Transitional Justice in the Twenty-First Century: Beyond Truth versus Justice (13 page)

[33]
The Court's jurisdiction extends to violations of Common Article 3 to the Geneva Conventions and of Additional Protocol II, and “other serious violations of international humanitarian law.” The Court lacks jurisdiction over genocide.

[34]
The international crimes are punishable under Articles 2–4 of the
Statute
; the domestic crimes under Article 5.

[35]
Prosecutor
v.
Morris Kallon, Brima Bazzy Kamara
, SCSL–2004–15–AR72(E), SCSL–2004–16–AR72(E), Decision on Challenge to Jurisdiction:
Lomé Accord Amnesty, March 13, 2004 (Lomé Amnesty Decision, March 13, 2004). See related discussion below.

[36]
Article 8(2) of the
Statute
.

[37]
Article 8(1) of the
Statute
establishes the concurrent jurisdiction of the Special Court and the national courts; since the Lomé Agreement's amnesty provision is considered applicable domestically, such concurrent jurisdiction applies in practice to post‐Lomé crimes.

[38]
Prosecutor
v.
Issa Hassan Sesay, Morris Kallon, Augustine Gbao
, SCSL–2004–15–PT, Indictment, February 5, 2004;
Prosecutor
v.
Alex Tamba Brima, Brima Bazzy Kamara, Santigie Borbor Kanu
, SCSL–2004–16–PT, Indictment, February 5, 2004. The former RUF and AFRC members are charged with the same crimes, as they are alleged to have participated in a joint criminal enterprise which produced these crimes, even if they did not physically perpetrate or order them. On criminal responsibility resulting from participation in a joint criminal enterprise, see S. Powles, “Joint Criminal Enterprise – Criminal Liability by Prosecutorial Ingenuity and Judicial Creativity?” (2004)
Journal of International Criminal Justice
, 2, p. 606. Also see ICTY case:
Prosecutor
v.
Milutinovic et al
., IT–99–37–AR72, Decision on Dragoljub Ojdanic's Motion Challenging Jurisdiction – Joint Criminal Enterprise, May 21, 2003, para. 20.

[39]
Prosecutor
v.
Sam Hinga Norman
,
Moinina Fofana, Allieu Kondewa
, SCSL–2004–14–PT, Indictment, February 5, 2004.

[40]
See A. Cassese,
International Criminal Law
(New York: Oxford University Press, 2003), pp. 181 and 191.

[41]
Art. 1 of the
Statute
also adds that such persons may include “those leaders who . . . have threatened the establishment of and implementation of the peace process in Sierra Leone.” According to the Secretary‐General, these words “do not describe an element of the crime but rather provide guidance to the prosecutor in determining his or her prosecutorial strategy.” Letter dated January 12, 2001 from the Secretary‐General addressed to the President of the Security Council, UN Doc. S/2001/40, para. 3.

[42]
Report of the Planning Mission on the Establishment of the Special Court for Sierra Leone, UN Doc. S/2002/246, Annex, March 8, 2002, para. 29: “the selection for prosecution of those ‘who bear the greatest responsibility’ necessarily entails a measure of discretion on the part of the Prosecutor.”

[43]
Prosecutor
v.
Dusko Tadic
, Case No. IT–94–1–T, available at
www.un.org/icty
.

[44]
This approach was endorsed in UN Doc. S/RES/1503, August 28, 2003, defining the ICTY's “completion strategy”.

[45]
There will not be domestic prosecutions of these lesser offenders with respect to crimes committed prior to the signing date of the Lomé Agreement, July 7, 1999, due to the amnesty provision therein, but it is not completely inconceivable that “small fry” will be tried by national courts for crimes committed after July 7, 1999.

[46]
See “Sierra Leone: Rebels ‘Criminally Gutted an Entire Nation’ Says International Prosecutor”, Freetown, July 5, 2004. Article available at
www.allafrica.com/stories/200407060022.html
.

[47]
Interview with Nikolaus Toufar (Completion Strategy Coordinator at Special Court's Registry), Freetown (by phone), March 10, 2005. See relevant discussion on the “National Victims Commemoration Conference of Truth, Justice and Reconciliation” which took place in Freetown on March 1–2, 2005, and on the regional preparatory conferences.

[48]
Report of the Secretary‐General, S/2000/915, paras. 9 and 39;
Prosecutor
v.
Morris Kallon, Sam Hinga Norman, Brima Bazzy Kamara
, SCSL–2004–15–AR72(E), SCSL–2004–14–AR72(E), SCSL–2004–16–AR72(E), Decision on Constitutionality and Lack of Jurisdiction, March 13, 2004.

[49]
See First Annual Report of the President of the Special Court for Sierra Leone, for the period December 2, 2002–December 1, 2003, (Special Court's First Annual Report), p. 20, available at
www.sc-sl.org
.

[50]
Article 5 of the Special Court Agreement.

[51]
Article 17 of the Special Court Agreement.

[52]
Article 14 of the
Statute
.

[53]
The Management Committee for the Special Court is an oversight committee which supervises funding and administrative arrangements related to the Court's operation. See Special Court's First Annual Report, page 30. See Articles 2, 3 and 7 of the Special Court Agreement.

[54]
Prosecutor
v.
Issan Hassan Sesay
, Case No. SCSL–2004–15–AR15, Decision on Defense Motion Seeking the Disqualification of Justice Robertson from the Appeals Chamber, March 13, 2004. The defense argued that Judge Geoffrey Robertson's expressions about the RUF which were included in a book he wrote (G. Robertson,
Crimes Against Humanity – The Struggle for Global Justice
(2002) ) demonstrated clear bias, and alternatively that they objectively gave rise to the appearance of bias. Accordingly, the defense requested that the judge withdraw from the Appeals Chamber or that the other members of the Appeals Chamber disqualify him from the Chamber. Consequently, the Court's Appeals Chamber held that the views expressed in the book objectively gave rise to the appearance of bias and precluded Judge Robertson from participating in the case against the former RUF members.

