University of Minnesota



Prosecutor v. Brima, Case No. SCSL-04-16-T, Decision on Defence Motions for Judgement of Acquittal Pursuant to Rule 98 (Mar. 31, 2006).




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SPECIAL COURT FOR SIERRA LEONE

JOMO KENYATTA ROADFREETOWN • SIERRA LEONE

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TRIAL CHAMBER II

 

 

Before:      

Justice Richard Lussick, Presiding Judge

Justice Teresa Doherty

Justice Julia Sebutinde

 

Registrar:

 

Mr. Lovemore Munlo

Date:

31 March 2006

PROSECUTOR 

Against

Alex Tamba Brima

Brima Bazzy Kamara

Santigie Borbor Kanu

(Case No.SCSL-04-16-T)

 

 

 

DECISION ON DEFENCE MOTIONS FOR JUDGEMENT

OF ACQUITTAL PURSUANT TO RULE 98

 

 

 

Office of the Prosecutor:

 

Defence Counsel for Alex Tamba Brima:

Christopher Staker

James C. Johnson

Lesley Taylor

Karim Agha

Nina Jorgenson

James R. Hodes

Marco Bundi

 

Kojo Graham

Glenna Thompson

 

Defence Counsel for Brima Bazzy Kamara:

Andrew Daniels

Mohamed Pa-Momo Fofanah

 

Defence Counsel for Santigie Borbor Kanu:

Geert-Jan Alexander Knoops

Carry Knoops

Abibola E. Manly-Spain

 

 


CONTENTS

I.... PROCEDURAL BACKGROUND.. 5

II... Applicable Standard under Rule 98 of the Rules. 6

III. LOCATIONS IN THE INDICTMENT OVER WHICH THE DEFENCE HAS RAISED ISSUE. 9

Locations in respect of which the Prosecution led no evidence: 9

Locations the names of which are spelt differently: 11

IV. THE “GREATEST RESPONSIBILITY” REQUIREMENT.. 12

Applicable Law: 12

Submissions: 12

Deliberations: 13

Findings: 15

V... Elements of Crimes Against Humanity PURSUANT TO Article 2 of The Statute. 15

VI. ELEMENTS OF VIOLATIONS OF ARTICLE 3 COMMON TO THE GENEVA CONVENTIONS AND OF ADDITIONAL PROTOCOL II PURSUANT TO ARTICLE 3 OF THE STATUTE. 18

VII.        Elements Of Other Serious Violations of International Humanitarian Law pursuant to Article 4 of the Statute. 20

VIII.       REVIEW OF THE COUNTS AND ISSUES RAISED.. 21

1.    Counts 1 and 2: Terrorising the Civilian Population and Collective Punishment.. 21

Introduction: 21

1.1.  Count 1: Acts of Terrorism (Article 3.d. of the Statute) 21

Elements of the crime: 21

Submissions: 22

Findings: 23

1.2.  Count 2:  Collective Punishments (Article 3(b) of the Statute) 24

Elements of the crime: 24

Submissions: 24

Findings: 25

2.     Counts 3, 4 and 5: Crimes Relating to Unlawful Killings. 26

Introduction: 26

2.1.  Count 3: Extermination (Article 2.b. of the Statute) 26

Elements of the Crime: 26

2.2.  Count 4: Murder (Article 2.a. of the Statute) 27

Elements of the crime: 27

2.3.  Count 5: Murder (Article 3.a. of the Statute) 27

Elements of the crime: 28

2.4.  Submissions for Counts 3, 4 and 5. 29

2.5.  Findings for Counts 3, 4 and 5. 37

General findings: 37

Findings with regard to Count 3 (Extermination): 38

Findings with regard to Count 4 (Murder): 39

Findings with regard to Count 5 (Murder): 40

3.    Counts 6, 7, 8 and 9: Crimes Relating To Sexual Violence. 41

Introduction. 41

3.1.  Count 6: Rape (Article 2.g of the Statute) 41

Elements of the crime: 42

3.2.  Count 7: Sexual Slavery and Any Other Form of Sexual Violence (Article 2.g. of the Statute) 42

Elements of Sexual Slavery: 42

Elements of Any Other Form of Sexual Violence: 43

3.3.  Count 8: Other Inhumane Act (Article 2.i of the Statute) 44

Elements of the crime: 44

3.4.  Count 9: Outrages Upon Personal Dignity (Article 3.e. of the Statute) 44

Elements of the crime: 44

3.5.  Submissions for Counts 6, 7, 8 and 9. 45

3.6.  Findings for Counts 6, 7, 8 and 9. 51

Findings for Count 6 (Rape): 51

Findings for Count 7 (Sexual Slavery and Any  Other Form of Sexual Violence): 52

Findings for Count 8 (Any Other Inhumane Acts): 53

Findings for Count 9 (Outrages Upon Personal Dignity): 54

4.    Counts 10 And 11: Crimes Relating To Physical Violence. 54

Introduction: 54

4.1.  Count 10: Mutilation (Article 3.a. of the Statute) 55

Elements of the crime: 55

4.2.  Count 11: Other Inhumane Acts (Article 2.i. of the Statute) 56

Elements of the crime: 56

4.3.  Submissions for Counts 10 and 11. 57

4.4.  Findings for Counts 10 and 11. 60

General findings: 60

Findings with regard to Count 10 (Mutilation): 60

Findings with regard to Count 11 (Other inhumane acts): 62

5.    Count 12: Crimes Relating to Child Soldiers. 62

Introduction: 62

Elements of the Crime: 63

Submissions: 63

Findings: 65

6.    Count 13: Abductions and Forced Labour.. 65

Introduction: 65

Elements of the crime: 66

Submissions: 67

Findings: 71

7.    Count 14: Crimes Relating to Burning and Looting.. 73

Introduction: 73

7.1.  Count 14: Pillage (Article 3.f. of the Statute) 74

Elements of the crime: 74

Submissions: 75

Findings: 79

7.2.  Destruction by Burning of Civilian Property: 79

7.3.  Looting. 80

IX. INDIVIDUAL CRIMINAL RESPONSIBILITY UNDER THE STATUTE. 81

Introduction: 81

8.  Individual Criminal Responsibility under Article 6.1 of the Statute. 82

8.1.  Committing. 82

Submissions: 83

Findings: 83

8.2.  Planning. 84

Submissions: 84

Findings: 85

8.3.  Instigating. 86

8.4.  Ordering. 86

Submissions: 87

Findings: 87

8.5.  Aiding and Abetting. 88

Submissions: 88

Findings: 89

9.  Individual Criminal Responsibility by Participation in a Joint Criminal Enterprise. 90

Submissions: 91

Findings: 93

10.  Individual Criminal Responsibility under Article 6.3 of the Statute. 95

Submissions: 95

Findings: 96

X... DISPOSITION.. 97

 


trial chamber II (“Trial Chamber”) of the Special Court for Sierra Leone (“Special Court”), composed of Justice Richard Lussick, presiding, Justice Teresa Doherty and Justice Julia Sebutinde;

SEISED of the Joint Legal Part of the Defence Motion for Judgement of Acquittal Under Rule 98 filed on 13 December 2005 (“Joint Legal Part”); the Brima Motion For Acquittal Pursuant to Rule 98 filed on 12 December 2005 (“Brima Motion”); the Defence Motion for Judgement of Acquittal of the Second Accused, Brima Bazzy Kamara filed on 12 December 2005 (“Kamara Motion”) and the Kanu Factual Part Defence Motion for Judgement of Acquittal Under Rule 98 filed on 13 December 2005 (“Kanu Motion”);

NOTING the Prosecution Response to Defence Motions For Judgement of Acquittal Pursuant to Rule 98, filed on 23 January 2006 (“Response”);

NOTING the Joint Legal Reply to Prosecution Response to Defence Motions For Judgement of Acquittal, filed on 30 January 2006 (“Joint Defence Reply”); the Brima Reply to Prosecution Response to Defence Motions For Judgement of Acquittal, filed on 30 January 2006 (“Brima Reply”); the Kamara Reply to Prosecution Response to Defence Motions For Judgement of Acquittal, filed on 30 January 2006 (“Kamara Reply”); and the Confidential Kanu Reply to Prosecution Response to Defence Motions For Judgement of Acquittal, filed on 27 January 2006 (“Kanu Reply”);

MINDFUL of the Scheduling Order on Filing of a Motion for Judgement of Acquittal issued by the Trial Chamber on 30 September 2005;[1]

MINDFUL of the provisions of the Statute of the Special Court for Sierra Leone (“the Statute”), in particular Articles 1, 2, 3, 4, 5, 6 thereof and the provisions of the Rules of Procedure and Evidence of the Special Court (“the Rules”), in particular Rule 98 as amended on 14 May 2005;

MINDFUL of the provisions of international instruments on International Humanitarian Law relating to armed conflict, war crimes and crimes against humanity;

HEREBY DECIDES AS FOLLOWS based solely on the written submissions of the parties pursuant to Rule 73(A) of the Rules.

 

I.      PROCEDURAL BACKGROUND

1.             Alex Tamba Brima, Brima Bazzy Kamara and Santigie Borbor Kanu, the three Accused persons in this case, are jointly indicted and tried on a fourteen-Count Indictment that alleges offences relating to Crimes Against Humanity, Violations of Article 3 Common to the Geneva Conventions and to Additional Protocol II and other Serious Violations of International Humanitarian Law, in violation of Articles 2, 3, and 4 of the Statute of the Special Court for Sierra Leone.[2]

2.             Following indications that each of the Defence teams intended to file a motion for Judgement of Acquittal at the close of the case for the Prosecution, the Trial Chamber on 30 September 2005 issued a Scheduling Order containing guidelines for the filing of a Motion for Judgement of Acquittal pursuant to Rule 98 of the Rules.[3]

3.             The Prosecution formally closed its case on 21 November 2005 after calling fifty-nine witnesses including three expert witnesses, and tendering 80 exhibits in evidence.

4.             Following the closure of the case for the Prosecution, the Defence filed the Brima Motion and the Kamara Motion on 12 December 2005 within the time prescribed by the Trial Chamber. The Kamara Motion exceeded the page limit prescribed in the Scheduling Order by one and a half pages. The Kanu Motion and the Joint Legal Part were filed on 13 December 2005 outside that time. In its Decision on Urgent Defence Request Under Rule 54 With Respect to Filing of Motion for Acquittal[4]  the Trial Chamber accepted the late filing of both the Kanu Motion and the Joint Legal Part in the interests of justice.

5.             Similarly, in the interests of justice the Trial Chamber accepts the pleadings in the Kamara Motion. We would however, point out the correct procedure for correcting or curing a deficient filing and insist that in future, the Court Management Section should strictly comply with this procedure rather than accepting the deficient filing as they did in this case. Article 11 of the Practice Direction on Filing of Documents Before the Special Court for Sierra Leone provides as follows:

Article 11- Deficient Submissions

(A)     The Court Management Section shall be responsible for verifying compliance with the requirements laid down in Articles 4 to 9 of this Practice direction.

(B)      The Court Management Section shall inform the Party, State, organisation or person who submitted a deficient document of the deficiency and request that it be corrected. The Court Management Section shall file the document only after the mistakes have been corrected. If the corrected document is filed outside the time limits set out in the Rules as a result of the deficiency, such document shall be filed in accordance with Article 12 of this Practice Direction.” [Emphasis added]

 

II.   Applicable Standard under Rule 98 of the Rules

6.             Rule 98 of the Rules, as amended on 14 May 2005,  provides as follows:

Motion for Judgment of Acquittal

If after the close of the case for the prosecution, there is no evidence capable of supporting a conviction on one or more counts of the indictment, the Trial Chamber shall enter a judgment of acquittal on those counts.”

7.             This provision is similar to the equivalent Rule 98bis of the ICTY Rules, as amended on 8 December 2004, which reads:

Motion for Judgement of Acquittal

At the close of the Prosecutor’s case, the Trial Chamber shall, by oral decision and after hearing the oral submissions of the parties, enter a judgement of acquittal on any count if there is no evidence capable of supporting a conviction.”

8.             In our view, there is no contextual difference between “no evidence capable of supporting a conviction” and “evidence insufficient to sustain a conviction”, which was the wording used in the ICTY Rule 98bis (B) prior to the above-mentioned amendment (and is still the wording used in ICTR Rule 98bis), and in respect of which a considerable body of jurisprudence has been developed. The plainer language of the amended form of the Rule leaves no doubt that what must be considered by the Trial Chamber is not the reliability or credibility of the evidence, but merely its capability of supporting a conviction. If one possible view of the facts might support a conviction, then the Trial Chamber cannot enter a judgement of acquittal.

9.             The ICTY Trial Chamber in Oric stated that “the last amendment to Rule 98bis does not in any way change the standard of review to be applied by the Trial Chamber in its Rule 98bis exercise which therefore remains that set out and repeatedly applied by these Trial Chambers, set out in the Jelisic Appeal Judgement.”[5]

10.          In the following passage from the Jelisic Appeal Judgement, the ICTY Appeals Chamber enunciated the applicable standard of proof, which has since been applied by numerous international tribunals.[6]

“The reference in Rule 98bis to a situation in which ‘evidence is insufficient to sustain a conviction’ means a case in which, in the opinion of the Trial Chamber, the prosecution evidence, if believed, is insufficient for any reasonable trier of fact to find that guilt has been proved beyond reasonable doubt. In this respect, the Appeals Chamber follows its recent holding in the Delalic appeal judgement, where it said: “[t]he test to be applied is whether there is evidence (if accepted) upon which a reasonable tribunal of fact could be satisfied beyond reasonable doubt of the guilt of the accused on the particular charge in question”. The capacity of the prosecution evidence (if accepted) to sustain a conviction beyond reasonable doubt by a reasonable trier of fact is the key concept; thus the test is not whether the trier would in fact arrive at a conviction beyond reasonable doubt on the prosecution evidence (if accepted) but whether it could. At the close of the case for the prosecution, the Chamber may find that the prosecution evidence is sufficient to sustain a conviction beyond reasonable doubt and yet, even if no evidence is subsequently adduced, proceed to acquit at the end of the trial, if in its own view of the evidence, the prosecution has not in fact proved guilt beyond reasonable doubt.[7]

11.          With regard to the need for the Trial Chamber to assume that the prosecution evidence is true for the purpose of making a determination under the Rule,  it was said in Bagasora[8] that: “In assessing whether there is sufficient evidence upon which a reasonable trier of fact could, at the end of the trial, enter a conviction, the  Chamber must ‘assume that the prosecution’s evidence [is] entitled to credence unless incapable of belief’.[9] Accordingly, the object of the inquiry under Rule 98bis is not to make determinations of fact having weighed the credibility and reliability of the evidence; rather, it is simply to determine whether the evidence – assuming that it is true – could not possibly sustain a finding of guilt beyond reasonable doubt. That will only be the case where there is no evidence whatsoever which is probative of one or more of the required elements of a crime charged, or where the only such evidence is incapable of belief. To be incapable of belief, the evidence must be obviously incredible or unreliable; the Chamber should not be drawn into fine assessments of credibility or reliability. Needless to say, a finding that the evidence is not obviously incredible does not foreclose the Chamber, at the end of the trial, from finding that the evidence is, in fact, neither credible nor reliable.”

12.          In applying the above-mentioned test, it is not necessary under the Rule for the Trial Chamber to inquire into the sufficiency of the evidence in relation to each paragraph of the indictment. There is no need, at the Rule 98 stage, to examine whether each paragraph of the Indictment is supported by the Prosecution evidence. Rather, the evidence should be examined in relation to the counts. Rule 98 requires the Trial Chamber to determine only whether “there is no evidence capable of supporting a conviction on one or more counts of the indictment” and to enter a “judgment of acquittal on those counts”.[10]   

13.          It is important to stress, as was done by the Trial Chamber in Milosevic, that,

“a ruling that there is sufficient evidence to sustain a conviction on a particular charge does not necessarily mean that the Trial Chamber will, at the end of the case, return a conviction on that charge; that is so because the standard for determining sufficiency is not evidence on which a tribunal should convict, but evidence on which it could convict. Thus if, following a ruling that there is sufficient evidence to sustain a conviction on a particular charge, the Accused calls no evidence, it is perfectly possible for the Trial Chamber to acquit the Accused of that charge if, at the end of the case, it is not satisfied of his guilt beyond reasonable doubt.[11]

14.          The essential function of the Rule was stated by the ICTY in the cases of Strugar and Hadzihasanovic. The Trial Chambers observed as follows:

“It is worth noting the extent and frequency to which Rule 98bis has come to be relied on in proceedings before this Tribunal, and the prevailing tendency for Rule 98bis motions to involve much delay, lengthy submissions, and therefore an extensive analysis of evidentiary issues in decisions. This appears to be in contrast to the position typically found in common law jurisdictions from which the procedure is derived, While Rule 98bis is an important procedural safeguard, the object and proper operation of the Rule should not be lost sight of. Its essential function is to separate out and bring to an end only those proceedings in respect of a charge for which there is no evidence on which a Chamber could convict, rather than to terminate prematurely cases where the evidence is merely weak”.[12]

15.          The factual findings in this Decision in relation to the 14 counts in the Indictment are reached using the above-mentioned Rule 98 standard, namely, whether there is evidence, if believed, upon which a reasonable tribunal of fact could be satisfied beyond reasonable doubt of the guilt of the accused on the particular charge in question.

