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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).
Prosecution and punishment of international crimes by the Special Court for Sierra Leone 103 While those ‘most responsible’ obviously include the political or military leadership, others in command authority down the chain of command may also be regarded ‘most responsible’ judging by the severity of the crime or its massive scale. ‘Most responsible’, therefore, denotes both a leadership and authority position of the accused, and a sense of the gravity, seriousness or massive scale of the crime. It must be seen, however, not as a test criterion or a distinct jurisdictional threshold, but as […] guidance to the Prosecutor in the adoption of a prosecution strategy and in making decisions to prosecute in individual cases. The Trial Chamber then examined the letter exchanged between the President of the Security Council and the Secretary-General on 22 December 2000, 12 January 2001 and 31 January 2001 and noted that throughout the Security Council held the view that personal jurisdiction over persons who bear the greatest responsibility limited the ‘focus of the Special Court to those who played a leadership role’, and that, despite such wording, it ‘does not mean that the personal jurisdiction is limited to the political and military leaders only’. Therefore, ‘the determination of the meaning of the term “persons who bear the greatest responsibility” in any given case falls initially to the prosecutor and ultimately to the Special Court itself’. 42 The Trial Chamber noted the interpretation given by the Secretary-General to the President of the Security Council who said: 43 It is my understanding that, [...] the words ‘those leaders who ... threaten the establishment of and implementation of the peace process’ do not describe an element of the crime but rather provide guidance to the prosecutorial strategy. Consequently, the commission of any of the statutory crimes without necessarily threatening the establishment and implementation of the peace process would not detract from the international criminal responsibility otherwise entailed for the accused. Based upon the above, the Chamber found that ‘the issue of personal jurisdiction is a jurisdictional requirement, and that, while it does of course guide the prosecutorial strategy, it does not exclusively articulate the prosecutorial discretion’. 44 It is the judge who ultimately decides, based on sufficient evidence, to believe that a person bears the greatest responsibility. 45 The emphasis is that the phrase ‘persons who bear the greatest responsibility’ refers to the leaders both political and military who threatened the establishment of the court and of peace process in Sierra Leone. 42 See S/2000/1234 and S/2001/40 as quoted in Prosecutor v Fofana (n 36 above) paras 23- 24. 43 S/2001/40 para 3, as quoted in Prosecutor v Fofana (n 36 above) para 24. 44 Prosecutor v Fofana (n 36 above) para 27. 45 Prosecutor v Fofana and Kondewa (Case SCSL-04-14-T (TC)) Judgment 2 August 2007 para 91.
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Prosecuting International Crimes in
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1 2 TABLE OF CONTENTS FOREWORD ix C
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6 7 8 6 Relevance of the jurisprude
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12 13 14 4 Conclusion 246 PART IV:
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FOREWORD I write this foreword with
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CONTRIBUTORS Benson Olugbuo is a So
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1 INTRODUCTION Chacha Murungu* & Ja
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Introduction 3 The commission of in
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Introduction 5 Apart from internati
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Introduction 7 resort. The conclusi
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PART I: GENERAL ISSUES IN THE PROSE
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12 Chapter 1 oblige states to prose
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14 Chapter 1 3 The obligation to pr
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16 Chapter 1 perpetrators of these
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18 Chapter 1 namely, national, ethn
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20 Chapter 1 the International Crim
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22 Chapter 1 amnesties for serious
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24 Chapter 1 payment of compensatio
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26 Chapter 1 punish international c
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28 Chapter 1 notorious violations o
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30 Chapter 1 in the case of the cou
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CHAPTER 2 1 Introduction IMMUNITY O
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Immunity of state officials and pro
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Page 76 and 77: 64 Chapter 3 evidentiary areas of i
Page 78 and 79: 66 Chapter 3 pioneering effort in a
Page 80 and 81: 68 Chapter 3 particular group, the
Page 82 and 83: 70 Chapter 3 Indisputably, the abse
Page 84 and 85: 72 Chapter 3 The Akayesu judgment,
Page 86 and 87: 74 Chapter 3 particularly in light
Page 88 and 89: 76 Chapter 3 for the destruction of
Page 90 and 91: 78 Chapter 3 being of persons, in p
Page 92 and 93: 80 Chapter 3 conflict - the ‘war
Page 94 and 95: 82 Chapter 3 Chamber had itself fou
Page 96 and 97: 84 Chapter 3 found in the first pla
Page 98 and 99: 86 Chapter 3 of the Statute than
Page 100 and 101: 88 Chapter 3 The majority’s appro
Page 102 and 103: 90 Chapter 3 duties as a superior e
Page 104 and 105: 92 Chapter 3 present at the trial,
Page 106 and 107: 94 Chapter 3 international crimes.
