Cover

The Sierra Leone Special Court and Its Legacy

Advance Praise

Title

Copyright

Dedication

Contents

Editor’s Biography

Biographies of Contributors

Foreword

Preface and Acknowledgments

Abbreviations

Introduction

I. The Context

II. A Brief Overview of the Sierra Leonean Conflict

III. Brief Overview of the Establishment and Jurisdiction of the Special Court for Sierra Leone

IV. The Trials Conducted by the Special Court for Sierra Leone

V. The Organization and Contents of this Volume

VI. Concluding Remarks

Keynote Address The Challenge of Choice in the Investigation and Prosecution of International Crimes in Post-Conflict Sierra Le

Part I The Expectations of the Sierra Leone Tribunal

1 From Nuremberg to Freetown: Historical Antecedents of the Special Court for Sierra Leone

2 The Expectations and Role of International and National Civil Society and the SCSL

I. Introduction

II. Before the Negotiations for the Special Court Agreement (Pre-August 2000)

III. During the Negotiations and the SCSL’s Establishment (August 2000 to July 2002)

A. Sierra Leone Civil Society

B. International Civil Society

C. Sierra Leonean and International Civil Society Working Together

D. Special Court Working Group

E. SCSL Planning Mission: January 2002

IV. The Establishment of the SCSL

A. Working with Sierra Leone’s Legal Profession

B. Conflict Mapping and Engaging Sierra Leoneans in Their Accountability Process

C. Cementing the Special Court’s Place in Sierra Leone, Liberia, and Beyond

V. Conclusion

3 International Community Expectations of the Sierra Leone Special Court

Part II Approach to Individual Criminal Responsibility

4 Joint Criminal Enterprise at the Special Court for Sierra Leone

I. Introduction

II. The JCE Doctrine and JCE Pleadings before the SCSL

III. The Specificity of JCE Pleadings

A. JCE Pleading Requirements

B. Form of the Indictment Decisions

C. Discussion

IV. The AFRC Appeal Judgment: The Approval of a Noncriminal Purpose

A. AFRC Trial Judgment

B. AFRC Appeal Judgment

C. Discussion

V. The RUF Judgments: The Judicial Meltdown of JCE Doctrine

A. Noncriminal Purpose and Conduct Misapplied

B. The Case of Gbao: Joint Criminal Confusion

VI. Concluding Remarks

5 How the Approach to JCE in Taylor and the RUF Case Undermined the Demands of Justice at the Special Court for Sierra Leone

I. Introduction

II. Denial of the RUF Accused’s Right to Be Informed of the Charges

A. International Standards: Prompt and Detailed Notice

B. The RUF Trial and the Right to Be Informed – Departure from International Standards

1. The RUF Indictment

2. The SCSL’s New “Exceptions” to the Indictment Specificity Requirements

3. The RUF Test for the Admissibility of New Evidence

C. Conclusion: Denial of a Fair Opportunity to Defend the Charges

III. Imputation of Crimes to the RUF Accused: Assessing the Evidential Links between the Accused and the Crimes Pursuant to the

A. Abandonment of the ICTY and ICTR Approach to JCE: The Attribution of “Contemplated” Crimes to the Accused

B. The Culpability Principle: Imputing the Crimes of Non-JCE Members to the Accused

1. The SCSL’s Departure from International Standards

2. Employment of an Incorrect Evaluative Standard

3. Failure to Link Crimes to a JCE Member

IV. Violation of Taylor’s Right to Be Informed of the Charges

A. Conclusion: Punishment for Membership in the RUF, the Imputation of Crimes, and the Hamstringing of the Taylor Defense

B. Conclusion: Trials Lacking Due Process

6 Command Responsibility in the Sierra Leonean Conflict: The Duty to Take Measures to Prevent Crimes and Punish the Perpetrator

