The International Nature of the Special Court

The defence linked the core question of immunity to the nature of the Special Court and to its lacking the powers provided for in Chapter VII of the UN Charter.⁷⁴⁰

The Applicant’s defence counsel submitted that “exceptions from diplomatic immunities can only derive from other rules of international law such as Security Council resolutions under Chapter VII of the UN Charter. The Special Court does

738Ibid

739In the Application, Liberia also requests the Court to indicate provisional measures.However, no action will be taken in the proceedings (in particular on the request for provisional measures) unless and until Sierra Leone consents to the Court’s jurisdiction in the case. In: Ibid

740Submission of the parties, § 6-16, In: Frulli Micaela, The Question of Charles Taylor’s Immunity, 2 JICJ 2004, p.1119, [hereinafter, Frulli, Taylor’s Immunity]

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not have Chapter VII powers, therefore judicial orders from the Special Court have the quality of judicial orders from a national court”.⁷⁴¹ By relying upon these grounds and pursuant to absolute immunity that is recognized by the ICJ in the arrest warrant case, he concluded that the indictment against him was invalid and its circulation to Ghana caused prejudice to his functions as Head of State.

The Prosecution argues that customary international law permits international criminal tribunals to indict acting Heads of State⁷⁴². The Special Court is an international court of the type of referred to in the Yerodia case.⁷⁴³

Professor Sands as amicus curiae concludes that in respect of international courts, international practice and academic commentary supports the view that jurisdiction may be exercised over a serving Head of State in respect of international crimes⁷⁴⁴. Sand emphasizes that:

In respect of Chapter VII the Special Court is in no different position from the ICC. Yet all three tribunals -the ICTY, the ICTR, and the ICC- were envisaged by the ICJ in the Yerodia case to have jurisdiction over a serving head of state…This confirms that the possession of Chapter VII powers cannot be essential for the question of immunity.⁷⁴⁵

Professor Orentlicher as amicus curiae pointed out that the authority of the Security Council to act on behalf of UN Member States is not confined to actions taken under Chapter VII of the UN Charter. The Security Council, she argued, has

741Defence Counsel: Terence Terry, Defence Preliminary Motion, In: Decision 31 May 2004, §6

742Prosecution Response, In: Ibid, §9

743Prosecution Post-Hearing Reply, In: Ibid, §16

744Particular reference may be had to the Pinochet cases and the Yerodia case, in; Submissions of the Amici Curiae, (i) Professor Philippe Sands, In: Ibid, §17

745Alebeek, op-cit, p.288 (In the final part of §61 of the Arrest Warrant judgment, the ICJ stated that ‘an incumbent or former Minister for Foreign Affairs may be subject to criminal proceedings before certain international criminal courts’ where they have jurisdiction. Examples include the ICTY, and the ICTR, established pursuant to Security Council resolutions under Chapter VII of the United Nations Charter, and the future International Criminal Court created by the 1998 Rome Convention. The Latter’s Statute expressly provides, in Article 27, paragraph2)

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acted ‘on behalf of all Members of the UN’ when it requested the Secretary-General to negotiate the Agreement.⁷⁴⁶

‘For the purposes of the distinction between prosecutions before national and international criminal courts recognized by the ICJ and other authorities, the Special Court is an international court and may exercise jurisdiction over incumbent and former Heads of State in accordance with its Statute’.⁷⁴⁷

The Appeal judges relied upon articles 39 and 41 of the UN Charter for attempting to argue that the Special Court is an international criminal court, and lack of the so-called Chapter VII powers does not constitute a major inconvenience⁷⁴⁸ for the Special Court. They reasoned ‘The SC determined the existence of a threat to the peace under article 39 and, as a following step, decided under article 41 to conclude an agreement to establish the Special Court’.⁷⁴⁹

Interestingly, the Appeals Chamber reasoned that if articles 39 and 41 of the Charter of the UN were broad enough to allow the establishment of the ICTY and ICTR, they are also ‘wide enough to empower the Security Council to initiate, as it did by resolution1315, the establishment of the Special Court by Agreement with Sierra Leone’.⁷⁵⁰

The judges continued: “It is to be observed that in carrying out its duties under its responsibility for the maintenance of international peace and security, the Security Council acts on behalf of the members of the UN. The Agreement between the UN and Sierra Leone is thus an agreement between all members of the UN and Sierra Leone. This fact makes the Agreement an

746Alebeek, Ibid, p.287

747Submission of the amici curiae, (ii) Professor Diane Orentlicher, In: Decision 31 May 2004, op-cit,§18

748The judges expressed that ‘A proper understanding of those powers shows that the absence of the so-called Chapter VII powers does not by itself define the legal status of the Special Court’. In: Decision 31 May 2004, op-cit, §38

749Frulli, Taylor’s Immunity, op-cit, p.1121

750Taylor (SCSL-0301-I), Decision 31 May 2004, §37, In: Schabas, The UN International Criminal Tribunals, op-cit, p.60

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expression of the will of the international community. The Special Court established in such circumstances is truly international”.⁷⁵¹

“By reaffirming in the preamble to Resolution 1315 ‘that persons who commit or authorize serious violations of international humanitarian law are individually responsible and accountable for those violations and that the international community will exert every effort to bring those responsible to justice in accordance with international standards of justice, fairness and due process of law’ it has been made clear that the Special Court was established to fulfil an international mandate and is part of the machinery of international justice”.⁷⁵²

After referring to the reasons reached by Professor Sands as amicus curiae about the Characteristics of the Special Court⁷⁵³, the Appeal judges expressed that ‘We come to the conclusion that the Special Court is an international criminal court’.⁷⁵⁴