24 Mar SCSL Symposium: A Brief Response to the Contributions on the SCSL’s Legal Legacy
[Charles C. Jalloh is a Professor of Law at Florida International University, USA. Jalloh 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, Sierra Leone. His related works include, as editor, The Sierra Leone Special Court and Its Legacy: The Impact for Africa and International Criminal Law (Cambridge, 2015)].
It has been wonderful and humbling to read these thirteen excellent reviews of my monograph, The Legal Legacy of the Special Court for Sierra Leone (Cambridge, 2020). I wish to take this opportunity to heartily thank these A-list of scholars, practitioners, and scholar-practitioners, who took time out of their busy schedules to read and comment on my work.
The reviews, as posted during this online symposium over the past couple of weeks, moved from the (more) general to the (more) specific. Authors in the first group commented broadly on the book, and in several instances, also highlighted key issues of particular relevance (Prosecutor Stephen J. Rapp here and here, Mr. Simon Meisenberg, Mr. Alpha Sesay, Professor Mark A. Drumbl and Dr. Michael Kanu).
In the second group, the authors offered some broad observations about the book and then selected specific chapters to focus on, often commenting in passing, on other issues they deemed particularly worthy of highlighting (Professor Margaret M. deGuzman and Professor Stuart Ford, greatest responsibility personal jurisdiction – (Chapter 5); Ms. Tamara Cummings-John and Professor Valerie Oosterveld, forced marriage as a crime against humanity – Chapter 6; Professor Leila Sadat here and here and Professor William A. Schabas, amnesties, and immunities – (Chapters 8 and 9); Professor Linda E. Carter and Professor Joseph Rikhof, on the relationship between special courts and truth and reconciliation commissions – (Chapter 10)).
From both sets of commentators, whether addressing the Special Court for Sierra Leone (SCSL) legacy from the big picture perspective or through the prism of specific chapters, or both, I received a number of generous compliments about my ideas and the book. I highly appreciated all of them. Even more importantly, I was particularly delighted that virtually all of the thirteen reviewers seemed to agree with my overarching argument in the book that the SCSL has indeed left a useful jurisprudential legacy for international criminal law. It is not often the case that two international lawyers would agree, let alone thirteen, especially on the new and largely uncharted issues which I suggested constitutes the core of its “legal legacy” for international criminal law and practice.
Equally significant, each reviewer also seemed to generally agree that, while the SCSL has surely bequeathed other useful jurisprudence on a range of other important legal matters, for example on the powers of the UN Security Council to create ad hoc courts or the fair trial rights of suspects and accused persons, the most far reaching SCSL caselaw concerned the six topics that I selected for examination in the book, namely, the SCSL’s interpretation of its enigmatic personal jurisdiction over persons bearing greatest responsibility under Article 1(1) of its Statute, the crime of forced marriage as part of the residual category of “other inhumane acts” of crime against humanity pursuant to Article 2(i), child recruitment as “other serious violations of international humanitarian law” prohibited by Article 4(c) of the Statute, the irrelevance of official position of an accused person as a Head of State or government under Article 6(2), the limitation that a domestic amnesty granted to a person accused of certain international crimes shall not operate as a bar to a subsequent prosecution under Article 10 of the SCSL Statute, and last but not least, the relationship between special courts and truth and reconciliation commissions.
Each of the chapters in the book received some careful commentary. I was delighted to read all the highly stimulating and thought-provoking comments. For many important reasons, three of which may be particularly worth highlighting. First, the commentators are a diverse group. Reflecting a broad range of impressive professional backgrounds and experiences, from legal practice in the prosecution and defense at the domestic and international levels to current and former diplomats, practicing attorneys, and of course, renowned academics. Quite appropriately, given the “hybrid” nature of the SCSL, the commentators reflect a good mix of what we used to call in Freetown “nationals” and “internationals.” It was a tribunal requested by Sierra Leone, but by its joint creation via a treaty between the United Nations and the Government of Sierra Leone as well as its mixed subject matter jurisdiction over international and domestic crimes, it was also a unique creature reflecting a sort of hybrid local-global ownership. This, in a symbolic way, points to and reinforces the staying power of the hybrid justice model which draws strength in being at once national as well as international, even after the completion of its work.
Second, through their individual reviews, these distinguished commentators not only engaged with my modest ideas on the legacy of the SCSL. They each also offered fresh insights on the tribunal’s contributions to the development of international criminal law. Collectively, without necessarily framing it in the same terms, they expanded on what I have described as the “legal legacy” of the SCSL, showing the richness of the Court’s contributions through its jurisprudence and as one of the better and more successful models of the hybrid court. A model that, as one of the commentators reminded us, continues to remain highly relevant today. It is a potentially credible way to satisfy the victims’ cries for justice for atrocity crimes, from Iraq to Syria, Myanmar, South Sudan and The Gambia. Even in a world with a permanent International Criminal Court (ICC).
Third, for someone who has been thinking about the legacy of the SCSL for many years, it was remarkable for me that this group of insightful commentators extended in new directions my thinking on the subject. Along the way, perhaps without even realizing it, some of them planted seeds for further inquiry in my still-evolving understanding of the complex and dynamic concept of legacy in international criminal law generally, and the place of the SCSL and African States in its development in particular. This includes the African State plans to expand the toolkit of accountability from the national, international and hybrid to also regionalize international criminal law enforcement.
As regards the substance, of the reviews, there did not seem to be much criticism of the main arguments I advanced in the book. Interestingly, one or two of the authors seemed to imply I was not laudatory enough of the jurisprudential contributions of the SCSL. A couple of others seemed to suggest the opposite: that, at least on certain topics such as the tribunal’s rulings on amnesty and immunity or greatest responsibility, I might have been too critical. That said, the overwhelming majority of the commentators seemed to have appreciated the book as comprehensive, thorough, and balanced, setting out as objectively as possible the positive and less positive aspects of the judicial reasoning in some of the decisions. In all cases, the authors seemed to endorse the view that the SCSL jurisprudence has been influential whether in other ad hoc courts with a similar mandate or the permanent ICC.
While I am deeply appreciative of all the accolades received, from many of the authors, some of the reviewers have also raised a number of critical points. I am tempted to address them individually here and to be comprehensive in my response. However, space constraints make that simply impossible in this blog format. Nonetheless, in seeking to further engage the thoughtful reviews and hopefully advance the academic debate, my detailed and more comprehensive response will be published along with these reviews of the monograph in the next issue of the FIU Law Review scheduled for Spring 2021.
At this stage, it remains for me to once again thank all the distinguished commentators who honored me by so thoughtfully engaging with my book on the legacy of the SCSL. I learned a lot from each of them. I can only hope that their substantial contributions to the literature through these thoughtful reviews will serve to pique even more interest in further examination of the legacy of the SCSL and its contributions, and challenges, as part of deepening global scholarly understanding of the international community’s long and ongoing struggle against impunity for atrocity crimes under international law.