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

Prosecution and punishment of international crimes by the Special Court for Sierra Leone 109
whether amnesty is unlawful under international law becomes relevant only
in considering the question whether article IX of the Lomé Agreement can
constitute a legal bar to prosecution of the defendants by another State or by
an international tribunal.
The Appeals Chamber concluded that amnesty is not a bar to prosecution.
It found that article 10 of the Statute of the SCSL does not recognise
amnesty granted to accused persons. It restated the position that there was
no bad faith in article 10 of the Statute of the SCSL, and that there was a
clear statement in the preamble to Resolution 1315 (2000) of the Security
Council that: 74
The Special Representative of the Secretary-General appended to his
signature of the Lomé Agreement a statement that the United Nations holds
the understanding that the amnesty provisions of the Agreement shall not
apply to international crimes of genocide, crimes against humanity, war
crimes and other serious violations of international humanitarian law.
Further, the Chamber noted that amnesty was only intended to apply to
national courts and not the SCSL. It decided that, 75
[w]hatever effect the amnesty granted in the Lomé Agreement may have on a
prosecution for such crimes as are contained in Articles 2 to 4 in the national
courts of Sierra Leone, it is ineffective in removing the universal jurisdiction
to prosecute persons accused of such crimes that other states have by reason
of the nature of the crimes. It is also ineffective in depriving an international
court such as the Special Court of jurisdiction.
Hence, the Appeals Chamber confirmed the international law position that
amnesty cannot bar the prosecution of perpetrators of international crimes
before international courts.
2.5 Crimes against humanity and war crimes: A general
interpretation
The SCSL defined elements of ‘crimes against humanity’ and ‘war crimes’.
In this section the court’s definition and interpretation of such crimes are
highlighted. In light of article 2 of the Statute of the SCSL, the court held
that elements of crimes against humanity are that: ‘there must be an attack;
acts of the accused person must be part of the attack; the attack must be
directed against any civilian population; the attack must be widespread or
systematic; and the accused must know that his acts constitute part of a
pattern of widespread or systematic crimes directed against a civilian
74
Para 81.
75 Prosecutor v Kallon, Kamara para 88.