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Sierra Leone's shoestring Special Court

Published online by Cambridge University Press:  19 April 2010

Avril McDonald
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Type
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Information
International Review of the Red Cross , Volume 84 , Issue 845: Impunité/Impunity , March 2002 , pp. 121 - 143
Copyright
Copyright © International Committee of the Red Cross 2002

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References

1 See “Sierra Leone: UN, Government sign historic accord to set up special war crimes court”, UN News Center, 16 January 2002.

2 Pursuant to The Truth and Reconciliation Commission Act 2000 of 22 February 2000.

3 While SC Res. 1315 (2000), initiating the creation of the Court, noted the steps taken by Sierra Leone to establish a national truth and reconciliation process, it did not specifically request that the possible relationship between the Special Court and the Truth and Reconciliation Commission be considered, and the Secretary-General subsequently failed to take any initiative in this regard.

4 See UN Doc. S/1999/836, p. 2, para. 7. For national and international responses to the 1999 Peace Agreement, see McDonald, A.J.M., “The amnesties in the Lomé Peace Agreement and the UN's dilemma”, Humanitäres Völkerrecht, No. 1, 2000, pp. 11 at 12–14.Google Scholar

5 UN Doc. S/2000/786.

6 Ralph Zacklin, UN Assistant Under-Secretary-General for Legal Affairs, said that there was no longer support on the Council for establishing subsidiary legal bodies, and that the UN Security Council, while it was supportive of other ad hoc Tribunals, would not fund them as it did the ICTY and ICTR. McMahon, Robert, “UN: International justice – ad hoc Tribunals fill void (Part 4)”, Radio Free Europe/Radio Liberty, 7 September 2001Google Scholar.

7 Report of the Secretary-General on the establishment of a Special Court for Sierra Leone, UN Doc. S/2000/915, 4 October 2000.

8 Letter dated 22 December 2000 from the President of the Security Council addressed to the Secretary-General, UN Doc. S/2000/1234; Letter dated 12 January 2001 from the Secretary-General addressed to the President of the Security Council, UN Doc. S/2001/40; Letter dated 31January 2001 from the President of the Security Council addressed to the Secretary-General, UN Doc. S/2001/95.

9 By a letter of 9 February 2001 to the Legal Counsel, the Government of Sierra Leone expressed its willingness to accept the Statute and Agreement. Letter from the Secretary-General to the President of the Security Council, UN Doc. S/2001/693, 13 July 2001. However, the Court would only be established once the Secretary-General had ascertained that sufficient contributions were in hand.

10 Ibid., para. 10.

11 UN Doc. S/2000/1234.

12 Ibid., para. 21.

13 Ibid., para. 22.

14 It provides: “An amnesty granted to any person falling within the jurisdiction of the Special Court in respect of the crimes referred to in Articles 2 to 4 of the present Statute shall not be a bar to prosecution.” Crimes under Sierra Leonean law are referred to in Article 5.

15 Frulli, Micaela, “The Special Court for Sierra Leone: Some preliminary comments”, EJIL, vol. 11, 2000, p. 859CrossRefGoogle Scholar.

16 UN Doc. S/2000/1234, paras. 25–28.

17 It also departs from the definition of crimes against humanity in the United Nations Transitional Administration in East Timor (UNTAET)'s Regulation No. 2000/15 on the Establishment of Panels with Exclusive Jurisdiction over Serious Criminal Offences, which follows the ICC definition. Regulation 2000/15 also adopts a definition of war crimes almost identical to that in Art. 8 of the ICC Statute.

18 Art. 3 of the ICTR Statute stipulates in addition that, to be subject to prosecution by the ICTR, the acts should be committed “as part of a widespread or systematic attack against any civilian population on national, political, ethnic, racial or religious grounds” (emphasis added). Art. 5 of the ICTY Statute adds a different requirement: that the crimes should be committed “in armed conflict, whether international or internal in character, and directed against any civilian population”, Finally, Art. 7 of the ICC Statute provides that crimes against humanity are the enumerated acts, “when committed as part of a widespread or systematic attack against any civilian population, with knowledge of the attack”.

