War Crimes before the Special Court for Sierra Leone

Transcription

1 ARTICLES War Crimes before the Special Court for Sierra Leone Child Soldiers, Hostages, Peacekeepers and Collective Punishments Sandesh Sivakumaran* Abstract This article considers selected war crimes in the jurisprudence of the Special Court for Sierra Leone, namely the recruitment and use of child soldiers, collective punishments, attacks on peacekeepers and the taking of hostages. Each of these crimes suffers from a dearth of international jurisprudence. Accordingly, the Special Court has made an important contribution to the clarification of war crimes law, even if disagreement is to be had with some of its pronouncements on point. The article sets out and critiques the various pronouncements of the Special Court on these four issues. 1. Introduction The Special Court for Sierra Leone has been neglected somewhat by the international legal community, especially when compared to the attention paid to its sister tribunal, the International Criminal Tribunal for the former Yugoslavia (ICTY). It is true that the Special Court often applies the case law of the ICTY and the International Criminal Tribunal for Rwanda (ICTR) ç though it also departs from it on occasion 1 ç but this should come as no * Lecturer, School of Law, University of Nottingham. I would like to thank Matthew Happold, James Sloan, James Stewart, and the anonymous referees for their comments on earlier versions of this article. I had the benefit of many interesting discussions with Joakim Dungel, Steve Kostas, Simon Meisenberg and Kathryn Smyth while at the Special Court in Naturally, any opinions expressed in this article are mine alone. [sandesh.sivakumaran@nottingham.ac.uk] 1 Cf. e.g. Decision on Interlocutory Appeal Challenging Jurisdiction in Relation to Command Responsibility, Hadzihasanovic, Alagic and Kubura (IT AR72), Trial Chamber, 16 July 2003; Judgment, Sesay, Kallon and Gbao ( RUF ) (SCSL T), Trial Chamber, 2 March 2009, xx 294^ Journal of International Criminal Justice 8 (2010), 1009^1034 doi: /jicj/mqq056 ß Oxford University Press, 2010, All rights reserved. For permissions, please journals.permissions@oxfordjournals.org

2 1010 JICJ 8 (2010), 1009^1034 surprise given the similarity of subject matter before the three institutions. Indeed, the Special Court is specifically mandated to have regard to the work of the ad hoc Tribunals. 2 The neglect is rather regrettable given that the Special Court has considered issues which, although not particular to the armed conflict in Sierra Leone, were brought into focus by it (for instance, the recruitment or use of child soldiers), or which suffered from a dearth of international jurisprudence on point (such as the taking of hostages, or attacks on peacekeepers). This article critiques the jurisprudence of the Special Court on selected war crimes, identifies its salient contributions and notes its shortcomings. In an article-length treatment of this subject, the issues canvassed are necessarily selective. Omitted from discussion, in particular, is the contribution of the Special Court to certain broader aspects of international criminal law. These omissions include its important rulings on head-of-state immunity and on the relationship between amnesties and criminal prosecutions. 3 Also conspicuous by way of its absence is any discussion on the crime of forced marriage, which has been analysed amply elsewhere. 4 Procedural developments are omitted entirely. And even insofar as war crimes law is considered, matters dealt with by the ICTY and ICTR are not considered here, even though, despite the overlap, the Special Court has made occasional contribution. One such example is the holding that burning and other acts of destruction of property not amounting to appropriation as a matter of law, cannot constitute pillage under international criminal law. 5 Instead, this article deals with what this author perceives to be some of the more significant pronouncements of the Special Court on war crimes law: the recruitment and use of child soldiers; collective punishments; attacks on peacekeepers and the taking of hostages. Inevitably, then, it is an analysis of 2 Art. 20(3) SCSLSt. provides that [t]he judges of the Appeals Chamber of the Special Court shall be guided by the decisions of the Appeals Chamber of the International Tribunals for the former Yugoslavia and for Rwanda. See also Art. 14(1) SCSLSt. (on the Rules of Procedure and Evidence) and Art. 19(1) SCSLSt. (on sentencing). 3 Decision on Immunity from Jurisdiction, Taylor (SCSL I), Appeals Chamber, 31 May 2004; Decision on Challenge to Jurisdiction: Lome Accord Amnesty, Kallon and Kamara (SCSL AR72; SCSL AR72), Appeals Chamber, 13 March See e.g. M. Frulli, The Question of Charles Taylor s Immunity: Still in Search of a Balanced Application of Personal Immunities? 2 Journal of International Criminal Justice (JICJ) (2004) 1118; A. Cassese, The Special Court and International Law: The Decision Concerning the Lome Agreement Amnesty, 2 JICJ (2004) See e.g. N. Jain, Forced Marriage as a Crime Against Humanity: Problems of Definition and Prosecution, 6 JICJ (2008) 1013; M. Frulli, Advancing International Criminal Law: The Special Court for Sierra Leone Recognizes Forced Marriage as a New Crime Against Humanity, 6 JICJ (2008) 1033; V. Oosterveld, The Special Court for Sierra Leone s Consideration of Gender-Based Violence: Contributing to Transitional Justice?, 10 Human Rights Review (2009) 73; J. Gong-Gershowitz, Forced Marriage: A New Crime Against Humanity? 8 Northwestern Journal of International Human Rights (2009) Judgment, Fofana and Kondewa ( CDF ) (SCSL A), Appeals Chamber, 28 May 2008, x 409. See generally xx 380^409.

