The Contribution of the Special Court for Sierra Leone to the Development of International Humanitarian Law
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The Contribution of the Special Court for Sierra Leone to the Development of International Humanitarian Law
(2013)
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Ousman Njikam studierte Rechtswissenschaften in Dschang (Kamerun), Teramo (Italien) und Göttingen mit den Schwerpunkten Strafrecht, Völkerrecht und Völkerstrafrecht. Anschließend arbeitete er als Praktikant bei Interpol in Frankreich. Von 2006 bis 2008 war er als wissenschaftlicher Mitarbeiter am Lehrstuhl von RiLG Prof. Dr. Kai Ambos an der Universität Göttingen beschäftigt. Im Anschluss an seinen Magisterabschluss promovierte er an der Universität Göttingen. Von 2008 bis 2009 arbeitete er bei der Staatsanwaltschaft des Internationalen Strafgerichtshofs in Den Haag. Seit April 2009 ist er Associate Legal Officer in den Kammern beim Internationalen Strafgerichtshof für das ehemalige Jugoslawien in Den Haag.Abstract
The Special Court marked a new approach by the international community to violations of international humanitarian law. Its mode of creation $ai.e.$z through an agreement between the UN and the Government of Sierra Leone - as compared to the UN $aad hoc$z Tribunals that were established pursuant to Chapter VII of the UN Charter - was a particularity of the Court. It is the only international court that possesses concurrent, primary and complimentary jurisdiction. The objective of this thesis is to provide a comprehensive analysis of the contribution of the Special Court to the development of international humanitarian law. Similar to its predecessors ($aad hoc$z Tribunals), the Special Court consolidated the principle under international law of individual criminal responsibility.Ousman Njikam evaluates the Special Court's mandate to »prosecute those who ›bear the greatest responsibility‹« as being in itself a contribution to the development of international humanitarian law since the ICTY and ICTR at the time of their inception did not have this limitation $arationae personae / prosecutorial discretion.$zThe author assesses some of the interesting and challenging issues dealt with such as the recruitment of child soldiers, amnesty for international crimes, head of state immunity and the crime of forced marriage. He concludes that the Special Court contributed albeit to a limited extent to the development of international humanitarian law.The Special Court marked a new approach by the international community to violations of international humanitarian law. Its mode of creation $ai.e.$z through an agreement between the UN and the Government of Sierra Leone - as compared to the UN $aad hoc$z Tribunals that were established pursuant to Chapter VII of the UN Charter - was a particularity of the Court. It is the only international court that possesses concurrent, primary and complimentary jurisdiction. The objective of this thesis is to provide a comprehensive analysis of the contribution of the Special Court to the development of international humanitarian law. Similar to its predecessors ($aad hoc$z Tribunals), the Special Court consolidated the principle under international law of individual criminal responsibility.Ousman Njikam evaluates the Special Court's mandate to »prosecute those who ›bear the greatest responsibility‹« as being in itself a contribution to the development of international humanitarian law since the ICTY and ICTR at the time of their inception did not have this limitation $arationae personae / prosecutorial discretion.$zThe author assesses some of the interesting and challenging issues dealt with such as the recruitment of child soldiers, amnesty for international crimes, head of state immunity and the crime of forced marriage. He concludes that the Special Court contributed albeit to a limited extent to the development of international humanitarian law.
