Gbao Trial Judgment, para. 188; Fofana and Kondewa Trial Judgment, para. 193. See also Report of the Preparatory Committee on the Establishment of an In897 898

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Although the RUF Trial Chamber was apparently aware of the fact that a too broad interpretation of hostilities could result in the children associated with armed groups losing their protected status as persons hors de combat under the law of armed conflict, it still broadened its interpretation.907 It found that “an overly expansive definition of active participation in hostilities would be inappropriate as its consequence would be that children associated with armed groups lose their protected status as persons hors de combat under the law of armed conflict”.908 In as much this rather broad interpretation of ‘active participation in hostilities’ reflects a desire on the part of the Special Court to ensure that children are protected from any engagement in violent functions of the armed group that directly support its conflict against the adversary, its result is that children lose their protected status and become legitimate targets for the opposing armed group.909 Thus it is worth weighing the strived protection from any form of engagement in violent functions in armed conflict as against the loss of the protected status as persons hors de combat under the law of armed conflict. This is, in the author’s view, too high a price to pay and the RUF Trial Chamber ought not to have gone so far in its desire to protect the children from any form of violent engagement in the armed conflict. Further, the Cape Town Principles define a child soldier as; “[a]ny person under 18 years of age who is part of any kind of regular or irregular armed force or armed group in any capacity, including but not limited to cooks, porters, messengers and anyone accompanying such groups, other than family members. The Definition includes girls recruited for sexual purposes and for forced marriage. It does not therefore refer to a child who is carrying or has carried arms.”910

While this is reflective of the fact that the jurisprudence of the Special Court was the basis on which this soft law was established, the definition particularly the phrase “[t]he Definition includes girls recruited for sexual purposes and for forced marriage”, strengthens my concerns about a too broad interpretation of ‘active participation in hostilities’. The Report of the Preparatory Committee on the Establishment of an International Criminal Court, which was considered by the Special Court provides that active participation “would not cover activities clearly unrelated to the

ternational Criminal Court, A / CONF.183 / 2 / Add.1, 14 April 1998, p. 21, footnote 12. This is also reflected in the French text of the ICC Statute (Article 8[2][b][xxvi] and [e][vii]), which reads in its relevant part that ‘participer activement à des hostilités’. 907 SCSL, Sesay, Kallon, Gbao Trial Judgment, para.1723. 908 Ibid. 909 Cf. Alexander Breitegger, Aktuelle Beiträge der Internationalen Strafjustiz zur Entwicklung des humanitären Völkerrechts, in 11 ZIS, 2010, p. 722, available at: http: //www.zisonline.com/?sektion=2&language=ger. 910 Cf. Cape Town Principles and Best Practices, adopted at the Symposium on the Prevention of Recruitment of Children into the Armed Forces and on Demobilization, and Social Reintergration of Child Soldiers in Africa, Cape Town, 30 April 1997, p. 11 [emphasis added].

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hostilities”. This begs the question whether the fact that the victims of forced marriages were abducted during the hostilities reasonably justifies the viewing of these women and girls as actively participating in the conflict? The problematic with this rather broad interpretation, as mentioned above, is that these individuals, in casu the women and girls who were victims of forced marriages, become legitimate targets in the hostilities. This Special Court’s broad interpretation of active participation follows the ICC jurisprudence. In the Prosecutor v. Lubanga case, the Chamber held that the use of children at military checkpoints amounted to active participation in combat activities.911 Likewise, in the Prosecutor v. Katanga and Ngudjolo Chui case, the same approach was taken without any further analysis.912 It is therefore apparent that the Special Court jurisprudence in relation to the crime of recruiting child soldiers is a substantial contribution to the development of international humanitarian law. Particularly because it is the first judgment of an international criminal court that applies the elements of the crimel. However, the subsequent application of this jurisprudence by another international criminal institution, should strive at setting some limits to this broad interpretation. The jurisprudence would have been of even greater importance if the Special Court had analyzed the material elements of this crime in detail. Further, the Special Court’s finding that this crime constituted customary international law is a material contribution to the development of international humanitarian law. This is so because, although decisions issued by international tribunals do not constitute state practice, they are of persuasive value and have an influence on subsequent State practice. These in turn assist in the establishment that a rule amounts to customary international law. b) Mental Elements – The Knew or should have Known Test In order to establish a crime both the material elements and the mental elements need to be proven. The Special Court’s Appeals Chamber in the CDF case held that in order to establish the crime of enlistment of children, there must be the knowledge on the part of the accused that the child being enlisted is under the age of 15 and that the child would be trained for combat.913 This finding has been in the author’s view, rightly criticized in the academic field since it creates an extra threshold i.e. the need to establish that the accused had the knowledge that the child may 911 ICC, The Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01 / 04-01 / 06, Decision on the Confirmation of Charges, 29 January 2007, para. 263. See also ICC, The Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01 / 04-01 / 06, Judgment pursuant to Article 74 of the Statute, 14 March 2012, paras. 621 – 625. 912 ICC, The Prosecutor v. v. Katanga and Ngudjolo Chui, Case No. ICC-01 / 04-01 / 07, Decision on the Confirmation of Charges, 30 September 2008, para. 250. 913 SCSL, Fofana and Kondewa Appeal Judgment, para. 141.

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be trained for combat.914 The wording of Article 4(c) is clear and unambiguous (‘[c]onscripting or enlisting children under the age of 15 years into armed forces or armed groups or using them to participate actively in hostilities’).915 As already pointed out above, although this is one crime, it can be committed in three ways i.e. conscription of children under the age of 15; enlistment of children under the age of 15 or use of children to participate actively in hostilities. Thus the ‘active participation’ relates to the last form and not to the first two forms.916 Sivakumaran attempts to explain the possible reasons for this rather questionable approach taken by the Special Court’s Appeal Chamber. He submits that there could be two reasons for this.917 First, this could be due to the fact that the indictments were not well drafted and thus led the Chamber to interpret the article in a particular way. They read: “[A]t all times relevant to this indictment, throughout the Republic of Sierra Leone, AFRC / RUF routinely conscripted, enlisted and / or used boys and girls under the age of 15 to participate in active hostilities”.918 Second, Sivakumaran submits that the Appeals Chamber could have been indirectly influenced by the Dissenting Opinion of Justice Robertson in the Sam Hinga Norman Child Recruitment Decision. This Dissenting Opinion was based on an earlier version of the SCSL Statute, which required the establishment of the accused having a particular purpose in order for the latter to be held responsible for the recruitment of child soldiers.919 These explanations are speculative and cannot be relied upon in order to fully understand the Special Court’s Appeals Chamber jurisprudence in this respect. Be that as it may, considering that either form of commitment, i.e. conscription, enlistment or use of a child under the age of 15 to participate actively in hostilities, suffices for the actus reus element to have been satisfied, it should have sufficed that, with regards to the mens rea, the accused was aware that the child was under the age of 15. The Special Court jurisprudence in this respect is of limited value and it remains to be seen if the Special Court in the Charles Taylor case is able to contribute to the development of international humanitarian law in this respect. In the absence of this, it would be up to the ICC to further develop this field of international humanitarian law.

914 Cf. Sandesh Sivakumaran, War Crimes Before the Special Court for Sierra Leone, supra note 875, p. 1015. (Emphasis added). 915 Cf. Article 4(c) SCSL Statute. 916 Cf. Sandesh Sivakumaran, War Crimes Before the Special Court for Sierra Leone, supra note 875, p. 1016. 917 Ibid. 918 SCSL, The Prosecutor v. Brima, Kamara and Kanu, Case No. SCSL-2004-16-PT, Further Amended Consolidated Indictment, para. 65; The Prosecutor v. Sesay, Kallon and Gbao, Case No. SCSL-2004-15-PT, Corrected Amended Consolidated Indictment, para. 68. (Emphasis added). 919 Cf. Sandesh Sivakumaran, War Crimes Before the Special Court for Sierra Leone, supra note 875, p. 1017.

Chapter 7

Crimes under Sierra Leonean Law At the onset it should be noted that, bearing in mind the fact that the subject of this thesis is to analyse the contribution of the Special Court to the development of international humanitarian law, this chapter, dealing with Sierra Leonean law, was not analysed with great in-depth. Having said that, it is worthy of note that, one of the particularities and at the same time novelties of the Special Court was its subject matter jurisdiction over crimes under Sierra Leonean law. This was clearly stated in Security Council Resolution 1315 as well as the SCSL Statute. Article 5 of the SCSL Statute provides that: “[T]he Special Court shall have the power to prosecute persons who have committed the following crimes under Sierra Leonean law: a) Offences relating to the abuse of girls under the Prevention of Cruelty to Children Act, 1926 (Cap. 31): (i) Abusing a girl under 13 years of age, contrary to section 6; (ii) Abusing a girl between 13 and 14 years of age, contrary to section 7; (iii) Abduction of a girl for immoral purposes, contrary to section 12. b) Offences relating to the wanton destruction of property under the Malicious Damage Act, 1861: (i) Setting fire to dwelling - houses, any person being therein, contrary to section 2; (ii) Setting fire to public buildings, contrary to sections 5 and 6; (iii) Setting fire to other buildings, contrary to section 6.”920

With regard to ‘Offences relating to the abuse of girls under the Prevention of Cruelty to Children Act, 1926 (Cap. 31)’, its provisions protect girls with age ranging from ‘under 13’ (Section 6) to ‘under 16’ (Section 12).921 With regard to ‘Offences relating to the wanton destruction of property under the Malicious Damage Act, 1861’, the jurisdiction of the Special Court does not cover all acts involving the wanton destruction of property. Article 5(b) SCSL Statute limits the jurisdiction of the Special Court to only the setting fire to specific buildings i.e. dwelling houses, public buildings and “other” buildings, which are not explicitly 920 921

Article 5, SCSL Statute. Cf. Lawyers Guide to the Special Court for Sierra Leone, supra note 135, p. 66.

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mentioned elsewhere in the Malicious Damage Act, 1867 such as churches, chapels or other places of divine worship,922 a house (with no person inside), outhouse, manufactory, farm building or similar building,923 and railway stations.924 The incorporation of this offence into the jurisdiction ratione materiae of the Special Court is reflective of the inadequacy of international criminal law to deal with arsonists. The particularity of this crime which involves the burning and destruction of houses and buildings cannot be fully covered by the war crimes of pillaging or destroying or seizing the enemy’s property. In relation to the war crime of destroying or seizing the enemy’s property it is necessary to prove that “(i) The perpetrator destroyed or seized certain property; (ii) Such property was property of a hostile party; (iii) Such property was protected from that destruction or seizure under the international law of armed conflict; (iv) The perpetrator was aware of the factual circumstances that established the status of the property; (v) The destruction or seizure was not justified by military necessity; (vi) The conduct took place in the context of and was associated with an international armed conflict; (vii) The perpetrator was aware of factual circumstances that established the existence of an armed conflict.925 Whereas for the crime of arson, not only is it limited to setting fire to buildings, not all buildings are covered by this provision. Moreover there is no requirement that the building be the ‘property of a hostile party’. Further, the insertion of this offence was reflective of the specificity of the crimes committed in Sierra Leone. As the names of some of the operations indicate, operation ‘burn houses’ was an operation that witnessed a series of arson attacks, that saw the most terrible arson Sierra Leone has since experienced since its existence.926 However, as already noted above, the Office of the Prosecutor decided not to apply Sierra Leonean law and thereby missed this first-of-its-kind opportunity to have a hybrid Tribunal apply both international law and national law. Hence, because of this Prosecution practice these laws have remained in desuetude and one cannot assess the applicability of national laws in the substantive law of international criminal courts. Further, the Special Court by not prosecuting anyone under the provisions of Sierra Leonean criminal law gives the impression that the Lomé amnesty while not applicable to international crimes is applicable to national crimes.927 More so, be922 Cf. Malicious Damage Act (24 & 25 Vict. c.97), 1867, Section 1 (United Kingdom of Great Britain and Ireland). 923 Ibid., Section 3. 924 Ibid., Section 4. See generally Lawyers Guide to the Special Court for Sierra Leone, supra note 135, p. 67. 925 Cf. Art. 8(2)(b)(xiii) ICC Elements of Crimes. 926 Cf. Caroline Hawley, A Country Torn by Conflict, BBC News Online, 12 January 1999. 927 Sierra Leonean Criminal Law derives from the colonial period when it was a colony of Great Britain. See Bankole Thompson, The Criminal Law of Sierra Leone, supra note 125, p. 13.

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cause in determining the applicability of amnesty emphasis is placed on the nature of the crime and not on the nature of the judicial organ applying the law. As already mentioned above, the Lomé Peace Agreement inter alia granted a controversial blanket amnesty to all those involved in the conflict and for any acts they committed.928 However, in order for this Agreement to be part of Sierra Leonean domestic law there needed to be legislation to that effect. Generally, the implementation of international law at the level of States consists of two alternative facets: the monist and the dualist approach. In accordance with the monist approach, ratification suffices for national implementation and does not require any implementing legislation to be incorporated as it is already part of the law of the land as from the time of ratification. Civil law countries are mainly monist while Common law countries are mainly dualist. It is typical of monist countries to have a provision in their constitution stating that international treaties are binding on the state and have constitutional status and take precedence over ordinary laws in the hierarchy of national norms929. Hence, such countries do not need to implement treaties since they automatically become part of national law. However, with regard to the dualist approach, international instruments are not self-executing and international law is not presumed to be part of the domestic law. In order for the international treaty to be binding, it must be incorporated into domestic law through enabling or implementing legislation. Hence, with Sierra Leone applying the dualist approach towards international treaties, there needs to be an Act enacted by the Parliament and then ratified by the President pursuant to Section 40(4) of the Sierra Leonean Constitution in order for a law to be part of Sierra Leonean domestic law.930 Pursuant to this the President of Sierra Leone ratified the Lomé Peace Agreement on 22 July 1999.931 Considering the fact that there have been no domestic prosecutions for crimes committed during the eleven year conflict, it is clear that the domestic legal system considers itself as bound by this amnesty law. Be that as it may, some scholars such as Cassese, consider that the Lomé Peace Agreement, despite the establishment of some of the institutions envisaged therein (e.g. the Commission for the Consolida928 Cf. Lomé Peace Agreement, supra note 77. This Agreement contained other provicions such as the transformation of the RUF into a political party with unlimited access to the media, resources to function as a political party and a trust to fund the party (Art. III); and offered Foday Sankoh the chairmanship of the Board of the Commission for the Management of Strategic Resources which included control of the highly sought diamond mines (Art. V). 929 Cf. Human Rights Watch, Making the International Criminal Court Work: A Handbook for Implementing the Rome Statute, Vol.13, No.4(G) – September 2001; Denza, E., The Relationship Between International and National Law, in Evans, M.D., International Law,_2nd edn., OUP, Oxford, 2003, pp. 425 – 448; Teresa Doherty, The Application of Human Rights Treaties in the Development of Domestic and International Law: A Personal Perspective, in 22 LJIL 4, 2009, pp. 753 – 759. 930 Cf. Section 40(4) of the Constitution of Sierra Leone, 1991, 931 Cf. Lomé Peace Agreement Ratification Act, 22 July 1999, supra note 77.

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tion of Peace, the National Electoral Committee, the Truth and Reconciliation Commission etc) was terminated as far back as in the middle of 2000.932 He supports this allegation with correspondences from the leader of the RUF to the joint Implementation Committee of the Agreement and to the various governments and international institutions which acted as guarantors to the Agreement.933 Similarly, the President of Sierra Leone in his public remarks corroborates this view that he considered the Lomé Peace Agreement as revoked by the rebels due to their non-compliance to the Agreement.934 Hence, in accordance with Article 60 of the Vienna Convention on the Law of Treaties, the Lomé Peace Agreement became void due to the rebels numerous breaches thereof. However, this view does not seem to be shared by the Sierra Leonean legal system, which has not had any proceedings against the low level perpetrators. The lack of criminal proceedings at the domestic level for those who are responsible for the crimes committed throughout the hostilities is regrettable and all the more frustrating for the victims. A possible solution would have been to consider filing applications before the African Court on Human and Peoples Rights (“African Human Rights Court”).935 This organ was established in the context of reforms that were carried out by OAU Heads of States and Governments. The Heads of States 932 Cf. Antonio Cassese, ‘The Special Court and International Law, The Decision Concerning the Lomé Agreement Amnesty’, in 2 JICJ 4, 2004, pp. 1130 – 1140. 933 Ibid., p. 1135. 934 Ibid., p. 1136. In addressing the Truth and Reconciliation Commission on 5 August 1993, President Kabbah stated that: “But alas! The insincerity of the AFRC / RUF both in negotiating and adhering to the Peace Agreements had been abundantly manifested by the 8th of May 2000. Although they were anxious to receive and utilize all the benefits and privileges accorded them under the Lomé Peace Agreement, they certainly were not interested in the burdens thereunder, nor did they consider themselves bound by that Agreement in so far as it imposed any obligations on them. Unfortunately, they could not and did not avail themselves of the benefits without fulfilling their own obligations since there were no condition precedents to be fulfilled by them, nor were these benefits tied up reciprocally to any obligations on their part. Rather, most of the Government’s obligations were to be performed within the context of a strict time frame regardless of non-performance on the part of the AFRC / RUF. It was therefore inevitable that the harassed, brutalized and dehumanized citizens of Sierra Leone would finally rise against the excesses of the AFRC / RUF which were in flagrant violation to what the people considered as the final peace settlement in the form of the Lomé Peace Agreement. The people organized a peaceful demonstration and marched on the residence of Foday Sankoh, the rebel leader, to insist on his observing the terms of the Agreement and to refrain from continuing with activities which obviously threatened the peace, activities such as the continued taking of UN Peace Keepers and the persistent laying of ambushes on the highways for unsuspecting civilian travelers. His response to this peaceful demonstration was the coldblooded murder of 21 demonstrators.” (para. 37). (available at http: // www.sierra-leone.org / kabbah080503.html. 935 The African Court on Human and Peoples Rights is sited in Arusha, Tanzania. See Host Agreement between the Government of the United Republic of Tanzania and the African Union on the Seat of the African Court on Human and Peoples Rights, in Arusha Tansania, 31 August 2007, available at http: //www.african-court.org/en/basic-documents/court-estab lishment.

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adopted the Constitutive Act, which established the AU and aimed at ensuring that the respect for human rights and the maintainance of peace, security and stability become an important goal of the AU.936 The Preamble of the Constitutive Act acknowledges that the leaders in Africa are ‘concious of the fact that the scourge of conflicts in Africa constitutes a major impediment to the socio-economic development of the continent and the need to promote peace, security and stability as a prerequisite for the implementation of our development and intergration agenda’.937 Hence, their determination ‘to promote, protect human rights and peoples rights, consolidate democratic institutions and culture, and to ensure good governance and the rule of law’.938 The African Human Rights Court was established pursuant to the Protocol Additional to the African Charter on the Establishment of the African Court on Human and Peoples’ Rights.939 This African Human Rights Court is empowered to take final and binding decisions on human rights violations. Article 3 provides that it has jurisdiction to deal with all cases and disputes submitted to it concerning the interpretation and application of the African Charter on Human and Peoples’ Right, its Protocol and any other relevant Human Rights instrument ratified by the States concerned.940 Further, it permits Non Governmental Organizations (NGOs) with observer status before the African Commission, and individuals to institute cases directly before it, in accordance with article 34 (6) of the Protocol.941 This would have been an option in order for the victims to at least have the satisfaction that those responsible for their sufferings have been held accountable. However, it remains to be seen how effective this African Human Rights Court could be light of this limitation. In a recent case, the African Human Rights Court, refused to entertain a complaint filed by a Chadian citizen against Senegal on the grounds that Senegal had not consented to individuals and NGO’s filing petitions in cases that concern it.942 Further, another approach at the domestic level would have been – similar to the Gacaca trials in Rwanda – to have the indigenous Courts deal with some of the 936 For more on Africa’s Human Rights, Regional System, see Ntombizozuko Dyani, Sexual Violence, Armed Conflict and International Law in Africa, in 15 African Journal of International and Comparative Law 2, 2007, pp. 230 – 253. 937 Cf. para. 9 of the Preamble to the Constitutive Act of the African Union, adopted in 2000 in Lomé Summit (Togo), entered into force in 2001. 938 Ibid., para. 10. 939 Cf. Protocol to the African Charter on Human and People’s Rights on the Establishment of an African Court on Human and Peoples’ Rights, available at http: //www.african-court.org/ fileadmin/documents/Court/Court %20Establishment/africancourt-humanrights.pdf. 940 Ibid. 941 Ibid., Article 5(3). However, in order for the Court to be able to receive such petitions as stipulated in Article 5(3), the State concerned needs to have expressly given its consent (Article 34[6]). 942 African Court on Human and Peoples’ Rights, Michelot Yogogombaye v. The Republic of Senegal, Application No. 001 / 2008, Judgment, 15 December 2009.

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numerous perpetrators of violations of international humanitarian law. This would have at least given the numerous victims a feeling of satisfaction that justice – albeit in a different form – is being rendered and their tormentors do not go unpunished. Thus, an even more compelling reason why the Special Court ought to have seised this unique opportunity to achieve its goal i.e. the fight against impunity. It might well be that the Special Court was concerned not to create jurisprudence to the effect that amnesty is not only inapplicable for international crimes but also for national crimes. While this would have been groundbreaking jurisprudence, it would have been very controversial and not reflective of customary international law. Having said that, in my view, this would have been a better approach. The Special Court should have prosecuted individuals for crimes committed pursuant to provisions of Sierra Leone’s domestic criminal law. In so doing, it should have – similar to its jurisprudence relating to immunity – found that amnesties are not considered as a bar to criminal prosecutions before international criminal courts. Further, such a finding should then have triggered an analysis of what constitutes an international criminal court. Regrettably, the approach chosen by the Special Court was to completely abstain from any prosecutions, thereby creating a de facto atmosphere of impunity. More so, when it is clear that the Special Court ultimately prosecuted only thirteen individuals with three dying before any conviction or arrest and one still at large.

Chapter 8

The Legacy of the Special Court Black’s Law Dictionary defines legacy as a gift by will.943 Legacy has been defined by a UN policy tool as: “[a] hybrid court’s lasting impact on bolstering the rule of law in a particular society, by conducting effective trials to contribute to ending impunity, while also strengthening domestic judicial capacity. The aim is for this impact to continue even after the work of the hybrid tribunal is complete.”944

The legacy of the Special Court could be assessed from different perspectives, such as the infrastructure it leaves behind (the Court House and the detention centre), the restoration of peace to this war-torn country and the jurisprudence emanating from it. However, the following analysis would limit itself to the jurisprudence of the Special Court. In this chapter we shall be looking at some major jurisprudence of the Special Court, which the author deems would remain a legacy of this institution. Although the Special Court is not part of the national Sierra Leonean legal system, hence its limited ability in this regard to influence – via the application of precedence – the domestic legal system, there were great expectations rested on the Special Court. Such expectations were not only from the local side, they as well emerged from the international community. The UNSC expressed its appreciation for the Special Court’s “vital contribution to the establishment of the rule of law in Sierra Leone and the subregion”.945 It was further expected that the Special Court’s presence would enhance the domestic legal system by exporting best practices, building the capacity of nationals and boosting legal reforms in Sierra Leone.946 The capacity building was supposed to be achieved by having Sierra Leonean nationals work at the Special Court as well as cooperation between the Special Court and the national judiciary. However this did not occur as expected for certain reasons. Binta Mansaray, the current Registrar of the Special Court submits that: Cf. Bryan A. Garner, Black’s Law Dictionary, 9th edn., West Group, p. 974. Cf. Office of the High Commissioner for Human Rights, Rule of Law Tools for PostConflict States, Maximizing the Legacy of Hybrid Courts, 2008, pp. 4 – 5. 945 UNSC Resolution 1688, adopted by the Security Council at its 5467th meeting on 16 June 2006, UN Doc. S / RES / 1688. 946 Cf. From The Taylor Trial to a Lasting Legacy: Putting the Special Court Model to the Test, supra note 47, p. 28. 943 944

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“[A]t the beginning, there was a deliberate effort to keep away from the national judiciary, for political reasons, in order to remain independent from it”.947 In as much as the whole jurisprudence of the Special Court could be regarded as its legacy, there are a few particularly important Decisions / issues it addressed that merit being addressed under this legacy section. These are the jurisprudence on amnesty (I.); the jurisprudence on the new crime of forced marriage (II.); the jurisprudence on head of state immunity (III.); the issue of jurisdiction over children between 15 and 18 years of age (IV.); the jurisprudence on sentencing (V.); and the establishment of an Outreach Section (VI.).

I. Jurisprudence on Amnesty The granting of amnesty for international crimes remains the subject of controversy between those who believe that striving for peace should prevail over any needs for justice to be rendered. This debate has involved various professional groups ranging from politicians, sociologists, historians to lawyers.948 The debate on the pros and cons of granting amnesties in general is however beyond the scope of this book, and thus the proceeding analysis would be limited to whether existing practice recognizes amnesties granted for international crimes. It is therefore obvious that the nature or characterization of the crimes as ‘international’ is a determinant factor in this discussion. Consequently, it is imperative to understand what an ‘international crime’ is before proceeding to discuss amnesty in relation to international crimes.

1. What is an International Crime? Generally the international criminal courts have developed enriching jurisprudence on specific international crimes but have not devoted much attention on establishing what amounts to an international crime. According to Antonio Cassese, international crimes are: “[b]reaches of international rules entailing the personal criminal liability of the individuals concerned […]”.949 According to A. Trainin, who represented the USSR in the drafting of the Nuremberg Charter, an international crime is: “[a]n infringement of the connection between States and peoples, a connection which constitutes the basis of relations between countries and countries. International crime is directed towards the worsening, the rendering acute, the rupture of those connections. Those guilty Interview conducted by ICTJ with Binta Mansaray, Freetown, 21 April 2008. Cf. Dov Jacobs, Puzzling Over Amnesties: Defragmenting the Debate for International Criminal Tribunals, forthcoming. 949 Cf. Antonio Cassese, International Criminal Law, 2nd edn, OUP, Oxford, 2008, p. 11. 947 948

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of such crimes hold up the stream of trains, ships, people, goods, passing in a broad current from one country to another; they attempt to build up barriers, to set one State against another, one people against another […]. International crime, consequently, must be defined as an infringement of the foundations of international communion.”950

Further, the United States Military Tribunal in Nuremberg defined an international crime as “such an act universally recognized as criminal, which is considered a grave matter of international concern and for some valid reason cannot be left within the exclusive jurisdiction of the state that would have control over it under ordinary circumstances”.951 The above definitions can be summed up in the following ‘three-pronged international crime test’, as laid out by Ambos,952 which must be met in order for a crime to be characterized as an international crime: (1) The respective underlying prohibition (primary norm) must be part of international law; (2) a breach of this prohibition must be particularly serious, i.e., it must affect important universal values; (3) the breach must entail individual criminal responsibility in its own right, i.e., independent of any criminalisation in domestic criminal law. Thus, from the above definitions, it is clear that an international crime is a violation of something of common concern to all nations and not just one nation as would normally be the case. Having looked at what amounts to an international crime, the next step would be to analyze the concept of amnesty.

2. The Concept of Amnesty Black’s Law Dictionary defines amnesty as: “[a] pardon extended by the government to a group or class of persons, usually for a political offense; the act of a sovereign power officially forgiving certain classes of persons who are subject to trial but have not yet been convicted. Unlike an ordinary pardon, amnesty is usually addressed to crimes against state sovereignty – that is, to political offenses with respect to which forgiveness is deemed more expedient for the public welfare than prosecution and punishment.”953

950 Cf. A.N. Trainin, edited by A.Y. Vyshinski, Hitlerite Responsibility under Criminal Law, transl. Rothstein, Andrew, Institute of Law, Academy of Sciences of the U.S.S.R., 1946, p. 32. 951 US Military Tribunal at Nuremberg, re List et al., Judgment, 29 July 1948, printed in Trials of War Criminals Before the Nuremberg Military Tribunals Under Control Council Law No. 10, VIII, p. 1241. 952 Cf. Kai Ambos, Judicial Creativity at the Special Tribunal for Lebanon: Is There a Crime of Terrorism Under International Law?, supra note 363. 953 Cf. Bryan A. Garner, Black’s Law Dictionary, 9th edn., West Group, 2009, p. 99.

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The French Nouveau Petit Robert Dictionary defines amnesty as “acte du pouvoir législatif prescrivant l’oubli officiel d’une ou plusieurs catégories d’infractions et annulant leurs conséquences pénales”.954 Further, in Knote v. U.S, it was held that “amnesty operates as an extinction of the offence of which it is the object, causing it to be forgotten, so far as the public interests are concerned”.955 Hence, it is clear that the act of granting amnesties has considerable consequences on the judiciary of the underlying state i.e. the judiciary is hindered in the performance of its sovereign task of applying the law to all and at all times.956 In the same light, Bassiouni describes amnesty as a form of impunity, which is the antithesis of accountability. In doing so, he points out that amnesty is a deliberate positive act and can occur only after a person, or group of persons have been convicted.957 Amnesties that are granted before any conviction are ‘pre-prosecution amnesties’ and are developed as part of a policy of impunity.958 Amnesties exist in several forms depending on the particularities of the society where they are being granted.959 Amnesties could be in the form of provisions in treaties or agreements, a decision taken by the executive or a legislative or constitutional act of state.960 The granting of amnesties in the aftermath of conflicts is an old phenomenon and can be traced as far back as to 1286 B.C. at the end of the battle of Kadesh between the Egyptians and the Hittites.961 However, from then on and up until the 20th century, the granting of amnesties appeared to be a pure European practice with a few exceptions being the Treaty with the Delawares of 1778 between the USA and the indigenous groups.962 Other exceptions were a few peace treaties between Great Britain and non-European countries.963 In the 20th Century there seemed to be a change in 954 Cf. Paul Robert, Le Nouveau Petit Robert, Dictionnaire Alphabétique et Analogique de la Langue Francaise, Paris, 1993, p. 72. 955 US Supreme Court, Knote v. United States, 95 U.S. 149, 1877, available at http: //case law.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=95&invol=149. 956 Cf. Faustin Z. Ntoubandi, Amnesty for Crimes Against Humanity under International Law, Martinus Nijhoff Publishers, Leiden, Boston, 2007, p. 31. 957 Cf. Cherif Bassiouni, Accountability for Violations of International Humanitarian Law and Other Serious Violations of Human Rights, in: Id. (ed.), Post Conflict Justice, 2002, p. 26. 958 Idem. 959 Cf. Robert Cryer, Hakan Friman, Darryl Robinson and Elizabeth Wilmshurst: An Introduction to International Criminal Law and Procedure, supra note 394, p. 32. 960 Cf. Yasmin Q. Naqvi, Impediments to Exercising Jurisdiction over International Crimes, T.M.C. Asser Press, The Hague, 2010, p. 75. 961 Cf. Andreas O´Shea, Amnesty for Crime in International Law and Practice, Kluwer Law International, The Hague, 2002, pp. 5 et seq. 962 Cf. Article 1 of the Treaty with the Delawares, 17 September 1778, which provided that “[a]ll offences or acts of hostilities by one, or either of the contracting parties against the other, be mutually forgiven, and buried in the depths of oblivion, never more to be had remembrance”, available at: http: //digital.library.okstate.edu/kappler/vol2/treaties/del0003.htm.

