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

102 Chapter 4
The Prosecutor’s definition of the persons who bear the greatest
responsibility is informed by article 6(1) of the Statute of the SCSL. 33
Article 6(1) creates individual criminal responsibility for persons who
committed international crimes in Sierra Leone. However, it has been
correctly argued that the definition adopted by the Prosecutor is too
narrow 34 and targets only a few culprits. It only targets those who ‘caused’
or ‘instigated’ the war in Sierra Leone, at least in the Prosecution’s view.
It leaves out the possibility of other persons equally responsible for fuelling
the war, or all those that took part in the actual commission of
international crimes in Sierra Leone even after the armed conflict had
started. For instance, one wonders whether peacekeepers 35 and other foot
soldiers under the command of rebel forces would not qualify as those who
bear equal responsibility for international crimes. Arguably, the approach
taken by the Prosecutor leaves too much discretion on whom to and not to
indict, despite some people’s clear role in the commission or participation
in international crimes.
Despite the lack of a definition of ‘persons who bear the greatest
responsibility’ in the Statute, the Court has been able to develop its own
jurisprudence on this question. It did so for the first time in Prosecutor v
Fofana. 36 The Trial Chamber of the SCSL traced the origin of the concept
and noted that ‘the issue of competence of the Special Court received
significant attention during discussions on the establishment of the Special
Court and drafting of its Statute, as discussed by the Parties’. 37 It further
stated that the ICTY and ICTR have the ‘power to prosecute persons
responsible for serious violations of international humanitarian law’ 38
while the SCSL has ‘power to prosecute persons who bear the greatest
responsibility for serious violations of international humanitarian law and
Sierra Leonean law’. 39 It appears that the SCSL employs a higher and
stricter threshold than that of the ICTY and ICTR. The Trial Chamber
considered whether such a concept is a ‘juridical requirement or merely an
articulation of prosecutorial discretion’. 40 In this regard, it had to examine
the drafting history of the provision of article 1 of the Statute. It concluded
that the phrase was discussed between the Secretary-General of the UN
and the Security Council. In the Report of the Secretary-General on the
establishment of the SCSL, paragraph 30 states that: 41
33
34
35
36
Bhoke (n 6 above) 179.
As above.
But see art 1(2) Statute of the SCSL.
Prosecutor v Fofana (n 14 above) Decision on the preliminary defence motion on the lack
37
38
39
40
41
of personal jurisdiction filed on behalf of the accused, 3 March 2004 paras 21- 27.
As above, para 21.
Art 1 Statute of ICTY; art 1 Statute of ICTR.
Prosecutor v Fofana (n 36 above).
As above.
Prosecutor v Fofana (n 36 above) para 22 (quoting para 30 of the Report of the Secretary -
General on the establishment of the SCSL).