Summary
On the fifth day of the proceedings of the Appeals Chamber, there continued to be improvement in the performance of the participants.  As on previous days, the Registry did an excellent job with court management issues.  Counsel performed at a high level of competence, and were generally more poised than on prior days.  All of the judges also appeared to be more comfortable in their roles, and possibly as a result, more engaged.  However, the judges remained impatient with counsel and continued to exhibit a tendency to lecture counsel or to make arguments from the bench.
 

Proceedings

Before the proceedings began, Brima Bazzy Kamara, Morris Kallon and Sam Hinga Norman were escorted by Special Court security officers into the crowded courtroom and seated at a table at the rear of the section for counsel.

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

Judge Robertson began by asking Mr Fleming to continue with his submissions.

Mr Fleming first made reference to the principle that international crime should be prosecuted in domestic courts.

Judge Robertson agreed that this point could be seen in the International Criminal Court Statute, which establishes a system in which the ICC is a court of last resort.

Mr Fleming continued that, since Nuremberg, international courts such as the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda have been the creations of the United Nations Security Council.  That, however, was not the case when it came to this Court, or the courts in Kosovo and East Timor.

Judge Robertson also noted the attempt to establish a tribunal in Cambodia and it was conceded that that court has emerged as a different model.

In addition, Judge Robertson queried about the example of General Pinochet, in which he said Chile had failed to prosecute because of Pinochet’s power within the State.

Mr Fleming subsequently continued with his argument, noting that the Special Court has jurisdiction from the Government of Sierra Leone, and pointed to the Agreement establishing the Special Court, the Special Court Ratification Act and the Constitution of Sierra Leone.

Judge Robertson asked if the Constitution was from the time of independence or later.

Mr Fleming said that it was the Constitution of 1991.

Mr Fleming next highlighted what he thought were the relevant sections of the Ratification Act, noting sections 10, 11, 13, 14 and 16.

Judge Ayoola asked if it was the submission of Mr Fleming that jurisdiction of the Court was derived from the Ratification Act.

Mr Fleming said “yes”, and Judge Ayoola inquired further about the basis for Mr Fleming’s assertion.

Mr Fleming said that, when one looks at development of courts, one can see the intent that crimes be dealt with in domestic jurisdictions.

Judge Ayoola said that he didn’t see any rule of law establishing this principle.

Mr Fleming said that it is important to remember that these courts are in a stage of development.

Judge Robertson said that things depend on whether the decision is the Court’s, or a decision made by the treaty.

Mr Fleming said that it is his submission that there is a treaty, and that is what brought the Court into international law.  Executives can enter into treaties, but parliaments can bring such agreements into national law and can create obligations on people.

Mr Fleming then returned to section 10.

Judge Ayoola asked, if the Court is exercising Sierra Leone jurisdiction, why would there be a need for primacy?  How does the Special Court fit into the Sierra Leone legal order?

Mr Fleming said that the Court is either composed of judges appointed pursuant to the Constitution or not.  He then added that the Ratification Act goes further.  The Ratification Act brought the Court within the domestic jurisdiction and Sierra Leone either ratified the treaty properly or it did not.

Judge Robertson asked for the test the Court should use to review the constitutive documents.

Mr Fleming noted that, as Judge King had said, such review could be sought elsewhere.

Mr Fleming then stated that, prior to the Special Court Ratification Act, the crimes at issue were not crimes under Sierra Leone domestic law.  It is section 10 of the Ratification Act that brings these crimes under Sierra Leone law.

Judge Robertson responded by stating that section 10 does not give jurisdiction to the Sierra Leone courts.

Mr Fleming replied that he did not say that it does.

Judge Ayoola questioned the assumption that the Ratification Act established the Court, and asked what Mr Fleming would say if the Court was found to have been established by treaty.  Judge Ayoola continued by asking what Mr Fleming would say if these things had been done with respect to the ICC.  Would the ICC be considered a domestic court?

Mr Fleming said “no”.  He continued stating that the distinction is that the Court exercises jurisdiction in Sierra Leone, for Sierra Leone.