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attitudes towards the granting of amnesty. While there was still an amnesty clause in the aftermath of WW I, it did not play a great role in the aftermath of WW II.964 In relation to WW I, Article 6 of the Conditions of Armistice signed on 11 November 1918 provided for an amnesty for all persons in the areas from which the German army was to withdraw.965 The Charter of the International Military Tribunal, which provided for the prosecution of persons responsible for crimes against peace, war crimes and crimes against humanity committed during WW II, marked an end – at least in part – to the practice of granting amnesties at the end of conflicts. While the peace treaties between the Allied Powers and the Axis Powers imposed on the latter the obligation to prosecute war offenders, the Allies granted amnesties to their nationals or sympathizers. An example of such an obligation imposed on the Axis Powers is Article 6 of the peace treaty signed between the Allied Powers and Hungary. It provided that: “[H]ungary shall take all necessary steps to ensure the apprehension and surrender for trial of: Persons accused of having committed, ordered or abetted war crimes and crimes against peace or humanity; Nationals of any Allied or Associated Power accused of having violated their national law by treason or collaboration with the enemy during the war.”966

On the other hand, an example of an amnesty granted to nationals of the Allied Powers is the French law amnestying all acts committed by French Resistance during the German occupation of France: “[A]mnestie pleine et entière est accordée à tous faits accomplie postérieurement au 10 Juin 1940 et antérieurement au 1er Janvier 1946 dans l’intention de servir la cause de la libération du territoire, ou de contribuer à la libération définitive de la France.”967

Thus, the concept of amnesty is not a novelty in international law. However, despite the fact that there have been a number of international criminal courts set up since the famous Nuremberg Tribunals, they have all not had to address the issue of amnesty in international humanitarian law. The Special Court is hitherto the only international criminal court that has had to address the issue of amnesty. At the time the Special Court was established, one of the issues that critical observers awaited 963 See for example the Treaty of Nanking of 29 August 1842, between the Queen of England and the Emperor of China; see also the Treaty of Vereeniging of 31 May 1902 between Great Britain and the Boer forces, available at http: //www.nelsonmandela.org/omalley/index. php/site/q/03lv01538/04lv01600/05lv01601/06lv01602.htm. 964 Cf. Faustin Z. Ntoubandi, Amnesty for Crimes Against Humanity under International Law, supra note 956, p. 19. 965 See www.firstworldwar.com / source / armisticeterms.htm. 966 Cf. Fred L. Israel (ed.), Major Peace Treaties of Modern History 1648 – 2000, Vol. IV, Chelsea House Publishers, Philadelphia, 2002, p. 2557. 967 Cf. Article 30 of the French Law No. 51-18 of 5 January 1951. See also Faustin Z. Ntoubandi, Amnesty for Crimes Against Humanity under International Law, supra note 956, p. 21.

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was how the Special Court was going to deal with the amnesties granted prior to its establishment. As noted above, Article IX of the Lomé Peace Agreement granted the rebels and their leader with amnesty for the crimes they committed during the conflict.968 However, before addressing this case-specific issue with regard to the Special Court, it is imperative at this point to first carry out a quick perusal of the concept of amnesty in international law per se. There are advocates for and against the granting of amnesties for crimes, including international crimes, i.e. genocide, crimes against humanity and war crimes.969 In this regard, Ambos is supportive of a bifurcated approach distinguishing between blanket and conditional amnesties, with the former ones being generally in-admissible and the latter ones admissible in principle.970 He argues that while international law unequivocally prohibits the granting of blanket amnesties reasons being that their primary goal is to completely conceal past crimes by preventing any investigations, conditional amnesties may be admissible under certain circumstances.971 Conditional amnesties – similar to TRCs – gain legitimacy depending on their establishment procedure i.e. the broader the participation of those who would benefit from the amnesty; the more transparent the procedure is carried out, the more legitimacy the amnesty enjoys.972 Those who advocate for the recognition of amnesties for 968 See supra note 77. The Special Representative of the UN Secretary-General’s appended reservation to the effect that amnesties under Article IX would not apply to international crimes was also reflected in the preamble to Security Council Resolution 1315. Likewise, in the Report of the UN Secretary-General, October 2000, it was stated that ‘amnesty is considered to be an accepted legal concept and a gesture of peace and reconciliation at the end of a civil war or an internal armed conflict’ but ‘cannot be granted in respect of international crimes, such as genocide, crimes against humanity or other serious violations of international humanitarian law’, supra note 21. 969 For more on how amnesties may be favorable to peculiar needs of transitional societies see D. Orentlicher, Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime, 100 Yale Law Journal 8, 1991, p. 2537; W. Michael Reisman, Legal Responses to Genocide and Other Massive Violations of Human Rights, 59 L. & Contemp. Probs. 75, 1996, p. 79; Steven R. Ratner, Jason S. Abrams and James L. Bischoff, Accountability for Human Rights Attrocities in International Law: Beyond the Nuremberg Legacy, 3rd edn., OUP, Oxford, 2009. Contra the granting of amnesty for international crimes, see Gerhard Werle, Völkerstrafrecht, Mohr Siebeck, Tübingen 2003, mn. 191; Antonio Cassese, International Criminal Law, supra note 293, pp. 315 et seq. See also Kai Ambos, The Legal Framework of Transitional Justice: A Systematic Study with a Special Focus on the Role of the ICC, in: Kai Ambos / Judith Large / Marieke Wierda (eds.), Building a Future on Peace and Justice, Studies on Transitional Justice, Peace and Development, Springer-Verlag, Berlin, Heidelberg 2009, pp. 19 et seq. 970 Cf. Kai Ambos, The Legal Framework of Transitional Justice: A Systematic Study with a Special Focus on the Role of the ICC, supra note 969, p. 54. 971 Ibid., pp. 55 et seq. 972 Ibid., p. 62. It should be borne in mind that TRCs differ in their mandate and competence. Ambos distinguishes between so-called ‘impunity TRCs’ with a limited mandate and no judicial powers, thereby serving as legitimizing the impunity of the most responsible; and

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international crimes put forward the argument that this step is sometimes necessary in order to achieve peace. Further, Article 6(5) of AP II provides that “[a]t the end of hostilities, the authorities in power shall endeavor to grant the broadest possible amnesty to persons who have participated in the armed conflict, or those deprived of their liberty for reasons related to the armed conflict, whether they are interned or detained.”973

This provision is used by brokers of peace agreements that contain such amnesties, e.g. the Abidjan Peace Accord signed in November 1996 between the government of Sierra Leone and the RUF. This peace agreement granted inter alia the RUF amnesty in order to “consolidate the peace and promote the cause of national reconciliation”.974 Similarly, some national courts rely on this provision to justify national amnesties.975 Be that as it may, it is suggested that considering the fact that the object and purpose of AP II is to achieve the greater protection of victims of non-international armed conflicts, Article 6(5) of AP II should be interpreted in this light.976 Hence, in line with Article 31 of the Vienna Convention on the Law of Treaties which provides that “[A] treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light

‘effective TRCs’ with broad mandates and quasi judicial powers who decide independently on granting amnesties basing their decisions on rationale criteria (The Legal Framework of Transitional Justice: A Systematic Study with a Special Focus on the Role of the ICC, p. 43). 973 Cf. Article 6(5) AP II. According to the ICRC “[a]mnesty is a matter within the competence of the authorities” and “[t]he object of [Article 6(5)] is to encourage gestures of reconciliation which can contribute to re-establishing normal relations in the life of a nation which has been divided”. ICRC Commentary on Protocol II of 1977 to the Geneva Conventions of 1949, paras. 4617 and 4618. 974 Cf. Abidjan Peace Accord, supra note 69. It’s Art. 14 provides that “[T]o consolidate the peace and promote the cause of national reconciliation, the Government of Sierra Leone shall ensure that no official or judicial action is taken against any member of the RUF / SL in respect of anything done by them in pursuit of their objectives as members of that organization up to the time of the signing of this Agreement. In addition, legislative and other measures necessary to guarantee former RUF / SL combatants, exiles and other persons, currently outside the country for reasons related to the armed conflict shall be adopted ensuring the full exercise of their civil and political rights, with a view to reintegration within the framework of full legality.” 975 Cf. Leila Nadya Sadat, The International Criminal Court and the Transformation of International Law: Justice for the New Millenium, Transnational Publishers, Inc., Ardsley, New York, 2002, p. 64. See also Bruce Broomhall, International Justice and the International Criminal Court: Between Sovereignty and the Rule of Law, OUP, Oxford, 2003, p. 96. 976 Cf. Drazan Dukic, Transitional Justice and the International Criminal Court – in ‘the interest of justice’, 89 International Review of the Red Cross 867, 2007, p. 707; Yasmin Naqvi, Amnesty for War Crimes: Defining the Limits of International Recognition, 85 International Review of the Red Cross 851, 2003, p. 604; contra, Louise Mallinder, Amnesty, Human Rights and Political Transitions: Bridging the Peace and Justice Divide, Studies in International Law, Hart, Oxford, 2008, pp. 125 – 126.

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of its object and purpose”,977 the provisions of AP II shall be interpreted as not specifying which acts shall be eligible for an amnesty.978 It should be noted that the raison d’être of Article 6(5) of AP II was to provide combatants in non-international armed conflicts with a similar protection as that provided to combatants in international armed conflicts. This form of protection is known as ‘combatant immunity’ and applies for acts of hostility, including the killing of enemy combatants which were carried out by the combatant and do not violate international humanitarian law.979 Moreso because in non-international armed conflicts, the absence of such a principle and the fact that national legislations invariably punish such acts, the combatants find themselves being punished for the mere fact that they took part in hostilities irrespective of whether they respected international humanitarian law or not.980 Generally, it should be noted that in order for states to prosecute, they have to assert that they have jurisdiction over the crime(s). In this regard, states could either apply the principle of territoriality (Territorialitätsprinzips), which provides the state with jurisdiction for all crimes committed on its territority; the principle of active personality (active Personalitätsprinzip), which provides the state of the nationality of the alleged perpetrator with jurisdiction. The protective principle (Schutzgrundsatz) also permits the exercise of jurisdiction on the basis of the principle of passive nationality (passives Personalitätsprinzip), whereby a state claims jurisdiction for crimes committed abroad against its citizens. Further, a state could apply the principle of universal jurisdiction (Weltrechtsprinzip), which permits it to prosecute crimes committed, all over the world regardless of the location of the commission of the crime or of the nationality of the alleged perpetrator or victim.981 With regard to the last principle i.e. universal jurisdiction – the principle that the Special Court relied on in order to disregard the amnesty granted in the Lomé Peace Agreement – while it has been commonly confused with the aut dedere aut judicare rule (which in Latin means to extradite or to prosecute), it should be noted that these are two conceptually distinct rules of international law.982 Universal jurisdiction can 977 Vienna Convention on the Law of Treaties, 1155 UNTS 331, 23 May 1969, entry into force 27 January 1980, Article 31. 978 Cf. Faustin Ntoubandi, Amnesty for Crimes Against Humanity under International Law, supra note 956, p. 114. 979 Ibid., p. 224. 980 Ibid. See also Douglass Cassel, Lessons from the Americas: Guidelines for International Responses to Amnesties for Atrocities, 59 Law and Contemporary Problems 4, 1996, p. 218. 981 For more on the different forms of jurisdiction, see Kai Ambos, Internationales Strafrecht, supra note 22, §2, mn. 6. 982 Cf. Amnesty International, Universal Jurisdiction, UN General Assembly Should Support This Essential International Justice Tool, AI Index: IOR 53 / 015 / 2010, 5 October 2010, p. 10.

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be defined on the one hand as “the ability of the court of any state to investigate and try persons for crimes committed outside its territory which are not linked to the state by the nationality of the suspect or the victims or by harm to the state’s own national interest”.983 Hence, universal jurisdiction is a right which the state has to exercise jurisdiction. The aut dedere aut judicare rule on the other hand, is “an obligation imposed on states either to exercise jurisdiction over a person suspected of a certain category of crimes or to extradite that person to a state willing or able to prosecute the person in question or surrender the said person to an international criminal court with jurisdiction over the said person”.984 With regard to the right to prosecute, several states have enacted legislation granting themselves jurisdiction over war crimes perpetrators in accordance with the universality principle.985 This principle stems from the perception that certain crimes are of such a grievous nature that the international community has an interest in bringing the perpetrators thereof to justice. For example the US Constitution in its Article I, Section 8 empowers Congress to “define and punish Piracies and Felonies committed on the High Seas, and Offences against the Law of Nations”.986 Similarly, the Austrian Penal Code establishes universal jurisdiction over “punishable acts which Austria is under an obligation to punish”.987 Likewise, the German Code of Crimes Against International Law (Völkerstrafgesetzbuch) provides for the exercise of universal jurisdiction over genocide, crimes against humanity and war crimes.988 Further, the UK law provides for a – albeit limited form of universal jurisdiction for war crimes, crimes against humanity and genocide i.e. the crimes must Ibid. Ibid. All UN member states have ratified treaties containing the aut dedere aut judicare obligation. See Amnesty International, International Law Commission: The Obligation to Extradite or Prosecute (aut dedere aut judicare), AI Index: IOR 40 / 001 / 2009, 3 February 2009, available at: http: //www.amnesty.org/en/library/info/IOR40/001/2009/en. 985 A significan number of states have as well enacted lesgislation granting themselves universal jurisdiction over ordinary crimes. Examples of such states are Austria, Azerbaijan, Belarus, Bosnia and Herzegovina, Bulgaria, Cuba, Czech Republic, Denmark, Estonia, Ethiopia, Germany, Italy, Lebanon, Portugal and Slovenia. 986 Cf. The Foreign Relations Law of the United States, Vol. 1 and 2, with Reporter’s Notes, Tables and Index, American Law Institute, Washington D.C., 14 May 1986, p. 255. (Emphasis added). 987 Penal Code, Art. 64(1)(6), Bundesgesetz vom 23 Januar 1974 über die mit gerichtlicher Strafe bedrohte Handlungen (Strafgesetzbuch). 988 Code of Crimes Against International Law (Völkerstrafgesetzbuch), 30 June 2002, Section 1 (Germany). Prior to this new legislation, Germany exercised universal jurisdiction pursuant to Article 6 of the German Criminal Code (StGB). The European Court of Human Rights recognized Germany’s right to exercise universal jurisdiction pursuant to Art. 6 of the German Penal Code (ECHR, Case of Jorgic v. Germany, Application No. 74613 / 01, Judgment, 12 July 2007). For more on the application of the CCAIL in Germany, see Kai Ambos, International Core Crimes, Universal Jurisdiction and § 153F of the German Criminal Procedure Code: A Commentary on the Decisions of the Federal Prosecutor General and the Stuttgart Higher Regional Court in the Abu Ghraib / Rumsfeld Case, 18 CLF 1, 2007, pp. 43 – 58. 983 984

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have been committed by a UK resident at the time of either the commission of the act or the institution of proceedings.989 Likewise, the Russian Criminal Code provides in its Article 12(3) that “foreign nationals and stateless persons not permanently residing in the Russian Federation who have committed a crime outside the Russian Federation shall be subject to criminal prosecution under the present Code in cases where the crime is directed against the interests of the Russian Federation or Russian national or a stateless person permanently residing in the Russian Federation, and in cases provided for by the international treaties to which the Federation is a party, if they have not been convicted in a foreign State and are being tried in the territory of the Russian Federation”.990 Further, in Argentina Law 26.200, implementing the Rome Statute inter alia makes genocide, crimes against humanity and war crimes a crime under domestic law and provides for the exercise of universal jurisdiction when so stipulated in a convention to which Argentina is a signatory.991 More so, Canada through its Crimes Against Humanity and War Crimes Act provides for universal jurisdiction with regard to genocide, crimes against humanity and war crimes.992 In addition, Senegal through its Penal Code and Criminal Procedure Code, provides for universal jurisdiction for genocide, crimes against humanity, war crimes, among other crimes, as long as there is a link i.e. alleged perpetrator is under Senegalese jurisdiction, or one of the victims is in Senegal soil or the government is granted the extradition of the alleged perpetrator.993 With regard to the Netherlands, the International Crimes Act empowers it to prosecute the crimes of genocide, crimes against humanity, and war crimes.994 Another example is Spain that provides for universal jurisdiction over so-called international crimes.995 These 989 Cf. International Criminal Court Act, 2001, Section 68. However, with regard to when the proceedings were instituted this would depend on whether the act constituted an offence in the particular part of the UK that is exercising jurisdiction. 990 UN Doc. A / CN.4 / 599, 30 May 2008, paras. 35 – 36. 991 Ley 26.200, enacted 13 December 2007, Official Gazette, 9 January 2007 (Argentina), Art. 3 (d) (“Esta Ley se aplica […] d) En los casos previstos en convenios internacionales de los que la República Argentina es parte”). 992 Crimes Against Humanity and War Crimes Act, enacted in 2000, Section 6 (Canada). (1) (“Every person who, either before or after the coming into force of this section, commits outside Canada (a) genocide, (b) crimes against humanity, or (c) a war crime, is guilty of an indictable offence and may be prosecuted for that offence in accordance with section 8”.) 993 La Loi 2007-02, modifiant le Code Pénal de la République du Sénégal, et de la Loi 2007-05, 12 février 2007, modifiant le Code de Procédure pénale de la République du Sénégal. 994 International Crimes Act of 19 June 2003, containing Rules Concerning Serious Violations of International Humanitarian Law (the Netherlands). 995 Ley Orgánica del Poder Judicial, aticulo 23(4) (Spain) (“Igualmente, será competente la jurisdicción Espanola para conocer de los hechos cometidos por espanoles o extranjeros fuera del territorio nacional susceptibiles de tipificarse, según la Ley espanola, como alguno de los siguientes delitos: 1. Genocidio y lesa humanidad. 2. Terrorismo.

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states are representative of the various legal systems thereby consolidating the view that the universality principle is recognized throughout the world regardless of which legal system is applicable in the state. This universal right to prosecute combined with the common interest of mankind in the repression of international crimes go in the same line with the obligation to prosecute.996 In this regard, it could be said that the granting of amnesty is contrary to the obligation of states to prosecute as defined in international conventions or inferred from international custom.997 In this regard, Faustin Ntoubandi distinguishes between two broad categories of international conventions that perspicuously put certain duties on States to act: international criminal law conventions and general human rights conventions.

3. International Criminal Law Conventions This category consists of those international instruments that essentially require from States the prosecution or extradition of persons who have committed offences listed in the underlying conventions.998 They contain numerous offences such as 3. Pirateria y apoderamiento ilicito de aeronaves. 4. Delitos relativos a la prostitución y corrupción de menores e incapaces. 5. Tráfico ilegal de drogas psicotrópicas, tóxicas y estupefacientes. 6. Tráfico ilegal o inmigración clandestina des personas, sean o no trabajadores. 7. Los relativos a la mutilación genital femenina, siempre que los responsables se encuentren en Espana. 8. Cualquier otro que, según los tratados y convenios internacionales, en particular los Convenios de derecho internacional humanitario y de protección de los derechos humanos, deba ser perseguido en Espana. Sin perjuicio de lo que pudieran disponer los tratados y convenios internacionales suscritos por Espana, para que puedan conocer los Tribunales espanoles de los anteriores delitos deberá quedar acreditado que sus presuntos responsables se encuentran en Espana o que existen victimas de nacionalidad espanola, o conttatarse algún vinculo de conexión relevante con Espana y, en todo caso, que en otro pais competente o en el seno de un Tribunal internacional no se ha iniciado procedimeinto que suponga una investigación y una persecución efectiva, en su caso, de tales hechos punibles.”) 996 Cf. Cherif Bassiouni, International Crimes: Jus Cogens and Obligatio Erga Omnes, 59 Law and Contemporary Problems 4, 1996, p. 265; See also J. Paust, Universality and the Responsibility to Enforce International Criminal Law: No Sanctuary for Alleged Nazi War Criminals, 11 Houston Journal of International Law, pp. 337 – 340 (1989), reproduced in: J. Paust et al. (eds.), International Criminal Law: Cases and Materials, Carolina Academic Press, Durham, 1996, p. 75 et seq. 997 For a similar finding, see Claus Kress, War Crimes Committed in Non-International Armed Conflict and the Emerging System of International Criminal Justice, 30 Israel Yearbook on Human Rights, 2000, pp. 103 – 178. 998 Cf. M.Cherif Bassiouni / Edward M. Wise, Aut Dedere Aut Judicare: The Duty to Extradite or Prosecute in International Law, Dordrecht, Boston, London, 1995, p. 73.

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war crimes, crimes against humanity, genocide, use of force against internationally protected persons, taking of civilian hostages, theft of nuclear materials, interference with sub-marine cables, crimes against the safety of international maritime navigation etc.999 Taking into account these international criminal law conventions that require States to either extradite or prosecute those who commit international crimes, it could be established that positive international law prescribes the prosecution of international crimes.1000 For example, the Convention on the Prevention and Punishment of the Crime of Genocide obliges all States Parties to ‘undertake to prevent and to punish’ those responsible for genocide.1001 Another international convention is the Convention against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment as well imposes an obligation on States to prosecute persons who have committed torture.1002 Further the 1949 Geneva Conventions which contain the grave breaches for which individuals are held individually criminally responsible, oblige States to provide “effective penal sanctions for persons committing, or ordering [the commission] of grave breaches of the Conventions”.1003 Hence these international criminal conventions impose upon states an obligation to either prosecute or extradite perpetrators of international crimes.

999 Cf. Faustin Ntoubandi, Amnesty for Crimes Against Humanity Under International Law, supra note 956, p. 114. For a detailed list of these international offences, see M. Cherif Bassiouni and Edward M. Wise, Aut Dedere Aut Judicare: The Duty to Extradite or Prosecute in International Law, supra note 998, p. 283. 1000 Cf. Faustin Ntoubandi, Amnesty for Crimes Against Humanity Under International Law, supra note 956, p. 114. 1001 Cf. Convention on the Prevention and Punishment of the Crime of Genocide, adopted by United Nations General Assembly Resolution 260(III) A, 9 December 1948, entered into force 12 January 1951. It reads in its relevant parts that: “[P]ersons committing genocide or any of the other acts enumerated in article III shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals […]. The Contracting Parties undertake to enact, in accordance, with their respective Constitutions, the necessary legislation to give effect to the provisions of the present Convention, and, in particular, to provide effective penalties for persons guilty of genocide or any of the other acts enumerated in article III” (Articles 4 – 5). 1002 Cf. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted by United Nations General Assembly Resolution 39 / 46, annex, 39, 10 December 1984, p. 197, UN Doc. A / 39 / 51 (1984), entered into force 26 June 1987. 1003 Cf. Geneva Convention IV, supra note 35, which provides in its relevant part that “[t]he High Contracting Parties undertake to enact any legislation necessary to provde effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present Convention defined in the following Article” (Article 146).

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4. General Human Rights Conventions Although conventions that fall under this category do not expressly impose upon States a duty to punish or extradite perpetrators of international crimes, they do require them to ensure that the rights provided in the underlying instruments are respected, and in case of violations, that remedies are provided.1004 For example the International Convention on the Civil and Political Rights protects inter alia, the inherent right to life,1005 provides protection against torture,1006 and against slavery.1007 It further requires States to respect and ensure that the rights contained therein are respected and in case of violation, that remedies are provided.1008 Further, the African Charter on Human and Peoples’ Rights (“ACHPR”) requires States Parties to recognize the rights, duties and freedoms contained therein and to adopt their domestic legislations accordingly.1009 It as well provides for the compensation of victims in case of miscarriage of justice.1010 Likewise, the European Convention on Human Rights provides that States Parties shall have the obligation “to secure within their jurisdiction the rights and freedoms defined” therein. These include the right to be protected by law, the right to liberty and security of the person, freedom from slavery or servitude, and freedom from torture, inhuman or degrading treatment or punishment.1011 Similarly, the Universal Declaration of Human Rights (“UDHR”) provides in its Article 8 that: “[E]veryone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted to him by the constitution or by law.”1012 It should be noted that there are two schools of thought with regard to this legal instrument. Proponents of the first school of thought hold that the UDHR is devoid of any binding effect and only represents recommendations on principles of human rights and freedoms.1013 Proponents of the second school of thought are of the view that the UDHR has a legally binding status. They regard the UDHR as an authoritative UN Charter interpretation, laying down general principles of law in terms of Article 38(1)(c) of the ICJ Statute.1014 1004 Cf. Faustin Ntoubandi, Amnesty for Crimes against Humanity under International Law, supra note 956, p. 124. 1005 ICCPR, Article 6. 1006 ICCPR, Article 7. 1007 ICCPR, Article 8. 1008 ICCPR, Articles 2 and 3. 1009 ACHPR, Article 1. 1010 ACHPR, Article 14(6). 1011 European Convention on Human Rights, Articles 2, 5, 4 and 3 respectively. 1012 UDHR, Chapter 3. 1013 See Bruno Simma, The Charter of the United Nations: A Commentary, 2nd edn., OUP, Oxford, Vol. II, 2002, p. 926. 1014 Idem. See also Faustin Ntoubandi, Amnesty for Crimes Againts Humanity under International Law, supra note 956, pp. 130 – 131.

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Be that as it may, although the above mentioned international legal instruments clearly provide an unambiguous obligation for States to prosecute, it should be noted that the scope of protection of these legal instruments varies.1015 In particular in relation to the international criminal law conventions category which provide for the prosecution or extradition of perpetrators of violations of the crimes contained in these instruments, the scope of protection varies depending on the crime. The Genocide Convention provides that: “[p]ersons charged with genocide or [conspiracy to commit genocide, direct and public incitement to commit genocide, attempt to commit genocide, and complicity in genocide], shall be tried by a competent tribunal of the State in the territory of which the act was committed.”1016

This wording therefore limits the scope of applicability since all other states where the crime was not committed do not incur any obligation thereon. Moreover, the Torture Convention imposes on states a broader jurisdictional obligation by providing that “[E]ach State Party shall likewise take such measures as may be necessary to establish its jurisdiction over such offences in cases where the alleged offender is present in any territory under its jurisdiction”.1017 Last but not least, the Geneva Conventions provide an even broader jurisdictional obligation by providing that State Parties should “search for persons alleged to have committed, or to have ordered to be committed such grave breaches, and […] bring such persons, regardless of their nationality, before its own courts”.1018 In addition to the above cited treaties, opinion juris is supportive of this view that amnesties for international crimes are not to be recognized. This was the view of the District Court of Jerusalem in the Eichmann case, which found that: “[T]he abhorrent crimes defined in this law are not crimes under Israeli law alone. These crimes which struck at the whole of mankind and shocked the conscience of nations, are grave offences against the law of nations itself. Therefore, so far from international law ne-

1015 Cf. Dov Jacobs, Puzzling Over Amnesties: Defragmenting the Debate for International Criminal Tribunals, forthcoming, p. 11. 1016 Convention on the Prevention and Punishment of the Crime of Genocide, adopted by United Nations General Assembly Resolution 260(III) A, 9 December 1948, entered into force 12 January 1951, Article VI. 1017 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted by United Nations General Assembly Resolution 39 / 46, adopted on 10 December 1984, entered into force 26 June 1987, Article 5.2: States are required to establish jurisdiction when (a) the offences are committed in any territory under its jurisdiction or on board a ship or aircraft registered in that state; (b) the alleged offender is a national of that State; (c) the victim is a national of that State if that State considers it appropriate (Article 5.1). 1018 Geneva Convention I, Article 49.

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gating or limiting the jurisdiction of countries with respect to such crimes, international law is, in the absence of an International Court, in need of the judicial and legislative organs of every country to give effect to its criminal interdictions and to bring the criminals to trial. The jurisdiction to try crimes under international law is universal.”1019

This position was reaffirmed in Regina v. Bartle and the Commissioner of Police for the Metropolis and Others Ex Parte Pinochet, wherein the UK House of Lords held that: “[T]he idea that individuals who commit international crimes are internationally accountable for them has now become an accepted part of international law”.1020 In the same light, the ICTY in the Furundzija case opined that amnesties shall not be applicable for internationally recognized.1021 Likewise, the UN’s approach has been unequivocal against the granting of amnesties for the so-called international core crimes. Illustratively, in 1999, during the Lomé Peace Accord, the UN Special Representative of the Secretary-General, Ambassador Francis G. Okelo attached the following reservation to the agreement: “[T]he United Nations holds the understanding that the amnesty provisions of the Agreement shall not apply to international crimes of genocide, crimes against humanity, war crimes and other serious violations of international humanitarian law.”1022

It is suggested that this reservation, by its very existence, served as a carte blanche for the UN to set the temporal jurisdiction (ratione temporis) of the Special Court at a date convenient for it, since the UN did not consider the amnesty as binding.1023 While, it is true that this reservation did make the UN position vis-à-vis am-

1019 Cf. District Court of Jerusalem, Attorney-Genral of the Government of Israel v. Eichman (1961), 36 ILR 5, para. 12. 1020 United Kingdom House of Lords, Regina v. Bartle and the Commissioner of Police for the Metropolis and Others Ex Parte Pinochet; Regina v. Evans and Another and the Commissioner of Police for the Metropolis and Others Ex Parte Pinochet (On Appeal from a Divisional Court of the Queen’s Bench Division), 24 March 1999 (citing Arthur Watts, The Legal Position in International Law of Heads of States, Heads of Government and Foreign Ministers, Recueil der Cours de l’Academie de Droit International de La Haye, Vol. 247, 1995, pp. 82 – 84). 1021 ICTY, The Prosecutor v. Anto Furundzija, Case No. IT-95-17 / 1-T, Judgment, 10 December 1998, para. 155. 1022 See Report of the Secretary-General, 4 October 2000, supra note 1515, para. 23. In this Report, the Secretary-General further states that ‘amnesty is considered to be an accepted legal concept and a gesture of peace and reconciliation at the end of a civil war or an internal armed conflict’ but ‘cannot be granted in respect of international crimes, such as genocide, crimes against humanity or other serious violations of international humanitarian law’ (UN SecretaryGeneral Report, para. 22). For further discussion on the UN disclaimer to the blanket amnesty clause see William A. Schabas, Amnesty, the Sierra Leone Truth and Reconciliation Commission and the Special Court for Sierra Leone, 11 U.C. Davis J. Int’l L. Pol’y 1, 2004, pp. 148 – 149. 1023 Cf. Daniel J. 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, 27 Brook. J. Int’l L. 1, 2001, p. 359.

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nesties for international crimes perfectly clear, it would be misleading to conclude that the Special Court’s jurisdiction rests solely on this reservation. The UN’s position was further clearly stated in the Secretary-General’s Report on the establishment of the Special Court. Therein the Secretary-General points out that ‘amnesty is considered to be an accepted legal concept and a gesture of peace and reconciliation at the end of a civil war or an internal armed conflict’ but ‘cannot be granted in respect of international crimes, such as genocide, crimes against humanity or other serious violations of international humanitarian law’.1024 Likewise, the UNSC Resolution approving the establishment of the Special Court in its preamble states that: “[R]ecalling that the Special Representative of the Secretary-General appended to his signature of the Lomé Agreement a statement that the United Nations holds the understanding that the amnesty provisions of the Agreement shall not apply to international crimes of genocide, crimes against humanity, war crimes and other serious violations of international humanitarian law […].”1025

However, the Case Law of the Inter-American Court of Human Rights tends to be suggestive of the fact that there can be no amnesties for human rights violations. The rationale for this interpretation is that amnesties violate the rights of victims.1026 In the Barrios Altos case, the Court held that: “[T]his Court considers that all amnesty provisions, provisions on prescription and the establishment of measures designed to eliminate responsibility are inadmissible, because they are intended to prevent the investigation and punishment of those responsible for serious human rights violations such as torture, extrajudicial, summary or arbitrary execution and forced disappearance, all of them prohibited because they violate non-derogable rights recognized by international human rights law.”1027

Nevertheless, it would be inaccurate to conclude that there exists a common practice by all states to this effect. This jurisprudence is reflective of a trend towards disregarding amnesties for all crimes. Therefore, amnesties are not prohibited per se, but cannot be regarded as applicable when granted for international crimes. Having said that, it should be noted that the indicia laid out above ascertain that there is a trend, if not already established practice, towards the non-recognition of amnesties for international crimes. This is also reflective in soft law. Cf. Secretary-General Report, 4 October 2000, supra note 15, para. 22. Cf. UN Security Council Resolution on the Situation in Sierra Leone S / RES / 1315 (2000), 14 August 2000. 1026 Cf. Dov Jacobs, Puzzling Over Amnesties: Defragmenting the Debate for International Criminal Tribunals, forthcoming, p. 6. 1027 Inter-American Court of Human Rights, Case of Barrios Altos v. Peru, Judgment, 14 March 2001, para. 41, available at: http: //www.transcrim.org/05 %20Inter-American%20 Court %20of %20Human%20Rights%20- %20Barrios %20Altos. 1024 1025

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5. Soft Law Documents Similar to the above discussed international legal instruments, recent soft law documents support the view that amnesties for international crimes are incompatible with international law. For example, Principle 1.8 of the Chicago Principles on Post-Conflict Justice provides that: “[S]tates shall not grant amnesty to absolve individuals of responsibility for genocide, serious war crimes, or crimes against humanity.”1028

Likewise, Principle 7 of the Princeton Principles on Universal Jurisdiction provides: “[A]mnesties are generally inconsistent with the obligation of States to provide accountability for serious crimes under international law, including war crimes, crimes against humanity and genocide.”1029

Further, Principle 3 of the Cairo – Arusha Principles on Universal Jurisdiction provides that: “[S]tates shall adopt measures, including legislative and administrative, that will ensure that their national courts can exercise universal jurisdiction over gross human rights offences, including, but not limited to, those contained in the Rome Statute of the International Criminal Court.”1030

However, despite these rather clear indicia of the existence of a trend on the part of positive international law and opinio juris advocating against the recognition of amnesties for international crimes, it should be noted that some States – through their practice – appear to favor so-called practical political solutions. This is nevertheless not reflective of general state practice. With regards to the jurisprudence of the Special Court, it should be noted on the outset that Article 10 of the SCSL Statute expressly states that: “[A]n amnesty granted to any person falling within the jurisdiction of the Special Court in respect of [crimes against humanity, violations of Common Article 3 and Additional Protocol II and other serious violations international humanitarian law] shall not be a bar to prosecution.”1031

The Special Court was seised of a preliminary motion in which the accused Kallon and Kamara challenged the jurisdiction of the Special Court inter alia on the 1028 Cf. The Chicago Principles on Post-Conflict Justice, International Human Rights Law Institute, Chicago, 2008, p. 41. 1029 Cf. Princeton Principles on Universal Jurisdiction, 2001, available at: http: //www1. umn.edu/humanrts/instree/princeton.html. 1030 Cf. Cairo – Arusha Principles on Universal Jurisdiction in Respect of Gross Human Rights Offences: An African Perspective, 2001 / 2002. Its preamble states that its starting point is the awareness of existing law and is aimed at assisting governments, in Africa and around the world in exercising their powers and obligations in the pursue for international justice. 1031 Article 10, SCSL Statute.

