o
SPECIAL
COURT FOR SIERRA LEONE
IN THE
APPEALS CHAMBER
|
Before: |
Justice
George Gelaga King, Presiding Judge Justice
Emmanuel Ayoola Justice
Renate Winter Justice
Raja Fernando Justice
Jon M. Kamanda |
|
|
Registrar: |
Herman
von Hebel |
|
|
Date: |
|
|
|
PROSECUTOR |
Against |
Brima Bazzy Kamara Santigie BORBOR Kanu (Case
No. SCSL-2004-16-A) |
JUDGMENT
|
Office
of the Prosecutor: |
|
Defence
Counsel
for Alex Tamba Brima: |
|
Dr. Christopher Staker Mr. Karim Agha Mr. Ms. Anne Althaus |
|
Kojo Graham |
|
|
|
Defence
Counsel
for Brima Bazzy Kamara: Andrew
Daniels |
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|
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Defence
Counsel
for Santigie Borbor Kanu: Ajibola E. Manly-Spain Silas Chekera |
CONTENTS
I. Introduction............................................................................................................ 5
A. The Special Court for Sierra
Leone.......................................................... 5
B. The Armed Conflict in Sierra
Leone.......................................................... 6
C. The Trial Proceedings...................................................................................... 8
1. The
Indictment.......................................................................................................... 8
2. The Accused............................................................................................................ 10
3. Judgment................................................................................................................. 11
4. Verdict.................................................................................................................... 11
5. Sentence.................................................................................................................. 12
II. The Appeals............................................................................................................. 13
A. The Prosecution’s Grounds of
Appeal................................................... 13
B. Brima’s Grounds of Appeal.......................................................................... 13
C. Kamara’s Grounds of Appeal..................................................................... 14
D. Kanu’s Grounds of Appeal........................................................................... 14
E. Common Defects in the Brima and
Kamara Grounds of Appeal 15
III. Common Grounds of Appeal Relating to the Indictment....... 15
A. Issues
Arising from the Common Grounds of Appeal..................... 15
1. Applicable Principles............................................................................................. 16
(a) Specificity........................................................................................................... 16
(b) Exception to Specificity..................................................................................... 16
2. Challenges to an Indictment on Appeal................................................................. 17
B.
Prosecution’s Second Ground of Appeal: Locations Not Pleaded in the Indictment......................................................................... 18
1. Trial
Chamber’s Findings....................................................................................... 18
2. Submissions of the Parties..................................................................................... 19
(a)
Prosecution’s Submissions................................................................................. 19
(b) Response of the Accused.................................................................................... 21
3. Discussion: Reversal of a Previous Interlocutory Decision.................................. 22
C. Prosecution’s Fourth Ground of
Appeal and Kanu’s Tenth Ground of Appeal: Joint Criminal Enterprise.................................. 23
1. Trial
Chamber’s Findings....................................................................................... 23
2. Submission of
the Parties....................................................................................... 24
3. Discussion............................................................................................................... 26
4. Disposition.............................................................................................................. 31
D. Prosecution’s Sixth Ground of
Appeal: The Duplicity of Count 7.................................................................................................................................. 31
1. Discussion............................................................................................................... 35
E. Kanu’s Second Ground of Appeal:
Waiver of Indictment Defects................................................................................................................. 38
Discussion................................................................................................................... 39
IV. Common
Issues of Fact: Evaluation of Evidence and Witness Credibility............................................................................................................ 40
A. Brima’s Ninth, Tenth and Eleventh
Grounds of Appeal: Evaluation of Evidence.............................................................................. 40
1. Brima’s Ninth
Ground of Appeal........................................................................... 40
(a) Submissions
of the Parties.................................................................................. 40
(b) Discussion.......................................................................................................... 41
2. Brima’s Tenth
and Eleventh Grounds of Appeal: Failure to Consider the Rivalry Between Brima
and Witness TF1-334................................................................. 42
B. Kamara’s Eighth Ground of Appeal:
Credibility of Prosecution Witnesses............................................................................................................ 42
1. Submissions
of the Parties..................................................................................... 42
2. Discussion............................................................................................................... 43
(a) The Trial
Chamber’s Approach to Accomplice Evidence................................... 43
(b) Evaluation
of the Evidence of Prosecution Witnesses........................................ 46
C. Kanu’s Third Ground of Appeal:
Evaluation of Defence Evidence............................................................................................................... 49
1. Submissions
of the Parties..................................................................................... 49
2. Discussion............................................................................................................... 49
D. Kanu’s Fourth Ground of Appeal:
Evidence of Accomplice Witnesses............................................................................................................ 52
1. Submissions
of the Parties..................................................................................... 52
2. Discussion............................................................................................................... 53
V. The
Prosecution’s Appeal.............................................................................. 53
A. Prosecution’s First and Third
Grounds of Appeal: The “Bombali-Freetown Campaign” and Kamara’s Alleged
Responsibility under Article 6(1) for Crimes Committed in Port Loko District.......................................................................................... 53
B. Prosecution’s Fifth Ground of
Appeal: The “Enslavement Crimes” as Acts of Terror and Collective Punishment.............. 55
1. Trial Chamber
Findings.......................................................................................... 55
2. Submissions
of the Parties..................................................................................... 55
3. Discussion............................................................................................................... 55
C. Prosecution’s Seventh Ground of
Appeal: Forced Marriage.... 56
1. The Trial
Chamber’s Findings and Submissions of the Parties............................ 56
2. Discussion............................................................................................................... 58
(a) The Nature
of “Forced Marriage” in the Sierra Leone Conflict and its Distinction from
Sexual Slavery.......................................................................................... 61
(b) Does Forced
Marriage Satisfy the Elements of “Other Inhumane Acts”?........... 65
D. Prosecution’s Eighth Ground of
Appeal: Cumulative Convictions under Counts Ten and Eleven....................................... 67
E. Prosecution’s Ninth Ground of
Appeal: Cumulative Convictions........................................................................................................ 69
VI. Brima’s
Appeal..................................................................................................... 73
A. Brima’s First Ground of Appeal:
Equality of Arms........................ 73
1. Submissions
of the Parties..................................................................................... 73
2. Discussion............................................................................................................... 73
B. Brima’s Fourth and Sixth Grounds
of Appeal: Superior Responsibility for Crimes Committed in Bombali, Freetown
and Other Parts of the Western Area................................................. 75
C. Brima’s Fifth Ground of Appeal:
Article 6(1) Responsibility for Murder and Extermination in Bombali District............................ 76
VII. Kamara’s
Appeal............................................................................................... 76
A. Kamara’s First Ground
of Appeal: Ordering Murder of Five Civilians in Karina.......................................................................................... 76
1. Submissions
of the Parties..................................................................................... 76
2. Discussion............................................................................................................... 77
B.
Kamara’s Second, Third and Fourth Grounds of Appeal: Planning Crimes in Bombali
District and Other Parts of the Western Area.................................................................................................... 77
C. Kamara’s Fifth and Sixth Grounds
of Appeal: Aiding and Abetting Crimes in Freetown and the Western Area.................. 78
1. Errors of Law.......................................................................................................... 78
2. Errors in the
Evaluation of Evidence..................................................................... 80
D. Kamara’s Seventh Ground of
Appeal: Superior Responsibility 80
1. Trial Chamber
findings.......................................................................................... 81
2. Submissions
of the Parties..................................................................................... 82
3. Discussion............................................................................................................... 83
(a) Kamara’s
Responsibility for Crimes Committed by Savage.............................. 84
(b) Kamara’s
Effective Control in Kono District and the Testimony of Witness TF1-334 on AFRC
Muster Parades in Kono District................................................ 84
(c) Kamara’s
Effective Control in Bombali District................................................. 86
(d) Conflicting
Testimony of Witness TF1-334 and Witness TF1-167.................... 87
(e) Kamara’s
Responsibility as a Superior for Crimes in Freetown......................... 87
VIII. Kanu’s
Appeal.................................................................................................... 88
A. Kanu’s First Ground of Appeal:
Those Bearing the Greatest Responsibility................................................................................................... 88
1. Submissions
of the Parties..................................................................................... 88
2. Discussion............................................................................................................... 90
B. Kanu’s Fifth and Sixth Grounds of
Appeal: Effective Control for Superior Responsibility....................................................................... 93
1. Submissions
of the Parties..................................................................................... 93
2. Discussion............................................................................................................... 94
C. Kanu’s Seventh Ground of Appeal: Mens Rea for Crimes Related to Child
Soldiers............................................................................................ 94
1. Introduction............................................................................................................. 94
D. Kanu’s Ninth Ground of Appeal:
Findings of Responsibility Pursuant to Article 6(1) of the Statute............................................. 95
1. The Parties’
Submissions and the Findings of the Trial Chamber........................ 95
2. Discussion............................................................................................................... 96
IX. Grounds of
Appeal Relating to Sentence......................................... 99
A. Introduction....................................................................................................... 99
B. Standard of Review on Appeals
Relating to Sentence................ 99
C. Excessive Sentences: Ground
Twelve of Brima’s Appeal and Ground Ten of Kamara’s Appeal.................................................... 100
D. Mitigating Factors: Ground Nine
of Kamara’s Appeal and Grounds Eleven, Fifteen, Sixteen, Seventeen and Eighteen
of Kanu’s Appeal................................................................................................. 100
E. Double-Counting, Gravity of the
Offence and Aggravating Factors: Ground Twelve of Brima’s Appeal................................... 101
F. Kanu’s Eighth Ground of Appeal:
Cumulative Convictions and Sentence............................................................................................................ 102
1. Submissions
of the Parties................................................................................... 102
2. Discussion............................................................................................................. 102
G. Sentence: General Conclusion............................................................... 103
X. Disposition............................................................................................................ 105
XI. Annex A:
Procedural History.................................................................. 107
XII. Annex
B: Glossary.......................................................................................... 110
A. Cases Cited......................................................................................................... 110
1. Special Court
for Sierra Leone............................................................................. 110
2. The
International Criminal Tribunal for the former Yugoslavia......................... 110
3. The
International Criminal Tribunal for Rwanda................................................ 114
4. Other Court
Decisions.......................................................................................... 115
B. Special Court Instruments........................................................................ 115
C.
International Legal Instruments........................................................ 115
D. Secondary Sources....................................................................................... 116
The Appeals Chamber of
the
Seised of appeals from the Judgment rendered by Trial
Chamber II (“Trial Chamber”) on
Having considered the written and oral submissions
of both Parties and the Record on Appeal;
HEREBY
RENDERS
its Judgment.
1.
In
2000, following a request from the Government of Sierra Leone, the United
Nations Security Council authorised the United Nations Secretary-General to
negotiate an agreement with the Government of Sierra Leone to establish a
Special Court to prosecute persons responsible for the commission of crimes
against humanity, war crimes, other serious violations of international
humanitarian law, and violations of Sierra Leonean law during the armed
conflict in Sierra Leone.[2]
2.
As
a result, the
3.
In
particular, the Statute of the
4.
The
armed conflict in
5.
In
March 1996, elections were held in
6.
In
the months that followed, negotiations between the Government and the RUF
resulted in the Abidjan Peace Agreement, signed on
7.
On
8.
The
AFRC was not immediately able to exercise control over the entire
9.
On
10.
The
Government of ousted President Kabbah was reinstated in March 1998.[31]
11.
After
the fall of the AFRC, widespread atrocities continued to be committed throughout
12.
On
13.
The
original Indictments against Alex Tamba Brima (“Brima”), Brima Bazzy Kamara
(“Kamara”) and Santigie Borbor Kanu (“Kanu”) were approved on
14.
The
Further Amended Consolidated Indictment (“Indictment”) comprised a total of 14
Counts. These Counts charged Brima, Kamara and Kanu (the “Accused”) with:
(i)
Seven
Counts of crimes against humanity, namely: extermination, murder, rape, sexual
slavery and any other form of sexual violence, “Other Inhumane Acts” and
enslavement (Counts 3, 4, 6, 7, 8, 11, and 13, respectively);
(ii)
Six
Counts of violations of Article 3 Common to the Geneva Conventions and of
Additional Protocol II, namely: acts of terrorism, collective punishments,
violence to life, health and physical or mental well-being of persons (in
particular murder and mutilation of civilians), outrages upon personal dignity
and pillage (Counts 1, 2, 5, 9, 10 and 14, respectively); and
(iii)
A
single Count of “other serious violation of international humanitarian law”
(Count 12) consisting of conscripting or enlisting children under the age of 15
years into armed forces or groups, or using them to participate actively in
hostilities.
15.
The
Indictment stated that the Accused were individually criminally responsible,
pursuant to Articles 6(1) and 6(3) of the Statute, for the crimes stated above
and further alleged that the Accused participated in a joint criminal
enterprise (“JCE”) with the RUF, the objective of which was to take any action
necessary to gain and exercise political power and control over the
16.
It
is pertinent to note, as observed by the Trial Chamber, that at various stages
of the proceedings the Accused raised objections to the Indictment on the
ground of vagueness.[41]
Brima submitted that the Indictment failed to plead with precision the crimes
it was alleged he committed in person.[42]
Kamara submitted that there was a lack of specificity in pleading individual
criminal responsibility pursuant to Article 6(1) of the Statute.[43]
Kamara further contended that the form of pleading joint criminal enterprise in
the Indictment was defective in that the common purpose “to take any action to
gain and exercise political control over the
17.
Consequent
upon the May 1997 coup d’état, the
Accused became members of the Supreme Council of the AFRC, the highest
decision-making body of the military junta.[46]
In that capacity they attended co-ordination meetings between leaders of the
AFRC and the RUF.[47]
In addition, Brima and Kamara were appointed as Public Liaison Officers (“PLO”)
2 and 3, respectively.[48]
Under the AFRC regime, PLOs had supervisory responsibility over designated
government ministries.[49]
The Decree establishing the office of PLO provided that they were responsible
for “supervising, monitoring and coordinating the operations of any Department
of State or such other business of Government, as may from time to time be
assigned to [them].”[50]
As PLO 2, Brima supervised the Ministry of Works and Labour, the Department of
Customs and Excise, as well as two Government parastatals, Sierratel and
SALPOST.[51]
Similarly, as PLO 3, Kamara supervised the Ministries of Agriculture, Forestry,
Fisheries, Energy and Power, the Income Tax Department, and Queen Elizabeth
Quay.[52]
18.
In
March 1998, shortly after the AFRC junta was dislodged by ECOMOG forces, Johnny
Paul Koroma separated from his soldiers on the pretext that he was travelling
abroad to organise logistics for the troops.[53]
The leadership of the AFRC then fell to a senior member of the
19.
The
trial of the Accused opened before Trial Chamber II on
20.
The
Trial Chamber found that there was an armed conflict in
21.
The
Trial Chamber evaluated the individual criminal responsibility of each of the
Accused under Article 6(1) and 6(3) of the Statute. The Trial Chamber
specifically held that “with respect to Joint Criminal Enterprise as a mode of
criminal liability, the Indictment [had] been defectively pleaded” and that it would not
consider JCE as a mode of criminal responsibility.[59]
22.
The
Accused were found guilty and convicted of six Counts of violations of Article
3 Common to the 1949 Geneva Conventions for the Protection of War Victims and
of Additional Protocol II, four Counts of crimes against humanity pursuant to
Articles 2.a, 2.b, 2.c and 2.g of the Statute, and one Count of other serious
violations of international humanitarian law pursuant to Article 4.c of the
Statute.[60]
23.
With
respect to the crime of rape as a crime against humanity, charged under Count 6
of the Indictment, Brima, Kamara, and Kanu were convicted on the basis of
superior responsibility under Article 6(3) of the Statute.[61]
24.
The
Appellants Brima and Kamara were acquitted of the crime of “Other Inhumane
Acts” as a crime against humanity, charged under Count 11 of the Indictment,
and no conviction was entered against Kanu.[62]
25.
The
Trial Chamber did not enter convictions under Counts 7 and 8 of the Indictment.[63]
Count 7 charged the offence of sexual slavery and any other form of sexual
violence. A majority of the Trial Chamber held that the charge violated the
rule against duplicity and dismissed it for that reason.[64]
Count 8 was dismissed on the ground of redundancy based on the Trial Chamber’s
finding that the evidence led in support of that Count did not establish any
offence distinct from sexual slavery.[65]
26.
For
all the Counts of which they were found guilty, Alex Tamba Brima and Santigie
Borbor Kanu were each sentenced to a single term of imprisonment of fifty (50)
years, and Brima Bazzy Kamara to a single term of imprisonment of forty-five (45)
years. The Trial Chamber ordered that each be given credit for any period
during which they were detained in custody pending trial.[66]
27.
The
Prosecution filed nine Grounds of Appeal.[67] Grounds One to Three raise the question of
whether the Accused should have been found criminally responsible for
additional crimes in Bombali District, Freetown and other parts of the Western
Area, and Port Loko District and whether the Trial Chamber should have made
factual findings on crimes in certain locations. In Ground Four the Prosecution complains that
the Trial Chamber failed to consider JCE liability. The substance of Ground
Five of the Prosecution’s Appeal is that the Trial Chamber erred in not
including evidence of the three enslavement crimes[68]
as a basis of criminal responsibility for offences charged in Counts One and
Two of the Indictment. Grounds Six, Seven and Eight raise questions of
duplicity and redundancy. Finally, Ground Nine concerns the Trial Chamber’s
approach to cumulative convictions.
28.
The
Appellant Brima filed twelve Grounds of Appeal of which four were abandoned.[69]
Ground One
raises the issue of equality of arms, complaining that the Trial Chamber failed
“to consider the fact that the inequality of arms between the Prosecution and
Defence denied or substantially impaired the right of Brima to a fair trial
resulting in a miscarriage of justice.” [70]
29.
Six
of Brima’s Grounds of Appeal state that the Trial Chamber erred in law and in
fact in its evaluation of the evidence by finding that he was individually
criminally responsible under Articles 6(1) and 6(3) of the Statute for the
crimes stated in the Indictment. [71]
30.
In
his Twelfth Ground of Appeal he complains that the Trial Chamber erred in law
and fact by failing to consider a number of mitigating factors, that the
imposition of a global sentence of fifty (50) years was excessive and
disproportionate, and that the Trial Chamber impermissibly double-counted
aggravating factors.[72]
31.
Kamara
filed thirteen Grounds of Appeal of which five were against sentence. In
Grounds One to Six he contends that the Trial Chamber erred in law and fact by
misapplying the modes of liability for ordering, planning, and aiding and
abetting.[73]
In Ground Seven he complains that the Trial Chamber misapplied the standard for
superior responsibility.[74]
In Ground Eight he contends that the Trial Chamber erred in its evaluation of
the credibility of witnesses.[75]
In Grounds Nine to Thirteen, Kamara states that the Trial Chamber failed to
consider mitigating circumstances,[76]
misunderstood underlying sentencing principles[77]
and consequently imposed an excessive sentence.[78]
32.
Kanu
filed Nineteen Grounds of Appeal of which eight relate to sentencing. The
issues raised by the Grounds of Appeal against conviction touch on:
33.
The
Grounds of Appeal against sentence are rather wide-ranging, raising principles
of sentencing, the effect of amnesty as a mitigating factor and whether it is
not a mitigating factor that an accused is not a person who bears the greatest
responsibility.
34.
It is expedient to note that many of the Grounds of
Appeal raised by Brima and Kamara share a common deficiency. Although
each of them alleges error in law or in fact, few of them give particulars of
such error. This failure makes it imperative for the Appeals
Chamber to repeat what should by now be regarded as commonplace: that in order
for the Appeals Chamber to assess a party’s arguments on appeal, the party must
set out its Grounds of Appeal clearly, logically and exhaustively.
35.
Grounds Two, Four and Six of the Prosecution’s Appeal,
as well as Grounds Two and Ten of Kanu’s Appeal all raise issues relevant to
the proper pleading of the Indictment. Whilst the Grounds of Appeal filed by
the two Parties advance different arguments, they raise similar issues with
respect to the general pleading principles applicable to indictments at
international criminal tribunals.
36.
Furthermore, the Parties’ submissions in support of
these Grounds of Appeal state that the Trial Chamber committed a procedural
error in reconsidering earlier pre-trial or interlocutory decisions without
giving notice to the Parties or without giving them an opportunity to be heard
on the correctness of the previous decision(s).
37.
In
order to guarantee a fair trial the Prosecution is obliged to plead material
facts with a sufficient degree of specificity.[79]
The question whether material facts are pleaded with the required degree of
specificity depends on the context of the particular case.[80]
38.
In particular, the required degree of specificity
varies according to the form of participation alleged against an accused.[81]
Where direct participation is alleged in an indictment, we opine that the
Prosecution’s obligation to provide particulars in an indictment must be
adhered to fully.[82]
39.
Where superior responsibility is alleged, the
liability of an accused depends on several material factors such as the
relationship of the accused to his subordinates, his knowledge of the crimes
and the necessary and reasonable measures that he failed to take to prevent the
crimes or to punish his subordinates. Therefore, these are material facts that
must be pleaded with a sufficient degree of specificity.[83]
40.
In considering the extent to which there is compliance
with the specificity requirement in an indictment, the term specificity should
not be understood to have any special meaning. It is to be understood in its
ordinary meaning as being specific in regard to an object or subject matter. An
object or subject matter that is particularly named or defined cannot be said
to lack specificity.
41.
The pleading principles that apply to indictments at
international criminal tribunals differ from those in domestic jurisdictions
because of the nature and scale of the crimes when compared with those in
domestic jurisdictions. For this reason, there is a narrow exception to the
specificity requirement for indictments at international criminal tribunals. In
some cases, the widespread nature and sheer scale of the alleged crimes make it
unnecessary and impracticable to require a high degree of specificity.[84]
42.
Challenges to the form of an indictment should be made
at a relatively early stage of proceedings and usually at the pre-trial stage
pursuant to Rule 72(B)(ii) of the Rules of Procedure
and Evidence (“Rules”) which provides that it should be made by a preliminary
motion.[85]
An accused, therefore, is in
the ordinary course of events expected to challenge the form of an indictment
prior to the rendering of judgment or at
the very least, challenge the admissibility of evidence of material facts not
pleaded in an indictment by interposing a specific objection at the time the
evidence is introduced.[86]
43.
Failure
to challenge the form of an indictment at trial is not, however, an absolute
bar to raising such a challenge on appeal.[87]
An accused may well choose not to interpose an objection when certain
evidence is admitted or object to the form of an indictment, not as a means of
exploiting a technical flaw, but rather, because the accused is under the
reasonable belief that such evidence is being introduced for purposes other
than those that relate to the nature and cause of the charges against him.
44.
Where an accused fails to make specific challenges to
the form of an indictment during the course of the trial or challenge
the admissibility of evidence of material facts not pleaded in the indictment, but
instead raises it for the first time on appeal, it is for the Appeals Chamber
to decide the appropriate response. Where the Appeals Chamber holds that an
indictment is defective, the options open to it are to find that the accused
waived his right to challenge the form of an indictment, to reverse the
conviction, or to find that no miscarriage of justice had resulted
notwithstanding the defect.[88]
In this regard the Appeals Chamber may also find that any prejudice that may
have been caused by a defective indictment was cured by timely, clear and
consistent information provided to the accused by the Prosecution.[89]
45.
The Appeals Chamber must ensure that a failure to pose
a timely challenge to the form of the indictment did not render the trial
unfair. The primary concern at the appeal stage therefore, when faced with a
challenge to the form of an indictment, is whether the accused was materially
prejudiced.[90]
46.
The
substance of the Prosecution’s Second Ground of Appeal is that the Trial
Chamber erred in law and in fact in failing to make findings on the responsibility
of each Appellant in respect of crimes committed in several locations in
Koindugu and Bombali Districts, Freetown and other parts of the Western Area
and in Port Loko District including other locations enumerated in the Ground of
Appeal, in respect of which evidence had been led.
47.
The
Trial Chamber in ruling on the submission of Brima complaining among other
things, that the Indictment was impermissibly vague, because particulars of
where the crimes occurred were not given, stated that:
“the Prosecution
has led a considerable amount of evidence with respect to killings, sexual
violence, physical violence, enslavement and pillage which occurred in
locations not charged in the indictment [and that] while such evidence may
support proof of the existence of an armed conflict or a widespread or
systematic attack on a civilian population, no finding of guilt for those
crimes may be made in respect of such locations not mentioned in the
indictment.”[91]
48.
It
had been pleaded in several paragraphs of the Indictment that particular acts
took place in several named locations in named Districts. It was made clear
that the named locations were not exhaustive of the locations where the acts
took place. An example is paragraph 45 of the Indictment where it was alleged that
“members of AFRC/RUF unlawfully killed several hundred civilians in various
locations in Kono District, including Koidu, Tombodu, Foindu, Willifeh, Mortema
and Biaya.” Commenting on this manner of pleading the Trial Chamber stated:
“Moreover, the jurisprudence of
international criminal tribunals makes it clear that an accused is entitled to
know the case against him and is entitled to assume that any list of alleged
acts contained in an indictment is exhaustive, regardless of the inclusion of
words such as “including”, which may imply that other unidentified crimes in
other locations are being charged as well.”[92]
49.
The
Trial Chamber found that with respect to crimes alleged in the Indictment, the
Prosecution led evidence of offences which occurred in locations not
specifically pleaded. As a consequence, it held that with the exception of
Counts 9, 12 and 13 the crimes of recruitment of child soldiers, abductions and
forced labour and sexual slavery (the three “enslavement crimes”), the
Indictment was defective and that it would not make any findings on crimes
perpetrated in locations not specifically pleaded. It is to be noted that the
exception made by the Trial Chamber was because the Accused had “not
specifically objected to lack of specificity with respect to locations [in]
relation to enslavement, sexual slavery and child soldier recruitment in Counts
9,[93]
12 and 13,” and that in the interest of justice they would treat pleading of
those counts as permissible. The Trial
Chamber held that evidence of crimes perpetrated in locations not specifically
pleaded would only be considered “for proof of the chapeau requirements of
Articles 2, 3 and 4 where appropriate, that is the widespread or systematic
nature of the crimes and an armed conflict.”[94]
50.
The
Prosecution submits that contrary to the Trial Chamber’s findings, “locations”
were properly pleaded in the Indictment and that in the alternative any defects
in the Indictment were cured by providing timely, clear and consistent
information to the Accused.[95]
51.
It submits that the Indictment is not defective with respect
to the pleading of locations and that whilst certain locations may not have
been listed exhaustively, they were nonetheless correctly pleaded. The Indictment
uses the terms “various” and “including” to demonstrate clearly that named
locations within districts of
52.
In support of its argument, the Prosecution submitted
that Kamara had filed a preliminary motion at the pre-trial stage alleging just
such a lack of specificity in the pleading of locations in the Indictment.[96]
Kamara’s argument, however, was expressly rejected by Trial Chamber I[97]
which had at the time dealt with the preliminary motion. Consequently, the Prosecution contends that Trial Chamber II’s finding
in its Judgment that locations were not properly pleaded, amounted to a
“[reversal of] previous interlocutory decisions in the case, or [a decision] proprio motu that the Indictment was
defective.”[98]
It further argues that in so doing, Trial Chamber II committed an error of law
or procedure in that it reversed a previous interlocutory decision “without
first giving the parties the opportunity to argue the point.”[99]
53.
