Special court for sierra leone

66. 
    Black’s Law Dictionary defines ‘amnesty’ in the following terms:
    

It is also stated that:

67. 
    The grant of amnesty or pardon is undoubtedly an exercise of sovereign power which, essentially, is closely linked, as far as crime is concerned, to the criminal jurisdiction of the State exercising such sovereign power. Where jurisdiction is universal,⁵¹ a State cannot deprive another State of its jurisdiction to prosecute the offender by the grant of amnesty. It is for this reason unrealistic to regard as universally effective the grant of amnesty by a State in regard to grave international crimes in which there exists universal jurisdiction. A State cannot bring into oblivion and forgetfulness a crime, such as a crime against international law, which other States are entitled to keep alive and remember.
    
68. 
    A crime against international law has been defined as “an act committed with intent to violate a fundamental interest protected by international law or with knowledge that the act would probably violate such an interest, and which may not be adequately punished by the exercise of the normal criminal jurisdiction of any state.”⁵² In re List and Others, the US Military Tribunal at Nuremberg defined an international crime as: “such act universally recognized as criminal, which is considered a grave matter of international concern and for some valid reason cannot be left within the exclusive jurisdiction of the State that would have control over it under ordinary circumstances.”⁵³ However, not every activity that is seen as an international crime is susceptible to universal jurisdiction.⁵⁴
    
69. 
    The question is whether the crimes within the competence of the Court are crimes susceptible to universal jurisdiction. The crimes mentioned in Articles 2–4 of the Statute are international crimes and crimes against humanity. Indeed, no suggestion to the contrary has been made by counsel. One of the most recent decisions confirming the character of such crimes is the Tadić Jurisdiction Decision.⁵⁵ The crimes under Sierra Leonean law mentioned in Article 5 do not fall into the category of such crimes and are not mentioned in Article 10.
    
70. 
    One consequence of the nature of grave international crimes against humanity is that States can, under international law, exercise universal jurisdiction over such crimes. In Attorney General of the Government of Israel v. Eichmann the Supreme Court of Israel declared:
    

Also, in Congo v Belgium⁵⁷ it was held by the International Court of Justice that certain international tribunals have jurisdiction over crimes under international law. This viewpoint was similarly held by the ICTY in Furundzija.⁵⁸

71. 
    After reviewing international practice in regard to the effectiveness or otherwise of amnesty granted by a State and the inconsistencies in state practice as regards the prohibition of amnesty for crimes against humanity, Cassese conceptualised the status of international practice thus:
    

The opinion stated above is gratefully adopted. It is, therefore, not difficult to agree with the submission made on behalf of Redress that the amnesty granted by Sierra Leone cannot cover crimes under international law that are the subject of universal jurisdiction. In the first place, it stands to reason that a state cannot sweep such crimes into oblivion and forgetfulness which other states have jurisdiction to prosecute by reason of the fact that the obligation to protect human dignity is a peremptory norm and has assumed the nature of obligation erga omnes.⁶⁰

72. 
    In view of the conclusions that have been arrived at in paragraph 69, it is clear that the question whether amnesty is unlawful under international law becomes relevant only in considering the question whether Article IX of the Lomé Agreement can constitute a legal bar to prosecution of the defendants by another State or by an international tribunal. There being no such bar, the remaining question is whether the undertaking contained in Article IX is good ground for holding that the prosecution of the defendants is an abuse of process of the Court.
    
73. 
    It is not difficult to agree with the submissions made by the amici curiae, Professor Orentlicher and Redress that, given the existence of a treaty obligation to prosecute or extradite an offender, the grant of amnesty in respect of such crimes as are specified in Articles 2 to 4 of the Statute of the Court is not only incompatible with, but is in breach of an obligation of a State towards the international community as a whole.⁶¹ Nothing in the submissions made by the Defence and the interveners detracts from that conclusion. The case of Azapo v. President of the Republic of South Africa⁶² is purely one dealt with under the domestic laws of South Africa. It was not a case in which the jurisdiction of another State or of an international court to prosecute the offenders is denied. The decisive issues which have arisen in the case before us did not arise in that case.
    
74. 
    It may well be noted that the President of Sierra Leone did acknowledge that “there are gaps in Sierra Leonean law as it does not encompass such heinous crimes as those against humanity and some of the gross human rights abuses committed”⁶³ and also that the intention of the amnesty granted was to put prosecution of such offences outside the jurisdiction of national courts.
    

