Since 23 March 1991, the West African country of Sierra Leone has been the battleground of fierce fighting, initially between the Revolutionary United Front (RUF) led by Foday Sankoh and the one party military regime of the All People’s Congress (APC).1Hostilities have continued relentlessly since then but ceased for a short interlude with the signing of the Abidjan Peace Agreement on 30 November 1996 between a newly elected democratic government and the RUF. No sooner had
1 Soon after Sankoh’s arrest on 27 May 2000 by Sierra Leonean (SR) forces, his wife applied for habeas corpus before the High Court in London, on the grounds that at the request of SR forces, British troops provided assistance in transporting Sankoh, and as a result he was under British custody and control. Both the High Court and Court of Appeal rejected these arguments.In the Matter of Sankoh(2000) 119 ILR 386.
the ink dried on the Peace Agreement, than fighting on an even larger scale broke out again. The new circle of violence culminated in acoup d’etatorchestrated by theArmed Forces Revolutionary Council (AFRC), an ally of the RUF, which seized power over the greater part of Sierra Leone on 25 May 1997.2In an attempt to take control of the capital Freetown a combined force of AFRC/RUF forces launched a military operation which was marked by widespread atrocities against the civilian population, although serious violations of international humanitarian law had ensued since the 1997 coup, especially mass rape and abduction of women, forced recruitment of children, mutilations and summary executions.3Likewise, during its retreat in February 1999, RUF forces abducted hundreds of people, particularly young women who they then proceeded to use as forced labourers, fighting forces, human shields and sexual slaves.4The Lome Peace Agreement, signed on 7 July 1999 by the democratically elected government of President Ahmed Kabbah, the RUF and the Special Representative of the UN Secretary General, granted amnesty to RUF members—although the Special Representative expressly rejected the validity of any amnesties to international crimes—and set up a Truth Commission to investigate and document violations in lieu of prosecutions.5In further disregard of its commitments and the rule of law, the RUF resumed attacks against government troops and the civilian population, and, despite being quickly defeated and its leader captured, RUF forces had found time to commit yet more widespread atrocities against civilians.6
The Government of Sierra Leone subsequently asked the UN to establish an international tribunal to prosecute those responsible for violations of international humanitarian law during the civil war. On 14 August 2000, the Security Council instructed the Secretary General to negotiate with Sierra Leone the establishment of an independent special court, recommending that its subject matter jurisdiction include crimes against humanity, war crimes and other serious violations of international law, as well as crimes under Sierra Leonian law committed by ‘persons who bear the greatest responsibility for [these] crimes’. The resolution requested the production of a detailed statute. After two rounds of successful negotiations, the Secretary General presented the Security Council with a report on the creation of a Special Court, to which both the agreement7and the statute8were annexed.
Unlike the ICTY and ICTR, the Special Court was established through a treaty between the UN and the Government of Sierra Leone on 16 January 2002, and not on the basis of a Security Council resolution. This means that the Special Court lacks
2 Acting under UN Charter, Chapter VII, the Security Council adopted Resolution 1132 on 8 October 1997, demanding that the RUF relinquish power and cease acts of violence, further imposing a general embargo.
3 See SC Res 1181 (13 July 1998).
4 Report of the Secretary General on the Establishment of a Special Court for Sierra Leone,UN Doc S/2000/
915 (4 October 2000), paras 25–26.
5 See M Scharf, ‘The Special Court for Sierra Leone’ (October 2000)ASIL Insight.
6 Following international concern at the role played by the illicit diamond trade in fuelling the conflict in Sierra Leone, the Security Council adopted Resolution 1306 (5 July 2000) imposing a ban on the direct or indirect import of rough diamonds from areas not controlled by the government through the establishment of a certificate of origin regime.
7 Draft Agreement between the UN and the Government of Sierra Leone on the Establishment of a Special Court for Sierra Leone, 2000, contained inReport of the Secretary General on the Establishment of a Special Court for Sierra Leone,UN Doc S/2000/915 (4 October 2000), p 15.
8 Statute of the Special Court for Sierra Leone.
primacy over other national courts and public authorities of third countries, whether this involves requests for surrender of evidence or of accused persons. In examining measures to enhance the deterrent powers of the court, the Secretary General invited the Security Council to consider endowing it with Chapter VII powers for the specific purpose of requesting the surrender of an accused from outside the jurisdiction of the court.9The Security Council never responded to that request. The Agreement and the Statute should be read together as a single instrument, rather than two separate ones, in light of the fact that there is considerable overlap between them.10 Under Art 8 of its Statute, the court has concurrent jurisdiction with Sierra Leone courts but enjoys primacy over them. The Special Court is to be composed of two Trial Chambers, each consisting of three judges, and an Appeals Chamber consisting of five judges. Sierra Leone is to appoint one of the three trial judges in each chamber, as well as two of the judges that will serve in theAppeals Chamber, with the remaining judicial vacancies to be filled by the UN.11Similarly, the Secretary General is to appoint the court’s Registrar12and prosecutor, who shall be assisted by a Sierra Leonian deputy Prosecutor.13In accordance with Art 2 of the 2002 Agreement, from the three judges serving in the Trial Chamber, one shall be appointed by Sierra Leone, whereas the remaining two by the Secretary General, upon nominations forwarded by Member States of the Economic Community of West African States (ECOWAS) and the Commonwealth. Under Art 3 of the 2002 Agreement, the Prosecutor shall be appointed on the basis of a consultation between the Government of Sierra Leone and the Secretary General.
