Big B asked a good question that might be worth posting separately as it refers to the structure of the Special Court, the composition of its judges and staff, and its legitimacy.
Big B asked:
“This court is what it is. It is the Special Court of Sierra Leone, not the United Nations Criminal Court. Most African courts are kangaroo courts. The accused is guilty until he/she can prove his innocent.
This is the Special Court of Sierra Leone, why is it the prosecution lawyers and judges are not from Sierra Leone. The prosecution lawyers most of them are from the United States. Whereas, the judges are from countries that have close ties with the US or the US have direct influence over?
Tracey, what are the legal ramifications allowing non citizens to represent a country as lawyers and judges to administer justice without the United Nations approval or consent? And, if the United Nations consented shouldn’t the trial be a United Nations trial rather than a Sierra Leone trial?”
In short, the Special Court for Sierra Leone was created by an agreement between the UN and the Government of Sierra Leone. That agreement sets out the terms for the selection of judges, the lead prosecutor and other staff – you can see it here: http://www.sc-sl.org/LinkClick.aspx?fileticket=CLk1rMQtCHg%3d&tabid=176. Article 2(2) sets out how the judges should be chosen. So for example, under Article 2(2)(a), the agreement says that a trial chamber will be made up of three judges “where one shall be appointed by the Government of Sierra Leone and two judges appointed by the Secretary-General, upon nominations forwarded by States, and in particular the member States of the Economic Community of West African States and the Commonwealth, at the invitation of the Secretary-General.” Article 2(c) has a similar provision for the Appeals Chamber – two judges shall be appointed by the Government of Sierra Leone, while three are appointed by the UN Secretary-General under the same nomination process. Article 2(3) requires the Government of Sierra Leone and the Secretary-General to consult with each other on the appointment of judges. In the case of the trial chamber that is currently presiding over Mr. Taylor’s case, the Government of Sierra Leone appointed Justice Richard Lussick of Samoa; while the UN Secretary General appointed Justice Theresa Doherty of Northern Ireland, and Justice Julia Sebutinde of Uganda. You can find out more about the judges here: http://www.sc-sl.org/ABOUT/CourtOrganization/Chambers/TrialChamberII/tabid/89/Default.aspx.
So, Big B, while the US is one of the funders of the court, the actual process of selecting the judges is not determined by the US, but rather through this different process where the nominations of ECOWAS and Commonwealth countries are meant to have a special place, according to the Agreement.
And how about the chief prosecutor? Article 3 of the Agreement also deals with that. Article 3(1) says that “[t]he Secretary-General, after consultation with the Government of Sierra Leone, shall appoint a Prosecutor for a three-year term. The Prosecutor shall be eligible for reappointment.” Meanwhile, the Government of Sierra Leone, in consultation with the UN Secretary-General must “appoint a Sierra Leonean Deputy Prosecutor to assist the Prosecutor in the conduct of the investigations and prosecutions” under Article 3(2). The Deputy Prosecutor is a Sierra Leonean national and is now Acting Prosecutor since Mr. Rapp left to go work with the US State Department as its Ambassador-At-Large for War Crimes. You can find his profile here: http://www.sc-sl.org/ABOUT/CourtOrganization/Prosecution/tabid/90/Default.aspx. So again, even though there have been two chief prosecutors who have been from the US, the process for selecting them was not owned by the US.
As for the staff, Article 3(4) also deals with their appointment too. This article says “[t]he Prosecutor shall be assisted by such Sierra Leonean and international staff as may be required to perform the functions assigned to him or her effectively and efficiently.” The Prosecution team works with a combination of Sierra Leonean and international staff.
The other question you ask is about the status of the Special Court – basically, is it a Sierra Leonean court or is it a United Nations court? In reality it is a uniquely structured court that is neither fully international nor fully Sierra Leonean, but a combination of both – it is often called a “hybrid court” for this reason. It sits independently of the Sierra Leonean justice system and it combines Sierra Leonean and international staff, judges and laws. Another document – the Statute of the Special Court for Sierra Leone – sets out the legal and operational functioning of the court. The Statute says that the Special Court can operate in tandem with the Sierra Leonean courts to prosecute serious crimes (eg war crimes, crimes against humanity, other serious violations of international humanitarian law [such as the use of child soldiers, for example] – you can see Articles 2, 3 and 4, and for Sierra Leonean crimes, Article 5), but that it has “primacy” over national courts (see Article 8). That means, essentially, if the Sierra Leonean courts had ever prosecuted someone that the Special Court considered was within its mandate (specifically, if that person fell within the category assigned to the Special Court – those bearing the “greatest responsibility” for the crimes set out in the Statute that were committed in Sierra Leone after November 30, 1996 – see Article 1), then the Special Court could ask the Sierra Leonean courts to “defer its competence” (or basically allow the Special Court to prosecute the person instead). This never happened during the work of the Special Court. You can read the Statute here if you are interested: http://www.sc-sl.org/LinkClick.aspx?fileticket=uClnd1MJeEw%3d&tabid=176.
In that sense, the fact that non-citizens of Sierra Leone are working at the court is perfectly legal and done with the consent of both the Sierra Leonean government and the United Nations.
Hope this helps.
(I also realize I have a backlog of questions to answer – thanks, readers, for your patience.)