Summary
On the fourth day of the proceedings of the Appeals Chamber, there was an overall improvement in the performance of the participants.  The Registry continued to do an excellent job with court management issues.  Counsel, for the most part, performed at a high level of competence, but there remained some lapses in preparation.  The judges appeared to be more comfortable in their roles, and perhaps as a consequence, they exhibited greater civility in their interactions with counsel.  Some questions, however, raised questions about preparation.  There also continued to be a tendency to lecture counsel or to make arguments from the bench.

Proceedings
Before the proceedings began, Brima Bazzy Kamara, wearing a white gown and white trousers, was escorted by Special Court security officers into the crowded courtroom and was seated at a table at the rear of the section for counsel.  Upon entering the courtroom, he discreetly waived to persons seated in the gallery and took his seat.

* Prosecutor v Norman; Prosecutor v Kallon; Prosecutor v Gbao: Applications for Stay of Proceedings based on the Denial of the Right to Appeal
After the Judges entered the courtroom, Judge Robertson immediately announced that the Court had reached a decision on the applications for a stay of proceedings based on the denial of the right to appeal.  He then commenced reading the decision, which denied the application for a stay and ruled on the underlying substantive motion, holding that Rule 72 shall stand as a lawful rule of procedure.  A copy of the decision (signed by Judges Ayoola, King, Robertson and Winter) is appended to this report.  In addition, Judge King provided a separate opinion, a copy of which is also appended to this report.  (http://www.specialcourt.org/documents/WhatHappening/index1.htm)

* Prosecutor v Kallon; Prosecutor v Fofana; Motion on Lack of Jurisdiction/Abuse of Process: Amnesty Provided by Lome Accord
Submission by Michiel Pestman for the Defence

Mr Pestman began by asserting the international force of Lome Accord.  He acknowledged, however, that a blanket amnesty covering all international crimes is not allowed.  For example, there cannot be amnesty for genocide.

Judge Robertson interrupted and noted the example of the offer of amnesty to Saddam Hussein.

Judge Ayoola subsequently asked for a summary of Mr Pestman’s position, and Judge Robertson asked particularly about the issue of abuse of process regarding amnesty.

Mr Pestman began to respond by stating that he thinks the amnesty still stands.

Judge Ayoola then queried whether Mr Pestman wanted to proceed on the assumption that the Lome Accord is a treaty, and asked what the effect would be.

Mr Pestman said that the Lome Accord is not a treaty, but an international agreement.  The reason for this distinction is that one party is not a state.

Judge Robertson queried whether a criminal organization could be a party to an international agreement.

Mr Pestman said “yes”.

Mr Pestman said that there are five reasons that the Lome Accord is an international agreement. First, the additional signers make the accord into an international agreement.  Second, the fact that States are the additional signers makes the accord into an international agreement.

Judge Ayoola interrupted Mr Pestman and inquired who are the moral guarantors.

Judge Robertson responded with an explanation of what the term means.

Mr Pestman then resumed, stating that the third reason that the Lome Accord is an international agreement is that the involvement of the UN makes the accord into an international agreement.  The fourth reason is that the accord was ratified by the Sierra Leone Parliament.  Mr Pestman said that he assumed that only international agreements required ratification.  The fifth reason is that the co-signers are subjects of international law.

Judge Robertson noted that there is no evidence of a process of deliberation, and queried, if there was a contractual bond between the UN and the RUF, and the RUF continued fighting, would the contract end?

Mr Pestman stated that such situation could be a fundamental breach that could be invoked.

Judge Robertson asked whether this was invoked by the establishment of the Special Court.

Mr Pestman responded that he was not entirely familiar with the document.

He then returned to the issue of amnesties generally, and stated that there is no provision of international law that forbids amnesties for crimes against humanity.

Judge Ayoola asked whether a crime against humanity is a peremptory norm.

Judge Robertson then asked if the accord is an international agreement, and there is a contractual bond with the UN, and there is no invocation to negative the agreement, what is step four?

Mr Pestman responded that there is some role for the Sierra Leone Government.

Judge Ayoola then interrupted and asked again whether, if one cannot derogate from a peremptory norm, in which case this debate doesn’t matter.

