15 Mar SCSL Symposium: The Continued Relevance of the Contributions of the Sierra Leone Tribunal to International Criminal Law
[Charles C. Jalloh is a Professor of Law at Florida International University. He previously served as a legal adviser in the Special Court for Sierra Leone and is founder of the Center for International Law and Policy in Africa based in Freetown. His related works include, as editor, The Sierra Leone Special Court and Its Legacy: The Impact for Africa and International Criminal Law (Cambridge, 2015). 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.]
First, I am grateful to Kevin Jon Heller and Jessica Dorsey for hosting this symposium on my monograph, The Legal Legacy of the Special Court for Sierra Leone (Cambridge, July 2020). I appreciate this timely online discussion on this premium cyberspace as part of this blog’s impressive book symposia. Undoubtedly, for a dynamic field where so much is happening almost on a daily basis, more people learn about new books in international law on Opinio Juris. Their excellent work is facilitating scholarly engagement in our apparently no longer as “invisible college of international lawyers.” I am much indebted.
Second, I also appreciate the editors of the FIU Law Review who in a way began this journey by selecting this new book for their annual “micro-symposium” series. In addition to planning the publication of a “micro-issue” of the law review in Spring 2021, with prominent experts commenting on the book, Sofia Perla, Christina Ramsey and their colleagues invited me to do a talk for FIU Law students in September 2020. It was a delight to engage with these bright students, whose probing questions gave me much fodder for thought. Ashira Vantrees, my excellent research assistant, helped with the preparation of the various pieces for the online format.
Lastly, many thanks to the stellar lineup of scholars and practitioners who so kindly accepted the law review’s invitation to read and engage my work. Without their generosity of time and critical engagement, both this online symposium on the legacy of the Special Court for Sierra Leone (SCSL) and the forthcoming law review special issue on the book, would not have been possible. I am indebted to them all.
In the remainder of this post, allow me to briefly introduce the main chapters and arguments in the book which will be debated in the series of posts that will follow over the next week or so. In a final post, at the end of the present symposium, I will return to respond to the main comments and criticisms of the book.
It must be common knowledge by now that it was the fateful decision of the UN Security Council to establish the International Criminal Tribunal for the former Yugoslavia (ICTY) in 1993 and the International Criminal Tribunal for Rwanda (ICTR) in 1994 to prosecute atrocity crimes in the Balkans and East Africa that rescued the idea of international criminal law (ICL). The SCSL, whose work began in 2002 and concluded in 2013, followed in the footsteps of the ICTY and the ICTR. The SCSL benefited from its predecessors but also introduced a new “hybrid” model of the international criminal tribunal. A model that, for various reasons including local ownership, has proved to be of relevance for States as a means of providing credible justice for international crimes, despite the initial impression that the creation of a permanent International Criminal Court (ICC) would render them superfluous.
The significant impact of the ICTY and the ICTR to the development of ICL is well known. The same is not as true of the SCSL. My goal in writing this book was to shine a spotlight on this innovative institution, as the first such court created by the UN and one of its member states, by evaluating its main contributions to the evolution of ICL. The monograph, which began life as a doctoral thesis but was subsequently expanded with new chapters, examined what I dub the SCSL’s legal legacy. The idea of “legacy” has been part of ICL discourse since at least the seminal Nuremberg Trials. But there is no universally accepted meaning of the term. In simple terms, as I used it, it was a shorthand for the body of legal rules that the SCSL may have left behind for current and future courts tasked with prosecuting the same or similar international crimes.
Of course, under Article 38(1) of the Statute of the International Court of Justice, judicial decisions along with the teachings of scholars are only subsidiary means for determining rules of international law. But this starting point understates the significant role judicial decisions have historically played in ICL’s development. A keen observer might also note that SCSL rulings are not binding on other courts. That, of course, would be true. Nonetheless, I argue that to the extent that the SCSL developed persuasive legal reasoning on critical concerns of broader relevance in ICL, it helps to facilitate the work of other tribunals and in that way contributed to solidifying the still emerging corpus of ICL norms.
