University of Minnesota



Prosecutor v. Fofana, Case No. SCSL-04-14-A, Appeals Judgment (May 28, 2008).




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SPECIAL COURT FOR SIERRA LEONE

 

 

 

IN THE APPEALS CHAMBER

 

 

Before:           

Justice George Gelaga King, Presiding Judge

Justice Emmanuel Ayoola

Justice Renate Winter

Justice Raja Fernando

Justice Jon M. Kamanda

 

Registrar:

 

Herman von Hebel

Date:  

28 May 2008

PROSECUTOR

Against

Moinina fofana

allieu kondewa

(Case No.SCSL-04-14-A)

 

 

 

JUDGMENT

 

 

 

Office of the Prosecutor:

Stephen Rapp

Christopher Staker

 

Defence Counsel for Moinina Fofana:

Wilfred Davidson Bola-Carrol

Mohamed Pa-Momo Fofana

Karim Agha

Joseph Kamara

Régine Gachoud

Elisabeth Baumgartner

Bridget Osho

Francis Banks-Kamara

 

 

 

Defence Counsel for Allieu Kondewa:

Yada Williams

Osman Jalloh

 

 

 

 


Contents

 

I. introduction............................................................................................................ 2

A. The Special Court for Sierra Leone.......................................................... 2

B. Procedural and Factual Background................................................... 3

1. The Armed Conflict in Sierra Leone: The Kamajors and the Civil Defence Forces................................................................................................................................ 3

(a) The Kamajors....................................................................................................... 3

(b) The Civil Defence Forces...................................................................................... 4

2. The Indictment.......................................................................................................... 5

3. The Charges.............................................................................................................. 6

4. Summary of the Judgment........................................................................................ 9

5. The Verdict and Sentences..................................................................................... 10

C. The Appeal............................................................................................................. 11

1. Notices of Appeal................................................................................................... 11

2. The Grounds of Appeal........................................................................................... 12

D. Some Guiding Principles on Appellate Review................................... 13

II. ISSUES arising IN both appeals.................................................................... 15

A. Prosecution’s Third and Fourth Grounds of Appeal and Kondewa’s Fourth Ground of Appeal: Individual Criminal Responsibility Pursuant to Article 6(1) of the Statute............. 15

1. Introduction............................................................................................................. 15

2. Preliminary Issue: Scope of the Prosecution’s Appeal.......................................... 17

3. Liability for Crimes Committed in Tongo Town................................................... 18

(a) The Findings of the Trial Chamber..................................................................... 18

(b) Fofana................................................................................................................ 20

(i) The Prosecution’s Fourth Ground of Appeal: Instigation............................... 20

a. Submissions of the Parties........................................................................... 20

b. Discussion................................................................................................... 21

(ii) The Prosecution’s Fourth Ground of Appeal: Planning................................. 23

a. Submissions of the Parties........................................................................... 23

b. Discussion................................................................................................... 25

(c) Kondewa............................................................................................................. 26

(i) Kondewa’s Fourth Ground of Appeal: Aiding and Abetting.......................... 26

a. Submissions of the Parties........................................................................... 26

b. Discussion................................................................................................... 28

(ii) Prosecution’s Fourth Ground of Appeal: Instigation..................................... 31

a. Submissions of the Parties........................................................................... 31

b. Discussion................................................................................................... 32

4. Liability for Crimes in Koribondo, Bo District and Kenema District................... 33

(a) The Findings of the Trial Chamber..................................................................... 33

(b) Fofana................................................................................................................ 36

(i) The Prosecution’s Third and Fourth Grounds of Appeal: Planning................ 36

a. Submissions of the Parties........................................................................... 36

b. Discussion................................................................................................... 37

(ii) The Prosecution’s Third and Fourth Grounds of Appeal: Aiding and Abetting...................................................................................................................... 38

a. Submissions of the Parties........................................................................... 38

b. Discussion................................................................................................... 38

(c) Kondewa............................................................................................................. 39

(i) The Prosecution’s Third and Fourth Grounds of Appeal: Aiding and Abetting...................................................................................................................... 39

a. Submissions of the Parties........................................................................... 39

b. Discussion................................................................................................... 40

5. Summary of Findings............................................................................................. 41

B. Prosecution’s Fifth Ground of Appeal and Kondewa’s Fifth Ground of Appeal: Enlisting Children Under the Age of 15 Years into an Armed Force or Group and/or Using Them to Participate Actively in Hostilities........................................................ 42

1. Introduction............................................................................................................. 42

2. The Findings of the Trial Chamber........................................................................ 43

3. Kondewa’s Liability............................................................................................... 44

(a) The Prosecution’s Fifth Ground of Appeal: Whether the Trial Chamber’s Findings Reflect the Full Extent of Kondewa’s Liability................................... 44

(i) Submissions of the Parties.............................................................................. 44

(ii) Discussion...................................................................................................... 45

a. Whether Kondewa Committed or Aided and Abetted the Recruitment by Enlisting More Than one Child................................................................. 46

b. Whether Kondewa Committed or Aided and Abetted the Use of Child Soldiers..................................................................................................... 47

(b) Kondewa’s Fifth Ground of Appeal: Committing the Crime of Enlistment of Children............................................................................................................ 48

(i) Submissions of the Parties.............................................................................. 48

(ii) Discussion...................................................................................................... 49

a. Alleged Error in Finding that Initiation was Enlistment............................... 49

(iii) Conclusion.................................................................................................... 51

4. Fofana’s Liability................................................................................................... 51

(a) Prosecution’s Fifth Ground of Appeal: Fofana’s Liability for Aiding and Abetting Enlistment and Use............................................................................. 51

(i) Submissions of the Parties.............................................................................. 51

(ii) Discussion...................................................................................................... 53

5. Conclusion.............................................................................................................. 54

III. KONDEWA’s APPEAL............................................................................................. 54

A. Kondewa’s First Ground of Appeal: Superior Responsibility Pursuant to Article 6(3) of the Statute in Relation to Bonthe District................................................................................................................. 54

1. Introduction............................................................................................................. 54

2. The Findings of the Trial Chamber........................................................................ 55

3. Submissions of the Parties..................................................................................... 56

4. Preliminary Issues.................................................................................................. 59

(a) Whether the Alleged Error is an Error of Law or an Error of Fact..................... 59

(b) Scope of Kondewa’s Arguments........................................................................ 59

5. Discussion............................................................................................................... 60

6. Application of the Effective Control Test.............................................................. 61

(a) The de jure Status of Kondewa........................................................................... 62

(b) The August 1997 Incident.................................................................................. 63

(c) Events Occurring during the 15 February 1998 Attack on Bonthe..................... 64

(d) Letter from the Attorney General in March 1998............................................... 64

7. Disposition.............................................................................................................. 65

B. Kondewa’s Second Ground of Appeal: Alleged error in finding Kondewa responsible for committing murder at Talia/Base Zero........................................................................................................................ 66

1. Introduction............................................................................................................. 66

2. Submissions of the Parties..................................................................................... 66

3. Discussion............................................................................................................... 67

(a) Alleged Error in Relying on Uncorroborated Hearsay Testimony of one Witness and Inference of Guilt Drawn from Circumstantial Evidence............................ 67

4. Conclusion.............................................................................................................. 70

C. Kondewa’s Third Ground of Appeal: Superior Responsibility Pursuant to Article 6(3) of the Statute in Relation to Moyamba District........................................................................................... 70

1. Introduction and Findings of the Trial Chamber................................................... 70

2. Submissions of the Parties..................................................................................... 71

3. Discussion............................................................................................................... 72

4. Disposition.............................................................................................................. 74

D. Kondewa’s Sixth Ground of Appeal: Cumulative Convictions and Collective Punishments.................................................................... 74

1. Introduction............................................................................................................. 74

2. Discussion............................................................................................................... 75

3. Disposition.............................................................................................................. 79

IV. Prosecution’s appeal..................................................................................... 79

A. Prosecution’s First Ground: Crimes Against Humanity............... 79

1. Introduction............................................................................................................. 79

2. The Findings of the Trial Chamber........................................................................ 80

3. Alleged Errors of Law............................................................................................ 81

(a) Submissions of the Parties.................................................................................. 81

(b) Discussion.......................................................................................................... 83

(i) Whether Fighting for Democracy May be a Material Element for the Purposes of Crimes Against Humanity......................................................................... 83

(ii) Whether an Attack Could Not be One “Directed Against A Civilian Population” if Civilians are Attacked in Connection with Legitimate Military Operations.................................................................................................... 84

4. Alleged Errors of Fact............................................................................................ 85

(a) Submissions of the Parties.................................................................................. 85

(b) Preliminary Considerations................................................................................ 86

(c) The Trial Chamber’s Findings of Fact................................................................ 90

(i) The Attacks on Tongo..................................................................................... 90

(ii) The Attack on Koribondo.............................................................................. 93

(iii) The Attack on Bo Town................................................................................ 95

(iv) The Attack on Bonthe................................................................................... 98

(v) The Attack on Kenema................................................................................. 100

(d) Discussion........................................................................................................ 101

5. The Act Must be Part of the Widespread or Systematic Attack Against the Civilian Population............................................................................................ 104

6. The Perpetrators Knew or had Reason to Know That There was an Attack Against the Civilian Population and Their Acts Were Part of the “Attack”.................. 105

7. Conclusion............................................................................................................ 106

8. Disposition............................................................................................................ 106

B. Prosecution’s Sixth Ground of Appeal: Fofana’s and Kondewa’s Acquittals for Acts of Terrorism.............................. 107

1. Introduction and Findings of the Trial Chamber................................................. 107

2. Submissions of the Parties................................................................................... 108

(a) The Trial Chamber’s Limited Interpretation of Count 6................................... 108

(b) Aiding and Abetting Acts of Terrorism in Tongo............................................. 110

(c) Responsibility of Fofana as a Superior for Acts of Terrorism under Article 6(3) of the Statute in Koribondo............................................................................. 112

(d) Responsibility of Kondewa as a Superior for Acts of Terrorism under Article 6(3) of the Statute in Bonthe District.............................................................. 113

3. Discussion............................................................................................................. 114

Applicable law: acts of terrorism............................................................... 114

(i) Acts or Threats of Violence........................................................................... 115

(ii) That the Offender Wilfully Made the Civilian Population or Individual Civilians not Taking Direct Part in Hostilities the Object of Those Acts or Threats of Violence..................................................................................... 116

(iii) Specific Intent to Spread Terror.................................................................. 117

(a) The Trial Chamber’s Limited Interpretation of Count 6................................... 117

(b) Fofana’s and Kondewa’s Responsibility for Aiding and Abetting Acts of Terrorism in Tongo......................................................................................... 119

(c) Fofana’s Superior Responsibility Under Article 6(3) of the Statute for Acts of Terrorism in Koribondo.................................................................................. 121

(d) Kondewa’s Superior Responsibility Under Article 6(3) of the Statute for Acts of Terrorism in Bonthe District........................................................................... 122

4. Disposition............................................................................................................ 123

C. Prosecution’s Seventh Ground of Appeal: Burning as Pillage................................................................................................................................ 123

1. Introduction........................................................................................................... 123

2. Submissions of the Parties................................................................................... 124

3. Discussion............................................................................................................. 126

4. Disposition............................................................................................................ 132

D. Prosecution’s Eighth Ground of Appeal: Denial of Leave To Amend the Indictment in Order To Charge Sexual Crimes..... 133

1. Procedural History................................................................................................ 133

2. Introduction........................................................................................................... 134

3. Discussion............................................................................................................. 135

(a) Whether the Appeals Chamber Lacks Jurisdiction........................................... 135

(b) Res Judicata...................................................................................................... 136

(c) Whether the Ground of Appeal Falls Outside the Scope of Article 20 of the Statute............................................................................................................. 137

E. Prosecution’s Ninth Ground of Appeal: Alleged Error Concerning Admissibility of Evidence of Sexual Violence.... 139

1. Introduction and Procedural Background............................................................. 139

2. Submissions of the Parties................................................................................... 141

3. Discussion............................................................................................................. 144

4. Conclusion............................................................................................................ 148

F. Prosecution’s Tenth Ground of Appeal: Sentencing.................... 148

1. Background........................................................................................................... 148

(a) Fofana.............................................................................................................. 148

(b) Kondewa.......................................................................................................... 150

2. Standard of Review............................................................................................... 152

3. Alleged Refusal to Consider Sentencing Practices of the National Courts of Sierra Leone.................................................................................................................. 154

(a) Trial Chamber Findings.................................................................................... 154

(b) Submissions of the Parties............................................................................... 154

(c) Discussion........................................................................................................ 156

4. Alleged Error in Considering Mitigating Factors................................................ 156

(a) Fofana’s and Kondewa’s Statements at the Sentencing Hearing...................... 156

(i) Trial Chamber Findings................................................................................. 156

(ii) Submissions of the Parties........................................................................... 157

(iii) Discussion................................................................................................... 159

(b) Fofana’s and Kondewa’s Lack of Training...................................................... 160

(i) Trial Chamber Findings................................................................................. 160

(ii) Submissions of the Parties........................................................................... 161

(iii) Discussion................................................................................................... 162

(c) Conduct Subsequent to the Conflict................................................................. 163

(i) Trial Chamber Findings................................................................................. 163

(ii) Submissions of the Parties........................................................................... 163

(iii) Preliminary Issue......................................................................................... 164

(d) Lack of Previous Convictions........................................................................... 165

(i) Trial Chamber Findings................................................................................. 165

(ii) Submissions of the Parties........................................................................... 165

(iii) Discussion................................................................................................... 166

(e) CDF’s Alleged “Just Cause” and Fofana’s and Kondewa’s Motive of Civic Duty........................................................................................................................ 166

(i) Trial Chamber Findings................................................................................. 166

(ii) Submissions of the Parties........................................................................... 167

(iii) Discussion................................................................................................... 169

(f) The Purpose of Reconciliation.......................................................................... 173

(i) Trial Chamber Findings................................................................................. 173

(ii) Submissions of the Parties........................................................................... 174

(iii) Preliminary Issue......................................................................................... 176

5. Alleged Error in Considering the Sentences Would run Concurrently Without Adequate Consideration..................................................................................... 176

(a) Trial Chamber Findings.................................................................................... 176

(b) Submissions of the Parties............................................................................... 176

(c) Discussion........................................................................................................ 177

6. Manifest Inadequacy of the Sentence................................................................... 180

7. Conclusions on Sentencing................................................................................... 180

V. disposition............................................................................................................ 187

VI. Partially Dissenting Opinion of Honourable Justice George Gelaga King............................................................................................................ 1

VII. partially dissenting opinion of Honourable justice renate winter........................................................................................................................ 1

A. Introduction......................................................................................................... 1

B. Kondewa’s Fifth Ground of Appeal and Prosecution’s Fifth Ground of Appeal.............................................................................................. 2

1. Introduction............................................................................................................... 2

2. Kondewa’s Liability for Enlistment and Use of Children....................................... 2

(a) Kondewa’s Fifth Ground of Appeal: Enlistment of Witness TF2-021................. 2

3. Prosecution’s Fifth Ground of Appeal: Kondewa’s Responsibility  For Enlisting Children (More Than One) Under Age of Fifteen Years into an Armed Force Or Group...................................................................................................................... 6

4. Prosecution’s Fifth Ground of Appeal: Kondewa’s Liability for Aiding and Abetting the Use of Child Soldiers........................................................................ 9

5. Prosecution’s Fifth Ground of Appeal: Fofana’s Liability for Enlistment and Use of Child Soldiers.................................................................................................. 10

6. Conclusion.............................................................................................................. 12

C. Kondewa’s Sixth Ground of Appeal: Cumulative Convictions. 12

1. Introduction............................................................................................................. 12

2. Whether Kondewa Raised The Argument On Appeal........................................... 13

3. Whether ‘Collective Punishments’ Is A Specific Intent Crime............................. 14

4. Whether The Factual Findings Prove Collective Punishments............................. 15

D. Prosecution’s Eighth Ground of Appeal: Denial of Leave To Amend the Indictment in Order To Charge Sexual Crimes....... 20

1. Introduction............................................................................................................. 20

2. The Majority’s Decision on Prosecution’s Eighth Ground of Appeal.................. 21

3. The Appeal Against the Indictment Amendment Decision................................... 25

(i) Whether The Prosecution Failed to Act With Due Diligence........................... 25

(ii) Whether The Trial Chamber Correctly Balanced the Rights of the Accused with Other Relevant Factors......................................................................... 27

4. Conclusion.............................................................................................................. 30

E. Whether Reconciliation Can Be Considered in Sentencing........ 31

VIII. PARTIALly DISSENTING OPINION ON SENTENCING of JUSTICE JON KAMANDA.................................................................................................................... 1

IX. annex a - procedural history..................................................................... 1

X. ANNEX B: GLOSSARY................................................................................................. 5

A. Cases Cited............................................................................................................. 5

1. Special Court for Sierra Leone................................................................................. 5

2. The International Criminal Tribunal for Rwanda.................................................... 6

3. International Criminal Tribunal for the former Yugoslavia.................................... 7

B. Special Court Instruments............................................................................ 9

C. International Legal Instruments............................................................ 9


The APPEALS CHAMBER of the Special Court for Sierra Leone (“Appeals Chamber”) comprised of Hon. Justice George Gelaga King, Presiding, Hon. Justice Emmanuel Ayoola, Hon. Justice Renate Winter, Hon. Justice Raja Fernando, and Hon. Justice Jon Moadeh Kamanda;

SEISED of appeals from the Judgment rendered by Trial Chamber I (“Trial Chamber”) on 2 August 2007, in the case of Prosecutor v. Fofana and Kondewa, Case No. SCSL-04-14-T (“CDF Trial Judgment” or “Trial Judgment”);[1]

HAVING CONSIDERED the written and oral submissions of both Parties and the Record on Appeal;

HEREBY RENDERS its Judgment.


