Introduction

In February 2001, No Peace Without Justice (NPWJ) hosted the "Freetown Conference on Accountability Mechanisms for Violations of International Humanitarian Law in Sierra Leone" at the Lagoonda Complex in Freetown, Sierra Leone. The result of that conference, which was attended by over 100 national and international personnel active in the fields of law, human rights and civil society, was a set of concrete recommendations adopted by the conference as a whole.

The singular message to emerge from the Conference was the need for ownership of all accountability mechanisms for and in Sierra Leone by the people of Sierra Leone. One aspect of this is that public sensitisation and education about accountability mechanisms should be undertaken by Sierra Leoneans, in order both to enhance that ownership and ensure the information is presented in the best possible way taking into account linguistic and cultural needs. In order to ensure a timely and accurate message, those people who will be implementing a public education and sensitisation program will need to be fully conversant with all aspects of the accountability mechanisms to be established in Sierra Leone. It was evident from the Conference that despite a high level of interest and general knowledge concerning the principles of criminal justice, including international criminal justice, knowledge about the specifics of the Special Court lagged far behind knowledge about the Truth and Reconciliation Commission.

In light of these factors, one of the recommendations adopted by the Conference was that a series of workshops be held aimed at raising general knowledge concerning the structure, nature and likely operations of the Special Court.
 

"Training the Trainers"
Following this recommendation and consultations with Sierra Leonean civil society and human rights organisations, NPWJ organised a number of "Training the Trainers" seminars. The purpose of the seminars was to present a detailed overview of the provisions of the draft Statute and Agreement for the Special Court, including a brief introduction to the purposes and principles of international humanitarian and criminal law. The intention was to hold a number of identical workshops over a period of days, limiting the participation within each session to ensure maximum opportunity for discussion by participants.

In some ways, the workshops were intended as a pilot scheme, both to test the level of interest as well as develop a "model seminar" which can then be replicated within Freetown as well as taken into the provinces, to ensure that the general level of knowledge concerning the Special Court is raised nation-wide.

The seminars
NPWJ held a series of ten seminars over a period of five days from 21 to 29 March 2001 at the GGEMS Offices in Freetown. The sessions attracted a total of 207 participants from a diverse range of organisations and institutions, including human rights and civil society organisations, journalists and other interested individuals. In addition, given their position of importance and respect within Sierra Leonean society, a separate session was held within that structure for 20 of the Paramount Chiefs currently residing in Freetown.

The seminars commenced with a brief introduction to international law, including international humanitarian and criminal law, given that the Special Court finds its basis within international law. The seminars went on to cover all substantive aspects of the Special Court, including personal, temporal and subject matter jurisdiction as well as issues such as penalties, rules of procedure and evidence and rights of the accused. The concluding parts of the seminar considered practical issues such as the structure of the Special Court, the serving of sentences, privileges and immunities and the financing of the Special Court.

All sessions were well attended and stimulated thought-provoking discussions concerning not only the material presented but also issues such as the timing of the Special Court, its aims and potential, its place within the peace process and its relationship to other methods of accountability, including the Truth and Reconciliation Commission and traditional forms of justice.
 

Structure of this report
This report is divided into two parts. First, it contains a detailed set of notes, based on the information presented at the seminars, outlining the various aspects of the Special Court described above. This set of notes is intended to act as a preliminary reference, since most of the issues discussed find full answers within the draft Statute and Agreement, or the Report of the Secretary-General on the establishment of a Special Court for Sierra Leone, S/2000/915, dated 4 October 2000.

The text was also prepared by reference to the following works in particular:

• Robertson, Geoffrey, Crimes Against Humanity: The Struggle for Global Justice, Penguin Books, 1999.
• Gutman, Roy and Rieff, David (eds), Crimes of War: What the Public Should Know, W. H. Norton and Company, 1999.
• International Crisis Group, Reality Demands: Documenting Violations of International Humanitarian Law in Kosovo, ICG, 2000.

The second part of this report highlights the questions being asked about the Special Court within Sierra Leone. Many of the same questions were raised at the different sessions, concerning a broad range of issues including the absence of the death penalty, whether the Special Court is intended to target the RUF or whether anybody (including heads of State) can be prosecuted before the Special Court, what is meant by "those who bear the greatest responsibility" and the situation regarding the amnesty provisions of the Lomé Peace Agreement.

Conclusion
The seminars were well attended and elicited a positive response from seminar participants. It is hoped that the information presented during the seminars will go some way towards assisting the prevention of misconceptions about the nature and operations of the Special Court from arising within Sierra Leone. NPWJ is currently planning more seminars, both within Freetown as well as in the provinces. In the meanwhile, it is hoped that the information contained in this report both consolidates the seminar presentations as well as provides timely and accurate information for those people who have been unable to attend the seminars in person.

The seminars were a success mainly due to the active participation of members of Sierra Leonean civil society and the questions raised and discussions within each session were thought provoking. Indeed, the questions will be instructive in the context of any public sensitisation and outreach program, as they indicate the areas which may require more detailed explanation. It is hoped that those involved with any outreach program concerning the Special Court take cognisance of the issues raised by participants during the seminars when formulating the content of any outreach message.
 

