|
Report of the Secretary-General on the establishment of a Special Court for Sierra Leone 4 October 2000
| Author: UN Secretary-General,
Kofi Annan |
| Date: 4 October 2000 |
| Title:
Report of the Secretary-General on the establishment of a Special Court for Sierra Leone |
| Internal reference:
Document S/2000/915 |
| Original language:
English |
| Concerning: In accordance
with the agreement between the UN and the Government of Sierra Leone
(September 2000), the UN is to establish a special court for Sierra Leone,
trying those accused of war crimes and crimes against the humanity in the
9 year old Sierra Leonean civil war. The Secretary-General was requested
to make a report, outlining the premises for this Special Court. |
| Source: United
Nations, Security Council |
Report of the Secretary-General on the establishment of a Special Court for Sierra Leone
I. Introduction
1. The Security Council, by its resolution 1315
(2000) of 14 August 2000, requested me to negotiate an
agreement with the Government of Sierra Leone to
create an independent special court (hereinafter “the
Special Court”) to prosecute persons who bear the
greatest responsibility for the commission of crimes
against humanity, war crimes and other serious
violations of international humanitarian law, as well as
crimes under relevant Sierra Leonean law committed
within the territory of Sierra Leone.
2. The Security Council further requested that I
submit a report on the implementation of the
resolution, in particular on my consultations and
negotiations with the Government of Sierra Leone
concerning the establishment of the Special Court. In
the report I was requested, in particular, to address the
questions of the temporal jurisdiction of the Court; an
appeals process, including the advisability, feasibility
and appropriateness of an appeals chamber in the
Special Court, or of sharing the Appeals Chamber of
the International Tribunals for the Former Yugoslavia
and for Rwanda; and a possible alternative host State,
should it be necessary to convene the Special Court
outside the seat of the Court in Sierra Leone, if
circumstances so require.
3. Specific recommendations were also requested by
the Security Council on the following issues:
(a) Any additional agreements that might be
required for the provision of the international
assistance necessary for the establishment and
functioning of the Special Court;
(b) The level of participation, support and
technical assistance of qualified persons required from
Member States, including, in particular, States
members of the Economic Community of West African
States (ECOWAS) and the Commonwealth, and from
the United Nations Mission in Sierra Leone
(UNAMSIL) that would be necessary for the efficient,
independent and impartial functioning of the Special
Court;
(c) The amount of voluntary contributions of
funds, equipment and services, including expert
personnel from States, intergovernmental organizations
and non-governmental organizations;
(d) Whether the Special Court could receive, as
necessary and feasible, expertise and advice from the
International Tribunals for the Former Yugoslavia and
for Rwanda.
4. The present report, submitted in response to the
above requests, is in two parts. The first part (chaps. II-VI)
examines and analyses the nature and specificity of
the Special Court, its jurisdiction (subject-matter,
temporal and personal), the organizational structure
(the Chambers and the nature of the appeals process,
the offices of the Prosecutor and the Registry),
enforcement of sentences in third States and the choice
of the alternative seat. The second part (chaps. VII and
VIII) deals with the practical implementation of the
resolution on the establishment of the Special Court. It
describes the requirements of the Court in terms of
personnel, equipment, services and funds that would be
required of States, intergovernmental and non-governmental
organizations, the type of advice and
expertise that may be expected from the two
International Tribunals, and the logistical support and
security requirements for premises and personnel that
could, under an appropriate mandate, be provided by
UNAMSIL. The Court’s requirements in all of these
respects have been placed within the specific context of
Sierra Leone, and represent the minimum necessary, in
the words of resolution 1315 (2000), “for the efficient,
independent and impartial functioning of the Special
Court”. An assessment of the viability and
sustainability of the financial mechanism envisaged,
together with an alternative solution for the
consideration of the Security Council, concludes the
second part of the report.
5. The negotiations with the Government of Sierra
Leone, represented by the Attorney General and the
Minister of Justice, were conducted in two stages. The
first stage of the negotiations, held at United Nations
Headquarters from 12 to 14 September 2000, focused
on the legal framework and constitutive instruments
establishing the Special Court: the Agreement between
the United Nations and the Government of Sierra
Leone and the Statute of the Special Court which is an
integral part thereof. (For the texts of the Agreement
and the Statute, see the annex to the present report.)
6. Following the Attorney General’s visit to
Headquarters, a small United Nations team led by
Ralph Zacklin, Assistant Secretary-General for Legal
Affairs, visited Freetown from 18 to 20 September
2000. Mr. Zacklin was accompanied by Daphna
Shraga, Senior Legal Officer, Office of the Legal
Counsel, Office of Legal Affairs; Gerald Ganz,
Security Coordination Officer, Office of the United
Nations Security Coordinator; and Robert Kirkwood,
Chief, Buildings Management, International Tribunal
for the Former Yugoslavia. During its three-day visit,
the team concluded the negotiations on the remaining
legal issues, assessed the adequacy of possible
premises for the seat of the Special Court, their
operational state and security conditions, and had
substantive discussions on all aspects of the Special
Court with the President of Sierra Leone, senior
government officials, members of the judiciary and the
legal profession, the Ombudsman, members of civil
society, national and international non-governmental
organizations and institutions involved in child-care
programmes and rehabilitation of child ex-combatants,
as well as with senior officials of UNAMSIL.
7. In its many meetings with Sierra Leoneans of all
segments of society, the team was made aware of the
high level of expectations created in anticipation of the
establishment of a special court. If the role of the
Special Court in dealing with impunity and developing
respect for the rule of law in Sierra Leone is to be fully
understood and its educative message conveyed to
Sierra Leoneans of all ages, a broad public information
and education campaign will have to be undertaken as
an integral part of the Court’s activities. The purpose of
such a campaign would be both to inform and to
reassure the population that while a credible Special
Court cannot be established overnight, everything
possible will be done to expedite its functioning; that
while the number of persons prosecuted before the
Special Court will be limited, it would not be selective
or otherwise discriminatory; and that although the
children of Sierra Leone may be among those who have
committed the worst crimes, they are to be regarded
first and foremost as victims. For a nation which has
attested to atrocities that only few societies have
witnessed, it will require a great deal of persuasion to
convince it that the exclusion of the death penalty and
its replacement by imprisonment is not an “acquittal”
of the accused, but an imposition of a more humane
punishment. In this public information campaign,
UNAMSIL, alongside the Government and non-governmental
organizations, could play an important
role.