The
Prosecution further asserts that apart from Kamara’s preliminary motion, the
Accused never raised an objection with respect to the pleading of locations in
the Indictment. In particular, the Accused did not raise the issue in motions for
acquittal pursuant to Rule 98 of the Rules, nor did the Trial Chamber in its
Rule 98 Decision give notice to the Parties that it “had taken a decision not
to consider evidence relating to locations not specifically pleaded . . .
otherwise than for the purpose of establishing whether there was a widespread
and systematic attack against the civilian population.”[100]
54.
The Prosecution submits, that as it was not aware that
the Trial Chamber would not consider evidence relating to locations not
specifically pleaded in the Indictment, and was never afforded an opportunity
to make representations on the issue,[101]
it was “entitled to proceed at trial on the basis that the Indictment was not
defective in pleading the locations in the way that it did . . . .”[102]
55.
The Prosecution further submits that as a general
principle of law, locations of crimes should be pleaded in an indictment but
that the degree of specificity depends on the nature of the Prosecution’s case.
In circumstances where crimes are alleged on a large scale, details of precise
locations of events need not be pleaded.[103]
It further submits that the Trial Chamber recognised these
principles and the large
scale and prolonged nature of the conflict in
56.
Finally, the Prosecution submits that the Appellant “made
no motions during the trial . . . in respect of Prosecution evidence of crimes
in locations not specifically pleaded . . . [and that therefore, the Appellant]
waived their right to now claim [they were] prejudiced.”[105] This failure to object, it argued, requires
the Appellant to bear the burden of establishing that the pleading of locations
in the Indictment was defective, and of establishing that their ability to
prepare a defence was materially impaired by that defect.[106]
57.
As
a consequence of its submissions, the Prosecution requests the Appeals Chamber
to revise the Trial Chamber’s finding or remit matters back to the Trial
Chamber for further “findings of fact on whether each of the Accused is individually
responsible for these crimes.”[107]
58.
In response, Brima and Kamara contend that Trial
Chamber I’s “Decision and Order on Defence Preliminary Motion for Defects in
the Form of the Indictment” suggests that words as: “such as”, “various
locations”, or “various areas . . . including” are contextual and that in
context, that Decision supports the use of such terms only to demonstrate the
widespread and systematic nature of an attack.[108]
They argue that the Prosecution’s contention that it was not put on notice of
defects in the Indictment so far as the pleading of locations is concerned is
without merit and that the Trial Chamber’s “Decision on Defence Motions for
Judgement of Acquittal Pursuant to Rule 98” was unambiguous in its meaning and
effect.[109]
59.
The Appellant Kanu submits that the Indictment failed
to specify adequately locations in which certain crimes were committed and was
therefore defective.[110]
According to Kanu, where an Indictment is found to be defective, consideration
must also be given to whether the Appellant was accorded a fair trial. In this
instance, Kanu insists that he was entitled to assume that the list of alleged
locations in the Indictment was exhaustive. He contends that “the word
‘including’ in the Indictment, in so far as it left the list of places open,
did not make it clear that the crimes in question were also committed in
locations . . . other than those expressly mentioned.”[111]
According to Kanu, this defect materially affected his ability to prepare his
defence and is contrary to the general principle of law requiring that “the
location of crimes alleged to have been committed be specified in the
Indictment with as much clarity as possible so that the Accused is not
materially prejudiced in the preparation of his defence.”[112]
60.
All the Appellants therefore submit that the Trial
Chamber correctly arrived at its conclusion and in so doing protected the fair
trial rights of the Appellant.
61.
We find that Trial Chamber II reconsidered the
decision reached by Trial Chamber I and came to a different conclusion with
respect to the pleading of locations in the Indictment.
62.
It seems to us that the following questions arise for
determination:
(i)
Whether Trial Chamber II properly reconsidered issues
relating to the alleged defects in the Indictment;
(ii)
If Trial Chamber II had such power, whether it ought
not to have given the parties an opportunity to be heard on the matter.
63.
In the Ntagerura et al. case, the ICTR
Appeals Chamber held that it falls within the discretion of a Trial Chamber to
reconsider a previous decision if a clear error of reasoning has been
demonstrated or if it is necessary to prevent an injustice.[113] We endorse that
opinion. Consequently, whether or not an issue relating to the form of an
indictment should be reconsidered should be determined on a case-by-case basis
having regard to the stage of proceedings, the issues raised by the earlier
decision and the effect of reconsideration or reversal on the rights of the
Parties.
64.
With
regard to question (ii) the Parties ought to have been given an opportunity to be heard
on the matter as natural justice demands. However, even if they failed to
accord the Parties that opportunity, this Chamber has the power to review the
situation and come to its own conclusion in the interest of justice. In all the
circumstances of the case, we opine that the Trial Chamber’s error in not
expressly giving notice to the Parties of its intention to reconsider the
pre-trial decision, and its failure to re-open the hearings did not invalidate
the decision. The Trial Chamber’s limited treatment of the evidence of crimes
committed in such locations was a proper exercise of its discretion in the
interest of justice, taking into account that it is the Prosecution’s
obligation to plead clearly material facts it intends to prove, so as to afford
the Appellants a fair trial.
65.
The
Prosecution’s Second Ground of Appeal therefore fails.
66.
Prior
to the establishment of Trial Chamber II, Trial Chamber I, ruling on a
preliminary motion brought by the Appellant, dealt with several pre-trial
issues in this case, including the form of the Indictment and the pleading of
joint criminal enterprise (“JCE”) as a form of liability. In this regard the
Trial Chamber held that:
“the
Indictment in its entirety, is predicated upon the notion of joint criminal
enterprise . . [and that] the nature of the alleged joint criminal enterprise,
the nature of the Accused’s participation in it, the identity of those involved
in the same, and the time frame of the alleged joint criminal enterprise are
all pleaded with the degree of particularity as the factual parameters of the
case admits.”[114]
67.
On
“the
Prosecution is required to know its case before the start of the trial and to
know of the changing nature and purposes of the enterprise either between the
AFRC and the RUF or within the AFRC. All those new and different purposes have
to be pleaded in the indictment and the Prosecution cannot be permitted to
mould the case against the accused as the trial progresses.”[117]
68.
In
its Fourth Ground of Appeal the Prosecution now challenges the Trial Chamber’s
finding that the joint criminal enterprise was defectively pleaded. The
Prosecution submits that the Trial Chamber committed a procedural and legal
error by reconsidering, at the final judgment stage, earlier interlocutory
decisions concerning defects in the form of the Indictment without reopening
the hearings.[118]
It also submits that the Trial Chamber committed a procedural, legal and
factual error in finding that joint criminal enterprise liability was
defectively pleaded in the Indictment.[119]
In the alternative, it submits that even if joint criminal enterprise liability
was defectively pleaded, the defects were subsequently cured or were of such a
nature that they did not prejudice the Defence so as to justify the Trial
Chamber’s failure to consider joint criminal enterprise liability.[120]
69.
Kanu,
in his Tenth Ground of Appeal, submits that once the Trial Chamber found that
joint criminal enterprise had been defectively pleaded in the Indictment, it
should have quashed the Indictment because the Indictment was predicated in its
entirety on the notion of a joint criminal enterprise.[121]
He also submits that the defective Indictment substantially prejudiced him in
the preparation of his defence because at all material times he was unsure of
the exact nature of the case against him.[122]
70.
The
Prosecution replies that the purpose of the joint criminal enterprise was
inherently criminal and that joint criminal enterprise was therefore not
defectively pleaded.[123]
It argues that “even where the ultimate aim or objective of a common enterprise
is not in itself inherently criminal, it is nonetheless a joint criminal
enterprise if the participants have a common purpose of committing particular
types of crimes in order to achieve that objective.”[124]
The Prosecution argues that the Trial Chamber erred in treating the “ultimate
objective of the joint criminal enterprise as the alleged common criminal
purpose itself, and in finding that the Indictment therefore did not plead a
joint criminal enterprise that was inherently criminal.”[125]
In particular, it submits that the Indictment as a whole alleges a common plan
to carry out a campaign of terrorising and collectively punishing the civilian
population of Sierra Leone through the commission of crimes within the
jurisdiction of the Special Court, in order to achieve the ultimate objective
of gaining and exercising political power and control over the territory of
Sierra Leone.[126]
71.
Brima
and Kamara in their response submit that by alleging in the Indictment that
“the members of the JCE were willing to ‘take any actions necessary,’ ” the
Prosecution failed to indicate clearly “the criminal means involved in
conducting the JCE . . . .”[127]
Kanu submits that “gaining and exercising control over the population of
72.
Article
6(1) of the Statute which is in the same terms as Article 7(1) of the ICTY
Statute prescribes individual criminal responsibility for acts or transactions in which a person has been personally
engaged or in some other way participated in one or more of the five ways
stated in the Article.[130] As was said by the ICTY
Appeals Chamber in Tadić:
“[t]he basic assumption must be
that in international law as much as in national systems, the foundation of
criminal responsibility is the principle of personal culpability: nobody may be
held criminally responsible for acts or transactions in which he has not
personally engaged or in some other way participated (nulla poena sine culpa).”[131]
73.
Article
6(1) does not expressly prescribe individual criminal responsibility through
participation in the realisation of a common design or purpose. It was in these
circumstances that the Appeals Chamber of ICTY in Tadić developed a doctrine of individual criminal responsibility for
participation in a JCE.
74.
The
ICTY Appeals Chamber reasoned thus:
“An interpretation of the Statute
based on its object and purpose leads to the conclusion that the Statute
intends to extend the jurisdiction of the International Tribunal to all
those ‘responsible for serious violations of international humanitarian law’
committed in the former
Thus, all those who have engaged
in serious violations of international humanitarian law, whatever the manner in
which they may have perpetrated, or participated in the perpetration of those
violations, must be brought to justice. If this is so, it is fair to conclude
that the Statute does not confine itself to providing for jurisdiction over
those persons who plan, instigate, order, physically perpetrate a crime or
otherwise aid and abet in its planning, preparation or execution. The Statute
does not stop there. It does not exclude those modes of participating in the
commission of crimes which occur where several persons having a common purpose
embark on criminal activity that is then carried out either jointly or by some
members of this plurality of persons. Whoever contributes to the commission of
crimes by the group of persons or some members of the group, in execution of a
common criminal purpose, may be held to be criminally liable, subject to
certain conditions, which are specified below . . .
Under these circumstances, to
hold criminally liable as a perpetrator only the person who materially performs
the criminal act would disregard the role as co-perpetrators of all those who
in some way made it possible for the perpetrator physically to carry out that
criminal act. At the same time, depending upon the circumstances, to hold the
latter liable only as aiders and abettors might understate the degree of their
criminal responsibility . . .
This interpretation, based on the
Statute and the inherent characteristics of many crimes perpetrated in wartime,
warrants the conclusion that international criminal responsibility embraces
actions perpetrated by a collectivity of persons in furtherance of a common
criminal design. It may also be noted that - as will be mentioned below -
international criminal rules on common purpose are substantially rooted in, and
to a large extent reflect, the position taken by many States of the world in
their national legal systems.” [132]
75.
The
actus
(i)
a
plurality of persons;
(ii)
the
existence of a common plan, design or purpose which amounts to or involves the
commission of a crime provided for in the Statute;
(iii)
participation of the accused in the
common design involving the perpetration of one of the crimes provided for in
the Statute.[133]
76.
The
question for determination in this appeal pertains to the requisite nature of
the common plan, design or purpose. It can be seen from a review of the
jurisprudence of the international criminal tribunals that the criminal purpose
underlying the JCE can derive not only from its ultimate objective, but also
from the means contemplated to achieve that objective. The objective and the
means to achieve the objective constitute the common design or plan.
77.
In Kvočka et al. the ICTY Appeals
Chamber was of the opinion that “the common design that united the accused was
the creation of a Serbian state within the former
78.
Reference to the
indictments in cases of Martić
and Haradinaj et al., cited by the
Prosecution, is similarly instructive. In Haradinaj
et al. for example, it would appear that the Trial Chamber accepted[135] that the pleading of joint criminal enterprise was proper
notwithstanding the Prosecution pleading a common purpose (namely
“consolidate[ing] the total control of the Kosovo Liberation Army over the KLA
operational zone of Dukagjin”) which itself does not amount to any crime within
the Statute of the ICTY.[136] However, the Haradinaj
Indictment clearly alleges that the joint criminal enterprise involved the
commission of crimes such as intimidation, abduction, imprisonment, beating,
torture and murder of targeted civilians in violation of Articles 3 and 5 of
the ICTY Statute.
79.
Furthermore,
the Appeals Chamber notes that the Rome Statute of the International Criminal
Court (“Rome Statute” and “ICC,” respectively) does not require that the joint
criminal enterprise has a common purpose that amounts to a crime within the ICC’s jurisdiction. Indeed, the Rome Statute
departs altogether from the use of the phrase “amounts to” and instead requires
that the “criminal activity or criminal purpose … involves the commission of a
crime within the jurisdiction of the Court.”[137]
This formulation reflects the consensus reached by all of the States
negotiating the Statute of the ICC at the Rome Conference, and therefore is a
valuable indication of the views of States and the international community
generally on the question of what constitutes a common purpose.
80.
In
view of the foregoing, the Appeals Chamber concludes that the requirement that
the common plan, design or purpose of a joint criminal enterprise is inherently
criminal means that it must either have as its objective a crime within the
Statute, or contemplate crimes within the Statute as the means of achieving its
objective.
81.
Turning
to the present Indictment, in order to determine whether the Prosecution
properly pleaded a joint criminal enterprise, the Indictment should be read as
a whole.[138]
In particular, the most relevant paragraphs of the Indictment to the pleading
of JCE are paragraphs 33-35, which state:
“33. The AFRC, including
34. The joint criminal enterprise included gaining and exercising
control over the population of
35.
82.
The
ultimate objective alleged in paragraph 33 of the Indictment, namely: to “take
any actions necessary to gain and exercise political power and control over the
territory of Sierra Leone, in particular the diamond mining areas,”[140]
may not of itself amount to a crime within the Statute of the Special Court,
nonetheless, paragraph 33 of the Indictment read together with paragraphs 34
and 35 demonstrates the Prosecution’s allegation that the parties to the common
enterprise shared a common plan and design to achieve the objective by conduct
constituting crimes within the Statute.
83.
Paragraph
33 of the Indictment states that the plan was to “take any actions necessary”
to gain territorial control and political power. Paragraph 34 of the Indictment
states that the actions “included”: controlling the population of
84.
The
Appeals Chamber holds that the common purpose of the joint criminal enterprise
was not defectively pleaded. Although the objective of gaining and exercising
political power and control over the
85.
Several
other issues arose in the context of JCE for which the Appeals Chamber wishes
to express itself. The Trial Chamber erred in concluding that the Prosecution
could not plead the basic and extended forms of joint criminal enterprise
liability in the alternative on the grounds that the two forms, as pleaded,
logically exclude each other.[144]
Pleading the basic and extended forms of JCE in the alternative is now a
well-established practice in the international criminal tribunals.[145] The Trial Chamber
erred in finding that the Indictment failed to specify the period covered by
the JCE.[146]
That
period is that covered by all of the alleged crimes, which in this case is
between
86.
The
Appeals Chamber having concluded that joint criminal enterprise was not
defectively pleaded in the Indictment, need not
address the Trial Chamber’s finding that the Prosecution failed to cure the
defective pleading of JCE.[148]
Similarly, Kanu’s Tenth Ground of Appeal, that the Trial Chamber erred in law
by failing to quash the entire Indictment after finding that joint criminal
enterprise was defectively pleaded, must fail.
87.
The
Appeals Chamber has found that the Trial Chamber erred in law when it concluded
that JCE was not properly pleaded in the Indictment. Consequently, the
Prosecution’s Fourth Ground of Appeal succeeds, however we see no need to make
further factual findings or to remit the case to the Trial Chamber for that
purpose, having regard to the interest of justice.
88.
In
its Sixth Ground of Appeal, the Prosecution challenges the Trial Chamber’s
finding that Count 7 of the Indictment violated the “rule against duplicity”
and prejudiced the rights of the Appellant. Count 7 of the Indictment alleged
that the Accused bore individual criminal responsibility for “sexual slavery
and any other form of sexual violence, a crime against humanity punishable
under Article 2.g of the Statute.”[149]
89.
The
Trial Chamber found that Count 7 violated the
rule against duplicity and dismissed the count in
its entirety.[150]
It noted that the argument that the Count was bad for duplicity, should have
been raised by a Preliminary Motion under Rule 72(B)(ii).
Nonetheless, the Trial Chamber considered that it was “not precluded from
reviewing in the [Trial Judgment] whether shortcomings in the Form of the
Indictment have actually resulted in prejudice to the rights of the Accused.”[151]
The Trial Chamber was satisfied that the Appellant did not delay raising the
objection for tactical advantages, but had merely followed the “Separate and
Concurring Opinion” of Justice Sebutinde to the Rule 98 Decision.[152]
In Justice Sebutinde’s Rule 98 Opinion, she held that Count 7 was duplicitous,
duplex and defective and could “prejudice a fair trial of accused persons if
uncorrected.”[153]
Justice Sebutinde was of the opinion that Count 7 was not incurably defective
(at the Rule 98 stage), and suggested that it could be cured by an amendment
dividing the offences into two separate counts.[154]
However, the Trial Chamber indicated that it was not considering the question
of duplicity and would instead confine itself to considering the prima facie state of the evidence to
establish Count 7.[155]
90.
In
its Judgment, the Trial Chamber revisited Count 7 and endorsed Justice
Sebutinde’s Rule 98 Opinion that the Count offended the rule against duplicity.[156]
It adopted her Rule 98 Opinion that Article 2.g of the Statute “encapsulates
five distinct categories of sexual offences . . . each of which is comprised of
separate and distinct elements.”[157]
It held that Count 7 of the Indictment charged the Appellant with two distinct
crimes against humanity in one count, namely “sexual slavery” and “any other
form of sexual violence.”[158]
91.
On
appeal, the Prosecution first argues that the Trial Chamber committed
procedural and legal error by reconsidering earlier interlocutory decisions
concerning defects in the form of the Indictment at the final judgment stage
without first reopening hearings on the issue.[159]
Second, the Prosecution argues that the Trial Chamber committed legal, factual
or procedural error in finding that Count 7 was defectively pleaded.[160]
In the alternative, the Prosecution argues that even if Count 7 was defectively
pleaded, any defects were subsequently cured or did not prejudice the
Appellant.[161]
The Prosecution requests the Appeals Chamber to reverse the Trial Chamber’s
decision and to revise the Trial Judgment to enter convictions against Brima,
Kamara and Kanu under Count 7 for sexual slavery as well as under Count 9 for
the war crime of “Outrages upon Personal Dignity.”[162]
92.
The
issues that arise for determination in this Ground of Appeal are:
(i)
whether
the Trial Chamber erred in reconsidering the question of duplicity without
reopening the issue to the Parties;
(ii)
whether Count 7 violates the rule against
duplicity;
(iii)
if it does, whether the defect has
been cured and whether the Trial Chamber erred in its choice of remedy.
93.
In
respect of the first issue, the Prosecution submits that it was entitled to
proceed on the basis that the form of pleading of Count 7 was not an issue
because the Trial Chamber had settled issues of defects in the form of the
Indictment in earlier interlocutory decisions, none of which challenged the
manner in which the Prosecution pleaded Count 7.[163]
Furthermore, it submits that it is impermissible for an accused to raise a
challenge to the form of the Indictment at the end of a trial.[164]
94.
In
response, Brima and Kamara submit that the Trial Chamber is empowered to
reconsider its earlier decisions approving the Indictment without reopening
hearings because the Prosecution had an opportunity in its closing arguments to
address Count 7 but chose to do so only in a very cursory manner.[165]
They further argue that the Prosecution failed to take advantage of an
opportunity to amend the Indictment pursuant to Rule 50, as suggested by
Justice Sebutinde’s Rule 98 Opinion.[166]
95.
In
respect of the second issue, the Prosecution argues that:
(i)
“[t]he
rule against duplicity, as it exists in national legal systems, does not, and
cannot, apply in the same way in proceedings before international criminal
courts;”[167]
(ii)
a
single count may permissibly charge all violations of a single provision of the
Statute;[168]
(iii)
that
even if sexual slavery and “any other form of sexual violence” constitute
separate crimes, “[t]here was no ambiguity as to the legal characterisation of
what the Accused were charged with, or the material facts underpinning those
charges;”[169]
(iv)
that
while a formal amendment to the Indictment, as suggested in Justice Sebutinde’s
Rule 98 Opinion, would have cured Count 7 by recasting it in two separate
counts, it “would have been of no practical or substantive consequence
whatsoever” because the Defence was in no way prejudiced by the manner in which
Count 7 was pleaded.[170]
96.
In
their respective response briefs, Brima and Kamara argue that Count 7 is
entirely unclear as to what crimes were allegedly committed.[171]
Kanu submits that he was “severely prejudiced in so far as he was not able to
tell precisely which of the two crimes in the Count he should have defended
himself against, and that materially affected the conduct of his defence.”[172]
97.
In
respect of the third issue, the Prosecution submits that the Trial Chamber
erred by failing to consider whether the defective pleading of Count 7 was
subsequently cured by timely, clear, and consistent information.[173]
In the alternative, it argues that even if the Appellant were not given timely,
clear and consistent information, the appropriate remedy, as stated by Justice
Doherty in her Partly Dissenting Opinion[174],
would have been to sever the allegation of “any other form of sexual violence”
from Count 7, leaving only the allegation of sexual slavery.[175]
98.
In
response, Brima and Kamara submit that the Trial Chamber’s power to cure
defects in the Indictment may be used only where the material facts supporting
those charges have not been pleaded with sufficient precision.[176]
They argue that this power simply allows the Prosecution “to introduce material
facts at a later stage in order to give the indictment a sufficient factual
basis, and has no relevance to a legal flaw in the wording of the charges.”[177]
Kanu submits that “the nature of the defect in this instance was such that,
short of amending the Indictment, [it] could not be cured” and that the
disclosures made by the Prosecution subsequent to the filing of the Indictment
actually made his understanding of the charges even less clear.[178]
99.
The
Appeals Chamber is of the opinion that the Prosecution’s argument that the
Trial Chamber reconsidered its prior decision is misconceived. Until its final
judgment, the Trial Chamber did not rule on whether Count 7 was defective, even
though Justice Sebutinde did point out that the Count was duplicitous in her
Rule 98 Opinion.
100.
Objections
relating to defects in the form of the indictment should normally be raised at
the pre-trial stage by way of a preliminary motion.[179]
Where issues of defect in the form of an indictment are raised after the trial,
it is incumbent on the party to show that its preparation of its case was
materially impaired by the defect in the Indictment.
101.
The
rule against duplicity is not about vagueness but about a failure to plead with
specificity the offences charged in the Count.
102.
The
Appeals Chamber agrees with the Trial Chamber that Article 2.g of the Statute
provides for five distinct crimes against humanity, each of which is of a
sexual nature, among which are “sexual slavery” and “any other form of sexual
violence.” “Sexual slavery” requires the exercise of rights of ownership over
the victim, which is not the case for “other forms of sexual violence.”
Consequently, Count 7 of the Indictment, which charges the commission of
“sexual slavery and any other form of sexual violence,” offends the rule
against duplicity by charging two offences in the same count. The dispositive
question, therefore, is not whether the rule was violated, but what are the
consequences. In Bizimungu, the ICTR
Appeals Chamber stated that “[t]he rule against duplicity generally forbids the
charging of two separate offences in a single count, although a single count
may charge different means of committing the same offence.”[180]
In Naletilić & Martinović the
ICTY Trial Chamber noted that common law jurisdictions developed the rule
against duplicity in order to ensure precision and certainty in charging.[181]
103.
The
Appeals Chamber holds that the rule against duplicity applies to international
criminal tribunals such that the charging of two separate offences in a single
count renders the count defective, although a single count may charge different
means of committing the same offence. Accordingly,
Count 7 of the Indictment, which charges the commission of “sexual slavery and
any other form of sexual violence,” violates the rule against duplicity.
104.
The
Prosecution urges that upon finding defect in the form of the Indictment, the
Appeals Chamber should examine whether the Appellants were materially impaired
in the preparation of their defence.
105.
Upon
its finding that Count 7 violated the rule against duplicity,
the Trial Chamber dismissed the count in
its entirety. The Trial Chamber’s choice of remedy was premised on its finding
that any proceedings on the basis of a duplicitous count would render the trial
unfair to the Appellants.
106.
The
duplicitous pleading of Count 7 placed the Appellants in the position of having
to defend two crimes in the same count. The residual nature of the crime of
“any other form of sexual violence” requires clarification of the conduct the
Prosecution would rely upon to prove the offence.
107.
A
review of case law on this issue reveals that Courts typically quashed
convictions entered on duplicitous counts.[182]
According to other case law, a duplicitous count does not necessarily require
the conviction to be quashed.[183]
Courts have used other remedies which vary, depending on the particular harm to
be avoided and the stage at which the threatened harm arises. Some Courts have
held that an accused person who has been indicted on the basis of a duplicitous
count may nonetheless be properly prosecuted and convicted if either the
Prosecutor elects which of the charges in the offending Count he will proceed
with, or the Court instructs the jury to agree as to which of the distinct
offences the defendant actually committed.[184]
108.
In
light of the foregoing, the Appeals Chamber considers that the remedies
available to the Trial Chamber included:
(i)
quashing
the count;
(ii)
ordering
that the Indictment be amended;
(iii)
directing
the Prosecution to elect to proceed on the basis of one of the two offences in
the duplicitous count;
(iv)
upon
a review of the entire case, determining which of the two offences charged in
the count the Appellant had defended fully, having regard to the manner in
which the defence case had been conducted;[185]
and
(v)
refusing to consider evidence
of one of the two charges so as to eliminate the duplicity of Count 7.[186]
Each case is to be considered on
its own merits.
109.
In
the instant case, from the evidence accepted by the Trial Chamber and the
findings it had made, it should have chosen the option to proceed on the basis that the
offence of sexual slavery had been properly charged in Count 7, return
appropriate verdict on that Count in respect of the crime of sexual slavery and
struck out the charge of “any other form of sexual violence.”
110.
Although
the Trial Chamber had not chosen that option, no miscarriage of justice has
resulted therefrom. It is not necessary for the Appeals Chamber to substitute a
conviction for sexual slavery as the Trial Chamber relied upon the evidence of
sexual slavery to enter convictions for Count 9 which charged the offence of
“outrages upon personal dignity.”
111.
In
his Second Ground of Appeal, Kanu alleges that the Trial Chamber erred in law
in finding him guilty, under Article 6(1) of the Statute of committing three
crimes in
112.