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grounds that not all amnesties are unlawful in international law and that the Lomé Peace Agreement, as an international law treaty was binding on the Government of Sierra Leone.1032 The accused Kallon and Kamara further averred that the Special Court could not exercise jurisdiction over crimes committed prior to July 1999 i.e. the date of the Lomé Peace Agreement.1033 According to the accused the Lomé Peace Agreement provided that the Government of Sierra Leone would not take any official or judicial action against the members of the RUF and any other participants in the conflict.1034 This, in their view, included entering into an agreement to establish an international court. This paved the way for the Special Court to be the first international criminal court to pass a ruling on amnesties. The importance of this Special Court jurisprudence is twofold: first it addressed the issue of whether insurgents are recognized as subjects of international law with a treaty-making capacity and second it examined the status or rather limits of amnesties in international law. However, before looking at these two important aspects of the Special Court jurisprudence, the following analysis will first discuss the Lomé Amnesty Decision in general. The Special Court Appeals Chamber, seised pursuant to Rule 72(E) of this Motion, opined that the Lomé Peace Agreement did not constitute an international treaty because it only had a binding effect on the Government of Sierra Leone and the RUF.1035 The Appeals Chamber found that “an international agreement in the nature of a treaty must create rights and obligations regulated by international law so that a breach of its terms will be a breach determined under international law which will also provide principle means of enforcement. The Lomé Agreement created neither rights nor obligations capable of being regulated by international 1032 SCSL, The Prosecutor v. Morris Kallon and Brima Buzzy Kamara, Case No. SCSL2004-15-AR72(E) and SCSL-2004-16-AR72(E), Decision on Challenge to Jurisdiction: Lomé Accord Amnesty, 13 March 2004, para. 24. 1033 Ibid. 1034 See Lomé Peace Agreement, supra note 77, which provides in its relevant part (Art. IX) that: “Pardon and Amnesty 1. In order to bring lasting peace to Sierra Leone, the Government of Sierra Leone shall take appropriate legal steps to grant Corporal Foday Sankoh absolute and free pardon. 2. After the signing of the [Lomé] Agreement, the Government of Sierra Leone shall also grant absolute and free pardon and reprieve to all combatants and collaborators in respect of anything done by them in pursuit of their objectives, up to the signing of the [Lomé] Agreement. 3. To consolidate the peace and promote the cause of national reconciliation, the Government of Sierra Leone shall ensure that no official or judicial action is taken against any member of the RUF / SL, ex-AFRC, ex-SLA or CDF in respect of anything done by them in pursuit of their objectives as members of those organizations, since March 1991, up to the time of the signing of the present agreement.” (Emphasis added) 1035 SCSL, The Prosecutor v. Morris Kallon and Brima Buzzy Kamara, Case No. SCSL2004-15-AR72(E) and SCSL-2004-16-AR72(E), Decision on Challenge to Jurisdiction: Lomé Accord Amnesty, 13 March 2004, para. 42.

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law”.1036 This finding calls for an immediate question i.e. what is an international treaty? An international treaty is an agreement between two or more states or international organizations that is intended to be legally binding and is governed by international law.1037 It should be noted that, following the principle of pacta sunt servanda, “[e]very treaty in force is binding upon the parties to it and must be performed by them in good faith”.1038 Hence, states have an obligation to respect and apply their domestic laws, treaties to which they are parties and customary international law.1039 However, the only scenario where a state non-Party to an agreement containing an amnesty provision could be in the case where the UNSC brokered the deal in order to maintain international peace and security. In which case, the non-recognition of the amnesty by the state would lead to it acting in contravention of its international obligations under the UN Charter.1040 Having said this, as regards the Special Court, its jurisprudence on amnesty is fundamental and far reaching. This is so because pursuant to the Sierra Leonean Constitution, an international treaty governed by the Vienna Convention on the Law of Treaties, prevails over any inconsistent and contradictory norms of domestic law. The result being that had the Lomé Peace Agreement been regarded as an international treaty, the Sierra Leonean Government would have been obliged under international law to eradicate any inconsistencies between the Lomé Peace Agreement and Sierra Leone. Thus, the domestic courts would have been right in considering themselves bound by the Lomé Peace Agreement. Having found that the Lomé Peace Agreement was not an international treaty, the criticism that the Special Court failed to declare Article IX of the Lomé Peace Agreement to be illegal in the Sierra Leonean domestic legal system is flawed.1041 The Special Court would have been acting ultra vires since it was not empowered to make a finding whether a law, in casu, the Lomé Peace Agreement was illegal Ibid. Cf. Article 2(1)(a), Vienna Convention on the Law of Treaties 1969 (“VCLT”). 1038 Cf. Article 26, VCLT. 1039 Cf. Yasmin Naqvi, Amnesty for War Crimes: Defining the Limits of International Recognition, 85 International Review of the Red Cross 851, 2003, p. 589, with further reference to Ian Brownlie, “[…] the state must be independent to other state legal orders, and any interference by such legal orders, or by an international agency must be based on a title of international law.” Principles of Public International Law, 5th edn., OUP, Oxford, 1998, p. 72. 1040 Cf. Article 103 of the UN Charter which provides that “[i]n the event of a conflict between the obligatiuons of the members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.” See also Yasmin Naqvi, Amnesty for War Crimes: Defining the Limits of International Recognition, supra note 1039, p. 591. 1041 Cf. Simon Meisenberg, ‘The Lomé Amnesty Decision of the Special Court for Sierra Leone’, BOFAXE, No. 274E, 28 June 2004. 1036 1037

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within the Sierra Leonean legal system. Pursuant to Article 124 of the Sierra Leonean Constitution, the Supreme Court shall be the competent body to find a treaty in violation of Sierra Leonean law.1042 This uncertainty as the competency of the Special Court could be justified by its hybrid nature. Be that as it may, if the Lomé Peace Agreement was found to be contrary to international practice as such a violation by Sierra Leone of its international obligations, then the issue should not be that the Special Court failed to find the Lomé Peace Agreement illegal under Sierra Leonean Law but rather the failure of the Special Court to address the issue of Sierra Leone’s international obligations. With regards to the contribution of the Special Court’s Amnesty jurisprudence, particularly the issue relating to the treaty-making capacity of insurgents in international law, the Special Court was of the view that insurgents cannot be considered to automatically be vested with an international personality just because they are subject to international humanitarian law.1043 While it is clear that rebel groups are bound by international humanitarian law, their status hereunder is still the subject of discussion. Although the wording of Common Article 3 recognizes the existence of “Parties to the conflict” without precising whether these could only be States, it further stipulates that “[t]he application of the preceding provisions shall not affect the legal status of the Parties to the conflict”.1044 Hence, although the provisions of international humanitarian law are binding on insurgents, this could be justified by the fact that international humanitarian law is aimed at the protection of humanity and does not in any way accord to the insurgents a particular legal status of being subjects of international law. A finding to the contrary on the part of the Special Court would certainly have been contrary to current state practice of not recognizing rebels as having an international personality. It should be recalled that States do not want any interference in the way they run their internal affairs. This rather strong feeling or need for sovereignty seems to be gradually giving way to a greater interventionist role of the international community. The recent developments in Libya are proof thereof. The UN Security Council on 17 March 2011, authorized: “[M]ember States, acting nationally or through regional organizations or arrangements, to take all necessary measures to protect civilians under threat of attack in the country, including Benghazi, while excluding a foreign occupation force of any form on any part of Libyan territory – requesting them to immediately inform the Secretary-General of such measures.”1045 1042 Cf. Article 124(1)(b) of the National Constitution of Sierra Leone, 1991 (Act No. 6 of 1991), reprinted in Charles Jalloh, Consolidated Legal Texts for the Special Court for Sierra Leone, supra note 134, pp. 240 et seq. 1043 SCSL, The Prosecutor v. Morris Kallon and Brima Buzzy Kamara, Case No. SCSL2004-15-AR72(E) and SCSL-2004-16-AR72(E), Decision on Challenge to Jurisdiction: Lomé Accord Amnesty, 13 March 2004, para. 45. 1044 Cf. Lindsay Moir, The Law of Internal Armed Conflict, Cambridge University Press, Cambridge, 2002, pp. 63 et seq.

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Turning to the second contribution i.e. the limits of amnesties in international law, the Special Court based its analysis on the principle of universal jurisdiction. The Appeals Chamber held that: “[W]here jurisdiction is universal, a State cannot deprive another State of its jurisdiction to prosecute the offender by the grant of amnesty. It is for this reason unrealistic to regard as universally effective the grant of amnesty by a State in regard to grave international crimes in which there exists universal jurisdiction. A State cannot bring into oblivion and forgetfulness a crime, such as a crime against international law, which other States are entitled to keep alive and remember.”1046

In relying on the jurisprudence of the Hostage Case of the Military Tribunal at Nuremberg1047 and the Eichmann case,1048 the Appeals Chamber recognized that the principle of universality would apply to the international crimes listed in Articles 2 to 4 of its Statute.1049 The Special Court in rejecting the Lomé amnesty held that a rule had emerged under customary international law that ‘nullifies amnesties given to persons accused of bearing great responsibility for serious breaches of international law’.1050 The Special Court stated that “the amnesty granted by Sierra Leone cannot cover crimes under international law that are the subject of universal jurisdiction [reasons being that] the obligation to protect human dignity is a peremptory norm and has assumed the nature of obligation erga omnes”.1051 This reasoning of the Special Court is similar to Bassiouni’s view that “the implications of jus cogens are those of a duty and not of optional rights; otherwise, jus cogens would not constitute a peremptory norm of international law”.1052

1045 Cf. UN Security Council Resolution 1973, Doc. S / RES / 1973, adopted on 17 March 2011, available at: http: //www.un.org/News/Press/docs/2011/sc10200.doc.htm (emphasis added). 1046 Ibid., para. 67. 1047 US Military Tribunal at Nuremberg, re List et al., Judgment, 29 July 1948, printed in Trials of War Criminals Before the Nuremberg Military Tribunals Under Control Council Law No. 10, VIII, p. 1242. 1048 District Court of Jerusalem, Attorney-General of the Government of Israel v. Eichman (1961), 36 ILR 5, p. 12. 1049 SCSL, The Prosecutor v. Morris Kallon and Brima Buzzy Kamara, Case No. SCSL2004-15-AR72(E) and SCSL-2004-16-AR72(E), Decision on Challenge to Jurisdiction: Lomé Accord Amnesty, 13 March 2004, paras. 68 and 70. For a further analysis of the Special Court’s Decision re. Lomé Peace Agreement, see Simon Meisenberg, Legality of Amnesties in International Humanitarian Law, The Lomé Amnesty Decision of the Special Court for Sierra Leone, in 86 International Review of the Red Cross 856, 2004, pp. 837 – 851. 1050 SCSL, The Prosecutor v. Kondewa, Appeals Chamber Decision on Lack of Jurisdiction / Abuse of Process, 25 May 2004, para. 57; See also SCSL, The Prosecutor v. Morris Kallon and Brima Buzzy Kamara, Case No. SCSL-2004-15-AR72(E) and SCSL-2004-16-AR72 (E), Decision on Challenge to Jurisdiction: Lomé Accord Amnesty, 13 March 2004. 1051 SCSL, The Prosecutor v. Morris Kallon and Brima Buzzy Kamara, Case No. SCSL2004-15-AR72(E) and SCSL-2004-16-AR72(E), Decision on Challenge to Jurisdiction: Lomé Accord Amnesty, 13 March 2004, para. 71.

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Thus, the peremptory character of jus cogens crimes is what is being relied upon as proof that states have an obligation to prosecute persons who commit these crimes. Hence, as seen above, the obligation to prosecute international crimes can be derived from the numerous international legal instruments that exists and that have been signed by very many States. This in turn, is what must have pushed the Special Court to find that a rule had emerged under customary international law that ‘nullifies amnesties given to persons accused of […] serious breaches of international law’.1053 The Special Court approach to amnesty is thus in line with state practice as seen by their adherence to several treaties that oblige states to prosecute crimes of a serious nature. Bearing in mind the above analysis, the author is of the view that this state practice applies to all amnesties and is not limited to those granted to those who bear the greatest responsibility. As Cassese phrases it – in reference to Article 10 SCSL Statute – the jurisprudence of the Special Court on amnesty confirms and strengthens expressis verbis the legal effect of the relevant peremptory rules of international law. If amnesty does not apply with regard to the crime of torture, then a fortiori, it should not apply to crimes of a similar gravity. As Werle stated “[D]ecisions of international courts and international legal doctrine can be used not as sources of law, but as subsidiary means for determining the law.”1054 In addition, bearing in mind the fact that international law recognizes the jurisprudence of international tribunals as being persuasive in nature, the jurisprudence of the Special Court on amnesty can be viewed as a vital contribution to international humanitarian law.

II. Jurisprudence on Forced Marriage 1. General Remarks As mentioned above, the Special Court’s Appeals Chamber jurisprudence on forced marriage is historical since it marked the first – and till date only – time that 1052 Cf. Cherif Bassiouni, International Crimes: Jus Cogens and Obligatio Erga Omnes, supra note 996, p. 266. 1053 SCSL, The Prosecutor v. Kondewa, Appeals Chamber Decision on Lack of Jurisdiction / Abuse of Process, 25 May 2004, para. 57; see also SCSL, The Prosecutor v. Morris Kallon and Brima Buzzy Kamara, Case No. SCSL-2004-15-AR72(E) and SCSL-2004-16-AR72 (E), Decision on Challenge to Jurisdiction: Lomé Accord Amnesty, 13 March 2004. The Appeals Chamber stated that: “[e]ven if the opinion is held that Sierra Leone may not have breached customary law in granting an amnesty, this court is entitled in the exercise of its discretionary power, to attribute little or no weight to the grant of such amnesty which is contrary to the direction in which customary international law is developing and which is contrary to the obligations in certain treaties and conventions the purpose of which is to protect humanity” (para. 84). 1054 Cf. Gerhard Werle, Principles of International Criminal Law, supra note 294, mn. 136.

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an international criminal court recognized this act as a separate crime under international criminal law. This is undoubtedly a development from the Kunarac case at the ICTY, where the Trial Chamber entered a conviction for enslavement as a crime against humanity involving rape, treatment of girls as private property and forced performance of household chores.1055 It was clearly the intention of the Special Court to ‘enrich the jurisprudence of international criminal law’1056 and follow a trend in international criminal justice of prosecuting gender-based crimes.1057 The following analysis looks at the issue of creating new law and the necessity in this case as well as the precedential value of the Special Court’s jurisprudence. Before proceeding with this analysis, we shall first define the key words in order to better comprehend the analysis. These key words are ‘force’ and ‘marriage’. Although it might appear rather crystal clear to some readers what ‘force’ and ‘marriage’ mean, I consider it necessary to define these words in order to have the mind clearly set on what I will be addressing herebelow.

2. The Concept of Forced Marriage The word ‘forced marriage’ lays the ground basis for something not right in itself i.e. ‘force’ and ‘marriage’ are not compatible. Oxford Dictionary defines ‘force’ as coercion backed by the use or threat of violence and marriage as the formal union of a man and a woman, typically as recognised by law, by which they become husband and wife.1058 The UK Forced Marriage (Civil Protection) Act provides in its paragraph 63A that “force includes coerce by threats or other psychological means”.1059 In Hyde v. Hyde and Woodmansee, marriage was defined by Sir James Wilde (later Lord Penzance) as “[t]he voluntary union for life of one man and one woman, to the exclusion of all others”.1060 Marriage is viewed as the foundation of the family, which is the natural and fundamental group unit of society and is therefore entitled to protection by the society itself and the State.1061 Therefore without

1055 ICTY, Prosecutor v. Kunarac et al., Case No. IT-96-23-T & IT-96-23 / 1-T, Judgment, 22 February 2001, paras. 542, 543, 728. See also Patrick Matthew Hassan-Morlai. ‘Evidence in International Criminal Trials: Lessons and Contributions from the Special Court for Sierra Leone’, African Journal of Legal Studies, Vol. 3, Number 1, November 2009, Available at: http: //works.bepress.com/patrick_hassan_morlai/1. 1056 SCSL, Brima, Kamara, Kanu Appeals Judgment, para. 181. 1057 See also ICC, The Prosecutor v. Jean-Pierre Bemba Gombo, Case No. ICC-01 / 05-01 / 08, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, 15 June 2009, paras. 56 et seq. 1058 Cf. Judy Pearsall, The Concise Oxford Dictionary, 10th edn.OUP, USA, 1999, pp. 553 and 874 respectively. 1059 UK Forced Marriage (Civil Protection) Act, 2007, Part 4A, paragraph 63A(6). 1060 Lord Penzance’s Statement (1866), LR 1 P&D 130 (emphasis added). See Sebastian Poulter, The Definition of Marriage in English Law, in 42 Modern Law Review 4, 1979, pp. 369 – 488.

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any further analysis forced marriage is prima facie illegal, as can be deduced from the definition of marriage in several domestic jurisdictions, as would be discussed below. Although, it is as well clear that there exists certain cultural rituals which do not necessarily require the spouses to yield their consent, a discussion on the legality of such cultural rituals is beyond the scope of this research. Marriage is based on the consent of the spouses and in the absence thereof, one cannot consider there to be an act of marriage. Justice Doherty perfectly recaps the context of forced marriage as follows: “[I]nternational treaties and domestic law provide that a marriage is a relationship founded on the mutual consent of both spouses. In forced marriage the consent of the victim is absent. In the absence of such consent, the victim is forced into a relationship of a conjugal nature with the perpetrator thereby subsuming the victim’s will and undermining the victim’s exercise of their rights to self determination.”1062

We shall dwell below in further detail with the element of consent in marriages. Forced marriage consists of words or other conduct intended to confer a status of marriage by force or threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power against the victim, or by taking advantage of a coercive environment, with the intention of conferring the status of marriage.1063 It is a complex crime since it consists of a multitude of acts. It is not limited to the singe (physical) act of forcing someone to take a vow of marriage or declaring them as a ‘spouse’, rather, it includes some or all of the following: rape, torture, enslavement, sexual slavery and forced pregnancy.1064 One of the features of the ten-year civil war in Sierra Leone was the fact that thousands of women and girls were systematically abducted from their homes and communities and forced to serve as conjugal partners to their captors.1065 These abductions were carried out with extreme violence,1066 and the victims were forced to perform a variety of conjugal duties such as regular sexual intercourse, forced domestic labor including cleaning and cooking for their so-called “husbands”, bearing and raising children of the “marriage”.1067 The Trial Chamber pointed out that the Cf. ICCPR, Article 23(3); UDHR, Article 16. SCSL, Brima, Kamara, Kanu Trial Judgment, paras. 1157 and 1161. See also Partly Dissenting Opinion of Judge Doherty, para. 51. 1063 SCSL, The Prosecutor v. Alex Tamba Brima, Brima Bazzy Kamara and Santigie Borbor Kanu, Case No. SCSL-04-16-T, Prosecution Final Brief, paras. 1009 – 1012. 1064 Cf. Monika Satya Kalra, Forced Marriage: Rwanda’s Secret Revealed, 7 U.C. Davis J. Int’l L. Pol’y, 2001, p. 205. 1065 SCSL, Brima, Kamara, Kanu Trial Judgment, paras. 711, 1079, 1084, 1088, 1103, 1108, 1121, 1130, 1165. 1066 According to the AFRC Trial Judgment, some were abducted moments after they had witnessed the execution of their parents (ibid., paras. 1078, 1088). 1067 SCSL, Brima, Kamara, Kanu Trial Judgment, paras. 1080, 1081, 1130, 1165. 1061 1062

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rebel “husband” was expected to provide food, clothing and protection to his “wife,” including protection from rape by other men, which is something he did not do when the victim was solely for sexual purposes.1068 The women in turn were attributed certain rights such as distributing the looted goods and control the children abducted by their ‘husband’s forces.1069 The role of a “bush wife” was perfectly explained by a Prosecution Expert Witness as follows: “Bush wives’ were expected to carry out all the functions of a wife and more. A ‘bush wife’ carried her husband’s possessions on her head and trekked across the countryside with him; she was expected to gratify her ‘husband’s’ sexual wishes whenever he so desired without question; she cooked for him when food was made available, did his laundry and generally protected his possessions in his absence; she was expected to show undying loyalty to her husband for his protection and reward him with ‘love and affection’; she was not expected to attempt to escape as this was deemed disloyal. Punishment for disloyalty was always severe and so, women were led to believe, in most cases would be met with death.”1070 The Special Court’s Appeals Chamber in the AFRC case defined forced marriage as: “[the] compelling [of] a person by force or threat of force, through the words or conduct of the perpetrator or those associated with him, into a forced conjugal association with a another (sic) person resulting in great suffering, or serious physical or mental injury on the part of the victim.”1071

In the same vein, the UN Secretary-General described forced marriage as consisting of the lack of the free and valid consent of at least one of the parties.1072 The jurisprudence of the Appeals Chamber reveals that gender-based crimes have several components both sexual and non-sexual in nature. The former constitutes of rape and the latter could be domestic slavery, forced childbearing and forced child-rearing as well as cooking for the so-called husbands.1073 Therefore, establishing the

1068 Ibid., paras. 1157, 1161. See also Partly Dissenting Opinion of Judge Doherty, paras. 48, 49. 1069 Teresa Doherty, The Application of Human Rights Treaties in the Development of Domestic and International Law: A Personal Perspective, 22 LJIL 4, 2009, p. 756. 1070 SCSL, Brima, Kamara, Kanu Appeal Judgment, para. 34. According to the Separate Concurring Opinion of Justice Julia Sebutinde, the Prosecution Expert Witness Mrs Bangura had as primary sources of information “in depth interviews of over 100 former victims of ‘forced marriage’ and commonly called ‘bush wives’ from locations mentioned in the Indictment as crime bases, including the Districts of Kailahun, Kenema, Kono, and Freetown; and interviews of ex-combatants, parents of ‘bush wives’ as well as local traditional and religious leaders” (para. 11, footnote 3468). 1071 SCSL, Brima, Kamara, Kanu Appeal Judgment, para. 195. 1072 Cf. United Nations, In-depth study on all forms of violence against women: report of the Secretary-General, Report of the Secretary General, 6 July 2006, A / 61 / 122 / Add.1, available at: http: //www.unhcr.org/refworld/docid/484e58702.html. 1073 Cf. Valerie Oosterveld, Special Court for Sierra Leone, International Criminal Law, Forced Marriage, Recruitment and Use of Child Soldiers;, 103 Am. J. Int’l L. 1, 2009, p. 108.

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fact that forced marriage – unlike sexual slavery – is not exclusively a sexual crime.1074 Cognisant of the fact that in order for a crime to be subsumed under the category of ‘other inhumane acts’, it needed to be of comparable gravity to the listed crimes against humanity, i.e. it must cause serious mental or physical suffering or amount to an attack on human dignity,1075 the Special Court’s Appeals Chamber addressed this issue. It held that: “[taking] into account the nature of the perpetrators’ conduct especially the atmosphere of violence in which victims were abducted and the vulnerability of the women and girls especially those of a very young age […], [t]he Appeals Chamber is firmly of the view that acts of forced marriage were of similar gravity to several enumerated crimes against humanity including enslavement, imprisonment, torture, rape, sexual slavery and sexual violence.”1076

This jurisprudence of the Special Court’s Appeals Chamber contributes to international humanitarian law and could be applied at the ICC in its current and future cases that also relate to forced marriage.1077 For example the on-going case Prosecutor v. Katanga and Ngudjolo Chui relates inter alia to incidents of forced marriage.1078 The AFRC Trial Chamber initially denied recognizing forced marriage as a separate crime under ‘other inhumane acts’ on the grounds that it was a sexual crime and better subsumed under ‘any other form of sexual violence’.1079 Further, it interpreted the use of the word ‘wife’ by the perpetrator as a mere demonstration of ownership and not as intended to have the legal implications a regular marriage would have.1080 1074 SCSL, Prosecutor v. Alex Tamba Brima, Brima Bazzy Kamara and Santigie Borbor Kanu, Case No. SCSL-04-16-A, Judgment, 22 February 2008, para. 195. 1075 ICTR, The Prosecutor v. Kayishema and Ruzindana, Case No. ICTR-95-1-T, Trial Judgment, 21 May 1999, paras. 149 – 151; The Prosecutor v. Kayishema and Ruzindana, Case No. ICTR-95-1-A, Appeal Judgment, 1 June 2001, paras. 91 – 92. 1076 Ibid., paras. 199 – 200. 1077 Cf. Micaela Frulli, ‘Advancing International Criminal Law’, 6 JICJ 5, 2008, p. 1034. 1078 ICC, The Prosecutor v. v. Katanga and Ngudjolo Chui, Case No. ICC-01 / 04-01 / 07, Decision on the Confirmation of Charges, 30 September 2008, paras. 348, 434 – 435. 1079 SCSL, Brima, Kamara, Kanu Trial Judgment, paras. 711 – 713. The Trial Chamber wrongfuly concluded that the residual category of ‘other inhumane acts’ would not include crimes of a sexual nature: “[T]he offence of ‘other inhumane acts’ pursuant to Article 2(i) of the Statute is a residual clause which covers a broad range of underlying acts not explicitly enumerated in Article 2(a) through (h) of the Statute. In light of the exhaustive category of sexual crimes particularized in Article 2(g) of the Statute, the offence of ‘other inhumane acts’, even though residual, must logically be restrictively interpreted as applying only to acts of a non-sexual nature amounting to an affront to human dignity. Listing the underlying acts exhaustively would only create undesirable opportunities to evade the letter of the prohibition.” (para. 697) 1080 SCSL, Brima, Kamara, Kanu Trial Judgment, para. 711.

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Before looking further at the jurisprudence of the Special Court, an interesting point here is that the Judges of the Special Court have created a new crime in international humanitarian law. Thus, the question to be posed is what is the scope of applicability of this new crime? If this crime is only a particularity of the conflict in Sierra Leone then it would be of limited precedential value. However, if it exists in other conflicts then its creation by the Special Court could be lauded. An analysis of the crime of ‘forced marriage’ establishes that it exist in several armed conflicts around the world and is neither limited to Sierra Leone in particular nor to Africa in general. Aspects of forced marriage have been revealed in conflicts in Sierra Leone, Cambodia, Rwanda and Uganda.1081 As mentioned above, forced marriage encompasses several other acts that are already recognized and punishable as crimes against humanity (rape, torture, enslavement, sexual slavery and forced pregnancy, some of which are regarded to amount to jus cogens violations).1082 Hence, the question to be posed here is what was the necessity to create a new category of crime? Admittedly international criminal courts apply both the common law and civil law and former recognizes the right for judges to interpret the law and thereby leave their legal imprint in the system. This is justified by the fact that in common law countries the judicial role is creative and not passive.1083 The practice of judicial precedence enables the judges to establish new principles which would be later applied as laws. Hence the Judges at the Special Court in creating this new crime may have believed that they were acting fully within their legal parameters. However, this practice cannot be embraced without some reservations. Contrary to the situation at the domestic level where the Judges are acting under some guidance / protection, which is the constitution of the underlying state, in the international arena, there is no such constitution and the Judges appear to be acting without any guidance. Consequently, the practice of creating new law ought to be exercised with great caution. An in-depth discussion on the role of the judiciary in common law countries is however beyond the scope of this work. Having said that, it should noted that the crime of ‘forced marriage’ is more than just a simple summing up of already existing international humanitarian law crimes. 1081 Cf. Neha Jain, Forced Marriage as a Crime against Humanity, 6 JICJ 5, 2008, pp. 1013 – 1032. For discussion on the crime of forced marriage in Cambodia during the Khmer Rouge regime (1975 – 1979), see Francois Ponchaud, Social Change in the Vortex of Revolution, in: K. Jackson (ed.), Rendez-vous with Death – Democratic Kampuchea 1975 – 1978, Vol. II, Princeton University Press, Princeton, N.J. Guildford, 1992, pp. 28 – 29. 1082 Cf. Michael P. Scharf / Suzanne Mattler, Forced Marriage, Exploring the Viability of the Special Court for Sierra Leone’s New Crime Against Humanity, Case Research Paper Series in Legal Studies, Working Paper 05 – 35, October 2005, p. 14. 1083 Federal Court of Malaysia, PP v. Koh Wah Kuan, Criminal Appeal No. 05-46-2007 (W), 23 October 2007, para. 39. Justice Richard Malanjum CJ in his dissenting Judgment outlined the various ways in which judges contribute to the development of the legal system such as through their creativity.

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It is inescapable rape, sexual slavery, torture, forced pregnancy, and enslavement on a continuing basis crowned with the misuse of the internationally recognized institution of marriage.1084 The Special Court’s Appeals Chamber found that force marriage is a compelled conjugal association resulting in great suffering or injury which is not per se the same as the crime of sexual violence.1085 This finding relied a great deal on the testimony of Zainab Bangura, (at the time) Sierra Leone’s Foreign Affairs Minister, a prominent human rights activist, who testified that a victim of forced marriage suffered from “psychological manipulations of her feelings [and] was expected to show undying loyalty to her husband for his protection and reward him with love and affection” 1086 This was dealt with as an “other inhumane act”. In this light, the AFRC Trial Chamber, rightly, pointed out that ‘other inhumane acts’ is a residual category, the purpose of which is to cover all crimes not specifically enumerated as crimes against humanity.1087 The Trial Chamber was satisfied that all the elements of the crime of sexual slavery were present in the ‘forced marriages’ crimes in Sierra Leone and thus did not see the need to create a new crime.1088 It relied on the elements of the crime of sexual slavery as outlined in the ICC Elements of Crimes1089 namely: (1) the perpetrator exercised any or all of the powers attaching to the right of ownership over one or more persons, or by imposing on them a similar deprivation of liberty; (2) the perpetrator caused such person or persons to engage in one or more acts of a sexual nature; and (3) the perpetrator committed such conduct intending to engage in the act of sexual slavery or in the reasonable knowledge that it was likely to occur. While it is accurate that all these elements are found in the crime of forced marriage, the Trial Chamber failed to see that there existed more elements in the crime of forced marriage that were not covered by the above listed elements. These other elements include a forced conjugal association resulting in great physical and mental suffering; and a relationship of exclusivity i.e. the belonging of the victim to the so-called owner with potential sanctions if the victim were to fail to respect the arrangement.1090 More so, the victims were unable to return to their communities since they were associated with the rebels. They were regarded as being ‘tainted with rebel blood’.1091

1084 Cf. Michael p. Scharf / Suzanne Mattler, Forced Marriage, Exploring the Viability of the Special Court for Sierra Leone’s New Crime Against Humanity, Case Research Paper Series in Legal Studies, Working Paper 05 – 35, October 2005, p. 16. 1085 SCSL, Brima, Kamara, Kanu Appeal Judgment, para. 192. 1086 Ibid. Mrs Zainab Bangura is Sierra Leone’s current Minister of Health and Sanitation. 1087 SCSL, Brima, Kamara, Kanu Trial Judgment, para. 703. 1088 Ibid., para. 711. 1089 Ibid., para. 708 citing Article 7(1)(g)(2) ICC Elements of Crimes. 1090 SCSL, Brima, Kamara, Kanu Appeal Judgment, para. 195.