8. Since the present report is limited to an analysis
of the legal framework and the practical operation of
the Special Court, it does not address in detail specifics
of the relationship between the Special Court and the
national courts in Sierra Leone, or between the Court
and the National Truth and Reconciliation
Commission. It is envisaged, however, that upon the
establishment of the Special Court and the appointment
of its Prosecutor, arrangements regarding cooperation,
assistance and sharing of information between the
respective courts would be concluded and the status of
detainees awaiting trial would be urgently reviewed. In
a similar vein, relationship and cooperation
arrangements would be required between the
Prosecutor and the National Truth and Reconciliation
Commission, including the use of the Commission as
an alternative to prosecution, and the prosecution of
juveniles, in particular.
II. Nature and specificity of the Special Court
9. The legal nature of the Special Court, like that of
any other legal entity, is determined by its constitutive
instrument. Unlike either the International Tribunals
for the Former Yugoslavia and for Rwanda, which were
established by resolutions of the Security Council and
constituted as subsidiary organs of the United Nations,
or national courts established by law, the Special Court,
as foreseen, is established by an Agreement between
the United Nations and the Government of Sierra
Leone and is therefore a treaty-based sui generis court
of mixed jurisdiction and composition. Its
implementation at the national level would require that
the agreement is incorporated in the national law of
Sierra Leone in accordance with constitutional
requirements. Its applicable law includes international
as well as Sierra Leonean law, and it is composed of
both international and Sierra Leonean judges,1
prosecutors and administrative support staff.2 As a
treaty-based organ, the Special Court is not anchored in
any existing system (i.e., United Nations administrative
law or the national law of the State of the seat) which
would be automatically applicable to its non-judicial,
administrative and financial activities. In the absence
of such a framework, it would be necessary to identify
rules for various purposes, such as recruitment, staff
administration, procurement, etc., to be applied as the
need arose.3
10. The Special Court has concurrent jurisdiction
with and primacy over Sierra Leonean courts.
Consequently, it has the power to request at any stage
of the proceedings that any national Sierra Leonean
court defer to its jurisdiction (article 8, para. 2 of the
Statute). The primacy of the Special Court, however, is
limited to the national courts of Sierra Leone and does
not extend to the courts of third States. Lacking the
power to assert its primacy over national courts in third
States in connection with the crimes committed in
Sierra Leone, it also lacks the power to request the
surrender of an accused from any third State and to
induce the compliance of its authorities with any such
request. In examining measures to enhance the
deterrent powers of the Special Court, the Security
Council may wish to consider endowing it with
Chapter VII powers for the specific purpose of
requesting the surrender of an accused from outside the
jurisdiction of the Court.
11. Beyond its legal and technical aspects, which in
many ways resemble those of other international
jurisdictions, the Special Court is Sierra Leone-specific.
Many of the legal choices made are intended
to address the specificities of the Sierra Leonean
conflict, the brutality of the crimes committed and the
young age of those presumed responsible. The moral
dilemma that some of these choices represent has not
been lost upon those who negotiated its constitutive
instruments.
III. Competence of the Special Court
A. Subject-matter jurisdiction
12. The subject-matter jurisdiction of the Special
Court comprises crimes under international
humanitarian law and Sierra Leonean law. It covers the
most egregious practices of mass killing, extrajudicial
executions, widespread mutilation, in particular
amputation of hands, arms, legs, lips and other parts of
the body, sexual violence against girls and women, and
sexual slavery, abduction of thousands of children and
adults, hard labour and forced recruitment into armed
groups, looting and setting fire to large urban dwellings
and villages. In recognition of the principle of legality,
in particular nullum crimen sine lege, and the
prohibition on retroactive criminal legislation, the
international crimes enumerated, are crimes considered
to have had the character of customary international
law at the time of the alleged commission of the crime.
1. Crimes under international law
13. In its resolution 1315 (2000), the Security
Council recommended that the subject-matter
jurisdiction of the Special Court should include crimes
against humanity, war crimes and other serious
violations of international humanitarian law. Because
of the lack of any evidence that the massive, large-scale
killing in Sierra Leone was at any time
perpetrated against an identified national, ethnic, racial
or religious group with an intent to annihilate the group
as such, the Security Council did not include the crime
of genocide in its recommendation, nor was it
considered appropriate by the Secretary-General to
include it in the list of international crimes falling
within the jurisdiction of the Court.
14. The list of crimes against humanity follows the
enumeration included in the Statutes of the
International Tribunals for the Former Yugoslavia and
for Rwanda, which were patterned on article 6 of the
Nürnberg Charter. Violations of common article 3 of
the Geneva Conventions and of article 4 of Additional
Protocol II thereto committed in an armed conflict not
of an international character have long been considered
customary international law, and in particular since the
establishment of the two International Tribunals, have
been recognized as customarily entailing the individual
criminal responsibility of the accused. Under the
Statute of the International Criminal Court (ICC),
though it is not yet in force, they are recognized as war
crimes.
15. Other serious violations of international
humanitarian law falling within the jurisdiction of the
Court include:
(a) Attacks against the civilian population as
such, or against individual civilians not taking direct
part in hostilities;
(b) Attacks against peacekeeping personnel
involved in a humanitarian assistance or a
peacekeeping mission, as long as they are entitled to
the protection given to civilians under the international
law of armed conflict; and
(c) Abduction and forced recruitment of
children under the age of 15 years into armed forces or
groups for the purpose of using them to participate
actively in hostilities.
16. The prohibition on attacks against civilians is
based on the most fundamental distinction drawn in
international humanitarian law between the civilian and
the military and the absolute prohibition on directing
attacks against the former. Its customary international
law nature is, therefore, firmly established. Attacks
against peacekeeping personnel, to the extent that they
are entitled to protection recognized under international
law to civilians in armed conflict, do not represent a
new crime. Although established for the first time as an
international crime in the Statute of the International
Criminal Court, it was not viewed at the time of the
adoption of the Rome Statute as adding to the already
existing customary international law crime of attacks
against civilians and persons hors de combat. Based on
the distinction between peacekeepers as civilians and
peacekeepers turned combatants, the crime defined in
article 4 of the Statute of the Special Court is a
specification of a targeted group within the generally
protected group of civilians which because of its
humanitarian or peacekeeping mission deserves special
protection. The specification of the crime of attacks
against peacekeepers, however, does not imply a more
serious crime than attacks against civilians in similar
circumstances and should not entail, therefore, a
heavier penalty.
