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Preserving the Legacy of the Special Court for Sierra Leone: Challenges and Lessons Learned in Prosecuting Grave Crimes in Sierra Leone

Published online by Cambridge University Press:  28 October 2009

JOSEPH F. KAMARA
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Abstract

Sierra Leone experienced particularly heinous and widespread crimes against humanity and war crimes during its eleven years of civil war from 1991 to 2002. During the war, the civilian population was targeted by all the fighting factions. Civilians were captured, abducted, and held as slaves used for forced labour. The Special Court for Sierra Leone was established by the government of Sierra Leone and the United Nations in 2002, through Security Council Resolution 1315. It is mandated to try those who bear the greatest responsibility for serious violations of international humanitarian law and Sierra Leonean law committed in Sierra Leone since 30 November 1996. The aim of this paper is to sketch out the extent to which the jurisprudence of the Special Court can serve as a model for efficient and effective administration of criminal justice nationally through the preservation of its legacy.

Keywords

building a legal culture of accountability
Type
HAGUE INTERNATIONAL TRIBUNALS: Special Court for Sierra Leone
Information
Leiden Journal of International Law , Volume 22 , Issue 4 , December 2009 , pp. 761 - 777
Copyright
Copyright © Foundation of the Leiden Journal of International Law 2009

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References

1 AFRC Trial Judgment, Case No. SCSL-2004-16-T, Judgment, 20 June 2007.

2 CDF Trial Judgment, Case No. SCSL-04-14-T, Sentencing Judgment, 2 August 2007.

3 Statute of the Special Court for Sierra Leone, (2002) 2178 UNTS 138.

4 Prosecutor v. Charles Ghankay Taylor, Case No. SCSL-2003–01, Decision on Immunity from Jurisdiction, Appeals Chamber, 31 May 2004, at para. 40.

5 The Supreme Court of Sierra Leone, SC No. 1/2003, at 10 (Judgment delivered on 13 October 2005).

6 SCSL-03-01-015, 23 July 2003.

7 Decision on Immunity from Jurisdiction, Appeals Chamber, 31 May 2004.

8 Ibid., para. 1.

9 Case Concerning the Arrest Warrant of 11 April 2000 (Belgium v. Democratic Republic of Congo), Judgment, [2002] ICJ Rep. 3.

10 Ibid., para. 61

11 J. A. D. Alie, ‘Reconciliation and Traditional Justice: Tradition-Based Practices of the Kpaa Mende in Sierra Leone’, in L. Huyse and M. Salter (eds.), Traditional Justice and Reconciliation after Violent Conflict (2008), 132.

12 Rules of Procedure and Evidence of the Special Court for Sierra Leone, as Amended, 27 May 2008 (hereinafter RPE).

13 Hon. Justice Dr B. Thompson, ‘Lessons and Insights from the Jurisprudence of the Special Court for the National Judiciary: A Legacy Perspective', public lecture, Freetown, 3 December 2008.

14 RPE, supra note 12, Rule 78.

15 Ibid., Rule 42.

16 Ibid., Rules 47–52.

17 Ibid., Rule 47(c).

18 Ibid., Rule 52(A).

19 Ibid., Rule 63.

20 Ibid., Rules 66–68.

21 Ibid., Rule106.

22 Ibid., Rule 115.

23 Ibid., Rule 120.

24 Thompson, supra note 13.

25 Report of the Preparatory Committee on the Establishment of an International Criminal Court, ICCA/CONF.183/2/Add.1, 14 April 1998, 21

26 AFRC Appeal Judgement, Case No. SCSL-2004-16-A, 22 February 2008, para. 190.

27 Ibid., Doherty (Partly Dissenting Opinion), para. 53.

28 Ibid., at paras. 48, 51 (stating that ‘[s]erious psychological and moral injury follows forced marriage. Women and girls are forced to associate with and in some cases live together with men whom they may fear or despise. Further, the label ‘wife’ may stigmatize the victims and lead to their rejection by their families and community, negatively impacting their ability to reintegrate into society and thereby prolonging their mental trauma’).

29 Ibid., at paras. 1122, 1139, 1161.

30 Ibid., at paras. 1138, 1141.

31 For example, one witness was abducted as a ‘wife’ moments after her parents were killed in front of her. See AFRC Trial Judgment, supra note 1, paras. 1078, 1088.