The subject matter jurisdiction of the Special Court comprises crimes under international humanitarian law and Sierra Leonian law. The first category includes crimes against humanity,14violations of common Art 3 to the Geneva Conventions and of Additional Protocol II,15 as well as ‘other violations of international humanitarian law’.16Article 4 includes the intentional targeting of civilians,hors de combatand personnel along with material of peace-keeping missions, as well as abduction and forced recruitment of children under the age of 15 for the purpose of using them to participate actively in hostilities. The Secretary General points out in his report on Art 4 that, although the prohibition on child recruitment has acquired customary international law status,17it is not clear to what extent it is recognised as a war crime entailing individual criminal responsibility, despite its classification as a war crime in the 1998 ICC Statute.18Despite the Secretary General’s comment that
9 Op cit, Report of the Secretary General,note 7, para 10.
10 A McDonald, ‘Sierra Leone’s Shoestring Special Court’, 84IRRC(2002), 121, p 126.
11 Statute of the Special Court for Sierra Leone, Art 12(1).
12 Ibid,Art 16.
13 Ibid,Art 15(3) and (4).
14 Ibid,Art 2.
15 Ibid,Art 3.
16 Ibid,Art 4.
17 See particularly 1977 Protocol II, Art 4(3)(c); 1989 Convention on the Rights of the Child, Art 38(3), 1577 UNTS 3; 1998 International Criminal Court (ICC) Statute,Art 8(2)(b)(xxvi). The Secretary General expressly differentiated the crime contained in Art 4 of the Sierra Leone Special Court Statute from that of the ICC Statute, Art 8(2)(b)(xxvi) on account of the doubtful criminal customary nature of the ICC provision.Op cit, Report of the Secretary General,note 7, para 18.
18 Op cit, Report of the Secretary General,note 7, para 17.
the Special Court’s list of crimes against humanity follows the enumeration included in the ICTY and ICTR Statutes, one readily observes that Art 2(g) contains ‘sexual slavery, enforced prostitution, forced pregnancy and any other form of sexual violence’, whereas the twoad hocTribunals make reference only to ‘rape’. It must be presumed, however, that in every other respect Art 4 of the Statute of the Special Court for Sierra Leone follows the ICTY Statute and not that of the ICC. Recourse to SR law has been provided in cases where a specific situation or an aspect of it was considered to be either unregulated or inadequately regulated under international law.19The crimes considered to be relevant for this purpose and included in the Statute20are: offences relating to the abuse of girls under the SR 1926 Prevention of Cruelty to Children Act (ss 6, 7 and 12) and offences relative to wanton destruction of property, and in particular arson, under the SR 1861 Malicious Damage Act (ss 2, 5 and 6). Genocide was not included because the Security Council was not furnished with evidence of intent to annihilate an identified group as such.
Article 10 does not consider amnesties granted with respect to offences included in Arts 2–4 of the Statute of the Special Court for Sierra Leone as posing a bar to prosecution. This provision refers to Art IX of the 1999 Lome Peace Agreement, to which the Special Representative of the Secretary General appended a reservation to the effect that amnesties under Art IX shall not apply to international crimes.21 The bar on amnesties seems to apply only to crimes under international law and not domestic offences, and regarding domestic offences, the court’s temporal jurisdiction may begin on 7 July 1999.22After agreement with the Sierra Leone Government, it was decided that the temporal jurisdiction of the court would commence from 30 November 1996.
The prosecution of children for war crimes and crimes against humanity has presented a ‘difficult moral dilemma’ for a number of reasons.23Although they were feared for their brutality, the Secretary General noted that these children have been subjected to a process of psychological and physical abuse and duress that has transformed them from victims into perpetrators.24In a balancing act catering on the one hand for the concerns of humanitarian organisations responsible for rehabilitation programmes, who objected to any kind of judicial accountability for children below 18 years of age, and on the other adhering to vociferous popular feeling demanding punishment of offenders, the Secretary General decided in favour of prosecuting juveniles above 15 years of age, but instructed the prosecutor in cases of juvenile offenders to:
…ensure that the child rehabilitation programme is not placed at risk and that, where appropriate, resort should be had to alternative truth and reconciliation mechanisms, to the extent of their availability.25
19 Op cit, Report of the Secretary General,note 7, para 19.
20 Statute of the Special Court for Sierra Leone, Art 5.
21 Op cit, Report of the Secretary General,note 7, para 22.
22 M Frulli, ‘The Special Court for Sierra Leone: Some Preliminary Comments’, 11EJIL(2000), 857, p 859.
23 Op cit, Report of the Secretary General,note 7, para 32.
24 Op cit, Report of the Secretary General,note 7, para 32.
25 Statute of the Special Court for Sierra Leone, Art 15(5).
Finally, the Special Court has no legal links with the ICTR and ICTY, except in so far as it is bound to apply the Rwanda Tribunal’s Rules of Procedure26and its Appeals Chamber is to be guided by the decisions of the ad hoc Tribunals’ common Appeals Chamber,27in order to produce a coherent body of jurisprudence. As to its financing, the Secretary General had initially suggested this should take place through assessed contributions, rather than by voluntary emoluments.28Finally, Art 6 of the 2002 Agreement provided that the court’s expenses be borne by voluntary contributions from the international community, the court becoming operational when sufficient funds have been gathered. Article 6 further provides that should voluntary contributions prove insufficient for the court to implement its mandate, the Secretary General and the Security Council will explore alternate means of financing.