I.    introduction

A.   The Special Court for Sierra Leone

1.         In 2000, following a request from the Government of Sierra Leone, the United Nations Security Council authorised the United Nations Secretary-General to negotiate an agreement with the Government of Sierra Leone to establish a Special Court to prosecute persons responsible for the commission of crimes against humanity, war crimes, other serious violations of international humanitarian law and violations of Sierra Leonean law during the armed conflict in Sierra Leone.[2]

2.         As a result, the Special Court for Sierra Leone was established in 2000 by an agreement between the United Nations and the Government of Sierra Leone (“Special Court Agreement”)[3] with a mandate to try those 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.[4]

3.         The Statute of the Special Court (“Statute”) empowers the Special Court to prosecute persons who committed crimes against humanity, serious violations of Article 3 Common to the 1949 Geneva Conventions for the Protection of War Victims and of Additional Protocol II, other serious violations of international humanitarian law and specified crimes under Sierra Leonean law.[5] 

B.   Procedural and Factual Background

1.   The Armed Conflict in Sierra Leone: The Kamajors and the Civil Defence Forces

(a)   The Kamajors

4.         When the civil conflict in Sierra Leone began in 1991, the military decided to enlist Kamajors as vigilantes to scout the terrain.[6]  Because the Kamajors were limited in number, the community leaders and their chiefs made arrangements to encourage the Kamajors to expand their defence by increasing their manpower through initiation.[7]  The Kamajors were then placed by their paramount chiefs at the disposal of government soldiers and they acted as allies in the defence of their areas against the rebels.[8]  After each deployment, the Kamajors would be returned to their respective communities.[9]  In 1996 after the death of Chief Lebbie Lagbeyor, the head of the Kamajors in the Southern Region, the paramount chiefs of the Southern Region appointed Regent Chief Samuel Hinga Norman as Chairman of the Kamajors for the region.[10]

5.         The term “Kamajor” originally referred to a “Mende” male who possessed specialized knowledge of the forest and the use of medicines associated with the bush.[11]  Kamajors not only procured meat but also protected communities from “natural and supernatural threats said to reside beyond the village boundaries.”[12]  While referred to as Kamajors by the Mende, other ethnic groups refer to them by different names.[13]

6.         The emergence of the Kamajor Society may be traced back to the Eastern Region Defence Committee (“ERECOM”), of which Dr. Alpha Lavalie was Chairman and Dr. Albert Joe Demby was Treasurer.[14]  The Kamajor Society was formed at the local level in 1991, and was structured by Dr. Lavalie in 1992, immediately after the military coup by President Strasser’s National Provisional Ruling Council.[15]

7.         On 30 November 1996, the Government of Sierra Leone and the Revolutionary United Front (“RUF”) signed the Abidjan Peace Accord, but the war resumed less than two months later.[16]  At this time there was general dissatisfaction among soldiers in the military, primarily due to complaints about their welfare, particularly their rations of rice.[17]  After President Ahmad Tejan Kabbah was overthrown in a military coup on 25 May 1997, the Kamajors went underground in the bush.[18]  However, following an announcement on the BBC rallying the Kamajors, Kapras, Gbethis, Tamaboros and Donsos, they assembled again in Pujehun District and took up arms to fight against the Armed Forces Revolutionary Council (“AFRC”).[19] 

(b)   The Civil Defence Forces

8.         Upon President Kabbah’s arrival in exile in Conakry after the coup, the Organisation of African Unity (“OAU”) designated the Economic Community of West African States (“ECOWAS”) to restore President Kabbah’s government to power.  ECOWAS in turn mandated its Monitoring Group (“ECOMOG”) to carry out the task.[20]  In a bid to re-establish his government, President Kabbah created the Civil Defense Forces (“CDF”) to coordinate the activities within the various militia groups and with ECOMOG.[21] The CDF was a security force comprised mainly of Kamajors who fought in the conflict in Sierra Leone between November 1996 and December 1999.[22]  The CDF supported the elected government of Sierra Leone in its fight against the RUF and the AFRC.[23]  President Kabbah appointed the Vice-President Albert Joe Demby as Chairman of the CDF, and Sam Hinga Norman (“Norman”) as the National Coordinator.  In his capacity as National Coordinator, Norman was responsible for coordinating the activities of the CDF/Kamajors in supporting the military operations of ECOMOG to reinstate President Kabbah’s government.[24]  Norman was also responsible for obtaining assistance and logistics from ECOMOG in Liberia.[25]

9.         ECOMOG collaborated with the CDF operationally, particularly in the Bo-Kenema axis.[26]  In addition, the Nigerian contingent of ECOMOG supplied the CDF with logistics such as arms, ammunition, fuel, food, money, intelligence and medical care.[27]

10.       Alleging that Norman, Moinina Fofana (“Fofana”) and Allieu Kondewa (“Kondewa”) were individually responsible pursuant to Article 6(1) and/or Article 6(3) of the Statue for alleged crimes committed by the Kamajors, the Prosecution charged Norman,  Fofana and Kondewa under Article 15 of the Statute in an 8-Count Indictment with crimes against humanity, violations of Article 3 common to the Geneva Conventions and of Additional Protocol II and other serious violations of international humanitarian law in violation of Articles 2, 3 and 4 of the Statute.

2.   The Indictment

11.       The original Indictments against Fofana and Kondewa, approved on 24 June 2003,[28] were later consolidated with the Indictment against Norman, on 5 February 2004.[29] 

12.       The Consolidated Indictment (“Indictment”)[30] charged the three persons pursuant to Article 2 of the Statute with crimes against humanity, namely: murder and “other inhumane acts” in Counts 1 and 3, respectively, pursuant to Article 3 of the Statute; violations of Article 3 common to the Geneva Conventions and of Additional Protocol II, namely: violence to life, health and physical or mental well-being of persons, in particular murder and cruel treatment, pillage, acts of terrorism and collective punishments in Counts 2, 4, 5, 6 and 7, respectively; and, pursuant to Article 4 of the Statute, with a serious violation of international humanitarian law, namely: enlisting children under the age of 15 years into armed forces or groups and/or using them to participate actively in hostilities in Count 8.

13.       Upon Norman’s death on 22 February 2007, after the completion of the trial but before pronouncement of Judgment, the Trial Chamber on 21 May 2007 ruled that the trial proceedings were terminated against him and that the Judgment in relation to the remaining two Accused would be based on the evidence adduced on the record by all of the parties.[31]

3.   The Charges

14.       The allegations that formed the basis of the charges against Fofana and Kondewa, as contained in the Indictment, were that:

“The CDF, largely Kamajors, engaged the combined RUF/AFRC forces in armed conflict in various parts of Sierra Leone – to include the towns of Tongo Field, Kenema, Bo, Koribondo and surrounding areas and the Districts of Moyamba and Bonthe.  Civilians, including women and children, who were suspected to have supported, sympathized with, or simply failed to actively resist the combined RUF/AFRC forces were termed ‘Collaborators’ and specifically targeted by the CDF.  Once so identified, these ‘Collaborators’ and captured enemy combatants were unlawfully killed.  Victims were often shot, hacked to death, or burnt to death.  Other practices included human sacrifices and cannibalism.”[32]

“These actions by the CDF, largely Kamajors, which also included looting, destruction of private property, personal injury and the extorting of money from civilians, were intended to threaten and terrorize the civilian population.  Many civilians saw these crimes committed; others returned to find the results of these crimes – dead bodies, mutilated victims and looted and burnt property.  Typical CDF actions and the resulting crimes included:

a.      Between 1 November 1997 and about 1 April 1998, multiple attacks on Tongo Field and surrounding areas and towns during which Kamajors unlawfully killed or inflicted serious bodily harm and serious physical suffering on an unknown number of civilians and captured enemy combatants.  Kamajors screened the civilians and those identified as ‘Collaborators,’ along with any captured enemy combatants, were unlawfully killed.

b.      On or about 15 February 1998 Kamajors attacked and took control of the town of Kenema.  In conjunction with the attack and following the attack, both at and near Kenema and at a nearby location known as SS Camp, Kamajors continued to identify suspected ‘Collaborators,’ unlawfully killing or inflicting serious bodily harm and serious physical suffering on an unknown number of civilians and captured enemy combatants.  Kamajors also entered the police barracks in Kenema and unlawfully killed an unknown number of Sierra Leone Police Officers.

c.      In or about January and February 1998, the Kamajors attacked and took control of the towns of Bo, Koribondo, and the surrounding areas.  Thereafter, the practice of killing captured enemy combatants and suspected ‘Collaborators’ continued and as a result, Kamajors unlawfully killed or inflicted serious bodily harm and serious physical suffering on an unknown number of civilians and enemy combatants.  Also, as of these attacks in and around Bo and Koribondo, Kamajors unlawfully destroyed and looted an unknown number of civilian owned and occupied houses, buildings and businesses.

d.      Between about October 1997 and December 1999, Kamajors attacked or conducted armed operations in the Moyamba District, to include the towns of Sembehun and Gbangbatoke.  As a result of the actions Kamajors continued to identify suspected ‘Collaborators’ and others suspected to be not supportive of the Kamajors and their activities.  Kamajors unlawfully killed an unknown number of civilians.  They unlawfully destroyed and looted civilian owned property.

e.      Between October 1997 and December 1999, Kamajors attacked or conducted armed operations in the Bonthe District, generally in and around the towns and settlements of Talia, Tihun, Maboya, Bolloh, Bembay, and the island town of Bonthe.  As a result of these actions Kamajors identified suspected ‘Collaborators’ and others suspected to be not supportive of the Kamajors and their activities.  They unlawfully killed an unknown number of civilians.  They destroyed and looted civilian owned property.

f.       In an operation called “Black December,” the CDF blocked all major highways and roads leading to and from major towns mainly in the southern and eastern Provinces.  As a result of these actions, the CDF unlawfully killed an unknown number of civilians and captured enemy combatants.[33]

15.       It was alleged that all acts or omissions charged in the Indictment as crimes against humanity were committed as part of a widespread or systematic attack directed against the civilian population of Sierra Leone,[34] stated as referring to “persons who took no active part in the hostilities, or were no longer taking an active part in the hostilities.”[35]

16.       In regard to the status, standing and functions of Norman, Fofana and Kondewa within the CDF structure, and the individual criminal responsibility of Fofana and Kondewa, it was stated in the Indictment, that, at all times relevant to this Indictment:

(i) “. . . Norman was the National Coordinator of the CDF.  As such he was the principal force in establishing, organizing, supporting, providing logistical support, and promoting the CDF.  He was also the leader and Commander of the Kamajors and as such had de jure and de facto command and control over the activities and operations of the Kamajors.”[36]

(ii) “. . . Fofana was the National Director of War of the CDF and Kondewa was the High Priest of the CDF.  As such, together with Norman, Fofana and Kondewa were seen and known as the top leaders of the CDF. Fofana and Kondewa took directions from and were directly answerable to Norman.  They took part in policy, planning and operational decisions of the CDF.”[37]

(iii) “. . . Fofana acted as leader of the CDF in the absence of Norman and was regarded as the second in command.  As National Director of War, he had direct responsibility for implementing policy and strategy for prosecuting the war.  He liaised with field commanders, supervised and monitored operations.  He gave orders to and received reports about operations from subordinate commanders, and he provided them with logistics including supply of arms and ammunition.  In addition to the duties listed above at the national CDF level, Fofana commanded one battalion of Kamajors.”[38]

(iv) “. . . Kondewa, as High Priest had supervision and control over all initiators within the CDF and was responsible for all initiations within the CDF, including the initiation of children under the age of 15 years.  Furthermore, he frequently led or directed operations and had direct command authority over units within the CDF responsible for carrying out special missions.”[39]

(v) “. . . Norman, as National Coordinator of the CDF and Commander of the Kamajors knew and approved the recruiting, enlisting, conscription, initiation, and training of Kamajors, including children below the age of 15 years.  . . .  Norman, . . . Fofana, as the National Director of War of the CDF; and . . . Kondewa as the High Priest of the CDF, knew and approved the use of children to participate actively in hostilities.”[40]

(vi) “In the positions referred to in the aforementioned paragraphs, . . . Norman, . . . Fofana and . . . Kondewa, individually or in concert, exercised authority, command and control over all subordinate members of the CDF.”[41]

(vii) “The plan, purpose or design of  . . . [these three] and subordinate members of the CDF was to use any means necessary to defeat the RUF/AFRC forces and to gain and exercise control over the territory of Sierra Leone.  This included gaining complete control over the population of Sierra Leone and the complete elimination of the RUF/AFRC, its supporters, sympathizers, and anyone who did not actively resist the RUF/AFRC occupation of Sierra Leone.  Each Accused acted individually and in concert with subordinates, to carry out the said plan, purpose or design.”[42]

(viii) “ . .  [The three] by their acts or omissions are individually criminally responsible pursuant to Article 6.1 of the Statute for the crimes referred to in Articles 2, 3 and 4 of the Statute as alleged in this indictment, which crimes each of them planned, instigated, ordered, committed, or in whose planning, preparation or execution each Accused otherwise aided and abetted, or which crimes were within a common purpose, plan or design in which each Accused participated or were a reasonably foreseeable consequence of the common purpose, plan or design in which each Accused participated.”[43]

In addition, or alternatively, pursuant to Article 6(3) of the Statute, . . .[each of them] while holding positions of superior responsibility and exercising command and control over their subordinates, . . . [is] individually criminally responsible for the crimes referred to in Articles 2, 3 and 4 of the Statute.  Each Accused is responsible for the criminal acts of his subordinates in that he knew or had reason to know that the subordinate was about to commit such acts or had done so and each Accused failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof.[44]

4.   Summary of the Judgment

17.       The Trial Chamber found that Fofana and Kondewa were not guilty of crimes against humanity (murder and ‘other inhumane acts’ under Counts 1 and 3, respectively) because it was not proved beyond reasonable doubt that the civilian population was the primary object of the attack, although the requirement of a widespread attack was established.[45]  It, however, found that the general requirements for war crimes and other serious violations of international humanitarian law were satisfied because an armed conflict occurred in Sierra Leone from March 1991 to January 2002, the alleged crimes were closely related to the armed conflict and the perpetrators were aware of the protected status of the victims who were either civilians or captured enemy combatants.[46]

18.       The Appeals Chamber will consider the findings that led to the verdicts when it deals with the several grounds of appeal.  It suffices to state that Fofana was found individually criminally responsible not as direct perpetrator but either as a secondary participant or as a person bearing superior responsibility, while the same can be said of Kondewa, except in respect of Count 8 where he was found guilty of enlisting child soldiers and in respect of Count 2 where he was found guilty of unlawful killing of a town commander in Talia (Base Zero).

5.   The Verdict and Sentences

19.       On 2 August 2007, a majority of the Trial Chamber, Justice Thompson dissenting, found Fofana and Kondewa guilty under Counts 2 and 4 and convicted them of: violence to life, health and physical or mental well-being of persons, in particular murder and cruel treatment respectively, charged in Counts 2 and 4, respectively; and pillage and collective punishments charged in Counts 5 and 7, respectively.[47]  Fofana and Kondewa were found not guilty of the crimes against humanity of murder and “other inhumane acts” charged in Counts 1 and 3, respectively; and, of acts of terrorism charged in Count 6.[48]  A majority of the Trial Chamber, Justice Thompson dissenting, found Kondewa guilty of enlisting children under the age of 15 years into an armed group and/or using them to participate actively in hostilities as charged in Count 8 and convicted him accordingly.[49]  The majority of the Trial Chamber, Justice Itoe dissenting, found Fofana not guilty of the same charge (Count 8).[50]

20.       On 9 October 2007, the Trial Chamber sentenced Fofana and Kondewa to terms of imprisonment for all of the crimes for which they were convicted.[51]

21.       Fofana was sentenced to six (6) years imprisonment for 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 (Count 2); six (6) years imprisonment for violence to life, health and physical or mental well-being of persons, in particular cruel treatment, a violation of Article 3 common to the Geneva Conventions and of Additional Protocol II (Count 4); three (3) years imprisonment for pillage, a violation of Article 3 common to the Geneva Conventions and of Additional Protocol II (Count 5) and four (4) years imprisonment for collective punishments, a violation of Article 3 common to the Geneva Conventions and of Additional Protocol II (Count 7).[52]  The Trial Chamber ordered that the sentences shall be served concurrently[53] and shall take effect as from 29 May 2003, when Fofana was arrested and taken into the custody of the Special Court.[54]

22.       Kondewa was sentenced to eight (8) years imprisonment for 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 (Count 2); eight (8) years imprisonment for violence to life, health and physical or mental well-being of persons, in particular cruel treatment, a violation of Article 3 common to the Geneva Conventions and of Additional Protocol II (Count 4); five (5) years imprisonment for pillage, a violation of Article 3 common to the Geneva Conventions and of Additional Protocol II (Count 5); six (6) years imprisonment for collective punishments, a violation of Article 3 common to the Geneva Conventions and of Additional Protocol II (Count 7); seven (7) years imprisonment for enlisting children under the age of 15 years into armed forces or groups and/or using them to participate actively in hostilities, an other serious violation of international humanitarian law (Count 8).[55]  The Trial Chamber ordered that the sentences shall be served concurrently[56] and shall take effect as from 29 May 2003, when Kondewa was arrested and taken into the custody of the Special Court.[57]

C.   The Appeal

1.   Notices of Appeal

23.       The Prosecution and Kondewa appealed and filed their respective Notices of Appeal on 23 October 2007.[58]  There was no appeal by Fofana.

24.       In its Notice of Appeal, the Prosecution filed ten (10) Grounds of Appeal.  Kondewa filed six (6) Grounds of Appeal.[59]

2.   The Grounds of Appeal

25.       Kondewa  complained in Grounds 1, 2, 3 and 5 of his Grounds of Appeal, respectively, that the majority of the Trial Chamber erred both in law and in fact  in finding that the Prosecution had proved beyond reasonable doubt: first, that he was individually criminally responsible as a superior, pursuant to Article 6(3) for the crimes committed in Bonthe Town and the surrounding areas under Counts 2, 4, 5 and 7; second, that he was individually criminally responsible pursuant to Article 6(1) for committing murder as a war crime as charged under Count 2 of the Indictment in Talia/Base Zero; third, that he was individually criminally responsible as a superior pursuant to Article 6(3) for pillage under Count 5 in the Moyamba District; and fourth, that he was individually criminally responsible pursuant to Article 6(1) for committing the crime of enlisting children under the age of 15 years into an armed force or group and/or using them to participate actively in hostilities.

26.       In Ground 4 of his Grounds of Appeal, Kondewa complained that the majority of the Trial Chamber erred in law in failing to establish the correct mens rea requirement for aiding and abetting and the determination of individual criminal responsibility pursuant to Article 6(1) for Counts 2, 4, and 7 in Tongo Fields and in Ground 6 that the Majority of the Trial Chamber erred in law in entering cumulative convictions under Count 7 as well as under Counts 2 to 5.

27.       The Prosecution by its Grounds of Appeal complained that the Trial Chamber erred in law and in fact in holding as follows: first, that “the evidence adduced does not prove beyond a reasonable doubt that the civilian population was the primary object of the attack” (Ground 1); second, that the evidence adduced did not establish beyond reasonable doubt: (i) that Fofana and Kondewa bear individual criminal responsibility under Article 6(1) of the Statute for the planning, instigating or otherwise aiding and abetting in the planning, preparation or execution of any of the criminal acts which the Trial Chamber found were committed in Kenema District (Ground 3), and in the towns of Tongo Field, Koribondo and Bo District (Ground 4) during the timeframe charged in the Indictment; (ii) that Fofana and Kondewa bear individual criminal responsibility under Article 6(3) of the Statute for those crimes committed in Kenema District (Ground 3); and (iii) that Fofana planned, ordered or committed the crime of enlisting children under 15 years of age into armed forces or groups, or their active use in hostilities and his individual criminal responsibility pursuant to Article 6(3) of the Statute as a superior for the enlistment or use of child soldiers to participate actively in hostilities (Ground 5).

28.       The Prosecution further alleged a number of errors of law and of fact: (i) in relation to the Trial Chamber’s acquittal of Fofana and Kondewa (on Count 6) of terrorism as a war crime (Ground 6) and (ii) in refusing to consider acts of burning for the purposes of the war crime of pillage as charged under Count 5 of the Indictment (Ground 7).

