Brooklyn Journal of International Law Volume 27 Issue 1 SYMPOSIUM: Article 10 Fourth Annual Latin American Round Table on Competition & Trade 2001 Absolute and Free Pardon: The ffecE t of the Amnesty Provision in the Lome Peace Agreement on the Jurisdiction of the Special Court for Sierra Leone Daniel J. Macaluso Follow this and additional works at: https://brooklynworks.brooklaw.edu/bjil Recommended Citation Daniel J. Macaluso, Absolute and Free Pardon: The Effect of the Amnesty Provision in the Lome Peace Agreement on the Jurisdiction of the Special Court for Sierra Leone, 27 Brook. J. Int'l L. (2001). Available at: https://brooklynworks.brooklaw.edu/bjil/vol27/iss1/10 This Note is brought to you for free and open access by the Law Journals at BrooklynWorks. It has been accepted for inclusion in Brooklyn Journal of International Law by an authorized editor of BrooklynWorks. ABSOLUTE AND FREE PARDON: THE EFFECT OF THE AMNESTY PROVISION IN THE LOME PEACE AGREEMENT ON THE JURISDICTION OF THE SPECIAL COURT FOR SIERRA LEONE "The names of the rebel offensives speak for themselves: Operation Burn House, was a series of arson attacks. Op- eration Pay Yourself, a programme of looting, and - most sinisterof all - OperationNo Living Thing."' I. INTRODUCTION In 1991, the West African country of Sierra Leone erupted in a civil conflict that has endured to the present. Hundreds of thousands have suffered at the hands of the rebels, whose composition includes younger boys and men who were abducted, drugged, and forced to carry out the gruesome campaigns of the rebel leaders. The rebel movement allegedly began in order to fight against gov- ernment corruption, but after a president was democrati- cally elected under United Nations ("UN") monitoring, the rebels persisted, refusing to relinquish control of the rich 1. Caroline Hawley, A Country Torn By Conflict, BBC NEWS ONLINE (Jan. 12, 1999), at http'/news.bbc.co.uk/hi/englisb/specialreportl 1999/01/99/ierraleone/newsid_251000/251377.stm. 348 BROOK. J. INTL L. [Vol. XXVII: 1 diamond areas of the country. Since 1996, the government and the rebels have tried four times to negotiate peace agreements in order to end the conflict. Both sides signed the third, and most comprehen- sive, peace agreement, on July 7, 1999, in the Togolese capital of Lom6. This agreement, known as the Lom6 Peace Agreement, contained a controversial "blanket" amnesty, which granted absolute and free pardon to any- one involved in the conflict for any act committed. At the time of the signing, the Special Representative to the United Nations attached to his signature a disclaimer that provided that the amnesty would not apply to viola- tions of international crimes. As the terms of the Lom6 Peace Agreement were repeatedly violated by the rebels, the government, in June 2000, asked the UN Security Council to create a court to try the worst of the offenders. Subsequently, the UN Secretary-General negotiated with the government, pursuant to a treaty-like document, the creation of a criminal court ("Special Court" or "Court") that would be Sierra Leone specific, i.e. it incorporates provisions of Sierra Leonean domestic criminal law into its subject-matter jurisdiction. The statute of the Court purports to set the temporal jurisdiction of the Court at November 30, 1996, for violations of both international and domestic crimes, in flagrant disregard of the amnesty provision in the Lom6 Peace Agreement, which would preclude prosecutions up to the moment of the signing. The contention that amnesty provisions cannot, without violating international law, bar prosecutions for international crimes is far from settled, and although the UN might be able to successfully argue this point in the context of the Special Court for Sierra Leone, the same precept does not apply to prosecutions of domestic crimes. On the contrary, the pardon in the Lom6 Peace Agree- ment is in full force and must be honored by the govern- ment if it intends to achieve everlasting peace in its rav- aged country. This Note attempts to examine the application of the amnesty provision contained in the Lom6 Peace Agreement on the ability of the Special Court to try those "most responsible" for violations of Sierra Leonean crimi- nal law. The Note is divided into six parts. Parts II and 2001] LOME PEACE AGREEMENT 349 III describe the history of the conflict and the creation of the Special Court. Part IV analyzes the amnesty provision of the Lom6 Peace Agreement. Part V discusses the use of Sierra Leonean law in the Special Court, and briefly de- scribes the substance of each law and purpose for its in- clusion into the subject-matter jurisdiction of the Court. Part VI establishes how the amnesty provision in the peace agreement will limit the temporal jurisdiction of