SPECIAL COURT FOR SIERRA LEONE


 

TRIAL CHAMBER II


 
Before:
Justice Julia Sebutinde, Presiding Judge
Justice Richard Lussick
Justice Teresa Doherty
Registrar:
Herman von Hebel, Acting Registrar
Date:
20 June 2007
Case No.:
SCSL-04-16-T

 
PROSECUTOR
Against
Alex Tamba BRIMA
Brima Bazzy KAMARA
Santigie Borbor KANU

 

JUDGEMENT


 
Office of the Prosecutor:

 
Defence Counsel for Alex Tamba Brima:
Karim Agha
Christopher Staker
Charles Hardaway
Lesley Taylor
Melissa Pack
Vincent Wagona
Shyamala Alagendra

 
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
Agibola E. Manly-Spain
Carry Knoops

 

I. INTRODUCTION

1. This Judgement is rendered by Trial Chamber II of the Special Court for Sierra Leone composed of Justice Julia Sebutinde, Presiding Judge, Justice Richard Lussick and Justice Teresa Doherty.

A. The Special Court For Sierra Leone

2. The Special Court was established for the prosecution of 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.[1] The Special Court is an independent hybrid Court established under an Agreement between the United Nations and the Government of Sierra Leone[2 ]pursuant to UN Security Council Resolution 1315 (2000) of 14 August 2000.[3] The Special Court is governed by its Statute[4 ]and by its Rules of Procedure and Evidence.[5]

3. In particular, the Statute empowers the Special Court to prosecute persons responsible for the commission of certain crimes against humanity;[6] certain serious violations of Article 3 Common to the 1949 Geneva Conventions on the Protection of War Victims and of the 1977 Additional Protocol II thereto;[7] certain other serious violations of international humanitarian law;[8 ]and certain crimes under Sierra Leonean law.[9]

B. Procedural History

4. The initial Indictments against the Accused Alex Tamba Brima, Brima Bazzy Kamara and Santigie Borbor Kanu each contained 17 counts of crimes against humanity, violations of Article 3 common to the Geneva Conventions and of Additional Protocol II and other serious violations of international humanitarian law.[10]

5. On 27 January 2004, having ordered a joint trial of the Accused Brima, Kamara and Kanu, Trial Chamber I ordered the Prosecution to file two consolidated indictments and that new case numbers be assigned to the two joint cases.[11] On 5 February 2004, the Prosecution filed a new indictment (“Consolidated Indictment”) in compliance with the Order of Trial Chamber I.[12]

6. On 9 February 2004, the Prosecution applied for leave to amend the Consolidated Indictment and add a count of “other inhumane acts” pursuant to Article 2(g) of the Statute for acts of “forced marriage”. Moreover, the Prosecution moved for other modifications of the Consolidated Indictment.[13]

7. On 6 May 2004, Trial Chamber I granted the proposed amendments to the Consolidated Indictment, which included a new Count 8 of “other inhumane acts”, along with other amendments (“Amended Consolidated Indictment”).[14]

8. On 17 January 2005 the President of the Special Court assigned the trial of the Accused Brima, Kamara and Kanu to the newly created Trial Chamber II.[15]

9. On 7 February 2005, the Prosecution requested leave to withdraw Counts 15-18 from the Amended Consolidated Indictment. On 15 February 2005, the Trial Chamber granted the Prosecution’s request.[16] The operative indictment in this case, the Further Amended Consolidated Indictment, was filed on 18 February 2005.

10. The Prosecution case-in-chief commenced on 7 March 2005 and closed on 21 November 2006. The Prosecution called 59 witnesses. The Defence case-in-chief started on 5 June 2006 and finished on 26 October 2006. Final briefs were filed on 1 December 2006 and Closing Arguments were heard on 7 and 8 December 2006. The Trial Chamber sat 176 trial days.

C. The Accused

11. According to the Prosecution Alex Tamba Brima was born on
23 November 1971 in the village of Yaryah in Kono District.[17][17] Brima claims that he was born at Wilberforce Village in Freetown. The Accused also denies that his first name is ‘Alex’ and he was ever nicknamed ‘Gullit.’[18 ]Brima further asserts that he joined the SLA in June 1991 and retired from the Army in 2001, having risen to the rank of Corporal. According to the Prosecution, Brima joined the Army in April 1985 and attained the rank of Staff Sergeant during the AFRC Government period.[19]

12. Brima Bazzy Kamara was born on 7 May 1968 or 1970 at Wilberforce Village in Freetown.[20] On 20 May 1991, he joined the SLA. According to the Prosecution, he was promoted to the rank of Staff Sergeant during the period of AFRC rule. Kamara asserts that he rose only to the rank of Sergeant. According to the Kamara Defence, the Accused served as a military driver during the years before the coup in May 1997.[21]

13. Santigie Borbor Kanu was born in March 1965 either in the county of Maforki in the Port Loko District, or in Freetown. On 27 November 1990, he joined the SLA where he was allegedly promoted to the rank of Sergeant during the period of AFRC rule.[22]

D. Summary of the Charges

14. The Indictment comprises a total of 14 counts. All three Accused are charged with seven counts of crimes against humanity, namely: murder, extermination, rape, sexual slavery and other forms of sexual violence, other inhumane acts (including physical violence) and enslavement (Counts 3, 4, 6, 7, 8, 11 and 13 respectively). Furthermore, all three Accused are charged with six counts of violations of Article 3 Common to the Geneva Conventions and of Additional Protocol II, namely: acts of terrorism, collective punishments, violence to life, health and physical or mental well-being of persons (in particular murder and mutilation of civilians), outrages upon personal dignity and pillage (Counts 1, 2, 5, 10, 9, and 14 respectively).

15. In addition, all three Accused are charged an ‘other serious violation of international humanitarian law’, namely with conscripting or enlisting children under the age of 15 years into armed forces or groups, or using them to participate actively in hostilities (Count 12).

16. The crimes underlying the 14 counts of the Indictment are alleged to have taken place in various locations throughout the territory of Sierra Leone within the time period from 25 May 1997 to January 2000.

17. The Accused are charged with acts of terrorism, collective punishment and conscripting or enlisting child soldiers throughout the entire territory of Sierra Leone at all times relevant to the Indictment.

18. The Prosecution alleges that the Accused – by holding senior positions within the AFRC fighting forces during the entire period of the Indictment – are individually responsible for the crimes committed by the forces, pursuant to Article 6(1) of the Statute and, in addition or alternatively, pursuant to Article 6(3) of the Statute. The Prosecution further submits that the Accused participated in a joint criminal enterprise with the Revolutionary United Front of Sierra Leone, with the objective to take any actions in order to gain and exercise political power and control over the territory of Sierra Leone, resulting in the commission of the crimes mentioned above.

II. ALLEGED DEFECTS IN THE FORM OF THE INDICTMENT

19. All three Accused object to the lack of particularisation in the Indictment and assert that this prejudiced the Accused in the preparation and presentation of their case.[23] The Prosecution argues that alleged defects in the form of the Indictment brought by the Accused Kamara and Kanu by way of preliminary motion pursuant to Rule 72(B)(ii) of the Rules have been adjudged prior to the commencement of trial,[24] and are res judicata and not open to fresh litigation at the end of the proceedings when no exceptional circumstances are shown.[25]

A. History of Indictments[26]

20. All Accused were initially individually charged. The initial indictment against Brima was approved on 7 March 2003,[27] Kamara’s on 28 May 2003[28] and Kanu’s on 16 September 2003.[29] The indictments were later consolidated,[30] amended[31] and further amended.[32]

21. Only the Kanu and Kamara Defence filed timely motions pursuant to Rule 72(B)(ii) of the Rules. A preliminary motion filed by the Accused Brima less than one week before the trial started was dismissed for having been submitted out of time.[33]

22. On 19 November 2003, Trial Chamber I dismissed the objections by the Kanu Defence with regard to the initial indictment with the exception of the use of language “included but not limited to” and “but not limited to these events”, which it found defective. The Kanu Defence objected to the specificity of the initial indictment regarding different forms of individual criminal responsibility and regarding various counts.[34]

23. On 1 April 2004, Trial Chamber I dismissed the objections by the Kamara Defence with regard to the initial indictment with the exception of the use of language “included but not limited to” and “but not limited to these events”, which it found defective. These objections included (i) lack of precision in the form of the initial indictment, (ii) failure to particularise the mode of participation under Article 6(1) of the Statute, (iii) lack of specificity for joint criminal enterprise, and (iv) failure to particularise responsibility as a superior.[35] The Kamara and Brima Defence raised similar issues in their Pre-Trial Briefs.[36]

B. Scope of Review

24. Preliminary motions pursuant to Rule 72(B)(ii) are the primary instrument through which alleged defects in an indictment should be raised,[37] and the Defence should be limited in raising such objections at a later stage for tactical advantage.[38] In the instant case it cannot, however, be said that the Defence only raised the challenges on the form of the indictment in their Final Trial Brief for tactical purposes. The procedural history, as shown above, demonstrates that the Defence did in fact constantly complain about the vagueness of the Indictment throughout the trial, either pursuant to Rule 72(B)(ii), the Pre-Trial Brief, the Motion for Judgement of Acquittal and the Final Trial Brief. The Trial Chamber further notes that the Rules do not afford a right to appeal a decision pursuant to Rule 72(B)(ii), once a Trial Chamber has decided on such motion.[39] The Trial Chamber is not precluded from reviewing in this Judgement whether shortcomings in the form of the Indictment have actually resulted in prejudice to the rights of the Accused.[40] It is within the discretion of a Trial Chamber to reconsider a decision previously made if a clear error of reasoning has been demonstrated or if it is necessary to do so to prevent an injustice.[41] In fact, Rule 26bis provides that a Trial Chamber “shall ensure that a trial is fair and expeditious and that proceedings before the Special Court are conducted in accordance with the Agreement, the Statute and the Rules, with full respect for the rights of the accused [...]”.

25. In the interests of judicial economy the Trial Chamber will limit this review to (1) issues which require clarification in light of evidentiary, procedural, or legal developments arising during the course of the trial, and (2) those exceptional circumstances where a failure to consider an issue is necessary to prevent an injustice.[42]

26. Therefore, due to the paramount importance of ensuring that the integrity of proceedings are conducted in a fair manner, the Trial Chamber will review the applicable pleadings principles.[43]

C. Applicable Pleading Principles

27. Article 17(4)(a) of the Statute provides that an accused is entitled to be “informed promptly and in detail [...] of the nature and cause of the charge against him or her.” Rule 47(C) of the Rules specifies that an “indictment shall contain, and be sufficient if it contains, the name and particulars of the suspect, a statement of each specific offence of which the named suspect is charged and a short description of the particulars of the offence.” These provisions translate into an obligation on the part of the Prosecution to plead the material facts underpinning the charges with enough detail to inform an accused clearly of the charges against him so that he or she may prepare a defence, but not the evidence by which such material facts are to be proven.[44]

28. Where the scale of the crimes renders it impractical to require a high degree of specificity regarding, for example, the identity of the victims, the Prosecution does not need to identify every victim in the indictment in order to meet its obligation of specifying the material facts of the case.[45]

29. The materiality of a particular fact depends on the nature of the Prosecution case and on the context of the alleged criminal conduct with which the accused is charged.[46] Whether the identity of the victims, the time and place of the events and the description of those events are material facts depends upon the proximity of the accused to those events and, therefore, the form of individual responsibility with which the accused is charged.[47] To that end, a distinction has been drawn in the jurisprudence between

(i) individual criminal responsibility under Article 6(1) in a case where it is not alleged that the accused personally carried out the acts underlying the crimes charged;

(ii) individual criminal responsibility under Article 6(1) where it is alleged that the accused personally carried out the acts in question; and

(iii) individual criminal responsibility under Article 6(3).

30. With regard to the first category, the precise details to be pleaded as material facts are the particular form of participation of the accused, not the acts of those persons for whose acts the accused is alleged to be responsible.[48] Depending on the particular form of participation under Article 6(1), the material facts to be pleaded may vary.[49]

31. Where it is alleged that an accused personally carried out the underlying criminal acts in question, the Prosecution is required to set out “with the greatest precision” the identity of the victims, the means by which the acts were committed and the time and place of the events.[50] But even in cases where personal participation is alleged, the nature or scale of the alleged crimes may render it impracticable to particularise the identity of every victim or the dates of commission.[51]

32. An allegation of superior responsibility requires that the Prosecution specify not only what is alleged to have been the superior’s own conduct, but also what is alleged to have been the conduct of those persons for which the superior bears responsibility, subject to the Prosecution’s ability to provide those particulars.[52]

D. Discussion

33. The Defence challenge the Indictment on a number of grounds. The Trial Chamber will address these objections in this Chapter only as far as they concern the pleading of the Indictment. Objections raised with regard to the applicable law[53] and the sufficiency of the evidence[54] are matters which will be discussed elsewhere in this Judgement.

1. Particulars of Victims and Locations

(a) Victims

34. The Brima Defence complains that the Indictment is impermissibly vague, in particular that no specific dates are given, when and where the crimes occurred and that no particulars were provided with regards to identity of the victims.[55]

35. This issue has been adjudicated in a decision on a preliminary motion by the Accused Kamara:

The Trial Chamber [...] finds no merit in the allegations for the following reasons. [...] [T]here is no applicable magical formula as to the degree of specificity required for the purposes of pleading “an indictment alleging criminality in the international domain as distinct from criminality in the domestic sphere.” It is precisely a matter of common sense and what is reasonable, having regard to “the scale or magnitude on which the acts or events allegedly took place” and “the totality of the circumstances surrounding the commission of the alleged crimes”.[56]

36. Although this ruling applies only in relation to the Accused Kamara, the Trial Chamber notes that this finding is supported by the Kupreškić Appeal Judgement stating that

[...] in a case where the Prosecution alleges that an accused personally committed the criminal acts, the material facts, such as the identity of the victim, the time and place of the events and the means by which the acts were committed, have to be pleaded in detail. Obviously, there may be instances where the sheer scale of the alleged crimes “makes it impracticable to require a high degree of specificity in such matters as the identity of the victims and the dates for the commission of the crimes”.[footnotes omitted]

Such would be the case where the Prosecution alleges that an accused participated, as a member of an execution squad, in the killing of hundreds of men. The nature of such a case would not demand that each and every victim be identified in the indictment. Similarly, an accused may be charged with having participated as a member of a military force in an extensive number of attacks on civilians that took place over a prolonged period of time and resulted in large numbers of killings and forced removals. In such a case the Prosecution need not specify every single victim that has been killed or expelled in order to meet its obligation of specifying the material facts of the case in the indictment. Nevertheless, since the identity of the victim is information that is valuable to the preparation of the defence case, if the Prosecution is in a position to name the victims, it should do so.[footnotes omitted][57]

Therefore, the Trial Chamber holds that the above decision, being a statement of law, applies to the other Accused and will not revisit this issue.[58]

(b) Locations

37. The Trial Chamber notes that the Prosecution has led a considerable amount of evidence with respect to killings, sexual violence, physical violence, enslavement and pillage which occurred in locations not charged in the indictment.[59] While such evidence may support proof of the existence of an armed conflict or a widespread or systematic attack on a civilian population, no finding of guilt for those crimes may be made in respect of such locations not mentioned in the indictment.[60] As the Appeals Chamber has stated:

the overriding duty of a Prosecutor – what determines, in fact, his or her professional ability – is to shape a trial by selecting just so many charges that can most readily be proved and which carry a penalty appropriate to the overall criminality of the Accused. In national systems, this is reflected in Prosecution practices of selecting specimen charges or proceeding only on certain counts of a long Indictment. In international courts, where defendants may be accused of command responsibility for hundreds if not thousands of war crimes at the end of a war that has lasted for years, the need to be selective in deciding which charges to include in a trial Indictment is a test of Prosecution professionalism. In this respect, the Trial Chamber must oversee the Indictment, in the interests of producing a trial which is manageable.[61] [emphasis added]

Moreover, the jurisprudence of international criminal tribunals makes it clear that an accused is entitled to know the case against him and is entitled to assume that any list of alleged acts contained in an indictment is exhaustive, regardless of the inclusion of words such as “including”, which may imply that other unidentified crimes in other locations are being charged as well.[62]

38. In light of the above, the Trial Chamber will not make any finding on crimes perpetrated in locations not specifically pleaded in the Indictment. Such evidence will only be considered for proof of the chapeau requirements of Articles 2, 3 and 4 where appropriate, that is the widespread or systematic nature of the crimes and an armed conflict.[63]

(c) Offences of a Continuous Nature

39. The Trial Chamber notes that with regard to the prolonged offences or offences of a continuous nature, i.e. sexual slavery and use of child soldiers, the Prosecution has not pleaded any locations. With respect to enslavement, which is a crime of a similar nature, the Prosecution has specified locations in Kenema, Kono, Koinadugu, Freetown and Western Area and Port Loko Districts but not in Bombali or Kailahun Districts.

40. The Trial Chamber accepts that the prolonged nature of these crimes, especially in the context of the Sierra Leone conflict where the perpetrators were often on the move between villages and Districts for a significant period of time, may make pleading particular locations difficult. However, it is the duty of the Prosecution to provide any material facts on the alleged crimes within their possession so as to enable the Accused to prepare a defence. The Trial Chamber is of the view in the present case that the Prosecution should have pleaded the three continuous crimes with more particularity.

41. Nevertheless, a significant amount of evidence has been adduced by both Prosecution and Defence witnesses in respect of each of these crimes over the course of a lengthy trial. The Defence has not specifically objected to the lack of specificity with respect to locations with relation to enslavement, sexual slavery and child soldier recruitment and Counts 9, 12 and 13. In the interests of justice, the Trial Chamber will treat the pleading of these counts as permissible.

2. Alleged Failure to Plead that Crimes were Committed by the Accused

42. The Brima Defence submits that the Prosecution has failed to plead with sufficient precision the acts which the Accused Brima allegedly committed in person.[64]

43. The Trial Chamber observes that the preliminary motions filed by the Kamara and Kanu Defence before the commencement of trial only generally complained of a lack of specificity in pleading individual criminal responsibility pursuant to Article 6(1) of the Statute, but they did not specifically assert that the particulars are insufficient as regards the commission of the crimes by one of the Accused.[65] The Trial Chamber thus does not consider this matter to be res judicata. In fact, a previous decision has held

that by no stretch of legal imagination, taking the Indictment as a whole, can it be reasonably inferred that it is doubtful as to what role the Accused is here being charged with. His alleged role is that of a commander [...] not that of a “foot soldier”.[66]

The Pre-Trial Brief does not mention the personal commission of a crime by the Accused. The only reference in general terms can be found in the Prosecution Opening Statement:

As the evidence will demonstrate, the accused persons directly took part in these attacks. They killed, they raped, they directed attacks in which these atrocities were committed. They gave orders to rebel forces to engage in hostilities against civilians. But the accused persons, because of their station and rank, were not always the ones on the ground pulling the trigger. The liability for these incredible events is based not only on their own direct conduct, but also on the activities of their subordinates and or the activities of those they associates with in a joint criminal enterprise.[67]

44. The Trial Chamber has heard evidence of the Accused personally committing crimes. Convicting an accused for personal perpetration of a crime without giving adequate notice could seriously questions the fairness of the proceedings. The Trial Chamber will therefore address this issue in more detail.

(a) Pleading Principles When the Mode of ‘Committing’ is Alleged

45. As stated above, where the Prosecution alleges that the accused committed crimes in person, the Prosecution is required to give as many particulars as possible, provided it is in a position to do so.[68] As a general rule, an accused can only be convicted of crimes which are charged in the indictment, the prime accusatory instrument.[69]

46. An indictment is defective if it does not state the material facts underpinning the charges with enough detail to enable an accused to prepare his or her defence.[70] Whether a fact is material depends on the nature of the Prosecution case.[71] There are several factors that can determine the materiality of the facts. Such factors are referred to in both the ICTY and ICTR cases.[72] For example, the Appeals Chamber in the Ntakirutimana held that

criminal acts that were physically committed by the accused personally must be set forth in the indictment specifically, including where feasible ‘the identity of the victim, the time and place of the events and the means by which the acts were committed.[73]

47. If the indictment is found defective because it fails to plead material facts or does not plead them with sufficient specificity, a Trial Chamber must consider whether the accused was nonetheless accorded a fair trial.[74] Where an accused has received timely, clear, and consistent information from the Prosecution detailing the factual basis underpinning the charge, the defects in the indictment are considered to be cured and a conviction may be entered.[75] If insufficient notice has violated the accused’s right to a fair trial, no conviction may result.[76]

48. In assessing whether a defective indictment was cured, the issue is whether the accused was in a reasonable position to understand the charges against him or her.[77] In making this determination, a Trial Chamber must consider the Prosecution’s pre-trial brief, its opening statement, and disclosed evidence such as witness statements or potential exhibits.[78] In the ICTY case of Naletilić and Martinović, the Appeals Chamber considered that in some cases, a list of witnesses in a chart, containing a summary of the facts and clearly identifying the charges in the indictment as to which each witness will testify, is sufficient to put the accused on notice.[79] However, in the same case, the Appeals Chamber also held that mere service of witness statements by the Prosecution in discharging its disclosure obligations does not automatically provide sufficient notice to the Defence.[80] The Trial Chamber is guided by these principles when determining whether the alleged defect in the Indictment has been cured.

49. The Defence submissions throughout the trial, including final trial briefs and closing arguments may assist in assessing whether the accused was sufficiently put on notice to respond to the allegations by the Prosecution.[81] In case of a lack of notice, the Defence must raise a specific objection at the time the evidence is introduced.[82] As the Appeals Chamber stated in the Niyitegeka case:

In general , “a party should not be permitted to refrain from making an objection to a matter which was apparent during the course of the trial, and to raise it only in the event of an adverse finding against that party.” Failure to object in the Trial Chamber will usually result in the Appeals Chamber disregarding the argument on grounds of waiver. In the case of objections based on lack of notice, the Defence must challenge the admissibility of evidence of material facts not pleaded in the Indictment by interposing a specific objection at the time the evidence is introduced. The Defence may also choose to file a timely motion to strike the evidence or to seek an adjournment to conduct further investigations in order to respond to the unpleaded allegation. [...][83] [emphasis added]

The Trial Chamber therefore finds that failure to object to the admissibility of evidence on material facts not pleaded in the Indictment constitutes a waiver and the Defence may not later raise an objection that it was not sufficiently put on notice.[84]

50. The aforesaid may be summarised as follows:

(i) It must be established whether the Indictment pleaded the particulars in relation to crimes personally committed by the Accused in sufficient detail;

(ii) If the Indictment does not provide sufficient detail, the Trial Chamber must consider whether this defect prejudiced the Accused in mounting a defence against the charge. In this context, the Trial Chamber will assess whether supplementary information given to the Defence cured the shortcomings in the Indictment, and review the Prosecution Pre-trial Brief and Opening Statement, and in some instances information contained in material disclosed to the Defence;

(iii) If the Defence was not sufficiently put on notice, the Trial Chamber will consider whether an objection was raised when evidence of crimes personally committed by the Accused was adduced at trial.

(b) Findings

51. Concerning the individual criminal responsibility of the Accused, the Indictment alleges generally that

by their acts or omissions, are individually criminally responsible pursuant to Article 6.1. of the Statute for the crimes referred to in Articles 2, 3 and 4 of the Statute as alleged in this Indictment, which crimes each of them planned, instigated, ordered, committed or in whose planning, preparation or execution each Accused otherwise aided and abetted [...][85]

52. Hence, without further specification, the Prosecution alleges that the Accused bear responsibility for the crimes set forth in the Indictment pursuant to all modes of liability contained in Article 6(1) of the Statute. No particulars regarding time, location and identity of victims are given in relation to crimes personally ‘committed’ by the Accused. Despite this, the Prosecution has adduced a significant amount of evidence in the course of trial which personally implicates all three Accused.[86]

53. The Trial Chamber finds that this manner of pleading in the Indictment cannot suffice to put the Accused on notice that he will have to answer to the allegations of personal perpetration of crimes, and is therefore defective.

54. The Prosecution Pre-trial Brief does not contain any additional material facts relating to the criminal responsibility of the Accused. Likewise, the Prosecution Opening Statement remained ambiguous at best on this matter.[87]

55. The Trial Chamber observes that almost a year prior to the start of the trial, the Prosecution disclosed material to the Defence which contained an initial witness list and a summary of facts and counts to which each witness would testify.[88] This material, considered in conjunction with witness statements disclosed pursuant to Rules 66 and 68 of the Rules, might have put the Defence on notice that evidence personally implicating the Accused would unfold at trial. Lest an injustice be done, before finding an Accused responsible for personal commission of a particular crime, the Trial Chamber will review whether the defect in the Indictment has been cured by the Prosecution providing adequate notice to the Defence of a specific incident. The Trial Chamber will also take into account whether the Defence has raised an objection of lack of untimely notice.

3. Objections Relating to Joint Criminal Enterprise (“JCE”)

56. The Defence submissions in relation to JCE can be grouped in three categories:
(1) objections to the form of pleading in the Indictment, especially regarding its different forms; (2) legal submissions; and (3) evidentiary submissions. The Trial Chamber will only consider submissions falling into the first category in the section below.

(a) Submissions of the Parties

57. The Kamara Defence submits that the common purpose to “take any actions to gain and exercise political power and control over the territory of Sierra Leone”[89] as such does not amount to a specific crime and is thus too broad to prove the existence of a JCE.[90] The Kamara Defence submits in particular that the Prosecution must “establish the existence of a common plan, design, or purpose specifically aimed at committing a criminal act within the [Special Court’s] jurisdiction” and show that an accused “joined with others in a plan aimed at achieving an end that constitutes a crime within the indictment.”[91] By contrast, the Prosecution submits that “[w]hile the aim of defeating the enemy and regaining control of territory is not in itself a criminal aim, if the plan involves the commission of crimes against civilians in order to achieve that aim, liability may be invoked under the doctrine of JCE.”[92] The Prosecution further addressed this issue in the closing arguments stating that “if the common purpose was to regain control of the country by any means possible, including the commission of crimes, then although the ultimate aim may not have been a crime within the jurisdiction of the Court, the common purpose involved the commission of crimes.”[93]

58. The Kamara Defence further submits that a JCE has only been pleaded between members of the AFRC – including the Accused – and members of the RUF, but not among the Accused inter se.[94] The Prosecution responds that “it is clearly alleged that the three Accused in this case were, between themselves, part of a joint criminal enterprise.”[95]

59. The Kanu Defence submits that the “extraordinary broad nature of the case” warrants the dismissal of JCE as a pertinent mode of individual criminal responsibility against Kanu.[96] In support, it refers to the Brđanin Trial Judgement which held that in that case, JCE

was not an appropriate mode of liability [...] given the extraordinarily broad nature of this case, where the Prosecution seeks to include within a JCE a person as structurally remote from the commission of the crimes [...] as the Accused.[97]

The Prosecution submits, in response to the Kanu Defence, that “membership in the enterprise may be fluid so long as the common aim remains constant.”[98]

(b) Pleading Principles

60. The Indictment alleges that

33. The AFRC, including ALEX TAMBA BRIMA, BRIMA BAZZY KAMARA and SANTIGIE BORBOR KANU, and the RUF, including ISSA HASSAN SESAY, MORRIS KALLON and AUGUSTINE GBAO, shared a common plan, purpose or design (joint criminal enterprise) which was to take any actions necessary to gain and exercise political power and control over the territory of Sierra Leone, in particular the diamond mining areas. The natural resources of Sierra Leone, in particular the diamonds, were to be provided to persons outside Sierra Leone in return for assistance in carrying out the joint criminal enterprise.

34. The joint criminal enterprise included gaining and exercising control over the population of Sierra Leone in order to prevent or minimize resistance to their geographic control, and to use members of the population to provide support to the members of the joint criminal enterprise. The crimes alleged in this Indictment, including unlawful killings, abductions, forced labour, physical and sexual violence, use of child soldiers, looting and burning of civilian structures, were either actions within the joint criminal enterprise or were a reasonably foreseeable consequence of the joint criminal enterprise.

61. Before reviewing the pleading requirements for participation in a joint criminal enterprise as a mode of liability, the Trial Chamber will briefly set out the law of this mode of liability as it is not explicitly referred to under Article 6 of the Statute, but an established mode under customary international law.[99] Three categories of JCE were identified by the ICTY Appeals Chamber in Tadic:

The ‘basic’ form, consisting of “[c]ases where all co-defendants, acting pursuant to a common design, possess the same criminal intention; for instance, the formulation of a plan among the co-perpetrators to kill, where, in effecting this common design (and even if each co-perpetrator carries out a different role within it), they nevertheless all possess the intent to kill. The objective and subjective prerequisites for imputing criminal responsibility to a participant who did not, or cannot be proved to have, effected the killing are as follows: (i) The accused must voluntarily participate in one aspect of the common design (for instance, by inflicting non-fatal violence upon the victim, or by providing material assistance to or facilitate the activities of his co-perpetrators), and (ii) The accused, even if not personally effecting the killing, must nevertheless intend the result.”[100]

The ‘systemic’ form, which is a variant of the ‘basic’ form “and embraces the so-called ‘concentration camp’ cases. The notion of common purpose was applied to instances where the offences charged were alleged to have been committed by members of military or administrative units such as those running concentration camps; i.e., by groups of persons acting pursuant to a concerted plan.”[101]

The ‘extended’ form, encompassing “cases involving a common design to pursue one course of conduct where one of the perpetrators commits an act which, while outside the common design, was nevertheless a natural and foreseeable consequence of the effecting of that common purpose. An example of this would be a common, shared intention on the part of a group to forcibly remove members of one ethnicity from their town, village or region (to effect “ethnic cleansing”) with the consequence that, in the course of doing so, one or more of the victims is shot and killed. While murder may not have been explicitly acknowledged to be part of the common design, it was nevertheless foreseeable that the forcible removal of civilians at gunpoint might well result in the deaths of one or more of those civilians. Criminal responsibility may be imputed to all participants within the common enterprise where the risk of death occurring was both a predictable consequence of the execution of the common design and the accused was either reckless or indifferent to that risk.”[102]

62. As discussed above, the Prosecution is required to plead all material facts, including the precise mode of liability under Article 6 of the Statute it intends to rely on. With regard to JCE, the Kvočka Appeal Judgement unambiguously established that failure to plead the category of JCE charged constitutes a defect in the indictment.[103]

63. As for pleadings regarding JCE liability, the Trial Chamber recalls that the actus reus of JCE liability comprises three elements:

(i) A plurality of persons: They need not be organised in a military, political or administrative structure;

(ii) The existence of a common plan, design or purpose which amounts to or involves the commission of a crime provided for in the Statute: There is no necessity for this plan, design or purpose to have been previously arranged or formulated. The common plan or purpose may materialise extemporaneously and be inferred from the fact that a plurality of persons acts in unison to put into effect a joint criminal enterprise.

(iii) Participation of the accused in the common design involving the perpetration of one of the crimes provided for in the Statute. This participation need not involve commission of a specific crime under one of those provisions (for example murder, extermination, torture, rape, etc.), but may take the form of assistance in, or contribution to, the execution of the common plan or purpose.[104]

64. The Krnojelac Trial Chamber distinguished the following four categories of supporting facts which must be present in an indictment charging an accused with JCE:

(i) the nature or purpose of the JCE;

(ii) the time at which or the period over which the enterprise is said to have existed ;

(iii) the identity of those engaged in the enterprise, so far as their identity is known, but at least by reference to their category as a group;

(iv) the nature of the participation by the accused in that enterprise.

65. All legal prerequisites to the application of the offences charged constitute material facts and must be pleaded in the indictment.[105] Each of the material facts must usually be pleaded expressly, although it may be sufficient in some circumstances if it is pleaded by necessary implication.[106] However, if a pleading merely assumes the existence of the pre-requisite, this fundamental principle of pleading has not been met.[107]

(c) Deliberations

66. The Kamara Defence has previously challenged the Indictment as being defective in that it failed to provide sufficient particulars regarding the criminal nature of the purpose of the alleged joint criminal enterprise.[108] Trial Chamber I dismissed that application, finding that, upon a review of the Indictment as a whole and particularly paragraphs 33 and 34,[109] “the Indictment, in its entirety, is predicated upon the notion of a joint criminal enterprise”, which is reinforced by paragraph 34, and that the nature of the alleged joint criminal enterprise was pleaded “with the degree of particularity as the factual parameters of the case admits,” as alleged in paragraph 33.[110]

67. With the greatest respect, the Trial Chamber does not agree with the decision of our learned colleagues that the Indictment has been properly pleaded with respect to liability for JCE, since the common purpose alleged in paragraph 33, that is,

to take any actions necessary to gain and exercise political power and control over the territory of Sierra Leone, in particular the diamond mining areas

is not a criminal purpose recognised by the Statute. The common purpose pleaded in the Indictment does not contain a crime under the Special Court’s jurisdiction. A common purpose “to take any actions necessary to gain and exercise political power and control over the territory of Sierra Leone” is not an international crime and, as the Appeals Chamber has noted

Whether to prosecute the perpetrators of rebellion for their act of rebellion and challenge to the constituted authority of the State as a matter of internal law is for the state authority to decide. There is no rule against rebellion in international law.[111]

68. In international criminal law the concept of JCE is commonly used to refer to an inherently criminal enterprise under the statutes of international tribunals. Examples of such pleading are as follows:

The purpose of the joint criminal enterprise was the permanent forcible removal of Bosnian Muslims and Bosnian Croat inhabitants from the territory of the planned Serbian state by the commission of the crimes alleged in Counts 1 to 12 [emphasis added].[112]

Within the Republic of Bosnia and Herzegovina, the objective was the permanent removal, by force or other means, of Bosnian Muslims, Bosnian Croats or other non-Serv inhabitants from large areas of BiH through the commission of crimes which are punishable under Articles 3, 4 and 5 of the [ICTY] Statute [emphasis added].[113]

The purpose of the joint criminal enterprise was the permanent forcible removal of the Bosnian Muslim and Bosnian Croat inhabitants from the territory of the planned Serbian state, including a campaign of persecution, through the commission of the crimes alleged in Counts 1 to 8 of the Indictment. [emphasis added][114]

The examples above demonstrate that the ICTY indictments allege a common purpose which is a crime under international law and then describe the crimes committed (direct or foreseeable) in pursuing this common purpose.

69. There are further indications in the case law that the ‘common purpose’ must be inherently criminal by purpose. For instance, the ICTY Trial Chamber in Krajišnik held that

the mens rea required for the first form is that the JCE participants, including the accused, had a common state of mind, namely the state of mind that the statutory crime(s) forming part of the objective should be carried out.[115] [emphasis added]

Further, in the Vasiljević Judgement, the ICTY Trial Chamber held that “[t]he Prosecution must establish the existence of an arrangement or understanding amounting to an agreement between two or more persons that a particular crime will be committed.” [emphasis added][116]

70. The principle of the JCE doctrine is to hold an individual accountable for all his actions that fall within, or are a foreseeable consequence of entering into, a criminal agreement. The rationale behind this principle is that a person should not engage in activity that is criminal or foreseeably criminal. Gaining and exercising political power is, however, not inherently a criminal activity.

71. There are considerable difficulties with the Prosecution’s pleading of the JCE in this case. While the Trial Chamber generally concurs with the learned colleagues of Trial Chamber I, when holding that paragraph 33 and 34 have to be read as a whole,[117] these two paragraphs do not clarify what criminal purpose the parties agreed upon at the inception of the agreement. The Prosecution in paragraph 34 alleged that “the crimes in this Indictment [...] were either actions within the joint criminal enterprise or were a reasonably foreseeable consequence of the joint criminal enterprise.”[118] In general, this language is used to refer to the ‘basic’ (“actions within”) and the ‘extended’ (“reasonably foreseeable consequence”) form of JCE. The Prosecution has alleged those two forms disjunctively, thereby impeding the Defence ability to know the material facts of the JCE against them, as it appears that the two forms as pleaded logically exclude themselves. If the charged crimes are allegedly within the common purpose, they can logically no longer be a reasonably foreseeable consequence of the same purpose and vice versa.

72. The latter allegation of the Prosecution, that the crimes were a reasonably foreseeable consequence of the joint criminal enterprise, is particularly troubling. History has shown that serious violations of international humanitarian law by certain members of armed forces or groups during armed conflict are a foreseeable consequence of such an engagement in conflict. This, however, does not necessarily make the act of engagement in armed conflict in itself an international crime. International humanitarian law strictly distinguishes between the use of force (jus ad bellum) and the law applicable in armed conflict (jus in bello).[119] By charging the foreseeability of international crimes in a common purpose that is not inherently criminal, the Prosecution appears to blur these two concepts and therefore such a pleading should not be permitted.

73. Even though the contribution to a joint criminal enterprise need not be criminal in nature,[120] the purpose has to be inherently criminal and the perpetrators, including the accused, have a common state of mind, namely the state of mind that the statutory crime(s) forming part of the objective should be carried out.[121]

74. The question remains whether the Prosecution has properly pleaded the ‘basic’ form of JCE in the Indictment and if a conjunctive reading between paragraph 33 and 34 should be allowed, as Trial Chamber I has found. In any event, such a reading bears similar difficulties. The Trial Chamber notes the position taken by the Prosecution that a JCE only needs to “involve” the commission of a crime. This position is indeed supported by jurisprudence.[122] But the fundamental question that arises from this is whether the agreement involved international crimes at the inception of the JCE. The Trial Chamber will refer to some evidence on the point to illustrate its view in this regard.

75. On 25 May 1997, a group of renegade Sierra Leonean Army soldiers staged a coup ousting the government of Tejan Kabbah and installed Johnny Paul Koroma as Chairman of the new government. On 28 May 1997 Koroma contacted the RUF leader Foday Sankoh to invite the RUF into his Government.[123] As the founders of the AFRC all belonged to the Sierra Leone Army and therefore had been fighting the RUF since 1991, the coalition between the two factions following the 1997 coup was not one based on longstanding common interests. Both factions officially declared that they were joining forces to bring peace and political stability to Sierra Leone.[124] On 18 June 1997, the RUF issued an official apology to the nation for its crimes and went on to praise Johnny Paul Koroma’s government.[125] Apart from these formal pronouncements, little information has been adduced regarding the motives of the two factions in forming this alliance, but it appears that the AFRC had the intention to bring lasting peace to Sierra Leone after six years of civil strife.

76. From that evidence at least it does not appear that the JCE was criminal from its inception and that it “involved” the commission of international crimes to gain and exercise control political power over the territory of Sierra Leone.

(d) Findings

77. The Trial Chamber notes the Prosecution submission that “membership in the enterprise may be fluid so long as the common aim remains constant.” However, this only illustrates yet another difficulty in the pleading of the Prosecution, i.e. the second pleading requirement that the indictment shall contain the “time at which or the period over which the enterprise is said to have existed”. The indictment fails to provide a specific time period over which the JCE is supposed to have existed,[126] but it has been argued by the Prosecution that the time frame applied should be “all times relevant to the Indictment”. If such a proposition is accepted than it follows that the common purpose was inherently criminal from its inception.

78. The Trial Chamber agrees that a common purpose and its objectives might change over time. This has been expressed in the Blagojević Trial Judgement:

If the objective of the joint criminal enterprise changes, such that the objective is fundamentally different in nature and scope from the common plan or design to which the participants originally agreed, then a new and distinct joint criminal enterprise has been established. For this joint criminal enterprise, like the original joint criminal enterprise, the three elements must be established for criminal responsibility to attach. It may be that members of [the] second joint criminal enterprise are the same as those in the original enterprise.

Alternatively, it may be that only some of the original members of the first joint criminal enterprise joined the second joint criminal enterprise, and thus entail criminal liability for this enterprise. A person will only be held liable for that joint criminal enterprise to which he agreed to participate in under the first category of joint criminal enterprise, and the natural and foreseeable consequences thereof for the third category of joint criminal enterprise.[127]

79. It is not in dispute that a new JCE may emerge from a common purpose fundamentally different in nature and in scope from the initial common purpose, and that members in the initial JCE may also be members to this new JCE, if they adhere to this new common purpose. However, it is more important for the Prosecution to provide material facts of this new or changed common purpose in the Indictment. Having heard the evidence in this case, the Trial Chamber can merely state that an alleged common purpose between the AFRC and RUF may have well changed over time and that the members of the JCE may have ascribed to the involvement of international crimes to fulfil the purpose of exercising power and control. But at the same time it is clear that the purpose has changed and that effectively the allegations may have involved a new or different purpose.

80. The Prosecution is required to know its case before the start of the trial and to know of the changing nature and purposes of the enterprises either between the AFRC and the RUF or within the AFRC.[128] All those new and different purposes have to be pleaded in the indictment and the Prosecution cannot be permitted to mould the case against the Accused as the trial progresses.

81. Further, the Trial Chamber rejects the Prosecution argument that it has sufficiently pleaded a joint criminal enterprise between the three Accused in paragraph 35.[129] If one would accept that the Prosecution has indeed pleaded a separate JCE between the three Accused, which is not directly related to the previous JCE between the AFRC and RUF, then it follows that the Prosecution has not specifically identified the nature or purpose of such alleged JCE.

82. As with other pleading failures, such a defect may be cured by the provision of timely, clear, and consistent information, for example in a pre-trial brief.[130] No such timely, clear or consistent information was provided to the Defence and the Defence has specifically objected to the pleading of the JCE in the Indictment.[131]

83. The Prosecution has submitted that the issue of specificity in the pleadings of JCE has already been litigated at the pre-trial stage and that the sufficiency of pleading a JCE was accepted by the Trial Chamber in its Rule 98 Decision.[132] The latter statement is not correct as the Trial Chamber held that “whether the Indictment has been sufficiently pleaded or is defective in form is not a matter which falls within the scope of Rule 98”[133] and has therefore not pronounced itself on these issues. Furthermore, and as mentioned above, it is accepted that even after the conclusion of the trial proceedings a Trial Chamber may in certain circumstances exceptionally reconsider a decision it, or another Judge or Trial Chamber acting in the same case, has previously made.[134]

84. The Trial Chamber has considered with great care the consequences of its decision and has considered reopening the hearing to allow the Prosecution to make fresh submissions or to argue that any defects had since been remedied. However, the Trial Chamber does not believe that a reopening of the case is necessary, as the Prosecution did make submissions in response on this objection in their Final Trial Brief and closing arguments.[135]

85. For these reasons, the Trial Chamber finds with respect to Joint Criminal Enterprise as a mode of criminal liability, the Indictment has been defectively pleaded. Therefore, the Trial Chamber will not consider JCE as a mode of criminal responsibility in this case.

4. Alleged Failure to Specify Factual Foundation of Responsibility
Pursuant to Article 6(3) of the Statute

86. The Brima Defence submits that the Indictment remains impermissibly vague regarding the conduct of subordinates for whom the Accused allegedly bears individual criminal responsibility.[136]

87. The Trial Chamber observes that the same complaint has been made by the Kamara Defence in a preliminary motion, and dismissed as being without merit:

[P]aragraphs 28-64 set out in extenso the acts or crimes of the subordinates for which the Accused, in his superior capacity, is alleged to be responsible, for example armed attacks on civilians [...], terrorizing of the civilian population (to wit, unlawful killings, physical and sexual violence against civilian men, women and children, abductions, lootings and destruction of civilian property [...][137]

88. Although this ruling applies only in relation to the Accused Kamara, the Trial Chamber finds that the rationale of that decision is also applicable to the other Accused and will therefore not revisit the matter.[138]

5. Alleged Failure to Distinguish Between Individual Criminal Responsibility Under Article 6(1) and 6(3) of the Statute

89. The Brima and Kamara Defence submit that the Prosecution failed to distinguish the acts giving rise to responsibility of the Accused under Article 6(1) from those under 6(3) of the Statute.[139] Moreover, the Brima Defence alleges that the Prosecution charged the Accused with mutually exclusive modes of liability under Article 6(1) and Article 6(3) for the same conduct.[140]

90. The Trial Chamber observes that the same issue has been adjudicated in a decision on a preliminary motion by the Accused Kamara:

Individual criminal responsibility under Article 6(1) and criminal responsibility as a superior under Article 6(3) are not mutually exclusive and can be properly charged both cumulatively and alternatively based on the same set of facts.[141]

91. Although this ruling applies only in relation to the Accused Kamara, the Trial Chamber finds that the rationale of that decision is also applicable to the other Accused and will therefore not revisit the matter.

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

(a) Submissions of the Parties

92. The Brima and Kamara Defence submit that Count 7 “offends the rule against duplicity” as the Accused are charged with two separate offences under the same count.[142] The Prosecution submits that the Defence has left it too late to raise the argument that the Indictment is defective. It cites as authorities Rule 72 of the Rules and Brđanin Trial Judgement, which held that “normally, an allegation pertaining to the vagueness of an indictment is dealt with at the pre-trial stage.”[143]

(b) Findings

93. This argument has not been previously raised by the Defence and although an alleged defect in an indictment should be primarily raised by way of a preliminary motion pursuant to Rule 72(B)(ii), the Trial Chamber, as mentioned above, is not precluded from reviewing in this Judgement whether shortcomings in the form of the Indictment have actually resulted in prejudice to the rights of the Accused.[144] Furthermore, the Trial Chamber notes that the Defence did not raise the objections at such a late stage for tactical advantages, but merely followed the opinion of Justice Sebutinde in her “Separate and Concurring Opinion” to the Rule 98 Decision.[145] Justice Sebutinde expressed the view that Count 7 was “duplex and defective in as far as it does not enable the accused persons to know precisely which of the two crimes (sexual slavery or sexual violence) they should be defending themselves against” and that the situation could “prejudice a fair trial of the accused persons if left uncorrected.”[146] Justice Sebutinde did not think that Count 7 was incurably defective, at that stage, and could be cured by an amendment dividing the offences into two separate counts.[147] Since then, the Prosecution has not availed itself of Justice Sebutinde’s suggested remedy.

94. At the Rule 98 stage the question was not considered by the majority since no such question was before the Trial Chamber and it confined itself to considering the prima facie state of the evidence to establish Count 7.[148] Both the Brima and Kamara Defence allege that Count 7 in its current form has made it difficult for the Accused to fully understand the nature and the cause of the charges brought against them.[149] The Trial Chamber has accordingly reviewed the pleading of Count 7 and agrees with the opinion of Justice Sebutinde that it is bad for duplicity, for the reasons set out in her opinion previously mentioned and that such a pleading prejudices the rights of the Accused.

95. The Trial Chamber by majority finds that Count 7 is bad for duplicity and is accordingly dismissed in its entirety.[150]

III. CONSIDERATIONS REGARDING THE EVALUATION OF EVIDENCE

A. Law Applicable to the Assessment of Evidence

96. The Trial Chamber has assessed the probative value and weight of the evidence in this case in accordance with the Statute and the Rules. In accordance with Rule 89(A) of the Rules, the rules of evidence governing the proceedings before the Trial Chamber shall be the rules set forth in Section 3 of the Rules,[151] and the Trial Chamber “shall not be bound by national rules of evidence”. Where no guidance is given by the Rules, the Trial Chamber, pursuant to Rule 89(B) of the Rules, has assessed the evidence in such a way as will best favour a fair determination of the case and which is consistent with the spirit of the Statute and the general principles of law.

1. Burden and Standard of Proof

97. Article 17(3) of the Statute enshrines the presumption of innocence, i.e. that an accused shall be presumed innocent until proved guilty.[152] This presumption places on the Prosecution the burden of establishing the guilt of each Accused, a burden which remains on the Prosecution throughout the entire trial.

98. In respect of each count charged against each Accused, the standard to be met for a conviction to be entered is that of proof beyond reasonable doubt. Rule 87(A) of the Rules provides, in its relevant part: “A finding of guilt may be reached only when a majority of the Trial Chamber is satisfied that guilt has been proved beyond reasonable doubt.” Accordingly, in respect of each count charged against each of the Accused, the Trial Chamber has determined whether it is satisfied, on the basis of the whole of the evidence, that every element of that crime and the criminal responsibility of the Accused for it have been established beyond reasonable doubt. In making that determination, the Trial Chamber has been careful to consider whether more than one inference was reasonably open from the facts and, if so, whether there was an inference inconsistent with the guilt of the Accused. If so, the onus and the standard of proof require that an acquittal be entered in respect of that particular count.[153]

2. Admission of Evidence

99. Rule 89(C) of the Rules states the general principle of admissibility that a Trial Chamber “may admit any relevant evidence”.[154] The Appeals Chamber has made it clear that this provision favours the admission of all relevant evidence, the probative value and weight of which are only to be assessed at the end of the trial and in the context of the entire record.[155]

100. In addition to evidence of facts within the testifying witness’s own knowledge, the Trial Chamber has also admitted hearsay evidence.[156] Under Rule 89(C) of the Rules, the Trial Chamber has a broad discretion to admit relevant hearsay evidence. However, before determining whether to rely on hearsay evidence, the Trial Chamber has carefully examined such evidence taking into account that its source has neither been tested in cross-examination nor been the subject of an oath or solemn declaration.[157]

101. In some instances, the Trial Chamber relied upon circumstantial evidence, i.e., evidence surrounding an event from which a fact at issue may be reasonably inferred,[158] in order to determine whether or not a certain conclusion could be drawn. While individual pieces of evidence standing alone may well be insufficient to establish a fact, their cumulative effect may be revealing and decisive.[159] Therefore, it is “no derogation of evidence to say that it is circumstantial.”[160]

B. Forms of Evidence Under Review

102. For the purposes of the trial, ‘evidence’ has been taken to mean the information which has been put before the Trial Chamber in order to prove the facts at issue.

103. Evidence was admitted in the following forms: (i) oral evidence, (ii) documentary evidence, including such evidence provided in lieu of oral testimony pursuant to Rule 92bis, (iii) testimony of expert witnesses, (iv) facts of which judicial notice was taken and (v) facts agreed by the Parties.

1. Witness Testimony

104. The Trial Chamber heard the direct testimony of a total of 148 witnesses: 59 called by the Prosecution, 88 called by the Defence[161] and one called by the Trial Chamber.[162]

105. Rule 85 of the Rules, which governs the presentation of evidence, provides:

(A) Each party is entitled to call witnesses and present evidence. Unless otherwise directed by the Trial Chamber in the interests of justice, evidence at the trial shall be presented in the following sequence:

Evidence for the prosecution;

Evidence for the defence;

Prosecution evidence in rebuttal, with leave of the Trial Chamber;

Evidence ordered by the Trial Chamber;

(B) Examination-in-chief, cross-examination and re-examination shall be allowed in each case. It shall be for the party calling a witness to examine him in chief, but a Judge may at any stage put any question to the witness.

(C) The accused may, if he so desires, appear as a witness in his own defence. If he chooses to do so, he shall give his evidence under oath or affirmation and, as the case may be, thereafter call his witnesses.

(D) Evidence may be given directly in court, or via such communications media, including video, closed-circuit television, as the Trial Chamber may order.


 

106. Rule 90 of the Rules governs the testimony of witnesses in court. Rule 90 states:

(A) Witnesses may give evidence directly, or as described in Rules 71[[163]] and 85(D).

(B) Every adult witness shall, before giving evidence, make one of the following solemn declarations:

“I solemnly declare that I will speak the truth, the whole truth and nothing but the truth.”

Or

“I solemnly swear on the [insert holy book] that I will speak the truth, the whole truth and nothing but the truth.”

(C) A child shall be permitted to testify if the Chamber is of the opinion that he is sufficiently mature to be able to report the facts of which he had knowledge, that he understands the duty to tell the truth, and is not subject to undue influence. However, he shall not be compelled to testify by solemn declaration.

(D) A witness, other than an expert, who has not yet testified may not be present without leave of the Trial Chamber when the testimony of another witness is given. However, a witness who has heard the testimony of another witness shall not for that reason alone be disqualified from testifying.

(E) A witness may refuse to make any statement which might tend to incriminate him. The Chamber may, however, compel the witness to answer the question. Testimony compelled in this way shall not be used as evidence in a subsequent prosecution against the witness for any offence other than false testimony under solemn declaration.

(F) The Trial Chamber shall exercise control over the mode and order of interrogating witnesses and presenting evidence so as to:

(i) Make the interrogation and presentation effective for the ascertainment of the truth; and

(ii) Avoid the wasting of time.


 

107. In accordance with Rule 90(B), witnesses gave evidence under a solemn declaration or oath, and were cross-examined and re-examined in accordance with Rule 85(B).

108. When evaluating the credibility of witnesses who gave evidence viva voce, the Trial Chamber has taken into account a variety of factors, including their demeanour, conduct and character (where possible),[164] their knowledge of the facts to which they testified, their proximity to the events described, their impartiality, the lapse of time between the events and the testimony, their possible involvement in the events and the risk of self-incrimination, and their relationship with the Accused[165].

109. In some instances, only one witness gave evidence on a material fact. As a matter of law, the testimony of a single witness on a material fact does not require corroboration.[166] Nevertheless, the Trial Chamber has examined the evidence of a single witness with particular care before attaching any weight to it[167].

(a) Discrepancies Between the Evidence of Various Witnesses, or Between the Evidence of a Particular Witness and a Previous Statement

110. It is the responsibility of the Trial Chamber to resolve any inconsistencies that may arise within and/or amongst witnesses’ testimonies. In doing so, the Trial Chamber has discretion to evaluate any inconsistencies, to consider whether the evidence taken as a whole is reliable and credible and to accept or reject the ‘fundamental features’ of the evidence.[168] In this context, the Trial Chamber endorses the statement of the ICTY Appeals Chamber in Kupreškić that

[t]he presence of inconsistencies in the evidence does not, per se, require a reasonable Trial Chamber to reject it as being unreliable. Similarly, factors such as the passage of time between the events and the testimony of the witness, the possible influence of third persons, discrepancies, or the existence of stressful conditions at the time the events took place do not automatically exclude the Trial Chamber from relying on the evidence.[169]

111. A number of witnesses gave evidence of horrific events in which they personally suffered the amputation of one or both arms, or were raped, or saw such atrocities inflicted on members of their families, or who witnessed family members being tortured and killed. Recounting this evidence in court evoked strong emotional reactions in all of these witnesses, many of whom broke down in tears. As a result, the Trial Chamber took the view that there may have been memories which prevented the witnesses from giving a full account of their experiences to the Court, or which prevented them from articulating in detail what they had endured.[170] The Trial Chamber also took into consideration the possibility that any observations made by the witnesses at the relevant time may have been affected by terror or stress[171]. While these circumstances do not necessarily mean that such evidence is not reliable, the Trial Chamber has weighed it with particular scrutiny.

112. During the trial, both the Prosecution and the Defence made use of pre-trial statements from witnesses – and sometimes of interview notes – for the purpose of cross-examination. In many instances both parties alleged inconsistencies and contradictions between the pre-trial statements of witnesses and their evidence at trial. The Trial Chamber accepts that the information given in such a statement will not always be identical to the witness’s oral evidence. This may be because the witness was asked questions at trial not previously asked, or may in his or her testimony remember details previously forgotten[172]. The Trial Chamber has also taken into account that the six to eight years that have passed since the events in the Indictment have, in all likelihood, affected the accuracy and reliability of the memories of witnesses. Another factor considered by the Trial Chamber was that interviews with witnesses were usually conducted in one of the native languages of Sierra Leone, whereas the resulting witness statements used in court were a summarised English translation of the original statement or interview notes.

113. Thus, in general, the Trial Chamber has not treated minor discrepancies between the evidence of various witnesses, or between the evidence of a particular witness and a statement previously made by that witness, as discrediting their evidence where the essence of the incident had nevertheless been recounted in acceptable detail.[173]

(b) Crimes Involving Sexual Violence

114. Where a count charges sexual violence, the Trial Chamber has noted and applied, where appropriate, the principles prescribed by Rule 96, which states:

In cases of sexual violence, the Court shall be guided by and, where appropriate, apply the following principles:

(i) Consent cannot be inferred by reason of any words or conduct of a victim where force, threat of force, coercion or taking advantage of a coercive environment undermined the victim’s ability to give voluntary and genuine consent;

(ii) Consent cannot be inferred by reason of any words or conduct of a victim where the victim is incapable of giving genuine consent;

(iii) Consent cannot be inferred by reason of the silence of, or lack of resistance by, a victim to the alleged sexual violence;

(iv) Credibility, character or predisposition to sexual availability of a victim or witness cannot be inferred by reason of sexual nature of the prior or subsequent conduct of a victim or witness.


 

(c) Names of Locations

115. Although not raised as an issue in the Parties’ Final Trial Briefs, the Trial Chamber reiterates that names of locations mentioned by witnesses which are similar, but not identical, may refer to the same location:

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.[174]

(d) Testimony of Accused in his own Defence

116. There is no burden whatsoever on an accused to prove his innocence. Article 17(4)(g) of the Statute provides that no accused shall be compelled to testify against himself or confess guilt.

117. The Accused Brima elected to testify in his own defence. In accordance with Rule 85(C) of the Rules, he gave his evidence under oath and thereafter called other witnesses in his defence. His election to give evidence does not mean that he accepted any onus to prove his innocence; nor does it mean that a choice must be made between his evidence and that of the Prosecution witnesses. Rather, the Trial Chamber has to determine whether the evidence of the Prosecution witnesses should be accepted as establishing beyond reasonable doubt the facts alleged, notwithstanding the evidence of the Accused Brima and that of the other Defence witnesses.[175]

118. The Accused Kamara and the Accused Kanu did not give evidence in their own defence. No adverse inferences were drawn from the fact that they did not testify.

119. Given that this is a joint trial of three accused, the Trial Chamber has been careful to consider the charges against each of the Accused in the light of the entirety of the evidence adduced by the Prosecution and each of the Accused.[176]

(e) Alibi of Accused Brima

120. The Accused Brima relied in part on an alibi defence. So long as there is a factual foundation in the evidence for that alibi, an accused bears no onus to establish that alibi; it is for the Prosecution to “eliminate any reasonable possibility that the evidence of alibi is true”.[177] Further, a finding that an alibi is false does not in itself “establish the opposite to what it asserts”.[178] The Prosecution must not only rebut the validity of the alibi but also establish beyond reasonable doubt the guilt of the Accused as alleged in the Indictment.[179]

121. Although the Brima Defence alluded to the defence of alibi in its Pre-Trial Brief[180], the Trial Chamber found in an earlier decision that the Brima Defence had failed to comply with Rule 67(A)(ii)(a) of the Rules, in that it had not provided the notification required by that Rule.[181]

122. Rule 67(A)(ii)(a) of the Rules requires that:

(A) As early as reasonably practicable and in any event prior to the commencement of the trial:

(i) [...]

(ii) The Defence shall notify the Prosecutor of its intent to enter:

(a) The defence of alibi; in which case the notification shall specify the place or places at which the accused claims to have been present at the time of the alleged crime and the names and addresses of witnesses and any other evidence upon which the accused intends to rely to establish the alibi.


 

123. Failure of the Brima Defence to provide such notice under Rule 67(A)(ii)(a) does not limit the right of the Accused Brima to rely on the defence of alibi.[182] Nevertheless, the Trial Chamber held that

[i]f the defence deliberately ignores its obligations under Rule 67(A)(ii), it can expect to be sanctioned by the Trial Chamber. Failure to provide timely disclosure may impair the interests of fair trial proceedings and undermine the prosecution’s ability to prepare its case and investigate the evidence on which the alibi defence rests. Therefore, failure by the defence to observe its obligations under Rule 67(A)(ii) will entitle the Trial Chamber to take such failure into account when weighing the credibility of the defence of alibi.[183]

(f) Witnesses Implicated in the Commission of the Crimes

124. The Defence calls into issue the credibility of certain Prosecution witnesses because these individuals have allegedly been implicated in crimes under the jurisdiction of the court[184] or in domestic crimes[185], or that they were informants to the police[186], or admitted taking drugs.[187] The Brima Defence specifically alleges that Witness George Johnson killed Brima’s brother and that this was reason enough for the witness to “attempt to fabricate evidence” against the Accused.[188]

125. A witness with a self-interest to serve may seek to inculpate others and exculpate himself, but it does not follow that such a witness is incapable of telling the truth.[189] Hence, the mere suggestion that a witness might be implicated in the commission of crimes is insufficient for the Trial Chamber to discard that witness’s testimony. Moreover, none of these Prosecution witnesses has been charged with any crimes and their evidence cannot, therefore, be described as “accomplice evidence.” Furthermore, having heard the evidence of the witnesses concerned, the Trial Chamber found no reason to give undue consideration to any of the defence allegations above.

(g) ‘Incentives’ for Witnesses

126. The Defence alleges that the evidence of some of the Prosecution witnesses is suspect because they allegedly received incentives to testify against the Accused, such as financial incentives[190] or the promise of relocation to another country[191].

127. With regard to alleged ‘financial incentives’, the costs of allowances necessarily and reasonably incurred by witnesses as a result of testifying before a Chamber are met by the Special Court in accordance with the “Practice Direction on Allowances for Witnesses and Expert Witnesses”, issued by the Registrar on 16 July 2004. The Practice Direction provides for a wide range of allowances to be paid to witnesses testifying before the Special Court. These include an attendance allowance as compensation for earnings and time lost as a result of testifying, accommodation, meals, transport, medical treatment, childcare and other allowances. No distinction is made between witnesses for the Prosecution and Defence.

128. The Practice Direction requires the Special Court’s Witnesses and Victims Section (“WVS”) to provide records of payments to the Special Court’s Finance Section, and vice versa.[192] In the present case, records of disbursements to Prosecution witnesses were disclosed to the Defence pursuant to Rule 68 of the Rules,[193] and disbursement forms concerning witnesses for both Parties have been admitted into evidence.[194] The Trial Chamber is satisfied that these payments have been made in a transparent way and in accordance with the applicable Practice Direction. Allegations to the contrary are therefore without merit.

129. Relocation to another country is a protective measure employed by WVS pursuant to its responsibility to provide appropriate protection for witnesses and victims who are at risk on account of the testimony given by them.[195] The mere fact that a witness has received protection in that form is not in itself reason to doubt his or her evidence.

130. Accordingly, the Trial Chamber has not given undue weight to these alleged ‘incentives’ when assessing the credibility of the witnesses in question.

(h) Putting the Defence Case to Prosecution Witnesses

131. The Prosecution submits that “the Trial Chamber should refuse to accept, or give less weight to, Defence evidence that presents a line of defence that has not been put to Prosecution witnesses - for example the evidence of the First Accused that he was maltreated in the presence of Lieutenant Colonel Petrie - in the interests of fairness to the witnesses and overall considerations of justice.”[196]

132. In contrast to its ICTY and ICTR counterparts,[197] the Rules of the Special Court do not oblige a Party to put its case to a witness. However, before such a Rule was adopted at the ICTR, the ICTR Appeals Chamber held that

when weighing the [Defence’s] allegation going to the credibility of the Prosecution witnesses, the Trial Chamber was entitled to take into account the fact that the [Defence] did not put such allegations to the witnesses for their reactions. Indeed, without the benefit of observing the witnesses’ reaction to such allegations, the Trial Chamber was not in a position to determine whether there was merit in the [Defence] charges.[198]

133. As claimed by the Prosecution, the Defence did lead evidence in the Defence case which was not put to Prosecution witnesses in cross-examination. This was not an oversight by the Defence, but a deliberate strategy devised by Defence counsel. As explained in the Defence Closing Arguments: “would it be in our interests to show our hands by cross-examining on a point which the Prosecution can come later to correct? It is only a matter of strategy.”[199] In the circumstances, the Trial Chamber considers that it would not be in the interests of justice to set aside the testimony of the relevant Defence witnesses. However, in assessing the weight to be given to such evidence, the Trial Chamber will take into account that the evidence was not put to the Prosecution witnesses, with the result that the Trial Chamber did not have the benefit of observing their reactions.

2. Documentary Evidence

(a) Introduction

134. In the course of the trial, the Trial Chamber admitted a total of 155 exhibits: 109 were tendered by the Prosecution, and 46 by the Defence.

135. Rule 92bis of the Rules is entitled “Alternative Proof of Facts” and provides that

(A) A Chamber may admit as evidence, in whole or in part, information in lieu of oral testimony.

(B) The information submitted may be received in evidence if, in the view of the Trial Chamber, it is relevant to the purpose for which it is submitted and if its reliability is susceptible of confirmation.

(C) A party wishing to submit information as evidence shall give 10 days notice to the opposing party. Objections, if any, must be submitted within 5 days.


 

136. The effect of Rule 92bis was held by the Appeals Chamber to be as follows:

SCSL Rule 92bis is different to the equivalent Rule in the ICTY and ICTR and deliberately so. The judges of this Court, at one of their first plenary meetings, recognised a need to amend ICTR Rule 92bis in order to simplify this provision for a court operating in what was hoped would be a short time-span in the country where the crimes had been committed and where a Truth and Reconciliation Commission and other authoritative bodies were generating testimony and other information about the recently concluded hostilities. The effect of the SCSL Rule is to permit the reception of “information” – assertions of fact (but not opinion) made in documents or electronic communications – if such facts are relevant and their reliability is “susceptible of confirmation”. This phraseology was chosen to make clear that proof of reliability is not a condition of admission: all that is required is that the information should be capable of corroboration in due course.”[200]

137. The Trial Chamber has assessed the weight and reliability of documentary evidence admitted pursuant to Rule 92bis in the light of all the evidence in the case.[201]

138. In compliance with an order of the Trial Chamber, the Prosecution indicated in the margin of documents submitted as evidence under Rule 92bis the passages claimed by it to be relevant,[202] and only those passages were admitted into evidence.

139. Many documents tendered by the Prosecution have been contested by the Defence. The Trial Chamber admitted the documents into evidence on the basis of relevance, leaving their reliability and probative value to be assessed at the end of the trial. The individual objections raised by the Defence are discussed below.

(b) Copies and Internet Sources

140. The Trial Chamber relied on a copy of a document if the original was unavailable.[203] Similarly, the Trial Chamber has accepted printouts from internet sources as accurate reproductions of the originals.

141. The Defence raised concerns regarding the authenticity of particular printouts, specifically those tendered by the Prosecution originating from the website www.sierra-leone.org.[204] The Defence argued that the website did not originate from a government or a respected non-governmental organisation, and that the actual source and its authenticity could not be verified.[205] Moreover, those documents were not put to any witness, as they were introduced through Rule 92bis. The Prosecution provided some background information on the website and explained that the documents were gathered and compiled by a journalist during the conflict in Sierra Leone.[206] However, in the absence of any reliable evidence as to authenticity, the Trial Chamber has regarded these exhibits as being of little weight unless corroborated.