17. The prohibition on the recruitment of children
below the age of 15, a fundamental element of the
protection of children, was for the first time established
in the 1977 Additional Protocol II to the Geneva
Conventions, article 4, paragraph 3 (c), of which
provides that children shall be provided with the care
and aid they require, and that in particular:
“Children who have not attained the age of
fifteen years shall neither be recruited in the
armed forces or groups nor allowed to take part in
hostilities”.
A decade later, the prohibition on the recruitment of
children below 15 into armed forces was established in
article 38, paragraph 3, of the 1989 Convention on the
Rights of the Child; and in 1998, the Statute of the
International Criminal Court criminalized the
prohibition and qualified it as a war crime. But while
the prohibition on child recruitment has by now
acquired a customary international law status, it is far
less clear whether it is customarily recognized as a war
crime entailing the individual criminal responsibility of
the accused.
18. Owing to the doubtful customary nature of the
ICC Statutory crime which criminalizes the
conscription or enlistment of children under the age of
15, whether forced or “voluntary”, the crime which is
included in article 4 (c) of the Statute of the Special
Court is not the equivalent of the ICC provision. While
the definition of the crime as “conscripting” or
“enlisting” connotes an administrative act of putting
one’s name on a list and formal entry into the armed
forces, the elements of the crime under the proposed
Statute of the Special Court are:
(a) abduction, which
in the case of the children of Sierra Leone was the
original crime and is in itself a crime under common
article 3 of the Geneva Conventions;
(b) forced
recruitment in the most general sense — administrative
formalities, obviously, notwithstanding; and
(c) transformation of the child into, and its use as,
among other degrading uses, a “child-combatant”.
2. Crimes under Sierra Leonean law
19. The Security Council recommended that the
subject-matter jurisdiction of the Special Court should
also include crimes under relevant Sierra Leonean law
committed within the territory of Sierra Leone. While
most of the crimes committed in the Sierra Leonean
conflict during the relevant period are governed by the
international law provisions set out in articles 2 to 4 of
the Statute, recourse to Sierra Leonean law has been
had in cases where a specific situation or an aspect of it
was considered to be either unregulated or inadequately
regulated under international law. The crimes
considered to be relevant for this purpose and included
in the Statute are: offences relating to the abuse of girls
under the 1926 Prevention of Cruelty to Children Act
and offences relating to the wanton destruction of
property, and in particular arson, under the 1861
Malicious Damage Act.
20. The applicability of two systems of law implies
that the elements of the crimes are governed by the
respective international or national law, and that the
Rules of Evidence differ according to the nature of the
crime as a common or international crime. In that
connection, article 14 of the Statute provides that the
Rules of Procedure and Evidence of the International
Criminal Tribunal for Rwanda shall be applicable
mutatis mutandis to proceedings before the Special
Court, and that the judges shall have the power to
amend or adopt additional rules, where a specific
situation is not provided for. In so doing, they may be
guided, as appropriate, by the 1965 Criminal Procedure
Act of Sierra Leone.
B. Temporal jurisdiction of the Special
Court
21. In addressing the question of the temporal
jurisdiction of the Special Court as requested by the
Security Council, a determination of the validity of the
sweeping amnesty granted under the Lomé Peace
Agreement of 7 July 1999 was first required. If valid, it
would limit the temporal jurisdiction of the Court to
offences committed after 7 July 1999; if invalid, it
would make possible a determination of a beginning
date of the temporal jurisdiction of the Court at any
time in the pre-Lomé period.
1. The amnesty clause in the Lomé Peace
Agreement
22. While recognizing that amnesty is an accepted
legal concept and a gesture of peace and reconciliation
at the end of a civil war or an internal armed conflict,4
the United Nations has consistently maintained the
position that amnesty cannot be granted in respect of
international crimes, such as genocide, crimes against
humanity or other serious violations of international
humanitarian law.
23. At the time of the signature of the Lomé Peace
Agreement, the Special Representative of the
Secretary-General for Sierra Leone was instructed to
append to his signature on behalf of the United Nations
a disclaimer to the effect that the amnesty provision
contained in article IX of the Agreement (“absolute and
free pardon”) shall not apply to international crimes of
genocide, crimes against humanity, war crimes and
other serious violations of international humanitarian
law. This reservation is recalled by the Security
Council in a preambular paragraph of resolution 1315
(2000).
24. In the negotiations on the Statute of the Special
Court, the Government of Sierra Leone concurred with
the position of the United Nations and agreed to the
inclusion of an amnesty clause which would read as
follows:
“An amnesty granted to any person falling
within the jurisdiction of the Special Court in
respect of the crimes referred to in articles 2 to 4
of the present Statute shall not be a bar to
prosecution.”
With the denial of legal effect to the amnesty granted at
Lomé, to the extent of its illegality under international
law, the obstacle to the determination of a beginning
date of the temporal jurisdiction of the Court within the
pre-Lomé period has been removed.
2. Beginning date of the temporal jurisdiction
25. It is generally accepted that the decade-long civil
war in Sierra Leone dates back to 1991, when on 23
March of that year forces of the Revolutionary United
Front (RUF) entered Sierra Leone from Liberia and
launched a rebellion to overthrow the one-party
military rule of the All People’s Congress (APC). In
determining a beginning date of the temporal
jurisdiction of the Special Court within the period since
23 March 1991, the Secretary-General has been guided
by the following considerations:
(a) the temporal
jurisdiction should be reasonably limited in time so
that the Prosecutor is not overburdened and the Court
overloaded;
(b) the beginning date should correspond
to an event or a new phase in the conflict without
necessarily having any political connotations; and
(c) it
should encompass the most serious crimes committed
by persons of all political and military groups and in all
geographical areas of the country. A temporal
jurisdiction limited in any of these respects would
rightly be perceived as a selective or discriminatory
justice.
