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A “Special Court” for Sierra Leone?

Published online by Cambridge University Press:  17 January 2008

Robert Cryer
Robert Cryer
Affiliation:
University of Manchester. I am very grateful to Prof. Nigel D. White for his comments on an earlier draft of this paper and to the FCO for its helpful responses to my queries. Obviously, the author is solely responsible for all views, errors, elisions and the like.
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Extract

The conflict in Sierra Leone began in 1991 and still continues. It has led to over 50,000 deaths. The fighting has been characterised by the use of child combatants and widespread mutilation of civilians by amputation. When the conflict began, it would have seemed improbable that any UN response would include a forum for the trial of international crimes. After all, even the high tide of international enforcement of international criminal law, the Nuremberg International Military Tribunal, had begun to be excised from mainstream treatments of international law.1 The possibility of a permanent international criminal court had recently been revived, and sent to the International Law Commission for consideration, but the record of the ILC with controversial projects would not have led to an expectation of quick progress.2 Yet, nearly 10 years on, the UN is now involved in setting up a fourth criminal court,3 the “Special Court” for Sierra Leone. Despite the selectivity inherent in ad hoc reactions, and the continuing opposition to the Rome Statute in some quarters, it is now difficult to deny that progress is being made towards a new form of international criminal order where the improbability of prosecution for international crimes can ne longer be presumed.

Type
Current Developments: Public International Law
Information
International & Comparative Law Quarterly , Volume 50 , Issue 2 , April 2001 , pp. 435 - 446
Copyright
Copyright © British Institute of International and Comparative Law 2001

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References

1. See Warbrick, C. J., “International Criminal Law” (1995) 44 I.C.L.Q. 446, pp.446–447.Google Scholar

2. See Ferencz, B., “An International Criminal Code and Court: Where They Stand and Where They're Going” (1992) 20 Columbia J. Transnational L. 375.Google Scholar

3. The other three being the International Criminal Tribunal for former Yugoslavia (ICTY) and International Criminal Tribunal for Rwanda (ICTR) and the Permanent International Criminal Court (ICC), which will be established after the Rome Statute for the International Criminal Court is ratified by 60 States, A/CONF.183/9, Article 126. The ICC is not, strictly speaking, a UN body, but the process of negotiating the Rome Statute was arranged by the UN, and pursuant to Article 2 of that Statute, the ICC will be brought into a relationship with the UN.

4. For a balanced view of such a development see Charney, J., “Progress in International Criminal Law?” (1999) 93 A.J.I.L. 452.Google Scholar

5. S/2000/786.

6. The linkage between the commission of the “core” international crimes and international peace and security is also emphasised in preambular paragraph 3 of the Rome Statute, see Triffterer, O., “Preamble” in Triffterer, O. (ed.), Commentary on the Rome Statute for the International Criminal Court (1999), 1, pp.9–10.Google Scholar

7. It was, nonetheless, described by the U.K. Representative to the Security Council as “a good, firm step to set up a court”, see BBC News, “War Crimes Tribunal for Sierra Leone”, 14 Aug. 2000, http://news.bbc.co.uk/hi/english/world/africa/newsid_879000/879825.stm.

8. S/2000/915 (hereafter “Report”).

9. S/2000/1234 (hereafter “Letter”).

10. The Report of the Security Council Mission to Sierra Leone (S/2000/992) (hereafter “Mission Report”), p.13, merely recommended that the Security Council think over carefully the issues involved. However, in a statement in Freetown on 12 Oct. 2000 the U.K.'s representative to the Security Council, and head of the mission to Sierra Leone, Sir Jeremy Greenstock, said: “it is not premature for us to send one clear message: we remain determined that fair, speedy and effective justice is delivered by this court”, UN Press Release SC/6936, 13 Oct. 2000.

11. See Romano, C. P. R., “The Proliferation of International Judicial Bodies: The Pieces of the Puzzle” (1999) 31 New York University Journal of International Law and Politics 709, pp.713–714Google Scholar. Romano adds the criteria of permanence, proceeding by way of rules of procedure and a legally binding outcome. The last two criteria relate to the judicial nature of a body, not the distinction between international and national courts. As evidenced by Article 66 of the Third Geneva Convention, the non-permanent nature of a judicial body need not deprive it of its status as a court.