29.       In Grounds 8 and 9 the Prosecution alleged mixed errors of law and fact and of procedure, respectively, in that the Trial Chamber denied leave for the Prosecution to amend the Indictment in order to add four new counts of sexual violence (Ground 8)  and in preventing the Prosecution from “leading, eliciting or adducing” evidence of sexual violence (Ground 9). 

30.       Finally, in its Ground 10, the Prosecution, in respect of its appeal against sentence, complained that the Trial Chamber erred in law and in fact and committed a procedural error, “in that there has been a discernible error in the exercise of the Trial Chamber’s sentencing discretion” in the sentencing of Fofana and Kondewa.

D.   Some Guiding Principles on Appellate Review

31.       Before the Appeals Chamber embarks on a detailed consideration of the Parties’ Grounds of Appeal, it is expedient to state at the threshold, albeit in general terms, some of the principles of appellate review that will guide it.

32.       In regard to errors of law: On appeal, pursuant to Article 20 of the Statute and Rule 106 of the Rules of Procedure and Evidence (“Rules”),[60] only arguments relating to errors in law that invalidate the decision of the Trial Chamber would merit consideration.  Some International Criminal Tribunals hold the view that in exceptional circumstances, the Appeals Chamber may consider legal issues raised by a party or proprio motu although such may not lead to the invalidation of the judgment if it is nevertheless of general significance to the Tribunal’s jurisprudence.[61]

33.       In regard to errors of fact: On appeal where errors of fact are alleged also pursuant to Article 20 of the Statute and Rule 106 of the Rules, the Appeals Chamber will not lightly overturn findings of fact reached by a Trial Chamber.  Where it is alleged that the Trial Chamber committed an error of fact, the Appeals Chamber will give a margin of deference to the Trial Chamber that received the evidence at trial.  This is because it is the Trial Chamber that is best placed to assess the evidence, including the demeanour of witnesses.  The Appeals Chamber will only interfere in those findings where no reasonable trier of fact could have reached the same finding or where the finding is wholly erroneous.[62]  The Appeals Chamber applies the same reasonableness standard to alleged errors of fact regardless of whether the finding of fact was based on direct or circumstantial evidence.[63]

34.       The Appeals Chamber adopts the statement of general principle contained in the ICTY Appeals Chamber decision in Kupreškić, as follows:

“. . . the task of hearing, assessing and weighing the evidence presented at trial is left primarily to the Trial Chamber. Thus, the Appeals Chamber must give a margin of deference to a finding of fact reached by a Trial Chamber.  Only where the evidence relied on by the Trial Chamber could not have been accepted by any reasonable tribunal of fact or where the evaluation of the evidence is wholly erroneous may the Appeals Chamber substitute its own finding for that of the Trial Chamber.”[64]

35.       In regard to procedural errors: Although not expressly so stated in Article 20 of the Statute, not all procedural errors vitiate the proceedings.  Only errors that occasion a miscarriage of justice would vitiate the proceedings.  Such are procedural errors that would affect the fairness of the trial.  By the same token, procedural errors that could be corrected or waived or ignored (as immaterial or inconsequential) without injustice to the parties would not be regarded as procedural errors occasioning a miscarriage of justice.

36.       In regard to appellate review of the exercise of discretionary powers by the Trial Chamber: The guiding principles can be succinctly stated.  The Trial Chamber’s exercise of discretion will be overturned if the challenged decision was based: (i) on an error of law; or (ii) on a patently incorrect conclusion of fact; or (iii) if the exercise of discretion was so unfair or unreasonable as to constitute an abuse of the Trial Chamber’s discretion.  The scope of appellate review of discretion is, thus, much limited: even if the Appeals Chamber does not agree with the impugned decision, it will stand unless it was so unreasonable as to force the conclusion that the Trial Chamber failed to exercise its discretion judiciously.[65]  Where the issue on appeal is whether the Trial Chamber correctly exercised its discretion in reaching its decision the Appeals Chamber will only disturb the decision if an appellant has demonstrated that the Trial Chamber made a discernible error in the exercise of discretion.[66]  A Trial Chamber would have made a discernible error if it misdirected itself as to the legal principle or law to be applied, took irrelevant factors into consideration, failed to consider relevant factors or failed to give them sufficient weight, or made an error as to the facts upon which it has exercised its discretion.[67]

II.   ISSUES arising IN both appeals

A.   Prosecution’s Third and Fourth Grounds of Appeal and Kondewa’s Fourth Ground of Appeal: Individual Criminal Responsibility Pursuant to Article 6(1) of the Statute

1.   Introduction

37.       The Prosecution’s Third and Fourth Grounds of Appeal and Kondewa’s Fourth Ground of Appeal concern the individual criminal responsibility of Fofana and Kondewa pursuant to Article 6(1) of the Statute for crimes in Tongo Town, Koribondo, Bo District and Kenema District in January and February 1998.  As these grounds of appeal are interrelated, the Appeals Chamber will consider them together with more detailed accounts of the respective submissions in the following subsections.

38.       In relation to the second attack in early January 1998 and the third attack on 14 February 1998 on Tongo Town, the majority of the Trial Chamber, Justice Thompson dissenting, found Fofana and Kondewa guilty pursuant to Article 6(1) of the Statute of aiding and abetting violence to life, health and physical or mental well-being of persons, in particular murder and cruel treatment, punishable under Article 3.a. of the Statute (Counts 2 and 4, respectively) as well as collective punishments, a violation of Article 3 common to the Geneva Conventions and of Additional Protocol II, punishable under Article 3.b. of the Statute (Count 7).[68] 

39.       In Kondewa’s Fourth Ground of Appeal, he submits that the majority of the Trial Chamber erred in finding him responsible for aiding and abetting the crimes committed during the second and third attacks on Tongo Town.[69]  The Prosecution, on the other hand, argues in its Fourth Ground of Appeal that, with regard to the crimes committed in Tongo, the Trial Chamber erred in not finding Kondewa responsible for instigating[70] and in not finding Fofana responsible for instigating and planning.[71] 

40.       In relation to the attacks on Koribondo on 13 February 1998, and on Bo District on 15 February 1998, the Trial Chamber found that the Kamajors had committed violence to life, health and physical or mental well-being of persons, in particular murder and cruel treatment, punishable under Article 3.a. of the Statute (Counts 2 and 4, respectively) as well as collective punishments, a violation of Article 3 common to the Geneva Conventions and of Additional Protocol II, punishable under Article 3.b. of the Statute (Count 7).[72]  The Trial Chamber additionally found the commission of pillage (Count 5) by the Kamajors during the attack on Bo District.[73]  The majority of the Trial Chamber, Justice Thompson dissenting, found Fofana responsible as a superior pursuant to Article 6(3) in relation to the attacks in Koribondo and Bo District.[74]  The Trial Chamber, however, acquitted Kondewa under Article 6(1) and Article 6(3) in relation to the attacks on Koribondo and Bo District.[75]  In relation to the attack on Kenema District on 15 February 1998, the Trial Chamber found that criminal acts had been committed by the Kamajors without specifying which crimes these acts constituted[76] and acquitted Fofana and Kondewa.[77]

41.       In its Third and Fourth Grounds of Appeal, the Prosecution submits that, subsequent to the attacks on Tongo, the attacks on Koribondo, Bo District and Kenema District in mid-February 1998 were all part of the same planned “all-out offensive.”[78]  The Prosecution, therefore, submits that the Trial Chamber erred in not finding Fofana liable for planning the crimes committed in Koribondo, Bo District and Kenema District,[79] or, in the alternative, for aiding and abetting the crimes committed in those locations.[80] 

2.   Preliminary Issue: Scope of the Prosecution’s Appeal

42.       The Appeals Chamber notes that the Prosecution argues that the attacks in Bonthe District were part of the same “all-out offensive,” but does not submit that the Trial Chamber erred in not finding Fofana liable for planning the crimes committed in Bonthe District.[81]  The Prosecution only generally states that “the only conclusion open to any reasonable trier of fact is that the attacks on Koribondo, Bo District, Kenema District and Bonthe District, which all occurred around the same time . . . were all part of the same all-out offensive announced by Norman at the January 1998 Passing Out Parade.”[82]  The Prosecution also stated that “the only conclusion open to any reasonable trier of fact is that it was part of the plan that crimes would be committed during the attacks on Kenema and Bonthe” and that “no reasonable trier of fact could conclude that commission of crimes was planned in the case of Koribondo and Bo District, but somehow spontaneous and unplanned in the case of Kenema and Bonthe District.”[83]  Because the Prosecution’s concluding arguments include no mention of Bonthe District, the Appeals Chamber finds that the Prosecution has not met its burden of advancing the reasons for the alleged error and the Appeals Chamber will therefore not examine whether the Trial Chamber erred in relation to Bonthe District.[84]

3.   Liability for Crimes Committed in Tongo Town 

(a)   The Findings of the Trial Chamber

43.       The Trial Chamber found that the Kamajors launched three attacks on Tongo Town.[85]  The first attack was in late November or early December 1997.[86]  Between 10-12 December 1997, a passing out parade was held at Base Zero, the headquarters of the CDF High Command (“First Passing Out Parade”).[87]  Norman, who was the National Coordinator for the CDF, spoke to the Kamajors and commanders,[88] and both Fofana and Kondewa attended this parade.[89]  Norman said that “the attack on Tongo will determine who the winner or the looser of the war would be”[90] and that “there is no place to keep captured or war prisoners like the juntas, let alone their collaborators.”[91]  Norman further said that [if] the international community is condemning human rights abuses [] then I take care of the human left abuses,’”[92] which he clarified to mean that “[] any junta you capture, instead of wasting your bullet, chop off his left [hand] as an indelible mark […] to be a signal to any group that will want to seize power through the barrels [sic] of the gun and not the ballot paper [;] [w]e are in Africa, we want to practice democracy.[93]   The Trial Chamber found that he instructed and encouraged the Kamajors to kill captured enemy combatants and “collaborators,” to inflict physical suffering or injury upon them and to destroy their houses.[94] 

44.       After Norman instructed the Kamajors to commit unlawful acts, Fofana, as Director of War, addressed the fighters, saying “[n]ow, you’ve heard the National Coordinator . . . any commander failing to perform accordingly and losing your own ground, just decide to kill yourself there and don’t come to report to us.”[95]

45.       Further, following the speeches of Norman and Fofana, Kondewa spoke to the Kamajors and said “a rebel is a rebel; surrendered, not surrendered, they’re all rebels […t]he time for their surrender had long since been exhausted, so we don’t need any surrendered rebel.”  He then said “I give you my blessings; go my boys, go.”[96] 

46.       Following the First Passing Out Parade, Norman held a commanders’ meeting in the same month at which plans to attack Tongo Town were discussed and at which Norman provided further instructions for the Tongo and Black December operations.[97]  Those present at this meeting included Fofana, Kondewa, Mohamed Orinco Moosa (the National Deputy Director of War), Albert J. Nallo (Deputy National Director of Operations and Director of Operations, Southern Region), KG Samai, Ngobeh (the district grand Kamajor commander), and some commanders from the Tongo area, such as Musa Junisa, Witness TF2-079, Vandi Songo and some members of the War Council.[98]  At the meeting, Norman further reiterated and clarified his orders and expanded upon them to include looting.[99]  He repeated that whoever took Tongo would win the war and that it should be taken at all costs.  Norman told them not to spare anyone working with or mining for the juntas.  Norman also said that all collaborators should forfeit their properties and be killed.[100]  Everyone in the meeting contributed to the discussion, including Fofana and Kondewa.[101]  Norman then ordered Fofana to provide logistics for the operation.[102] 

(b)   Fofana

(i)   The Prosecution’s Fourth Ground of Appeal: Instigation
a.   Submissions of the Parties

47.       The Prosecution submits that the Trial Chamber erred in finding that the elements of instigating were not satisfied on the part of Fofana for the crimes committed during the second and third attacks on Tongo Town, and that the full responsibility of Fofana was therefore not reflected.[103]  The Prosecution submits that in finding that Fofana’s speech had a substantial effect on the commission of the crimes, the Trial Chamber effectively found that the actus reus for instigating was satisfied.[104]  Further, the Prosecution submits that in the context of Fofana’s seniority at Base Zero as part of what was referred to as the “Holy Trinity,” his statement that any commander failing to perform according to Norman’s instructions should kill himself and not report to Base Zero,[105] could only be understood as a direct threat to the Kamajors that they would face death or other serious consequences if they failed to carry out Norman’s orders.[106]

48.       With regard to the mens rea required for instigating, the Prosecution submits that Fofana’s intent or knowledge that crimes would likely be committed may be inferred from his substantial contribution to the planning, which was done with knowledge of the crimes which Norman had ordered in the execution of their plan.[107]  The Prosecution further argues that based on Fofana’s speech at the December 1997 Passing Out Parade, which the Trial Chamber found to have encouraged the killing of civilians by the Kamajors, it may be inferred that Fofana acted with direct intent.[108]

49.       Fofana submits that the actus reus required for aiding and abetting is different from that of instigation and that the Prosecution’s arguments are therefore misleading.[109]  He further submits that the Trial Chamber found that in order to prove the actus reus of instigation “a causal relationship between the instigation and the perpetration must be demonstrated.”[110]  Thus, for an aider and abetter to be convicted of instigation, his instigation must lead to the perpetration of the crime, and may not merely have a substantial effect on its outcome.[111]

50.       Fofana, therefore, asserts that none of the factual findings referred to by the Prosecution establishes a direct causal link between Fofana’s conduct and the crimes found by the Trial Chamber to have been perpetrated in Tongo Town.[112]  Nothing in Fofana’s speech at the First Passing Out Parade in December 1997 could have demonstrated his intent to provoke or induce the commission of the crimes outlined by the Prosecution,[113] or could have been understood by the Kamajors as a direct threat that they would face death or other serious consequences if they failed to carry out Norman’s orders.[114]  Thus, Fofana submits that “it is not the case that the only inference that can be drawn from the circumstances is that Fofana induced or provoked the Kamajors to commit crimes.”[115]  The more probable inference is that he encouraged the Kamajors to fight and capture Tongo Town.[116]

b.   Discussion

51.       The Trial Chamber held that the actus reus of instigating requires “an act or omission, covering both express and implied conduct of the Accused, which is shown to be a factor substantially contributing to the conduct of another person committing the crime,”[117] and that there must be a “causal relationship between the instigation and the perpetration of the crime . . . although it is not necessary to prove that the crime would not have occurred without the Accused’s involvement.”[118]  The Trial Chamber also held that the mens rea of instigating is an intention “to provoke or induce the commission of the crime,” or a “reasonable knowledge that a crime would likely be committed as a result of that instigation.”[119]  Neither of the parties takes issue with the Trial Chamber’s definition of instigation. 

52.       The Trial Chamber found that Fofana’s speech at the First Passing Out Parade substantially contributed to the commission of crimes by the Kamajors in Tongo Town and thereby satisfied the actus reus of aiding and abetting.  The parties have not challenged this finding.  Both aiding and abetting and instigating require the actus reus to have a substantial effect on the perpetration of the crime. 

53.       The Trial Chamber concluded that Fofana’s actions had a substantial effect on the perpetration of these crimes.[120]  The Trial Chamber found that “Fofana’s speech at the [first] passing out parade constitutes aiding and abetting only of the preparation [sic][121] of those criminal acts which were explicitly ordered by Norman, namely, killing of captured enemy combatants and ‘collaborators’, infliction of physical suffering or injury upon them and destruction of their houses.”[122] 

54.       The Prosecution argues that because the actus reus of aiding and abetting is satisfied, the actus reus is also satisfied for instigating.  However, the Trial Chamber found, relying on ICTY Appeals Chamber jurisprudence, that unlike the actus reus of instigating, the actus reus of aiding and abetting does not require a causal link between the act of aiding and abetting and the commission of the crime.[123]  The Appeals Chamber holds that the actus reus of instigating requires a causal link which aiding and abetting does not and accordingly disagrees with the Prosecution’s proposition. 

55.       Fofana’s speech at the First Passing Out Parade at Base Zero was removed both temporally and geographically from the unlawful acts committed by the Kamajors in Tongo Town in January 1998.  This alone would not be enough to deny a causal link between the speech and the crimes alleged.  However, in this case the Appeals Chamber is of the view that there is insufficient evidence to show how Fofana’s words influenced the perpetration of crimes which took place at a significantly different place and time.  Fofana’s speech may have substantially contributed to the military effort, but not to the crimes as such.  Therefore, the Appeals Chamber is satisfied that the Trial Chamber was not in error in finding that Fofana’s speech did not have a substantial effect on the perpetration of the crimes or that a causal relationship did not exist and that the actus reus for instigating was, consequently, not satisfied. 

56.       With regard to the mens rea required for “instigating,” the Prosecution submits that Fofana’s intent or knowledge that crimes would likely be committed may be inferred from his substantial contribution to the planning, which was done with knowledge of the crimes which Norman had ordered in the execution of the plan.  Fofana’s words “[n]ow you’ve heard the National Coordinator [. . . ] any commander failing to perform accordingly and losing your own ground, just decide to kill yourself there and don’t come to report to us” are ambiguous and may be interpreted not as approving Norman’s unlawful orders, but rather as an appeal to each of the commanders to fight hard and not loose his ground.  Further, Fofana’s call “to destroy the soldiers finally from where they were [. . .] settled”[124] was directed at the military campaign and does not include any incitement to perpetrate unlawful acts.  This leads the Appeals Chamber to conclude that there were other possible interpretations of the evidence than the one suggested by the Prosecution.  The Appeals Chamber, therefore, finds that a reasonable trier of fact could have found that Fofana did not have the requisite mens rea.

57.       Consequently, the Appeals Chamber finds that the Trial Chamber did not err in failing to convict Fofana for instigating the commission of crimes in Tongo Town.  The Prosecution’s Fourth Ground of Appeal, therefore, fails in this respect.