Kanu
submits that the Trial Chamber ought to have dismissed all charges that alleged
his personal commission after it established that those counts of the
Indictment were defective.[191]
In support of this submission he argues that in his Pre-Defence Motion he
raised several challenges to the validity of the Indictment including lack of
specificity regarding different forms of individual criminal responsibility and
lack of specificity regarding various Counts.[192]
He further argues that the Trial Chamber erred in law, in finding that his
failure to object to evidence led by the Prosecution, during the course of the
trial automatically amounted to a waiver.[193]
Such evidence, Kanu argues, could have been relevant for purposes other than
establishing individual liability.[194]
Thus, according to Kanu, the Trial Chamber ought not to have concluded that his
failure to object amounted to waiver “without firstly satisfying itself that
the failure by the Defence to challenge the extraneous evidence was a
deliberate defence tactic, in which case the Defence would have been held to
have taken a gamble to its detriment.”[195]
113.
In
response, the Prosecution submitted that contrary to Kanu’s claims, Kanu had
not previously challenged the manner in which the Indictment pleaded crimes
that alleged his personal commission.[196]
Further, in instances where evidence was adduced that tended to show that Kanu
personally committed specific crimes, the Prosecution contends that it was
clear to Kanu that such evidence would be relied upon to establish his
individual responsibility for “committing” crimes.[197]
The Prosecution finally submits that in any event, it is Kanu who bears the
burden of showing that he was prejudiced by the Trial Chamber’s approach and
that he has failed to discharge this burden.[198]
114.
Whether
or not the Appellant raised a timely objection at trial will affect the
question on appeal whether he was in fact prejudiced by the defective
Indictment. Perusing the Record on Appeal and Kanu’s “Preliminary Motion On Defects In The Indictment,” it is clear that Kanu did not
previously complain that the Indictment was defective in respect of his
personal commission of the criminal acts alleged. This, therefore being the
first time Kanu has raised this complaint, he must show that he was prejudiced.
115.
The
Appeals Chamber finds no merit in Kanu’s Second Ground of Appeal and finds that
he has manifestly failed in discharging this burden. Neither in his Appeal
Brief nor during oral argument did he say that he had no notice of the crimes
he was alleged to have personally committed. Further, he neither demonstrated
that he was prejudiced, nor that the preparation of his defence was materially
impaired by the defect in the Indictment. On the contrary, counsel for Kanu
cross-examined witnesses as to specific incidents, and when asked during the
appeal hearing why no objection was raised when evidence was being led in
respect of the aforementioned crimes, he replied that it was “a question of
strategy” at trial.[199]
116.
The Appeals Chamber
accordingly rejects Kanu’s Second Ground.
117.
Under
the Ninth Ground of Appeal, Brima submits that the Trial Chamber committed an
error of fact or law by resolving doubts in the evidence in favour of the
Prosecution.[200]
In support of this Ground, Brima raises two main arguments. First,
that the Trial Chamber failed to address discrepancies between the
evidence of witness TF1-184 and pre-trial statements he gave to the
Prosecution.[201]
Second, that other Prosecution witnesses including TF1-334, TF1-167, TF1-184,
had incentives to lie and gave conflicting, contradictory or otherwise
inconsistent evidence about certain events.[202]
118.
In
response, the Prosecution submits that Brima’s arguments are vague and
imprecise.[203]
In particular, it argues that Brima failed to state with precision the
reasonable doubt that was resolved in favour of the Prosecution, and how such a
doubt was resolved in favour of the Prosecution.[204]
119.
The
thrust of this Ground of Appeal is that it challenges the Trial Chamber’s
evaluation of the evidence and its findings of fact. Brima has not advanced any
arguments in support of his contention that the Trial Chamber erred in law and
fact by resolving any reasonable doubt in favour of the Prosecution. His
general allegation that witnesses had a motive to lie and that their evidence
was inconsistent or contradictory, does not refer to any particular instance of
error in the Trial Chamber’s analysis of the evidence. On the contrary, the
judgment shows that the Trial Chamber carefully considered all the evidence
before it, assessed the credibility of the prosecution witnesses including the
fact that their evidence was not discredited during cross-examination, and
concluded that the witnesses were credible and their evidence reliable.[205]
Brima has not demonstrated any error in the Trial Chamber’s assessment of the
evidence of these witnesses.
120.
With
respect to the alleged inconsistency between the prior statement and trial
testimony of witness TF1-184, the Appeals Chamber reiterates that this is
clearly a matter for the Trial Chamber’s evaluation. The mere existence of
inconsistencies in the testimony of a witness does not undermine the witness’s credibility.
The Trial Chamber has broad discretion to determine the weight to be given to
discrepancies between a witness’s testimony and his prior statements. The
Appeals Chamber will normally uphold a Trial Chamber’s findings on issues of
credibility, including its resolution of inconsistent evidence and will only
find that an error of fact occurred when it determines that no reasonable
tribunal could have made the impugned finding.
121.
The
same reasoning applies to Brima’s submission that there were discrepancies
between the testimonies of witnesses TF1-334 and TF1-167 relating to events in
Karina.[206]
The Appeals Chamber reiterates that it is for the Trial Chamber to determine
whether discrepancies discredit a witness’s testimony. When faced with
competing versions of events, it is the prerogative of the Trial Chamber to
determine which one is more credible.[207]
In its consideration of witness TF1-184’s evidence the Trial Chamber stated
that:
“although
the evidence of the witness was unclear at times, in its cross-examination of
the witness the Defence raised no significant
inconsistencies between his evidence in chief and his prior statement to
the Prosecution. In addition, the Trial Chamber finds that the witness was not
shaken on cross-examination and was generally corroborated by other witnesses.”[208]
Brima has not demonstrated that
the Trial Chamber either committed an error or acted unreasonably in making the
above finding.
122.
For
the foregoing reasons, the Appeals Chamber dismisses Brima’s Ninth Ground of
Appeal.
123.
Under
his tenth and eleventh Grounds of Appeal, Brima alleges that the Trial Chamber
failed to consider his testimony of the rivalry that existed between himself
and Prosecution witness TF1-334 and that this occasioned a miscarriage of
justice. Similarly, he submits that out of a total of 146 prosecution and
defence witnesses called to testify at the trial, the Trial Chamber
disproportionately relied on the evidence of two witnesses namely TF1-334 and
TF1-167, and that this occasioned a further miscarriage of justice.
124.
In
his Appeal Brief filed on
125.
Kamara
challenges the credibility of Prosecution witnesses TF1-334, TF1-167, TF1-184
and TF1-153 and submits that these witnesses were co-perpetrators of the crimes
for which the Appellants were convicted, and therefore the Trial Chamber ought
to have approached their evidence with particular caution. In addition, he
submits that in return for their testimony before the Trial Chamber, witnesses
TF1-334, TF1-167 and TF1-184 received preferential treatment while in detention
at
126.
The
Prosecution responds that the Trial Chamber correctly instructed itself on the
appropriate legal standards applicable to accomplice evidence.[210]
In response to the submission that the Trial Chamber had relied exclusively on
certain witnesses, the Prosecution submits that the Trial Chamber had not
violated the principle enunciated by the ICTY Appeals Chamber in Kupreškić et al. that it must convict in light of the
whole trial record.[211]
It submits further that the Trial Chamber did address the alleged discrepancies
in the testimonies of TF1-334 and TF1-167, and found some to be significant and
others not to be so. In its view, Kamara had not established any error in the
Trial Chamber’s assessment of the credibility of the witnesses in question.[212]
127.
The
Trial Chamber in paragraph 125 of its Judgment states that “none of these
Prosecution witnesses has been charged with any crimes and their evidence
cannot, therefore, be described as ‘accomplice evidence’.”[213]
The jurisprudence of the international criminal tribunals demonstrates that a
witness facing criminal charges based on the same allegations as the accused
may be considered an accomplice under the law. However, there is no requirement
that in order to qualify as an accomplice, a witness must have been charged
with a specific offence. The Trial Chamber, therefore, erred in finding that
the witnesses of the Prosecution were not accomplices simply because they were
not charged with any criminal offence.
128.
The
next issue for the Appeals Chamber’s determination is whether the Trial
Chamber’s error invalidated its decision. If after evaluation of evidence of an
accomplice the Trial Chamber comes to the conclusion that the witness is
nonetheless credible and his evidence reliable, the Trial Chamber can rely on
it to enter a conviction. The Appeals Chamber is of the opinion that in
assessing the reliability of accomplice evidence, the main consideration for
the Trial Chamber should be whether or not the accomplice has an ulterior
motive to testify as he did.
129.
Whilst
it is safe for a Trial Chamber to look for corroboration in such circumstances,
it may convict on the basis of the evidence of a single witness, even an
accomplice, provided such evidence is viewed with caution. In considering the
credibility of certain Prosecution witnesses, the Trial Chamber noted that:
“The Defence calls into issue the
credibility of certain Prosecution witnesses because these individuals have
allegedly been implicated in crimes under the jurisdiction of the court, or in
domestic crimes, or that they were informants to the police, or admitted taking
drugs. The Brima Defence specifically alleges that Witness George Johnson
killed Brima’s brother and that this was reason enough for the witness to
“attempt to fabricate” evidence against the accused. A witness with a self-interest to serve may seek to inculpate others and
exculpate himself, but it does not follow that such a witness is incapable of
telling the truth. Hence, the mere suggestion that a witness might be
implicated in the commission of crimes is insufficient for the Trial Chamber to
discard that witness’s testimony.” [214]
130.
With
respect to the specific allegation that certain witnesses might have been
induced to testify against the Appellant, the Trial Chamber held that:
“The Trial Chamber is satisfied
that these payments have been made in a transparent way and in accordance with
the applicable Practice Direction. Allegations to the contrary are therefore
without merit… Accordingly, the Trial Chamber has not given undue weight to
these alleged ‘incentives’ when assessing the credibility of the witnesses in
question.”[215]
131.
The
Appeals Chamber is of the opinion that even though the Trial Chamber did not
say that prosecution witnesses TF1-334, TF1-184 and TF1-167 (George Johnson)
were accomplices, the Trial Chamber was mindful of Kamara’s allegations that
these witnesses may have been involved in criminal conduct or otherwise have reason to give false testimony.
132.
For
example, in addressing the issue of the credibility of witness TF1-334, the
Trial Chamber noted that “[t]he witness revealed that he had sought and
received an assurance from the Office of the Prosecutor that he would not be
prosecuted for any crimes he had committed.”[216]
The Trial Chamber concluded, however, that he was a credible and reliable
witness, that his evidence was consistent, that it was corroborated by the
evidence of other witnesses, and that any discrepancies were minor.[217]
133.
Similarly,
the Trial Chamber noted that witness TF1-184 “was one of
134.
In
effect, the Trial Chamber carried out a detailed and careful analysis of the
evidence of all the aforementioned witnesses[222]
and looked for corroboration.[223]
The Appeals Chamber concludes that even though the Trial Chamber erred in not
characterising the evidence of witnesses TF1-334, TF1-184 and TF1-167 as
accomplice evidence, basing its decision on the fact that they had not been
indicted for their alleged role in the crimes charged against the Appellant,[224]
it did, in fact, carefully consider the evidence of each witness and assessed
their credibility in light of the totality of the evidence before it.
135.
For
these reasons, the Appeals Chamber has come to the conclusion that neither
Kamara nor Brima has shown that this error invalidates the judgment so as to
warrant its intervention.
136.
Therefore
Ground Ten of Brima’s Appeal and Ground Eight of Kamara’s Appeal are untenable.
137.
Kamara
submits that there were discrepancies in the evidence of several prosecution
witnesses with respect to events for which the Trial Chamber found him guilty
and submits that the Trial Chamber failed to resolve these inconsistencies or
to give a reasoned decision why it preferred one account over the other.
138.
Kamara
states without giving particulars, that there were significant inconsistencies
in the testimony of Prosecution witness TF1-153. The Appeals Chamber reiterates
that an appellant must make his submissions clearly and logically, and must
support allegations of error with precise references to the trial judgment or
other material that support his appeal. The Appeals Chamber will not consider
submissions which are obscure, contradictory, vague or
suffer from formal or other deficiencies.[225]
139.
As
Kamara has not referred to any particular instance of error in the Trial
Chamber’s evaluation of the witness’ evidence or referred to any error in the
Trial Chamber’s evaluation of evidence, this argument fails.
140.
With
respect to the Trial Chamber’s finding that Kamara bears individual criminal
responsibility under Article 6(3) for the actions of AFRC troops in Kono
District, he argues that there were contradictions in the evidence of Prosecution
witnesses TF1-334 and TF1-167, in that whilst witness TF1-334 gave evidence
that Kamara was the one who promoted Savage, the evidence of witness TF1-167
(George Johnson) was to the effect that Savage was appointed to the position of
Lieutenant by Denis Mingo (a.k.a.
Superman), a senior RUF Commander.
141.
The
Trial Chamber’s conclusion that Kamara exercised effective control over Savage
was based on its consideration of all the evidence before it, including
evidence that Savage was subordinate to Kamara and reported to him, that Kamara
supervised the activities of Savage, and that Kamara was present in Tombodu at
the time when that town was under Savage’s control.[226]
As such, the Trial Chamber’s finding that Kamara bears individual criminal
responsibility under Article 6(3) for the crimes committed by Savage was not
based solely on evidence of who appointed or promoted Savage. Kamara has not
demonstrated that the alleged discrepancy in the evidence of Prosecution
witnesses TF1-334 and TF1-167 about who appointed or promoted Savage affected
the Trial Chamber’s finding that Kamara bears individual criminal
responsibility under Article 6(3) for the crimes committed in Kono District.
142.
Kamara
also submits that the Trial Chamber’s finding that he was liable under Article 6(1)
for ordering and under Article 6(3) as a superior for the killing of five young
girls in Karina, was based on inconsistent testimony of witnesses TF1-334 and
TF1-167.[227]
Witness TF1-334 testified that he, Bazzy (i.e.
Kamara), and Bazzy’s Chief Security Officer (“CSO”) locked five young girls
inside a house in Karina and burnt them alive.[228]
Witness TF1-167 testified that while in Karina with Kamara and Eddie Williams (a.k.a. “MAF”), Eddie Williams went into
the house, wrapped people in carpets of the house, drew fuel from a Mercedes
Benz and set the house on fire.[229]
143.
With
respect to the issue of the alleged discrepancy in the evidence of witnesses
TF1-334 and TF1-167, the Trial Chamber found in its Judgment:
144.
With
respect to the killings at
“there
are discrepancies between the three accounts. Nonetheless, this does not
mandate the dismissal of the entire testimony of each witness in relation to
the attack on
The Appeals Chamber agrees with
this conclusion.
145.
Kamara
also argues that the Trial Chamber erred in relying “exclusively” on
Prosecution witnesses TF1-334, TF1-184 and TF1-167[233]
and submits that the Trial Chamber should have assessed the credibility of
these witnesses in light of the entire record of the case and considered
whether there was another reasonable explanation of the evidence other than a
finding of guilt against him.[234]
In Ground Eleven of his Appeal, Brima adopts this aspect of Kamara’s
submissions and further submits that the Trial Chamber erred in relying
disproportionately on two Prosecution witnesses i.e. TF1-334 and TF1-167.
146.
A
Trial Chamber must look at the totality of the evidence on record in evaluating
the credibility of a witness. A party who alleges on appeal that a Trial Chamber
has made a finding as to the credibility of a witness without considering the
totality of the evidence on record must show clearly that such error occurred.
147.
The
Appeals Chamber opines there is no bar to the Trial Chamber relying on a
limited number of witnesses or even a single witness, provided it took into
consideration all the evidence on the record. Kamara and Brima have not
demonstrated such error on behalf of the Trial Chamber.
148.
Based
on all the reasons given above, the Appeals Chamber has come to the conclusion
that Ground Eight of Kamara’s Appeal as well as Grounds Ten and Eleven of
Brima’s Grounds of Appeal must fail.
149.
In
Ground Three of his Appeal, Kanu alleges that the Trial Chamber erred in law
and fact in its evaluation of the evidence before it. He submits that the Trial
Chamber failed to assess objectively the evidence of Defence witnesses as
against that of the Prosecution witnesses[235]
and generally preferred and gave credit to Defence evidence only “where it
coincided with that of the Prosecution or supported an adverse finding to the
Defence.”[236]
He further submits that the Trial Chamber failed to explain adequately
discrepancies and internal contradictions in the evidence of Prosecution
witnesses especially TF1-334, Gibril Massaquoi and George Johnson, as well as
discrepancies between their different accounts.[237]
150.
The
Prosecution responds that contrary to Kanu’s submissions, the Trial Chamber
properly evaluated the evidence of both Prosecution and Defence witnesses and
“that it did not slavishly accept all the evidence” of the Prosecution
witnesses. The Prosecution further submits that the Trial Chamber did explain
its evaluation of the evidence and provided reasons for accepting or rejecting
the evidence of witnesses.[238]
151.
Kanu’s
Third Ground of Appeal, as in Grounds Ten and Eleven of Brima’s Appeal, and
Ground Eight of Kamara’s Appeal, challenges the Trial Chamber’s evaluation of
the evidence and its findings of fact. Kanu cites several instances in the
Trial Judgment in support of his submission that the Trial Chamber failed to
assess objectively the evidence of Defence witnesses as against that of
Prosecution witnesses.[239]
However, a review of the Judgment indicates that in arriving at its factual
findings and contrary to Kanu’s submissions, the Trial Chamber properly
evaluated the evidence of both Prosecution and Defence witnesses taking the
entire trial record into account.[240]
Furthermore, the Trial Chamber gave the reasons why it preferred or rejected
certain evidence.[241]
152.
Kanu
has not established that the Trial Chamber erred in its evaluation of the
evidence of the witnesses or that its evaluation was unreasonable. His
submission that the Trial Chamber tended to prefer the evidence of Prosecution
witnesses, therefore, lacks merit.
153.
With
respect to Kanu’s submission that the Trial Chamber attached less weight to the
evidence of Defence witnesses because that evidence had not been put to the
Prosecution witnesses in cross-examination, the Appeals Chamber notes that the
Trial Chamber did take into consideration the fact that the Rules of the
Special Court do not oblige a party to put its case to a witness.[242]
The Trial Chamber considered that it would not be in the interests of justice
to set aside the relevant Defence testimony, but rather proceeded to take this
factor into account in assessing the weight to be attached to such evidence.
The Appeals Chamber opines that the Trial Chamber’s approach was in conformity
with the Rules, which give it a discretion to apply
the rules of evidence which best favour a fair determination of the matter
before it.[243]
154.
Kanu
submits that the Trial Chamber failed to examine thoroughly the evidence of
Prosecution witnesses TF1-033, TF1-334 and George Johnson, and to give
sufficient reasons why it proceeded to accept their evidence in spite of
material omissions and inconsistencies in their separate accounts. The Appeals
Chamber reiterates that the Trial Chamber has a discretion
to determine the weight to be given to discrepancies between a witness’
testimony and his prior statements. It is for the Trial Chamber to determine
whether discrepancies discredit a witness’ testimony and, when faced with
competing versions of events, to determine which one is more credible.
155.
With
respect to Kanu’s submissions regarding Prosecution witness George Johnson, the
mere fact that the Trial Chamber found his evidence relating to certain events
to be unreliable does not warrant dismissal of his entire testimony. The same
reasoning applies to the Appellant’s submission regarding Prosecution witness
TF1-033. The Trial Chamber after evaluating that witness’ evidence had
concluded that:
“While the witness appears on
occasion to have exaggerated figures and was unclear on dates, he did not
fabricate events. The Trial Chamber further found the witness truthful at
trial, and is unwilling to conclude that his evidence overall is not credible
or reliable.”[244]
156.
Kanu
also submits that Prosecution witness TF1-033 did not mention the stay of the
AFRC troops in Mansofinia, and that this was a significant omission on the part
of the witness given that Mansofinia was the location where the AFRC troops
restructured and reorganised for the advance to
157.
The
Trial Chamber concluded that the reason for this inconsistency was that witness
TF1-033’s recollection of the location was mistaken, but that nonetheless his
evidence generally corroborated that of witnesses TF1-334 and George Johnson.
Furthermore, the Trial Chamber reasoned that its conclusion was supported by
the fact that witness TF1-033 had also been confused in relation to the
hometown of the Appellant Brima. The Appeals Chamber considers that it was
reasonable for the Trial Chamber to arrive at this conclusion. The evidence of
the three Prosecution witnesses in question i.e. TF1-033, TF1-334 and George
Johnson on the troop restructure generally corroborated each other, and all of
them mentioned a village called “Yarya” as the place at which the AFRC stopped
either on the journey to Mansofinia, or during the advance to Freetown.[247]
The alleged inconsistencies in the witnesses’ accounts were therefore not so
significant as to warrant a different factual finding by the Trial Chamber.
158.
With
respect to the evidence of Prosecution witness Gibril Massaquoi, the Trial
Chamber observed that there were internal discrepancies in his evidence, as
well as discrepancies between his evidence and that of TF1-184 regarding events
at State House.[248]
The Trial Chamber nonetheless concluded that it was
“satisfied
that witnesses Gibril Massaquoi and TF1-184 describe the same incident, as
their accounts are substantially similar and over six years passed between the
events in question and their testimony. It is plausible that the discrepancies
between the witnesses’ accounts are explicable on the basis that the witnesses
arrived at State House at a different point in time and described the incident
from their various perspectives.”[249]
159.
The
Appeals Chamber is of the opinion that the Trial Chamber gave a reasonable
explanation for the discrepancies in the witness’s evidence. Kanu has not
demonstrated any reason why the Appeals Chamber should interfere with the Trial
Chamber’s finding.
160.
For
the foregoing reasons, Kanu’s Third Ground of Appeal fails.
161.
Under
his Fourth Ground of Appeal, Kanu challenges the Trial Chamber’s evaluation of
the credibility of Prosecution witnesses TF1-334, TF1-167 (George Johnson),
TF1-184, TF1-153 and Gibril Massaquoi. He makes submissions similar to those
made by Kamara in Ground Eight of his Appeal and submits that because these
witnesses were co-perpetrators of the crimes for which the Appellants were
convicted, the Trial Chamber ought to have viewed their evidence with particular
caution as has been the practice in the international tribunals, especially
where such evidence was uncorroborated. In particular, he submits that the
Trial Chamber erred in law by failing to classify these witnesses as
accomplices based on the fact that they had not been charged with any crimes.[250]
162.
In
response, the Prosecution adopts the submissions it made in response to Brima’s
Tenth and Kamara’s Eighth Grounds of Appeal, insofar as they relate to the
evidence of accomplice witnesses.[251]
The Prosecution maintains that the Trial Chamber had correctly instructed
itself on the appropriate legal standards applicable to accomplice evidence.[252]
163.
In
view of the conclusion the Appeals Chamber came to on similar submissions made
in respect of Ground Eight of Kamara’s Appeal as well as Grounds Ten and Eleven
of Brima’s Appeal, it is not necessary to discuss these submissions afresh.
164.
It
is sufficient to state that for the reasons already given in that conclusion,
this Ground must also fail.
165.
In
its First Ground of Appeal, the Prosecution alleges the Trial Chamber made
numerous legal and factual errors in failing to find the Appellants
individually responsible, pursuant to Article 6(1) of the Statute for planning,
instigating, ordering, or otherwise aiding and abetting, and pursuant to
Article 6(3), for all crimes committed in Bombali District, Freetown and other
parts of the Western Area during the so-called “Bombali-Freetown Campaign.”[253]
It submits that the “Bombali-Freetown Campaign” constituted a “single planned
and systematic campaign” that originated at a planning meeting in Koinadugu
District in April or May 1998 and continued in
166.
The
Prosecution alleges the Trial Chamber erred in law in that:
167.
The
Third Ground of the Prosecution’s Appeal alleges both a legal and a factual
error on the part of the Trial Chamber in finding that the Prosecution did not
adduce any evidence and consequently did not prove that Kamara was individually
responsible under Article 6(1) of the Statute for any of the crimes committed
in Port Loko District. Most of the arguments presented by the Prosecution
concern the Trial Chamber’s factual findings in respect of the following crimes
that were committed in Port Loko District (hereinafter the “Port Loko District
crimes”):
(i)
Unlawful
killings in Manaarma for which Kamara was found individually responsible under
Article 6(3) of the Statute;
(ii)
Sexual
slavery; and
(iii)
Acts
of terror and collective punishment in respect of (i) and (ii) above.
168.
Grounds
One and Three of the Prosecution’s Grounds of Appeal address certain legal and
factual issues, namely:
169.
However,
as the Appellants have been convicted and sentenced to terms of imprisonment of
fifty (50) years and forty-five (45) years for crimes committed under Article 6(1)
or Article 6(3) of the Statute in Bombali District and in the Western Area, the
Appeals Chamber is of the opinion, taking all the circumstances into
consideration, particularly having regard to the length of the sentences imposed,
that it becomes an academic exercise and also pointless to adjudicate further
on minute details raised in Grounds One and Three of the Prosecution’s Appeal.
170.
The
Trial Chamber found all three Appellants guilty of the crime “acts of terrorism”
(Count 1 of the Indictment)[255]
and guilty of the crime ‘collective punishment’ (Count 2 of the Indictment).[256]
The evidence relied upon by the Trial Chamber in convicting the Appellants
excluded evidence relating to the crimes of recruitment of child soldiers;
abductions and forced labour and sexual slavery (the three “enslavement
crimes”). According to the Trial Chamber, evidence of the three enslavement
crimes did not in the particular factual context of the conflict in
171.
In
its Fifth Ground of Appeal the Prosecution complains in substance
that in the particular factual context of the case the Trial Chamber erred in
law in holding that the three enslavement crimes were not acts of terrorism and
also were not collective punishments.
172.
The
Appeals Chamber is of the opinion that the Prosecution’s attempt to search for
further acts of terrorism by adding the three enslavement crimes to this list
is an unnecessary exercise since the Appellants have already been convicted of
acts of terrorism and an adequate sentence has been imposed.
173.
The
Appeals Chamber further finds the Prosecution’s submissions regarding the crime
of collective punishments to be imprecise and without merit. The Prosecution
failed to demonstrate adequately how the Trial Chamber either erred in law,
invalidating a decision or erred in fact, occasioning a miscarriage of justice.
174.
The Appeals Chamber exercises its discretion not to entertain the
Prosecution’s Fifth Ground of Appeal and therefore it is dismissed in its
entirety.
175.
Under
its Seventh Ground of Appeal, the Prosecution challenges the Trial Chamber’s
dismissal of Count 8 of the Indictment, which charged Brima, Kamara and Kanu with
the crime of “Other Inhumane Acts” (forced marriage), punishable under Article 2.i
of the Statute.
176.
In
dismissing Count 8 for redundancy, the Trial Chamber found that Article 2.i of
the Statute (“Other Inhumane Acts”) must be restrictively interpreted to
exclude crimes of a sexual nature, because Article 2.g of the Statute, which
encompasses “[r]ape, sexual slavery, enforced prostitution, forced pregnancy
and any other form of sexual violence,”
exhaustively enumerates sexual crimes.[258]
The Trial Chamber found that the Prosecution did not adduce any evidence that
forced marriage was a non-sexual crime; that the Prosecution evidence with
respect to forced marriages was completely subsumed in the crime of sexual
slavery; and that there is no lacuna in the law which would necessitate a
separate crime of forced marriage as an “Other Inhumane Act.”[259]
The Trial Chamber also found that use of the term “wife” by the perpetrator
signified an intention to exercise ownership over the victim rather than to
assume a marital or quasi-marital status with the victim.[260]
177.