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Although this error of the Trial Chamber was recognized by the Appeals Chamber and corrected, the latter failed to go a step further in its strive to ‘enrich the jurisprudence of international criminal law’1092, by providing elements of the crime of forced marriage. The provision of the elements of this crime would have been a substantial contribution to the development of international humanitarian law and of great assistance to the ICC and any other international criminal tribunal that would be called upon to address this category of crime. Scharf and Mattler suggest the following elements of the crime of forced marriage: “1. The perpetrator attached the right of marriage to one or more persons without the individual’s consent by threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or persons or another person, or by taking advantage of a coercive environment or such person’s or persons’ incapacity to give genuine consent; 2. The perpetrator caused such person or persons to engage in one or more acts of a sexual nature, and / or forced domestic labor, child bearing, or rearing; 3. The perpetrator makes it so that the individual is unable to dissolve the marriage; 4. The conduct was committed as part of a widespread or systematic attack direct against a civilian population; and 5. The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population.”1093

As rightly submitted by Scharf and Mattler, the creation of this new category of crime is similar to the relatively recent recognition of sexual slavery as a crime against humanity in the ICC Statute.1094 Prior to the establishment of the ICC Statute, such conduct which now amounts to sexual slavery would have been prosecuted as other crimes against humanity (enslavement or enforced prostitution). However, the drafters of the ICC Statute recognized that sexual slavery was more than 1091 SCSL, The Prosecutor v. Alex Tamba Brima, Brima Bazzy Kamara and Santigie Borbor Kanu, Case No. SCSL-04-16-T, Trial Exhibit P32, Expert Report on the Phenomenon of Forced Marriage in the Context of the Conflict in Sierra Leone. 1092 SCSL, Brima, Kamara, Kanu Appeal Judgment, para. 181. 1093 Cf. Michael p. Scharf / Suzanne Mattler, Forced Marriage, Exploring the Viability of the Special Court for Sierra Leone’s New Crime Against Humanity, Case Research Paper Series in Legal Studies, Working Paper 05 – 35, October 2005, p. 21. 1094 Ibid., p. 16. See also ICC Statute, Articles 7(1)(g), 8(2)(xxii) and 8(2)(e)(vi). Prior to the Special Court jurisprudence, the only existing case law dealing with sexual slavery was a judgment delivered on 4 December 2001 by the Women’s International War Crimes Tribunal for the Trial of Japan’s Military Sexual Slavery. See The Prosecutors and the Peoples of the Asia-Pacific Region v. Hirohito Emperor Showa, Ando Rikichi, Hata Shunroku, Itagaki Seishiro, Kobayashi Seizo, Matsui Iwane, Umezu Yoshijiro, Terauchi Hisaichi, Tojo Hideki, Yamashita Tomoyuki and The Government of Japan, Case No. PT-2000-1-T, Judgment, 4 December 2001. The Tribunal composed by Judge Gabrielle Kirk McDonald (Presiding), Judge Carmen Argibay, Judge Christine Chinkin and Judge Willy Mutunga condemned the practice by the Japanese Army during WW II of having ‘Comfort Women’. The judgment is available at: http: //www.1.jca.apc.org/vaww-net-japan/english/womenstribunal2000/judgement.pdf.

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just the summing up of sexual slavery and rape, since neither of them fully engulfed the sufferings of the victims.1095

3. The Requirement of Consent It should be noted that Justice Doherty and Justice Julia Sebutinde appended a Dissenting Opinion and a Separate Concurring Opinion respectively to the Trial Chamber Judgment. Therein they both strive to distinguish between forced marriages as discussed thus far above and the customary practice of arranged marriages which exist for example in Sierra Leone and some other African countries. Justice Sebutinde in her Separate Concurring Opinion justifies the difference in that although forced marriages contain the same indicia as arranged marriages i.e. the performance of all kinds of domestic labor, and having sexual relations without their will, in the case of arranged marriages, there was the consent of the families.1096 Arranged families were characterized by the consent and participation of the parties as well as accompanied by rituals and religious ceremonies.1097 Justice Doherty in her Dissenting Opinion establishes this distinction on the lack of involvement of the families of the so-called ‘wife’ as well as the absence of any rituals and religious ceremonies.1098 Although dissenting opinions as well as concurring opinions obviously do not constitute part of the case law and hence are not binding, they however have a certain persuasive authority. Be that as it may, the above opinions strikingly rely on the lack of consent of the victim’s families.1099 In this respect, their opinions are flawed. While marriage indeed requires consent, it should be clear that this consent should emanate from the spouses themselves and not from their family. This is reflective in existing domestic legislations as well as international legal instruments such as the UDHR, the ICCPR, the Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages and the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa. Article 16(2) of the UDHR provides that: “[m]arriage shall be entered into only with the free and full consent of the intending spouses”.1100 In addition, Article 23 Ibid., p. 16. SCSL, Brima, Kamara, Kanu Trial Judgment, Separate Concurring Opinion of Justice Sebutinde, paras. 10 – 12. 1097 Ibid. 1098 SCSL, Brima, Kamara, Kanu Trial Judgment, Partly Dissenting Opinion of Justice Doherty, para. 16. 1099 For a similar flawed argument on the distinction between forced marriages and arranged marriages, see Michael p. Scharf / Suzanne Mattler, Forced Marriage, Exploring the Viability of the Special Court for Sierra Leone’s New Crime Against Humanity, Case Research Paper Series in Legal Studies, Working Paper 05-35, October 2005, pp. 10 – 12. 1100 Cf. UDHR, Article 16(2). 1095 1096

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of the ICCPR provides in its relevant part that: “[n]o marriage shall be entered into without the free and full consent of the intending spouses”.1101 Further, Article 1(1) of the Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages provides that: “[n]o marriage shall be legally entered into without the full and free consent of both parties, such consent to be expressed by them in person after due publicity and in the presence of the authority competent to solemnize the marriage and of witnesses, as prescribed by law”.1102 In the same light, Article 6 of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa provides in its relevant part that: “[n]o marriage shall take place without the free and full consent of both parties”.1103 In the same light, at the national level, the Italian Civil Code (Marriage) for example, provides that in the process of marriage there needs to be the express declaration of the spouses that they would like to take each other as husband and wife.1104 Further, a recent Report of the UN Secretary-General relating to forced marriage establishes that several countries have legislation which requires the free and full consent of the intending spouses in order for the marriage to be considered as valid.1105 It is therefore clearly established that the consent required for the act of marriage is that of the spouses and not their families. Without going into an in-depth discussion on the merits or demerits of the practice of arranged marriages, in the author’s view, the basis for the distinction between forced marriage and arranged marriages ought to be found elsewhere. This could be for example the stigma and thus psychological suffering resulting from the labeling as ‘wife’ as well as the fact that arranged marriages were not carried out as part of a widespread or systematic attack against a civilian population. Having said that, the jurisprudence of the Special Court on forced marriage can be viewed as a novelty in the field of international humanitarian law and praiseworthy for having contributed to the understanding of gender-based crimes. In the author’s view this does not only represent an important affirmation of legal recognition of women’s experiences during armed conflicts,1106 but also represents the Cf. ICCPR, Article 23(3). Cf. Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages, opened for signature and ratification by General Assembly resolution 1763 A (XVII) of 7 November 1962, entry into force: 9 December 1964, in accordance with article 6. 1103 Cf. Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (Article 6[a]), adopted by the 2nd Ordinary Session of the Assembly of the African Union, Maputo, 11 July 2003. 1104 Italian Civil Code (Marriage), Article 107. 1105 Cf. Report of the Secretary-General on Forced Marriage of the Girl Child, presented at the Commission on the Status of Women, Fifty-second Session, 25 February – 7 March 2008, UN Doc. E / CN.6 / 2008 / 4, 5 December 2007. Examples of such countries include Belgium, Canada, Colombia, the Czech Republic, Germany, Hungary, Portugal, the Russian Federation and the United Arab Emirates (p. 9). 1101 1102

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growing influence of civil societies in international criminal proceedings. Its contribution can be seen at the domestic level as well where legislation has been enacted to protect victims of forced marriage.1107 Further, the victims of forced marriage could now claim and hope for reparations. It should be recalled that the Special Court Ratification Act provides that: “[A]ny person who has been a victim within the jurisdiction of the Special Court, or persons claiming through him, may claim compensation in accordance with the Criminal Procedure Act 1965,1108 if the Special Court has found a person guilty of that crime”.1109 It is thus of vital importance to the victims of forced marriage that the Special Court has recognized this crime as such and found some accused guilty of the crime. However, because of its narrow focus on the situation in Sierra Leone, this jurisprudence of the Special Court relating to forced marriage in particular and gender-based crimes in general will need to be further developed when applied before other international criminal courts. This could be the case at the ICC in the Uganda Situation, where it is reported that soldiers of the LRA abduct women and give them to their commanders as ‘wives’.1110

III. Jurisprudence on Head of State Immunity Oxford Dictionary defines Immunity as exempt from an obligation or penalty.1111 There exist two forms of immunity: (1) state immunity, that is linked to certain state officials as a result of their status (immunity ratione personae) and (2) immunity that is attached to the acts of the state officials in the exercise of their functions (immunity ratione materiae).1112 The raison d’être for state immunity is to ensure that the representatives of States are able to exercise their functions fully and efficiently without any hindrance. This is based on the international law dogmatic principle of equality of states.1113 According to this principle, a state cannot claim to exercise its 1106 From The Taylor Trial to a Lasting Legacy: Putting the Special Court Model to the Test, supra note, 47, p. 49. 1107 See for example UK Forced Marriage (Civil Protection) Act, 2007, Part 4A. 1108 Section 57 of the Criminal Procedure Act, 1965, provides that “[t]he Court may order that the whole, or such portions as the Court thinks fit, of the expenses so paid be paid over to the prosecutor or to the accused or defendant, as the case may be” (printed in Charles Jalloh, Consolidated Legal Texts for the Special Court for Sierra Leone, supra note 134, pp. 431 et seq.). 1109 Cf. Special Court Agreement 2002, Ratification Act 2002, Supplement to the Sierra Leone Gazette Vol. XXXIII, No. 22, dated 25 April 2002 (Article 45). 1110 For more on the Uganda situation before the ICC see The Prosecutor v. Joseph Kony, Vincent Otti, Okot Odhiambo and Dominic Ongwen, Case No. ICC-02 / 04-01 / 05, Warrant of Arrest for Joseph Kony, Issued on 8 July 2005, as amended on 27 September 2005. 1111 Cf. Judy Pearsall, The Concise Oxford Dictionary, 10th edn., OUP, USA, 1999, p. 710. 1112 Cf. Dapo Akande and Sangeeta Shah, Immunities of State Officials, International Crimes and Foreign Domestic Courts, in 21 EJIL 4, 2010, pp. 815 et seq.

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jurisdiction over acts of state carried out by another state (par in parem non habet imperium).1114 Customary international law does not recognize the functions of individuals as a bar from their being held criminally responsible before international criminal tribunals. This position can be seen in the wording of numerous positive international law instruments such as the Charter of the International Military Tribunal in Nuremberg,1115 the Charter of the International Military Tribunal for the Far East,1116 the Genocide Convention,1117 the Principles of International Law Recognized in the Charter of the Nuremberg Tribunal and in the Judgment of the Tribunal (“Nuremberg Principles”),1118 the 1996 Draft Code of Crimes Against the Peace and Security of Mankind,1119 the ICTY Statute,1120 the ICTR Statute1121 and the ICC Statute.1122 It is clear that the official capacity of an individual does

Cf. Kai Ambos, Internationales Strafrecht, supra note 22, § 7, mn 106. Cf. Kai Ambos, Internationales Strafrecht, supra note 22, § 7, mn 106. 1115 Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, and Charter of the International Military Tribunal. London, 8 August 1945. Article 7 of this Charter provides that “[t]he official position of defendants, whether as Heads of State or responsible officials in Government Departments, shall not be considered as freeing them from responsibility or mitigating punishment”. 1116 International Military Tribunal fort the Far East, Special Proclamation by the Supreme Commander for the Allied Powers at Tokyo (“IMFTE Charter”). Article 6 of the IMTFE Charter dealing with the Responsibility of the Accused provides that “[n]either the official position, at any time, of an accused, nor the fact that an accused acted pursuant to order of his government or of a superior shall, of itself, be sufficient to free such accused from responsibility for any crime with which he is charged, but such circumstances may be considered in mitigation of punishment if the Tribunal determines that justice so requires”. 1117 Convention on the Prevention and Punishment of the Crime of Genocide, adopted by United Nations General Assembly Resolution 260(III) A, 9 December 1948, entered into force 12 January 1951. Art. IV of this Convention provides in its relevant part that “[p]ersons committing genocide or [conspiracy to commit genocide, direct and public incitement to commit genocide, attempt to commit genocide, and complicity in genocide] shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals”. 1118 Cf. Art. 3 of the Nuremberg Principles which provides that “[T]he fact that a person who committed an act which constitutes a crime under international law acted as Head of State or responsible Government official does not relieve him from responsibility under international law”. 1119 Art. 7 of the 1996 Draft Code of Crimes Against the Peace and Security of Mankind provides that “[t]he official position of an individual who commits a crime against the peace and security of mankind, even if he acted as head of State or Government, does not relieve him of criminal responsibility or mitigate punishment”, available in Yearbook of the International Law Commission 1996, Vol. II(2). 1120 Cf. Art. 7(2) ICTY Statute. It provides in its relevant part that “[t]he official position of any accused person, whether as head of State or Government or as a responsible Government official, shall not relieve such person of criminal responsibility nor mitigate punishment”. 1121 Cf. Art. 6(2) ICTR Statute which contains the same wording as Art. 7(2) ICTY Statute. It provides that “[t]he official position of any accused person, whether as head of State or Government or as a responsible Government official, shall not relieve such person of criminal responsibility nor mitigate punishment”. 1113 1114

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not exclude him from individual criminal responsibility before international criminal tribunals. The jurisprudence of the SCSL in this regard was the first jurisprudence of an ‘international criminal court’ (this term is used here without any legal implication and would be discussed further below) after the famous paragraph 61 of the Congo v. Belgium Decision (also known as the Yerodia case). In this case, the Democratic Republic of Congo (DRC) challenged the Kingdom of Belgium before the International Court of Justice (ICJ) for issuing an arrest warrant against Mr. Abdulaye Yerodia Ndombasi, the incumbent Minister for Foreign Affairs of the DRC at the time the arrest warrant was issued. Belgium in its Defence, averred that “immunities accorded to incumbent Ministers for Foreign Affairs can in no case protect them where they are suspected of having committed war crimes or crimes against humanity”.1123 The ICJ in an obiter dictum, in upholding that the Belgian arrest warrant was in conflict with customary international law stated that: “[a]n incumbent or former Minister for Foreign Affairs may be subject to criminal proceedings before certain international criminal courts, where they have jurisdiction. Examples include the International Criminal tribunal for the former Yugoslavia, and the International Criminal tribunal for Rwanda, established pursuant to Security Council resolutions under Chapter VII of the United Nations Charter, and the future International Criminal Court created by the 1998 Rome Convention. The latter’s Statute expressly provides in Article 27, paragraph 2, that [i]mmunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person.”1124

Regrettably, the ICJ in the Yerodia case did not go further to indicate how it envisaged distinguishing between international criminal courts, before which immunity could not be considered as a bar to criminal proceedings, and national courts, which were bound to recognize immunity as a bar to criminal proceedings. However, what could be retained from the Yerodia Judgment is the notion that determining that a judicial institution should be considered as an international criminal court has consequences on the potential immunity claims of accused before this judicial organ. The Appeals Chamber of the Special Court was seized with a motion submitted by the former President of Liberia Charles Taylor to quash the indictment and warrant of arrest pending against him on the ground that he is immune from any exercise of 1122 Article 27 of the ICC Statute provides that: “[t]his Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence.” 1123 Cf. ICJ, Reports of Judgments, Advisory Opinions and Orders, Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment of 14 February 2002, para. 56, http: // www.icj-cij.org / docket / files / 121 / 8126.pdf (emphasis added). 1124 Ibid., para. 61.

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jurisdiction of the Special Court.1125 The Special Court was thus afforded the possibility to further develop the ‘international court dictum’ in the Yerodia case.1126 Considering the fact that immunity could be seen as an exception to jurisdiction, it would be the right procedure to address the issue of jurisdiction before dwelling on any potential claims of immunity. The Special Court however, apparently presumed it had jurisdiction and went straight ahead to address the issue of whether it was to be considered as an international criminal court in the sense of paragraph 61 of the Congo v. Belgium Judgment. Nevertheless, the approach in this book would be to first address the jurisdiction issue (1.) before going on to look at the ”internationality requirement” (2.).

1. Jurisdictional Requirement As discussed above the Special Court shall […] have the power to prosecute persons who bear the greatest responsibility for serious violations of international humanitarian law and Sierra Leonean law committed in the territory of Sierra Leone since 30 November 1996, including those leaders who, in committing such crimes, have threatened the establishment of and implementation of the peace process in Sierra Leone.1127 While it is clear from the wording of this article that the Special Court has jurisdiction to prosecute “persons who bear the greatest responsibility” i.e. both nationals and non-nationals of Sierra Leone, it is also clear that these persons must have committed crimes on Sierra Leonean territory. Thus crimes committed in the neighboring Liberia however egregious they might be, do not fall under the Special Court’s jurisdiction and could not be the subject of proceedings before the latter. Based on the established principle of territoriality, all crimes committed on the territory of Sierra Leone could be prosecuted in Sierra Leone. The advantage of the principle of territoriality is that it does not in any way conflict with the international law principle of non-intervention.1128 Various legal systems recognize that a state 1125 See SCSL, The Prosecutor v. Charles Ghankay Taylor, Case No. SCSL-2003-01-I, Applicant’s Motion made under protest and without waiving of Immunity accorded to a Head of State Charles Ghankay Taylor requesting that the Trial Chamber do quash the said approved indictment of 7th March 2003 of Judge Bankole Thompson and that the aforesaid purported Warrant of Arrest and Order for Transfer and detention of the same date issued by Judge Bankole Thompson of the Special Court for Sierra Leone, and all other consequential and related ORDER(S) granted thereafter by either the said Judge Bankole Thompson OR Judge Pierre Boutet on 12th June 2003 against the person of the said President Charles Ghankay Taylor be declared null and void, invalid at their inception and that they be accordingly cancelled and / OR set aside as a matter of law, 23 July 2003. 1126 Cf. Claus Kress, Commentary on Decision on Immunity from Jurisdiction, in: Klip / Sluiter (eds.), Annotated Leading Cases of International Criminal Tribunals, The Special Court for Sierra Leone 2003 – 2004, Intersentia, Antwerp – Oxford, 2007, p. 202 – 208. 1127 Cf. Article 1 SCSL Statute. See supra (Chapter 3 IV. on Jurisdiction).

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has the inherent right to adjudicate crimes that have been committed on its territory regardless of the nationality of the potential perpetrator. 1129 For example section 3 of the German Penal Code (Strafgesetzbuch) dealing with offences committed on the territory of the Federal Republic of Germany provides that “[G]erman criminal law shall apply to acts committed on German territory” (Das deutsche Strafrecht gilt für Taten, die im Inland begangen werden).1130 The legislation in Sierra Leone applies the territoriality principle and in the case of Charles Taylor, a Liberian national, would be able to exercise jurisdiction regardless of whether the crimes were prepared in Liberia or elsewhere out of Sierra Leone and only executed on Sierra Leonean territory. However, the Special Court does not form part of the judiciary of Sierra Leone and cannot only on the basis of the Agreement between the Government of Sierra Leone and the UN exercise jurisdiction in Sierra Leone.1131 In order for this Agreement to be valid, it needed to be ratified by the Sierra Leonean Parliament.1132 Pursuant to Article 10 of the Special Court Ratification Act, Sierra Leone consented to the Special Court exercising jurisdiction on Sierra Leonean territory.1133 Thus although the Special Court was not part of the Sierra Leonean judiciary it had jurisdiction over the crimes stated in the SCSL Statute. Only after having established this fact, should the Special Court have gone on to deal with the legal nature of the Court thereby tackling the internationality requirement. Be that as it may the Appeals Chamber of the Special Court took the existence of jurisdiction for granted and moved on to the internationality requirement.

Cf. Kai Ambos, Internationales Strafrecht, supra note 22, § 3, mn. 24. Cf. Helmut Satzger, Internationales und Europäisches Strafrecht, 5th edn, Nomos Verlagsgesellschaft, Baden-Baden, 2011, § 4, mn. 5 – 6. 1130 Cf. Article 3, StGB, 38 Auflage 2002, Beck-Texte im dtv. 1131 Cf. Article 120 (4) of the Constitution of Sierra Leone (Act No. 6 of 1991), 1 October 1991. Also cf. Article 11 (2) of the Special Court Agreement Ratification Act (Act No. 9 of 2002) which supersedes Act. No. 7 of 2002 of the same title published in Government Notice 122 as supplement to the Sierra Leone Gazette No. 17 dated 4 April 2002. 1132 Article 40 (4) of the Constitution of Sierra Leone states that: “Notwithstanding any provisions of this Constitution or any other law to the contrary, the President shall, […] be responsible, in addition to the functions conferred upon him in the Constitution, for – […] (d) the execution of treaties, agreements or conventions in the name of Sierra Leone; […] provided that any treaty, agreement or convention executed by or under the authority of the President which relates to any matter within the legislative competence of Parliament, or which in any way alters the law of Sierra Leone […] shall be subject to ratification by Parliament.” 1133 Article 10 of the Special Court Agreement Ratification Act states that: “The Special Court shall exercise the jurisdiction and powers conferred upon it by the Agreement in the manner provided in the Rules of Procedure and Evidence of the International Criminal Tribunal for Rwanda in force at the time of the establishment of the Special Court as adapted for the purposes of the Special Court by the judges of the Special Court as a whole.” 1128 1129

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2. Internationality Requirement Considering that whether or not a judicial institution belongs to the genus of ‘certain international criminal courts’, as stipulated by the ICJ, has a considerable legal consequence vis-à-vis the immunity of incumbent and former heads of state and ministers, it is imperative to determine the nature of the Special Court. Schabas suggest that a starting point could have been to consider the nomenclature.1134 In relation to the Special Court, he points out that contrary to the ICC, the ICTY and the ICTR, the word ‘international’ does not appear in its name.1135 The Special Court’s Appeals Chamber did not attach much, if any, significance to this distinction, but rather, in addressing this issue, distinguished two identifiable basis of the challenge submitted by Charles Taylor: first whether the immunity of head of states excludes them from criminal prosecutions before the Special Court and second whether third states were required to cooperate with the Special Court.

a) Head of State Immunity as a Bar to Criminal Proceedings? The issue of Head of State immunity was addressed before the Special Court as a result of the indictment of Charles Taylor, the then President of Liberia.1136 Taylor, as the second Head of State, and the first African Head of State to be indicted by an international court while in office was initially indicted on seventeen counts of war crimes, crimes against humanity, and other serious violations of international humanitarian law.1137 The indictment was later reduced to eleven counts on committing, planning, instigating, ordering, aiding and abetting a number of crimes or otherwise participating in their commission as part of a common plan or design in Sierra Leone from 30 November 1996 to the end of the war. There were five counts of crimes against humanity, five counts of war crimes under the Geneva Conventions and their APs and one count of other serious violations of international humanitarian law.1138 The charges include terrorizing the civilian population, subjecting civilians to collective punishment, murder, sexual violence including rape, abduction 1134 Cf. William A. Schabas, The Special Tribunal for Lebanon: Is a ‘Tribunal of an International Character Equivalent’ to an ‘International Criminal Court’?, 21 LJIL 2, 2008, p. 514. 1135 Ibid. 1136 For more on the arrest and surrender of Charles Taylor to the Special Court, see Abdul Tejan-Cole, A Big Man in a Small Cell: Charles Taylor and the Special Court for Sierra Leone, in: Ellen L. Lutz / Caitlin Reiger (eds.), Prosecuting Heads of State, Cambridge University Press, Cambridge, 2009, pp. 205 – 232. 1137 SCSL, The Prosecutor v. Charles Ghankay Taylor, Case No. SCSL-2003-01-I, Indictment, 7 March 2003. This was the first indictment issued by the Special Court but upon a request from the Prosecutor both the indictment and the arrest warrant were kept under seal (The Prosecutor v. Charles Ghankay Taylor, Case No. SCSL-2003-01-I, Decision Approving the Indictment and Order for Non-Disclosure, 7 March 2003). 1138 SCSL, The Prosecutor v. Charles Ghankay Taylor, Case No. SCSL-03-01-PT, Second Amended Indictment, 29 May 2007.

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and hostage taking, severe mutilation, including the cutting off of limbs, forced labor, arson, looting, pillaging and the recruitment of child soldiers.1139 Pursuant to Rule 72(E) of the Special Court’s RPE,1140 it was possible for preliminary motions to be dealt with immediately by the Appeals Chamber. The Appeals Chamber of the Special Court rejected the preliminary motion relating to the potential immunity of Charles Taylor.1141 However, in order to be able to find that the paragraph in its statute that rejects the immunity of officials from prosecution (Article 6(2)) does not violate any peremptory norm of general international law, the Special Court had to first establish that it is an international court. The Appeals Chamber of the Special Court in addressing the preliminary motion on immunity filed by the Taylor Defence, pointed out that the key issue was the legal status of the Special Court i.e. whether it was an international tribunal or not. As held by the ICTY Appeals Chamber in the case of Prosecutor v. Dusko Tadic, the possibility to examine its own jurisdiction is an inherent function of every judicial or arbitral tribunal.1142 The Special Court’s Appeals Chamber found that the UNSC was not acting ultra vires when it initiated proceedings for the establishment of the Special Court by an Agreement with Sierra Leone: “Although the Special Court was established by treaty, unlike the (ICTY) and the (ICTR) which were each established by resolution of the Security Council in the exercise of powers by virtue of Chapter VII of the UN Charter, it was certain that the power of the Security Council to enter into an agreement for the establishment of the court was derived from the Charter of the United Nations both in regard to the general purposes of the United Nations as expressed in Article 1 of the Charter and the specific powers of the Security Council in articles 39 and 41. These powers are wide enough to empower the Security Council to initiate, as it did by Resolution 1315, the establishment of the Special Court by Agreement with Sierra Leone.”1143

1139 Cf. Fourth Annual Report of the President of the Special Court, 2006 – 2007, p. 29 et seq. The Special Court revealed the indictment and international warrant of arrest in June 2003 while Taylor was attending a peace negotiation meeting for Liberia in Ghana. After a peace deal was brokered Taylor accepted to step down and exile to Nigeria, from where he was later arrested and handed over to the Special Court. The indictment was first amended on 16 March 2006 and subsequently on 29 May 2007. 1140 Rule 72 (E) states 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 Judges, where they will proceed to a determination as soon as practicable.” Available at: http: // www.sc-sl.org / DOCUMENTS / tabid / 176 / Default.aspx. While the logic behind having this Rule was certainly for the sake of judicial economy, it poses a problem with regards to the right to appeal. By first addressing the issue at the appellate level, there is no other higher recourse available. 1141 SCSL, The Prosecutor v. Charles Ghankay Taylor, Case No. SCSL-2003-01-I, Decision on Immunity from Jurisdiction, 31 May 2004 (‘Taylor Decision on Immunity from Jurisdiction’). 1142 ICTY, Tadić Appeal Decision on Jurisdiction, paras. 28 – 39. 1143 SCSL, Taylor Decision on Immunity from Jurisdiction, para. 37.

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The Special Court’s Appeals Chamber further found that when the UNSC exercises its duties under Chapter VII, pursuant to Article 24 of the UN Charter, it does so on behalf of all the members of the UN and therefore the agreement between the UN and Sierra Leone on the establishment of the Special Court, could be seen as an agreement between all UN members and Sierra Leone. In the preamble of the UNSC resolution requesting the Secretary-General to negotiate an agreement with the Government of Sierra Leone, the UNSC refers to the situation in Sierra Leone as a continuing threat to international peace and security,1144 and later welcomes its establishment.1145 Thus since the Special Court was established to fulfill an international mandate and was part of the international machinery, it should be considered as being an international tribunal.1146 In doing so, the Special Court’s Appeals Chamber referred to the Opinion of Lord Sylnn of Hadley in the first Pinochet decision, wherein it was held that “there is … no doubt that states have been moving towards the recognition of some crimes as those which should not be covered by claims of state or Head of State or other official or diplomatic immunity when charges are brought before international tribunals.”1147 The Appeals Chamber also addressed the Accused’s argument that according to the Congo v. Belgium case, an incumbent Head of State enjoyed absolute immunity from criminal prosecutions and immunity from foreign jurisdictions and inviolability whether the Head of State is on foreign territory or not.1148 The Congo v. Belgium dictum found – albeit failing to state where in international law – that the immunity of an incumbent Minister of Foreign Affairs from foreign jurisdiction in foreign states is ‘firmly established’ in international law.1149 It could be argued that if the immunity enjoyed by an incumbent Minister of Foreign Affairs is due to the fact that he represents his state, a fortiori an incumbent Head of State, as the state’s representative par excellence should benefit from all the immunities enjoyed by a Minister Foreign Affairs if not more. The ICJ however distinguished between the jurisdictions of national courts, that are bound to respect immunities and jurisdictions of “certain international criminal courts” that are not bound by immunities.1150 The Special Court’s Appeals Chamber Cf. UN Security Council Resolution 1315, Doc. S / RES / 1315, 14 August 2000. Cf. UN Security Council Resolution 1400, Doc. S / RES / 1400, 28 March 2002. 1146 Cf. SCSL, Taylor Decision on Immunity from Jurisdiction, paras. 38 – 39. 1147 Cf. SCSL, Taylor Decision on Immunity from Jurisdiction, para. 52 citing UK House of Lords, R v. Bartle and the Commissioner of Police for the Metropolis and others, Ex Parte Pinochet, 25 November 1998. 1148 For the submission of the parties, see SCSL, Taylor Decision on Immunity from Jurisdiction, paras. 6 – 8, 10 – 12. 1149 For further discussion on the Belgium v. Congo case (also known as the Arrest Warrant case), see: A. Cassese, ‘When May Senior Officials Be Tried for International Crimes? Some Comments on the Congo v. Belgium Case’, 13 EJIL 4, 2002, pp. 853 – 875; B. Stern, ‘Les dits et les non dits de la Cour Internationale de Justice dans l’affaire RDC contre Belgique’, 4 FORUM, 2002, pp. 104 – 116; S. Wirth, Immunity for Core Crimes? The ICJ’s Judgment in the Congo v. Belgium Case, 13 EJIL 4, 2002, pp. 877 – 893. 1144 1145

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held that this distinction could be justified by the fact that the principle of state immunity is based on the perception that sovereign states are equal and could not thus exercise their jurisdiction over the head of another state, while international criminal tribunals are not state organs and derive their competence from the international community. It opined that “the principle of state immunity derives from the equality of sovereign states and therefore has no relevance to international criminal tribunals which are not organs of a state but derive their mandate from the international community”.1151 This vertical relationship as against the inter-state horizontal relationship results in ‘international criminal courts’ not being bound by the principle of state immunity. The result being that statutes of international criminal courts provide exceptions to the law, in particular the peremptory norms of public international law, which demand the respect of immunity of incumbent state officials. One can argue that the raison d’être is that the state parties to the said international instrument have consented to lifting the immunity of their officials if the latter are the subject of criminal proceedings. Following this logic, the states parties to the ICC could be seen – through their ratification of the ICC Statute – as having consented to the lifting of the immunity of their officials in case of criminal proceedings before the ICC. However, bearing in mind Article 34 of the VCLT1152 to the effect that treaties are only binding on the parties to the treaty (pacta tertiis nec nocent nec prosunt), it is difficult to reconcile the fact that certain provisions of the ICC Statute (Article 13(b) together with Article 27(1)) render it possible for the Head of State of a non State party to the ICC Statute to be prosecuted.1153 Failure to have the consent of the Non-member State to the international treaty, there would be the need to have a UNSC resolution pursuant to Chapter VII authorizing such criminal proceedings. The UNSC Resolutions establishing the ICTY and ICTR could be seen as such, as well as Resolution 1593 referring the situation in Darfur to the ICC.1154 1150 The ICJ in holding that Belgium had to comply with international law in respecting the immunity from jurisdiction enjoyed by the incumbent Foreign Minister of Congo who was charged for wr crimes, further distinguished between jurisdictional immunity and immunity from criminal responsibility. The difference being that the former is a matter of procedural law and the latter is a matter of substantive law. Thus the former could only delay criminal proceedings but never exculpate the individual from criminal proceedings at a later stage. 1151 See SCSL, Taylor Decision on Immunity from Jurisdiction, para. 51. 1152 Cf. Article 34 of the VCLT, 1155 UNTS, p. 331. 1153 See for example: ICC, The Prosecutor v. Omar Hassan Ahmad Al Bashir (“Omar Al Bashir”), Case No. ICC-02 / 05-01 / 09, Second Warrant of Arrest for Omar Hassan Ahmad Al Bashir, 12 July 2010, p. 9. See also Gennady Danilenko, ICC and Third States, in: Antonio Cassese et al. (eds.), The Rome Statute of the International Criminal Court – A Commentary, Oxford, OUP, 2002, Vol. II, pp. 1886 – 88; Joe Verhoeven, Les Immunités des Organes des Sujets du Droit International, in: Joe Verhoeven (dir.), Le Droit International des Immunités: Contestation ou Consolidation?, 2004, Larcier / LGDJ, pp. 89 – 91. 1154 Cf. UNSC Resolution 1593 Doc. S / RES / 1593, 31 March 2005.

