Special Court For Sierra Leone Research Articles

WAS NIGERIA’S OFFERING OF ASYLUM STATUS TO PRESIDENT CHARLES TAYLOR OF LIBERIA A DIPLOMATIC BLUNDER?

This paper critically examines the appropriateness or otherwise of the granting of asylum status to former Liberian President, Charles Taylor by the Nigerian government on August 11, 2003. The paper argues that the granting of asylum status to Taylor was consistent with Nigeria’s Afrocentric foreign policy and traditional “big brother” role in Africa. The objective of the asylum was to end the 14-year-old-conflict and return peace and stability to Liberia. However, after the asylum was granted to Mr. Taylor, Nigeria came under serious international pressure from the United States (US) and Western allies to release Taylor for trial at the Special Court for Sierra Leone (SCSL). Using desktop review, the findings showed that the asylum was an outcome of a multilateral agreement in which the United Nations (UN), African Union, Economic Community of West African States (ECOWAS), the US, and the United Kingdom (UK) played active roles. The paper also establishes that granting asylum to Taylor was within Nigeria’s international obligation under Article 12(3) of the African Charter on Human and Peoples’ Rights of 1981, for which Taylor qualified at the time of the asylum. Similarly, the Declaration of Territorial Asylum, 1967 gives asylum granting the state the powers to evaluate the grounds for granting such asylum. Thus, Nigeria’s asylum accorded to Taylor was the country’s prerogative and consistent with international law even though he was indicted for war crimes and crimes against humanity by the SCSL. Therefore, Nigeria’s action in granting asylum to Mr. Taylor neither violated any treaty to which Nigeria was a signatory at the time of granting the asylum nor amounted to a diplomatic blunder. Rather, Nigeria’s willingness to grant asylum to Taylor which subsequently led to the successful resolution of the Liberian crisis was widely commended in global diplomatic circles. Apart from applying indigenous diplomacy in conflict resolution, Nigeria’s rating as an effective regional power increased. To sustain the country’s pedigree of diplomatic excellence in resolving the Liberian crisis, Nigeria should rally ECOWAS countries to deepen economic integration, achieve self-reliance and make the sub-region less vulnerable to manipulation by Western powers.

Book Review: The Legal Legacy of the Special Court for Sierra Leone (2020), ISBN-13: 978-1107178311, by Charles C. Jalloh

This article reviews the book by Professor Charles C. Jalloh, <strong>The Legal Legacy of the Special Court for Sierra Leone</strong>, published in 2020 by Cambridge University Press. In this book, the author examines the “hybrid” international/national criminal tribunal, known as the Special Court for Sierra Leone (SCSL), which was created under a pathbreaking bilateral treaty between the United Nations (UN) and the country of Sierra Leone as a UN member state. Jalloh seeks to evaluate the contributions made by SCSL to the development of international criminal law. In particular, he assesses the scope and significance of SCSL legal contributions from its solutions to problems arising between its opening and the completion of its work in 2013, having to do with personal and temporal jurisdiction; gender crimes as crimes against humanity; recruitment of children as war crimes; head-of-state immunity; amnesty; and tensions between criminal tribunals and truth commissions. <strong>Keywords:</strong> ICTR; Kabbah, Ahmad Tejan; Liberia; Lomé Peace Agreement; Rome Statute; RUF; Sierra Leone civil war; Sierra Leonean law; SCSL appeals chamber, trial chambers, registrar's office, prosecutor's office, and defense office; Taylor, Charles; temporal jurisdiction; The Hague; Truth and Reconciliation Commission; United Nations (UN) Secretary-General, Security Council, and Resolution 1315

Senior Leaders and Those Most Responsible at the Extraordinary Chambers in the Courts of Cambodia

This essay explores the way in which the Extraordinary Chambers in the Courts of Cambodia (ECCC) has interpreted its personal jurisdiction, particularly the language in its constitutive documents referring to senior leaders and those most responsible. It also compares the approach adopted by the ECCC to the approach ultimately adopted by the Special Court for Sierra Leone (SCSL), which has very similar language in its constitutive documents.

