Analysis

Essay on the CDF Appeals Decision

13 September 2008 at 23:12 | 883 views

By Cosette Creamer, USA.

About the CDF Trial
The Special Court for Sierra Leone (SCSL) issued an indictment against the three accused
persons of the Civil Defence Forces (CDF), Sam Hinga Norman, former Deputy Defence
Minister and later Minister of Internal Affairs; Moinina Fofana, alleged to be the National
Director of the CDF; and Allieu Kondewa, alleged to be the High Priest of the CDF between
March and June 2003. The indictment include 8-counts for crimes against humanity, violations
of Article 3 Common to the Geneva Conventions and of Additional Protocol II (commonly
known as war crimes), and other serious violations of international humanitarian law.

Sam Hinga Norman being the First accused made his initial appearance at the temporary
courthouse on Bonthe Island on 15 March 2003. Mr. Norman pleaded not guilty to all charges
against him. Messrs. Fofana and Kondewa, Second and Third accused respectively also pleaded
not guilty to all the charges against them when they were arraigned before the Court at the
temporary courthouse on July 1, 2003. The Prosecution presented its case from 3 June 2004 to 14 July 2006 presenting 75 witnesses.
From 19 January to 18 October 2006, the Defence presented 44 witnesses. Closing arguments
were made from 28-30 November 2006.

The specifics of the charges include:
Unlawful killings
1. Murder *1
2. Violence to life, health and physical or mental well-being of persons, in particular murder *2
Physical violence and mental suffering
3. Inhumane acts *1
4. Violence to life, health and physical or mental well-being of persons, in particular cruel treatment *2
Looting and burning
5. Pillage *2
Terrorizing the civilian population and collective punishments
6. Acts of terrorism *2
7. Collective punishments *2
Use of child soldiers
8. Conscripting or enlisting children under the age of 15 years into armed forces or groups or using them to
participate actively in hostilities.

Following that, first accused Hinga Norman was
hospitalized in Dakar to undergo a surgery. Unfortunately, he passed away on 22 February 2007
in Dakar. On 20 July 2007, the Court issued its judgement and Fofana was found guilty on
Counts 2, 4, 5 and 7. Kondewa is found guilty on Counts 2, 4, 5, 7 and 8. The case against Hinga
Norman was dropped since he is deceased. The Trial Chamber sentenced Fofana to 6 years and
Kondewa to 8 years.

The Appeals phase- Second Accused Moinina Fofana and Third Accused Allieu Kondewa- was
concluded on 28 May 2008. The Appeals Chamber re-sentenced Fofana to 15 years as opposed
to the original 6 year term and Kondewa to 20 years as opposed to the original 8. Mr. Fofana
never appealed his original sentence. Kondewa appealed but in either case, it was the
Prosecution’s appeal for higher sentences that was ruled upon. The convicts are still at the
Special Court premises in Sierra Leone.
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Introduction
One of the most controversial aspects of the Civilian Defense Forces (CDF) trial before the
Special Court for Sierra Leone (SCSL) has been whether and how the idea of a ‘just cause’ is
relevant to the prosecution of international criminal law violations. The idea that the CDF were
fighting for a ‘just cause’ - namely the restoration of the democratically elected government of
President Tejan Kabbah - has been raised as a defense to the crimes committed, as material to
establishing the elements of the crimes charged, and as a mitigating factor in sentencing
decisions. Some argue that the idea of a ‘just cause’ has absolutely no place in adjudicating
crimes under international humanitarian law, which does and should apply equally to all parties
to a conflict regardless of their reasons for fighting.

Others argue that claims of a ‘just cause’ are
relevant to establishing the nature of the crimes committed and as a mitigating factor in
sentencing decisions. Both the Majority Opinion in the CDF Appeal Judgment1 and the
Honourable Justice George Gelaga King’s dissenting opinion adopt a different approach and
attempt to differentiate between claims of a ‘just cause’ and the reasons a group has for fighting.

In doing so, both opinions help illuminate how the ‘reasons for fighting,’ regardless of the
perceived justness of the cause, may be legally and evidentially relevant to adjudicating
international crimes. While claims of a ‘just cause’ imply that a party was fighting for a
legitimate purpose, or on the ‘right’ side, references to a party’s ‘reasons for fighting’ do not
imply such a normative judgment, and instead are merely descriptive of the end goal or objective
of a party.

Given that the idea of a ‘just cause’ is often viewed as a divisive political issue, it might make
sense for internationalized criminal tribunals to absolutely prohibit such considerations from
entering into judicial proceedings. To be sure, claims of a ‘just cause’ do not provide an excuse
for violations of international humanitarian or criminal law. If one looks at the underlying
tenants of Just War Theory, as propounded by 16th and 17th century philosophers, a just cause
only provides a group with an excuse to resort to war as such. In fact, one of the defining
elements of a Just War was that the party must fight the war ‘justly’ - that is, abide by the laws
of war, which today would include international humanitarian and criminal law. While in
principle claims to a ‘just cause’ have no place in determining whether or not parties to a conflict 1 See Prosecutor v. Fofanah and Kondewa, Judgment, SCSL Appeals Chamber, Case No. SCSL-04-14-A (May 28,
2008) [hereinafter CDF Appeal Judgment].
2 See Prosecutor v. Fofanah and Kondewa, Judgment, “Partially Dissenting Opinion of Hon. Justice George Gelaga
King,” SCSL Appeals Chamber, Case No. SCSL-04-14-A (May 28, 2008) [hereinafter King’s Dissenting Opinion].
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are permitted to violate the laws of war, the ‘reasons for fighting’ themselves may sometimes be
evidentially material to establishing the requisite elements of crimes against humanity,
completely apart from the ‘justness’ of these reasons.