I. Introduction

II. Duty to Take Measures to Prevent and Punish

A. Is a Duty Required?

B. Locating the Duty

III. Content of the Duty

A. General Remarks

B. Measures Taken to Prevent

C. Measures Taken to Punish

1. Punishment by the Superior

(a) Sanctions

2. Referral to the Competent Authorities

(a) Disciplinary Body

(b) Judicial Body

IV. Conclusion

7 Command Responsibility in the Jungle: Some Reflections on the Elements of Effective Command and Control

I. Introduction

II. Constituent Elements of Superior Responsibility

III. The Sierra Leone Court and Superior Responsibility

A. The AFRC-Case

B. The RUF Case

C. Fofana and Kondewa

IV. Some Final Reflections

8 Authority, Responsibility, and Witchcraft: From Tintin to the SCSL

I. Mysticism, Modernity, and Authority in Tintin au Congo

II. The Limits of Rational Discourse in the CDF Trial

A. General Context

B. The Trial Chamber and the Majority of the Appeals Chamber

C. Judge Gelaga King’s Dissent in the Appeals Chamber

III. Conclusion

9 Legal Anthropology and the Construction of Complex Liabilities

I. Anthropology as a Tool for Assessing Complex Liabilities

II. Elusive Effective Control

III. The Role and Origin of Influence in Sierra Leone’s Armed Groups

Part III Approach to Substantive International Crimes

10 Forced Marriage as a Separate Crime against Humanity

I. Introduction

II. Marriage, War, and Crimes against Humanity in Sierra Leone

A. The Conflict in Sierra Leone

B. Marriage in Sierra Leone

C. Forced Marriage in the Sierra Leonean Civil War

III. Forced Marriage and International Law

A. The International Community Has Long Recognized the Constitutive Physical Acts Perpetrated against the Victimized Spouse of

B. The International Community Has a Vested Interest in Protecting the Family and the Institution of Marriage

C. All Marriages Require the Consent of Both Parties to Be Valid

D. The Crime of “Forced Marriage” Is Distinct from an Arranged Marriage

IV. Forced Marriage and the Statute for the Special Court for Sierra Leone

A. Perpetrators of Forced Marriage Inflict Great Suffering, and Serious Injury to Body or Mental or Physical Health by Means of

B. Forced Marriage Is an Act of a Similar Character to the Other Enumerated Crimes against Humanity because it Is Composed of C

C. Forced Marriage Was Part of a Widespread and Systematic Attack against the Civilian Population of Sierra Leone

D. Forced Marriage Is More than the Sum of Its Constituent Acts and Should Be Prosecuted as a Separate Crime in Order to Appro

E. Forced Marriage Is a Unique Crime and It Would Not Be Duplicitous to Proceed with Charges of Forced Marriage in Light of th

V. Defining Forced Marriage – Elements for a New Crime against Humanity

VI. Conclusion

11 Forced Marriage at the Special Court for Sierra Leone: Questions of Jurisdiction, Legality, Specificity, and Consistency

