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Abstract
The Special Court for Sierra Leone has been mandated to try those with the greatest responsibility for serious violations of international humanitarian law, crimes against humanity and Sierra Leonean law committed on the territory of Sierra Leone since 30 November 1996. This article will analyse some of the significant jurisprudence emerging from this tribunal and the contribution these cases make to the clarification and development of international humanitarian law. There may be some disquiet that the Appeals Tribunal in some of the cases has been too restrictive with the requirements of culpability in the recruitment of child soldiers. Ultimately, it is submitted that these cases will provide excellent material for the future work of the International Criminal Court and other hybrid or national tribunals in their consideration of criminal charges resulting from the violation of the laws and customs of war.
Notes
1 For the background of the conflict see Akinrinade, B. (2001) International humanitarian law and the conflict in Sierra Leone, Notre Dame Journal of Law, Ethics & Public Policy, 15(391), pp. 392–405 and the two Judgments discussed in this article.
2 Morss, J.R. and Bagaric, M. (2006) The banality of justice: reflections on Sierra Leone’s Special Court, Oregon Review of International Law, 8(1), p. 13.
3 Statute of the Special Court for Sierra Leone, established by an Agreement between the United Nations and the Government of Sierra Leone pursuant to Security Council resolution 1315 (2000) of 14 August 2000.
4 Prosecutor v. Dusko Tadic (a/k/a Dule), No. It‐94‐1‐AR72, para. 102 (2 October 1995) (Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction).
5 For a detailed discussion of this topic see Happold, M. (2005) Child Soldiers in International Law (Manchester: Manchester University Press).
6 Bald, S. (2002–2003) Searching for a lost childhood: will the Special Court of Sierra Leone find justice for its children?, American University International Review, 18(537), p. 540.
7 Prosecutor v. Sam Hinga Norman, Special Court for Sierra Leone, Decision on Preliminary Motion based on lack of Jurisdiction, 31 May 2005, SCSL‐2004‐14‐AR72 (E) p. 3.
8 Ibid., pp. 3–4.
9 Convention on the Rights of the Child, New York, 1577 UNTS 3, Article 38.
10 Prosecutor v. Dusko Tadic (a/k/a Dule), No. It‐94‐1‐AR72, para. 102 (2 October 1995) (Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction), para. 70.
11 Prosecutor v. Sam Hinga Norman, Special Court for Sierra Leone, Decision on Preliminary Motion based on lack of Jurisdiction, 31 May 2005, SCSL‐2004‐14‐AR72 (E) Dissenting Opinion of Judge Robertson, p. 35.
12 Ibid., in the main opinion, p. 23, where it was argued that 108 states explicitly prohibited child recruitment.
13 Prosecutor v. Brima, Kamara and Kanu, Special Court for Sierra Leone SCSL‐04‐16‐T, Judgment, 20 June 1997, p. 67.
14 Ibid., pp. 65–79, 85–91 and 351–363.
15 Ibid., p. 225.
16 Ibid., p. 361.
17 Ibid., pp. 102–166 for detailed consideration of the role of the accused persons in the AFRC structure.
18 Ibid., p. 95.
19 Ibid., pp. 92–96.
20 Akinrinade, op. cit., n 1, p. 402.
21 Prosecutor v. Moinina Fofana and Allieu Kondewa, Special Court for Sierra Leone, SCSL‐04‐14‐T, Judgment, 2 August 2007.
22 Ibid., pp. 210–211.
23 Prosecutor v. Moinina Fofana and Allieu Kondewa, Special Court for Sierra Leone, SCSL‐04‐14‐A, Appeals Judgment, 28 May 2008, p. 8.
24 Ibid., pp. 187–192.
25 Ibid., p. 45.
27 ICRC Commentary to Additional Protocol II, para. 4557.
26 Ibid., p. 50.
28 Prosecutor v. Moinina Fofana and Allieu Kondewa, Special Court for Sierra Leone, SCSL‐04‐14‐A, Appeals Judgment, 28 May 2008, p. 50.
29 Ibid., Dissenting Judgment of Renate King, pp. 10–12.