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Following this legal argument as regards the Special Court being established on the basis of an agreement between the UN and Sierra Leone, and considering the fact that there was no Chapter VII Resolution establishing the Special Court it is somewhat problematic to see that the incumbent Head of State of Liberia (a State not party to the agreement between Sierra Leone and the UN), is not granted the immunity international law attributes to incumbent state officials. Be that as it may, the Special Court’s interpretation of the agreement between Sierra Leone and the UN as involving all member states of the UN portrays that it did consider that treaties are only binding on the parties to the treaty and Liberia being a member of the UN renders it also a member to the agreement.1155 Obviously this was the only possible finding it could reach if it did not want to terminate the proceedings against Charles Taylor before it. Sierra Leone as a State could not transfer jurisdiction over Charles Taylor, a sitting Head of State to the Special Court since it did not have it in the first place (Nemo plus iuris transferre potest quam ipse habet).1156 The Special Court’s Appeals Chamber clearly held that it “seems now established that the sovereign equality of states does not prevent a Head of State from being prosecuted before an international criminal tribunal or court.”1157 It further held that the Special Court, as an international tribunal could not disregard “whatever the Statute directs, permits or empowers it to do unless such provisions are void as being in conflict with a peremptory norm of general international law”.1158 This sentence clearly answers in the negative the question whether the recognition of Head of State immunity before ‘international criminal courts’ violates general international law. This decision being the first to directly address the issue of Head of State immunity before ‘international criminal courts’, contributes to the development of inter1155 This is exactly the position of one of the amici curiae, Diane F. Orentlicher, who in his “Submission of the Amicus Curiae on Head of State Immunity” in the Taylor Case, argued that the UN Security Council in entering an agreement with the Republic of Sierra Leone, did so “[o]n behalf of all members of the United Nations”. (Orentlicher Brief, 23 October 2003, p. 19). The other Amici Curiae who filed submissions in the Taylor case on the issue of Head of State immunity were Professor Philippe Sands Q.C. and the African Bar Association. 1156 Although this is commonly a legal rule used in civil law – as against criminal law in this case, it best describes the fact that Special Court could only attempt to rely on the UN being part of the Agreement and not on Sierra Leone. 1157 See SCSL, Taylor Decision on Immunity from Jurisdiction, para. 52. For more on the Special Court Decision on immunity from Jurisdiction see: Micaela Frulli, The Special Court for Sierra Leone: Testing the Water. The Question of Charles Taylor’s Immunity Still in Search of a Balanced Application of Personal Immunities?, 2 JICJ 4, 2004, pp. 1118 – 1129; A Mangu, Immunities of Heads of States 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, 28 South African Yearbook of International Law, 2003, pp. 238 – 245; Simon Meisenberg, Die Anklage und der Haftbefehl gegen Charles Ghankay Taylor durch den Sondergerichtshof für Sierra Leone, 17 Humanitäres Völkerrecht 1, 2004, pp. 30 – 39. 1158 See SCSL, Talyor Decision on Immunity from Jurisdiction, paras. 43 – 46.

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national humanitarian law. While both the Special Court Decision on immunity of heads of states and the Congo v. Belgium Decision fail to expressly address a fundamental question as to what is an ‘international criminal court’, the Special Court implicitly interprets the terminology in the Congo v. Belgium Decision: ‘certain international criminal courts’ as implying one the establishment of which the international community was involved.1159 The Congo v. Belgium Decision merely lays down the fundamental criteria to be taken into consideration as being whether the court is a national or international court. Considering the fact that for a court to be considered as international, it suffices that it be established by two states. In which case, these two states in question, without being restricted by Article 34 of the VCLT, would be able to exercise jurisdiction over another state not party to their agreement and thereby breaching a core concept of international law which is state sovereignty.

b) The Obligation of Third States to Cooperate Although the Special Court was established through an agreement between the UN Secretary-General and the Government of Sierra Leone, the former was authorized by the UNSC acting under Chapter VII, to negotiate an agreement with the Government of Sierra Leone. Thus it could be argued that the Special Court’s establishment was based on a Chapter VII Resolution. Be that as it may, the fact is that the Special Court has concurrent jurisdiction with and primacy over the national courts of Sierra Leone.1160 Thus, contrary to the ad hoc Tribunals which enjoyed primacy over all national courts,1161 the Special Court’s primacy was limited to the Sierra Leone national courts, thereby raising the question as to whether the primacy of the Special Court could be extended to include other countries other than Sierra Leone that might be willing to assert their jurisdiction over potential perpetrators of violations of international humanitarian law on the territory of Sierra Leone. In the October 2000 report of the UN Secretary-General on the establishment of the Special Court, the Secretary-General clearly pointed out that: “[T]he primacy of the Special Court, however, is limited to the national courts of Sierra Leone and does not extend to the courts of third States. Lacking the power to assert its primacy over national courts in third States in connection with the crimes committed in Sierra Leone, it also lacks the power to request the surrender of an accused from any third State and to induce the compliance of its authorities with any such request.”1162 1159 Cf. Sarah M. H. Nouwen, The Special Court for Sierra Leone and the Immunity of Taylor: The Arrest Warrant Case Continued, 18 LJIL 3, 2005, pp. 645 – 669. However, in situations where the UN is more involved in the administration of the country and in so-doing sets up courts and tribunals, such institutions cannot and should not be regarded as ‘international criminal courts’. 1160 Cf. Article 8 of the SCSL Statute. 1161 Cf. Articles 9 and 8 of the ICTY and ICTR Statutes respectively.

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Further, in addressing the issue of the obligation of third states to cooperate with the Special Court, the Appeals Chamber held that: “[O]ther than a situation in which the receiving state has an obligation under Chapter VII of the United Nations Charter or a treaty obligation to execute the warrant, the receiving authority has no obligation to do so. That state asserts its sovereignty by refusing to execute it. In the result, merely requesting assistance far from being an infringement of sovereignty of the receiving state is in fact recognition of sovereignty. […]. A warrant of arrest transmitted by one country to another is not self-executing. It still requires the cooperation and authority of the receiving state for it to be executed.”1163

Therefore, it is clear that the Special Court does not have any primacy over national courts apart from those of the territory of Sierra Leone and states were in their right to exercise their sovereignty and decide whether or not to cooperate with the Special Court. The Government of the Netherlands, in exercising its sovereignty in response to a request from the Special Court to hold proceedings against Charles Taylor in the Netherlands,1164 posed certain requirements before such proceedings could be held on its territory.1165 One of these requirements was the passing of a Chapter VII Resolution of the UNSC to this effect, thereby creating the legal basis for the trial of Charles Taylor to be conducted in the Netherlands.1166 This clearly portrays the attitude of states towards the Special Court with regard to its mode of creation and their obligation vis-à-vis the Special Court as a result of this. It remains questionable whether the Special Court belongs to the category of ‘certain international criminal courts’. Having said that, the recent developments at the ICC with regard to the situations in Sudan and Libya clearly depict the controversial approach of states vis-à-vis cooperation with international criminal courts. Moreso, when the states are not mem-

Report of the Secretary-General, 4 October 2000, supra note 15, para. 10. See SCSL Taylor Decision on Immunity from Jurisdiction, para. 57. 1164 Charles Taylor opposed a change of venue of his proceedings and filed a motion to this regard. The Appeals Chamber in dismissing the motion held that such issues relating to the venue of a trial are “[…] exclusively within the administrative and diplomatic mandate of the President. Prior to a decision being made, any questions relating to the president’s activities concerning the venue of the Taylor trial should be directed to the office of the President and not to the Trial or Appeals chambers.” See The Prosecutor v. Charles Ghankay Taylor, Case No. SCSL-2003-01-AR72, Decision on Urgent Defence Motion against Change of Venue, 29 May 2006, para. 8. The Taylor case was officialy moved to the premises of the ICC in The Hague due to the – at the time – delicate security situation in Sierra Leone. 1165 Cf. “Annex II to the Letter of 31 march 2006 from the Permanent Representative of the Netherlands to the United Nations addressed to the President of the Security Council”, UNSC doc. S / 2006 / 207. 1166 The UN Security Council acting under Chapter VII adopted Resolution 1688 on 16 June 2006 to the effect that the “Government of the Netherlands shall facilitate the implementation of the decision of the Special Court to conduct the trial of former president Taylor in the Netherlands, in particular by allowing the detention and the trial in the Netherlands of former president Taylor by the Special Court” (UN Doc. S / RES / 1688, 16 June 2006). 1162 1163

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bers, or do not recognize the jurisdiction of the institution in question. The situations in Sudan and Libya were referred to the ICC by the UNSC in accordance with Article 13, ICC Statute and pursuant to UNSC Chapter VII Resolutions.1167 However, the arrest warrants issued by the ICC Prosecutor as a result of the investigations carried out by his office have not been enforced. Both States are not members of the ICC Statute and do not recognize the arrest warrants. Further, even States that are ICC members such as Kenya and Chad have failed to execute these arrest warrants. This clearly portrays the difficulties that international criminal courts face with regard to State cooperation even when they are under an obligation vis-à-vis the international institution to do so. This failure to execute the arrest warrants issued by the ICC portrays the contentious legal situation regarding the issue of immunity of Heads of States and the obligation of states to cooperate with international criminal courts.1168 Some authors such as Dapo Akande put the blame for the non-cooperation of states as regards these arrest warrants (partly) on the ICC Judges for failing to address the issue of Heads of States immunity and the obligation of (member) states to cooperate with the ICC.1169 The ICC Judges merely stated that: “the Republic of Kenya has a clear obligation to cooperate with the Court in relation to the enforcement of such warrants of arrest, which stems both from the United Nations Security Council Resolution 1593(2005), whereby the United Nations Security Council ‘urge[d] all States and concerned regional and other international organizations to cooperate fully’ with the Court, and from article 87 of the Statute of the Court, to which the Republic of Kenya is a State Party.”1170

1167 See UNSC Resolution 1593 referring the situation in Darfur, Sudan since 1 July 2002 to the Prosecutor of the International Criminal Court, UN Doc. S / RES / 1593 (2005) adopted by the Security Council at its 5158th meeting on 31 March 2005; and UNSC Resolution 1970 referring the situation in the Libyan Arab Jamahiriya since 15 February 2011 to the Prosecutor of the International Criminal Court, UN Doc. S / RES / 1970 (2011) adopted by the Security Council at its 6491st meeting, on 26 February 2011. 1168 The author notes that there is no such universal obligation for states to cooperate with all international criminal courts. However, states do have specific obligations in relation to particular international criminal courts. This obligation to cooperate with international criminal courts is derived – depending on the court – either through the UNSC Chapter VII powers or as a result of a provision contained in the Statute of the court. 1169 Cf. Dapo Akande, ICC Reports Kenya and Chad to the UN Security Council over Bashir’s Visits, EJIL Talk, 28 August 2010, available at http: //www.ejiltalk.org/icc-reportskenya-and-chad-to-the-un-security-council-over-bashirs-visits/. See also Dapo Akande, The Legal Nature of Security Council Referrals to the ICC and its Impact on Al Bashir’s Immunities, 7 JICJ 2, 2009, pp. 333 – 352. For a contrary view on the duty of states to execute an arrest warrant againt a person who is entitled to immunity in international law albeit not before international criminal courts, see Paola Gaeta, Does President Al Bashir Enjoy Immunity From Arrest?, 7 JICJ 2, 2009, pp. 315 – 332. 1170 ICC, The Prosecutor v. Omar Hassan Ahmad Al Bashir, Case No. ICC-02 / 05-01 / 09, Decision Informing the United Nations Security Council and the Assembly of the States Parties to the Rome Statute About Omar Al-Bashir’s Presence in the Territory of the Republic of Kenya, 27 August 2010, p. 3. See also similar wording – albeit the absence of the word ‘clear’ in the description of the obligation – in Decisions issued pursuant to Al-Bashir’s visits to Chad

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While it could be suggested that vesting an international criminal court with primary jurisdiction or its creation through a UNSC Chapter VII Resolution ensure that states have an obligation to cooperate with it, the reality is more complex. The experience has indeed shown that there is no guarantee that states would indeed respect their international obligations. The ultimate approach taken by states depends very much on the political stakes. The reality is that state interest is always crucial in the approach taken by the given state. States are always sensitive to loosing their sovereignty and hence do not unconditionally cooperate with international criminal courts irrespective of whether they have the obligation to do so or not. In this regard, the jurisprudence of the Special Court is commendable in that it reaffirms that the request for assistance from a state is ‘far from being an infringement of sovereignty of the receiving state [but] is infact recognition of sovereignty’:1171 This approach could be followed by other international criminal courts in order to reassure states that the courts do not want to usurp their sovereignty. Having said that, it should be noted that this contentious legal situation only exists because of the recognition in the international criminal law arena that Heads of States do not enjoy any immunity for international core crimes before international criminal courts. Hence, the issue of immunity of Heads of States and Governments is inextricably linked to the international nature of the court seeking to exercise its jurisdiction. Thus, it is imperative at this point to analyze what amounts to an ‘international criminal court’. The legitimate question here is the following: is this characterization based on the mode of creation, the mandate (ratione materiae), the location, the applicable law or a combination of all? c) What are the Common Factors / Criteria for an International Criminal Court? An analysis of the various so-called international criminal courts, points out that their methods of establishments, legal personality, powers and even applicable law are not necessarily the same. While the ICTY and ICTR were created by a UNSCChapter VII Resolution;1172 the ICC was created by a treaty signed by states that decided to adhere to its principles;1173 the Special Court and the Extra-Ordinary and Djibouti: Decision Informing the United Nations Security Council and the Assembly of the States Parties to the Rome Statute About Omar Al-Bashir’s Recent Visit to the Republic of Chad, 27 August 2010, p. 3; and Decision Informing the United Nations Security Council and the Assembly of the States Parties to the Rome Statute About Omar Al-Bashir’s Recent Visit to Djibouti, 12 May 2011, p. 3. 1171 See SCSL Taylor Decision on Immunity from Jurisdiction, para. 57. 1172 UN Doc. S / RES / 827, 25 May 1993 and UN Doc. S / RES / 955, 8 November 1994 respectively. 1173 United Nations Diplomatic Conference on Plenipotentiaries on the Establishment of an International Criminal Court, 17 July 1998.

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Chambers in Cambodia were created by an agreement between the UN SecretaryGeneral and the Governments of Sierra Leone1174 and Cambodia respectively;1175 the STL was established by a Security Council Chapter VII Resolution;1176 the Serious Crimes Unit and the Special Panels for Serious Crimes in Dili in Timor Leste,1177 as well as the Kosovo war crimes prosecutions were established by UN transitional administrations.1178 The Iraq Special Tribunal cannot be considered to be an international criminal court, since it was originally established by an occupation power and subsequently integrated into the national judiciary without any formal international participation as far as the judicial actors are concerned.1179 Further, the applicable law differs greatly: the ICTY and ICTR apply international humanitarian law, the Special Court applies both international humanitarian law and Sierra Leonean law, the STL applies only Lebanese law etc. Thus it would be incorrect to conclude that any jurisdictional organ created by the Security Council, even acting pursuant to Chapter VII of the UN Charter1180 should be considered an ‘international criminal court’. 1174 Cf. Agreement between the United Nations and the Government of Sierra Leone on the Establishment of a Special Court for Sierra Leone, supra note 20. 1175 Cf. Law on the Establishment of Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed during the Period of Democratic Kampuchea, supra note 8. 1176 UN Security Council Resolution 1757, Doc. S / RES / 1757, 30 May 2007. 1177 The East Timor Special Panels for Serious Crimes were established as part of the transitional court system by the UNTAET within the District Court of Dili, pursuant to Section 10 of UNTAET Regulation 2000 / 11 as amended by UNTAET Regulation 2001 / 25. 1178 Cf. UN Security Council Resolution 1244, Doc. S / RES / 1244, 10 June 1999, which confers the Special Representative of the Secretary-General with powers of civil administration. Article 11(i) of this Resolution provides that the main responsibilities of the international civil presence will include “[m]aintaining civil law and order, including establishing local police forces and meanwhile through the deployment of international police personnel to serve in Kosovo”. For more on the administration of criminal justice in Kosovo, see Michael Bohlander, Kosovo: The Legal Framework of the Prosecution and the Courts, in: Ambos / Othman (eds.), New Approaches in International Criminal Justice: Kosovo, East Timor, Sierra Leone and Cambodia, supra note 16, pp. 21 – 59; Ingo Risch, Some Practical Issues Concerning the Development of the Judicial System in Kosovo, in: Ambos / Othman (eds.), New Approaches in International Criminal Justice: Kosovo, East Timor, Sierra Leone and Cambodia, supra note 16, pp. 61 – 70. 1179 See Coalition Provisional Authority Order Number 48: Delegation of Authority Regarding an Iraqi Tribunal, CPA / ORD / 9 Dec 2003 / 48 (2003) (IST Statute). Retrieved 28 May 2011 from: http: // www.iraqcoalition.org; Official Gazette of the Republic of Iraq, No. 4006, October 18, 2005, Article 28 (judges, prosecutors, and staff), Article 19, paragraph 4, sub B (principal defence lawyer). English translation by the International Centre for Transitional Justice retrieved from: http: // www.ictj.org / static / MENA / Iraq / iraq.statute.engtrans.pdf. See also Kai Ambos, Internationales Strafrecht, supra note 22, § 6, mn. 47, 53. For a comparison between the Special Court, the Lebanon Tribunal and the Iraq Special Tribunal, see Njikam, Said, Stegmiller, Der Sondergerichtshof für Sierra Leone, der Oberste Irakische Strafgerichtshof und das Sondertribunal für Lebanon – Ein Vergleich, 9 ZIS, 2008, available at: www.zisonline.com.

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According to the ICTY Appeals Chamber, an international criminal court is “established by law” when it is “rooted in the rule of law and offer all guarantees embodied in the relevant international instruments.”1181 In this regard Kelsen submits that an international jurisdiction needs to be based on an international act, i.e. an act carried out by multiple states and not just a single one.1182 Hence, the only common factor that could be deduced from the above diverse modes of creation is the fact that none of them was set up unilaterally by a single state but rather – considering the UNSC as representative of all members of the UN – by several states. With regard to the ICC, it is rather clear that this was the volition of a great number of states to create an international judicial organ. This internationality requirement is vital when one considers that these international criminal courts render judgments in the name of the international community and – at least in part – address crimes of concern to the international community.1183

IV. Jurisdiction over Children between 15 and 18 Years of Age As seen above, customary international law prohibits the conscription, enlistment and use of children to participate actively in hostilities albeit the inconsistencies with regard to the age applicable.1184 However, there is no such rule in customary international law with regards to the age limit for criminal responsibility. At the national level, children are exempted from criminal responsibility for their acts because they are deemed to unable to have had the necessary criminal intent (‘doli incapax’).1185 However, this age limit varies depending on various factors such as the history and culture of the country in question, as well as the nature of the crime.1186 Another particularity of the Special Court vis-à-vis other international criminal tribunals is its competence to prosecute children between 15 and 18 years of age.1187 This marked a clear depart from other international norms including that 1180 Chapter VII of the UN Charter empowers the Security Council to “determine the existence of any threat to the peace, breach of the peace, or act of aggression” and to take military and non-military action to “restore international peace and security”. 1181 ICTY, Tadić Appeal Decision on Jurisdiction, paras. 10 – 12. 1182 Hans Kelsen, Théorie Générale du Droit International Public – Problèmes Choisis, 42 RCADI, 1932, p. 168. 1183 For more on the modes of creation of international criminal courts, see Élisabeth Lambert Abdelgawad, Quelques Brèves Réflexions sur les Actes Créateurs des Tribunaux Pénaux Internationalisés, in: Hervé Ascensio / Elisabeth Lambert-Abdelgawad / Jean-Marc Sorel (eds.), Les Juridictions Pénales Internationalisées, supra note 194, pp. 27 et seq. 1184 See Chapter Six. Section III above, 194. 1185 Cf. Antonio Cassese, International Criminal Law, 2nd edn., OUP, Oxford, 2008, p. 229. 1186 Cf. Stuart Beresford, Child Witnesses and the International Criminal Justice System, Does the International Criminal Court Protect the Most Vulnerable?, 3 JICJ 3, 2005, p. 731. 1187 Article 7, SCSL Statute.

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of the International Criminal Court, whose jurisdiction starts as from 18 years of age. The decision on the granting of the Special Court with such a mandate is based on the nature of the conflict which witnessed a great number of crimes committed by children. This resulted in a situation where the children were both perpetrators as well as victims in the conflict. Generally, it might have been beneficial if the Special Court had indicted anyone who could be classified as a child for this would have been an opportunity to enrich and further develop the jurisprudence in international criminal law. The then Chief Prosecutor David Crane took the decision not to prosecute any children on the grounds that they did not satisfy the greatest responsibility threshold.1188 Indeed, reading Article 7 in conjunction with Article 1(1) SCSL Statute, and bearing in mind that the Special Court interpreted the wordings “those who bear the greatest responsibility” as relating to the fact that a person held a leadership position and not the severity of a crime or massive scale of a particular crime,1189 it is questionable whether any child would have fitted into the category of persons bearing the greatest responsibility. Therefore it could be argued that this narrow definition resulted in a de facto focus on adults who illegally forced children into service rather than the children who actually committed the crimes themselves.1190 This in and by itself could be seen as reflective of the dilemma that exists when the decision is made to prosecute children for crimes they are accused to have committed during an armed conflict. However, in view of the fact that customary international law does not have any rule that sets the minimum age at which the individual criminal responsibility of children is valid, this inaction by the Special Court against juvenile criminal perpetrators can be seen as part of its legacy. This is so because it reflects the apparent incompatibility of striving on the one hand to prosecute those who bear the greatest responsibility and on the other hand to prosecute children between the age of 15 and 18. Considering the fact that it was a novum in international criminal law, it would be at this point right to describe it as an unsuccessful attempt and not worthy of repeptition elsewhere. Other accountability mechanisms could and should be used with children who committed crimes in armed conflicts. Such an approach could be the use of truth 1188 Special Court then Chief Prosecutor David Crane stated that: “[t]he children of Sierra Leone have suffered enough both as victims and as perpetrators. I am not interested in prosecuting children. I want to prosecute the people who forced thousands of children to commit unspeakable acts”, quoted in B Dougherty, Right-Sizing International Criminal Justice: The Hybrid Experiment at the Special Court for Sierra Leone, 80 International Affairs 2, 2004, p. 324. 1189 SCSL, The Prosecutor v. Moinina Fofana Decision on Lack of Personal Jurisdiction, para. 40. 1190 Cf. Mark Iacono, The Child Soldiers of Sierra Leone: Are They Accountable for Their Actions in War, 26 Suffolk Transnat’l L. Rev. 2, 2003, p. 445.

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commissions vested with semi-judicial powers alongside some counseling in order for the children to be able to re-intergrate the society in which they committed the crimes.

V. Jurisprudence on Sentencing While the international tribunals at Nuremberg and Tokyo have been lauded for the significant contribution and legacy they left behind with regards to crimes against humanity and war crimes, these international tribunals failed to leave any significant guidelines in relation to the practice of sentencing.1191 Generally, a look at the sentencing practices of international criminal courts divulges a discrepance in the length of sentences meted out.1192 This is rather stricking considering the fact that the international criminal courts apply the same international humanitarian law. Hence, the inability to justify this considerable difference in the sentences meted out. Prior to analyzing the practice of sentencing at the Special Court (3.), which differs to some extent from that of other international criminal courts, it is imperative to first briefly analyse the primary objectives of sentencing in international criminal courts (1.) and the regulatory framework at the Special Court (2.).

1. Primary Objectives of Sentencing It should be noted that none of the statutes of the international criminal courts address the issue of the objective of sentencing within their jurisdiction.1193 The primary objectives of sentencing – as recognized by international jurisprudence – are retribution and deterrence.1194 In the Kambanda case, the Trial Chamber held that: “[i]t is clear that the penalties imposed on accused persons found guilty by the Tribunal must be directed, on the one hand, at retribution of the said accused, who must see their crimes punished, and over and above that, on the other hand, at deterrence, namely dissuading for good those who will attempt in future to perpetrate such atrocities by showing them 1191 Cf. William Schabas, Sentencing By International Tribunals: A Human Rights Approach, 7 Duke J. Comp. & Int’l L. 2, 1997, p. 461. 1192 Cf. Mark Harmon and Fergal Gaynor , The Sentencing Practice of International Criminal Tribunals: Ordinary Sentences for Extraordinary Crimes, in 5 JICJ 3, 2007, p. 683. 1193 See Karim Khan and Rodney Dixon, Archbold, International Criminal Courts Practice, Procedure and Evidence, Sweet & Maxwell, London, 2009, p. 1313. 1194 ICTY, Prosecutor v. Dusko Tadic, Case No. IT-94-1-A and IT-94-1-Abis, Judgment, 26 January 2000, para. 48; Prosecutor v. Zejnil Delalic et al., Case No. 96-21-A, Judgment, 20 February 2001, para. 806; ICTR, Prosecutor v. George Rutaganda, Case No. ICTR-96-3-T, Judgment, 6 December 1999, para. 456; Prosecutor v. Omar Serushago, Case No. ICTR-9839-S, Sentence, 5 February 1999, para. 20; Prosecutor v. Jean Kambanda, Case No. ICTR-9723-S, Judgment and Sentence, 4 September 1998, para. 28.

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that the international community was not ready to tolerate the serious violations of international humanitarian law and human rights.”1195

In discerning these objectives, the ad hoc Tribunals have taken into account the statements made by UNSC members at the time the ad hoc Tribunals were established.1196 Other objectives are prevention, rehabilitation and stigmatization.1197 We will however in this work only analyse the primary objectives i.e. retribution and deterrence.1198 a) Retribution Retribution is recognized as one of the touchstones of international sentencing. Black’s Law Dictionary defines retribution as “punishment imposed as repayment or revenge for the offense committed”.1199 According to the ICTY jurisprudence, the ”governing criterion in sentencing is that the sentence should reflect the totality of the offender’s conduct (the “totality” principle), and […] it should reflect the gravity of the offences and the culpability of the offender so that it is both just and appropriate”.1200 Simply put, retribution implies that the punishment must be proportionate to the guilt of the accused and the gravity of the crime.1201 In this regard, Judges McDonald and Vohrah in their Joint Separate Opinion submit that “all things being equal, a punishable offence, if charged and proven as a crime against humanity, is more serious and should ordinarily entail a heavier penalty than if it were proceeded upon on the basis that it were a war crime”.1202 However, this opinion has not been met with much support. The Appeals Chamber in the Tadic case held that “there is in law no dictinction between the seriousness of a crime against humanity and that of a war crime […] the authorized penalties are also the same”.1203

1195 ICTR, Prosecutor v. Jean Kambanda, Case No. ICTR-97-23-S, Judgment and Sentence, 4 September 1998, para. 28. 1196 See Karim Khan and Rodney Dixon, Archbold, International Criminal Courts Practice, Procedure and Evidence, supra note 1193, p. 1313. 1197 SCSL, CDF Appeals Judgment, para. 532. 1198 For further discussion on the objectives of sentencing in the international criminal law arena see Kai Ambos / Christian Steiner, Vom Sinn des Strafens auf innerstaatlicher und supranationaler Ebene, in: Juristische Schulung, 2001, pp. 9 et seq. See also Jan Christoph Nemitz, The Law of Sentencing in International Criminal Law: The Purposes of Sentencing and the Applicable Method for the Determination of the Sentence, in: H. Fischer / Avril McDonald (eds.), 4 YIHL, T.M.C. Asser Press, The Hague, 2001, pp. 87 et seq. 1199 Bryan A. Garner, Black’s Law Dictionary, 8th edn., West Group, 2004, p. 1343. 1200 ICTY, Prosecutor v. Mucic et al., Case No. IT-96-21-Abis, Judgment on Sentence Appeal, 8 April 2003, para. 21, citing Prosecutor v. Delalic et al., Case No. IT-96-21-A, Judgment, 20 February 2001, para. 42. 1201 SCSL, Prosecutor v. Issa Sesay et al., Sentencing Judgment, para. 13. 1202 ICTY, Prosecutor v. Erdemovic, Case No.IT-96-22-A, Joint Separate Opinion of Judge McDonald and Judge Vohrah, 7 October 1997, paras. 20 – 26.

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It should be noted that the so-called international core crimes amount to the gravest category of crimes for the purposes of punishment.1204 However, because of the particular nature of such crimes it is difficult, if not impossible to make the punishment exactly proportional to the grievious nature of the offence. Bearing in mind that the objective of retribution is punishment and such punishment should be proportionate to the seriousness of the offence, it would be necessary to establish a hierarchy of the offences with a scale based on the progressive graduation of punishment reflective of the gravity of the offence.1205 Further, considering the virtually large number of victims in international criminal law arena, if the number of years imposed on the convicts were to be divided by the number of victims, the result would be a couple of days per victim. This obviously does not reflect the seriousness nature of the offence. Moreover, as D’Ascoli points out, another negative aspect of this concept is that it cannot be reconciled with one of the objectives of the creation of international criminal tribunals, which is to assist in the social peacemaking process.1206 b) Deterrence The concept of deterrence can be defined as an attempt to prevent future criminal behaviour. Black Law Dictionary defines deterrence as “[t]he act or process of discouraging certain behaviour, particularly by fear; especially as a goal of criminal law”.1207 Contrary to the retributive concept, deterrence is future oriented and strives to prevent future crimes through the establishment of an environment of fear for potential future offenders.1208 Deterrence could be with a bifurcated aim, either to prevent the individual from committing a crime again (known as the specific or individual detterence) or by communicating a dissuasive message to potential criminals that such conduct would not go unpunished and shall be met with sanctions (known as general deterrence). Hence, one talks of specific or individual detterence and general deterrence.1209 In this regard, D’Ascoli points out that the strategies to achieve individual deterrence have been identified as, for example, removing the physical power and / or desire to offend from the individual, and / or making the offender to be afraid of breaking the law once more. On the other 1203 ICTY, Prosecutor v. Tadic, Case No. IT-94-1-A and IT-94-1-Abis, Judgment in Sentencing Appeals, 26 January 2000, para. 69. 1204 See Karim Khan / Rodney Dixon, Archbold, International Criminal Courts Practice, Procedure and Evidence, supra note 1193, p. 1072. 1205 For more on the purpose of sentencing, see Silvia D’Ascoli, Sentencing in International Criminal Law, the UN ad hoc Tribunals and Future Perspectives for the ICC, Hart, Oxford, 2011, pp. 60 et seq. 1206 Ibid. 1207 Bryan A. Garner, Black’s Law Dictionary, 8th edn., West Group, 2004, p. 481. 1208 Cf. Silvia D’Ascoli, Sentencing in International Criminal Law, supra note 1205, p. 67. 1209 Ibid., pp. 1313 et seq.

