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Legality of Amnesties in International Humanitarian Law the Lomé Amnesty Decision of the Special Court for Sierra Leone

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Legality of Amnesties in International Humanitarian Law the Lomé Amnesty Decision of the Special Court for Sierra Leone 06_notes_Meisenberg 17.1.2005 8:37 Page 837 Legality of amnesties in international humanitarian law The Lomé Amnesty Decision of the Special Court for Sierra Leone SIMON M. MEISENBERG* On 13 March 2004, the Special Court for Sierra Leone (SCSL) ren- dered an important decision on the validity of amnesties under international law.1 The Appeals Chamber of the SCSL ruled that amnesties granted to per- sons of the warring factions in the Sierra Leone civil war by the so-called Lomé Peace Agreement are no bar to prosecution before it. This decision is the first ruling of an international criminal tribunal unequivocally stating that amnesties do not bar the prosecution of international crimes before international or foreign courts. The following article will briefly discuss this significant and controversial decision for the development of international humanitarian law and will then examine the most important and critical findings of the ruling, after first giving a brief summary of the legal back- ground to the SCSL, the Lomé Peace Agreement and the Appeals Chamber decision (Lomé Decision) itself. Legal background to the Special Court for Sierra Leone The SCSL was established by an agreement between the United Nations and the government of Sierra Leone on 16 January 2002.2 This newly estab- lished ad hoc criminal tribunal is considered to represent a new category of international criminal courts and is largely referred to as a hybrid tribunal, since it incorporates various national elements in its Statute.3 The mandate of the Secretary-General of the United Nations to enter into negotiations with Sierra Leone in order to establish an independent criminal court for the prosecution of serious violations of international humanitarian law was based on Security * The author is a Research Associate at the Institute for International Law of Peace and Armed Conflict in Bochum, Germany and a Ph.D. candidate in international law at the Ruhr University Bochum. In 2003 the author worked at the Special Court for Sierra Leone. The author would like to thank James G. Stewart and Matteo Crippa for their criticism of an earlier version of this paper. 06_notes_Meisenberg 17.1.2005 8:37 Page 838 838 Affaires courantes et commentaires Current issues and comments Council Resolution 1315.4 The Special Court Agreement (the Agreement)5 and the Special Court Statute (the Statute)6 were ratified by the Sierra Leone parliament in March 2002 through the Ratification Act that explicitly states: “The Special Court shall not form part of the Judiciary of Sierra Leone.” 7 Nor is the Special Court, unlike the two ad hoc tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR), linked to the United Nations. It is therefore an independent international criminal tribunal. It has jurisdiction ratione materiae with respect to crimes against humanity, serious violations of Article 3 common to the Geneva Conventions and of Additional Protocol II, other serious viola- tions of international humanitarian law, and national crimes, such as serious abuse of female children and deliberate destruction of property as defined by national laws of Sierra Leone.8 The jurisdiction ratione temporae runs from 30 November 1996, the date of an earlier ceasefire – the Abidjan Accord – that also provided for an amnesty. The personal jurisdiction is limited to persons “who bear the greatest responsibility for serious violations of international humanitarian law and Sierra Leonean law…” 9 The Trial and Appeals Chamber are composed of a minority of judges appointed by the government of Sierra Leone; the remaining judges are appointed by the Secretary-General.10 This structure and the incorporation of national crimes into the Statute led the Secretary-General to label the Special Court as a “treaty-based sui generis court of mixed jurisdiction and composition.” 11 1 The Prosecutor v. Morris Kallon and Brima Buzzy Kamara, Special Court for Sierra Leone, SCSL-2004-15- AR72(E) and SCSL-2004-16-AR72(E), Decision on Challenge to Jurisdiction: Lomé Accord Amnesty (Appeals Chamber, 13 March 2004) (hereinafter Lomé Decision). 2 Agreement between the United Nations and the Government of Sierra Leone on the Establishment of a Special Court for Sierra Leone, annex to the Report of the Secretary-General on the establishment of a Special Court for Sierra Leone, UN Doc. S/2000/915, 4 October 2000 (hereinafter Agreement). 3 Avril McDonald, “Sierra Leone’s shoestring Special Court”, International Review of the Red Cross, Vol. 84, 2002, p. 124; Laura A. Dickinson, “The promise of hybrid courts”, American Journal of International Law, Vol. 97, April 2003, p. 295. 4 UN Doc. S/Res/1315 (2000), 14 August 2000. 5 Agreement, op. cit. (note 2). 6 Statute of the Special Court for Sierra Leone, enclosure to the Report of the Secretary-General on the establishment of a Special Court for Sierra Leone, UN Doc. S/2000/915, 4 October 2000 (hereinafter Statute). 