The
Prosecution argues that a majority of the Trial Chamber (Justice Doherty
dissenting) made three distinct errors of law and fact by finding that:
178.
The
Prosecution also asserts that forced marriage is distinct from the crime
against humanity of sexual slavery as forced marriage “consists of words or other
conduct intended to confer a status of marriage by force or threat of force . .
. with the intention of conferring the status of marriage.”[263]
Further, the Prosecution contends that forced marriage essentially involves a
“forced conjugal association by the perpetrator over the victim” and is not
predominantly sexual as victims of forced marriage need not necessarily be
subject to non-consensual sex.[264]
It further argues that the imposition of a forced conjugal association is as
grave as the other crimes against humanity such as imprisonment, causing great
suffering to its victims.[265]
Therefore, the Prosecution contends that forced marriage amounts to an “Other Inhumane
Act” under Article 2.i of the Statute and requests that the Appeals Chamber enter
convictions for all three Appellants under Count 8 for “Other Inhumane Acts.”
179.
Brima
and Kamara argue that the Trial Chamber was correct in dismissing Count 8 for
redundancy as the “alleged crimes of forced marriage” are subsumed in the crime
of sexual slavery.[266]
Furthermore, they assert that even if the Trial Chamber’s finding in this
regard is incorrect, any alleged crime of forced marriage should have been
charged under Article 2.g of the Statute as “any other form of sexual
violence,” rather than as “Other Inhumane Acts” under Article 2.i of the
Statute.[267]
In support of this argument, Brima and Kanu submit that the category of “Other
Inhumane Acts” under Article 2.i of the Statute only applies to acts of a
non-sexual nature.[268]
In addition to the specific crimes of a sexual nature listed in Article 2.g,
that provision has an in-built residual category, “any other form of sexual
violence” which includes crimes such as forced marriage.[269]
Thus, Article 2.g of the Statute is broad and intended to cover not only crimes
which are sexual in a physical sense (such as rape), but also gender-based
crimes such as forced marriage. Accordingly, Brima and Kamara urge the Appeals
Chamber to dismiss this Ground of the Prosecution’s Appeal.
180.
Kanu
agrees with the Prosecution’s submission that the Trial Chamber erred in
finding that the offence of “Other Inhumane Acts” must be restrictively
interpreted and limited to non-sexual crimes.[270]
However, Kanu adds that this legal error does not invalidate the Trial
Chamber’s dismissal of Count 8 because the evidence led by the Prosecution to
prove forced marriage failed to establish any conduct going beyond the elements
of sexual slavery.[271]
181.
A
preliminary point worthy of note is that the Prosecution may have misled the
Trial Chamber by the manner in which forced marriage appeared to have been
classified in the Indictment. The Indictment classifies Count 8 “Other Inhumane
Acts” along with Counts 6, 7 and 9 under the heading “Sexual Violence.” Under
this heading in paragraphs 52 to 57, the Indictment alleges acts of forced
marriages. This categorisation of forced marriages explain,
but does not justify, the classification by the Trial Chamber of forced
marriage as “sexual violence.” Notwithstanding the manner in which the Prosecution
had classified “Forced Marriage” in the Indictment and the submissions made by
the Prosecution on this appeal which is inconsistent with such classification,
the Appeals Chamber will consider the submissions made as an issue of general
importance that may enrich the jurisprudence of international criminal law.
182.
The
first issue for the Appeals Chamber’s determination relates to the scope of “Other
Inhumane Acts” under Article 2.i of the Statute. The Trial Chamber concluded
that in light of the exhaustive categorisation of sexual crimes under Article
2.g, the offence of “Other Inhumane Acts” must be restrictively interpreted so
as to exclude offences of a sexual nature.[272]
The Appeals Chamber considers that it is implicit in the Trial Chamber’s
finding that it considered forced marriage as a sexual crime.
183.
In
order to assess the correctness of the Trial Chamber’s finding, regard must be
given to the objective of the prohibition of “Other Inhumane Acts” in
international criminal law. First introduced under Article 6.c of the Nuremberg
Charter, the crime of “Other Inhumane Acts” is intended to be a residual
provision so as to punish criminal acts not specifically recognised as crimes
against humanity, but which, in context, are of comparable gravity to the
listed crimes against humanity.[273]
It is therefore inclusive in nature, intended to avoid unduly restricting the
Statute’s application to crimes against humanity.[274]
The prohibition against “Other Inhumane Acts” is now included in a large number
of international legal instruments and forms part of customary international
law.[275]
184.
The
jurisprudence of the international tribunals shows that a wide range of
criminal acts, including sexual crimes, have been recognised as “Other Inhumane
Acts.” These include forcible transfer,[276]
sexual and physical violence perpetrated upon dead human bodies,[277]
other serious physical and mental injury,[278]
forced undressing of women and marching them in public,[279]
forcing women to perform exercises naked,[280]
and forced disappearance, beatings, torture, sexual violence, humiliation,
harassment, psychological abuse, and confinement in inhumane conditions.[281]
Case law at these tribunals further demonstrates that this category has been
used to punish a series of violent acts that may vary depending upon the context.[282]
In effect, the determination of whether an alleged act qualifies as an “Other Inhumane
Act” must be made on a case-by-case basis taking into account the nature of the
alleged act or omission, the context in which it took place, the personal circumstances
of the victims including age, sex, health, and the physical, mental and moral
effects of the perpetrator’s conduct upon the victims.[283]
185.
The
Trial Chamber therefore erred in law by finding that “Other Inhumane Acts”
under Article 2.i must be restrictively interpreted. A tribunal must take care
not to adopt too restrictive an interpretation of the prohibition against “Other
Inhumane Acts” which, as stated above, was intended to be a residual provision.
At the same time, care must be taken not to make it too embracing as to make a
surplusage of what has been expressly provided for, or to render the crime
nebulous and incapable of concrete ascertainment. An over-broad interpretation
will certainly infringe the rule requiring specificity of criminal prohibitions.
186.
Furthermore,
the Appeals Chamber sees no reason why the so-called “exhaustive” listing of
sexual crimes under Article 2.g of the Statute should foreclose the possibility
of charging as “Other Inhumane Acts” crimes which may among others have a sexual or gender component.[284]
As an ICTY Trial Chamber has recognised, “[h]owever much care [was] taken in
establishing a list of all the various forms of infliction, one would never be
able to catch up with the imagination of future torturers who wish to satisfy
their bestial instincts; and the more specific and complete a list tries to be,
the more restrictive it becomes.”[285]
The Trial Chamber therefore erred in finding that Article 2.i of the Statute
excludes sexual crimes.
187.
The
Appeals Chamber recalls the Trial Chamber’s findings that the evidence adduced
by the Prosecution did not establish the elements of a non-sexual offence of
forced marriage independent of the crime of sexual slavery under Article 2.g of
the Statute;[286]
and that the evidence is completely of the crime of sexual slavery, leaving no
lacuna in the law that would necessitate a separate crime of forced marriage as
an “Other Inhumane Act.”[287]
188.
The
Trial Chamber defined sexual slavery as the perpetrator’s exercising any or all
of the powers attaching to the right of ownership over one or more persons by
imposing on them a deprivation of liberty, and causing them to engage in one or
more acts of a sexual nature.[288]
In finding that the evidence of forced marriage was completely of the crime of
sexual slavery, the Trial Chamber found that the relationship of the
perpetrators to their “wives” was one of ownership, and that the use of the
term “wife” was indicative of the perpetrator’s intent to exercise ownership
rights over the victim.[289]
Implicitly, the Trial Chamber found that evidence of forced marriage was
predominantly sexual in nature.
189.
According
to the Prosecution, the element that distinguishes forced marriage from other
forms of sexual crimes is a “forced conjugal association by the perpetrator
over the victim. It represents forcing a person into the appearance, the veneer
of a conduct (i.e. marriage), by
threat, physical assault or other coercion.”[290]
The Prosecution adds that while acts of forced marriage may in certain
circumstances amount to sexual slavery, in practice they do not always involve
the victim being subjected to non-consensual sex or even forced domestic
labour.[291]
Therefore, the Prosecution contends that forced marriage is not a sexual crime.
190.
The
trial record contains ample evidence that the perpetrators of forced marriages
intended to impose a forced conjugal association upon the victims rather than
exercise an ownership interest and that forced marriage is not predominantly a
sexual crime. There is substantial evidence in the Trial Judgment to establish
that throughout the conflict in
191.
The
Trial Chamber findings also demonstrate that these forced conjugal associations
were often organised and supervised by members of the AFRC or civilians
assigned by them to such tasks.[298]
A “wife” was exclusive to a rebel “husband,” and any transgression of this
exclusivity such as unfaithfulness, was severely punished.[299]
A “wife” who did not perform the conjugal duties demanded of her was deemed
disloyal and could face serious punishment under the AFRC disciplinary system,
including beating and possibly death.[300]
192.
In
addition to the Trial Chamber’s findings, other evidence in the trial record
shows that the perpetrators intended to impose a forced conjugal association
rather than exercise mere ownership over civilian women and girls. In
particular, the Appeals Chamber notes the evidence and report of the
Prosecution expert Mrs. Zainab Bangura which demonstrates the physical and
psychological suffering to which victims of forced marriage were subjected
during the civil war in
“the
most devastating effect on women of the war was the phenomenon called ‘bush
wife’, rebel wife or jungle wife. This was a phenomenon adopted by rebels
whereby young girls or women were captured or abducted and forcibly taken as
wives . . . The use of the term ‘wife’ by the perpetrator was deliberate and
strategic. The word ‘wife’ demonstrated a rebel’s control over a woman. His
psychological manipulations of her feelings rendered her unable to deny him his
wishes… By calling a woman ‘wife’, the man or ‘husband’ openly staked his claim
and she was not allowed to have sex with any other person. If she did, she
would be deemed unfaithful and the penalty was severe beating or death.
‘Bush wives’ were expected to
carry out all the functions of a wife and more . . . [S]he was expected to show
undying loyalty to her husband for his protection and reward him with ‘love and
affection . . . ‘Bush wives’ were constantly sexually abused, physically
battered during and after pregnancies, and psychologically terrorised by their
husbands, who thereby demonstrated their control over their wives. Physically,
most of these girls experienced miscarriages, and received no medical attention
at the time . . . Some now experience diverse medical problems such as severe
stomach pains . . . some have had their uterus removed; menstrual cycles are
irregular; some were infected with sexually transmitted diseases and others
tested HIV positive.”[301]
193.
In
light of all the evidence at trial, Judge Doherty, in her Partly Dissenting
Opinion, expressed the view that forced marriage involves “the imposition, by
threat or physical force arising from the perpetrator’s words or other conduct,
of a forced conjugal association by the perpetrator over the victim.”[302]
She further considered that this crime satisfied the elements of “Other
Inhumane Acts” because victims were subjected to mental trauma by being
labelled as rebel “wives”; further, they were stigmatised and found it
difficult to reintegrate into their communities. According to Judge Doherty,
forced marriage qualifies as an “Other Inhumane Acts” causing mental and moral
suffering, which in the context of the
194.
Furthermore,
the Appeals Chamber also notes that in their respective Concurring and Partly
Dissenting Opinions, both Justice Sebutinde and Justice Doherty make a clear
and convincing distinction between forced marriages in a war context and the
peacetime practice of “arranged marriages” among certain traditional
communities, noting that arranged marriages are not to be equated to or
confused with forced marriage during armed conflict.[304]
Justice Sebutinde goes further to add, correctly in our view, that while
traditionally arranged marriages involving minors violate certain international
human rights norms such as the Convention on the Elimination of all Forms of
Discrimination against Women (CEDAW), forced marriages which involve the
abduction and detention of women and girls and their use for sexual and other
purposes is clearly criminal in nature.[305]
195.
Based
on the evidence on record, the Appeals Chamber finds that no tribunal could
reasonably have found that forced marriage was subsumed in the crime against
humanity of sexual slavery. While forced marriage shares certain elements with
sexual slavery such as non-consensual sex and deprivation of liberty, there are
also distinguishing factors. First, forced marriage involves a perpetrator
compelling a person by force or threat of force, through the words or conduct
of the perpetrator or those associated with him, into a forced conjugal
association with a another person resulting in great suffering, or serious
physical or mental injury on the part of the victim. Second, unlike sexual
slavery, forced marriage implies a relationship of exclusivity between the
“husband” and “wife,” which could lead to disciplinary consequences for breach
of this exclusive arrangement. These distinctions imply that forced marriage is
not predominantly a sexual crime. The Trial Chamber, therefore, erred in
holding that the evidence of forced marriage is subsumed in the elements of
sexual slavery.
196.
In
light of the distinctions between forced marriage and sexual slavery, the
Appeals Chamber finds that in the context of the Sierra Leone conflict, forced
marriage describes a situation in which the perpetrator through his words or
conduct, or those of someone for whose actions he is responsible, compels a
person by force, threat of force, or coercion to serve as a conjugal partner
resulting in severe suffering, or physical, mental or psychological injury to
the victim.
197.
The
Prosecution submits that the crime charged under Count 8 is “Other Inhumane Acts,”
which forms part of customary international law, and therefore, does not
violate the principle of nullum crimen
sine lege.[306]
Therefore, the Prosecution submits that the only question on appeal is whether
forced marriage satisfies the elements of “Other Inhumane Acts.” The
Prosecution argues that forced marriage amounts to an “Other Inhumane Act” and
that the imposition of a forced conjugal association is as grave as the other
crimes against humanity such as imprisonment, causing great suffering to its
victims.[307]
In particular, the Prosecution argues that the mere fact of forcibly requiring
a member of the civilian population to remain in a conjugal association with
one of the participants of a widespread
or systematic attack directed against the civilian population is at least, of
sufficient gravity to make this conduct an “Other Inhumane Act.”[308]
198.
The
Appeals Chamber agrees with the Prosecution that the notion of “Other Inhumane
Acts” contained in Article 2.i of the Statute forms part of customary
international law.[309]
As noted above, it serves as a residual category designed to punish acts or
omissions not specifically listed as crimes against humanity provided these
acts or omissions meet the following requirements:
199.
The
Appeals Chamber finds that the evidence before the Trial Chamber established
that victims of forced marriage endured physical injury by being subjected to
repeated acts of rape and sexual violence, forced labour, corporal punishment,
and deprivation of liberty. Many were psychologically traumatised by being
forced to watch the killing or mutilation of close family members, before
becoming “wives” to those who committed these atrocities and from being
labelled rebel “wives” which resulted in them being ostracised from their
communities. In cases where they became pregnant from the forced marriage, both
they and their children suffered long-term social stigmatisation.
200.
In
assessing the gravity of forced marriage in the
201.
The
Appeals Chamber is also satisfied that in each case, the perpetrators intended
to force a conjugal partnership upon the victims, and were aware that their
conduct would cause serious suffering or physical, mental or psychological
injury to the victims. Considering the systematic and forcible abduction of the
victims of forced marriage, and the prevailing environment of coercion and
intimidation, the Appeals Chamber finds that the perpetrators of these acts
could not have been under any illusion that their conduct was not criminal.
This conclusion is fortified by the fact that the acts described as forced
marriage may have involved the commission of one or more international crimes
such as enslavement, imprisonment, rape, sexual slavery, abduction among
others.
202.
The
Appeals Chamber has carefully given consideration to whether or not it would
enter fresh convictions for “Other Inhumane Acts” (forced marriage). The
Appeals Chamber is fully aware of the Prosecution’s submission that entering
such convictions would reflect the full culpability of the Appellant. The
Appeals Chamber is also aware that the Trial Chamber relied upon the evidence
led in support of sexual slavery and forced marriage to enter convictions
against the Appellants for “Outrages upon Personal Dignity” under Count 9 of
the Indictment. Since “Outrages upon Personal Dignity” and “Other Inhumane
Acts” have materially distinct elements (in the least, the former is a war
crime, and the latter a crime against humanity) there is no bar to entering
cumulative convictions for both offences on the basis of the same facts.
However, in this case the Appeals Chamber is inclined against entering such
cumulative convictions. The Appeals Chamber is convinced that society’s
disapproval of the forceful abduction and use of women and girls as forced
conjugal partners as part of a widespread or systematic attack against the
civilian population, is adequately reflected by recognising that such conduct
is criminal and that it constitutes an “Other Inhumane Act” capable of incurring
individual criminal responsibility in international law.
203.
The
Appeals Chamber therefore grants Ground Seven of the Prosecution’s Appeal.
204.
The
Prosecution argues that the Trial Chamber erred in deciding not to consider
mutilations under Count 11 as well as under Count 10 because considering
mutilations and beatings and ill-treatment under the same Count would have
resulted in a duplicitous charge.[311]
The Prosecution submits that the convictions of the accused for mutilations as
a war crime fail to recognise that acts of mutilation were also crimes against
humanity, as they occurred as part of a widespread or systematic attack against
the civilian population.[312]
The Prosecution further submits that mutilations, and acts of physical violence
other than mutilations, are not separate crimes, but are different ways of
committing the war crime of violence to life, health and physical or mental
well-being of persons, as well as the crime against humanity of “Other Inhumane
Acts.” Therefore, the Prosecution argues that Counts 10 and 11 were not
defectively pleaded because both forms of physical violence may properly be
alleged in both counts without resulting in a duplicitous charge.[313]
205.
As
discussed above, the rule against duplicity prohibits the charging of two
separate offences in the same count.[314]
However, the Appeals Chamber notes that Count 11 charged only the offence of “Other
Inhumane Acts” as a crime against humanity, which was supported by material
facts alleging mutilations as well as beatings and ill-treatment. Thus, Count
11 on its face is not duplicitous. The Appeals Chamber also notes the
distinction between charging conduct and charging offences. Article 2.i is a residual
category which encompasses various forms of conduct. However, it is a single
offence. Therefore, the Appeals Chamber finds that alleging multiple forms of
conduct in the same count was not duplicitous because Count 11 only charged one
offence, namely “Other Inhumane Acts.”[315]
It follows that Count 11 would not have been duplicitous had the Trial Chamber
considered evidence of both mutilations and beatings and ill-treatment.
206.
However,
the Appeals Chamber finds that the Trial Chamber did not err in considering
mutilations only under Count 10. The Appeals Chamber notes that Count 10, which
alleges “violence to life, health and physical or mental well-being of persons,
in particular mutilations,” is clearly supported by the paragraphs alleging
mutilations. The allegations of beatings and ill-treatment could not have been
used to support Count 10. The Indictment would therefore have been much clearer
had the Prosecution limited the factual allegations in support of Count 10 to
mutilations. Furthermore, the Prosecution’s intention to rely on acts of
mutilation in support of Count 11 would have been much clearer had it separated
the facts supporting this Count from those supporting Count 10. Consequently,
the Prosecution’s combination of the material facts that support Counts 10 and
11 created a degree of ambiguity in the Indictment. In light of this ambiguity,
it was within the discretion of the Trial Chamber to consider evidence of
mutilations solely under Count 10. Thus, the Appeals Chamber rejects the
Prosecution’s submission that the Trial Chamber erred in failing to consider
evidence of mutilations under Count 11 as well as under Count 10. Ground Eight
of the Prosecution’s Appeal is therefore dismissed.
207.
In
its Ninth Ground of Appeal, the Prosecution argues that the Trial Chamber
incorrectly stated and applied the law when it held that:
“Where both Article 6(1) and
Article 6(3) responsibility are alleged under the same count, and where the
legal requirements pertaining to both of these heads of responsibility are met,
it would constitute a legal error invalidating a judgement to enter a
concurrent conviction under both provisions.
Where a Trial Chamber enters a
conviction on the basis of Article 6(1) only, an accused’s superior position
may be considered as an aggravating factor in sentencing.”[316]
208.
The
Prosecution’s argument on this Ground is twofold. First, the Prosecution argues
that the Trial Chamber erred in law by precluding itself, within its discretion,
from entering a conviction under either
Article 6(1) or Article 6(3) and then
taking the other form of culpability into account during sentencing. Second, it
argues that the Trial Chamber erred in law by failing to recognize that the bar
on concurrent convictions under Articles 6(1) and 6(3) only applies when the
convictions are based on the same facts.
The Prosecution submits that the Trial Chamber should have entered convictions
under Articles 6(1) and 6(3) where they were based on different facts, even
though they were pleaded in the same Count.[317]
209.
If
the Prosecution’s second argument is accepted, the Prosecution proposes a
lengthy set of additional convictions under Article 6(3) for criminal acts for
which the Trial Judgment found the Appellants were responsible but did not
enter convictions.[318]
In summary, the Prosecution contends that, where multiple crimes are alleged
within the same Count, the Trial Chamber should have examined each crime to
determine whether the Appellants were guilty under Article 6(1), Article 6(3),
or both. Only after doing so, could the Trial Chamber conclude whether to enter
a conviction for specific crimes under Article 6(1) or Article 6(3), and
whether to consider the alternative mode of responsibility during sentencing.
210.
Brima
and Kamara—in nearly identical briefs in the relevant part—respond that “even
though the contemplated Article 6(3) convictions might not have been reflected
in the Trial Chamber’s Disposition, they were nonetheless, considered for
sentencing purposes and reflect in the . . . global sentence imposed” as
evidenced by the Trial Chamber’s statement that the sentences account “for the
crimes for which [the accused are] responsible under Article 6(3).” Kanu similarly
responds that the Sentencing Judgment adequately accounted for the Trial
Chamber’s finding of his Article 6(3) responsibility by considering it as an
aggravating circumstance in the determination of his sentence.[319]
Consequently, according to each Appellant, it is clear that the Trial Chamber
considered their Article 6(3) criminal responsibility for sentencing purposes,
even if, in the words of Brima and Kamara, “it was not reflected in the Trial
Chamber’s Disposition.”[320]
Kanu further argues that a conviction should be entered under Article 6(1)
alone if either:
(i)
Article
6(1) and 6(3) responsibility are proved for different acts alleged under a
single Count; or
(ii)
Article
6(1) and 6(3) responsibility are proved for the same acts alleged under
different Counts.[321]
211.
The
question of law posed by the Prosecution in this Ground is whether the
principle against cumulative convictions bars a Trial Chamber from entering a
compound conviction under both Articles 6(1) and 6(3) for different criminal
conduct charged under the same Count of the Indictment. All parties look to a
survey of the relevant case law in Prosecutor
v. Orić for guidance.[322]
The Prosecution argues that the analysis in Orić
only reaches to instances pertaining to alternative or cumulative modes of
responsibility with regard to “the same principal crime on basically the same
facts.”[323]
Kanu argues that the “consensus” opinion in the case law, including Orić, is that the Trial Chambers
act within their discretion to determine whether to enter a conviction under
Article 6(1) or 6(3) “as long as the ultimate penalty reflects the overall
culpability of the Accused so that it is both just and appropriate.”[324]
212.
Brima
and Kamara argue that the only difference between the present case and Orić is that in Orić, “the counts were different
and the facts the same, but in the present case the counts are the same the facts
are different.”[325]
Moreover, Kanu concedes that none of the case law to date “relat[es]
to cumulative convictions on the same Count under Article 6(1) and Article 6(3)
based
on different facts. All the cases on the point deal with the issue in
the context of cumulative convictions based on the same facts.”[326]
This is true, in fact, because the problem of cumulative or concurrent
convictions only arises in instances of cumulative charging: a practice in
international criminal tribunals whereby the Prosecution may allege multiple
crimes for the same underlying conduct.[327]
The problem of impermissibly cumulative or concurrent convictions does not
arise when the alleged crimes are not based upon the same criminal conduct.[328]
213.
In
paragraph 800, the Trial Chamber attempted to address the problem of cumulative
convictions to ensure that no factors were double-counted toward the sentence
of the accused. The bar on double-counting requires that only those factors
which have been proven beyond a reasonable doubt may be used to increase the
sentence of an accused,[329]
and that no factor taken into account as an aspect of the gravity of the crime
may be additionally taken into account as a separate aggravating circumstance.[330]
In summarizing the relevant rule against concurrent convictions under Articles 6(1)
and 6(3), the Trial Chamber relied on paragraph 91 of the Blaškić Appeals Judgment, which states:
“The
Appeals Chamber considers that the provisions of Article 7(1) and Article 7(3)
of the Statute connote distinct categories of criminal responsibility. However,
the Appeals Chamber considers that, in relation to a particular count, it is
not appropriate to convict under both Article 7(1) and Article 7(3) of the
Statute. Where both Article 7(1) and Article 7(3) responsibility are alleged
under the same count, and where the legal requirements pertaining to both of these
heads of responsibility are met, a Trial Chamber should enter a conviction on
the basis of Article 7(1) only, and consider the accused’s superior position as
an aggravating factor in sentencing.”
214.
Read
in isolation, this excerpt from the Blaškić
Appeals Judgment would indicate that a compound conviction could not be
entered for multiple charges in a single Count. But the following paragraph in Blaškić clarified that the holding
there is limited to multiple convictions pertaining to the same underlying
facts: “concurrent conviction pursuant to
Article 7(1) and Article 7(3) of the Statute in relation to the same counts based
on the same facts, as reflected in the Disposition of the Trial Judgement,
constitutes a legal error invalidating the Trial Judgment in this regard.”[331]
In light of the practice at international criminal courts of charging multiple
instances of an offence within a single Count,[332]
no
identifiable legal principle should prevent compound convictions for multiple
instances of the same offence charged in a single Count, when multiple
convictions would be allowed if multiple instances of the same offence at issue
were charged in separate Counts.
215.
The
Appeals Chamber finds that the Trial Chamber was satisfied that the legal
requirements for conviction under Article 6(3) were met in several instances,
but that the Trial Chamber did not enter convictions for those crimes. This
constitutes an error of law. Trial Chambers do not have discretion to decline
to enter convictions for crimes once they have been proven beyond reasonable
doubt and they are not impermissibly cumulative. Instead, when the accused is
charged for multiple instances of an offence under a single Count pursuant to
both Articles 6(1) and 6(3), and one or more is proved beyond a reasonable
doubt for each mode of responsibility, then a compound conviction should be
entered against the accused,[333]
and the Trial Chamber must take into account all of the convictions and the
fact that both types of responsibility were proved in its consideration of
sentence.[334]
As the jurisprudence of the international criminal tribunals shows, “multiple
convictions serve to describe the full culpability of a particular accused or
provide a complete picture of his criminal conduct.”[335]
216.
Although the Trial
Chamber erred in failing to enter convictions on the Appellants where it had
found that the legal requirements for entering convictions under Article 6(3)
have been met, in this case no useful purpose will be served by the Appeals
Chamber now entering convictions on the basis of such findings, made by the
Trial Chamber, having regard to the adequate global sentence imposed on each
Appellant.
217.
In
his First Ground of Appeal, Brima alleges that the Trial Chamber erred in law
and in fact in failing to ensure the equality of arms between the Prosecution
and Defence, which “denied or substantially impaired [his] right . . . to a
fair trial” and resulted in “a miscarriage of justice.”[336]
218.
Brima
submits that the principle of equality of arms is a core element of the right
to a fair trial;[337]
that while equality of arms does not guarantee an equality of resources, there
must at least be an approximate equality in terms of resources.[338]
Brima complains that the Trial Chamber denied him “adequate time and resources”
necessary to present his case.[339]
219.