Outline of Seminar

Special Court – Legal Issues

1. Introduction to International Law

- The Agreement between the UN and the Government of Sierra Leone

(a)  Crimes Against Humanity (Statute Art 2)
(b)  Violations of Common Article 3 of the Geneva Conventions and Additional Protocol II
       (Statute Art 3)
(c)  Other Serious Violations of International Humanitarian Law (Statute Art 4)
(d)  Inclusion of Crimes Under Sierra Leonean Law (Statute Art 5)

8. Judgements (Statute Art 18)

9. Penalties (Statute Art 19)
 

Special Court – Practical Issues

10. Structure of the Special Court:

(a)  Trial Chamber(s) (Statute Arts 11-13, Agreement Art 2)
(b)  Appeals Chamber (Statute Arts 11-13, Agreement Art 2)
(c)  Prosecutors Office (Statute Art 15, Agreement Art 3)
(d)  Registry (Statute Art 16, Agreement Art 3)
(e)  Victims and Witnesses Unit (Statute Art 16(4))
(f)  Other Staff (UN Secretary-General’s report)

12. Enforcement of Sentences (Statute Art 22)

13. Pardon (Statute Art 23)

14. Alternative Host Country (Agreement Art 9)

15. Practical Arrangements: (UN Secretary-General’s report)

(a)  Personnel and Equipment
(b)  Premises
(c)  Expertise and Advice from ICTY and ICTR
(d)  UNAMSIL Support

16. Financial Mechanism of the Special Court (Agreement, Art 9)
 
 
 
 

Notes from the Special Court Training Seminars

1. Introduction to International Law

(a) Basis of international law
International law is intended to govern the relations between States. Therefore, if the rules of international law are broken, any available remedies generally lie between States. However, there are some provisions of international law which involve individuals either as complainants or defendants. An example of the former is the Individual Petition mechanism under the First Optional Protocol to the International Covenant on Civil and Political Rights. An example of the latter, which is discussed later, is that subset of international law known as international criminal law.

There are two major ways of making international law: treaties and customary international law. Both of these are relevant to the Special Court, as the international law forming the subject matter jurisdiction of the Special Court finds its roots in both treaty and customary law.

Treaties are basically international contracts and can be between two States (bilateral treaties); many States (multilateral treaties); or between a State and an international organisation. The Agreement to establish the Special Court is an example of the last category, as it is between Sierra Leone and the United Nations Organisation. As treaties are written down, their content is reasonably easy to ascertain.

The second category, that of customary international law, is more fluid and difficult to pin down. Customary international law consists of two elements. The first is State practice, which refers to what States do and say in an official capacity. The second element is opinio juris, which means that States act in particular way because they consider they are legally bound to act in that way. An example of State practice which does not rise to the level of customary international law is diplomatic protocol. There are rules of protocol which States follow but which do not give rise to legal action if they are broken. An example of State practice which does rise to the level of customary law is the regional example from Europe of the abolition of the death penalty. Many European States either have abolished the death penalty or are moving towards abolishing it on the basis that they are under a legal obligation to do so.

(b) International humanitarian law
One area of international law of particular concern in this instance is international humanitarian law (IHL), also referred to as "the laws of war" or "the laws of armed conflict". International humanitarian law has been around in some form since the 6^th Century BC. In the modern era, the development of the rules of IHL began in the late nineteenth and early twentieth century in an attempt to mitigate some of the consequences of the conflicts prevalent at the time. In essence, they attempted to regulate wars to prevent unnecessary suffering being inflicted upon enemy soldiers. Their further development attempted to set specific rules concerning what were and were not legitimate targets in conflict. This in itself led to a distinction between soldiers and civilians and the protection of persons not taking an active part in hostilities became a basic principle of IHL. As the nature of war changed and the number of civilian casualties increased, so too did the number of provisions extending to civilians caught up in any war. International humanitarian law begins to apply across a territory the moment armed conflict breaks out and continues to apply until there is a general cessation of hostilities.

The Geneva Conventions of 12 August 1949, and the two Additional Protocols of 8 June 1977, form the heart of international humanitarian law and are the most frequently cited sources. The 1949 Geneva Conventions codified international humanitarian law after WWII as they had by then emerged. The four Conventions concern the treatment of:
(I) sick and wounded combatants on land;
(II) sick and wounded combatants at sea;
(III) prisoners of war; and
(IV) civilians.

The Geneva Conventions marked the first inclusion in a humanitarian law treaty of a set of war crimes – the "grave breaches" of the conventions. Each of the four Conventions contains its own list of grave breaches, expanded by Additional Protocol I of 1977. Grave breaches are crimes considered so serious that all State Parties are required to prosecute persons accused of such offences, or to hand them over to other States Parties willing to conduct such prosecutions. However, the grave breaches provisions only apply in international armed conflicts and then only to acts against the protected persons (sick and wounded combatants on land and sea, POWs and civilians who find themselves in the hands of a state of which they are not nationals).

International humanitarian law draws a basic distinction between international armed conflicts, i.e. those between two or more States, and internal armed conflicts, i.e. those between a State and a non-State organised armed group. The majority of the provisions of the Geneva Conventions and the Additional Protocol I apply only to international armed conflicts. Nonetheless, article 3 of each of the Geneva Conventions (which are identical) and Additional Protocol II lay down a set of basic minimum rules and basic protections applicable in any armed conflict.

International criminal law
Within international humanitarian law is a sub-set of provisions which grouped together can be described as international criminal law. This refers to those provisions of international humanitarian law which, if broken, attract individual criminal responsibility. If these provisions are broken, an individual can be held accountable for their actions in a court of law. For example, the Geneva Conventions contain the war crime of murder. Therefore, if it can be proved that an individual has committed the act of murder in the context of conduct associated with an international armed conflict, then that individual may be convicted and punished in a court of law.

It should be emphasised that not all rules of IHL will attract individual criminal responsibility. For example, a person breaking the provision requiring that smoking be allowed in Prisoner of War camps would not be liable for prosecution in a court of law.

2. Constitutive Instrument
The Special Court finds its legal basis in an Agreement between the Government of Sierra Leone and the United Nations Organisation. The Statute of the Special Court, which sets out the jurisdiction and mechanisms of the Special Court, forms an annex to the Agreement. Therefore, unlike the International Criminal Tribunals which were formed pursuant to Security Council Resolution, the Special Court will be a treaty-based sui generis court of mixed jurisdiction and composition.

As such, the Special Court will exist outside the current hierarchy of courts in Sierra Leone, having concurrent jurisdiction with Sierra Leonean courts. Concurrent jurisdiction means that both the Special Court and Sierra Leonean courts will have jurisdiction over those acts within the subject matter jurisdiction of the Special Court. However, the Special Court will have primacy over Sierra Leone courts.