(c) Radio Broadcasts and Transcripts Thereof

142. The Prosecution has tendered several transcripts of radio broadcasts.[207] Among other things, the Defence challenged the accuracy of broadcasts transcribed by the editor of the website where the transcripts were published.[208] At one point during the Trial, the Prosecution conceded that the transcript had to be amended by members of the Prosecution team after listening to the broadcast.[209] As the Trial Chamber has no information with regard to source and authenticity, it relied on the exhibits in question only if corroborated by other evidence.[210]

(d) Documents Used in Cross-Examination by the Prosecution.

143. It is important to emphasise that the admission of a document into evidence in the course of the trial has no bearing on the weight, if any, subsequently attached to it by the Trial Chamber.

144. Exhibits P-81 to P-99 were used by the Prosecution to cross-examine the Accused Brima. These documents had either not been served on the Accused beforehand, or were served not long before their use in cross-examination[211]. However, the documents were not used to “introduce new evidence, but to challenge evidence of the witness [Brima] that is already on record.”[212] After each document was used in cross-examination, it was tendered in evidence by the Prosecution. All of the documents were admitted into evidence, mostly with the consent of the Defence, although some (Exhibits P-85, P-88, P-89 and P-90) were objected to.

145. In the case of Exhibits P-81, P-82, P-83, P-86 (statements claimed by the Accused Brima to have been signed by him under duress), P-88, and P-89 (confessional statements made respectively by Abu Sankoh and Tamba Gborie, who were both subsequently executed) the Trial Chamber had some doubt that the statements had been made voluntarily.

146. None of the authors of the documents were called to prove the documents or be cross-examined (in the case of Exhibits P-88 and P-89 the authors were said to be dead). In the absence of any proof, the Trial Chamber had some doubt as to the authenticity of Exhibits P-84 (a press list by the Security Council Committee for Sierra Leone), P-85 (a magazine article), P-90 (a copy of the death certificate of the father of the Accused Brima – objected to by the Defence), P-91 (an extract from the Registry of Birth, Deaths and Marriages, showing the death of the father of the Accused Brima, who disputed the details), P-92 (Hospital records disputed by the Accused Brima), P-93,
P-94, P-95, P-96, (newspaper articles disputed by the Accused Brima), P-98 (a declaration of means which the Accused Brima denied signing), and P-99 (a document giving details of the detention of the Accused Brima, which he denied).

147. In all the circumstances, although Exhibits P-81 to P-99 were admitted into evidence on the basis of their relevance, the Trial Chamber places no probative value on them.

3. Expert Testimony and Reports

148. Rule 94bis of the Rules governs the testimony of expert witnesses:

(A) Notwithstanding the provisions of Rule 66(A), Rule 73bis (B)(iv)(b) and Rule 73ter (B)(iii)(b) of the present Rules, the full statement of any expert witness called by a party shall be disclosed to the opposing party as early as possible and shall be filed with the Trial Chamber not less than twenty-one days prior to the date on which the expert is expected to testify.

(B)    Within fourteen days of filing of the statement of the expert witness, the opposing party shall file a notice to the Trial Chamber indicating whether:

(i)      It accepts the expert witness statement; or

(ii)     It wishes to cross-examine the expert witness.

(C)    If the opposing party accepts the statement of the expert witness, the statement may be admitted into evidence by the Trial Chamber without calling the witness to testify in person.

149. The Trial Chamber heard the testimony of five expert witnesses, three for the Prosecution[213] and two for the Defence.[214] They were cross-examined and their reports admitted into evidence. Pursuant to Rule 94bis(C), the report of a third expert witness for the Defence was admitted into evidence without calling the expert in person.[215]

150. The Trial Chamber has evaluated the probative value of the expert evidence taking into account the professional competence of the expert, the methodology used and the credibility of the findings made in the light of all the other evidence in the trial.[216]

151. Where an expert report went beyond its parameters by drawing conclusions touching upon the ‘ultimate issue’ in this case, i.e., the individual criminal responsibility of the Accused, the Trial Chamber disregarded its findings.[217]

4. Facts of which Judicial Notice was Taken

152. Rule 94 of the Rules is entitled “Judicial Notice” and provides as follows:

(A) A Chamber shall not require proof of facts of common knowledge but shall take judicial notice thereof.

(B) At the request of a party or of its own motion, a Chamber, after hearing the parties, may decide to take judicial notice of adjudicated facts or documentary evidence from other proceedings of the Special Court relating to the matter at issue in the current proceedings.


 

153. On 25 October 2005, the Trial Chamber issued a “Decision on the Prosecution Motion for Judicial Notice and Admission of Evidence”, taking judicial notice of 11 facts pursuant to Rule 94(A) of the Rules. These facts have been relied upon in this Judgement as indicated.

5. Agreed Facts

154. A number of facts in this case were admitted in whole or in part by the Defence.[218] There is no provision in the Rules pertaining to agreed facts. Nonetheless, it follows from the very nature of adversarial proceedings that the Parties may stipulate to any fact on which they reach consensus.[219] Before relying on these agreed facts as indicated in this Judgement, the Trial Chamber has subjected them, as all other evidence, “to the tests of relevance, probative value and reliability”.[220]

IV. CONTEXT OF THE ALLEGED CRIMES

A. Political Precursors

155. On 27 April 1961, Sierra Leone gained independence from colonial rule. In the years that followed, there were a number of military coups and Sierra Leone went into economic decline.[221]

156. The Revolutionary United Front (RUF) was established in the late 1980s as an organised armed opposition group. Its aim was to overthrow the government of Sierra Leone. The leader of the RUF was Foday Saybana Sankoh, a former Colonel in the Sierra Leone Army (“SLA”). Sankoh had been dishonourably discharged from the SLA after serving a seven year prison sentence for his alleged involvement in a foiled coup in 1971.[222]

B. The Armed Conflict in Sierra Leone from 1991 to 1997

157. The RUF initiated armed operations in Sierra Leone in March 1991.[223] By the end of 1991 the RUF held consolidated positions in Kailahun District and occupied small parts of Pujehun District.[224]

158. In 1992 junior ranks of the SLA staged a coup under the command of Captain Valentine Strasser and established the National Provisional Ruling Council (NPRC) Government.[225]

159. In the years that followed, the RUF took control over Bo and Bonthe Districts.[226] The military advance of the RUF and the inability of the SLA to drive back the RUF triggered the emergence of local militias consisting primarily of traditional hunters. The main regional groups were the Kamajors in the east and the south, the Donzos in the far east, the Gbettis or Kapras in the north and the Tamaboros in the far north of Sierra Leone.[227] These militias were known as the Civil Defence Forces (CDF) and fought on behalf of the Government.

160. By early 1995 the RUF was in control of large parts of Sierra Leone and had established a stronghold in the north of the country.[228] In March 1995, due to its continuing inability to defeat the RUF, the Government employed the services of a private South African security company called Executive Outcomes. Executive Outcomes trained the SLA and was able to dislodge the RUF from most of its positions.[229]

161. In March 1996 elections were held from which the Sierra Leone People’s Party, headed by Ahmad Tejan Kabbah, emerged victorious. Around the same time, the Government’s support of the CDF resulted in tensions between it and the SLA, as the SLA believed that the Government was neglecting the Army. These tensions reached a peak in 1996 when the SLA lost control of two districts to the Kamajors, one of the groups within the CDF. In late 1996 and early 1997, there were a number of armed clashes between the two groups. In September 1996, a retired SLA officer named Johnny Paul Koroma staged an unsuccessful coup against President Kabbah and was jailed.[230]

162. Ongoing peace negotiations between the Government and the RUF resulted in the Abidjan Peace Agreement, signed on 30 November 1996.[231] The Agreement called for the cessation of hostilities on both sides. In return for peace with the RUF, the Government agreed to grant amnesty to RUF members for any crimes committed before the signing of the Peace Agreement, and to terminate its relationship with Executive Outcomes. The parties further committed themselves to the disarmament, demobilisation and reintegration of RUF combatants.[232]

163. In early 1997, hostilities erupted between the SLA/CDF and the RUF and the peace process broke down.[233] Foday Sankoh was arrested in Nigeria on 1 March 1997, allegedly for a weapons violation, and placed under house arrest by the Nigerian authorities.[234]

C. The Armed Conflict in Sierra Leone from 1997 to 1998

1. The AFRC/RUF Government Period (May 1997 to February 1998)

(a) The 25 May 1997 Coup and the AFRC/RUF Government

164. On 25 May 1997, members of the SLA seized power from the elected Government of President Kabbah via a coup d’état.[235] The overthrow of the SLPP government was planned and executed by 17 junior rank soldiers, who were disgruntled with poor pay and discontented with the Government allocation of resources, which they believed favoured the CDF over the Army.[236] Johnny Paul Koroma was released from prison by the coup plotters[237] and appointed Chairman of the new Government, which was called the Armed Forces Revolutionary Council (AFRC).[238] Immediately thereafter, Koroma invited the RUF to join the AFRC Government.[239] Although still detained in Nigeria, Foday Sankoh accepted the offer and RUF fighters and commanders streamed into the capital from the provinces and joined the government.

165. Upon taking power, the AFRC government suspended the 1991 Constitution of Sierra Leone, dissolved the democratically elected Government and banned political parties.[240] Pursuant to their agreement, Foday Sankoh was appointed Johnny Paul Koroma’s deputy. As Sankoh was still absent, his post remained de facto vacant.[241] At a later stage, SAJ Musa, a senior member of the SLA, became de facto deputy to Johnny Paul Koroma.[242]

(b) Territorial Control of the AFRC/RUF Government

166. When the AFRC government took power in May 1997, it was not immediately able to exercise control over the entire territory of Sierra Leone. Bo and Kenema Districts were controlled by the CDF. Thus the armed forces of the AFRC government, comprising both AFRC soldiers and RUF fighters, undertook operations to gain control over these two districts. Bo Town was captured by the joint government forces from the CDF in approximately June 1997.[243] Two military operations were conducted on 24 or 25 June 1997 on Tikonko village in Bo District.[244] AFRC/RUF troops under the command of RUF Sam Bockarie (‘Mosquito’) took control over Kenema District in approximately May 1997.[245] AFRC Government forces maintained control over Kenema until February 1998, but hostilities with the CDF continued in the District throughout the period of the AFRC Government.[246]

167. From June 1997 the AFRC Government controlled most parts of Freetown and the Western Area, as well as Bo, Kenema, Kono, Bombali and Kailahun Districts. However, the Government remained under constant threat from the CDF and the forces of the Economic Community of West African States Monitoring Group (ECOMOG).[247]

168. ECOMOG forces maintained control of the international airport at Lungi (Port Loko District), which is on the north bank of the Sierra Leone River opposite Freetown.[248] ECOMOG forces launched attacks against the AFRC Government in June, July and at the end of 1997.

(c) Relationship between the AFRC and RUF

169. As the founders of the AFRC belonged to the Sierra Leone Army and therefore had been fighting the RUF since 1991, the coalition between the two factions following the 1997 coup was not based on longstanding common interests. Both factions officially declared that they were joining forces to bring peace and political stability to Sierra Leone.[249] On 18 June 1997, the RUF issued an official apology to the nation for its crimes and went on to praise Johnny Paul Koroma’s government.[250]

170. In the initial stages of the AFRC Government period, there was a high degree of cooperation between the upper ranks of the AFRC and the RUF. Commanders of both factions attended coordination meetings at which they planned operations[251] and organised joint efforts to obtain arms and ammunition.[252]

171. Nonetheless, from the earliest days there were tensions between the two factions and relations deteriorated over time.[253] In October 1997, Johnny Paul Koroma ordered the arrest of two RUF leaders on charges that they were plotting with the CDF to overthrow his government.[254] Not long after this incident, Koroma ordered the arrest of Issa Sesay, another top RUF commander, for his part in looting the Iranian Embassy in Freetown. In response the RUF stopped attending joint meetings.[255] In January 1998 Sam Bockarie, formally Vice-Chairman of the AFRC government in Foday Sankoh’s absence, left Freetown for Kenema District because of his discontent with AFRC commanders.[256]

172. Outside of Freetown, AFRC and RUF troops engaged in joint operations in Bo[257] and Kenema[258] Districts and also cooperated with regards to diamond mining, a critical government resource.[259] However, as in Freetown, the relationship began to deteriorate[260] and each faction began hoarding its own share of proceeds from diamond operations.[261] On one occasion Sam Bockarie refused an instruction from Johnny Paul Koroma to attack Nigerian soldiers arriving through Liberia saying that no one would tell him how to fight.[262]

(d) Military Pressure on the AFRC Government

173. In addition to regional military pressure from ECOMOG, the AFRC government was subjected to international political pressure. Both regional and international institutions passed resolutions pressing for the restoration of democracy. The pressure increased as human rights violations within Sierra Leone escalated.[263] On 8 October 1997, the United Nations imposed international sanctions on the AFRC government.[264]

174. On 23 October 1997, political, military and economic pressure on the AFRC Government forced it to accept the ECOWAS Six-Month Peace Plan, also known as the Conakry Accord. The Conakry Accord called for an immediate cessation of hostilities throughout Sierra Leone and the restoration of the constitutional Government by 22 May 1998.[265]

(e) The February 1998 ECOMOG attack on Freetown and the retreat of AFRC/RUF forces

175. Soon after the Conakry Accord was signed, hostilities resumed. ECOMOG forces attacked Freetown on 13 and 14 February 1998. The AFRC forces were not able to hold their positions and escaped through the Freetown peninsula.[266] The government of former President Kabbah was reinstated in March 1998.[267]

176. The retreat from Freetown was uncoordinated and without any semblance of military discipline. [268] AFRC soldiers and RUF fighters fled with their families using either civilian cars or army vehicles.[269] The fleeing troops passed through the villages of Lumley, Goderich, York and Tumbo. From Tumbo they crossed Yawri Bay to Fo-gbo. They then proceeded to Newton and Masiaka (Port Loko District).[270] It took three to four days for the troops to reach Masiaka.[271] This period is often referred to as “the intervention”.[272]

D. The Armed Conflict in Sierra Leone from 1998 to 2001

1. Post AFRC/RUF Government period (February 1998 to May 1998)

(a) Restructuring of the AFRC/RUF troops in the Districts (February 1998)

177. After the chaotic retreat from Freetown, the AFRC and RUF troops gathered in Masiaka but organisation and control remained minimal.[273] At Masiaka senior AFRC and RUF officers discussed the future of their movement. An initiative to recapture Freetown was abandoned due to insufficient arms and ammunition.

178. At Masiaka, Johnny Paul Koroma announced “Operation Pay Yourself” over the BBC. Koroma informed his troops that they he could no longer pay them and they would therefore have to fend for themselves.[274] Immediately thereafter the rebels began a widespread campaign of looting.[275]

(b) Planning the attack on Koidu Town (end February 1998)

179. In the days that followed, the troops moved without any obvious strategic aim except survival. Johnny Paul Koroma retreated to his native village Magbonkineh in Bombali District.[276] A large group of former soldiers, AFRC officials and RUF fighters travelled to Kabala in Koinadugu District.[277] At Kabala the senior commanders met to discuss strategies. SAJ Musa called for an attack on Kono District. He believed that, given the strategic importance of the District, such an operation would lead to international recognition.[278]

180. After the commanders agreed to the plan to recapture Kono District, Koroma arrived in Kabala and held a muster parade at which he explained to his soldiers that he could no longer pay them and that henceforth they would be subordinate to RUF command.[279] When SAJ Musa learned about Koroma’s decision, he was furious. He would not accept the notion that untrained RUF fighters could be in charge of former soldiers,[280] and insisted that the purpose of his group was to reinstate the army and that the RUF could not lead such a mission.[281]

181. In addition, before the operation to recapture Kono took place, a dispute erupted over command and control issues resulting in hostilities between the two factions and the deaths of several fighters.[282] As a result, SAJ Musa, and a significant number of AFRC troops loyal to him, opted not to participate in or support the operation.[283]

182. The remaining AFRC/RUF troops travelled towards Koidu Town. At Njema Sewafe the advancing troops were forced to retreat by the CDF. Johnny Paul Koroma and his fighters returned to Makeni. Another group of AFRC/RUF rebels launched a second successful attempt to capture Koidu Town on 1 March 1998. Johnny Paul Koroma arrived in Koidu town shortly thereafter.

2. Kono District (March 1998 to May/June 1998)

183. Johnny Paul Koroma took overall command of the AFRC/RUF troops.[284] Koroma and other former soldiers and RUF commanders attended a meeting at RUF commander Denis Mingo’s house. The discussion, chaired by Mingo, revolved around the relative positions of the AFRC and RUF. Koroma agreed with Mingo that the AFRC troops would be subordinate to the RUF, a decision which was unpopular with some of his own commanders.[285]

184. Once larger parts of Kono District fell to rebel control, Johnny Paul Koroma announced that he would travel abroad, via Kailahun District, in order to organise logistics for the troops.[286] Prior to his departure, he announced that the civilians had betrayed the troops by calling for support from the Kamajors (CDF) and that Kono should therefore become a ‘civilian no go area’.[287] Rebels were ordered to execute weak civilians and force stronger ones to join the movement. Koroma further ordered that civilian housing in the areas surrounding rebel headquarters was to be burned to prevent civilians from settling in Koidu Town.[288] Rebel fighters immediately began implementing Koroma’s orders.[289]

185. Within three days of his arrival in Koidu Town, around 4 March 1998, Johnny Paul Koroma departed for Kailahun.[290] The majority of AFRC fighting forces remained in Kono District alongside the RUF troops. Although the AFRC were subordinate to the RUF,[291] there was cooperation between them and the two factions planned and participated in joint operations.[292]

186. The villages targeted by the rebels in Kono District during the Indictment period included Koidu Geya, Koidu Buma, Paema, Penduma, Tombodu,[293] Kaima (or Kayima),[294] Koidu Town,[295] Foendor,[296] Bomboafuidu,[297] Yardu Sandu,[298] Penduma[299] and Mortema.[300]

3. Koinadugu and Kailahun District (February 1998 – November 1998)

187. The other faction of AFRC soldiers, under the command of SAJ Musa, remained in Koinadugu District throughout this period, working on and off together with RUF rebels there. However, the main stronghold of the RUF was Kailahun District, which was under the control of Sam Bockarie (‘Mosquito’).[301]

188. When Johnny Paul Koroma departed for Kailahun District he was given to believe that he would be welcomed there by the RUF.[302] However, when he arrived in Kailahun he encountered a hostile RUF leadership. He was arrested by Sam Bockarie, Issa Sesay and other RUF fighters.[303] He was then stripped and searched for diamonds and his wife was sexually assaulted.[304] Bockarie placed Koroma under house arrest in Kagama village near Buedu where he remained until mid 1999.[305] No evidence was adduced suggesting that Koroma had any form of contact whatsoever with any of his former associates during the remaining period covered by the Indictment.

4. Koinadugu and Bombali Districts (May 1998 – November 1998)

(a) Retreat from Kono District (April/May 1998)

189. AFRC troops maintained control over Kono District until April 1998 when ECOMOG forces advanced into Kono District.[306] Tensions between the AFRC and RUF forces in Kono had been escalating. As a result of the enemy advance and the exacerbating tensions between the two factions, the majority of the AFRC troops moved north to Mansofinia in Koinadugu District. Some former soldiers remained in Kono District and chose to operate independently or work more closely with the RUF, most notably a former soldier named ‘Savage’, who remained in Tombodu where he was the commander.[307]

190. At a meeting in Koinadugu District, various AFRC commanders met with SAJ Musa to discuss the future and develop a new military strategy. The commanders agreed that the troops who had arrived from Kono District should act as an advance troop which would establish a base in north western area Sierra Leone in preparation for an attack on Freetown. The purpose was to “restore the Sierra Leone Army”. There is no evidence that the RUF was involved in these deliberations.

191. The split with the RUF had considerable consequences for the AFRC troops. They no longer controlled diamond mining areas, meaning that they had no revenue sources. Consequently, they had difficulty accessing new supplies of weapons and ammunitions. The only source available to them was stocks captured from ECOMOG or the CDF.[308]

(b) AFRC Troop Movement from East to West (May 1998 – November 1998)

192. The advance team returned to Mansofinia and started a three month journey through Sierra Leone to Rosos, which is located in eastern Bombali District. From Mansofinia they travelled south into Kono District and passed Kondea, Worodu and Yarya, the hometown of the Accused Brima. From there the troops headed north east, back into Koinadugu District to Yifin, and then moved eastwards passing Kumala and Bendugu toward the area near Bumbuna (Tonkolili District). From there the troops headed further north east into Bombali District, passing Kamagbengbeh,[309] Bonoya, Karina, Pendembu[310] and Mateboi before finally arriving at Rosos.[311] The civilian population was routinely targeted and attacked by soldiers and fighters on that route.[312] Villages attacked by the troops on their path included Yiffin,[313] Yiraye[314] and Kumalu[315] in Koinadugu District and Mandaha,[316] Rosos,[317] Bornoya,[318] Mateboi,[319] Gbendembu,[320] Madina Loko,[321] Kamadogbo,[322] Kamagbengbe[323] and Batkanu in Bombali District.[324]

193. Much of the journey was conducted by foot. The troops were accompanied not only by their families but also by hundreds of civilians abducted from targeted villages. The troops settled in Rosos, where they remained for around three months (July – September 1998).[325] However, following ECOMOG discovery and bombardment of the camp, they travelled west to a village known as ‘Colonel Eddie Town.’[326] From ‘Colonel Eddie Town’ the troops staged a number of attacks on ECOMOG positions in order to supplement their dwindling stocks of arms and ammunition.[327]

194. While the advance team of the AFRC fighting forces travelled across the country from east to west, RUF troops under the command of Sam Bockarie maintained control over Kailahun Districtand parts of Kono District.[328] Villages attacked by RUF fighters in Kailahun District included Kailahun Town,[329] Daru[330] and Buedu.[331]

195. The faction of AFRC fighting forces under the command of SAJ Musa remained in Koinadugu District where they worked together with RUF troops loyal to RUF commander Denis Mingo, also known as ‘Superman’. Significant evidence was adduced regarding the commission of crimes by the troops under the command of SAJ Musa and Denis Mingo including at Koinadugu Town,[332] Kabala,[333] Yomadugu,[334] Bafodeya,[335] Kurubonla,[336] Bambukura[337] and Fadugu.[338]

5. Advance on Freetown (November to December 1998)

196. As the different factions were unable to communicate with each other, SAJ Musa sent a second advance group to locate the first advance team in or about September 1998. The route taken by this second group is not clear, but it appears that they travelled along a route similar to the one taken by the first advance team.

197. In October 1998, following an armed clash with Dennis Mingo, SAJ Musa left Koinadugu District to join the advance team and prepare for an attack on Freetown. SAJ Musa did not follow the same route taken by the advance teams in his journey to the west.

198. Upon his arrival in ‘Colonel Eddie Town’ in November 1998, SAJ Musa assumed command. He emphasised his disenchantment with the RUF and stressed that it was vital that his troops arrive in Freetown before the RUF.[339] SAJ Musa reorganised the troops and began the advance towards Freetown. The troops passed through the villages of Mange, Lunsar, Masiaka and Newton before arriving in Benguema in the Western Area in December 1998. Throughout the advance, the troops withstood frequent attacks by ECOMOG. Little evidence was adduced that the troops targeted civilians during this period, rather, they concentrated on purely military targets.

199. While the AFRC troops were advancing on Freetown, RUF troops in the east recaptured Koidu and planned an advance on Makeni in Bombali District. They reached Makeni in the final days of 1998.[340]

200. On one occasion during the advance, SAJ Musa and the AFRC troops heard the British Broadcasting Corporation (BBC) interview Sam Bockarie over the radio. Bockarie revealed the position of the AFRC fighting forces and explained that it was RUF troops who were approaching Freetown. Soon after, ECOMOG bombarded the area.[341] Musa immediately contacted Sam Bockarie, insulted him and told him he had no right to claim that the troops approaching Freetown were RUF troops.[342]

201. On 23 December 1998, shortly after the arrival in Benguema, SAJ Musa was killed in an explosion during an attack on an ECOMOG weapons depot.

6. Attack on Freetown (January 1999)

202. Following the death of SAJ Musa, the troops reorganised. On 6 January 1999, they invaded Freetown. From Benguema, the troops passed through the villages of Waterloo, Hastings, Wellington and Kissy. During the advance, the civilian population was increasingly targeted. The AFRC troops were able to capture the seat of government at State House on the morning of the 6th of January.[343] That same day, Sam Bockarie announced over Radio France International (RFI) that the troops led had taken Freetown and that that “they” would continue to defend Freetown.[344]

203. One of the first acts of the invading troops upon reaching Freetown was to attack the city’s central prison at Pademba Road and release all the prisoners. The release of the prisoners into the general population contributed to a general breakdown of order amongst the troops.[345] However, during the three days following the capture of State House, the AFRC fighting forces were able to control large areas of Freetown.

204. From State House, senior AFRC officers established radio contact with Sam Bockarie and asked for reinforcement. Bockarie instructed them to burn down Freetown if they could not hold the city.[346] Bockarie then announced over the BBC that if ECOMOG did not stop attacking troop positions the whole of Freetown would be burnt down.[347] In a second communication, Bockarie promised to send manpower, arms and ammunition, and arranged a location at which the AFRC troops should meet the RUF reinforcements. However, the support never arrived.[348]

205. The AFRC troops remained in Freetown for around three weeks, although they were not able to advance into the western part of the city. This period is often referred to as the “Freetown invasion”.

7. Retreat from Freetown (January/February 1999)

206. Following heavy assaults from ECOMOG, the troops were forced to retreat from Freetown. This failure marked the end of the AFRC offensive as the troops were running out of ammunition.[349] While the AFRC managed a controlled retreat, engaging ECOMOG and Kamajor troops who were blocking their way, RUF reinforcements arrived in Waterloo. However, the RUF troops were either unwilling or unable to provide the necessary support to the AFRC troops.[350]

207. Most of the damage to Freetown, especially the damage to infrastructure and civilian housing, was inflicted by the retreating AFRC forces. The AFRC were also responsible for massive civilian casualties.[351]

8. Port Loko District (February 1999 – April 1999)

208. The AFRC forces withdrew, reorganised and established bases in the Western Area, including at in Newton and Benguema. They remained there until approximately early April 1999, when the AFRC divided. One group travelled to Makeni in Bombali District to support one of several RUF factions involved in internecine battle. A smaller group moved to Port Loko District and settled in the region of the Okra Hills near Rogberi. This group became known as the “West Side Boys” and frequently targeted and attacked the civilian population. Towns and villages attacked included Masiaka,[352] Geribana,[353] Manaarma,[354] Sumbuya,[355] Nonkoba[356] and Tendakum.[357] These troops remained in Port Loko District until the negotiation of the Lomé Peace Accord.

E. The 1999 Lomé Peace Accord and the Cessation of Hostilities in Sierra Leone in 2001

209. Following the atrocities committed in Freetown in January 1999, the Kabbah Government was under pressure to enter into a peace agreement with the warring factions. The AFRC was not represented during the negotiations. On 7 July 1999, the Sierra Leone Government of Tejan Kabbah and the RUF signed a peace agreement known as the Lomé Peace Accord.[358] The Accord resulted in a power-sharing arrangement between the Kabbah Government and the RUF. Foday Sankoh, who until this time remained under house arrest in Nigeria, returned to Sierra Leone and became Vice-President. Hostilities resumed shortly thereafter, a final cessation of which only occurred in January 2002.[359]

V. GENERAL REQUIREMENTS FOR ARTICLES 2, 3 AND 4 OF THE STATUTE

A. Article 2 of the Statute: Crimes Against Humanity

210. The Accused are charged with seven counts of crimes against humanity pursuant to
Article 2 of the Statute: extermination (Count 3), murder (Count 4), rape (Count 6), sexual slavery and other forms of sexual violence (Count 7), enslavement (Count 13) and other inhumane acts (Count 8 and 11).

1. The Law

211. Article 2 of the Statute is entitled ‘Crimes against humanity’ and provides as follows:

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.

212. Article 2 of the Statute differs from similar provisions in the governing statutes of other international tribunals in that it does not specifically require such crime to have been committed “during armed conflict” (unlike its ICTY counterpart[360]), or “on national, political, ethnic, racial or religious grounds” (unlike its ICTR counterpart[361]), or with the perpetrator’s “knowledge of the attack” (unlike its ICC counterpart[362]).

213. The Trial Chamber endorses the following chapeau requirements or contextual elements of crimes against humanity pursuant to Article 2 of the Statute, as articulated in its Rule 98 Decision.[363]

(a) There must be an attack

214. An ‘attack’ has been defined as a “campaign, operation or course of conduct directed against a civilian population and encompasses any mistreatment of the civilian population”.[364] The concepts of ‘attack’ and ‘armed conflict’ are distinct and separate notions, even though, under Article 2 of the Statute, the attack on any civilian population may be part of an armed conflict.[365] The ‘attack’ can precede, outlast, or continue during an armed conflict, thus it may, but need not be, be part of an armed conflict as such.[366]

(b) The attack must be widespread or systematic

215. The requirement that the attack must be either widespread or systematic is disjunctive, so that once either requirement is met, it is not necessary to consider whether the alternative is also satisfied.[367] Proof that the attack occurred either on a widespread basis or in a systematic manner is sufficient to exclude isolated or random acts.[368] Each act occurring within the attack need not 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”.[369] 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.[370] 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.”[371] That the crimes were supported by a policy or plan to carry them out is not a legal ingredient of crimes against humanity. However, it may eventually be relevant to establish the widespread or systematic nature of the attack and that it was directed against a civilian population.[372] Patterns of crimes, i.e., the non-accidental repetition of similar criminal conduct on a regular basis, are a common expression of ‘systematic’ occurrence.[373] Accordingly, the Trial Chamber endorses the interpretation of the ICTY Appeals Chamber that

[t]he assessment of what constitutes a ‘widespread’ or ‘systematic’ attack is essentially a relative exercise in that it depends upon the civilian population which, allegedly, was being attacked. A Trial Chamber must therefore ‘first identify the population which is the object of the attack and, in light of the means, methods, resources and result of the attack upon the population, ascertain whether the attack was indeed widespread or systematic’. The consequences of the attack upon the targeted population, the number of victims, the nature of the acts, the possible participation of officials or authorities or any identifiable patterns of crimes, could be taken into account to determine whether the attack satisfies either or both requirements of a ‘widespread’ or ‘systematic’ attack vis-à-vis this civilian population.[374]

(c) The attack must be directed against any civilian population

216. There is an absolute prohibition against targeting civilians in customary international law.[375] 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.[376] 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.[377] 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.[378]

217. The use of the word ‘population’ does not mean that the entire population of the geographical entity in which the attack is taking place must have been subjected to that attack,[379] although the targeting of only a limited and randomly selected number of individuals cannot satisfy the requirements of Article 2.[380]

218. The presence of combatants within the “civilian population” does not change the civilian nature of the population. However, the Trial Chamber notes that the Prosecution defined the term “civilian” and “civilian population” as “persons who took no active part in the hostilities, or who were no longer taking an active part in the hostilities.”[381] This definition is usually used for persons protected under Common Article 3 and Additional Protocol II and also covers combatants who no longer take active part in hostilities (hors de combat). The definition proposed by the Prosecution would appear to cover all the references to the terms “civilian” and “civilian population” in the Indictment. With regards to alleged crimes under Article 2 of the Statute, however this definition is overly broad and inconsistent with customary international law.

219. Referring to principles of international humanitarian law, the Galić and Blaškić Appeal Judgements, distinguished between a person hors de combat and a civilian:

Persons hors de combat are certainly protected in armed conflicts through Common Article 3 of the Geneva Conventions. This reflects a principle of customary international law. Even hors de combat, however, they would still be members of the armed forces of a party to the conflict and therefore fall under the category of persons referred to in Article 4(A)(1) of the Third Geneva Convention; as such, they are not civilians in the context of Article 50, paragraph 1, of Additional Protocol I. Common Article 3 of the Geneva Conventions supports this conclusion in referring to “[p]ersons 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”. [emphasis added][382]

Therefore, the Trial Chamber concludes that the term civilian must be narrowly defined in order to ensure a distinction in an armed conflict between civilians and combatants no longer participating in hostilities. The fact that the persons are hors de combat during the commission of a crime, does not render them “civilian” or being part of the “civilian population” for the purposes of Article 2 of the Statute. This distinction is particular important in a case were the Prosecution alleges that crimes against humanity were committed in a situation of armed conflict.

(d) The acts of the perpetrator must be part of the attack

220. 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.[383] 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.[384]

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

221. 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.[385] Evidence of knowledge depends on the facts of a particular case; thus the manner in which this legal element may be proved may vary from case to case.[386] 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.[387]

222. It does not suffice that an accused knowingly took the risk of participating in the implementation of a policy, plan or ideology.[388] Nevertheless, the accused need not know the details of the attack or approve of the context in which his or her acts occur;[389] the accused merely needs to understand the overall context in which his or her acts took place.[390] The motives for the accused’s participation in the attack are irrelevant; the accused need only know that his or her acts are parts thereof.[391]

2. Submissions of the Parties

223. The Prosecution submits that the evidence adduced at trial suffices to prove the general requirements for crimes against humanity.[392] The Joint Defence submitted at the close of the Prosecution case that the Prosecution failed to prove the general requirements for crimes against humanity, although no specific detail was provided in support of this submission and it was not reiterated in their Final Briefs.[393]

3. Findings

224. The Trial Chamber finds that it is established beyond reasonable doubt that a widespread or systematic attack by AFRC/RUF forces was directed against the civilian population of Sierra Leone at all times relevant to the Indictment. The context in which the crimes alleged in the Indictment were committed has been described earlier in this Judgement.[394] Unless stated otherwise in the Factual Findings, the Trial Chamber is satisfied that each incident described therein formed part of a widespread or systematic attack within the meaning of Article 2 of the Statute. In arriving at this finding, the Trial Chamber has taken into consideration reliable witness testimony adduced in respect of any locations in Sierra Leone within the Indictment period and documentary evidence from a number of sources, having carefully considered each document cited and being satisfied as to its authenticity and reliability.

225. The attack against the civilian population of Sierra Leone during the period relevant to the Indictment evolved through two distinct stages and the Trial Chamber has divided its consideration of the evidence accordingly. The first stage coincides with the rule of the AFRC/RUF military government, from the May 1997 coup until the intervention of ECOMOG in February 1998. The attack against the civilian population was therefore state-sponsored, aimed broadly at quelling opposition to the regime and punishing civilians suspected of supporting the CDF/Kamajors.[395]

226. The second stage was precipitated by the removal of the AFRC/RUF government from Freetown, from which point onwards the two factions operated as non-state actors. The focal points of violence shifted as AFRC/RUF troops moved throughout the various provinces, faced with the challenge of more limited resources and poorer organisational capacity. The point has been made in the jurisprudence of the ICTY that such practical difficulties may typically result in attacks by non-State actors being less obviously classifiable as ‘widespread’ or ‘systematic’.[396] However, the Trial Chamber finds that this was not the case in Sierra Leone. Instead, the continued attack against the civilian population was in most instances more frequent and brutal.

(a) AFRC/RUF Government period

227. Reliable documentary evidence establishes that after the May 1997 coup, violence and human rights abuses against civilians increased. Extrajudicial killings, mutilation, amputations, rape and beatings of unarmed civilians were frequent.[397] The AFRC/RUF routinely directed attacks against civilians suspected of supporting the Kamajors, in the course of which civilians were shot and their property looted.[398] Such attacks were not limited to selected individuals. Rather, entire villages in the southern and eastern provinces were burned on the basis that they harboured Kamajors.[399]

228. In Bo District, for example, civilians were killed, property was looted and homes were burned during attacks executed jointly by AFRC/RUF troops on the villages of Tikonko, Gerihun, Sembehun and Telu Bongor in June 1997.[400] Kenema District was controlled by the AFRC/RUF from Kenema Town and frequent beatings and killings of civilians took place there throughout the junta period.[401] In December 1997, in Kenema Town, the AFRC/RUF declared a campaign code named ‘Operation No Living Thing’ which mandated the killing of civilians accused of being Kamajors.[402]

229. The diamond mines in Kenema District were also the site of sustained attacks on civilians. The AFRC/RUF mining operations at Tongo Field were particularly well-organised, with a system established for abducting large numbers of civilians and forcing them to work in the mines on certain days.[403] Witnesses testified that many civilians were assaulted or killed during this process.[404] This testimony is corroborated by documentary evidence from the US Department of State describing physical violence inflicted on civilian miners near Tongo Field.[405]

230. Certain features of this evidence prove that the attack against the civilian population was systematic. First, it was executed at the behest of the State, as AFRC/RUF government officials were routinely responsible for the commission of the crimes. In Bo District, for example, AFRC officials were involved in the burning down of the SLPP party office.[406] In Kenema Town, several alleged Kamajor supporters were arrested and detained at the police station, released on bail and then subsequently re-arrested and executed by AFRC officials.[407] A similar incident occurred in Kailahun District, where at least 57 alleged Kamajor supporters were arrested and shot by AFRC/RUF officials.[408]

231. The execution of the attack pursuant to pre-conceived policies or plans is an additional feature that demonstrates the systematic nature of the attack. The Trial Chamber is satisfied that civilians were forced to labour in the diamond mines in Tongo Field pursuant to a policy formulated and administered by the AFRC Secretariat.[409] In addition, the pattern of crimes evinces a policy that inflicting violence on civilians served to eradicate support for the Kamajors. The Trial Chamber emphasises in this regard that the alleged presence of Kamajors among the civilians does not preclude the characterisation of the attack as one directed primarily against the civilian population. The Trial Chamber accepts the submission of the Prosecution that throughout the junta period, the AFRC/RUF government sanctioned the commission of crimes against civilian population generally as a means of consolidating control and eliminating opposition to the regime.[410]

232. Although it is sufficient for the general requirements of crimes against humanity to establish that the attack was systematic, the Trial Chamber is satisfied that it was also widespread as AFRC/RUF attacks were carried out frequently against a large number of civilian victims and involved the simultaneous commission of multiple serious offences.

(b) Post AFRC/RUF Government Period (February 1998 January 200)

233. The retreat of the AFRC/RUF from Freetown in 1998 was characterised by the infliction of violence against civilians.[411] Documentary evidence authored by the United Nations and Human Rights Watch reports that attacks in villages across Sierra Leone continued regularly throughout the year.[412] Such attacks “exhibited a characteristic modus operandi: amputation of limbs, mutilation, actual or attempted decapitation, rape, burning alive of men, women and children, destruction of homes, abduction and looting”.[413] Numerous instances appear in the oral evidence of pregnant women being killed, beaten or raped in these attacks.[414] Civilians suffered amputations including arms, hands, feet, breasts, lips and ears.[415] The abducted civilians, numbered in their thousands[416], were forced to serve the AFRC/RUF as “porters, potential recruits or sex slaves”.[417] Women were actively targeted through sexual violence.[418] The phenomenon of the ‘bush wives’ witnessed thousands of women forcibly married to rebels.[419]

234. The fact that civilians were the primary target of the attack is amply demonstrated by the nature of the offences described above, the majority of which served no military purpose. Instead, evidence establishes that the infliction of mass violence on the civilian population was on occasion regarded as a legitimate method for advancing the AFRC/RUF cause. The town of Karina in Bombali District was attacked in May 1998 because it was the alleged home town of President Kabbah.[420] The stated aim of the attack was to shock the entire country and the international community.[421] In addition to Karina, AFRC and/or RUF forces attacked civilians in a number of other villages in Bombali District, including Mandaha,[422] Rosos,[423] Bornoya,[424] Mateboi,[425] Gbendembu,[426] Madina Loko,[427] Kamadogbo,[428] Kamalu,[429] Kamagbengbe[430] and Batkanu.[431]

235. A report admitted in evidence, authored by UNHCR officers, details numerous incidents of killings, mutilations, beatings and rapes of civilians in Kono and Koinadugu Districts in 1998.[432] This report is corroborated by documentary evidence and the testimony of both Prosecution and Defence witnesses pertaining to attacks by the AFRC and/or RUF in Kono, Koinadugu and Kailahun Districts. In Kono District, civilians were attacked in Tombodu,[433] Kaima (or Kayima),[434] Koidu Town,[435] Foendor,[436] Bomboafuidu,[437] Yardu Sandu,[438] Penduma[439] and Mortema.[440] In Koinadugu District, civilians were attacked in Koinadugu Town,[441] Kabala,[442] Yiffin,[443] Yiraye,[444] Yomadugu,[445] Bafodeya,[446] Krubola,[447] Bambukura[448] and Fadugu.[449] In Kailahun District, civilians were attacked in Kailahun Town,[450] Daru[451] and Buedu.[452] These locations are named on the basis that reliable evidence of attacks was adduced with respect to them. The Trial Chamber notes that these villages therefore represent a minimum assessment of the attack on the civilian population of Sierra Leone in the post-intervention period.

236. This attack culminated in the invasion of Freetown in January 1999, which has been described as “the most intensive and concentrated period of human rights abuses and international humanitarian law violations in Sierra Leone’s civil war”.[453] Reliable documentary evidence from several sources estimates that up to five thousand civilians were killed, one hundred had limbs amputated, thousands were raped, thousands were abducted, civilians were used by rebels as human shields and entire neighbourhoods were burnt to the ground, often with civilians inside their houses.[454] Eyewitnesses described the execution of members of religious orders[455] and civilians in mosques were also killed on suspicion that they had been harbouring ECOMOG soldiers.[456] A military expert testified that the damage to Freetown during the subsequent retreat appeared to have been a policy driven by spite as there was little military justification for the crimes committed.[457] Witnesses testified that violence against civilians continued over the following months in Port Loko, at locations including Masiaka,[458] Geribana,[459] Manaarma,[460] Sumbuya,[461] Nonkoba[462] and Tendakum.[463]

237. The above evidence suffices to establish the widespread nature of the attack against the civilian population in the post-intervention period, given the frequency with which attacks occurred over a prolonged period throughout much of the territory of Sierra Leone and the untold number of civilian victims affected.

238. Although it is not strictly necessary, the Trial Chamber finds that the regular pattern of crimes committed demonstrates that the attack was also systematic. In addition, it is evident from the declaration by AFRC/RUF leaders of a number of ‘operations’ targeted at civilians that pre-conceived plans or policies for the execution of the attack existed. One of the most notorious of these was ‘Operation Pay Yourself’ which officially sanctioned the looting of civilian property on an unprecedented scale so that the soldiers could support themselves.[464] ‘Operation Spare No Soul’ saw troops instructed to kill, maim or amputate any civilian with whom they came into contact, burn villages and rape girls and women freely.[465] The area surrounding the AFRC headquarters in Rosos, Bombali District, was secured through “Operation Fearful” and “Operation Clear the Area” which respectively mandated the killing of any civilian in the vicinity and the looting and burning of surrounding villages.[466]

239. The Trial Chamber is also satisfied beyond reasonable doubt that the Accused knew that their conduct formed part of this pattern of widespread or systematic attack. The evidence pertaining to this requirement will be presented in Chapter XI of this Judgement regarding the responsibility of the Accused.

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

240. The Accused are charged with six counts of violations of Article 3 Common to the Geneva Conventions (“Common Article 3”) and of Additional Protocol II, pursuant to Article 3 of the Statute: acts of terrorism (Count 1), collective punishments (Count 2), violence to life, health and physical or mental well-being of persons, in particular murder (Count 5), outrages upon personal dignity (Count 9), violence to life, health and physical or mental well-being of persons, in particular mutilation (Count 10), and pillage (Count 14).

1. The Law

241. Article 3 of the Statute is entitled ‘Violations of Article 3 Common to the Geneva Conventions and of Additional Protocol II’ and provides as follows:

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.

242. The Trial Chamber endorses the following chapeau requirements of Violations of Article 3 Common to the Geneva Convention and of Additional Protocol II pursuant to Article 3 of the Statute, as articulated in its Rule 98 Decision.[467]

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

243. 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 as these crimes are prohibited in all conflicts. Crimes during internal armed conflicts form part of the broader category of crimes during international armed conflict.”[468] 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.”[469] 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”.[470]

244. The criteria for establishing the existence of an armed conflict are the intensity of the conflict and the degree of organisation of the warring factions.[471] These criteria are used “solely for the purpose, as a minimum, of distinguishing an armed conflict from banditry, unorganised and short-lived insurrections, or terrorist activities, which are not subject to international humanitarian law”.[472]

245. International humanitarian law applies from the initiation of such armed conflicts and extends beyond the cessation of hostilities until a general conclusion of peace is reached; or, in the case of internal conflicts, until a peaceful settlement is achieved. Until that moment, international humanitarian law continues to apply on the whole territory of the warring States or, in the case of internal conflicts, the whole territory under the control of a party, whether or not actual combat takes place there.[473]

(b) There must be a nexus between the armed conflict and the alleged offence

246. For an offence to fall within the scope of Article 3 of the Statute, the Trial Chamber must establish that a sufficient link between the alleged breach of Common Article 3 or Additional Protocol II and the underlying armed conflict existed.[474] The rationale of the said requirement is to protect the victims of internal armed conflicts, but not from crimes unrelated to the conflict. The nexus is satisfied where the perpetrator acted in furtherance of or under the guise of the armed conflict.[475]

247. The following factors have been considered in the jurisprudence to determine if an act was sufficiently related to the armed conflict: whether the perpetrator was a combatant; whether the victim was a member of the opposing party; whether the act can be said to have served the ultimate goal of a military campaign; and whether the crime was committed as part of or in the context of the perpetrator’s official duties.[476]

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

248. Both Common Article 3 and Additional Protocol II protect only those persons who take no active or direct part in the hostilities, and those who have ceased to take part therein and are therefore placed hors de combat by sickness, wounds, detention or any other cause.[477] To fulfil this requirement, the Prosecution must prove the relevant facts of each victim with a view to ascertain whether that person was actively involved in the hostilities at the relevant time.[478]

2. Findings

249. The Trial Chamber finds that at all times relevant to the Indictment, there was an armed conflict in Sierra Leone. The Trial Chamber took judicial notice of the fact that the conflict in Sierra Leone lasted from March 1991 until January 2002 and involved the RUF, AFRC and CDF.[479] The Defence for each of the three Accused admitted the fact that at all times relevant to the Indictment, a state of armed conflict existed throughout the territory of Sierra Leone.[480]

250. In relation to the character of the armed conflict, the Prosecution submitted in their Final Brief that Articles 3 and 4 of the Statute apply to both international and non-international armed conflicts.[481] While the distinction between non-international and international armed conflicts remains of consequence in international humanitarian law, the characterisation of the armed conflict in Sierra Leone was not canvassed at trial and no submissions were made on it by the parties. For this reason, the Trial Chamber confines itself to the following brief observations.

251. The Trial Chamber finds that the armed conflict in Sierra Leone was non-international. This conclusion is derived from the application of the two-pronged test for the internationalisation of non-international armed conflicts developed in the jurisprudence of the ICTY.[482] There is no evidence before the Trial Chamber that proves beyond reasonable doubt that a third State intervened in the conflict, either through its own troops or alternatively by exercising the requisite degree of overall control over some of the conflict’s participants to find that they acted on its behalf. Nonetheless, the Trial Chamber reiterates that this finding is immaterial to its jurisdiction as Articles 3 and 4 of the Special Court’s Statute apply where an armed conflict was in existence when the crimes were committed, regardless of whether such conflict was non-international or international in character.

252. The Trial Chamber considers it important to acknowledge that the armed conflict throughout Sierra Leone pre-dated the involvement of the AFRC and the May 1997 coup constituted a turning point in this regard. Prior to May 1997, there existed a state of armed conflict between the Kabbah Government and the RUF, which the 1996 Abidjan Peace Accord failed to resolve.[483] After the coup, the armed conflict continued but was now conducted by RUF and former SLA troops, on behalf of the AFRC/RUF government, fighting against ECOMOG and the CDF/Kamajors, on behalf of the Kabbah Government. Documentary evidence establishes that regular armed clashes between the two sides occurred throughout the remainder of 1997.[484]

253. The armed conflict continued along the same lines after the ECOMOG intervention which saw the Kabbah government reinstated.[485] The May 1999 Ceasefire Agreement and the July 1999 Lomé Peace Treaty both provided for the cessation of the armed conflict,[486] which did not eventuate.[487] Although these agreements referred only to the RUF, it is apparent from documentary evidence that the AFRC/RUF staged joint attacks periodically throughout 1999.[488] In addition, AFRC and RUF leaders made a joint public statement in October 1999 which referred repeatedly to the prior state of ‘war’ and proclaimed their unified commitment to implementing the Lomé Treaty.[489] The Trial Chamber is therefore satisfied that the AFRC remained actively engaged in hostilities until the end of the Indictment period in January 2000.[490]

254. The Trial Chamber finds that the crimes were closely related to this conflict.[491] Unless indicated otherwise in Chapter X of this Judgement, the Facts and Findings, the Trial Chamber is also satisfied that all victims were not directly taking part in the hostilities at the time the crimes occurred.

C. Article 4 of the Statute: Other Serious Violations of International Humanitarian Law

255. The Accused are charged with one count of ‘other serious violations of international humanitarian law’ pursuant to Article 4(c) of the Statute: conscripting or enlisting children under the age of 15 years into armed forces or groups, or using them to participate actively in hostilities (Count 12).

1. The Law

256. Article 4 of the Statute is entitled ‘Other Serious Violations of International Humanitarian Law’ and provides as follows:

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.

257. The crimes listed in Article 4 of the Statute possess the same chapeau requirements as those in Article 3 of the Statute.[492]

2. Findings

258. As stated above, the Trial Chamber finds that at all times relevant to the Indictment, there was an armed conflict in Sierra Leone and that the crimes were closely related to this conflict.[493] Unless indicated otherwise in its Factual Findings, the Trial Chamber is also satisfied that all victims were not directly taking part in the hostilities at the time the crimes occurred.

VI. POLITICAL STRUCTURE OF THE AFRC GOVERNMENT

A. Introduction

259. The Trial Chamber will review the evidence on the AFRC Government structure in order to assess the authority of those government bodies to which one or all Accused are alleged to have belonged during the AFRC Government period between May 1997 and February 1998. Establishing the influence and authority exercised by the Accused will precede any findings on their role[494] and their responsibility[495] for the crimes allegedly committed in this period.[496]

260. The Indictment alleges that the three Accused were “senior members of the AFRC/Junta.”[497] Specifically, it alleges that all three Accused were members of the “Junta governing body”[498] and that the Accused Brima and Kamara were “Public [sic] Liaison Officers” (PLOs) in the AFRC government.[499]

261. In its Final Brief, the Prosecution argues that as members of the governing council of the AFRC Government, the three Accused were responsible for the day-to-day decision making of the government,[500] and that the Accused Brima and Kamara, as PLOs, were superior to all other members of the governing council save Johnny Paul Koroma and SAJ Musa.[501] It further submits that the governing council and its members had political authority over the military[502] and that Regional Secretaries (or Ministers) acted as links between the governing council and the military forces deployed in the provinces.[503] Finally, the Prosecution contends that the Accused derived authority by virtue of the rule that political appointment superseded military rank during the AFRC Government period.[504]

262. The Brima and Kamara Defence argue that the AFRC was a military government and that military governments tend to appoint soldiers to political office, but that this does not mean that those soldiers holding political offices are necessarily involved in formulating military strategy. They further contend that during the AFRC Government period, Johnny Paul Koroma was the commander-in-chief of an army with a functioning chain of command that included Colonels and a Brigadier.[505] They submit that Colonel Avivavo Kamara was the Deputy Defence Minister and a member of the Supreme Council and that in that role he was the individual responsible for assisting the commander-in-chief and the Supreme Council in initiating defence and security policies.[506] In addition, the Brima and Kamara Defence submit that there were AFRC Ministers in charge of Kenema and Bo Districts, which are the two Districts where crimes were allegedly committed during the AFRC Government period.[507]

263. Further submissions of the Parties will be addressed below as they arise with regards to specific contested facts.

B. The Armed Forces Revolutionary Council Government

264. On 25 May 1997, the SLPP Government of President Kabbah was overthrown by low level soldiers of the Sierra Leone Army (“SLA”) belonging to the ‘other/lower ranks.’[508] Those involved in the coup immediately released Major Johnny Paul Koroma from the prison in Freetown where he had been held on charges of participating in an earlier coup attempt against the Government. Johnny Paul Koroma was appointed Chairman of the new government which was named the Armed Forces Revolutionary Council (“AFRC”).[509]

265. On 28 May 1997, the AFRC suspended the 1991 Constitution of Sierra Leone, dissolved the Sierra Leone Parliament, and banned membership of political parties.[510] In place of the former government, a proclamation signed by Johnny Paul Koroma was issued announcing the establishment of the Armed Forces Revolutionary Council. According to the Proclamation, the AFRC would consist of (a) a Chairman, (b) a Deputy Chairman, and (c) between 27 and 40 “other members.”[511] The Proclamation also declared that the AFRC would have the power to make laws “for purposes as it may think fit, and in the national interest.”[512]

266. Subsequently, Johnny Paul Koroma invited the Revolutionary United Front (“RUF”) leadership to join the Government.[513]

267. The AFRC Government was composed of a Chairman[514], a Deputy Chairman[515], a Secretary-General,[516] a governing council,[517] Principal Liaison Officers (PLOs),[518] the Armed Forces,[519] a Police and a Defence Council,[520] Secretaries of State (Regional Ministers),[521] and other Ministers.[522]

268. The Chairman of the AFRC Government and Head of State was Johnny Paul Koroma, who was also the Chairman of the Supreme Council and Commander-in-Chief of the Armed Forces.[523] Although under house arrest in Nigeria, RUF leader Foday Sankoh, was appointed Deputy Chairman of the AFRC Government and member of the Governing Council.[524] At an unknown time he was replaced by SAJ Musa, an AFRC commander, who also held the positions of Secretary of Mineral Resources and Chief Secretary of the AFRC Council.[525] The AFRC’s Secretary-General was AK Sesay.[526]

269. The AFRC Government also included positions known as Principal Liaison Officers (PLOs) who supervised specific ministries.[527] TF1-334 testified that PLOs reported directly to Johnny Paul Koroma.[528] On the question of the chain of command, there was evidence from TF1-334 that PLO 1 was immediately subordinate to the AFRC Vice-Chairman, SAJ Musa.[529]

270. A Council of Secretaries was established on 10 July 1997 which was “directly and collectively responsible for the Armed Forces Revolutionary Council.”[530] The Council of Secretaries consisted of the Chief Secretary of State, who was the head of the Council of Secretaries, and other Secretaries of State which the Armed Forces Revolutionary Council from time to time appointed.[531] SAJ Musa, as Chief Secretary of State, was appointed as the head of the Council of Secretaries.[532] The three Accused were not members of the Council of Secretaries.[533] Apart from the membership of SAJ Musa, no other member of that body was mentioned in evidence.

271. The AFRC Government also included three Regional Ministers, also known as Regional Secretaries: for the North (Mr. Kamara a.k.a. Bushfall); South (AF Kamara, aka Ambush), and East (Eddie Kanneh). These men reported directly to the Chairman and were also supervised by the Deputy Chairman.[534]

272. The most complete evidence on the military command and reporting structure within the AFRC government was provided by Witness TF1-334, whose testimony on this point was not contested by the Defence in cross-examination. The Commander-in-Chief of the Armed Forces was Johnny Paul Koroma. Avivavo Kamara, the Deputy Defence Minister, reported directly to Koroma but was also subordinate to SAJ Musa.[535] Avivavo Kamara’s immediate subordinate was the Director of Defence, Brigadier Mani. Brigadier Mani’s subordinate was SFY Koroma, Johnny Paul Koroma’s brother and the Chief of Defence Staff. SFY Koroma’s immediate subordinate was the Chief of Army Staff, Brigadier SO Williams, also known as Kowas.[536]

1. The Governing Council of the AFRC Government

273. The Prosecution contends that the Supreme Council was the sole executive and legislative authority within Sierra Leone during the AFRC Government period[537] and that “[t]he Supreme Council and its members had political authority over the military [command], which fell under the ultimate authority of Major Johnny Paul Koroma.”[538]

274. The Brima Defence argues that there was no body called the Supreme Council, and notes that while the Prosecution was able to produce several Government Gazettes it was unable to produce one referring to a Supreme Council.[539] It points to Exhibit P-78 arguing that there were three bodies: 1) the Armed Forces Revolutionary Council; 2) the Supreme Council; and 3) the Armed Forces.[540] The Accused Brima testified that there were two bodies, the Council and the Supreme Council. The latter, he said, was the body responsible for taking decisions and making laws, while the former only made recommendations to the Supreme Council.[541]

275. Thus the issue arising is whether there was one body known as the “Supreme Council” or “Council,” or whether there were two distinct bodies with distinct functions.

276. Exhibit P-4, a copy of a proclamation issued by the new AFRC Government on 28 May 1997, states that the Armed Forces Revolutionary Council would consist of (a) a Chairman, (b) a Deputy Chairman, and (c) “other members” not exceeding 27 in number.[542]

277. Exhibits P-6 and P-7, both Government Gazettes, name 34 persons as members of the Armed Forces Revolutionary Council, including Johnny Paul Koroma, Foday Sankoh, SAJ Musa, the three Accused, as well as members of the RUF such as Sam Bockarie, Morris Kallon, Issa Sesay, Gibril Massaquoi, Mike Lamin and Eldred Collins. The gazettes name no military commanders apart from Johnny Paul Koroma, SAJ Musa and Flight Lieutenant King.[543] However, many of the names the Accused Brima referred to in his testimony as having been members of the “lower” Council overlap with the names in Exhibits P-6 and P-7.[544]

278. Exhibit P-78 is an AFRC Press release dated 3 January 1998. It announces that “the following People’s Revolutionary Leaders and State Monitors have been sacked from the Supreme Council of State, the Armed Forces Revolutionary Council, and the armed forces with immediate effect ...”,[545] suggesting that these were at least two distinct and separate bodies.

279. In addition to the documentary evidence, several witnesses testified on the subject of the governing council.

280. Gibril Massaquoi testified that the Supreme Council was the body overseeing law making and decision making of the AFRC,[546] but also said there were occasions on which the Supreme Council simply endorsed decisions made by yet another body known as The High Table, a group composed exclusively of Johnny Paul Koroma, SAJ Musa, SFY Koroma, Abu Sankoh and Sam Bockarie, or Issa Sesay in Sam Bockarie’s absence.[547] The Trial Chamber notes that Gibril Massaquoi is the only witness who admits to having been a member of the Supreme Council,[548] and therefore accords particular weight to his testimony regarding that body.

281. Witness TF1-334 testified that during the Junta period the terms Council and Supreme Council were used synonymously,[549] and that this body was responsible for carrying out the day-to-day activities of the Government.[550] Although the witness never personally attended meetings of the governing council, he assisted his supervisor who was illiterate to review and discuss the documents distributed at the meetings, including minutes.[551] The Trial Chamber is satisfied that given the witness’ explanation, together with the degree of precision with which he was able to describe details of the government structure, and the fact that the witness was not shaken on cross-examination, that Witness TF1-334 is credible and reliable on the subject of the AFRC political structure.

282. The Trial Chamber notes that in addition to the aforementioned Prosecution witnesses, one Defence witness, DBK-012, also testified that the Supreme Council was the key decision-making body within the AFRC government.[552]

283. The Accused Brima, on the other hand, testified that the Supreme Council was the body responsible for taking decisions and making laws, while the Council only made recommendations to the Supreme Council.[553] The existence of a second body is supported by Gibril Massaquoi’s testimony about a High Table, a group composed exclusively of Johnny Paul Koroma, SAJ Musa, SFY Koroma, Abu Sankoh and Sam Bockarie, or Issa Sesay in Sam Bockarie’s absence.[554] The Trial Chamber notes, however, that the composition of the Supreme Council as described by the Accused Brima does not match The High Table described by Massaquoi. According to the Accused Brima, in addition to Johnny Paul Koroma and SAJ Musa, members of the Supreme Council included top military commanders and the regional ministers, as well as senior leaders of the RUF.[555]

284. Exhibit P-69 is a copy of minutes of a meeting of the AFRC Secretariat held on 9 December 1997 at which the Accused Brima and the Accused Kamara were present along with twelve other persons.[556] Exhibit P-34 shows minutes of an Emergency “Council Meeting of the AFRC” held on
11 August 1997 at which the Accused Brima and Accused Kamara as well as 13 others, including members of the RUF, were present. These minutes conclude: “it was noted that as Members of the Highest Council in the Land, members should conduct themselves appropriately.”[557]

285. The Trial Chamber finds that the Prosecution has established beyond a reasonable doubt that the Government headed by Johnny Paul Koroma was named the Armed Forces Revolutionary Council, colloquially known as the ‘Junta’. Within that Government, there was a governing body, called interchangeably the Council or the Supreme Council. This council had both legislative and executive powers, and it was the body responsible for the day-to-day decision making of the AFRC government. The Trial Chamber also finds it established beyond a reasonable doubt that as “the Highest Council in the Land”, the Governing Council exercised political control over the military branch of the government.

2. Information Available to the Governing Council

286. The Prosecution contends that minutes of Supreme Council meetings were circulated to all members.[558] From this fact it asks the Trial Chamber to infer that Supreme Council members were aware of all developments around the country.[559]

287. The Trial Chamber notes that minutes of two other Council meetings held in August and December 1997 were apparently circulated to all Council members.[560] Witness TF1-045 described attending two meetings, one in September 1997 and the other in October/November of the same year, attended by high-ranking members of both the AFRC and RUF, and chaired by the Army Chief of Staff. Those present discussed relations between the two factions, the supply of ammunitions and weapons, and methods with which to prevent government forces from harassing the civilian population.[561] Those present at the second meeting also discussed international pressure on the AFRC regime to restore the Kabbah government, and the formation of a delegation to attend peace talks in Conakry.[562]

288. The Trial Chamber is satisfied on the evidence that security issues and other urgent matters were discussed at these meetings. Therefore, the Trial Chamber finds that Supreme Council members were appraised of all major developments around the country.

3. Principal Liaison Officers (“PLOs”)

289. In its Final Brief, the Prosecution contends that “[t]he PLO’s position in government was an extremely important one. They were members of the Supreme Council and superior to all members of that Council, save Johnny Paul Koroma, SAJ Musa and AK Sesay.”[563]

290. The Kamara Defence submits that even if it is established that an Accused was a Principal Liaison Officer, this only suggests that he held “some kind of government position,” and does not establish that the Accused had military powers or that the position gave him any powers of command and control over the rank and file of the Sierra Leonean army.[564]

291. According to a Government Decree establishing the office of the Principal Liaison Officer, PLOs were to be responsible for “supervising, monitoring and coordinating the operations of any Department of State or such other business of Government, as may from time to time be assigned to him.”[565] However, the only evidence of such a task being assigned to the PLOs appears in exhibit P-34. According to the minutes of an emergency meeting of the Council held on 11 August 1997, a decision was made that “[a]ll Principal Liaison Officer must have effective control over the Honourable Members of the Council.”[566] This suggests that Principal Liaison Officers were superior to other members of the Council.

292. The Prosecution further argues that “based on the evidence as a whole regarding the Supreme Council and the PLOs, there can be no doubt that PLOs in the AFRC hierarchy [were senior to other council members] and were only beneath Johnny Paul Koroma and SAJ Musa in the AFRC chain of command.”[567] It further points to exhibit P-5.3, a Decree establishing a Council of Secretaries “which was to be directly and collectively responsible to the AFRC” to suggest that the PLOs had a status above that of the Regional Secretaries.[568]

293. The Decree referred to by the Prosecution prescribes the duties of the Council of Secretaries as follows

be responsible for the preparation and consideration of policy papers or matters and shall advise the Armed Forces Revolutionary Council and make recommendations on matters of good governance

execute the policies and directive of the Armed Forces Revolutionary Council.

294. These duties are clearly subordinate to the duties of a PLO which are to supervise and monitor ministries.

295. The Trial Chamber that the PLOs were superior to the Regional Secretaries.

4. Honourables

296. In its Final Trial Brief, the Prosecution submits that all the coup plotters were known as ‘honourables’, with this position superseding rank and giving them power, influence and command over more senior officers in the SLA.[569]

297. The position of the Brima Defence is that the title of ‘Honourable’ was an honorific akin to ‘Doctor’ or ‘Professor’ in certain other countries, and that numerous individuals apart from the Accused and the coup plotters held this title.[570]

298. DAB-156 testified that it was possible to acquire the title of ‘Honourable’ in other ways.[571] Witness DBK-131 also testified that numerous individuals who had not taken part in the coup were also given the title of ‘Honourable’, including the witness himself. He added that over 200 soldiers who were referred to as Honourables, and that wealthy individuals were also often able to acquire the title of ‘Honourable’.[572] However, this assertion was never put to Prosecution witnesses and in the view of the Trial Chamber is not persuasive.

299. The Trial Chamber is satisfied that the title of ‘Honourable’ was conferred on all 17 Coup plotters and was not merely a title denoting respect. [573]

C. Conclusion

300. The Trial Chamber is satisfied that the governing council of the AFRC government was the Supreme Council, sometimes simply referred to as the “Council.” It had both legislative and executive powers and was responsible for the day-to-day decision making of the AFRC Government. It further finds that the Principal Liaison Officers were members of that Council, that they were responsible for supervising various ministries, and that they were superior to other members of the Supreme Council and the Council of Secretaries.

VII. ROLE OF THE ACCUSED

A. Introduction

301. In this Chapter, the Trial Chamber will examine the personal backgrounds of each Accused and their functions, positions and whereabouts within the Indictment period from May 1997 to January 2000. Establishing the influence and authority exercised by the Accused during this period will precede any findings of the Trial Chamber on their criminal responsibility for the crimes alleged during this time period.[574]

B. Alex Tamba Brima

1. Allegations and Submissions

302. The Indictment alleges that the Accused Brima “at all times relevant to the Indictment was a senior member of the AFRC, Junta and AFRC/RUF forces”.[575] It also alleges that he was a “Public [sic] Liaison Officer (PLO)”[576] and “member of the Junta governing body” within the AFRC government.[577] It further charges that the Accused Brima was “in direct command of AFRC/RUF forces in Kono District” between mid February 1998 and about 30 April 1998[578] and “AFRC/RUF forces which conducted armed operations throughout the north eastern and central areas of the Republic of Sierra Leone, including, but not limited to, attacks on civilians in Bombali District between about May 1998 and 31 July 1998”.[579] Finally, it alleges that the Accused Brima “was in command of AFRC/RUF forces which attacked Freetown on 6 January 1999”.[580]

303. The Defence presented by the Accused involved claims of alibi, illness and mistaken identity. Regarding the mistaken identity, the Accused asserted: 1) That he was named “Tamba Brima” and not “Alex Tamba Brima”; 2) In addition, that he did not play football and therefore was not nicknamed ‘Gullit’ after a Dutch footballer of the same name.

