AMNESTY AND THE OBLIGATIO ERGA OMNES TO REPRESS HUMANITARIAN LAW VIOLATIONS: LESSONS FROM THE SIERRA LEONE CONFLICT

June edition AMNESTY AND THE OBLIGATIO ERGA OMNES TO REPRESS HUMANITARIAN LAW VIOLATIONS: LESSONS FROM THE SIERRA LEONE CONFLICT C. Osim Ndifon 0 0 Associate Professor of Law in the Faculty of Law, University of Calabar , Nigeria The issue of the criminal liability of individuals in both their personal and official capacities is central to human rights adjudication. But this notion becomes a farce if states grant to individuals certain immunities- such as amnesty, asylum or any other exculpating factors. The fact that amnesty have continued to be issued by various government makes it a compelling task for us to look at or determine its proper limits. Among the questions that may arise is: what is the extent of the powers of the government to grant amnesty, whether on a proper interpretation of states responsibility to grant pardon for crimes committed against it vis--vis the duty under international law to punish those who have committed other crimes especially humanitarian law crimes. It is our argument that on a proper interpretation of this responsibility, states do not have an unlimited power to grant amnesty. States owe it as an obligation to its citizens as well as to those within its bodies to bring to book perpetrators of human rights abuse. The combination of the above mentioned factors therefore makes the issuance of amnesty asylum or any other exculpating factor, a total aberration. In this paper a background is given to the historical development of amnesty and the extent of states powers to confer same. Amnesty; erga omnes; humanitarian law - Introduction: The internecine armed conflict that gripped Sierra Leone in the early 1990s was a tragedy. The civil war was between brothers or people so intimately linked by common experiences and close fraternal bonds. In its character, actors, and consequences, there was a sense that novel warfare strategies, such as ethnic cleansing, child soldiers, mass rape, banditry, starvation and the use of mercenary had evolved. Also, there existed a large pool of ready and willing youths waiting to be recruited, in fact, children some as young as six years, took up arms against their parents and brothers against brothers. These crimes had catastrophic consequence as they did not only cause a lot of pain and suffering in human society, they also disorganised domestic life of a large number of countries. Equally, these criminal acts may seriously affect relations between states and the international legal order because they amount to violations of both international and domestic laws. This concern has prompted and provided a great impetus for prosecution. But in most cases, in practice, prosecution has become difficult because of the existence of competing interests that of justice and reconciliation. Those in favour of reconciliation believe that the grant of amnesty creates the requisite environment for reconciliation and peace. For this reason, it is not surprising that amnesty is now an attractive option and a matter of first choice in a post-conflict peace arrangement. But the important need to reconcile the warring parties in the aftermath of armed conflict, by the grant of amnesty or other forms of pardon is met by an opposing, albeit, strong desire at times to punish those who have acted in violation of humanitarian law crimes. For the many opposed to amnesty; the argument is that, it has become a veritable instrument of impunity for human rights and humanitarian law violations. This conflict indeed presents an interesting dilemma a choice between moral and legal imperatives in ordering a post-conflict legal regime. This paper addresses the issue of amnesty and the furore it created in legal circles as to whether amnesties could be used as a facet of Sierra Leone post-conflict settlement. As a backdrop to this study, it is important to provide an account -however fleeting- of the armed conflicts that engulfed Sierra Leone. For, it is only then that we can assess the import of the amnesties so far granted and determine whether they have achieved their purpose. We have, in this paper, attempted to proffer solutions to these and other related issues raised. The sierra leone armed conflict: the history and actors. The West African sub-region is notorious for being one of the worlds disastrous conflict zones. In fact, many West African states have become, in a sense, to use Mazruis entire sub region. Sierra Leone, in 1991, became the latest casualty of this trend. Sierra Leone is a small state that loomed large in the UNs latest department, which is euphemistically dubbed lessons learnt unit.2 At Independence from Great Britain in 1961, it had a population of 4.5 million. The country as a result of its huge diamond deposits enjoyed comparative peace and prosperity. But the prosperity was short-lived as corruption took its toll of elected politicians. Dr Milton Margai of the Sierra Leone Peoples Party (SLPP), was replaced by his half-brother, Dr Albert Margai. Dr Albert Margai ruled from 1964 to 1968, when Dr Siaka Stevens of the All Peoples Congress (APC) became president. The rule of Dr. Siaka Stevens set off two decades of corruption, misrule and authoritarianism. One of the enduring legacies of the protracted misrule of the APC, especially as it related to the outbreak of the civil war in 1999, was the groundswell of an army of unemployed, lumpenised3 youths from whose ranks the RUF guerrillas were initially recruited. Dr. Stevens was overthrown by President Saidu Momoh in 1992. This was made possible by a group of disgruntled military officers fresh from battle with the Revolutionary United Front (RUF). Then there was Captain Valentine Strasser who overthrew President Momoh and then Tejan Ahmed Kabbah, a democratically elected president. He was overthrown by Major Johnny Paul Koroma. The political history became interspersed with a series of army coups and raids on the diamond The theatre of conflict in Sierra Leone had both local and international components. Starting with the former, there was the Revolutionary United Front (RUF),4 a breakaway army faction led by a hitherto unknown former Corporal Foday Sankoh.. He recruited gangs of violent, dispossessed youths and armed them with AK47 rifles for their missions of pillage, rape and diamond-heisting. The RUF had no clear-cut political agenda. It had as its main backer, Charles Taylor, the Liberian war-lord-turned-president who was alleged to have supplied the group with arms in exchange for Sierra Leone diamonds. The RUF on the 23 March 1991 launched a blistering cross-border attack from neighbouring Liberia in Kailahun District.5 This cross-border attack by the RUF was initially interpreted by the government in Freetown, the capital of Sierra Leone, as a minor skirmish between smugglers and border patrol police, but this soon blossomed into a full-scale civil war that involved both local and international actors and traumatised the small West Africa (...truncated)