7 Article 11(2) of the Special Court Agreement, 2002, Ratification Act, 2002, Supplement to the Sierra Leone Gazette, Vol. CXXX, No. II, dated 7 March 2002 (hereinafter Ratification Act 2002). 8 Statute, Articles 2-5. 9 Ibid., Article 1. 10 Ibid., Article 12. 11 Report of the Secretary-General on the establishment of a Special Court for Sierra Leone, UN Doc. S/2000/915, 4 October 2000, para. 9 (hereinafter Report of the Secretary-General). 06_notes_Meisenberg 17.1.2005 8:37 Page 839 RICR Décembre IRRC December 2004 Vol. 86 No 856 839 Background to the Lomé Amnesty Decision On 7 July 1999, the Revolutionary United Front (RUF) and the gov- ernment of Sierra Leone signed a peace agreement in Lomé, Togo (Lomé Agreement).12 Article IX of the Lomé Agreement made broad concessions to the RUF including, among other things, a blanket amnesty in order to calm the decade-long civil war.13 The amnesty granted unconditional and free par- don to all participants in the conflict.14 The United Nations Special Representative of the Secretary-General for Sierra Leone appended a dis- claimer to the agreement, stating that the amnesty provision therein would not apply to international crimes of genocide, crimes against humanity, war crimes and other serious violations of international humanitarian law.15 Article 10 of the Statute accordingly declares: “An amnesty granted to any person falling within the jurisdiction of the Special Court in respect of the crimes referred to in articles 2 to 4 of the present Statute shall not be a bar to prosecution.” 16 The accused, Kallon and Kamara, unsurprisingly referred to the amnesty provisions of the Lomé Agreement in a preliminary motion and argued, inter alia, that not all amnesties are unlawful in international law and that the Lomé Agreement was binding on the government of Sierra Leone, since it constituted an international treaty governed by the Vienna Convention on the Law of Treaties.17 They held that obligations deriving out of an international treaty could not be altered by a later treaty — the Agreement between the United Nations and Sierra Leone — without the consent of the parties to the Lomé Agreement. Therefore the government of Sierra Leone had acted contrary to its prior and international obligations when it signed the Agreement with the United Nations. More specifically, the defendants argued that the Lomé Agreement obliged the government of Sierra Leone to ensure that “no official or judicial action” would be taken against any members of the RUF and other participants in the conflict.18 This would include acceding to an extradition request or an agreement to 12 Peace Agreement between the Government of Sierra Leone and the Revolutionary United Front of Sierra Leone of 7 July 1999, Lomé, UN Doc. S/1999/777 (hereinafter Lomé Agreement), Annex. 13 Lomé Agreement, Article XI. 14 Ibid. 15 Seventh Report of the Secretary-General on the United Nations Mission in Sierra Leone, UN Doc. S/1999/836, 30 July 1999, para. 7. 16 Statute, Article 10. 17 Lomé Decision, op. cit. (note 1), paras. 22-35. 18 Ibid., para. 24. 06_notes_Meisenberg 17.1.2005 8:37 Page 840 840 Affaires courantes et commentaires Current issues and comments establish an international court, as such measures would clearly amount to “judicial or official” actions. The preliminary motion was decided by the Appeals Chamber without a prior decision of a Trial Chamber, since Rule 72(E) of the Rules of Procedure and Evidence of the SCSL (Rules) provides for a referral of pre- liminary motions to the Appeals Chamber when an issue of jurisdiction is concerned. The Lomé Amnesty Decision In its decision, the Appeals Chamber sets forth its deliberations in three key steps and arguments. First it examines the status of the Lomé Agreement and whether insurgents have treaty-making capacity in interna- tional law, and the legal consequences thereof for Article 10 of the Statute. Secondly, the Appeals Chamber considers whether it is authorized to review the legality of its statutory provisions. Thirdly, it examines the limits of amnesties in international law. The judges further discuss whether a prosecu- tion predating the Lomé Agreement amounts to an abuse of process. With reference to the first argument, the Appeals Chamber finds that the mere fact that the United Nations and other third State parties signed the Lomé Agreement cannot naturally categorize the agreement as an interna- tional treaty, creating obligations towards its signatories.19 The court did not accept the opinion of Kooijmans, who suggested that in certain cases peace agreements could be of an international character if the United Nations were strongly involved in the conflict through peace-keeping forces and had played an active role as mediator in the peace negotiations;20 in any such cases it should be assumed that the non-State entity had committed itself to its coun- terparts, the government and the United Nations.21 The judges, however, argued that the United Nations and third State parties were mere “moral guar- antors” with the purpose of observing that the Lomé Agreement was enacted in good faith by both parties.
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