In other words, a Sierra Leone court may try someone charged with, for example, the crime of murder. However, given that the Special Court has primacy over the national courts of Sierra Leone, if the Special Court issues an indictment against that person, the Sierra Leone court must stop proceedings and transfer that person to the Special Court.

3. Subject Matter Jurisdiction
The subject matter jurisdiction refers to the crimes under international and Sierra Leonean law over which the Special Court will have jurisdiction. The crimes under international law, contained in articles 2 to 4, are considered to have character of customary international law. Their inclusion therefore does not contravene the principle of non-retroactivity, a fundamental principle of law which is also contained within the Sierra Leone Constitution.

The crimes under international law follow the statutes of the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda (ICTY and ICTR), which themselves follow article 6 of the Charter of the International Military Tribunal, also known as the Nuremberg Charter, which was the basis for the Nuremberg Tribunal established after World War II to try the 22 major Nazi war criminals. The Nuremberg Charter gave the Tribunal jurisdiction over war crimes, crimes against humanity and crimes against peace. Crimes against peace is the only one of these crimes which is not contained within the subject matter jurisdiction of the Special Court, and refers to the "planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties, agreements or assurances". The post-Nuremberg issue of the definition of crimes against peace, or the crime of aggression, has never been fully resolved and indeed still remains to be defined within the context of ongoing negotiations for the establishment of the International Criminal Court.

Articles 2-4 in the Statute of the Special Court cover the following crimes:

• Article 2: Crimes against Humanity
• Article 3: Violations of Article 3, common to Geneva Conventions and of Additional Protocol II
• Article 4: Other serious violations of IHL.

(a) Article 2: Crimes Against Humanity
Aside from the Elements of Crimes of the International Criminal Court, adopted in June 2000 by the Preparatory Commission for the establishment of an International Criminal Court, there is no single document defining Crimes Against Humanity and their legal elements. There are eleven international texts defining the crimes and they all differ slightly. Although the term originated in the preamble to the 1907 Hague Convention codifying the customary law of armed conflict, the crimes were first defined in article 6(c) of the Nuremberg Charter following the end of WWII. The category of crimes has been included in the statutes of the ICTY and ICTR and, in 1998, in the Rome Statute of the International Criminal Court.

The following elements are common to all these legal documents and can be seen in the decisions of the ICTY:

1. they refer to specific acts of violence against persons irrespective of whether these acts are committed in time of war or peace;
2. these acts must be widespread or systematic product of persecution against an identifiable group of persons, irrespective of the make up of that group or the purpose of the persecution;
3. the perpetrators of such acts must have knowledge of the wider context in which his or her acts occur.

It is worth pointing out the distinction between Crimes Against Humanity on the one hand and the crimes of Genocide and War Crimes on the other hand. While genocide may be viewed as the most heinous crime against humanity, in legal terms it is defined by the intent to "destroy in whole or in part" a national, ethnic, racial or religious group, as such. As stated, this intent to destroy is not present in Crimes Against Humanity, the crimes instead having to be committed against a given group in a series of widespread or systematic violations. Crimes Against Humanity are distinguishable from War Crimes in that they apply not only during periods of conflict but also in times of peace and war crimes do not need to be widespread or systematic.

Crimes Against Humanity are considered to constitute a non-derogable rule of international law and are subject to universal jurisdiction. By the principle of universal jurisdiction, all states are under a duty either to prosecute a perpetrator, irrespective of where the crime was committed, or extradite the perpetrator to a State willing to prosecute. States also have the duty to assist each other in securing the evidence necessary to prosecute. No individual is immune for prosecution of such crimes, even heads of State.

(b) Article 3: Violations of Article 3, common to the Geneva Conventions and of Additional Protocol II
Common article 3, the text of which is repeated in all four Geneva Conventions and is considered "a treaty in miniature", is the only part of the Geneva Conventions that applies explicitly to internal armed conflicts. It sets forth the minimum protections and standards of conduct to which the State and its armed opponents must adhere. Additional Protocol II of 1977 relating to the Protection of Victims of Non-International Armed Conflicts expands the provisions of common article 3. However, Protocol II is much less widely accepted than the Geneva Conventions themselves, with many States (including the US, Israel, France and the UK) yet to ratify.

The legal consequences of characterising conflicts as either international or internal in nature are significant as common article 3 provides only very basic protections in the event of internal conflict. Similarly, Additional Protocol II provides fewer protections during internal conflicts than those contained within the Geneva Conventions as a whole for international conflicts. Therefore, the decision to include common article 3 and Additional Protocol II within the subject-matter jurisdiction of the Special Court is of particular significance as in effect, it predetermines the 10 year conflict in Sierra Leone as having been internal in nature. It is questionable whether such a determination should indeed have been made in New York or whether it would have been better left to the Judges of the Special Court when considering the facts of individual cases.

(c) Article 4: Other Serious Violations of International Humanitarian Law
Article 4(a) concerns intentional attacks directed against civilian populations or against individual civilians not taking direct part in hostilities. The inclusion of this prohibition confirms the fundamental distinction within IHL between combatants and civilians and the absolute prohibition on directing attacks against the latter.

Article 4(b) concerns attacks against peacekeepers and those engaged in providing humanitarian assistance, following the Statute of the ICC, which first codified the prohibition, and confirms the distinction between combatants and non-combatants. The specification of this crime in no way implies a more serious crime than attacks against civilians in similar circumstances. As the report of the UN Secretary-General states, such crimes should not entail a heavier penalty than attacks against civilians.

Article 4(c) prohibiting the recruitment of children under the age of 15 was first established in Additional Protocol II, article 4(3(c)). The prohibition was included in the 1989 Convention on the Rights of the Child, article 38(3). The prohibition was criminalised in the Statute of the ICC and qualified as a war crime. The UN Secretary-General’s report asserts that there is doubt as to whether it is recognised within international customary law as a war crime entailing the individual criminal responsibility of the accused. The UN Secretary-General’s report therefore states that the crime included within the Statute of the Special Court is not on a par with that contained within the ICC Statute and defines the elements of the crime under the Statute of the Special Court as: (a) abduction, which in the case of children in Sierra Leone was the original crime and itself is a crime under common article 3; (b) forced recruitment in the most general sense; and (c) transformation of the child into a "child-combatant".