19 Cryer, Robert, “A “Special Court” for Sierra Leone?”, ICLQ, vol. 50, 2001, p. 443Google Scholar.

20 Prosecutor v. Duško Tadic, Case No. IT-94–1-T, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, para. 117.

21 Nicaragua v. USA, I.C.J. Reports 1986, Judgment,, para. 218; confirmed in Tadic jurisdiction decision, ibid., para. 98; Prosecutor, Duško Tadic, Opinion and Judgment, 7 May 1997, para. 609.

22 “(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 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) Abduction and forced recruitment of children under the age of 15 years into armed forces or groups for the purpose of using them to participate actively in hostilities.”

23 See op. cit. (note 18), p. 444, and op. cit. (note 14), pp. 864–865.

24 That is, offences relating to the abuse of girls under the 1926 Prevention of Cruelty to Children Act and to the 1861 Wanton Destruction of Property under the Malicious Damages Act.

25 Regulation 15 gives the Special Panels jurisdiction over murder and sexual offences under the applicable Penal Code in East Timor (sections 8 and 9).

26 Agreement, Art. 2(2)(a).

27 Art. 1.

28 UN Doc. S/2000/1234.

29 Letter dated 12 January 2001 from the Secretary-General addressed to the President of the Security Council, UN Doc. S/2001/40; Letter dated 31 January 2001 from the President of the Security Council addressed to the Secretary-General, UN Doc. S/2001/95.

30 Ibid.

31 UN Doc. S/2001/40, para. 3.

32 Art. 1(2) of the Statute provides: “Any 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.”

33 Statute, Art. 1(3).

34 UN Doc. S/2001/40, para. 4.

35 Ibid., para. 5.

36 UN Doc. S/2001/95.

37 Art. 7(2) of the draft Statute of October 2000, in Annex to Special Report of the UN Secretary-General.

38 Ibid., Art. 7.

39 UN Doc. S/2000/1234.

40 To read in full: “Should any person who was at the time of the alleged commission of the crime below 18 years of age come before the Court, he or she shall be treated with dignity and a sense of worth, taking into account his or her young age and the desirability of promoting his or her rehabilitation, reintegration into and assumption of a constructive role in society, and in accordance with international human rights standards, in particular the rights of the child.”

41 UN Doc. S/2001/40, para. 7.

42 UN Doc. S/2001/95.

43 Art. 7(2).

44 Arts 13(2), 15(4) and 15(5).

45 Arts 37 and 40.

46 In its report to the Committee on the Rights of the Child, the government of Sierra Leone stated that its age of criminal responsibility was ten. Initial Report of Sierra Leone, 03/06/96 CRC/C/3/Add. 43 para. 33. Persons over 17 years are considered as adults and can be subject to the death penalty: Chapter 44 of The Children and Young Persons Act, 31 December 1948, Part I, Article 2.

47 Of 25 May 2000.

48 Pursuant to requests of both Tribunals and by virtue of SC Res. 1165 (1998), 30 April 1998, and 1166 (1998), 13 May 1998, respectively.

49 UN Doc. S/2000/1234, para. 3.

50 In fact, even three have not proven sufficent for the ICTY. In response to its request the UN Security Council, by res. 1329 (2000), voted to create a pool of 27 so-called “ad litem” judges to serve in ICTY Trial Chambers on a single case. There will thus be three Trial Chambers each consisting of three sections, that is, up to nine sections of Chambers hearing cases at trial.

51 Agreement, Art. 2.

52 Agreement, Art. 2(2).

53 UN Doc. S/2000/915, para. 57.

54 ibid., paras 40–46.

55 Ibid., para. 66.

56 His original estimated requirements for the establishment and first year of operation of the Court and for the following 24 months were $30.2 million and $84.4 million, respectively, a total of $114.6 million. Letter dated 12 July 2001 from the Secretary-General addressed to the President of the Security Council, UN Doc. S/2001/693,13 July 2001.

57 Ibid.

58 Ibid.

59 Ibid.

60 Ibid.

61 The ICTY's budget, for example, has risen steadily from $276,000 in 1993 to $96,443,900 in 2001. Source: ICTY Key Figures, 9 August 2001. <http://www.un.org/icty/glance/keyfig-e.htm>.

62 Art. 2.

63 UN Doc. S/2000/915, para. 13.

64 Sierra Leone: Recommendations on the Draft Statute of the Special Court, Amnesty International, AFR 51/083/2000,14 November 2000.