 

III. LOCATIONS IN THE INDICTMENT OVER WHICH THE DEFENCE HAS RAISED ISSUE

Locations in respect of which the Prosecution led no evidence:

16.          In their various submissions Defence Counsel for the three accused, cited a number of locations in the Indictment in respect of which the Prosecution failed to adduce any evidence of the crimes alleged to have been committed at those locations.[13]

17.          The Prosecution while conceding that it has not led evidence with respect to all geographic locations pleaded at the sub-District level in the Indictment and in particular in relation to the locations listed in Annex A to the Prosecution Response, argued that it is not necessary to do so in order to prove each particular Count. The Prosecution submitted that “where a single count in the Indictment charges an Accused with criminal responsibility in respect of more than one incident, the Trial Chamber is not required to make a determination of whether there is sufficient evidence to sustain a conviction for each separate paragraph of, or location in the Indictment”.[14] The Prosecution argued further that it need not prove every particular set out in the Indictment and that it had led evidence of each count which was sufficient for a reasonable tribunal of fact to convict the three Accused.[15]

18.          The Defence disputed this argument on the basis that the Prosecution is required to prove every particular set out in the Indictment so as to enable the Accused to defend themselves. Relying on the position adopted by the respective Tribunals in the cases of Prosecutor v. Sam Hinga Norman et al.,[16] and Prosecutor v. Jelisic[17], Defence Counsel argued that the Trial Chamber is duty bound under Rule 98 of the Rules, to enter a Judgment of Acquittal in favour of each of the accused in respect of each of those locations and to strike the locations from the Indictment and that, “omitting to strike these particular locations from the Indictment at this stage of the proceedings would put the Defence in the peculiar position of adducing evidence to refute the charges thereto, whilst no evidence has been presented by the Prosecution that anything did happen there. This would unquestionably lead to a delay in the procedure; whilst striking them from the Indictment would not result in any public prejudice to the Prosecution.”[18]

19.          We note that when citing locations where the various criminal acts are alleged to have taken place the language used in the particulars of the Indictment is not exhaustive and often uses the preposition “including” when referring to those locations.[19] Given the “widespread” nature of the alleged crimes, it would in our view, be impracticable for the Indictment to name exhaustively every single location throughout the territory of Sierra Leone where these criminal acts allegedly took place. We do not understand the Indictment to be limited to only those villages or locations named in the particulars. Clearly the Prosecution may (as indeed it has done in some instances) adduce evidence of alleged crimes in other villages not specified in the Indictment, in order to demonstrate the “widespread or systematic” nature of the attack on the civilian population.

20.          We note that the locations specified in Annex A to the Prosecution Response are all within Districts named in the Counts in question. We also note that in all cases, the Prosecution has led evidence in relation to all the other locations specified in the Indictment. In some instances evidence was led in relation to villages or locations that were not specified in the Indictment but which are located within the Districts pleaded. Ultimately, the Trial Chamber will take all this evidence into account in determining whether or not the Prosecution evidence in relation to each Count is capable of supporting a conviction against the accused on that count.

21.          The Trial Chamber is further of the view that under Rule 98, we are required to determine the evidence in relation to the counts of the Indictment, and to enter a judgement of acquittal, if appropriate, on a count – not on an item of particulars. We do not consider that we are empowered by Rule 98 to break a Count down to its particulars supplied in the Indictment and then to enter a judgement of acquittal in respect of any particular which has not been proved; nor would it be practical to do so. We note the Prosecution concessions with regard to various locations for which no evidence was adduced and, in our view, that is sufficient to cover the situation.

22.          The present case is not one in which the Accused can say that without a judgement of acquittal in respect of the said locations they are incapable of knowing which of the various heads of liability initially alleged they need no longer contest. We do not think that the Defence can seriously claim that, without a formal judgement of acquittal being entered in respect of the contested locations, it would be put in the position of having to lead evidence to refute the charges when there was no evidence “that anything did happen there”. Why would any party to a criminal proceeding think it necessary to lead evidence to refute something that never happened? It goes without saying that the Defence will not be expected to call evidence concerning locations about which no evidence has been given.

Locations the names of which are spelt differently:

23.          In a related issue, Defence Counsel for the accused Kanu submitted that,

“On several occasions in its Response, the Prosecution seems to assert that different names such as Mambona and Mamoma, Willifeh and Wollifeh, Mandaha and Mandaya, Wendedu and Wondedu refer to the same villages. The Defence submits that this is not the case…names of villages throughout the country or district can be almost identical, but still different places. The Prosecution has adduced no geographical evidence supporting its allegation that such names which are similar , but not identical, refer to the same location. Therefore, locations without supporting evidence referring to exactly the same village name should be struck from the Indictment.”[20]

24.          We note that Counsel raised this as a new issue in the Kanu Reply thereby technically denying the Prosecution an opportunity to respond thereto. This is a practice this Trial Chamber has consistently discouraged.

25.          Regarding this submission, we do not consider striking out the names of these locations to be an appropriate or desirable remedy. We are mindful of the fact that due to the variety of vernacular languages and dialects generally spoken in Sierra Leone and particularly by the Prosecution witnesses in this case, the names of some locations were sometimes pronounced and/or spelt differently, depending on the dialect spoken by the witness. At other times, some of the witnesses were illiterate and could not spell the names of certain locations. In the latter case the Trial Chamber often resorted to the phonetic spelling of such a location. In our view, the Defence had ample opportunity to raise any doubts about evidence relating to a given location through cross-examination of the Prosecution witnesses.

 

IV. THE “GREATEST RESPONSIBILITY” REQUIREMENT

 

Applicable Law:

 

26.          Article 1 of the Statute makes provisions for the Competence of the Special Court in the following terms:

 

Article 1- Competence of the Special Court

 

1.  The Special Court shall, except as provided in subparagraph (2), have the power to prosecute persons who bear the greatest responsibility for serious violations of international humanitarian law and Sierra Leonean law committed in the territory of Sierra Leone since 30 November 1996, including those leaders who, in committing such crimes, have threatened the establishment of and implementation of the peace process in Sierra Leone.”

 

27.          Article 15.1. of the Statute places the responsibility for prosecuting the persons mentioned in Article 1.1. on the Prosecutor. Article 15.1. states:

 

“The Prosecutor shall be responsible for the investigation and prosecution of persons who bear the greatest responsibility for serious violations of international humanitarian law and crimes under Sierra Leonean law committed in the territory of Sierra Leone since 30 November 1996. The Prosecutor shall act independently as a separate organ of the Special Court. He or she shall not seek or receive instructions from any Government or from any other source.”

 

Submissions:

 

28.          The Defence argued that the specific reference to “…persons who bear the greatest responsibility …” in Article 1(1) and Article 15 of the Statute amounts to a limitation on the Court’s jurisdiction as to which persons may or may not be prosecuted and creates an evidentiary burden to be satisfied by the Prosecution at the stage of a Motion for Judgement of Acquittal brought under Rule 98. The Defence submitted that this wording amounts to a more limited personal jurisdiction which superseded a broader formulation of “persons most responsible” suggested by the Secretary General.[21] The Defence further submitted that the Prosecution has not adduced evidence fulfilling the greatest responsibility requirement because “the evidence introduces the existence of genuine prominent individuals bearing greatest responsibility, other than the Accused.” [22]

 

29.          The Prosecution disputed that the “greatest responsibility” formulation amounts to a jurisdictional threshold and contends that the question of whether or not an Accused is one of the persons who bear the greatest responsibility for the said violations should be determined after all the evidence has been heard and is not an issue correctly addressed at the Rule 98 stage.[23]  In the alternative, the Prosecution submitted that on the evidence presently before the Trial Chamber, a reasonable tribunal of fact could find that each of the Accused is amongst those bearing the greatest responsibility for serious violations of international humanitarian law in Sierra Leone since 30 November 1996.[24]

 

Deliberations:

 

30.          The same jurisdictional issue was brought before Trial Chamber I by way of a preliminary motion under Rule 72. Trial Chamber I found that

 

“the issue of personal jurisdiction is a jurisdictional requirement, and while it does of course guide the prosecutorial strategy, it does not exclusively articulate prosecutorial discretion, as the Prosecution has submitted.” [25]

 

Trial Chamber I went on to conclude that

 

“in the ultimate analysis, whether or not in actuality the Accused is one of the persons who bears the greatest responsibility for the alleged violations of international humanitarian law and Sierra Leonean law is an evidentiary matter to be determined at the trial stage.”[26]

 

31.          In the present case, no preliminary motion was filed under Rule 72 in relation to the jurisdictional issue. We are of the view that the question of whether the reference to “persons who bear the greatest responsibility” creates a jurisdictional requirement rather than a prosecutorial discretion, is not a matter that is within the scope of Rule 98 and we will not  consider it here.  However, we can at this stage consider the category of persons contemplated by Article 1.1. and whether there is evidence according to the Rule 98 standard that would place any of the Accused within that category.

 

32.          The “most responsible” formulation suggested by the Secretary General of the United Nations was rejected by the Security Council, which insisted instead upon the “greatest responsibility” formulation. Subsequently, the Secretary General expressed the following view on the persons encompassed by Article1.1.:

 

“Members of the Council expressed preference for the language contained in Security Council resolution 1315 (2000) extending the personal jurisdiction of the Court to “persons who bear the greatest responsibility”, thus limiting the focus of the Special Court to those who played a leadership role.  However, the wording of subparagraph (a) of Article 1 of the draft Statute, as proposed by the Security Council, does not mean that the personal jurisdiction is limited to the political and military leaders only.  Therefore, the determination of the meaning of the term “persons who bear the greatest responsibility” in any given case falls initially to the prosecutor and ultimately to the Special Court itself.  Any such determination will have to be reconciled with an eventual prosecution of juveniles and members of a peacekeeping operation, even if such prosecutions are unlikely.

 

Among those who bear the greatest responsibility for the crimes falling within the jurisdiction of the Special Court, particular mention is made of “those leaders who, in committing such crimes, have threatened the establishment of and implementation of the peace process in Sierra Leone”.  It is my understanding that, following from paragraph 2 above, the words “those leaders who…threaten the establishment of and implementation of the peace process” do not describe an element of the crime, but rather provide guidance to the prosecutor in determining his or her prosecutorial strategy. Consequently, the commission of any of the statutory crimes without necessarily threatening the establishment and implementation of the peace process would not detract from the international criminal responsibility otherwise entailed for the accused.” [27] [emphasis added]

 

33.          This opinion of the Secretary General was approved by the Security Council, as is shown in the following letter from the President of the Security Council: 

 

“The members of the Council share your analysis of the importance and role of the phrase “persons who bear the greatest responsibility”.  The members of the Council, moreover, share your view that the words beginning with “those leaders who …” are intended as guidance to the Prosecutor in determining his or her prosecutorial strategy.” [28]

 

34.          Thus, the standard as understood by the Secretary General and the Security Council, and accepted by the Government of Sierra Leone, includes, at a minimum, political and military leaders and implies an even broader range of individuals. This standard is in keeping with the wording of Article 1.1. of the Statute, which states that the Special Court shall have the power to prosecute

 

“persons who bear the greatest responsibility for serious violations of international humanitarian law and Sierra Leonean law committed in the territory of Sierra Leone since 30 November 1996, including those leaders who, in committing such crimes, have threatened the establishment of and implementation of the peace process in Sierra Leone.” [emphasis added]

 

35.          The use of the word “including” implies that the category of “persons who bear the greatest responsibility” is by no means limited to “those leaders..” and that there may be other persons who fall into that category.

 

36.          Even children between 15 and 18 years of age are not excluded from the potentially broad scope of Article 1.1. Article 7 of the Statute gives the Special Court jurisdiction to prosecute children in this age group. Moreover, in his letter to the President of the Security Council dated 12 January 2001, the Secretary General expressed his belief that,

 

“Any such determination of [“persons who bear the greatest responsibility”] will have to be reconciled with an eventual prosecution of juveniles and members of a peacekeeping operation, even if such prosecutions are unlikely.”[29]

 

37.          Thus, although children accused of serious crimes may fall within the category of persons who bear “the greatest responsibility”, it would perhaps be at the lower end of the spectrum.

 

Findings:

 

38.          The evidence of the Prosecution is discussed in detail in other sections of this decision. Having examined that evidence, we find that there is evidence, if believed, capable of establishing not only that the Accused Alex Tamba Brima, Brima Bazzy Kamara, and Santigie Borgor Kanu were all senior members of the AFRC, but that, during the periods alleged in the Indictment, they were all implicated in serious crimes committed in 7 of the 11 districts of Sierra Leone.

 

39.          Given the potentially broad scope of Article 1.1. of the Statute discussed above, we find that there is evidence, if believed, that is capable of placing each of the three accused in the category of “persons who bear the greatest responsibility” for the crimes charged in the Indictment. The fact that there may be evidence indicating the existence of persons who bear “the greatest responsibility” other than the Accused, does not eliminate the possibility that the Accused may also be among those who “bear the greatest responsibility”.

 

 

V.         Elements of Crimes Against Humanity PURSUANT TO Article 2 of The Statute

40.          The crimes alleged in Count 3 (Extermination), Count 4 (Murder), Count 6 (Rape), Count 7 (Sexual slavery and any other form of sexual violence), Count 8 (Other inhumane acts), Count 11 (Other inhumane acts) and Count 13 (Enslavement) of the Indictment are proscribed and punishable under Article 2 of the Statute as “crimes against humanity”. Article 2 of the Statute which confers jurisdiction upon the Special Court to try certain offences as crimes against humanity provides as follows:

Article 2: Crimes against humanity:

 

The Special Court shall have power to prosecute persons who committed the following crimes as part of a widespread or systematic attack against any civilian population:

 

a.      Murder;

b.      Extermination;

c.       Enslavement;

d.      Deportation;

e.      Imprisonment;

f.       Torture

g.      Rape, sexual slavery, enforced prostitution; forced pregnancy and any other form of sexual violence;

h.      Persecution on political, racial, ethnic or religious grounds;

i.       Other inhumane acts.”

 

41.          Although the Statute does not define the term “crimes against humanity”, Article 2 thereof restricts the jurisdiction of the Special Court to offences committed “as part of a widespread or systematic attack against any civilian population”. However, Article 2 of the Statute differs from similar provisions found in the governing statutes of other International Tribunals. Notably, Article 2 does not specifically require such crime to have been committed “during armed conflict” (unlike its ICTY counterpart[30]), or “on national, political, ethnic, racial or religious grounds” (unlike its ICTR counterpart[31]), or with the perpetrator’s “knowledge of the attack” (unlike its ICC counterpart[32]). While recognising that the jurisprudence emanating from the various International Tribunals regarding crimes against humanity is as varied as their respective Statutes[33] and that it should be carefully applied taking into account the differences, the Trial Chamber endorses the view recently expressed by Trial Chamber I of the Special Court in Prosecutor v. Sam Hinga Norman et. al. that under the Statute of the Special Court for Sierra Leone, a crime against humanity is committed where the perpetrator commits one or more of the offences stipulated in Article 2 knowing that it is part of a widespread or systematic attack against a civilian population[34].