In
response, the Prosecution contends that Brima’s Ground of Appeal consists
almost entirely of a discussion of general legal principles relating to the
concept of equality of arms. Brima does not make any statement on the
particular circumstances of his own case, except for general complaint
contained in paragraph 81 of his Appeal Brief.[340]
The Prosecution further states that during the trial, Brima never filed any
written request seeking additional time or resources, and that he cannot now
place on the Prosecution the burden of establishing that he did, in fact, have
adequate time and resources.[341]
220.
The
Statute and Rules provide for an accused’s right to a fair trial.[342]
In particular, Article 17(4) of the Statute requires that an accused has
“adequate time and facilities for the preparation of his or her defence and to
communicate with counsel of his or her own choosing.”[343]
Equality of arms is a core element of the right to a fair trial.
221.
Additional
legal provisions relate to allocation of resources and facilities to the
accused. Rule 45 directs the Registrar to establish, maintain and develop a
Defence Office “for the purpose of ensuring the rights of suspects and accused [persons].”
The Defence Office has the responsibility to, inter alia,
provide “adequate facilities for counsel in the preparation of the defence.”[344]
The Directive on the Assignment of
Counsel requires that reasonable
facilities and equipment be provided to the Defence team.[345]
222.
The
Appeals Chamber notes the submission in paragraph 81 of Brima’s Appeal Brief
that Brima’s fair trial right “was substantially and seriously compromised and
impaired without the adequate time and resources needed . . . to conduct
investigations that were vital to the presentation” of his case.[346]
Brima, however, fails to substantiate his assertion with any specific claim as
to how greater resources would have put him on more level footing, or what
investigations were not undertaken due to the purported lack of time or
resources. Nowhere in his Appeal Brief does he expressly identify the specific
rights or entitlements that he required at the pre-trial or trial stage but
which were unavailable to him with the effect that his right to a fair trial
was violated.
223.
The
Appellant Brima is required to set out his Ground of Appeal and supporting
arguments clearly and exhaustively. That has not been done in this case.
224.
Brima’s
First Ground of Appeal is therefore dismissed.
225.
Brima’s
Fourth and Sixth Grounds of Appeal, respectively, read as follows:
(i)
“The
Trial Chamber erred in fact and/or law by finding the Accused Brima was
responsible under Article 6(3) for the crimes committed by his subordinates in
Bombali District between
(ii)
There
is an “error in law and/or fact due to the Trial Chamber’s finding that the Accused
Brima is liable as a superior under Article 6(3) for crimes committed in
226.
Both
Grounds complain that the Trial Chamber erred in law and/or fact in finding
that the Appellant Brima is liable as a superior under Article 6(3) for crimes
committed by his subordinates in Bombali District (Ground Four) and in
227.
In
failing to state particulars in his Grounds of Appeal, Brima’s submissions are
unacceptable, diffused and wide-ranging, complaining of the evaluation of
evidence of witnesses by the Trial Chamber and what could be regarded as a
profuse, but unnecessary, statement of general principles of law relating to
superior responsibility, at the end of which the Appellant Brima did not
pinpoint in respect of which finding and in which particular regard the Trial
Chamber had erred in fact and or in law.
228.
Most
of the submissions in respect of Ground Six were mere assertions of fact which
properly ought to have been made before the Trial Chamber.
229.
The
Appeals Chamber in perusing the Judgment of the Trial Chamber finds that the
Trial Chamber had made appropriate legal and factual findings upon which it
based its conclusion that Brima was responsible as a superior under Article 6(3).
We are of the opinion that nothing useful has been urged in this Appeal to make
us come to the conclusion that the Trial Chamber was in error.
230.
For
these reasons Grounds Four and Six of Brima’s Grounds of Appeal must fail.
231.
In
respect of Brima’s Fifth Ground of Appeal, the Appeals Chamber repeats its
opinion in regard to Grounds Four and Six, as Ground Five of Brima’s Appeal has
the same defects as those other two Grounds.
232.
For
the reasons stated in respect of those Grounds, Ground Five of Brima’s Appeal
must also fail.
233.
In
his First Ground of Appeal, Kamara submits that the “Trial Chamber erred in law
and or fact in paragraphs 1915 and 2117 in finding Kamara responsible/guilty
under Article 6(1) for ordering the
unlawful killing of five civilians in Karina in the Bombali District pursuant
to Counts 3, 4 and 5 of the
Indictment, thereby invalidating the Trial judgment and leading to a
miscarriage of justice.”[349]
234.
Kamara
submits that the evidence of Prosecution witnesses TF1-334 and Junior Johnson,
upon which the Trial Chamber relied in finding him guilty of ordering murder,
is both contradictory and unreliable. He argues that these witnesses gave
contradictory evidence of his exact whereabouts at the time of the killings, the
location of the killings, and the identity of the individual who ordered the
killings. He further argues that in view of these contradictions, the
Prosecution failed to prove liability beyond reasonable doubt and that the
Trial Chamber’s failure to exclude such evidence occasioned a miscarriage of
justice.[350]
He contends further that because of the status of witness TF1-334 as a
co-perpetrator, the Trial Chamber erred in law in not cautioning itself as to
how his testimony should be evaluated.
235.
The
Prosecution responds that the “Trial Chamber was duly mindful of the concerns
of the Defence in this regard and had correctly instructed itself on the
appropriate legal standards.”[351]
236.
Kamara’s
First Ground raised two issues relating to:
(i)
Contradiction
in the evidence of Prosecution witnesses; and
(ii)
Assessment
of evidence of accomplice.
237.
The
Appeals Chamber has earlier in this Judgment pronounced on these two issues and
there is no reason to repeat what it said already.[352]
238.
The
Appeals Chamber will not disturb the Trial Chamber’s reliance on the testimony
of witness TF1-334. Having heard the testimony of witness TF1-334, the Trial
Chamber is in a far better position than the Appeals Chamber to decide whether
his alleged participation in the commission of crimes affects his credibility
and the reliability of his testimony. The Appeals Chamber finds that Kamara
failed to demonstrate that a reasonable tribunal could not have relied on the
evidence of the unlawful killings in Karina. This Ground of Appeal therefore fails.
239.
The
Appeals Chamber has considered Kamara’s Grounds Two, Three and Four where the
substance of complaint is that the Trial Chamber erred in fact in finding that
Kamara planned the crimes alleged in Counts 9, 12 and 13. Having scrutinised the Record on Appeal the
Appeals Chamber concludes that the Grounds of Appeal were misconceived. The Trial
Chamber in its findings had not found that Kamara planned the crimes set out in
Counts 9, 12 and 13. However, the Appeals Chamber has noted that the Trial
Chamber in its Disposition had mistakenly stated that Kamara was guilty of the
crimes in Counts 9, 12 and 13 pursuant to Article 6(1) of the Statute when it
should have been Article 6(3).
240.
Accordingly,
the Appeals Chamber revises the Trial Chamber’s Disposition by substituting
Article 6(3) for Article 6(1) in respect of Counts 9, 12 and 13.
241.
Kamara
contends that the Trial Chamber erred in law and in fact by finding him guilty
under Article 6(1) for aiding and abetting the mutilation of civilians in
242.
In
discussing the mens rea for aiding
and abetting, the Trial Chamber stated:
“The mens rea required for aiding and abetting is that the accused knew
that his acts would assist the commission of the crime by the perpetrator or
that he was aware of the substantial likelihood that his acts would assist the
commission of a crime by the perpetrator. However, it is not necessary that the
aider and abettor had knowledge of the precise crime that was intended and
which was actually committed, as long as he was aware that one of a number of
crimes would probably be committed, including the one actually committed.”[356]
243.
The
Appeals Chamber finds that the Trial Chamber was correct in its analysis. The
Appeals Chamber of the ICTY in both Blaškić
and Simić found that it was not
necessary to prove that the aider and abettor knew the precise crime that was
intended or actually committed by the principal perpetrator.[357]
In both cases the ICTY Appeals Chamber held further that liability for aiding
and abetting requires proof that the accused knew that one of a number of
crimes would probably be committed, that one of those crimes was in fact
committed, and that the accused was aware that his conduct assisted the
commission of that crime.[358]
The Appeals Chamber endorses this principle.
244.
Kamara
also alleges that the Trial Chamber erred in law in failing to require that
“the aider and abettor was aware of the essential
elements of the crime which was ultimately committed by the principal.”[359]
The Aleksovski, Krnojelac and Brđanin
Appeals Chambers held that the aider and abetter must be aware of the essential
elements of the crime which was ultimately committed by the principal.[360]
245.
In
the present case, the Trial Judgment did not explicitly refer to the “essential
elements” requirement, but instead limited its statement of the law to whether
the accused knew or was aware of the substantial likelihood that his acts would
assist the commission of a crime by the perpetrator.[361]
The Trial Chamber found that Kamara was aware of the substantial likelihood
that, as deputy commander of the AFRC troops, his presence would provide moral
support and assist the commission of killings in the
246.
In
determining that Kamara was responsible for aiding and abetting the attacks at
247.
In
addition, the Trial Chamber also held that Kamara being deputy commander of the
troops, his presence at the scene gave moral support to the perpetrators and
that the Trial Chamber is satisfied that the Appellant Kamara was aware of the
substantial likelihood that his presence would assist the commission of the
crime by the perpetrators.[366]
248.
Kamara
argues that his presence at
249.
The
Trial Chamber explicitly addressed the issue of discrepancies in witness
testimony with regard to the killings at
“The Kamara Defence submits that
the testimonies of witnesses TF1-334, George Johnson and TF1-184 on the attack
on
250.
On
Appeal, Kamara failed to show that the Trial Chamber did not properly exercise
its discretion in resolving the differences between the testimony of witness
TF1-334, George Johnson and TF1-184.
251.
Grounds
Five and Six of Kamara’s Appeal therefore fail.
252.
In
Kamara’s Seventh Ground of Appeal he submits that the “Trial Chamber erred in
law and or fact in paragraphs 1884, 1893 (Kono), 1928 (Bombali), 1950 (Western
Area), 1969 (Port Loko) and 2117 of the Judgment in finding Kamara criminally
responsible/guilty under Article 6(3) for crimes committed by his subordinates
at Tombodu, Kono District and throughout Bombali District and the Western Area
and Port Loko District pursuant to Counts 1, 2, 3, 4, 5, 6, 9, 10, 12, 13 and
14 of the Indictment thereby leading to a miscarriage of justice.”[370]
253.
The
Trial Chamber found Kamara criminally responsible as a superior under Article 6(3)
of the Statute for crimes committed by his subordinates in Kono District,
Bombali District, Port Loko District and
254.
Concerning
Bombali District, the Trial Chamber found that there was a formal AFRC command
structure in Bombali District and that Kamara in his capacity as Deputy Brigade
Commander exercised effective control over AFRC troops in this location.[374]
Additionally, it found on the basis of the evidence adduced that Kamara was the
overall commander of AFRC troops in Port Loko District and that he had
effective control.[375]
In reaching this conclusion, the Trial Chamber relied on the evidence of
Prosecution witnesses George Johnson and TF1-334 that Kamara gave orders which
were carried out, that he appointed and promoted commanders, enforced
discipline over AFRC troops, and was in a position of de jure authority over other high level commanders, including the
Operations Commander, who reported to him.[376]
Furthermore, the Trial Chamber found that it was satisfied beyond reasonable
doubt that Kamara was the overall commander of the AFRC forces in Port Loko
District and that he had substantial authority in that position.[377]
The Trial Chamber also found that Kamara was the Deputy Commander of AFRC
troops during the invasion of Freetown and that he had both de jure and de facto authority of command.[378]
255.
Under
his Seventh Ground of Appeal, Kamara submits:
(i)
That
he did not have effective control or the ability to control the actions of Savage
and consequently could not be liable for crimes committed by Savage in Kono
District;
(ii)
That
he did not have effective control over AFRC troops in Kono District;
(iii) That the Trial Chamber
erred in its interpretation of witness TF1-334’s evidence;[379]
(iv) That the Trial Chamber
erred in fact in finding him criminally responsible as a superior for crimes
committed in Bombali District on the basis of evidence demonstrating that he
“ordered” crimes and “participated in decision making”;[380]
(v)
That
the Trial Chamber erred in finding him responsible as a superior for crimes
committed by AFRC troops in Freetown on the basis of evidence indicating that
he was present at meetings and at headquarters at State House immediately
following its capture on 6 January 1999.[381]
256.
The
Prosecution responds that Kamara failed to demonstrate that the Trial Chamber
erred in finding him criminally responsible as a superior for crimes committed
by AFRC troops in Kono District, Bombali District, Port Loko District and
257.
In
addition to military commanders, superior responsibility under Article 6(3) of
the Statute encompasses political leaders and other civilian superiors in
positions of authority.[386]
A superior is one who possesses the power or authority to either prevent a
subordinate’s crimes or punish the subordinate after the crime has been
committed.[387]
The power or authority may arise from a de
jure or a de facto command
relationship.[388]
Whether it is de jure or de facto, the superior-subordinate
relationship must be one of effective control, however short or temporary in
nature. Effective control refers to the material ability to prevent or punish
criminal conduct.[389]
The test of effective control is the same for both military and civilian
superiors.[390]
258.
Kamara
submits that a finding of superior responsibility requires proof of both
command and control which he claims are inseparable.[391]
The Appeals Chamber rejects this assertion. The terms “command” and “control”
are two related but distinct concepts. The term “command” refers to powers that
attach to a military superior, while the term “control,” which has a wider
meaning encompasses both military and civilian superiors.[392]
259.
Kamara
contends that the Trial Chamber erred in finding him liable as a superior for
crimes committed by Savage in Kono District. According to Kamara, he
did not have the material ability to control the acts of Savage because Savage
was unruly in character.[393]
The Trial Chamber noted that there was evidence that Savage was very difficult
to control and that he was unpredictable.[394]
The Trial Chamber was satisfied that Savage’s unpredictable character was not a
bar to finding that Kamara had effective control over him.[395]
The Appeals Chamber finds no reason to disturb the Trial Chamber’s finding that
Kamara is liable as a superior for crimes committed by Savage in Kono District.
260.
With
respect to Kamara’s responsibility for the crimes committed by AFRC troops in
Kono, the Trial Chamber found that after the departure of Johnny Paul Koroma
from Kono District, the AFRC was subordinate to the RUF and that Kamara became
the highest ranking AFRC soldier in the District.[396]
It also found that AFRC and RUF troops worked closely together in Kono District
and that commanders from each faction supervised mixed battalions of AFRC and
RUF troops.[397]
It held that despite the AFRC’s subordination to the RUF, including Kamara’s
subordination to the RUF’s Denis Mingo, Kamara still had effective control over
some mixed battalions of AFRC and RUF troops.[398]
261.
In
reaching this conclusion, the Trial Chamber relied on the evidence of witness
TF1-334 who testified that Kamara, although subordinate to Denis Mingo, was the
most senior commander of the AFRC in Kono District and that AFRC combatants
“operated under their [i.e. Mingo’s
and Kamara’s] command and were answerable to the AFRC commanders.”[399]
The Trial Chamber also noted the evidence of George Johnson that Denis Mingo
appointed and promoted some members of the RUF and this was endorsed by Kamara,[400]
and that Kamara exercised authority over promotions within the AFRC troops in
Kono District.[401]
According to witness TF1-334, although Kamara was subordinate to Denis Mingo
and received orders from him, AFRC troops operated under Kamara’s command and
were answerable to him.[402]
Witness TF1-334 corroborated George Johnson’s testimony that Kamara made
appointments, gave promotions and issued orders which were carried out by AFRC
troops.[403]
262.
Subordination
of the AFRC to the RUF and substantial cooperation between the AFRC and RUF may
have diminished the distinction between the two command structures.
Nonetheless, the Appeals Chamber considers that concurrent command does not
vitiate the individual responsibility of any of the commanders.[404]
In its evaluation of concurrent command in Kono District, the Trial Chamber
concluded that Denis Mingo’s command in Kono District over joint units of the
AFRC/RUF force did not preclude a finding of superior responsibility on the
part of Kamara. The Trial Chamber noted Denis Mingo’s position of authority
over Kamara, but also noted that Kamara continued to issue orders to AFRC
subordinates which were followed,[405]
and remained the most senior AFRC commander in Kono until Brima’s arrival in
mid-May 1998.[406]
The Appeals Chamber finds no error in the Trial Chamber’s approach, and
therefore affirms the Trial Chamber’s finding that Kamara exercised effective
control in Kono District.
263.
Kamara
argues that the Trial Chamber erred in its interpretation of witness TF1-334’s
evidence regarding muster parades in Kono.[407]
He contends that witness TF1-334 only testified as to “how often a muster [parade]
generally occurs in a military context” rather than to how often the AFRC held
muster parades in Kono District as held by the Trial Chamber.[408]
The relevant excerpts are the following:
“Prosecution: You use the word
muster, M-U-S-T-E-R; what do you mean by muster?
Witness TF1-334: This is a
military term that is to bring together the various forces and address them.
That is what we call mustered.
Prosecution: How often does a
muster generally occur in a military
context?
Witness TF1-334: Well, this was a
weekly address. Every week the two groups were addressed.
Prosecution: Now go on. You were
talking about Morris Kallon saying something about the SLAs and that they
should not muster?
Witness TF1-334: And again he
said the
264.
In
paragraph 1869 of its Judgment, the Trial Chamber summarized the testimony,
stating:
“Witness TF1-334 also testified
that the AFRC troops held muster parades
every week in Kono, until they were prohibited from doing so by Morris
Kallon (RUF) . . . The witness explained that ‘mustering’ is a military term
that refers to the force being brought together and addressed publicly. This
procedure is indicative of an organised force that is responsive to superior
command.”[410]
265.
Having
considered the relevant excepts, the Appeals Chamber
holds that the Trial Chamber did not err in its interpretation of the evidence
of witness TF1-334. The evidence remains that the AFRC held regular muster
parades in Kono and that this fact demonstrates a degree of command and control
from which effective control could reasonably be inferred.
266.
Kamara
contends that evidence demonstrating he “ordered” crimes and “participated in
decision making” in Bombali District is insufficient to establish his criminal
responsibility as a superior.[411]
Kamara acknowledges that he had powers to issue orders but stated that he did
not have powers to discipline AFRC troops.[412]
The powers of a superior to issue orders and make binding decisions are
indicative of his ability to exercise effective control.[413]
Contrary to Kamara’s contention, the Trial Chamber did not establish his
effective control merely on the basis of evidence that he ordered crimes.
Rather, it considered evidence that Kamara, inter
alia, issued orders to troops in Karina which were obeyed, participated at
a senior level in military operations in Bombali District and received reports
from both the operations commander and the provost marshal.[414]
Accordingly, the Appeals Chamber endorses the Trial Chamber’s approach in
establishing Kamara’s effective control in Bombali District.
267.
Kamara
submits that the Trial Chamber failed to reconcile the conflicting testimony of
witness TF1-334 and witness TF1-167 concerning the burning of five
young
girls inside a house in Karina in Bombali District.[415]
He argues that in failing to provide a reasoned opinion explaining its
evaluation of the conflicting evidence, the Trial Chamber failed to establish
that it was proved beyond reasonable doubt that he is liable as a superior
under Article 6(3) of the Statute.[416]
Kamara had advanced similar arguments in respect of the testimony of witnesses
TF1-167 and TF1-334 concerning an order that prisoners released from Pademba
Road Prison should move to State House and that AFRC troops should burn houses
and parastatals in Freetown.[417]
268.
While
it is preferable for the Trial Chamber to state its reasons for accepting the
evidence of one witness over that of another when they are contradictory, the
Trial Chamber is not obliged to refer to every piece of evidence on the trial
record.[418]
Rather, it may only make findings of material facts that are essential to the
determination of guilt in relation to a particular Count. The Appeals Chamber notes
that the Trial Chamber has set out in its Judgment the standard of review for
the evaluation of witness testimony.[419]
269.
The
Appeals Chamber now turns to Kamara’s final contention that the Trial Chamber
erred in finding him responsible as a superior for crimes committed by AFRC
troops in
270.
Contrary
to Kamara’s assertion, his presence at State House did not form the sole basis
for the Trial Chamber’s finding of effective control. In addition to his
presence, the Trial Chamber based its finding that he exercised effective
control over AFRC forces on the fact that Kamara was often in the company of
senior commanders; that he participated in decision making; that he did not
distance himself from decisions that were made and that he gave orders that
were obeyed.[422]
Kamara has not demonstrated any error or unreasonableness in the Trial
Chamber’s findings.
271.
For
the above reasons, the Appeals Chamber holds that Ground Seven of Kamara’s
Appeal is untenable.
272.
Under
his First Ground of Appeal, Kanu submits that the Trial Chamber erred in law
and in fact by finding that the words “the
273.
Kanu
submits that the determination of whether the accused is one of those who bear
the “greatest responsibility” should be made either at the pre-trial stage or
at the close of the Prosecution’s case when considering the Motion for
Acquittal.[429]
He submits further that the Trial Chamber’s assessment should be based on a
consideration of the leadership position of the accused.[430]
In conclusion, Kanu submits that he is not one of those who bear “the greatest
responsibility” for the crimes committed, and because this jurisdictional
requirement[431]
was not met in his case, all convictions against him should be set aside.[432]
274.
In
response, the Prosecution submits that there was no error in the Trial
Chamber’s finding that the greatest responsibility standard is a guide to
prosecutorial strategy rather than a jurisdictional requirement. It relies on
the drafting history of the Statute to support this argument.[433]
In particular, the Prosecution notes that the Security Council did not disagree
with the Secretary-General’s opinion that the phrase “persons who bear the
greatest responsibility” must not be seen as a test criterion or a distinct
jurisdictional threshold, but as a guide to the Prosecutor in adopting a
prosecution strategy in individual cases.[434]
The Prosecution contends that if the Appeals Chamber were to hold that the
clause is a jurisdictional requirement, it would require a factual
determination at the pre-trial stage that there is no person who has not been
indicted who bears greater responsibility than the accused. According to the
Prosecution, this would be an absurd interpretation because it is impossible to
know the precise scope of criminal liability of an accused at the pre-trial
stage.[435]
Similarly, the Prosecution argues that it would be unworkable to suggest that
this determination should be made by the Trial or Appeals Chamber at the end of
the trial.[436]
By way of analogy, the Prosecution submits that if “persons who bear the greatest
responsibility” contained in Article 1 of the Special Court Statute was a
jurisdictional requirement, then the term “persons responsible” contained in
Article 1 of the ICTY and ICTR Statutes could also be viewed as jurisdictional
requirements, leading to the “absurdity” that the Prosecutor would only be able
to prosecute those who are actually guilty.[437]
275.
The
Prosecution further argues that prosecutorial discretion is not susceptible to
judicial review,[438]
except in circumstances where the Prosecutor acts in contravention of the
rights of an accused and bases his decision to prosecute on impermissibly
discriminatory motives.[439]
The Prosecution argues that Kanu has failed to demonstrate that in indicting
him, the Prosecutor has not exercised his discretion in good faith or that he
did so unreasonably.[440]
Moreover, the Prosecution submits that Kanu should have brought his challenge
to the greatest responsibility standard at the pre-trial stage, and having
failed to do so, he must be taken to have waived his right to do so at a later
stage of the proceedings.[441]
276.
In
reply, Kanu submits that even if the Appeals Chamber were to hold that he has
waived his right to raise this issue on appeal, it should, in the interest on
justice or to avoid an injustice, consider the issue proprio motu.[442]
277.
The Appeals Chamber
notes that Articles 1, 11 and 15 of the Statute read as follows:
Article
1
Competence of the
1. The Special Court shall,
except as provided in subparagraph (2), have the power to prosecute persons who
bear the greatest responsibility for serious violations of international
humanitarian law and Sierra Leonean law committed in the territory of Sierra
Leone since 30 November 1996, including those leaders who, in committing such
crimes, have threatened the establishment of and implementation of the peace
process in Sierra Leone.
2. Any transgressions by
peacekeepers and related personnel present in Sierra Leone pursuant to the
Status of Mission Agreement in force between the United Nations and the
Government of Sierra Leone or agreements between Sierra Leone and other
Governments or regional organizations, or, in the absence of such agreement,
provided that the peacekeeping operations were undertaken with the consent of
the Government of Sierra Leone, shall be within the primary jurisdiction of the
sending State.
3. In the event the sending State
is unwilling or unable genuinely to carry out an investigation or prosecution,
the Court may, if authorized by the Security Council on the proposal of any
State, exercise jurisdiction over such persons.
Article
11
Organization of the
The
a. The Chambers, comprising one or more Trial
Chambers and an Appeals Chamber;
b. The Prosecutor; and
c. The Registry.
Article
15
The Prosecutor
1. The Prosecutor shall be
responsible for the investigation and prosecution of persons who bear the
greatest responsibility for serious violations of international humanitarian
law and crimes under Sierra Leonean law committed in the
2. The Office of the Prosecutor
shall have the power to question suspects, victims and witnesses, to collect
evidence and to conduct on-site investigations. In carrying out these tasks,
the Prosecutor shall, as appropriate, be assisted by the Sierra Leonean authorities
concerned.
3. The Prosecutor shall be
appointed by the Secretary-General for a three-year term and shall be eligible
for re-appointment. He or she shall be of high moral character and possess the
highest level of professional competence, and have extensive experience in the
conduct of investigations and prosecutions of criminal cases.
4. The Prosecutor shall be
assisted by a Sierra Leonean Deputy Prosecutor, and by such other Sierra
Leonean and international staff as may be required to perform the functions
assigned to him or her effectively and efficiently. Given the nature of the
crimes committed and the particular sensitivities of girls, young women and
children victims of rape, sexual assault, abduction and slavery of all kinds,
due consideration should be given in the appointment of staff to the employment
of prosecutors and investigators experienced in gender-related crimes and
juvenile justice.
5. In the prosecution of juvenile
offenders, the Prosecutor shall ensure that the child-rehabilitation programme
is not placed at risk and that, where appropriate, resort should be had to
alternative truth and reconciliation mechanisms, to the extent of their
availability.
278.
In
interpreting Article 1 of the Statute it should be noted that there are
different organs of the Court each of which has its own function. Article 11 of
the Statute states the Court comprises of the following organs:
(i) The Chambers,
consisting of one or more Trial Chambers and one Appeals Chamber;
(ii) The Prosecutor; and
(iii)
The
Registry.
280.
Each
organ of the Court performs specific functions as set out in the Statute. The
Chambers constitute the adjudicative organ of the Court. The Prosecutor by
virtue of Article 15(1) of the Statue is the organ vested with the
responsibility “for the investigation and prosecution of persons who bear the
greatest responsibility for serious violations of international humanitarian
law and crimes under Sierra Leonean law committed in the
281.
It
is evident that it is the Prosecutor who has the responsibility and competence
to determine who are to be prosecuted as a result of investigation undertaken
by him. It is the Chambers that have the competence to try such persons who the
Prosecutor has consequently brought before it as persons who bear the greatest
responsibility.
282.
