SCSL Symposium: The Important Contributions of the Special Court for Sierra Leone on Amnesties and Immunities–Reinforcing Foundational Principles of International Criminal Law, Part I

[Leila Nadya Sadat is the James Carr Professor of International Criminal Law and the Director of the Whitney R. Harris World Law Institute at the Washington University School of Law. sadat@wustl.edu. This essay was initially prepared at the request of FIU Law Review for its micro-symposium on The Legal Legacy of the Special Court for Sierra Leone by Charles C. Jalloh (Cambridge, 2020). An edited and footnoted version is forthcoming in Volume 15.1 of the law review in spring 2021.]

The book that is the centerpiece of this micro-symposium, The Legal Legacy of the Special court for Sierra Leone, is an important contribution to international law and practice. Authored by Charles Jalloh, himself a distinguished practitioner of international criminal law, the book is essential reading for anyone who wishes to understand the legal ramifications of the Special Court and its work. It is comprehensive, without being overwhelming, and analyzes many of the most important elements of the Court’s legal work. It is a perfect companion to his equally excellent edited book on the subject, The Sierra Leone Special Court and its Legacy.

The Court’s establishment was a response to atrocities committed during the Sierra Leon Civil War, which began in 1991, and raged for over a decade. The conflict was notorious “for its brutality and the commission of some of the worst atrocities against civilians ever witnessed in a contemporary conflict.” As war was raging in Sierra Leone, other conflicts were in progress elsewhere, including the war in the former Yugoslavia, and the Rwandan genocide. In 1993 the international community established an International Criminal Tribunal for the former Yugoslavia (ICTY), and a second sister tribunal for Rwanda (ICTR), to try those responsible for crimes against humanity, genocide and other serious violations of international humanitarian law committed in those conflicts.

The Yugoslavia and Rwanda tribunals were impactful institutions that reignited a global thirst for justice in the face of atrocity crimes. Their creation gave wings to the dream of those who had long advocated for a permanent international criminal court, a Statute for which was ultimately adopted in 1998 and entered into force in 2002. When the conflict in Sierra Leone ended in 2001, therefore, the expectation that criminal trials would be held for the perpetrators of atrocity crimes was high. Moreover, as Professor Jalloh notes, the government of Sierra Leone and the United Nations were supportive of the idea that there should be a tribunal to try the perpetrators of the war. Yet the ICTY and the ICTR had experienced some difficulties in their early years, which, combined with their high cost caused “tribunal fatigue” to set in with at least some members of the United Nations Security Council, who were therefore opposed to creating another Chapter VII ad hoc tribunal for Sierra Leone. A creative workaround was found: Although the Security Council adopted  Resolution 1315 regarding the court’s establishment, rather than attach a Statute directly to the Resolution, as it had done with the ICTY and the ICTR, it empowered the Secretary-General to negotiate with the Kabbah government to establish the court.

For this reason, the Special Court for Sierra Leone (SCSL), as the Court came to be known, was therefore neither a Chapter VII-backed tribunal (along the lines of the ICTY or the ICTR) nor an entirely domestic court. Instead, it was established sui generis, via a bilateral agreement between the United Nations and Sierra Leone. The agreement establishing the Court was signed on January 16, 2002, and entered into force on April 12, 2002, with the Statute of the Court annexed thereto. The manner of the Court’s creation became important in the Taylor case when the question of Charles Taylor’s possible immunity as a Head of State was raised as a bar to his prosecution.

The SCSL was the first modern international criminal court located in the country where the crimes being prosecuted had occurred. (The Extraordinary Chambers in the Courts of Cambodia swiftly followed suit)(for a discussion from the “founders” of these tribunals see here). Although this presented security concerns, it had many benefits, particularly in terms of impacting public opinion in the host country. If location in the host country was a positive, one big negative was that the Court was dependent on voluntary contributions as opposed to receiving funding from the regular U.N. budget. Many Court personnel have described how difficult funding concerns made their jobs and detracted from their ability to fully focus on their mission. The book also notes that the justice the SCSL administered was neither fully complete, nor in and of itself sufficient to fully remedy the harm that the atrocities committed during the Sierra Leonean civil war inflicted on a small West African nation. The SCSL tried only a handful of individuals, both for financial reasons and due to the limitation in Article 1(1) of the Statute that the Court should prosecute those bearing the “greatest responsibility.” The parallel work of the Truth Commission was important as well; indeed, as Professor Jalloh notes, the “Sierra Leone transitional justice experiment exposed important legal and policy issues” about how a criminal court and a truth commission can coexist in a complementary manner.