Table of Contents
| Section Title | Page | Action | Price |
|---|---|---|---|
| Foreword | 5 | ||
| Preface | 7 | ||
| Table of Contents | 9 | ||
| Abbreviations | 17 | ||
| Chapter 1: Introduction | 23 | ||
| Chapter 2: Politico-Historical Context of Sierra Leone priorto during the Conflict | 34 | ||
| I. Pre-Colonial Phase | 34 | ||
| II. Post-Colonial Phase | 35 | ||
| III. The Peace Settlements | 37 | ||
| IV. The Parties to the Conflict | 39 | ||
| 1. The Republic of Sierra Leone Military Forces and Assimilated | 39 | ||
| a) Republic of Sierra Leone Military Forces | 39 | ||
| b) The Armed Forces Revolutionary Council | 39 | ||
| 2. The Revolutionary United Front | 40 | ||
| 3. The National Patriotic Front for Liberia | 40 | ||
| 4. The Civil Defence Force | 41 | ||
| 5. Private Military Companies | 42 | ||
| 6. [International] Peacekeeping Forces | 43 | ||
| Chapter 3: Objective, Establishment, Jurisdiction and Organization of the Special Court | 45 | ||
| I. The Objective / Aim of the Special Court | 45 | ||
| 1. Political Objective | 45 | ||
| 2. Humanitarian Objective | 46 | ||
| 3. Legal Objective | 48 | ||
| II. Establishment | 50 | ||
| III. Organization of the Special Court | 52 | ||
| 1. The Chambers | 54 | ||
| 2. The Office of the Prosecutor | 57 | ||
| 3. The Registry | 59 | ||
| IV. Jurisdiction (Concurrent, Primary and Complementary) | 62 | ||
| 1. General Remarks | 62 | ||
| a) Genuine Unwillingness or Inability of Sending State | 67 | ||
| b) Security Council Authorization | 69 | ||
| c) Security Council Authorization based on any State Proposal | 69 | ||
| 2. Substantive Jurisdiction (rationae materiae) | 70 | ||
| a) Crimes against Humanity | 71 | ||
| b) Violations of Article 3 Common to the Geneva Conventions and of AP II | 72 | ||
| c) Other Serious Violations of International Humanitarian Law | 73 | ||
| d) Crimes under Sierra Leonean Law | 74 | ||
| 3. Personal Jurisdiction (rationae personae) | 74 | ||
| 4. Temporal Jurisdiction (rationae temporis) | 80 | ||
| 5. Territorial Jurisdiction | 81 | ||
| 6. The Cases before the Special Court | 81 | ||
| 7. Conclusion | 85 | ||
| Chapter 4: The Special Court’s Case on Law Crimes against Humanity | 86 | ||
| I. Notion and Development of Crimes against Humanity | 86 | ||
| II. The Special Court’s Definition and Rationale of Crimes against Humanity | 89 | ||
| III. The Contextual Elements (Part of a Widespread or Systematic Attack against any Civilian Population) | 90 | ||
| 1. A widespread or Systematic Attack | 91 | ||
| a) The Word Attack | 91 | ||
| b) The Phrase Widespread or Systematic | 94 | ||
| 2. Any Civilian Population | 97 | ||
| 3. ‚Part of‘ | 100 | ||
| IV. The Mental Element (mens rea) | 101 | ||
| 1. The Discriminatory Element | 102 | ||
| V. The Elements of the Acts Enumerated in Article 2 SCSL Statute | 102 | ||
| 1. Murder | 102 | ||
| 2. Extermination | 104 | ||
| 3. Enslavement | 107 | ||
| 4. Deportation | 111 | ||
| 5. Imprisonment | 113 | ||
| 6. Torture | 114 | ||
| 7. Rape, Sexual Slavery, Enforced Prostitution, Forced Pregnancy and any other Form of Sexual Violence | 117 | ||
| a) Rape | 118 | ||
| aa) The Characterization of Rape in International Criminal Law | 119 | ||
| b) Sexual Slavery | 123 | ||
| aa) Substantive Elements (actus reus) | 125 | ||
| bb) Mental Element (mens rea) | 126 | ||
| c) Enforced Prostitution | 127 | ||
| d) Forced Pregnancy | 127 | ||
| e) Other Forms of Sexual Violence | 129 | ||
| 8. Persecution on Political, Racial and Religious Grounds | 130 | ||
| 9. Other Inhumane Acts | 131 | ||
| VI. Conclusion | 134 | ||
| Chapter 5: The Special Court’s Case Law on War Crimes | 136 | ||
