The Law Reports of the Special Court for Sierra Leone Volume I

The Law Reports of the Special Court for Sierra Leone

Volume I - Book I

The Law Reports of the Special Court for Sierra Leone

Volume I

Prosecutor v. Brima, Kamara and Kanu

(The AFRC Case)

Book I

Edited by Charles Chernor Jalloh Simon M. Meisenberg

ᆕ 2012 Library of Congress Cataloging-in-Publication Data

The law reports of the Special Court for Sierra Leone / edited by Charles C. Jalloh, Simon M. Meisenberg. p. cm. Includes bibliographical references and index. ISBN 978-90-04-18911-9 (hardback : alk. paper) -- ISBN 978-90-04-22398-1 (e-book) 1. Special Court for Sierra Leone. 2. International criminal law--Sierra Leone--Cases. 3. International criminal courts--Netherlands. I. Jalloh, Charles. II. Meisenberg, Simon M. KZ1208.S53A253 2012 341.6’90268664--dc23 2012010697

Suggested (sample) citation: Judgement, Brima, Kamara and Kanu (‘AFRC’) (SCSL-2004-16-T), Trial Chamber II, 20 June 2007, para. 80 in Jalloh/Meisenberg, SCSL Law Reports - AFRC, Vol. I/2, p. 1229.

ISBN 978 90 04 18911 9 (hardback, set) ISBN 978 90 04 22561 9 (hardback, book I) ISBN 978 90 04 22562 6 (hardback, book II) E-ISBN 978 90 04 22398 1 (e-book) ISBN 978 90 04 22161 1 (hardback, complete set) E-ISBN 978 90 04 22162 8 (e-book, complete set)

All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher.

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This book is printed on acid-free paper.

About the Editors ...... xv Foreword by President Jon Kamanda ...... xvii Foreword by Registrar Binta Mansaray ...... xix Preface ...... xxiii

Introduction ...... xxxi

PART I INDICTMENTS

Indictment Against Alex Tamba Brima, 3 March 2003 ...... 3 Indictment Against Ibrahim Bazzy Kamara, 24 May 2003 ...... 15 Indictment Against Santigie Borbor Kanu, 15 September 2003...... 27 Consolidated Indictment Against Brima, Kamara, Kanu, 5 February 2004 ...... 39 Amended Consolidated Indictment Against Brima, Kamara, Kanu, 13 May 2004 ...... 55 Further Amended and Consolidated Indictment, 18 February 2005 ...... 71

PART II ᅱ

ƣơƫƾƫƺƹƻƻƽƺǁƫƹƨƿƩƣ ƹƢƫơƿƸƣƹƿƞƹƢƽƢƣƽƤƺƽƺƹᅟƫƾơƶƺƾǀƽƣᄕ 7 March 2003 ...... 89 ƞƽƽƞƹƿƺƤƽƽƣƾƿƞƹƢƽƢƣƽƤƺƽƽƞƹƾƤƣƽƞƹƢƣƿƣƹƿƫƺƹᄕᇹƞƽơƩᇴᇲᇲᇵ ...... 91 ƽƢƣƽƤƺƽƿƩƣƫƾơƶƺƾǀƽƣƺƤƿƩƣ ƹƢƫơƿƸƣƹƿƞƹƢƿƩƣƞƽƽƞƹƿƺƤƽƽƣƾƿ ƞƹƢƽƢƣƽƤƺƽƽƞƹƾƤƣƽƞƹƢƣƿƣƹƿƫƺƹᄕᇳᇶƞƽơƩᇴᇲᇲᇵ ...... 95 vi contents

Decision on the Prosecutor’s Motion for Immediate Protective Measures for Witnesses and Victims and for Non-Public Disclosure, 23 May 2003 ...... 97 ƣơƫƾƫƺƹƻƻƽƺǁƫƹƨƿƩƣ ƹƢƫơƿƸƣƹƿᄕƿƩƣƞƽƽƞƹƿƺƤƽƽƣƾƿᄕƞƹƢƽƢƣƽ for Non-Disclosure, 28 May 2003 ...... 111 ƞƽƽƞƹƿƺƤƽƽƣƾƿƞƹƢƽƢƣƽƤƺƽƽƞƹƾƤƣƽƞƹƢƣƿƣƹƿƫƺƹᄕᇴᇺƞǄᇴᇲᇲᇵ...... 115 ƽƢƣƽƤƺƽƿƩƣƫƾơƶƺƾǀƽƣƺƤƿƩƣ ƹƢƫơƿƸƣƹƿƞƹƢƿƩƣƞƽƽƞƹƿƺƤƽƽƣƾƿ ƞƹƢƽƢƣƽƤƺƽƽƞƹƾƤƣƽƞƹƢƣƿƣƹƿƫƺƹᄕᇵǀƹƣᇴᇲᇲᇵ ...... 119 ƣơƫƾƫƺƹƻƻƽƺǁƫƹƨƿƩƣ ƹƢƫơƿƸƣƹƿᄕƿƩƣƞƽƽƞƹƿƺƤƽƽƣƾƿƞƹƢƽƢƣƽ ƤƺƽƽƞƹƾƤƣƽƞƹƢƣƿƣƹƿƫƺƹƞƹƢƽƢƣƽƤƺƽƺƹᅟǀƟƶƫơƫƾơƶƺƾǀƽƣᄕ 16 September 2003 ...... 121 ƽƢƣƽƤƺƽƫƾơƶƺƾǀƽƣƺƤƿƩƣ ƹƢƫơƿƸƣƹƿᄕƿƩƣƞƽƽƞƹƿƺƤƽƽƣƾƿƞƹƢ ƽƢƣƽƤƺƽƽƞƹƾƤƣƽƞƹƢƣƿƣƹƿƫƺƹᄕᇳᇻƣƻƿƣƸƟƣƽᇴᇲᇲᇵ ...... 127 ƽƢƣƽǀƽƾǀƞƹƿƿƺǀƶƣᇹᇴᄬ ᄭᄘƻƻƶƫơƞƿƫƺƹƟǄƽƫƸƞƞǅǅǄƞƸƞƽƞ ƫƹƣƾƻƣơƿƺƤǀƽƫƾƢƫơƿƫƺƹƞƹƢƣƤƣơƿƾƫƹƿƩƣ ƹƢƫơƿƸƣƹƿᄕᇻơƿƺƟƣƽᇴᇲᇲᇵ ...... 131 Decision on the Urgent Request for Interim Measures Until ƻƻƽƺƻƽƫƞƿƣƽƺƿƣơƿƫǁƣƣƞƾǀƽƣƾƞƽƣƫƹƶƞơƣᄕᇳᇷơƿƺƟƣƽᇴᇲᇲᇵ ...... 135 Decision on the Prosecutor’s Motion for Immediate Protective Measures for Witnesses and Victims and for Non-Public Disclosure, ᇴᇵơƿƺƟƣƽᇴᇲᇲᇵ ...... 139 ƣơƫƾƫƺƹƞƹƢƽƢƣƽƺƹƣƤƣƹơƣƽƣƶƫƸƫƹƞƽǄƺƿƫƺƹƤƺƽƣƤƣơƿƾƫƹƿƩƣ Form of the Indictment, 19 November 2003 ...... 153 Decision on the Prosecution Motion for Immediate Protective Measures for Witnesses and Victims, 24 November 2003 ...... 167 ƽƢƣƽǀƽƾǀƞƹƿƿƺǀƶƣᇹᇴᄬ ᄭᄘƣƤƣƹơƣƺƿƫƺƹƩƞƶƶƣƹƨƫƹƨƿƩƣ Jurisdiction of the Special Court Raising Serious Issues Relating to ǀƽƫƾƢƫơƿƫƺƹƺƹƞƽƫƺǀƾ ƽƺǀƹƢƾƞƹƢƟưƣơƿƫƺƹƾƞƾƣƢƺƹƟǀƾƣ of Process, 22 January 2004...... 181 ƣơƫƾƫƺƹƞƹƢƽƢƣƽƺƹƽƺƾƣơǀƿƫƺƹƺƿƫƺƹƾƤƺƽƺƫƹƢƣƽᄕ 27 January, 2004 ...... 187 ƺƽƽƫƨƣƹƢǀƸᄘƣơƫƾƫƺƹƞƹƢƽƢƣƽƺƹƽƺƾƣơǀƿƫƺƹƺƿƫƺƹƾƤƺƽƺƫƹƢƣƽᄕ 28 January 2004...... 215 ƣơƫƾƫƺƹƞƹƢƽƢƣƽƺƹƣƤƣƹơƣƽƣƶƫƸƫƹƞƽǄƺƿƫƺƹƺƹƣƤƣơƿƾƫƹƿƩƣ Form of the Indictment, 1 April 2004 ...... 217 ƽƢƣƽ ƺƽ ƹƿƣƽƫƸƣƞƾǀƽƣƾƫƹƣƶƞƿƫƺƹƿƺƾƾƫƨƹƸƣƹƿƺƤƺǀƹƾƣƶƤƺƽ Accused Brima, 12 February 2004 ...... 241 contents vii

Decision on Prosecution’s Application for Leave to File an Interlocutory Appeal Against the Decision on the Prosecution Motions for Joinder, 13 February 2004 ...... 243 ƽƢƣƽƿƺƿƩƣƽƺƾƣơǀƿƫƺƹƿƺ ƫƶƣƫƾơƶƺƾǀƽƣƞƿƣƽƫƞƶƾƞƹƢƿƩƣƽƞƿƣƽƫƞƶƾ in Preparation for the Commencement of Trial, 1 April 2004 ...... 251 ƽƢƣƽƿƺƿƩƣƽƺƾƣơǀƿƫƺƹƿƺ ƫƶƣƞǀƻƻƶƣƸƣƹƿƞƶƽƣᅟƽƫƞƶƽƫƣƤƞƹƢ ƣǁƫƾƣƢƽƢƣƽƤƺƽ ƫƶƫƹƨƺƤƣƤƣƹơƣƽƣᅟƽƫƞƶƽƫƣƤƾᄕᇳƻƽƫƶᇴᇲᇲᇶ ...... 257 ƽƢƣƽƿƺƿƩƣƽƺƾƣơǀƿƫƺƹƤƺƽƣƹƣǂƣƢƺƿƫƺƹƤƺƽƽƺƿƣơƿƫǁƣƣƞƾǀƽƣƾᄕ 2 April 2004 ...... 261 Decision on Prosecution Request for Leave to Amend the Indictment, 6 May 2004 ...... 265 ƣơƫƾƫƺƹƺƹƿƩƣƽƺƾƣơǀƿƫƺƹƺƿƫƺƹƤƺƽƺƹơǀƽƽƣƹƿ ƣƞƽƫƹƨƺƤ Evidence Common to Cases SCSL-2004-15-PT and SCSL-2004-16-PT, 11 May 2004 ...... 287 ƺƹƾƣƼǀƣƹƿƫƞƶƽƢƣƽƞƹƢƺƽƽƫƨƣƹƢǀƸƿƺƿƩƣƣơƫƾƫƺƹƺƹƽƺƾƣơǀƿƫƺƹ Request for Leave to Amend the Indictment, 12 May 2004 ...... 303 Decision on Prosecution Application for Leave to File an Interlocutory ƻƻƣƞƶƨƞƫƹƾƿƣơƫƾƫƺƹƺƹƺƿƫƺƹƤƺƽƺƹơǀƽƽƣƹƿ ƣƞƽƫƹƨƺƤ ǁƫƢƣƹơƣ Common to Cases SCSL-2004-15-PT and SCSL-2004-16-PT, 1 June 2004 ...... 305 Kanu-Decision on Motions for Exclusion of Prosecution Witness Statements and Stay on Filing of Prosecution Statements, 30 July 2004 ...... 313 Brima-Decision on Motion for Exclusion of Prosecution Witness Statements and Stay of Filing of Prosecution Statements, 2 August 2004 ...... 323 Kanu-Decision on Application for Leave to File an Interlocutory Appeal Against Decision on Motions for Exclusion of Prosecution Witness Statements and Stay on Filing of Prosecution Statements, 4 February 2005 ...... 333 Decision on the Prosecution Application to Further Amend the Amended Consolidated Indictment by Withdrawing Counts 15–18, 15 February 2005 ...... 337 Corrigendum to the Decision on the Prosecution Application to Further Amend the Amended Consolidated Indictment by Withdrawing Counts 15–18, 15 February 2005 ...... 339 Decision on Kanu’s Motion for Dismissal of Counts 15–18 of the Indictment Due to an Alibi Defence and Lack of Prima Facie Case and Request Ƥƺƽ ǃƿƣƹƾƫƺƹƺƤƫƸƣƤƺƽƿƩƣ ƣƞƽƫƹƨƺƤƿƩƣƣƤƣƹơƣƺƿƫƺƹᄕ 15 February 2005 ...... 341 viii contents

Decision on Defence Applications not to Disclose Photography, Video and Audio Recordings of the Trial to the Public and/or Third Parties, 28 February 2005 ...... 343 Decision on the Defence Motion for Defects in the Form of the Indictment, 2 March 2005...... 347 Decision on Kanu Motion to Disclose Prosecution Material and/or ƿƩƣƽ ƹƤƺƽƸƞƿƫƺƹƣƽƿƞƫƹƫƹƨƿƺƣǂƞƽƢƾƿƺƽƺƾƣơǀƿƫƺƹƽƫƞƶ Witnesses and Brima’s Motion in Support, 16 March 2005 ...... 349 Decision on Confĳidential Prosecution Motion for Protective Measures for Witness TF1-272, 15 April 2005 ...... 351 Decision on the Report of the Independent Counsel Pursuant to Rules 77(C)iii and 77(D) of the Rules of Procedure and Evidence, 29 April 2005 ...... 355 Corrigendum to the Decision on the Report of the Independent Counsel Pursuant to Rules 77(C)iii and 77(D) of the Rules of Procedure and Evidence, 2 May 2005 ...... 365 ƣơƫƾƫƺƹƺƹƺƫƹƿƣƤƣƹơƣƺƿƫƺƹƺƹƫƾơƶƺƾǀƽƣƺƤƶƶƽƫƨƫƹƞƶƫƿƹƣƾƾ Statements, Interview Notes and Investigators’ Notes Pursuant to Rules 66 and/or 68, 4 May 2005 ...... 367 ƺƹƾƣƼǀƣƹƿƫƞƶƽƢƣƽƺƹƿƩƣƺƶƣƺƤƺǀƽƿƻƻƺƫƹƿƣƢƺǀƹƾƣƶᄕ 13 May 2005 ...... 377 Decision on the Confĳidential Joint Defence Application for Withdrawal by Counsel for Brima and Kamara and on the Request for Further Representation by Counsel for Kanu, 20 May 2005 ...... 379 Decision on Joint Defence Motion to Exclude All Evidence from Witness TF1-277 Pursuant to Rule 89(C) and/or Rule 95, 24 May 2005 ...... 409 Decision on the Confĳidential Joint Defence Motion to Declare Null and Void Testimony-in-Chief of Witness TF1-023, 25 May 2005 ...... 415 Decision on the Extremely Urgent Confĳidential Joint Motion for the ƣᅟƻƻƺƫƹƿƸƣƹƿƺƤƣǁƫƹƣƿǅƨƣƽƞƹƢƫƶƟƣƽƿ ƞƽƽƫƾƞƾƣƞƢƺǀƹƾƣƶ for Alex Tamba Brima and Brima Bazzy Kamara and Decision on Cross Motion by Deputy Principal Defender to Trial Chamber II for ƶƞƽƫƧƬơƞƿƫƺƹƺƤ ƿƾƽƞƶƽƢƣƽƺƤᇳᇴƞǄᇴᇲᇲᇷᄕᇻǀƹƣᇴᇲᇲᇷ ...... 427 ƣơƫƾƫƺƹƺƹƟưƣơƿƫƺƹƿƺǀƣƾƿƫƺƹƻǀƿƟǄƣƤƣƹơƣƫƹ Cross-Examination of Witness TF1-227, 15 June 2005 ...... 489 contents ix

Decision on Joint Defence Application for Leave to Appeal Against the Ruling of Trial Chamber II of 5 April 2005, 15 June 2005 ...... 499 Decision on Joint Defence Motion on Admissibility of Expert Witnesses/Expert Evidence and Filing of Notice Pursuant to Rule 94bis (B)(i) and (ii), on Re-Filed Defence Request for Disclosure, and on the Joint Defence Motion for Exclusion of Medical Information, Statistics and Abstracts Pertaining to Witnesses TF1-081 and TF1-188, 16 June 2005 ...... 505 Decision on Confĳidential Joint Defence Request to Inspect Locus in Quo Concerning Evidence of Witness TF1-024, 16 June 2005 ...... 511 Decision on Confĳidential Defence Request for Disclosure of Independent Investigator’s Report on Contempt of Court Proceedings and Request for Stay of Proceedings, 30 June 2005 ...... 515 ƣơƫƾƫƺƹƺƹƺƫƹƿƣƤƣƹơƣƺƿƫƺƹƤƺƽ ƣƹƣƽƞƶƽƢƣƽƾǀƽƾǀƞƹƿƿƺ Rule 54, 28 July 2005 ...... 519 Decision on Joint Defence Application for Leave to Appeal from Decision on Defence Motion to Exclude All Evidence from Witness TF1-277, 2 August 2005 ...... 531 Decision on Prosecution Request for Leave to Call an Additional ƫƿƹƣƾƾᄬƞƫƹƞƟ ƞǂƞƞƹƨǀƽƞᄭǀƽƾǀƞƹƿƿƺǀƶƣᇹᇵbis (E), and on Joint Defence Notice to Inform the Trial Chamber of Its Position vis-à-vis the Proposed Expert Witness (Mrs. Bangura) Pursuant to Rule 94bis, 5 August 2005 ...... 535 Decision on Prosecution Request for Leave to Call an Additional Witness Pursuant to Rule 73bis (E), 5 August 2005 ...... 567 Decision on Brima-Kamara Application for Leave to Appeal from ƣơƫƾƫƺƹƺƹƿƩƣƣᅟƻƻƺƫƹƿƸƣƹƿƺƤƣǁƫƹƣƿǅƨƣƽƞƹƢƫƶƟƣƽƿ ƞƽƽƫƾ as Lead Counsel, 5 August 2005 ...... 575 ƣơƫƾƫƺƹƺƹƿƩƣƽƺƾƣơǀƿƫƺƹᅷƾƽƞƶƻƻƶƫơƞƿƫƺƹƤƺƽƣƞǁƣƿƺƟƣ ƽƞƹƿƣƢ to Witness TF1-150 to Testify Without Being Compelled to Answer any ǀƣƾƿƫƺƹƾƫƹƽƺƾƾᅟ ǃƞƸƫƹƞƿƫƺƹƿƩƞƿƿƩƣƫƿƹƣƾƾƣơƶƫƹƣƾƿƺƹƾǂƣƽ on Grounds of Confĳidentiality Pursuant to Rule 70(B) and (D) of the Rules, 16 September 2005 ...... 585 Decision on Confĳidential Urgent Joint Defence Motion to Exclude Evidence Given by Witness TF1-157 and Evidence to be Given by Witness TFI-158 Based on Lack of Authenticity and Violation of ǀƶƣᇻᇷᄕᇳᇲơƿƺƟƣƽᇴᇲᇲᇷ ...... 599 x contents

Decision on Prosecution Application for Leave to Appeal Decision on ƽƞƶƻƻƶƫơƞƿƫƺƹƤƺƽƫƿƹƣƾƾ ᇳᅟᇳᇷᇲƿƺƣƾƿƫƤǄƫƿƩƺǀƿƣƫƹƨ ƺƸƻƣƶƶƣƢƿƺƹƾǂƣƽǀƣƾƿƫƺƹƾƺƹ ƽƺǀƹƢƾƺƤƺƹƧƬƢƣƹƿƫƞƶƫƿǄᄕ ᇳᇴơƿƺƟƣƽᇴᇲᇲᇷ ...... 607 Decision on Defence Submission Providing Evidentiary Proof of Registry’s Repeated Dissemination of Confĳidential Documents to the Press and ǀƟƶƫơƦƤƞƫƽƾƦƧƬơƣᄕᇳᇹơƿƺƟƣƽᇴᇲᇲᇷ ...... 611 Decision on the Defence Motion for the Temporary Provisional Release ƿƺƶƶƺǂƿƩƣơơǀƾƣƢƞƹƿƫƨƫƣƺƽƟƺƽƞƹǀƿƺƫƾƫƿ ƫƾƺƿƩƣƽᅷƾ ƽƞǁƣᄕ ᇳᇺơƿƺƟƣƽᇴᇲᇲᇷ ...... 627 Decision on the Prosecution Motion for Judicial Notice and Admission ƺƤ ǁƫƢƣƹơƣᄕᇴᇷơƿƺƟƣƽᇴᇲᇲᇷ ...... 633 Decision on Prosecution Motion for a Locus in Quo Visit to Karina, ƺƸƟƞƶƫƫƾƿƽƫơƿᄕƿƩƣƣƻǀƟƶƫơƺƤƫƣƽƽƞƣƺƹƣᄕᇴᇷơƿƺƟƣƽᇴᇲᇲᇷ...... 651 Decision on Joint Defence Motion for Leave to Recall Witness TF1-023, ᇴᇷơƿƺƟƣƽᇴᇲᇲᇷ ...... 659 Decision on Prosecution Tender for Admission into Evidence of Information Contained in Notice Pursuant to Rule 92bis, 18 November 2005 ...... 667 Decision on Urgent Defence Request Under Rule 54 with Respect to Filing of Motion for Acquittal, 19 January 2006 ...... 671 Decision on Defence Motions for Judgement of Acquittal Persuant to Rule 98, 31 March 2006 ...... 673 Decision on Principal Defender’s Motion for a Review of the Registrar’s Decision to Install Surveillance Cameras in the Detention Facility of the Special Court for Sierra Leone, 3 April 2006 ...... 787 ƽƢƣƽƤƺƽƫƾơƶƺƾǀƽƣƣƽƾǀƞƹƿƿƺǀƶƣᇹᇵter and the Start of the Defence Case, 26 April 2006...... 789 Decision on Joint Defence Request for Leave to Appeal from Decision on Defence Motions for Judgement of Acquittal Pursuant to Rule 98 of 31 March 2006, 4 May 2006 ...... 791 Decision on Joint Defence Application for Protective Measures for Defence Witnesses, 9 May 2006 ...... 795 Decision on Confĳidential Joint Defence Motion as to Inability to Provide Details of Certain Witnesses on 10 May 2006 and Anticipation Subpoenas Ad Testifĳicandum, 17 May 2006 ...... 799 contents xi

Decision on Prosecution Motion for Relief in Respect of Violations of Rule 67, 26 July 2006 ...... 803 Decision on Joint Defence Application for Protective Measures for ƣƤƣƹơƣƫƿƹƣƾƾƣƾƻƻƣƞƽƫƹƨƤƽƺƸᇶƣƻƿƣƸƟƣƽᇴᇲᇲᇸƹǂƞƽƢƾᄕ 13 September 2006 ...... 811 Decision on Prosecution Motion for Relief in Respect of Violations of the Trial Chamber’s Decision of 9 May 2006, 14 September 2006 ...... 817 Corrigendum: Decision on Prosecution Motion for Relief in Respect of Violations of the Trial Chamber’s Decision of 9 May 2006, ᇳᇸơƿƺƟƣƽᇴᇲᇲᇸ ...... 821 Decision on Confĳidential Prosecution Motion to Reopen the Prosecution Case to Present an Additional Prosecution Witness, 28 September 2006 ...... 823 Decision on Urgent Prosecution Motion for Relief in Respect ƺƤƫƺƶƞƿƫƺƹƾƺƤƿƩƣƽƫƞƶƩƞƸƟƣƽᅷƾƽƢƣƽƺƤᇴᇸƻƽƫƶᇴᇲᇲᇸᄕ ᇷơƿƺƟƣƽᇴᇲᇲᇸ ...... 833 ƣơƫƾƫƺƹƺƹƽƨƣƹƿƽƺƾƣơǀƿƫƺƹƺƿƫƺƹƤƺƽƞƹƽƢƣƽƣƾƿƽƫơƿƫƹƨ Contacts Between the Accused and Defence Witnesses and ƣƼǀƫƽƫƹƨƫƾơƶƺƾǀƽƣƺƤǀơƩƺƹƿƞơƿƾᄕᇳᇲơƿƺƟƣƽᇴᇲᇲᇸ ...... 839 Decision on Confĳidential Motion to Call Evidence in Rebuttal, 14 November 2006 ...... 845 Decision on Confĳidential Motion to Vary Protective Measures, 15 November 2006 ...... 877 Decision on Prosecution Application for Leave to Appeal Decision on Confĳidential Motion to Call Evidence in Rebuttal, 23 November 2006 ...... 881 Decision on Public with Confĳidential Annexes Prosecution Motion for an Investigation into Contempt of the Special Court for Sierra Leone, 18 March 2011 ...... 885 PART III ᅱ

Decision on Constitutionality and Lack of Jurisdiction, 13 March 2004 ...... 903 Decision on Challenge to Jurisdiction: Lomé Accord Amnesty, 13 March 2004 ...... 925 xii contents

ƣơƫƾƫƺƹƺƹƺƿƫƺƹƩƞƶƶƣƹƨƫƹƨǀƽƫƾƢƫơƿƫƺƹƞƹƢƞƫƾƫƹƨƟưƣơƿƫƺƹƾ Based on Abuse of Process, 25 May 2004 ...... 957 Decision on Defence Appeal Motion Pursuant to Rule 77(J) on Both ƿƩƣ ƸƻƺƾƫƿƫƺƹƺƤ ƹƿƣƽƫƸƣƞƾǀƽƣƾƞƹƢƞƹƽƢƣƽǀƽƾǀƞƹƿƿƺ Rule 77(C)(iii), 23 June 2005 ...... 961 Decision on Joint Defence Appeal Against the Decision on the Report of the Independent Counsel Pursuant to Rule 77(C)(iii) and 77(D), 17 August 2005 ...... 987 ƽƢƣƽƺƹƿƩƣƻƻƺƫƹƿƸƣƹƿƺƤAmicus Curiae, 24 November 2005 ...... 1007 ƽƢƣƽƺƹƿƩƣƻƻƺƫƹƿƸƣƹƿƺƤAmicus Curiae, 28 November 2005 ...... 1009 ƽƢƣƽƺƹƿƩƣƻƻƺƫƹƿƸƣƹƿƺƤAmicus Curiae, 02 December 2005 ...... 10011 ƺƽƽƫƨƣƹƢǀƸƿƺƿƩƣƽƢƣƽƺƹƿƩƣƻƻƺƫƹƿƸƣƹƿƺƤAmicus Curiae, 05 December 2005 ...... 1013 Decision on Brima-Kamara Defence Appeal Motion Against Trial Chamber II Majority Decision on Extremely Urgent Confĳidential Joint ƺƿƫƺƹƤƺƽƿƩƣƣᅟƻƻƺƫƹƿƸƣƹƿƺƤƣǁƫƹƣƿǅƨƣƽƞƹƢƫƶƟƣƽƿ ƞƽƽƫƾ as Lead Counsel for Alex Tamba Brima and Brima Bazzy Kamara, 8 December 2005 ...... 1015 ƣơƫƾƫƺƹƺƹƽƺƾƣơǀƿƫƺƹƻƻƣƞƶƨƞƫƹƾƿƣơƫƾƫƺƹƺƹƽƞƶƻƻƶƫơƞƿƫƺƹƤƺƽ ƫƿƹƣƾƾ ᇳᅟᇳᇷᇲƿƺƣƾƿƫƤǄƫƿƩƺǀƿƣƫƹƨƺƸƻƣƶƶƣƢƿƺƹƾǂƣƽǀƣƾƿƫƺƹƾ on Grounds of Confĳidentiality, 26 May 2006 ...... 1143

PART IV JUDGMENTS

Trial Chamber II: Judgement, 20 June 2007 ...... 1179 Corrigendum to Judgement Filed on 21 June 2007 ...... 1787 Sentencing Judgement, 19 July 2007...... 1791 Appeals Chamber: Judgment, 22 February 2008 ...... 1823 contents xiii

PART V

List of Exhibits Admitted at Trial ...... 1935 List of Documents Filed in Prosecutor v. Brima ...... 1945 List of Documents Filed in Prosecutor v. Kamara ...... 1951 List of Documents Filed in Prosecutor v. Kanu ...... 1955 List of Documents Filed in Prosecutor v. Brima, Kamara, Kanu (AFRC) ...... 1959 ƽƫƹơƫƻƞƶƦƧƬơƫƞƶƾƺƤƿƩƣƻƣơƫƞƶƺǀƽƿƤƺƽƫƣƽƽƞƣƺƹƣ ...... 2005 Select Bibliography ...... 2009 Index ...... 2031

Charles Chernor Jalloh is currently an Assistant Professor at the University of Pittsburgh School of Law, U.S.A., where he teaches and researches in the areas of ƽƫƸƫƹƞƶƞǂᄕ ƹƿƣƽƹƞƿƫƺƹƞƶƽƫƸƫƹƞƶƞǂᄕ ƹƿƣƽƹƞƿƫƺƹƞƶ ǀƸƞƹƫƨƩƿƾƞǂƞƹƢ ǀƟƶƫơ ƹƿƣƽƹƞƿƫƺƹƞƶƞǂᄙƸƣƸƟƣƽƺƤƿƩƣƹƿƞƽƫƺƞƽƫƹƞƹƞƢƞᄕƩƣƩƞƾƾƣƽǁƣƢ ƞƾ ƣƨƞƶ ƺǀƹƾƣƶ ƫƹ ƿƩƣ ƽƫƸƣƾ ƨƞƫƹƾƿ ǀƸƞƹƫƿǄ ƞƹƢ ƞƽ ƽƫƸƣƾ ƣơƿƫƺƹᄕ ƞƹƞƢƫƞƹƣƻƞƽƿƸƣƹƿƺƤǀƾƿƫơƣᄖƾƾƺơƫƞƿƣƣƨƞƶƦƧƬơƣƽƫƹƽƫƞƶƩƞƸƟƣƽ ƞƿƿƩƣ United Nations International Criminal Tribunal for Rwanda; as the Legal Advisor ƞƹƢǀƿǄƺǀƹƾƣƶƫƹƿƩƣƦƧƬơƣƺƤƿƩƣƽƫƹơƫƻƞƶƣƤƣƹƢƣƽᄕƻƣơƫƞƶƺǀƽƿƤƺƽƫƣƽƽƞ ƣƺƹƣƞƹƢƞƾƞƫƾƫƿƫƹƨơƩƺƶƞƽƫƹƿƩƣƦƧƬơƣƺƤƿƩƣǀƟƶƫơƺǀƹƾƣƶƤƺƽƣƤƣƹơƣ at the International Criminal Court. Professor Jalloh, who has published widely in leading scholarly journals and edited the consolidated legal texts of the SCSL in 2007, is the founding Editor-in-Chief of the interdisciplinary and peer-reviewed African Journal of Legal Studies, an invited member of the Advisory Board of the War Crimes Committee, International Bar Association, and an elected Co-Chair of the International Criminal Law Interest Group in the American Society of International Law. Educated in Sierra Leone until completion of secondary school, he holds a Bachelor of Arts in International Development Studies from the University of Guelph, Bachelor of Laws and Bachelor of Civil Law degrees from McGill University with a focus on International and Comparative Law and a ƞƾƿƣƽᅷƾ ƫƹ ƹƿƣƽƹƞƿƫƺƹƞƶ ǀƸƞƹ ƫƨƩƿƾ ƞǂ ƤƽƺƸ ƿƩƣ ƹƫǁƣƽƾƫƿǄ ƺƤ ǃƤƺƽƢ ᄬƣƶƶƺƨƨƺƶƶƣƨƣᄭᄙƿǃƤƺƽƢᄕǂƩƣƽƣƩƣǂƞƾƞƩƣǁƣƹƫƹƨơƩƺƶƞƽᄕƩƫƾƿƩƣƾƫƾƞƾƾƣƾƾƣƢ ƿƩƣơƺƹƿƽƫƟǀƿƫƺƹƺƤƿƩƣƿƺƿƩƣƢƣǁƣƶƺƻƸƣƹƿƺƤƫƹƿƣƽƹƞƿƫƺƹƞƶơƽƫƸƫƹƞƶƶƞǂᄙ ƣ graduated in the top of his class with a distinction. Professor Jalloh is founding President of the Africa Law Institute, a legal and social science think tank aimed at advancing good governance, human rights and the rule of law in Africa.

Simon M. Meisenberg is currently a Legal Advisor to the Extraordinary Chambers ƫƹƿƩƣƺǀƽƿƺƤƞƸƟƺƢƫƞƞƹƢƞƤƺƽƸƣƽƣƹƫƺƽƣƨƞƶƦƧƬơƣƽƞƿƿƩƣƻƣơƫƞƶƺǀƽƿ Ƥƺƽƫƣƽƽƞƣƺƹƣᄙ ƣưƺƫƹƣƢƿƩƣƫƹƞƹǀƞƽǄᇴᇲᇲᇷᄕƤƺƶƶƺǂƫƹƨƞƻƽƣǁƫƺǀƾƫƹƿƣƽǁƞƶ in 2003, and has assisted Trial Chamber I and II on the trials and judgements in Prosecutor v. Brima, Kamara and Kanu, Prosecutor v. Sesay, Kallon and Gbao and Prosecutor v. Taylor. Before joining the SCSL, he worked as a legal assistant on a ƣƤƣƹơƣƣƞƸƞƿƿƩƣ ƹƿƣƽƹƞƿƫƺƹƞƶƽƫƟǀƹƞƶƤƺƽƿƩƣƤƺƽƸƣƽǀƨƺƾƶƞǁƫƞƞƹƢƫƹƞ ƽƫƞƶƩƞƸƟƣƽƞƿƿƩƣ ƹƿƣƽƹƞƿƫƺƹƞƶƽƫƸƫƹƞƶƽƫƟǀƹƞƶƤƺƽǂƞƹƢƞᄙ ƣƩƞƾƟƣƣƹ associated with the Institute for International Law of Peace and Armed Conflict at xvi about the editors

ƿƩƣǀƩƽᅟƹƫǁƣƽƾƫƿǄƺƤƺơƩǀƸᄙ ƣƫƾƞƸƣƸƟƣƽƺƤƿƩƣ ƣƽƸƞƹƺƽƴƫƹƨ ƽƺǀƻ for International Criminal Law; the United Nations Association of Germany; the European Society of International Law, and the African Law Association. ƣƩƞƾƾƿǀƢƫƣƢƞǂƞƿƿƩƣƹƫǁƣƽƾƫƿƫƣƾƫƹƽƫƣƽᄕƺƹƹᄬ ƣƽƸƞƹǄᄭƞƹƢƞǀƾƞƹƹƣ (Switzerland) and is a qualifĳied lawyer, holding the First and Second Legal State Examination, which qualify him for all judicial posts in Germany.

by Justice Jon Kamanda President of the Special Court for Sierra Leone*

It is with great pleasure that I write this foreword to this important and monumental fĳirst volume of “The Law Reports of the Special Court for Sierra Leone.” This volume is aptly entitled a Law Report, as it reproduces the most signifĳicant decisions of the Special Court and as such will have its own importance in passing on the jurisprudential legacy of the tribunal to other similar situated courts dealing with similar crimes or similar procedural questions and to future generations of international judges, lawyers and the public. Law reports, at least in domestic courts, are usually intended to ensure that the decisions or legal cases that set a precedent or an authority are available to other judges and lawyers practicing in a justice system. This ensures a consistent application of the law and the adherence to the principle of stare decisis, especially in common law legal systems like that of Sierra Leone. It has been stated that the “power of precedent, if analyzed, is the power of the beaten track.”1 Law reporting ƻƶƞǄƾƞƤǀƹƢƞƸƣƹƿƞƶƿƞƾƴƫƹƣƹƾǀƽƫƹƨƾǀơƩƞƟƣƞƿƣƹƻƞƿƩᄙ ƺǂƣǁƣƽᄕƿƩƣƻƣơƫƞƶ Court will soon complete its mandate and will transform into the so-called Residual Special Court for Sierra Leone. Gifted minds may therefore pose the rhe- torical question about the value of such a delayed law report, as the precedents can no longer be applied by the court that fĳirst and foremost should follow these precedents. I have this to say in response. Though in theory there is no doctrine of stare decisis in international law, in practice, international courts, much like most national courts, often follow their previous decisions when confronted with the same or similar factual and legal

* Justice Kamanda holds a Bachelor of Arts degree in English and International Relations from Durham University (FBC), and a Diploma in Education from the University of Sierra Leone. ƣƿƽƞƫƹƣƢƞƾƞƞƽƽƫƾƿƣƽƞƿƿƩƣ ƹƹƾƺƤƺǀƽƿơƩƺƺƶƺƤƞǂƫƹƺƹƢƺƹᄕƞƹƢǂƞƾơƞƶƶƣƢƿƺƿƩƣƞƽƞƿ the Middle Temple in 1975. From 1976–80 he worked as State Prosecutor in the Government Law ƦƧƬơƣᄕƽƫƾƫƹƨƿƺƿƩƣƽƞƹƴƺƤƣƹƫƺƽƿƞƿƣƺǀƹƾƣƶᄙ ƹᇳᇻᇺᇲƩƣƣƹƿƣƽƣƢƻƽƫǁƞƿƣƻƽƞơƿƫơƣƫƹơƽƫƸƫƹƞƶ law. Justice Kamanda has served as an Appeals Court Justice in the Sierra Leone judiciary since ᇴᇲᇲᇶᄕƞƹƢƫƾƿƩƣƽƣƾƫƢƫƹƨǀƢƨƣƫƹơƽƫƸƫƹƞƶƞƻƻƣƞƶƾᄙ ƣƩƞƾƞƶƾƺƾƣƽǁƣƢƞƾƞ ƫƨƩƺǀƽƿǀƢƨƣƫƹ the Civil Division. In 1982 he was elected to Parliament, and he has served as Deputy Minister of ƫƹƣƽƞƶƣƾƺǀƽơƣƾƞƹƢƫƹƫƾƿƣƽƺƤ ƣƞƶƿƩᄙ ƣǂƞƾƾǂƺƽƹƫƹƞƾƞƻƣơƫƞƶƺǀƽƿƻƻƣƞƶƾǀƢƨƣƫƹ November 2007. 1ᏺƣƹưƞƸƫƹᄙƞƽƢƺǅƺᄕƩƣ ƽƺǂƿƩƺƤƿƩƣƞǂᄕƻᄙᇸᇴᄕƣǂ ƞǁƣƹᄘƞƶƣƹƫǁƣƽƾƫƿǄƽƣƾƾᄕᇳᇻᇴᇶᄙ xviii foreword by justice jon kamanda issues. Law reporting, even in a system that purports not to be bound by previous decisions as such, helps to enhance predictability. It is critical to the creation of a stable international legal order. This becomes all the more important in international criminal cases, where the fundamental liberty interests of individuals are at stake for the worst class of crimes known to law. It follows that such a question would ignore the realities of modern international criminal law and the overall importance of passing on the jurisprudential legacy. Even though we have witnessed a proliferation of international penal courts in the last two decades, the reality is that all those international criminal tribunals represent a somewhat self-contained system, where judges and practitioners look beyond the individual rules of a tribunal or court. This is necessary, as modern international criminal justice is still in its genesis. Many controversial questions are still unsettled; and as we see an increase in the number of situations in which this relatively new body of law is applied, including at the national level where authorities are supposed to act as the fĳirst line of defence against impunity, additional unresolved issues will develop. There is therefore a need to look beyond the border of a specifĳic tribunal or national system in order to establish credible and persuasive authorities. In that respect, I note with pleasure, and am indeed hon- ored, that the Special Court jurisprudence has been cited with approval by our ƾƫƾƿƣƽƿƽƫƟǀƹƞƶƾƿƩƣ ƹƿƣƽƹƞƿƫƺƹƞƶƽƫƸƫƹƞƶƽƫƟǀƹƞƶƤƺƽƿƩƣƤƺƽƸƣƽǀƨƺƾƶƞǁƫƞᄕƿƩƣ International Criminal Tribunal for Rwanda, the International Criminal Court, the Special Tribunal for Lebanon and the Extraordinary Chambers in the Courts of Cambodia. This is not to mention the various national courts, including those of Sierra Leone, that have already drawn on our jurisprudence, a trend that will likely continue into the future. These clearly demonstrate the power of the precedent of the Special Court for Sierra Leone. This again reveals the importance of this volume, as it not only promotes the case law, but places it into the context of the individual case, thereby ensuring a greater understanding of the individual decision and authority as such. In addition, the volume will serve academic researchers locating, understanding and placing the jurisprudence of the Special Court for Sierra Leone into the broader international criminal law context. It is, therefore, with the greatest pleasure that I commend Charles Jalloh and Simon Meisenberg for their monumental achievement in reporting the case law of the Court. As lawyers who have both served in the tribunal, and at their own initiative, they are through this series bringing together the most comprehensive collection of the tribunal’s jurisprudence to date. In this way, they are leaving an important mark by helping to ensure that the legacy of the Court is preserved, not lost. I therefore trust that this excellent and important volume, as well as the others that are scheduled to follow, will help disseminate and promote the rich jurisprudential legacy of the Special Court for Sierra Leone.

by Binta Mansaray Registrar of the Special Court for Sierra Leone*

It is by now well known, at least among international criminal lawyers, that the Special Court for Sierra Leone (SCSL or the Court) was established following signature of an unprecedented agreement between the United Nations and the Government of Sierra Leone in Freetown, Sierra Leone’s capital, on 16 January 2002. The bilateral treaty, which was authorized by United Nations Security Council Resolution 1315 (2000) following a prior request by President Alhaji Ahmad Tejan Kabbah of Sierra Leone, granted the SCSL jurisdiction over those “bearing greatest responsibility” for serious violations of international and Sierra Leonean law within Sierra Leone after 30 November 1996. It entered into force on 12 April 2002, after each of the parties completed the respective formalities required for its implementation. Nine years later, ten cases have been tried before the Court in three joint and one separate trial. The trials of senior members of the Armed Forces Revolutionary Council (AFRC), the Civil Defence Forces and the Revolutionary United Front began in Freetown in 2004-2005 and concluded with the issuance of the last ƻƻƣƞƶƾƩƞƸƟƣƽǀƢƨƸƣƹƿƫƹƿƩƣƶƞƿƿƣƽơƞƾƣƫƹơƿƺƟƣƽᇴᇲᇲᇻᄙƩƣƾƺƶƣƽƣƸƞƫƹƫƹƨ single accused case, that of former Liberian President Charles Ghankay Taylor, ƺƻƣƹƣƢƫƹƩƣ ƞƨǀƣᄕƣƿƩƣƽƶƞƹƢƾǂƫƿƩƿƩƣƣǁƫƢƣƹƿƫƞƽǄƻƩƞƾƣƫƹƞƹǀƞƽǄᇴᇲᇲᇺᄙƾ of writing, the case has closed for deliberations with the Prosecution’s closing arguments having taken place on 8-9 February 2011 and the Defence on 9-10 March 2011. Final rebuttal submissions were made the next day. Trial judgment was rendered on 26 April 2012, and because Taylor was convicted, sentencing judgment followed on 30 May 2012. Appeals are expected to follow likely to be fĳinalized no later than the end of 2012. Though the SCSL has already signifĳicantly wound down its activities in Freetown, with the rendering of fĳinal appeal judgement in the

* Appointed Registrar of the Special Court for Sierra Leone in February 2010. Between July 2007 and June 2009, Ms. Mansaray served as Deputy Registrar and then Acting Registrar. She fĳirst joined ƿƩƣƫƹᇴᇲᇲᇵƞƾǀƿƽƣƞơƩƺƺƽƢƫƹƞƿƺƽᄕǂƩƣƽƣƾƩƣƢƣƾƫƨƹƣƢƿƩƣƺǀƽƿᅷƾƞơơƶƞƫƸƣƢƨƽƞƾƾƽƺƺƿƾ program to keep the people of Sierra Leone, and later Liberia, informed about the tribunal’s work. A graduate of the University of Sierra Leone, she holds a Master’s degree from Fordham University in ƣǂƺƽƴᄕᄙᄙᄙ xx foreword by binta mansaray

Taylor Case, the Court will become the fĳirst of the modernad hoc international criminal tribunals to complete its work. As a Sierra Leonean, I am proud that this tribunal, which was initiated by the government of my native country and generously supported by the United Nations and the international community, will leave behind a solid example and legacy of the proper application of credible justice and the rule of law – for my fellow citizens, the people of Africa and others from around the world. It is therefore in the interest of the SCSL that its jurisprudential legacy is being preserved and reported. The importance of this fĳirst volume reporting the case law of the trial of Prosecutor v. Brima, Kamara and Kanu, the so-called Armed Forces Revolutionary Council Case, cannot be underestimated in terms of the heritage the Court will leave for international criminal law. This invaluable jurisprudential collection rather nicely parallels the hybridity and dual national-international ownership of the SCSL itself. The project was initiated by a Sierra Leonean, Assistant Professor Charles C. Jalloh of the University of Pittsburgh School of Law, U.S.A., who in a previous role served with great dis- ƿƫƹơƿƫƺƹƞƾƞƣƨƞƶƢǁƫƾƺƽƞƹƢǀƿǄƺǀƹƾƣƶƫƹƿƩƣƦƧƬơƣƺƤƿƩƣƽƫƹơƫƻƞƶƣƤƣƹƢƣƽ within the Registry of the Court. After securing this renowned legal publisher, he ƿƩƣƹƫƹǁƫƿƣƢƽᄙƫƸƺƹƣƫƾƣƹƟƣƽƨᄕƞ ƣƽƸƞƹƹƞƿƫƺƹƞƶᄬƞƹƢƞƣƹƫƺƽƣƨƞƶƦƧƬơƣƽ in the Trial Chamber who worked on three of the four cases before the SCSL), to co-assemble and co-edit this comprehensive compilation of the SCSL’s jurisprudential record in the seminal fĳirst completed trial: the AFRC Case. As part of a larger project that will eventually capture for posterity the entire judicial output of the SCSL, this book represents a much-welcomed initiative on the part of its editors, who deserve a special medal for bringing their extensive experience and expertise on the Court to bear by systematically capturing and organizing the publicly available decisions and opinions issued by the SCSL. A mere glance at the contents shows that all the relevant interlocutory decisions and judgments – spanning the pre-trial, trial, sentencing and appeals phases of the case are included, and also that the editors paid special attention to ensure the integrity of the signed offfĳicial versions issued by the judges. For the foregoing, among other reasons, I have no doubt that this volume will meet the current need for a single, comprehensive and reliable source of all the jurisprudence in the AFRC Trial. Indeed, given the fĳine editorial expertise of those involved, I equally have no doubt that this book will quickly become a leading reference source for anyone interested in owning a complete collection of the SCSL’s jurisprudential legacy. In the absence of any offfĳicial law reports issued by the Court, this book, which will now fĳill a big gap, makes a signifĳicant contribution to assessments of the future case law of the SCSL. I therefore highly recommend it to all practitioners and judges in other international as well as national criminal courts charged with addressing international crimes. foreword by binta mansaray xxi

Furthermore, I believe that students, commentators, researchers and anyone else with an interest in international criminal law and justice, whether at the national or international levels, will fĳind this an indispensable and comprehensive reference work for the complete set of interlocutory judicial decisions and trial and appeals judgments in the AFRC Case. It is a volume that should occupy a special and prominent place on the shelf of every law library around the world.

PREFACE

ƹᇳᇸƞƹǀƞƽǄᇴᇲᇲᇴᄕƿƩƣƹƫƿƣƢƞƿƫƺƹƾᄬᄭƞƹƢ ƺǁƣƽƹƸƣƹƿƺƤƫƣƽƽƞƣƺƹƣ (Sierra Leone) signed an historic agreement establishing the Special Court for Sierra Leone. This marked the culmination of a process begun by President Ahmad Tejan Kabbah of Sierra Leone in a 12 June 2000 letter to the President of the UN Security Council. President Kabbah’s correspondence requested the assistance of the international community to establish an independent “special court” that, through prosecution of those leaders that had planned and directed a fĳierce decade-long conflict, would help bring justice and ensure a lasting peace in the small West African nation of 5 million people. Annexed to his letter was a basic blueprint for the tribunal. In Resolution 1315, adopted on 14 August 2000, the Security Council requested then UN Secretary-General Kofĳi Annan to negotiate an agreement with Sierra Leone to establish a “special court” with jurisdiction to prosecute those bearing “greatest responsibility” for serious violations of international humanitarian law as well as Sierra Leonean law focusing, in particular, on those leaders that had threatened the establishment and implementation of the peace process in Sierra Leone which, by mid-1997, had started engaging the serious interest of the international community. After several failed attempts to make peace, including in Togo in July 1999, President Kabbah eventually succeeded in ending the war and heralding the arrival of peace to a war-weary population in Sierra Leone on 18 January 2002. Drawing on the UN’s experience with the creation of the International Criminal ƽƫƟǀƹƞƶƾƤƺƽƿƩƣƤƺƽƸƣƽǀƨƺƾƶƞǁƫƞᄬ ᄭƞƹƢǂƞƹƢƞᄬ ᄭƫƹᇳᇻᇻᇵƞƹƢᇳᇻᇻᇶ respectively, the Statute of the SCSL, which entered into force on 12 April 2002, also contained many novel features that were intended, among other things, to reflect the specifĳicities of the Sierra Leonean conflict while creating a more efffĳi- cient and inexpensive institution. Thus, the Court was the fĳirst to be limited in its mandate to only prosecute those bearing greatest responsibility for various international and national crimes; the fĳirst to sitin situ; the fĳirst to provide scope for the afffected State (Sierra Leone) to appoint some of its principal offfĳicials, such as, some judges and the deputy prosecutor; the fĳirst to be funded entirely through donations by UN member states; the fĳirst to be overseen by an independent management committee comprised of non-party states; as well as the fĳirst to operate alongside a truth and reconciliation commission in a post-conflict situation anywhere in the world. xxiv preface

ƹơƣƫƿƟƣơƞƸƣƺƻƣƽƞƿƫƺƹƞƶƫƹᇴᇲᇲᇵᄕƿƩƣƽƺƾƣơǀƿƺƽƫƾƾǀƣƢᇳᇵƫƹƢƫơƿƸƣƹƿƾ of various military and other leaders drawn from the three main factions to the Sierra Leone armed conflict: the mutinying elements of the national army known as the Armed Forces Revolutionary Council (AFRC), the Civil Defence Forces (CDF) militia and the Revolutionary United Front (RUF) rebels. Most of the indictees were arrested. Three accused from each of the three groups were prosecuted in three joint trials. In the fĳirst of those cases to conclude, which involved the three AFRC commanders, namely Alex Tamba Brima (aka “Gullit”), Brima Bazzy Kamara, and Santigie Borbor Kanu (aka “Five-Five”), the judges of Trial Chamber II found all three men guilty of 11 out of 15 counts of war crimes, crimes against humanity and other serious violations of international humanitarian law on 20 June 2007. The three were sentenced on 19 July 2007 to prison terms of 50 years each for Brima and Kanu and 45 years for Kamara, sentences which were upheld by the Appeals Chamber on 22 February 2008. During the AFRC case, the judges were often confronted with a range of novel legal issues in interlocutory proceedings. In this regard, they had to rule on some signifĳicant topics that may prove of relevant interpretive guidance for other post-conflict situations from around the world. These ranged from questions regarding the constitutionality and jurisdiction of the tribunal’s creation jointly by agreement between the UN and Sierra Leone, to the question whether domestic amnesties under a peace agreement is sufffĳicient to bar the prosecutions of the defendants for serious international crimes before a nationalized international penal court. In addition to the AFRC case, the SCSL has successfully completed the joint trials of six military commanders in the RUF and CDF cases, fĳive of whom were convicted and sentenced to long prison terms in 2007-2008. The fĳirst accused in ƿƩƣ ƿƽƫƞƶᄬƞƸ ƫƹƨƞƺƽƸƞƹᄭᄕǂƩƺǂƞƾƿƩƣƾƫǃƿƩƾǀƾƻƣơƿƫƹơǀƾƿƺƢǄᄕƢƫƣƢ ƟƣƿǂƣƣƹƿƩƣơƶƺƾǀƽƣƺƤƩƫƾơƞƾƣƺƹᇳᇺơƿƺƟƣƽᇴᇲᇲᇸƞƹƢƿƩƣƢƣƶƫǁƣƽǄƺƤƧƬƹƞƶưǀƢƨ- ment on 2 August 2007. The Chamber thereafter terminated his case. The eight AFRC, CDF and RUF convicts are currently serving their jail terms at a maximum security prison near the Rwandan capital, Kigali, under an enforcement of sentence agreement between the Government of Rwanda and the SCSL. Today, the trial of former Liberian President Charles Ghankay Taylor is the only matter remaining before the SCSL. That historic case, which is before the same ƩƞƸƟƣƽƞƾƤƺƽƿƩƣ ơƞƾƣᄕǂƞƾơƺƹƿƽƺǁƣƽƾƫƞƶƶǄƿƽƞƹƾƤƣƽƽƣƢƿƺƩƣ ƞƨǀƣƤƺƽ security reasons in April 2006. It concluded in March 2011, with judgement rendered on 26 April 2012, and sentencing of the defendant to 50 years, on 30 May 2012. Appeals will likely last another six to eight months. Consistent with the UN Security Council mandated Completion Strategy, the SCSL has already signifĳicantly drawn down its operations at the seat of the Court in New England, Freetown. It has retained only the Appeals Chamber judges and essential registry and other stafff required for fĳinal disposition of the Taylor case, in preface xxv addition to a few other personnel engaged in work on an as yet undefĳined residual mechanism. Although it was the last to be created of the three ad hoc interna- ƿƫƺƹƞƶơƽƫƸƫƹƞƶơƺǀƽƿƾᅬƤƺƽƿƩƣƤƺƽƸƣƽǀƨƺƾƶƞǁƫƞᄕǂƞƹƢƞƞƹƢƫƣƽƽƞƣƺƹƣᅬƿƩƣ SCSL seems set to become the fĳirst of the modern UN supported ad hoc international criminal tribunals to conclude its work. This is at least partially because of its narrow and focused mandate. Given the above highlights of its signifĳicance, and in light of its pending closure, we are pleased to present the fĳirst comprehensive collection of the jurisprudential record of the Court. In compiling this fĳirst volume on the AFRC case, which will be the fĳirst in a law report series that will capture all of the tribunal’s jurisprudence, we seek to achieve three principal objectives. Firstly, to present in a simple chronological fashion all the publicly available interlocutory decisions issued by the judges during the trial. We believe it essential to capture in hard copy, and for future international lawyers and historians, the entire judicially-generated output of the SCSL to facilitate the work of future researchers from around the world. The signifĳicance of preserving the complete record of both the trial process and its fĳinal outcome, the trial and appeals judgments, cannot be underestimated given that the shoestring court never established its own law reporting system probably because of its sparse fĳinancial resources. Secondly, to present accurately the entire judicial output in the AFRC case. Towards that end, we have made every efffort to ensure that the decisions reprinted here are precise and match the contents of the signed offfĳicial versions issued by the Court at the relevant time. We wanted to ensure that researchers could rely on the decisions in this volume though, it must be noted, these herein are not deemed authoritative offfĳicial versions as only those signed by the judges may be considered to be so. Though we agonized over this, where the decisions contain obvious typos and minor editorial mistakes, we have taken our editorial discretion to correct them without modifying the substance of the decisions. We have exercised caution and restraint in order not to afffect the integrity of the judicial decisions. We have also sought to harmonize the format of the original decisions issued by the SCSL as there were minor inconsistencies regarding formatting, which at times varied from opinion to opinion. We carefully considered, but ultimately decided against, including the offfĳicial page numbering of the decisions as issued by the Court. In the fĳinal analysis, we felt that since this compilation will constitute a complete set of all the publicly available decisions regarding this particular trial, readers may freely cite to the decisions in this work with less risk of confusion arising from the provision of two sets of numbers on each page: one offfĳicial one matching the opinions issued by the judges, another unofffĳicial one given by these editors. Thirdly, as editors who have had the good fortune to work at the SCSL during its heyday, we drew on our experience to offfer introductory remarks that contex- tualize the key stages of the AFRC trial. Without necessarily commenting on the xxvi preface wisdom, or lack thereof, of the substantive decisions/opinions given, our goal was to provide a general sense of the trials to current and future readers who did not, and will not have a chance, to work with the Court as it settles into the twilight ƻƩƞƾƣƺƤƫƿƾƣǃƫƾƿƣƹơƣᄙǀƽơƺƸƟƫƹƣƢƫƹƾƫƨƩƿƾƞƽƣƫƹƿƣƨƽƞƿƣƢƫƹƿƺƞƹƺƿƣƫƹƿƽƺƢǀơ- ing the case that is aimed at newcomers to this trial, instead of specialists, serving to only provide the main highlights, as opposed to a detailed exposition, of this voluminous multi-accused case which lasted years. In any event, the very point of this volume is to help ensure that researchers can access the primary decisions in hard copy with the view to encouraging critical reflections of this jurisprudential legacy. Various judicial decisions, which granted or varied protective measures for victims and witnesses at the request of each of the parties, generally prevented public disclosure of the identity or whereabouts of certain persons pursuant to Rule 75 of the Rules of Procedure and Evidence. For obvious reasons, we could not include those decisions in this jurisprudential compilation. In addition, since we felt that they are of limited, if any, research value, we have excluded a small number of interlocutory decisions that relate purely to mundane matters that while perhaps important during the trial are, at this stage, completely inconsequential. These include routine scheduling orders (which are, in any event, averred to in the substantive decisions to which they relate and that are included in this volume); decisions varying the judicial calendar; decisions fĳixing the date of a status conference; or decisions regarding extension of deadlines by a few days to enable a party’s fĳiling or those simply increasing page limits fĳixed in the relevant practice directives on the fĳiling of documents. This compilation is divided into fĳive parts. Part I contains the various indictments against the suspects both before and after the joinder of their separate cases into a single trial. Part II contains numerous interlocutory decisions of the AFRC Trial Chamber. These decisions, which cover a range of issues that arose throughout the trial, include the majority or unanimous decisions rendered by the SCSL throughout the case. We have captured all the opinions issued, starting with those issued by the judges of Trial Chamber I, which was initially seised of the AFRC case before Trial Chamber II was constituted. Where applicable, we have included separate or dissenting opinions, as well as any annexes thereto. Part III contains a relatively smaller set of interlocutory decisions regarding preliminary motions challenging the Court’s jurisdiction, those regarding defects in the form of the indictments and those pertaining to abuse of process as decided, pursuant to Rule 72 of the Rules of Procedure and Evidence, by the Appeals Chamber. Under this rule, the Trial Chamber had to immediately refer certain preliminary jurisdictional challenges or matters that could signifĳicantly afffect the fair and expeditious conduct of the proceedings to the appeals judges for determination. This was meant to enable the early disposition of interlocutory issues so that the actual trials are not unnecessarily bogged down; but, it also efffectively preface xxvii removed the limited and exceptional right to appeal some interlocutory matters to a second set of judges. In Part IV, readers will fĳind the fĳinal AFRC judgments. The fĳirst, the Trial Judgment, in which the judges entered convictions of all three accused, is followed by the Appeals Chamber judgment which mostly upheld those fĳindings – as discussed in more detail in the Introduction to this volume. We also included the sentencing judgment as well as the corrigendum to the trial judgment. Together, the items in this section, which in many ways capture the most important judicial output in any trial, are the ultimate record distilling factual/legal fĳindings in the case following the appearance of numerous Prosecution and Defence witnesses, as well as in this case each of the three accused persons. Researchers will fĳind, in Part V, various miscellaneous items, including the master list of all fĳilings received by the Court Management Section during this case, list of all fĳilings relating to the individual accused, before the joinder of the cases, as well as afterwards, a list of exhibits admitted in the course of the trial, a list of the principal offfĳicials of the SCSL and an initial working bibliography to assist researchers interested in locating the main publications relating to the tribunal. We also hope that the highly detailed Index at the end of the volume will readily point readers to the relevant decisions in the main body of the compilation. This comprehensive compilation of jurisprudence is intended to stimulate interest in, and thinking about, the history and legacy of the Court and the Sierra Leone war which gained notoriety around the world for its brutal nature. It is our way of inviting present colleagues and future researchers in international law and beyond to explore the contributions, as well as limitations, of that tribunal whose ultimate contributions to Sierra Leoneans and the international community must be assessed keeping in mind its specifĳic legal nature and historical context. In this vein, we hope that it will become the primary reference source for ƿƩƣ ưǀƽƫƾƻƽǀƢƣƹơƣƤƺƽưǀƢƨƣƾƞƹƢƻƽƞơƿƫƿƫƺƹƣƽƾƫƹƫƿƾƾƫƾƿƣƽ ᄕ ᄕƿƩƣ International Criminal Court and other international and national courts, all of whom may in the course of their work have recourse to the full text of its decisions for comparative law purposes or as sources of hopefully persuasive judicial decisions and approaches. We also hope that a broad range of academics – whether in the fĳields of international law, international relations, political science, history or the evolving fĳield of transitional justice – will fĳind this case law collection useful. This is not to mention students, policymakers and advocates within governmental and nongovern- mental organizations, and indeed, anyone concerned about the process of rendering credible justice in the aftermath of conflict and mass atrocity. As editors, we are indebted to various people for assisting us through the process of compiling this volume. First, we are grateful to Justice Jon Kamanda, the current President of the Court, as well as Ms. Binta Mansaray, the Registrar of the SCSL, for accepting to contribute Forewords to kick offf this jurisprudence series. xxviii preface

We also appreciate the Registrar’s permission to reprint the decisions and judgments contained in this volume. Second, we would like to acknowledge Lindy Melman of Martinus Nijhofff Brill for immediately supporting this project without any reservations when the lead ƣƢƫƿƺƽƞƻƻƽƺƞơƩƣƢƩƣƽƿƺƣǃƻƶƺƽƣƫƿƾƤƣƞƾƫƟƫƶƫƿǄᄙ ƣƽƻƞƿƫƣƹơƣƞƹƢǀƹƢƣƽƾƿƞƹƢƫƹƨ as we tried to meet our self-imposed but ambitious deadlines for the submission of the manuscript was highly appreciated. We look forward to working with her, and her entire production team at Brill, to swiftly complete the remainder of this SCSL law reports collection. Third, we wish to thank various colleagues at the University of Pittsburgh School of Law. Brittany Conkle (J.D., Pitt Law Class of 2010), who in her capacity as a Research Assistant to Professor Jalloh, did a fĳine job compiling the various decisions into the fĳirst version of the draft manuscript. The hard work and dedication of Barbara Salopek, Phyllis Gentille, Karen Knochel and Darleen Mocello of the Pitt Law Document Technology Center is also gratefully acknowledged. Barb, who patiently and tirelessly put in many long hours formatting the draft manuscript and making suggestions on how to improve its presentation, is excellent to work with because of her good cheer. Abby Wilson (J.D., Pitt Law Class of 2011), also an able Research Assistant, kindly cross-checked the manuscript for errors. We thank her. Fourth, we appreciate the kind support of Dean Mary Crossley and Associate Dean Lu-in Wang of Pitt Law School for offfering generous fĳinancial support in the form of the two additional research assistants mentioned above, each of whom, respectively, assisted in the beginning and last stage of this project. We also thank our supportive colleagues at the SCSL, in particular, Rachel Irura, Alhassan Fornah and Francess Ngobeh Smart from the Court Management Section of the Registry for help and assistance on fĳinding all the relevant decisions and documents. Last but not least, we thank our families, in particular our wives and young children, to whom this book is dedicated. They graciously accepted the long hours that we took away from our family responsibilities to edit this work, even though they would have rather had us at home. As of writing, the offfĳicial versions of the various decisions and fĳinal judgments compiled here are available electronically from the SCSL website at http:// www.sc-sl.org. We have included soft copies of all the decisions and judgments ƫƹƿƩƫƾǁƺƶǀƸƣƫƹƞᅟƞơơƺƸƻƞƹƫƸƣƹƿƿƺƿƩƫƾƟƺƺƴᄙ ƹƞƢƢƫƿƫƺƹᄕƿƩƺǀƨƩƹƺƿ reproduced in this volume because of their sheer bulk, the publicly available original transcripts of witness testimony and exhibits in the AFRC casefĳile have been added to the CD. These added items should enable researchers interested in consulting the original documents to search and review the electronic fĳiles. As of writing, it is anticipated that the original physical copies of the Court’s archives preface xxix will, at least temporarily, be housed within the National Archives of The Netherlands http://www.en.nationaalarchief.nl while copies of all public decisions, transcripts and exhibits will also be kept at the planned Peace Museum located in the Security Building on the current New England premises of the SCSL in Freetown.