42.          The Trial Chamber endorses the following contextual elements of crimes against humanity pursuant to Article 2 of the Statute, namely:

(a) There must be an attack:

An attack in this context is not synonymous with “an armed conflict”[35] or “a military attack” as defined in international humanitarian law.[36] Instead it refers to a campaign, operation or course of conduct directed against a civilian population and encompasses any mistreatment of the civilian population. The attack need not involve military forces or armed hostilities[37] and may even be non-violent in nature.[38]

(b) The attack must be widespread or systematic:

The requirement that the attack must be either widespread or systematic is disjunctive and proof that the attack occurred either on a widespread basis or in a systematic manner is sufficient to exclude isolated or random acts.[39] It is not necessary that each act which occurs within the attack should itself be widespread or systematic. It is sufficient that the act or various acts form part of an attack upon the civilian population that is either “widespread” or “systematic”.[40] While isolated or random acts unrelated to the attack are usually excluded from the definition of crimes against humanity, a single act perpetrated in the context of a widespread or systematic attack upon a civilian population is sufficient to bestow individual criminal liability upon the perpetrator. Similarly, a perpetrator need not commit numerous offences to be held liable for crimes against humanity.[41] In the context of crimes against humanity, International Tribunals have defined the term “widespread” to denote “massive, frequent, large-scale action, carried out collectively with considerable seriousness and directed at multiple victims”; and the term “systematic” to denote “organised action following a regular pattern and carried out pursuant to a pre-conceived plan or policy, whether formalised or not.”[42]

(c)     The attack must be directed against a civilian population:

The term “civilian population” has been widely defined to include not only civilians in the ordinary and strict sense of the term, but all persons who have taken no active part in the hostilities, or are no longer doing so, including members of the armed forces who laid down their arms and persons placed hors de combat by sickness, wounds, detention or any other reason.[43] The targeted population must be predominantly civilian in nature and the presence of a number of non-civilians in their midst does not change the civilian character of that population.[44] The term “directed against” connotes that the civilian population must be the primary object of the attack and in determining whether or not an attack is so directed the Trial Chamber should consider, inter alia, the means and methods used in the course of the attack, the status and number of the victims, the nature of the crimes committed in course of the attack, the resistance to the assailants at the time and the extent to which the attacking force may be said to have complied or attempted to comply with the precautionary requirements of the laws of war.[45]

(d)     The acts of the accused must be part of the attack:

In order for the offence to amount to a crime against humanity, there must be a sufficient nexus between the unlawful acts of the perpetrator and the attack.[46] Although this nexus depends on the factual circumstances of each case, reliable indicia of a nexus include the similarities between the perpetrator’s acts and the acts occurring within the attack; the nature of the events and circumstances surrounding the perpetrator’s acts; the temporal and geographic proximity of the perpetrator’s acts with the attack; and the nature and extent of the perpetrator’s knowledge of the attack when he commits the acts.[47]

(e)     The accused must have knowledge that his acts constitute part of a widespread or systematic attack directed against a civilian population:

The mens rea or mental requisite for crimes against humanity is that the perpetrator of the offence must be aware that a widespread or systematic attack on the civilian population is taking place and that his action is part of this attack.[48] However, the perpetrator need not have been aware of the details of the pre-conceived plan or policy when he committed the offence and need not have intended to support the regime carrying out the attack on the civilian population.[49] The Trial Chamber adopts the above elements and supporting jurisprudence.

 

VI.      ELEMENTS OF VIOLATIONS OF ARTICLE 3 COMMON TO THE GENEVA CONVENTIONS AND OF ADDITIONAL PROTOCOL II PURSUANT TO ARTICLE 3 OF THE STATUTE

43.          The alleged crimes contained in Counts 1 (Acts of Terrorism), 2 (Collective Punishments), 5 (Violence to life, health and physical or mental well-being of persons, in particular murder), 9 (Outrages upon personal dignity), 10 (Violence to life, health and physical or mental well-being of persons, in particular mutilation), and 14 (Pillage) of the Indictment are charged under Article 3 of the Statute of the Special Court for Sierra Leone, which confers jurisdiction upon the Special Court to try certain offences as violations of Article 3 Common to the Geneva Conventions and of Additional Protocol II. Article 3 of the Statute  provides as follows:

Article 3: Violations of Article 3 Common to the Geneva Conventions and of Additional Protocol  II

The Special Court shall have the power to prosecute persons who committed or ordered the commission of serious violations of Article 3 Common to the Geneva Conventions of 12 August 1949 for the Protection of War victims, and of Additional Protocol II thereto of 8 June 1977. These violations shall include:

a.                   Violence to life, health and physical or mental well-being of persons, in particular murder as well as cruel treatment such as torture, mutilation or any form of corporal punishment;

b.        Collective punishments;

c.         Taking of hostages;

d.        Acts of terrorism;

e.        Outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault;

f.         Pillage;

g.        The passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court, affording all the judicial guarantees which are recognised as indispensable by civilised peoples; and

h.        Threats to commit any of the foregoing acts.”

 

44.          The Trial Chamber endorses the following contextual elements of Violations of Article 3 Common to the Geneva Convention and of Additional Protocol II pursuant to Article 3 of the Statute, namely:

(a)    There must have been an armed conflict whether internal or international in character, at the time the offences were allegedly committed:

Although Article 3 Common to the Geneva Conventions is expressed to apply to armed conflicts “not of an international character”, the distinction between internal armed conflicts and international conflicts is “no longer of great relevance in relation to the crimes articulated in Article 3 of the Statute.”[50] The Appeals Chamber of the ICTY has ruled that “an armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organised armed groups or between such groups within a State”.[51] The armed conflict “need not have been causal to the commission of the crime, but the existence of an armed conflict must, at a minimum, have played a substantial part in the perpetrator’s ability to commit it, his decision to commit it, the manner in which it was committed or the purpose for which it was committed”.[52]

(b)   There must be a nexus between the armed conflict and the alleged offence:[53]

The nexus requirement is satisfied where the perpetrator “acted in furtherance of or under the guise of the armed conflict.” Factors to be considered in this regard include, inter alia, “the fact that the perpetrator is a combatant; the fact that the victim is a non-combatant; the fact that the victim is a member of the opposing party; [and] the fact that the act may be said to serve the ultimate goal of a military campaign.”[54]

(c)    The victims were not directly taking part in the hostilities at the time of the alleged violation:[55]

Common Article 3 applies to “persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause”, and Additional Protocol II similarly treats the class of non-combatants as “all persons who do not take a direct part or who have ceased to take part in hostilities”.[56]

 

VII.   Elements Of Other Serious Violations of International Humanitarian Law pursuant to Article 4 of the Statute

45.          The alleged crimes contained in Count 12 (Use of Child Soldiers) of the Indictment are charged under Article 4 of the Statute of the Special Court for Sierra Leone as Other Serious Violations of International Humanitarian Law. Article 4 of the Statute provides as follows:

Article 4: Other Serious Violations of international humanitarian law

 

The Special Court shall have the power to prosecute persons who committed the following serious violations of international humanitarian law:

 

a.      Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities;

b.      Intentionally directing attacks against personnel, installations, materials, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled the protection of given to civilians or civilian objects under the international law of armed conflict;

c.       Conscripting or enlisting children under the age of fifteen years into armed forces or groups or using them to participate actively in hostilities.”

 

46.          The serious violations of international humanitarian law listed in Article 4 of the Statute possess the same chapeau requirements as war crimes (See the previous section, “Elements of Violations of Article 3 Common to the Geneva Conventions and of Additional Protocol II” paragraph 44 (a) to (c)).

 

VIII.  REVIEW OF THE COUNTS AND ISSUES RAISED

1.    Counts 1 and 2: Terrorising the Civilian Population and Collective Punishment

Introduction:

47.          The Indictment alleges that members of the AFRC/RUF subordinate to and/or acting in concert with Alex Tamba Brima, Brima Bazzy Kamara and Santigie Borbor Kanu committed the crimes charged in Counts 3 through14of the Indictment (Counts 3 – 5 allege unlawful killings, Counts 6 – 9: Sexual Violence, Counts 10 – 11: Physical Violence, Count 12: Use of Child Soldiers, Count 13: Abductions and Forced Labour, Count 14: Looting and Burning) “as part of a campaign to terrorize the civilian population of the Republic of Sierra Leone, and did terrorize that population. The AFRC/RUF also committed the crimes to punish the civilian population for allegedly supporting the elected government of President Ahmed Tejan Kabbah and factions aligned with that government, or for failing to provide sufficient support to the AFRC/RUF”.

48.          The Indictment charges that, by their acts or omissions in relation to these events, all three Accused, pursuant to Article 6.1. and/ or alternatively, Article 6.3. of the Statute, are individually criminally responsible for the crimes alleged in Counts 1 (Acts of Terrorism, Article 3(d) of the Statute) and 2 (Collective Punishments, Article 3(b) of the Statute). Articles 6.1 and 6.3. of the Statute provide as follows:

Article 6: Individual Criminal Responsibility

1.  A person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in articles 2 to 4 of the present Statute shall be individually responsible for the crime;

2.  […]

3.  The fact that any of the acts referred to in articles 2 to 4 of the present Statute was committed by a subordinate does not relieve his or her superior of criminal responsibility  if he or she knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior had failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof.”

 

1.1.  Count 1: Acts of Terrorism (Article 3.d. of the Statute)

Elements of the crime:

49.          We adopt the definition formulated by Trial Chamber I of “acts of terrorism” within the meaning of Article 3(d) of the Statute. The definition, which seems to have been accepted by both the Defence and the Prosecution,[57]  is in the following terms:

“The crime of Acts of Terrorism is comprised of the elements constitutive of Violations of Article 3 Common to the Geneva Conventions and of Additional Protocol II as well as the following specific elements:

(a)      Acts or threats of violence directed against protected persons or their property.

(b)      The offender wilfully made protected persons or their property the object of those acts and threats of violence.

(c)       The acts or threats of violence were committed with the primary purpose of spreading terror among protected persons.”[58]

Submissions:

Joint Legal Part

50.          The Joint Defence submitted that, at the least, the Prosecution had failed to submit proof of elements 2 and 3 of the above–mentioned definition.[59]

Brima Motion

51.          Counsel for Brima did not specifically respond to this Count nor to Count 2, but submitted generally that there was no evidence to prove any individual criminal responsibility nor any command responsibility on the part of Brima.

Kamara Motion

52.          Counsel for Kamara submitted that the Prosecution evidence is insufficient to support Counts 1 and 2. It was also submitted on behalf of Kamara that, in relation to Counts 1 and 2, the Prosecution has made it impossible for him to understand the nature and cause of the specific charges brought against him because the Prosecution has used the same facts and evidence “to hold him criminally and individually responsible for the alleged conduct attributed to him, as well as for the alleged acts of his subordinates and/or purported AFRC/RUF alliance in this regard”.

Prosecution Response

53.          The Prosecution, in submitting that the Joint Defence submission should be rejected, referred to the evidence of various witnesses describing “how they suffered at the hands of the AFRC” and indicating “the widespread nature of the attacks” and showing “the primary purpose of spreading terror amongst protected persons who were not involved in any hostilities.”[60]

54.          In answer to the Brima and Kamara Motions, the Prosecution submitted that the evidence relied upon to prove Counts 1 and 2 variously relates to the remaining Counts 3 to 14, and the evidence adduced therein. Based on the evidence showing the criminal responsibility of Brima for Counts 3 to 14, “which also serves as a basis for the actus reus and mens rea for Counts 1 and 2”, a reasonable tribunal of fact could conclude that there was sufficient evidence to convict Brima on Counts 1 and 2.

55.          With regard to Kamara’s claim that the Prosecution had made it impossible for him to understand the nature of the specific charges brought against him in Counts 1 and 2, the Prosecution submitted that any allegation of a defect in the form of the indictment should have been raised by preliminary motion under Rule 72 before commencement of the trial, and that a motion under Rule 98 was not the place to raise such a question.

Brima Reply

56.          Brima denied that there was sufficient evidence to convict him on Counts 1 and 2.[61]

Kamara Reply

57.          Counsel for Kamara submitted that the Prosecution arguments confer guilt on Kamara on Counts 1 and 2 for allegedly being present at a meeting at Kamagbengbe, but that his mere presence at the meeting (which is denied) is insufficient to convict him of those crimes.[62]

Kanu Reply

58.          Counsel for Kanu did not specifically reply to the Prosecution Response in relation to this Count.

Findings:

59.          Kamara’s complaint that the Prosecution has relied on the same facts and evidence as a basis for criminal liability under both Article 6.1. and Article 6.3. of the Statute is an objection based on alleged defects in the form of the indictment and should have been raised by way of preliminary motion under Rule 72. It is beyond the scope of Rule 98 and not something we are prepared to consider here.

60.          While we would agree with Counsel for Kamara that mere presence at a meeting is not sufficient, of itself, to confer guilt, we find that there is evidence which, if believed, not only establishes Kamara’s presence at the meeting in Kamagbengbe, but is also capable of supporting a conviction against him for the crimes resulting from the attack on Karina, which was planned at that meeting.[63] 

61.          Having considered the available evidence, we find that there is evidence, if believed, sufficient to satisfy a reasonable tribunal of fact beyond reasonable doubt of the guilt of each of the Accused Brima, Kamara and Kanu for the crime of Acts of Terrorism as a violation of Article 3 Common to the Geneva Conventions and of Additional Protocol II pursuant to Article 3.d. of the Statute. Accordingly, we are satisfied that, pursuant to Rule 98, the evidence is capable of supporting a conviction against each of the Accused Brima, Kamara and Kanu on Count 1 of the Indictment.[64]

 

1.2.  Count 2:  Collective Punishments (Article 3(b) of the Statute)

Elements of the crime:

62.          Again, there seems to be no dispute between the parties regarding the definition of the crime of collective punishments formulated by Trial Chamber I[65], and we adopt that definition. Trial Chamber I was of the view that the elements of the crimes were:

  1. The constitutive elements of Violations of Article 3 Common to the Geneva Conventions and of Additional Protocol II;
  2. A punishment imposed upon protected persons for acts that they have not committed; and
  3. The intent, on the part of the offender, to punish the protected persons or group of protected persons for acts which form the subject of the punishment.

Submissions:

Joint Legal Part

63.          The Joint Defence submitted that the Prosecution failed to adduce any “concrete” evidence against the accused Kanu. The Defence further submitted that there was no evidence to prove that members of the AFRC or RUF or “of those organizations acting in concert with Kanu” had committed collective punishments. In addition, the Joint Defence argued that there was no evidence “that the Accused would have done so while holding a position of superior responsibility and exercising effective control over them in relation to this crime”.[66]

Kanu Motion

64.          Counsel for Kanu argued that the Indictment does not state any specific area in the country where these crimes would have been committed, nor does it mention any specific time frame other than “the general frame of the Indictment, i.e. after 30 November 1996”.

65.          It was also submitted that there had been no evidence that Kanu bore any individual  criminal responsibility for this crime, nor had there been any evidence of any superior responsibility or joint criminal enterprise.[67]

Prosecution Response

66.          The Prosecution submitted that the evidence relied upon to prove Counts 1 and 2 variously relates to some or all of the remaining Counts 3 to 14 inclusive and that accordingly, issues as to time frame and location are answered by the specificity of paragraphs 42 to 79 inclusive of the Indictment (which set out the remaining Counts 3 to 14).[68]

67.          In addition, the Prosecution submitted that, contrary to the Defence assertions,  there is sufficient evidence of collective punishments, including evidence of superior responsibility for the crime. As an example, the Prosecution referred to the evidence of Witness TF1-334, recounting an incident in which the Accused Brima ordered a company commander to shoot some civilians. The same witness testified to a meeting in Kamagbengbe at which the Accused Brima, in the presence of the other two Accused Kamara and Kanu, ordered the destruction of Karina.[69] 

68.          In challenging the submissions made on behalf of Kanu, the Prosecution pointed out that there is the evidence of Witness TF1-167 to show that Kanu was present when orders for collective punishments were given by the Accused Brima that the village of Karina be destroyed and people killed since it was the home town of President Kabbah.[70]

69.          The Prosecution concluded with the submission that there is evidence on the basis of which a reasonable tribunal of fact could conclude that the Accused Kanu was criminally responsible pursuant to Articles 6.1. and/or 6.3. of the Statute for collective punishments.[71]

 

Findings:

70.          Having applied the Rule 98 standard in our consideration of the available evidence, we find that there is evidence, if believed, sufficient to satisfy a reasonable tribunal of fact beyond reasonable doubt of the guilt of each of the Accused Brima, Kamara and Kanu of the crime of Collective Punishments as a violation of Article 3 Common to the Geneva Conventions and of Additional Protocol II pursuant to Article 3.b. of the Statute. Accordingly, pursuant to Rule 98, we are satisfied that the evidence is capable of supporting a conviction against each of the Accused Brima, Kamara and Kanu on Count 2 of the Indictment.[72]

 

2.     Counts 3, 4 and 5: Crimes Relating to Unlawful Killings

Introduction:

71.          The Indictment alleges that members of the AFRC/RUF subordinate to and/or acting in concert with the accused Alex Tamba Brima, Brima Bazzy Kamara and Santigie Borbor Kanu, carried out “unlawful killings that routinely occurred through shooting, burning or hacking to death of victims” in various locations in the territory of Sierra Leone, including Bo District between 1to 30 June 1997[73]; Kenema District between 25 May 1997 and about 19 February 1998[74]; Kono and Kailahun Districts between 14 February 1998 and 30 June 1998[75]; Koinadugu District between 14 February 1998 and 30 September 1998[76]; Bombali District between 1 May 1998 and 30 November 1998[77]; Freetown and the Western Area between 6 January 1999 and 28 February 1999[78]; and Port Loko District between February and April 1999[79].

