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TRIAL
CHAMBER II
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Before: |
Justice Richard Lussick, Presiding Judge Justice
Teresa Doherty Justice Julia Sebutinde |
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Registrar: |
Mr. Lovemore Munlo |
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Date: |
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PROSECUTOR |
Against |
Alex
Tamba Brima Brima
Bazzy Kamara Santigie
Borbor Kanu (Case No.SCSL-04-16-T) |
DECISION
ON DEFENCE MOTIONS FOR JUDGEMENT
OF
ACQUITTAL PURSUANT TO RULE 98
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Office of the Prosecutor: |
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Defence Counsel for Alex Tamba Brima: |
|
Christopher Staker James C. Johnson Lesley Taylor Karim
Agha Nina
Jorgenson James
R. Hodes Marco Bundi |
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Kojo Graham Glenna Thompson Defence Counsel for Brima Bazzy Kamara: Andrew Daniels Mohamed Pa-Momo
Fofanah Defence Counsel for Santigie Borbor Kanu: Geert-Jan Alexander Knoops Carry Knoops Abibola E.
Manly-Spain |
CONTENTS
II... Applicable
Standard under Rule 98 of the Rules
III. LOCATIONS
IN THE INDICTMENT OVER WHICH THE DEFENCE HAS RAISED ISSUE
Locations in respect of which the Prosecution led no
evidence:
Locations the names of which are spelt differently:
IV. THE
“GREATEST RESPONSIBILITY” REQUIREMENT..
V... Elements
of Crimes Against Humanity PURSUANT TO Article 2 of The Statute
VIII. REVIEW
OF THE COUNTS AND ISSUES RAISED
1. Counts 1 and 2: Terrorising the Civilian
Population and Collective Punishment
1.1. Count 1: Acts
of Terrorism (Article 3.d. of the Statute)
1.2. Count 2: Collective Punishments (Article 3(b) of the
Statute)
2. Counts 3, 4 and 5: Crimes Relating to
Unlawful Killings
2.1. Count 3:
Extermination (Article 2.b. of the Statute)
2.2. Count 4:
Murder (Article 2.a. of the Statute)
2.3. Count 5:
Murder (Article 3.a. of the Statute)
2.4. Submissions
for Counts 3, 4 and 5
2.5. Findings for
Counts 3, 4 and 5
Findings with regard to Count 3 (Extermination):
Findings with regard to Count 4 (Murder):
Findings with regard to Count 5 (Murder):
3.
Counts 6, 7, 8 and 9: Crimes Relating To Sexual Violence
3.1. Count 6: Rape
(Article 2.g of the Statute)
3.2. Count 7:
Sexual Slavery and Any Other Form of Sexual Violence (Article 2.g. of the
Statute)
Elements of Any Other Form of Sexual Violence:
3.3. Count 8:
Other Inhumane Act (Article 2.i of the Statute)
3.4. Count 9:
Outrages Upon Personal Dignity (Article 3.e. of the Statute)
3.5. Submissions
for Counts 6, 7, 8 and 9
3.6. Findings for
Counts 6, 7, 8 and 9
Findings for Count 7 (Sexual Slavery and Any Other Form of Sexual Violence):
Findings for Count 8 (Any Other Inhumane Acts):
Findings for Count 9 (Outrages Upon Personal Dignity):
4. Counts 10 And 11: Crimes Relating To
Physical Violence
4.1. Count 10:
Mutilation (Article 3.a. of the Statute)
4.2. Count 11:
Other Inhumane Acts (Article 2.i. of the Statute)
4.3. Submissions
for Counts 10 and 11
4.4. Findings for
Counts 10 and 11
Findings with regard to Count 10 (Mutilation):
Findings with regard to Count 11 (Other inhumane acts):
5. Count 12: Crimes Relating to Child Soldiers
6. Count 13: Abductions and Forced Labour
7. Count 14: Crimes Relating to Burning and
Looting
7.1. Count 14:
Pillage (Article 3.f. of the Statute)
7.2. Destruction
by Burning of Civilian Property:
IX. INDIVIDUAL
CRIMINAL RESPONSIBILITY UNDER THE STATUTE
8. Individual Criminal Responsibility under
Article 6.1 of the Statute
9. Individual Criminal Responsibility by
Participation in a Joint Criminal Enterprise
10. Individual Criminal Responsibility under
Article 6.3 of the Statute
trial chamber II (“Trial
Chamber”) of the
SEISED of the Joint Legal
Part of the Defence Motion for Judgement of Acquittal Under Rule 98 filed on 13
December 2005 (“Joint Legal Part”); the Brima Motion For Acquittal Pursuant to
Rule 98 filed on 12 December 2005 (“Brima Motion”); the Defence Motion for
Judgement of Acquittal of the Second Accused, Brima Bazzy Kamara filed on 12
December 2005 (“Kamara Motion”) and the Kanu Factual Part Defence Motion for
Judgement of Acquittal Under Rule 98 filed on 13 December 2005 (“Kanu Motion”);
NOTING the Prosecution
Response to Defence Motions For Judgement of Acquittal Pursuant to Rule 98,
filed on
NOTING the Joint Legal Reply
to Prosecution Response to Defence Motions For Judgement of Acquittal, filed on
30 January 2006 (“Joint Defence Reply”);
the Brima Reply to Prosecution Response to Defence Motions For Judgement of
Acquittal, filed on 30 January 2006 (“Brima Reply”); the Kamara Reply to
Prosecution Response to Defence Motions For Judgement of Acquittal, filed on 30
January 2006 (“Kamara Reply”); and the Confidential Kanu Reply to Prosecution
Response to Defence Motions For Judgement of Acquittal, filed on 27 January
2006 (“Kanu Reply”);
MINDFUL of the Scheduling
Order on Filing of a Motion for Judgement of Acquittal issued by the Trial
Chamber on 30 September 2005;[1]
MINDFUL of the provisions of
the Statute of the Special Court for Sierra Leone (“the Statute”), in
particular Articles 1, 2, 3, 4, 5, 6 thereof and the provisions of the Rules of
Procedure and Evidence of the Special Court (“the Rules”), in particular Rule
98 as amended on 14 May 2005;
MINDFUL of the provisions of
international instruments on International Humanitarian Law relating to armed
conflict, war crimes and crimes against humanity;
HEREBY DECIDES AS
FOLLOWS based
solely on the written submissions of the parties pursuant to Rule 73(A) of the
Rules.
1.
Alex Tamba Brima, Brima Bazzy Kamara and
Santigie Borbor
Kanu, the three Accused persons in this case, are jointly indicted and tried on
a fourteen-Count Indictment that alleges offences relating to Crimes Against
Humanity, Violations of Article 3 Common to the Geneva Conventions and to Additional
Protocol II and other Serious Violations of International Humanitarian Law, in
violation of Articles 2, 3, and 4 of the Statute of the Special Court for
Sierra Leone.[2]
2.
Following
indications that each of the Defence teams intended to file a motion for
Judgement of Acquittal at the close of the case for the Prosecution, the Trial
Chamber on
3.
The
Prosecution formally closed its case on
4.
Following
the closure of the case for the Prosecution, the Defence filed the Brima Motion
and the Kamara Motion on
5.
Similarly,
in the interests of justice the Trial Chamber accepts the pleadings in the
Kamara Motion. We would however, point out the correct procedure for correcting
or curing a deficient filing and insist that in future, the Court Management
Section should strictly comply with this procedure rather than accepting the
deficient filing as they did in this case. Article 11 of the Practice Direction
on Filing of Documents Before the Special Court for
“Article 11- Deficient Submissions
(A)
The Court Management Section shall be
responsible for verifying compliance with the requirements laid down in
Articles 4 to 9 of this Practice direction.
(B)
The Court Management Section shall
inform the Party, State, organisation or person who submitted a deficient
document of the deficiency and request that it be corrected. The Court
Management Section shall file the document only after the mistakes have been
corrected. If the corrected document is filed outside the time limits set
out in the Rules as a result of the deficiency, such document shall be filed in
accordance with Article 12 of this Practice Direction.” [Emphasis added]
6.
Rule 98 of the Rules, as amended on
“Motion for Judgment of Acquittal
If
after the close of the case for the prosecution, there is no evidence capable
of supporting a conviction on one or more counts of the indictment, the Trial
Chamber shall enter a judgment of acquittal on those counts.”
7.
This
provision is similar to the equivalent Rule 98bis of the ICTY Rules, as amended
on
“Motion for Judgement of Acquittal
At
the close of the Prosecutor’s case, the Trial Chamber shall, by oral decision
and after hearing the oral submissions of the parties, enter a judgement of
acquittal on any count if there is no evidence capable of supporting a
conviction.”
8.
In
our view, there is no contextual difference between “no evidence capable of
supporting a conviction” and “evidence insufficient to sustain a conviction”,
which was the wording used in the ICTY Rule 98bis (B) prior to the above-mentioned amendment (and is still the
wording used in ICTR Rule 98bis), and
in respect of which a considerable body of jurisprudence has been developed.
The plainer language of the amended form of the Rule leaves no doubt that what
must be considered by the Trial Chamber is not the reliability or credibility
of the evidence, but merely its capability of supporting a conviction. If one
possible view of the facts might support a conviction, then the Trial Chamber
cannot enter a judgement of acquittal.
9.
The
ICTY Trial Chamber in Oric stated
that “the last amendment to Rule 98bis does not in any way change the standard
of review to be applied by the Trial Chamber in its Rule 98bis exercise which
therefore remains that set out and repeatedly applied by these Trial Chambers,
set out in the Jelisic Appeal Judgement.”[5]
10.
In
the following passage from the Jelisic
Appeal Judgement, the ICTY Appeals Chamber enunciated the applicable
standard of proof, which has since been applied by numerous international
tribunals.[6]
“The
reference in Rule 98bis to a situation in which ‘evidence is insufficient to sustain
a conviction’ means a case in which, in the opinion of the Trial Chamber, the
prosecution evidence, if believed, is insufficient for any reasonable trier of
fact to find that guilt has been proved beyond reasonable doubt. In this
respect, the Appeals Chamber follows its recent holding in the Delalic appeal
judgement, where it said: “[t]he test to be applied is whether there is
evidence (if accepted) upon which a reasonable tribunal of fact could be
satisfied beyond reasonable doubt of the guilt of the accused on the particular
charge in question”. The capacity of the prosecution evidence (if accepted) to
sustain a conviction beyond reasonable doubt by a reasonable trier of fact is
the key concept; thus the test is not whether the trier would in fact arrive at
a conviction beyond reasonable doubt on the prosecution evidence (if accepted)
but whether it could. At the close of the case for the prosecution, the Chamber
may find that the prosecution evidence is sufficient to sustain a conviction
beyond reasonable doubt and yet, even if no evidence is subsequently adduced,
proceed to acquit at the end of the trial, if in its own view of the evidence,
the prosecution has not in fact proved guilt beyond reasonable doubt.”[7]
11.
With
regard to the need for the Trial Chamber to assume that the prosecution
evidence is true for the purpose of making a determination under the Rule, it was said in Bagasora[8] that: “In assessing whether there is
sufficient evidence upon which a reasonable trier of fact could, at the end of
the trial, enter a conviction, the
Chamber must ‘assume that the prosecution’s evidence [is] entitled to
credence unless incapable of belief’.[9]
Accordingly, the object of the inquiry under Rule 98bis is not to make
determinations of fact having weighed the credibility and reliability of the
evidence; rather, it is simply to determine whether the evidence – assuming
that it is true – could not possibly sustain a finding of guilt beyond
reasonable doubt. That will only be the case where there is no evidence
whatsoever which is probative of one or more of the required elements of a
crime charged, or where the only such evidence is incapable of belief. To be
incapable of belief, the evidence must be obviously incredible or unreliable;
the Chamber should not be drawn into fine assessments of credibility or
reliability. Needless to say, a finding that the evidence is not obviously
incredible does not foreclose the Chamber, at the end of the trial, from
finding that the evidence is, in fact, neither credible nor reliable.”
12.
In
applying the above-mentioned test, it is not necessary under the Rule for the
Trial Chamber to inquire into the sufficiency of the evidence in relation to
each paragraph of the indictment. There is no need, at the Rule 98 stage, to
examine whether each paragraph of the Indictment is supported by the
Prosecution evidence. Rather, the evidence should be examined in relation to
the counts. Rule 98 requires the Trial Chamber to determine only whether “there
is no evidence capable of supporting a conviction on one or more counts
of the indictment” and to enter a “judgment of acquittal on those counts”.[10]
13.
It
is important to stress, as was done by the Trial Chamber in Milosevic, that,
“a
ruling that there is sufficient evidence to sustain a conviction on a
particular charge does not necessarily mean that the Trial Chamber will, at the
end of the case, return a conviction on that charge; that is so because the
standard for determining sufficiency is not evidence on which a tribunal should
convict, but evidence on which it could convict. Thus if, following a ruling
that there is sufficient evidence to sustain a conviction on a particular
charge, the Accused calls no evidence, it is perfectly possible for the Trial
Chamber to acquit the Accused of that charge if, at the end of the case, it is
not satisfied of his guilt beyond reasonable doubt.”[11]
14.
The
essential function of the Rule was stated by the ICTY in the cases of Strugar and Hadzihasanovic. The Trial Chambers observed as follows:
“It
is worth noting the extent and frequency to which Rule 98bis has come to be
relied on in proceedings before this Tribunal, and the prevailing tendency for
Rule 98bis motions to involve much delay, lengthy submissions, and therefore an
extensive analysis of evidentiary issues in decisions. This appears to be in
contrast to the position typically found in common law jurisdictions from which
the procedure is derived, While Rule 98bis is an important procedural
safeguard, the object and proper operation of the Rule should not be lost sight
of. Its essential function is to separate out and bring to an end only those
proceedings in respect of a charge for which there is no evidence on which a
Chamber could convict, rather than to terminate prematurely cases where the
evidence is merely weak”.[12]
15.
The
factual findings in this Decision in relation to the 14 counts in the
Indictment are reached using the above-mentioned Rule 98 standard, namely,
whether there is evidence, if believed, upon which a reasonable tribunal of
fact could be satisfied beyond reasonable doubt of the guilt of the accused on
the particular charge in question.
Locations in respect of which the
Prosecution led no evidence:
16.
In
their various submissions Defence Counsel for the three accused, cited a number
of locations in the Indictment in respect of which the Prosecution failed to
adduce any evidence of the crimes alleged to have been committed at those
locations.[13]
17.
The
Prosecution while conceding that it has not led evidence with respect to all
geographic locations pleaded at the sub-District level in the Indictment and in
particular in relation to the locations listed in Annex A to the Prosecution
Response, argued that it is not necessary to do so in order to prove each
particular Count. The Prosecution submitted that “where a single count in the
Indictment charges an Accused with criminal responsibility in respect of more
than one incident, the Trial Chamber is not required to make a determination of
whether there is sufficient evidence to sustain a conviction for each separate
paragraph of, or location in the Indictment”.[14] The Prosecution argued further that
it need not prove every particular set out in the Indictment and that it had
led evidence of each count which was sufficient for a reasonable
tribunal of fact to convict the three Accused.[15]
18.
The
Defence disputed this argument on the basis that the Prosecution is required to
prove every particular set out in the Indictment so as to enable the Accused to
defend themselves. Relying on the position adopted by the respective Tribunals
in the cases of Prosecutor v. Sam Hinga
Norman et al.,[16] and Prosecutor v. Jelisic[17], Defence Counsel argued that the Trial
Chamber is duty bound under Rule 98 of the Rules, to enter a Judgment of
Acquittal in favour of each of the accused in respect of each of those
locations and to strike the locations from the Indictment and that, “omitting
to strike these particular locations from the Indictment at this stage of the
proceedings would put the Defence in the peculiar position of adducing evidence
to refute the charges thereto, whilst no evidence has been presented by the
Prosecution that anything did happen there. This would unquestionably lead to a
delay in the procedure; whilst striking them from the Indictment would not
result in any public prejudice to the Prosecution.”[18]
19.
We
note that when citing locations where the various criminal acts are alleged to
have taken place the language used in the particulars of the Indictment is not
exhaustive and often uses the preposition “including” when referring to those
locations.[19]
Given the “widespread” nature of the alleged crimes, it would in our view, be
impracticable for the Indictment to name exhaustively every single location throughout
the
20.
We
note that the locations specified in Annex A to the Prosecution Response are
all within Districts named in the Counts in question. We also note that in all
cases, the Prosecution has led evidence in relation to all the other locations
specified in the Indictment. In some instances evidence was led in relation to
villages or locations that were not specified in the Indictment but which are
located within the Districts pleaded. Ultimately, the Trial Chamber will take
all this evidence into account in determining whether or not the Prosecution
evidence in relation to each Count is capable of supporting a conviction
against the accused on that count.
21.
The
Trial Chamber is further of the view that under Rule 98, we are required to
determine the evidence in relation to the counts of the Indictment, and
to enter a judgement of acquittal, if appropriate, on a count – not on
an item of particulars. We do not consider that we are empowered by Rule 98 to
break a Count down to its particulars supplied in the Indictment and then to
enter a judgement of acquittal in respect of any particular which has not been
proved; nor would it be practical to do so. We note the Prosecution concessions
with regard to various locations for which no evidence was adduced and, in our
view, that is sufficient to cover the situation.
22.
The
present case is not one in which the Accused can say that without a judgement
of acquittal in respect of the said locations they are incapable of knowing
which of the various heads of liability initially alleged they need no longer
contest. We do not think that the Defence can seriously claim that, without a
formal judgement of acquittal being entered in respect of the contested
locations, it would be put in the position of having to lead evidence to refute
the charges when there was no evidence “that
anything did happen there”. Why would any party to a criminal proceeding
think it necessary to lead evidence to refute something that never happened? It
goes without saying that the Defence will not be expected to call evidence
concerning locations about which no evidence has been given.
Locations the names of which are spelt
differently:
23.
In
a related issue, Defence Counsel for the accused Kanu submitted that,
“On
several occasions in its Response, the Prosecution seems to assert that
different names such as Mambona and Mamoma, Willifeh and Wollifeh, Mandaha and
Mandaya, Wendedu and Wondedu refer to the same villages. The Defence submits
that this is not the case…names of villages throughout the country or district
can be almost identical, but still different places. The Prosecution has
adduced no geographical evidence supporting its allegation that such names
which are similar , but not identical, refer to the same location. Therefore,
locations without supporting evidence referring to exactly the same village name
should be struck from the Indictment.”[20]
24.
We
note that Counsel raised this as a new issue in the Kanu Reply thereby
technically denying the Prosecution an opportunity to respond thereto. This is
a practice this Trial Chamber has consistently discouraged.
25.
Regarding
this submission, we do not consider striking out the names of these locations
to be an appropriate or desirable remedy. We are mindful of the fact that due
to the variety of vernacular languages and dialects generally spoken in
26.
Article
1 of the Statute makes provisions for the Competence of the
“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.”
27.
Article
15.1. of the Statute places the responsibility for prosecuting the persons
mentioned in Article 1.1. on the Prosecutor. Article 15.1. states:
“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
28.
The
Defence argued that the specific reference to “…persons who bear the greatest responsibility …” in Article 1(1)
and Article 15 of the Statute amounts to a limitation on the Court’s
jurisdiction as to which persons may or may not be prosecuted and creates an
evidentiary burden to be satisfied by the Prosecution at the stage of a Motion
for Judgement of Acquittal brought under Rule 98. The Defence submitted that
this wording amounts to a more limited personal jurisdiction which superseded a
broader formulation of “persons most
responsible” suggested by the Secretary General.[21]
The Defence further submitted that the Prosecution has not adduced evidence
fulfilling the greatest responsibility requirement because “the evidence introduces the existence of
genuine prominent individuals bearing greatest responsibility, other than the
Accused.” [22]
29.
The
Prosecution disputed that the “greatest responsibility” formulation amounts to
a jurisdictional threshold and contends that the question of whether or not an
Accused is one of the persons who bear the greatest responsibility for the said
violations should be determined after all the evidence has been heard and is
not an issue correctly addressed at the Rule 98 stage.[23] In the alternative, the Prosecution submitted
that on the evidence presently before the Trial Chamber, a reasonable tribunal
of fact could find that each of the Accused is amongst those bearing the
greatest responsibility for serious violations of international humanitarian
law in
30.
The
same jurisdictional issue was brought before Trial Chamber I by way of a
preliminary motion under Rule 72. Trial Chamber I found that
“the
issue of personal jurisdiction is a jurisdictional requirement, and while it
does of course guide the prosecutorial strategy, it does not exclusively
articulate prosecutorial discretion, as the Prosecution has submitted.” [25]
Trial Chamber I went on to
conclude that
“in
the ultimate analysis, whether or not in actuality the Accused is one of the
persons who bears the greatest responsibility for the alleged violations of
international humanitarian law and Sierra Leonean law is an evidentiary matter
to be determined at the trial stage.”[26]
31.
In
the present case, no preliminary motion was filed under Rule 72 in relation to
the jurisdictional issue. We are of the view that the question of whether the
reference to “persons who bear the
greatest responsibility” creates a jurisdictional requirement rather than a
prosecutorial discretion, is not a matter that is within the scope of Rule 98
and we will not consider it here. However, we can at this stage consider the category
of persons contemplated by Article 1.1. and whether there is evidence according
to the Rule 98 standard that would place any of the Accused within that category.
32.
The
“most responsible” formulation suggested by the Secretary General of the United
Nations was rejected by the Security Council, which insisted instead upon the
“greatest responsibility” formulation. Subsequently, the Secretary General
expressed the following view on the persons encompassed by Article1.1.:
“Members
of the Council expressed preference for the language contained in Security
Council resolution 1315 (2000) extending the personal jurisdiction of the Court
to “persons who bear the greatest responsibility”, thus limiting the focus
of the
Among
those who bear the greatest responsibility for the crimes falling within the
jurisdiction of the
33.
This
opinion of the Secretary General was approved by the Security Council, as is
shown in the following letter from the President of the Security Council:
“The
members of the Council share your analysis of the importance and role of the
phrase “persons who bear the greatest
responsibility”. The members of the
Council, moreover, share your view that the words beginning with “those leaders who …” are intended as
guidance to the Prosecutor in determining his or her prosecutorial strategy.” [28]
34.
Thus,
the standard as understood by the Secretary General and the Security Council,
and accepted by the Government of Sierra Leone, includes, at a minimum,
political and military leaders and implies an even broader range of
individuals. This standard is in keeping with the wording of Article 1.1. of
the Statute, which states that the
“persons
who bear the greatest responsibility for serious violations of international
humanitarian law and Sierra Leonean law committed in the
35.
The
use of the word “including” implies that the category of “persons who bear the
greatest responsibility” is by no means limited to “those leaders..” and that
there may be other persons who fall into that category.
36.
Even
children between 15 and 18 years of age are not excluded from the potentially
broad scope of Article 1.1. Article 7 of the Statute gives the
“Any
such determination of [“persons who bear the greatest responsibility”] will
have to be reconciled with an eventual prosecution of juveniles and members of
a peacekeeping operation, even if such prosecutions are unlikely.”[29]
37.
Thus,
although children accused of serious crimes may fall within the category of
persons who bear “the greatest
responsibility”, it would perhaps be at the lower end of the spectrum.
38.
The
evidence of the Prosecution is discussed in detail in other sections of this
decision. Having examined that evidence, we find that there is evidence, if
believed, capable of establishing not only that the Accused Alex Tamba Brima,
Brima Bazzy Kamara, and Santigie Borgor Kanu were all senior members of the
AFRC, but that, during the periods alleged in the Indictment, they were all
implicated in serious crimes committed in 7 of the 11 districts of Sierra
Leone.
39.
Given
the potentially broad scope of Article 1.1. of the Statute discussed above, we
find that there is evidence, if believed, that is capable of placing each of
the three accused in the category of “persons who bear the greatest
responsibility” for the crimes charged in the Indictment. The fact that there
may be evidence indicating the existence of persons who bear “the greatest
responsibility” other than the Accused, does not eliminate the possibility that
the Accused may also be among those who “bear the greatest responsibility”.
40.
The
crimes alleged in Count 3 (Extermination), Count 4 (Murder), Count 6 (Rape),
Count 7 (Sexual slavery and any other form of sexual violence), Count 8 (Other
inhumane acts), Count 11 (Other inhumane acts) and Count 13 (Enslavement) of
the Indictment are proscribed and punishable under Article 2 of the Statute as
“crimes against humanity”. Article 2 of the Statute which confers jurisdiction
upon the
“Article 2: Crimes against humanity:
The
a.
Murder;
b.
Extermination;
c.
Enslavement;
d.
Deportation;
e.
Imprisonment;
f.
Torture
g.
Rape, sexual slavery, enforced
prostitution; forced pregnancy and any other form of sexual violence;
h.
Persecution on political, racial, ethnic
or religious grounds;
i.
Other inhumane acts.”
41.
Although
the Statute does not define the term “crimes against humanity”, Article 2
thereof restricts the jurisdiction of the
42.
The
Trial Chamber endorses the following contextual elements of crimes against
humanity pursuant to Article 2 of the Statute, namely:
(a) There
must be an attack:
An attack in this context is not
synonymous with “an armed conflict”[35] or “a military
attack” as defined in international humanitarian law.[36] Instead it refers to
a campaign, operation or course of conduct directed against a civilian
population and encompasses any mistreatment of the civilian population. The
attack need not involve military forces or armed hostilities[37] and may even be
non-violent in nature.[38]
(b) The
attack must be widespread or systematic:
The requirement that the attack
must be either widespread or systematic is disjunctive and proof that
the attack occurred either on a widespread basis or in a
systematic manner is sufficient to exclude isolated or random acts.[39]
It is not necessary that each act which occurs within the attack should itself
be widespread or systematic. It is sufficient that the act or various acts form
part of an attack upon the civilian population that is either “widespread” or
“systematic”.[40] While isolated or
random acts unrelated to the attack are usually excluded from the definition of
crimes against humanity, a single act perpetrated in the context of a
widespread or systematic attack upon a civilian population is sufficient to
bestow individual criminal liability upon the perpetrator. Similarly, a
perpetrator need not commit numerous offences to be held liable for crimes
against humanity.[41] In the context of
crimes against humanity, International Tribunals have defined the term
“widespread” to denote “massive, frequent, large-scale action, carried out
collectively with considerable seriousness and directed at multiple victims”;
and the term “systematic” to denote “organised action following a regular
pattern and carried out pursuant to a pre-conceived plan or policy, whether
formalised or not.”[42]
(c) The
attack must be directed against a civilian population:
The term “civilian population”
has been widely defined to include not only civilians in the ordinary and
strict sense of the term, but all persons who have taken no active part in the
hostilities, or are no longer doing so, including members of the armed forces
who laid down their arms and persons placed hors
de combat by sickness, wounds, detention or any other reason.[43] The targeted
population must be predominantly civilian in nature and the presence of a
number of non-civilians in their midst does not change the civilian character
of that population.[44] The term “directed
against” connotes that the civilian population must be the primary object of
the attack and in determining whether or not an attack is so directed the Trial
Chamber should consider, inter alia,
the means and methods used in the course of the attack, the status and number
of the victims, the nature of the crimes committed in course of the attack, the
resistance to the assailants at the time and the extent to which the attacking
force may be said to have complied or attempted to comply with the
precautionary requirements of the laws of war.[45]
(d) The
acts of the accused must be part of the attack:
In order for the offence to
amount to a crime against humanity, there must be a sufficient nexus between
the unlawful acts of the perpetrator and the attack.[46] Although this nexus
depends on the factual circumstances of each case, reliable indicia of a nexus
include the similarities between the perpetrator’s acts and the acts occurring
within the attack; the nature of the events and circumstances surrounding the
perpetrator’s acts; the temporal and geographic proximity of the perpetrator’s
acts with the attack; and the nature and extent of the perpetrator’s knowledge
of the attack when he commits the acts.[47]
(e) The
accused must have knowledge that his acts constitute part of a widespread or
systematic attack directed against a civilian population:
The mens rea or mental requisite for crimes against humanity is that
the perpetrator of the offence must be aware that a widespread or systematic
attack on the civilian population is taking place and that his action is part
of this attack.[48] However, the
perpetrator need not have been aware of the details of the pre-conceived plan
or policy when he committed the offence and need not have intended to support
the regime carrying out the attack on the civilian population.[49]
The Trial Chamber adopts the above elements and supporting jurisprudence.
43.
The
alleged crimes contained in Counts 1 (Acts of Terrorism), 2 (Collective
Punishments), 5 (Violence to life, health and physical or mental well-being of
persons, in particular murder), 9 (Outrages upon personal dignity), 10
(Violence to life, health and physical or mental well-being of persons, in
particular mutilation), and 14 (Pillage) of the Indictment are charged under
Article 3 of the Statute of the Special Court for Sierra Leone, which confers
jurisdiction upon the Special Court to try certain offences as violations of
Article 3 Common to the Geneva Conventions and of Additional Protocol II.
Article 3 of the Statute provides as
follows:
“Article
3: Violations of Article 3 Common to
the
The
a.
Violence to life, health and physical or
mental well-being of persons, in particular murder as well as cruel treatment
such as torture, mutilation or any form of corporal punishment;
b.
Collective punishments;
c.
Taking of hostages;
d.
Acts of terrorism;
e.
Outrages upon personal dignity, in
particular humiliating and degrading treatment, rape, enforced prostitution and
any form of indecent assault;
f.
Pillage;
g.
The passing of sentences and the
carrying out of executions without previous judgement pronounced by a regularly
constituted court, affording all the judicial guarantees which are recognised
as indispensable by civilised peoples; and
h.
Threats to commit any of the foregoing
acts.”
44.