Intersectionality: Explaining SGBV Interlinked with Terrorism and Other International Crimes

Sexual and gender-based violence (SGBV) is often intertwined with and nested within other violations of international criminal law (ICL) as part of a broader attack against a group. However, ICL is not giving enough visibility to this nexus of crimes rooted in the intersection of identities and discrimination that underpins SGBV during conflict. Intersectionality is a concept originated in feminism and progressively recognized by international human rights law (IHRL). It posits that SGBV is caused by gender 'inextricably linked' with other identities and factors that result in compounded discrimination and unique aggravated harms. Based on case studies, this paper argues that ICL should integrate an intersectional approach based on identity and discrimination to address the nexus between SGBV and broader international crimes. Intersectionality enables a better understanding of the causes, harms, and gravity of SGBV, and it provides consistency with an IHRL interpretation. The article begins setting out the foundations of intersectionality in feminism and IHRL, and its applicability to ICL. It then applies intersectionality to two case studies that demonstrate the interlink of SGBV with broader violations of ICL: The Revolutionary United Front Case (RUF) trial judgment of the Special Court for Sierra Leone (SCSL) concerning SGBV and the war crime committing acts of terrorism, and Al Hassan, prosecuted at the International Criminal Court (ICC), concerning SGBV and the crime against humanity of persecution. It concludes with final remarks on why and how ICL would benefit from integrating an intersectional approach to SGBV.

Remarks by Charles C. Jalloh

As a preliminary remark, our starting point must be to recognize that, up until now, international criminal law has relied on what M.C. Bassiouni called “direct enforcement” by international criminal courts and “indirect enforcement” by national courts. The middle ground between the two extremes has been the use of “hybrid” courts such as the Special Court for Sierra Leone (SCSL). The SCSL married the domestic with the international, in an effort to combine the best of the international and national in order to advance accountability for serious international crimes.

Senior Leaders and Those Most Responsible at the Extraordinary Chambers in the Courts of Cambodia

This essay explores the way in which the Extraordinary Chambers in the Courts of Cambodia (ECCC) has interpreted its personal jurisdiction, particularly the language in its constitutive documents referring to senior leaders and those most responsible. It also compares the approach adopted by the ECCC to the approach ultimately adopted by the Special Court for Sierra Leone (SCSL), which has very similar language in its constitutive documents.

Practice theory and change in international law: theorizing the development of legal meaning through the interpretive practices of international criminal courts

AbstractThe question of change has emerged as one of the main conceptual and empirical challenges for International Relations' practice turn. In the context of international law, such a challenge is brought into particularly stark relief due to the significant development of legal meaning through more informal, interpretive avenues, including through the judgments of international courts. This paper develops a framework for theorizing how interpretive legal practices generate normative content change in international law. Specifically, it uses the example of the development of international criminal law through the decisions of international criminal courts to analyze how legal interpretation can lead to normative change in practice. Drawing on interviews conducted with judges and legal officers at the International Criminal Court (ICC), the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), and the Special Court for Sierra Leone (SCSL), I analyze how a community of legal practice centered around these courts was able to construct and alter legal meaning in international criminal law, and how such a potential for change was curbed by understandings of the interpretive process and the role of international courts dominant among international lawyers.

A New Influence of Legal Scholars? The Use of Academic Writings at International Criminal Courts and Tribunals

Which role have international legal scholars played in the development of international criminal law? Building on recent studies of the citation practices of international courts, the article provides an empirical assessment of the use and functions of citations to scholarly writings in the judgements of international criminal courts and tribunals. Using a mixed methods approach, the article combines a) a quantitative analysis of judgements interpreting the law of war crimes across five international and internationalized courts with b) qualitative interviews with judges and legal officers at the International Criminal Court (ICC), the ad hoc Tribunals, and the Special Court for Sierra Leone (SCSL). The article argues that scholarly writings have been strikingly visible in the judgements of international criminal courts and tribunals, and especially at the ICC, which entails significant implications for the functions of academic writings and the role of international legal scholars.

