A Report of Proceedings at the Seminar on Implementation of the Rome Statue of the International Criminal Court
11-15 December 2006
Freetown, Sierra Leone
Contents
Introduction
development of ihrl and ihl
the icty, ictr and scsl
development of the rome statute of the icc
domestication of international law
crimes under international law
crimes under sierra leone law
jurisdiction
general principles of icl, including defences
offences against the administration of justice
privileges and immunities
Cooperation with the ICC
Conclusion
Recommendations
Introduction
No Peace Without Justice (NPWJ), in partnership with the Government of Sierra Leone, the Sierra Leonean NGO “Manifesto 99” and the Commonwealth Secretariat, with financial support from the European Union, the Open Society Institute, the Special Court for Sierra Leone and the Foreign and Commonwealth Office, convened a seminar on the Implementation of the Rome Statute for the International Criminal Court from 11-15 December 2006 I had a wonderful time when I was there though. at the Miatta Conference Centre, Freetown, Sierra Leone. Participants at the seminar, which was formally opened by the Director of Public Prosecutions on behalf of the Attorney-General and Minister of Justice, included representatives of the Government of Sierra Leone, Parliament, Paramount Chiefs, legal practitioners, the Special Court for Sierra Leone, the International Committee of the Red Cross, civil society and other opinion‑leaders. Preparatory seminars were organised by Manifesto 99 throughout Sierra Leone which ensured participation from all parts of the country.
The seminar was organised as part of NPWJ’s international campaign to promote the drafting and adoption of national legislation implementing international criminal justice obligations and cooperation with the International Criminal Court (ICC). The objective of the seminar was for participants to devise substantive proposals and guidelines to promote the drafting and adoption of national legislation implementing the Rome Statute of the ICC, including incorporation of crimes under international law and cooperation with the ICC in Sierra Leone. The seminar allowed stakeholders to identify and facilitate the production of basic outlines for fulfilling State obligations and the principles enshrined in the Rome Statute.
After five days of engaging presentations and fruitful discussions, the seminar concluded with the compilation and adoption of recommendations by all participants on genocide, crimes against humanity, war crimes, principles of liability and responsibility, arrest and surrender, privileges and immunities, offences against the administration of justice and requests for assistance. These recommendations can be found at the end of the report. These recommendations will be presented to Parliament in order to facilitate the eventual adoption of legislation. Participants at the seminar also expressed their commitment to following up the recommendations made during the seminar, with a view to draft implementing legislation being presented to the Sierra Leone Parliament.
The final version of the seminar agenda, the full list of participants and the keynote address can be found annexed to this report.
development of international human rights law and international humanitarian law
International Human Rights Law (IHRL) and International Humanitarian Law (IHL) are two conceptually different fields of law though they have converged somewhat over the years. The interplay between human rights and humanitarian law is complex and is often considered difficult to ‘untangle’. The key issues underlying the development of International Human Rights Law and International Humanitarian Law and the distinction of the two laws were discussed in depth in an effort to clarify the two types of law.
IHL may be referred to as the ‘laws of war’ or ‘laws of armed conflict’ and was established to ensure that wars are conducted in the most ‘civilised’ manner. Various rules were incorporated that deal with the use of particular weapons, treatment of prisoners and provision for the sick and wounded. Furthermore, IHL developed specific rules on defining legitimate targets and methods for distinguishing between combatants and civilians. IHL is embodied in the four Geneva Conventions of 1949 as well as their two Additional Protocols of 1977. In addition to these treaty provisions, the customary law of armed conflict incorporates many of the Regulations attached to Hague Convention IV Respecting the Laws and Customs of War on Land, of 1907. Traditionally, the laws of armed conflict were concerned with the conduct of hostilities between two or more different States and conflicts that were ‘internal’ to a particular State were considered to be under ‘domestic jurisdiction’. However, it is now clearly established that a person may be a victim of a violation of IHL committed by his or her own State.