The Editors June 2012

The judgement in the case Prosecutor v. Alex Tamba Brima, Ibrahim Bazzy Kamara and Santigie Borbor Kanu (AFRC1 Judgement) was the fĳirst to be rendered by the Special Court for Sierra Leone (SCSL or the Court) in June 2007. The appeals judgement, rendered in February 2008, fĳinalized the fĳirst case of the SCSL, six years after the Court’s creation and about fĳive years after the three defendants’ transfer to its custody. As the SCSL initially was tasked to complete its mandate within a rather unrealistic time frame of three years, the AFRC Judgements were a major organisational milestone and historical achievement for the tribunal. ƺǂƣǁƣƽᄕƫƣƽƽƞƣƺƹƣƞƹƾƞƾǂƣƶƶƞƾƫƹƿƣƽƹƞƿƫƺƹƞƶƶƞǂǄƣƽƾƞƹƢƩƫƾƿƺƽƫƞƹƾǂƫƶƶ not merely judge the AFRC case on its efffĳiciency and efffectiveness, but rather will take into account core traits of the desire for justice: truth and fairness. This volume collecting the most important procedural interlocutory decisions and the fĳinal judgements in the case against the three defendants will hopefully provide the basis for a critical assessment of a trial whose legal complexity and factual magnitude puts it in the class of a few in modern international criminal law. A perusal of the judgement will expose odious and brutal conduct, which only humankind appears to be capable of. “Man’s inhumanity to man”2 in Sierra Leone is reflected in the following passage of the trial and appeals judgements: “Brima, Kamara and Kanu have been found responsible for some of the most heinous, brutal and atrocious crimes ever recorded in human history. Innocent civilians – babies, children, men and women of all ages – were murdered by being shot, hacked to death, burned alive, beaten to death. Women and young girls were gang raped to death. Some had their genitals mutilated by the insertion of foreign objects. Sons were forced to rape mothers, brothers were forced to rape sisters. Pregnant women were killed by having their stomachs slit open and the foetus removed merely to settle a bet amongst the troops as to the gender of the foetus. Men were disemboweled and their intestines stretched across a road to form a bar- ƽƫƣƽᄙ ǀƸƞƹƩƣƞƢƾǂƣƽƣƻƶƞơƣƢƺƹƾƿƫơƴƾƺƹƣƫƿƩƣƽƾƫƢƣƺƤƿƩƣƽƺƞƢƿƺƸƞƽƴƾǀơƩ

1 The accused were associated with a military junta known as the Armed Forces Revolutionary Council. Though commonly referred to as the AFRC case, the organization was not tried as the SCSL, like other modern international criminal courts, only has jurisdiction over natural as opposed to legal persons. For more on the AFRC, see below. 2 Robert Burns, Man was made to mourn: A Dirge (1784); see also Prosecutor v. Kuprsekic et al., IT-95-16-T, Judgement (TC), 14 January 2000, para. 755. xxxii introduction

Ɵƞƽƽƫƣƽƾᄙ ƞơƴƫƹƨƺƦƤƿƩƣƶƫƸƟƾƺƤƫƹƹƺơƣƹƿơƫǁƫƶƫƞƹƾǂƞƾơƺƸƸƺƹƻƶƞơƣᄙƩƣǁƫơƿƫƸƾ were babies, young children and men and women of all ages. Some had one arm amputated, others lost both arms. For those victims who survived an amputation, life was instantly and forever changed into one of dependence. Most were turned into beggars unable to earn any other living and even today cannot perform even the simplest of tasks without the help of others. Children were forcibly taken away from their families, often drugged and used as child soldiers who were trained to kill and commit other brutal crimes against the civilian population. Those child soldiers who survived the war were robbed of a childhood and most of them lost the chance of an education.” The Appeals Chamber referred to this passage from the sentencing judgement to explain its decision not to reduce the sentence against the three defendants that ƽƞƹƨƣƢƤƽƺƸᇶᇷƿƺᇷᇲǄƣƞƽƾᄙ ƺǂƣǁƣƽᄕƞơƶƺƾƣƽƶƺƺƴƞƿƿƩƣƧƬƹƞƶƿƽƫƞƶƞƹƢƾƣƹƿƣƹơƫƹƨ judgements reveals that the three defendants had not been found responsible for all of the specifĳic acts described in the above passage. This example is not referred to as a criticism of the judgement of the Appeals Chamber, or to suggest that the defendants would have deserved a lesser sentence. Rather, it serves to demonstrate the importance of the procedural and contextual details of the evidentiary record and that of the judicial decisions, precisely in order to enable a comprehensive and detailed academic assessment of the AFRC case. That is what this volume proclaims, apart from leaving behind the legacy of the history and the facts of the case. The AFRC case starts with the indictments against the defendants and their confĳirmation by the designated Judge of Trial Chamber I. All three defendants had been in Sierra Leonean government custody in March 2003 on charges of treason, when the then Prosecutor David Crane applied on 7 March 2003 to Justice Bankole Thompson, the Designated Judge and only Sierra Leonean on the bench, to con- fĳirm the indictment against Alex Tamba Brima. Justice Thompson confĳirmed the indictment the very same day – along with six other indictments – and signed an arrest warrant that was executed by the Sierra Leone authorities, which transferred Brima to the detention facilities of the SCSL on 10 March 2003. Notably, the indictment fĳiled by the Prosecutor was not accompanied by witness statements and supporting evidence, but simply by an investigator’s statement.3 Alex Brima fĳirst appeared before the Cameroonian Judge of Trial Chamber I, Judge Benjamin Mutanga Itoe, four days later; he pleaded “not guilty” to the charges of crimes against humanity and war crimes. The catalog of allegations included acts of terror, collective punishments, murder, rape, sexual slavery, enslavement, recruitment of child soldiers, pillage and the burning of property, hostage taking and attacks against United Nations personnel. This initial appearance was conducted 45 minutes helicopter flight from Freetown, the Sierra

3 Prosecutor v. Brima, SCSL-03-06-I-001, Indictment (Prosecutor Memorandum To Accompany Indictment), fĳiled 7 March 2003 (available http://www.sc-sl.org/scsl/Public/SCSL-03-06-Brima/ SCSL-03-06-I-001/SCSL-03-06-I-001-A.pdf). introduction xxxiii

Leonean capital, in the remote town of Bonthe on Sherbro Island in the Bonthe District, southern Sierra Leone. It took place only 14 months after the decade long war in Sierra Leone had been offfĳicially declared over. This factor, the proximity of the transitional justice effforts by the SCSL to the events, should be taken into account when looking at the decisions of the Court, as it signifĳies that the SCSL operated in a country that had only just emerged from the physical and psychological wounds of one of the most complex civil wars in Africa after the fall of the Iron Curtain. Ibrahim Kamara followed Brima in the SCSL detention about two months later. This time the indictment was confĳirmed by the Canadian Judge of Trial Chamber I, Judge Pierre Boutet, and his initial appearance took place fĳive days later on 4 June 2003. The issuance of the indictment of the third AFRC defendant, Santigie Borbor Kanu, took a bit more time as he was only transferred to the SCSL in September 2003. Kamara and Kanu both pleaded not guilty to the charges that were nearly identically phrased as those against Brima. Even though the case against the AFRC defendants was the fĳirst to formally close, it appeared initially that their trial could be considerably delayed. The Prosecution requested to join the case of the three individuals with those of three other defendants who were members of the Revolutionary United Front (RUF), Issa Sesay, Morris Kallon and Augustine Gbao. The Prosecution alleged that the charged crimes against all of these defendants formed part of one common ƾơƩƣƸƣᄕƾƿƽƞƿƣƨǄƺƽƻƶƞƹᄙ ƺǂƣǁƣƽᄕƽƫƞƶƩƞƸƟƣƽ ƢƫƢƹƺƿƞƨƽƣƣƞƹƢƺƽƢƣƽƣƢƿƩƞƿ the defendants belonging to the AFRC mutinying group and those of the RUF rebel group should be tried separately.4 An attempt to appeal that interlocutory decision was denied by the Trial Chamber pursuant to Rule 73(B) of the Rules of Procedure and Evidence. The judges found that the Prosecution had failed to discharge its burden to show ‘exceptional circumstances’ that would warrant the grant of leave to appeal.5 This decision highlights only one of the difffĳiculties of the leave to appeals procedure within the procedural framework of the SCSL that both the Prosecution ƞƹƢƿƩƣƣƤƣƹơƣƩƞƢƿƺƨƽƞƻƻƶƣǂƫƿƩᄙ ƺǂƣǁƣƽᄕƿƩƣƽƺƾƣơǀƿƫƺƹƢƫƢƹƺƿƨƫǁƣǀƻᄙ Rather, it applied for an unseen measure in international criminal law until that time: a concurrent presentation of the evidence common to both the RUF Case and the AFRC Case pursuant to Rule 48(C).6 This unique but questionable

4 Prosecutor v. Brima, SCSL-2003-06-PT, Prosecutor v. Kamara, SCSL-2003-10-PT, Prosecutor v. Kanu, SCSL-2003-13-PT, Prosecutor v. Sesay, SCSL-2003-05-PT, Prosecutor v. Kallon, SCSL-2003-07-PT, Prosecutor v. Gbao,ᅟᇴᇲᇲᇵᅟᇲᇻᅟᄕƣơƫƾƫƺƹƞƹƢƽƢƣƽƺƹƽƺƾƣơǀƿƫƺƹƺƿƫƺƹƾƤƺƽƺƫƹƢƣƽᄕᇴᇺ January 2004, para. 39. 5 Prosecutor v. Brima, Kamara and Kanu, SCSL-2004-16-PT, Decision on Prosecution’s Application for Leave to File an Interlocutory Appeal Against the Decision on the Prosecution Motions for Joinder, 13 February 2004. 6 Prosecutor v. Brima, Kamara, Kanu, SCSL-2004-16-PT, Prosecution’s Motion for Concurrent ƣƞƽƫƹƨƺƤ ǁƫƢƣƹơƣƺƸƸƺƹƿƺƞƾƣƾᅟᇴᇲᇲᇶᅟƞƹƢᅟᇴᇲᇲᇶᅟᇳᇸᅟᄕᇵᇲƻƽƫƶᇴᇲᇲᇶᄙ xxxiv introduction procedure for the fairness of the process towards the defendants was again dismissed by the judges. They stated that the application was conceptually irreconcilable with the notion of ‘joint separate trials’7 and again refused to grant leave to appeal.8 With that decision, and the announcement of the Trial Chamber to hear the cases against the RUF and CDF defendants fĳirst, it became unclear when the case against the three AFRC defendants would eventually begin. But on 17 January 2005, the President of the Court assigned the case to the newly formed Trial Chamber II, composed of Justices Teresa Doherty (Northern Ireland), Richard Lussick (Samoa Islands) and Julia Sebutinde (Uganda).9 The newly composed Trial Chamber II proceeded to trial without delay in March 2005, and as it was dealing with one case only, in contrast to Trial Chamber I which had to deal with the RUF case and CDF cases on a three week rotational basis, it was able to hear the evidence and close the trial even before the two other cases that had started several months earlier. Before the case was handed over to Trial Chamber II, a couple of preliminary motions were fĳiled by defence counsel. Specifĳically, the defendant Kamara challenged the constitutionality of the agreement to establish the SCSL and additionally argued that he benefĳited from an amnesty that was granted to all combatants in the Lomé Peace Accord, which was signed by the Government of Sierra Leone and the RUF on 7 July 1999. Under yet another one of the Court’s novel procedures aimed at increasing the efffĳiciency of trials, this time contained in Rule 72 of the Rules, the motions were forwarded to the Appeals Chamber for determination. The judges of that chamber unanimously rejected those arguments and decided that the Court had been legally established jointly by the Government of Sierra Leone and the United Nations. In relation to the amnesty, it held that according to international law, amnesties have no validity in respect of ‘international crimes’ which are being prosecuted before an international court. The debate over whether or not this conclusion was correct will no doubt continue in the literature. As already noted, the Trial Chamber decided that the cases of the AFRC defendants should be joined and that the Prosecution would fĳile a consolidated indictment against the three defendants, which was accordingly done on 5 February

7 Prosecutor v. Brima, Kamara and Kanu, SCSL-2004-16-PT, Decision on the Prosecution Motion Ƥƺƽƺƹơǀƽƽƣƹƿ ƣƞƽƫƹƨƺƤ ǁƫƢƣƹơƣƺƸƸƺƹƿƺƞƾƣƾᅟᇴᇲᇲᇶᅟᇳᇷᅟƞƹƢᅟᇴᇲᇲᇶᅟᇳᇸᅟᄕᇳᇳƞǄ 2004. 8 Prosecutor v. Brima, Kamara and Kanu, SCSL-2004-16-PT, Decision on Prosecution Application Ƥƺƽƣƞǁƣƿƺ ƫƶƣƞƹ ƹƿƣƽƶƺơǀƿƺƽǄƻƻƣƞƶƨƞƫƹƾƿƣơƫƾƫƺƹƺƹƺƿƫƺƹƤƺƽƺƹơǀƽƽƣƹƿ ƣƞƽƫƹƨƺƤ Evidence Common to Cases SCSL-2004-15-PT and SCSL-2004-16-PT, 4 June 2004. 9 Prosecution v. Brima, Kamara and Kanu,ᅟᇴᇲᇲᇶᅟᇳᇸᅟᄕƽƢƣƽƾƾƫƨƹƫƹƨƞƞƾƣƿƺƞƽƫƞƶ Chamber, 17 January 2005. The Judges of Trial Chamber II opted for an an unorthodox procedure of rotating the presidency on a yearly basis, thus Justice Doherty was presiding Judge from January 2005 to January 2006, Justice Lussick from January 2006 to January 2007 and Justice Sebutinde from January 2007 to the delivery of the sentencing judgement. introduction xxxv

2004. A new case number – SCSL-04-16 – was duly assigned to the AFRC case.10 Shortly thereafter the Prosecution applied for leave to amend the Consolidated Indictment to add a count of ‘other inhumane acts’ pursuant to Article 2(g) of the Statute for acts of ‘forced marriage.’11 This proved to be one of the most controversial counts at the Court which would be setting a historical precedent in international criminal law. Finally, and shortly before the start of the evidentiary phase of the trial, the Prosecution withdrew four counts, which mainly dealt with attacks against United Nation Peacekeepers and their hostage taking.12 Thus, the operative indictment at trial comprised a total of 14 counts. All three defendants were charged with seven counts of crimes against humanity, punishable under Article 2 of the Statute: murder, extermination, rape, sexual slavery and other forms of sexual violence, other inhumane acts (including physical violence) and enslavement (respectively Counts 3, 4, 6, 7, 8, 11 and 13). Furthermore, all three defendants were charged with six counts of violations of Article 3 Common to the Geneva Conventions (Common Article 3) and of Additional Protocol II, punishable under Article 3 of the Statute: 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 (respectively Counts 1, 2, 5, 10, 9, and 14). In addition, all three defendants were 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, constituting an ‘other serious violation of international humanitarian law’ (Count 12). The Prosecution alleged that the defendants – by holding senior positions within the fĳighting forces during the entire period of the Indictment – were individually responsible for the crimes committed by the AFRC forces, pursuant to Article 6(1) of the Statute and, in addition or alternatively, indirectly responsibile pursuant to Article 6(3) of the Statute. The Prosecution alleged that the defendants participated in a Joint Criminal Enterprise (JCE) with RUF members 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. Nevertheless, this mode of invoking JCE liability was

10 Prosecutor v. Brima, Kamara and Kanu, SCSL-2004-16-PT, Indictment, 5 February 2004; see also Prosecutor v. Brima, Kamara and Kanu, SCSL-2004-16-PT, Decision for the Assignment of a New Case Number, 3 February 2004. 11 Prosecutor v. Brima, Kamara and Kanu, SCSL-2004-16-PT, Request for Leave to Amend the Indictment, 9 February 2004. 12 Prosecutor v. Brima, Kamara and Kanu, SCSL-2004-16-PT, Decision on the Prosecution Application to Further Amend the Amended Consolidated Indictment by Withdrawing Counts 15-18, 15 February 2005 and Corrigendum to Decision on the Prosecution Application to Further Amend the Amended Consolidated Indictment by Withdrawing Counts 15-18, 15 February 2005. xxxvi introduction dismissed by the trial judges, stating that it was not properly pleaded, as will be discussed in further detail below. ƣƞƽƫƹƨƿƩƣƽƺƾƣơǀƿƫƺƹƣǁƫƢƣƹơƣơƺƹƿƫƹǀƺǀƾƶǄƤƽƺƸƞƽơƩᇴᇲᇲᇷƿƺƺǁƣƸƟƣƽ 2005, the Trial Chamber concluded the Prosecution case within about six months. In February 2006, the judges dismissed a defence application for a judgement of ƞơƼǀƫƿƿƞƶƞƹƢƿƩƣƣƤƣƹơƣơƞƾƣǂƞƾƩƣƞƽƢƤƽƺƸǀƹƣᇴᇲᇲᇸƿƺơƿƺƟƣƽᇴᇲᇲᇸᄙ ƫƹƞƶ arguments were heard in December 2006. Considering the size and scope of the case, the Trial Chamber managed to prepare a substantial judgement within six months of deliberations. It rendered judgement in June 2007 wherein it convicted all the defendants on 11 of the 14 Counts in the indictment. The judgement can be summarized as follows. The defendants were members of the Sierra Leone Army that staged a coup on 25 May 1997 against the democratically elected government of President Ahmad Tejan Kabbah. By that time, diffferent Sierra Leonean governments had been fĳighting a rebel group, the RUF, since March 1991. The military junta established a government, the so-called Armed Forces Revolutionary Council, and proposed an unusual coalition with its former foe, the RUF. The joined AFRC-RUF government, however, lacked support both domestically and internationally. It faced military opposition by the Nigerian-led ƿƽƺƺƻƾƤƽƺƸǁƞƽƫƺǀƾƣƾƿƤƽƫơƞƹƾƿƞƿƣƾƞƹƢƶƺơƞƶƸƫƶƫƿƫƞƾᄕƿƩƣƾƺᅟơƞƶƶƣƢ Civil Defence Forces, an amalgamation of vigilantes and traditional hunters from various Sierra Leonean tribes, including the Mende (kamajors), Temnes (kpethis) ƞƹƢƞƶǀƹƴƞƾᄬkapras). After managing to hold on to power for about nine months, the junta was ƢƣƤƣƞƿƣƢƞƹƢƢƫƾƶƺƢƨƣƢƤƽƺƸ ƽƣƣƿƺǂƹƟǄƿƩƣ ƿƽƺƺƻƾƫƹ ƣƟƽǀƞƽǄᇳᇻᇻᇺᄙ ƺǂƣǁƣƽᄕƿƩƣƿƽƺƺƻƾǂƣƽƣƞƟƶƣƿƺƥƷƣƣƫƹƿƺǁƞƽƫƺǀƾƻƞƽƿƾƺƤƫƣƽƽƞƣƺƹƣᄕƸƞƫƹƶǄƿƩƣ Koinadugu, Kono and Kailahun Districts in the Northern and Eastern part of the country. Even though the AFRC/RUF forces had already displayed serious mal- treatment of the civilian population while in government, their ousting resulted into an outright and deliberate campaign of violence against the population. The ousted former members of the army demonstrated particular brutality and were responsible for most of the amputations during the campaigns of violence in 1998, ơƞƶƶƫƹƨƤƺƽᅵƻƣƽƞƿƫƺƹǀƿ ƞƹƢᅷƞƹƢƩƞǁƫƹƨƞƹƺƿƺƽƫƺǀƾƤƣƸƞƶƣƧƬƨƩƿƣƽƫƹƿƩƣƫƽ ƽƞƹƴƾƴƹƺǂƹƞƾᅵƢƞƸƞǀƿ ƞƹƢᄙᅷ In as much as the AFRC and RUF troops initially cooperated, the Trial Chamber found that the core troops sub-divided into separate groups and followed their own separate motivations. What transpired was a journey by the AFRC forces, led by the three accused, from Koinadugu and Bombali Districts in the far north, fĳinally ending in Freetown in the Western Area. In their return march to the national capital, AFRC combatants perpetrated some of the most heinous crimes during the decade-long Sierra Leonean conflict. This bloody track culminated into what became known as the January Invasion of Freetown in 1999. But the forces led by the defendants were unable to hold the national capital and had to retreat introduction xxxvii to nearby Port Loko District, where they continued their campaign of terror against the civilian population. Each of the three defendants was found individually criminally responsible for acts of terror, collective punishments, extermination, unlawful killings, rape, physical violence (mutilation), outrages upon personal dignity (sexual slavery), recruitment and use of child soldiers, enslavement and pillage. The Trial Chamber found that none of the defendants were individually criminally responsible for crimes alleged in Bo, Kenema, Kailahun and Koinadugu Districts, as these crimes were committed by RUF rebels or AFRC troops who were not associated with the three men at the time. The Trial Chamber found that in Bombali District, Brima committed extermination at the village of Karina; ordered his troops to terrorize the civilian population of Karina and Rosos; ordered the recruitment of child soldiers at Rosos; ordered killings at Mateboi and Gbendembu; ordered the use of child soldiers at Rosos; and planned the use of child soldiers, sexual slavery and enslavement throughout the District. The judges also found that in Freetown and the Western Area of Sierra Leone, Brima killed fĳive civilians; amputated the hand of one civilian; ordered killings of ơƫǁƫƶƫƞƹƾƞƿ ƺǀƽƞƩƞǄᄖƿƞƿƣ ƺǀƾƣᄖƫƾƾǄƣƹƿƞƶ ƺƸƣƞƹƢƺƨƟƞƶƞƹƺƾƼǀƣᄖ ordered the enslavement of civilians and the recruitment of child solders; ordered his troops to terrorize the civilian population; ordered his troops to subject civilians to collective punishments; ordered looting; planned the use of child soldiers, sexual slavery and enslavement throughout the area; and aided and abetted killings at Fourah Bay. Brima was further found liable as a superior for the crimes committed by AFRC troops in Bombali and Freetown and in the Western Area. The Trial Chamber held that Brima, as the overall commander, had efffective control over these troops, knew or should have known about the crimes committed and that he failed to prevent his troops from committing crimes or punishing them. Consequently, the Trial Chamber entered convictions against the Defendant Brima on Counts 1-6, 9-10 and 12-14. The Trial Chamber found that in the town of Karina in Bombali District, Kamara ordered the killing of fĳive girls. It found that in Freetown and the Western Area, Kamara aided and abetted the killing of civilians at Fourah Bay and aided and abetted the amputation of an unknown number of civilians. Kamara was further found liable as a superior for the crimes committed by AFRC troops in Kono, Bombali, Freetown and the Western Area and Port Loko Districts. The Trial Chamber held that Kamara was the overall commander of AFRC troops in Kono and Port Loko and a deputy commander in Bombali and Freetown and Western Area. In these positions, he had efffective control over these troops, knew or should have known about the crimes committed, and failed to prevent his troops from committing crimes or punishing them. Based on these xxxviii introduction fĳindings, the Trial Chamber entered convictions against the Defendant Kamara on Counts 1-6, 9-10 and 12-14. With respect to the last of the three men, the Trial Chamber found that Kanu planned the use of child soldiers, sexual slavery and enslavement throughout Bombali District. The judges held that in Freetown and the Western Area, Kanu amputated civilians at Kissy and Upgun; looted property; ordered the killing of hors de combat ƾƺƶƢƫƣƽƾᄖƺƽƢƣƽƣƢƿƩƣƴƫƶƶƫƹƨƾƺƤơƫǁƫƶƫƞƹƾƫƹƺƨƟƞƶƞƹ Mosque; ordered amputations at Ferry Junction and Upgun; instigated the killing of civilians in Freetown; aided and abetted the killing of civilians at Fourah Bay; and planned the use of child soldiers, sexual slavery and enslavement throughout the District. Kanu was further found liable as a superior for the crimes committed by AFRC troops in Bombali and Freetown and the Western Area. The Trial Chamber held that Kanu, as a senior commander, had efffective control over these troops, knew or should have known about the crimes committed and failed to prevent his troops from committing crimes or punishing them. Consequently, the Trial Chamber entered convictions against the Defendant Kanu on Counts 1-6, 9-10 and 12-14. ƹᇳᇻǀƶǄᇴᇲᇲᇹᄕƿƩƣƽƫƞƶƩƞƸƟƣƽƾƣƹƿƣƹơƣƢƶƣǃƞƸƟƞƽƫƸƞƞƹƢƞƹƿƫƨƫƣ Borbor Kanu each to a single term of imprisonment of fĳifty (50) years for all the counts in the Indictment in respect of which they were found guilty. Ibrahim Bazzy Kamara was sentenced to a single term of imprisonment of forty-fĳive (45) years for all the counts on which he was found guilty. As is usual practice in criminal courts, at the national and international levels, credit was given to each defendant for the period during which he had been detained pending the completion ƺƤƩƫƾƿƽƫƞƶᄙ ƹơƿƺƟƣƽᇴᇲᇲᇻƿƩƣƿƩƽƣƣơƺƹǁƫơƿƾǂƣƽƣƿƽƞƹƾƤƣƽƽƣƢƿƺǂƞƹƢƞƿƺƾƣƽǁƣ their sentence. As mentioned above, the Trial Chamber did acquit the defendants on three counts. With respect to Count 11, a crime against humanity of ‘other inhumane acts,’ the acts of physical violence proven under this count were beatings and ill treatment of civilians by AFRC/RUF troops in Kenema District during the AFRC Government period (May 1997 – February 1998). The three defendants were acquitted because the Prosecution failed to prove that the defendants were responsible, either through direct participation or as superiors, for those beatings and ill treatment. With respect to Count 8, no conviction was entered because there was no evidence of sexual violence constituting an ‘other inhumane act’ which was not subsumed under Count 6 (rape) and Count 9 (outrages upon personal dignity, specifĳically sexual slavery). Similarly, the Trial Chamber did not enter convictions for Count 7, which charged the three defendants with responsibility for sexual slavery and other forms of sexual violence. The Trial Chamber held that the Prosecution was required introduction xxxix to charge each crime under a separate count. The judges accordingly held by majority (Judge Doherty dissenting) that Count 7 was duplicitous, since it pleaded two diffferent crimes (sexual slavery and other forms of sexual violence) in one count. ƺǂƣǁƣƽᄕƾƫƹơƣƿƩƣƞƽƿƫƣƾƩƞƢƻƽƣƾƣƹƿƣƢƞƾƫƨƹƫƧƬơƞƹƿƞƸƺǀƹƿƺƤƣǁƫƢƣƹơƣƺƤ sexual slavery, the Trial Chamber decided that it was in the interests of justice to consider this evidence under Count 9, ‘outrages upon personal dignity.’ The Trial Chamber ruled that sexual slavery fulfĳilled the defĳinition of an outrage on personal dignity, and the evidence was used to make a fĳinding that the crimes of outrages upon personal dignity (sexual slavery) were committed under Count 9 rather than Count 7. The majority also found that the evidence of forced marriage adduced by the Prosecution amounted to proof of sexual slavery and not a separate crime against humanity of ‘forced marriage.’ The result was that evidence regarding so called ‘bush wives’ was considered as part of the Trial Chamber’s fĳindings on Count 9, outrages upon personal dignity (sexual slavery). Judge Doherty, dissenting also on this matter, felt that forced marriage was a diffferent crime to sexual slavery, due to the conjugal status forced on these women and the social stigma associated with being a bush wife, which caused them signifĳicant mental sufffering. The Appeals Chamber later reversed the Trial Chamber position on this point, endorsing the dissenting arguments of Judge Doherty. The Prosecutor had also alleged that the three defendants were participants in a JCE with senior RUF commanders. In essence, JCE is a mode of accomplice liability in international criminal law pursuant to which individuals can be held responsible for crimes committed by others if it is proved that the people were acting together with a common purpose or plan which involved the commission of crimes. If proven, this mode of liability would have resulted in the three defendants being found liable for crimes committed by members of the RUF. The Trial Chamber made an important ruling in relation to the pleading requirements of a JCE when it declined to consider that mode of liability, holding that the Prosecutor had not properly pleaded it in the Indictment. This was because the Indictment alleged that the common plan or purpose shared by senior AFRC commanders, including the three defendants and senior RUF commanders, was to gain political power and control over Sierra Leone. The Prosecutor argued that this plan involved the commission of crimes, as the commission of atrocities against civilians by members of both rebel groups was fundamental to their campaign for control of the country. The Trial Chamber found that the purpose of a joint criminal enterprise must be inherently criminal. The purpose allegedly shared by the AFRC and RUF leaders – to gain political and territorial control over the country – was not a crime under international law and therefore cannot be the basis of a JCE. It further ruled that the Prosecution’s manner of citing the third xl introduction form of JCE defectively pleaded the non-criminal purpose of taking power and control over a country; accepting that approach would conflate the two distinct features of the law relating to ius in bello and ius ad bellum. This fĳinding on JCE highlights core principles of international humanitarian law, as by rejecting the third form of JCE, the Trial Chamber clearly rejected the Prosecution’s position that mere participation in an armed conflict is sufffĳicient to attribute criminal responsibility, even if it is foreseeable that members of the armed group, which are pursuing the common purpose of taking power and control over a country, may commit war crimes. This signifĳicant fĳinding departed from the positions taken by other chambers in the SCSL, and though later overturned, may prove to be more consonant with the more cautious recent trend in international jurisprudence limiting JCE’s application to the fĳirst and second vari- ƞƹƿƾᄙ ƫƾƿƺƽǄƸƞǄƣǁƣƹƽƣƸƣƸƟƣƽƫƿƞƾƺƹƣƺƤƿƩƣƧƬƹƣƾƿƽƫƞƶƩƞƸƟƣƽ Ƣƣơƫƾƫƺƹƾ for the fairness which it displayed towards the protection of the fundamental rights of the accused consistent with the Court’s statute and international human rights law. About seven months after the Trial Chamber Judgement, the Appeals Chamber rendered its judgement on the appeal of both the Defendants and the Prosecutor. The latter appealed on the legal and factual errors with respect to the fĳindings of the Trial Chamber in relation to crimes committed in specifĳic geographical locations that had not been charged but where the Prosecution had led evidence; the fĳinding of the Trial Chamber that the common purpose of the JCE had been properly pleaded; the dismissals of the sexual slavery and the forced marriage charges; fĳindings on enslavement and cumulative convictions, among others. The defendants fĳiled appeals in relation to equality of arms, the modes of attribution, the assessment of the Trial Chamber on the credibility of witnesses, the greatest responsibility requirement and their individual sentences. ƣƿᄕ ƟƣƤƺƽƣ ƿƩƣ ƻƻƣƞƶƾ ƩƞƸƟƣƽ ǂƞƾ ƞƟƶƣ ƿƺ ơƺƹǁƣƹƣ ƿƺ ƢƣƶƫƟƣƽƞƿƣᄕ ƿƩƣ Prosecution requested the disqualifĳication of Justice Geofffrey Robertson. This was efffectively the fĳirst time in contemporary international criminal law that the Prosecution, rather than the Defence, had sought the recusal of a Judge. The RUF accused before the SCSL and Charles Taylor had been previously successful with motions for the disqualifĳication of Justice Robertson. In the Taylor case, Justice Robertson had recused himself, and in the RUF case, he was disqualifĳied by his colleagues. Before a formal decision was pronounced on the Prosecution’s unique application, Justice Robertson resigned in August 2007 from his position as an appeals judge for personal reasons. This thereby rendered the matter moot. In a relatively brief judgement of about 100 pages, the Appeals Chamber, consisting of Justice Gelaga King (Sierra Leone), Justice Renate Winter (Austria), Justice Raja Fernando (Sri Lanka), Justice Emmanuel Ayoola (Nigeria) and Justice Jon Kamanda (Sierra Leone), made critical fĳindings on the greatest responsibility introduction xli requirement, crimes of sexual violence and ‘forced marriages,’ the pleading requirement of JCE and sentencing amongst others. In relation to the greatest responsibility requirement, the Appeals Chamber upheld the fĳindings of the Trial Chamber and the notion that the reference in Article 1 of the Statute of “persons who bear the greatest responsibility” does not create a jurisdictional requirement, but that this wording rather is meant to streamline the prosecutorial strategy.13 In what may well reflect their ultimate concern, the Appeals Chamber went as far as holding that “it is inconceivable that after a long and expensive trial the Trial Chamber could conclude that although the commission of serious crimes has been established beyond reasonable doubt against the accused, the indictment ought to be struck out on the ground that the accused was not one of those who bore the greatest responsibility.”14 With respect to the dismissal of Count 7 of the Indictment regarding sexual slavery and other forms of sexual violence, the Appeals Chamber overturned the Trial Chamber fĳinding. It ruled that even though the pleading offfended the rule against duplicity, the Trial Chamber should have only struck the pleading of ‘other forms of sexual violence’ and should have allowed the charge of sexual slavery to stand on its own. Despite that fĳinding, the Appeals Chamber stated that it was not necessary to substitute a conviction for sexual slavery because the Trial Chamber had already relied upon that part of the evidence for the conviction of the war crimes charge of outrages against personal dignity (Count 9).15 The defendants appealed against the sentences of 50 years (Brima and Kanu) and 45 years (Kamara) of imprisonment imposed by the Trial Chamber. They challenged the sentences inter alia on the grounds that the Trial Chamber sentences were inconsistent with those of the International Criminal Tribunal for Rwanda (ICTR).16 The Appeals Chamber dismissed the Defence appeal, noting that Article 19(1) of the Court’s Statute stipulates that it falls within the Trial Chamber’s discretion as to whether it takes recourse to the sentencing practices of the ICTR.17 It further rejected the defendants’ argument that the Trial Chamber did not properly consider mitigating factors in sentencing. It concluded that the appellants did not meet their duty of showing that the Trial Chamber abused its discretion.18 In this regard the Appeals Chamber erroneously referred to the passage above, referring to the “heinous, brutal and atrocious crimes” such as murder, gang rape, and bodily mutilation for which the accused were not all convicted by the Trial

13 Trial Judgement, para. 653. 14 Appeals Judgement, para. 283. 15 Appeals Judgement, para. 110. 16 Appeals Judgement, para. 310. 17 Appeals Judgement, para. 311. 18 Appeals Judgement, paras. 312-315. xlii introduction

Chamber. The Appeals Chamber nevertheless concluded that the Trial Chamber properly exercised its discretion and that the sentences imposed were justifĳied.19 Signifĳicant fĳindings in the trial and appeals judgement and interlocutory decisions that will be of interest to researchers can be enumerated as follows: whether the “greatest responsibility” requirement is a jurisdictional requirement; the legality of domestic amnesties for international crimes; the recruitment of child soldiers and whether it constituted a customary international law violation by November 1996; the crime against humanity of forced marriage as another inhumane act and the link, or lack thereof, to sexual slavery; command responsibility within irregular armed groups; the notion of collective punishment and acts of terrorism as war crimes in non-international armed conflicts; testimonial privileges of a human rights offfĳicer; issues relating to the withdrawal of defence counsel, to name only a few.

19 Appeals Judgement, paras. 326-328. PART I

INDICTMENTS

THE SPECIAL COURT FOR SIERRA LEONE CASE NO. SCSL-03-06-I THE PROSECUTOR

Against ALEX TAMBA BRIMA, also known as TAMBA ALEX BRIMA also known as GULLIT

INDICTMENT The Prosecutor, Special Court for Sierra Leone, under Article 15 of the Statute of the Special Court for Sierra Leone (the Statute) charges: ALEX TAMBA BRIMA also known as (aka) TAMBA ALEX BRIMA aka GULLIT with CRIMES AGAINST HUMANITY, VIOLATIONS OF ARTICLE 3 COMMON TO THE GENEVA CONVENTIONS AND OF ADDITIONAL PROTOCOL II and OTHER SERIOUS VIOLATIONS OF INTERNATIONAL HUMANITARIAN LAW, in violation of Articles 2, 3 and 4 of the Statute as set forth below:

THE ACCUSED 1. ALEX TAMBA BRIMA aka TAMBA ALEX BRIMA aka GULLIT (the ACCUSED) was born 23 November 1971 at Yaryah Village, Kono District, Republic of Sierra Leone. 2. The ACCUSED joined the Sierra Leone Army (SLA) in April 1985 and rose to the rank of Stafff Sergeant.

GENERAL ALLEGATIONS 3. At all times relevant to this Indictment, a state of armed conflict existed within Sierra Leone. For the purposes of this Indictment, organized armed factions involved in this conflict included the Revolutionary United Front (RUF), the Civil Defence Forces (CDF) and the Armed Forces Revolutionary Council (AFRC). 4. A nexus existed between the armed conflict and all acts or omissions charged herein as Violations of Article 3 common to the Geneva Conventions and of Additional Protocol II and as Other Serious Violations of International Humanitarian Law. 4 part i

5. The organized armed group that became known as the RUF, led by FODAY SAYBANA SANKOH aka POPAY aka PAPA aka PA, was founded about 1988 or 1989 in Libya. The RUF, under the leadership of FODAY SAYBANA SANKOH, began organized armed operations in Sierra Leone in March 1991. During the ensuing armed conflict, the RUF forces were also referred to as “RUF,” “rebels” and “People’s Army.” 6. The CDF was comprised of Sierra Leonean traditional hunters, including the Kamajors, Gbethis, Kapras, Tamaboros and Donsos. The CDF fought against the RUF and AFRC. 7. On 30 November 1996, in Abidjan, Ivory Coast, FODAY SAYBANA SANKOH and Ahmed Tejan Kabbah, President of the Republic of Sierra Leone, signed a peace agreement which brought a temporary cessation to active hostilities. Thereafter, the active hostilities recommenced. 8. The AFRC was founded by members of the Armed Forces of Sierra Leone who seized power from the elected government of the Republic of Sierra Leone via a coup d’état on 25 May 1997. Soldiers of the Sierra Leone Army (SLA) comprised the majority of the AFRC membership. On that date JOHNNY PAUL KOROMA aka JPK became the leader and Chairman of the AFRC. The AFRC forces were also referred to as “Junta,” “soldiers,” “SLA,” and “ex-SLA.” 9. Shortly after the AFRC seized power, at the invitation of JOHNNY PAUL KOROMA, and upon the order of FODAY SAYBANA SANKOH, leader of the RUF, the RUF joined with the AFRC. The AFRC and RUF acted jointly thereafter. The AFRC/RUF Junta forces (Junta) were also referred to as “Junta,” “rebels,” “soldiers,” “SLA,” “ex-SLA” and “People’s Army.” 10. After the 25 May 1997 coup d’état, a governing body, the Supreme Council, was created within the Junta. The governing body included leaders of both the AFRC and RUF. 11. The Junta was forced from power by forces acting on behalf of the ousted government of President Kabbah about 14 February 1998. President Kabbah’s government returned in March 1998. After the Junta was removed from power the AFRC/RUF alliance continued. 12. On 7 July 1999, in Lomé, Togo, FODAY SAYBANA SANKOH and Ahmed Tejan Kabbah, President of the Republic of Sierra Leone, signed a peace agreement. However, active hostilities continued. 13. The ACCUSED and all members of the organized armed factions engaged in fĳighting within Sierra Leone were required to abide by International Humanitarian Law and the laws and customs governing the conduct of armed conflicts, including the Geneva Conventions of 12 August 1949, and Additional Protocol II to the indictments 5

Geneva Conventions, to which the Republic of Sierra Leone acceded on 21 October 1986. 14. All offfences alleged herein were committed within the territory of Sierra Leone after 30 November 1996. 15. All acts and omissions charged herein as Crimes Against Humanity were committed as part of a widespread or systematic attack directed against the civilian population of Sierra Leone. 16. The words civilian or civilian population used in this Indictment refer to persons who took no active part in the hostilities, or who were no longer taking an active part in the hostilities. INDIVIDUAL CRIMINAL RESPONSIBILITY 17. Paragraphs 1 through 16 are incorporated by reference. 18. At all times relevant to this Indictment, ALEX TAMBA BRIMA was a senior member of the AFRC, Junta and AFRC/RUF forces. 19. The ACCUSED was a member of the group which staged the coup and ousted the government of President Kabbah. JOHNNY PAUL KOROMA, Chairman and leader of the AFRC, appointed the ACCUSED a Public Liaison Offfĳicer (PLO) within the AFRC. In addition, the ACCUSED was a member of the Junta governing body. 20. Between mid February 1998 and about 30 April 1998, ALEX TAMBA BRIMA was in direct command of AFRC/RUF forces in the Kono District. In addition, the ACCUSED was in direct command of AFRC/RUF forces which conducted armed operations throughout the northeastern 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. As of about 22 December 1998, the ACCUSED was in command of AFRC/RUF forces which attacked Freetown on 6 January 1999. 21. In the positions referred to in paragraphs 18 through 20, ALEX TAMBA BRIMA, individually, or in concert with JOHNNY PAUL KOROMA, FODAY SAYBANA SANKOH, ISSA HASSAN SESAY aka ISSA SESAY, SAM BOCKARIE aka MOSQUITO aka MASKITA, MORRIS KALLON aka BILAI KARIM and/or other superiors in the AFRC, Junta and AFRC/RUF forces, exercised authority, command and control over all subordinate members of the AFRC, Junta and AFRC/ RUF forces. 22. At all times relevant to this Indictment, the ACCUSED, through his association with the RUF, acted in concert with CHARLES GHANKAY TAYLOR aka CHARLES MACARTHUR DAPKPANA TAYLOR. 6 part i

23. The AFRC, including the ACCUSED, and the RUF 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. 24. 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. 25. ALEX TAMBA BRIMA, by his acts or omissions, is 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 the ACCUSED planned, instigated, ordered, committed or in whose planning, preparation or execution the Accused otherwise aided and abetted, or which crimes were within a joint criminal enterprise in which the ACCUSED participated or were a reasonably foreseeable consequence of the joint criminal enterprise in which the ACCUSED participated. 26. In addition, or alternatively, pursuant to Article 6.3. of the Statute, ALEX TAMBA BRIMA, while holding positions of superior responsibility and exercising efffective control over his subordinates, is individually criminally responsible for the crimes referred to in Articles 2, 3 and 4 of the Statute. The ACCUSED is responsible for the criminal acts of his subordinates in that he knew or had reason to know that the subordinate was about to commit such acts or had done so and the ACCUSED failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof.

CHARGES 27. Paragraphs 17 through 26 are incorporated by reference. 28. At all times relevant to this Indictment, members of the RUF, AFRC, Junta and/or AFRC/RUF forces (AFRC/RUF), subordinate to and/or acting in concert with ALEX TAMBA BRIMA, conducted armed attacks throughout the territory of the Republic of Sierra Leone, including, but not limited, to Bo, Kono, Kenema, Bombali and Kailahun Districts and Freetown. Targets of the armed attacks included civilians and humanitarian assistance personnel and indictments 7 peacekeepers assigned to the United Nations Mission in Sierra Leone (UNAMSIL), which had been created by United Nations Security Council Resolution 1270 (1999). 29. These attacks were carried out primarily to terrorize the civilian population, but also were used to punish the population for failing to provide sufffĳicient support to the AFRC/RUF, or for allegedly providing support to the Kabbah government or to pro-government forces. The attacks included unlawful killings, physical and sexual violence against civilian men, women and children, abductions and looting and destruction of civilian property. Many civilians saw these crimes committed; others returned to their homes or places of refuge to fĳind the results of these crimes – dead bodies, mutilated victims and looted and burnt property. 30. As part of the campaign of terror and punishment the AFRC/RUF routinely captured and abducted members of the civilian population. Captured women and girls were raped; many of them were abducted and used as sex slaves and as forced labour. Some of these women and girls were held captive for years. Men and boys who were abducted were also used as forced labour; some of them were also held captive for years. Many abducted boys and girls were given combat training and used in active fĳighting. AFRC/RUF also physically mutilated men, women and children, including amputating their hands or feet and carving “AFRC” and “RUF” on their bodies.

COUNTS 1 – 2: TERRORIZING THE CIVILIAN POPULATION AND COLLECTIVE PUNISHMENTS 31. Members of the AFRC/RUF subordinate to and/or acting in concert with ALEX TAMBA BRIMA committed the crimes set forth below in paragraphs 32 through 57 and charged in Counts 3 through 13, as part of a campaign to terrorize the civilian population of the Republic of Sierra Leone, and did terrorize that population. The AFRC/RUF also committed the crimes to punish the civilian population for allegedly supporting the elected government of President Ahmed Tejan Kabbah and factions aligned with that government, or for failing to provide sufffĳi- cient support to the AFRC/RUF. By his acts or omissions in relation, but not limited to these events, ALEX TAMBA BRIMA, pursuant to Article 6.1. and, or alternatively, Article 6.3. of the Statute, is individually criminally responsible for the crimes alleged below: Count 1: Acts of Terrorism, a VIOLATION OF ARTICLE 3 COMMON TO THE GENEVA CONVENTIONS AND OF ADDITIONAL PROTOCOL II, punishable under Article 3.d. of the Statute; And: 8 part i

Count 2: Collective Punishments, a VIOLATION OF ARTICLE 3 COMMON TO THE GENEVA CONVENTIONS AND OF ADDITIONAL PROTOCOL II, punishable under Article 3.b. of the Statute.

COUNTS 3 – 5: UNLAWFUL KILLINGS 32. Victims were routinely shot, hacked to death and burned to death. Unlawful killings included, but were not limited to, the following: Bo District 33. Between 1 June 1997 and 30 June 1997, AFRC/RUF attacked Tikonko, Telu, Sembehun, Gerihun and Mamboma, unlawfully killing an unknown number of civilians; Kenema District 34. Between 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; Kono District 35. About 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; Bombali District 36. Between about 1 May 1998 and 31 July 1998, in locations including Karina, members of AFRC/RUF unlawfully killed an unknown number of civilians; Freetown 37. Between 6 January 1999 and 31 January 1999, AFRC/RUF conducted armed attacks throughout the city of Freetown. These attacks included large scale unlawful killings of civilian men, women and children at locations throughout the city, including the State House, Parliament building, Connaught Hospital, and the Kissy, Fourah Bay, Upgun, Calaba Town and Tower Hill areas of the city. By his acts or omissions in relation, but not limited to these events, ALEX TAMBA BRIMA, pursuant to Article 6.1. and, or alternatively, Article 6.3. of the Statute, is individually criminally responsible for the crimes alleged below: Count 3: Extermination, a CRIME AGAINST HUMANITY, punishable under Article 2.b. of the Statute; In addition, or in the alternative: Count 4: Murder, a CRIME AGAINST HUMANITY, punishable under Article 2.a. of the Statute; indictments 9

In addition, or in the alternative: Count 5: 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.

COUNTS 6 – 8: SEXUAL VIOLENCE 38. Widespread sexual violence committed against civilian women and girls included brutal rapes, often by multiple rapists. Acts of sexual violence included, but were not limited to, the following: Kono District 39. Between about 14 February 1998 and 30 June 1998, members of AFRC/RUF raped hundreds of women and girls at various locations throughout the 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. An unknown number of women and girls were abducted from various locations within the District and used as sex slaves; Bombali District 40. Between about 1 May 1998 and 31 July 1998, members of AFRC/RUF raped an unknown number of women and girls in locations such as Mandaha. In addition, an unknown number of abducted women and girls were used as sex slaves; Kailahun District 41. At all times relevant to this 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, brought to AFRC/RUF camps in the District, and used as sex slaves; Freetown 42. Between 6 January 1999 and 31 January 1999, members of AFRC/RUF raped hundreds of women and girls throughout the Freetown area, and abducted hundreds of women and girls and used them as sex slaves. By his acts or omissions in relation, but not limited to these events, ALEX TAMBA BRIMA, pursuant to Article 6.1. and, or alternatively, Article 6.3. of the Statute, is individually criminally responsible for the crimes alleged below: Count 6: Rape, a CRIME AGAINST HUMANITY, punishable under Article 2.g. of the Statute; And: 10 part i

Count 7: Sexual slavery and any other form of sexual violence, a CRIME AGAINST HUMANITY, punishable under Article 2.g. of the Statute; In addition, or in the alternative: Count 8: Outrages upon personal dignity, a VIOLATION OF ARTICLE 3 COMMON TO THE GENEVA CONVENTIONS AND OF ADDITIONAL PROTOCOL II, punishable under Article 3.e. of the Statute. COUNTS 9 – 10: PHYSICAL VIOLENCE 43. Widespread physical violence, including mutilations, was committed against civilians. Victims were often brought to a central location where mutilations were carried out. These acts of physical violence included, but were not limited to, the following: Kono District 44. Between 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 offf limbs and carving “AFRC” and “RUF” on the bodies of the civilians; Freetown 45. Between 6 January 1999 and 31 January 1999, AFRC/RUF mutilated an unknown number of civilian men, women and children in various areas of Freetown, including the northern and eastern areas of the city, and the Kissy area, including the Kissy mental hospital. The mutilations included cutting offf limbs. By his acts or omissions in relation, but not limited to these events, ALEX TAMBA BRIMA, pursuant to Article 6.1. and, or alternatively, Article 6.3. of the Statute, is individually criminally responsible for the crimes alleged below: Count 9: Violence to life, health and physical or mental well-being of persons, in particular mutilation, a VIOLATION OF ARTICLE 3 COMMON TO THE GENEVA CONVENTIONS AND OF ADDITIONAL PROTOCOL II, punishable under Article 3.a. of the Statute; In addition, or in the alternative: Count 10: Other inhumane acts, a CRIME AGAINST HUMANITY, punishable under Article 2.i. of the Statute.

COUNT 11: USE OF CHILD SOLDIERS 46. At 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 indictments 11 fĳirst abducted, then trained in AFRC/RUF camps in various locations throughout the country, and thereafter used as fĳighters. By his acts or omissions in relation, but not limited to these events, ALEX TAMBA BRIMA, pursuant to Article 6.1. and, or alternatively, Article 6.3. of the Statute, is individually criminally responsible for the crimes alleged below: Count 11: Conscripting or enlisting children under the age of 15 years into armed forces or groups, or using them to participate actively in hostilities, an OTHER SERIOUS VIOLATION OF INTERNATIONAL HUMANITARIAN LAW, punishable under Article 4.c. of the Statute.

COUNT 12: ABDUCTIONS AND FORCED LABOUR 47. 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. The abductions and forced labour included, but were not limited to, the following: Kenema District 48. Between about 1 August 1997 and about 31 January 1998, AFRC/RUF forced an unknown number of civilians living in the District to mine for diamonds at Cyborg Pit in Tongo Field; Kono District 49. Between about 14 February 1998 and 30 June 1998, AFRC/RUF forces abducted hundreds of civilian men, women and children, and took them to various locations outside the District, or to locations within the District such as AFRC/ RUF camps, Tombodu, Koidu, Wondedu, Tomendeh. At these locations the civilians were used as forced labour, including domestic labour and as diamond miners in the Tombodu area; Bombali District 50. Between about 1 May 1998 and 31 July 1998, in Bombali District, AFRC/RUF abducted an unknown number of civilians and used them as forced labour; Kailahun District 51. At all times relevant to this Indictment, captured civilian men, women and children were brought to various locations within the District and used as forced labour; Freetown 52. Between 6 January 1999 and 31 January 1999, in particular as the AFRC/RUF were being driven out of Freetown, the AFRC/RUF abducted hundreds of civilians, including a large number of children, from various areas within Freetown, 12 part i including Peacock Farm and Calaba Town. These abducted civilians were used as forced labour. By his acts or omissions in relation, but not limited to these events, ALEX TAMBA BRIMA, pursuant to Article 6.1. and, or alternatively, Article 6.3. of the Statute, is individually criminally responsible for the crimes alleged below: Count 12: Enslavement, a CRIME AGAINST HUMANITY, punishable under Article 2.c. of the Statute.

COUNT 13: LOOTING AND BURNING 53. At all times relevant to this Indictment, AFRC/RUF engaged in widespread unlawful taking and destruction by burning of civilian property. This looting and burning included, but was not limited to, the following: Bo District 54. Between 1 June 1997 and 30 June 1997, AFRC/RUF forces looted and burned an unknown number of civilian houses in Telu, Sembehun, Mamboma and Tikonko; Kono District 55. Between about 14 February 1998 and 30 June 1998, AFRC/RUF engaged in widespread looting and burning in various locations in the District, including Tombodu, Foindu and Yardu Sando, where virtually every home in the village was looted and burned; Bombali District 56. Between 1 March 1998 and 30 June 1998, AFRC/RUF forces burned an unknown number of civilian buildings in locations such as Karina; Freetown 57. Between 6 January 1999 and 31 January 1999, AFRC/RUF forces engaged in widespread looting and burning throughout Freetown. The majority of houses that were destroyed were in the areas of Kissy and eastern Freetown; other locations included the Fourah Bay, Upgun, State House and Pademba Road areas of the city. By his acts or omissions in relation, but not limited to these events, ALEX TAMBA BRIMA, pursuant to Article 6.1. and, or alternatively, Article 6.3. of the Statute, is individually criminally responsible for the crimes alleged below: Count 13: Pillage, a VIOLATION OF ARTICLE 3 COMMON TO THE GENEVA CONVENTIONS AND OF ADDITIONAL PROTOCOL II, punishable under Article 3.f. of the Statute. indictments 13

COUNTS 14 – 17: ATTACKS ON UNAMSIL PERSONNEL 58. Between about 15 April 2000 and about 15 September 2000, AFRC/RUF engaged in widespread attacks against UNAMSIL peacekeepers and humanitarian assistance workers within the Republic of Sierra Leone, including, but not limited to locations within Bombali, Kailahun, Kambia, Port Loko, and Kono Districts. These attacks included unlawful killing of UNAMSIL peacekeepers, and abducting hundreds of peacekeepers and humanitarian assistance workers who were then held hostage. By his acts or omissions in relation, but not limited to these events, ALEX TAMBA BRIMA, pursuant to Article 6.1. and, or alternatively, Article 6.3. of the Statute, is individually criminally responsible for the crimes alleged below: Count 14: Intentionally directing attacks against personnel involved in a humanitarian assistance or peacekeeping mission, an OTHER SERIOUS VIOLATION OF INTERNATIONAL HUMANITARIAN LAW, punishable under Article 4.b. of the Statute; In addition, or in the alternative: Count 15: For the unlawful killings, Murder, a CRIME AGAINST HUMANITY, punishable under Article 2.a. of the Statute; In addition, or in the alternative: Count 16: 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; In addition, or in the alternative: Count 17: For the abductions and holding as hostage, Taking of hostages, a VIOLATION OF ARTICLE 3 COMMON TO THE GENEVA CONVENTIONS AND OF ADDITIONAL PROTOCOL II, punishable under Article 3.c. of the Statute.

Dated this 3rd day of March 2003 Freetown, Sierra Leone

David M. Crane The Prosecutor

THE SPECIAL COURT FOR SIERRA LEONE CASE NO. SCSL-03-10-I THE PROSECUTOR

Against BRIMA BAZZY KAMARA also known as IBRAHIM BAZZY KAMARA also known as ALHAJI IBRAHIM KAMARA

INDICTMENT The Prosecutor, Special Court for Sierra Leone, under Article 15 of the Statute of the Special Court for Sierra Leone (the Statute) charges: BRIMA BAZZY KAMARA also known as (aka) IBRAHIM BAZZY KAMARA aka ALHAJI IBRAHIM KAMARA with CRIMES AGAINST HUMANITY, VIOLATIONS OF ARTICLE 3 COMMON TO THE GENEVA CONVENTIONS AND OF ADDITIONAL PROTOCOL II and OTHER SERIOUS VIOLATIONS OF INTERNATIONAL HUMANITARIAN LAW, in violation of Articles 2, 3 and 4 of the Statute as set forth below:

THE ACCUSED 1. BRIMA BAZZY KAMARA aka IBRAHIM BAZZY KAMARA aka ALHAJI IBRAHIM KAMARA (the ACCUSED) was born on 7 May 1968 at Wilberforce Village in the Western Area in the Republic of Sierra Leone. 2. The ACCUSED joined the Sierra Leone Army (SLA) on 20 May 1991 and rose to the rank of Stafff Sergeant.

GENERAL ALLEGATIONS 3. At all times relevant to this Indictment, a state of armed conflict existed within Sierra Leone. For the purposes of this Indictment, organized armed factions involved in this conflict included the Revolutionary United Front (RUF), the Civil Defence Forces (CDF) and the Armed Forces Revolutionary Council (AFRC). 4. A nexus existed between the armed conflict and all acts or omissions charged herein as Violations of Article 3 common to the Geneva Conventions and of Addi- tional Protocol II and as Other Serious Violations of International Humanitarian Law. 16 part i

5. The organized armed group that became known as the RUF, led by FODAY SAYBANA SANKOH aka POPAY aka PAPA aka PA, was founded about 1988 or 1989 in Libya. The RUF, under the leadership of FODAY SAYBANA SANKOH, began organized armed operations in Sierra Leone in March 1991. During the ensuing armed conflict, the RUF forces were also referred to as “RUF,” “rebels” and “People’s Army.” 6. The CDF was comprised of Sierra Leonean traditional hunters, including the Kamajors, Gbethis, Kapras, Tamaboros and Donsos. The CDF fought against the RUF and AFRC. 7. On 30 November 1996, in Abidjan, Ivory Coast, FODAY SAYBANA SANKOH and Ahmed Tejan Kabbah, President of the Republic of Sierra Leone, signed a peace agreement which brought a temporary cessation to active hostilities. Thereafter, the active hostilities recommenced. 8. The AFRC was founded by members of the Armed Forces of Sierra Leone who seized power from the elected government of the Republic of Sierra Leone via a coup d’état on 25 May 1997. Soldiers of the Sierra Leone Army (SLA) comprised the majority of the AFRC membership. On that date JOHNNY PAUL KOROMA aka JPK became the leader and Chairman of the AFRC. The AFRC forces were also referred to as “Junta,” “soldiers,” “SLA,” and “ex-SLA.” 9. Shortly after the AFRC seized power, at the invitation of JOHNNY PAUL KOROMA, and upon the order of FODAY SAYBANA SANKOH, leader of the RUF, the RUF joined with the AFRC. The AFRC and RUF acted jointly thereafter. The AFRC/RUF Junta forces (Junta) were also referred to as “Junta,” “rebels,” “soldiers,” “SLA,” “ex-SLA” and “People’s Army.” 10. After the 25 May 1997 coup d’état, a governing body, the Supreme Council, was created within the Junta. The governing body included leaders of both the AFRC and RUF. 11. The Junta was forced from power by forces acting on behalf of the ousted government of President Kabbah about 14 February 1998. President Kabbah’s government returned in March 1998. After the Junta was removed from power the AFRC/RUF alliance continued. 12. On 7 July 1999, in Lomé, Togo, FODAY SAYBANA SANKOH and Ahmed Tejan Kabbah, President of the Republic of Sierra Leone, signed a peace agreement. However, active hostilities continued. 13. The ACCUSED and all members of the organized armed factions engaged in fĳighting within Sierra Leone were required to abide by International Humani- tarian Law and the laws and customs governing the conduct of armed conflicts, indictments 17 including the Geneva Conventions of 12 August 1949, and Additional Protocol II to the Geneva Conventions, to which the Republic of Sierra Leone acceded on 21 October 1986. 14. All offfences alleged herein were committed within the territory of Sierra Leone after 30 November 1996. 15. All acts and omissions charged herein as Crimes Against Humanity were committed as part of a widespread or systematic attack directed against the civilian population of Sierra Leone. 16. The words civilian or civilian population used in this Indictment refer to persons who took no active part in the hostilities, or who were no longer taking an active part in the hostilities.

INDIVIDUAL CRIMINAL RESPONSIBILITY 17. Paragraphs 1 through 16 are incorporated by reference. 18. At all times relevant to this Indictment, BRIMA BAZZY KAMARA was a senior member of the AFRC, Junta and AFRC/RUF forces. 19. The ACCUSED was a member of the group which staged the coup and ousted the government of President Kabbah. JOHNNY PAUL KOROMA, Chairman and leader of the AFRC, appointed the ACCUSED a Public Liaison Offfĳicer (PLO) within the AFRC. In addition, the ACCUSED was a member of the Junta governing body. 20. Between about mid-February 1998 and 30 April 1998, BRIMA BAZZY KAMARA was a commander of AFRC/RUF forces based in Kono District. In addition, the ACCUSED 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. The ACCUSED was a commander of AFRC/RUF forces which attacked Freetown on 6 January 1999. 21. In the positions referred to in paragraphs 18 through 20 above, BRIMA BAZZY KAMARA individually, or in concert with JOHNNY PAUL KOROMA aka JPK, FODAY SAYBANA SANKOH, ISSA HASSAN SESAY aka ISSA SESAY, SAM BOCKARIE aka MOSQUITO aka MASKITA, MORRIS KALLON aka BILAI KARIM, AUGUSTINE GBAO aka AUGUSTINE BAO, ALEX TAMBA BRIMA aka TAMBA ALEX BRIMA aka GULLIT and/or other superiors in the AFRC, Junta and AFRC/ RUF forces, exercised authority, command and control over all subordinate members of the AFRC, Junta and AFRC/RUF forces. 18 part i

22. At all times relevant to this Indictment, the ACCUSED, through his association with the RUF, acted in concert with CHARLES GHANKAY TAYLOR aka CHARLES MACARTHUR DAPKPANA TAYLOR. 23. The AFRC, including the ACCUSED, and the RUF 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. 24. 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. 25. BRIMA BAZZY KAMARA, by his acts or omissions, is 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 the ACCUSED planned, instigated, ordered, committed or in whose planning, preparation or execution the Accused otherwise aided and abetted, or which crimes were within a joint criminal enterprise in which the ACCUSED participated or were a reasonably foreseeable consequence of the joint criminal enterprise in which the ACCUSED participated. 26. In addition, or alternatively, pursuant to Article 6.3. of the Statute, BRIMA BAZZY KAMARA, while holding positions of superior responsibility and exercising efffective control over his subordinates, is individually criminally responsible for the crimes referred to in Articles 2, 3 and 4 of the Statute. The ACCUSED is responsible for the criminal acts of his subordinates in that he knew or had reason to know that the subordinate was about to commit such acts or had done so and the ACCUSED failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof.

CHARGES 27. Paragraphs 17 through 26 are incorporated by reference. 28. At all times relevant to this Indictment, members of the RUF, AFRC, Junta and/or AFRC/RUF forces (AFRC/RUF), subordinate to and/or acting in concert with BRIMA BAZZY KAMARA, conducted armed attacks throughout the territory indictments 19 of the Republic of Sierra Leone, including, but not limited, to Bo, Kono, Kenema, Bombali, Koinadugu and Kailahun Districts and Freetown. Targets of the armed attacks included civilians and humanitarian assistance personnel and peacekeepers assigned to the United Nations Mission in Sierra Leone (UNAMSIL), which had been created by United Nations Security Council Resolution 1270 (1999). 29. These attacks were carried out primarily to terrorize the civilian population, but also were used to punish the population for failing to provide sufffĳicient support to the AFRC/RUF, or for allegedly providing support to the Kabbah government or to pro-government forces. The attacks included unlawful killings, physical and sexual violence against civilian men, women and children, abductions and looting and destruction of civilian property. Many civilians saw these crimes committed; others returned to their homes or places of refuge to fĳind the results of these crimes – dead bodies, mutilated victims and looted and burnt property. 30. As part of the campaign of terror and punishment the AFRC/RUF routinely captured and abducted members of the civilian population. Captured women and girls were raped; many of them were abducted and used as sex slaves and as forced labour. Some of these women and girls were held captive for years. Men and boys who were abducted were also used as forced labour; some of them were also held captive for years. Many abducted boys and girls were given combat training and used in active fĳighting. AFRC/RUF also physically mutilated men, women and children, including amputating their hands or feet and carving “AFRC” and “RUF” on their bodies.

COUNTS 1 – 2: TERRORIZING THE CIVILIAN POPULATION AND COLLECTIVE PUNISHMENTS 31. Members of the AFRC/RUF subordinate to and/or acting in concert with BRIMA BAZZY KAMARA committed the crimes set forth below in paragraphs 32 through 57 and charged in Counts 3 through 13, as part of a campaign to terrorize the civilian population of the Republic of Sierra Leone, and did terrorize that population. The AFRC/RUF also committed the crimes to punish the civilian population for allegedly supporting the elected government of President Ahmed Tejan Kabbah and factions aligned with that government, or for failing to provide sufffĳi- cient support to the AFRC/RUF. By his acts or omissions in relation, but not limited to these events, BRIMA BAZZY KAMARA, pursuant to Article 6.1. and, or alternatively, Article 6.3. of the Statute, is individually criminally responsible for the crimes alleged below: Count 1: Acts of Terrorism, a VIOLATION OF ARTICLE 3 COMMON TO THE GENEVA CONVENTIONS AND OF ADDITIONAL PROTOCOL II, punishable under Article 3.d. of the Statute; 20 part i

And: Count 2: Collective Punishments, a VIOLATION OF ARTICLE 3 COMMON TO THE GENEVA CONVENTIONS AND OF ADDITIONAL PROTOCOL II, punishable under Article 3.b. of the Statute.

COUNTS 3 – 5: UNLAWFUL KILLINGS 32. Victims were routinely shot, hacked to death and burned to death. Unlawful killings included, but were not limited to, the following: Bo District 33. Between 1 June 1997 and 30 June 1997, AFRC/RUF attacked Tikonko, Telu, Sembehun, Gerihun and Mamboma, unlawfully killing an unknown number of civilians; Kenema District 34. Between 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; Kono District 35. About 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; Kailahun District 36. Between about mid February 1998 and 30 June 1998, in locations including Kailahun town, members of AFRC/RUF unlawfully killed an unknown number of civilians; Koinadugu District 37. Between about 14 February 1998 and 30 September 1998, in several locations including Heremakono, Kabala, Kumala (or Kamalu), Kurubonla, Katombo, Koinadugu, Fadugu and Kamadugu, members of the AFRC/RUF unlawfully killed an unknown number of civilians; Bombali District 38. Between about 1 May 1998 and 31 July 1998, in locations including Karina, members of AFRC/RUF unlawfully killed an unknown number of civilians; Freetown 39. Between 6 January 1999 and 31 January 1999, AFRC/RUF conducted armed attacks throughout the city of Freetown. These attacks included large scale unlawful killings of civilian men, women and children at locations throughout the city, indictments 21 including the State House, Parliament building, Connaught Hospital, and the Kissy, Fourah Bay, Upgun, Calaba Town and Tower Hill areas of the city. By his acts or omissions in relation, but not limited to these events, BRIMA BAZZY KAMARA, pursuant to Article 6.1. and, or alternatively, Article 6.3. of the Statute, is individually criminally responsible for the crimes alleged below: Count 3: Extermination, a CRIME AGAINST HUMANITY, punishable under Article 2.b. of the Statute; In addition, or in the alternative: Count 4: Murder, a CRIME AGAINST HUMANITY, punishable under Article 2.a. of the Statute; In addition, or in the alternative: Count 5: 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.

COUNTS 6 – 8: SEXUAL VIOLENCE 40. Widespread sexual violence committed against civilian women and girls included brutal rapes, often by multiple rapists. Acts of sexual violence included, but were not limited to, the following: Kono District 41. Between about 14 February 1998 and 30 June 1998, members of AFRC/RUF raped hundreds of women and girls at various locations throughout the 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. An unknown number of women and girls were abducted from various locations within the District and used as sex slaves; Koinadugu District 42. Between about 14 February 1998 and 30 September 1998, members of AFRC/ RUF raped an unknown number of women and girls in locations such as Kabala, Koinadugu, Heremakono and Fadugu. In addition an unknown number of women and girls were abducted and used as sex slaves; Bombali District 43. Between about 1 May 1998 and 31 July 1998, members of AFRC/RUF raped an unknown number of women and girls in locations such as Mandaha. In addition, an unknown number of abducted women and girls were used as sex slaves; 22 part i

Kailahun District 44. At all times relevant to this 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, brought to AFRC/RUF camps in the District, and used as sex slaves; Freetown 45. Between 6 January 1999 and 31 January 1999, members of AFRC/RUF raped hundreds of women and girls throughout the Freetown area, and abducted hundreds of women and girls and used them as sex slaves. By his acts or omissions in relation, but not limited to these events, BRIMA BAZZY KAMARA, pursuant to Article 6.1. and, or alternatively, Article 6.3. of the Statute, is individually criminally responsible for the crimes alleged below: Count 6: Rape, a CRIME AGAINST HUMANITY, punishable under Article 2.g. of the Statute; And: Count 7: Sexual slavery and any other form of sexual violence, a CRIME AGAINST HUMANITY, punishable under Article 2.g. of the Statute; In addition, or in the alternative: Count 8: Outrages upon personal dignity, a VIOLATION OF ARTICLE 3 COMMON TO THE GENEVA CONVENTIONS AND OF ADDITIONAL PROTOCOL II, punishable under Article 3.e. of the Statute.

COUNTS 9 – 10: PHYSICAL VIOLENCE 46. Widespread physical violence, including mutilations, was committed against civilians. Victims were often brought to a central location where mutilations were carried out. These acts of physical violence included, but were not limited to, the following: Kono District 47. Between 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 offf limbs and carving “AFRC” and “RUF” on the bodies of the civilians; Koinadugu District 48. Between 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 offf limbs and carving “AFRC” on the chests and foreheads of the civilians; indictments 23

Freetown 49. Between 6 January 1999 and 31 January 1999, AFRC/RUF mutilated an unknown number of civilian men, women and children in various areas of Freetown, including the northern and eastern areas of the city, and the Kissy area, including the Kissy mental hospital. The mutilations included cutting offf limbs. By his acts or omissions in relation, but not limited to these events, BRIMA BAZZY KAMARA, pursuant to Article 6.1. and, or alternatively, Article 6.3. of the Statute, is individually criminally responsible for the crimes alleged below: Count 9: Violence to life, health and physical or mental well-being of persons, in particular mutilation, a VIOLATION OF ARTICLE 3 COMMON TO THE GENEVA CONVENTIONS AND OF ADDITIONAL PROTOCOL II, punishable under Article 3.a. of the Statute; In addition, or in the alternative: Count 10: Other inhumane acts, a CRIME AGAINST HUMANITY, punishable under Article 2.i. of the Statute.

COUNT 11: USE OF CHILD SOLDIERS 50. At 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 fĳirst abducted, then trained in AFRC/RUF camps in various locations throughout the country, and thereafter used as fĳighters. By his acts or omissions in relation, but not limited to these events, BRIMA BAZZY KAMARA, pursuant to Article 6.1. and, or alternatively, Article 6.3. of the Statute, is individually criminally responsible for the crimes alleged below: Count 11: Conscripting or enlisting children under the age of 15 years into armed forces or groups, or using them to participate actively in hostilities, an OTHER SERIOUS VIOLATION OF INTERNATIONAL HUMANITARIAN LAW, punishable under Article 4.c. of the Statute.

Kono District 53. Between about 14 February 1998 and 30 June 1998, AFRC/RUF forces abducted hundreds of civilian men, women and children, and took them to various locations outside the District, or to locations within the District such as AFRC/ RUF camps, Tombodu, Koidu, Wondedu, Tomendeh. At these locations the civilians were used as forced labour, including domestic labour and as diamond miners in the Tombodu area; Koinadugu District 54. Between about 14 February 1998 and September 1998, at various locations including Heremakono, Kabala, Kumala (or Kamalu), Koinadugu, Kamadugu and Fadugu, members of the AFRC/RUF abducted an unknown number of men, women and children and used them as forced labour; Bombali District 55. Between about 1 May 1998 and 31 July 1998, in Bombali District, AFRC/RUF abducted an unknown number of civilians and used them as forced labour; Kailahun District 56. At all times relevant to this Indictment, captured civilian men, women and children were brought to various locations within the District and used as forced labour; Freetown 57. Between 6 January 1999 and 31 January 1999, in particular as the AFRC/RUF were being driven out of Freetown, the AFRC/RUF abducted hundreds of civilians, including a large number of children, from various areas within Freetown, including Peacock Farm and Calaba Town. These abducted civilians were used as forced labour. By his acts or omissions in relation, but not limited to these events, BRIMA BAZZY KAMARA, pursuant to Article 6.1. and, or alternatively, Article 6.3. of the Statute, is individually criminally responsible for the crimes alleged below: Count 12: Enslavement, a CRIME AGAINST HUMANITY, punishable under Article 2.c. of the Statute.

Koinadugu District 60. Between about 14 February 1998 and 30 September 1998, AFRC/RUF forces engaged in widespread looting and burning of civilian homes in various locations in the District, including Heremakono, Kabala, Kamadugu and Fadugu; Kono District 61. Between about 14 February 1998 and 30 June 1998, AFRC/RUF engaged in widespread looting and burning in various locations in the District, including Tombodu, Foindu and Yardu Sando, where virtually every home in the village was looted and burned; Bombali District 62. Between 1 March 1998 and 30 June 1998, AFRC/RUF forces burned an unknown number of civilian buildings in locations such as Karina; Freetown 63. Between 6 January 1999 and 31 January 1999, AFRC/RUF forces engaged in widespread looting and burning throughout Freetown. The majority of houses that were destroyed were in the areas of Kissy and eastern Freetown; other locations included the Fourah Bay, Upgun, State House and Pademba Road areas of the city. By his acts or omissions in relation, but not limited to these events, BRIMA BAZZY KAMARA, pursuant to Article 6.1. and, or alternatively, Article 6.3. of the Statute, is individually criminally responsible for the crimes alleged below: Count 13: Pillage, a VIOLATION OF ARTICLE 3 COMMON TO THE GENEVA CONVENTIONS AND OF ADDITIONAL PROTOCOL II, punishable under Article 3.f. of the Statute.

INTERNATIONAL HUMANITARIAN LAW, punishable under Article 4.b. of the Statute; In addition, or in the alternative: Count 15: For the unlawful killings, Murder, a CRIME AGAINST HUMANITY, punishable under Article 2.a. of the Statute; In addition, or in the alternative: Count 16: 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; In addition, or in the alternative: Count 17: For the abductions and holding as hostage, Taking of hostages, a VIOLATION OF ARTICLE 3 COMMON TO THE GENEVA CONVENTIONS AND OF ADDITIONAL PROTOCOL II, punishable under Article 3.c. of the Statute. Dated this 24th day of May 2003 Freetown, Sierra Leone For David M. Crane, The Prosecutor

Desmond de Silva, Q.C. Deputy Prosecutor THE SPECIAL COURT FOR SIERRA LEONE CASE NO. SCSL – 03 – 13 – I THE PROSECUTOR

Against SANTIGIE BORBOR KANU, also known as 55 also known as FIVE-FIVE also known as SANTIGIE KHANU also known as SANTIGIE KANU also known as S. B. KHANU also known as S.B. KANU also known as SANTIGIE BOBSON KANU also known as BORBOR SANTIGIE KANU

INDICTMENT The Prosecutor, Special Court for Sierra Leone, under Article 15 of the Statute of the Special Court for Sierra Leone (the Statute) charges: SANTIGIE BORBOR KANU, aka 55 aka FIVE-FIVE aka SANTIGIE KHANU aka SANTIGIE KANU aka S.B. KHANU aka S.B. KANU aka SANTIGIE BOBSON KANU aka BORBOR SANTIGIE KANU with CRIMES AGAINST HUMANITY, VIOLATIONS OF ARTICLE 3 COMMON TO THE GENEVA CONVENTIONS AND OF ADDITIONAL PROTOCOL II and OTHER SERIOUS VIOLATIONS OF INTERNATIONAL HUMANITARIAN LAW, in violation of Articles 2, 3 and 4 of the Statute as set forth below:

THE ACCUSED 1. SANTIGIE BORBOR KHANU aka 55 aka FIVE-FIVE aka SANTIGIE KHANU aka SANTIGIE KANU aka S. B. KHANU aka S.B. KANU aka SANTIGIE BOBSON KANU aka BORBOR SANTIGIE KANU (the ACCUSED) was born 5 March 1965 or 15 March 1965 in Maforki Chiefdom, Port Loko District, Republic of Sierra Leone, or in Freetown in the Western Area of the Republic of Sierra Leone. 2. The ACCUSED joined the Sierra Leone Army (SLA) on 27 November 1990 and rose to the rank of Sergeant.

4. A nexus existed between the armed conflict and all acts or omissions charged herein as Violations of Article 3 common to the Geneva Conventions and of Additional Protocol II and as Other Serious Violations of International Humanitarian Law. 5. The organized armed group that became known as the RUF, led by FODAY SAYBANA SANKOH aka POPAY aka PAPA aka PA, was founded about 1988 or 1989 in Libya. The RUF, under the leadership of FODAY SAYBANA SANKOH, began organized armed operations in Sierra Leone in March 1991. During the ensuing armed conflict, the RUF forces were also referred to as “RUF,” “rebels” and “People’s Army.” 6. The CDF was comprised of Sierra Leonean traditional hunters, including the Kamajors, Gbethis, Kapras, Tamaboros and Donsos. The CDF fought against the RUF and AFRC. 7. On 30 November 1996, in Abidjan, Ivory Coast, FODAY SAYBANA SANKOH and Ahmed Tejan Kabbah, President of the Republic of Sierra Leone, signed a peace agreement which brought a temporary cessation to active hostilities. Thereafter, the active hostilities recommenced. 8. The AFRC was founded by members of the Armed Forces of Sierra Leone who seized power from the elected government of the Republic of Sierra Leone via a coup d’état on 25 May 1997. Soldiers of the Sierra Leone Army (SLA) comprised the majority of the AFRC membership. On that date JOHNNY PAUL KOROMA aka JPK became the leader and Chairman of the AFRC. The AFRC forces were also referred to as “Junta,” “soldiers,” “SLA,” and “ex-SLA.” 9. Shortly after the AFRC seized power, at the invitation of JOHNNY PAUL KOROMA, and upon the order of FODAY SAYBANA SANKOH, leader of the RUF, the RUF joined with the AFRC. The AFRC and RUF acted jointly thereafter. The AFRC/RUF Junta forces (Junta) were also referred to as “Junta,” “rebels,” “soldiers,” “SLA,” “ex-SLA” and “People’s Army.” 10. After the 25 May 1997 coup d’état, a governing body, the Supreme Council, was created within the Junta. The Supreme Council was the sole executive and legislative authority within Sierra Leone during the junta. The governing body included leaders of both the AFRC and RUF. 11. The Junta was forced from power by forces acting on behalf of the ousted government of President Kabbah about 14 February 1998. President Kabbah’s government returned in March 1998. After the Junta was removed from power the AFRC/RUF alliance continued. 12. On 7 July 1999, in Lomé, Togo, FODAY SAYBANA SANKOH and Ahmed Tejan Kabbah, President of the Republic of Sierra Leone, signed a peace agreement. However, active hostilities continued. indictments 29

13. The ACCUSED and all members of the organized armed factions engaged in fĳighting within Sierra Leone were required to abide by International Humanitarian Law and the laws and customs governing the conduct of armed conflicts, including the Geneva Conventions of 12 August 1949, and Additional Protocol II to the Geneva Conventions, to which the Republic of Sierra Leone acceded on 21 October 1986. 14. All offfences alleged herein were committed within the territory of Sierra Leone after 30 November 1996. 15. All acts and omissions charged herein as Crimes Against Humanity were committed as part of a widespread or systematic attack directed against the civilian population of Sierra Leone. 16. The words civilian or civilian population used in this Indictment refer to persons who took no active part in the hostilities, or who were no longer taking an active part in the hostilities.

INDIVIDUAL CRIMINAL RESPONSIBILITY 17. Paragraphs 1 through 16 are incorporated by reference. 18. At all times relevant to this Indictment, SANTIGIE BORBOR KANU was a senior member of the AFRC, Junta and AFRC/RUF forces. 19. The ACCUSED was a member of the group of 17 soldiers which staged the coup and ousted the government of President Kabbah. In addition, the ACCUSED was a member of the Junta governing body, the AFRC Supreme Council. 20. Between mid February 1998 and 30 April 1998, SANTIGIE BORBOR KANU was a senior commander of AFRC/RUF forces in Kono District. In addition, the ACCUSED 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. The ACCUSED along with ALEX TAMBA BRIMA and BRIMA BAZZY KAMARA, was also one of the three commanders of AFRC/RUF forces during the attack on Freetown on 6 January 1999. 21. In the positions referred to in paragraphs 18 through 20, SANTIGIE BORBOR KANU, individually, or in concert with JOHNNY PAUL KOROMA aka JPK, FODAY SAYBANA SANKOH, ISSA HASSAN SESAY aka ISSA SESAY, SAM BOCKARIE aka MOSQUITO aka MASKITA, MORRIS KALLON aka BILAI KARIM, AUGUSTINE GBAO aka AUGUSTINE BAO, ALEX TAMBA BRIMA aka TAMBA ALEX BRIMA aka GULLIT, BRIMA BAZZY KAMARA aka IBRAHIM BAZZY KAMARA aka ALHAJI IBRAHIM KAMARA and/or other superiors in the AFRC, Junta and AFRC/ 30 part i

RUF forces, exercised authority, command and control over all subordinate members of the AFRC, Junta and AFRC/RUF forces. 22. At all times relevant to this Indictment, the ACCUSED, through his association with the RUF, acted in concert with CHARLES GHANKAY TAYLOR aka CHARLES MACARTHUR DAPKPANA TAYLOR. 23. The AFRC, including the ACCUSED, and the RUF 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. 24. 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. 25. SANTIGIE BORBOR KANU, by his acts or omissions, is 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 the ACCUSED planned, instigated, ordered, committed or in whose planning, preparation or execution the Accused otherwise aided and abetted, or which crimes were within a joint criminal enterprise in which the ACCUSED participated or were a reasonably foreseeable consequence of the joint criminal enterprise in which the ACCUSED participated. 26. In addition, or alternatively, pursuant to Article 6.3. of the Statute, SANTIGIE BORBOR KANU, while holding positions of superior responsibility and exercising efffective control over his subordinates, is individually criminally responsible for the crimes referred to in Articles 2, 3 and 4 of the Statute. The ACCUSED is responsible for the criminal acts of his subordinates in that he knew or had reason to know that the subordinate was about to commit such acts or had done so and the ACCUSED failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof. CHARGES 27. Paragraphs 17 through 26 are incorporated by reference. indictments 31

28. At all times relevant to this Indictment, members of the RUF, AFRC, Junta and/or AFRC/RUF forces (AFRC/RUF), subordinate to and/or acting in concert with SANTIGIE BORBOR KANU, conducted armed attacks throughout the territory of the Republic of Sierra Leone, including, but not limited, to Bo, Kono, Kenema, Koinadugu, Bombali and Kailahun Districts and Freetown. Targets of the armed attacks included civilians and humanitarian assistance personnel and peacekeepers assigned to the United Nations Mission in Sierra Leone (UNAMSIL), which had been created by United Nations Security Council Resolution 1270 (1999). 29. These attacks were carried out primarily to terrorize the civilian population, but also were used to punish the population for failing to provide sufffĳicient support to the AFRC/RUF, or for allegedly providing support to the Kabbah government or to pro-government forces. The attacks included unlawful killings, physical and sexual violence against civilian men, women and children, abductions and looting and destruction of civilian property. Many civilians saw these crimes committed; others returned to their homes or places of refuge to fĳind the results of these crimes – dead bodies, mutilated victims and looted and burnt property. 30. As part of the campaign of terror and punishment the AFRC/RUF routinely captured and abducted members of the civilian population. Captured women and girls were raped; many of them were abducted and used as sex slaves and as forced labour. Some of these women and girls were held captive for years. Men and boys who were abducted were also used as forced labour; some of them were also held captive for years. Many abducted boys and girls were given combat training and used in active fĳighting. AFRC/RUF also physically mutilated men, women and children, including amputating their hands or feet and carving “AFRC” and “RUF” on their bodies.

COUNTS 1 – 2: TERRORIZING THE CIVILIAN POPULATION AND COLLECTIVE PUNISHMENTS 31. Members of the AFRC/RUF subordinate to and/or acting in concert with SANTIGIE BORBOR KANU committed the crimes set forth below in paragraphs 32 through 57 and charged in Counts 3 through 13, as part of a campaign to terrorize the civilian population of the Republic of Sierra Leone, and did terrorize that population. The AFRC/RUF also committed the crimes to punish the civilian population for allegedly supporting the elected government of President Ahmed Tejan Kabbah and factions aligned with that government, or for failing to provide sufffĳicient support to the AFRC/RUF. By his acts or omissions in relation, but not limited to these events, SANTIGIE BORBOR KANU, pursuant to Article 6.1. and, or alternatively, Article 6.3. of the Statute, is individually criminally responsible for the crimes alleged below: 32 part i

Count 1: Acts of Terrorism, a VIOLATION OF ARTICLE 3 COMMON TO THE GENEVA CONVENTIONS AND OF ADDITIONAL PROTOCOL II, punishable under Article 3.d. of the Statute; And: Count 2: Collective Punishments, a VIOLATION OF ARTICLE 3 COMMON TO THE GENEVA CONVENTIONS AND OF ADDITIONAL PROTOCOL II, punishable under Article 3.b. of the Statute.

Freetown 39. Between 6 January 1999 and 31 January 1999, AFRC/RUF conducted armed attacks throughout the city of Freetown. These attacks included large scale unlawful killings of civilian men, women and children at locations throughout the city, including the State House, Parliament building, Connaught Hospital, and the Kissy, Fourah Bay, Upgun, Calaba Town and Tower Hill areas of the city. By his acts or omissions in relation, but not limited to these events, SANTIGIE BORBOR KANU, pursuant to Article 6.1. and, or alternatively, Article 6.3. of the Statute, is individually criminally responsible for the crimes alleged below: Count 3: Extermination, a CRIME AGAINST HUMANITY, punishable under Article 2.b. of the Statute; In addition, or in the alternative: Count 4: Murder, a CRIME AGAINST HUMANITY, punishable under Article 2.a. of the Statute; In addition, or in the alternative: Count 5: 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.

COUNTS 6 – 8: SEXUAL VIOLENCE 40. Widespread sexual violence committed against civilian women and girls included brutal rapes, often by multiple rapists. Acts of sexual violence included, but were not limited to, the following: Kono District 41. Between about 14 February 1998 and 30 June 1998, members of AFRC/RUF raped hundreds of women and girls at various locations throughout the 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. An unknown number of women and girls were abducted from various locations within the District and used as sex slaves; Koinadugu District 42. Between early 1998 and 30 September 1998, members of AFRC/RUF raped an unknown number of women and girls in locations such as Kabala, Koinadugu, Heremakono and Fadugu. In addition an unknown number of women and girls were abducted and used as sex slaves; 34 part i

Bombali District 43. Between about 1 May 1998 and 31 July 1998, members of AFRC/RUF raped an unknown number of women and girls in locations such as Mandaha. In addition, an unknown number of abducted women and girls were used as sex slaves; Kailahun District 44. At all times relevant to this 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, brought to AFRC/RUF camps in the District, and used as sex slaves; Freetown 45. Between 6 January 1999 and 31 January 1999, members of AFRC/RUF raped hundreds of women and girls throughout the Freetown area, and abducted hundreds of women and girls and used them as sex slaves. By his acts or omissions in relation, but not limited to these events, SANTIGIE BORBOR KANU, pursuant to Article 6.1. and, or alternatively, Article 6.3. of the Statute, is individually criminally responsible for the crimes alleged below: Count 6: Rape, a CRIME AGAINST HUMANITY, punishable under Article 2.g. of the Statute; And: Count 7: Sexual slavery and any other form of sexual violence, a CRIME AGAINST HUMANITY, punishable under Article 2.g. of the Statute; In addition, or in the alternative: Count 8: Outrages upon personal dignity, a VIOLATION OF ARTICLE 3 COMMON TO THE GENEVA CONVENTIONS AND OF ADDITIONAL PROTOCOL II, punishable under Article 3.e. of the Statute.

