Special court for sierra leone

A. Introduction

1. 
   In summary, the grounds of the two applications, in so far as they are relevant to this Decision, are that the Government of Sierra Leone is bound to observe the amnesty granted under Article IX of the Peace Agreement between the Government of Sierra Leone and the Revolutionary United Front of Sierra Leone (“Lomé Agreement”);¹² the Special Court should not assert jurisdiction over crimes committed prior to July 1999 when an amnesty was granted by virtue of the Lomé Agreement and it would be an abuse of process to allow the prosecution of any of the alleged crimes pre-dating the Lomé Agreement.
   
2. 
   The Prosecution put its opposition to the Preliminary Motions in several ways. The Prosecution argues that the Special Court is bound by Article 10 of its Statute and that the Lomé Agreement, being an agreement between two national bodies, is limited in effect to domestic law and was, in any event, not intended to cover crimes mentioned in Articles 2 to 4 of the Statute of the Special Court (“Statute”). ¹³ Furthermore, it is contended that given the gravity of the crimes charged, discretion should not be exercised to grant a stay of proceedings on the basis that there has been an abuse of process of the Court.
   

3. 
   It is commonly said, though no such factual finding is made and can be made at this stage, that on 23 March 1991 forces of the Revolutionary United Front (RUF) entered Sierra Leone from Liberia and launched a rebellion to overthrow the one-party rule of the All Peoples’ Congress (APC). That was believed to be the beginning of the armed conflict in Sierra Leone which lasted until 7 July 1999 when the parties to the conflict signed the Lomé Agreement. There was an earlier peace agreement between the Government of Sierra Leone and RUF signed in Abidjan on 30 November 1996 (“Abidjan Peace Agreement”)¹⁴ but that collapsed soon after it was signed.
   
4. 
   On 7 July 1999 the Lomé Agreement was signed between the Government of Sierra Leone and the RUF, the parties to the Agreement having met in Lomé, Togo from 25 May 1999 to 7 July 1999 under the auspices of the Chairman of ECOWAS at the time, President Gnassingbe Eyadema.
   
5. 
   Among other things, the parties to the Lomé Agreement stated that they were moved “by the imperative need to meet the desire of the people of Sierra Leone for a definitive settlement of the fratricidal war in their country and for genuine national unity and reconciliation”.¹⁵
   
6. 
   Article 34 of the Lomé Agreement shows that the Government of the Togolese Republic, the United Nations, the OAU, ECOWAS and the Commonwealth of Nations stood as moral guarantors of the implementation of the Lomé Agreement with integrity and in good faith by both parties.
   

7. 
   At the centre of these proceedings is Article 9 of the Lomé Agreement which provides as follows:
   

PARDON AND AMNESTY

1. In order to bring lasting peace to Sierra Leone, the Government of Sierra Leone shall take appropriate legal steps to grant Corporal Foday Sankoh absolute and free pardon.

2. After the signing of the present Agreement, the Government of Sierra Leone shall also grant absolute and free pardon and reprieve to all combatants and collaborators in respect of anything done by them in pursuit of their objectives, up to the time of the signing of the present Agreement.

3. To consolidate the peace and promote the cause of national reconciliation, the Government of Sierra Leone shall ensure that no official or judicial action is taken against any member of the RUF/SL, ex-AFRC, ex-SLA or CDF in respect of anything done by them in pursuit of their objectives as members of those organisations since March 1991, up to the signing of the present Agreement. In addition, legislative and other measures necessary to guarantee immunity to former combatants, exiles and other persons, currently outside the country for reasons related to the armed conflict shall be adopted ensuring the full exercise of their civil and political rights, with a view to their reintegration within a framework of full legality.

8. 
   By a letter dated 12 June 2000 written to the President of the Security Council by the President of Sierra Leone on behalf of the Government and people of Sierra Leone,¹⁶ the President of Sierra Leone requested the President of the Security Council to initiate a process whereby the United Nations would resolve on the setting up of a Special Court for Sierra Leone.
   