Judge Ayoola noted, however, that international crimes affect everyone.

Mr Fleming conceded that the Prosecutor could indict foreigners who commit crimes here in Sierra Leone.  Mr Fleming then resumed his argument stating that the Court was brought within the domestic jurisdiction so that justice could be done and be seen to be done.

Judge Robertson next asked Mr Fleming to address the argument against the existence of the power to set up the Court, and asked specifically whether Mr Fleming was challenging the power of the United Nations to set up the Court.

Mr Fleming said “no”.

Judge Robertson also said that he understood Mr Fleming is not arguing that there was no threat to peace and security.  Rather, Mr Fleming is arguing that the Sierra Leone Government had no power through the President to sign the Agreement or to ratify the Agreement absent a referendum.

Mr Fleming said “yes”.

Judge Robertson noted that the Prosecution points to the President’s powers under the Constitution.

In response, Mr Fleming claimed that the Ratification Act went further, because persons can now be charged in Sierra Leone with crimes that are now Sierra Leone crimes.

Judge Ayoola asked whether Mr Fleming’s submission was dependent on the seat of the Court being in Sierra Leone.

Mr Fleming said that it is not dependent on the seat of the Court, and that the seat of the Court is only one of the indicia.

Judge Ayoola noted the power of the Court to relocate and asked whether, given that, Mr Fleming’s submission remains the same.

Mr Fleming said “yes”, because the Court still needs to exercise power as set forth in the Statute.

In bringing his submission to a close, Mr Fleming said that his final point is the retrospectivity point, and he referred to Article 15 of the International Covenant on Civil and Political Rights.

Judge Robertson noted that if the crimes are crimes under international law then there is no retrospectivity problem.  He also noted that there is a greater burden here because the acts themselves were against Sierra Leone law and they are merely elevated to international law.

Mr Fleming said that the charging of the crime is the prejudice.

Judge Robertson asked if Mr Fleming was insisting that if not for the Special Court that persons would have gotten away with the crime.

Mr Fleming said “yes”, and that that is the point of the Lome Accord.

Judge Winter asked if Mr Fleming was saying that labelling is more important than content.

Mr Fleming said that, ultimately, “yes”.

* Prosecutor v. Norman: Motion based on Lack of Jurisdiction:  Lawfulness of the Court’s Establishment
Submission by Sulaiman Banja Tejan-Sie for the Defence

Mr Tejan-Sie began his submission by stating that it is necessary to decide whether the creation of the Court is free from defect, and noted the Tadic case as an instance in which a similar decision needed to be made at the beginning of the proceedings of the ICTY.

Judge Robertson asked what was the test applied to review the decision of the UN Security Council.

Mr Tejan-Sie started to specify the test in those circumstances where the decision was political.

However, Judge Robertson interrupted, stating that he thought that the Court went further and held that if any decision was contrary to the UN Charter the Court could invalidate it.  Judge Robertson also stated that he thought the Tadic case was a good case for Mr Tejan-Sie.

Mr Tejan-Sie noted the report of the UN Secretary General, reading the section that states that implementation of the Agreement would require that the Agreement is incorporated in the national law of Sierra Leone in accordance with constitutional requirements.

Judge Robertson stated that this begs the question of what is a constitutional requirement.  Is it section 40?  Is it a referendum?

Mr Tejan-Sie said that section 40 allows for the signature of treaties, but there is a proviso.

Judge Robertson asked why it was wrong to follow section 40.

Mr Tejan-Sie responded that he is not saying that it is.  He clarified that what he is saying is that the Special Court Ratification Act alters the Constitution of Sierra Leone.

Judge Robertson then asked Mr Tejan-Sie to identify the relevant constitutional language.

Mr Tejan-Sie said that the Sierra Leone Parliament attempted to ratify the Agreement but failed because of section 108 of the Constitution.

Judge Robertson said that the Prosecution says this is the same as would be the case for detainees extradited to the ICC.

Mr Tejan-Sie said that section 108(2) discusses a referendum.

Judge Robertson asked how many provisions Mr Tejan-Sie is saying the Ratification Act alters.

