Aside
from the innovative balance between local and international justice,
another major difference between the Special Court and the previous
tribunals concerns its jurisdiction. The Court will set precedents
in the prosecution of both leaders and children.
The Security Council resolution specifically called for the prosecution
of people who "bear the greatest responsibility" for crimes
against humanity, war crimes, and other serious violations of international
humanitarian law. The statutes setting up the Yugoslav and Rwanda
tribunals did not include such language, and as a result, ICTY was
criticized for wasting valuable resources on prosecuting small fish.
According to Pierre Prosper, special advisor in the State Department’s
Office of War Crimes Issues, this phrasing is a "signal"
for the court to prosecute the "ringleaders" of war crimes
in Sierra Leone, leaving the rest to the country’s Truth and
Reconciliation Commission. "This development is important for
international justice," he says, "because it is impossible
for international courts to go after each and every perpetrator."
In addition to its approach to leaders, the Court will set precedent
in the prosecution of juveniles. Given the RUF’s tactic of drugging
and abducting children and forcing them to fight, a large number of
children committed atrocities in Sierra Leone. The Sierra Leone government
was adamant that those responsible be held accountable regardless
of their age, but UN officials involved in the drafting of the mandate
argued that persons under 18 should not face prosecution. In a compromise
in keeping with Protocol II, Article II, of the Geneva Conventions,
which states that belligerents not include persons under 15, the two
sides agreed that the Special Court would be permitted to try suspects
aged 15 and older. This provision marks the first time in international
legal proceedings that war crimes suspects under 18 will face prosecution.
These
restrictions on the court’s jurisdiction will mean that many
crimes will never be prosecuted, but rather will be addressed by a
proposed Truth and Reconciliation Commission. Sierra Leone’s
Parliament, after consultation with the UN High Commissioner for Human
Rights, passed legislation in February 2000 calling for its creation.
Indeed, after a recent visit to Sierra Leone, the Security Council
suggested that because the court might dissuade perpetrators from
disarming for fear of prosecution, the Truth and Reconciliation Commission
might provide a "better alternative" for some combatants,
particularly children.
Given
its mandate to prosecute those with the "greatest responsibility"
for war crimes, the court will have to decide whether to indict the
one man who continually instigates conflict and brutality in the region
– President Charles Taylor of Liberia. The ICTY indicted Slobodan
Milosevic while he was President of Yugoslavia and the message was
clear: even heads of state are not immune to war crimes prosecutions.
The international community is quickly losing patience with Taylor.
Holbrooke recently compared the two men, contending that: "Taylor
is Milosevic in Africa with diamonds." During a recent visit
to Monrovia, American officials threatened Taylor with a war crimes
indictment by the Special Court if he does not end his support of
the RUF.
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