9. 
   That letter reads as follows:
   

On behalf of the Government and people of the Republic of Sierra Leone, I write to request you to initiate a process whereby the United Nations would resolve on the setting up of a special court for Sierra Leone. The purpose of such a court is to try and bring to credible justice those members of the Revolutionary United Front (RUF) and their accomplices responsible for committing crimes against the people of Sierra Leone and for the taking of United Nations peacekeepers as hostages. This necessitates the establishment of a strong court in order to bring and maintain peace and security in Sierra Leone and the West African subregion. For this purpose, I request assistance from the United Nations Security Council in establishing a strong and credible court that will meet the objectives of bringing justice and ensuring lasting peace. To achieve this, a quick response from the Secretary-General and the Security Council is necessary.

As you are aware, the atrocities committed by the RUF in this country for nearly 10 years in its campaign of terror have been described generally as the worst in the history of civil conflicts. In July 1999, my Government and the leadership of the RUF signed the Lomé Peace Agreement. The aim of this Agreement was to bring peace and a permanent cessation to those atrocities and the conflict. As a prize for such peace, my Government even conceded to the granting of total amnesty to the RUF leadership and its members in respect of all the acts of terrorism committed by them up to the date of the signing of that Peace Agreement.

But the RUF leadership have since reneged on that Agreement, and have resumed their atrocities, which have always had as their targets mainly civilians, including women and children. They still murder and amputate them and use the women and girls as sex slaves. Lately, they have abducted over 500 United Nations peacekeepers and seized their arms, weapons and uniforms, and even killed some of the peacekeepers. This is in spite of a provision in the Lomé Peace Agreement itself requiring both my Government and the RUF to ensure the safety of these peacekeepers. In the process, the RUF have committed crimes against Sierra Leonean and international law and it is my Government’s view that the issue of individual accountability of the leadership of the RUF for such crimes should be addressed immediately and that it is only by bringing the RUF leadership and their collaborators to justice in the way now requested that peace and national reconciliation and the strengthening of democracy will be assured in Sierra Leone.

I am aware of similar efforts made by the United Nations to respond to similar crimes against humanity in Rwanda and the former Yugoslavia. I ask that similar considerations be given to this request.

I believe that crimes of the magnitude committed by the RUF in this country are of concern to all persons in the world, as they greatly diminish respect for international law and for the most basic human rights. It is my hope that the United Nations and the international community can assist the people of Sierra Leone in bringing to justice those responsible for those grave crimes.

Because of the sensitivity aroused in Sierra Leone and around the world by the activities of the RUF and their collaborators and the need to dispose of the matters to be tried at the proposed tribunal without delay, I am inviting you or the Security Council to send to Sierra Leone immediately a rapid response team of inquiry to assess the needs and concerns regarding my Government’s ability to provide effective, secure, fair and credible justice.

With regard to the magnitude and extent of the crimes committed, Sierra Leone does not have the resources or expertise to conduct trials for such crimes. This is one of the consequences of the civil conflict, which has destroyed the infrastructure, including the legal and judicial infrastructure, of this country. Also, there are gaps in Sierra Leonean criminal law as it does not encompass such heinous crimes as those against humanity and some of the gross human rights abuses committed by the RUF. It is my view, therefore, that, unless a court such as that now requested is established here to administer international justice and humanitarian law, it will not be possible to do justice to the people of Sierra Leone or to the United Nations peacekeepers who fell victim to hostage-taking.

I attach hereto a suggested framework for the type of court intended (see enclosure). As you can see, the framework is meant to produce a court that will meet international standards for the trial of criminal cases while at the same time having a mandate to administer a blend of international and domestic Sierra Leonean law on Sierra Leonean soil.

(Signed) Alhaji Ahmad Tejan Kabbah

10. 
    After reiterating that “the situation in Sierra Leone continues to constitute a threat to international peace and security in the region”¹⁷ and expressing “concern at the very serious crimes committed within the territory of Sierra Leone against the people of Sierra Leone and United Nations and associated personnel and at the prevailing situation of impunity”¹⁸ the Security Council adopted Resolution 1315 (2000), on its own independent assessment of the situation, whereby the Secretary-General was mandated to negotiate an agreement with the Government of Sierra Leone to create an independent special court consistent with the resolution.
    