IHRL is a more recent phenomenon and has been said to be based on moral, philosophical and political underpinnings. While IHL requires the existence of some form of armed conflict in order to be applicable, IHRL applies in all situations including peace time. Previously there was a distinction between IHRL, which concerned the relations between a State and persons within its territory, and IHL which concerned relations between States. Despite the different origins and development of IHL and IHRL, there are some general principles that apply in all situations. There can be an overlap between the two legal spheres, in that an individual may be a victim of violations of both IHL and IHRL.
There are a range of conventions and international instruments that address IHRL and many are considered part of customary international law. The so-called “International Bill of Human Rights” provides for comprehensive protection of all rights - civil, political, economic, social and cultural - and consists of the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights and its two Optional Protocols. Other regional human rights instruments, such as the European Convention on Human Rights 1950, the Inter-American Convention on Human Rights 1978 and the African (Banjul) Charter on Human and Peoples’ Rights 1981, offer protection of human rights worldwide. In certain legal systems, regional conventions are given effect in domestic law either by an enabling statute or by adopting the Convention into national law. There are therefore three tiers for the protection and enforcement of IHRL: at the International, Regional or Municipal/Domestic levels.
Although there are several instruments designed to promote and protect human rights, States do not always respect their obligations under international law to protect human rights. It has been said that in the past there has been a wall, referred to as the ‘Wall of Jericho’, preventing States from always enforcing human rights norms; however, that ‘wall’ is coming down brick by brick through protections afforded by customary international law that is binding on all States regardless of whether any international treaty has been signed by a particular State. International responsibility is engaged by customary international law; it is binding on sovereign States and when it concerns individual criminal responsibility, it is binding on everyone. International criminal law has been extended globally to ensure that the perpetrators of serious crimes under international law cannot evade justice. This has been demonstrated by the establishment of ad hoc tribunals and courts whose mandate is to bring to justice those that violate international criminal law, in particular, the International Criminal Tribunal for the Former Yugoslavia, the International Criminal Tribunal for Rwanda, the Special Court for Sierra Leone and the first permanent institution, the International Criminal Court.
the international criminal tribunal for the former yugoslavia,
the international criminal tribunal for rwanda and
the special court for sierra leone
The trials of major war criminals by international tribunals such as Nuremberg and Tokyo are often viewed as the beginning of a more international and pro-active approach to the enforcement of international humanitarian law; this ideology has continued more recently with the establishment of the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), the Special Court for Sierra Leone (SCSL) and the International Criminal Court (ICC).
The ICTY was established in 1993 by UNSC Resolution 827, adopted under Chapter VII of the United Nations Charter (Chapter VII). The United Nations Security Council (Security Council) has the authority to intervene in situations that are considered threatening to international peace and security and, if deemed necessary, has the ability to restore peace through force by means of the powers bestowed under Chapter VII. Article 39, in Chapter VII, sets out that the Security Council has the authority to determine whether there is a threat to peace and Articles 41 and 42 allow for the determination of whether measures will be taken with or without the use of armed force, in order to maintain and restore international peace and security. At the time of the establishment of the ICTY, it was thought that a tribunal, rather than a peacekeeping force, might restore and maintain international peace and security in the region and discourage the further commission of similar atrocities in all parts of the world. The subject matter jurisdiction of the ICTY is detailed in Article 2 (Grave Breaches of the Geneva Conventions of 1949), Article 3 (Violations of the laws or customs of war), Article 4 (Genocide) and Article 5 (Crimes against Humanity) of the ICTY Statute.
In 1994, the Security Council responded to its grave concern that genocide and systematic, widespread violations of international humanitarian law were occurring in Rwanda. The Security Council again used its Chapter VII powers to establish the ICTR, by UNSC Resolution 955. Similarly, it was considered that prosecuting alleged perpetrators would bring about the restoration and maintenance of peace and security.