In the book, though I noted it was innovative in its design as well, I focused on the main SCSL judicial rulings on several fascinating legal questions for the ICL field as a whole. These concerned the framing of the personal jurisdiction of such courts to demarcate the types of cases suitable for prosecution at the international instead of the national level; the issue of the novel forced marriage as a crime against humanity in the effort to redress the gender imbalanced impact of atrocity crimes; how to flesh out the elements of the newly minted crime of child recruitment as a war crime under international law; the question whether a sitting head of a third state could be prosecuted by a tribunal partly created by a neighboring state in a collaboration with the UN; the status of blanket amnesties for international crimes under international law; and finally, the relationship between truth commissions and criminal tribunals. Overall, my principal claim is that by virtue of its caselaw which is increasingly being used by both national and international courts, from Kampala to The Hague and beyond, the SCSL has bequeathed a useful juridical legacy to ICL.
Structurally, the book is divided into 11 chapters. Chapter 1 discussed the background and purpose of the book, the aims of the research and why it is significant as well as the methodology and contribution to the legal literature. This chapter situated the SCSL against the post-Cold War international criminal law landscape. As I explained in greater detail in the book, in contrast to the Chapter VII tribunals created by the UN to prosecute crimes in the former Yugoslavia in 1993 and Rwanda in 1994, that landscape was not a barren one by the time the SCSL was established in 2002. This meant that there was already an extensive body of legal norms that the SCSL could build upon to make its own unique contributions. Yet, in doing so, the SCSL also considered several thorny legal issues that were in some respects specific to Sierra Leone, but perhaps even more importantly, foreshadowed similar concerns for other conflict affected States in Africa and elsewhere.
In Chapter 2 of the book, which gave a brief overview of Sierra Leone’s horrific blood diamonds driven conflict, I provided sufficient context for understanding the later SCSL mandate. Based on the findings of the SCSL and the Sierra Leone Truth and Reconciliation Commission (TRC), and the leading works of Sierra Leonean historians, I trace the origins of the conflict to internal and external factors which led to a border incursion by the Revolutionary United Front (RUF) rebels from neighboring Liberia in March 1991. I show how widespread killings, rape, and acts of sexual violence, particularly against women and young girls, mass amputations, use of child soldiers, acts of terrorism against civilians, including the burning of entire towns and villages, and the attacks on UN peacekeepers, became some of the tragic signatures associated with the Sierra Leone conflict.
In Chapter 3, I discussed the circumstances leading up to the establishment of the SCSL. Basically, the Sierra Leonean government push to prosecute was a result of the breakdown of a regionally sanctioned peace agreement between the authorities and the RUF in Togo in July 1999. In the lead up to the peace negotiations, what I call a “forgive and forget policy” had been adopted by President Ahmad Tejan Kabbah’s government, which deliberately sought to trade non-prosecution and conferral of a blanket amnesty to the rebels in exchange for peace. But the generous Lomé accord emboldened the RUF, partly because of the “bitter pill” that it contained in Article IX (Pardon and Amnesty) and the lack of good faith on the part of the rebels, eventually leading the government to reverse course and instead request UN assistance to establish a credible special court to prosecute its former enemies and their collaborators. This part of the book highlights the peace-justice dilemmas that leaders in conflict-ridden States sometimes face, suggesting that some policy discretion may sometimes be needed so that carefully calibrated amnesties may be used to end atrocities in otherwise unwinnable civil wars.
Having set the war and the creation of the tribunal in context, Chapter 4 of the book turned to the SCSL’s jurisdiction, organization, and trials. I critically evaluated the competence of the SCSL over persons, the mix of international and Sierra Leonean crimes that it could prosecute, the geographic space over which it could exercise its authority, as well as its limited temporal jurisdiction. I show that, despite the high expectations of Sierra Leoneans and their government, the SCSL was intended to carry out only a small set of trials over a short three-year period. This decision was driven by cost concerns, especially in the halls of the UN. The funding fatigue affected the design of all aspects of the institution, including its personal jurisdiction and unstable donations-based funding system which the UN Secretary-General protested to no avail. In the end, although it lasted for 11 years and successfully concluded only 9 cases (i.e. the AFRC joinder of 3 cases, CDF (2 cases) and RUF (3) plus that of former Liberian president Charles Taylor), its task from the beginning was to deliver symbolic rather than actual justice for a handful of persons most responsible for the war crimes, crimes against humanity and other serious violations of international humanitarian law carried out during the second half of the “dirty war in West Africa.”
In Chapter 5, I evaluated the SCSL’s key contributions on the personal jurisdiction over persons “bearing greatest responsibility”. This way of framing personal jurisdiction was first introduced to international law by Article 1 of the SCSL Statute. Since then, it appears to have become the darling phrase for the notion that the reach of modern international criminal tribunals must be carefully circumscribed and that the bulk of prosecutions ought to take place at the national level. This phrase is also embraced by prosecutors and judges of the ICC, whose use of it in contrast to their SCSL counterparts, reflects policy constraints rather than a formal legal requirement of the ICC Statute.