3 War Crimes before the Special Court for Sierra Leone 1011 the work of the Special Court through one particular lens. Of course, significance of pronouncement should not be confused with total and unqualified agreement. Some of the positions taken by the Special Court suffer from a lack of clarity or conceptual confusion. Accordingly, the article subjects the jurisprudence of the Special Court in these areas to respectful critique. 2. Child Soldiers A. The Nature of the Offence(s) In recent years, the issue of the recruitment and use of child soldiers has been at the forefront of the concern of the international community. Various provisions and instruments exist on the subject, in diverse areas of international law. 6 At the UN level, UNICEF, the Office of the Special Representative of the Secretary-General for Children and Armed Conflict and the Security Council Working Group on Children and Armed Conflict all work on tackling the problem of child soldiers. For its part, international criminal law also has a role to play. However, to date, there has been some disagreement as to the precise nature of the offence(s) involving child soldiers. Is the crime one of recruitment, enlistment, conscription, initiation or use? Is it one crime or several crimes? It will be recalled that the Statute of the Special Court refers in Article 4(c) to: [c]onscripting or enlisting children under the age of 15 years into armed forces or armed groups or using them to participate actively in hostilities. The Trial and Appeal Chambers of the Special Court have taken the view that there is but one crime, which may be carried out in three different ways. The Appeals Chamber in the CDF case, 7 for example, observed that [t]he actus reus requires that the accused recruited children by way of conscripting or enlisting them or that the accused used children to participate actively in hostilities. 8 Similarly, the AFRC Trial Chamber noted that [t]he actus reus of the crime can be satisfied by conscripting or enlisting children under the age of 15, or by using them to participate actively in hostilities. 9 It is suggested, however, that there are two distinct crimes ^ recruitment on the 6 See e.g. Art. 38, Convention on the Rights of the Child; Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflicts; Art. 3(a) ILO Convention concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour (C182) (1999); Art. 77(2), Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts of 8 June 1977; Art. 4(3)(c), Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts of 8 June 1977; Arts 8(2)(b)(xxvi) and 8(2)(e)(vii) ICCSt. 7 For ease of reference, the cases will be referred to by the acronym of the relevant organization. Of course, as the various judgments have been at pains to stress, the cases were not against the groups but against particular individuals involved therewith. 8 CDF Appeal Judgment, supra note 5, at x Judgment, Brima, Kamara and Kanu ( AFRC ) (SCSL T),Trial Chamber, 20 June 2007, x733.

4 1012 JICJ 8 (2010), 1009^1034 one hand, which may be carried out by means of conscription or enlistment and use on the other hand. 10 Recruitment (which can comprise of conscription or enlistment) is of an entirely different nature to use. Conscription and enlistment go to the manner in which the child became associated with the armed forces or the armed group; use relates to the way in which the child was utilized. A child may be conscripted or enlisted without later being used; and may be used without having first been conscripted or enlisted. 11 The idea that the provision gives rise to a single crime may stem from its inclusion in the Statute of the Special Court, or in the Rome Statute of the International Criminal Court, in a single article. In the jurisprudence of the Special Court, the view that there is but one crime can be traced back to the Norman Child Recruitment Decision and its use of the term child recruitment as a short form for Article 4(c) of the Statute as a whole, thus covering conscription, enlistment and use alike. 12 However, the focus of the Norman Child Recruitment Decision was on whether enlistment was criminally proscribed at the time of the conduct charged. Accordingly, a certain degree of care is needed before the language of that Decision is applied outside its narrow confines. Recruitment does not and cannot encompass use; 13 rather, it covers conscription and enlistment. That these are two separate, albeit related, issues is clear from Additional Protocol II, which provides in relevant part that, children who have not attained the age of fifteen years shall neither be recruited in the armed forces or groups nor allowed to take part in hostilities. 14 It is true that the International Committee of the Red Cross (ICRC) Commentary to Additional Protocol II reads: [t]he principle of non-recruitment also prohibits accepting voluntary enlistment. Not only can a child not be recruited, or enlist himself, but furthermore he will not be allowed to take part in hostilities. 15 However, this has to be read in light of the Additional Protocol II provision itself, which refers to recruitment separately from participation. The passage in the Commentary cannot, then, be taken as supporting the view, as the CDF Appeal Judgment does, 16 that recruitment encompasses use. That recruitment and use are two distinct crimes has certain practical 10 See Dissenting Opinion of Justice Robertson, Decision on Preliminary Motion based on Lack of Jurisdiction (Child Recruitment), Norman (SCSL AR72(E)), Appeals Chamber, 31 May 2004, x See A. Smith, Child Recruitment and the Special Court for Sierra Leone, 2 JICJ (2004) 1141, at 1147^1148; M. Happold, Child Recruitment as a Crime under the Rome Statute of the International Criminal Court, in J. Doria, H.-P. Gasser, and M.C. Bassiouni (eds), The Legal Regime of the International Criminal Court: Essays in Honour of Professor Igor Blischenko (Leiden: Martinus Nijhoff, 2009), at Norman Child Recruitment Decision, supra note 10, at x This was the view of the CDF Trial Chamber: see Judgment, Fofana and Kondewa (SCSL T), Trial Chamber, 2 August 2007, x Art. 4(3)(c), Additional Protocol II. 15 International Committee of the Red Cross, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (Geneva: ICRC, 1987) CDF Appeal Judgment, supra note 5, at xx 142^143.