11. 
    In a clause in the Preamble to Resolution 1315, the Security Council reaffirmed the importance of compliance with international humanitarian law; that persons who commit or authorise serious violations of international humanitarian law are individually responsible and accountable for those violations; and that the international community will exert every effort to bring those responsible to justice in accordance with international standards of justice, fairness and due process of law.¹⁹ The establishment of the Special Court was thus an implementation of the determination of the Security Council to bring those responsible for serious violations of international humanitarian law to justice.
    

12. 
    On 16 January 2002, after a successful negotiation between the Secretary-General and the Government of Sierra Leone, an agreement was entered into by the United Nations and the Government of Sierra Leone whereby the Special Court for Sierra Leone was established (“Agreement”).²⁰
    
13. 
    The Special Court was established for the sole purpose of prosecuting persons who bear the greatest responsibility for serious violations of international humanitarian law and Sierra Leonean law committed in the territory of Sierra Leone since 30 November 1996. The competence of the Special Court was extended in its Statute by the addition in Article 1 of the words “including those leaders who, in committing such crimes, have threatened the establishment of and implementation of the peace process in Sierra Leone.”
    
14. 
    The Special Court, though established by an agreement between the United Nations and the Government of Sierra Leone, is an autonomous and independent institution vested with juridical capacity by Article 11 of the Agreement. The involvement of the Government of Sierra Leone in the Special Court after its establishment is defined by the Agreement. It is limited to participation in the appointment of judges, prosecutor and deputy prosecutor, as provided, respectively, in Articles 2 and 3 of the Agreement, and participation in the Management Committee as provided for in Article 7 of the Agreement. The Sierra Leone Government undertook certain responsibilities of a non-managerial nature in regard to the Special Court, such as an obligation to assist in the provision of premises for the Court, and such utilities, facilities and other services as may be necessary for its operation;²¹ to grant immunity and inviolability to counsel of a suspect or an accused as provided for in Article 14; and to co-operate with the Special Court as provided for in Article 17.
    
15. 
    The Statute of the Special Court defined the jurisdiction of the Court as follows:
    

1. The Special Court shall, except as provided in subparagraph (2), have the power to prosecute persons who bear the greatest responsibility for serious violations of international humanitarian law and Sierra Leonean law committed in the territory of Sierra Leone since 30 November 1996, including those leaders who, in committing such crimes, have threatened the establishment of and implementation of the peace process in Sierra Leone.

2. 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.

3. In the event the sending State is unwilling or unable genuinely to carry out an investigation or prosecution, the Court may, if authorized by the Security Council on the proposal of any State, exercise jurisdiction over such persons.

1. 
   Murder;
   
2. 
   Extermination;
   
3. 
   Enslavement;
   
4. 
   Deportation;
   
5. 
   Imprisonment;
   
6. 
   Torture;
   
7. 
   Rape, sexual slavery, enforced prostitution, forced pregnancy and any other form of sexual violence;
   
8. 
   Persecution on political, racial, ethnic or religious grounds;
   
9. 
   Other inhumane acts.
   

Article 3: Violations of Article 3 common to the Geneva Conventions and of Additional Protocol II

The Special Court shall have the power to prosecute persons who committed or ordered the commission of serious violations of article 3 common to the Geneva Conventions of 12 August 1949 for the Protection of War Victims, and of Additional Protocol II thereto of 8 June 1977. These violations shall include:

a. Violence to life, health and physical or mental well-being of persons, in particular murder as well as cruel treatment such as torture, mutilation or any form of corporal punishment;

b. Collective punishments;

c. Taking of hostages;

d. Acts of terrorism;

e. Outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault;

f. Pillage;

g. The passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples;

h. Threats to commit any of the foregoing acts.