(d) Article 5: Crimes under Sierra Leonean Law
Following UN Security Council Resolution 1315 (2000), which authorised the Secretary-General to conclude the Agreement for the Special Court with the Government of Sierra Leone, article 5 of the Statute specifies the crimes under Sierra Leonean law included within the subject-matter jurisdiction of the Special Court. Those crimes included are: offences relating to the abuse of girls under the Prevention of Cruelty to Children Act, 1926; and, offences relating to the wanton destruction of property, and in particular arson, under the Malicious Damage Act, 1861. The UN Secretary-General states that the justification for the inclusion of domestic law within the subject-matter jurisdiction of the Special Court is to ensure the inclusion of crimes which are considered to be either unregulated or insufficiently regulated under international law.

Whilst it could be argued that the Sierra Leonean laws incorporated within the Statute of the Special Court are indeed reflected in existing international customary law, a serious concern regarding the Lomé Amnesty surrounds their inclusion. The Lomé Amnesty would be applicable to crimes under domestic law, therefore prosecution under article 5 would only be possible for crimes committed after 7 July 1999.

4. Temporal Jurisdiction
(a) Position of the Lomé Amnesty
The United Nations has consistently maintained that amnesty can not be granted in respect of crimes under international law. When the Special Representative of the UN Secretary-General signed the Lomé Peace Agreement, he entered a reservation on behalf of the UN stating that the amnesty provision would not apply to the international crimes of genocide, crimes against humanity, war crimes and other serious violations of IHL. This reservation was recalled by the Security Council in a preambular paragraph of Resolution 1315 (2000). Therefore, the Lomé Amnesty is not applicable to crimes under international law. This position is confirmed in article 10 of the Statute of the Special Court. However, it is worth noting that the amnesty remains applicable to crimes under Sierra Leonean law, contained in article 5, which is also reflected in article 10 of the Statute.

(b) Start date for temporal jurisdiction
Given that the Lomé Amnesty does not bar the prosecution of an individual for crimes under international law, the Special Court would not be limited to hearing cases involving acts committed after 7 July 1999. In determining what start date the Special Court should have, the UN Secretary-General referred to 3 considerations:

Three alternate dates were therefore considered:
                    (i) 30 November 1996, with the signing of the Abidjan Peace Agreement;

This decision, when combined with the application of the Lomé Amnesty to crimes under Sierra Leonean law, means in effect that the starting date of temporal jurisdiction of the Special Court would vary according to the nature of the crime under investigation: 30 November 1996 for crimes under Articles 2-4; and 7 July 1999 for crimes under Article 5.

(c) End date for temporal jurisdiction

The temporal jurisdiction of the Special Court is left open ended within the Statute of the Special Court, since there cannot be said to have been a general cessation of hostilities. The life span of the Special Court therefore remains to be determined by the parties in a subsequent agreement. This will be based on a number of considerations:

1. a subsequent agreement between the parties upon the completion of the Special Court’s judicial activities;
2. an indication of the increased capacity of the Sierra Leonean courts to assume prosecution of the remaining cases; or
3. the unavailability of resources.

5. Personal Jurisdiction
(a) Personal jurisdiction of the Special Court
Security Council Resolution 1315 (2000) states that the Special Court should have jurisdiction over those with the "greatest responsibility" for crimes committed within Sierra Leone. This was understood as a limitation on the number of accused according to their command authority and the gravity and scale of crimes committed. The UN Secretary-General’s report recommended this be altered to "those most responsible" in order to widen the potential pool of defendants before the Special Court. However, the Security Council refused to accept this change, preferring instead to remain consistent with the wording of Resolution 1315 (2000). Therefore, the current draft Statute article 1 retains the wording of "those who bear the greatest responsibility". It should be emphasised that article 1 contains no other limitations on personal jurisdiction, in particular it does not limit jurisdiction based on nationality, political affiliation or official position.

It is worth noting that article 1 specifically refers to the ability of the Special Court to try peacekeepers who otherwise satisfy the requirements of the personal jurisdiction. Article 1 basically replicates what is found in most Status of Forces Agreements, which are agreements made between troop-contributing and troop-receiving States. According to those agreements, the primary responsibility for prosecuting peacekeepers for crimes committed on the territory of the recipient State remains with the sending State. Under this principle, Canadian peacekeepers accused of committing crimes in Somalia were tried in Canadian courts. Article 1 contains an exception to this principle, whereby it may be possible to try peacekeepers before the Special Court if the sending State is unwilling or unable genuinely to investigate or prosecute peacekeepers for crimes committed in Sierra Leone. The Special Court may hear such cases upon receiving authorisation from the Security Council, which will act on the proposal of any State.

(b) Individual criminal responsibility and command responsibility
Article 6 of the Statute states that any person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in articles 2 to 4 shall be individually responsible for the crime. Criminal responsibility for the crimes contained in article 5, namely those under Sierra Leonean law, falls to be determined by the relevant laws of Sierra Leone. It should be noted that the fact that the accused was acting under the orders of a Government or superior does not relieve the individual of his or her criminal responsibility, although – according to general principles of law as well as the Statute– it may be taken into account in mitigation of sentence.

The laws of war also impose what is known as "command responsibility", referring to the principle by which a superior will be responsible for the acts of troops under his or her control. This responsibility will be imposed in two situations. First, where the superior knew or ought to have known the acts were about to be committed or were being committed and did nothing to stop their commission. Second, where the superior knew that such acts had been committed and failed to punish the commission of those acts. It is worth emphasising that the principle of command responsibility does not limit or abolish the individual criminal responsibility of the subordinates for the acts they have committed.

