The Cost of Conflation: Preserving the Dualism of Jus ad Bellum and Jus in Bello in the Contemporary Law of War

Abstract

On October 9, 2007, a trial chamber of the Special Court for Sierra Leone (SCSL) sentenced two leaders of the Civil Defence Forces (CDF), one of the parties to Sierra Leone's civil war. The Chamber had convicted them of exceptionally brutal crimes: mutilation, amputation, hacking civilians to death with machetes, and other sadistic killings. Among relevant mitigating factors, however, it noted that the defendants had fought for "a legitimate cause": "to restore the democratically elected Government of President Kabbah." It held that their sentences should therefore be mitigated significantly, for although their conduct transgressed "acceptable limits," they served a "cause that is palpably just and defendable": "facilitating the restoration of democracy, peace and security in [Sierra Leone]"-precisely the objective the Security Council sought to achieve by encouraging the SCSL's establishment. Furthermore, the Chamber opined, absent mitigation, militias in future civil wars might not intervene on behalf of legitimate governments. Their members might fear that they, too, would be judged harshly after the conflict.