72.          In particular, the Indictment alleges that by their acts or omissions in relation to these events, each of the accused persons Brima Kamara and Kanu is individually criminally responsible pursuant to Article 6.1 and/or 6.3 of the Statute, for the crime against humanity of Extermination, punishable under Article 2 b. of the Statute (Count 3); in addition to or in the alternative, the crime against humanity of Murder, punishable under Article 2 a. of the Statute” (Count 4), and in addition to or in the alternative, Violence to life, health and physical or mental well-being of persons, in particular murder, a violation of Article 3 Common to the Geneva Conventions and of Additional Protocol II, punishable under Article 3.a. of the Statute (Count 5).

 

2.1.  Count 3: Extermination (Article 2.b. of the Statute)

Elements of the Crime:

73.          Extermination as a crime against humanity has been defined in international humanitarian law as “the intentional mass killing or destruction of part of a population as part of a widespread or systematic attack upon a civilian population.”[80] The Trial Chamber endorses the view expressed by the ICTR that a perpetrator may be guilty of the crime of Extermination if he kills or destroys one individual as long as that killing of that individual is part of a mass killing event;[81] and that unlike the crime of Genocide, the crime of Extermination does not require a discriminatory intent.[82] The Trial Chamber adopts the following elements of the crime against humanity of Extermination as charged under Count 3 of the Indictment, namely that-

(a)              The perpetrator intentionally caused the death or destruction of one or more persons by any means including the infliction of conditions of life calculated to bring about the destruction of a numerically significant part of a population;

(b)             The killing or destruction constituted part of a mass killing of members of a civilian population;

(c)              The mass killing or destruction was part of a widespread or systematic attack directed against a civilian population; and

(d)             The perpetrator knew or had reason to know that his acts or omissions constituted part of a widespread or systematic attack directed against a civilian population.

 

2.2.  Count 4: Murder (Article 2.a. of the Statute)

Elements of the crime:

74.          Murder as a crime against humanity has been defined in international humanitarian law as “the intentional killing of a person as part of a widespread or systematic attack upon a civilian population.”[83] The Trial Chamber adopts the following elements of the crime against humanity of Murder as charged under Count 4, namely that-

(a)              The perpetrator by his acts or omission caused the death of a person or persons;

(b)             The perpetrator had the intention to kill or to cause serious bodily harm in the reasonable knowledge that it would likely result in death;

(c)              The murder was committed as part of a widespread or systematic attack directed against a civilian population; and

(d)             The perpetrator knew or had reason to know that his acts or omissions constituted part of a widespread or systematic attack directed against a civilian population.

 

2.3.  Count 5: Murder (Article 3.a. of the Statute)

Elements of the crime:

75.          Murder as a violation of Article 3 Common to the Geneva Convention and of Additional Protocol II has been defined in international humanitarian law as “the wilful killing of a person or persons protected under the Geneva Conventions of 1949 and Additional Protocol II during an armed conflict.” [84] International law permits killing or wounding in military conflicts so long as the rules of international humanitarian law are complied with. The four Geneva Conventions and Additional Protocol II proscribe the killing or wounding of persons taking no active part in the hostilities, including the wounded or sick (Article 13 of Geneva Conventions I &II); prisoners of war or persons who have fallen into enemy hands (Article 4(A) of Geneva Convention III); those who find themselves in the hands of a hostile party to the conflict or in the territory it controls (Article 4(1) of Geneva Convention IV); and members of the armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention or any other cause (Article 3(1) common to Geneva Conventions I to IV and Article 4 (1) Additional Protocol II). Thus while Article 3 of the Statute of the Special Court does not articulate the elements of each war crime, these crimes must be construed in light of the international humanitarian law  and jurisprudence interpreting the various provisions of the Geneva Conventions as well as the peculiar circumstances of the Sierra Leonean conflict.

76.          As earlier observed, although the above rules were originally applicable to international conflict, International Tribunals have adapted them to take into account new realities including  inter-ethnic, inter-religious and other intra-state conflicts “between government authorities and organised armed groups or between such groups”.[85] The Appeals Chamber of the Special Court has ruled that the same rules are equally applicable to internal armed conflicts  such as the Sierra Leonean conflict. The Appeals Chamber observed that

“The distinction is no longer of great relevance in relation to the crimes articulated in Article 3 of the Statute as these crimes are prohibited in all conflicts. Crimes during internal armed conflict form part of the broader category of crimes during international armed conflict. In respect of Article 3 therefore, the Court need only be satisfied that an armed conflict existed and that the alleged violations were related to the armed conflict.”[86]

77.          The Trial Chamber adopts the following elements of the crime of Murder as a violation of Article 3 Common to the Geneva Convention and of Additional Protocol II, as charged under Count 5, namely that-

(a)              The perpetrator inflicted grievous bodily harm upon the victim in the reasonable knowledge that such bodily harm would likely result in death;

(b)             The perpetrator’s acts or omission resulted in the death of the victim;

(c)              The victim was a person protected under one or more of the Geneva Conventions of 1949 or was not taking an active part in the hostilities at the time of the alleged violation;

(d)             The violation took place in the context of and was associated with an armed conflict; and

(e)              The perpetrator was aware of the factual circumstances that established the protected status of the victim.

78.          Individual criminal responsibility for the crimes under Counts 3,4 and 5 is established by evidence showing that the perpetrator (or his subordinate with the superior’s knowledge) planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of the above crimes in the Districts of Bo, Kenema, Kono, Kailahun, Koinadugu, Bombali, Freetown and Western Area and Port Loko as charged in paragraphs 42 to 50 of the Indictment.[87] For purposes of this Judgement, the Trial Chamber must determine pursuant to Rule 98 of the Rules whether or not the Prosecution evidence adduced is capable of supporting a conviction against each of the three accused persons on Count 3 (Extermination) and/or Count 4 (Murder) and/or Count 5 (Murder).

 

2.4.  Submissions for Counts 3, 4 and 5

Joint Legal Part

79.          The Defence jointly submitted that the accused persons should be acquitted on all Counts alleging “crimes against humanity”, on the grounds that the Prosecution has failed to prove to the required standard two of the chapeau elements, namely that (a) attacks on the population were widespread or systematic, and (b) that the alleged offences were committed as part of the attack. [88] Counsel relied on the procedure adopted by the ICTR and ICTY in the cases of Prosecutor v. Ferdinand Nahimana et al.[89] and Prosecutor v. Dusko Sikirica et al.[90]respectively. [91]

Brima Motion

80.          In addition to the joint Defence submissions, Counsel for the accused Brima submitted that his client should be acquitted in respect of Count 3 of the Indictment (Extermination) as the Prosecution has failed to prove any of the elements of that offence to the required standard. In particular the Prosecution failed to prove (a) that a particular population was targeted, and (b) that its members were killed or otherwise subjected to conditions of life calculated to bring about the destruction of a numerically significant part of the population.[92]

81.          Counsel for Brima argued with respect to the crime of Murder, that the Prosecution failed to prove that “the victims were persons taking no active part in the hostilities”.[93] In support of this argument Counsel cited the elements of the war crime of Murder adopted by Trial Chamber I in the case of Prosecutor v. Norman et al.[94]

82.          Regarding the various locations where the unlawful killings are alleged to have taken place and mentioned in paragraphs 43 to 50 of the Indictment, Counsel submitted in relation to-

(a)             Bo District, that the Prosecution failed to prove that any of the crimes alleged in Counts 3, 4 and 5 of the Indictment was committed in Tikonko, Telu, Sembehun, Gerihun, and Mamboma.[95] In addition, the Prosecution failed to adduce any evidence of an attack generally by the AFRC or particularly by Brima in that District or to link Brima to the activities of the RUF in Bo.[96] Furthermore the evidence of Prosecution Witnesses TF1-004, TF1-053, TF1-054 in this regard is contradictory and unreliable;[97]

(b)             Kenema District, that the Prosecution failed to prove that Brima was individually criminally responsible for crimes allegedly committed in that District or that persons under his command or control took part in the alleged crimes, during the period alleged in the Indictment. The evidence of Prosecution Witnesses TF1-122, TF1-045, TF1-062 and TF1-167 in this regard is contradictory and unreliable and shows instead, that members of the RUF were in control of Kenema District during the alleged period and were responsible for the commission of the alleged crimes in that District; [98]

(c)             Kono District, that the Prosecution failed to prove that Brima or the AFRC were in command and control of Kono District after the ECOMOG intervention, or to link Brima or the AFRC to any of the atrocities committed in Kono. The evidence of Prosecution Witnesses TF1-167, TF1-033, TF1-334, TF1-045 and TF1-072 in this regard is contradictory, uncorroborated and unreliable and shows instead, that members of the RUF were responsible for the commission of the alleged crimes in that District during the period alleged in the Indictment.[99] In addition, the Prosecution failed to prove that any of the crimes alleged in Counts 3, 4 and 5 of the Indictment was committed in Foindu, Willifeh, Mortema or Biaya;[100]

(d)             Kailahun District, that the Prosecution failed to prove that Brima or the AFRC were in command and control of the perpetrators in Kailahun District during the period alleged in the Indictment, or that they were linked to the commission of the alleged crimes in that District. The evidence of Prosecution Witnesses TF1-045, TF1-167, TF1-334 and TF1-113 shows instead, that members of the RUF were in control of Kailahun District during the alleged period and were responsible for the commission of the alleged offences in that District;[101]

(e)             Koinadugu District, that the Prosecution failed to prove that Brima was individually criminally responsible for crimes allegedly committed there or that persons under his command or control took part in the alleged crimes in that District, for the duration of the war. The evidence of Prosecution Witnesses TF1-310 and TF1-167 shows instead, that members of the RUF were in control of Kailahun District during the alleged period and were responsible for the commission of the alleged offences in that District;[102]

(f)              Bombali District, that the Prosecution failed to prove that Brima was individually criminally responsible for crimes allegedly committed in that District. The evidence of Prosecution Witnesses TF1-157, TF1-167 and TF1-334 relating to crimes allegedly committed in that District is insufficient, contradictory and unreliable;[103]

(g)             Freetown and Western Area, that the evidence of Prosecution Witness TF1-021 relating to crimes allegedly committed there is insufficient, contradictory and unreliable and shows that members of the RUF were responsible for the commission of the alleged offences in that District.[104]

Kamara Motion

83.          In addition to the joint Defence submissions, Counsel for the accused Kamara submitted that his client should be acquitted in respect of Counts 3, 4 and 5 of the Indictment because the Prosecution failed to prove any of the elements of those offences to the required standard.[105] Regarding the various locations where the offences are alleged to have taken place and mentioned in paragraphs 43 to 50 of the Indictment, Counsel submitted in relation to-

(a)              Bo District, that the Prosecution failed to prove that Kamara was in Bo during the period alleged in the Indictment or that persons under his command, authority or direction, took part in the alleged crimes there. The evidence of Prosecution Witnesses TF1-004, TF1-053, TF1-054 shows instead, that members of the RUF were responsible for the alleged killings in Bo during the alleged period;[106]

(b)             Kenema District, that the Prosecution failed to prove that Kamara was in Kenema during the period alleged in the Indictment or that persons under his command, authority or direction, participated in the commission of the alleged crimes there. The evidence of Prosecution Witnesses TF1-122, TF1-045 and TF1-062 in this regard shows instead, that members of the RUF were in control of the Eastern Province and were responsible for the alleged killings in Kenema District during the alleged period; [107]

(c)              Kono District, that the Prosecution failed to prove that either Kamara or persons under his command, authority or direction, participated in the commission of alleged crimes there. While Prosecution Witnesses TF1-019, TF1-072, TF1-074, TF1-076, TF1-198, TF1-206, TF1-216, and TF1-217 did not refer to Kamara at all in their testimonies, the evidence of Prosecution Witnesses TF1-033, TF1-167 and TF1-334 in this regard is insufficient, contradictory and unreliable.[108]

(d)             Kailahun District, that the Prosecution failed to prove that Kamara was in Kailahun during the period alleged in the Indictment or that persons under his command, authority or direction, participated in the commission of the alleged crimes there. The evidence of Prosecution Witnesses TF1-045, TF1-114 and TF1-113 shows instead, that members of the RUF were in control of Kailahun District during the alleged period and were responsible for the alleged killings there;[109]

(e)              Koinadugu District, that the Prosecution failed to prove that either Kamara or persons under his command, authority or direction, participated in the commission of alleged crimes there. While Prosecution Witnesses TF1-094, TF1-133, TF1-147, TF1-209 and TF1-310 did not refer to Kamara at all in their testimonies, the evidence of Prosecution Witnesses TF1-033, TF1-153, TF1-167, TF1-334 and TF1-184 in this regard is insufficient and does not implicate Kamara or persons under his command, authority or direction in the alleged killings in that District;[110]

(f)               Bombali District, that the Prosecution failed to prove that either Kamara or persons under his command, authority or direction, participated in the commission of alleged crimes there. While Prosecution Witnesses TF1-055, TF1-157, TF1-158, TF1-179, TF1-180, TF1-199 and TF1-267 did not mention Kamara at all in their testimonies, the evidence of Prosecution Witnesses TF1-033, TF1-153, TF1-167, TF1-184 and TF1-334 in this regard is contradictory and unreliable and does not implicate Kamara or persons under his command, authority or direction in the alleged killings in that District;[111]

(g)              Freetown and Western Area, that the Prosecution failed to prove that either Kamara or persons under his command, authority or direction, participated in the commission of alleged crimes there. While Prosecution Witnesses TF1-021, TF1-024, TF1-083, TF1-084, TF1-085, TF1-098, TF1-104, TF1-169, TF1-277 and TF1-278 did not mention Kamara at all in their testimonies, the evidence of Prosecution Witnesses TF1-023, TF1-045, TF1-153, TF1-167, TF1-184, TF1-227, TF1-334 and Mr. Gibril Massaquoi in this regard is insufficient, contradictory and unreliable and does not implicate Kamara or persons under his command, authority or direction in the alleged killings in that District.[112]

(h)             Port Loko District, that the Prosecution failed to prove that either Kamara or persons under his command, authority or direction, participated in the commission of alleged crimes there. While Prosecution Witnesses TF1-021, TF1-024, TF1-083, TF1-084, TF1-085, TF1-098, TF1-104, TF1-169, TF1-277 and TF1-278 did not mention Kamara at all in their testimonies, the evidence of Prosecution Witnesses TF1-023, TF1-045, TF1-153, TF1-167, TF1-184, TF1-227, TF1-334 and Mr. Gibril Massaquoi in this regard is unreliable and does not implicate Kamara or persons under his command, authority or direction in the alleged killings in that District. The Prosecution also failed to prove that Kamara participated in a joint criminal enterprise with any person or group of persons in Port Loko District.[113]

Kanu Motion

84.          In addition to the joint Defence submissions, Counsel for the accused Kanu submitted that his client should be acquitted on the grounds that the Prosecution failed to prove that Kanu is one of the persons who “bear the greatest responsibility for serious violations of international humanitarian law and Sierra Leonean law”, as required by Article 1.1 of the Statute.[114]

85.          Counsel submitted that Kanu should be acquitted in respect of Counts 3 of the Indictment (Extermination), because the Prosecution failed to prove to the required standard (a) two of the essential elements of the crime of Extermination namely, “mass destruction” and “a plan to bring about the destruction of part of a population”, and (b) Kanu’s participation individually or as a commander or as a participant in a joint criminal enterprise, in the crime of Extermination.[115]

86.          Counsel submitted that Kanu should be acquitted in respect of Counts 4 and 5 of the Indictment because the Prosecution failed to prove that Kanu bears any individual criminal responsibility for the alleged crimes through direct participation or through superior responsibility or through a joint criminal enterprise as required by Article 6 of the Statute.[116]

87.          Regarding the various locations where offences under Counts 4 and 5 are alleged to have taken place and mentioned in paragraphs 43 to 50 of the Indictment, Counsel submitted in relation to-