The
Trial Chamber endorses the following contextual elements of Violations of
Article 3 Common to the Geneva Convention and of Additional Protocol II
pursuant to Article 3 of the Statute, namely:
(a)
There must have been
an armed conflict whether internal or international in character, at the time
the offences were allegedly committed:
Although
Article 3 Common to the Geneva Conventions is expressed to apply to armed
conflicts “not of an international character”, the distinction between internal
armed conflicts and international conflicts is “no longer of great relevance in
relation to the crimes articulated in Article 3 of the Statute.”[50] The Appeals Chamber of the ICTY has
ruled that “an armed conflict exists whenever there is a resort to armed force
between States or protracted armed violence between governmental authorities
and organised armed groups or between such groups within a State”.[51] The
armed conflict “need not have been causal to the commission of the crime, but
the existence of an armed conflict must, at a minimum, have played a
substantial part in the perpetrator’s ability to commit it, his decision to
commit it, the manner in which it was committed or the purpose for which it was
committed”.[52]
(b) There
must be a nexus between the armed conflict and the alleged offence:[53]
The nexus requirement is
satisfied where the perpetrator “acted in furtherance of or under the guise of
the armed conflict.” Factors to be considered in this regard include, inter alia, “the fact that the
perpetrator is a combatant; the fact that the victim is a non-combatant; the
fact that the victim is a member of the opposing party; [and] the fact that the
act may be said to serve the ultimate goal of a military campaign.”[54]
(c) The
victims were not directly taking part in the hostilities at the time of the
alleged violation:[55]
Common Article 3 applies to
“persons taking no active part in the hostilities, including members of armed
forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other
cause”, and Additional Protocol II similarly treats the class of non-combatants
as “all persons who do not take a direct part or who have ceased to take part in
hostilities”.[56]
45.
The
alleged crimes contained in Count 12 (Use of Child Soldiers) of the Indictment
are charged under Article 4 of the Statute of the
“Article 4: Other Serious Violations of
international humanitarian law
The
a.
Intentionally directing attacks against the
civilian population as such or against individual civilians not taking direct
part in hostilities;
b. Intentionally
directing attacks against personnel, installations, materials, units or
vehicles involved in a humanitarian assistance or peacekeeping mission in
accordance with the Charter of the United Nations, as long as they are entitled
the protection of given to civilians or civilian objects under the international
law of armed conflict;
c. Conscripting
or enlisting children under the age of fifteen years into armed forces or
groups or using them to participate actively in hostilities.”
46.
The serious violations of international
humanitarian law listed in Article 4 of the Statute possess the same chapeau
requirements as war crimes (See the previous section, “Elements of Violations
of Article 3 Common to the Geneva Conventions and of Additional Protocol II” paragraph
44 (a) to (c)).
1.
Counts 1 and 2: Terrorising the
Civilian Population and Collective Punishment
47.
The
Indictment alleges that members of the AFRC/RUF subordinate to and/or acting in
concert with Alex Tamba Brima, Brima Bazzy Kamara and Santigie Borbor Kanu
committed the crimes charged in Counts 3 through14of the Indictment (Counts 3 –
5 allege unlawful killings, Counts 6 – 9: Sexual Violence, Counts 10 – 11:
Physical Violence, Count 12: Use of Child Soldiers, Count 13: Abductions and
Forced Labour, Count 14: Looting and Burning) “as part of a campaign to
terrorize the civilian population of the Republic of Sierra Leone, and did
terrorize that population. The AFRC/RUF also committed the crimes to punish the
civilian population for allegedly supporting the elected government of
President Ahmed Tejan Kabbah and factions aligned with that government, or for failing
to provide sufficient support to the AFRC/RUF”.
48.
The
Indictment charges that, by their acts or omissions in relation to these
events, all three Accused, pursuant to Article 6.1. and/ or alternatively,
Article 6.3. of the Statute, are individually criminally responsible for the
crimes alleged in Counts 1 (Acts of Terrorism, Article 3(d) of the Statute) and
2 (Collective Punishments, Article 3(b) of the Statute). Articles 6.1 and 6.3.
of the Statute provide as follows:
“Article 6: Individual Criminal Responsibility
1. 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;
2. […]
3. The fact that any of the acts referred to in
articles 2 to 4 of the present Statute was committed by a subordinate does not
relieve his or her superior of criminal responsibility if he or she knew or had reason to know that
the subordinate was about to commit such acts or had done so and the superior
had failed to take the necessary and reasonable measures to prevent such acts
or to punish the perpetrators thereof.”
1.1. Count 1: Acts of Terrorism (Article 3.d. of
the Statute)
49.
We
adopt the definition formulated by Trial Chamber I of “acts of terrorism” within
the meaning of Article 3(d) of the Statute. The definition, which seems to have
been accepted by both the Defence and the Prosecution,[57] is in the following terms:
“The crime of Acts of Terrorism is
comprised of the elements constitutive of Violations of Article 3 Common to the
Geneva Conventions and of Additional Protocol II as well as the following
specific elements:
(a) Acts
or threats of violence directed against protected persons or their property.
(b) The
offender wilfully made protected persons or their property the object of those
acts and threats of violence.
(c) The
acts or threats of violence were committed with the primary purpose of
spreading terror among protected persons.”[58]
Joint Legal Part
50.
The
Joint Defence submitted that, at the least, the Prosecution had failed to
submit proof of elements 2 and 3 of the above–mentioned definition.[59]
Brima Motion
51.
Counsel
for Brima did not specifically respond to this Count nor to Count 2, but
submitted generally that there was no evidence to prove any individual criminal
responsibility nor any command responsibility on the part of Brima.
Kamara Motion
52.
Counsel
for Kamara submitted that the Prosecution evidence is insufficient to support
Counts 1 and 2. It was also submitted on behalf of Kamara that, in relation to
Counts 1 and 2, the Prosecution has made it impossible for him to understand
the nature and cause of the specific charges brought against him because the
Prosecution has used the same facts and evidence “to hold him criminally and
individually responsible for the alleged conduct attributed to him, as well as
for the alleged acts of his subordinates and/or purported AFRC/RUF alliance in
this regard”.
Prosecution Response
53.
The
Prosecution, in submitting that the Joint Defence submission should be
rejected, referred to the evidence of various witnesses describing “how they
suffered at the hands of the AFRC” and indicating “the widespread nature of the
attacks” and showing “the primary purpose of spreading terror amongst protected
persons who were not involved in any hostilities.”[60]
54.
In
answer to the Brima and Kamara Motions, the Prosecution submitted that the
evidence relied upon to prove Counts 1 and 2 variously relates to the remaining
Counts 3 to 14, and the evidence adduced therein. Based on the evidence showing
the criminal responsibility of Brima for Counts 3 to 14, “which also serves as
a basis for the actus reus and mens rea for Counts 1 and 2”, a
reasonable tribunal of fact could conclude that there was sufficient evidence
to convict Brima on Counts 1 and 2.
55.
With
regard to Kamara’s claim that the Prosecution had made it impossible for him to
understand the nature of the specific charges brought against him in Counts 1
and 2, the Prosecution submitted that any allegation of a defect in the form of
the indictment should have been raised by preliminary motion under Rule 72
before commencement of the trial, and that a motion under Rule 98 was not the
place to raise such a question.
Brima Reply
56.
Brima
denied that there was sufficient evidence to convict him on Counts 1 and 2.[61]
Kamara Reply
57.
Counsel
for Kamara submitted that the Prosecution arguments confer guilt on Kamara on
Counts 1 and 2 for allegedly being present at a meeting at Kamagbengbe, but
that his mere presence at the meeting (which is denied) is insufficient to
convict him of those crimes.[62]
Kanu Reply
58.
Counsel
for Kanu did not specifically reply to the Prosecution Response in relation to
this Count.
59.
Kamara’s
complaint that the Prosecution has relied on the same facts and evidence as a
basis for criminal liability under both Article 6.1. and Article 6.3. of the
Statute is an objection based on alleged defects in the form of the indictment
and should have been raised by way of preliminary motion under Rule 72. It is
beyond the scope of Rule 98 and not something we are prepared to consider here.
60.
While
we would agree with Counsel for Kamara that mere presence at a meeting is not
sufficient, of itself, to confer guilt, we find that there is evidence which,
if believed, not only establishes Kamara’s presence at the meeting in
Kamagbengbe, but is also capable of supporting a conviction against him for the
crimes resulting from the attack on Karina, which was planned at that meeting.[63]
61.
Having
considered the available evidence, we find that there is evidence, if believed,
sufficient to satisfy a reasonable tribunal of fact beyond reasonable doubt of
the guilt of each of the Accused Brima, Kamara and Kanu for the crime of Acts
of Terrorism as a violation of Article 3 Common to the Geneva Conventions and
of Additional Protocol II pursuant to Article 3.d. of the Statute. Accordingly,
we are satisfied that, pursuant to Rule 98, the evidence is capable of
supporting a conviction against each of the Accused Brima, Kamara and Kanu on
Count 1 of the Indictment.[64]
1.2. Count 2:
Collective Punishments (Article 3(b) of the Statute)
62.
Again,
there seems to be no dispute between the parties regarding the definition of
the crime of collective punishments formulated by Trial Chamber I[65],
and we adopt that definition. Trial Chamber I was of the view that the elements
of the crimes were:
Joint Legal Part
63.
The
Joint Defence submitted that the Prosecution failed to adduce any “concrete”
evidence against the accused Kanu. The Defence further submitted that there was
no evidence to prove that members of the AFRC or RUF or “of those organizations
acting in concert with Kanu” had committed collective punishments. In addition,
the Joint Defence argued that there was no evidence “that the Accused would
have done so while holding a position of superior responsibility and exercising
effective control over them in relation to this crime”.[66]
Kanu Motion
64.
Counsel
for Kanu argued that the Indictment does not state any specific area in the
country where these crimes would have been committed, nor does it mention any
specific time frame other than “the general frame of the Indictment, i.e. after
65.
It
was also submitted that there had been no evidence that Kanu bore any
individual criminal responsibility for
this crime, nor had there been any evidence of any superior responsibility or
joint criminal enterprise.[67]
Prosecution Response
66.
The
Prosecution submitted that the evidence relied upon to prove Counts 1 and 2
variously relates to some or all of the remaining Counts 3 to 14 inclusive and
that accordingly, issues as to time frame and location are answered by the
specificity of paragraphs 42 to 79 inclusive of the Indictment (which set out
the remaining Counts 3 to 14).[68]
67.
In
addition, the Prosecution submitted that, contrary to the Defence
assertions, there is sufficient evidence
of collective punishments, including evidence of superior responsibility for
the crime. As an example, the Prosecution referred to the evidence of Witness
TF1-334, recounting an incident in which the Accused Brima ordered a company
commander to shoot some civilians. The same witness testified to a meeting in
Kamagbengbe at which the Accused Brima, in the presence of the other two
Accused Kamara and Kanu, ordered the destruction of Karina.[69]
68.
In
challenging the submissions made on behalf of Kanu, the Prosecution pointed out
that there is the evidence of Witness TF1-167 to show that Kanu was present
when orders for collective punishments were given by the Accused Brima that the
69.
The
Prosecution concluded with the submission that there is evidence on the basis
of which a reasonable tribunal of fact could conclude that the Accused Kanu was
criminally responsible pursuant to Articles 6.1. and/or 6.3. of the Statute for
collective punishments.[71]
70.
Having
applied the Rule 98 standard in our consideration of the available evidence, we
find that there is evidence, if believed, sufficient to satisfy a reasonable
tribunal of fact beyond reasonable doubt of the guilt of each of the Accused
Brima, Kamara and Kanu of the crime of Collective Punishments as a violation of
Article 3 Common to the Geneva Conventions and of Additional Protocol II
pursuant to Article 3.b. of the Statute. Accordingly, pursuant to Rule 98, we
are satisfied that the evidence is capable of supporting a conviction against
each of the Accused Brima, Kamara and Kanu on Count 2 of the Indictment.[72]
2. Counts
3, 4 and 5: Crimes Relating to Unlawful Killings
71.
The
Indictment alleges that members of the AFRC/RUF subordinate to and/or acting in
concert with the accused Alex Tamba Brima, Brima Bazzy Kamara and Santigie
Borbor Kanu, carried out “unlawful killings that routinely occurred through
shooting, burning or hacking to death of victims” in various locations in the
territory of Sierra Leone, including Bo District between 1to 30 June 1997[73];
Kenema District between 25 May 1997 and about 19 February 1998[74];
Kono and Kailahun Districts between 14 February 1998 and 30 June 1998[75];
Koinadugu District between 14 February 1998 and 30 September 1998[76];
Bombali District between 1 May 1998 and 30 November 1998[77];
Freetown and the Western Area between 6 January 1999 and 28 February 1999[78];
and Port Loko District between February and April 1999[79].
72.
In
particular, the Indictment alleges that by their acts or omissions in relation
to these events, each of the accused persons Brima Kamara and Kanu is
individually criminally responsible pursuant to Article 6.1 and/or 6.3 of the
Statute, for the crime against humanity of Extermination, punishable under
Article 2 b. of the Statute (Count 3);
in addition to or in the alternative, the crime against humanity of Murder,
punishable under Article 2 a. of the Statute” (Count 4), and in addition to or in the alternative, Violence to
life, health and physical or mental well-being of persons, in particular
murder, a violation of Article 3 Common to the Geneva Conventions and of
Additional Protocol II, punishable under Article 3.a. of the Statute (Count 5).
2.1. Count 3: Extermination (Article
2.b. of the Statute)
73.
Extermination
as a crime against humanity has been defined in international humanitarian law
as “the intentional mass killing or destruction of part of a population as part
of a widespread or systematic attack upon a civilian population.”[80] The Trial Chamber endorses the view
expressed by the ICTR that a perpetrator may be guilty of the crime of
Extermination if he kills or destroys one individual as long as that killing of
that individual is part of a mass killing event;[81]
and that unlike the crime of Genocide, the crime of Extermination does not
require a discriminatory intent.[82]
The Trial Chamber adopts the following elements of the crime against humanity
of Extermination as charged under Count 3 of the Indictment, namely that-
(a)
The
perpetrator intentionally caused the death or destruction of one or more
persons by any means including the infliction of conditions of life calculated
to bring about the destruction of a numerically significant part of a
population;
(b)
The
killing or destruction constituted part of a mass killing of members of a
civilian population;
(c)
The
mass killing or destruction was part of a widespread or systematic attack
directed against a civilian population; and
(d)
The
perpetrator knew or had reason to know that his acts or omissions constituted
part of a widespread or systematic attack directed against a civilian
population.
2.2. Count 4: Murder (Article 2.a. of the Statute)
74.
Murder
as a crime against humanity has been defined in international humanitarian law
as “the intentional killing of a person as part of a widespread or systematic
attack upon a civilian population.”[83] The
Trial Chamber adopts the following elements of the crime against humanity of
Murder as charged under Count 4, namely that-
(a)
The
perpetrator by his acts or omission caused the death of a person or persons;
(b)
The
perpetrator had the intention to kill or to cause serious bodily harm in the
reasonable knowledge that it would likely result in death;
(c)
The
murder was committed as part of a widespread or systematic attack directed
against a civilian population; and
(d)
The
perpetrator knew or had reason to know that his acts or omissions constituted
part of a widespread or systematic attack directed against a civilian
population.
2.3. Count 5: Murder (Article 3.a. of the Statute)
75.
Murder
as a violation of Article 3 Common
to the Geneva Convention and of Additional Protocol II has been defined in
international humanitarian law as “the wilful killing of a person or persons
protected under the Geneva Conventions of 1949 and Additional Protocol II
during an armed conflict.” [84] International law permits killing or
wounding in military conflicts so long as the rules of international
humanitarian law are complied with. The four Geneva Conventions and Additional
Protocol II proscribe the killing or wounding of persons taking no active part
in the hostilities, including the wounded or sick (Article 13 of Geneva
Conventions I &II); prisoners of war or persons who have fallen into enemy
hands (Article 4(A) of Geneva Convention III); those who find themselves in the
hands of a hostile party to the conflict or in the territory it controls
(Article 4(1) of Geneva Convention IV); and members of the armed forces who
have laid down their arms and those placed hors de combat by sickness, wounds,
detention or any other cause (Article 3(1) common to Geneva Conventions I to IV
and Article 4 (1) Additional Protocol II). Thus while Article 3 of the Statute
of the Special Court does not articulate the elements of each war crime, these
crimes must be construed in light of the international humanitarian law and jurisprudence interpreting the various
provisions of the Geneva Conventions as well as the peculiar circumstances of
the Sierra Leonean conflict.
76.
As
earlier observed, although the above rules were originally applicable to international
conflict, International Tribunals have adapted them to take into account new
realities including inter-ethnic,
inter-religious and other intra-state conflicts “between government authorities
and organised armed groups or between such groups”.[85] The
Appeals Chamber of the
“The distinction
is no longer of great relevance in relation to the crimes articulated in
Article 3 of the Statute as these crimes are prohibited in all conflicts.
Crimes during internal armed conflict form part of the broader category of
crimes during international armed conflict. In respect of Article 3 therefore,
the Court need only be satisfied that an armed conflict existed and that the
alleged violations were related to the armed conflict.”[86]
77.
The
Trial Chamber adopts the following elements of the crime of Murder as a violation of Article 3 Common to the
Geneva Convention and of Additional Protocol II, as charged under Count 5,
namely that-
(a)
The
perpetrator inflicted grievous bodily harm upon the victim in the reasonable
knowledge that such bodily harm would likely result in death;
(b)
The
perpetrator’s acts or omission resulted in the death of the victim;
(c)
The
victim was a person protected under one or more of the Geneva Conventions of
1949 or was not taking an active part in the hostilities at the time of the
alleged violation;
(d)
The
violation took place in the context of and was associated with an armed
conflict; and
(e)
The
perpetrator was aware of the factual circumstances that established the
protected status of the victim.
78.
Individual
criminal responsibility for the crimes under Counts 3,4 and 5 is established by
evidence showing that the perpetrator (or his subordinate with the superior’s
knowledge) planned, instigated, ordered, committed or otherwise aided and
abetted in the planning, preparation or execution of the above crimes in the
Districts of Bo, Kenema, Kono, Kailahun, Koinadugu, Bombali, Freetown and
Western Area and Port Loko as charged in paragraphs 42 to 50 of the Indictment.[87]
For purposes of this Judgement, the Trial Chamber must determine pursuant to
Rule 98 of the Rules whether or not the Prosecution evidence adduced is capable
of supporting a conviction against each of the three accused persons on Count 3
(Extermination) and/or Count 4 (Murder) and/or Count 5 (Murder).
2.4. Submissions for Counts 3, 4 and 5
Joint Legal Part
79.
The
Defence jointly submitted that the accused persons should be acquitted on all
Counts alleging “crimes against humanity”, on the grounds that the Prosecution
has failed to prove to the required standard two of the chapeau elements,
namely that (a) attacks on the
population were widespread or systematic, and (b) that the alleged offences were committed as part of the attack. [88]
Counsel relied on the procedure adopted by the ICTR and ICTY in the cases of Prosecutor v. Ferdinand Nahimana et al.[89]
and Prosecutor v. Dusko Sikirica et al.[90]respectively. [91]
Brima Motion
80.
In
addition to the joint Defence submissions, Counsel for the accused Brima
submitted that his client should be acquitted in respect of Count 3 of the
Indictment (Extermination) as the
Prosecution has failed to prove any of the elements of that offence to the
required standard. In particular the Prosecution failed to prove (a) that a particular population was
targeted, and (b) that its members
were killed or otherwise subjected to conditions of life calculated to bring
about the destruction of a numerically significant part of the population.[92]
81.
Counsel
for Brima argued with respect to the crime of Murder, that the Prosecution
failed to prove that “the victims were persons taking no active part in the
hostilities”.[93]
In support of this argument Counsel cited the elements of the war crime of
Murder adopted by Trial Chamber I in the case of Prosecutor v. Norman et al.[94]
82.
Regarding
the various locations where the unlawful killings are alleged to have taken
place and mentioned in paragraphs 43 to 50 of the Indictment, Counsel submitted
in relation to-
(a)
Bo District, that the
Prosecution failed to prove that any of the crimes alleged in Counts 3, 4 and 5
of the Indictment was committed in Tikonko, Telu, Sembehun, Gerihun, and
Mamboma.[95]
In addition, the Prosecution failed to adduce any evidence of an attack
generally by the AFRC or particularly by Brima in that District or to link
Brima to the activities of the RUF in Bo.[96]
Furthermore the evidence of Prosecution Witnesses TF1-004, TF1-053, TF1-054 in
this regard is contradictory and unreliable;[97]
(b)
Kenema District, that the
Prosecution failed to prove that Brima was individually criminally responsible
for crimes allegedly committed in that District or that persons under his
command or control took part in the alleged crimes, during the period alleged
in the Indictment. The evidence of Prosecution Witnesses TF1-122, TF1-045,
TF1-062 and TF1-167 in this regard is contradictory and unreliable and shows
instead, that members of the RUF were in control of Kenema District during the
alleged period and were responsible for the commission of the alleged crimes in
that District; [98]
(c)
Kono District, that the
Prosecution failed to prove that Brima or the AFRC were in command and control
of Kono District after the ECOMOG intervention, or to link Brima or the AFRC to
any of the atrocities committed in Kono. The evidence of Prosecution Witnesses
TF1-167, TF1-033, TF1-334, TF1-045 and TF1-072 in this regard is contradictory,
uncorroborated and unreliable and shows instead, that members of the RUF were
responsible for the commission of the alleged crimes in that District during
the period alleged in the Indictment.[99]
In addition, the Prosecution failed to prove that any of the crimes alleged in
Counts 3, 4 and 5 of the Indictment was committed in Foindu, Willifeh, Mortema
or Biaya;[100]
(d)
Kailahun District, that the
Prosecution failed to prove that Brima or the AFRC were in command and control
of the perpetrators in Kailahun District during the period alleged in the
Indictment, or that they were linked to the commission of the alleged crimes in
that District. The evidence of Prosecution Witnesses TF1-045, TF1-167, TF1-334
and TF1-113 shows instead, that members of the RUF were in control of Kailahun
District during the alleged period and were responsible for the commission of
the alleged offences in that District;[101]
(e)
Koinadugu District, that the
Prosecution failed to prove that Brima was individually criminally responsible
for crimes allegedly committed there or that persons under his command or
control took part in the alleged crimes in that District, for the duration of
the war. The evidence of Prosecution Witnesses TF1-310 and TF1-167 shows
instead, that members of the RUF were in control of Kailahun District during
the alleged period and were responsible for the commission of the alleged
offences in that District;[102]
(f)
Bombali District, that the
Prosecution failed to prove that Brima was individually criminally responsible
for crimes allegedly committed in that District. The evidence of Prosecution
Witnesses TF1-157, TF1-167 and TF1-334 relating to crimes allegedly committed
in that District is insufficient, contradictory and unreliable;[103]
(g)
Freetown and Western
Area,
that the evidence of Prosecution Witness TF1-021 relating to crimes allegedly
committed there is insufficient, contradictory and unreliable and shows that
members of the RUF were responsible for the commission of the alleged offences
in that District.[104]
Kamara Motion
83.
In
addition to the joint Defence submissions, Counsel for the accused Kamara
submitted that his client should be acquitted in respect of Counts 3, 4 and 5
of the Indictment because the Prosecution failed to prove any of the elements
of those offences to the required standard.[105] Regarding the various locations where
the offences are alleged to have taken place and mentioned in paragraphs 43 to
50 of the Indictment, Counsel submitted in relation to-
(a)
Bo District, that the
Prosecution failed to prove that Kamara was in Bo during the period alleged in
the Indictment or that persons under his command, authority or direction, took
part in the alleged crimes there. The evidence of Prosecution Witnesses
TF1-004, TF1-053, TF1-054 shows instead, that members of the RUF were
responsible for the alleged killings in Bo during the alleged period;[106]
(b)
Kenema District, that the
Prosecution failed to prove that Kamara was in Kenema during the period alleged
in the Indictment or that persons under his command, authority or direction,
participated in the commission of the alleged crimes there. The evidence of
Prosecution Witnesses TF1-122, TF1-045 and TF1-062 in this regard shows
instead, that members of the RUF were in control of the
(c)
Kono District, that the
Prosecution failed to prove that either Kamara or persons under his command,
authority or direction, participated in the commission of alleged crimes there.
While Prosecution Witnesses TF1-019, TF1-072, TF1-074, TF1-076, TF1-198,
TF1-206, TF1-216, and TF1-217 did not refer to Kamara at all in their
testimonies, the evidence of Prosecution Witnesses TF1-033, TF1-167 and TF1-334
in this regard is insufficient, contradictory and unreliable.[108]
(d)
Kailahun District, that the
Prosecution failed to prove that Kamara was in Kailahun during the period
alleged in the Indictment or that persons under his command, authority or
direction, participated in the commission of the alleged crimes there. The
evidence of Prosecution Witnesses TF1-045, TF1-114 and TF1-113 shows instead,
that members of the RUF were in control of Kailahun District during the alleged
period and were responsible for the alleged killings there;[109]
(e)
Koinadugu District, that the
Prosecution failed to prove that either Kamara or persons under his command,
authority or direction, participated in the commission of alleged crimes there.
While Prosecution Witnesses TF1-094, TF1-133, TF1-147, TF1-209 and TF1-310 did
not refer to Kamara at all in their testimonies, the evidence of Prosecution
Witnesses TF1-033, TF1-153, TF1-167, TF1-334 and TF1-184 in this regard is
insufficient and does not implicate Kamara or persons under his command,
authority or direction in the alleged killings in that District;[110]
(f)
Bombali District, that the
Prosecution failed to prove that either Kamara or persons under his command,
authority or direction, participated in the commission of alleged crimes there.
While Prosecution Witnesses TF1-055, TF1-157, TF1-158, TF1-179, TF1-180,
TF1-199 and TF1-267 did not mention Kamara at all in their testimonies, the
evidence of Prosecution Witnesses TF1-033, TF1-153, TF1-167, TF1-184 and
TF1-334 in this regard is contradictory and unreliable and does not implicate
Kamara or persons under his command, authority or direction in the alleged
killings in that District;[111]
(g)
Freetown and Western
Area,
that the Prosecution failed to prove that either Kamara or persons under his
command, authority or direction, participated in the commission of alleged
crimes there. While Prosecution Witnesses TF1-021, TF1-024, TF1-083, TF1-084,
TF1-085, TF1-098, TF1-104, TF1-169, TF1-277 and TF1-278 did not mention Kamara
at all in their testimonies, the evidence of Prosecution Witnesses TF1-023,
TF1-045, TF1-153, TF1-167, TF1-184, TF1-227, TF1-334 and Mr. Gibril Massaquoi
in this regard is insufficient, contradictory and unreliable and does not
implicate Kamara or persons under his command, authority or direction in the
alleged killings in that District.[112]
(h)
Port Loko District, that the
Prosecution failed to prove that either Kamara or persons under his command,
authority or direction, participated in the commission of alleged crimes there.
While Prosecution Witnesses TF1-021, TF1-024, TF1-083, TF1-084, TF1-085,
TF1-098, TF1-104, TF1-169, TF1-277 and TF1-278 did not mention Kamara at all in
their testimonies, the evidence of Prosecution Witnesses TF1-023, TF1-045,
TF1-153, TF1-167, TF1-184, TF1-227, TF1-334 and Mr. Gibril Massaquoi in this
regard is unreliable and does not implicate Kamara or persons under his command,
authority or direction in the alleged killings in that District. The
Prosecution also failed to prove that Kamara participated in a joint criminal
enterprise with any person or group of persons in Port Loko District.[113]
Kanu Motion
84.
In
addition to the joint Defence submissions, Counsel for the accused Kanu
submitted that his client should be acquitted on the grounds that the
Prosecution failed to prove that Kanu is one of the persons who “bear the
greatest responsibility for serious violations of international humanitarian
law and Sierra Leonean law”, as required by Article 1.1 of the Statute.[114]
85.
Counsel
submitted that Kanu should be acquitted in respect of Counts 3 of the
Indictment (Extermination), because
the Prosecution failed to prove to the required standard (a) two of the essential elements of the crime of Extermination
namely, “mass destruction” and “a plan to bring about the destruction of part
of a population”, and (b) Kanu’s
participation individually or as a commander or as a participant in a joint
criminal enterprise, in the crime of Extermination.[115]
86.
Counsel
submitted that Kanu should be acquitted in respect of Counts 4 and 5 of the
Indictment because the Prosecution failed to prove that Kanu bears any
individual criminal responsibility for the alleged crimes through direct
participation or through superior responsibility or through a joint criminal
enterprise as required by Article 6 of the Statute.[116]
87.
Regarding
the various locations where offences under Counts 4 and 5 are alleged to have
taken place and mentioned in paragraphs 43 to 50 of the Indictment, Counsel
submitted in relation to-
(a)
Bo District, that the
Prosecution failed to prove that Kanu was present in that District and in
particular in Tinkoko, Telu, Sembehun, Gerihun and Mamboma, during the period
alleged in the Indictment; or that such crimes were in fact committed Telu and
Sembehun; or that he bears any individual criminal responsibility for the
alleged crimes as a commander or as a participant in a joint criminal
enterprise;[117]
(b)
Kenema District, that the
Prosecution failed to prove that Kanu was present in that District or in Kenema
Town during the period alleged in the Indictment or that he bears any
individual criminal responsibility for the alleged crimes as a commander or as
a participant in a joint criminal enterprise;[118]
(c)
Kono District, that the
Prosecution failed to prove that either the RUF or the AFRC committed any of
the crimes alleged under Counts 4 and 5 in Foindu, Wollifeh, Mortema and Biaya
during the alleged period; or that hundreds of people were in fact killed in
Kono District; or that Kanu bears any individual criminal responsibility for
the alleged crimes as a commander or as a participant in a joint criminal
enterprise ;[119]
(d)
Kailahun District, that the
Prosecution has failed to prove that Kanu was present in that District during
the period alleged in the Indictment; or that the crime of Murder was in fact
committed in Kailahun; or that he bears any individual criminal responsibility
for the alleged crimes as a commander or as a participant in a joint criminal
enterprise ;[120]
(e)
Koinadugu District, that the
Prosecution failed to prove that Kanu was present in Heremakono, Kumalu/Kamalu,
Katombo and Fadugu during the period alleged in the Indictment; or that he
directly participated in the commission of the alleged crimes in that District;
or that he bears any individual criminal responsibility as a commander or as a
participant in a joint criminal enterprise ;[121]
(f)
Bombali District, that the
Prosecution failed to prove that Kanu was present in Bonyoyo/Bornoya and Mafabu
during the period alleged in the Indictment; or that he directly participated
in the commission of the alleged crimes in that District; or that he bears any
individual criminal responsibility as a commander or as a participant in a
joint criminal enterprise .[122]
Prosecution Response
88.
Counsel
for the Prosecution submitted that the Prosecution evidence is sufficient to
enable a reasonable tribunal of fact to conclude that all the chapeau elements
of crimes against humanity alleged in Counts 3, 4, 7, 8, 11 and 13 of the
Indictment have been established.[123]
With regard to Count 3 of the Indictment, the Prosecution maintained that it
has adduced sufficient evidence showing that the three accused persons are
criminally responsible for acts of extermination committed as part of a
widespread and systematic attack against a civilian population in Karina,
Tombodu, Kukuna, Madina, Mange Bureh and
89.