This paper will provide a brief summary
and analysis of the CDF Appeal Judgment and Justice King’s dissenting opinion, paying
particular attention to how the ‘reasons for fighting’ may be separated from considerations of
‘just cause,’ their legal relevance in charges that the CDF committed crimes against humanity
and their use as a mitigating factor in sentencing decisions.
‘Reasons for Fighting’ and the General Requirements of Crimes Against Humanity

The CDF Trial Judgment entered verdicts of not guilty for both accused, Moinina Fofana and
Allieu Kondewa, for Counts 1 and 3, charging crimes against humanity of murder and other
inhumane acts.3 A majority of the Appeals Chamber, with Justice George Gelaga King and
Justice Jon Kamanda partially dissenting, reversed these decisions and entered guilty verdicts for
both counts. The Statute of the SCSL defines crimes against humanity as the commission of
“crimes as part of a widespread or systematic attack against any civilian population.”

Thus in
order to establish the commission of a crime against humanity (CAH), the Prosecution needed to
prove beyond a reasonable doubt, inter alia, that attacks by the CDF and the Kamajors were
directed “against any civilian population.” This is one of the general or ‘chapeau’ requirements
for crimes against humanity that must be proven in addition to the actual commission of the
specific crime, i.e. murder.5 The Trial Chamber found that the Prosecution had not established
this requirement beyond reasonable doubt, based on evidence that attacks by the CDF and the
Kamajors were directed against rebel forces, specifically the Revolutionary United Front (RUF)
and the Armed Forces Revolutionary Council (AFRC), and the Prosecution’s admission that the
CDF and the Kamajors “fought for the restoration of democracy.”6

On its first ground of appeal, the Prosecution submitted that the Trial Chamber had erred in both
law and fact in not finding this general requirement of an attack directed against any civilian
population.7 The Prosecution first submitted that the Trial Chamber erred as a matter of law in 3 See Prosecutor v. Norman, Fofanah and Kondewa, Judgment, SCSL Trial Chamber I, Case No. SCSL-04-14-J
(August 2, 2007) [hereinafter CDF Trial Judgment].
4 See the Statute of the Special Court for Sierra Leone, Article 2.

5 See Steven R. Ratner and Jason S. Abrams, Accountability for Human Rights Atrocities in International Law:
Beyond the Nuremberg Legacy, 2nd Ed. (Oxford: Oxford University Press, 2001), pp. 58-79.
6 CDF Trial Judgment, para. 693.
7 Prosecution Appeal Brief, para. 2.5.
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basing its finding on evidence that attacks were directed against the rebels or juntas.8

The
Prosecution argued the Trial Chamber effectively adopted the view that, as a matter of law, an
attack cannot be directed against a civilian population if there are civilian casualties during an
attack against opposing military forces. The Prosecution further argued the Trial Chamber erred
as a matter of law in finding that the CDF ‘fought for the restoration of democracy,’ because this
is not and should not be a material consideration in determining whether or not crimes against
humanity were committed, given that international humanitarian law applies equally to all parties
to a conflict.9

To this end, the Prosecution submitted that a distinction must be drawn between
the purpose and the target of the attack, and that the purpose - i.e. fighting for the restoration of
democracy - is not relevant to ascertaining the target - i.e. a civilian population.
In its Response Brief, the Defense for Fofana maintained that the CDF attacks were never
directed against the civilian population but against military targets, and that many acts of the
Kamajors were isolated, random and unauthorized by the CDF.10 In addition, the Defense
submitted that the CDF’s policy was never to terrorize civilians, since this would be contrary to
protecting civilians from rebel forces, the main purpose behind the establishment of the CDF.11

The Defense counsel for Kondewa submitted that the finding that the CDF fought to restore the
democratically elected government is in fact relevant to establishing that the civilian population
was not the specific or primary target of the attacks.12 This argument implies that the reasons for
fighting, which sometimes may unfortunately be portrayed as a ‘just cause,’ should have legal
importance for establishing or disproving the necessary context for crimes against humanity.
Kondewa’s defense essentially argued that the existence of a plan or policy -which is often
established through evidence of a party’s ‘reasons for fighting’ or their objective - has been
found relevant to proving that an attack was directed against a civilian population in the
jurisprudence of the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the
International Criminal Tribunal for Rwanda (ICTR).13

For this reason, it should also be
evidentially relevant to proving that an attack was not directed primarily against a civilian
population. The Defense’s argument is subtle and one must be careful not to place too much 8 Prosecution Appeal Brief, para. 2.16; CDF Trial Judgment, para. 693.
9 Prosecution Appeal Brief, para. 2.51.
10 Fofana Response Brief, para. 6. To support this, Fofana’s Defense refers to the Trial Chamber’s finding that
“[a]lthough the CDF were a cohesive force under one central command, there were some fighters who acted on their
own without the knowledge of central command.” Ibid., para. 7.
11 Ibid., para. 16.
12 Kondewa Response Brief, para. 1.8.
13 Ibid. See also, CDF Appeal Judgment, para. 241.
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emphasis on how the reasons for fighting can help establish the absence rather than the presence
of a particular policy. Nevertheless, it highlights the fact that descriptive evidence of a party’s
reasons for fighting are evidentially relevant to elucidating the underlying objective - and thus in
some cases the object or target - of a party’s military operations.

