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This chapter discusses the legal competence of the Special Court for Sierra Leone. First, the chapter discusses the personal jurisdiction of the Court and the decision to prosecute the crimes that had already been established as legal norms under international law and domestic Sierra Leonean law. The chapter thereafter examines the origin of each of the prosecutable crimes from prior international tribunals, namely crimes against humanity, war crimes and other serious violations of international humanitarian law, and the debates and difficulties that stemmed from using Sierra Leone’s law as the basis for offenses. Second, it analyzes the temporal jurisdiction of the court, while the civil war lasted nearly a decade the temporal jurisdiction of the Special Court only covered a few years in the last part of a ten-year conflict, leaving a large part of atrocities without any prosecutions. Finally, the chapter addresses the Special Court’s prosecutions of all parties to the Sierra Leone conflict, including the controversial government-funded militia, in an attempt to avoid criticism as another “victors justice” court.
This chapter discusses the establishment of the Special Court for Sierra Leone as the first treaty-based international criminal tribunal between the United Nations and one of its Member States. Although the Special Court’s legal framework benefitted from the precedents of the International Criminal Tribunals for Former Yugoslavia and Rwanda, the process of the establishment of Special Court posed new challenges for the international community. First, the chapter assesses how the international community and the government of Sierra Leone had competing visions for the Special Court. While President Kabbah urged the UN to create a full ad-hoc international tribunal similar to the one for Rwanda, the Security Council had plans to create the court using a new more consensual treaty approach in an attempt to cut costs. Second, it discusses the influence of Security Council permanent members, especially the United States and the United Kingdom, in shaping the ultimate design of the treaty-based court as a means to maintain some United Nations authority while supporting domestic prosecutions in the country where the crimes were committed. Finally, the chapter examines the final signed treaty and the six major institutional features evident within the Court’s founding documents.
This chapter provides a summary of all the chapters in the book and the key claim that the Special Court for Sierra Leone, as the third ad ho international criminal tribunal, made important jurisprudential contributions that constitute a “legal legacy” that is relevant to the continued development of modern international criminal law.
This chapter begins the examination of the Special Court for Sierra Leone’s jurisprudence in a range of areas. It focused on Article 1(1) of the Special Court for Sierra Leone (SCSL) Statute giving that tribunal competence “to prosecute those who bear the greatest responsibility” for serious crimes committed during the Sierra Leonean conflict. The debate that arose during the SCSL trials was whether this statement constituted a jurisdictional requirement that the prosecution must prove beyond a reasonable doubt or merely a type of guideline for the exercise of prosecutorial discretion. The judges of the court split on this seemingly simple legal question. This chapter unpacks the reasoning of the SCSL. First, the chapter addresses the common ground among the judges and the Court’s ultimate conclusion that “greatest responsibility” implied that leaders, as well as the worst killers, may be prosecuted. Second, it demonstrates why the reasoning of the Appeals Chamber was results-oriented and wrong. Finally, referring to the work of other tribunals with a similar mandate, this chapter identifies the lessons of the Sierra Leone Court on greatest responsibility jurisdiction. It builds on them to offer preliminary recommendations on how the greatest responsibility confusion can be avoided when drafting personal jurisdiction clauses for future ad hoc international penal tribunals.
This chapter discusses the contributions of the landmark trial of Liberian President Charles Taylor, the first African former head of State, to be tried and convicted by an international criminal tribunal in a contested proceeding. Taylor was convicted in April 2013 for his role in planning, aiding, and abetting war crimes, crimes against humanity, and other serious violations of international humanitarian law which occurred during the Sierra Leone Conflict. The chapter examines the controversies associated with former President Taylor’s prosecution and the novel arguments addressing the waiver of immunity by a tribunal that was treaty-based and not created using the Security Council’s Chapter VII powers. Taylor argued that he was entitled to immunity under international law because the Special Court was a domestic court. In addition to examining the caselaw of the International Court of Justice, on which the Special Court relied to find that Taylor was not immune from prosecution, the chapter continues to discuss the historical and symbolic implications of this major prosecution for international criminal law. Finally, the chapter examines how the Special Court Taylor immunity decision has impacted the current case law relating to immunities and prosecution of heads of State at the International Criminal Court.
Sierra Leone was the first country to simultaneously deploy what are traditionally thought of as alternative post-conflict justice mechanisms: a special tribunal to prosecute crimes, and a truth and reconciliation commission to promote national healing and reconciliation. This chapter assesses the important Special Court jurisprudence on this topic and its implications for other post-conflict situations in Africa and around the world. In the first part, the chapter compares the similarities, and differences, in the mandates of the two institutions. The author then discusses how the TRC began its operations in 2002 at the same time as the Special Court was carrying out its investigations and issuing indictments against suspects accused of committing international crimes within the tribunal’s jurisdiction. Second, the chapter addresses the question of hierarchy and primacy between the two institutions: with the TRC being a domestic program and the Special Court maintaining an international authority. Finally, the chapter addresses the attempted testimony of a key SCSL defendant, or rather lack thereof, at the TRC and the tussle between the two bodies regarding protection of the fair trial rights of the suspects and the implications for future similar situations.