304. Regarding the AFRC Government period, the Accused Brima asserts that while he was formally a member of a governing council called “the Council” and held the position of PLO 2,[581] he was often too ill to carry out his functions.[582] Moreover, while the Accused concedes that he did spend some time in Kono District during the AFRC Government period, he states that he did so for personal reasons and was not involved in diamond mining for the government in that district.

305. The alibi of the Accused for the subsequent periods covered by the Indictment can be summarised as follows: (1) immediately following the fall of the AFRC Government in February 1998, he left Kono District for Kailahun District where he was detained by the RUF until July 1998. Therefore, he was not present in Kono District during the period February through June 1998, nor was he in Koinadugu District during the first part of the Indictment period (February through July 1999);[583] (2) upon his release from detention in Kailahun, the Accused Brima returned to his family’s hometown in Kono District where he went into hiding for two months;[584] (3) in September 1998, he was again arrested and detained, this time by members of the AFRC. These men took the Accused from his family’s village in Kono District to ‘Colonel Eddie Town’ in Bombali or Port Loko District and kept him in detention as they moved towards Freetown;[585] (4) at Goba Water in the Western Area, days before the troops invaded Freetown on 6 January 1999, the Accused was able to escape and make his way to Makeni in Bombali District.[586] Thus, the Accused did not participate in the commission of any of the crimes alleged in the Indictment.[587]

306. The Brima Defence also contends that key Prosecution witnesses were unreliable[588] and that other named persons were responsible for the campaign of atrocities depicted by the evidence.[589]

307. The Trial Chamber will address the alibi of the Accused Brima and the Prosecution and Defence submissions and evidence in detail when reviewing the allegations regarding his various roles over the Indictment period.

2. Personal Background of Brima

308. According to Brima, he was born on 23 November 1971 at Wilberforce in Freetown.[590] Brima notes, however, that Yaryah in Kono District is his family’s native village.[591] He is Christian and married with two wives, Margaret Brima and Nenneh Galleh Brima. He married the latter after the death of his brother Komba Brima.[592] Alex Tamba Brima had eleven brothers, four of whom are still alive[593] and were serving in the Sierra Leone Army in 1997 and continue to do so, including two also named Tamba Brima.[594]

309. Brima enlisted into the Sierra Leone Military Forces at Lungi Garrison on 5 June 1991,[595] and not in April 1985 as the Indictment alleges.[596] He rose to the rank of Corporal, a rank which he held until May 1997.[597] During the AFRC/RUF Government period he was promoted to the rank of Staff Sergeant.[598]

310. Brima retired from the army on 10 August 2001.[599] The Accused Brima testified that he was a petty trader after his resignation from the army.[600] The Prosecution has adduced evidence that he was a miner and politician at the time of his arrest in 2003.[601]

3. The Identity of Brima

311. The Accused Brima denies that his first name is ‘Alex’ and claims that he is a victim of mistaken identity.[602] During Brima’s initial appearance on 15 and 17 March 2003, the Presiding Judge asked the Accused to confirm that he was “Alex Tamba Brima” and he did so.[603] Many witnesses, Prosecution and Defence, referred to the Accused as ‘Alex’ Tamba Brima.[604] Official AFRC governmental decrees also refer to “Alex T. Brima”.[605] The Trial Chamber is therefore satisfied that the full name of the Accused is “Alex Tamba Brima.”

312. In his Pre-Trial Brief and in his testimony, the Accused denied having the nickname ‘Gullit’ after a former Dutch football player.[606] Although he did not mention it in his Pre-Trial brief, at trial he testified that it was his brother, Komba Brima, who was known as “Gullit.” [607] He further testified that he played volleyball and not football as a hobby. [608] Numerous witnesses, both for the Prosecution[609] and for the Defence,[610] confirmed that because Alex Tamba Brima was a respected football player, he was commonly known as ‘Gullit’, after the former Dutch football player Ruud Gullit.[611] The Trial Chamber is accordingly satisfied that the Accused was commonly referred to by the nickname ‘Gullit’.

4. Positions of Responsibility in the AFRC Government (25 May 1997 – 14 February 1998)

313. The Indictment alleges that the Accused Brima “at all times relevant to this Indictment, Alex Tamba Brima was a senior member of the AFRC, Junta and AFRC/RUF forces.”[612] It further alleges that the Accused “was a member of the group which staged the coup and ousted the government of President Kabbah” and a “Public [sic] Liaison Officer (PLO) within the AFRC”.[613] In addition, Alex Tamba Brima was a member of the junta governing body.”[614] In its Final Brief, the Prosecution argues that by virtue of these positions, the Accused Brima played a fundamental role in the AFRC Government, that he regularly attended Supreme Council meetings and that he held an important position in the mining industry. The Prosecution further contends that that he had power and authority over soldiers and officers of higher rank during the AFRC government period, and that he was aware of the government’s policy of forced mining.[615]

314. The Brima Defence submits that whether or not the Accused Brima was a member of the group that organised the 25 May 1997 coup has no bearing on the allegations against him, and notes that while 24 military personnel were charged with the offence of treason by the Government of Sierra Leone, he was not one of them.[616] The Defence adds while the Accused was PLO 2 in the Junta Government,[617] he was too ill to carry out his functions.[618] In addition, it contends that the Accused was a member of a governing council, but not the ultimate decision making body within the AFRC government.[619]

315. The Accused denied that he was involved in the 25 May 1997 coup, and explained that he was awarded a government position in recognition of his father’s good service to the Army.[620] The Accused testified that he was in and out of the hospital during the AFRC Government period and that he was too ill during this period to perform his official duties.[621] He added that he did travel to Kono District during this period but only on personal business: in October 1997 to visit his mother, for a week in December 1997 to marry, and again in February 1998 to consult a local healer. He was in Kono when ECOMOG ousted the AFRC regime in Freetown.[622]

(a) Involvement in the 25 May 1997 Coup

316. The Trial Chamber notes that although the Accused Brima denies that he was involved in the coup,[623] numerous witnesses, both for the Prosecution and for the Defence, testified that he was one of the individuals who planned and took part in the coup.[624] Thus, the Trial Chamber is satisfied that the Accused Brima was involved in the 1997 coup.

317. The Trial Chamber is satisfied that in return for his participation in the coup, the Accused Brima was rewarded with specific functions in the AFRC Government. He remained in those positions until that government was ousted by the ECOMOG forces in February 1998.

(b) Council Membership

318. While the Accused argued that there were two decision-making councils in the AFRC government, and that he was only a member of the body with less power and influence, the Trial Chamber found that there was only one governing council, namely the Supreme Council.[625] Both Prosecution and Defence witnesses testified that the Accused was on this Council[626] and indeed the Accused himself concedes that he was on a governing council. The Trial Chamber is therefore satisfied that the Accused was a member of the AFRC’s Supreme Council and that he obtained his seat in return for his participation in the coup. As a council member, Brima attended coordination meetings between high-ranking members of the AFRC and RUF.[627]

319. The testimony of the Accused Brima regarding his title as ‘Honourable’ is ambiguous. He denies that he was known as an “Honourable,” but allows that persons may have referred to him as such.[628] In its closing arguments, the Brima Defence clarified that the Accused only said “If people call me that, fine, but I have never called myself Honourable”.[629] The Trial Chamber is satisfied that the Accused was referred to by the title of “Honourable”, as this title was conferred on all 17 coup plotters and was not merely a title denoting respect.[630]

(c) Principal Liaison Officer 2

320. The Accused does not dispute that he was appointed to the position of Principal Liaison Officer in the AFRC Government,[631] but said that he was too ill to perform his duties.[632]

321. The office of the Principal Liaison Officer (PLO) was established by the AFRC government on 10 July 1997.[633] According to the Decree establishing the office, the PLOs were responsible for “supervising, monitoring and coordinating the operations of any Department of State or such other business of Government, as may from time to time be assigned to [them].”[634] The Trial Chamber is satisfied that the Accused Brima was assigned to supervise the Ministries of Works and Labour; Customs and Excise, and the parastatals Sierratel and SALPOST.[635]

322. As a PLO 2, the Accused Brima reported to PLO 1, Abu Sankoh, and ultimately to SAJ Musa[636] and the Chairman, Johnny Paul Koroma.[637]

323. Only one witness testified that he saw the Accused in the hospital shortly after the coup. However, he said that the Accused was suffering from malaria and not recovering from a road accident, as the Accused himself claimed. While the witness said that he visited the Accused in the hospital in March and April 1997, he added that the visits took place after the coup.[638] Thus, his testimony on the dates of his visits to the Accused in the hospital is inconsistent.

324. The Accused did not deny that he attended council meetings.[639] Indeed, he testified that he attended many meetings during this period.[640]

325. Thus, the Trial Chamber is satisfied on the Prosecution evidence adduced that while the Accused may have been ill during the AFRC Government period, he did not suffer from any illness that prevented him from performing his duties.

(d) Mining Supervision in Kono and Kenema Districts

326. The Indictment is silent on the role of the Accused in diamond mining activities. In its Pre-Trial Brief however, the Prosecution alleges that the Accused was in charge of diamond mining in Kono District.[641] The Accused concedes that he was in Kono District on several occasions during the Junta period, but states that he was there on personal business.[642]

327. Witness TF1-153 was appointed as a mines monitor by SAJ Musa.[643] He testified that the Accused Brima came to Kono with Sam Bockarie on one occasion to introduce the mines monitors to the community.[644] He added that Brima came to Koidu Town several other times, on one occasion staying for about a week, and that he would report back to SAJ Musa about any difficulties regarding the mines monitors and the mining.[645] While the Brima Defence raised issues with regards to the witness’s credibility and reliability,[646] the Trial Chamber notes that the witness was not shaken on cross-examination on this point.

328. The evidence indicates that Brima did not hold executive powers in this position in Kono District. Witness TF1-153 testified that as a mines monitor he was directly responsible to the Mines Ministry and SAJ Musa as Mines Minister rather than to the Accused Brima.[647] In addition, Resident Minister East, Eddie Kanneh, was heavily involved in diamond mining and had overall control of the diamond mining areas in Kono, Kenema and Kailahun Districts and reported directly to Johnny Paul Koroma.[648] Sam Bockarie was also a major player in diamond mining activities, particularly in eastern Sierra Leone, during the AFRC regime and worked closely with Eddie Kanneh.[649] Thus, the evidence shows that the Accused Brima performed the role of overseer of the mining activities of the AFRC Government and reported directly to SAJ Musa.

329. The Trial Chamber has considered the evidence of witness TF1-045 that he encountered the PLO 2 in Kenema District during the AFRC government period. However, the Trial Chamber notes that the witness said that he knew the Accused Brima well[650] but that he did not know the name of PLO 2.[651] The Trial Chamber therefore concludes that the person that the witness referred to as “PLO 2” was not the Accused Brima and dismisses his testimony on this point.

330. Regarding the whereabouts of the Accused Brima during the AFRC government period, the Trial Chamber is satisfied that Brima was in Freetown on 25 May 1997, and that either he later moved to Kono District or travelled frequently between Kono and Freetown. For example, there is evidence that on 9 December 1997 he attended a meeting in Freetown,[652] but Witness DAB-059 saw Brima in Koidu Town sometime in December 1997.[653] Witness TF1-153 also indicated that Brima’s visits to Kono District were sporadic.[654]

331. The Trial Chamber is satisfied that Brima travelled to Kono on diamond mining business rather than exclusively on personal business. On the evidence it is not possible to establish the frequency or length of time of these visits, although it is clear that he was in Kono when ECOMOG ousted the AFRC government in Freetown.

(e) Findings

332. The Trial Chamber is satisfied that the Accused Brima was a member of the group that organised the 25 May 1997 coup, that he was a member of the AFRC Supreme Council, and that he was an “Honourable.” It is further satisfied that he was Principal Liaison Officer 2 in the AFRC government and was responsible for overseeing mining activities and reporting to SAJ Musa, the Mines Minister, in Freetown.

5. Brima’s Alleged Arrest in Kono and Kailahun Districts (February – May 1998)

333. The Prosecution alleges that “[b]etween mid February 1998 and about 30 April 1998, Alex Tamba Brima was in direct command of AFRC/RUF forces in the Kono District”.[655] In its Pre-Trial Brief, the Prosecution further alleges that the Accused was liable for crimes committed during this period by virtue of his position as “the SLA in charge of Kono post ECOMOG intervention within the AFRC/RUF collaboration”.[656]

334. In its Final Brief, the Prosecution concedes that for a short period of time in either Kailahun or Buedu the Accused Brima may have been under house arrest but argues that this lasted no more than a week, after which he was able to move around Kailahun freely and even visited and ate with Sam Bockarie. The Prosecution argues that around the end of April or beginning of May 1998 the Accused was sent by Sam Bockarie to cement the relationship between the RUF and the AFRC in Kono[657] In its closing arguments, the Prosecution conceded that only the Accused Kamara was present when the crimes were committed in Kono District.[658]

(a) Brima’s Alibi for Kono District

335. In his Pre-Trial Brief, the Accused Brima argued that he was not in charge of the AFRC and RUF troops in Kono between 14 February and 30 June 1998, but on the contrary was in RUF custody in Kailahun from February 1998 until July 1998.[659] At trial, Brima testified that he left Kono for Kailahun at approximately the time of the ECOMOG intervention in Freetown, and that when he arrived in Kailahun District he was forcibly detained by the RUF throughout the Indictment period for Kono. [660] He escaped in July 1998 and made his way back to Kono immediately thereafter.[661]

336. Witness for both the Prosecution and the Defence confirmed that the Accused Brima was detained for an indeterminate period by the RUF in Kailahun in or about February 1998.[662] He was captured in the village of Bendu in Kailahun District by RUF fighters including Prosecution witness TF1-045 and the RUF commander Issa Sesay. They disarmed the Accused, searched him for diamonds and then brought him to the house of Mike Lamin, an RUF commander, in the village of Buedu.[663]

337. During the same period, the RUF commander Sam Bockarie arrested Johnny Paul Koroma in Kailahun District.[664] The Accused Brima testified that he was present when Bockarie issued the order to arrest Koroma, his wife, children and bodyguards, and that he saw Koroma’s bodyguards disarmed but that he did not see what happened to them subsequently.[665]

338. The legal impact of Brima’s detention on his responsibility for crimes committed by his troops in Kono District will be discussed elsewhere in this Judgement.[666]

(b) Return to Kono District

339. The Prosecution argues that the Accused Brima was released from detention in Kailahun and returned to Kono by late April or early May 1998.[667] The Prosecution contends that any disagreement between the Accused and the RUF faction under Sam Bockarie only lasted a few days, after which the Accused was “back on good terms with Sam Bockarie and other RUF commanders in Kailahun.”[668]

340. The Accused Brima maintains his alibi for this period, specifically testifying that he did not return to Kono District until 17 July 1998.[669]

341. Prosecution witnesses put the Accused Brima in Kono District in late April and early May 1998.[670] Witnesses for the Defence confirmed that the Accused was detained and mistreated in Kailahun but could not say for how long he was detained.[671]

(c) Findings

342. The Trial Chamber is satisfied that in February 1998, the Accused Brima was detained for an indeterminate period by the RUF in Kailahun District.[672] In late April or early May 1998, he travelled from Kailahun to Kono District.[673] Upon arrival Brima took overall command of the AFRC troops based in Kono District [674] Brima’s arrival in Kono District marked the departure of the ex-SLAs from Kono District towards Mansofinia in Koinadugu District.[675]

343. The Prosecution evidence adduced relates entirely to crimes committed in Kono District prior to the Accused Brima’s return. There is no evidence that he supported or assisted the AFRC and/or RUF troops operating in Kono District during his stay in Kailahun District.

6. Brima’s Alleged Arrest in Koinadugu and Bombali Districts (February – November 1998)

344. The Indictment states that the Accused Brima “was in direct command of AFRC/RUF forces which conducted armed operations throughout the north eastern and central areas of the Republic of Sierra Leone, including but not limited to, attacks on civilians in Bombali District between about May 1998 and 31 July 1998.”[676]

345. In its Final Brief, the Prosecution submits that the Accused Brima maintained his position as overall commander of the AFRC soldiers that arrived in Koinadugu District in late April or early May 1998 as this group moved through Koinadugu and Bombali Districts.[677]

(a) Brima’s Alibi for Koinadugu and Bombali Districts

346. The Brima Defence introduced an alibi covering the period between May 1998 and around November 1998 when the AFRC troops were in Koinadugu and Bombali Districts.[678] The Accused testified that following his release from RUF detention in Kailahun, he spent a short time in Koidu Town before moving on to his family’s village of Yarya in Kono District, where he went into hiding from July until September 1998.[679]

347. The Accused further testified that in September 1998 approximately 110 men in uniforms carrying weapons and led by AFRC commander ‘0-Five’ came to Yarya and arrested him. According to the Accused, he was told that SAJ Musa had ordered the arrest of all ‘Honourables’ and said that the AFRC was extinct but that the Sierra Leone Army remained. The Accused further testified that following his arrest ‘O-Five’ established radio contact with Musa, who was in Koinadugu District, and Musa instructed ‘O-Five’ to take the Accused with him to ‘Colonel Eddie Town’.[680]

348. The Accused Brima testified that Witness DBK-012 was one of the guards who arrested him in his family’s home town of Yarya in Kono District. Witness DBK-012 testified that he was a member of a group of AFRC soldiers who travelled from Koinadugu District to ‘Colonel Eddie Town.’[681] However, this witness did not state that he arrested Brima in Kono District. Instead, he testified that when he reached ‘Colonel Eddie Town’ he was informed that the Accused Brima was in detention, and that he had been arrested by other renegade soldiers.[682]

349. The Defence called three other witnesses to testify regarding the alleged arrest of the Accused, but their evidence was inconsistent. Witness DAB-109 testified that the Accused Brima was in Yarya during the rainy season of 1998 and that he was arrested by a group of men. However, the witness testified that the Accused Brima was arrested in June or July of 1998, not in September as claimed by the Accused. In addition, the witness said that the Accused was arrested by four men, two wearing combat clothing and two wearing civilian clothes, and not by scores of soldiers as claimed by the Accused. Finally, the witness testified that he did not see any weapons on these men.[683]

350. Witness DAB-111 testified that there were two men named ‘Tamba Brima’ in Yarya. One was the Accused and the second was the elder brother of the Accused.[684] One day during the rainy season in 1998,[685] the witness was in Yarya with a third brother of the Accused named Komba when a group of soldiers wearing headbands attacked the town and demanded that the civilians hand over their money. The soldiers approached Komba Brima and ordered him to tell them the whereabouts of his elder brother. A soldier named ‘Junior’ then shot Komba in the knee.[686] Soon after this incident, the witness saw the Accused arrive in a vehicle looking for his brother Komba.[687] The witness did not see the Accused again, but he later heard that the Accused had been arrested. He could not say precisely when the Accused was arrested, but said it was “some months” after his arrival in Yarya.[688]

351. The Trial Chamber notes that both Defence witnesses DAB-109 and DAB-111 testified that the brother of the Accused, Komba Brima, was shot by a man named ‘Junior’. This was corroborated by Prosecution witness TF1-334 who testified that Komba Brima was shot by Prosecution witness George Johnson aka ‘Junior Lion’.[689] The Defence argued that George Johnson bore ill will towards the Accused on account of this incident and his evidence is therefore unreliable.[690] The Trial Chamber, however, is of the view that if Johnson did indeed shoot Komba Brima, that is reason for the Accused to bear ill will towards George Johnson but no self-evident rationale for Johnson to do so towards the Accused.

352. Witness DAB-159 testified that she was raped and abducted by witness George Johnson in Kono District and taken to Koinadugu District.[691] She left Koinadugu with a group of soldiers who were travelling to join the advance team. That group included commanders named ‘O-Five’ and ‘Kehforkeh.’[692] The group left from Kurubonla and passed through Mansofinia in Koinadugu District and Yarya in Kono District. When they arrived in Yarya, the soldiers preceded the civilians. The soldiers told the women, including the witness, that they had gone to a farm in Yarya and arrested a soldier. Although the witness did not see the detained soldier, she was told that his name was Tamba Brima.[693]

353. While the discrepancies between the accounts of events in Yarya as described by the Accused and Witnesses DAB-109 and DAB-110 are not significant enough on their own to discredit the alibi of the Accused, witnesses placed the Accused Brima in Koinadugu and Bombali Districts between late April/early May 1998 and July to September 1998, asserting that he was the commander of an advance team sent by SAJ Musa to set up a base camp in Bombali District.[694]

(b) Command of the Advance Troops from Mansofinia to Rosos

354. The Prosecution submits that the Accused was the overall commander of the advance team of AFRC troops that travelled from Mansofinia in Koinadugu District to Rosos in Bombali District.[695] The Defence position is that other known individuals, specifically, FAT Sesay, Colonel Eddie, and others, were the Commanders of this advance team. [696]

355. Before reaching its conclusions, the Trial Chamber will consider the credibility of the following key witnesses.

(i) The Credibility of Witnesses

a. Prosecution Witnesses

356. Several prosecution witnesses provided varying amounts of detail regarding the journey of the advance team from Mansofinia in Koinadugu District to Camp Rosos in Bombali District.

  1. TF1-334

357. The Brima Defence submits that Prosecution witness TF1-334 was not in a sufficiently high position within the AFRC structure to have access to the types of details he described in his evidence.[697] The Defence argues that the witness was not credible because he derived benefits from testifying.[698]

358. The witness revealed that he sought and received an assurance from the Office of the Prosecutor that he would not be prosecuted for any crimes he had committed.[699] The witness explained in detail that he was privy to substantially more information than his rank would suggest because his superior, a high ranking renegade soldier, was illiterate and relied on the witness to read and understand all relevant documentation.[700] The Trial Chamber notes that the Defence did not raise this issue in its cross-examination of the witness.

359. The Trial Chamber observes that witness TF1-334 spent 16 days on the stand, including five days of cross-examination in which his testimony in chief was not shaken. The witness provided a substantial amount of detail corroborated by other witnesses as well as plausible explanations for his knowledge of such information. The Trial Chamber finds that his evidence throughout was consistent and any discrepancies minor. In addition, the witness presented a truthful demeanor. Thus, the Trial Chamber finds that he was a credible and reliable witness.

360. Witness TF1-334 testified that the Accused Brima was the overall commander of the AFRC advance team that moved from Mansofinia to Camp Rosos.[701]

  1. TF1-184

361. The Brima Defence submits that the Witness TF1-184 is unreliable because there were significant discrepancies between his evidence at trial and the evidence he provided to the Prosecution in a prior statement, and because “he harbour[ed] a deep dislike for the 1st Accused which is manifested by his belief that the 1st Accused was responsible for the death of SAJ Musa.”[702]

362. The Trial Chamber notes that Prosecution witness TF1-184 was one of SAJ Musa’s closest associates and that he believed that the Accused Brima deliberately killed SAJ Musa at Benguema because he wanted to regain command over the AFRC troops. [703] The witness further believed that Brima, unlike Musa, was not loyal to the Army.[704] However, numerous witnesses testified that Musa’s death was an accident.[705] It is the view of the Trial Chamber that although the evidence in chief of the witness was unclear at times, in its cross-examination of the witness the Defence raised no significant inconsistencies between his evidence in chief and his prior statement to the Prosecution. In addition, the Trial Chamber finds that the witness was not shaken on cross-examination and was generally corroborated by other witnesses.

363. Witness TF1-184 testified that the Accused Brima was the “senior man” of the team that SAJ Musa sent to establish a base camp in Bombali District. He added that ‘Bazzy’ and ‘Five-Five’ went with him but did not specify their positions.[706]

  1. TF1-033

364. The Brima Defence argues that the evidence given by Witness TF1-033 “was full of exaggerated accounts,” that his evidence was never corroborated by other witnesses and that there were significant discrepancies between his evidence at trial and the evidence he provided to the Prosecution in a prior statement.[707]

365. The Trial Chamber observes that there were occasional significant discrepancies between the evidence witness TF1-033 gave at trial and his prior statements to the Prosecution. For example, the witness testified at trial that he was abducted by the Accused Brima in Kono District following the fall of the AFRC Government. In a prior statement to the Prosecution, however, the witness said that he was concerned for his safety during the ECOMOG recapture of Freetown in February 1998 and decided to flee with the AFRC troops departing Freetown.[708] The witness also testified at trial that the Accused Brima ordered a massacre at Tombodu in Kono District at a time when all other witnesses put the Accused elsewhere. More significantly, in a prior statement to the Prosecution, the witness said that a former soldier named “Savage” ordered the massacre. When asked by the Prosecution investigator whether “Savage” was the “sole operator” of events at Tombodu and whether he answered to any other commander, Witness TF1-033 said that “Savage” was in charge of Tombodu and that he did not answer to anyone.[709] The Trial Chamber also notes that Prosecution witnesses TF1-334 and George Johnson gave accounts of events at Tombodu, which differed substantially from the account provided by witness TF1-033.[710]

366. The evidence of the witness regarding the troop restructure at Mansofinia suffered from the deficiencies typical in his testimony: it was overly general in comparison to the testimony of other witnesses present at the same events, but became specific when the presence or actions of one of the Accused were concerned. The Trial Chamber is satisfied, however, that while the witness appears on occasion to have exaggerated figures and was unclear on dates, he did not fabricate events. The Trial Chamber further found the witness truthful at trial, and is unwilling to conclude that his evidence overall is not credible or reliable.

367. Witness TF1-033 travelled with the renegade soldiers as they moved from Kono District to Koinadugu and on to Camp Rosos.[711] The witness described the Accused Brima during this period saying “he was always at the helm of our affairs when he says ‘move’ everybody is on his toes.”[712]

  1. TF1-153

368. The Brima Defence submits that witness TF1-153 was not credible or reliable, arguing that there were significant discrepancies between his evidence at trial and the evidence he provided to the Prosecution in a prior statement.[713] Although the witness was not entirely clear in his examination in chief, the Trial Chamber finds that inconsistencies between the evidence he gave at trial and his prior statement to the Prosecution were not of sufficient gravity to cast doubt as to his credibility.

369. Witness TF1-153, another soldier close to SAJ Musa, was not present during the journey from Mansofinia to Rosos.[714] The witness testified that Musa told him that he had instructed the Accused Brima and Kamara to find a base camp between Makeni and Port Loko[715] and that he had sent the Accused Kanu along to support them.[716] Musa referred to the Accused Brima as the commander of this advance team.[717]

  1. George Johnson

370. The Trial Chamber has considered the objections raised by the Defence on the credibility and reliability of George Johnson.[718] The Trial Chamber observes that the witness provided consistent and detailed evidence during his examination in chief and that he was not shaken on cross-examination. The Trial Chamber further found that his overall demeanor on the stand indicated candour. Thus, it concludes that the witness was generally credible and reliable.

371. George Johnson was present throughout the journey from Mansofinia to Rosos and he described the Accused Brima as overall commander of the advance team.[719]

b. Defence Witnesses

372. DBK-131,[720] DAB-012, [721] DAB-033,[722] DAB-095[723] and DAB-156[724] all testified that the top commanders leading the advance team were FAT Sesay, ‘Major Eddie’, George Johnson and/or ‘O-Five’ and ‘Captain King’. However, none of these witnesses were part of the advance group and thus their evidence on the command structure during this period constitutes hearsay.

373. Two Defence witnesses - DBK-113 and DBK-037 - were present during the journey from Mansofinia to ‘Colonel Eddie Town’.

374. Witnesses DBK-113 testified that FAT Sesay was the senior AFRC soldier at Mansofinia and that he was the overall commander of the AFRC troops during the journey to Rosos.[725] At Rosos, FAT remained the overall commander and Col. Eddie was his Deputy.[726] However, the witness said that the troops were split up into several groups. The first group, the ‘fighting force’, was followed by a second group of persons carrying supplies. The witness was part of a third group that was made up of civilians and followed the ‘fighting force’ at a distance. Thus, by the time his group reached villages the population had already fled, meaning that any crimes would have been committed by the first or second groups.[727]

375. In addition, the evidence of witness DBK-113 regarding the journey is much less detailed than that of Prosecution witnesses TF1-334 and George Johnson. The Trial Chamber also has concerns about the witness’s credibility because he testified that no child soldiers were abducted between Mansofinia and Rosos, that he did not see child soldiers at Rosos[728] and that he did not hear of rapes or ‘bush wives.’[729] The Trial Chamber observes that both Prosecution and Defence witnesses described crimes committed by troops as they advanced from Mansofinia to Rosos. Thus, the Trial Chamber concludes that Witness DBK-113’s testimony on the command structure of the advance team is unreliable.

376. Defence witness DBK-037 also testified that the overall commander of the advance team was FAT Sesay. Sesay was deputised by ‘Col. Eddie’, a man named ‘King’, and Prosecution witness George Johnson.[730] Although the witness was a member of the advance team, apart from providing this information about the command structure and insisting that the Accused Kamara was not present at Camp Rosos, he provided very little detail about the journey from Mansofinia to ‘Colonel Eddie Town’.[731] The witness also testified that he saw no children or civilians at Camp Rosos,[732] although on cross-examination he stated that he saw the children of the fighting forces there.[733] The Trial Chamber therefore concludes that the evidence of witness DBK-037 with regard to the command structure of the advance team is unreliable.

377. The parties have submitted conflicting evidence on the command structure of the advance team, an issue fundamental to both the Prosecution and Defence cases. The Trial Chamber finds the evidence of the Prosecution witnesses who placed the Accused in Koinadugu and Bombali Districts during the relevant Indictment period significantly more reliable, consistent and compelling, and thus more persuasive, than that of the Defence witnesses.

(c) Findings

378. The Trial Chamber finds that the Prosecution has proven beyond reasonable doubt its case that the Accused Brima was overall commander of the AFRC advance team that travelled from Mansofinia in Koinadugu District to Camp Rosos in Bombali District.

379. The Trial Chamber is satisfied that upon arrival in Koinadugu District, a number of AFRC commanders including the Accused Brima and Kamara went to meet with SAJ Musa,[734] who had remained in Koinadugu District in the period following the February 1998 intervention. While the witnesses are inconsistent regarding the precise location of the meeting,[735] all agree that it was decided at the meeting that Brima would lead an advance team north east to establish an AFRC base in Bombali District and that SAJ Musa and his troops would follow later.[736] Musa informed Brima that Kanu would accompany the advance team.[737] Numerous witnesses, both for the Prosecution and for the Defence, testified that SAJ Musa’s stated purpose in regrouping his forces and planning a new attack on Freetown was to reinstate the Army which had been reorganised by President Kabbah.[738]

380. Following this meeting, the Accused Brima called a muster parade at which he reorganised the troops and promoted individual officers.[739] The promotions were based on the ability of the commanders to control their men.[740] Brima promoted himself and the Accused Kamara to the rank of Brigadier.[741] He also appointed the Accused Kanu as Chief of Staff, and promoted him to the rank of Colonel.[742] The Accused Kamara remained Brima’s second in command.[743]

381. Approximately three days after the meeting with Musa, Brima and the troops under his command left Mansofinia and headed south back into Kono District before heading north-west towards a region in Bombali district bordering Port Loko and Kambia districts.[744] In Kono District, the troops passed through Tombodu, Peyama, Kayima, Kondea, Worodu and Yarya. From Yarya, the ‘hometown’ of Brima, the troops went back into Koinadugu District to Yifin and from there moved eastwards, passing Kumala and Bendugu towards the area near Bumbuna (Tonkolili district). The troops then headed further north east into Bombali district, passing through Kamagbengbeh,[745] Bornoya, Karina, Pendembu[746] and Mateboi before arriving at Rosos.[747]

382. The evidence suggests that a second group of AFRC troops, led by a commander named ‘O-Five,’ followed a route similar to the one taken by the Accused Brima’s group when it came to reinforce the advance team in July or August 1998.[748] In its factual findings on the crimes committed in Bombali District, the Trial Chamber has made findings only on crimes clearly associated with the advance team led by Brima.

383. While SAJ Musa appears to have been the overall strategist for the AFRC, once Brima left Mansofinia he had no contact with Musa until he reached Camp Rosos and even then communication was cursory.[749] Thus, the Trial Chamber concludes that the Accused Brima was not subject to higher level supervision or command during this period.

384. The Trial Chamber concludes that the AFRC arrived in Camp Rosos in or about July 1998. Following ECOMOG attacks on Camp Rosos in or about September 1998, the troops moved to another base at the village of Gberematmatank, more commonly referred to as ‘Colonel Eddie Town,’ located either in Bombali or Port Loko Districts.[750]

(d) Brima’s Alleged Detention at ‘Colonel Eddie Town’

385. The joint Defence case is that the three Accused remained under arrest at ‘Colonel Eddie Town’ until the Accused Brima and Kanu escaped at Goba Water, immediately after SAJ Musa’s death at Benguema.[751]

386. The Prosecution submission is that the three Accused maintained their positions during their time at ‘Colonel Eddie Town’ and that they were never under arrest there. The Prosecution argues in the alternative that if the Accused were under arrest, it was only for a very short period after the arrival of the AFRC commander ‘O-Five’ and they were released prior to the arrival of SAJ Musa at ‘Colonel Eddie Town’.[752]

387. While a number of Defence witnesses testified that the Accused were under arrest in ‘Colonel Eddie Town’,[753] these witnesses gave substantially different accounts, thereby casting doubt on their credibility and reliability.[754]

388. Prosecution witness George Johnson testified that on an indeterminate date, a group of AFRC soldiers led by ‘O-Five’ arrived at ‘Colonel Eddie Town’ and ordered the arrest of the three Accused. The witness was among those charged with implementing the order. SAJ Musa arrived subsequently and became the overall commander of the AFRC troops, followed by ‘O-Five’ and ‘Junior Mavin’.[755] Johnson further testified that in Newton, on the outskirts of Freetown, SAJ Musa held a meeting in which he reinstated “the honourables Alex Tamba Brima, Ibrahim Bazzy Kamara [and] Santigie Kanu.”[756] The Trial Chamber is satisfied that the witness’s account of events is reliable.

(e) Advance on Freetown

389. From Colonel Eddie Town, the AFRC forces moved towards Freetown, passing through Mange, Lunsar, Sumbuya and Masiaka in Port Loko District and then Newton and Benguema in the Western Area.[757]

390. On 23 December 1998, the troops attacked a weapons depot in Benguema. SAJ Musa was killed when a bomb exploded during this operation.[758]

391. The Prosecution submits that following the death of SAJ Musa, the Accused Brima re-established his position as overall commander of the AFRC troops.[759]

392. Brima testified that following Musa’s death at Benguema, ‘O-Five’ ordered him and others to go to a village named Goba Water. According to Brima, he and the Accused Kanu managed to escape from Goba Water and they moved towards Makeni, where they arrived in January 1999[760] and stayed with Brima’s family.[761] Therefore, the Accused Brima and Kanu were not in Freetown during the January 1999 invasion.

7. Brima’s Role in Freetown and the Western Area (January 1999 – February 1999)

393. The Prosecution submits that the three Accused were the senior commanders of the 6 January 1999 invasion of Freetown. The Accused Brima was the overall commander; the Accused Brima his Deputy; and the Accused Kanu was third in command.[762]

394. The position of the Defence is two-fold: first, that the Accused was not present during the January 1999 invasion of Freetown,[763] and second, that the AFRC troops were led by other known individuals, specifically FAT Sesay,[764] George Johnson also known as ‘Junior Lion’,[765] or ‘O-Five’.[766]

395. In addition to the concerns regarding the credibility of Prosecution witnesses discussed above, the Brima Defence submits that Prosecution witness Gibril Massaquoi “painted a false picture” of events “designed to blame others and exonerate himself.”[767]

(a) Prosecution Witnesses

396. Prosecution witness TF1-334 testified that despite rumours among the troops that the Accused Brima had killed SAJ Musa, Brima became overall commander following Musa’s death and began to organise the movement of the troops around the region.[768] On Christmas Day, Brima called his commanders and told them that a woman had had a dream that SAJ Musa was crying in his grave and urging the troops to continue on towards Freetown. He took the opportunity to remind the renegade soldiers that he was now overall commander and promoted himself to the rank of Lieutenant General.[769] He then restructured the troops.[770] The witness estimated the troop strength to be about 1500 men.[771]

397. George Johnson testified that following the death of SAJ Musa, there was a short power struggle between the Accused Brima and the Accused Kamara, but this was quickly resolved in favour of the Accused Brima, who became overall commander of the troops.[772] The witness corroborated the evidence of witness TF1-334 that Brima restructured the troops. The witness was promoted from the rank of Major to the rank of Lieutenant Colonel.[773]

398. According to witness TF1-334, on 5 January 1999 the Accused Brima gathered the troops in Allen Town and told them the time had come to attack Freetown.[774] At this meeting he further instructed his troops to capture State House, burn police stations, release the prisoners held at Pademba road prison and execute ‘collaborators,’ meaning anyone who did not support the troops. He further informed his troops that as he did not have the wherewithal to pay them, they were free to loot from the civilian population although he expected his troops to hand any ‘government property’, meaning diamonds or dollars, to the Brigade.[775]

399. George Johnson corroborated the evidence that the Accused Brima chaired a meeting prior to the attack on Freetown at which he announced the attack and instructed that certain crimes be committed.[776] While George Johnson testified that this meeting took place at Orugu village rather than Allen Town, the Trial Chamber is satisfied that both witnesses were referring to the same meeting as very little distance separates the two locations.

400. According to Witness TF1-334, State House, the seat of the government, was captured by AFRC troops on 6 January 1999 at 6 a.m and the three Accused arrived there approximately half an hour later.[777] The witness alleged that throughout the time that the AFRC headquarters were at State House, the Accused Brima committed and ordered the commission of crimes, and that his orders were implemented.[778]

401. George Johnson corroborated evidence that crimes were committed by the troops at State House and that the Accused Brima ordered the release of prisoners held at Pademba Road prison.[779] Johnson provided a great deal of detail about troop movements around the city during the invasion.[780] He also corroborated the evidence of the witness TF1-334 that the Accused Brima was the overall commander of the troops, and that as Commander he communicated on at least one occasion with Sam Bockarie[781] while he was at State House. The witness also detailed the commission of crimes by troops associated with the Accused.[782] While there were discrepancies between this witness’s evidence and that of witness TF1-334 regarding the commission of these crimes, most were minor.

402. Witness TF1-153 also testified that the Accused Brima became overall commander of the troops at Benguma following the death of SAJ Musa.[783] The witness confirmed that Brima met with the troops at Orugu village before the final onslaught on Freetown and that he ordered the release of the prisoners at Pademba Road prison.[784] The witness also testified about the commission of crimes by AFRC troops during this period.[785]

403. Witnesses TF1-184 and TF1-033 also gave evidence that the Accused Brima became Commander in Chief of the AFRC forces following the death of SAJ Musa[786] and described the commission of crimes by AFRC troops in Freetown.[787]

404. Prosecution Witness Gibril Massaquoi was incarcerated at Pademba Road Prison from 17 October 1997 until 6 January 1999.[788] Upon his release, he was informed that the Accused Brima had led the troops into Freetown.[789] He then saw the three Accused at State House.[790] The witness participated in a meeting at State House, attended by the Accused, at which he learned that the Accused Brima was the Commander in Chief of the troops, the Accused Kanu was the army chief of staff and the Accused Kamara was thecommander in charge of the men and all their weapons.”[791] The witness corroborated evidence that while at State House the Accused Brima on at least one occasion spoke to Sam Bockarie. Indeed, on this occasion Brima asked the witness to plead with Bockarie to send reinforcements to assist the renegade soldiers.[792] The witness also corroborated evidence on the commission of crimes in the Freetown area by AFRC troops.[793]

405. The Trial Chamber takes into account that the witness was a high-ranking member of the RUF who may have participated in the commission of crimes during Sierra Leone’s civil war.[794] The Trial Chamber further observes that the witness obfuscated on cross-examination in response to questions about Prosecution promises of immunity in return for the witness’ testimony in proceedings.[795] Morever, the witness testified that he blamed the AFRC Government for his 14 month imprisonment.[796] However, there is no evidence that the witness held a particular animus against the Accused in this case. The Trial Chamber has no doubt that the witness was released from Pademba Road prison on 6 January 1999 and was thereafter in a position to observe events.

(b) Defence Witnesses

406. Witness DAB-095 testified that he did not see the three Accused after the troops left Waterloo, in the weeks prior to the Freetown invasion.[797] However, the Trial Chamber observes that this witness said he was injured on 24 December 1998 and that he was taken to Makeni for medical treatment. He was therefore not present during the invasion of Freetown.[798]
407. Witness DAB-156 testified that she was present during the advance to Freetown and throughout the invasion and that she did not see the Accused after the troops left Waterloo in late Dember 1998 or early January 1999.[799] On examination in chief, the witness appeared to testify that ‘Junior Lion,’ ‘King’, and ‘O-Five’ were the commanders of the troops leading the Freetown invasion, although her evidence was not clear.[800] In cross-examination, she clearly stated that it was ‘O-Five’ and ‘Eddie.’[801] The Trial Chamber notes that the witness did not provide a great deal of detail about her journey from Koinadugu District to Freetown, but that she was not shaken on cross-examination.


 

408. Witnesses DBK-113, DBK-037, DBK-113, DAB-095, DAB-033, DBK-005 testified that they did not see any of the three Accused at State House or during the invasion of Freetown.[802] The Trial Chamber will briefly consider the evidence of each of these witnesses on the command structure in Freetown.

409. Witness DBK-113 testified that the commanders in the attack on Freetown were Col. FAT, Junior Lion, Col. Tito, Col. Eddie, Colonel Foday Bah, Colonel Sesay, “Changa Bulunga” and “many more”.[803] He does not refer to any discussion among the troops regarding who took over command after SAJ Musa’s death.[804] Under cross-examination, the witness stated that Colonel FAT was the overall commander and his deputy was Colonel Eddie. The witness testified that he knew this because “during my stay at State House, Colonel FAT was usually at the place, in order to organise soldiers, to put them in the truck, to send them to the various areas where the ECOMOGs used to attack.”[805] He knew that Colonel Eddie was the deputy because he was close to Colonel FAT and “whenever he would pass an order for something to be done, to take soldiers to the front, to take up responsibilities, it was Colonel Eddie he would pass it on to. Then he would tell the junior soldiers.”[806] The Trial Chamber notes that in a combat situation, any number of commanders may be observed giving orders. The Trial Chamber thus finds these observations vague and insufficient per se to substantiate the witness’ conclusion.

410. The Trial Chamber is of the view that the same comment is applicable to the testimony of Witness DBK-005, who testified that he went to State House and that he knew ‘FAT’ was the commander since he saw other men showing him respect and he saw ‘FAT’ give instructions to ‘Junior Lion’.[807] He also testified that ‘Junior Lion’ gave orders during the retreat, although FAT Sesay was there, and then stated that at Benguema he didn’t really know who was in charge because he was concentrating on escaping to Makeni.[808]

411. Witnesses DBK-037 testified that FAT Sesay was made commander of the troops following the death of SAJ Musa and that he was the commander at State House, although ‘O-Five’ led the troops into Freetown.[809] ‘Eddie’ was the adjutant and ‘O-Five’ was the operations commander, while ‘Junior Lion’ was MP commander.[810] Witness DBK-037 testified that FAT Sesay’s military rank was lieutenant.[811]

412. Witness DAB-095, who claimed to be ‘FAT’s security, testified that at Eddie Town ‘FAT’ was a colonel.[812] The witness testified that ‘Colonel Eddie’ was the ‘main commander’ in Freetown, although the witness subsequently stated that ‘Colonel Eddie’ and FAT Sesay were both commanders in Freetown.[813] He explained that positions would change and admitted that he was not very ‘au fait’ with the details of the positions.[814] The Trial Chamber notes that this witness also asserted that he was one of ‘JPK’s securities, but stated that ‘JPK’s full name was John Patrick Koroma rather than Johnny Paul Koroma.[815] He also did not know that the Accused were members of the AFRC.[816]

413. Witness DAB-033’s testimony regarding the troop structure was clearer. He testified that following SAJ Musa’s death at Benguema, there was a ‘shake in the command’. FAT Sesay took command, but ‘Junior Lion’ initially refused to be subordinate to him.[817] FAT Sesay was ultimately the overall commander to Freetown.[818] The Trial Chamber notes that at trial the witness stated four times that he did not see the three Accused after the death of SAJ Musa,[819] but agreed that in a prior statement that he saw the three Accused in Makeni after the retreat was correct.[820]

414. Witness DBK-012 testified that after SAJ Musa’s death, ‘FAT’ became the overall commander. ‘Eddie’ was second in command and adjutant, while ‘King’ was third in command and MP. ‘Junior Lion’ was fourth in command and task force commander.

415. Witness DAB-023 testified that ‘O-Five” became overall commander of the troops in the wake of SAJ Musa’s death at Benguema.[821] The witness said that he heard ‘O-Five’ order the attack on Freetown[822] but that immediately after arriving in Freetown ‘O-Five’ sent him to the hospital for treatment of a wound. He spent four or five days in the hospital before joining the troops at State House.[823] The witness said that he did not see the three Accused after the troops passed through Masiaka on the way to Freetown.[824]

416. According to Witness DBK-131, FAT Sesay became overall commander of the troops following the death of SAJ Musa at Benguema. ‘Eddie’ was second in command followed by ‘O-Five,’ ‘Junior Lion,’ and ‘Tito’ in descending order. [825] The witness added that FAT led the troops to State House and then made an announcement over the radio informing the population that his troops had taken Freetown. The witness was with the troops during the week they occupied State House and then retreated to Kissy.[826] The Witness added that he did not see the Accused after the troops left Waterloo meaning that he did not see them during the Freetown invasion or at State House.[827]

417. Witnesses DBK-037, DBK-113, DSK-113, DAB-033, DBK-005, DBK-126 and DAB-023 testified that they did not see or hear of any civilians being killed, civilians having their limbs amputated, houses being burned or civilians being raped in Freetown.[828] Witness DBK-012 made similar statements, testifying that he did not see or hear of rapes at State House or burning of houses during the retreat.[829] Witness DBK-037 and DAB-033 stated that AFRC soldiers always aimed for military targets and did not attack civilians.[830]


 

418. The Trial Chamber has found that extensive evidence proves beyond reasonable doubt that the violence inflicted on civilians and that the destruction of civilian property in Freetown in January 1999 was extreme.[831] The Trial Chamber is of the view that this overwhelming evidence cannot be reconciled with the Defence evidence to the contrary.

419. Witnesses DBK-005, DBK-012 and DBK-131 testified that the crimes committed in Freetown were committed by disgruntled prisoners released from Pademba Road prison on the morning of 6 January 1999, rather than the troops that invaded the city.[832] The Trial Chamber accepts that it is plausible that some of the released prisoners were responsible for some of the damage to Freetown and its inhabitants. However, the Trial Chamber also regards this evidence as one factor which undermines the credibility of these witnesses. It emerged in cross examination that none of these witnesses had mentioned this explanation to the investigators taking their prior written statements. Witness DBK-012 explained that this was because the investigator didn’t ask about it. Witness DBK-005 asserted that he had told investigators. Witness DBK-131 explained that it was because if he recounted every aspect of his war experience to investigators, the interview would have taken one to two months.[833] The Trial Chamber is not satisfied with these explanations.

(c) Findings


 

420. The Trial Chamber is satisfied that following the death of SAJ Musa in Benguema the Accused Brima became the overall commander of the troops that invaded Freetown in January 1999. He remained in this position throughout the invasion and retreat from Freetown. Both Witness TF1-334 and George Johnson described the subsequent movement of the troops towards State House on 6 January 1999, as a steady, organised advance pursuant to the orders of the Accused Brima. [834] Although the climate became increasingly chaotic once the troops lost State House, the evidence is consistent that the Accused Brima remained the overall commander of the retreating forces.


 

421. Following the retreat from Freetown, the Accused Brima took part in a second attack on Freetown with the participation of RUF commanders.[835] This operation was unsuccessful. The Accused Brima and his troops then retreated to Newton and Benguema in the Western Area.[836]


 

8. Brima’s Role in Port Loko District (February 1999 – July 1999)

422. The Trial Chamber notes that in its closing arguments the Prosecution conceded that “both Brima and Kanu were absent [from Port Loko District]” when crimes were committed there.[837]

423. The Accused Brima testified that he escaped from the troops before the invasion of Freetown and made his way to Makeni in Bombali District where he remained with his family.[838]

(a) Findings

424. On the basis of the evidence of Prosecution witnesses TF1-334,[839] George Johnson,[840] Gibril Massaquoi[841] and TF1-153[842] regarding the movement of AFRC troops after leaving Freetown, the Trial Chamber is satisfied that the three Accused retreated from Freetown to Newton and Benguema in the Western Area in late January 1999. The Trial Chamber is further satisfied that in approximately early April 1999, the AFRC troop separated into two groups, with the Accused Brima and Kanu moving with some fighters to Makeni in Bombali District. Insufficient evidence has been adduced for any findings to be made on the Accused Brima’s activities in this period.


 

C. Ibrahim Bazzy Kamara

1. Allegations and Submissions

425. The Indictment alleges that “at all times relevant to the Indictment” the Accused Kamara was a “senior member of the AFRC, Junta and AFRC/RUF forces..”,[843] and that he was a “Public [sic] Liaison Officer (PLO)”[844] and a member of the “Junta governing body.”[845] It further charges that the Accused Kamara was a “commander of AFRC/RUF based in Kono District,”[846] “a commander of AFRC/RUF forces which conducted armed operations throughout the north, eastern and central areas of the Republic of Sierra Leone, including, but not limited to attacks on civilians in Koinadugu and Bombali Districts between about mid February 1998 and 31 December 1998”[847] and “a commander of AFRC/RUF forces which attacked Freetown on 6 January 1999.”[848]

426. In its Pre-Trial Brief, the Kamara Defence submitted that the Accused Kamara was a junior officer on duty, and that “his duties were [...] predominantly confined to the task of receiving and executing orders from his immediate superiors in line with military discipline, not otherwise as claimed by the Prosecution.[849] In its Final Brief, the Kamara Defence submits that the Accused Kamara played ‘no active part in combat’ during the AFRC government period.[850] It further argues that although it has not presented a defence of alibi, witnesses testified that the Accused was in his village in Port Loko during the period that Prosecution witnesses alleged he was in other areas,[851] and that he was under arrest in ‘Colonel Eddie Town.’[852] It also contends that the Accused Kamara was not present at the ‘Westside’ in Port Loko District, and that the Commander in charge there was Prosecution Witness George Johnson.[853] Finally, the Defence asserts that the main Prosecution witnesses were neither credible nor reliable,[854] and refers to the numerous witnesses who supported the alibi of the Accused Brima thereby challenging the credibility of prosecution witnesses.[855]

2. Personal Background of Kamara

427. Ibrahim ‘Bazzy’ Kamara was born on 7 May 1968[856] or 1970.[857] He joined the Sierra Leone Army in 1991 and was deployed at Daru Military Barracks in Kailahun District. At the time of the coup in May 1997 he had attained the rank of Sergeant.[858] He is married and has two children.[859]

428. Although the Accused Brima denied that the Accused Kamara was also known as “Bazzy,” the Kamara Defence does not deny that ‘Bazzy’ was the nickname of the Accused.[860] Both Prosecution[861]and Defence witnesses[862] referred to him by this name. The Accused Kamara was also known as ‘IB’[863] and his radio call sign was ‘Dark Angel’.[864]

3. Positions of Responsibility in the AFRC Government (25 May 1997 – 14 February 1998)

429. The Indictment states that the Accused Kamara was a senior member of the AFRC Government, a member of the “Junta governing body” and a PLO in that Government.[865]

430. In its Final Brief, the Prosecution argues that the Accused Kamara was superseded in the AFRC hierarchy only by Johnny Paul Koroma, SAJ Musa, the PLO 1 and the Accused Brima (PLO 2). The Prosecution also notes that he had “numerous” ministries under his control and that he attended meetings of the Supreme Council.[866]

431. In its Final Brief, the Kamara Defence argues that the Prosecution failed to adduce evidence suggesting that the Accused Kamara was present in Bo or Kenema Districts during the period of the AFRC government, or that he planned, instigated, ordered, committed or otherwise aided and abetted the crimes committed in Bo and Kenema Districts. Nor did the Prosecution adduce any evidence that the Accused Kamara had effective control over the perpetrators of these crimes.[867]

(a) Involvement in the 25 May 1997 Coup

432. The Trial Chamber notes that numerous witnesses, both for the Prosecution and for the Defence, testified that the Accused Kamara was one of the individuals who planned and took part in the coup.[868] The Trial Chamber is therefore satisfied that Kamara was involved in the 1997 coup.

433. The Trial Chamber is satisfied that in return for his participation in the coup, the Accused Kamara was rewarded with specific functions in the AFRC Government. He remained in those positions until the Government was ousted by the ECOMOG forces in February 1998.

(b) Council Membership

434. The Trial Chamber finds that the Accused Kamara was a member of the Supreme Council of the AFRC Government.[869] It further concludes that Kamara was an ‘Honourable’.[870]

(c) Principal Liaison Officer 3

435. The Accused Kamara does not deny that he held the position of PLO3. The Trial Chamber is satisfied that the Accused Kamara was PLO 3 during the Junta period.[871]

436. As PLO 3, Kamara was responsible for supervising the following ministries: Agriculture, Forestry, Fisheries, Energy and Power, Lotto and Income Tax. The Accused was also responsible for a government office called ‘Queen Elizabeth Quay’.[872]

437. The Trial Chamber is satisfied that that the Accused Kamara attended coordination meetings of high level members of the AFRC and RUF.[873] The Trial Chamber notes that Prosecution witness TF1-045 testified that he attended one such meeting in September 1997 at Wilberforce at which the Accused Kamara and Kanu were present.[874] It emerged in cross-examination that in a prior statement to the Prosecution the witness had omitted any mention of the presence of “Bazzy and Five-Five” at the meeting, referred only to the presence of Johnny Paul Koroma, ‘Gullit,’ SFY Koroma, ‘Kowas’ and Tamba Gborie. The witness explained that during his 2003 interview with the Prosecutor he was not concerned about ‘Bazzy’ and ‘Five-Five’ and that he only mentioned “the top commanders, their superiors.”[875]

(d) Findings

438. The Trial Chamber is satisfied that the Accused Kamara was a member of the group that organised the 25 May 1997 coup, that he was a member of the AFRC’s Supreme Council, that he was an “Honourable” and that he was PLO 3 in the AFRC Government.

439. However, no evidence was adduced regarding his activities, if any, in those positions. The Trial Chamber is therefore unable to establish whether the Accused Kamara had any de facto powers beyond his de jure titles.

4. Kamara’s Role in Kono and Kailahun Districts (14 February – 30 June 1998)

440. The Indictment alleges that the Accused Kamara was “a commander of the AFRC/RUF forces in Kono District.”[876] In its Final Brief, the Prosecution argues more concretely that the Accused Kamara was present in Kono from around mid-February to mid-May 1998 and that during that period he was not one of the senior commanders but the top ‘SLA’ Commander in the District, second only in the District wide chain of command to Denis Mingo of the RUF.[877] The Prosecution in its closing arguments stated that “it is the case of the Prosecution that only Kamara was present [in Kono District] when the crimes were committed.”[878]

441. The Prosecution concedes that the Accused Kamara was not in Kailahun District during this period.[879]

442. Numerous Defence witnesses testified that they were in Kono during the relevant period and did not see or hear of the Accused Kamara.[880] The Prosecution responds that since the Defence has adduced no evidence placing the Accused elsewhere during the relevant period, the testimony of these witnesses is of no consequence.[881]

443. A significant number of Defence witnesses testified that it was the RUF who were in control of Kono District during the relevant period and that if AFRC fighting forces participated in operations in the region, they did so on the orders of the RUF and not of their own volition.[882]

(a) Kamara’s Role prior to the Departure of Johnny Paul Koroma from Kono District

444. The Prosecution’s case on the role of the Accused Kamara during this period relies exclusively on the testimonies of witnesses George Johnson and TF1-334. George Johnson was the Chief Security Officer to the Accused Kamara during the AFRC government[883] and travelled with the Accused Kamara during the February 1998 retreat from Freetown until the 1999 invasion of Freetown. Witness TF1-334 was a senior assistant to a close associate of the Accused Kamara[884] throughout the period covered in the Indictment. Thus, the witness was familiar with Kamara’s activities.

445. While Prosecution witness George Johnson testified that the Accused Kamara participated in the attack on Koidu Town,[885] witness TF1-334 does not place Kamara in Kono District until Johnny Paul Koroma had departed from Kailahun District.[886]

446. Witness TF1-334 testified that the Accused Kamara was present at a meeting of senior AFRC and RUF commanders in early March 1998 in Kabala, Koinadugu District, at which the takeover of Kono District was planned. The commanders agreed to attack Koidu Town.[887] RUF commander Denis Mingo, the witness, the Accused Kamara and other soldiers then collected Johnny Paul Koroma from his village and moved to Makeni, Bombali District.[888]

447. From Makeni, the troops moved towards Kono District. The witness was in an advance convoy which cleared the way of Kamajor ambushes. He testified that when the troops met Kamajor resistance at Five-Five Spot in Koidu Town, Johnny Paul Koroma withdrew to Masingbeh, a safer location nearby.[889] The witness testified that the AFRC/RUF soldiers captured Koidu Town and that RUF commander Denis Mingo assumed the position of overall commander of both factions.[890]

448. Witness TF1-334 does not mention the presence of the Accused Kamara during the attack on Koidu Town; rather, there is some indication from the Witness’s testimony that the Accused Kamara may have remained in Makeni. The witness testified that following the attack, he and other soldiers went to Makeni to collect RUF commander Issa Sesay. He stated that the Accused Kamara was in Makeni when he arrived there and that Kamara remained in Makeni after he returned to Kono.[891]

449. Witness George Johnson also gave evidence on the attack on Koidu Town. He corroborated the testimony of witness TF1-334 regarding the meeting of senior AFRC/RUF commanders in Kabala. However, George Johnson testified that the Accused Kamara and Dennis Mingo attacked Kono together; specifically that Dennis Mingo commanded the troops and the Accused Kamara was his Deputy.[892]

450. The Trial Chamber considers the above evidence regarding the presence and role of the Accused Kamara during this short period to be inconclusive. The Trial Chamber will therefore make no determination on his role during the period in which Johnny Paul Koroma was overall commander in Kono District.

(b) Kamara’s Role after the Departure of Johnny Paul Koroma from Kono District

(i) Prosecution Witnesses

451. Both Witnesses TF1-334 and George Johnson testified that following the departure of Johnny Paul Koroma for Kailahun, Denis Mingo aka ‘Superman’ of the RUF became the overall commander of the rebel forces in Kono District, while the Accused Kamara became the overall commander of the AFRC fighting forces.[893] Although Denis Mingo was superior to the Accused Kamara,[894] witness TF1-334 and the other AFRC soldiers began to receive their orders from him.[895] Kamara remained the most senior commander of the SLAs in Kono until the arrival of the Accused Brima in mid-May 1998.[896]

452. Witness George Johnson testified that at a meeting held after Koroma’s departure to Kailahun, Mingo promoted some of the men in rank, including the witness, with these promotions being endorsed by the Accused Kamara.[897] Witness TF1-334 similarly testified that after the capture of Kono, Kamara took over the authority for giving promotions to AFRC fighters from Johnny Paul Koroma.[898] He gave promotions to Lieutenant Lagah, Lieutenant ‘Tito’, Lieutenant ‘Savage’, Lieutenant Kallay, Lieutenant Bakarr and Lieutenant ‘Mosquito’.[899]

453. While the AFRC fighting forces in Kono were subordinate to the RUF, Prosecution witnesses provided significant evidence of cooperation between the AFRC troops subordinate to the Accused Kamara and the RUF troops. The two factions planned and participated in joint operations,[900] and Sam Bockarie, who was based in Kailahun, sent weapons and ammunition to the troops in Kono which were distributed among both factions.[901] Thus, according to Prosecution witnesses, the AFRC and the RUF had “cordial relations” and worked together.[902]

(ii) Defence Witnesses

454. In contrast, Defence witnesses suggest that there was less cooperation and greater intimidation and subordination between the AFRC and the RUF during this period.

455. Witness DAB-018 testified that AFRC soldiers in Kono District were completely subordinate to the RUF, and that any AFRC soldier who refused to take orders from the RUF would be shot and killed. The witness said he saw the RUF capture members of the AFRC fighting forces and that he later saw their dead bodies. Any former soldier who referred to himself as a ‘soldier’ rather than as a member of the RUF would “have problems” as an order had been issued saying that there was no “SLA”.[903] The RUF would issue passes on which was written United Front of Sierra Leone allowing members of the AFRC fighting force to travel from one area to another.[904]

456. Witness DAB-059 testified that members of the AFRC were unwilling to take orders from the RUF during this period because the RUF had been attacking, disarming, and looting from them. As a result, AFRC soldiers were afraid of the RUF, and while some surrendered others fled to Kabala in Koinadugu District.[905]

457. Witness DAB-095 explained that soon after Johnny Paul Koroma left for Kailahun District there was no relationship at all between the two factions. He asserted that the RUF had harassed AFRC soldiers by disarming its officers and their men and ordering them to the war front. The witness added that this had happened to him among others. The rebel soldiers who went to the front voluntarily were provided with weapons, and those who refused to volunteer were sent without.[906]

458. Witness DBK-117 testified that in Kono District the AFRC had no direct command and that they only took orders from the RUF.[907] In addition, he described an incident in which Denis Mingo discovered a former soldier using a portable communications handset. Believing that they were using it to communicate with ECOMOG, Mingo ordered an attack on the AFRC faction based at Konomanyi Park. The former soldiers fired back but were outnumbered by the RUF.[908] Witness TF1-334 corroborated the evidence regarding use of the communications set, testifying that while former soldiers were allowed to listen in on communications, they were not permitted to engage in communications of their own.[909]

459. Despite their evidence of a period of cooperation, even the Prosecution witnesses point to a deterioration of relations between the two factions during the latter part of the relevant period in Kono District. According to witness TF1-334, on one occasion Morris Kallon (RUF) informed the AFRC fighting force that they could not hold military muster parades and that they had no right to call themselves ‘SLAs’ because there was only one faction in Kono and it was the RUF. During the ensuing melee Kallon shot two soldiers of the AFRC faction.[910] The witness concluded that although there was no outright fighting between the two factions relationship the rapport was “not good. The relationship was no longer cordial.”[911]

(c) Findings

460. The Trial Chamber finds that the Defence witness evidence is not inconsistent with that of witness TF1-334 who similarly testified that there were a number of RUF commanders operating in Kono District who reported to Denis Mingo.[912]

461. The Trial Chamber concludes that the Accused Kamara was the overall commander of the AFRC forces based in Kono District from early March 1998 to mid-to-late April 1999. While Kamara was subordinate to Denis Mingo, and the AFRC troops were subordinate to those of the RUF, the Trial Chamber is not persuaded by those Defence witnesses who testified that the AFRC troops had no choice but to participate in this arrangement. Whether the Accused Kamara had effective control over the AFRC troops in Kono District will be discussed elsewhere in the Judgement.[913]

(d) The Return of the Accused Brima

462. The Accused Kamara remained overall commander of the AFRC troops until the return of Brima from Kailahun. However, the evidence of crimes committed in Kono District related to crimes committed before Brima assumed command. Upon arrival in Kono District, Brima took overall command of the AFRC troops. The Accused Kamara became Brima’s second in command,[914] and travelled with him to Koinadugu District where both men met with SAJ Musa. There the two Accused and Musa defined the new objectives of the AFRC rebel movement.[915]

5. Kamara’s Role in Koinadugu and Bombali Districts (June 1998 – November 1998)

463. The Indictment alleges that the Accused Kamara was “a commander of the AFRC/RUF forces which conducted armed operations throughout the north, eastern and central areas of the Republic of Sierra Leone, including, but not limited to, attacks on civilians in Koinadugu and Bombali Districts between mid February 1998 and 31 December 1998.”[916] In its Final Brief, the Prosecution submits that during the advance from Mansofinia to Camp Rosos, the Accused Brima was at all times the commander of the AFRC troops who formed a part of his brigade, whilst the Accused Kamara was his second in command and the Accused Kanu held a senior command position.[917]

464. The Defence submits that another group of named individuals were the Commanders during this journey. This evidence has been assessed in the section of the Judgement on Brima’s role in Koinadugu and Bombali Districts.[918]

(a) Kamara’s Command Position within the AFRC Troops from Mansofinia to Rosos

465. The Prosecution evidence shows that Accused Kamara was Brima’s Deputy at Mansofinia and throughout the journey to Eddie Town.[919]

466. The Prosecution provided little substantive evidence on the de facto role, authority, and contributions of the Accused Kamara to the activities of the AFRC troops during this period. However, it did establish that the Accused Kamara was one of the senior AFRC faction commanders present at the meeting with SAJ Musa where the restructuring of the troops was discussed.[920] In the new structure established following the meeting the Operations Commander and the Provost-Marshal were required to report to the Accused Kamara.[921] At Rosos, the Accused Kamara was based at ‘headquarters’, from where operations were planned and orders issued. [922] Witness TF1-334 also testified that the Accused Kamara was one of the commanders who made decisions regarding the brigade.[923]

467. Witness TF1-334 testified that at Rosos, the Accused Kamara oversaw one of the companies of AFRC troops as well as being deputy chief in command, although the witness does not explain further what this supervisory role entailed.[924]

468. In conclusion, the Trial Chamber is satisfied that the Accused Kamara was the Deputy Commander of the AFRC fighting forces in Koinadugu and Bombali Districts. It further recalls its finding in the section of the Judgement on the Military Structure of these forces, that while the structure was not one of a traditional army the forces were nevertheless well-structured and organised.

(b) Kamara’s Alleged Detention in ‘Colonel Eddie Town’

469. The Trial Chamber has found that, while the three Accused were arrested for an indeterminate period at Colonel Eddie Town, they were released and reinstated by SAJ Musa at Newton, on the outskirts of Freetown.[925]

6. Kamara’s Role in Freetown and the Western Area (January 1999 – February 1999)

470. The Prosecution submits that the Accused was the Second in Command of the forces invading Freetown in January 1999.[926]

471. The Kamara Defence submits that other known individuals were the overall commanders of these forces, and that several Defence witnesses who were in Freetown during the invasion said they did not see Kamara during this period.[927]

472. As noted above, the Trial Chamber has found that following the death of SAJ Musa at Benguema, the Accused Brima became the overall commander of the AFRC fighting forces invading Freetown. Based on the same assessment of witness reliability and credibility, the Trial Chamber is satisfied that the Accused Kamara was Brima’s Deputy.[928] He remained in this position throughout the Freetown invasion and the retreat of the troops.