5 War Crimes before the Special Court for Sierra Leone 1013 consequences, particularly in the areas of duplicitous charging and cumulative convictions. If recruitment and use are indeed two distinct crimes, their precise contours require delineation. To this we now turn. B. Recruitment 1. Conscription Surprisingly little has been written on conscription, whether judicially or extra-judicially, with attention being focused on enlistment. This is surprising as reportage suggests that children are forced to serve more frequently than they volunteer to serve in armed forces or armed groups. Of course, it may be that, evidentially, it is more difficult to prove conscription than it is enlistment and so the focus of prosecutions tends to be on the latter. In the Norman Child Recruitment Decision, Justice Robertson described conscription as impl[ying] some use of force, impl[ying] compulsion, albeit in some cases through force of law. 17 The key element, then, is some form of compulsion, with the precise nature of the compulsion being a secondary consideration. It would cover the abduction of persons for specific use within an organization or the forced military training of persons ::: both practices amount to compelling a person to join an armed group. 18 This idea of compulsion was picked up by the AFRC Trial Chamber, which repeated Justice Robertson s view and interpreted conscription as encompass[ing] acts of coercion, such as abductions and forced recruitment ::: committed for the purpose of using them to participate actively in hostilities. 19 Aside from this latter requirement ç which it is argued below is misconceived 20 çtheinterpretation is an important one. The Trial Chamber recognized that the orthodox view of conscription refers to government policies requiring citizens to serve in their armed forces. Yet in light of the possibility ç indeed reality ç of conscription into non-state armed groups, the term cannot be interpreted in such a narrow manner. 21 The law is being interpreted to serve its intended purpose, namely to encompass all parties to an internal armed conflict. 22 Conscription is, then, the form of child recruitment that immediately comes to mind ç the abducted child forced to serve in the armed forces. However, the enlistment of a child is equally prohibited. The line between enlistment and conscription is not altogether clear. Ultimately, though, a child s consent 17 Norman Child Recruitment Decision, Dissenting Opinion of Justice Robertson, supra note 10, at xx 1 and 5 respectively. See also at x RUF Trial Judgment, supra note 1, at x AFRC Trial Judgment, supra note 9, at x See below, Section 2B2(b). 21 AFRC Trial Judgment, supra note 9, at x As the AFRC Trial Chamber noted, international humanitarian law is not grounded on formalistic postulations. Ibid.

6 1014 JICJ 8 (2010), 1009^1034 cannot be a valid defence to the crime 23 and so any distinction between conscription and enlistment goes to the severity of the crime and resulting punishment rather than whether or not the act is criminal Enlistment (a) Actus reus The AFRC Trial Chamber, echoing earlier statements of Justice Robertson, noted of enlistment: [e]nlistment entails accepting and enrolling individuals when they volunteer to join an armed force or group. 25 For the CDF Trial Chamber: voluntary enlistment is but one type of enlistment ::: the term enlistment could encompass both voluntary enlistment and forced enlistment. 26 Were the position of the CDF Trial Chamber to be adopted, it would render redundant the reference to conscription in the Statute. Understandably, then, the CDF Appeals Chamber preferred the approach of the AFRC Trial Chamber. 27 The CDF Appeals Chamber held that for enlistment, there must be a nexus between the act of the accused and the child joining the armed force or group. 28 Although the existence of the requisite nexus has to be determined on a case-by-case basis, the Appeals Chamber did provide some guidance. In the context of unconventional military organizations, primarily armed groups, enlistment cannot narrowly be defined as a formal process. Rather, it should be regarded in the broad sense as including any conduct accepting the child as a part of the militia. This would include making [the child] participate in military operations. 29 This general approach is a useful one, as once again, it takes cognizance of the actual workings of armed groups and the settings in which they operate. However, care needs to be taken in order to avoid conflating use with enlistment or making use a subset of enlistment. Thus, this passage should not be read as taking the view that use of a child to take an active part in hostilities automatically constitutes enlistment of that child. Rather, it should be 23 CDF Appeal Judgment, supra note 5, Partially Dissenting Opinion of Honourable Justice Renate Winter, at x 11 fn See also AFRC Trial Judgment, supra note 9, at x 735; CDF Trial Judgment, supra note 13, at x 192; RUF Trial Judgment, supra note 1, at x However, various Judges and Chambers of the Special Court have taken the view that any distinction between conscription and enlistment is of little practical significance : CDF Appeal Judgment, supra note 5, Partially Dissenting Opinion of Justice Winter, at x 11, note See also AFRC Trial Judgment, supra note 9, at x 735; CDF Trial Judgment, supra note 13, at x 192; RUF Trial Judgment, supra note 1, at x AFRC Trial Judgment, supra note 9, at x 735. See also Norman Child Recruitment Decision, Dissenting Opinion of Justice Robertson, supra note 10, at xx 5 and CDF Trial Judgment, supra note 13, at x CDFAppeal Judgment, supra note 5, at x 140. See also RUF Trial Judgment, supra note 1, at x CDF Appeal Judgment, ibid., at x Ibid., atx 144.