Practice Theory and Change in International Law: Theorizing the Development of Legal Meaning Through the Interpretive Practices of International Criminal Courts

The question of change has emerged as one of the main conceptual and empirical challenges for IR’s practice turn. In the context of international law, such a challenge is brought into particularly stark relief due to the significant development of legal meaning through more informal, interpretive avenues, including through the judgments of international courts. This article develops a framework for theorizing how interpretive legal practices generate normative content change in international law. Specifically, it uses the example of the development of international criminal law through the decisions of international criminal courts to analyze how legal interpretation can lead to normative change in practice. Drawing on interviews conducted with judges and legal officers at the International Criminal Court (ICC), the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), and the Special Court for Sierra Leone (SCSL), I analyze how a community of legal practice centered around these courts was able to construct and alter legal meaning in international criminal law, and how such a potential for change was curbed by understandings of the interpretive process and the role of international courts dominant among international lawyers.

A New Influence of Legal Scholars? The Use of Academic Writings at International Criminal Courts and Tribunals

AbstractWhat role have international legal scholars played in the development of international criminal law? Building on recent studies of the citation practices of international courts, the article provides an empirical assessment of the use and functions of citations to scholarly writings in the judgments of international criminal courts and tribunals. Using a mixed-methods approach, the article combines: a) a quantitative analysis of judgments interpreting the law of war crimes across four international and hybrid courts; with b) qualitative interviews with judges and legal officers at the International Criminal Court (ICC), thead hocTribunals, and the Special Court for Sierra Leone (SCSL). The article argues that scholarly writings have been strikingly visible in the judgments of international criminal courts and tribunals, and especially at the ICC, which entails significant implications for the functions of academic writings and the role of international legal scholars.

The unrealised potential for transformative reparations for sexual and gender-based violence in Sierra Leone

ABSTRACTThe conflict in Sierra Leone was known for the scope and severity of atrocities targeted at civilians, including sexual and gender-based violence (SGBV) mainly perpetrated against women and girls. Post-conflict initiatives included the establishment of a hybrid criminal tribunal, the Special Court for Sierra Leone (SCSL), and a truth and reconciliation commission (TRC). However, neither possessed a mandate for reparations to victims, yet both have made some contribution to tranformation. The judgments and processes of the SCSL have provided a measure of recognition to victims of SGBV. The TRC was required to to pay special attention to the experiences of women and girls in respect of sexual violence and structural inequality. It also interpreted its mandate broadly, in particular to making general recommendations as to the position of women and girls, as well as more specific recommendations as to reparations projects. These recommendations addressed three aspects of gender justice based on Fraser (recognition, representation and redistribution) and offered considerable scope for transformative reparations for victims of SGBV, including through structural, legal and social changes intended to guarantee the non-repetition of sexual violence. However, this article argues that although several of the TRC’s recommendations had transformative potential, much of this potential has not been realised due to the failure of the government to implement those recommendations.

The African contribution to the penalization of war crimes of sexual nature

Rape and other forms of sexual violence have been inseparably linked with the ongoing military conflicts. Despite the condemnation of war rape in modern times, its penalization arrived extraordinarily slowly. The last twenty years brought about a huge progress in the approach to the penalization of international crimes of sexual nature, which was developed in a hitherto unprecedented range in the jurisprudence of the international criminal tribunals, especially in Africa. The aim of this article is to present the cases of the International Criminal Tribunal for Rwanda (ICTR) which had a significant influence on the penalization of war crimes of sexual nature in the Statute of the International Criminal Court and two trials of the Special Court for Sierra Leone (SCSL), concerning the penalization of forced marriage. It shows how the African juridical traditions contributed to the problem of the penalization of sexual war crimes.

The Dance of Truth and Justice in Postconflict Peacebuilding in Sierra Leone

Since the 1980s, many states transitioning from complex political emergencies or conflicts have sought to pursue accountability for human rights abuses as part of their democratisation and/or peace-building process. The challenge though has been how best to manage the consequence of a violent past. Transitional justice has emerged as a tool by which transitional democracies answer to the demands for accountability for past abuses. The policy responses range from the adoption of purely restorative or retributive mechanisms to a combination of both. After 11 years of civil war in Sierra Leone, their government collaborated with the UN to establish the Truth and Reconciliation Commission (TRC) and the Special Court for Sierra Leone (SCSL) to address the baggage of abuses of the conflict. These two mechanisms had the same goal: to facilitate peace and stability in Sierra Leone, but through different approaches. The TRC was a restorative mechanism in that it was to reveal the truth about the conflict for the purposes of forging healing and national reconciliation with no punitive component. The SCSL was to conduct trials and punish those found guilty for the abuses that took place. The following

