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

114 Chapter 4
and Additional Protocol II, both of which apply to internal armed
conflicts. Given its pari materia nature with article 3 of the Geneva
Conventions and Additional Protocol II, the Chamber concluded that
article 3 of the Statute of the SCSL applies to internal armed conflicts. 101
Article 3 common to the Geneva Conventions and Additional Protocol II
forms part of customary international law applicable to both international
and non-international armed conflicts. 102
The Chamber held that all parties to the armed conflict - whether state
or non-state actors – are bound by international humanitarian law. 103
Regardless of the unanimity of international law theorists and lawyers on
the duty of insurgents to observe the provisions of article 3 common to the
Geneva Conventions, ‘there is now no doubt that this article is binding on
states and insurgents alike and that insurgents are subject to international
law’. 104 Hence, even armed groups have to respect international
humanitarian law. Taken in this way, all parties to the armed conflict in
Sierra Leone were bound to respect international humanitarian law.
2.7 Criminal responsibility for international crimes
The SCSL issued decisions that contribute to the principle of criminal
responsibility. Three types of criminal responsibility for international
crimes are examined here: individual criminal responsibility, superior
responsibility and command responsibility.
2.7.1 Individual criminal responsibility
The Appeals Chamber provided a test to determine whether a violation of
international humanitarian law is subject to criminal responsibility. With
regards to individual criminal responsibility, the Chamber set specific
requirements for a crime to attract individual criminal responsibility under
article 6(1) of the Statute of the SCSL. The following are the requirements:
‘the violation must constitute an infringement of a rule of international
humanitarian law’; ‘the rule must be customary in nature or, if it belongs
to treaty law, the required conditions must be met’; ‘the violation must be
“serious”, that is to say, it must constitute a breach of a rule protecting
important values, and the breach must involve grave consequences for the
victim […]’ and; ‘the violation of the rule must entail, under customary or
conventional law, the individual criminal responsibility of the person
101 Prosecutor v Fofana para 20.
102 Prosecutor v Fofana paras 21-27; see also paras 18-20.
103 Prosecutor v Norman Decision on preliminary motion based on lack of jurisdiction (child
recruitment) 31 May 2004 paras 22-23.
104 Prosecutor v Kallon and Kamara para 45.