By Mohamed Kunowah-Tinu Kiellow, The Netherlands.
On the 7th of July 1999 the government of Sierra Leone, in a dire need for peace in Sierra Leone, signed a peace treaty with the RUF at Lomé in Togo. A peace agreement that would bring a halt to the bloodletting war that had eaten into the political, social and economic fabric of the society of Sierra Leone. Resolution 1260 of 20 August 1999 welcomed the signing of the above-mentioned Lomé Peace accord, which was meant to put an end to almost ten years of fighting in Sierra Leone, and commended the government for its courageous efforts to achieve peace through legislative and other means already taken towards the implementation of the Lomé Peace Agreement.
A year later the permanent representative of Sierra Leone to the UN wrote a letter to the president of the Security Council advocating for a special court for Sierra Leone to try members of the RUF. On August 14, 2000 the UN Security Council at its 4185th meeting in New York adopted Resolution 1315(2000) that mandated for the setting up of a Special Court in Sierra Leone. The Secretary General was asked to negotiate an agreement with the government of Sierra Leone to create an independent Special Court consistent with this resolution. On January 16, the government of Sierra Leone officially signed the establishment of a United Nations-sponsored special court to try those who bear the greatest responsibility for atrocities perpetrated during the civil war.
Resolution 1315 of 14 of August 2000 was in sharp contrast with the resolution on Sierra Leone passed by the council a year earlier. In this paper effort will be made to give an answer the key question: Is the setting up of the Special Court not in contravention of Lomé Peace Agreement?
Article 1 of the Statute stipulates the court’s temporal and personal jurisdiction: the Court shall have jurisdiction over those persons who bear the greatest responsibility for serious violations of international and humanitarian law committed in Sierra Leone since 30 November 1996(the time of signing the first peace treaty between the rebels and the government: the Abidjan Agreement).
The jurisdiction ratione temporae runs from 30 November 1996, the date of an earlier ceasefire - the Abidjan Accord - that also provided for an amnesty.
Articles 2 and 5 of the Statute deal with jurisdiction ratione materiae, and cover three sets of crimes: crimes against humanity; violations of law applicable in internal armed conflicts and certain crimes under Sierra Leonean law. Generally speaking, the Special Court has personal jurisdiction (Ratione Personae) over persons most responsible for serious violations of international humanitarian law and Sierra Leonean law committed in Sierra Leone since 30th November 1996.
In order to appease the rebels, concessions were made to the rebels. One of the most important concessions was a blanket amnesty to all rebels. Article IX of the Lomé Agreement made this broad concession. At the signing of the Lomé Agreement in July, 1999 it was widely accepted by the UN, the government of Sierra Leone and the governments of other countries involved that the price of peace was complete impunity for all those who had committed serious violations of international humanitarian law. In the Peace Agreement no means of judicial accountability was provided for to try the violators of international and national laws. The only means of non-judicial accountability provided was the Truth and Reconciliation Commission. The RUF would have refused to sign the Agreement if the government had insisted on including in it a provision for judicial action against the RUF and had excluded the amnesty provision from the Agreement.
However, it must be pointed out that at the signing of the Lomé Agreement, strong reservations were made against the Agreement by the UN Representative concerning its amnesty provisions. The sum total of the reservations relating to the amnesty provision was that the Agreement was concluded without prejudice to the right of the UN to take other appropriate action to address the issue of impunity in relation to gross violations of international humanitarian law, war crimes and crimes against humanity. The UN Special representative made it crystal clear at the signing ceremony that the amnesty clause “shall not apply to the international crimes of genocide, crimes against humanity, war crimes and other serious violations of international humanitarian law. This standpoint of the UN Representative was later buttressed by a landmark decision made by the Appeals Chamber in The Prosecutor v. Morris Kallon and Brima Buzzy Kamara case. The Chamber reaffirmed that “an amnesty granted to any person falling within the jurisdiction of the Special Court in respect of the
crimes referred to in articles 2 to 4 of the present Statute shall not be a bar to
prosecution.” Moreover, the grant of an amnesty for international crimes therefore is not only in breach of international law, “but is in breach of an obligation of a State towards the international community as a whole.”