While
conceding that the Prosecution led no evidence of unlawful killings in the
following villages, namely, Telu, Sembehun and Mamoma in Bo District; Foindu, Wollifeh and Biaya in Kono District; Heremakono, Kumalu, Katombo and Kamadugu in Koinadugu District; Mafabu in Bombali District and Tendakum in Port Loko District, Counsel for the
Prosecution maintained that the Prosecution evidence of “widespread or
systematic” killings of civilians in respect of all other locations mentioned
in paragraphs 43-50 of the Indictment,[126]
and in respect of other villages in these Districts not specifically pleaded in
the Indictment[127]
is capable of sustaining a conviction under Counts 3,4 and 5 against each of
the accused persons, and that the weight, credibility and/or reliability of
that evidence is irrelevant at this stage.[128]
90.
Regarding
the various locations mentioned in paragraphs 43 to 50 of the Indictment where
offences under Counts 3, 4 and 5 are alleged to have taken place, Counsel for
the Prosecution submitted in relation to-
(a)
Bo and Kenema Districts, that the
Prosecution adduced sufficient evidence showing that the alleged crimes took
place soon after the AFRC/RUF Junta Government took over power; that perpetrators
comprising members of the RUF and AFRC committed the alleged crimes against
civilians in furtherance of a joint criminal enterprise; that perpetrators of
the alleged crimes reported directly to the Supreme Council; and that as
members of the ruling AFRC/RUF Junta and Supreme Council, each of the three
accused persons was a participant in the joint criminal enterprise and is
criminally responsible under Article 6 (1) and (3) of the Statute for the
alleged crimes in those Districts;[129]
(b)
Kono District, that the
Prosecution adduced sufficient evidence showing that after the ECOMOG
intervention (the time of the alleged crimes), Brima was in Kono and gave
orders to his subordinates in Tombodu for the abduction, amputation and killing
of civilians and that he had knowledge of crimes committed by his subordinates
during “Operation Spare No Soul” and “Operation No Living Thing”; that in
addition to the villages pleaded in the Indictment, unlawful killings took
place at Yardu Sandu, Gbiama, Wordu, Koidu Buma, Koidu Geiya, Bomboafoidu,
Penduma and Paema; that Kamara was in charge of collecting arms and bringing
them back to Superman; that he had knowledge of the unlawful killings by his
subordinates that took place in Kono District; and that the perpetrators carried
out the alleged crimes in furtherance of a joint criminal enterprise in respect
of which each of the three accused persons participated and is criminally
responsible under Article 6 (1) and (3) of the Statute;[130]
(c)
Kailahun and Koinadugu
Districts,
that the Prosecution adduced sufficient evidence showing that in addition to
the villages pleaded in the Indictment, unlawful killings took place at
Bamukura, Yemadugu and Yiffin; that perpetrators comprising members of the RUF
and AFRC committed the alleged crimes there in furtherance of a joint criminal
enterprise in respect of which each of the three accused persons participated and
is criminally responsible under Article 6 (1) and (3) of the Statute;[131]
(d)
Bombali District, that the
Prosecution adduced sufficient evidence showing that Brima, in the presence of
Kamara ordered and/or participated in the unlawful killing of civilians in
Bumbuna, Kamagbengbe, Mandaha, Foroh Loko, Camp Rosos and Karina; that Kamara
and Kanu participated in burning civilians to death in Karina; and that RUF/AFRC
Junta troops committed the alleged crimes there in furtherance of a joint
criminal enterprise in respect of which each of the three accused persons
participated and is criminally responsible under Article 6 (1) and (3) of the
Statute;[132]
(e)
Freetown and the
Western Area,
that the Prosecution adduced sufficient evidence showing that Brima was in
command of the troops that invaded Freetown and that he ordered the unlawful
killing of civilians in the presence of Kamara and Kanu; that Kamara
participated in some of those killings; and that the perpetrators committed the
alleged crimes there in furtherance of a joint criminal enterprise in respect
of which each of the three accused persons participated and is criminally
responsible under Article 6 (1) and (3) of the Statute;[133]
(f)
Port Loko District, that the Prosecution
adduced sufficient evidence showing that each of the three accused persons is
criminally responsible pursuant to Article 6 (1) and (3) of the Statute for
crimes committed in that District; that Kamara commanded the AFRC troops that
withdrew from Freetown and ordered them to commit the alleged crimes in the
Westside Jungle, Mamah Town and Manarma; and that Kanu was present in Sumbuya
and ordered the killings in Sumbuya, Masiaka and Gbinti Town.[134]
Joint Defence Reply
91.
Defence
Counsel for Brima and Kamara reiterated that the Prosecution is under a legal
obligation to prove every particular as set out in the Indictment and that
where the Prosecution has conceded failure to adduce evidence of crimes having
been committed in certain locations specified in the Indictment, the accused
persons should be acquitted on those counts.[135]
Brima Reply
92.
Counsel
for the accused Brima submitted that the Prosecution has failed to adduce any
evidence that Brima personally committed any of the alleged crimes or that he
exercised any control over the perpetrators of the alleged crimes in the
Districts of Bo, Kenema, Kono, Kailahun and
Bombali, and that in any event, the
Prosecution evidence implicating Brima is contradictory and unreliable.[136]
Kamara Reply
93.
Counsel
for the accused Kamara submitted that the Prosecution has failed to prove that
Kamara directly or indirectly participated in the commission of the alleged
crimes in Kono and Koinadugu Districts and in the Freetown and Western Area; and that in
any event, the Prosecution evidence implicating Kamara is contradictory and
unreliable.[137]
Kanu Reply
94.
Counsel
for the accused Kanu reiterated that the Prosecution is under a legal
obligation to prove every particular as set out in the Indictment and that
where the Prosecution has conceded having led no evidence of crimes having been
committed in certain locations specified in the Indictment, the Trial Chamber
should strike those locations from the Indictment.[138]
Similarly, where a Prosecution witness has given evidence relating to a
location whose names differs phonetically from the name specified in the
Indictment the latter names should be struck from the Indictment as the
Prosecution has failed to prove that the two names refer to the same location.[139]
Counsel reiterated that the Prosecution evidence implicating Kanu in the
unlawful killing of civilians in the Districts of Bo, Kono, Bombali and Port
Loko is insufficient and unreliable.[140]
2.5.
Findings for Counts 3, 4 and 5
95.
The
Defence argued that the elements of the crimes of Murder and Extermination as
crimes against humanity overlap, to the prejudice of the Defence Case. While we
agree that some of the elements of the crime of Extermination overlap those of
the crime of Murder, the two crimes against humanity are not identical. As
stated above, the single element that distinguishes the former from the latter
is that in the case of Extermination, the murder (whether of one or more
persons) “constitutes part of a mass
killing of members of a civilian population”. Given that the two crimes are
essentially different and are charged concurrently as well as in the
alternative under Counts 3 and 4 of the Indictment, we find no merit in the
Defence claim of prejudice.
96.
Regarding
the Defence submission that the Trial Chamber ought to strike from the
Indictment the names of certain villages in respect of which the Prosecution
has failed to adduce any evidence of crimes having been committed or whose
names are spelled differently in the Indictment from similar locations given by
the witnesses, we note that the Prosecution indeed conceded that no evidence of
crime was led with regard to certain locations named in the Indictment. These
include Telu, Sembehun and Mamoma in Bo
District; Foindu, Wollifeh and Biaya in Kono
District; Heremakono, Kumalu, Katombo and Kamadugu in Koinadugu District; Mafabu in Bombali
District and Tendakum in Port Loko
District. In light of the Prosecution evidence referred to below, we find no
merit in the Defence objections and refer to our earlier views contained in
Part III of this Decision.
97.
Regarding
the Defence submission that some of the Prosecution witnesses were
contradictory and/or unreliable, the Trial Chamber can only reiterate its
earlier view, namely, that the object of the inquiry under Rule 98 is not to
make determinations of fact having weighed the credibility and reliability of
the evidence; and that rather, it is simply to determine whether the evidence –
assuming that it is true – could not possibly sustain a conviction on one or
more counts.
Findings with
regard to Count 3 (Extermination):
98.
The
Trial Chamber finds that there is evidence, if believed, upon which a
reasonable tribunal of fact could be satisfied beyond reasonable doubt, of the
guilt of each of the accused Brima, Kamara and Kanu, with respect to the mass
killings that took place during the periods alleged in the Indictment at
various locations including[141]
Tikonko Town[142]
and Gerihun[143]
in Bo District; at Manarma[144],
Mammah Town[145],
Mile Thirty-Eight[146],
Songo[147],
Nonkoba[148],
Gberibana[149],
Makolo[150],
Masimera,[151]
Lunsar Town[152]
in Port Loko District; at Freetown[153],
Kissy[154],
Thomas Place[155]
and Fourah Bay Area[156]
in Freetown and Western Area; at
Koidu Geya[157],
Koidu Buma[158],
Paema[159],
Penduma[160],
Tombodu[161],
Koidu Town[162],
and Buedu[163]
in Kono District; at Gbendembu[164],
Karina[165],
Gberemantmatank (Eddie Town)[166],
Rosos[167],
Bat Mise, near Camp Rosos[168],
Bornoya[169]
in Bombali District; Kenema Town[170]
and Tongo Field[171]
in Kenema District; Kailahun Town[172]
in Kailahun District, and Freetown[173]
in the Freetown and Western Area,[174]
as part of a widespread or systematic attack upon a civilian population.
99.
The
Trial Chamber accordingly finds that there is evidence capable of supporting a
conviction against each of the accused Brima, Kamara and Kanu for the crime
against humanity of Extermination pursuant to Article 2.b. of the Statute, as
charged under Count 3 of the Indictment.
Findings with
regard to Count 4 (Murder):
100.
The
Trial Chamber finds that there is evidence, if believed, upon which a
reasonable tribunal of fact could be satisfied beyond reasonable doubt, of the
guilt of each of the Accused Brima, Kamara and Kanu, with respect to the
murders that took place during the periods alleged in the Indictment, at
various locations including[175]
Gerihun[176],
Tikonko[177]
in Bo District; Kenema Town[178]and
Tongo Field[179]
in Kenema District; Koidu Geiya[180],
Paema[181],
Yardu Sando[182],
Wordu[183],
Koidu Town[184]
Tombodu[185]and
Penduma[186]
in Kono District; at Kailahun Town[187]
in Kailahun District; at Yiffin[188],
Kabala[189],
Fadugu[190]and
Bamukura[191],
in Koinadugu District; Kamagbengbe[192],
Tonkoba[193],
Karina[194],
Rosos[195],
Mandaha/Mateboi[196], Bornoya[197],
Rotu[198],
Batkanu[199],
Dariya[200],
Mayombo[201]
and Madina Loko[202]
in Bombali District,[203]
as part of a widespread or systematic attack upon a civilian population.
101.
The
Trial Chamber accordingly finds that there is evidence capable of supporting a
conviction against each of the accused Brima, Kamara and Kanu for the crime
against humanity of Murder pursuant to Article 2.a. of the Statute as charged
under Count 4 of the Indictment.
Findings with
regard to Count 5 (Murder):
102.
The
Trial Chamber finds that there is evidence, if believed, upon which a
reasonable tribunal of fact could be satisfied beyond reasonable doubt, of the
guilt of each of the accused Brima, Kamara and Kanu, with respect to the
murders that took place during the periods alleged in the Indictment, at various locations including[204]
Makolo[205]
in Port Loko District; Kenema Town[206]
and Tongo Field[207]
in Kenema District; Jagbwema Fiama[208],
Koidu Buma[209],
Wendedu/Wondedu[210] in
Kono District; Kabala[211],
Kurubola[212]
and Koidu Town[213]
in Koinadugu District; Bumbuna[214],
Mandaha[215],
Foroh Loko[216]
and Gbendembu[217]
in Bombali District; Freetown[218],
Waterloo[219], in the Freetown
and Western Area.[220]
103.
The
Trial Chamber accordingly finds that there is evidence capable of supporting a
conviction against each of the accused Brima, Kamara and Kanu for the crime of
Murder as a violation of Article 3
Common to the Geneva Convention and of Additional Protocol II, pursuant to
Article 3.a. of the Statute, as charged under Count 5 of the Indictment.
3. Counts
6, 7, 8 and 9: Crimes Relating To Sexual Violence
104.
The
Indictment alleges that members of the AFRC/RUF committed widespread sexual
violence against civilian women and girls including brutal rapes, often by
multiple rapists, forced “marriages”, and acts of sexual violence including
abduction of women and girls and use as sex slaves and/or forced into
‘marriages’ and/or subjected to other forms of sexual violence. The ‘wives’
were forced to perform a number of conjugal duties under coercion by their
‘husbands’. The sexual violence against women and girls occurred between 14
February 1998 and 30 June 1998 in Kono District, between 14 February 1998 and
30 September 1998 in Koinadugu District, between about 1 May 1998
and 31(sic) November 1998 in Bombali
District, at all times relevant to the Indictment in Kailahun district, between
6 January 1999 and 28 February 1999 in Freetown and Western Area and
between February 1999 and April 1999 in Port Loko District.
105.
The
Indictment charges that, by their acts
or omissions in relation to these events,
pursuant to Article 6.1 and, or alternatively Article 6.3 of the
Statute, Alex Tamba Brima, Brima Bazzy Kamara and Santigie Borbor Kanu are
individually criminally responsible for the crimes alleged in Counts 6 (Rape, a
crime against humanity punishable under Article 2.g of the Statute), Count 7
(Sexual Slavery and any other form of Sexual Violence, a crime against humanity
punishable under Article 2.g of the Statute), Count 8 (Other Inhumane Act, a
crime against humanity punishable under Article 2.i of the Statute), and, in
addition to or in the alternative, Count 9 (Outrages upon Personal Dignity, a
violation of Article 3 Common to the Geneva Conventions and of Additional
Protocol II, punishable under Article 3.e of the Statute).
3.1. Count 6: Rape (Article
2.g of the Statute)
106.
We endorse the following definition of
rape as affirmed by the ICTY Appeal Chamber in Kunarac[221]:
“the actus
(a)
of the vagina or anus of the victim by
the penis of the perpetrator or any other object used by the perpetrator; or
(b)
of the mouth of the victim by the penis
of the perpetrator;
where
such sexual penetration occurs without the consent of the victim. Consent for
this purpose must be consent given voluntarily, as a result of the victim’s
free will, assessed in the context of the surrounding circumstances.
The mens rea is the intention to effect this
sexual penetration, and the knowledge that it occurs without the consent of the
victim.”
107.
In affirming this definition the ICTY
Appeals Chamber emphasized that “[f]orce or threat of force provides clear
evidence of non-consent, but force is
not an element per se of rape” and there are factors other than force which
would render an act of sexual penetration non-consensual or non-voluntary on
the part of the victim.[222]
108.
The
definition of rape as a crime against humanity is therefore the above
definition where the crime of rape is committed as part of a widespread or
systematic attack against any civilian population, plus the other constitutive
elements of crimes against humanity as set out in paragraphs 40 to 42 above.
3.2.
Count 7: Sexual Slavery and Any Other Form of Sexual Violence (Article
2.g. of the Statute)
109.
The elements of the crime of sexual
slavery within the meaning of Article 2.g of the Statute are:
(1)
The perpetrator exercised any or all of
the powers attaching to the right of ownership over one or more persons, such
as by purchasing, selling, lending or bartering such a person or persons, or by
imposing on them a similar deprivation of liberty.
(2)
The perpetrator caused such person or
persons to engage in one or more acts of
a sexual nature.
(3)
The conduct was committed as part of a
widespread or systematic attack
directed against a civilian population.
(4)
The perpetrator knew that the conduct
was part of or intended the conduct to be part of a widespread or systematic
attack against a civilian population[223].
Elements of Any Other Form of Sexual
Violence:
110.
The
elements of crimes amounting to any other form of sexual violence within the
meaning of Article 2.g of the Statute are:
(1)
The perpetrator committed an act of a
sexual nature against one or more persons or caused such persons to engage in
an act of a sexual nature by force, or by threat of force or coercion, such as
that caused by fear of violence, duress, detention, psychological oppression or
abuse of power, against such person or persons or another person, or by taking
advantage of a coercive environment or such person or person’s incapacity to
give genuine consent.
(2)
Such conduct was of a gravity comparable
to the acts referred to in Art 2.g of the Statute.
(3)
The perpetrator was aware of the factual
circumstances that established the gravity of the conduct.
(4)
The conduct was committed as part of a
widespread or systematic attack directed against any civilian population.
(5)
The perpetrator knew that the conduct
was part of or intended the conduct to be part of a widespread or systematic
attack directed against any civilian population.[224]
111.
The Statute does not define “any other
form of sexual violence”. However, the question was addressed by the Trial
Chamber in Kvocka, which came to the
conclusion that: “sexual violence is broader than rape and includes such crimes
as sexual slavery or molestation”[225] and
“would also include such crimes as sexual mutilation, forced marriage, and
forced abortion as well as the gender related crimes explicitly listed in the
ICC Statute as war crimes and crimes against humanity, namely ‘rape, sexual
slavery, enforced prostitution, forced pregnancy, enforced sterilization’ and
other similar forms of violence.”[226]
3.3. Count 8: Other Inhumane Act (Article 2.i of
the Statute)
112.
The elements of the crime against
humanity of “other inhumane acts” are discussed under Count 11 infra.[227]
3.4.
Count 9: Outrages Upon Personal Dignity (Article 3.e. of the Statute)
113.
We agree with what was said by the ICTY
Trial Chamber in Kunarac[228] that,
“the
offence of outrages upon personal dignity requires
(i) that the accused intentionally committed or
participated in an act or omission which would be generally considered to cause
serious humiliation, degradation or otherwise be a serious attack on human
dignity, and
(ii) that he knew that the act or omission could
have that effect.”
114.
The Appeals Chamber in Kunarac[229]
went on to hold that an outrage upon personal dignity is constituted by “an act
or omission which would be generally considered to cause serious humiliation,
degradation or otherwise be a serious attack on human dignity.”
115.
We therefore consider that the elements
of the crime of outrages upon personal dignity within the meaning of Article
3.e. of the Statute of the
1.
The constitutive elements of violations
of Article 3 common to the Geneva Conventions and of Additional Protocol II.
2.
The accused committed an outrage upon
the personal dignity of the victim.
3.
The humiliation and degradation was so
serious as to be generally considered as an outrage upon personal dignity.
4.
The accused intentionally committed or
participated in an act or omission which would be generally considered to cause
serious humiliation, degradation or otherwise be a serious attack on human
dignity.
5.
The accused knew that the act or
omission could have such an effect.
116.
This definition is assisted by Article
3.e. of the Statute, which prescribes some of the acts constituting outrages
upon personal dignity, viz. humiliating and degrading treatment, rape, enforced
prostitution, and any form of indecent assault.
3.5.
Submissions for Counts 6, 7, 8 and 9
Joint Legal
117.
The
Joint Defence submitted that the Prosecution failed to adduce any evidence to
sustain a conviction for rape, sexual slavery or any other form of sexual
violence, nor had it established the elements of the crime of “other inhumane
act”.[230]
118.
The
separate submissions made by Counsel for each Accused can be briefly summarized
as follows:
Brima
119.
The
Prosecution failed to adduce evidence that Brima raped, or ordered the rape of,
any person, or that he knew or should have known that rape was being committed
by members of the AFRC.[231]
In Kono District, the evidence of certain witnesses was uncorroborated and
there was no evidence that sexual abuse was widespread[232],
whereas in Koinadugu District there was
no evidence against Brima of any acts or omissions in relation to sexual
violence,[233]
nor was there evidence that he could have acted to prevent sexual violence in
that District. As regards the Bombali District, the evidence of Witness TF1-334
gave very little detail and did not mention the presence of any commander in
the District.[234]
Kamara
120.
Kamara
was mentioned in the evidence as being present in Kono, Koinadugu and Bombali
Districts, but the Prosecution failed to show that he was involved in the
commission of any form of sexual violence or that persons under his command, if
any, took part in the alleged incidents.[235]
On the other hand, there was no evidence that Kamara was in Kailahun District
at the relevant time. Furthermore, Kailahun was under the control of the RUF
and there was no evidence that Kamara, or anyone under his control was involved
in the alleged crimes in any part of that district.[236]
121.
Although
Kamara was allegedly present in various parts of
122.
Similarly,
although Kamara was allegedly present the Port Loko District, the evidence
failed to show that he was involved in the commission of offences of sexual
violence. In particular, the evidence of witness TF1-334 was “weak, isolated,
uncorroborated and tainted with ill-motive”.[238]
Further, there was no evidence that persons under his command, if any, took
part in the incidents alleged, nor was there evidence to show that he
participated in a joint criminal enterprise.
Kanu
123.
The
Prosecution did not present any evidence to support the crime of rape or of
sexual slavery of hundreds of women
and girls, or any evidence of inhumane acts or outrages upon human dignity at
AFRC/RUF camps such as Superman camp, Kissi-town (or
124.
Nor
was there any evidence of rape or sexual slavery or outrages against personal
dignity in Kailahun District by the AFRC/RUF at any time relevant to the
Indictment.[240]
Alternatively, there was no evidence showing that Kanu bore individual criminal
responsibility for the crime of sexual slavery, nor was there any mention of
his presence in Kailahun District.[241]
Similarly, there was no evidence that Kanu bore any form of individual criminal
responsibility for the crime of rape in
125.
In
conclusion, no evidence was adduced to show that Kanu bore superior
responsibility or had been involved in a joint criminal enterprise, or bore any
other form of individual criminal
responsibility pursuant to Articles 6.1. or 6.3. of the Statute for the crimes
of rape, sexual slavery, other forms of sexual violence or outrages upon human
dignity in any of the districts cited in the Indictment.[244]
Prosecution
Response
126.
The submissions of the Prosecution in
response to the Defence submissions are briefly summarized as follows:
127.
The
evidence showed that in addition to the regularly described
forms of sexual and gender specific violence frequently suffered by women in
conflict situations, Sierra Leonean women were forced into
marriages and thus were involuntarily converted into becoming what has commonly
been referred to as “bush wives”[245] There
was evidence in this regard of the widespread and systematic nature of the
attack and the awareness of the Accused of the circumstances establishing the
gravity of the conduct.[246]
128.
The Joint Defence Motion made no submission
as to the evidence led with respect to the elements of the crime of outrages
against personal dignity”.[247]
129.
In regard to the Brima submissions, the Prosecution accepted that no
evidence of sexual violence had been led with respect to the villages of Tombendeh,
Fokoiya, Superman Camp/Kissi TownCamp,
130.
In relation to the Kono District,
evidence of sexual violence given by
witnesses who were unable to name the group responsible, could still
incriminate Brima in circumstances where there was other evidence showing the
presence of Junta troops in that area.[249]
Further, the evidence of sexual violence in Kono was part of a pattern that was
repeated throughout
131.
In the Koinadugu and Bombali Districts, there
was evidence of rape, sexual slavery, women being stripped naked on the orders
of Brima, and of many of these women
being handed to the Accused Kanu following the attack.[251]
132.
The Brima Motion made no submission in
respect to the crime bases of Kailahun District,
133.
As regards the Kamara submissions, there
was clear evidence that during the time that Kamara acted as commander in the
Kono District, the crimes outlined in Counts 6 to 9 were committed by AFRC/RUF
troops, “entailing the responsibility of the Second Accused”.[253]
134.
Furthermore, there was evidence that
Kamara was present in the Koinadugu District during the period stated in the
indictment, particularly in
135.
The evidence also established the
widespread and systematic nature of sexual violence in the Bombali District.
For instance, there was the evidence of witness TF1-334 that in Karina,
soldiers under the command of Kamara forcibly raped and captured female
civilians.[255]
136.
There was also the evidence of Witness
TF1-144 that in Kailahun District AFRC soldiers had raped women and tried to
force them into marriage, and that no Junta commander ever interfered. There
was also expert evidence that forced marriage was practised in Kailahun.[256]
137.
In Freetown and the Western Area there
was evidence that rapes were committed at State House, that women and girls were abducted for sexual
purposes during the retreat from Freetown by Kamara and his troops, and that
women were forced into ‘marriages’ with rebel soldiers.[257]
138.
Witness TF1-334 testified that in Port
Loko, Kamara raped a woman after ordering that she be beaten and locked in a
rice box.[258]
139.
With regard to the Kanu submissions,
while it was accepted that no evidence of sexual violence had been led in
respect of the villages of Tomendeh, Fokoiya, SupermanCamp/Kissi Town Camp,
140.
As to the Defence submission that no
evidence that hundreds of women and girls were raped in the Kono District,
Witness TF1-217 gave evidence “indicating mass rape in Koidu Town” and Witness TF1-133 testified to the capture and
rape of female civilians in Kumala. This evidence “indicates that this was a
common practice amongst soldiers and as a consequence hundreds of women were in
fact raped at numerous locations in Kono District at the material time.”[259]
141.
While it was conceded that no evidence was led
of rape in Heremakono in Koinadugu District,
there was sufficient evidence of rape in all other locations in that
District. Further, the accused Kanu was Chief of Staff in Mansofinia and had
responsibility for the fate of the women there.[260]
Kanu was also a member of the Supreme Council in the AFRC/RUF Junta, which made
him a leadership figure within the body that governed the country at that time.[261]
142.
Evidence had been presented that over 200
incidences of rape occurred in the Bombali District between about 1 May and
31(sic) November 1998. There was evidence to show that in the town of
143.
There was also evidence of reports of
rape in the Kailahun District and evidence that Kanu bore superior
responsibility and participated in a joint criminal enterprise.[263]
144.
With regard to
145.
In relation to the Kailahun District,
and to
146.
Furthermore, with respect to the
Districts of Kono, Koinadugu, Bombali and Port Loko, the evidence was
sufficient for a reasonable trier of fact to convict Kanu for the crime of
sexual slavery and sexual violence pursuant to Article 6.1. and Article 6.3. of
the Statute. In particular, in Port Loko in 1999, Kanu was present in Masiaka,
where he held a position of high command, when rape and other forms of sexual
violence were committed by rebel soldiers against civilians.[266]
147.
In respect to Counts 8 and 9, a
reasonable trier of fact could convict Kanu on the basis of his participation
in a joint criminal enterprise in relation to all Districts mentioned in the
Indictment.[267]
148.
The Prosecution accepted that no
evidence of sexual violence had been led with respect to the following
villages: Tomendeh, Fokoiya or Superman Camp/Kissi Town Camp (Kono District); Heremakono
(Koinadugu District).[268]
149.
The Prosecution disputed the submission
in the Kanu Motion that, in relation to Counts 8 and 9, there was no evidence
with respect to the Kono District, Koinadugu District, Bomabali District and
Kailahun District, of the criminal responsibility of Kanu under Articles 6.1.
and 6.3. The Prosecution stated that in the Koinadugu District, Witness TF1-209
was told by Kanu that he had been slitting the bellies of pregnant women and
that the witness, who had been raped, was lucky that her belly had not been
slit. Further, there was the evidence that in Bombali, Kanu disregarded a law
that rebels should not rape civilians, and in Freetown Kanu amputated limbs and
ordered others to do the same. Regarding the remaining districts, the
Prosecution relied on the evidence of joint criminal enterprise.[269]
Brima
Reply
150.
Counsel for Brima replied that the
Prosecution has to prove the accused’s actions were directly or indirectly part
of a widespread and systematic sexual attack on the civilian population, and
concluded that the Prosecution “has not led any evidence to prove that the
First Accused in (sic) criminally liable for sexual violence against the
civilian population.” [270]
151.
In relation to the Kono District,
Counsel for Brima argued that it was important for a witness to identify
whether the perpetrators were from the AFRC or RUF, because the two groups had
different commands, and Brima could not be responsible for “acts committed by
the RUF.”[271]
It was also submitted that only one witness testified that Brima was indirectly
involved in sexual violence, but that evidence was not corroborated.
152.
With respect to the Koinadugu District,
Counsel for Brima submitted that the evidence showed that the perpetrators were
controlled by persons superior in command to Brima.[272]
Kamara
Reply
153.
Counsel for Kamara submitted that it was
clear from the evidence that Kamara was not in command in the Kono District and
cannot be criminally responsible for the crimes committed there.[273]
154.
With respect to the crimes alleged to
have been committed in Koinadugu District, Counsel for Kamara submitted that
the evidence of Witness TF1-153 was contradictory and based on hearsay, whereas
other witnesses did not mention Kamara’s presence there at all. It was further
submitted that there was no evidence that Kamara took part in crimes of sexual
violence or that he was part of a joint criminal enterprise.[274]
Kanu
Reply
155.
Counsel for Kanu, referring to the Kono
District, submitted that the Prosecution
had neither accepted nor refuted the
Defence statement that there was no evidence of rape at Wondedu and therefore
the Prosecution must be taken to acquiesce to it.[275] Counsel
for Kanu also re-stated that the Prosecution had not provided evidence that
hundreds of women and girls were raped in the Kono District or that this was a
common practice amongst the soldiers.[276]
156.
Referring to the Koinadugu District,
Counsel for Kanu submitted that the Prosecution has not provided evidence of
rapes in Monsafinia.[277]
157.
Under the heading Counts 8 – 11, Counsel for Kanu argued that Witness TF1-209
was told by Kanu only that “they” were slitting the bellies of pregnant women,
not that he himself was slitting bellies; therefore there was no evidence
capable of supporting a conviction.[278]
3.6. Findings for Counts 6, 7, 8 and 9
158.
As stated above, it is not the function
of the Trial Chamber under Rule 98 to make determinations of fact having
weighed the credibility and reliability of the evidence. Hence submissions that
the evidence lacks corroboration, or is contradictory and uncorroborated, are
not appropriate under Rule 98.
159.
We note that the Prosecution has
conceded that there was no evidence of rape in respect of the following
locations pleaded in the indictment: Tomendeh, Fokoiya, Superman Camp/Kissi
Town Camp,
160.