I. Introduction

II. Questions of Jurisdiction, Legality, and Limited Specificity in Pleading

A. Addition of Forced Marriage to the Indictments

B. Jurisdiction and Other Inhumane Acts

C. Judicial Oversight of the Court’s Jurisdiction

D. Limited Specificity in the Pleading of Forced Marriage

III. Shifting Prosecutorial Articulations and Varied Judicial Findings

A. Forced Marriage Added to the Indictments as a Crime of a Sexual Nature

B. Trial Chamber I Indirectly Reverses Itself

C. Trial Chamber II Contemplates Forced Marriage as a Nonsexual Crime

D. Sexual or Nonsexual? Trial Chamber I Does Not Commit

E. AFRC Prosecution Final Trial Brief – The First Comprehensive Definition of Forced Marriage

F. AFRC Trial Judgment – Forced Marriage Is Only Nonsexual

G. AFRC Appeals Judgment – Forced Marriage Is “Predominantly” Nonsexual

H. The RUF Trial Judgment – Forced Marriage Confirmed

I. The Charles Taylor Trial – Forced Marriage Is Withdrawn

IV. Conclusion

12 Evaluating the Special Court for Sierra Leone’s Gender Jurisprudence

I. Introduction

II. The SCSL’s Jurisprudence on Specific Types of Gender-Based Violence

A. Rape

B. Sexual Slavery

C. Forced Marriage/Conjugal Slavery

D. Outrages on Personal Dignity

III. Relation of Gender-Based Crimes to Other Crimes: Intersectionality

IV. Acts of Gender-Based Violence Directed against Men and Boys

V. Creating Silence on Gender-Based Crimes: The CDF Case

VI. Conclusion

13 The Judicial Contribution of the Special Court for Sierra Leone to the Prosecution of Terrorism

I. Introduction

II. The Ban of Act of Terrorism under the LOAC

A. The Notion of Acts of Terrorism in Warfare

B. Difficulties Related to the Scope of Application of the LOAC

III. Acts of Terrorism “In Wartime” and Individual Criminal Responsibility

A. Post–World War II Jurisprudence

B. The Position of the UN Ad Hoc Tribunals

IV. The SCSL Jurisprudence on Acts of Terrorism “In Wartime”

V. Conclusions

14 Fleshing Out the Contours of the Crime of Attacks against United Nations Peacekeepers – The Contribution of the Special Co

I. Introduction

II. Normative Foundations for UN Peacekeeping

III. International Law Prohibiting Attacks on UN Peacekeepers

IV. UNAMSIL as a Peacekeeping Mission

V. The Judgment of the Special Court in the RUF Case

VI. Conclusion

Part IV Approach to Challenging Issues in International Criminal Law

15 The Lomé Amnesty Decision of the Special Court for Sierra Leone

I. The Conflict in Sierra Leone, Amnesty, and the Lomé Agreement

II. The Decision of the Special Court for Sierra Leone on the Effectiveness of the Amnesty Provisions of the Lomé Agreement

III. Universal Jurisdiction Crimes

IV. The SCSL as an International Court

V. The Legality of Amnesties for Jus Cogens Crimes under International Law

VI. Conclusion

16 Piercing the Veil of Head-of-State Immunity: The Taylor Trial and Beyond

I. Introduction

II. Head of State Immunity before International Criminal Courts: The State of the Art

III. The Enforcement of Arrest Warrants Issued against Third-State Officials by Treaty-Based International Criminal Tribunals

IV. The Arrest of Taylor by U.N. Forces: Paving the Road to Follow?

17 Unpunished Crimes: The Special Court for Sierra Leone and Children

I. Introduction

II. Conscripting or Enlisting Children under the Age of 15 Years into Armed Forces or Groups or Using Them to Participate Activ