(c) Individual criminal responsibility at 15
Article 7 of the Statute of the Special Court states that no person under the age of 15 at the time of the alleged commission of the crimes may be tried before the Special Court. If a person aged between 15 and 18 comes before the Special Court, the procedures to be applied will take into account all relevant international human rights standards, particularly the rights of the child. Consideration shall also be made of his or her rehabilitation and reintegration into society. Article 15(5) of the Statute recommends that the Prosecutor take heed of the Truth and Reconciliation Commission (TRC) process when considering juveniles and also the need for staff of Special Court to include those experienced with juvenile justice issues. Under article 19(1), no juvenile offender will face imprisonment even if found guilty of a crime under the Special Court’s statute. Instead, article 7 itself sets out a range of sentencing options the Special Court is to have regard to when imposing a sentence on a juvenile offender convicted of a crime before the Special Court.

6. Rights Of The Accused
Article 17 of the Statute sets out the rights of the accused. These rights follow internationally established standards and also correspond to those contained within the Constitution of Sierra Leone, particularly section 23. They include rights such as the presumption of innocence, the right to legal assistance including free legal assistance if necessary and the right to remain silent.

Article 9 of the Statute concerns the principle of non bis in idem, which in essence is the principle of double jeopardy and states that a person should not be tried twice for the same crime. Thus article 9 states that a person may not be tried by Sierra Leone courts for acts for which he or she has already been tried by the Special Court. Similarly, a person may not be tried by the Special Court for acts for which he or she has already been tried by another court, with two important exceptions under which the Special Court may exercise jurisdiction over a person who has already faced prosecution before a national court. First, if the act was characterised as an "ordinary crime"; for example where a person has been tried for the crime of murder rather than the crime against humanity of murder. The second set of exceptions concerns the conduct of the domestic trial, namely where that trial was not impartial or independent, was designed to shield the accused from international criminal responsibility, or the case was not diligently prosecuted. In either of those two circumstances, the fact that a person has already been prosecuted in front of national courts will not bar the prosecution of that person before the Special Court.

7. Rules Of Procedure And Evidence
Given the applicability of two systems of law and the inevitable difference in the elements of crimes under both international and national law, article 14 states that the Rules of Procedure and Evidence of the ICTR will be applicable mutatis mutandis for the Special Court. The phrase "mutatis mutandis" refers to altering the rules to apply to the relevant circumstances; for example, where the Rules of Procedure and Evidence for the ICTR state "Rwanda", the Rules as applicable to the Special Court will read "Sierra Leone". Under article 14, the Judges have the authority to amend or adopt additional rules where a situation is not provided for. In such circumstances, the Judges may be guided by the Criminal Procedure Act, 1965 (Sierra Leone). In this way, article 14 is intended to reflect the hybrid nature of the Special Court, namely the blend between national and international law.

8. Judgements
Judgements are to be rendered by a majority of the Judges of the Trial Chambers or of the Appeals Chamber. They are to be delivered in public and accompanied by a reasoned opinion in writing, including separate and dissenting opinions. It is worth noting in this regard that the Special Court makes no provision for trial by jury. Instead, the cases will be heard and decided by the bench of the Trial Chamber.

9. Penalties
Article 19 limits the penalties which may be imposed by the Special Court upon convicted persons to imprisonment and forfeiture of property, proceeds and any assets acquired unlawfully or by criminal conduct. In imposing sentences, the Special Court is to have regard to the sentencing practices of Sierra Leone courts as well as the ICTR. Any property, proceeds or assets recovered are to be returned either to their rightful owner or to the State of Sierra Leone.

It is worth noting in this regard that while the Special Court may have regard to the sentencing practices of the national courts of Sierra Leone, it will not be empowered to impose the death sentence under any circumstances.

10. Structure Of Special Court
(a) Trial Chamber(s)
The Special Court will commence with one Trial Chamber composed of three judges: two international judges and one judge appointed by the Government of Sierra Leone. The two international judges shall be appointed by the UN Secretary-General from those people nominated by States, particularly member States of ECOWAS and the Commonwealth. It should be noted that the judge to be appointed by the Government of Sierra Leone does not have to be a Sierra Leonean national. The Trial Chamber is to have an alternate judge, to be ready to sit in the event that one of the three trial judges is unable to do so. There is provision in the Statute for the establishment of a second Trial Chamber, which may only be established 6 months after the establishment of the Special Court and then only on the request of the UN Secretary-General, the Prosecutor or the President of the Special Court. If a second Trial Chamber is established, it will be composed along identical lines as the first Trial Chamber. All judges are to be appointed for 4 year terms. According to the UN Secretary-General’s report, the Trials Chamber are each to have 1 law clerk, 2 support staff per Chamber and 1 security officer detailed to each judge.

(b) Appeals Chamber
The Special Court will have one Appeals Chamber, comprised of five judges: three appointed by the UN Secretary-General and two appointed by the Government of Sierra Leone. As with the Trial Chamber, there is provision for the appointment of an alternate judge. The Presiding Judge of Appeals Chamber will be the President of Special Court. According to the UN Secretary-General’s report, the Appeals Chamber is to have 1 law clerk, 2 support staff and 1 security officer per judge. The Appeals Chamber may hear appeals from persons convicted by the Trial Chamber or from the Prosecutor for the following: a procedural error; an error on a question of law invalidating the decision; and an error of fact which has created a miscarriage of justice. In disposing of the appeal, the Appeals Chamber may affirm, reverse or revise Trial Chamber decisions.

Security Council Resolution 1315 (2000) requested that the Secretary General consider whether the Special Court should share the Appeals Chamber of the ICTY and ICTR. It was considered that this would reduce the operating costs of the Special Court as well as ensure consistency in the international jurisprudence concerning crimes under international law. After consultation with ICTY, this suggestion was dismissed on practical grounds. There are currently three Trial Chambers in the ICTY and three Trial Chambers in the ICTR and appeals from these six trial chambers are already straining the Appeals Chamber. It was considered that to add another one or two trial chambers would overload the Appeals Chamber to such an extent that it would become unable to function effectively and efficiently.