7 War Crimes before the Special Court for Sierra Leone 1015 understood as suggesting that such use of a child, in certain circumstances, may be considered evidence of enlistment. It does not alter the status as an independent offence of the use of a child to take an active part in hostilities. Along similar lines, Justice Winter opined that the crucial test was whether the act in question substantially furthers the process of a child s enrolment and acceptance into an armed force or group. 30 This furtherance may be a very short process and may constitute a single act or it may be a process involving several acts. 31 As an example of the latter, Justice Winter noted that [r]eligious initiation, military training and the signing of a certificate declaring a child fit for combat may all be acts that substantially further a child s enlistment. 32 This is important for it suggests that enlistment is not a one-off act but may be a series of continuing acts. 33 Justice Winter continued: In the situation where there are no formal or informal processes for enlisting individuals, especially children, the use of a child to participate actively [in] hostilities may amount to enlistment. However, where the evidence demonstrates the existence of a process that contributes to the enrolment and acceptance of a child into an armed force or group, logic dictates that use of a child cannot constitute enlistment. 34 This serves as a useful clarification of the potentially broader view taken by the majority of the Appeals Chamber. (b) Mens rea The CDF Appeals Chamber went on to state that [t]here must also be knowledge on the part of the accused that the child ::: may be trained for combat. 35 To require such knowledge on the part of the accused is rather curious, though admittedly this does have the benefit of supporting authority. 36 Even if it were to be accepted that there should be an element of knowledge in the mens rea, it is suggested that knowledge ::: that the child ::: may be trained for combat is not the correct type of knowledge. First of all, the inclusion of any purpose requirement is questionable. Conscription and enlistment in all their forms are prohibited, not only certain sub-sets thereof, that is, conscription or enlistment with the purpose of active participation. The construction and language of the statutory provision is quite clear on this point. What is prohibited is [c]onscripting or enlisting children under the age of 15 years 30 Ibid., Partially Dissenting Opinion of Justice Winter, at x Ibid., atx Ibid. 33 For the view that it is a one-off act, see M. Cottier, Article 8(2)(b)(xxvi), in O. Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court (Mu«nchen: Beck, 2008), at 472 mn CDF Appeal Judgment, Partially Dissenting Opinion of Justice Winter, supra note 5, at x CDF Appeal Judgment, supra note 5, at x 141. See also RUF Trial Judgment, supra note 1, at xx 190, Norman Child Recruitment Decision, Dissenting Opinion of Justice Robertson, supra note 10, at x 46.

8 1016 JICJ 8 (2010), 1009^1034 into armed forces or armed groups or using them to participate actively in hostilities. 37 The active participation element thus relates solely to the use of children, not to their conscription or enlistment. This would also accord with the situation on the ground. As the RUF Trial Judgment reveals, it is often only subsequent to conscription that children are screened to ascertain their suitability for combat operations, with those considered unfit for combat being given logistical tasks and those considered fit being sent for military training. 38 It is also interesting to note that such a requirement is not present in the International Criminal Court (ICC) s Elements of Crimes. 39 Second, if, for whatever reason, the offence is considered to require a purpose requirement, it is not training for combat that is required but training for active participation in hostilities. This is not unimportant, for combat and active participation in hostilities are not synonymous with one another, with the former being but a subset of the latter. 40 Third, the statement should not be understood as referring only to actual knowledge but should be interpreted as including imputed knowledge. Indeed, this was the view of the CDF Trial Chamber. 41 It is also the view of other Chambers, at least insofar as the age of the child is concerned. 42 Two reasons may explain the approach of the Appeals Chamber. First, it may be that the Chamber was guided by the particular way in which the offence was charged by the Prosecution. In the AFRC and RUF cases, the paragraph framing the charge reads: At all times relevant to this Indictment, throughout the Republic of Sierra Leone, AFRC/RUF routinely conscripted, enlisted and/or used boys and girls under the age of 15 to participate in active hostilities. 43 However, the Count itself provides: Conscripting or enlisting children under the age of 15 years into armed forces or groups, or using them to participate actively in hostilities. 44 Other indictments were clearer. In the CDF case, the allegation was that the Civil Defence Forces did ::: initiate or enlist children 37 Art. 4(c) SCSLSt. (emphasis added). 38 RUF Trial Judgment, supra note 1, xx 1618^ See Art. 8(2)(b)(xxvi) and Art. 8(2)(e)(vii), Elements of Crimes. 40 See e.g. the distinction drawn by the Preparatory Committee of the Establishment of an International Criminal Court between combat and military activities linked to combat : Report of the Preparatory Committee on the Establishment of an International Criminal Court, Addendum, Doc. A/CONF.183/2/Add.1, 14 April 1998, x 21, note 12. See also the examples of direct participation in hostilities listed in International Committee of the Red Cross, Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law (Geneva: ICRC, 2009), at Chapter B.V CDF Trial Judgment, supra note 13, at x 195. See also Art. 8(2)(b)(xxvi), Elements of Crimes. 42 RUF Trial Judgment, supra note 1, at x 190 ( knew or had reason to know ); AFRC Trial Judgment, supra note 9, at x 729 ( knew or should have known ). See also Separate Concurring Opinion of Justice Renate Winter, Sesay, Kallon and Gbao ( RUF ) (SCSL A), Appeals Chamber, 26 October 2009, at xx 2^4 ( knew or should have known ). 43 Further Amended Consolidated Indictment, Brima, Kamara and Kanu ( AFRC ) (SCSL PT), x 65; Corrected Amended Consolidated Indictment, Sesay, Kallon and Gbao ( RUF ) (SCSL PT), x Brima, Kamara and Kanu, ibid., Count 12; Sesay, Kallon and Gbao, Ibid., Count12.

