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The SCSL and the question of subpoenas against state officials
The Trial Chamber of the SCSL has had also an opportunity to deal with the question of immunity of state officials in the case involving Charles Taylor. While it is undisputed fact that Charles Taylor is being prosecuted by the Special Court for Sierra Leone, it is also important to note that the Trial Chamber of the SCSL has inconsistently held that the then sitting president of the Republic of Sierra Leone, Dr. Ahmad Tejan-Kabbah was immune from being summoned as a witness, citing among others, an immunity of the serving president and that as a sitting head of state he could not be compelled to appear before the Special Court.163 The contrary is proven and stated by the same Trial Chamber of the SCSL as we shall find out shortly in a different case decided in 2008.
The first subpoena decision of 2006 calls for a deeper analysis. The two accused persons, Moinina Fofana and Samuel Hinga Norman had applied for the issuance of a subpoena ad testificandum against the then sitting president of Sierra Leone, Ahmad Tejan Kabbah. They wanted him to appear and testify on their behalf before the Trial Chamber of the SCSL. They believed that President Kabbah had refused to heed to their repeated requests for him to appear and testify on their behalf. Norman and Fofana, who had filed joint submissions for the subpoenas on 15 December 2005, contended that as their Civil Defence Forces (CDF) leader, and that since they had been indicted for crimes committed in the course of fighting against the rebel groups of RUF/AFRC to restore the democratically elected government of Tejan Kabbah, which had been removed from power by the rebel forces, President Tejan Kabbah knew that they did not bear the greatest responsibility for such crimes. They further argued that President Kabbah was commanding and materially supporting and communicating with the leadership of the CDF which they had been heading. On the basis of his communication, command and support to them, President Tejan Kabbah also bore the greatest responsible for the crimes that Norman and Fofana were charged with, contending that the President was responsible both politically and militarily.
Further, Norman and Fofana contended that President Kabbah had issued commands, communications and materially supported them ‘both during his exile in Conakry [in Guinea] and from his presidential palace in Freetown.’ As such, they submitted that President Kabbah ‘may himself have been among a group or, at the very least, that he was in a position to give evidence regarding the relative culpability of the three accused persons.
Cases before the International Criminal Court as at 2011
As of early 2011, all the six situations and several accused persons before the ICC2 have come from Africa.3 The cases before the ICC are based on the state referrals,4 referrals by the United Nations Security Council5 and proprio motu powers of the Prosecutor to initiate investigations.6 Based on reasonable belief that individuals have committed international crimes in Uganda, DRC, Central African Republic, Kenya and Darfur, Sudan, the Prosecutor of the ICC requested the Pre-Trial Chamber of the ICC to issue arrest warrants for various individuals.
Regarding the Situation in Uganda8 which was referred by the Government of Uganda to the Prosecutor of the ICC in December 2003, five warrants of arrest have been issued against five top leaders of the Lord’s Resistance Army (LRA), a rebel force which operates in northern Uganda. The case is being heard by Pre-Trial Chamber II of the ICC.
The rebel leaders that have been indicted are Joseph Kony, Vicent Otti (believed to have died), Okot Odhiambo, Dominic Ongwen and Raska Lukwiya. All these rebel leaders are accused of crimes against humanity and war crimes.9 In the Situation in the Democratic Republic of Congo, which was referred by the Government of the DRC in 2002, four cases are being heard by different chambers of the ICC. Three of those cases are still in the Pre-Trial stage while the case against Thomas Lubanga Dyilo is at the trial stage. In all these cases, the accused persons are charged with committing crimes against humanity and war crimes in the DRC.10 In the Situation in the Central African Republic, which was referred by the Government of the Central African Republic in 2003, there is one person charged with war crimes and crimes against humanity. That person is Jean-Pierre Bemba Gombo, former Vice-President and Senator of the DRC, and president of the Movement for the Liberation of Congo (Mouvement pour la Libération du Congo ‘MLC’) rebel forces which fought not only in the DRC, but also in the Central African Republic between 2002 and 2003. The case against Mr Bemba is currently being heard by Pre-Trial Chamber II of the ICC, and is at the pre-trial stage.
Chapter 1 Introduction
1.1 An overview
1.2 Background to the study
1.3 Research questions
1.4 Assumptions
1.5 Research methods
1.6 Existing studies
1.7 Objectives of the study
1.8 Significance of the study
1.9 Limitations and delimitations of the study
1.10 Conceptual clarifications
1.11 Chapter outline
Chapter 2 Developments of the law on immunity of state officials in international law
2.1 Introduction
2.2 Customary international law of immunity of state officials
2.3 Codification of immunity of state officials
2.4 Does immunity prevail over international law jus cogens on the punishment of international crimes
2.5 Conclusion
Chapter 3 Jurisprudence of international courts on immunity of state officials
3.1 Introduction
3.2 State officials do not enjoy immunity from prosecution before international courts
3.3 Subpoenas against state officials before international courts –An unsettled field
3.4 Conclusion
Chapter 4 The African Union, prosecution of international crimes and the question of immunity of state officials
4.1 Introduction
4.2 Cases before the International Criminal Court as at 2011
4.3 The African Union and legal framework on prosecution of international crimes in Africa
4.4 The African Union concerns over prosecution of serving African state officials by the International Criminal Court
4.5 The African Union trend: A critique
4.6 Conclusion
Chapter 5 Immunity and prosecution of state officials for international crimes in selected African jurisdictions
5.1 Introduction
5.2 The practice at African national level: A general observation
5.3 Selected African national jurisdictions
5.4 Conclusion
Chapter 6 Conclusion and recommendations
6.1 Introduction
6.2 Findings
6.3 Recommendations
Bibliography
