Jalloh: The Legal Legacy of the Special Court for Sierra Leone

Charles C. Jalloh (Florida International Univ. - Law) has published The Legal Legacy of the Special Court for Sierra Leone (Cambridge Univ. Press 2020). Here's the abstract:

This important book considers whether the Special Court for Sierra Leone (SCSL), which was established jointly through an unprecedented bilateral treaty between the United Nations (UN) and Sierra Leone in 2002, has made jurisprudential contributions to the development of the nascent and still unsettled field of international criminal law. A leading authority on the application of international criminal justice in Africa, Charles Jalloh argues that the SCSL, as an innovative hybrid international penal tribunal, made useful jurisprudential additions on key legal questions concerning greatest responsibility jurisdiction, the war crime of child recruitment, forced marriage as a crime against humanity, amnesty, immunity and the relationship between truth commissions and criminal courts. He demonstrates that some of the SCSL case law broke new ground, and in so doing, bequeathed a 'legal legacy' that remains vital to the ongoing global fight against impunity for atrocity crimes and to the continued development of modern international criminal law.

Hillebrecht: International Criminal Accountability and the Domestic Politics of Resistance: Case Studies from Kenya and Lebanon

Courtney Hillebrecht (Univ. of Nebraska, Lincoln - Political Science) has published International Criminal Accountability and the Domestic Politics of Resistance: Case Studies from Kenya and Lebanon (Law & Society Review, Vol. 54, no. 2, pp. 453-486, June 2020). Here's the abstract:

Contemporary international criminal law suggests that head of state immunity does not extend to atrocity crimes, but the executive's office continues to be the safest place for suspected perpetrators. Moreover, indicted suspects can use the threat of international accountability to win democratically contested elections. This article asks how suspects and their surrogates translate an indictment from an international criminal tribunal into an electoral victory and suggests that the path between an indictment and electoral victory unfolds in one of two ways: (1) the consolidation of existing coalitions around the indicted suspects and their allies; or (2) the creation of new coalitions that span existing cleavages. The article evaluates these assumptions through two cases: Lebanon and the Special Tribunal for Lebanon and Kenya and the International Criminal Court. These two decidedly different cases exemplify the ways in which coalitional politics shield suspects international accountability and reward them with high office.

Rodman: Intervention and the ‘Justice Cascade’: Lessons from the Special Court for Sierra Leone on Prosecution and Civil War

Kenneth A. Rodman (Colby College - Government) has posted Intervention and the ‘Justice Cascade’: Lessons from the Special Court for Sierra Leone on Prosecution and Civil War (Human Rights Review, forthcoming). Here's the abstract:

In the ‘Justice Cascade’, Kathryn Sikkink argues that “foreign prosecutions and international tribunals can be cost-effective alternatives to military intervention.” Yet, the successes of the Special Court for Sierra Leone—in prosecuting former Liberian President Charles Taylor and in imposing accountability on the leaders of all armed groups regardless of political alignment—were dependent on a commitment by Western powers and international and regional organizations to a military victory against the rebels in Sierra Leone and coercive regime change in Liberia. The lesson that should be drawn from this case—which parallels that of other international tribunals set up during ongoing violence—is that the prospects for international criminal justice during civil wars are dependent on the political strategies adopted by outsiders to address the conflict and that taking criminal accountability seriously requires an interventionist rather than a consent-based approach to conflict resolution.

Jalloh: The Sierra Leone Special Court and its Legacy: The Impact for Africa and International Criminal Law

Charles Chernor Jalloh (Univ. of Pittsburgh - Law) has published The Sierra Leone Special Court and its Legacy: The Impact for Africa and International Criminal Law (Cambridge Univ. Press 2014). The table of contents is here. Here's the abstract:

The Special Court for Sierra Leone (SCSL) is the third modern international criminal tribunal supported by the United Nations and the first to be situated where the crimes were committed. This timely, important, and comprehensive book is the first to critically assess the impact and legacy of the SCSL for Africa and international criminal law. The collection, containing 37 original chapters from leading scholars and respected practitioners with inside knowledge of the tribunal, analyzes cutting-edge and controversial issues with significant implications for international criminal law and transitional justice. These include joint criminal enterprise; the novel crime against humanity of forced marriage; the war crime prohibiting enlisting and using child soldiers in the first court to prosecute that offense; the prosecution of the war crime of attacks against United Nations peacekeepers in the first tribunal where this offense was prosecuted; the tension between truth commissions and criminal trials in the first country to simultaneously have the two; and the questions of whether it is permissible under international law for states to unilaterally confer blanket amnesties to local perpetrators of universally condemned international crimes, whether the immunities enjoyed by an incumbent head of a third state bars his prosecution before an ad hoc treaty-based international criminal court, and whether such courts may be funded by donations from states without compromising judicial independence.

Jalloh: Prosecuting Those Bearing 'Greatest Responsibility': The Lessons of the Special Court for Sierra Leone

Charles C. Jalloh (Univ. of Pittsburgh - Law) has posted Prosecuting Those Bearing 'Greatest Responsibility': The Lessons of the Special Court for Sierra Leone (Marquette Law Review, Vol. 96, p. 863, 2013). Here's the abstract:

This Article examines the controversial article 1(1) of the Statute of the Special Court for Sierra Leone (SCSL) giving that tribunal the competence “to prosecute those who bear the greatest responsibility” for serious international and domestic crimes committed during the latter part of the notoriously brutal Sierra Leonean conflict. The debate that arose during the SCSL trials was whether this bare statement constituted a jurisdictional requirement that the prosecution must prove beyond a reasonable doubt or merely a type of guideline for the exercise of prosecutorial discretion. The judges of the court split on the issue. This paper is the first to critically assess the reasons why the tribunal’s judges disagreed in the interpretation of this seemingly simple legal question. It then attempts to discern the common ground in the judicial reasoning, and argues that the ultimate conclusion that “greatest responsibility” implied that leaders as well as the worst killers may be prosecuted is a welcome jurisprudential contribution to our understanding of personal jurisdiction in international criminal law. The paper makes several contributions to the literature. First, it takes up and highlights a widely ignored but important legal question. Second, it demonstrates why the reasoning of the Appeals Chamber was results-oriented and wrong. Finally, it identifies the lessons of Sierra Leone and builds on them to offer preliminary recommendations on how the greatest responsibility conundrum can be avoided when drafting personal jurisdiction clauses for future ad hoc international penal tribunals.

Njikam: The Contribution of the Special Court for Sierra Leone to the Development of International Humanitarian Law

Ousman Njikam has published The Contribution of the Special Court for Sierra Leone to the Development of International Humanitarian Law (Duncker & Humblot 2013). Here's the abstract:

The Special Court marked a new approach by the international community to violations of international humanitarian law. Its mode of creation i.e. through an agreement between the UN and the Government of Sierra Leone – as compared to the UN ad hoc Tribunals that were established pursuant to Chapter VII of the UN Charter was a particularity of the Court. It is the only international court that possesses concurrent, primary and complimentary jurisdiction. The objective of this thesis is to provide a comprehensive analysis of the contribution of the Special Court to the development of international humanitarian law. Similar to its predecessors (ad hoc Tribunals), the Special Court consolidated the principle under international law of individual criminal responsibility. The author evaluates the Special Court's mandate to »prosecute those who ›bear the greatest responsibility‹ as being in itself a contribution to the development of international humanitarian law since the ICTY and ICTR at the time of their inception did not have this limitation rationae personae / prosecutorial discretion.« The author assesses some of the interesting and challenging issues dealt with such as the recruitment of child soldiers, amnesty for international crimes, head of state immunity and the crime of forced marriage. The author concludes that the Special Court contributed albeit to a limited extent to the development of international humanitarian law.