However, we find that there is other
evidence[279]
with respect to the to the Districts of Kono,[280]
Koinadugu,[281]
Bombali[282],
Kailahun,[283]
Freetown and Western area[284] and
Port Loko[285]
and in exhibits[286] upon
which, if believed, a reasonable
tribunal of fact could be satisfied beyond reasonable doubt of the guilt of
each of the Accused Brima, Kamara and Kanu for the crime of rape as a crime
against humanity pursuant to Article 2.g of the Statute. Accordingly, we are
satisfied that the evidence is capable of supporting a conviction against each
of the Accused Brima, Kamara and Kanu on Count 6 of the Indictment.
Findings for Count 7 (Sexual
Slavery and Any Other Form of Sexual
Violence):
161.
We note that the Prosecution has
conceded that it has not led evidence in respect of the following locations
pleaded in the indictment: Tomendeh, Fokoiya, Superman Camp/Kissi Town Camp,
162.
However, we find that there is other
evidence[287]
with respect to the Districts of Kono,[288]
Koinadugu,[289]
Bombali,[290]
Kailahun,[291]
Freetown and Western area[292] and
Port Loko[293]
and in exhibits[294] upon
which, if believed, a reasonable
tribunal of fact could be satisfied beyond reasonable doubt of the guilt of
each of the Accused Brima, Kamara and Kanu for the crime of sexual slavery as a
crime against humanity pursuant to Art 2.g of the Statute. Accordingly, we are
satisfied that the evidence is capable of supporting a conviction against each
of the Accused Brima, Kamara and Kanu on Count 7 of the Indictment.
163.
Having found that there is evidence
capable of supporting a conviction on Count 7, we are not required under Rule
98 make any further examination of the evidence relating to this Count.
However, in order to avoid any confusion, we consider it appropriate to state
our view on whether or not there are
facts relating to the crime referred to as “any other form of sexual
violence” which are also capable of
supporting a conviction on Count 7.
164.
Accordingly, having examined the
available evidence[295], we
further find that there is other evidence with respect to the to the Districts
of Kono,[296]
Koinadugu[297],
Bombali[298],
Kailahun[299],
Freetown and Western Area[300] and
Port Loko[301]
and in exhibits[302] upon
which, if believed, a reasonable
tribunal of fact could be satisfied beyond reasonable doubt of the guilt of
each of the Accused Brima, Kamara and Kanu for the crime referred to as “any
other form of sexual violence” as a crime against humanity pursuant to Art 2.g
of the Statute. Accordingly, we are satisfied that the evidence is capable of
supporting a conviction against each of the Accused Brima, Kamara and Kanu on
Count 7 of the Indictment. [303]
Findings for Count 8 (Any Other Inhumane
Acts):
165.
“Other inhumane acts” is a residual
category of crimes against humanity that encompasses acts not specifically
enumerated in Articles 2.a. to h. of the Statute. As held by Trial Chamber 1,
“in the light of the separate and distinct residual category of sexual offences
under Article 2(g), it is impermissible to allege acts of sexual violence
(other than rape, sexual slavery, enforced prostitution, forced pregnancy)
under Article 2(i) since ‘other inhumane acts’, even if residual, must
logically be restrictively interpreted as covering only acts of a non-sexual
nature amounting to an affront to human dignity.”[304]We
consider that there is evidence which falls within that category relating to
the abductions of women and girls and forcing them to submit to ‘marital’
relationships and to perform various conjugal duties.
166.
The acts described in such evidence[305] took
place in the Districts of Kono,[306]
Koinadugu,[307]
Bombali[308],
Kailahun,[309]
Findings for Count
9 (Outrages Upon Personal Dignity):
167.
The
crimes charged under Counts 6 to 8 as crimes against humanity are charged
cumulatively or in the alternative under Count 9 as war crimes, that is, as
violations of Article 3 Common to the Geneva Conventions and of Additional
Protocol II, punishable under Article 3.e. of the Statute. As such, the
constitutive elements of war crimes require that there be a nexus to an armed
conflict and that the victims of the crimes be protected persons in the sense
that that they were not directly taking part in the hostilities at the time of
the alleged crimes.
168.
We
are satisfied that there is evidence, if believed, that the crimes described in
Counts 6 to 8 were committed in the course of an armed conflict against victims
who were not directly taking part in the hostilities. We have already found
that there is evidence, if believed, capable of supporting a conviction on
Counts 6 to 8. Based on the evidence found under Counts 6 to 8, we further find
that there is evidence upon which, if believed, a reasonable tribunal of fact
could be satisfied beyond reasonable doubt of the guilt of each of the Accused
Brima, Kamara and Kanu for the crime of outrages upon personal dignity, as a
violation of Article 3 Common to the Geneva Conventions and of Additional
Protocol II, pursuant to Article 3.e. of the Statute. Accordingly, we are
satisfied that the evidence is capable of supporting a conviction against each
of the Accused Brima, Kamara and Kanu on Count 9 of the Indictment.
169.
We
are not required at this stage to decide whether a crime was committed in the
context of a widespread or systematic attack against any civilian population or
in relation to an armed conflict against protected persons.
4. Counts
10 And 11: Crimes Relating To Physical Violence
170.
The
Indictment alleges that members of the AFRC/RUF subordinate to and/or acting in
concert with the accused Alex Tamba Brima, Brima Bazzy Kamara and Santigi
Borbor Kanu committed widespread
physical violence, including mutilations, against the civilian population in
various locations in the territory of Sierra Leone including Kono District[313] between14 February
1998 and 30 June 1998; Kenema District[314] between 25 May 1997
and about 19 February 1998; Koinadugu District[315] between 14 February
1998 and 30 September 1998; Bombali District[316] between 1 May 1998
and 30 November 1998; Freetown and the Western Area[317] between 6 January
1999 and 28 February 1999; and Port Loko District[318] between February and
April 1999.
171.
In
particular, the Indictment alleges that by their acts or omissions in relation
to these events, each of the accused persons Brima Kamara and Kanu is
individually criminally responsible pursuant to Article 6.1 and/or 6.3 of the
Statute, for the crime of Violence to life, health and physical or mental
well-being of persons, in particular mutilation, a violation of Article 3
Common to the Geneva Conventions and of Additional Protocol II, punishable
under Article 3.a. of the Statute (Count 10)
and in addition to or in the alternative, the crime against humanity of ‘other
inhumane acts’ punishable under Article 2 i. of the Statute (Count 11).
4.1. Count 10: Mutilation (Article 3.a. of the
Statute)
172.
Mutilation
as a violation of Article 3 Common
to the Geneva Convention and of Additional Protocol II occurs where the
perpetrator intentionally cause death or seriously endangers the physical or
mental health of a person by permanently disabling or disfiguring or removing
an organ or appendage of that person, during an international or internal armed
conflict. The Trial Chamber adopts the following elements of the crime of
Mutilation as a violation of Article
3 Common to the Geneva Convention and of Additional Protocol II, as charged
under Count 10, namely that,
(a)
The perpetrator subjected the victim to
mutilation, in particular by permanently disfiguring the victim, or by
permanently disabling or removing an organ or appendage of the victim;
(b)
The perpetrator’s conduct caused death
or seriously endangered the physical or mental health of the victim;
(c)
The perpetrator’s conduct was neither
justified by the medical, dental or hospital treatment of the victim, nor
carried out in the victim’s interest;
(d)
The victim was a person protected under one
or more of the Geneva Conventions of 1949 or was not taking an active part in
the hostilities at the time of the alleged violation;
(e)
The violation took place in the context
of and was associated with an armed conflict; and
(f)
The perpetrator was aware of the factual
circumstances that established the protected status of the victim.
4.2. Count 11: Other Inhumane Acts (Article 2.i.
of the Statute)
173.
Various International Criminal Tribunals have
described the phrase “Other inhumane
acts” as a residual category of crimes against humanity that encompasses acts
not specifically enumerated but which are similar to in gravity or severity
(but not necessarily of the same genus as) those specifically listed in their
respective Statutes.[319] In other words, such
acts must have caused great suffering or serious injury to the physical or
mental health or human dignity of the victim[320] and must have been committed
as part of a widespread or systematic
attack upon a civilian population.[321]
Acts such as mutilation, severe beatings, forced disappearances, forced
prostitution have been held to constitute “other inhumane acts”.[322] In the case of the
Special Court for Sierra Leone, the phrase “other inhumane acts” refers to
those violations not expressly listed in Article 2 a. to h. of the Statute, but
which are similar in gravity to those listed in that Article and which were committed
as part of a widespread or systematic attack upon a civilian population.[323]
174.
The
Trial Chamber adopts the following elements of the crime against humanity of
“other inhumane acts” as charged under Count 11, namely that-
(a)
The
perpetrator inflicted great suffering, or serious injury to body or to mental
or physical health, by means of an inhumane act;
(b)
The
act was of a gravity similar to the acts referred to in Article 2 a. to h. of
the Statute;
(c)
The
perpetrator was aware of the factual circumstances that established the
character or gravity of the act;
(d)
The
act was committed as part of a widespread or systematic attack directed against
a civilian population; and
(e)
The
perpetrator knew or had reason to know that his acts or omissions constituted
part of a widespread or systematic attack directed against a civilian
population.
175.
Individual
criminal responsibility for each of the above crimes is established by evidence
showing that the perpetrator (or his subordinate with the superior’s knowledge)
planned, instigated, ordered, committed or otherwise aided and abetted in the
planning, preparation or execution of the above crimes in the Districts of Kenema,
Kono, Koinadugu, Bombali, Freetown and Western Area and Port Loko as charged in
paragraphs 58 to 64 of the Indictment.[324] For purposes of this
Judgement, the Trial Chamber must determine pursuant to Rule 98 of the Rules
whether or not the Prosecution evidence adduced is capable of supporting a
conviction against each of the three accused persons on Count 10 (Mutilation)
and/or Count 11 (Other inhumane acts).
4.3. Submissions for Counts 10 and 11
Joint
Legal Part
176.
The Defence jointly submitted that the
Prosecution has failed to prove to the required standard, the essential
elements of the crimes under Count 10 or Count 11.
Brima
Motion
177.
In
addition to the joint Defence submissions, Counsel for the accused Brima
submitted that his client should be acquitted in respect of Counts 10 and 11 of
the Indictment as the Prosecution has failed to adduce any evidence to show
that Brima or persons under his command, authority or direction, took part in
the alleged physical violence in Kono District,
Kenema Town and District, Kailahun District and Eastern Province. Instead, the evidence
of Prosecution Witnesses TF1-072, TF1-074, TF1-198 and TF1-206 points to
members of the RUF as being responsible for the alleged physical violence.[325]
Kamara Motion
178.
In
addition to the joint Defence submissions, Counsel for the accused Kamara
submitted that his client should be acquitted in respect of Counts 10 and 11 of
the Indictment as the Prosecution has failed to adduce any evidence to show
that Kamara or persons under his command, authority or direction, took part in
the alleged physical violence. Instead, the evidence of Prosecution Witnesses
TF1-062, TF1-122, TF1-045, TF1-072, TF1-216 and TF1-206 pointed to members of
the RUF as being responsible for the alleged physical violence.[326]
Kanu Motion
179.
In
addition to the joint Defence submissions, Counsel for the accused Kanu
submitted that his client should be acquitted in respect of Counts 10 and 11 of
the Indictment as the Prosecution adduced no evidence of Kanu’s presence in the
Districts of Bo, Kenema and Kailahun
during the periods alleged in the Indictment, nor of his alleged criminal
liability under Articles 6 (1) or 6 (3) of the Statute in those Districts.[327] Counsel further
submitted in relation to-
(a)
Kono District, that the
Prosecution adduced no evidence of the alleged crimes having been committed in
the villages of Kaima/Kayima or Wondedu, nor of Kanu’s presence in those
villages, nor of his participation in the alleged crimes elsewhere in that
District;[328]
(b)
Kenema District, that the Prosecution
adduced no evidence of the alleged beatings or mistreatment of civilians in
custody as alleged;[329]
(c)
Koinadugu District, that the
Prosecution adduced no evidence of Kanu’s presence in the village of Konkoba/
Kontoba during the period alleged in the Indictment, nor of his participation
in the alleged crimes elsewhere in that District;[330]
(d)
Bombali District, that the
Prosecution adduced no evidence of Kanu’s presence in the villages of Lohondi,
Malama and Mamaka during the period alleged in the Indictment, nor of his
participation in the alleged crimes elsewhere in that District;[331]
(e)
Port Loko District, that the
Prosecution failed to specify in the Indictment the names of villages where the
alleged crimes took place and adduced no evidence of Kanu’s participation in
the alleged crimes.[332]
Prosecution Response
180.
The
Prosecution conceded that it led no evidence of the crimes charged under Counts
10 and 11 having been committed in the villages of Konkoba in Koinadugu District, Lohondi, Malam and
Mamaka in Bombali District. The
Prosecution maintained however, that the evidence of the alleged crimes adduced
in respect of all the other Districts specified in the Indictment, proves all
the elements of the crimes to the required standard and is capable of
supporting a conviction under Counts 10 and 11 against each of the accused
Brima, Kamara and Kanu.[333]
181.
The
Prosecution submitted in relation to the charge of “other inhumane acts” (Count
11) that the Prosecution evidence sufficiently demonstrates the mutilations and
other forms of physical violence were
carried out by the Junta troops as part of the widespread attack upon
the civilian population throughout the territory of Sierra Leone, and that
these crimes were committed pursuant to a regular pattern and preconceived plan
to terrorise the civilian population and “punish” them for their perceived
sympathy towards the ECOMOG troops or towards President Kabbah. The evidence
further demonstrates that each of the three accused persons had knowledge of
the general context in which their acts occurred and of the nexus between those
acts and the context.[334]
182.
Regarding
the various locations mentioned in paragraphs 59 to 64 of the Indictment where
offences under Counts 10 and 11 are alleged to have taken place, the
Prosecution submitted in relation to-
(a)
Kono District, that the
evidence of Prosecution Witnesses
including TF1-085, TF1-074, TF1-072, TF1-198, TF1-216, TF1-206, TF1-334,
TF1-167, TF1-272 and TF1-045 demonstrates that the physical violence against
civilians in this District, including amputations and the carving of the
letters “AFRC” and “RUF” into the bodies of civilians, was part of a consistent
pattern of criminal behaviour by the Junta troops to punish civilians for their
betrayal of the Junta and perceived support of the ECOMOG troops and President
Kabbah. The Prosecution evidence further demonstrates that the AFRC and RUF
were working together in a joint criminal enterprise to establish Kono District
as a Junta stronghold and that by virtue of their leadership positions and
membership in the ruling AFRC/RUF Junta and Supreme Council, each of the three
accused persons was a participant in the joint criminal enterprise and is
criminally responsible under Article 6 (1) and/or (3) of the Statute for the
alleged crimes in that District;[335]
(b)
Kenema and Koinadugu Districts, that the
evidence of Prosecution Witnesses
including TF1-122 and TF1-209 demonstrates that the crimes charged under Counts
10 and 11 were carried out in these Districts by members of the AFRC/RUF during
the period of the Junta Government and that by virtue of their leadership
positions and membership in the ruling AFRC/RUF Junta and Supreme Council, each
of the three accused persons was a participant in the joint criminal enterprise
and is criminally responsible under Article 6 (1) and/or (3) of the Statute for
the alleged crimes in those Districts; [336]
(c)
Bombali District, that the
evidence of Prosecution Witnesses
including TF1-153, TF1-157, TF1-334, TF1-033, TF1-158, TF1-167 and TF1-199
demonstrates that Brima ordered the commission of the alleged crimes, while
Kamara and Kanu commanded the troops that committed the alleged crimes in that
District. Furthermore the evidence shows that by virtue of their leadership
positions and membership in the ruling AFRC/RUF Junta and Supreme Council, each
of the three accused persons was a participant in the joint criminal enterprise
and is criminally responsible under Article 6 (1) and/or (3) of the Statute for
the alleged crimes in that District;[337]
(d)
Freetown and Western
Area,
that while Brima and Kanu did not contest the sufficiency of the Prosecution
evidence relating to the crimes charged under Counts 10 and 11, that the
evidence of Prosecution Witnesses
including TF1-334, TF1-167 implicates each of the three accused persons in the
commission of the alleged crimes and as a participant in the joint criminal
enterprise;[338]
(e)
Port Loko District, that the
evidence of Prosecution Witnesses including TF1-023, TF1-253, TF1-167, TF1-085
and TF1-334 demonstrates that the physical violence against civilians,
including amputations was part of a widespread or systematic attack upon the
civilian population by the Junta troops to punish civilians for their perceived
betrayal of the Junta and sympathy towards the ECOMOG troops and to President
Kabbah. Consequently, as members of the ruling AFRC/RUF Junta and Supreme
Council, each of the three accused persons was a participant in the joint
criminal enterprise and is criminally responsible under Article 6 (1) and (3)
of the Statute for the alleged crimes in that District.[339]
Brima Reply
183.
Counsel
for the accused Brima reiterated submissions in relation to Counts 10 and 11
that the Prosecution has failed to adduce any evidence that Brima was
personally involved in the commission of the alleged crimes or that he
exercised any control over the perpetrators of the alleged crimes in the
Districts of Kenema and Kono.[340]
Kamara Reply
184.
Counsel
for the accused Kamara reiterated submissions in relation to Counts 10 and 11
that the Prosecution has failed to adduce sufficient evidence of Kamara’s
criminal liability under Articles 6(1) and/or 6(3) of the Statute for crimes
allegedly committed in Kono District.[341]
Kanu Reply
185.
Counsel
for the accused Kanu reiterated submissions in relation to Counts 10 and 11
that the Prosecution evidence is insufficient and incapable of sustaining a
conviction against Kanu in respect of these two Counts.[342]
4.4. Findings for Counts 10 and 11
186.
Regarding
the Defence submission that the Trial Chamber ought to strike from the Indictment
the names of certain villages in respect of which the Prosecution has failed to
adduce any evidence of crimes having been committed or whose names are spelled
differently in the Indictment from similar locations given by the witnesses, we
note that the Prosecution indeed conceded that no evidence of crime was led
with regard to certain locations named in the Indictment. These include Konkoba
(or Kontoba) in Koinadugu District;
Lohondi, Malam and Mamaka in Bombali
District. In light of the Prosecution evidence referred to below, we find no
merit in the Defence objections and refer to our earlier views contained in Part
III of this Decision.
Findings with regard to
Count 10 (Mutilation):
187.
The
Trial Chamber finds that there is evidence, if believed, upon which a
reasonable tribunal of fact could be satisfied beyond reasonable doubt, of the
guilt of each of the accused Brima, Kamara and Kanu, with respect to the
mutilations (including amputations of limbs and ears) that took place during
the periods alleged in the Indictment at various locations including[343] Tombodu,[344] Small Sefadu[345] Bombafoidu,[346] Yaya,[347] Manikala,[348] Penduma[349] in Kono District;[350] Kabala[351] in Koinadugu District;[352] Karina,[353] Gbendembu,[354] Gbomsamba,[355] Rosos,[356] Kathanta and Dareha,[357] Kamagbo,[358] Mayogbo,[359] Mabaka,[360] Batkanu,[361] Mateboi,[362] Bornoya,[363] Madogbo,[364] Madina Loko[365] in Bombali District;[366] Masiaka,[367] Manarma,[368] Mamamah,[369] Mile Thirty-Eight,[370] in Port Loko District;[371] Allen Town,[372] Kissy,[373] Mammy Yoko,[374] Parsonage Street[375] and Freetown[376] in the Freetown and the Western Area.[377]
188.
The
Trial Chamber accordingly finds that there is evidence capable of supporting a
conviction against each of the accused Brima, Kamara and Kanu for the crime of
Mutilation as a violation of Article 3 Common to the Geneva Convention and of
Additional Protocol II pursuant to Article 3.a. of the Statute, as charged
under Count 10 of the Indictment.
Findings
with regard to Count 11 (Other inhumane acts):
189.
The
Trial Chamber finds that there is evidence, if believed, upon which a
reasonable tribunal of fact could be satisfied beyond reasonable doubt, of the
guilt of each of the accused Brima, Kamara and Kanu, with respect to ‘other
inhumane acts’ (including cannibalism, maiming, burning, carving or tattooing
of the letters AFRC/RUF, disembowelment and grievous wounding of victims)
during the periods alleged in the Indictment at various locations including[378] Koidu Geya,[379] Bomboafoidu,[380] Foendor,[381] Kayima,[382] Koidu[383] in Kono District; Kenema Town[384] in Kenema District; Rosos[385] in Bombali District;
Kumala/Kumalu[386] in Koinadugu District, Masiaka[387] in Port Loko District and Freetown.[388]
190.
Accordingly,
the Trial Chamber finds that there is evidence capable of supporting a
conviction against each of the accused Brima, Kamara and Kanu for the crime
against humanity of ‘Other inhumane acts’ pursuant to Article 2.i. of the
Statute, as charged under Count 11 of the Indictment.
5. Count
12: Crimes Relating to Child Soldiers
191.
The
Accused are charged in Count 12 with 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, a serious violation of international
humanitarian law punishable under Article 4.c of the Statute. The Indictment alleges that at all relevant
times throughout the
192. The Indictment charges that, by their acts or omissions in relation to these events, Alex Tamba Brima, Brima Bazzy Kamara and Santigie Borbor Kanu pursuant Article 6.1. and, or alternatively, Article 6.3. of the Statute, are individually criminally responsible for the said crimes.
193.
Article
4.c. of the Statute states:
The
c. Conscripting or enlisting children under the
age of 15 years into armed forces or groups or using them to participate
actively in hostilities.
194.
We endorse the finding of Trial Chamber I
that the elements of the crime are as follows:
i.
The perpetrator conscripted or enlisted
one or more persons into an armed force or group or used one or more persons to
participate actively in hostilities;
ii.
Such person or persons were under the
age of 15 years;
iii.
The perpetrator knew or should have
known that such person or persons were under the age of 15 years;
iv.
The conduct took place in the context of
and was associated with an armed conflict.
v.
The perpetrator was aware of factual
circumstances that established the existence of an armed conflict. [389]
195.
In addition to these elements, there are
the other constitutive elements of Article 4 crimes mentioned earlier.
Brima
Motion
196.
Counsel
for Brima submitted that there was no evidence that Brima individually or in
concert with others ordered the abduction of children or their use as soldiers;
the evidence suggested that the victims were either under the control of other
people, or that the identification of the accused was mistaken, or that the
evidence was unreliable.[390]
Kamara
Motion
197.
Counsel
for Kamara submitted that there were “difficulties in appreciating the proofs
of the evidence […] to do with age verification” and “the knowledge by the
Accused that the child was under the stipulated age.” Counsel concluded that
there was no reference to Kamara in any of the evidence led by the Prosecution.[391]
Kanu
Motion
198.
Counsel
for submitted that the evidence did not suggest any evidentiary link to Kanu:
“[at]
the least with respect to the charge of “routinely conscripting, enlisting or
using boys and girls under the age of 15 to participate in active
hostilities”. In this regard a clear
distinction should be made between said actions on the one hand and alleged
training of individuals in locations.”[392]
199.
Counsel
added that the word “ routinely” formed an integral part of the indictment and
“no evidence has been adduced for this element on part of Accused Kanu”.
Prosecution
Response
200.
The
Prosecution submitted that there was evidence that Brima knew that children
were being used. According to the Prosecution, there was evidence that children
were trained in camps in Kono and Rosos when Brima was present, and that muster
parades of Small Boy Units were held in front of him. Brima also distributed
children who had been abducted to various commanders.[393]
Moreover, Brima gave command of the 4th. Battalion, which had about
13 Small Boy Units to Witness TF1-167.[394]
The Prosecution further submitted that the same evidence also implicated
Kamara.
201.
Referring
to Kanu’s submissions, the Prosecution stated that the use of the word
‘routinely’ in an indictment did not
elevate it to the status of an element of the offence and that it went to the
degree of culpability rather than to criminal liability[395].
The Prosecution added that the evidence of witnesses TF1-334 and TF1-167 showed
that Kanu was in charge of training children at
Brima
Reply
202.
Counsel for Brima stated that he “stands
by the arguments put forward” in submissions and “maintains (the accused Brima)
bears no criminal responsibility in respect of the factual allegations
enumerated in count 12”[397]
Kamara
Reply
203.
Counsel for Kamara restated his earlier
submission that the Prosecution had failed to produce any evidence that Kamara
had participated in the crimes.[398]
Kanu
Reply
204.
Counsel for the accused Kanu did not
make any reply to this count.
205. We find that there is evidence upon which, if believed, a reasonable tribunal of fact could be satisfied beyond reasonable doubt of the guilt of each of the accused Brima, Kamara and Kanu 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 as a serious violation of international humanitarian law pursuant to Article 4.c. of the Statute. Accordingly, we are satisfied that the evidence is capable of supporting a conviction against each of the Accused Brima, Kamara and Kanu under Count 12 or the Indictment.[399]
6. Count
13: Abductions and Forced Labour
206.
Count
13 alleges the crime of enslavement by abductions and forced labour, not sexual
slavery. Although sexual slavery can lead to a conviction for enslavement, the
crime of sexual slavery has been charged separately under Count 7 and is dealt with
elsewhere in this Decision.
207.
The
Accused are charged under Count 13 with enslavement, a crime against humanity,
punishable under Article 2.c. of the Statute, in that “[at] all times relevant
to this Indictment, AFRC/RUF engaged in widespread and large scale abductions
of civilians and use of civilians as forced labour. Forced labour included
domestic labour and use as diamond miners.”
208.
The
Indictment alleges that the abductions and forced labour included the districts
of Kenema, Kono, Koinadugu, Bombali,
Kailahun,
209.
In
Kunarac, the ICTY Trial Chamber held
that “enslavement as a crime against
humanity in customary international law consisted of the exercise of any or all
of the powers attaching to the right of ownership over a person”[400]
(actus
210.
The
Kunarac Trial Chamber held that
“[u]nder this definition, indications of enslavement include elements of
control and ownership; the restriction or control of an individual’s autonomy,
freedom of choice or freedom of movement; and, often, the accruing of some gain
to the perpetrator. The consent or free will of the victim is absent. It is
often rendered impossible or irrelevant by, for example, the threat or use of
force or other forms of coercion; the fear of violence, deception or false
promises; the abuse of power; the victim’s position of vulnerability; detention
or captivity, psychological oppression or socio-economic conditions. Further
indications of enslavement include exploitation; the exaction of forced or
compulsory labour or service, often without remuneration and often, though not
necessarily, involving physical hardship; sex; prostitution; and human
trafficking.”[402]
211.
The
ICTY Appeals Chamber further clarified this definition by finding that “lack of
consent” is not an element of the crime of enslavement, although it may be a
significant
issue
in terms of evidence of the status of the alleged victim.[403]
212.
The
definition set forth in Kunarac was
later reiterated in Krnojelav, in
which it was stated that enslavement as a crime against humanity was the
“exercise of any or all of the powers attaching to the right of ownership over
a person. The actus
213.
In
Krnojelav, the allegations concerned
enslavement for the purpose of forced labour.[405]
It was held by the Chamber that to establish forced labour constituting
enslavement, the Prosecutor must demonstrate that “the Accused (or persons for
whose actions he is criminally responsible) forced the detainees to work, that
he (or they) exercised any or all of the powers attaching to the right of
ownership over them, and that he (or they) exercised those powers
intentionally.”[406]
214.
The
ICC Preparatory Commission Elements of Crimes, designed to assist ICC judges in
their interpretation and application of the subject matter articles of the Rome
Statute, sets forth the following version of the elements of the crime of
enslavement:
1.
“The perpetrator exercised any or all of
the powers attaching to the right of ownership over one or more persons, such
as by purchasing, selling, lending or bartering such a person or persons, or by
imposing on them a similar deprivation of liberty.
2.
The conduct was committed as part of a
widespread or systematic attack directed against a civilian population.
3.
The perpetrator knew that the conduct
was part of or intended the conduct to be part of a widespread or systematic
attack directed against a civilian population.”[407]
215.
It can be seen that this definition
incorporates the definition given in Kunarac
with the common elements of crimes against humanity. As such, we find that
it is the correct definition to apply to the crime of enslavement charged under
Article 2.c. of the Statute.
216.
The
Joint Defence submitted that the evidence “falls short in proving all three
elements”. It was argued by the Joint Defence that the factors adopted by the
Appeals Chamber in Kunarac have not
been established, i.e. “control over someone’s movement, control of physical
environment, psychological control, measures taken to prevent or deter escape,
force, threat of force or coercion, duration, assertion of exclusivity,
subjection to cruel treatment and abuse, control of sexuality and forced
labour”.[408]
The Joint Defence claimed that since these factors had not been established by
the Prosecution, the Motion for Acquittal should be granted as to Count 13.[409]
217.
Counsel
for Brima submitted that the Prosecution had failed to adduce sufficient
evidence of abductions and forced mining in the Kenema District. It argued that
the evidence given by Witness TF1-045, a former RUF combatant, about mining in
Tongo Field in the Kenema District was unreliable. Further, Witness TF1-122
demonstrated that he had no knowledge of what had happened at Tongo except for
what he had been told, and his evidence was also unreliable.[410]
218.
Counsel
for Kamara submitted that the Prosecution did not lead any direct or indirect
evidence against Kamara to prove the offence of enslavement in both Kenema and
Kailahun Districts. It was further submitted that Kamara was never present in
the said Districts during the period alleged in the Indictment. Also, there was
mention of Kamara being allegedly present in “Koinadugu District, in particular
Kabala Town, Bombali, Port Loko and Kono Districts respectively as well as
Freetown and the Western Area during the period above stated”, but the evidence
does not indicate that Kamara was directly or otherwise involved in the
commission of the stated crimes.[411]
219.
With
respect to the crimes of enslavement alleged to have occurred in the locations
named in the Indictment, Counsel for Kanu submitted in relation to-
(a)
Kenema District, that there
was no evidence of Kanu’s individual criminal responsibility for the crime of
enslavement in this District. The evidence was that Kanu was not even present
in the District during the whole of the indictment period;
(b)
Kono District that there
was no evidence of domestic labour and mining in Tombodu between 14 February
1998 and January 2000 and no evidence of enslavement in Tomendeh or Wondedu
between 14 February 1998 and January 2000;
(c)
Koinadugu District, that there
was no evidence of enslavement in Heremakono or Kamadugu between 14 February
and
(d)
Kailahun District, that there
was no evidence that Kanu had any individual criminal responsibility for the
crime of enslavement in this District, nor that he was even present in the
District during the whole of the indictment period;
(e)
Freetown and Western
Area,
that there was no evidence of abduction of civilians, including children, and
their use as forced labour at Peacock Farm in the Western Area;
(f)
Port Loko District, that there
was no evidence of enslavement in about the month of February 1999. In the
alternative, there was no evidence that Kanu had any individual criminal
responsibility for enslavement in this District. The evidence does not mention
any involvement by Kanu in enslavement, nor through the committing, planning,
instigating, aiding and abetting, nor the ordering of this crime;
(g)
All Districts, there was no evidence
that Kanu would have borne any superior responsibility or been involved in a
joint criminal enterprise.[412]
220.
