Special court for sierra leone

36. 
    In view of the submissions made and in order to put the issues in proper perspective, the starting point is to determine the character of the Lomé Agreement. The Defence argues that it is an international agreement having the character of a treaty. The Prosecution, the amici curiae agreeing, argue that it is an agreement within municipal law between two bodies within the state.
    
37. 
    In regard to the nature of a negotiated settlement of an internal armed conflict it is easy to assume and to argue with some degree of plausibility, as Defence counsel for the defendants seem to have done, that the mere fact that in addition to the parties to the conflict, the document formalising the settlement is signed by foreign heads of state or their representatives and representatives of international organisations, means the agreement of the parties is internationalised so as to create obligations in international law.
    
38. 
    Indeed, such argument finds support in the opinion of Professor Kooijmans.³⁵ He used as an example the peace accord of 1994 embodied in the Lusaka Protocol concluded to end the armed conflict in Angola. The Lusaka Protocol was signed by the Presidents of the Republic of Angola and of UNITA and by the SRSG of the UN as mediator in the presence of the representatives of the observer states, the United States, Russia and Portugal. Admittedly, the Lusaka Protocol was not an inter-state agreement. However, upon UNITA failing to comply with the agreement, the Security Council by Resolution 1127 (1997) ordered mandatory travel sanctions to be imposed on senior UNITA officials; and if UNITA continued its obstruction the Council would take further measures such as trade and financial restrictions. The Council emphasised the “urgent need for the Government of Angola and in particular UNITA to complete without further delay the implementation of their obligations under the…Lusaka Protocol…and the relevant Security Council resolutions”³⁶ and deplored the failure by UNITA to comply with its obligations under the relevant peace accords (of which the Lusaka Protocol was one) and the Security Council resolutions. It then demanded that UNITA implement its obligations under the Lusaka Protocol. The Council determined that the resulting situation in Angola constituted a threat to international peace and security in the region, and in consequence acted under Chapter VII of the UN Charter in the measures it took. Upon these facts, Kooijmans was of the opinion as follows in regard to the Lusaka Protocol and the obligation it created:
    

39. 
    It is manifest that the learned commentator assumed that the Lusaka Protocol, though not in the form of a ‘genuine international instrument’ drew its ‘internationalised character’ from the factors he stated in the passage above. It is difficult to agree with this conclusion. The role of the UN as a mediator of peace, the presence of a peace-keeping force which generally is by consent of the State and the mediation efforts of the Secretary-General cannot add up to a source of obligation to the international community to perform an agreement to which the UN is not a party. As will be seen, action taken by the Security Council upon failure of a party to implement the peace agreement derives from Chapter VII of the UN Charter and not from the peace agreement.
    
40. 
    Almost every conflict resolution will involve the parties to the conflict and the mediator or facilitator of the settlement, or persons or bodies under whose auspices the settlement took place but who are not at all parties to the conflict, are not contracting parties and who do not claim any obligation from the contracting parties or incur any obligation from the settlement.
    
41. 
    In this case, the parties to the conflict are the lawful authority of the State and the RUF which has no status of statehood and is to all intents and purposes a faction within the state. The non-contracting signatories of the Lomé Agreement were moral guarantors of the principle that, in the terms of Article XXXIV of the Agreement, “this peace agreement is implemented with integrity and in good faith by both parties”. The moral guarantors assumed no legal obligation. It is recalled that the UN by its representative appended, presumably for avoidance of doubt, an understanding of the extent of the agreement to be implemented as not including certain international crimes.
    
42. 
    An international agreement in the nature of a treaty must create rights and obligations regulated by international law so that a breach of its terms will be a breach determined under international law which will also provide principle means of enforcement. The Lomé Agreement created neither rights nor obligations capable of being regulated by international law. An agreement such as the Lomé Agreement which brings to an end an internal armed conflict no doubt creates a factual situation of restoration of peace that the international community acting through the Security Council may take note of. That, however, will not convert it to an international agreement which creates an obligation enforceable in international, as distinguished from municipal, law. A breach of the terms of such a peace agreement resulting in resumption of internal armed conflict or creating a threat to peace in the determination of the Security Council may indicate a reversal of the factual situation of peace to be visited with possible legal consequences arising from the new situation of conflict created. Such consequences such as action by the Security Council pursuant to Chapter VII arise from the situation and not from the agreement, nor from the obligation imposed by it. Such action cannot be regarded as a remedy for the breach. A peace agreement which settles an internal armed conflict cannot be ascribed the same status as one which settles an international armed conflict which, essentially, must be between two or more warring States. The Lomé Agreement cannot be characterised as an international instrument. That it does not have that character does not, however, answer the further question whether, as far as grave crimes such as are stated in Articles 2 to 4 of the Statute of the Court are concerned, it offers any promise that is permissible or enforceable in international law.
    