6. 
   Abuse of Process
   

75. 
    The question of abuse of process arose because it was submitted on behalf of Kallon that it would be an abuse of process of the Special Court to permit the prosecution of Kallon for alleged crimes pre-dating the Lomé Agreement. This was an alternative position taken by the defendants should the Court hold that the amnesty granted by the Lomé Agreement did not bar prosecution of the defendants and the interveners. It was argued that notwithstanding the fact that there may be jurisdiction to prosecute the defendants and the interveners, the Court should exercise discretion to stay proceedings on the ground that the prosecution itself was in abuse of process of the court.
    
76. 
    The discretion to stay proceedings brought in abuse of the process of the Court in appropriate cases is undoubted. It is a jurisdiction that derives from what was described in the Tadic Jurisdiction Decision as “the ‘incidental’ or ‘inherent’ jurisdiction which derives automatically from the exercise of the judicial function.”⁶⁴ The question in this case is not whether the Court has such discretionary power but whether it is exercisable in this case.
    
77. 
    Counsel on behalf of Kallon argues that it is, and he puts his argument in this manner: It is settled law that any Court has an inherent power to stay criminal proceedings. In Barayagwiza the Appeals Chamber of the International Criminal Tribunal for Rwanda (ICTR) expressly acknowledged that “the abuse of process doctrine may be relied upon in two distinct situations: (1) where delay has made a fair trial of the accused impossible; and (2) where in the circumstances of a particular case, proceeding with the trial of the accused would contravene the court's sense of justice, due to pre-trial impropriety or misconduct.”⁶⁵ In deciding to stay the proceedings against Barayagwiza, who was charged with inter alia genocide and crimes against humanity, the Appeals Chamber held:
    

Thus, according to the Defence, the abuse of process doctrine is applicable to international crimes and is applied to serious crimes in domestic courts. The Defence argues that domestic courts have jurisdiction to try crimes akin to those alleged in this case and if an abuse of process occurred during domestic proceedings for such crimes it would be unthinkable for a court to apply different principles to the case simply on account of the seriousness of the allegations. According to the Defence, the abuse of process doctrine clearly applies to so called ‘international crimes’ for which there is a duty to ‘extradite or prosecute’ in domestic courts.

78. 
    The Prosecution’s response is that prosecution by the Court would not be an abuse of the process of the Court because it could not be an abuse of process to comply with the express provisions of Article 10 of the Statute, particularly, in the circumstances that “(a) Article IX is of no effect in international law; (b) has been repealed as a matter of national law to the extent that it could apply to crimes under Articles 2 – 4 of the Special Court’s Statute and (c) on its correct interpretation does not even apply to crimes under Articles 2 – 4 of the Special Court’s Statute.”⁶⁷
    
79. 
    At the root of the doctrine of abuse of process is fairness. The fairness that is involved is not fairness in the process of adjudication itself but fairness in the use of the machinery of justice. The consideration is not only about unfairness to the party complaining but also whether to permit such use of the machinery of justice will bring the administration of justice into disrepute. In A. G. of Trinidad and Tobago v Phillip⁶⁸ the Privy Council said, rightly:
    

80. 
    Where there is an express provision of a statute that a tribunal shall not take into consideration a fact or an event as ground for declining to exercise its jurisdiction (other than a fact or event that affects the fairness of the trial itself as to constitute a violation of the right to fair hearing), such tribunal will be acting unlawfully if it circumvents the express provision of the statute under the guise of an inherent discretionary power. Article 10 of the Statute which provides that amnesty granted to any person falling within the jurisdiction of the Special Court in respect of the crimes referred to in articles 2 to 4 of the present Statute shall not be a bar to prosecution is an express limitation on an exercise of the discretion of the Court to bar proceedings solely on the strength of such amnesty.
    
81. 
    It must be stated, though no one has so suggested, that there was no bad faith in the inclusion of Article 10 in the Statute. There was the clear statement in the preamble to Resolution 1315 (2000) of the Security Council that “[t]he Special representative of the Secretary-General appended to his signature of the Lomé Agreement a statement that the United Nations holds the understanding that the amnesty provisions of the Agreement shall not apply to international crimes of genocide, crimes against humanity, war crimes and other serious violations of international humanitarian law”. There was also the statement earlier referred to by the President of Sierra Leone that the amnesty was intended to be effective only in regard to the national courts.
    