9 War Crimes before the Special Court for Sierra Leone 1017 under the age of 15 years into armed forces or groups, and in addition, or in the alternative, use them to participate actively in hostilities. 45 Second, and more likely, the Appeals Chamber was influenced, albeit indirectly, by an earlier version of the Special Court Statute rather than by the Statute in its final form. The CDFAppeals Chamber expressly based its particular requirement of knowledge on Justice Robertson s Dissenting Opinion in the Norman Child Recruitment Decision. 46 In his Dissenting Opinion, Justice Robertson held that the narrower crime of [a]bduction and forced recruitment of children under the age of 15 years into armed forces or groups for the purpose of using them to participate actively in hostilities was a crime under customary international law during the period in question; however, in his view, the broader crime of [c]onscripting or enlisting children under the age of 15 years into armed forces or armed groups or using them to participate actively in hostilities was not. 47 The language of the former, which does require recruitment with a particular purpose in mind, was taken from the draft Special Court Statute proposed by the UN Secretary-General, while the language of the latter, which de-links recruitment from any particular use, is taken from the final version of the Statute. 48 Accordingly, the CDF Appeals Chamber, in basing its view on Justice Robertson s Dissent, seemingly overlooked the fact that Justice Robertson was influenced by a draft version of the Special Court Statute and that the majority of the Appeals Chamber in the Norman Child Recruitment Decision disagreed with Justice Robertson s conclusion on point. C. Use to Participate Actively in Hostilities The jurisprudence of the Special Court has given us some useful indicia as to what does and does not constitute active participation in hostilities. Even if there is disagreement as to which side of the line certain actions fall, it remains a useful baseline from which to work. One of the guiding principles followed by the Special Court as to where the particular conduct falls is that active participation includes both participation in combat and active participation in military activities linked to combat. 49 This reflects a footnote contained in a report of the Preparatory Committee 45 Indictment, Norman, Fofana, Kondewa ( CDF ) (SCSL I), x 29. Count 8 reads: Enlisting children under the age of 15 years into armed forces or groups or using them to participate actively in hostilities. 46 CDF Appeal Judgment, supra note 5, at x 141 and note Norman Child Recruitment Decision, Dissenting Opinion of Justice Robertson, supra note 10, at xx 4 and For the former language, see Art. 4 Draft SCSLSt. (emphasis added); Report of the Secretary-General on the Establishment of a Special Court for Sierra Leone, Doc. S/2000/915, 4 October 2000, x 17. For the latter, see Art. 4 SCSLSt. 49 AFRC Trial Judgment, supra note 9, xx 736^737; RUF Trial Judgment, supra note 1, at xx 188, 1720; CDF Trial Judgment, supra note 13, at x 193.

10 1018 JICJ 8 (2010), 1009^1034 on the Establishment of an International Criminal Court, the language of which is considered to reflect the understanding of delegates. 50 It is worth setting out that footnote in large part: The words using and participate have been adopted in order to cover both direct participation in combat and also active participation in military activities linked to combat such as scouting, spying, sabotage and the use of children as decoys, couriers or at military checkpoints. It would not cover activities clearly unrelated to the hostilities such as food deliveries to an airbase of [sic] the use of domestic staff in an officer s married accommodation. However, use of children in a direct support function such as acting as bearers to take supplies to the front line, or activities at the front line itself, would be included within the terminology. 51 Accordingly, military activities linked to combat fall within the definition of active participation. From the jurisprudence of the Special Court, this would include the use of children: in combat; 52 in armed patrols; 53 to guard military objectives; 54 as spies; 55 as bodyguards to commanders; 56 as human shields 57 and to man checkpoints. 58 It is equally clear that activities clearly unrelated to the hostilities would not fall within the term. Again, from the jurisprudence of the Special Court, the term would not include the use of children for domestic labour, 59 to forage food 60 or to undertake domesticated jobs of a purely civilian character like cooking, food finding, laundry or running routine errands. 61 More difficult is the intermediate status ç the grey area ç of certain support functions. The statement of the AFRC Trial Chamber that, [a]ny labour or support that gives effect to, or helps maintain, operations in a conflict constitutes active participation 62 is problematic by reason of its breadth. 50 See C. Garraway, Article 8(2)(b)(xxvi)-Using, Conscripting or Enlisting Children, in R.S. Lee (ed.), The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence (Ardsley: Transnational, 2001), at 206; Cottier, supra note 33, at Report of the Preparatory Committee on the Establishment of an International Criminal Court, Addendum, Doc.A/CONF.183/2/Add.1,14April1998,x 21, note RUF Trial Judgment, supra note 1, xx 1710^1743; CDF Trial Judgment, supra note 13, Separate and Partially Dissenting Opinion only on Count 8 of Hon. Justice Benjamin Mutanga Itoe, Presiding Judge of the Chamber on the Judgement of the Learned Justices of Trial Chamber I in the Case of Moinina Fofana and Allieu Kondewa, at x RUF Trial Judgment, supra note 1, xx 1710^ Ibid.; CDF Trial Judgment, Separate and Partially Dissenting Opinion of Justice Itoe, supra note 52, at x 10. See also Decision on the Confirmation of Charges, Thomas Lubanga Dyilo (ICC-01/04-01/06), Pre-Trial Chamber, 29 January 2007, xx 261^ See supra note See supra note AFRC Trial Judgment, supra note 9, at x 737. See also at x Ibid., x737; CDF Trial Judgment, Separate and Partially Dissenting Opinion of Justice Itoe, supra note 52, at x RUF Trial Judgment, supra note 1, xx 1710^ Ibid., xx 1710^ CDF Trial Judgment, Separate and Partially Dissenting Opinion of Justice Itoe, supra note 52, at x 13. See also Lubanga, supra note 54, at x AFRC Trial Judgment, supranote 9, at x 737 (emphasis added).