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hand, general deterrence has been strived by using punishment itself and an example to others.1210 In the Stakic case, the Trial Chamber stated that: “[i]n the context of combating international crimes, deterrence refers to the attempt to integrate or to reintegrate those persons who believe themselves to be beyond the reach of international criminal law. Such persons must be warned that they have to respect the fundamental global norms of substantive criminal law or face not only prosecution but also sanctions imposed by international tribunals. In modern criminal law this approach to general deterrence is more accurately described as deterrence aiming at reintegrating potential perpetrators into the global society.”1211

Deterrence implies that “the penalties imposed by [an international criminal court] have a detterent value to ensure that those who would consider committing similar crimes will be dissuaded from doing so”.1212 It is considered on the one hand to be general when it is conceived that the sentence meted out to a convicted person can serve as an example to other potential criminals who would then desist from committing crimes. Black’s Law Dictionary defines general deterrence as “a goal of criminal law generally or of a specific conviction and sentence, to discourage people from committing crimes”.1213 It is on the other hand specific / individual, when it strives at preventing future criminal conduct from the person(s) convicted.1214 Black’s Law Dictionary defines special deterrence as “a goal of a specific conviction and sentence to dissuade the offender from committing crimes in the future”.1215 The ICTY in the Dragan Nikolic case defined individual deterrence as “the specific effect of the sentence upon the accused which should be adequate to discourage him from re-offending once the sentence has been served and he has been released”.1216 Some authors question the efficiency of this objective. Mark Harmon submits that the rather severe sentences handed out at the Nuremberg and Tokyo tribunals did not seem to deter the occurrence of subsequent mass atrocities such as those that occurred in Stalin’s Russia, Pol Pot’s Cambodia, Idi Amin’s Uganda, Mengitsu’s Ethopia, the former Yugoslavia, Rwanda, Eastern Congo and Darfur etc.1217 Although it is impossible to objectively assess how many, if any, would-be perpetraSilvia D’Ascoli, Sentencing in International Criminal Law, supra note 1205, p. 68. ICTY, Prosecutor v. Stakic, Case No. IT-97-24-T, Judgment, 31 July 2003, para. 902. 1212 ICTY, Prosecutor v. Todorovic, Case No. IT-95-9 / 1-S, Sentencing Judgment, 31 July 2001, para. 29. 1213 Bryan A. Garner, Black’s Law Dictionary, 8th edn., West Group, 2004, p. 481. 1214 SCSL, Prosecutor v. Issa Sesay et al., Sentencing Judgment, para. 13. 1215 Bryan A. Garner, Black’s Law Dictionary, 8th edn., West Group, 2004, p. 481. 1216 ICTY, Prosecutor v. Dragan Nikolic, Case No. IT-94-2-S, Sentencing Judgment, 18 December 2003, para. 135. 1217 Cf. Mark Harmon / Fergal Gaynor, The Sentencing Practice of International Criminal Tribunals: Ordinary Sentences for Extraordinary Crimes, supra note 1192, p. 688. 1210 1211

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tors have been deterred from committing crimes, this inablility should be equated with the non-existence of such cases. Moreover, the desire to set an example for others could result in the individual perpetrator being sentenced more severely than would normally be applicable. This in turn would not be in harmony with the notion of justice which requires proportional punishment for the crime committed.

2. The Regulatory Framework for Sentencing at the Special Court Similarly to the Statutes of other international criminal courts, the SCSL Statute contains provisions dealing with sentencing.1218 The Special Court cannot impose a death sentence. Article 19(1) of the SCSL Statute provides that: “[T]he Trial Chamber shall impose upon a convicted person, other than a juvenile offender, imprisonment for a specified number of years. In determining the terms of imprisonment, the Trial Chamber shall, as appropriate, have recourse to the practice regarding prison sentences in the International Criminal Tribunal for Rwanda and the national courts of Sierra Leone.”1219

It should be noted that the Sierra Leonean judicial system does provide for life imprisonment.1220 Hence, apart from juveniles – who shall be entitled to the following rehabilitation measures: care guidance and supervision orders, community service orders, counselling, foster care, correctional, educational and vocational training programmes, approved schools and, as appropriate, any programmes of disarmament, demobilization and reintegration or programmes of child protection agencies1221 – the Special Court was entitled to impose fixed-term sentences. In order to harmonise the practice of sentencing in the international criminal justice system, the Special Court was to have recourse inter alia to the practice at the ICTR. However, the practice of the Special Court has differed from that of other international criminal courts in general.and that of the ICTR in particular. In accordance with Rule 100(A) of the RPE, the Special Court scheduled separate sentencing hearings in order to listen to the submissions of the parties regarding the sentencing. This practice differs with that of the ad hoc Tribunals where the parties are expected to address the issue of sentencing during the closing arguments.1222 It has been suggested that the decision at the ad hoc Tribunals not proceed in two separate proceedings could be due to financial and timely considera1218 1219 1220 1221 1222

Article 19, SCSL Statute. Emphasis added. Cf. Bankole Thompson, The Criminal Law of Sierra Leone, supra note 125, p. 35. Article 7(2), SCSL Statute. Rule 86(c), ICTR and ICTY Statutes.

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tions.1223 All the more reason why it is difficult to comprehend why the Special Court decided to follow the two-phase approach. Although there is no supportive evidence, critical observers of the proceedings at the Special Court saw this as an attempt by the Judges to retain their jobs as long as possible. While this could be one of the reasons for the two-phase approach, it should also be noted that the Special Court generally relied on the law applicable at the ICC and this provides for separate sentencing.1224 Further, in addition to to imprisonment sentences, the Special Court may “order the forfeiture of the property, proceeds and any assets acquired unlawfully or by criminal conduct, and their return to the rightful owner or to the State of Sierra Leone”.1225 However this provision has not been applied by the Special Court thus far and it is highly unlikely that this would be done.

3. The Practice of Sentencing at the Special Court In accordance with the standards of international law relating to sentencing, the punishment of individuals for crimes against humanity and war crimes, being some of the most grevious crimes, demands that most severe penalties be meted out save for when mitigating circumstances do exist.1226 The SCSL Statute provides that in imposing the sentences, the Trial Chamber “should take into account such factors as the gravity of the offence and the individual circumstances of the convicted person.”1227 In this regard, it should be noted that, and as has been lengthily discussed elsewhere in this work, the official position of any accused person, be it a Head of State or Government, or a responsible government official, shall not be considered as mitigating circumstances.1228 Likewise, the purpose for the commission of the crime should not be considered as a mitigating factor. It is rather unfortunate that the CDF Trial Chamber at the sentencing phase, considered as a mitigating circumstance the fact that the members of this group were fighting to restore democracy.1229 It held that:

1223 Cf. Andrew N. Keller, Punishment for Violations of International Criminal Law: an Analysis of Sentencing at the ICTY and ICTR, 12 Ind. Int’l & Comp. L. Rev 1. 2001, p. 73. 1224 Article 76, ICC Statute. 1225 Article 19(3), SCSL Statute. See also Rule 104, Special Court’s RPE. 1226 ICTY, The Prosecutor v. Erdemović, Case No. IT-96-22-T, 29 November 1996, Sentencing Judgment, para. 31. 1227 SCSL Statute, Article 19. The same wording is found in Articles 24(2) and 23(2) of the ICTY and ICTR Statutes respectively. 1228 SCSL Statute, Article 6(2).The same wording is found in Articles 7(2) and 6(2) of the ICTY and ICTR Statutes respectively. 1229 SCSL, The Prosecutor v. Moinina Fofana and Allieu Kondewa, Case No. SCSL-0414-T, Judgment on the Sentencing of Moinina Fofana and Allieu Kondewa, 9 October 2007, paras. 40, 82 et seq.

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“The main distinguishing factor is that the acts of the Accused and those of the CDF / Kamajors for which they have respectively been found guilty, did not emanate from a resolve to destabilize the established constitutional order. Rather, on the contrary, the CDF / Kamajors was a fighting force that was mobilized and was implicated in the conflict in Sierra Leone to support a legitimate cause, which, as we have already seen, was to restore the democratically elected Government of President Kabbah which had been illegally ousted through a Coup d’Etat orchestrated and carried out on the 25th of May 1997, by a wing of the Sierra Leone Armed Forces that later constituted and baptized itself as the Armed Forces Revolutionary Council.”1230

The nature of the crimes committed is what inter alia needs to be taken into accout and not the rationale for doing so. Although the Special Court’s Appeals Chamber corrected this fundamental error and held that “consideration of political motive by a court applying international humanitarian law not only contravenes, but would undermine a bedrock principle of that law”,1231 it however did not increase the sentences any where close to those of the AFRC and RUF groups. This great discrepance in the term of sentencing is certainly not one of the positive legacy of the Special Court. As mentioned above Alex Tamba Brima, Santigie Borbor Kanu and Ibrahim Bazzy Kamara (AFRC) were sentenced to 50 years and 45 years respectively. The members of the RUF (Issa Sesay, Moris Kallon and Augustine Gbao) were sentenced to 52, 40 and 25 years respectively. In the CDF case, the Accused Moinina Fofana and Allieu Kondewa were initially sentenced to six years and eight years respectively.1232 However, the CDF Appeal Judgment, issued on 28 May 2008, substantially revised the sentences by increasing them to 15 years for Moinina Fofana and 20 years for Allieu Kondewa.1233 However, it is apparent that the fact that the CDF forces were fighting for the democratically elected government seemed to have been accorded an enormous weight in the sentencing phase. This, in the author’s view, effaces the initial praises that the Special Court prosecuted all the main groups that were involved in the conflict. It is certainly not a contribution to the development of international humanitarian law in this respect. More so, when it is clear, as has been established that all factions to the conflict committed international crimes. Hence, it is evident that there is no structured theory of sentencing of mass violence in international law. The difficulty with developing such a theory is that there is no hierarchy of international crimes and thus it is difficult to set up some theory. The setting up of such a hierarchy was rejected by the ICTY Appeals Chamber, wherein it held that there is no presumptive disctinction between war crimes and 1230 SCSL, The Prosecutor v. Moinina Fofana and Allieu Kondewa, Case No. SCSL-0414-T, Judgment on the Sentencing of Moinina Fofana and Allieu Kondewa, 9 October 2007, para. 82. 1231 SCSL, Fofana and Kondewa Appeal Judgment, 28 May 2008, para. 531. 1232 SCSL, The Prosecutor v. Moinina Fofana and Allieu Kondewa, Case No. SCSL-0414-T, Judgment on the Sentencing of Moinina Fofana and Allieu Kondewa, 9 October 2007. 1233 SCSL, Fofana and Kondewa Appeal Judgment, 28 May 2008, p. 190.

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crimes against humanity with respect to their seriousness or the severity of the punishment they should attract.1234 The sentencing phase at international criminal courts remains the chasse gardée of the Judges, who, guided by the Statutes and laws applicable in national jurisdictions, exercise their discretion in meting out sentences. Having sait that, the discretion exercised by Judges in relation to sentencing ought to be however abridged by the setting up of some sentencing theory. A starting point could be an analysis of the sentences that have been meted out thus far for international crimes by international criminal courts and national courts in order to establish some pattern / guidance. In this regard D’Ascoli having carried out such an analysis warns that imposing a fixed penalty regime may not be the most appropriate approach in the international arena, given that excessively rigid penalties might not be sufficiently flexible to accommodate the vast range of categories and sub-categories of international crimes and the releant sentencing variables that are linked to them. In this light, the author deems D’Ascoli’s proposal to have an alternative model as more suitable for international sentencing.1235 This would involve establishing a range of penalties with ample minima and maxima related to the various categories of international crimes, thereby providing an indicative threshold established by law and allowing the judges to exercise appropriate discretion.1236 It would be recommendable that the ICC which has only issued its first judgment and is still at the verge of issuing its first sentence, develop some rules and principles in relation to sentencing. This obviously should not disregard the fact that every case has its particularities which would and should ultimately be reflected in the sentence meted out. However, the establishment of such guidelines would go a long way to consolidate the practice of sentencing in international law and thereby have a positive effect on the objectives of sentencing.

VI. Outreach Section The outreach program of the Special Court has been hailed as the crown jewel of the Special Court.1237 This organ assists in reporting developments of the Special Court in local papers, radio stations and gatherings.1238 This has undoubtedly contributed in the positive perception the local community has about the Special

ICTY, Tadić Appeal Judgment, para. 69. Silvia D’Ascoli, Sentencing in International Criminal Law, supra note 1205, p. 284. 1236 Ibid. 1237 Cf. SCSL, Report on the Special Court for Sierra Leone, Submitted by the Independent Expert Antonio Cassese, 12 December 2006, available at: http: //www.sc-sl.org/DOCUMENTS/ tabid/176/Default.aspx, p. 59. 1238 Cf. Campaign for Good Governance, Opinion Poll Report on the Truth and Reconciliation Commission and the Special Court 13, 2003, available at http: //www.slcgg.org/opinion poll.pdf. 1234 1235

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Court.1239 It is one of, if not the most successful outreach program among all international criminal courts. The outreach program was established in 2002 with the aim of educating the public about the existence and functions of the Special Court, as well as efforts being undertaken to rebuild the national judiciary system and regain respect for the rule of law. At the time of its creation it was anticipated that this organ would create rights-awareness, and assist in showing how justice is being dispensed to those accused to be the most responsible for the long lasting conflict in Sierra Leone.1240 It was to help transmit the feeling of ownership of the Special Court to the local community. Considering the fact that its goal was to inform the general population, as well as particular groups of the society of the work of the Special Court, in order to transmit a feeling of belonging and increase awareness, it adopted a pragmatic approach. Its modus operandi involved the training of local officials in the field of the rule of law, due process and the rights of the accused, as well as enhancing their knowledge of the mandate of the Special Court.1241 Further, regional seminars on transitional justice were organized – via women’s groups – in order to disseminate information on gender issues.1242 The Outreach program of the Special Court as well adopted a cross-border approach with activities being organized in neighbouring countries such as Guinea and Liberia.1243 This is undisputedly one of the most substantial contributions of the Special Court to international humanitarian law in particular and the international justice system in general.

1239 The Sierra Leonean NGO, Campaign for Good Governance carried out an opinion poll involving 1,279 respondents throughout Sierra Leone. It was established that 61 percent of those questioned thought that the Spcial Court was set up for their benefit, 22 percent had no idea and five percent believed it was for the international community’s interest. 1240 Cf. International Center for Transitional Justice, The Legacy of the Special Court for Sierra Leone, New York, 29 September 2003, p. 5. 1241 SCSL, Fourth Annual Report of the President of the Special Court for Sierra Leone, January 2006 to May 2007, p. 53. 1242 Id. 1243 Ibid., p. 54.

Chapter 9

General Conclusion The Special Court has in it’s nearly decade of existence completed all but one case before it. Regardless of whatever shortcomings the Special Court may have had in the course of its existence, it should be said that one of its greatest achievements is that it established the fact that an international criminal court of its nature could function – albeit the great difficulties it has faced – without a prior UNSC resolution bestowing it with chapter VII powers. The Special Court marked a new approach by the international community to violations of international humanitarian law. The object of this thesis was to provide a comprehensive analysis of the contribution of the Special Court to the development of international humanitarian law. Similar to its predecessors (ad hoc Tribunals), the Special Court reaffirmed the position that in order to effectively combat impunity, individuals must be held responsible for their acts or inactions that amount to violations of international law. By so doing the Special Court consolidated the principle under international law of individual criminal responsibility. Particularly, its decision to prosecute members of each of the main national warring groups strengthens the principle of individual criminal responsibility, regardless of which group the individual belonged to. This is a major difference with for example the approach the ICTR took thus far, with all defendants being from one group of the conflict. The Special Court’s mandate i.e. to “prosecute those who bear the greatest responsibility for atrocities committed during the conflict in Sierra Leone since 30 November 1996” is in itself a contribution of the Special Court to the development of international humanitarian law since the ICTY and ICTR at the time of their inception did not have this limitation rationae personae / prosecutorial discretion but it was however adopted in due course in view of the load of cases that had stagnated in their hands.1244 The Special Court dealt with interesting and challenging issues such as the recruitment of child soldiers, amnesty for international crimes, head of state immunity and the crime of forced marriage. Its contribution in the field of international humanitarian law has been susbstantial and its jurisprudence would certainly be relied 1244 See section above on discussion whether the wording ‘those who bear the greatest responsibility’ amounted to a jurisdictional requirement or a prosecutorial discretion (section 3.4.3 dealing with personal jurisdiction).

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upon in future cases before international criminal courts in general and the ICC in particular. In the spirit of the trend in international humanitarian law, this jurisprudence can and should be further developed. In addition to the new issues it dealt with, by applying several existing norms, the Special Court contributed in ascertaining these and thereby contributing to the certainty of the law. The objectives of the Special Court were however not entirely met but this should not in any way imply that the Special Court was unsuccessful in its mandate. Failures and setbacks could also be used to improve on certain concepts and ideas. The Special Court would be the first international criminal court to finish its caseload and thus have the opportunity to create precedence with regard to the setting up of residual mechanisms. This could be justified by its mandate to “prosecute those who bear the greatest responsibility”. This certainly limited the number of accused and speeded proceedings. The fact that this approach was later adopted by the ad hoc Tribunals is already a vital contribution per se. However, looking at the Special Court in perspective, its has not been more efficient than the other international criminal courts. By the time it is completely donewith its work, it would have existed for over 10 years and prosecuted only 10 individuals. This is certainly not an improvement from the ad hoc Tribunals that have existed for almost twice as long but have prosecuted ten times more individuals. Be that as it may, the aim of this work was not to assess the successes and failures of the Special Court as an institution per se but rather to assess its contribution to the development of international humanitarian law. Hence not every single issue that was discussed at the Special Court is contained in this work but rather only those that the author assessed as having had an impact on the development of international humanitarian law. One of the clear objectives of the international community in establishing the Special Court, was the intention to invigorate international humanitarian law. This has been achieved through the jurisprudence discussed above. Generally, the Special Court has contributed in setting out the events that took place during the conflict. This in itself is crucial to the victims since they would be forgotten. The evidence and testimony gathered during the trials guarantee the truth of events and prevent any later attempts ro repudiate these facts. With regard to the objective of contributing to the development of the Sierra Leonean judicial system, this objective has not been achieved. This could be justified by several factors including the fact that the nationals who were trained at the Special Court have sought better paid jobs outside of the country. Further, as von Braun points out, the structure of the Special Court differed from that of East Timor Special Panels, which were part of the reconstruction strategie conceived by the UN for East Timor.1245 However, recent attempts have been made to train local police in in1245 Cf. Leonie von Braun, Internationalisierte Strafgerichte, Eine Analyse der Strafverfolgung schwerer Menschenrechtsverletzungen in Osttimor, Sierra Leone und Bosnien-Herzegovina, supra note 124, pp. 330 – 332.

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vestigation techniques as well as protection of witnesses. These could potentially lead to positive results vis-à-vis the objective of developing the Sierra Leonean judicial system. The contribution of the Special Court to the development of international humanitarian law is therefore to be recognized and lauded. In as much as it is hoped that there should not be another opportunity to create an international criminal court to deal with heinous crimes committed during an armed conflict, a realistic approach would be, if and when such an opportunity reoccurs, to consider the jurisprudence and experiences of the Special Court.

German Summary

Der Beitrag vom Sondergerichtshof für Sierra Leone zu der Entwicklung von Völkerrecht Der Krieg in Sierra Leone dauerte über zehn Jahre und war von unbeschreiblicher Brutalität, welches durch schwere Verbrechen gegen die Zivilbevölkerung gekennzeichnet wurde. Dieser Krieg wurde von mehreren Parteien geführt, darunter auch internationale Parteien. Die Beteiligten auf nationaler Ebene waren die Revolutionary United Front (RUF), die Armed Forces Revolutionary Council (AFRC) und die Civil Defence Force (CDF). Auf internationaler Ebene gab es die Beteiligung von Britischen Soldaten und ECOMOG Soldaten, die hauptsächlich aus Nigeria stammten.1246 Das zieht natürlich die Frage auf sich ob der Konflikt – wie der Gerichtshof fand – tatsächlich ein nicht internationaler Konflikt war. Der Bürgerkrieg ist berüchtigt geworden durch seine systematischen Verstümmelungen, Entführungen, sexuelle Gewalt, die Ermordung von Zivilisten sowie die Ausbeutung der Diamantminen, um den Krieg zu finanzieren. In dieser Arbeit wird festgestellt, dass der Konflikt – zumindest teilweise – ein internationaler Konflikt war. Der Sondergerichtshof für Sierra Leone (Special Court for Sierra Leone [nachfolgend “Special Court”]) wurde als Antwort auf den Bürgerkrieg und die darin massenhaft begangenen schweren Misshandlungen an der Zivilbevölkerung durch einen völkerrechtlichen Vertrag, nach dem Lomé Friedensabkommen von 1999, in Freetown, Sierra Leone, gegründet, wo der SCSL auch seinen Sitz hat1247. Der Special Court ist 2002 durch ein Abkommen zwischen der Regierung von Sierra Leone und der Organisation der Vereinten Nationen (nachfolgend “UN”) nach einer Bitte des Staatschefs von Sierra Leone, Ahmed Tejan Kabbah, und der Sicherheitsrat-Resolution 1350 (2000) von 14. August 20001248 zufolge, eingerichtet worden.1249 Der Ge1246 Vgl. Adekeye Adebajo, Building Peace in West Africa: Liberia, Sierra Leone, and Guinea Bissau, Lynne Rienner, Boulder Colorado, 2002, S. 87 – 93. 1247 Siehe Michael Bohlander / Renate Winter, Internationalisierte Strafgerichte auf nationaler Ebene-Kosovo, Kambodscha, Sierra Leone und Timor Leste, in: Stefan Kirsch (Hrsg.), Internationale Strafgerichtshöfe, 1 Aufl. 2005, S. 261 ff. 1248 Abgedruckt in Ambos / Othman (Hrsg.), New Approaches in International Criminal Justice: Kosovo, East Timor, Sierra Leone and Cambodia, Max-Planck-Institut für ausländisches und internationales Strafrecht, Freiburg i. Br. 2003, S. 250 ff.; vgl. auch http: //www.scsl.org. 1249 Am 12. Juni 2000 hat Präsident Kabbah einen Brief an die UN geschickt, mit der Bitte um ihre Unterstützung bei der Erstellung eines Gerichtshofes um die Täter des Konfliktes in

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richtshof beruht somit auf einem bilateralen völkerrechtlichen Vertrag zwischen einer internationalen Organisation und einem Staat, und nicht allein auf einer Resolution des UN-Sicherheitsrats. Die Einrichtung des Gerichtshofes durch ein Abkommen zwischen einem souveränen Staat und der UN hat die Grundlage für die Beschreibung des Gerichtshofes als ein “hybrides Tribunal” gelegt. Dieser Gerichtshof bot eine vollkommen neue juristische Variante gegenüber den ad hoc Tribunalen, die durch den UN Sicherheitsrat eingerichtet worden sind, um die Täter aus Ex-Jugoslawien und Ruanda abzuurteilen. Der Special Court stellt weiterhin eine neue Variante der internationalen Gerechtigkeit dar, die als “gemischt” (Mixed) oder “hybrid tribunal” bezeichnet wird1250, welches das erste “Hybridgericht” in der Geschichte des Völkerstrafrechts darstellt. Das Mandat des Special Court befähigt den Gerichtshof Personen zu verfolgen, welche die größte Verantwortlichkeit tragen (“who bear the greatest responsibility”) im Gegensatz zu denen, die die Verantwortlichkeit („who bear responsibility“) für die getätigten Gräueltaten tragen, die während der Konflikte nach dem verfehlten Friedensabkommen (Abidjan Peace Accord) von 19961251 verübt worden sind. An sich ist die beschränkte Verantwortlichkeit ein wichtiger Beitrag des Special Courts, da die Internationalen Tribunale für das frühere Jugoslawien [nachfolgend: ICTY] und für Ruanda [nachfolgend: ICTR] bei ihrer Gründung diese Einschränkung rationae materiae nicht hatten. Diese wurde zu einem späteren Zeitpunkt eingeführt. UN-Sicherheitsrats Beschlüsse 1503 (2003) vom 28. August 2003 und 1534 (2004) vom 26. März 2004 zufolge, sollten ICTY und ICTR alle ihre Prozeduren in erster Instanz bis Ende 2008 und alle Arbeiten bis 2010 abschließen. Diese Prozedurziele wurden zeitlich nicht erreicht, wofür es verschiedene Gründe gibt, denen wir aber nicht nachgehen werden, da diese über den Rahmen dieser Arbeit hinausgehen. Die Zuständigkeit und die Prozedur sind im Statut und in den Verfahrens- und Beweisregeln (Rules of Procedure and Evidence, RPE) geregelt, die dem Abkommen hinzugefügt worden sind. Diese sind von den Richtern geändert und entworfen worden.1252 Das SCSL-Statut gestattet insbesondere die Verfolgung der Verbrechen gegen die Menschlichkeit, Verletzungen des Art. 3 in Verbindung mit den Genfer

Sierra Leone aburteilen zu können. Am 14. August 2000 hat der UN Sicherheitsrat eine Resolution 1315 erlassen mit der Bitte an den Generalsekretär, Erkundigungen über die Möglichkeiten für die Einrichtung eines Gerichtshofes einzuholen. Dieser Gerichtshof ist gegründet worden, nachdem der UN Sicherheitsrat und die Regierung Sierra Leones am 16. Januar 2002 ein zweiseitiges Abkommen unterzeichnet haben. 1250 Siehe Kai Ambos, Internationales Strafrecht, oben Fn. 22, § 6, mn. 44. 1251 SCSL-Statut , Art. 1; Statut des ICTR, Art. 1; Statut des ICTY, Art. 1. 1252 Die Verfahrens- und Beweisregeln (“Rules of Procedure and Evidence”, RPE) des Special Court sind auf die des ICTR bezogen worden. Sie sind am 01. August 2003 geändert worden.

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Konventionen und Zusatzprotokollen, andere schwerwiegende Verletzungen des internationalen humanitären Rechtes sowie Verstöße gegen das nationale Recht Sierra Leones. Hierbei wurde der Special Court eingeschränkt und darf seine Gerichtsbarkeit nur für Verbrechen ausüben, die in Art. 5 SCSL-Statut aufgeführt worden sind. Bestraft werden können Verbrechen die sich auf der Prevention of Cruelty to Children Act von 1926 und Verbrechen die nach dem Malicious Damage Act von 1861 beruhen. Das erste Gesetz stellt den sexuellen Missbrauch von Mädchen unter 14 Jahren unter Strafe, wie auch die Entführung zwecks sexueller Ausbeutung. Der Special Court hat sich aber entschieden keine von diesen nationalen Verbrechenskategorien zu verfolgen. Andererseits hat der Special Court keine Zuständigkeit über das Verbrechen des Völkermordes. Dieses Fehlen an Zuständigkeit bezüglich Verbrechen des Völkermordes sei einfach zu erklären, da bei der Errichtung des Special Courts keine Beweise vorhanden waren, dass die Tötungen gezielt – mit dem Vorsatz der Vernichtung – gegen eine bestimmte nationale, ethnische oder religiöse Bevölkerungsgruppe waren.1253 Demzufolge war der Special Court in der Lage eine entscheidende Rolle in der Entwicklung vom Völkerrecht zu übernehmen. Diese umfassende Arbeit stellt den Beitrag vom Special Court zu der Entwicklung von humanitärem Völkerrecht deutlich dar. In dieser Hinsicht hat der Special Court durch seine Besonderheiten, z. B. die Gerichtsbarkeit über Kinder im Alter von 15 Jahren;1254 die Amnestie Regelung;1255 eine gemischte Kammer mit internationale und nationale Richtern,1256 die Möglichkeit gegeben einen wichtigen Beitrag zu leisten. Diese Arbeit untersucht ob der Special Court diese Möglichkeit ausgenutzt hat. Dabei kann dieser Beitrag in verschiedenen Formen geleistet werden. Dieses geschah durch die Konsolidierung der bestehenden Rechtsprechung, deren Ausbau eine Zeichnung für die Entwicklungstendenz des Völkerrechts ist. Der Special Court hat auch neue bisher nicht bestandene Rechtsprechungen hervorgebracht. Um den Beitrag des Special Court objektiv zu betrachten ist es notwendig, zuerst die politischen / historischen Kontexte der Entstehung des Special Courts zu gliedern (Kapitel 2). Nach dieser Hintergrundinformation stellt der Verfasser die Einrichtung, die Gerichtsbarkeit und Organisation – mit Hilfe eines Strukturschaubilds – des Special Courts dar (Kapitel 3). Im Anschluss darauf beschäftigt sich der Verfasser mit der Rechtsprechung des Special Courts bezüglich Verbrechen gegen die Menschlichkeit [crimes against humanity] (Kapitel 4); Kriegsverbrechen [war crimes] (Kapitel 5); andere schwere Verstöße gegen das humanitäre Völkerrecht [other serious violations of international humanitarian law] (Kapitel 6); Straftaten

1253 Siehe auch Antje Trittin / Norman Weiß, Das Sondergericht in Sierra Leone, in MRM – Menschen Rechts Magazine, Heft 3, 2003, S. 173 – 182. 1254 Art. 7, SCSL Statute. 1255 Art. 10, SCSL Statute. 1256 Art. 12, SCSL Statute.

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unter Sierra Leonischem Recht [crimes under Sierra Leonean law] (Kapitel 7); und die Hinterlassenschaft [legacy] des Special Courts (Kapitel 8). Im Allgemeinen sollte der Beitrag des Special Courts auf Basis einer quantitativen Analyse stattfinden, welche beinhaltet wie viele Leute verurteilt worden sind, denn dann würde diese Analyse negativ ausfallen. Dennoch, kann eine Analyse des Beitrags des Special Court nur auf Basis der Qualität der Rechtsprechung stattfinden und diese würde dann positiv ausfallen. Im Laufe seines Bestehens hat sich der Special Court mit interessanten und schwierigen Themen auseinandergesetzt, wie zum Beispiel die Rekrutierung von Kindersoldaten, die Immunität von Staatschefs, die Attacke auf Blauhelme, Amnestie für internationale Verbrechen und Zwangsheirat. In dieser Hinsicht ist die Rechtsprechung des Special Courts innovativ, da viele Fälle zum ersten Mal in der Geschichte von einem internationalen Strafgerichtshof verhandelt wurden. Diese Rechtsprechung konnte von anderen internationalen Strafgerichtshöfen angewendet werden, insbesondere beim Internationalen Strafgerichtshof (“IStGH”). Die Rechtsprechung stellt eine Entwicklungstendenz des Völkerrechts da. Nichtsdestotrotz wäre es eine irreführende Darstellung, wenn die Erfolgslosigkeit des Special Courts in mancher Hinsicht nicht angesprochen werden würde. Ein Beispiel für einen solchen Misserfolg ist die Zuständigkeit des Special Courts über Kinder die unter 15 Jahre alt sind. Das Statut sah sogar vor, dass die Kammer bei der strafrechtlichen Verfolgung von Kindern besondere Maßnahmen ergreifen kann, anstatt eine Freiheitsstrafe zu verhängen.1257 Zugegebenermaßen wünscht man sich, dass es keine Kinder gibt, die Teil von Kampfhandlungen sind, doch leider fällt die Realität ganz anders aus, weswegen das humanitäre Völkerrecht diesbezüglich weiterentwickelt werden musste. Die Entscheidung des Special Courts diese Zuständigkeit nicht zu nutzen, ist eine verpasste Angelegenheit, die einen erheblichen Beitrag zu der Entwicklung von Völkerrecht beitragen könnte. Dennoch konnte man diese Untätigkeit und diesen Rückschlag als eine Lektion für die Zukunft ansehen, damit die gleichen Fehler sich nicht wiederholen. Des Weiteren ist es zu bedauern, dass der Special Court keine Straftaten nach Sierra Leonischem Recht verfolgt hat. Da diese Gerichtsbarkeit über – manche – Straftaten in nationalem Recht, gerade eine Besonderheit des Special Courts als ‘gemischtes Tribunal’ bietet, wäre es für die Entwicklung des humanitären Völkerrechts von großer Bedeutung. Der Special Court wird der erste Gerichtshof sein, der alle seine Fälle zu Ende bringt. Dadurch bekommt der Special Court die Gelegenheit eine Präzedenz zu setzen. Dieses Gelingen könnte durch das begrenzte Mandat (persons with the greatest responsibility) begründet werden. Die begrenzte Zahl der Angeklagten hat natürlich zu einem relativ zügigen Prozess geführt. Wie schon oben erwähnt, ist die Tatsache, dass die ad hoc Tribunale diese Herangehensweise übernommen haben, schon als 1257

Art. 7, SCSL Statute.