Several chapters address specific important legal questions that arose during the proceedings. A full treatment of these issues is beyond the scope of this short contribution. Instead I have focused attention upon two key elements, about which I have written elsewhere, and which remain both important and contested areas of modern international criminal law: Head of State immunity (Chapter 8) and amnesties (Chapter 9). A brief comment on these chapters follows.

Amnesties: As Professor Jalloh notes, in the years prior to the SCSL’s establishment, President Kabbah endeavored to put an end to the conflict by negotiating with the rebels. In 1999, he signed the “Lomé Peace Agreement” with Corporal Foday Sankoh, the leader of Revolutionary United Front. The Secretary-General of the United Nations and outside governments and organizations also signed as “moral guarantors” of the agreement. Article IX of the Lomé Agreement, entitled “Pardon and Amnesty” created significant difficulties for the SCSL, because it guaranteed “an absolute and free pardon” to RUF leader Sankoh, and required “the government of Sierra Leone [to] 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.” Following signature of the Lomé Peace Agreement, it was announced that the Special Representative of the UN Secretary-General, Francis Okello, had entered a disclaimer that the United Nations would not recognize the validity of the amnesty as regards the “international crimes of genocide, crimes against humanity, war crimes and other serious violations of international humanitarian law.”

The Lomé Agreement did not stop the RUF from killing and mutilating civilians. They maintain their control over diamond operations which provided them with funds. At one point, they abducted more than 500 UN peacekeepers, seized their weapons, arms, and uniforms, and murdered several (for more information on RUF conduct see here). President Kabbah, who had previously supported the amnesty because he felt it would bring the war to an end, now vigorously advocated for trials. The result was the establishment of the SCSL, which included a provision specifically eliminating amnesties for international crimes in Article 10 of its Statute.

Once before the SCSL, the defendants argued that the Court could not “try them for acts committed before July 1999 given the unconditional amnesty/pardon that the Sierra Leone government had conferred on them.” The Sierra Leone Special Court and its Legacy. The Appeals Chamber disagreed. The Chamber found that the amnesty granted in the Lomé Agreement was tantamount to a domestic amnesty as the Lomé Agreement did not have an international character. Therefore, it was inapplicable before the Special Court. Likewise, the Appeals Chamber found that whatever affect the amnesty may have had in the courts of Sierra Leone, it could have no effect in protecting the defendants from universal jurisdiction prosecutions brought by other States. In a particularly notable passage, the Appeals Chamber observed:

Where jurisdiction is universal, 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.

As Professor Jalloh notes, the Appeals Chamber did not categorically find that amnesties for war crimes and crimes against humanity granted by states were unlawful under international law,  although it appeared to lean in that direction.  This is suggested by the fact, as he observes, the Chamber could have decided the case on narrow grounds by simply limiting its decision to the effect of the Lomé Agreement before the SCSL. Instead, the Appeals Chamber observed that the crimes had the character of peremptory norms of international law, which generated obligations erga omnes to all states, and that there is a “crystallizing international norm that a government cannot grant amnesty for serious violations of crimes under international law.”The Sierra Leone Special Court and its Legacy.

Of particular interest is Professor Jalloh’s discussion of scholars’ reaction to the Appeals Chamber’s decision. As he observes, most scholars agree with the Appeal Chamber’s holding that the Lomé Agreement did not provide the accused with a defense to proceedings before the SCSL. Some, such as Antonio Cassese, found the result correct, but the reasoning legally flawed. Others, including this writer, have opined that both the result and the reasoning were important and influential contributions to international law. A third group of scholars, including William Schabas, have been deeply critical of the decision, suggesting that it used “extravagant language” and did not properly address the complexities of the issues involved. In the view of this writer, the Appeals Chamber’s amnesty decision, and the reasoning undergirding it, have stood the test of time. I explain why below after taking up the second critical issue decided by the Chamber on the question of Head of State immunity.