11 War Crimes before the Special Court for Sierra Leone 1019 Accordingly, the determination that carrying loads for the fighting faction, finding and/or acquiring food, ammunition or equipment, acting as decoys, carrying messages, making trails or finding routes ::: are some examples of active participation as much as actual fighting and combat 63 should be taken with some caution. It may well be that the acting as a decoy, or the finding of ammunition can, in a particular instance, amount to active participation in hostilities. However, that can only be judged on a case-by-case basis and it would be imprudent to pronounce in advance that all these actions, as a matter of course, amount to active participation. It is sometimes said that the consequence of all this is to privilege boys over girls. 64 The argument is that boys ç who are often tasked with combat and combat-related activities ç will benefit from these protections, while girls, who are often tasked with domestic chores, or forced into sexual slavery or forced marriage, would fall outside these protections. To the extent that this is correct, it should be recalled that the disadvantage of classifying an individual as an active participant in hostilities is that that individual becomes a legitimate target of attack. It is, then, to give with one hand but to take with the other. As the RUF Trial Chamber put it, an overly expansive definition of active participation in hostilities would be inappropriate as its consequence would be that children associated with armed groups lose their protected status as persons hors de combat under the law of armed conflict. 65 A final word of caution is warranted on the law in this area. There is a very real danger that the international criminal law standard becomes the standard of international humanitarian law. This would be unfortunate as, for once, Additional Protocol II contains greater protection. Article 4(3)(c) of Additional Protocol II provides that children who have not attained the age of fifteen years shall neither be recruited in the armed forces or groups nor allowed to take part in hostilities. 66 The provision does not prohibit solely direct or active participation. It also extends to indirect participation and would cover the grey area mentioned above. Accordingly, statements such as the law as it is worded, allows for the participation of children under 15 years of age in activities that do not amount to an active participation in hostilities, 67 albeit said in the context of Article 4(c) of the Statute of the Special Court, should be read with some care. The conduct remains prohibited; it (arguably) simply is not criminalized. It is true that the law of international armed conflict provides for a weaker standard, referring as it does to taking all feasible measures and limiting itself to a prohibition on taking a direct part in hostilities. 68 It is also 63 Ibid. 64 See the concern expressed in: Written Submissions of the United Nations Special Representative of the Secretary-General on Children and Armed Conflict, Thomas Lubanga Dyilo (ICC-01/ 04-01/ AnxA), 18 March RUF Trial Judgment, supra note 1, at x Art. 4(3)(c), Additional Protocol II (emphases added). 67 CDF Trial Judgment, Separate and Partially Dissenting Opinion of Justice Itoe, supra note 52, at x See Art. 77(2), Additional Protocol I.

12 1020 JICJ 8 (2010), 1009^1034 true that states, in formulating international criminal law and international human rights law, have opted to follow the law of international armed conflict. 69 However, it remains the case that the international humanitarian law of non-international armed conflict contains this more rigorous standard. 3. Collective Punishments The prohibition on collective punishments has a long and distinguished history. First codified in the Hague Regulations, it has since featured in many of the major international humanitarian law instruments. 70 The prohibition rests on the premise of individual responsibility, the idea that responsibility is personal in nature and that no one may be punished for an act he or she has not personally committed. 71 The prohibition is a broad one, covering not only penalties imposed in the normal judicial process, but also any other kind of sanction (such as confiscation of property). 72 Indeed, the Additional Protocol II prohibition was re-located from its original position in the provision on penal prosecutions to the provision on fundamental guarantees, precisely so as not to limit the application of the principle to the penal context. 73 The concern also explains the change in terminology from collective penalties to collective punishments. 74 Although of broad application and steeped in history, there is a paucity of jurisprudence on point. There is mention of the practice in the judgments of the International Military Tribunal at Nuremberg and the various 69 Art. 8(2)(e)(vii) ICCSt.; Art. 38(2), Convention on the Rights of the Child. For its part, the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflicts refers to direct part in hostilities in the context of states parties and use in hostilities in respect of non-state armed groups. See Arts 1 and 4, respectively. Art. 3(a), ILO Convention concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour (C182) (1999) refers, more broadly, to use. 70 Art. 50, Convention (II) with Respect to the Laws and Customs of War on Land and its Annex: Regulations concerning the Laws and Customs of War on Land, The Hague, 29 July 1899; Art. 50, Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land, The Hague, 18 October 1907; Arts 11 and 46, Geneva Convention relative to the Treatment of Prisoners of War (1929); Arts 26 and 87, Geneva Convention Relative to the Treatment of Prisoners of War of August 12, 1949; Art. 33, Geneva Convention Relative to the Protection of Civilian Persons in Time of War of August 12, 1949; Art. 75(2)(d), Additional Protocol I; Art. 4(2)(b), Additional Protocol II. On the history of collective punishments, see generally S. Darcy, Collective Responsibility and Accountability under International Law (Leiden: Transnational, 2007), at Chapter AFRC Trial Judgment, supra note 9, at x 678. See also CDF Trial Judgment, supra note 13, at x 178, note ICRC Commentary on the Additional Protocols, supra note 15, at See, respectively, Official Records of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts (Geneva: ICRC, 1974^1977) Vol. X, at 130 and Vol. VII, 87^ See ibid.,vol.vii,87^88.