[55]
Security Council resolutions under Chapter VII constitute actions against states that are threatening international peace and security and are considered binding on all UN Member States.

[56]
Article 16 of the Special Court Agreement; section 21 of the
Special Court Agreement (Ratification) Act 2002
.

[57]
UN Doc. S/RES/1470, March 28, 2003, para. 11: “[The Security Council] . . . urges all states to cooperate fully with the [Special] Court.” UN Doc. S/RES/1478, May 6, 2003, preamble: “[The Security Council] . . . Calling on all States . . . to cooperate fully with the Special Court”.

[58]
Resolution 1470 was not issued under Chapter VII. With regard to Resolution 1478, while its operative part was issued under Chapter VII, its preamble is not governed by Chapter VII.

[59]
Interview with Alberto Fabbri (Legal Advisor to Special Court's Prosecutor), Freetown, August 5, 2004.

[60]
UN Doc. S/RES/1532, March 12, 2004, para. 1.

[61]
See Interpol website
www.interpol.int//files/01/52/70/f015270/public/ICPO/PressReleases/PR2003/PR200334.asp
.

[62]
Interview with Alberto Fabbri (Legal Advisor to Special Court's Prosecutor), Freetown, August 5, 2004.

[63]
Interview with Simone Monasebian (Principal Defender of the Special Court), Freetown, August 19, 2004. Also see Special Court's First Annual Report, page 18.

[64]
Interview with Robin Vincent (Registrar of the Special Court), Freetown, August 4, 2004.

[65]
The Appeals Chamber judges are: Judge Ayoola from Nigeria, Judge King from Sierra Leone, Judge Fernando from Sri Lanka, Judge Winter from Austria, and Judge Robertson from the United Kingdom. The First Trial Chamber judges are: Judge Itoe from Cameroon, Judge Thompson from Sierra Leone, and Judge Boutet from Canada. The Second Trial Chamber judges are Judge Doherty from Northern Ireland, Judge Sebutinde from Uganda, and Judge Lussick from Samoa. Hence in total there are five African judges out of eleven judges.

[66]
Prosecutor
v.
Alex Tamba Brima, Brima Bazzy Kamara, Santigie Borbor Kanu
, SCSL–2004–16–PT, Decision on Prosecution Request for Leave to Amend the Indictment, May 6, 2004.

[67]
Prosecutor
v.
Sam Hinga Norman
, SCSL–2004–14–AR72(E), Decision on Preliminary Motion based on Lack of Jurisdiction (Child Recruitment), May 31, 2004.

[68]
Prosecutor
v.
Charles Ghankay Taylor
, SCSL–2003–01–AR72(E), Decision on Immunity from Jurisdiction, May 31, 2004 (Taylor Immunity Decision, May 31, 2004); Lomé Amnesty Decision, March 13, 2004.

[69]
Taylor was charged with seventeen counts, including extermination, murder, enslavement, inhumane acts, rape, sexual slavery and any other form of sexual violence as crimes against humanity; with acts of terrorism, collective punishment, murder, cruel treatment, and pillage as violations of Common Article 3 to the Geneva Conventions and of Additional Protocol II; and with the use of child‐soldiers and attacks against peacekeepers as “other serious violations of international humanitarian law.” See
Prosecutor
v.
Charles Ghankay Taylor
, SCSL–2003–01–I, Indictment, March 7, 2003.

[70]
Taylor Immunity Decision, May 31, 2004, para. 52. Considering that at the time of the hearing Taylor was no longer head of state, the Court held that “[t]he immunity
ratione personae
which he claimed had ceased to attach to him. Even if he had succeeded in his application the consequence would have been to compel the Prosecutor to issue a fresh warrant.” See Taylor Immunity Decision, May 31, 2004, para. 59.

[71]
Lomé Amnesty Decision, March 13, 2004, para. 88. The Chamber also noted that the President of Sierra Leone acknowledged that “the intention of the amnesty granted was to put prosecution of such offences outside the jurisdiction of national courts.” See Lomé Amnesty Decision, March 13, 2004, para. 74.

[72]
Lomé Amnesty Decision, March 13, 2004, para. 82.

[73]
Lomé Amnesty Decision, March 13, 2004, para. 84. See the view of the TRC as expressed by Schabas in chapter
1
. In fact, this is the fundamental issue which caused tension between the TRC and the Special Court.

[74]
Stressing that witnesses face threats from within their own communities, see
Prosecutor
v.
Allieu Kondewa
, SCSL–2003–12–PT, Ruling on the Prosecution Motion for Immediate Protective Measures for Witnesses and Victims and for Non‐Public Disclosure and urgent Request for Interim Measures until Appropriate Protective Measures are in Place, October 10, 2003, para. 24. See also
Prosecutor
v.
Sam Hinga Norman, Moinina Fofana, Allieu Kondewa
, SCSL–2004–14–T, Decision on Prosecution Motion for Modification of Protective Measures for Witnesses, June 8, 2004, para. 34.

[75]
Referring to the fragile security situation in Sierra Leone, see e.g.
Prosecutor
v.
Issa Hassan Sesay, Morris Kallon, Augustine Gbao
, SCSL–2004–15–T, Decision on Prosecution Motion for Modification of Protective Measures for Witnesses, July 5, 2004, para. 23.