Mr Pestman stated that the Special Court Agreement should not be applied so far as to derogate from the Lome Accord.

Judge King then asked Mr Pestman if he was aware of the UN’s reservation regarding the accord.

Judge Robertson asked further what it does to the argument if there is such reservation.

* Prosecutor v Kamara: Application in respect of Jurisdiction and Defects in the Indictment
Submission by Ken Fleming QC for the Defence

Judge Robertson first asked Mr Fleming to set forth his submissions.

Mr Fleming stated that he is making submissions on behalf of Mr Kamara regarding: (1) the indictment, (2) good faith, (3) Article 10 of the Special Court Statute regarding the Lome Agreement, and (4) the nature of the Court.

With respect to the first submission, Mr Fleming said that one would not gather that charges of post-Lome conduct were part of the indictment because of the lack of charges with any particularity.

Judge Robertson responded by pointing to item 12, which he said set forth general allegations regarding the Lome Accord and continuing active hostilities.

With respect to the second submission, Mr Fleming said that the issue is one of good faith or estoppel, and he continued, stating that clean hands do not enter into it at all in some circumstances, and cited the example of a coerced confession.  He further stated that this is a form of an abuse of process argument.

Regarding the Lome Accord, Mr Fleming pointed to the preamble, which he said sets out the state of mind of the parties.  He noted that the Lome Accord had been ratified pursuant to an Act of the Sierra Leone Parliament, and that there is no reservation contained in the agreement legislated into force.  He also stated that where the Lome Accord was subscribed - or rather, if it was subscribed - it was an expression of opinion by one party.  Mr Fleming further stated that he accepted that entities such as the United Nations are “moral guarantors” with respect to the agreement.

As Mr Fleming continued discussing the preamble of the Lome Accord, Judge Robertson interrupted and queried whether the Accord is a surrender document.

In response, Mr Fleming said, “no”.  He said that it was agreed that for all to participate in a democratic process all must put down arms and there must be an amnesty.  He also stated that these terms inure to the benefit of individuals.

Judge Robertson asked Mr Fleming, with regard to any individual benefit, whether he wished to assert this at trial, and Mr Fleming responded, “yes”.

Judge Ayoola then asserted that, if the argument is along those lines, the issue is for trial.

Mr Fleming conceded that that is the case.

Judge Ayoola then replied by asking Mr Fleming to confine his presentation to issues of law.

Mr Fleming said that there is an issue of law, and that is whether his client may be a beneficiary of Lome, and whether he would be entitled to run this as a defence.

Mr Fleming subsequently continued, noting Articles 24, 25 and 26 of the Lome Accord.  In particular, he noted that the Truth and Reconciliation Commission should be established under Article 26, and that that was the mechanism for dealing with human rights violations.

Mr Fleming also said that he has to concede that if one continued to fight he would have no business arguing to the contrary with respect to the amnesty.

Judge Robertson then asked if the amnesty of 1996 has any relevance.

In response, Mr Fleming said that he had not looked at it.

Mr Fleming next began a brief introduction to his third submission regarding Article 10 of the Special Court Statute.

Judge King interrupted Mr Fleming and asked what he meant in this argument when referring to discretion on the part of the Court.

Mr Fleming stated that all courts have discretion to review for abuse of process.

Finally, regarding the fourth submission, which is with respect to the nature of the Court, Mr Fleming noted that the Special Court was set up pursuant to an Agreement.  Ms Orentlicher, he said, had suggested that the issue of the amnesty had crystallized.  But he questioned the relevance of such suggestion, querying in whose bosom the amnesty had crystallized, and asserted that no one can tell us.

Judge Robertson said that that is the case with all such propositions.

In response, Mr Fleming recalled Judge Robertson’s example of an offer of amnesty by the USA, UK and Australia in a situation in which others say that it should not apply.  Mr Fleming then suggested that you must look at the circumstances in which the amnesty is given.  If it is by a dictator, it is not binding.  If it is by a process, then it is binding.

Judge Robertson replied by asking what Mr Fleming would say about an amnesty for the common soldier but not for those who bear the greatest responsibility.

Mr Fleming said that one must go back to the dictator versus process distinction.