82. 
    The submission by the Prosecution that there is a “crystallising international norm that a government cannot grant amnesty for serious violations of crimes under international law” is amply supported by materials placed before this Court. The opinion of both amici curiae that it has crystallised may not be entirely correct, but that is no reason why this court in forming its own opinion should ignore the strength of their argument and the weight of materials they place before the Court. It is accepted that such a norm is developing under international law. Counsel for Kallon submitted that there is, as yet, no universal acceptance that amnesties are unlawful under international law, but, as amply pointed out by Professor Orentlicher, there are several treaties requiring prosecution for such crimes. These include the 1948 Convention on the Prevention and Punishment of the Crime of Genocide,⁶⁹ the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,⁷⁰ and the four Geneva conventions.⁷¹ There are also quite a number of resolutions of the UN General Assembly and the Security Council reaffirming a state obligation to prosecute or bring to justice. Redress has appended to its written submissions materials which include relevant conclusions of the Committee against torture, findings of the Human Rights Commission, and relevant judgments of the Inter-American Court.
    
83. 
    Professor Orentlicher cautiously concluded that “to the extent that the amnesty encompasses crimes against humanity, serious war crimes, torture and other gross violations of human rights its validity is highly doubtful”.⁷² She was, however, emphatic in her opinion that the amnesty contravenes the United Nation’s commitment to combating impunity for atrocious international crimes.
    
84. 
    Even if the opinion is held that Sierra Leone may not have breached customary law in granting an amnesty, this court is entitled in the exercise of its discretionary power, to attribute little or no weight to the grant of such amnesty which is contrary to the direction in which customary international law is developing and which is contrary to the obligations in certain treaties and conventions the purpose of which is to protect humanity.
    
85. 
    Upon its establishment the Special Court assumed an independent existence and is not an agency of either of the parties which executed the Agreement establishing the Court. It is described as ‘hybrid’ or of ‘mixed jurisdiction’ because of the nature of the laws it is empowered to apply. Its description as hybrid should not be understood as denoting that it is part of two or more legal systems. Prosecutions are not made in the name of Sierra Leone which plays no part in initiating or terminating prosecution and has no control whatsoever over the Prosecutor who exercises an independent judgement in his prosecutorial decision. The understanding of the United Nations in signing the Lomé Agreement is that the amnesty granted therein will not extend to such crimes covered by Articles 2 to 4 of the Statute of the Court. The understanding of Sierra Leone from the statement made on the inauguration of the Truth Commission was that the amnesty affected only prosecutions before national courts. All these are consistent with the provisions of Article 10 of the Statute and the universal jurisdiction of other states by virtue of the nature of the crime to prosecute the offenders. All these are factors which make the prayer that proceedings be stayed by reason of abuse of process untenable.
    

7. 
   Summary of Conclusions
   

86. 
    The Lomé Agreement is not a treaty or an agreement in the nature of a treaty. The rights and obligations it created are to be regulated by the domestic laws of Sierra Leone. In the result, whether it is binding on the Government of Sierra Leone or not does not affect the liability of the accused to be prosecuted in an international tribunal for international crimes such as those contained in Articles 2 to 4 of the Statute of the Court.
    
87. 
    The validity of Article 10 of the Statute has not been successfully impugned. That Article is an express statutory limitation on the discretion of the Court to decline jurisdiction on the sole ground that an amnesty has been granted to a defendant.
    
88. 
    Whatever effect the amnesty granted in the Lomé Agreement may have on a prosecution for such crimes as are contained in Articles 2 to 4 in the national courts of Sierra Leone, it is ineffective in removing the universal jurisdiction to prosecute persons accused of such crimes that other states have by reason of the nature of the crimes. It is also ineffective in depriving an international court such as the Special Court of jurisdiction.
    
89. 
    The interpretative declaration appended by the Secretary-General’s representative at the signing of the Lomé Agreement is in accordance with international law and is sufficient indication of the limits of the amnesty granted by the Agreement.
    
90. 
    The prosecution of the accused by an independent autonomous court, initiated by an independent prosecutor and not brought in the name of Sierra Leone, is not tainted by whatever undertaking any accused claiming the benefit of the amnesty may have believed he had from the Government of Sierra Leone. Such undertaking could not affect the independent judgment of the Prosecutor who is not responsible to the Sierra Leonean Government.
    

8. 
   Disposition
   

Done at Freetown this 13th Day of March 2004
Justice Winter	Justice King	Justice Ayoola
Presiding
[Seal of the Special Court for Sierra Leone]