The
Appeals Chamber agrees with the Prosecution that the “only workable
interpretation of Article 1(1) is that it guides the Prosecutor in the exercise
of his prosecutorial discretion. That discretion must be exercised by the
Prosecution in good faith, based on sound professional judgment . . . that it
would also be unreasonable and unworkable to suggest that the discretion is one
that should be exercised by the Trial Chamber or the Appeals Chamber at the end
of the trial.”[443]
283.
In
the opinion of the Appeals Chamber it is inconceivable that after a long and
expensive trial the Trial Chamber could conclude that although the commission
of serious crimes has been established beyond reasonable doubt against the
accused, the indictment ought to be struck out on the ground that it has not
been proved that the accused was not one of those who bore the greatest
responsibility.
284.
Kanu’s
interpretation of Article 1 of the Statute is a desperate attempt to avoid
responsibility for crimes for which he had been found guilty.
285.
Kanu’s
First Ground of Appeal is therefore without merit
286.
The
Fifth and Sixth Grounds of Kanu’s Appeal both invoke errors relating to the
Trial Chamber’s findings that he bears superior responsibility under Article 6(3)
of the Statute. Kanu advances identical legal arguments in support of these
Grounds. Consequently, the Appeals Chamber will consider them together.
287.
Kanu
submits that the Trial Chamber adopted a flawed approach in assessing whether
he had effective control over AFRC troops in Bombali District (Fifth Ground of
Appeal) and
288.
In
response, the Prosecution submits that Kanu had the material ability to prevent
or punish the AFRC troops under his command and gave several examples in which
Kanu exercised that authority. The Prosecution contends that Kanu’s arguments
are “without merit” and maintains that the Trial Chamber did not commit an
error of fact or law that either resulted in a miscarriage of justice or
invalidated the Trial Judgment.[446]
289.
The
Appeals Chamber recalls that the existence of a superior-subordinate
relationship is paramount to the determination of superior responsibility.
Critical to the finding of a superior-subordinate relationship is that the
commander exercised “effective control” over his subordinates.[447]
Effective control refers to the material ability of a superior, whether
military or civilian, de jure or de facto, to prevent or punish his
subordinates’ crimes.[448]
“Substantial influence” or “persuasive ability” which falls short of effective
control is insufficient for a finding of superior responsibility.[449]
A finding that a superior exercised effective control is a question of fact to
be determined on a case-by-case basis.
290.
The Appeals Chamber
rejects Kanu’s submission that the Trial Chamber adopted a two-pronged approach
to determining effective control which sought first whether the AFRC leadership
collectively had effective control to establish whether Kanu individually had
effective control over AFRC troops. The Appeals Chamber considers that Kanu’s
assertion is premised on an incorrect interpretation of the Trial Chamber’s
findings. The Appeals Chamber is of the opinion that the Trial Chamber properly
examined the AFRC structure in order to determine whether it created an
enabling atmosphere for the exercise of effective control.
291.
As
to the issue of effective control in respect of superior responsibility the
Appeals Chamber reiterates its conclusion it arrived at on the similar Ground
of Appeal by the Appellant Kamara.
292.
Kanu’s
Fifth and Sixth Grounds of Appeal therefore fail.
293.
In
his Seventh Ground of Appeal, Kanu alleges that the Trial Chamber erred in law
in dismissing his argument that “the absence of criminal knowledge on his part
vitiated the requisite mens rea to
the crimes relating to child soldiers.”[450]
He argues that the mens rea element
required for the crime was in this instance negated by a mistake of law on his
part. Due to various factors, detailed in his Appeal Brief, Kanu submits that
“he believed that his conduct [of conscripting or enlisting children under the
age of 15 years] was legitimate.”[451]
He contends that at all material times, he lacked the requisite criminal intent
required for the crime of “conscripting or enlisting children under the age of
15 years into armed forces or groups or using them to participate actively in
hostilities” punishable under Article 4.c of the Statute of the Special Court.
294.
In
the alternative, Kanu argues that conscripting or enlisting children under the
age of 15 was not a war crime at the time alleged in the Indictment.
295.
The
Prosecution observes that the Appeals Chamber has already ruled that
conscripting or enlisting children under the age of 15 years into armed forces
or groups or using them to participate actively in hostilities was a crime
entailing individual criminal responsibility at the time of the acts alleged in
the Indictment. The Appeals Chamber refers to its dictum that:
“The rejection of the use of
child soldiers by the international community was widespread by 1994 . . . Citizens of Sierra Leone, and even less,
persons in leadership roles, cannot possibly argue that they did not know that
recruiting children was a criminal act in violation of international
humanitarian law. Child recruitment was criminalized before it was explicitly
set out as a criminal prohibition in treaty law and certainly by November 1996,
the starting point of the time frame relevant to the indictments. As set out
above, the principle of legality and the principle of specificity are both
upheld.”[452]
296.
Kanu’s
submission that conscripting or enlisting children under the age of 15 was not
a war crime at the time alleged in the Indictment is without merit. Furthermore
it is frivolous and vexatious for Kanu to contend that the absence of criminal
knowledge on his part vitiated the requisite mens rea in respect of the crimes relating to child soldiers.
297.
Kanu’s
Seventh Ground of Appeal therefore fails.
298.
In
his Ninth Ground of Appeal, Kanu submits that the Trial Chamber erred in
convicting him under Article 6(1) for planning the commission of sexual slavery
(Count 9), the conscription and use of children for military purposes (Count
12), and abductions and forced labour (Count 13). The Trial Chamber held that
Kanu “planned, organised and implemented the system to abduct and enslave
civilians which was committed by AFRC troops in Bombali and Western Area.” It
further held that Kanu “had the direct intent to establish and implement the
system of exploitation involving the three enslavement crimes, namely, sexual
slavery, conscription and use of children under the age of 15 for military
purposes, and abductions and forced labour.”[453]
The Trial Chamber was, therefore, satisfied beyond reasonable doubt that Kanu
bore individual criminal responsibility under Article 6(1) for planning the
commission of the above crimes in the Bombali District and the Western Area.[454]
299.
Kanu
argues that while the evidence shows that it fell upon him, as Chief of Staff,
to manage the system of slavery within the AFRC faction, he could not be
convicted on that basis for planning the crimes of sexual slavery, conscription
and use of children for military purposes, and abductions and forced labour.[455]
He further argues that at best, the evidence implicates him at the execution
stage in the military training of children and the exploitation of women for
sexual purposes.[456]
300.
The
Prosecution responds that Kanu’s position of influence in the AFRC and his admission that he managed this system of slavery amply justify
a reasonable inference that he was involved in planning the above crimes.[457]
301.
The
Appeals Chamber concurs with the Trial Chamber’s definition of planning under
Article 6(1). The Trial Chamber stated that “ ‘planning’
implies that one or several persons contemplate designing the commission of a
crime at both the preparatory and execution phases.”[458]
Circumstantial evidence may provide proof of the existence of a plan, and an
individual may incur responsibility for planning when his level of
participation is substantial even though the crime may have actually been
committed by another person.[459]
According to the Trial Chamber, the actus
302.
With
regard to sexual slavery, the Trial Chamber found that:
“In Bombali District the Accused
Kanu designed and implemented a system to control abducted girls and women. All
abducted women and girls were placed in the custody of the Accused. Any soldier
who wanted an abducted girl or woman to be his “wife” had to ‘sign for her’.
The Accused informed his fighters that any problems with the women were to be
immediately reported back to him, and that he would then monitor the situation.
The Accused issued a disciplinary instruction ordering that any woman caught
with another woman’s husband should be beaten and locked in a box.”[463]
On the basis of this evidence, the
Trial Chamber was satisfied beyond reasonable doubt that Kanu was responsible
for planning the commission of the crime of sexual slavery in the Bombali
District and the Western Area. The Appeals Chamber agrees.
303.
The
Appeals Chamber now turns to the Trial Chamber’s findings regarding the
conscription and use of children for military purposes, as well as abductions
and forced labour in the Bombali District and the Western Area. In the case of
Bombali District, the Trial Chamber found that Kanu was in charge of forced
military training of civilians at Camp Rosos and that children below the age of
15 years were among those forced to undergo training.[464]
On the basis of this evidence, the Trial Chamber was satisfied beyond
reasonable doubt that in the Bombali District Kanu was not only responsible for
planning the conscription of children under the age of 15 into an armed group,
but also for using such children to participate actively in hostilities, as
well as for the crime of enslavement.
304.
Regarding
the Western Area, the Trial Chamber also found that Kanu “continued in his
positions as Chief of Staff and commander in charge of civilians in
305.
Finally,
the Appeals Chamber finds that the evidence led before the Trial Chamber
warrants an examination of Kanu’s responsibility for aiding and abetting the
commission of sexual slavery and forced labour in
306.
The
Appeals Chamber upholds the conviction of Kanu for planning the commission of
sexual slavery in the Bombali District and upholds the conviction of Kanu for
planning the commission of sexual slavery in the Western Area and further
upholds the Trial Chamber’s convictions for planning the conscription and use
of children for military purposes as well as abductions and forced labour in
the Bombali District and the Western Area. The Appeals Chamber furthermore
finds that there is sufficient evidence that Kanu aided and abetted the
commission of the said crimes. However, as he has already been convicted of
planning those crimes the question of convicting him on the basis of aiding and
abetting does not arise.
307.
The
Trial Chamber imposed a sentence of fifty (50) years imprisonment on Brima and
Kanu respectively and forty-five (45) years imprisonment on Kamara.[469]
The Trial Chamber found that there were a number of
aggravating but no mitigating factors. The Appellants have appealed against the
sentence, while the Prosecution has not done so except to request that if some
of its Grounds succeed, the Appeals Chamber should consider revising the
sentence to reflect any additional criminal liability. The Appellants’ Grounds
of Appeal are closely related, therefore, dealing with them separately would
lead to unnecessary repetition. It is convenient to address the Appellants’
submissions together except for those which raise a different issue in Kanu’s
Eighth Ground of Appeal.
308.
Article
19 of the Statute limits the penalty that a Trial Chamber can impose upon a
convicted person (other than a juvenile) to “imprisonment for a specified term
of years.” It further provides that the Trial Chamber shall, in determining the
“terms of imprisonment,” as appropriate, have recourse to the sentencing
practices of the International Criminal Tribunal for
309.
The
determination of an appropriate sentence being at the discretion of the Trial
Chamber, the Appeals Chamber will only revise a sentence where the Trial
Chamber has committed a discernible error in exercising its discretion or has
failed to follow the applicable law. To show that the Trial Chamber committed a
discernible error in exercising its discretion:
“the
Appellant has to demonstrate that the Trial Chamber gave weight to extraneous
or irrelevant considerations, failed to give weight or sufficient weight to
relevant considerations, made a clear error as to the facts upon which it
exercised its discretion, or that the Trial Chamber’s decision was so
unreasonable or plainly unjust that the Appeals Chamber is able to infer that
the Trial Chamber must have failed to exercise its discretion properly.”[471]
310.
Brima
alleges that the Trial Chamber erred by imposing a global sentence of fifty
years, that it is “excessively harsh and disproportionate,” and that it is
inconsistent with the sentencing guidelines of the ICTY and the ICTR.[472]
Kamara’s Tenth Ground of Appeal argues that the Trial Chamber was required by
Article 19(1) of the Statute to consider the sentencing practices in the ICTR
and the national courts of
311.
Article
19(1) of the Statute provides that the “Trial Chamber, as appropriate, shall
have recourse to the practice regarding prison sentences in the International
Criminal Tribunal for Rwanda and the national courts of Sierra Leone.” The
phrase “where appropriate” shows that the Trial Chamber has a
discretion in determining when to have recourse to sentencing practices
in the two courts.
312.
The
Appellants make two distinct submissions with regard to mitigating factors.
First, that the Trial Chamber did not consider mitigating factors and second,
that particular mitigating factors were not given adequate weight.[475]
313.
Rule
101(B) of the Rules provides that the “Trial Chamber shall take into account
the factors mentioned in Article 19(2) of the Statute, as well as such factors
as: …any mitigating circumstances including the substantial cooperation with
the Prosecutor by the convicted person before or after conviction.” Brima and
Kanu argue that the Trial Chamber failed to consider mitigating factors.[476]
314.
In
the view of the Appeals Chamber an appellant challenging the weight given by a
Trial Chamber to a particular mitigating circumstance has the duty of showing
that the Trial Chamber abused its discretion.
315.
The
mere recital of mitigating factors, as the Appellants have done, without
concrete arguments, does not suffice to discharge the burden of demonstrating
that the Trial Chamber abused its discretion.[477]
316.
Brima
submits that the Trial Chamber erred by considering the following factors in
determining the gravity of the offence as well as aggravating factors:
“The
brutality and heinousness of the crimes such as the drugging of child soldiers,
brutal gang rapes, lengthy periods of enslavement, the burning alive of
civilians and amputations.”
317.
Although
the issue of double-counting was only raised by Brima, it is in the interest of
justice for the Appeals Chamber to consider the issue in relation to Kanu and
Kamara as well. As the Trial Chamber notes in the Sentencing Judgment, “where a
factor has already been taken into account in determining the gravity of the
offence, it cannot be considered additionally as an aggravating factor . . . .”[478]
This prohibition is well established in the case law of the international
criminal tribunals.[479]
318.
In
Nikolić, the ICTY Appeals
Chamber determined that the Trial Chamber had double-counted by repeating facts
concerning the accused’s general role in the offences.[480]
However, the Appeals Chamber determined that there was no double-counting where
the Trial Chamber considered the impact of the crimes on the victim in one
section and the vulnerability of the victims in the other section.[481]
319.
The
Appeals Chamber notes that there were instances of double-counting in the
Sentencing Judgment.[482]
320.
Although
the Trial Chamber made an error by double-counting, the Appeals Chamber does
not consider that this error had a significant impact upon the Appellants’
sentences.
321.
In
his Eighth Ground of Appeal, Kanu submits that the Trial Chamber erred in law
in imposing a global sentence of fifty years. He argues that the term of
imprisonment shows that the cumulative convictions entered against him were not
discounted for sentencing purposes[483] and that the sentence imposed on him
reflects the number of convictions rather than the underlying criminal conduct.[484]
Kanu further submits that a more appropriate penalty that reflects his criminal
conduct and not the number of convictions should replace the sentence imposed
on him. In response, the Prosecution contends that the Trial Chamber was under
no obligation to discount the cumulative convictions entered against Kanu for
sentencing purposes.[485]
322.
The
Trial Chamber stated that the Special Court Statute permits it to impose a
single sentence. It added that in exercising its discretion whether to impose a
single sentence, “[t]he governing criteria is that the final or aggregate
sentence should reflect the totality of the culpable conduct, or generally,
that it should reflect the gravity of the offences and the overall culpability
of the offender, so that it is both just and appropriate.”[486]
The Trial Chamber then explained that “[i]n the present case the Trial Chamber
finds it is appropriate to impose a global sentence for the multiple convictions in respect of
Brima, Kamara and Kanu.”[487]
323.
In
the Sentencing Judgment, the Trial Chamber enumerated all criminal acts for
which Kanu was found responsible under Article 6(1) of the Statute and also
referred to the gravity of the criminal conduct of his subordinates throughout
Bombali District, Freetown and other parts of the Western Area for which he was
found liable under Article 6(3) of the Statute. The emphasis placed on Kanu’s
criminal acts demonstrates that the Trial Chamber ascertained the gravity of
the offences in light of the individual criminal acts rather than in light of
the multiple Counts for which Kanu was convicted. This approach ensured that
the sentence encompasses Kanu’s, overall, criminal conduct.
324.
The
Appeals Chamber finds that in imposing sentence, the Trial Chamber considered
the overall criminal conduct of Kanu, rather than the number of convictions
entered against him.
325.
The
Appeals Chamber thus finds no error in the Trial Chamber’s approach that would
warrant its interference with the sentence imposed. Ground Eight of Kanu’s
Appeal therefore fails.
326.
Having
considered all the Grounds of Appeal relating to the Sentencing Judgment of the
Trial Chamber, the Appeals Chamber is satisfied that the Trial Chamber has
overall properly exercised its discretion within the provisions of the Statute
of the Court.
327.
Article
19(2) of the Statute states as follows:
“In imposing the sentences, the
Trial Chamber should take into account such factors as the gravity of the offence and the individual circumstances of the
convicted person” (emphasis added).
328.
The
Trial Chamber, in applying this provision to the case, had this to say:
“Brima, Kamara and Kanu have been
found responsible for some of the most heinous, brutal and atrocious crimes
ever recorded in human history. Innocent civilians – babies, children, men and
women of all ages – were murdered by being shot, hacked to death, burned alive,
beaten to death. Women and young girls were gang raped
to death. Some had their genitals mutilated by the insertion of foreign
objects. Sons were forced to rape mothers, brothers
were forced to rape sisters. Pregnant women were killed by having their
stomachs slit open and the foetus removed merely to settle a bet amongst the
troops as to the gender of the foetus. Men were disembowelled and their
intestines stretched across a road to form a barrier. Human heads were placed
on sticks on either side of the road to mark such barriers. Hacking off the
limbs of innocent civilians was commonplace. The victims were babies, young
children and men and women of all ages. Some had one arm amputated, others lost
both arms. For those victims who survived an amputation, life was instantly and
forever changed into one of dependence. Most were turned into beggars unable to
earn any other living and even today cannot perform even the simplest of tasks
without the help of others. Children were forcibly taken away from their
families, often drugged and used as child soldiers who were trained to kill and
commit other brutal crimes against the civilian population. Those child
soldiers who survived the war were robbed of a childhood and most of them lost
the chance of an education.”[488]
The Appeals Chamber is,
therefore, satisfied that having regard to that finding, the Trial Chamber was
justified in imposing a prison sentence of fifty (50) years on the Appellant
Alex Tamba Brima, forty-five (45) years on the Appellant Brima Bazzy Kamara,
and fifty (50) years on Santigie Borbor Kanu.
329.
The
Appeals Chamber finds no cause to interfere with the exercise by the Trial
Chamber of its discretion in sentencing the Appellants.
330.
In
the result the Appellants Appeal against sentence fails.
For
the foregoing reasons, THE APPEALS
CHAMBER
PURSUANT to
Article 20 of the Statute and Rule 106 of the Rules of Procedure and Evidence;
NOTING the
written submissions of the Parties and their oral arguments presented at the
hearings on 12, 13 and
SITTING in
open session;
UNANIMOUSLY;
WITH RESPECT TO THE PROSECUTION’S
GROUNDS OF APPEAL;
HOLDS
in regard to Grounds One and Three, that as the Appellants have been
convicted and sentenced to terms of imprisonment of fifty (50) years and
forty-five (45) years for crimes committed under Article 6(1) or Article 6(3)
of the Statute, in Bombali District and in the Western Area, it becomes an
academic exercise and also pointless to adjudicate further on Grounds One and
Three of the Prosecution’s Appeal;
ALLOWS the
Fourth Ground of Appeal relating to joint criminal enterprise but sees no need
to make further factual findings or to remit the case to the Trial Chamber for
that purpose, having regard to the interest of justice;
ALLOWS
Ground Seven relating to forced marriage but declines to enter a further
conviction on Count 8 of the Indictment;
ALLOWS Ground Nine relating to cumulative
convictions, but declines to enter such convictions for responsibility found
under Articles 6(1) and 6(3) of the Statute, having regard to the global sentences
imposed which are adequate;
DISMISSES
Grounds Two, Five, Six and Eight;
WITH RESPECT TO BRIMA’S GROUNDS OF
APPEAL;
NOTES
that Grounds Two, Three, Seven and Eight have been abandoned;
DISMISSES
the rest of his Grounds, namely Grounds One, Four, Five, Six, Nine, Ten, Eleven
and Twelve and AFFIRMS the sentence
of fifty (50) years imprisonment imposed by the Trial Chamber;
WITH RESPECT TO KAMARA’S GROUNDS OF
APPEAL;
DISMISSES
all of Kamara’s Grounds of Appeal;
REVISES the
Trial Chamber’s Disposition in respect of Counts 9, 12 and 13 by substituting
Article 6(3) for Article 6(1) of the Statute and AFFIRMS the sentence of forty-five (45) years imprisonment imposed
by the Trial Chamber;
WITH RESPECT TO KANU’S GROUNDS OF APPEAL;
DISMISSES
all of Kanu’s Grounds of Appeal and AFFIRMS
the sentence of fifty (50) years imprisonment imposed by the Trial Chamber;
ORDERS that
this Judgment be enforced immediately pursuant to Rule 102 of the Rules of
Procedure and Evidence.
Delivered
on
|
Justice George Gelaga King, Presiding |
Justice Emmanuel Ayoola |
Justice Renate Winter |
|
|
Justice Raja N. Fernando |
Justice Jon M. Kamanda |
||
[Seal of the
1.
The
Further Amended Consolidated Indictment on
2.
The
Trial Chamber on 20 June 2007, convicted Brima, Kamara and Kanu of the
following: acts of terrorism; collective punishments; extermination; murder;
violence to life, health and physical or mental well-being of persons, in
particular murder and mutilation; outrages upon personal dignity; conscripting
children under the age of 15 years into armed groups and/or using them to
participate actively in hostilities; enslavement; pillage; and rape (Counts 1,
2, 3, 4, 5, 10, 9, 12, 13, 14, and 6).[489] The Trial Chamber found Brima and Kamara not
guilty of “Other Inhumane Acts,” a crime against humanity, under Article 2(1)
of the Statute (Count 11).[490] The Trial Chamber did not enter convictions
under Count 7 for sexual slavery and any other form of sexual violence because
Count 7 violated the rule against duplicity.[491] Finally, the Trial Chamber did not enter a
conviction under Count 8 for “Other Inhumane Acts,” a crime against humanity,
under Article 2.i of the Statute, because there was no evidence of sexual violence
as an inhumane act which was not subsumed under rape (Count 6) or outrages upon
personal dignity, specifically sexual slavery (Count 9).[492]
3.
On
4.
On
5.
On
6.
Also
on
7.
The
Prosecution also filed a Motion on
8.
The
Prosecution and the Appellants filed their respective appeal briefs on
9.
Oral
arguments of the Parties were heard by the Appeals Chamber on 12, 13 and
Prosecution
v. Brima, Fofana and, Kondewa, SCSL-03-11-PT, Trial
Chamber I, Decision on the Preliminary Defence Motion on the Lack of Personal
Jurisdiction Filed on Behalf of Accused Fofana, 3 March 2004.
Prosecutor v. Brima, Kamara and
Kanu, SCSL-04-16-PT-046, Decision and
Order on Defence Preliminary Motion on Defects in the Form of the Indictment,
Prosecutor v. Norman, Fofana
and Kondewa, SCSL-2004-14-AR72(E), Appeals Chamber, Decision on Preliminary
Motion Based on Lack of Jurisdiction (Child Recruitment), 31 May 2004 [Norman
Child Recruitment Decision].
Prosecutor
v. Brima, Kamara and Kanu, SCSL-04-16-T Trial
Chamber, Decision on Defence Motions for Judgment of Acquittal pursuant to Rule
98, 31 March 2006 [Rule 98 Decision].
Prosecutor
v. Brima, Kamara and Kanu,
SCSL-04-16-T, Special Court for Sierra Leone, Trial Chamber, Decision on
Defence Motions for Judgment of Acquittal Pursuant to Rule 98, Separate
Concurring Opinion of Hon. Justice Julia Sebutinde, 31 March 2006 [Sebutinde Rule 98
Opinion].
Prosecutor
v. Brima, Kamara, and Kanu,
SCSL-04-16-T,
Prosecutor
v. Brima, Kamara and Kanu,
SCSL-04-16-T,
Prosecutor
v. Brima, Kamara and Kanu,
SCSL-04-16-T, Special Court for Sierra Leone, Judgment, Trial Chamber II, 20
June 2007, Separate Concurring Opinion of Justice Julia A. Sebutinde Appended
to Judgment Pursuant to Rule 88(C) [Sebutinde Separate Concurring Opinion].
Prosecutor
v. Brima, Kamara and Kanu,
SCSL-2004-16-T, Corrigendum to Judgment Filed on
Prosecutor
v. Brima, Kamara and Kanu,
SCSL-04-16-T,
Prosecutor v. Aleksovski, IT-95-14/1-A,
Appeals Chamber, Judgment,
Prosecutor v. Babić, IT-03-72-A,
Appeals Chamber, Judgment on Sentencing
Appeal,
Prosecutor v. Blagojević and Jokic, IT-02-60-T, International
Criminal Tribunal for the former
Prosecutor
v. Blagojević and Jokic, IT-02-60-A, Appeals Chamber, Judgment,
Prosecutor
v. Blaškić,
IT-95-14, International
Criminal Tribunal for the former
Trial
Chamber, Judgment,
Prosecutor
v. Blaškić,
IT-95-14-A, International Criminal Tribunal for the
former
Appeals Chamber,
Judgment,
Prosecutor
v. Bralo, IT-95-17-S, International
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Trial
Chamber, Sentencing Judgment,
Prosecutor
v. Bralo, IT-95-17-A, International
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Appeals
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Prosecutor
v. Brđanin, ICTY-99-36-1, International Criminal
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Prosecutor
v. Brđanin, IT-99-36-A, International
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Appeals Chamber, Judgment,
Prosecutor v. Delalic, Mucic, Delic, and Landžo,
IT-96-21-T, International Criminal Tribunal for the former
Prosecutor v. Delalic, Mucic, Delic, and Landžo,
IT-96-21-A, International Criminal Tribunal for the former Yugoslavia, Appeals
Chamber, Judgment, 20 February 2001 [Čelibići Appeal
Judgment].
Prosecutor
v. Deronjić,
ICTY-02-61-S, Trial Chamber, Sentencing Judgment,
Prosecutor
v. Deronjić,
IT-02-61-A, International Criminal Tribunal for the
former
Appeals
Chamber, Judgment on Sentencing Appeal,
Prosecutor
v. Galić,
IT-98-29-T, International Criminal Tribunal for the former
Trial Chamber, Judgment and
Opinion,
Prosecutor
v. Galić,
IT-98-29-A, International Criminal Tribunal for the
former
Appeals
Chamber, Judgment,
Prosecutor
v. Halilović, IT-01-48-T,
International Criminal Tribunal for the former
Trial
Chamber, Judgment,
Prosecutor
v. Haradinaj,
IT-04-84, International Criminal Tribunal for the
former Yugoslavia,
Trial Chamber, Decision on Motion
to Amend the Indictment and on Challenges to the Form of the Amended
Indictment, 25 October 2006 [Haradinaj
Form of the Indictment Decision].
Prosecutor
v. Jokić, IT-01-42/1-A, International
Criminal Tribunal for the former
Appeals
Chamber, Judgment on Sentencing Appeal,
Prosecutor v. Kordić &
Čerkez,
IT-95-14/2-T, International Criminal Tribunal for the former Yugoslavia, Trial
Chamber, Judgment, 26 February 2001 [Kordić
Trial Judgment].