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wichtiger Beitrag des Special Courts zu betrachten und ein Teil des Erfolgs. Allerdings muss gesagt werden, dass eine genaue Betrachtung des Special Courts d. h. die Jahre der Existenz und die Zahl der Angeklagten, diesen Erfolg relativiert. Am Ende hätte der Special Court einen Zeitraum von knapp zehn Jahren gebraucht, um lediglich zehn Personen strafrechtlich zu verfolgen. Das ist ein sehr nüchternes Ergebnis im Vergleich zum ICTY, wo zum Beispiel in einen Zeitraum von 17 Jahren 125 Personen verurteilt worden sind. Eine weitere Zielvorgabe der internationalen Gemeinschaft bei der Gründung des Special Courts war die Stärkung des Völkerrechts. Dieses Ziel ist in vieler Hinsicht durch die oben erwähnte Rechtsprechungen umgesetzt worden. Des Weiteren hat der Special Court dazu beigetragen, dass man die Ereignisse während der Konflikte sorgfältig dokumentiert hat. Für die Opfer liegt viel daran, dass ihr Leid und ihr Schmerz in der Zukunft nicht in Vergessenheit geraten. Diese Arbeit kommt zu dem Ergebnis, dass der Special Court einen mäßigen Beitrag zu der Entwicklung des humanitären Völkerrechts geleistet hat. Es ist zu erwarten und zu hoffen, dass der IStGH und andere internationale Gerichtshöfe dieser Rechtsprechung folgen und darüber hinaus diese auch weiterentwickeln werden.

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Special Court Judgments, Decisions and other Documents 1. Appeal Judgments (A) (chronological) SCSL, The Prosecutor v. Alex Tamba Brima, Ibrahim Bazzy Kamara and Santigie Borbor Kanu, Case No. SCSL-2004-16-A, Appeal Judgment, 22 February 2008. SCSL, The Prosecutor v. Moinina Fofana and Allieu Kondewa, Case No. SCSL-04-14-A, Appeal Judgment, 28 May 2008. SCSL, The Prosecutor v. Issa Sesay, Morris Kallon, Augustine Gbao, Case No. SCSL-04-15-A, Appeal Judgment, 26 October 2009.

2. Trial Judgments (T) (chronological) SCSL, The Prosecutor v. Alex Tamba Brima, Ibrahim Bazzy Kamara and Santigie Borbor Kanu, Case No. SCSL-04-16-T, Judgment, 20 June 2007. SCSL, The Prosecutor v. Alex Tamba Brima, Ibrahim Bazzy Kamara and Santigie Borbor Kanu, Case No. SCSL-04-16-T, Sentencing Judgment, 19 July 2007. SCSL, The Prosecutor v. Moinina Fofana and Allieu Kondewa, Case No. SCSL-04-14-T, Judgment, 2 August 2007. SCSL, The Prosecutor v. Moinina Fofana and Allieu Kondewa, Case No. SCSL-04-14-T, Sentencing Judgment, 9 October 2007. SCSL, The Prosecutor v. Isaa Sesay, Moris Kallon, Augustine Gbao, Case No. SCSL-04-15-T, Judgment, 2 March 2009. SCSL, The Prosecutor v. Isaa Sesay, Moris Kallon, Augustine Gbao, Case No. SCSL-04-15-T, Sentencing Judgment, 8 April 2009. SCSL, The Prosecutor v. Charles Ghankay Taylor, Case No. SCSL-03-1-T, Judgment Summary, 26 April 2012.

3. Appeal Decisions (Decision on Interlocutory) (chronological) SCSL, The Prosecutor v. Morris Kallon and Brima Bazzy Kamara, Cases No. SCSL-2004-15AR72(E) and SCSL-2004-16-AR72(E), Appeals Chamber Decision on Challenge to Jurisdiction: Lomé Accord Amnesty, 13 March 2004. SCSL, The Prosecutor v. Samuel Hinga Norman, Case No. SCSL-2004-14-AR72(E), Appeals Chamber Decision on Preliminary Motion Based on Lack of Jurisdiction (Judicial Independence), 13 March 2004.

308

Special Court Judgments, Decisions and other Documents

SCSL, The Prosecutor v. Moinina Fofana and Allieu Kondewa, Case No. SCSL-04-14-AR72 (E), Appeals Chamber Decision on Preliminary Motion on Lack of Jurisdiction – Nature of the Armed Conflict, 25 May 2004. SCSL, The Prosecutor v. Moinina Fofana and Allieu Kondewa, Case No. SCSL-04-14-AR72 (E), Appeals Chamber Decision on Preliminary Motion on Lack of Jurisdiction – Illegal Delegation of Powers by Sierra Leone, 25 May 2004. SCSL, The Prosecutor v. Charles Ghankay Taylor, Case No. SCSL-2003-01-I, Appeals Chamber Decision on Immunity from Jurisdiction, 31 May 2004. SCSL, The Prosecutor v. Samuel Hinga Norman, Case No. SCSL-2004-14-AR72(E), Appeals Chamber Decision on Preliminary Motion Based on Lack of Jurisdiction (child recruitment), 31 May 2004. SCSL, The Prosecutor v. Charles Ghankay Taylor, Case No. SCSL-2003-01-R72, Appeals Chamber Decision on Urgent Defence Motion against Change of Venue, 29 May 2006.

4. Decisions (chronological) SCSL, The Prosecutor v. Charles Ghankay Taylor, Case No. SCSL-03-01-I, Decision Approving the Indictment and Order for Non-Disclosure, 7 March 2003. SCSL, The Prosecutor v. Moris Kallon, Case No. SCSL-2003-07-PT, Decision on the Prosecutor’s Motion for Immediate Protective Measures for Witnesses and Victims and for NonPublic Disclosure, 23 May 2003. SCSL, The Prosecutor v. Morris Kallon, Case No. SCSL 03-07, Decision on Constitutionality and Lack of Jurisdiction, 24 November 2003. SCSL, The Prosecutor v. Norman, Fofana and Kondewa, Case No. SCSL-2003-12-PT, Decision and Order on Prosecution Motions for Joinder, 27 January 2004. SCSL, The Prosecutor v. Moinina Fofana and Allieu Kondewa, Case No. SCSL-04-14-T, Decision on the Preliminary Defence Motion on the Lack of Personal Jurisdiction Filed on Behalf of the Accused Fofana, 3 March 2004. SCSL, The Prosecutor v. Norman, Fofana and Kondewa, Case No. SCSL-04-14-T, Decision on Motions for Judgment of Acquittal Pursuant to Rule 98, 21 October 2005. SCSL, The Prosecutor v. Alex Tamba Brima, Ibrahim Bazzy Kamara and Santigie Borbor Kanu, Case No. SCSL-04-16-T, Decisions on Defence Motions for Judgment of Acquittal Pursuant to Rule 98, 31 March 2006. SCSL, The Prosecutor v. Charles Ghankay Taylor, Case No. SCSL-03-01-PT, President of the Special Court Order Changing Venue of Proceedings, 19 June 2006. SCSL, The Prosecutor v. Isaa Sesay, Moris Kallon, Augustine Gbao, Case No. SCSL-04-15-T, Oral Rule 98 Decision, Transcript of 25 October 2006. SCSL, The Prosecutor v. Sam Hinga Norman, Moinina Fofana and Allieu Kondewa, Case No. SCSL-04-14-T, Decision on Registrar’s Submission of Evidence of Death of Accused Samuel Hinga Norman and Consequential Issues, 21 May 2007.

Special Court Judgments, Decisions and other Documents

309

5. Indictments (chronological) SCSL, The Prosecutor v. Foday Sankoh, Case No. SCSL-2003-02-I, Indictment, 3 March 2003. SCSL, The Prosecutor v. Alex Tamba Brima, Case No. SCSL-2003-06-I, Indictment, 7 March 2003. SCSL, The Prosecutor v. Charles Ghankay Taylor, Case No. SCSL-2003-01-PT, Indictment, 7 March 2003. SCSL, The Prosecutor v. Morris Kallon, Case No. SCSL-2003-07-I, Indictment, 7 March 2003. SCSL, The Prosecutor v. Sam Bokarie, Case No. SCSL-2003-04-I, Indictment, 7 March 2003. SCSL, The Prosecutor v. Samu Hinga Norman, Case No. SCSL-2003-08-I, Indictment, 7 March 2003. SCSL, The Prosecutor v. Issa Sesay, Case No. SCSL-2003-05-I, Indictment, 10 March 2003. SCSL, The Prosecutor v. Johny Paul Koroma, Case No. SCSL-2003-03-I, Indictment, 10 March 2003. SCSL, The Prosecutor v. Augustin Gbao, Case No. SCSL-2003-09-I, Indictment, 16 April 2003. SCSL, The Prosecutor v. Ibrahim Bazzy Kamara, Case No. SCSL-2003-10-I, Indictment, 28 May 2003. SCSL, The Prosecutor v. Allieu Kondewa, Case No. SCSL-2003-12-I, Indictment, 26 June 2003. SCSL, The Prosecutor v. Moinina Fofana, Case No. SCSL-2003-11-I, Indictment, 26 June 2003. SCSL, The Prosecutor v. Santigie Borbor Kanu, Case No. SCSL-2003-PT, Indictment, 16 September 2003. SCSL, The Prosecutor v. Brima, Kamara and Kanu, Case No. SCSL-2004-16-PT, Further Amended Consolidated Indictment, 18 February 2005. SCSL, The Prosecutor v. Issa Sesay, Morris Kallon, Augustine Gbao, Case No. SCSL-200415-PT, Amended Indictment, 2 August 2006. SCSL, The Prosecutor v. Charles Ghankay Taylor, Case No. SCSL-03-01-PT, Second Amended Indictment, 29 May 2007. SCSL, The Prosecutor v. Sesay, Kallon and Gbao, Case No. SCSL-2004-15-PT, Corrected Amended Consolidated Indictment.

ICTY Judgments, Decisions and Indictments 1. Appeal Judgments (A) (chronological) ICTY, The Prosecutor v. Tadić, Case No. IT-94-I, Appeal Judgment, 15 July 1999. ICTY, Prosecutor v. Tadic, Case No. IT-94-1-A and IT-94-1-Abis, Judgement in Sentencing Appeals, 26 January 2000. ICTY, The Prosecutor v. Aleksovski, Case No. IT-95-14 / I-A, Appeal Judgment, 24 March 2000. ICTY, The Prosecutor v. Delalić et al., Case No. IT-96-21-A, Appeal Judgment, 20 February 2001. ICTY, The Prosecutor v. Kunarac et al., Case No. IT-96-23 & IT-96-23 / 1-A, Appeal Judgment, 12 June 2002. ICTY, The Prosecutor v. Krnojelac, Case No. IT-97-25-A, Appeal Judgment, 17 September 2003. ICTY, The Prosecutor v. Vasiljević, Case No. IT-98-32-A, Appeal Judgment, 25 February 2004. ICTY, The Prosecutor v. Blaškić, Case No. IT-95-14-A, Appeal Judgment, 29 July 2004. ICTY, The Prosecutor v. Kordić and Čerkez, Case No. IT-95-14 / 2-A, Appeals Judgment, 17 December 2004. ICTY, The Prosecutor v. Kvočka et al., Case No. IT-98-30 / 1-A, Appeal Judgment, 28 February 2005. ICTY, The Prosecutor v. Stakić, Case No. IT-97-24-A, Appeal Judgment, 22 March 2006. ICTY, The Prosecutor v. Galić, Case No. IT-98-29-A, Appeal Judgment, 30 November 2006. ICTY, The Prosecutor v. Strugar, Case No. IT-01-42-A, Appeal Judgment, 17 July 2008. ICTY, The Prosecutor v. Martić, Case No. IT-95-11-A, Appeal Judgment, 8 October 2008. ICTY, The Prosecutor v. Krajisnik, Case No. IT-00-39-A, Appeal Judgment, 17 March 2009. ICTY, The Prosecutor v. D. Milošević, Case No. IT-98-29 / 1-A, Appeal Judgment, 12 November 2009.

2. Judgments (T) (chronological) ICTY, The Prosecutor v. Erdemović, Case No. IT-96-22-T, Sentencing Judgment, 29 November 1996. ICTY, The Prosecutor v. Tadić, Case No. IT-94-I-T, Opinion and Judgment, 7 May 1997.

ICTY Judgments, Decisions and Indictments

311

ICTY, The Prosecutor v. Delalić et al., Case No IT-96-21-T, Judgment, 16 November 1998. ICTY, The Prosecutor v. Furundzija, Case No. IT-95-17 / 1-T, Judgment, 10 December 1998. ICTY, The Prosecutor v. Aleksovski, Case No. IT-95-14 / 1, Judgment, 25 June 1999. ICTY, The Prosecutor v. Jelisić, Case No. IT-95-10-T, Judgment, 14 December 1999. ICTY, The Prosecutor v. Kupreškić, Case No. IT-95-16-T, Judgment, 14 January 2000. ICTY, The Prosecutor v. Blaškić, Case No. IT-95-14-T, Judgment, 3 March 2000. ICTY, The Prosecutor v. Kunarac et al., Case No. IT-96-23-T & IT-96-23 / 1-T, Judgment, 22 February 2001. ICTY, The Prosecutor v. Kordić and Čerkez, Case No. IT-95-14 / 2, Judgment, 26 February 2001. ICTY, The Prosecutor v. Krstić, Case No. IT-98-33-T, Judgment, 2 August 2001. ICTY, The Prosecutor v. Kvocka et al., Case No. IT-98-30 / 1-T, Judgment, 2 November 2001. ICTY, The Prosecutor v. Krnojelac, Case No. IT-97-25-T, Judgment, 15 March 2002. ICTY, The Prosecutor v. Vasiljević, Case No. IT-98-32-T, Judgment, 29 November 2002. ICTY, The Prosecutor v. Naletilić and Martinović, Case No. IT-98-34-T, Judgment, 31 March 2003. ICTY, The Prosecutor v. Stakić, Case No. IT-97-24-T, Judgment, 31 July 2003. ICTY, The Prosecutor v. Galić, Case No. IT-98-29-T, Judgment, 5 December 2003. ICTY, Prosecutor v. Dragan Nikolic, Case No. IT-94-2-S, Sentencing Judgment, 18 December 2003. ICTY, The Prosecutor v. Brđanin, Case No. IT-99-36, Judgment, 1 September 2004. ICTY, The Prosecutor v. Blagojević and Jokić, Case No. IT-02-60-T, Judgment, 17 January 2005. ICTY, The Prosecutor v. Limaj, Bala and Musliu, Case No. IT-03-66-T, Judgment, 20 November 2005. ICTY, The Prosecutor v. Momir Nikolic, Case No. IT-02-;60 / 1-A, Judgment on Sentencing Appeal, 8 March 2006. ICTY, The Prosecutor v. Orić, Case No. IT-03-68, Judgment, 30 June 2006. ICTY, The Prosecutor v. Martić, Case No-IT-95 – 11, Judgment, 12 June 2007. ICTY, The Prosecutor v. D. Milošević, Case No. IT-98-29 / 1-T, Judgment, 12 December 2007. ICTY, The Prosecutor v. Haradinaj et al., Case No. IT- 04-84, Judgment, 3 April 2008. ICTY, The Prosecutor v. Popovic et al., Case No. IT-05-88-T, Judgment, 10 June 2010. ICTY, The Prosecutor v. Gotovina et al., Case No. IT-06-90-T, Judgment, 15 April 2011.

312

ICTY Judgments, Decisions and Indictments 3. Appeal Decisions (chronological)

ICTY, The Prosecutor v. Tadić, Case No. IT-94-1-AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995. ICTY, The Prosecutor v. Strugar et al., Case No. IT-01-42-AR72, Decision on Interlocutory Appeal, 22 November 2002.

4. Decisions (T) ICTY, The Prosecutor v. Kordić and Čerkez, Case No.IT-95 – 14, Decision on the Joint Defence Motion, 2 March 1999.

5. Indictments (chronological) ICTY, The Prosecutor v. Mrkšić, Radić and Šljivančanin, Case No. IT-95-13-R61, Review of the Indictment pursuant to Rule 61, 3 April 1996. ICTY, The Prosecutor v. Karadžić, Case No. IT-95-5 / 18-PT, Third Amended Indictment, 27 February 2009.

ICTR Judgments and Indictments 1. Appeal Judgments (A) (chronological) ICTR, The Prosecutor v. Akayesu, Case No. ICTR-96-4-A, Appeal Judgment, 1 June 2001. ICTR, The Prosecutor v. Kayishema and Ruzindana, Case No. ICTR-95-1-A, Appeal Judgment, 1 June 2001. ICTR, The Prosecutor v. Rutaganda, Case No. ICTR-96-3-A, Appeal Judgment, 26 May 2003. ICTR, The Prosecutor v. Ntakirutimana and Ntakirutimana, Cases Nos. ICTR-97-10-A and ICTR-97-;14-A, Appeal Judgment, 13 December 2004. ICTR, The Prosecutor v. Nahimana, Barayagwiza and Ngeze, Case No. ICTR-99-52-A, Appeal Judgment, 28 November 2007. ICTR, The Prosecutor v. Seromba, Case No. ICTR-2001-66-A, Appeal Judgment, 12 March 2008.

2. Judgments (T) (chronological) ICTR, The Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Judgment, 2 September 1998. ICTR, The Prosecutor v. Kayishema and Ruzindana, Case No. ICTR-95-1-T, Judgment, 21 May 1999. ICTR, The Prosecutor v. Rutaganda, Case No. ICTR-96-3-T, Judgment and Sentence, 6 December 1999. ICTR, The Prosecutor v. Musema, Case No. ICTR-96-13, Judgment and Sentence, 27 January 2000. ICTR, The Prosecutor v. Baglishema, Case No. ICTR-95-1A-T, Judgment, 7 June 2001. ICTR, The Prosecutor v. Ntakirutimana et al., Case No. ICTR-96-10 & ICTR-96-17-T, Judgment and Sentence, 21 February 2003. ICTR, The Prosecutor v. Semanza, Case No. ICTR-97-20-T, Judgment and Sentence, 15 May 2003. ICTR, The Prosecutor v. Niyitegeka, Case No.ICTR-96-14-T, Judgment and Sentence, 16 May 2003. ICTR, The Prosecutor v. Kajelijeli, Case No. ICTR-98-44A, Judgment, 1 December 2003. ICTR, The Prosecutor v. Kamuhanda, Case No. ICTR-99-54, Judgment, 22 January 2004. ICTR, The Prosecutor v. Rutaganira, Case No. ICTR-95-1-C, Judgment and Sentence, 14 March 2005.

314

ICTR Judgments and Indictments

ICTR, The Prosecutor v. Seromba, Case No. ICTR-2001-66, Judgment and Sentence, 13 December 2006. ICTR, The Prosecutor v. Bagosora, Kabiligi, Ntabakuze and Nsengiyumva, Case No. ICTR98-41-T, Judgment and Sentence, 18 December 2008. ICTR, The Prosecutor v. Zigiranyirazo, Case No. ICTR-01-7, Judgment, 18 December 2008.

3. Indictments ICTR, The Prosecutor v. Bagosora, Case No. ICTR-96-7-I, Amended Indictment, 12 August 1999.

Other Jurisprudence and Documents 1. International Court of Justice (chronological) ICJ, North Sea Continental Shelf Cases, Judgment of 20 February 1969, ICJ Reports 1969. ICJ, Continental Shelf case (Libyan Arab Jamahiriya v. Malta), Judgment of 3 June1985, ICJ Reports 1985. ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States), Judgment of 27 June 1986, ICJ Report 1986. ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, ICJ Reports 1996. ICJ, Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v. Belgium), Judgment of 14 February 2002.

2. International Criminal Court (chronological) Report of the Preparatory Committee on the Establishment of an International Criminal Court, A / CONF.183 / 2 / Add.1, 14 April 1998. First Report of the Prosecutor of the International Criminal Court, Mr. Luis Moreno Ocampo, to the Security Council Pursuant to UNSCR 1593(2005), 29 June 2005. ICC, The Prosecutor v. Kony, Otti, Odhiambo and Ongwen, Case No. ICC-02 / 04-01 / 05, Warrant of Arrest for Joseph Kony, Issued on 8 July 2005, as amended on 27 September 2005. Statement of the Prosecutor of the International Criminal Court, Mr. Luis Moreno Ocampo to the UN Security Council Pursuant to UNSCR 1593(2005), 14 June 2006. ICC, The Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01 / 04-01 / 06, Pre-Trial Chamber, Decision on Confirmation of Charges, 29 January 2007. ICC, The Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01 / 04-01 / 06, Pre-Trial Chamber, Decision on Confirmation of Charges, Public Redacted Version, 29 January 2007. ICC, The Prosecutor v. Katanga and Ngudjolo Chui, Case No. ICC-01 / 04-01 / 07, Pre-Trial Chamber, Decision on the Confirmation of Charges, 30 September 2008. ICC, The Prosecutor v. Katanga and Ngudjolo, Case No. 01 / 04-01 / 07-717, Pre-Trial Chamber, Decision on the Confirmation of Charges, Public Redacted Version, 30 September 2008. ICC, The Prosecutor v. Omar Hassan Ahmad Al Bashir (“Omar Al Bashir”), Case No. ICC02 / 05-01 / 09, Decision on the Prosecution’s Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir, Public Redacted Version, 4 March 2009.

316

Other Jurisprudence and Documents

ICC, The Prosecutor v. Bemba, Case No. ICC-01 / 05-01 / 08, Decision pursuant to Article 61 (7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, 15 June 2009. ICC, The Prosecutor v. Katanga and Ngudjolo Chui, Case No. ICC-01 / 04-01 / 07 OA8, Judgment on the Appeal of Mr. Germain Katanga against the Oral Decision of Trial Chamber II of 12 June 2009 on the Admissibility of the Case, 25 September 2009. ICC, The Prosecutor v. Abu Garda, Case No. ICC-02 / 05-02 / 09, Decision on the Confirmation of Charges, 8 February 2010. ICC, Situation in the Republic of Kenya, Case No. ICC-01 / 09-19-Corrigendum, Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya, 31 March 2010. ICC, The Prosecutor v. Omar Hassan Ahmad Al Bashir, Case No. ICC-02 / 05-01 / 09, Decision Informing the United Nations Security Council and the Assembly of the States Parties to the Rome Statute About Omar Al-Bashir’s Presence in the Territory of the Republic of Kenya, 27 August 2010. ICC, The Prosecutor v. Omar Hassan Ahmad Al Bashir, Case No. ICC-02 / 05-01 / 09, Decision Informing the United Nations Security Council and the Assembly of the States Parties to the Rome Statute About Omar Al-Bashir’s Recent Visit to the Republic of Chad, 27 August 2010. ICC, The Prosecutor v. Abakaer Nourain and Jerbo Jamus, Case No. ICC-02 / 05-03 / 09, Corrigendum of the ‘Decision on the Confirmation of Charges’, Public Redacted Version, 7 March 2011. ICC, The Prosecutor v. Omar Hassan Ahmad Al Bashir, Case No. ICC-02 / 05-01 / 09, Decision Informing the United Nations Security Council and the Assembly of the States Parties to the Rome Statute About Omar Al-Bashir’s Recent Visit to Djibouti, 12 May 2011. ICC, Situation in the Libyan Arab Jamahiriya, Case No. ICC-01 / 11-01 / 11-1, Decision on the “Prosecutor’s Application Pursuant to Article 58 as to Muammar Mohammed Abu Minyar Gaddafi, Saif-Al-Islam Gaddafi and Abdullah Al-Senussi”, 27 June 2011. ICC, The Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01 / 04-01 / 06, Judgment pursuant to Article 74 of the Statute, 14 March 2012.

3. Special Tribunal for Lebanon Special Tribunal for Lebanon, Case STL, Case No. STL-11-01, Doc. Ref. STL-11-01 / 1 / AC / R, 176 bis, Interlocutory Decision on the Applicable Law: Terrorism, Conspiracy, Homicide, Perpetration, Cumulative Charging with corrected front page, 16 February 2011.

4. African Court on Human and Peoples’ Rights African Court on Human and Peoples’ Rights, Michelot Yogogombaye v. The Republic of Senegal, Application No. 001 / 2008, Judgment, 15 December 2009.

Other Jurisprudence and Documents

317

5. European Court of Human Rights European Court of Human Rights, Case of Jorgic v. Germany, Application No. 74613 / 01, Judgment, 12 July 2007.

6. Inter-American Court of Human Rights Inter-American Court of Human Rights, Case of Barrios Altos v. Peru, Judgment, Merits, Series C No. 75, 14 March 2001.

7. Inter-American Commission of Human Rights Inter-American Commission on Human Rights, Juan Carlos Abella (Argentina), Case 11.137, Report Nº 55 / 97, Inter-Am. C.H.R., OEA / Ser.L / V / II.95 Doc. 7 rev. at 271 (1997).

8. Nuremberg Tribunal (chronological) International Military Tribunal, Goering and others, Judgment, 1 October 1946. Case of US v. Oswald Pohl and Others, Judgment of 3 November 1947, reprinted in Trials of War Criminals Before the Nuremberg Military Tribunals under Control Council No. 10, Vol. 5 (1997), p. 958 – 970. United States Military Tribunal at Nuremberg, re List et al., Judgment, 29 July 1948, printed in Trials of War Criminals Before the Nuremberg Military Tribunals Under Control Council Law No. 10, VIII.

9. Israel District Court of Jerusalem, Attorney-Genral of the Government of Israel v. Eichman (1961), 36 ILR 5.

10. Malaysia Federal Court of Malaysia, PP v. Koh Wah Kuan, Criminal Appeal No. 05-46-2007 (W), 23 October 2007.

11. United Kingdom (chronological) Lord Penzance’s Statement (1866), LR 1 P&D 130. United Kingdom House of Lords, Regina v. Bartle and the Commissioner of Police for the Metropolis and Others Ex Parte Pinochet, 25 November 1998. United Kingdom House of Lords, Regina v. Evans (On Appeal from a Divisional Court of the Queen’s Bench Division), 24 March 1999.

318

Other Jurisprudence and Documents 12. United States of America (chronological)

United States Supreme Court, Knote v. United States, 95 U.S. 149, 1877. United States Supreme Court, Immigration and Naturalization Service v. Jairo Jonathan EliasZacarias, 502 U.S. 478, 1992. United States v. Charles McArthur Emmanuel (a.k.a.“Chuckie Taylor”), Case No. 06-20263, Order On Defendant’s Motion To Dismiss The Indictment at 17, Belfast (S.D. Fla., filed July 5, 2007) (No. 148), 17.

13. Women’s International War Crimes Tribunal for the Trial of Japan’s Military Sexual Slavery Women’s International War Crimes Tribunal for the Trial of Japan’s Military Sexual Slavery, The Prosecutors and the Peoples of the Asia-Pacific Region v. Hirohito Emperor Showa, Ando Rikichi, Hata Shunroku, Itagaki Seishiro, Kobayashi Seizo, Matsui Iwane, Umezu Yoshijiro, Terauchi Hisaichi, Tojo Hideki, Yamashita Tomoyuki and The Government of Japan, Case No. PT-2000-1-T, Judgment, 4 December 2001.

United Nations Documents 1. United Nations Security Council Resolutions (chronological) UN Security Council Resolution ECOWAS, UN Doc. S / 24812, 16 November 1992. UN Security Council Resolution 802, Doc. S / RES / 802, 25 January 1993. UN Security Council Resolution 804, Doc. S / RES / 804, 29 January 1993. UN Security Council Resolution 808, Doc. S / RES / 808, 22 February 1993. UN Security Council Resolution 827, Doc. S / RES / 827, 25 May 1993. UN Security Council Resolution 955, Doc. S / RES / 955, 8 November 1994. UN Security Council Resolution 1244, Doc. S / RES / 1244, 10 June 1999. UN Security Council Resolution 1261, Doc. S / RES / 1261, 30 August 1999. UN Security Council Resolution 1270, Doc. S / RES / 1270, 22 October 1999. UN Security Council Resolution 1272, Doc. S / RES / 1272, 25 October 1999. UN Security Council Resolution 1289, Doc. S / RES / 1289, 24 February 2000. UN Security Council Resolution 1313, Doc. S / RES / 1313, 4 August 2000. UN Security Council Resolution 1314, Doc. S / RES / 1314, 11 August 2000. UN Security Council Resolution 1315, Doc. S / RES / 1315, 14 August 2000. UN Security Council Resolution 1346, Doc. S / RES / 1346, 30 March 2001. UN Security Council Resolution 1379, Doc. S / RES / 1379, 20 November 2001. UN Security Council Resolution 1400, Doc. S / RES / 1400, 28 March 2002. UN Security Council Resolution 1503, Doc. S / RES / 1503, 26 August 2003. UN Security Council Resolution 1534, Doc. S / RES / 1534, 26 March 2004. UN Security Council Resolution 1539, Doc. S / RES / 1539, 22 April 2004. UN Security Council Resolution 1593, Doc. S / RES / 1593, 31 March 2005. UN Security Council Resolution 1612, Doc. S / RES / 1612, 26 July 2005. UN Security Council Resolution 1664, Doc. S / RES / 1664, 29 March 2006. UN Security Council Resolution 1688, Doc. S / RES / 1688, 16 June 2006. UN Security Council Resolution 1757, Doc. S / RES / 1757, 30 May 2007. UN Security Council Resolution 1750, Doc. S / RES / 1970, 26 February 2011. UN Security Council Resolution 1973, Doc. S / RES / 1973, 17 March 2011.

320

United Nations Documents 2. United Nations General Assembly Resolutions (chronological)

Universal Declaration of Human Rights, adopted and proclaimed by UN General Assembly Resolution 217 (A)(III) of 10 December 1948. Convention on the Prevention and Punishment of the Crime of Genocide, adopted by United Nations General Assembly Resolution 260(III) A, 9 December 1948, entered into force 12 January 1951. International Covenant on Civil and Political Rights, adopted and opened for signature, ratification and accession by General Assembly Resolution 2200A(XXI) of 16 December 1966, entered into force on 21 October 1986. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted by United Nations General Assembly Resolution 39 / 46, adopted on 10 December 1984, entered into force 26 June 1987. Convention on the Safety of United Nations and Associated Personnel, UN GA Res. 49 / 59, 9 December 1994 (entry into force 15 January 1999).

3. United Nations Secretary-General Reports (chronological) Report of the Secretary-General Pursuant to Paragraph 2 of SC Resolution 808 (1993), 3 May 1993, UN Doc. S / 25704 and Add.1. Report of the Secretary General Pursuant to Paragraph 5 of Security Council Resolution 955 (1994), 13 February 1995, UN Doc. S / 1995 / 134. United Nations Secretary-General’s Bulletin on Observance by United Nations Forces of International Humanitarian Law, 6 August 1999, UN Doc. ST / SGB / 1993 / 3. Report of the Secretary General on the Establishment of a Special Court for Sierra Leone, 4 October 2000, UN Doc. S / 2000 / 915. Report of the Secretary General, The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies, 23 August 2004, UN Doc. S / 2004 / 616. Report of the Secretary General, , In-depth Study on all forms of Violence against women; 6 July 2006, A / 61 / 122 / Add.1. Report of the Secretary-General on Forced Marriage of the Girl Child, presented at the Commission on the Status of Women, 5 December 2007, UN Doc. E / CN.6 / 2008 / 4.