12. Report, op. cit., paras.9 and 39.

13. Idem., para. 9.

14. Idem., para. 39.

15. Idem., paras.40–46.

16. This was one of the reasons the ICTY's Appeal Chamber was transformed into a joint chamber for the ICTY and ICTR, Shraga, D. & Zacklin, R., “The International Criminal Tribunal for Rwanda” (1996) 7 E.J.I.L. 501, p.511.Google Scholar

17. Report, op. cit., paras.40–46.

18. Idem., paras.42–43.

19. Idem., para. 45.

20. Special Court Statute, Article 20(3) (hereafter “Statute”). Where the Security Council has suggested amendments to the draft Statute, the Security Council's suggested wording is referred to as “Revised Article”.

21. Article 2 of the Agreement between the UN and the Government of Sierra Leone on the Establishment of a Special Court for Sierra Leone (hereafter “Agreement”). Report, op. cit., para. 49.

22. Revised Article 2(1).

23. Letter, p.2. Revised Article 2(1) allows the President of the Court to ask for such judges after six months, should they be required.

24. When the ICTY was in its infancy, there was a period when the judges had very little trial work. They busied themselves, inter alia, with writing the rules of procedure and evidence, Warbrick, above n.1, pp.469–470. There will be less work of that nature for the Special Court judges: Statute Article 14 declares the Rules of Procedure and Evidence of the ICTR shall, mutatis mutandis, apply to the Special Court.

25. See Security Council Resolution 1329, S/RES/1329 (2000).

26. Revised Article 2(2)(a).

27. Revised Article 2(2)(c).

28. See infra, section D.

29. Article 2(2)(a).

30. Article 3(1)(2).

31. Resolution 1315, para. 8(c).

32. Report, op. cit., paras.69–70.

33. Idem., para. 71. This was also the wish of the government of Sierra Leone, Mission Report, op. cit., para. 48.

34. Revised Article 6.

35. See Halff, M. & Tolbert, D., “Article 116” in Triffterer, (ed.), supra n.6, 1129, pp.1129–1131.Google Scholar

36. The Secretary-General is not to begin setting up the Special Court until he has 12 months financing available, and pledges for the second year, Letter, p.2. The Secretary-General estimated that the initial costs, purely for the buildings and salaries for the first year, would be in the region of $25.5m. This does not include, inter alia, the prosecution's investigative costs, which will be considerable. Report, op. cit. paras.57–63.

37. Revised Article 6 provides that “Should voluntary contributions be insufficient for the Court to implement its mandate, the Secretary-General and the Security Council shall explore alternate means of financing the Court”.

38. In its 1994 Yearbook, pp.90–91, the ICTY claimed that funding problems meant that it “was operating with one hand tied behind its back”.

39. Holmes, J. T., “The Principle of Complementarity” in Lee, R. S. (ed.), The International Criminal Court and the Making of the Rome Statute (1999) 41. ICTY Statute Article 9(1), Rome Statute, Article 17.Google Scholar

40. See ICTY Rule of Procedure 9(iii).

41. Rome Statute, Article 17(a).

42. Revised Article 1(b).

43. Statute Article 8(2).

44. Revised Article 1(a).

45. Agreement, Article 16.

46. See Article 29 of the ICTY Statute, as bolstered by Security Council Resolution 827.

47. George, B. J., “Immunities and Exceptions” in Bassiouni, M. C. (ed.), International Criminal Law vol. II: Procedural and Enforcement Mechanisms (1999), 109, pp.134–142.Google Scholar

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49. Letter, p.1.

50. This is the more limited reading of preambular paragraph 6 of the Rome Statute, Triffterer, supra n.6, pp. 12–13.

51. See Williams, S. A., “Article 17” in Triffterer, (ed.), supra n.6, 383, especially pp.392–394.Google Scholar

52. Report, op. cit., para. 29.

53. Report, op. cit., para. 30, Agreement, Article 1, Statute, Article 1.

54. Idem., para. 30.

55. Agreement, Revised Article 1, Statute, Revised Article 1.

56. Letter, p.1. The change in phrasing also implies that the Court should prosecute a smaller number of defendants than the Secretary-General envisaged.