Koinadugu District 48. Between 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 offf limbs and carving “AFRC” on the chests and foreheads of the civilians;

Freetown 49. Between 6 January 1999 and 31 January 1999, AFRC/RUF mutilated an unknown number of civilian men, women and children in various areas of Freetown, including the northern and eastern areas of the city, and the Kissy area, including the Kissy mental hospital. The mutilations included cutting offf limbs. By his acts or omissions in relation, but not limited to these events, SANTIGIE BORBOR KANU, pursuant to Article 6.1. and, or alternatively, Article 6.3. of the Statute, is individually criminally responsible for the crimes alleged below: Count 9: Violence to life, health and physical or mental well-being of persons, in particular mutilation, a VIOLATION OF ARTICLE 3 COMMON TO THE GENEVA CONVENTIONS AND OF ADDITIONAL PROTOCOL II, punishable under Article 3.a. of the Statute; In addition, or in the alternative: Count 10: Other inhumane acts, a CRIME AGAINST HUMANITY, punishable under Article 2.i. of the Statute.

COUNT 11: USE OF CHILD SOLDIERS 50. At 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 fĳirst abducted, then trained in AFRC/RUF camps in various locations throughout the country, and thereafter used as fĳighters. By his acts or omissions in relation, but not limited to these events, SANTIGIE BORBOR KANU, pursuant to Article 6.1. and, or alternatively, Article 6.3. of the Statute, is individually criminally responsible for the crimes alleged below: Count 11: Conscripting or enlisting children under the age of 15 years into armed forces or groups, or using them to participate actively in hostilities, an OTHER SERIOUS VIOLATION OF INTERNATIONAL HUMANITARIAN LAW, punishable under Article 4.c. of the Statute. 36 part i

COUNT 12: ABDUCTIONS AND FORCED LABOUR 51. 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. The abductions and forced labour included, but were not limited to, the following: Kenema District 52. Between about 1 August 1997 and about 31 January 1998, AFRC/RUF forced an unknown number of civilians living in the District to mine for diamonds at Cyborg Pit in Tongo Field; Kono District 53. Between about 14 February 1998 and 30 June 1998, AFRC/RUF forces abducted hundreds of civilian men, women and children, and took them to various locations outside the District, or to locations within the District such as AFRC/RUF camps, Tombodu, Koidu, Wondedu, Tomendeh. At these locations the civilians were used as forced labour, including domestic labour and as diamond miners in the Tombodu area; Koinadugu District 54. Between about 14 February 1998 and September 1998, at various locations including Heremakono, Kabala, Kumala (or Kamalu), Koinadugu, Kamadugu and Fadugu, members of the AFRC/RUF abducted an unknown number of men, women and children and used them as forced labour; Bombali District 55. Between about 1 May 1998 and 31 July 1998, in Bombali District, AFRC/RUF abducted an unknown number of civilians and used them as forced labour; Kailahun District 56. At all times relevant to this Indictment, captured civilian men, women and children were brought to various locations within the District and used as forced labour; Freetown 57. Between 6 January 1999 and 31 January 1999, in particular as the AFRC/RUF were being driven out of Freetown, the AFRC/RUF abducted hundreds of civilians, including a large number of children, from various areas within Freetown, including Peacock Farm and Calaba Town. These abducted civilians were used as forced labour. By his acts or omissions in relation, but not limited to these events, SANTIGIE BORBOR KANU, pursuant to Article 6.1. and, or alternatively, Article 6.3. of the Statute, is individually criminally responsible for the crimes alleged below: indictments 37

Count 12: Enslavement, a CRIME AGAINST HUMANITY, punishable under Article 2.c. of the Statute.

COUNT 13: LOOTING AND BURNING 58. At all times relevant to this Indictment, AFRC/RUF engaged in widespread unlawful taking and destruction by burning of civilian property. This looting and burning included, but was not limited to, the following: Bo District 59. Between 1 June 1997 and 30 June 1997, AFRC/RUF forces looted and burned an unknown number of civilian houses in Telu, Sembehun, Mamboma and Tikonko; Koinadugu District 60. Between about 14 February 1998 and 30 September 1998, AFRC/RUF forces engaged in widespread looting and burning of civilian homes in various locations in the District, including Heremakono, Kabala, Kamadugu and Fadugu; Kono District 61. Between about 14 February 1998 and 30 June 1998, AFRC/RUF engaged in widespread looting and burning in various locations in the District, including Tombodu, Foindu and Yardu Sando, where virtually every home in the village was looted and burned; Bombali District 62. Between 1 March 1998 and 30 June 1998, AFRC/RUF forces burned an unknown number of civilian buildings in locations such as Karina; Freetown 63. Between 6 January 1999 and 31 January 1999, AFRC/RUF forces engaged in widespread looting and burning throughout Freetown. The majority of houses that were destroyed were in the areas of Kissy and eastern Freetown; other locations included the Fourah Bay, Upgun, State House and Pademba Road areas of the city. By his acts or omissions in relation, but not limited to these events, SANTIGIE BORBOR KANU, pursuant to Article 6.1. and, or alternatively, Article 6.3. of the Statute, is individually criminally responsible for the crimes alleged below: Count 13: Pillage, a VIOLATION OF ARTICLE 3 COMMON TO THE GENEVA CONVENTIONS AND OF ADDITIONAL PROTOCOL II, punishable under Article 3.f. of the Statute. 38 part i

COUNTS 14 – 17: ATTACKS ON UNAMSIL PERSONNEL 64. Between about 15 April 2000 and about 15 September 2000, AFRC/RUF engaged in widespread attacks against UNAMSIL peacekeepers and humanitarian assistance workers within the Republic of Sierra Leone, including, but not limited to locations within Bombali, Kailahun, Kambia, Port Loko, and Kono Districts. These attacks included unlawful killing of UNAMSIL peacekeepers, and abducting hundreds of peacekeepers and humanitarian assistance workers who were then held hostage. By his acts or omissions in relation, but not limited to these events, SANTIGIE BORBOR KANU, pursuant to Article 6.1. and, or alternatively, Article 6.3. of the Statute, is individually criminally responsible for the crimes alleged below: Count 14: Intentionally directing attacks against personnel involved in a humanitarian assistance or peacekeeping mission, an OTHER SERIOUS VIOLATION OF INTERNATIONAL HUMANITARIAN LAW, punishable under Article 4.b. of the Statute; In addition, or in the alternative: Count 15: For the unlawful killings, Murder, a CRIME AGAINST HUMANITY, punishable under Article 2.a. of the Statute; In addition, or in the alternative: Count 16: 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; In addition, or in the alternative: Count 17: For the abductions and holding as hostage, Taking of hostages, a VIOLATION OF ARTICLE 3 COMMON TO THE GENEVA CONVENTIONS AND OF ADDITIONAL PROTOCOL II, punishable under Article 3.c. of the Statute. Dated this 15th day of September 2003 Freetown, Sierra Leone David M. Crane Prosecutor THE SPECIAL COURT FOR SIERRA LEONE CASE NO. SCSL – 2004-16-PT The PROSECUTOR Against ALEX TAMBA BRIMA also known as TAMBA ALEX BRIMA also known as GULLIT BRIMA BAZZY KAMARA also known as IBRAHIM BAZZY KAMARA also known as ALHAJI IBRAHIM KAMARA AND SANTIGIE BORBOR KANU also known as 55 also known as FIVE- FIVE also known as SANTIGIE KHANU also known as SANTIGIE KANU also known as S. B. KHANU also known as S.B. KANU also known as SANTIGIE BOBSON KANU also known as BORBOR SANTIGIE KANU

INDICTMENT The Prosecutor, Special Court for Sierra Leone, under Article 15 of the Statute of the Special Court for Sierra Leone (the Statute) charges: ALEX TAMBA BRIMA also known as (aka) TAMBA ALEX BRIMA aka GULLIT BRIMA BAZZY KAMARA aka IBRAHIM BAZZY KAMARA aka ALHAJI IBRAHIM KAMARA and SANTIGIE BORBOR KANU aka 55 aka FIVE-FIVE aka SANTIGIE KHANU aka SANTIGIE KANU aka S. B. KHANU aka S.B. KANU aka SANTIGIE BOBSON KANU aka BORBOR SANTIGIE KANU with CRIMES AGAINST HUMANITY, VIOLATIONS OF ARTICLE 3 COMMON TO THE GENEVA CONVENTIONS AND OF ADDITIONAL PROTOCOL II and OTHER SERIOUS VIOLATIONS OF INTERNATIONAL HUMANITARIAN LAW, in violation of Articles 2, 3 and 4 of the Statute as set forth below:

THE ACCUSED 1. ALEX TAMBA BRIMA aka TAMBA ALEX BRIMA aka GULLIT was born 23 November 1971 at Yaryah Village, Kono District, Republic of Sierra Leone. 40 part i

2. He joined the Sierra Leone Army (SLA) in April 1985 and rose to the rank of Stafff Sergeant. 3. BRIMA BAZZY KAMARA aka IBRAHIM BAZZY KAMARA aka ALHAJI IBRAHIM KAMARA was born on 7 May 1968 at Wilberforce Village in the Western Area in the Republic of Sierra Leone. 4. He joined the Sierra Leone Army (SLA) on 20 May 1991 and rose to the rank of Stafff Sergeant. 5. SANTIGIE BORBOR KANU aka 55 aka FIVE-FIVE aka SANTIGIE KHANU aka SANTIGIE KANU aka S. B. KHANU aka S.B. KANU aka SANTIGIE BOBSON KANU aka BORBOR SANTIGIE KANU was born in March 1965 in Maforki Chiefdom, Port Loko District, Republic of Sierra Leone, or in Freetown in the Western Area of the Republic of Sierra Leone. 6. He joined the Sierra Leone Army (SLA) on 27 November 1990 and rose to the rank of Sergeant.

GENERAL ALLEGATIONS 7. At all times relevant to this Indictment, a state of armed conflict existed within Sierra Leone. For the purposes of this Indictment, organized armed factions involved in this conflict included the Revolutionary United Front (RUF), the Civil Defence Forces (CDF) and the Armed Forces Revolutionary Council (AFRC). 8. A nexus existed between the armed conflict and all acts or omissions charged herein as Violations of Article 3 common to the Geneva Conventions and of Additional Protocol II and as Other Serious Violations of International Humanitar- ian Law. 9. The organized armed group that became known as the RUF, led by FODAY SAYBANA SANKOH aka POPAY aka PAPA aka PA, was founded about 1988 or 1989 in Libya. The RUF, under the leadership of FODAY SAYBANA SANKOH, began organized armed operations in Sierra Leone in March 1991. During the ensuing armed conflict, the RUF forces were also referred to as “RUF,” “rebels” and “People’s Army.” 10. The CDF was comprised of Sierra Leonean traditional hunters, including the Kamajors, Gbethis, Kapras, Tamaboros and Donsos. The CDF fought against the RUF and AFRC. 11. On 30 November 1996, in Abidjan, Ivory Coast, FODAY SAYBANA SANKOH and Ahmed Tejan Kabbah, President of the Republic of Sierra Leone, signed a peace agreement which brought a temporary cessation to active hostilities. Thereafter, the active hostilities recommenced. indictments 41

12. The AFRC was founded by members of the Armed Forces of Sierra Leone who seized power from the elected government of the Republic of Sierra Leone via a coup d’état on 25 May 1997. Soldiers of the Sierra Leone Army (SLA) comprised the majority of the AFRC membership. On that date Johnny Paul Koroma aka JPK became the leader and Chairman of the AFRC. The AFRC forces were also referred to as “Junta,” “soldiers,” “SLA,” and “ex-SLA.” 13. Shortly after the AFRC seized power, at the invitation of Johnny Paul Koroma, and upon the order of FODAY SAYBANA SANKOH, leader of the RUF, the RUF joined with the AFRC. The AFRC and RUF acted jointly thereafter. The AFRC/RUF Junta forces (Junta) were also referred to as “Junta,” “rebels,” “soldiers,” “SLA,” “ex-SLA” and “People’s Army.” 14. After the 25 May 1997 coup d’état, a governing body, the Supreme Council, was created within the Junta. The Supreme Council was the sole executive and legislative authority within Sierra Leone during the junta. The governing body included leaders of both the AFRC and RUF. 15. The Junta was forced from power by forces acting on behalf of the ousted government of President Kabbah about 14 February 1998. President Kabbah’s government returned in March 1998. After the Junta was removed from power the AFRC/RUF alliance continued. 16. On 7 July 1999, in Lomé, Togo, FODAY SAYBANA SANKOH and Ahmed Tejan Kabbah, President of the Republic of Sierra Leone, signed a peace agreement. However, active hostilities continued. 17. ALEX TAMBA BRIMA, BRIMA BAZZY KAMARA, SANTIGIE BORBOR KANU and all members of the organized armed factions engaged in fĳighting within Sierra Leone were required to abide by International Humanitarian Law and the laws and customs governing the conduct of armed conflicts, including the Geneva Conventions of 12 August 1949, and Additional Protocol II to the Geneva Conventions, to which the Republic of Sierra Leone acceded on 21 October 1986. 18. All offfences alleged herein were committed within the territory of Sierra Leone after 30 November 1996. 19. All acts and omissions charged herein as Crimes Against Humanity were committed as part of a widespread or systematic attack directed against the civilian population of Sierra Leone. 20. The words civilian or civilian population used in this Indictment refer to persons who took no active part in the hostilities, or who were no longer taking an active part in the hostilities. 42 part i

INDIVIDUAL CRIMINAL RESPONSIBILITY 21. Paragraphs 1 through 20 are incorporated by reference. 22. At all times relevant to this Indictment, ALEX TAMBA BRIMA was a senior member of the AFRC, Junta and AFRC/RUF forces. 23. ALEX TAMBA BRIMA was a member of the group which staged the coup and ousted the government of President Kabbah. Johnny Paul Koroma, Chairman and leader of the AFRC, appointed ALEX TAMBA BRIMA a Public Liaison Offfĳicer (PLO) within the AFRC. In addition, ALEX TAMBA BRIMA was a member of the Junta governing body. 24. Between mid February 1998 and about 30 April 1998, ALEX TAMBA BRIMA was in direct command of AFRC/RUF forces in the Kono District. In addition, ALEX TAMBA 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. As of about 22 December 1998, ALEX TAMBA BRIMA was in command of AFRC/RUF forces which attacked Freetown on 6 January 1999. 25. At all times relevant to this Indictment, BRIMA BAZZY KAMARA was a senior member of the AFRC, Junta and AFRC/RUF forces. 26. BRIMA BAZZY KAMARA was a member of the group which staged the coup and ousted the government of President Kabbah. JOHNNY PAUL KOROMA, Chairman and leader of the AFRC, appointed BRIMA BAZZY KAMARA a Public Liaison Offfĳicer (PLO) within the AFRC. In addition, BRIMA BAZZY KAMARA was a member of the Junta governing body. 27. Between about mid-February 1998 and 30 April 1998, BRIMA BAZZY KAMARA was a commander of AFRC/RUF forces based in Kono District. In addition, BRIMA BAZZY KAMARA 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. BRIMA BAZZY KAMARA was a commander of AFRC/RUF forces which attacked Freetown on 6 January 1999. 28. At all times relevant to this Indictment, SANTIGIE BORBOR KANU was a senior member of the AFRC, Junta and AFRC/RUF forces. 29. SANTIGIE BORBOR KANU was a member of the group of 17 soldiers which staged the coup and ousted the government of President Kabbah. In addition, SANTIGIE BORBOR KANU was a member of the Junta governing body, the AFRC Supreme Council. indictments 43

30. Between mid February 1998 and 30 April 1998, SANTIGIE BORBOR KANU was a senior commander of 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, including, but not limited to, attacks on civilians in Koinadugu and Bombali Districts between about mid February 1998 and 31 December 1998. SANTIGIE BORBOR KANU, along with ALEX TAMBA BRIMA and BRIMA BAZZY KAMARA, was also one of three commanders of AFRC/RUF forces during the attack on Freetown on 6 January 1999. 31. In their respective positions referred to above, ALEX TAMBA BRIMA, BRIMA BAZZY KAMARA and SANTIGIE BORBOR KANU, individually, or in concert with each other, JOHNNY PAUL KOROMA aka JPK, FODAY SAYBANA SANKOH, SAM BOCKARIE aka MOSQUITO aka MASKITA, ISSA HASSAN SESAY aka ISSA SESAY, MORRIS KALLON aka BILAI KARIM, AUGUSTINE GBAO aka AUGUSTINE BAO and/or other superiors in the AFRC, Junta and AFRC/RUF forces, exercised authority, command and control over all subordinate members of the AFRC, Junta and AFRC/RUF forces. 32. At all times relevant to this Indictment, ALEX TAMBA BRIMA, BRIMA BAZZY KAMARA and SANTIGIE BORBOR KANU, through their association with the RUF, acted in concert with CHARLES GHANKAY TAYLOR aka CHARLES MACARTHUR DAPKPANA TAYLOR. 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. 35. ALEX TAMBA BRIMA, BRIMA BAZZY KAMARA and SANTIGIE BORBOR KANU, 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 44 part i the Statute as alleged in this Indictment, which crimes each of them planned, instigated, ordered, committed or in whose planning, preparation or execution each Accused otherwise aided and abetted, or which crimes were within a joint criminal enterprise in which each Accused participated or were a reasonably foreseeable consequence of the joint criminal enterprise in which each Accused participated. 36. In addition, or alternatively, pursuant to Article 6.3. of the Statute, ALEX TAMBA BRIMA, BRIMA BAZZY KAMARA and SANTIGIE BORBOR KANU, while holding positions of superior responsibility and exercising efffective control over their subordinates, are each individually criminally responsible for the crimes referred to in Articles 2, 3 and 4 of the Statute. Each Accused is responsible for the criminal acts of his subordinates in that he knew or had reason to know that the subordinate was about to commit such acts or had done so and each Accused failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof.

CHARGES 37. Paragraphs 21 through 36 are incorporated by reference. 38. At all times relevant to this Indictment, members of the RUF, AFRC, Junta and/or AFRC/RUF forces (AFRC/RUF), subordinate to and/or acting in concert with ALEX TAMBA BRIMA, BRIMA BAZZY KAMARA and SANTIGIE BORBOR KANU, conducted armed attacks throughout the territory of the Republic of Sierra Leone, including Bo, Kono, Kenema, Koinadugu, Bombali and Kailahun and Port Loko Districts and the city of Freetown and the Western Area. Targets of the armed attacks included civilians and humanitarian assistance personnel and peacekeepers assigned to the United Nations Mission in Sierra Leone (UNAMSIL), which had been created by United Nations Security Council Resolution 1270 (1999). 39. These attacks were carried out primarily to terrorize the civilian population, but also were used to punish the population for failing to provide sufffĳicient support to the AFRC/RUF, or for allegedly providing support to the Kabbah government or to pro-government forces. The attacks included unlawful killings, physical and sexual violence against civilian men, women and children, abductions and looting and destruction of civilian property. Many civilians saw these crimes committed; others returned to their homes or places of refuge to fĳind the results of these crimes – dead bodies, mutilated victims and looted and burnt property. 40. As part of the campaign of terror and punishment the AFRC/RUF routinely captured and abducted members of the civilian population. Captured women and girls were raped; many of them were abducted and used as sex slaves and as forced indictments 45 labour. Some of these women and girls were held captive for years. Men and boys who were abducted were also used as forced labour; some of them were also held captive for years. Many abducted boys and girls were given combat training and used in active fĳighting. AFRC/RUF also physically mutilated men, women and children, including amputating their hands or feet and carving “AFRC” and “RUF” on their bodies.

COUNTS 1 – 2: TERRORIZING THE CIVILIAN POPULATION AND COLLECTIVE PUNISHMENTS 41. Members of the AFRC/RUF subordinate to and/or acting in concert with ALEX TAMBA BRIMA, BRIMA BAZZY KAMARA and SANTIGIE BORBOR KANU, committed the crimes set forth below in paragraphs 42 through 79 and charged in Counts 3 through 13, as part of a campaign to terrorize the civilian population of the Republic of Sierra Leone, and did terrorize that population. The AFRC/RUF also committed the crimes to punish the civilian population for allegedly supporting the elected government of President Ahmed Tejan Kabbah and factions aligned with that government, or for failing to provide sufffĳicient support to the AFRC/RUF. By their acts or omissions in relation to these events, ALEX TAMBA BRIMA, BRIMA BAZZY KAMARA and SANTIGIE BORBOR KANU, pursuant to Article 6.1. and, or alternatively, Article 6.3. of the Statute, are individually criminally responsible for the crimes alleged below: Count 1: Acts of Terrorism, a VIOLATION OF ARTICLE 3 COMMON TO THE GENEVA CONVENTIONS AND OF ADDITIONAL PROTOCOL II, punishable under Article 3.d. of the Statute; And: Count 2: Collective Punishments, a VIOLATION OF ARTICLE 3 COMMON TO THE GENEVA CONVENTIONS AND OF ADDITIONAL PROTOCOL II, punishable under Article 3.b. of the Statute.

COUNTS 3 – 5: UNLAWFUL KILLINGS 42. Victims were routinely shot, hacked to death and burned to death. Unlawful killings included the following: Bo District 43. Between 1 June 1997 and 30 June 1997, AFRC/RUF attacked Tikonko, Telu, Sembehun, Gerihun and Mamboma, unlawfully killing an unknown number of civilians; 46 part i

Kenema District 44. Between 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; Kono District 45. About 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; Kailahun District 46. Between about 14 February 1998 and 30 June 1998, in locations including Kailahun town, members of AFRC/RUF unlawfully killed an unknown number of civilians; Koinadugu District 47. Between 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; Bombali District 48. Between about 1 May 1998 and 30 November 1998, in several locations in Bombali District, including Bonyoyo (or Bornoya), Karina, Mafabu, Mateboi, Pendembu and Gbendembu, members of the AFRC/RUF unlawfully killed an unknown number of civilians; Freetown and the Western Area 49. Between 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; Port Loko 50. About 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; By their acts or omissions in relation to these events, ALEX TAMBA BRIMA, BRIMA BAZZY KAMARA and SANTIGIE BORBOR KANU, pursuant to Article 6.1. and, or alternatively, Article 6.3. of the Statute, are individually criminally responsible for the crimes alleged below: indictments 47

Count 3: Extermination, a CRIME AGAINST HUMANITY, punishable under Article 2.b. of the Statute; In addition, or in the alternative: Count 4: Murder, a CRIME AGAINST HUMANITY, punishable under Article 2.a. of the Statute; In addition, or in the alternative: Count 5: 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.

COUNTS 6 – 8: SEXUAL VIOLENCE 51. Widespread sexual violence committed against civilian women and girls included brutal rapes, often by multiple rapists. Acts of sexual violence included the following: Kono District 52. Between about 14 February 1998 and 30 June 1998, members of AFRC/RUF raped hundreds of women and girls at various locations throughout the 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. An unknown number of women and girls were abducted from various locations within the District and used as sex slaves; Koinadugu District 53. Between about 14 February 1998 and 30 September 1998, members of AFRC/ RUF raped an unknown number of women and girls in locations in Koinadugu District, such as Kabala, Koinadugu, Heremakono and Fadugu. In addition an unknown number of women and girls were abducted and used as sex slaves and subjected to other forms of sexual violence; Bombali District 54. Between about 1 May 1998 and 31 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). In addition, an unknown number of abducted women and girls were used as sex slaves and subjected to other forms of sexual violence; Kailahun District 55. At all times relevant to this Indictment, an unknown number of women and girls in various locations in the District were subjected to sexual violence. Many of 48 part i these victims were captured in other areas of the Republic of Sierra Leone, brought to AFRC/RUF camps in the District, and used as sex slaves; Freetown and the Western Area 56. Between 6 January 1999 and 28 February 1999, members of AFRC/RUF raped hundreds of women and girls throughout the City of Freetown and the Western Area, and abducted hundreds of women and girls and used them as sex slaves and subjected to other forms of sexual violence; Port Loko District 57. 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 subjected to other forms of sexual violence by members of the AFRC/ RUF; By their acts or omissions in relation to these events, ALEX TAMBA BRIMA, BRIMA BAZZY KAMARA and SANTIGIE BORBOR KANU, pursuant to Article 6.1. and, or alternatively, Article 6.3. of the Statute, are individually criminally responsible for the crimes alleged below: Count 6: Rape, a CRIME AGAINST HUMANITY, punishable under Article 2.g. of the Statute; And: Count 7: Sexual slavery and any other form of sexual violence, a CRIME AGAINST HUMANITY, punishable under Article 2.g. of the Statute; In addition, or in the alternative: Count 8: Outrages upon personal dignity, a VIOLATION OF ARTICLE 3 COMMON TO THE GENEVA CONVENTIONS AND OF ADDITIONAL PROTOCOL II, punishable under Article 3.e. of the Statute. COUNTS 9 – 10: PHYSICAL VIOLENCE 58. Widespread physical violence, including mutilations, was committed against civilians. Victims were often brought to a central location where mutilations were carried out. These acts of physical violence included the following: Kono District 59. Between 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 offf limbs and carving “AFRC” and “RUF” on the bodies of the civilians; indictments 49

Kenema District 60. Between about 25 May 1997 and about 19 February 1998, in locations in Kenema District, including Kenema town, members of AFRC/RUF carried out beatings and ill-treatment of a number of civilians who were in custody; Koinadugu District 61. Between 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 offf limbs and carving “AFRC” on the chests and foreheads of the civilians; Bombali District 62. Between about 1 May 1998 and 31 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 offf limbs; Freetown and the Western Area 63. Between 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 offf limbs; Port Loko 64. About the month of February 1999, the AFRC/RUF fled from Freetown to various locations in the Port Loko District. Between February 1999 and April 1999 members of the AFRC/RUF mutilated an unknown number of civilians in various locations in the District, including cutting offf limbs; By their acts or omissions in relation to these events, ALEX TAMBA BRIMA, BRIMA BAZZY KAMARA and SANTIGIE BORBOR KANU, pursuant to Article 6.1. and, or alternatively, Article 6.3. of the Statute, are individually criminally responsible for the crimes alleged below: Count 9: Violence to life, health and physical or mental well-being of persons, in particular mutilation, A VIOLATION OF ARTICLE 3 COMMON TO THE GENEVA CONVENTIONS AND OF ADDITIONAL PROTOCOL II, punishable under Article 3.a. of the Statute; In addition, or in the alternative: Count 10: Other inhumane acts, A CRIME AGAINST HUMANITY, punishable under Article 2.i. of the Statute. 50 part i

COUNT 11: USE OF CHILD SOLDIERS 65. At 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 fĳirst abducted, then trained in AFRC/RUF camps in various locations throughout the country, and thereafter used as fĳighters. By their acts or omissions in relation to these events, ALEX TAMBA BRIMA, BRIMA BAZZY KAMARA and SANTIGIE BORBOR KANU, pursuant to Article 6.1. and, or alternatively, Article 6.3. of the Statute, are individually criminally responsible for the crimes alleged below: Count 11: Conscripting or enlisting children under the age of 15 years into armed forces or groups, or using them to participate actively in hostilities, an OTHER SERIOUS VIOLATION OF INTERNATIONAL HUMANITARIAN LAW, punishable under Article 4.c. of the Statute.

COUNT 12: ABDUCTIONS AND FORCED LABOUR 66. 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. The abductions and forced labour included the following:

Kenema District 67. Between about 1 August 1997 and about 31 January 1998, AFRC/RUF forced an unknown number of civilians living in the District to mine for diamonds at Cyborg Pit in Tongo Field;

Kono District 68. Between about 14 February 1998 and 30 June 1998, AFRC/RUF forces abducted hundreds of civilian men, women and children, and took them to various locations outside the District, or to locations within the District such as AFRC/RUF camps, Tombodu, Koidu, Wondedu, Tomendeh. At these locations the civilians were used as forced labour, including domestic labour and as diamond miners in the Tombodu area;

Koinadugu District 69. Between about 14 February 1998 and 30 September 1998, at various locations including Heremakono, Kabala, Kumala (or Kamalu), Koinadugu, Kamadugu and Fadugu, members of the AFRC/RUF abducted an unknown number of men, women and children and used them as forced labour; indictments 51

Bombali District 70. Between about 1 May 1998 and 31 November 1998, in Bombali District, members of the AFRC/RUF abducted an unknown number of civilians and used them as forced labour; Kailahun District 71. At all times relevant to this Indictment, captured civilian men, women and children were brought to various locations within the District and used as forced labour; Freetown and the Western Area 72. Between 6 January 1999 and 28 February 1999, in particular as the AFRC/RUF were being driven out of Freetown and the Western Area, members of the AFRC/ RUF abducted hundreds of civilians, including a large number of children, from various areas in Freetown and the Western Area, including Peacock Farm, Kissy, and Calaba Town. These abducted civilians were used as forced labour; Port Loko 73. About the month of February 1999, the AFRC/RUF fled from Freetown to various locations in the Port Loko District. Members of the AFRC/RUF used civilians, including those that had been abducted from Freetown and the Western Area, as forced labour in various locations throughout the Port Loko District including Port Loko, Lunsar and Masiaka. AFRC/RUF forces also abducted and used as forced labour civilians from various locations the Port Loko District, including Tendakum and Nonkoba; By their acts or omissions in relation to these events, ALEX TAMBA BRIMA, BRIMA BAZZY KAMARA and SANTIGIE BORBOR KANU, pursuant to Article 6.1. and, or alternatively, Article 6.3. of the Statute, are individually criminally responsible for the crimes alleged below: Count 12: Enslavement, a CRIME AGAINST HUMANITY, punishable under Article 2.c. of the Statute.

COUNT 13: LOOTING AND BURNING 74. At all times relevant to this Indictment, AFRC/RUF engaged in widespread unlawful taking and destruction by burning of civilian property. This looting and burning included the following: Bo District 75. Between 1 June 1997 and 30 June 1997, AFRC/RUF forces looted and burned an unknown number of civilian houses in Telu, Sembehun, Mamboma and Tikonko; 52 part i

Koinadugu District 76. Between about 14 February 1998 and 30 September 1998, AFRC/RUF forces engaged in widespread looting and burning of civilian homes in various locations in the District, including Heremakono, Kabala, Kamadugu and Fadugu; Kono District 77. Between about 14 February 1998 and 30 June 1998, AFRC/RUF engaged in widespread looting and burning in various locations in the District, including Tombodu, Foindu and Yardu Sando, where virtually every home in the village was looted and burned; Bombali District 78. Between about 1 March 1998 and 31 November 1998, AFRC/RUF forces burnt an unknown number of civilian buildings in locations in Bombali District, such as Karina and Mateboi; Freetown and the Western Area 79. Between 6 January 1999 and 28 February 1999, AFRC/RUF forces engaged in widespread looting and burning throughout Freetown and the Western Area. The majority of houses that were destroyed were in the areas of Kissy, Wellington and Calaba town; other locations included the Fourah Bay, Upgun, State House and Pademba Road areas of the city; By their acts or omissions in relation to these events, ALEX TAMBA BRIMA, BRIMA BAZZY KAMARA and SANTIGIE BORBOR KANU, pursuant to Article 6.1. and, or alternatively, Article 6.3. of the Statute, are individually criminally responsible for the crimes alleged below: Count 13: Pillage, a VIOLATION OF ARTICLE 3 COMMON TO THE GENEVA CONVENTIONS AND OF ADDITIONAL PROTOCOL II, punishable under Article 3.f. of the Statute.

COUNTS 14 – 17: ATTACKS ON UNAMSIL PERSONNEL 80. Between about 15 April 2000 and about 15 September 2000, AFRC/RUF engaged in widespread attacks against UNAMSIL peacekeepers and humanitarian assistance workers within the Republic of Sierra Leone, including, but not limited to locations within Bombali, Kailahun, Kambia, Port Loko, and Kono Districts. These attacks included unlawful killing of UNAMSIL peacekeepers, and abducting hundreds of peacekeepers and humanitarian assistance workers who were then held hostage. By their acts or omissions in relation to these events, ALEX TAMBA BRIMA, BRIMA BAZZY KAMARA and SANTIGIE BORBOR KANU, pursuant to Article 6.1. and, or alternatively, Article 6.3. of the Statute, are individually criminally responsible for the crimes alleged below: indictments 53

Count 14: Intentionally directing attacks against personnel involved in a humanitarian assistance or peacekeeping mission, an OTHER SERIOUS VIOLATION OF INTERNATIONAL HUMANITARIAN LAW, punishable under Article 4.b. of the Statute; In addition, or in the alternative: Count 15: For the unlawful killings, Murder, a CRIME AGAINST HUMANITY, punishable under Article 2.a. of the Statute; In addition, or in the alternative: Count 16: 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; In addition, or in the alternative: Count 17: For the abductions and holding as hostage, taking of hostages, a VIOLATION OF ARTICLE 3 COMMON TO THE GENEVA CONVENTIONS AND OF ADDITIONAL PROTOCOL II, punishable under Article 3.c. of the Statute.

Dated this 5th day of February 2004 Freetown, Sierra Leone

David M. Crane Prosecutor

THE SPECIAL COURT FOR SIERRA LEONE CASE NO. SCSL – 2004-16-PT THE PROSECUTOR

Against ALEX TAMBA BRIMA also known as TAMBA ALEX BRIMA also known as GULLIT BRIMA BAZZY KAMARA also known as IBRAHIM BAZZY KAMARA also known as ALHAJI IBRAHIM KAMARA AND SANTIGIE BORBOR KANU also known as 55 also known as FIVE-FIVE also known as SANTIGIE KHANU also known as SANTIGIE KANU also known as S. B. KHANU also known as S.B. KANU also known as SANTIGIE BOBSON KANU also known as BORBOR SANTIGIE KANU

AMENDED CONSOLIDATED INDICTMENT The Prosecutor, Special Court for Sierra Leone, under Article 15 of the Statute of the Special Court for Sierra Leone (the Statute) charges: ALEX TAMBA BRIMA also known as (aka) TAMBA ALEX BRIMA aka GULLIT BRIMA BAZZY KAMARA aka IBRAHIM BAZZY KAMARA aka ALHAJI IBRAHIM KAMARA and SANTIGIE BORBOR KANU aka 55 aka FIVE-FIVE aka SANTIGIE KHANU aka SANTIGIE KANU aka S. B. KHANU aka S.B. KANU aka SANTIGIE BOBSON KANU aka BORBOR SANTIGIE KANU with CRIMES AGAINST HUMANITY, VIOLATIONS OF ARTICLE 3 COMMON TO THE GENEVA CONVENTIONS AND OF ADDITIONAL PROTOCOL II and OTHER SERIOUS VIOLATIONS OF INTERNATIONAL HUMANITARIAN LAW, in violation of Articles 2, 3 and 4 of the Statute as set forth below:

THE ACCUSED 1. ALEX TAMBA BRIMA aka TAMBA ALEX BRIMA aka GULLIT was born 23 November 1971 at Yaryah Village, Kono District, Republic of Sierra Leone. 56 part i

GENERAL ALLEGATIONS 7. At all times relevant to this Indictment, a state of armed conflict existed within Sierra Leone. For the purposes of this Indictment, organized armed factions involved in this conflict included the Revolutionary United Front (RUF), the Civil Defence Forces (CDF) and the Armed Forces Revolutionary Council (AFRC). 8. A nexus existed between the armed conflict and all acts or omissions charged herein as Violations of Article 3 common to the Geneva Conventions and of Addi- tional Protocol II and as Other Serious Violations of International Humanitarian Law. 9. The organized armed group that became known as the RUF, led by FODAY SAYBANA SANKOH aka POPAY aka PAPA aka PA, was founded about 1988 or 1989 in Libya. The RUF, under the leadership of FODAY SAYBANA SANKOH, began organized armed operations in Sierra Leone in March 1991. During the ensuing armed conflict, the RUF forces were also referred to as “RUF,” “rebels” and “People’s Army.” 10. The CDF was comprised of Sierra Leonean traditional hunters, including the Kamajors, Gbethis, Kapras, Tamaboros and Donsos. The CDF fought against the RUF and AFRC. 11. On 30 November 1996, in Abidjan, Ivory Coast, FODAY SAYBANA SANKOH and Ahmed Tejan Kabbah, President of the Republic of Sierra Leone, signed a peace agreement which brought a temporary cessation to active hostilities. Thereafter, the active hostilities recommenced. indictments 57

12. The AFRC was founded by members of the Armed Forces of Sierra Leone who seized power from the elected government of the Republic of Sierra Leone via a coup d’état on 25 May 1997. Soldiers of the Sierra Leone Army (SLA) comprised the majority of the AFRC membership. On that date JOHNNY PAUL KOROMA aka JPK became the leader and Chairman of the AFRC. The AFRC forces were also referred to as “Junta,” “soldiers,” “SLA,” and “ex-SLA.” 13. Shortly after the AFRC seized power, at the invitation of JOHNNY PAUL KOROMA, and upon the order of FODAY SAYBANA SANKOH, leader of the RUF, the RUF joined with the AFRC. The AFRC and RUF acted jointly thereafter. The AFRC/RUF Junta forces (Junta) were also referred to as “Junta,” “rebels,” “soldiers,” “SLA,” “ex-SLA” and “People’s Army.” 14. After the 25 May 1997 coup d’état, a governing body, the Supreme Council, was created within the Junta. The Supreme Council was the sole executive and legislative authority within Sierra Leone during the junta. The governing body included leaders of both the AFRC and RUF. 15. The Junta was forced from power by forces acting on behalf of the ousted government of President Kabbah about 14 February 1998. President Kabbah’s government returned in March 1998. After the Junta was removed from power the AFRC/RUF alliance continued. 16. On 7 July 1999, in Lomé, Togo, FODAY SAYBANA SANKOH and Ahmed Tejan Kabbah, President of the Republic of Sierra Leone, signed a peace agreement. However, active hostilities continued. 17. ALEX TAMBA BRIMA, BRIMA BAZZY KAMARA, SANTIGIE BORBOR KANU and all members of the organized armed factions engaged in fĳighting within Sierra Leone were required to abide by International Humanitarian Law and the laws and customs governing the conduct of armed conflicts, including the Geneva Conventions of 12 August 1949, and Additional Protocol II to the Geneva Conventions, to which the Republic of Sierra Leone acceded on 21 October 1986. 18. All offfences alleged herein were committed within the territory of Sierra Leone after 30 November 1996. 19. All acts and omissions charged herein as Crimes Against Humanity were committed as part of a widespread or systematic attack directed against the civilian population of Sierra Leone. 20. The words civilian or civilian population used in this Indictment refer to persons who took no active part in the hostilities, or who were no longer taking an active part in the hostilities. 58 part i

INDIVIDUAL CRIMINAL RESPONSIBILITY 21. Paragraphs 1 through 20 are incorporated by reference. 22. At all times relevant to this Indictment, ALEX TAMBA BRIMA was a senior member of the AFRC, Junta and AFRC/RUF forces. 23. ALEX TAMBA BRIMA was a member of the group which staged the coup and ousted the government of President Kabbah. JOHNNY PAUL KOROMA, Chairman and leader of the AFRC, appointed ALEX TAMBA BRIMA a Public Liaison Offfĳicer (PLO) within the AFRC. In addition, ALEX TAMBA BRIMA was a member of the Junta governing body. 24. Between mid February 1998 and about 30 April 1998, ALEX TAMBA BRIMA was in direct command of AFRC/RUF forces in the Kono District. In addition, ALEX TAMBA 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. As of about 22 December 1998, ALEX TAMBA BRIMA was in command of AFRC/RUF forces which attacked Freetown on 6 January 1999. 25. At all times relevant to this Indictment, BRIMA BAZZY KAMARA was a senior member of the AFRC, Junta and AFRC/RUF forces. 26. BRIMA BAZZY KAMARA was a member of the group which staged the coup and ousted the government of President Kabbah. JOHNNY PAUL KOROMA, Chairman and leader of the AFRC, appointed BRIMA BAZZY KAMARA a Public Liaison Offfĳicer (PLO) within the AFRC. In addition, BRIMA BAZZY KAMARA was a member of the Junta governing body. 27. Between about mid-February 1998 and 30 April 1998, BRIMA BAZZY KAMARA was a commander of AFRC/RUF forces based in Kono District. In addition, BRIMA BAZZY KAMARA 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. BRIMA BAZZY KAMARA was a commander of AFRC/RUF forces which attacked Freetown on 6 January 1999. 28. At all times relevant to this Indictment, SANTIGIE BORBOR KANU was a senior member of the AFRC, Junta and AFRC/RUF forces. 29. SANTIGIE BORBOR KANU was a member of the group of 17 soldiers which staged the coup and ousted the government of President Kabbah. In addition, SANTIGIE BORBOR KANU was a member of the Junta governing body, the AFRC Supreme Council. indictments 59

30. Between mid February 1998 and 30 April 1998, SANTIGIE BORBOR KANU was a senior commander of 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, including, but not limited to, attacks on civilians in Koinadugu and Bombali Districts between about mid February 1998 and 31 December 1998. SANTIGIE BORBOR KANU, along with ALEX TAMBA BRIMA and BRIMA BAZZY KAMARA, was also one of three commanders of AFRC/RUF forces during the attack on Freetown on 6 January 1999. 31. In their respective positions referred to above, ALEX TAMBA BRIMA, BRIMA BAZZY KAMARA and SANTIGIE BORBOR KANU, individually, or in concert with each other, JOHNNY PAUL KOROMA aka JPK, FODAY SAYBANA SANKOH, SAM BOCKARIE aka MOSQUITO aka MASKITA, ISSA HASSAN SESAY aka ISSA SESAY, MORRIS KALLON aka BILAI KARIM, AUGUSTINE GBAO aka AUGUSTINE BAO and/or other superiors in the AFRC, Junta and AFRC/RUF forces, exercised authority, command and control over all subordinate members of the AFRC, Junta and AFRC/RUF forces. 32. At all times relevant to this Indictment, ALEX TAMBA BRIMA, BRIMA BAZZY KAMARA and SANTIGIE BORBOR KANU, through their association with the RUF, acted in concert with CHARLES GHANKAY TAYLOR aka CHARLES MACARTHUR DAPKPANA TAYLOR. 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. 35. ALEX TAMBA BRIMA, BRIMA BAZZY KAMARA and SANTIGIE BORBOR KANU, 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 60 part i the Statute as alleged in this Indictment, which crimes each of them planned, instigated, ordered, committed or in whose planning, preparation or execution each Accused otherwise aided and abetted, or which crimes were within a joint criminal enterprise in which each Accused participated or were a reasonably foreseeable consequence of the joint criminal enterprise in which each Accused participated. 36. In addition, or alternatively, pursuant to Article 6.3. of the Statute, ALEX TAMBA BRIMA, BRIMA BAZZY KAMARA and SANTIGIE BORBOR KANU, while holding positions of superior responsibility and exercising efffective control over their subordinates, are each individually criminally responsible for the crimes referred to in Articles 2, 3 and 4 of the Statute. Each Accused is responsible for the criminal acts of his subordinates in that he knew or had reason to know that the subordinate was about to commit such acts or had done so and each Accused failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof.

CHARGES 37. Paragraphs 21 through 36 are incorporated by reference. 38. At all times relevant to this Indictment, members of the RUF, AFRC, Junta and/or AFRC/RUF forces (AFRC/RUF), subordinate to and/or acting in concert with ALEX TAMBA BRIMA, BRIMA BAZZY KAMARA and SANTIGIE BORBOR KANU, conducted armed attacks throughout the territory of the Republic of Sierra Leone, including Bo, Kono, Kenema, Koinadugu, Bombali and Kailahun and Port Loko Districts and the city of Freetown and the Western Area. Targets of the armed attacks included civilians. 39. These attacks were carried out primarily to terrorize the civilian population, but also were used to punish the population for failing to provide sufffĳicient support to the AFRC/RUF, or for allegedly providing support to the Kabbah government or to pro-government forces. The attacks included unlawful killings, physical and sexual violence against civilian men, women and children, abductions and looting and destruction of civilian property. Many civilians saw these crimes committed; others returned to their homes or places of refuge to fĳind the results of these crimes – dead bodies, mutilated victims and looted and burnt property. 40. As part of the campaign of terror and punishment the AFRC/RUF routinely captured and abducted members of the civilian population. Captured women and girls were raped; many of them were abducted and used as sex slaves and as forced labour. Some of these women and girls were held captive for years. Men and boys who were abducted were also used as forced labour; some of them were also held captive for years. Many abducted boys and girls were given combat training and indictments 61 used in active fĳighting. AFRC/RUF also physically mutilated men, women and children, including amputating their hands or feet and carving “AFRC” and “RUF” on their bodies.

COUNTS 1 – 2: TERRORIZING THE CIVILIAN POPULATION AND COLLECTIVE PUNISHMENTS 41. Members of the AFRC/RUF subordinate to and/or acting in concert with ALEX TAMBA BRIMA, BRIMA BAZZY KAMARA and SANTIGIE BORBOR KANU, committed the crimes set forth below in paragraphs 42 through 79 and charged in Counts 3 through 14, as part of a campaign to terrorize the civilian population of the Republic of Sierra Leone, and did terrorize that population. The AFRC/RUF also committed the crimes to punish the civilian population for allegedly supporting the elected government of President Ahmed Tejan Kabbah and factions aligned with that government, or for failing to provide sufffĳicient support to the AFRC/RUF. By their acts or omissions in relation to these events, ALEX TAMBA BRIMA, BRIMA BAZZY KAMARA and SANTIGIE BORBOR KANU, pursuant to Article 6.1. and, or alternatively, Article 6.3. of the Statute, are individually criminally responsible for the crimes alleged below: Count 1: Acts of Terrorism, a VIOLATION OF ARTICLE 3 COMMON TO THE GENEVA CONVENTIONS AND OF ADDITIONAL PROTOCOL II, punishable under Article 3.d. of the Statute; And: Count 2: Collective Punishments, a VIOLATION OF ARTICLE 3 COMMON TO THE GENEVA CONVENTIONS AND OF ADDITIONAL PROTOCOL II, punishable under Article 3.b. of the Statute.

COUNTS 3 – 5: UNLAWFUL KILLINGS 42. Victims were routinely shot, hacked to death and burned to death. Unlawful killings included the following: Bo District 43. Between about 1 June 1997 and 30 June 1997, AFRC/RUF attacked Tikonko, Telu, Sembehun, Gerihun and Mamboma, unlawfully killing an unknown number of civilians; Kenema District 44. Between 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; 62 part i

Kono District 45. About 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; Kailahun District 46. Between about 14 February 1998 and 30 June 1998, in locations including Kailahun town, members of AFRC/RUF unlawfully killed an unknown number of civilians; Koinadugu District 47. Between 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; Bombali District 48. Between 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; Freetown and the Western Area 49. Between 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; Port Loko 50. About 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; By their acts or omissions in relation to these events, ALEX TAMBA BRIMA, BRIMA BAZZY KAMARA and SANTIGIE BORBOR KANU, pursuant to Article 6.1. and, or alternatively, Article 6.3. of the Statute, are individually criminally responsible for the crimes alleged below: Count 3: Extermination, a CRIME AGAINST HUMANITY, punishable under Article 2.b. of the Statute; In addition, or in the alternative: indictments 63

Count 4: Murder, a CRIME AGAINST HUMANITY, punishable under Article 2.a. of the Statute; In addition, or in the alternative: Count 5: 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.

Kailahun District 55. At all times relevant to this 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, brought to AFRC/RUF camps in the District, and used as sex slaves and/or forced into “marriages” and/or subjected to other forms of sexual violence. The “wives” were forced to perform a number of conjugal duties under coercion by their “husbands”; Freetown and the Western Area 56. Between 6 January 1999 and 28 February 1999, members of AFRC/RUF raped hundreds of women and girls throughout the City of Freetown and the Western Area, and abducted hundreds of women and girls and used them as sex slaves and/or forced them into “marriages” and/or subjected them to other forms of sexual violence. The “wives” were forced to perform a number of conjugal duties under coercion by their “husbands”; Port Loko District 57. 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, members of the AFRC/RUF raped an unknown number of women and girls in various locations in the District. In addition, an unknown number of women and girls in various locations in the District were used as sex slaves and/or forced into “marriages” and/or subjected to other forms of sexual violence by members of the AFRC/RUF. The “wives” were forced to perform a number of conjugal duties under coercion by their “husbands”; By their acts or omissions in relation to these events, ALEX TAMBA BRIMA, BRIMA BAZZY KAMARA and SANTIGIE BORBOR KANU, pursuant to Article 6.1. and, or alternatively, Article 6.3. of the Statute, are individually criminally responsible for the crimes alleged below: Count 6: Rape, a CRIME AGAINST HUMANITY, punishable under Article 2.g. of the Statute; And: Count 7: Sexual slavery and any other form of sexual violence, a CRIME AGAINST HUMANITY, punishable under Article 2.g. of the Statute; And: Count 8: Other inhumane act, a CRIME AGAINST HUMANITY, punishable under Article 2.i. of the Statute; In addition, or in the alternative: indictments 65

Count 9: Outrages upon personal dignity, a VIOLATION OF ARTICLE 3 COMMON TO THE GENEVA CONVENTIONS AND OF ADDITIONAL PROTOCOL II, punishable under Article 3.e. of the Statute.

COUNTS 10 - 11: PHYSICAL VIOLENCE 58. Widespread physical violence, including mutilations, was committed against civilians. Victims were often brought to a central location where mutilations were carried out. These acts of physical violence included the following: Kono District 59. Between 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 offf limbs and carving “AFRC” and “RUF” on the bodies of the civilians; Kenema District 60. Between about 25 May 1997 and about 19 February 1998, in locations in Kenema District, including Kenema town, members of AFRC/RUF carried out beatings and ill-treatment of a number of civilians who were in custody; Koinadugu District 61. Between 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 offf limbs and carving “AFRC” on the chests and foreheads of the civilians; Bombali District 62. Between about 1 May 1998 and 31 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 offf limbs; Freetown and the Western Area 63. Between 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 offf limbs; Port Loko 64. About the month of February 1999, the AFRC/RUF fled from Freetown to various locations in the Port Loko District. Between February 1999 and April 1999 members of the AFRC/RUF mutilated an unknown number of civilians in various locations in the District, including cutting offf limbs; 66 part i

By their acts or omissions in relation to these events, ALEX TAMBA BRIMA, BRIMA BAZZY KAMARA and SANTIGIE BORBOR KANU, pursuant to Article 6.1. and, or alternatively, Article 6.3. of the Statute, are individually criminally responsible for the crimes alleged below: Count 10: Violence to life, health and physical or mental well-being of persons, in particular mutilation, a VIOLATION OF ARTICLE 3 COMMON TO THE GENEVA CONVENTIONS AND OF ADDITIONAL PROTOCOL II, punishable under Article 3.a. of the Statute; In addition, or in the alternative: Count 11: Other inhumane acts, a CRIME AGAINST HUMANITY, punishable under Article 2.i. of the Statute.

COUNT 12: USE OF CHILD SOLDIERS 65. At 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 fĳirst abducted, then trained in AFRC/RUF camps in various locations throughout the country, and thereafter used as fĳighters. By their acts or omissions in relation to these events, ALEX TAMBA BRIMA, BRIMA BAZZY KAMARA and SANTIGIE BORBOR KANU, pursuant to Article 6.1. and, or alternatively, Article 6.3. of the Statute, are individually criminally responsible for the crimes alleged below: Count 12: Conscripting or enlisting children under the age of 15 years into armed forces or groups, or using them to participate actively in hostilities, an OTHER SERIOUS VIOLATION OF INTERNATIONAL HUMANITARIAN LAW, punishable under Article 4.c. of the Statute.

COUNT 13: ABDUCTIONS AND FORCED LABOUR 66. 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. The abductions and forced labour included the following: Kenema District 67. Between about 1 August 1997 and about 31 January 1998, AFRC/RUF forced an unknown number of civilians living in the District to mine for diamonds at Cyborg Pit in Tongo Field; indictments 67

Kono District 68. Between about 14 February 1998 to January 2000, AFRC/RUF forces abducted hundreds of civilian men, women and children, and took them to various locations outside the District, or to locations within the District such as AFRC/RUF camps, Tombodu, Koidu, Wondedu, Tomendeh. At these locations the civilians were used as forced labour, including domestic labour and as diamond miners in the Tombodu area; Koinadugu District 69. Between about 14 February 1998 and 30 September 1998, at various locations including Heremakono, Kabala, Kumala (or Kamalu), Koinadugu, Kamadugu and Fadugu, members of the AFRC/RUF abducted an unknown number of men, women and children and used them as forced labour; Bombali District 70. Between about 1 May 1998 and 31 November 1998, in Bombali District, members of the AFRC/RUF abducted an unknown number of civilians and used them as forced labour; Kailahun District 71. At all times relevant to this Indictment, captured civilian men, women and children were brought to various locations within the District and used as forced labour; Freetown and the Western Area 72. Between 6 January 1999 and 28 February 1999, in particular as the AFRC/RUF were being driven out of Freetown and the Western Area, members of the AFRC/RUF abducted hundreds of civilians, including a large number of children, from various areas in Freetown and the Western Area, including Peacock Farm, Kissy, and Calaba Town. These abducted civilians were used as forced labour; Port Loko 73. About the month of February 1999, the AFRC/RUF fled from Freetown to various locations in the Port Loko District. Members of the AFRC/RUF used civilians, including those that had been abducted from Freetown and the Western Area, as forced labour in various locations throughout the Port Loko District including Port Loko, Lunsar and Masiaka. AFRC/RUF forces also abducted and used as forced labour civilians from various locations the Port Loko District, including Tendakum and Nonkoba; By their acts or omissions in relation to these events, ALEX TAMBA BRIMA, BRIMA BAZZY KAMARA and SANTIGIE BORBOR KANU, pursuant to Article 6.1. and, or alternatively, Article 6.3. of the Statute, are individually criminally responsible for the crimes alleged below: 68 part i

Count 13: Enslavement, a CRIME AGAINST HUMANITY, punishable under Article 2.c. of the Statute.

COUNT 14: LOOTING AND BURNING 74. At all times relevant to this Indictment, AFRC/RUF engaged in widespread unlawful taking and destruction by burning of civilian property. This looting and burning included the following: Bo District 75. Between 1 June 1997 and 30 June 1997, AFRC/RUF forces looted and burned an unknown number of civilian houses in Telu, Sembehun, Mamboma and Tikonko; Koinadugu District 76. Between about 14 February 1998 and 30 September 1998, AFRC/RUF forces engaged in widespread looting and burning of civilian homes in various locations in the District, including Heremakono, Kabala, Kamadugu and Fadugu; Kono District 77. Between about 14 February 1998 and 30 June 1998, AFRC/RUF engaged in widespread looting and burning in various locations in the District, including Tombodu, Foindu and Yardu Sando, where virtually every home in the village was looted and burned; Bombali District 78. Between about 1 March 1998 and 31 November 1998, AFRC/RUF forces burnt an unknown number of civilian buildings in locations in Bombali District, such as Karina and Mateboi; Freetown and the Western Area 79. Between 6 January 1999 and 28 February 1999, AFRC/RUF forces engaged in widespread looting and burning throughout Freetown and the Western Area. The majority of houses that were destroyed were in the areas of Kissy, Wellington and Calaba town; other locations included the Fourah Bay, Upgun, State House and Pademba Road areas of the city; By their acts or omissions in relation to these events, ALEX TAMBA BRIMA, BRIMA BAZZY KAMARA and SANTIGIE BORBOR KANU, pursuant to Article 6.1. and, or alternatively, Article 6.3. of the Statute, are individually criminally responsible for the crimes alleged below: Count 14: Pillage, a Violation of Article 3 common to the Geneva Conventions and of Additional Protocol II, punishable under Article 3.f. of the Statute. indictments 69

COUNTS 15 – 18: ATTACKS ON UNAMSIL PERSONNEL 80. Between about 15 April 2000 and about 15 September 2000, AFRC/RUF engaged in widespread attacks against UNAMSIL peacekeepers and humanitarian assistance workers within the Republic of Sierra Leone, including, but not limited to locations within Bombali, Kailahun, Kambia, Port Loko, and Kono Districts. These attacks included unlawful killing of UNAMSIL peacekeepers, and abducting hundreds of peacekeepers and humanitarian assistance workers who were then held hostage. By their acts or omissions in relation to these events, ALEX TAMBA BRIMA, BRIMA BAZZY KAMARA and SANTIGIE BORBOR KANU, pursuant to Article 6.1. and, or alternatively, Article 6.3. of the Statute, are individually criminally responsible for the crimes alleged below: Count 15: Intentionally directing attacks against personnel involved in a humanitarian assistance or peacekeeping mission, an OTHER SERIOUS VIOLATION OF INTERNATIONAL HUMANITARIAN LAW, punishable under Article 4.b. of the Statute; In addition, or in the alternative: Count 16: For the unlawful killings, Murder, a CRIME AGAINST HUMANITY, punishable under Article 2.a. of the Statute; In addition, or in the alternative: Count 17: 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; In addition, or in the alternative: Count 18: For the abductions and holding as hostage, taking of hostages, a VIOLATION OF ARTICLE 3 COMMON TO THE GENEVA CONVENTIONS AND OF ADDITIONAL PROTOCOL II, punishable under Article 3.c. of the Statute.

Dated this 13th day of May 2004 Freetown, Sierra Leone.

David M. Crane The Prosecutor

THE SPECIAL COURT FOR SIERRA LEONE CASE NO. SCSL – 2004-16-PT THE PROSECUTOR

FURTHER AMENDED CONSOLIDATED INDICTMENT The Prosecutor, Special Court for Sierra Leone, under Article 15 of the Statute of the Special Court for Sierra Leone (the Statute) charges: ALEX TAMBA BRIMA also known as (aka) TAMBA ALEX BRIMA aka GULLIT BRIMA BAZZY KAMARA aka IBRAHIM BAZZY KAMARA aka ALHAJI IBRAHIM KAMARA and SANTIGIE BORBOR KANU aka 55 aka FIVE-FIVE aka SANTIGIE KHANU aka SANTIGIE KANU aka S. B. KHANU aka S.B. KANU aka SANTIGIE BOBSON KANU aka BORBOR SANTIGIE KANU with CRIMES AGAINST HUMANITY, VIOLATIONS OF ARTICLE 3 COMMON TO THE GENEVA CONVENTIONS AND OF ADDITIONAL PROTOCOL II and OTHER SERIOUS VIOLATIONS OF INTERNATIONAL HUMANITARIAN LAW, in violation of Articles 2, 3 and 4 of the Statute as set forth below:

THE ACCUSED 1. ALEX TAMBA BRIMA aka TAMBA ALEX BRIMA aka GULLIT was born 23 November 1971 at Yaryah Village, Kono District, Republic of Sierra Leone. 72 part i

GENERAL ALLEGATIONS 7. At all times relevant to this Indictment, a state of armed conflict existed within Sierra Leone. For the purposes of this Indictment, organized armed factions involved in this conflict included the Revolutionary United Front (RUF), the Civil Defence Forces (CDF) and the Armed Forces Revolutionary Council (AFRC). 8. A nexus existed between the armed conflict and all acts or omissions charged herein as Violations of Article 3 common to the Geneva Conventions and of Addi- tional Protocol II and as Other Serious Violations of International Humanitarian Law. 9. The organized armed group that became known as the RUF, led by FODAY SAYBANA SANKOH aka POPAY aka PAPA aka PA, was founded about 1988 or 1989 in Libya. The RUF, under the leadership of FODAY SAYBANA SANKOH, began organized armed operations in Sierra Leone in March 1991. During the ensuing armed conflict, the RUF forces were also referred to as “RUF,” “rebels” and “People’s Army.” 10. The CDF was comprised of Sierra Leonean traditional hunters, including the Kamajors, Gbethis, Kapras, Tamaboros and Donsos. The CDF fought against the RUF and AFRC. 11. On 30 November 1996, in Abidjan, Ivory Coast, FODAY SAYBANA SANKOH and Ahmed Tejan Kabbah, President of the Republic of Sierra Leone, signed a peace agreement which brought a temporary cessation to active hostilities. Thereafter, the active hostilities recommenced. indictments 73

12. The AFRC was founded by members of the Armed Forces of Sierra Leone who seized power from the elected government of the Republic of Sierra Leone via a coup d’état on 25 May 1997. Soldiers of the Sierra Leone Army (SLA) comprised the majority of the AFRC membership. On that date Johnny Paul Koroma aka JPK became the leader and Chairman of the AFRC. The AFRC forces were also referred to as “Junta,” “soldiers,” “SLA,” and “ex-SLA.” 13. Shortly after the AFRC seized power, at the invitation of JOHNNY PAUL KOROMA, and upon the order of FODAY SAYBANA SANKOH, leader of the RUF, the RUF joined with the AFRC. The AFRC and RUF acted jointly thereafter. The AFRC/RUF Junta forces (Junta) were also referred to as “Junta,” “rebels,” “soldiers,” “SLA,” “ex-SLA” and “People’s Army.” 14. After the 25 May 1997 coup d’état, a governing body, the Supreme Council, was created within the Junta. The Supreme Council was the sole executive and legislative authority within Sierra Leone during the junta. The governing body included leaders of both the AFRC and RUF. 15. The Junta was forced from power by forces acting on behalf of the ousted government of President Kabbah about 14 February 1998. President Kabbah’s government returned in March 1998. After the Junta was removed from power the AFRC/RUF alliance continued. 16. On 7 July 1999, in Lomé, Togo, FODAY SAYBANA SANKOH and Ahmed Tejan Kabbah, President of the Republic of Sierra Leone, signed a peace agreement. However, active hostilities continued. 17. ALEX TAMBA BRIMA, BRIMA BAZZY KAMARA, SANTIGIE BORBOR KANU and all members of the organized armed factions engaged in fĳighting within Sierra Leone were required to abide by International Humanitarian Law and the laws and customs governing the conduct of armed conflicts, including the Geneva Conventions of 12 August 1949, and Additional Protocol II to the Geneva Conventions, to which the Republic of Sierra Leone acceded on 21 October 1986. 18. All offfences alleged herein were committed within the territory of Sierra Leone after 30 November 1996. 19. All acts and omissions charged herein as Crimes Against Humanity were committed as part of a widespread or systematic attack directed against the civilian population of Sierra Leone. 20. The words civilian or civilian population used in this Indictment refer to persons who took no active part in the hostilities, or who were no longer taking an active part in the hostilities. 74 part i

INDIVIDUAL CRIMINAL RESPONSIBILITY 21. Paragraphs 1 through 20 are incorporated by reference. 22. At all times relevant to this Indictment, ALEX TAMBA BRIMA was a senior member of the AFRC, Junta and AFRC/RUF forces. 23. ALEX TAMBA BRIMA was a member of the group which staged the coup and ousted the government of President Kabbah. JOHNNY PAUL KOROMA, Chairman and leader of the AFRC, appointed ALEX TAMBA BRIMA a Public Liaison Offfĳicer (PLO) within the AFRC. In addition, ALEX TAMBA BRIMA was a member of the Junta governing body. 24. Between mid February 1998 and about 30 April 1998, ALEX TAMBA BRIMA was in direct command of AFRC/RUF forces in the Kono District. In addition, ALEX TAMBA 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. As of about 22 December 1998, ALEX TAMBA BRIMA was in command of AFRC/RUF forces which attacked Freetown on 6 January 1999. 25. At all times relevant to this Indictment, BRIMA BAZZY KAMARA was a senior member of the AFRC, Junta and AFRC/RUF forces. 26. BRIMA BAZZY KAMARA was a member of the group which staged the coup and ousted the government of President Kabbah. JOHNNY PAUL KOROMA, Chairman and leader of the AFRC, appointed BRIMA BAZZY KAMARA a Public Liaison Offfĳicer (PLO) within the AFRC. In addition, BRIMA BAZZY KAMARA was a member of the Junta governing body. 27. Between about mid-February 1998 and 30 April 1998, BRIMA BAZZY KAMARA was a commander of AFRC/RUF forces based in Kono District. In addition, BRIMA BAZZY KAMARA 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. BRIMA BAZZY KAMARA was a commander of AFRC/RUF forces which attacked Freetown on 6 January 1999. 28. At all times relevant to this Indictment, SANTIGIE BORBOR KANU was a senior member of the AFRC, Junta and AFRC/RUF forces. 29. SANTIGIE BORBOR KANU was a member of the group of 17 soldiers which staged the coup and ousted the government of President Kabbah. In addition, indictments 75

SANTIGIE BORBOR KANU was a member of the Junta governing body, the AFRC Supreme Council. 30. Between mid February 1998 and 30 April 1998, SANTIGIE BORBOR KANU was a senior commander of 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, including, but not limited to, attacks on civilians in Koinadugu and Bombali Districts between about mid February 1998 and 31 December 1998. SANTIGIE BORBOR KANU, along with ALEX TAMBA BRIMA and BRIMA BAZZY KAMARA, was also one of three commanders of AFRC/RUF forces during the attack on Freetown on 6 January 1999. 31. In their respective positions referred to above, ALEX TAMBA BRIMA, BRIMA BAZZY KAMARA and SANTIGIE BORBOR KANU, individually, or in concert with each other, JOHNNY PAUL KOROMA aka JPK, FODAY SAYBANA SANKOH, SAM BOCKARIE aka MOSQUITO aka MASKITA, ISSA HASSAN SESAY aka ISSA SESAY, MORRIS KALLON aka BILAI KARIM, AUGUSTINE GBAO aka AUGUSTINE BAO and/or other superiors in the AFRC, Junta and AFRC/RUF forces, exercised authority, command and control over all subordinate members of the AFRC, Junta and AFRC/RUF forces. 32. At all times relevant to this Indictment, ALEX TAMBA BRIMA, BRIMA BAZZY KAMARA and SANTIGIE BORBOR KANU, through their association with the RUF, acted in concert with CHARLES GHANKAY TAYLOR aka CHARLES MACARTHUR DAPKPANA TAYLOR. 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. 76 part i

35. ALEX TAMBA BRIMA, BRIMA BAZZY KAMARA and SANTIGIE BORBOR KANU, by their acts or omissions, are individually criminally responsible pursuant to Article 6.1. of the Statute for the crimes referred to in Articles 2, 3 and 4 of the Statute as alleged in this Indictment, which crimes each of them planned, instigated, ordered, committed or in whose planning, preparation or execution each Accused otherwise aided and abetted, or which crimes were within a joint criminal enterprise in which each Accused participated or were a reasonably foreseeable consequence of the joint criminal enterprise in which each Accused participated. 36. In addition, or alternatively, pursuant to Article 6.3. of the Statute, ALEX TAMBA BRIMA, BRIMA BAZZY KAMARA and SANTIGIE BORBOR KANU, while holding positions of superior responsibility and exercising efffective control over their subordinates, are each individually criminally responsible for the crimes referred to in Articles 2, 3 and 4 of the Statute. Each Accused is responsible for the criminal acts of his subordinates in that he knew or had reason to know that the subordinate was about to commit such acts or had done so and each Accused failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof.

CHARGES 37. Paragraphs 21 through 36 are incorporated by reference. 38. At all times relevant to this Indictment, members of the RUF, AFRC, Junta and/or AFRC/RUF forces (AFRC/RUF), subordinate to and/or acting in concert with ALEX TAMBA BRIMA, BRIMA BAZZY KAMARA and SANTIGIE BORBOR KANU, conducted armed attacks throughout the territory of the Republic of Sierra Leone, including Bo, Kono, Kenema, Koinadugu, Bombali and Kailahun and Port Loko Districts and the city of Freetown and the Western Area. Targets of the armed attacks included civilians. 39. These attacks were carried out primarily to terrorize the civilian population, but also were used to punish the population for failing to provide sufffĳicient support to the AFRC/RUF, or for allegedly providing support to the Kabbah government or to pro-government forces. The attacks included unlawful killings, physical and sexual violence against civilian men, women and children, abductions and looting and destruction of civilian property. Many civilians saw these crimes committed; others returned to their homes or places of refuge to fĳind the results of these crimes – dead bodies, mutilated victims and looted and burnt property. 40. As part of the campaign of terror and punishment the AFRC/RUF routinely captured and abducted members of the civilian population. Captured women and indictments 77 girls were raped; many of them were abducted and used as sex slaves and as forced labour. Some of these women and girls were held captive for years. Men and boys who were abducted were also used as forced labour; some of them were also held captive for years. Many abducted boys and girls were given combat training and used in active fĳighting. AFRC/RUF also physically mutilated men, women and children, including amputating their hands or feet and carving “AFRC” and “RUF” on their bodies.

COUNTS 1 – 2: TERRORIZING THE CIVILIAN POPULATION AND COLLECTIVE PUNISHMENTS 41. Members of the AFRC/RUF subordinate to and/or acting in concert with ALEX TAMBA BRIMA, BRIMA BAZZY KAMARA and SANTIGIE BORBOR KANU, committed the crimes set forth below in paragraphs 42 through 79 and charged in Counts 3 through 14, as part of a campaign to terrorize the civilian population of the Republic of Sierra Leone, and did terrorize that population. The AFRC/RUF also committed the crimes to punish the civilian population for allegedly supporting the elected government of President Ahmed Tejan Kabbah and factions aligned with that government, or for failing to provide sufffĳicient support to the AFRC/RUF. By their acts or omissions in relation to these events, ALEX TAMBA BRIMA, BRIMA BAZZY KAMARA and SANTIGIE BORBOR KANU, pursuant to Article 6.1. and, or alternatively, Article 6.3. of the Statute, are individually criminally responsible for the crimes alleged below: Count 1: Acts of Terrorism, a VIOLATION OF ARTICLE 3 COMMON TO THE GENEVA CONVENTIONS AND OF ADDITIONAL PROTOCOL II, punishable under Article 3.d. of the Statute; And: Count 2: Collective Punishments, a VIOLATION OF ARTICLE 3 COMMON TO THE GENEVA CONVENTIONS AND OF ADDITIONAL PROTOCOL II, punishable under Article 3.b. of the Statute.

Kenema District 44. Between 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; Kono District 45. About 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; Kailahun District 46. Between about 14 February 1998 and 30 June 1998, in locations including Kailahun town, members of AFRC/RUF unlawfully killed an unknown number of civilians; Koinadugu District 47. Between 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; Bombali District 48. Between 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; Freetown and the Western Area 49. Between 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; Port Loko 50. About 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; By their acts or omissions in relation to these events, ALEX TAMBA BRIMA, BRIMA BAZZY KAMARA and SANTIGIE BORBOR KANU, pursuant to Article 6.1. and, or alternatively, Article 6.3. of the Statute, are individually criminally responsible for the crimes alleged below: indictments 79

COUNTS 6 – 9: SEXUAL VIOLENCE 51. Widespread sexual violence committed against civilian women and girls included brutal rapes, often by multiple rapists, and forced “marriages.” Acts of sexual violence included the following: Kono District 52. Between about 14 February 1998 and 30 June 1998, members of AFRC/RUF raped hundreds of women and girls at various locations throughout the 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. An unknown number of women and girls were abducted from various locations within the District and used as sex slaves and/or forced into “marriages” and/or subjected to other forms of sexual violence. The “wives” were forced to perform a number of conjugal duties under coercion by their “husbands”; Koinadugu District 53. Between about 14 February 1998 and 30 September 1998, members of AFRC/ RUF raped an unknown number of women and girls in locations in Koinadugu District, such as Kabala, Koinadugu, Heremakono and Fadugu. In addition an unknown number of women and girls were abducted and used as sex slaves and/ or forced into “marriages” and/or subjected to other forms of sexual violence. The “wives” were forced to perform a number of conjugal duties under coercion by their “husbands”; Bombali District 54. Between about 1 May 1998 and 31 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). In addition, an unknown number of abducted women and girls were used as sex slaves and/or 80 part i forced into “marriages” and/or subjected to other forms of sexual violence. The “wives” were forced to perform a number of conjugal duties under coercion by their “husbands”; Kailahun District 55. At all times relevant to this 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, brought to AFRC/RUF camps in the District, and used as sex slaves and/or forced into “marriages” and/or subjected to other forms of sexual violence. The “wives” were forced to perform a number of conjugal duties under coercion by their “husbands”; Freetown and the Western Area 56. Between 6 January 1999 and 28 February 1999, members of AFRC/RUF raped hundreds of women and girls throughout the City of Freetown and the Western Area, and abducted hundreds of women and girls and used them as sex slaves and/or forced them into “marriages” and/or subjected them to other forms of sexual violence. The “wives” were forced to perform a number of conjugal duties under coercion by their “husbands”; Port Loko District 57. 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, members of the AFRC/RUF raped an unknown number of women and girls in various locations in the District. In addition, an unknown number of women and girls in various locations in the District were used as sex slaves and/or forced into “marriages” and/or subjected to other forms of sexual violence by members of the AFRC/RUF. The “wives” were forced to perform a number of conjugal duties under coercion by their “husbands”; By their acts or omissions in relation to these events, ALEX TAMBA BRIMA, BRIMA BAZZY KAMARA and SANTIGIE BORBOR KANU, pursuant to Article 6.1. and, or alternatively, Article 6.3. of the Statute, are individually criminally responsible for the crimes alleged below: Count 6: Rape, a CRIME AGAINST HUMANITY, punishable under Article 2.g. of the Statute; And: Count 7: Sexual slavery and any other form of sexual violence, a CRIME AGAINST HUMANITY, punishable under Article 2.g. of the Statute; And: indictments 81

Count 8: Other inhumane act, a CRIME AGAINST HUMANITY, punishable under Article 2.i. of the Statute; In addition, or in the alternative: Count 9: Outrages upon personal dignity, a VIOLATION OF ARTICLE 3 COMMON TO THE GENEVA CONVENTIONS AND OF ADDITIONAL PROTOCOL II, punishable under Article 3.e. of the Statute.

COUNTS 10 – 11: PHYSICAL VIOLENCE 58. Widespread physical violence, including mutilations, was committed against civilians. Victims were often brought to a central location where mutilations were carried out. These acts of physical violence included the following: Kono District 59. Between 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 offf limbs and carving “AFRC” and “RUF” on the bodies of the civilians; Kenema District 60. Between about 25 May 1997 and about 19 February 1998, in locations in Kenema District, including Kenema town, members of AFRC/RUF carried out beatings and ill-treatment of a number of civilians who were in custody; Koinadugu District 61. Between 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 offf limbs and carving “AFRC” on the chests and foreheads of the civilians; Bombali District 62. Between about 1 May 1998 and 31 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 offf limbs; Freetown and the Western Area 63. Between 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 offf limbs; 82 part i

Port Loko 64. About the month of February 1999, the AFRC/RUF fled from Freetown to various locations in the Port Loko District. Between February 1999 and April 1999 members of the AFRC/RUF mutilated an unknown number of civilians in various locations in the District, including cutting offf limbs; By their acts or omissions in relation to these events, ALEX TAMBA BRIMA, BRIMA BAZZY KAMARA and SANTIGIE BORBOR KANU, pursuant to Article 6.1. and, or alternatively, Article 6.3. of the Statute, are individually criminally responsible for the crimes alleged below: Count 10: Violence to life, health and physical or mental well-being of persons, in particular mutilation, A VIOLATION OF ARTICLE 3 COMMON TO THE GENEVA CONVENTIONS AND OF ADDITIONAL PROTOCOL II, punishable under Article 3.a. of the Statute; In addition, or in the alternative: Count 11: Other inhumane acts, a CRIME AGAINST HUMANITY, punishable under Article 2.i. of the Statute.