26. Imposing a temporal jurisdiction on the Special
Court reaching back to 1991 would create a heavy
burden for the prosecution and the Court. The
following alternative dates were therefore considered
as realistic options:
(a) 30 November 1996 — the conclusion of the
Abidjan Peace Agreement, the first comprehensive
Peace Agreement between the Government of Sierra
Leone and RUF. Soon after its signature the Peace
Agreement had collapsed and large-scale hostilities had
resumed;
(b) 25 May 1997 — the date of the coup d’état
orchestrated by the Armed Forces Revolutionary
Council (AFRC) against the Government that was
democratically elected in early 1996. The period which
ensued was characterized by serious violations of
international humanitarian law, including, in particular,
mass rape and abduction of women, forced recruitment
of children and summary executions;
(c) 6 January 1999 — the date on which
RUF/AFRC launched a military operation to take
control of Freetown. The first three-week period of full
control by these entities over Freetown marked the
most intensified, systematic and widespread violations
of human rights and international humanitarian law
against the civilian population. During its retreat in
February 1999, RUF abducted hundreds of young
people, particularly young women used as forced
labourers, fighting forces, human shields and sexual
slaves.
27. In considering the three options for the beginning
date of the temporal jurisdiction of the Court, the
parties have concluded that the choice of 30 November
1996 would have the benefit of putting the Sierra
Leone conflict in perspective without unnecessarily
extending the temporal jurisdiction of the Special
Court. It would also ensure that the most serious crimes
committed by all parties and armed groups would be
encompassed within its jurisdiction. The choice of 25
May 1997 would have all these advantages, with the
disadvantage of having a political connotation,
implying, wrongly, that the prosecution of those
responsible for the most serious violations of
international humanitarian law is aimed at punishment
for their participation in the coup d’état. The last
option marks in many ways the peak of the campaign
of systematic and widespread crimes against the
civilian population, as experienced mostly by the
inhabitants of Freetown. If the temporal jurisdiction of
the Court were to be limited to that period only, it
would exclude all crimes committed before that period
in the rural areas and the countryside. In view of the
perceived advantages of the first option and the
disadvantages associated with the other options, the
date of 30 November 1996 was selected as the
beginning date of the temporal jurisdiction of the
Special Court, a decision in which the government
negotiators have actively concurred.
28. As the armed conflict in various parts of the
territory of Sierra Leone is still ongoing, it was decided
that the temporal jurisdiction of the Special Court
should be left open-ended. The lifespan of the Special
Court, however, as distinguished from its temporal
jurisdiction, will be determined by a subsequent
agreement between the parties upon the completion of
its judicial activities, an indication of the capacity
acquired by the local courts to assume the prosecution
of the remaining cases, or the unavailability of
resources. In setting an end to the operation of the
Court, the Agreement would also determine all matters
relating to enforcement of sentences, pardon or
commutation, transfer of pending cases to the local
courts and the disposition of the financial and other
assets of the Special Court.
C. Personal jurisdiction
1. Persons “most responsible”
29. In its resolution 1315 (2000), the Security
Council recommended that the personal jurisdiction of
the Special Court should extend to those “who bear the
greatest responsibility for the commission of the
crimes”, which is understood as an indication of a
limitation on the number of accused by reference to
their command authority and the gravity and scale of
the crime. I propose, however, that the more general
term “persons most responsible” should be used.
30. While those “most responsible” obviously include
the political or military leadership, others in command
authority down the chain of command may also be
regarded “most responsible” judging by the severity of
the crime or its massive scale. “Most responsible”,
therefore, denotes both a leadership or authority
position of the accused, and a sense of the gravity,
seriousness or massive scale of the crime. It must be
seen, however, not as a test criterion or a distinct
jurisdictional threshold, but as a guidance to the
Prosecutor in the adoption of a prosecution strategy
and in making decisions to prosecute in individual
cases.
31. Within the meaning attributed to it in the present
Statute, the term “most responsible” would not
necessarily exclude children between 15 and 18 years
of age. While it is inconceivable that children could be
in a political or military leadership position (although
in Sierra Leone the rank of “Brigadier” was often
granted to children as young as 11 years), the gravity
and seriousness of the crimes they have allegedly
committed would allow for their inclusion within the
jurisdiction of the Court.
2. Individual criminal responsibility at 15 years
of age
32. The possible prosecution of children for crimes
against humanity and war crimes presents a difficult
moral dilemma. More than in any other conflict where
children have been used as combatants, in Sierra
Leone, child combatants were initially abducted,
forcibly recruited, sexually abused, reduced to slavery
of all kinds and trained, often under the influence of
drugs, to kill, maim and burn. Though feared by many
for their brutality, most if not all of these children have
been subjected to a process of psychological and
physical abuse and duress which has transformed them
from victims into perpetrators.
33. The solution to this terrible dilemma with respect
to the Special Court 5 could be found in a number of
options:
(a) determining a minimum age of 18 and
exempting all persons under that age from
accountability and individual criminal responsibility;
(b) having children between 15 to 18 years of age, both
victims and perpetrators, recount their story before the
Truth and Reconciliation Commission or similar
mechanisms, none of which is as yet functional; and
(c) having them go through the judicial process of
accountability without punishment, in a court of law
providing all internationally recognized guarantees of
juvenile justice.
34. The question of child prosecution was discussed
at length with the Government of Sierra Leone both in
New York and in Freetown. It was raised with all the
interlocutors of the United Nations team: the members
of the judiciary, members of the legal profession and
the Ombudsman, and was vigorously debated with
members of civil society, non-governmental
organizations and institutions actively engaged in
child-care and rehabilitation programmes.
35. The Government of Sierra Leone and
representatives of Sierra Leone civil society clearly
wish to see a process of judicial accountability for
child combatants presumed responsible for the crimes
falling within the jurisdiction of the Court. It was said
that the people of Sierra Leone would not look kindly
upon a court which failed to bring to justice children
who committed crimes of that nature and spared them
the judicial process of accountability. The international
non-governmental organizations responsible for child-care
and rehabilitation programmes, together with
some of their national counterparts, however, were
unanimous in their objection to any kind of judicial
accountability for children below 18 years of age for
fear that such a process would place at risk the entire
rehabilitation programme so painstakingly achieved.