4. Other United Nations Documents (alphabetical) Agreement for the Prosecution of Major Criminals of the European Axis, and Establishing the Charter of the International Military Tribunal (IMT), 8 August 1945, 82 UNTS (1951). Draft Code of Crimes against the Peace and Security of Mankind, Report of the International Law Commission on Its Forty-eighth Session, UN GAOR, 5Ist Sess., Supp. No. 10, at 9, UN Doc. A / 51 / I0 (1996). International Law Commission, UN Doc. A / CN.4 / 599, 30 May 2008.

United Nations Documents

321

Letter from the President of the Security Council addressed to the Secretary General, UN Doc. S / 2000 / 1234, 22 December 2000. Peace Agreement Between the Government of Sierra Leone and the Revolutionary United Front of Sierra Leone, UN Doc. S / 1999 / 777, 12 July 1999. Report of the International Commission of Inquiry on Darfur to the United Nations SecretaryGeneral pursuant to Security Council Resolution 1564 of 18 September 2004, 25 January 2005. Report of the International Law Commission on its Forty-eighth Session, 6 May – 26 July 1996, Official Records of the General Assembly, Fifty-first session, Supplement No. 10, U.N. Doc. A / 51 / I0 (1996). Report of the Panel of Experts Appointed Pursuant to Security Council Resolution 1306 (2000), UN Doc. S / 2000 / 1195, 20 December 2000. Report on the Situation of Human Rights in Somalia, prepared by the Independent Expert of the Commission on Human Rights, Mona Rishmawi, pursuant to Commission Resolution 1996 / 57 of 19 April 1996, UN Doc. E / CN.4 / 1997 / 88, 3 March 1997. Report of the Special Rapporteur of the Commission on Human Rights on the Situation of Human Rights in the Palestinian Territories Occupied by Israel since 1967, UN Doc. A / 56 / 440, 4 October 2001. Report of the Special Rapporteur of the Commission on Human Rights on the Situation of Human Rights in the Palestinian Territories Occupied by Israel since 1967, UN Doc. E / CN.4 / 2002 / 32, 6 March 2002. Report of the Special Rapporteur on the Human Rights Situation in the Sudan, UN Doc. E / CN.4 / 2006 / 111, 11 January 2006. Report of the Sub-Commission on Prevention of Discrimination and Protection of Minorities, Minimum Humanitarian Standards: Analytical Report of the Secretary General Submitted pursuant to Commission on Human Rights Resolution 1997 / 21, UN Doc. E / CN.4 / 1998 / 87, 5 January 1998. Report on the Working Group on Arbitrary Detention, UN Doc. E / CN.4 / 1998 / 44, Annex I. Resolution 1132, U.N. Doc. S / RES / 1132, 8 October 1997. Review of the Sexual Violence Elements of the Judgments of the International Criminal Tribunal for the Former Yugoslavia, The International Criminal Tribunal for Rwanda, and the Special Court for Sierra Leone in the Light of Security Council Resolution 1820, United Nations, Department of Peacekeeping Operations, 2010. Statement made by Finland before the UN Security Council, UN Doc. S / PV.3367, 21 April 1994. United Nations Department of Peacekeeping Operations, United Nations Peacekeeping Operations: Principles and Guidelines, March 2008. United Nations Human Rights Council, Report of the Commission of Inquiry on Lebanon pursuant to Human Rights Council Resolution S-2 / 1, 23 November 2006, A / HRC / 3 / 2.

322

United Nations Documents

United Nations Office of the High Commissioner for Human Rights, Rule of Law Tools for Post-Conflict States, Maximizing the Legacy of Hybrid Courts, 2008, UN Doc. HR / PUB / 08 / 2. United Nations Transitional Administration in East Timor (UNTAET), Regulation 2000 / 15 on the Establishment of Panels with Exclusive Jurisdiction over Serious Criminal Offences, 6 June 2000. United Nations Transitional Administration in East Timor (UNTAET), Regulation 2001 / 25 on the Amendment of UNTAET Regulation No. 2000 / 11 on the Organization of Court in East Timor and UNTAET Regulation No. 2000 / 30 on the Transitional Rules of Criminal Procedure, 14 September 2001. Update to Final Report submitted by Special Rapporteur on Contemporary Forms of Slavery: Systematic Rape, Sexual Slavery and Slavery-like Practices During Armed Conflict, Economic and Social Council, Commission on Human Rights, Sub-Commission on the Promotion and Protection of Human Rights, E / CN.4 / Sub.2 / 2000 / 21, 6 June 2000.

Table of other Authorities 1. Domestic Laws (alphabetical) Cameroon Instructors Manual (1992). Code of Crimes against International Law (Völkerstrafgesetzbuch), 30 June 2002, Section 1 (Germany). Constitution of Sierra Leone (Act No. 6 of 1991), 1 October 1991. Crimes Against Humanity and War Crimes Act, enacted in 2000, Section 6. (Canada). Economic Community of West African States Six-Month Plan for Sierra Leone, 23 October 1997 – 22 April 1998, 23 October 1997 (Conakry Peace Accord). International Crimes Act of 19 June 2003 (The Netherlands). Italian Civil Code (Marriage). Law on the Establishment of Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed during the Period of Democratic Kampuchea, as adopted and amended by the Cambodian Legislature under the Constitution of Cambodia, as promulgated on 27 October 2004 (NS / RKM / 1004 / 006). Ley 26.200, enacted 13 December 2007, Official Gazette, 9 January 2007 (Argentina). Ley Orgánica del Poder Judicial (Spain). Loi No. 2005 / 015 du 29 Décembre Relative a la Lutte Contre le Trafic et la Traité des Enfants, in Official Gazette of the Republic of Cameroon, 46th Year – No Special Issue 1, 20 March 2006. Loi No. 2007-02, modifiant le Code Pénal de la République du Sénégal. Loi No. 2007-05, 12 février 2007, modifiant le Code de Procédure pénale de la République du Sénégal. Loi No. 51-18 of 5 January 1951 (France). Sierra Leone Act No. 26 of 1959, An ordinance to enable effect to be given to certain International Conventions done at Geneva on the 12th day of August, 1949 and for purposes connected therewith. Special Court Agreement (2002) Ratification Act, Supplement to the Sierra Leone Gazette Vol. CXXX. No II dated 7th March 2002. Special Court Agreement Ratification (Act No. 9 of 2002), Supplement to the Sierra Leone Gazette Vol. XXXIII No. 22, dated 25 April 2002. United Kingdom Forced Marriage (Civil Protection) Act, 2007, Part 4A. United Kingdom, International Criminal Court Act, 2001.

324

Table of other Authorities

United Kingdom Ministry of Defence, Manual of the Law of Armed Conflict, OUP, 2004. United States Air Force Pamphlet, 1976. United States Code, Title 18, 2340, 20 November 1994.

2. International Legal Instruments and Commentaries (alphabetical) African Charter on the Rights and Welfare of the Child, OAU Doc. CAB / LEG / 24.9 / 49 (1990), entered into force Nov. 29, 1999. Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, and Charter of the International Military Tribunal. London, 8 August 1945. American Convention on Human Rights (22 November 1969), OAS Treaty Series No. 36; 1144 UNTS 123; 9 ILM 99 (1969), entered into force on 18 July 1978. Charter of the United Nations, United Nations Conference on International Organization, signed on 26 June 1945, entered into force on 24 October 1945. Convention Concerning Minimum Age of Admission to Employment adopted 26 June 1973 and entered into force 19 June 1976, Geneva, General Conference of the International Labor Organization. Convention for the Protection of Human Rights and Fundamental Freedoms (4 November 1950) 213 UNTS 222; entered into force 3 September 1953. Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages, opened for signature and ratification by General Assembly resolution 1763 A (XVII) of 7 November 1962, entry into force: 9 December 1964. Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 12 August 1949, 75 U.N.T.S. 31 (entered into force 21 October 1950). Geneva Convention (II) for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 12 August 1949, 75 U.N.T.S. 85 (entered into force 21 October 1950). Geneva Convention (III) Relative to the Treatment of Prisoners of War, 12 August 1949, 75 U.N.T.S. 135 (entered into force 21 October 1950). Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War, 12 August 1949, 75 U.N.T.S. 287 (entered into force 21 October 1950). ICC Elements of Crimes, Doc. ICC-ASP / 1 / 3, adopted and entered into force 9 September 2002. ICC Regulations of the Court, Doc ICC-BD / 01-02-07, as amended on 14 June and 14 November 2007, entry into force 18 November 2007. ICC Rules of Procedure and Evidence, Doc. ICC-ASP / 1 / 3 (Part.II-A), adopted and entered into force 9 September 2002. ICRC Commentary on Protocol II of 1977 to the Geneva Conventions of 1949.

Table of other Authorities

325

ICRC Commentary to the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977. International Covenant on Civil and Political Rights (16 December 1966), United National General Assembly Resolution 2200 A (XXI), entered into force on 23 March 1976. Manual on the Law of Non-International Armed Conflict, with Commentary, International Institute of Humanitarian Law, Sanremo, 2006. The Hague Convention (II) with Respect to the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land. The Hague, 29 July 1899. The Hague Convention IV respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land. The Hague, 18 October 1907.

3. List of other Legal Authorities (alphabetical) African Charter on Human and Peoples’ Rights, adopted June 27, 1981, OAU Doc. CAB / LEG / 67 / 3 rev. 5, 21 I.L.M. 58 (1982), entered into force on 21 October 1986. African Charter on the Rights and Welfare of the Child, OAU Doc.CAB / LEG / 24.9 / 49 (1990). Cairo – Arusha Principles on Universal Jurisdiction in Respect of Gross Human Rights Offences: An African Perspective, 2001 / 2002. Cape Town Principles and Best Practices, adopted at the Symposium on the Prevention of Recruitment of Children into the Armed Forces and on Demobilization, and Social Reintegration of Child Soldiers in Africa, Cape Town, 30 April 1997. Chicago Principles on Post-Conflict Justice, International Human Rights Law Institute, Chicago, 2008. Constitutive Act of the African Union, adopted in 2000 in Lomé Summit (Togo), entered into force in 2001. Dennis Bright, Implementing the Lomé Peace Agreement, 3rd Implementation Committee Meeting, 13 May 2000. Economic Community of West African States, Six-Month Plan for Sierra Leone, 23 October 1997 – 22 April 1998. Fred L. Israel (ed.), Major Peace Treaties of Modern History 1648 – 2000, Vol. IV, 2002. Organization of the Islamist Conference, Conference of Ministers of Foreign Affairs, Res. 1 / 6EX. Host Agreement between the Government of the United Republic of Tanzania and the African Union on the Seat of the African Court on Human and Peoples Rights, in Arusha Tanzania, 31 August 2007. ICC Elements of Crimes, Article 7(1)(a), para. 1, Doc. ICC-ASP / 1 / 3, adopted and entered into force 9 September 2002.

326

Table of other Authorities

ICRC Report on the Practice of Israel, 1997, Chapter 1.3, referring to Israel Law of War Booklet, 1986, Chapter 1. Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, 25 May 2000, U.N. Doc. A / RES / 54 / 263. Oxford Reports on International Law – ICL 22 (SCSL 2004), OUP2008. Protocol Additional to the Geneva Conventions of 12 August 1949 and Relating to the Protection of Victims of International Armed Conflicts, date, 1125 UNTS 3 (entered into force on 7 December 1979). Protocol Additional to the Geneva Conventions of 12 August 1949 and Relating to the Protection of Victims of Non-International Armed Conflict, 8 June 1977, 1125 U.N.T.S. 609 (entered into force on 7 December 1978). Protocol to the African Charter on Human and People’s Rights on the Establishment of an African Court on Human and Peoples’ Rights. Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, adopted by the 2nd Ordinary Session of the Assembly of the African Union, Maputo, 11 July 2003. Regulations of the International Criminal Court (ICC-BD / 01-02-07), adoption 14.06.2007 / entered into force 18.12.2007. Report of the Commission for Reception, Truth, and Reconciliation Timor-Leste, 31 October 2005. Report of the Sierra Leone Arms Investigation, 27 July 1998. Report of the Sierra Leone Truth and Reconciliation Commission, Vol. 1, 5 October 2004. SCSL, Fourth Annual Report of the President of the Special Court for Sierra Leone, 2006 – 2007. SCSL, Report on the Special Court for Sierra Leone, Submitted by the Independent Expert Antonio Cassese, 12 December 2006. SCSL, Rules of Procedure and Evidence, Adopted on 16 January 2002, as amended on 7 March 2003, as amended on 1 August 2003, as amended on 30 October 2003, as amended on 14 March 2004, as amended on 29 May 2004, as amended 14 May 2005, as amended 13 May 2006, as amended 24 November 2006, as amended 14 May 2007, as amended 19 November 2007, as amended 27 May 2008, as amended 28 May 2010. SCSL, Second Annual Report of the President of the Special Court for Sierra Leone, January 2004 to January 2005. SCSL, Seventh Annual Report of the President of the Special Court for Sierra Leone, June 2009 to May 2010. SCSL, The Prosecutor v. Brima, Kamara and Kanu, Case No. SCSL-04-16-T, Prosecution Final Brief. SCSL, The Prosecutor v. Brima, Kamara and Kanu, Case No. SCSL-04-16-T, Trial Exhibit P32, Expert Report on the Phenomenon of Forced Marriage in the Context of the Conflict in Sierra Leone.

Table of other Authorities

327

SCSL, The Prosecutor v. Charles Ghankay Taylor, Case No. SCSL-2003-01-I, Applicant’s Motion made under protest and without waiving of Immunity accorded to a Head of State Charles Ghankay Taylor requesting that the Trial Chamber do quash the said approved indictment of 7th March 2003 of Judge Bankole Thompson and that the aforesaid purported Warrant of Arrest and Order for Transfer and detention of the same date issued by Judge Bankole Thompson of the Special Court for Sierra Leone, and all other consequential and related ORDER(S) granted thereafter by either the said Judge Bankole Thompson OR Judge Pierre Boutet on 12th June 2003 against the person of the said President Charles Ghankay Taylor be declared null and void, invalid at their inception and that they be accordingly cancelled and / OR set aside as a matter of law, 23 July 2003. SCSL, The Prosecutor v. Kallon, Case No. SCSL 03-07, Defence Final Trial Brief. SCSL, The Prosecutor v. Norman, Case No. SCSL-03-08-PT, Amicus Curiae Brief of the United Nations Children’s Fund (UNICEF) (Trial Chamber), 21 January 2004. SCSL, The Prosecutor v. Norman, Case No. SCSL-03-08-PT, Fourth Defence Preliminary Motion based on Lack of Jurisdiction (Child Recruitment). SCSL, The Prosecutor v. Sesay, Case No. SCSL-03-05, Defence Final Trial Brief. Sierra Leone Truth and Reconciliation Commission Report, 27 October 2004, Vol. 2. Slavery Convention, signed at Geneva on 25 September 1926, entry into force on 9 March 1927. Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, 7 September 1956, entry into force on 30 April 1957. Supreme Court of the British Zone of Germany, Dutch Machines Case, 13 October 1949. The UN Criminal Tribunals for Yugoslavia and Rwanda: International Justice or Show of Justice? Hearing Before the H. Comm. On Int’l Relations, 107th Cong. 20 (2002) (statement of Pierre-Richard Prosper, Ambassador – At-Large for War Crimes Issues, United States, State Department). Treaty of Nanking of 29 August 1842, between the Queen of England and the Emperor of China. Treaty of Vereeniging of 31 May 1902 between Great Britain and the Boer forces. Treaty with the Delawares, 17 September 1778. UN Convention on the Rights of the Child, 20 November 1989, UNTS 3. UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A (III). United States Department of Army, Instructions for the Government of Armies of the United States in the Field, General Orders No. 100, 24 April 1863 [Lieber Code]. United States States Department of State, Sierra Leone Country Report on Human Rights Practices for 2000, Washington D.C., 2001. Vienna Convention on the Law of Treaties, 1155 UNTS 331, 23 May 1969, entry into force 27 January 1980.

328

Table of other Authorities 4. Statutes of International Criminal Courts (alphabetical)

International Court of Justice Statute, 3 Bevans 1179; 59 Stat. 1031; T.S. 993; 39 AJIL Supp. 215 (1945). Law on the Establishment of the Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed During the Period of Democratic Kampuchea, 27 October 2004 (Doc. NS / RKM / 1004 / 006). Rome Statute of the International Criminal Court, 2187 U.N.T.S. 90 (entered into force July 1, 2002). Statute of the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Other Such Violations Committed in the Territory of Neighbouring States, UN SC Res. 955 (1994). Statute of the Special Court for Sierra Leone, annexed to the Agreement between the United Nations and the Government of Sierra Leone on the Establishment of the Special Court for Sierra Leone, Freetown, enacted on 16 January 2002. Updated Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the former Yugoslavia since 1991, UN SC Res. 1877 (2009).

Index Abidjan Peace 37, 42, 80, 231, 286 Abu Garda 178, 187, 189, 193, 316 ad hoc Tribunals 26, 28, 30, 32, 45, 47, 50, 52, 62, 64, 65, 75, 89, 90, 92, 96, 98, 101, 107, 115, 119, 123, 130, 133, 135, 144, 148, 149, 162, 164, 169, 171, 174, 176, 178, 190, 211, 266, 274, 275, 277, 282, 283 Additional Protocol II 29, 73, 144, 160, 162, 164, 171, 207, 241 Admissibility 68, 316 Afghanistan 160 AFRC 17, 36, 37, 39, 41, 43, 75, 80, 82, 84, 100, 101, 106, 108, 130, 148, 151, 153, 156, 157, 160, 161, 197, 205, 209, 218, 222, 242, 248, 250, 252, 279, 285 AMIS 17, 178, 187, 190, 191 Amnesty 37, 38, 82, 222, 226, 229, 231, 233, 236, 237, 239, 242, 246 AP II 17, 29, 30, 70, 72, 73, 99, 107, 117, 118, 136, 144, 145, 148, 161, 166, 169, 173, 184, 199, 201, 211, 214, 231, 232 Appeals Chamber 26, 28, 52, 54, 55, 57, 68, 77, 78, 83, 84, 89, 95, 98, 99, 105, 110, 112, 120, 124, 126, 130, 132, 134, 137, 139, 145, 147, 150, 152, 163, 166, 183, 192, 197, 207, 209, 212, 214, 215, 217, 218, 242, 245, 246, 249, 250, 252, 253, 258, 260, 263, 265, 267, 271, 274, 279 Attack 154, 179, 180, 186 Bemba 91, 93, 94, 97, 98, 100, 116, 247, 316 Bokarie 81 Brima 36, 37, 39, 40, 42, 75, 78, 81, 83, 92, 94, 95, 101, 109, 130, 132, 134, 152, 156, 160, 161, 165, 166, 170, 172, 205, 209, 210, 215, 218, 242, 244, 250, 252, 254, 279, 307, 326 British intervention 159

Case 26, 28, 32, 33, 35, 37, 39, 44, 50, 52, 55, 57, 68, 72, 78, 81, 84, 88, 90, 108, 112, 114, 116, 123, 126, 130, 132, 133, 138, 140, 145, 152, 154, 156, 159, 161, 162, 165, 170, 174, 178, 184, 185, 187, 189, 193, 197, 200, 201, 205, 207, 209, 215, 217, 218, 233, 239, 240, 242, 244, 248, 250, 254, 256, 258, 259, 261, 268, 273, 276, 278, 279, 307, 315, 318, 326, 327 CDF 17, 36, 41, 43, 75, 82, 84, 95, 133, 154, 166, 197, 205, 209, 217, 242, 274, 278, 279, 285 Chambers 18, 24, 27, 52, 54, 57, 59, 62, 73, 92, 94, 131, 270, 323, 328 Chicago Principles 23, 241, 325 Chui 68, 94, 96, 123, 133, 172, 189, 217, 250, 315, 316 Cofirmation of Charges 213 Common Article 3 29, 72, 73, 141, 145, 147, 148, 152, 156, 161, 162, 164, 171, 173, 206, 241, 244 Complementarity 65, 66, 68 Complementary jurisdiction 64 Confirmation of Charges 74, 94, 96, 101, 123, 133, 172, 178, 187, 189, 193, 200, 201, 210, 213, 215, 217, 250, 315, 316 Conscripting or enlisting 136, 176, 194, 198, 208 Consent 119, 121, 254, 255, 324 Crimes against humanity 30, 71 Crimes under Sierra Leonean Law 74 Customary International Law 177, 198, 208 Defence 17, 19, 32, 36, 39, 41, 44, 46, 57, 59, 62, 64, 82, 84, 90, 92, 141, 144, 147, 155, 158, 185, 197, 198, 258, 262, 267, 285, 324, 327 Defence Office 61, 62 Democratic Republic of Congo 18, 258

330

Index

Deportation 71, 111 Deterrence 275, 276 dolus specialis 170, 172 ECCC 18, 24, 119, 131, 132 ECOMOG 18, 38, 43, 69, 148, 151, 153, 155, 157, 187, 285 Elements of Crimes 74, 103, 105, 108, 113, 115, 117, 120, 122, 123, 125, 129, 167, 172, 175, 188, 189, 193, 220, 252, 324, 325 Enforced Prostitution 117, 127 Enforcement 36, 44 Enslavement 71, 107, 109 Establishment of the Special Court 28, 328 Extermination 71, 104, 105 Fofana 33, 41, 43, 44, 75, 77, 82, 84, 88, 91, 92, 96, 98, 99, 132, 133, 148, 165, 166, 169, 170, 173, 174, 205, 208, 211, 215, 217, 272, 278, 279, 307 Forced Marriage 132, 246, 249, 251, 256, 320, 323, 326 Forced Pregnancy 117, 127 Gbao 40, 57, 73, 82, 84, 89, 92, 94, 96, 103, 107, 108, 110, 117, 118, 121, 126, 130, 134, 151, 155, 159, 161, 166, 168, 170, 172, 174, 178, 185, 190, 192, 193, 197, 208, 210, 212, 214, 216, 218, 279, 307 Geneva Conventions 17, 29, 30, 70, 72, 73, 91, 136, 138, 140, 142, 144, 145, 147, 150, 155, 159, 164, 166, 169, 171, 183, 184, 189, 195, 199, 201, 212, 214, 231, 236, 238, 261, 324, 326 Genocide 18, 24, 29, 48, 65, 230, 236, 238, 257, 320, 328 Gravity 76 Head of State 39, 40, 152, 161, 256, 259, 261, 263, 265, 278, 327 Human Rights Conventions 237 ICC Statute 25, 26, 48, 53, 61, 62, 64, 65, 67, 68, 72, 73, 76, 78, 80, 87, 90, 93, 94, 104, 108, 109, 111, 112, 116, 118, 119, 123, 126, 128, 131, 132, 134, 151, 154, 164, 166, 174, 178, 181, 185, 188, 189,

207, 209, 212, 213, 216, 253, 257, 258, 264, 268, 278 ICJ 18, 107, 124, 142, 149, 150, 177, 186, 198, 199, 208, 237, 258, 261, 263, 264 ICTR 18, 19, 24, 26, 29, 32, 46, 50, 51, 59, 61, 64, 71, 73, 81, 84, 88, 90, 92, 94, 95, 98, 107, 111, 113, 116, 120, 129, 131, 133, 136, 144, 145, 162, 164, 166, 171, 173, 175, 178, 179, 191, 207, 211, 214, 250, 257, 261, 262, 264, 266, 269, 270, 273, 274, 277, 278, 282, 286, 313 ICTY 19, 24, 26, 29, 32, 44, 50, 51, 59, 61, 64, 71, 73, 75, 88, 92, 94, 96, 98, 107, 109, 121, 123, 126, 130, 133, 136, 137, 139, 145, 146, 148, 150, 155, 159, 162, 163, 165, 166, 168, 170, 172, 175, 177, 178, 183, 185, 190, 191, 195, 207, 214, 239, 247, 257, 261, 262, 264, 266, 269, 271, 273, 280, 282, 286, 289, 310 ILC 19, 96, 105, 132, 133 Immunity 25, 186, 256, 259, 261, 269, 327 Imprisonment 71, 113 Inter-American Commission on Human Rights 146, 317 Inter-American Court of Human Rights 19, 240, 317 International Crime 226 International Criminal Law Conventions 235 International Law 17, 22, 44, 47, 62, 67, 101, 113, 118, 132, 137, 138, 142, 144, 145, 160, 171, 177, 182, 186, 195, 200, 221, 223, 227, 233, 235, 237, 239, 243, 249, 257, 265, 320, 321, 323, 326 Investigations 58 Judges 27, 28, 30, 55, 56, 58, 59, 78, 83, 103, 188, 189, 251, 262, 268, 274, 278, 280 Jurisdiction 26, 32, 44, 51, 52, 62, 73, 75, 77, 89, 137, 139, 141, 143, 145, 147, 149, 155, 162, 163, 177, 183, 185, 197, 205, 207, 212, 228, 232, 233, 239, 241, 242, 244, 246, 259, 262, 265, 267, 269, 271, 272, 322, 325, 327 Kabbah 23, 25, 37, 39, 41, 79, 80, 84, 156, 158, 159, 222, 279, 285

Index Kallon 26, 28, 40, 57, 73, 81, 82, 84, 89, 92, 94, 96, 103, 107, 108, 110, 117, 118, 121, 126, 130, 134, 151, 155, 159, 161, 166, 168, 170, 172, 174, 178, 185, 190, 192, 193, 197, 208, 210, 212, 214, 216, 218, 241, 242, 244, 246, 279, 307, 327 Kamara 36, 37, 39, 40, 42, 49, 58, 75, 78, 82, 83, 92, 94, 95, 101, 109, 130, 132, 134, 152, 156, 160, 161, 165, 166, 170, 172, 205, 209, 210, 215, 218, 241, 242, 244, 250, 252, 254, 279, 307, 326 Kanu 36, 37, 39, 40, 42, 75, 77, 78, 82, 83, 92, 94, 95, 101, 109, 130, 132, 134, 152, 156, 160, 161, 165, 166, 170, 172, 205, 209, 210, 215, 218, 247, 250, 252, 254, 279, 307, 326 Katanga 68, 94, 96, 101, 123, 133, 172, 189, 217, 250, 315, 316 Kenya 91, 98, 268, 316 Kondewa 33, 41, 43, 77, 82, 84, 88, 91, 92, 96, 98, 99, 132, 133, 148, 165, 166, 169, 170, 173, 174, 205, 208, 211, 215, 217, 245, 246, 278, 279, 307 Koroma 37, 39, 41, 81 Legacy 32, 74, 75, 84, 134, 225, 230, 256, 281, 322 Liberia 20, 34, 40, 41, 43, 81, 83, 151, 152, 154, 157, 258, 262, 265, 281, 285 Lubanga 74, 150, 151, 193, 200, 201, 210, 213, 215, 217, 315, 316 Management Committee 52, 53 Murder 36, 69, 71, 102, 105 Nigeria 38, 43, 53, 81, 83, 151, 262, 285 Norman 41, 43, 51, 52, 79, 82, 84, 96, 99, 133, 147, 170, 183, 197, 205, 207, 212, 218, 287, 327 Office of the Prosecutor 20, 52, 57, 59, 61, 76, 78, 220 Other inhumane acts 72 Outrages upon personal dignity 73, 141, 164, 171, 172 Outreach Section 226, 280

331

Part of 100 Peacekeepers 44, 140, 144, 154, 179, 180, 186, 192 Personal jurisdiction 74 Pillage 73, 164, 173 Policy Paper 76, 77 Pre-Trial Chamber 20, 76, 93, 96, 101, 116, 123, 133, 172, 189, 191, 193, 200, 201, 215, 315 Primary jurisdiction 64 Princeton Principles 241 Prosecutor 25, 28, 32, 33, 35, 37, 39, 44, 49, 52, 55, 57, 59, 68, 72, 79, 81, 84, 88, 90, 108, 112, 114, 116, 123, 126, 130, 132, 133, 145, 147, 148, 150, 152, 155, 156, 162, 165, 170, 172, 174, 178, 179, 183, 185, 187, 189, 193, 197, 200, 201, 205, 207, 209, 215, 217, 218, 233, 239, 242, 244, 248, 250, 253, 256, 259, 261, 262, 264, 267, 268, 272, 276, 278, 279, 307, 315, 316, 326, 327 Prosecutorial 77 Rape 36, 69, 71, 90, 117, 119, 126, 322 Registrar 27, 28, 51, 59, 60, 63, 82, 225 Registry 52, 59, 62 Retribution 274 RPE 20, 29, 56, 59, 61, 121, 197, 205, 262, 277, 278, 286 RUF 20, 35, 37, 39, 44, 57, 65, 69, 73, 74, 80, 82, 84, 108, 110, 117, 125, 126, 130, 148, 151, 152, 154, 158, 161, 164, 166, 168, 172, 183, 187, 209, 215, 216, 218, 221, 222, 231, 242, 279, 285 Sankoh 37, 39, 57, 65, 81, 82, 187, 221, 222, 242 SCSL Statute 21, 27, 30, 50, 52, 55, 56, 58, 59, 61, 64, 67, 70, 72, 73, 75, 77, 79, 81, 86, 88, 90, 94, 100, 102, 114, 117, 119, 125, 128, 131, 132, 136, 144, 145, 148, 151, 154, 160, 163, 166, 169, 171, 173, 176, 178, 180, 184, 189, 194, 206, 208, 209, 212, 213, 215, 218, 219, 241, 246, 259, 260, 266, 271, 272, 277, 278, 287, 288 Security Council authorization 67, 69 Sentencing 36, 50, 55, 83, 84, 273, 280, 307

332

Index

Sesay 35, 40, 57, 73, 81, 82, 84, 88, 89, 92, 94, 96, 103, 107, 108, 110, 117, 118, 121, 126, 130, 134, 151, 155, 159, 161, 166, 168, 170, 172, 174, 178, 185, 190, 192, 193, 197, 208, 210, 212, 214, 216, 218, 274, 276, 279, 307, 327 Sexual Slavery 117, 123, 126, 253, 318, 322 Sexual Violence 35, 90, 94, 117, 119, 129, 223, 321 Sierra Leone 20, 21, 23, 30, 32, 34, 50, 52, 53, 55, 56, 58, 63, 65, 66, 68, 69, 71, 72, 75, 76, 79, 84, 90, 94, 99, 102, 109, 112, 115, 117, 119, 131, 132, 137, 145, 146, 148, 149, 151, 155, 157, 161, 179, 180, 183, 185, 187, 196, 199, 202, 204, 207, 210, 212, 218, 222, 224, 225, 231, 239, 240, 242, 249, 251, 254, 256, 259, 263, 265, 267, 270, 272, 277, 283, 285, 287, 320, 321, 323, 325, 328 Slavery 108, 110, 126, 322, 327 Soft Law 241 Special Court for Sierra Leone 25, 26, 38, 50, 52, 53, 55, 239, 244, 265, 270, 272, 285 Substantive jurisdiction 70

Taylor 25, 28, 32, 36, 40, 47, 55, 60, 70, 75, 81, 84, 114, 128, 151, 153, 156, 157, 161, 218, 225, 256, 258, 267, 269, 307, 318, 327 Temporal jurisdiction 80 Territorial jurisdiction 81 Terrorism 101, 169, 171, 227, 316 Torture 71, 114, 115, 236, 238, 320 Trial Chamber 21, 54, 55, 68, 73, 74, 77, 83, 84, 92, 95, 96, 98, 101, 103, 105, 106, 108, 112, 125, 126, 130, 134, 151, 152, 155, 158, 160, 163, 164, 167, 168, 170, 172, 178, 183, 185, 189, 192, 193, 208, 209, 213, 215, 216, 247, 248, 250, 252, 254, 259, 262, 273, 276, 278, 316, 327 Truth and Reconciliation Commission 21, 32, 35, 36, 42, 137, 196, 222, 239, 280, 326, 327 UNAMSIL 21, 43, 153, 157, 158, 183, 187, 192 War Crimes 25, 34, 65, 119, 136, 138, 146, 210, 218, 231, 234, 235, 243, 253, 318, 323, 327