Prosecuting International Crimes in Africa - PULP - University of ...

98 Chapter 4
Unlike the International Criminal Tribunal for the former Yugoslavia
(ICTY) and the International Criminal Tribunal for Rwanda (ICTR)
which are purely international tribunals established under Chapter VII of
the Charter of the UN, the SCSL was established under Chapter VI of the
Charter of the UN. The SCSL is a hybrid criminal court, 6 even though it
has characteristics that may classify it as an international criminal tribunal.
It is composed of international and national judges, lawyers, and other
appointed staff. It applies international law and domestic law. 7 It is neither
a national court of Sierra Leone nor part of the judicial system of Sierra
Leone, nor is it governed by the Constitution of Sierra Leone. 8 The Trial
Chamber and Appeals Chamber of the SCSL have, however, held that the
SCSL is ‘truly an international tribunal.’ 9 It has characteristics like those
of the International Criminal Court (ICC), the ICTY and ICTR in terms of
personal and subject matter jurisdictions, its legal personality and its
capacity to conclude agreements with states. 10 Thus, one cannot rule out
the fact that the court is truly an international tribunal as the Appeals
Chamber of the SCSL has found. 11
The SCSL has power ‘to prosecute persons who bear the greatest
responsibility for serious violations of international humanitarian law and
Sierra Leonean law committed in the territory of Sierra Leone since 30
November 1996’. 12 It has inherent jurisdiction over persons who commit
war crimes and crimes against humanity, 13 particularly those ‘persons who
bear the greatest responsibility’ for international crimes committed in
6 See generally, C Bhoke ‘The trial of Charles Taylor: Conflict prevention, international
law and an impunity-free Africa’ in AV Menon (ed) War crimes and law (2008) 174-215.
7 Art 14(1) and (2) Statute of the SCSL.
8 Prosecutor v Kondewa (Case SCSL-03-12-PT) Decision on the urgent defence application
for release from provisional detention, 21 November 2003 para 27; Prosecutor v Norman,
Kallon and Kamara (Case SCSL-2004-14-AR 72(E), SCSL-2004-15-AR 72(E0 and
SCSL-2004-16-AR 72(E)) Decision on constitutionality and lack of jurisdiction, 13
March 2004 paras 81-82; Prosecutor v Kallon and Kamara (Case SCSL-2004-15-AR 72(E)
and SCSL-2004-16-AR 72(E)) Decision on challenge to jurisdiction: Lomé accord
amnesty, 13 March 2003; Prosecutor v Norman (Case SCSL-04-14-AR 72) Decision on
preliminary motion based on Lack of jurisdiction (child recruitment) 13 May 2004
paras 25, 53-55.
9
Prosecutor v Taylor (Case SCSL-2003-01-I) Decision on immunity from jurisdiction, 31
May 2004 paras 40-42; Prosecutor v Kallon (Case SCSL-04-15-AR 72) Norman (Case
SCSL-04-16-72AR) Kamara (Case SCSL-04-16-AR72) Decision on constitutionality
and lack of jurisdiction 13 March 2004 para 55.
10 Prosecutor v Taylor para 40.
11 Prosecutor v Taylor paras 37-38; Prosecutor v Kanu (Case SCSL-04-16-AR 72) Decision on
motion challenging jurisdiction and raising objections based on abuse of process 25
May 2004 paras 2-5.
12 Art 1(1) Statute of the SCSL.
13
Prosecutor v Kanu (Case SCSL-04-16-PT) Written reasons for the Trial Chamber’s oral
decision on the defence motion on abuse of process due to infringement of principles of
nullum crimen sine lege and Non-retroactivity as to several counts, 31 March 2004 para
33; Prosecutor v Brima (Case SCSL-04-16-PT) Decision on applicant’s motion against
denial by the acting principal defender to enter a legal service contract for the
assignment of counsel, 6 May 2004 paras 39, 55-62. But see decisions of the Appeals
Chamber of the SCSL: Prosecutor v Norman, Fofana and Kondewa (Case SCSL-04-14A)
Decision on prosecution appeal against the Trial Chamber’s decision of 2 August 2004