13 War Crimes before the Special Court for Sierra Leone 1021 post-world War II trials, 75 though little discussion is to be found therein. Collective punishments have neither been prosecuted at the ICTY nor at the ICTR, even though the prohibition does appear expressly in the Statute of the latter. 76 As the offence does not appear in the Rome Statute, its Elements of Crimes are of no assistance. 77 Thus, the two traditional starting points for consideration ç the jurisprudence of the ad hoc Tribunals and the Elements of Crimes ç are of no help. Nowhere is there greater silence than on the definition of collective punishments. Four competing definitions have been offered by the various chambers of the Special Court. The AFRC Trial Chamber laid down the elements of collective punishments as: (1) A punishment imposed indiscriminately and collectively upon persons for acts that they have not committed; and, (2) The intent on the part of the perpetrator to indiscriminately and collectively punish the person for acts which form the subject of the punishment. 78 Delivering its judgment some six weeks after the AFRC trial judgment, the CDF Trial Chamber held that the constitutive elements of the crime are: (1) A punishment imposed collectively upon persons for omissions or acts that they have not committed; and, (2) The Accused intended to punish collectively persons for these omissions or acts or acted in the reasonable knowledge that this would likely occur. 79 On appeal, the CDF Appeals Chamber considered the elements to be: (1) The indiscriminate punishment imposed collectively on persons for omissions or acts for which some or none of them may or may not have been responsible; and, (2) The specific intent of the perpetrator to punish collectively. 80 Justice Winter, however, departed from this, preferring to define the elements as: (1) An indiscriminate sanction directed against protected persons for their perceived conduct; and, (2) The specific intent to punish persons or groups of persons collectively for their perceived conduct. 81 Of course, only one definition comes with the seal of the Appeals Chamber. However, even that came up for consideration in the context of cumulative convictions and it may be that the matter was not argued fully before the Appeals 75 See generally Darcy, supra note 70, 34^ Art. 4(2) ICTRSt. 77 As to why the offence is not present in the ICCSt., see S. Darcy, Prosecuting the War Crime of Collective Punishment: Is it Time to Amend the Rome Statute? 8 JICJ (2010) 29, at AFRC Trial Judgment, supra note 9, at x CDF Trial Judgment, supra note 13, at x CDF Appeal Judgment, supra note 5, at x CDF Appeal Judgment, Partially Dissenting Opinion of Justice Winter, supra note 5, at x 46.

14 1022 JICJ 8 (2010), 1009^1034 Chamber, leaving room for re-interpretation should the occasion arise, for the definition of the Appeals Chamber does pose some difficulties. First, there is a move from collective punishment for underlying acts that persons have not committed, to use the words of the Trial Chambers, to collective punishment for underlying acts for which persons are not responsible, in the language of the Appeals Chamber. The definition of the Appeals Chamber moves away from the language of the Geneva Conventions, with Article 33 of the Fourth Geneva Convention speaking of personal commission, and back to the language of the 1907 Hague Regulations, of which Article 50 refers to joint and several responsibility. The move from Geneva to The Hague is not in itself problematic. However, the notion of responsibility in Article 50 of the Hague Regulations includes ideas of passive responsibility on the part of the community at large. Thus, for example, where the community at large has knowledge of the original, underlying actions being carried out and fails to do anything to try and stop them, the passive responsibility on the part of the community for those acts takes the community outside the protections afforded by Article This stands in contrast to the Fourth Geneva Convention, under which the community at large would be protected, given that it did not commit the underlying actions. It is highly unlikely that the Appeals Chamber intended to remove the protection afforded to the community by the prohibition on collective punishment, even if the community could be considered passively responsible for the original, underlying actions. Thus, even if the language of responsibility were to be used, from a protection perspective, it should not be interpreted in the manner originally intended. Second is the change from acts that individuals have not committed to acts that some or none of them may or may not have committed. In one respect, this is a considerable improvement from the definitions of the Trial Chambers, for their definitions would not cover those persons who did, in fact, commit the underlying act that attracts punishment, even if others who did not so commit were punished simultaneously. 83 To take an example pertinent to the Sierra Leonean conflict, if inhabitants of a village were punished for voting for one side, then the Prosecutor ç according to the Trial Chambers definitions ç would have to establish that certain inhabitants did not in fact vote for that side and would have to identify such persons in order that they would benefit from the protection afforded by the prohibition on collective punishments. The Trial Chambers based their language on Article 33(1) of the Fourth Geneva Convention, which provides that No protected person may be punished for an offence he or she has not personally committed. Collective penalties and likewise all measures of intimidation or of terrorism are 82 See e.g. International Committee of the Red Cross, Commentary: IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Geneva:ICRC,1958),at225;Darcy,supra note 70, 16^ Although the AFRC Trial Chamber does, at one point, refer to punishments being imposed on persons for acts which they may or may not have committed : see supra note 9, at x 680.