Page 108 and 109: 96 Chapter 3 advanced nor argued an
Page 110 and 111: 98 Chapter 4 Unlike the Internation
Page 112 and 113: 100 Chapter 4 years imprisonment wh
Page 116 and 117: 104 Chapter 4 2.3 SCSL and the Trut
Page 118 and 119: 106 Chapter 4 who bear the greatest
Page 120 and 121: 108 Chapter 4 responsibility for in
Page 122 and 123: 110 Chapter 4 population’. 76 The
Page 124 and 125: 112 Chapter 4 2.5.1 Acts of terrori
Page 126 and 127: 114 Chapter 4 and Additional Protoc
Page 128 and 129: 116 Chapter 4 Essentially, there mu
Page 130 and 131: 118 Chapter 4 conscription of child
Page 132 and 133: 120 Chapter 5 The United Nations Se
Page 134 and 135: 122 Chapter 5 There are two main th
Page 136 and 137: 124 Chapter 5 goal of rehabilitatio
Page 138 and 139: 126 Chapter 5 that punitur quia pec
Page 140 and 141: 128 Chapter 5 circumstances of the
Page 142 and 143: 130 Chapter 5 retribution, deterren
Page 144 and 145: 132 Chapter 5 Another argument in t
Page 146 and 147: 134 Chapter 5 children. 111 Those o
Page 148 and 149: 136 Chapter 5 assessed’. 119 In m
Page 150 and 151: 138 Chapter 5 that there were no mi
Page 152 and 153: 140 Chapter 5 Santigie Borbor Kanu
Page 154 and 155: 142 Chapter 5 Chamber found no reas
Page 156 and 157: 144 Chapter 5 has adopted a tone th
Page 158 and 159: 146 Chapter 6 However, with the adv
Page 160 and 161: 148 Chapter 6 2. 1 Africa-ICC relat
Page 162 and 163: 150 Chapter 6 national elections, c
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152 Chapter 6 resolution may be ill
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154 Chapter 6 He has added that his
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156 Chapter 6 out of a desire to av
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158 Chapter 6 (b) US legislation to
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160 Chapter 6 encourage countries o
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CHAPTER 7 1 Introduction THE TRIAL
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The trial of Mengistu and other Der
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CHAPTER 8 1 Introduction THE TRIAL
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The trial of Hissène Habré in Sen
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CHAPTER 9 1 Introduction PROSECUTIN
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2 Genesis of the conflict Prosecuti
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Prosecuting international crimes by
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CHAPTER 10 1 Introduction GENOCIDE
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Genocide as prosecuted by the ICTR
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8 Reparations Genocide as prosecute
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234 Chapter 11 losses in excess of
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236 Chapter 11 piracy’. 14 In add
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238 Chapter 11 aircraft in accordan
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240 Chapter 11 and it is easy to av
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242 Chapter 11 phone. They took ove
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244 Chapter 11 3.3 Capacity problem
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246 Chapter 11 support us. They did
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CHAPTER 12 Benson 1 Introduction PO
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Positive complementarity and the fi
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278 Chapter 13 international crimin
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280 Chapter 13 Africa’s involveme
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282 Chapter 13 countries has tended
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284 Chapter 13 passed domesticating
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286 Chapter 13 crimes within their
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288 Chapter 13 offences. Procedural
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290 Chapter 13 Constitution, 62 thi
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292 Chapter 13 4.1.3 The law regula
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294 Chapter 13 either reciprocal or
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296 Chapter 13 committed to fightin
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298 Chapter 13 The procedure for th
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300 Chapter 13 trial. While the Rom
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302 Chapter 13 Having draft legisla
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CHAPTER 14 Lee 1 Introduction IMPLE
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Implementation of the Rome Statute
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Books SELECTED BIBLIOGRAPHY Allen,
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Selected bibliography 333 Neier A (
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Selected bibliography 335 Chitiyo,
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Selected bibliography 337 Jalloh, C
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Selected bibliography 339 Roht-Arri
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Selected bibliography 341 Report on
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Table of cases 343 Right of Passage
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Table of cases 345 Prosecutor v Vas
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Table of cases 347 Muhimana v Prose
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Table of cases 349 Prosecutor v Rut
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Table of cases 351 and the Governme
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Table of cases 353 Prosecutor v Ses
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Table of cases 355 GAOR, 45th Sess.
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Table of cases 357 R v Bow Street M
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360 Subject index Domestication ...
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362 Subject index S Selective justi
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