Special court for sierra leone

Ibid.

19 Ibid. emphasis added.

20 Agreement between the United Nations and the Government of Sierra Leone on the Establishment of a Special Court for Sierra Leone, 16 January 2002 (“Agreement”).

21 Article 5 of the Agreement.

22 See M. N. Shaw, International Law (5th ed., 2003) p. 1040.

23 See para. 7 above.

24 See Kallon Preliminary Motion.

25 Article IX(3) Lomé Agreement.

26 Lomé Peace Agreement (Ratification) Act, 15 July 1999.

27 Adopted 23 May 1969, entered into force 27 January 1980, UNTS vol. 1155, 331.

28 The report referred to is the Report of the Secretary-General on the Establishment of a Special Court for Sierra Leone, UN DOC S/2000/915, 4 October 2000.

29 Orentlicher amicus brief, p. 3.

30 SC Res 1260(1999), 20 August 1999.

31 His Excellency the President’s Address on the Occasion of the State Opening of the Fourth Session of the First Parliament of the Second Republic of Sierra Leone, 16 June 2000, http://www.sierra-leone.org/kabbah061600.html.

32 A Statement by His Excellency the President Alhaji Dr. Ahmad Tejan Kabbah made before the Truth and Reconciliation Commission on Tuesday 5 August 2003, para. 35, Sierra Leone Web, http://www.sierra-leone.org/documents-kabbah.html.

33 See Fofana Submissions, paras 11-28.

34 Gbao Submissions, para. 14.

35 P.H. Kooijmans, “The Security Council and Non-State Entities as Parties to Conflicts”, in K. Wellens (ed.), International Law: Theory and Practice, Essays in Honour of Eric Suy (Kluwer Law International, 1998), pp. 333-346.

36 SC Res 1127(1997), 28 August 1997.

37 Kooijmans (n. 33 above), p. 338.

38 See e.g. Convention Relative to the Treatment of Prisoners of War, Geneva, 12 August 1949, 75 UNTS 135.

39 L. Moir, The Law of Internal Armed Conflict, (Cambridge 2002), pp. 63-64. The author at p. 65 was of the view that the application of Article 3 does not constitute a recognition by the government that the insurgents have any authority, and certainly does not amount to a recognition of belligerency. He noted that “scholars have since argued that, despite the obvious intention of the framers of the Conventions, Article 3 must confer a measure of international legal personality upon the insurgents, at least they become the holders of rights and obligations under the Article.”

40 Shaw, International Law, p.176 (note Error: Reference source not found above).

41 Kallon Preliminary Motion, paras 15-26.

42 Prosecutor v Anto Furundzija, Case No. IT-95-17/1-T, Judgement, 10 December 1998, (“Furundzija Trial Judgement”), para. 155.

43 Ibid.

44 Article IX(3).

45Prosecutor v Dusko Tadić, Case No. IT-94-1, Decision on the Defence Motion on Jurisdiction, 10 August 1995. (“Tadic Decision on Jurisdiction”).

46 Kallon Preliminary Motion, paras 11-13.

47 Gbao Submissions, para 9.

48 Oral submissions.

49 Black’s Law Dictionary (5^th Ed., 1983), p. 76.

50 Ibid.

51 Under the universality principle, each and every state has jurisdiction to try particular offences. See Shaw, International Law, p. 592 (note Error: Reference source not found above).

52 International Law in the Twentieth Century: Essay by Quincy Wright, p. 623, 641.

53 See Kittichaisare, International Criminal Law, (Oxford, 2001), p.3.

54 “The fact that a particular activity may be seen as an international crime does not itself establish universal jurisdiction and state practice does not appear to have moved beyond war crime, crimes against peace and crimes against humanity in terms of permitting the exercise of such jurisdiction.” See Shaw, International Law, p.597 (note Error: Reference source not found above).

55 See supra note Error: Reference source not found.

56 Attorney-General of the Government of Israel v. Eichman, (1961) 36 ILR 5, 12.

57 Case concerning Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium) (2002) ICJ Reports, 14 February 2002, para. 61.

58 Furundzija Trial Judgement, para 14.

59 A. Cassese, International Criminal Law (Oxford, 2003), 315.

60See Barcelona Traction, Light and Power Co Case (Belgium v Spain) [1970] ICJ Reports 3; See also Moir, The Law of Internal Armed Conflict, 57, “It has been suggested that three groups of [peremptory] norms exist: those protecting the foundations of law, peace and humanity; those rules of co-operation protecting fundamental common interests; and those protecting humanity to the extent of human dignity, personal and racial equality, life and personal freedom.” See also I. Brownlie, Principles of International Law, (6^th Ed., 2003) where prohibition of crimes against humanity is included as an example of a ius cogens norm, p. 489.

61 Indeed in 1999, the UN Commission on Human Rights made what can be regarded as a statement of universal jurisdiction in the following terms: “[I]n any armed conflict, including an armed conflict not of an international character, the taking of hostages, wilful killing and torture or inhuman treatment of persons taking no active part in hostilities constitutes a grave breach of international humanitarian law, and that all countries are under obligation to search for persons alleged to have committed or to have ordered to be committed, such grave breaches and bring such persons regardless of their nationality, before their own courts.” See Situation of Human Rights in Sierra Leone, U.N. Commission on Human Rights, 54^th Session, U.N. Doc. E/CN. 4/RES/1999/1 (1999). See also, Babafemi Akinrinade, ‘International Humanitarian Law and the Conflict in Sierra Leone’, 15 Notre Dame Journal of Law, Ethics and Public Policy, 391-454 (Fall 2001) at pp. 442-443.

62 Azapo v. President of the Republic of South Africa (4) SA 653 (1996).

63 See Letter dated 9 August 2000, (note Error: Reference source not found above).

64 Tadić Jurisdiction Decision, para 18.

65 Jean-Bosco Barayagwiza v The Prosecutor, Case No. ICTR-97-19-AR72, Decision, 3 November 1999, para 77.

66 Ibid, para 112.

67 Prosecution Response to the Kallon Preliminary Motion, para. 15, emphasis in the original.

68 G. of Trinidad and Tobago v Phillip 1 A.C.396 at 417 (1995).

69 Convention on the Prevention and Punishment of the Crime of Genocide, adopted by UN General Assembly on 9 December 1948, 78 UNTS 277.

70 Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, 4 February 1985, (1984) ILM 1027.

71 Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field; Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea; Convention Relative to the Treatment of Prisoners of War; Convention Relative to the Protection of Civilians in Time of War. Geneva, 12 August 1949.

72 Orentlicher amicus brief, p. 24.