Absolute and Free Pardon: The Effect of the Amnesty Provision in the Lome Peace Agreement on the Jurisdiction of the Special Court for Sierra Leone

Brooklyn Journal of International Law Volume 27 Issue 1 SYMPOSIUM: Fourth Annual Latin American Round Table on Competition & Trade Article 10 2001 Absolute and Free Pardon: The Effect of the Amnesty Provision in the Lome Peace Agreement on the Jurisdiction of the Special Court for Sierra Leone Daniel J. Macaluso Follow this and additional works at: https://brooklynworks.brooklaw.edu/bjil Recommended Citation Daniel J. Macaluso, Absolute and Free Pardon: The Effect of the Amnesty Provision in the Lome Peace Agreement on the Jurisdiction of the Special Court for Sierra Leone, 27 Brook. J. Int'l L. (2001). Available at: https://brooklynworks.brooklaw.edu/bjil/vol27/iss1/10 This Note is brought to you for free and open access by the Law Journals at BrooklynWorks. It has been accepted for inclusion in Brooklyn Journal of International Law by an authorized editor of BrooklynWorks. ABSOLUTE AND FREE PARDON: THE EFFECT OF THE AMNESTY PROVISION IN THE LOME PEACE AGREEMENT ON THE JURISDICTION OF THE SPECIAL COURT FOR SIERRA LEONE "The names of the rebel offensives speak for themselves: Operation Burn House, was a series of arson attacks. Operation Pay Yourself, a programme of looting, and - most sinisterof all - OperationNo Living Thing."' I. INTRODUCTION In 1991, the West African country of Sierra Leone erupted in a civil conflict that has endured to the present. Hundreds of thousands have suffered at the hands of the rebels, whose composition includes younger boys and men who were abducted, drugged, and forced to carry out the gruesome campaigns of the rebel leaders. The rebel movement allegedly began in order to fight against government corruption, but after a president was democratically elected under United Nations ("UN") monitoring, the rebels persisted, refusing to relinquish control of the rich 1. Caroline Hawley, A Country Torn By Conflict, BBC NEWS ONLINE (Jan. 12, 1999), at http'/news.bbc.co.uk/hi/englisb/specialreportl 1999/01/99/ierraleone/newsid_251000/251377.stm. 348 BROOK. J. INTL L. [Vol. XXVII: 1 diamond areas of the country. Since 1996, the government and the rebels have tried four times to negotiate peace agreements in order to end the conflict. Both sides signed the third, and most comprehensive, peace agreement, on July 7, 1999, in the Togolese capital of Lom6. This agreement, known as the Lom6 Peace Agreement, contained a controversial "blanket" amnesty, which granted absolute and free pardon to anyone involved in the conflict for any act committed. At the time of the signing, the Special Representative to the United Nations attached to his signature a disclaimer that provided that the amnesty would not apply to violations of international crimes. As the terms of the Lom6 Peace Agreement were repeatedly violated by the rebels, the government, in June 2000, asked the UN Security Council to create a court to try the worst of the offenders. Subsequently, the UN Secretary-General negotiated with the government, pursuant to a treaty-like document, the creation of a criminal court ("Special Court" or "Court") that would be Sierra Leone specific, i.e. it incorporates provisions of Sierra Leonean domestic criminal law into its subject-matter jurisdiction. The statute of the Court purports to set the temporal jurisdiction of the Court at November 30, 1996, for violations of both international and domestic crimes, in flagrant disregard of the amnesty provision in the Lom6 Peace Agreement, which would preclude prosecutions up to the moment of the signing. The contention that amnesty provisions cannot, without violating international law, bar prosecutions for international crimes is far from settled, and although the UN might be able to successfully argue this point in the context of the Special Court for Sierra Leone, the same precept does not apply to prosecutions of domestic crimes. On the contrary, the pardon in the Lom6 Peace Agreement is in full force and must be honored by the government if it intends to achieve everlasting peace in its ravaged country. This Note attempts to examine the application of the amnesty provision contained in the Lom6 Peace Agreement on the ability of the Special Court to try those "most responsible" for violations of Sierra Leonean criminal law. The Note is divided into six parts. Parts II and 2001] LOME PEACE AGREEMENT 349 III describe the history of the conflict and the creation of the Special Court. Part IV analyzes the amnesty provision of the Lom6 Peace Agreement. Part V discusses the use of Sierra Leonean law in the Special Court, and briefly describes the substance of each law and purpose for its inclusion into the subject-matter jurisdiction of the Court. Part VI establishes how the amnesty provision in the peace agreement will limit the temporal jurisdiction of the Court with respect to violations of domestic law, and signals the flaw in the reasoning of the Secretary-General in his report to the Security Council'. Part VII will suggest some tactics that the government could employ to circumscribe the effect of the amnesty, and maintain its legitimacy in the peace process. II. BACKGROUND The conflict in Sierra Leone is long and complicated, and dates back to March 1991, when Revolutionary United Front ("RUF") combatants launched a war to overthrow the government. Captain Valentine Strasser, the new government leader, promised there would be multiparty elections, the first since 1967. Unfortunately, this promise was not fulfilled, and Strasser was deposed in a palace coup by a military junta that finally organized multi-party elections. The people of Sierra Leone democratically elected Ahmed Tejan Kabbah of the Sierra Leone People's Party, in February 1996, under UN supervision. The RUF had previously refused to recognize the election results, but on November 30, 1996, Foday Sankoh, leader of the rebel movement, signed the Abidjan Accord,2 which purported to end the conflict. This victory was short lived, for on May 25, 1997, another military coup, led by General Johnny Paul Koroma and comprised of both the national army and the RUF, deposed President Kabbah and 2. See generally Sierra Leone Timeline, BBC NEWS ONLINE (Aug. 31, 2000), at http'//news.bbc.co.uk/hi/english/world/africa/newsid_741000/ 741070.stm; Sierra Leone UNAMSIL Background, at http'/www.un.org(Depts/dpko /unamsillUnamsilB.htm (last visited Oct. 1, 2001); Crisis in Sierra Leone, BBC NEWS ONLINE (July 28, 2000), at http'//news.bbc.co.uk/hi/english/in~depth/africa/2000/sierraleone/ default.stm. 350 BROOK. J. INTL L. [Vol. XXVII:I sent him fleeing into neighboring Guinea. 3 President Kabbah returned to Freetown, the capital of Sierra Leone, on March 10, 1998, after the intervention of the Nigerian peacekeeping forces, or Economic Community Military Observer Group ("ECOMOG"). 4 The fighting continued, and by December 1998, the rebels had gained control of more than half of Sierra Leone, and by January 1999, had overrun most of Freetown. 5 (...truncated)