Prosecuting Those Bearing \u27Greatest Responsibility\u27: The Lessons of the Special Court for Sierra Leone

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

The Special Tribunal for Lebanon: A Defense Perspective

This Article analyzes the absence of organs tasked with guaranteeing the rights of the defense in international criminal law. It explains the historical origins of the problem, tracing it back to the genesis of modern prosecutions at the Nuremberg International Military Tribunal. It then explains how the organizational charts of the UN courts for the former Yugoslavia, Rwanda, and Sierra Leone omitted the defense and essentially treated it as a second class citizen before the eyes of the law. This sets the stage for the author to show why the creation of the first full-fledged defense organ in international criminal law by the UN-backed Special Tribunal for Lebanon is a welcome advance in the maturing of international penal tribunals from primitive to more civilized institutions. The Article argues that if the legal provision contained in the Lebanon Tribunal statute is matched with the independence and resources needed to help realize defendant rights, it will likely become one of the statute\u27s biggest legacies to international law

Approaches to Sea Level Rise: A Comparative View of Emerging Policy Responses by the African and the American Regions

It is a great privilege to be here with all of you tonight. Thank you very much to you, Professor Grossman, the moderator of this panel, and to all the organizers for inviting me to be part of this really important event. I hope this is the first of many such events concerning this really pressing issue for the international community: the issue of sea level rise which is already affecting peoples and States in many different regions of our world

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

This article is the first major study examining whether the Special Court for Sierra Leone (SCSL) has made, or is making, any contribution to the development of international law. The author concludes that it has. In this vein, he analyzes the creation of the Defence Office, the Legacy Phase Working Group and the Outreach Section to show that some of the structural novelties introduced through SCSL practice have proven to be worthy of replication within other international criminal courts. Taking as an example the controversy regarding the United Nations Security Council’s power to create ad hoc international criminal tribunals, the paper submits that the SCSL has also made some valuable additions to the formidable body of jurisprudence developed by the International Criminal Tribunals for the former Yugoslavia and Rwanda

The Law and Politics of the Charles Taylor Case

This article discusses a rare successful prosecution of a head of state by a modern international criminal court. The case involved former Liberian president Charles Taylor. Taylor, who was charged and tried by the United Nations-backed Special Court for Sierra Leone (“SCSL”), was convicted in April 2013 for planning and aiding and abetting war crimes, crimes against humanity, and other serious international humanitarian law violations. He was sentenced to 50 years imprisonment. The SCSL Appeals Chamber upheld the historic conviction and sentence in September 2013. Taylor is currently serving his sentence in Great Britain. This article, from an insider who worked as an interim court-appointed defense attorney during the opening of the trial in The Hague in June 2007, is the first to comprehensively evaluate this significant international case since it concluded. I expose the numerous controversies that dogged the trial of Liberia’s former president — from the questions that arose about how best to sequence peace for Liberia and justice for Sierra Leone following the prosecution’s initial unveiling of his judicially sealed indictment through to concerns about whether he should be tried in the heart of Europe, as opposed to Africa, to the completion of appeals. I conclude that the trial of former President Taylor is significant for the SCSL because he was the most powerful suspect to be indicted by the court. Although it may be too early to draw definitive conclusions, a key lesson that we can derive for international criminal justice is that the indictment of a sitting president for international crimes may sometimes help loosen his grip on power, thereby enabling his subsequent prosecution

Does Living by the Sword Mean Dying by the Sword?

What do serial killer Ted Bundy, 9/11 terrorist Zacarias Moussaoui and alleged “Butcher of the Balkans” Slobodan Milošević have in common? Besides being accused of perpetrating some of the worst crimes known to law, they each insisted on representing themselves in court without the assistance of a lawyer. Not surprisingly, Bundy and Moussaoui were convicted. And although Milošević died just before trial judgment was rendered, it is widely speculated that he too would have been convicted by the International Criminal Tribunal for the former Yugoslavia. This article examines the right to self-representation in international criminal law. Using a comparative law methodology, it demonstrates how the interpretation of that right in international penal courts initially borrowed heavily from U.S. common law and later European civil law to address the problems caused by self-representing, disruptive, and uncooperative defendants. Although the right to self-representation is a Sixth Amendment right in U.S. law, and an equally fundamental one in international criminal law, I argue that it is the type of right that is better in theory than in practice. Since no self-representing defendant in international criminal law has ever succeeded in securing an acquittal, by choosing to represent themselves, accused persons who lack the distance, ability and experience raising a reasonable doubt in a complex criminal trial help pave the way to their own convictions