Heller: The Taylor Sentencing Judgment: A Critical Analysis

Kevin Jon Heller (Univ. of Melbourne - Law) has posted The Taylor Sentencing Judgment: A Critical Analysis (Journal of International Criminal Justice, forthcoming). Here's the abstract:

On 30 May 2012, despite concluding that he was liable for crimes committed in Sierra Leone only as an accessory, Trial Chamber II of the Special Court for Sierra Leone (SCSL) sentenced Charles Taylor to 50 years imprisonment – the second longest sentence in the Tribunal’s history. This article provides a critical analysis of Taylor’s sentence, asking whether it comports with the principle – widely accepted by international tribunals – that a sentence is unjustified if it is ‘out of reasonable proportion with a line of sentences passed in similar circumstances for the same offences’. The article concludes that Taylor’s sentence is, in fact disproportionate in comparison to other sentences imposed by the SCSL – Augustine Gbao’s 25-year sentence in particular.

In reaching that conclusion, the article is mindful of how difficult it is to reliably compare sentences. Sentencing is highly discretionary, and no two cases are ever completely alike. Moreover, sentencing judgments rarely explain in a systematic way how the judges have decided upon a particular sentence; as Boas et al. have noted, ‘it often seems as though the trial chamber has simply pulled the number out of the air’. The Taylor Sentencing Judgment, unfortunately, is no exception. A mere 40 pages long – in contrast to the 2,499-page Trial Judgment – it discusses the gravity of Taylor’s offences, his individual circumstances, and the relevant aggravating and mitigating factors, but makes little attempt to explain why those factors require a 50-year sentence.

The article itself is divided into four sections. Section 1 provides a brief summary of the Sentencing Judgment. Section 2 explains why the Trial Chamber has overestimated the gravity of Taylor’s offenses. Section 3 argues that the Trial Chamber misapplied a number of aggravating factors and impermissibly double-counted others. Finally, Section 4 criticizes the Trial Chamber’s refusal to consider Taylor’s contributions to the Sierra Leone peace process as a mitigating factor.

Kelsall: Culture under Cross-Examination: International Justice and the Special Court for Sierra Leone

Tim Kelsall (Berkeley War Crimes Studies Center) has published Culture under Cross-Examination: International Justice and the Special Court for Sierra Leone (Cambridge Univ. Press 2012). Here's the abstract:

The international community created the Special Court for Sierra Leone to prosecute those who bore the greatest responsibility for crimes committed during the country's devastating civil war. Tim Kelsall examines some of the challenges posed by the fact that the Court operated in a largely unfamiliar culture, in which the way local people thought about rights, agency and truth-telling sometimes differed radically from the way international lawyers think about these things. By applying an anthro-political perspective to the trials, he unveils a variety of ethical, epistemological, jurisprudential and procedural problems, arguing that although touted as a promising hybrid, the Court failed in crucial ways to adapt to the local culture concerned. Culture matters, and international justice requires a more dialogical, multicultural approach.

Conference: Assessing the Contributions and Legacy of the Special Court for Sierra Leone to Africa and International Criminal Justice

On April 19-21, 2012, the University of Pittsburgh School of Law will host a conference on "Assessing the Contributions and Legacy of the Special Court for Sierra Leone to Africa and International Criminal Justice." The program is here. Here's the idea:

The University of Pittsburgh School of Law is pleased to announce that it will be holding an international conference assessing the contributions and legacy of the Special Court of Sierra Leone (SCSL) to Africa and International Criminal Justice in Pittsburgh, Pennsylvania, from Thursday April 19, 2012 through Saturday April 21, 2012.

The SCSL was established through signature of an unprecedented bilateral treaty concluded between the United Nations and the Government of Sierra Leone in January 2002. With a general mandate to deliver credible justice for the atrocities experienced in the small West African nation during a decade long civil war, the SCSL was designed to serve as an improvement on the existing ad hoc criminal tribunal model first deployed by the UN Security Council to address international crimes in the former Yugoslavia and Rwanda in 1993 and 1994 respectively.