Kenema District 67. Between about 1 August 1997 and about 31 January 1998, AFRC/RUF forced an unknown number of civilians living in the District to mine for diamonds at Cyborg Pit in Tongo Field; Kono District 68. Between about 14 February 1998 to January 2000, AFRC/RUF forces abducted hundreds of civilian men, women and children, and took them to various locations outside the District, or to locations within the District such as AFRC/RUF camps, Tombodu, Koidu, Wondedu, Tomendeh. At these locations the civilians were used as forced labour, including domestic labour and as diamond miners in the Tombodu area; Koinadugu District 69. Between about 14 February 1998 and 30 September 1998, at various locations including Heremakono, Kabala, Kumala (or Kamalu), Koinadugu, Kamadugu and Fadugu, members of the AFRC/RUF abducted an unknown number of men, women and children and used them as forced labour; Bombali District 70. Between about 1 May 1998 and 31 November 1998, in Bombali District, members of the AFRC/RUF abducted an unknown number of civilians and used them as forced labour; Kailahun District 71. At all times relevant to this Indictment, captured civilian men, women and children were brought to various locations within the District and used as forced labour; Freetown and the Western Area 72. Between 6 January 1999 and 28 February 1999, in particular as the AFRC/ RUF were being driven out of Freetown and the Western Area, members of the AFRC/RUF abducted hundreds of civilians, including a large number of children, from various areas in Freetown and the Western Area, including Peacock Farm, Kissy, and Calaba Town. These abducted civilians were used as forced labour; Port Loko 73. About the month of February 1999, the AFRC/RUF fled from Freetown to various locations in the Port Loko District. Members of the AFRC/RUF used civilians, including those that had been abducted from Freetown and the Western Area, as forced labour in various locations throughout the Port Loko District including Port Loko, Lunsar and Masiaka. AFRC/RUF forces also abducted and used as forced labour civilians from various locations the Port Loko District, including Tendakum and Nonkoba; 84 part i

Count 14: Pillage, a Violation of Article 3 common to the Geneva Conventions and of Additional Protocol II, punishable under Article 3.f. of the Statute.

Dated this 18th day of February 2005 Freetown, Sierra Leone

David M. Crane The Prosecutor

PART II

INTERLOCUTORY DECISIONS – TRIAL CHAMBER

THE TRIAL CHAMBER

Before: Judge Bankole Thompson Registry: Mr. Robin Vincent Decision of: 07 March 2003

THE PROSECUTOR Against ALEX TAMBA BRIMA also known as TAMBA ALEX BRIMA Also known as GULLIT CASE NO. SCSL-2003-06-1

DECISION APPROVING THE INDICTMENT and ORDER FOR NON-DISCLOSURE

The Office of the Prosecutor: David Crane Brenda Hollis 90 part ii

THE SPECIAL COURT FOR SIERRA LEONE (the Special Court), SITTING AS Judge Thompson, designated by the President of the Special Court according to Rule 28 of the Rules of Procedure and Evidence (“the Rules”); HAVING RECEIVED on 7 March 2003 from the Prosecutor the enclosed Indict- ment and accompanying material, pursuant to Rule 47 of the Rules against ALEX TAMBA BRIMA also known as TAMBA ALEX BRIMA, also known as GULLIT, a citizen of Sierra Leone, born 23 November 1971 at Yaryah Village, Kono District, Republic of Sierra Leone, thereby accused 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; BEING SATISFIED from the material tendered by the Prosecutor that there is suf- fĳicient evidence to provide reasonable grounds for believing that the suspect has committed crimes within the jurisdiction of the Court and that the allegations would, if proven, amount to the crimes specifĳied and particularised in the said Indictment; HEREBY APPROVES the Indictment submitted by the Prosecutor against ALEX TAMBA BRIMA in respect to each and every count. TAKES NOTE of the Prosecutor’s request that a Warrant of Arrest and Order for Transfer and Detention be issued against ALEX TAMBA BRIMA. CONSIDERING Article 17(2) of the Agreement Between the United Nations and the Government of Sierra Leone on the Establishment of the Special Court for Sierra Leone (“the Agreement”); CONSIDERING the Special Court Agreement 2002 (Ratifĳication) Act 2002, Section 20, an order of the Special Court, shall have the same force or efffect as if it had been issued by a Judge, Magistrate or Justice of the Peace of a Sierra Leone court. ORDERS, pursuant to Rule 53 and after consultation with the Prosecutor, that there be no public disclosure of the Indictment or any part thereof or information pertaining to the Indictment, the Warrant of Arrest, the transfer and detention until further order by the Special Court. DIRECTS the Registrar, in accordance with Rule 55(B) of the Rules, to serve this Decision and the Special Court’s Warrant of Arrest and Order for Transfer and Detention of the Accused on the relevant authorities of the Government of Sierra Leone. Done in London, this 7th day of March 2003. Signed Judge Bankole Thompson THE TRIAL CHAMBER

Before: Judge Bankole Thompson Registry: Mr. Robin Vincent Decision: 07 March 2003

THE PROSECUTOR Against ALEX TAMBA BRIMA also known as TAMBA ALEX BRIMA Also known as GULLIT CASE NO. SCSL-2003-06-1

WARRANT OF ARREST AND ORDER FOR TRANSFER AND DETENTION

The Office of the Prosecutor: David Crane Brenda Hollis 92 part ii

THE SPECIAL COURT FOR SIERRA LEONE (the “Special Court”), SITTING AS Judge Thompson, designated by the President of the Special Court according to Rule 28 of the Rules of Procedure and Evidence (“the Rules”); CONSIDERING that the Indictment against ALEX TAMBA BRIMA also known as TAMBA ALEX BRIMA, also known as GULLIT, a citizen of Sierra Leone, born 23 November 1971 at Yaryah Village, Kono District, Republic of Sierra Leone, who is accused 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 (“the Accused”); was reviewed and approved by the Special Court on 7 March 2003, CONSIDERING that an Order for the Non-Disclosure was granted on 7 March 2003;

HEREBY ORDERS THE REGISTRAR OF THE SPECIAL COURT (A) to address this Warrant of Arrest, Decision Approving the Indictment, the Approved Indictment of the Accused and a Statement of the Rights of the Accused to the national authorities of Sierra Leone in accordance with Rule 55; (C) to cause to be served on the Accused, at the time of his arrest, or as soon as is practicable immediately following his arrest, in English or have read to him in a language he understands, a certifĳied copy of the Warrant of Arrest, a certifĳied copy of the Indictment, a statement of the rights of the Accused and to caution the Accused that any statement made by him shall be recorded and may be used as evidence against him in coordination with the National Authorities of the State concerned; (D) to remand the Accused, into the custody of the Special Court Detention Facility or such other Detention Facility as determined by the President in accordance with Rule 57.

HEREBY ORDERS THE RELEVANT AUTHORITIES OF THE GOVERNMENT OF SIERRA LEONE (A) to transfer the Accused to the custody of the Special Court without delay, or to such other place as the President may decide. The transfer shall be arranged between with the relevant national authorities of the Government of Sierra Leone and the Registrar of the Special Court; (B) to assist and facilitate the Offfĳice of the Prosecutor of the Special Court, at any location, in the search for and seizure of all evidence related to the crimes alleged to have been committed by the Accused; interlocutory decisions – trial chamber 93

(C) to identify and locate assets owned by the Accused located within the territory of any State and adopt provisional measures to freeze such assets without prejudice to the rights of third parties; (D) not to disclose to the public, including the media or any public record, the existence of the Indictment and this Warrant of Arrest, or any part thereof or information pertaining to the Indictment and this Warrant for Arrest until further order of the Court or at the direction of the Prosecutor; A Member of the Offfĳice of the Prosecutor may be present from the time of arrest. Done in London, this 7th day of March 2003.

Signed Judge Bankole Thompson Presiding Judge of the Trial Chamber

THE TRIAL CHAMBER

Before: Judge Benjamin Mutanga Itoe Registry: Mr. Robin Vincent Decision of: 14 March 2003

THE PROSECUTOR Against ALEX TAMBA BRIMA also known as TAMBA ALEX BRIMA Also known as GULLIT CASE NO. SCSL-2003-06-1

ORDER FOR THE DISCLOSURE OF THE INDICTMENT AND THE WARRANT OF ARREST AND ORDER FOR TRANSFER AND DETENTION

The Office of the Prosecutor: Mr. David Crane Mr. Jim Johnson 96 part ii

THE SPECIAL COURT FOR SIERRA LEONE (the Court), SITTING AS Judge Benjamin Mutanga Itoe, designated by the President of the Special Court according to Rule 28 of the Rules of Procedure and Evidence (“the Rules”); CONSIDERING the Indictment against Alex Tamba Brima (“the Accused”) reviewed and approved by Judge Bankole Thompson on 7 March 2003; CONSIDERING the Warrant of Arrest and Order for Transfer and Detention of the Accused granted on 7 March 2003; CONSIDERING the Order for Non-Disclosure of the Indictment and the Warrant of Arrest and Order for Transfer and Detention granted on 7 March 2003; CONSIDERING the arrest of the Accused on 10 March 2003 and his transfer to the custody of the Special Court on the same date; CONSIDERING that the initial appearance of the Accused under Rule 61 of the Rules of will take place on 15 March 2003; HAVING HEARD the Prosecutor’s favorable opinion on the disclosure to the public of the Indictment and the Warrant of Arrest and Order for Transfer and Detention; PURSUANT to Rule 28 and Rule 53 of the Rules, HEREBY ORDERS, starting from 15 March 2003, the public disclosure of the Indictment and the Warrant of Arrest and Order for Transfer and Detention of the Accused. Done in Freetown, Sierra Leone this 14th day of March 2003

Judge Benjamin Mutanga Itoe Designated Judge THE TRIAL CHAMBER

Before: Judge Bankole Thompson Presiding Judge, Trial Chamber Designated Judge Pursuant to Rule 28 of the Rules Registrar: Robin Vincent Date: 23 May 2003 The Prosecutor Against: Alex Tamba Brima aka Tamba Alex Brima, aka Gullit (Case No. SCSL-2003-06-PT)

DECISION ON THE PROSECUTOR’S MOTION FOR IMMEDIATE PROTECTIVE MEASURES FOR WITNESSES AND VICTIMS AND FOR NON-PUBLIC DISCLOSURE

Office of the Prosecutor: Defence Counsel: Luc Côté, Chief of Prosecution Terence Terry Esq. Brenda Hollis, Senior Trial Counsel 98 part ii

THE SPECIAL COURT FOR SIERRA LEONE (“the Court”) JUDGE BANKOLE THOMPSON, sitting as a single Judge designated Pursuant to Rule 28 of the Rules of Procedure and Evidence (“the Rules”) on behalf of the Trial Chamber; BEING SEIZED of the Motion by the Offfĳice of the Prosecutor for Immediate Protective Measures for Victims and Witnesses and for Non-Public Disclosure (“the Motion”) and of the “Briefs” (Written Submissions) with attachments in support of the said Motion, fĳiled on the 7th April 2003; CONSIDERING also the Response fĳiled by the Defence Counsel on behalf of the Accused Alex Tamba on 23rd April 2003, to the aforementioned Prosecution’s Motion (“the Response”); CONSIDERING the Prosecutor’s Reply fĳiled on 29th April 2003 to the aforesaid Defence Response (“the Reply”); WHEREAS acting on the Chamber’s Instruction, Court Management Section advised the parties on 29th April 2003 that the Motion, Responses, and Reply would be considered and determined on the “Briefs” (Written Submissions) of the parties ONLY pursuant to Rule 73 of the Rules; COGNISANT OF the Statute of the Court (“the Statute”) particularly Articles 16 and 17 thereof, and specifĳically Rules 53, 54, 73, and 75 of the Rules;

NOTING THE SUBMISSIONS OF THE PARTIES The Prosecution Motion: 1. By the aforementioned Motion, the Prosecutor seeks orders for protective measures for persons who fall into three categories (paragraph 16 of the Motion): (a) Witnesses who presently reside in Sierra Leone and who have not afffĳirma- tively waived their rights to protective measures; (b) Witnesses who presently reside outside Sierra Leone but in other countries in West Africa or who have relatives in Sierra Leone, and who have not afffĳirmatively waived their rights to protective measures; (c) Witnesses residing outside West Africa who have requested protective measures. 2. By the said Motion, the Prosecutor also requests that the Defence be prohibited from disclosing to the public or media any non-public materials which are provided to them as part of the disclosure process. 3. Further, the Prosecutor requests that the persons categorised in paragraph 16 of the Motion and the prohibition as to non-public disclosure sought in paragraph 17 of the Motion be provided protection and efffected respectively by the sought Orders set out below (as contained in paragraph 20 of the Motion): interlocutory decisions – trial chamber 99

(a) An Order allowing the Prosecution to withhold identifying data of the persons the Prosecution is seeking protection for as set out in paragraph 16 or any other information which could lead to the identity of such a person to the Defence until twenty-one days before the witness is to testify at trial; and consequently allowing the Prosecution to disclose any materials provided to the Defence in a redacted form until twenty-one days before the witness is to testify at trial, unless otherwise ordered; (b) An Order requiring that the names and any other identifying information concerning all witnesses, be sealed by the Registry and not included in any existing or future records of the Court; (c) An Order permitting the Prosecution to designate a pseudonym for each witness, which was and will be used for pre-trial disclosure and whenever referring to such witness in the Court proceedings, communications and discussions between the parties to the trial, and the public; it is understood that the Defence shall not make an independent determination of the identity of any protected witness or encourage or otherwise aid any person determine the identity of any such persons; (d) An Order that the names and any other identifying information concerning all witnesses described in paragraph 20 (a), be communicated only to the Victims and Witnesses Unit personnel by the Registry or the Prosecution in accordance with the established procedure and only in order to implement protection measures for these individuals; (e) An Order prohibiting the disclosure to the public or the media of the names and any other identifying data or information on fĳile with the Registry, or any other information which could reveal the identity of witnesses and victims, and this order shall remain in efffect after the termination of the proceedings in this case; (f) An Order prohibiting the Defence from sharing, discussing or revealing, directly or indirectly, any disclosed non-public materials of any sort, or any information contained in any such documents, to any persons or entity other than the Defence; (g) An Order that the Defence shall maintain a log indicating the name, address and position of each person or entity which receives a copy of, or information from, a witness statement, interview report or summary of expected testimony, or any other non-public material, as well as the date of disclosure; and that the Defence shall ensure that the person to whom such information was disclosed follows the order of non-disclosure; (h) An Order requiring the Defence to provide to the Chamber and the Prosecution a designation of all persons working on the defence team who, pursuant to paragraph 20 (f) above, have access to any information referred to in paragraph 20 (a) through 20 (e) above, and requiring the 100 part ii

Defence to advise the Chamber and the Prosecution in writing of any changes in the composition of this Defence team; (i) An Order requiring the Defence to ensure that any member leaving the Defence team remits to the Defence team all disclosed non-public materials; (j) An Order requiring the Defence to return to the Registry, at the conclusion of the proceedings in this case, all disclosed materials and copies thereof, which have not become part of the public record; (k) An Order the Defence Counsel shall make a written request to the Trial Chamber or a Judge thereof, for permission to contact any protected witnesses or any relative of such person, and such request shall be timely served on the Prosecution. At the direction of the Trial Chamber or a Judge thereof, the Prosecution shall contact the protected person and ask for his or her content or the parents or guardian of that person if that person is under the age of 18, to an interview by the Defence, and shall undertake the necessary arrangements to facilitate such contact. The Defence Response: 4. On behalf of the said Alex Tamba Brima, the Defence Counsel states that [he] “cannot truly be opposed to some of the measures envisaged for the protection of witnesses and victims having regard particularly to the true and proper construc- tions of Articles 16 – 17 of the Statute of the Special Court for Sierra Leone and Rule 75 of Rules of Procedure and Evidence” (page 5 of the Response). The Defence Counsel however contends that the measures sought go far beyond what is con- ceivably acceptable within the letter and spirit of the aforesaid Articles and Rule. The position taken by the Defence on behalf of Alex Tamba Brima is summed up at page 8 of the Response thus: The Defence submits most respectfully that the Motion praying for the protective orders ought to be rejected on the following grounds: (i) Case law jurisprudence of the ICTR because the language in Rule 69 and 75 there is highly similar language used in the ICTR and the Rules; (ii) The Prosecution has also attached only one decision rendered the ICTY and has otherwise made heavy mention of the ICTR jurisprudence; (iii) The Prosecution has also not exhibited witness statements showing that threat to their lives and limbs as expressed but rather lay emphasis on the general security situation; (iv) The Prosecution has not further shown in their afffĳirmations in support of the application how the present security situation would afffect witnesses who stay outside Sierra Leone; (v) They have also not shown that objective situation exists as required over and above express fears of witnesses that warrant the grant of such an order; interlocutory decisions – trial chamber 101

(vi) The Prosecution has not supported the statements made in their afffĳir- mations with evidence (such as country report from International human rights organisations, UNAMSIL security update etc.) as to the volatile nature of the security situation in Sierra Leone; (vii) The Prosecution did not take into account the infringements on the rights of the Accused of the wide range of measures sought to protect witnesses and victims; (viii) The Prosecution did not consider other less oppressive measures which could achieve the purpose for which protective measures are sought. The Prosecution Reply: 5. The Prosecution, in its Reply fĳiled on 29th April 2003 to the Response of the Defence in respect of Alex Tamba Brima, submits, inter alia, as follows (paragraphs 22 and 23 of the Reply): Defence Counsel omits very key language when he asserts that the Statute of the Special Court states that the Trial Chamber shall be guided by the jurisprudence of the Supreme Court of Sierra Leone. Article 20 of the Statute states that “The Judges of the Appeals Chamber of the Special Court shall be guided by the decisions of the Appeals Chamber of the International Tribunals for the former Yugoslavia and for Rwanda. In the interpretation and application of the laws of Sierra Leone, they shall be guided by the decisions of the Supreme Court of Sierra Leone.” The Prosecution concurs with the premise which apparently underlies Defence Counsel’s assertion, i.e, the law which guides the Trial Chamber and those who practice before it. However, the Prosecution submits the above quoted language means that, in deciding cases brought under Article 2, 3 and 4 of the Statute, the applicable jurisprudence is that of the international ad hoc tribunals. That is appropriate since those articles encompass internationally recognised crimes, and the body of international law that develops regarding such crimes should be consistent and international in character. However, in deciding cases brought under Article 5 of the Statute, the Court would appropriately be guided by the law as determined by the highest Court of Sierra Leone, the Supreme Court.

AND HAVING DELIBERATED AS FOLLOWS 6. Pursuant to Article 16 of the Statute, the Court is authorized to provide in its Rules for the protection of victims and witnesses. Such protective measures shall include, without being limited to, the protection of a witness’s identity. Rule 75 provides, inter alia, that a Judge or a Chamber may, on its own Motion, or at the request of either party, or of the victims or witnesses concerned, or of the Victims and Witnesses Unit, order appropriate measures to safeguard the privacy and security of victims and witnesses, provided that the measures are consistent with the rights of the Accused. 7. According to Rule 69 of the Rules, under exceptional circumstances, either of the parties may apply to a Judge of the Trial Chamber or the Trial Chamber to 102 part ii order the non-disclosure of the identity of a witness who may be in danger or at risk until the Judge or Chamber otherwise decides. 8. Article 17 of the Statute of the Court sets out the Rights of the Accused including inter alia, the right “to have adequate time and facilities for the preparation of his or her defence and the right to examine, or have examined the witnesses against him or her” As designated Judge, I also take cognisance of Rule 69(C) of the Rules whereby the identity of a witness shall be disclosed in sufffĳicient time before a witness is to be called to allow adequate time for preparation of the Defence. 9. Pre-eminently mindful of the need to guarantee the utmost protection and respect for the rights of the victims and witnesses, and seeking to balance those rights with the competing interests of the public in the administration of justice, of the international community in ensuring that persons accused of violations of humanitarian law be brought to trial on the one hand, and the paramount due process right of the Accused to a fair trial, on the other, I am enjoined to order any appropriate measures for the protection of the victims and witnesses at the pre- trial stage that will ensure a fair determination of the matter before me, deciding the issue on a case-by case basis consistent with internationally recognised standards of due process. Such orders are to take efffect once the particulars and locations of the witnesses have been forwarded to the Victims and Witnesses Support Unit. 10. In determining the appropriateness of the protective measures sought, I have evaluated the security situation afffecting concerned witnesses in the context of the available information attached to the Prosecutor’s “Briefs” (Written Submissions), more particularly the afffĳidavit of Morie Lengor dated 5th March 2003, and the Declaration of Dr. Alan W. White dated 7th April 2003. Despite some formal defects, generalities and unsubstantiated matters, rightly pointed out by the Defence Counsel, in respect of those documents, it is my considered view that, in terms of substance, the combined efffect of those afffĳirmations is to demonstrate, within the bounds of reasonable foreseeability and not absolute certainty, the delicate and complex nature of the security situation in the country and the level of threat from several quarters of the ex-combatant population that participated in the conflict to witnesses and potential witnesses. It is signifĳicant to note that there was no afffĳidavit in opposition. The irresistible inference, therefore, is that such threats may well pose serious problems to such witnesses and the efffectiveness of the Court in the faithful discharge of its international mandate. 11. Concerning the need for the protection of witnesses’ identities, at the pre- trial phase as distinct from the trial phase, I have sufffĳiciently advised myself on the applicable body of jurisprudence. Without meaning to detract from the prec- edential or persuasive utility of decisions of the ICTR and the ICTY, it must be emphasized, that the use of the formula “shall be guided by” in Article 20 of the interlocutory decisions – trial chamber 103

Statute does not mandate a slavish and uncritical emulation, either precedentially or persuasively, of the principles and doctrines enunciated by our sister tribunals. Such an approach would inhibit the evolutionary jurisprudential growth of the Special Court consistent with its own distinctive origins and features. On the contrary, the Special Court is empowered to develop its own jurisprudence having regard to some of the unique and diffferent socio-cultural and juridical dynamics prevailing in the locus of the Court. This is not to contend that sound and logically correct principles of law enunciated by ICTR and ICTY cannot, with necessary adaptations and modifĳications, be applied to similar factual situations that come before the Special Court in the course of adjudication so as to maintain logical consistency and uniformity in judicial rulings on interpretation and application of the procedural and evidentiary rules of international criminal tribunals. 12. Instructive though, from a general jurisprudential viewpoint, some of the decisions of ICTR and ICTY relied upon by both Prosecution and Defence Offfĳice on the subject of delayed disclosure and confĳidentiality of witnesses and victims may be in terms of the principles therein enunciated, the issue is really one of contextual socio-legal perspective. Predicated upon such a perspective, one can reach various equally valid conclusions applying a comparative methodology into: (a) whether the security situation in Sierra Leone can, at this point in time, in relation to Rwanda be objectively characterized as really more or less volatile; (b) whether the security situation in Rwanda during the grant or denial of the protective measures sought in those cases, was more or less volatile than the present security situation in Sierra Leone; or (c) whether there is any logical basis for comparison at all. Evidently, it takes no stretch of the legal imagination to discover that in such matters speculation can be endless and quite fruitless. It depends on one’s analytical or methodological approach. They are not matters that can be determined with any mathematical exactitude. 13. With all due respect to learned Counsel for the Defence, it must be pointed out that the fĳive-fold criteria enunciated by the ICTY in the case of The Prosecutor v. Tadic, IT-4-I-10, Decision on the Prosecutor’s Motion Requesting Protective Measures for Victims and Witnesses, 10th August 1995, cannot logically be applied to the instant Motion. In that case, the Trial Chamber was confronted with a request by the Prosecution to provide anonymity for one of its witnesses in testifying by withholding the identity of the witness from the Accused. A majority of the Trial Chamber held that it had to balance the right of the Accused to a “fair and public trial” against the protection of victims and witnesses. Observing that the right to a “fair trial” was not absolute but was subject to derogation in exceptional circumstances such as a state of emergency and that the situation of on-going conflict in the area where the alleged atrocities took place constituted such exceptional circumstances, the Chamber took a “contextual approach” and held that it was justifĳied in accepting anonymous testimony if: (1) there was real fear for the safety of the witness or his or her family; (2) the testimony of the witness was 104 part ii important to the Prosecution’s case; (3) there was no prima facie evidence that the witness is untrustworthy; (4) the measures were strictly necessary (see May and Wierda, International Criminal Evidence, 2002 at page 282). It is evident that the situation in Tadic concerning that of a witness seeking to testify anonymously and that (as in the instant Motion) of an order for delayed disclosure of identifying data in respect of certain categories of prosecution witnesses at the pre-trial stage are clearly distinguishable both as a matter of fact and law. 14. Which principle, then, is applicable here? The answer is that it is the general principle propounded by the ICTY, in the case of The Prosecutor v. Blaskic, IT- 95-14, Decision on the Application of the Prosecution dated 17th October 1996 Requesting of Protective Measures for Victims and Witnesses, 5th November 1996. It states that: The philosophy which imbues the Statute and Rules of the Tribunal appears clear: the Victims and Witnesses merit protection, even from the Accused, during the preliminary proceedings and continuing until a reasonable time before the start of the trial itself; from that time forth, however, the right of the Accused to an equitable trial must take precedence and require that the veil of anonymity be lifted in his favour, even if the veil must continue to obstruct the view of the public and the media. Applying this general principle to the totality of the afffĳidavit evidence before me, it is my considered view that a reasonable case has been made for the prosecution witnesses herein to be granted at this preliminary stage a measure of anonymity and confĳidentiality. In addition, in matters of such delicacy and sensitivity, it would be unrealistic to expect either the Prosecution or the Defence, at the pre- trial phase, to carry the undue burden of having each witness narrate in specifĳic terms or document the nature of his or her fears as to the actual or anticipated threats or intimidation. Such an approach would frustrate, if not, (using a familiar legal metaphor) drive a horse and coach through the entire machinery created by the Founding Instruments of the Court and its Rules for protection of witnesses and victims. 15. Further, as designated Judge under Rule 28 of the Rules, my judicial evaluation of the measures requested by the Prosecution pursuant to Articles 16 and 17 of the Statute and Rules 53, 54, and 75 of the Rules, is also predicated upon the reasoning that even though the Court must, in such matters, seek to balance the right of the Accused to a fair and public trial with the interest of the witnesses in being given protection, such a right is subject to derogating exceptional circumstances (Article 17(2) of the Statute) and that the existing context of the security situation in Sierra Leone does justify, at this point in time, delaying the disclosure of the identities of witnesses during the pre-trial phase. 16. As regards the 21 (twenty-one) day time limit prayed for by the Prosecution in sought Order (a), despite the existence of some instructive ICTY and ICTR interlocutory decisions – trial chamber 105 decisions supporting the 21 day rule limitation for disclosure, it is my considered view that there is no legal logic or norm compelling an inflexible adherence to this rule. In the context of the security situation in Sierra Leone and in the interest of justice, one judicial option available to me, at this stage, in trying to balance the interest of the victims and witnesses for protection by a grant of anonymity and confĳidentiality with the pre-eminent interest of efffectively protecting the Accused’s right to a fair and public trial is to enlarge the time frame for disclosure beyond 21 (twenty-one) days to 42 (forty-two) days. And I so order.

AND BASED ON THE FOREGOING DELIBERATION, I HEREBY GRANT THE PROSECUTION’S MOTION AND IN PARTICULAR SOUGHT ORDERS (a) TO (k) as specifĳied and particularised therein with the necessary modifĳication to Order (a) in respect of the time frame for disclosure prior testimony at trial, which said ORDERS, for the sake of completeness, are set out in extenso in the annexure hereto.

Done at Freetown 23rd May 2003

Judge Bankole Thompson Presiding Judge, Trial Chamber Designated Judge Pursuant to Rule 28 of the Rules 106 part ii

ANNEX TO THE DECISION ON THE PROSECUTOR’S MOTION FOR IMMEDIATE PROTECTIVE MEASURES FOR WITNESSES AND VICTIMS AND FOR NON-PUBLIC DISCLOSURE: ORDERS FOR IMMEDIATE PROTECTIVE MEASURES FOR WITNESSES AND VICTIMS AND FOR NON PUBLIC DISCLOSURE THE SPECIAL COURT FOR SIERRA LEONE (the “Special Court”) PRESIDED OVER by Judge Bankole Thompson designated in accordance with provisions of Rule 28 of the Rules of Procedure and Evidence (“the Rules”); BEING SEIZED of the Motion for Immediate Protective Measures for Witnesses and Victims and for Non-Public Disclosure fĳiled by the Prosecutor on 7th April 2003 (“the Motion”) for an order requesting various protective measures to safeguard the security and privacy of victims, witnesses and to safeguard the integrity of the prosecution’s evidence and of these proceedings; CONSIDERING that non-public material is disclosed to the Accused primarily for the purpose of allowing him to prepare to meet the charges against him and for no other purpose; CONSIDERING FURTHER that the Designated Judge takes very seriously the interests and concerns of victims and witnesses, is genuinely concerned for their safety, protection and welfare, is authorised to take all appropriate measures to ensure their protection and privacy, and is judicially obliged to safeguard non- public materials provided to the Accused in order to enable him to prepare for trial, where the interests of justice so demand; CONSIDERING ALSO that it is of paramount importance to protect the right of the Accused to a fair and public trial and that only in exceptional circumstances should such a right be derogated from; HAVING METICULOUSLY EXAMINED the merits of the submissions by the Defence in response to the said Prosecution Motion and sought to balance the interests of the victims and witnesses for protection and privacy with the right of the Accused to fair trial in the context of the specifĳic measures requested; CONVINCED that despite the Defence submissions, in the specifĳic context of this case, there is clear and convincing evidence submitted by the Prosecution for protective measures for witnesses and victims and for non-public disclosure of the material in this case at the pre-trial stage; NOTING that Articles 17(2) and 16(4) of the Statute of the Special Court for Sierra Leone (“the Statute”) envisage that the Trial Chamber shall, where expedient in the interests of justice, issue appropriate orders for the protection of victims and witnesses; interlocutory decisions – trial chamber 107

COGNISANT of the provisions of Rules 69 and 75 of the Rules concerning the protection of witnesses; ACTING IN ACCORDANCE WITH Articles 16 and 17 of the Statute and pursuant to Rules 53, 54, 56, 69, and 75 of the Rules; I HEREBY GRANT THE PROSECUTION MOTION AND ORDER as follows: (a) The Prosecution may withhold identifying data of the persons the Prosecution is seeking protection as set forth in paragraph 16 of the Motion and any other information which could lead to the identity of such a person to the Defence, until 42 (forty-two) days before the witness is to testify at trial; and may not disclose any materials provided to the Defence in a redacted form until 42 (forty-two) days before the witness is to testify at trial, unless otherwise ordered; (b) That the names and any other identifying information concerning all witnesses be sealed by the Registry and not included in any existing or future records of the Court; (c) The Prosecution may designate a pseudonym for each witness, which was and will be used for pre-trial disclosure and whenever referring to such witness in Court proceedings, communications and discussions between the parties to the trial, and the public; it is understood that the Defence shall not make an independent determination of the identity of any protected witness or encourage or otherwise aid any person to attempt to determine the identity of any such persons; (d) That the names and any other identifying information concerning all witnesses described in order (a) be communicated only to the Victims and Witnesses Unit personnel by the Registry or the Prosecution in accordance with established procedure and only in order to implement protection measures for these individuals; (e) That the names and any other identifying data or information on fĳile with the Registry, or any other information which could reveal the identity of Witnesses and Victims, shall not be disclosed to the public or the media and this order shall remain in efffect after the termination of the proceedings in this case; (f) That the Defence shall not share, discuss or reveal, directly or indirectly, any disclosed non-public materials of any sort, or any information contained in any such documents, to any person or entity other than the Defence; (g) That the Defence shall maintain a log indicating the name, address and position of each person or entity which receives a copy of, or information from, a witness statement, interview report or summary of expected testimony, or any other non-public material, as well as the date of disclosure; 108 part ii

and that the Defence shall ensure that the person to whom such information was disclosed follows the order of non-public disclosure; (h) That the Defence provide to the Chamber and the Prosecution a designation of all persons working on the Defence team who, pursuant to order (f) above, have access to any information referred to in order (a) through (e) above (reference herein being made to the Motion), and requiring the Defence to advise the Chamber and the Prosecution in writing of any changes in the composition of this Defence team; (i) That the Defence ensure that any member leaving the Defence team remits to the Defence team all disclosed non-public materials; (j) That the Defence return to the Registry, at the conclusion of the proceedings in this case, all disclosed materials and copies thereof, which have not become part of the public record; (k) That the Defence Counsel make a written request to the Trial Chamber or a Judge thereof, for permission to contact any protected witnesses or any relative of such person, and such request shall be timely served on the Prosecution. At the direction of the Trial Chamber or a Judge thereof, the Prosecution shall contact the protected person and ask for his or her consent or the parents or guardian of that person if that person is under the age of 18, to an interview by the Defence, and shall undertake the necessary arrangements to facilitate such contact. HEREBY FURTHER ORDER that consistent with Order (a) above, the Prosecutor shall disclose the names and unredacted statements of the witnesses to the Defence in at least 42 (forty-two) days before the witness is to testify at trial to allow the Defence sufffĳicient and reasonable time to prepare efffectively for trial, having regard to the gravity of the charges against the Accused persons and the magnitude of the Prosecutor’s allegations against them. For the purpose of this Order: (a) “the Prosecution” means and includes the Prosecutor of the Special Court for Sierra Leone (the Court) and his stafff; (b) “the Defence” means and includes the Accused, the Defence counsel and their immediate legal assistants and stafff, and others specifĳically assigned by the court to the Accused’s trial Defence team in conformity with Rule 44; (c) “witnesses” means and includes witnesses and potential witnesses of the Prosecution; (d) “protected witnesses” means and includes the witnesses in the categories as set forth in paragraph 16 of the Motion; (e) “victims” means and includes victims of sexual violence, torture, as well as all persons who were under the age of 15 at the time of the alleged commission of the crime; interlocutory decisions – trial chamber 109

(f) “the public” means and includes all persons, governments, organisations, entities, clients, associations, and groups, other than the Judges of the Court and the stafff of the Registry, the Prosecution, the Defence, as defĳined above. “The public” specifĳically includes, without limitation, family, friends and associates of the Accused, and the Defence in other cases or proceedings before the court; (g) “the media” means and includes all video, audio, print media personnel, including journalists, authors, television, and radio personnel, their agents and representatives.

Done at Freetown, 23rd May 2003

Judge Bankole Thompson Presiding Judge, Trial Chamber Designated Judge Pursuant to Rule 28 of the Rules

THE TRIAL CHAMBER

Before: Judge Pierre Boutet Registrar: Mr. Robin Vincent Date: 28 May 2003

THE PROSECUTOR Against BRIMA BAZZY KAMARA also known as IBRAHIM BAZZY KAMARA also known as ALHAJI IBRAHIM KAMARA Case No. SCSL-2003-10-I

DECISION APPROVING THE INDICTMENT, THE WARRANT OF ARREST, And ORDER FOR NON-DISCLOSURE

Office of the Prosecutor: Desmond de Silva, QC 112 part ii

THE SPECIAL COURT FOR SIERRA LEONE (the Special Court), SITTING AS Judge Pierre Boutet, designated pursuant to Rule 28 of the Rules of Procedure and Evidence (“the Rules”); HAVING RECEIVED on 26th May 2003 from the Registrar pursuant to Rule 47(D) of the Rules, the enclosed Indictment and accompanying material against BRIMA BAZZY KAMARA also known as IBRAHIM BAZZY KAMARA also known as ALHAJI IBRAHIM KAMARA, a citizen of Sierra Leone, born on 7 May 1968 at Wilberforce Village, Western Area, Republic of Sierra Leone, hereby accused of Crimes Against Humanity, Violations of Article 3 Common to the Geneva Conven- tions and Additional Protocol II, and Other Serious Violations of International Humanitarian Law; CONSIDERING the requirements of Rule 47(E) of the Rules; BEING SATISFIED from the material tendered by the Prosecutor that the indictment charges the suspect with crimes within the jurisdiction of the Special Court, and that the allegations in the Prosecution’s case summary would, if proven, amount to crimes as particularised in the indictment; HEREBY APPROVES, pursuant to Rule 47 of the Rules, the Indictment submitted by the Prosecutor against the Accused in respect to each and every of the seventeen (17) counts; CONSIDERING the Prosecutor’s request that a Warrant of Arrest and Order for Transfer and Detention be issued against BRIMA BAZZY KAMARA; CONSIDERING Article 17(2) of the Agreement between the United Nations and the Government of Sierra Leone on the Establishment of the Special Court for Sierra Leone (“the Agreement”); CONSIDERING the Special Court Agreement 2002 (Ratifĳication) Act 2002, Section 20, which states that an order of the Special Court shall have the same force or efffect as if it had been issued by a Judge, Magistrate or Justice of the Peace of a Sierra Leone court; TAKES NOTE AND GRANTS the Prosecutor’s request that a Warrant of Arrest and Order for Transfer and Detention be issued against BRIMA BAZZY KAMARA; CONSIDERING the Application for non-disclosure by the Prosecutor made pursuant to Rule 53 of the Rules; BEING SATISFIED that in the circumstances an Order of non disclosure of the indictment, or any part thereof, or of all and any part of any particular document or information as submitted by the Prosecutor is required in the interest of justice; interlocutory decisions – trial chamber 113

DO HEREBY ORDER, pursuant to Rule 53 of the Rules that there be no public disclosure of the Indictment, or any part thereof, or of all and any part of any particular document or information pertaining to the Indictment, the Warrant of Arrest and Order for Transfer and Detention until further order by the Special Court; DIRECTS the Registrar, in accordance with Rule 55(B) of the Rules, to serve on the Government of Sierra Leone the following: 1. this Decision of the Special Court; 2. the Warrant of Arrest and Order for Transfer and Detention of BRIMA BAZZY KAMARA; 3. the Order for Non-Public Disclosure of the Indictment. Done in Freetown, this 28th day of May 2003.

Judge Pierre Boutet

THE TRIAL CHAMBER

Before: Judge Pierre Boutet Registrar: Mr. Robin Vincent Date: 28 May 2003

THE PROSECUTOR Against BRIMA BAZZY KAMARA also known as IBRAHIM BAZZY KAMARA also known as ALHAJI IBRAHIM KAMARA Case No. SCSL-2003-10-I

WARRANT OF ARREST AND ORDER FOR TRANSFER AND DETENTION

Office of the Prosecutor: Desmond De Silva, QC 116 part ii

THE SPECIAL COURT FOR SIERRA LEONE (the Special Court), SITTING AS Judge Pierre Boutet designated pursuant to Rule 28 of the Rules of Procedure and Evidence (the Rules); CONSIDERING that the Indictment against BRIMA BAZZY KAMARA also known as IBRAHIM BAZZY KAMARA also known as ALHAJI IBRAHIM KAMARA, a citizen of Sierra Leone, born 7 May 1968 at Wilberforce Village, Western Area, Republic of Sierra Leone, who is accused 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, was reviewed and approved by the Special Court on 28th May 2003; CONSIDERING that the Special Court has approved the request of the Prosecutor for the issuance of a Warrant of Arrest and an Order for Transfer and Detention; CONSIDERING the Application for non-disclosure by the Prosecutor made pursuant to Rule 53 of the Rules; HEREBY ORDERS THE REGISTRAR OF THE SPECIAL COURT (A) to address the Warrant of Arrest, Decision Approving the Indictment, the Approved Indictment of the Accused and a Statement of the Rights of the Accused to the national authorities of Sierra Leone in accordance with Rule 55 of the Rules made on 28th May 2003; (B) to cause to be served on the Accused, at the time of his arrest, or as soon as is possible thereafter, in English or have read to him in a language he understands, a certifĳied copy of the Warrant of Arrest, a certifĳied copy of the Indictment, a statement of the rights of the Accused and to caution the Accused that any statement made by him shall be recorded and may be used as evidence against him in coordination with the national authorities of the State concerned; (C) to remand the Accused into the custody of the Special Court Detention Facility or such other Detention Facility as determined by the President in accordance with Rule 57 of the Rules;

HEREBY ORDERS THE RELEVANT AUTHORITIES OF THE GOVERNMENT OF SIERRA LEONE (A) to search for and arrest the Accused; (B) to have a member of the Offfĳice of the Prosecutor present from the time of arrest; (C) to transfer the Accused to the custody of the Special Court, or to such other place as the President of the Special Court may decide, without delay. The interlocutory decisions – trial chamber 117 transfer shall be arranged between the relevant national authorities of the Government of Sierra Leone and the Registrar of the Special Court; (D) to assist and facilitate the Offfĳice of the Prosecutor, at any location, in the search for and seizure of all evidence related to the crimes alleged to have been committed by the Accused; (E) to identify and locate assets owned by the Accused located within the territory of Sierra Leone and adopt provisional measures to freeze such assets without prejudice to the rights of third parties; (F) not to disclose to the public, including the media or any public record, the existence of the Indictment and this Warrant of Arrest, or any part thereof, or of all or any part of any particular document or information pertaining to the Indictment and this Warrant for Arrest and Order for Transfer and Detention until further order of the Special Court; (G) if the Government of Sierra Leone is unable to immediately execute the present Warrant of Arrest and Order for Transfer and Detention, as requested, the Government of Sierra Leone is requested to indicate the reason for its inability to give efffect thereto. Done in Freetown, this 28th day of May 2003.

Judge Pierre Boutet

THE TRIAL CHAMBER

Before: Judge Bankole Thompson Designated Judge Registrar: Robin Vincent Date: 3 June 2003 PROSECUTOR Against Brima Bazzy Kamara aka Ibrahim Bazzy Kamara aka Alhaji Ibrahim Kamara (Case No.SCSL-2003-10-I)

ORDER FOR THE DISCLOSURE OF THE INDICTMENT AND THE WARRANT OF ARREST AND ORDER FOR TRANSFER AND DETENTION

Office of the Prosecutor: Defence Office: Luc Côté, Chief of Prosecution John R.W.D. Jones, Acting Chief of Defence Offfĳice Claire Carlton-Hanciles, Defence Associate Ibrahim Yillah, Defence Associate Haddijatu Kah-Jallow, Defence Associate Sam Scratch, Defence Intern 120 part ii

THE SPECIAL COURT FOR SIERRA LEONE (the Court), SITTING AS Judge Pierre Boutet, designated pursuant to Rule 28 of the Rules of Procedure and Evidence (“the Rules”); CONSIDERING the Indictment against Brima Bazzy Kamara (“the Accused”) reviewed and approved by Judge Pierre Boutet on the 28th May 2003; CONSIDERING the Warrant of Arrest and Order for Transfer and Detention of the Accused granted on the 28th May 2003; CONSIDERING the Decision Approving the Indictment, the Warrant of Arrest, and Order for Non-Disclosure granted on the 28th May, 2003; CONSIDERING the transfer of the Accused to the custody of the Special Court on the 29th May 2003; CONSIDERING that the initial appearance of the Accused under Rule 61 of the Rules will take place on the 4th June 2003; HAVING HEARD the Prosecutor’s favorable opinion on the disclosure to the public of the Indictment and the Warrant of Arrest and Order for Transfer and Detention; TAKING INTO ACCOUNT the necessity of having a public and transparent initial appearance; PURSUANT to Rule 28, 53 and 54 of the Rules, HEREBY ORDERS, starting from the 3rd June 2003, the public disclosure of the Indictment, of the Decision Approving the Indictment, the Warrant of Arrest, and Order for Non-Disclosure and of the Warrant of Arrest and Order for Transfer and Detention of the Accused. Done in Freetown, Sierra Leone this 3rd day of June 2003.

Judge Pierre Boutet Designated Judge THE TRIAL CHAMBER

Before: Judge Pierre Boutet, Designated Judge Registrar: Robin Vincent Date: 16 September 2003 PROSECUTOR Against Santigie Borbor Kanu, also know as 55, also known as Five-Five, also known as Santigie Khanu, also known as Santigie Kanu, also known as S.B. Khanu, also known as S.B. Kanu, also known as Santigie Bobson Kanu, also known as Borbor Santigie Kanu (Case No.SCSL-2002-13-I)

DECISION APPROVING THE INDICTMENT, THE WARRANT OF ARREST AND ORDER FOR TRANSFER AND DETENTION AND ORDER FOR NON-PUBLIC DISCLOSURE

Office of the Prosecutor: David Crane, Prosecutor Luc Côté, Chief of Prosecutions 122 part ii

THE SPECIAL COURT FOR SIERRA LEONE (“the Special Court”), SITTING AS Judge Pierre Boutet, designated pursuant to Rule 28 of the Rules of Procedure and Evidence (“the Rules”); HAVING RECEIVED on the 15th day of September 2003 from the Prosecutor pursuant to Rule 47 of the Rules the enclosed indictment and accompanying material against Santigie Borbor Kanu, also known as 55, also known as Five-Five, also known as Santigie Khanu, also known as Santigie Kanu, also known as S.B. Khanu, also known as S.B. Kanu, also known as Santigie Bobson Kanu, also known as Borbor Santigie Kanu a citizen of Sierra Leone born in March 1965 in Maforki Chiefdom, Port Loko District, Republic of Sierra Leone, or in Freetown, Republic of Sierra Leone hereby accused of Crimes Against Humanity, Violations of Article 3 Common to the Geneva Convention and Additional Protocol II, and Other Serious Violations of International Humanitarian Law; CONSIDERING the requirements under Rule 47(E) of the Rules; BEING SATISFIED from a review of the Indictment and the material tendered by the Prosecutor that the indictment charges Santigie Borbor Kanu, also known as 55, also known as Five-Five, also known as Santigie Khanu, also known as Santigie Kanu, also known as S.B. Khanu, also known as S.B. Kanu, also known as Santigie Bobson Kanu, also known as Borbor Santigie Kanu with crimes within the jurisdiction of the Special Court, and that the allegations in the Prosecutor’s case summary would, if proven, amount to crimes as particularised in the indictment; HEREBY APPROVES, pursuant to Rule 47 of the Rules, the Indictment submitted by the Prosecutor against Santigie Borbor Kanu, also known as 55, also known as Five-Five, also known as Santigie Khanu, also known as Santigie Kanu, also known as S.B. Khanu, also known as S.B. Kanu, also known as Santigie Bobson Kanu, also known as Borbor Santigie Kanu (“the Accused”) in respect to each and every of the seventeen (17) counts contained in the Indictment; AND FURTHER CONSIDERING the Prosecutor’s request that a warrant of arrest and order for transfer and detention be also issued against “the Accused”; TAKES NOTE AND GRANTS the Prosecutor’s request that a warrant of arrest and order for transfer and detention be issued against “the Accused”; CONSIDERING ARTICLE 17(2) of the Agreement between the United Nations and the Government of Sierra Leone on the Establishment of the Special Court for Sierra Leone (“the Agreement”); interlocutory decisions – trial chamber 123

CONSIDERING ALSO the Special Court Agreement 2002 (Ratifĳication) Act 2002, section 20, which states that an order of the Special Court shall have the same force or efffect as if it had been issued by a Judge, Magistrate, Justice of the Peace of a Sierra Leone Court; CONSIDERING the application for non-disclosure made by the Prosecutor pursuant to Rule 53 of the Rules; BEING SATISFIED upon the information provided by the Prosecutor that in the present circumstances an order for the non disclosure of the Indictment or part thereof and of all or any part of any particular document or information as submitted by the Prosecutor is required in the interests of justice; HEREBY ORDERS, pursuant to Rule 53 of the Rules, that there be no public disclosure of the Indictment or part thereof and of all or any part of any information pertaining to the Indictment, the Warrant of Arrest and Order for Transfer and Detention until further order of the Special Court; HEREBY DIRECTS the Registrar, pursuant to Rule 52 and 55(B) of the Rules, to serve on “the Accused” and on the Government of Sierra Leone the following documents: 1. The Decision herein Approving the Indictment; 2. The Approved Indictment; 3. The Warrant of Arrest and Order for Transfer and Detention of Santigie Borbor Kanu, also known as 55, also known as Five-Five, also known as Santigie Khanu, also known as Santigie Kanu, also known as S.B. Khanu, also known as S.B. Kanu, also known as Santigie Bobson Kanu, also known as Borbor Santigie Kanu; 4. The Order herein for the Non-Public Disclosure of the Indictment, the Warrant of Arrest and Order for Transfer and Provisional Detention. Done in Freetown, this 16th day of September 2003

Judge Pierre Boutet Designated Judge 124 part ii

WARRANT OF ARREST AND ORDER FOR TRANSFER AND DETENTION THE SPECIAL COURT FOR SIERRA LEONE (“the Special Court”), SITTING AS Judge Pierre Boutet, designated pursuant to Rule 28 of the Rules of Procedure and Evidence (“the Rules”); CONSIDERING that an Indictment has been reviewed and approved on the 16th day of September 2003 against Santigie Borbor Kanu, also known as 55, also known as Five-Five, also known as Santigie Khanu, also known as Santigie Kanu, also known as S.B. Khanu, also known as S.B. Kanu, also known as Santigie Bobson Kanu, also known as Borbor Santigie Kanu (“the Accused”), a citizen of Sierra Leone born in March 1965 in Maforki Chiefdom, Port Loko District, Republic of Sierra Leone, or in Freetown, Republic of Sierra Leone, charging him with Crimes Against Humanity, Violations of Article 3 Common to the Geneva Convention and Additional Protocol II, and Other Serious Violations of International Humanitarian Law; CONSIDERING also that on the 16th day of September an Order for the Non- Disclosure of the Indictment, or part thereof, and of all or any part of any information pertaining to the Indictment, the Warrant of Arrest and Order for Transfer and Detention until further order of the Special Court was issued; HEREBY ISSUES this Warrant of Arrest and Order for Transfer and Detention of “the Accused” AND, CONSEQUENTLY ORDERS TO THE REGISTRAR OF THE SPECIAL COURT: (A) To address, pursuant to Rule 55 of the Rule, this Warrant of Arrest and Order for Transfer and Detention, the Decision Approving the Indictment, the Approved Indictment against Santigie Borbor Kanu, also known as 55, also known as Five-Five, also known as Santigie Khanu, also known as Santigie Kanu, also known as S.B. Khanu, also known as S.B. Kanu, also known as Santigie Bobson Kanu, also known as Borbor Santigie Kanu (“the Accused”) and a Statement of the Rights of the Accused to the National Authorities of Sierra Leone; (B) To cause to be served on “the Accused,” at the time of his arrest, or as soon as possible thereafter, in English or have read to him in a language he understands, a certifĳied copy of the Warrant of Arrest and Order for Transfer and Detention, a certifĳied copy of the Indictment, a certifĳied copy of the Decision Approving the Indictment and a statement of the rights of the Accused and to caution him that any statement made by him shall be recorded and may be used as evidence against him in coordination with the National Authorities; interlocutory decisions – trial chamber 125

(C) To remand “the Accused” into the custody of the Special Court Detention Facility or such other detention facility as determined by the President in accordance with Rule 57.

RESPECTFULLY ORDERS TO THE RELEVANT AUTHORITIES OF THE REPUBLIC OF SIERRA LEONE: (A) To search for and arrest “the Accused”; (B) To arrange with the Registrar of the Special Court for the transfer “the Accused” to the custody of the Special Court and to transfer “the Accused” without delay; (C) To assist and facilitate the Offfĳice of the Prosecutor, at any location, in the search for and seizure of all evidence related to the crimes alleged to have been committed by “the Accused”; (D) To identify and locate assets owned by “the Accused” located within the territory of Sierra Leone and adopt provisional measures to freeze such assets without prejudice to the rights of third parties; (E) To not disclose to the public, including the media or any public record, the existence of the Indictment and this Warrant of Arrest, or any part thereof or information pertaining to the Indictment and this Warrant of Arrest until further order of the Special Court; In case of inability of The Government of Sierra Leone to immediately execute the present Warrant of Arrest and Order for Transfer, The Government of Sierra Leone is requested to indicate the reasons thereof. Done in Freetown, this 16th day of September 2003.

Judge Pierre Boutet Designated Judge

THE TRIAL CHAMBER

Before: Judge Pierre Boutet, Designated Judge Registrar: Robin Vincent Date: 19 September 2003 PROSECUTOR Against Santigie Borbor Kanu, also know as 55, also known as Five-Five, also known as Santigie Khanu, also known as Santigie Kanu, also known as S.B. Khanu, also known as S.B. Kanu, also known as Santigie Bobson Kanu, also known as Borbor Santigie Kanu (Case No.SCSL-2003-13-I)

ORDER FOR DISCLOSURE OF THE INDICTMENT, THE WARRANT OF ARREST AND ORDER FOR TRANSFER AND DETENTION

Office of the Prosecutor: Defence Office: David Crane, Prosecutor Sylvain Roy, Acting Chief Luc Côté, Chief of Prosecutions 128 part ii

THE SPECIAL COURT FOR SIERRA LEONE (“the Special Court”), SITTING AS Judge Pierre Boutet, designated pursuant to Rule 28 of the Rules of Procedure and Evidence (“the Rules”); CONSIDERING that the Indictment against Santigie Borbor Kanu, also known as 55, also known as Five-Five, also known as Santigie Khanu, also known as Santigie Kanu, also known as S.B. Khanu, also known as S.B. Kanu, also known as Santigie Bobson Kanu, also known as Borbor Santigie Kanu (“the Accused”) was reviewed and approved by myself on the 16th day of September 2003; CONSIDERING the Decision Approving the Indictment, the Warrant of Arrest and Order for Transfer and Detention and Order for Non-Public Disclosure of the 16th day of September 2003 (“the Decision”); CONSIDERING the Warrant of Arrest and Order for Transfer and Detention of “the Accused” issued on the 16th day of September 2003; CONSIDERING that “the Decision” provided, inter alia, for the non-disclosure of the Indictment or part thereof and of all or any part of any information pertaining to the Indictment, the Warrant of Arrest and Order for Transfer and Detention until further order of the “Special Court”; HAVING RECEIVED on the 18th day of September 2003 a request from the Prosecution for the public disclosure of the Indictment against “the Accused,” and of the Warrant of Arrest and Order for Transfer and Detention; HAVING BEEN INFORMED by the Prosecution that “the Accused” has been arrested and transferred to the detention unit of “the Special Court” and that the non-disclosure of the Indictment, Warrant of Arrest and Order for Transfer and Detention is no longer justifĳied; CONSIDERING that it would be in the public interest to now proceed with such disclosure; NOW THEREFORE, PURSUANT to Rules 52 and 54 of “the Rules,” HEREBY ORDERS the public disclosure of the Indictment against “the Accused,” of the Warrant of Arrest and Order for Transfer and Detention, and of the Decision Approving the Indictment, the Warrant of Arrest and Order for Transfer and Detention and Order for Non-Public Disclosure; interlocutory decisions – trial chamber 129

The additional material supporting the Indictment shall not be disclosed to the public until further order of “the Special Court.” Done in Freetown, this 19th day of September 2003

Judge Pierre Boutet Designated Judge

THE TRIAL CHAMBER

Before: Judge Bankole Thompson, Presiding Judge Judge Pierre Boutet Judge Benjamin Mutanga Itoe Registrar: Robin Vincent Date: 9 October 2003 PROSECUTOR Against Brima Bazzy Kamara (Case No. SCSL-2003-10-PT)

ORDER PURSUANT TO RULE 72(E) APPLICATION BY BRIMA BAZZY KAMARA IN RESPECT OF JURISDICTION AND DEFECTS IN THE INDICTMENT

Office of the Prosecutor: Defence Counsel: Luc Côté, Chief of Prosecutions Ken Fleming, Q.C. 132 part ii

THE SPECIAL COURT FOR SIERRA LEONE (“the Special Court”) SITTING as the Trial Chamber (“the Chamber”), composed of Judge Bankole Thompson, Presiding Judge, Judge Pierre Boutet, and Judge Benjamin Mutanga Itoe; SEIZED of the Application by Brima Bazzy Kamara in Respect of Jurisdiction and Defects in the Indictment, fĳiled on the 22nd day of September 2003 (“the Application”), in relation to the criminal suit against Brima Bazzy Kamara (“the Accused”); CONSIDERING the Prosecution’s Response to “the Application” fĳiled on the 29th day of September 2003 (“the Response”); CONSIDERING that the Defence has not exercised its right to fĳile a reply to the “Response” within the time limits prescribed by Rule 7 of “the Rules”; CONSIDERING the entire provisions of Rule 72 of the Rules of Procedure and Evidence (“the Rules”); CONSIDERING, in particular, the provisions of Rule 72(E) of “the Rules” which state that “the Chamber” shall refer to the Appeals Chamber for a determination as soon as practicable any preliminary motion which raises a serious issue relating to jurisdiction; CONSIDERING that the Indictment charges “the Accused” on several counts for Crimes Against Humanity, punishable under Article 2 of the Statute of the Special Court (“the Statute”), Violations of Article 3 Common to the Geneva Conventions and of Additional Protocol II, punishable under Article 3 of “the Statute,” and of Other Serious Violations of International Humanitarian Law, punishable under Article 4 of “the Statute”; CONSIDERING that “the Accused” contends that the Special Court Agreement 2002 (Ratifĳication) Act (“the Act of 2002”), because it is a “Sierra Leonean Act,” must be interpreted pursuant to the Constitution of Sierra Leone; CONSIDERING that “the Accused,” in light of the above, contends that the Indictment against “the Accused” is invalid in so far as the Prosecutor David Crane is not a prosecutor pursuant to “Sierra Leonean law,” the approval of the Indictment was not made in the course of a public hearing and Judge Boutet, who confĳirmed the said Indictment, was not appointed pursuant to the Constitution of Sierra Leone; CONSIDERING that “the Accused” further argues that the crimes defĳined in Articles 2, 3 and 4 of “the Statute,” adopted into “Sierra Leonean law” by “the Act of 2002,” offfend the Constitution of Sierra Leone in so far as the said “Act of 2002” purports to create liability for punishment prior to its passing and that, therefore, interlocutory decisions – trial chamber 133 allegations in the Indictment prior to the passing of “the Act of 2002” should be struck out; CONSIDERING that “the Accused” also recalls that a general amnesty was granted by Article IX of the Lomé Peace Agreement in respect of crimes committed in Sierra Leone pre-dating the 7th day of July 1999, and argues that the disclaimer by the Special Representative of the United Nations issued upon signing of the said Agreement, according to which no amnesty would be granted in respect of international criminal law, does not create law in so far as it was not adopted by the parties to the said Agreement; CONSIDERING that, in light of the above, “the Accused” concludes that the Government of Sierra Leone cannot ignore its obligations under the Lomé Peace Agreement and that the latter has full force and efffect in respect of the Indict- ment against “the Accused,” and requests, therefore, the relevant counts in the Indictment to be struck out; NOW THEREFORE, THE CHAMBER, PURSUANT TO RULE 72(E) OF “THE RULES,” FINDS that the foregoing submissions raise a serious issue relating to the jurisdiction of “the Special Court” to try “the Accused” on all the counts of the Indictment that have been issued against him; REFERS this “Application,” together with the “Response,” to the Appeals Chamber of “the Special Court” for determination; ORDERS that the reference of this “Application” to the Appeals Chamber shall not operate as a stay of the trial of “the Accused”;

Done in Freetown, this 9th day of October 2003 The Trial Chamber

Judge Bankole Thompson Presiding Judge

THE TRIAL CHAMBER

Before: Judge Pierre Boutet, Designated Judge Registry: Robin Vincent Decision of: 15 October 2003 The Prosecutor against Santigie Kanu (Case No. SCSL-2003-13-PT)

DECISION ON THE URGENT REQUEST FOR INTERIM MEASURES UNTIL APPROPRIATE PROTECTIVE MEASURES ARE IN PLACE

Office of the Prosecutor: Defence Counsel: Luc Côté, Chief of Prosecutions Geert-Jan Knoops, Defence Counsel Robert Petit, Senior Trial Counsel Boi-Tia Stevens, Assistant Trial Counsel 136 part ii

THE SPECIAL COURT FOR SIERRA LEONE (“the Special Court”), SITTING as Judge Pierre Boutet, Designated pursuant to Rule 28 of the Rules of Procedure and Evidence (“the Rules”); BEING SEIZED of the Prosecution Motion for Immediate Protective Measures for Witnesses and Victims and for Non-public Disclosure and Urgent Request for Interim Measures Until Appropriate Protective Measures are in Place (“the Motion”), fĳiled on the 30th day of September 2003; CONSIDERING that the Prosecution, pursuant to Rule 66(A)(i) of “the Rules” identifĳies the 23rd day of October 2003 as the expiration date of its disclosure obligations towards the Defence; CONSIDERING that, pending deliberation and appropriate ruling on “the Motion,” the Prosecution has grave concerns pertaining to the safety of witnesses and their willingness to testify and in addition, the Prosecution is also concerned that the integrity of these proceedings will be substantially jeopardised if witness’ identities and statements are prematurely disclosed under circumstances in which they cannot be protected; CONSIDERING that, as interim measure the Prosecution requests: a) that the Designated Judge or Trial Chamber permit the transmission of the disclosure materials under Rule 66(A) of “the Rules” to the Registrar and; b) that the Registrar keep the disclosure materials under seal until appropriate measures are in place; Or in the alternative, c) the Prosecution requests the suspension of its disclosure obligation under Rule 66(A)(i) of “the Rules” until protective measures are ordered; TAKING NOTE of the Defence Response to “the Motion” of the 8th day of October 2003; CONSIDERING that deliberation of “the Motion” is still pending; CONSIDERING that the Initial Appearance of Santigie Kanu took place on the 23rd day of September 2003; CONSIDERING the Memorandum from the Registrar on a Practice Direction for Disclosure by the Prosecutor, issued on the 10th day of April 2003; CONSIDERING the Statute of “the Special Court,” in particular Articles 16 and 17 thereof, and Rules 7, 53, 54, 66, 68, 69 and 75 of “the Rules.” interlocutory decisions – trial chamber 137

AFTER HAVING DELIBERATED 1. Rule 66(A)(i) of “the Rules” provides that, within 30 days of the Initial Appearance of an Accused, the Prosecution shall disclose to the Defence copies of the statements of all witnesses whom he intends to call to testify and all evidence to be presented pursuant to Rule 92bis of “the Rules” at Trial. 2. In addition, Rule 68(B) of “the Rules” provides that, within the same time limit, the Prosecution shall also disclose to the Defence the existence of any known evidence which tends to suggest the innocence of the Accused, mitigate his guilt or afffect the credibility of the Prosecution evidence. The Prosecution is under a continuing obligation to disclose such exculpatory evidence. 3. For reference herein, all materials envisaged in Rules 66(A)(i) and 68(B) of “the Rules” will be indicated as “disclosure materials.” 4. “The Special Court” notes that in the Memorandum from the Registrar on a Practice Direction for Disclosure by the Prosecutor issued on the 10th day of April 2003, the Registrar directs that disclosure pursuant to Rule 66(A)(i) of “the Rules” shall be made to the Defence Counsel, identifĳied either as a Counsel engaged by an Accused pursuant to Rule 44 of “the Rules” or a Counsel assigned to an Accused pursuant Rule 45 of “the Rules,” and that the Defence Offfĳice is not in a position to receive the “disclosure materials.” 5. Pending deliberation and ruling on “the Motion,” it is therefore necessary to guarantee the fulfĳilment of the Prosecution’s obligations to disclose and this shall encompass appropriate interim measures for the protection of witnesses and victims as well as for the confĳidentiality of all non-public materials subject to disclosure. 6. Considering the aforementioned and relying on a common practical procedure previously adopted by “the Special Court,” the Prosecution may comply with its disclosure obligations pursuant to Rule 66(A)(i) and Rule 68(B) of “the Rules” by transmitting the “disclosure materials” to the Registrar, the Registrar keeping the “disclosure materials” under seal until deliberation on “the Motion” is rendered and orders for appropriate protective measures for witnesses, victims and non-public materials have been issued.

FOR THESE REASONS “THE SPECIAL COURT” HEREBY ORDERS the Prosecution to transmit, on or before the 23rd day of October 2003, the “disclosure materials” to the Registrar; 138 part ii

INSTRUCTS the Registrar to certify receipt of the “disclosure materials” from the Prosecution. The Registrar shall seal and date the “disclosure materials” and liaise with the Prosecution to provide for their proper custody. When a decision on “the Motion” is rendered and, if needed, ordered measures put in place, the Registrar shall then make available the “disclosure materials” to the Defence Counsel and the disclosure shall then take efffect. The Registrar shall consult with the Prosecution and the Defence Offfĳice for this purpose.

Done in Freetown, this 15th day of October 2003

Judge Pierre Boutet Designated Judge THE TRIAL CHAMBER

Before: Judge Bankole Thompson Presiding Judge, Trial Chamber Designated Judge Pursuant to Rule 28 of the Rules Registrar: Robin Vincent Date: 23 October 2003 PROSECUTOR Against Brima Bazzy Kamara (Case No. SCSL-2003-10-PT)

DECISION ON THE PROSECUTOR’S MOTION FOR IMMEDIATE PROTECTIVE MEASURES FOR WITNESSES AND VICTIMS AND FOR NON-PUBLIC DISCLOSURE

Office of the Prosecutor: Defence Office: Luc Côté, Chief of Prosecution Ken Fleming QC James C. Johnson, Senior Trial Counsel Sharan Parmar, Assistant Trial Counsel 140 part ii

THE SPECIAL COURT FOR SIERRA LEONE (“the Court”) BEFORE JUDGE BANKOLE THOMPSON, sitting as a Designated Judge pursuant to Rule 28 of the Rules of Procedure and Evidence (“the Rules”) on behalf of the Trial Chamber; BEING SEIZED of the Motion by the Offfĳice of the Prosecutor for Immediate Protective Measures for Witnesses and Victims and for Non-Public Disclosure (“the Motion”) and of the “Briefs” (Written Submissions) with attachments in support of the said Motion, fĳiled on the 11th day of July, 2003; CONSIDERING also the Response fĳiled by the Defence Offfĳice on behalf of the Accused on 22nd day of July, 2003, to the aforementioned Prosecution Motion (“the Response”); CONSIDERING the Prosecutor’s Reply fĳiled on 24th day of July, 2003 to the aforesaid Defence Response (“the Reply”); WHEREAS acting on the Chamber’s Instruction, the Court Management Section advised the parties on the 20th day of October, 2003 that the merits of the Motion, the Response, and the Reply would be determined on the basis of the “Briefs” (Written Submissions) of the parties ONLY pursuant to Rule 73 of the Rules; COGNISANT OF the Statute of the Court (“the Statute”), particularly Articles 16 and 17 thereof, and specifĳically Rules 53, 54, 73, and 75 of the Rules;

NOTING THE SUBMISSIONS OF THE PARTIES Th e Prosecution Motion 1. By the aforementioned Motion, the Prosecutor seeks orders for protective measures for persons who fall into three categories (paragraph 18 of the Motion): (a) Witnesses who presently reside in Sierra Leone and who have not afffĳirma- tively waived their rights to protective measures; (b) Witnesses who presently reside outside Sierra Leone but in other countries in West Africa or who have relatives in Sierra Leone, and who have not afffĳirmatively waived their rights to protective measures; (c) Witnesses residing outside West Africa who have requested protective measures. 2. By the said Motion, the Prosecutor also requests that the Defence be prohibited from disclosing to the public or media any non-public materials which are provided to them as part of the disclosure process. 3. Further, the Prosecutor requests that the persons categorised in paragraph 18 of the Motion and the prohibition as to non-public disclosure sought in interlocutory decisions – trial chamber 141 paragraph 20 of the Motion be provided protection and efffected respectively by the Orders sought as set out below (Paragraph 24 of Motion): (a) An Order allowing the Prosecution to withhold identifying data of the persons the Prosecution is seeking protection for as set out in paragraph 18 or any other information which could lead to the identity of such a person to the Defence until twenty-one days before the witness is to testify at trial; and consequently allowing the Prosecution to disclose any materials provided to the Defence in redacted form until twenty-one (21) days before the witness is to testify at the trial, unless otherwise ordered; (b) An Order requiring that the names and any other identifying information concerning all witnesses, be sealed by the Registry and not included in any existing or future records of the Court; (c) An Order permitting the Prosecution to designate a pseudonym for each witness, which was and will be used for pre-trial disclosure and whenever referring to such witness in the Court proceedings, communications and discussions between the parties to the trial, and the public; it is understood that the Defence shall not make an independent determination of the identity of any protected witness or encourage or otherwise aid any person determine the identity of any such person; (d) An Order that the names and any other identifying information concerning all witnesses described in paragraph 24, be communicated only to the Victims and Witnesses Unit personnel by the Registry or the Prosecution in accordance with the established procedure and only in order to implement protection measures for these individuals; (e) An Order prohibiting the disclosure to the public or the media of the names and any other identifying data or information on fĳile with the Registry, or any other information which could reveal the identity of witnesses and victims, and this order shall remain in efffect after the termination of the proceedings in this case; (f) An Order prohibiting the Defence from sharing, discussing or revealing, directly or indirectly, any disclosed non-public materials of any sort, or any information contained in any such documents, to any persons or entity other than the Defence; (g) An Order that the Defence shall maintain a log indicating the name, address and position of each person or entity which receives a copy of, or information from, a witness statement, interview report or summary of expected testimony, or any other non-public material, as well as the date of disclosure; and that the Defence shall ensure that the person to whom such information was disclosed follows the order of non-public disclosure; 142 part ii

(h) An Order requiring the Defence to provide to the Chamber and the Prosecution a designation of all persons working on the Defence team who, pursuant to paragraph 24 (a) above, have access to any information referred to in paragraph 24 (a) through 24 (e) above, and requiring the Defence to advise the Chamber and the Prosecution in writing of any changes in the composition of this Defence team; (i) An Order requiring the Defence to ensure that any member leaving the Defence team remits to the Defence team all disclosed non-public materials; (j) An Order requiring the Defence to return to the Registry, at the conclusion of the proceedings in this case, all disclosed materials and copies thereof, which have not become part of the public record; (k) An Order that the Defence Counsel shall make a written request to the Trial Chamber or a Judge thereof, for permission to contact any protected witnesses or any relative of such person, and such request shall be timely served on the Prosecution. At the direction of the Trial Chamber or a Judge thereof, the Prosecution shall contact the protected person and ask for his or her consent or the parents or guardian of that person if that person is under the age of 18, to an interview by the Defence, and shall undertake the necessary arrangements to facilitate such contact. Th e Defence Response 4. On behalf of the Accused, the Defence submits that the Prosecution’s Motion must fail. The contentions in support are set out in detail below: (i) that the Rules provide for the protection of witnesses and victims, “but not as alleged by the Prosecution material”; (ii) that the Rules require that there must be “exceptional circumstances” to justify non-disclosure of the identity of a victim or a victim or a witness who may be in danger or at risk and that the material presented by the Prosecution does not show “exceptional circumstance”; (iii) that Rule 75 authorises the granting of protective measures “consistent with the rights of the accused”; (iv) that “the fundamental error in the application of the Prosecution is to ignore the specifĳic, and concentrate on the general,” there is not “a single mention of the Accused in this matter in any of the material…”; (v) that the assertion about “threats, harassment, violence, bribery and other intimidations, interference and obstruction of justice” being “serious problems in paragraph 12 of the Prosecution’s Motion is “baseless, presumptuous and offfensive”; (vi) that there is no evidence that the Accused in this case has ever indulged in such behaviour or is likely to indulge in such behaviour”; interlocutory decisions – trial chamber 143

(vi) that the Orders sought by the Prosecution are unworkable, “impractical,” “impossible” and “futile” Th e Prosecution Reply 5. The Prosecution, in its Reply, fĳiled on the 24th day of April, 2003 to the Response of the Defence in respect of Brima Bazzy Kamara, submits in summary as follows: The arguments raised in the Response of Defence Counsel should be rejected as they are either incorrect or are not supported by the jurisprudence of the international tribunals. The assertions fail to realise that it has been accepted by the International Criminal Tribunals for Yugoslavia and Rwanda and the Special Court that the rights of the Accused must be balanced with the need for protective measures for witnesses and victims. Finally the Defence Response is clearly in violation of prescribed time limit for fĳiling of documents which cannot be corrected by bringing an application for extension within the said Response.

ORDER GRANTING LEAVE 6. I take full cognisance of the merit of the Prosecution’s submission that the Defence is in clear violation of the prescribed time limit for fĳiling documents. In upholding the Prosecution’s submission, I strongly reprimand the Defence for the said procedural irregularity, and caution them against future infringements. It is, however, my considered opinion that no prejudice is caused to the Prosecution by the said infringement. Accordingly, in the interest of justice, leave is hereby granted retroactively to the Defence to fĳile the said Response out of time.