(ii)   The Prosecution’s Fourth Ground of Appeal: Planning
a.   Submissions of the Parties

58.       The Prosecution does not take issue with the Trial Chamber’s pronouncement on the law on planning, and submits that because planning may be undertaken by one or more persons, an accused does not have to have been responsible for all of the planning.[125]  The Prosecution notes that the Trial Chamber found that “in the absence of any evidence showing how Fofana contributed to the discussion and decision at th[e] meeting [. . . ] there is no evidence to prove beyond reasonable doubt”[126] that Fofana planned the commission of the crimes.[127]  The Prosecution submits that the Trial Chamber erroneously suggested that an accused can only be convicted of planning where there is direct evidence of the specific contribution that the accused made to the plan in question.[128]  The Prosecution argues that even if the details of an accused’s specific contribution to planning is unknown, the accused may still satisfy the actus reus for planning if the evidence shows that the accused participated substantially in the planning of the crimes, and that the planning substantially contributed to the criminal conduct.[129] 

59.       In this case, the Prosecution submits that given Fofana’s “seniority as one of the top three figures at Base Zero, and given his express responsibility as Director of War for the planning of operations, no reasonable trier of fact could have concluded that Fofana may have been only a passive participant at all of these meetings.”[130]  The Prosecution also asserts that no reasonable trier of fact could have failed to infer that Fofana possessed the requisite mens rea for instigating and that he made a substantial contribution to planning “in the very clear knowledge” that the crimes which Norman had ordered were to be committed in the execution of the plan.[131]

60.       Fofana submits that throughout the trial the Prosecution adduced no evidence to prove beyond reasonable doubt that he planned the crimes.[132]  Fofana claims that on appeal the Prosecution now seeks to prove that he planned these crimes by circumstantial evidence.[133] However, he argues that there is no evidence showing the specifics of what was discussed at the meetings or of whether the planning of the attacks was part of the agenda of the meetings, especially given that the Trial Chamber held that there was no evidence to show, what, if any, contribution Fofana made at these meetings.[134]  Fofana argues that his role as a key element of the CDF leadership structure does not necessarily indicate that he was involved in the planning or execution of criminal activities.[135]  In addition, Fofana argues that “knowledge of crimes committed later by the Kamajors cannot be imputed to [him] by reference.”[136]

b.   Discussion

61.       Regarding the requisite actus reus, given the absence of factual findings by the Trial Chamber concerning the nature of Fofana’s participation in the commanders’ meetings in December 1997, the Appeals Chamber finds that it was open to a reasonable trier of fact to conclude that evidence of Fofana’s presence did not by itself amount to planning.  Although Fofana participated in these commanders’ meetings and held a position of responsibility as Director of War, it was open to a reasonable trier of fact to conclude that this evidence alone did not prove beyond reasonable doubt that he participated in the planning of the criminal conduct which took place in Tongo Town. 

62.       Regarding the requisite mens rea, the Trial Chamber found that Fofana participated in the commanders’ meetings.  However, the Appeals Chamber notes that the findings did not indicate that he participated at those meetings in the planning of unlawful acts rather than in the successful completion of military operations. 

63.       The Appeals Chamber therefore, concludes that the evidence did not disclose beyond reasonable doubt that Fofana possessed the requisite mens rea for planning violence to life, health and physical or mental well-being of persons, in particular murder, punishable under Article 3.a. of the Statute, violence to life, health and physical or mental well-being of persons, in particular cruel treatment, punishable under Article 3.a. of the Statute as well as collective punishments, a violation of Article 3 common to the Geneva Conventions and of Additional Protocol II, punishable under Article 3.b. of the Statute.

64.       The Appeals Chamber finds that in this respect, the Prosecution’s Fourth Ground of Appeal must fail.

(c)   Kondewa

(i)   Kondewa’s Fourth Ground of Appeal: Aiding and Abetting
a.   Submissions of the Parties

65.       In Kondewa’s Fourth Ground of Appeal, he submits that the majority of the Trial Chamber, Justice Thompson dissenting, erred in law in finding that the evidence fulfilled the mens rea and actus reus for aiding and abetting the crimes of violence to life, health and physical or mental well-being of persons, in particular murder and cruel treatment, punishable under Article 3.a. of the Statute (Counts 2 and 4, respectively) as well as collective punishments, a violation of Article 3 common to the Geneva Conventions and of Additional Protocol II, punishable under Article 3.b. of the Statute (Count 7) in Tongo Town.[137]  Regarding the requisite actus reus, Kondewa argues that his statement at the First Passing Out Parade that “a rebel is a rebel; surrendered, not surrendered, they’re all rebels . . . [t]he time for their surrender had long since been exhausted, so we don’t need any surrendered rebel” did not have a ‘substantial effect’ on the perpetration of crimes, as required by the legal standard set forth by the Trial Chamber.[138]  Kondewa does not take issue with the legal standard,[139] but instead submits that according to the jurisprudence of the ICTY and the ICTR, his words fell short of the “substantial effect standard” under which acts of aiding and abetting must have a substantial effect upon the perpetration of a crime.[140]  Kondewa submits that it is unreasonable to suggest that his “words alone had a substantial effect on the perpetration of crimes that took place more than one month later in another geographic area.”[141]

66.       Regarding the requisite mens rea, Kondewa argues that the Trial Chamber erred in finding that he was aware that his words would assist in the commission of subsequent crimes in Tongo and that he knew of previous criminal activity by the Kamajors in Tongo.[142]  Kondewa argues that the Trial Chamber adopted an approach to requisite standards relating to knowledge which is less strict than that of the other ad hoc Tribunals.[143]  Kondewa further argues that in establishing the requisite mens rea, the Trial Chamber erroneously found that Kondewa knew of the Kamajors’ previous criminal conduct based on a report sent to Base Zero, even though the Trial Chamber had found elsewhere in the Trial Judgment that this report was only given to Norman and Fofana and not to Kondewa.[144]  Kondewa submits that he never received this report and there was no other evidence demonstrating his knowledge of previous criminal activity by the Kamajors in Tongo.[145]  Therefore, Kondewa submits that no reasonable trier of fact could have found that the mens rea was established.[146]  

67.       In its response brief, the Prosecution submits that the Trial Chamber’s finding regarding Kondewa’s actus reus was based not on his words alone, but on the facts and circumstances of the case as a whole.[147]  The Prosecution argues that the Trial Chamber’s finding was based on its evaluation of the effect of those words on the perpetrators in the context of Kondewa’s influence over the Kamajors, particularly given his position as one in what was referred to as the “Holy Trinity.”[148] 

68.       It further submits that the case law of the Appeals Chambers of ICTY and ICTR provides legal precedent for finding that words of encouragement made by an accused before the commission of a crime and at a place remote from the crimes, may have a “substantial effect.”[149]  Further, the ICTR cases referred to by Kondewa are not helpful because they are primarily Trial Chamber judgments relating to direct and public incitement to commit genocide and complicity in genocide, which are modes of liability distinct from aiding and abetting.[150]

69.       Finally, the Prosecution argues that Kondewa’s mens rea can be deduced not only from his knowledge of crimes previously committed by the Kamajors, but also from Norman’s unlawful instructions at the First Passing Out Parade.[151]  It argues that on the basis of the knowledge of Norman’s instructions alone, a reasonable trier of fact could conclude that Kondewa knew that the Kamajors would probably commit crimes during their attacks on Tongo Town.[152] 

b.   Discussion

70.       Kondewa submits that the Trial Chamber committed an error of law.  However, he states that he agrees with the legal requirements of aiding and abetting found by the Trial Chamber.  Further, he agrees that the applicable standard for actus reus is that of “substantial effect.”  His challenge is therefore not directed at the legal standard as such but rather at the Trial Chamber’s application of the facts.[153]  The Appeals Chamber, therefore, is of the view that Kondewa raises an error of fact rather than law, and his arguments will be considered in this context. 

71.       Although not specifically raised in this appeal, the Appeals Chamber is of the view that it is necessary to determine whether, as a matter of law, words of encouragement and support may have a “substantial effect” even though they were spoken at a time and place that are temporally and geographically removed from the commission of the crimes.  The Trial Chamber held that the actus reus of aiding and abetting may occur before, during, or after the perpetration of the crime and at a location geographically removed from the place where the crime is committed, if the act of the aider and abetter has a substantial effect on the perpetration of the crime.[154]  In this regard, the Trial Chamber relied on the ICTY Appeals Chamber decision in Blaškić which found that the acts of aiding and abetting “may occur before, during, or after the principal crime has been perpetrated, and that the location at which the actus reus takes place may be removed from the location of the principal crime.”[155]  Further, it is recognized in the jurisprudence of other ad hoc Tribunals that “encouragement” and “moral support” are two forms of conduct which may lead to criminal responsibility for aiding and abetting a crime.[156] 

72.       The Appeals Chamber agrees that “encouragement” and “moral support” may constitute the actus reus and that acts of aiding and abetting can be made at a time and place removed from the actual crime. 

73.       In regard to the actus reus for aiding and abetting, the Trial Chamber found that Kondewa’s speech at the First Passing Out Parade had a substantial effect on the perpetration of the crimes in Tongo.[157]  The Appeals Chamber recalls that the Trial Chamber found that at the First Passing Out Parade Norman instructed the Kamajors “to kill captured enemy combatants and ‘collaborators’ to inflict physical suffering or injury upon them and to destroy their houses.”[158] After Norman and Fofana spoke “all the fighters looked at Kondewa, admiring him as a man with mystic powers, and he made the last comment saying that the time for surrender of the rebels had long been exhausted and that they did not need any surrendered rebels.”[159]  The Trial Chamber then found that in uttering these words Kondewa effectively supported Norman’s instructions and encouraged the Kamajors to execute Norman’s unlawful orders.[160]  The Trial Chamber also noted that no fighter would go to war without Kondewa’s blessing because they believed that Kondewa transferred his mystical powers to commit such acts.[161]

74.       In addition to his spiritual responsibilities, Kondewa was, together with Norman and Fofana, the three people regarded as what was referred to as the “Holy Trinity” at Base Zero; the three of them were the key and essential components of the leadership structure[162] and were the three people who according to the Trial Chamber actually made the decisions and nobody could make a decision in their absence.[163]

75.       Even though the First Passing Out Parade in December 1997 was temporally and geographically removed from the second and third attacks on Tongo Town, the Appeals Chamber observes that one of the purposes of the Passing Out Parade was for Norman to give instructions to the Kamajors for the second and third attacks on Tongo Town,[164] not just instructions concerning unlawful acts.  For this reason temporal and geographic remoteness is not of significance to the question of whether Kondewa’s speech substantially contributed to the perpetration of the crimes. Thus, in the light of all the circumstances of this case, a reasonable trier of fact could have concluded that the only inference available on the evidence was that through his blessings and speech at the First Passing Out Parade Kondewa substantially contributed to the perpetration of the crimes in Tongo Town.

76.       Regarding the requisite mens rea, the Appeals Chamber agrees with Kondewa that the Trial Chamber erroneously relied on the fact that he had received the report to Base Zero of the Kamajors’ previous crimes in Tongo.  On the contrary, the Trial Chamber found that Norman and Fofana received this report, not Kondewa.[165]  Thus, the Appeals Chamber finds that the Trial Chamber erred in fact in relying on this report.[166] 

77.       It is the unchallenged finding of the Trial Chamber, that Norman at the Passing Out Parade ordered the Kamajors to commit criminal acts in Tongo, and that Kondewa who spoke after Norman, knew of the orders of Norman when he said: “a rebel is a rebel; surrendered, not surrendered, they’re all rebels . . . [t]he time for their surrender had long since been exhausted, so we don’t need any surrendered rebel … I give you my blessings; go my boys, go.”[167]  The Trial Chamber further found that “no fighter would go to war without Kondewa’s blessings because they believed that Kondewa transferred his mystical powers to them and made them immune to bullets.”[168]

78.       On these findings the Appeals Chamber is satisfied that it was reasonable for the Trial Chamber to conclude that Kondewa by his words of encouragement aided and abetted the commission of criminal acts ordered by Norman in Tongo.

79.       The Appeals Chamber therefore concludes, Justice King dissenting, that the Trial Chamber did not err in finding Kondewa responsible for aiding and abetting the commission of crimes in Tongo Town.  The Appeals Chamber accordingly finds, Justice King dissenting, that Kondewa’s Fourth Ground of Appeal must fail and upholds his conviction in relation to violence to life, health and physical or mental well-being of persons, in particular murder and cruel treatment punishable under Article 3.a. of the Statute (Counts 2 and 4, respectively). 

 

(ii)   Prosecution’s Fourth Ground of Appeal: Instigation
a.   Submissions of the Parties

80.       The Prosecution submits that in finding that the elements of instigating were not satisfied, the Trial Chamber erred in fact and in law in its approach to the evaluation of the evidence concerning Kondewa’s involvement in the crimes committed in Tongo Town.[169]  The Prosecution argues that the actus reus of instigating has effectively been satisfied due to the Trial Chamber’s finding that the actus reus of aiding abetting was satisfied because “Kondewa’s words had a substantial effect on the perpetration of those criminal acts.”[170] 

81.       Regarding the requisite mens rea, the Prosecution asserts that based on evidence accepted by the Trial Chamber, the only conclusion open to any reasonable trier of fact is that Kondewa had the necessary mens rea for instigating.[171]  The Prosecution specifically points to the Trial Chamber’s finding that Kondewa expressly encouraged the crimes,[172] and argues that on occasions prior to the First Passing Out Parade, Kondewa threatened others, including members of the War Council, who accused the Kamajors of committing crimes.[173]  In addition, while at Base Zero, Kondewa personally killed a civilian and ordered the killing of another civilian.[174]  The Prosecution submits that although this evidence is not directly related to Tongo, it shows that Kondewa supported or advocated the crimes committed by the Kamajors in Tongo.[175]

82.       Kondewa responds that he is not liable for instigating because a causal connection has not been shown between his speech at the First Passing Out Parade and the crimes committed in Tongo.[176]  He submits that the Prosecution incorrectly stated: that the actus reus of instigating and aiding and abetting is the same;[177] that the actus reus of these forms of liability is different because proof of a cause-effect relationship is necessary for instigating but not for aiding and abetting;[178] that there is no evidence that the Kamajors who were present at the First Passing Out Parade were the same Kamajors who subsequently committed crimes in Tongo Town;[179] and finally that there is no evidence that any Kamajor was prompted to commit any crime on the basis of his ambiguously phrased words, which he uttered six weeks earlier.[180] 

b.   Discussion

83.       The Trial Chamber’s statement of the elements of the actus reus and the mens rea of instigating has already been noted in paragraph 51.

84.       The Trial Chamber found Kondewa’s speech at the First Passing Out Parade to have had a substantial effect on the perpetration of crimes in Tongo Town and thereby satisfied the actus reus of aiding and abetting.  Both aiding and abetting and instigating require the actus reus to have a substantial effect on the perpetration of the crime.  A finding that an accused’s conduct had a “substantial effect” for the purpose of aiding and abetting will therefore normally also satisfy the “substantial effect” requirement for the purpose of instigating.

85.       In this case, in order to show a causal link between Kondewa’s speech and the crimes committed in Tongo Town, the Prosecution must lead evidence to show that the Kamajors who were present at the First Passing Out Parade at which Kondewa’s speech was made were the same Kamajors who subsequently committed the crimes in Tongo Town.  There was no such evidence before the Trial Chamber.  For this reason the Appeals Chamber finds that “instigation” for the crimes charged in Tongo Town was not proved.

86.       Consequently, the Prosecution’s Fourth Ground of Appeal fails in this respect.

4.   Liability for Crimes in Koribondo, Bo District and Kenema District

(a)   The Findings of the Trial Chamber

87.       The Trial Chamber found that Norman, Fofana and Kondewa also addressed the Kamajors at a Second Passing Out Parade in early January 1998 regarding an “all-out offensive.”[181]  After thanking the Kamajors for the training they had undergone, and talking about the prior and pending operations, Norman said that he had given instructions for the pending operations which the Kamajors should follow.[182]  Norman also said that “whoever knows that he is used to fighting with the cutlass, it is time for him to take up the cutlass [; w]hoever knows that he’s used to fighting with a gun, it is time for him to take up the gun [; w]however knows that he’s used to fight with a stick, it is time to him to take up his stick.”[183]

88.       Fofana also gave a speech at this meeting, saying that:

“[T]the advice that Pa Norman had given to us, that the training that we underwent for a long time, the time has come for us to implement what we’ve learned.  Now that we have received the order that we shall attack the various areas where the juntas are located, they have done a lot for the trainees.  They’ve spent a lot on them.  So any commander, if you are given an area to launch an attack and you fail to accomplish that mission, do not return to Base Zero.”[184]

Fofana further told the fighters “to attack the villages where the juntas were located and ‘to destroy the soldiers finally from where they were . . . settled.’”[185]  Fofana also said that “the failure to take Koribondo was a ‘disgrace to the Kamajors that [sic] were [sic] close to Base Zero because . . . medicine that is given to Kamajors comes from there [and] [t]hat’s where they come from to attack Koribondo [sic] many [times].’”[186]  Finally, he said that “. . . this time around, he wants them to go and capture Koribondo.”[187]

89.       At the same meeting Kondewa spoke, saying “I am going to give you my blessings [… and] the medicines, which would make you to be fearless if you didn’t spoil the law.”[188]  Kondewa also said that “all of his powers had been transferred to them to protect them, so that no cutlass would strike them and that they should not be afraid.”[189]  After this passing out parade, Norman said that a commanders’ meeting would be held where he would reveal which operations were going to be undertaken.[190]

90.       In the evening of the same day as the passing out parade, Norman held a commanders’ meeting regarding Koribondo at which Fofana, Kondewa, Joe Tamidey and Bobor Tucker were present.[191]  At this meeting Norman said that “they should take Koribondo ‘at all costs’ because they had already spent a lot on Koribondo” and that “Koribondo had been attacked three or four times before without the CDF taking it.”[192]  Norman told the commanders that “when they got to Koribondo not to ‘leave any house or living thing there, except mosque, church, the barri and the school.’”[193]  He also said that “this time they should destroy or burn everything in the town and that anyone left in Koribondo should be termed an enemy or a rebel and killed since they had been forewarned of such consequences.”[194]

91.       On the same day as the Second Passing Out Parade and the commanders’ meeting regarding Koribondo, Norman held a second commanders’ meeting concerning Bo District.[195]  The meeting was attended by Fofana, Kondewa, the War Council and commanders such as James Kaillie, Battalion Commander from Bumpeh and Joseph Lappia, Deputy Battalion Commander from Bumpeh.[196]  In assigning the commander for the attack on Bo Town, Norman told the commanders to kill enemy combatants and people who had connections with or supported the rebels, otherwise known as “collaborators,” and to burn down houses and loot big shops.[197]  In preparation for the attack on Bo Town, Norman told the commanders to attack Kebi Town[198] and “to bring something back to prove that they had attacked Kebi Town.”  Fofana provided the commanders with arms, ammunitions and a vehicle.[199]

92.       Norman also met with Nallo, who had done all of the planning for the Koribondo attack and had submitted it to Fofana, the Director of War, who submitted it to Norman.  Norman stated that when Nallo goes to Koribondo anyone he met there should be killed because they were all spies and collaborators and “nothing should be left ‘not even a farm’ or ‘fowl.’”  Nallo was given petrol for the job.[200]  The Trial Chamber found that “[s]ome specific names were mentioned: Shekou Gbao, the driver, should be killed and his compound burnt because he was giving his vehicle to the juntas.”[201]  In addition, Norman told Nallo that “the house of Mike Lamin’s father was also to be burnt because Mike Lamin was RUF.”[202]  “Mr Biyo, a driver, should also have his compound burnt.”[203]