If one considers in more detail the required context for the commission of crimes against
humanity, one begins to see how and why the reasons for fighting are legally and evidentially
relevant.14 Firstly, it is important to note that the concept of an ‘attack’ in the context of CAH is
distinct from the concept of an attack or armed conflict in the context of war crimes. A military
operation is not necessarily an attack against a civilian population even if - or because -
breaches of the laws of war occur or there are heavy civilian casualties.

The contextual CAH
prerequisite of an ‘attack’ is only established to the extent that a military operation can be shown
to be aimed or directed at a civilian population. More specifically, a court must determine that
the attack was directed primarily against a civilian population, and was not just the consequence
of an excessive use of military power. The CDF Trial Chamber did adopt this dictum from the
ICTY Appeals Chamber15 that ‘directed against’ in the context of CAH implies that the civilian
population is the primary object rather than an incidental target of an attack. An attack can still
be considered as primarily directed against a civilian population if the court is satisfied that in
pursuance of a military purpose, a party to a conflict has specifically or indiscriminately targeted
the civilian population within those places over which it wished to gain military control.

However, civilian casualties do not in and of themselves render the attack as one directed
‘against a civilian population’ for the purposes of CAH. The question then is how a Court
ascertains that an attack is directed against a civilian population, particularly if it is in pursuance
of a military purpose. Here the ad hoc tribunals have largely relied on evidence of whether there
is a political objective or a plan pursuant to which the attack is perpetrated or an ideology, in the
broad sense of the word, to destroy, persecute or weaken a community.16 The Blaskic Trial 14

For good overviews of the development of crimes against humanity and their elements, as well as pertinent
judicial decisions, see Anthony Cassese, International Criminal Law (Oxford: Oxford University Press, 2003): 64-
95; Kriangsak Kittichaisaree, International Criminal Law (Oxford: Oxford University Press, 2002): 85-128;
Gunal Mettraux, “Crimes Against Humanity in the Jurisprudence of the International Criminal Tribunals for the
Former Yugoslavia and for Rwanda,” 43 Harvard International Law Journal (2002): 237-316.
15 See Prosecutor v. Kunarac et al, Judgment, ICTY Appeals Chamber, Case No. IT-96-23 & IT-96-23/1-A (12 June
2002) [hereinafter Kunarac Appeal Judgment], para. 92. See also CDF Trial Judgment, para. 114.
16 See Prosecutor v. Tihomir Blakic, Judgement, ICTY Trial Chamber, Case No. IT-95-14-T (3 March 2000)
[hereinafter Blaskic Trial Judgment], paras. 203-206.
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Chamber, for instance, did consider whether the attacks in question were designed to be
responses to military aggression or had military objectives.17 In the context of the conflict in the
former Yugoslavia and the systematic nature of attacks that were directed against specifically
Muslim civilian populations, it concluded that the attacks could not have been justified by
military objectives.
The ICTY has adopted a liberal interpretation of the term ‘civilian,’ which the SCSL has largely
followed. For instance, the ICTY has held that ‘civilian’ includes victims who at one time bore
arms, and that at a minimum the “Prosecution must show that the perpetrator could not
reasonably have believed that the victim was a member of the armed forces.”18

Under customary
international law, as well as the jurisprudence of the ICTY and ICTR, the victims of CAH may
include military personnel or rebel forces who are hors de combat - who have laid down arms or
are injured.19 However, the targeted population must still be predominantly civilian in nature,
and non-civilians are victims because of their membership or presence within the civilian
population that is targeted by the accused or the attack.
The ad hoc tribunals have also emphasized the policy of targeting civilian populations as an
important part of the context of CAH. In fact, “[i]t is the existence of such a policy that endows
the criminal act with a great dimension which warrants its punishment as a crime against
humanity.”20

A policy of attacks against a civilian population is one of the main aspects of
proving the commission of a CAH, and is often used to establish the ‘systematic’ component of
such attacks. This supports the argument that the grounds for commission or the reasons for
fighting - which are often outlined within a group or organization’s official policy - are very
much relevant to elucidating whether or not such a policy was intentionally targeting civilian
populations or alternatively solely military targets or rebel forces.

While they are not necessarily
determinative, the reasons for fighting do provide evidence either supporting or undermining the
contention that particular attacks were direct against a civilian population, and thus cannot
automatically be discounted. Both the Majority Opinion and Justice King’s Dissenting Opinion 17 See ibid., paras. 425-28, 573-79, 623-34, 676-78.
18 Prosecutor v. Kunarac et al, Judgment, ICTY Trial Chamber, Case No. IT-96-23-T & IT-96-23/1-T (22 February
2001) [hereinafter Kunarac Trial Judgment], para. 435.
19 See Prosecutor v. Mrksic and Others (Vukovar Hospital Case), Judgment, ICTY Trial Chamber II, Case No. IT-
95-13/1 (27 September 2007), paras. 29-32; Blaskic Trial Judgment, paras. 210, 216; Prosecutor v. Kayishema and
Ruzindana, Judgment, ICTR Trial Chamber, Case No. ICTR-95-1-T (21 May 1999) [hereinafter Kayishema Trial
Judgment], para. 127.
20 Kayishema Trial Judgment, paras. 124-6.
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recognize this, but address the distinction between a ‘just cause’ and the reasons for fighting
differently, based on how they interpret the argument that the CDF were fighting for the
restoration of a democratically elected government.