A. The Inclusion of the Crime in the Jurisdiction of the SCSL

B. Early Focus on Those Responsible

C. The Customary Nature of the Crime

D. Convictions and Precedent

E. Use of Children to Participate Actively in Hostilities

III. Juvenile Offenders

A. The Inclusion of Juvenile Offenders in the Mandate

B. The Use of Prosecutorial Discretion against the Prosecution of Juvenile Offenders: A Missed Opportunity?

IV. The Many Other Crimes Endured by Children in Sierra Leone

A. Additional Crimes Committed against “Child-Soldiers”

B. Forced Marriage and Sexual Crimes against Girls

C. Other Crimes against Other Children

V. Conclusion

18 After the Horror: Child Soldiers and the Special Court for Sierra Leone

I. Introduction

II. Bystanders

III. Perpetrators

IV. Victims

V. Conclusion

19 The Sentencing Legacy of the Special Court for Sierra Leone

I. Introduction

II. Legal Legacy

III. Normative Legacy

IV. Sociological Legacy

V. Conclusion

Part V Funding, Process, and Cooperation

20 Marketing Accountability at the Special Court for Sierra Leone

I. Introduction: On “Donors’ Justice”

II. Establishing the Court’s Voluntary Funding Structure

III. The Management Committee

IV. Donors’ Justice in Practice

V. SCSL Annual Reports: Narrating Budgetary Challenges

VI. Effects on Court Practice

VII. Conclusion

21 Subpoena Ad Testificandum and Duces Tecum: An Examination of the Jurisprudence of the Special Court for Sierra Leone

I. Introduction

A. Definitional Issues

B. Outline of the Chapter and Arguments

II. Legal Basis for Subpoenas in International Law

III. Conditions for the Issuance of Subpoenas

IV. The Question of Subpoenas before the Special Court for Sierra Leone

V. Conclusion

22 Witnessing History: Protective Measures at the Special Court for Sierra Leone

I. Introduction into Witness and Victim Protection and Support

II. The SCSL’s Goals Relate to Witness Protection Issues

A. Credible Justice

B. Overarching Concerns for Security

C. Commitment to the Live Delivery of Testimony

III. The Structural Aspects of Witness Protection

A. Location of the Court

B. The Prosecution and Defense Roles in Witness Protection and Support

C. The WVS at the SCSL

D. Critical Concerns with regard to Location and Relocation

IV. Conclusion

23 The Consequences of Witness Payments at the Special Court for Sierra Leone

I. Introduction

II. OTP Witness Payments

A. Source of Payments: Structure, Funding, and Function of the OTPWMU

1. Structure: Location within the Investigative Arm of OTP

2. Function: Opacity of Investigative Procedures

B. Defense Allegations of False Testimony

C. Judicial Engagement

1. Trial Chamber I: RUF Trial

2. Trial Chamber II: AFRC and Taylor Trials

III. Consequences for the SCSL’s Legacy

A. Importance of Transparency and Accountability

B. Demonstration Effects in the Local Context

IV. Conclusion

24 SCSL Practice on Cooperation with the Host State and Third States: A Contribution to Africa and International Criminal Just

I. Introduction

II. Background

III. Operational Points

IV. Financial Cooperation

V. International Cooperation and the Provision of Administrative, Security, and Related Support

VI. International Cooperation and the Facilitation of Testimony before the Court

A. Sanctions Regime

VII. Continuing and Future Cooperation

25 To Compete or to Complement? Assessing the Relationship between the Sierra Leone Special Court and the Truth and Reconciliat

I. Introduction

II. Background to the Sierra Leone TRC

III. Relationship between the Sierra Leone TRC and the SCSL

IV. Legal Instruments of the SCSL and TRC: Who Had More Powers?

V. Preoperational Debate

A. Information Sharing

B. Operational Collaboration

C. Witness Protection

D. Establishing a Formal Relationship

VI. Operational Relationship

A. Information Sharing

B. Conflict between the TRC and the SCSL: TRC Access to SCSL Detainees

VII. Conclusion

A. Collaboration on Investigations, Public Outreach, Use of Translators

B. Primacy/Exercise of Powers

C. Information Sharing

D. Access to Detainees in Custody of the Court

E. Witness Protection

F. Establishing an Institutional Relationship

Part VI Institutional Innovations in the Practice of the Special Court for Sierra Leone

26 How Special Is the Special Court’s Outreach Section?

I. Introduction

II. A Brief History of the Outreach Section1

III. What Has the Outreach Section Done?

A. Methods and Accomplishments

B. Staffing and Cost

C. Obstacles

D. The Effect of the Outreach Section on Other Tribunals

IV. How Innovative Was the Outreach Section?

V. Has the Outreach Section Been Successful?

A. Previous Assessments

B. Assessing the Outreach Section Using Empirical Evidence

1. Educating Sierra Leoneans about the SCSL

2. Communicating Information from Sierra Leoneans to the Court

3. Promoting the Rule of Law and Human Rights in Sierra Leone

VI. Conclusion

27 The Defense Office of the Special Court for Sierra Leone: A Watershed in Realizing the Rights of Accused Persons in Intern

I. Introduction

II. Brief Background on the Establishment of the Special Court for Sierra Leone

III. Establishment of the Defense Office

IV. Mandate and Functions of the Defense Office

A. Mandate of the SCSL Defense Office

B. The Functions and Roles of the Defense Office

V. Challenges That the SCSL Defense Office Faced

VI. Conclusion and Lessons Learned

28 The Naked Defense Office: How an Unclear Mandate, Poor Staffing, and Registry Disinterest Stripped the Office of the Princ

I. The Last-Minute Creation of the Defense Office

II. Developing the Form of the Defense Office: Justice Robertson’s “Public Defender” Model versus Registrar Vincent’s “Defens

