Chapter 4 delves into the practice of the international judiciary and, specifically, international war crimes tribunals and the International Court of Justice (ICJ). By analysing the approaches of post–World War II tribunals, the committee established to review the 1999 NATO bombing campaign in the Former Yugoslavia, the Special Court for Sierra Leone, and the International Criminal Court, the first part of the chapter reflects on the conceptual, normative, and practical limitations of international criminal law. The second part provides a critical reading of two important ICJ cases, the Nuclear Weapons Advisory Opinion and the Armed Activities case (Congo v. Uganda), dealing respectively with the ecological devastation of nuclear weapons and pillage of natural resources in the Congo. The chapter ultimately contends that international justice, both in its criminal and inter-state dimensions, is concerned about individual/state agency, quantifiable harm, and its proximate causes. Thinking in these narrow terms about the ecological impacts of militarism and resource extraction associated with conflict fails to grasp the structural dimensions of the problem, the plurality of actors involved, and the obligations owed to other human and non-human beings.

The term conflict management stands for a wide array of activities undertaken to prevent violent conflicts, to manage and end them once broken out, as well as to build peace and to avoid a recurrence of violence. Such activities include mediation between warring factions, military and civilian peacekeeping operations to oversee truces or peace agreements, peace enforcement, and post-conflict reconstruction, which comprises initiatives for state-building and socio-economic development amongst others. This chapter scrutinizes these activities and identifies factors that lead to peace. It concentrates on mediation and power-sharing as means to make peace, on military and civilian operations of international organizations as means to keep peace, as well as on the accommodation of spoilers, the design of peace operations, and transitional justice as means to build peace.

Charles Taylor was President of Liberia between 1997 and 2003, trader in arms, timber and minerals and initiator of the first phase of the Liberian civil war. He is currently serving a fifty year prison sentence for his involvement in war crimes and crimes against humanity during the armed conflict in Sierra Leone. This chapter examines how the Special Court for Sierra Leone (SCSL) established the linkage between Taylor as a high level economic actor in Liberia and international crimes in neighbouring Sierra Leone through modes of liability, in particular aiding and abetting. Further, in view of Taylor's position as head of State for most of the period covered by the SCSL indictment and the nature of groups such as the Revolutionary United Front (RUF), issues of State and organizational responsibility are addressed, including the reasons for prioritising individual criminal responsibility. Finally, the chapter considers the findings and recommendations of the Liberian Truth and Reconciliation Commission concerning the role of economic actors and economic activities in contributing to, and benefiting from the armed conflict in Liberia.

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 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.

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.

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 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.