93.       Regarding Bo District, the Trial Chamber found that:

Norman told Nallo that he should loot the Southern Pharmacy and bring the medicines to Norman. He also told Nallo to kill Paramount Chief Veronica Bagni of Valunia chiefdom, because she was against the Kamajor movement; JK (Kpundoh) Boima III, Paramount Chief of Bo Kakua; Madam Tuma Alias, chairlady of Bo Town Council, because she used to collect [. . . ] market dues; Provincial Secretary Lansana Koroma; MB Sesay because he gave money to the juntas and prepared the ronko which the juntas wore so that they could not be differentiated from the Kamajors. MB Sesay should also have his house looted and burnt. Nallo was to kill Ali Fataba and burn his house because he was a collaborator who supplied fuel to the juntas. He should kill Cecil Hanciles for liaising between the juntas and the civilians. He was to kill Brima Tolli, if he saw him, and to burn his house and loot his property because the juntas ate and spent time at the house. Norman ordered Nallo to kill the police officers who used to work under the AFRC junta. Nallo carried out the orders as far as burning and looting but did not see most of the people. He would have killed them had he seen them because the law given by the National Coordinator was that if Kamajors did not follow their orders they would cut off your ear or kill you.”[204]

(b)   Fofana

(i)   The Prosecution’s Third and Fourth Grounds of Appeal: Planning
a.   Submissions of the Parties

94.       The Prosecution submits that the Trial Chamber erred in finding Fofana not liable for planning the unlawful acts committed during the attacks on Koribondo, Bo District and Kenema District.[205]  The Prosecution submits that

“the only conclusion open to any reasonable trier of fact on the findings of the Trial Chamber and the evidence accepted, is that the attacks on Koribondo, Bo District and Kenema District were part of the plan for the ‘all-out offensive’ announced at the January 1998 passing out parade, and that it was part of that plan that crimes would be committed in the course of that offensive (in particular, the killing of civilians considered or suspected of being ‘collaborators’ and the burning of their houses), and that the crimes were in fact perpetrated pursuant to that plan.”[206]

95.       The Prosecution argues that considering Fofana’s position of seniority at Base Zero and his express responsibility as Director of War for planning operations, no reasonable trier of fact could conclude that Fofana was only a passive participant at the commanders’ meetings.[207]   The Prosecution argues that given that Nallo, who initially did the planning, submitted the plan to Fofana who then submitted it to Norman, the only conclusion open to any reasonable trier of fact is that Fofana was an active participant at the commanders’ meetings.[208]  Thus, the Prosecution argues that “even if Fofana did not expressly plan the details of crimes to be committed in these attacks, he participated in the planning of attacks that he knew were to involve the commission of crimes.”[209]

96.       Fofana responds that his presence at the January 1998 commanders’ meetings did not constitute planning or aiding and abetting because there was no evidence of what took place at these meetings.[210]  In addition, evidence of his role and responsibilities within the CDF leadership does not establish his involvement in planning or aiding and abetting criminal activities.[211]  Fofana also responds that his provision of ammunition did not constitute aiding and abetting because the evidence does not demonstrate that the Kamajors used “exactly the same logistics that were supplied or provided” by him to attack Kebi Town.[212]

b.   Discussion

97.       Given the absence of factual findings by the Trial Chamber concerning the nature of Fofana’s participation in the January 1998 commanders’ meetings, the Appeals Chamber finds that it was open to a reasonable trier of fact to conclude that evidence of Fofana’s presence at these meetings does not amount to planning.[213]  Although Fofana attended these meetings and held a position of responsibility as Director of War, it was reasonable for the Trial Chamber to conclude that this evidence alone does not prove beyond reasonable doubt that Fofana designed the criminal conduct which took place in Koribondo, Bo District and Kenema District, or that his involvement in the planning process substantially contributed to the criminal conduct which occurred.  Furthermore, despite the Trial Chamber’s finding that Fofana provided commanders with arms, ammunition and a vehicle which were used by the Kamajors during their attack on Kebi Town, the Appeals Chamber finds that it was open to the Trial Chamber to conclude that Fofana’s provision of logistics for attacks in Bo District did not substantially contribute to the commission of criminal acts in Bo District.[214] 

98.       Thus, the Appeals Chamber finds that the Trial Chamber did not err in finding Fofana not liable for planning the commission of crimes in Koribondo, Bo District and Kenema District.  Therefore, the Appeals Chamber finds that in this respect, the Prosecution’s Third and Fourth Grounds of Appeal must fail.

(ii)   The Prosecution’s Third and Fourth Grounds of Appeal: Aiding and Abetting
a.   Submissions of the Parties

99.       The Prosecution submits that Fofana is liable for aiding and abetting because it may be inferred from his seniority and attendance at meetings that he “must also have encouraged or lent moral support to the planners and executors of the crimes committed in the attacks on Koribondo, Bo District and Kenema District.”[215]  The Prosecution further contends that no reasonable trier of fact could conclude that Fofana’s provision of logistics to launch military attacks on Kebi and Bo Towns did not have a substantial effect upon the perpetration of crimes.[216]

100.     Fofana responds in regard to his presence at the January 1998 commanders’ meeting as he had done to the allegation of planning.[217]

b.   Discussion

101.     In view of the Trial Chamber’s findings that Fofana’s speech at the January 1998 passing out parade did not amount to urging, encouraging or prompting the Kamajors to commit criminal acts, the Appeals Chamber holds that Fofana’s speech did not constitute aiding and abetting the commission of crimes in Koribondo, Bo District and Kenema District.[218]

102.     Furthermore, although Fofana was present at the January 1998 commanders’ meeting the Trial Chamber did not make any factual findings as to the nature of Fofana’s participation during these meetings.  The Appeals Chamber opines that Fofana’s mere presence at these meetings did not amount to aiding and abetting the criminal conduct which took place in Koribondo, Bo District and Kenema District.  Furthermore, in regard to the Trial Chamber’s finding that Fofana provided commanders with arms, ammunition and a vehicle prior to their attack on Kebi Town, the Appeals Chamber holds that Fofana’s provision of logistics is not sufficient to establish beyond reasonable doubt that he contributed as an aider and abetter to the commission of specific criminal acts in Bo District.[219] 

103.     Thus, The Appeals Chamber concludes that the Trial Chamber was correct in finding Fofana not liable for aiding and abetting the commission of crimes in Koribondo, Bo District and Kenema District.  Consequently, the Prosecution’s Third and Fourth Grounds of Appeal must fail.

(c)   Kondewa

(i)   The Prosecution’s Third and Fourth Grounds of Appeal: Aiding and Abetting
a.   Submissions of the Parties

104.     The Prosecution submits that given the Trial Chamber’s findings and the evidence it accepted, the only conclusion open to any reasonable trier of fact is that Kondewa aided and abetted the crimes committed in the attacks on Koribondo, Bo District and Kenema District.

105.     The Prosecution submits that considering Kondewa’s senior position within the CDF command structure, he together with Norman and Fofana was responsible for all of the planning and execution of the military operations.[220]  It was further submitted that by attending the first and second January 1998 commanders’ meetings where the attacks on Koribondo and Bo District were discussed and unlawful instructions were given by Norman, considering Kondewa’s senior position within the CDF command structure,[221] Kondewa gave encouragement and moral support to the planners of the attacks and the crimes, thereby aiding and abetting in the planning of the crimes in Koribondo and Bo District.[222]  The Prosecution submits that Kondewa, as High Priest, by initiating the Kamajors and giving them his blessing when they went into battle also gave encouragement and moral support to the Kamajors who committed crimes in Koribondo and Bo District.[223] 

106.     Further, the Prosecution argues that Kondewa similarly provided encouragement and support to the planners of the Kenema attack, as well as to the Kamajors who committed the attack, even though there were no express findings that Kondewa participated in meetings to plan the attack on Kenema.[224]  In support of this argument, the Prosecution points to the fact that Kondewa held a position of seniority at Base Zero, and that the attacks on Koribondo, Bo, Bonthe and Kenema were all part of a single “all-out offensive.”[225]

107.     The Prosecution submits that the only conclusion open to any reasonable trier of fact is that Kondewa provided encouragement and support to the planners of the Kenema attack, and to the Kamajors who committed crimes in the Kenema attack.[226]

108.     Kondewa submits that in view of the evidence accepted by the Trial Chamber and relied upon by the Prosecution in its appeal, “no reasonable trier of fact could conclude beyond reasonable doubt that Kondewa aided and abetted in the planning.”[227]  Kondewa argues that no reasonable trier of fact could conclude that his presence at the two January 1998 commanders’ meetings concerning the attacks on Koribondo and Bo District amounts to a substantial effect on the commission of the crimes.[228]  Kondewa argues that his mere presence at the December 1997 and January 1998 commanders’ meetings, in the absence of evidence that he did anything other than fulfil his role as High Priest by blessing the Kamajors, does not meet the evidential standard required to demonstrate aiding and abetting.  Kondewa submits that his senior position is irrelevant in the absence of any evidence demonstrating that he committed an act that had a substantial effect upon the commission of crimes.[229]

b.   Discussion

109.     The Trial Chamber found that Kondewa’s speech at the Second Passing Out Parade did not amount to urging, encouraging or prompting the Kamajors to commit criminal acts.[230]  In addition, there was an absence of a finding by the Trial Chamber concerning the nature of Kondewa’s participation in the January 1998 commanders’ meetings at which Norman gave orders for the commission of unlawful acts during the “all-out offensive.”[231]  The fact that Kondewa held a position of responsibility as High Priest and that he spoke at the Second Passing Out Parade and attended Commanders’ meetings is not sufficient to conclude that this evidence alone does prove beyond reasonable doubt that Kondewa encouraged or supported the criminal conduct which took place in Koribondo, Bo District and Kenema District.

110.     The Appeals Chamber agrees with the findings of the Trial Chamber that giving “words of moral support and encouragement to the Kamajor fighters who were about to conduct military operations on the junta-held territories”[232] or blessings, as well as providing medicine which the Kamajors believed would protect them against the bullets does not constitute aiding and abetting in the planning, preparation or execution of the criminal acts in Bo District.[233]

111.     The Appeals Chamber finds that the Trial Chamber was correct in finding Kondewa not liable for aiding and abetting the commission of crimes in Koribondo, Bo District and Kenema District.  Consequently, the Prosecution’s Third and Fourth Grounds of Appeal fail in this respect.

5.   Summary of Findings

112.     In relation to the attacks on Tongo, the Appeals Chamber, Justice King dissenting, upholds the Trial Chamber’s convictions of Kondewa and Fofana, pursuant to Article 6(1), of aiding and abetting violence to life, health and physical or mental well-being of persons, in particular murder and cruel treatment punishable under Article 3.a. of the Statute (Counts 2 and 4 respectively).

113.     In relation to the attacks on Koribondo, Bo District and Kenema District, the Appeals Chamber upholds the Trial Chamber’s acquittals of Kondewa and Fofana, pursuant to Article 6(1), of violence to life, health and physical or mental well-being of persons, in particular murder and cruel treatment, punishable under Article 3.a. of the Statute (Counts 2 and 4, respectively) as well as pillage, a violation of Article 3.a. common to the Geneva Conventions and of Additional Protocol II, punishable under Article 3.f. of the Statute (Count 5).

114.     The Appeals Chamber dismisses the Prosecution’s Third and Fourth Grounds of Appeal and dismisses, Justice King dissenting, Kondewa’s Fourth Ground of Appeal. 

B.   Prosecution’s Fifth Ground of Appeal and Kondewa’s Fifth Ground of Appeal: Enlisting Children Under the Age of 15 Years into an Armed Force or Group and/or Using Them to Participate Actively in Hostilities

1.   Introduction

115.     Kondewa, in his Fifth Ground of Appeal, contends that the majority of the Trial Chamber, Justice Thompson dissenting, erred in law and fact in finding him criminally responsible for “enlisting children under the age of 15 years into an armed force or group and/or using them to participate actively in hostilities,” an other serious violation of international humanitarian law punishable under Articles 4.c. and 6(1) of the Statute.[234] 

116.     On the other hand, the Prosecution, in its Fifth Ground of Appeal, submits that the Trial Chamber erred in failing to describe clearly the full extent of Kondewa’s responsibility,[235] because its finding related to Kondewa’s liability for enlistment only in respect of one child, namely Witness TF2-021.[236]  The Prosecution submits that Kondewa should be held responsible for committing, or alternatively aiding and abetting recruitment, by the enlistment and/or use, of children other than Witness TF2-021.[237]  With regard to Fofana the Prosecution submits that the Trial Chamber erred in acquitting him and avers that he should be held liable under Article 6(1) for aiding and abetting child recruitment.[238]

117.     Although the Grounds of Appeal raised by Kondewa and the Prosecution advance different arguments, they raise similar issues regarding the criminal responsibility of Fofana and Kondewa under Article 6(1) for child enlistment or the use of children to participate actively in hostilities.  Therefore, the Appeals Chamber will consider these Grounds together in this part of the Judgment. 

2.   The Findings of the Trial Chamber

118.     Concerning Fofana’s criminal responsibility under Article 6(1), the Trial Chamber found that the evidence adduced by the Prosecution did not establish beyond reasonable doubt that Fofana planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of child enlistment or use of children to participate actively in hostilities.[239]  The Trial Chamber’s reasoning was two fold.  First, Fofana’s mere presence at commanders’ meetings does not demonstrate that he encouraged anyone to make use of child soldiers or that he aided and abetted in the planning, preparation or execution of the crime.[240]  Second, Fofana’s presence at Base Zero, where child soldiers were present, is not sufficient by itself to establish that Fofana had any involvement in the commission of the crime.[241]  The Trial Chamber further held that evidence that the CDF as an organisation was involved in the recruitment of children and the use of them to participate actively in hostilities did not demonstrate that Fofana was personally involved in such crimes.[242]

119.     In finding Kondewa responsible under Article 6(1) of the Statute, the Trial Chamber relied on the evidence of Witness TF2-021 who testified that he and approximately 20 other young boys were initiated into the CDF, that they were given military training and that soon afterwards, initiates were sent into battle.[243]  The Trial Chamber found that the evidence is “absolutely clear” that on this occasion the initiates had taken the first step in becoming fighters.[244]  Consequently, the Trial Chamber found that when Kondewa was initiating the boys, he was also “performing an act analogous to enlisting them for active military service.”[245]  The Trial Chamber also found that Witness TF2-021 was eleven years old when Kondewa enlisted him and that Kondewa knew or had reasons to know that the boy was under fifteen years of age.[246]  The Trial Chamber further held that “[a]lthough the Chamber found this evidence entirely sufficient to establish enlistment beyond a reasonable doubt, [Witness] TF2-021 was given a second initiation, into the Avondo Society, headed by Kondewa himself, when he was thirteen years old.”[247] 

120.     The Trial Chamber decided not to consider evidence relating to Kondewa’s criminal liability for use of child soldiers because the Indictment charged use of child soldiers as an alternative to enlistment.[248]

3.   Kondewa’s Liability

(a)   The Prosecution’s Fifth Ground of Appeal: Whether the Trial Chamber’s Findings Reflect the Full Extent of Kondewa’s Liability

(i)   Submissions of the Parties

121.     In support of its submission, in respect to its Fifth Ground of Appeal, the Prosecution refers to the evidence of Witness TF2-021 that he was initiated into the CDF along with approximately 20 other young boys who were of the same age group as him.[249]  The Prosecution submits that based on the evidence of Witness TF2-021 the only reasonable inference which a reasonable trier of fact could make was that “at least some, if not all, of these other 20 boys . . . were under the age of 15.”[250]  The Prosecution supports its argument that no reasonable trier of fact could have concluded that Kondewa enlisted only one child by pointing to evidence that other children under 15 years were present at Base Zero and that they performed several roles there.[251]

122.     First, the Prosecution argues that the evidence clearly showed that the provision of initiation by Kondewa to under-aged children present at Base Zero was directly assisting the commission of the crime.  Kondewa specifically assisted, encouraged and supported the initiation of children, with the knowledge that his conduct would assist the enlistment and/or use of children.[252]  The Prosecution refers to the opinion of its Expert Witness TF2-EW2 that initiation was a stepping stone to recruitment as a soldier and the evidence of Witness TF2-014 that Kamajors went to war at an early age provided that they had been initiated.[253]  Second, the Prosecution argues that Kondewa encouraged the commission of enlistment by his speeches at the passing out parades in December 1997 and January 1998.[254]  The Prosecution submits that Kondewa’s encouragement is evident from the Trial Chamber’s finding that no Kamajor would go to war without Kondewa’s blessing.[255]  According to the Prosecution, Kondewa’s awareness that his conduct aided and abetted the commission of enlistment may be inferred from the Trial Chamber’s various findings, including Kondewa’s presence at commanders’ meetings at which Norman praised junior Kamajors.[256]

123.     Kondewa responds that the evidence on which he was found to be individually criminally responsible for the enlistment of one child was so flawed that it is impossible from that evidence to reach the further conclusion that he enlisted or aided and abetted the enlistment of more than one child.[257]  Kondewa submits that it is unclear how the evidence of Witnesses TF2-EW2 and TF2-014 demonstrates that initiations were a substantial contribution to the crime of enlistment.[258]  Kondewa further submits that the Prosecution’s argument concerning his liability for aiding and abetting child enlistment “fails primarily on the ambiguity of the testimony of Witness TF2-021 and the Trial Chamber’s own confusion as to its interpretation.”[259]

 

(ii)   Discussion

124.     The Prosecution submits that although the Trial Chamber found Kondewa responsible for enlisting Witness TF2-021, it was in error in not finding him responsible for enlisting and/or using other children.

125.     The Appeals Chamber is of the view that the crime of enlisting children under the age of 15 years into armed forces or groups and of using them to participate actively in hostilities may be committed irrespective of the number of children enlisted by the accused person. 

a.   Whether Kondewa Committed or Aided and Abetted the Recruitment by Enlisting More Than one Child

126.     The Appeals Chamber will now determine whether the Trial Chamber erred in failing to find Kondewa responsible for committing and/or aiding and abetting the enlistment of children other than Witness TF2-021.

127.     The Trial Chamber accepted and considered evidence of several witnesses including three former child soldiers in determining Kondewa’s responsibility for child enlistment;[260] but relied solely on the evidence of Witness TF2-021 in arriving at its conclusion.  The Trial Chamber found that the evidence of Witness TF2-021 was “pivotal in making its factual findings,”[261] and noted that “the events in question occurred when he was very young and [that] his testimony comes many years after the events in question.”[262]  Nevertheless, the Trial Chamber found the testimony of Witness TF2-021 “highly credible and largely reliable.”[263]

128.     The Appeals Chamber notes the Trial Chamber’s finding that at the age of 11 years,[264] Witness TF2-021 was initiated by Kondewa, his “sowe” or initiator, into the Kamajor society at Base Zero.[265]  According to the Witness there were approximately 400 initiates, 20 of whom the Witness estimated to be almost the same age group as him.[266]  The Trial Chamber found that these other young boys were also initiated by Kondewa.[267]  As part of the initiation ceremony, the boys “were told that they would be made powerful for fighting and were given a potion to rub on their bodies as protection . . . before going [into] war.”[268]

129.     In the absence of evidence concerning the ages of the other boys, the Appeals Chamber finds that no reasonable trier of fact could have found that the testimony of Witness TF2-021 sufficiently establishes the age of the 20 young boys who were initiated with him.