For this reason, among others, the Statute of the SCSL contained many novel features. As part of this, it was the first independent tribunal to be given a circumscribed personal jurisdiction to prosecute only those “bearing greatest responsibility” for serious international/national crimes; the first modern tribunal to sit in the locus criminis – the place where the crimes were committed; the first to be funded entirely through voluntary contributions from UN member states; the first to be overseen by an independent management committee comprised of non-party states; the first to provide scope for the affected state (Sierra Leone) to appoint some of its principal officials, such as, some judges and the deputy prosecutor; as well as the first to operate alongside a truth and reconciliation commission in a post-conflict situation anywhere in the world.

Today, the SCSL, which was touted early on as a model for future ad hoc criminal tribunals, has completed all but one of its trials and therefore significantly wound down its operations. Only the trial of former Liberian President Charles Taylor remains on its docket. And even that case is expected to conclude, with all appeals, by mid-2012. In light of its pending closure, it is opportune to plan an assessment of the SCSL’s contribution and legacy both to Sierra Leoneans, in whose name it was asked to render impartial justice, and the international community, whose generous anti-impunity dollars made its work possible.

Essentially, as the SCSL becomes the first of the ad hoc international criminal tribunals to close down, we seek to provide a timely forum for those most familiar with and interested in its work to critically reflect on its contribution to Sierra Leone, Africa and international criminal justice. While memories are still fresh, up to 50 participants will be afforded a chance to step back and reflect on what worked, and what did not, and to capture, for posterity, their years of accumulated wisdom.

Consistent with its hybrid structure, the conference will aim to reflect the dual national and international character and ownership of the SCSL process. It will therefore elicit both Sierra Leonean and international perspectives on the successes and limitations of the SCSL, as well as identify a series of lessons learned for other African post-conflict situations and the International Criminal Court. As such, it will bring together a carefully selected list of invited academics, tribunal practitioners, policy-makers and civil society actors who have all participated, collaborated with, or closely followed, the work of the SCSL from its earliest days through to its twilight days.

In view of this focus, the conference will largely take up technical, big picture issues that are the domain of legal academic and practitioner experts in the international criminal law field. The areas of coverage will include, among others, the advantages and disadvantages of voluntary funding for future ad hoc courts; the successes, and limitations, of SCSL institutional innovations such as the Office of the Principal Defender and the Outreach Section; and the strengths and weaknesses of the institutional and jurisprudential contributions that the Court’s decisions and judgments have made to the trans-judicial dialogue on international criminal law and justice.

By convening the participants and experts to carry out the first and unprecedented early assessment of the work of the Sierra Leone tribunal, the third major UN-sponsored international penal court, it is expected that this conference and its outputs will make a valuable contribution to existing knowledge regarding the potential, and limits, of one of the more significant internationally supported anti-impunity initiatives in post-Cold War era Africa.

Ford: How Special is the Special Court's Outreach Section?

Stuart Ford (The John Marshall Law School, Chicago) has posted How Special is the Special Court's Outreach Section? Here's the abstract:

This article attempts to evaluate the work of the Outreach Section of the Special Court for Sierra Leone. It begins with a brief history of the Outreach Section’s work. Then it discusses the methods and accomplishments of the Section, including its effect on outreach programs at other international criminal courts. Finally, I try to answer two questions: (1) how innovative was the Outreach Section?; and (2) has the Outreach Section been successful? In contrast to earlier commentators, I try to answer these questions using empirical data, including Sierra Leonean attitudes toward and knowledge about the court as measured in various surveys. I conclude that the Outreach Section has been modestly innovative, but that it has largely failed in its primary goal of educating Sierra Leoneans about the Special Court – while virtually all Sierra Leoneans are aware of the existence of the Special Court, very few have a good understanding of what it does.