Judge Robertson again set forth the possibility of an offer of amnesty to Saddam Hussein.  Expanding upon this hypothetical scenario, he queried what would happen if Mr Hussein were to accept such amnesty but go to Belgium, where he might be accused and put on trial for genocide and torture.  Judge Robertson then asked about Mr Fleming’s argument in that context.

Mr Fleming acknowledged an exception with respect to genocide and also said that the issue of torture troubled him.

Judge Winter asked how one interprets this argument consistent with international humanitarian law.

Mr Fleming said that the parties were well aware of what were the breaches of international humanitarian law.

Judge Ayoola then asked if Mr Fleming’s submission is that the amnesty is not a derogation.

Mr Fleming said “yes”.  He continued stating that amnesties are always there and that there always are competing interests.

* Prosecutor v Kallon; Prosecutor v. Fofana: Motion on Lack of Jurisdiction/Abuse of Process:  Amnesty Provided by Lome Accord
* Prosecutor v Kamara: Application in respect of Jurisdiction and Defects in the Indictment
Submission by Deputy Prosecutor Desmond de Silva QC for the Prosecution

On beginning his submission, Mr de Silva stated that he intended to review the history of Article 10 of the Statute of the Special Court.  He said that this provision is in the Statute for the purpose of dealing with the arguments raised.

Judge Robertson asked if it is the position of the Prosecution that all of the accused violated the amnesty.

Mr de Silva said, “yes”.

Judge Robertson also asked if they all are charged for activities after the Lome Accord.

Mr de Silva again responded, “yes”.

Judge Robertson then asked about the “missing” reservation with respect to the Lome Accord.

Mr de Silva said that he preferred to call it a disclaimer.  He also noted that the pleadings on behalf of Mr Kallon and Mr Kamara rely on the disclaimer, therefore, he was very surprised when defence counsel raised the issue yesterday of the existence of the disclaimer.  Nonetheless, Mr de Silva said that the UN’s Office of Legal Affairs in New York was contacted and that a fax received from New York notes that a response to the inquiry about the disclaimer will be sent in the course of today.

Mr de Silva continued, stating that the Court is bound by the Statute, and that Article 10 prohibits the Court from taking the Lome Accord into account.  Mr de Silva further stated that Article 10 is in the Statute because the amnesty is dead.  It collapsed from material breaches and has ceased to have any validity.  Article 10 was introduced to deal with these arguments.  Mr de Silva next began to outline what happened among the fighting factions after the Lome Accord.  He discussed the first report of UNAMSIL, noting that it states that the military and security situation deteriorated in September and October of 1999 after a period of calm.  Fighting involving the AFRC and RUF took place in the North, including in Makeni and Kabala.

Judge King asked if Mr de Silva was saying that he who comes in equity must come with clean hands.

Mr de Silva replied that he could not have said it better.

Mr de Silva continued with a discussion of the third report of UNAMSIL.

Judge Robertson interrupted him, noting that he thought that the Court could accept that Mr de Silva is saying that these documents are evidence of a breakdown of peace.

Judge Robertson next noted that Mr Pestman says that international law requires an act of revocation.

In response, Mr de Silva said that the Lome Accord is a domestic agreement, and is not a treaty to which the Vienna Convention applies.  Moreover, a domestic agreement can never be a bar to international prosecution.  Mr de Silva also noted the UN Security Council’s comments regarding the Lome Accord.

Judge Robertson queried whether the Court could take a different view.

Mr de Silva acknowledged Judge Robertson’s point and returned the discussion to the history of Article 10 by reviewing the report of the UN Secretary General.  Mr de Silva noted the passages of the report regarding the amnesty and the statement that it had no validity in international law.

Judge Ayoola asked, if amnesty has no validity in international law, can it be relied on as a basis for bad faith?

Mr de Silva said, “no”, and submitted that those claiming amnesty now were aware of the disclaimer.

Judge Robertson then asked, if the Court holds that the Lome Accord is no bar to prosecution, what if an accused shows that he stopped fighting and came in because of the amnesty?

Mr de Silva said that obviously that would be a matter for the Trial Chamber.

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** This report is taken from the notes of an international law consultant for NPWJ, Mr John F. Stompor, who attended the proceedings before the Appeals Chamber of the Special Court for Sierra Leone.  The consultant was not present in the courtroom during the later afternoon.