(a)              Bo District, that the Prosecution failed to prove that Kanu was present in that District and in particular in Tinkoko, Telu, Sembehun, Gerihun and Mamboma, during the period alleged in the Indictment; or that such crimes were in fact committed Telu and Sembehun; or that he bears any individual criminal responsibility for the alleged crimes as a commander or as a participant in a joint criminal enterprise;[117]

(b)             Kenema District, that the Prosecution failed to prove that Kanu was present in that District or in Kenema Town during the period alleged in the Indictment or that he bears any individual criminal responsibility for the alleged crimes as a commander or as a participant in a joint criminal enterprise;[118]

(c)              Kono District, that the Prosecution failed to prove that either the RUF or the AFRC committed any of the crimes alleged under Counts 4 and 5 in Foindu, Wollifeh, Mortema and Biaya during the alleged period; or that hundreds of people were in fact killed in Kono District; or that Kanu bears any individual criminal responsibility for the alleged crimes as a commander or as a participant in a joint criminal enterprise ;[119]

(d)             Kailahun District, that the Prosecution has failed to prove that Kanu was present in that District during the period alleged in the Indictment; or that the crime of Murder was in fact committed in Kailahun; or that he bears any individual criminal responsibility for the alleged crimes as a commander or as a participant in a joint criminal enterprise ;[120]

(e)              Koinadugu District, that the Prosecution failed to prove that Kanu was present in Heremakono, Kumalu/Kamalu, Katombo and Fadugu during the period alleged in the Indictment; or that he directly participated in the commission of the alleged crimes in that District; or that he bears any individual criminal responsibility as a commander or as a participant in a joint criminal enterprise ;[121]

(f)               Bombali District, that the Prosecution failed to prove that Kanu was present in Bonyoyo/Bornoya and Mafabu during the period alleged in the Indictment; or that he directly participated in the commission of the alleged crimes in that District; or that he bears any individual criminal responsibility as a commander or as a participant in a joint criminal enterprise .[122]

Prosecution Response

88.          Counsel for the Prosecution submitted that the Prosecution evidence is sufficient to enable a reasonable tribunal of fact to conclude that all the chapeau elements of crimes against humanity alleged in Counts 3, 4, 7, 8, 11 and 13 of the Indictment have been established.[123] With regard to Count 3 of the Indictment, the Prosecution maintained that it has adduced sufficient evidence showing that the three accused persons are criminally responsible for acts of extermination committed as part of a widespread and systematic attack against a civilian population in Karina, Tombodu, Kukuna, Madina, Mange Bureh and Lunsar Town.[124] With regard to Counts 4 and 5 of the Indictment, the Prosecution submitted that it has sufficiently proved the requisite elements of those crimes.[125]

89.          While conceding that the Prosecution led no evidence of unlawful killings in the following villages, namely, Telu, Sembehun and Mamoma in Bo District; Foindu, Wollifeh and Biaya in Kono District; Heremakono, Kumalu, Katombo and Kamadugu in Koinadugu District; Mafabu in Bombali District and Tendakum in Port Loko District, Counsel for the Prosecution maintained that the Prosecution evidence of “widespread or systematic” killings of civilians in respect of all other locations mentioned in paragraphs 43-50 of the Indictment,[126] and in respect of other villages in these Districts not specifically pleaded in the Indictment[127] is capable of sustaining a conviction under Counts 3,4 and 5 against each of the accused persons, and that the weight, credibility and/or reliability of that evidence is irrelevant at this stage.[128]

90.          Regarding the various locations mentioned in paragraphs 43 to 50 of the Indictment where offences under Counts 3, 4 and 5 are alleged to have taken place, Counsel for the Prosecution submitted in relation to-

(a)              Bo and Kenema Districts, that the Prosecution adduced sufficient evidence showing that the alleged crimes took place soon after the AFRC/RUF Junta Government took over power; that perpetrators comprising members of the RUF and AFRC committed the alleged crimes against civilians in furtherance of a joint criminal enterprise; that perpetrators of the alleged crimes reported directly to the Supreme Council; and that as members of the ruling AFRC/RUF Junta and Supreme Council, each of the three accused persons was a participant in the joint criminal enterprise and is criminally responsible under Article 6 (1) and (3) of the Statute for the alleged crimes in those Districts;[129]

(b)             Kono District, that the Prosecution adduced sufficient evidence showing that after the ECOMOG intervention (the time of the alleged crimes), Brima was in Kono and gave orders to his subordinates in Tombodu for the abduction, amputation and killing of civilians and that he had knowledge of crimes committed by his subordinates during “Operation Spare No Soul” and “Operation No Living Thing”; that in addition to the villages pleaded in the Indictment, unlawful killings took place at Yardu Sandu, Gbiama, Wordu, Koidu Buma, Koidu Geiya, Bomboafoidu, Penduma and Paema; that Kamara was in charge of collecting arms and bringing them back to Superman; that he had knowledge of the unlawful killings by his subordinates that took place in Kono District; and that the perpetrators carried out the alleged crimes in furtherance of a joint criminal enterprise in respect of which each of the three accused persons participated and is criminally responsible under Article 6 (1) and (3) of the Statute;[130] 

(c)              Kailahun and Koinadugu Districts, that the Prosecution adduced sufficient evidence showing that in addition to the villages pleaded in the Indictment, unlawful killings took place at Bamukura, Yemadugu and Yiffin; that perpetrators comprising members of the RUF and AFRC committed the alleged crimes there in furtherance of a joint criminal enterprise in respect of which each of the three accused persons participated and is criminally responsible under Article 6 (1) and (3) of the Statute;[131]

(d)             Bombali District, that the Prosecution adduced sufficient evidence showing that Brima, in the presence of Kamara ordered and/or participated in the unlawful killing of civilians in Bumbuna, Kamagbengbe, Mandaha, Foroh Loko, Camp Rosos and Karina; that Kamara and Kanu participated in burning civilians to death in Karina; and that RUF/AFRC Junta troops committed the alleged crimes there in furtherance of a joint criminal enterprise in respect of which each of the three accused persons participated and is criminally responsible under Article 6 (1) and (3) of the Statute;[132]

(e)              Freetown and the Western Area, that the Prosecution adduced sufficient evidence showing that Brima was in command of the troops that invaded Freetown and that he ordered the unlawful killing of civilians in the presence of Kamara and Kanu; that Kamara participated in some of those killings; and that the perpetrators committed the alleged crimes there in furtherance of a joint criminal enterprise in respect of which each of the three accused persons participated and is criminally responsible under Article 6 (1) and (3) of the Statute;[133]

(f)               Port Loko District, that the Prosecution adduced sufficient evidence showing that each of the three accused persons is criminally responsible pursuant to Article 6 (1) and (3) of the Statute for crimes committed in that District; that Kamara commanded the AFRC troops that withdrew from Freetown and ordered them to commit the alleged crimes in the Westside Jungle, Mamah Town and Manarma; and that Kanu was present in Sumbuya and ordered the killings in Sumbuya, Masiaka and Gbinti Town.[134]

Joint Defence Reply

91.          Defence Counsel for Brima and Kamara reiterated that the Prosecution is under a legal obligation to prove every particular as set out in the Indictment and that where the Prosecution has conceded failure to adduce evidence of crimes having been committed in certain locations specified in the Indictment, the accused persons should be acquitted on those counts.[135]

Brima Reply

92.          Counsel for the accused Brima submitted that the Prosecution has failed to adduce any evidence that Brima personally committed any of the alleged crimes or that he exercised any control over the perpetrators of the alleged crimes in the Districts of Bo, Kenema, Kono, Kailahun and Bombali, and that in any event, the Prosecution evidence implicating Brima is contradictory and unreliable.[136]

Kamara Reply

93.          Counsel for the accused Kamara submitted that the Prosecution has failed to prove that Kamara directly or indirectly participated in the commission of the alleged crimes in Kono and Koinadugu Districts and in the Freetown and Western Area; and that in any event, the Prosecution evidence implicating Kamara is contradictory and unreliable.[137]

Kanu Reply

94.          Counsel for the accused Kanu reiterated that the Prosecution is under a legal obligation to prove every particular as set out in the Indictment and that where the Prosecution has conceded having led no evidence of crimes having been committed in certain locations specified in the Indictment, the Trial Chamber should strike those locations from the Indictment.[138] Similarly, where a Prosecution witness has given evidence relating to a location whose names differs phonetically from the name specified in the Indictment the latter names should be struck from the Indictment as the Prosecution has failed to prove that the two names refer to the same location.[139] Counsel reiterated that the Prosecution evidence implicating Kanu in the unlawful killing of civilians in the Districts of Bo, Kono, Bombali and Port Loko is insufficient and unreliable.[140]

 

2.5.  Findings for Counts 3, 4 and 5

General findings:

95.          The Defence argued that the elements of the crimes of Murder and Extermination as crimes against humanity overlap, to the prejudice of the Defence Case. While we agree that some of the elements of the crime of Extermination overlap those of the crime of Murder, the two crimes against humanity are not identical. As stated above, the single element that distinguishes the former from the latter is that in the case of Extermination, the murder (whether of one or more persons) “constitutes part of a mass killing of members of a civilian population”. Given that the two crimes are essentially different and are charged concurrently as well as in the alternative under Counts 3 and 4 of the Indictment, we find no merit in the Defence claim of prejudice.

96.          Regarding the Defence submission that the Trial Chamber ought to strike from the Indictment the names of certain villages in respect of which the Prosecution has failed to adduce any evidence of crimes having been committed or whose names are spelled differently in the Indictment from similar locations given by the witnesses, we note that the Prosecution indeed conceded that no evidence of crime was led with regard to certain locations named in the Indictment. These include Telu, Sembehun and Mamoma in Bo District; Foindu, Wollifeh and Biaya in Kono District; Heremakono, Kumalu, Katombo and Kamadugu in Koinadugu District; Mafabu in Bombali District and Tendakum in Port Loko District. In light of the Prosecution evidence referred to below, we find no merit in the Defence objections and refer to our earlier views contained in Part III of this Decision.

97.          Regarding the Defence submission that some of the Prosecution witnesses were contradictory and/or unreliable, the Trial Chamber can only reiterate its earlier view, namely, that the object of the inquiry under Rule 98 is not to make determinations of fact having weighed the credibility and reliability of the evidence; and that rather, it is simply to determine whether the evidence – assuming that it is true – could not possibly sustain a conviction on one or more counts.

Findings with regard to Count 3 (Extermination):

98.          The Trial Chamber finds that there is evidence, if believed, upon which a reasonable tribunal of fact could be satisfied beyond reasonable doubt, of the guilt of each of the accused Brima, Kamara and Kanu, with respect to the mass killings that took place during the periods alleged in the Indictment at various locations including[141] Tikonko Town[142] and Gerihun[143] in Bo District; at Manarma[144], Mammah Town[145], Mile Thirty-Eight[146], Songo[147], Nonkoba[148], Gberibana[149], Makolo[150], Masimera,[151] Lunsar Town[152] in Port Loko District; at Freetown[153], Kissy[154], Thomas Place[155] and Fourah Bay Area[156] in Freetown and Western Area; at Koidu Geya[157], Koidu Buma[158], Paema[159], Penduma[160], Tombodu[161], Koidu Town[162], and Buedu[163] in Kono District; at Gbendembu[164], Karina[165], Gberemantmatank (Eddie Town)[166], Rosos[167], Bat Mise, near Camp Rosos[168], Bornoya[169] in Bombali District; Kenema Town[170] and Tongo Field[171] in Kenema District; Kailahun Town[172] in Kailahun District, and Freetown[173] in the Freetown and Western Area,[174] as part of a widespread or systematic attack upon a civilian population.

99.          The Trial Chamber accordingly finds that there is evidence capable of supporting a conviction against each of the accused Brima, Kamara and Kanu for the crime against humanity of Extermination pursuant to Article 2.b. of the Statute, as charged under Count 3 of the Indictment.

Findings with regard to Count 4 (Murder):

100.       The Trial Chamber finds that there is evidence, if believed, upon which a reasonable tribunal of fact could be satisfied beyond reasonable doubt, of the guilt of each of the Accused Brima, Kamara and Kanu, with respect to the murders that took place during the periods alleged in the Indictment, at various locations including[175] Gerihun[176], Tikonko[177] in Bo District; Kenema Town[178]and Tongo Field[179] in Kenema District; Koidu Geiya[180], Paema[181], Yardu Sando[182], Wordu[183], Koidu Town[184] Tombodu[185]and Penduma[186] in Kono District; at Kailahun Town[187] in Kailahun District; at Yiffin[188], Kabala[189], Fadugu[190]and Bamukura[191], in Koinadugu District; Kamagbengbe[192], Tonkoba[193], Karina[194], Rosos[195], Mandaha/Mateboi[196],  Bornoya[197], Rotu[198], Batkanu[199], Dariya[200], Mayombo[201] and Madina Loko[202] in Bombali District,[203] as part of a widespread or systematic attack upon a civilian population.

101.       The Trial Chamber accordingly finds that there is evidence capable of supporting a conviction against each of the accused Brima, Kamara and Kanu for the crime against humanity of Murder pursuant to Article 2.a. of the Statute as charged under Count 4 of the Indictment.

Findings with regard to Count 5 (Murder):

102.       The Trial Chamber finds that there is evidence, if believed, upon which a reasonable tribunal of fact could be satisfied beyond reasonable doubt, of the guilt of each of the accused Brima, Kamara and Kanu, with respect to the murders that took place during the periods alleged in the Indictment,  at various locations including[204] Makolo[205] in Port Loko District; Kenema Town[206] and Tongo Field[207] in Kenema District; Jagbwema Fiama[208], Koidu Buma[209], Wendedu/Wondedu[210] in Kono District; Kabala[211], Kurubola[212] and Koidu Town[213] in Koinadugu District; Bumbuna[214], Mandaha[215], Foroh Loko[216] and Gbendembu[217] in Bombali District; Freetown[218], Waterloo[219],  in the Freetown and Western Area.[220]

103.       The Trial Chamber accordingly finds that there is evidence capable of supporting a conviction against each of the accused Brima, Kamara and Kanu for the crime of Murder as a violation of Article 3 Common to the Geneva Convention and of Additional Protocol II, pursuant to Article 3.a. of the Statute, as charged under Count 5 of the Indictment.

 

3.    Counts 6, 7, 8 and 9: Crimes Relating To Sexual Violence

Introduction

104.       The Indictment alleges that members of the AFRC/RUF committed widespread sexual violence against civilian women and girls including brutal rapes, often by multiple rapists, forced “marriages”, and acts of sexual violence including abduction of women and girls and use as sex slaves and/or forced into ‘marriages’ and/or subjected to other forms of sexual violence. The ‘wives’ were forced to perform a number of conjugal duties under coercion by their ‘husbands’. The sexual violence against women and girls occurred between 14 February 1998 and 30 June 1998 in Kono District, between 14 February 1998 and 30 September 1998 in Koinadugu District, between about 1 May 1998 and 31(sic) November  1998 in Bombali District, at all times relevant to the Indictment in Kailahun district, between 6 January 1999 and 28 February 1999 in Freetown and Western Area and between February 1999 and April 1999 in Port Loko District.

105.       The Indictment  charges that, by their acts or omissions in relation to these events,  pursuant to Article 6.1 and, or alternatively Article 6.3 of the Statute, Alex Tamba Brima, Brima Bazzy Kamara and Santigie Borbor Kanu are individually criminally responsible for the crimes alleged in Counts 6 (Rape, a crime against humanity punishable under Article 2.g of the Statute), Count 7 (Sexual Slavery and any other form of Sexual Violence, a crime against humanity punishable under Article 2.g of the Statute), Count 8 (Other Inhumane Act, a crime against humanity punishable under Article 2.i of the Statute), and, in addition to or in the alternative, Count 9 (Outrages upon Personal Dignity, a violation of Article 3 Common to the Geneva Conventions and of Additional Protocol II, punishable under Article 3.e of the Statute).

 

 

3.1.  Count 6: Rape (Article 2.g of the Statute)

 

Elements of the crime:

 

106.       We endorse the following definition of rape as affirmed by the ICTY Appeal Chamber in Kunarac[221]:

“the actus reus of the crime of rape in international law is constituted by: the sexual penetration, however slight:

 

(a)               of the vagina or anus of the victim by the penis of the perpetrator or any other object used by the perpetrator; or

(b)              of the mouth of the victim by the penis of the perpetrator;

 

where such sexual penetration occurs without the consent of the victim. Consent for this purpose must be consent given voluntarily, as a result of the victim’s free will, assessed in the context of the surrounding circumstances.