130.     The Trial Chamber accepted the evidence provided by two other former child soldiers who underwent initiation.[269]  The Trial Chamber found that Witness TF2-140 was initiated into the Kamajor society at the age of 14 years along with adults as well as other children who were 10 or 11 years old.[270]  Initiation fees were paid to the district initiator who then sent the fees to Kondewa, the High Priest of the Kamajors.[271]  The Trial Chamber also found that Witness TF2-004 was initiated at Liya by Muniro Sherif along with many others, including children as young as 10 years old.[272] 

131.     The Trial Chamber reached its conclusion about Kondewa’s responsibility for the enlistment of children by relying solely on the evidence of Witness TF2-021.[273]  The Trial Chamber did not find that Kondewa was involved in the initiation process of Witnesses TF2-140 and TF2-004.

132.     In view of the lack of evidence of the ages of the boys who were initiated along with Witness TF2-021, as well as the absence of evidence indicating that Kondewa was involved in the initiations of Witness TF2-140 and Witness TF2-004, the Appeals Chamber finds, Justice Winter dissenting, that the Trial Chamber was correct in not finding Kondewa liable for committing or aiding and abetting the crime of enlistment of children other than Witness TF2-021.  The Prosecution’s Fifth Ground of Appeal therefore fails in this respect.

 

b.   Whether Kondewa Committed or Aided and Abetted the Use of Child Soldiers

133.     Although the Prosecution has charged Kondewa in Count 8 with the use of children below the age of 15 years in hostilities, as an alternative to the charge of enlisting them as child soldiers, the Trial Chamber held that having found him individually criminally responsible for enlisting children as child soldiers, it did not need to consider the evidence in relation to the alternative charge.  The Appeals Chamber holds, in the circumstances, that it cannot consider any evidence or pronounce a verdict on the alternative charge.[274]  Even if the Appeals Chamber were to consider the evidence, it would still have come to the conclusion as it earlier did[275] that there was absence of evidence concerning the ages of the alleged children.

134.     The Appeals Chamber opines that the Trial Chamber should have considered any evidence on the alternative charged and made findings upon such evidence even though, at the end, a verdict would be pronounced on only one of the alternative charges.

135.     The Prosecution’s Fifth Ground of Appeal therefore fails in this respect. 

(b)   Kondewa’s Fifth Ground of Appeal: Committing the Crime of Enlistment of Children

(i)   Submissions of the Parties

136.     In his Fifth Ground of Appeal, Kondewa contends that the majority of the Trial Chamber, Justice Thompson dissenting, erred in law and in fact in finding him criminally responsible under Article 6(1) for committing the crime of enlisting a child under the age of 15 years into an armed force or group.[276]  Specifically, Kondewa submits that the Trial Chamber’s evaluation of the evidence was wholly erroneous, and, he advances three main arguments in support of this contention.   First, Kondewa argues that the Trial Chamber’s conclusion that initiation is analogous to enlistment for active military service amounts to an error because it conflates initiation and enlistment.[277]  Second, Kondewa submits that the Trial Chamber erred in its findings regarding the second initiation of Witness TF2-021 into the Avondo Society, in that it suggested that enlistment is a crime that may recur numerous times in relation to the same child within the same fighting group.[278]  Third, Kondewa submits that the Trial Chamber based its findings on ‘unclear’ witness testimony and contradictory conclusions on the meaning of this testimony.[279]

137.     The Prosecution concedes that initiation is not necessarily military recruitment and that it was originally meant to serve other purposes.  However, the Prosecution argues that the Trial Chamber was correct to consider evidence of initiation in determining whether the crime of child enlistment was committed because initiation was the means by which children were accepted as fighters into the CDF.[280] 

138.     The Prosecution’s response to Kondewa’s second argument is three fold: first, that the Trial Chamber did not expressly find that Witness TF2-021’s second initiation into the Avondo Society was an actual act of enlistment,[281] second, that even if it was the case that the Trial Chamber erred in law by finding that Witness TF2-021 was initiated a second time, Kondewa has failed to demonstrate how this error invalidates the Trial Chamber’s decision,[282] and third, that on the basis of the foregoing submissions, the Appeals Chamber need not consider whether enlistment is a recurring crime, that is, whether a person who has already been enlisted into an armed group and is a member of the group may be enlisted again.[283]  The Prosecution, however, submits that it does not concede that any subsequent acts of enlistment would not amount to a crime under international law.[284]  Regarding Kondewa’s third argument, the Prosecution submits that the evidence relied on by the Trial Chamber was not unreliable or contradictory.  The Prosecution asserts that any reasonable trier of fact would have reached the same conclusion as the Trial Chamber based on the evidence adduced.[285]

(ii)   Discussion
a.   Alleged Error in Finding that Initiation was Enlistment

139.     The Appeals Chamber affirms that the crime of recruitment by way of conscripting or enlisting children under the age of 15 years into an armed force or group and/or using them to participate actively in hostilities constitutes a crime under customary international law entailing individual criminal responsibility.[286]  Pursuant to Article 4.c. of the Statute, the crime of conscripting or enlisting children or using them to participate actively in hostilities, constitutes an other serious violation of international humanitarian law.[287]  The actus reus requires that the accused recruited children by way of conscripting or enlisting them or that the accused used children to participate actively in hostilities.[288]  These modes of recruiting children are distinct from each other and liability for one form does not necessarily preclude liability for the other.

140.     According to the Trial Chamber in the AFRC Trial Judgment, enlistment means “accepting and enrolling individuals when they volunteer to join an armed force or group.”[289]  The act of enlisting presupposes that the individual in question voluntarily consented to be part of the armed force or group.  However, where a child under the age of 15 years is allowed to voluntarily join an armed force or group, his or her consent is not a valid defence.[290]

141.     It is apparent to the Appeals Chamber that there is a paucity of jurisprudence on the question of how direct an act must be to constitute “enlistment” under Article 4.c., as well as the possible modes of enlistment.  The Appeals Chamber holds that for enlistment there must be a nexus between the act of the accused and the child joining the armed force or group.  There must also be knowledge on the part of the accused that the child is under the age of 15 years and that he or she may be trained for combat.[291]  Whether such a nexus exists is a question of fact which must be determined on a case-by-case basis. 

142.     On the particular facts of this case, it is clear that the enlistment of Witness TF2-021 had taken place before he was initiated by Kondewa.  The evidence shows that the Witness had first been captured by the rebels in 1995 and was later captured by the CDF in 1997.[292]  Upon his capture by the CDF, Witness TF2-021 was forced to carry looted property by the CDF.[293]  This act, in the opinion of the Appeals Chamber constituted enlistment.  For this conclusion, the Appeals Chamber draws support from paragraph 4557 of the ICRC Commentary to Article 4(3)(c) of Additional Protocol II referred to by the Trial Chamber itself.[294]

143.     Paragraph 4557 of the Commentary states:

“The principle of non-recruitment also prohibits accepting voluntary enlistment.  Not only can a child not be recruited, or enlist himself, but furthermore he will not be ‘allowed to take part in hostilities’, i.e. to participate in military operations such as gathering information, transmitting orders, transporting ammunition and foodstuffs, or acts of sabotage.”[295]

144.     In the context of this case, in which the armed group is not a conventional military organisation, “enlistment” cannot narrowly be defined as a formal process.  The Appeals Chamber regards “enlistment” in the broad sense as including any conduct accepting the child as a part of the militia.  Such conduct would include making him participate in military operations.

145.     In these circumstances, the Appeals Chamber, Justice Winter dissenting, holds the view that Witness TF2-021 had already been enlisted before Kondewa initiated him into the Kamajors.

(iii)   Conclusion

146.     For the above reasons, the Appeals Chamber, Justice Winter dissenting, grants Kondewa’s Fifth Ground of Appeal and reverses the verdict of guilt and substitutes a verdict of not guilty on Count 8.

4.   Fofana’s Liability

(a)   Prosecution’s Fifth Ground of Appeal: Fofana’s Liability for Aiding and Abetting Enlistment and Use

(i)   Submissions of the Parties

147.     In its Fifth Ground of Appeal, the Prosecution contends that the majority of the Trial Chamber erred in acquitting Fofana of child enlistment and/or the use of children to participate actively in hostilities.[296]  The Prosecution argues that Fofana is criminally responsible under Article 6(1) for aiding and abetting child enlistment and/or use of children to participate actively in hostilities.[297] 

148.     According to the Prosecution, Fofana provided practical assistance to the CDF/Kamajors which had a substantial effect on the military enlistment or active use of children under the age of 15 years in hostilities.[298]  In support of its contention, the Prosecution relies on the Trial Chamber’s findings that Fofana played a central role in the organisational life, operations, decision-making and the activities of the CDF which engaged in massive enlistment of children and also used them in active hostilities.[299]  In addition, Fofana provided logistical support in the form of weapons and ammunitions for major attacks in which children were used.[300]  The Prosecution submits that the only reasonable inference to draw from the foregoing evidence and findings of the Trial Chamber is that the logistical support provided by Fofana also supplied the children involved in combat activities and that Fofana thereby assisted in the commission of the crime.[301]

149.     Furthermore, the Prosecution submits that Fofana encouraged the military enlistment of children and/or their active use in hostilities “in ways that had substantial effect on the commission of those crimes.”[302]  The Prosecution submits that Fofana’s presence and speech at a passing out parade during which Norman praised junior Kamajor fighters, coupled with his position as a superior in the CDF, constitutes encouragement for the purpose of aiding and abetting.[303] 

150.     Regarding Fofana’s mens rea, the Prosecution relies on the following evidence in arguing that the only reasonable conclusion which could be reached was that Fofana knew or ought to have known that he assisted and encouraged child enlistment and/or use:[304] first, Fofana’s presence at commanders’ meeting during which Norman praised junior Kamajor fighters;[305] second, Fofana’s presence at Base Zero where child soldiers were also seen;[306] third, the testimony of Witness TF2-140 that he acted as part of the security team for Fofana’s household;[307] fourth, Fofana’s close association with Kondewa whom the Trial Chamber found to have enlisted a child;[308] and finally, Fofana’s role of authority in the CDF.[309]

151.     Fofana responds that the Prosecution failed to demonstrate how the Trial Chamber’s decision to acquit him amounts to an error.[310]  Fofana acknowledges that the CDF as an organisation enlisted child soldiers, but submits that this is insufficient proof that he was personally involved in the crime of enlistment.  Fofana submits that his mere presence at events and his position of authority in the CDF do not amount to encouragement or assistance for the purpose of aiding and abetting.[311]  Furthermore, Fofana submits that the Prosecution failed to establish that he possesses the requisite mens rea for aiding and abetting child enlistment.[312]

(ii)   Discussion

152.     The Appeals Chamber notes that the Trial Chamber accepted and considered the foregoing evidence in determining Fofana’s criminal responsibility, but found that it did not establish beyond reasonable doubt that Fofana is responsible for child enlistment or use pursuant to any of the modes of liability under Article 6(1), including aiding and abetting.[313]  The Prosecution merely proffers arguments based on evidence which the Trial Chamber considered and rejected, but does not point to any error in the reasoning of the Trial Chamber.  The Appeals Chamber emphasises that on appeal, a party cannot merely repeat arguments which did not succeed at trial in the hope that the Appeals Chamber will consider them afresh, unless that party can demonstrate that rejecting them constituted an error which warrants the intervention of the Appeals Chamber.[314]

153.     The Appeals Chamber finds, Justice Winter dissenting, that the Prosecution has failed to demonstrate that no reasonable trier of fact could have found that Fofana was not responsible for aiding and abetting child enlistment and their use to participate actively in hostilities. 

5.   Conclusion

154.     For the reasons stated, the Appeals Chamber, Justice Winter dissenting, dismisses the Prosecution’s Fifth Ground of Appeal in its entirety, grants Kondewa’s Fifth Ground of Appeal, reverses the verdict of guilt on Count 8 and substitutes the verdict of not guilty.

III.   KONDEWA’s APPEAL

A.   Kondewa’s First Ground of Appeal: Superior Responsibility Pursuant to Article 6(3) of the Statute in Relation to Bonthe District.

1.   Introduction

155.     The Trial Chamber found that the Kamajors committed the following crimes during the attack on Bonthe on 15 February 1998:

(i) violence to life, health and physical or mental well-being of persons a violation of Article 3 common to the Geneva Conventions and of Additional Protocol II, namely: murder and cruel treatment, punishable under Article 3.a. of the Statute, charged in Counts 2 and 4, respectively;

(ii) violation of Article 3 common to the Geneva Conventions and of Additional Protocol II, namely: 

                        (a) pillage, punishable under Article 3.f. of the Statute;

(b) collective punishments, punishable under Article 3.b. of the Statute, charged in Counts 5 and 7 respectively.[315] 

The Trial Chamber found Kondewa responsible for these crimes as a superior pursuant to Article 6(3) of the Statute.[316]  However, he was not found responsible pursuant to Article 6(1).[317]

156.     Kondewa alleges an error in law and in fact by the majority of the Trial Chamber, Justice Thompson dissenting, in finding that the Prosecution had proven beyond reasonable doubt that he was individually criminally responsible as a superior, pursuant to Article 6(3), for crimes committed during the attack on Bonthe District on 15 February 1998.[318]  The issue raised by Kondewa in his First Ground of Appeal specifically concerns the application of the “effective control” test in determining whether a superior-subordinate relationship existed between him and the alleged perpetrators of the criminal acts.[319]

2.   The Findings of the Trial Chamber

157.     The Trial Chamber found that there was a superior-subordinate relationship between Kondewa and three Kamajor commanders in Bonthe, namely, Morie Jusu Kamara (District Battalion Commander and overall commander for the Bonthe attack), Julius Squire (Kamara’s second in command) and Kamajor Baigeh (Battalion commander of the Kassilla battalion).[320]  The Trial Chamber stated that Kondewa exercised effective control over these Kamajors and the Kamajors under their immediate command, and had the legal and material ability to issue orders to Kamara both by virtue of his de jure status as High Priest and his de facto status as a superior in Bonthe District.[321]  Kondewa exercised effective control over Kamajors in Bonthe District as early as August 1997, even before Base Zero was established.[322]

158.     The Trial Chamber found that Kamara was the overall commander for the Bonthe attack and that he in turn exercised effective control over Squire, Baigeh, Rambo Conteh, Lamina Gbokambama as well as the other Kamajors under their immediate command.  Furthermore, Kamara and Squire refused to recognise the authority of the Attorney General and to accept any instructions that did not come from Norman or Kondewa.[323]  The Trial Chamber also found that the evidence adduced did not establish beyond reasonable doubt that Kondewa exercised the same degree of control over other Kamajor commanders and fighters who operated in the surrounding areas of Bonthe Town prior to the attack or subsequently.[324]

159.     Having found that murder, cruel treatment and pillage, as charged in Counts 2, 4, and 5, respectively, were committed in Bonthe, the Trial Chamber found that “all of the perpetrators were Kamajors under the effective control of Kondewa.”[325]  The Trial Chamber also found that the acts described in Counts 2, 4 and 5 were perpetrated with the specific intent to punish the civilian population in Bonthe District,[326] and that Kondewa was responsible as a superior for collective punishments, a violation of Article 3 common to the Geneva Conventions and of Additional Protocol II, punishable under Article 3.b. of the Statute in Bonthe District under Count 7.[327]  

160.     On this basis the Trial Chamber found that Kondewa was individually criminally responsible as a superior under Article 6(3) of the Statute for all the crimes charged in Counts 2, 4, 5 and 7 in regard to Bonthe District.

3.   Submissions of the Parties

161.     Kondewa does not challenge the Trial Chamber’s articulation of the legal requirements of individual criminal responsibility under Article 6(3), including the statement that the effective control test is applicable for a determination of whether a superior-subordinate relationship exists.[328]  He submits, however, that the Trial Chamber failed to apply correctly the test of effective control necessary to establish the existence of a superior-subordinate relationship between him and Kamajor commanders Kamara, Squire and Baigeh in Bonthe District.[329]  He argues, in particular, that the evidence did not establish any form of a relationship between him and these Kamajor commanders; that he had authority and control over them; that he issued orders to them; that he had the ability to prevent them from committing criminal acts or to punish them; or that his de jure status as High Priest or de facto status as a superior gave him effective control over them.[330]

162.     Kondewa submits that in finding a superior-subordinate relationship, the Trial Chamber has significantly and unacceptably lowered the bench-mark that has been well-established in international case law.  He submits that the jurisprudence of the ad hoc tribunals indicates that a finding of effective control requires a high level and rigorous analysis of evidence to show that an accused had effective control over subordinates and actual possession of powers of control over the actions of the subordinates.[331]  He also argues that mere possession of de jure powers or substantial influence is insufficient and that superior responsibility is more difficult to establish for civilian superiors usually due to the lack of formal powers of control in their case.[332]  Finally, he submits that in almost every case in which an accused person has been convicted on the basis of command or superior responsibility, the accused’s position fell within “a hierarchy or chain of command.”[333]

163.     Furthermore, he submits that the Trial Chamber “unjustifiably disregarded the evidence of Albert Nallo who testified that [he] did not at any time during the war ‘command any troops’” even though in the Trial Chamber’s view Nallo “was . . . the single most important witness in the Prosecution evidence on the alleged superior responsibility of the Accused. . . ”[334]

164.     Kondewa also submits that evidence relied on by the Trial Chamber consisted of events occurring outside the timeframe of the Indictment.[335]  In short, Kondewa submits that effective control must be established at the time when the alleged crimes in question were committed and that this requirement was not met in the present case.  He accordingly requests that the Appeals Chamber expunge this evidence which was irrelevant and highly prejudicial.

165.     Kondewa submits that because the Trial Chamber found that his de jure status as High Priest did not give him effective control in locations other than Bonthe, it was “unclear how the Trial Chamber determined that [this] status as High Priest gave him any higher degree of authority in Bonthe.”[336]  He, therefore, requests the Appeals Chamber to reverse the Trial Chamber’s finding that he was individually criminally responsible as a superior under Counts 2, 4, 5 and 7 for crimes committed during the attack on Bonthe Town.

166.     The Prosecution also concurs with the Trial Chamber’s articulation of the legal requirements for a finding of superior responsibility under Article 6(3), and that the test for the establishment of a superior-subordinate relationship is that of effective control.[337]  The Prosecution submits, however, that contrary to Kondewa’s submission, the Trial Chamber did not adopt a lower evidentiary standard in applying the test of effective control.  In particular, the Prosecution argues that there are no fixed categories or types of evidence that may be relied upon by a Trial Chamber to establish the existence of a superior-subordinate relationship.[338]  The Prosecution submits that “the indicators of effective control are more a matter of evidence than of substantive law, and whether the evidence regarding a civilian’s de jure or de facto authority establishes effective control over subordinates must be determined on a case-by-case basis . . . ”[339]

167.     Furthermore, the superior need not be a commander of the subordinate[340] and there need not be a hierarchy, subordination and chains of command, nor proof of direct or formal subordination.  Nor is it necessary to establish that the accused gave direct instructions or actual and repeated orders to alleged subordinates, or that the accused actually punished them.[341]  What needs to be established is that the superior had the “material ability to prevent or punish criminal conduct,” however that control is exercised.[342]  Furthermore, case law does not draw any distinction between the legal standard required for proof of a superior-subordinate relationship in the case of “civilian” as opposed to “military” superiors.[343]

168.     In response to Kondewa’s argument that the Trial Chamber considered evidence of acts occurring outside the timeframe of the Indictment, the Prosecution submits that such evidence “may, nonetheless, be taken into account where relevant to and probative of the individual responsibility of the accused for conduct that did occur within the timeframe of the [I]ndictment,”[344] and that consequently it was open to a reasonable trier of fact to conclude that Kondewa exercised effective control in August 1997 and that this effective control continued to, at least, March 1998.[345]

169.     The Prosecution also submits that in any event, the Trial Chamber did not base its findings regarding the existence of a superior-subordinate relationship on Kondewa’s de jure status as High Priest alone, but on the totality of the evidence in the case.[346]  The Prosecution therefore submits that based on the findings of fact relied upon by the Trial Chamber, a reasonable trier of fact could find that Kondewa had effective control over his alleged subordinates in Bonthe District.

