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

Prosecution and punishment of international crimes by the Special Court for Sierra Leone 117
2.7.4 Command responsibility
Command responsibility is the third form of liability under article 6(3) of
the Statute of the SCSL. This form of responsibility has been used by the
SCSL in many cases, 118 and the court has applied settled jurisprudence of
the ICTY and ICTR on command responsibility. 119 Command
responsibility is customary international law, and applies to both
international and non-international armed conflicts. In this theory of
liability, there must be a direct or indirect commander and subordinate
relationship (hierarchy or chain of command), the commander must
exercise effective de facto or de jure control over the subordinates, and it is
applicable only to military commanders and all persons exercising
command control over their subordinates. The mens rea in command
responsibility is the knowledge and reason to know that subordinates were
about to or had committed crimes, and the commander failed to take the
necessary measures to punish or prevent the crimes committed. This
applies to both civilian and military leaders. 120
3 Conclusion
This chapter has covered the contribution of the SCSL to the development
of new principles of international law. Although the court has contributed
significantly in many aspects, the chapter dealt with specific aspects only.
In this regard, other important aspects - such as the right to bail for accused
persons charged with international crimes; joinder of accused persons;
requirement and contents of indictments; and the question of impartiality
of judges of international courts - have been left out in this chapter. The
main contributions of the court covered in this chapter include clarification
of international law concepts and principles mostly found in the Statute of
the SCSL, new developments on war crimes and crimes against humanity.
The court has developed law on persons who bear the greatest
responsibility for international crimes, joint criminal enterprise, and the
immunity of state officials charged with international crimes. It has also
dealt with the relationship between transitional justice mechanisms such as
amnesty and Truth and Reconciliation Commissions and international
courts established to prosecute international crimes. It has echoed that the
two mechanisms are complementary to each other in post-conflict
societies. However, the court has emphasised that amnesty cannot bar the
prosecution of persons for international crimes. Further, the court has
contributed to international law in the areas of acts of terrorism, rape and
other forms of sexual violence, enforced pregnancy and forced marriage,
118 Prosecutor v Fofana and Kondewa paras 42-44.
119 Prosecutor v Norman para 20.
120 Prosecutor v Blagojević and Jokić ICTY Trial Chamber Judgment of 17 January 2005 para
791; Prosecutor v Blaškić ICTY Trial Chamber Judgment of 3 March 2000 paras 300-301.