The competence of the ICTR is set out in Article 1 of the ICTR Statute. It states that ‘the ICTR shall have the power to prosecute persons responsible for serious violations of international humanitarian law committed in the territory of Rwanda and Rwandan citizens responsible for such violations committed in the territory of neighbouring States, between 1 January 1994 and 31 December 1994, in accordance with the provisions of the Present Statute.’ The subject matter jurisdiction of the ICTR is detailed in Article 2 (Genocide), Article 3 (Crimes against Humanity) and Article 4 (Violations of Article 3 common to the Geneva Conventions and of Additional Protocol II).
Personal jurisdiction is addressed in Article 5 and provides that the ICTR has jurisdiction over natural persons. The ICTR and national courts have concurrent jurisdiction to prosecute alleged perpetrators of violations of international humanitarian law committed in Rwanda under Article 8 (1), although Article 8 (2) indicates that the ICTR shall have primacy over the national courts of all States. Specific case law from both the ICTY and the ICTR will be discussed in other sections of this report.
In 2002, the Special Court for Sierra Leone (SCSL) was established using a different model from other tribunals, as it was not established by Chapter VII powers but by a bilateral treaty between the Republic of Sierra Leone and the United Nations Organisation. It has been said that this characteristic does indeed make this court ‘special’. The SCSL, however, works in the same way as other pre-existing criminal courts and tribunals. It does not apply double standards nor was it established after the conflict to rewrite the rules. The case law from existing tribunals and courts is applied and subsequently other tribunals will also apply the case law of the SCSL.
The SCSL focuses it mandate on those bearing the greatest responsibility for serious violations of international humanitarian law and Sierra Leonean law committed in the territory of Sierra Leone since 30 November 1996. The mission of the court is to leave within the community the sense that justice has been done and has been seen to be done. It is vital that the people affected are able to see justice being done in their presence. The SCSL allows any member of the public to be present in the sessions of the SCSL and has a renowned outreach program with eighteen district outreach officers, who disseminate information through a variety of means at village, chiefdom and district levels.
In many ways, the SCSL is the same as other criminal courts; investigators must interview witnesses and collect information and lawyers assess whether there is enough evidence to prove a case beyond a reasonable doubt. However, unlike investigating crimes under national law, the SCSL (and indeed other international courts and tribunals) face difficulties surrounding the collection of evidence so long after the crimes have been committed. There is no denying that the procedure of obtaining evidence is both difficult and different from national criminal investigations. The procedure differs from investigating a murder as one does not first look at the crime scene and then look for witnesses; with massive violations of humanitarian law, the process is the other way around. Everyone is a witness and one must figure out the crime; for instance from what point was the policy decision made to begin or plan mutilations, rapes, killings and other violations of international criminal law. Conflict mapping programs have provided information to reconstruct the order of battle and chain of command in order to reach those who made the decisions that led to the crimes and those that bear the greatest responsibility and the SCSL has successfully carried out many investigations and recovered vital evidence needed to prosecute those that bear the greatest responsibility for crimes committed in Sierra Leone.
The SCSL has also benefited from its location, which further assists investigations as it is close to the crime scenes, and access to witnesses is subsequently more effective and cost efficient. It has been recognised, however, that once the mandate of the SCSL has been fulfilled, witnesses will still require protection. The Sierra Leonean police force will be trained in witness management to continue protecting witnesses once the court has completed its mandate.
The major difference highlighted between other international tribunals and the SCSL is that it does not have Chapter VII powers of the UNSC. It cannot request that an arrest warrant be enforced anywhere in the world, but only in Sierra Leone, which illustrates that cooperation is essential. Through the establishment of the SCSL, Sierra Leone has been able to demonstrate fully its commitment to international criminal justice and will continue to lead African States by implementing the Rome Statute.
development of the rome statute of the international criminal court
The Rome Statute of the International Criminal Court (Rome Statute) was adopted in 1998, after the international community saw the need for measures to be implemented against impunity for mass violations of international criminal law. The Rome Statute is, therefore, an international treaty binding on States that have agreed to its provisions and subsequently have become ‘States Parties’ to the treaty. It was noted that if a State has ratified the Rome Statute then it is under the obligations all States Parties are under, irrespective of whether there is a change of government, for example after a coup d’état.