473. The Prosecution adduced evidence establishing that on 5 January 1999, the Accused Kamara was present at a meeting chaired by Brima at Orugu Village[929] in which the invasion of Freetown was discussed.[930] The Accused Kamara was present at headquarters at State House immediately following its capture on 6 January 1999.[931] He attended a meeting of senior commanders when an attack on Wilberforce, where ECOMOG forces were based, was discussed.[932] After the capture of the State House, the Accused Brima ordered that Pademba Road Prison should be opened and the prisoners released. The Accused Kamara participated in the release of the prisoners. The Accused Kamara ordered that the released prisoners should move to State House. Some prisoners followed this order, others did not.[933] The Accused Kamara spoke with Sam Bockarie on the radio prior to the capture of State House.[934] The Accused Kamara was present at the State House when the Accused Brima announced to the battalion commanders and others, that they were likely to lose “the ground totally” and that the burning of Freetown should start.[935] After the loss of State House, the Accused Kamara gave an order to the AFRC troops to burn houses.[936] Following the retreat from Freetown, the Accused Kamara took part in a second attack on Freetown that took place with the participation of RUF commanders.[937]

(a) Findings

474. The Trial Chamber concludes that the Accused Kamara was Deputy Commander of the forces invading Freetown on 6 January 1999, and that he remained in that position throughout. It is further satisfied that in this position he had a significant degree of authority.

7. Kamara’s Role in Port Loko District (February 1999 – July 1999)

475. The Prosecution submits that the Accused Kamara was the overall Commander of the fighters in the area commonly referred to as “the West Side.”[938] The Defence position is that other known individuals were the commanders in the area.[939]

(a) The Presence of the Accused in Port Loko District

(i) Prosecution Witnesses

476. Witness George Johnson testified that all three Accused retreated with the troops to Benguema in the Western Area.[940] They then moved to Waterloo where together with the RUF they planned a second attack on Freetown.[941] The attack was unsuccessful and from Waterloo the RUF pulled back to Lunsar, while Brima and Kanu went to Makeni with a group of RUF commanders.[942] George Johnson testified that he accompanied the Accused Kamara and a group of troops to Four Mile, to Mamamah, near Mile 38.[943] At this point the Accused Kamara was in command and he gave orders to the troops at Mamamah which were obeyed.[944] From Mamamah they went to Gberibana, an area in Port Loko District colloquially known as the ‘West Side’.[945]

477. Witness Gibril Massaquoi retreated from Freetown to Waterloo. On his arrival he met with RUF troops and approximately a week later he went to Lunsar with Denis Mingo.[946] He testified that while he was at Waterloo, troops from Freetown arrived in successive groups and all three Accused eventually came to Waterloo.[947]

478. From Lunsar, the witness travelled to Waterloo with Mingo on several occasions.[948] He also testified about the second unsuccessful attack on Freetown. Subsequently, at Lunsar in early April, infighting broke out between Issa Sesay and Denis Mingo of the RUF, the eventual result of which was that Mingo controlled Lunsar and Makeni and Sesay fled to Kono.[949] At an unspecified time in April, Mingo contacted the Accused Brima and requested his assistance in the fight against Sesay. The Accused Brima and Kanu, as well as ‘O-Five’ and others then travelled to Masiaka and Makeni in Bombali District to assist.[950]

479. Massaquoi testified that around this time, Kamara’s troops were pushed back by ECOMOG from Mile 38 to the Okra Hills Area.[951] Witness Gibril Massaquoi subsequently travelled to Okra Hills in June and said that at that time Kamara was the commander of the troops there known as ‘the West Side Boys’.[952]

480. Witness TF1-153 corroborates evidence of a split between the Accused Brima and Kanu and the Accused Kamara stating that the Accused Brima and Kanu went to Masiaka while Kamara went to the Westside because he was ‘disgruntled’ and did not want to assist the RUF.[953]

(ii) Defence Witnesses

481. As with Bombali and the Freetown areas, Defence witnesses on Port Loko District described an alternate command structure involving FAT Sesay, Junior Lion and Foday Kallay. Witness DBK-037 testified that Foday Kallay was not in the West Side.[954] Witness DAB-095 testified that Foday Kallay was the commander in the West Side.[955] Witness DAB-033 testified that Foday Kallay was the overall commander and Junior Lion was second in command.[956] However, under cross examination he conceded that he only went once to the West Side and did not know who the commander was in that location.[957] Witnesses DBK-037 and DBK-012 were in the West Side and testified that Junior Lion was second in command to overall commander FAT Sesay.[958] Witnesses DBK-131 and DBK-129 were in the West Side and testified that Junior Lion was the overall commander and Tito was second in command but Foday Kallay arrived later and took over command.[959] Witness DBK-129 stated that he never saw Kamara and said Kamara had no command over any troops in the West Side.[960]

482. Witness DBK-012 testified that Prosecution Witness George Johnson, also known as ‘Junior Lion.’ was the commander who organised the attack on Port Loko, calling a muster parade and selecting the commanders to go on the attack, including Junior Lion, who was the Operations Commander, the witness and Sheriff alias ‘Cambodia’. They went on the operation around 27 April 1999.[961] This witness denied that AFRC troops attacked Mamamah, stating that they bypassed it to avoid ECOMOG forces stationed there.[962]

(iii) Findings

483. As the witnesses who testified about Port Loko are the same witnesses who testified about parts of the journey of the three Accused over the period covered by the Indictment, the Trial Chamber refers to its previous assessments on the credibility and reliability of relevant Defence and Prosecution witnesses.[963]

484. The Trial Chamber is satisfied that upon withdrawing from Newtown in late February or early March 1999, the Accused Kamara retreated to the region of Okra Hills in Port Loko District. During this same period, the Accused Brima and the Accused Kanu went to Makeni, Bombali District.

(b) Command of the AFRC troops in the ‘West Side’

(i) Prosecution Witnesses

485. Witness TF1-334 testified that in approximately early April 1999, after the retreat from Mammah and Mile 38, the Accused Kamara called a meeting at Magbeni at which he created a new command structure for the AFRC troops in the ‘West Side’.[964] The AFRC fighting forces then under the Accused Kamara, including the abducted civilians, numbered over 700.[965] ‘Bazzy’ appointed himself the Chief Commander.[966] The witness added that Prosecution witness George Johnson, known as ‘Junior Lion,’ was the Operational Commander.[967]

486. George Johnson’s testimony on the command structure in Port Loko District, although less detailed, generally corroborates that of witness TF1-334. He testified that Kamara was in command of a group of AFRC troops that went to Four Mile and Mamamah, near Mile 38.[968] The witness describes a series of orders given by the Accused Kamara to the troops at Mamamah which were obeyed.[969] From Mamamah they went to Gberibana, in the ‘West Side.’[970] At the ‘West Side’, Kamara called a meeting at which he restructured the troops and made appointments.[971]

487. The Trial Chamber notes that Witness TF1-153 also testified that ‘Bazzy’ was the commander in the West Side. In cross-examination it emerged that the witness, in a prior statement, he stated that ‘Papa’ was the commander and ‘Bazzy’ and Bio were his deputies, although he also stated that all three were commanders.[972] The Trial Chamber notes that witness TF1-153 was not present in Port Loko District and therefore relies on the more detailed and consistent evidence of witnesses George Johnson and TF1-334.

(ii) Defence Witnesses

488. Defence witnesses DAB-095, DAB-033, DBK-037, DBK-012, DBK-131 and DBK-129 testified that FAT Sesay, George Johnson and Foday Kallay were the senior commanders at the West Side and not the Accused Kamara.

489. Witness DAB-095, an SLA infantry soldier,[973] in cross-examination that he did not know whether the Accused Kamara was the commander of the West Side Boys but that he knew Foday Kallay was the commander in the West Side.[974] The witness testified that he only travelled to Port Loko District to surrender, an assertion which casts some doubt on his credibility as Port Loko remained a rebel stronghold.[975]

490. Witness DAB-033, a soldier with the SLA promoted to the rank of corporal in 1996,[976] testified that in February 1999, he went together with Prosecution witness George Johnson to Four Mile.[977] George Johnson was in charge of the troops at Four Mile. A religious council requested that the AFRC release child soldiers, and the witness testified that he sought permission to do so from Johnson. The children were released although other commanders, including ‘Gunboot’ disagreed and threatened the witness. The witness subsequently travelled to Makeni, Bombali District where he stayed for two months.[978] On cross-examination, the witness testified that he went to the West Side after the Lomé Peace Accord was signed and at that time Foday Kallay was the overall commander and George Johnson was his second in command. The witness testified that he knew this from radio communications he heard from February through April 1999.[979] However, the witness also testified in cross-examination that as he was not at the West Side, he did not know if Kamara was the commander.[980]

491. Witness DBK-037, a soldier in the SLA[981] testified that at Four Mile, “FAT” was the overall commander but that he was not at the “point section” which he left for Junior Lion to command. He knew this because the appointment was made by FAT Sesay in public and the witness was present.[982] On cross-examination, the witness stated that after the retreat from Freetown, he worked with George Johnson in the area known as the ‘West Side’ in Port Loko District up until the day the Lomé Peace Accord was signed in Togo.[983] According to the witness, during that time Junior Lion was under the authority of “FAT” who was the commander at West Side, not Kamara.[984]

492. Considering the structure of the AFRC troops at that time, the Trial Chamber notes the evidence of Defence witness DBK-012 who testified that he was both present in Port Loko District throughout the relevant period and held a relatively important position within the AFRC forces at that time.

493. The witness, a member of the SLA since 1989/1990,[985] testified that after the invasion of Freetown in 1999, he retreated to Benguma for 2 to 4 weeks, went on an operation in Tumbo, and then went to Lumpa for two weeks before moving to Four Mile with Junior Lion, “05” and other AFRC commanders,[986] placing him in Port Loko District in approximately mid-March or early April 1999. He testified that the Accused Kamara was not at Four Mile at this time.[987] The witness testified that he was a company commander and he, together with Junior Lion, led civilians and troops through Magbeni to Rogberi, also known as the ‘West Side’.[988] The witness testified that at West Side, it was FAT Sesay who was in command and George Johnson who was second in command;[989] however, on cross-examination he testified that Johnson was overall commander at the West Side.[990] He testified that Johnson organised the operation to Port Loko to combat ECOMOG, called a muster parade prior to the attack, gave the order to launch the offensive at Manaarma, ordered the witness to kill a woman who was suspected of having distributed arms and ammunition to the Gbethis, and was present during the offensive against ECOMOG in Port Loko.[991] The witness testified that he did not see the Accused Kamara at West Side nor did he hear that he was there.[992]

494. DBK-131 testified that he was a commander with the AFRC fighting forces during the attack on Freetown and thereafter.[993] On cross-examination he testified that he was one of the “West Side Boys” under the command of Foday Kallay and that he did not hear that Kamara was a commander in the West Side.[994]

495. Witness DBK-129 testified that he was present in the ‘West Side’ and that George Johnson was the overall commander, that ‘Tito’ was second in command, but that Foday Kallay arrived later and took over command. He stated that he never saw the Accused Kamara and that Kamara did not have command over any troops on the ‘West Side’.[995]

496. In reconciling the evidence examined above, the Trial Chamber generally accords greater weight to the evidence of witnesses who were present in Port Loko District over that of witness DAB-095 who testified that he was only present in Port Loko District immediately prior to the cease fire and DAB-033 who testified that he was primarily in Makeni, Bombali District during the relevant period.

497. Defence witnesses DAB-095, DAB-033, DBK-131 and DBK-129 all testified that Foday Kallay was overall commander at the West Side. However, the Trial Chamber is satisfied that the evidence only indicates Foday Kallay may have assumed the position of senior command but only following the relevant period. Witness DAB-095 testified that Foday Kallay was the commander in the West Side, but the witness only arrived in Port Loko District immediately prior to the ceasefire. Witness DAB-033 testified that he went to the West Side after the Peace Accord was signed and that Foday Kallay was overall commander at that time. Witness DBK-129 testified that initially Junior Lion was overall commander and that Foday Kallay arrived later and took over command. Witness DBK-131 testified that he was a “West Side Boy” under the command of Foday Kallay which the Trial Chamber finds consistent with the evidence of Prosecution Witness TF1-334 who testified that “Kallay” was a battalion commander at the time but which does not suggest that Foday Kallay was a senior commander.

498. The Trial Chamber notes further that none of the witnesses described the presence of Foday Kallay in Port Loko District outside of the ‘West Side’ nor did any of the witnesses provide evidence of the day to day exercise of authority or active role played by Foday Kallay. The evidence thus amounts to the mere assertion of his position, late in the relevant period, which the Trial Chamber gives little weight in light of more detailed evidence which suggests a different command structure.

499. Defence witness DBK-037 stated that FAT Sesay was the overall commander at Four Mile and the ‘West Side’. Witness DBK-012 testified that FAT Sesay was the overall commander at the ‘West Side’. However, the Trial Chamber finds the evidence of Witness DBK-012 unreliable on this point as on cross-examination he accepted that it was Junior Lion who was overall commander at the ‘West Side’.[996] The Trial Chamber finds the testimony of witness DBK-037 regarding the command structure unreliable in that he insisted throughout his testimony that FAT Sesay was the overall commander from the death of SAJ Musa in Benguema throughout the invasion and retreat from Freetown in January 1999. While the Trial Chamber does not discount the possibility that FAT Sesay was a commander during these periods, it finds that more senior commanders were also active.

(iii) Findings

500. The Trial Chamber is satisfied beyond reasonable doubt that the Accused Kamara was the overall commander of the AFRC forces in Port Loko District, and that he had substantial authority in this position.

D. Santigie Borbor Kanu

1. Allegations and Submissions

501. The Indictment alleges that “at all times relevant to the Indictment” the Accused Kanu was a “senior member of the AFRC, Junta and AFRC/RUF forces.”[997] It also alleges that he was a “member of the Junta governing body, the AFRC Supreme Council.”[998] It further charges that he was “a senior commander of the AFRC/RUF forces in Kono District”[999] between mid February 1998 and about 30 April 1998[1000] and “a commander of AFRC/RUF forces which conducted armed operations throughout the north, eastern and central areas of the Republic of Sierra Leone, including, but not limited to, attacks on civilians in Koinadugu and Bombali District between about mid February 1998 and 31 December 1998.”[1001] Finally, it alleges that the Accused Kanu, together with the Accused Brima and Kamara “was also one of three commanders of AFRC/RUF forces during the attack on Freetown on 6 January 1999.”[1002]

502. In its Final Brief, the Kanu Defence submits that the Prosecution failed to establish that Kanu had any form of command and control over the perpetrators of the crimes outlined in the Indictment[1003] It further argues that from the arrival of the Accused in Koinadugu District, the Accused Kanu was responsible for protecting and taking care of civilians, particularly family members of soldiers.[1004]

2. Personal Background of Kanu

503. The Defence did not challenge the personal information adduced by the Prosecution regarding the Accused Kanu. The Prosecution alleges that Kanu was born in March 1965 in Maforki Chiefdom, Port Loko District or in Freetown.[1005] Kanu joined the Sierra Leone Army on 3 December 1990 at the Benguema Training Camp, Freetown, Western Area.[1006] He was a Corporal at the time of the coup in May 1997.[1007]

504. The Kanu Defence does not dispute that the Accused Kanu was nicknamed ‘Five-Five’ after the last two digits of his regimental identification number SLA/18164955. The Kanu Defence does, however, argue that ‘Five-Five’ was an extremely common nickname, and therefore that any Prosecution witnesses referring to ‘Five-Five’ should have been required to specify whether or not they were referring to the Accused Santigie Kanu.[1008]

3. Positions of Responsibility in the AFRC Government (25 May 1997 – 14 February 1998)

505. The Indictment alleges that the Accused was a senior member of the Junta government, and a member of the Junta governing council.[1009] The Prosecution, in its Final Trial Brief, submits that as a member of the Supreme Council “the third Accused was only beneath Johnny Paul Koroma, SAJ Musa, and the three PLOs in the Junta hierarchy.”[1010] It therefore asks the Chamber to find that the Accused was liable for planning, instigating or otherwise aiding and abetting enslavement and the crimes committed in Kenema, Bo and Kailahun Districts.[1011]

506. In its Final Trial Brief, the Kanu Defence submits that the Prosecution failed to adduce evidence that the Accused Kanu was ever present in Bo, Kenema or Kailahun Districts.[1012] In addition, he was not in a position to command and/or control the individuals responsible for the commission of the crimes.[1013]

(a) Involvement in the 25 May 1997 Coup

507. The Trial Chamber notes that numerous witnesses, both for the Prosecution and for the Defence, testified that the Accused Kanu was one of the individuals who planned and took part in the coup.[1014] The Trial Chamber is therefore satisfied that Kanu was involved in the 1997 Coup.

508. The Trial Chamber is satisfied that in return for his participation in the coup, the Accused Kanu was rewarded with a position on the AFRC Supreme Council. He remained in this position until that government was ousted by the ECOMOG forces in February 1998.

(b) Council Membership

509. The Trial Chamber finds that the Accused Kanu was a member of the Supreme Council during the AFRC junta.[1015] It further concludes the Accused was an ‘Honourable.’[1016]

(c) Other Activities

510. There is further evidence of the presence of the Accused Kanu at coordination meetings between high level members of the AFRC and RUF in Freetown.[1017] In addition, TF1-019 testified that he saw Sam Bockarie and “Honourable Five Five” address a meeting at the Koidu community centre during the Junta period. The men told those present that they were now in control of the government and that they wanted the support of the youth.[1018] Defence witness DAB-042 also testified that Kanu addressed a meeting in Koidu town in which he encouraged the cleaning and upkeep of the town.[1019] The Trial Chamber concludes that while this evidence corroborates documentary evidence that the Accused had a position in the AFRC government, it provides no indication of his seniority within that government.

511. The Prosecution has adduced no evidence that the Accused Kanu held a ministerial or other high ranking government position. In addition, there is no evidence regarding his role and/or contributions at coordination meetings. Thus, while the Trial Chamber concludes that the Accused Kanu was a member of the Supreme Council, and that he attended coordination meetings with high level members of the AFRC and RUF, it is unable to determine whether he played an influential role in the running or policy-making of the AFRC Government

512. The Accused Kanu was in Freetown during the February attack of ECOMOG on Freetown and on 13 February 1998 retreated along the same route as the Accused Kamara. He was present when the troops reconvened at Masiaka and later at Makeni.[1020]

4. Kanu’s Role in Kono and Kailahun Districts (February 1998 – May 1998)

513. The Indictment alleges that the Accused Kanu was “a senior commander of the AFRC/RUF forces in Kono District. In addition, Santigie Borbor Kanu was a commander of AFRC/RUF forces which conducted armed operations throughout the north, eastern and central areas of the Republic of Sierra Leone [...]”.[1021] However, in its closing arguments, the Prosecution stated that “it is the case of the Prosecution that only Kamara was present when the crimes were committed. Brima and Kanu, however, can still be held liable for those crimes under a theory of joint criminal enterprise,”[1022] a point it reiterates in its Final Brief.[1023]

514. In its Final Brief, the Kanu Defence argues that the Prosecution evidence fails to prove that the Accused stayed more than a few days in Kono after the fall of the AFRC regime.[1024]

515. Both parties have agreed that the Accused Kanu was not present during the relevant period. The Prosecution does not argue that Kanu had command responsibilities. Thus, having dismissed Joint Criminal Enterprise as a mode of individual criminal responsibility, the Trial Chamber makes no findings on the Role of the Accused in Kono District.

5. Kanu’s Role in Koinadugu and Bombali Districts (June 1998 – November 1998)

516. The Indictment alleges that the Accused Kanu was “a commander of AFRC/RUF forces which conducted armed operations throughout the north, eastern and central areas of the Republic of Sierra Leone, including, but not limited to, attacks on civilians in Koinadugu and Bombali Districts between about mid-February 1998 and 31 December 1998.”[1025] In its Final Brief, the Prosecution clarifies that the case of the Prosecution is that from the advance to Mansofinia to Camp Rosos, the First Accused was at all times the commander of the SLA troops, while the Second Accused was second in command to the First Accused and the Third Accused held a senior command position.

517. The Kanu Defence submits that Kanu was not part of the advance team moving with Prosecution witness George Johnson from Manosfinia to Camp Rosos further arguing that several groups of AFRC soldiers passed through the area over a period of months.[1026] The Kanu Defence also contends that the Accused Kanu was responsible for protecting civilians and not for exploiting them.[1027]

(a) Kanu’s Position within the AFRC Troops from Mansofinia to Rosos

(i) Prosecution Witnesses

518. The Trial Chamber recalls that following the retreat of the AFRC fighting forces from Kono District, SAJ Musa instructed the Accused Brima to find a base in Bombali district.[1028] Kanu joined Brima on SAJ Musa’s instructions.[1029]

519. Witness TF1-334 testified that the Accused Kanu was Chief of Staff during this journey and that he was directly subordinate to the Accused Kamara and superior to the battalion commanders.[1030]

520. Witness George Johnson testified that the Accused Kanu held the G-5 position, and that he was in charge of all abductees.[1031] While George Johnson corroborated TF1-334’s evidence that at Mansofinia the Accused Brima was the overall commander and the Accused Kamara his Deputy, his testimony suggests that FAT Sesay was third in command, and that a known AFRC commander[1032] was fourth in command. The Trial Chamber observes that in cross-examination it emerged that the witness had given conflicting information about the G5 position in Mansofinia.[1033] The Trial Chamber has found that the evidence of witness George Johnson in relation to the G4 and G5 positions in Kono District was unreliable, and in the absence of the corroboration of other witnesses it does not accept this aspect of the witnesses’ evidence in relation to Bombali District.

(ii) Defence Witnesses

521. The Trial Chamber refers to its findings above on the credibility and reliability of witnesses testifying about the command structure during the advance of the AFRC fighting forces from Mansofinia in Koinadugu to Camp Rosos in Bombali District. [1034]

(b) Findings

522. The Trial Chamber finds that the Prosecution evidence with regard to Kanu being third in command in Koinadugu and Bombali Districts was insufficient. Witness TF1-334 does not specifically state that as Chief of Staff, the Accused Kanu was third in command in Bombali District. He testified that the Accused Kanu was third in command while Chief of Staff in Freetown.[1035] Moreover, the other witnesses who testify that the Accused Kanu was Chief of Staff in Bombali District do not state that this made him third in command.[1036] In his testimony on Bombali District, witness TF1-334 stated that as Chief of Staff the Accused Kanu passed on orders from the Accused Brima to the Operations Commander.[1037] However, he also stated in cross-examination that the Accused Kanu’s role as Chief of Staff was to enforce orders given by the Accused Brima, the Accused Kamara and the Operations Commander.[1038] The Operations Commander reported to the Accused Kamara and Brima.[1039]

523. Prosecution Witnesses TF1-334 testified that the Accused Kanu was “in total control” of abducted women.[1040] After the operation at Karina, in which women were abducted, the Accused Kanu informed commanders that they would have to “sign for these women.”[1041] The witness also explained that any man who had a problem with his “wife” would notify Kanu, and vice-versa. As will be described in further detail below, in cases in which a soldier had a problem with his “wife,” the Accused would contact the “Mammy Queen.” If the Accused Kanu found that the “wife” was guilty of misbehaviour, she would either be beaten or locked “for some time” in a box in which bags of rice were usually stored.[1042]

524. The witness further explained that the Accused Kanu issued written disciplinary orders for abducted women which he gave to the Mammy Queen.” The witness recalled one such disciplinary order for women who were alleged to have “misbehave[d] to her husband.”[1043] Kanu implemented the disciplinary system on at least one occasion, ordering the “Mammy Queen” to give a woman he found guilty “twelve lashes’ which she received.[1044] No evidence has been adduced suggesting that this system also applied to former soldiers who treated their abducted wives badly.

525. Witness TF1-334 testified that the Accused Kanu was also in charge of military training at Camp Rosos, including the training of abducted civilians.[1045] George Johnson testified that Kanu and FAT Sesay were in charge of providing military training to civilians, including children, at Camp Rosos.[1046]

526. The Trial Chamber is satisfied that regardless of whether the Accused Kanu held the post of G-5, or was third in command in Koinadugu and Bombali Districts, he was a senior commander of the AFRC fighting force. In addition, he was the Commander of the AFRC fighting force in charge of abducted civilians including women and children. Whether he had effective control over the AFRC fighting forces will be assessed elsewhere in this Judgement.[1047]

(c) Kanu’s Alleged Detention in ‘Colonel Eddie Town’

527. The Trial Chamber has found that, while the three Accused were arrested for an indeterminate period at Colonel Eddie Town, they were released and reinstated by SAJ Musa at Newton, on the outskirts of Freetown.[1048]

6. Kanu’s Role in Freetown and the Western Area (January 1999 – February 1999)

528. The Prosecution, in its Final Brief submits that the Accused Kanu was present in Freetown during the January 1999 invasion and that the invasion was planned. As the third in command, it asks the Trial Chamber to infer and that he actively participated in the planning phase.[1049] It further alleges that the Accused Kanu personally committed at least two unlawful killings in the Freetown area, ordered the commission of specific crimes, and aided and abetted others.[1050]

529. In its Final Brief, the Kanu Defence makes no specific submissions on Kanu’s role in Freetown and the Western Area.

530. The Trial Chamber refers to its discussion above about the credibility and reliability of the witnesses who testified about the invasion of Freetown in January 1999.[1051]

531. Witness TF1-184 testified that while SAJ Musa was alive, ‘Five-Five’ was one of a number of commanders and his rank was lieutenant colonel.[1052] Both witnesses TF1-184 and TF1-334 testified that following the death of SAJ Musa, Five-Five was promoted to brigadier and made army Chief of Staff.[1053] Witness Gibril Massaquoi testified that after his release from Pademba Road prison on 6 January 1999, he attended a meeting at State House at which he learnt that the Accused Kanu was “Chief of Army Staff”. [1054] Witness TF1-334 testified that on 6 January 1999, he heard the Accused Kanu on the local radio. Kanu identified himself as the Chief of Staff and stated that the army had taken over the government of President Kabbah and their commander was Lieutenant General Alex Tamba Brima.[1055] Witness TF1-334 stated that this made him third in command.[1056]

532. The Trial Chamber finds that he was active in his position as Chief of Staff. George Johnson testified that at the meeting in Orugu village, chaired by Brima and attended by the AFRC commanders, in which the movement to Freetown was planned, Kanu reiterated Brima’s orders to the commanders. Kanu specifically reminded them about Brima’s order that police stations should be burnt down and that targeted persons should be executed.[1057]

533. As will be discussed elsewhere in this Judgement, there is credible evidence that the Accused personally committed crimes during this period and that he ordered the commission of crimes and that his orders were obeyed.[1058]

534. The Trial Chamber notes that the Accused Kanu was based at State House, the headquarters of the AFRC fighting forces.[1059] He attended the meeting of commanders held there on the evening of 6 January at which an attack on Wilberforce was discussed.[1060] The Trial Chamber further observes that the evidence shows that Kanu was almost always at Brima’s side during the Freetown invasion and retreat.[1061]

(a) Findings

535. The Trial Chamber is satisfied that the Accused Kanu was Chief of Staff and also the commander in charge of civilian abductees throughout the attack on Freetown on 6 January 1999 and the retreat to Newton.

7. Kanu’s Role in Port Loko District (February 1999 – July 1999)

536. In its Final Brief, the Prosecution concedes that Acused Kanu was not present in Port Loko during the Indictment period, and alleges instead that during this period he together with the Accused Brima “fled with the RUF leadership to Makeni” in Bombali District.[1062]

537. The Trial Chamber is satisfied that the Accused Kanu remained in the Western Area until early April 1999 when he went to Makeni, Bombali District. The Trial Chamber therefore makes no findings with regards to the Role of the Accused Kanu in Port Loko District.

VIII. MILITARY STRUCTURE OF THE AFRC FIGHTING FORCE

A. Preliminary Remarks

538. All three Accused are charged with individual criminal responsibility for the crimes alleged in the Indictment pursuant to Article 6(3) of the Statute, which provides that:

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.

It is established in the jurisprudence that one of the requisite elements for a finding of superior responsibility pursuant to Article 6(3) is the existence of a superior-subordinate relationship between the accused and the perpetrator/s of the crime. This requirement has been widely referred to as the ‘effective control test’.[1063]
539. The doctrine of effective control was traditionally applied to commanders in regular armies, which tend to be highly structured and disciplined forces. The AFRC was less trained, resourced, organised and staffed than a regular army. However, it mimicked one.[1064] It was largely composed of former government soldiers. As will be seen below, it had a command structure, although this underwent change as the authority of key personalities, including RUF commanders when the two groups worked together, waxed and waned. Rules and systems facilitating the exercise of control existed, yet these rules and systems were legitimated not by law but by the authority of the individual commanders. The commanders were not ultimately accountable to any individual or body external to the AFRC, as it existed independently of any State structure.


 

540. This does not mean that individual AFRC commanders were necessarily less effective in their control of their subordinates. The three Accused were senior members of the AFRC and any ability they had to control their subordinates would have been derived at least in part by virtue of their positions within this organisation. As a result, the Trial Chamber is of the view that analysing the structure of the AFRC is necessary in determining whether the three Accused are liable as superiors pursuant to Article 6(3). The Trial Chamber will examine the evidence relevant to this question below, without predetermining the individual criminal responsibility of the three Accused, the Trial Chamber’s findings on which are set out elsewhere in this Judgement.[1065]


 

B. Submissions of the Parties

541. The Prosecution submits that the AFRC faction was a military organisation with effective command and control in the context of the Sierra Leone war. It contends that although the AFRC was not a perfect military organisation, it was nonetheless a military organisation with a clearly recognisable military hierarchy and structure upon which a strong command capability was based. The AFRC, it is alleged, had the functional characteristics of a military organisation, and it had internal coherence as a military organisation.[1066] According to the Prosecution, the AFRC as a military organisation was probably the most ‘effective’ one in Sierra Leone prior to the 6 January 1999 invasion.[1067]

542. The Defence jointly submit that the history of the SLA prior to May 1997 shows a total breakdown of military organisation and as the AFRC faction consisted mostly of former members of this dysfunctional SLA, it too had only the semblance of a military structure and hierarchy.[1068] The Defence jointly submit that these fundamental military deficiencies form a prima facie basis for the absence of effective command and control within the AFRC faction.[1069]

543. The Defence jointly submit that the AFRC faction was an irregular military force which lacked the strong, clearly defined chain of command and disciplinary system evident in regular armies and that by virtue of this the three Accused did not have the material ability to control their subordinates.[1070] The Kanu Defence argues that forces engaged in guerrilla combat generally do not have a proper disciplinary system and chain of command and without these features, a commander’s authority remains merely “a powerful influence over an unstructured, intimidating and oppressive force”.[1071]

544. The Kanu Defence also submitted that the Prosecution Military Expert Report lacks probative value since he relied on a selection of the Prosecution witnesses, some of whom were clearly inconsistent with each other.[1072]

C. Military Uniforms

545. In conflicts involving irregular forces or non-formal militaries, international criminal jurisprudence has relied in some cases on distinctive uniforms, patches or insignia worn by personnel to identify groups as military organisations. In the Trial Chamber’s view, the wearing of military uniforms or identifying insignia may also have identified the AFRC as a separate military organisation within the conflict. This is so because the AFRC soldiers were mostly former members of the SLA who retained their military uniforms as long as possible.

546. In the conflict in Sierra Leone it was sometimes difficult for the public to identify with certainty the group responsible for crimes committed in their communities. Many of the witnesses referred to persons wearing combat uniform as ‘soldiers’[1073] and those wearing mixed civilian and combat, often with red headbands, as ‘rebels’.[1074] However, the witnesses’ conclusions were not always accurate, as members of both factions regularly wore civilian clothes or mixed civilian/combat clothes.[1075] Some even wore stolen ECOMOG uniforms.[1076]

547. The Trial Chamber is often able to distinguish actions committed by the various groups during the conflict, as many witnesses were able to identify members of the AFRC/SLA, RUF and CDF that were personally known to them. The use of unique pseudonyms such as ‘Superman’ and ‘Savage’ also facilitated identification of the faction responsible for particular incidents. Even where the witness only knew the participant in the conflict by their ordinary name, the Trial Chamber is often able to infer to which group that participant belonged through other pieces of evidence, such as the location and timing of the relevant incident.

D. Evidentiary Considerations

(a) Military Expert Witnesses

548. Both the Prosecution and the Defence commissioned Military Expert Reports on the structure of the AFRC faction, which were admitted as evidence under Rule 89(c) of the Rules, and both experts gave oral evidence.[1077] Prosecution Military Expert was Colonel Richard Iron, an officer in the British Army currently assigned to NATO. The Defence Military Expert was Major-General Prins of the Royal Netherlands Marine Corps. While both witnesses had impressive military backgrounds,[1078] the Trial Chamber found Colonel Iron to be a more credible expert witness for the following reasons.

549. First, Colonel Iron had more experience in land forces than Major-General Prins, whose experience was mostly naval.[1079] Secondly, Colonel Iron had more operational experience than Major-General Prins.[1080] Thirdly, Major-General Prins visited none of the places or battle sites to which Colonel Iron referred. Fourthly, Colonel Iron’s report was based primarily on interviews with witnesses who appeared before the court, whereas Major-General Prins’ report relied heavily on secondary sources. Fifthly, the primary sources which Major-General Prins did rely on were all high ranking officers, because in his view junior ranked officers have only limited knowledge of matters such as the overall structure of a military organisation.[1081] In the context of the AFRC, the Trial Chamber disagrees. The AFRC coup was a coup by junior ranks and, as a result, the AFRC in the jungle was made up of lower ranking officers. In contrast, Colonel Iron interviewed lower ranking AFRC members who were actually involved in the fighting, although most of his report was based on interviews with only three such individuals.[1082]

550. Moreover, Major-General Prins’ evidence was largely discredited in cross-examination. Throughout cross-examination he was inflexible in shifting from the position taken in his report, even when confronted with new evidence which, had he been aware of it previously, may have altered his findings. For instance, he was reluctant to accept the new evidence of witness TRC-01 and other Defence witnesses which contradicted his own position.[1083]

551. Ultimately, however, the Trial Chamber considers both military expert reports to be of limited use in examining the organisational structure of the AFRC faction. This is firstly because their reports are primarily relevant for only a short temporal and geographic period in the Indictment, as both experts focused on the organisation of the AFRC troops from Colonel Eddie Town to Freetown (November 1998 through January 1999). However, throughout the Indictment period (May 1997 through January 2000), the AFRC underwent significant organisational changes at certain key points and it is therefore erroneous to assume that the structure at one point in time is reflective of the structure throughout the entire period.

552. In addition, the Trial Chamber found the methodology used by the experts of little assistance. Both experts examined the AFRC with a view to determining whether it was a traditional military organisation, using a four pronged test devised by Colonel Iron.[1084]

553. The experts defined a number of structural features of traditional military organisations which, in the Trial Chamber’s view, were present in the AFRC in only a rudimentary form. For example, the experts discussed the importance of the span of command, which refers to the number of units or sub-units at any one level that one person might command.[1085] Colonel Iron explained that the establishment of sub-units at each hierarchical level of command increases the control that each individual commander possesses.[1086] The evidence indicates that AFRC troops were divided into battalions, but the number of battalions varied at different times and the number of men in each battalion appears to have fluctuated.[1087] In a regular army, a “staff” is appointed to assist the commander.[1088] While SAJ Musa established some kind of staff structure at Colonel Eddie Town,[1089] the evidence establishes that the AFRC officers lacked sufficient military training to properly fulfil staff functions.[1090]

554. The experts also considered whether the characteristics typically present in a traditional army were exhibited by the AFRC. The characteristics which they discussed included the intelligence process; communications system; lessons learnt system; recruitment and training; system for promotions and appointments; logistic supply; repair and maintenance of equipment; medical system; pay or reward system for soldiers; religious welfare system and fundraising and finance system.[1091] In the Trial Chamber’s view it is of doubtful value to examine some of these characteristics, since they are inapplicable to most irregular militaries. For instance, instead of a pay or reward system for soldiers, AFRC commander Johnny Paul Koroma announced ‘Operation Pay Yourself’ in February 1998, encouraging soldiers to loot civilian property since the AFRC could not pay them wages.[1092] Other characteristics - intelligence process,[1093] communications system,[1094] lessons learnt system,[1095] recruitment and training[1096] and medical system[1097] – were present in the AFRC only to a limited extent.

555. The Prins Report also examined the SLA prior to May 1997, concluding that it was in a state of disarray when SLA officers staged the coup and established the AFRC.[1098] Evidence was adduced which established that the main cause of this deterioration was the government’s decision in 1992 to rapidly expand the army, as a result of which some ten thousand new soldiers were recruited over four years without adequate background checking or personality profiling.[1099] The level of recruits was poor and the organisation was not capable of training these recruits into effective, disciplined soldiers.[1100] The Trial Chamber accepts that the dysfunctional state of the SLA at the time of the coup in 1997 had a detrimental impact on the future military organisation of the AFRC faction.

556. Both experts ultimately agreed that the AFRC was an irregular military force, that is, not a traditional army.[1101] Neither Colonel Iron nor Major-General Prins are experts in irregular military conflict. However, an irregular force can also be an organised force, and it can act in a structured and co-ordinated way.[1102] The fact that the AFRC was not a traditional army does not per se permit inferences to be drawn regarding the ability of the AFRC commanders to effectively control their men. Insofar as a developed structure exists within an organisation, this is an important indicium of the superior’s ability to exercise effective control and weight must be given to it accordingly. The Trial Chamber therefore considers that the conclusion of the experts’ reports is the starting point for an analysis of the structure of the AFRC.

557. In the Trial Chamber’s view, three of the structural factors which the experts considered are generic features which are critical to facilitating control and may be equally present in irregular armed groups such as the AFRC. These factors are a functioning chain of command, a sufficiently developed planning and orders process,[1103] and a strong disciplinary system[1104]

558. The Trial Chamber will therefore consider the evidence pertaining to each of these three structural features during four separate periods, which correspond with major changes in the AFRC as the troops moved through the different Districts.[1105] These periods are Kono District (14 February 1998 through approximately end April 1998); Bombali District (approximately May 1998 through November 1998); Freetown and Western Area District (January through approximately February 1999); and Port Loko District (approximately February through April 1999).

559. The Trial Chamber recalls that throughout certain periods covered by the Indictment, the AFRC was operating in separate factions in different geographical areas.[1106] The Trial Chamber will only consider the evidence concerning the military organisation of the AFRC factions associated with the Accused – that is, the military organisation of SAJ Musa’s faction during the time he was not accompanied by any of the Accused will not be considered.

560. Given that the AFRC was not a regular army and its organisational structure was somewhat unique, the best evidence on its command structure came from Prosecution and Defence witnesses who were members of the AFRC in the jungle or associated with it. In its findings below, the Trial Chamber therefore relies primarily on the factual witnesses and considers the opinions of the experts where these are deemed of assistance in analysing the witnesses’ testimony.

(b) Factual Witnesses

561. The Trial Chamber notes that the evidence of Prosecution witnesses on the military structure of the AFRC, in particular witnesses TF1-334 and George Johnson, was much more detailed than that of the Defence witnesses. Prosecution witnesses were able to describe a hierarchy with identified positions ascribed to particular commanders, while Defence witnesses tended to state that one individual was the overall commander, another was the deputy and then other individuals were referred to collectively as ‘commanders’.[1107] The Trial Chamber correspondingly placed more weight on the evidence of the Prosecution witnesses as they were able to give an overall view of the dynamics and functioning of the troop.

562. Another factor leading the Trial Chamber to place more weight on the evidence of Prosecution witnesses’ evidence regarding the command structure was that even the lower ranked witnesses had access to the commanders. For instance, Witnesses TF1-334 and TF1-184 were close assistants to senior AFRC commanders.[1108] Witness George Johnson was the Chief Security Officer to the Accused Kamara in Kono District and later a senior commander himself.[1109] These positions required them to remain close to the commanders and gave them the opportunity to regularly observe their interactions. The Trial Chamber observes that this opportunity was heightened by the environment in which the troops functioned. In contrast to a traditional army, the AFRC commanders were generally located together in the one camp and nearly all decisions were taken orally. Witness TF1-334 explained that “[t]he jungle is not like the city. Myself and other immediate soldiers that we are under the other commanders, they were present whenever there was a meeting in which decisions were taken.”[1110]

563. In light of these considerations, the Trial Chamber found the Prosecution witnesses generally more reliable than those of the Defence in arriving at its findings on the military structure of the AFRC.

E. Findings on the Military Structure of the AFRC Fighting Force

(a) Kono District (14 February 1998 through 30 June 1998)

(i) The Chain of Command

564. While the AFRC faction in Kono District was subordinate to RUF command,[1111] the two forces retained separate command structures. Witness George Johnson testified that the AFRC command structure for Kono was decided at a meeting in Koidu Town chaired by RUF commander Denis Mingo, who was the overall commander in the District.[1112] The Accused Kamara, as the senior most AFRC member in Kono District, “automatically” became the commander in charge of the AFRC troops upon the departure of Johnny Paul Koroma.[1113] A known AFRC commander, whose name was given to the Court in closed session, was the Operations Commander, subordinate to Kamara.[1114] The Accused Kamara appointed Colonel Foday Kallay as Deputy Operations Commander.[1115] George Johnson corroborated the existence of a Deputy Operations Commander, but he ascribed this role to RUF commander ‘Rambo’.[1116] Witness TF1-334 testified that ‘Rambo’ was initially an RUF battalion commander, but when Denis Mingo subsequently became the Operations Director for both the RUF and the AFRC, ‘Rambo’ became acting RUF Operations Commander. The Trial Chamber is satisfied that the position of Deputy Operations Commander existed within the AFRC, and it appears that the discrepancy between the testimonies is explicable on the basis that George Johnson failed to recall the changes in position.

565. The AFRC troops were divided into six battalions which also included some RUF soldiers.[1117] Witness TF1-334 testified that the battalion commanders were Captain ‘Junior’, ‘Savage’, Lieutenant Kallay, SLA Lieutenant ‘Mosquito’, Lieutenant ‘Tito’ and Lieutenant Bakarr. Each commander had a soldier appointed as their second in command.[1118] Witness TF1-334 stated that the number of men in a battalion was not stable, as over time men would be added or withdrawn from battalions depending on the changing military threats in each location. He estimated that a battalion could range in size from 55 to 100 men.[1119]

566. Witness TF1-334 testified that the battalion commanders were subordinate to the Operations Commander and reported directly to him.[1120] In addition, the witness named several SLA military supervisors as well as an SLA artillery commander, Lieutenant Lagah, that reported to the Operations Commander.[1121] The Accused Kamara also appointed a Political Adviser, Coachy Borno.[1122]

567. Witness George Johnson testified that the Accused Kamara was the G4 in charge of arms and ammunition, the Accused Kanu was the G5 in charge of civilians and FAT Sesay was the G1 in charge of administration.[1123] Colonel Iron explained that this terminology is a very widely used shorthand, which began as standard NATO and US Army practice, for the various positions in the team which acts as support staff to the commander.[1124]

568. The Trial Chamber notes that the existence of positions according to this NATO terminology was not put to witness TF1-334, whose account of the command structure was otherwise significantly more detailed than that of George Johnson. However, George Johnson was not the only witness to employ the terminology. There is evidence of a G5 and G4 position within the RUF.[1125] The Trial Chamber notes that in one of Johnson’s prior statements, introduced in cross-examination, he stated that the AFRC adopted the NATO system from the RUF.[1126] Other witnesses refer to a G5 position existing in the AFRC structure at various points in time.[1127]

569. The Trial Chamber notes that witnesses who did not use the NATO nomenclature described positions in the same substantive terms, for example, referring to FAT Sesay as the ‘Brigade Administrator’ instead of the G1.[1128] While witness George Johson stated that G2 and G3 positions did not exist in the AFRC,[1129] Colonel Iron testified that the Operations Commander in the AFRC was equivalent to the G3 position.[1130] In light of the occasional use of the terminology by several different witnesses; the apparent existence of some of the staff positions (G1, G4 and G5) but not others (G2 and G3); and the fact that similar positions existed with different names (Brigade Administrator, Operations Commander), the Trial Chamber considers it plausible that the terminology may have been employed by persons who were familiar with its use, while others referred to the same position without the NATO-style title. In this regard, the Trial Chamber recalls that witness TF1-334 was a low ranked soldier, without extensive training, who may well not have been cognisant of the common nomenclature.

570. Accordingly, the Trial Chamber finds that the testimony of George Johnson regarding the existence of staff positions is generally consistent with witness TF1-334’s evidence regarding the command structure.

571. The foregoing evidence establishes that the AFRC faction had an overall commander, who was superior to the Operations Commander, who was superior to the Deputy Operations Commander. Subordinate to the Operations Commander were the military supervisors and six battalion commanders, who were deputised by their ‘2IC’s. The Trial Chamber therefore finds that the AFRC faction in Kono District had a chain of command.

(ii) Planning and Orders Process

572. The evidence adduced does not provide substantial detail on the processes by which orders were given and operations planned within the AFRC faction. Witness TF1-334 testified that the Accused Kamara gave orders through the Operations Commander.[1131] It appears from the available evidence, in particular that of Defence witnesses present throughout this period,[1132] that much of the planning and decision making may have been the prerogative of the RUF. Witness TF1-334 stated that whenever an operation took place, ‘Superman’ would call ‘Bazzy’ and the AFRC commanders to his residence and they would listen to whatever he told them.[1133] The two factions participated in a number of joint operations.[1134] One example is the joint attack to Sewafe to destroy a bridge in order to prevent ECOMOG forces advancing to Koidu Town.[1135] In addition, commanders went on patrols and maintained contact with battalion commanders situated in different villages.[1136]

573. In the Trial Chamber’s view, despite the absence of specific evidence detailing the process by which orders were transmitted in the AFRC faction, it is inferable from the fact that operations were successfully coordinated in cooperation with the RUF that a functioning planning and orders process existed. The Trial Chamber finds it unnecessary to determine the extent to which the AFRC commanders were actively involved in high level strategic planning of AFRC/RUF operations, as the mere implementation of orders from the RUF commanders would have required an effective process in place to ensure that these orders reached lower level commanders and troops.

(iii) Disciplinary System

574. The evidence adduced provides no detail on specific rules in place among the AFRC faction in Kono District, nor systems or personnel responsible for enforcing such rules. The Trial Chamber is thus unable to conclude that a disciplinary system existed among the AFRC faction in Kono.

(iv) Conclusion

575. The Trial Chamber accordingly finds that the AFRC faction in Kono District had a functioning chain of command and a planning and orders process.

(b) Koinadugu and Bombali Districts (May 1998-November 1998)

(i) The Chain of Command

576. Witness TF1-334 testified that he attended an open meeting at Mansofinia at which the Accused Brima, in front of all the soldiers, restructured the troops, made promotions and delineated the responsibilities of the various commanders. The Accused Brima promoted himself to Brigadier and announced that he was Chief in Command. He promoted the Accused Kamara to Brigadier and made him Deputy Chief in Command.[1137] The Accused Kanu, who was already a Colonel, was promoted to Chief of Staff.[1138] Witness TF1-334’s superior was the Operations Commander and he reported to the Accused Brima and Kamara.[1139] The Operations Commander’s deputy was Captain ‘Junior Sheriff’.[1140]

577. The troops were divided into four companies, namely Company A, B, C and D. Brima appointed Lieutenant ‘Tito’, Foday Bah Marah, Captain Arthur and ‘Junior Lion’ as the respective commanders for each company.[1141] It is apparent from the witness’ testimony that, as in Kono District, each company also had a ‘2IC’ or second in command.[1142] Military supervisors were appointed for each company and their role was to brief the troops before they left on any operation. The military supervisors worked closely with the Operations Commander, to whom they would report any problems that arose in the company. If the Operations Commander could not resolve the problem, the military supervisors would then take it to the Brigade Commander ‘Gullit’.[1143]

578. Witness TF1-334 testified that there was a chain of command in which the Chief of Command gave orders to the Chief of Staff, who then told the Operations Commander, who then passed on orders to the company commanders. [1144] The witness testified that the military supervisors were inferior to the Chief of Staff and equal in rank but inferior in appointment to the Operations Commander.[1145]

579. Witness TF1-334 also testified about a number of individuals being part of the ‘brigade administration’, which he explained to be the persons responsible for direct command of the brigade. The individuals were ‘Gullit’, Ibrahim ‘Bazzy’ Kamara, ‘Five-Five’, Colonel Woyoh, Colonel Ibrahim Bioh Sesay, Colonel Abdul Sesay and the Operations Commander.[1146] Major FAT Sesay was appointed as Brigade Administrator.[1147] The witness detailed a number of other more minor appointments, including a Brigade Adjutant; Military Police Commander; Brigade Major; Intelligence Officer; Task Force Commander; Brigade Regimental Sergeant Major (“RSM”) and Political Advisor.[1148]

580. The testimony of witness George Johnson corroborates in large part the account of witness TF1-334. He stated that the Accused Brima publicly restructured the troop into four ‘battalions’ at Mansofinia.[1149] He confirmed that the Accused Kamara was second in command and named the same individual as Operations Commander. He states that FAT Sesay was the ‘G1 commander’ in charge of administration, while the ‘G4’ in charge of arms and ammunition was the Accused Kamara and the ‘G5’ in charge of civilian abductees was the Accused Kanu.[1150] The Trial Chamber recalls its discussion of this terminology and reiterates its conclusion that the available evidence does not prove that these positions were additional to those described by witness TF1-334.

581. The Trial Chamber notes that Witness George Johnson testified that the brigade was divided into four ‘battalions’, while witness TF1-334 referred to the creation of four ‘companies’. Witness TF1-334 stated that both battalions and companies are composite units of a brigade, with the difference being that battalions are larger than companies.[1151] On occasion, witness TF1-334 used the two words interchangeably.[1152] He explained that when reinforcements from SAJ Musa joined the troop at Rosos, the companies became battalions by virtue of their increased size.[1153] Colonel Iron refers to this change and opines that ‘this retitling was less to do with size, but more an opportunity to promote the commanders’.[1154] Be that as it may, the Trial Chamber is satisfied that the different terminology used by the witnesses, neither of whom had received substantial military training,[1155] does not affect the substance of their evidence, which the Trial Chamber finds to be reliable.

582. Finally, the witnesses also differ on the point in time at which ‘Junior Lion’ assumed command of the fourth battalion or company. Witness TF1-334 testified that ‘Junior Lion’ was appointed commander of Company D at Mansofinia. However, ‘Junior Lion’ stated that the Accused Brima appointed him Provost-Marshal, in which capacity he was responsible for taking disciplinary action against fighters who disobeyed the laws in place.[1156] He testified that he was appointed commander of the fourth battalion by Brima upon arrival at Rosos.[1157]

583. The Trial Chamber notes that witness George Johnson, in a prior statement to the Court introduced by the Defence in cross-examination, corroborated witness TF1-334’s evidence regarding the identity of the other three commanders but does not state who the fourth commander was.[1158] Further, witness TF1-033 named the same four individuals as company commanders as witness TF1-334. [1159] The Trial Chamber is of the view that witness George Johnson was evasive on occasion with regard to his own role in the conflict and finds that, in addition to being Provost-Marshal, he was also the commander of the fourth company of troops throughout the journey to Rosos.

584. Finally, witness TF1-033 corroborated generally the evidence of witnesses George Johnson and TF1-334, although he stated that the troop restructure occurred at Yaya, from where the troops moved to attack Yiffin.[1160] The Trial Chamber notes that according to Witness TF1-334, the first stop of the troops after Mansofinia was a village called Yayah.[1161] Given that witness TF1-033 omits mention of Mansofinia, the Trial Chamber is of the view that witness TF1-033’s recollection of the location is mistaken. This conclusion is supported by the fact that the witness was also confused in relation to the home town of the Accused Brima, which he stated was the village ‘Yaya’, when in fact it is ‘Yarya’, one of a number of villages the troops passed through on their way to Mansofinia.[1162]

585. The foregoing evidence establishes that the AFRC faction had an overall commander, a deputy commander, a Chief of Staff, who was superior to the Operations Commander, who in turn was superior to the Deputy Operations Commander. Subordinate to the Operations Commander were the military supervisors and four battalion commanders, who were deputised by their ‘2IC’s. In addition, the Brigade, as the troop was collectively known, was supported by numerous individuals in more minor positions. The Trial Chamber therefore finds that the AFRC faction in Bombali District had a well-developed chain of command.

(ii) Planning and Orders Process

586. Witness George Johnson testified that the three Accused were based at headquarters at Rosos with the other senior commanders. The headquarters was in charge of planning all operations and giving military orders.[1163] In the AFRC faction, planning was conducted by the Operations Commander, who would approve his plan through the Commander in Chief.[1164] As Chief of Staff, Kanu’s role was to enforce orders given by Brima, Kamara and the Operations Commander.[1165] There is also evidence of the Operations Commander ordering operations.[1166]

587. Witness TF1-334 described in detail various incidents from which it is evident that an orders process functioned effectively. On one occasion near Mateboi, prior to arriving at Rosos, troops reported an enemy threat at their rear to the Accused Brima. The Accused Brima sent a message to the Operations Commander and the witness to gather troops and report to him. The Operations Commander called on the Deputy Operations Commander, Captain Junior Sheriff. The Accused Brima ordered the Deputy Operations Commander to take the troops, including the witness, to the rear and dislodge the enemy threat.[1167] The operation was completed and the troops reported to Gullit on their return.[1168]

588. On one occasion while at Rosos, the Accused Brima called together the Deputy Brigade Commander ‘Bazzy’, the Chief of Staff ‘Five-Five’, the Operations Commander, the military supervisors and the company commanders and informed them that he wanted the troops to go on an operation to Gbomsamba to prove to the outside world that they were active.[1169] ‘Gullit’ ordered the company commanders to send men to headquarters for this operation. Witness TF1-334 stated that by that evening, all the company commanders and their men had reported to headquarters.[1170] ‘Gullit’ then issued a public order in front of the assembled troops that they should attack Gbomsamba and return with no civilians but with military equipment. He also stated that civilians should be amputated and the town burned down to record their presence there.[1171] The Accused Brima did not go on this operation, but rather the troops were led by Kamara and four other commanders.[1172]

589. The attack on Gbinti while the troops were at Rosos was similarly orchestrated. In the presence of witness TF1-334, ‘Gullit’ ordered the Operations Commander to order the company commanders to report. The company commanders reported to the Operations Commander who then took them to the Accused Brima.[1173] ‘Gullit’, in the presence of ‘Bazzy’, ‘Five-Five’ and the military supervisors, ordered the company commanders to burn down Gbinti using the tactic of pretending to surrender, favoured by SAJ Musa.[1174] The company commanders returned later that evening with their men and ‘Gullit’ addressed them publicly in the field used on such occasions.[1175] After the operation, the soldiers returned to Rosos and reported to the Accused Brima.[1176] This evidence is corroborated by that of witness TF1-033, who also stated that ‘Gullit’ ordered an attack on Gbinti in July 1998 and the troops reported back to him at its completion.[1177]

590. As is apparent from the above evidence, orders were not written, but given orally in briefings.[1178] Orders were usually given to the command group, but it was not unusual for the Accused Brima to brief the entire force.[1179]

591. In the Trial Chamber’s view, the above evidence establishes beyond reasonable doubt that the AFRC faction had a planning and orders process while they were in Bombali District.

(iii) Disciplinary System

592. According to witness TF1-334, the Accused Brima gave a strict warning to the troops at Mansofinia that as they moved onwards throughout Bombali District, the rule applied would be “minus you, plus you”.[1180] The witness stated that this meant that the troop would continue with or without anyone who was disobedient, explaining that “when an order is given and you refuse to obey that order you're declared an enemy. And at that time if you say you were going to retreat to go to the ECOMOG forces, you will be considered an enemy and you'll be killed. So there was no way you could disobey”.[1181]

593. The witness referred to the phrase “minus you, plus you” several times in his evidence, from which the Trial Chamber infers that it was not a one-off warning to the troops, but rather a well-known rule of the Accused Brima.[1182] The Accused Brima denied any knowledge of this phrase.[1183] However, in light of the evidence below, which establishes that a brutal disciplinary system was employed against troops and abducted civilians, the Trial Chamber does not give weight to the evidence of the Accused Brima.

594. Laws existed at Rosos which prohibited the theft of ‘government properties’, meaning arms and ammunition and medical supplies belonging to the troops, and the commission of rapes during operations, as this would distract the troops from the operation. Punishments for disobeying these laws included public flogging and killing.[1184] Upon arrival at Colonel Eddie Town these laws, which had been in existence at Rosos, were written on cards by the Accused Brima and distributed to the various commanders. In addition to the laws prohibiting rape and theft, the witness recalled another law which stipulated that fighters reluctant to go on ambush would be publicly flogged.[1185] This system was known as ‘jungle justice’.[1186]

595. Extensive evidence was adduced on the established system at Rosos which governed relationships between the soldiers and the abducted women.[1187] If soldiers wanted a woman, they had to sign for her beforehand. Any problem with the women was to be reported to the AFRC command. If a soldier abused a woman, and a complaint was made, then the AFRC command could take the woman back.[1188] Witness TF1-033 testified that according to the “jungle justice” rules, any fighter who raped another fighter’s ‘wife’ would be killed. The witness recalled an incident in which Alhaji Kamanda alias ‘Gunboot’ killed a fighter for raping another fighter’s ‘wife’.[1189]

596. The Trial Chamber recalls that a Military Police Commander was appointed at Mansofinia.[1190] While no further evidence was adduced on his functions, the Trial Chamber infers from this fact that a military police force of some type existed within the AFRC faction. In addition, the Provost-Marshal, George Johnson, testified that he was responsible for making sure the soldiers stayed ‘on the right path’ and attacked only designated villages.[1191]

597. Major-General Prins opined that it is unlikely the Provost-Marshal ever functioned properly because there were no trained staff officers who could establish a system to try and punish offenders.[1192] The Trial Chamber agrees that, on the evidence adduced, the AFRC commanders dispensing “jungle justice” were not trained in military law and no formal procedures were in place for trying offenders and determining appropriate penalties. Rather, the system appears to have been fairly arbitrary. ‘Junior Lion’ testified that he ordered the arrest of one of his troops in Colonel Eddie Town on the suspicion that the man had been stealing ammunition. However, a confrontation broke out and so ‘Junior Lion’ simply shot him.[1193]

598. This evidence supports Colonel Iron’s view that the practice of justice in the AFRC faction was based on the whim of the commander: if the commander wanted to exert discipline to control the behaviour of his officers and men, the system was there for him to do it. If he decided not to, then wrongdoings could go unpunished.[1194] ‘Junior Lion’ testified that no discipline was ever imposed for carrying out amputations, for instance, those carried out by ‘Adama Cut Hand’.[1195] The Trial Chamber notes in this regard that the selective application of the disciplinary system did not undermine its effectiveness.

599. The evidence establishes that the AFRC faction had ‘laws’ in place; penalties for disobedience; and individuals responsible for meting out discipline. The Trial Chamber accordingly finds that despite its brutal nature, the AFRC faction in Bombali District had a functioning disciplinary system.

(iv) Conclusion

600. The Trial Chamber finds that a well-developed chain of command, an effective planning and orders process and a functioning disciplinary system existed within the AFRC faction in Bombali District.

(c) Freetown and the Western Area (January 1999)

(i) Chain of Command

601. The Trial Chamber recalls that during the month or so between SAJ Musa’s arrival at Colonel Eddie Town and his death on 23 December 1998 at Benguema, he was the overall commander of the AFRC.[1196] Brima himself testified to a clearly identified hierarchy in this period, established by SAJ Musa at Colonel Eddie Town, with a Deputy Commander, an Operations Commander, four company commanders, a Task Force Commander, an Adjutant and an OC military police.[1197] Most of these appointments correlated to positions in the traditional army.[1198]

602. Prosecution witnesses testified that following the death of SAJ Musa and prior to the advance on Freetown, the Accused Brima restructured the troops. He appointed himself Commander in Chief and promoted himself to Lieutenant-General. The Accused Kamara became second in command, with his rank remaining Brigadier General. Brima promoted the Accused Kanu to Brigadier. He remained Chief of Staff and was third in command.[1199] The battalion commanders were each promoted to colonel.[1200]

603. The Accused Brima created a new position, called the Operations Director. He promoted Colonel Woyoh to Brigadier and appointed him to this position, in which capacity he would be in charge of all operations and report directly to the Chief of Staff.[1201] ‘O-Five’ remained the Operations Commander, to whom the Missions Commander Foyoh reported.[1202] ‘O-Five’ in turn reported to Operations Director Woyoh.[1203] Colonel ‘Junior Sheriff’ remained Deputy Operations Commander.[1204] The Brigade Administrator was FAT Sesay.[1205] This last appointment was corroborated by witness Gibril Massaquoi, who testified that on arrival at State House on 6 January he saw FAT Sesay and was told that he was “Colonel Admin” for the AFRC.[1206]

604. The Accused Brima stated that the battalions were to remain the same as under SAJ Musa. The 1st battalion was commanded by Lieutenant Colonel Tito; the 2nd battalion by Lieutenant Colonel Kallay; the 3rd battalion by Colonel Osman Sesay, alias ‘Changabulanga’; the 4th battalion by Lieutenant Colonel Foday Marah, alias ‘Bulldoze’, the 5th battalion by Colonel Saidu Kambolai, alias ‘Basky’; and the 6th battalion by a commander whose name witness TF1-334 could not recall. In addition, there were two battalions created under SAJ Musa, named the Red Lion Battalion and the RDF Battalion, which were commanded by ‘Med Bajehjeh’ and ‘NPFL’ respectively.[1207] The battalion commanders were to report to the Operations Commander.[1208] The Accused Brima also appointed ‘Colonel Junior Lion’ as Task Force Commander and Colonel Ibrahim, alias ‘Road Block’, as Military Police Commander, both of whom were to report to the Chief of Staff.[1209]

605. The Trial Chamber notes that witnesses DAB-033 and DBK-012, who gave the most detailed testimony regarding the command structure in this period out of the Defence witnesses, corroborated to a large extent the identity of the battalion commanders.[1210]

606. In addition, witness TF1-334 named the various members of the Brigade Administration, which included the three Accused, the Operations Director, the Military Police Commander and the Task Force Commander, as well as the military supervisors, a Brigade Adjutant and a Brigade RSM. Most of these individuals were required to report to the Chief of Staff. A number of other minor appointments were made.[1211] Brima then ordered that the other positions would remain the same as under SAJ Musa, although he promoted several individuals in rank.[1212] He clarified that individuals who reported to SAJ Musa now reported directly to him.[1213]

607. While the Defence witnesses testified that different individuals occupied the senior command positions,[1214] Defence witnesses also testified that there was structure within the troop. Witness DBK-131, a battalion commander during the Freetown invasion, testified that during the advance on Freetown his battalion, and all other battalions, had their own battalion staff as well as three companies.[1215] Companies were divided into platoons and every platoon had four sections.[1216] The witness stated he kept an effective chain of command in his battalion.[1217] Witness DBK-131 said that each battalion had its own structure.[1218]

608. The above evidence establishes that, as it advanced on Freetown, the AFRC had a first, second and third in command, followed by the Operations Director, who was superior to the Operations Commander, who was superior to the Deputy Operations Commander and the Missions Commander. The senior command was supported by the other members of the Brigade Administration. The individual battalion commanders presided over battalions with their own sub-units.

609. The troops captured the seat of government in Freetown, State House, on 6 January 1999. However, ECOMOG recaptured it several days later and the following days saw the AFRC troops in continual retreat throughout eastern Freetown. Colonel Iron’s report notes that the command structure began to break down in Freetown, resulting in the failure of the chain of command, after the capture of State House, since commanders gave orders to soldiers nearest them without using the battalion structure.[1219] This conclusion is supported by the testimony of factual witnesses.

610. Witness TF1-334, who remained mostly with the brigade administration while in Freetown, stated that after the loss of State House, ‘the troops were all scattered, everybody was just about’.[1220] If the commanders needed reinforcements to go on a battle, the witness and his supervisor were forced to move around raising soldiers to go on the mission.[1221] This evidence was corroborated by witness TF1-184, who was ordered by ‘Gullit’ to find manpower to carry out a mission[1222] and witness Gibril Massaquoi, who recalled ‘Five-Five’ issuing a similar order.[1223] George Johnson stated that after the headquarters lost State House, arms and ammunition were nearly finished and were no longer being distributed by the responsible commander, but ‘everybody had his or her own arms and ammunition’.[1224] Witness TF1-184 agreed with Colonel Iron’s conclusion that the battalion structure was no longer operating. He stated that ‘everyone was disorganised’ and ‘everybody was just doing what he want [sic]’.[1225]

611. In light of this evidence, the Trial Chamber is satisfied beyond reasonable doubt that from the death of SAJ Musa until around the time the troops lost control of State House, the AFRC faction had a chain of command. However, the Trial Chamber finds that after the loss of State House, this chain of command was interrupted until the troops regrouped. In the interim, individual commanders gave orders to the troops in their proximity.

(ii) Planning and Orders Process

612. Brima testified to a clearly identified structure of movement on the march to Freetown: the “task force” team in the advance and a “back-up” team as reinforcement leaving Colonel Eddie Town in advance of the rest of the troop.[1226] The rest of the troop would include the “headquarters” team – including family members, a medical team or medical orderly, and the signallers – secured by a company at the rear.[1227] They successfully engaged in major battles, including at Lunsar, Benguema, Hastings and Kossoh Town, where complex military planning and manoeuvres were required.[1228]

613. Witness TF1-334 described operations to Waterloo and York from which it is apparent that there was a planning and orders process. On both occasions, the Accused Brima called one of his subordinate members of the brigade administration and ordered the attack. The subordinate then issued orders to implement the attack. After each operation, the commander of the returning troops reported to the Accused Brima.[1229] The troops conducted several other small operations, the execution of which involved commanders including the Accused Brima issuing orders which were obeyed.[1230]

614. A number of witnesses testified that ‘Gullit’ chaired a meeting of commanders at Orugu village on 4 January 1999 at which he gave the order to attack Freetown.[1231] The Chief of Staff, the Accused Kanu, ran the meeting and reiterated the orders to the troops.[1232] Specifically, the troops were ordered to loot Freetown and burn down the Kissy and Eastern police stations, capture State House, open Pademba Road prison, kill anyone who opposed the troops and abduct civilians in order to attract the attention of the international community.[1233] As discussed in greater detail below, these orders were carried out.[1234]

615. The Trial Chamber considers that the transmission of these orders to the troops and their subsequent implementation, in addition to the smaller operations described immediately above, proves the existence of a functioning planning and orders process within the AFRC faction from Colonel Eddie Town to State House in Freetown.