170.     In reply, Kondewa also relies on his submissions under his First Ground.[347]

4.   Preliminary Issues

(a)   Whether the Alleged Error is an Error of Law or an Error of Fact

171.     Kondewa alleges that the Trial Chamber erred in both law and fact in finding that he was responsible as a superior pursuant to Article 6(3) for the crimes committed in Bonthe District.  It is evident, however, from the submissions that he does not challenge the Trial Chamber’s articulation of the legal requirements for the establishment of superior responsibility under Article 6(3) of the Statute.  Kondewa, therefore, does not allege an error of law, but is instead concerned with the way in which the Trial Chamber applied the law to the particular facts of his case.  The Appeals Chamber is of the view that this submission, in essence, questions the inferences drawn from facts found by the Trial Chamber and is therefore factual in nature.  Kondewa must therefore satisfy the standard of review for alleged errors of fact.

(b)   Scope of Kondewa’s Arguments

172.     Kondewa’s arguments concern the Trial Chamber’s application of the effective control test in determining a superior-subordinate relationship between him and the perpetrators of certain criminal acts during the attack on Bonthe.  Even though Kondewa disputes the totality of the Trial Chamber’s findings regarding his role as a superior, he does not proffer any argument in support of other aspects of his ground of appeal.[348]  Kondewa’s arguments are specifically limited to the finding of the existence of a superior-subordinate relationship.  Although Kondewa challenges the finding that he had both the legal and material ability to prevent the commission of criminal acts by his subordinate Morie Jusu Kamara and other subordinates and to punish them for those crimes, the Trial Chamber’s finding that he knew or had reason to know that certain crimes were being committed or that he failed to prevent their commission or to punish the alleged perpetrators was not challenged as such.[349] 

173.     In order for the Appeals Chamber to assess a party’s arguments on appeal, the party must set out its grounds of appeal clearly, logically and exhaustively and must support allegations of error with precise references to the trial judgment or other material that supports his appeal.  The Appeals Chamber will not consider submissions which are obscure, contradictory, vague or suffer from formal or other deficiencies.[350]  The Appeals Chamber will, therefore, only consider the Trial Chamber’s application of the effective control test, and determine whether based on the findings of fact, a reasonable trier of fact could have concluded that a superior subordinate relationship existed between Kondewa and these Kamajors.

5.   Discussion

174.     Both parties concur with the Trial Chamber’s articulation of the legal requirements for the establishment of superior responsibility under Article 6(3).  They differ, however, in the application of the effective control test to civilian as opposed to military superiors.  Both parties agree that a superior-subordinate relationship may be of a military or civilian character and that individuals in positions of authority whether within civilian or military structures may incur criminal responsibility on the basis of their de facto and/or de jure positions as superiors.[351]  Kondewa argues that for a civilian superior to be found to have effective control pursuant to Article 6(3), the superior must either exercise powers of control similar to or analogous to that of a military commander, or must be part of a formalized structure of command.[352]  According to Kondewa, liability under Article 6(3) is more difficult to establish for civilian superiors because there is usually an absence of formal powers of control in such a case.[353]

175.     As has been noted, the position taken by the Prosecution is that there is no distinction between the legal standards required for proof of a superior-subordinate relationship in the case of “civilian” as opposed to “military” superior.  The Appeals Chamber holds that the test for establishing the existence of a superior-subordinate relationship is effective control for both military and civilian superiors.[354] 

176.     The Appeals Chamber will now determine whether it was reasonable for the Trial Chamber to conclude that Kondewa exercised the requisite degree of “effective control” over his alleged subordinates.

6.   Application of the Effective Control Test

177.     The Trial Chamber relied on the following facts to conclude that as of 15 February 1998, Kondewa exercised effective control over Kamara, Squire and Baigeh: (a) the de jure status of Kondewa as a High Priest; (b) an incident which occurred in August 1997, (c) events which occurred during the 15 February 1998 attack on Bonthe, and (d) a letter sent from the Attorney-General to Kamajors in Bonthe in March 1998.[355]  These facts are discussed in detail below.

(a)   The de jure Status of Kondewa

178.     In finding that a superior-subordinate relationship existed between Kondewa and the Kamajor commanders responsible for the Bonthe attack, the Trial Chamber relied on what it describes as his de jure status as High Priest of Kamajors in Sierra Leone and particularly so in Bonthe District.[356]  Kondewa submits that because the Trial Chamber found elsewhere in the Judgment that the command he had over the Kamajors by virtue of his position as High Priest did not amount to a relationship of effective control, it was “unclear how the Trial Chamber determined that [his] status as High Priest gave him any higher degree of authority in Bonthe.”[357]  The Appeals Chamber notes that the Trial Chamber indeed found that Kondewa’s status as High Priest did not amount to effective control over the Kamajors.[358]

179.     The Appeals Chamber notes, however, that the Trial Chamber did not base its findings on the existence of a superior-subordinate relationship for Bonthe District on Kondewa’s de jure position as High Priest alone. In addition to Kondewa’s de jure status, the Trial Chamber relied on his de facto status as a superior to his alleged subordinates, as disclosed by evidence of his actual exercise of effective control over Kamajors who committed crimes in Bonthe District.[359]  Although his position as High Priest was one of several factors considered by the Trial Chamber in determining the existence of a superior-subordinate relationship, the Appeals Chamber is of the view that this is not a material factor in view of the overwhelming evidence of his actual exercise of effective control.  Such include evidence of the relationship with his alleged subordinates in Bonthe, including an incident occurring in August 1997, events occurring during the 15 February 1998 attack on Bonthe, and a reaction to a letter sent from the Attorney-General to Kamajors in Bonthe in March 1998.

(b)   The August 1997 Incident

180.     The Trial Chamber also relied on an incident occurring in Bonthe in August 1997, prior to the setting up of Base Zero, which involved a delegation sent to Kondewa as “the supreme head of the Kamajors.”[360]  Kondewa submits that the evidence falls outside the time frame of the Indictment, and that such evidence may not be relied upon to find that he exercised effective control six months later.[361] 

181.     The Appeals Chamber concurs that effective control must be established at the time of commission of the alleged crimes.[362]  The Appeals Chamber is of the view, however, that even though an accused cannot be convicted for criminal acts falling outside the period of the Indictment, evidence of matters occurring outside the timeframe of the Indictment may be taken into account where relevant and probative of the accused’s responsibility as a superior.[363]  The evidence was relied upon by the Trial Chamber to establish that at a time before the commission of the crimes, Kondewa had effective control and that he had authority and power to issue oral and written directives to the Kamajors in the area.  He had the power to order investigations for misconduct, and to hold court hearings and to threaten the imposition of sanctions of “a terrible death” on the Kamajors if they lied to him.[364]  The evidence also establishes Kondewa’s pre-existing relationship with Squire.[365] 

182.     Taken together with the events of February and March 1998, the evidence shows that a reasonable trier of fact could conclude that this effective control continued until at least 15 February 1998.

(c)   Events Occurring during the 15 February 1998 Attack on Bonthe

183.     The Trial Chamber also relied on events that occurred during the 15 February 1998 attack itself.[366]  Kamara, as the overall commander of the Bonthe attack,[367] sent several reports to Kondewa at Base Zero about the situation in Bonthe.[368]  Based on these reports, three delegations came to Bonthe from Base Zero to investigate the situation.  The first two delegations acted under Kondewa’s instructions and Kondewa himself was the leader of the third delegation that arrived in Bonthe on 1 March 1998.[369]  Witness Father Garrick testified that Kondewa came to Bonthe on the request of Kamara who had been complaining about the attitude of the Kamajors towards the civilians, and especially regarding the plight of the chiefdom speaker, Lahai Ndokoi Koroma, who was being targeted by the Kamajors for allegedly being a “junta.”[370]  Only Kondewa had authority to release Lahai Koroma and Kondewa left with him to Talia and later to Bo.

184.     This evidence shows that Kamara reported to Kondewa about events in Bonthe not in the latter’s capacity as High Priest, but in his capacity as de facto commander of the Kamajors who carried out the attack.  Furthermore, Kondewa said at a public meeting in Bonthe that he had not allowed his men to enter Bonthe but that they had not listened to his advice and had done what they had done.  He apologised on their behalf and told the gathering that the Kamajors and not ECOMOG were responsible for security in the area.[371]

(d)   Letter from the Attorney General in March 1998.

185.     In March 1998, a delegation came to Freetown from Bonthe to complain to the President and the Attorney-General about the looting and killing carried out by the Kamajors in Bonthe.  A letter written by the Attorney-General was given to Kamara, who passed it on to Squire.  The latter declared that he refused to recognise the authority of the Attorney-General, or to accept any instructions unless they came from Norman or Kondewa.[372]

7.   Disposition

186.     The Trial Chamber’s findings on the existence of a superior-subordinate relationship in each location was based on the totality of the evidence in the case with regard to such location.  In the case of Bonthe, Kondewa’s position as High Priest, which gave him a certain status, was just one of several factors considered by the Trial Chamber.  The Trial Chamber also found that Kondewa had authority and power to issue oral and written directives; that he could order investigations for misconduct and hold court hearings; and that he had the legal and material ability to issue orders to Kamara.[373]  Furthermore, Kondewa himself acknowledged his authority and control over Bonthe by stating publicly that he refused “to give any areas under his control to a military government but to the democratically elected Government of President Ahmad Tejan Kabbah.”[374]

187.     The Appeals Chamber finds that it was open to a reasonable trier of fact, based on all the evidence adduced, to conclude that Kondewa’s de facto status as superior resulted in the exercise of effective control over the Kamajors who committed crimes in Bonthe.  The fact that the Trial Chamber found that Kondewa did not exercise the same degree of control over Kamajors in other locations does not render the Trial Chamber’s findings in relation to Bonthe inconsistent or illogical.

188.     The Appeals Chamber therefore finds that Kondewa has failed to show that no reasonable trier of fact could have reached the conclusion that a superior-subordinate relationship existed between him and his alleged subordinates in Bonthe District.

189.     For the foregoing reasons, the Appeals Chamber, Justice King dissenting, dismisses Kondewa’s First Ground of Appeal.

B.   Kondewa’s Second Ground of Appeal: Alleged error in finding Kondewa responsible for committing murder at Talia/Base Zero

1.   Introduction

190.     Kondewa submits that the Trial Chamber erred in finding him guilty for committing the crime of murder as charged in Count 2, which is prohibited by common Article 3(1)(a) of the Geneva Conventions and punishable under Articles 3.a. and 6(1) of the Statute.[375]  He asks the Appeals Chamber to overturn this conviction under Count 2.

191.     The Trial Chamber found that:

“Sometime towards the end of 1997, two Town Commanders were brought to Talia. Kondewa took a gun from Kamoh Bonnie, Kondewa’s priest, shot and killed one of the town commanders. The next morning [the] witness saw two graves where the bodies of the two town commanders were buried.”[376]

192.     The Trial Chamber found that this incident constitutes an “intentional killing perpetrated by Kondewa” and further found that these men were killed because they were considered to be “collaborators” and finally it was held that “it has been proven beyond a reasonable doubt that Kondewa is individually criminally responsible pursuant to Article 6(1) for committing murder as a war crime as charged under Count 2 of the Indictment.”[377]

2.   Submissions of the Parties

193.     Kondewa’s principal submission is that the Prosecution did not prove beyond reasonable doubt that he is guilty of committing the murder of two town commanders in Talia/Base Zero.  Specifically, he argues that (i) the incident involving the town commanders occurred outside the timeframe of the Indictment; (ii) the identification of Kondewa as the perpetrator was not established; (iii) the Trial Chamber erred in relying solely on hearsay evidence and on circumstantial evidence in finding Kondewa responsible for murder.[378]

194.     The Prosecution asserts that the whole of the evidence of Witness TF2-096 on which the Trial Chamber relied has to be evaluated in light of all of the evidence.  The Prosecution argues that it was open to a reasonable Trial Chamber to conclude that the Witness TF2-096 identified Kondewa[379] based on her direct evidence that she saw him shoot one of the town commanders, who then fell.  On the basis of all the evidence a reasonable trier of fact could have found Kondewa responsible beyond reasonable doubt.

3.   Discussion

(a)   Alleged Error in Relying on Uncorroborated Hearsay Testimony of one Witness and Inference of Guilt Drawn from Circumstantial Evidence

195.     The main issue under this ground of appeal concerns the Trial Chamber’s evaluation of Witness TF2-096’s testimony.  The Trial Chamber found that Witness TF2-096 saw Kondewa shoot one of the town commanders.[380]  The next morning, Witness TF2-096 also saw two graves and was told that the town commanders were buried in them.[381]  In response to the Prosecution’s question, “do you know what eventually happened to this man you saw being shot?” Witness TF2-096 responded that the next day she was told by the Kamajors that “the two people dancing yesterday were in those graves.”[382]

196.     First, Kondewa submits that the evidence relied on by the Trial Chamber in finding that the Town Commander actually died was “skeletal at best” and did not establish that the Town Commander was dead.[383]  Second, Kondewa argues that the Trial Chamber erred in relying solely on this uncorroborated hearsay evidence of Witness TF2-096 in finding Kondewa guilty for committing the murder of the town commander,[384] as the Trial Chamber failed to exercise the appropriate caution in reviewing the hearsay evidence.[385]  Third, Kondewa submits that the Trial Chamber erred in its reliance on circumstantial evidence to convict him of murder because “inferences reasonably to be drawn from the evidence must not only be consistent with Kondewa’s guilt but inconsistent with every reasonable hypothesis of Kondewa’s innocence.”[386]  He asserts that a number of alternative explanations exist, such as that the Town Commander could have been murdered by someone else.[387]

197.     In response, the Prosecution argues that the Trial Chamber took into account the hearsay evidence only as corroborating the eyewitness testimony of Witness TF2-096.[388]  Therefore, the Prosecution submits that this evidence and the inferences to be drawn from all of the relevant evidence in the case as a whole were not only consistent with Kondewa’s individual responsibility for shooting and killing one of the town commanders, but were inconsistent with any reasonable hypothesis of Kondewa’s innocence.[389]  The Prosecution argues that Witness TF2-096’s testimony that the Town Commander “fell” should naturally be understood as a statement that the victim was shot dead.[390]  The Prosecution argues that this was the understanding of everyone in the courtroom including the Defence Counsel, as there was no objection to the Prosecution’s subsequent question about how the witness knew the person who killed the town commander.[391] 

198.     Before assessing whether the Trial Chamber erred in its application of the law to the facts, the Appeals Chamber considers it necessary to set out the applicable law.  The Appeals Chamber considers that as a matter of law it is permissible to base a conviction on circumstantial evidence and/or hearsay evidence.[392]  Because hearsay evidence is admissible as substantive evidence in order to prove the truth of its contents, the Appeals Chamber considers that establishing the reliability of hearsay evidence is of paramount importance.[393] 

199.     Kondewa’s reliance on ICTY and ICTR case law for the proposition that the ad hoc Tribunals “have disregarded uncorroborated hearsay evidence related to an accused’s participation in murder because such evidence is seen as unreliable”[394] is noted.  However, although the jurisprudence from other Courts is of great assistance in determining a question of law, whether a particular Trial Chamber erred in its application of the law to the facts, should be determined on the facts of each case.  Further, the Appeals Chamber notes that, as a matter of law, a Trial Chamber may convict an accused on the basis of a single witness, although such evidence must be assessed with the appropriate caution, and care must be taken to guard against the exercise of an underlying motive on the part of the witness.[395]  Corroboration of evidence is not a legal requirement, but rather concerns the weight to be attached to the evidence.[396]  Any appeal based on the absence of corroboration must be against the weight which a Trial Chamber attaches to the evidence in question.[397] 

200.     It is common place that a criminal tribunal may convict on circumstantial evidence provided that the only reasonable inference to be drawn from such evidence leads only to the guilt of the accused.  When such evidence is capable of any other reasonable inference it is not reliable for the purposes of convicting an accused.  

201.     Witness TF2-096 testified that she saw Kondewa shoot one of the town commanders and that he fell.  Immediately after witnessing this incident, the witness ran away.  The Appeals Chamber finds that the fact that she did not herself witness that the town commander was dead, leaves the possibility open that someone else may have killed the town commander.  The Trial Record does not contain any evidence corroborating the veracity of Witness TF2-096’s testimony that the Kamajors identified the graves of the two people dancing.  Furthermore, no evidence indicates the identity of the Kamajors or whether they were present during the incident during which Witness TF2-096 saw Kondewa shoot the town commander.  In addition, no further evidence concerned whether the town commander died.  No nexus exists between Kondewa’s act and the death of the town commander.  The evidence that the town commander died is insufficient and, therefore, the offence of murder has not been proved.

202.     Therefore, because Witness TF2-096’s testimony did not establish that the town commander died, no reasonable trier of fact could have found that the only reasonable inference was that Kondewa killed the town commander.  Further, even if it had been established that the Town Commander died, someone else could have killed the town commander after Witness TF2-096 ran away, given that it has not been established that the town commander died because of Kondewa’s shot.

4.   Conclusion

203.     Having found that the death of the Town Commander was not proved beyond reasonable doubt, the Appeals Chamber comes to the conclusion that the Trial Chamber was in error in finding that the Town Commander was killed by the Kamajors as alleged in the Indictment. 

204.     The Appeals Chamber grants Kondewa’s Second Ground of Appeal.

C.   Kondewa’s Third Ground of Appeal: Superior Responsibility Pursuant to Article 6(3) of the Statute in Relation to Moyamba District

1.   Introduction and Findings of the Trial Chamber

205.     Kondewa alleges an error in law and in fact by the majority of the Trial Chamber, Justice Thompson dissenting, in finding that the Prosecution has proved beyond reasonable doubt that he was individually criminally responsible as a superior pursuant to Article 6(3) for pillage, a violation of Article 3 common to the Geneva Conventions and of Additional Protocol II punishable under Article 3.f. of the Statute (Count 5), in Moyamba District.[398]  Similar to his First Ground of Appeal, Kondewa in essence challenges the Trial Chamber’s application of the “effective control” test to establish that a superior-subordinate relationship existed between him and his alleged subordinates.