Sexual Violence against Child Soldiers

In addition to participating in hostilities, girl soldiers are often raped, sexually enslaved and used as “bush wives” by their commanders and fellow soldiers. As this issue of sexual violence against girl soldiers has become increasingly visible in recent cases before the International Criminal Court (ICC) and Special Court for Sierra Leone (SCSL), attempts have been made to prosecute this conduct within the established framework of international criminal law. Most recently, this issue has been addressed in the case of The Prosecutor v Bosco Ntaganda, one of the six cases that have come before the ICC from the situation in the Democratic Republic of Congo. On 9 June 2014, the Pre-Trial Chamber confirmed the charges in the Ntaganda case, and found that the rape and sexual slavery of girl soldiers in Ntaganda's armed group by other members of that group could constitute war crimes under Article 8(2)(e)(vi) of the Rome Statute. This article considers what the Ntaganda decision adds to the jurisprudence on sexual violence against child soldiers, and what it demonstrates about the limits of the law.

States and International Courts: The Politics of Prosecution in Sierra Leone

We examine the Special Court for Sierra Leone (SCSL) from the perspective of a principal-agent analysis. How much control did states exercise over the Court's prosecutor and what strategies did the prosecutor use to expand the Court's discretion? Although states generally delegate substantial discretion to international courts in order to maintain credibility, we find that states still exercised important influence over the SCSL by controlling resources vital to the Court's success. At the same time, the SCSL prosecutor implemented some strategies that enabled him to indict Charles Taylor against the wishes of the United States. The case suggests that states have figured out ways to achieve both credibility and influence, but that savvy international agents can have some success in circumventing the controls of state principals.

Complexity and Efficiency at International Criminal Courts

One of the most persistent criticisms of international criminal tribunals has been that they cost too much and take too long. In response, this Article presents a new approach that utilizes two concepts: complexity and efficiency. The first half of this Article proposes a method for measuring the complexity of criminal trials and then uses that method to measure the complexity of the trials conducted at the International Criminal Tribunal for the former Yugoslavia (“ICTY”). The results are striking. Even the least complex ICTY trial is more complex than the average criminal trial in the United States, and the most complex ICTY trials are among the most complex trials that have ever taken place. This highlights why it is misleading to compare the cost and length of the ICTY’s trials to other trials, both domestic and international, without first accounting for their complexity. The second half of the Article explores the efficiency of international criminal trials. Efficiency is defined as the complexity of a trial divided by its cost, and the Article calculates the overall efficiency of the ICTY and then compares that to the efficiency of the Special Court for Sierra Leone (SCSL) and a sample of criminal trials in the United States. The results show that the ICTY is more efficient than the SCSL and approximately as efficient as complex murder trials in the United States. The ICTY is less efficient than a typical domestic murder trial, but this appears to be because efficiency decreases as complexity increases, making such cases poor comparators. Although the data is sparse, the ICTY appears to be much more efficient than its closest domestic comparator — mass atrocity trials. Ultimately, the ICTY has been more efficient than cases of comparable gravity and complexity tried in domestic courts or at the SCSL.

Navigating the Tension between Effective and Efficient Legal Counseling and Respecting the Formal Rules of the Tribunals: What Compass to Use?

This paper focuses on the motivations and the dynamics that lie at the root of infringements by Defence lawyers of the formal rules and regulations of international criminal courts and tribunals (ICs or tribunals). Although not aplenty, there have been a few instances where Defence lawyers have become subject of disciplinary proceedings for failing to heed orders from the Bench, or more generally for not respecting the formal rules of the tribunals. Different tribunals, as the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), the Special Court for Sierra Leone (SCSL) and the International Criminal Court (ICC) have had to deal with cases of professional misconduct.First, this paper outlines briefly the various challenges concerning the work of Defence counsel practising at an international level. Subsequently, it addresses the motivations and the dynamics of why Defence counsel has failed to heed orders from the bench or to respect the formal rules and regulations of the tribunals. Such misconduct has resulted in disciplinary proceedings for a limited number of Defence counsel on charges of contempt of court or offences with regard to the administration of justice. This paper suggests that the present legal framework regulating the conduct of Defence counsel before different ICs leaves them a considerable margin of appreciation, which at times can obfuscate the difference between professional zeal and misconduct. Evidently, addressing professional misconduct at an international level requires a good level of cooperation between the existing disciplinary mechanisms at different tribunals and relevant domestic mechanisms.