(c) Prosecutors Office
The Prosecutor is to investigate and prosecute "those who bear the greatest responsibility" for the commission of crimes within the jurisdiction of the Special Court. The Prosecutor is to be appointed by the UN Secretary-General after consultation with the Government of Sierra Leone. The Prosecutor is to be assisted by a Sierra Leonean Deputy Prosecutor, who will be appointed by the Government of Sierra Leone after consultation with UN Secretary-General and Prosecutor. Both have to be of the highest "moral character and possess the highest level of professional competence and extensive experience in the conduct of investigations and prosecutions of criminal cases". Both shall be independent and shall not "accept nor seek" instructions from any Government or any other source. The Prosecutor’s Office is to be staffed by Sierra Leoneans and internationals, who should have overall experience in relation to gender-related crimes and juvenile justice. The UN Secretary-General’s report estimates that the Prosecutor’s Office will require 20 investigators, 20 prosecutors and 26 support staff.

(d) Registry
The Registry is intended to service the Chambers and Office of the Prosecutor, with responsibility for financial management and the external relations of the Special Court. The Registrar is to be appointed by the UN Secretary-General after consultation with the President of the Special Court. The Registrar is to be appointed as a staff member of UN, although he or she does not need to be drawn from the current ranks of the UN. The UN Secretary-General’s report foresees a Deputy Registrar, 27 admin support staff and 40 security officers.

(e) Victims and Witnesses Unit
Within the Registry, there is to be a Victims and Witnesses Unit. The Victims and Witnesses Unit is charged with providing -- in consultation with Office of Prosecutor, protective measures -- security arrangements, counselling and other appropriate assistance for witnesses and victims appearing before the Special Court. The Unit personnel are to include experts in trauma, including trauma related to crimes of sexual violence and violence against children. The UN Secretary-General’s report foresees there being four staff members within the Victim and Witnesses Unit.

(f) Other staff
Finally, the UN Secretary-General’s report foresees that in terms of additional staff, there will be one corrections officer and twelve security officers in the detention facilities.

11. Privileges And Immunities
Article 11 of the Agreement states that the Judges, Prosecutor and the Registrar, together with their families shall enjoy the privileges and immunities, exemptions and facilities accorded to diplomatic agents in accordance with the 1961 Vienna Convention on Diplomatic Relations. These shall include:

• immunity from arrest or detention;
• immunity from criminal, civil and administrative jurisdiction;
• inviolability for all papers and documents;
• exemption from immigration restrictions;
• immunity in respect of personal baggage as accorded diplomats pursuant to the Vienna Convention;
• exemption from taxation in Sierra Leone on salaries, emoluments and allowances.

Article 12 provides that Sierra Leonean and international personal of the Special Court shall be accorded:

• immunity from legal process in respect of words spoken or written and all acts performed by them in their official capacity, even after termination of employment with the Special Court;
• exemption from taxation on salaries, allowances and emoluments.

• immunity from immigration matters;
• exemption from duties and taxes on the import of furniture and effects to Sierra Leone.

Article 13 of the Agreement provides that Counsel of a suspect or accused shall be accorded the following privileges:

• immunity from arrest or detention and from seizure of personal baggage;
• immunity from criminal or civil jurisdiction in respect of words written or spoken and acts performed in capacity as counsel;
• immunity from immigration restrictions during his or her stay as well as during his or her journey to the Special Court and back.

12. Enforcement Of Sentences
Article 22 of the Statute contains the presumption that sentences will be served in Sierra Leone, while allowing for the possibility of serving sentences in third States. In either case, the State where the sentence is to be served is to be bound by the duration of the sentence imposed by the Special Court. In addition, the sentences are to be served subject to the supervision of the Special Court.

The serving of sentences in a third State would be based on an agreement between the Special Court and the individual country concerned. The report of the UN Secretary-General recommends that the Special Court enter into agreements with those countries which already have similar agreements with ICTY and ICTR. The Government of Sierra Leone has expressed the preference that if any sentences are to be served outside Sierra Leone, they should be served within a West African State.

13. Pardon
As noted, the State where the sentence is to be served is bound by the duration of the sentence imposed by the Special Court. Nonetheless, if the applicable law in the country where person is jailed permits pardons or commutation of sentences, the State concerned shall notify the Special Court of that fact. Pardon or commutation of sentence shall only be granted if the President of Special Court, in consultation with the Judges, so decides on the basis of interest of justice and general principles of law.

14. Alternative Host Country
The presumption in article 9 of the Agreement is that the Special Court will sit in Sierra Leone. The question of an alternate host country is to be addressed in stages:

15. Practical Arrangements
The UN Secretary-General’s report estimates that the initial cost for personnel and equipment for the first year of operations of the Special Court will be $22 million. Given that Sierra Leone has a common law legal system, the UN Office of Legal Affairs has approached the Commonwealth Secretariat to identify suitable personnel. A similar request will be made to ECOWAS.

In terms of the premises for the Special Court, the locations suggested by the Government of Sierra Leone were rejected by the OLA team during their assessment visit to Freetown at the end of 2000. The three potential locations suggested by the Government of Sierra Leone were the High Court, the Miatta Conference Centre and an adjacent hotel, and the Presidential Lodge. The report of the UN Secretary-General recommends the construction of a new, prefabricated building at a cost of $2.9 million. Similarly, regarding potential detention facilities, the Central Pademba Road Prison was ruled out for lack of space and security reasons but the New England Prison could be a possible option, with necessary renovations estimated at $600,000.

Both the ICTY and the ICTR have indicated their willingness to share their expertise with personnel of the Special Court. This would cover the provision of materials and training, including the temporary deployment of staff to the Special Court, including a librarian. ICTY has stated its intention to send CD-ROMs containing motions, decisions, judgements and court orders to facilitate the work of the Special Court.

Under the Agreement, UNAMSIL is to provide security in the Special Court’s initial phase, as well as financial and communications support. In addition, UNAMSIL should provide temporary office space at UNAMSIL HQ to house the Office of the Prosecutor whilst suitable premises are being constructed.