The mens rea is the intention to effect this sexual penetration, and the knowledge that it occurs without the consent of the victim.”

107.       In affirming this definition the ICTY Appeals Chamber emphasized that “[f]orce or threat of force provides clear evidence of  non-consent, but force is not an element per se of rape” and there are factors other than force which would render an act of sexual penetration non-consensual or non-voluntary on the part of the victim.[222]

108.       The definition of rape as a crime against humanity is therefore the above definition where the crime of rape is committed as part of a widespread or systematic attack against any civilian population, plus the other constitutive elements of crimes against humanity as set out in paragraphs 40 to 42 above.

 

 

3.2.  Count 7: Sexual Slavery and Any Other Form of Sexual Violence (Article 2.g. of the Statute)

 

 

Elements of Sexual Slavery:

109.       The elements of the crime of sexual slavery within the meaning of Article 2.g of the Statute are:

(1)             The perpetrator exercised any or all of the powers attaching to the right of ownership over one or more persons, such as by purchasing, selling, lending or bartering such a person or persons, or by imposing on them a similar deprivation of liberty.

(2)             The perpetrator caused such person or persons to engage in one or more  acts of a sexual nature.

(3)             The conduct was committed as part of a widespread or systematic attack   directed against a civilian population.

(4)             The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack against a civilian population[223]. 

 

Elements of Any Other Form of Sexual Violence:

 

110.       The elements of crimes amounting to any other form of sexual violence within the meaning of Article 2.g of the Statute are:

(1)             The perpetrator committed an act of a sexual nature against one or more persons or caused such persons to engage in an act of a sexual nature by force, or by threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or persons or another person, or by taking advantage of a coercive environment or such person or person’s incapacity to give genuine consent.

(2)             Such conduct was of a gravity comparable to the acts referred to in Art 2.g of the Statute.

(3)             The perpetrator was aware of the factual circumstances that established the gravity of the conduct.

(4)             The conduct was committed as part of a widespread or systematic attack directed against any civilian population.

(5)             The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against any civilian population.[224]

111.       The Statute does not define “any other form of sexual violence”. However, the question was addressed by the Trial Chamber in Kvocka, which came to the conclusion that: “sexual violence is broader than rape and includes such crimes as sexual slavery or molestation”[225] and “would also include such crimes as sexual mutilation, forced marriage, and forced abortion as well as the gender related crimes explicitly listed in the ICC Statute as war crimes and crimes against humanity, namely ‘rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization’ and other similar forms of violence.”[226]

 

3.3.  Count 8: Other Inhumane Act (Article 2.i of the Statute)

 

Elements of the crime:

 

112.       The elements of the crime against humanity of “other inhumane acts” are discussed under Count 11 infra.[227]

 

3.4.  Count 9: Outrages Upon Personal Dignity (Article 3.e. of the Statute)

 

Elements of the crime:

113.       We agree with what was said by the ICTY Trial Chamber in Kunarac[228] that,

“the offence of outrages upon personal dignity requires

(i)  that the accused intentionally committed or participated in an act or omission which would be generally considered to cause serious humiliation, degradation or otherwise be a serious attack on human dignity, and

(ii)  that he knew that the act or omission could have that effect.”

114.       The Appeals Chamber in Kunarac[229] went on to hold that an outrage upon personal dignity is constituted by “an act or omission which would be generally considered to cause serious humiliation, degradation or otherwise be a serious attack on human dignity.”

115.       We therefore consider that the elements of the crime of outrages upon personal dignity within the meaning of Article 3.e. of the Statute of the Special Court for Sierra Leone are:

1.                The constitutive elements of violations of Article 3 common to the Geneva Conventions and of Additional Protocol II.

2.                The accused committed an outrage upon the personal dignity of the victim.

3.                The humiliation and degradation was so serious as to be generally considered as an outrage upon personal dignity.

4.                The accused intentionally committed or participated in an act or omission which would be generally considered to cause serious humiliation, degradation or otherwise be a serious attack on human dignity.

5.                The accused knew that the act or omission could have such an effect.

116.       This definition is assisted by Article 3.e. of the Statute, which prescribes some of the acts constituting outrages upon personal dignity, viz. humiliating and degrading treatment, rape, enforced prostitution, and any form of indecent assault.

 

3.5.  Submissions for Counts 6, 7, 8 and 9

 

Joint Legal

117.       The Joint Defence submitted that the Prosecution failed to adduce any evidence to sustain a conviction for rape, sexual slavery or any other form of sexual violence, nor had it established the elements of the crime of “other inhumane act”.[230]

118.       The separate submissions made by Counsel for each Accused can be briefly summarized as follows:

Brima

119.       The Prosecution failed to adduce evidence that Brima raped, or ordered the rape of, any person, or that he knew or should have known that rape was being committed by members of the AFRC.[231] In Kono District, the evidence of certain witnesses was uncorroborated and there was no evidence that sexual abuse was widespread[232], whereas in Koinadugu  District there was no evidence against Brima of any acts or omissions in relation to sexual violence,[233] nor was there evidence that he could have acted to prevent sexual violence in that District. As regards the Bombali District, the evidence of Witness TF1-334 gave very little detail and did not mention the presence of any commander in the District.[234]

Kamara

120.       Kamara was mentioned in the evidence as being present in Kono, Koinadugu and Bombali Districts, but the Prosecution failed to show that he was involved in the commission of any form of sexual violence or that persons under his command, if any, took part in the alleged incidents.[235] On the other hand, there was no evidence that Kamara was in Kailahun District at the relevant time. Furthermore, Kailahun was under the control of the RUF and there was no evidence that Kamara, or anyone under his control was involved in the alleged crimes in any part of that district.[236]

121.       Although Kamara was allegedly present in various parts of Freetown and the Western Area, the evidence failed to show that he was involved in the commission of the crimes alleged. There was little or no evidence that Kamara, who was lawfully married, had extra-marital affairs or that he engaged in any sexual violence. In this regard, the evidence of Witness TF1-334 was weak, uncorroborated and inadequate. Equally, there was no evidence that persons under Kamara’s command, if any, took part in the incidents alleged.[237]

122.       Similarly, although Kamara was allegedly present the Port Loko District, the evidence failed to show that he was involved in the commission of offences of sexual violence. In particular, the evidence of witness TF1-334 was “weak, isolated, uncorroborated and tainted with ill-motive”.[238] Further, there was no evidence that persons under his command, if any, took part in the incidents alleged, nor was there evidence to show that he participated in a joint criminal enterprise.

Kanu

123.       The Prosecution did not present any evidence to support the crime of rape or of sexual slavery of hundreds of women and girls, or any evidence of inhumane acts or outrages upon human dignity at AFRC/RUF camps such as Superman camp, Kissi-town (or Kissy Town), Tomendeh, Fokoiya, Wondedu, Tombodu or Kissi-town (or Kissi Town) in the Kono District; or in Hemakono in the Koinadugu Distric), or in Mandaha in the Bombali District.[239] 

124.       Nor was there any evidence of rape or sexual slavery or outrages against personal dignity in Kailahun District by the AFRC/RUF at any time relevant to the Indictment.[240] Alternatively, there was no evidence showing that Kanu bore individual criminal responsibility for the crime of sexual slavery, nor was there any mention of his presence in Kailahun District.[241] Similarly, there was no evidence that Kanu bore any form of individual criminal responsibility for the crime of rape in Freetown and the Western Area, nor that “hundreds of women and girls were subjected to sexual slavery”[242] throughout the area. There was also no evidence that Kanu bore any form of criminal responsibility for the crime of sexual slavery or any other form of sexual violence in Port Loko District.[243]

125.       In conclusion, no evidence was adduced to show that Kanu bore superior responsibility or had been involved in a joint criminal enterprise, or bore any  other form of individual criminal responsibility pursuant to Articles 6.1. or 6.3. of the Statute for the crimes of rape, sexual slavery, other forms of sexual violence or outrages upon human dignity in any of the districts cited in the Indictment.[244]

Prosecution Response

126.       The submissions of the Prosecution in response to the Defence submissions are briefly summarized as follows:

127.       The evidence showed that in addition to the regularly described forms of sexual and gender specific violence frequently suffered by women in conflict situations, Sierra Leonean women were forced into marriages and thus were involuntarily converted into becoming what has commonly been referred to as “bush wives”[245] There was evidence in this regard of the widespread and systematic nature of the attack and the awareness of the Accused of the circumstances establishing the gravity of the conduct.[246]

128.       The Joint Defence Motion made no submission as to the evidence led with respect to the elements of the crime of outrages against personal dignity”.[247]

129.       In regard to the Brima submissions, the Prosecution accepted that no evidence of sexual violence had been led with respect to the villages of Tombendeh, Fokoiya, Superman Camp/Kissi TownCamp, Kissi Town, Tombodu (Kono District); Heremakono (Koinadugu District) or Mandaha (Bombali District) but submitted that there is sufficient evidence in relation to all other locations pleaded.[248]

130.       In relation to the Kono District, evidence of sexual violence given by  witnesses who were unable to name the group responsible, could still incriminate Brima in circumstances where there was other evidence showing the presence of Junta troops in that area.[249] Further, the evidence of sexual violence in Kono was part of a pattern that was repeated throughout Sierra Leone wherever Junta troops were present. The evidence was of rapes by soldiers during attacks on villages, rape being the modus operandi of such attacks.[250] Consequently, Brima was guilty of the counts charged in respect of Kono.

131.       In the Koinadugu and Bombali Districts, there was evidence of rape, sexual slavery, women being stripped naked on the orders of Brima,  and of many of these women being handed to the Accused Kanu following the attack.[251]

132.       The Brima Motion made no submission in respect to the crime bases of Kailahun District, Freetown and Western Area, and Port Loko District, and therefore it was assumed that Brima accepted the sufficiency of the evidence with respect to them.[252]

133.       As regards the Kamara submissions, there was clear evidence that during the time that Kamara acted as commander in the Kono District, the crimes outlined in Counts 6 to 9 were committed by AFRC/RUF troops, “entailing the responsibility of the Second Accused”.[253]

134.       Furthermore, there was evidence that Kamara was present in the Koinadugu District during the period stated in the indictment, particularly in Kabala Town. The evidence of Witness TF1-153 was that Kamara failed to respond to complaints that men under his command raped a civilian. Witness TF1-209  testified that she was raped by two members of the Junta forces, and that many other women and girls, some as young as 9 years were raped, and that armed soldiers committed acts of sexual violence against them. Witness TF1-133 gave evidence of acts of sexual slavery and forced marriage in the district. The evidence therefore showed that rape and sexual violence were carried out by AFRC soldiers in Koinadugu District, and that Kamara was part of a joint criminal enterprise with those soldiers and others”.[254]

135.       The evidence also established the widespread and systematic nature of sexual violence in the Bombali District. For instance, there was the evidence of witness TF1-334 that in Karina, soldiers under the command of Kamara forcibly raped and captured female civilians.[255]

136.       There was also the evidence of Witness TF1-144 that in Kailahun District AFRC soldiers had raped women and tried to force them into marriage, and that no Junta commander ever interfered. There was also expert evidence that forced marriage was practised in Kailahun.[256]

137.       In Freetown and the Western Area there was evidence that rapes were committed at State House,  that women and girls were abducted for sexual purposes during the retreat from Freetown by Kamara and his troops, and that women were forced into ‘marriages’ with rebel soldiers.[257]

138.       Witness TF1-334 testified that in Port Loko, Kamara raped a woman after ordering that she be beaten and locked in a rice box.[258]

139.       With regard to the Kanu submissions, while it was accepted that no evidence of sexual violence had been led in respect of the villages of Tomendeh, Fokoiya, SupermanCamp/Kissi Town Camp, Kissi Town in Kono District, there was sufficient evidence in relation to all other locations.

140.       As to the Defence submission that no evidence that hundreds of women and girls were raped in the Kono District, Witness TF1-217 gave evidence “indicating mass rape in Koidu Town” and  Witness TF1-133 testified to the capture and rape of female civilians in Kumala. This evidence “indicates that this was a common practice amongst soldiers and as a consequence hundreds of women were in fact raped at numerous locations in Kono District at the material time.”[259]

141.        While it was conceded that no evidence was led of rape in Heremakono in Koinadugu District,  there was sufficient evidence of rape in all other locations in that District. Further, the accused Kanu was Chief of Staff in Mansofinia and had responsibility for the fate of the women there.[260] Kanu was also a member of the Supreme Council in the AFRC/RUF Junta, which made him a leadership figure within the body that governed the country at that time.[261] 

142.        Evidence had been presented that over 200 incidences of rape occurred in the Bombali District between about 1 May and 31(sic) November 1998. There was evidence to show that in the town of Port Loko, Kanu disregarded a law that rebels should not rape civilians. Further, there was evidence that Kanu had total control of all women in Rosos.[262]

143.       There was also evidence of reports of rape in the Kailahun District and evidence that Kanu bore superior responsibility and participated in a joint criminal enterprise.[263]

144.       With regard to Freetown and the Western Area, there was evidence of rapes committed at State House, including by Kanu himself. Captured women and girls were brought to State House and were forced to have sex with the soldiers. Kanu was present and knew or had reason to know that women and children were being raped. In fact, there was evidence that the most beautiful women were reserved for him. Also, there was evidence that Kanu led soldiers from Wellington to Allen Town, and that soldiers were seen raping women and children.[264]

145.       In relation to the Kailahun District, and to Freetown and the Western Area, there was evidence of sexual slavery and other forms of sexual violence upon which a reasonable trier of fact could convict Kanu on the basis of his participation in a joint criminal enterprise.[265]

146.       Furthermore, with respect to the Districts of Kono, Koinadugu, Bombali and Port Loko, the evidence was sufficient for a reasonable trier of fact to convict Kanu for the crime of sexual slavery and sexual violence pursuant to Article 6.1. and Article 6.3. of the Statute. In particular, in Port Loko in 1999, Kanu was present in Masiaka, where he held a position of high command, when rape and other forms of sexual violence were committed by rebel soldiers against civilians.[266]

147.       In respect to Counts 8 and 9, a reasonable trier of fact could convict Kanu on the basis of his participation in a joint criminal enterprise in relation to all Districts mentioned in the Indictment.[267]

148.       The Prosecution accepted that no evidence of sexual violence had been led with respect to the following villages: Tomendeh, Fokoiya or Superman Camp/Kissi Town Camp (Kono District); Heremakono (Koinadugu District).[268]

149.       The Prosecution disputed the submission in the Kanu Motion that, in relation to Counts 8 and 9, there was no evidence with respect to the Kono District, Koinadugu District, Bomabali District and Kailahun District, of the criminal responsibility of Kanu under Articles 6.1. and 6.3. The Prosecution stated that in the Koinadugu District, Witness TF1-209 was told by Kanu that he had been slitting the bellies of pregnant women and that the witness, who had been raped, was lucky that her belly had not been slit. Further, there was the evidence that in Bombali, Kanu disregarded a law that rebels should not rape civilians, and in Freetown Kanu amputated limbs and ordered others to do the same. Regarding the remaining districts, the Prosecution relied on the evidence of joint criminal enterprise.[269]

Brima Reply

150.       Counsel for Brima replied that the Prosecution has to prove the accused’s actions were directly or indirectly part of a widespread and systematic sexual attack on the civilian population, and concluded that the Prosecution “has not led any evidence to prove that the First Accused in (sic) criminally liable for sexual violence against the civilian population.” [270]

151.       In relation to the Kono District, Counsel for Brima argued that it was important for a witness to identify whether the perpetrators were from the AFRC or RUF, because the two groups had different commands, and Brima could not be responsible for “acts committed by the RUF.”[271] It was also submitted that only one witness testified that Brima was indirectly involved in sexual violence, but that evidence was not corroborated.