In
response to the Joint Defence Motion, the Prosecution submitted that the
indicia of enslavement form a consistent pattern in the evidence, which shows
that civilians were routinely abducted to carry looted goods, perform domestic
work, go on food-finding missions mine diamonds and participate in military
training. The Prosecution submitted that this pattern demonstrated the widespread
and systematic nature of this crime and was evidence from which the knowledge
and complicity of the three Accused persons may be inferred.[413]
221.
In
response to Brima, the Prosecution submitted that, according to Witness
TF1-045, about 300-500 people mined under AFRC control in 1997 and that “[t]he
indicia of enslavement were present whenever a ‘government work day’ was
announced”. The Prosecution argued that the evidence of Witness TF1-045
regarding “the capture at gunpoint, undressing and lining up of civilians at
the mining area and the beating and serious torture of civilians refusing to
mine is echoed in the evidence of Witness TF1-062”, and that the evidence of
both of these witnesses is corroborated by the evidence of Witness TF1-122.
222.
As
regards the Kono District, Koindadugu District, Bombali District, Kailahun
District,
223.
In
its reply to Kamara, the Prosecution submitted that there was evidence of the
Junta’s modus operandi whereby villages were attacked and civilians abducted
and forced to become fighters, and/or carry goods, and/or perform domestic
tasks. Also, in the Kono and Kenema Districts there was evidence to suggest
that civilians were forced to work in mines supervised by Junta troops. The
Prosecution argued that Kamara bore criminal responsibility for these crimes as
an active participant as a commander and/or participated in the joint criminal
enterprise given his membership in the Supreme Council and his leadership
and/or command position with the AFRC. It was further submitted that in some
cases Kamara perpetrated the crimes directly.[415]
224.
In
answer to the Kanu Defence Motion, the Prosecution submitted in relation to-
(a)
Kenema District, that there
was evidence of abductions in Fadugu in Kenema. On the basis of Kanu’s
participation in a joint criminal enterprise, a reasonable tribunal of fact
could convict him for crimes committed in the Kenema District in respect of
Count 13;
(b)
Kono District, that The
Prosecution accepted that there was no evidence with respect to Tomendeh.
However, it submitted that there was evidence with respect to Tombodu and
Wondedu. The Prosecution submitted that at Wondedu (or Wendedu), Witness
TF1-217 was threatened with death if he did not allow his sister to be taken by
Junta soldiers, after which she was put in a vehicle with 10 other young girls
and driven away. The Prosecution further submitted that on the basis of Kanu’s
participation in a joint criminal enterprise, there was evidence on which a
reasonable tribunal of fact could convict him on crimes committed in Kono
District in respect of Count 13;
(c)
Koinadugu District, that the
Prosecution accepted that there was no evidence with respect to Kamadugu and
Heremakono. It submitted, however, that there was evidence in respect of
(d)
Bombali District, that since
the Kanu Motion makes no submission with respect to the Bombali District, the
Prosecution assumed that Kanu accepted that there was sufficient evidence
against him with respect to this District;
(e)
Kailahun District, that the
Prosecution submitted that there was evidence that would enable a reasonable
tribunal of fact to convict Kanu for crimes committed in this District in
respect of Count 13 on the basis of his participation in a joint criminal
enterprise;
(f)
Freetown and the
Western Area,
that the Prosecution accepted that there was no evidence with respect to
Peacock Farm, but contested the assertion that there was no evidence of
superior responsibility or of participation in a joint criminal enterprise in
relation to Kanu in this location. The Prosecution submitted that there was
evidence that would enable a reasonable tribunal of fact to convict Kanu on the
basis of his participation in a joint criminal enterprise and also by virtue of
his position as a commander pursuant to Article 6(3) of the Statute;[416]
(g)
Port Loko District, that The
Prosecution submitted that, contrary to what was stated in the Kanu
Motion, there was evidence that Kanu
ordered a group of civilians to walk to Sumbuya in a line with a rebel in front
of and behind each civilian. The Prosecution contended that there was evidence
on which a reasonable trier of fact could convict Kanu for crimes committed in
(h)
All Districts
mentioned in the Indictment for Count 13, that the Prosecution submitted
that, based on the evidence, a reasonable tribunal of fact could convict Kanu
of enslavement for all the indicted districts on the basis of his participation
in a joint criminal enterprise as well as on the basis of his position of
superior authority pursuant to Article 6(3) of the Statute.[418]
225.
The
Joint Defence submitted that in Count 13, “the Prosecution lacks probative and
substantiate (sic) evidence to prove its case. The Prosecution relies on the
fact that the Accused held a leadership position in the AFRC/RUF and was an
integral member of the Supreme Council and is therefore guilty on the basis of
joint criminal enterprise. The Prosecution failed to lead evidence of material
fact that the conduct of the accused makes him jointly responsible for the
crimes charged.”[419]
226.
We
note that although the Joint Defence Reply has been filed on behalf of two of
the Accused – Brima and Kamara – the reply quoted in the above paragraph speaks
of “Accused” in the singular. We will assume that Counsel for Brima and Kamara
meant the submission to apply to both of the Accused.
227.
Counsel
for Brima submitted that there was no evidence to show that Brima was liable
for the crime of enslavement in Kenema.[420]
Counsel argued that the deputy-chairman SAJ Musa was in charge, while Witness
TF1-114 was responsible for implementing the law and punishing.
228.
Counsel
for Kamara submitted that in relation to Counts 12, 13 and 14, the Prosecution
failed to adduce any evidence to show that Kamara participated directly or
indirectly in the crimes and thus, the Prosecution had failed to prove that
Kamara bore any criminal responsibility for the alleged crimes.[421]
229.
Counsel
for Kanu submitted in relation to Kono District that the fact that soldiers put
10 girls in a vehicle at Wendedu and drove them away is not evidence of
enslavement. Counsel submitted in relation to Port Loko District that although
the Prosecution referred in its Response to enslavement in Sumbuya, it failed
to present any evidence of enslavement in Tendakum or Nonkoba.[422]
230.
The
submissions by the Brima Defence that the evidence or witnesses TF1-045 and
TF1-122 was unreliable are not appropriate under Rule 98. In dealing with a
motion under Rule 98, the Trial Chamber does not consider questions of
credibility or reliability. Those are matters which should be left to the end
of the case.[423]
231.
We
do not agree with the Brima Defence that there is no evidence against Brima for
enslavement in Kenema. There is evidence, if believed, that the AFRC had armed
children, including little boys, guarding mines in Cyborg Pit;[424]
that diamond miners were beaten if they refused to work and were forced to hand
over diamonds to the AFRC/RUF;[425] and
that the AFRC forced civilians to work the mines at Tongo Field;[426]
they were taken there under armed guard and beaten, tortured and even killed if
they refused to mine.[427]
That evidence, if accepted, is capable of establishing Brima’s responsibility
for those crimes under Articles 6.1. and 6.3.
232.
There
is similar, and other, evidence against the accused Kamara and Kanu in the
evidence already referred to, which, if believed, would be capable of proving
their responsibility under Articles 6.1. and/or 6.3. of the Statute for the
crimes charged in Count 13.
233.
With
regard to the Kanu Defence’s argument that the fact that soldiers at Wendedu
drove away 10 girls in a vehicle[428]
is not evidence of enslavement, we are of the view that, standing alone it is
not, but when considered together with the other evidence available to prove
the count, it can indeed be evidence of enslavement, if believed.
234.
The
Kanu Defence submitted that there was no evidence of enslavement at Tendakum or
Nonkoba in the Port Loko District. On our examination of the evidence, this
submission appears to be correct in regard to Tendakum. However, there was
evidence of enslavement at Nonkoba. Witness TF1-256 testified that sometime in
1999 he and his family were in a group of 55 people captured by soldiers and
held in a garden about half a mile from Nonkoba. There were already about 100
captives from Koya. The soldiers gave
the witness work to do. At Nonkoba the witness and others were stripped down to
their pants and locked in the guardroom and later in a small box. They were not
told why. [429]
235.
The
Indictment, in paragraph 73 of Count 13, alleges that “AFRC/RUF forces also
abducted and used as forced labour civilians from various locations [in] the Port Loko District, including Tendakum and Nonkoba.” [Emphasis added]. So the absence
of evidence in relation to Tendakum does not invalidate the allegation in the
Indictment with respect to the Port Loko District. While there is no evidence
with regard to Tendakum which the Accused would be required to answer, the
evidence adduced in relation to Sumbuya[430]
is in keeping with the allegations in Count 13, even though it was not referred
to by name.
236.
We
note that the Prosecution has conceded that there was no evidence of
enslavement in respect of the following locations pleaded in the Indictment:
Tomendeh (Kono District)[431],
Kamadugu and Heremakono (Koinadugu District)[432],
Peacock Farm (
237.
However,
we find that there is other evidence with respect to the Districts of Kenema[434] Kono[435],
Koinadugu[436],
Bombali[437],
Kailahun[438],
Freetown and the Western Area[439],
Port Loko[440], upon which,
if believed, a reasonable
tribunal of fact could be satisfied beyond reasonable doubt of the guilt of
each of the Accused Brima, Kamara and Kanu for the crime of Enslavement as a
crime against humanity pursuant to Article 2.c. of the Statute as charged under
Count 13 of the Indictment. Accordingly, we are satisfied that the evidence is
capable of supporting a conviction against each of the Accused Brima, Kamara
and Kanu on Count 13 of the Indictment.
7. Count
14: Crimes Relating to Burning and Looting
238.
The
Accused are charged in Count 14 with the crime of Pillage, a violation of
Article 3 common to the Geneva Conventions and of Additional Protocol II,
punishable under Article 3.f. of the Statute. It is charged that “At all times
relevant to this Indictment, AFRC/RUF engaged in widespread unlawful taking and
destruction by burning of civilian property”. This looting and burning is
alleged to have included the Districts of Bo, Koinadugu, Kono, Bombali,
239.
It
is further alleged that by their acts or omissions in relation to these events,
each of the three Accused are individually criminally responsible for the crime
of Pillage pursuant to Article 6.1. and /or Article 6.3. of the Statute.
7.1.
Count 14: Pillage (Article 3.f. of the Statute)
240.
Trial
Chamber I was of the opinion that the crime of pillage included the following
constitutive elements:
(1)
“The perpetrator appropriated private or
public property;
(2)
The perpetrator intended to deprive the
owner of the property and to appropriate it for private or personal use;
(3)
The appropriation was without the
consent of the owner.”[441]
Additional
to this definition are the constitutive elements of Common Article 3 crimes
mentioned earlier.
241.
That
definition of the crime of pillage is apparently based on the ICC Preparatory
Commission Elements of Crimes.[442]
The Commission included the words “private or personal use” in the elements of
the crime of pillage to exclude the possibility that appropriations justified
by military necessity might fall within the definition. Nevertheless, the
definition is framed to apply to a broad range of situations. As was stated by
Trial Chamber I, “the ICTY in the case of Celebici
noted that ‘plunder’ should be understood as encompassing acts traditionally
described as ‘pillage’, and that pillage extends to cases of ‘organised’ and
‘systematic’ seizure of property from protected persons as well as to ‘acts of
looting committed by individual soldiers for their private gain’”.[443]
242.
Inclusion
of the element of “private or personal use” in the definition appears to be at
variance with Celebici, since it may
not include ‘organized’ and ‘systematic’ seizure of property. It is therefore
our view that the requirement of “private or personal use” is unduly
restrictive and ought not to be an element of the crime of pillage.
243.
Accordingly,
we conclude that the crime of pillage within the meaning of Article 3.f. of the
Statute is comprised of the elements constitutive of Common Article 3 crimes,
together with the following specific elements:
1.
The
perpetrator appropriated property.
2.
The
appropriation was without the consent of the owner.
3.
The
perpetrator intended to deprive the owner of the property.
244.
The
primary Joint Defence submission was that burning does not “fulfil the elements
of pillage”, since pillage requires appropriation, whereas burning does not.
The Joint Defence claimed that this argument is strengthened when Article 5.b.
of the Statute is considered (Article 5.b. provides for the Special Court to
have the power to prosecute persons under the Malicious Damage Act, 1861, which
provides for offences relating to the wanton destruction of property, such as
setting fire to dwelling-houses, public buildings and other buildings).
245.
However,
the Joint Defence submitted in the alternative that if the Trial Chamber finds
that burning is an element of pillage, then each Defence team would rely on its
separate submissions on the facts. The Joint Defence submitted that the
conclusion was justified, whether based on the present submissions or the
separate submissions on the facts by each Defence team, that there was no
evidence to support this Count.[444]
246.
Counsel
for Brima submitted that there was insufficient evidence that Brima ordered
looting and burning as alleged. There was no evidence that Brima bore any
individual criminal responsibility, nor any superior responsibility, nor that
he participated in a joint criminal enterprise.[445]
247.
Counsel
for Kamara submitted that the evidence was insufficient to support the charge
of pillage against Kamara in respect of the districts named in Count 14.[446]
248.
Counsel
for Kanu submitted in relation to-
(a)
Bo District, that there
was no evidence of looting or burning in Telu, Sembehun, or Mamboma between 1
and
(b)
Koinadugu District, that there was no
evidence that Kanu bore any form of individual criminal responsibility for
pillage in this District. Further, there was no evidence of looting or burning
in Heremakono and Kamadugu between 14 February and
(c)
Kono District, that there was no
evidence that Kanu bore any form of individual criminal responsibility for
pillage in this District, and no evidence of any burning or looting in Foindu
between 14 February and 30 June 1998;
(d)
Freetown and the
Western Area, that
there was no evidence of looting in Calaba Town, Fourah Bay, Upgun area, or
Pademba Road between 6 January and 28 February 1999;
(e)
All Districts
mentioned in Count 14, that
there was no evidence that Kanu bore superior responsibility, nor that he
participated in a joint criminal enterprise.[447]
249.
In
reply to the Joint Defence submission, the Prosecution submitted that
destroying property by burning, “as part of a series of acts involving ruthless
plundering to remove anything of value followed by the total removal of the
value of the buildings themselves, falls within the concept of ‘wilful and
unlawful appropriation of property.’”[448]
The Prosecution argued that ‘appropriation’ does not exclude the act of burning,
because “before third party property can be burnt it must be appropriated in
the sense that the owner is no longer in control of his property. Moreover, the
violent nature of pillage reflects the broader range of appropriation of
property, including property appropriated for the mere purpose of depriving the
owner of that property.”[449]
250.
The
Prosecution also challenged the Defence submission regarding the scope of
Article 5. The Prosecution argument was that “the offence under Sierra Leonean
law refers only to ‘wanton destruction of property under the Malicious Damage
Act’ and does not cover war crimes.” Accordingly, where the acts in question
amount to war crimes, “Article 3 of the Statute, as lex specialis, prevails over the general law of wanton destruction
of property.”
251.
The
Prosecution submitted in the alternative that if “burning” had been incorrectly
pleaded as “pillage”, the Trial Chamber had the power to reclassify the
offence.[450]
252.
In
regard to Brima’s submissions, the Prosecution conceded that it had not led
evidence with respect to Telu, Sembehun, Mamboma in Bo District, Heremakono and Kamadugu in Koinadugu District, Foindu in Kono
District and
253.
Responding
to Brima’s submissions, the Prosecution submitted in relation to-
(a)
Bo District, that the attacks on
Bo District occurred during the time of the AFRC government;
(b)
Koinadugu District, that there was
evidence that burning and looting were part of the modus operandi of attacks on
civilians, which occurred in many villages;
(c)
Kono District, that
(d)
Bombali District, that Brima ordered
the burning of villages. He ordered that the town of
(e)
Freetown and the
Western Area,
that the evidence of targeted burning was overwhelming. Brima ordered all
police stations to be burned and ordered the burning of
254.
In
regard to Kamara’s submissions, the Prosecution noted that Kamara was simply
making a general assertion that there was insufficient evidence of Kamara’s
criminal liability. However, the Prosecution contended that there was evidence
establishing the criminal liability of Kamara for looting and burning. The Prosecution
referred to evidence of various incidents, including one where Kamara and his
troops completely looted Lunsar and removed a safe from a bank in Makeni.[453]
255.
Responding
to Kanu’s submissions, the Prosecution submitted in relation to-
(a)
Bo District, that it had not led
evidence with respect to Telu, Sembehun and Mamboma. However, it submitted that
reasonable tribunal of fact could convict Kanu for crimes committed in the Bo
District on the basis of his participation in a joint criminal enterprise;
(b)
Koinadugu District, that it had not led
evidence with respect to Heremakono and Kamadugu. However, it submitted that
there is evidence that the burning of houses and the taking of property were
part of the modus operandi of attacks on civilians which occurred in many
villages and that Kanu was present during most of the attacks;
(c)
Kono District, that it led no
evidence with respect to Foindu. However, there was evidence that Sewafe was
burned down in the presence of senior commanders, and
(d)
Bombali District, that since the Kanu
Motion made no submission on the Bombali District, the Prosecution assumed that
Kanu accepted the sufficiency of the evidence against him with respect to this
District;
(e)
Freetown and the
Western Area, that there was
evidence of burning in
256.
The
Joint Defence did not make any specific reply to the Prosecution’s Response in
relation to Count 14.
257.
The
Brima Defence submitted that the Prosecution has not stated what common plan
was shared, who formed the joint enterprise, “to indicate with certitude that
the looting was reasonably foreseeable to the First Accused.” The Brima Defence
added that Johnny Paul Koroma and Mosquito, who were superior in command to
Brima, engineered the looting, so Brima cannot be said to bear the greatest
responsibility for the crimes.[455]
258.
Counsel
for Kamara submitted that in relation to Counts 12, 13 and 14, the Prosecution
failed to adduce any evidence to show that Kamara participated directly or
indirectly in the crimes and thus the Prosecution had failed to prove that
Kamara bore any criminal responsibility for the alleged crimes.[456]
259.
Counsel
for Kanu submitted that the evidence referred to by the Prosecution does not support
the allegation that Kanu was present at the destruction of Gandorhun in Kono
District.
260.
The
Kanu Defence submitted that the Prosecution has not refuted that there was no
evidence of looting in
261.
We
note that the Prosecution has conceded that it has not led evidence in respect
of the following locations pleaded in the Indictment: Villages of Telu,
Sembehun, Mamboma (Bo District), Heremakono, Kamadugu (Koinadugu District),
Foindu (Kono District)[458],
and – with regard to the Accused Brima –
7.2. Destruction by Burning of Civilian Property:
262.
Upon
examination of the available evidence, we find that there is evidence, if
believed, that is capable of implicating each of the Accused in the destruction
of civilian property by burning.[460]
However, what we are called upon by the parties to decide is whether or not
acts of destruction of civilian property by burning fall within the definition
of “pillage”. The Defence contends that it does not, whereas the Prosecution
argues that the allegation of destruction by burning of civilian property has
been correctly brought as pillage under Count 14.
263.
In
determining this issue, there are a number of possibilities to consider. For
instance, it may be the case that such a charge is more appropriately brought
under Article 3.b. of the Statute (Collective
Punishments), or under Article 3.d. (Acts
of Terrorism), or perhaps under Article 4(a) (Attacks against the civilian population).
264.
It
may also be the case that such a crime could be charged under Article 3 of the
Statute as a violation of Additional Protocol II, even though it is not among
the offences mentioned in Article 3. Article 3 of the Statute is concerned with
violations of Article 3 Common to the Geneva Conventions and of Additional
Protocol II. These violations are expressed to “include” the offences
enumerated there, implying that the enumerated offences are not an exhaustive list
of the possible violations. In Tadic
the ICTY Appeals Chamber held that it had jurisdiction over several crimes that
are not mentioned in its Statute.[461]
It was of the view that the crimes mentioned in Article 3 of the ICTY Statute
were merely illustrative, since Article 3 - before enumerating the violations
- provides that they ‘shall include but
not be limited to’ the list of offences.
265.
Article
13(1) of Additional Protocol II states that “the civilian population and
individual civilians shall enjoy general protection against the dangers arising
from military operations.” The ICTY Trial Chamber in Hadzihasanovic, elaborating on the history of this provision,
stated that the
“history
of the diplomatic negotiations leading to the adoption of Protocol II demonstrates
that, at the beginning of the negotiations, inserting a specific provision on
the general protection of civilian property had been envisaged. That article
was removed in order to simplify the proposed texts. However, the Commentary of
the International Committee of the Red Cross on Article 13 states that securing
general protection of the civilian population in conformity with this Article
is ‘based on the general principles relating to the protection of the civilian
population which apply irrespective of whether the conflict is an international
or an internal one.’ The principle of
duplicity and the principle of proportionality are among these principles.
These principles imply that attacks against dwellings, schools and other
buildings occupied by civilians are prohibited unless the buildings have become
legitimate military objectives.”[462]
Citing
distinguished academic authors in this field, the ICTY concluded that the
“protection of civilian property may therefore be the necessary corollary to
the protection of the civilian population in certain cases.”[463]
266.
This
decision accords with the jurisprudence of the ICTY that has held, referring to
the ICJ Advisory Opinion on the Legality of the Threat or Use of Nuclear
Weapons, that “deliberate attacks on civilians or civilian objects are
absolutely prohibited by international humanitarian law.”[464]
267.
Given
the jurisprudence of the ICTY, it is arguable that the protection of civilian
property is a necessary corollary to the protection of the civilian population
referred to in established customary international law and provided for in
Article 13(1) of Protocol II. Thus the conclusion may be justified that the
268.
We are of the view that it is more appropriate
to defer a final decision on this issue until the end of the trial. For the
purpose of Rule 98, even if the evidence of burning is put aside completely, we
are satisfied that there is other evidence capable of supporting a conviction
on Count 14.
269.
Notwithstanding the Defence argument that
“burning” as alleged in Count 14 is not an element of pillage, there is no
dispute between the parties that “appropriation” includes the act of looting.
Even allowing for the concession made by the Prosecution in respect of
locations for which no evidence was led, we find that there is evidence[465]
of looting with respect to the Districts of Bo[466],
Koinadugu[467],
Kono[468],
Bombali[469],
and Freetown and the Western Area[470] upon
which, if believed, a reasonable tribunal of fact could be satisfied beyond
reasonable doubt of the guilt of each of the
Accused Brima, Kamara and Kanu for the crime of pillage as a violation
of Article 3 Common to the Geneva Conventions and of Additional Protocol II
pursuant to Article 3.f. of the Statute. Accordingly, pursuant to Rule 98, we
are satisfied that the evidence is capable of supporting a conviction against
each of the Accused Brima, Kamara and Kanu on Count 14 of the Indictment.
270.
The
Indictment cumulatively charges each of the Accused, Alex Tamba Brima, Brima
Bazzy Kamara and Santigie Borbor Kanu for the crimes in Counts 1 through 14
under different modes of liability. These are:
(a) Individual criminal responsibility pursuant
to Article 6.1. of the Statute in that:
(i)
each
Accused planned, instigated, ordered, or committed the said crimes, or
(ii)
each
Accused otherwise aided and abetted in the planning, preparation, or execution
of the said crimes, or
(iii)
the
said crimes were within a joint criminal enterprise, or were a reasonably
foreseeable consequence of the joint criminal enterprise, in which each Accused
participated.[471]
(b) In
addition, or alternatively, individual criminal responsibility pursuant to
Article 6.3. of the Statute for the crimes committed by their subordinates
whilst each of the Accused was holding a
position of authority.
271.
In
reviewing the evidence adduced by the Prosecution in relation to each of the 14
Counts, the Trial Chamber has applied the test of whether there is evidence –
if believed – upon which a reasonable tribunal of fact could be satisfied beyond
reasonable doubt of the guilt of the accused on the particular charge in
question. In other words, the Rule 98 standard for determining the sufficiency
is not evidence on which a tribunal should convict, but evidence on which it
could convict.[472]
272.
We
have confined our deliberations to specific issues raised by the Joint Defence
and by Counsel for each Accused in support of their Motions. Where no such
issues have been raised, we have not come to any conclusions nor made any
findings. Submissions made by the Defence on individual criminal responsibility
relating to a specific count in the Indictment have been addressed by the Trial
Chamber under the relevant count, rather than under one or more of the forms of
criminal conduct which are discussed in this section.
273.
We
stress once again that, pursuant to Rule 98, a ruling that there is evidence
capable of supporting a conviction on a particular charge does not necessarily
mean that the Trial Chamber will, at the end of the case, return a conviction
on that charge.[473]
274.
In
our findings which follow, we have considered all of the available evidence,
and we have repeated some – but not all - of the references to such evidence
which were mentioned in relation to the individual counts in the Indictment.
8.
Individual Criminal Responsibility under Article 6.1 of the Statute
275.
Article
6.1. of the Statute lists the forms of criminal conduct which, provided that
all other necessary conditions are satisfied, may result in an accused
incurring individual criminal responsibility for one or more of the crimes
provided for in the Statute.[474] Articles 6.1. provides:
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.
276.
The
Trial Chamber in the ICTY case of Kordic[475]
made the following observations on the object of the ICTY equivalent to Article
6.1. ( that is, Article 7 (1) of the International Statute):
“The principle that an individual may be
held criminally responsible for planning, assisting, participating or aiding
and abetting in the commission of a crime is firmly based in customary
international law . Article 7(1) reflects the principle of criminal law that
criminal liability does not attach solely to individuals who physically commit
a crime but may also extend to those who participate in and contribute to a
crime in various ways, when such participation is sufficiently connected to the
crime, following principles of accomplice liability. The various forms of
liability listed in Article 7(1) may be divided between principal perpetrators
and accomplices. Article7(1) may thus be regarded as intending to ensure that
all those who either engage directly in the perpetration of a crime under the
Statute, or otherwise contribute to its perpetration, are held accountable.”
277.
An
individual can be said to have “committed” a crime when he or she physically
perpetrates the relevant criminal act or engenders a culpable omission in
violation of a rule of criminal law.[476]
There can be several perpetrators in relation to the same crime where the
conduct of each one of them fulfils the requisite elements of the definition of
the substantive offence.[477]
278.
The
Joint Defence submitted that “committing’ refers to physically participating in
a crime, directly or indirectly, or failing to act when such duty exists,
coupled with the requisite knowledge.”[478]
279.
The
Defence argued that the ICTY Appeals Chamber in the Blaskic Appeal Judgement
stated that the mens rea for crimes
against humanity required “knowledge on the part of the accused that there is
an attack on the civilian population as well as knowledge that this act is part
thereof”[479] and that therefore the standard is
not whether the accused “knowingly took the risk of participating in the
implementation of the (purported) ideology, policy or plan underlying the
alleged crimes against humanity.”[480]
The Joint Defence contends that no reasonable tribunal of fact could find that
the evidence of the Prosecution has shown that “either three Accused” had this
knowledge, beyond this mere “taking of risk”.[481]
Brima Motion
280.
Counsel
for Brima submitted that the Prosecution failed to prove that Brima bears any
individual criminal responsibility under Article 6.1. for any of the charges
against him.
Prosecution Response
281.
In
response, the Prosecution agreed that in the Blaskic Appeal Judgement, the ICTY
Appeals Chamber held that the mens rea
applicable to crimes against humanity requires knowledge on the part of the
accused that there is an attack on the civilian population, as well as
knowledge that his act is part thereof. In keeping with that mens rea, the Prosecution submitted that
a reasonable trier of fact could conclude on the basis of the evidence that all
three Accused had knowledge that there was an attack on the civilian
population, as well as knowledge that their acts were part thereof.[482]
282.
We
do not agree with the Joint Defence submission that there is no evidence to the
Rule 98 standard of “knowledge” on the part of the three Accused. There is
evidence[483]
that the accused Brima committed crimes in the districts named in the
indictment.[484]
Equally there is evidence in this regard implicating the accused Kamara[485]
and Kanu.[486]
283.
Accordingly,
we are satisfied that there is evidence upon which, if believed, a reasonable
tribunal of fact could hold beyond reasonable doubt that all three Accused were
aware that a widespread or systematic attack on the civilian population was
taking place and that their actions were part of the attack.
284.
“Planning”
implies that one or several persons contemplate designing the commission of a
crime at both the preparatory and execution phases.[487]
The actus
285.
Where
an accused is found guilty of having committed a crime, he or she cannot at the
same time be convicted of having planned the same crime.[490]
286.
The
Joint Defence, relying on a passage from the Brdjanin Trial Judgement[491],
submitted that responsibility for planning a crime only incurs if it is
demonstrated that the Accused “substantially (was) involved at the preparatory
stage of that crime in the concrete form it took, which implies that he
possessed sufficient knowledge thereof in advance.” The Defence contended that
the Prosecution has not adduced any evidence of planning in this sense.[492]
Prosecution Response
287.
The
Prosecution pointed out in its submissions that the Joint Defence Motion
expresses the Defence’s views on “planning” and “ordering”, “but do not
themselves challenge any of the counts in the Indictment.”[493]
288.
The
Prosecution submitted that the statement of the Trial Chamber in Brdjanin cited by the Defence was made
in the context of a case where the accused did not physically perpetrate any of
the crimes established, “and may be seen as a conservative definition of
planning”. The Prosecution cited further from the same passage in Brdjanin that this “knowledge
requirement should not, however, be understood to mean that the Accused would
have to be intimate with every detail of the acts committed by the physical
perpetrators”.[494]
289.
The
Kanu Reply claimed that the Prosecution has failed to indicate any authorities
which justify a deviation from the Brdjanin Trial Chamber definition of
planning.[495]
290.
Our
view of the passage from the Brdjanin
Trial Judgement upon which the Joint Defence relies is that the Chamber there
was referring to the particular circumstances of an accused in that case. It held
that, since the accused did not physically perpetrate the crimes which had been
committed, he could only be held responsible for planning them if it were shown
that, by being involved at the preparatory stage of the crimes in the concrete
form they took, he had the required knowledge that there was a likelihood that
a crime would be committed. The Chamber found that although the accused had
supported a ‘Strategic Plan’, he had participated in its implementation merely
by virtue of his authority as President of the ARK Crisis Staff and his public
utterances. The evidence was insufficient to prove that the accused was
involved in the immediate preparation of the concrete (as distinct from abstract) crimes.