A key argument of this chapter is that the move to greatest responsibility jurisdiction represented a subtle shift towards lowered expectations of the number of atrocity prosecutions that can be expected from international courts. In any case, despite the initial disagreement amongst the SCSL judges regarding the best way to construe “greatest responsibility personal jurisdiction,” that is to say whether as a guideline for the prosecution or as a jurisdictional threshold that they must establish beyond a reasonable doubt, the rulings of the SCSL in the AFRC and the CDF cases on this issue advanced a useful understanding of this form of narrow personal jurisdiction in ICL. The SCSL, despite repeated several defense challenges, correctly concluded that “greatest responsibility” was merely prosecutorial guidance. Moreover, the phrase was found sufficiently broad to encompass both what I call “killer-perpetrators” as well as those in the “political-military leaders” category. The chapter demonstrates the influence of the SCSL rulings on the work of other courts, with similar limited mandates, especially the Cambodia Tribunal for instance in the Duch Case (Duch Appeals Judgment at paras. 62-74).
The treatment of gendered crimes continues to be a challenge for international criminal courts, which have been sometimes criticized for their general indifference to the plight of women and girls who so often bear the devastating brunt of sexual violence in armed conflicts. In Chapter 6, I discussed the SCSL’s landmark contribution to the law of crimes against humanity, focusing in particular, on the novel crime of forced marriage as part of the residual category of “other inhumane acts.” The efforts to investigate, charge and prosecute such bad conduct associated with the Sierra Leone conflict were undoubtedly laudable. The prosecutors also charged the crimes of rape and sexual slavery. They went even further, deliberately seeking to repair a blind spot in the law by capturing conduct that was so egregious that it warranted the introduction of a new crime against humanity into ICL lexicon. The new crime, proposed by prosecutors through amended indictments eventually endorsed by the SCSL judges in the AFRC and RUF Cases, symbolically paid tribute to the gendered burden of the Sierra Leone war but took place against the backdrop of the countervailing concern to ensure that the fair trial rights of suspects are respected. The continued impact of the SCSL rulings on forced marriage is illustrated by the ICC Trial Chamber’s recognition of forced marriage as a crime under Article 7(1)(k) of the Rome Statute in its February 2021 Ongwen Trial Judgment.
In Chapter 7, I discussed the war crime prohibiting the recruitment and use of children under the age of fifteen for the purposes of using them to participate actively in hostilities in Article 4(c) of the SCSL Statute. This crime, similar to one first included in Article 8(2)(e)(vii) and b(xxvi) of the ICC Statute, gained in importance for two reasons. First, upon invocation by the SCSL prosecutors against several accused persons in the trials, it became the first such prosecutions in international law. Second, and as a consequence, it meant the SCSL judges became the first to flesh out the elements of this crime to a concrete set of cases. This enabled them to influence the subsequent development of the ICC case law, as we saw in the seminal Thomas Lubanga case which also relied on child recruitment charges as the basis for the indictment (see Amann for commentary). I argue that, though not perfect, the SCSL’s celebrated ruling that child recruitment constituted a crime under customary international law by November 1996 which has been widely embraced by courts and commentators constitutes a useful contribution to international law. It has also helped clear the path for the use of this post 1998 crime in the ICC.
Today, the issue of immunities from prosecution for sitting heads of state remains sensitive. Immunities, because of their nature, raise critical questions for international law and the ideal of equality of all persons before ICL. The problem is compounded since removals of immunities are often read as pushback to age old notions of sovereignty, which ordinarily limit the possibility of assertion of criminal jurisdiction by the courts of one state over the officials of another state, largely for the sake of maintaining stable international relations. I analyze the SCSL’s treatment of head of state immunity in Chapter 8 of the book. The SCSL’s trial of former Liberian president Charles Taylor, who was indicted by the SCSL while an incumbent, grounds the discussion of the appeals chamber’s conclusion that he was not entitled to any immunity from prosecution before the SCSL in light of the ICJ’s ruling on customary international law immunities in the Arrest Warrant Case.
