Introduction
Sierra Leone is a signatory to various international instruments, most of which prohibit the commission of crimes constituting crimes against humanity, war crimes and other serious violations of international humanitarian law (IHL). Even though these instruments prohibit the commission of crimes, regrettably, some of them fall short of expressly addressing the issue of punishment for breaches, or where such provisions are made, there is dearth of workable mechanisms within the instruments to address issues of impunity. Unlike some international instruments, the Rome Statute, the founding treaty of the International Criminal Court (ICC), has attempted to bridge the gap by addressing the issue of impunity. The provisions of the Rome Statute expressly address most serious crimes, such as genocide, war crimes, crimes against humanity, and the crime of aggression, as indictable crimes. It is generally accepted that the laws of Sierra Leone provide a bedrock of laws and principles specifically designed to protect its people and its borders. While the current laws can prosecute individuals for crimes such as murder, rape, armed robbery and larceny, it does not have the competence to try perpetrators of serious violations of IHL. Thus the need to enact laws that will address crimes committed in conflict and during peacetime. This article will make a case for the domestication of the Rome Statute in Sierra Leone. It will give an overview of its main provisions and proffer plausible reasons why a legal framework should be setup for its implementation and subsequent cooperation with the ICC.
Sierra Leone and IHL
Domesticating international law is central to its implementation at national level. Sierra Leone has demonstrated this by enacting an enabling legislation for the establishment of the Special Court for Sierra Leone (SCSL) in 2002. [1] However, the Agreement establishing the Special Court limits its mandate to try persons bearing the greatest responsibility for the atrocities committed during the war in Sierra Leone after 1996. The commission of ‘heinous crimes’ as described by Judges of the SCSL compels states to enact national legislation to prosecute and consequently punish perpetrators for these grave breaches under national and international law. [2] The SCSL, a sui generis model for ad hoc international tribunals, has convicted persons for what constitutes serious violations of IHL, including enlistment and the use of child combatants. Violations such as these are not usually addressed in national legislations. The Rome Statue and the establishment of the ICC provide a platform to address these issues. The Rome Statute creates an international body to address war crimes and other serious violations of IHL that can also be committed during peace time. By enacting legislation creating the SCSL, Sierra Leone has demonstrated the need to address war crimes, crimes against humanity and other serious violations of IHL. Hence, the provisions of the Rome Statue and the ICC itself are not far-fetched, because certain provisions, structures, principles and laws that they contain have already been applied by the SCSL. For instance Article 2 of the SCSL Statute provides that the court shall prosecute persons accused of committing crimes such as murder, extermination, enslavement, torture, rape, committed as part of a widespread or systematic attack against civilian population. [3] Similarly, Article 7 of the Rome Statute of the ICC provides for the prosecution of such crimes. [4] [5] Relying on the precedent set by the SCSL, domesticating the Rome Statute might help to contribute in strengthening international justice mechanism in Sierra Leone. Additionally, the ICC has jurisdiction over genocide and the crime of aggression (once the latter has been defined).
Jurisdiction
The Rome Statute was adopted on 17 July 1998 and entered into force on 1 July 2002, thus establishing the ICC with its seat in The Hague, The Netherlands. Part 2 of the Statute provides that the court shall have jurisdiction over cases of war crimes, genocide, and crimes against humanity. Furthermore, the court would exercise jurisdiction over the crime of aggression once there is an agreement on what constitutes the crime. Generally, the court is set up to try persons alleged to have committed these crimes. Like the SCSL, the ICC can also prosecute individuals for acts or omissions of their subordinates. The general principle of the court also states that the court is not retroactive; that is, it can only prosecute crimes that were committed after the entry into force of the Statute.
Characteristics
The ICC operates only as a complementary court to national judicial systems; that is, the court will only exercise its jurisdiction when a state is either unable or unwilling to prosecute crimes under its jurisdiction. Cases can be brought to the court in one of three ways. Firstly, a State Party to the Rome Statute, on its own volition, can refer a situation in which one or more of the crimes in the Statute are alleged to have been committed, to the Prosecutor of the ICC to investigate whether charges should be brought against one or more persons for committing these crimes. In 2006, Democratic Republic of Congo referred situations involving Thomas Lubanga Dyilo et al to the Prosecutor for investigation. [6] Secondly, the UN Security Council can refer a situation to the Prosecutor, acting under Chapter VII of the UN Charter. This was seen in the case of Sudan under Security Council resolution 1593 (2005), when the UN Security Council referred the situation of Ahmad Muhammad Harun [7] . Thirdly, the Prosecutor of the ICC can initiate an investigation on his own (proprio motu ), on the basis of reliable information that crimes within the jurisdiction of the court have been committed. Such information can come from international or local non-governmental organizations or victims. In complementing national judicial systems, the ICC recognizes the principal responsibilities of states to enact laws that can address the issue of impunity, thereby establishing a comprehensive system at all levels for prosecuting and punishing violators. The ICC therefore comes in where such legal and judicial framework does not exist within a state. The principle of complementarity also suggests that crimes can be investigated by the Prosecutor of the court or a referral by the UN Security Counsel if State Parties are unwilling to adjudicate such matters. To guarantee referrals by either the UN Security Counsel or a government to allow the prosecutor to initiate an investigation, State Parties have to enact national legislation that will incorporate the elements of the Rome Statute. Being a signatory to the Rome Statute, Sierra Leone needs to expeditiously domesticate the Rome Statute in order to have competence to adjudicate on crimes enshrined therein.