Article 4: Other serious violations of international humanitarian law

The Special Court shall have the power to prosecute persons who committed the following serious violations of international humanitarian law:

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 assistance 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. Conscripting or enlisting children under the age of 15 years into armed forces or groups or using them to participate actively in hostilities.

Article 5: Crimes under Sierra Leonean law

The Special Court shall have the power to prosecute persons who have committed the following crimes under Sierra Leonean law:

a. Offences relating to the abuse of girls under the Prevention of Cruelty to Children Act, 1926 (Cap. 31):

(i) Abusing a girl under 13 years of age, contrary to section 6;

(ii) Abusing a girl between 13 and 14 years of age, contrary to section 7;

(iii) Abduction of a girl for immoral purposes, contrary to section 12.

b. Offences relating to the wanton destruction of property under the Malicious Damage Act, 1861:

(i) Setting fire to dwelling - houses, any person being therein, contrary to section 2;

(ii) Setting fire to public buildings, contrary to sections 5 and 6;

(iii) Setting fire to other buildings, contrary to section 6.

16. 
    It is evident from the brief historical background that the events starting from the launching of the rebellion in March 1991 and ending with the establishment of the Special Court, described here as ‘the Sierra Leone situation’, have three discernible phases, namely: (1) the phase of armed conflict; (2) the Peace Agreement phase and (3) the Justice phase. There are legal perspectives which have some bearing on the issues raised by the Preliminary Motions to each of these phases of the Sierra Leone situation.
    
17. 
    It must be assumed, since the facts of the case have not been gone into, that the phase of armed conflict was of such a degree as to be recognised as an insurgency, passing beyond the threshold of a rebellion that could be dealt with internally as a matter of domestic security and to be regulated by domestic law, to a level of conflict that had to be regulated by Common Article 3 of the Geneva Conventions. The parties, whether from the Government side or the insurgents, were thereby subjected to the obligations imposed by international law in a situation of internal armed conflict. The competence of the Special Court to prosecute persons who committed violations of Common Article 3 is the basis of that assumption.
    
18. 
    The Peace Agreement Phase signifies the end of the armed conflict by means of a peaceful settlement. One legal consequence of that phase is that international humanitarian law would normally cease to be applicable to any act of violence in the peace period unless, notwithstanding what would have been regarded as a peaceful resolution, one party or both parties, in breach thereof, continued the armed conflict. Presumably, it is in further protection of the peace process that the competence of the Special Court includes in Article 1(1) of the Statute the prosecution of “those leaders who, in committing such crimes, have threatened the establishment of and implementation of the peace process in Sierra Leone.” Thereby, impunity is denied to any such person, notwithstanding that there had been a peace agreement which constituted some sort of peaceful resolution of the conflict.
    
19. 
    The Justice Phase is that phase in which participants in the armed conflict have to answer for crimes committed in the course of the armed conflict. The justice phase itself involves separating what is in the exclusive domain of the municipal authority to be resolved under municipal law from what is in the concurrent jurisdiction of that authority and of the international community to be resolved by application purely of international law.
    

20. 
    Whether to prosecute the perpetrators of rebellion for their act of rebellion and challenge to the constituted authority of the State as a matter of internal law is for the state authority to decide. There is no rule against rebellion in international law.²² The State concerned may decide to prosecute the rebels. It may decide to pardon them, generally or partially, conditionally or unconditionally. It is where, and in this case because, the conduct of the participants in the armed conflict is alleged to amount to international crime that the question arises whether in such a situation a State has the same choice to dispense with the prosecution of the alleged offenders. Furthermore, if it claims to have such choice and exercises it to grant amnesty to alleged offenders, does this conclusively bar prosecution for the alleged commission of grave crimes against humanity in an international tribunal or, for that matter, by another state claiming universal jurisdiction to prosecute?
    