Prosecutor v. Kordić & Čerkez, IT-95-14/2-A, International
Criminal Tribunal for the former
Prosecutor
v. Krajišnik,
IT-00-39 & 40, International Criminal Tribunal
for the former
Trial
Chamber, Decision Concerning Preliminary Motion on the Form of the Indictment,
Prosecutor
v. Krnojelac,
IT-97-25, International Criminal Tribunal for the
former
Trial
Chamber, Decision on the Defence Preliminary Motion on the Form of the
Indictment,
Prosecutor
v. Krnojelac,
IT-97-25, International Criminal Tribunal for the
former
Trial
Chamber, Decision on Form of Second Amended Indictment,
Prosecutor
v. Krnojelac, IT-97-25, International Criminal Tribunal
for the former
Trial Chamber, Judgment,
Prosecutor
v. Krnojelac,
IT-97-25-A, International Criminal Tribunal for the
former
Appeals
Chamber, Judgment,
Prosecutor v. Krstić, IT-98-33-T, International
Criminal Tribunal for the former
Trial
Chamber, Judgment,
Prosecutor
v. Kunarać et al., IT-96-23 & IT-96-23/1-A, International Criminal
Tribunal for the former Yugoslavia, Appeals Chamber, Judgment, 12 June
2002 [Kunarać Appeal Judgment].
Prosecutor
v. Kupreškić et al., IT-95-16-A, International
Criminal Tribunal for the former Yugoslavia, Appeal Chamber, Judgment, 23
October 2001 [Kupreškić Appeal
Judgment].
Prosecutor
v. Kupreškić et al., IT-95-16-T, International
Criminal Tribunal for the former
Prosecutor
v. Kvočka
et al.,
IT-98-30-PT, International Criminal Tribunal for the former Yugoslavia, Trial
Chamber, Decision on Defence Preliminary Motions on the Form of the Indictment,
12 April 1999 [Kvoćka Form of the Indictment
Decision].
Prosecutor
v. Kvočka
et al., IT-98-30/1-T,
International Criminal Tribunal
for the former Yugoslavia, Trial
Chamber, Judgment, 2 November 2001 [Kvočka Trial Judgment].
Prosecutor v. Kvočka et al.,
IT-98-30/1-A, International Criminal Tribunal for the former
Prosecutor v. Limaj et al.,
IT-03-66-T, International Criminal Tribunal for the former
Trial Chamber, Judgment,
Prosecutor
v. Naletilić and Martinović, IT-98-34, International
Criminal Tribunal for the former Yugoslavia, Trial Chamber, Decision on Prosecution
Motion to Amend Count Five of the Indictment, 28 November 2000 [Naletilić Decision on Motion Amend
Indictment].
Prosecutor v. Naletilić and
Martinović, IT-98-34-T,
International Criminal Tribunal for the former
Prosecutor v. Naletilić and
Martinović, IT-98-34-A,
International Criminal Tribunal for the former
Prosecutor
v. Momir Nikolić, IT-02-60/1-A,
International Criminal Tribunal for the former Yugoslavia,
Appeals Chamber, Judgment on Sentencing
Appeal, 8 March 2006 [Nikolić Sentencing
Appeal Judgment].
Prosecutor
v. Orić IT-03-68-T, International
Criminal Tribunal for the former
Trial
Chamber, Judgment,
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v. Simić,
IT-95-9-T, International Criminal Tribunal for the former
Prosecutor
v. Simić, IT-95-9-A,
International
Criminal Tribunal for the former
Prosecutor
v. Stanković, IT-96-23/2-PT,
International Criminal Tribunal for the former
Trial
Chamber, Decision
on the Defence’s Preliminary Motion on the Form of the Second Amended
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Prosecutor
v. Stakić, IT-97-24-A, International Criminal
Tribunal for the former
Prosecutor
v. Tadić, IT-94-1,
International Criminal Tribunal for the former
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Prosecutor v. Tadić,
IT-94-1-A, International Criminal Tribunal for the former
Prosecutor
v. Vasiljević, IT-98-32-T, International
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v. Vasiljević, IT-98-32-A, International Criminal
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Prosecutor
v. Akayesu, ICTR-96-4-T, International Criminal
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v. Bagilishema, ICTR-95-1A-A,
International
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Gacumbitsi v. Prosecutor, ICTR-2001-64, International Criminal
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Gacumbitsi v. Prosecutor, ICTR-2001-64-A, International Criminal
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Prosecutor v. Kajelijeli, ICTR-98-44A-T, International Criminal
Tribunal for
Prosecutor v. Kajelijeli, ICTR-98-44A-A, International Criminal
Tribunal for
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v. Kayishema and Ruzindana,
ICTR-95-1-T, International Criminal
Tribunal for
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v. Musema,
ICTR-96-13-A, International
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v. Niyitegeka , ICTR-96-14-T, International Criminal Tribunal
for
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v. Niyitegeka,
ICTR-96-14, International
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Prosecutor v. Ntagerura et al., ICTR-99-46-T, International Criminal Tribunal
for
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Ntagerura et al., ICTR-99-46-A,
International
Criminal Tribunal for
The
Prosecutor v. Ntakirutimana, ICTR-96-10-A & ICTR-96-17-A, International Criminal
Tribunal for
Prosecutor v.
Rutaganda,
ICTR-96-3-T, International Criminal Tribunal for
Prosecutor v.
Rutaganda,
ICTR-96-3-A, International Criminal Tribunal for
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v. Semanza, ICTR-97-20-T, International Criminal
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and Sentence,
Cotterill v. Lempriere [1890]
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R. v. Thompson
[1914] 2 K.B. 99.
R. v.
R. v. Disney
[1933] 2 K.B. 138.
R. v. Jones
(1974), 59 Cr.App.R. 120.
R.
v. Johnson [1945] K.B. 419, 424-425.
Lansana and Eleven Others v. R.
[1971] 186
Security Resolution 1315, UNSCOR, 4186th Mtg., UN
Rules of Procedure and Evidence, adopted on 16 January
2002, as amended on 7 March 2003, 1 August 2003, 30 October 2003, 14 March
2004, 29 May 2004, 14 may 2005, 13 May 2006, 24 November 2006, 14 May 2007 and
17 November 2007 [“Rules of the Special Court”]
Statute of the Special
Court for Sierra Leone, annexed to the Agreement Between the Untied Nations and
the Government of Sierra Leone on the Establishment of a Special Court for
Sierra Leone, United Nations and Sierra Leone, 16 January 2002, 2178 U.N.T.S.
138 [“Statute of the Special Court”].
Agreement between the United Nations and the
Government of Sierra Leone on the Establishment of a Special Court for Sierra
Leone, United Nations and Sierra Leone, 16 January 2002, 2178 U.N.T.S. 138
[Special Court Agreement].
Charter of the International Military
Tribunal,
Control Council Law No. 10,
Charter of the International Military
Tribunal of the
Statute of the
International Criminal Tribunal for the former
Statute of the
International Criminal Tribunal for
Charles Wright and Arthur Miller, Federal Practice and Procedure, (3d ed.).
[1]
Prosecutor v. Brima, Kamara and Kanu,
SCSL-2004-16-T,
[2] SC Res. 1315, UN
[3] Agreement
between the United Nations and the Government of Sierra Leone on the
Establishment of a Special Court for Sierra Leone, United Nations and Sierra
Leone, 16 January 2002, 2178 U.N.T.S. 138 [Special Court Agreement]. The
Agreement entered into force on
[4] See
[5] Special Court Statute,
Arts 2-5.
[6] AFRC Trial
Judgment, paras 156-157.
[7] Ibid at para. 156.
[8] Ibid at paras 157, 159.
[9] Ibid at para. 160.
[10] Ibid at para. 159.
[11] Ibid at para. 160.
[12] Ibid at para. 161.
[13] Ibid at para. 161.
[14] Ibid at para. 161.
[15] Ibid at para. 161.
[16] Ibid at para. 162.
[17] Ibid at para. 162.
[18] Ibid at para. 162.
[19] Ibid at para. 163.
[20] Ibid at para. 164.
[21] Ibid at para. 165.
[22] Ibid at para. 164.
[23] Ibid at para. 166.
[24] Ibid at para. 166.
[25] Ibid at para. 166
[26] Ibid at para. 167.
[27] Ibid at paras 167-168.
[28] Ibid at para. 174.
[29] Ibid at para. 174.
[30] Ibid at para. 175.
[31] Ibid at para. 175.
[32] Ibid at paras 177-209.
[33] Ibid at para. 209.
[34] Ibid at para. 209.
[35] Ibid at para. 209.
[36] Prosecutor v. Brima, SCSL-2003-06-I,
Indictment,
[37] Prosecutor v. Kamara, SCSL-2003-10-I,
Indictment,
[38] Prosecutor v. Kanu, SCSL-2003-13-I,
Indictment,
[39] Prosecutor v. Brima, Kamara and Kanu, SCSL-2004-16-PT, Further
Amended Consolidated Indictment,
[40] Indictment,
para. 33.
[41] See Prosecutor v. Brima,
Kamara and Kanu, SCSL-2004-16-PT, Defence Motion for Defects in the Form of
the Indictment, 1 March 2005; Prosecutor
v. Kamara, SCSL-2003-10-PT, Brief in Support of Preliminary Motion on
Defect in the Form of the Indictment, 23 December 2003; Prosecutor v. Kanu, SCSL-2003-13-PT, Motion on Defects in Form of
the Indictment and for Particularization of the Indictment, 16 October 2003; Prosecutor v. Brima, Kamara and Kanu,
SCSL-2004-16-PT, Defence Pre-Trial Brief for Tamba Alex Brima, 17 February
2005, paras 22-30; Prosecutor v. Brima,
Kamara and Kanu, SCSL-2004-16-PT, Kamara – Defence Pre-Trial Brief, 21
February 2005, paras 22-23; Prosecutor v.
Brima, Kamara and Kanu, SCSL-2004-16-PT, Kanu – Defense Pre-Trial Brief and
Notification of Defenses Pursuant to Rule 67(A)(ii)(a) and (b), 22 March 2004,
paras 15-19; Prosecutor v. Brima, Kamara
and Kanu, SCSL-2004-16-T, Public Version – Brima Defence Final Trial Brief,
11 December 2006, paras 126-156; Prosecutor
v. Brima, Kamara and Kanu, SCSL-2004-16-T, Public Kamara Final Trial Brief,
11 December 2006, paras 89-103.
[42] Prosecutor v. Brima, Kamara and Kanu,
SCSL-2004-16-PT, Defence Pre-Trial Brief for Tamba Alex Brima,
[43] Prosecutor v. Kamara, SCSL-2003-10-PT, Brief in Support of
Preliminary Motion on Defects in the Form of the Indictment,
[44] Ibid at para. 9.
[45] Prosecutor v. Brima, Kamara and Kanu,
SCSL-2004-16-T, Public Kamara Final Trial Brief,
[46] AFRC Trial Judgment, paras 285, 332, 434, 509.
[47] Ibid at paras 318, 437, 511.
[48] Ibid at paras 320, 438.
[49] Ibid at para. 321.
[50] Ibid at para. 321.
[51] Ibid at para. 321.
[52] Ibid at para. 436.
[53] Ibid at para. 184.
[54] Ibid at para. 201.
[55] Ibid at paras 420, 474,
531-532, 611.
[56] Ibid at paras 249, 254.
[57] Ibid at para. 224.
[58] Ibid at paras 238-239.
[59] Ibid at para. 85.
[60] Ibid at paras 2113, 2114, 2117, 2118,
2121, 2122; Corrigendum to AFRC Trial Judgment.
[61] AFRC Trial Judgment, paras 2114, 2118, 2122;
Corrigendum to AFRC Trial Judgment.
[62] AFRC Trial Judgment, paras
2113-2123.
[63] Ibid at paras 2116, 2120, 2123.
[64] Ibid at paras 93-95.
[65] Ibid at para. 714.
[66] AFRC Sentencing
Judgment, p. 36.
[67] Prosecutor v. Brima, Kamara and Kanu, SCSL-2004-16-A,
Appeal Brief of the Prosecution,
[68] Recruitment
of child soldiers, abductions and forced labour, and sexual slavery.
[69] The Appeals Chamber
declines to consider Brima’s Tenth and Eleventh Grounds as his Appeal Brief
offers no supporting arguments and fails to identify any issue of appeal.
[70] Prosecutor v. Brima, Kamara and Kanu,
SCSL-2004-16-A, Brima Appeal Brief,
[71] Ibid at paras
84, 120, 153, 168, 179.
[72] Ibid at paras 180-196.
[73] Prosecutor v. Brima, Kamara and Kanu,
SCSL-2004-16-A, Kamara Appeal Brief,
[74] Ibid at para. 191.
[75] Ibid at para. 223.
[76] Ibid at para. 237.
[77] Ibid at paras 252, 257, 260.
[78] Ibid at para. 243.
[79] Kvoćka Form of the Indictment
Decision, para. 14.
[80] Kupreškić
Appeal Judgment, para. 89.
[81] Krnojelac Form of
the Indictment Decision, para. 18.
[82] Brđanin Form of the
Indictment Decision, para. 22.
[83] Krnojelac Form of
the Indictment Decision, para. 18; Ntagerura Trial Judgment, para. 35.
[84] Kvoćka Form of the Indictment
Decision, para. 17.
[85] Rule 72(B)(ii)
expressly provides that preliminary motions by the accused include
“[o]bjections based on defects in the form of the indictment.”
[86] Niyitegeka Appeal Judgment, para. 199.
[87] Semanza Trial Judgment, para. 42.
[88] Niyitegeka
Appeal Judgment, paras 195-200.
[89] Kupreškić Appeal Judgment, para. 114 (“The Appeals Chamber,
however, does not exclude the possibility that, in some instances, a defective
indictment can be cured if the Prosecution provides the accused with timely,
clear and consistent information detailing the factual basis underpinning the
charges against him or her. Nevertheless, in light of the factual and legal
complexities normally associated with the crimes within the jurisdiction of
this Tribunal, there can only be a limited number of cases that fall within
that category.”). See also Ntakirutimana Appeal
Judgment, para. 27.
[90] Kupreskic Appeal Judgment, para. 115.
[91] AFRC Trial Judgment,
para. 37.
[92] Ibid at para. 37.
[93] Ibid
at para. 41.
[94]
Ibid at para. 38.
[95] Prosecution
Appeal Brief, para. 197.
[96] Ibid
at paras 201-203.
[97] Kamara Form of the Indictment Decision,
paras 40-43.
[98] Prosecution Appeal Brief, para.
211 (At the time that the Kamara preliminary motion was filed, the case was
before Trial Chamber I comprised of Judges Bankole Thompson, Pierre Boutet, and
Benjamin Mutanga Itoe. Subsequently, with the creation of a second Trial
Chamber for the
[99] Ibid at para. 211.
[100] Ibid at para. 209.
[101] Transcript, AFRC Appeal Hearing,
[102] Prosecution Appeal Brief, para.
206.
[103] Ibid at para. 220.
[104] Ibid
at para. 221.
[105] Ibid at para. 223.
[106] Ibid at para. 211.
[107] Ibid at para. 237.
[108] Prosecutor v. Brima, Kamara and Kanu,
SCSL-2004-16-A, Brima Response to Prosecution’s Appeal Brief,
[109] Brima Response Brief, para. 26; Kamara Response Brief, para. 34.
[110] Prosecutor v. Brima, Kamara and Kanu,
SCSL-2004-16-A, Respondent’s Submissions-Kanu Defence,
[111] Ibid at para. 2.9.
[112] Ibid at para. 2.14.
[113] Ntagerura Appeal Judgment, para. 55.
[114] Kamara Form of the Indictment Decision,
para. 52.
[115]
AFRC Trial Judgment, paras 66-70.
[116]
Ibid at para.
71.
[117] Ibid at
para. 80.
[118]
Prosecutor v. Brima,
Kamara and Kanu, SCSL-2004-16-A, Public Prosecution’s Notice of Appeal,
[119]
Ibid at para.
12(ii)(a).
[120]
Ibid at para.
12(ii)(b).
[121]
Kanu Appeal Brief, para. 10.2.
[122]
Ibid at para.
10.3.
[123]
Prosecution Appeal Brief, paras 393-394.
[124]
Ibid at para.
386.
[125]
Ibid at para.
388 (emphasis removed).
[126]
Ibid at paras 389,
391.
[127]
Brima Response Brief, para. 68; Kamara Response Brief, para.
115 (emphasis removed)
[128] Kanu Response Brief,
para. 4.24.
[129]
Ibid at para.
4.25.
[130] Article 6(1) of the
Statute provides that: “A person who planned, instigated, ordered, committed or
otherwise aided and abetted in the planning, preparation or execution of a
crime referred to in articles 2 to 4 of the present Statute shall be
individually responsible for the crime.”
[131] Tadić Appeal
Judgment, para. 186.
[132] Ibid at paras
189-193 (emphasis original).
[133] Ibid at para. 227.
[134] Kvočka Appeal
Judgment, para. 46.
[135] Haradinaj Form of
the Indictment Decision, para. 25 (The Trial Chamber held that the relevant
paragraphs plead the responsibility of the Accused pursuant to JCE in
sufficient detail to inform them of the charges against them.).
[136]
Prosecutor v. Haradinaj,
IT-04-84, Second Amended Indictment,
. . .
which necessarily involved the commission of crimes against humanity and
violations of the laws or customs of war, was the consolidation of total
control of the Kosovo Liberation Army over the KLA operational zone of Dukagjin
by attacking and persecuting certain sections of the civilian population there:
namely the unlawful removal of Serb civilians from that area, and the forcible,
violent suppression of any real or perceived form of collaboration with the
Serbs by Albanian or Roma civilians there. The criminal purpose included the
intimidation, abduction, imprisonment, beating, torture and murder of targeted
civilians in violation of Articles 3 and 5 of the Tribunal’s Statute.
[137]
Art. 25(3) of the Rome Statute states: “In accordance with this Statute, a
person shall be criminally responsible and liable for punishment for a crime,
within the jurisdiction of the Court if that person … in any other way
contributes to the commission of such a crime by a group of persons acting with
a common purpose. Such contribution shall be intentional and shall either: i. Be made with the aim of furthering the criminal activity or
criminal purpose of the group, where such activity or purpose involves the
commission of a crime within the jurisdiction of the Court; or ii. Be made in
the knowledge of the intention of the group to commit the crime.”
[138]
Ntagerura Trial Judgment, para. 30
(“In assessing an Indictment, the Chamber is mindful that each paragraph should
not be read in isolation but rather should be considered in the context of the
other paragraphs in the indictment.”); see
also Gacumbitsi Trial Judgment,
para. 176 (interpreting a general and introductory paragraph
only to the extent of the greater detail provided in subsequent paragraphs).
[139] Indictment, paras 33-35 (emphasis original).
[140] Ibid at para. 33.
[141]
Ibid at para.
35.
[142]
Afrc Trial Judgment, paras 74-76.
[143]
Brđanin
Decision on Motion to Dismiss Indictment, para. 15; Krajisnik Decision on Form of the
Indictment, para. 8.
[144]
Afrc Trial Judgment, para. 71
(finding that “[i]f the charged crimes are allegedly within the common purpose,
they can logically no longer be a reasonably foreseeable consequence of the
same purpose and vice versa.”).
[145]
See Prosecutor v. Karemera, ICTR-97-24,
International Criminal Tribunal for
[146] AFRC Trial Judgment at para. 77. The Appeals Chamber finds that an Indictment
alleging a joint criminal enterprise must indicate the time period over which
the enterprise existed. Established case law on the pleading of joint criminal
enterprise requires that an indictment must allege the nature of the
enterprise, the time period, the persons involved, and the nature of the
accused’s participation in the joint criminal enterprise. See Krnojelac Decision on
Form of Second Amended Indictment, para. 16.
[147] Paragraphs 33 to 35 of the Indictment do not
provide a time frame, but they should be read together with paragraph 32 of the
Indictment which alleges that “[a]t all times relevant to this Indictment,” the
three accused persons, “through their association with the RUF, acted in
concert with CHARLES GHANKAY TAYLOR” (emphasis original).
[148]
AFRC Trial Judgment, para. 85.
[149] The Appeals
Chamber also notes that sexual slavery was concurrently charged in the
Indictment as a war crime under Count 9 which alleges the commission of:
“Outrages upon personal dignity, a VIOLATION OF ARTICLE 3 COMMON TO THE GENEVA
CONVENTIONS
[150] AFRC
Trial Judgment, para. 95.
[151] Ibid at para. 93.
[152] Ibid at para. 93.
[153] Sebutinde Rule 98
Opinion, para. 8.
[154] Ibid at para. 9.
[155] Rule 98 Decision, para. 163.
[156] AFRC Trial Judgment, para.
94. See
Sebutinde Rule 98 Opinion, para. 6.
[157] Sebutinde Rule 98 Opinion, para.
8.
[158] Ibid at para. 6.
[159]
Prosecution Notice of Appeal, para. 18(i).
[160]
Ibid at para.
18(ii).
[161]
Ibid at para.
18(ii).
[162]
Prosecution Appeal Brief, para. 531. In
its appeal brief the Prosecution notes that multiple convictions under Article
2.g and 3.e for the same conduct would be permissible because each statutory
provision involves a materially distinct element not contained in the other. Article 2.g, as a crime against humanity, has chapeau elements which are distinct from those of Article 3.e,
which constitutes a war crime.
[163]
Ibid at para.
539.
[164]
Prosecution Appeal Brief, para. 543.
[165]
Brima Response Brief, para. 103; Kamara Response Brief, 149.
[166]
Brima Response Brief, para. 100; Kamara Response Brief, para.
146.
[167]
Prosecution Appeal Brief, para. 547.
[168]
Ibid at para.
553.
[169]
Ibid at para.
554.
[170]
Ibid at para.
555.
[171]
Brima Response Brief, para. 111; Kamara Response Brief, para.
157.
[172]
Kanu Response Brief, para. 6.9.
[173]
Prosecution Appeal Brief, para. 565.
[174] Doherty
Partly Dissenting Opinion.
Justice Doherty agreed with the majority’s view that the Prosecution did
not sufficiently specify the second limb of Count 7 (‘any other form of sexual
violence’), but she disagreed with the view that if Count 7 is duplicitous, the
Trial Chamber must dismiss it in its entirety (para. 3). Justice Doherty opined that the majority’s
reasoning that Count 7 is “bad for duplicity” is “formalistic and disregard[s]
the fundamental issue, which is whether the right of the Accused to be informed
promptly and in detail about the nature and the cause of the charges against
them has been violated” (para. 2). Justice Doherty did not consider the interests
of justice would be served by allowing the accused to invoke their right to
quash an indictment after the case has closed without a showing of material
prejudice. Furthermore, she noted that the Accused were not only silent on the
issue of duplicity throughout the trial, but proceeded to adduce evidence and
defend themselves against Count 7 (para. 15). Consequently, Justice Doherty did not consider
there to have been a miscarriage of justice in this case and instead of
dismissing the count, she would have considered evidence only relating to
sexual slavery, not “other forms of sexual violence” (Ibid).
[175]
Prosecution Appeal Brief, para. 568.
[176]
Brima Response Brief, para. 115; Kamara Response Brief, para.
161.
[177]
Brima Response Brief, para. 116; Kamara Response Brief, para.
162.
[178]
Kanu Response Brief, para. 6.15.
[179] Kupreškić Appeal Judgment, para. 79.
[180] Bizimungu Decision on Leave to File Amended Indictment, para.
31 (holding that it would be improper to charge genocide and
complicity in genocide in the same count.). See
also Naletilić Decision on Motion to Amend Indictment (drawing a
distinction between a count alleging one offence which involves multiple acts,
and a count in which the Prosecutor seeks to include two separate types of
offences.).
[181] Naletilić Decision on Motion to Amend Indictment, FN 2.
[182]
See Cotterill v. Lempriere [1890]
L.R. 24 Q.B.D. 634; R. v.
[183]
R. v. Thompson
[1914] 2 K.B. 99; R. v. Johnson
[1945] K.B. 419;
[184]
[185]
R. v. Jones (1974),
59 Cr. App. R. 120, 126.
[186]
Doherty Partly Dissenting Opinion, para. 15 (suggesting the
consideration of evidence relating only to sexual slavery instead of dismissing
the entire count).
[187] Kanu Appeal Brief, para. 2.1.
[188] AFRC Trial Judgment,
paras 2053, 2050.
[189] Ibid at paras 2051, 2055.
[190] Ibid at para. 2057.
[191] Kanu Appeal Brief, para. 2.1.
[192]
Ibid at para.
2.17.
[193] Ibid at para. 2.19.
[194]
Ibid at para.
2.20.
[195] Ibid at para. 2.27.
[196] Prosecution Response Brief, para. 2.82.
[197] Ibid at para. 2.84.
[198] Ibid at para. 2.86.
[199] Transcript, AFRC Appeal Hearing,
[200]
Brima Appeal Brief, para. 168.
[201]
Ibid at para.
169.
[202]
Ibid at paras
176-177.
[203]
Prosecutor v. Brima,
Kamara and Kanu, SCSL-2004-16-A, Response Brief of the Prosecution,
[204]
Ibid at para.
4.4.
[205]
AFRC Trial Judgment, paras 356-371.
[206]
Brima Appeal Brief, para. 177.
[207]
Rutaganda Appeal Judgment, para. 29.
[208] AFRC Trial Judgment, para. 362.
[209] Kamara Appeal Brief, para. 238.
[210] Prosecution Response Brief, para. 4.41.
[211] Ibid at para. 4.57.
[212] Prosecution Response Brief, para. 4.65.
[213] AFRC Trial Judgment, para. 125.
[214] Ibid at paras 124-125.
[215] Ibid at paras 128-130.
[216] Ibid at para. 358.
[217] Ibid at para. 359.
[218] Ibid at para. 362.
[219] Ibid at para. 363.
[220] Ibid at para. 370.
[221] Ibid at para. 370.
[222] Ibid at paras 356-371.
[223] Ibid at paras 359, 362.
[224] Ibid at
para. 125.
[225] Vasiljević
Appeal Judgment, para. 12; Kunarac. Appeal Judgment, para. 47; Kajelijeli Appeal Judgment, para.
7.
[226] AFRC Trial Judgment, para. 1884.
[227] Kamara Appeal Brief, para. 232.
[228] Transcript, TF1-334,
[229] Transcript, TF1-167,
[230] AFRC Trial Judgment, para. 887.
[231] Ibid at para. 890.
[232] Ibid at para. 924.
[233] Kamara Appeal Brief, para. 230.
[234] Ibid at para. 237.
[235] Kanu
Appeal Brief, para. 3.1.
[236] Ibid at para. 3.2.
[237] Ibid at paras
3.3-3.9.
[238] Prosecution
Response Brief, paras
4.31-4.32.
[239] Kanu
Appeal Brief, paras 3.2, 3.11-3.13.
[240] AFRC Trial
Judgment, paras 809, 828, 843, 859, 867, 882, 901, 954, 1200, 1221, 1288, 1336,
1353, 1391, 1405, 1412, 1420.
[241] Ibid at paras 356-377.
[242] Ibid at paras 132-133. The Trial Chamber found that “[i]n contrast
to its ICTY and ICTY counterparts, the Rules of the
[243] Rule
89(B).
[244] AFRC
Trial Judgment, para. 366.
[245] Ibid at para. 584.
[246] Ibid at para. 584.
[247] Transcript,
TF1-033,
[248] AFRC
Trial Judgment, paras 907-909.
[249] Ibid at para. 910.