43. 
    It was argued by Defence counsel that since the Lomé Agreement was ratified by the Parliament of Sierra Leone pursuant to the proviso to sub-section 4 of section 40 of the Constitution, it is a treaty or an agreement in the nature of a treaty. Subsection 4 of section 40 of the Constitution provided that:
    

44. 
    The application of that sub-section to the Lomé Agreement does not make the agreement a treaty or an international agreement. There is nothing obnoxious in construing the word “Agreement” in section 40 in its primary and natural sense which may not necessarily imply an international agreement. Besides, what is a treaty or an international agreement is not determined by the classification of a transaction by a State, but by whether the agreement is regarded as such under international law and regulated by international law.
    

45. 
    Notwithstanding the absence of unanimity among international lawyers as to the basis of the obligation of insurgents to observe the provisions of Common Article 3 to the Geneva Conventions,³⁸ there is now no doubt that this article is binding on States and insurgents alike and that insurgents are subject to international humanitarian law. That fact, however, does not by itself invest the RUF with international personality under international law.
    
46. 
    Common Article 3 of the Geneva Conventions recognises the existence of “Parties to the conflict”. The penultimate sentence of Common Article 3 provides that: “The parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention”. But the final clause of Common Article 3 also provides that “[t]he application of the preceding provisions shall not affect the legal status of the Parties to the conflict.” It has been explained that the penultimate sentence “underlines the fact that parties to an internal conflict are bound only to observe Article 3, remaining free to disregard the entirety of the remaining provisions in each of the Convention”³⁹ and that the final clause indicates that the insurgents may still be made subject to the State’s municipal criminal jurisdiction. In an authoritative book on international law the view was expressed that:
    

47. 
    It suffices to say, for the purpose of the present case, that no one has suggested that insurgents are bound because they have been vested with personality in international law of such a nature as to make it possible for them to be a party to the Geneva Conventions. Rather, a convincing theory is that they are bound as a matter of international customary law to observe the obligations declared by Common Article 3 which is aimed at the protection of humanity. No doubt, the Sierra Leone Government regarded the RUF as an entity with which it could enter into an agreement. However, there is nothing to show that any other State had granted the RUF recognition as an entity with which it could enter into legal relations or that the Government of Sierra Leone regarded it as an entity other than a faction within Sierra Leone.
    
48. 
    Although a degree of organisation of the insurgents may be a factor in determining whether the factual situation of internal armed conflict existed, the distinction must be borne in mind between the factual question whether the insurgents are sufficiently organised and the question of law, with which the issue in these proceedings is concerned, whether as between them and the legitimate government international law regarded them as having treaty-making capacity. International law does not seem to have vested them with such capacity. The RUF had no treaty-making capacity so as to make the Lomé Agreement an international agreement.
    
49. 
    The conclusion seems to follow clearly that the Lomé Agreement is neither a treaty nor an agreement in the nature of a treaty. However, it does not need to have that character for it to be capable of creating binding obligations and rights between the parties to the agreement in municipal law. The consequence of its not being a treaty or an agreement in the nature of a treaty is that it does not create an obligation in international law.
    
50. 
    The validity of Article IX of the Lomé Agreement in the municipal law of Sierra Leone is not of prime importance in these proceedings since the challenge to its validity had not been based on municipal law. It is expedient for this Court to confine itself to the limited questions that arise in regard to Article IX of the Lomé Agreement. These are, ultimately, whether in international law it bars this Court from exercising jurisdiction over the defendants in regard to crimes against humanity allegedly committed by them before the date of the Lomé Agreement, and whether it provides materials that are grounds for this Court to exercise a discretion to stay the proceedings as being an abuse of process.
    