32 Ibid., paras. 1082, 1083, 1085, 1091, 1096, 1154, 1164, 1165.

33 Ibid., at paras. 1080, 1081, 1130, 1165.

34 Ibid., at paras. 1157, 1161. See also Doherty Partly Dissenting Opinion, paras. 48, 49.

35 See AFRC Trial Judgment, supra note 1, paras. 1081, 1092.

36 Ibid., at paras. 614, 617, 621.

37 Ibid., at para. 624.

38 Kupreškić Trial Judgement, Case No. IT-95-16-T, Judgement, 14 January 2000, para. 563. The category of ‘other inhumane act’ was included in Art. 6(c) of the Nuremburg Charter to close any loophole left by offences not specifically mentioned. It was deliberately designed as a residual category as it was felt undesirable that this category be exhaustively enumerated. An exhaustive list would merely create opportunities for evasion of the letter of the prohibition. See also Stakić Appeal Judgement, Case No. IT-97-24-A, Judgement, 22 March 2006, para. 315; Blagojević Trial Judgement, Case No. IT-02-60-T, Judgement, 17 January 2005, para. 625; Rutaganda Trial Judgement, Case No. ICTR-96-3-T, Judgement, 6 December 1999, para. 77; Kayishema Trial Judgement, Case No. ICTR-95-1-T, Judgement, 21 May 1999, para. 149.

39 Blagojević Trial Judgement, supra note 38, para. 625; Akayesu Trial Judgement, Case No. ICTR-96-4-T, Judgement, 2 September 1998, para. 585 (‘The categories of crimes against humanity are set out in Art. 3, but this category is not exhaustive. Any act which is inhumane in nature and character may constitute a crime against humanity, provided the other elements are met’).

40 Stakić Appeal Judgement, supra note 38, para. 317; Blagojević Trial Judgement, supra note 38, para. 629; Krstić Trial Judgement, Case No. IT-98-33-T, Judgement, 2 August 2001, para. 523.

41 Kajelijeli Trial Judgement, Case No. ICTR-98-44A-T, Judgement and Sentence, 1 December 2003, para. 936; Niyitegeka Trial Judgement, Case No. ICTR-96-14-T, Judgement and Sentence, 16 May 2003, para. 465.

42 Naletilić Trial Judgement, para. 271; Vasiljević Trial Judgement, para. 239; Blaškić Trial Judgement, para. 239; Tadić Trial Judgement, paras. 730, 737, 744.

43 Akayesu Trial Judgement, supra note 39, para. 697.

44 Ibid., at para. 697.

45 Kvočka Trial Judgement, Case No. IT-98-30-T, Judgement, 2 November 2001, paras. 206–209.

46 See Kordić Trial Judgement, Case No. IT-95-14/2-T, Judgement, 26 February 2001, para. 800 (finding that conditions varied from camp to camp but that detained Muslims were used as human shields and were forced to dig trenches); Galić Trial Judgement, para. 599 (finding that there was a co-ordinated and protracted campaign of sniping, artillery, and mortar attacks upon civilians); Tadić Trial Judgment, supra note 39, paras. 730, 737, 744 (finding that there were several incidents of assaults upon and beating of prisoners at a camp) and Niyitegeka Trial Judgment, supra note 42, paras. 462, 465 (finding that the accused was rejoicing when a victim was killed, decapitated, castrated and his skull was pierced with a spike).

47 Vasiljević Trial Judgment, Case No. IT-98-32-T, Judgement, 29 November 2002, para. 235; Krnojelac Trial Judgment, Case No. IT-97-25-T, Judgement, 15 March 2002, para. 131; Kayishema Trial Judgment, supra note 37, paras. 150, 151.

48 Stakić Appeal Judgement, supra note 38, para. 315; Blagojević Trial Judgment, supra note 37, para. 624.

49 AFRC Trial Judgment, supra note 1, para. 698.

50 Ibid., Sebutinde Separate Concurring Opinion, paras. 10, 12; Doherty Partly Dissenting Opinion, para. 36.

51 Sebutinde Separate Concurring Opinion, supra note 50, para. 12.

52 CDF Appeal Judgement, SCSL-04-14-A, Judgment, 28 May 2008, para. 531. See also para 530: ‘International humanitarian law specifically removes a party's political motive and the “justness” of a party's cause from consideration. The basic distinction and historical separation between jus ad bellum and jus in bello underlies the desire of States to see that the protections afforded by jus in bello (i.e., international humanitarian law) are “fully applied in all circumstances to all persons who are protected by those instruments, without any adverse distinction based on the nature or origin of the armed conflict or on the causes espoused by or attributed to the Parties to the conflicts.” The political motivations of a combatant do not alter the demands on that combatant to ensure that their conduct complies with the law’ (internal references removed).

53 S. Charters et al., ‘Best-Practice Recommendations for the Protection and Support of Witnesses. An Evaluation of the Witness and Victims Section’, Special Court for Sierra Leone, 2008.

54 RPE, supra note 12, Rules 66–68.