[250] Kanu Appeal Brief,
para. 4.3.
[251] Prosecution Response
Brief, para. 4.37.
[252] Ibid at para. 4.41.
[253] Prosecution
Appeal Brief, para. 15.
[254] Ibid at paras
16, 19, 22.
[255]
AFRC Trial Judgment, paras 1633, 2113, 2117, 2121.
[256]
Ibid at paras 1634,
2113, 2117, 2121.
[257]
Ibid at paras 1450
(relating to recruitment of child soldiers); 1454 (relating to abductions and
forced labour); 1459 (relating to sexual slavery).
[258] Ibid at
para. 697 (emphasis added).
[259] Ibid at
para. 713.
[260] Ibid at para. 711.
[261] Prosecution Appeal
Brief, para. 590.
[262] Ibid at para. 587.
[263] Ibid at
para. 612.
[264] Ibid at
paras 612, 613, 614, 615.
[265] Ibid at
paras 614, 617, 621.
[266] Brima Response Brief,
para. 118; Kamara Response Brief, para. 164. The
Appeals Chamber notes that Brima and Kamara have submitted identical responses
to this Ground of Appeal.
[267] Brima Response Brief,
para. 118; Kamara Response Brief, para. 164.
[268] Brima Response Brief,
para. 119; Kamara Response Brief, para. 165.
[269] Brima
Response Brief, paras 120, 124-125; Kamara Response Brief, paras 166, 170-171.
[270] Kanu Response Brief,
para. 7.11.
[271] Ibid at
para. 7.18.
[272] AFRC Trial Judgment,
para. 697.
[273] Kupreškić Trial Judgment, para. 563. The category of “Other Inhumane
Act” was included in Article 6.c of the Nuremburg Charter to provide for any
loophole left open by other offences not specifically mentioned. It was
deliberately designed as a residual category as it was felt undesirable for
this category to be exhaustively enumerated. An exhaustive list would merely
create opportunities for evasion of the letter of the prohibition. See
also Stakić Appeal Judgment, para. 315; Blagojević Trial Judgment, para.
625; Rutaganda
Trial Judgment, para. 77; Kayishema Trial Judgment, para. 149.
[274] Blagojević Trial Judgment, para. 625; Akayesu Trial
Judgment, para. 585 (“The categories of crimes against
humanity are set out in Article 3, this category is not exhaustive. Any
act which is inhumane in nature and character may constitute a crime against
humanity, provided the other elements are met.”).
[275] The crime of “Other Inhumane
Acts” has been included in the following international legal instruments:
Charter of the International Military Tribunal, Article 6.c; Charter of the
International Military Tribunal for the Far East, Article 5.c; Control Council
Law No. 10, Article II.c; Statute of the International Criminal Tribunal for
the former Yugoslavia, Article 5.i; Statute of the International Criminal
Tribunal for Rwanda, Article 3.i; Rome Statute of the International Criminal
Court, Article 7.k. The crime of “Other Inhumane
Acts” is also referred to in the 1996 ILC Draft Code of Crimes Against the Peace and Security of Mankind, Article 18.k. See
also Stakić Appeal Judgment,
para. 315; Blagojević
Trial Judgment; Galić Trial
Judgment; Čelebići Trial
Judgment; Akayesu Trial Judgment; Tadić Trial Judgment.
[275] See AFRC Trial Judgment, para. 698 (defining “Other
Inhumane Acts” as “1. The perpetrator inflicted great suffering, or
serious injury to body or to mental or physical health, by means of an inhumane
act; 2. The act was of a gravity similar to the acts
referred to Articles 2.a to 2.h of the Statute; and 3. The perpetrator was
aware of the factual circumstances that established the character of the
gravity of the act.”). The Trial
Chamber’s definition mirrors the definition of “Other Inhumane Acts” in the
Rome Statute, Elements of Crimes, Article 7.1.k. The mens
rea for “Other Inhumane Acts” and the chapeau
elements are not at issue in this Appeal.
[276] Stakić Appeal Judgment, para. 317; Blagojević Trial
Judgment, para. 629; Krstić Trial Judgment, para. 523.
[277] Kajelijeli Trial Judgment, para. 936; Niyitegeka Trial Judgment, para.
465.
[278]Naletilić Trial
Judgment, para. 271; Vasiljević
Trial Judgment, para. 239; Blaškić Trial Judgment, para. 239; Tadić Trial Judgment, paras 730,
737, 744.
[279] Akayesu Trial Judgment, para. 697.
[280] Ibid at para. 697.
[281] Kvočka Trial Judgment, paras
206-209.
[282] See Kordić Trial Judgment, para. 800 (finding that conditions
varied from camp to camp but detained Muslims were used as human shields and
were forced to dig trenches); Galić
Trial Judgment, para. 599 (finding that there was a coordinated and protracted
campaign of sniping, artillery, and mortar attacks upon civilians); Tadić Trial Judgment, paras 730,
737, 744 (finding that there were several incidents of assaults upon and
beating of prisoners at a camp) and Niyitegeka
Trial Judgment, paras 462, 465 (finding that the accused was rejoicing when a
victim was killed, decapitated, castrated and his skull was pierced with a
spike).
[283] Galić Trial Judgment para. 153; Vasiljević Trial Judgment, para.
235; Krnojelac
Trial Judgment, para. 131; Čelebići Trial Judgment, para. 536;
Kayishema Trial Judgment, paras 150,
151.
[284] Statute, Article 2.g. See also Article 7.g of the ICC Statute
which lists “Rape, sexual slavery, enforced prostitution, forced pregnancy,
enforced sterilization, or any other form of sexual violence of comparable
gravity.” In contrast, Articles 3.g and 5.g of the ICTR and ICTY Statutes
respectively only provide for ‘rape’ as a crime against humanity of a sexual
nature.
[285] Blaškić Trial Judgment, para. 237, citing with approval J. Pictet, Commentary on the 1st Geneva Convention of
[286] AFRC
Trial Judgment, para. 704.
[287] Ibid at para. 713.
The Trial Chamber held that sexual slavery had the following elements: (i) The
perpetrator exercised any or all of the powers attaching to the right of
ownership over one or more persons, . . . or by imposing on them a similar
deprivation of liberty; (ii) the perpetrator caused such person or persons to
engage in one or more acts of a sexual nature; (iii) the perpetrator committed
such conduct intending to engage in the act of sexual slavery or in the
reasonable knowledge that it was likely to occur. AFRC Trial Judgment, para.
708. See also Rome Statute, Elements of Crimes, Article 7(1)(k).
[288] AFRC Trial Judgment, para. 708.
[289] Ibid at para. 711. In paragraph
697 of the AFRC Trial Judgment, the Trial Chamber found that “[i]n light of the
exhaustive category of sexual crimes particularised in Article 2.g of the
Statute, the offence of “Other Inhumane Acts,” even though residual, must
logically be restrictively interpreted as applying only to acts of a non-sexual
nature amounting to an affront to human dignity.”
[290] Prosecution Appeal
Brief, para. 614.
[291] Ibid at para. 613.
[292] AFRC Trial Judgment,
paras 711, 1079, 1084, 1088, 1103, 1108, 1121, 1130, 1165.
[293] For example one
witness was abducted as a ‘wife’ moments after her
parents were killed in front of her. See
AFRC Trial Judgment, paras 1078, 1088.
[294] AFRC Trial Judgment,
paras 1082, 1083, 1085, 1091, 1096, 1154, 1164, 1165.
[295] Ibid at
paras 1080, 1081, 1130, 1165.
[296]Ibid at paras 1157, 1161. See
also Doherty Partly Dissenting Opinion, paras 48, 49.
[297] See AFRC Trial Judgment, paras 1081, 1092.
[298] Ibid at para. 1115.
[299] Ibid at paras 1122, 1139, 1161.
[300] Ibid at paras 1138, 1141.
[301] Sebutinde Separate Concurring Opinion, paras 13, 15, quoting Prosecution Expert Report on
Forced Marriage.
[302] Doherty
Partly Dissenting Opinion, para. 53.
[303] Ibid at paras
48, 51 (stating that “[s]erious psychological and moral injury follows forced
marriage. Women and girls are forced to associate with and in
some cases live together with men whom they may fear or despise. Further, the
label ‘wife’ may stigmatise the victims and lead to their rejection by their
families and community, negatively impacting their ability to reintegrate into
society and thereby prolonging their mental trauma.”).
[304] Sebutinde Separate Concurring Opinion, paras 10, 12; Doherty Partly
Dissenting Opinion, para. 36.
[305] Sebutinde Separate
Concurring Opinion, para. 12.
[306] Prosecution Appeal
Brief, paras 602-604.
[307] Ibid at
paras 614, 617, 621.
[308] Ibid at
para. 624.
[309] Stakić Appeal Judgment, para. 315; Blagojević Trial Judgment, para.
624.
[310] AFRC
Trial Judgment, para. 698.
[311] Ibid at para. 726; Prosecution Appeal Brief, para. 653. With
respect to physical violence, the Indictment alleges that:
Count 10:
Violence to life, health and physical or mental well-being of persons, in
particular mutilation, a VIOLATION OF
ARTICLE 3 COMMON TO THE
In addition, or
in the alternative:
Count 11: Other
inhumane acts, a CRIME AGAINST HUMANITY,
punishable under Article 2.i. of the Statute.
In the Judgment the Trial Chamber
notes that the paragraphs preceding Counts 10 and 11 allege that the acts of
physical violence included mutilations (paras 59, 61-64) and beatings and
ill-treatment (para. 60).
[312]
Prosecution Appeal Brief, para. 652.
[313]
Ibid at paras 660,
663.
[314]
See supra, section III.D concerning
the Prosecution’s Sixth Ground of Appeal regarding the Trial Chamber’s finding
of duplicity in Count 7.
[315]
The Appeals Chamber notes that in alleging multiple forms of conduct in the
same count, Count 11 of this Indictment is in keeping with the construction of
counts in the Indictments before the ICTY. A review of indictments before the
ICTY reveals that charging multiple forms of conduct in the same count which
alleges the commission of the single offence of “Other Inhumane Acts” is an
accepted practice. Count 2 of the Indictment in Kvočka et al., which charged “Other Inhumane Acts,” alleged
murder, torture and beating, sexual assault and rape, harassment, humiliation
and psychological abuse, and confinement of persons. Prosecutor v. Kvočka et al.,
IT-98-30/1, Amended Indictment,
[316] AFRC Trial Judgment, para. 800.
[317] Prosecution Appeal Brief, paras 688-701.
[318] According to the Prosecution, the Trial Chamber
should not have entered a conviction under Article 6(1) or under Article 6(3)
for the conduct listed in Appendix E to the Prosecution Appeal Brief.
[319] Brima Response Brief, para. 134;
Kamara Response Brief, para. 180.
[320] Kanu Response Brief, para. 9.7.
[321] Ibid at para. 135-136; Kamara Response
Brief, paras 181-182.
[322] Orić Trial Judgment, paras 342-343.
[323] Prosecution Appeal Brief, para. 701.
[324] Kanu Response Brief, para. 9.11.
[325] Brima Response, para. 138; Kamara
Response Brief, para. 184.
[326] Kanu Response Brief, para. 9.19.
[327] The Practice is allowed in light of the fact that,
prior to the presentation of all the evidence, it is not possible to determine
to a certainty which of the charges brought against an accused will be proven,
if any. See Galic Appeal Judgment, para. 161; Čelebići Appeal Judgment,
para. 400; Kupreškić
Appeal Judgment, para. 385; Kunarac Appeal Judgment, para. 167; Naletilić Appeal Judgment, para.
103; Kayishema
Trial Judgment, para. 627; Akayesu Trial Judgment, para. 468.
[328] Galić
Appeal Judgment, para. 167. Unlike the present case, Galić was convicted
of murder as a crime against humanity under two separate counts, one based on
numerous incidents of sniping, another based on instances of shelling.
Galić’s arguments that these convictions were cumulative were dismissed on
the grounds that they were based on separate facts. It is clear to the Appeals
Chamber that the same conclusion would have been reached if the sniping and
shelling had been charged in the same count.
[329] Čelebići
Appeal Judgment, para. 763.
[330] Deronjić
Sentencing Appeal Judgment, para. 106.
[331] Blaškić
Appeal Judgment, para. 92 (emphasis added). See
also Jokić Sentencing Appeal
Judgment, para. 24 (finding that the rule applies to
concurrent convictions “in relation to the same counts based on the same
facts.”).
[332] See Stanković Form of the Indictment
Decision (“Within the limits of the rules governing indictments, the
Prosecution may choose between putting forth multiple detailed counts, or fewer counts combining specific allegations. This
is evident from the Prosecution’s practice at this Tribunal”); Čelebići Appeal Judgment,
para. 400.
[333] This is the practice when, for example, an accused
is convicted for personally committing some instances of a crime and aiding and
abetting other instances of the same substantive crime charged within a single
Count. See Limaj Trial Judgment,
para. 741 (finding the Accused Haradin Bala guilty, inter alia, of “Count 6: Cruel treatment, a violation of the laws
or customs of war, under Article 3 of the Statute, for having personally
mistreated detainees L04, L10 and L12, and aided another episode of
mistreatment of L04, and for his personal role in the maintenance and
enforcement of inhumane conditions of detention in the Llapushnik/Lapusnik
prison camp.”).
[334] See Naletilić
Trial Judgment, paras 627-628 (finding Martinović
responsible under Article 7.1 for some instances of plunder, and responsible
under Article 7.3 for separate instances of plunder, all charged under the same
Count) aff’d Naletilić Appeal Judgment, paras 583-586.
[335] Naletilić
Appeal Judgment, para. 585, citing Kunarac Appeal
Judgment, para. 169.
[336]
Brima Appeal Brief, para. 71.
[337]
Ibid at para.
72.
[338]
Ibid at para.
73; Rule 45(B)(iii) of the Rules.
[339] Brima
Appeal Brief, para. 81.
[340] Prosecution Response, para.
2.2.
[341] Ibid at para. 2.2.
[342] See Article 17 of the Statute; Rule 26bis of the Rules.
[343] Article 17(4)(b) of the Statute.
[344] Rule 45(b)(iii) of the Rules.
[345] Directive on the Assignment of Counsel,
[346] Brima Appeal Brief, para. 81.
[347] Ibid at para. 84.
[348] Ibid at para. 153.
[349] Kamara Appeal Brief,
para. 77.
[350] Ibid at paras 99, 101.
[351] Prosecution Response Brief, para. 4.41.
[352] See supra paras 127-128,
153.
[353] Kamara
Appeal Brief, para. 156.
[354] Ibid at para. 165.
[355] Ibid at para. 166.
[356] AFRC Trial Judgment, para. 776.
[357] Simić
Appeal Judgment, para. 86; Blaškić Appeal Judgment, para. 50.
[358] Ibid at para. 50.
[359] Kamara Appeal Brief, para. 166.
[360] Aleksosvski
Appeal Judgment, para. 162; Krnojelac Appeal Judgment, para. 51; Brđanin Appeal Judgment, para.
484.
[361] AFRC Trial Judgment, para. 776.
[362] Ibid at paras 1940-1941.
[363] Ibid at paras 1939-1940.
[364] Ibid at para. 1941.
[365] But see Aleksovksi Appeal Judgment, para. 164 (concluding that the appellant was aware of the relevant state
of mind of the perpetrators because he had seen the injuries inflicted upon the
victims.).
[366] Trial Judgment, para.
1940.
[367] Kamara Appeal Brief, paras 173,
175.
[368] Ibid at paras 173, 179.
[369] AFRC Trial Judgment, para. 924.
[370] Kamara Appeal Brief,
para. 191 (emphasis removed).
[371]
AFRC Trial Judgment, paras 1893, 1928, 1950, 1969.
[372]
Ibid at paras
1865-1866.
[373]
Ibid at paras 1873,
1884-1885.
[374]
Ibid at para.
1926.
[375]
Ibid at paras
1958-1959.
[376]
Ibid at para.
1959.
[377]
Ibid at para.
500.
[378]
Ibid at paras
1944-1948.
[379] Kamara
Appeal Brief, para. 197.
[380] Ibid at
para. 213.
[381]
Ibid at paras
218-219.
[382]
Prosecution Response Brief, paras 5.38-5.39.
[383] Ibid at
paras 5.38-5.39.
[384]
Ibid at paras
5.34-5.37.
[385]
Ibid at paras
5.56-5.61.
[386]
Čelebići Appeal Judgment,
para. 195.
[387]
Aleksovski Appeal Judgment, para. 76, Bagilishema Appeal
Judgment, para. 50, citing Čelebići Appeal Judgment,
para. 192.
[388]
Bagilishema Appeal Judgment, para.
50.
[389]
Čelebići Appeal Judgment,
para. 256.
[390]
Bagilishema Appeal Judgment, para. 50, citing Aleksovski Appeal Judgment, para.
76.
[391]
Kamara’s Appeal Brief, para. 194.
[392]
Čelebići Appeal Judgment,
para. 196.
[393]
Kamara Appeal Brief, para. 208.
[394]
AFRC Trial Judgment, paras 1881-1883.
[395]
Ibid at para.
1886.
[396]
Ibid at para. 1865.
[397]
Ibid at para. 1865.
[398] Ibid at
paras 1866, 1885.
[399] Ibid at para. 1867.
[400]
Ibid at para.
452.
[401]
Ibid at para.
452.
[402]
Ibid at para.
1867.
[403]
Ibid at paras
1867-1868.
[404] See Orić Trial Judgment, para. 313 (“If a superior is proven
to have possessed the effective control to prevent or punish relevant crimes,
his or her own individual criminal responsibility is not excluded by the
concurrent responsibility of other superiors”), citing Blaškić Trial
Judgment, paras 296, 302, 303; Krnojelac Trial
Judgment, para. 93; Naletilić Trial Judgment, para. 69; Halilović Trial Judgment, para.
62.
[405] AFRC
Trial Judgment, para. 1870.
[406] Ibid at
paras 451, 460-461.
[407]
Kamara Appeal Brief, paras 197-198.
[408]
Ibid at paras
197-198.
[409]
Transcript, TF1-334,
[410]
AFRC Trial Judgment, para. 1869 (emphasis added).
[411]
Kamara Appeal Brief, paras 213-217.
[412]
Ibid at para.
216.
[413]
Halilović Trial Judgment, para.
58.
[414]
AFRC Trial Judgment, paras 1924-1925.
[415]
Kamara Appeal Brief, paras 213-217.
[416]
Ibid at para.
215.
[417]
Ibid at paras
220-222.
[418]
Čelebići Appeal Judgment,
para. 498; Kupreškić
Appeal Judgment, para. 39; Kordić Appeal Judgment, para. 382.
[419] AFRC Trial Judgment,
para. 111.
[420]
Kamara Appeal Brief, para. 219.
[421]
AFRC Trial Judgment, para. 1945.
[422]
Ibid at paras
1945-1948.
[423]
Kanu Appeal Brief, para. 1.1.; AFRC Trial Judgment, paras 640-659.
[424]
Kanu Appeal Brief, para. 1.1.; AFRC Trial Judgment, paras 640-659.
[425]
Ibid at para.
1.4.
[426]
Ibid at para.
1.5.
[427]
Ibid at para.
1.10.
[428]
Prosecution v. Brima, Fofana and, Kondewa,
SCSL-03-11-PT, Trial Chamber I, Decision on the Preliminary Defence Motion on
the Lack of Personal Jurisdiction Filed on Behalf of Accused Fofana, 3 March
2004.
[429]
Ibid at para.
1.16.
[430]
Ibid at para.
1.21.
[431]
Ibid at para.
1.25.
[432]
Ibid at para.
1.28.
[433]
Prosecution Response Brief, para. 2.40.
[434]
Ibid at para.
2.43.
[435]
Ibid at para.
2.45.
[436]
Ibid at paras 2.46,
2.53.
[437]
Ibid at para.
2.47.
[438]
Ibid at para.
2.47.
[439]
Ibid at paras
2.48-2.50.
[440]
Ibid at para.
2.56.
[441]
Ibid at para.
2.56.
[442]
Prosecution v. Brima,
Kamara and Kanu, SCSL-2004-16-A, Submissions in Reply – Kanu Defence,
[443] Prosecution
Response Brief, paras 2.52, 2.53.
[444] Kanu Appeal Brief, paras 5.6-5.8,
6.2.
[445] Ibid
at paras 5.7, 6.3.
[446] Prosecution Response Brief, para. 5.100.
[447] Čelebići
Appeal Judgment, para. 197.
[448] Ibid
at para. 256; Bagilishema Appeal Judgment, para. 51, citing Musema Trial Judgment, para. 135.
[449] Čelebići
Appeal Judgment, para. 266.
[450] Kanu Appeal Brief, para. 7.1.
[451] Ibid
at para. 7.8.
[452] Norman Child Recruitment Decision, paras 52-53.
[453] AFRC Trial Judgment, para. 2095.
[454] Ibid
at paras
2096-2098.
[455] Kanu Appeal Brief, para. 9.1-9.6.
[456] Ibid
at para. 9.6.
[457] Response Brief of Prosecution, paras 6.61, 6.64, 6.66.
[458] AFRC Trial Judgment, para. 765.
[459] Ibid
at para. 765.
[460] Ibid
at para. 766.
[461] Ibid
at para. 768; Kordić Appeal Judgment, para. 26.
[462] AFRC Trial Judgment, para. 766.
[463] Ibid
at para. 2092.
[464] Ibid
at para. 2093.
[465] Ibid
at para. 2094.
[466] Ibid
at paras 1165,
1389.
[467] Transcript, TF1-334,
[468] AFRC Trial Judgment, para. 1164.
[469]
AFRC Sentencing Judgment, Disposition.
[470]
Article 19, Statute of the
[471] Babić Judgment on Sentencing Appeal, para. 44. See also, Nikolić Sentencing Appeal Judgment, para. 95. Blagojević Appeal Judgment para. 137; Brđanin Appeal
Judgment, para. 500; Bralo Sentencing Appeal Judgment, para. 9;
Galić Appeal Judgment, para.
394.
[472]
Brima Appeals Brief, paras 180-181.
[473]
Kamara Appeals Brief, para. 246.
[474]
Ibid
at para.
249.
[475] Brima
Appeal Brief, paras 184,182; Kamara Appeal Brief, para. 237; Kanue Appeal Brief, paras 11.1, 11.9.
[476]
Brima asserts that the Trial Chamber did not consider his lack of criminal
convictions, good reputation in the Army and contribution to the peace process
(Brima Appeal Brief, para. 184); Appellant Kanu asserts that the Trial Chamber
did not take into consideration his relatively low position in the AFRC and
that the length of time it took to conclude the proceedings caused him
unbearable anxiety and mental anguish (Kanu Appeal Brief, para. 11.6, 11.9).
[477]
Simić Appeal Judgment, para. 249; Kvočka Appeal
Judgment, para. 675.
[478]
Sentencing Judgment, para. 23.
[479]
Deronjić Trial Judgment, para. 106-107; Nikolić
Appeal Judgment, para. 61; Stakić Appeal Judgment, para. 411; Krajisnik Trial Judgment, para. 1140; Bralo Trial
Judgment, para. 27.
[480]
Nikolić Appeals Judgment, para.
61.
[481]
Ibid at para.
66.
[482] AFRC Sentencing Judgment, paras 44, 53,
57, 72, 75, 82, 85, 96, 107, 112.
[483] Kanu Appeal Brief, para. 8.1.
[484] Ibid at para. 8.3.
[485] Prosecution Response Brief, para. 3.56.
[486] AFRC Sentencing Judgment, para. 12.
[487] Ibid at para. 12.
[488] Ibid at para. 34.
[489] Ibid at
paras 2113, 2117, 2121.
[490] Ibid at
paras 2115, 2119.
[491] Ibid at
para. 95.
[492] Ibid at
paras 2116, 2120, 2123.
[493] Prosecutor v. Brima, Kamara and Kanu,
SCSL-2004-16-A, Urgent Joint Defence Request for Extension of Time Limit Pursuant to Rule 116 for Filing of
Notice of Appeal and Appeal Submissions, 13 July 2007.
[494] Prosecutor v. Brima, Kamara and Kanu,
SCSL-2004-16-A, Decision on Request for Extension of Time Pursuant to Rule 116
of the Rules of Procedure and Evidence, 25 July 2007.
[495] Prosecutor v. Brima, Kamara and Kanu,
SCSL-2004-16-A, Kamara Defence Notice of Appeal, 2 August 2007; Prosecutor v. Brima, Kamara and Kanu,
SCSL-2004-16-A, Public Brima Defence Notice of Appeal 2 August 2007; Prosecutor v. Brima, Kamara and Kanu,
SCSL-2004-16-A, Kanu’s Notice and Grounds of Appeal, 2 August 2007; Prosecutor v. Brima, Kamara and Kanu,
SCSL-2004-16-A, Public Prosecution’s Notice of Appeal, 2 August 2007.
[496] Prosecutor v. Brima, Kamara and Kanu,
SCSL-2004-16-A, Urgent Joint Defence and Prosecution Motion for an Extension of
Time for the Filing of Appeal Briefs,
[497] Prosecutor v. Brima, Kamara and Kanu, SCSL-2004-16-A, Decision on
Urgent Joint Defence and Prosecution Motion for an Extension of Time for the
filing of Appeals Briefs, 10 August 2007.
[498] Prosecutor v. Brima, Kamara and Kanu,
SCSL-2004-16-A, Prosecution Motion for Voluntary Recusal or Disqualification of
Justice Robertson,
[499] Prosecutor v. Brima, Kamara and Kanu,
SCSL-2004-16-A, Public Order Extending Time for Filing a Response to
‘Prosecution Motion for Voluntary Recusal or Disqualification of Justice
Robertson,’
[500] Prosecutor v. Brima, Kamara and Kanu, SCSL-2004-16-A, Public
Decision on Prosecution Motion for Voluntary Recusal or Disqualification of
Justice Robertson,
[501] Prosecutor v. Brima, Kamara and Kanu,
SCSL-2004-16-A, Urgent Prosecution Motion for an Extension of the Page Limit
for its Appeal Brief,
[502] Prosecutor v. Brima, Kamara and Kanu, SCSL-2004-16-A, Decision on
Urgent Prosecution Motion for an Extension of the Page Limit for its Appeal
Brief,
[503] Prosecutor v. Brima, Kamara and Kanu, SCSL-2004-16-A, Kamara
Response to the Prosecution Appeal Brief, 4 October 2007; Prosecutor v. Brima, Kamara and Kanu, SCSL-2004-16-A, Respondent’s
Submissions – Kanu Defence, 4 October 2007; Prosecutor
v. Brima, Kamara and Kanu, SCSL-2004-16-A , Brima Response to Prosecution’s
Appeal Brief, 4 October 2007; Prosecutor
v. Brima, Kamara and Kanu, SCSL-2004-16-A, Response Brief of the
Prosecution, 4 October 2007.
[504] Prosecutor v. Brima, Kamara and Kanu, SCSL-2004-16-A, Submissions
in Reply – Kanu Defence, 9 October 2007; Prosecutor
v. Brima, Kamara and Kanu, SCSL-2004-16-A, Reply Brief of the Prosecution,
9 October 2007.