Essentially, the SCSL Appeals Chamber held that Taylor’s personal immunity was irrelevant to proceedings carried out by an international penal court established with the support of the international community. I argue that, though sometimes criticized by some commentators, the core added value of the Taylor immunity decision seems to have been largely overlooked. I emphasize the SCSL’s finding concerning the rationale for immunity, which is relevant for the maintenance of serene relations between co-equal sovereigns at the horizontal level, but was adjudged of little assistance in vertical relationships between international criminal courts and States.
The fact that Taylor’s immunity was deemed unavailable, in the context of an international criminal court established partly by the UN and partly by Sierra Leone, differs from the horizontal concern in that international community involvement offers the vital safeguards to constrain problematic unilateral actions by the courts of one state (Sierra Leone) against the leader of another state (Liberia). If I am right, an additional point of distinction may also be the consent of Liberia as a UN member state to measures taken by the UN Security Council for the maintenance of international peace and security in West Africa and its later request for Taylor’s arrest and transfer to the SCSL for trial. The ICC pre-trial and trial chambers, which has faced some challenges concerning its rulings on requests for States Parties to arrest high level suspects holding immunity, seems to have benefited from the SCSL Taylor precedent in several cases involving Malawi, Chad, and in May 2019, by the ICC Appeals Chamber Al Bashir decision. [Note: the present author was involved as one of two external counsel for the AU Commission as intervener in the Al Bashir case, the judgment on which has been met with both scholarly support e.g. Kress, Sadat, Haque, and criticism e.g. Akande, Heller, Kiyani].
In Chapter 9, I turned to another celebrated SCSL ruling. This concerned Sierra Leone’s initial conferral of a blanket amnesty on all the combatants that perpetrated international crimes during the war, and the ensuing legal debate whether the subsequent unilateral withdrawal of that amnesty, barred the prosecutions by the SCSL. In the main, I argued that the SCSL judges reached the right result on the amnesty issue but that their legal reasoning was perhaps too convoluted in answering the question presented. Even though the SCSL conceded that the use of conditional amnesties as a way of settling bitter conflicts is not per se prohibited, the amnesty ruling also suggested that blanket amnesties may be different and that a norm against amnesties for serious crimes under international law may be crystallizing. In any case, the government’s conferral of amnesty for all crimes is not necessarily binding on other sovereigns. Other States would continue to retain jurisdiction to investigate and prosecute the offenders, for international crimes, should they wish to do so. Similarly, such amnesties cannot bar subsequent criminal prosecutions for international crimes before a separate international tribunal such as the SCSL. Though I was perhaps rather critical of the decisions, the SCSL rulings on amnesty now constitute part of its widely cited caselaw on the question of amnesties by national, regional and international courts including in recent ICC decisions concerning Libya.
Turning to the potentially tenuous interaction between, on the one hand, truth and reconciliation commissions, and on the other hand special criminal courts, those being traditionally seen as alternatives to each other, I argue in Chapter 10 of the book that the SCSL caselaw adds considerably to our understanding of the challenges that arise in situations where both of these types of mechanisms are deployed simultaneously. Indeed, I discussed the SCSL trials against the backdrop of its concurrent operation, for a period of 18 months, with the Sierra Leone TRC. That case study suggests a range of practical issues that will arise. I note that, to avoid future problems in other contexts, it is better to clarify upfront how such institutions with inherently tense mandates must relate to each other whenever used simultaneously. This clarity should ideally come from the founders, during their establishment of the two separate mechanisms, but failing that, through the early conclusion of an agreed framework between the two institutions. The lesson of Sierra Leone has been relevant for accountability discussions in the Gambia, and South Sudan, and will be useful for Kosovo and the Central African Republic.
Finally, in Chapter 11, I summarized the main conclusions derived from the analysis in the book. On the whole, while conceding that its jurisprudence was sometimes not as well reasoned as it could have been given the tendency to simplify complex questions, on balance, the SCSL’s judicial rulings on often complex subjects of international law made some important judicial contributions to the development of the nascent field of ICL. Already, the impact of the tribunal’s jurisprudence has resonated well beyond the confines of Sierra Leone and Africa. Indeed, the SCSL caselaw is already proving helpful for the work of other national and international courts. In a way, by its valiant efforts to resolve some thorny issues it had before it, the SCSL also gave back to the international community through its key contributions on greatest responsibility personal jurisdiction, forced marriage as a crime against humanity, the war crime of child recruitment, head of state immunity, amnesties and the relationship between special courts and truth commissions. Based on the evidence, so far, the SCSL legacy on these topics will continue to be of relevance to the international community.