51. 
    In these proceedings the validity of the constitutive instruments of the Special Court is not in issue. They are the documents that define the competence and jurisdiction of the Court and the provisions with which this Court is bound to comply. The purpose for which the Special Court is established, the nature of the Court as an autonomous, independent institution, and the jurisdiction of the Court have been discussed in paragraphs 12-15 above.
    
52. 
    The constitutive document of the Special Court (the Agreement) with the Statute of the Court annexed to and forming part of it, is a treaty.
    
53. 
    Article 1(1) of the Statute of the Special Court spells out the temporal jurisdiction of the Court while Article 10 expressly provides:
    

54. 
    Counsel for Kallon submitted that notwithstanding Article 10, this Court should exercise a discretion to stay the proceedings as being an abuse of process of the Court. The amnesty is thus not pleaded only as a legal bar to prosecution.⁴¹
    
55. 
    Counsel for Kallon put his submissions, summarised, thus: The claim by the Prosecution and Redress that Article 10 closes the door on any consideration of the applicability of the Lomé Accord to proceedings before the Special Court should not be accepted. The Special Court of Sierra Leone is a ‘hybrid’ court, established pursuant to an agreement between the UN and the Government of Sierra Leone. Thus, it could not have been established without the consent and agreement of the Government of Sierra Leone. If the Special Court were a truly international tribunal, established by Security Council Resolution (as in the case of the International Criminal Tribunals for Rwanda and the Former Yugoslavia), it is accepted that the actions of the Government of Sierra Leone and the amnesty would be of no relevance. This was confirmed by the Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia (ICTY) in Prosecutor v. Furundzija⁴² in which it was held that a domestic amnesty law would not prevent prosecution for torture before the ICTY or indeed in any other foreign jurisdiction. Furundzija did not consider, and is silent on, the circumstances in which it could be an abuse of process to prosecute torture in a domestic court after an undertaking that no criminal prosecution would ensue. In Furundzija the Trial Chamber set out the jurisdictions in which an individual could be prosecuted for torture following an amnesty: (i) international tribunal, (ii) foreign State, or (iii) in their own State under a subsequent regime.⁴³
    
56. 
    Counsel for Kallon went on to argue that in the Lomé Accord, the Government of Sierra Leone clearly undertook to “ensure that no official or judicial action is taken against any member of the RUF/SL”.⁴⁴ The Defence submitted that this would include acceding to an extradition request which would require ‘judicial action’ and, moreover, that there can be no doubt that the establishment of a Special Court to prosecute alleged crimes committed in Sierra Leone since 30 November 1996 amounts to both ‘official’ and ‘judicial’ action. Thus, according to the Defence, in engaging in negotiations with the UN and then ultimately concluding an agreement with them for the establishment of the Special Court, the Government of Sierra Leone clearly reneged on its undertaking in the Lomé Accord.
    
57. 
    The Defence argued that Article 10 of the Special Court Statute is not a bar to the Court considering whether the Government's actions in establishing the Special Court could render prosecution of those granted an amnesty an abuse of process. In Prosecutor v. Dusko Tadic,⁴⁵ the ICTY Appeals Chamber rejected the Prosecution's claim that the ICTY lacked authority to review its establishment by the Security Council. The Special Court must be able to do the same. The Defence submitted that as the Court is able to review the lawfulness of its own establishment it may similarly review the applicability of any one provision within its Statute. It may certainly hold that a provision of its Statute should not act as a bar to finding an abuse of process of the court.
    
58. 
    It was further argued that there was an inconsistent approach to amnesty in that the temporal jurisdiction of the Special Court, pursuant to Article 1(1) of the Statute commenced on 30 November 1996, selected to coincide with the conclusion of the Abidjan Peace Agreement, whereas Article 14 of the Abidjan Agreement granted an amnesty to all members of the RUF from any official or judicial action being taken against them. It was, therefore, contended that it was both arbitrary and illogical of both the UN and the Government of Sierra Leone to appear to honour the terms of one agreement and respect the amnesty granted, but not another.⁴⁶
    
59. 
    Moreover, the Defence speculated that the Office of the Prosecutor may have offered de facto amnesty to certain individuals known by the Prosecution to have committed offences similar to those alleged against Kallon. It was speculated whether such individuals had been offered immunity as a result of co­operation with the Prosecution and after agreement to act as Prosecution witnesses.
    
