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

Prosecution and punishment of international crimes by the Special Court for Sierra Leone 111
treatment’ may not necessarily amount to the elements of torture, but that
‘torture, could encompass those acts that individually or collectively,
constitute what is considered as being inhuman and degrading’. 84 The
court found that ‘other inhuman acts’ – inhuman and degrading treatment
– falls within crimes against humanity. 85
With regards to war crimes, relying on article 3 of the Statute of the
SCSL, the court elaborated on the elements of war crimes 86 as those
similar to the provision of article 3 common to the Geneva Conventions
and of Additional Protocol II. The Trial Chamber held that article 3 of the
Statute requires that ‘acts of the accused be committed in the course of an
armed conflict’ 87 regardless of whether it is an international or noninternational
armed conflict. Hence, the court only needs to be satisfied
that an armed conflict existed and the acts were committed during that
armed conflict. 88 Normally, ‘an armed conflict exists whenever there is a
resort to armed force between states or protracted armed violence between
governmental authorities and organised armed groups or between such
groups within a state’. 89 Generally, for war crimes to be found, there must
be a nexus between the alleged violation against victims and the armed
conflict. Also, the crime must be committed against a victim who is not
taking direct part in the armed conflict. The accused must know or must
have had a reason to know that the victim was not taking part in the armed
conflict at the time of commission of the crime. 90
After the preceding general interpretation of war crimes and crimes
against humanity, the next section deals with selected specific crimes –
which fall under crimes against humanity and war crimes. Although the
SCSL has contributed immensely in developing jurisprudence on war
crimes and crimes against humanity, its peculiarity lies in the new crimes
it has dealt with. These crimes include rape; enforced prostitution; forced
pregnancy; sexual slavery and forced marriage; the conscription of
children into armed forces; acts of terrorism; attacks against peacekeepers;
and pillage. These crimes are novel in international law. Sexual violence
and forced marriage crimes are not discussed here.
84 Prosecutor v Sankoh (Case SCSL-03-02-PT) Ruling on the motion for a stay of
85
86
87
proceedings filed by the applicant, 22 July 2003 9.
Prosecutor v Sankoh (as above) 9-11.
Prosecutor v Fofana and Kondewa para 122-137.
Prosecutor v Norman, Fofana and Kondewa paras 68-70. But see also paras 72-73 (murder);
paras 93-95 (cruel treatment); paras 116-118 (collective punishment); paras 109-112
88
(acts of terror); and para 102 (pillage).
Prosecutor v Fofana Decision on preliminary motion on lack of jurisdiction materiae:
89
Nature of the armed conflict, Appeals Chamber of the SCSL, 25 May 2004 para 25.
Prosecutor v Norman, Fofana and Kondewa para 69 (citing Prosecutor v Tadic Decision on
defence motion for interlocutory appeal on jurisdiction, Appeals Chamber of the ICTY,
90
2 October 1995, para 70).
Prosecutor v Fofana and Kondewa para 122.