| I. The Notion of War Crimes | 136 | ||
| II. The Regulation of International and Non-international Armed Conflicts | 137 | ||
| III. The Applicability of Article 3 of the SCSL Statute | 144 | ||
| IV. The Nature of the Conflict in Sierra Leone | 145 | ||
| 1. International or Non-international Armed Conflict? | 146 | ||
| a) General Remarks | 146 | ||
| b) Special Court Jurisprudence | 148 | ||
| 2. The Impact of the ECOMOG and UNAMSIL Intervention | 153 | ||
| a) ECOMOG Intervention | 153 | ||
| b) UNAMSIL Intervention | 157 | ||
| 3. The Involvement of Foreign Mercenaries | 158 | ||
| 4. The British Intervention | 159 | ||
| 5. Evaluation of Special Court Characterization of the Nature of the Conflict in Sierra Leone | 160 | ||
| V. Temporal and Territorial Applicability of Common Article 3 and AP II | 161 | ||
| VI. Nexus to Armed Conflict | 162 | ||
| VII. The Elements of the Acts Enumerated in Article 3 of SCSL Statute | 163 | ||
| 1. Violence to Life, Health and Physical or Mental Well-being of Persons, in Particular Murder as well as Cruel Treatment such as Torture, Mutilation or any Form of Corporal Punishmed | 164 | ||
| 2. Collective Punishments | 165 | ||
| 3. Taking of Hostages | 166 | ||
| 4. Acts of Terrorism | 169 | ||
| 5. Outrages upon Personal Dignity, in Particular Humiliating and Degrading Treatment, Rape, Enforced Prostitution and any Form of Indecent Assault | 171 | ||
| 6. Pillage | 173 | ||
| 7. The Passing of Sentences and the Carrying out of Executions without Previous Judgment Pronounced by a Regularly Constituted Court, Affording all the Judicial Guarantees which are Recognized as Indispensable by Civilized Peoples | 174 | ||
| VIII. Conclusion | 175 | ||
| Chapter 6: The Special Court’s Case Law on other Serious Violations of IHL | 176 | ||
| I. The Notion of Customary International Law | 177 | ||
| II. Intentionally Directing Attacks against Personnel, Installations, Material, Units or Vehicles Involved in a Humanitaran Assistance or Peacekeeping Mission in Accordance with the Charter of the United Nations | 177 | ||
| 1. Treaties and other Legal Instruments | 179 | ||
| 2. Protection given to Civilians and Civilian Objects | 183 | ||
| 3. The Practice of the Special Court | 185 | ||
| a) The Accused Directed an Attack against Personnel, Installations, Material, Units or Vehicles Involved in a Humanitarian Assistance or Peacekeeping Mission in Accordance with the Charter of the United Nations | 188 | ||
| b) The Accused Intended such Personnel, Installations, Material, Units or Vehicles to be the Object of the Attack | 190 | ||
| c) Such Personnel, Installations, Material, Units or Vehicles were Entitled to that Protection given to Civilians or Civilian Objects under the International Law of Armed Conflict | 191 | ||
| d) The Accused knew or had Reason to know that the Personnel, Installations, Material, Units or Vehicles were Protected | 192 | ||
| III. Conscripting or Enlisting Children under the Age of 15 Years into Armed Forces or Groups or Using them to Participate Actively in Hostilities | 194 | ||
| 1. General Remarks | 194 | ||
| 2. Foundation of the Crime | 197 | ||
| 3. The Conscripting or Enlisting Children under the Age of 15 Years into Armed Forces or Groups or Using them to Participate Actively in Hostilities as Customary International Law? | 198 | ||
| 4. The Jurisprudence of the Special Court | 205 | ||
| a) Material Elements | 209 | ||
| aa) Conscription and Enlistment | 209 | ||
| bb) (National Armed Forces), Armed Forces and Armed Groups | 212 | ||
| cc) Active Participation in Hostilities | 213 | ||