Furthermore, the RUF leadership had since the signing of the Accord reneged on that Agreement, and had resumed the atrocities, which have always had as their targets mainly civilians, including women and children. They still murdered and amputated them and used the women and children as sex slaves. They also abducted over 500 United Nations peacekeepers and seized arms, weapons and uniforms, and even killed some of the peacekeepers. All this took place in spite of both sides’ commitment to adhere to the Agreement. This was a grave violation of the Agreement, which makes the amnesty provisions invalid and no longer applicable.
Moreover, the doubts about the applicability of the Lomé amnesty clause to serious crimes were removed by article 10 of the Statute of the Special Court for Sierra Leone, which provides that amnesty does not bar the prosecution of crimes contained in articles 2 and 4 of the Statute, namely crimes against humanity (art. 2), violations of article 3 common to the Geneva Conventions and Additional Protocol II (art. 3) and other serious violations of international humanitarian Law (art. 4).
Additionally, the amnesty granted by that Agreement was only in respect of violations of Sierra Leone domestic law before the 7th of July 1999, and not after that date. The amnesty is only valid as from the beginning of the war up to 7th July 1999. There was no amnesty for the violation of Sierra Leonean law committed after 7 July 1999.
Lastly, it must be noted that Article 6(5) of the Second Additional Protocol relating to the protection of victims of non-international armed conflicts requests authorities in power ‘to endeavour to grant the broadest possible amnesty to persons who have participated in the armed conflict, or those deprived of their liberty for reasons related to the armed conflict, whether they are interned or detained”. This provision, however, relates to the particular nature of armed conflicts within a state. It aims to assimilate combatants in such conflicts with those of international conflicts, who are usually not prosecuted for normal combating activities (unless they violate humanitarian law). Thus, the intention of this provision is not to grant immunity from prosecution for breaches of humanitarian law. The amnesty provisions in Lomé Accord are therefore illegal because the atrocities committed by the RUF happened during non-combatant activities. Besides, the crimes were committed against civilians who were no combatants.
Conclusion
The Special Court was cut out in order to try those most responsible for the commission of international crimes and crimes under Sierra Leonean Law on the territory of Sierra Leone. The Court has personal jurisdiction-persons who bear the greatest responsibility or the serious violations of international humanitarian law, temporal jurisdiction-crimes committed since 30 November 1996-, and ratione materiae-crimes against humanity; violations of the law applicable in internal conflicts; and certain crimes under Sierra Leonean law. The Special Court was preceded by the Lomé Peace Accord, which grant blanket amnesty to the rebels.
From the onset of the peace treaty, the UN had constantly maintained the position that the amnesty granted to the rebels was not applicable to international crimes. Moreover, the amnesty granted by the Accord was only in respect of violations of Sierra Leone domestic law before 7 July 1999. Thus the Court does not have jurisdiction over national crimes committed between 30th November 1996 and 7th July 1999. But it has jurisdiction over crimes under national law committed after this date. In addition, the RUF violated the peace deal, which made the amnesty provision inapplicable. Most importantly, the Lomé peace is illegal because it is contravention of Geneva Conventions, which provide no amnesty to violators of international humanitarian law.
It is at this stage very clear that the setting up of the Special Court is not in violation of the Lomé Peace Accord and the amnesty accorded by it. Therefore the amnesty granted to the RUF could not act as impediments to trial of people “most responsible for serious violations of international humanitarian law on the territory of Sierra Leone. However, the amnesty granted in respect of crimes committed under Sierra Leonean law between 30th November 1996 and 7 July 1999 can block trial of the war criminals.
About the author:
The autho(photo)r holds a combined LLM in International Law and Criminal Law, a certificate in French Language and Culture, a certificate in Criminology from Utrecht University, The Netherlands. He also holds a Postgraduate Associate certificate in Law from the University of East London. He works as a Project Legal Adviser.
Comments