While the extent to which this view represents the
majority view of the people of Sierra Leone is
debatable, it nevertheless underscores the importance
of the child rehabilitation programme and the need to
ensure that in the prosecution of children presumed
responsible, the rehabilitation process of scores of
other children is not endangered.
36. Given these highly diverging opinions, it is not
easy to strike a balance between the interests at stake. I
am mindful of the Security Council’s recommendation
that only those who bear “the greatest responsibility”
should be prosecuted. However, in view of the most
horrific aspects of the child combatancy in Sierra
Leone, the employment of this term would not
necessarily exclude persons of young age from the
jurisdiction of the Court. I therefore thought that it
would be most prudent to demonstrate to the Security
Council for its consideration how provisions on
prosecution of persons below the age of 18 —
“children” within the definition of the Convention on
the Rights of the Child — before an international
jurisdiction could be formulated.6 Therefore, in order
to meet the concerns expressed by, in particular, those
responsible for child care and rehabilitation
programmes, article 15, paragraph 5, of the Statute
contains the following provision:
“In the prosecution of juvenile offenders,
the Prosecutor shall ensure that the child-rehabilitation
programme is not placed at risk,
and that, where appropriate, resort should be had
to alternative truth and reconciliation
mechanisms, to the extent of their availability.”
37. Furthermore, the Statute of the Special Court, in
article 7 and throughout the text, contains
internationally recognized standards of juvenile justice
and guarantees that juvenile offenders are treated in
dignity and with a sense of worth. Accordingly, the
overall composition of the judges should reflect their
experiences in a variety of fields, including in juvenile
justice (article 13, para. 1); the Office of the Prosecutor
should be staffed with persons experienced in gender-related
crimes and juvenile justice (article 15, para. 4).
In a trial of a juvenile offender, the Special Court
should, to the extent possible, order the immediate
release of the accused, constitute a “Juvenile
Chamber”, order the separation of the trial of a juvenile
from that of an adult, and provide all legal and other
assistance and order protective measures to ensure the
privacy of the juvenile. The penalty of imprisonment is
excluded in the case of a juvenile offender, and a
number of alternative options of correctional or
educational nature are provided for instead.
38. Consequently, if the Council, also weighing in the
moral-educational message to the present and next
generation of children in Sierra Leone, comes to the
conclusion that persons under the age of 18 should be
eligible for prosecution, the statutory provisions
elaborated will strike an appropriate balance between
all conflicting interests and provide the necessary
guarantees of juvenile justice. It should also be stressed
that, ultimately, it will be for the Prosecutor to decide
if, all things considered, action should be taken against
a juvenile offender in any individual case.
IV. Organizational structure of the
Special Court
39. Organizationally, the Special Court has been
conceived as a self-contained entity, consisting of three
organs: the Chambers (two Trial Chambers and an
Appeals Chamber), the Prosecutor’s Office and the
Registry. In the establishment of ad hoc international
tribunals or special courts operating as separate
institutions, independently of the relevant national
legal system, it has proved to be necessary to comprise
within one and the same entity all three organs. Like
the two International Tribunals, the Special Court for
Sierra Leone is established outside the national court
system, and the inclusion of the Appeals Chamber
within the same Court was thus the obvious choice.
A. The Chambers
40. In its resolution 1315 (2000), the Security
Council requested that the question of the advisability,
feasibility and appropriateness of sharing the Appeals
Chamber of the International Tribunals for the Former
Yugoslavia and for Rwanda should be addressed. In
analysing this option from the legal and practical
viewpoints, I have concluded that the sharing of a
single Appeals Chamber between jurisdictions as
diverse as the two International Tribunals and the
Special Court for Sierra Leone is legally unsound and
practically not feasible, without incurring unacceptably
high administrative and financial costs.
41. While in theory the establishment of an
overarching Appeals Chamber as the ultimate judicial
authority in matters of interpretation and application of
international humanitarian law offers a guarantee of
developing a coherent body of law, in practice, the
same result may be achieved by linking the
jurisprudence of the Special Court to that of the
International Tribunals, without imposing on the shared
Appeals Chamber the financial and administrative
constraints of a formal institutional link. Article 20,
paragraph 3, of the Statute accordingly provides that
the judges of the Appeals Chamber of the Special
Court shall be guided by the decisions of the Appeals
Chamber of the Yugoslav and the Rwanda Tribunals;
article 14, paragraph 1, of the Statute provides that the
Rules of Procedure and Evidence of the Rwanda
Tribunal shall be applicable mutatis mutandis to the
proceedings before the Special Court.
42. The sharing of one Appeals chamber between all
three jurisdictions would strain the capacity of the
already heavily burdened Appeals Chamber of the two
Tribunals in ways which could either bring about the
collapse of the appeals system as a whole, or delay
beyond acceptable human rights standards the
detention of accused pending the hearing of appeals
from either or all jurisdictions. On the assumption that
all judgements and sentencing decisions of the Trial
Chambers of the Special Court will be appealed, as
they have been in the cases of the two International
Tribunals, and that the number of accused will be
roughly the same as in each of the International
Tribunals, the Appeals Chamber would be required to
add to its current workload a gradual increase of
approximately one third.
43. Faced with an exponential growth in the number
of appeals lodged on judgements and interlocutory
appeals in relation to an increasing number of accused
and decisions rendered, the existing workload of the
Appeals Chamber sitting in appeals from six Trial
Chambers of the two ad hoc Tribunals is constantly
growing. Based on current and anticipated growth in
workload, existing trends 7 and the projected pace of
three to six appeals on judgements every year, the
Appeals Chamber has requested additional resources in
funds and personnel. With the addition of two Trial
Chambers of the Special Court, making a total of eight
Trial Chambers for one Appeals Chamber, the burden
on the Yugoslav and Rwanda Appeals Chamber would
be untenable, and the Special Court would be deprived
of an effective and viable appeals process.
44. The financial costs which would be entailed for
the Appeals Chamber when sitting on appeals from the
Special Court will have to be borne by the regular
budget, regardless of the financial mechanism
established for the Special Court itself. These financial
costs would include also costs of translation into
French, which is one of the working languages of the
Appeals Chamber of the International Tribunals; the
working language of the Special Court will be English.
