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

108 Chapter 4
responsibility for international crimes which they ordered or
committed’. 68
Amnesty functions as a transitional justice mechanism, especially in
post- conflict societies. As such it is in constant conflict with the demands
for justice for the victims of armed conflicts. The SCSL has approached the
question of amnesty carefully. The Statute of the SCSL does not recognise
amnesty granted to perpetrators who commit international crimes, 69 and
amnesty therefore is not a bar to prosecution. However, the Lomé Accord
signed between the rebel forces, particularly the RUF and the government
of Sierra Leone, contained a provision in article IX which granted amnesty
to all members of the rebel forces. It essentially barred prosecution of
perpetrators of international crimes committed in Sierra Leone. 70
However, it must be pointed out that the moral guarantors of the
agreement were non-contracting signatories of the Lomé Agreement. The
UN representative appended, in anticipatory avoidance of doubt, an
understanding of the extent of the agreement to be implemented as not
applicable to certain international crimes –particularly war crimes and
crimes against humanity. When members of the RUF were indicted, they
raised jurisdictional challenges on, among other things, the amnesty
granted to them by the Lomé Peace Agreement. They argued that the
SCSL was not supposed to prosecute them because of the amnesty
provisions under article IX of the Lomé Accord. This is not withstanding
the provisions of article 10 of the Statute of the SCSL.
The Appeals Chamber considered the question of amnesty. 71 Before
dealing with the validity of amnesty for international crimes, the Chamber
had to determine the status of the Lomé Agreement which was signed
between members of the RUF and the Government of Sierra Leone. It
concluded that the RUF did not have the status of a state; it was a mere
rebel faction in Sierra Leone. The Chamber considered whether the
agreement signed qualified as an international treaty and found that the
Lomé Agreement cannot be characterised as such. The Chamber stated
emphatically that ‘the Lomé Agreement is neither a treaty nor an
agreement in the nature of a treaty.’ 72 Regarding the relevancy of amnesty
to international crimes, the Chamber concluded that 73
the amnesty granted by Sierra Leone cannot cover crimes under international
law that are the subject of universal jurisdiction ... It is clear that the question
68 As above.
69 Art 10 Statute of the SCSL.
70 O’Shea (n 58 above) 1-2.
71 Prosecutor v Kallon, Kamara paras 67-73, 80, 84 and 88.
72 As above, paras 39-49; Prosecutor v Gbao Case SCSL-04-14-AR72, Decision on
Preliminary Motion on the Invalidity of the Agreement between the United Nations
and the Government of Sierra Leone on the Establishment of the Special Court, 25
May 2004 (Appeals Chamber).
73 Prosecutor v Kallon, Kamara paras 71-72.