291.
In
other words, the prosecution in that case was unable to demonstrate that the
accused had been involved in any planning which had substantially contributed
to the crimes committed. We do not think that that decision is a departure from
the definition of “planning” we have stated above.
292.
Applying
the Rule 98 standard, the Trial Chamber is satisfied that there is evidence[496]
upon which, if believed, a reasonable tribunal of fact could find beyond
reasonable doubt that each of the three Accused Brima[497],
Kamara[498]
and Kanu[499]planned
the crimes charged in the Indictment in Counts 1 through 14 at both the
preparatory and execution phases, that the crimes were actually committed and
that each of the Accused intended the crimes to be committed.
293.
“Instigating”
means prompting another to commit an offence.[500]
Both acts and omissions may constitute instigating, which covers express as
well as implied conduct.[501]
A nexus between the instigation and the perpetration must be proved, but it is
not necessary to demonstrate that the crime would not have been perpetrated
without the involvement of the accused.[502]
The actus
294.
The
Joint Defence have made no submissions on this form of criminal conduct. Having
noted this, the Prosecution has consequently not addressed the issue.[506]
295.
Responsibility
for ordering requires proof that a person in a position of authority uses that
authority to instruct another to commit an offence.[507]
A formal superior/subordinate relationship between the accused and the
perpetrator is not required.[508]
It is sufficient that the accused possessed the authority to order the
commission of an offence and that such authority can be reasonably implied.[509]
There is no requirement that the order be given in writing or in any particular
form, and the existence of an order may be proven through circumstantial
evidence.[510]
It is not necessary for the order to be given by the superior directly to the
person(s) who perform(s) the actus
296.
The
actus
297.
The
Joint Defence submitted that the Prosecution has not adduced any evidence of
“ordering”. It argued that the mens rea
for ordering must require that the Accused had an “awareness of a higher
likelihood of risk and a volitional element must incorporated (sic) in the
legal standard.”[514]Any
lesser standard could amount to a form of strict liability, as there is always
a possibility that violations could occur during the course of military
operations.[515]
The Joint Defence contends that these observations are relevant to the present
case “now that it is the Prosecution’s assertion, based upon the testimony of
Colonel Iron that the AFRC qualifies as a regular army.”[516]
Prosecution Response
298.
In
response, the Prosecution observed that the Defence has expressed its views on
aspects of the elements of “ordering” but has not challenged any of the counts
in the Indictment.[517]
299.
The
Prosecution did not dispute the definition of the requisite mens rea stated by the Defence. However,
it submitted that, contrary to the argument of the Defence, the evidence
establishes a volitional element and a direct link between the relevant orders
and the commission of crimes, as well as a pattern of conduct from which the
requisite direct intent may be inferred.[518]
300.
We
are is satisfied on the basis of the evidence[519]
available, if believed, that a reasonable tribunal of fact could find beyond
reasonable doubt that all three Accused Brima[520],
Kamara[521]
and Kanu[522],
possessed the authority to give orders, that their orders were in fact implemented
by other individuals and that they knowingly and wilfully used their positions
of authority to order those individuals to commit the crimes charged in the
Indictment in Counts 1 through 14.
301.
The
actus
302.
The
mens rea requires that the accused
knew that his acts would assist the commission of the crime by the perpetrator
or 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.[524]
303.
In
relation to “aiding and abetting” the Joint Defence made a similar submission to that made under
“Committing” above, that is, that no reasonable tribunal of fact could find
that the three Accused had the knowledge required for the mens rea, beyond a mere “taking of risk”.[525]
According to the Joint Defence, “the actus
Prosecution Response
304.
The
Prosecution submitted that the statement by the Joint Defence regarding the
required actus
305.
In
addition, the Prosecution, while agreeing with the Joint Defence that the
presence of the accused at the scene of the crime is not conclusive, submitted
that it is equally true that presence at the scene of the crime is also not a
prerequisite for aiding and abetting. Further, in the present case the evidence
extends well beyond mere presence, and “in any event, the presence of a
superior at the scene of a crime can be perceived as an important indicium of encouragement or support.”[529]
306.
We
reject the Joint Defence submission regarding the actus
307.
The Trial Chamber is satisfied that
there is evidence,[530]
if believed, that each of the three Accused Brima[531],
Kamara[532]
and Kanu[533]
aided and abetted in the planning, preparation or execution of the crimes
charged in Counts 1 through 14 of the Indictment. The relevant evidence, if
believed, suggests that each of the three Accused facilitated and assisted in
the commission of the said crimes and encouraged and gave moral support to the
physical perpetrators thereof,[534]
and that their contribution to the commission of these crimes was substantial.
The evidence also establishes, if believed, that each of the three Accused knew
that the principal offenders intended to commit the said crimes and that his
acts assisted the principal offenders in the commission of the said crimes. [535]
9. Individual Criminal Responsibility by
Participation in a Joint Criminal
308.
Article
6.1. does not make explicit reference to “joint criminal enterprise”. However,
the Appeals Chamber of the ICTY has previously held that participation in a
joint criminal enterprise is a form of liability which existed in customary
international law at the time (that is in 1992), and that such participation is
a form of “commission” under (the equivalent provision to) Article 6.1. of the
Statute.[536]
309.
Three
categories of joint criminal enterprise have been identified by the ICTY
Appeals Chamber in Tadic.[537]
310.
The
actus
311.
The
mens rea differs according to the
category of joint criminal enterprise. The different mens rea are as follows:
1. “Basic” form: the intent to
perpetrate a certain crime (this being the shared intent on the part of all
co-perpetrators).[539]
2. “Systemic”
form: personal knowledge of the system of ill-treatment, and the intent to
further it.[540]
3. “Extended”
form: the intention to participate in and further the common criminal purpose
of a group and to contribute to the joint criminal enterprise or in any event
to the commission of a crime by the group. In addition, responsibility for a
crime other than the one which was part of the common design arises “only if,
under the circumstances of the case, (i) it was foreseeable that such a crime
might be perpetrated by one or other members of the group and (ii) the accused
willingly took that risk”.[541]
312.
The
Joint Defence argued that the Indictment does not make clear which category of
joint criminal enterprise is alleged, although it is probably the third
category.[542]
As regards the first category, the Joint Defence submitted that mens rea has not been established.[543]
The Joint Defence also submitted that the Prosecution has not met the criteria
required for the third category[544]
and has failed to prove the existence of a common plan.[545]
313.
The
Prosecution submitted in response that the Indictment clearly alleges all three
categories of joint criminal enterprise[546]and
that the evidential requirements in relation to these categories have been met.[547]
314.
Counsel
for Brima and Kamara submitted that
although the Prosecution claims that the Indictment alleges all three
categories of joint criminal enterprise, “it is of considerable importance for
both the Trial Chamber and the accused to know with some precision from the
indictment whether any particular crime charged is alleged by the prosecution
to fall within the object of the enterprise or to go beyond that object”.[548]
Counsel for the two Accused argued that the Prosecution has not given specific
evidence as to what crimes fell within the joint criminal enterprise or which
ones were reasonably foreseeable. They contended that the “Prosecution has
chosen not to articulate the specific aspects of the accused individuals’
behaviour that links them to an alleged joint criminal enterprise.”[549]
315.
Counsel for Brima and Kamara made the
further submission that the Prosecution has failed to “establish the common
criminal intent that existed amongst the members of the Supreme Council[550]
to commit the said crimes as alleged in the indictment or that the crimes were
reasonably foreseeable by the Accused from the joint enterprise of the Supreme
Council.”[551]
316.
Counsel
for Kanu submitted that the Prosecution has never opted for the exact category
of joint criminal enterprise it will pursue at trial. Counsel says that
although the Prosecution claims that all three categories of joint criminal
enterprise are clearly alleged in the Indictment, this is not correct since
paragraph 34 of the Indictment only refers to “actions within the JCE or were a
reasonably foreseeable consequence of the joint criminal enterprise”, but no option for the exact category of joint
criminal enterprise was specified.[552]
317.
Counsel
for Kanu also relied on the ruling in Krnojelac
that the Prosecution was not allowed to extend the interpretation of the
Indictment in its Pre-Trial Brief from a basic form of joint criminal
enterprise to an extended one and that “it would not be fair to the Accused to
allow the Prosecution to rely upon this extended form of joint criminal
enterprise liability with respect to any of the crimes alleged in the
Indictment in the absence of such an amendment to the Indictment to plead it
expressly”.[553]
318.
Counsel
for Kanu submitted that because of the failure by the Prosecution to opt for
the exact category of joint criminal enterprise as a form of liability, the
Defence application should be granted in that “the liability form of JCE should
be dismissed.”[554]
319.
Another
argument put forward by Counsel for Kanu is in relation to paragraph 33 of the
Prosecution Response, in which it is asserted that “[t]here is no requirement
that the plurality of persons be organized in a military, political or
administrative structure and membership in the enterprise may be fluid so long
as the common aim remains constant.” However, Counsel for Kanu submitted that
if there was a common aim it clearly changed. According to Counsel for Kanu,
the original aim of the AFRC was changed when it was ousted by ECOMOG in
February 1998 and split into separate groups, each with separate aims and
objectives different from the initial alleged common design. Counsel relied on Blagojevic[555], where it was held that if the
“objective is fundamentally different in nature and scope from the common plan
or design to which the participants originally agreed”, and any escalation of
the original objective occurs, this must either be agreed to if a person is to
incur criminal responsibility under the JCE concept or that escalation must be
a natural and foreseeable consequence of the original enterprise. Counsel for
Kanu submitted that “No proof has been adduced for this situation”.[556]
320.
The
last submission by Counsel for Kanu was in relation to the crime of
extermination, charged in Count 3. With reference to the Kailahun District, it was
submitted that no reasonable tribunal of fact could convict Kanu of
participating in a joint criminal enterprise “without any further specification
thereof.”[557]
321.
The
Prosecution claimed that the Indictment clearly alleges all three categories of
joint criminal enterprise whereas the Defence says that it does not. Counsel
for Kanu, relying on Krnojelac,
argues that the Prosecution is not permitted to extend the interpretation of
the Indictment in its Pre-Trial Brief from a basic form of joint criminal
enterprise to an extended one. We do not think that the Prosecution has done
so.
322.
We
have perused the Prosecution’s Pre-Trial Brief and noted the following:
(i)
In
paragraph 1, the Prosecutor states that the Pre-Trial Brief is submitted “to
provide a preliminary indication as to the factual allegations and the points
of law and legal issues pertinent to the case against all three accused persons.”
(ii)
It is recited in paragraph 124 that: “All three accused in this case entered
pleas of not guilty to all crimes which they are charged, thereby placing every
element of the crime in issue.”
(iii)
In
Section F – “Criminal Responsibility Under Articles 6(1) and 6(3)” – “Modes of
Participation Explained” – the Prosecution deals with: a. Planning, Instigating
and Ordering, b. Committing, c. Aiding and Abetting, d. “Aiding and Abetting”
vs. “Joint Criminal Enterprise”.
(iv)
Under
“Joint Criminal Enterprise – Categories”, paragraph 209 states:
Three
different categories of joint criminal enterprise have been recognised:
a.
Same
criminal intention – cases where each member voluntarily
participates in one aspect of the common design and intends the resulting
crimes.
b.
Acting
pursuant to concerted plan -
cases where there exists an organised system to commit the alleged
crimes and where the accused actively participates in its enforcement; is aware
of its nature; and, intends to further its purpose. This mens rea may be inferred from the position of authority of the
accused within the system. Existence of a formal or informal agreement between
the members is not required; nor is their presence at the time or place of the
crime.
c.
Foreseeable
conduct outside the common design – cases involving a common
criminal plan where one of the participants commits a crime which is outside
the common plan, but nevertheless a natural and foreseeable consequence of its
execution. Such a non-envisaged crime is considered foreseeable when the
participants, although not intending this result, were able to predict it and
regardless continued to participate in the plan.[558]
323. We
have quoted from the Prosecution’s Pre-Trial Brief merely to show that the
three categories of joint criminal enterprise have been specified there, and
not just the basic form. However, whether the Indictment has been sufficiently
pleaded or is defective in form is not a matter which falls within the scope of
Rule 98. A challenge to the form of the Indictment should have been raised in a
preliminary motion under Rule 72. We will not make any findings on the issue in
the present decision. Regarding the Joint Defence submission that the
Indictment does not make it clear which form of joint criminal enterprise is
alleged, we can only observe that the procedure under Rule 72 is designed to
enable an accused to obtain further information in order to fully understand
the nature of the charges brought against him.
324. In regard to the
argument put forward by Counsel for Kanu in relation to paragraph 33 of the
Prosecution’s Response, no basis has been established for the assertion that
the common aim changed in that the AFRC “fell apart into separate groups with
clearly separate aims and objectives, if at all, which did not match with the
initial alleged common design”. Counsel for Kanu has not referred us to any
specific evidence which would support that submission. We therefore find the
submission without merit.
325. For the purposes of
Rule 98, the Trial Chamber is satisfied that a reasonable tribunal of fact
could, on the basis of the evidence[559]
before it, if believed, find beyond reasonable doubt that each of the three
Accused and other persons identified in the Indictment[560]
participated in a joint criminal enterprise to commit the crimes
charged in the Indictment in Counts 1 through 14.[561]
326. The
evidence referred to, if believed, is capable of establishing all three
categories of joint criminal enterprise. However, the Trial Chamber will not at
this stage make a final determination as to the precise basis of liability of
each Accused for participation in a joint criminal enterprise, or whether an
Accused ought to be acquitted of an alternative basis of liability. A
determination as to the liability of each Accused depends to a certain extent
on issues of fact and the weight to be attached to certain evidence, which
calls for an assessment of the credibility and reliability of that evidence.
These are issues which do not arise for determination until the judgment phase.[562]
10. Individual Criminal Responsibility under
Article 6.3 of the Statute
327. In addition, or alternatively,
the Indictment charges pursuant to Article 6.3. of the Statute that the
Accused, while holding positions of superior responsibility and exercising
effective control over their subordinates, are each individually criminally
responsible for the said crimes in that each Accused is responsible for the
criminal acts of his subordinates which he knew or had reason to know that the
subordinate was about to commit or had done so and which each Accused failed to
take the necessary and reasonable measures to prevent or to punish the
perpetrators thereof.[563]
328.
Article
6.3. of the Statute provides:
The fact that any of
the acts referred to in articles 2 to 4 of the present Statute was committed by
a subordinate does not relieve his or her superior of criminal responsibility
if he or she knew or had reason to know that the subordinate was about to
commit such acts or had done so and the superior had failed to take the
necessary and reasonable measures to prevent such acts or to punish the
perpetrators thereof.
As
is evident from its terms, there is a three-pronged test for liability pursuant
to Article 6.3., which is as follows:
329. The Joint Defence submitted
that the Prosecution has failed to provide evidence that any of the Accused can
be held liable under Article 6.3. of the Statute.[565]
According to the Joint Defence, none of the Accused held the position or
influence required to establish effective control over the acts of his
subordinates. The Joint Defence referred to the expert evidence of Colonel Iron
and claim that it fails to establish effective command and control on the part
of the three Accused.[566]
330. It was submitted on
behalf of Brima that no evidence has been adduced to prove that Brima had
superior responsibility and that the Prosecution has failed to establish the
three necessary elements.
331. The Prosecution replied
that the evidence taken as a whole shows that each of the three Accused
exercised effective control over his subordinates. The Prosecution disputed
that the evidence of Colonel Iron fails to establish effective control. The
Prosecution then went on to refer to various pieces of evidence which, it claimed,
prove superior responsibility. It also referred to evidence which it said
demonstrates that all three Accused had both actual and constructive knowledge
of the crimes alleged in the Indictment. Further, the Prosecution submitted
that the evidence referred to shows that all three Accused persons failed to
use their power to prevent or punish the crimes committed by their
subordinates.[567]
332. The
Trial Chamber is satisfied that there is evidence,[568]
if believed, upon which a reasonable tribunal of fact could be satisfied beyond
reasonable doubt that the Accused, Brima[569],
Kamara[570]
and Kanu[571]
are each responsible pursuant to Article 6.3. of the Statute for the crimes
charged in the Indictment in Counts 1 through 14. There is evidence that each
of the Accused held positions of authority, exercised effective control over
subordinates, knew or had reason to know that subordinates were about to commit
or had committed the said crimes and failed to prevent those crimes or to
punish the perpetrators thereof.
FOR THE FOREGOING
REASONS THE TRIAL CHAMBER DISMISSES the Joint Legal Part Defence Motion
for Judgement of Acquittal Under Rule 98, the Brima - Motion for Acquittal
Pursuant to Rule 98, the Brima Bazzy Kamara Defence Motion for Judgement of
Acquittal of the Second Accused – Brima Bazzy Kamara, and the Kanu – Factual
Part Defence Motion for Judgement of Acquittal Under Rule 98 in their entirety.
Honourable Justice Julia Sebutinde appends a
Separate Concurring Opinion to this Unanimous Decision.
Done at
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Justice Teresa Doherty |
Justice Richard Lussick Presiding Judge |
Justice Julia Sebutinde |
[Seal
of the
SEPARATE
CONCURRING OPINION OF HON. JUSTICE JULIA SEBUTINDE
I.
INTRODUCTION
II.
COUNT 7 OFFENDS THE
RULE AGAINST DUPLICITY
“The Indictment must not be
double, that is to say, no one count of the Indictment should charge the
Defendant with having committed two or more separate offences. Duplicity in a
count is a matter of form, not evidence.”[573]
“Count 7: Sexual Slavery and any other form of sexual
violence, a crime against humanity punishable under Article 2.g of the
Statute”. [Emphasis added]
“Article 2: Crimes Against Humanity.
The
g. Rape, sexual slavery,
enforced prostitution, forced pregnancy and any other form of sexual
violence;…” [Emphasis added.]
III.
COUNT 8 IS REDUNDANT
“…By their acts or omissions in
relation to these events, Alex Tamba Brima, Brima Bazzy Kamara and Santigie
Borbor Kanu, pursuant to Article 6.1. and or alternatively, Article 6.3. of the
Statute, are individually criminally responsible for the crimes alleged below:
Count
6:
Rape, a crime against humanity, punishable under Article 2.g. of the Statute;
And
Count
7:
Sexual slavery and any other form of sexual violence, a crime against humanity,
punishable under Article 2.g. of the Statute; And
Count
8:
Other Inhumane act, a crime against humanity, punishable under Article 2.i. of
the Statute;
In addition to or in the Alternative:
Count
9:
Outrages upon personal dignity, a violation of Article 3 Common to the Geneva
Conventions and of Additional Protocol II, punishable under Article 3.e. of the
Statute.”
The Historical
Perspective
“In the present motion, the
Prosecution is seeking our leave to amend the already existing consolidated
indictment on which the proceedings are now based, in order to add one more
count, and one count only, based on Forced Marriage. The question to be
addressed in these circumstances is whether this additional count or offence as
the case is, is new in terms of its being a complete novelty in the arsenal of
all the counts that constitute the entire consolidated indictment.
Our immediate reflection on this
issue that we have raised is that the count related to forced marriage
which the prosecution is seeking our leave to add to the consolidated indictment
is as much sexual, indeed, a gender offence as those that were included
in the initial individual indictments and that feature in the current
consolidated indictment on which this application to amend is based.
We would like to say here that
Forced Marriage is in fact what we would like to classify as a ‘kindred
offence’ to those that exist in the indictment in the view of the commonality
of the ingredients needed to prove offences of this nature……”[577]
[emphasis added]
“…the particulars embodied in the
Consolidated Indictment in respect of Counts 3 and 4 cannot be validly
interpreted to be of an inclusive nature and as not excluding the broad range
of unlawful acts which can lead to serious physical and mental harm, especially
having regard to the formula “and any
other form of sexual violence” in Article 2.g. [of the Statute] creating a
separate specific residual category of sexual violence, of the same kind as
rape, sexual slavery, enforced prostitution and forced pregnancy.
In light of the separate and
distinct residual category of sexual offences under Article 2.g., it is
impermissible to allege acts of sexual violence (other than rape, sexual
slavery, enforced prostitution and forced pregnancy) under Article 2.i. since
“other inhumane acts”, even if residual, must logically be restrictively
interpreted as covering only those acts of a non-sexual nature amounting to an
affront to human dignity.
The clear legislative intent
behind the statutory formula “any other
form of sexual violence” in Article 2.g. is the creation of a category of
offences of sexual violence of a character that do not amount to any of the
earlier enumerated sexual crimes, and that to permit such other forms of sexual
violence to be charged as “other inhumane acts” offends against the rule
against multiplicity and uncertainty….”[580]
Done at
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Justice Julia Sebutinde |
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[Seal of the
[1] Prosecutor v. Alex Tamba Brima et al., SCSL-04-16-T,
Scheduling Order on Filing of a Motion for Judgement of Acquittal,
[2] Prosecutor v. Alex Tamba Brima et al., SCSL-04-16-T,
Further Amended Consolidated Indictment,
[3] Scheduling Order supra note 1.
[4] Prosecutor v. Alex Tamba Brima et al., SCSL-04-16-T, Decision on Urgent Defence Request
under Rule 54 with Respect to Filing of Motion for Acquittal, 19 January 2006.
[5] Prosecutor v. Oric,
ICTY IT-03-68, Oral Judgement, Transcripts,
[6] See
for example Prosecutor v. Simic et al.,
ICTY IT-95-9-T, Written Reasons for Decision on Motions for Acquittal,
[7] Prosecutor v. Jelisic, ICTY IT-95-10-A,
Judgement,
[8] Prosecutor v. Bagasora et al., ICTR
98-41-T, Decision on Motion for Judgement of Acquittal,
[9] Jelisic Appeal Chamber Judgement, supra note 7, para. 55.
[10] See Bagasora Decision on Motion for
Judgement of Acquittal, supra note 8, para. 8; Prosecutor
v. Kamuhanda, ICTR-99-54A-T, Decision on Kamuhanda’s Motion for Partial
Acquittal Pursuant to Rule 98bis of
the Rules of Procedure and Evidence, 20 August 2002, para. 17; Prosecutor v. Nahimana et al., ICTR-99-52-T,
Reasons for Oral Decision of 17 September 2002 on the Motions for Acquittal, [“Nahimana Reasons for Oral Decision 17
September 2002”], para. 16; Prosecutor v.
Rwamakuba, ICTR-98-44C-R98bis, Decision on Defence Motion for Judgement of
Acquittal,
[11] Prosecutor v. Slobodan Milosevic, ICTY
IT-02-54-T, Decision on Motion for Judgement of Acquittal, 16 June 2004, [“Milosevic Decision on Motion for
Judgement of Acquittal”], para. 13 (6).
[12] Prosecutor v. Strugar, ICTY IT-01-42-T,
Decision on Defence Motion Requesting Judgement of Acquittal Pursuant to Rule 98bis, 21 June 2004, [“Strugar Decision on Motion for Judgement
of Acquittal”], para. 20; Prosecutor v.
Hadzihasanovic and Kubura, ICTY IT-01-47-T, Decision on Motions for
Acquittal Pursuant to Rule 98bis of the Rules of Procedure and Evidence, 27
September 2004, [“Hadzihasanovic
Decision on Motions for Acquittal”], para. 20.
[13] Prosecutor v. Alex Tamba Brima et al.,
SCSL-04-16-T, Brima Motion For Acquittal Pursuant to Rule 98, 12 December 2005,
[“Brima Motion”], para.44; Prosecutor v. Alex Tamba Brima et al.,
SCSL-04-16-T, Kanu Factual Part Defence Motion for Judgement of Acquittal Under
Rule 98, 13 December 2005, [“Kanu Motion”], paras. 13,
15, 16, 18, 21, 34, 36, 38, 42, 46, 47, 59, 78, 79, 80, 82, 83, 88, 91, 93, 96,
97, 99 and 100; Prosecutor v. Alex Tamba Brima et al., SCSL-04-16-T,
Joint Legal Reply to Prosecution Response to Defence Motions For Judgement of
Acquittal, [“Joint Defence Reply”], paras. 8 and 9; Prosecutor v. Alex Tamba Brima
et al., SCSL-04-16-T, Confidential Kanu Reply to Prosecution Response to
Defence Motions For Judgement of Acquittal, 27 January 2006, [“Kanu Reply”],
paras. 3, 4 and 5.
[14] Prosecutor
v. Alex Tamba Brima et al., SCSL-04-16-T, Prosecution Response to
Defence Motions For Judgement of Acquittal Pursuant to Rule 98, 23 January
2006, [“Response”], para. 7.
[15] Ibid., para. 393.
[16] Prosecutor v. Norman et al., SCSL-2004-14-T-473,
Decision on Motions for Judgement of Acquittal Pursuant to Rule 98, 21 October
2005, [“Norman Judgement of Acquittal”].
[17] Jelisic Appeal Chamber Judgement, supra note 7, paras. 35-38.
[18] Kanu
Reply supra note 13, para.4; Joint Defence Reply, supra note 13, paras. 8-9.
[19] See
Indictment supra note 2, paras. 42-79.
[20] Kanu
Reply supra note 13, para. 6.
[21] Letter of 22 December 2000
from the President of the Security Council to the Secretary General, S/2000/1234, para. 1 which rejects the Secretary General’s
recommendation as per Report of the
Secretary General on the Establishment of an SCSL,
[22] Prosecutor
v. Alex Tamba Brima et al., SCSL-04-16-T, Joint Legal Part of the
Defence Motion for Judgement of Acquittal Under Rule 98, 13 December 2005,
[“Joint Legal Part”], para. 18.
[23] Response, supra note 14, para. 13 and 14.
[24] Ibid., at para. 15.
[25] Prosecutor v. Norman, Decision on the Preliminary Defence Motion on the Lack of Personal Jurisdiction Filed on behalf of the Accused Fofana, SCSL-04-14-PT, 3 March 2004. [“Norman Decision on Lack of Personal Jurisdiction”], para. 27.
[26] Ibid., para. 44.
[27] Letter Dated 12 January 2001 from the
Secretary-General addressed to the President of the Security Council,
S/2001/40,
[28] Letter dated 31 January 2001 from the
President of the Security Council Addressed to the Secretary-General,
[29] Secretary General letter to Security Council 12 January 2001, supra note 27, at para. 2. The Secretary General goes on to discuss other matters related to prosecution of juveniles including the suggestion of an amended version of article 7 which retains the principle of juvenile prosecution but which omits the potential for prosecution of children below the age of 15.
[30] ICTY
Statute, Article 5.
[31] ICTR
Statute, Article 3.
[32] ICC
Statute, Article 7. See also United Nations Transitional
Administration in East Timor (UNTAET) Regulation No. 2000/15, Section 5.
[33] Prosecutor v. Akayesu, ICTR-96-4-A,
Judgement, Appeals Chamber, 1 June 2001, [“Akayesu
Appeals Chamber Judgement”] paras.460 - 469; Prosecutor v. Tadic, ICTY IT-94-1-A, Judgement, Appeals Chamber, 15
July 1999, [“Tadic Appeals Chamber
Judgement”] paras.248, 251; Prosecutor v. Brdjanin, ICTY IT-99-36-T,
Judgement, 1 September 2004, [“Brdjanin
Trial Chamber Judgement”] para.130; Prosecutor v. Kunarac, Kovac & Vikovic,
ICTY IT-96-23-A, Judgement, Appeals Chamber, 15 June 2002, [“Kunarac Appeals Chamber Judgement”]
paras. 85-100, 102-104, 336.
[34]
Norman Judgement of Acquittal, supra
note 16, para. 55.
[35] Tadic Appeals Chamber Judgement, supra note 33, para. 251.
[36]
Article 49(1) of the Additional Protocol I defines “attacks” within the
military context as “acts of violence
against the adversary, whether in offence or defence.”
[37] Kunarac Appeals Chamber Judgement, supra note 33, paras. 16-20.
[38] Akayesu Appeals Chamber Judgement, supra note 33, para. 581.
[39] Prosecutor v. Tadic, ICTY IT-94-1-T,
Trial Chamber Judgement,
[40] Kunarac Appeals Chamber Judgement, supra note 33, para.96-7.
[41] Tadic Trial Chamber Judgement, supra note 39, para.649.
[42] Prosecutor v. Akayesu, ICTR-96-4-T,
Trial Chamber Judgement,
[43] Akayesu Appeals Chamber Judgement, supra note 33, para. 582; Tadic
Appeals Chamber Judgement, supra
note 33, paras. 637-638.
[44] Tadic Appeals Chamber Judgement, supra note 33, paras. 644.
[45] Kunarac Appeals Chamber Judgement, supra note 33, para.91.
[46] Akayesu Trial Chamber Judgement, supra note 42, para. 579
[47] Tadic Appeals Chamber Judgement, supra note 33, paras. 632.
[48] Kunarac Appeals Chamber Judgement, supra note 33, para. 121;
Prosecutor v. Kayishema and Ruzindana, supra note 42, paras. 133-134; Tadic
Appeals Chamber Judgement, supra
note 33, para. 255.
[49] Prosecutor v. Blaskic, ICTY IT-95-14-T,
Trial Chamber Judgement,
[50] See Prosecutor v. Fofana,
SCSL-2004-14-AR72(E), Decision on Preliminary Motion on Lack of Jurisdiction
Materiae: Nature of Armed Conflict, Appeals Chamber, 25 May 2004, [“Fofana Appeals Chamber Decision on Lack
of Jurisdiction Materiae; Nature of Armed Conflict”], at para. 25.
[51] See Prosecutor v. Tadic, ICTY IT-94-1-AR72,
Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction,
[52] Kunarac Appeals Chamber Judgement, supra note 33, at para. 58.
[53] See Strugar Decision on Motion for Judgement
of Acquittal, supra note 12, at para. 24; Bagasora
Decision on Motion for Judgement of Acquittal, supra note 8, at para. 36.
[54] See Bagasora Decision on Motion for
Judgement of Acquittal, supra note 8, at para. 36; Kunarac
Appeals Chamber Judgement, supra note
33, para. 59.
[55] See Bagasora Decision on Motion for
Judgement of Acquittal, supra note 8, para. 36; Prosecutor
v. Ntagerura et al., ICTR 99-46-T, Judgement, 25 February 2004, para. 766; Prosecutor v. Semanza, ICTR 97-20-T,
Judgement,
[56]
Common Article 3.1. of the Geneva Conventions; See Norman Judgement of
Acquittal, supra note 16, para. 70.