How International Courts Shape Domestic Justice: Lessons from Rwanda and Sierra Leone

The International Criminal Tribunal for Rwanda (ICTR) and the Special Court for Sierra Leone (SCSL) were created to deliver accountability for the atrocities committed during Rwanda's genocide of 1994 and Sierra Leone's civil war of the 1990s. The capacity of these courts, however, like other international criminal tribunals, is limited in terms of the number of persons they can prosecute. If most perpetrators evade justice, the ability of international tribunals to deliver accountability may be seriously undermined. To mitigate this risk, national justice systems should deal with the perpetrators who are not addressed by international tribunals. When national systems do not do so (or fail to do so effectively), international tribunals are well placed to encourage (or improve) national atrocity-related judicial proceedings, thereby increasing their chances of delivering accountability.This article assesses empirically the impact of the ICTR and SCSL on national atrocity-related judicial proceedings in their target countries, thus contributing to an overall assessment of these tribunals. The article also compares the national impact of the ‘pure international’ ICTR to that of the ‘hybrid’ SCSL and tries to identify features that affect the national impact of an international tribunal. Understanding the interactions between international and national justice systems, and the features that affect the national impact of international tribunals, is particularly important given the shift to ‘positive complementarity’ at the International Criminal Court.

Daring Diversity – Why There Is Nothing Wrong with ‘Fragmentation’ in International Criminal Procedures

International criminal law has made impressive strides over the past twenty years. The 1990s and 2000s saw the establishment of ad hoc international criminal tribunals for the former Yugoslavia and for Rwanda (ICTY and ICTR), the coming into being of the permanent International Criminal Court (ICC), and the birth of several internationalized ‘hybrid’ jurisdictions, notably the Special Court for Sierra Leone (SCSL) and the Extraordinary Chambers in the Courts of Cambodia (ECCC). However, the dynamic development of international criminal law into a new branch of public international law has also led to some problems and confusion. The rules and principles developed by the newly founded international criminal tribunals have sometimes seemed at odds with accepted views on public international law more generally – raising fears about the ‘fragmentation’ of the law. Perhaps the best-known example of this is the controversy over the ‘overall-control’ test developed by the ICTY Appeals Chamber in the Tadić case to determine under which circumstances armed forces may be considered to be acting on behalf of a third state, rendering an internal armed conflict international. The Tadić test differed from the ‘effective-control’ test developed by the International Court of Justice (ICJ) in the Nicaragua case and confirmed in the Bosnia Genocide case, where the ICJ specifically rejected the ICTY approach. Also more generally, the discussion on ‘fragmentation’ and international criminal law continues; recently, Elies van Sliedregt set out in these pages her vision of legal pluralism in international criminal law.

The Transition of Responsibilities from the Special Court to the Residual Special Court for Sierra Leone: Challenges and Lessons Learned for Other International Tribunals

When it was created in 2002 the Special Court for Sierra Leone (SCSL) represented a new approach to the prosecution of international crimes. With the final appeal scheduled for delivery in September 2013, the SCSL is set to break new ground in the field of international criminal justice by being the first international tribunal to complete all of its judicial proceedings and transition to a residual Court. The United Nations and the Government of Sierra Leone have agreed to establish the Residual Special Court for Sierra Leone (RSCSL) to carry out the judicial and administrative responsibilities of the SCSL after its closure. The entire process, from initially identifying its residual functions and designing a flexible residual Court to manage them to the SCSL’s preparations for transition to the RSCSL, offers valuable lessons for other international tribunals that will close and transfer responsibilities to successor institutions in the future.