616. However, it is apparent from the evidence pertaining to the break down in the chain of command that at this point commanders began issuing orders to whomever was nearest to them and willing to listen.[1235] The Trial Chamber accordingly finds that the planning and orders process was also interrupted around the time that the troops lost control of State House.

(iii) Disciplinary System

617. The Trial Chamber recalls that a disciplinary system was in place in Colonel Eddie Town, from where the troops departed towards Freetown.[1236] The structure established by the Accused Brima after the death of SAJ Musa included a Military Police Commander.[1237] There is evidence of the military police at State House receiving civilian complaints regarding the troops’ conduct, but no evidence of any disciplinary action being taken.[1238] There was also a special unit named Task Force whose role it was to ensure that troops did not escape from the front to the rear.[1239] It seems, however, that this unit was ineffective. Colonel Iron testified that the disciplinary system broke down in Freetown and soldiers attempted to slip away to the east to avoid fighting.[1240]

618. Commanders in Freetown responded to the misconduct of their troops with force rather than relying on any formal disciplinary system. For instance, ‘Gullit’ shot one of his commanders, Colonel ‘Road Block’ in the foot at Shankardass.[1241] In a prior written statement introduced in cross-examination, witness TF1-153 stated that if the soldiers did not follow Brima’s commands in Freetown, he would shoot them and he did this many times.[1242] Witness TF1-184 describes one of the commanders throwing a grenade at a soldier accused of stealing money.[1243] When asked in cross-examination about the penalty for disobeying orders, witness TF1-334 reiterated that Brima’s rule was “plus you, minus you”.[1244] The witness explained that this meant “[i]f you fail to obey then if you are lucky they will fire you on the leg. But if you are not lucky...you are killed. Indeed, if you are not fired on the leg, you will have the big task which will be given to you”.[1245]

619. It is clear from this evidence that punishment was meted out for disobedience. While the disciplinary system in Bombali District sanctioned the use of violence by commanders on their subordinates, in contrast, the evidence adduced in relation to Freetown is insufficient to prove that any sort of system was operational. Accordingly, the Trial Chamber is of the view that the evidence is insufficient to make a finding that a disciplinary system existed within the AFRC in Freetown and the Western Area.

(iv) Conclusion

620. In light of the foregoing evidence, the Trial Chamber finds beyond reasonable doubt that the AFRC had a functioning chain of command and an effective planning and orders process throughout the advance on Freetown, until the troops lost control of State House several days after its capture on 6 January 1999. After this point, the chain of command and the planning and orders process was interrupted. The Trial Chamber further finds that the Prosecution has failed to establish beyond reasonable doubt that a disciplinary system was in place within the AFRC in Freetown and the Western Area.

(d) Port Loko District (February through April 1999)

621. Following the retreat from Freetown, the three Accused regrouped with their troops at Benguema in the Western Area.[1246] They then moved to Waterloo where, together with the RUF, they planned a second attack on Freetown.[1247] The attack was unsuccessful.[1248]

622. Subsequently, in Lunsar in early April, infighting broke out between Issa Sesay and Denis Mingo of the RUF.[1249] Mingo contacted the Accused Brima and requested his assistance. As a result, the Accused Brima and Kanu, as well as ‘O-Five’ and others then travelled to Masiaka and Makeni in Bombali District.[1250] Witness TF1-153 corroborates evidence that the Accused Brima and Kanu separated from the Accused Kamara, stating that Brima and Kanu went to Masiaka, while Kamara went to the Westside because he was ‘disgruntled’ and did not want to assist the RUF.[1251]

623. Around this time, the Accused Kamara was based with some troops in the area around Mile 38. These troops were pushed back by ECOMOG to Mamamah and from there to Gberibana, an area in Port Loko District colloquially known as the ‘West Side’.[1252]

624. There was no evidence adduced on the structure of the AFRC troops who accompanied the Accused Brima and Kanu to fight with the RUF. The Trial Chamber will therefore focus solely on the structure of the AFRC faction associated with the Accused Kamara in Port Loko District.

(i) Chain of Command

625. The evidence shows that early April 1999, the Accused Kamara called a meeting, attended by witnesses TF1-334 and George Johnson, as well as other commanders, at which he created a new command structure for the AFRC troops in the ‘West Side’.[1253] ‘Bazzy’ appointed himself the Chief Commander. A known AFRC member was appointed second in command and Director of Operations.[1254] Ibrahim Bioh Sesay was third in command. ‘Junior Lion’ was promoted to Lieutenant-Colonel and appointed the Operations Commander, in which position he was subordinate to the Operations Director. ‘Colonel Tito’ was ‘Camp Commandant’ and ‘Bio’ was appointed medical officer.[1255] The Accused Kamara structured the troops into three battalions and appointed battalion commanders.[1256]

626. The Trial Chamber notes that Defence witnesses testified that different known AFRC commanders occupied the senior command positions in Port Loko District. Critically, however, the testimony of these witnesses supports the conclusion that there was a structure in place.[1257]

627. The Trial Chamber finds that there was a basic chain of command within the AFRC faction in Port Loko District.

(ii) Planning and Orders Process

628. Witness George Johnson testified that in the West Side, the Operations Commander and the Operations Director planned operations together and both reported to the Accused Kamara. In his position as Operations Commander, he went on all operations personally or sent one of his subordinates to go on his behalf. [1258]

629. There was relatively little evidence adduced on the day-to-day functioning of the troops in the West Side. Witness George Johnson testified that a meeting that was held to plan a major attack on Port Loko to capture arms and ammunition from the Malian ECOMOG soldiers stationed there.[1259] Among those present were battalion commander Tamba Foyo and his second in command, ‘Sheriff’, as well as battalion commander Stanty aka ‘Cake’.[1260] Kamara selected George Johnson to lead the operation.[1261] The operation was a success and while the troops were returning, Johnson established communication with ‘Bazzy’ who sent ‘Tito’ with some civilians to collect the arms and ammunition. Upon the troops’ return to the West Side, Johnson reported to Kamara.[1262]

630. In the Trial Chamber’s view, the evidence regarding the attack on Port Loko establishes that the AFRC commanders employed an effective planning and order process in their operations in Port Loko District.

(iii) Disciplinary System

631. The evidence adduced establishes that the Accused Kamara imposed disciplinary measures on his troops. Witness TF1-334 testified about an incident involving one of the commanders, Lieutenant Kallay. According to the witness, Kallay went on an operation to Gberi Junction and returned with stolen items. ‘Bazzy’ ordered an investigation and it was discovered that Kallay had not attacked Gberi Junction as instructed but had gone looting instead. ‘Bazzy’ ordered that Lieutenant Kallay should be beaten as punishment and in the presence of the witness, Lieutenant Kallay was given 24 ‘lashes’.[1263]

632. However, there is no evidence that specific positions, such as Military Police Commander or Provost-Marshal, existed for the enforcement of discipline. It also appears that there were no defined rules governing the soldiers’ conduct. Witness George Johnson testified that “[o]n arrival at Gberibana there were not laws that were placed. No laws were given by the senior commander. There were no laws that were given to fighters at Gberibana like us, Mansofinia to Camp Rosos”.[1264]

633. Johnson testified that on another occasion, he reported misbehaviour on the part of one of the troops and the Accused Kamara did nothing in response.[1265] It is therefore clear from the evidence that the imposition of discipline was solely at the discretion of Kamara and there was no established system that governed incidences of misconduct.

634. In the Trial Chamber’s view, the AFRC faction did not have a disciplinary system in Port Loko District.

(iv) Conclusion

635. In light of the foregoing evidence, the Trial Chamber finds that the AFRC faction in Port Loko District had a basic chain of command and a planning and orders process effective for its needs. The Trial Chamber further finds that the AFRC faction did not have an established disciplinary system.

IX. APPLICABLE LAW

A. Introduction

636. Article 1(1) of the Statute empowers the Special Court 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.

It is not in dispute between the Parties that the offences alleged in the Indictment fall within the requirements of time and place prescribed by Article 1.

637. Rule 72bis of the Rules provides that the applicable laws of the Special Court include

(i) the Statute, the Agreement[1266], and the Rules;

(ii) where appropriate, other applicable treaties and the principles and rules of international customary law;

(iii) general principles of law derived from national laws or legal systems of the world, including, as appropriate, the national laws of the Republic of Sierra Leone, provided that those principles are not inconsistent with the Statute, the Agreement, and with international customary law and internationally recognised norms and standards.

638. The crimes over which the Special Court has jurisdiction are specified in Articles 2, 3, 4, and 5 of the Statute. In the instant case, only Articles 2, 3 and 4 of the Statute, which deal with crimes under international law, are relevant. Regarding such crimes, the Secretary-General of the United Nations (“Secretary-General”) in his “Report on the Establishment of a Special Court for Sierra Leone” noted that

In recognition of the principle of legality, in particular nullum crimen sine lege, and the prohibition on retroactive criminal legislation, the international crimes enumerated, are crimes considered to have the character of customary international law at the time of the alleged commission of the crime.[1267]

639. The Trial Chamber is entirely in agreement with that statement and recognizes that the elements of the crimes charged in the Indictment are to be interpreted in accordance with customary international law.[1268] Since the ICTY and ICTR also apply customary international law, the Special Court will, where appropriate, be guided by decisions of those tribunals for their persuasive value[1269], with necessary modifications and adaptations in view of the particular circumstances of the Special Court.[1270]

B. The ‘Greatest Responsibility Requirement’

640. As mentioned above, Article 1(1) of the Statute empowers the Special Court to prosecute “persons who bear the greatest responsibility” for the crimes over which it has jurisdiction. The Special Court consists of 3 organs: the Chambers, the Prosecutor and the Registry.[1271] Pursuant to Article 15(1) of the Statute, the Prosecutor is the organ responsible for prosecuting the persons mentioned in Article 1(1). Article 15(1) provides:

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.


 

1. Jurisdictional Requirement or Prosecutorial Discretion

641. The question of whether the reference to ‘persons who bear the greatest responsibility’ creates a jurisdictional requirement rather than a prosecutorial discretion is a subject of dispute between the parties.

(a) Submissions

642. At the close of the Prosecution case, the Prosecution disputed that the qualification of the ‘greatest responsibility requirement’ was a jurisdictional requirement.[1272] In its Final Brief, the Prosecution submits that “the evidence establishes that the three Accused were all senior members of the AFRC holding leadership positions within that organisation. As such, they participated in the crimes set out in the Indictment. There can therefore be no doubt that the three Accused are in actuality persons bearing the greatest responsibility for the acts charged.”[1273]

643. The Prosecution further explained its position in its closing argument. It submits that in order to convict an accused it is not necessary to prove that he was one of those bearing the greatest responsibility. That is because the determination of who bears the greatest responsibility is a discretion that is exercised by the Prosecutor based on investigations and evidence gathered, together with sound professional judgement. Such a discretion could not, for example, be exercised by the designated judge who approves the indictment, because the designated judge would not have before him or her all of the evidence gathered by the Prosecution. The Prosecution concedes that this discretion might be reviewable in extreme cases, such as abuse of process, but excepting that kind of review, the discretion is one that falls to the Prosecutor. The Prosecution points out that it would be ‘inconceivable’ for a long and expensive trial to proceed to its end and for the Trial Chamber to then conclude that serious crimes have been proved beyond reasonable doubt, but that the accused should be acquitted because it has not been shown that they were among those bearing the greatest responsibility. As an alternative, the Prosecution submits that even if this were a matter that the Trial Chamber could look at, the Accused in this case clearly do fall within the category of ‘persons who bear the greatest responsibility’[1274].

644. Both the Kanu and Kamara Defence submit that the ‘greatest responsibility requirement’ should be understood to be a jurisdictional requirement.[1275]

645. The Kanu Defence adopts the finding of Trial Chamber I, which held 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.[1276]

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.[1277]

646. On this basis, the Kanu Defence submits that the Prosecution has not satisfied its burden of establishing that Kanu was part of the group characterised as “at a minimum, political and military leaders and implies an even broader range of individuals.”[1278] The Kanu Defence thereby submits that the Trial Chamber should either find that it does not have jurisdiction over Kanu, or that Kanu should be acquitted on the basis that the Prosecution has not met the evidentiary threshold of ‘greatest responsibility’.[1279]

647. The Kamara Defence submits that, although the Prosecution has a wider discretion to investigate and prosecute persons who bear the greatest responsibility, the Court has “the ultimate decision of determining, based on available evidence at the end of the trial, whether the Prosecution in fact satisfied that threshold requirement of selecting the three Accused among many senior military officers in the AFRC government and ‘faction’, as bearing that utmost liability.”[1280]

648. According to the Kamara Defence, the ‘greatest responsibility requirement’ is within the exercise of the Prosecution’s discretion under the control of the Trial Chamber. The Kamara Defence submits that the Trial Chamber’s role, at this stage of the proceedings, is “to determine the selective application, prudent use and evidential efficacy” of the Prosecution’s exercise of discretion and strategy.[1281] It concludes that Kamara does not, either legally or factually, qualify as one of those who bear the ‘greatest responsibility’.[1282]

649. The Brima Defence does not make any legal submission as to the nature of ‘the greatest responsibility requirement’. As to the scope of this requirement, it submits that it covers only ‘political or military leaders’ and under no circumstance can it stretch to include low ranking military personnel such as Brima.[1283]

(b) Findings

650. The Special Court was established by an agreement between the United Nations and the Government of Sierra Leone and is therefore treaty-based, unlike the ICTY and ICTR, which were established by resolution of the Security Council.[1284] It is a well established principle of international law, codified in the “Vienna Convention on the Law of Treaties” of 23 May 1969, that “a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.”[1285] In interpreting the meaning of ‘the greatest responsibility requirement’, it is helpful to look at the drafting history of Article 1 of the Statute.

651. When, initially, the United Nations Security Council (“Security Council”) made recommendations as to the ‘personal jurisdiction’ of the Special Court,[1286] the United Nations Secretary General (“Secretary General”) saw the personal requirement, which he suggested should be ‘those most responsible’, not as “a test criterion or a distinct jurisdictional threshold, but as a guidance to the Prosecutor in the adoption of a prosecution strategy and in making decisions to prosecute in individual cases.”[1287] The Security Council maintained its view that the personal jurisdiction of the Special Court should be restricted, and rejected the ‘most responsible’ formulation in favour of the ‘greatest responsibility’ formulation.[1288]

652. Finally, the intentions of the Secretary General, the Security Council and the Government of Sierra Leone coincided in three stages. First, the Secretary General acknowledged that while “the determination of the meaning of the term ‘persons who bear the greatest responsibility’ in any given case falls initially to the prosecutor”, it is ultimately a matter for the Special Court itself.[1289] The President of the Security Council then confirmed that

[t]he 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.[1290]

Thereafter, the Government of Sierra Leone accepted this position.[1291]

653. In the opinion of the Trial Chamber, the intent of the drafters of the Statute clearly emanates from the aforementioned extracts. The ‘greatest responsibility requirement’ (initially ‘the requirement of those most responsible’) solely purports to streamline the focus of prosecutorial strategy. The Trial Chamber, with the greatest respect, does not agree with the finding of Trial Chamber I in the ‘CDF Decision on Lack of Personal Jurisdiction’ referred to earlier 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.”[1292] The Trial Chamber cannot accept the idea that the drafters of the Statute purported to make ‘the greatest responsibility requirement’ a jurisdictional threshold which, if not met, would oblige a Trial Chamber to dismiss the case without considering the merits.

654. Article 15 of the Statute vests the Prosecutor with responsibility “for the investigation and prosecution of persons who bear the greatest responsibility for serious violations of international humanitarian law [...]”. In doing so, the Prosecutor shall “act independently as a separate organ of the Special Court”. The Trial Chamber is therefore not called upon to review the prosecutorial discretion in bringing a case against the Accused, nor would it be in a position to do so. Therefore, no issue arises for the Trial Chamber’s determination as to whether, within the meaning of Article 1 of the Statute, the Accused in the present case bear the ‘greatest responsibility’ for the crimes alleged against them.

2. Scope of “the greatest responsibility requirement’

655. Although it is not necessary to do so, the Trial Chamber will nevertheless examine the scope the drafters purported to give to Article 1 of the Statute, when the initial ‘most responsible’ requirement developed into a ‘greatest responsibility’ requirement.

656. While the Security Council recommended ‘the greatest responsibility requirement’ from the start of the discussions on the Statute, the Secretary General first preferred the requirement of ‘persons most responsible’, understood to

include the political and military leadership, others in command authority down the chain of command may also be regarded ‘most responsible’ judging by the severity of the crime or its massive scale. ‘Most responsible’, therefore, denotes both a leadership or authority position of the accused, and a sense of gravity, seriousness or massive scale of the crime.[1293]

657. The Security Council maintained its position that ‘the greatest responsibility requirement’ limited the “focus of the Special Court to those who played a leadership role”.[1294] Acknowledging the choice of the ‘greatest responsibility requirement’, the Secretary General subsequently expressed the view that Article 1 of the Statute was not limited to political and military leaders only. The Security Council, and later the Government of Sierra Leone, concurred with this approach.[1295]

658. The Trial Chamber notes that in light of the foregoing that the ‘greatest responsibility’ requirement necessarily was intended to restrict the number of accused to appear before the Special Court to a small category of individuals. Yet, the Statute needs to be read in its totality. Indeed, Article 7 of the Statute provides for the jurisdiction of the Special Court over alleged perpetrators between the age of 15 and 18 years.[1296] ‘The greatest responsibility requirement’ set out in Article 1 must therefore be interpreted in a manner broad enough to include such alleged perpetrators.

659. It is the Trial Chamber’s view that ‘the greatest responsibility requirement’ could potentially apply to an array of individuals ranging from military and political leaders down to individuals as young as 15 years of age.

C. Law on the Charges

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

660. The Prosecution alleges that the Accused committed the crimes set forth in paragraphs 42 to 79 of the Indictment, and charged in Counts 3 to 14, “as part of a campaign to terrorise the civilian population of the Republic of Sierra Leone, and [which] did terrorise that population.” Count 1 thus charges the Accused with acts of terrorism, a violation of Common Article 3 and Additional Protocol II, punishable under Article 3(d) of the Statute.[1297]

661. Article 3(d) of the Statute, which is the verbatim reproduction of Article 4(2)(d) of Additional Protocol II, prohibits acts of terrorism. The latter provision is tied to Article 13(2) of Additional Protocol II, which provides that “[a]cts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited.”

662. The prohibition and criminalisation of the intentional use of ‘terror violence’ in armed conflict against a civilian population for strategic purposes is well settled in customary international law.[1298] Such prohibition was first explicitly evoked after the First World War, when a deliberate use of a “system of general terrorisation” of the population to secure control of a region was found to be contrary to the rules of civilised warfare.[1299] Later, the prohibition of terror as a means of warfare was gradually introduced in a number of international conventions as well as in domestic military manuals.[1300]

663. Terror against a civilian population was first referred to as a war crime in a report published in 1919 by the Commission of Responsibilities.[1301] While ‘terrorism’ was not explicitly criminalised by the Nuremberg Charter, evidence of terror violence was considered in the context of murder and mistreatment of the civilian population under Article 6 of the Nuremberg Charter.[1302] Further, post World War II domestic tribunals incorporated the crimes of ‘systematic terrorism’[1303] and ‘systematic terror’[1304] in their statutes. Finally, provisions criminalising terror against the civilian population as a method of warfare were incorporated into numerous domestic legislations.[1305]

664. In the wake of the Second World War, Article 33 of Geneva Convention IV was adopted. It provides that “all measures of intimidation or of terrorism are prohibited.” As Article 33 is applicable only to persons in the hands of a party to the conflict, it was subsequently complemented by Article 51(2) of Additional Protocol I and Articles 4(2)(d) and 13(2) of Additional Protocol II, to include acts of terrorism committed against the civilian population in international and internal armed conflict, respectively.

665. A provision prohibiting acts of terrorism can be found in Article 4(2) of the ICTR Statute.[1306] Although not expressly included in the ICTY Statute, the infliction of terror upon the civilian population has been adjudicated in a number of cases before that Tribunal.[1307]

666. In light of the foregoing, the Trial Chamber finds that customary international law imposed individual criminal liability for violations of the prohibition of terror against the civilian population at the time relevant to the Indictment.

(a) Elements of the Crime

667. In addition to the chapeau requirements of Violations of Article 3 Common to the Geneva Conventions and of Additional Protocol II pursuant to Article 3 of the Statute, the Trial Chamber adopts the following elements of the crime of acts of terrorism:

  1. Acts or threats of violence directed against persons or their property;
  2. The perpetrator wilfully made persons or their property the object of those acts and threats of violence; and
  3. The acts or threats of violence were committed with the primary purpose of spreading terror among those persons.[1308]

668. The ICTY Appeals Chamber in the Galić case provided further clarification as to these elements of the crime. With regard to the actus reus, it held that

the crime of acts or threats of violence the primary purpose of which is to spread terror among the civilian population can comprise attacks or threats of attacks against the civilian population. The acts or threats of violence constitutive of the crime of terror shall not however be limited to direct attacks against civilians or threats thereof but may include indiscriminate or disproportionate attacks or threats thereof. [...] Further, the crime of acts or threats of violence the primary purpose of which it to spread terror among the civilian population is [...] rather a case of “extensive trauma and psychological damage” being caused by “attacks which were designed to keep the inhabitants in a constant state of terror.” Such extensive trauma and psychological damage form part of the acts or threats of violence.[1309]

669. Actual terrorisation of the civilian population is not an element of the crime. The requisite mens rea is composed of the specific intent to spread terror among the civilian population. In the words of the ICTY Appeals Chamber,

[t]he fact that other purposes may have coexisted simultaneously with the purpose of spreading terror among the civilian population would not disprove this charge, provided that the intent to spread terror among the civilian population was principal among the aims. Such intent can be inferred from the circumstances of the acts or threats, that is from their nature, manner, timing and duration.[1310]

670. The Kanu Defence argues that the crime of acts of terrorism does not encompass acts or threats of violence targeted at protected property but only protected persons.[1311] While the Trial Chamber agrees that it is not the property as such which forms the object of protection from acts of terrorism, the destruction of people’s homes or means of livelihood and, in turn, their means of survival, will operate to instil fear and terror. The attacks on, or destruction of, propery thus plays an important role in defining the contours of this crime. What places acts of terrorism apart from other crimes directed against property is the specific intent to spread terror among the population. The acts or threats of violence committed in furtherance of such a purpose are innumerable and may well encompass attacks on property through which the perpetrators intend to terrorise the population.[1312]

671. Therefore, this Trial Chamber endorses the finding of Trial Chamber I that the ambit of acts of terrorism “extends beyond acts or threats of violence committed against protected persons to ‘acts directed against installations which would cause victims terror as a side-effect.’”[1313]

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

672. The Indictment alleges that the Accused committed the crimes set forth in paragraphs 42 to 79 of the Indictment, and charged in Counts 3 to 14, “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.” Count 2 thus charges the Accused with collective punishments, a violation of Common Article 3 and of Additional Protocol II, punishable under Article 3(b) of the Statute.[1314]

673. Article 3(b) of the Statute, which is based on Article 4(2)(b) of Additional Protocol II, prohibits collective punishments. The notion of ‘collective punishments’ goes back to Article 50 of the 1899 Hague Regulations, according to which “[n]o general penalty, pecuniary or otherwise, can be inflicted on the population on account of the acts of individuals for which it cannot be regarded as collectively responsible.”[1315] This prohibition was later incorporated in Article 33(1) of Geneva Convention IV,[1316] Article 75(2)(d) of Additional Protocol I and Article 4(2)(b) of Additional Protocol II. It is now firmly enshrined in a variety of international documents[1317] and in domestic military legislations.[1318]

674. Upon the inception of the Special Court, the United Nations Secretary General (“Secretary General”) declared that “[v]iolations of common Article 3 of the Geneva Conventions and of Article 4 of Additional Protocol II thereto committed in an armed conflict not of an international character have long been considered customary international law, and in particular since the establishment of the two International Tribunals, have been recognised as customarily entailing the individual criminal responsibility of the accused.”[1319]

675. In light of the foregoing, the Trial Chamber finds that at the time relevant to the Indictment, customary international law imposed individual criminal liability for the crime of collective punishments, as a violation of Common Article 3 and of Additional Protocol II.

(a) Elements of the Crime

676. In addition to the chapeau requirements of Violations of Article 3 Common to the Geneva Conventions and of Additional Protocol II pursuant to Article 3 of the Statute, the Trial Chamber adopts the following elements of the crime of collective punishments:

  1. A punishment imposed indiscriminately and collectively upon persons for acts that they have not committed; and
  2. The intent on the part of the perpetrator to indiscriminately and collectively punish the persons for acts which form the subject of the punishment.[1320]

677. In respect of the first element, The Kanu Defence submits that the Prosecution is obliged to lead evidence that the punishment was imposed for acts which the victims did not in actual fact commit.[1321] In contrast, the Prosecution argues that “[c]ivilian victims were punished arbitrarily by the AFRC because part of the population was, in the AFRC’s view, supposedly failing to support them” and that “the punishments inflicted in the present instance are equally unlawful when committed against civilians who might have indeed resisted against the AFRC/RUF.”[1322]

678. The prohibition of collective punishments in international humanitarian law is based on one of the most basic tenets of criminal law, the principle of individual responsibility. This principle affirms that responsibility is personal in nature and that no one may be punished for an act he or she has not personally committed.[1323]

679. Article 3 of the Statute is a reproduction of Article 4(2) of Additional Protocol II (which includes ‘collective punishments’ – Article 4(2)(b) - among its fundamental guarantees). Article 4(2)(b) of Additional Protocol II is based on Article 33 of the Fourth Geneva Convention, which provides that: “No protected person may be punished for an offence he or she has not personally committed. Collective penalties and likewise all measures of intimidation or of terrorism are prohibited.” Thus punishments imposed upon protected persons who are not individually responsible for the act which forms the object of the punishment are absolutely prohibited.

680. The first element mentioned above concerns punishments which are not based on individual responsibility but which are inflicted upon persons by wrongfully ascribing collective guilt to them. Such punishments are imposed upon persons for acts which they may or may not have committed. In other words, the punishments are imposed indiscriminately without establishing individual responsibility through some semblance of due process and without any real attempt to identify the perpetrators, if any. It is in this context that the first element is understood to mean: “A punishment imposed upon protected persons for acts that they have not committed.” The Trial Chamber therefore rejects the submission of the Kanu Defence that the Prosecution is obliged to prove that the victims of the punishment did not actually commit the acts for which they were punished.

681. The Trial Chamber further notes that this crime covers an extensive range of possible ‘punishments’.[1324] The ICRC Commentary of Article 75.2(d) of Additional Protocol I advocates an extensive interpretation of the crime of collective punishments, to include

not only penalties imposed in the normal judicial process, but also any other kind of sanction (such as confiscation of property) [...]. [I]t is based on the intention to give the rule the widest possible scope, and to avoid any risk of a restrictive interpretation.[1325]

3. Counts 3, 4 and 5: Unlawful Killings

682. In Count 3, the Prosecution charges the Accused with extermination as a crime against humanity, punishable under Article 2(b) of the Statute. In addition, or in the alternative, Count 4 charges the Accused with murder, a crime against humanity, punishable under Article 2(a) of the Statute. In addition, or in the alternative, Count 5 charges the Accused with 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.[1326]

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

683. 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.”[1327] 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.[1328] However, knowledge of a “vast scheme of collective murder” is not an element required for extermination.[1329] Unlike the crime of Genocide, the crime of Extermination does not require a discriminatory intent.[1330]

684. In addition to the chapeau requirements of Crimes against Humanity pursuant to Article 2 of the Statute, the Trial Chamber adopts the following elements of the crime of extermination:

  1. 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; and
  2. The killing or destruction constituted part of a mass killing of members of a civilian population.[1331]

685. With regard to the actus reus of extermination, it must be demonstrated that a large number of individuals were killed. The accused’s participation may be remote or indirect, and include conduct which creates conditions provoking the victim’s death and ultimately mass killings, such as the deprivation of food and medicine, calculated to cause the destruction of part of the population.[1332] Further, the Prosecution is not required to establish that the accused had de facto control over a large number of individuals because of his position of authority.[1333]

686. The requisite scale of killings for extermination has been described as ‘vast’, ‘massive’ or ‘large’.[1334] In this context, the Kanu Defence submits that the Prosecution carries the burden of establishing that ‘mass’ killings occurred.[1335] The Trial Chamber notes that, although most cases from the Second World War employed the term of ‘extermination’ to address thousands of killings,[1336] no minimum number of victims is required as long as it is a numerically significant part of any given population.[1337] Furthermore, the element of massiveness required for a finding of extermination may result from an aggregate of all killing incidents charged in an indictment. It is not required that the mass murder occur in a concentrated manner and over a short period.[1338]

687. The mens rea for extermination clearly reflects the actus reus, in so far that the Prosecution is required establish the intent either to kill on a large scale or to systematically subject a large number of individuals to living conditions which would, more likely than not, result in their death.[1339] Consistent with the approach that a numerical minimum does not exist to establish the actus reus of extermination, there is no further requirement of an intent to kill a certain number of individuals.[1340]

(b) Count 4 (Article 2(a) of the Statute) and Count 5 (Article 3(a) of the Statute): Murder

688. Murder is charged under Article 2(a) of the Statute (Count 4 - Crime against Humanity) and Article 3(a) of the Statute (Count 5 - Violation of Article 3 Common to the Geneva Conventions and of Additional Protocol II). The Trial Chamber observes that the elements defining murder are identical regardless of the provision under which it is charged.[1341] Thus, in addition to the chapeau requirements of Crimes against Humanity pursuant to Article 2 of the Statute (for Count 4) and the chapeau requirements of Violations of Article 3 Common to the Geneva Conventions and of Additional Protocol II pursuant to Article 3 of the Statute (for Count 5), the Trial Chamber adopts the following elements of the crime of murder:

  1. The perpetrator by his acts or omission caused the death of a person or persons; and
  2. The perpetrator had the intention to kill or to cause serious bodily harm in the reasonable knowledge that it would likely result in death.[1342]

689. For the actus reus of murder to be satisfied, the Prosecution is required to establish beyond reasonable doubt that the perpetrator’s conduct substantially contributed to the death of the person.[1343] This does not necessarily require proof that the dead body of that person has been recovered.[1344] The death of the victim may be demonstrated through circumstantial evidence, provided it is the only inference that may reasonably be drawn from the acts or omissions of the perpetrator.[1345] Such circumstantial evidence may include factors such as proof of incidents of mistreatment against the alleged victim, pattern of mistreatment and disappearances of individuals in the location in question, general climate of lawlessness, length of time which has elapsed since the person disappeared and the fact that the alleged victim has not been in contact with others whom he would have been expected to contact.[1346]

690. The mens rea required for murder is intent to kill or cause serious bodily harm in the reasonable knowledge that it would likely result in death. Premeditation is not a mens rea requirement.[1347]

4. Counts 6, 7, 8 and 9: Sexual Crimes

691. In Count 6, the Prosecution charges the Accused with rape, a crime against humanity, punishable under Article 2(g) of the Statute. Count 7 charges the Accused with “sexual slavery and any other form of sexual violence”, a crime against humanity, punishable under Article 2(g) of the Statue. In Count 8, the Prosecution charges the Accused with other inhumane acts, a crime against humanity, punishable under Article 2(i) of the Statute. In addition, or in the alternative, Count 9 charges the Accused with outrages upon personal dignity, a violation of Common Article 3 and of Additional Protocol II, punishable under Article 3(e) of the Statute.[1348]

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

692. The prohibition of the crime of rape in armed conflict is firmly enshrined in customary international law.[1349] Rape was proscribed as a crime against humanity in the Allied Control Council Law No. 10 and prosecuted as ‘inhuman acts’ before the Tokyo Tribunal.[1350] Rape as a crime against humanity is found in the statutes of the ICTY, the ICTR and the ICC[1351] and has been defined largely through the jurisprudence of the ICTY and the ICTR.[1352]

693. In addition to the chapeau requirements of Crimes against Humanity pursuant to Article 2 of the Statute, the Trial Chamber adopts the following elements of the crime of rape:

  1. The non-consensual penetration, however slight, of the vagina or anus of the victim by the penis of the perpetrator or by any other object used by the perpetrator, or of the mouth of the victim by the penis of the perpetrator; and
  2. The intent to effect this sexual penetration, and the knowledge that it occurs without the consent of the victim.[1353]

694. Consent of the victim must be given voluntarily, as a result of the victim’s free will, assessed in the context of the surrounding circumstances.[1354] Force 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.[1355] This is necessarily a contextual assessment. However, in situations of armed conflict or detention, coercion is almost universal. ‘Continuous resistance’ by the victim, and physical force, or even threat of force by the perpetrator are not required to establish coercion.[1356] Children below the age of 14 cannot give valid consent.[1357]

695. The Trial Chamber acknowledges that the very specific circumstances of an armed conflict where rapes on a large scale are alleged to have occurred, coupled with the social stigma which is borne by victims of rape in certain societies, render the restrictive test set out in the elements of the crime difficult to satisfy. Circumstantial evidence may therefore be used to demonstrate the actus reus of rape.[1358]

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

696. As detailed above in Chapter II, Defects in the Indictment, Count 7 is duplicitous and has been struck out.[1359]

(c) Count 8: Other Inhumane Acts (Article 2(i) of the Statute)

(i) Elements of the Crime

697. The offence of ‘other inhumane acts’ pursuant to Article 2(i) of the Statute is a residual clause which covers a broad range of underlying acts not explicitly enumerated in Article 2(a) through (h) of the Statute. In light of the exhaustive category of sexual crimes particularised in Article 2(g) of the Statute, the offence of ‘other inhumane acts’, even though residual, must logically be restrictively interpreted as applying only to acts of a non-sexual nature amounting to an affront to human dignity.[1360] Listing the underlying acts exhaustively would only create undesirable opportunities to evade the letter of the prohibition.[1361] The crime of ‘other inhumane acts’ was first inserted in Article 6(c) of the Nuremberg Charter and Article II(1)(i) of Control Council Law No. 10 and its prohibition is well-established in customary international law.[1362]

698. In addition to the chapeau requirements of Crimes against Humanity pursuant to Article 2 of the Statute, the Trial Chamber adopts the following elements of the crime of other inhumane acts:

  1. The perpetrator inflicted great suffering, or serious injury to body or to mental or physical health, by means of an inhumane act;
  2. The act was of a gravity similar to the acts referred to in Article 2(a) to (h) of the Statute; and
  3. The perpetrator was aware of the factual circumstances that established the character of the gravity of the act.[1363]

699. The seriousness of a particular act or omission and the sufficiency of its gravity must be examined on a case-by-case basis, taking into consideration the personal circumstances of the victim including age, sex and health as well as the physical and mental consequences of the conduct.[1364] The act or omission must have a direct and seriously damaging, though not necessarily long-term, effect on the victim.[1365]

700. As regards mens rea, it must be established that the perpetrator had the intent to inflict serious physical suffering, or serious injury to body or to mental or physical health, or to conduct a serious attack on human dignity. This includes situations where the perpetrator knew that his acts or omissions would more likely than not cause serious physical suffering, or serious injury to body or to mental or physical health, or constituted a serious attack on human dignity and nevertheless accepted that risk.[1366]

(ii) Submissions on the alleged crime of ‘forced marriage’

701. The Prosecution submits that ‘forced marriages’ qualify as ‘Other Inhumane Acts’ punishable under Article 2(i) of the Statute and are of similar gravity to existing crimes within the Special Court’s jurisdiction. In its Final Brief, the Prosecution claims that this crime “consists of words or other conduct intended to confer a status of marriage by force or threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power against the victim, or by taking advantage of a coercive environment, with the intention of conferring the status of marriage.”[1367] According to the Prosecution, such acts are distinct from sexual acts, because they force a person into the appearance of marriage by threat or other coercion. Thus, even if forced marriage usually involves sex, it has its own distinctive features and is sufficiently serious to qualify as an inhumane act. The Prosecution submits that sexual slavery does not necessarily amount to forced marriage, in that a sexual slave is not necessarily obliged to pretend that she is the wife of the perpetrator. Similarly, a victim of sexual violence is not necessarily obliged to perform all the tasks attached to a marriage. Thus, says the Prosecution, forced marriage as an “inhumane act” can include sexual violence or slavery, but it involves distinct elements as well. The Prosecution maintains that the question of the status of forced marriage as a crime under customary international law does not arise, since the crime charged is “other inhumane acts”, the customary law status of which is clearly established.

702. The Kanu Defence, by contrast, submits that “forced marriages cannot be qualified as an international crime (against humanity), as it is not of ‘a gravity similar to any other act referred to in Article 2(a) to (h) of the Statute’.”[1368] The Kanu Defence is “of the view that if the conduct described by the Prosecution cannot be categorized as sexual slavery, this conduct will not constitute a crime against humanity. The exercising of force on a woman to enter into a relationship similar to marriage, is not of ‘a gravity similar to any other act referred to in Article 2(a) to (h) of the Statute’ especially in view of the more nuanced and complicated relation between the ‘husband’ and ‘wife’ as discussed in the expert report of Dr. Thorsen.”[1369]

(iii) Findings

703. As described above, the crime of ‘other inhumane acts’ exists as a residual category in order not to unduly restrict the Statute’s application with regard to crimes against humanity.[1370] “Forced marriage” as an ‘other inhumane act’ must therefore involve conduct not otherwise subsumed by other crimes enumerated under Article 2 of the Statute.

704. At the Motion for Acquittal Stage, the Trial Chamber found that there was prima facie evidence of a non-sexual nature relating to the abduction of women and girls forced to submit to ‘marital’ relationships and to perform various conjugal duties.[1371] Having now examined the whole of the evidence in the case, the Trial Chamber by a majority[1372] is not satisfied that the evidence adduced by the Prosecution is capable of establishing the elements of a non-sexual crime of “forced marriage” independent of the crime of sexual slavery under article 2(g) of the Statute.

705. Sexual slavery is a specific form of slavery.[1373] The prohibition against slavery is a customary norm of international law and the establishment of enslavement as a crime against humanity is firmly entrenched.[1374] Thus, slavery for the purpose of sexual abuse is a jus cogens prohibition in the same manner as slavery for the purpose of physical labour.[1375]

706. While sexual slavery is not specifically contained in the statutes of the ICTY or the ICTR, the underlying crimes of enslavement and rape are included in both statutes and have been developed through a significant body of jurisprudence. The accused in the Kunarac case were charged with and convicted of enslavement as a crime against humanity for holding girls in slavery-like conditions for the purpose of sex.[1376]

707. The jurisprudence of the ICTY and the ICTR is reflected in the Rome Statute of the International Criminal Court which, like the Statute of the Special Court, now separates gender crimes into an isolated paragraph and codifies sexual slavery as a crime against humanity.[1377]

(iv) Elements of the Crime of Sexual Slavery

708. In addition to the chapeau requirements of Crimes Against Humanity pursuant to Article 2 of the Statute, the elements of the crime of sexual slavery are as follows:

  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 perpetrator committed such conduct intending to engage in the act of sexual slavery or in the reasonable knowledge that it was likely to occur.[1378]

709. The powers of ownership listed in the first element of sexual slavery are non-exhaustive. There is no requirement for any payment or exchange in order to establish the exercise of ownership.[1379] Deprivation of liberty may include extracting forced labour or otherwise reducing a person to servile status.[1380] Further, ownership, as indicated by possession, does not require confinement to a particular place but may include situations in which those who are captured remain in the control of their captors because they have no where else to go and fear for their lives.[1381] The consent or free will of the victim is absent under conditions of enslavement.[1382]

710. The Prosecution evidence in the present case does not point to even one instance of a woman or girl having had a bogus marriage forced upon her in circumstances which did not amount to sexual slavery. Not one of the victims of sexual slavery gave evidence that the mere fact that a rebel had declared her to be his wife had caused her any particular trauma, whether physical or mental. Moreover, in the opinion of the Trial Chamber, had there been such evidence, it would not by itself have amounted to a crime against humanity, since it would not have been of similar gravity to the acts referred to in Article 2(a) to (h) of the Statute.

711. The Trial Chamber finds that the totality of the evidence adduced by the Prosecution as proof of “forced marriage” goes to proof of elements subsumed by the crime of sexual slavery. As exhaustively examined in Chapter X, Factual Findings, infra,[1383] so-called “forced marriages” involved the forceful abduction of girls and women from their homes or other places of refuge and their detention with the AFRC troops as they attacked and moved through various districts. The girls and women were taken against their will as “wives” by individual rebels.[1384] The evidence showed that the relationship of the perpetrators to their “wives” was one of ownership and involved the exercise of control by the perpetrator over the victim, including control of the victim’s sexuality, her movements and her labour; for example, the “wife” was expected to carry the rebel’s possessions as they moved from one location to the next, to cook for him and to wash his clothes.[1385]. Similarly, the Trial Chamber is satisfied that the use of the term “wife” by the perpetrator in reference to the victim is indicative of the intent of the perpetrator to exercise ownership over the victim, and not an intent to assume a marital or quasi-marital status with the victim in the sense of establishing mutual obligations inherent in a husband wife relationship. In fact, while the relationship of the rebels to their “wives” was generally one of exclusive ownership, the victim could be passed on or given to another rebel at the discretion of the perpetrator.[1386]

712. None of the witnesses gave evidence that they considered themselves to be in fact “married”. (One witness testified that she had been “married” to her rebel “husband” in a ceremony,[1387] but no consent could be inferred given the environment of violence and coercion.) Rather, the repeated assertion of the witnesses was that they had been “taken as wives”.[1388] They were held against their will and a number tried to escape.[1389] There was no evidence that any of the women taken as “wives” stayed on with their rebel “husbands” following the end of hostilities.[1390]

713. In light of the foregoing, the Trial Chamber finds, by a majority,[1391] that the evidence adduced by the Prosecution is completely subsumed by the crime of sexual slavery and that there is no lacuna in the law which would necessitate a separate crime of “forced marriage” as an ‘other inhumane act’. In view of the Trial Chamber’s findings that Count 7 is bad for duplicity, the Trial will in the interests of justice consider the evidence of Sexual Slavery under Count 9.

714. The Trial Chamber further finds that alleged offences of a residual, non-sexual nature do not belong under the part of the Indictment entitled “Counts 6-9: Sexual Violence”. The Trial Chamber finds by a majority[1392] that Count 8 is redundant insofar as the crime of sexual slavery will be dealt with in Count 9. Other residual crimes of a non-sexual nature are dealt with in Count 11. Count 8 is therefore dismissed. [1393]

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

(i) Elements of the Crime

715. Article 3(e) of the Statute safeguards the highly important value of human dignity[1394] by prohibiting “[o]utrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault”. The crime of outrages upon personal dignity must be interpreted in light of the purpose behind Common Article 3 of the Conventions, which is: “to uphold the inherent human dignity of the individual”;[1395] or to safeguard “the principles of humane treatment.”[1396] The said crime is formulated in a manner which ensures broad and flexible interpretation. The list of offences subsumed under outrages against personal dignity constitutes a “non-exhaustive list of conduct”, with humiliating and degrading treatment, rape, enforced prostitution and indecent assaults of any kind given by way of example.”[1397] The ICRC Commentary on the Fourth Geneva Convention notes that: “[i]t seems useless and even dangerous to attempt to make a list of all the factors that make treatment ‘humane’” and that treatment which degrades human dignity can take innumerable forms[1398]. The crime of outrages upon personal dignity was first articulated in the 1949 Geneva Conventions and is firmly entrenched in customary international law.

716. In addition to the chapeau requirements of Violations of Article 3 Common to the Geneva Conventions and of Additional Protocol II pursuant to Article 3 of the Statute, the Trial Chamber adopts the following elements of the crime of outrages upon personal dignity:

  1. The perpetrator committed an outrage upon the personal dignity of the victim;
  2. The humiliation and degradation was so serious as to be generally considered as an outrage upon personal dignity;
  3. The perpetrator 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
  4. The perpetrator knew that the act or omission could have such an effect.[1399]

(ii) Findings

717. Count 9 has been charged in addition to or in the alternative to Count 6 (Rape), Count 7 (Sexual Slavery and Any Other Form of Sexual Violence) and Count 8 (Other Inhumane Act, Forced Marriage).[1400]

718. Rape (Count 6) is an offence which is specified in Article 3(e) of the Statute as being an outrage upon personal dignity . As stated by the ICTR Trial Chamber in Akayesu, “[l]ike torture, rape is used for such purposes as intimidation, degradation, humiliation, discrimination, punishment, control or destruction of a person. Like torture, rape is a violation of personal dignity”.[1401]

719. With reference to the elements of sexual slavery set out in the discussion of Count 8 above, the Trial Chamber is similarly satisfied that sexual slavery is an act of humiliation and degradation so serious as to be generally considered an outrage upon personal dignity. The Trial Chamber in Kvočka held that “perform[ing] subservient acts,” and “endur[ing] the constant fear of being subjected to physical, mental or sexual violence” in camps were outrages upon personal dignity.[1402] Sexual slavery, which may encompasses rape and/or other types of sexual violence as well as enslavement, entails a similar humiliation and degradation of personal dignity.

720. “Any other form of Sexual Violence” in the context of crimes against humanity is a residual category of sexual crimes listed under Article 2(g) of the Statute, and may encompass an unlimited number of acts. The Trial Chamber agrees with the conclusion of the ICTY Trial Chamber in Kvočka that “sexual violence is broader than rape”.[1403] The prohibition embraces all serious abuses of a sexual nature inflicted upon the physical and moral integrity of a person by means of coercion, threat of force or intimidation.[1404]

721. The Indictment fails to provide any particulars as to the specific form of sexual violence alleged. One of the fundamental rights guaranteed to an accused under Article 17(4)(a) of the Statute is the right to be informed “of the nature and cause of the charge against him”. An Indictment is defective if it does not state the material facts underpinning the charges with enough detail to enable an accused to prepare his or her defence.[1405] In the present case, given the broad scope of the offence of ‘any other form of sexual violence’, it was essential for the Indictment to clearly identify the specific offence or offences which the Accused are required to answer. The Trial Chamber finds that the Indictment is defective in this respect because it fails to plead material facts with sufficient specificity. For this reasons, the charge of ‘any other form of sexual violence’ is dismissed and thus will not be considered additionally or alternatively under Count 9.

722. Finally, as Count 8 has been dismissed for redundancy, the Trial Chamber will not consider it additionally or alternatively under Count 9.

5. Counts 10 and 11: Crimes Relating to Physical Violence (Articles 3(a) and 2(i) of the Statute)

723. In Count 10, the Accused are charged with violence to life, health and physical or mental well-being of persons, in particular mutilation, a violation of Common Article 3 and of Additional Protocol II, punishable under Article 3(a) of the Statute. In addition, or in the alternative, Count 11 charges the Accused with other inhumane acts, a crime against humanity, punishable under Article 2(i) of the Statute.[1406]

(a) Count 10 – Violence to Life, Health and Physical or Mental Well-Being of Persons, in Particular Mutilation

(i) Elements of the Crime of ‘Mutilation’

724. Regarding the specific act of mutilation, in addition to the chapeau requirements of Violations of Article 3 Common to the Geneva Conventions and of Additional Protocol II pursuant to Article 3 of the Statute, the Trial Chamber adopts the following elements of the crime of ‘mutilation’:

  1. The perpetrator intentionally 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;
  2. 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.[1407]

725. The Trial Chamber notes that in its ‘Rule 98 Decision’ an additional element was given requiring that “the perpetrator’s conduct caused death or seriously endangered the physical or mental health of the victim”. The Prosecution submits that this additional element is superfluous and should not been retained.[1408] The Trial Chamber agrees that such a requirement is superfluous and will not retain it.

(b) Count 11 – Other Inhumane Acts

726. The elements of Count 11, a crime against humanity as “other inhumane acts”, have been discussed earlier.[1409] With regard to particular acts of physical violence, the seriousness of the act or omission and its degree of gravity must be examined on a case-by-case basis. The Trial Chamber notes that the particulars mentioned in paragraphs 58 through 64 mainly identify acts of mutilations which are covered by Count 10. Paragraph 60 of the Indictment particularises beatings and ill-treatment. The Trial Chamber will consider these acts solely under Count 11, as considering mutilations and ill-treatment under the same count would result in a duplicitous charge. Therefore, with regard to acts of violence other than ‘mutilation’, such as beatings and ill-treatment,[1410] the Trial Chamber will assess the seriousness of a particular conduct and its sufficient gravity on a case-by-case basis. In that regard consideration must be given to all the factual circumstances, including the nature of the act or omission which forms the factual basis of the charges, the context in which it occurred, including the personal circumstances and the effects on the victim.[1411]

6. Count 12: Crimes Relating to Child Soldiers (Article 4(c) of the Statute)

727. In Count 12, the Indictment alleges that the AFRC/RUF “at all times relevant to this Indictment, throughout the Republic of Sierra Leone routinely conscripted, enlisted and/or used boys and girls under the age of 15 to participate in active hostilities.” The Accused are thus charged with conscripting or enlisting children under the age of 15 years into armed forces or groups, or using them to participate actively in hostilities (“conscripting, enlisting or using child soldiers”), an ‘other serious violation of international humanitarian law’, punishable under Article 4(c) of the Statute.[1412]

728. The question of whether this crime is recognised as a crime entailing individual criminal responsibility under customary international was examined by the Appeals Chamber,[1413] which found that, prior to November 1996, the crime had crystallised as customary law, regardless of whether committed in internal or international armed conflict,[1414] and held that

[c]hild recruitment was criminalised before it was explicitly set out as a criminal prohibition in treaty law and certainly by November 1996, the starting point of the time frame relevant to the indictments. As set out above, the principle of legality and the principle of specificity are both upheld.[1415]

(a) Elements of the Crime

729. Guided once more by the Rome Statute, the Trial Chamber adopts the following elements of 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:

  1. 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;
  2. Such person or persons were under the age of 15 years;
  3. The perpetrator knew or should have known that such person or persons were under the age of 15 years;
  4. The conduct took place in the context of and was associated with an armed conflict;
  5. The perpetrator was aware of factual circumstances that established the existence of an armed conflict.[1416]

(b) Submissions

730. The Kanu Defence submits that the age of 15 years is ‘arbitrary’ as “the ending of childhood [in the traditional African setting] has little to do with achieving a particular age and more to do with physical capacity to perform acts reserved for adults.”[1417] Moreover, the Kanu Defence claims that the age for recruitment into the military in Sierra Leone is flexible, and that there has been a practice by various governments in Sierra Leone of recruiting persons under the age of 15 into the military prior to the Indictment period.[1418] According to the Kanu Defence, this practice impacts on the Accused Kanu’s awareness as to the unlawfulness of conscripting, enlisting or using child soldiers below the age of 15. As such conduct was not, it is submitted, on its face manifestly illegal, no conviction should be entered on Count 12 on the grounds of mistake of law.[1419]

(c) Findings

731. The Trial Chamber recalls that the Appeals Chamber has found that the crime charged in Count 12 of the Indictment has attained the status of customary international law. The Appeals Chamber also confirmed the customary status of the requirement that the victim must be below the age of 15.[1420] Moreover, the Trial Chamber notes that the domestic law of Sierra Leone defines a ‘child’ as a person under 16 years of age.[1421] Therefore, the Trial Chamber dismisses what appears to be an argument by the Kanu Defence to construe the age requirement flexibly.

732. Furthermore, the Trial Chamber is not persuaded that the defence of mistake of law can be invoked here. The rules of customary international law are not contingent on domestic practice in one given country.[1422] Hence, it cannot be argued that a national practice creating an appearance of lawfulness can be raised as a defence of conduct violating international norms. The submission by the Kanu Defence is therefore dismissed.

733. The actus reus of the crime can be satisfied by ‘conscripting’ or ‘enlisting’ children under the age of 15, or by ‘using’ them to participate actively in the hostilities.

734. ‘Conscription’ implies compulsion, in some instances through the force of law.[1423] While the traditional meaning of the term refers to government policies requiring citizens to serve in their armed forces,[1424] the Trial Chamber observes that Article 4(c) allows for the possibility that children be conscripted into “[armed] groups”. While previously wars were primarily between well-established States, contemporaneous armed conflicts typically involve armed factions which may not be associated with, or acting on behalf, a State. To give the protection against crimes relating to child soldiers its intended effect, it is justified not to restrict ‘conscription’ to the prerogative of States and their legitimate Governments, as international humanitarian law is not grounded on formalistic postulations.[1425] Rather, the Trial Chamber adopts an interpretation of ‘conscription’ which encompasses acts of coercion, such as abductions[1426] and forced recruitment[1427], by an armed group against children, committed for the purpose of using them to participate actively in hostilities.

735. ‘Enlistment’ entails accepting and enrolling individuals when they volunteer to join an armed force or group.[1428] Enlistment is a voluntary act, and the child’s consent is therefore not a valid defence.[1429]

736. ‘Using’ children to “participate actively in the hostilities” encompasses putting their lives directly at risk in combat.[1430] As a footnote attached to the Preparatory Conference on the establishment of the International Criminal Court states

The words “using” and “participate” have been adopted in order to cover both participation in combat and also active participation in military activities linked to combat such as scouting, spying, sabotage and use of children as decoys, couriers or at military checkpoints.”[1431]

737. It is the Trial Chamber’s view that the use of children to participate actively in hostilities is not limited to participation in combat. An armed force requires logistical support to maintain its operations. Any labour or support that gives effect to, or helps maintain, operations in a conflict constitutes active participation. Hence carrying loads for the fighting faction, finding and/or acquiring food, ammunition or equipment, acting as decoys, carrying messages, making trails or finding routes, manning checkpoints or acting as human shields are some examples of active participation as much as actual fighting and combat.

738. The elements of ‘armed forces or groups’ entails that the armed forces or groups must be under responsible command, which entails a degree of organization which should be such as to enable the armed groups to plan and carry out concerted military operations and to impose discipline within the armed group.

7. Count 13: Abductions and Forced Labour (Article 2(c) of the Statute)

(a) Introduction

739. 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 Trial Chamber has considered the crime of sexual slavery under Count 9 (Outrages upon Personal Dignity).

740. 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.”

741. 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.

742. The crime of ‘enslavement’ has long been criminalised under customary international law.[1432] The Slavery Convention of 1926 defined slavery as “the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised.”[1433] Being an indication of ‘enslavement’,[1434] forced labour has been defined as “all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily.”[1435]

743. ‘Enslavement’ was listed both as a war crime and a crime against humanity in the Nuremberg Charter,[1436] with convictions entered on this count in a number of cases. [1437] The International Law Commission consistently included ‘enslavement’ as a crime against humanity in its Draft Codes of Crimes Against the Peace and Security of Mankind.[1438] The ICTY Trial Chamber in the Krnojelac case held that

the express prohibition of slavery in Additional Protocol II of 1977, which relates to internal armed conflicts, confirms the conclusion that slavery is prohibited by customary international humanitarian law outside the context of a crime against humanity. The Trial Chamber considers that the prohibition against slavery in situations of armed conflict is an inalienable, non-derogable (sic) and fundamental right, one of the core rules of general customary and conventional international law.[1439]

(b) Elements of the crime

744. 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”[1440] (actus reus), while the mens rea of the violation consists in the intentional exercise of such powers”.[1441]

745. 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.”[1442]

746. 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.[1443]

747. 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.”[1444]

748. In Krnojelav, the allegations concerned enslavement for the purpose of forced labour.[1445] 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.”[1446]

749. In addition to the chapeau requirements of Crimes against Humanity pursuant to Article 2 of the Statute, the Trial Chamber therefore adopts the following 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 intentional exercise of such powers.[1447]


 

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

750. In Count 14 of the Indictment, the Prosecution alleges that “[a]t all times relevant to this Indictment, AFRC/RUF engaged in widespread unlawful taking and destruction by burning of civilian property.” The Accused are thus charged with pillage, a violation of Common Article 3, punishable under Article 3(f) of the Statute.[1448]

751. The prohibition of the unlawful appropriation of public and private property in armed conflict is well-established in customary international law where it has been variously referred to as ‘pillage’[1449], ‘plunder’[1450] and ‘looting’[1451]. It was charged both as a war crime and as a crime against humanity in many of the trials based on the Nuremberg Charter and Control Council Law No. 10, including the trial of the major war criminals in Nuremberg.[1452] Pillage has been adjudicated in a number of cases before the ICTY.[1453]

(a) Elements of the Crime

752. Trial Chamber I was of the opinion that the crime of pillage included the following constitutive elements in addition to the chapeau requirements of Violations of Article 3 Common to the Geneva Conventions and of Additional Protocol II pursuant to Article 3 of the Statute :

(1) The perpetrator appropriated private or public property;

(2) The perpetrator intended to deprive the owner of the property and to appropriate it for private or personal use;

(3) The appropriation was without the consent of the owner.[1454]

753. That definition of the crime of pillage is apparently based on the Rome Statute, Elements of Crimes, Article 8(2)(b)(xvi). The inclusion of the words “private or personal use” excludes the possibility that appropriations justified by military necessity might fall within the definition. Nevertheless, the definition is framed to apply to a broad range of situations. As was stated by Trial Chamber I,

“the ICTY in the case of Čelebići noted that ‘plunder’ should be understood as encompassing acts traditionally described as ‘pillage’, and that pillage extends to cases of ‘organised’ and ‘systematic’ seizure of property from protected persons as well as to ‘acts of looting committed by individual soldiers for their private gain’”.[1455]

754. Inclusion of the element of “private or personal use” in the definition appears to be at variance with Čelebići, since it may not include ‘organized’ and ‘systematic’ seizure of property. The Trial Chamber is therefore of the view that the requirement of “private or personal use” is unduly restrictive and ought not to be an element of the crime of pillage.

755. Accordingly and in addition to the chapeau requirements of Violations of Article 3 Common to the Geneva Conventions and of Additional Protocol II pursuant to Article 3 of the Statute, the Trial Chamber conclude that the crime of pillage within the meaning of Article 3(f) of the Statute is comprised of the following specific elements:

1. The perpetrator appropriated property.

2. The appropriation was without the consent of the owner.

3. The perpetrator intended to deprive the owner of the property.

(b) Submissions

756. The Prosecution submits that “destroying property by burning, as part of a series of acts involving ruthless plundering to remove anything of value followed by the total removal of the value of the buildings themselves, falls within the concept of ‘wilful and unlawful appropriation of property’.”[1456] All three Accused contend that ‘burning’ does not fall under the definition of ‘pillage’.[1457]

(c) Findings

757. In its Rule 98 Decision, the Trial Chamber deferred a final decision on this issue until the end of the trial.[1458] Having carefully examined all relevant sources, the Trial Chamber is of the opinion that the inclusion of ‘burning’ in the crime of ‘pillage’, as suggested by the Prosecution, is untenable. First, a review of military manuals shows that most countries do not regard the destruction of enemy property as pillage.[1459] Second, the jurisprudence is unambiguous in requiring that the property be appropriated,[1460] an element which is not satisfied in the event that property is burned and destroyed. The Rome Statute also makes a distinction between appropriation and destruction of property.[1461]

758. Moreover, the destruction of civilian property may be brought and adjudged under a number of other provisions,[1462] which the Prosecution has not done in this case.

D. Law on Individual Criminal Responsibility

1. Introduction

759. The Indictment cumulatively charges each of the Accused for the crimes in counts 1 through 14 under different modes of liability. These are:

  1. Individual criminal responsibility pursuant to Article 6(1) of the Statute in that

a. each of the Accused planned, instigated, ordered, or committed the said crimes, or

b. each Accused otherwise aided and abetted in the planning, preparation, or execution of the said crimes, or

c. the said crimes were within a joint criminal enterprise, or were a reasonably foreseeable consequence of the joint criminal enterprise, in which each Accused participated;

  1. In addition, or in the alternative, individual criminal responsibility pursuant to Article 6(3) of the Statute for the crimes committed by their subordinates whilst each of the Accused was holding a position of authority.[1463]

2. Individual Criminal Responsibility Pursuant to Article 6(1) of the Statute

760. Article 6(1) of the Statute lists the forms of criminal conduct which, provided that all other necessary conditions are satisfied, may result in an accused incurring individual criminal responsibility for one or more of the crimes provided for in the Statute.[1464] Article 6(1) of the Statute provides:

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

761. The principle that an individual may be held criminally responsible under one of these modes of responsibility is enshrined in customary international law.[1465] The Trial Chamber in the ICTY case of Kordić[1466] made the following observations on the object of the ICTY equivalent to Article 6(1) (that is, Article 7(1) of the International Statute):

The principle that an individual may be held criminally responsible for planning, assisting, participating or aiding and abetting in the commission of a crime is firmly based in customary international law. Article 7(1) reflects the principle of criminal law that criminal liability does not attach solely to individuals who physically commit a crime but may also extend to those who participate in and contribute to a crime in various ways, when such participation is sufficiently connected to the crime, following principles of accomplice liability. The various forms of liability listed in Article 7(1) may be divided between principal perpetrators and accomplices. Article7(1) may thus be regarded as intending to ensure that all those who either engage directly in the perpetration of a crime under the Statute, or otherwise contribute to its perpetration, are held accountable.

(a) Committing

762. The actus reus of ‘committing’ primarily covers “the physical perpetration of a crime by the offender himself.”[1467] An accused will be held responsible under Article 6(1) of the Statute for having committed a crime charged enumerated in the Statute when he “participated, physically or otherwise directly, in the material elements” of the said crime.[1468] Committing also covers situations where the accused engenders “a culpable omission in violation of a rule of criminal law.”[1469] There can be several perpetrators in relation to the same crime where the conduct of each one of them fulfils the requisite elements of the definition of the substantive offence.[1470]

763. In addition, an accused must either possess the relevant mens rea for the crime in question, or be aware that the act or omission will more likely than not result in the commission of a crime in the Statute and accept this risk.[1471]

764. In light of the foregoing, the Trial Chamber rejects the argument of the Brima and Kamara Defence that in the absence of physical perpetration of a crime by an accused, any submission that the accused should be held culpable for ‘committing’ a crime ought to be dismissed, or at least weakened.[1472]

(b) Planning

765. “Planning” implies that one or several persons contemplate designing the commission of a crime at both the preparatory and execution phases.[1473] Proof of the existence of a plan may be provided by circumstantial evidence.[1474] Responsibility is incurred when the level of the accused’s participation is substantial, even when the crime is actually committed by another person.[1475]

766. The actus reus requires that the accused, alone or together with others, designated the criminal conduct constituting the crimes charged. It is sufficient to demonstrate that the planning was a factor substantially contributing to such criminal conduct.[1476] The mens rea requires that the accused acted with direct intent in relation to his or her own planning or with the awareness of the substantial likelihood that a crime would be committed a in the execution of that plan. Planning with such awareness has to be regarded as accepting that crime.[1477]

767. Where an accused is found guilty of having committed a crime, he or she cannot at the same time be convicted of having planned the same crime,[1478] even though his or her involvement in the planning may be considered an aggravating factor.[1479]

768. Both the Brima and the Kamara Defence, relying on the Brđanin Trial Judgement, contend that responsibility for planning a crime only arises when an accused is “substantially involved at the preparatory stage of the crime in the concrete form it took, which implies that he possessed sufficient knowledge thereof in advance.”[1480] The Trial Chamber does not agree with such a narrow construction of the responsibility for planning, although it cannot be denied that there must be a sufficient link between the planning of a crime both at the preparatory and the execution phases. In the opinion of the Trial Chamber, it is sufficient to demonstrate that the planning was a factor substantially contributing to such criminal conduct.[1481]

(c) Instigating

769. “Instigating” means prompting another to commit an offence.[1482] This requires more than merely facilitating the commission of the principal offence, which may suffice for aiding and abetting. It requires some kind of “influencing the principal perpetrator by way of inciting, soliciting or otherwise inducing him or her to commit the crime”.[1483] Both acts and omissions may constitute instigating, which covers express as well as implied conduct.[1484] A nexus between the instigation and the perpetration must be proved, but it is not necessary to demonstrate that the crime would not have been perpetrated without the involvement of the accused.[1485]

770. The actus reus requires that the accused prompted another person to commit the offence[1486] and that the instigation was a factor substantially contributing to the conduct of the other person(s) committing the crime.[1487] The mens rea requires that the accused acted with direct intent or with the awareness of the substantial likelihood that a crime would be committed in the execution of that instigation.[1488]

771. If a principal perpetrator has definitely decided to commit the crime, further encouragement or moral support may still qualify as aiding and abetting.[1489]

(d) Ordering

772. The actus reus of ‘ordering’ requires that a person in a position of authority uses that authority to instruct another to commit an offence.[1490] No formal superior-subordinate relationship between the accused and the perpetrator is necessary; it is sufficient that the accused possessed the authority to order the commission of an offence and that such authority can be reasonably inferred.[1491] The order need not be given in writing or in any particular form,[1492] nor does it have to be given directly to the perpetrator.[1493] The existence of an order may be proven through circumstantial evidence.[1494]

773. The mens rea for ordering requires that the accused acted with direct intent in relation to his own ordering or with the awareness of the substantial likelihood that a crime will be committed in the execution of that order.[1495] The state of mind of an accused may also be inferred from the circumstances, provided that it is the only reasonably inference to be drawn.[1496]

774. The Trial Chamber agrees with the Prosecution that an accused may be responsible for “reissuing illegal orders”, i.e., for receiving a criminal order from a superior and, in turn, instructing subordinates to act upon it.[1497]

(e) Aiding and abetting

775. The actus reus of ‘aiding and abetting’ requires that the accused gave practical assistance, encouragement, or moral support which had a substantial effect on the perpetration of a crime.[1498] “Aiding and abetting” may be constituted by contribution to the planning, preparation or execution of a finally completed crime.[1499] Such contribution may be provided directly or through an intermediary[1500] and irrespective of whether the participant was present or removed both in time and place from the actual commission of the crime.[1501] Mere presence at the scene of crime without preventing its occurrence does not per se constitute aiding and abetting.[1502]. However, the presence at a crime scene of a person who is in a position of authority may be regarded as an important indication for encouragement or support.[1503]

776. The mens rea required for aiding and abetting is that the accused knew that his acts would assist the commission of the crime by the perpetrator or that he was aware of the substantial likelihood that his acts would assist the commission of a crime by the perpetrator. However, it is not necessary that the aider and abettor had knowledge of the precise crime that was intended and which was actually committed, as long as he was aware that one of a number of crimes would probably be committed, including the one actually committed.[1504]

777. The Prosecution contends that a “persistent failure to prevent or punish crimes by subordinates over time may also constitute aiding or abetting.”[1505] The Trial Chamber agrees that, while such failure entails a superior’s responsibility under Article 6(3) of the Statute, it may also be a basis for his liability for aiding and abetting, subject to the mens rea and actus reus requirements being fulfilled.[1506]

(f) Participation in a Joint Criminal Enterprise

778. The Trial Chamber has already found that the pleading of common purpose in the Indictment was defective and that joint criminal enterprise as a mode of liability cannot be relied upon by the Prosecution.