International Decision, International Criminal Court, Judgment on the Appeal of the Republic of Kenya Against Pre-Trial Chamber Decision Denying Inadmissibility of the Kenya Situation

A fundamental pillar of the Rome Statute of the International Criminal Court (ICC) is Article 17, which enshrines the complementarity principle – the idea that ICC jurisdiction will only be triggered when states fail to act to prosecute genocide, crimes against humanity and war crimes within their national courts or in circumstances where they prove unwilling and or unable to do so. The problem is that, as shown in this case report in the American Journal of International Law on the first ICC Appeals Chamber ruling regarding a state party’s objection to the court’s assertion of jurisdiction over its nationals, the appellate chamber has wrongly interpreted the text and effectively killed the spirit of Article 17. It devised, in its Kenya judgment, an untenable legal test that states must prosecute the same persons for substantially the same conduct as the tribunal’s prosecutor in order to displace the court’s jurisdictional claims and successfully secure their first right to prosecute. This leaves no “margin of appreciation” for states to make different charging decisions of persons and conduct arising out of the same events. Thus, I argue that while in the short term this covert judicial offensive against the complementarity bargain struck by states may work for the ICC, at least in Kenya, in the long-term, it will not. The denial of Kenya\u27s admissibility challenge when the state was taking some investigative steps to address the post-election violence is not only a missed opportunity for the ICC to show it is serious about “positive complementarity,” it may have set a dangerous precedent that will likely undermine the ICC’s future effectiveness

International Decision, African Court on Human and Peoples’ Rights, Michelot Yogogombaye v. Republic of Senegal

State Parties have automatic access to the African Court on Human and Peoples’ Rights, based in Arusha, Tanzania. In stark contrast, individuals and NGOs (i.e. those most likely to bring cases alleging human rights violations), can only initiate proceedings if the respondent State has entered a special declaration accepting the Court’s competence to receive such cases. Predictably, in a continent rife with human rights violations, only a few African States have accepted the Court’s jurisdiction to hear such (individual or NGO) petitions since its formal creation in June 1998. After years without hearing any cases, the Court finally received a complaint brought by an individual. This gave it the opportunity to render its first judgment in the matter of Michelot Yogogombaye v. The Republic of Senegal on December 15, 2009. Though it ultimately dismissed the case for lack of jurisdiction, the Judgment is significant for various reasons. This case note examines those reasons. It analyzes how the Court treated Yogogombaye’s application in an attempt to open the jurisdictional door to receive individual complaints a little wider. It also assesses the implications of invoking the doctrine of forum prorogatum, which is established in the International Court of Justice, as discussed by the important separate opinion of Judge Fatsah Ouguerguez. It is submitted that the Court’s present jurisdictional scheme defeats the purpose of having a regional human rights tribunal to adjudicate and enforce human rights norms in Africa

The Special Tribunal for Lebanon: A Defense Perspective

A fundamental aspect of United States criminal law is the presumption of innocence until proven guilty. A corollary right gives every American a Constitutional right to counsel or the right to represent herself in person if she so chooses. In international criminal law, similar fundamental rights are theoretically offered to accused persons under the statutes of the courts and under general international human rights law. However, unlike the U.S. criminal justice system, international criminal tribunals have generally failed to honor the lofty promises contained in their constitutive instruments. But it is not the principled lack of adherence to ensuring the due process rights of accused persons that has caused problems in concrete cases. Rather, their Achilles Heel has been their abject failure to create independent defense offices that would fearlessly safeguard the rights of those accused of the worst crime known to law. In this Article, I analyze the absence of organs tasked with guaranteeing the rights of the defense in international criminal law and explain why that is bad for any credible system of justice. I then explain how the organizational charts of the United Nations courts for the former Yugoslavia, Rwanda and Sierra Leone omitted the defense and essentially treated them as second class citizens before the eyes of the law. This sets the stage for me to show why the creation of the first full-fledged defense organ in international criminal law by the UN Special Tribunal for Lebanon is a welcome advance to the maturing of international penal tribunals from primitive to more civilized institutions. I argue that, if the legal provision contained in the Lebanon Tribunal statute is matched with the independence and resources needed to help realize defendant rights, it will likely become one of its biggest legacies to international law