III. An Acceptable Critique: The Inadequate Funding of the Special Court

IV. Privately Acknowledged, Publicly Omitted: Other Foundational Problems of the Defense Office

A. An Unclear Mandate

1. The Role of the Defense Office as Defined by Rule 45

2. The Limits of Its Independence: Fourth Pillar or Sub-Office?

B. Poor Staffing

1. Lack of Legal Research Facilities

2. Lack of Assistance in Securing Resources

3. Interference with Defense Counsel–Accused Relationship

4. Lack of Communication with Counsel

C. Registry Disinterest

1. Failure to Adequately Fund the Defense Office

2. Failure to Supervise Defense Office in Order to Ensure Effective Use of Funds

V. Conclusion

29 Addressing the Democratic Deficit in International Criminal Law and Procedure: Defense Participation in Lawmaking

I. Introduction

II. The Democratic Deficit and the Need for an Equal Defense Voice in the Lawmaking Process

A. Criminal Law for the Entire World: The Need for Civil Rights and Rights of the Defense in the Structure of International Cr

B. Democratic States versus International Organizations

III. Defense Voices in the Current Lawmaking Processes of ICC&Ts

A. Voices in Lawmaking in the ICTY, ICTR, and ICC: Structural Omission of the Defense, and Remedial Measures

1. The Lawmaking Documents

2. Who Makes and Changes This Law – Official Omission of the Defense and Counsel

3. Advisory Committees Including a Defense Voice – and a New Mechanism for Petitioning an IO

(a) Full Voice for the Representative of Counsel in the ICC’s Advisory Committee on Legal Texts

(b) “Suggestions” in the ACLT – Opening up to Petitions from the World’s Citizenry