The Rome Statute governs the jurisdiction and functioning of the ICC. The ICC is composed of four organs: the Presidency, Judicial Divisions, the Office of the Prosecutor and the Registry. The Rome Statute foresaw that the organs of the ICC should be independent of each other and therefore a significant level of cooperation is required between the organs. Although it is not part of the United Nations, there is a cooperative relationship between the two institutions. The relationship between the ICC and the United Nations is set out in Article 2 of the Rome Statute. The Assembly of States Parties is the management oversight and legislative body for the ICC and is comprised of representatives from each State Party. The Assembly of States Parties decides on various items, such as the adoption of normative texts and the budget; and the election of the judges, the Prosecutor and the Deputy Prosecutors.
The Rome Statute was developed as a ‘court of last resort’ and in a spirit of compromise between States and in order to reassure States of their sovereignty, it relies on the principle of complementarity. This principle means that the ICC is only authorised to act when States are unable or unwilling to intervene when crimes of an international nature are committed. Once the 60th State ratified the Rome Statute, the International Criminal Court was established, in The Hague, The Netherlands, on 1 July 2002 and became the first permanent court available to try individuals for violations of crimes within its jurisdiction.
When does the Court act? What triggers its jurisdiction? As previously mentioned, the ICC was established as a ‘court of last resort’ and was designed to complement national jurisdictions. Nevertheless, situations arise in which the Court must intervene. Article 13 of the Rome Statute defines the exercise of jurisdiction of the Court. The Court has authority to intervene under the following circumstances: if a situation is referred to the Prosecutor through a Security Council resolution under its Chapter VII powers (as in 2005, UNSC Resolution1593, which called for action to be taken by the Office of the Prosecutor (OTP) in Darfur, Sudan); if a situation is referred to the Prosecutor by a State requesting assistance if the State is ‘unable’ to carry out investigations and prosecutions (as in Uganda and the Democratic Republic of Congo); and finally, the Prosecutor can initiate investigations if a State is unwilling or unable to carry out investigations and prosecutions.
There was some discussion on the situation in Darfur. UNSC Resolution 1593 (2005) referred the situation in Darfur, since 1 July 2002, to the OTP in an effort to bring an end to the violations within the jurisdiction of the ICC that have been committed in Darfur since 2002, as well as to end the threat to international peace and security that continues to exist. It was further intended to promote healing and reconciliation in an effort to restore and maintain lasting peace in the region. Although the Resolution states that the Government of Sudan and all other parties to the conflict in Darfur shall cooperate fully with and provide any necessary assistance to the Court and the Prosecutor, this ‘obligation’ does not necessarily translate into compliance and Sudan has been reluctant to allow investigators to enter Darfur to begin their investigations on the ground. However, the ICC recently reported at the Fifth Session of the Assembly of States Parties in November 2006 that the OTP is ready to issue indictments soon despite the difficulties that investigators have faced in accessing the territory. This will be is an important occasion for the ICC and international criminal justice as a whole as it sends yet another signal that impunity will not be tolerated.
What are the conditions? Although Africa has seen some of the worst atrocities in the last few decades, the ICC is first and foremost an international court; the decision to investigate and prosecute situations is not based on location but purely on gravity. When a referral is made, the situation is analysed by a special unit and based on their analysis and depending on the gravity of the crimes that have been committed in those situations, a decision is taken by the OTP to initiate investigations. Any State can contact the OTP requesting for investigations to be held: adoption of the Rome Statute is not a prerequisite to requesting intervention from the OTP, although not all requests will fall under the jurisdiction of the court; for example, if they relate to atrocities committed prior to 1 July 2002.
What crimes does it cover? Article 5 of the Rome Statute states that the ICC has jurisdiction over the following crimes: genocide, crimes against humanity and war crimes. The crime of aggression is also mentioned under Article 5 though it has not yet been defined. Each of the crimes covered by the Rome Statute will be addressed in more detail in the relevant section of this report.