[57] See
Joint Legal Part, supra note 22, paras. 49-51, Response, supra note 14, para. 79.
[58]
Norman Judgement of Acquittal, supra
note 16, para. 112.
[59]
Joint Legal Part, supra note 22, para. 51.
[60]
Response, supra note 14, paras. 79-84.
[61] Prosecutor
v. Alex Tamba Brima et al., SCSL-04-16-T, Brima Reply to Prosecution
Response to Defence Motions For Judgement of Acquittal, 30 January 2006 [“Brima
Reply”], para. 1.
[62] Prosecutor
v. Alex Tamba Brima et al., SCSL-04-16-T, Kamara Reply to
Prosecution Response to Defence Motions For Judgement of Acquittal, 30 January
2006, [“Kamara Reply”], para. 1.
[63]
Witness TF1-334, Transcript
[64] The
following references to the evidence are by no means exhaustive: Witness
TF1-023, Transcript 10 March 2005, pp. 36-37; Witness TF1-122, Transcript 24
June 2005, pp. 32-33; Witness TF1-033, Transcript 11 July 2005, pp. 60-62;
Witness TF1-094, Transcript 13 July 2005, pp. 40-41; Witness TF1-167,
Transcript 15 September 2005, pp.53-54; Witness TF1-167, Transcript 16
September 2005, pp. 42-44, pp. 53-54, pp. 64-65; Witness TF1-334, Transcript 17
May 2005, Transcript 23 May 2005, Transcript 14 June 2005, Transcript 15 June
2005.
[65] See
Norman Judgement of Acquittal, supra
note 16, para. 118; Joint Legal Part, supra note 22, para. 53; Response,
supra note 14, para. 85.
[66] See
Joint Legal Part, supra note 22, para. 54.
[67] Kanu Motion supra note
13, paras. 4-6.
[68] Response, supra note 14, para. 86.
[69] Ibid., para. 87.
[70]
Response, supra note 14, para. 268.
[71]
Response, supra note 14, paras. 266-269.
[72] The
following references to the evidence are by no means exhaustive: Witness
TF1-023, Transcript 9 March 2005, p. 37; Witness TF1-098, Transcript 5 April
2005, pp. 39-41; Witness TF1-278, Transcript 6 April 2005, p. 9; Witness
TF1-084, Transcript 6 April 2005, p. 39; Witness TF1-227, Transcript 8 April
2005, pp. 102-103; Witness TF1-021, Transcript 15 April 2005, p. 28; Witness
TF1-334, Transcript 20 May 2005, pp. 12-13, Transcript 23 May 2005, p. 68-69,
Transcript 14 June, pp. 66-67, p. 84, p. 97; Witness TF1-122, Transcript 24
June 2005, p. 33; Witness TF1-157, Transcript 25 July 2005, p. 5, Transcript 26
September 2005 p. 9; Witness TF1-167, Transcript 15 September 2005, pp.43,
53-54.
[73] Indictment supra note 2, para. 43.
[74] Ibid., para. 44.
[75] Ibid., paras. 45-46.
[76] Ibid., para. 47.
[77] Ibid., para. 48.
[78] Ibid., para. 49.
[79] Ibid., para. 50.
[80] Akayesu Trial Chamber Judgement, supra note 42, paras. 590-592; Kayishema
& Ruzindana Judgement, supra note
42 paras. 137-147; Prosecutor
v. Rutaganda, ICTR-96-3-T, Trial Chamber Judgement,
[81] Kayishema & Ruzindana Judgement, supra note 42, para. 147.
[82] Krstic Judgement, supra, note 80, para. 500.
[83] Akayesu Trial Chamber Judgement, supra note 42, paras. 589-590; Kayishema
& Ruzindana Judgement, supra note
42, para. 140; Rutaganda
Judgement, supra note 80, paras. 79-81; Krstic
Judgement, supra, note 80, paras. 484-485.
[84]
Article 3 Common of the
[85] Tadic Appeals Chamber Judgement, supra note 33, para. 166; Prosecutor
v. Aleksovski, ICTY IT-95-14/1-A, Appeals Chamber Judgement,
[86] Fofana Appeals Chamber Decision on Lack
of Jurisdiction Materiae; Nature of Armed Conflict, supra note 50, para. 25.
[87]
Article 6 (1) and (3) of the SCSL Statute.
[88]
Joint Legal Part, supra note 22, paras. 42-47.
[89] Nahimana Reasons for Oral Decision 17
September 2002 supra note 10, para. 19.
[90] Prosecutor v. Sikirica et al., ICTY IT-95-8-T,
Judgement on Defence Motions to Acquit,
[91] Joint Legal Part, paras. 42 and 43
[92] Brima Motion supra
note 13, paras. 20-25.
[93] Ibid., para. 26.
[94]
Norman Judgement of Acquittal, supra
note 16, para. 72.
[95] Brima Motion supra
note 13, para. 27.
[96] Ibid., paras. 34-35.
[97] Ibid., paras. 27-35.
[98] Ibid., paras. 36-40.
[99] Ibid., paras. 41-49.
[100] Ibid., para. 44.
[101] Ibid., paras. 50-53.
[102] Ibid., paras. 54-56.
[103] Ibid., para. 57.
[104] Ibid., para. 58.
[105] Prosecutor
v. Alex Tamba Brima et al., SCSL-04-16-T, Defence Motion for Judgement
of Acquittal of the Second Accused, Brima Bazzy Kamara, 12 December 2005
[“Kamara Motion”], paras. 50-51.
[106] Ibid, paras. 20.1-20.3.
[107] Ibid, paras. 20.4-20.6.
[108] Ibid, paras. 20.7-20.9.
[109] Ibid, paras. 20.10-20.12.
[110] Ibid, paras. 20.13-20.15.
[111] Ibid, paras. 20.16-20.18.
[112] Ibid, paras. 20.19-20.21.
[113] Ibid, paras. 20.22-20.24.
[114] Kanu Motion supra note
13, paras. 1-4.
[115] Ibid, paras. 7-11.
[116] Ibid, paras. 12-30.
[117] Ibid, paras. 12-13.
[118] Ibid., paras. 14-15.
[119] Ibid., paras. 16-19.
[120] Ibid., paras. 20-21.
[121] Ibid., paras. 22-23.
[122] Ibid., paras. 24-25.
[123]
Response, supra note 14, paras. 73-78.
[124] Ibid., paras. 88-90, 270.
[125] Ibid., para. 91.
[126] Ibid., para. 118.
[127] Ibid., paras. 127, 134, 138, 140, 278.
[128] Ibid., para. 121.
[129] Ibid., paras. 119-125, 200-203, 271-275.
[130] Ibid., paras. 126-129, 204-206, 276-279.
[131] Ibid., paras. 130-136, 207-210, 280-284.
[132] Ibid., paras. 137-141, 211-214, 285-287.
[133] Ibid., paras. 142-144, 215-216, 288.
[134] Ibid., paras. 145, 217-222, 289-291.
[135]
Joint Defence Reply, supra note 13, paras. 8-9.
[136]
Brima Reply, supra note 61, paras. 2-10.
[137] Kamara Reply, supra
note 62, paras. 2-4.
[138] Kanu Reply supra note
13, paras. 2-5.
[139] Ibid., paras. 6, 26.
[140] Ibid., paras. 22-26.
[141] The
evidence referred to in this paragraph is by no means exhaustive of all the
evidence available on the record. See also Prosecution Exhibit 57.
[142]
Witness TF1-004, Transcript
[143]
Witnesses TF1-053, Transcript
[144]
Witness TF1-320, Transcript
[145]
Witness TF1-334, Transcript
[146]
Witness TF1-023, Transcript
[147]
Witness TF1-277, Transcript
[148]
Witness TF1-256, Transcript
[149]
Witness TF1-334, Transcript
[150]
Witness TF1-334, Transcript
[151]
Witness TF1-256, Transcript
[152] Witness TF1-033, Transcript
[153]
Witnesses TF1-024, Transcript 7 March 2005, p. 46; Witness TF1-021, Transcript
15 April 2005, pp. 25-28; Witness TF1-334, Transcript 14 June 2005, pp. 43-45,
pp. 72-73, pp. 84-89, pp. 96-97; Witness TF1-084, Transcript 6 April 2005, pp.
40- 44; Witness TF1-104, Transcript 30
June 2005, pp. 25-29.
[154]
Witnesses TF1-083, Transcript 8 April 2005, pp. 69-70; Witness TF1-021,
Transcript 15 April 2005, pp. 25-28, pp. 29-33, p. 45; Witness TF1-334,
Transcript 14 June 2005, pp. 83-89; Witness TF1-227, Transcript 8 April 2005,
p. 95.
[155] Witness TF1-227, Transcript
[156]
Witness TF1-334, Transcript
[157] Witness TF1-334, Transcript 20 May 2005, pp.22-23.
[158]
Witness TF1-334, Transcript
[159]
Witness TF1-216, Transcript
[160]
Witness TF1-217, Transcript
[161]
Witness TF1-334, Transcript 20 May 2005, pp. 11-15; Witness TF1-216, Transcript
27 June 2005, pp. 91-93; TF1-033, Transcript 11 July 2005, pp. 10-12; TF1-167,
Transcript 15 September 2005, pp. 44-45.
[162]
Witness TF1-217, Transcript
[163]
Witness TF1-113, Transcript
[164] Witness TF1-033, Transcript
[165]
Witness TF1-334, Transcript 23 May 2005, pp 65-69; Witness TF1-055, Transcript
12 July 2005, pp. 132-138, pp. 142; Witness TF1-058, Transcript 14 July 2005,
pp. 76-85; Witness TF1-033, Transcript 12 July 2005, pp. 80-84; Witness
TF1-167, Transcript 15 September 2005, pp. 54-58.
[166]
Witness TF1-033, Transcript
[167]
Witness TF1-033, Transcript
[168] See
confidential Exhibit P.15.
[169]
Witness TF1-157, Transcript
[170]
Witness TF1-122, Transcript
[171]
Witness TF1-062, Transcript
[172]
Witness TF1-113, Transcript
[173]
Witnesses TF1-098, 5 April 2005, p 42; TF1-084, 6 April 2005, pp 40-46;
TF1-085, 7 May 2005, pp 17-25; TF1-083, 8 April 2005, pp 69-70; TF1-227, 8
April 2005, pp 95-101; TF1-021, 15 April 2005, pp 25-28; TF1-334, 14 June 2005,
pp 72-73, 83-89 and 95-97, TF1-104, 30 June 2005, pp 25-29.
[174] In
addition, Prosecution Exhibits P.46, P.58 and P.66 contain documentary evidence
of mass killings of civilians in the Freetown
and Western Area.
[175] The
evidence referred to in this paragraph is by no means exhaustive of all the
evidence available on the record.
[176]
WitnessTF1-053 , Transcript
[177]
Witness TF1-004, Transcript
[178]
Witness TF1-122, Transcript
[179]
Witness TF1-062, Transcript
[180]
Witness TF1-334, Transcript
[181]
Witness TF1-216, Transcript
[182]
Witness TF1-019, Transcript
[183]
Witness TF1-072, Transcript
[184] Witness TF1-217, Transcript
[185]
Witness TF1-167, Transcript
[186]
Witness TF1-217, Transcript
[187]
Witness TF1-113, Transcript
[188]
Witness TF1-310, Transcript
[189]
Witness TF1-209, Transcript
[190]
Witness TF1-167, Transcript
[191]
Witness TF1-094, Transcript
[192]
Witness TF1-334, Transcript
[193]
Witness TF1-180, Transcript
[194]
Witness TF1-055, Transcript
[195]
Witness TF1-157, Transcript
[196]
Witness TF1-157, Transcript
[197]
Witness TF1-158, Transcript
[198]
Witness TF1-267, Transcript
[199]
Witness TF1-179, Transcript
[200]
Witness TF1-156, Transcript
[201]
Witness TF1-156, Transcript
[202]
Witness TF1-167, Transcript
[203] In
addition, Prosecution 54 contains documentary evidence of unlawful killings of
civilians around the villages of Karina, Makeni and Kamalu in Bombali District.
[204] The
evidence referred to in this paragraph is by no means exhaustive of all the
evidence available on the record.
[205]
Witness TF1-334, Transcript
[206]
Witness TF1-122, Transcript
[207]
Witness TF1-062, Transcript
[208]
Witness TF1-334, Transcript
[209]
Witness TF1-334, Transcript
[210] Witness TF1-217, Transcript
[211]
Witness TF1-167, Transcript
[212]
Witness TF1-184, Transcript 27 September 2005, pp.17-18.
[213]
Witness TF1-217, Transcript
[214]
Witness TF1-334, Transcript
[215]
Witness TF1-334, Transcript
[216] Witness
TF1-334, Transcript
[217] Witness TF1-033, Transcript
[218]
Witness TF1-024, Transcript 7 March 2005, pp. 47-48; Witness TF1-098,
Transcript 5 April 2005, pp. 41-43; Witness TF1-085, Transcript 7 April 2005,
pp. 19-20, pp. 22-24; Witness TF1-083, Transcript 8 April 2005, pp. 49, pp.
67-68; TF1-227, Transcript 11 April 2005, pp. 13-15; Witness TF1-334,
Transcript 14 June 2005, pp. 22-24, pp. 43-45, pp. 64-65, pp. 97-98; Witness
TF1-104, Transcript 30 June 2005, pp. 23-24; Witness TF1-169, Transcript 7 July
2005, pp. 22-24 and 60-64; Witness TF1-033, Transcript 11 July 2005, pp. 63-64;
Witness TF1-167, Transcript 16 September 2005, pp. 43-44, pp. 47-48; Witness
TF1-153, Transcript 22 September 2005, p. 100; Witness TF1-153, Transcript 23
September 2005, pp. 21-24.
[219]
Witness TF1-277, Transcript
[220] In
addition, Prosecution Exhibits 46 and 66 contain documentary evidence of
unlawful killings of non-combatants in the Freetown
and Western Area.
[221] Kunarac Appeals Chamber Judgement, supra note 33, para. 127.
[222] Ibid., paras.129-130.
[223]
Article 7(1) (g)-2 of the Elements of Crimes adopted by the Preparatory
Commission for the International Criminal Court cited in Joint Legal Part, supra note 22, para 69.
[224]
Article 7(1) (g)-6 of the Elements of Crimes adopted by the Preparatory
Commission for the International Criminal Court.
[225] Prosecutor v. Kvocka, ICTY IT-98-30/1-T,
Trial Chamber Judgement, at para.180.
[226] Ibid., at footnote 343.
[227] See
paras. 173-174.
[228] Prosecutor v. Kunarac et al., ICTY IT-96-23-T
& IT-96-23/1-T, Judgement, [“Kunarac Judgement”],
para. 514.
[229] Kunarac Appeals Chamber Judgement, supra note 33, para. 165.
[230] Supra
paras. 67, 71 and 73.
[231] Brima Motion supra
note 13, para 61
[232] Ibid., para 62-63
[233] Brima Motion supra
note 13, para 65.
[234] Ibid., para 68.
[235] Kamara Motion, supra
note 105, para 30.3.
[236] Ibid., para 30.12.
[237] Ibid., 30.15.
[238] Ibid., para 30.18.
[239] Kanu Motion, supra
note 13, paras. 31,34,
36 and 59.
[240] Ibid., paras 38 and 49
[241] Ibid., para 59
[242] Ibid., para 49
[243] Ibid., para 50
[244] Kanu Motion supra note
13, para. 33,
35, 37 40- 46, 52 -54,61.
[245]
Response, supra note 14, para. 96
[246] Ibid., para. 98.
[247] Ibid., para. 99.
[248] Ibid.,
para 146.
[249] Ibid., para. 150.
[250] Ibid., para. 151.
[251] Ibid., para 160.
[252] Ibid., para 161.
[253] Ibid., para.225.
[254] Ibid., paras. 227, 229.
[255] Ibid., paras 231 and 232.
[256] Ibid., para. 234.
[257] Ibid., para. 238.
[258] Ibid., para 240.
[259] Ibid., para
297.
[260] Ibid., para
302.
[261] Ibid.,
para. 303.
[262] Ibid., para. 307.
[263] Ibid., paras. 311, 312.
[264] Ibid., paras. 314, 315.
[265] Ibid., para. 317-320.
[266] Ibid., para.323.
[267] Ibid., para.327.
[268] Ibid., para. 293 and 300.
[269] Ibid.,
para. 332.
[270]
Brima Reply, supra note 61, para. 11.
[271] Ibid., paras 11 and 12.
[272] Ibid., para. 13.
[273]
Kamara Reply, supra note 62, para. 5.
[274] Ibid., para. 6.
[275] Kanu
Reply supra note 13, para. 27.
[276] Ibid., para. 28.
[277] Ibid., para 29.
[278] Ibid., para. 30.
[279] The evidence referred to in this paragraph is by no means exhaustive of all the evidence available on the record.
[280]
Witness TF1-334, Transcript 20 May 2005, p. 7; Witness TF1-076, Transcript 27
June 2005, pp. 105-106, Witness TF1-198, Transcript 28 June 2005, p. 12;
Witness TF1-206, Transcript 28 June 2005, p. 96; Witness TF1-019, Transcript 30
June 2005, pp. 81-82, pp. 90-91; Witness TF1-033, Transcripts 11 July 2005,
p.14; Witness TF1-114, Transcripts 14 July 2005, p. 131; Witness TF1-217,
Transcripts 17 October 2005, p. 5, pp. 22-23, pp. 30-31.
[281]
Witness TF1-209, Transcript 7 July 2005, pp. 31-23; Witness TF1-133, Transcript
7 July 2005, pp. 91-92, p. 98; Witness TF1-094, Transcript 13 July 2005, p.29;
Witness TF1-153, Transcript 22 September 2005, p. 33; Witness TF1-199,
Transcript 6 October 2005, p. 89.
[282]
Witness TF1-334, Transcript 23 May 2005, p. 71; Witness TF1-033, Transcript 11
July 2005, p. 19; Witness TF1-269, Transcript 14 July 2005, p. 44; Witness
TF1-267, Transcript 27 July 2005, p. 6.
[283]
Witness TF1-114, Transcript
[284]
Witness TF1-024, Transcript 7 March 2005, pp. 49-50; Witness TF1-023,
Transcript 9 March 2005, p.51; Witness TF1-085, Transcript 7 April 2005, pp.
18-19; Witness TF1-083, Transcript 8 April 2005, p. 52; Witness TF1-227,
Transcript 11 April 2005, p. 13; Witness TF1-334, Transcript 14 June 2005, pp.
25-26; Witness TF1-169, Transcript 6 July 2005, p. 60; Witness TF1-153,
Transcript 23 September 2005, pp. 9-10.
[285]
Witness TF1-085, Transcript
[286]
Prosecution Exhibit 25; Prosecution Exhibit 26; Prosecution Exhibit 52;
Prosecution Exhibit 53, Prosecution Exhibit 58; Prosecution Exhibit 67,
Prosecution Exhibit 66; Prosecution Exhibit 51; Prosecution Exhibit 46;
Prosecution Exhibit 66.
[287] The evidence referred to in this paragraph is by no means exhaustive of all the evidence available on the record.
[288]
Witness TF1-334, Transcript 20 May 2005, p. 5, p. 7; Witness TF1-033,
Transcript 11 July 2005, p. 14; Witness TF1-217, Transcript 17 October 2005,
p.5, pp. 22-23, p. 25 p. 30-31; Witness TF1-114, Transcript 14 July 2005, p.
131.
[289]
Witness TF1- 209, Transcript
[290]
Witness TF1-334, Transcript
[291]
Witness TF1-045, Transcript
[292]
Witness TF1-023, Transcript
[293]
Witness TF1-085, Transcript 7 April 2005, p. 41; Witness TF1-083, Transcript 8
April 2005, p. 63; Witness TF1-282, Transcript 13 April 2005, pp. 17-18;
Witness TF1-256, Transcript 14 April 2005, p. 98.
[294]
Prosecution Exhibit 25; Prosecution Exhibit 26; Prosecution Exhibit 52;
Prosecution Exhibit 53; Prosecution Exhibit 58; Prosecution Exhibit 67;
Prosecution Exhibit 66; Prosecution Exhibit 51; Prosecution Exhibit 32.
[295] The evidence referred to in this paragraph is by no means exhaustive of all the evidence available on the record.
[296]
Witness TF1-334, Transcript 20 May 2005, pp. 5,7; Witness TF1-033, Transcript
11 July 2005, p. 14; Witness TF1-217, Transcript 17 October 2005, pp. 5, 11,
22-23, 25, 30-31; Witness TF1-114, Transcript 14 July 2005, p. 131.
[297]
Witness TF1-209, Transcript 7 July 2005, pp. 37-9; Witness TF1-133, Transcript 7 July 2005, pp.
89-92, 97-101, 105-108; TF1-094, Transcript 13 July 2005, pp. 29-30.
[298]
Witness TF1-334, Transcript
[299]
Witness TF1-114, Transcript
[300]
Witness TF1-023, Transcript 9 March 2005, pp. 44-47, 51; Witness TF1-085,
Transcript 7 April 2005, pp. 21, 27-28; Witness TF1-334, Transcript 14 June
2005, p 120-121, Transcript 15 June 2005, pp. 2-7, 14-16; Witness TF1-081,
Transcript 4 July 2005, p. 11.
[301]
Witness TF1-085, Transcript 7 April 2005, pp. 33, 35-38, 41; Witness TF1-083,
Transcript 8 April 2005, p. 63; Witness TF1-282, Transcript 13 April 2005, pp.
17-18; Witness TF1-256, Transcript 14
April 2005, p. 98.
[302]
Prosecution Exhibit 25; Prosecution Exhibit 26; Prosecution Exhibit 52;
Prosecution Exhibit 53; Prosecution Exhibit 58; Prosecution Exhibit 67;
Prosecution Exhibit 66; Prosecution Exhibit 51; Prosecution Exhibit 46,
Prosecution Exhibit 32.
[303]
Prosecution Exhibit 25; Prosecution Exhibit 26; Prosecution Exhibit 52;
Prosecution Exhibit 53; Prosecution Exhibit 58; Prosecution Exhibit 67; Prosecution
Exhibit 66; Prosecution Exhibit 51; Prosecution Exhibit 28, Prosecution Exhibit
32.
[304] Prosecutor v. Norman et al., SCSL-04-14PT, Reasoned Majority Decision on
Prosecution Motion for a Ruling on the Admissibility of Evidence, 24 May 2005,
para.19(iii).
[305] The evidence referred to in this paragraph is by no means exhaustive of all the evidence available on the record.
[306]
Witness TFI-334, Transcript
[307]
Witness TF1-209, Transcript 7 July 2005, p. 36; TF1-133, 7
July 2005, p. 82, 83; Witness TF1-094, Transcript 13 July 2005, p. 8; Witness
Zainab Bangura, Transcript 3 October 2005; Witness Zainab Bangura, Transcript 4
October 2005.
[308] Witness
TF1-334, Transcript
[309]
Witness TF1-045, Transcript
[310]
Witness TF1-023, Transcript
[311]
Witness TF1-083, Transcript
[312]
Prosecution Exhibit 52; Prosecution Exhibit 53; Prosecution Exhibit 58;
Prosecution Exhibit 46; Prosecution Exhibit 28.
[313]
Indictment supra note 2, para.59.
[314] Ibid., para.60.
[315] Ibid., para.61.
[316] Ibid., para.62.
[317] Ibid., para.63.
[318] Ibid., para.64.
[319] Blaskic Judgement, supra note 49, para.239-244; Kayishema
& Ruzindana Judgement, supra note
42, para.149.
[320] Tadic Trial Chamber Judgement, supra note 39, paras. 728-729.
[321] Prosecutor v. Kordic and Cerkez, ICTY
IT-95-14/2-T, Judgement, 26 February 2001, [“Kordic Judgement”], paras.269-272; Tadic Trial Chamber Judgement, supra
note 39, paras.729-730;
Prosecutor v. Zoran Kupreskic et al, ICTY IT-95-16-T, Judgement, 14 January
2000, [“Kupreskic Judgement”]
para.566; Kayishema & Ruzindana
Judgement, supra note 42, paras.149-154; Norman
Judgement of Acquittal, supra note 16, para.93.
[322] Kupreskic Judgement, ibid., para. 566.
[323] Norman Judgement of Acquittal, supra note 16, para. 93.
[324]
Article 6(1) and (3) of the SCSL Statute.
[325] Brima Motion supra
note 13, paras.69-75.
[326] Kamara Motion, supra
note 105, paras.36-37.
[327] Kanu Motion supra note
13, para.73.
[328] Ibid, paras.62-63 and 74.
[329] Ibid, paras.64-66.
[330] Ibid, paras.67-68.
[331] Ibid. paras.69-70.
[332] Ibid. paras.71-72.
[333]
Response, supra note 14, para.100.
[334] Ibid., paras. 25-55, 76-78 and 101.
[335] Ibid., paras. 25-55,163-167, 244-246 and
334-335.
[336] Ibid., paras.25-55, 169, 247-249 and 336-341.
[337] Ibid., paras.25-55, 170, 250-252 and
342-344.
[338] Ibid., paras.25-55, 143-145, 170,
253-254 and 345.
[339] Ibid., paras.25-55, 170, 255-256 and
346-349.
[340]
Brima Reply, supra note 61, paras.14-15.
[341]
Kamara Reply, supra note 62, para.7.
[342] Kanu
Reply supra note 13, para. 30.
[343] The
evidence referred to in this paragraph is by no means exhaustive of all the
evidence available on the record. In addition the evidence of Witness TF1-272
given on 4 July 2005 refers to a large number of civilian victims of
amputations, failed amputations, broken limbs, dismembering of ears, lips and
fingers, suffered as a result of a widespread attack on the civilian population
in the Districts of Kono, Kenema,
Kailahun, Koinadugu, Bombali, Port Loko as well as Freetown and the Western Area.
See also Prosecution Exhibits SCSL/ERN/P26; SCSL/ERN/P54, SCSL/ERN/P57 and SCSL/ERN/P58.
[344]
Witness TF1-334, 20 May 2005, pp 6-7, 11-15, 17-18; TF1-216, 27 June 2005, pp
92-95; TF1-072 1 July 2005, pp 15, 19; TF1-076, 27 June 2005, p 103; TF1-206,
28 June 2005, pp 98-104, 107-109.
[345]
Witnesses TF1-198,
[346]
Witness TF1-206,
[347]
Witness TF1-033,
[348]
Witness TF1-217,
[349]
Witness TF1-217,
[350] In
addition, Prosecution Exhibits P26 and P51 contain documentary evidence of
amputations committed on civilians in the villages of Njamaia, Sewafe, Koidu,
Yifin, Alikalia , Bakedou, Ngandahun, Waimayma, Tombodu and Saiama in Kono
District.
[351]
Witnesses TF1-199,
[352] In
addition, Prosecution Exhibit P51 contain documentary evidence of amputations
committed on civilians in the villages of Gbenekoro and Serekolia in Koinadugu District.
[353]
Witnesses TF1-334, 23 May 2005, pp 69-71; TF1-058, 14 July 2005, pp 75, 81-86;
TF1-058, 14 July 2005, pp 73-75, 92-94; TF1-157, 22 July 2005, p 75; TF1-199, 6
October 2005, pp 75-76.
[354]
Witnesses TF1-334,
[355]
Witness TF1-334,
[356]
Witness TF1-269,
[357]
Witness TF1-058,
[358]
Witness TF1-157,
[359]
Witness TF1-157,
[360]
Witness TF1-157,
[361]
Witness TF1-179,
[362]
Witness TF1-167,
[363]
Witness TF1-156,
[364]
Witness TF1-156,
[365]
Witness TF1-199,
[366] In
addition, Prosecution Exhibit P54 contains documentary evidence of amputations
carried out on civilians around the villages of Karina, Fadugu and Makeni in Bombali District.
[367]
Witness TF1-085,
[368]
Witness TF1-320,
[369]
Witness TF1-227,
[370]
Witness TF1-227,
[371] See
also the evidence of Witness TF1-167,
[372]
Witness TF1-023,
[373]
Witnesses TF1-098,
[374]
Witness TF1-098,
[375]
Witness TF1-278,
[376]
Witnesses TF1-084, 6 April 2005, pp 43-44; TF1-085, 7 April 2005, pp 7, 17, 25;
TF1-083, 8 April 2005, pp 64-65, 66-67; TF1-227, 8 April 2005, pp 101-103;
TF1-334, 14 June 2005, pp 68-71, 81-82, 83-87; TF1-104, 30 June 2005, pp 9-11.
[377] In
addition Prosecution Exhibits P46 and P66 contain documentary evidence of
amputations committed on civilians in the Freetown
and Western Area.
[378] The
evidence referred to in this paragraph is by no means exhaustive of all the
evidence available on the record. In addition the evidence of Witness TF1-272
given on 4 July 2005 refers to a large number of civilian victims of
amputations, failed amputations, broken limbs, dismembering of ears, lips and
fingers, suffered as a result of a widespread attack on the civilian population
in the Districts of Kono, Kenema,
Kailahun, Koinadugu, Bombali as well as Freetown
and the Western Area. See also
Prosecution Exhibits P26 and P54.
[379]
Witness TF1-334, Transcript
[380]
Witness TF1-206, Transcript
[381]
Witness TF1-076, Transcript
[382]
Witness TF1-074, Transcript
[383]
Witness TF1-217, Transcript
[384]
Witness TF1-122, Transcript
[385]
Witness TF1-269, Transcript Transcript
[386]
Witness TF1-133, Transcript
[387]
Witness TF1-085, Transcript
[388]
Witness TF1-104,
[389] See Norman Judgement of Acquittal, supra note 16, para. 124.
[390] Brima Motion, supra
note 13, para. 76-82.
[391]
Kamara Motion, supra note 105 para.
41.
[392] Kanu Motion supra note
13, para 76.
[393]
Prosecution Response, para. 177.
[394] Ibid.
[395] Ibid., para. 351.
[396] Ibid., para. 352.
[397]
Brima Reply, supra note 61, para. 16.
[398]
Kamara Reply, supra note 62, para. 8.
[399] Witness TF1-024, Transcripts, 7 March 2005, p. 77; Witness TF1-023,
Transcript 9 March 2005, p. 35; Witness TF1-085, Transcript 7 April 2005, p.
