PRESS BRIEFING BY ASSISTANT SECRETARY-GENERAL FOR LEGAL AFFAIRS

Press Briefing

PRESS BRIEFING BY ASSISTANT SECRETARY-GENERAL FOR LEGAL AFFAIRS

Agreement had been reached with the Government of Sierra Leone over the legal and practical arrangements necessary to establish a special court in that country to prosecute certain individuals there for war crimes and crimes against humanity, Ralph Zacklin, Assistant Secretary-General for Legal Affairs, told correspondents at a Headquarters press briefing on Tuesday, 26 September.

The arrangements, along with various options for financing, are set out in detail in a two-part report from the Secretary-General. The first part of the report deals with legal issues, the second with practical implementation issues.

[Reporters were asked to embargo the information they received during Mr. Zacklin’s briefing until the report had been released to the Council. As Mr. Zacklin was expected to be out of town in the latter part of the week, his briefing was scheduled in advance of his trip.]

Mr. Zacklin, who led a team of United Nations officials to Sierra Leone last week to work out the remaining details, said the Court, similar to the two international criminal tribunals, would have jurisdiction over war crimes, crimes against humanity and violations of the common article 3 of the Geneva Conventions.

The report proposed that temporal jurisdiction range back to November 1996, to the date of the signing of the Abidjan agreement -- the first attempt at a peace settlement to the conflict in Sierra Leone, he said. The report concluded that it was not correct to limit jurisdiction to the period following the Lomé Peace Agreement and that the Court should have a broader scope.

In response to a question as to how that provision could be reconciled with the amnesty granted under the Lomé Agreement, Mr. Zacklin said that the amnesty given by the Sierra Leone Government was for crimes under Sierra Leone law -- international crimes were a different matter. “There is no amnesty for international crimes. They could only grant amnesty for their own domestic legislation”, he said, adding that, as long as the crimes being prosecuted fell under international crimes, there was no difficulty for the Government of Sierra Leone.

He also pointed out that during the signing of the Lomé Agreement, the Special Representative of the Secretary-General, who had signed as a witness or “moral guarantor”, had been instructed by the Secretary-General to enter a reservation on the amnesty provision.

In terms of personal jurisdiction, he said that although the Council had recommended to the Secretary-General that jurisdiction be formulated on the basis of “those who bear the greatest responsibility”, the report suggested the slightly different wording of “those most responsible”. It was felt that the former wording was too narrow to encompass all those who bore some degree of command and leadership responsibility and had committed crimes. The report, therefore, proposed that jurisdiction extend to those most responsible and cover those who had been in leadership positions whether political or military.

He said there had been a determination that the Council’s initial proposal of funding the Court through voluntary contributions was not viable unless there were long-term financial commitments from friendly governments. The Court would need a sustained commitment in order to operate, and the report outlined various considerations that had to be taken into account in determining a financial mechanism for the funding of the Court.

“It would be extremely unwelcome if a court were to be established only to find out, one or two years later, that the voluntary contributions to sustain it were not there. Expectations of the court in Sierra Leone are very high. If the United Nations goes forward with this, we have to know we can finish the work we start”, he said.

One of the most difficult aspects in determining the parameters for personal jurisdiction had been deciding how to deal with child combatants, he said. He noted that there was no international standard for the minimum age required for prosecution. After seeking much advice on the matter and consulting broadly, there was tentative agreement that children between the ages of 15 to 18 should be subject to jurisdiction, but with many safeguards. For example, children’s trials would have to be separated from those of adults, and a special juvenile chamber would have to be established. Also, the identity of the children would have to be protected, and they would have access to psychological counselling. There would also be no question of their being subject to imprisonment. They would, instead, be referred to rehabilitation, demobilization or foster care.

It had been a highly emotional issue that had presented both a moral and legal dilemma, he said. One of the particular characteristics of the war in Sierra Leone had been the role of child combatants. Thousands of children in Sierra Leone had been abducted, drugged, placed under duress and abused and had perpetrated some of the most serious crimes in Sierra Leone, such as summary executions and amputations.

Mr. Zacklin said there was a need to view the special court as part of an integrated whole -- a part of everything the United Nations was doing in Sierra Leone. Therefore, certain proposals had been made regarding the support and assistance that could be provided by the United Nations Mission in Sierra Leone (UNAMSIL). A strong UNAMSIL would mean that the court would have a better chance of succeeding.

Asked if UNAMSIL would be authorized to arrest accused persons and what was to prevent the accused from escaping prosecution by fleeing the country, Mr. Zacklin said the issue of UNAMSIL’s mandate had been raised in the report. While there were a number of suspected criminals in detention, there would be a problem arresting others if there were no enforcement powers in place. He added that if UNAMSIL’s mandate fell under Chapter VII of the United Nations Charter, there would then be a legal obligation on third States to cooperate.

Asked what kind of time frame was likely for the establishment of the Court, Mr. Zacklin said one of the challenges for those responsible for implementing it would be that it would have to be done quickly. “If we were to do this special court in the way that we have done the [tribunals in The] Hague and Arusha, the time line would be too long. We cannot afford to do that. We have to move quickly”, he added.

A correspondent said there had been a question of regional peacekeepers being involved in crimes. Where would they fall in terms of the jurisdiction of the Court? Could they be brought up on charges?

Mr. Zacklin said the Security Council, in its resolution 1315 (2000), had recommended that the court have personal jurisdiction over persons who bore the greatest responsibility for the commission of the crimes, including those leaders who, in committing such crimes, had threatened the establishment and implementation of the peace process in Sierra Leone. Other than the change in wording to “those most responsible”, personal jurisdiction remained as recommended in the resolution. It was unstated in the report whether that would include persons who might have perpetrated crimes as part of peacekeeping missions.

“At the end of the day, it will be for the Prosecutor to determine whether a particular individual meets the jurisdictional requirements that have been set out. I can only refer you to paragraph 3 of the resolution to draw your own conclusions as to whether it includes the persons you referred to”, he said.

The Court would consist of two Trial Chambers and an Appeals Chamber, he said. The Trial Chambers would each have three judges, two international and one national of Sierra Leone. The Appeals Chamber would have five judges, three international and two national. The Prosecutor and the Registrar would be international, chosen by the Secretary-General; the Deputy Prosecutor would be chosen by Sierra Leone and could be either national or international, at its option. The Court would have much more of an international focus than the one for Cambodia.

There was no death penalty, and prison terms would be served out in Sierra Leone or, possibly, in a third country should there be offers, he continued. The seat of the Court would be in Sierra Leone, but criteria had been identified for the choice of an alternative host State should the need arise.

The United Nations had had two rounds of discussions with government officials from Sierra Leone: the first in New York from 12 to 14 September, when the Attorney General of Sierra Leone had come to discuss the basic legal instruments of the Court, such as the Court’s statute and the agreement between the United Nations and Sierra Leone that would lead to the establishment of the Court; and, last week’s visit to Sierra Leone by United Nations officials to discuss the practical arrangements.

* *** *