16. Financial Mechanism Of The Special Court
Security Council Resolution 1315 (2000) requested the UN Secretary-General to recommend the amount of voluntary contributions, including funds, equipment and expert personnel, which may be needed from States, intergovernmental and non-governmental organisations to make the Special Court operational. This insistence on "voluntary contributions" indicated the Security Council reluctance for the Special Court to be financed through the UN’s assessed contributions, namely through its regular budget. Whilst funding through the regular budget would ensure the finances required for the Special Court to be established and continue its operations, it would transform the Special Court into another official UN organ, similar to the ICTY and ICTR. Given the hybrid nature of the Special Court and its basis in the Agreement between the Government of Sierra Leone and the UN, this would not be possible.

The UN Secretary-General points out that basing the financial mechanism on voluntary contributions would not provide the assured funding such an institution requires. Failure to guarantee sufficient voluntary contributions to establish the Special Court and assure its operations would not only damage the credibility of the UN. In addition, given the raised expectations within Sierra Leone created by discussions around the establishment of the body, failure to establish the Special Court could endanger the national process of reconciliation and the restoration and maintenance of peace in the country by again failing to curtail the culture of impunity which has existed throughout the period of the conflict.

For such reasons the UN Secretary-General requested that the Security Council reconsider the prospect of financing the Special Court through assessed contributions. This position was subsequently rejected by the Security Council, who continue to seek voluntary contributions from Member States to help establish the Special Court.
 

Questions and issues raised during the seminars

Timing and Sequencing of Special Court

• Has the Special Court been set up yet? Why is it taking so long?
• Will the Special Court be established during or after the war?
• If the Nuremberg Tribunal was established after WWII, should not the Special Court also be established only after the end of the conflict in Sierra Leone?
• What is the time frame for the implementation of the Special Court?
• Should the Special Court and TRC be established simultaneously or should one follow the other?
• Is the Special Court appropriate now?

• How long will it take for the Special Court to complete its purpose?

• How will the Special Court interact with other agencies and bodies already established within Sierra Leone, such as the DDR, NCRRR and NCDHR?
• What is the relationship between the Special Court and the TRC and other bodies and processes such as the DDR process?

• Will the Special Court reinforce the TRC process?

• What will the SC do to people who have committed crimes?
• Will the penalties be limited to imprisonment and forfeiture?

• Why will the Special Court not have the death penalty, given it used in the USA?

• What penalties will the Special Court have to impose on children found guilty of crimes?

• What penalties will the Special Court apply towards children? If they are not to be sent to prisons, will they be sent to juvenile prisons?
• The Special Court will be diminished by its lack power to impose the death penalty, as in Sierra Leone this is viewed as being central to the concept of justice. Similarly, the conditions of detention, whether in Sierra Leone or in another country, will alienate people from the Special Court as those living conditions will be much higher than those faced by the majority of Sierra Leoneans. Is this fair?
• Where will people be imprisoned?

• The prisons within Sierra Leone are not secure, with a history of jail breaks, so people should not serve their sentences in Sierra Leone.
• If a maximum security prison is to be built, should it not be built on an island?
• Will the Special Court manage to have a deterrent effect? For it to be successful should the punishment not correspond to the nature of the crimes?
• What is the essence of the penalty of forfeiture? Will any property or funds forfeited be used to improve the living standards of war victims, especially the amputees and internally displaced persons?

• What benefit will the victims derive from the penalty of forfeiture? Will the proceeds go directly to compensating the war victims?

• If the Special Court has the power of forfeiture of stolen property, if that property no longer exists, will it have the power to demand the payment of a fine for an equivalent amount?

• What are the differences in the penalties which can be imposed by the Special Court in comparison to Sierra Leonean courts?

• Will the Trial Chamber take into consideration the length of time the defendant has spent in custody prior to the trial?
• What length of jail sentences will those found guilty before the Special Court have to serve?

• What is the relationship between international law and Sierra Leonean law concerning penalties?

• Are there going to be any sentences of hard labour?

• If there is a change of Government, what will be the fate of the Special Court?
• What if there was a change of Government after the establishment of the Special Court? What if the new President wanted to grant pardons to those convicted by the Court and to refuse to continue co-operating with the Court?

• Is there a mixture of laws, international and domestic, within the Special Court?

• Who are the protected persons in the eyes of the Special Court?

• There needs to be a campaign of education in Sierra Leone on international humanitarian law in general, but also specifically targeting the SL legal profession. ICRC, although responsible for such a campaign, does not do this among the general public.
• What are the elements of the crime against humanity of forceful sex?

• Why has the conflict in Sierra Leone been classified as internal? What about those individuals from outside of Sierra Leone who have responsibility for the conflict?

• What are the differences between international and domestic law?

• If there is a distinction within international humanitarian law between combatants and civilians, what will happen to those civilians who are responsible for crimes committed during the conflict?

• If crimes against humanity can also be committed in times of peace, why can not the Special Court look at crimes committed before the onset of the conflict?
• Are only those found guilty of committing serious war crimes after the Lomé peace agreement to appear before the Special Court?
• What is the time frame of the temporal jurisdiction?
• Why the exclusion of 23 March 1991 in the dates of gross violations of human rights?
• What is to be done concerning crimes committed prior to the signing of the Abidjan peace agreement?
• What will be the fate of perpetrators of crimes committed before the Lomé agreement?
• Is there any possibility of the starting date of 30 November 1996 being changed to 23 March 1991?

• Why has the personal jurisdiction been set at 15 years of age?

• What will be the fate of children under the age of 18 who bear the greatest responsibility?
• What will happen to children under the age of 15 when they committed crimes but who are adults at the time the Special Court is established?

• What is the Special Court intending to do with children under the age of 15 who committed serious crimes?

• What will happen to child-commanders?

• What is the maximum penalty for children under the age of 14?
• If a 14 year old boy in USA can be sentenced for life for murder, why should a child combatant of the same age not be prosecuted by the Special Court?

• How will the Special Court be able to establish the exact age of those brought before it?