57. Rome Statute, Article 26.

58. See Clark, R. S. & Triffterer, O. “Article 26” in Triffterer, (ed.), supra n.6, 493, p.499.Google Scholar

59. Rome Statute, Articles 8(2)(b)(xxvi), 8(2)(e)(vii).

60. See Mission Report, op. cit., paras.49–50. Amnesty International, on the other hand, supports trials for those who acted voluntarily and were in control of their actions, Amnesty International Child Soldiers: Criminals or Victims?, IOR.50.002/2000.

61. Revised Article 7.

62. Idem., para. 27.

63. Idem., para. 28.

64. See Orientlicher, D., “Settling Accounts: The Duty to Prosecute Human Rights Violations of a Former Regime” (1991) 100 Yale L.J. 2537CrossRefGoogle Scholar; Dugard, J., “Dealing With the Crimes of a Past Regime: Is Amnesty Still an Option?” (1999) 12 Leiden J.I.L. 1001.CrossRefGoogle Scholar

65. Report, op. cit., paras 22–24.

66. Idem., para. 23.

67. Idem., para. 22. The UN, in the past, has supported amnesty provisions, for example in Haiti, see Scharf, M. P., “Swapping Amnesty for Peace: Was There a Duty to Prosecute International Crimes in Haiti” (1996) 31 Texas I.L.J. 1.Google Scholar

68. Idem., para. 24.

69. Statute, Article 10.

70. As there was no evidence of genocide in Sierra Leone, and the Security Council did not mention genocide in Resolution 1315, the Secretary-General did not include genocide in the jurisdiction of the Court, Report, op. cit., para. 13.

71. The chapeau of Article 3 of the ICTR Statute defines crimes against humanity as “the following crimes when committed as part of a widespread or systematic attack against any civilian population on national, political, ethnic, racial or religious grounds”.

72. Report, op. cit., para 14.

73. See, for example, Robinson, D., “Defining ‘Crimes Against Humanity’ at the Rome Conference” (1999) 93 A.J.I.L. 43.Google Scholar

74. Idem., pp.47–50.

75. Report, op. cit., para. 14.

76. Prosecutor v. Tadic, Interlocutory Appeal on Jurisdiction, 2 Oct. 1995, IT-94–1-AR72, paras.100–102, 110–113.

77. Article 8(2)(e)(vii), “Conscripting or enlisting children under the age of fifteen years into armed forces or groups or using them to participate actively in hostilities”.

78. Letter, p.2.

79. The Statute repeats, mutatis mutandis, Article 7 of the ICTY Statute.

80. Cassese, A., “The Rome Statute of the International Criminal Court: Some Preliminary Reflections” (1999) 10 E.J.I.L. 144, p.153.Google Scholar

81. Blakesley, C., “Atrocity and its Prosecution: The Ad Hoc Tribunals for the Former Yugoslavia and Rwanda” in McCormack, T. L. H. & Simpson, G. J., The Law of War Crimes: National and International Approaches (1997), 189, p.204.Google Scholar

82. See Gaeta, P., ‘The Defence of Superior Orders: The Statute of the International Criminal Court Versus Customary International Law’ (1999) 10 E.J.I.L. 172Google Scholar; although see Garroway, C., ‘Superior Orders and the International Criminal Court: Justice Delivered or Justice Denied?’ (1999) 836 International Review of the Red Cross 785.Google Scholar

83. See U.S. State Department press statement, 2 Jan. 2001, welcoming the approval by the National Assembly of Cambodia's law to establish “extraordinary chambers” to hear cases against leaders of the Khmer Rouge.

84. For an extensive argument on this point see Alvarez, J. E., “Crimes of Hate/Crimes of State” (1999) 24 Yale J.I.L. 365Google Scholar, especially his comment (p.483) “Properly mediated by international law (and fora where necessary) local criminal accountability helps restore the rule of law where it matters most at the local level, where all of us live”.

85. For a critical review, see Amnesty International, Sierra Leone: Recommendations on the draft Statute of the Special Court, AFR51/083/2000.

86. Loc. cit., para. 97.