3. Individual Criminal Responsibility Pursuant to Article 6(3) of the Statute

779. In addition, or alternatively, the Indictment charges pursuant to Article 6(3) of the Statute that the Accused, while holding positions of superior responsibility and exercising effective control over their subordinates, are each individually criminally responsible for the said crimes in that each Accused is responsible for the criminal acts of his subordinates which he knew or had reason to know that the subordinate was about to commit or had done so and which each Accused failed to take the necessary and reasonable measures to prevent or to punish the perpetrators thereof.[1507]

780. Article 6(3) of the Statute provides:

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

(a) Elements of Superior Responsibility

781. As is evident from its terms, Article 6(3) of the Statute requires a three-pronged test for criminal liability to attach:

  1. The existence of a superior-subordinate relationship between the accused as superior and the perpetrator of the crime;
  2. The accused knew or had reason to know that the crime was about to be or had been committed; and
  3. The Accused failed to take necessary and reasonable measures to prevent the crime or punish the perpetrators thereof.[1508]

782. The principle that an individual may be held responsible as a superior in the course of an armed conflict is enshrined in customary international law.[1509] The scope of Article 6(3) does not only include military commanders, but also political leaders and other civilian superiors in possession of authority.[1510]

783. Under Article 6(3) of the Statute, a superior is held responsible for an omission, i.e., for the failure to perform an act required by international law.[1511] The culpable omission of a superior consists of his or her failure to prevent or punish crimes under the Statute committed by subordinates. Hence, a superior is responsible not for the principal crimes, but rather for what has been described as a ‘dereliction’ or ‘neglect of duty’ to prevent or punish the perpetrators of serious crimes.[1512] Responsibility of a superior is not limited to crimes committed by subordinates in person, but encompasses any modes of criminal liability proscribed in Article 6(1) of the Statute. It follows that a superior can be held responsible for failure to prevent or punish a crime which was planned, ordered, instigated or aided and abetted by subordinates.[1513]

(i) Existence of a Superior-Subordinate Relationship

784. The doctrine of command responsibility is “ultimately predicated upon the power of the superior to control the acts of his subordinates.”[1514] It is immaterial whether the power of the superior over the subordinates is based on de jure or on de facto authority,[1515] as long as the superior possessed the material ability to prevent or punish the commission of the offence.[1516] This requirement has been widely referred to as the exercise of ‘effective control’.[1517] It may be presumed that the existence of de jure authority prima facie results in effective control unless proof to the contrary is produced.[1518] Substantial influence over the conduct of others falls short of effective control.[1519]

785. Indications for effective control include the formality of the procedure used for appointment of a superior,[1520] the power of the superior to issue orders[1521] or take disciplinary action,[1522] the fact that subordinates show greater discipline in the superior’s presence,[1523] the level of profile, manifested through public appearances and statements,[1524] or the capacity to transmit reports to competent authorities for the taking of proper measures.[1525]

786. A superior may be held responsible for crimes committed by individuals temporarily subordinated to him, provided he exercises effective control over them.[1526] Further, superior responsibility is not excluded by the concurrent responsibility of other superiors in a chain of command.[1527] If a superior has functioned as a member of a collegiate body with authority shared among various members, the power or authority actually devolved on an accused may be assessed on a case-by-case basis, taking into account the cumulative effect of the accused’s various functions.[1528]

787. However, in a conflict characterised by the participation of irregular armies or rebel groups, the traditional indicia of effective control provided in the jurisprudence may not be appropriate or useful. As the Trial Chamber has observed, the formality of an organisation’s structure is relevant to, but not determinative of, the question of the effective control of its leaders. The less developed the structure, the more important it becomes to focus on the nature of the superior’s authority rather than his or her formal designation.

788. The Trial Chamber considers that indicia which may be useful to assess the ability of superiors in such irregular armies to exercise effective control over their subordinates, include that the superior had first entitlement to the profits of war, such as looted property and natural resources; exercised control over the fate of vulnerable persons such as women and children; the superior had independent access to and/or control of the means to wage war, including arms and ammunition and communications equipment; the superior rewarded himself or herself with positions of power and influence; the superior had the capacity to intimidate subordinates into compliance and was willing to do so; the superior was protected by personal security guards, loyal to him or her, akin to a modern praetorian guard; the superior fuels or represents the ideology of the movement to which the subordinates adhere; and the superior interacts with external bodies or individuals on behalf of the group.

789. Nonetheless, the key traditional indicia of effective control remain central, although they may be more loosely defined. For example, the power of the superior to issue orders is crucial, although these orders may be criminal in nature. Similarly, the superior must be capable of taking disciplinary action, even though the measures taken may be more brutal and arbitrarily utilised.

790. Identification of the principal perpetrator, particularly by name, is not required to establish a superior-subordinate relationship. It is sufficient to identify the subordinates as belonging to a unit or group controlled by the superior.[1529]

(ii) Actual or Imputed Knowledge

791. For a superior to be held responsible pursuant to Article 6(3) of the Statute, it must be established that he knew or had reason to know that the subordinate was about to commit or had committed such crimes.

a. Actual Knowledge

792. Actual knowledge may be defined as the awareness that the relevant crimes were committed or about to be committed.[1530] There is no presumption of such knowledge but, in the absence of direct evidence, it may be established through circumstantial evidence.[1531] Factors indicative of actual knowledge include, first of all, an individual’s superior position and the superior’s geographical and temporal proximity to the crimes;[1532] also, the type and scope of crimes, the time during which they occurred, the number and type of troops and logistics involved, the widespread occurrence of crimes, the tactical tempo of operations, the modus operandi of similar illegal acts and the officers and staff involved.[1533]

793. The evidence required to demonstrate actual knowledge may differ depending on the position of authority held by a superior and the level of responsibility in the chain of command. The membership of the accused in an organised and disciplined structure with reporting and monitoring mechanisms has been found to facilitate proof of actual knowledge. Conversely, the standard of proof of the actual knowledge of a superior exercising a more informal type of authority will be higher.[1534]

b. Imputed Knowledge

794. In determining whether a superior “had reason to know”, or imputed knowledge, that his or her subordinates were committing or about to commit a crime, it must be shown that specific information was available which would have put the superior on notice of crimes committed or about to be committed.[1535] The superior may not be held liable for failing to acquire such information in the first place.[1536] However, it suffices for the superior to be in possession of sufficient information, even general in nature, written or oral, of the likelihood of illegal acts by subordinates.[1537] In other words: failure to conclude, or conduct additional inquiry, in spite of alarming information amounts to imputed knowledge.[1538] It is not necessary that the information would compel the conclusion of the existence of concrete crimes.[1539] Rather, the information must have put the accused on notice of the ‘present and real risk’ that crimes under the Statute were committed, or about to be committed.[1540] Examples of such information include that a subordinate has a violent or unstable character and that a subordinate has been drinking prior to being sent on a mission.[1541] Furthermore, reports addressed to the superior, the level of training and instruction of subordinate officers are factors to be taken into account when determining imputed knowledge.[1542]

795. The Brima Defence objects to an expansive interpretation of the imputed knowledge standard, especially to hold “a commander [...] liable for the most serious of crimes under a mere negligence standard.”[1543] Similarly, the Kamara and Kanu Defences oppose the application of strict liability.[1544] The Kamara Defence says that superiors are not under a duty to know, and are only liable when they had “information which should have enabled them to conclude in the circumstances at the time, that [the perpetrator] was committing or was going to commit such a breach and if they did not take feasible measures within their power to prevent or repress the breach”.[1545]

796. It is clear from the case law referred to above that solely negligent ignorance is insufficient to attribute imputed knowledge. What is required is the superior’s factual awareness of information which should have prompted him or her to acquire further knowledge.[1546] Responsibility pursuant to Article 6(3) of the Statute will attach when the superior remains wilfully blind to the criminal acts of his or her subordinates.[1547]

(iii) Failure to Prevent or Punish

797. It must be established that the superior failed to take the necessary and reasonable measures to prevent or punish the crimes of his or her subordinates. These are two distinct duties: it is the superior’s primary duty to intervene as soon as he or she becomes aware of crimes about to be committed, while taking measures to punish will only suffice if the superior did not become aware of these crimes until after they were committed.[1548]

798. As regards the duty to prevent the crimes of subordinates, the type of necessary and reasonable measures a superior must take is a matter of evidence rather than one of substantive law.[1549] Generally, it can be said that the measures required of the superior are limited to those within his or her material ability under the circumstances,[1550] including those that may lie beyond his or her formal powers.[1551] The kind and extent of measures to be taken depend on the degree of effective control exercised by the superior at the relevant time, and on the severity and imminence of the crimes that are about to be committed.[1552] A superior must prevent not only the execution and completion of a subordinate’s crimes, but also their earlier planning and preparation. The superior must intervene as soon as he becomes aware of the planning or preparation of crimes to be committed by his subordinates and as long as he has the effective ability to prevent them from starting or continuing.[1553]

799. The duty to punish only arises once a crime under the Statute has been committed.[1554] A superior is bound to conduct a meaningful investigation with a view to establish the facts, order or execute appropriate sanctions, or report the perpetrators to the competent authorities in case the superior lacks sanctioning powers.[1555] According to the ICTY Appeals Chamber, there is no support in customary international law for the proposition that a commander can be held responsible for crimes committed by a subordinate prior to the commander’s assumption of command over that subordinate.[1556]

4. Relationship Between Article 6(1) and 6(3) of the Statute

800. Article 6(1) and 6(3) of the Statute denote different categories of individual criminal responsibility. Where both Article 6(1) and Article 6(3) responsibility are alleged under the same count, and where the legal requirements pertaining to both of these heads of responsibility are met, it would constitute a legal error invalidating a judgement to enter a concurrent conviction under both provisions.[1557] Where a Trial Chamber enters a conviction on the basis of Article 6(1) only, an accused’s superior position may be considered as an aggravating factor in sentencing.[1558]

X. FACTS AND FINDINGS

A. Unlawful Killings (Counts 3-5)

1. Allegations and Submissions

801. The Indictment alleges that members of the AFRC/RUF subordinate to and/or acting in concert with the Accused carried out unlawful killings of civilians who were “routinely shot, hacked to death and burned to death”[1559] in various locations in the territory of Sierra Leone, including Bo District between about 1 June to 30 June 1997; Kenema District between about 25 May 1997 and about 19 February 1998; Kono District about 14 February 1998 and 30 June 1998; Kailahun Districts between about 14 February 1998 and 30 June 1998; Koinadugu District between about 14 February 1998 and 30 September 1998; Bombali District between about 1 May 1998 and 30 November 1998; Freetown and the Western Area between 6 January 1999 and 28 February 1999; and Port Loko District between about February and April 1999.[1560]

802. Submissions by the Parties in respect of particular incidents or witnesses have been discussed as they arise on the evidence below.

803. The Trial Chamber has considered the available evidence below to determine whether the actus reus of the acts of murder under Article 2(a) and Article 3(a) of the Statute and extermination under Article 2(b) of the Statute is proved beyond reasonable doubt in respect of the locations and time frames pleaded in the Indictment. The Trial Chamber finds that where the actus reus of the crime has been established, the only reasonable inference on the evidence adduced is that the perpetrators intentionally killed the victim or caused serious bodily harm in the knowledge that death would likely result.

804. Where findings have been made of murder as crimes against humanity, the Trial Chamber is further satisfied that the perpetrators of the crimes were aware that their acts were part of the widespread and systematic attack on the civilian population of Sierra Leone which was taking place at the time.

805. Where findings have been made of murder as a war crime, the Trial Chamber is further satisfied that the perpetrators were aware of the protected status of the victims and were acting in furtherance of the armed conflict, as the victims were either fighters from opposing forces or civilians, whom the AFRC/RUF targeted on the basis of their perceived support for the opposing forces. The Trial Chamber recalls that the judicial notice was taken of the fact that the CDF, including the Kamajors, were a party to the armed conflict in Sierra Leone.[1561] On the evidence adduced, the Trial Chamber is satisfied that ECOMOG was also a party to the armed conflict.

2. Evidence and Deliberations

(a) Bo District (1 June 1997 – 30 June 1997)

806. The Prosecution alleges that “[b]etween about 1 June 1997 and 30 June 1997, AFRC/RUF attacked Tikonko, Telu, Sembehun, Gerihun, and Mamboma, unlawfully killing an unknown number of civilians”.[1562]

807. No evidence of unlawful killings has been adduced with respect to the villages of Telu, Sembehun and Mamboma, as alleged in the Indictment.[1563]

808. The Brima Defence submits that no evidence was led by the Prosecution of any attack by the AFRC in Bo District, implying that the perpetrators of the crimes in Bo District were exclusively members of the RUF.[1564]

809. In arriving at the following factual findings, the Trial Chamber has examined the entirety of the evidence and relies on Prosecution Witnesses TF1-004, TF1-053 and TF1-054 and Defence Witness DBK-137, as well as Exhibit P-66.

(i) Tikonko

810. Witness TF1-004 testified that on or around 25 June 1997, two groups of more than 200 “soldiers” in military fatigue and red head bands attacked Tikonko.[1565] He stated that after the two attacks the streets of Tikonko were full of dead bodies and that as many as 200 persons may have lost their lives.[1566] Given the general nature of this evidence and the possibility that some of the persons killed were not protected persons, the Trial Chamber will make findings only on the specific incidents described by the witness below.

811. The witness testified that he was at Tikonko Junction when the first group of soldiers came from the direction of Bo. The first group of soldiers said that they were coming to kill Kamajors; he heard this from some market women who were fleeing and, later, from the soldiers themselves.[1567] One of the soldiers from the group asked the witness who he was and the witness replied that he was “with them” so that the soldiers would not kill him. The soldier said they had come for Kamajors and did not kill the witness.[1568]

812. Witness TF1-004 testified that a second group of soldiers followed the first and that they were “not selecting” meaning that they were killing people indiscriminately.[1569] The witness observed the soldiers kill five civilians and three Kamajors.[1570]

813. The burden of proof as to whether a combatant is hors de combat rests with the Prosecution.[1571] The witness did not describe with precision the circumstances in which the three Kamajors were killed. The Trial Chamber is therefore unable to determine whether they were taking active part in the hostilities at the time. The Trial Chamber accordingly finds that five civilians were intentionally killed during the attack on Tikonko.

814. Some time later, the witness came out of his hiding spot and saw an unknown number of dead people at Tikonko Junction. The corpses were dressed in civilian clothing.[1572] The Witness walked into Tikonko proper, towards his house and saw more corpses, both women and men.[1573] He heard a woman calling from a house. The witness entered the house and the woman asked him for water. The woman had been shot in the knee and her belly had been split open. She told the witness that the “soldiers” were responsible. The witness also observed approximately ten other bodies in the room with bullet wounds. In the next room, the witness saw the body of a man who had been shot in the back of the neck. A child was lying next to him, shot dead through the chest. The witness moved into a third room of the house where he observed another two bodies; one of a man who had been shot in the side and through the ears.[1574]

815. The witness left the house and continued walking towards his home. He saw the corpse of a man whose legs had been broken and whose skin appeared to have been removed from his forehead with a knife as well as the corpse of another man with bullet wounds lying in the gutter.[1575]

816. The witness entered another house, next to his home and saw the bodies of two dead women. One woman had a gunshot wound to the ear and her stomach had been split open so that the intestines had slipped out. The second woman had a gunshot wound in her side. The bodies were piled one on top of the other.[1576]

817. The witness testified that he did not know anyone in the village who owned guns that could have killed these individuals.[1577]

818. Two to three days after the attacks, the witness, together with some youths and elders from the village dug a mass grave, collected bodies from around the town and buried them. The witness estimates that they buried 20 bodies.[1578]

819. The Trial Chamber is satisfied on the basis of the witness’s evidence that at least 18 to 20 civilians were killed by “soldiers” during the attack on Tikonko.

820. The Brima and Kanu Defence submit that the witness in cross-examination accepted that the soldiers who attacked Tikonko in June 1997 were members of the RUF.[1579] The Trial Chamber notes that while witness TF1-004 testified that the “soldiers” attacking Tikonko identified themselves as belonging to the AFRC faction,[1580] he also stated that some of them were the “rebels” or RUF who had been stationed in Tikonko prior to the May 1997 coup.[1581] In light of this evidence, the Trial Chamber finds that the above-established incidents were committed by members of either the AFRC faction or the RUF, but it cannot be determined beyond reasonable doubt to which of the two factions the perpetrators belonged.

(ii) Gerihun

821. Witness TF1-053 testified that on 26 June 1997, eight “soldiers” with guns, among them a certain AF Kamara, one AB Kamara and one Boysie Palmer, arrived in vehicles and entered the house of Paramount Chief Sandy Demby in Gerihun.[1582] The witness approached the veranda of the house and while he did not see what occurred inside, he heard a gunshot, upon which he fled the scene. [1583]

822. Witness TF1-054 had come to Paramount Chief Demby’s house to warn him of the imminent arrival of the soldiers. He testified that Paramount Chief Demby was in his bedroom recovering from an operation and with him was his caretaker, Sumaila. Paramount Chief Demby told the Witness and his caretaker to hide in the bathroom and they did so. The witness then decided to step outside and he hid next to Paramount Chief Demby’s bedroom window. He watched as a group of soldiers shot Paramount Chief Demby in the stomach. Having realised that Paramount Chief Demby was not dead yet, another soldier stabbed him in the neck.[1584] At this point the Witness ran away. When he returned to the house the next morning, he found the dead body of the caretaker, Sumaila, lying in the bathtub. Witness TF1-054 did not give further information as to who killed Sumaila.[1585] Given the strong circumstantial evidence, the Trial Chamber is satisfied beyond reasonable doubt that Sumaila was also killed by the soldiers.

823. The Brima Defence submits that the evidence of witness TF1-053 should not be relied upon and alleges that his testimony contradicted his earlier pre-trial statements.[1586] In addition, Defence witness DBK-137 testified that he heard that Kamajors were responsible for the death of Chief Demby.[1587] The Trial Chamber notes that the testimony of witness TF1-053 regarding the killing of Chief Demby was corroborated by witness TF1-054 and was not shaken on cross-examination.[1588] The Trial Chamber thus dismisses the version of events presented by witness DBK-137 which is based on hearsay.

824. On the same day, 26 June 1997, witness TF1-053 observed a “soldier” shoot and kill a boy who used to run errands for him, named Kamo Lahai.[1589] The witness also saw a dead woman lying on Old Bo Road. The witness was told by mourners that her name was Sukie and that she had been shot in the breast by a “soldier”.[1590] Although witness TF1-053 did not mention the name Sukie in his pre-trial statement, the Trial Chamber finds that this does not affect the credibility of the witness as he explained that he only recalled her name when giving evidence at trial.[1591] The Trial Chamber is satisfied Sukie was unlawfully killed by a soldier during the attack on Gerihun.

825. On 26 or 27 June 1997, in the vicinity of the market in Gerihun, Witness TF1-053 encountered at least five corpses, both male and female.[1592] Given that no further particulars were given regarding this incident, the Trial Chamber is unable to establish with certainty the identity of the perpetrators or whether the victims were protected persons. The Trial Chamber accordingly makes no findings on this incident.

(iii) Findings

826. By virtue of the foregoing, and leaving aside for the present the individual responsibility of the three Accused, the Trial Chamber is satisfied beyond reasonable doubt that between about 1 June 1997 and 30 June 1997, a minimum of 27 civilians were unlawfully killed in Bo District as charged under Counts 4 and 5. On the evidence adduced, the Trial Chamber has been unable to establish beyond reasonable doubt whether the perpetrators were members of the AFRC and/or RUF.

(b) Kenema District (25 May 1997 – 19 February 1998)

827. The Prosecution alleges that “[b]etween about 25 May 1997 and about 19 February 1998, in locations including Kenema town, members of AFRC/ RUF unlawfully killed an unknown number of civilians.”[1593]

828. In making the following factual findings, the Trial Chamber has considered the entirety of the evidence and relies on Prosecution Witnesses TF1-122 and Defence Witnesses DAB-063 and DAB-147, as well as Exhibit P-24.

(i) Kenema Town

829. Following the coup in May 1997, both “RUF rebels” and “AFRC Juntas” took control of Kenema Town.[1594] These groups were present in Kenema until February 1998.[1595]

830. Not long after the takeover of Kenema Town, witness TF1-122 saw the house of one Pa Mansaray at Mambu Street on fire. According to the witness, the house had previously been occupied by Kamajors.[1596] Thereafter, he saw three dead bodies dressed in plain cloth – two elderly men and one younger man – lying on the street. Witness TF1-122 insisted that they were civilians and not Kamajors.[1597] However, in the absence of further evidence, the Trial Chamber cannot establish beyond reasonable doubt that these individuals were killed by members of the AFRC/RUF.

831. Witness TF1-122 gave evidence that at the end of May 1997 or shortly thereafter, a certain Ms. Dowei reported to the Kenema Police that “AFRC Juntas” and “RUF rebels” shot dead her husband who intervened while they were looting his property.[1598]

832. The testimony of witnesses TF1-122 and DAB-147, as well as Exhibit P-24, establish that in late January or early February 1998, a number of persons, among them BS Massaquoi, Brima Kpaka and Andrew Quee were arrested on the orders of Sam Bockarie of the RUF and brought to the AFRC Secretariat in Kenema. Bockarie announced that these persons were Kamajor supporters and would be killed.[1599] The detainees were then transferred to the Kenema Police Station. BS Massaquoi and Brima Kpaka were subsequently released on bail.[1600] Within a couple of days, BS Massaquoi was re-arrested by “AFRC juntas”. He was then taken away, along with the other detainees, to an unknown location.[1601] Thereafter, at Lambaya stream near a waterfall called Dorwala, witness TF1-122 found the corpses of BS Massaquoi, Andrew Quee and four other individuals. Their bodies were covered with gunshot wounds, and the cranium of BS Massaquoi had been crushed by a cement block.[1602]

833. Referring to the evidence given by witnesses DAB-063 and DAB-147, the Brima and Kamara Defence submit that Sam Bockarie was responsible for the killing of BS Massaquoi.[1603] The Trial Chamber notes that the evidence on precisely who carried away BS Massaquoi, Andrew Quee and the other detainees is inconclusive. There is also no direct evidence on who killed the individuals found at Lambaya stream.[1604] Nonetheless, the Trial Chamber is satisfied on the evidence that unidentified members of AFRC/RUF were responsible for these killings.

834. In late June 1997, a certain Bonnie Wailer was detained at the Kenema police station. One day, witness TF1-122 saw Sam Bockarie arriving at the police station, accompanied by an unidentified AFRC Lieutenant and others.[1605] In the presence of police officers and civilians, witness TF1-122 heard Bockarie ordering that Bonnie Wailer and two other detained persons should be killed. Witness TF1-122 was present when “Bockarie’s men” and “AFRC juntas” shot dead the three individuals.[1606] Their bodies were taken away on a military pickup van.[1607]

835. After the end of the rainy season in 1997, the Kenema police were investigating the burglary of the warehouse of the International Committee of the Red Cross (“ICRC”) in Kenema. Witness TF1-122 heard Sam Bockarie announce that he would take the investigation into his own hands.[1608] As a result, Bockarie had two individuals arrested, one of whom was named Santos.[1609] On the same evening, Witness TF1-122 found the dead bodies of these two persons at his doorstep.[1610] Two days later, Sam Bockarie and “his boys” loaded the corpses onto a vehicle and drove off.[1611] Although Witness TF1-122 in a pre-trial statement stated that the burglary concerned the warehouse of ‘Médecins Sans Frontières’, not of the ICRC,[1612] the Trial Chamber is satisfied that this inconsistency can be attributed to the lapse of time and that the credibility of Witness TF1-122 remains unshaken.

836. One morning in late December 1997, when ‘Operation No Living Thing’ was launched in Kenema, Witness TF1-122 saw the dead body of a man dressed in civilian clothes near the Sierra Leone Telecommunication Building on Hangh Road in Kenema Town.[1613] “RUF rebels” and “AFRC juntas” were dancing around the body and singing that they would kill all Kamajors. They split open the dead man’s abdomen with a bayonet and stretched his intestines across Hangh Road and established a checkpoint around it. The body stayed there for three days.[1614]

837. At an unspecified time between May 1997 and February 1998, Sam Bockarie personally killed a farmer near the NIC Building in Kenema town with two gunshots. Witness TF1-122 heard the gunshots and arrived at the scene when the farmer was dying. Sam Bockarie remarked that all Kamajors must be “finished”. Bockarie’s “boys” then threw the farmer’s dead body into a hole.[1615]

838. The Kanu Defence submits that the evidence of witness TF1-122 is unreliable as regards the identification of perpetrators of unlawful killings, and that “crimes committed in Kenema District during the AFRC regime fall clearly within the responsibility of the RUF”.[1616]

839. The Trial Chamber accepts on the evidence that some of the above killings can be attributed to Sam Bockarie of the RUF. However, it dismisses the Kanu Defence submission that none of the killings can be attributed to the AFRC faction as the testimony of witness TF1-122 implicating “AFRC juntas” in these incidents was not shaken on cross-examination.

(ii) Findings

840. By virtue of the foregoing evidence, and leaving aside for the present the individual responsibility of the three Accused, the Trial Chamber is satisfied beyond reasonable doubt that between about 25 May 1997 and about 19 February 1998, members of the AFRC/RUF unlawfully killed a minimum of 17 civilians in Kenema Town in Kenema District, amounting to the elements of Counts 4 and 5.

(c) Kono District (14 February 1998 – 30 June 1998)

841. The Prosecution alleges that “[a]bout mid February 1998, AFRC/RUF fleeing from Freetown arrived in Kono District. Between about 14 February 1998 and 30 June 1998, members of AFRC/RUF unlawfully killed several hundred civilians in various locations in Kono District, including Koidu, Tombodu, Foindu, Willifeh, Mortema and Biaya.”[1617]

842. No evidence has been led on unlawful killings with respect to the villages of Foindu, Willifeh and Biaya.[1618]

843. In reaching its factual findings and having examined the entire evidence, the Trial Chamber relies on the evidence of Prosecution witnesses TF1-334, George Johnson, TF1-216 and Defence witnesses DBK-129, DAB-018, and DAB-023.

844. The evidence establishes that between February and June 1998, AFRC/RUF forces were in control of Kono District.[1619] Defence witnesses testified that the AFRC soldiers present in Kono were under the overall command of RUF.[1620]

(i) Koidu

845. In early March 1998, Johnny Paul Koroma declared Koidu Town a “no go area” for civilians. This declaration was reiterated by Issa Hassan Sesay of the RUF.[1621] Many civilians were killed following this order by AFRC and RUF troops in Koidu Town and surrounding villages.[1622] This testimony is generally corroborated by witnesses TF1-206 and TF1-217, who heard about killings in Koidu Town.[1623]

846. Documentary evidence suggests that in mid-June 1998, more than 650 civilians were killed as a result of the fighting in the area around Koidu.[1624] Again, the Trial Chamber is unable to attribute those killings to a specific faction.

847. The Trial Chamber therefore finds that an unknown number of civilians were unlawfully killed in Koidu, but is unable to determine beyond reasonable doubt whether these killings are attributable to AFRC and/or RUF forces in Kono District.

(ii) Tombodu

848. In or about April 1998, upon the orders of a certain ‘Staff Alhaji Bayo’, 53 people were burnt alive by “juntas” in a big house near late Sahr Fania’s compound at Tombodu.[1625]

849. In mid-May 1998, ‘Savage’ locked 15 civilians into a house in Tombodu town which he then set ablaze. None of them escaped.[1626] Another 47 people were beheaded by ‘Savage’ and ‘Guitar boy’ and then thrown into a diamond pit.[1627] Witness George Johnson corroborated this evidence generally, testifying that ‘Changabulanga’ aka ‘Savage’ killed more than 150 people who were then thrown into a pit. He stated that all were civilians and had all been killed by machete.[1628] Several other witnesses testified that massive killings took place at the hands of AFRC/RUF fighters in Tombodu town between February and June 1998.[1629]

850. Witness TF1-033 testified that in or about March 1998, the Accused Brima ordered ‘Savage’ to attack Tombodu, which resulted in the killing of “hundreds of civilians”.[1630] In the presence of AFRC commanders including the Accused Kamara and Kanu, many civilians were burned alive as they were locked up in houses which were then set on fire.[1631]

851. The Defence vigorously contests the testimony of witness TF1-033 with regard to this incident. The Kamara Defence submit that the witness’s testimony is exaggerated, inconsistent and contradictory to other Prosecution witnesses.[1632] The Brima Defence claim that the testimony of witness TF1-033 is unsupported and cannot be relied upon, stating that although George Johnson gave evidence of the presence of the Accused Brima in Tombodu at a particular time, this was a transient stop on their withdrawal from the district. George Johnson did not state that he saw Brima order atrocities on their way out of Kono District.[1633]

852. The following issues are in dispute amongst the parties regarding the testimony of witness TF1-033: the number of persons killed in Tombodu, the time frame when the killings took place and whether the Accused Brima ordered or was present while the crimes were committed.

853. In cross-examination, witness TF1-033 stated that ‘Savage’ was the sole commander of Tombodu at the time of the atrocities described and he was subordinate commander to ‘Gullit’.[1634] Prosecution witness George Johnson testified that the Accused Brima arrived after the commission of crimes in Tombodu.[1635] Further, witness TF1-033 gave only very general information in relation to the alleged order and his testimony is inconsistent and contradicts the evidence of other reliable witnesses.[1636] For example, witness TF1-033 testified that the Accused Kanu was present in Tombodu in March 1998, at a time that other witnesses locate the Accused Kanu in Koinadugu District. Further, witness TF1-033 testified that the Accused Brima ordered Savage to attack Tombodu at a time where Tombodu was already the base of a AFRC Battalion in Kono District.[1637]

854. The Trial Chamber is thus of the view that the witness’s evidence that the Accused Brima gave an order to ‘Savage’ to kill civilians in Tombodu is not probative and does not rely on it in making a finding on unlawful killings in Tombodu.

855. The Trial Chamber is satisfied that in the Indictment period for Kono District ‘Staff Alhaji Bayo’ intentionally killed 53 people in Tombodu; that ‘Savage’ intentionally killed 15 civilians in Tombodu; that Savage and Guitar boy intentionally killed another 47 people in Tombodu.

(iii) Mortema

856. The Trial Chamber notes that the Prosecution has not led any evidence of unlawful killings in Mortema. However, the Defence witnesses DAB-025 and DAB-101 testified that on an unspecified day in 1998, the RUF attacked and took control of Mortema and an unknown number of people were killed as a result of the attack.[1638] As the attack was conducted by the RUF, the Trial Chamber will not make a final determination on the reliability of the evidence.

(iv) Findings

857. On the basis of the foregoing evidence, and leaving aside for the present the individual responsibility of the three Accused, the Trial Chamber is satisfied beyond reasonable doubt that between about 14 February 1998 and 30 June 1998, members of the AFRC unlawfully killed a minimum of 265 civilians in Tombodu, Kono District, as charged under Counts 4 and 5. The Trial Chamber is further satisfied that these large scale killings satisfy the element of massiveness for the crime of extermination charged under Count 3 of the Indictment. The indiscriminate manner in which the victims were targeted and the fact that the killings occurred in a single village over a relatively short period of time establishes that the principal perpetrators of the individual killings intended to contribute to the overall and massive result of these killings.

(d) Kailahun District (14 February 1998 – 30 June 1998)

858. The Prosecution alleges that “[b]etween about 14 February 1998 and 30 June 1998, in locations including Kailahun town, members of AFRC/RUF unlawfully killed an unknown number of civilians.”[1639]

859. In reaching its factual findings and having examined the entire evidence, the Trial Chamber relies on Prosecution witnesses TF1-045, TF1-113, TF1-334 and Gibril Massaquoi and Defence witness DAB-147, DAB-140 and DAB-142.

(i) Kailahun Town

860. Sam Bockarie was the senior commander of RUF troops which were in Kailahun District between February and June 1998.[1640] Witness TF1-113 testified that on his orders, a total of 67 persons were arrested in several villages in Kailahun District and detained at the G5 office in Kailahun Town. The persons were accused of being Kamajors.[1641] Some time later witness TF1-113 saw Sam Bockarie personally kill two individuals at the roundabout in Kailahun town. Eight dead bodies were already lying on the ground when he arrived at the scene.[1642] From the witness’s testimony, the Trial Chamber is satisfied that these eight persons were also killed by Bockarie. The ten persons killed were part of the group of 67 detained ‘Kamajors’.

861. Following the incident at the roundabout, Sam Bockarie ordered the killing of the remaining 57 detained ‘Kamajors’.[1643] In the witness’s presence, Bockarie instructed the Military Police Commander Joe Fatoma to kill these individuals, threatening him with death if the order was not obeyed. The 57 individuals were shot following that order.[1644] Witness TF1-113’s evidence is generally corroborated by a number of Defence Witnesses, although some of them testified that Sam Bockarie killed the 57 persons himself.[1645] Given that Witness TF1-113 was not shaken on cross-examination and the Defence Witnesses’ accounts of events were less detailed than her own, the Trial Chamber relies on her evidence. Witnesses DAB-142 and DAB-147 corroborated the evidence that the civilians killed were alleged Kamajors.[1646]

862. As witness TF1-113 testified that the above incidents occurred shortly after Johnny Paul Koroma arrived in Kailhun town and left for Kangema,[1647] the Trial Chamber is able to infer that the killings described occurred in the last half of March 1998.

863. However, it appears from the evidence that the 67 persons killed were combatants. The Trial Chamber recalls that if a victim is “a member of an armed organization, the fact that he is not armed or in combat at the time of the commission of crimes, does not accord him civilian status.”[1648] Accordingly, the Trial Chamber finds that the Prosecution has failed to prove beyond reasonable doubt that the detained and alleged ‘Kamajors’ were part of the civilian population.

(ii) Findings

864. By virtue of the foregoing, and leaving aside for the present the individual responsibility of the three Accused, the Trial Chamber is satisfied that between 14 February 1998 and 30 June 1998, Sam Bockarie and his subordinates unlawfully killed 67 persons in Kailahun Town in Kailahun District. As the Prosecution has not proved beyond reasonable doubt that the detained ‘Kamajors’ were part of the civilian population but only that they were hors de combat, the Trial Chamber concludes that only the elements of murder (Count 5) are established in respect of the killings in Kailahun Town.

(e) Koinadugu District (14 February 1998 – 30 September 1998)

865. The Prosecution alleges that “[b]etween about 14 February 1998 and 30 September 1998, in several locations including Heremakono, Kabala, Kumalu (or Kamalu), Kurubonla, Katombo, Koinadugu, Fadugu and Kamadugu, members of the AFRC/RUF unlawfully killed an unknown number of civilians.”[1649]

866. No evidence on unlawful killings was led in respect of Heremakono, Kumalu (or Kamalu), Katombo, Kamadugu[1650] and Kurubonla.

867. In reaching its factual findings and having examined the entire evidence, the Trial Chamber relies on Prosecution witnesses TF1-334, TF1-209 and TF1-147 and Defence witnesses DAB-081, DAB-083, DAB-077, DAB-078 and DAB-085, as well as Prosecution Exhibits P-57 and P-54 and Defence Exhibit D-24 (under seal).

(i) Kabala

868. Witness TF1-209 witnessed the killing of her six year old son by a rebel called ‘Jabbie’, loyal to SAJ Musa, at a farm in or near Kabala on an unspecified date in August 1998.[1651] Her husband was beaten to death with a ‘mortar pestle’ in the same attack by ‘Jabbie’ and a certain Alusein, who was loyal to ‘Superman’s’ group.[1652] The witness was sexually assaulted and abducted by the fighters. Her testimony in relation to these events is considered by the Trial Chamber below in its findings on Count 9.[1653]

869. In cross-examination, Defence Counsel referred the witness to a prior statement in which she stated that her son was two, and not six years old. The witness maintained that her child was six years of age when he was killed. She was able to provide a detailed account of the events and explained the inconsistencies with her prior statement.[1654] The Trial Chamber is thus satisfied that the witness’s husband and son were killed by fighters loyal to SAJ Musa and ‘Superman’.

870. On 17 September 1998, “rebels” attacked Kabala a second time. Witness TF1-147 testified that the rebels engaged in hostilities with loyal government SLA and ECOMOG forces. The witness was not present during those hostilities as he was hiding outside the town.[1655] However, he heard about the killing of many people.[1656] On his return to Kabala the next morning he saw ten corpses with gun shot wounds at the main junction in the centre of town.[1657] During cross-examination, the witness testified that the ten corpses that he saw were killed during the hostilities. The witness was not able to state whether the persons were civilians or by which armed organisation they were killed.[1658] In the absence of more specific evidence, the Trial Chamber is not satisfied that these victims were killed by AFRC or RUF forces or that they were civilians.

871. The Trial Chamber notes the evidence of witness TF1-199, that in the course of the attack on Kabala, ECOMOG were captured. Lieutenant Colonel ‘Savage’ and his men captured seven ECOMOG and loyal government SLA soldiers, removed their combat uniform, lined them up with their hands tied behind their back and executed them.[1659] However, this incident occurred outside of the Indictment period for Koinadugu.

(ii) Koinadugu Town

872. AFRC and RUF forces under the command of SAJ Musa and ‘Superman’ attacked and occupied Koinadugu Town in late July 1998.[1660] Many civilians were killed upon the orders of ‘Superman’.[1661] Specifically, Witness DAB-081 testified that more than ten civilians were beaten to death with machetes or sticks by the RUF.[1662]

873. Witness DAB-081 testified that one civilian boy, Lansana Farroo, was guarding a school in Koinadugu where child soldiers were being held. When he denied access to two RUF soldiers, they killed him.[1663]

874. In addition to the specific incidents described above, evidence of dead bodies found in the streets of Koinadugu Town was adduced at trial. The Trial Chamber finds this evidence insufficient to form the basis of findings of unlawful killings.[1664]

(iii) Fadugu

875. Notwithstanding the Defence submission that ECOMOG may be accountable for some of the killings which occurred in Fadugu at the relevant time,[1665] the Trial Chamber is satisfied that the following incidents cannot be attributed to ECOMOG.

876. On 22 May 1998, rebels attacked the town of Fadugu. They shot indiscriminately at civilians and killed an unspecified number.[1666] The Trial Chamber finds this evidence insufficient to form the basis of findings of unlawful killings.

877. Witness DAB-078 saw eight armed soldiers capture a civilian man, whom they believed was a member of the CDF, at a checkpoint in Fadugu on 22 May 1998.[1667] The soldiers beat the man to death, cut open his stomach and removed his intestines. The intestines were displayed openly at the checkpoint.[1668] In close vicinity to the checkpoint, a teacher and his younger brother were killed.[1669] The Trial Chamber is not satisfied beyond reasonable doubt that the soldiers knew that the killings were part of the attack on the civilian population and therefore the requisite mens rea to establish a crime against humanity is lacking. However, on the evidence adduced, the Trial Chamber finds that the perpetrators were aware that the victim was not taking active part in the hostilities and that they acted in furtherance of the armed conflict. However, the witness was not able to provide any details as to which faction the soldiers belonged.

878. During the early hours of 11 September 1998, there was a second attack on Fadugu by “rebels” in a campaign known as “Operation Die.” An unknown number of civilians were killed in the course of this attack, including the local paramount chief of Mabolo who was burnt to death.[1670] This incident is corroborated by documentary evidence.[1671]

(iv) Findings

879. By virtue of the foregoing, and leaving aside for the present the individual responsibility of the three Accused, the Trial Chamber is satisfied beyond reasonable doubt that between about 14 February 1998 and 30 September 1998, members of the AFRC/RUF unlawfully killed a minimum of 21 civilians in Kabala, Koinadugu Town and Fadugu in Koinadugu District, amounting to the elements of Counts 4 and 5.

(f) Bombali District (1 May 1998 - 30 November 1998)

880. The Prosecution alleges that “[b]etween about 1 May 1998 and 30 November 1998, in several locations in Bombali District, including Bonyoyo (or Bornoya), Karina, Mafabu, Mateboi and Gbendembu (or Gbendubu or Pendembu), members of the AFRC/RUF unlawfully killed an unknown number of civilians.”[1672]

881. No evidence on unlawful killings was led with respect to Mafabu.[1673]

882. In reaching its factual findings and having examined the entire evidence, the Trial Chamber relies on Prosecution Witnesses TF1-156, TF1-157, TF1-158, TF1-033, George Johnson and TF1-334 and Defence witnesses DBK-089, DBK-050 and DBK-094.

(i) Bornoya

883. Witnesses TF1-156, TF1-157 and TF1-158 testified that Bornoya was attacked by “soldiers” in the morning hours on an unspecified day in May 1998. Defence witnesses testified that the exact date of the attack was 8 May 1998. The assailants were armed and wore combat uniforms and red head bands.[1674] An unspecified number of civilians were killed during the attack.[1675]

884. A man wearing shorts, boots and a jacket uniform, and another man with a head band carrying a cutlass, slit open the stomach of a pregnant woman named Isatta and removed the foetus. Isatta died as a result.[1676] A certain Lansana Mansaray and Sarah Foday were assaulted and seriously wounded and later died as a result of their injuries.[1677] Two children of one Alhaji Sorie Mansaray were intentionally burnt to death under a mattress which was set on fire.[1678] An unspecified number of other civilians were killed in the course of the attack, including Adama Kamara, Jammah Daboh, Sheriff Mansaray and Mohamdu Koroma.[1679] A female soldier called Adama hacked to death the father of witness TF1-158.[1680] Witness DBK-050 watched soldiers hack his younger brother to death with a cutlass, on the orders of a female soldier known to him as 'Adama Cut Hand'.[1681]

885. Witness TF1-158, who was abducted and later used as a child soldier by the troops that attacked Bornoya, testified that he learned from another abducted boy who had been with the troops since Kono District that the leaders of the troops included ‘Gullit’, ‘Five-Five’, ‘O-Five’ and SAJ Musa.[1682] He testified that he learned about those names during the subsequent attack on the nearby village of Karina. However, witnesses belonging to SAJ Musa’s group testified that SAJ Musa and ‘O-Five’ were not en route with the advance team led by Brima.[1683] Nevertheless, Witness TF1-157, who was also abducted and later used as a child soldier, corroborates the fact that the troops were lead by ‘Gullit’ and ‘Five-Five’.[1684] He testified that he only heard about those names once he arrived at Camp Rosos.[1685] The Trial Chamber is satisfied that the attack on Bornoya was conducted by troops associated with the three Accused, as the village was on the route taken by the advance team led by Brima during the same time period.[1686]

(ii) Karina

886. On 8 May 1998 renegade soldiers attacked Karina, a Mandingo village in Bombali District. Previously, at Kamagbengbe, the Accused Brima ordered his troops to specifically target Karina, as he alleged that it was the home town of President Kabbah.[1687] All three Accused participated in the attack.[1688]

887. In the presence of witness TF1-334, the Accused Kamara and two other “juntas” locked five young girls into a house and subsequently set it ablaze. The five girls were burnt alive.[1689]

888. “Juntas” threw an unspecified number of little children into the flames of burning houses. The children were burnt alive.[1690] Soldiers stabbed a pregnant woman to death.[1691] A certain Saccoh Kankoh Fanta was injured during the attack and subsequently died.[1692] An unspecified number of children were killed during the attack.[1693]

889. ‘Cyborg’, a security officer to the Accused Kamara, threw at least four children aged between five and ten years from a two-storey building in Karina.[1694] The witness did not clarify whether the four children died as a result. The Trial Chamber therefore is not satisfied beyond a reasonable doubt that the children were killed.

890. A certain Eddie Williams, a.k.a. ‘Maf’, wrapped into an unknown number of people in a carpet inside a house and thereafter set the house on fire. The people were burnt alive. The Accused Kamara was watching from outside the house, together with Witness George Johnson and several personal security guards of the Accused Kamara.[1695]

891. Prosecution Witnesses TF1-334, George Johnson, TF1-199 and TF1-055 testified that civilians were killed at the Karina mosque, including the Imam.[1696] Witness TF1-334 testified that the Accused Brima was at the mosque and accused the Imam of supporting President Kabbah. Brima allegedly said to the Imam: "You, you are the one that pray for people. You are one of Pa Kabbah's family...[s]o you are the worst people here." The Witness stated that the Accused Brima then shot and killed the Imam, along with six men and five women with his ‘Magnum’ pistol.[1697] Witness George Johnson testified that the civilians at the mosque were killed by Halaji Kamanda aka ‘Gun Boot’. However, Witness George Johnson did not see the civilians being killed, but rather observed dead bodies with gun shot wounds inside and outside the mosque subsequently.[1698]

892. The Defence presented a different version of events. The Defence adduced evidence in closed session that established beyond reasonable doubt that the Imam was not killed in the attack on Karina mosque.[1699] Defence Witnesses DBK-089 and DBK-094 gave evidence that the Imam left Karina three days prior to the attack, leaving the Imam’s elder brother in charge of the mosque.[1700] The Imam’s elder brother appointed someone to lead the prayers in the absence of the Imam.[1701]

893. Defence witnesses DBK-089 and DBK-094 did not dispute the killing of civilians at the mosque. The Brima Defence submits that the testimony of witness TF1-334 is unreliable based on his assertion that the Imam was killed.[1702] The Trial Chamber notes that when asked to whom Brima spoke at the mosque, Witness TF1-334 responded “It was the imam -- the imam that was in charge of the mosque who was leading prayers.”[1703] The Trial Chamber is thus satisfied that the Witness referred to the person killed as the ‘Imam’ on the basis that this person was leading the prayers when the troops arrived at the mosque. This mistake on the part of the witness does not undermine the credibility of his evidence that the Accused Brima killed the person leading the prayers, along with 11 other civilians at the mosque.

894. In light of the above evidence, the Trial Chamber considers the testimony of witness DBK-094, who claimed to have only seen seven dead bodies in Karina after the attack to be unreliable.[1704] The Trial Chamber is satisfied that in fact civilians were killed on a massive scale in Karina.[1705] One witness estimated that at least 200 civilians were killed in the attack on Karina.[1706] Even though other witnesses have not estimated any total figures for the event, the figure of 200 civilians killed is corroborated by the totality of the evidence given, the massiveness of the attack on the village and the general destruction caused.

(iii) Mateboi

895. At an unspecified time in 1998, the Accused Brima sent an AFRC “advance team” under the command of ‘Captain Arthur’ to Mateboi, a village close to Camp Rosos.[1707] Upon return to Camp Rosos, ‘Captain Arthur’ brought the decapitated head of the chief of Mateboi and handed it over the commanders at headquarters, which included the Accused Brima and Kamara.[1708]

(iv) Gbendembu

896. In or around August 1998, ‘Gullit’ ordered two AFRC commanders, one Salifu Mansaray and ‘Arthur’ to attack Gbendembu, on the basis that ECOMOG and loyal SLA troops were purportedly stationed there.[1709] Witness TF1-033 heard that 25 civilians were killed in the attack on Gbendembu and that ‘Gullit’ commended his men for “a job well done”.[1710]

(v) Findings

897. By virtue of the foregoing, and leaving aside for the present the individual responsibility of the three Accused, the Trial Chamber is satisfied that between 1 May 1998 and 30 November 1998, members of the AFRC unlawfully killed an unknown number of civilians in Bornoya, Mateboi and Gbendembu in Bombali District. Consequently, the Trial Chamber finds that the material elements in relation to Counts 4 and 5 have been established.

898. The Trial Chamber is further satisfied that each of the killings in Karina was part of a large scale killing which in its totality satisfies the element of massiveness for the crime of extermination as charged under Count 3 of the Indictment. The indiscriminate manner in which the victims were targeted and the fact that the killings occurred over a relatively short period of time establishes that the perpetrators of the individual killings intended to contribute to the overall and massive result of these killings.

(g) Freetown and the Western Area (6 January 1999 – 28 February 1999)

899. The Prosecution alleges that “[b]etween 6 January 1999 and 28 February 1999, AFRC/RUF conducted armed attacks throughout the city of Freetown and the Western area. These attacks included large scale unlawful killings of civilian men, women and children at locations throughout the city and the Western Area, including Kissy, Wellington, and Calaba Town”.[1711]

900. The Prosecution has led evidence from witnesses who heard of killings of civilians and witnessed dead bodies in various locations in Freetown and the Western Area.[1712] While the Trial Chamber accepts this evidence as credible, given its general nature, the Trial Chamber relies on it to corroborate its findings on the more specific incidents described below.

901. The Trial Chamber has considered the available evidence and, in arriving at the following findings of fact, relies on the evidence of Prosecution witnesses TF1-033, TF1-184, Gibril Massaquoi, TF1-334, TF1-024, TF1-104, TF1-083, TF1-157, TF1-021, TF1-153 and TF1-084.

(i) Freetown

a. East End Police

902. Witness TF1-157 testified that when the troops entered Freetown, Police officers and their families were specifically targeted and killed.[1713] The targeting of Police officers followed a specific reminder by the Accused Kanu, who reiterated a previous order given to the troops by SAJ Musa at Newton, ordering that the troops should kill Nigerian soldier, Nigerian civilians, Police officers and SLPP party members.[1714] The Accused Kanu reminded the troops of that order at a meeting near Orugu Village[1715] on the eve of the attack on Freetown. The Accused Brima, Kamara, the witness George Johnson, Hassan Papah Bangura and other battalion commanders were present at that meeting.[1716]

903. No suggestion has been made that the regular police were involved in the hostilities during the armed conflict in Sierra Leone. The Trial Chamber is therefore satisfied that the killed officers were civilians.

b. State House Area

904. Witness TF1-033 testified that on 6 January 1999, while he was seated on a bench at State House with Gibril Massaquoi, fighters including ‘Junior Sheriff’ brought one boy to State House. The witness saw the boy’s ID card, from which the witness learnt that he was from Guinea-Bissau. Witness TF1-033 testified that ‘Junior Sheriff’ then shot and killed the boy.[1717]

905. Witness TF1-033 also testified that on 6 January 1999 and the subsequent four or five days thereafter, he observed civilians being killed around State House by AFRC fighters on the orders of ‘Gullit’.[1718] The witness stated that people perceived to be Nigerians and civilians suspected of harbouring Nigerians were brought to State House and killed. Given the more detailed evidence of killings at State House considered below, some of which involved the Accused Brima, the Trial Chamber makes no additional findings on this general evidence of witness TF1-033.

906. On 6 January 1999, at State House, witness TF1-184 watched the Accused Brima shoot dead a woman, who was the girlfriend of one of the soldiers.[1719] Witness TF1-334 also described an incident wherein the Accused Brima shot and intentionally killed a woman at State House on that same day, whom he referred to as the wife of one of the soldiers.[1720]

907. Witness Gibril Massaquoi testified that when he entered State House on 6 January 1999, he saw sixteen persons in civil attire sitting on the ground inside the compound. The witness overheard ‘Five-Five’ talking to the men, who were explaining that they were not soldiers but Nigerian businessmen. ‘Gullit’ then arrived and told ‘Five-Five’ that the men were Nigerian ECOMOG soldiers who had removed their uniforms and were posing as civilians. Several of the Nigerians denied this. ‘Gullit’ then told his soldiers to “get rid” of the Nigerians.[1721] The witness testified that he saw ‘Five-Five’ and other soldiers take “some of them” across the road from State House to “a place now they are referring to as the Defence Building. It was formerly a hotel.”[1722] The witness testified that ‘Five-Five’ shot and killed one man. Three others were shot and killed, although the witness does not state by whom. The four corpses and the remaining Nigerians, who were still alive, were then loaded into a white four wheel drive and taken away from State House.[1723]

908. The Trial Chamber has considered the cross-examination of witness Gibril Massaquoi on this point.[1724] It emerged that in a prior statement concerning the incident, the witness stated that he saw two persons being killed at “the defence building”. He states that neither ‘Gullit’ nor ‘Five-Five’ personally killed anyone, but that “they gave orders to their men” to execute the Nigerians.[1725]

909. Witness TF1-184 gave the following evidence regarding killings he witnessed at State House on 6 January 1999:

A. [...] So by this I left him and came inside State House. They came with four men --Q. Mr Witness, who is they? They came?A. We, our soldiers, junior soldiers, went to the defence. By then it was Paramount Hotel. They used to call it Paramount Hotel. That is where they brought this four civilian, including one woman. As they said, these people were Nigerians. Gullit shot at them. Five-Five took the woman. We left there. I came down. I came inside again.[1726]

The witness was not cross-examined on this evidence, which the Trial Chamber finds somewhat imprecise.

910. The Trial Chamber is satisfied that witnesses Gibril Massaquoi and TF1-184 describe the same incident, as their accounts are substantially similar and over six years passed between the event in question and their testimony. It is plausible that the discrepancies between the witnesses’ accounts are explicable on the basis that the witnesses arrived at State House at a different point in time and described the incident from their various perspectives. The Trial Chamber is satisfied that the Accused Brima gave an order his subordinates, including Kanu to execute the civilians. The Trial Chamber is further satisfied that Kanu shot and killed one civilian near State House and ordered his men to execute another three civilians.

911. Witness TF1-334 testified that on the same day, he observed ‘Tito’ bringing fourteen captured Nigerian ECOMOG soldiers, in uniform, to State House. ‘Gullit’ questioned these soldiers about their commander and where their “military hardware” was stored. The witness stated that ‘Gullit’ became irritated when the soldiers did not give adequate responses and he took a pistol and shot and killed two of them. He then ordered ‘Tito’ to execute the remaining soldiers. ‘Tito’ took the remaining twelve Nigerians “out the back of the State House” where they were executed by him and his men.[1727] The Trial Chamber observes, from the evidence of witness TF1-024, that the Defence building, formerly the Paramount Hotel, is situated behind State House but close by it.[1728] Witness TF1-334 was not cross-examined on this incident.

912. As there is a possibility that the victims were combatants, the Trial Chamber is not satisfied that they belonged to the civilian population. The Trial Chamber is satisfied that at least four persons hors de combat were executed by AFRC soldiers who were acting in furtherance of the armed conflict.

913. On 6 January 1999, at Garrison Street outside State House, witness TF1-334 observed a AFRC named Lieutenant Colonel Kido shoot and kill approximately six civilians because they had “overlooked” him,[1729] meaning that they did not pay him sufficient respect.

914. Prior to the departure of the AFRC troops from State House, while Witness TF1-024 was in captivity there, he overheard a commander whom the others called ‘Gullit’ telling his fighters to force captured civilians to join the AFRC troops on their retreat, in order to replace those fighters killed by ECOMOG. Civilians who refused to join were shot in the presence of ‘Gullit’ and their dead bodies were thrown out the back of State House. The witness was unable to specify the number of civilians who were killed, but estimated that there were more than thirty.[1730] The Trial Chamber thus finds that at least thirty civilians were killed.

915. The Brima Defence submits that witness TF1-024’s identification of ‘Gullit’ at State House was a mere guess, intended to favour the Prosecution case.[1731] In cross-examination it emerged that the witness, in a prior written statement, described ‘Gullit’ as a man of medium height, ‘not too black’ but rather ‘fair in complexion’. The witness clarified that he did not intend to suggest that the person to whom he referred as ‘Gullit’ was white.[1732] The Trial Chamber accepts the evidence of the witness, contained in a pre-trial written statement and repeatedly asserted in oral testimony, that he knew the person to be ‘Gullit’ by the fact that people called him by that name and he responded.[1733] Further, there is corroborating evidence from other witnesses that ‘Gullit’ was present at State House in the first week after the invasion.[1734]

916. The Brima Defence also challenge the witness’s description of State House, submitting that it is contradicted by the description given by the Accused Brima in evidence.[1735] The Trial Chamber has reviewed the evidence of both witness TF1-024 and the First Accused in relation to the layout of State House and especially the kitchen.[1736] The Trial Chamber is of the view that the discrepancies between the two descriptions of the building are minor and explicable on the basis that the First Accused worked in the building for a number of years while on the witness’s account he spent a short and stressful period in captivity there.

c. Kingtom

917. In the second week that the troops were in Freetown, while the headquarters was still at State House, the 5th Battalion Commander ‘Basky’, aka Saidu Kambolai, came to State House and reported that he needed reinforcements at Kingtom, near Ascension Town, as ECOMOG had taken over the area.[1737] Witness TF1-334 was at State House in the presence of the three Accused, his superior Commander A[1738], Colonel Woyoh and some of the military supervisors when ‘Basky’ made this report. In response, the witness, his superior, Commander Basky and Colonel Woyoh gathered some men and returned to State House, where they introduced the men to ‘Gullit’. ‘Gullit’ told the Operations Commander in front of the men that he needed the ground at Kingtom captured.

918. The troops, led by Operations Commander, Commander Basky and Colonel Woyoh and accompanied by the witness, went to Kingtom.[1739] The witness stated that the soldiers broke into houses and killed the civilians inside because they perceived them as ‘traitors’ who were collaborating with ECOMOG.[1740] The witness testified that the soldiers would knock on the door of the house and if the door was not opened, they would force it open and “[t]he first person who came out was a dead person.”[1741] The witness was unable to estimate the number of civilians killed in this manner.

d. Fourah Bay

919. Witness TF1-334 testified that in Freetown in January 1999, after the troops lost State House and Eastern Police and while the troops were at Savage Square, ‘Gullit’ received information that the people of Fourah Bay had killed one of his soldiers. ‘Gullit’ announced that he would lead the AFRC troops to Fourah Bay to burn houses and kill people in retaliation. The witness testified that troops including himself, ‘Gullit’, ‘Bazzy’, ‘Five-Five’, the Operation Commander, the Deputy Operation Commander and his superior “Commander A” moved to Fourah Bay. The troops attacked Fourah Bay and he observed a number of civilians being killed. The witness testified that all of the commanders participated in the attack, naming specifically ‘Gullit’ and ‘Five-Five’. The troops then moved to Upgun.[1742]

920. Witness George Johnson corroborated the evidence of the Accused Brima ordering retaliatory killings of civilians in Fourah Bay, although he stated that Brima and the other commanders were at State House when they received the report about the soldier allegedly killed. The witness testified that he went on the attack, along with around one hundred AFRC soldiers, led by one Saidu Kambolia.[1743] “A lot of civilians” were killed, including men, women and children burned inside houses. Soldiers shot people who attempted to escape from burning houses.[1744] The attack was not limited to Fourah Bay Road but encompassed the entire Fourah Bay area. When asked to estimate the number of civilians killed, the witness replied that “I couldn't estimate because I could not go round the whole Fourah Bay to count each and every body.”[1745] After the operation, the soldiers returned to State House where Brima was present.[1746]

921. Witness TF1-184 gave the most detailed account of an attack on Fourah Bay ordered by Brima in retaliation for the alleged killing of one of the soldiers by civilians in that area. He testified that he was at Ferry Junction, after the troops lost State House, with ‘Gullit’ and ‘Five-Five’ and Kamara was nearby.[1747] Upon receiving this information, ‘Gullit’ ordered a soldier named “Mines” to go to the SLRA to collect cutlasses. “Mines” subsequently returned with cutlasses, which he distributed to the troops with the assistance of one of the battalion commanders ‘Changabulanga’.[1748] He described a demonstration of an amputation that ‘Five-Five’ gave for the troops at this point.[1749]

922. Brima then ordered the soldiers to move to the Upgun roundabout via Kissy Road. The witness testified that upon arrival at Upgun, the troops were summoned in a muster parade. ‘Five-Five’ and ‘Gullit’ held a discussion and then ‘Five-Five’ told the troops that ‘Gullit’ had said that the civilians should be taught a lesson. ‘Five-Five’ then ordered that any civilian the troops saw from Ross Road until Fourah Bay Road should be amputated and killed and the entire area should be burned down.[1750] The witness stated that it was normal practice for the commanders to have a discussion, after which ‘Five-Five’, whom the witness referred to as the “army chief commander”, would inform the troops on the details of the operation.[1751]

923. According to the witness, the troops were then divided for the attack on Fourah Bay, with ‘Five-Five’ as the commander of one group and ‘Bazzy’ at Kissy Road. He then stated that after carrying out the orders, the troops were called back to where ‘Gullit’ was near Kissy Road.[1752]

924. The Kamara Defence submits that the testimonies of witnesses TF1-334, George Johnson and TF1-184 on the attack on Fourah Bay are inconsistent.[1753] The Trial Chamber accepts that there are discrepancies between the three accounts. Nonetheless, this does not mandate the dismissal of the entire testimony of each witness in relation to the attack on Fourah Bay. The Trial Chamber is of the view that the variations in the three accounts are explicable due to the passage of years since the events in question and the chaotic and stressful atmosphere existing at the relevant time, rather than bias on the part of witnesses George Johnson and TF1-334, as suggested by the Kamara Defence.[1754] However, the Trial Chamber notes that neither witness George Johnson nor TF1-334 were cross-examined on their testimony regarding the incident. In addition, witness TF1-184’s evidence was more detailed.

925. The Trial Chamber further finds it has not been established beyond reasonable doubt that the Accused Brima personally killed any civilians. However, the Trial Chamber is satisfied beyond reasonable doubt, based on the consistent testimony of all three witnesses, that Brima ordered the attack on Fourah Bay.

926. The Trial Chamber further finds, based on the detailed eye-witness account of witness TF1-184 which was not shaken in cross-examination in this regard, that the Accused Kanu reiterated the order to the assembled troops prior to the attack. While both witnesses TF1-334 and TF1-184 testified that the Accused Kanu went on the attack, the Trial Chamber is not satisfied that the Accused Kanu personally killed any civilians.

e. Guard Street

927. At an unspecified point during the AFRC retreat from Freetown, witness TF1-334 encountered ‘Captain Blood’, who was a bodyguard of the Accused Kamara, with seven captured civilians at Guard Street. The witness watched ‘Captain Blood’ shoot and kill three of the civilians and kill the remaining four using a machete.[1755]

(ii) Kissy

a. Good Shepherd Hospital

928. Witness TF1-104 was working as a nurse at the Good Shepherd Hospital in Kissy in January 1999.[1756] He testified that on 18 January 1999, a group of “juntas” went to the Good Shepherd Hospital in Kissy and accused personnel there of treating ECOMOG and Kamajors. They forced everybody out of the hospital – patients, nurses, staff, and visitors – and beat them with a large stick called a ‘coboko’, which has a rope tied to it.[1757]

929. The “juntas” then took Witness TF1-104, along with other civilians, to a certain Pa Zubay’s house a short distance away. At this house there were a number of juntas and commanders including ‘Captain Shepherd’, whom the witness had met previously, and an individual to whom the other juntas called ‘Captain Blood’. The civilians were made to stand against a wall and the juntas opened fire and began shooting randomly from different directions. The witness was injured and indicated wounds on his elbow, knee and right hip for the record during his examination-in-chief. He testified that fifteen civilians were killed as a result of the shooting. [1758]

930. The Trial Chamber finds the elements in relation to Counts 4 and 5 (murder as a crime against humanity and a war crime respectively) have been established beyond reasonable doubt in respect of the shooting by ‘juntas’ at the house of ‘Pa Zubay’.

b. Rogbalan Mosque

931. Witness TF1-334 testified that while the troops were at Kissy Mental Home during the retreat from Freetown in January 1999, ‘Gullit’ called the Operation Commander and one Lieutenant Colonel named ‘Gunboot’ and “other commanders” to him. ‘Gullit’ told the assembled commanders that he had received information that civilians were harbouring ECOMOG forces in mosques. ‘Gullit’ further stated that AFRC troops should shoot and kill people they encounter in mosques, as these people were enemies.[1759] The witness stated that while the area had many mosques, ‘Gullit’ referred in particular to a mosque “down towards Shell Old Road, towards the junction” that was housing “collaborators”.[1760] ‘Gullit’ chose ‘Five-Five’ to lead a group of men including the witness, his superior ‘Supervisor A’ and others to the mosque. As the troops approached the mosque, ‘Five-Five’ instructed them to start shooting at it. The witness stated that the mosque was big and there were many people inside. The troops opened the door and started shooting. The witness observed many people die in the mosque. The troops then withdrew. [1761]

932. On or about 22 January 1999, witness TF1-083 sought refuge from fighting between “rebels” and ECOMOG in Rogbalan Mosque. He encountered many corpses on the premises of the mosque, both inside the mosque itself and within the fenced area surrounding it. The witness estimated that there would have been seventy corpses. He stated that the dead included elderly people, men, women and children.[1762]

933. Witness TF1-021 testified that on a Friday afternoon in January 1999, around half past twelve to one o’clock, unarmed civilian worshippers were gathered at Rogbalan Mosque in Windsor St, Kissy. Over fifteen men armed with guns and machetes, stormed into the compound of the mosque. The men asked the civilians if they were praying, to which the civilians responded affirmatively. The witness stated that the men told the civilians "As you are here now, you are people who voted for Tejan Kabbah. We are going to kill all of you.” The civilians collected money and offered it to their assailants so that they would leave. The men took the money and then began firing indiscriminately, killing people throughout the mosque. According to the witness, the men stated that the killings were not their fault, as they came in peace, but that of President Kabbah, since he did not recognise the People’s Army.

934. The witness testified that he did not know to which group the men belonged as they did not wear identifying clothing and it was difficult to distinguish between the factions. He stated that he was thrown to the ground and the rebels stepped on him, telling him that he would die that way as they did not have any bullets left in their magazines. After the men departed, the witness counted the bodies. He testified that approximately 71 were killed, with 36 bodies inside the mosque, 7 at the back of the mosque, 7 in the toilet and 21 outside the mosque. The witness knew several of the victims personally and gave their names to the Trial Chamber.[1763]

935. In cross-examination, the Brima Defence put to witness TF1-021 a prior written statement in which he said that the attackers of Rogbalan Mosque identified themselves as belonging to the RUF, which the witness did not deny at trial.[1764] Specifically, the witness stated “I know this because when they were addressing us, they told us that they were RUF rebels and that they were People’s Army.”[1765]

936. The Trial Chamber finds the evidence of witness TF1-021 regarding the killings of civilians at the mosque to be clear, consistent and well corroborated by the evidence of TF1-083. The Brima Defence did not challenge either witness on the killing of civilians, but argued that the men responsible were members of the RUF and there is therefore no nexus with any of the Accused.[1766]

937. The Trial Chamber observes that witness TF1-021 testified that the mosque was attacked by RUF rebels, or members of the ‘People’s Army’. Although individual RUF members may have been active in Freetown, the Trial Chamber has found that the fighters present in Freetown in January 1999 were largely members of the AFRC and entirely under AFRC command. The term ‘People’s Army’ was also used by members of the AFRC, particularly during the AFRC government period. The Trial Chamber also recalls that the lack of distinguishing insignia worn by the AFRC and RUF made it difficult for members of the public to identify the perpetrators of crimes by sight.