Furthermore, the Rome Statute makes provision for victims’ participations at all stages of proceedings. As a result, the ICC has availed the victims access to and being a part of the justice process, a development that is unique in the structure and operations of international tribunals. It also takes into account issues of reparations for victims beyond the traditional punishment and deterrence objectives of domestic courts. Article 79 of the Rome Statute provides for the establishment of a trust fund for victims and their families. This does not only address the issue of reparation, it also guarantees legal representation for victims to participate at all stages of the proceedings. The court can determine the extent of damage and can order perpetrators to compensate victims as such.
Furthermore, in adhering to international standards, the ICC does not use the death penalty as punishment. Article 77 of the ICC’s Statute provides that the court can only institute penalties such as life imprisonment, imprisonment for a designated number of years and fines, but cannot institute the death penalty. Domesticating the Rome Statute therefore will ensure a significant step to expunge capital punishment from the laws books in Sierra Leone.
Status of the Rome Statute in Sierra Leone
Though the process is underway to enact legislation with the aim of implementing the provisions of the Rome Statute in Sierra Leone, it appears not to be a priority. Eight years after the signing of the Rome Statute, Sierra Leone has still not domesticated the Statute despite the fact that it was the 20th country to ratify the Rome Statute in September 2000. The provisions of the Rome Statute provide a wide range of alternatives for addressing the issue of impunity. There is a currently parallel effort by the Sierra Leone Bar Association and No Peace Without Justice (a non-governmental organization) to contribute to the drafting of a bill that will domesticate the Rome Statute. Both organizations conducted separate seminars and had written comprehensive reports. It is therefore essential to synchronize these reports into a single bill to pass into law.
It is important to note at this juncture that criminal justice in national jurisdictions is usually met with unprecedented rigors that might hinder the process of fair trials. Rigors such as prolonged detention due to lack of personnel or resources to timely prosecute, contravene Section 17 of the 1991 Constitution of Sierra Leone. [8] Also inadequate legal representation for accused persons can amount to a breach of Sec 23(5) [9] of same. Hence the failure of national courts to effectively prosecute accused person presents a perversion of justice. In a bid to alleviate fears of these occurrences, State Parties can refer allegations to the ICC, bearing in mind that the court can only serve as a last resort. In June 2000 the government of SL had to request such assistance for a war crimes tribunal, which eventually led to the establishment of the SCSL. This request was the result of Sierra Leone lacking effective national mechanisms to try those who were alleged to have committed serious violation against humanity. If the Rome Statute is domesticated, Sierra Leone may have enhanced its competence to try crimes under IHL in its national courts.
Conclusion
Justice mus t be seen as a building block for a modern day society. This is especially important for a transitional country like Sierra Leone, where inadequacies in the justice system were identified as one of the root causes for the decade-long civil war. As a substantive measure to address this cause, it is essential to establish the corresponding legal framework that will address the problems of impunity and inadequate justice. It is also crucial for Sierra Leone to put mechanisms in place that will guarantee accountability in the case of future breach. Through this, Sierra Leone would have succeeded in not only ensuring deterrent but most importantly accountability for breaches. This would not only lead to international recognition, but will also send a message to other countries that Sierra Leone is not a safe haven for criminals.
[1] See Special Court Ratification Act 2002
[2] See SCSL Trial Chamber II Judgment on the AFRC Trials
[3] See Statute of the SCSL- http://scsl-server/sc-sl/new/scsl-statute.html
[4] See Rome_Statute_120704-EN
[5] ibid
[6] http://www.icc-cpi.int/pressrelease_details&id=19&l=en.html
[7] http://www.un.org/News/Press/docs/2005/sgsm9797.doc.htm
[8] See The Constitution of Sierra Leone 1991 Art. 17 (3) a, b
[9] Ibid [Art. 23 (c)]