45. In his letter to the Legal Counsel in response to
the request for comments on the eventuality of sharing
the Appeals Chamber of the two international Tribunals
with the Special Court, the President of the
International Tribunal for the Former Yugoslavia
wrote:
“With regard to paragraph 7 of Security
Council resolution 1315 (2000), while the sharing
of the Appeals Chamber of [the two International
Tribunals] with that of the Special Court would
bear the significant advantage of ensuring a better
standardization of international humanitarian law,
it appeared that the disadvantages of this
option — excessive increase of the Appeals
Chambers’ workload, problems arising from the
mixing of sources of law, problems caused by the
increase in travelling by the judges of the Appeals
Chambers and difficulties caused by mixing the
different judges of the three tribunals — outweigh
its benefits.”8
46. For these reasons, the parties came to the
conclusion that the Special Court should have two Trial
Chambers, each with three judges, and an Appeals
Chamber with five judges. Article 12, paragraph 4,
provides for extra judges to sit on the bench in cases
where protracted proceedings can be foreseen and it is
necessary to make certain that the proceedings do not
have to be discontinued in case one of the ordinary
judges is unable to continue hearing the case.
B. The Prosecutor
47. An international prosecutor will be appointed by
the Secretary-General to lead the investigations and
prosecutions, with a Sierra Leonean Deputy. The
appointment of an international prosecutor will
guarantee that the Prosecutor is, and is seen to be,
independent, objective and impartial.
C. The Registrar
48. The Registrar will service the Chambers and the
Office of the Prosecutor and will have the
responsibility for the financial management and
external relations of the Court. The Registrar will be
appointed by the Secretary-General as a staff member
of the United Nations.
V. Enforcement of sentences
49. The possibility of serving prison sentences in
third States is provided for in article 22 of the Statute.
While imprisonment shall normally be served in Sierra
Leone, particular circumstances, such as the security
risk entailed in the continued imprisonment of some of
the convicted persons on Sierra Leonean territory, may
require their relocation to a third State.
50. Enforcement of sentences in third countries will
be based on an agreement between the Special Court 9
and the State of enforcement. In seeking indications of
the willingness of States to accept convicted persons,
priority should be given to those which have already
concluded similar agreements with either of the
International Tribunals, as an indication that their
prison facilities meet the minimum standards of
conditions of detention. Although an agreement for the
enforcement of sentences will be concluded between
the Court and the State of enforcement, the wishes of
the Government of Sierra Leone should be respected.
In that connection, preference was expressed for such
locations to be identified in an East African State.
VI. An alternative host country
51. In paragraph 7 of resolution 1315 (2000), the
Security Council requested that the question of a
possible alternative host State be addressed, should it
be necessary to convene the Special Court outside its
seat in Sierra Leone, if circumstances so required. As
the efforts of the United Nations Secretariat, the
Government of Sierra Leone and other interested
Member States are currently focused on the
establishment of the Special Court in Sierra Leone, it is
proposed that the question of the alternative seat should
be addressed in phases. An important element in
proceeding with this issue is also the way in which the
Security Council addresses the present report, that is, if
a Chapter VII element is included.
52. In the first phase, criteria for the choice of the
alternative seat should be determined and a range of
potential host countries identified. An agreement, in
principle, should be sought both from the Government
of Sierra Leone for the transfer of the Special Court to
the State of the alternative seat, and from the
authorities of the latter, for the relocation of the seat to
its territory.
53. In the second phase, a technical assessment team
would be sent to identify adequate premises in the third
State or States. Once identified, the three parties,
namely, the United Nations, the Government of Sierra
Leone and the Government of the alternative seat,
would conclude a Framework Agreement, or “an
agreement to agree” for the transfer of the seat when
circumstances so required. The Agreement would
stipulate the nature of the circumstances which would
require the transfer of the seat and an undertaking to
conclude in such an eventuality a Headquarters
Agreement. Such a principled Agreement would
facilitate the transfer of the seat on an emergency basis
and enable the conclusion of a Headquarters
Agreement soon thereafter.
54. In the choice of an alternative seat for the Special
Court, the following considerations should be taken
into account: the proximity to the place where the
crimes were committed, and easy access to victims,
witnesses and accused. Such proximity and easy access
will greatly facilitate the work of the Prosecutor, who
will continue to conduct his investigations in the
territory of Sierra Leone.10 During the negotiations, the
Government expressed a preference for a West African
alternative seat, in an English-speaking country sharing
a common-law legal system.
VII. Practical arrangements for the
operation of the Special Court
55. The Agreement and the Statute of the Special
Court establish the legal and institutional framework of
the Court and the mutual obligations of the parties with
regard, in particular, to appointments to the Chambers,
the Office of the Prosecutor and the Registry and, the
provision of premises. However, the practical
arrangements for the establishment and operation of the
Special Court remain outside the scope of the
Agreement in the sense that they depend on
contributions of personnel, equipment, services and
funds from Member States and intergovernmental and
non-governmental organizations. It is somewhat
anomalous, therefore, that the parties which establish
the Special Court, in practice, are dependent for the
implementation of their treaty obligations on States and
international organizations which are not parties to the
Agreement or otherwise bound by its provisions.
56. Proceeding from the premise that voluntary
contributions would constitute the financial mechanism
of the Special Court, the Security Council requested
the Secretary-General to include in the report
recommendations regarding the amount of voluntary
contributions, as appropriate, of funds, equipment and
services to the Special Court, contributions in
personnel, the kind of advice and expertise expected of
the two ad hoc Tribunals, and the type of support and
technical assistance to be provided by UNAMSIL. In
considering the estimated requirements of the Special
Court in all of these respects, it must be borne in mind
that at the current stage, the Government of Sierra
Leone is unable to contribute in any significant way to
the operational costs of the Special Court, other than in
the provision of premises, which would require
substantial refurbishment, and the appointment of
personnel, some of whom may not even be Sierra
Leonean nationals. The requirements set out below
should therefore be understood for all practical
purposes as requirements that have to be met through
contributions from sources other than the Government
of Sierra Leone.
