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Special Court for Sierra Leone delivers judgments on the CDF Trial

2 August 2007 at 15:41 | 280 views

By Joseph A.K Sesay and Zoila Hinson(Special Court Monitoring Program).

This morning, 2 August 2007, Trial Chamber I of the Special Court for Sierra Leone (SCSL) issued its judgement in the joint trial of Moinina Fofana and Allieu Kondewa, the alleged former leaders of the Civil Defense Force.

Presiding Justice Benjamin Mutanga Itoe delivered the Chamber’s judgement that convicted Fofana on four counts comprising war crimes and Kondewa guilty of five counts including war crimes and other serious violations of international law.

The Chamber found the Prosecution did not prove Count 6, Acts of terrorism, beyond a reasonable doubt, but did not explain this finding. It also found that the Prosecution had not proven that the acts charged under Counts 1 and 3 were directed against a civilian population, a requirement for all crimes against humanity. It therefore issued not guilty findings on those charges. The charges and findings for each Accused are summarized below:

Summary of Charges and Findings

Count
Substantive Charge
Article of the Statute of the SCSL under which the charge was brought
Source of Law
Finding of Guilt

1
Murder
Art. 2(a)
Crime Against Humanity
Both Accused not guilty

2
Violence to life, health and physical or mental well-being of persons, in particular murder
Art. 3(a)
Violation of Common Article 3 or Optional Protocol II
Both Accused guilty

3
Inhumane Acts
Art. 2(i)
Crime Against Humanity
Both Accused not guilty

4
Violence to life, health and physical or mental well-being of persons, in particular cruel treatment
Art. 3(a)
Violation of Common Article 3 or Optional Protocol II
Both Accused guilty

5
Pillage
Art. 3(f)
Violation of Common Article 3 or Optional Protocol II
Both Accused guilty

6
Acts of Terrorism
Art. 3(d)
Violation of Common Article 3 or Optional Protocol II
Both Accused not guilty

7
Collective Punishments
Art. 3(b)
Violation of Common Article 3 or Optional Protocol II
Both Accused guilty

8
Conscripting or enlisting children under the age of 15 years into armed forces or groups or using them to participate actively in hostilities
Art. 2(i)
Crime Against Humanity
Fofanah found not guilty. Kondewa found guilty.

Like Trial Chamber II’s decision in the AFRC judgement, Trial Chamber I did not find the Accused guilty via joint criminal responsibility (JCE). While Trial Chamber II, however, found JCE had been mispleaded, Trial Chamber I simply stated that the Prosecution had not lead sufficient evidence to prove JCE as a mode of criminal responsibility beyond a reasonable doubt. Indeed, the Chamber rejected all Defence claims that the Prosecution had not pleaded the indictment with sufficient specificity.

Unlike the near unanimity among the justices of Trial Chamber II in the AFRC judgement, the justices of Trial Chamber I differed significantly in their findings. Most notable, Justice Bankole Thompson entered a dissenting finding on all guilty judgements, and would have acquitted both Accused on all charges. Thus the Accused were convicted only by a majority of the Trial Chamber. Justice Itoe also entered a dissenting opinion regarding Fofanah’s not guilty finding under Count 8, and would have convicted him. Justice Boutet concurred with the Chamber’s findings, but has entered a separate and concurring written judgement. After the judgement had been read, he also voice his disagreement with the prominence Justice Itoe’s summary gave to the Defence submission that President Tejan Kabbah’s role in forming and supporting the CDF relieved the Accused of criminal responsibility. While he agreed with the Chamber’s rejection of that argument as invalid, he considered it a collateral issue that should not have received such attention.

The judgement further noted that the original First Accused Sam Hinga Norman died on 22 February 2007, and the Trial Chamber would therefore not offer any findings about his guilt or innocence. It would, however, consider all the evidence on the official record, including Norman’s testimony in his own defence, cross-examination and re-examination. It would not draw any adverse conclusions from the decision by the remaining Accused not to testify.

Justice Itoe did not confirm a date for the sentencing hearing, but stated that a scheduling order containing the date would be issued shortly. Pursuant to Rule 100 of the Rules of Evidence and Procedure, all parties must present evidence at the sentencing hearing.

All parties are likely to appeal parts of the judgement. Pursuant to both Art. 20 of the Statute and Rule 106, both the Prosecution and Defence may appeal the judgment on the basis of procedural error, an error in a question of law invalidating the decision, or an error of fact that has occasioned a miscarriage of justice. By Rule 108, a party seeking to appeal a judgment must file an appeal with the registrar and serve a written notice of appeal upon the other party within fourteen days of the judgment.

The Prosecution indicted Fofanah and Kondewa in June 2003, after Norman’s March 2003 indictment. On 31 May 2004, the Appeals Chamber ruled that the recruitment of child soldiers had reified as a crime under customary international law before the beginning of the period covered by the Special Court’s mandate, a key decision allowing the recruitment of child soldiers to be charged as a crime by the Special Court. In June 2004 the Chamber joined the three trials. The Prosecution presented 75 Prosecution witnesses over 131 trial days, and the Defence teams collectively presented 44 Defence Witnesses over 112 trial days. After Norman’s death in February 2007, the Trial Chamber terminated proceedings against him, over the objections of his counsel.

Photo:The CDF accused on their first appearance in court. Left to right: Alieu Kondewa, Moinina Fofanah and the late Chief Hinga Norman.

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