| b) Mental Elements – The knew or should have known Test | 217 | ||
| Chapter 7: Crimes under Sierra Leonean Law | 219 | ||
| Chapter 8: The Legacy of the Special Court | 225 | ||
| I. Jurisprudence on Amnesty | 226 | ||
| 1. What is an International Crime? | 226 | ||
| 2. The Concept of Amnesty | 227 | ||
| 3. International Criminal Law Conventions | 235 | ||
| 4. General Human Rights Conventions | 237 | ||
| 5. Soft Law Documents | 241 | ||
| II. Jurisprudence on Forced Marriage | 246 | ||
| 1. General Remarks | 246 | ||
| 2. The Concept of Forced Marriage | 247 | ||
| 3. The Requirement of Consent | 254 | ||
| III. Jurisprudence on Head of State Immunity | 256 | ||
| 1. Jurisdictional Requirement | 259 | ||
| 2. Internationality Requirement | 261 | ||
| a) Head of State Immunity as a Bar to Criminal Proceedings? | 261 | ||
| b) The Obligation of Third States to Cooperate | 266 | ||
| c) What are the Common Factors/Criteria for an International Criminal Court? | 269 | ||
| IV. Jurisdiction over Children between 15 and 18 Years of Age | 271 | ||
| V. Jurisprudence on Sentencing | 273 | ||
| 1. Primary Objectives of Sentencing | 273 | ||
| a) Retribution | 274 | ||
| b) Deterrence | 275 | ||
| 2. The Regulatory Framework for Sentencing at the Special Court | 277 | ||
| 3. The Practice of Sentencing at the Special Court | 278 | ||
| VI. Outreach Section | 280 | ||
| Chapter 9: General Conclusion | 282 | ||
| German Summary | 285 | ||
| Bibliography | 290 | ||
| Special Court Judgments, Decisions and other Documents | 307 | ||
| 1. Appeal Judgments (A) (chronological) | 307 | ||
| 2. Trial Judgments (T) (chronological) | 307 | ||
| 3. Appeal Decisions (Decision on Interlocutory) (chronological) | 307 | ||
| 4. Decisions (chronological) | 308 | ||
| 5. Indictments (chronological) | 309 | ||
| ICTY Judgments, Decisions and Indictments | 310 | ||
| 1. Appeal Judgments (A) (chronological) | 310 | ||
| 2. Judgments (T) (chronological) | 310 | ||
| 3. Appeal Decisions (chronological) | 312 | ||
| 4. Decisions (T) | 312 | ||
| 5. Indictments (chronological) | 312 | ||
| ICTR Judgments and Indictments | 313 | ||
| 1. Appeal Judgments (A) (chronological) | 313 | ||
| 2. Judgments (T) (chronological) | 313 | ||
| 3. Indictments | 314 | ||
| Other Jurisprudence and Documents | 315 | ||
| 1. International Court of Justice (chronological) | 315 | ||
| 2. International Criminal Court (chronological) | 315 | ||
| 3. Special Tribunal for Lebanon | 316 | ||
| 4. African Court on Human and Peoples’ Rights | 316 | ||
| 5. European Court of Human Rights | 317 | ||
| 6. Inter-American Court of Human Rights | 317 | ||
| 7. Inter-American Commission of Human Rights | 317 | ||
| 8. Nuremberg Tribunal (chronological) | 317 | ||
| 9. Israel | 317 | ||
| 10. Malaysia | 317 | ||
| 11. United Kingdom (chronological) | 317 | ||
| 12. United States of America (chronological) | 318 | ||
| 13. Women’s International War Crimes Tribunal for the Trial of Japan’s Military Sexual Slavery | 318 | ||
| United Nations Documents | 319 | ||
| 1. United Nations Security Council Resolutions (chronological) | 319 | ||
| 2. United Nations General Assembly Resolutions (chronological) | 320 | ||
| 3. United Nations Secretary-General Reports (chronological) | 320 | ||
| 4. Other United Nations Documents (alphabetical) | 320 | ||
| Table of other Authorities | 323 | ||
| 1. Domestic Laws (alphabetical) | 323 | ||
| 2. International Legal Instruments and Commentaries (alphabetical) | 324 | ||
| 3. List of other Legal Authorities (alphabetical) | 325 | ||
| 4. Statutes of International Criminal Courts (alphabetical) | 328 | ||
| Index | 329 |