The Appeals Chamber, in its majority opinion, first denied the Prosecution’s argument that the
Trial Chamber made its finding that the CDF fought for the restoration of democracy a decisive
consideration in its judgment.21 Not surprisingly, it emphatically rejected the idea that fighting
for the restoration of democracy could provide a justification for the commission of crimes
against humanity. However, instead of attempting to differentiate between the idea of a ‘just
cause’ as justification and the ‘reasons for fighting’ as material to the determination of the
context of CAH, the Appeals Chamber instead decided to interpret the Trial Chamber’s judgment
as not heavily relying on the finding that the CDF were fighting for the restoration of democracy.

For this reason, the Appeals Chamber did not consider whether or how the finding could be
material to the contextual elements of CAH. It did, however, note the argument of Kondewa’s
Defense Counsel that because the reasons for fighting can be evidentially material to establishing
a policy of attacking civilian populations, they should also be evidentially material to
establishing the absence of such a plan.22
The Appeals Chamber also denied the Prosecution’s alternative submission of legal error, that
the Trial Chamber had rejected the possibility that civilians were targeted merely because there
was evidence of attacks directed against rebel forces.

The Appeals Chamber was unable to
conclude that the Trial Chamber considered as a matter of law that a military attack cannot
coexist with an attack directed against any civilian population.23 Thus the Appeals Chamber did
not reverse the Trial Chamber’s verdict of not guilty on the basis of the misapplication of the
legal principles of CAH.
In his dissenting opinion, Justice King first considered whether the finding that the CDF was
‘fighting for the restoration of democracy’ is a material consideration in determining whether a
civilian population is the primary object of an attack.

While he agreed with the Prosecution’s
contention that international humanitarian law applies equally to all sides of a conflict, he did not
think the Trial Chamber was necessarily referring to which side of the conflict was in the right. 21 CDF Appeal Judgment, para. 247-9.
22 Ibid., para. 241.
23 Ibid., para. 251-2.
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For him, the Trial Chamber was actually referring to the fact that the object of attacks by the
CDF and the Kamajors was the AFRC and the RUF, in order to restore the elected government.
For Justice King, this is a relevant factor in evaluating the “totality of the evidence” to determine
whether or not the attacks were primarily directed against civilians or, alternatively, rebel
forces.24 In particular, it is a relevant factor in determining whether the charges put forth in the
Prosecution’s indictment - that the CDF was fighting to gain control of the territory and
population of Sierra Leone - had been sufficiently proven.25
Justice King argued that the evidence did not support these charges, given that the CDF were
fighting to restore the democratically elected government and not to “gain complete control over
the population of Sierra Leone.”26 While he stated numerous times that the reasons for fighting
were materially relevant, he did not specify how exactly they might be important in determining
whether the attacks were directed against the civilian population.

One could further elaborate on
Justice King’s position to argue that the reasons for fighting provide evidence of the object of
attack and not simply the purpose of the attack. Often, the reasons for fighting or the purpose of
an attack - the very policy behind the attack that must be established to prove the systematic
requirement of the CAH - will inform which objects of attack are chosen. While the two are not
equivalent, they are also not mutually exclusive. The purpose of the attack can elucidate what
the intended targets were, but it is not exclusively determinative of those targets.

The second issue raised by the Prosecution on appeal was whether the Trial Chamber erred as a
matter of fact in finding the absence of attacks directed against a civilian population. In
reviewing the Trial Chamber’s findings that attacks were not directed against any civilian
population, the Appeals Chamber first noted that this conclusion was “devoid of articulation of
its reasoning” and that the Trial Chamber “misdirected itself when applying the [legal] principle
it had already stated, by confusing the target of the attack with the purpose of the attack. When
the target of the attack is the civilian population, the purpose of that attack is immaterial.”27
While this latter statement is certainly true, the Appeals Chamber put the cart before the horse.
The issue before both the Trial and the Appeals Chamber was whether a civilian population was
the target, and the purpose of the attack can be evidentially relevant in adducing whether this is 24 King’s Dissenting Opinion, paras. 28-9.
25 CDF Indictment, para. 19.
26 Ibid.
27 CDF Appeal Judgment, paras. 298, 300.
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the case; only if and when it is found that a civilian population was the target, does the purpose
of the attack lose its relevance and become immaterial. In other words, the purpose of the attack
is material to whether a civilian population is the target but only becomes immaterial when a
civilian population is the target.
The Appeals Chamber then reviewed the record with respect to each attack and found sufficient
evidence of targeted attacks against civilians as a group or population. Of particular importance
for the Appeals Chamber was the Trial Chamber’s own finding that there were incidents when
the CDF or the Kamajors committed crimes after combat operations against the AFRC had
already ceased.28

The Appeals Chamber thus granted the Prosecution’s submission of an error of
fact and reversed the acquittals on the basis of its own findings of fact. This is particularly
important if one considers the rationale behind and normative desirability of appellate review of
acquittals, addressed below.
Justice King dissented as to whether the attacks by the CDF and Kamajors were in fact directed
against any civilian population. He disagreed with the Appeals Chamber’s findings that in
Tongo, Bo, Kenema and Korbondo, the Kamajors and the CDF engaged in attacks directed
against the civilian population. He first considered whether attacks in these areas had a military
objective, and supported the Trial Chamber’s findings, for example, that these attacks were
military operations against rebels in Tongo and that there were only eleven civilian casualties in
Koribondo.

