Transitional Justice in the Twenty-First Century: Beyond Truth versus Justice by Naomi Roht-Arriaza
Authors: Naomi Roht-Arriaza
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1478 urge third states to cooperate with the Special Court. [57] However, these provisions lack Chapter VII enforcement powers. [58] Nonetheless, Liberia cooperated with the Special Court when a Liberian district court issued search warrants for Taylor's homes in Monrovia to Special Court officials in March 2004. [59] The lack of Chapter VII powers explains in part the Court's long failure to obtain custody overCharles Taylor, who at the time of writing this chapter resided in Nigeria where he was granted asylum.
There were other forms of pressure encouraging the surrender of Taylor to the Court. UN Security Council Resolution 1532, issued pursuant toChapter VII, calls on all states to freeze funds and assets owned or controlled by Taylor. [60] Interpol, pursuant to the Court's request, issued a Red Notice against Charles Taylor on December 4, 2003. [61] The Special Court's Prosecutor frequently met with US, European and West African government officials in an effort to encourage, through diplomatic means, international pressure on Nigeria to surrenderTaylor to the Court. [62] In the meetings it was stressed that since Nigeria is party to theConvention against Torture and theGenevaConventions, it must pursuant to those treaties either extradite or prosecute suspects of war crimes and torture.
The structure of the Special Court
In accordance with Article 11 of the Statute , the Court's structure resembles the tripartite organization of the ad hoc tribunals and theInternational Criminal Court (ICC), consisting of the Chambers, Registry and Office of the Prosecutor. However, in accordance with Rule 45 of the Special Court Rules, the Court also uniquely incorporates a Defense Office, which despite having been set up by the Registry, functions independently from the latter. [63] Examination of the experience of defense counsel at theICTR, who complained about the lack of resources and the poor quality of assistance received from the Tribunal, brought about the creation of the Special Court's Defense Office. [64] The Defense Office is headed by the Principal Defender and its functions include giving initial advice and assistance to suspects and accused persons, providing administrative and substantive support to defense counsel, and assigning defense counsel to suspects and accused persons who lack the financial means to secure legal representation.
The Court's Chambers comprise two Trial Chambers and an Appeals Chamber, the former consisting each of three judges (one nominated by the Government of Sierra Leone and two by the UN Secretary‐General), and the latter consisting of five judges (two nominated by the Government and three by the UN Secretary‐General). Almost half of the judges are African (five out of eleven), a characteristic that could mitigate public opposition based on a view that the Court is a “Western imposition.” [65]
Jurisprudential contribution
The Special Court's jurisprudence contributes to the development of international criminal law. In establishing, for example, that a “forced marriage” constitutes a crime against humanity, [66] and that the recruitment of children under fifteen to an armed force constitutes a serious violation of international humanitarian law, [67] the universal prohibition of these acts is strengthened. This development, in turn, could have ramifications within Sierra Leone, since awareness of the Court's decisions regarding the international prohibition of such acts may help prevent their reoccurrence in Sierra Leone.
Two landmark decisions by the Special Court's Appeals Chamber which not only enrich the jurisprudence of international criminal lawbut also bear the potential to promote deterrence in Sierra Leone, are those asserting that neither the position of an accused as a head of state nor the granting of a national amnesty to perpetrators, preclude prosecution for international crimes by international tribunals. [68] These two decisions may operate
There were other forms of pressure encouraging the surrender of Taylor to the Court. UN Security Council Resolution 1532, issued pursuant toChapter VII, calls on all states to freeze funds and assets owned or controlled by Taylor. [60] Interpol, pursuant to the Court's request, issued a Red Notice against Charles Taylor on December 4, 2003. [61] The Special Court's Prosecutor frequently met with US, European and West African government officials in an effort to encourage, through diplomatic means, international pressure on Nigeria to surrenderTaylor to the Court. [62] In the meetings it was stressed that since Nigeria is party to theConvention against Torture and theGenevaConventions, it must pursuant to those treaties either extradite or prosecute suspects of war crimes and torture.
The structure of the Special Court
In accordance with Article 11 of the Statute , the Court's structure resembles the tripartite organization of the ad hoc tribunals and theInternational Criminal Court (ICC), consisting of the Chambers, Registry and Office of the Prosecutor. However, in accordance with Rule 45 of the Special Court Rules, the Court also uniquely incorporates a Defense Office, which despite having been set up by the Registry, functions independently from the latter. [63] Examination of the experience of defense counsel at theICTR, who complained about the lack of resources and the poor quality of assistance received from the Tribunal, brought about the creation of the Special Court's Defense Office. [64] The Defense Office is headed by the Principal Defender and its functions include giving initial advice and assistance to suspects and accused persons, providing administrative and substantive support to defense counsel, and assigning defense counsel to suspects and accused persons who lack the financial means to secure legal representation.
The Court's Chambers comprise two Trial Chambers and an Appeals Chamber, the former consisting each of three judges (one nominated by the Government of Sierra Leone and two by the UN Secretary‐General), and the latter consisting of five judges (two nominated by the Government and three by the UN Secretary‐General). Almost half of the judges are African (five out of eleven), a characteristic that could mitigate public opposition based on a view that the Court is a “Western imposition.” [65]
Jurisprudential contribution
The Special Court's jurisprudence contributes to the development of international criminal law. In establishing, for example, that a “forced marriage” constitutes a crime against humanity, [66] and that the recruitment of children under fifteen to an armed force constitutes a serious violation of international humanitarian law, [67] the universal prohibition of these acts is strengthened. This development, in turn, could have ramifications within Sierra Leone, since awareness of the Court's decisions regarding the international prohibition of such acts may help prevent their reoccurrence in Sierra Leone.
Two landmark decisions by the Special Court's Appeals Chamber which not only enrich the jurisprudence of international criminal lawbut also bear the potential to promote deterrence in Sierra Leone, are those asserting that neither the position of an accused as a head of state nor the granting of a national amnesty to perpetrators, preclude prosecution for international crimes by international tribunals. [68] These two decisions may operate
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