152.       With respect to the Koinadugu District, Counsel for Brima submitted that the evidence showed that the perpetrators were controlled by persons superior in command to Brima.[272]

Kamara Reply

153.       Counsel for Kamara submitted that it was clear from the evidence that Kamara was not in command in the Kono District and cannot be criminally responsible for the crimes committed there.[273]

154.       With respect to the crimes alleged to have been committed in Koinadugu District, Counsel for Kamara submitted that the evidence of Witness TF1-153 was contradictory and based on hearsay, whereas other witnesses did not mention Kamara’s presence there at all. It was further submitted that there was no evidence that Kamara took part in crimes of sexual violence or that he was part of a joint criminal enterprise.[274]

Kanu Reply

155.       Counsel for Kanu, referring to the Kono District, submitted that the  Prosecution had neither  accepted nor refuted the Defence statement that there was no evidence of rape at Wondedu and therefore the Prosecution must be taken to acquiesce to it.[275] Counsel for Kanu also re-stated that  the  Prosecution had not provided evidence that hundreds of women and girls were raped in the Kono District or that this was a common practice amongst the soldiers.[276]

156.       Referring to the Koinadugu District, Counsel for Kanu submitted that the Prosecution has not provided evidence of rapes in Monsafinia.[277]

157.        Under the heading Counts 8 – 11,  Counsel for Kanu argued that Witness TF1-209 was told by Kanu only that “they” were slitting the bellies of pregnant women, not that he himself was slitting bellies; therefore there was no evidence capable of supporting a conviction.[278]

 

3.6.  Findings for Counts 6, 7, 8 and 9

Findings for Count 6 (Rape):

158.       As stated above, it is not the function of the Trial Chamber under Rule 98 to make determinations of fact having weighed the credibility and reliability of the evidence. Hence submissions that the evidence lacks corroboration, or is contradictory and uncorroborated, are not appropriate under Rule 98.

159.       We note that the Prosecution has conceded that there was no evidence of rape in respect of the following locations pleaded in the indictment: Tomendeh, Fokoiya, Superman Camp/Kissi Town Camp, Kissi Town or Tombodu (Kono District); Heremakono (Koinadugu District); or Mandaha (Bombali District).

160.       However, we find that there is other evidence[279] with respect to the to the Districts of Kono,[280] Koinadugu,[281] Bombali[282], Kailahun,[283] Freetown and Western area[284] and Port Loko[285] and in exhibits[286] upon which,  if believed, a reasonable tribunal of fact could be satisfied beyond reasonable doubt of the guilt of each of the Accused Brima, Kamara and Kanu for the crime of rape as a crime against humanity pursuant to Article 2.g of the Statute. Accordingly, we are satisfied that the evidence is capable of supporting a conviction against each of the Accused Brima, Kamara and Kanu on Count 6 of  the Indictment.

 

Findings for Count 7 (Sexual Slavery and Any  Other Form of Sexual Violence):

161.       We note that the Prosecution has conceded that it has not led evidence in respect of the following locations pleaded in the indictment: Tomendeh, Fokoiya, Superman Camp/Kissi Town Camp, Kissi Town or Tombodu (Kono District); Heremakono (Koinadugu District); or Mandaha (Bombali District).

162.       However, we find that there is other evidence[287] with respect to the Districts of Kono,[288] Koinadugu,[289] Bombali,[290] Kailahun,[291] Freetown and Western area[292] and Port Loko[293] and in exhibits[294] upon which,  if believed, a reasonable tribunal of fact could be satisfied beyond reasonable doubt of the guilt of each of the Accused Brima, Kamara and Kanu for the crime of sexual slavery as a crime against humanity pursuant to Art 2.g of the Statute. Accordingly, we are satisfied that the evidence is capable of supporting a conviction against each of the Accused Brima, Kamara and Kanu on Count 7 of the Indictment.

163.       Having found that there is evidence capable of supporting a conviction on Count 7, we are not required under Rule 98 make any further examination of the evidence relating to this Count. However, in order to avoid any confusion, we consider it appropriate to state our view on whether or not there are  facts relating to the crime referred to as “any other form of sexual violence”  which are also capable of supporting a conviction on Count 7.

164.       Accordingly, having examined the available evidence[295], we further find that there is other evidence with respect to the to the Districts of Kono,[296] Koinadugu[297], Bombali[298], Kailahun[299], Freetown and Western Area[300] and Port Loko[301] and in exhibits[302] upon which,  if believed, a reasonable tribunal of fact could be satisfied beyond reasonable doubt of the guilt of each of the Accused Brima, Kamara and Kanu for the crime referred to as “any other form of sexual violence” as a crime against humanity pursuant to Art 2.g of the Statute. Accordingly, we are satisfied that the evidence is capable of supporting a conviction against each of the Accused Brima, Kamara and Kanu on Count 7 of the Indictment. [303]

 

Findings for Count 8 (Any Other Inhumane Acts):

165.       “Other inhumane acts” is a residual category of crimes against humanity that encompasses acts not specifically enumerated in Articles 2.a. to h. of the Statute. As held by Trial Chamber 1, “in the light of the separate and distinct residual category of sexual offences under Article 2(g), it is impermissible to allege acts of sexual violence (other than rape, sexual slavery, enforced prostitution, forced pregnancy) under Article 2(i) since ‘other inhumane acts’, even if residual, must logically be restrictively interpreted as covering only acts of a non-sexual nature amounting to an affront to human dignity.”[304]We consider that there is evidence which falls within that category relating to the abductions of women and girls and forcing them to submit to ‘marital’ relationships and to perform various conjugal duties.

166.       The acts described in such evidence[305] took place in the Districts of Kono,[306] Koinadugu,[307] Bombali[308], Kailahun,[309] Freetown and Western Area[310] and Port Loko[311] and is also referred to in exhibits.[312] Applying the Rule 98 standard, we find that upon such evidence a reasonable tribunal of fact could be satisfied beyond reasonable doubt of the guilt of each of the Accused Brima, Kamara and Kanu for the crime of other inhumane acts as a crime against humanity pursuant to Art 2.i of the Statute. Accordingly, we are satisfied that the evidence is capable of supporting a conviction against each of the Accused Brima, Kamara and Kanu on Count 8 of the Indictment.

 

Findings for Count 9 (Outrages Upon Personal Dignity):

167.       The crimes charged under Counts 6 to 8 as crimes against humanity are charged cumulatively or in the alternative under Count 9 as war crimes, that is, as violations of Article 3 Common to the Geneva Conventions and of Additional Protocol II, punishable under Article 3.e. of the Statute. As such, the constitutive elements of war crimes require that there be a nexus to an armed conflict and that the victims of the crimes be protected persons in the sense that that they were not directly taking part in the hostilities at the time of the alleged crimes.

168.       We are satisfied that there is evidence, if believed, that the crimes described in Counts 6 to 8 were committed in the course of an armed conflict against victims who were not directly taking part in the hostilities. We have already found that there is evidence, if believed, capable of supporting a conviction on Counts 6 to 8. Based on the evidence found under Counts 6 to 8, we further find that there is evidence upon which, if believed, a reasonable tribunal of fact could be satisfied beyond reasonable doubt of the guilt of each of the Accused Brima, Kamara and Kanu for the crime of outrages upon personal dignity, as a violation of Article 3 Common to the Geneva Conventions and of Additional Protocol II, pursuant to Article 3.e. of the Statute. Accordingly, we are satisfied that the evidence is capable of supporting a conviction against each of the Accused Brima, Kamara and Kanu on Count 9 of the Indictment.

169.       We are not required at this stage to decide whether a crime was committed in the context of a widespread or systematic attack against any civilian population or in relation to an armed conflict against protected persons.

 

4.    Counts 10 And 11: Crimes Relating To Physical Violence

Introduction:

170.       The Indictment alleges that members of the AFRC/RUF subordinate to and/or acting in concert with the accused Alex Tamba Brima, Brima Bazzy Kamara and Santigi Borbor Kanu  committed widespread physical violence, including mutilations, against the civilian population in various locations in the territory of Sierra Leone including Kono District[313] between14 February 1998 and 30 June 1998; Kenema District[314] between 25 May 1997 and about 19 February 1998; Koinadugu District[315] between 14 February 1998 and 30 September 1998; Bombali District[316] between 1 May 1998 and 30 November 1998; Freetown and the Western Area[317] between 6 January 1999 and 28 February 1999; and Port Loko District[318] between February and April 1999.

171.       In particular, the Indictment alleges that by their acts or omissions in relation to these events, each of the accused persons Brima Kamara and Kanu is individually criminally responsible pursuant to Article 6.1 and/or 6.3 of the Statute, for the crime of Violence to life, health and physical or mental well-being of persons, in particular mutilation, a violation of Article 3 Common to the Geneva Conventions and of Additional Protocol II, punishable under Article 3.a. of the Statute (Count 10) and in addition to or in the alternative, the crime against humanity of ‘other inhumane acts’ punishable under Article 2 i. of the Statute (Count 11).

 

4.1.  Count 10: Mutilation (Article 3.a. of the Statute)

Elements of the crime:

172.       Mutilation as a violation of Article 3 Common to the Geneva Convention and of Additional Protocol II occurs where the perpetrator intentionally cause death or seriously endangers the physical or mental health of a person by permanently disabling or disfiguring or removing an organ or appendage of that person, during an international or internal armed conflict. The Trial Chamber adopts the following elements of the crime of Mutilation as a violation of Article 3 Common to the Geneva Convention and of Additional Protocol II, as charged under Count 10, namely that,

(a)              The perpetrator subjected the victim to mutilation, in particular by permanently disfiguring the victim, or by permanently disabling or removing an organ or appendage of the victim;

(b)             The perpetrator’s conduct caused death or seriously endangered the physical or mental health of the victim;

(c)              The perpetrator’s conduct was neither justified by the medical, dental or hospital treatment of the victim, nor carried out in the victim’s interest;

(d)             The victim was a person protected under one or more of the Geneva Conventions of 1949 or was not taking an active part in the hostilities at the time of the alleged violation;

(e)              The violation took place in the context of and was associated with an armed conflict; and

(f)               The perpetrator was aware of the factual circumstances that established the protected status of the victim.

 

4.2.  Count 11: Other Inhumane Acts (Article 2.i. of the Statute)

Elements of the crime:

173.       Various International Criminal Tribunals have described the phrase “Other inhumane acts” as a residual category of crimes against humanity that encompasses acts not specifically enumerated but which are similar to in gravity or severity (but not necessarily of the same genus as) those specifically listed in their respective Statutes.[319] In other words, such acts must have caused great suffering or serious injury to the physical or mental health or human dignity of the victim[320] and must have been committed as part of a widespread or systematic attack upon a civilian population.[321] Acts such as mutilation, severe beatings, forced disappearances, forced prostitution have been held to constitute “other inhumane acts”.[322] In the case of the Special Court for Sierra Leone, the phrase “other inhumane acts” refers to those violations not expressly listed in Article 2 a. to h. of the Statute, but which are similar in gravity to those listed in that Article and which were committed as part of a widespread or systematic attack upon a civilian population.[323]

174.       The Trial Chamber adopts the following elements of the crime against humanity of “other inhumane acts” as charged under Count 11, namely that-

(a)              The perpetrator inflicted great suffering, or serious injury to body or to mental or physical health, by means of an inhumane act;

(b)             The act was of a gravity similar to the acts referred to in Article 2 a. to h. of the Statute;

(c)              The perpetrator was aware of the factual circumstances that established the character or gravity of the act;

(d)             The act was committed as part of a widespread or systematic attack directed against a civilian population; and

(e)              The perpetrator knew or had reason to know that his acts or omissions constituted part of a widespread or systematic attack directed against a civilian population.

175.       Individual criminal responsibility for each of the above crimes is established by evidence showing that the perpetrator (or his subordinate with the superior’s knowledge) planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of the above crimes in the Districts of Kenema, Kono, Koinadugu, Bombali, Freetown and Western Area and Port Loko as charged in paragraphs 58 to 64 of the Indictment.[324] For purposes of this Judgement, the Trial Chamber must determine pursuant to Rule 98 of the Rules whether or not the Prosecution evidence adduced is capable of supporting a conviction against each of the three accused persons on Count 10 (Mutilation) and/or Count 11 (Other inhumane acts).

4.3.  Submissions for Counts 10 and 11

Joint Legal Part

176.       The Defence jointly submitted that the Prosecution has failed to prove to the required standard, the essential elements of the crimes under Count 10 or Count 11.

Brima Motion

177.       In addition to the joint Defence submissions, Counsel for the accused Brima submitted that his client should be acquitted in respect of Counts 10 and 11 of the Indictment as the Prosecution has failed to adduce any evidence to show that Brima or persons under his command, authority or direction, took part in the alleged physical violence in Kono District, Kenema Town and District, Kailahun District and Eastern Province. Instead, the evidence of Prosecution Witnesses TF1-072, TF1-074, TF1-198 and TF1-206 points to members of the RUF as being responsible for the alleged physical violence.[325]

Kamara Motion

178.       In addition to the joint Defence submissions, Counsel for the accused Kamara submitted that his client should be acquitted in respect of Counts 10 and 11 of the Indictment as the Prosecution has failed to adduce any evidence to show that Kamara or persons under his command, authority or direction, took part in the alleged physical violence. Instead, the evidence of Prosecution Witnesses TF1-062, TF1-122, TF1-045, TF1-072, TF1-216 and TF1-206 pointed to members of the RUF as being responsible for the alleged physical violence.[326]

Kanu Motion

179.       In addition to the joint Defence submissions, Counsel for the accused Kanu submitted that his client should be acquitted in respect of Counts 10 and 11 of the Indictment as the Prosecution adduced no evidence of Kanu’s presence in the Districts of Bo, Kenema and Kailahun during the periods alleged in the Indictment, nor of his alleged criminal liability under Articles 6 (1) or 6 (3) of the Statute in those Districts.[327] Counsel further submitted in relation to-

(a)              Kono District, that the Prosecution adduced no evidence of the alleged crimes having been committed in the villages of Kaima/Kayima or Wondedu, nor of Kanu’s presence in those villages, nor of his participation in the alleged crimes elsewhere in that District;[328]

(b)             Kenema District, that the Prosecution adduced no evidence of the alleged beatings or mistreatment of civilians in custody as alleged;[329]

(c)              Koinadugu District, that the Prosecution adduced no evidence of Kanu’s presence in the village of Konkoba/ Kontoba during the period alleged in the Indictment, nor of his participation in the alleged crimes elsewhere in that District;[330]

(d)             Bombali District, that the Prosecution adduced no evidence of Kanu’s presence in the villages of Lohondi, Malama and Mamaka during the period alleged in the Indictment, nor of his participation in the alleged crimes elsewhere in that District;[331]

(e)              Port Loko District, that the Prosecution failed to specify in the Indictment the names of villages where the alleged crimes took place and adduced no evidence of Kanu’s participation in the alleged crimes.[332]

Prosecution Response

180.       The Prosecution conceded that it led no evidence of the crimes charged under Counts 10 and 11 having been committed in the villages of Konkoba in Koinadugu District, Lohondi, Malam and Mamaka in Bombali District. The Prosecution maintained however, that the evidence of the alleged crimes adduced in respect of all the other Districts specified in the Indictment, proves all the elements of the crimes to the required standard and is capable of supporting a conviction under Counts 10 and 11 against each of the accused Brima, Kamara and Kanu.[333]

181.       The Prosecution submitted in relation to the charge of “other inhumane acts” (Count 11) that the Prosecution evidence sufficiently demonstrates the mutilations and other forms of physical violence were  carried out by the Junta troops as part of the widespread attack upon the civilian population throughout the territory of Sierra Leone, and that these crimes were committed pursuant to a regular pattern and preconceived plan to terrorise the civilian population and “punish” them for their perceived sympathy towards the ECOMOG troops or towards President Kabbah. The evidence further demonstrates that each of the three accused persons had knowledge of the general context in which their acts occurred and of the nexus between those acts and the context.[334]

182.       Regarding the various locations mentioned in paragraphs 59 to 64 of the Indictment where offences under Counts 10 and 11 are alleged to have taken place, the Prosecution submitted in relation to-

(a)              Kono District, that the evidence  of Prosecution Witnesses including TF1-085, TF1-074, TF1-072, TF1-198, TF1-216, TF1-206, TF1-334, TF1-167, TF1-272 and TF1-045 demonstrates that the physical violence against civilians in this District, including amputations and the carving of the letters “AFRC” and “RUF” into the bodies of civilians, was part of a consistent pattern of criminal behaviour by the Junta troops to punish civilians for their betrayal of the Junta and perceived support of the ECOMOG troops and President Kabbah. The Prosecution evidence further demonstrates that the AFRC and RUF were working together in a joint criminal enterprise to establish Kono District as a Junta stronghold and that by virtue of their leadership positions and membership in the ruling AFRC/RUF Junta and Supreme Council, each of the three accused persons was a participant in the joint criminal enterprise and is criminally responsible under Article 6 (1) and/or (3) of the Statute for the alleged crimes in that District;[335]

