Chapter 15: Internationalised Domestic Criminal Tribunals
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primacy over other national courts and public authorities of third countries, whether
this involves requests for surrender of evidence or of accused persons. In examining
measures to enhance the deterrent powers of the court, the Secretary General invited
the Security Council to consider endowing it with Chapter VII powers for the specific
purpose of requesting the surrender of an accused from outside the jurisdiction of
the court.
9
The Security Council never responded to that request. The Agreement
and the Statute should be read together as a single instrument, rather than two
separate ones, in light of the fact that there is considerable overlap between them.
10
Under Art 8 of its Statute, the court has concurrent jurisdiction with Sierra Leone
courts but enjoys primacy over them. The Special Court is to be composed of two
Trial Chambers, each consisting of three judges, and an Appeals Chamber consisting
of five judges. Sierra Leone is to appoint one of the three trial judges in each chamber,
as well as two of the judges that will serve in theAppeals Chamber, with the remaining
judicial vacancies to be filled by the UN.
11
Similarly, the Secretary General is to appoint
the court’s Registrar
12
and prosecutor, who shall be assisted by a Sierra Leonian
deputy Prosecutor.
13
In accordance with Art 2 of the 2002 Agreement, from the three
judges serving in the Trial Chamber, one shall be appointed by Sierra Leone, whereas
the remaining two by the Secretary General, upon nominations forwarded by
Member States of the Economic Community of West African States (ECOWAS) and
the Commonwealth. Under Art 3 of the 2002 Agreement, the Prosecutor shall be
appointed on the basis of a consultation between the Government of Sierra Leone
and the Secretary General.
The subject matter jurisdiction of the Special Court comprises crimes under
international humanitarian law and Sierra Leonian law. The first category includes
crimes against humanity,
14
violations of common Art 3 to the Geneva Conventions
and of Additional Protocol II,
15
as well as ‘other violations of international
humanitarian law’.
16
Article 4 includes the intentional targeting of civilians,
hors de
combat
and personnel along with material of peace-keeping missions, as well as
abduction and forced recruitment of children under the age of 15 for the purpose of
using them to participate actively in hostilities. The Secretary General points out in
his report on Art 4 that, although the prohibition on child recruitment has acquired
customary international law status,
17
it is not clear to what extent it is recognised as
a war crime entailing individual criminal responsibility, despite its classification as
a war crime in the 1998 ICC Statute.
18
Despite the Secretary General’s comment that
9
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