49; Witness TF1-227, Transcript 11 April 2005, pp. 20, 21, p. 75; Witness
TF1-282, Transcript 14 April 2005, p. 30; Witness TF1-334, Transcript 20 May
2005, p. 6; Witness TF1-334, 23 May 2005, p. 74; Witness TF1-334, 24 May 2005,
Transcript pp. 17, 18, pp. 23, 24; Witness TF1-334, 14 June 2005, p. 122;
Witness TF1-334, 15 June 2005, pp. 14, 16, 17; Witness TF1-334, Transcript 27
June 2005, p. 34; Witness TF1-206, Transcript 28 June 2005, p. 91; Witness
TF1-133, Transcript 7 July 2005, pp. 95, 96, pp. 111, 112; Witness TF1-180,
Transcript 8 July 2005, pp. 9, 10, 11, 12, pp. 15, 16; Witness TF1-094, Transcript
13 July 2005, pp. 32, 33; Witness TF1-158, Transcript 26 July 2005, pp. 39, 40,
41, pp. 44, 45, 46; Witness TF1-167, Transcript 15 September 2005, p. 64, 65,
66, 67;Witness TF1-199, Transcript 6 October 2005, p. 74, pp. 83, 84, 85, 86,
pp. 89, 90, 91, 92, pp. 98, 99; Prosecution Exhibit No. P 33; Prosecution
Exhibit No. P 52; Prosecution Exhibit No. P 66; Prosecution Exhibit No. P 36;
Prosecution Exhibit No. P 46; Prosecution Exhibit No. P 54; Prosecution Exhibit
No. P 55; Prosecution Exhibit No. P 68; Prosecution Exhibit No. P.62, p. 16496.
[400] Kunarac Judgement, supra note 228, para. 540.
[401] Ibid.
[402] Ibid., para. 542.
[403] Kunarac Appeals Chamber Judgement, supra note 33, at para. 120.
[404] Prosecutor v. Krnojelav, ICTY IT-97-25,
Judgement,
[405] Ibid., para. 357.
[406] Ibid., para. 358.
[407]
Rodney Dixon and Karim Khan, Archbold
International Criminal Courts Practice Procedure & Evidence (
[408] Kunarac Appeals Chamber Judgement, supra note 33, para 19.
[409] Joint Legal Part, supra note
22, para. 81.
[410] Brima Motion supra
note 13, paras. 83-85.
[411] Kamara Motion, supra
note 105, paras. 43-47.
[412] Kanu Motion supra note
13, para. 77-90.
[413]
Response, supra note 14, para. 106.
[414] See ibid., paras. 179-182.
[415] Ibid., paras. 259-261.
[416] Ibid., paras. 368-370.
[417] Ibid., paras. 371-373.
[418] See ibid., paras. 355-375.
[419]
Joint Defence Reply, supra note 13, para.19.
[420]
Brima Reply, supra note 61, para.17; Count 13 of the Indictment supra note 2, para. 67, alleges that: “Between about
[421]
Kamara Reply, supra note 62, para. 8.
[422] Kanu
Reply supra note 13, paras.31, 32; The Indictment supra note 2, under Count 13, para. 73, alleges that “AFRC/RUF
forces also abducted and used as forced labour civilians from various locations
in the Port Loko District, including Tendakum and Nonkoba.”
[423] Prosecutor v. Kordic & Cerkez, ICTY
IT-95-14/2-T, Decision on Defence Motions for Judgement of Acquittal, 6 April
2000, para.28.
[424]
Witness TF1-062, Transcript
[425]
Witness TF1-062, Transcript
[426] Witness TF1-122, Transcript 24 June 2005, p. 72; Witness TF1-062, Transcript 27 June 2005, pp. 23, 24, 26, 27, 30, 31; Witness TF1-045, Transcript 19 July 2005, pp. 48, 55.
[427]
Witness TF1-045, Transcript
[428] Witness TF1-217, Transcript
[429]
Witness TF1-256, Transcript 14 April 2005, pp.49-57, 68-70.
[430] Witness TF1-282, Transcript
[431]
Response, supra note 14, para. 359.
[432] Ibid., para. 362.
[433] Ibid., para. 368.
[434]
Witness TF1-062, Transcript 27 June 2005, pp.23,24,32,33; Witness TF1-045,
Transcript 19 July 2005, pp.48-52,55.
[435]
Witness TF1-334, Transcript 20 May 2005, p. 4; Witness TF1-216, Transcript 27
June 2005, pp. 90,97; Witness TF1-198, Transcript 28 June 2005, pp.6,13;
TF1-206, 28 June 2005, pp. 90; Witness
TF1-072, Transcript 1 July 2005, pp.9,10; Witness TF1-074, 5 July 2005,
pp.12,13,29,30, 52,54, 55, 56,-57, Witness TF1-033, Transcript 11 July 2005,
pp.9,10,12,13; Witness TF1-085, Transcript 7 April 2005, p.50, Transcript 20
May 2005 pp. 4,5.
[436]
Witness TF1-334, Transcript 23 May 2005, p.17, Witness TF1-209, 7 July 2005, pp
36,37,77; Witness TF1-133, Transcript 7 July 2005, pp. 82, 83, 84, 85, 96, 97,
102, 105, 106, 107, 109, 111; Witness TF1-094, Transcript 13 July 2005, pp. 28,
29, 32, 33, Witness TF1-167,Transcript 15 September 2005, pp. 58, 59, 64, 65,
66; Witness TF1-199, Transcript 6 October 2005, p.90; Witness TF1-153,
Transcript 22 September 2005, pp. 47, 48, 49, 50, 51.
[437]
Witness TF1-334, Transcript 23 May 2005, pp. 72,73, 84; Transcript 24 May 2005,
pp. 23, 24, 25, 26, 27, 28, 29, 30, 31; Witness TF1-180, Transcript 8 July
2005, pp.7,8; Witness TF1-058, Transcript 14 July 2005, pp. 64, 65, 66, 87;
Witness TF1-157, Transcript 22 July 2005, pp.62, 63, 64, 65, 66, 67, 70, 71,
72, 76, 77, 78, 86, 104, 106, 107, 108, Transcript 25 July 2005, pp. 3, 4, 5,
9, 10, 16, Transcript 26 September2005, pp.6,7,8,9,22; Witness TF1-158,
Transcript 25 July 2005, pp. 3, 4, 5, 9, 10, 16; Transcript 26 July 2005 pp.
32, 33, 35, 36, 38, 39, 41, 42, 43; Witness TF1-167, Transcript 15 September
2005 pp. 58, 59, 61, 63, 64, 65; Witness TF1-156, Transcript 26 September 2005,
p.45; Witness TF1-180, Transcript 8 July 2005 pp. 7, 8, 9; Witness TF1-055,
Transcript 12 July 2005 pp. 136, 137; Witness TF1-199, Transcript 6 October
2005 pp. 71, 73, 76.
[438]
TF1-114, 14 July 2005, p.129; TF1-045, 19 July 2005, pp.85,86; Witness TF1-113,
Transcript 18 July 2005, pp. 84, 85,86.
[439]
Witness TF1-024, Transcript 7 March 2005, pp. 43, 44, 49, 50, 51; Witness
TF1-023, Transcript 9 March 2005, pp.30, 31, 32, 33, 34, 35, 37, 38; Witness
TF1-084, Transcript 6 April 2005, p.40; Witness TF1-085, Transcript 7 April
2005, pp. 11, 12, 15, 22, 35, 49; Witness TF1-227, Transcript 8 April 2005,
pp.96, 97, 98, 99, 100, Transcript 11 April 2005, pp. 5,6,9,10,11; Witness
TF1-334, Transcript 13 June 2005 pp. 97, 98; Transcript14 June 2005, pp. 25,62,
63, 64,78,79,103,104,114, 115, 116, 118, 119, 120, 121; Transcript 15 June
2005, pp. 3, 13, 14, 15; Witness TF1-104
30 June 2005 p. 17; Witness TF1-081, 4 July 2005, pp.10,11; Witness TF1-094, 13
July 2005, pp.40,41; Witness TF1-157, Transcript 25 July 2005 p. 25; Transcript
26 September 2005, pp.22, 23,24; Witness TF1-167, 15 September2005, pp. 21, 52,
53; Witness TF1-153 23 September 2005 pp. 9, 13.
[440]
Witness TF1-085, Transcript 7 April 2005, pp. 49, 50 ; Witness TF1-320,
Transcript 8 April 2005, pp. 13,18; Witness TF1-277, Transcript 11 April 2005,
pp. 25, 42, 43, 44; Witness TF1-334, Transcript 15 June 2005, pp.21,22,31;
Witness TF1-167, Transcript 16 September 2005, pp.70,72.
[441] See Norman Judgement of Acquittal, supra note 16, para. 102.
[442]
Report of the Preparatory Commission for the International Criminal Court
Addendum: Finalized Draft Text of the
Elements of Crimes, U.N. Doc. PCNICC/2000/INF/3/Add.2(2000).
[443] See Norman Judgement of Acquittal, supra note 16, para. 102; and, Prosecutor
v. Delalic et al., ICTY
IT-96-21-T, Judgement,
[444]
Joint Legal Part, supra note 22, paras. 82-88.
[445] Brima Motion supra
note 13, paras. 86-92.
[446] Kamara Motion, supra
note 105, paras. 48-52.
[447] Kanu Motion supra note
13, paras. 91-103.
[448]
Response, supra note 14, para.109, citing Prosecutor
v. Naletilic and Martinovic, ICTY IT-98-34-T, Judgement,
[449] Ibid., para. 109.
[450] Ibid., paras. 107-115.
[451] Ibid., para. 184.
[452] Ibid., paras. 183-196.
[453] Ibid., paras. 262,263.
[454] Ibid., paras. 376-390.
[455]
Brima Reply, supra note 61, para. 18.
[456]
Kamara Reply, supra note 62, para. 8.
[457] Kanu Reply supra note
13, paras. 33,
34.
[458]
Response, supra note 14, paras. 7, 184, 376, 379, 382, Annex A..
[459] Ibid., para. 184.
[460] For
example Witness TF1-167, Transcript 15 September 2005, p. 58; Witness TF1-334,
Transcript 23 May 2005, pp. 39-42; Witness TF1-334, Transcript 20 May 2005, pp.
19-22; Witness TF1-334, Transcript 23 May 2005, pp. 56-59; Witness TF1-334,
Transcript 14 June 2005, pp. 66, 67.
[461] Tadic Appeals Chamber Decision on
Interlocutory Appeal on Jurisdiction, supra
note 51, para. 87.
[462] Hadzihasanovic Decision on Motions for
Acquittal, supra note 12, para. 98.
[463] Ibid., para. 98, citing Michael Bothe,
Karl Josef Partsch, Waldemar A. Solf, New
Rules for Victims of Armed Conflicts, (The Hague/Boston/London: 1982), pp.
670, 676-677.
[464] Kupreskic Judgement, supra note 321, para. 521.
[465] The
references to the evidence in this paragraph are by no means exhaustive.
[466]
Witness TF1-054, Transcript
[467]
Witness TF1-153, Transcripts
[468]
Witness TF1-074, Transcript
[469]
Witness TF1-334, 23 May 2005, p. 72; Witness TF1-334, Transcript 14 July 2005,
p. 49; Witness TF1-269, Transcript p. 49; Witness TF1-058, Transcript 14 July
2005, p. 64, p. 88; Witness TF1-158, Transcript 22 July 2005, p. 62, p. 75, 76,
pp. 84, 85, p. 87; Witness TF1-158, Transcript 26 July 2005, pp. 32, 33;
Witness TF1-167, Transcripts 15 September 2005, p. 30; Witness TF1-199,
Transcript 6 October 2005, pp. 70, 72, 76.
[470]
Witness TF1-024, Transcript 8 March 2005, pp. 25; Witness TF1-084, Transcript 6
April 2005, p. 38; Witness TF1-085, Transcript 7 April 2005, p. 15; Witness
TF1-083, Transcript 8 April 2005, p. 59; Witness TF1-021, Transcript 15 April
2005, p. 34; Witness TF1-334, Transcript 14 June 2005, p. 24, 26; Witness
TF1-334, Transcript 13 June 2005, p. 103.
[471] Indictment, para. 35.
[472] See
paras. 6-15 above.
[473] See
para. 13 above.
[474] See Prosecutor v. Mitar Vasiljevic, ICTY IT-98-32-A, Judgement (AC),
[475] Kordic Judgement, supra note 321, para. 373.
[476] Tadic Appeals Chamber Judgement, supra note 33, para. 188.
[477] See Kunarac Judgement,
supra note 228, para. 390.
[478]
Joint Legal Part, supra note 22, para. 23, citing Prosecutor v. Tadic, ICTY IT-94-1-A,
Judgement,
[479] Prosecutor v. Blaskic, ICTY
IT-95-14-T-A, Judgement, Appeals Chamber, 29 July 2004, [“Blaskic Appeal Judgement”], para. 126.
[480] Ibid. para. 257, cited by Defence in Joint
Legal Part, supra note 22, para. 23.
[481]
Joint Legal Part, supra note 22, para. 24.
[482]
Response, supra note 14, paras. 16-18.
[483] The
references to the evidence in this paragraph are by no means exhaustive.
[484]
Witness TF1-334, Transcript 23 May 2005, p. 69; Witness TF1-334, Transcript 14
June 2005, pp. 22, 23, 26, 64 66, 67; Witness TF1-334, Transcript 15 June 2005,
pp. 2-3; Witness TF1-153, Transcript 23 September 2005, p. 21, p. 25.
[485]
Witness TF1-334, Transcript 15 May 2005 p. 3, p. 25, p. 55; Witness TF1-334,
Transcript 14 May 2005, p. 83; Witness TF1-334, Transcript 17 May 2005, p. 81;
Witness TF1-334, Transcript 14 June 2005, p. 26.
[486] Witness
TF1-277, Transcript 8 March 2005, p. 50; Witness TF1-227, Transcript 11 April
2005, p. 21; Witness TF1-282, Transcript 14 April 2005, p. 13; Witness TF1-334,
Transcript 14 June 2005, p. 67, p. 69, p.83, p. 100; Witness TF1-334,
Transcript 15 June 2005, p. 3; Witness TF1-167, Transcript 15 September 2005,
p. 56.
[487] Brdjanin Trial Chamber Judgement, supra note 33, para. 268; Prosecutor
v. Stakic, ICTY IT-97-24-T, Judgement,
[488] Prosecutor v. Kordic and
Cerkez, ICTY IT-95-14/2 A, Judgement, Appeals Chamber, 17
December 2004, [“Kordic Appeals
Judgement”], para. 26.
[489] Ibid., paras. 29, 31.
[490] Kordic Judgement, supra note 321, para. 386.
[491] Brdjanin Trial Chamber Judgement, supra note 33, para. 357
[492]
Joint Legal Part, supra note 22, para. 27.
[493]
Response, supra note 14, para. 22.
[494] Ibid., para. 23.
[495] Kanu
Reply supra note 13, para. 9.
[496] The
references to the evidence in this paragraph are by no means exhaustive.
[497]
Witness TF1-334, Transcript 23 May 2005, p. 56, 57; Witness TF1-334, Transcript
24 May 2005, p. 30, p. 46, p. 62, 63; Witness TF1-334, Transcript 25 May 2005,
39, 40; Witness TF1-334, Transcript 13 June 2005, p. 100; Witness TF1-334,
Transcript 14 June 2005, p. 47, 48, p. 53, p. 62, 63, p. 66, p. 78, p. 84;
Witness TF1-167, Transcript 16 September 2005, pp. 40, 41; Witness TF1-153,
Transcript 22 September 2005, p. 94, 95; Witness TF1-153, Transcript 23
September 2005, pp. 28, 29.
[498]
Witness TF1-334, Transcript 24 May 2005, p. 46, 47; Witness TF1-334, Transcript
14 June 2005, p. 47, p. 62, pp. 78, 79, pp. 82, 83, 84, 85, pp. 96, 97; Witness
TF1-167, Transcript 23 September 2005, p. 18.
[499]
Witness TF1-334, Transcript 23 May 2005, p. 76; Witness TF1-334, Transcript 24
May 2005, pp. 62, 63; Witness TF1-334, Transcript 14 June 2005, p. 47, p. 62,
pp. 66, 67, pp. 78, 79, pp. 82, 83, 84, 85, pp. 96, 97.
[500] Akayesu Trial Chamber Judgement, supra note 42, para. 482.
[501] Brdjanin Trial Chamber Judgement, supra note 33, para. 269.
[502] Ibid., para. 269.
[503] Kordic Appeals Judgement, supra note
488, para. 27.
[504] Ibid., para. 27.
[505] Ibid., paras.29, 32.
[506] See
Response, supra note 14, para. 22.
[507] Krstic Judgement, supra, note 80, para. 601; see also Brdjanin
Trial Chamber Judgement, supra note 33, para. 270.
[508] Kordic Appeals Judgement, supra note
488,
para. 28.
[509] Kordic Judgement, supra note 321, para. 388; Akayesu
Trial Chamber Judgement, supra note
42, para. 483.
[510] Blaskic Judgement, supra note 49, para. 281.
[511] Blaskic Judgement, supra note 49, para. 282; Kordic
Judgement,
supra note 321, para. 388.
[512] Kordic Appeals Judgement, supra note
488, para. 28.
[513] Ibid., paras. 29, 30.
[514] Blaskic Appeal Judgement, supra note 479, para. 42, cited in the Joint Legal Part, supra note 22, para. 28.
[515] Ibid., para. 41, cited in the Joint Legal Part, supra note 22, para, 28.
[516]
Joint Legal Part, supra note 22, para. 28.
[517]
Response, supra note 14, para. 22.
[518] Ibid., para. 24.
[519] The
references to the evidence in this paragraph are by no means exhaustive.
[520]
Witness TF1-024, Transcript 7 March 2005, p. 50; Witness TF1-334, Transcript 23
May 2005, p. 16, p. 42, p. 53, pp. 56, 57, 58, p. 67, p. 74, p. 79, p. 83, pp.
85, 86, pp. 92, 93, p. 104; Witness TF1-334, Transcript 24 May 2005, p. 3, pp.
9, 10; Witness TF1-334, Transcript 13 June 2005, p. 101, pp. 110, 111, p. 118;
Witness TF1-334, Transcript 14 June 2005, p. 5, p. 29, p. 32, p. 47, p. 53, p.
62, p. 66, 67, p. 78, pp. p. 83, 84, p. 97, p. 100, pp. 118, 119; Witness
TF1-334, Transcript 15 June 2005, p. 15; Witness TF1-033, Transcript 11 July
2005, p. 11, p. 12, p. 14, p. 19, p. 23, p. 25, pp. 33, 34, pp. 61, 62; Witness
TF1-158, Transcript 26 July 2005, p. 38; Witness TF1-167, Transcript 16
September 2005, pp. 16, 17, pp. 42, 43, pp. 53, 54; Witness TF1-153, Transcript
22 September 2005, pp. 76; Witness TF1-153, Transcript 23 September 2005, p.
24, p. 28.
[521]
Witness TF1-023, Transcript 10 March 2005, p. 36; Witness TF1-334, Transcript
15 June 2005, p. 11, p. 21, p. 20, 21, p. 23, p. 25, p. 28, p. 32, p. 35;
Witness TF1-334, Transcript 20 May 2005, p. 7; Witness TF1-334, Transcript 23
May 2005, p. 66; Witness TF1-167, Transcript 16 September 2005, pp. 64, 65, 66.
[522] Witness
TF1-085, Transcript 7 April 2005, pp. 28, 23, 31; Witness TF1-227, Transcript
11 April 2005, p. 9, 10; Witness TF1-282, Transcript 14 April 2005, p. 4;
Witness TF1-334, Transcript 24 May 2005, p. 49; Witness TF1-334, Transcript 13
June 2005, p. 39; Witness TF1-334, Transcript 14 June 2005, p. 68, p. 89;
Witness TF1-167, Transcript 16 September 2005, p. 16, p. 53.
[523] Blaskic Appeal Judgement, supra note 479, para. 46.
[524] Ibid., para. 50.
[525]
Joint Legal Part, supra note 22, para. 25.
[526]
Joint Legal Part, supra note 22, para. 25, citing Prosecutor
v. Furundzija, ICTY IT-95-17/1-T, Judgement,
[527]
Joint Legal Part, supra note 22, para. 25, citing Prosecutor
v. Kunarac et al., ICTY IT-96-23-T, Judgement,
[528]
Response, supra note 14, para. 20.
[529] Ibid., para. 21.
[530]
Witness TF1-334, Transcript
[531]
Witness TF1-334, Transcript
[532]
Witness TF1-334, Transcript
[533]
Witness TF1-334, Transcript
[534]
Witness TF1-334, Transcript
[535]
Witness TF1-334, Transcript
[536] See Tadic
Appeals Chamber Judgement, supra
note 33, para. 188 and 226; Vasiljevic Appeal
Judgement, supra note 474, para. 95-99.
[537] See Tadic Appeals
Chamber Judgement, supra note 33, paras 195-226.
[538] Ibid., para.227; see also Vasiljevic
Appeal Judgement, supra note 474, para. 100.
[539] Tadic Appeals Chamber Judgement, supra note 33, paras. 196, 228.
[540] Ibid., paras. 202, 220 and 228.
[541] Ibid., para.228; see also paras. 204, 220; see also Vasiljevic Appeal Judgement, supra
note 474, para.101.
[542]
Joint Legal Part, supra note 22, para. 29.
[543] Ibid., para. 31.
[544] Ibid., para. 32.
[545] Ibid., para. 33.
[546] Response,
supra note 14, para. 27.
[547] Ibid., paras.29-54.
[548]
Joint Defence Reply, supra note 13, para. 16, citing Prosecution v. Brdanin and Talic, ICTY IT-96-36, Decision on Form
of Further Amended Indictment and Prosecution Application to Amend, 26 June
2001, para. 39.
[549]
Joint Defence Reply, supra note 13, para. 17.
[550] See
Response, supra note 14, para. 35.
[551]
Joint Defence Reply, supra note 13, para. 18.
[552] Kanu
Reply supra note 13, para. 12.
[553] Ibid., para. 13, citing Prosecutor v. Krnojelac, ICTY IT-97-25-T,
Judgement,
[554] Ibid., para.14.
[555] Prosecutor v. Blagojevic and Jokic, ICTY
IT-02-60-T, Judgement,
[556] Kanu
Reply supra note 13, para.15.
[557] Ibid., para.16.
[558] We have not repeated here the authorities cited by the Prosecution.
[559] The
references to the evidence in this paragraph are by no means exhaustive.
[560] See
Indictment supra note 2, para.33.
[561]
Witness TF1-334, Transcript 16 May 2005, pp. 44-45, pp. 56-57; Witness TF1-334,
Transcript 17 May 2005, p. 22, p. 24, p. 53-54, p. 56, p. 57, pp. 58-59,
pp.72-74, pp.74-75, pp 80-81, p. 83, pp.84-85, p.86-87, pp.92-94, pp.100-102,
pp.102-103, pp. 103-105, pp. 107-108, p.112, pp. 113-115, p. 117; Witness
TF1-334,Transcript 18 May 2005, pp. 4-6, pp. 15-19, p. 21, p. 25, pp. 29-30;
pp. 33-34, Witness TF1-334, Transcript 19 May 2005, p. 4, pp. 4-7, pp. 7-10,
16-1, 23-26, pp. 31-47; Witness TF1-334, Transcript 20 May 2005, pp. 7-11, pp.
17-18, pp. 23-26, pp. 27-28, pp. 28-30, pp. 44-51, pp. 51-53, Witness TF1-334,
Transcript 24 May 2005, pp. 51-56, pp. 105-107; Witness TF1-334, Transcript 25
May 2005, pp. 5-10, pp. 53-56; Witness TF1-334, Transcript 13 June 2005, pp.
88-89, pp. 91-92; Witness TF1-334, Transcript 14 June 2005, pp. 48-49, pp.
53-55, pp. 108-112; Witness TF1-334, Transcript 15 June 2005, pp. 17-20, pp.
22-24, pp. 35-38, pp. 42-49; Witness TF1-122, Transcript 24 June 2005, pp. 7-9,
pp. 9-12, pp. 15-16, pp. 18-23, pp. 26-28, pp. 32-33, pp. 35-49, pp. 63-67, pp.
71-72; Witness TF1-062, Transcript 27 June 2005, p. 15, pp. 20-22, p. 23, pp.
36-37; Witness TF1-019 Transcript 30 June 2005, pp. 85-87, p. 117, pp. 90-95;
Witness TF1-074, Transcript 5 July 2005, pp. 11-12, pp. 48-51; Witness TF1-113,
Transcript 18 July 2005, p. 80, pp. 89-90, p. 94; Witness TF1-045, Transcript
19 July 2005, pp. 30-31, pp. 33-34, pp. 36-37, pp. 38-40, p. 53, p. 55, pp.
57-60, pp. 81-82, pp. 93-94, pp. 95-97, pp. 102-104; Witness TF1-157, Transcript
25 June 2005, p. 10, p. 16; Witness TF1-167, Transcript 15 September 2005, p.
23; Witness TF1-153, Transcript 22 September 2005, pp. 49-50, pp. 42-45, p. 94;
Witness TF1-199, Transcript 6 October 2005, pp. 69-71, p. 81, pp. 83-85, pp.
85-88; Witness TF1-217, Transcript 17 October 2005, pp. 4-5, pp. 7-9, pp.
13-14.
[562] Milosevic Decision on Motion for
Judgement of Acquittal, supra note 11, para. 293.
[563]
Indictment supra note 2, para. 36.
[564] See also Delalic Judgement, supra note 443, para. 346.
[565]
Joint Legal Part, supra note 22, para. 36.
[566] Ibid., paras. 37 and 38.
[567]
Response, supra note 14, paras. 61-72.
[568] The
references to the evidence in this paragraph are by no means exhaustive.
[569]
Witness TF1-024, Transcript 7 March 2005, pp. 45-46, p. 51; Witness TF1-023,
Transcript 10 March 2005, p. 30, 31; Witness TF1-334, Transcript 16 May 2005,
p. 21, p. 75; Witness TF1-334, Transcript 17 May 2005, pp. 52-53; Witness
TF1-334, Transcript 19 May 2005, pp. 7-9, pp. 14-15; Witness TF1-334,
Transcript 20 May 2005, pp. 27-28, pp. 40-41, pp. 85-107; Witness TF1-334,
Transcript 23 May 2005, pp. 6-8, pp. 26-39, pp. 39-42, pp. 56-59, p. 67;
Witness TF1-334, Transcript 24 May 2005, p. 3, p. 30, pp. 45-46, pp. 87-105;
Witness TF1-334, Transcript 25 May 2005, p. 5, p. 48, pp. 50-51, pp. 53-56;
Witness TF1-334, Transcript 13 June 2005, pp. 3-4, pp. 57-87, pp. 92-93, pp.
117-118; Witness TF1-334, Transcript 14 June 2005, pp. 5-7, pp. 19-22, pp.
82-83, pp. 83-87, pp. 88-89, pp. 95-97, pp. 99-100, pp. 108-112; Witness
TF1-334, Transcript 15 June 2005, pp. 16-17; Witness TF1-033, Transcript 11
July 2005, p. 6, pp. 10-12, pp. 12-13, p. 14,
pp. 20-21, pp. 23-24, pp. 24-25, p. 32, p. 32, p. 44, p. 45, p. 60, p.
61; Witness TF1-045, Transcript 19 July 2005, p. 53.
[570] Witness 023, Transcript 10 March 2005, p. 33, p. 36; TF1-334, Transcript
19 May 2005, p. 37, p. 50; Witness TF1-334,
Transcript 25 May 2005, p. 50; Witness TF1-334, Transcript 23 May 2005, p. 6,
p. 61, pp. 107, 108, 109; Witness TF1-334, Transcript 20 May 2005, p. 8, p. 17,
pp. 31, 32, p. 82; Witness TF1-334, Transcript 13 June 2005, p. 6, p. 13, p.
26, pp. 58, 59; Witness TF1-334, Transcript 19 May 2005, p. 7, p. 16, p. 26;
Witness TF1-334, Transcript 18 May 2005, p. 23, 24; Witness TF1-334, Transcript
16 May 2005, pp. 74, 75; Witness TF1-334, Transcript 15 June 2005, p. 25, pp.
32, 33, pp. 42, 43; Witness TF1-334, Transcript 14 June 2005, p. 26; Witness
TF1-167, Transcript 16 September 2005, p. 70, pp. 64, 65, 66, p. 76; Witness
TF1-153, Transcript 22 September 2005, p. 33, p. 36.
[571]
Witness TF1-085, Transcript 7 April 2005, pp. 32, 38, 69;
Witness TF1-227, Transcript 11 April 2005, pp. 8, 25; Witness TF1-282,
Transcript 13 April 2005, pp. 14-15, p. 21; Witness TF1-334, Transcripts 13
June 2005, p. 39; Witness TF1-334, Transcripts 23 May 2005, p. 24, 72; Witness
TF1-334, Transcripts 24 May 2005, pp. 24, 62; Witness TF1-158, Transcripts 26
July 2005, p. 38; Witness TF1-167, Transcripts 16 September 2005, p. 17, p. 53.
[572] Examples include the Prosecutor
v. Delalic et al, Case No. IT-96-21-A, Appeals Chamber, Judgement,
[573] Archbold on Criminal Pleading, Evidence and Practice, 43rd Edition, Volume I, page 46, paragraph 1-57. See also Jones and Powles on International Criminal Practice, 3rd Edition, paragraphs 8.2.5-8.2.7.
[574] Prosecutor v. Sam Hinga
Norman et al., Case No. SCSL-04-14-PT, Reasoned Majority decision on
Prosecution Motion for a Ruling on the Admissibility of Evidence,
[575] Prosecutor v. Alex Tamba
Brima, et al., Case No. SCSL-04-16-PT, Trial Chamber Decision on
Prosecution Request for Leave to Amend the Indictment,
[576] Ibid., para. 8.
[577] Ibid., paras. 50-51.
[578] In an earlier motion, Trial Chamber I had denied a Prosecution leave to amend the indictment to include sex crimes. In the absence of a count embodying crimes of a sexual nature, the Prosecution sought to lead evidence of “forced marriages” under “other inhumane acts”.
[579] Prosecutor v. Sam Hinga
Norman et. al, Case No. SCSL-04-14-PT, Trial Chamber, Reasoned Majority
Decision on Prosecution Motion for a Ruling on the Admissibility of Evidence,
[580] Ibid., para 19 (iii).