(b)             Kenema and Koinadugu Districts, that the evidence  of Prosecution Witnesses including TF1-122 and TF1-209 demonstrates that the crimes charged under Counts 10 and 11 were carried out in these Districts by members of the AFRC/RUF during the period of the Junta Government and that by virtue of their leadership positions and membership in the ruling AFRC/RUF Junta and Supreme Council, each of the three accused persons was a participant in the joint criminal enterprise and is criminally responsible under Article 6 (1) and/or (3) of the Statute for the alleged crimes in those Districts; [336]

(c)              Bombali District, that the evidence  of Prosecution Witnesses including TF1-153, TF1-157, TF1-334, TF1-033, TF1-158, TF1-167 and TF1-199 demonstrates that Brima ordered the commission of the alleged crimes, while Kamara and Kanu commanded the troops that committed the alleged crimes in that District. Furthermore the evidence shows that by virtue of their leadership positions and membership in the ruling AFRC/RUF Junta and Supreme Council, each of the three accused persons was a participant in the joint criminal enterprise and is criminally responsible under Article 6 (1) and/or (3) of the Statute for the alleged crimes in that District;[337]

(d)             Freetown and Western Area, that while Brima and Kanu did not contest the sufficiency of the Prosecution evidence relating to the crimes charged under Counts 10 and 11, that the evidence  of Prosecution Witnesses including TF1-334, TF1-167 implicates each of the three accused persons in the commission of the alleged crimes and as a participant in the joint criminal enterprise;[338]

(e)              Port Loko District, that the evidence of Prosecution Witnesses including TF1-023, TF1-253, TF1-167, TF1-085 and TF1-334 demonstrates that the physical violence against civilians, including amputations was part of a widespread or systematic attack upon the civilian population by the Junta troops to punish civilians for their perceived betrayal of the Junta and sympathy towards the ECOMOG troops and to President Kabbah. Consequently, as members of the ruling AFRC/RUF Junta and Supreme Council, each of the three accused persons was a participant in the joint criminal enterprise and is criminally responsible under Article 6 (1) and (3) of the Statute for the alleged crimes in that District.[339]

Brima Reply

183.       Counsel for the accused Brima reiterated submissions in relation to Counts 10 and 11 that the Prosecution has failed to adduce any evidence that Brima was personally involved in the commission of the alleged crimes or that he exercised any control over the perpetrators of the alleged crimes in the Districts of Kenema and Kono.[340]

Kamara Reply

184.       Counsel for the accused Kamara reiterated submissions in relation to Counts 10 and 11 that the Prosecution has failed to adduce sufficient evidence of Kamara’s criminal liability under Articles 6(1) and/or 6(3) of the Statute for crimes allegedly committed in Kono District.[341]

Kanu Reply

185.       Counsel for the accused Kanu reiterated submissions in relation to Counts 10 and 11 that the Prosecution evidence is insufficient and incapable of sustaining a conviction against Kanu in respect of these two Counts.[342]

4.4.  Findings for Counts 10 and 11

General findings:

186.       Regarding the Defence submission that the Trial Chamber ought to strike from the Indictment the names of certain villages in respect of which the Prosecution has failed to adduce any evidence of crimes having been committed or whose names are spelled differently in the Indictment from similar locations given by the witnesses, we note that the Prosecution indeed conceded that no evidence of crime was led with regard to certain locations named in the Indictment. These include Konkoba (or Kontoba) in Koinadugu District; Lohondi, Malam and Mamaka in Bombali District. In light of the Prosecution evidence referred to below, we find no merit in the Defence objections and refer to our earlier views contained in Part III of this Decision.

Findings with regard to Count 10 (Mutilation):

187.       The Trial Chamber finds that there is evidence, if believed, upon which a reasonable tribunal of fact could be satisfied beyond reasonable doubt, of the guilt of each of the accused Brima, Kamara and Kanu, with respect to the mutilations (including amputations of limbs and ears) that took place during the periods alleged in the Indictment at various locations including[343] Tombodu,[344] Small Sefadu[345] Bombafoidu,[346] Yaya,[347] Manikala,[348] Penduma[349] in Kono District;[350] Kabala[351] in Koinadugu District;[352] Karina,[353] Gbendembu,[354] Gbomsamba,[355] Rosos,[356] Kathanta and Dareha,[357] Kamagbo,[358] Mayogbo,[359] Mabaka,[360] Batkanu,[361] Mateboi,[362] Bornoya,[363] Madogbo,[364] Madina Loko[365] in Bombali District;[366] Masiaka,[367] Manarma,[368] Mamamah,[369] Mile Thirty-Eight,[370] in Port Loko District;[371] Allen Town,[372] Kissy,[373] Mammy Yoko,[374] Parsonage Street[375] and Freetown[376] in the Freetown and the Western Area.[377]

188.       The Trial Chamber accordingly finds that there is evidence capable of supporting a conviction against each of the accused Brima, Kamara and Kanu for the crime of Mutilation as a violation of Article 3 Common to the Geneva Convention and of Additional Protocol II pursuant to Article 3.a. of the Statute, as charged under Count 10 of the Indictment.

Findings with regard to Count 11 (Other inhumane acts):

189.       The Trial Chamber finds that there is evidence, if believed, upon which a reasonable tribunal of fact could be satisfied beyond reasonable doubt, of the guilt of each of the accused Brima, Kamara and Kanu, with respect to ‘other inhumane acts’ (including cannibalism, maiming, burning, carving or tattooing of the letters AFRC/RUF, disembowelment and grievous wounding of victims) during the periods alleged in the Indictment at various locations including[378] Koidu Geya,[379] Bomboafoidu,[380] Foendor,[381] Kayima,[382] Koidu[383] in Kono District; Kenema Town[384] in Kenema District; Rosos[385] in Bombali District; Kumala/Kumalu[386] in Koinadugu District, Masiaka[387] in Port Loko District  and Freetown.[388]

190.       Accordingly, the Trial Chamber finds that there is evidence capable of supporting a conviction against each of the accused Brima, Kamara and Kanu for the crime against humanity of ‘Other inhumane acts’ pursuant to Article 2.i. of the Statute, as charged under Count 11 of the Indictment.

 

 

5.    Count 12: Crimes Relating to Child Soldiers

 

Introduction:

191.       The Accused are charged in Count 12 with the crime of conscripting or enlisting children under the age of 15 years into armed forces or groups, or using them to participate actively in hostilities, a serious violation of international humanitarian law punishable under Article 4.c of the Statute.  The Indictment alleges that at all relevant times throughout the Republic of Sierra Leone, AFRC/RUF routinely conscripted, enlisted and/or used boys and girls under the age of 15 to participate in active hostilities. Many of these children were first abducted, then trained in AFRC/RUF camps in various locations throughout the country, and thereafter used as fighters.

192.       The Indictment charges that, by their acts or omissions in relation to these events, Alex Tamba Brima, Brima Bazzy Kamara and Santigie Borbor Kanu pursuant Article 6.1. and, or alternatively, Article 6.3. of the Statute, are individually criminally responsible for the said crimes.

Elements of the Crime:

193.       Article 4.c. of the Statute states:

The Special Court shall have the power to prosecute persons who committed the following serious violations of international humanitarian law:

c.  Conscripting or enlisting children under the age of 15 years into armed forces or groups or using them to participate actively in hostilities.

194.            We endorse the finding of Trial Chamber I that the elements of the crime are as follows:

i.           The perpetrator conscripted or enlisted one or more persons into an armed force or group or used one or more persons to participate actively in hostilities;

ii.          Such person or persons were under the age of 15 years;

iii.        The perpetrator knew or should have known that such person or persons were under the age of 15 years;

iv.         The conduct took place in the context of and was associated with an armed conflict.

v.          The perpetrator was aware of factual circumstances that established the existence of an armed conflict. [389]

 

195.       In addition to these elements, there are the other constitutive elements of Article 4 crimes mentioned earlier.

Submissions:

Brima Motion

196.       Counsel for Brima submitted that there was no evidence that Brima individually or in concert with others ordered the abduction of children or their use as soldiers; the evidence suggested that the victims were either under the control of other people, or that the identification of the accused was mistaken, or that the evidence was unreliable.[390]

 

Kamara Motion

197.       Counsel for Kamara submitted that there were “difficulties in appreciating the proofs of the evidence […] to do with age verification” and “the knowledge by the Accused that the child was under the stipulated age.” Counsel concluded that there was no reference to Kamara in any of the evidence led by the Prosecution.[391]

 

Kanu Motion

198.       Counsel for submitted that the evidence did not suggest any evidentiary link to Kanu:

“[at] the least with respect to the charge of “routinely conscripting, enlisting or using boys and girls under the age of 15 to participate in active hostilities”.  In this regard a clear distinction should be made between said actions on the one hand and alleged training of individuals in locations.”[392] 

199.       Counsel added that the word “ routinely” formed an integral part of the indictment and “no evidence has been adduced for this element on part of Accused Kanu”.

 

Prosecution Response

200.       The Prosecution submitted that there was evidence that Brima knew that children were being used. According to the Prosecution, there was evidence that children were trained in camps in Kono and Rosos when Brima was present, and that muster parades of Small Boy Units were held in front of him. Brima also distributed children who had been abducted to various commanders.[393] Moreover, Brima gave command of the 4th. Battalion, which had about 13 Small Boy Units to Witness TF1-167.[394] The Prosecution further submitted that the same evidence also implicated Kamara.

201.       Referring to Kanu’s submissions, the Prosecution stated that the use of the word ‘routinely’  in an indictment did not elevate it to the status of an element of the offence and that it went to the degree of culpability rather than to criminal liability[395]. The Prosecution added that the evidence of witnesses TF1-334 and TF1-167 showed that Kanu was in charge of training children at Camp Rosos and had five or ten children under his command at Benguema[396]

 

Brima Reply

202.       Counsel for Brima stated that he “stands by the arguments put forward” in submissions and “maintains (the accused Brima) bears no criminal responsibility in respect of the factual allegations enumerated in count 12”[397]

 

Kamara Reply

203.       Counsel for Kamara restated his earlier submission that the Prosecution had failed to produce any evidence that Kamara had participated in the crimes.[398]

 

Kanu Reply

204.       Counsel for the accused Kanu did not make any reply to this count.

 

Findings:

205.       We find that there is evidence upon which, if believed, a reasonable tribunal of fact could be satisfied beyond reasonable doubt of the guilt of each of the accused Brima, Kamara and Kanu for the crime of conscripting or enlisting children under the age of 15 years into armed forces or groups or using them to participate actively in hostilities as a serious violation of international humanitarian law pursuant to Article 4.c. of the Statute. Accordingly, we are satisfied that the evidence is capable of supporting a conviction against each of the Accused Brima, Kamara and Kanu under Count 12  or the Indictment.[399]

 

6.    Count 13: Abductions and Forced Labour

Introduction:

206.       Count 13 alleges the crime of enslavement by abductions and forced labour, not sexual slavery. Although sexual slavery can lead to a conviction for enslavement, the crime of sexual slavery has been charged separately under Count 7 and is dealt with elsewhere in this Decision.

207.       The Accused are charged under Count 13 with enslavement, a crime against humanity, punishable under Article 2.c. of the Statute, in that “[at] all times relevant to this Indictment, AFRC/RUF engaged in widespread and large scale abductions of civilians and use of civilians as forced labour. Forced labour included domestic labour and use as diamond miners.”

208.       The Indictment alleges that the abductions and forced labour included the districts of Kenema, Kono, Koinadugu, Bombali, Kailahun, Freetown and the Western Area and Port Loko. It is alleged that the Accused, by their acts or omissions in relation to these events, pursuant to Article.6.1 and, or alternatively, Article.6.3 of the Statute, are individually criminally responsible for the said crimes.

 

Elements of the crime:

209.       In Kunarac, the ICTY Trial Chamber held that  “enslavement as a crime against humanity in customary international law consisted of the exercise of any or all of the powers attaching to the right of ownership over a person”[400] (actus reus), while the mens rea of the violation consists in the intentional exercise of such powers”.[401]

210.       The Kunarac Trial Chamber held that “[u]nder this definition, indications of enslavement include elements of control and ownership; the restriction or control of an individual’s autonomy, freedom of choice or freedom of movement; and, often, the accruing of some gain to the perpetrator. The consent or free will of the victim is absent. It is often rendered impossible or irrelevant by, for example, the threat or use of force or other forms of coercion; the fear of violence, deception or false promises; the abuse of power; the victim’s position of vulnerability; detention or captivity, psychological oppression or socio-economic conditions. Further indications of enslavement include exploitation; the exaction of forced or compulsory labour or service, often without remuneration and often, though not necessarily, involving physical hardship; sex; prostitution; and human trafficking.”[402]

211.       The ICTY Appeals Chamber further clarified this definition by finding that “lack of consent” is not an element of the crime of enslavement, although it may be a significant issue in terms of evidence of the status of the alleged victim.[403]

212.       The definition set forth in Kunarac was later reiterated in Krnojelav, in which it was stated that enslavement as a crime against humanity was the “exercise of any or all of the powers attaching to the right of ownership over a person. The actus reus of enslavement is the exercise of those powers, and the mens rea is the intentional exercise of such powers.”[404] 

213.       In Krnojelav, the allegations concerned enslavement for the purpose of forced labour.[405] It was held by the Chamber that to establish forced labour constituting enslavement, the Prosecutor must demonstrate that “the Accused (or persons for whose actions he is criminally responsible) forced the detainees to work, that he (or they) exercised any or all of the powers attaching to the right of ownership over them, and that he (or they) exercised those powers intentionally.”[406]

214.       The ICC Preparatory Commission Elements of Crimes, designed to assist ICC judges in their interpretation and application of the subject matter articles of the Rome Statute, sets forth the following version of the elements of the crime of enslavement:

1.                “The perpetrator exercised any or all of the powers attaching to the right of ownership over one or more persons, such as by purchasing, selling, lending or bartering such a person or persons, or by imposing on them a similar deprivation of liberty.

2.                The conduct was committed as part of a widespread or systematic attack directed against a civilian population.

3.                The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population.”[407]

215.       It can be seen that this definition incorporates the definition given in Kunarac with the common elements of crimes against humanity. As such, we find that it is the correct definition to apply to the crime of enslavement charged under Article 2.c. of the Statute.

Submissions:

Joint Legal Part

216.       The Joint Defence submitted that the evidence “falls short in proving all three elements”. It was argued by the Joint Defence that the factors adopted by the Appeals Chamber in Kunarac have not been established, i.e. “control over someone’s movement, control of physical environment, psychological control, measures taken to prevent or deter escape, force, threat of force or coercion, duration, assertion of exclusivity, subjection to cruel treatment and abuse, control of sexuality and forced labour”.[408] The Joint Defence claimed that since these factors had not been established by the Prosecution, the Motion for Acquittal should be granted as to Count 13.[409]

Brima Motion

217.       Counsel for Brima submitted that the Prosecution had failed to adduce sufficient evidence of abductions and forced mining in the Kenema District. It argued that the evidence given by Witness TF1-045, a former RUF combatant, about mining in Tongo Field in the Kenema District was unreliable. Further, Witness TF1-122 demonstrated that he had no knowledge of what had happened at Tongo except for what he had been told, and his evidence was also unreliable.[410]

Kamara Motion

218.       Counsel for Kamara submitted that the Prosecution did not lead any direct or indirect evidence against Kamara to prove the offence of enslavement in both Kenema and Kailahun Districts. It was further submitted that Kamara was never present in the said Districts during the period alleged in the Indictment. Also, there was mention of Kamara being allegedly present in “Koinadugu District, in particular Kabala Town, Bombali, Port Loko and Kono Districts respectively as well as Freetown and the Western Area during the period above stated”, but the evidence does not indicate that Kamara was directly or otherwise involved in the commission of the stated crimes.[411]

Kanu Motion

219.       With respect to the crimes of enslavement alleged to have occurred in the locations named in the Indictment, Counsel for Kanu submitted in relation to-

(a)   Kenema District, that there was no evidence of Kanu’s individual criminal responsibility for the crime of enslavement in this District. The evidence was that Kanu was not even present in the District during the whole of the indictment period;

(b)   Kono District that there was no evidence of domestic labour and mining in Tombodu between 14 February 1998 and January 2000 and no evidence of enslavement in Tomendeh or Wondedu between 14 February 1998 and January 2000;

(c)    Koinadugu District, that there was no evidence of enslavement in Heremakono or Kamadugu between 14 February and 30 September 1998. Also, there was no evidence of abduction in Koinadugu (town) in the same period;

(d)   Kailahun District, that there was no evidence that Kanu had any individual criminal responsibility for the crime of enslavement in this District, nor that he was even present in the District during the whole of the indictment period;