206.     The Trial Chamber found that even though evidence of Kondewa’s de jure status as High Priest was inconclusive to establish beyond reasonable doubt that he had effective control over Kamajors in Moyamba District, he was nevertheless responsible as a superior for one particular incident 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, committed in Moyamba District.[399]  The incident involved the looting of a Mercedes Benz car, a generator, car tires and other gadgets by Kondewa’s alleged subordinates (“Moyamba looting incident”).[400]

207.     The Trial Chamber found that:

“[i]n November 1997, Kamajors under the control of Kondewa took TF2-073’s Mercedes Benz from his home in Sembehun.  The Kamajors said that they were Kondewa’s Kamajors and that they had come from Talia, Tihun, Gbangbatoke and other surrounding villages.  Three of them introduced themselves as Steven Sowa, Moses Mbalacolor and Mohamed Sankoh.  Mohamed Sankoh said he was Deputy Director of War under Norman.  The car was eventually given to Kondewa, who kept the car and used it without permission. 

On the same occasion these Kamajors also took a generator, car tires and other gadgets from TF2-073.”[401] 

208.     The Trial Chamber found that both the general requirements of war crimes and the specific elements 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, had been met, and that the incident demonstrated that the looting was done by Kamajors who operated under the direct orders of Kondewa.[402]  Furthermore, Kondewa’s knowledge that his subordinates committed this crime was established on the basis that the looted car was then given to him to drive around.[403]  The Trial Chamber further found that Kondewa not only failed in the exercise of his duties to punish his subordinates, but chose instead to support their actions by using the looted vehicle himself.[404]

2.   Submissions of the Parties

209.     Kondewa submits that the only evidence relied on by the Trial Chamber to find that a superior-subordinate relationship existed between him and these Kamajors was his acceptance of the looted car after the offence had been committed and after the car had been used by Norman himself.[405]  He argues that the Trial Chamber erred in relying on this single piece of evidence, and that the evidence could not be relied on to establish the existence of a superior-subordinate relationship at the time the offence was committed.[406]  Kondewa therefore requests that the Appeals Chamber reverse the Trial Chamber’s finding that he was responsible as a superior for pillage, a violation of Article 3 common to the Geneva Conventions and of Additional Protocol II punishable under Article 3.f. of the Statute (Count 5) in Moyamba District.

210.     The Prosecution relies on its submissions in response to Ground One of Kondewa’s appeal. In particular, the Prosecution reiterates that the Trial Chamber did not base its findings on the existence of a superior-subordinate relationship on Kondewa’s de jure position as High Priest alone, nor on any single piece of evidence as alleged by the Defence, but on the evidence in the case as a whole.[407]  Furthermore, the Prosecution submits that evidence relied on by the Trial Chamber to establish effective control also included the fact that at the time of the alleged incident, the Kamajors stated that they were “Kondewa’s Kamajors.”[408]  According to the Prosecution it is “clearly possible and consistent with logic and principle” for Kondewa to have had effective control over some but not all Kamajors.[409]

211.     The Prosecution submits therefore that on the basis of the evidence in the case as a whole, it was open to a reasonable trier of fact to conclude that Kondewa had effective control over the perpetrators of the Moyamba looting incident.[410]

3.   Discussion

212.     The issue raised in this ground is whether, based on the evidence as a whole, a reasonable tribunal of fact could conclude that a superior-subordinate relationship existed between Kondewa and his alleged subordinates.  In reaching its findings on the superior responsibility of Kondewa in respect of this incident, the Trial Chamber relied on the following evidence:

“(i) that at the time the crime was committed, the Kamajors said they were “Kondewa’s Kamajors”;

(ii) that they also said they had come from villages including Talia and Tihun both of which are in Bonthe District;

(iii) that the vehicle was taken to Talia and given to Norman then to Kondewa; and

(iv) that Kondewa was subsequently seen driving the car around in Bo.”[411]

213.     Based on this evidence the Trial Chamber concluded that this particular crime in Moyamba District was carried out by Kamajors operating under the direct orders of Kondewa.[412] 

214.     It is evident that apart from Kondewa’s de jure status as High Priest of all the Kamajors in the country, a status which the Trial Chamber found did not by itself give Kondewa effective control over the Kamajors, the only other evidence relied on by the Trial Chamber consisted of statements made by the alleged perpetrators and the use of the vehicle by Kondewa after it had first been given to Norman.  The Appeals Chamber finds that the fact that the Kamajors in question identified themselves as “Kondewa’s Kamajors” is insufficient to establish the existence of a superior-subordinate relationship beyond reasonable doubt, the statement having been made in the absence of Kondewa.  Furthermore, the fact that they also stated that they had come from Talia and Tihun, among other villages, was insufficient. The Trial Chamber, in its findings on the responsibility of Kondewa in Bonthe District, found that apart from the Kamajors who carried out the 15 February 1998 attack on Bonthe, there was no evidence on which it could conclude beyond reasonable doubt that “Kondewa did exercise the same degree of control over other Kamajor commanders and fighters who operated in the surrounding areas of Bonthe Town, prior to the attack or subsequently.”[413]

215.     There was thus, insufficient evidence linking Kondewa to these particular Kamajors that could establish beyond reasonable doubt that he had a superior-subordinate relationship with them.  The Appeal Chamber finds, therefore, that on the evidence it was not open to a reasonable tribunal of fact to conclude that Kondewa was individually criminally responsible as a superior for this particular act 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 in Moyamba District.

4.   Disposition

216.     For the reasons set out above, the Appeals Chamber grants Kondewa’s Third Ground of Appeal and reverses the verdict of guilt on Count 5 and substitutes a verdict of not guilty.

D.   Kondewa’s Sixth Ground of Appeal: Cumulative Convictions and Collective Punishments

1.   Introduction

217.     The majority of the Trial Chamber, Justice Thompson dissenting, convicted Kondewa of collective punishments, a violation of Article 3 common to the Geneva Conventions and of Additional Protocol II, punishable under Article 3.b. of the Statute (Count 7), as well as for three other war crimes, namely, violence to life, health and physical or mental well-being of persons, in particular murder and cruel treatment, punishable under Article 3.a. of the Statute (Counts 2 and Count 4, respectively); and pillage, punishable under Article 3.f. of the Statute (Count 5).[414]  In his Sixth Ground of Appeal,[415] Kondewa submits that the majority of the Trial Chamber erred in law in entering a conviction for collective punishments (Count 7) which is impermissibly cumulative with his convictions for murder (Count 2), cruel treatment (Count 4) and pillage (Count 5), because they are based on the same conduct.[416]

218.     Kondewa does not dispute the Trial Chamber’s pronouncement on the legal standard for cumulative convictions,[417] but instead takes issue with its application.[418]  Kondewa asserts that the Indictment limits the crimes that can be considered for collective punishments to the crimes charged in Counts 2, 4 and 5.  He argues that while the Prosecution relied upon the same conduct to charge collective punishments in Count 7 and the crimes in Counts 2, 4 and 5, the Trial Chamber impermissibly widened the interpretation of punishment for the purposes of collective punishments beyond the conduct charged in Counts 2, 4 and 5.[419]  In particular, the Trial Chamber found that “the term punishment in the first element [of collective punishments] is meant to be understood in its broadest sense and refers to all types of punishments.”[420]  Kondewa submits that the Trial Chamber therefore erred in finding that “because the actus reus and the mens rea of collective punishments can be broader than the ‘punishments’ of Count [sic] 1-5, it is permissible to enter convictions under Count 7 as well as Counts 2-5.” [421]

219.     The Prosecution argues that when an accused has been charged with two crimes in relation to the same conduct, the relevant question is whether the two statutory provisions, as a matter of law, both contain a materially distinct element not contained in the other.[422]  The question is not whether the two statutory provisions, as a matter of fact, are each based on a material fact on which the other is not based.[423]  The Prosecution argues that the relevant crimes, as a matter of law, contain materially distinct elements and that cumulative convictions are therefore permissible.[424]

2.   Discussion

220.     The Trial Chamber held that the “issue of cumulative convictions arises when more than one conviction is imposed for the same criminal conduct” and that multiple convictions for the same conduct are permissible if each statutory provision has a materially distinct element not contained in the other.[425]  Elements are materially distinct from one another if each requires proof of a fact not required by the other.[426]  The Trial Chamber stated that “multiple convictions may only be upheld if both of the provisions require proof of an element that is not required by the other provision.”[427]  The Appeals Chamber agrees with the Trial Chamber’s pronouncement of the law in this regard. 

221.     Before examining the Trial Chamber’s application of the law on cumulative convictions to the crimes at issue in this ground of appeal, the Appeals Chamber first sets forth the following elements for the crime of collective punishments under Article 3.b. of the Statute as stated by the Trial Chamber:

(i)      A punishment imposed collectively upon persons for omissions or acts that they have not committed; and

(ii)     The Accused intended to punish collectively persons for these omissions or acts or acted in the reasonable knowledge that this would likely occur.[428]

222.     Article 3.b. of the Statute is based on Article 33 of the Fourth Geneva Convention and Article 4(2)(b) of Additional Protocol II to the Geneva Conventions, both of which prohibit collective punishments against protected persons.[429]  The prohibition of collective punishments embodies an elementary principle of humanity that penal liability is personal in nature.[430]  Restrictive interpretations of collective punishments must be avoided because the prohibition of this crime is one of the fundamental guarantees of humane treatment.[431]  The prohibition on collective punishments must be understood in its broadest sense so as to include not only penalties imposed during normal judicial processes, such as sentences rendered after due process of law, but also any other kind of sanction such as a fine, confinement or a loss of property or rights.[432] 

223.     The Appeals Chamber emphasises that a “punishment” for the purposes of the crime of collective punishments is an indiscriminate punishment imposed collectively on persons for omissions or acts for which some or none of them may or may not have been responsible.  As such, a “punishment” is distinct from the targeting of protected persons as objects of attack.  The targeting of protected persons as objects of war crimes and crimes against humanity may not necessarily be predicated upon a perceived transgression by such persons and therefore does not constitute collective punishments.  Thus, the mens rea element of collective punishments represents the critical difference between this crime and the act of targeting.  While targeting takes place on account of who the victims are, or are perceived to be, the crime of collective punishments occurs in response to the acts or omissions of protected persons, whether real or perceived.  The targeting of protected persons who are residents of a particular village, for instance, is therefore distinct from the collective punishment of protected persons in a given village who are perceived to have committed a particular act, such as providing rebel forces with shelter.

224.     The Appeals Chamber finds that the correct definition of collective punishments is:

i)                the indiscriminate punishment imposed collectively on persons for omissions or acts for which some or none of them may or may not have been responsible;

ii)              the specific intent of the perpetrator to punish collectively.

225.     In light of the above definition of collective punishments, it is the view of the Appeals Chamber that convictions are permissible for collective punishments, in addition to murder, cruel treatment and pillage.  The crime of collective punishments requires proof of an intention to punish collectively, which murder, pillage and cruel treatment do not.  In addition, murder requires the death of the victim, which collective punishments does not and pillage requires proof of appropriation which the crime of collective punishments does not.  Finally, cruel treatment requires proof of serious mental or physical suffering or injury, which collective punishments does not.  Thus, because each of these crimes requires proof of materially distinct elements, cumulative convictions are permissible in this instance.

226.     Despite our finding that the Trial Chamber did not err in determining that cumulative convictions are permissible for the crime of collective punishments in addition to murder, cruel treatment and pillage, the Appeals Chamber must, nonetheless, re-examine the Trial Chamber’s factual findings on collective punishments in light of the Appeals Chamber’s definition of the elements of this crime.

227.     In relation to the commission of murder and cruel treatment in Tongo, the Trial Chamber found both Fofana and Kondewa liable pursuant to Article 6(1) for aiding and abetting in the preparation of the commission of collective punishments under Count 7.[433]  In relation to the commission of murder and cruel treatment in Koribondo, the Trial Chamber found Fofana liable as a superior, pursuant to Article 6(3), for the commission of collective punishments under Count 7.[434]  In relation to the commission of murder, cruel treatment and pillage in Bo District, the Trial Chamber found Fofana liable as a superior pursuant to Article 6(3), for the commission of collective punishments under Count 7.[435]  Finally, in relation to the commission of murder, cruel treatment and pillage in Bonthe District, the Trial Chamber found Kondewa liable as a superior pursuant to Article 6(3), for the commission of collective punishments under Count 7.[436]

228.     The Trial Chamber relied on numerous factual findings concerning murder, cruel treatment and pillage to support its convictions of Fofana and Kondewa for the commission of collective punishments in the various locations mentioned above.  The Appeals Chamber’s examination of these findings reveals that the victims of murder, cruel treatment and pillage were being targeted in these places because of their identities or their locations at the time of the Kamajors’ attacks.  In particular, the Kamajors targeted individuals who were identified or accused of being rebels and collaborators, or who were related to rebels.[437]  In addition, the Kamajors targeted Loko, Limba and Temne tribe members,[438] policemen[439] and civilians in close proximity to the National Diamond Mining Company (NDMC) Headquarters in Tongo.[440]  Finally, many other civilians appear to have been targets of murder, cruel treatment and pillage merely by chance, due to the indiscriminate nature of the attacks on these locations.[441]  Thus, the Trial Chamber’s factual findings indicate that the individuals who came under attack in Tongo, Koribondo, Bo District and Bonthe District were being targeted due to their perceived identities, their locations, or by sheer chance.

229.     The Trial Chamber’s factual findings do not, however, indicate that these individuals were objects of attack because of perceived acts or omissions for which the Kamajors sought to punish them. 

230.     The Appeals Chamber holds that Trial Chamber’s factual findings do not prove beyond reasonable doubt that the perpetrators of these crimes were attacking protected persons in these areas with the intent to collectively punish them for their perceived acts or omissions.  In the result, the Appeals Chamber finds that the requisite mens rea for collective punishments, which represents the key distinction between targeting and collectively punishing, has not been satisfied.  Given that the mens rea requirement for collective punishments has not been met, the Appeals Chamber need not examine whether the actus reus has been fulfilled.

3.   Disposition

231.     For these reasons, the Appeals Chamber, Justice Winter dissenting, reverses the Trial Chamber’s verdict of Fofana and Kondewa for collective punishments under Count 7 and substitutes a conviction of not guilty.

IV.   Prosecution’s appeal

A.   Prosecution’s First Ground: Crimes Against Humanity

1.   Introduction

232.     Paragraph 25 of the Indictment sets out the material facts upon which Fofana and Kondewa were charged with murder as a crime against humanity under Article 2.a. of the Statute (Count 1) and as a war crime under Article 3.a. of the Statute (Count 2).  The material facts of acts of physical violence and infliction of mental harm or suffering are set out in paragraph 26 of the Indictment, charging both Fofana and Kondewa with inhumane acts, as a crime against humanity under Article 2.g. of the Statute (Count 3) and cruel treatment as a war crime under Article 3.a. of the Statute (Count 4).

233.     The Trial Chamber convicted Fofana and Kondewa under Counts 2 and 4, finding that the legal requirements for murder and cruel treatment as well as the general requirements for war crimes were satisfied.[442]  However, the Trial Chamber acquitted them of Counts 1 and 3 because it held that the general requirements of crimes against humanity were not satisfied in this case. 

234.     The Prosecution submits that the Trial Chamber erred in law and in fact in not finding that the general requirement for crimes against humanity was satisfied.[443]

2.   The Findings of the Trial Chamber

235.     The Trial Chamber confirmed the following general requirements (or chapeau elements) of crimes against humanity as follows:

(i)          There must be an attack;

(ii)        The attack must be widespread or systematic;

(iii)      The attack must be directed against any civilian population;

(iv)      The acts of the Accused must be part of the attack; and

(v)        The Accused knew or had reason to know that his or her acts constitute part of a widespread or systematic attack directed against any civilian population.[444]

236.     The Trial Chamber held that the first and second of these elements were satisfied in this case.[445]  It found that the attacks carried out by the Kamajors in Tongo in late November/early December 1997, early January 1998 and on 14 January 1998; in Koribondo between 13 and 15 February 1998; in Bo Town between 15 and 23 February 1998; in Bonthe on 15 February 1998; and in Kenema between 15 and 18 of February 1998, constituted “part of a widespread attack.”[446]  The Trial Chamber considered that “in the light of the broad geographical area over which these attacks occurred, . . . the requirement of a widespread attack has been established in this case.”[447]

237.     Turning to the third element, the Trial Chamber stated, as held in the Kunarac Appeal Judgment, that this element requires that the civilian population “be the primary rather than an incidental target of the attack.”[448]  The Trial Chamber found that:

“the evidence adduced does not prove beyond reasonable doubt that the civilian population was the primary object of the attack. By contrast, there is evidence that these attacks were directed against the rebels or juntas that controlled towns, villages, and communities throughout Sierra Leone. In this regard the Chamber recalls the admission of the Prosecutor that ‘the CDF and the Kamajors fought for the restoration of democracy.[449]

238.     As a result, the Trial Chamber considered that the requirement that an attack be directed against any civilian population was not satisfied beyond reasonable doubt, and therefore acquitted Fofana and Kondewa under Count 1 (murder as a crime against humanity) and Count 3 (inhumane acts as a crime against humanity).

239.     Under this Ground of Appeal, the main issue that arises is whether the Trial Chamber erred in law or in fact in finding that the third element of crimes against humanity had not been satisfied.  The Appeals Chamber will consider, in turn, the alleged errors of law and of fact raised by the Prosecution.

3.   Alleged Errors of Law

(a)   Submissions of the Parties

240.     The Prosecution contends that the Trial Chamber erred in its legal interpretation of the third element of crimes against humanity.  The Prosecution submits that the Trial Chamber’s finding that the civilian population was not the primary object of the attacks was based on the evidence that “these attacks were directed against the rebels or juntas.”[450]  According to the Prosecution, “it is apparent from this finding that the Trial Chamber considered, as a matter of law, that an attack will not be one that is “directed against” a civilian population if civilians are attacked in the course of attacks directed against opposing forces.”[451]  The Prosecution submits that under the case law of the ICTY and ICTR, the expression that the civilian population be the “primary object of the attack” was not intended to mean that widespread or systematic attacks against civilian populations will not constitute crimes against humanity merely because they occurred during attacks on opposing forces or in the course of operations that had a military objective.[452]  It further submits that the Trial Chamber erred in law in finding that the fact that CDF “fought for the restoration of democracy” may in any way be a material consideration for the purpose of crimes against humanity.[453] 

241.     In response, Kondewa states that the Trial Chamber was correct in finding that the general requirements of crimes against humanity were not satisfied in this case.  He submits that the Trial Chamber applied the correct legal standard in concluding that the civilian population was not the primary object of the attack.[454]  He further submits that the Trial Chamber did not find that since there was an attack against the rebels, there could not be an attack against the civilian population.[455]  Instead, the Trial Chamber simply found that, based on the evidence, the civilian population was not directly and specifically attacked as the primary target.[456]  Kondewa further submits that the Trial Chamber was correct to state that the CDF “fought for democracy,” in view of the fact that the existence of a plan or policy can be relevant to proving that an attack was directed against a civilian population.[457] 

242.     In response, Fofana concurs with the reasoning of the Trial Chamber.  He argues that th