21. 
    The Preliminary Motions with which this ruling is concerned arose because the Government of Sierra Leone included in the Lomé Agreement Article IX which contained ‘Pardon and Amnesty’ provisions in terms already stated above, whereby, among other things, it undertook to “grant absolute and free pardon and reprieve to all combatants and collaborators” and undertook also to “ensure that no official or judicial action is taken against any member of the RUF/SL, ex-AFRC, ex-SLA or CDF in respect of anything done by them in pursuit of their objectives as members of those organizations”.²³ The Motions argue, in effect, that the amnesty granted by the Lomé Agreement in Article IX amounts to an unconditional pardon and that, as such, it was a choice validly made by the Sierra Leone Government that conclusively precluded the prosecution of the accused Kallon and Kamara for any crime whatsoever allegedly committed before the date of the Lomé Agreement by this Court.
    

2. 
   Arguments of the Parties
   

22. 
    Counsel for the accused Kallon made submissions on the following main lines:²⁴
    

1. 
   The Lomé Accord was binding on the Government of Sierra Leone;
   
2. 
   The abuse of process doctrine applies to proceedings before the Special Court and crimes of a serious nature;
   
3. 
   Article 10 of the Special Court Statute is not a bar to the application of the abuse of process doctrine;
   
4. 
   Not all amnesties, including the Lomé Accord, are unlawful under international law;
   
5. 
   Morris Kallon acted in good faith pursuant to the Lomé Accord.
   

23. 
    It is not necessary to approach the issues raised by the Preliminary Motions strictly on those lines. It suffices to consider the issues raised and to advert to submissions made by counsel for the parties and by the amici curiae in the discussion of those issues.
    
24. 
    The submissions by counsel for Kallon on the Lomé Agreement proceeded on the following lines: as part of the Agreement the Government of Sierra Leone stated that it would, in order to “consolidate the peace and promote the cause of national reconciliation,” ensure that “no official or judicial action is taken against any member of the RUF/SL, ex-AFRC, ex-SLA or CDF in respect of anything done by them in pursuit of their objectives as members of those organisations, since March 1991, up to the time of signing the present agreement”.²⁵
    
25. 
    Defence counsel for Kallon pointed out that the Lomé Accord was ratified by the Parliament of Sierra Leone on 15 July 1999 with the passage of the Lomé Peace Agreement (Ratification) Act, 1999 ("Lomé Act").²⁶ According to the Defence, since the Preamble to the Lomé Act states that as the Lomé Agreement contained provisions which “alter the law of Sierra Leone and impose a charge on the Consolidated Fund and other funds of Sierra Leone” it was necessary for Parliament to ratify it pursuant to Section 40(4) of the Constitution of Sierra Leone, 1991 (“The Constitution”). Such ratification is only required by Section 40(4) of the Constitution where the President has entered a “Treaty, Agreement, or Convention” in the name of Sierra Leone. Thus, according to the Defence, the Lomé Accord is governed by the 1969 Vienna Convention on the Law of Treaties.²⁷
    
26. 
    Defence Counsel for Kallon argued that the Special Representative of the Secretary-General ("SRSG") purportedly appended a disclaimer to the Lomé Agreement to the effect that the UN did not recognise the validity of the amnesty in respect of war crimes, crimes against humanity or genocide. The Defence argued that the Secretary-General's Report only states that an instruction was given to the SRSG - not that it was carried out.²⁸ The Defence observed that it is not clear when and how such a disclaimer was made - whether orally or in writing at the time of signature or indeed sometime after 7 July 1999. Although the Orentlicher Amicus Brief stated that the instructions given to the SRSG to append a disclaimer were issued pursuant to policy guidelines issued by the UN Secretary-General to assist envoys and representatives involved in peace negotiations,²⁹ that cannot be right according to Kallon’s defence. The Amicus Brief implied that the policy was issued pursuant to a Statement of Secretary-General Kofi Annan on 10 December 1999. Thus, the Defence argued, it would appear that the guidelines were formulated after the adoption of the Lomé Agreement, perhaps in order to avoid any repeat of the confusion or misunderstanding as to the UN's position resulting from Lomé. The SRSG's disclaimer is and was limited to any action to be taken by the UN, and the Government of Sierra Leone itself was expected to abide by and honour the amnesty provision.
    
