15 March 2004

SUMMARY OF DECISION ON PRELIMINARY MOTION BASED ON LACK
OF JURISDICTION/ ABUSE OF PROCESS: AMNESTY PROVIDED BY
THE LOMÉ ACCORD

Prosecutor against Morris Kallon, Brima Bazzy Kamara
(Case No.SCSL-2004-15-PT, Case No.SCSL-2004-16-PT)

The Appeals Chamber of the Special Court delivered its decision on 13 March that the amnesty granted under Article IX of the Lomé Peace Agreement does not bar the prosecution of an accused for international crimes committed before July 1999 before the Special Court.

The Defence for Morris Kallon and Brima Bazzy Kamara had filed preliminary motions arguing that the Government of Sierra Leone was bound to observe the amnesty by this Agreement between the Government of Sierra Leone and the RUF. They submitted that the Special Court should not assert jurisdiction over crimes committed prior to July 1999 when the amnesty was granted and it would be an abuse of process to allow the prosecution of any of the alleged crimes pre-dating the Lomé Agreement. During hearings in November 2003, fellow accused Moinina Fofana and Augustine Gbao intervened in support of the motions.

The Prosecution argued that the Special Court is bound by Article 10 of its Statute (which states that amnesty shall not be a bar to prosecution in respect of international crimes) and that the Lomé Agreement, being an agreement between two national bodies, is not an international treaty and is limited in effect to domestic law. The Prosecution also submitted that under international law a government cannot grant amnesty for serious violations of international crimes. The Special Court also took into account submissions made on behalf of two non-government organisations, the Redress Trust and the Lawyers' Committee for Human Rights, as well as inviting submissions from a professor of international law.

The Appeals Chamber found that the Lomé Agreement created rights and obligations that are to be regulated by the domestic laws of Sierra Leone. Consequently, whether it is binding on the Government of Sierra Leone or not does not affect the prosecution of an accused in an international tribunal for international crimes.

The Appeals Chamber further found that Article 10 of the Court's Statute is valid, as it is an express statutory limitation on the discretion of the Court to decline jurisdiction on the sole ground that an amnesty has been granted to a defendant. Where there is such an express provision of a statute, a tribunal would be acting unlawfully if it circumvents this provision. Moreover, the Appeals Chamber concluded that an international tribunal, such as the Special Court, cannot be deprived of its jurisdiction to prosecute an offender by the grant of amnesty.

For these reasons, the preliminary motions were dismissed.