B. Contribution of the SCSL and Further Advancement (and Retreat) in the STL

V. A Defense Organ, an Independent Bar, and Second-Best Options for the Future

Part VII Special Challenges Facing the Sierra Leone Tribunal

30 Prosecuting Those Bearing “Greatest Responsibility”: The Contributions of the Special Court for Sierra Leone

I. Introduction

A. Greatest Responsibility Jurisdiction and Its Significance

B. Structure of the Chapter and Main Arguments

II. Personal Jurisdiction in International Criminal Law from Nuremberg to Freetown

A. The Nuremberg and Tokyo Tribunals Had Limited Personal Jurisdiction

B. Contemporary International Tribunals Also Have Only Limited Personal Jurisdiction

III. The Judicial Debate Regarding the Meaning of Greatest Responsibility in the Special Court for Sierra Leone

A. Approaches to Interpretation of Greatest Responsibility

B. Greatest Responsibility as a Jurisdictional Requirement

C. Greatest Responsibility as a Guideline for Exercise of Prosecutorial Discretion

D. The Appeals Chamber Weighs In

IV. Discerning the Actual Meaning of “Greatest Responsibility”

A. The Ordinary Meaning of “Persons Who Bear the Greatest Responsibility”

B. The Drafting History of “Persons Who Bear the Greatest Responsibility”

V. Conclusion: KEY Contributions of the SCSL

31 The Civil Defense Forces Trial: Limit to International Justice?

I. The Sierra Leone War 1991–2002

II. Why Charge the CDF?

III. The Trial

IV. Norman Testimony

V. Conclusion

32 Lessons from the Trial of Charles Taylor at the Special Court for Sierra Leone

I. Introduction

II. Charles Taylor

A. Background

B. The Issuance of the Indictment

C. Taylor’s Surrender

D. The Trial

E. Verdict and Sentencing

III. The Conduct of the Taylor Trial

A. The Indictment: A Complicated Balance

B. Trial Management

1. Taylor’s Representation by Counsel

2. The Courtroom Calendar and Rulings on Motions

3. Delay in Decision on Pleading of Joint Criminal Enterprise (JCE)

4. Two Major Confrontations Stalled Court Proceedings

5. Witness Testimony: Largely Unlimited in Scope and Duration

6. Lengthy Presentation of Crime-Base Evidence

7. A Delayed Judgment

8. A Challenge for the Judges

C. The Defense

1. Defense Teams

2. Office of the Principal Defender

D. Witnesses and Sources

1. Management of Witnesses

2. Prosecution’s Provision of Funds to Potential Witnesses and Sources

IV. Lessons Learned

Part VIII The Impact and Legacy of the Sierra Leone Tribunal

33 Legacies in the Making: Assessing the Institutionalized Legacy Endeavor of the Special Court for Sierra Leone

I. Introduction

II. Theorizing Legacy Construction

A. Language of Legacy

B. Social Construction of Legacies

C. Legacy Actors

III. Institutionalizing Legacy at the SCSL

A. Developing a Legacy Vision

B. Professionalizing Legacy

C. Implementing Legacy Projects

IV. The Making of Legacies

A. Legacy Actor Landscape

B. Legacies under Construction

C. Limits to the Control over Legacies

V. Conclusion

34 Delivering International Criminal Justice at the Special Court for Sierra Leone: How Much Is Enough?

I. Introduction

II. Defining the Scope of SCSL’s Work

A. Origins of Its Mandate

B. Interpretation and Execution of the Court’s Mandate

C. Interpretation and Execution of the Court’s Mandate – Wider Expectations

D. Interpretation and Execution of the Court’s Mandate – Peace Expectations

E. Interpretation and Execution of the Court’s Mandate: Should Reparation Be a Legitimate Expectation?

F. Interpretation of the Court’s Mandate – The Role of the TRC, a Limiting Factor?

G. Interpretation of the Court’s Mandate – The July 1999 Lomé Peace Agreement, How Limiting?

H. Conclusion

III. Counting Success at the SCSL: Some Note of Achievement?

A. Core Mandate Successes

B. Achievements Outside the Mandate

IV. Case-Specific Legacy Activities and Their Impact

A. Professional Training, Knowledge, and Skills Transfer: Thinking behind the Concept

B. Professional Training, Knowledge, and Skills Transfer: How Adequate?

C. Sierra Leonean Staff Profile at the SCSL: Early Missteps and a Turnaround

D. Benefits to the National System – Justice Delivery Process

E. Developing Local Capacity: Some Challenges

V. Wider Impact of the Special Court’s Legacy

A. Developing a Culture of Compliance with International Legal Obligations

B. Regional, Continental, and Global Impact

VI. Conclusion

35 International Judicial Trials, Truth Commissions, and Gacaca: Developing a Framework for Transitional Justice from the Expe

I. The Experience of Sierra Leone

A. The Special Court for Sierra Leone (SCSL)

B. Truth and Reconciliation Commission (TRC)

C. Commentary and Lessons

II. The Experience of Rwanda

A. ICTR

B. Gacaca

C. Commentary and Lessons

III. Combinations of Processes: The Benefits and Factors to Consider

A. The Benefits of a Combination of Processes

B. Factors to Consider in Deciding on Processes

1. Studies and Guides on Post-Conflict Processes

2. Preliminary Efforts toward a Framework of Factors

IV. Conclusion

36 Assessing the Special Court’s Contribution to Achieving Transitional Justice

I. Defining Transitional Justice: A Comprehensive and Purpose-Driven Approach

A. The Context: Transitional Justice in the Landscape of Peace-, Democracy- and Justice-Building Efforts in Post-Settlement So

B. A Comprehensive Definition of Transitional Justice

C. Defining the Four Goals of Transitional Justice

1. Truth

2. Accountability

3. Reparations

4. Reconciliation

D. Mechanisms for Achieving Transitional Justice

II. Assessing the Special Court’s Contribution to Transitional Justice

A. The Assessment Framework

B. Assessing the Special Court’s Contribution to the Truth

1. Mode of Operation and Structure

2. Jurisdiction

3. Judgments

C. Assessing the Special Court’s Contribution to Accountability

1. Mode of Operation and Structure

2. Jurisdiction

3. Judgments

D. Assessing the Special Court’s Contribution to Reparations

1. Mode of Operation, Structure, and Jurisdiction

2. Judgments

E. Assessing the Special Court’s Contribution to Reconciliation

1. Mode of Operation, Structure, and Jurisdiction

2. Judgments

III. Conclusion

Conclusion

Index