PROSECUTOR v ALLIEU KONDEWA - DECISION ON PRELIMINARY MOTION ON LACK OF JURISDICTION: ESTABLISHMENT OF SPECIAL COURT VIOLATES CONSTITUTION OF SIERRA LEONE ( SCSL-2004-14-AR72(E) )  SCSL 107 (25 May 2004);
SEPARATE OPINION OF JUSTICE ROBERTSON:
- After a series of exchanges between the parties in respect to international law issues which were raised and then either abandoned or agreed to be irrelevant, we find a final expostulation by the applicant:
“What counts is the fact that the UN and Sierra Leone have created a new and independent international legal person that is beyond the control of the United Nations.”
Since that new and independent legal person is an international criminal court, the first and perhaps determinative question is whether there is anything at all wrong with it being beyond the control of the United Nations (“UN”). For all the legal learning that has gone into this Motion and its contest, this essential issue may be answered quite shortly.
- After the breakdown of the Abidjan and then the Lomé Peace Agreements, the Security Council determined that it was necessary to set up a Special Court and directed the Secretary-General by Resolution 1315 to report on how that resolve could be implemented. He did so, and the work of his office in concluding the Special Court Agreement and Statute in January 2002, and its work in implementing that Agreement has at all times been kept under review by the Security Council, which always retains the power to direct the Secretary-General’s actions since he is “the chief administrative officer of the organization”. The consequence has been the establishment of this Court, comprising judges who in their judicial work are independent of any organ of the UN or any one or anything else. Their Court functions by virtue of an administration which in non-judicial matters is controlled by a Management Committee on which sit representatives of the Secretary-General (namely the UN legal officers) together with representatives of interested state parties. Any recommendation by that committee to terminate the operation of the tribunal or to amend the terms of its statute would need the agreement of Sierra Leone, but that would (in reality) follow from any such decision by the Security Council itself.
- The applicant’s first proposition is that in exercising its powers to maintain international peace and security the Security Council may delegate to the Secretary-General, but must exercise effective continuing authority and control over the way in which the delegated powers are being exercised. No doubt that is true, in a general sense, but it does not follow (as the applicant contends) that as a matter of law the Security Council must retain unilateral power over any institution that it has authorized the Secretary-General to establish by agreement with another state. It may well be appropriate for the Security Council - a political body - to establish a judicial or arbitral institution over which it has no direct control, or which functions by agreements between the Council and other states or organizations. There is nothing in the UN Charter which precludes such arrangements, if they are genuinely conducive to the maintenance or restoration of peace and security.
- The applicant accepts that the Security Council had power to establish the International Criminal Tribunal for the former Yugoslavia (“ICTY”) and the International Criminal Tribunal for Rwanda (“ICTR”). As the ICTY Appeals Chamber pointed out in its decision on jurisdiction Tadic, the Security Council did not thereby delegate its own functions to the Court: it set up an independent judicial power in the course of carrying out its Charter duty to assist the restoration of the peace:
“Plainly the Security Council is not a judicial organ and it is not provided with judicial powers (though it may incidentally perform certain quasi-judicial activities such as effecting determinations or findings). The principal function of the Security Council is the maintenance of international peace and security, in the discharge of which the Security Council exercises both decision-making and executive powers.
...The establishment of the International Tribunal by the Security Council does not signify, however, that the Security Council has delegated to it some of its own functions or the exercise of some of its own powers. Nor does it mean, in reverse, that the Security Council was usurping for itself part of a judicial function which does not belong to it but to other organs of the United Nations according to the Charter. The Security Council has resorted to the establishment of a judicial organ in the form of an international criminal tribunal as an instrument for the exercise of its own principal function of maintenance of peace and security, i.e. as a measure contributing to the restoration and maintenance of peace in the former Yugoslavia.”
- It cannot in my judgement make any meaningful difference (in the context of the Motion) that the Security Council has chosen to authorise the Secretary-General to establish a court with a similar purpose by agreement with a single state (the state where peace needs to be restored) rather than by unilateral action or by action in agreement with many states. Indeed, the problem with the applicant’s argument is demonstrated by its conclusion that “the situation may have been different if the Special Court had been set up by agreement involving a wide group of concerned states” But a multilateral agreement would presumably make it more difficult for the Security Council to terminate the court, since it would need the agreement of a number of states rather than one. In any event, it is a mistake to object that by making the agreement the UN has transferred the responsibility for matters of concern to the international community as a whole to a court beyond its influence or control. Judicial independence requires courts to be “beyond the influence or control” of any political body in their judicial functioning. There is no illegality attending the Security Council decision that the non-judicial functions of the Special Court for Sierra Leone should be the responsibility of a management committee on which the Secretary-General is represented (rather than the responsibility of the Secretary-General himself), or that any changes to the Court’s Agreement or Statute should be made with the consent of the state where the Court exercises its jurisdiction.
- The applicant raises the “what if...” spectre of the Government of Sierra Leone refusing to agree to an amendment of the Statute or a termination or expansion of the Court if this is considered necessary by the Security Council to maintain international peace and security. But the answer in that event would be found in Article 25 of the Charter, by which all UN members (i.e. including Sierra Leone, however reluctantly on this hypothesis) agree to accept and carry out the decisions of the Security Council. Furthermore, Chapter VII of the Charter provides ample power for the Security Council to override any state’s obstruction of measures to maintain international peace and security, and that would enable it to terminate the Court, were such a step necessary for that purpose, without Sierra Leonean Government agreement.
- The Prosecution has explained how the UN retains “a panoply of other mechanisms of oversight and control of the non-judicial functioning of the Special Court” ranging from its role in the Management Committee and in appointing the Registrar and senior staff to securing resources and funding for the Court’s operations. I am entirely satisfied that, by entering into the Agreement with all these powers and safeguards, the UN did not put beyond its powers the right to take whatever action may in the future be necessary to ensure peace and security in the region, notwithstanding that decisions about the structure or constitution of the Court may require the agreement of the state with the greatest interest in that peace and security.
- None of the arguments made in four substantial written submissions could create any doubt about the validity of the agreement or the consequent jurisdiction of the Court. The applicant seeks an oral hearing on the ground that its arguments are novel (which is true) and important, but the precondition for such a hearing is that the Court has been satisfied, having considered the written submissions of both parties, that there is firstly an issue of real juristic doubt and difficulty (novelty and importance are not sufficient) and secondly that an oral hearing would be likely to assist the Court to make up its mind on that issue. Neither precondition is satisfied in this case. These observations should be borne in mind by counsel before deciding to request an oral hearing.
- For those reasons and for those given by Justice Winter, I would dismiss the Motion.
Done at Freetown this twenty-fifth day of May 2004
[Seal of the Special Court for Sierra Leone]
 Para 10, Defence Reply to the Prosecution Response to the Additional Written Submission Pertaining to the Preliminary Motion on Lack of Jurisdiction: Illegal Delegation of Powers by the United Nations, 26 January 2004.
 Charter of the United Nations, Article 97.
 Paras 37 – 38, Prosecutor v Dusko Tadic, IT-94-1, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995.
 Para 7, Defence Reply to the Prosecution Response to the Preliminary Defence Motion on the Lack of Personal Jurisdiction: Illegal Delegation of Jurisdiction by Sierra Leone, 30 November 2003.
 Para 10 of Defence Reply to the Prosecution Response to the Additional Written Submission Pertaining to the Preliminary Motion on Lack of Jurisdiction: Illegal Delegation of Powers by the United Nations, 26 January 2004.