Mr Tejan-Sie said that the Ratification Act alters sections 120 and 122.  He said that the Special Court is not part of the judiciary of Sierra Leone, but the Court has usurped the powers of the Sierra Leone judiciary.

Judge Robertson said that he is trying to make a better argument than the one Mr Tejan-Sie is making.  He queried, if the Ratification Act puts Sierra Leone crimes under the power of the Special Court to prosecute, and that is a violation of the Constitution, then does the entire structure fail?  He then specified that he is pointing to Article 5 of the Special Court Statute.  He further stated that, going along with Mr Tejan-Sie’s argument, one would have to say that this makes the whole structure illegal.

Mr Tejan-Sie said “yes”.

Judge Ayoola asked Mr Tejan-Sie if there is anything to add to the contention that Article 5 makes the whole Agreement invalid.

Mr Tejan-Sie said he also submits that the Agreement is invalid because the Ratification Act was not lawful.

Judge Ayoola questioned Mr Tejan-Sie, suggesting that a referendum only is needed if there would be an amendment to the Constitution.  Judge Ayoola continued, stating that the mere fact of concurrent jurisdiction does not alter the Constitution because jurisdiction is not taken away.

Mr Tejan-Sie then was asked to pursue his “effective control” argument.

Judge Robertson stated that he is happy to assume that at the time 2/3 of the territory was under occupation and control of the RUF/AFRC, but noted that these are odd terms given the Prosecution’s case.  He asked, are you saying that the RUF was the legitimate government?

Mr Tejan-Sie said “no”.

Judge Robertson noted the Fiji case, and stated that the Court cannot regard a government as a legitimate government simply by acquiescence.  It is necessary that there be actual approval.  He then asked Mr Tejan-Sie if he was saying that there was acquiescence or approval.

Mr Tejan-Sie said that there could have been approval.

Judge Robertson asked whether that would have been under threat of having one’s arm chopped off.  Judge Robertson then asked whether the Government was a democratically elected Government, a democratically elected Government in which your client was the Deputy Minister of Defence.

Mr Tejan-Sie said “yes”.

Judge Robertson next asked why the Government did not then have power to execute the treaty.

Mr Tejan-Sie said that two issues must be considered – control and legal personality.  He said the Government is supposed to be the agent for Sierra Leone but, for the Government to enter into an agreement, is must have effective control.

Judge Ayoola asked where the Government resided.

Mr Tejan-Sie said, in the people, represented by the President.

Judge Robertson asked if Mr Tejan-Sie’s client would have been surprised if told that he was not a minister in a legitimate government.

Mr Tejan-Sie said that his client is aware of what he is saying.

Judge King asked whether his client is in a peculiar position because he was a minister in the Government, and inquired whether the doctrine of collective responsibility applies.

Judge Robertson asked if this argument is a defence before the Special Court.

Mr Tejan-Sie said that it must be a defence in a court of this character.

* Prosecutor v. Kallon: Motion based on Lack of Jurisdiction:  Establishment of Special Court Violates Constitution of Sierra Leone
Submission by Steven Powles for the Defence

Mr Powles began by stating that the jurisdiction of the Court results from the Agreement, not the Ratification Act, and in that respect he can accept the Prosecutor’s position.  He also said that he does not agree with Mr Fleming that, if the Agreement is the source of the Court’s authority, a challenge to the Court’s establishment fails.

Mr Powles cited the example of the Tadic case in which the ICTY considered the UN Security Council decision creating the Court, and submitted that the test is set out at paragraph 20.

Judge Robertson asked if Mr Powles is aware that that means it will have to be proven that the action of the Sierra Leone Government was so manifestly unconstitutional that it must fail.

Mr Powles said “yes”.

Judge Robertson asked what is Mr Powles’ point about the Ratification Act.

Mr Powles said that his position is that the President of Sierra Leone acted unconstitutionally in setting up the Court.  He said that entering the Agreement pursuant to Section 40(4) of the Constitution was inappropriate, and that an amendment to the Constitution was necessary.

Judge Robertson suggested that a referendum would have been impossible, or perhaps if held, would have resulted in many hands being chopped off.