AND HAVING DELIBERATED AS FOLLOWS 7. Pursuant to Article 16 of the Statute, the Court is authorized to provide in its Rules for the protection of victims and witnesses. Such protective measures shall include, without being limited to, the protection of a witness’s identity. Rule 75 provides, inter alia, that a Judge or a Chamber may, on its own Motion, or at the request of either party, or of the victims or witnesses concerned, or of the Victims and Witnesses Unit, order appropriate measures to safeguard the privacy and security of victims and witnesses, provided that the measures are consistent with the rights of the Accused. 8. According to Rule 69 of the Rules, under exceptional circumstances, either of the parties may apply to a Judge of the Trial Chamber or the Trial Chamber to order the non-disclosure of the identity of a witness who may be in danger or at risk until the Judge or Chamber otherwise decides. 9. Article 17 of the Statute of the Court sets out the Rights of the Accused including inter alia, the right “to have adequate time and facilities for the preparation of 144 part ii his or her defence and the right to examine, or have examined the witnesses against him or her.” As designated Judge, I also take cognisance of Rule 69(C) of the Rules whereby the identity of a witness shall be disclosed in sufffĳicient time before a witness is called to allow adequate time for preparation of the Defence. 10. Pre-eminently mindful of the need to guarantee the utmost protection and respect for the rights of the victims and witnesses, and seeking to balance those rights with the competing interests of the public in the administration of justice, of the international community in ensuring that persons accused of violations of humanitarian law be brought to trial on the one hand, and the paramount due process right of the Accused to a fair trial, on the other, I am enjoined to order any appropriate measures for the protection of the victims and witnesses at the pre-trial stage that will ensure a fair determination of the matter before me, deciding the issue on a case-by-case basis consistent with internationally recognised standards of due process. Such orders are to take efffect once the particulars and locations of the witnesses have been forwarded to the Victims and Witnesses Support Unit. 11. In determining the appropriateness of the protective measures sought, I have evaluated the security situation afffecting concerned witnesses in the light of the available information presented by the Prosecution in support of the Motion, specifĳically the Afffĳidavit of Thomas Lahun dated the 10th day of June, 2003, the Declaration of Dr. Alan White dated the 10th day of June, 2003, the Declaration of Alan Quee dated the 25th day of April, 2003, and the Declaration of Saleem Vahidy dated the 28th day of April, 2003. In putting the entire situation in its proper context, the Afffĳidavit of Offfĳicer Lahun and Mr. Vahidy are pre-eminent and illuminating. I have therefore taken the liberty of highlighting, for the sake of emphasis, certain relevant passages from the aforesaid documents so as to evaluate the merits of the key submissions of the Defence. The Defence submitted (a) that instead of showing “exceptional circumstances” the Prosecution had relied upon material prepared “in a general and vague manner”; (b) that not a single mention is made of the Accused in the Prosecution’s papers; and (c) that the Motion is “baseless,” “presumptuous” and “offfensive.” 12. In paragraph 4 of his afffĳidavit, Offfĳicer Lahun fĳirsts attests to his area of expertise as an investigator with the rank of Superintendent, and proceeds to depose thus: “Since 14th August, 2002, I have been working in the Offfĳice of the Prosecutor, Special Court for Sierra Leone, where my duties include investigating crimes against international humanitarian law committed within the territory of Sierra Leone from 30th November 1996, during the period of armed conflict in Sierra Leone. My investigative duties include conducting interviews of persons who may appear as witnesses before the Special Court, and reviewing investigative notes and statements of such persons taken by other investigators in the Offfĳice of the Prosecutor” (emphasis added). interlocutory decisions – trial chamber 145

13. It is further deposed to at paragraphs 6, 8 and 9 that: 6. “Members of the civilian population of Sierra Leone who may be called upon to appear as witnesses before the Special Court have expressed concern regarding their safety and security if it becomes known that they are co-operating with the Special Court, especially if the identities are revealed to the general public, or to the suspect or accused, before appropriate protective measures can be put in place.” 8. “Potential witnesses have expressed fear of reprisals not only from those who are associated with the Accused, and from those who support the causes or factions that the Accused represents.” 9. “The fears expressed are genuine, and in my opinion, are well-founded, especially considering that many of the potential witnesses live in remote areas without any police presence or other semblance of security.” In addition, paragraphs 7 and 10 of the aforesaid afffĳidavit do reinforce the evidence of fear, threats, intimidation, risk and danger to witnesses and potential witnesses. 14. Offfĳicer Gbekie’s afffĳidavit evidence is corroborated, in material particulars, by paragraphs 5 and 6 of the Declaration of Saleem Vahidy, Chief of the Witness and Victims Unit of the Court. At paragraph 6, Mr. Vahidy states: “In my opinion in Sierra Leone the issue of protection of witnesses is a far more serious and difffĳicult matter even than in Rwanda. The trials are being carried out in a country where the crimes took place, and the witnesses feel particularly vulnerable…” It is further deposed to in paragraph 6 that: “At present the Unit is already looking after numerous witnesses, ad several threat assessments have been carried out. Without going into details, it is a fact that specifĳic threats have been issued against some of the witnesses, to the extent that active effforts are being made by members of interested faction to determine their exact locations, probably with a view to carrying out reprisals.” 15. Consistent with the Court’s previous Decisions1 on the issue of protective measures for prosecution witnesses, I fĳind that the combined efffect of the afffĳida- vit evidence of Offfĳicer Lahun and the declarations of Dr. Alan White, Alan Quee and Saleem Vahidy is to demonstrate, within the bounds of reasonable foreseeability and not absolute certainty, the delicate and complex nature of the security situation in the country and the level of threat from several quarters of the

1 Decisions on the Prosecutor’s Motion for Immediate Protective Measures For Witnesses and Victims and for Non-Public Disclosure, dated 23 May 2003 in Prosecution Against Issa Hassan Sesay, SCSL-2003-05-PT, Alex Tamba Brima, SCSL-2003-06-PT, Morris Kallon, SCSL-2003-07-PT, Samuel Hinga Norman, SCSL-2003-08-PT and after 13th October 2003, in Prosecutor Against Moinina Fofana, SCSL-2003-11-PD. 146 part ii ex-combatant population that participated in the conflict to witnesses and potential witnesses. It would not be judicially prudent to treat such afffĳidavit evidence lightly, as to its probative value, especially in the absence of an afffĳidavit in rebuttal. The irresistible inference, therefore, is that such threats may well pose serious problems to such witnesses and the efffectiveness of the Court in the discharge of its international mandate. To the same efffect is the fĳinding of the Court per Judge Boutet in a recent Decision On the Prosecution Motion For Immediate Protective Measures For Witnesses And Victims And For Non-Public Disclosure2, to wit: “ “The Special Court,” therefore, based upon its examination of the documentation produced, and in particular, of the foregoing, concludes that there exists at this particular time in Sierra Leone, a very exceptional situation causing a serious threat to the security of potential witnesses and victims and accepts the afffĳirmation that, according to Mr. Vahidy ‘in Sierra Leone the protection of witnesses is a far more serious and difffĳicult matter even than in Rwanda’ ” 16. Concerning the need for the protection of witnesses’ identities at the pre- trial phase as distinct from the trial phase, I have sufffĳiciently advised myself on the applicable body of jurisprudence. Without meaning to detract from the preceden- tial or persuasive utility of decisions of the ICTR and the ICTY and to diminish the general thrust of the Prosecution’s submissions on this point at paragraphs 17 and 19 of the Motion it must be emphasized that the use of the formula “shall be guided by” in Article 20 of the Statute does not mandate a slavish and uncritical emulation, either precedentially or persuasively, of the principles and doctrines enunciated by our sister tribunals. Such an approach would inhibit the evolutionary jurisprudential growth of the Special Court consistent with its own distinctive origins and features. On the contrary, the Special Court is empowered to develop its own jurisprudence having regard to some of the unique and diffferent socio- cultural and juridical dynamics prevailing in the locus of the Court. This is not to contend that sound and logically correct principles of the law enunciated by ICTR and ICTY cannot, with necessary adaptations and modifĳications, be applied to similar factual situations that come before the Special Court in the course of adjudication so as to maintain logical consistency and uniformity in judicial rulings on interpretation and application of the procedural and evidentiary rules of the international criminal tribunals. 17. Instructive though, from a general jurisprudential viewpoint, some of the decisions of ICTR and ICTY relied upon by both Prosecution and Defence Offfĳice on the subject of delayed disclosure and confĳidentiality of witnesses and victims may be in terms of the principles therein enunciated, the issue is really one of contextual socio-legal perspective. Predicated upon such a perspective, one can

2 Prosecutor v. Augustine Gbao, SCSL-2003-09-PT dated 10th October 2003 para. 25. interlocutory decisions – trial chamber 147 reach various equally valid conclusions applying a comparative methodology on: (a) whether the security situation in Sierra Leone can, at this point in time, in relation to Rwanda, be objectively characterized as really more or less or equally volatile; (b) whether the security situation in Rwanda during the grant or denial of the protective measures sought in those cases, was more or less or equally volatile as the present security situation in Sierra Leone; or (c) whether there is any logical basis for comparison at all, a position rightly taken by the Defence. Evidently, it takes no stretch of the legal imagination to discover that in such matters speculation can be endless and quite fruitless. It depends on one’s analytical or methodological approach. They are not matters that can be determined with any mathematical exactitude. 18. Which principle, then, is applicable in determining the merits of the instant Motion? The answer is that it is the general principle propounded by the ICTY, in the case of The Prosecutor v. Blaskic, IT-95-14, Decision on the Application of the Prosecution dated 17th October 1996 Requesting of Protective Measures for Victims and Witnesses, 5th November 1996. It states that: The philosophy which imbues the Statute and Rules of the Tribunal appears clear: the Victims and Witnesses merit protection, even from the Accused, during the preliminary proceedings and continuing until a reasonable time before the start of the trial itself; from that time forth, however, the right of the Accused to an equitable trial must take precedence and require that the veil of anonymity be lifted in his favour, even if the veil must continue to obstruct the view of the public and the media. Applying this general principle to the totality of the afffĳidavit evidence before me, it is my considered view that a reasonable case has been made for the prosecution witnesses herein to be granted at this preliminary stage a measure of anonymity and confĳidentiality. In addition, in matters of such delicacy and sensitivity, it would be unrealistic to expect the Prosecution, at the pre-trial phase, to carry the undue burden of proving, as implied by the Defence, in respect of each accused whether he has, directly or indirectly, threatened or intimidated or caused to be threatened or intimidated any or all of the witnesses or potential witnesses for whom protective measures are sought. Such an approach would frustrate, if not, (using a familiar legal metaphor) drive a horse and coach through the entire machinery created by the Founding Instruments of the Court and its Rules for Protection of witnesses and victims. 19. Further, as designated Judge under Rule 28 of the Rules, my judicial evaluation of the measures requested by the Prosecution pursuant to Articles 16 and 17 of the Statute and Rules 53, 54, and 75 of the Rules, is also predicated upon the reasoning that even though the Court must, in such matters, seek to balance the right of the Accused to a fair and public trial with the interest of the witnesses in being given protection, such a right is subject to derogating exceptional circumstances (Article 17(2) of the Statute) and that the existing context of the security 148 part ii situation in Sierra Leone does justify, at this point in time, delaying the disclosure of the identities of witnesses during the pre-trial phase. 20. As regards the 21 (twenty-one) day time limit prayed for by the Prosecution in Order (a), despite the existence of some instructive ICTY and ICTR decisions supporting the 21 day rule limitation for disclosure, it is my considered view that there is no legal logic or norm compelling an inflexible adherence to this rule. In the context of the security situation in Sierra Leone and in the interest of justice, one judicial option available to me, at this stage, in trying to balance the interest of the victims and witnesses for protection by a grant of anonymity and confĳidentiality with the pre-eminent interest of efffectively protecting the Accused’s right to a fair and public trial is to enlarge the time frame for disclosure beyond 21 (twenty-one) days to 42 (forty-two) days, the Prosecution’s submission notwithstanding, in line with the Court’s recent decision on the same issue in Prosecutor v. Augustine Gbao3 where Judge Boutet ruled thus: “Therefore, “the Special Court” rules that no disclosure shall be made within forty- two (42) days of the date of the testimony of the witness, instead of twenty – one (21) days such disclosure achieving a fair balance between “full respect” for the rights of the Accused and “due respect” for the protection of witnesses and victims.” And I so order.

AND BASED ON THE FOREGOING DELIBERATION, I HEREBY GRANT THE PROSECUTION’S MOTION AND IN PARTICULAR THE ORDERS SOUGHT IN (a) TO (k) as specifĳied and particularised therein with the necessary modifĳication to Order (a) in respect of the time frame for disclosure prior to testimony at trial, which said ORDERS, for the sake of completeness, are set out in extenso in the annexure hereto.

Done at Freetown 23rd day of October, 2003

Judge Bankole Thompson Presiding Judge, Trial Chamber Designated Judge Pursuant to Rule 28 of the Rules

3 Id. Supra 2; see also Court’s earlier decisions referred to already. interlocutory decisions – trial chamber 149

ANNEXURE TO THE DECISION ON THE PROSECUTOR’S MOTION FOR IMMEDIATE PROTECTIVE MEASURES FOR WITNESSES AND VICTIMS AND FOR NON-PUBLIC DISCLOSURE: ORDERS FOR IMMEDIATE PROTECTIVE MEASURES FOR WITNESSES AND VICTIMS AND FOR NON PUBLIC DISCLOSURE

THE SPECIAL COURT FOR SIERRA LEONE (the “Special Court”) PRESIDED OVER by Judge Bankole Thompson designated in accordance with provisions of Rule 28 of the Rules of Procedure and Evidence (“the Rules”); BEING SEIZED of the Motion for Immediate Protective Measures for Witnesses and Victims and for Non-Public Disclosure fĳiled by the Prosecutor on the 11th day of June, 2003 (“the Motion”) for an order requesting various protective measures to safeguard the security and privacy of victims, witnesses and to safeguard the integrity of the prosecution’s evidence and of these proceedings; CONSIDERING that non-public material is disclosed to the Accused primarily for the purpose of allowing him to prepare to meet the charges against him and for no other purpose; CONSIDERING FURTHER that the Designated Judge takes very seriously the interests and concerns of victims and witnesses, is genuinely concerned for their safety, protection and welfare, is authorised to take all appropriate measures to ensure their protection and privacy, and is judicially obliged to safeguard non- public materials provided to the Accused in order to enable him to prepare for trial, where the interests of justice so demand; CONSIDERING ALSO that it is of paramount importance to protect the right of the Accused to a fair and public trial and that only in exceptional circumstances should such a right be derogated from; HAVING METICULOUSLY EXAMINED the merits of the submissions by the Defence in response to the said Prosecution Motion and sought to balance the interests of the victims and witnesses for protection and privacy with the right of the Accused to fair trial in the context of the specifĳic measures requested; CONVINCED that despite the Defence submissions, in the specifĳic context of this case, there is clear and convincing evidence submitted by the Prosecution for protective measures for witnesses and victims and for non-public disclosure of the material in this case at the pre-trial stage; NOTING that Articles 17(2) and 16(4) of the Statute of the Special Court for Sierra Leone (“the Statute”) envisage that the Trial Chamber shall, where expedient in the interests of justice, issue appropriate orders for the protection of victims and witnesses; 150 part ii

COGNISANT of the provisions of Rules 69 and 75 of the Rules concerning the protection of witnesses;

ACTING IN ACCORDANCE WITH Articles 16 and 17 of the Statute and pursuant to Rules 53, 54, 56, 69, and 75 of the Rules;

I HEREBY GRANT THE PROSECUTION MOTION AND ORDER as follows: (a) The Prosecution may withhold identifying data of the persons the Prosecution is seeking protection as set forth in paragraph 18 of the Motion and any other information which could lead to the identity of such a person to the Defence, until 42 (forty-two) days before the witness is to testify at trial; and may not disclose any materials provided to the Defence in a redacted form until 42 (forty-two) days before the witness is to testify at trial, unless otherwise ordered; (b) That the names and any other identifying information concerning all witnesses be sealed by the Registry and not included in any existing or future records of the Court; (c) The Prosecution may designate a pseudonym for each witness, which was and will be used for pre-trial disclosure and whenever referring to such witness in Court proceedings, communications and discussions between the parties to the trial, and the public; it is understood that the Defence shall not make an independent determination of the identity of any protected witness or encourage or otherwise aid any person to attempt to determine the identity of any such person; (d) That the names and any other identifying information concerning all witnesses described in order (a) be communicated only to the Victims and Witnesses Unit personnel by the Registry or the Prosecution in accordance with established procedure and only in order to implement protection measures for these individuals; (e) That the names and any other identifying data or information on fĳile with the Registry, or any other information which could reveal the identity of Witnesses and Victims, shall not be disclosed to the public or the media and this order shall remain in efffect after the termination of the proceedings in this case; (f) That the Defence shall not share, discuss or reveal, directly or indirectly, any disclosed non-public materials of any sort, or any information contained in any such documents, to any person or entity other than the Defence; (g) That the Defence shall maintain a log indicating the name, address and position of each person or entity which receives a copy of, or information from, a witness statement, interview report or summary of expected testimony, or any other nonpublic material, as well as the date of disclosure; interlocutory decisions – trial chamber 151

and that the Defence shall ensure that the person to whom such information was disclosed follows the order of non-public disclosure; (h) That the Defence provide to the Chamber and the Prosecution a designation of all persons working on the Defence team who, pursuant to order (f) above, have access to any information referred to in order (a) through (e) above (reference herein being made to the Motion), and requiring the Defence to advise the Chamber and the Prosecution in writing of any changes in the composition of this Defence team; (i) That the Defence ensure that any member leaving the Defence team remits to the Defence team all disclosed non-public materials; (j) That the Defence return to the Registry, at the conclusion of the proceedings in this case, all disclosed materials and copies thereof, which have not become part of the public record; (k) That the Defence Counsel make a written request to the Trial Chamber or a Judge thereof, for permission to contact any protected witnesses or any relative of such person, and such request shall be timely served on the Prosecution. At the direction of the Trial Chamber or a Judge thereof, the Prosecution shall contact the protected person and ask for his or her consent or the parents or guardian of that person if that person is under the age of 18, to an interview by the Defence, and shall undertake the necessary arrangements to facilitate such contact. HEREBY FURTHER ORDER that consistent with Order (a) above, the Prosecutor shall disclose the names and unredacted statements of the witnesses to the Defence in at least 42 (forty-two) days before the witness is to testify at trial to allow the Defence sufffĳicient and reasonable time to prepare efffectively for trial, having regard to the gravity of the charges against the Accused person and the magnitude of the Prosecutor’s allegations against him. For the purpose of this Order: (a) “the Prosecution” means and includes the Prosecutor of the Special Court for Sierra Leone (the Court) and his stafff; (b) “the Defence” means and includes the Accused, the Defence counsel and their immediate legal assistants and stafff, and others specifĳically assigned by the court to the Accused’s trial Defence team in conformity with Rule 44; (c) “witnesses” means and includes witnesses and potential witnesses of the Prosecution; (d) “protected witnesses” means and includes the witnesses in the categories as set forth in paragraph 18 of the Motion; (e) “victims” means and includes victims of sexual violence, torture, as well as all persons who were under the age of 15 at the time of the alleged commission of the crime; 152 part ii

(f) “the public” means and includes all persons, governments organisations, entities, clients, associations, and groups, other than the Judges of the Court and the stafff of the Registry, the Prosecution, the Defence, as defĳined above. “The public” specifĳically includes, without limitation, family, friends and associates of the Accused, and the Defence in other cases or proceedings before the court; (g) “the media” means and includes all video, audio, print media personnel, including journalists, authors, television, and radio personnel, their agents and representatives.

Done at Freetown, 23rd day of October, 2003

Judge Bankole Thompson Presiding Judge, Trial Chamber Designated Judge Pursuant to Rule 28 of the Rules THE TRIAL CHAMBER

Before: Judge Bankole Thompson, Presiding Judge Judge Benjamin Mutanga Itoe Judge Pierre Boutet Registrar: Robin Vincent Date: 19 November 2003 PROSECUTOR Against Santigie Borbor Kanu (Case No. SCSL-2003-13-PT)

DECISION AND ORDER ON DEFENCE PRELIMINARY MOTION FOR DEFECTS IN THE FORM OF THE INDICTMENT

Office of the Prosecutor: Defence Counsel: Mr. Luc Côté, Chief of Prosecutions Professor Geert-Jan Alexander Knoops Mr. Robert Petit, Senior Trial Counsel Mr. Christopher Santora 154 part ii

THE SPECIAL COURT FOR SIERRA LEONE (“the Special Court”), SITTING as Trial Chamber (“the Trial Chamber”) composed of Judge Bankole Thompson, Presiding Judge, Judge Pierre Boutet and Judge Benjamin Mutanga Itoe; BEING SEIZED of the Defence Preliminary Motion for Defects in the Form of the Indictment fĳiled on the 17th day of October 2003 on behalf of Santigie Borbor Kanu (“the Motion”) pursuant to Rule 72(B)(ii) and (D) of the Rules of Procedure and Evidence of the Special Court (“the Rules”); CONSIDERING that the said Motion is one which, according to Rule 72(B)(ii), falls within the jurisdiction of the Trial Chamber for determination; NOTING that the several challenges raised by the Defence in the Motion are as to alleged formal defects in the Indictment against Santigie Borbor Kanu approved by Judge Pierre Boutet on the 16th day of September, 2003 sitting as designated Judge of the Trial Chamber pursuant to Rules 28 and 47 of the Rules; CONSIDERING ALSO the paramount importance of the right of the Accused to object preliminarily to the formal validity of the Indictment and not the substantive issue as to whether the criteria for approving the Indictment were satisfĳied, and the need to keep the two issues separate and distinct; CONSIDERING the Response fĳiled by the Prosecution on the 24th day of October, 2003 to the Motion (“the Response”); CONSIDERING ALSO the Reply fĳiled by the Defence on the 30th day of October, 2003 to the Prosecution’s Response (“the Reply”); WHEREAS acting on the Chamber’s Instructions, the Court Management Section advised the parties on the 14th day of November 2003 that the Motion, the Response and the Reply would be considered and determined on the basis of the “Briefs” (Written Submissions) of the Parties ONLY pursuant to Rule 73(A) of the Rules;

NOTING THE SUBMISSIONS OF THE PARTIES The Defence Motion 1. By the instant Motion, the Defence seeks the following REMEDIES: “As regards the judicial consequences and remedies for the analyzed defĳiciencies, in the particular Indictment, the Defence respectfully prays that primarily the Prosecutor be ordered to specify or particularize the elements of the Indictment as mentioned in Chapter III above within a time frame as to be set by your Court, failure of which should result in dismissal of the Indictment. interlocutory decisions – trial chamber 155

With regard to the particularization of the Indictment, the Defence refers to paras 31–33 of the above mentioned Sesay Decision, and respectfully prays the Special Court to implement them equally in the case of Mr. Kanu. Accordingly the Defence respectfully prays that the Prosecution be ordered to provide a Bill of Particulars as set out in the Annexure to the Sesay Decision, in order to remedy the defĳiciencies in the present Indictment.” 2. Specifĳically, the Defence raises several challenges to the formal validity of the Indictment. They are grouped as follows: (A) Lack of Specifĳicity Regarding Diffferent Forms of Individual Criminal Responsibility, (B) Lack of Specifĳicity Regarding Various Counts. Th e Prosecution’s Response 3. In response, the Prosecution submits for reasons set out in extenso at paragraphs 4–17 of their Response, that the Defence Motion has no basis in fact or in law, and should, therefore, be dismissed. Th e Defence Reply 4. In reply to the Prosecution’s Response, the Defence reinforces the submissions and contentions put forward in the Motion.

AND HAVING DELIBERATED AS FOLLOWS: 5. Expounding the law governing the framing of indictments in international criminal law, the Court in its recent Decision in the Prosecutor v. Issa Hassan Sesay1 had this to say: “The fundamental requirement of an indictment in international law as a basis for criminal responsibility underscores its importance and nexus with the principle of nullum crimen sine lege as a sine qua non of international criminal responsibility. Therefore, as the foundational instrument of criminal adjudication, the requirements of due process demand adherence, within the limits of reasonable practicability, to the regime of rules governing the framing of indictments.”2

1 (Case No. SCSL-2003-05-PT) Decision and Order on Defence Preliminary Motion for Defects In the Form of the Indictment dated 13 October 2003 at para. 5 per Judge Thompson. 2 Id. supra note 1. The Court in the said Decision further noted as follows: “the rules governing the framing of indictments within the jurisdiction of the Special Court are embodied in the Founding Instruments of the Court. Firstly, according to Article 17(4) of the Court’s Statute, the accused is entitled to be informed “promptly” and in “detail” of the nature of the charges against him.” Secondly, Rule 47(C) of the Rules of Procedure and Evidence of the Special Court expressly provides:” The Indictment shall contain, and be sufffĳicient if it contains, the name and particulars of the suspect, a statement of each specifĳic offfence of which the named suspect is charged and a short description of the particulars of the offfence. It shall be accompanied by a Prosecutor’s case summary briefly setting out the allegations he proposes to prove in the making of his case.” 156 part ii

6. Consistent with the general and specifĳic principles governing the framing of indictments adumbrated by the Court in the aforesaid Decision, this Chamber, guided by the said principles and criteria enunciated in paragraphs 5–9 therein, now proceeds to examine seriatim the several challenges and submissions put forward by the Defence as to the formal validity of the Indictment herein. 7. As already noted, the challenges or objections taken by the Defence to the form of the Indictment are (A) lack of specifĳicity regarding diffferent forms of individual criminal responsibility and (B) lack of specifĳicity regarding various counts. 8. Under group (A) of the objections, the Defence contends generally that the Prosecution’s allegations in paragraphs 23–26 of the Indictment that “(i) primarily, the Accused participated in a joint criminal enterprise and (ii) alternatively, the Accused would bear individual criminal responsibility … lack the requisite specifĳicity” as required by Article 17(4) of the Court’s Statute and Rule 47(C) of its Rules of Procedure and Evidence. Specifĳically, this challenge is of a four-fold dimension. It is that the doctrine of joint criminal enterprise, as pleaded, lacks specifĳicity as to the role and position of the Accused in the alleged joint criminal enterprise; that the Indictment, in its present form, does not particularize how the Accused, as an individual, could have played a relevant role in an alleged joint criminal enterprise comprising two organised armed factions; that the Indictment does not adequately specify the category of the joint criminal enterprise alleged; and further that the Indictment fails to establish the nexus between the joint criminal enterprise and the specifĳic crimes alleged. 9. Paragraph 23 of the Indictment charges the Accused in these terms: “The AFRC, including the ACCUSED, and the RUF 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.” 10. Paragraph 24 of the Indictment alleges: “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 reasonable consequence of the joint criminal enterprise.” 11. Paragraph 25 of the Indictment alleges: “SANTIGIE BORBOR KANU, by his acts or omissions, is individually criminally responsible pursuant to Article 6.1 of the Statute for the crimes referred to in Articles interlocutory decisions – trial chamber 157

2, 3, and 4 of the Statute as alleged in this Indictment, which crimes the ACCUSED planned, instigated, ordered, committed, or in whose planning preparation or execution the Accused otherwise aided and abetted, or which crimes were within a joint criminal enterprise in which the ACCUSED participated or were a reasonably foreseeable consequence of the joint criminal enterprise in which the ACCUSED participated.” 12. From a close examination of the entire Indictment and paragraphs 23–26, it is inaccurate to suggest that the alleged joint criminal enterprise is not pleaded with sufffĳicient particularity as to the role and position of the Accused. For example, paragraph 25 delineates with much specifĳicity the details of the Accused’s alleged role in the joint criminal enterprise. The allegation is that he “planned, instigated, ordered, committed the said crimes within the joint criminal enterprise or “otherwise aided and abetted” in the planning, preparation or execution of the said crimes. As regards his position in the joint criminal enterprise, the Chamber fĳinds that, according to the Indictment, the Accused was “a senior member of the AFRC/RUF, Junta and AFRC/RUF forces” (para. 18 of Indictment) and variously, that he was “a member of the Junta governing body, the AFRC Supreme Council” (para. 19 of the Indictment), and that he was also “a senior commander of the AFRC/RUF forces in Kono District” (para. 20 of the Indictment, and “one of the three Commanders of AFRC/RUF forces during the attack on Freetown on 6th July, 1999” (para. 20 of Indictment). The Chamber, accordingly, rejects this challenge as untenable. 13. The Chamber also rejects the Defence contention that the Indictment does not particularize how the Accused, as an individual, would have played a relevant role in an alleged joint criminal enterprise comprising two organised armed forces not constituted of private persons. This contention is meritricious since it is clear from the Indictment that the AFRC/RUF forces comprised “private persons” of which the Accused was, allegedly, one. The Indictment alleges throughout that there was an alliance between the two organized armed factions even though, initially, they were separate entities. 14. The Defence contention that the Indictment does not adequately specify the category of joint criminal enterprise alleged, in the opinion of the Chamber, lacks substance for the reasons hereinafter articulated. In this connection, the Chamber disagrees with the Defence submission that there is an obligation on the Prosecutor to elect between the basic joint criminal enterprise concept of liability and the extended one. The Chamber fĳinds nothing in the case-law authorities requiring the Prosecution to elect between the basic category of joint criminal enterprise theory of liability and the extended category theory. The Appeals Judgment in Prosecutor v Tadic3 imposes no such obligation. On this issue, all the Court did in that case was recall that a close scrutiny of the relevant case-law on the subject “shows that broadly speaking, the notion of common purpose encompasses three distinct categories of collective criminality,” and then articulate in 158 part ii paragraphs 196–206 the diffferent categories of joint criminal enterprise, and the extent to which the second category is a variant of the fĳirst. The Chamber also wishes to emphasize that the Prosecutor v Krnojelac4 is no authority for the proposition that there is an obligation on the Prosecution to elect in an indictment between the two categories of joint criminal enterprise liability. Clearly, in that case the Trial Chamber held that where “only a basic joint criminal enterprise had been pleaded, it would not be fair to the Accused to allow the Prosecutor to rely upon the extended form of joint criminal enterprise liability in the absence of such an amendment to the Indictment to plead it expressly.”5 For the foregoing reasons, the Chamber cannot sustain the Defence challenge. 15. As regards the issue that the Indictment fails to establish a nexus between the joint criminal enterprise and the specifĳic crimes alleged, the Chamber’s response is that such nexus seems clear from a careful reading of paragraph 24 of the Indictment, the scope of which is of general applicability to the whole Indictment, to wit: “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.” 16. Further, under group (A) challenges, the Defence contends that nowhere in the Indictment are the factual and material elements as to the alleged “efffective control over his subordinates” by the Accused specifĳied in respect of the alleged superior responsibility doctrine. The pith of this objection is that the Prosecution has not provided the factual foundation for the assertion that the Accused had “efffective control over his subordinates” as mentioned in paragraph 26 of the Indictment. The short answer of the Chamber to this complaint is that the factual basis for the allegation is found at paragraphs 18-21 of the Indictment. Further, as was emphasized in the Sesay Decision,6 whether or not the Accused exercised actual control over the subordinate members of the RUF and AFRC/RUF forces is an evidentiary matter that must be determined at the trial.7 17. Under group (B) challenges, the fĳirst complaint of the Defence is “about the lack of specifĳicity of the language of the Indictment” concerning the phrases “but not limited to these events” as well as “included but were not limited to” used variously in the Indictment. Relying on the ruling in Sesay on the fĳirst of those phrases,

3 Case No. IT-94-IA, July 15, 1999. 4 IT-95-25 “Decision on the Defence Preliminary Motion on the Form of the Indictment,” 24 February 1999. 5 Id. supra note 4. Judgment 15 March 2002 para. 86. 6 Supra note 1, para. 16. 7 Id. interlocutory decisions – trial chamber 159 the Defence submits that the Prosecution must elect for the purpose of this Indictment in respect of the same issue as in Sesay. After a close scrutiny of the Indictment as to the use of the phrase “but not limited to these events,” consistent with that ruling, this Chamber fĳinds merit in the Defence Motion on this point. The Prosecution is, accordingly, put to its election: either to delete the said phrase in every count or wherever it appears in the Indictment or provide in a Bill of Particulars specifĳic additional events alleged against the Accused in each count. In so far as the phrase “included but were not limited to” is concerned, the Court’s decision in Sesay left open the possibility that the said phrase could be impermissibly broad if it referred to ‘events’ as distinct from ‘locations’ and ‘dates.’ A close examination of the Indictment herein shows that the phrases “including but not limited to” and “included, but were not limited” appear at paragraphs 20, 46, and 51 of this Indictment. The Chamber fĳinds that their use in those paragraphs is inex- tricably interwoven with other key elements of the alleged crimes than mere locations and dates of the events. Hence, the Prosecution is directed to elect in the same manner as in relation to the phrase “including, but not limited to these events.” 18. The second Defence complaint under this class of challenges is about the use of these allegedly impermissible phrases: (a) “unknown number of ,” (b) “hundreds of ,” (c) “large-scale,” (d) “widespread,” (e) “unknown number of civilians,” (f) “an unknown number of ,” (g) “ widespread and large-scale,” (h) “a large number of children.” 19. As regards each of these phrases, based upon a thorough examination of the entire Indictment and in particular paragraphs 33–45, paragraphs 51–57, paragraphs 59–64, the Chamber adopts the reasoning of this Court in the Sesay case that whether these phrases “are permissible” for the purposes of an indictment alleging criminality in the international domain as distinct from criminality in the domestic sphere “depends primarily upon the context.” The Chamber is strongly of the opinion that the use of such phrases “is clearly permissible in situations where the alleged criminality was of what seems to be cataclysmic dimensions,”8 and where statistics are hard to come by. The Chamber takes note that where there is mass criminality, statistical data collection may not yield exactitude in, for example, the number of civilians or children killed en masse. In this connection, the Chamber restates its exposition of the law in the Sesay case that:

“in framing an indictment, the degree of specifĳicity required must necessarily depend upon such variables as (i) the nature of the allegations; (ii) the nature of the specifĳic crimes charged, (iii) the scale or magnitude on which the acts or events allegedly took place (iv) the circumstances under which the crimes were allegedly committed, (v) the duration of time over which the said acts or events constituting the crimes occurred,

8 Supra note 1, para. 23. 160 part ii

(vi) the time span between the occurrence of the events and the fĳiling of the indictment, (vii) the totality of the circumstances surrounding the commission of the alleged crimes”9 20. Applying the foregoing principle to the instant situation, the Chamber is of the view that having regard, as alleged, to the totality of the circumstances under which the crimes charged in the Indictment were committed, the superior position of the Accused at the material time, the nature of the crimes, their magnitude and scale, the widespread character of the same in terms of locations, the regularity with which the acts took place, that the specifĳicity requirement must be assessed with reference to the nature and peculiarities “of the crimogenic setting in which the crimes charged allegedly took place ….”10 For these reasons, the Chamber rejects these complaints as lacking merit. 21. Another objection put forward by the Defence is that “the Indictment does not make any mention of names or particulars of the victims mentioned therein,” and that this “leads to insufffĳicient specifĳicity given the fact that, … the Indictment does not even provide a close indication of the number of the alleged victims of the mentioned crimes.” A submission on this point is made in paragraph 35 of the Motion. The Chamber’s response to this complaint is that given, as alleged, the scale of the mass killings and destruction, and the widespread and systematic nature of the crimes charged together with their frequency, it would seem unrealistic to expect pin-point particularity in laying the charges in the Indictment on matters like identity of victims, locations and dates of the events. It is also trite law, as recognised by this Court, that in cases of mass criminality, “the sheer scale of the offfences makes it impossible to identify the victims”11 and the time and place of the events.”12 Taking the Indictment as whole and particularly paragraphs 33–39, 41–45, 47–49, 50, 52–57, 59–63, 41–45, 49, 53 and 64, the Chamber fĳinds pleaded, within the limits of reasonable practicability, sufffĳicient information as to the identities of victims, locations and dates of events in respect of the alleged crimes. To require more is tantamount to asking the Prosecution “to do the impossible.”13 The Chamber is convinced, therefore, that no unfair prejudice is done to the Accused by the use of such phrases. At the end of the day, in the Chamber’s view, “having regard to the cardinal principle of the criminal law that the Prosecution must prove

9 Id. para. 8. 10 Id. 9. 11 Prosecutor v. Kvocka et al. IT-98-30-PT “Decision on Preliminary Motion on Form of Indictment” TC III,12 April 1999, para. 22. Prosecutor v. Issa Hassan Sesay, Case No. SCSL-2003-05-PT, Decision and Order on Defence Preliminary Motion for Defects in the Form of the Indictment, 13 October, 2003 para. 7 12 Prosecutor v. Elizaphan and Gerald Ntakirutima, Judgment and Sentence, Case No ICTR-96-10 and ICTR 96-17-T, TCI, 2 February 2003. 13 Prosecutor v. Radoslav Brdanin & Momir Tadic, IT-99-36, “Decision on Objections by Momir Tadic to the Form of the Amended Indictment,” 20 February, 2001 para. 22. interlocutory decisions – trial chamber 161 the case against an accused beyond reasonable doubt, the onus is on the Prosecution to adduce evidence at the trial to support the charges, however formulated.” 14 In efffect, the Prosecution must stand or fall by their own charges. 22. The fĳinal complaint put forward by the Defence concerns Count 2 of the Indictment. For a fuller comprehension of its gravamen, it is reproduced below verbatim: Concerning Count 2 of the Indictment, The Defence holds the opinion that the term “collective punishments” has not been specifĳied because it is as such not keyed to the alleged events set forth in the paras. 32–57 to which paragraphs the Indictment here refers. Para 31 of the Indictment merely states that the charges in Count 3–13 were committed to punish the civilian population for allegedly supporting the elected government of President Kabbah, or for failing to provide sufffĳicient support to the AFRC/RUF. However, when reading the paras. 32–57 of the Indictment, no mention is made of these crimes being committed as part of the alleged collective punishments. It is thus not clear to the Accused what exactly he has been accused of in this matter. Moreover, as this term “collective punishments” is only inserted in Article 4(2) of the Additional Protocol II to the Geneva Conventions, without being explicitly employed in common Article 3 of the Geneva Conventions, arguably this is not a self-evident term. This part of Count 2 does therefore not fulfĳil the requirement mentioned in the Sesay Decision, namely the observation that “[allegations in an indictment are defective in form if they are not sufffĳiciently clear and precise so as to enable the accused to fully understand the nature of the charges brought against him.” The Defence therefore submits that the term “collective punishments” be deleted in the Count or, in the alternative, the Prosecutor be ordered to provide particulars as to the alleged nexus between this term and the separate Counts 3–13. 23. The Indictment charges the Accused in Counts 1 and 2 respectively (page 1) with “Terrorizing the Civilian Population and Collective Punishment.” The Indictment further alleges that: “Members of the AFRC/RUF subordinate to and/or acting in concert with SANTIGIE BORBOR KANU committed the crimes set forth below in paragraphs 32 through 57 and charged in Counts 3 through 13, as part of a campaign to terrorize the civilian population of the Republic of Sierra Leone,” (para. 31). There is the further allegation that: “The AFRC/RUF also committed the crimes to punish the civilian population for allegedly supporting the elected government of President Ahmed Tejan Kabbah and factions aligned with that government, or for failing to provide sufffĳicient support to the AFRC/RUF.” (para. 31). The Chamber’s interpretation of the above extracts is that the same crimes which were committed to terrorize the civilian population, and those set forth in

14 Sesay, supra note 1, at para. 23 per Judge Thompson. 162 part ii paragraphs 32 through 52 and also charged in Counts 3–13 were the same crimes that were committed to punish the civilian population. The Chamber is strongly of the view that any other interpretation is tantamount to doing violence to the language of the Indictment. From the Chamber’s perspective, the phrase “collective punishments” is not problematic; what acts constitute “collective punishments” is a function of evidence that will be determined at the trial. The Defence contention, therefore, fails. 24. The Chamber notes with interest that relying on a proposition found at page 104 of his recently published book,15 learned Counsel for the Defence made this submission at paragraph 35 of his Motion under the theme “Criteria Deriving From Case Law with Respect To Forms of Indictment”: “Therefore, the indictment should not prevent the defence in, for example, investigating the potential alibi or in the cross-examination of witnesses. In the event the identity of victims, place and date of the events and other factual elements are more material, the degree of specifĳicity is required to be more particular.” Evidently, as a proposition deducible from the ICTY case-law on the subject, learned Counsel is correct in referencing the point. But he himself rightly notes, at the same page, that the ICTY held in Kvocka case16 that “the massive scale of crimes (……….) make it impractical to require a high degree of specifĳicity in such matters as the identity of the victims and the dates for the commission of crimes.” The citation also references the Krnojelac17 decision as authority for the proposition that “albeit … the indictment must enable the accused and the defence to fĳinally and adequately prepare the defence so that it must provide (some) information as to the identity of victims, place, date of the alleged crimes and means by which the offfence was committed.” The clear efffect, in the Chamber’s view, of Kvocka is to postulate, as learned Counsel himself acknowledges, that specifĳicity in cases of such extraordinary crimes, as alleged, is not absolute. This view of the law is consistent with the principles developed by this Court in Sesay, relying persuasively upon logically coherent and consistent decisions of ICTY and ICTR on the subject. 25. Based upon those principles and consistent with the decision in Sesay, the Chamber fĳinds that the Indictment, as a whole, except in relation to the use of the formulations “but not limited to these events” “including, but not limited to,” “included but were not limited to,” contains sufffĳicient information to put the Accused on

15 Geert-Jan Alexander Knoops, An Introduction to the Law of International Criminal Tribunals, A Comparative Study, New York: Transnational Publishers, 2003. 16 Supra note 11. 17 “Decision on the Defence Preliminary Motion on the Form of the Indictment,” IT-99-25, 24 February 1999. interlocutory decisions – trial chamber 163 notice as to the charges against him. The Chamber also fĳinds that, in the context of the extraordinary character of the crimes alleged, the dates, locations and offfences charged are sufffĳiciently clear to notify the Accused of the charges against him as one of those who allegedly “bear the greatest responsibility” for the said crimes, and to enable him to put forward the defence of alibi. Further, the Chamber does not fĳind legally compelling and cogent the contention that specifĳicity is required to enable an accused person to engage in cross-examination of witnesses. Of course, the Chamber agrees with learned Counsel that the requirement of specifĳicity is part and parcel of the notion of a fair trial. However, the Chamber wishes to emphasize that it remains true (as noted in paragraph 23) that, in the ultimate analysis, the crux of the matter is whether the Prosecution have proved their case beyond a reasonable doubt predicated upon the charges as formulated. 26. In conclusion, based on the analysis in paragraphs 5–25 herein and a thorough view of the Sample Indictments and Charges contained in Appendix H of Archbold,18 the Chamber fĳinds the Indictment in substantial compliance with Article 17(4)(a) of the Court’s Statute and Rule 47(C) of the Rules as to its formal validity. AND BASED ON THE FOREGOING DELIBERATION, THE CHAMBER HEREBY DENIES THE DEFENCE MOTION in respect to the several challenges raised as to the form of the Indictment except as regards the challenge hereinbefore (paragraph 17) found to be meritorious and upheld, an ORDER to which efffect is set out in extenso in the annexure hereto for the sake of completeness.

Done at Freetown on the 19th day of November, 2003

Judge Bankole Thompson Presiding Judge, Trial Chamber

18 International Criminal Courts, Practice, Procedure and Evidence, Sweet and Maxwell, London, 2003, pages 1409–1481. 164 part ii

ANNEXURE TO THE DECISION AND ORDER ON DEFENCE PRELIMINARY MOTION FOR DEFECTS IN THE FORM OF THE INDICTMENT

THE SPECIAL COURT FOR SIERRA LEONE (“the Special Court”), SITTING as Trial Chamber (“the Trial Chamber “) composed of Judge Bankole Thompson, Presiding Judge, Judge Pierre Boutet and Judge Benjamin Mutanga Itoe; BEING SEIZED of the Defence Preliminary Motion for Defects in the Form of the Indictment fĳiled on the 16th day of October, 2003 on behalf of Santigie Borbor Kanu (“the Motion”) pursuant to Rule 72(B)(ii) and (D) of the Rules; CONSIDERING that the said Motion is one which, according to Rule 72(B)(ii), falls within the jurisdiction of the Trial Chamber for determination; NOTING that the several challenges raised by the Defence in the Motion are as to alleged defects in the form of the Indictment against Santigie Borbor Kanu approved by Judge Pierre Boutet on the 16th day of September, 2003 sitting as designated Judge of the Trial Chamber pursuant to Rules 28 and 47 of the Rules; CONSIDERING ALSO the paramount importance of the right of the Accused to object preliminarily to the formal validity of the Indictment as distinct from raising the substantive issue as to whether the criteria for approving the Indictment were satisfĳied, and the need to keep the two issues separate and distinct; HAVING METICULOUSLY EXAMINED the merits of the challenges and submissions by the Defence in support of the Motion alongside those contained in the Prosecution’s Response, and those of the Defence in their Reply; CONVINCED that the several challenges raised by the Defence as to the formal validity of the Indictment, except two, are devoid of merit; and having so ruled in the Decision herein; HEREBY DENIES THE SAID MOTION AND ORDER as follows: (i) that the Defence Preliminary Motion for Defects in the Form of the Indictment fĳiled on the 16th day of October, 2003 on behalf of Santigie Borbor Kanu is denied in so far it relates to all challenges except those found to be meritorious and upheld in paragraph 17 of the Decision; (ii) that consistent with the qualifĳication to (i) above the Prosecution elect either to delete in every count and wherever it appears in the Indictment the phrases “but not limited to those events,” “including but not limited to,” and “included, but were not limited to” or provide in a Bill of Particulars specifĳic additional events alleged against the Accused in each count; interlocutory decisions – trial chamber 165

(iii) that the aforesaid Amended Indictment or Bill of Particulars be fĳiled within 7 days of the date of the service of this Decision and also on the Accused according to Rule 50 of the Rules; (iv) that this Annexure is deemed to form part of the Decision herein.

Done at Freetown on the 19th day of November 2003

Judge Bankole Thompson Presiding Judge

THE TRIAL CHAMBER

Before: His Lordship, the Rt. Hon. Judge Benjamin Mutanga Itoe, (Designated Judge) Registrar: Robin Vincent Date: 24 November 2003 PROSECUTOR Against Santigie Borbor Kanu (Case No.SCSL-2003-13-PT)

DECISION ON THE PROSECUTION MOTION FOR IMMEDIATE PROTECTIVE MEASURES FOR WITNESSES AND VICTIMS

Office of the Prosecutor: Defence Counsel: Luc Côté, Chief of Prosecutions Geert-Jan Knoops, Defence Counsel Robert Petit, Senior Trial Counsel Boi-Tia Stevens, Assistant Trial Counsel 168 part ii

THE SPECIAL COURT FOR SIERRA LEONE (“the Special Court”), WITH Judge Benjamin Mutanga Itoe, sitting as the Designated Judge pursuant to Rule 28 of the Rules of Procedure and Evidence (“the Rules”); SEIZED of the Prosecution Motion for Immediate Protective Measures for Witnesses and Victims and for Non-public Disclosure and Urgent Request for Interim Measures until Appropriate Protective Measures are in Place (“the Motion”), fĳiled on the 30th day of September 2003; CONSIDERING the Response thereto (“the Response”), fĳiled on the 8th day of October 2003 by the Defence Counsel on behalf of the Accused Santigie Borbor Kanu (“the Accused”); CONSIDERING the Prosecution’s Reply thereto (“the Reply”), fĳiled on the 16th day of October 2003; CONSIDERING FURTHER the Decision on the Urgent Request for Interim Measures until Appropriate Protective Measures are in Place, rendered by Judge Pierre Boutet on the 15th day of October, 2003; CONSIDERING the Statute of the Special Court, in particular Articles 16 and 17 thereof, and Rules 7, 53, 54, 66, 68, 69 and 75 of the Rules.

NOTING THE SUBMISSIONS OF THE PARTIES; AFTER HAVING REVIEWED AND CONSIDERED ALL THE ARGUMENTS; DECIDES AS FOLLOWS: 1. This Application by the Prosecution/Applicant for the Granting of Imme- diate Protective Measures for the Witnesses and Victims and for Non- Disclosure, fĳiled in the Registry on the 30th day of September, 2003, is before me for adjudication as a Designated Judge of the Trial Chamber under the provisions of Rule 28 of the Rules of Procedure and Evidence of the Special Court. 2. In reply to the Application, the Respondent fĳiled a Response on the 8th day of October, 2003, and the Applicant followed up by fĳiling a reply to the submissions of the Respondent on the 16th day of October, 2003. 3. In this Motion, the Applicant is seeking an Order for immediate measures to protect the identity of witnesses and the confĳidentiality of all non- public materials disclosed to the Defence. The Prosecution contends that an Order to this efffect is necessary so as to take adequate measures to safeguard the security and privacy of witnesses and victims and the integrity of the evidence as well as that of the instant proceedings. interlocutory decisions – trial chamber 169

4. The Applicant submits that providing redacted material consisting of the blackening of any information in witnesses’ statements and interview reports which could reveal the identity of witnesses and victims is an appropriate measure for ensuring the privacy and protection of victims and witnesses which, according to them, is consistent with the rights of the Accused. 5. The circumstances that have led to this application are that the Respon- dent, SANTIGIE BORBOR KANU, in a 17 count Indictment preferred against him by the Prosecutor of the Special Court for Sierra Leone, is alleged to have, in the territory of the Republic of Sierra Leone since the 30th of November, 1996, committed various offfences against international humanitarian law as defĳined in the Geneva Convention of 12th August, 1949, and enshrined in Article 1 of the Agreement dated the 16th day of January, 2002, between the United Nations and the Government of Sierra Leone on the establishment of the Special Court, as well as under Articles 1, 2, 3, 4 and 5 of the Statute of the said Court which is annexed to and forms part and parcel of the aforementioned Agreement. 6. In an accusatorial system of criminal justice that is currently practised in International Criminal Tribunals, the Statute, as does that of the Special Court, provides for adequate protection and safeguards for both the Prosecution on one hand, and the Defence on the other, in the conduct of their cases at all stages of the proceedings. 7. In this regard, Article 17(2) of this Statute stipulates that the Accused shall be entitled to a fair and public hearing subject to measures ordered by the Special Court for the protection of victims and witnesses. In addition, the Accused, under Article 17(4)(b) of the Statute has the right to adequate time and facilities to prepare for his defence and under Article 17(4)(e), he reserves the right to examine or have examined, the witnesses against him or her and to obtain the attendance and examination of witnesses on his or her behalf under the same conditions as witnesses against him or her. 8. As regards the Prosecution and the witnesses or victims whose testimony serves to prove their case, Article 17(2) acknowledges the inherent jurisdiction of the Special Court to ordain measures aimed at protecting these victims and witnesses. Indeed, Article 16(4) of the Statute authorises the Registrar to create a Witnesses and Victims Unit which, in consultation with the Prosecutor, shall provide protective measures and security arrangements and other appropriate assistance for witnesses and victims who appear before the Court and others who are at risk on account of testimony given by such witnesses. 9. Still on the protection of witnesses, Rule 69(A)(B)(C) of the Rules, as a follow up and indeed, as a reinforcement of the protection principle 170 part ii

provided for in Article 16(4) of the Statute, lays down conditions which protect both the rights of the Prosecution witnesses and victims on one hand, and those of the Accused on the other in relation to what extent and duration these protective measures can be accorded so as not to prejudice the right of the defence to prepare for the trial. 10. On the jurisdiction and competence of the Special Court, Rule 75(A) provides that a Judge or a Chamber may, on its own motion or at the request of either Party or of the victim or witness concerned, or of the Victims and Witnesses Unit, order appropriate measures to safeguard the privacy and security of victims and witnesses, provided that the measures are consistent with the rights of the Accused. 11. It is in the light of the foregoing institutional legal framework that the Prosecution/Applicant is seeking an Order for the protection of the following group of witnesses who fall under three categories: (i) Witnesses who presently reside in Sierra Leone and who have not afffĳirmatively waived their right to protective measures; (ii) Witnesses who presently reside outside Sierra Leone but who have relatives in Sierra Leone, and who have not afffĳirmatively waived their rights to protective measures and; (iii) Witnesses residing outside West Africa who have requested protective measures. 12. To efffectively attain this objective, the Applicant is urging the Court to issue the following Orders: (i) An Order allowing the Prosecution to withhold identifying data of the persons the Prosecution is seeking protection for as set forth in paragraph 16 or any other information which could lead to the identity of such person to the Defence until twenty-one (21) days before the witness is to testify at a trial; and consequently allowing the Prosecution to disclose any materials provided to the Defence in a redacted form until twenty-one (21) days before the witness is to testify at a trial, unless otherwise ordered; (ii) An Order requiring that the names and any other identifying information concerning all witnesses, be sealed by the Registry and not included in any existing or future records of the Court; (iii) An Order permitting the Prosecution to designate a pseudonym for each witness in Court proceedings, communications and discussions between the parties to the trial, and the public; it is understood that the Defence shall not make an independent determination of the identity of any protected witnesses or encourage or otherwise aid any person to attempt to determine the identity of any such person; (iv) An Order that the names and any other identifying information concerning all witnesses described in paragraph 23(a), be communicated only to the Victims and Witnesses Unit personnel by the Registry interlocutory decisions – trial chamber 171

or the Prosecution in accordance with established procedure and only in order to implement protection measures for these individuals; (v) An Order prohibiting the disclosure to the public or the media of the names and any other identifying data or information on fĳile with the Registry, or any other information which could reveal the identity of witnesses and victims, and this order shall remain in efffect after the termination of the proceedings in this case; (vi) An Order prohibiting the Defence from sharing, discussing or revealing, directly or indirectly, any disclosed non-public materials of any sort, or any information contained in any such documents, to any person or entity other than the Defence; (vii) An Order that the Defence shall maintain a log indicating the name, address and position of each person or entity which receives a copy of, or information from, a witness statement, interview report or summary of expected testimony, or any other non-public material, as well as the date of disclosure; and that the Defence shall ensure that the person to whom such information was disclosed follows the Order of non-disclosure; (viii) An Order requiring the Defence to provide to the Chamber and the Prosecution a designation of all persons working on the Defence team who, pursuant to paragraph 23(f) above, have access to any information referred to in paragraphs 23(a) through 23(e) above, and requiring the Defence to advise the Chamber and the Prosecution in writing of any changes in the composition of this Defence team; (ix) An Order requiring the Defence to ensure that any member leaving the Defence team remits to the Defence team all disclosed non-public materials; (x) An Order requiring the Defence to return to the Registry, at the conclusion of the proceedings in this case, all disclosed materials and copies thereof, which have not become part of the public record; (xi) An Order that the Defence Counsel shall make a written request to the Trial Chamber or a Judge thereof, for permission to contact any protected witness or any relative of such person, and such request shall be timely served on the Prosecution. At the direction of the Trial Chamber or a Judge thereof, the Prosecution shall contact the protected person and ask for his consent or the parents or guardian of that person if that person is under the age of 18, to an interview by the Defence, and shall undertake the necessary arrangements to facilitate such contact. 13. In seeking these Orders, the Applicant advances the following arguments: “That the provisions of Rules 69 and 75 of the Rules of the Special Court are similar to those of Rules 69 and 75 of the Rules of the ICTR and of the ICTY 172 part ii

and that the jurisprudence of the ICTR and of the ICTY in those matters are convincing precedents for the Special Court to come to the same conclusions.” 14. In this regard, the Applicant argues that the said jurisprudence of the ICTR and of the ICTY is settled on the fact that the party seeking protective measures must show the existence of a real fear for the safety of a witness or the witness’ family and an objective basis for the fear. It is argued that under Rule 69, there is a need to show the existence of exceptional circumstances and as was decided by the ICTY in the Tadic case, the existence of a real fear need not be shown by the witness himself or herself but may be shown by others. 15. The Applicant to justify the application and particularly, the element of “exceptional circumstances” in Rule 69, has submitted the following documentary evidence: (i) A confĳidential Declaration by Mr. Lahun, an Investigator dated 19th September, 2003, in which he afffĳirms that the civilian population which may be called upon to appear as witnesses before the Special Court have expressed concern about their safety if it becomes known that they are cooperating with the Court, particularly if their identities are revealed to the general public; (ii) A Declaration by Dr. White, Chief of Investigations, in which he afffĳirms that the security situation in most of Sierra Leone and its neighbouring countries is volatile. He states that the population live very closely and these include victims, witnesses an sympathisers of the indictees and that there have been instances involving interference with, and intimidation of, the Prosecutor’s witnesses, some of who have experienced actual threats and attempts on their lives. He concludes that there is a general state of fear and apprehension amongst the witnesses; (iii) A Declaration dated 25th April 2003 of Mr. Alan Quee, Director of Post Conflict Reintegration Initiative for Development (PRIDE) an NGO which deals with ex-combatants afffĳirming that Ex-combatants are worried about being called to testify in the Special Court because they fear being killed by their former Commanders. He concludes by saying that “[t]he threat of violence towards those who are seen as being with the Special Court is very real.” (iv) A Declaration dated 27th September 2003 of Saleem Vahidy, Chief of the Witnesses and Victims Unit of the Special Court afffĳirming that specifĳic threats have been issued against some of the witnesses to the extent that active effforts are being made by members of interested factions to determine their exact locations probably with a view to carrying out reprisals; interlocutory decisions – trial chamber 173

(v) A Declaration dated 29th April, 2003 of Keith Biddle, the former Inspector General of Police, afffĳirming that security conditions in Sierra Leone, despite the presence of UNAMSIL, remain volatile. He afffĳirms that this situation poses a real threat to the security of victims and potential witnesses. In his view, the Police system does not have the capacity to guarantee the safety of witnesses or prevent them from injury or intimidation; (vi) A Declaration dated 19th September, 2003 of Brima Acha Kamara, Inspector General of Sierra Leone Police confĳirms the entire declaration of his predecessor, Keith Biddle. 16. The Prosecution bases its application for protection of the witnesses and victims and non-disclosure in the case against the Respondent on the well- founded fears and apprehensions expressed in the aforementioned Declarations for the safety of potential witnesses. 17. The Applicant further argues that “the future of this and other cases before the Special Court for Sierra Leone depends on the ability and willingness of witnesses to give testimony and provide the necessary evidence (which for the most part, is geared towards incriminating indictees like the Respondent in this case). Threats, harassment, violence, bribery and other intimidation, interference and obstruction of justice, the Applicant argues, are serious problems for both the individual witnesses and the Court’s ability to accomplish its mandate. The protective measures requested by the Prosecution would protect witnesses and victims against this kind of misconduct and are designed to ensure their safety as well as that of their families.” 18. In reply, the Respondent observes that the protection sought is for all the witnesses in the case without distinction and that this is not in compliance with the provisions of Article 17(4) of the Statute. It is submitted by the Respondent that the protection, if extended to all the witnesses, will be seriously detrimental to the rights of the Accused under Article 17(4)(b) of the Statute. 19. The Respondent submits that the use of the words “a witness” in Rule 69(A) underscores the point that the drafters of the Rules intended that ‘non-disclosure of identity is to be assessed on an individual case-by-case basis’ and not, as the Applicant contend, to be used as a tool for the systematic protection of all material witnesses or several categories of them from disclosure of identity before hand. 20. The Respondent further argues and adopts Michael Scharf’s commentary on the ICTR decisions on Motions for the Protection of Defence Witnesses in the case of the Prosecutor v. Kayishema and Ruzindana, where he said that the principle of conducting criminal trial proceedings which are often open to the public and press, should be respected and as the Respondent 174 part ii

adds as a buttressing argument, “in the absence of clear and overwhelming particularised grounds for closing the proceedings with respect to ‘each witness.’ ” 21. The Respondent concedes that there are categories of individuals, at least two, in his opinion, who may require protection under Rule 69(A) but argues that notwithstanding this categorisation, they must be particularised on the basis of concrete elements with respect to each individual witness. 22. Replying to the Respondent’s insistence on the legal implication of the words “a witness” in Rule 69(A), the Applicant relies on the defĳinition section of the Rules where Rule 2(B) states as follows: ‘In these Rules, the masculine shall include the feminine and the singular, the plural and vice versa.’ 23. The Applicant argues that it would be a wasteful use of the Court’s time and resources for the Prosecutor to bring individual witnesses at this stage of the pre-trial process. 24. Having so far considered the submissions of both parties, I would like to refer to and to recognise the extent of the application of the provisions of Article 20(3) of the Statute of the Special Court which stipulates as follows:

‘the Judges of the Appeals Chamber of the Special Court shall be guided by decisions of the Appeals Chamber of the International Tribunals for the former Yugoslavia and for Rwanda’ and to observe that although not expressly stated, this provision, by a necessary intendment, is also ordinarily applicable to the Trial Chamber of the Special Court where the Judges, without of course losing sight of some legal and factual variables and the environmental realities of Sierra Leone as against or in contrast to the situations in Rwanda and Yugoslavia and their realities, have been inspired by those decisions. 25. In fact, the fast emerging principle of protection of witnesses and victims which today is deeply rooted in the core dynamics of the International Criminal Justice system and procedures, is founded on the understanding that those “protégés” whose testimony is vital in establishing the case for the Prosecution and to some extent, that of the Defence, deserve a cloud of anonymity around them, at least for some time pending their appearance and testimony in Court. 26. This position is even the more so justifĳied because given the gruesome- ness of the nature of crimes for which they might be called upon to the feature as victims and/or witnesses, the circumstances surrounding these offfences, and the personality of the perpetrators, coupled with the fear of interlocutory decisions – trial chamber 175

recriminations on them or on members of their families, this temporary camouflage on their identity, even though it impugns, albeit temporarily, on the rights of the Accused and the proper conduct of his defence, appears plausible after all because it is quite in harmony with the revered objective we are committed to upholding, that is, to safeguard the integrity of the proceedings where some element of secrecy and in-camera procedures form an integral part; this, on the understanding of course, that the veil that would so far have shielded them from the Accused, is lowered at the crucial stage of the trial and in time to permit the Accused to enjoy and fully exercise, amongst others, his statutory right to a fair and public hearing guaranteed to him under Article 17 of the Statute of the Special Court. 27. In the determination therefore of applications on issues relating to the granting of protective measures to victims and witnesses, I think three factors, all of which I consider of public interest, should be borne in mind: (i) Firstly, acknowledging that the rights of the Accused as defĳined by the Statute and the Rules must be respected, and this, subject to measures, if any, ordered by the Court for the Protection of victims and witnesses; (ii) Secondly, taking cognisance of the rights and entitlements of victims and witnesses to some shielding and protection during the pre-trial phase and shortly before the trial commences, given the circumstances surrounding the commission of these offfences; and (iii) Thirdly, recognising, as was observed in the case of Kayishema v. Ruzindana, ‘the need to maintain a perfect balance between, on the one hand, the rights of the Accused to a fair trial, and on the other hand, the right of victims and witnesses as well as the interest of the International Community that justice is done in the most diligent manner possible.’ 28. In this regard and in the case of the Prosecution v. Allieu Kondewa, Case No. SCSL-2003012-PD of 10th October, 2003, also based on an application for Protective Measures for Victims and Witnesses, I had this to say on a related issue and I quote: “This balance is very difffĳicult to strike as the very thin line of demarcation separating the fundamental interests of the Accused to protect his entrenched legal and constitutional entitlements to a fair trial as against the statutorily evolving right of a witness or a victim to protection and non disclosure which is an emanation of International Statutes and Rules of practice in ad hoc and exceptional International Criminal jurisdictions, is too slim, or rather, too faint to ensure the equilibrium of the said balance without violating in one way or the other, one’s or the other’s legal rights.” 29. What, however, appears certain in my mind is that the doctrine of anonymity and non-disclosure, even though it might appear contradictory to, 176 part ii

is not necessarily inconsistent with the principles of a fair trial that are guaranteed to the Accused under Article 17(2) of the Statute because the lifting of the veil of anonymity before the calling of these shielded witnesses balances the legal claim to a status of and prerogative to protection and anonymity that they might have enjoyed all along with the leave of the Court. 30. Indeed, as Justice Brooking of the Supreme Court of Victoria stated in the case Jarvie and Another v. The Magistrate’s Court of Victoria at Brunswick and Others [1994] V.R. 84,88, and I quote: “The balancing exercise now so familiar in this and other fĳields of the law must be undertaken. On the other hand, there is public interest that the Defendant should be able to elicit (directly or indirectly) and to establish facts and matters, including those going to the credit, as may assist in securing a favourable outcome to the proceedings. There is also a public interest in the conduct by the Courts of their proceedings in public.” 31. What further appears to be palpably certain is that the protection given to these Victims and Witnesses is justifĳied because of the role they are expected to, and are in fact called upon to play in the administration of international criminal justice which is in conformity with what I stated, in the Ruling in the case of the Prosecutor v. Allieu Kondewa, cited earlier, and I quote: “… One of the goals targeted by the International community is to track down and bring before justice, those who bear the greatest responsibility for a breach of International Humanitarian Law by committing heinous crimes against humanity. In view of the particularly bloody, hostile, and vicious environment in which these gruesome offfences were cruelly perpetrated and the necessity to fulfĳil the procedural imperatives of an adversarial system of justice governing the Courts by providing witnesses to sustain the charges, a mechanism had to be worked out to achieve the targeted objectives. One of this is certainly to create incentives geared towards encouraging victims and witnesses of those crimes to testify, albeit, against those front-line perpetrators and one of these measures is to put in place, a protective wall between the victim or witness and the Accused so that neither the latter nor his sympathisers would identify the former for possible recriminations and eventual eliminations. It is only to this strategy that International Criminal Justice owes its exceptional survival, for, in the absence of these protected witnesses and victims, there will be no trials and consequently, no end to the criminal impunity that the International Community is endeavouring to contain and combat through the International Criminal Courts…” 32. The issue which the Trial Chamber of the Special Court has addressed all along is that the Applicant in cases of this nature, must show that the disclosure to the Accused and his defence team of the identity to the public of a victim or a witness at this stage would put them in danger or at risk. In fact, there must be some objective foundation for the fear that the witness interlocutory decisions – trial chamber 177

may be in danger or at risk: Archbold’s International Criminal Courts: Practice, Procedure and Evidence (2003) at Paragraph 8–64c. 33. The Applicant has, through the Declarations of some personalities who are actively involved in the investigations and post-war management structures and activities, shown that the risk and danger to the witnesses and the probability of their being tampered with is real if a Protection and a Non-Disclosure Order were not made to shield their identities pending the commencement of the trial during which time the rights of the Accused to a fair trial would be fully guaranteed. 34. The Respondent has raised objections to this application in so far as it seeks to globally protect all the witnesses and argues that this should rather be done on a case-by-case examination and appreciation so as to determine whether the measures are necessary for all the witnesses. 35. The Respondent has also raised and sustained the argument all along that the provisions of Rule 69(A) of the Rules of Procedure and Evidence talk of “a witness” and not “witnesses” and that this provision was not supposed to be used to shield all witnesses without a justifĳication being furnished by the Prosecution as to why they are seeking protection for all the witnesses they intend to use for purposes of establishing their case. 36. In a situation where the Trial Chamber, as at now, is estranged from the scenery and secrecy of the investigations, I cannot in advance, at least not before the commencement of the Pre-Trial Conferences, say, nor do I know, how many witnesses either the Prosecution or the Defence would call to make their cases. It is a question which at this moment, is entirely and only exclusively within the competence of the Prosecutor, and to some extent, the Defence, to provide a response. 37. This said however, I fĳind that the argument based on the mention of “a witness” to exclude other witnesses who are, or may equally be entitled to the measures stipulated under Rule 69(A), cannot stand in view of the provisions of Rule 2(B) of the Rules. Besides, Rule 69 is made pursuant to the provisions of the Statute which is the enabling instrument. In this regard, Article 16(4) of the Statute provides as follows:

“The Registrar shall set up a Victims and Witnesses Unit within the Registry. This Unit shall provide in consultation with the offfĳice of the Prosecutor, protective measures and security arrangements, counselling and other appropriate assistance for witnesses, victims who appear before the Court and others who are at risk on account of testimony given by such witnesses…” 38. Besides, Rule 69(B) of the Rules of stipulates that in the determination of protective measures for victims and witnesses, the Judge or the Trial Chamber may consult the Victims and Witnesses Unit. If the Respondent as he has done, raises the issue of singularity as far as the interpretation of 178 part ii

the words ‘a witness’ in Rule 69(A) is concerned, Rule 69(B) is in plural terms. In any event, Article 16(4) of the Statute talks of Victims and Witnesses (in plural terms) and therefore, impliedly renders, only to the extent of the words ‘or witness’ in the regulatory text, if it could ever be construed in singular terms, null and void, because the Regulatory Authority (The Plenary), which drafted the Rules of Procedure and Evidence, was not supposed to, and could not of course have allowed itself to act ultra vires since it had neither the powers nor the mandate to modify or to limit the scope of the application of Article 16(4) of the Statute, an integral part of the Enabling Act, that is the Agreement dated 16th January, 2002, on the Establishment of the Special Court for Sierra Leone, signed by Two High Contracting Parties, namely, the United Nations Organisation and the Government of Sierra Leone. 39. In order to attempt to get out of the dilemma of a case-by-case examination so strongly canvassed by the Respondent at this stage of the proceedings, it would be interesting to fĳind answers to the following questions. How many witnesses is the Prosecution holding for this trial? How many will they call to prove their case? Which of these witnesses is entitled to protection on a case-by-case basis as argued by the Respondent? 40. I fĳind it difffĳicult to answer any of these questions at the moment without prematurely delving into the trial process of examining the witnesses and their statements even before the trial begins. I indeed decline to encourage such an exercise which to my mind is complex, time consuming, and capable of unnecessarily protracting and complicating the proceedings and the process, in addition to the premature disclosure of even those witnesses who deserve the protection much more than others. I accordingly have no hesitation therefore in dismissing this argument for want of any remedial merit of fostering the interest of a fair and expeditious trial. 41. From the foregoing, I fĳind that unless exceptional cause to the contrary is shown by a Respondent in cases of this nature to warrant creating an exception, the option of globally protecting witnesses and victims, if chosen, instead of justifying such measures on a case-by-case basis, is legally well-founded and should be the rule, particularly so because as has been pointed out by the Trial Chamber in applications of this nature, it would be unrealistic to expect the Prosecution to carry the undue burden of having each witness narrate in specifĳic terms in a document, the nature of his or her fears as to the actual or anticipated threats or intimidation before the Chamber rules on the substantive application. 42. In the present case, I fĳind as a matter of fact that the Sierra Leonean society is still volatile and fragile as all indications are that it has not quite recovered from the memories, the ravages and the damage done by the interlocutory decisions – trial chamber 179

devastating civil war. As a result, the witnesses, victims and their families are very vulnerable and should they fail to benefĳit from protective measures, they would be exposed to all forms of risks and recriminations from the indictees or their sympathisers. 43. In this regard, I accord a lot of credence to the solemn, convincing, and uncontradicted individual Declarations by the core group of responsible Offfĳicials. I fĳind that their revelations and other issues which are highlighted in the submissions of the Applicant, coupled with the overall circumstances surrounding the case of this Respondent and that of other indictees of the same category, rise up to the standards required to sufffĳiciently demonstrate, inter alia, the prerequisite of “exceptional circumstances” enshrined in Rule 69(A) as an element to be demonstrated or shown in other to justify the granting of the measures envisaged under this Rule following the principle in the Tadic case. 44. I accordingly grant the Application and do make the following Orders: (a) The Prosecution should withhold identifying data of the persons the Prosecution is seeking protection for as set forth in paragraph 16 or any other information which could lead to the identity of such person to the Defence until twenty-one (21) days before the witness is to testify at a trial; and consequently allowing the Prosecution to disclose any materials provided to the Defence in a redacted form until twenty- one (21) days before the witness is to testify at a trial, unless otherwise ordered; (b) The names and any other identifying information concerning all witnesses, shall be sealed by the Registry and not included in any existing or future records of the Court; (c) The Prosecution shall designate a pseudonym for each witness in Court proceedings, communications and discussions between the parties to the trial, and the public; it is understood that the Defence shall not make an independent determination of the identity of any protected witnesses or encourage or otherwise aide any person to attempt to determine the identity of any such person; (d) The names and any other identifying information concerning all witnesses described in paragraph 23(a), shall be communicated only to the Victims and Witnesses Unit personnel by the Registry or the Prosecution in accordance with established procedure and only in order to implement protection measures for these individuals; (e) The disclosure to the public or the media of the names and any other identifying data or information on fĳile with the Registry, or any other information which could reveal the identity of witnesses and victims, is prohibited and this order shall remain in efffect after the termination of the proceedings in this case; 180 part ii

(f) The Defence is prohibited from sharing, discussing or revealing, directly or indirectly, any disclosed non-public materials of any sort, or any information contained in any such documents, to any person or entity other than the Defence; (g) The Defence shall maintain a log indicating the name, address and position of each person or entity which receives a copy of, or information from, a witness statement, interview report or summary of expected testimony, or any other non-public material, as well as the date of disclosure; and that the Defence shall ensure that the person to whom such information was disclosed follows the order of non-disclosure; (h) The Defence shall provide to the Chamber and the Prosecution a designation of all persons working on the Defence team who, pursuant to paragraph 23(f) above, have access to any information referred to in paragraphs 23(a) through 23(e) above, and requiring the Defence to advise the Chamber and the Prosecution in writing of any changes in the composition of this Defence team; (i) The Defence shall ensure that any member leaving the Defence team remits to the Defence team all disclosed non-public materials; (j) The Defence shall return to the Registry, at the conclusion of the proceedings in this case, all disclosed materials and copies thereof, which have not become part of the public record; (k) The Defence Counsel shall make a written request to the Trial Chamber or a Judge thereof, for permission to contact any protected witness or any relative of such person, and such request shall be timely served on the Prosecution. At the direction of the Trial Chamber or a Judge thereof, the Prosecution shall contact the protected person and ask for his consent or the parents or guardian of that person if that person is under the age of 18, to an interview by the Defence, and shall undertake the necessary arrangements to facilitate such contact.

45. THAT THESE ORDERS BE CARRIED OUT. Done in Freetown, this 24th day of November 2003

Judge Benjamin Mutanga Itoe THE TRIAL CHAMBER

Before: Judge Bankole Thompson, Presiding Judge Judge Benjamin Mutanga Itoe Judge Pierre Boutet Registrar: Robin Vincent Date: 22 January 2004 PROSECUTOR Against Santigie Borbor Kanu (Case No.SCSL-13-PT)

ORDER PURSUANT TO RULE 72(E) DEFENCE MOTION CHALLENGING THE JURISDICTION OF THE SPECIAL COURT RAISING SERIOUS ISSUES RELATING TO JURISDICTION ON VARIOUS GROUNDS AND OBJECTIONS BASED ON ABUSE OF PROCESS

Office of the Prosecutor: Defence Counsel: Luc Côté Geert-Jan Alexander Knoops Robert Petit Christopher Santora 182 part ii

THE SPECIAL COURT FOR SIERRA LEONE (“the Special Court”), SITTING as the Trial Chamber (“the Chamber”), composed of Judge Bankole Thompson, Presiding Judge, Judge Benjamin Mutanga Itoe and Judge Pierre Boutet; BEING SEIZED of the Motion Challenging the Jurisdiction of the Special Court, Raising Serious Issues Relating to Jurisdiction on Various Grounds and Objections Based on Abuse of Process, fĳiled on the 20th of October 2003 (“the Motion”), in relation to the criminal suit against Santigie Borbor Kanu (“the Accused”); CONSIDERING the Prosecution’s Response to the Motion fĳiled on the 30th of October 2003 (“the Response”); CONSIDERING the Defence Reply thereto fĳiled on the 5th of November 2003 (“the Reply”); NOTING the Motion on Abuse of Process Due to Infringement of Principles of Nullum Crimen Sine Lege and Non-Retroactivity as to Several Counts, fĳiled by the Defence on the 20th of October 2003; CONSIDERING the entire provisions of Rule 72 of the Rules of Procedure and Evidence (“the Rules”); CONSIDERING, in particular, the provisions of Rule 72(E) of the Rules which states that the Chamber shall refer to the Appeals Chamber for a determination as soon as practicable any preliminary motion which raises a serious issue relating to jurisdiction; CONSIDERING that the Indictment charges the Accused on several counts of Crimes Against Humanity, punishable under Article 2 of the Statute of the Special Court (“the Statute”), Violations of Article 3 Common to the Geneva Conventions and of Additional Protocol II, punishable under Article 3 of the Statute, and of Other Serious Violations of International Humanitarian Law, punishable under Article 4 of the Statute; CONSIDERING that the Defence seeks relief pursuant to Rule 72(B) and (E) of the Rules for the following reasons: 1. There are defects as to the international legal foundation of the Special Court on the grounds that: a. The Agreement between the United Nations and the Republic of Sierra Leone on the Establishment of the Special Court for Sierra Leone (“the Special Court Agreement”) of the 16th of January 2002 is a bilateral treaty between an international organisation and a State and as such cannot judicially amount to an international instrument which can set aside interlocutory decisions – trial chamber 183

certain constitutional rights and provision. Consequently, Article IX of the Peace Agreement Between the Government of Sierra Leone and the Revolutionary United Front of Sierra Leone of the 7th of July 1999 (“the Lomé Peace Agreement”) ought to be considered taking precedence over, inter alia Article 1 of the Special Court Agreement; b. Chapter XII of the Constitution exhaustively enumerates the sources of law in Sierra Leone without mentioning international law as such or bilateral agreements between the Government of Sierra Leone and international organizations. Therefore, without further national legislative measures the Special Court Agreement does not have direct efffect within the domestic legal system of Sierra Leone; c. The entering of a bilateral agreement which established the Special Court may be deemed to be unconstitutional as it infringes the sovereign rights of the people of Sierra Leone bestowed upon them by Article 5(2)(a) of Chapter XII of the Constitution; d. According to Article 120(2) of Chapter VII, Part I of the Constitution the people of Sierra Leone can, in principle, only be tried by their national courts. Furthermore, any law that is inconsistent with the Constitution shall be void and have no efffect pursuant to Article 171(15) of the Constitution. The Special Court Agreement cannot supersede the Constitution as the “Supreme Law” of the land; e. Pursuant to Article 169(3)(e) of Chapter XI of the Constitution, military courts martial, not the Special Court, have exclusive jurisdiction over Sierra Leonean servicemen such as the Accused; f. The transfer of nationals is an unconstitutional phenomenon resulting in lack of jurisdiction. The Constitution does not specifĳically refer to the eligibility of its nationals as to extradition to foreign courts. Accord- ing to Sierra Leonean domestic law such extradition may be possible presupposed the existence of an extradition treaty. However, the “transfer” of nationals to the Special Court prescribed in Article 17(2)(d) of the Statute is not within the contemplation of “extradition” under the domestic law provisions nor does it comply with the aforesaid Article and, therefore, the “transfer” of the Accused to the Special Court is deemed to be unconstitutional. 2. The amnesty clause in the Lomé Peace Agreement clearly afffects the jurisdiction of the Special Court: a. The Accused is covered by the judicial and factual scope of the amnesty provisions of Article IX of the Lomé Peace Agreement; b. It is an abuse of process, as enshrined in Rule 72(B)(v) of the Rules, for the Government of Sierra Leone to enter a bilateral agreement to establish the Special Court to prosecute persons to whom the Government has already granted amnesty; 184 part ii

c. The Special Court lacks jurisdiction for the crimes set forth in the Indictment, insofar as these are punishable under the Sierra Leonean domestic laws. 3. The Special Court cannot assume jurisdiction with regard to Superior Responsibility for crimes which were allegedly committed prior to assuming command or allegedly taking the position of a superior and, consequently, the Special Court cannot hear charges allegedly committed by the Accused prior to February 1998. AND GIVEN that the Defence submits that in light of the foregoing arguments, taken individually or in combination, the Special Court fails to have jurisdiction to try the case against the Accused; AND PRAYS the Special Court to dismiss the charges against the Accused in its entirety or partly with reference to the charges launched against the Accused insofar as related to the concept of superior responsibility for crimes allegedly committed before February 1998;

NOTING FURTHER THAT 1. The Defence has also raised in the Motion objections based on both lack of jurisdiction and abuse of process. Considering that the procedure followed for a motion based on lack of jurisdiction difffers from the procedure for a motion related to abuse of process, this practice is not instructive and can certainly lead to some confusion. 2. The Trial Chamber has authority pursuant to Rule 72(D) of the Rules to dispose of motions based on abuse of process, but not motions raising a serious issue relating to jurisdiction which must be in essence referred to the Appeals Chamber for determination pursuant to Rule 72(E). In combining these two grounds together in one motion the Trial Chamber has therefore no option but to refer the whole motion to the Appeals Chamber for its determination, if this Chamber fĳinds that the issue about jurisdiction is a serious one. This process, however, deprives the Applicant of obtaining a separate decision by the Trial Chamber on the abuse of process objection, including the possibility of a referral pursuant to Rule 72(F). 3. This approach is even more regrettable given the concurrent fĳiling of the Motion on Abuse of Process Due to Infringement of Principles of Nullum Crimen Sine Lege and Non-Retroactivity as to Several Counts, also fĳiled on the 20th of October 2003 and noted above. The Chamber is of the view that it would have been more appropriate and much preferable for the Defence interlocutory decisions – trial chamber 185

to combine all objections relating to abuse of process in one motion and all objections relating to lack of jurisdiction in a separate motion, rather than fĳiling multiple motions that raise over-lapping issues.