Although this is never fully elaborated, Justice King could have further argued that
such attacks cannot be considered directed against a civilian population, because they were
military operations not directed against civilians per se (so do not satisfy the systematic or policy
requirement for CAH), and the extent of civilian casualties was not sufficiently widespread to
constitute a crime against humanity (under the alternative widespread requirement).
Justice King argued that the Trial Chamber looked for relevant legal authority and principles and
applied those principles to the factual findings made. He thus disagreed with the Appeals
Chamber’s contention that the Trial Chamber’s opinion is devoid of “articulation of its
reasoning.”

He also disagreed with the Prosecution’s charge that it is “apparent” from the Trial
Chamber’s findings that it considered, as a matter of law, that an attack is not “directed against
the civilian population if civilians are attacked in the course of attacks directed against opposing 28 CDF Appeal Judgment, para. 305; CDF Sentencing Judgment, para. 85.
12
forces,” a contention that a majority of the Appeals Chamber also rejected.29 Justice King
argued that this view cannot be attributed to the Trial Chamber, because it did examine the
evidence and then arrived at the conclusion that the evidence did not prove beyond a reasonable
doubt that the civilian population was the primary - as opposed to an incidental - object of the
attack.

Justice King also did not agree with the Appeals Chamber’s view that the Trial Chamber
confused “the target of the attack with the purpose of the attack.”30 For Justice King, the Trial
Chamber was actually saying that the Prosecution had not proven that the civilian population was
the primary object or target of the attack, and that there was substantial evidence supporting a
finding the primary object was the AFRC and its allies (a military target) and not the civilian
population.31 Though Justice King never explicitly makes this point, he could have argued that
while the purpose of the attack may not be determinative, it is in fact entirely relevant to
establishing the target of the attack, given that the objective or purpose of a particular attack
partly determines the objects or targets against which it is directed. This is especially relevant in
ascertaining whether the contextual requirements for CAH - a widespread or systematic attack
against any civilian population - have been established.

Justice King’s dissent partially derives from the role he argued the Appeals Chamber should
adopt in reviewing findings of fact, particularly on appeals from acquittals. For Justice King, the
Appeals Chamber should not usurp the Trial Chamber’s power to enter findings of fact in the
first instance, because it “has not heard the evidence and it might select pieces of evidence which
tend to support its findings of fact, whereas countervailing evidence may, in the circumstance,
not be given the weight that the Trial Chamber, which saw and heard the witnesses, gave to it.”32
Thus the Appeals Chamber should largely defer to the Trial Chamber’s findings of fact, and it is
“only where the evidence relied on by the Trial Chamber could not reasonably have been
accepted by any reasonable person that the Appeals Chamber can substitute its own finding for
that of the Trial Chamber.”33 This is particularly true when the Appeals Chamber is considering
an appeal from an acquittal. While legally, under international law, an appellate court can
reverse an acquittal on the basis of errors of law and fact, from a normative point of view one 29 Prosecution Appeal Brief, para. 2.16.
30 CDF Appeal Judgment, para. 304.
31 King’s Dissenting Opinion, para. 53.
32 Ibid., para. 44.
33 King’s Dissenting Opinion, para. 55, quoting ICTY Delalic et al, Appeal Judgment, para. 458.
13
can argue that it should be especially careful in doing so solely on the basis of errors of fact,
given that this conflicts with the idea of double jeopardy in some legal systems.

While civil and common law systems differ substantially in the scope of appeals permitted, if
one reviews the various proposals put forth during the drafting of the ICTY Statute, on which the
SCSL Statute is largely based, only one proposal put forth by the Organization of the Islamic
Conference suggested that prosecutorial appeals should be permitted on both issues of law and
fact.34 The majority of the proposals either suggested no basis for prosecutorial appeals, or that
such appeals should be limited to reviewing errors of law. With no clear rationale or
commentary, but arguably to appease all of the negotiating parties, the adopted ICTY Statute
provided for a wide scope of appeal for both the prosecution and the defense.

Admittedly, this
supports the idea of a broad provision of ‘equality of arms.’ However, the primary justifications
for appellate review in ad hoc tribunals, namely consistency of decisions and the development of
law, do not usually apply to appellate review of findings of fact, given that factual decisions have
little if any relevance beyond the individual case.35
Common law systems generally do not allow factual review of acquittals in trials by a jury or
bench trials, since this violates the presumption of innocence. Civil law systems vary depending
on the structure and trial process of their lower and upper courts. One justification put forth for a
broad scope of appellate review is justice in the individual case.