15 War Crimes before the Special Court for Sierra Leone 1023 prohibited. However, the two sentences set out slightly different points. The first, with its reference to personal commission, goes to the principle of individual responsibility; the second relates more specifically to the prohibition of collective punishments. The language of the Trial Chambers conflates the two, admittedly related, issues. 84 The different approaches of the various chambers may be explained by the uncertainty surrounding the exact focus of the prohibition on collective punishments and precisely what it seeks to prevent. The various definitions suggest that there are two principal aspects to the offence: (i) the nature of the punishment, whether collective rather than individual, and targeted or indiscriminate; and (ii) the identity of the victim, whether they did or did not commit the act in question, whether they were perceived as committing the act in question or whether there was a failure to identify the responsible individual. To date, the various chambers have differed on whether to stress the nature of the punishment ç and if so, whether to focus on its indiscriminate, 85 or collective 86 character ç or whether to focus on the identity of the victim ç and if so, whether to concentrate on the lack of identification on the part of the perpetrator, 87 or precisely what the victim has, 88 or is perceived to have, 89 done. Sometimes, the same chamber will stress different elements at different moments. For example, the relevant part of the definition adopted by the AFRC Trial Chamber references [a] punishment imposed indiscriminately and collectively upon persons for acts that they have not committed, 90 seemingly focused, in part, on acts not actually committed by the persons in question. Yet, in its reasoning, the AFRC Trial Chamber notes that, [i]n other words, the punishments are imposed indiscriminately without establishing individual responsibility through some semblance of due process and without any real attempt to identify the perpetrators, if any. 91 Here, the focus would seem to be, in part, on the failure to attempt to identify the persons in question. Despite these criticisms, the jurisprudence of the Special Court has identified the salient aspects of the crime of collective punishment and has given us a useful basis from which to work. However, it remains necessary to identify precisely what it is that the prohibition seeks to address. Only then will we be able to come up with a more precise definition of the crime of collective punishments. 84 As does, it should be noted, the ICRC Commentary to Geneva Convention IVon Art. 33. See, supra note 82, at AFRC Trial Judgment, supra note 9, at x 676; CDF Appeal Judgment, supra note 5, at x 224; CDF Appeal Judgment, Partially Dissenting Opinion of Justice Winter, supra note 5, at x AFRC Trial Judgment, supra note 9, at x 676; CDF Trial Judgment, supra note 12, at x 180; CDF Appeal Judgment, supra note 5, at x AFRC Trial Judgment, ibid., at x Ibid., atx 676 (have not); CDF Trial Judgment, supra note 13, at x 180 (have not); CDF Appeal Judgment, supra note 5, at x 224 (some or none of them may or may not have; responsibility rather than commission). 89 CDF Appeal Judgment, Partially Dissenting Opinion of Justice Winter, supra note 5, at x 46; RUF Trial Judgment, supra note 1, at x AFRC Trial Judgment, supra note 9, at x Ibid., atx 680.

16 1024 JICJ 8 (2010), 1009^1034 To this author, collective punishments are those punishments that are imposed on a group of persons for actions of particular individuals. Thus, the focus of the offence should be on the punishment rather than on the individual victim, although the identityof the victim certainlyhas a role to play, and onthe collective, rather than indiscriminate, nature of the punishment. 4. Attacks against Peacekeepers The Statute of the Special Court provides that the Court shall have the power to prosecute: Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict. 92 The RUF case marked the first prosecution of the offence of attacks against peacekeepers. However, as the Trial Chamber held, the prohibition does not represent a new crime. Instead ::: this offence can be seen as a particularization of the general and fundamental prohibition in international humanitarian law against attacks on civilians and civilian objects. 93 Nevertheless, an important and under-emphasized aspect of the prohibition is the explicit protection afforded to a certain category of civilian objects in non-international armed conflicts. As with the Rome Statute, the Statute of the Special Court expressly criminalizes attacks on civilians but not on civilian objects in non-international armed conflicts. The protection afforded to installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission is thus one of the few international criminal law prohibitions in respect of civilian objects in non-international armed conflict. 94 Despite, or perhaps because of, this relatively novel treaty protection, attacks on the property of the United Nations Mission in Sierra Leone (UNAMSIL) were not charged despite the attacks against UNAMSIL camps. 95 Three aspects of the offence have been analysed in quite some detail by the RUF Trial Chamber and are worth exploring. First, on the issue of the attack, the Trial Chamber held that [t]here exists no requirement that there be actual damage to the personnel or objects as a result of the attack and that the mere attack is the gravamen of the crime. 96 The Trial Chamber also found the definition of an attack to be the same in international armed conflict 92 Art. 4(b) SCSLSt. 93 RUF Trial Judgment, supra note 1, at x 215. See also at x See also Art. 8(2)(e)(ii) and (iv) ICCSt. 95 On the lack of charges in this regard, see Sesay, Kallon and Gbao, Corrected Amended Consolidated Indictment, x 83; RUF Trial Judgment, supra note 1, at x 213. On the attacks, see RUF Trial Judgment, at xx 1823^ RUF Trial Judgment, supra note 1, at x 220.