27. 
    The Defence argued that at the time of signing the Lomé Agreement it was widely accepted that the price of peace was an amnesty for the warring factions, as the various members of the Security Council explained when adopting Resolution 1260.³⁰
    
28. 
    The Defence refers to the State Opening of Parliament (16 June 2000) where President Kabbah said: “My Government for its part remains committed to the Lomé Peace Accord, but the RUF must now demonstrate its own commitment and sincerity, in very practical ways, to convince the people of this country that they will implement the letter and spirit of the Accord and ensure lasting peace and prosperity in Sierra Leone”.³¹
    
29. 
    Furthermore, there was the statement to the Truth and Reconciliation Commission on 5 August 2003 as follows:
    

30. 
    For their part counsel for Fofana argued first, that the Lomé Agreement is an agreement under international law because it was signed by six states and a number of international organisations as well as by the RUF which, it was argued, was an entity subject to rights and obligations which as de facto authority possessed limited international personality; second, that obligations arising from the Lomé Agreement, regarded as a treaty, cannot be altered by later treaties without the consent of the parties and, third, that international law does not prohibit the granting of amnesties.³³
    
31. 
    Counsel for Gbao submitted in line with the submissions made by the other Defence counsel that the Lomé Agreement created an internationally binding obligation not to prosecute the beneficiaries of the amnesty under the Agreement.³⁴
    
32. 
    The Prosecution’s response was that the Lomé Agreement is not a treaty but an agreement signed between two national bodies. It was submitted that others who signed the agreement did not do so as parties but as moral guarantors who were facilitating and supporting the conclusion of the Agreement; the Lomé Agreement has no force under international law but was an agreement which had no legal basis until it was ratified by the enactment of the Lomé Act which itself had force only as a domestic law; the Lomé Agreement is no longer effective in domestic law since the Lomé Ratification Act had been impliedly repealed by the enactment of the Special Court (Ratification) Act 2002 (“the Implementing Legislation”); the disclaimer by the SRSG at the time of the signature of the Lomé Agreement that Article IX shall not apply to international crimes of genocide, crimes against humanity, war crimes and other serious violations of international humanitarian law was a correct interpretation by the UN of Article IX, and, on that correct interpretation, the Lomé Agreement does not apply to the prosecution of persons pursuant to the Statute of the Special Court.
    
33. 
    In the arguments presented by the Redress Trust (“Redress”) as amicus curiae, it was submitted that the Special Court would in effect be questioning a measure taken by the Security Council under Chapter VII of the UN Charter if it took it upon itself to review the validity of the exception of the applicability of the Lomé amnesty for serious international crimes that was specifically requested in Resolution 1315. The amnesty granted by the Government of Sierra Leone cannot be interpreted as covering violations of international humanitarian law. The Lomé amnesty was a domestic amnesty. Premised on an obligation to prosecute or extradite persons accused of crimes under international law, it was submitted that application of an amnesty would be an unlawful interference with that duty. Appended to the written submissions of Redress are numerous useful materials in support of the submissions.
    
34. 
    Professor Diane Orentlicher who was invited as amicus curiae made useful and extensive submissions which can be summarised as follows. As Article IX of the Lomé Agreement addressed and could have legal force in respect of the national legal system of Sierra Leone only, the amnesty does not legally circumscribe the jurisdiction of the Special Court which has been established outside the national court system and operates independently of the Sierra Leonean national system. Any amnesty that encompasses crimes against humanity, serious war crimes, genocide or torture would be of doubtful validity under international law. However, Article IX of the Lomé Agreement was addressed to the question of prosecutions before national courts of Sierra Leone. States cannot use domestic legislation to bar international criminal liability.
    
35. 
    Professor Orentlicher argued that there can be no amnesty where a treaty requires prosecution, or has been interpreted or would be likely to be interpreted by their supervisory bodies as requiring state parties to investigate and, if warranted, prosecute serious violations.