Appellate review of factual
issues in the case of reviews of convictions certainly does further the interest of justice in the
individual case, given the severity of the punishment that accompanies a conviction. It is
debatable whether appellate review of factual issues in the case of acquittals also furthers this
interest. For example, if the appellate court reaches a different conclusion regarding the facts,
this in itself might demonstrate ‘reasonable doubt,’ indicating that the prosecution has not
fulfilled its burden of proof. In the ad hoc courts, an acquittal by a three-judge panel is arguably
less likely to be subject to evidentiary misunderstandings than a jury verdict or a verdict by a
single judge, and thus the practical need for prosecutorial appeals from acquittals on questions of
fact is reduced.36

In fact, if any error in interpreting or evaluating the evidence is made, it is more
likely to be made by the Appeals Chamber, which is further from the record and the witnesses. 34 See Mark C. Fleming, “Appellate Review in the International Criminal Tribunals,” 37 Texas International Law
Journal (2002): 111-155, at 118-19.
35 Ibid., pp. 135-6.
36 It should be noted that this criticism does not apply to prosecutorial appeals on issues of fact where the defendant
bears the burden of proof, for instance if the Trial Chamber acquitted on the basis of an insanity defense.
14

One commentator has argued that the “legitimacy of the international tribunals, which relies in
large part on their ability to deliver fair justice through fair procedures, could be compromised if
the accused is in danger of being convicted as long as one of two chambers concludes that he is
guilty. The interest in preserving justice in the individual case recommends that a conviction
stand only if both chambers agree that a conviction is reasonable in light of the evidence.”37

Just
because Article 20 of the Statute of the SCSL provides for a broad scope of prosecutorial appeal
on acquittal does not in itself normatively justify appellate review of questions of fact in the case
of an acquittal and does not lessen the severity of the criticisms levied against this practice.
While in the near future, a broad scope of prosecutorial appeal is likely to be retained in the ad
hoc tribunals, it is an issue underpinning Justice King’s dissent in the CDF Appeal Judgment and
one that deserves further consideration as international criminal procedure develops.
Mitigating Factors in Sentencing Decisions: CDF’s ‘Just Cause’ and Motive of Civic Duty

The sentencing inquiry undertaken by Trial Chambers in the ad hoc tribunals entails wide
discretion and is similar to that in common law countries, where there are no fixed penalties and
courts are not constrained by previous sentences that have been handed down. Instead, sanctions
are purportedly tailored to fit the unique circumstances of each offence and the individual
circumstances of the offender. Central to this inquiry is the principle of proportionality - that the
severity of the sanction should be commensurate with the gravity of the offence.38

In determining
the length of a sentence, a Trial Chamber is first required to establish a penalty proportionate to
the seriousness of the crime and then required to take into account any individualized
aggravating and mitigating circumstances, though the ad hoc tribunals have rarely indicated the
weight given to each consideration. The aggravating circumstances should be proven beyond
reasonable doubt, while mitigating factors may include those not directly related to the offence
and only need to be established by a balance of probabilities.39

Although the tribunals have proffered a number of rationales for sentencing, their decisions
rarely elaborate on how the sentences imposed will actually further these objectives. As some
commentators argue, international sentencing law is so “indeterminate that sentencers are free to 37 Fleming, p. 140.
38 For an overview of the sentencing practices of the ad hoc tribunals, see Mirko Bagaric and John Morss,
“International Sentencing Law: In Search of Justification and a Coherent Framework,” 6 International Criminal Law
Review (2006): 191-255.
39 See, for example, Prosecutor v. Dragan Nikolic, Sentencing Judgment, ICTY Trial Chamber II, Case No. IT-94-2-
S (18 December 2003), para 145.
15
switch from one rationale to another as they choose.”40

Another commentator has suggested that
international sentencing practices may actually undermine the legitimacy of the international
criminal justice system and its contribution to local or more holistic processes of transitional
justice, by not adequately “relating the outcomes of international sentencing to local perceptions
of justice.”41 Supporting this skepticism is the fact that it is difficult to empirically substantiate
claims that international sentences do in fact contribute to the rationales often advanced, such as
peace, reconciliation, retribution or deterrence. This implies that the gap between “what victims
and victimised communities perceive as justice and what passes as international criminal justice”
may remain.42

Though it is debatable whether this critique can really be generalized to all ad hoc
tribunal decisions, the difficulty of relating an internationalized form of justice in the form of
international sentences to the local context of Sierra Leone is particularly apparent in the diverse
reactions by Sierra Leoneans to the CDF Appeals Judgment.
The Trial Chamber in the CDF case held, with Justice Bankole Thompson dissenting, that there
was no defense of ‘necessity’ in international criminal law, and that ‘necessity’ could not be
taken into account as a mitigating factor in sentencing. However, the Trial Chamber did
consider as mitigating factors that the Defendants and the CDF/Kamajors were “fighting to
support a legitimate cause which...was to restore the democratically elected government of
President Kabbah,” that they fought with the support of ECOMOG, and that this “contributed
immensely to re-establishing the rule of law.”43 It also concluded that “the contribution of the
two Accused Persons to the establishment of the much desired and awaited peace in Sierra Leone
and the difficult, risky, selfless and for a very sizeable number of their CDF/Kamajors, the
supreme sacrifices that they made to achieve this through a bloody conflict, is in itself a factor
that stands significantly in mitigation in their favour.”44