• Will ECOMOG troops who served in Sierra Leone be brought before the Special Court?
• Will those people who abducted and killed the peacekeepers in May 2000 appear before the Special Court?
• Who will be targeted by the Special Court: the RUF alone or the other fighting forces on the Government side?
• Is the President liable to appear before the Special Court if indicted?
• Is Foday Sankoh likely to face the Special Court?
• Are Government ministers likely to appear before the Special Court?
• Will the Special Court have the mandate to prosecute non-Sierra Leoneans?

• What will be the fate of the educated elite living abroad who are Sierra Leoneans and supporting the war financially?

• Would foreign peacekeepers be tried by the Special Court if indicted for crimes committed during peacekeeping missions?

• What will happen to ex-combatants who committed crimes during the AFRC regime but are now members of the Sierra Leonean Army?

• What about those outside of Sierra Leone who are responsible for the war. Will they face the Special Court?

• Are civilians responsible for committing crimes liable for prosecution?
• Are any members of the Government likely to be prosecuted by the Court?

• Would members of UNAMSIL responsible for crimes in the country be likely to face prosecution before the Special Court?

• Is the Lomé Amnesty applicable to international humanitarian law?

• Is the RUF aware of the UN reservation to the Lomé Amnesty?
• The public needs to be informed about the reservation to Lomé Amnesty by the representative of the UN Secretary General.
• What are the limitations of the Lomé Amnesty with regard to Sierra Leonean laws?

• What will the Special Court do regarding the amnesty for domestic crimes?

• If the seat of the Special Court moves to a third State, what security will be provided for witnesses?

• Could the State to which people have fled try those people for the crimes contained in the Special Court’s Statute?
• How will the Special Court get to try those individuals who have fled Sierra Leone? If ICTY indictees from Bosnia managed to find safety in Yugoslavia and not be transferred to the Tribunal, the same thing may happen here regarding neighbouring regional countries.
• If peacekeepers are to be tried by the Special Court, how will they be brought over to Sierra Leone? What will happen if the State concerned refuses to comply?

• Will there be any extradition of foreign war criminals to the Special Court if indicted?
• Are there any provisions within the Statute of the Special Court concerning the extradition of those responsible for committing serious crimes against humanity within Sierra Leone but who are outside of the country?

• If an accused person deliberately flees Sierra Leone to avoid appearing before the Special Court, and the State, where he or she is refuses to extradite, what would the Special Court do to ensure that person appears before it?

• Will the Special Court be mobile or will it only operate in Freetown?
• What are the qualifications necessary for the position of Registrar? Will the Registrar be a Sierra Leonean or a foreigner?
• Who will be in charge of the funds of the Special Court?
• What will the basis of prosecution be, in terms of evidence, as there was no one during the course of the war taking evidence?
• Will the Special Court have its own prison or will they just be using the Pademba Road Prison?

• Will the evidence collected for the Special Court all be kept secret or will it be made public?

• How will the Special Court determine whether to deal with cases in secret or not?
• If someone before the Special Court pretends to be crazy, what steps will the Court take to establish whether or not this is true?
• Is it advisable to import the rules of from the Rwandan Tribunal given that the Rwandan legal system is completely different from the Sierra Leonean one?

• How will people appear before the Special Court?

• Will the Special Court have measures to deal with false evidence?
• Would witnesses be able to give evidence and appear before the Special Court anonymously if they did not wish to be identified?
• Would the judges of the Special Court be impartial?

• Has any country offered to act as an alternative host state for the Special Court?

• Will the Special Court be higher than Sierra Leonean courts?
• Will the national courts be able to try those accused of these same crimes?
• What are the differences between international law and humanitarian law, and which one is more applicable in the Sierra Leone conflict?
• Will international humanitarian law have to be implemented domestically to ensure that it complies with the Constitution?
• Will there be any trials for crimes committed under international humanitarian law after the end of the Special Court?
• Will the Special Court have the power to overrule domestic courts?

• How will methods of traditional justice fit with the Special Court?

• In the case of pardons, should not the President of Sierra Leone be consulted as well?

• Will there be any security provided for witnesses?

• If UNAMSIL are to provide security for the Special Court, will that require an expansion of their mandate?
• How will the security of children who come before the TRC be ensured?
• Will the detention facilities be monitored? If so, by whom?

• Will security be provided to ensure there are no physical threats?
• Would it be possible for the Special Court to have security provided by someone other than UNAMSIL?

• Will UNAMSIL be placed in a better position to ensure that it can provide the security required by the Special Court?

• Will there be any security provided for those engaged in the sensitisation programme?

• What kind of security will be provided for the Special Court? Will the security officers be armed?

• What is the estimated cost of the Special Court?

• How are the Tribunals for Rwanda and the former Yugoslavia funded?

• What will be the financial contribution of the Sierra Leone Government towards the setting up of the Special Court?
• Have any financial pledges been made already to support the Special Court?

• What if people are found guilty of crimes before the Special Court yet do not feel any remorse for the crimes they have committed?
• How will the Special Court help the process of reconciliation in Sierra Leone? Should we not move forward and leave the conflict behind us?
• Will information regarding the Special Court be sent into rebel held territories too?
• What is the role of the UN in countries experiencing conflicts?
• What is the difference between the Special Court’s Statute and Agreement?
• What will happen to former combatants who have committed crimes but have since disarmed and are now fully reintegrated into Sierra Leonean society?
• How successful have the Rwandan and Yugoslav Tribunals been?
• Why does nobody consider creating a mechanism to prevent people from committing crimes rather than a mechanism to try them after the crimes have been committed?
• If the judges are to be selected and appointed by the Government of Sierra Leone and the UN Secretary General, without consulting the RUF, can the Special Court really be expected to administer justice impartially?
• Who will fund the defendants’ legal representation?
• Who is going to bring prosecutions? Will the Sierra Leonean Government be able to bring prosecutions?
• Why is the Rwandan Tribunal taking so long to prosecute people?
• Will the Special Court remain in Sierra Leone forever or is it just being established for this purpose?
• Will all defendants have access to a lawyer?
• Will people have the right to appeal if convicted by the Special Court?
• Will army members face court martial if the Special Court does not prosecute them?