Kelsall: Culture under Cross-Examination: International Justice and the Special Court for Sierra Leone

Tim Kelsall (Berkeley War Crimes Studies Center) has published Culture under Cross-Examination: International Justice and the Special Court for Sierra Leone (Cambridge Univ. Press 2009). Here's the abstract:

The international community created the Special Court for Sierra Leone to prosecute those who bore the greatest responsibility for crimes committed during the country’s devastating civil war. Tim Kelsall examines some of the challenges posed by the fact that the Court operated in a largely unfamiliar culture, in which the way local people thought about rights, agency and truth-telling sometimes differed radically from the way international lawyers think about these things. By applying an anthro-political perspective to the trials, he unveils a variety of ethical, epistemological, jurisprudential and procedural problems, arguing that although touted as a promising hybrid, the Court failed in crucial ways to adapt to the local culture concerned. Culture matters, and international justice requires a more dialogical, multicultural approach.

Annual Report of the Special Court for Sierra Leone

The Annual Report of the Special Court for Sierra Leone, covering the period June 2007 to May 2008, is now available here.

SCSL: Prosecutor v. Fofana and Kondewa

On Wedesnday, May 28, the Appeals Chamber of the Special Court for Sierra Leone revised the convictions and sentences of Moinina Fofana and Allieu Kondewa, who were leaders of the Civil Defence Forces during Sierra Leone’s civil war. (Appeals Chamber judgment here; indictment here; summary of the charges here; Trial Chamber judgment here.) The Court's press release summarizes the ruling:

The Special Court Appeals Chamber, in a majority Judgment, today overturned convictions imposed by the Trial Chamber against Moinina Fofana and Allieu Kondewa for collective punishments and against Kondewa for recruiting of child soldiers. The Appeals Chamber, by a majority, also entered two new convictions against both men for murder and inhumane acts as crimes against humanity.

In the Judgment, the majority of the Appeals Chamber upheld Trial Chamber convictions of the two men on counts of murder and cruel treatment as war crimes, but increased their sentences substantially. Fofana, who had been sentenced by the Trial Chamber to concurrent sentences totalling six years, has now been sentenced to fifteen years. Kondewa’s total sentence was increased from eight to twenty years.

The Judges considered nine grounds of appeal by the Prosecution and six grounds by Allieu Kondewa. Moinina Fofana did not appeal his conviction or sentence, but he was a respondent to the Prosecution appeals.

The Appeals Chamber majority reversed acquittals by the Trial Chamber on counts 1 and 3 of the indictment, for murder and inhumane acts as crimes against humanity, granting the Prosecution’s appeal that the CDF had directed attacks against a civilian population, and not just against military targets.

The Appeals Chamber, again by majority, sustained war crimes convictions on counts 2 and 4 for murder and cruel treatment, but increased the sentences. The Judges, however, unanimously overturned Kondewa’s conviction for murder in Talia.

On count 5, pillage as a war crime, the majority of the Judges sustained the Trial Chamber’s conviction of Kondewa based on acts committed in Bonthe District, but said the Trial Chamber erred when it convicted him of acts committed in Moyamba District.

The five Judges unanimously upheld the Trial Chamber’s acquittal of the two men on Count 6, acts of terrorism as a war crime.

The majority of the Appeals Chamber reversed the two men’s convictions on Count 7, collective punishments as a war crime, concluding that the Trial Chamber had erred in its definition of the crime.

The majority also reversed Kondewa’s conviction on Count 8, for the enlistment of children under the age of 15 as combatants.

The Appeals Chamber, by a majority, held that the Trial Chamber erred in considering political motives or fighting in a "just cause" as mitigating factors in sentencing.

Dissenting opinions were read out by Justice George Gelaga-King on convictions and sentencing, by Justice Jon Kamanda on sentencing, and by Justice Renate Winter in relation to the enlistment of child soldiers, collective punishments, and politically mitigating circumstances.

NY Times on Taylor Trial

In today's New York Times, reporter Marlise Simons writes about the delays in Charles Taylor trial at the Special Court for Sierra Leone (sitting in The Hague). A taste:

When Charles Taylor, the former president of Liberia, was arrested 17 months ago on war crimes charges and ordered to face international judges, it was heralded as a milestone for justice in Africa. His trial, the first war crimes trial for an African president, was to start in April. But having barely begun, the case has already lost its momentum. Last Monday, hearings were postponed for the fourth time this year, and the court is now set to reconvene in January.