With regard to motive of civic duty, it
found that the Defendants did not join the conflict for ‘selfish reasons’ and that they “acted from
a sense of civic duty rather than for personal aggrandizement or gain.”45
40 Bagaric and Morss, at 208.
41 Ralph Henham, “International Sentencing in the Context of Collective Violence,” 7 International Criminal Law
Review (2007): 449-468, at 451.
42 Ibid., at 452.
43 CDF Sentencing Judgment, paras. 79, 83, 87.
44 Ibid., para. 91.
45 Ibid., para. 94.
16

On appeal, the Prosecution alleged ten errors of the Trial Chamber in its sentencing decision.
The Appeals Chamber gave credence to only one alleged error, that of “treating the ‘just cause’
of the Accused as a mitigating factor” and considering motive of ‘civic duty.’46 The Prosecution
submitted that the Trial Chamber effectively found that fighting on the ‘right’ side of a conflict
could serve as a mitigating factor in sentencing, and that accepting the so-called ‘justness’ of the
party to the conflict during mitigation would “almost certainly lead to a total disregard for
humanitarian law.”47 The Prosecution finally submitted that the Trial Chamber’s treatment of
‘motive of civic duty’ as a mitigating factor was also based on an assumption that the Defendants
were fighting on the ‘right’ side of the conflict.
In response, the Defense for Fofana submitted that motives of either so-called ‘just cause’ or
‘civic duty’ are part of the factual and contextual differences that the Trial Chamber must
consider in individualizing the punishment, and that the Trial Chamber didn’t consider whether
the Defendant fought on the ‘right’ side of the conflict per se, but merely whether he had a ‘good
motive.’48 The Defense for Kondewa also submitted that because an ‘evil motive’ can be
considered an aggravating factor in sentencing decisions, a ‘good motive’ can similarly be
considered a mitigating factor.49

The Appeals Chamber first noted that as a general matter, motive may be considered for
sentencing purposes, although it does not constitute a defense against criminal liability. This is
supported by the fact that the ICTR, to which the SCSL may refer for sentencing practices, often
considers the character and motive of the accused during the conflict as a mitigating factor.50
However, the Appeals Chamber then argued that the political motive of ‘just cause’ had no place
in international criminal justice, and that international humanitarian law “specifically removes a
party’s political motive and the ‘justness’ of a party’s cause from consideration.”51 While this is
certainly true, political motives only have no place in international humanitarian law when
considering the guilt or innocence of the accused. Though the ad hoc tribunals generally render
their judgments and sentencing decisions together, for reasons of procedural efficiency, 46 Prosecution Appeal Brief, para. 4.
47 Prosecution Appeal Brief, para. 9.39.
48 Fofana Response Brief, paras. 193-6.
49 Kondewa Response Brief, paras. 9.38-9.39, citing Blaskic Trial Judgment, para. 785.
50 For an overview of the sentencing practices of the ICTR, see the Human Rights Watch report on “Charging,
Convicting and Sentencing” available at: http://hrw.org/reports/2004/ij/ictr/9.htm#_Toc62641623.
51 CDF Appeals Judgment, para. 530-1.
17
sentencing decisions are discrete and independent judgments that take into account different
factors than judgments concerning the guilt or innocence of the accused.52

The Appeals Chamber further argued that any motive considered by the Trial Chamber must be
“consistent with sentencing purposes,” referring to those ‘legitimate’ rationales elaborated by the
ICTY, which include: individual and general deterrence; retribution; public reprobation and
stigmatization by the international community; and rehabilitation. The Appeals Chamber
considered the primary objectives to be retribution and deterrence.53 It argued that allowing
mitigation for the personal motives of an accused would undermine the purposes of sentencing
rather than promote them, and would implicitly legitimize the unlawful conduct.54

In
concluding, the Appeals Chamber noted that the most important consideration in sentencing is
the “revulsion of mankind, represented by the international community” and not the “tolerance
by a local community of the crime; or lack of public revulsion in relation to the crimes of such
community; or local sentiments about the persons who have been found guilty of the crimes.”55
Thus, the Appeals Chamber held that the Trial Chamber erred by considering ‘just cause’ and
‘motive of civic duty’ as relevant factors in its sentencing decision, and that the Appeals
Chamber had the ability to revise these sentences. Justice King dissented on both issues, arguing
that the Appeals Chamber interfered with the discretion afforded to the Trial Chamber in
determining the appropriate penalties.
Justice King argued that the Trial Chamber did not take into account ‘just cause’ as a mitigating
factor, but rather what the Defense had in fact pleaded - that the fighting was mobilized in order
to restore the democratically elected government of

President Kabbah, without implying any
normative evaluation about whether this end was ‘just.’56 The Trial Chamber Justices
themselves only mentioned the phrase ‘just cause’ in rejecting the defense of necessity raised by
Justice Bankole Thompson in his Dissenting Opinion. Justice King thus appeared to be arguing
(a) that the Defense never pleaded just cause as a mitigating factor, and thus the Trial Chamber
did not consider it as such; and (b) that when the Trial Chamber considered the argument that the
CDF and the Kamajors were fighting to restore the democratically elected government as a 52 For this argument, see Ralph Henham, “Procedural justice and human rights in international sentencing,” 4
International Criminal Law Review (2004): 185-210.
53 Ibid., para. 532.
54 Ibid., para. 534.
55 Ibid., para. 564.
56 King’s Dissenting Opinion, para. 107.
18
mitigating factor, this is not equivalent to considering a ‘just cause’ argument because the Trial
Chamber was considering the personal reasons for fighting held by the accused as individuals
and not necessarily the political justness of the collective cause.