This chapter examines the jurisprudential contributions of the Special Court for Sierra Leone on the treatment of the legality of blanket amnesties for crimes under international law and the key reasons the Special Court determined that domestic amnesties cannot apply to international crimes. The chapter argues that the Appeals Chamber reasoning on this complex legal issue could have been clearer. First, the Court’s decision to create a broad holding for a narrowly posed question was unnecessary. Second, it analyzes the confusing Appeal Chamber’s holding in support of the trial court’s determination that amnesties could not apply to international crimes. Third, the chapter questions the Appeals Chamber and its approach to the analysis of what constitutes universal jurisdiction and jus cogens crime under international law. Finally, it raises concerns that a blanket ban on all amnesties, even conditional ones that parts of popularly supported peace agreements, may impact the possibilities of securing peace and may even serve to prolong the continued commission of international crimes in complex conflict situations in Africa and around the world.
This chapter examines the contribution of the Special Court for Sierra Leone caselaw on the prosecution of child recruitment as a war crime under international law. The Sierra Leone conflict was widely known for its conscriptions of children as child soldiers, who under the influence of fear, drugs, and hallucinogens committed grave atrocities across Sierra Leone. Although the crime of child recruitment and conscription was recognized in 1998 when the Rome Statute for the International Criminal Court was adopted, the Special Court was the first court to successfully charge and prosecute this particular war crime. In analyzing this novel prosecution, this chapter first addresses the creation and recognition of the war crime of child recruitment within the Rome Statute. Second, it examines the reasoning of the Appeals Chamber in holding that child recruitment is a crime recognized under customary international law. Third, it assesses the impact of the Special Court’s work on prosecuting child recruitment in developing the actus reus and mens rea of the crime. Finally, this chapter examines the impact of the Special Court on the International Criminal Court’s prosecutions of child recruitment in the recent cases of Lubanga and Ongwen.
In the last decade of the twentieth century, which had been quite bloody with several deadly conflicts, Sierra Leone, a relatively small country in West Africa just about the size of Austria in Europe and the American State of South Carolina, became the scene of one of the “greatest human tragedies” in modern history. The Sierra Leone war, which officially started on March 23, 1991 and ended on January 18, 2002, gained notoriety around the world for its brutality and the commission of some of the worst atrocities against civilians ever witnessed in a contemporary conflict. The conflict, which was characterized by widespread killings, mass amputations, abductions of women and children, recruitment and use of children as combatants, rape, sexual violence against mostly women and underage girls (including their taking as “bush wives”), arson, pillage, looting and burning, is estimated to have resulted in the deaths of between fifty and seventy thousand people. It also led to the displacement of about 2.6 million of the country’s population of 5 million, the maiming of thousands of others, and the wanton destruction of private and public property.
This chapter provides an overview of this book. It briefly discusses the brutal conflict that arose in Sierra Leone and the subsequent treaty between the United Nations and Sierra Leone that created the Special Court for Sierra Leone. Thereafter, it discusses the similarities and differences between the Special Court and the United Nations ad hoc international criminal tribunals. Although the International Criminal Tribunals for the Former Yugoslavia and Rwanda provided notable contributions to international criminal law, and were the modern pioneers, the work and legacy of the SCSL should not be forgotten. The failure to include the Special Court in these discussions overlooks vital developments given the Special Court’s important contributions to our understanding of personal jurisdiction, the war crime of child recruitment, the crime against humanity of forced marriage, immunity, amnesty and the relationship between truth commissions and criminal trials. It is submitted that recognizing the contributions, judgments, and precedents of the SCSL is beneficial to the entire international community as international criminal law continues to develop. Finally, the chapter provides a brief outline of the subsequent chapters contained in the book.
This important book considers whether the Special Court for Sierra Leone (SCSL), which was established jointly through an unprecedented bilateral treaty between the United Nations (UN) and Sierra Leone in 2002, has made jurisprudential contributions to the development of the nascent and still unsettled field of international criminal law. A leading authority on the application of international criminal justice in Africa, Charles Jalloh argues that the SCSL, as an innovative hybrid international penal tribunal, made useful jurisprudential additions on key legal questions concerning greatest responsibility jurisdiction, the war crime of child recruitment, forced marriage as a crime against humanity, amnesty, immunity and the relationship between truth commissions and criminal courts. He demonstrates that some of the SCSL case law broke new ground, and in so doing, bequeathed a 'legal legacy' that remains vital to the ongoing global fight against impunity for atrocity crimes and to the continued development of modern international criminal law.
This chapter examines the Special Court for Sierra Leone’s legal legacy through the novel prosecution of forced marriage as a crime against humanity. In the various SCSL trials, the Prosecutor had invoked “other inhumane acts” to argue that forcing kidnapped women and girls to marry militants during the civil war constituted a crime against humanity. As the Court would ultimately only hold that the AFRC and the RUF cases met the elements of the crime against humanity of forced marriage, the chapter examines the diverging rulings of two separate trial chambers on the new crime. The chapter then analyzes the Appeals Chamber’s ruling and interpretation of the precedents from the International Criminal Tribunals for the Former Yugoslavia and Rwanda in progressing the recognition of gender-based crimes. The chapter goes on to assess whether the Appeals Chamber judgment was based on existing law or whether the Court had sought to progressively develop the law to recognize forced marriage as a crime against humanity. Finally, it addresses the fair trial concerns raised by the addition of new crimes during an ongoing criminal proceeding. The author concludes that the Special Court rulings in this area constitute landmark contributions to international law.