NOW THEREFORE, THE CHAMBER, PURSUANT TO RULE 72(E) OF THE RULES, FINDS that the foregoing submissions raise a serious issue relating to the jurisdiction of the Special Court to try the Accused on all the counts of the Indictment that have been issued against him; REFERS this Application to the Appeals Chamber of the Special Court for determination;

ORDERS 1. That the Defence fĳile with the Appeals Chamber additional written submissions within 14 days of the receipt of this Order; 2. That any response to submissions fĳiled under paragraph 1 above be fĳiled with the Appeals Chamber within 14 days thereof; 3. That any reply thereto be fĳiled with the Appeals Chamber within 7 days; and 4. That the reference of this Motion to the Appeals Chamber shall not operate as a stay of the trial of the Accused. Done at Freetown this 22nd day of January 2004.

Justice Bankole Thompson Justice Benjamin Mutanga Itoe Justice Pierre Boutet Presiding Judge, Trial Chamber

THE TRIAL CHAMBER

Before: Judge Bankole Thompson, Presiding Judge Judge Benjamin Mutanga Itoe Judge Pierre Boutet Registrar: Robin Vincent Date: 27 January, 2004 PROSECUTOR Against Issa Hassan Sesay (Case No.SCSL-2003-05-PT) Alex Tamba Brima (Case No.SCSL-2003-06-PT) Morris Kallon (Case No.SCSL-2003-07-PT) Augustine Gbao (Case No.SCSL-2003-09-PT) Brima Bazzy Kamara (Case No.SCSL-2003-10-PT) Santigie Borbor Kanu (Case No.SCSL-2003-13-PT)

DECISION AND ORDER ON PROSECUTION MOTIONS FOR JOINDER

Office of the Prosecutor: Defence Counsel for Issa Hassan Sesay: Luc Coté Timothy Clayson Robert Petit Wayne Jordash Boi-Tia Stevens Abdul Serry Kamal Defence Counsel for Alex Tamba Defence Counsel for Morris Kallon: Brima: James Oury Terence Terry Steven Powles Karim Khan Melron Nicol-Wilson Defence Counsel for Augustine Defence Counsel for Brima Bazzy Kamara: Gbao: Ken Fleming Girish Thanki C.A. Osho Williams Andreas O’Shea Ken Carr Defence Counsel for Santigie Borbor Kanu: Geert-Jan Alexander Knoops 188 part ii

THE SPECIAL COURT FOR SIERRA LEONE (“Special Court”), SITTING as the Trial Chamber composed of Judge Bankole Thompson, Presiding Judge, Judge Benjamin Mutanga Itoe and Judge Pierre Boutet (“Chamber”); BEING SEIZED of six (6) motions fĳiled by the Offfĳice of the Prosecutor (“Prosecution”) on 9 October 2003 for joinder of the trials of the Accused in Prosecutor v. Issa Hassan Sesay (Case No.SCSL-2003-05-PT), Prosecutor v. Alex Tamba Brima (Case No.SCSL-2003-06-PT), Prosecutor v. Morris Kallon (Case No. SCSL-2003-07-PT), Prosecutor v. Augustine Gbao (Case No.SCSL-2003-09PT) Prosecutor v. Brima Bazzy Kamara (Case No.SCSL-2003-10-PT), and Prosecutor v. Santigie Borbor Kanu (Case No.SCSL-2003-13-PT) (“Motions”); NOTING THAT Counsel for Issa Hassan Sesay fĳiled a Response on 18 November 2003 to which the Prosecution fĳiled a Reply on 21 November 2003; NOTING ALSO THAT Counsel for Alex Tamba Brima fĳiled a Response on 15 October 2003 to which the Prosecution fĳiled a Reply on 17 October 2003; NOTING ALSO THAT Counsel for Morris Kallon did not fĳile a Response; NOTING ALSO THAT Counsel for Augustine Gbao fĳiled a Response on 31 October 2003; NOTING ALSO THAT Counsel for Santigie Borbor Kanu fĳiled a Response on 16 October 2003, to which the Prosecution fĳiled a Reply on 20 October 2003; NOTING ALSO THAT Counsel for Brima Bazzy Kamara fĳiled a Response on 18 November 2003, to which the Prosecution fĳiled a Reply on 20 November 2003; NOTING FURTHER THAT on 2 December 2003 the Chamber heard oral arguments from the parties, CONSIDERING THE SUBMISSIONS AND ARGUMENTS OF THE PARTIES

I. THE MOTIONS

A. The Prosecution Submissions 1. Pursuant to Rule 73 and Rule 48(B) of the Rules, the Prosecution seeks that the Accused Issa Hassan Sesay, Alex Tamba Brima, Morris Kallon, Augustine Gbao, Brima Bazzi Kamara and Santigie Kanu be jointly tried for the following reasons:

(i) The circumstances of this case meet the requirements for joinder 2. The Prosecution submitted that the requirements for joinder under the Rules of Procedure and Evidence of the Special Court (“Rules”) are clearly met by the interlocutory decisions – trial chamber 189 circumstances in this case. The crimes alleged against the Accused Sesay, Brima, Kallon, Gbao, Kamara and Kanu are crimes which formed part of a common scheme to gain efffective control of the territory and population of Sierra Leone, as alleged in each of their Indictments. The Indictments against the aforementioned Accused are almost identical, especially in material particulars. The offfences charged are exactly the same. Except in respect of the Accused Kamara and Kanu, the arguments in respect of time and locations are the same. The Accused are commonly alleged to have been members of the senior leadership of the Revolutionary United Front (“RUF”) and/or the Armed Forces Revolutionary Council (“AFRC”) and of the RUF and AFRC alliance during the relevant time period; and committed the crimes charged in their senior leadership capacity. The case also meets the guidelines for joinder established by the jurisprudence of the International Criminal Tribunal for Rwanda (“ICTR”), for example the decision in Prosecutor v. Nyiramasuhuko et al.1 (ii) A joint trial would serve the interests of justice 3. The interests of justice are best served by trying all the Accused together. Given the similarity of the facts of the case against each Accused, a joint trial would reduce the risk of contradictions, inconsistencies or discrepancies in decisions rendered in separate trials. In support of this submission, the Prosecution cited the decision of the ICTR in Prosecutor v. Kayishema,2 and the decision of the International Criminal Tribunal for the Former Yugoslavia (“ICTY”) in Prosecutor v. Brdanin and Talic.3 Separate trials could lead to other severe practical difffĳicul- ties were the judgment in a fĳirst trial to be appealed with subsequent trials yet to start or in progress. There is also the possibility of the same factual issues being considered simultaneously by a Trial Chamber and an Appeal Chamber. In addition, there is the possibility of the Trial Chamber in separate trials reaching diffferent decisions on the same question of law. Further, because the Indictments are identical, the majority of the evidence to be tendered by the Prosecution against each Accused will overlap; hence a joint trial would obviate the difffĳiculty of dupli- cation of evidence. Furthermore, a joint trial, as opposed to separate trials, promotes efffĳicient administration of justice by eliminating the possibility of one hundred and sixty (160) potential Prosecution witnesses being called upon to testify in six (6) separate trials and that of the consequential efffects of (a) traumatisation, (b) re-traumatisation, and (c) concerns for the physical security of such potential witnesses.

1 ICTR-97-21-I, ICTR-97-29A and B-I, ICTR-96-15-T, ICTR-96-8-T, Decision on the Prosecution’s Motion for Joinder of Trials, 5 October 1999 (“Nyiramasuhuko Decision”), paras. 10–12. 2 ICTR-95-1-T, Decision on the Joinder of the Accused and Setting the Date for Trial, 6 November 1996. 3 IT-99-36, Decision on Motions by Momir Talic for a Separate Trial and for Leave to File a Reply, 9 March 2000, para. 31. 190 part ii

(iii) A joint trial would not deny the Accused any fundamental right 4. In the present case, joinder is not precluded by Rule 82(B) of the Rules.4 A joint trial would not deprive any of the Accused of any fundamental right that would otherwise be accorded in a separate trial nor of the right to a fair trial guaranteed by Article 17 of the Statute of the Special Court (“Statute”). A joint trial would indeed more fully protect each Accused’s right to trial without undue delay, as required by Article 17(4)(c) of the Statute.5 Due to the fact there is only one Trial Chamber, the possibility existing for an additional Trial Chamber, separate trials would almost certainly delay the trials of some of the Accused whereas joinder would expedite such trials. A joint trial would not result in any conflict of interest leading to serious prejudice to the Accused due to the fact that such trials will be conducted by professional Judges as opposed to lay juries. In support of this submission, the Prosecution cited the recent decision of this Court in Prosecutor v. Augustine Gbao,6 and the ICTY decision in Prosecutor v. Delalic et al.7 Finally, joinder of these cases would be consistent with the evolving international jurisprudence of international criminal tribunals. 5. By way of relief the Prosecution seeks both an order that the Accused be tried jointly and an order that a single, consolidated indictment be prepared as the Indictment on which the joint trial shall proceed, to which the Registry should assign a new case number. 6. In their oral arguments before the Chamber, Counsel for the Prosecution reinforced and elaborated upon their written submissions as set out in the following paragraphs. They also put forward an oral Consolidated Reply to the Defence Responses and oral arguments, a summary of which appears below.

4 Rule 82 states that: “(A) In joint trials, each accused shall be accorded the same rights as if he were being tried separately. (B) The Trial Chamber may order that persons accused jointly under Rule 48 be tried separately if it considers it necessary to avoid a conflict of interests that might cause serious prejudice to an accused, or to protect the interests of justice.” 5 Article 17 of the Statute, on the Rights of the Accused, at paragraph (4)(c), reads as follows: “4. In the determination of any charge against the accused pursuant to the present Statute, he or she shall be entitled to the following minimum guarantees, in full equality: … c. To be tried without undue delay; …” 6 SCSL-2003-09-I, Order on the Urgent Request for Direction on the Time to Respond to and/or an Extension on Time for the Filing of a Response to the Prosecution’s Motion, 16 May 2003, page 2. 7 IT-96-21-T, Decision on the Motion of the Prosecution for the Admissibility of Evidence, 19 January 1998. interlocutory decisions – trial chamber 191

B. The Defence Responses 7. The only Accused who offfered no opposition to the Motions was Augustine Gbao. However, most of the contested responses to the Motions presented by the various Counsel for the other Accused were based on a series of arguments that the Motions for a joint trial of the six Accused are premature at this stage of the proceedings.

(i) Readiness for trial 8. A general issue raised in the Defence responses was a lack of a clear indication by the Prosecution or the Special Court as to when the trials will commence. Similarly, several Counsel submitted that there was non-cognisance on the part of the Defence of ‘trial readiness’ or ‘perceived readiness’ for trial.

(ii) Procedural defĳiciencies in the motions 9. On behalf of Alex Tamba Brima, learned Defence Counsel, Terence Terry, consistent with the main thrust of his written submissions, argued that the Motions were premature because the individual Indictments (and the relevant orders approving them) were not annexed to the joinder Motions. Learned Counsel contended, quite forcefully, that exhibiting the said Indictments was a condition precedent with which the Prosecution had failed to comply and that though the procedural difffĳiculty was not incurable, the Prosecution had failed to do so, and that, in consequence the Motions should be dismissed. Furthermore, Counsel submitted that non-disclosure or failure to exhibit as part of the Motion a proposed “single consolidated indictment” on which a joint trial should proceed, if joinder were granted, was also a fatal defĳiciency. Similar submissions were made by learned Counsel Osho-Williams on behalf of Brima Bazzy Kamara.

(iii) Incomplete disclosure of prosecution witnesses 10. Several Counsel pointed to the fact that Orders of the Court pursuant to Rule 69 and 75 of the Rules granting protective measures to Prosecution witnesses meant that disclosure pursuant to Rule 66(A)(i) was not yet complete. On behalf of Morris Kallon, in respect of whom the Defence had not fĳiled a written response, learned Counsel Steven Powles, with leave of the Chamber, submitted that considering the possible two hundred and seventy (270) prosecution witnesses that may be called to testify at the trial of his client, it was too soon to know how many would in fact be called. He speculated that it might be that only twenty-thirty (20–30) would be needed to testify, contending that this would determine the length and expense of any trial. He again speculated that this number would impact on whether there could be added trauma created by separate trials, as the witnesses who may be called may not be victims. Counsel concluded 192 part ii that until all these uncertainties are resolved, it would be premature to grant a joinder. 11. Similarly, on behalf of Santigie Borbor Kanu, learned Counsel Professor Knoops noted that although some Prosecution witnesses’ statements against his client have been provided to the Defence, the lack of full disclosure rendered a determination of whether joinder would materially prejudice an individual Accused very difffĳicult. He invited the Chamber either to reject the Motion or adjourn it until all the Prosecution materials have been disclosed.

(iv) Joinder will amount to addition of new charges 12. On behalf of Brima Bazzy Kamara, learned Counsel Osho-Williams contended that it would not be in the interest of the Accused persons to be tried jointly or indicted now in a consolidated indictment, as it would amount to adding new allegations against his client. He was, therefore, opposing the Motion. Similarly, Counsel for Morris Kallon submitted that joinder of the Indictments would amount to amending each of them by adding new charges and allegations which can only be done by a specifĳic application to amend pursuant to Rule 50 of the Rules.8

(v) Preliminary objections not yet completed 13. Several Counsel, in their fĳiled responses to the Motions, raised the argument that the time has not yet elapsed for the purposes of lodging preliminary motions in respect of jurisdiction and defects in the form of the indictment. However, this ground was not pursued at length in their oral submissions.

(vi) Substantive responses (a) Joinder into a single trial is not in the interests of justice 14. Counsel for both Morris Kallon and Issa Hassan Sesay argued that joinder into a single trial would not be in the interests of justice. However, they both submitted that if the Chamber were minded to grant the joinder, the Accused persons allegedly belonging to the RUF and AFRC should be tried separately in two trials, as they were two separate organisations. (b) Joinder not justifĳied on grounds of “broad generalities” as to “same transaction” 15. Consistent with his written submissions, Counsel for Santigie Borbor Kanu noted that even in cases involving charges of common purpose the principle

8 Rule 50 of the Rules provides for the procedure to be followed by the Prosecution for requesting the amendment of an indictment before or after the initial appearance of an Accused. interlocutory decisions – trial chamber 193 of individual criminal responsibility remained paramount. Relying heavily on jurisprudence from the ICTR, he submitted that the Chamber should caution itself against granting the joinder motions on the basis of “broad generalities” as to the concept of the “same transaction.” A similar point was made by Counsel for Issa Hassan Sesay.

C. Prosecution’s Consolidated Reply: 16. In an oral consolidated reply, Ms Boi-Tia Stevens for the Prosecution argued that whether or not the RUF and the AFRC are diffferent organisations is irrelevant to the issue of whether there was a common scheme between them, and that the Indictments make it clear that they continued to control the territory of Sierra Leone, and that they had authority over the perpetrators of the crimes charged. Responding to the Defence contention that the Indictments should have been exhibited as part of the Motions, the Prosecution submitted that no such requirement exists in the Rules and that there is no analogous practice in the ICTY and ICTR because in international tribunals the Registry makes available to the Chamber documents that have already been fĳiled. On the issue of lack of certainty as to the number of potential Prosecution witnesses as an unresolved matter, the Prosecution submitted that clarifĳications can be sought after a joinder order has been made. The Prosecution also contended that a consolidated indictment would not result in added allegations or charges except for some dif- ferences in locations which would not afffect existing allegations. Concluding, the Prosecution noted that there was a slight diffference between the legal tests for joinder applied by the ICTY and ICTR, and submitted that should the Special Court decide to adopt the three-pronged test, the six joinder Motions fulfĳil the said test. AND HAVING DELIBERATED, DECIDES AS FOLLOWS: 17. The Chamber now proceeds to a consideration of the preliminary objections taken by the Defence as to the prematurity of the Motions.

II. Defence Objections

18. The Chamber recalls that some Defence Counsel argued strenuously that the joinder Motions were premature. Two submissions in respect of the prematurity argument, which are mere variations of the same theme, are that there was a lack of clear indication by the Prosecution or the Special Court as to when the trials will commence, and the non-cognisance, on the part of the Defence, of ‘trial readiness’ or ‘procedural readiness.’ With all due respect to the Defence, the Chamber does not see the relevance of this issue to the joinder equation, given the plain and ordinary meaning of Rule 48(B) of the Rules. 194 part ii

19. On the prematurity issue, it was also submitted that delayed disclosure of statements of Prosecution witnesses pursuant to Rules 66(A)(i), Rule 69 and Rule 75 of the Rules rendered the Motions premature. Relying on the Nyiramasuhuko Decision, the response of the Chamber to this submission is that despite the importance of timely disclosure, it is not an issue at this stage of the proceedings. The Chamber is of the view that even if the Prosecution had not disclosed such material, the rights of the Accused would not have been infringed by the operation of Rule 66(A)(i) of the Rules. It is noteworthy that the said Rule refers to the disclosure of material in support of evidence the Prosecutor intends to present at trial, not disclosure of material in support of a joinder motion. 20. The fĳinal submission as regards the argument based on prematurity put forward by the Defence is that the time has not yet elapsed for the purpose of lodging preliminary motions in respect of jurisdiction and defects in the form of the indictment. The Chamber does not see how the rights of the Accused to make preliminary motions in respect of jurisdiction and defects in the form of indictment are in any way derogated from or jeopardised by an application for joinder. 21. It was also submitted by some Defence Counsel that the failure of the Prosecution to exhibit both the original Indictments and the anticipated consolidated indictment to the Motion for judicial scrutiny amounted to non- compliance with a condition precedent. Even though this practice may be regarded as an advocacy for procedural tidiness in the preparation of motions and may have some merit in the sphere of procedural law in national legal systems, it is difffĳicult to require it as a mandatory rule in the context of international criminal tribunals where the Registry not only makes available to the Chamber documents that have already been fĳiled but also provides accessibility to them as public documents in the absence of non-disclosure orders. In so far as the Special Court is concerned, the Chamber is of the opinion that, due to the need for expeditiousness and flexibility in its processes and proceedings, recourse to procedural technicalities of this nature will unquestionably impede the Special Court in the expeditious dispatch of its judicial business. Therefore, with all due respect to learned Counsel for the Defence who forcefully canvassed this issue, the Chamber does not think, in the context of the juridical peculiarities of the Special Court, that it is necessary for the Prosecution to exhibit both the original and anticipated consolidated indictments to establish a basis for joinder.

III. Applicable Law

A. Relevant Basic Principles of International Criminal Law 22. As a general starting point for determining the substantive merits of the Prosecution’s Motions for joinder of the Indictments of the Accused persons interlocutory decisions – trial chamber 195 herein, the Chamber deems it imperative to restate that it is a cardinal principle of international criminal law that criminal responsibility is based on the notion of personal culpability.9 Jurisprudentially, the doctrine of personal culpability has its origins in, and is a transplant from, national criminal law systems,10 providing some theoretical support for the monist school of thought that international law and municipal law are constituent elements of a single, integrated universal normative order. In the specifĳic context of the Special Court’s evolving jurisprudence, as an international criminal tribunal, the doctrine of personal culpability is replicated in Article 6(1) of its Statute, which states that: “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 2–4 of the present Statute shall be individually responsible for the crime.”11 (emphasis added). 23. The statutory ambit of Article 6(1) of the Statute is sufffĳiciently broad to encompass individual criminal responsibility for any of the fĳive enumerated categories for any person who “planned,” “instigated,” “ordered,” “committed,” or “aided and abetted in the planning, preparation or execution of a crime” specifĳied in Articles 2–4 of the Statute. The clear statutory efffect of Article 6(1) is that criminal liability on an individual basis by an offfender or any other person who has been involved in the crime can be incurred in any one of the enumerated modes prescribed by the said Statute. Hence, the need for persons accused of crimes to be tried separately and individually, as a logical emanation of the principle of individual criminal culpability. 24. This fundamental principle notwithstanding, the Chamber wishes to observe that Article 6(1) also encompasses and recognises the doctrine of collective criminal responsibility in the sense that in the penal setting of war crimes, the most egregious offfences of the criminal law are “perpetrated by a collectivity of persons in furtherance of a common criminal design.”12 It is this principle of collective criminal responsibility that forms the doctrinal basis of the Prosecution’s Motions for joint trial in respect of the Accused persons herein who were separately indicted on diverse dates in the year 2003. The Motions, made pursuant to Rule 48(B) of the Rules, seek leave of this Trial Chamber that Issa Hassan Sesay, Alex Tamba Brima, Morris Kallon, Augustine Gbao, Brima Bazzy Kamara and Santigie Borbor Kanu, separately indicted for various Crimes against Humanity, Violations

9 See Prosecutor v. Dusko Tadic, Case No. IT-94-1-A, Appeal Judgment, Appeals Chamber, 15 July 1999, para. 186. 10 Id. para. 186 11 See also Article 7(1) of the Statute establishing the ICTY and Article 6(1) of the Statute establishing the ICTR, after which precedents Article 6(1) of the Special Court’s Statute was modeled. 12 Prosecutor v. Dusko Tadic, supra note 9, para. 193. 196 part ii of Article 3 Common to the Geneva Conventions and of Additional Protocol II and Other Serious Violations of International Humanitarian Law, be jointly tried pursuant to the aforesaid Rule 48(B) on the grounds that, using the exact language of the Rule, they are “accused of the same or diffferent crimes committed in the course of the same transaction.” What then, are the applicable provisions and jurisprudence?

B. Applicable Statutory Provisions 25. The Chamber notes that the rules governing the joinder of the Indictments within the jurisdiction of the Special Court are embodied in the founding instruments of the Special Court. Firstly, according to Article 17(2) of the Statute, every person accused of crime is entitled to a fair and public hearing. Secondly, and equally pre-eminent is Article 17(4)(c) which enjoins that a person accused of crime is entitled to be tried without undue delay. Thirdly, Rule 48(B) of the Rules of Procedure and Evidence of the Special Court expressly provides that: “Persons who are separately indicted, accused of the same or diffferent crimes committed in the course of the same transaction, may be tried together, with leave granted by the Trial Chamber pursuant to Rule 73.” In the Chamber’s judgment, the cumulative efffect of these statutory provisions is the vesting of a discretionary jurisdiction in the Special Court to grant the joinder of indictments, weighing the overall interests of justice and the rights of the accused person. In fact, the founding instruments of both the ICTY and ICTR are to the same efffect.

C. Applicable Jurisprudence 26. Although generally mindful of the desirability for the Special Court, as was stated in some of its prior Decisions on the Prosecutor’s Motions for Immediate Protective Measures for Witnesses and Victims and for Non-public Disclosure,13 to develop its own case law, it will, as a matter of principle, adhere to persuasive

13 See the Decisions of 23 May 2003 in Prosecutor v. Issa Hassan Sesay, SCSL-2003-05-PT at para. 11, Prosecutor v. Alex Tamba Brima, SCSL-2003-06-PT at para. 11, Prosecutor v. Morris Kallon, SCSL-2003- 07-PT at para. 12, Prosecutor v. Samuel Hinga Norman, SCSL-2003-08-PT at para. 11; and Prosecutor v. Moinina Fofana, SCSL-2003-11-PT, Decision of 16 October 2003 at para. 13; Prosecutor v. Brima Bazzy Kamara, SCSL-2003-10-PT, Decision of 23 October 2003 at para. 16, in each case per Judge Thompson as follows: “... it must be emphasized that the use of the formula “shall be guided by” in Article 20 of the Statute does not mandate a slavish and uncritical emulation either precedentially or persuasively, of the principles and doctrines enunciated by our sister tribunals.” See also Prosecutor v. Augustine Gbao, Case No. SCSL-2003-09-PT, Decision of 10 October 2003 where at para. 31 the Chamber observed per Judge Boutet that: interlocutory decisions – trial chamber 197 jurisprudential enunciations of its sister Tribunals, the ICTY and ICTR, with necessary adaptations of course, to fĳit into its own jurisprudence based on its Rules and local realities on the one hand, and the need to ensure uniformity in judicial rulings on interpretation and application of the procedural, evidentiary and substantive rules and principles of International Criminal Tribunals, on the other.14 27. Consistent with this broad discretionary power vested in the Court, it is necessary for the Chamber, in this fĳirst set of Motions for joinder of accused persons brought before it, to articulate briefly the relevant general operative principles in this area of law. A key principle in this regard is that regardless of whether the Accused were indicted together or not, where the factual allegations in the indictment support the Prosecution’s theory of the existence of a common transaction among the Accused and there is no resulting material prejudice to the Accused, joinder may be granted.15 Another key principle is that even if the Accused were charged separately, joinder may still be granted where the Prosecution’s theory of the existence of a common transaction is supported by the allegations within the factual parameters of the Indictments.16 28. Predicated upon the foregoing reasoning, the Chamber deems it quite instructive to ascertain the state of the evolving jurisprudence of ICTY and ICTR by summarising below specifĳic principles on the question of joinder. These are the main propositions deducible from case-law authorities in those two jurisdictions: (a) Under Rule 48, a joinder of Accused persons charged with the same or diffferent crimes committed in the course of the same transaction is permissible in law;17 (b) The term “transaction” in Rule 2 of the Rules implies that an Accused can be jointly tried with others if their acts fall within the scope of Rule 48;18 (c) In a joinder case, Rule 48 must be read in light of the defĳinition of “transaction” in Rule 2 and Rule 82(B);19

“From a plain reading of Article 20(3) of the Statute, it is clear, to the Special Court’s understanding, that the jurisprudence from the two ad hoc Tribunals is not binding upon the Special Court, but can be used as guidance in so far as it is adapted to the specifĳicities of the Special Court.” 14 See Decision of 23 May 2003 in Prosecutor v. Issa Hassan Sesay, SCSL-2003-05-PT, at para. 11, note 13 above. 15 See Archbold, International Criminal Courts, Practice, Procedure and Evidence, Sweet & Maxwell Ltd., London, 2003 at pages 204-207. 16 Id. 17 See Prosecutor v. Ntabakuze and Kabiligi, Case No. ICTR-97-34-I, Decision on the Defence Motion Requesting an Order for Separate Trials, 30 September 1998. 18 See Nyiramasuhuko Decision, supra note 1, para. 7. 19 See Prosecutor v. Ntabakuze and Kabiligi, supra note 17. 198 part ii

(d) The plain and ordinary meaning of “transaction” is “a number of acts or omissions whether occurring as one event, at the same time or diffferent transactions being part of a common scheme, strategy or plan”;20 (e) In determining the permissibility under Rule 48 of joinder of Accused persons who have been indicted separately, the Court must be satisfĳied that: (i) The acts of the Accused must be connected to material elements of a criminal act. For example, the acts of the Accused may be non- criminal/legal acts in furtherance of future criminal acts; (ii) The criminal acts to which the acts of the Accused are connected must be capable of specifĳic determination in time and in space; (iii) The criminal acts to which the acts of the Accused are connected must illustrate the existence of a common scheme, strategy or plan.21 (f) Factors to be taken into consideration in determining whether the interests of justice will be served by a joinder include: (i) the public interest in savings and expenses and time; (ii) the interest of transparent justice that there be consistency and fairness with respect to the verdicts of persons jointly tried pursuant to Rule 48; (iii) the public interest in avoiding discrepancies and inconsistencies inevitable from separate trials of joint offfenders;22 and (iv) whether joinder would allow for a more consistent and detailed presentation of evidence, and for better protection of the victims’ and witnesses’ physical and mental safety by eliminating the need for them to make several journeys;23 (g) The need for a consistent and detailed presentation of evidence and that of protecting victims and witnesses must be balanced, in a joinder equation, against the rights of the Accused to a trial without undue delay and any other possible resultant prejudice to the Accused;24 (h) The Chamber, in an application for joinder, must confĳine itself to the parameters of the factual allegations embodied in the Indictment;25

20 Id. 21 Id. 22 See Prosecutor v. Delalic et al., IT-96-21-T, Decision on the Motion by the Defendant Delalic Requesting Procedures for Final Determination of the Charges against Him, 1 July 1998, para. 35, cited in Archbold, supra note 15 at page 206. 23 See Prosecutor v. Kayishema, ICTR-95-1-T, Decision on the Joinder of the Accused and Setting the Date for Trial, 6 November 1996 at page 3. 24 See Prosecutor v. Bagosora et al., ICTR-96-7, Decision on the Prosecutor’s Motion for Joinder, 29 June 2000, paras. 145–156. 25 Id. paras. 119–122. interlocutory decisions – trial chamber 199

(i) An application for joinder is not to be treated as a trial;26 (j) Concurrent presentation of evidence pertaining to one Accused with that pertaining to another Accused does not per se constitute a conflict of interests, nor does calling a co-Accused to testify during the joint trial constitute a conflict of interests between them;27 (k) The fact that there is evidence which may, in law, be admissible against one Accused and not others, is not necessarily a ground for severance in an international tribunal where trial is by judges without a jury, since it is generally assumed that judges can rise above such risk of prejudice and apply their professional judicial minds to the assessment of evidence;28 (l) Rule 82 vests in an Accused in a joint trial all the rights of a single Accused on trial before a Trial Chamber; accordingly the Accused jointly tried does not lose any protection under Articles 20 and 21 of the ICTY Statute and Articles 19 and 20 of the ICTR Statute;29 (m) The interpretation of the phrase “the same transaction” in Rule 48 is a question of law;30 (n) The acts of the Accused for the purpose of joinder may form part of the same transaction notwithstanding that they were carried out in diffferent areas and over diffferent periods, provided that there is a sufffĳicient nexus between the acts committed in the two areas;31 (o) Joinder is permissible under Rule 48 where possible public interest and the concern for judicial economy would require joint offfences to be tried together;32 (p) It is impermissible in law for the purposes of joinder to join uncon- nected acts on the ground that they are part of the same plan;33 (q) In determining whether to grant joinder Rule 48 should be construed in the light of the Statute as a whole especially in the light of the entitlement of the Accused to a fair hearing;34

26 Id. 27 See Prosecutor v. Kovacevic et al., IT-97-24-AR73, Decision on the Motion for Joinder of Accused and Concurrent Presentation of Evidence, 14 May 1998. 28 Prosecutor v. Barayagwiza, ICTR-97-19-I, Decision on the Request of the Defence for Severance and Separate Trial, 26 September 2000. 29 The Prosecutor v. Delalic et al., supra note 22. 30 See Prosecutor v. Milosevic, IT-99-37-AR.73, IT-01-50-AR73, IT-01-51-AR73, Decision on Prosecutor’s Interlocutory Appeal from Refusal to Order Joinder, 1 February 2002, at para. 19. 31 See Prosecutor v. Ntakirutimana et al., ICTR-96-10-I, ICTR-96-17-I, Decision on the Prosecution’s Motion to Join the Indictments, 22 February 2001. 32 Prosecutor v. Kanyabashi, ICTR-96-15-A, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction of the Trial Chamber, 3 June 1999, para. 31. 33 Prosecutor v. Kovacevic et al., IT-97-24-AR73, Decision Stating Reasons for Appeals Chamber’s Order of 29 May 1998, 2 July 1998. 34 See Prosecutor v. Bagosora, supra note 24. 200 part ii

(r) Joinder should not be granted where the interests of justice would be prejudiced – those interests relate not only to the Accused but also to the interests of the Prosecution and the international community in the trial of any accused charged with serious violations of international humanitarian law;35 (s) To justify joinder what must be proved is that: (i) there was a common scheme or plan; and (ii) that the Accused committed crimes during the course of it. It does not matter what part the particular Accused played provided that he participated in a common plan. It is not necessary to prove a conspiracy between the Accused in the sense of direct coordination or agreement.36 29. This Chamber endorses generally the specifĳic principles and propositions developed by the ICTY and ICTR on the question of joinder as enumerated in the preceding paragraph as legally sound and logical.

D. The Three-pronged Test 30. It is evident from the foregoing that prominent among the approaches to the question of joinder in the ICTY and ICTR is the three-pronged test propounded in the case of Prosecutor v. Ntabakuze and Kabiligi.37 Cognisant of the value of this test, the Chamber, however, taking its judicial cue from Lord Morris’s speech in Director of Public Prosecutions v. Doot & Others,38 cited by the ICTR Trial Chamber in Bagosora, wishes to re-emphasize the words of the learned Law Lord that: “questions of joinder, whether of offfence or of offfenders, are considerably matters of judicial practice which this court unless restrained by statute has inherent power both to formulate its own rules and to vary them in the light of current experience and the needs of justice. Here is essentially a fĳield in which rules of fairness and convenience should be evolved and where there should be no fetter to the fashioning of such rules.”

E. The Applicable Test 31. Consistent with this approach, the Chamber’s preference is for a test based on a plain and literal interpretation of the object and purpose of Rule 48(B). Convinced that the legislative intent behind Rule 48(B) is to render joinder permissible only in cases where the acts and omissions of accused persons

35 Id. 36 Prosecutor v. Kordic and Cerkez, IT-95-14/2-PT, Decision on Accused Mario Cerkez’s Application for Separate Trial, 7 December 1998, para. 10. 37 Supra note 17. 38 (1973) A.C. 807 (House of Lords). interlocutory decisions – trial chamber 201

(who have been separately indicted) amount to the same or diffferent crimes committed in the course of the same transaction simpliciter, we are of the opinion that to succeed on a joinder motion pursuant to Rule 48(B) of the Rules of the Special Court for Sierra Leone, the Prosecution must show: (a) that the Accused persons sought to be joined and tried together were separately charged with the same or diffferent crimes committed in the course of the same “transaction” as defĳined in Rule 2; (b) that the factual allegations in the Indictments will, if proven, show a consistency between the said crimes as alleged in the Indictments and the Prosecution’s theory that they were committed in furtherance, or were the product, of a common criminal design, and (c) that it will be in the interests of justice to try the Accused jointly, due regard being given to their rights as guaranteed by Article 17(2) and 17(4)(c) of the Statute of the Court. 32. We also wish to emphasise that in applying “the consistency or product test,” there is no presumption of automaticity in favour of the Prosecution. Further, there is no obligation on the Accused to show material prejudice or its likelihood. The question of whether the factual allegations will, if proven, show a consistency between the specifĳied crimes and the Prosecution’s theory of consistency with a common criminal design is essentially a judicial exercise, involving a determination “whether, on the basis of legal and factual assessment, there exists a justifĳica- tion for holding,”39 within the limits of reasonableness, a joint trial of the Accused in question. 33. In the light of the test laid down the Chamber now proceeds to a consideration of the merits of the Prosecution’s Motions.

IV. Application of the ‘Consistency or Product Test’ to the Substantive Merits of the Motions

A. Were the Accused, Now Sought to be Joined Pursuant to Rule 48(B), Separately Charged With the Same or Diffferent Crimes Committed in the Course of the Same Transaction? 34. Based on the records before the Chamber, it is evident that all the six Accused persons sought to be joined under Rule 48(B) were separately indicted on diverse dates in the year 2003. A close comparison of Counts 1–2, 3–5, 6–8, 9–10, 11, 12, 13, 14–17 of the Indictment against Issa Hassan Sesay, alongside the charges in Counts 1–2, 3–5, 6–8, 9–10, 11, 12, 13, 14–17 of the Indictment against Alex Tamba

39 Nyiramasuhuko Decision, supra note 1, at para. 4. 202 part ii

Brima; and Counts 1–2, 3–5, 6–8, 9–10, 11, 12, 13, 14–17 of the Indictment against Morris Kallon; Counts 1–2, 3–5, 6–8, 9–10, 11, 12, 13, 14–17 of the Indictment against Augustine Gbao; Counts 1–2, 3–5, 6–8, 9–10, 11, 12, 13, 14–17 of the Indictment against Brima Bazzy Kamara; and Counts 1–2, 3–5, 6–8, 9–10, 11, 12, 13, 14–17 of the Indictment against Santigie Borbor Kanu reveals that the specifĳic crimes charged in those several counts are exactly the same, except for the allegations in respect of time and locations as regards Accused, Brima Bazzy Kamara and Santigie Borbor Kanu, again, an issue of no materiality for the instant purpose. 35. On a close textual examination of the several charges as alleged in the various Indictments, the conclusion is irresistible that the crimes, as alleged, arise from a number of acts or omissions, allegedly, occurring as one event or a number of events, at the same or diffferent locations and being part of a common scheme, strategy or plan. For example, the Indictments assert that: (a) the Accused are all alleged to have been members of the senior leadership of the RUF and/or AFRC, and of the RUF/AFRC alliance; (b) the alleged crimes took place between about 1 June 1997 and 15 September 2000 in diverse locations, including Kono, Bo, Bombali, Kailahun and Freetown; and (c) the Accused allegedly shared a common plan, purpose or design (joint criminal enterprise) with the RUF and the AFRC to gain political power and control over the territory of Sierra Leone, the said crimes being actions within the joint criminal enterprise.40

B. Will the Factual Allegations in the Indictments, if Proven, Show a Consistency between the Said Crimes as Alleged and the Prosecution’s Theory that they Were Committed in Furtherance, or Were the Product, of a Common Criminal Design? 36. In addressing this issue, the Chamber’s task is, as already noted, to determine whether, on the basis of a legal and factual evaluation, there exists a reasonable justifĳication for holding a joint trial of the Accused persons. The Chamber has meticulously examined the factual allegations in the several Indictments in the light of the test prescribed for the application of Rule 48(B), to determine whether the allegations, if proven, would establish a consistency between the crimes charged and the Prosecution’s theory that they were committed in furtherance, or were the product, of a common criminal design. 37. The Chamber fĳinds there exists both a factual and legal basis reasonably justifying a joint trial in respect of the Accused persons as exemplifĳied by the

40 See id., paragraphs 10-20, for a similar analysis. interlocutory decisions – trial chamber 203 several allegations that the Accused “acted in concert,” “shared a common plan, purpose or design (joint criminal enterprise) which was to take any actions necessary to gain and exercise political control over the territory of Sierra Leone, in particular the diamond mining areas,” and further that the alleged joint criminal enterprise “included gaining and exercising control over the population of Sierra Leone in order to prevent or minimise resistance to their geographic control, and to use members of the population to provide support to members of the joint criminal enterprise.”41 In the Chamber’s considered opinion, there is sufffĳicient showing that the factual allegations in the Indictments herein will, if proven, show a consistency between the crimes charged and the Prosecution’s theory that they were committed in furtherance, or were a product, of a common criminal design on the part of all six Accused. The formula “if proven” is legally indicative of the fact that, in the ultimate analysis, it is supremely an evidentiary matter whether the alleged crimes were actually committed in pursuance of a common criminal design.

C. Will Joinder be in the Interests of Justice? 38. Having determined that there is reasonable justifĳication for a joint trial based on the Chamber’s fĳindings that the Prosecution has met or satisfĳied the fĳirst two criteria of “the consistency or product test” under Rule 48(B) enunciated by the Chamber, it is, at this stage, necessary to determine the fĳinal question, to wit, whether it is in the interests of justice to order a joinder, a matter that is pre- eminently discretionary, due regard being paid to the rights of each Accused under Article 17(2) and 17(4)(c) of the Statute, or whether the interests of justice would be more enhanced by granting a joinder in respect of two separate joint trials as canvassed by Counsel Serry Kamal on behalf of Issa Hassan Sesay and by Counsel Steven Powles for Morris Kallon, on the grounds that the RUF and the AFRC were two separate and distinct entities despite their subsequent alliance, as alleged by the Prosecution. 39. In our view, the mere allegation that they were two distinct and separate entities ab initio, the subsequent merger of these two alleged combatant groups, a point not disputed but indeed confĳirmed by the Prosecution in their recitals in the Indictments, raises a spectre of a potential conflict in defence strategy and the possibility of mutual recrimination derogating from the rights to which each Accused is entitled in the context of separate trials. 40. In adopting this view, we are mindful of our obligation, even where we exercise our discretion to grant a joinder of offfences and offfenders, to proceed with each accused person as if he were being tried separately and thus, having regard

41 For example, see paragraphs 21-25 of the Indictment preferred against Issa Hassan Sesay. 204 part ii to the principle of individual criminal responsibility, the right of each Accused to a fair and expeditious trial, including the presumption of innocence and other rights that are guaranteed to the Accused person, respectively under Articles 6 and 17 of the Statute. 41. If in the exercise therefore of the discretion to grant an application or applications for joinder, there is any suggestion or the Chamber is satisfĳied, as we are in this case, that the rights of the accused to a fair and expeditious trial could or will be jeopardised through a potential or real possibility not only of a conflict in defence strategy but also the possibility of mutual recriminations between indictees of the RUF and those of the AFRC, this Chamber must exercise its discretion against granting the application for a joinder, in the form as applied for by the Prosecution. 42. In resolving the question of whether the joinder will be in the interests of justice, the Chamber recalls, by way of persuasive guidance, some of the key factors articulated in the jurisprudence of both the ICTY and ICTR to be taken into account when determining whether the interests of justice will be served by a joinder. These include: (a) the public interest in savings and expenses and time; (b) the interest of transparent justice that there be consistency and fairness with respect to the verdicts of persons jointly tried pursuant to Rule 48; (c) the public interest in avoiding discrepancies and inconsistencies inevitable from separate trials of joint offfenders; (d) the need for consistent and detailed presentation of evidence; (e) better protection of the victims’ and witnesses’ physical and mental safety by eliminating the need for them to make several journeys; and (f) due regard for judicial economy. 43. The evolving jurisprudence of the ICTY and ICTR also highlights these additional factors: (a) the interests of the Prosecution; (b) the interests of the international community in the trial of persons charged with serious violations of international humanitarian law; and (c) pre-eminently, whether joinder will infringe the rights of the Accused to a fair and expeditious trial. 44. In the specifĳic and peculiar context of the Special Court, this Chamber now articulates the key factors to be borne in mind in the fĳinal determination of whether a joinder of the Indictments herein will serve the interests of justice. These include: (a) the Special Court’s limited mandate as to persons who are prosecut- able, meaning all those “who bear the greatest responsibility for serious interlocutory decisions – trial chamber 205

violations of international humanitarian law and Sierra Leonean law committed in the territory of Sierra Leone since 30 November 1996”; (b) that the majority of the Accused herein were indicted on average nine (9) months ago and are still awaiting trial; (c) that the said Accused persons have been in custody ever since their Indictments, despite applications for bail by some of them; (d) that there is currently only one Trial Chamber (with a mere possibility of a second) to undertake the judicial workload of conducting nine (9) separate trials; (e) that many of the witnesses to be called by the Prosecution are common to all the Accused; (f) the practical, emotional and mental hardships likely to be experienced by Prosecution witnesses if they were to testify in six (6) separate trials; (g) the need for protection of Prosecution witnesses; (h) the possibility, if a second Trial Chamber is established, of the two Trial Chambers reaching diffferent decisions in separate trials on the same issues of law; (i) the possibility of overlapping testimonies in separate trials; (j) that separate trials of the Accused do have a high potential of being very protracted thereby prolonging the ordeal and emotional sufffering of the Accused while they await the outcome of their respective cases; (k) that a joint trial (rather than separate trials) would be more in keeping with and would efffectively protect and enforce, the pre-eminent due process right of each of the Accused to a fair and expeditious public trial; (l) the need to guarantee the Accused persons to the greatest possible extent a fair and expeditious trial free from unnecessary legal technicalities; and (m) the paramount interest of the international community in the expeditious but fair trial of persons accused of egregious offfences of international humanitarian law as a defĳinitive response to the culture of impunity.

45. Taking into account the foregoing enumerated factors, and supremely sensitive to the need for adequate judicial protection within the compass of a joint trial, of the rights to which an accused is entitled in the context of a separate trial, the Chamber acknowledges that the right of the six (6) Accused to a fair and expeditious trial could be infringed or jeopardised by joinder if it is granted in the form sought by the Prosecution. 206 part ii

46. Reiterating its commitment to guarantee such rights and weighing the overall interests of justice and the rights of the Accused herein, this Chamber holds that it would be more conducive to the interests of justice if the three (3) Accused allegedly belonging to the RUF, as charged in their separate indictments, to wit, Issa Hassan Sesay, Morris Kallon and Augustine Gbao, were tried together separately from the other three (3) Accused allegedly belonging to the AFRC as charged in their separate indictments: that of Alex Tamba Brima, Brima Bazzy Kamara and Santigie Borbor Kanu. More signifĳicantly, the Chamber is fĳirmly convinced that not only would the interests of justice be better protected by trying each group separately, but that their chances of a fair and expeditious trial would be greatly enhanced. 47. In conclusion, while the Chamber is, in the light of the foregoing considerations, of the opinion and fĳinds that there is a need, in the circumstances and for reasons advanced by the Prosecution, to order a joinder, we are equally of the opinion that in the exercise of our discretion to make an order to this efffect, the Chamber must ensure fĳirstly, that such an order would serve the interests of a fair and expeditious trial of each accused or group of accused within which, as recognised by the Prosecution, they did initially operate before they went, as it is alleged, into an RUF/AFRC coalition. 48. In addition and more importantly, the Chamber, in the exercise of this discretion, must equally be mindful and conscious of the protection and respect for the legal rights stipulated under Article 6(1) and 17 of the Statute, accorded and guaranteed to the accused persons, not only as individuals, but also, as a group so joined together for purposes of the trial. The Chamber therefore, in light of the above, rules in favour of the principle of a joinder and having regard to the preceding analysis and considerations, upholds the submission of Counsel for Issa Hassan Sesay, Mr. Serry Kamal and that of Counsel for Morris Kallon, Mr. Steven Powles, and directs that the Prosecution proceeds with the joinder and in so doing ensure a separate joint trial of the RUF group of indictees and a separate joint trial for the indictees of the AFRC group. The Chamber, accordingly, HEREBY ORDERS the joint trial of Issa Hassan Sesay, Morris Kallon, and Augustine Gbao of the RUF, and a separate joint trial of Alex Tamba Brima, Brima Bazzy Kamara and Santigie Borbor Kanu of the AFRC;

FURTHER CONSEQUENTIALLY ORDERS 1. That two consolidated indictments be prepared as the Indictments on which the separate joint trials shall proceed and that the Registry assign new case numbers to the consolidated indictments; interlocutory decisions – trial chamber 207

2. That the said consolidated indictments be fĳiled in the Registry within ten (10) days of the date of delivery of this Decision; 3. That the said indictments be served on each Accused in accordance with Rule 52 of the Rules. Judge Benjamin Mutanga Itoe appends a separate opinion on the nature of a consolidated indictment. Done in Freetown, Sierra Leone, this 27th day of January 2004.

Justice Bankole Thompson Justice Benjamin Mutanga Itoe Justice Pierre Boutet Presiding Judge 208 part ii

SEPARATE OPINION OF JUDGE BENJAMIN MUTANGA ITOE ON THE NATURE AND LEGAL CONSEQUENCES OF THE RULING IN FAVOUR OF THE FILING OF TWO CONSOLIDATED INDICTMENTS

MY LORDS, HONOURABLE AND LEARNED COLLEAGUES, DISTINGUISHED AND LEARNED MEMBERS OF THE PROSECUTION AND OF THE BAR, 1. Before I go into the core of this opinion, I would like to make it abundantly clear that I entirely agree and concur with our judgment, I mean the judgment of the Trial Chamber in the matter of the Prosecutor against Issa Hassan Sesay, Alex Tamba Brima, Morris Kallon, Augustine Gbao, Brima Bazzy Kamara and Santigie Borbor Kanu, which has just been read out as the decision of the Trial Chamber.1 2. I am therefore not dissenting from this judgment in so far as, and to the extent that it ordains a separate joint trial for Issa Hassan Sesay, Morris Kallon, and Augustine Gbao on the one hand, and a separate joint trial of Alex Tamba Brima, Brima Bazzy Kamara, and Santigie Borbor Kanu on the other, and further, as far as it orders: i. That two consolidated indictments be prepared as the Indictments on which the separate joint trials shall proceed and that the Registry assigns new case numbers to the consolidated indictments; ii. That the said consolidated indictments be fĳiled in the Registry within ten (10) days of the date of delivery of this Decision; iii. That the said indictments be served on each Accused in accordance with Rule 52 of the Rules. 3. It should be recalled that all the six Accused stand indicted, already arraigned after they made their initial appearances, and pleaded ‘Not Guilty’ on the individual indictments which charge them with crimes that touch on serious violations of international humanitarian law and Sierra Leonean law, committed within the territory of Sierra Leone since the 30th of November, 1996. 4. The above-mentioned components of our decision reflect the unanimity that accompanied it after a number of elaborate deliberations that gave rise to several drafts which preceded the fĳinal one that has just been read out on our behalf. 5. During our examination of and deliberation on the fĳinal draft on the 23rd January, 2004, I raised certain issues with my Learned and Honourable Brothers and Colleagues, which I thought should be set out as the fourth, in

1 SCSL-2003-05-PT; SCSL-2003-06-PT; SCSL-2003-07-PT; SCSL-2003-09-PT; SCSL-2003-10-PT; SCSL-2003-13-PT, Decision and Order on the Prosecution Motions for Joinder, 27 January 2004. interlocutory decisions – trial chamber 209 addition to the three Orders we made at the tail end of our unanimous judgment, just after the mention of ‘FURTHER CONSEQUENTIALLY ORDERS.’ 6. This fourth Order which I proposed to my Distinguished Colleagues for their consideration was to read as follows: “That the said indictments be submitted to a Designated Judge for verifĳication and approval in accordance with the provisions of Rule 47 of the Rules within ten days of the delivery of this decision.” I further added that the Accused persons had to be called upon to plead afresh to the consolidated indictments. 7. What ran through my reasoning in making this proposal was that the two consolidated indictments we are ordering the Prosecution to prepare are in fact, to all intents and purposes, new indictments which need to be subjected to the procedures outlined in Rule 47 and Rule 61 of the Rules of the Special Court and this, notwithstanding the fact that all of the Accused persons had already earlier made their initial appearances and had already been arraigned individually on individual indictments, which might not necessarily contain the same particulars as those in the consolidated indictments that are yet to be served on the Accused persons for subsequent procedures and proceedings before the Trial Chamber. 8. The Honourable Presiding Judge in his argument during the deliberations, did indicate that the indictments are not new and that even if the said indictments were new ‘in form’ they remain the same ‘in substance’ and this, following assurances to this efffect by the Prosecution. He added that there was no need for a ‘paragraph four’ to be integrated into the Decision as there was neither any further necessity to subject the consolidated indictments to the approval procedures defĳined in Article 47 of the Rules, nor was there any justifĳication for fresh pleas to be taken on the consolidated indictments. 9. My Colleague and Brother, Hon. Judge Pierre Boutet, shared the same opinion with our Learned Colleague, The Hon. Presiding Judge. 10. I also urged them to agree with me that even though the Rules were not expressly clear on the proposals I was making on the joinder application before us, the provisions of Rule 47 and the fact that the consolidated indictments are, in my considered opinion, and to all intents and purposes, new, lends support to the proposition that those indictments have to be subjected to the procedures of Rules 47 and 61 in the form which they will take and will be presented, following our decision on these joinder motions. 11. The main argument that has motivated my stand on this matter is that the consolidated indictments are new, if only because their ‘form’ is no longer what it was when the Accused were indicted and initially appeared individually before 210 part ii the Pre-Trial Judges by virtue of the individual indictments initially preferred against them. As far as the substance of the consolidated indictments are concerned, the decision we have just rendered quotes Counsel for the Prosecution/ applicant in this motion, Ms. Boi-Tia Stevens, as saying that the consolidated indictments will not result in added allegation of charges “except for locations.” It means that there will be some changes in locations where these crimes were committed but that this would not, according to Counsel, afffect the existing allegations. 12. It is my considered opinion that an indictment becomes altered and new when the particulars of the location change and this, even if as Ms Boi-Tia Stevens contended, it would not afffect existing allegations. If Counsel concedes, as she indeed did, that some particulars on locations where the offfences were committed might change, and it is equally conceded that the form of the consolidated indictment is new, as it is indeed when compared to the single individual indictments on which the Accused persons, now grouped in two diffferent individual groups and poised for two separate trials were originally indicted, it must logically be conceded that submitting these new indictments to the provisions of Rule 47 for scrutiny is the logical conclusion to the situation that has been so created. 13. The other issue which I consider important in the present context is the submission by the Defence Counsel that the original and the anticipated consolidated indictments should have been exhibited as part of the Motions and that a failure by the Prosecution to do this in order to ensure judicial scrutiny amounted to non- compliance with a condition precedent for the granting or even examining the application for joinder. 14. On this submission, the Prosecution replied that the Rules do not provide for this procedure and that the Defence contention must not be considered as a condition precedent for the fĳiling or granting of the application for joinder. Our fĳind- ing on this argument in the circumstances, is, and I quote: “Even though this practice may be regarded as an advocacy for procedural tidiness in the preparation of motions and may have some merit in the sphere of procedural law in national legal systems, it is difffĳicult to require it as a mandatory rule in context of international criminal tribunals,”2 and further, to conclude and I quote: “... the Chamber is of the opinion that, due to the need for expeditiousness and flexibility in its processes and proceedings…recourse to procedural technicalities of this nature will unquestionably impede the Special Court in the expeditious dispatch of its judicial business…The Chamber, therefore, does not think that it is necessary

2 Paragraph 21 of the Decision of 27 January 2004, above note 1. interlocutory decisions – trial chamber 211

for the Prosecution to exhibit an anticipated consolidated indictment…to establish a basis for joinder.”3” 15. I share these views expressed in our judgment but even though we have unanimously upheld the argument of the Prosecution in this regard and although we know that the consolidated indictments are still undisclosed, I think that we should remain resolved in our determination and quest to steadily build up some jurisprudence from certain shortcomings or lacunae in our Rules, which case law will enhance, advance, and not necessarily prejudice a proper and equitable application of, or interpretation of our Rules. This will in fact encourage the application of the ‘Best Practices Rule’ which is neither contrary to nor inconsistent with the general principles of international criminal law and procedure. 16. It is my hope that the submission put across by the Defence in this regard would, in future, be given due consideration particularly in the light and the spirit of the provisions of Rule 47 of the Rules, and particularly so because the newly drawn up and yet-to-be-disclosed consolidated indictments will, following our judgment, be fĳiled without having satisfĳied the guarantees and standards stipulated in Rule 47(E) of the Rules which provides as follows: The Designated Judge shall review the indictments and the accompanying material to determine whether the indictment should be approved. The Judge shall approve the indictment if he is satisfĳied that: (i) the indictment charges the suspect with a crime or crimes within the jurisdiction of the Special Court; and (ii) that the allegations in the prosecution’s case summary would, if proven, amount to the crime or crimes as particularised in the indictment. [emphasis added] 17. In the course of this exercise and pursuant to the provisions of Rule 47(F), the Designated Judge, it should be noted, is vested with powers to approve or to dismiss each count. It is my considered opinion that the provisions of Rule 47 are intended to empower the Judge to control the validity of the charges in the indictment before the accused is called upon to plead to them. It stands to reason, therefore, and it is, in my opinion so implied, that any trial based on a new indictment which has not been subjected to and passed through the test provided for in the provisions of Rule 47, is null and void ab initio for non-compliance with a mandatory statutory requirement for the institution of proceedings before the Trial Chamber of the Special Court and of conferring on it, the jurisdiction to proceed with the trial. 18. The only question to be asked and to be answered at this stage is whether the consolidated indictments are new indictments which ordinarily ought to

3 Decision of 27 January 2004, above note 1 at paragraph 11. 212 part ii and should in fact go through the grilling Rule 47 processes. The answer to this question, from the analysis which has preceded this question, is yes. Firstly, in our judgment which has just been rendered, we rightfully have ordered: (i) That the consolidated indictment be prepared as the indictment on which separate joint trials shall proceed and that the Registry assigns new case numbers to the consolidated indictments. (ii) That the second consolidated indictments be fĳiled in the Registry within ten days of the date of the delivery of this decision; and (iii) That the said indictments be served on each accused person in accordance with the provisions of Rule 52 of the Rules. 19. A careful examination of these Orders will readily and unambiguously reveal that they were made because it is recognised and conceded that the said indictments which were consolidated, reformed, and new, not only had to have new numbers from the Registry, but also had to be fĳiled in the Registry as is indeed required by Rule 47(i) where the Registrar is required to submit same to a Designated Judge for review after assigning new numbers to them. 20. In addition, a reference to some Dictionaries for the meaning of “New,” this time within the context and scope of this opinion, can contribute to determining whether it is appropriate to refer to these proposed undisclosed consolidated indictments as new for them to be subjected to the mandatory scrutiny and the due process stipulated in Rule 47. 21. In the Macquarie Dictionary the word “New” is given the following meanings, – “Having only lately or only now come into knowledge.” – “Coming or occurring afresh; further; additional.” – “Other than to the former or the old.” – “Being the later or latest of two or more things of the same kind.” – “Recently or lately.” – “Freshly; anew or afresh.”4 In the French Dictionary Le Dictionaire Des Expressions et Locutions, “A nouveau” (meaning new) is defĳined as “de facon, entierement diffferente,” meaning, ‘in an entirely diffferent manner’; and “pour le seconde fois encore,” meaning for the second time again.5

4 See A. Delbridge et al (eds), The Macquarie Dictionary, 2nd Edition, The Macquarie Library Pty Ltd, (1991) at page 1197. 5 See Alain Rey and Sophie Chantreau (eds), Dictionnaire Des Expressions et Locutions, 12th Edition, Discorobert Inc., (1993) at page 550. interlocutory decisions – trial chamber 213

22. Coming closer home in our Concise Oxford English Dictionary “New” is defĳined as: – “not existing before, made, introduced or discovered recently.” – “reinvigorated restored or reformed.” – “Superseding and more advanced than others of the same kind.”6 23. In examining these defĳinitions, and in the light of the foregoing considerations, the consolidated indictments as they are now, would incontestably fall within one or more of these defĳinitions either as something having only lately or only new come into knowledge, coming or occurring afresh, further and additional or other than the former or the old, being the later or the latest of two or more things of the same kind, or something introduced in an entirely diffferent manner and for the second time, reinvigorated, restored or reformed, or even superseding and more advanced than others of the same kind. 24. Viewed in another perspective and given that the Prosecution already concedes that the consolidation of these indictments would include changes in locations, presumably where the crimes were committed, in addition to the trimming down of the indictments from six to two only, with the attendant possibilities of pleading an alibi where locations change in the new consolidated indictments, I am of the opinion that this exercise is not only aimed at a consolidation of the indictments, but also and furthermore, constitutes a fundamental amendment of the original indictments which would, to my mind, require compliance with the provisions of Rules 50 and 52 as we indeed have already ordered in the judgment we have just delivered. 25. This said, I am of course, because of our resolve and determination to ensure expeditiousness in the proceedings before us, not of the opinion that adopting the view I have taken necessarily implies throwing open once more, the floodgate for motions on issues which have already been adjudicated upon, to be entertained by the Trial Chamber, unless of course, just cause is shown by the Party so seeking to move the Court. 26. In the light of the foregoing, it is my opinion that it is in conformity with logic to hold and to conclude that the yet-to-be-disclosed consolidated indictments are new and that they should not only be subjected to the provisions of Rule 47 but also, that the indictees be subjected once more to the procedures stipulated in Rule 61 of the Rules of Procedure and Evidence of the Special Court of Sierra Leone.

6 See Judy Pearsall (ed), Concise Oxford English Dictionary, 10th Edition, Oxford University Press, New York, (2002) at page 959. 214 part ii

These Comments, My Lords and Learned Colleagues, Conclude My Humble Opinion.

Done at Freetown this 27th day of January 2004

Judge Benjamin Mutanga Itoe THE TRIAL CHAMBER

Before: Justice Bankole Thompson, Presiding Judge Justice Benjamin Mutanga Itoe Justice Pierre Boutet Registrar: Robin Vincent Date: 28 January 2004 PROSECUTOR Against ISSA HASSAN SESAY (Case No.SCSL-2003-05-PT) ALEX TAMBA BRIMA (Case No.SCSL-2003-06-PT) MORRIS KALLON (Case No.SCSL-2003-07-PT) AUGUSTINE GBAO (Case No.SCSL-2003-09-PT) BRIMA BAZZY KAMARA (Case No.SCSL-2003-10-PT) SANTIGIE BORBOR KANU (Case No.SCSL-2003-13-PT)

CORRIGENDUM DECISION AND ORDER ON PROSECUTION MOTIONS FOR JOINDER

Office of the Prosecutor: Defence Counsel for Issa Hassan Sesay: Luc Côté Timothy Clayson Robert Petit Wayne Jordash Boi-Tia Stevens Abdul Serry Kamal Defence Counsel for Alex Tamba Defence Counsel for Morris Kallon: Brima: James Oury Terence Terry Steven Powles Karim Khan Melron Nicol-Wilson Defence Counsel for Augustine Defence Counsel for Brima Bazzy Kamara: Gbao: Ken Fleming Girish Thanki C.A. Osho Williams Andreas O’Shea Ken Carr Defence Counsel for Santigie Borbor Kanu: Geert-Jan Alexander Knoops 216 part ii

THE SPECIAL COURT FOR SIERRA LEONE, SITTING as the Trial Chamber composed of Judge Bankole Thompson, Presiding Judge, Judge Benjamin Mutanga Itoe and Judge Pierre Boutet; BEING SEIZED of six (6) motions fĳiled by the Offfĳice of the Prosecutor on 9 October 2003 for joinder of the trials of the Accused in Prosecutor v. Issa Hassan Sesay (Case No.SCSL-2003-05-PT), Prosecutor v. Alex Tamba Brima (Case No.SCSL-2003- 06-PT), Prosecutor v. Morris Kallon (Case No.SCSL-2003-07-PT), Prosecutor v. Augustine Gbao (Case No.SCSL-2003-09-PT) Prosecutor v. Brima Bazzy Kamara (Case No.SCSL-2003-10-PT), and Prosecutor v. Santigie Borbor Kanu (Case No. SCSL-2003-13-PT); CONSIDERING its Decision and Order on the Prosecutor Motion for Joinder (“Decision”), rendered orally on 27 January 2004; NOTING the delay in publishing the said Decision; DECIDES AND ORDERS that the second consequential order of the Decision shall be changed in the following manner: 2. That the said consolidated indictments be fĳiled in the Registry within ten (10) days of the date of delivery of this Decision; Shall read: 2. That the said consolidated indictments be fĳiled in the Registry within ten (10) days of the date of service of this Decision; Done at Freetown this 28th day of January 2004

Judge Bankole Thompson Presiding Judge THE TRIAL CHAMBER

Before: Judge Bankole Thompson, Presiding Judge Judge Benjamin Mutanga Itoe Judge Pierre Boutet Registrar: Robin Vincent Date: 1 April 2004 PROSECUTOR Against Alex Tamba Brima Brima Bazzy Kamara Santigie Borbor Kanu (Case No. SCSL-04-16-PT)

DECISION AND ORDER ON DEFENCE PRELIMINARY MOTION ON DEFECTS IN THE FORM OF THE INDICTMENT

Office of the Prosecutor: Defence Counsel for Alex Tamba Brima: Luc Côté Terence Terry Robert Petit Defence Counsel for Brima Buzzy Kamara: Ken Fleming Defence Counsel for Santigie Borbor Kanu: Geert-Jan Alexander Knoops 218 part ii

THE TRIAL CHAMBER (“Trial Chamber”) of the Special Court for Sierra Leone (“Special Court”); SEIZED of the “Brief in Support of Preliminary Motion on Defects in the Form of the Indictment,” dated 23 December 2003 and fĳiled on 7 January 2004 (“Motion”)1 as well as the “Relief for the Motion on Defects in the Form of the Indictment” fĳiled on the same day (“Relief Request”) on behalf of Brima Bazzy Kamara (“Accused”) pursuant to Rule 72(B)(ii) of the Rules of Procedure and Evidence of the Special Court (“Rules”);2 NOTING that the several challenges raised by the Motion are as to alleged formal defects in the Indictment against Brima Bazzy Kamara approved by Judge Pierre Boutet on the 28 May 2003 sitting as Designated Judge of the Trial Chamber pursuant to Rules 28 and 47 of the Rules; CONSIDERING Article 17(4)(a) and (b) of the Statute of the Special Court (“Statute”); CONSIDERING the paramount importance of the right of the Accused to object preliminarily to the form of the Indictment, as distinct from the substantive issue as to whether the criteria for approving the Indictment were satisfĳied, and the need to keep the two issues separate and distinct; CONSIDERING the Response fĳiled by the Offfĳice of the Prosecutor (“Prosecution”) on 19 January 2004 to the Motion (“Response”); CONSIDERING ALSO the Reply fĳiled by the Defence on 22 January 2004 to the Prosecution’s Response (“Reply”); WHEREAS acting on the Trial Chamber’s Instructions, the Court Management Section advised the parties on 6 February 2004 that the Motion, the Response and the Reply would be considered and determined on the basis of the written submissions of the Parties only, pursuant to Rule 73(A) of the Rules;

1 The Trial Chamber notes that the Motion was not fĳiled in conformity with the “Practice Direction on Filing Documents before the Special Court for Sierra Leone” of 27 February 2003. Article 9(3)(c) of the Practice Direction specifĳies that motions shall not exceed 10 pages or 3,000 words, whichever is greater. The Motion is 16 pages. Furthermore, the font and spacing used in the Motion are not in compliance with the Practice Direction. Despite this defĳiciency, the Trial Chamber will consider the Motion and takes this opportunity to remind counsel to comply with the Practice Direction for all future fĳilings. 2 The Trial Chamber notes that the Defence submits that the Motion is fĳiled pursuant to Rule 72(C) of the Rules; the Trial Chamber considers Rule 72(B)(ii) to be the appropriate provision and considers the Motion pursuant to Rule 72(D) of the Rules. The Trial Chamber notes that the Rules of Procedure and Evidence were amended at the 5th Plenary Session held 11-14 March 2004. The Rules in place at the time of the fĳiling of the Motion shall be applicable to the Motion in order to ensure that the rights of the accused are not adversely afffected by any amendments to the Rules. interlocutory decisions – trial chamber 219

WHEREAS pursuant to an Order by this Trial Chamber,3 the Prosecution fĳiled a consolidated Indictment on 5 February 2004 (“Consolidated Indictment”) against the Accused, Alex Tamba Brima and Santigie Borbor Kanu under the case number SCSL-04-16-PT; CONSIDERING that due to the fĳiling of the Consolidated Indictment, certain of the submissions of the Parties are now rendered moot and will be identifĳied as such in this Decision, as is necessary or appropriate; NOTING that the Prosecution has fĳiled a motion for leave to amend the Consolidated Indictment, the merits and implications of which do not impact the Trial Chamber’s fĳindings on the present Motion; HEREBY RENDERS ITS DECISION.

I. Submissions of the Parties

A. The Defence Motion 1. By the instant Motion and Relief Request, the Defence seeks an Order: (i) that the Indictment, herein be set aside on the basis of the submissions thus set forth, such relief not being precluded by virtue of the fact that the Indictment was reviewed and approved by the Designated judge under Rule 47. The role of the Designated Judge is to approve the Indictment on the basis that the crimes charged are within the jurisdiction of the Court and that the allegations, if proven, would amount to the crimes as particularised in the Indictment; (b) that this function therefore involves the examination of the sufffĳiciency of the evidence rather than a concern with the form of the Indictment; and (c) that this Trial Chamber’s review of the form of the Indictment is a distinct and separate function from that of the Designated judge approving the Indictment; or in the alternative (ii) that the Trial Chamber to order the Prosecution to fĳile an Amended Indictment and accompanying case summary, which provides the material facts necessary to establish the substantive elements charged and to indicate precisely the nature of the responsibility alleged in relation to each individual count and to strike out from the Indictment such vague terms as “between about” and “included but not limited to”; or in the alternative (iii) that the Trial Chamber order the Prosecution to provide additional facts to resolve the ambiguities referred to above.

3 Prosecutor v. Bazzy Kamara, Case No. SCSL-03-10-PT, Decision and Order on Prosecution Motions for Joinder, dated 27 January 2004 and fĳiled on 28 January 2004 (“Joinder Decision”). 220 part ii

2. The Defence, likewise, seeks an order from the Trial Chamber authorising the Prosecution to make a complete disclosure as required by the Rules, upon the provision of the relief set out in paragraph 1(i), (ii) and (iii) above. 3. In support of the Motion, the Defence submitted a list of thirty case-law authorities from the jurisprudence of International Criminal Tribunal for Yugoslavia (“ICTY”) and International Criminal Tribunal for Rwanda (“ICTR”) on the issue of defects in the form of the indictment. Based on the jurisprudence of the ICTY and ICTR, the Defence outlines what it submits are the general principles which must be followed in drafting an indictment,4 which will be addressed below in more detail under the specifĳic alleged defect: in the form of the indictment. 4. The Defence submits inter alia that the Indictment is not sufffĳiciently clear or precise with respect to the factual and legal constituent elements so as to enable the Accused to understand the nature and cause of the charges brought against him. Specifĳically, the Defence asserts that the indictment must contain the material facts upon which the Prosecution relies, and not the evidence by which those material facts will be proved; the Indictment in this case is defective in various instances as it does not satisfy that requirement. 5. The Motion sets out fĳive categories of challenges and submissions: (i) Failure to comply with Rule 47(C) and Article 17(4)(a) of the Statute; (ii) lack of precision in the form of the indictment including inter alia failure to provide any or sufffĳi- cient particulars and vagueness of the indictment; (iii) failure to particularise mode of participation under Article 6(1) – individual responsibility; (iv) lack of specifĳicity for joint criminal enterprise; and (v) failure to particularise responsibility as a superior.

B. The Prosecution Response 6. In response, the Prosecution fĳirst submits that the Defence Motion must be rejected as it is time barred on the grounds that pursuant to Rule 72, the time for fĳiling such a motion in this case expired on 27 November 2003, 21 days after the Prosecution disclosure to the Defence on 6 November 2003, and that subsequent disclosure made by the Prosecution pursuant to its continuing disclosure obligations does not extend the time for fĳiling preliminary motions under Rule 72(A). 7. In further response, the Prosecution submits that the Defence argument as to the non-compliance with Rule 47(C) must be rejected on the grounds that the Prosecution did submit a Case Summary along with the Indictment for approval;

4 Motion, paras. 3–11. interlocutory decisions – trial chamber 221 and also that (without prejudice to its position) lack of a Case Summary does not vitiate the Indictment. 8. On the issue of dates, locations, names and numbers of victims, the Prosecution submits that this Trial Chamber in Decisions in the cases of both Sesay5 and Kanu6 has held that the degree of specifĳicity required in an indictment depends upon these variables, to wit, “the nature of the allegations,” “the nature of specifĳic crimes accused,” and “the scale or magnitude on which the acts or events allegedly took place,” and that in the instant case the crimes charged are war crimes.7 9. The Prosecution also submits that more specifĳically, and contrary to the assertion of the Defence, the phrase “between about” to denote a time period of the commission of an offfence is permissible in the context of such widespread alleged attacks and that Kondewa is authority for that proposition.8 10. Another Prosecution submission is that the phrase “at all times relevant in this indictment” as used in paragraphs 44, 50, 51 and 56 of the Indictment is not vague or unreasonable and that the Sesay Decision supports this submission.9 A further submission put forward, in response by the Prosecution, is that the Defence’s complaint about paragraph 57 of the Indictment is untenable, and that what is important is that the Indictment specifĳically sets out the relevant dates as “between 6 January 1999 and 31 January 1999” and thus puts the Accused on sufffĳi- cient notice as to the time period that the offfences were committed. 11. It is also submitted by the Prosecution that the locations referred to in the Indictment are sufffĳiciently precise, given the nature of the case against the Accused, and that specifĳically it is sufffĳiciently precise as to the geographic quad- rants, districts, and villages alleged therein. 12. It is further submitted by the Prosecution that under the circumstance, it has no obligation to identify the names and numbers of victims as requested by the Defence on the grounds that this Trial Chamber and ICTY and ICTR have held that it is permissible to identify victims by reference to their group or category.