938. Documentary evidence was admitted which suggests that more than one mosque was attacked during the January 1999 invasion and retreat from Freetown.[1767] However, Exhibit P-19, a map of Freetown, shows that the mosque attacked by witness TF1-334’s group is situated on Whenzle St in Kissy. The Trial Chamber observes that Rogbalan Mosque in Kissy is located on the same street, and is satisfied the reference in the transcript to “Windsor Street” is due to an error. The Trial Chamber is therefore satisfied beyond reasonable doubt that the armed men who attacked Rogbalan Mosque were AFRC fighters as described in the testimony of witness TF1-334.

c. Kissy Mental Home

939. Witness TF1-334 testified that one evening in January 1999, on the day that the AFRC troops arrived at Kissy Mental Home during the retreat from Freetown, the Accused Brima, in the presence of commanders including the Accused Kamara and Kanu, ordered troops to go out from the mental home and “clear up” the area. Brima stated that civilians were to be killed and amputated and houses burned as punishment for their support of ECOMOG.[1768] Specifically, he ordered the witness, ‘Pikin’, ‘Shrimp’, ‘Hassim’ and others to go as far as they could towards “PWD” killing people.[1769]

940. The witness stated that his group accordingly moved from the Kissy Mental Home, along the Old Road, towards Kissy market, where they heard civilians celebrating. The soldiers began firing machine guns at the civilians, killing an unspecified number of them. The troops went as far as Fisher Lane and then retreated to Kissy Mental Home, where they reported to ‘Gullit’ that the mission had been accomplished.[1770]

941. Witness TF1-334 further testified that in this period the AFRC troops held eight captured nuns at Kissy Mental Home. After ECOMOG began bombarding the troops there, two abducted clerics escaped. ‘Gullit’ ordered that the nuns should be killed so as to prevent them escaping and leaking information. Pursuant to this order, Foday Bah Marah a.k.a. ‘Bulldoze’ executed five nuns.[1771] Witness George Johnson also testified that the troops had eight abducted nuns at the mental home. However, he stated that when ECOMOG attacked the troops, Foday Bah Marah killed three nuns and the others escaped. The witness did not state whether this was pursuant to any order.[1772] Witness TF1-184 corroborated the evidence that three nuns were killed when the Nigerians attacked the mental home. He does not state who killed the nuns, but he testified that it was ‘Gullit’ who ordered their execution.[1773]

942. On the basis of the testimony of witnesses TF1-334, George Johnson and TF1-184, the Trial Chamber finds beyond reasonable doubt that three nuns were killed on the orders of the Accused Brima.

943. Witness TF1-153 testified that in January 1999 as the AFRC troops and some captured civilians retreated from Kissy Mental Home area towards the Portee area by the Cotton Tree, the Accused Brima, in the presence of witness TF1-153, shot dead a nun because she was not walking quickly enough.[1774]

d. Rowe Street

944. Witness TF1-084 testified that at unspecified time in January 1999, at Rowe Street in the Kissy area of Freetown, “rebels” in military uniform commanded by a man named Tafaiko captured him, along with seven other civilians, and body-searched them for valuables. The “rebels” then lined up the other seven civilians and shot them dead in front of the witness.[1775]

945. In cross-examination, it emerged that in a prior statement the witness had referred to the rebels in Kissy as ‘RUF’.[1776] He explained that the forces he saw in Kissy were mixed, with some wearing military uniform and others civilian attire on which was written ‘RUF’.[1777] The Trial Chamber recalls that it was often difficult for members of the public to distinguish between AFRC and RUF fighters. In view of this, the Trial Chamber considers the witness’s identification of his attackers to be unreliable.

946. The Trial Chamber notes that while some members of the RUF participated in the attack on Freetown, these individuals were fighting with the AFRC troops.[1778] The Trial Chamber accordingly finds that the perpetrators of the attack were individuals associated with the AFRC troops.

e. Fatamaran Street

947. On approximately 18 January 1999, witness TF1-098, his brother and his cousin were forced by rebels at gunpoint to follow them to a school on Fataraman Street.[1779] Upon arrival at the school, four other civilians captured by the rebels were joined with the witness’s group. A certain Tommy, one of the rebels, amputated the hands of the seven captured persons.[1780] Witness TF1-098’s cousin died as a result of the amputation.[1781]

(iii) Calaba Town

948. Immediately after the withdrawal of the troops from Kissy Mental Home, at Calaba Town, witness Gibril Massaquoi saw a AFRC named “Foday Bah” shoot dead three nuns who supposedly refused to join the retreating troops.[1782] Thereafter, the witness also saw the dead body of a priest lying on the ground. The witness was not present when the priest was shot and does not know who the perpetrator is.[1783]

949. Having carefully considered the evidence of witnesses Gibril Massaquoi, TF1-334, TF1-184 and George Johnson in relation to the killing of three nuns around the time the troops retreated from Kissy Mental Home, the Trial Chamber is not satisfied beyond reasonable doubt that this incident at Calaba Town is different to that described above as taking place at Kissy Mental Home and accordingly makes no additional findings.

(iv) Wellington

950. Witness TF1-085 was abducted by rebels in Wellington in January 1999. She testified that in Wellington, “I saw them burning houses, killing people and looting property.”[1784] The Trial Chamber finds this evidence too general to make any additional finding of unlawful killings. However, the Trial Chamber has considered the witness’s testimony regarding her abduction in its factual findings in relation to outrages on personal dignity.

(v) Findings

951. In light of the foregoing evidence and leaving aside for the present the individual responsibility of the Accused, the Trial Chamber is satisfied beyond reasonable doubt that between 6 January and 28 February 1999, AFRC forces killed at least 145 civilian men, women and children in the city of Freetown and in Kissy, Wellington and Calaba Town in the Western Area, as charged under Counts 4 and 5. The Trial Chamber is further satisfied that these large scale killings satisfy the element of massiveness for the crime of extermination charged under Count 3 of the Indictment. The indiscriminate manner in which the victims were targeted and the fact that the killings occurred over a relatively short period of time establishes that the principal perpetrators of the individual killings intended to contribute to the overall and massive result of these killings.

(h) Port Loko District

952. The Prosecution alleges that “[a]bout the month of February 1999, members of the AFRC/RUF fled from Freetown to various locations in the Port Loko District. Between about February 1999 and April 1999, members of AFRC/RUF unlawfully killed an unknown number of civilians in various locations in Port Loko District, including Manaarma, Tendakum and Nonkoba.”[1785]

953. The Trial Chamber recalls that the Prosecution did not lead evidence of unlawful killings with respect to Tendakum.[1786]

954. In arriving at the following findings, the Trial Chamber has examined the available evidence and relies on the testimony of Prosecution witnesses TF1-334, George Johnson, TF1-157, TF1-023, TF1-253, TF1-256 and TF1-320 and Defence witnesses, DBK-129, DBK-012.

(i) Manaarma

955. Witness TF1-320 testified that on an unspecified date in April 1999, “soldiers” wearing military uniforms brought a number of civilians who had been captured in the surrounding villages to Manaarma. After separating the women from the men, the “soldiers” took an unspecified number of women to a house where they killed some of them with axes and shot dead the others.[1788]

956. In April 1999, witness TF1-253 was abducted on the way to Ro-Makambisa by “rebels” who took him to Manaarma. [1789] As they entered Manarrma, witness TF1-253 saw a pregnant woman whose head had been severed and her stomach opened by the “rebels”.[1790] The Brima Defence submits that the testimony of witness TF1-253 is inconsistent and unreliable.[1791] However, the Trial Chamber is satisfied that the witness’s testimony on this particular incident was not shaken in cross-examination and therefore relies on his evidence.

957. The Prosecution submits that the evidence of Prosecution witnesses TF1-253 and TF1-320, both residents of Manaarma who were abducted by rebels in April 1999 and taken to Port Loko,[1792] establishes that the “rebels” and “soldiers” who attacked Manaarma were in fact AFRC troops en route to Port Loko, where a major attack was staged at the end of April 1999.[1793] The Trial Chamber will thus consider the available evidence on the attacks on Port Loko and Manaarma in order to make a finding on this submission.

958. Witness George Johnson testified that en route to Port Loko, the troops attacked a village where a fat lady was killed by an AFRC captain using a machete.[1794] The witness, who was the commander of the troops at the time, then sent an advance troop to secure the village ahead. He testified that when he subsequently arrived at the next village, he observed a number of dead civilians and ‘Sheriff’ complained to him that ‘Cyborg’ had killed them.[1795] The witness did not give the names of either village. He stated that no other villages were attacked en route to Port Loko.[1796] The witness led the troops to Port Loko, where they fought Malian ECOMOG soldiers and captured a large cache of arms and ammunition and two Malian soldiers.[1797]

959. Witness TF1-334 also went on the operation commanded by George Johnson to Port Loko.[1798] The witness testified that at Port Loko, Junior Lion and the other troops fought the Malians at Shelenka secondary school.[1799]

960. Witness TF1-253 was told by one of the rebels who captured him that he was part of Superman’s group.[1800] However, he stated that “Johnson” and “Sesay” were the “big men” in Manaarma. He described Johnson as fat and black with plaited hair.[1801] “Colonel Sesay” was described as fair in complexion, not overly tall, wearing combat and a ‘cap’ that from the witness’s description sounded like a balaclava.[1802] The witness states that “Johnson” was speaking into a device which the witness’s described as “the thing [...] which is called a solar, normally they put it in the sun”.[1803] The Trial Chamber infers that the witness is referring to a radio. Witness TF1-253 accompanied the troops as their captive to Port Loko. He testified that at Port Loko, the rebels fought the Malians at a secondary school called Schenlenker, at which point he escaped.[1804]

961. Witness TF1-320 also stated that at Port Loko, the rebels fought Malian ECOMOG soldiers at “Sri Lanka”, a place near Low Shell Road.[1805] The Trial Chamber infers that the witness was referring to ‘Shelenker’ or ‘Shelenka’, the school referred to by witnesses TF1-320 and TF1-334.[1806]

962. Although the Trial Chamber has not relied on the testimony of Defence witness DBK-012 in relation to the command structure in Port Loko District, the Trial Chamber notes that the witness went on the operation to Port Loko and testified that the troops attacked Manaarma en route.[1807]

963. On the basis of the evidence of witnesses TF1-253 and TF1-320, the Trial Chamber finds that a group of rebels attacked Manaarma en route to Port Loko, where they engaged the Malian ECOMOG soldiers in combat at Shelenker/Shelenka secondary school. The Trial Chamber is satisfied from the evidence of witnesses TF1-334 and DBK-012 that the group of rebels that attacked Manaarma were AFRC soldiers under the command of ‘Junior Lion’ aka George Johnson. In making this finding, the Trial Chamber has not relied on witness TF1-253’s description of ‘Colonel Sesay’ and ‘Colonel Johnson’, which it found confused and contradictory.

(ii) Nonkoba

964. On the morning of 28 April 1999, “rebels” attacked the village of Nonkoba. Witness DBK-111 and other inhabitants of Nonkoba fled to the bush. The witness later learned that 36 villagers were killed in this attack, including his mother-in-law. He observed several dead bodies with severed heads.[1808]

(iii) Findings

965. By virtue of the foregoing, and leaving aside for the present the individual responsibility of the three Accused, the Trial Chamber is satisfied beyond reasonable doubt that between February and April 1999, in Port Loko District, an unknown number of civilians were unlawfully killed by AFRC troops in Manaarma, as charged under Counts 4 and 5. The Trial Chamber further finds that at least 36 civilians were unlawfully killed in Nonkoba, as charged under Counts 4 and 5. However, on the evidence adduced, the Trial Chamber has been unable to establish beyond reasonable doubt whether the perpetrators of the killings in Nonkoba were members of the AFRC and/or RUF.

B. Rape (Count 6)

1. Allegations and Submissions

966. 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. The sexual violence is alleged to have 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 30 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.[1809]

967. The Prosecution submits that the evidence presented establishes beyond reasonable doubt that the legal requirements for rape as a crime against humanity are met.[1810] With regards to the mens rea element, the Prosecution argues that the only reasonable inference from the evidence is that the perpetrators had the required mens rea. Specifically, the Prosecution alleges that, there is no doubt that the perpetrators knew of the absence of consent of the victims.[1811]

968. Insofar as the Defence challenge the testimony of witnesses with regard to specific incidents of rape, the Trial Chamber has discussed these submissions as they arise in the evidence below. Submissions by the Parties on the applicable law have been discussed above.

2. Evidence and Deliberations

(a) Kono District (14 February 1998 – 30 June 1998)

969. The Indictment alleges that between about 14 February 1998 and 30 June 1998 members of the AFRC/RUF raped hundreds of women and girls at various locations throughout Kono District including Koidu, Tombodu, Kissi-town (or Kissi Town), Foendor (or Foendu), Tomendeh, Fokoiya, Wondedu, and AFRC/RUF camps such as “Superman camp” and Kissi-town (or Kissi Town) camp.[1812]

970. The Prosecution has conceded that there was no evidence of rape in respect of Tomendeh, Fokoiya, “Superman Camp”/Kissi Town Camp, Kissi Town, or Tombodu.[1813]

971. The Trial Chamber has carefully considered the evidence on rape, a crime against humanity, relative to Kono District of Prosecution witnesses TF1-198, TF1-206, TF1-272, TF1-019, TF1-033, and TF1-217 and Defence witnesses DBK-129, DAB-025, DAB-115, DAB-114, DBA-113, DAB-123, DAB-128, DSK-103, DAB-127, DAB-134, DAB-129, DAB-101, DAB-125, and DAB-124. The Trial Chamber finds the evidence given by these witnesses with regards to the commission of crimes under Count 6 relates to locations not specified in the Indictment and therefore makes no findings on the basis of their evidence.

972. In arriving at its factual findings, the Trial Chamber has taken into consideration the evidence of Prosecution witnesses TF1-217, TF1-019, TF1-076 and Defence witnesses DBK-117.

(i) Koidu

973. Prosecution witness TF1-217 testified that “juntas” and “rebels” under the command of a certain ‘Akim Sesay’ attacked Koidu Town and raped young girls in February or March 1998.[1814] On cross-examination, witness DBK-117 gave similar evidence. The witness, who was based in Koidu from April 1998 until it was overtaken by ECOMOG[1815] and again when Koidu was recaptured by ‘Superman’ in December 1998, testified that the RUF raped women and girls when they went on patrols in Kono District.[1816] The Trial Chamber finds that the evidence of both Prosecution witness TF1-217 and Defence witness DBK-117 to be vague and insufficient to satisfy the actus reus and mens rea elements of the crime of rape.

974. The Trial Chamber also notes the evidence of Prosecution witness TF1-019 but finds that the relevant aspects fall outside of the indicted period for Kono District and therefore makes no findings in this regard.[1817]

(ii) Foendor / Foendu

975. Witness TF1-076 testified that on an unknown date in 1998, when she was approximately 15 years old, she fled her village of Tombodu and went towards Foendor with her sister, her brother-in-law and her uncle. They were captured by three “rebels” in the bush just outside of Foendor. The witness described the rebels as wearing combat trousers or shorts and t-shirts. They were carrying guns and a cutlass and were speaking Liberian English. One of the rebels raped the witness. He cut off her skirt and underwear with a knife and penetrated her with his penis. The witness bled and became light-headed.[1818] On cross-examination, the Defence put to the witness a prior statement in which she stated that the rebel removed her “lappa”.[1819] The Trial Chamber finds that there is no meaningful difference between a “lappa” and a skirt and therefore this inconsistency does not undermine the credibility of the witness.

976. The Trial Chamber is satisfied on the basis of the witness’s description of the perpetrators as “rebels”, wearing combat trousers or shorts and t-shirts, carrying guns and a cutlass and speaking Liberian English that they were members of either the AFRC or the RUF.

977. The Prosecution argues that it did not attempt to identify specifically the attacker of witness TF1-076, but submits that the attacker was a member of the Junta under the command of both AFRC and RUF commanders.[1820]

978. The Trial Chamber notes that the Prosecution in its Final Brief listed the preceding evidence of witness TF1-076 as having occurred in Tombodu.[1821] The Trial Chamber finds this is a mischaracterisation of the evidence. The witness clearly testified that she left Tombodu and was in the bush near Foendor when she was attacked. The Trial Chamber also notes that the Prosecution conceded that it did not lead evidence on Count 6 in Tombodu.[1822]

979. The Trial Chamber finds the testimony of witness TF1-076 to be credible; however, the Prosecution failed to establish that the evidence of the witness falls within the indicted period for Kono District (14 February through 30 June 1998). The witness testified that the events occurred in 1998 but did not provide any further direct or circumstantial evidence to guide the Chamber. Where two reasonable inferences are possible on the available evidence, the Trial Chamber is bound to interpret the evidence to the benefit of the Accused. The Trial Chamber therefore makes no further findings on the evidence of witness TF1-076.

(iii) Wondedu

980. In making its factual findings in Wondedu, the Trial Chamber takes into consideration the evidence of Prosecution witness TF1-217 who testified that women, including his sister, were abducted from Wondedu.[1823] However, no further evidence was adduced which would suggest that the women he knew were raped.

(iv) Findings

981. By virtue of the foregoing the Trial Chamber is not satisfied that the elements of rape are established in relation to Kono District.

(b) Koinadugu District (14 February 1998 – 30 September 1998)

982. The Indictment alleges that between about 14 February and 30 September 1998 members of the AFRC/RUF raped an unknown number of women and girls in locations in Koinadugu District including Kabala, Koinadugu, Heremakono and Fadugu.[1824]

983. The Prosecution has conceded that it did not lead evidence of rape in respect of Heremakono.[1825]

984. The Trial Chamber has carefully considered the evidence on rape, a crime against humanity, relative to Koinadugu District of Prosecution witnesses TF1-153, TF1-033, TF1-199 and Defence witnesses DAB-090, DAB-086, DAB-088 and DAB-089. The Trial Chamber finds the evidence given by these witnesses relates to locations not specified in the Indictment and therefore makes no findings on the basis of their evidence.

985. In coming to its findings in relation to Koinadugu District, the Trial Chamber has examined the evidence of Prosecution witnesses TF1-199 and TF1-209 and Defence witnesses DBK-083 DAB-079, DAB-081, DAB-078, DAB-085 and DBK-156.

(i) Kabala

986. Defence witness DAB-156 testified that after the AFRC was overthrown in Freetown in February 1998 but before the rainy season, she was raped by ‘Junior Lion’[1826] in Kabala. He held her, raped her, banged her on the forehead where she still has a scar, and knocked out some of her teeth.[1827] The Trial Chamber is satisfied that the actus reus and mens rea of rape are satisfied on the basis of this evidence.

987. Witness DBK-083 testified that sometime after the AFRC and RUF were forced to withdraw from Freetown,[1828] a column of troops passed by his farm outside of Kabala. The witness testified that the troops were led by SAJ Musa and Superman. At that time, the witness heard reports of rapes.[1829]

988. The Trial Chamber also notes, but does not rely on, the testimony of witness TF1-199 with regards to a possible incident of rape in Kabala. The Trial Chamber finds that the relevant evidence falls outside of the indicted period. The witness testified that he came to Kabala in 1998. While no specific date was given by the witness of his arrival, the Trial Chamber notes the witness stated that he was abducted by the AFRC/RUF in Bombali District at Christmas time 1998 and travelled with the AFRC/RUF to several places prior to arriving in Kabala.[1830] As such, he could not have been in Kabala prior to 30 September 1998, the end of the indicted period for Koinadugu.

(ii) Koinadugu Town

989. Witness TF1-209 testified that she was “in Kabala in Koinadugu Town” in August of 1998 when the witness heard and saw “rebels” carrying guns shooting outside her home. The “rebels” were dressed in combat and civilian clothes with pieces of red and white cloth tied around their heads.[1831] The witness fled. The next day, the witness was at her mother’s farm when she, her husband, her six year old child and some neighbours were attacked by “rebels”.

990. The Trial Chamber notes that the witness testified in chief that the timeframe of these events was August 1998 but that on cross-examination, when asked whether she remembered when she was captured, she stated that she was not sure of the dates because she had never been to school, and that she could not remember the year. When asked if she remembered August 1998, the witness stated that she remembered August was in the rainy season and that was the time in which she was captured.[1832] The Trial Chamber notes, in light of the repeated evidence and references before it, that the annual rainy season in Sierra Leone extends from May to September. The Trial Chamber accepts that witness TF1-209 has little formal education and that her indication of August is not inconsistent with the Chamber’s determination of the rainy season. The Trial Chamber is therefore satisfied that it can rely upon the timeframe adduced of August 1998.

991. The witness described the persons who attacked her as “rebels and soldiers” and as juntas”. They were armed.[1833] The witness saw four rebels arrive; two went towards a neighbouring farm and two remained at the witness’s mother’s farm.[1834] Two rebels raped the witness in the presence of her husband. The two rebels told her to “bow down” and they removed her “pants” and “lappa”. The witness stated that the rebels and raped her “as their wife.” The witness was pregnant at the time of the rapes. She stated that her “pregnancy was wasted”[1835] which the Trial Chamber understands to mean that she miscarried as a result of the rapes.

992. The witness testified that the rebels beat her husband to death with a mortar pestle and shot her child dead. A rebel cut the witness’s hand with a knife when she tried to hold on to her child.[1836] The witness also testified that she saw the rebels rape other women and children during the attack. She was unable to estimate how many persons were raped. She estimated that the children who were raped were approximately nine to ten years old.[1837]

993. After the attack, the rebels looted some belongings, such as rice, and forced civilians to carry those belongings to town. In town, the witness learned that the men who raped her belonged to Superman and SAJ Musa’s groups.[1838]

994. The Trial Chamber notes that the witness’s testimony was unclear with regards to her location at the time of the attacks. She testified that she was “in Kabala in Koinadugu” at the time that she first saw rebels in August 1998, but then continued to respond to the Prosecutor’s questions with regards to “Koinadugu.”[1839] She also testified that the rebels she saw at this time told her they were going to Kabala.[1840] On cross-examination, the witness clarified that in August 1998 in the rainy season she was not in Kabala, but in Koinadugu.[1841]

995. On the second occasion the witness saw rebels, at the time that according to her testimony she was raped, the witness testified she had fled to her mother’s farm but did not give the precise location of the farm. She subsequently testified that after the attack she was brought “to town” by the rebels.[1842] Although she did not explicitly specify which town she was referring to, the Trial Chamber infers, as discussed below, that she was taken to Koinadugu Town. The Trial Chamber similarly infers that witness’s mother’s farm is located in the environs of Koinadugu Town.

996. The Trial Chamber finds the witness’s evidence with regards to this attack credible and not significantly shaken on cross-examination. From the description of her attackers as armed “rebels and soldiers”, as “juntas”, and as members of ‘Superman’ and SAJ Musa’s groups, known commanders of the RUF and the AFRC respectively, the Trial Chamber is satisfied that the perpetrators of the attack belonged to either the AFRC or the RUF. The Trial Chamber infers from the context of violence and coercion that the witness did not and could not have validly consented to the sexual intercourse. The Trial Chamber is thus satisfied that the actus reus and mens rea elements of rape are met with regards to this incident.

997. The Trial Chamber also considers the further evidence of witness TF1-209 suggesting acts of sexual violence occurred subsequent to this attack. The witness testified that captured civilians, including herself, were taken “to town” where the witness indicated that she was then held by two persons she named as ‘Jabie’ and ‘Allusein’. The witness testified that the person who captured her took her to a house where the witness cooked and laundered for him. The witness testified that he turned her into his “wife” which she explained meant that he would have sex with her whenever he felt like it.[1843] The witness indicated that this person was ‘Jabie’. The witness testified that following ‘Jabie’s death, she was held and abused by ‘Allusein’.[1844]

998. The witness testified that she had seen ‘Jabie’ and ‘Allusein’ before, when she was captured and raped at her mother’s farm outside of Koinadugu Town. The witness testified that she recognised them as the rebels who had beaten her husband to death and ‘Jabie’ as the rebel who had shot her child dead.[1845]

999. The witness was strenuously challenged on the periods of time and sequence of her interactions with ‘Jabie’ and ‘Allusein’. She remained calm and unshaken in her answers but appeared to have some difficulty in conveying what exactly she meant. However, the Trial Chamber is satisfied that the witness did not resile from her evidence in chief that she entered into relationships by force or duress with ‘Jabie’ for three months from the time of her capture to the time of ‘Jabie’s’ death and subsequently with Allusein for one month.[1846]

1000. With regards to the affiliations of the two men, the witness first testified that ‘Jabie’ was a member of SAJ Musa’s group and that ‘Allusein’ was a member of ‘Superman’s group.[1847] The witness subsequently testified that the person who took her to his house and made her into his wife upon her arrival in Koinadugu Town was a member of ‘Superman’s group.[1848] This is inconsistent with her statement that she was first with ‘Jabie’ and that he belonged to SAJ Musa’s group. The witness later reiterated that ‘Allusein’ was part of Superman’s group.[1849] She also testified that after she was captured and taken to Koinadugu Town, she frequently saw a man she referred to as ‘Five-Five’, who was one of several rebels who told her about atrocities they had committed together, but that this man had left Koinadugu Town by the time the witness was with ‘Allusein’.[1850] On cross-examination Counsel put it to the witness that she changed her reference in a prior statement from “Fire-Fire” to ‘Five-Five’. The Trial Chamber is satisfied by the witness’s clear statements that ‘Five-Five’ and “Fire-Fire” were separate persons with different names and that “Fire-Fire” was a small, short boy who was known for killing and to whom she had never spoken.

1001. With regards to her location during these events, the Trial Chamber notes that witness TF1-209’s testimony was at times unclear. The Trial Chamber has found that following the attack at her mother’s farm the witness was brought to Koinadugu Town by the rebels. The witness testified that some time after she had been held for four months, she was present in Koinadugu when members of the CDF came from Kabala and there was a fight in which two members of the CDF were killed[1851] and that sometime following that Koinadugu was completely burnt.[1852] The witness testified that following this she went to a village near Koinadugu called Kalkoya.[1853]

1002. On cross-examination when asked by Counsel where she was when she was with the rebels ‘Allusein’ and ‘Jabie’ the witness replied, “Koinadugu. In the Koinadugu District or Kabala.” Counsel for Kanu then asked if she was in Kabala, and the witness replied, “Yes, in my village.”[1854]

1003. Later on cross-examination the witness stated that she was in Koinadugu at the time after SAJ Musa and Superman fought and when SAJ Musa went to Morya.[1855] Counsel and the witness then had the following exchange:

Q: Madam Witness, when you say Koinadugu, do you mean the district or a town in Koinadugu District?

A: It was a town. The town is also called Koinadugu District. When you talk of Kabala, it is in the Koinadugu District. Kabala. That has the name Koinadugu District. They only say it is Kabala.

Q: You see what I am asking you, when you talk about Koinadugu, do you mean Kabala?

A: No. The Koinadugu District in Kabala.

Q: Is there a separate town, apart from Kabala, called Koinadugu?

A: Yes, that is my own village. That is where my father was born.

Q: Your village is called Koinadugu?

A: Yes.[1856]


 

1004. On further cross-examination by Counsel for Kanu the witness stated that she stayed with ‘Jabie’ and ‘Allusein’ in Koinadugu Town[1857] and that during the whole of the three months she was with ‘Jabie’ she stayed primarily in one house in Koinadugu Town, occasionally going during the day to farms in the bush.[1858]

1005. The Trial Chamber accepts that the witness may have been nervous to appear before it and that it may have been difficult for her to testify to events that would have been extremely traumatic. The Trial Chamber also notes that the witness’s testimony was being translated and that the witness is uneducated, all of which may account for some apparent inconsistencies in her testimony. The Trial Chamber found her to be reliable and unshaken in her testimony and having carefully reviewed the evidence of the witness, is satisfied of the following:

1006. Witness TF1-209 was abducted and brought to Koinadugu Town in approximately August, 1998, by members of the AFRC/RUF. In Koinadugu Town she stayed first with a certain ‘Jabie’ for a period of three months and subsequently with a certain ‘Allusein’ for one month.

1007. The Trial Chamber is satisfied that the witness’s identification of ‘Jabie’ as one of the persons present when she was attacked at her mother’s farm; her description of attackers at her mother’s farm as armed “rebels and soldiers”, “juntas”; and her description of ‘Jabie’ as being a member of SAJ Musa’s group or Superman’s group; are consistent with a finding that ‘Jabie’ was a member of the AFRC or RUF.

1008. The Trial Chamber is satisfied from the repeated references to Koinadugu Town and the witness’s detailed descriptions of events that occurred there in her presence, that she was held by ‘Jabie’ in Koinadugu Town.

1009. Finally, the Trial Chamber is satisfied on the basis of the testimony of the witness that ‘Jabie’ repeatedly had sex with her and that given the context of violence, to wit, the previous attacks against the witness, the death of her husband and her child at the hands of ‘Jabie’, her abduction and her subsequent confinement, that the witness could not have validly consented to the repeated acts of sexual intercourse. The Trial Chamber is thus satisfied that the actus reus and mens rea elements of rape are met with regards to this incident.

1010. The Trial Chamber notes that further evidence was given by witness TF1-209 regarding possible acts of sexual violence perpetrated by ‘Allusein’ in Koinadugu Town following the death of ‘Jabie’. However, the Trial Chamber finds that this evidence falls out of the indicted period. The Trial Chamber has accepted that the witness was attacked in or about August, 1998 and after this attack she was held by ‘Jabie’ until he was killed, a period of three months. The Trial Chamber therefore concludes that ‘Jabie’s death must have occurred some time in November, 1998 and that any events testified to by the witness occurring in the month after this point fall well outside of the indicted period for Koinadugu District which ends on 30 September 1998. The Trial Chamber therefore makes no findings with regards to Count 6 on the basis of this testimony.

1011. The Trial Chamber finds that the evidence of witness TF1-209 is generally supported by that of Defence witness DAB-079 who testified that he was based in Kabala and was operating with the CDF shortly after the AFRC Coup in May 1997.[1859] The witness’s professional capacity, given to the Trial Chamber in closed session,[1860] put him in a position to receive information from CDF contacts about the activities of other parties in the region including SLA, AFRC and ECOMOG forces. The Trial Chamber is satisfied that the witness had indirect access to approximately 1000-1700 people and received weekly reports from Koinadugu Town as well as other locations such as Kabala, Yiffin and Geberefed. The witness testified that on the basis of these reports and his own knowledge that members of the RUF committed rapes but that the SLAs were more disciplined.[1861]

1012. The witness testified that in Kabala, the “SLA”s, including the commanders KIS Kamara and SAJ Musa, arrived after the AFRC was driven out of Freetown by ECOMOG in February 1998.[1862] They arrived on approximately the 15th of February.[1863] A week after the SLAs arrived, starting on approximately February 22nd, the RUF also began to arrive, followed by Sam Bockarie on approximately 24 May.[1864]

1013. The witness testified that prior to the arrival of the RUF, the relationship between the civilians and the SLAs in Kabala was “cordial.” In particular, the witness recalled that SAJ Musa held a meeting in the late Chief’s compound in Sengbe in which he told his soldiers not to intimidate civilians.[1865] The witness was present at this meeting and testified that there were a large number of SLA officers at the meeting. The witness understood the meeting was called by SAJ Musa in response to reports to him from civilians in Kabala that an SLA officer had attempted to steal money from a civilian.

1014. The witness testified that by contrast, when the RUF arrived, Kabala became “extremely chaotic”. The RUF contingent included ‘Superman’, ‘Johnny Hemoe’ and Captain Rahman D. Kobah a.k.a. ‘Blackman’. The witness testified that during this time, the RUF were known to loot property, beat civilians, enter houses without permission and steal food and that there were a number of children with weapons among them. On cross-examination the witness testified that the RUF committed rapes. The witness testified that he knew of one rape in particular as he was informed of it by a woman who had been raped by ‘Superman’. The witness estimated that members of the RUF raped approximately four to five women. The witness stated that the rapes motivated some civilians in Kabala to form the CDF.[1866]

1015. Later in his evidence in chief, the witness suggested that rape was a trademark of the RUF. The witness testified that in the reports he received on the activities of groups in the area his sources often referred generally to “rebels” which could denote either the AFRC or the RUF. Nevertheless, the witness testified that although the groups were together, each group had its trademark. The SLAs were more restrained whereas the RUF would attack more indiscriminately and more rampantly. The SLA tended to loot food while the RUF tended to burn down houses and to rape.[1867]

1016. Witness DAB-079 also testified that some SLAs stayed in Kabala for eight to nine months and that during that time he did not see any SLAs perpetrating sexual violence.[1868]

1017. The Trial Chamber finds the evidence of witness DAB-079, although largely hearsay, to be credible and consistent. The witness was not significantly shaken on cross-examination. The Trial Chamber is of the opinion that the testimony given by the witness relating to rapes alleged to have been committed by members of the RUF is insufficient to support the actus reus and mens rea elements of the crime, and does not rely upon it in this regard.

1018. While the Trial Chamber does not make any findings which would support a finding of rape on the basis of witness DAB-079’s evidence, the Trial Chamber notes that the implication that the RUF may have committed rapes in Koinadugu District, including Koinadugu Town, during this time period generally supports the evidence of rapes committed against witness TF1-209 and others, the perpetrators of which the Trial Chamber has found belonged to the RUF or the AFRC.

1019. The Trial Chamber accepts the evidence of witness DAB-079 that SAJ Musa instructed his troops not to intimidate civilians but notes that this general prohibition, in and of itself, does not create a reasonable doubt with regards to the veracity of the incidents of rape described by described by witness TF1-209. Similarly, the Trial Chamber finds that the fact that witness DAB-079 did not witness any acts of violence committed in Kabala by SLAs does not in and of itself create a reasonable doubt that in fact no rapes were committed by members of the AFRC during this time period either in Kabala or elsewhere in the District. The Trial Chamber accepts that the witness was in a particular position to receive wide-ranging information on the activities of parties to the conflict in and around Kabala, including Koinadugu Town, but the Defence has not demonstrated that this information network was in any way exhaustive. Nor has the Defence demonstrated that the information network systematically collected information on possible crimes committed by the parties to the conflict. The witness’s testimony therefore does not create a reasonable doubt with regards to the specific incidents of rape to which witness TF1-209 testified in great detail.

1020. Finally, the Trial Chamber notes that the evidence of both witness TF1-209 and witness DAB-079 is generally supported by that of Defence witness DAB-081 who testified that while he was in captivity in Koinadugu Town after August 1998, he did not hear of SAJ Musa ordering any harassment of civilians; however, he heard that the RUF were committing rapes.

(iii) Fadugu

1021. The Prosecution asserts that there were two attacks in Fadugu; one in May and one in September, 1998.[1869] Noting the evidence of witness DAB-078 who testified that he did not see or hear about any rapes when Fadugu was attacked on 22 May 1998,[1870] the Trial Chamber finds no evidence was led of rape in Fadugu during the May attack.

1022. With regards to the attack in September, the Trial Chamber has carefully reviewed the testimony of witness DAB-078 who also testified that he was in Fadugu Town when ECOMOG forces in the town were attacked on 11 September 1998. The witness testified that he hid during the attack and when the gunfire subsided he ran to a house. When he arrived he found four men who were attempting to rape a girl. The witness described two of the men as wearing soldier’s uniforms and two in civilian clothes. Three of the men were armed with guns.[1871] The Trial Chamber is satisfied from this description and from the context of the attack that the men were members of the AFRC or RUF.

1023. The men detained the witness and forced him to watch as they raped the girl.[1872] The witness testified that the girl died from the rape due to excessive bleeding. After the attack, the witness did not see the men again. The witness later met a woman in the bush who told him that the rebels had called a meeting where ‘Savage’ introduced himself as the commander of the attack. His second in command was ‘Ishmael’.[1873] The witness knew that ‘Savage’ and ‘Ishmael’ were SLAs “from the discussion with the men.”[1874] The Trial Chamber finds the testimony of witness DAB-078 to be detailed, consistent and credible and that the actus reus and mens rea of rape are satisfied with regards to this incident.

1024. The Trial Chamber has carefully reviewed the testimony of Defence witness DAB-085 who testified that between February and September 1998, he did not see or hear about any rapes or sexual violence by members of the AFRC.[1875] The Trial Chamber finds that this evidence, though credible, does not raise reasonable doubt as to the testimony given by witness DAB-078 as the witness did not provide any evidence that he would have been in a position to know whether or not the incident described by witness DAB-078 in fact occurred.

1025. The Trial Chamber notes that Prosecution witness TF1-199 also gave evidence of rape in Fadugu[1876] but the Chamber has not taken this evidence into consideration in its factual findings on Count 6 as the evidence relates to events which fall outside of the indicted period. The witness testified that he was abducted at Christmas time, 1998, in Bombali District and travelled to several places before arriving in Fadugu.[1877] As such, it is impossible that he could have been in Fadugu prior to the end of the indicted period, 30 September, 1998.

(iv) Findings

1026. By virtue of the foregoing the Trial Chamber is satisfied that the elements of rape are established in relation to Koinadugu District.

(c) Bombali District (1 May 1998 – 30 November 1998)

1027. The Indictment alleges that between about 1 May 1998 and 30 November 1998 members of the AFRC/RUF raped an unknown number of women and girls in locations in Bombali District including Mandaha and Rosos (or Rosors or Rossos).[1878]

1028. At the Motion for Acquittal stage the Prosecution conceded that there was no evidence of rape in respect of Mandaha.[1879]

1029. The Trial Chamber has carefully considered evidence relevant to the crime of rape in Bombali District of Prosecution witnesses TF1-334 and TF1-033 and Defence witnesses DBK-090, DBK-094, DBK-086, DBK-102, DBK-089 and DBK-101. The Trial Chamber finds the evidence given by these witnesses relates to locations not specified in the Indictment and therefore makes no findings on the basis of their evidence.

1030. In arriving at its factual findings, the Trial Chamber has taken into consideration the evidence given by Prosecution witnesses TF1-269, TF1-267, TF1-033 and George Johnson and Defence witness DBK-113.

(i) Rosos

1031. Prosecution witness TF1-269 testified that she was living in Rosos during the war when, during the rainy season, “rebels” entered the town and captured her. The Trial Chamber is satisfied that the time period described by the witness is May through July 1998. The witness testified that some of the rebels were wearing vests and some were wearing combat. Three of the rebels raped her. One of the rebels had a gun and the other had a knife. After they had raped her, a rebel pushed her to the ground and cut her in the back of the neck.[1880] The existence of a scar on the witness’s body was noted by the Chamber.[1881] The witness testified that two of the rebels convinced the others not to kill her.

1032. The three rebels spoke to the witness in Temne and asked her to show them where the other civilians were hiding. The witness took them to a nearby area; however the civilians were not there. Rather, there were only more rebels. One of these rebels, whom the witness described as wearing a T-shirt, told the witness to take his penis in her mouth. She refused and the rebel said he would have her killed. The rebel put his penis in her mouth and tried to rape her vaginally. When the witness resisted the rebel brought her over to another group of rebels. The witness testified that some of these rebels were armed with guns, some with sticks and some with knives and they were wearing a mix of combat and civilian clothes. One of these rebels hit the witness’s head and left shin with a stick. The witness was unable to walk and her leg remains scarred. The scar on the witness’s left shin was noted by the Trial Chamber.[1882] After she was beaten the witness was raped twice more. The witness described the last rebel who raped her as wearing civilian dress.[1883] Altogether, the witness was raped by five rebels.[1884]

1033. The Trial Chamber finds the evidence of witness TF1-269 to be detailed and consistent. The Defence was unable to adduce any major inconsistencies in her testimony during cross-examination. As such, the Trial Chamber finds the evidence described to be credible and that the actus reus and mens rea of rape are satisfied on the basis of her evidence.

1034. Prosecution witness TF1-267 testified that she was at her home in Rosos in 1998, during the time when farms were being burnt in the countryside, when people from the neighbouring village came and told her and the other villagers that “rebels” were attacking the area and urged them to leave. The witness left Rosos with her family and hid in the bush.[1885] Several days later, when the witness and her family were drying their belongings after a “big rain”[1886] in a nearby area called Rotu, rebels and soldiers attacked. The witness testified that one of the attackers wore a soldier’s fatigue cap, another wore trousers and combat fatigue, and another had “big shoes that they wore”.[1887] On cross-examination, the witness stated that she was able to identify SLA soldiers even though she had not seen them before and she clarified that one of the soldiers was wearing a cap and trousers which were both “military fatigue” and that others were wearing big black boots.[1888] The witness explained that others wore civilian clothes.[1889]

1035. The witness tried to run away, but a soldier kicked her and she fell down. The soldier tore off all her clothes, including her “knicker”[1890] - which the Trial Chamber understands to mean underwear - and brutally raped her. The witness stated, “he took his penis and thrust it into my vagina and started pounding me like he was pounding mud...he did not sex me as people do normally. He did it abnormally”.[1891] The witness was then raped by another rebel. She tried to fight him but he pinned her back on the ground. A third rebel - who was armed, came and told the witness, “If you open your mouth, I will shoot you dead” and then raped her. The witness testified that she experienced great pain. A fourth rebel came and the witness tried to get up, but as she bent to rise “somebody” pushed her back down onto her back. The fourth rebel also raped the witness. She was afraid he would kill her and she could not resist. The witness testified that the last rape was particularly painful. She stated, “it seem[ed] at though all my guts were coming out”[1892] When the rebels left, the witness tried to get up but she fell back down again as she was so weak.[1893] The Trial Chamber is satisfied on the basis of this evidence that the actus reus and mens rea of rape are proven.

1036. The witness testified further that when the rebels left the village, her daughter ran to her and told her that she too had been raped by two rebels from the same group – the only group of rebels to come to Rosos that day.[1894] The witness’s daughter told her that “they” stuffed her mouth with cloth and raped her one after the other. The witness saw that her daughter was bleeding from her vagina. Prior to this incident, her daughter was a virgin.[1895]

1037. The Trial Chamber notes that in her evidence-in-chief, the witness refers to her daughter alternately as her “sibling”, “daughter” and “lady”.[1896] On cross-examination the witness adopted prior statements which use the term “daughter”.[1897] The Trial Chamber notes that the witness testified in Krio which was translated into English. The Chamber is satisfied that the various terms used do not undermine the credibility of the witness and that a girl that the witness knew very well was raped that day. The Trial Chamber finds the evidence given by witness TF1-267 in chief to be highly detailed and coherent and the witness was not shaken on cross-examination. The Trial Chamber therefore finds the evidence to be credible and is satisfied on the basis of this evidence that the actus reus and mens rea of rape are satisfied.

1038. The evidence of Prosecution witnesses TF1-269 and TF1-267 is supported generally by that of Prosecution witness TF1-033 who testified to being with AFRC troops at Rosos during the rainy season in 1998.[1898] He testified that rape was widespread throughout the time he was in captivity with the AFRC troops.[1899]

1039. Prosecution witness, George Johnson aka ‘Junior Lion’, testified that towards the end of April or early May 1998, when the AFRC advanced to Rosos, he was appointed as a Provost Marshal in charge of discipline to ensure that “jungle justice” was adhered to. The witness testified that “jungle justice” included a prohibition against rape during operations. Punishment for breaching “jungle justice” included public flogging or death.[1900] The Trial Chamber finds that the mere prohibition of rape does not create any doubt as to whether the incidents of rape testified to in great detail by Prosecution witnesses TF1-269 and TF1-267 in fact occurred.

1040. The Trial Chamber has carefully examined the evidence of witness DBK-113, who testified that he went to Rosos with the AFRC and stayed there for about three or four months.[1901] On cross-examination, the witness testified that he did not see or hear about any rapes of female civilians at Rosos.[1902] In the absence of evidence establishing that the witness was in a position to broadly determine whether rapes were or were not occurring and given the highly detailed and credible evidence of Prosecution witnesses to the contrary, the Trial Chamber finds that this evidence does not raise reasonable doubt that rapes did in fact occur in Rosos at this time.

(ii) Findings

1041. By virtue of the foregoing the Trial Chamber is satisfied that the elements of rape are established in relation to Bombali District.

(d) Freetown and Western Area (6 January 1999 – 28 February 1999)

1042. The Indictment alleges that between 6 January 1999 and 28 February 1999 members of the AFRC/RUF raped hundreds of women and girls throughout the city of Freetown and the Western Area.[1903]

1043. In arriving at its factual findings in Freetown and the Western Area, the Trial Chamber has taken into consideration the evidence given by Prosecution witnesses TF1-334, TF1-024, Gibril Massaquoi, TF1-033, TF1-153, TF1-083 and Defence witnesses DBK-012 and DBK-126.

(i) State House

1044. The Prosecution submits that there is evidence that all three Accused committed rape or instigated or aided and abetted the sexual violence at the State House and elsewhere during the invasion and retreat.[1904] The Prosecution further submits that in January 1999, the three Accused were at State House where soldiers brought and engaged women in forceful sexual intercourse.[1905]

1045. Witness TF1-334 testified that on 6 January 1999, he saw “soldiers” bring an unknown number of abducted women to rooms within the State House and rape them there.[1906] He testified that the most beautiful ones were brought to the senior commanders, including ‘Gullit’, ‘Bazzy’ and ‘55’.[1907] Witness TF1-334 saw ‘Gullit’ with a girl who told the witness that she was in Form Two;[1908] that is, approximately 12 years old.[1909] The witness did not see ‘Gullit’ abduct the girl.[1910] The girls with ‘55’ and ‘Bazzy’ were also very young school girls.[1911] The girl with Bazzy was approximately 12-15 years old.[1912] Gullit was with his girl up to Makeni; ‘55’ stayed with his girl until the retreat from Freetown; and ‘Bazzy’ was with his girl until Westside.[1913] The Trial Chamber has previously considered general issues of credibility with regards to witness TF1-334 and finds the evidence given by him with regards to rapes at the State House to be reliable. However, the Trial Chamber finds this evidence insufficient to prove the actus reus and mens rea of rape.

1046. The evidence of witness TF1-334 is generally supported by that of witness TF1-024 who testified that on 8 January 1999,[1914] he was captured by a group of rebels and soldiers.[1915] The Trial Chamber notes that the witness describes his abductors variously as “rebels and soldiers [... ] combin[ed] together”, as “rebel boys”, as “rebels and soldiers [...] all mixed together”. The witness also describes them as wearing “ECOMOG” uniforms and speaking Liberian English.[1916] The rebels and soldiers took the witness to State House where he was detained for four nights in a kitchen on the ground level.[1917] Through the kitchen window, the witness testified that he could see women and girls being raped[1918] by “Gullit’s boys” every night in the compound.[1919] He heard the women cry and heard the girls saying “We do not agree. We are school-going girls.” (“A no de gri. Mi na small pikin.”)[1920]

1047. The witness testified that he saw ‘Gullit’ twice at the State House.[1921] The rebels called him “Honorable Gullit” and he was “commanding his boys.”[1922] When ECOMOG forces approached the State House, ‘Gullit’ ordered the rebels to leave and left together with them.[1923]

1048. The Trial Chamber notes that on cross-examination, the witness testified that the girls who were raped were given 5000 leones, but that this was not pay.[1924] The Trial Chamber finds that given the overwhelmingly coercive environment and the suggestion of the young age of the victims, no attribution of consent to the sexual acts can be derived from this payment. The Trial Chamber is of the opinion that the testimony of witness TF1-024 is detailed and coherent. The witness was not shaken on this evidence on cross-examination. The Trial Chamber accepts this evidence as credible. The Trial Chamber is satisfied that the actus reus and mens rea elements of rape are satisfied on the basis of this evidence.

1049. The evidence of witnesses TF1-334 and TF1-024 is also generally supported by Prosecution witness Gibril Massaquoi who testified that while the three Accused were in command at State House in January 1999, he heard complaints from civilians that “Military Police” came into people’s homes “to look for girls”.[1925] The witness heard a civilian complain to the Accused Kamara about looting and entering homes at night. The witness did not see or hear of anyone being punished for looting or entering houses looking for women in Freetown.

1050. By contrast, the Trial Chamber notes that a number of witnesses testified that they were not aware of any rapes occurring at State House in early January, 1999.

1051. Prosecution witness TF1-033 testified that he was at State House with the AFRC troops on 6 January 1999[1926] and that he did not witness any rapes while he was there.[1927]

1052. Defence witness DBK-012, an ex-SLA who was a member of the AFRC during the war, similarly testified that he did not see or hear of any raping going on at State House during the invasion of Freetown in January 1999.[1928] He was neither able to confirm or deny that young girls were brought to State House by the AFRC to be raped.[1929]

1053. Witness DBK-126 testified that she was captured in Koidu Town by a “boy” whom the witness referred to as ‘Bravo’ shortly after the AFRC was overthrown in Freetown in February 1998. The witness testified that ‘Bravo’s’ boss was Junior Johnson also known as Junior Lion.[1930] The witness testified that she was with the troops when the AFRC invaded Freetown. In Freetown Junior Lion made the witness cook for him and bring him food at the Adelaide Police Station. Three days later, the government troops moved Junior Lion to State House. The witness continued to take food to him there. The witness testified that ‘FAT Sesay’ was in charge of the State House. She testified that the Accused Kamara was not at State House during this period and that she did not see the soldiers rape anyone.[1931] On cross-examination, however, the witness admitted that she had brought food to the Accused Kamara at the State House.[1932]

1054. The Prosecution notes that this witness has already pleaded guilty to contempt of Court for attempting to intimidate Prosecution witnesses.[1933]

1055. The Trial Chamber recalls its discussion of the evidence of witnesses who did not see atrocities committed in Freetown, wherein it found that in light of the overwhelming evidence to the contrary, no weight was to be afforded to this aspect of their testimony.

(ii) PWD

1056. Prosecution witness TF1-153 testified that ‘Gullit’ called him to the AFRC Headquarters at PWD during the time of the AFRC invasion. The witness testified that he saw young civilian women at the PWD several times. The witness testified that “soldiers” had abducted the girls from the Annie Walsh School near the East End Police Station. Tina Musa told the witness later that the girls had told her that they were all raped at the place they were caught.[1934]

1057. Witness TF1-153 also testified that around this same time, ‘Gullit’ called him and told him he “had strangers” for him at PWD.[1935] The witness went upstairs and saw a group of priests and nuns locked in a room. The witness spoke to a priest who told him that they had been captured and brought to the PWD. The priest said that all the nuns had been raped. The witness approached ‘Gullit’ to ask him to release the priests and nuns, but ‘Gullit’ said “They are all involved. They are making us suffer.”[1936]

1058. The Brima Defence asserts that witness TF1-153 abandoned portions of his statement and was desirous of impressing the bench by giving evidence damaging to the Accused as he had received a witness allowance.[1937] The Trial Chamber has previously addressed general issues of credibility with regards to witness TF1-153. The Trial Chamber notes that the evidence given by the witness with regards to rapes of young girls and nuns at PWD is hearsay evidence.

1059. The evidence of witness TF1-153 is generally supported by Prosecution witness TF1-334 who testified that roughly three weeks after the 6 January 1999 invasion of Freetown, Brima, Kamara and Kanu went to PWD Junction[1938] to call for reinforcements from the RUF.[1939] Around that time, Brima ordered the “troops” to abduct civilians in order to attract the attention of the international community.[1940] Kamara and Kanu were present also.[1941] Civilians, including a number of young girls were then abducted by the rebels and the commanders[1942] from Freetown and brought to the headquarters at PWD.[1943]

1060. The Trial Chamber finds that the hearsay evidence of witness TF1-153 that women and girls were raped at PWD and the general evidence of witness TF1-334 that young girls were abducted and brought to PWD is insufficient to satisfy the actus reus and mens rea elements of rape.

(iii) Greater Freetown

1061. The Trial Chamber has carefully considered the evidence of Prosecution witnesses TF1-104 who testified that “RUF junta guys” tried to rape his colleague, a certain ‘Saata’ at the Good Shepherd Clinic in Freetown sometime between 6 January 1999 and 14 January 1999.[1944] The Trial Chamber makes no findings on this evidence, as it goes to proof of a crime, namely attempted rape, over which this Court has no jurisdiction.

1062. Prosecution witness TF1-083 testified that in “Freetown” on about 16 January 1999, “rebels” whom the witness described as wearing “combat” but who were not ECOMOG came at night and took his sister-in-law out of their house. The witness and his brother ran and hid in nearby plantations. When the witness’s sister-in-law returned later that evening, she told the witness and his brother that she had been raped.[1945]

1063. The evidence of witness TF1-083 is generally supported by that of Prosecution witness TF1-033 who testified that after the AFRC lost the battle in Freetown he remained with the AFRC troops during their retreat for three weeks. During this time the eastern part of Freetown was occupied by AFRC “fighters” under the command of ‘Gullit’. The witness testified that ‘Gullit’ ordered his men to commit atrocities as they were retreating and that women and girls were raped by the fighters.[1946]

1064. The Trial Chamber has carefully considered the objections of the Defence with regards to the credibility of witness TF1-033.[1947] The Trial Chamber has previously considered the credibility of witness TF1-033 in general terms[1948]

1065. Defence witness DAB-100 testified that he heard that there were rapes by the AFRC/RUF during the invasion of Freetown in 1999. The Trial Chamber gives this statement little weight as no specific incidents were elaborated by the witness.

1066. By contrast, Defence witness DBK-012 testified that there were no rapes during the attack on Freetown in January 1999 because this was against the ideology of SAJ Musa, to whom he referred as the “Five Star General”. Anyone who would rape a civilian would have been executed.[1949] The Trial Chamber finds that this evidence does not raise a reasonable doubt as to the veracity of the overwhelming and detailed evidence to the contrary.

1067. The Trial Chamber also notes, but does not rely on, the evidence of Defence witness DSK-113 who testified that he was taken with the AFRC to Freetown during the January 1999 invasion. He testified that during the journey from Benguema to Freetown he did not see any SLA soldiers carrying out any rapes.[1950] This evidence relates to time periods not indicted.

(iv) Findings

1068. By virtue of the foregoing, and without predetermining the individual criminal responsibility of the three Accused, the Trial Chamber is satisfied that the elements of rape are established in relation to Freetown and the Western Area.

C. Outrages on Personal Dignity (Count 9)

1. Preliminary Remarks

1069. Count 9 has been charged in addition to or in the alternative to Count 6 (Rape), Count 7 (Sexual Slavery and Any Other Form of Sexual Violence) and Count 8 (Other Inhumane Act, Forced Marriage). As discussed, supra, in Chapter II, Defects in the Indictment, the Trial Chamber has dismissed Count 7 for duplicity[1951] and as discussed, supra, in Chapter IX, Applicable Law, the Trial Chamber has dismissed Count 8 for redundancy.[1952] As additionally discussed, supra, in Chapter IX, Applicable Law, the Trial Chamber is satisfied that the acts of rape and sexual slavery are encompassed by the definition of outrages on personal dignity and will consider evidence to this effect presently.

1070. In coming to its findings in relation to Count 9, the Trial Chamber relies on the findings made in relation to Count 6, supra, as well as its findings on the chapeau elements of war crimes.[1953]

2. Allegations and Submissions

1071. The Prosecution submits that the evidence in relation to Counts 6 to 8 establishes the legal requirements for the charge of outrages upon personal dignity.

1072. The Prosecution submits that the evidence establishes beyond a reasonable doubt the legal requirements of sexual slavery. The Prosecution asserts that the acts described in the evidence shows a pattern according to which the perpetrators abducted and detained women and subjected them to sexual acts. The Prosecution asserts that, very often, these women were the victims of multiple perpetrators. The only possible inference from the evidence is that the perpetrators acted in the reasonable knowledge that sexual slavery were likely to follow from their acts.[1954]

1073. The Prosecution in its Final Brief stated that it is the condition of being enslaved that gives rise to sexual slavery.[1955] It recalls the opinion of Trial Chamber I that the Accused must have intended to exercise the act of sexual slavery or have had reasonable knowledge that this was likely to occur. The Prosecution submits that same standard prevails in and should be applied in the present instance.[1956]

1074. The Kanu Defence submits that the Prosecution evidence did not prove that the phenomenon of ‘bush wives’ can be categorized as the crime of sexual slavery, as the “powers attaching to the right of ownership” (an element of the crime) are absent.[1957]

1075. Insofar as the Defence challenge the testimony of witnesses with regard to specific incidents of sexual slavery, the Trial Chamber has discussed these submissions as they arise in the evidence below.

3. Evidence of Witnesses TF1-094, DAB-156 and TF1-085

1076. Evidence which may go to the proof of the elements of sexual slavery can not always be limited to a particular place or a particular instant in time. Rather, given the prolonged nature of the crime alleged, some of the evidence given by a number of witnesses relates to events which take place over time, sometimes running through the indicted period for one District into the indicted period of other Districts. Similarly, some of the evidence given by these witnesses cover more than one location within a District and often more than one District.

1077. To maintain the coherence of such testimony, the Trial Chamber will first examine this evidence on a witness by witness basis. The Trial Chamber will then make findings on the whole of the evidence by District as set out in the Indictment.

(a) Prosecution Witness TF1-094

1078. Prosecution witness TF1-094 testified that she was with her parents in the village of Bamukura, Koinadugu District in August of 1998 when the village was attacked by “rebels and SLAs”.[1958] The witness, her parents and other family members fled to the bush but they were captured. The “rebels and SLAs” killed her parents[1959] and “one of them” threatened to kill the witness as well.[1960] An “SLA”, whom the witness described as wearing combat, and to whom she referred as ‘Andrew’ intervened and said that he would save her.[1961] On cross-examination the witness clarified that at the time ‘Andrew’ said that he would save her, he did not actually save her as “if you were saving somebody ... you would not rape that person.”[1962]

1079. ‘Andrew’ captured the witness, brought her to Yamadugu and raped her there. The witness was in “Class Two” at the time and had not yet started menstruating. The Trial Chamber observes that a child in Class Two is approximately 12 years old. The witness testified that she believed that if she had refused to have sex with ‘Andrew’, “they” would have killed her.[1963] The Trial Chamber finds that the environment of violence and the murder of both the witness’s parents substantiates this belief.

1080. The witness testified that after this, ‘Andrew’ continued to rape her and she became pregnant within a month of her capture. ‘Andrew’ told the witness not to abort the pregnancy and he would take care of her. The witness had to do his laundry and other chores. ‘Andrew’ considered the witness to be his “wife”.[1964] The witness testified that the “boss” in Yamadugu was a certain ‘Ojagu’ who was an SLA. The witness also stated that ‘Syllabug’, ‘Colonel Junior’ and ‘Rambo’, whom she describes as all SLA, as well as other commanders whom the witness did not know, were also in Yamadugu.[1965]

1081. The Prosecution states that it was suggested to the witness in cross-examination that at the time she was pregnant, Andrew said he would marry her. In response, the witness did not specifically rebut this statement, but clarified that she was pregnant at the time and ‘Andrew’ had asked her not to abort the pregnancy.[1966] The Prosecution asserts, and the Trial Chamber accepts, that this shows that at the time, she was not legally married to him. The witness testified in cross-examination that Andrew used to care for her.[1967] It is the case of the Prosecution, however, that the fact that the men cared for their abducted ‘wives’ did not change the fact that these women were under sexual slavery or forced marriage as the men exercised ownership over them, denied them liberty and engaged them in acts of a sexual nature under a coercive environment whereby they were unable to give genuine consent.[1968] The Trial Chamber notes the environment of violence and coercion in which the events testified to by the witness took place and it is satisfied that any benefit received by the witness is relative only and in no way diminishes the seriousness of the acts committed against her.

1082. Witness TF1-094 testified that she was taken with the troops as they travelled to Bamukoro, Koinadugu District; Badela; Tumanya or “Pumpkin Ground”, Koinadugu District where the witness stated SAJ Musa was the commander; Bofodia, Koinadugu District and Rosos, Bombali District. When they reached Rosos, the witness was four months pregnant. The witness testified that “55” was at Rosos and that there were many civilians at Rosos including hundreds of women.[1969]

1083. After Rosos, the witness was taken with the troops to Kamaranka; Kamalo, Bombali District; and then to Waterloo, Western Area. The witness testified that “55” was with the troops on the way to Waterloo. She was six months pregnant at the time and “55” beat her with a stick.[1970] The witness was then taken with the troops to Benguema, Western Area; Hastings, Western Area; and to Freetown during the AFRC invasion of 6 January 1999.[1971] During the AFRC retreat from Freetown, the witness was taken to Calaba Town, Western Area; Waterloo, Western Area - where she met ‘Andrew’; and then to Makeni, Bombali District. Andrew was shot dead in Makeni when the witness was seven months pregnant. The witness gave birth in Makeni on 19 April 1999, however, the child had died in the womb.[1972]

(b) Defence Witness DAB-156

1084. As found by the Trial Chamber with regards to Count 6, supra, Defence witness DAB-156 was raped by Junior Lion in Kabala, Koinadugu District sometime after the AFRC was overthrown in Freetown in February 1998 but before the rainy season. The witness testified that Junior Lion held her, raped her, banged her on the forehead where she still has a scar, and knocked out some of her teeth.[1973] The witness testified that he took her as his “wife” by force. He abducted her in Yuromia Town, near Foday Street.[1974]

1085. The witness testified that she was taken by Junior Lion to Kono, Koidu, Kono District and Kurubonla, Port Loko District. In Kurubonla, the witness saw a large number of soldiers, their wives, and other civilians. The leader was SAJ Musa and his deputies were called FAT and King. Junior Lion was also a deputy. At Krubonla, Junior Lion released the witness and a person the witness referred to as ‘Simon’ took the witness as his second wife. The witness testified that he was good to her. After that Simon and Junior Lion moved to another town and Simon arranged that the witness would stay with his brother, a man known to the witness as ‘Foyo’.[1975]

1086. Regarding witness DAB-156’s evidence that she was captured and raped by George Johnson aka Junior Lion and taken to the Westside as a captive, the Prosecution submits that the witness’s testimony ought to be completely disregarded because according to her own testimony she gave birth to her child in the Westside on 20 November 1999, and arrived in that area very shortly prior to the completion of her pregnancy.[1976] Thus, even if the events she has recounted in relation to Port Loko District are true (which the Prosecution disputes), her testimony falls well outside the relevant indictment period.[1977] The Trial Chamber agrees with this submission and makes no further findings on the basis of this evidence.

(c) Prosecution Witness TF1-085

1087. Prosecution witness TF1-085 testified that she lived with her family in Wellington, Western Area when AFRC rebels invaded in early January 1999. The Trial Chamber notes that the witness testified in chief that the year was 1999 but stated on cross-examination that she does not know the year she was captured. She accepted from counsel that the year was “1999” but then remained inconsistent on the exact date, stating alternatively that it was the 5th, the 6th and “Thursday”.[1978] The Trial Chamber finds that as the events happened many years ago and as the evidence of the witness is corroborated by the known date of the AFRC invasion of Freetown, 6 January 1999, the credibility of the witness is not undermined.

1088. The witness testified that she was approximately thirteen at the time.[1979] One day, shortly thereafter, the witness was warned by her neighbours that the rebels had arrived in Wellington. She hid in her house with her family but “rebels” whom the witness describes as “STF from Liberia” including a rebel whose name the witness gave to the Court in closed session,[1980] hereinafter ‘Colonel Z’, broke down the door. The rebels told the witness to come with them and when she refused they beat her, put a pistol to her neck and threatened to cut off her mother’s hands.[1981] The rebels gave her a load to carry and took her to Allen Town.[1982]

1089. The witness testified that ‘Five-Five’ led the group in Wellington. She was told by “others” that he was ‘55’. She described him as huge, fat, tall, fair, black, carrying a stick that shot bombs, and wearing ronko.[1983] On cross-examination, the witness testified that he was “huge”, “tall”, and had body guards.[1984] The Kanu Defence asserts that witness TF1-085’s description of a “big boss” named ‘Five-Five’ does not correspond with the Accused Kanu and is not corroborated by any other Prosecution witnesses.[1985] The Trial Chamber notes that the description of ‘Five-Five’ given by the witness does not correspond with the physical features of the Accused Kanu who is a thin man of medium height and therefore does not rely on her evidence in this regard.

1090. ‘Colonel Z’ took the witness into the Mammy Dumbuya Church in Allen Town and told her he wanted to have sex with her. The witness refused. ‘Colonel Z’ beat her, tied her hands and raped her. The witness bled and lost consciousness. It took a month for her to heal.[1986] After ‘Colonel Z’ raped the witness, he told her she was his “wife”.[1987]

1091. Witness TF1-085 was taken by the rebels from Allen Town to Waterloo which had been captured.[1988] The witness testified that a person she referred to as ‘Five-Five’ was in command in Allen Town[1989] and that in a village on the way to Waterloo, he ordered that the witness be beaten for cooking and making smoke.[1990] As discussed, supra, the Trial Chamber makes no findings with regards to the Accused Kanu on the basis of this evidence. The witness was then taken by the rebels to Masiaka, Port Loko District. The person the witness referred to as ‘Five-Five’ led the group to Masiaka.[1991] In Masiaka, ‘Colonel Z’ repeatedly forced the witness to have sex with him. As a result, the witness bled and ‘Colonel Z’ took her to the doctor. When she healed, ‘Colonel Z’ continued to have sex with her without her consent.[1992] The witness became pregnant and miscarried twice as a result of the rapes.[1993]

1092. In Masiaka, ‘Colonel Z’ “married” the witness in a ceremony and gave money to the person referred to by the witness as ‘Five-Five’ as a “father-in-law”.[1994] The Prosecution submits that this did not create any valid marriage or change the witness’s status of being under sexual slavery or in a forced marriage as she was not at liberty to leave and remained there under a coercive war environment.[1995] The Trial Chamber notes the environment of violence and coercion, namely, the witness’s forcible abduction and her repeated rape by the rebel ‘Colonel Z’, and finds that given these circumstances the witness could not have validly consented to the “marriage”. The Trial Chamber is therefore of the opinion that this was not a ‘legal’ marriage.