In Justice King’s opinion, a
reasonable person would conclude that the Trial Chamber took into account both the gravity of
the offence and the individual circumstances of the accused, and so correctly applied Article 19
of the Statute of the SCSL.57 For this reason, he dissented with the Majority’s view that the Trial
Chamber took into consideration factors that it should not have considered in exercising its
sentencing discretion, and so the Appeals Chamber did not have the right or the power to
substitute its own discretion.

Conclusion
The essence of the disagreement between the majority of the Appeals Chamber and Justice King
relates to whether the mitigating factors considered by the Trial Chamber were personal motives
or factors, which are entirely pertinent to sentencing decisions, or collective and effectively
‘political’ motives that do not enter into determinations of penalties. One could argue that the
Appeals Chamber was so concerned with preserving the appearance of impartiality and avoiding
a perception of ‘victor’s justice’ that it entirely refused to consider the guilt of the CDF relative
to the other parties of the conflict. It is perhaps for this reason that the CDF Appeals Sentencing
Decision gave rise in some circles to the perception of a gap between ‘internationalized justice’
and ‘local justice.’ However, the fact that the Appeals Chamber strove to avoid the perception of
‘victor’s justice’ in and of itself is a laudable undertaking. Yet in doing so, the Court overlooked
the fact that the SCSL is required to take into account individual factors that bear - not on the
relative guilt or innocence of the accused - but on the extent of their punishment.

While the
majority of the Appeals Chamber appears to have reached an appropriate judgment in deciding
that the justness of a party’s reasons for fighting is not relevant to sentencing, the personal
reasons of the accused for fighting - in the descriptive sense - should bear on his or her conduct
during the conflict and thus act as an individualized mitigating factor during sentencing. In the
future, the ad hoc tribunals should be careful to clearly differentiate between collective political
motives - such as a ‘just cause’ - and these personal political motives that bear on the conduct of
the accused during the conflict.
57 Ibid., para. 115-116.
19

REFERENCES
Cases
Prosecutor v. Tihomir Blakic, Judgment, ICTY Trial Chamber, Case No. IT-95-14-T (3 March
2000).
Prosecutor v. Fofanah and Kondewa, Judgment, SCSL Appeals Chamber, Case No. SCSL-04-
14-A (May 28, 2008).
Prosecutor v. Kayishema and Ruzindana, Judgment, ICTR Trial Chamber, Case No. ICTR-95-1-
T (21 May 1999).
Prosecutor v. Kunarac et al., Judgment, ICTY Trial Chamber, Case No. IT-96-23-T & IT-96-
23/1-T (22 February 2001).
Prosecutor v. Kunarac et al., Judgment, ICTY Appeals Chamber, Case No. IT-96-23 & IT-96-
23/1-A (12 June 2002).
Prosecutor v. Mrksic and Others (Vukovar Hospital Case), Judgment, ICTY Trial Chamber II,
Case No. IT-95-13/1 (27 September 2007).
Prosecutor v. Dragan Nikolic, Sentencing Judgment, ICTY Trial Chamber II, Case No. IT-94-2-
S (18 December 2003).
Prosecutor v. Norman, Fofanah and Kondewa, Judgment, SCSL Trial Chamber I, Case No.
SCSL-04-14-J (August 2, 2007).

Articles and Books
Mirko Bagaric and John Morss, “International Sentencing Law: In Search of Justification and a
Coherent Framework,” 6 International Criminal Law Review (2006): 191-255.
Anthony Cassese, International Criminal Law (Oxford: Oxford University Press, 2003).
Mark C. Fleming, “Appellate Review in the International Criminal Tribunals,” 37 Texas
International Law Journal (2002): 111-155
Ralph Henham, “International Sentencing in the Context of Collective Violence,” 7 International
Criminal Law Review (2007): 449-468.
Ralph Henham, “Procedural justice and human rights in international sentencing,” 4
International Criminal Law Review (2004): 185-210.
Kriangsak Kittichaisaree, International Criminal Law (Oxford: Oxford University Press, 2002).
Gunal Mettraux, “Crimes Against Humanity in the Jurisprudence of the International Criminal
Tribunals for the Former Yugoslavia and for Rwanda,” 43 Harvard International Law Journal
(2002): 237-316.
Steven R. Ratner and Jason S. Abrams, Accountability for Human Rights Atrocities in
International Law: Beyond the Nuremberg Legacy, 2nd Ed. (Oxford: Oxford University Press,
2001).

About the Author
Cosette Creamer is a J.D.-Ph.D. candidate at Harvard University, Department of Government
and worked as a legal intern for the Sierra Leone Court Monitoring Program during the Summer
of 2008.

The publication of this essay has been financed by the Open Society Initiative for West
Africa (OSIWA). The Contents of this Publication are entirely the sole responsibility of
the Sierra Leone Court Monitoring Programme.

Contact Information
Sierra Leone Court Monitoring Programme
30 Wellington Street, Freetown, Sierra Leone
Tel: +232 (0)33 445 287
Email: info@slcmp.org www.slcmp.org

Photo: The late Hinga Norman, former head of Sierra Leone’s CDF.

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