5 Prosecutor v. Issa Hassan Sesay, Case No. SCSL-03-05-PT, Decision and Order on Defence Preliminary Motion for Defects in the Form of the Indictment, 13 October 2003 (“Sesay Decision”). 6 Prosecutor v. Santigie Borbor Kanu, Case No. SCSL-03-13-PT, Decision and Order on Defence Preliminary Motion for Defects in the Form of the Indictment, 19 November 2003 (“Kanu Decision”). 7 Response, paras. 8–16. 8 Response, para. 9, citing Prosecutor v. Allieu Kondewa, Case No. SCSL-03-12-PT, Decision and Order on Defence Preliminary Motion for Defects in the Form of the Indictment, 27 November 2003 (“Kondewa Decision”). 9 Response, para. 8, citing Sesay Decision, paras. 21–22. 222 part ii

13. On the issue of the mode of participation under Article 6(1) of the Statute, the Prosecution submits that the Indictment is indeed specifĳic as to the modes of responsibility with which the Accused is charged under Article 6(1). 14. On the issue of specifĳicity for joint criminal enterprise, the Prosecution’s Reply is that the allegation that the Accused participated in a joint criminal enterprise is specifĳic to each of the counts in the Indictment, and that paragraph 24 expressly states that the crimes alleged in the Indictment were a result: of the joint criminal enterprise, thereby linking each of the crimes charged to the joint criminal enterprise. It is also contended that there is sufffĳicient particularity as to the nature of the alleged joint criminal enterprise and the nature of the Accused’s participation in it, and that a ruling on this point in the Sesay Decision supports this position. 15. On the related issue of state of mind of the Accused when pleading joint criminal enterprise, the Prosecution submits that it is under no obligation to plead such state of mind, though in the context of the instant Indictment, the said state of mind is sufffĳiciently pleaded. It is also argued in response, that the Prosecution is not required to plead the voluntariness of the Accused’s conduct. 16. The answer of the Prosecution to the issue of defect in the Indictment in respect of responsibility as required under Article 6(3) of the Statute is that it has set out with sufffĳicient particularity the Accused’s criminal responsibility under Article 6(3) as illustrated by paragraphs 18–20; 8, 9, 18, 20, 21 and 28, 21 and 26, 28–64. The Prosecution also argues that in a similar attack on the sufffĳiciency of the particulars of the subordinates of the Accused in the Sesay case, the Trial Chamber stated that “it is clear from the Indictment that the AFRC/RUF were alleged perpetrators” and that “it is sufffĳicient and permissible in law to identify the subordinates of the Accused by reference to their group or category” namely the AFRC/RUF.”10

C. The Defence Reply 17. In its Reply, the Defence seeks to rebut the Prosecution’s assertion that the Motion is time-barred under Rule 72(A) of the Rules. The Defence asserts that it received 112 documents “purportedly pursuant to Rule 66(A)(i)” on 6 November 2003,11 which was two days before the time period for fĳiling preliminary motions based on the fĳirst disclosure delivery on 6 November 2003.12 The Defence submits

10 Response, para. 29, citing Sesay Decision, paras. 16–17. 11 Reply, para. 1. Defence Counsel asserts that he was served with the documents at 4:00 p.m. on 25 November 2003, “which the prosecutor said was ‘pursuant to the Prosecution’s disclosure obligations.’” Reply, para. 2. 12 Reply, paras. 1–3. interlocutory decisions – trial chamber 223 that the documents, which included statements, were fĳiled pursuant to Rule 66(A) (ii), and thereby triggered Rule 72.13 Citing the Prosecution’s continuing disclosure, the Defence asserts that it is entitled to fĳile the Motion based not only on “about 50% of the material upon which [the Prosecution] intend[s] to rely” but: rather after all materials have been disclosed.14 18. In reply to the Prosecution’s Response on the merits, the Defence reinforces the submissions and contentions put forward in the Motion and submits that in the interest of fairness and expedition, if particularity cannot be provided, the Indictment must be discharged. The Defence highlights the particular difffĳiculty of providing details of alibi or preparing a Defence Case Statement, pursuant to Rule 67(C), without further particulars.15

II. Preliminary Issues

A. Applicable Jurisprudence 19. In the fĳirst of its major decisions so far on the subject of defects in the form of the indictment,16 the Trial Chamber articulated, fĳirstly, the specifĳic principles on the framing of indictments deducible from the evolving jurisprudence of ICTY and ICTR,17 as will be briefly repeated below, and secondly, spelled out, for the purposes of the administration of justice in the Special Court for Sierra Leone, the variables upon which, in framing an indictment, the required degree of specifĳicity must necessarily depend.18 For the purpose of the instant Motion, and in the light of the several challenges to the indictment raised by the Defence, this Trial Chamber deems it necessary to recall, with emphasis, its major judicial focus as

13 Reply, para. 8, citing Rule 72(A). 14 Reply, para 9. 15 Reply, para. 14: “Unless there is that particularity the Rules provide a meaningless and fruitless exercise. The purpose of the Rules is to expedite the hearing of matters and to ensure fairness. Fairness cannot be achieved, not can expedition, if the accused does not know with specifĳicity where he was supposed to have been on a particular day, what he was supposed to have done on a particular day, and to whom he was supposed to have done it.” 16 Sesay Decision. 17 Id., para. 7. 18 Id., para. 8, where it was stated per Judge Thompson that: “… the degree of specifĳicity required must necessarily depend upon such variables as (i) the nature of the allegations, (ii) the nature of the specifĳic crimes charged, (iii) the scale or magnitude on which the acts or events allegedly took place, (iv) the circumstances under which the crimes were allegedly committed, (v) the duration of time over which the said acts or events constituting the crimes occurred, (vi) the time span between the occurrence of the events and the fĳiling of the indictment, (vii) the totality of the circumstances surrounding the commission of the alleged crimes.” 224 part ii regards defects in the form of indictments in the context of international criminality. The Trial Chamber’s focus is that: where the allegations relate to ordinary or conventional crimes within the setting of domestic or national criminality, the degree of specifĳicity required for pleading the indictment may be much greater than it would be where the allegations relate to unconventional or extraordinary crimes for example, mass killings, mass rapes and wanton and widespread destruction of property (in the context of crimes against humanity and grave violations of international humanitarian law) within the setting of international criminality.19 20. The Trial Chamber wishes to observe that the same general judicial focus is shared by our sister tribunals ICTY and ICTR. Admittedly, how each tribunal applies this judicial approach to individual cases of alleged defects in the form of the indictment must, and will, necessarily vary with the particular context, spe- cifĳic parameters of the criminal activities forming the substrata of the allegations charged in the indictment, and the totality of the circumstances as alleged. 21. Given the frequent citation before the Trial Chamber of ICTY and ICTR case- law authorities for the Chamber’s guidance as the interpretation of general principles of law in the context of international criminal adjudication, largely due to the nascent character of the Special Court’s evolving jurisprudence, this Trial Chamber deems it necessary to comment on this forensic trend. 22. In this connection, the Trial Chamber emphasises that its application of the ICTY and ICTR jurisprudence is not due to a statutory imperative predicated upon a binding relationship of these UN Security Council-established Interna- tional Criminal Tribunals on the Special Court; indeed, the Statute of the Special Court specifĳies that the Appeals Chamber of the Special Court shall be “guided” by, and not bound by, decisions of the Appeals Chamber of the two International Tribunals.20 There is, however, a special relationship envisioned between the Special Court and the International Tribunals, as each institution is established to permit prosecutions for inter alia “serious violations of international humanitarian law.” As such, the International Tribunals, the Special Court

19 Sesay Decision, para. 9. 20 Article 20(3) of the Statute of the Special Court. See also, Report of the Secretary-general on the establishment of a Special Court for Sierra Leone, S/2000/915, 4 October 2000 (“Report of the Secretary-General on Special Court”), paras. 40–46 (on the proposal of sharing one Appeals Chamber between the International Tribunals and the Special Court). Paragraph 41 is particularly instructive: “While in theory the establishment of an overarching Appeals Chamber as the ultimate judicial authority in matters of interpretation and application of international humanitarian law offfers a guarantee of developing a coherent body of law, in practice, the same result may be achieved by linking the jurisprudence of the Special Court to that of the International Tribunals, without imposing on the shared Appeals Chamber the fĳinancial and administrative constraints of formal institutional link.” interlocutory decisions – trial chamber 225 and the International Criminal Court belong to a unique, and still emerging, system of international criminal justice. 23. This special relationship is reflected not only in Article 20 of the Statute but also through the fact that, under the Statute of the Special Court, the Rules of Procedure and Evidence of the ICTR applied mutatis mutandis to the conduct of legal proceedings before this Court.21 It can therefore be concluded that the drafters of the Statute of the Special Court not only envisioned that this Court would follow the procedures established by the ICTR – with necessary modifĳications – but furthermore, that the Rules of Procedure and Evidence of the ICTR can be construed as reflective of the general principles of law applicable to criminal proceedings in which the principles of international criminal law and international humanitarian law are applied. 24. Like the Special Court,22 the ICTY and the ICTR are bound to apply customary international law,23 and their decisions do, as a matter of principle, apply customary international law. It is for this reason that this Court applies persuasively decisions taken at the ICTY and ICTR. While noting that the obligations upon the ICTY and ICTR, as well as the Special Court, in relation to the application of customary international law and respect for the principle of nullum crimen sine lege are specifĳically related to the subject-matter of these institutions, the Trial Chamber fĳinds that the two Tribunals also apply general principles of law on matters related to evidence and procedure.24 The Trial Chamber observes that

21 See Article 14 of the Statute of the Special Court. 22 See Report of the Secretary-General on Special Court, para. 12: “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.” 23 See Report of the Secretary-General pursuant to paragraph 2 of the Security Council Resolution 808 (1993). S/25704, 3 May 1993 (on the Statute of the ICTY, para. 34 (on subject-matter jurisdiction): In the view of the Secretary-General, the application of the principle nullum crimen sine lege requires that the international tribunal should apply rules of international humanitarian law which are beyond any doubt part of customary law so that the problem of adherence of some but not all States to specifĳic conventions does not arise. This would appear to be particularly important in the context of an international tribunal prosecuting persons responsible for serious violations of international humanitarian law; and Report of the Secretary-General pursuant to paragraph 5 of Security Council Resolution 955 (1994), S/1995/134, 13 February 1995 (on the Statute of the ICTR), para. 12 (on subject- matter jurisdiction): “… the Security Council has elected to take a more expansive approach to the choice of the applicable law than the one underlying the statute of the Yugoslav Tribunal, and included within the subject-matter jurisdiction of the Rwanda Tribunal international instruments regardless of whether they are considered part of customary international law or whether they have customarily entailed the individual criminal responsibility of the perpetrator of the crime. […]” 24 The Trial Chamber notes that Rule 89 of the Rules of Procedure and Evidence of both the ICTR and the ICTY provides, in relevant part: “(A) A Chamber shall apply the rules of evidence set forth in this Section, and shall not be bound by national rules of evidence. (B) In cases not otherwise provided for in this Section, a Chamber shall apply rules of evidence which will best favour a fair determination of the matter before it and are consonant with the spirit of the Statute and the general principles of law.” 226 part ii decisions of both Tribunals are based on recognised sources of law consistent with Article 38 of the Statute of the International Court of Justice.25 25. Accordingly, as stated in some of its major decisions so far,26 the Special Court will apply the decisions of the ICTY and ICTR for their persuasive value, with necessary modifĳications and adaptations, taking into account the particular circumstances of the Special Court.27 The Trial Chamber will, however, where it fĳinds it necessary or particularly instructive, conduct its own independent analysis of the state of customary international law or a general principle of law on matters related to inter alia evidence or procedure. Additionally, in cases where the Trial Chamber fĳinds that its analysis of a certain point or principles of law may difffer from that of either the ICTY or ICTR, it shall base its decisions on its own reasoned analysis. 26. It is against the background of this preliminary analysis as to the applicable jurisprudence that the several challenges advanced by the Defence would be examined on their merits. Before embarking on that exercise, however, it is necessary to dispose at this stage of the preliminary issue raised by the Prosecution, which is that the Motion, in accordance with Rule 72(A), is time-barred.

B. On the Time Limits for Filing the Motion 27. The records show that the Prosecution made disclosures of witness statements or summaries to the Defence in November 2003 and February 2004, on various dates. Based on the facts and circumstances, the Trial Chamber fĳinds that disclosure was done pursuant to Rule 66(A)(i). 28. Interestingly the Prosecution seeks to make a distinction here between “Preliminary Disclosure” and “Subsequent Disclosure,”28 a distinction which in the Trial Chamber’s view is not supported by Rule 66(A)(i) which stated at the time applicable to this Motion that:

25 Article 38(1) of the Statute of the International Court of Justice states: “1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; b. international custom, as evidence of a general practice accepted as law; c. the general principles of law recognized by civilized nations; d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualifĳied publicists of the various nations, as subsidiary means for the determination of rules of law.” 26 See, e.g., Prosecutor v. Issa Hassan Sesay, Case No. SCSL-03-05-PT, Decision on the Prosecutor’s Motion for Immediate Protective Measures for Witnesses and Victims and for Non-Public Disclosure, 23 May 2003, paras. 11–12. See also Joinder Decision, paras. 26–28. 27 The Trial Chamber is cognisant of the fact that the temporal jurisdiction of each of the International Criminal Tribunals may impact upon the applicability of certain of their fĳindings of the state of customary international law at the time relevant to those Tribunals, as opposed to the temporal jurisdiction of the Special Court. 28 See Response, para. 1. interlocutory decisions – trial chamber 227

Subject to the provisions of Rules 53, 69 and 75, the Prosecutor shall: Within 30 days of the initial appearance of an accused, disclose to the Defence copies of the statements of all witnesses whom the Prosecutor intends to call to testify and all evidence to be presented pursuant to Rule 92bis at trial. Upon good cause being shown, a judge of the Trial Chamber may order that copies of the statements of additional prosecution witnesses be made available to the defence within the prescribed time. We observe that Rule 72(A) does not envisage such a distinction.29 The Trial Chamber fĳinds therefore that the Prosecution’s objection that the Motion is time- barred lacks merit on the grounds that it seeks to preclude the Accused from exercising his right to challenge the formal validity of the Indictment based on new disclosure material, where the Prosecution complies with its disclosure obligation in stages, a position which, in our opinion, violates the doctrine of fundamental fairness.

III. Applicable Law

29. Of relevance here is Article 17(4) (“Rights of the Accused”) of the Statute, which prescribes certain minimum guarantees that must be affforded to each accused. Article 17(4) provides that: In the determination of any charge against the accused pursuant to the present Statute, he or she shall be entitled to the following minimum guarantees, in full equality: a. To be informed promptly and in detail in a language which he or she understands of the nature and cause of the charge against him or her; b. To have adequate time and facilities for the preparation of his or her defence and to communicate with counsel of his or her own choosing; […] 30. Rule 47(C) (“Review of Indictment”) specifĳies what information must be contained in an indictment. It provides: The indictment shall contain, and be sufffĳicient if it contains, the name and particulars of the suspect, a statement of each specifĳic offfence of which the named suspect is charged and a short description of the particulars of the offfence. It shall be accompanied by a Prosecutor’s case summary briefly setting out the allegations he proposed to prove in making his case. 31. Preliminary motions alleging defects in the form of the indictment are brought pursuant to Rule 72(A), (B)(i) and (D).

29 Rule 72(A) provides: Preliminary motions by either party shall be brought within 21 days following disclosure by the Prosecutor to the Defence of all material envisaged by Rule 66(A)(i). 228 part ii

32. The Trial Chamber has held that the purpose of ensuring that an indictment is in the correct form is “to ensure the integrity of the proceedings against an accused person and to guarantee that there are no undue procedural constraints or burdens on his ability to adequately and efffectively prepare his defence.30 An indictment therefore “must embody a concise statement of the facts specifying the crime or crimes preferred against the accused” and “must plead with sufffĳicient specifĳicity or particularity the facts underpinning the specifĳic crimes.”31 33. The Trial Chamber has also identifĳied the following principles,inter alia, that must be adhered to when framing an indictment, which are to be read in the context of its comments in paragraph 19 above on the factors to be considered when determining the required specifĳicity of pleadings, in the sphere of international criminality:32 (i) Allegations in an indictment are defective in form if they are not sufffĳi- ciently clear and precise so as to enable the accused to fully understand the nature of the charges brought against him. (ii) The fundamental question in determining whether an indictment was pleaded with sufffĳicient particularity is whether an accused had enough detail to prepare his defence. (iii) The indictment must state the material facts underpinning the charges, but need not elaborate on the evidence by which such material facts are to be proved. (iv) The degree of specifĳicity required in an indictment is dependent upon whether it sets out material facts of the Prosecution’s case with enough detail to inform the accused clearly of the charges against him so he may prepare his defence. (v) The nature of the alleged criminal conduct with which the accused is charged, including the proximity of the accused to the relevant events is a decisive factor in determining the degree of specifĳicity in the indictment.

30 Sesay Decision, para. 6. 31 Id. 32 Contrastingly, the regime of rules governing the framing of indictments within the national law of Sierra Leone in so far as national crimes are concerned is very strict indeed. For example, in the treason case of Lansana and Eleven Others v. Reginam, ALR.SL.186 (1970-71), the Sierra Leone Court of Appeal laid down a strict general rule on the issue of duplicity in indictments, namely that for each separate count in an indictment there should be one act set out which constitutes the offfence. If two or more offfences are set out in the same count separated by the disjunctive “or” the count is bad for duplicity and the conviction should be quashed. This decision is extensively discussed by Bankole Thompson in his book, The Criminal Law of Sierra Leone, (University Press of America, Inc. 1999) pp. 178–206. It is of interest to note that one of the Counsel who argued the issue of duplicity in the Lansana case was Appeals Chamber Judge, Justice George Gelaga King. interlocutory decisions – trial chamber 229

(vi) The indictment must be construed as a whole and not as isolated and separate individual paragraphs. (vii) The practice of identifying perpetrators of alleged crimes by reference to their category or group is permissible in law. (viii) Where an indictment charges the commission of crimes on the part of the accused with “other superiors,” the Prosecutor is not obliged to provide an exhaustive list of such “other superiors.” (ix) In cases of mass criminality the sheer scale of the offfences makes it impossible to give identity of the victims. (x) Identifĳication of victims in indictments by reference to their group or category is permissible in law. (xi) The sheer scale of the alleged crimes make it “impracticable” to require a high degree of specifĳicity in such matters as the identity of the victims and the time and place of the events. (xii) Individual criminal responsibility under Article 6(1) and criminal responsibility as a superior under Article 6(3) of the Statute are not mutually exclusive and can be properly charged both cumulatively and alternatively based on the same set of facts.33

IV. On The Merits of the Motion

34. It may be recalled that the challenges to the Indictment raised by the Defence fall into fĳive main categories: (a) failure to comply with Rule 47(C) and Article 17(4)(a) of the Statute; (b) lack of precision in the form of the indictment; (c) failure to particularise mode of participation under Article 6(1), individual criminal responsibility; (d) lack of specifĳicity for joint criminal enterprise; and (e) failure to particularise responsibility as a superior.

A. Failure to Comply with Rule 47(C) and Article (17)(4)(a) of the Statute 35. In respect of this category of challenges, the Defence submission is twofold: 1. that the Prosecution failed to provide a case summary pursuant to Rule 47(C); and 2. that the Indictment does not contain “the name and particulars of the suspect, a statement of each specifĳic offfence of which the named suspect is charged and a short description of the particulars of the offfence.”34

33 See Sesay Decision, para. 7, citations omitted. 34 See Motion, paras. 2–5. 230 part ii

36. As regards the fĳirst arm of this challenge, the Trial Chamber fĳinds on the available court records, as follows: i. At the time of its submission by the Prosecution for approval pursuant to Rule 47, the original Indictment against the Accused was accompanied by an ex parte “Prosecutor Memorandum to Accompany Indict- ment,” Draft Orders for the Approval Decision and Warrant of Arrest and, in particular, by a Prosecutor’s Case Summary, comprising of one Investigator’s Statement Regarding the Accused and Individual Criminal Responsibility and one Investigator’s Statement Regarding the Charges against the Accused. ii. The Indictment and the accompanying materials referenced herein were submitted on 26 May 2003. A Decision approving the Indictment was subsequently rendered on 28 May 2003, together with the relevant Warrant of Arrest. The Decision, the Warrant, the Indictment and “all documents pertaining to the Indictment” were subject of an Order for non-disclosure pursuant to Rule 53 and upon request of the Prosecution. iii. On the execution of the Warrant of Arrest, the Accused was served, in conformity with the established practice of the Special Court and pursuant to the provisions of Rules 52 and 55 of the Rules, with the Indictment, the Warrant, the Decision Approving the Indictment and a set of basic legal instruments pertaining to the Special Court, but was not served, either directly or through his Counsel, with the Case Summary accompanying the Indictment. Accordingly, the Trial Chamber upholds the fĳirst arm of the Defence objection and hereby orders the Prosecution to serve on the Defence, a certifĳied true copy of the Case Summary accompanying the Indictment when it was submitted for approval, within three days of the date of service of this Decision. In granting this request, the Trial Chamber notes that the fĳiling of the Case Summary does not per se have an impact on alleged defects in the form of the Indictment. 37. As regards the second arm of the said objection, after a close examination of the Indictment, the Trial Chamber fĳinds that it sufffĳiciently particularises the name and related personal details of the Accused and identifĳies the crimes preferred against him.35 This specifĳic contention is, therefore, rejected.36

35 In this regard, the Trial Chamber recalls that the requirements for approval of an indictment under Rule 47(C) are distinct from the requirements for the form of the pleadings of an indictment, recognising the rights of the accused on this matter enshrined in Article 17(4)(a) and (b) of the Statute. 36 The Trial Chamber observes that while the Defence specifĳically cited Article 17(4)(a) of the Statute in relation to this challenge, its invocation of a violation of Article 17(4)(a) applies to its other challenges as well. interlocutory decisions – trial chamber 231

B. Lack of Precision in the Form of The Indictment 38. Under the second category of challenges, Counsel for the Defence began by setting out ten (10) basic principles extracted from the jurisprudence of ICTY and ICTR as to what an indictment must contain, and then proceeded to deal with the theme “Vagueness of the Indictment,” asserting that this objection applies to the Indictment in its entirety. Specifĳically, it is contended that, as regards dates, the phrase “between about” and “about” used in paragraphs 28, 34, 35, 36, 38, 41, 42, 47, 48, 52, 53, 54, 55, 60, 61 and 64 of the Indictment are “overly vague and ambiguous.” Consistent with its three prior decisions37 on the subject of defects in the form of the indictment, the Trial Chamber wishes to reiterate that it is trite to state that an indictment must be construed in its totality, and not as isolated and separate individual paragraphs or as a mere conjunction of words and phrases. The Trial Chamber further states that there is clear persuasive authority for the view that the words “between about” and “about” to denote a time frame of the commission of the alleged crimes are permissible in the context of alleged widespread and mass criminality especially where dates or times are not material elements of the alleged offfences.38 39. In the Trial Chamber’s view, such time frames, as alleged in the Indictment, do not legally impede the Accused from properly preparing his defence particularly regarding establishing an alibi, as the Defence asserts. As a matter of law, the defence of alibi does not carry a separate burden of proof; it is for the Prosecution to prove beyond any reasonable doubt that the accused was present and committed the crimes for which he is charged and thereby discredit the defence of alibi.39 It is worth observing that even though Rule 67(A)(ii)(a) of the Rules requires the Defence to notify the Prosecution of its intent to enter a defence of alibi as early as reasonably practicable, failure to fulfĳil that obligation shall not limit the right of the accused to rely on the said defence. On the issue of alleged vagueness of the phrase “At all times relevant to this Indictment,” the Trial Chamber takes the liberty of reproducing below its fĳindings on this issue in a recent Decision, to wit:

37 Sesay Decision; Kanu Decision; and Kondewa Decision. 38 Prosecutor v. Kayishema, Case No. ICTR-95-1-T-21, Judgment 21 May, 1999, paras. 81 and 85–86. 39 See Prosecutor v. Mitar Vasiljević, Case No. IT-98-32-T, Judgement, 29 November 2002, para. 15: “When a ‘defence’ of alibi is raised by an accused person, the accused bears no onus of establishing that alibi. The onus is on the Prosecution to eliminate any reasonable possibility that the evidence of alibi is true” and footnote 7: “It is not sufffĳicient for the Prosecution merely to establish beyond reasonable doubt that the alibi is false in order to conclude that his guilt has been established beyond reasonable doubt. Acceptance by the Trial Chamber of the falsity of an alibi cannot establish the opposite to what it asserts. The Prosecution must also establish that the facts alleged in the Indictment are true beyond a reasonable doubt before a fĳinding of guilt can be made against the accused.” See also, Prosecutor v. Musema, Case No. ICTR-96-13-T, Judgement, 27 January 2000, para. 108. 232 part ii

that the use of the said formulation is with reference to a determinable time frame. It presupposes that the alleged criminal activities took place over that time frame and with much regularity, a presupposition that can only be refuted by evidence.40 In this case, the time frame is determinable, as indicated under each count in relation to each allegation. Hence, the Trial Chamber does not fĳind the phrase prejudicial as to its efffect on the ability of the Accused to properly prepare his defence. The Defence challenges on this aspect of the Indictment are, therefore, untenable. 40. The next specifĳic challenge concerns locations. Set out below are the relevant contentions by the Defence: (a) that paragraphs 32, 40, 46, 51, 58, and 64 all contain the expression “included but not limited to” the following locations, and that it should be deleted for vagueness; (b) that the assertion in paragraph 20 that the Accused was a commander of AFRC/RUF forces which conducted armed operations throughout the month, eastern and central areas of the Republic of Sierra Leone is vague and does not provide sufffĳicient detail for the Defence to prepare its case on superior responsibility; (c) that paragraph 50 of the Indictment fails to particularise any locations, using the blanket location of the entire Republic of Sierra Leone; (d) that each count fails to identify with great precision the exact locations of the crimes. 41. As regards (a) above, in the Sesay Decision, the Trial Chamber ruled as follows: the Chamber is satisfĳied that the phrase “but not limited to these events” is impermissibly broad and also objectionable in not specifying the precise allegations against the Accused. It creates a potential for ambiguity. Where there is such potential, the Chamber is entitled to speculate that may be the omission of the additional material facts was done with the aim of moulding the case against the accused in the course of the trial depending on how the evidence unfolds.41 42. At the Status Conference held in this case on 8 March 2004, the Trial Chamber invited Counsel for the Accused to consider whether this Motion was overtaken by events, including inter alia the Joinder Decision issued on 27 January 2004 and the fĳiling of the Consolidated Indictment, and therefore possibly rendered moot. Counsel declined the Trial Chamber’s invitation and accordingly the Trial Chamber has considered the Motion on the merits. In doing so, however, the Trial Chamber cannot simply disregard the facts and the record as they now stand;

40 Sesay Decision, para. 22. 41 Id. para. 33 (citations omitted). interlocutory decisions – trial chamber 233 to do otherwise would result in a meaningless exercise. Thus, while the Trial Chamber applies the reasoning found in the Sesay Decision to the objections raised, and fĳinds that the objections have merit, the Trial Chamber concludes that a remedy has already been provided by the Prosecution. The offfending language, namely “included but not limited to” and “but not limited to these events” has been removed from the paragraphs cited by Counsel, namely paragraphs 32, 40, 46, 51, 58, and 64 in the former Indictment, which have been renumbered as paragraphs 42, 51, 58, 66 and 80, respectively, in the Consolidated Indictment.42 These changes were done in conformity with the Joinder Decision, in which it was ordered that the Prosecution fĳile a Consolidated Indictment for Alex Tamba Brima, Brima Bazzy Kamara and Santigie Borbor Kanu, the latter of whom had already received a Bill of Particulars from the Prosecution following an earlier Trial Chamber Order to that efffect.43 43. Accordingly, the Trial Chamber declares objection (a) in paragraph 33 moot and thereby dismisses the objection. 44. In the case of contention (b), it is abundantly clear to the Trial Chamber that by no stretch of the 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 of the AFRC/RUF forces” not that of a “foot soldier.” There is, likewise, nothing vague or imprecise about the assertion that he, allegedly, “conducted armed operations throughout the north, eastern and central areas of the Republic of Sierra Leone.” The Defence submission on this point is rejected. 45. By parity of reasoning, the Defence submissions, as set out in (c), that “paragraph 50 fails to particularise any locations and that the Indictment fails to identify with great precision the exact locations of the crimes” are unsustainable. 46. The next Defence challenge under this category, found in (d), relates to alleged vagueness and lack of specifĳicity as to the names and number of victims. The Trial Chamber has examined the allegedly offfending paragraphs, to wit, 33–34, 36–39, 41–44, 47–49, 52, 54–56, 59–60, 61, 64 and 50, and fĳinds no merit in the allegations for the following reasons. Firstly, that, as an exception to the general rule, that where it is alleged that an accused personally committed criminal acts, the indictment must plead with particularity the identity of the victims, in cases of mass criminality the sheer scale of the offfences may make it impossible to identify

42 See Indication of Specifĳic Changes to Indictments, 1 March 2004. 43 See Prosecutor v. Santigie Borbor Kanu, Case No. SCSL-03-13-PT, Decision and Order on Defence Preliminary Motion for Defects in the Form of the Indictment, 19 November 2003, para. 17, and Prosecutor v. Santigie Borbor Kanu, Case No. SCSL-03-13-PT, Bill of Particulars, 25 November 2003. 234 part ii the victims.44 Secondly, that there is no applicable magical formula as to the degree of specifĳicity required for the purposes of pleading “an indictment alleging criminality in the international domain as distinct from criminality in the domestic sphere.”45 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.”46 Thirdly, that whether the phrases complained of, for example, “an unknown number,” are permissible or not “depends primarily upon the context,” and that they would be “ ‘clearly permissible in situations where the alleged criminality was of what seems to be cataclysmic dimensions’ and where statistics are hard to come by.”47

C. Failure to Particularise Mode of Participation under Article 6(1) on Individual Responsibility 47. Under this category of challenges, the Defence contentions are as follows: (a) Failure by the Prosecution to identify in paragraph 25 of the Indictment the Accused’s mode of participation under Article 6(1) of the Statute (b) Ambiguity in pleading the several modes of participation as basis of individual responsibility under Article 6(1) (c) Lack of precision in relation to the material facts relating to acts of other persons in the context of the alleged superior responsibility on the part of the Accused (d) Failure of Prosecution to indicate as regards Article 6(1) responsibility “in relation to each individual count precisely and expressly in the particular nature of the responsibility alleged” (e) Lack of clarity as to whether the Accused “planned and/or instigated and/or ordered and/or aided and abetted” in the crimes which he is charged”

44 See The Prosecutor v. Laurent Semanza, Case No. ICTR-97-20-T, 15 May 2003 and also Sesay Decision, para. 20. 45 See Kanu Decision, para. 19. The Trial Chamber recalls that guideline, however, do exist. See fn. 18 supra. See also Prosecutor v. Zoran Kupreškić et al., Case No. IT-95-16-A, Judgement, 23 October 2001, para. 89: “materiality of a particular fact cannot be decided in the abstract. It is dependent on the nature of the Prosecution case. A decisive factor in determining the degree of specifĳicity with which the Prosecution is required to particularise the facts of its case in the indictment is the nature of the alleged criminal conduct charged to the accused. For example, 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.” 46 Id. 47 Id., citing Sesay Decision, para. 23. interlocutory decisions – trial chamber 235

(f) Lack of specifĳicity as to which particular acts of the Accused constitute the alleged course of conduct in the context of individual responsibility (g) Failure of Prosecution to indicate in respect of each count (especially as regards paragraphs 31, 39, 45, 50, 57, 63 and 64) the nature of the Accused’s responsibility under Article 6(1). 48. 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. 49. Dealing with challenges (a), (b), (d), (e), and (f) in paragraph 39 above together, the Trial Chamber takes the liberty of recalling its exposition of the law in the case of Kondewa, applying the Sesay Decision, that: as a matter of statutory interpretation, Article 6(1) ‘sets out the parameters of personal criminal responsibility under the Statute. Any act falling under one of the fĳive categories contained in the provision may entail the criminal responsibility of the perpetrator or whoever has participated in the crime in one of the ways specifĳied in the same provision of the Statute.’ On the basis of this analysis, it follows that the Indictment, at paragraph 15, sufffĳiciently specifĳies the various modes of criminal responsibility with which the Accused is charged pursuant to Article 6 (1).48 Noting that paragraph 15 of the Indictment upon which the decision in Kondewa was rendered is ipssissma verba with paragraph 25 of the Indictment herein which is the subject matter of the instant Motion, and consistent with the Trial Chamber’s rulings in Kondewa and Sesay, the Trial Chamber holds that given “the international character and dimension of the crimes alleged in the Indictment herein and the totality of the circumstances surrounding the commission of the alleged crimes gathered from a review of the Indictment, as a whole, the Accused is in no way prejudiced by the present state of the pleadings.”49 Where the Prosecution opts to plead all the diffferent heads of responsibility under Article 6(1) consistent with its discretion, it will carry the burden of proving the existence of each at the trial.50 Therefore, “whether the Accused, for example,

48 Kondewa Decision, para. 9. 49 Id. para. 10. 50 The Trial Chamber recalls that the Prosecution must intend to rely upon every head of responsibility that is pleaded. See Prosecutor v. Radoslav Brdanin and Momir Talić, Case No. IT-99-36-PT, Decision on Objections by Momir Talić to the Form of the Amended Indictment, 20 February 2001, para. 10: “It was appropriate for the indictment to defĳine individual responsibility in such extensive terms only if the prosecution intended to rely upon each of the diffferent ways pleaded. If the prosecution did not have that intention, then the irrelevant material should not have been pleaded because of the ambiguity it creates, and the prosecution should have made its intention clear. It has fĳirmly been stated that pleading individual responsibility by reference merely to all the terms of Article 7.1 is likely to cause ambiguity.” 236 part ii

‘planned,’ or ‘instigated,’ or ‘ordered,’ the commission of any of the crimes speci- fĳied in Articles 2 to 4 of the Statute is, in the Chamber’s view, pre-eminently an evidentiary matter, the key determinant of the success or failure of the Pros- ecution’s case.”51 The submissions on these challenges are, therefore, rejected. 50. In respect of the challenges by the Defence cited in paragraph 47(c) above, which relates to superior responsibility on the part of the Accused, based on a careful review of the relevant paragraphs and the Indictment as a whole, the Trial Chamber fĳinds the allegations on this theme pleaded with sufffĳicient particularity to enable the Accused to prepare adequately his defence to the said allegations. The Chamber’s fĳinding is reinforced by, for example, the following specifĳic material facts as pleaded: (i) that at all times relevant to the Indictment, the Accused was a senior member of the AFRC Junta and AFRC/RUF forces (paragraph 18); (ii) that the Accused was a member of the group which staged the coup and ousted the government of President Kabbah; that Johnny Paul Koroma, Chairman and leader of the AFRC, appointed the Accused as Public Liaison Offfĳicer within the AFRC; and that he, Accused, was a member of Junta governing body (paragraph 19); and (iii) that between about mid-February 1998 and 30 April 1998, the Accused was a commander of the AFRC/RUF forces based in Kono District; that he 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, and that he was a commander of the AFRC/ RUF forces which attacked Freetown on 6 July 1999 (paragraph 20). To a similar efffect as to specifĳicity are paragraphs 8, 9, 21, 26, 28–64 of the Indictment. It is difffĳicult to fathom what more specifĳicity can be required without risking, contrary to the basic tenets of our adversarial system, imposing an undue burden on the Prosecution to disclose or incorporate in an indictment evidence in the guise of underlying material facts. Premised on the foregoing analysis, therefore, the Chamber fĳinds the Defence challenge to be meretricious.

D. Lack of Specifĳicity for Joint Criminal Enterprise 51. Under this head of challenge, the Defence contends as follows: (a) that the Prosecution failed in paragraphs 23-24 of the Indictment to provide sufffĳicient particulars regarding the criminal nature of the purpose of the alleged joint criminal enterprise, and of any individuals engaged in the enterprise, or the identity of those persons outside Sierra Leone who

51 Kondewa Decision, para. 10. interlocutory decisions – trial chamber 237

were allegedly provided with natural resources in return for assistance in carrying out the joint criminal enterprise; (b) that the Prosecution failed to specify the nature of the participation by the Accused in the alleged common plan and no indication of the time frame over which the common plan is alleged to have existed; (c) that the Indictment did not plead the state of mind of the Accused in relation to joint criminal enterprise sufffĳiciently; (d) that the Indictment provides no defĳinition of the “unlawful means” through which the joint criminal enterprise was efffected. 52. Considering the merits of (a), (b), (c), and (d) above cumulatively under the broad theme of the requirement of specifĳicity for pleading the doctrine of joint criminal enterprise, the Trial Chamber, on reviewing the Indictment as a whole and particularly paragraphs 23–24, makes these fĳindings: (i) that the Indictment, in its entirety, is predicated upon the notion of a joint criminal enterprise, and that paragraph 24 reinforces this fĳinding in these terms:

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 joint criminal enterprise or were a reasonably foreseeable consequence of the joint criminal enterprise; (ii) that the nature of the alleged joint criminal enterprise, the nature of the Accused’s participation in it, the identity of those involved in the same, and the time frame of the alleged joint criminal enterprise are all pleaded with the degree of particularity as the factual parameters of the case admits. For example, paragraph 23 alleges:

The AFRC, including the Accused, and the RUF 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. 53. As to the Defence contention that the Prosecution must disclose the names of persons outside Sierra Leone to whom diamonds were to be provided in return for assistance in carrying out the joint criminal enterprise, the Trial Chamber reiterates that this is an evidentiary matter. Equally pertinent to dispelling this Defence misconception, is that the time frame of the joint criminal enterprise is sufffĳiciently pleaded as “All times relevant to this Indictment.” By parity of reasoning, the Trial Chamber notes that the nature of the Accused’s participation is 238 part ii pleaded in paragraphs 18–23, and that the identity of those involved in the joint criminal enterprise is sufffĳiciently pleaded in paragraphs 8, 19, 21, and 22. In respect of the related contentions that the Prosecution must plead the Accused’s state of mind in relation to the joint criminal enterprise, that the voluntariness of the Accused must also be pleaded, and that there is no defĳinition of the “unlawful means” in the context of joint criminal enterprise, the Trial Chamber makes shortshrift of these contentions with two brief observations. Firstly, that they are essentially evidentiary matters and secondly, that there is some degree of specifĳic- ity in respect of these allegations in so far as the factual context of the case, as alleged, admits. The Trial Chamber, accordingly, rejects these challenges as ill-conceived.

E. Failure to Particularise: Responsibility as a Superior 54. The pith of the objections taken to the form of the Indictment by the Defence in respect of the Accused’s superior responsibility under Article 6(3) of the Special Court’s Statute, as alleged, in the hostilities forming the basis of the charges in the Indictment, is threefold. First, that the information provided by the Prosecution in paragraphs 18–20 of the Indictment lacks sufffĳicient particularity. Second, that paragraph 19 fails to identify the group that staged the coup. Third that paragraph 20 fails to specify the identities of the forces that conducted armed attacks, of which the Accused was allegedly commander, and their areas of responsibility.52 55. Taking these kindred challenges together, the Trial Chamber, after reviewing the allegedly offfending paragraphs, fĳinds as follows: (i) that paragraphs 18–20 of the Indictment plead with sufffĳicient particularity the relationship between the Accused and the alleged perpetrators in the superior-subordinate context;53 (ii) that the identities of subordinates are sufffĳiciently pleaded in paragraphs 8, 9, 18, 20–21 and 28 as members of the AFRC, Junta, RUF and AFRC/ RUF forces; (iii) that paragraphs 21 and 26 set out with reasonable particularity the allegation that the Accused was a superior, together with other superiors,

52 Motion, para. 10. 53 For example, paragraph 20 alleges: “Between about mid-February 1998 and 30 April 1998 BRIMA BAZZA KAMARA was a commander of AFRC/RUF forces based in Kono District. In addition, the ACCUSED was a commander of AFRC/RUF forces which conducted armed operations throughout the work, 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. The ACCUSED was a commander of AFRC/RUF forces which attacked Freetown on 6 January 1999.” interlocutory decisions – trial chamber 239

“exercised authority, command and control over all subordinate members of AFRC, Junta and AFRC/RUF forces”; (iv) that paragraphs 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 and humanitarian assistance personnel and peacekeepers assigned to UNAMSIL, terrorizing of the civilian population (to wit, unlawful killings, physical and sexual violence against civilian men, women and children, abductions, looting and destruction of civilian property); and (v) that the Indictment alleges in paragraph 26 that the “ACCUSED is responsible for the criminal acts of his subordinates in that he knew or had reason to know that the subordinate was about to commit such acts or had done so and that the ACCUSED failed to take the necessary and reasonable measures to prevent such acts or punish the perpetrator thereof.” Without further articulation of the law in Article 6(3) beyond this Chamber’s exposition in Sesay,54 it is the Chamber’s considered opinion that the Defence contentions under this fĳinal category of challenges do lack substance. 56. In conclusion, based on the analysis in the foregoing paragraphs herein and a thorough review of requirements for an indictment under international criminal law,55 the Trial Chamber fĳinds the Indictment in substantial compliance with Article 17(4)(a) of the Court’s Statute and Rule 47(C) of the Rules as to its formal validity.

V. Disposition

BASED ON THE FOREGOING ANALYSIS AND DELIBERATIONS, PURSUANT TO Article 17 of the Statute and Rule 72(B)(ii) of the Rules, THE TRIAL CHAMBER UPHOLDS the Motion in part, and RULES AS FOLLOWS: 1. The Prosecution shall serve on the Defence, a certifĳied true copy of the Case Summary accompanying the Indictment when it was submitted for approval, within three days of the date of service of this Decision; and

54 See Sesay Decision, paras. 13–15. 55 In addition to reviewing Indictments issued in the international sphere, the Trial Chamber has reviewed, inter alia, the Sample Indictments and Charges contained in Appendix H of Archbold, International Criminal Courts, Practice, Procedure and Evidence, Sweet & Maxwell, London, 2003, pages 1409–81. 240 part ii

2. The form of the Indictment was defective in that it contained the phrases “included but not limited to” and “but not limited to these events.” While dismissing the current objections as moot,56 the Prosecution shall review the Consolidated Indictment to ensure that such phrases are not present therein. In the event that such phrases are in the Consolidated Indictment, the Prosecution shall either delete these phrases or provide in a Bill of Particulars specifĳic additional allegations against the Accused which shall state in the full extent of the charges against the Accused in detail. AND THE TRIAL CHAMBER FURTHER REJECTS AND DISMISSES ALL OTHER DEFENCE OBJECTIONS. Done at Freetown this 1st day of April 2004.

Judge Bankole Thompson Judge Benjamin Mutanga Itoe Judge Pierre Boutet Presiding Judge, Trial Chamber

56 See Sesay Decision, paras. 35–36. THE TRIAL CHAMBER

Before: Judge Bankole Thompson, Presiding Judge Judge Benjamin Mutanga Itoe Judge Pierre Boutet Registrar: Robin Vincent Date: 12 February 2004 PROSECUTOR Against Alex Tamba Brima Brima Bazzy Kamara Santigie Borbor Kanu (Case No.SCSL-04-16-PT)

ORDER FOR INTERIM MEASURES IN RELATION TO ASSIGNMENT OF COUNSEL FOR ACCUSED BRIMA

Office of the Prosecutor: Defence Counsel for Alex Tamba Brima: Luc Côté Terence Terry Robert Petit Boi-Tia Stevens Defence Counsel for Brima Bazzy Kamara: Ken Fleming Defence Counsel for Santigie Borbor Kanu: Geert-Jan Alexander Knoops 242 part ii

THE TRIAL CHAMBER (“Trial Chamber”) of the Special Court for Sierra Leone (“Special Court”) composed of Judge Bankole Thompson, Presiding Judge, Judge Benjamin Mutanga Itoe and Judge Pierre Boutet; SEIZED OF a motion fĳiled on 5 January 20041 (“Motion”) on behalf of Alex Tamba Brima (“Accused”) pursuant to Rule 72 of the Rules of Procedure and Evidence of the Special Court (“Rules”) and Article 12 of the Directive on the Assignment of Counsel, in which the Accused challenges the decision by the Acting Principal Defender not to enter a Legal Services Contract with the counsel assigned to the Accused on a provisional basis (“Provisional Counsel”) and further withdrawing such provisional assignment; NOTING the responses fĳiled to the Motion on 16 January 2004 by the Acting Principal Defender (“First Respondent”) and by the Registrar (“Second Respondent”), and the Accused’s replies to both responses on 19 January 2004; NOTING FURTHER the in camera hearing held with the Provisional Counsel, the First Respondent, the Second Respondent and the Trial Chamber on 12 February 2004; CONSIDERING THAT the Trial Chamber is currently deliberating on the Motion; CONSIDERING FURTHER the Trial Chamber’s obligation to ensure the rights of the Accused under Article 17(4)(b) and 17(4)(d) of the Statute of the Special Court; HEREBY ORDERS THAT Provisional Counsel, Mr. Terence Michael Terry, shall continue to represent the Accused in all matters before the Special Court until further Order. Done at Freetown this 12th day of February 2004

1 Applicant’s Motion against Denial by the Acting Principal Defender to Enter a Legal Service Contract for the Assignment of Counsel for and on behalf of the Accused Tamba Alex Brima the Applicant herein pursuant to Rule 72(B)(iv) of the Rules of Procedure and Evidence of the Special Court for Sierra Leone and pursuant to Article 12(A) of the Directive on the Assignment of Counsel of the Special Court for Sierra Leone, and under the Inherent Jurisdiction of the Trial Chamber of the Special Court for Sierra Leone. THE TRIAL CHAMBER

Before: Judge Bankole Thompson, Presiding Judge Judge Benjamin Mutanga Itoe Judge Pierre Boutet Registrar: Robin Vincent Date: 13 February 2004 PROSECUTOR Against Alex Tamba Brima Brima Bazzy Kamara Santigie Borbor Kanu (Case No.SCSL-2004-16-PT)

DECISION ON PROSECUTION’S APPLICATION FOR LEAVE TO FILE AN INTERLOCUTORY APPEAL AGAINST THE DECISION ON THE PROSECUTION MOTIONS FOR JOINDER

Office of the Prosecutor: Defence Counsel for Alex Tamba Brima: Luc Côté Terence Terry Robert Petit Karim Khan Boi-Tia Stevens Defence Counsel for Santigie Defence Counsel for Brima Bazzy Kamara: Borbor Kanu: Geert-Jan Alexander Knoops Ken Fleming C.A. Osho Williams 244 part ii

THE TRIAL CHAMBER (“the Chamber”) of the Special Court for Sierra Leone (“the Special Court”) composed of Judge Bankole Thompson, Presiding Judge, Judge Pierre Boutet and Judge Benjamin Mutanga Itoe; SEIZED of the Application for Leave to File an Interlocutory Appeal against the Decision on the Prosecution Motion for Joinder fĳiled on 3 February 2004 by the Offfĳice of the Prosecutor (“Prosecution”) in the case SCSL-2004-16-PT (“the Motion”) pursuant to Rule 73(B) of the Rules of Procedure and Evidence of the Special Court (“the Rules”); NOTING the Response fĳiled on behalf of Santigie Borbor Kanu on 6 February 2004 to which the Prosecution fĳiled a Reply on 9 February 2004, the Response fĳiled on behalf of Alex Tamba Brima on 9 February 2004 to which the Prosecution fĳiled a Reply on 11 February and the Response fĳiled on behalf of Brima Bazzy Kamara on 9 February 2004 to which the Prosecution fĳiled a Reply on 12 February (singularly and collectively “the Defence Responses” and “the Prosecution Replies”); CONSIDERING THE SUBMISSIONS AND ARGUMENTS OF THE PARTIES

I. The Motion

A. The Prosecution Submissions 1. Pursuant to Rule 73(B) of the Rules, the Prosecution seeks leave to fĳile an interlocutory appeal in respect of the Decision on the Prosecution’s Motion for Joinder, dated 27 January 2004 (“the Joinder Decision”), in which the Chamber ordered the joint trial of Issa Hassan Sesay, Morris Kallon, and Augustine Gbao of the RUF, and a separate joint trial of Alex Tamba Brima, Brima Bazzy Kamara and Santigie Borbor Kanu of the AFRC.1 2. The Prosecution submitted as follows: a) That since it intends to lead essentially the same evidence against each accused person, all Prosecution witnesses, with the possible exception of strictly biographical ones, would be required to testify twice to the exact same events, which might cause some witnesses to refrain from testifying.2 b) That Prosecution witnesses with fĳirst hand knowledge of the actions of the accused would not be in the position to testify twice because of credible security concerns.3

1 Decision and Order on Prosecution Motions for Joinder, 27 January 2004, SCSL-2003-05-PT; SCSL-2003-06-PT; SCSL-2003-07-PT; SCSL-2003-09-PT; SCSL-2003-10-PT; SCSL-2003-13-PT. 2 Motion, para. 15. 3 Motion, para. 16. interlocutory decisions – trial chamber 245

c) That by forcing the appearance of the same witnesses twice, the Chamber’s decision means a prolonged stay of the witnesses in the protection program, which will increase the fĳinancial costs signifĳicantly.4 d) That having two separate trials on essentially the same evidence and by the same panel of judges will jeopardize the principle of a fair trial, as the same panel of Judges assess the credibility of witnesses and the weight of their testimony in both trials.5 e) That in the event of a second Trial Chamber being constituted and a separate bench of Judges sitting on the second trial, the Judges will hear essentially the same trial as the fĳirst, but may render contradictory or inconsistent decisions regarding the credibility and weight of the same witnesses in the fĳirst trial.6 f) Furthermore, the Prosecution submitted that two separate trials will compromise the principle of equality of arms, as it will place the Prosecution at a substantial disadvantage vis-à-vis the Defence in whichever trial proceeds second. As the Joinder Decision forces the Prosecution to call its witnesses to testify twice, they are subject to cross-examination twice on the same evidence.7 3. In light of the above, the Prosecution submitted that the requirements for granting leave are met as the Joinder Decision, if allowed to stand, would cause “irremediable” prejudice to the Prosecution that could not be cured by the fĳinal disposal of the trial, including post-judgment appeal.8

B. The Defence Responses 4. In the Response fĳiled on behalf of Alex Tamba Brima, the Defence submitted that the Chamber should refuse the Motion on the basis that it was fĳiled outside the three-day time limit for fĳiling applications for leave to appeal. 5. The Defence for Brima Bazzy Kamara and Santigie Borbor Kanu submitted that the Prosecution failed to satisfy the test laid down in Rule 73(B) with regard to the existence of “exceptional circumstances.”9 6. On the question of “irreparable prejudice,” the Defence for Santigie Borbor Kanu argued that only procedural ramifĳications were referred to by the Prosecution and therefore no substantive rights of the Prosecution had been shown to be

4 Motion, para. 17. 5 Motion, para. 19. 6 Motion, para. 20. 7 Motion, para. 21. 8 See Motion, para. 12. 9 Responses fĳiled on behalf of Brima Bazzy Kamara para. 15 and on behalf of Santigie Borbor Kanu, para. 3. 246 part ii endangered by the Joinder Decision.10 The Defence for Alex Tamba Brima stated that the reasons given by the Prosecution for “irreparable prejudice” are without merit and merely speculative.11 7. In addition, the Defence for Brima Bazzy Kamara and Santigie Borbor Kanu respectively stressed the fact that the Joinder Decision from which the Prosecution seeks leave to appeal shows careful deliberation and takes into account the factions and their respective command structures. They submit that Rule 82(B) on “Joint and Separate Trials” was correctly interpreted and applied by the Trial Chamber.12 On behalf of Kamara, the Defence further submitted that there should be a demonstration by the Prosecution that the Chamber’s discretion has not been properly or judicially exercised.13 C. The Prosecution Replies 8. The Prosecution reiterated in its Replies that its submissions clearly show that the Joinder Decision would cause “irreparable prejudice” for the Prosecution if allowed to stand.14 It noted that the test required under Rule 73(B) for leave to appeal to be granted is for the Prosecution to show the Court that it will sufffer irreparable prejudice as a result of its decision, not any demonstration of a miscarriage of justice.15 9. The Prosecution disputed in its Reply to the Response on behalf of Alex Tamba Brima the Defence contention that the reasons advanced by the Prosecution to show it will sufffer irreparable prejudice are merely speculative. It stated that the security concerns and the consequent unwillingness of witnesses to testify, as well as the strain and hardship on the witness protection program, are factual and realistic.16 HAVING DELIBERATED THE CHAMBER DECIDES AS FOLLOWS

II. The Procedural Aspect of Time Limits

10. Rule 73(B) of the Rules states: “Decisions rendered on such motions are without interlocutory appeal. However, in exceptional circumstances and to avoid irreparable prejudice to a party, the Trial

10 Response fĳiled on behalf of Santigie Borbor Kanu, para. 6. 11 Response fĳiled on behalf of Alex Tamba Brima, pp. 5-6. 12 Responses fĳiled on behalf of Brima Bazzy Kamara, para. 8, and on behalf of Santigie Borbor Kanu, para. 5. 13 Responses fĳiled on behalf of Brima Bazzy Kamara para. 3. 14 Prosecution’s Reply to Defence Response fĳiled on behalf of Santigie Borbor Kanu, para. 8, Prosecution’s Reply to Defence Response fĳiled on behalf of Alex Tamba Brima, para. 9, and Prosecution’s Reply to Defence Response fĳiled on behalf of Brima Bazzy Kamara, para. 4. 15 Prosecution’s Reply to Defence Response fĳiled on behalf of Brima Bazzy Kamara, para. 3. 16 Prosecution’s Reply to Defence Response fĳiled on behalf of Alex Tamba Brima, para. 13. interlocutory decisions – trial chamber 247

Chamber may give leave to appeal. Such leave should be sought within 3 days of the decision and shall not operate as a stay of proceedings unless the Trial Chamber so orders.” (Emphasis added) 11. It might be useful to fĳirst dispose of the defence objection by Alex Tamba Brima that the Motion was fĳiled out of time. The Joinder Decision was delivered orally in court on 27 January 2004. However, the published reasons and order were not fĳiled and served on the parties until 28 January 2004. As a result, this Chamber issued a Corrigendum to the Joinder Decision that amended one of the orders as follows: “DECIDES AND ORDERS that the second consequential order of the Decision shall be changed in the following manner: 2. That the said consolidated indictments be fĳiled in the Registry within ten (10) days of the date of delivery of this Decision; Shall read: 2. That the said consolidated indictments be fĳiled in the Registry within ten (10) days of the date of service of this Decision”;17 Similarly, the Chamber holds that for the purpose of interpreting the time limit in Rule 73(B), the time began to run from the date of service of the Joinder Decision, which was 28 January 2004. Pursuant to Rule 7 of the Rules, the time for fĳiling any application for leave to appeal expired at the end of 3 February 2004, given that 2 February 2004 was a Public Holiday in Sierra Leone and no documents were accepted for fĳiling that day. As such, the Motion was fĳiled within time.

III. The Test Under Rule 73(B)

12. In addressing the key aspects of Rule 73(B), the Chamber wishes to emphasise at the outset that the fĳirst part of Rule 73(B) contains a clear statement of the general position in relation to interlocutory appeals. The second part of that Rule creates an extremely limited exception to this general position. 13. As a general rule, interlocutory decisions are not appealable and consistent with a clear and unambiguous legislative intent, this rule involves a high threshold that must be met before this Chamber can exercise its discretion to grant leave to appeal. The two limbs to the test are clearly conjunctive, not disjunctive; in other words, they must both be satisfĳied. 14. This interpretation is unavoidable, given the fact that the second limb of Rule 73(B) was added by way of an amendment adopted at the August 2003

17 SCSL-03-05-PT-097, SCSL-03-06-PT-089, SCSL-03-07-PT-152, SCSL-03-09-PT-079, SCSL-03- 10-PT-060, SCSL-03-13-PT-043, Corrigendum “Decision and Order on Prosecution Motions for Joinder,” 28 January 2004. 248 part ii

Plenary. This is underscored by the fact that prior to that amendment no possibility of interlocutory appeal existed and the amendment was carefully couched in such terms so as only to allow appeals to proceed in very limited and exceptional situations. In efffect, it is a restrictive provision. 15. The Chamber also notes that the amendment to Rule 73(B) created a novel test for granting leave to interlocutory appeal, as the requirement of “exceptional circumstances” does not feature in similar provisions in the Rules of the International Criminal Tribunal for the former Yugoslavia (“ICTY”) and the International Criminal Tribunal for Rwanda (“ICTR”). The relevant provision in the Rules of those Tribunals states that: “Decisions on all motions are without interlocutory appeal save with certifĳication by the Trial Chamber, which may grant such certifĳication if the decision involves an issue that would signifĳicantly afffect the fair and expeditious conduct of the proceedings or the outcome of the trial, and for which, in the opinion of the Trial Chamber, an immediate resolution by the Appeals Chamber may materially advance the proceedings.”18 This Chamber must apply an entirely new and considerably more restrictive test than the one applied by the ICTR or the ICTY. Furthermore, the only relevant decision of the Special Court to date applied the earlier version of Rule 73(B).19 There is therefore the need for an authoritative statement by the Chamber on the implication and efffect of the amended rule. Nevertheless, this restriction is in line with the trend and our determination to tighten the test for granting leave in respect of interlocutory appeals in the interests of expeditiousness. The further restriction is appropriate and acceptable in the peculiar circumstances of the Special Court whose mandate, we must observe, is limited in its duration. 16. It is clear then from a plain reading of Rule 73(B) that granting leave is an exceptional option. As this is an exclusionary rule, if the two-limb test has been complied with, the Prosecution must demonstrate that there is something to justify the exercise of this discretion by the Chamber in its favour. 17. In the Motion before the Chamber, the Prosecution submissions focus primarily on the question of “irreparable prejudice to a party,” which is only the

18 ICTY Rules of Procedure and Evidence, adopted 11 February 1994, as amended 17 July 2003 and ICTR Rules of Procedure and Evidence, adopted 29 June 1995, as amended 27 May 2003, common Rule 73(B) [Other Motions]. This certifĳication procedure was added in 2002 in the ICTY, (prior to which leave applications were decided by a bench of 3 Appeal Chamber judges on the basis of incurable prejudice or “if the issue in the proposal appeal is of general importance to proceedings before the Tribunal or in international law generally”), and in the ICTR in May 2003 (prior to which there was no interlocutory appeal on Motions). 19 Prosecutor v. Morris Kallon, Decision on the Defence Application for Leave to Appeal, 10 Dec. 2003. interlocutory decisions – trial chamber 249 second limb of the test in Rule 73(B) which the Chamber must apply. The Prosecution has failed to make substantive references to “exceptional circumstances,” and the Chamber has no basis to conclude that any exceptional circumstances have been established. 18. Based on the foregoing, and having found that no exceptional circumstances have been articulated by the Prosecution to warrant additional comments, it would not be necessary to address the question of irreparable prejudice given that the test is conjunctive. The Chamber, however, notes that the main submissions of the Prosecution on this point relate mostly to questions such as cost and security of witnesses, the order in which the trials commence, and the fairness of the trials if they are heard before a single Trial Chamber. It has been suggested by the Prosecution that there might be some added difffĳiculties in the management of the Prosecution case, some additional work and possibly problems if this application for leave to appeal were turned down, but nothing that has been shown in our view to constitute “irreparable prejudice.” FOR THESE REASONS 19. The Chamber refuses the Prosecution application for leave to fĳile an interlocutory appeal and accordingly dismisses the Motion.

Done at Freetown this thirteenth day of February 2004.

THE TRIAL CHAMBER

ORDER TO THE PROSECUTION TO FILE DISCLOSURE MATERIALS AND OTHER MATERIALS IN PREPARATION FOR THE COMMENCEMENT OF TRIAL

Office of the Prosecutor: Defence Counsel for Alex Tamba Brima: Luc Côté Terence Terry Robert Petit Defence Counsel for Brima Bazzy Kamara: Ken Fleming Defence Counsel for Santigie Borbor Kanu: Geert-Jan Alexander Knoops 252 part ii

THE TRIAL CHAMBER (“Trial Chamber”) of the Special Court for Sierra Leone (“Special Court”); NOTING the Status Conference held in this case on 8 March 2004, and the discussions therein on, inter alia, compliance with disclosure obligations under Rule 66 of the Rules of Procedure and Evidence of the Special Court (“Rules”), the number of witnesses to be called by the Offfĳice of the Prosecutor (“Prosecution”) during the presentation of its case, and the state of preparedness for trial of the Prosecution and the defence counsel (“Defence”) for Alex Tamba Brima, Brima Bazzy Kamara, and Santigie Borbor Kanu (“Accused”); CONSIDERING that Rule 66 (“Disclosure of materials by the Prosecutor”) of the Rules in force at the time of the Status Conference provided: (A) Subject to the provisions of Rules 53, 69 and 75, the Prosecutor shall: (i) Within 30 days of the initial appearance of an accused, disclose to the Defence copies of the statements of all witnesses whom the Prosecutor intends to call to testify and all evidence to be presented pursuant to Rule 92bis at trial. Upon good cause being shown, a Judge of the Trial Chamber may order that copies of the statements of additional prosecution witnesses be made available to the defence within a prescribed time. (ii) At the request of the defence, subject to Sub-Rule (B), permit the defence to inspect any books, documents, photographs and tangible objects in his custody or control, which are material to the preparation of the defence, upon a showing by the defence of the categories of. Or specifĳic, books, documents, photographs and tangible objects which the defence considers to be material to the preparation of a defence or to inspect any books, documents, photographs and tangible objects in his custody or control which are intended for use by the Prosecutor as evidence at trial or were obtained from or belonged to the accused. […] CONSIDERING that Rule 66 of the Rules currently in force1 provides: (A) Subject to the provisions of Rules 50, 53, 69 and 75, the Prosecutor shall: (i) Within 30 days of the initial appearance of an accused, disclose to the Defence copies of the statements of all witnesses whom the Prosecutor intends to call to testify and all evidence to be presented pursuant to Rule 92bis at trial. Upon good cause being shown, a Judge of the Trial Chamber may order that copies of the statements of additional prosecution witnesses be made available to the defence within a prescribed time. (ii) Continuously disclose to the Defence copies of the statements of all additional prosecution witnesses whom the Prosecutor intends to call to testify, but not later than 60 days before the date for trial, or as otherwise ordered by a Judge of the Trial Chamber either before or after the commencement

1 The Rules of Procedure and Evidence of the Special Court were amended at the 5th Plenary Session held in Freetown 11-14 March 2004. interlocutory decisions – trial chamber 253

of the trial, upon good cause being shown by the Prosecution. Upon good cause being shown by the Defence, a Judge of the Trial Chamber may order that copies of the statements of additional prosecution witnesses that the Prosecution does not intend to call be made available to the defence within a prescribed time. (iii) At the request of the defence, subject to Sub-Rule (B), permit the defence to inspect any books, documents, photographs and tangible objects in his custody or control, which are material to the preparation of the defence, upon a showing by the defence of categories of, or specifĳic, books, documents, photographs and tangible objects which the defence considers to be material to the preparation of a defence, or to inspect any books, documents, photographs and tangible objects in his custody or control which are intended for use by the Prosecutor as evidence at trial or were obtained from or belonged to the accused. (B) Where information or materials are in the possession of the Prosecutor, the disclosure of which may prejudice further or ongoing investigations, or for any other reasons may be contrary to the public interest or afffect the security interests of any State, the Prosecutor may apply to a Judge designated by the President sitting ex parte and in camera, but with notice to the Defence, to be relieved from the obligation to disclose pursuant to Sub-Rule (A). When making such an application the Prosecutor shall provide, only to such Judge, the information or materials that are sought to be kept confĳidential. CONSIDERING that the Trial Chamber seeks to ensure that the rights of the Accused are not infringed, but rather are enhanced, by the amendment of Rule 66 of the Rules; NOTING that Rule 73bis of the Rules outlines materials which the Trial Chamber may order the Prosecution to fĳile at a Pre-Trial Conference, which includeinter alia (1) a list of witnesses the Prosecutor intends to call with: (a) The name or pseudonym of each witness, (b) A summary of the facts on which each witness will testify, (c) The points in the indictment on which each witness will testify, and (d) The estimated length of time required for each witness; and (2) (v) A list of exhibits the Prosecutor intends to tender into evidence stating, where possible, whether or not the defence has any objection as to authenticity; RECALLING the submissions of the Prosecution at the Status Conference on the issue of its compliance with disclosure obligations under the former Rule 66(A)(i) of the Rules, including inter alia (a) that it provided the Defence with witness summaries or redacted witness statements in accordance with the Rules, which, it asserts, is in compliance with the Decision for protective measures issued by this Trial Chamber which permits the Prosecution to withhold “identifying data” of the persons for whom protective measures have been granted;2 and (b) that

2 See, e.g., Prosecutor v. Santigie Borbor Kanu, Case No. SCSL-03-13-PT, Decision on the Prosecution Motion for Immediate Protective Measures for Witnesses and Victims, 24 November 2003, 254 part ii disclosure has been ongoing, as it has a “continuing disclosure” obligation and that “rolling disclosure” is permitted; RECALLING the submissions of the Defence at the Status Conference, including inter alia that under Rule 66(A)(i), as in force at the time of the Status Conference, the Prosecution should not be allowed to call to testify those witnesses for whom witness statements or summaries were disclosed after the initial “30 day” disclosure; NOTING the motions fĳiled in this case in relation to the alleged failure by the Prosecution to comply with disclosure obligations under the Rules;3 CONSIDERING that these motions will be addressed in a separate decision; RECALLING the submissions of the Prosecution at the Status Conference in relation to the number of witnesses it intends to call in this case, namely that the Prosecution intends to call over 100 witnesses, to testify viva voce, indicating that the Prosecution may require more than 150 witnesses to testify viva voce; RECALLING the submissions by the Defence at the Status Conference in relation to the alleged impact of the Decisions for protective measures issued in this case, and the Prosecution’s interpretation thereof, on its ability to prepare its defence; CONSIDERING that Article 17(4) (“Rights of the Accused”) of the Statute prescribes certain minimum guarantees that must be affforded to each accused, including the right to be informed promptly and in detail in a language which he or she understands of the nature and cause of the charge against him or her; the right to have adequate time and facilities for the preparation of his or her defence and to communicate with counsel of his or her own choosing; the right to be tried without undue delay; the right to examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; and the right not to be compelled to testify against himself or to confess guilt;

para. 44(a). See also Prosecutor v. Alex Tamba Brima, SCSL-03-06-PT, Decision on the Prosecutor’s Motion for Immediate Protective Measures for Witnesses and Victims and for Non-public Disclosure, 23 May 2003; Prosecutor v. Brima Bazzy Kamara, SCSL-03-10-PT, Decision on the Prosecutor’s Motion for Immediate Protective Measures for Witnesses and Victims and for Non-public Disclosure, 23 October 2003. The Prosecution sought, and was granted, protective measures for: (i) witnesses who presently reside in Sierra Leone and who have not afffĳirmatively waived their right to protective measures; (ii) witnesses who presently reside outside Sierra Leone but who have relatives in Sierra Leone, and who have not afffĳirmatively waived their rights to protective measures; and (iii) witnesses residing outside West Africa who have requested protective measures. 3 See Kanu-Motion for Exclusion of Prosecution Witness Statements and Stay of Filing of Prosecution Witness Statements pursuant to Rules 5 and 66(A)(i), 18 March 2004; Brima Motion for Exclusion of Prosecution’s Witness Statements and Stay of Filing of Prosecution Witness Statements pursuant to Rules 5 and 66(A)(i), 23 March 2004. interlocutory decisions – trial chamber 255

CONSIDERING the fundamental right of each Accused to a fair and expeditious trial; CONSIDERING the rights and protections affforded to victims and witnesses under the Statute of the Special Court, as recognised in Article 17(2) of the Statute and as provided for through Rules 69 and 75 of the Rules;4 CONSIDERING that one of the primary purposes of placing disclosure obligations upon the Prosecution, as prescribed in the Rules – and indeed ensuring its compliance with those obligations – is to ensure that the rights of the accused are respected; CONSIDERING that the right of the Accused to be tried promptly must be interpreted in light of the right of the Accused to have adequate time and facilities to prepare his defence; FINDING that the rights of the Accused in this case would be enhanced by requiring the Prosecution to provide to the Defence certain materials forthwith, as well as to provide the Defence and Trial Chamber with concrete information in relation to the case it intends to present; CONCLUDING that, upon review of the materials and information detailed in this Order, the Trial Chamber will be better positioned to set a date for the commencement of trial proceedings in this case and to make any subsequent orders to the Prosecution to reduce its witness list, if deemed necessary, pursuant to Rule 73bis (D) of the Rules, thereby promoting the right of each Accused to a fair and expeditious trial;

4 Rule 69 (“Protection of Victims and Witnesses”) provides: (A) In exceptional circumstances, either of the parties may apply to a Judge of the Trial Chamber or the Trial Chamber to order the non-disclosure of the identity of a victim or witness who may be in danger or at risk, until the Judge or Chamber decides otherwise. (B) In the determination of protective measures for victims and witnesses, the Judge or Trial Chamber may consult the Victims and Witnesses Unit. (C) Subject to Rule 75, the identity of the victim or witness shall be disclosed in sufffĳicient time before a witness is to be called to allow adequate time for preparation of the prosecution and the defence. Rule 75 (“Measures for the Protection of Victims and Witnesses”) provides, in part: A) A Judge or a Chamber may, on its own motion, or at the request of either party, or of the victim or witness concerned, or of the Victims and Witnesses Unit, order appropriate measures to safeguard the privacy and security of victims and witnesses, provided that the measures are consistent with the rights of the accused. (B) A Judge or a Chamber may hold an in camera proceeding to determine whether to order: (i) Measures to prevent disclosure to the public or the media of the identity or whereabouts of a victim or a witness, or of persons related to or associated with him by such means as: (a) Expunging names and identifying information from the Special Court’s public records; (b) Non- disclosure to the public of any records identifying the victim or witness; (c) Giving of testimony through image- or voice-altering devices or closed circuit television, video link or other similar tech- nologies; and (d) Assignment of a pseudonym; (ii) Closed sessions, in accordance with Rule 79; (iii) Appropriate measures to facilitate the testimony of vulnerable victims and witnesses, such as one-way closed circuit television. (C) A Judge or a Chamber shall control the manner of questioning to avoid any harassment or intimidation. 256 part ii

PURSUANT TO Article 17 of the Statute of the Special Court, and Rules 54, 66, 67, 68, 73bis and 92bis of the Rules; HEREBY ORDERS that the Prosecution fĳile, by 26 April 2004: 1. A witness list for all the witnesses the Prosecution intends to call at trial with the name or the pseudonym of each witness. Should the Prosecution seek to add any witnesses to this list after 26 April 2004, it shall be permitted to do so only upon good cause being shown; 2. A compliance report indicating: the number of witnesses for whom witness statements or summaries have been disclosed; the date upon which each statement or summary was disclosed; and the total number of pages of each statement or summary; 3. A summary for each witness on the witness list specifĳied in (1), indicating the exact paragraph and/or count in the Indictment to which the witness will testify, as well as an estimated length of time required for each witness; 4. A list of exhibits the Prosecution intends to tender into trial. Should the Prosecution seek to add an exhibit to this list after 26 April 2004, it shall be permitted to do so only upon good cause being shown; and 5. A copy of each exhibit which appears on the list as indicated in (4). The Prosecution is permitted to fĳile the proposed exhibits either in paper form or on CD-ROM. AND FURTHER ORDERS that the Prosecution fĳile, by 3 May 2004: 6. A chart which indicates, for each paragraph in the Indictment, the testimonial evidence and primary documentary evidence upon which the Prosecution will rely to establish the allegations contained therein. AND FURTHER ORDERS that the Prosecution, by 26 April 2004, disclose to the Defence: 7. Any statements in full, with redactions as necessary pursuant to the Decisions for protective measures, that have not yet been disclosed for each witness that appears on the witness list indicated in (1) above. Done at Freetown this 1st day of April 2004 THE TRIAL CHAMBER

Before: Judge Bankole Thompson, Presiding Judge Judge Benjamin Mutanga Itoe Pierre Boutet Registrar: Robin Vincent Date: 1 April 2004 PROSECUTOR Against Alex Tamba Brima Brima Bazzy Kamara Santigie Borbor Kanu (Case No.SCSL-04-16-PT)

ORDER TO THE PROSECUTION TO FILE A SUPPLEMENTAL PRE-TRIAL BRIEF AND REVISED ORDER FOR FILING OF DEFENCE PRE-TRIAL BRIEFS

THE TRIAL CHAMBER (“Trial Chamber”) of the Special Court for Sierra Leone (“Special Court”); RECALLING the Trial Chamber’s “Order for Filing Pre-Trial Briefs” of 13 February 2004, in which it ordered that the Offfĳice of the Prosecutor (“Prosecution”) fĳile a pre-trial brief on or before 5 March 2004 and that each Defence team fĳile its pre- trial brief on or before 26 March 2004, pursuant to Rule 54 and Rule 73bis (F) of the Rules of Procedure and Evidence of the Special Court (“Rules”); NOTING that the Offfĳice of the Prosecutor (“Prosecution”) fĳiled its pre-trial brief on 5 March 2004, in accordance with the Trial Chamber’s Order;1 NOTING that the Defence for the Accused Kanu has fĳiled its Defence Pre-Trial brief on 22 March 2004, in which, the Defence reserves its right to fĳile additional arguments in support of the brief, due to the fact that disclosure of witnesses statements by the Prosecution is still ongoing;2 NOTING that the Trial Chamber ordered that the pre-trial briefs of each Defence team for the RUF and the CDF be fĳiled two weeks prior to the date of the commencement of trials;3 NOTING that in paragraph 1 of its pre-trial brief, the Prosecution states that the pre-trial brief is fĳiled “to provide a preliminary indication as to the factual allegations and the points of law and legal issues pertinent to the case against all three accused persons”; NOTING that the Prosecution had provided notice in the pre-trial brief that it would submit a request to the Trial Chamber for permission to fĳile an additional more comprehensive pre-trial brief; NOTING that all defence counsel submitted at the Status Conference of 8 March 2004 that they were not in a position to comment on the Prosecution pre-trial brief; CONSIDERING that Rule 73bis (“Pre-Trial Conference”) of the Rules provides, in part: “(B) At the Pre-Trial Conference the Trial Chamber or a Judge designated from among its members may order the Prosecutor, within a time limit set by the Trial Chamber or the said Judge, and before the date set for trial, to fĳile the

1 Prosecution Pre-Trial Brief pursuant to Order for Filing Pre-Trial Briefs (Under Rule 54 and 73bis) of 13 February 2004, 5 March 2004. 2 Defence Pre-Trial Brief and Notifĳication of Defences pursuant to Rule 67(A)(ii)(a) and (b), 22 March 2004, para. 2. 3 Prosecutor v. Sesay, Kallon and Gbao, SCSL-04-15-PT, Revised Order for the Filing of Defence Pre- Trial Briefs, 12 March 2004; Prosecutor v. Norman, Fofana and Kondewa, SCSL-04-13-PT, Revised Order for the Filing of Defence Pre-Trial Briefs, 22 March 2004. interlocutory decisions – trial chamber 259 following: (i) A pre-trial brief addressing the factual and legal issues” (emphasis added);4 CONSIDERING that the Order of 13 February 2004 was made under Rule 54 and Rule 73bis of the Rules; CONSIDERING that each party is to address factual and legal issues in its pre-trial brief for the purposes of, inter alia, assisting the Trial Chamber in determining contested issues of fact and law; CONSIDERING the purpose of a pre-trial brief is to provide the opposing party and the Trial Chamber with notice and an overview of the case to be presented at trial, including an indication of the evidence (testimonial and documentary) that will be relied upon in establishing its case;5 CONSIDERING the right of all accused, including accused who are jointly indicted and tried, to be informed of the nature and cause of the charges against him individually, and to have adequate time and facilities to prepare his defence; CONSIDERING that the Trial Chamber, and indeed opposing counsel, will be more greatly assisted by a well-prepared, detailed pre-trial brief than a pre-trial brief drafted without the benefĳit of extensive disclosure and sufffĳicient pre-trial preparation; RECALLING the Trial Chamber’s decision to hold separate joint trials for the alleged members of the RUF and the alleged members of the ARFC;6 FINDING that the Prosecution pre-trial brief is essentially in conformity with Rule 73bis (B)(i) in relation to legal issues; FINDING FURTHER however, that the Prosecution pre-trial brief does not sufffĳi- ciently address factual issues; FINDING ALSO that the Prosecution pre-trial brief does not provide the Defence or the Trial Chamber, with reasonable sufffĳiciency, of notice and an overview of

4 As is clear from this provision, the Trial Chamber recalls that it is fully within its discretion to determine when a pre-trial brief is fĳiled. Accordingly, the Trial Chamber fĳinds that the Prosecution’s comments prefacing its pre-trial brief of 5 March 2004, in which it submitted that “[i]n accordance with Rule 73bis, the Prosecution would have expected to fĳile its Pre-Trial Brief upon order from the Chamber after the holding of a Pre-Trial Conference,” to be misconceived. 5 In this respect, the Trial Chamber highlights the distinct purposes and requirements for an indictment, including that it must plead the material facts underpinning the charges contained therein so as to provide the accused with notice of the case against him, and a pre-trial brief, which should address the specifĳic factual issues underpinning those charges, including an indication of the evidence that will be relied upon to establish those facts. 6 See, e.g., Prosecutor v. Alex Tamba Brima, Case No. SCSL-03-06-PT, Decision and Order on Prosecution Motions for Joinder, 27 January 2004 (“Joinder Decisions”) paras. 38–48. 260 part ii the Prosecution’s case against each individual accused, and particularly the nexus between the crimes alleged and the alleged individual criminal responsibility of each individual accused; FINDING THEREFORE that it will be of assistance to the Defence and the Trial Chamber, and in the interests of conducting a fair and expeditious trial, to receive a supplemental Prosecution pre-trial brief addressing, with reasonable sufffĳiciency, the issues herein before highlighted; FINDING, in addition, that it is in the interest of justice to revise the Order of 13 February 2004 in relation to the date for fĳiling pre-trial briefs by the Defence also in this case; HEREBY ORDERS proprio motu, that: 1. The Prosecution shall fĳile a Supplemental Pre-Trial Brief on or before 22 April 2004; 2. The Supplemental Pre-Trial Brief shall: a. Include references to the evidence, both testimonial and documentary, upon which the Prosecution will rely to establish the factual allegations set out in the Indictment and the Prosecution pre-trial brief of 5 March 2004; b. Elaborate on the specifĳic case against each individual accused, with particular attention given to the alleged nexus between each accused and the alleged crimes; and c. Further distinguish between the case against alleged members of the RUF and the AFRC, to the extent possible, in light of the Joinder Decisions. ORDERS that the pre-trial briefs shall be fĳiled by Counsel for Alex Tamba Brima and Brima Bazzy Kamara two weeks prior to the date for the commencement of trial; FURTHER ORDERS that Counsel for Santigie Borbor Kanu shall fĳile any supplement to its pre-trial brief, if he wishes to do so, two weeks prior to the date for the commencement of trial. Done at Freetown this 1st day of April 2004 THE TRIAL CHAMBER

Before: Judge Bankole Thompson, Presiding Judge Judge Benjamin Mutanga Itoe Judge Pierre Boutet Registrar: Robin Vincent Date: 2 April 2004 PROSECUTOR Against Alex Tamba Brima Brima Bazzy Kamara Santigie Borbor Kanu: (Case No.SCSL-04-16-PT)

ORDER TO THE PROSECUTION FOR RENEWED MOTION FOR PROTECTIVE MEASURES

THE TRIAL CHAMBER (“Trial Chamber”) of the Special Court for Sierra Leone (“Special Court”); NOTING the Status Conference held in this case on 8 March 2004, and the discussions therein on the protective measures granted to victims and witnesses in this case; NOTING that in the Decisions for protective measures,1 the Trial Chamber ordered, as requested by the Offfĳice of the Prosecutor (“Prosecution”), that the Prosecution may withhold identifying data and any other information which could lead to the identity of such a persons from the Defence, and may delay the disclosure of these witnesses’ identities until 42 days before the witnesses testify in the cases against Alex Tamba Brima and Brima Bazzy Kamara and 21 days in the case against Santigie Borbor Kanu, for three categories of witnesses: (a) witnesses presently in Sierra Leone who have not afffĳirmatively waived their right to protective measures; (b) witnesses who reside outside Sierra Leone but in West Africa who have not afffĳir- matively waived their right to protective measures; and (c) witnesses outside of West Africa who have requested protective measures; RECALLING the submissions of the Prosecution at the Status Conference that in accordance with the Decisions for protective measures, it has disclosed redacted witness statements or witness summaries in lieu of witness statements, and that it has not disclosed the identity of any witnesses, save one, to the Accused or the Defence Counsel; RECALLING FURTHER the submissions from the Prosecution that certain categories of witnesses, including victim-witnesses or “insider” witnesses, may require greater levels or forms of protection than other categories of witnesses; RECALLING the submissions of the Defence at the Status Conference on the impact of the protective measures granted in this case on their trial preparation; CONSIDERING that the Statute of the Special Court specifĳically provides for the protection of victims and witnesses in Article 16(4), which prescribes that: The Registrar shall set up a Victims and Witnesses Unit within the Registry. This Unit shall provide, in consultation with the Offfĳice of the Prosecutor, protective measures and security arrangements, counselling and other appropriate assistance for

1 Prosecutor v. Alex Tamba Brima, SCSL-03-06-PT, Decision on the Prosecutor’s Motion for Immediate Protective Measures for Witnesses and Victims and for Non-public Disclosure, 23 May 2003 (“Brima Decision”); Prosecutor v. Brima Bazzy Kamara, SCSL-03-10-PT, Decision on the Prosecutor’s Motion for Immediate Protective Measures for Witnesses and Victims and for Non- public Disclosure, 23 October 2003 (“Kamara Decision”); Prosecutor v. Santigie Borbor Kanu, SCSL- 03-13-PT, Decision on the Prosecutor’s Motion for Immediate Protective Measures for Witnesses and Victims and for Non-public Disclosure, 24 November 2003 (“Kanu Decision”). interlocutory decisions – trial chamber 263

witnesses, victims who appear before the Court and others who are at risk on account of testimony given by such witnesses. The Unit personnel shall include experts in trauma, including trauma related to crimes of sexual violence and violence against children. And that Article 17(2) of the Statute provides that “[t]he accused shall be entitled to a fair and public hearing, subject to measures ordered by the Special Court for the protection of victims and witnesses”; 2 CONSIDERING Rules 69 and 75 of the Rules which implement Articles 16(4) and 17(2) of the Statute; CONSIDERING Article 17 (“Rights of the accused”) of the Statute, which prescribes certain minimum guarantees that must be affforded to each accused, including the right to have adequate time and facilities for the preparation of his defence; CONSIDERING the distinction to be drawn between granting protective measures vis-à-vis the public versus granting protective measures that amount to non-disclosure or delayed disclosure to the Accused and the Defence; CONSIDERING that the Decisions for protective measures specifĳied that the protective measures granted were applicable at that stage of the proceedings, namely at the start of the pre-trial phase;3 FINDING that at this advanced stage of the pre-trial proceedings, it would be in the interests of justice to review the protective measures required in this case, and make any necessary and appropriate variations consistent with the pre-eminent need to balance the interests of the Prosecution and those of the Defence; PURSUANT TO Article 17 of the Statute and Rules 69 and 75 of the Rules; HEREBY ORDERS that: 1) The Prosecution fĳile a renewed motion for protective measures by 3 May 2004, pursuant to Rules 69 and 75 of the Rules, for each witness who appears on the Prosecution Witness List, which will be fĳiled on 26 April 2004 in accordance with “Order to the Prosecution to File Disclosure Materials and Other Materials in Preparation for the Commencement of Trial,” of 1 April 2004. The motion shall specify the form of protection being sought for each witness including delayed disclosure, pseudonym, face distortion or closed

2 Emphasis added. 3 See, e.g., Brima Decision, para. 14 (“at this preliminary stage”), Kamara Decision, para. 19 (“justify, at this point in time, delaying the disclosure of the identities of the witnesses during the pre-trial phase); Kanu Decision, para. 39 (“at this stage of the proceedings”) and paras. 34–41 generally. 264 part ii

session, to the extent that the Prosecution can provide such specifĳication. This motion shall further provide an overview of the reasons for the protective measures sought for witnesses whose names appear on the witness list. In this regard, the Trial Chamber fĳinds that the Prosecution’s reference to specifĳic categories of witnesses may facilitate the Prosecution’s task; and 2) The protective measures granted in this case1 shall remain in force until further notice. Done at Freetown this 2nd day of April 2004

1 See note 1. THE TRIAL CHAMBER

Before: Judge Bankole Thompson, Presiding Judge Judge Benjamin Mutanga Itoe Pierre Boutet Registrar: Robin Vincent Date: 6 May 2004 PROSECUTOR Against Alex Tamba Brima Brima Bazzy Kamara Santigie Borbor Kanu (Case No.SCSL-04-16-PT)

DECISION ON PROSECUTION REQUEST FOR LEAVE TO AMEND THE INDICTMENT

THE TRIAL CHAMBER (“Trial Chamber”) of the Special Court for Sierra Leone (“Special Court”) composed of Judge Bankole Thompson, Presiding Judge, Judge Benjamin Mutanga Itoe and Judge Pierre Boutet; SEIZED of the Prosecution Request for Leave to Amend the Indictment fĳiled on 9 February 2004 (“Motion”) pursuant to Rules 50(A) and 73(A) of the Rules of Procedure and Evidence of the Special Court (“Rules”); the Response thereto, fĳiled by Defence for Santigie Borbor Kanu on 17 February (“Kanu Response”);1 and the Prosecution Reply thereto fĳiled on 20 February 2004;2 CONSIDERING the Order to Submit Indication of Specifĳic Changes to Indictments served on 26 February 2004; and also the Indication of Specifĳic Changes to the Indictments fĳiled by the Prosecution on 1 March 2004; CONSIDERING ALSO the oral submissions profffered on this matter in the course of the Status Conference held on 8 March 2004; NOTING THE SUBMISSIONS OF THE PARTIES THIS IS OUR RULING ON THIS MOTION RESUME OF THE FACTS 1. The facts, briefly stated, are that following the provisions of the Rules 50(A) and 73(A) of the Rules of Procedure and Evidence, the Prosecution is seeking our leave to amend the Indictment against the AFRC group of indictees, namely, Alex Tamba Brima, Brima Bazzy Kamara and Santigie Borbor Kanu, all of who stand indicted and detained for war crimes, crimes against humanity and offfences against international humanitarian law which fall within the jurisdiction of the Special Court pursuant to Articles 2, 3 and 4 of the Statute of the Special Court. 2. The initial indictments, in which the 3 accused were arraigned and pleaded “Not Guilty” respectively on 17 March 2003, for Alex Tamba Brima, 4 June 2003, for the Accused Brima Bazzy Kamara, and on 23 September 2003, for the Accused Santigie Borbor Kanu, were individual indictments that were approved by His Lordship, Judge Bankole Thompson on 7 March 2003 for the Accused Alex Tamba Brima and on 28 May 2003 for the Accused Brima Bazzy Kamara and by His Lordship, Judge Pierre Boutet on 16 September 2003 for the Accused Santigie Borbor Kanu.