A. Estimated requirements of the Special
Court for the first operational phase
1. Personnel and equipment
57. The personnel requirements of the Special Court
for the initial operational phase 11 are estimated to
include:
(a) Eight Trial Chamber judges (3 sitting judges
and 1 alternate judge in each Chamber) and 6 Appeals
Chamber judges (5 sitting judges and 1 alternate
judge), 1 law clerk, 2 support staff for each Chamber
and 1 security guard detailed to each judge (14);
(b) A Prosecutor and a Deputy Prosecutor, 20
investigators, 20 prosecutors and 26 support staff;
(c) A Registrar, a Deputy Registrar, 27
administrative support staff and 40 security officers;
(d) Four staff in the Victims and Witnesses
Unit;
(e) One correction officer and 12 security
officers in the detention facilities.
58. Based on the United Nations scale of salaries for
a one-year period, the personnel requirements along
with the corresponding equipment and vehicles are
estimated on a very preliminary basis to be US$ 22
million. The calculation of the personnel requirements
is premised on the assumption that all persons
appointed (whether by the United Nations or the
Government of Sierra Leone) will be paid from United
Nations sources.
59. In seeking qualified personnel from States
Members of the United Nations, the importance of
obtaining such personnel from members of the
Commonwealth, sharing the same language and
common-law legal system, has been recognized. The
Office of Legal Affairs has therefore approached the
Commonwealth Secretariat with a request to identify
possible candidates for the positions of judges,
prosecutors, Registrar, investigators and administrative
support staff. How many of the Commonwealth
countries would be in a position to voluntarily
contribute such personnel with their salaries and
emoluments is an open question. A request similar to
that which has been made to the Commonwealth will
also be made to the Economic Community of West
African States (ECOWAS).
2. Premises
60. The second most significant component of the
requirements of the Court for the first operational
phase is the cost of premises. During its visit to
Freetown, the United Nations team visited a number of
facilities and buildings which the Government believes
may accommodate the Special Court and its detention
facilities: the High Court of Sierra Leone, the Miatta
Conference Centre and an adjacent hotel, the
Presidential Lodge, the Central Prison (Pademba Road
Prison), and the New England Prison. In evaluating
their state of operation, the team concluded that none
of the facilities offered were suitable or could be made
operational without substantial investment. The use of
the existing High Court would incur the least
expenditure (estimated at $1.5 million); but would
considerably disrupt the ordinary schedule of the Court
and eventually bring it to a halt. Since it is located in
central Freetown, the use of the High Court would
pose, in addition, serious security risks. The use of the
Conference Centre, the most secure site visited, would
require large-scale renovation, estimated at $5.8
million. The Presidential Lodge was ruled out on
security grounds.
61. In the light of the above, the team has considered
the option of constructing a prefabricated, self-contained
compound on government land. This option
would have the advantage of an easy expansion paced
with the growth of the Special Court, a salvage value at
the completion of the activities of the Court, the
prospect of a donation in kind and construction at no
rental costs. The estimated cost of this option is $2.9
million.
62. The two detention facilities visited by the team
were found to be inadequate in their current state. The
Central Prison (Pademba Road Prison) was ruled out
for lack of space and security reasons. The New
England Prison would be a possible option at an
estimated renovation cost of $600,000.
63. The estimated cost requirements of personnel and
premises set out in the present report cover the two
most significant components of its prospective budget
for the first operational stage. Not included in the
present report are the general operational costs of the
Special Court and of the detention facilities; costs of
prosecutorial and investigative activities; conference
services, including the employment of court translators
from and into English, Krio and other tribal languages;
and defence counsel, to name but a few.
B. Expertise and advice from the two
International Tribunals
64. The kind of advice and expertise which the two
International Tribunals may be expected to share with
the Special Court for Sierra Leone could take the form
of any or all of the following: consultations among
judges of both jurisdictions on matters of mutual
interest; training of prosecutors, investigators and
administrative support staff of the Special Court in The
Hague, Kigali and Arusha, and training of such
personnel on the spot by a team of prosecutors,
investigators and administrators from both Tribunals;
advice on the requirements for a Court library and
assistance in its establishment, and sharing of
information, documents, judgements and other relevant
legal material on a continuous basis.
65. Both International Tribunals have expressed
willingness to share their experience in all of these
respects with the Special Court. They have accordingly
offered to convene regular meetings with the judges of
the Special Court to assist in adopting and formulating
Rules of Procedure based on experience acquired in the
practice of both Tribunals; to train personnel of the
Special Court in The Hague and Arusha to enable them
to acquire practical knowledge of the operation of an
international tribunal; and when necessary, to
temporarily deploy experienced staff, including a
librarian, to the Special Court. In addition, the
International Tribunal for the Former Yugoslavia has
offered to provide to the Special Court legal material in
the form of CD-ROMs containing motions, decisions,
judgements, court orders and the like. The transmission
of such material to the Special Court in the period
pending the establishment of a full-fledged library
would be of great assistance.
C. Support and technical assistance from
UNAMSIL
66. The support and technical assistance of
UNAMSIL in providing security, logistics,
administrative support and temporary accommodation
would be necessary in the first operational phase of the
Special Court. In the precarious security situation now
prevailing in Sierra Leone and given the state of the
national security forces, UNAMSIL represents the only
credible force capable of providing adequate security
to the personnel and the premises of the Special Court.
The specificities of the security measures required
would have to be elaborated by the United Nations, the
Government of Sierra Leone and UNAMSIL, it being
understood, however, that any such additional tasks
entrusted to UNAMSIL would have to be approved by
the Security Council and reflected in a revised mandate
with a commensurate increase in financial, staff and
other resources.
67. UNAMSIL’s administrative support could be
provided in the areas of finance, personnel and
procurement. Utilizing the existing administrative
support in UNAMSIL, including, when feasible, shared
facilities and communication systems, would greatly
facilitate the start-up phase of the Special Court and
reduce the overall resource requirements. In that
connection, limited space at the headquarters of
UNAMSIL could be made available for the temporary
accommodation of the Office of the Prosecutor,
pending the establishment or refurbishment of a site for
the duration of the Special Court.
VIII. Financial mechanism of the
Special Court
68. In paragraph 8 (c) of resolution 1315 (2000), the
Security Council requested the Secretary-General to
include recommendations on “the amount of voluntary
contributions, as appropriate, of funds, equipment and
services to the special court, including through the
offer of expert personnel that may be needed from
States, intergovernmental organizations and non-governmental
organizations”. It would thus seem that
the intention of the Council is that a Special Court for
Sierra Leone would be financed from voluntary
contributions. Implicit in the Security Council
resolution, therefore, given the paucity of resources
available to the Government of Sierra Leone, was the
intention that most if not all operational costs of the
Special Court would be borne by States Members of
the Organization in the form of voluntary
contributions.