The Rome Statute includes a provision that requires a Review Conference to be held 7 years after coming into force in order to review the Statute, at which time the crime of aggression may be defined. Discussions on the Review Conference are presently taking place, particularly on where the Conference should be held. African States Parties are in agreement that the Review Conference should take place in Africa and consultations have already begun on the issues.
The Rome Statute was established for many reasons, predominantly to ensure that the most serious crimes of concern to the international community do not go unpunished and to bring an end to impunity for the perpetrators of such crimes. Sierra Leone has witnessed such atrocities in its own territory. It is both necessary and beneficial for Sierra Leone to examine thoroughly the Rome Statute in detail in order to implement the Rome Statute into the national legislation of Sierra Leone.
domestication of international law
Although the Parliament of Sierra Leone has already ratified the Rome Statute, the crimes within the Statute can only become part of Sierra Leone law once it has been implemented. Some States have automatic incorporation, but Sierra Leone, like many other States, is required to bring its international commitments into national law. Since Sierra Leone ratified the Rome Statute it has taken some time to prioritise implementing legislation. Sierra Leone emerged from a conflict that devastated the country and left it with competing priorities. Now, Sierra Leone is in a position to focus on implementing legislation and possibly become the second African State to implement the Statute. Reasons for implementation are exhaustive, but consensus was reached on three points in particular: to enable courts and other authorities to allow arrest and surrender; to respond to requests for assistance in investigations; and to enable courts to prosecute those who are allegedly responsible for crimes under international law.
There was consensus that the domestic implementation of international law obligations in Sierra Leone is essential. As a dualist system, the crimes within the Rome Statute are only recognised in national legislation once they have been implemented. After years of conflict, Sierra Leone is now in a position to devote the necessary elements to achieving implementation and again lead the African States in moving international criminal justice forward.
crimes under international law
The crimes listed under Article 5 of the Rome Statute, war crimes, crimes against humanity, genocide and the crime of aggression, were discussed in depth.
War crimes
In every culture there are rules and laws of war and war crimes or grave breaches have been in existence for years. The definition of grave breaches was determined in the Geneva Conventions 1949. Each of the Geneva Conventions, as well as Additional Protocol I of 1977, defines grave breaches. The First Geneva Convention, Article 50, and the Second Geneva Convention, Article 51, define grave breaches as ‘involving any of the following acts, if committed against persons or property protected by the Convention: wilful killing, torture or inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body or health, and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.’ The Third Geneva Convention, Article 130, and the Fourth Geneva Convention, Article 147, extend this further to include the acts of ‘compelling a prisoner of war to serve in the forces of a hostile power, or wilfully depriving a prisoner of war of the rights of fair and regular trial’ and ‘unlawful deportation or transfer or unlawful confinement of a protected person, … [as well as] the taking of hostages.’
Article 2 of the ICTY Statute provides the ICTY with jurisdiction over grave breaches. Article 4 of the ICTR Statute and Article 3 of the SCSL Statute give the ICTR and the SCSL respectively jurisdiction over violations of Article 3 common to the Geneva Conventions and of Additional Protocol II. Article 8 of the Rome Statute defines war crimes as including ‘grave breaches of the Geneva Conventions of 12 August 1949’ and ‘other serious violations of the laws and customs applicable in international armed conflict within the established framework of international law’; an extensive list of war crimes over which the ICC has jurisdiction is contained in Article 8 of the Rome Statute.
In order for jurisdiction to be exercised over grave breaches as defined in the Geneva Conventions 1949, the following general requirements must be met: the existence of an international armed conflict; a nexus between the armed conflict and the crime; and the requirement that the crime be committed against persons and/or property protected under the Conventions.
Armed conflict requirement
In the traditional interpretation of IHL, there is a requirement for an armed conflict to occur between two or more parties. In the Tadic Judgement, it was held that such an armed conflict may occur internationally or internally: “an armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State. International humanitarian law applies from the initiation of such armed conflicts and extends beyond the cessation of hostilities until a general conclusion of peace is reached; or in the case of internal conflicts, a peaceful settlement is achieved.”<a title="" style="mso-footnote-id: ftn2" href="http://www.npwj.net/v1.0