the Court with respect to violations of domestic law, and sig- nals the flaw in the reasoning of the Secretary-General in his report to the Security Council'. Part VII will suggest some tactics that the government could employ to circum- scribe the effect of the amnesty, and maintain its legiti- macy in the peace process. II. BACKGROUND The conflict in Sierra Leone is long and compli- cated, and dates back to March 1991, when Revolutionary United Front ("RUF") combatants launched a war to over- throw the government. Captain Valentine Strasser, the new government leader, promised there would be multi- party elections, the first since 1967. Unfortunately, this promise was not fulfilled, and Strasser was deposed in a palace coup by a military junta that finally organized multi-party elections. The people of Sierra Leone democ- ratically elected Ahmed Tejan Kabbah of the Sierra Leone People's Party, in February 1996, under UN supervision. The RUF had previously refused to recognize the election results, but on November 30, 1996, Foday Sankoh, leader of the rebel movement, signed the Abidjan Accord,2 which purported to end the conflict. This victory was short lived, for on May 25, 1997, another military coup, led by Gen- eral Johnny Paul Koroma and comprised of both the na- tional army and the RUF, deposed President Kabbah and 2. See generally Sierra Leone Timeline, BBC NEWS ONLINE (Aug. 31, 2000), at http'//news.bbc.co.uk/hi/english/world/africa/newsid_741000/ 741070.stm; Sierra Leone - UNAMSIL Background, at http'/www.un.org(Depts/dpko /unamsillUnamsilB.htm (last visited Oct. 1, 2001); Crisis in Sierra Leone, BBC NEWS ONLINE (July 28, 2000), at http'//news.bbc.co.uk/hi/english/in~depth/africa/2000/sierraleone/ default.stm. 350 BROOK. J. INTL L. [Vol. XXVII:I sent him fleeing into neighboring Guinea.3 President Kab- bah returned to Freetown, the capital of Sierra Leone, on March 10, 1998, after the intervention of the Nigerian peacekeeping forces, or Economic Community Military Observer Group ("ECOMOG"). 4 The fighting continued, and by December 1998, the rebels had gained control of more than half of Sierra Leone, and by January 1999, had overrun most of Freetown.5 Later that month, ECOMOG chased the rebels out of Freetown and reinstalled the Kabbah government. 6 In May 1999, after one of the RUF's worst scourges on the countryside, both sides declared a cease-fire. The two sides, possibly motivated by the terror of their own actions, took up negotiations once again.7 These negotia- tions led to the creation of the Lom6 Peace Agreement,8 which Foday Sankoh and President Kabbah signed on July 7, 1999. 9 The United Nations Security Council sub- sequently created the United Nations Mission in Sierra Leone ("UNAMSIL") to implement and oversee the peace- keeping provisions of this accord.0 Despite the signing of the Lom6 Peace Agreement and the UN's subsequent deployment of peacekeeping forces in Sierra Leone, the atrocities continued.1" Though the accord contained provisions requiring the disarma- ment of both the rebels and the forces loyal to President Kabbah, 12 the rebels refused to comply, and attacks on the 3. See sources cited supra note 2. 4. See sources cited supra note 2. 5. See sources cited supra note 2. 6. See sources cited supra note 2. 7. Sierra Leone Peace Deal Signed, BBC NEWS ONLINE (July 7, 1999), at http://news.bbc.co.uk/hi/english/world/africa/newsid_388000/ 388153.stm. 8. Peace Agreement Between the Government of Sierra Leone and the Revolutionary United Front of Sierra Leone, U.N. SCOR, Annex, at 15, U.N. Doc. S/1999/777 (1999), available at http://www.sierra- leone.org/lomeaccord.html [hereinafter Lomd Peace Agreement]. 9. See Sierra Leone Peace Deal Signed, supra note 7. 10. S.C. Res. 1270, U.N. SCOR, 54th Sess., 4054th mtg., U.N. Doc. S/RES/1270 (1999), available at http://www.un.orgDocs/scres/ 1999/99sc1270.htm (last visited Oct. 1, 2001). 11. For more discussion of how the Lom6 Peace Agreement went wrong, see infra Part VII. 12. Lomd Peace Agreement, supra note 8, at Annex 1 (entitled 20011 LOME PEACE AGREEMENT 351 UN forces became increasingly frequent. 13 In addition, widespread human rights abuses around the country con- tinued to occur. 14 The tension between the UN peacekeep- ers and the rebels grew until May 18, 2000, when Foday Sankoh, the most notorious of the rebel leaders, 5 was captured. He has since been detained in an undisclosed location. 6 Sankoh's capture sparked the first discussions of a possible international criminal tribunal to try the rebel leader. In June 2000, the Sierra Leonean government asked the UN to help it set up a court to try war crimi- nals. In late July, the government approved a draft reso- lution that would formally request the Secretary-General to set up a criminal tribunal.