Mr Powles said that the Court was making a great assumption and that there is no evidence for it.  He also said that he was not arguing that there was a lack of effective control.

Judge Robertson said “oh, come on”, and noted that the Court was established to vindicate human rights.

Mr Powles next pointed to section 11(2) of the Special Court Ratification Act, which he said set forth that the Special Court shall not form part of the judiciary of Sierra Leone.  Mr Powles continued, stating that the use of the term court in the Constitution is not general, but is defined in section 30.  He further stated that this Court is not a court defined under the Constitution.

Judge Robertson asked if this would apply to the ICC and the ICJ.

Mr Powles, as an example, noted the position of Ireland with respect to its constitution and the ICC.

Judge Robertson noted that Mr Powles also cites three others, including Azerbaijan.

Mr Powles said “no”, he actually cites more.

Finally, Mr Powles attempted to point to the dangers of the position that he was arguing against by using a hypothetical scenario.  He queried whether it would be all right for Sierra Leone to enter into a treaty with Liberia to allow Liberians to come to Sierra Leone to torture people.

* Prosecutor v. Kamara: Application in respect of Jurisdiction and Defects in the Indictment
* Prosecutor v. Norman: Motion based on Lack of Jurisdiction:  Lawfulness of the Court’s Establishment
* Prosecutor v. Kallon: Motion based on Lack of Jurisdiction:  Establishment of Special Court Violates Constitution of Sierra Leone
Submission by Chris Staker for the Prosecution

Judge Robertson began by asking Mr Staker immediately what the Special Court is doing with the power to prosecute molestation of girls and burning of shelters.

In response, Mr Staker said that he would come to that question, but first wished to outline his argument.

Mr Staker began with a discussion of the doctrine of precedent at the ICTY, citing the Aleksovski case, and the ICTR, citing the Semanza case.

He next outlined the Prosecution’s argument.

First, addressing the jurisdiction of the Court, he said that the Prosecution did not contest the Court’s power to decide the lawfulness of its establishment.  He also said that the Prosecution does not contest that Tadic is the relevant precedent; however, judicial review can mean different things in different contexts.  Citing Brownlie, he further stated that an international court does not have the power to declare illegal or invalid the internal workings of a State.

Second, he stated that the Special Court Agreement is an international treaty.

Third, he stated that the Special Court Agreement entered into force and does not depend on the validity of implementing legislation.

Fourth, he stated that the Special Court is an international organization and an international court.

Fifth, he stated that the Special Court operates in international law, not national law.

Sixth, he stated that the validity of the Special Court Agreement and the establishment and functioning of the Court are not affected by the Sierra Leone Constitution.

Mr Staker next expanded on each of these points.

With regard to the first point, he stated that the Court was created by the Agreement not by the Ratification Act, quoting from both documents.

With regard to the second point, he began to reinforce the point that the Agreement is an international treaty.

Judge Robertson interrupted him and said that he thought there was no dispute about that point.

With regard to the third point, Mr Staker stated that the treaty has entered into force, and cited Article 21 of the Agreement.

With regard to the fourth point, he said that the Prosecution adopts the statements of Mr Sands that support the position that the Special Court is an international organization and an international court.

With regard to the fifth point, Mr Staker began to reinforce his point that the Special Court operates in international law, not national law.

Judge Robertson interrupted him and asked what he made of the UN Secretary General’s description of the Court in his report to the Security Council.

Mr Staker said that the reference to “mixed”, means a mixed composition and mixed jurisdiction, that is, there is jurisdiction over some international law and Sierra Leone law crimes.  The fact that the Court is given jurisdiction over crimes under Sierra Leone law does not make it a national court.

Judge Robertson inquired about the situation where there is an allegation of sex with a girl of 12, and suggested that this has nothing to do with an international tribunal.

Mr Staker stated that the Secretary General was not of that view.  The only question is whether an international court can try crimes under national law.

Judge Robertson then asked what power President Kabbah had to give this away.  He also asked what the purpose is of this Article.

Mr Staker said that there is not rule under international law that a court cannot prosecute crimes under other law.

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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.