1093. ‘Colonel Z’ had more than six other captured wives in Masiaka.[1996] He did not force the witness to do any work around the house; however, his other wives were required to do so. The other wives beat the witness because they said that she took their husband away.[1997]

1094. ‘Colonel Z’ held the witness in Masiaka against her will.[1998] The witness begged ‘Colonel Z’ to let her return to Freetown. The witness testified that ‘Colonel Z’ gave her cocaine. She also stated that he gave her marijuana, a pistol and an AK-47 and taught her how to use the weapons for her security.[1999] On cross-examination, the witness stated that she carried the pistol with her.[2000]

1095. The witness tried to escape from Masiaka with two other women. They were approximately two miles away from town when they were caught by some “rebel boys”. The rebels cut the two other women with a blade, marking their bodies with the acronym “AFRC/RUF”. They took the witness to the police station in Masiaka where ‘Colonel Z’ picked her up. He brought her back to the house, beat her, and threatened to kill her.[2001]

1096. The witness was held Masiaka for several months after which time she, ‘Colonel Z’ and the rebels travelled to Lunsar, Port Loko District to avoid ECOMOG.[2002] The witness testified that ‘Issa’ went from Masiaka to Lunsar and that he was in charge together with the other rebels.[2003] ‘Daramy’ and ‘Gold Teeth’ were in Lunsar.[2004] They then travelled to Kurbola Hill, Port Loko District where the witness and other civilians were trained to fight. They were trained on how to cock and fire a gun, how to evade enemies and how to attack.[2005] After the training, the witness and the other trained civilians were sent to fight in Kono. Some of the trained civilians were killed by ECOMOG during the attack.[2006] The Trial Chamber notes this evidence of witness TF1-085 will be addressed in the Factual Findings in relation to Count 12 (Child Soldiers). The Trial Chamber also notes that the Indicted period for Count 13 (Abductions and Forced Labour) for Kono District ends in January 2000 and thus makes no findings on the basis of this evidence in that regard.

1097. After the attack, the witness, the rebels and ‘Colonel Z’ returned to Port Loko District and then travelled to Makeni, Bombali District. Makeni was bombed and the witness was separated from ‘Colonel Z’ and she attempted to flee to Masiaka. She was detained by ECOMOG forces and then allowed to return to Freetown where she reunited with her mother. She was pregnant when she returned and underwent an abortion.[2007] The Trial Chamber makes no findings on the basis of this evidence in regards to Bombali District as the indicted period for sexual crimes in Bombali District ends on 30 November 1998, well before this evidence of the witness took place.

1098. The Trial Chamber notes that the witness testified that she was abducted by an “STF from Liberia” and that the Trial Chamber has no evidence before it to suggest with which faction, if any, these persons were affiliated. However, the witness’s description of her abductors as “rebels”; and the route taken by the persons who captured the witness, namely from Wellington to Allen Town to Waterloo to Masiaka, Port Loko District where she was held for several months, which is consistent with the known route taken by AFRC/RUF forces on the retreat from Freetown; are consistent with a finding that her abductors were members of the AFRC/RUF.

1099. The Trial Chamber notes the Kanu Defence assertion that the evidence given by Prosecution witness TF1-085 can not be deemed reliable and should not be give any weight. [2008] The Trial Chamber found witness TF1-085 consistent and firm in her evidence and accepts her as a witness of truth.

4. Evidence and Deliberations by District

(a) Kono District (14 February 1998 – 30 June 1998)

1100. The Indictment alleges that between 14 February 1998 and 30 June 1998 an unknown number of women and girls were abducted by members of the AFRC/RUF from various locations within the District and used as sex slaves.[2009]

1101. The Prosecution has conceded that it has not led evidence in respect of Tomendeh, Fokoiya, Superman Camp/Kissi Town Camp, Kissi Town or Tombodu.[2010]

1102. In making its findings in relation to Kono District, the Trial Chamber relies upon the evidence of Prosecution witness TF1-334 and Defence witnesses DAB-125 and DAB-101.

1103. Prosecution witness TF1-334 testified that from the time Johnny Paul Koroma declared Koidu a “no go” area for civilians in early March, 1998, civilians were captured by “rebels” from the surrounding villages such as Tombodu and Yamadu. Civilians who tried to escape were executed.[2011] Women – particularly the young and beautiful ones – were placed under the full control of “commanders”; they became their “wives”. As their “wives” the women cooked for the rebels and the other soldiers in Kono. They were also “used sexually.”[2012] This was an open practice. Witness TF1-334, “Commander A” and other soldiers all “had sexual intercourse” with captured women.[2013]

1104. The Prosecution submits that this evidence has not been challenged by any Defence evidence and as such the Prosecution version of events must be accepted.[2014]

1105. The Trial Chamber is of the opinion that witness TF1-334’s testimony that women were captured; that captured civilians who tried to escape were executed; that captured women were place under the “full control” of commanders and became their “wives”; and that these women cooked for the commanders and other soldiers is indicative of the deprivation of the captured women’s liberty and the exercise of ownership over them by members of the AFRC. The Trial Chamber is also satisfied on the evidence of the witness, namely that the women were “used sexually” and that soldiers, including himself, had sexual intercourse with captured women, that acts of sexual violence were committed against the captured women. The Trial Chamber infers from the environment of violence and coercion that the women did not consent to these sexual acts. The Trial Chamber is thus of the opinion that the actus reus and mens rea elements of the crime of sexual slavery are satisfied on the basis of this evidence.

1106. The evidence of witness TF1-334 is generally supported by that of witness DAB-101 who testified that after hearing on the radio about “Operation No Living Thing” he was captured and released three times by the RUF in Kono District. The “rebels” were based at Mortema at this time. The witness was captured, together with two other civilians, by the RUF a fourth time. The rebels were armed and were wearing civilian clothing. The rebels told the witness that they would release him if he agreed to turn over two of his nieces to them to be their “wives”. The witness testified that the nieces advised him to accept the offer so he did. The girls were 15 and 17 years old at the time. The witness then went back to the “bush”. The witness saw the girls again after the war. The girls told the witness their “ordeal”; they said they were beaten but did not tell the witness anything else.[2015] The Trial Chamber is of the opinion that girls aged 15 and 17 years of age, in the context of coercion and violence, could not have validly consented to “marriage”.

1107. Witness DAB-101 also testified that, generally, women that were captured by the rebels were transformed into their ‘wives’. They were usually sent to spy for the rebels or to find food. In Mortema, the witness did not hear about any rapes. He also never heard the name of the Accused Brima.[2016]

1108. The evidence of witness TF1-334 is also generally supported by that of witness DAB-125 who testified that around Wordu Town, if “they” saw a young girl they would hold and turn her into their wife.[2017]

(i) Findings

1109. By virtue of the foregoing the Trial Chamber is satisfied that the elements of sexual slavery are established in relation to Kono District.

(b) Koinadugu District (14 February 1998 – 30 September 1998)

1110. The Indictment alleges that between 14 February 1998 and 30 September 1998 an unknown number of women and girls were abducted and used as sex slaves by members of the AFRC/RUF.[2018]

1111. The Prosecution has conceded that it has not led evidence in respect of Heremakono.[2019]

1112. In making its findings in relation to Koinadugu District, the Trial Chamber relies on the evidence of Prosecution witnesses TF1-094, TF1-133, and TF1-209 and Defence witness DAB-079 and DAB-156.

1113. As examined, supra, in the evidence by witness section, witness TF1-094 testified that in August of 1998 she was abducted by a certain ‘Andrew’ from her village, Bambukura, Koinadugu District. The Trial Chamber is satisfied from the witness’s description of ‘Andrew’ as an “SLA” dressed in combat that Andrew was a member of the AFRC or the RUF. The witness testified that after Andrew abducted her, he repeatedly raped her. The witness became pregnant within the first month of being with Andrew. She testified that she had to do his laundry and other chores and that Andrew considered the witness to be his “wife”. The witness was taken with the troops as they travelled to Bombali District. They reached Rosos when the witness was four months pregnant.

1114. The Trial Chamber is of the opinion that the witness’s testimony of her forcible abduction; the murder of her parents in her presence which established an context of fear and violence; her fear that she too would be killed if she did not have sex with ‘Andrew’; the extraction of her forced labour by ‘Andrew’, namely laundering and other chores; the use of the term ‘wife’; and her detention with the troops for approximately four to five months as they travelled through Koinadugu District to Bombali District are all indicative of the deprivation of her liberty and the exercise of ownership over her person by ‘Andrew’ which together with acts of sexual violence, namely, ‘Andrew’s repeated rape of the witness and her subsequent pregnancy, satisfies the actus reus and mens rea elements of the crime of sexual slavery.

1115. Prosecution witness TF1-133 testified that captured women in Koinadugu District were forced to be “wives” to members of the AFRC or RUF and that she was present in Krubola for a period of seven months and Serekolia for a period of three months during which time “forced marriages” were supervised and organised by herself for members of the AFRC and RUF.

1116. The witness testified that in Kumala, in April 1998, at the time that the villagers were “getting ready to make [their] farms” at the end of the dry season, she, her siblings and one of her husband’s other wives, were captured by four “rebels” whom the witness named as ‘Mohammed the Killer’, ‘Trouble’, ‘Arpick’ and ‘Cyborg’. Some of the rebels were in uniform and some were in civilian dress.[2020] The witness and her family members, together with some other captured civilians known to the witness – Bamba Jalloh and Sialo Kamara - were taken by the rebels on a path towards Woronbiai. Before they reached town, ‘Mohammed the Killer’, who was armed, raped the witness. The witness testified that she was unable to refuse. At the same time, another rebel – whom the witness named as ‘RPG’ - raped the witness’s husband’s other wife.[2021]

1117. The witness was kept with the rebels at Woronbiai for eight days. There the witness learned that Mohammed the Killer’s commander was named ‘Cobra’.[2022] Other commanders at Woronbiai were ‘Colonel Tee’ who was SLA; ‘Pa Mani’ who was SLA; and ‘Rambo’. ‘Rambo’ and ‘Pa Mani’ were the overall commanders at Woronbiai.[2023] At Woronbiai, ‘Mohammed the Killer’ wanted to marry the witness to ‘Cobra’. The witness refused. ‘Mohammed the Killer’ said the witness should be killed and he wounded her with a bayonet. The witness was injured on her hip and buttocks.[2024] The witness was led away by a rebel to be killed, however, ‘Rambo’ intervened.[2025] ‘Rambo’ and ‘Pa Mani’ punished ‘Mohammed the Killer’ by having him beaten.[2026] Cobra’ said “You have brought this woman for me. If she says she doesn’t love me, leave her alone”.[2027] The witness was treated for her injuries. For the eight days she was in Woronbiai, the witness lived with ‘Cobra’.[2028]

1118. All of the women who were captured at the same time as the witness were given to “men” as their “wives” which meant that the women had to have sex with the men. The witness’s husband’s other wife was given to a “rebel” named Komba; Bamba Jalloh was given to a Mende “rebel” named Yubao. Sialo Kamara was made to work for the wives of the rebels. She laundered clothes and washed dishes.[2029]

1119. The Trial Chamber notes that in its Final Brief, the Prosecution cites the proceeding testimony of witness TF1-133 as evidence of crimes committed in Woronbiai, Kono District.[2030] The Trial Chamber finds that this is a mistaken assertion. Witness TF1-133 clearly testified that she was in the bush outside of Kumala, near Alikalia, when she was captured, and that she was raped in the bush on the way to Woronbiai. She also testified that immediately prior to the attack on Kumala, Yiffin had been attacked.[2031] The Trial Chamber has no doubt that the proceeding events the witness describes took place in Koinadugu District.

1120. Witness TF1-133 testified that then she and an unknown number of other women who had been captured by “rebels” were taken with the rebels - including ‘Cobra’ and “Brigadier” Mani - to Krubola where they stayed for seven months. At Krubola, they “met” another group of rebels which included a “fighter” named ‘Savage’, a “rebel” named ‘Komba Gbundema’, and a “rebel” named ‘Superman’. There were other men there, but the witness did not know their names. The men at Krubola were all “under” Komba Gbundema.[2032] The Trial Chamber is satisfied on the basis of this evidence that the rebels present at Krubola at this time were both members of the AFRC and RUF.

1121. In Krubola, the captured women cooked and “had sex” with the rebels and were forced to be their “wives”. The witness stated that when a women was “betrothed” to a man, she became his “wife” which according to the witness, meant that “whoever you were with would have sex with you.” The witness testified that when the rebels captured women, they would have sex with them before bringing them to where the rebels were based. When the captured women were taken to the base, they would be handed over to a person who would have sex with that woman all the time. The “bosses and stronger guys” all had wives who were captured but the subordinates were not allowed to have wives. The subordinates would be sent to the front and they would always bring back captured civilians, including women.

1122. The witness testified that in her presence the “elders” and “bosses” including ‘Rambo’, ‘Colonel Tee’ and ‘Pa Mani’ made a law that whoever was given a woman would be the sole owner over her and that a man should not covet his colleague’s wife. “If you were caught, you will be killed”. Captured children were made to work for the captured “wives” of the rebels.[2033] On cross-examination, the witness testified that the children were captured because older civilians wanted them to work for them.

1123. At the time that groundnuts were about to be harvested the rebels moved to Serekolia, Koinadugu District. On the way, the rebels travelled through Mongo which “was captured”. The rebels that moved included Kombo Gbundema’s group, ‘Superman’, ‘Savage’, ‘Colonel Tee’ and ‘Pa Mani’. They remained in Serekolia for three months. While they were there the civilians voted for the witness to represent them. She was appointed the “Mammy Queen” by ‘Pa Mani’, ‘Colonel Tee’ and their clerk Alhaji. As the Mammy Queen, the witness would investigate captured civilians who had been mistreated and cases where husbands or wives had sex with someone else’s spouse. If a woman was found guilty of having sex with someone else’s husband she could be given 200 lashes. If a man raped another man’s wife, he could be killed.[2034]

1124. The Prosecution asserts that the witness’s position as a “Mammy Queen” did not in any way help her or the other “wives’” plight, as it did not affect the powers of the men over their abducted ‘wives’, or afford them any liberty to leave or refuse to engage in acts of a sexual nature with their so called husbands.[2035]

1125. The Prosecution also asserts that witness TF1-133 was not discredited on cross-examination and that her evidence has not been challenged by any Defence evidence and as such, the Prosecution version of events should be accepted.[2036]

1126. The Trial Chamber is satisfied on the evidence of witness TF1-133 that women captured in Koinadugu District were subject to repeated rape by members of the AFRC/RUF; were made to labour for members of the AFRC/RUF, namely to cook, launder clothes and wash dishes; were labelled as “wives”, in this context a label of possession, and placed in exclusive relationships of ownership by certain rebels; were punished with physical violence if the exclusive sexual relationship was violated; and were detained at rebel bases in Krubola and Serekolia and made to travel together with the troops; are all indicative of the deprivation of liberty and the exercise of ownership over captured women together with acts of sexual violence satisfying the actus reus and mens rea of the crime of sexual slavery.

1127. As found by the Trial Chamber, supra, Prosecution witness TF1-209 was raped at her mother’s farm outside of Koinadugu Town by two members of the AFRC/RUF in or about August, 1998. Following this attack the rebels brought her to Koinadugu Town where over a period of three months she was repeatedly raped by ‘Jabie’, a member of the AFRC.[2037]

1128. In addition to these findings, the Trial Chamber also relies upon the evidence of witness TF1-209 that when she and other captured civilians were brought to Koinadugu Town, they were taken to the “MP’s” office where their names were recorded by a person to whom the witness referred as ‘Mongo.’ The witness testified that this was done so that the captured civilians would not go missing. The witness described ‘Mongo’ as dressed in combat and stated that he was the boss of the Military Police.[2038]

1129. The witness testified that following this registration process she was taken by the “person” who captured her to ‘Jabie’s house where she cooked and laundered for him. The witness testified that he turned her into his “wife” which she explained meant that he would have sex with the witness whenever he felt like it.[2039] The witness also testified that with the exception of excursions during the day to farms in the bush, she stayed in the same house with ‘Jabie’ in Koinadugu Town for three months until he was killed.[2040]

1130. The Trial Chamber is satisfied that the witness’s testimony of her forcible capture; the registration of her name by ‘Mongo’ when she arrived in Koinadugu Town and her perception that this was done to prevent her and other captured civilians from “going missing”; the extraction of her forced labour by ‘Jabie’, namely cooking and laundering; the use of the term ‘wife’, in this context a label of possession; and her detention in the same house as ‘Jabie’ is indicative of the deprivation of her liberty and the exercise of ownership over her person which together with acts of sexual violence, namely, ‘Jabie’s repeated rape of the witness found previously by the Trial Chamber satisfies the actus reus and mens rea elements of the crime of sexual slavery.

1131. The evidence of Prosecution witnesses TF1-094, TF1-133, and TF1-209 is generally supported by that of Defence witnesses DAB-156 and DAB-079. As found by the Trial Chamber with regards to Count 6, supra, Defence witness DAB-156 was raped by ‘Junior Lion’ in Kabala sometime after the AFRC was overthrown in Freetown in February 1998 but before the rainy season.[2041] The witness also testified that he took her as his “wife” by force and that he abducted her in Yuromia Town, near Foday Street.[2042]

1132. Witness DAB-079 testified that he did not receive any information about sexual violence in Kabala Town by the SLAs, although there were rumours of ‘bush wives’ in the interior. The witness was part of a CDF information network of 1000-1700 people and was receiving weekly reports from Kabala, Koinadugu, Yiffin, Geberefe and other locations. [2043]

(i) Findings

1133. By virtue of the foregoing the Trial Chamber is satisfied that the elements in relation to sexual slavery are established in relation to Koinadugu District.

(c) Bombali District (1 May 1998 – 30 November 1998)

1134. The Indictment alleges that between 1 May 1998 and 30 November 1998 an unknown number of women and girls were abducted and used as sex slaves by members of the AFRC/RUF.[2044]

1135. The Prosecution has conceded that it has not led evidence in respect of Mandaha.[2045]

1136. In coming to its findings in Bombali District, the Trial Chamber relies on the evidence of Prosecution witnesses TF1-334, TF1-094 and TF1-033 and Defence witness DAB-095.

1137. Witness TF1-334 testified that he and other “soldiers” under the command of “Woyoh”[2046] captured approximately 35 civilian women during the attack on Karina in June of 1998.[2047] The women were initially stripped naked but were later permitted to dress.[2048] When the soldiers left Karina they stopped at a temporary base in the jungle. There, Woyoh handed the women over to ‘Five-Five’ who was the Chief of Staff.[2049] ‘Five-Five’ distributed the women among the soldiers under his command by requiring them to “sign for” a woman. ‘Five-Five’ stated that if there were any problems the soldiers should immediately report directly to him. He also stated that if the soldiers “disturbed” the women, they would be removed from the soldier’s control.[2050] The women were “wives to the soldiers”[2051] and they remained with their “husbands” until the soldiers invaded Freetown.[2052]

1138. Witness TF1-334 testified that the AFRC troops arrived in Rosos at the beginning of the rainy season in 1998 and stayed there for three months, leaving in September.[2053] ‘Five-Five’ was in charge of overseeing that the captured women were trained for combat.[2054] ‘Five-Five’ continued to regulate the “marriages” of the women abducted in Karina at Camp Rosos. ‘Gullit’ appointed a “Mammy Queen” – a woman at the camp who looked after women’s affairs, including pregnancy, birth and sickness.[2055] ‘Five-Five’ issued a “disciplinary order” regulating the conduct of women which was explained to supervisors in the camp and to the Mammy Queen. According to this order, women who were unfaithful to their husbands should be punished.[2056] Soldiers and their “wives” reported problems directly to ‘Five-Five’ and if ‘Five-Five’ determined that the woman deserved punishment this could be delegated to the Mammy Queen. Women found by ‘Five-Five’ to have misbehaved could be beaten or given lashes. Women were also locked for long periods of time in a box meant for transporting rice.[2057] In one instance, witness TF1-334 observed a Staff Sergeant named “Junior” a.k.a “General Bagehgeh” report to ‘Five-Five’ that he suspected his “wife” of misbehaving. ‘Five-Five’ called the woman before him and found her guilty. He ordered that she be sent to the Mammy Queen, be given a dozen lashes and be locked in the box. The witness escorted her to the box.[2058]

1139. The Trial Chamber considers the evidence of Prosecution witness TF1-334 together with that of Prosecution witness TF1-033 who testified to having been taken along with AFRC troops to Rosos during the rainy season in 1998.[2059] He testified that rape was widespread throughout the time he was in captivity with the AFRC troops and that the only thing done about sexual violence committed by ARFC troops by “the commanders” occurred at Rosos. The witness testified that according to the “jungle justice” rules at that time, any fighter who raped another fighter’s abducted and forcefully married wife would be put to death. The witness specifically recalled an incident in which Alhaji Kamanda alias ‘Gunboot’ killed an AFRC fighter for raping another fighter’s forcefully abducted and married wife.[2060]

1140. The evidence of Prosecution witnesses TF1-334 and TF1-033 is supported by that of Prosecution witness TF1-094, found by the Trial Chamber to have been subject to sexual slavery in Koinadugu District, who also testified that during the period of her sexual slavery, she was brought by the troops to Rosos.[2061]

1141. The Trial Chamber is satisfied that the testimony of Prosecution witnesses TF1-334, TF1-033 and TF1-094 that women captured by the AFRC/RUF were distributed to soldiers to be their “wives”; that captured women were brought to Rosos where they were subject to physical and psychological violence as a form of punishment; and that the women were detained with their “husbands” until the soldiers invaded Freetown is indicative of the deprivation of the captured women’s liberty and the exercise of ownership over her person which taken together with acts of sexual violence committed against them, namely, rape at the hands of their rebel “husbands” or at the hands of other fighters satisfies the actus reus and mens rea elements of the crime of sexual slavery. The Trial Chamber finds further that this was a practice tolerated and regulated by the AFRC/RUF commanders.

1142. Prosecution witness TF1-334 also testified that in or about September 1998, after the troops left Rosos, SAJ Musa arrived in Major Eddie Town. During a meeting with the commanders there, he said that the troops would not be able to secure the women so the women should leave. The women did not leave.[2062]

1143. This evidence is generally supported by that of Defence witness DAB-095 who testified that he was in Colonel Eddie Town when it was used as a military camp for the SLAs under SAJ Musa. The witness was present during a muster parade held by SAJ Musa in Eddie Town when SAJ Musa gave an order that the SLAs should not attack civilians. Witness did not know about a Mammy Queen at Eddie Town. Soldiers were not allowed to rape civilians.[2063]

1144. The Prosecution argues that defence witnesses who gave insider type evidence such as DAB-095 lied in key parts of their evidence and colluded with each other and the Accused in order to ensure that their stories were the same.[2064] The Prosecution considers evidence given by such witnesses that they did not hear of any crimes, such as rape, being committed by the SLAs during the retreat from Freetown to be manifestly unreliable and untrue.[2065]

(i) Findings

1145. By virtue of the foregoing, and without predetermining the individual responsibility of the three Accused, the Trial Chamber is satisfied that the elements in relation to sexual slavery are established in relation to Bombali District.

(d) Kailahun (At all times relevant to the Indictment)

1146. The Indictment alleges that at all times relevant to the Indictment, an unknown number of women and girls in various locations in the District were subjected to sexual violence. Many of these victims were captured in other areas of the Republic of Sierra Leone and brought to AFRC/RUF camps in the District and used as sex slaves.[2066]

1147. No specific concessions with regards to locations in Kailahun were found to have been made by the Prosecution at the Motion for Acquittal stage.[2067]

1148. In making its findings in relation to Kailahun, the Trial Chamber has examined the evidence of Prosecution witnesses TF1-045 who testified that during the ECOMOG intervention in Freetown in February 1998, he was in Kenema.[2068] “Operation Pay Yourself” was declared by Sam Bockarie during which time civilians were abducted by the troops and taken to Daru.[2069] The witness moved with the troops to Daru, where the next morning, he met his niece Aminata who was one of the captured civilians. Aminata told the witness that an “RUF” named Ibrahim captured her, raped her and told her she should be his “wife”. Aminata was a young teenager at the time.[2070] The Trial Chamber finds on the basis of this evidence that the crime of sexual slavery is not proven as the evidence insufficiently establishes the exercise of ownership by the perpetrator over the victim.

(i) Findings

1149. By virtue of the foregoing the Trial Chamber is not satisfied that the elements in relation to sexual slavery are established in relation to Kailahun District.

(e) Freetown and Western Area (6 January 1999 – 28 February 1999)

1150. The Indictment alleges that between 6 January 1999 and 28 February 1999 throughout Freetown and the Western Area members of the AFRC/RUF abducted hundreds of women and girls and used them as sex slaves.[2071]

1151. No specific concessions with regards to locations in Freetown and the Western Area were found to have been made by the Prosecution at the Motion for Acquittal stage.[2072]

1152. In coming to its findings in relation to Freetown and the Western Area, the Trial Chamber relies on the evidence of Prosecution witnesses TF1-023, TF1-334, TF1-094 and Defence witnesses DBK-113 and DBK-126.

1153. Prosecution witness TF1-023 testified that she was 16[2073] when the AFRC invaded Freetown in January 1999. She and her family tried to hide; however, she was captured by “rebels”[2074] in Calaba Town on 22 January 1999.[2075] She was taken by the rebels first to Allen Town and then back to Calaba Town.[2076] At Calaba town, she was given to an AFRC rebel,[2077] hereinafter “the Captain” to be his “wife”.[2078] The Captain told the witness he would not take her as his “wife” as he had already been given another woman – the witness’s cousin – and could not take care of two women at the same time.[2079] Instead, the Captain handed the witness over to a known AFRC Colonel,[2080] hereinafter “Colonel X”, who took her as his “wife”.[2081] There was no ceremony and he did not ask her consent.[2082] The witness was afraid. That night, Colonel X came into the room where the witness was instructed to sleep. He told her to undress, threatened her and had sex with her without her consent. Prior to this incident, the witness was a virgin.[2083]

1154. After that night, the witness was taken along with the rebels as they attempted to evade ECOMOG attacks, travelling to Allen Town, Waterloo, Benguema, Lumpa and Four Mile.[2084] At Benguema, the witness saw a man whom the soldiers[2085] said was the senior commander, Brigadier ‘Gullit’.[2086] At Four Mile the witness spent three weeks with Colonel X.[2087] During this time Colonel X and the witness lived together and he continued to have sex with her frequently. He did not ask her consent when he had sex with her; he said she was his “wife”. Colonel X asked the witness to cook for him, but she did not because she did not know how.[2088] The witness felt there was no way for her to escape from Colonel X.[2089] She was unfamiliar with the area in which she was being held[2090] and Colonel X sent an armed escort with her wherever she went.[2091] She was afraid.[2092] There were approximately 400 armed rebels at Four Mile and the witness knew that those who tried to escape were caught and beaten by the rebels.[2093] The witness testified that Colonel X told her that the senior commander at Four Mile was Brigadier ‘Bazzy’.[2094] She would see Brigadier ‘Bazzy’ regularly when he would visit Colonel X.[2095]

1155. There were other women given to soldiers as wives in Four Mile. In Lumpa, for example, the witness knew ten other women who had been captured and given as “wives” to AFRC rebels.[2096] Some were given to lieutenants and some were given to ordinary soldiers.[2097] The Prosecution asserts that this evidence was not challenged in cross-examination.[2098]

1156. As the “wife” of a commander, the witness was accorded certain privileges. The Trial Chamber notes that in chief the witness stated that she was not forced to do “anything”. She clarified on cross-examination that she was not forced to do any work; she was not forced to cook or clean, for example.[2099] The witness testified that “people of lower ranks” respected her and deferentially called her “De Mammy” because of the Colonel.[2100] The Prosecution submits that this did not change the status of the witness who remained under sexual slavery because she had no way of leaving as an armed person watched over her and those who attempted to escape were caught and beaten.[2101] The Trial Chamber agrees with this submission. The fact that some individual abductees were treated less harshly than others does not, in our opinion, detract from the fact that they were forcibly taken and subjected to sexual slavery.

1157. Colonel X left the witness in Four Mile and went to Makeni. In his absence, Colonel X left her in the care of another AFRC captain,[2102] hereinafter “Captain Y”, whom the witness accepted on cross-examination tried to look after her and to ensure that she did not come to any harm.[2103] The witness travelled with Captain Y and the rebels to Mile 38, Port Loko District and then to Magbeni[2104] where later, in August of 1999, the witness was able to escape. The witness was in the custody of Captain Y for approximately five months. During this time, Colonel X did not return.[2105] The witness saw ‘Bazzy’ several times in Mile 38.[2106] ‘Bazzy’ was the overall commander in Magbeni.[2107] In June or July, the witness also saw ‘Gullit’ in Magbeni.[2108]

1158. The Prosecution submits that the evidence of the witness remained consistent and was unsuccessfully challenged in cross-examination.[2109]

1159. The Trial Chamber is satisfied that the witness’s testimony of her forcible capture; the use of the term ‘wife’, in this context a label of possession; her detention with the troops as they travelled through the Western Area; her detention with Colonel X for three weeks in Four Mile at which time she felt that she could not escape for fear of being beaten or killed by him; and her subsequent detention by Colonel X and the other rebels for a period of several months, are all indicative of the deprivation of her liberty and the exercise of ownership over her person which, together with acts of sexual violence committed against her, namely ‘Colonel X’s repeated rape of the witness, satisfies the actus reus and mens rea of the crime of sexual slavery.

1160. The Trial Chamber notes that the witness testified that as the “wife” of Colonel X she was accorded certain benefits, for example, she was not forced to cook or clean and was deferentially called “De Mammy”. The Trial Chamber is of the opinion that this is a relative benefit only and does not in any way undermine the absolute seriousness of the crime committed against the witness.

1161. The evidence of Prosecution witness TF1-023 is generally supported by that of Prosecution witness TF1-334 who testified that after the invasion of Freetown on 6 January 1999, a number of soldiers who did not “have women” before had new “wives”.[2110] The soldiers gave the women food and clothing and the women cooked for the soldiers.[2111]

1162. Prosecution witness TF1-334 testified that civilians abducted during the retreat from Freetown[2112] were brought with the rebels to Benguema where the rebels were based for approximately one month.[2113] There were approximately 300 civilians at Benguema – men, women and children.[2114] During this time, the civilians that were abducted were “well-secured” meaning that they could not escape.[2115] Most of the young girls who were abducted from Freetown became the “wives” of “various commanders” meaning that they had sex with the commanders.[2116]

1163. In the Kissy area, where the witness knew some of the captured girls, they told the witness “what they would do with the men who captured them”; sometimes the witness would “see with my own eyes”.[2117] The “wives” were also required to help with the cooking.[2118]

1164. Witness TF1-334 testified that “families”, which the witness explained refers to the captured civilians travelling with the troops, travelled with the troops from Waterloo to Newton where they all stayed for about a month. The only civilians with the “troops” at Waterloo and Newton were those who arrived with them.[2119] The “women” were helping with the cooking and the “girls” were sleeping with the “commanders”. The “commanders” would call them their “wives”.[2120] ‘Five-Five’ was responsible for the women and girls in the camp at Newton. The soldiers would report problems with the women to ‘Five-Five’.[2121]

1165. The Trial Chamber is of the opinion that witness TF1-334’s testimony that civilian women were captured from Freetown and brought with the retreating troops to the Western Area, were held in Benguema for approximately one month and were taken to Kissy, Waterloo and Newton; that during their detention in Benguema the civilians were well secured so they could not escape; that young girls became the “wives” of various commanders; and that the “wives” were required to cook for the soldiers is credible and is indicative of the deprivation of the captured women’s liberty and the exercise of ownership over them by members of the AFRC/RUF. The Trial Chamber is also satisfied that acts of sexual violence described by the witness, namely that the “wives” had sex with the various commanders, were committed against the captured women. The Trial Chamber infers from the environment of violence and coercion that the women did not consent to these sexual acts. The Trial Chamber is thus of the opinion that the actus reus and mens rea elements of the crime of sexual slavery are satisfied on the basis of this evidence.

1166. The Trial Chamber also relies on the evidence of Prosecution witness TF1-094, found by the Trial Chamber to have been subject to sexual slavery in Koinadugu District, that during the period of her sexual slavery, she was brought by the troops to Freetown during the AFRC invasion of 6 January 1999 and was present during the retreat through the Western Area.[2122]

1167. Defence witness DBK-113 testified that he was with the troops during the invasion of Freetown in January, 1999.[2123] He testified that after SAJ Musa died, he remained with the troops in Hastings for three to four days. From Hastings, the witness passed through Allen Town, Wellington and Kissi and, on January 6th, he came as far as Hill Cot Road. The witness cannot recall that a “Mammy Queen” was appointed during the move to Freetown.[2124] The Trial Chamber finds the evidence of witness DBK-113 to be credible and consistent. However, the fact that the witness could not recall a “Mammy Queen” does not raise a reasonable doubt with regards to the evidence of Prosecution witnesses TF1-023, TF1-094 and TF1-334 whose evidence indicates numerous incidents of sexual slavery following the 6 January 1999 invasion.

1168. The Trial Chamber has also carefully examined the evidence of witness DBK-126 who testified that when the AFRC entered Freetown, all the soldiers were with their wives. Only the detainees did not have wives.[2125] The Trial Chamber finds that in the face of overwhelming evidence to the contrary this statement is not credible.

1169. Witness DBK-126 also testified that she had a “boyfriend” who was a commander of a mortar platoon. The witness testified that from the time she and her “boyfriend” were in Kono at Masingbi Road, he had repeatedly proposed to her. He went to ‘Junior Lion’ whom the witness referred to as “the Chief”[2126] and told him he wanted the witness. ‘Junior Lion’ told the witness “this is your husband.” She agreed because she had no option. They have a son together. After they left the bush, the witness told her “boyfriend” that she did not want him anymore.[2127] In Freetown, the witness was called a “rebel wife”, but she testified that she does not consider herself a “rebel wife”, as she was with the SLA and not the RUF. Although the witness also stated she had not heard the term “forced marriage” the Trial Chamber is satisfied that her evidence shows the actus reus and mens rea of sexual slavery.[2128]

(i) Findings

1170. By virtue of the foregoing, and without predetermining the individual responsibility of the three Accused, the Trial Chamber is satisfied that the elements in relation to sexual slavery are established in relation to Freetown and the Western Area.

(f) Port Loko District (February, 1999 – April, 1999)

1171. The Indictment alleges that about the month of February 1999, AFRC/RUF fled from Freetown to various locations in the Port Loko District. Between February 1999 and April 1999 an unknown number of women and girls in various locations in the District were used as sex slaves by members of the AFRC/RUF.[2129]

1172. No specific concessions with regards to locations in Port Loko District were found to have been made by the Prosecution at the Motion for Acquittal stage.[2130]

1173. In coming to its findings in Port Loko District, the Trial Chamber relies upon the evidence of Prosecution witnesses TF1-282 and TF1-285 and Defence witness DAB-156.

1174. Witness TF1-282 testified that during the dry season in early 1999, “rebels”[2131] entered her village in Port Loko District.[2132] The Trial Chamber notes that the witness testified in chief that the time period was “early in 1999” and in the “dry season”.[2133] On cross-examination the witness accepted that the correct month was January but she could not say if it was towards the beginning or end of January.[2134]

1175. The witness hid in an uncultivated area outside of the village. As she was hiding, the “rebels”, whom the witness described as some wearing civilian attire, some in combat, and some with guns, came a second time and captured the witness along with other civilians hiding in the uncultivated area. Witness TF1-282 was 14 at the time. The Trial Chamber notes that the witness stated that she was born in 1985 but on cross-examination testified that she does not know how old she was when she was captured.[2135] The Trial Chamber accepts that the witness is innumerate and finds that this does not undermine her credibility.

1176. The witness testified that the civilians were made to sit on the ground and were surrounded by the rebels. The witness watched as an armed rebel selected a woman from the group and led her away to another area. The rebel brought the woman back a short while later and then selected the witness and led her along the same route where a man the witness referred to as ‘55’ and another armed rebel were waiting. The witness testified that she knew the man was called ‘55’ because the rebel who brought her to the area called the name ‘55’ and nodded at him. ‘55’ told the witness to undress and to lie down and then he raped her. After the rape the witness was light-headed and was unable to get up for some time. ‘55’ told her to stand up and brought her back to the group of civilians.[2136]

1177. Witness TF1-282 testified that she later heard ‘55’ giving orders to fire and to move to Sumbuya, although on cross-examination she admitted that she did not hear ‘55’ give these orders directly.[2137] The witness also stated that she was later told by her rebel husband, whose name was given in closed session and hereinafter referred to as ‘Rebel A’,[2138] that ‘55’ was the “big man” in Sumbuya and gave orders to loot.[2139] On cross-examination the witness stated that she only saw ‘55’ once, when he raped her, and could not describe him.[2140]

1178. The Kanu Defence submits that witness TF1-282 is highly unreliable. In cross-examination, the witness was presented with a prior statement in which she described the person ‘Five-Five’ who raped her as “tall, slim, and fair in complexion, which means not too black.”[2141] When presented with this account of her description of ‘Five-Five’ the witness recanted stating that she was not able to describe the man who raped her, as she only saw him once, and that she did not describe him as tall, slim and fair in complexion.[2142] The Trial Chamber finds that the witness’s identification evidence is therefore inconsistent and cannot be relied upon. The Trial Chamber makes no findings on the basis of this evidence with regards to the Accused Kanu.

1179. After she was raped, the rebels, some of whom the witness described as wearing civilian attire and some of whom were in combat and who had guns took the witness to Sumbuya, a two day march. On the way, ‘Rebel A’ told the witness that he “wanted” her. When they arrived at Sumbuya, the named rebel took the witness to a house where he raped her. After that, the named rebel asked the witness to be his “wife”. The witness testified that she said “yes” because saying no in the circumstances would make no difference and she was afraid she might have been killed.

1180. In cross-examination, a prior statement of witness TF1-282 was put to her in which she stated that the man who took her had asked the witness’ brother to go and inform her parents that he had taken her as a wife and that after the war, he would go and see them. The witness testified that she could not remember saying this. It is the case of the Prosecution that, even if she had said so, it did not change the situation of the witness being in sexual slavery or forced ‘marriage’.[2143] The Trial Chamber agrees that such retroactive action does not diminish the seriousness of the acts.

1181. The witness testified that the named rebel continued to rape her everyday.[2144] The witness and the named rebel lived in the house with two other rebels; all three rebels were armed. There were also many other rebels in Sumbuya. The witness was afraid of the named rebel and did not try to escape for fear of what he might do to her. The witness was kept in Sumbuya by the named rebel for less than a month.[2145] On cross examination, the witness stated that she did not know if she was with the rebels in Sumbuya during February.[2146]

1182. The Brima Defence asserts that the testimony of witness TF1-282 is not reliable as she testified on cross that by giving evidence at the Special Court her lifestyle had changed for the better.[2147] The Trial Chamber does not share this opinion. Any benefit received by the witness related to her short-term accommodation during the Trial and in no way changes the witness’s overall lifestyle.

1183. The Trial Chamber is satisfied that the witness’s testimony of her forcible capture; her detention in a house with her rebel husband and two other rebels for under a month; her feeling that she could not escape for fear of what her rebel husband might do to her; and the use of the term ‘wife’, in this context a label of possession; is indicative of the deprivation of her liberty and the exercise of ownership over her person which, together with acts of sexual violence committed against her, namely repeated rapes committed by her rebel husband, satisfies the actus reus and mens rea of the crime of sexual slavery.

1184. The Trial Chamber also relies on the evidence of Prosecution witness TF1-085, examined by the Trial Chamber, supra,[2148] that she was abducted from Wellington, Western Area by persons found by the Chamber to belong to the AFRC/RUF sometime shortly after the 6th of January 1999. She was forced by the rebels to carry a load and taken to Allen Town where a rebel, present at the time of the witness’s abduction and whose name was given to the Court in closed session [hereinafter “named rebel”], raped her and told her she was his ‘wife.’ The witness was taken with the troops during the retreat from Freetown to Waterloo and then Masiaka, Port Loko District, where the named rebel continued to repeatedly rape her. The witness became pregnant and miscarried twice as a result of the rapes. In Masiaka, the named rebel “married” the witness in a ceremony, although the Trial Chamber has held that given the environment of coercion, there could be no valid consent on the part of the witness and therefore, this “marriage” could not have been legal. The witness was not forced to do any work for the named rebel, but she was detained against her will for several months and punished and threatened with death by the named rebel when she tried to escape.

1185. The Trial Chamber is satisfied on the basis of the evidence above that the named rebel exercised ownership over the witness and committed acts of sexual violence against her. As such, the Trial Chamber is satisfied that the actus reus and mens rea of the crime of sexual slavery are satisfied with regards to the evidence of witness TF1-085.

1186. The Trial Chamber also notes the evidence of Defence witness DAB-156 who testified that ‘Junior Lion’ took her as his “wife” by force in Kabala District after the AFRC was overthrown in Freetown in February 1998, but before the rainy season and that he brought her to Kurubonla, Port Loko District some time after that. The witness testified that at Kurubonla, ‘Junior Lion’ released the witness and a person the witness referred to as ‘Simon’ took her as his second wife. The witness testified that he was good to her and that after Simon and ‘Junior Lion’ moved to another town Simon arranged that she would stay with his brother, a man known to the witness as ‘Foyo’.[2149] The Trial Chamber is not satisfied on the basis of this evidence that sexual slavery is satisfied as there is no indication of the elements of ownership or sexual violence. The Trial Chamber is also of the opinion that this evidence indicates that the witness may have received some benefit from this particular arrangement. However, the Trial Chamber is not willing to infer that this was also the case for other witnesses who have testified to sexual slavery nor, in any event, that this relative benefit would create doubt as to the seriousness of the crime of sexual slavery where it has been found in relation to the evidence of other witnesses.

(i) Findings

1187. By virtue of the foregoing, and without predetermining the individual responsibility of the three Accused, the Trial Chamber is satisfied that the elements in relation to sexual slavery are established in relation to Port Loko District.

5. Findings

1188. By virtue of the foregoing and of the Trial Chamber’s findings with regards to Count 6 and the chapeau elements of war crimes, the Trial Chamber is satisfied that the elements in relation to Count 9 (Outrages on Personal Dignity) are established in Kono, Koinadugu, Bombali, Freetown and Western Area and Port Loko Districts.


 

D. Physical Violence

1. Allegations and Submissions

1189. The Indictment alleges that “[w]idespread physical violence, including mutilations, was committed against civilians. Victims were often brought to a central location where mutilations were carried out”[2150] by members of the AFRC/RUF in various locations in the territory of Sierra Leone including Kono District between about 14 February 1998 to 30 June 1998; Koinadugu District between about 14 February 1998 and 30 September 1998; Bombali District between about 1 May 1998 and 31 [sic] November 1998; Freetown and the Western Area between 6 January 1999 and 28 February 1999; and Port Loko District between February and April 1999.[2151]

1190. Specifically in relation to Kenema District the Indictment alleges that between about 25 May 1997 and about 19 February 1998 members of the AFRC/RUF carried out beatings and ill treatment of a number of civilians that were in custody.[2152]

1191. The Parties have not made general submissions applicable to all districts in which mutilations are alleged to have occurred. Insofar as the Parties challenge the testimony of witnesses with regard to specific incidents of physical violence the Trial Chamber has discussed these submissions as they arise in the evidence below.

2. Evidence and Deliberations

(a) Kenema District (25 May 1997 - 19 February 1998)

1192. The Indictment alleges that “[b]etween 25 May 1997 and about 19 February 1998, in locations in Kenema District, including Kenema town, members of the AFRC/RUF carried out beatings and ill-treatment of a number of civilians who were in custody”.[2153]

1193. In reaching the following findings of fact, the Trial Chamber relied on the testimony of Prosecution witness TF1-122, and exhibit P-24.

1194. At the time of the AFRC coup on 25 May 1997, CDF controlled Kenema District.[2154] Following the coup, AFRC/RUF troops under the command of Sam Bockarie took over control of Kenema District.[2155]

(i) Kenema Town

1195. AFRC/RUF troops were stationed in Kenema Town between May 1997 and February 1998.[2156] Witness TF1-122 testified that AFRC/RUF soldiers used to “set a trap” on civilians with the national flag. The witness explained that the flag of Sierra Leone used to be raised every morning at 6am outside the AFRC/RUF Secretariat building at 14 Hangh Road. The law stated that civilians had to stand still while the flag was being raised. However, sometimes the AFRC/RUF would raise the flag at different times of the morning. The AFRC/RUF soldiers would then arrest civilians who were unaware of the changed time and were walking in the street. They took these individuals to their Secretariat and took away any possessions that they had on them.[2157] If a person resisted, she or he would be beaten and confined. The witness testified that this happened “continuously”.[2158] On one such occasion the witness tried to prevent the soldiers from arresting a woman but the soldiers then began beating him with their belts.[2159]

1196. In early February 1998, Sam Bockarie arrested the chairman of Kenema Town Council, B.S. Massaquoi; Brima Kpaka, a prominent business man; Andrew Quee, a civil servant and about four others on the grounds that they were “Kamajor supporters”.[2160] These individuals were initially detained at the AFRC Secretariat in Kenema Town.[2161] In the presence of both Sam Bockarie and the man in charge of the local AFRC Secretariat, the detainees were made to lie on the floor with tied hands to the back. They were assaulted, as a result of which B.S. Massaquoi had a swollen face, Brima Kpaka had an injury above his eye and the others had bruises.[2162] They were kept at the AFRC Secretariat building for three days.[2163] After handing them over to the police,[2164] AFRC/RUF troops rearrested them saying that they were to be taken to SOS East Brigade Headquarters.[2165] The AFRC/RUF troops beat and kicked B.S. Massaquoi.[2166] Subsequently, B.S. Massaquoi, Andrew Quee and the four other individuals were all killed.[2167]

(ii) Finding

1197. In light of the foregoing evidence, and leaving aside for the present the individual responsibility of the three Accused, the Trial Chamber is satisfied that AFRC/RUF troops carried out beatings and ill-treatment of at least seven civilians who were in their custody in Kenema Town in Kenema District. The Trial Chamber accordingly finds that the elements in relation to Counts 10 and 11 are established in respect of these incidents.

(b) Kono District (14 February 1998 - 30 June 1998)

1198. The Indictment alleges that “[b]etween about 14 February 1998 and 30 June 1998, AFRC/RUF mutilated an unknown number of civilians in various locations in the District, including Tombodu, Kaima (or Kayima) and Wondedu. The mutilations included cutting off limbs and carving ‘AFRC’ and ‘RUF’ on the bodies of the civilians”.[2168]

1199. No evidence of physical violence was led in respect of Wondedu.

1200. In reaching its factual findings and having examined the entire evidence, the Trial Chamber relies on Prosecution Witnesses TF1-033, TF1-072, TF1-074, TF1-076, George Johnson, TF1-198, TF1-216, TF1-272 and TF1-334, Defence Witness DAB-098 and Exhibits P-24, P-26, P-27, P-51 and P-56.

(i) Tombodu

1201. Following an order of Johnny Paul Koroma in March 1998 children were abducted and trained to perform amputations on civilians in areas within the Kono District, including Tombodu.[2169] Documentary evidence corroborates the occurrence of physical violence, including mutilations, in Tombodu.[2170]

1202. In about March 1998, Witness TF1-072 and thirteen other civilians were captured by “soldiers” and brought before their commander ‘Savage’ in Tombodu. ‘Savage’ used a cutlass to slap Witness TF1-072 on the back, accusing him of killing soldiers.[2171] He then cut the Witness severely with the cutlass on his upper right calf and on his left calf. Witness TF1-072 was also stabbed by one of Savage’s subordinates, ‘Small Mosquito’, in the left rib area following an order by ‘Savage’. The Trial Chamber was able to observe the scars from these incidents.[2172]

1203. ‘Savage’ then announced that he would cut off the hands of the fourteen captives, including witness TF1-072.[2173] The men were forced to lie on ground and were tied together. ‘Small Mosquito’ urinated on them. He then covered them with a mattress that he set on fire with the men still lying underneath. Witness TF1-072 was burnt on his shoulder before he managed to free himself. On account of his attempted escape ‘Savage’ flogged the Witness on his face so severely that his vision is permanently impaired.[2174] ‘Savage’ then ordered the witness to place his hand on a nearby tree stump and attempted to amputate his right hand. The Witness was so terrified that he defecated. His right hand was not entirely amputated, but permanently disfigured. The Trial Chamber was able to observe that the Witness’ fingers are mangled. He stated that he is unable to read or write as result of the assault.[2175] The witness was not shaken on cross-examination with regard to the identity of the commander ‘Savage’.[2176]

1204. In about May 1998, Witness TF1-334 watched ‘Savage’ personally amputate the hands of about fifteen civilians. The civilians were celebrating what they believed was an ECOMOG takeover of Tombodu when in fact it was ‘Savage’ and his men who were wearing Nigerian ECOMOG uniforms. ‘Savage’ retaliated against the civilians for celebrating what they believed was his defeat.[2177] The witness testified that ‘Savage’ told the civilians that “they should go and tell ECOMOG that he, Savage, was in Tombodu and this was to be a warning to the other civilians”.[2178]

1205. Witnesses TF1-033 and DAB-098 also testified that civilians were amputated by troops under the command of ‘Savage’ in Tombodu.[2179]

1206. In April 1998, witness TF1-216 was abducted and taken to Tombodu, along with a number of other civilians. At Tombodu, a commander called ‘Staff Alhaji’ ordered that the witness’ hands and the hands of five other civilians be amputated. Following the amputation they were told to go and see President Kabbah as “he [...] got one container [of] hands for us”.[2180]

(ii) Kaima/Kayima

1207. At an unspecified time in 1998, Witness TF1-074 was abducted by “rebels”, along with eighteen other civilians, and taken to Kayima where the rebel boss Komba Gbundema was headquartered.[2181] In Kayima, AFRC/RUF soldiers carved the letters “AFRC” or “RUF” with a surgical blade on the chests of each of the civilians. Witness TF1-074 was marked by a soldier named Bangalie and was carved with both “AFRC” and “RUF” letters.[2182] The witness described the people who captured him as belonging to the AFRC/RUF.[2183] As the witness testified that these events happened approximately two months after he had seen Johnny Paul Koroma passing through Kono District from Koidu Town, the Trial Chamber is able to conclude that the mutilation described took place around May 1998.[2184]

1208. The Brima Defence submits that the credibility of witness TF1-074 is undermined by inconsistencies between his testimony and his pre-trial statement as to whether particular individuals mentioned in his testimony were AFRC or RUF troops. The Brima Defence thus submits that RUF troops were solely responsible for the events described.[2185] While the witness may have been mistaken regarding the affiliation of particular troops, the Trial Chamber notes that witness TF1-074 testified consistently that both the AFRC and the RUF were present in Kayima. The witness testified that he was able to distinguish between the two groups since the AFRC soldiers wore combat while the RUF were armed but wearing civilian clothing.[2186] The Trial Chamber also accepts the detailed and credible evidence of witness TF1-074 that it was an AFRC soldier Bangalie who was responsible for marking his body.

1209. In March 1998, when witness DSK-103 arrived in Koidu Town, a number of amputees were being treated by ECOMOG. The amputees said their hands had been amputated by ‘Savage’s group.’[2187]

1210. In addition, documentary evidence corroborates the evidence given by the witnesses of physical violence by members of the AFRC/RUF in Kono District, including Kayima.[2188]

1211. From 6 April 1998 onward, the surgical teams of MSF at Connaught Hospital in Freetown started recording an increase in the number of patients suffering from severe mutilations. Between
6 April and 4 May 1998 Connaught Hospital received 115 patients,[2189] most of whom were severely mutilated. Most of them came from Kono.[2190] Some had received some basic medical treatment from ECOMOG just outside Koidu.[2191] They were brought to the hospital in ECOMOG trucks.[2192]

1212. The majority of patients suffered deep lacerations, broken limbs, field amputations and amputations. A few suffered gunshot wounds and the lips, ears and fingers of some had been cut.[2193] Of the 115 patients admitted to Connaught Hospital between 6 April and 4 May 1998 four men had had both arms amputated; 14 men had had one arm amputated; five men, in addition to having their arms amputated had a part of, one or both ears cut off; 23 patients had deep lacerations on lower arms, severed tendons, broken ulna and radius, as a result of cutlass attacks; seven patients had either a complete hand or several fingers missing as a result of cutlass attacks.[2194] Between 6 April 1998 and 27 July 1998, an MSF surgical team treated almost 300 patients with amputations, severe mutilations or gunshot wounds at the hospital. The majority of the cases treated were lacerations to the head or neck or amputations of arms, hands, fingers, ears or lips. This number represented, however, only a fraction of the number of such victims, many of whom never reached medical help.[2195] According to humanitarian agencies in Freetown, only about one in four victims of mutilations by rebel forces survived their injuries.[2196]

(iii) Finding

1213. By virtue of the foregoing, and leaving aside for the present the question of the criminal responsibility of the Accused, the Trial Chamber is satisfied beyond reasonable doubt that between 14 February 1998 and 30 June 1998, troops under the command of ‘Savage’ intentionally mutilated at least sixteen civilians by cutting off their limbs in Tombodu in Kono District, as charged under Counts 10 and 11. The Trial Chamber further finds beyond reasonable doubt that in this same period AFRC/RUF soldiers carved the letters ‘AFRC’ and ‘RUF’ on the bodies of eighteen civilians in Kayima in Kono District, as charged under Counts 10 and 11.

(c) Koinadugu District (14 February 1998 - 30 September 1998)

1214. The Indictment alleges that “[b]etween about 14 February 1998 and 30 September 1998, members of the AFRC/RUF mutilated an unknown number of civilians in various locations in the District, including Kabala and Konkoba (or Kontoba). The mutilations included cutting off limbs and carving ‘AFRC’ on the chests and foreheads of the civilians”.[2197]

1215. No evidence of physical violence was adduced in respect of Konkoba.[2198]

1216. In reaching the following findings of fact, the Trial Chamber has considered the entire evidence and relies on the testimony of Prosecution witness TF1-199 and Defence witness DAB-156, as well as exhibit P-51.

(i) Kabala

1217. Witness TF1-199, a member of an SBU (Small Boys Unit), testified that in approximately mid-May 1998, Lieutenant-Colonel ‘Savage’ led an attack by AFRC/RUF forces on Kabala Town. The witness participated in the attack and he testified that after the AFRC/RUF forces had successfully captured the town, they amputated the hands of an unknown number of civilians.[2199]

(ii) Findings

1218. By virtue of the foregoing, and leaving aside for the present the question of the criminal responsibility of the Accused, the Trial Chamber is satisfied beyond reasonable doubt that between about 14 February 1998 and 30 September 1998, members of the AFRC/RUF mutilated an unknown number of civilians by cutting off their limbs in Kabala in Koinadugu District. The Trial Chamber accordingly finds that the elements in relation to Counts 10 and 11 are established.

(d) Bombali District (1 May 1998 - 30 November 1998)

1219. The Indictment alleges that “[b]etween about 1 May 1998 and 31 [sic] November 1998, members of the AFRC/RUF mutilated an unknown number of civilians in various locations in Bombali district, including Lohondi, Malama, Mamaka, Rosos (or Rossos or Rosors). The mutilations included cutting off limbs.”[2200]

1220. No evidence of mutilations was led in respect of Lohondi, Malama, Mamaka.[2201]

1221. In arriving at the following findings of fact, the Trial Chamber has considered the entirety of the evidence and relies on the testimony of Prosecution witness TF1-269.

(i) Rosos

1222. During the rainy season of 1998, in Rosos, Witness TF1-269 was attacked by three persons she referred to as ‘rebels’. One of the rebels cut Witness TF1-269 in the back of her neck in an attempt to kill her.[2202] The Trial Chamber was able to observe a scar of about two inches on the neck of the Witness.[2203]

1223. The Trial Chamber however makes no finding on this incident as the only act of mutilation particularised in the Indictment is “cutting off limbs”.[2204]

1224. The Trial Chamber notes that a significant amount of evidence was led on mutilations in other locations in Bombali District, in particular in Karina.[2205] No findings have been made on this evidence as the locations were not pleaded in the Indictment.

(e) Freetown and the Western Area (6 January 1999 - 28 February 1999)

1225. The Indictment alleges that “[b]etween 6 January 1999 and 28 February 1999, members of the AFRC/RUF mutilated an unknown number of civilian men, women and children in various areas of Freetown, and the Western Area, including Kissy, Wellington and Calaba Town. The mutilations included cutting off limbs”.[2206]

1226. No evidence was adduced in relation to Calaba Town.

1227. The Prosecution led evidence of witnesses seeing amputated people or stating that ‘rebels’ committed amputations in various parts of Freetown and the Western Area.[2207] Documentary evidence confirms that in Freetown during January 1999, hundreds of civilians had their limbs amputated or were subjected to other forms of mutilation. The mutilations were usually inflicted with machetes or axes and the victims included men, women and children.[2208] While the Trial Chamber accepts this evidence as credible, given its general nature, the Trial Chamber relies on it to corroborate its findings on the more specific incidents described below.

1228. In arriving at the following findings of fact, the Trial Chamber has considered on the credible testimony of Prosecution witnesses TF1-083, TF1-084, TF1-085, TF1-098, TF1-153, George Johnson, TF1-184, TF1-278, and TF1-334.

(i) Freetown

a. Upgun

1229. The Trial Chamber has found that in January 1999, an attack on Fourah Bay was ordered by the Accused Brima in retaliation for the alleged killing of an AFRC soldier by civilians.[2209] Witness TF1-184 testified that prior to the troops commencing the attack, in the Kissy Old Road area, ‘Five-Five’ demonstrated an amputation on a civilian, explaining to them that a ‘long hand’ is the amputation of the hand, while a ‘short hand’ is the amputation of an arm around the bicep area (above the elbow and below the shoulder).[2210] Witness TF1-184 identified ‘Five-Five’ as the Accused Kanu.[2211]

b. Kissy Old Road

1230. Witness TF1-334 testified about a demonstration of an amputation carried out by ‘Five-Five’ subsequent to the attack on Fourah Bay, at Kissy Old Road. According to the witness, ‘Five-Five’ arrived at Upgun with Major Mines and Captain Kabila and announced that it was time for the amputations to begin. He stated that he would carry out the first amputations in order to set an example for the others. Kanu called for two civilians nearby to be brought to him and he amputated both hands of both civilians with a machete at their wrists, explaining the difference between what he referred to as ‘short sleeve’ and ‘long sleeve’ amputations. ‘Five-Five’ then told the civilians that since they voted for ‘Pa Kabbah’ they should go to him and ask him for hands. In the presence of the Accused Kanu, ten more civilians were then rounded up and Captain Kabila and Major Mines amputated them at the elbow. Major Mines told them to go to ‘Pa Kabbah’ or ECOMOG to complain.[2212]

c. ‘Operation Cut Hand’ at PWD

1231. Witness TF1-153 testified that while the headquarters was at PWD, a soldier came from Fourah Bay “with his head bust” reporting that the civilians there had been fighting the soldiers.[2213] The witness subsequently heard that ‘Bazzy’ had raided a WFP warehouse in the nearby area and collected a number of machetes he found there. Later that evening, the witness saw ‘Bazzy’ and overheard a conversation between him and SAJ Musa’s wife. Tina Musa asked ‘Bazzy’ why his men were holding machetes. According to the witness, ‘Bazzy’ replied “We are just [returning] from Operation Cut Hand”. The witness testified that from this conversation he understood that the machetes from the warehouse had been used to amputate people.[2214]

(ii) Kissy

a. Rowe Street

1232. The Trial Chamber has relied on the evidence of witness TF1-084 of his arrest in Rowe Street, Kissy, by rebels in January 1999 in its findings on unlawful killings.[2215] In addition to the evidence recounted therein, the witness stated the rebel commander, a certain Tafaiko, ordered that witness TF1-084’s hand was to be amputated. The rebels put witness TF1-084 on the ground, stood on his chest, stretched out his arms, and intentionally chopped off his hand with an axe.[2216]

b. Fatamaran Street

1233. On approximately 18 January 1999, witness TF1-098, his brother and his cousin were forced by rebels at gunpoint to follow them to a school on Fataraman Street.[2217] The witness described the rebels as being dressed in black T-shirts, some had soldier combats and tied mufflers with the American flag.[2218] Upon arrival at the school, four other civilians captured by the rebels were joined with the witness’ group. ‘Tommy’, one of the rebels, dressed in combat, amputated the hands of the seven captured persons, including the left hand of the witness. Having done so, the rebels told them to go to ‘Pa Kabbah’ and he would give them new hands.[2219] Witness TF1-098’s cousin died as a result of the amputation.[2220]

c. Old Road (Locust and Samuels area)

1234. On 22 January 1999, on Old Road in the Locust and Samuels area, witness TF1-083 and his family were captured by a group of rebels. The rebel commander told witness TF1-083 and others to lie flat on their backs to be killed or amputated. The rebels took two people to a corner and then returned with bloody knives. The commander ordered the rebels to cut off the hands of the remaining people. He said anyone whose hand is cut should go to Kabbah and ask him for a hand. One rebel stabbed witness TF1-083 with a knife in the left upper arm. The rebels chopped witness TF1-083’s hand off with two blows of an axe.[2221] The hand of a man named Pa Sorie was also cut.[2222] The rebels cut off the fingers of a man named Mussa. The commander ordered the rebels to cut off the entire hand and when Mussa begged for mercy, the rebels killed him.[2223]

d. Parsonage Street

1235. On 22 January 1999, witness TF1-278 was fleeing from the rebels with his family and some of his tenants with their families when they were stopped by four persons wearing SLA uniforms and one person wearing civilian clothes near Parsonage Street in Freetown.[2224] A soldier named ‘Captain Two Hand’ ordered the soldiers to cut off the tenant’s hands. A rebel in civilian clothes used an axe to cut off both of his hands. The soldiers told the tenant to “go and tell Tejan Kabbah this is what we have done. Go and tell no more politics, no more voting.”[2225] Soldiers then amputated witness TF1-278’s left hand. The witness testified that his child shouted “Hey, soldier, don't cut my father's hand, please. He is working for us.”[2226] One of the soldiers ordered that the child’s hand be amputated. The witness asked the soldier to amputate his right hand in exchange for sparing his child. The rebels amputated his right hand, before releasing the witness and the other civilians, telling them “You are the messenger of Tejan Kabbah. Go and tell Tejan Kabbah that we cut off your hand. Since you did not allow for peace we are saying good-bye to you.”[2227]

e. Old Shell Road

1236. At Old Shell road, immediately prior to the troops’ arrival at Kissy Mental Home, witness TF1-334 observed Osman Sesay a.k.a. ‘Changamulanga’ amputating six young civilian men at the elbow. ‘Changamulanga’ told the men to go to ‘Pa Kabbah’ and he would give them back their hands because they had voted for him. None of the three Accused were present during the amputations, but the troops subsequently moved to Kissy Mental Home to meet them.[2228]

f. Kissy Mental Home

1237. The Trial Chamber has found that the evening the troops arrived at Kissy Mental Home during the retreat from Freetown in January 1999, in the presence of the Accused Kamara and the Accused Kanu, the Accused Brima issued an order to the troops to burn houses and kill civilians in retaliation for their support of ECOMOG.[2229] In addition to ordering the witness to kill people in the PWD area, the witness overheard the Accused Brima ordering ‘Changamulanga’, ‘Mines’ and Colonel Kido to go towards the “low cost area” and amputate people.[2230] However, the witness did not testify as to whether this order to commit amputations was carried out. The Trial Chamber therefore does not make a finding of physical violence on this evidence. However, the Trial Chamber considers this evidence to generally corroborate the findings of physical violence made below in relation to Kissy Mental Home.

1238. Witness George Johnson testified that on the day that the troops arrived at Kissy Mental Home, the Accused Kanu ordered the soldiers, in the presence of the Accused Brima, the Accused Kamara and other commanders, to go to the eastern part of Freetown and amputate up to 200 civilians and send them to Ferry Junction. After the order was given, the witness observed fighters, including Kabila, ‘Born Naked’, ‘Cyborg’, and ‘SBU Killer’, moving towards the eastern part of Freetown. On their return, their machetes were covered with blood and they brought with them many amputated arms.[2231]

1239. Witness TF1-184 testified that while the troops were at Kissy Mental Home, AFRC soldier Kabila told ‘Gullit’ that “the civilians are pointing their hands at our own crowd here," implying that the civilians were divulging the troops’ position to ECOMOG. In the presence of the witness, ‘Gullit’ said “that the hand that they are pointing at us, the fingers that are pointing at us, we shall ensure that all their hands are amputated.” [2232] When asked if anything occurred as a result of the Accused Brima’s words, the witness testified that about one and a half hours later, AFRC soldier ‘Mines’ returned to Kissy Mental Home with a bag full of hands which he showed to ‘Gullit’ and others, including the witness.[2233] The Trial Chamber is satisfied beyond reasonable doubt from this testimony that ‘Mines’ amputated an unknown number of civilians pursuant to the order issued by the Accused Brima.

1240. Witness TF1-184 testified that during the period that the troops were at Kissy Mental Home, he observed ‘Gullit’ amputating a civilian’s hand at Shell Company by Old Road.[2234]

1241. George Johnson testified that at Kissy Mental Home, a soldier named Kabila amputated the arms of a captured Nigerian ECOMOG soldier.[2235] The witness observed FAT Sesay writing a letter, which Kanu placed the around the ECOMOG soldier’s neck. The ECOMOG soldier was sent to meet other ECOMOG soldiers at Ferry Junction.[2236] The Trial Chamber notes that this incident was not directed against the civilian population, but against a combatant. Therefore the Trial Chamber will consider this incident only in relation to Count 10.

(iii) Wellington

1242. Witness TF1-085 testified that in January 1999, ‘rebels’ broke the door to her mother’s house in Wellington where she was hiding along with some other civilians. The ‘rebels’ cut off the hand of one of the children, aged four or five years, who had been hiding in the house. The witness was then abducted by the rebels.[2237] The witness’ testimony regarding subsequent events has been considered in the Trial Chamber’s findings on outrages on personal dignity.[2238]

(iv) Findings

1243. In light of the foregoing evidence, and leaving aside for the present the individual responsibility of the three Accused, the Trial Chamber is satisfied beyond reasonable doubt that between 6 January 1999 and 28 February 1999, members of the AFRC fighting forces mutilated at least 237 civilians and one soldier by cutting off their limbs in various areas of Freetown and in Kissy and Wellington in the Western Area. The Trial Chamber accordingly finds that the elements in relation to Count 10 (violence to life, health and physical or mental well-being of persons, in particular mutilation) and Count 11 (other inhumane acts) have been established in Freetown and the Western Area.

E. Child Soldiers

1. Allegations and Submissions

1244. In Count 12, the Accused are charged with “conscripting or enlisting children under the age of 15 years into armed forces or groups, or using them to participate actively in hostilities”, punishable under Article 4(c) of the Statute. Paragraph 65 of the Indictment alleges that “[a]t all times relevant to this Indictment, 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.”

1245. In its Pre-Trial Brief, the Prosecution added that the evidence would demonstrate that: “Thousands of children were abducted from all over Sierra Leone; Thousands of children underwent military training at AFRC/RUF camps; Children were formed into Small Boys Units and Small Girls Units; and Armed Small Boys Units and Small Girls Units were used in combat.”