60. 
    For his part, counsel for Gbao (intervening) submitted that the Special Court has the jurisdiction to examine its own jurisdiction and, therefore, the power to determine whether it is bound by Article 10 of the Statute. Counsel argued that Article 10 relates to admissibility once jurisdiction is established. He submitted that if the laws of the international community and the law of Sierra Leone indicate that the Court does not have or should not exercise jurisdiction, the Court can make a finding either way, notwithstanding Article 10. The Special Court as a mechanism for maintaining international peace and security as well as national reconciliation, not only has inherent jurisdiction to decline to exercise jurisdiction where there has been an abuse of process of the court, “but also where there has been an abuse of the international legal system”.⁴⁷ In his submission, the Lomé Agreement created an internationally binding obligation.
    

4. 
   The question considered
   

61. 
    That this court will normally not claim jurisdiction to exercise a power of review of a treaty or treaty provisions on the ground that it is unlawful seems evident, except, perhaps in cases where it can be said that the provisions of Article 53 or Article 64 of the Vienna Convention on the Law of Treaties apply. Article 53 reads:
    

Article 64 reads:

62. 
    This court cannot question the validity of Article 10 of its Statute on the ground that it is unlawful unless it can be shown that, in the terms of Article 53 or Article 64 of the Vienna Convention or of customary international law it is void. That has not been shown in this case. It may be pointed out at this stage that the decision in Tadic upon which Kallon’s counsel relied as authority for the submission that this Court can pronounce on the lawfulness of its own establishment is not apt. The ICTY is not a treaty-based Tribunal, nor did the Tadic case involve the validity of the provisions of a treaty but rather the extent of the powers of the Security Council, an authority established by the UN Charter. Besides, the question may need to be revisited when the occasion arises as to the legal basis of the power of a body purportedly established as a court to make a binding declaration that it is not a court, when only a court legally established has jurisdiction to make such declaration that would have a binding force! The position would be different were a court duly established to be called upon to declare the limits of its powers.
    
63. 
    It was argued by counsel for Kallon that by agreeing to Article 10 of the Statute, the Government of Sierra Leone had reneged on the undertaking in Article IX(2) of the Lomé Agreement.⁴⁸ In interpreting the Lomé Agreement it must be presumed, on the basis of effectiveness, that the Government of Sierra Leone undertook only that which was within its power to perform. In this sense “official and judicial action” mentioned in Article IX(2) of the Lomé Agreement must relate to official and judicial action of Sierra Leone and not, as in this case, of the international community. No reasonable tribunal will hold that the Government of Sierra Leone has reneged on its undertaking by agreeing to Article 10 of the Statute which is consistent with the developing norm of international law and with the declaration of the representative of the Secretary-General on the execution of the Lomé Agreement. Besides, even if it can be said that the Government of Sierra Leone had reneged on its undertaking, it would not be valid ground for declaring the invalidity of Article 10. The grounds on which a party to a treaty can challenge its validity, apart from the ground that it is unlawful, are a manifest violation of a rule of internal law of fundamental importance, error, fraud, and corruption and coercion. These grounds operate as vitiating the consent of the party impugning the validity of the treaty and must be raised by the party who claims that its consent had been vitiated. No such grounds have been raised in this case in which the consent of Sierra Leone to the treaty was itself the grievance of the accused.
    
64. 
    It is evident that no ground on which the validity of Article 10 of the Statute can be impugned has been established. In the result, the line of reasoning pursued by counsel for the defendants and the intervening defendant, pursued to its logical conclusion, would lead to an absurd conclusion that although Article 10 is valid, since no ground on which its validity can be impugned has been established, this court, nevertheless, is not bound to comply with its provisions, but should, regardless of and contrary to its provisions, hold that by reason of the undertaking of the Government of Sierra Leone to grant an amnesty to the defendants, it has no jurisdiction to try the defendants for crimes committed before the date of the Agreement, or that it could exercise a discretion to stay proceedings on the ground that they amount to an abuse of process of the Court.
    
65. 
    What rightly falls for consideration is not whether the undertaking in the Lomé Agreement made by the Government of Sierra Leone to grant an amnesty is binding on the Government of Sierra Leone, but whether such undertaking could be effective in depriving this Court of the jurisdiction conferred on it by the treaty establishing it, and, if it could not be so effective, whether its existence is a ground for staying the proceedings by reason of the doctrine of abuse of process.