69. The experience gained in the operation of the two
ad hoc International Tribunals provides an indication of
the scope, costs and long-term duration of the judicial
activities of an international jurisdiction of this kind.
While the Special Court differs from the two Tribunals
in its nature and legal status, the similarity in the kind
of crimes committed, the temporal, territorial and
personal scope of jurisdiction, the number of accused,
the organizational structure of the Court and the Rules
of Procedure and Evidence suggest a similar scope and
duration of operation and a similar need for a viable
and sustainable financial mechanism.
70. A financial mechanism based entirely on
voluntary contributions will not provide the assured
and continuous source of funding which would be
required to appoint the judges, the Prosecutor and the
Registrar, to contract the services of all administrative
and support staff and to purchase the necessary
equipment. The risks associated with the establishment
of an operation of this kind with insufficient funds, or
without long-term assurances of continuous availability
of funds, are very high, in terms of both moral
responsibility and loss of credibility of the
Organization, and its exposure to legal liability. In
entering into contractual commitments which the
Special Court and, vicariously, the Organization might
not be able to honour, the United Nations would expose
itself to unlimited third-party liability. A special court
based on voluntary contributions would be neither
viable nor sustainable.
71. In my view, the only realistic solution is
financing through assessed contributions. This would
produce a viable and sustainable financial mechanism
affording secure and continuous funding. It is
understood, however, that the financing of the Special
Court through assessed contributions of the Member
States would for all practical purposes transform a
treaty-based court into a United Nations organ
governed in its financial and administrative activities
by the relevant United Nations financial and staff
regulations and rules.
72. The Security Council may wish to consider an
alternative solution, based on the concept of a “national
jurisdiction” with international assistance, which would
rely on the existing — however inadequate — Sierra
Leonean court system, both in terms of premises (for
the Court and the detention facilities) and
administrative support. The judges, prosecutors,
investigators and administrative support staff would be
contributed by interested States. The legal basis for the
special “national” court would be a national law,
patterned on the Statute as agreed between the United
Nations and the Government of Sierra Leone (the
international crimes being automatically incorporated
into the Sierra Leonean common-law system). Since
the mandate of the Secretary-General is to recommend
measures consistent with resolution 1315 (2000), the
present report does not elaborate further on this
alternative other than to merely note its existence.
IX. Conclusion
73. At the request of the Security Council, the present
report sets out the legal framework and practical
arrangements for the establishment of a Special Court
for Sierra Leone. It describes the requirements of the
Special Court in terms of funds, personnel and services
and underscores the acute need for a viable financial
mechanism to sustain it for the duration of its lifespan.
It concludes that assessed contributions is the only
viable and sustainable financial mechanism of the
Special Court.
74. As the Security Council itself has recognized, in
the past circumstances of Sierra Leone, a credible
system of justice and accountability for the very
serious crimes committed there would end impunity
and would contribute to the process of national
reconciliation and to the restoration and maintenance
of peace in that country. In reviewing the present report
and considering what further action must be taken, the
Council should bear in mind the expectations that have
been created and the state of urgency that permeates all
discussions of the problem of impunity in Sierra Leone.
Notes
1 - At the request of the Government, reference in the
Statute and the Agreement to “Sierra Leonean judges”
was replaced by “judges appointed by the Government
of Sierra Leone”. This would allow the Government
flexibility of choice between Sierra Leonean and non-Sierra
Leonean nationals and broaden the range of
potential candidates from within and outside Sierra
Leone.
2 - In the case of the Tribunals for the Former Yugoslavia
and for Rwanda, the non-inclusion in any position of
nationals of the country most directly affected was
considered a condition for the impartiality, objectivity
and neutrality of the Tribunal.
3 - This method may not be advisable, since the Court
would be manned by a substantial number of staff and
financed through voluntary contributions in the amount
of millions of dollars every year.
4 - Article 6, paragraph 5, of the 1977 Protocol II
Additional to the Geneva Conventions and Relating to
the Protection of Non-international Armed Conflicts
provides that:
“At the end of hostilities, the authorities in
power shall endeavour to grant the broadest
possible amnesty to persons who have participated
in the armed conflict, or those deprived of their
liberty for reasons related to the armed conflict,
whether they are interned or detained.”
5 - The jurisdiction of the national courts of Sierra Leone is
not limited by the Statute, except in cases where they
have to defer to the Special Court.
6 - While there is no international law standard for the
minimum age for criminal responsibility, the ICC Statute
excludes from the jurisdiction of the Court persons under
the age of 18. In so doing, however, it was not the
intention of its drafters to establish, in general, a
minimum age for individual criminal responsibility.
Premised on the notion of complementarity between
national courts and ICC, it was intended that persons
under 18 presumed responsible for the crimes for which
the ICC had jurisdiction would be brought before their
national courts, if the national law in question provides
for such jurisdiction over minors.
7 - The Appeals Chamber of the International Tribunal for
the Former Yugoslavia has so far disposed of a total of
5 appeals from judgements and 44 interlocutory appeals;
and the Appeals Chamber of the Rwanda Tribunal of
only 1 judgement on the merits with 28 interlocutory
appeals.
8 - Letter addressed to Mr. Hans Corell, Under-Secretary-General,
The Legal Counsel, from Judge Claude Jorda,
President of the International Criminal Tribunal for the
Former Yugoslavia, dated 29 August 2000.
9 - Article 10 of the Agreement between the United Nations
and the Government endows the Special Court with a
treaty-making power “to enter into agreements with
States as may be necessary for the exercise of its
functions and for the operation of the Court”.
10 - Criteria for the choice of the seat of the Rwanda
Tribunal were drawn up by the Security Council in its
resolution 955 (1994). The Security Council decided that
the seat of the International Tribunal shall be determined
by the Council “having regard to considerations of
justice and fairness as well as administrative efficiency,
including access to witnesses, and economy”.
11 - It is important to stress that this estimate should be
regarded as an illustration of a possible scenario. Not
until the Registrar and the Prosecutor are in place will it
be possible to make detailed and precise estimates.
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