1 The Prosecutor v. Santigie Borbor Kanu, “Response to Prosecution’s Request for Leave to Amend the Indictment,” 17 February 2004. 2 SCSL-2004-16-PT, Reply to Defence Response to Prosecution Request for Leave to Amend the Indictment, 20 February 2004. interlocutory decisions – trial chamber 267

3. On 9 October 2003, the Prosecution made an application to the Chamber to seek a consolidation of all the indictments to 2 only instead of proceeding on the individual indictments. It sought to join the 3 RUF and the 3 AFRC indictees in one consolidated indictment, and the 3 CDF indictees in the other consolidated indictment. 4. After an exchange of lengthy written, followed by oral submissions by the Parties in an open Court hearing, the Chamber, in order to avoid a conflict in the conduct of the defence between the RUF and the AFRC group, instead decided to consolidate all the indictments into 3 sets; one consolidated indictment for the RUF group of indictees, namely Issa Hassan Sesay, Morris Kallon and Augustine Gbao, and the other for the AFRC group of indictees, namely, Alex Tamba Brima, Brima Bazzy Kamara, and Santigie Borbor Kanu. Finally, one consolidated indictment was approved for the CDF group of indictees, namely, Samuel Hinga Norman, Moinina Fofana and Allieu Kondewa. 5. The Motion before us now therefore, is in fact and in efffect the 3rd in the series of indictments in their varied formulations and wordings which the Prosecution intends to fĳile after we would have granted the amendment and this, before their trial which Prosecution knows is imminent. 6. In seeking these amendments, the Prosecution is relying on the provisions of Rule 50 of the Rules of Procedure and Evidence, in order to add one more and new count of forced marriage on the already consolidated indictment. 7. In making this application, the Prosecution argues that the amendment will not prejudice the rights of the accused in that it is timely, will not unduly delay the trial of the accused, and also that the amendment sought is in the interests of justice.

For the Prosecution 8. The Prosecution seeks to add one new count, namely “Crimes against humanity – other inhumane acts (forced marriage).” Additionally, the Prosecution seeks to make “corrections and/or modifĳications” to other counts which include the expansion of time periods, an additional location for all counts related to sexual violence crimes, and the change of spellings of certain place names. 9. The Prosecution alleges that the new count is based on the same factual allegations as the other counts related to sexual violence charges and will not require further disclosure. According to the Prosecution, this is required to represent the totality of the criminal conduct of the Accused. The Prosecution further states that it did not bring the Motion prior to the joinder decision “in the interest of judicial economy” so that it could avoid fĳiling motions in each case. 268 part ii

10. The Prosecution included a two-page “Investigator’s Statement” with the Motion. The investigator states that he has found that the crimes of sexual violence are not simply sexual slavery but are most appropriately characterised as “forced marriages.” He states that new investigations have “clarifĳied” the nature of the relationships.

Th e Response: 11. The Defence Team for Santigie Borbor Kanu has fĳiled a response objecting to all new charges except the spelling of the places and names. 12. As far as the offfence of forced marriage is concerned, it argues that it was not a crime against humanity and that bringing such a charge violates the principle of legality. The Defence contests the form of the indictment and argues that the rights of the Accused have been violated because of the failure by the Prosecution to disclose the new charge promptly on his arrest. 13. Furthermore, that the extension of the charges by one and a half years prejudices the rights of the Accused and is untimely and that the defence is now limited in its investigative possibilities given the proximity to the trial. 14. We note that Counsel for Alex Tamba Brima and Brima Bazzy Kamara fĳiled no responses to the Prosecution’s Motion.

Th e Reply: 15. The Prosecution asserts that “other inhumane acts” is a residual category, that an exhaustive list as to what it encompasses is impossible and thus that it is irrelevant that the act of “forced marriage” is nowhere mentioned in existing lists. The Prosecution emphasises that the additional count is that of “other inhumane acts” and not “forced marriage.” According to the Prosecution, “other inhumane acts” is clearly defĳined, thereby complying with the principle of specifĳicity, and is evaluated by the evidence based upon the criteria of gravity and infliction of severe physical and mental injury. Also according to the Prosecution, in the context of international tribunals the speciality principle only applies to extradition situations. 16. At the Status Conference on the 8 March 2004, the Chamber put a number of questions to the Prosecution on this matter, which questions the Prosecution responded to orally. On being asked why the Prosecution waited so many months after the original indictments were approved before seeking amendment to include the charge of forced marriage, the Prosecution repeated merely that they were awaiting the decision on joinder. The Prosecution asserted that no advance notice was required in relation to the new charge. According to the Prosecution, forced marriage difffers from sexual slavery combined with forced labour and is interlocutory decisions – trial chamber 269 therefore not duplicitous in that forced marriage entails a conduct over time whereby a man forces a woman into a relationship with all the trappings of marriage, and in which, in the Prosecution’s submission, there are obligations in relation to the division of chores and sexual relations as in a marriage. In relation to the insertion of the word “about,” the Prosecution declined to give a specifĳic time- period that such a term would cover, supported the request by submitting that witnesses could rarely identify precise dates, and observed that the Trial Chamber had previously held such a term lawful. On being asked to give a date as to when the Prosecution discovered evidence to support the expanded time-frame by one and a half years in paragraph 68 of the amended indictment, the Prosecution answered that the extent of the offfences was only discovered once insiders began to disclose information, which was after the original indictment. No time-period any more specifĳic than this was given. In relation to the expansion of the indictment to include the Port Loko District location, the Prosecution submitted that evidence as to this location was only discovered after the confĳirmation of the original indictments for investigators had not been working in that area before that time. Evidence supporting this was disclosed to the Defence in the last two batches of disclosure. 17. The Chamber offfered Defence Counsel the opportunity to respond to these submissions, and Counsel for all three Accused declined that opportunity. DELIBERATIONS 18. After this overview of the facts, we would now proceed to examine the legal basis of the issues raised vis-à-vis the jurisprudence cited by the parties to buttress their arguments. At the outset, we note that the submissions made by the Kanu Defence in relation to defects in the form of the indictment can only be brought pursuant to Rule 72(B)(ii) and therefore have no place at this stage of the process. 19. Rule 50 under which the application was brought reads as follows: “(A) The Prosecutor may amend an indictment, without prior leave, at any time before its approval, but thereafter, until the initial appearance of the accused pursuant to Rule 61, only with leave of the Designated Judge who reviewed it, but in exceptional circumstances, by leave of another Judge. At or after such initial appearance, an amendment of an indictment may only be made by leave granted by the Trial Chamber pursuant to Rule 73. If leave to amend is granted, Rule 47(G) and Rule 52 apply to the amended indictment. (B) If the amended indictment includes new charges and the accused has already made his initial appearance in accordance with Rule 61, a further appearance shall be held as soon as practicable to enable the accused to enter a plea on the new charges. (C) The Accused shall have a further period of fourteen days from the date of initial appearance on the new charges in which to fĳile preliminary motions relating to the new charges.” 270 part ii

20. During the Plenary Meeting of the Judges of the Court in Freetown on the 11th of March, 2004, Rule 50 was amended to read as follows: (A) The Prosecutor may amend an indictment, without prior leave, at any time before its approval, but thereafter, until the initial appearance of the accused pursuant to Rule 61, only with leave of the Designated Judge who reviewed it but, in exceptional circumstances, by leave of another Judge. At or after such initial appearance, an amendment of an indictment may only be made by leave granted by a Trial Chamber pursuant to Rule 73. If leave to amend is granted, Rule 47(G) and Rule 52 apply to the amended indictment. (B) If the amended indictment includes new charges and the accused has already made his initial appearance in accordance with Rule 61: (i) A further appearance shall be held as soon as practicable to enable the accused to enter a plea on the new charges; (ii) Within seven days from such appearance, the Prosecutor shall disclose all materials envisaged in Rule 66(A)(i) pertaining to the new charges; (iii) The accused shall have a further period of ten days from the date of such disclosure by the Prosecutor in which to fĳile preliminary motions pursuant to Rule 72 and relating to the new charges.” 21. The other relevant provisions of the law are Articles 17(4) of the Statute of the Special Court which stipulates as follows: “In the determination of any charge against the accused pursuant to the present statute, he or she shall be entitled to the following minimum guarantees in full equality: (a) To be informed promptly and in detail in a language which he or she understands of the nature and cause of the charge against him or her; (b) To have adequate time and facilities for the preparation of his or her defence; (c) To be tried without undue delay” 22. Furthermore, Article 9(2) of the International Covenant on Civil and Political Rights (ICCPR) stipulates as follows: “Anyone who is arrested shall be informed at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.” Article 14(a), and 14(b) and 14(c) of the ICCPR are similar to and are reproduced in the relevant articles of Article 17 of the Statute. 23. The Chamber recalls that the provisions of Rule 50 of the Rules of Procedure and Evidence of the Special Court are textually the same as those of Rule 50(A), (B), (C) of the Rules of Procedure and Evidence of the International Criminal Tribunal for Rwanda (ICTR). 24. It is important to note here that the power conferred on the Court to grant an amendment is discretionary and that it should be exercised judiciously and in the overall interests of justice. interlocutory decisions – trial chamber 271

ANALYSIS 25. We would like to observe here that what at times justifĳies applications to amend charges as in this case, stems from drafting imperatives of criminal law, where for every offfence alleged and supported by the available evidence, there must be a separate and distinct count. 26. Following this practice, it is the traditional role and practice of the prosecution to bring as many counts in an indictment as possible and although it does impose on him the obligation to bring all the charges that are borne out by the evidence, nothing prevents or prohibits him either from preferring and bringing all the charges which he thinks are supported by the evidence at his disposal, not only with a view to a proper determination of the case, but also and above all, to serve the overall interests of justice. EQUALITY OF ARMS 27. The crucial consideration in this process, in our opinion, is one of timing. The question to be asked, is whether application for the amendment is brought at a stage in the proceedings where it would not prejudice the rights of the defence to a fair and expeditious trial and furthermore, whether it is made in the overall interest of justice rather than its having the efffect of giving an undue advantage to the prosecution, thereby putting in jeopardy, the doctrine of equality of arms between the Prosecution and the Defence. 28. We recall here that in the Tadic case, the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY) took the view that “Equality of arms” obligates a judicial body to ensure that neither party is put to a disadvantage when presenting its case.

BURDEN OF PROOF 29. We appreciate that the burden of proof that the Prosecution bears in every criminal trial is understandably very heavy. It commences with the detection and production of solid and convincing evidence to establish the guilt of the accused beyond all reasonable doubts. The other important component of the burden of proof is the charge or charges which the Prosecution fĳiles in order to reflect the evidence it has at its disposal and can adduce in order to discharge the obligation of “proof beyond all reasonable doubt.” 30. We would like to acknowledge here, the fact that this burden of proof is even more demanding in matters before the international criminal tribunals than it is in the municipal systems. The reason is that the protection of the rights of suspects and accused persons is not only often more clearly spelt out and 272 part ii entrenched in the statutes of those tribunals, but is also, in addition, reinforced by other international conventions and instruments that are conspicuously absent in municipal legislations. 31. To attain these objectives, we think that the Prosecution must and indeed, should be given the latitude, to resort to all means that the law permits to enable it to fully exercise its authority under the Statute and under the general and accepted principles of law and practice in the domain under review, and this, with a view to giving it the opportunity to fully assume and discharge those prosecutorial functions.

AUTONOMY OF THE PROSECUTOR 32. The Statute of the Special Court in its Article 15(1) stipulates inter alia that 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.” 33. Article 15(4), still of the Statute, inter alia, stipulates as follows: “... Given the nature of the crimes committed and the particular sensitivities of girls, young women and children victims of rape and sexual assault, abductions and slavery of all kinds, due consideration should be given in the appointment of stafff to the employment of the prosecutors and investigators experienced in gender-related crimes and juvenile justice.” 34. These provisions underscore the necessity for international criminal justice to highlight the high profĳile nature of the emerging domain of gender offfences with a view to bringing the alleged perpetrators to justice. In the light of the above, it is expected, and we hold the view, that the Prosecutor who is at the helm of the investigation process, should exercise vigilance, diligence and attention, bring before justice for trial, all those accused of having committed gender and other categories of offfences within the competence of the Court without any “undue delay,” as stipulated in Article 17(4)(c) of the Statute of the Court. 35. Our duty in situations of this nature where statutory interests are in conflict is to ensure a rigorous respect of the rights of each of the parties in the arena, and to ensure that there is no breach of one’s or the other’s rights.

EXTENT OF THE AMENDMENT SOUGHT BY THE PROSECUTION 36. The Prosecution in its submissions in this case explains that the purpose of this motion to amend the indictment is to enable it to add to it, “a new charge” of crimes against humanity – Other Inhumane Act (forced marriages), as a new count in the Consolidated Indictment. This count, the Prosecution explains, will interlocutory decisions – trial chamber 273 become the 8th and the previous counts namely, 8 through 17, will continue sequentially from counts 9 through 18. 37. The Prosecution argues that the amendment is justifĳied both in law and on the evidence and should be granted because: (a) It better reflects the full culpability of the Accused; (b) There has been no undue delay in bringing the amendment; and (c) The fĳiling of the Amended indictment will not prejudice the rights of the accused to a fair and expeditious trial. 38. The Prosecution further argues that all material have been disclosed to the Defence and that the “additional count” is based on the “exact same factual context” as the other charges in relation to sexual violence and forced labour and that no further investigations should be required since the “bush wife phenomenon” is mentioned in numerous witness statements. 39. The other components of the amendment include: (a) A modifĳication of the date in the particulars of counts 3–5; (b) The modifĳication of the time period in paragraph 71; (c) The modifĳication of time periods in paragraph 23 to reflect the death of FODAY SANKOH; (d) The addition of new spellings 40. A careful examining of all the indictments that the Prosecution has preferred against this group of indictees from the onset of this process reveals the following: 41. The original individual indictments against the 3 accused persons which were approved on the 7th March 2003 for the Accused Alex Tamba Brima and on 28 May 2003 for the Accused Brima Bazzy Kamara and by His Lordship, Judge Pierre Boutet on 16 September 2003 for the Accused Santigie Borbor Kanu, alleged sexual violence in counts 6–8. More precisely, count 6 charged each of them with Rape, Count 7 with sexual slavery and other forms of sexual violence, and fĳinally, count 8 which alleges the crime of outrage against personal dignity. 42. These same charges and counts were textually reproduced in the same form in the Consolidated Indictments. In this motion for an amendment, the Prosecution maintains that the Counts are as they always have been from the original Individual Indictments to the Consolidated Indictment and that it is only seeking the leave of the Court to add a similar offfence to those that have consistently, as we have observed, appeared all along in previous indictments. 43. It is in the light of the above that the Prosecution argues that the amendment is based on existing allegations in the current consolidated indictment as well as in the evidence already disclosed to the Defence and that consequently, 274 part ii granting the amendment will not result in an undue delay in trying the accused persons. 44. We would like in this regard, to refer to the case of the PROSECUTION VS KAREMERA ICTR-98-44-AR73 in which the Appeals Chamber of the ICTR held that in assessing whether a delay resulting from an amendment to an indictment will be “undue,” the tribunal must consider factors such as the diligence of the Prosecution in advancing the case and the timeliness of the request. In that case, the Appeals Chamber had this to say: “Although amending an indictment frequently causes delay in a short term, the Appeals Chamber takes the view that this procedure can also have the overall efffect of simplifying proceedings, by narrowing the scope of the allegations, by improving the Accused’s and the Tribunals understanding of the Prosecution’s case, or by averting possible challenges to the indictment or the evidence presented at the trial.” 45. In the case of THE PROSECUTION VS CASIMIR BIZIMUNGU & OTHERS CASE NO ICTR-99-50-AR50, 12 February 2004, the Appeals Chamber of the ICTR had this comment to make in disallowing the Prosecutions Appeal against a refusal by the Trial Chamber to grant a motion for an amendment of the indictment and I quote;

“... amendments that narrow the indictment and thereby increase the fairness and efffĳiciency of proceedings should be encouraged and usually accepted…Had the Prosecution solely attempted to add particulars to its general allegations, such amendments might well have been allowable because of their positive impact on the fairness of the trial…” (at paragraphs 19–20). 46. The crucial consideration in this process, in our opinion, is one of timing and whether the application for the amendment is brought at the stage in the proceedings where it would not prejudice the rights of the accused to a fair an expeditious trial and furthermore, whether it is made in the overall interests of justice rather than having the efffect of giving an undue advantage to the prosecution, thereby putting in jeopardy, the doctrine of ‘equality of arms’ between the Prosecution and the Defence. 47. What, however, is desirable and should be ensured is for the Prosecution, in the exercise of its duties as a separate organ under the Statute, to enjoy at certain acceptable stages of the proceedings, a free hand in executing its duties and obligations to the Court and this, before the heavy hammer of justice comes down to decide on whether it is still enduring with the weight of the irksome burden of proof that it carries all along, or whether it has discharged it and indeed, beyond any reasonable doubt. In making this observation however, we do not lose sight of the fact that the Prosecution in so acting, must do so within the confĳines of the law and by respecting, not only the legal protection accorded to the accused by the Statute, but also, the principle of a fair and expeditious trial within the context of interlocutory decisions – trial chamber 275 course, of the doctrine of equality of arms between the Prosecution and the Defence. 48. In this Motion, we fĳind that the Prosecution, during the investigations that preceded the initial appearances of the accused persons, properly addressed their minds to gender offfences and the necessity to gather the required evidence to have their perpetrators prosecuted. To ensure that this happens the Prosecution, during the investigations that preceded initial appearances, detected gender offfences. In drawing up hereafter the initial individual indictments of the accused which were approved on the 7th of March, 2003, and on which initial appearances were based, the Prosecution ensured that these individual indictments contained a number of counts related to gender offfences such as rape, sexual slavery and other forms of sexual violence and fĳinally outrages against personal dignity. 49. Furthermore, in the consolidated indictment which was approved by the Trial Chamber following a motion fĳiled to this efffect, the Prosecution again included all these enumerated gender offfences which featured in the initial individual indictments. 50. In the present motion, the Prosecution is seeking our leave to amend the already existing consolidated indictment on which the proceedings are now based, in order to add one count, and one count only, based on Forced Mar riage. The question to be addressed in these circumstances is whether this additional count or offfence as the case is, is new in terms of its being a complete novelty in the arsenal of all the counts that constitute the entire consolidated indictment. 51. Our immediate reflection on this issue that we have raised is that the count related to forced marriage which the prosecution is seeking our leave to add to the consolidated indictment is as much a sexual, indeed, a gender offfence as those that were included in the initial individual indictments and that feature in the current consolidated indictment on which this application to amend is based. 52. We would like to say here that Forced Marriage is in fact what we would like to classify, as a ‘kindred offfence’ to those that exist in the consolidated indictment in the view of the commonality of the ingredients needed to prove offfences of this nature. Given this consideration and the fact that material related to those gender offfences that feature on the consolidated indictment has long been disclosed to the Defence, we are of the opinion that the amendment sought is not a novelty that should necessitate fresh investigations as the defence contends. This is only logical because granting it would neither occasion an “undue delay” of the trial of the accused, nor a breach of the statutory rights of the accused as provided for under the provisions of Article 17(4)(a) of the Statute and also because it would not consequently as well, either place the prosecution in an unduly advantageous 276 part ii position to the detriment of the defence, nor would it violate the principle of “equality of arms.” 53. In the particular context of this case, we accept the Prosecution’s argument that this application to amend, for the reasons that the offfences sought to be added were disclosed to the accused and the Defence promptly, fulfĳils the criterion of timeliness having been fĳiled even before the trial proceedings take offf although we know that some applications for amendments could, and have in fact been accepted, at the depth of the trial for considerations based on the overall interest of justice. 54. In this regard, and to underscore the fulfĳillment of the criterion of timeliness, an examination of some municipal decisions which are in line with the philosophy of the evolving jurisprudence in international criminal justice as far as the amendment of charges is concerned and at what stage such applications could be entertained, are quite instructive and illuminating. 55. In the case of AYANSHINA VS. POLICE (1951), 12 WACA 260, the then West African Court of Appeal held that it was permissible to add a fresh count after a submission had been made that there was no case to answer on the original charge and before a ruling in favour of the submission had been given. In another case, R. V KANO & ARISAH (1951) 20 NLR, 32, a decision of the Supreme Court of Nigeria which was upheld, still by the then West African Court of Appeal, it was held permissible to amend a charge after the fĳinal addresses and before judgment was delivered provided, as the Court observed, the “alteration could be made at that stage without injustice to the accused.” Indeed this decision is very reflective of the provisions of Section 148(1) of the Criminal Procedure Act of Sierra Leone which provides in efffect that such applications for amendments of charges ‘unless having regard to the merits of the case, the requested amendments cannot be made without injustice.” 56. It might be difffĳicult today to accept the applicability of the scope of these decisions in International Criminal Tribunals but they serve to emphasise the variables of the concept of timeliness in introducing an amendment and the ideal timeliness and promptitude that characterized the Prosecution’s action in this matter, and to underscore the flexibility of the exercise of the judicial discretion in granting or refusing a motion to amend while emphasising that the same essential ingredients would necessarily include an examination on a case to case basis and the respect at all times, for the overall interests of justice. 57. In light of the above, we would like in our reasoning in this matter, to refer to the case of THE PROSECUTOR VS ALFRED MUSEMA, ICTR-96-13-T, 6 May 1999, where, like in the instant case, the application to amend consisted of adding only one count and to expand on the facts in the existing indictment. In the Musema interlocutory decisions – trial chamber 277 case, the amendment was granted on the grounds that it was a mere technicality which the Trial Chamber considered would not, if granted, be prejudicial to the statutory rights of the Accused. 58. We are therefore of the opinion that the Prosecution has satisfĳied these criteria. We accordingly allow the Prosecution’s motion to amend the Consolidated Indictment and order as follows: (i) That the inclusion in the Consolidated Indictment of a new count 8 of “Other Inhumane Act, a crime against humanity, punishable under Article 2.i of the Statute,” as well as the other amendments requested by the Prosecution, is hereby granted in the form contained in the Proposed Amended Indictment fĳiled as Annex 1 to the Motion on 9 February 2004; (ii) That these amendments shall go forward in compliance with the provisions of Rules 50(A) and (B)(i) of the Rules. Judge Bankole Thompson appends a separate and dissenting opinion to the Decision of the Trial Chamber. Done at Freetown this 6th day of May 2004

THE TRIAL CHAMBER

Before: Judge Bankole Thompson, Presiding Judge Judge Benjamin Mutanga Itoe Judge Pierre Boutet Registrar: Robin Vincent Date: 6 May 2004 PROSECUTOR Against Alex Tamba Brima Brima Bazzy Kamara Santigie Borbor Kanu (Case No.SCSL-04-16-PT)

DISSENTING OPINION OF JUDGE BANKOLE THOMPSON, PRESIDING JUDGE OF THE TRIAL CHAMBER ON PROSECUTION’S MOTION FOR LEAVE TO AMEND INDICTMENT AGAINST ACCUSED ALEX TAMBA BRIMA, BRIMA BAZZY KAMARA AND SANTIGIE BORBOR KANU

Office of the Prosecutor: Defence Counsel for Alex Tamba Brima: Luc Côté Terence Terry Robert Petit Abdul Tejan-Cole Defence Counsel for Brima Bazzy Kamara: Ken Fleming Defence Counsel for Santigie Borbor Kanu: Geert-Jan Alexander Knoops 280 part ii

DISSENTING OPINION OF JUDGE BANKOLE THOMPSON

INTRODUCTION 1. My learned brothers, his Honour Judge Benjamin Mutanga Itoe, and his Honour Judge Pierre Boutet have, by a majority, decided to grant leave to the prosecution to amend the Consolidated Indictment against Accused Issa Hassan Sesay, Morris Kallon, and Augustine Gbao. Unquestionably, this Decision was reached after very careful and constructive deliberations on their part. Despite their learned and erudite analyses of the issues germane to such an application, I respectfully disagree with their Decision, from four key perspectives, to wit, the philosophical, jurisprudential, pragmatic and the interests of justice to the extent to which they form part of the doctrinal foundations of judicial reasoning as the major tool available to judges in the judicial process. Hence, this Dissenting Opinion. 2. Let me begin by observing that this Motion confronts the Special Court with the delicate task faced by all International Criminal Tribunals of balancing “the prosecutor’s obligations to prosecute the most serious international crimes which might require accommodating changes in prosecutorial strategy as well as amendments to indictments as a result of discovering new evidence, while guaranteeing the fairness of the trial proceedings and upholding the rights of the accused.”1 Predicated upon this premise as to the nature of the Court’s task as presented by this Motion, it cannot be denied that in determining whether to grant an amendment of an indictment that has been approved the right of the accused person to a fair and expeditious trial and the overall interests of justice become issues of paramount consideration in the equation. 3. With this key observation, let me respectfully indicate that the majority Decision fails to pay due regard or attach primacy to the right of the Accused persons herein to a fair and expeditious trial, for reasons I will articulate in the following paragraphs of this Opinion. But before doing so, let me say that I agree with and adopt in extenso, the characterisation of the parties’ written and oral submissions in respect of this Motion as recorded and reflected in the majority Decision of my learned brothers Judge Boutet and Judge Itoe.

PHILOSOPHICAL AND JURISPRUDENTIAL PERSPECTIVES 4. I have just asserted that my disagreement with the majority Decision is from four perspectives: philosophical, jurisprudential, pragmatic and the interests of justice. Let me now address the philosophical and jurisprudential together and say straightaway that from this dual perspective, it seems to me that the major

1 See Archbold International Criminal Courts Practice, Procedure and Evidence, London: Sweet and Maxwell, 2003 paras. 6–66. interlocutory decisions – trial chamber 281 issue to bea ddressed, preliminarily, is that of the relevant body of jurisprudence to be applied to applications of this nature. Where it is determined that such applicable body of jurisprudence is an issue free from doubt, then there can be no judicial disputation as to its applicability to the matter in hand. However, where the issue of the relevant body of jurisprudence is one fraught with controversy, then nothing must be judicially taken for granted. 5. The issue must then become one of very careful judicial inquiry as to what sources of law should provide guidance. It cannot be asserted with any degree of accuracy that there is, as at yet, at the level of international criminal adjudication, a settled and authoritative corpus of jurisprudence applicable in granting amendments to indictments. To seek to apply whatever disparate, incoherent and inconclusive general principles that exist in the form of an evolving jurisprudence without constructive adaptation is a logical mistake that may well make us, as judges, victims of the fallacy of slippery precedents. 6. It does not take much legal research efffort to discover that there are only a few general principles of law deducible, at this point in time, from the existing evolving international criminal jurisprudence on the subject of amendment of indictments. Understandably, case-law authorities are sparse. For the purpose of this Opinion, a few key samples of such propositions will sufffĳice. These include: (i) The question as to whether an amendment of an indictment shall be granted is within the discretion of the tribunal; (ii) “no doubt, size can be taken into account in considering whether any injustice would be caused to the accused: but provided other relevant requirements are met, a court would be slow to deny the prosecution a right to amend on that ground only”; 2 (iii) “In general, an amendment to a confĳirmed existing indictment is sought for the following reasons: to add new charges to a confĳirmed Indictment, to expand and elaborate upon factual allegations adduced in support of existing con- fĳirmed counts or to make minor changes to the indictment”; 3 (iv) “The fundamental issue in relation to granting leave to amend an indictment is whether the amendment will prejudice the Accused unfairly.” 4 7. Sufffĳice it further to say that all we have, at this stage, as working jurisprudential tools to determine the merits or otherwise of applications for amendment of

2 Prosecutor v. Kovacevic, Case No: IT-97-24-AR73, ICTY Decision Stating Reasons for Appeals Chamber Order of May 29, 1998, July 2, 1998, paras. 20-37; also noted in Archbold, supra note 1. 3 Prosecutor v. Niyitegeka, Case No. ICTR-96-14-T, ICTR Decision on Prosecutor’s Request for Leave to fĳile an Amended Indictment, June 21, 2000, para. 33. 4 Prosecutor v. Mile Mrksic, Miroslav Radic, Veselin Sljivancanin, Case No. IT-95-13/1-PT, ICTY Decision On Form of Consolidated Amended Indictment And On Prosecution Application to Amend, 23 January, 2004, para. 61. 282 part ii indictments in the international criminal law sphere are the respective Rules of ICTY, ICTR, and this Court, Under the ICTY and ICTR systems, the relevant guide is Rule 50(C); under our system, it is Rule 50(A). In their present state, these rules are still untested, and undoubtedly since the ink is hardly dry on them, they have not yet been the subject of a consistent, coherent, and settled body of principles. However, the Court must still proceed to a determination of the merits of applications of this nature. One plausible approach is for this Court, through the tech- nique of judicial development of the law, to interpret Rule 50(A) in the light of the autochthonous and unique juridical features and other related factors of this tribunal in the peculiar context of its own specifĳic needs, mandates and realities as an adjudicating body of alleged offfences of not only grave international import but also of crimes of equally grave dimensions under certain laws of Sierra Leone. Such an approach seems justifĳied by the consideration that in era of international criminal adversarial litigation dominated by a tremendous accretion of prosecutorial discretions, judicial guarantees and safeguards of the rights of the accused must be given paramountcy by judges sworn to administer justice faithfully, conscientiously and impartially. 8. Predicated on this analysis, it seems to me that there is no judicial warrant for any evolving international jurisprudence on the subject of the amendment of indictments to be strictly patterned after general principles imported from the national law systems (where such principles as adumbrated by the courts lean heavily in favorem procuratorem), without very careful and constructive adaptation to the diffferent prevailing legal culture in the international criminal law domain. I emphasize this point because to my mind the almost unregulated flexible approach to the question of amendment of the indictments implicit in the evolving international jurisprudence is more akin to, for example, the English and Sierra Leone national law approach to the issue. In those two jurisdictions, the general principle is as follows: “Where, before trial or at any stage of a trial, it appears to the court that the indictment is defective, the court shall make such order for the amendment of the indictment as the court thinks necessary to meet the circumstances of the case, unless having regard to the merits of the case, the required amendments cannot be made without injustice.”5 9. What kind of constructive adaptation is, therefore, necessary in respect of imported general principles from national law systems on the subject of amendment of indictments? Such a process should begin with recognition, by way of methodology, of the variance in socio-legal norms and realities prevailing in the two legal

5 See Archbold. Criminal Pleading, Evidence and Practice, London: Sweet & Maxwell, 2003 paras. 1-149. See also the Sierra Leone Criminal Procedure Act No. 32 of 1965, Section 148(1). interlocutory decisions – trial chamber 283 domains. It may be predicated upon a new doctrine, namely, that where an indictment alleging the commission of grave crimes against international law has been approved, there should be a presumption against amendment unless the circumstances of the case otherwise dictate. In a less complex sense, it may be contended that such methodology is dictated, as this Chamber noted in a diffferent context, by “logical necessity, common sense and due regard to the practical realities.”6 In essence, the Special Court must design its own special principles to reflect its own special juridical character. This is the rationale behind its founding instruments. This reasoning, therefore, becomes a useful starting-point, for the purposes of this Opinion, for a discussion of the factors based on judicial pragmatism compelling my divergence from the judicial pathway taken by my learned brothers Judges Itoe and Boutet.

PRAGAMATIC PERSPECTIVES 10. To my mind, the question whether to grant an amendment to an indictment or not within the peculiar context of the seemingly overarching restricted mandate the Special Court for Sierra Leone, as an international criminal tribunal, and the general principles relating thereto cannot, objectively, be considered in isolation from certain pragmatic influences, (which I prefer to characterise as secondary factors) ideally not in consonance with judicial orthodoxy, dictated by the peculiarities and specifĳications of the Court, namely: its history, its uniqueness, its statutory mandate, its heavily-constricted judicial life-span, the regime of budgetary and fĳiscal constraints to which it is subjected, its completion strategy, its sensitivity to the pressures for institutional accountability and transparency on its part vis-à-vis the international community and the population of Sierra Leone, and its functional legitimacy and credibility. These are imponderable variables that cannot be completely ignored, or discounted in working out the fĳinal judicial equation of whether or not to grant the amendments sought. Cumulatively, they seem to militate against any further delay in starting the trials.

INTERESTS OF JUSTICE PERSPECTIVE 11. I also dissent from my learned colleagues’ Decision for these additional reasons. First, that of the protracted interval of eight (8) months between the Prosecutor’s discovery of the evidence alleged to be in support of the proposed new count 8 of Other Inhumane Acts (forced marriage) and the fĳiling of the Motion for amendment. On this issue, it is worth noting, by way of persuasive

6 The Prosecution v. Issa Hassan Sesay (Case No. SCSL-2003-05-PT), Decision and Order on Defence Preliminary Motion for Defects In the Form of the Indictment, 13 October 2003 at para. 9. 284 part ii value, the observation of the English Court of Appeal in R. v. Johal and Ram7, to the efffect that: “The longer the interval between arraignment and amendment, the more likely it is that injustice will be caused and in every case in which amendment is sought, it is essential to consider with great care whether the accused person will be prejudiced thereby.” 12. This evidence was available to the Prosecution in June 2003; it did not apply to have the new charge incorporated in the Indictment until February 2004. In my view, this shows the following: (i) lack of due professional diligence on the part of the Prosecution despite attempts to explain this away by claims of time-consumption in evaluating the evidence; (ii) a lapse in professional sensitivity to the rights of the Accused; (iii) that granting the amendment is very likely to occasion undue delay in giving efffect to the right of the Accused persons, which concept is always a key function of the efffĳicaciousness or otherwise of the right of the Accused to a fair and expeditious trial statutorily guaranteed under Article 17(2)(c) of the Court’s Statute; (iv) granting the amendment sought, in the face of the eight (8) months intervening period of time between the discovery or availability of the evidence and the fĳiling of the application for amendment of the indictment, amounts to a clear infringement of Article 17(4)(a) of the Court’s Statute which enshrines the right of an accused to be informed promptly and in detail of the charges against him. 13. It is also of signifĳicance that apart from the prejudicial efffect of granting amendments sought on the right of the Accused to a fair and expeditious trial as articulated in paragraph 12 above, there is a great likelihood of some adverse efffects on, for example, victims and witnesses for both prosecution and defence. One such efffect is the agony and trauma of having to wait much longer to testify and to see this allegedly unhappy episode in their lives given a closure.

DISPOSITION 14. For the foregoing several considerations and reasons, I am convinced that if there were a deserving contemporary instance to which I would unhesitatingly apply the maxim – Justice Delayed is Justice Denied – this would be it. Hence, my respectful dissent from the majority position.

7 56 Cr. App. R. 348. interlocutory decisions – trial chamber 285

15. Of course, I have no judicial reservations about amendments of an editorial nature. My dissent relates only to amendments of substance. I therefore deny, and accordingly dismiss the Motion to the extent that it seeks the incorporation of a new count in the Consolidated Indictment ordered pursuant to the Joinder Decision of this Court. Done at Freetown this 6th day of May 2004.

THE TRIAL CHAMBER

Before: Judge Bankole Thompson, Presiding Judge Judge Benjamin Mutanga Itoe Judge Pierre Boutet Registrar: Robin Vincent Date: 11 May 2004 THE PROSECUTOR Against Alex Tamba Brima Brima Bazzy Kamara Santigie Borbor Kanu (Case No.SCSL-04-16-PT)

DECISION ON THE PROSECUTION MOTION FOR CONCURRENT HEARING OF EVIDENCE COMMON TO CASES SCSL-2004-15-PT AND SCSL-2004-16-PT

Office of the Prosecutor: Defence Counsel for Alex Tamba Brima: Mr. Luc Côté Mr. Terence Terry Mr. Robert Petit Mr. Paul Flynn Defence Counsel for Brima Bazzy Kamara: Mr. Abdul Tejan-Cole Mr. Ken Fleming QC Ms. Leslie Taylor Ms. Boi-Tia Stevens Defence Counsel for Santigie Borbor Kanu: Mr. Christopher Santora Mr. Geert-Jan Alexander Knoops Ms. Sharan Parmar 288 part ii

The SPECIAL COURT FOR SIERRA LEONE (“Court”); COMPOSED OF, Judge Bankole Thompson, Presiding Judge, Judge Benjamin Mutanga Itoe and Judge Pierre Boutet; BEING SEIZED of the Prosecution’s Motion For Concurrent Hearing of Evidence Common to Cases SCSL-2004-15-PT And SCSL-2004-16-PT (“Motion”) fĳiled by the Offfĳice of the Prosecutor (“Prosecution”) on 30 April 2004; RECALLING the Court’s Decision and Order on Prosecution Motions for Joinder dated 27 January 2004 in respect of Accused Issa Hassan Sesay, Alex Tamba Brima, Morris Kallon, Augustine Gbao, Brima Bazzy Kamara and Santigie Borbor Kanu (“Joinder Decision”) in which it ordered the joint trial of Issa Hassan Sesay, Morris Kallon and Augustine Gbao of the RUF and a separate joint trial of Alex Tamba Brima, Brima Bazzy Kamara and Santigie Borbor Kanu of the AFRC; RECALLING ALSO the Court’s other Decision And Order On Prosecution Motions For Joinder dated 27 January 2004 in respect of Accused Sam Hinga Norman, Moinina Fofana and Allieu Kondewa in which it ordered the joint trial of the three (3) Accused Sam Hinga Norman, Moinina Fofana, and Allieu Kondewa; NOTING THAT the Motion specifĳically seeks an order that “one hearing be held where evidence common to both the case of Prosecutor v. Sesay, Kallon and Gbao (SCSL-2004-15-PT) (“RUF Case”) and the case of Prosecutor v. Brima, Kamara and Kanu (SCSL-2004-16-PT) (“AFRC Case”) will be presented concurrently”; NOTING FURTHER that the Court, in its aforementioned Joinder Decision, did rule in favour of the concept of joinder but ruled against a single joint trial of Accused Issa Hassan Sesay, Alex Tamba Brima, Morris Kallon, Augustine Gbao, Brima Bazzy Kamara, and Santigie Borbor Kanu, and ordered separate joint trials of the RUF and AFRC factions; CONSIDERING the Order for Expedited Filing of response and reply of 30 April 2004; CONSIDERING that Counsel for Accused Alex Tamba Brima did not fĳile any response to the Motion; CONSIDERING the Response fĳiled by Counsel for Accused Santigie Borbor Kanu on 4 May 2004 (“Kanu Response”); CONSIDERING the Response fĳiled by Counsel for Accused Brima Bazzy Kamara on 6 May 2004 (“Kamara Response”); CONSIDERING ALSO the Reply to the Kanu Response fĳiled by the Prosecution on 5 May 2004; interlocutory decisions – trial chamber 289

CONSIDERING ALSO the Reply to the Kamara Response fĳiled by the Prosecution on 7 May 2004; MINDFUL of the provisions of Rule 48(C) of the Rules of Procedure and Evidence (“Rules”); PRE-EMINENTLY RECOGNISING that the Motion calls upon the Court to implement what is unquestionably an innovative procedure for, allegedly, expediting the Court’s adjudicating process in the execution of its mandate in the light of limitations and constraints imposed by its politically-dictated judicial life-span, it is signifĳicant to emphasise that the adoption of any procedural innovation within the adversarial framework of the Court must be carefully evaluated against the paramount interest of the rights of the Accused to a fair and expeditious trial, and the Court’s capability to deliver high quality justice.

NOTING THE SUBMISSIONS OF THE PARTIES:

A. The Prosecution Motion

1. In its Motion, the Prosecution requests the Trial Chamber to order pursuant to Rule 48(C) of the Rules a concurrent hearing of witnesses common to both the RUF Case and AFRC Case on the basis that all Accused therein were separately indicted and subsequently joined in two separate trials and are all accused of crimes committed in the course of the same transaction. 2. The Prosecution submits that the concurrent hearing of evidence common to these two cases will promote the right of each of the six Accused thereof to a fair and expeditious trial and advance judicial economy, consistency in jurisprudence and the credibility of the judicial process.1 3. It contends further that if the same Judges were to assess twice the credibility of the testimony of common witnesses, if rendered separately in each of the two separate trials, their second assessment of such witnesses might appear to be influenced by the fĳirst assessment. In addition, the Prosecution submits that in the case of the establishment of a second Trial Chamber, with a diffferent bench of Judges to sit on one of the trials, these Judges will hence hear essentially the same evidence as the fĳirst, but may nevertheless render contradictory or inconsistent decisions regarding the credibility and weight of the same evidence adduced by the same common witnesses in the other trial.2

1 Motion, para. 13. 2 Id., para. 22. 290 part ii

4. Continuing, the Prosecution argues that if a concurrent hearing of the testimony of common witnesses is granted, the Trial Chamber will avoid the possibility of having witnesses appearing in one trial but, due to security related and other reasons, then becoming unable or unwilling to appear in the subsequent trial, and also reduce the costs, logistical arrangements and security risks for such witnesses and substantially minimise the overall length of the trials.3 5. Consistent with its oral submissions during the Status Conference held in this case on 8 March 2004, the Prosecution reiterates that as many as 56% of the current total number of 267 witnesses it intends to call in each trial are common to both the RUF and AFRC Cases. On the assumption that the current number of witnesses will remain the same, the Prosecution hence estimates that about 150 witnesses will then be called twice to testify.4 6. The Prosecution emphasises that the measures requested in the Motion do not, implicitly or indirectly, entail the holding of a joint trial of all the Accused. More specifĳically, the Prosecution submits that the testimonies to be given by these common witnesses will relate to allegations pertaining to all Accused in both RUF and AFRC Cases but, however, will not directly implicate any of the individual Accused persons in the commission of the crimes, the contents of such testimonies being possibly characterised as crime-base evidence only aiming at demonstrating the widespread and/or systematic nature of certain acts. Any evidence which goes to prove the criminal responsibility of the Accused individuals, according to the Prosecution, will be presented separately during the course of the two separate trials. In addition, the Prosecution indicates that the Defence will be always entitled to seek severance of the testimony of certain common witnesses in case it foresees either potential mutual recriminations or a conflict of defence strategies.5

B. The Kanu Response

7. In its Response, the Kanu Defence requests the Trial Chamber to dismiss the Motion essentially on the basis that it infringes the object and purpose of the Joinder Decision which found, according to the Defence, the spectre of a potential conflict in defence strategies and the consequential possibility of mutual recriminations derogating from the rights of each accused in the context of separate trials. Granting the Motion, in its view, will essentially have the indirect result of a joinder of the RUF Case and AFRC Case in a single trial.6

3 Id., para. 23. 4 Id., para. 15. 5 Id., paras. 16–17 and 19–21. 6 Kanu Response, paras. 3–5 and 8. interlocutory decisions – trial chamber 291

8. The Defence further contends that the argument referred to in the Joinder Decision does not apply solely to joint trials and also forms parts of the Defence strategy, rather than only to the prosecutorial strategy, regardless of whether the evidence is limited to crime-base witnesses. Specifĳically, the Defence asserts that a severance of the hearing of a particular witness, on the one hand, and the concurrent presentation of concurrent evidence, on the other, are judicially not inter- changeable. And so, the Defence contends, the Prosecution’s suggestion provides no sufffĳicient safeguards against the prejudice to the rights of the Accused.7 9. In addition, the Defence argues that the concurrent hearing of such common witnesses would infringe the principle of individual criminal responsibility due to the risk that no clear distinction is made between the purported individual criminal responsibilities of each accused within each group. Indeed, concludes the Defence, even if the concurrent hearing would only relate to crime based elements, there is a possibility it might relate to the issue of collective responsibility.8

C. The Kamara Response

10. The Response to the Motion by the Kamara Defence was fĳiled on 6 May 2004, one day after the expedited time limit set forth in the Order for Expedited Filing. Counsel seeks therefore leave for such late fĳiling on several grounds, especially the diffference in time zone between Freetown and Australia, where he resides, as well as the contemporary receipt of several documents from the Prosecution that he considered important for preparation of his Response to the Motion.9 11. In the event of leave being granted, the Defence arguments in response to the Motion substantially allege an attempt by the Prosecution to join the RUF Case and the AFRC Case as one joint trial, an issue already disposed of by the Trial Chamber in its Joinder Decision and, further, in the subsequent denial of leave requested by the Prosecution to appeal such Decision.10

D. The Prosecution’s Replies

12. Despite the fact that the Order for Expedited Filing provided for the Prosecution to fĳile its reply in a consolidated form, the Prosecution has replied to the submissions of the Defence for the Accused Kanu and Kamara in two specifĳic and separate replies.

7 Id., paras. 6–7. 8 Id., para. 9. 9 Kamara Response, paras. 1–12. 10 Id., para. 13. 292 part ii

13. The Prosecution Reply to the Kanu Response was fĳiled before the prescribed time limits for Counsel for the other Accused to respond to the Motion.

The Reply to the Kanu Response 14. In its Reply to the Kanu Response, the Prosecution reafffĳirms that it is in the overall interest of justice and in the best interest of the Accused to grant the Motion thereby promoting the expeditious nature of the proceedings, and essentially reiterates its arguments contained in the Motion on the crime-base nature of the concurrent common evidence hearing in rebuttal of the submissions made by the Defence in its Response. 15. In particular, the Prosecution contests the Defence assertion that the concurrent hearing of common evidence sought in the RUF and AFRC Cases could be afffected by the risk of potential recriminations and re-asserts the possibility for the Defence to properly apply for severance of particular and specifĳic common witnesses if need arises. Moreover, the Prosecution contends, the risk of possible conflicts in defence strategies is indeed mitigated by the very nature of crime-base evidence of such witnesses, without direct implication of each of the Accused persons.11 16. In addition, the Prosecution denies that the granting of the Motion will result in a joinder of the trials contrary to the Joinder Decision, and restates that in case of a joint trial all the evidence will be presented currently for all the accused joined therein, while the Motion only seeks concurrent hearing of about 56% of its witnesses, and merely limited to crime-base evidence.12 17. Finally, the Prosecution also rejects the specifĳic submission of the Defence that the granting of the Motion will infringe the principle of individual criminal responsibility and attempt to establish some form of collective responsibility. Again, the Prosecution submits that the purpose of the Motion is only to hear concurrently common witnesses on crime-base evidence and that a specifĳic link between such evidence and each Accused would still need to be subsequently proved.13

The Reply to the Kamara Response 18. In its Reply, the Prosecution submits that the Kamara Response should be dismissed as it was fĳiled out of time and does not meet the criteria of exceptional

11 Reply to the Kanu Response, paras. 3–7. 12 Id., para. 7. 13 Id., paras. 8–9. interlocutory decisions – trial chamber 293 circumstances or good cause as required by the established jurisprudence of the Special Court in respect of requests of a similar nature.14 19. The Reply also addresses the submission of the Defence on the merits of the Motion, should the Trial Chamber decide to entertain the Response. 20. In particular, reiterating the same argument advanced in connection with the Reply to the Kanu Response with reference to the fact that the granting of the Motion will substantially result in a joinder of the trials, the Prosecution submits that it merely seeks the concurrent hearing of common witnesses of crime-base evidence and limited to 56% of its witnesses, whereby in case of a joint trial all the evidence will be presented concurrently.15 AND HAVING DELIBERATED THUS:

E. Introduction

21. By way of a preliminary observation, it should be noted that there have occurred as regards the fĳiling of Responses and Replies to this Motion certain procedural irregularities. These relate to compliance with the Order for Expedited Filing, which was issued due to the peremptory nature of the instant Motion and the expedition with which the Chamber intends to dispose of it. First, despite the requirement for the Prosecution to fĳile a consolidated reply to the Defence responses, it has fĳiled separate Replies for the Accused Kanu and Kamara. It also fĳiled the Reply to the Kanu Response prior to the expiration of the prescribed time limit for Responses from Defence Counsel. 22. The Chamber wishes to emphasise that it is pre-eminently the obligation of the adversarial parties to comply with procedural requirements so as to ensure the efffĳiciency of the judicial process. In relation to the fĳiling of the Prosecution Replies, the Chamber is prepared to waive these breaches, and will proceed to consider the merits of the Motion on the assumption that there has been no procedural irregularity in respect thereof. 23. However, secondly, the Chamber notes that the Kamara Response was fĳiled out of time and sought leave to do so as part of the submissions contained therein. Although the document was accepted for fĳiling, the Chamber fĳinds that Counsel for the Accused Kamara has not made out any exceptional circumstances or good cause, and accordingly declines to take further note of the Kamara Response.

14 Reply to the Kamara Response, paras. 3-10. 15 Id., paras. 11-12. 294 part ii

24. This Motion presents this Court with the task of having to wrestle courageously and ingeniously with an issue that calls for a measure of judicial innovation and creativity in addressing its statutory mandate of adjudicating on cases in respect of those persons who, allegedly, bear the greatest responsibility for serious violations of international humanitarian law and certain specifĳied laws of Sierra Leone during the hostilities during the recent conflict. 25. In the Chamber’s judicial estimation, the Motion poses for the Court the challenge of reconciling conceptually and doctrinally, the judicial concern and safeguards for the rights of the Accused persons herein reflected in its Joinder Decision, on the one hand, with the extent to which a tribunal must be prepared to make judicial accommodations to strategies by the Prosecution as to how best and efffectively it can present its case. As always, this is a matter of much legal delicacy and complexity. In a sense, it demands a careful deliberation of the issue as to how a court should respond to legitimate requests from the parties for judicial innovation while ascertaining respect for fairness in the judicial process.

F. Order Requested

26. The Motion herein specifĳically seeks an Order that “one hearing be held where evidence common to both the case of Prosecutor v. Sesay, Kallon, and Gbao (SCSL-2004-15-PT) and the case of Prosecutor v. Brima, Kamara and Kanu (SCSL- 2004-16-PT) will be presented concurrently.” 16

G. Legal Basis of the Motion

27. The Prosecution’s Motion is fĳiled pursuant to Rule 48(C) of the Rules, the provisions of which were recently incorporated into the aforesaid Rules and adopted during the March 2004 Plenary Meeting of the Court. Rule 48(C) is in these terms: “A Trial Chamber may order concurrent hearing of evidence common to the trials of persons separately indicted or joined in separate trials and who are accused of the same or diffferent crimes committed in the course of the same transaction. Such a hearing may be granted with leave of a Trial Chamber pursuant to Rule 73.” According to Rule 73(A): “Subject to Rule 72, either party may move before the Designated Judge or Trial Chamber for appropriate ruling or relief after the initial appearance of the accused. The Designated Judge or the Trial Chamber, or a Judge designated by the Trial

16 Motion, para. 32. Emphasis added. interlocutory decisions – trial chamber 295

Chamber from among its members, shall rule on such motions based solely on the written submissions of the parties, unless it is decided to hear the parties in open court.” 28. Construed together, Rule 48(C) and Rule 73(A) leave open the possibility for this Motion to be determined and disposed of by a Designated Judge pursuant to Rule 28 or “a Judge designated by the Trial Chamber from among its members.” However, ex abundante cautela, this Court will proceed to determine its merit or otherwise as a Trial Chamber.

H. Applicable Principles

29. In ascertaining the applicable principles in respect of motions of this type, it is instructive to note, fĳirstly, that Rule 48(C) does not specify the relevant criteria for granting such motions. However, the Chamber takes the view that the applicable criteria are logically, with necessary adaptations and modifĳications, of the same generic type as those contained in sub-rules (A) and (B) of the aforesaid Rule 48 and Rule 49. We are reinforced in this observation by the fĳinding that, on a plain and literal interpretation of Rule 48(C), there are two (2) conditions that must be fulfĳilled before the Court can properly entertain the application. They are: (i) that the Accused persons in question were either separately indicted or joined in separate trials in respect of the same or diffferent crimes; and (ii) that the crimes alleged must have been committed in the course of the same transaction. Procedurally, the Chamber wishes to observe that it is abundantly clear that the Prosecution is within its rights to fĳile the instant application, having satisfĳied the conditions precedent for such a Motion. 30. Secondly, as a matter of statutory construction, it is clear that Rule 48(C) does not imply or import any notion of automaticity in respect of the Order sought once the Prosecution has satisfĳied the conditions precedent. The Rule confers on the Trial Chamber a discretion in the matter. It is trite law that where a discretion is vested in an authority or a body, such discretion is to be exercised reasonably and judiciously, and, we should add, in the case of an application of such dimension and complexity, ‘with great circumspection’ due to the extraordinary nature of the procedure which is the subject-matter of the application whilst at the same time keeping an open judicial mind to the issue. 31. Furthermore, it is the Chamber’s view that the primary focus of the exercise of a discretion under Rule 48(C) should be on how the extraordinary procedure applied for would impact upon the rights of the Accused in question, and not how it would or would not enhance the Prosecution’s capability in presenting its case 296 part ii in an efffĳicient manner. It is important for the Court to preserve such a focus especially where it has ordered separate joint trials for each category of accused persons. Unless the Court is satisfĳied that the Prosecution has established that the exceptional procedure sought would not impact adversely, or be prejudicial to, the right of the accused to be tried fairly and expeditiously, and that the integrity of the proceedings would not be compromised, the presumption should be against granting the Order.

I. Evaluation of Application’s Merit

32. Having determined the applicable principles, the Chamber now proceeds to a consideration of the merit or otherwise of the application based on the foregoing exposition of the law. 33. In terms of substance and as to their main focus, all of the Prosecution’s submissions can be grouped into two (2) main categories. The fĳirst category is that the Motion will serve the interest of justice in the sense that it will advance judicial economy, consistency in jurisprudence and the credibility of the judicial process. Noting that judicial economy, consistency in jurisprudence and credibility of the judicial process are not universally acknowledged factors of criminal adjudication, the key question for the Chamber is whether the conclusion that the interest of justice will be served by granting the Order sought logically follows from the premise that the Order, if granted, will promote these presumed values of international criminal justice. We think not; nor would an empirical inquiry testing the validity of such a hypothesis convince us otherwise because of all the possible intervening variables that could be at play; for example, the possibility of two accused persons from one group or their counsel becoming suddenly indisposed for a protracted period of time during the common hearing involving both groups. This submission is clearly without merit. Implicit in it are three (3) unproven assumptions: (i) that judicial economy is a necessary function of the accused’s right to a fair trial; (ii) that consistency in jurisprudence is an issue free from juristic controversy; and (iii) that credibility of the judicial process is a well-recognised concept within the province of law and can easily be evaluated. 34. The second category of submissions is that conducting two trials will involve the calling of about one hundred and fĳifty (150) witnesses twice to testify before the Court at two diffferent occasions, with certain adverse consequences. (i) that of contradicting the principle of judicial economy; (ii) unwillingness on the part of many Prosecution witnesses to testify at a subsequent trial because of fears already expressed about testifying; interlocutory decisions – trial chamber 297

(iii) jeopardising the principle of a fair trial and thereby compromising the credibility of the judicial process and the interest of justice because of the appearance that the judges would have already assessed the credibility of the evidence, as the same panel of judges, when evaluating the second hearing; (iv) the possibility of a second Trial Chamber, if established, sitting on the second trial, hearing essentially the same evidence as the fĳirst, but rendering contradictory or inconsistent decisions regarding the credibility of the same evidence addressed by the same witnesses in the fĳirst trial, thereby undermining the credibility of the judicial process and compromising jurisprudential consistency; (v) considerable increase of risk to security of witnesses and undermining of the efffĳiciency of witness protective measures; and (vi) prolongation of stay of Prosecution witnesses in the witness protection programme with overwhelming fĳinancial costs and severe logistical implications for the Victims and Witnesses Unit. 35. As regards the fĳirst submission that implementing the Court’s Joinder Decision will contradict the principle of judicial economy, it is the Chamber’s view that the legal rationalisation about the principle of judicial economy that has come to feature prominently in the evolving jurisprudence of sister international tribunals, to wit, the need to strike a balance between such a value in the context of international criminal adjudication and the right of the accused to a fair trial, has generally been formulated in a manner that attaches greater primacy to judicial economy over the accused’s right to a fair and expeditious trial. As was noted in the Decision of Prosecutor v. Krajisnik, “judicial economy should never outweigh the right of the Accused to a fair trial.”17 In our opinion, a tribunal’s reputation and credibility must be measured not in terms of judicial economy but its capability to deliver superior quality justice fairly and dispassionately, and with reasonable expedition. 36. With respect to the Prosecution’s second contention in category two (ii) above, the Chamber wishes to observe that it is one of the harsh realities of the functioning of the criminal law, as a social control mechanism, that witnesses and victims called to testify as to the commission of crimes of international gravity and dimension will experience some measure of inconvenience and hardship. In the instant situation, such inconvenience and hardship could be reduced by the prosecutorial creativity and foresight shown by the provision of ‘back-up witnesses’

17 Prosecutor v. Krajisnik, IT-00-39 and 40, Decision on Prosecution’s Motion for Judicial Notice of Adjudicated facts and Admission of Written Statements of Witnesses Pursuant to Rule 92bis, 28 February 2003, para. 20. 298 part ii as was stated by learned Counsel for the Prosecution during the Pre-Trial Conferences. Furthermore, the interests of victims and witnesses will remain protected in accordance with Article 16 of the Statute of the Special Court through the Victims and Witnesses Unit and by the judicious use of Rule 92bis of the Rules. 37. Further, an interesting facet of this submission, from the Chamber’s perspective, is that the Accused were separately indicted giving rise to a reasonable presumption that they would be tried separately, the implication being that there would be nine (9) separate trials. If that was not the premise of the Prosecution’s theory of liability at the material time, then the question becomes relevant – Why were they not jointly indicted, based on the facts available to the Prosecution at the material time?18 38. The Prosecution further submits that hearing the same witness twice, in two separate trials, on essentially the same evidence by the same panel of judges will jeopardise the principle of a fair trial in that the appearance that the judges would have already assessed the credibility of the evidence when conducting the second hearing would undermine the credibility of the judicial process and would be contrary to the interest of justice. This submission, in the Chamber’s opinion, is specious and speculative from two perspectives; namely, (i) that the judges have sworn to discharge their judicial functions faithfully, conscientiously, and impartially; (ii) that it is the accepted norm implicit in the Bangalore Principles of Judicial Conduct,19 that professionally trained and qualifĳied judges are able to assess the credibility of witnesses with a remarkable degree of dispas- sionateness as opposed to trial juries. Accordingly, this Court already held that: “Issues before the Special Court are conducted before professional judges, who by virtue of their education and experience are able to ponder independently without prejudice to each and every case which will be brought before them.”20 It may be inquired – Why would they suddenly lose their disciplined focus and objectivity when confronted with separate joint trials? 39. For the same reasons, we hold as untenable the fourth submission alleging probable lack of objectivity on the part of the second Trial Chamber.

18 In any event, this question was the subject of consideration in the Joinder Decision. 19 Adopted by the Judicial Group on Strengthening Judicial Integrity, as revised at the Round Table Meeting of Chief Justices held at the Peace Palace, The Hague, 25–26 November 2002. 20 Prosecutor v. Augustine Gbao, SCSL-2003-09-I, Order on the Urgent Request for Direction on the Time to Respond to and/or an Extension of Time for the Filing of a Response to the Prosecution Motions, 16 May 2003, page 2 per Judge Boutet. See also Prosecutor v. Delacic et al., IT-96-21-T, Decision on the Motion of the Prosecution for the Admissibility of Evidence, 19 January 1998, para. 20 and Prosecutor v. Ntakirutimana et al., ICTR-96-10-I and ICTR-96-17-T, Decision on the Prosecutor’s Motion to Join the Indictments ICTR 96-10-I and ICTR 96-17-T, 22 February 2001, para. 26. interlocutory decisions – trial chamber 299

40. It may be recalled that it was also submitted by the Prosecution that the concurrent presentation of evidence common to both cases (a) does not constitute a conflict of interests, (b) would only apply to Prosecution witnesses and (c) would not directly implicate the Accused individuals in the commission of crimes, but rather, would only relate to acts of others than the Accused individuals. The Chamber’s short response to these kindred submissions is that in the light of the Responses from the Defence, these issues remain highly contentious, based on how the Witness List and the summaries of evidence are interpreted. It is likewise noteworthy, from the Chamber’s viewpoint, that the Prosecution’s submission that risks of possible mutual recriminations or possible conflicts in defence strategies can be dealt with by the application of the doctrine of severance is not convincing from a practical perspective, given all the unknown variables. 41. The Prosecution also submits that hearing the same witnesses twice will involve considerable risk to the witnesses and will not be cost-efffective from the standpoint of the Victims and Witness Unit. The Chamber’s response to this argument will feature in the Concluding Analysis of this Decision. 42. The Chamber’s evaluation of the merits of the Motion thus far leads, com- pellingly, to only one conclusion. It is that the ‘concurrent hearing of evidence’ or ‘common trunk’ order sought by the Prosecution is an attempt, on its part, to re- litigate an issue already decided by the Court. It is trite law that there must be fĳinality to litigation. In this regard, the Prosecution is perilously caught within the web of the common law doctrine of issue estoppel.

J. Concluding Analysis

43. Predicated upon the judicial philosophy of this Court’s legitimate preoccu- pation with the paramount need for protecting the right of each of the Accused herein to be tried fairly and expeditiously according to accepted and recognised standards of justice, utilising tested and well-tried techniques of criminal adjudication, the Chamber fĳinds that in the light of its Joinder Decision in respect of the RUF and AFRC groups, granting the Order sought would amount to approbating and reprobating at the same time. We so fĳind because the thrust of our Joinder Decision was clearly to foreclose the application of any concept, however characterised, that would, in practical terms, create the semblance of the inseparability of the trial of the two groups. Hence we hold, and accordingly rule, that the notion of ‘common trunk’ or ‘concurrent hearing of evidence,’ particularly in light of the amount of evidence sought to be introduced through such a process and in the context of the Chamber’s Joinder Decision, is conceptually irreconcilable with the notion of ‘joint separate trials.’ 300 part ii

44. However, we do observe that our ruling as to the conceptual irreconcilability between a ‘concurrent hearing of evidence’ and ‘joint separate trials,’ in the context of this case, does not, in any way, detract from the theoretical attractiveness of the notion of ‘common trunk hearing.’ In practical terms, all the Chamber wishes to convey is that given its Joinder Decision, it would be imprudent for the Court to become, as it were, an empirical testing-ground of the theory of ‘concurrent hearing of evidence’ where, based on the Chamber’s appreciation of the evolving jurisprudence of sister tribunals, it has not been successfully applied for in any international criminal jurisdiction.21 45. Noting that the thrust of the Prosecution’s argument in support of the Motion rested on three notions, chief among which is judicial economy, the Chamber deems it worthwhile to recall that this Court has constantly been reminded by the Prosecution during various submissions before it and by the Court’s Administration, including the Management Committee, of its limited judicial life-span, fĳiscal and budgetary constraints on its operations, and the need for judicial economy in the conduct of trials. In response, this Chamber can do no better than adopt the words of his Honour Judge David Hunt in the case of Prosecutor v. Slobodan Milosevic.22 In that case, the learned Judge had this to say: “The international community has entrusted the Tribunal with the task of trying persons charged with serious violations of international humanitarian law. It expects the Tribunal to do so in accordance with those rights of the accused to which reference is made in the previous paragraph. If the Tribunal is not given sufffĳicient time and money to do so by the international community, then it should not attempt to try those persons in a way which does not accord with those rights. In my opinion, it is improper to take the Completion Strategy into account in departing from interpretations which had earlier been accepted by the Appeals Chamber where this is at the expense of those rights.” 46. It should be observed here that although we understand and appreciate the intended purpose being pursued by the Prosecution with its Motion, because of its fĳiling at the end of the pre-trial conferences it had the consequence of (unfortunately) delaying the announcements of the dates for the commencement of trials. 47. Finally, this Chamber wishes to observe that, as a sovereign entity within its jurisdictional competence, a court must not recoil from its supreme responsibility of maintaining the integrity of its proceedings both in the interests of the

21 See Prosecutor v. Kovacevic et al., IT-97-24-AR73, Decision on Motion for Joinder of Accused and Concurrent Presentation of Evidence, 14 May 1998 and Prosecutor v. Brdanin, Tadic and Stakic, IT-99-36-PT and IT-99-24-PT, Decision on Prosecution’s Motions for a Joint Hearing, 11 January 2002. 22 Prosecutor v. Slobodan Milosevic, IT-02-54-AR73.4, Dissenting Opinion of Judge David Hunt On Admissibility of Evidence In Chief In The Form of Written Statement, Appeals Chamber, 21 October 2003, para. 21. interlocutory decisions – trial chamber 301

Prosecution and the Defence, and more so in protecting the procedural and substantive due process rights of persons accused of crime until proven guilty. To sacrifĳice those rights in favour of political or economic expediency is tantamount to abdicating its sovereign attributes of independence. Hence, it must be emphasised that the limited judicial life-span of a Court cannot provide justifĳication in law for abridging or curtailing the right of an accused person to a fair trial. BASED ON THE FOREGOING DELIBERATION I, Judge Bankole Thompson, on behalf of the Trial Chamber, pursuant to Rule 48(C), hereby deny the Motion and accordingly dismiss it. Done at Freetown this 11th day of May 2004.

THE TRIAL CHAMBER

Before: Judge Bankole Thompson, Presiding Judge Judge Benjamin Mutanga Itoe Judge Pierre Boutet Registrar: Robin Vincent Date: 12 May 2004 PROSECUTOR Against Alex Tamba Brima Brima Bazzy Kamara Santigie Borbor Kanu (Case No.SCSL-04-16-PT)

CONSEQUENTIAL ORDER AND CORRIGENDUM TO THE DECISION ON PROSECUTION REQUEST FOR LEAVE TO AMEND THE INDICTMENT

Office of the Prosecutor: Defence Counsel for Alex Tamba Brima: Luc Côté Terence Terry Robert Petit Karim Khan Defence Counsel for Brima Bazzy Kamara: Ken Fleming QC Defence Counsel for Santigie Borbor Kanu: Geert-Jan Alexander Knoops 304 part ii

THE TRIAL CHAMBER (“Trial Chamber”) of the Special Court for Sierra Leone (“Special Court”) composed of Judge Bankole Thompson, Presiding Judge, Judge Benjamin Mutanga Itoe and Judge Pierre Boutet; CONSIDERING the Decision on Prosecution Request for Leave to Amend the Indictment (“Decision”) of 6 May 2004; CONSIDERING the Corrigendum to Amended Indictment Filed with Prosecution’s Motion for “Request for Leave to Amend the Indictment” (“Corrigendum”) of 10 February 2004; CONSIDERING that paragraph 681 of the Proposed Amended Indictment fĳiled by the Offfĳice of the Prosecutor (“Prosecution”) with the Request for Leave to Amend the Indictment of 9 February 2004 should have incorporated these corrections; DECIDES AND ORDERS that the fĳirst order of the Decision shall read in the following manner: (i) That the inclusion in the Consolidated Indictment of a new count 8 of “Other Inhumane Act, a crime against humanity, punishable under Article 2.i of the Statute,” as well as the other amendments requested by the Prosecution, is hereby granted in the form contained in the Proposed Amended Indictment fĳiled as Annex 1 to the Motion on 9 February 2004; shall now read: (i) That the inclusion in the Consolidated Indictment of a new count 8 of “Other Inhumane Act, a crime against humanity, punishable under Article 2.i of the Statute,” as well as the other amendments requested by the Prosecution, is hereby granted in the form contained in the Proposed Amended Indictment fĳiled as Annex 1 to the Motion on 9 February 2004 and as corrected by the Corrigendum to Amend Indictment Filed with Prosecution’s Motion for “Request for Leave to Amend the Indictment” of 10 February 2004; FURTHER ORDERS that the Prosecution shall accordingly fĳile the Amended Consolidated Indictment by Thursday, 13 May 2004, before 4:00 p.m.; INSTRUCTS the Registrar, pursuant to the provisions of Rule 52 of the Rules of Procedure and Evidence, to prepare a certifĳied copy of the Amended Consolidated Indictment and to serve it to the Accused Alex Tamba Brima, Brima Bazzy Kamara and Santigie Borbor Kanu.

1 The Trial Chamber notes that the Corrigendum itself contains an erroneous reference to paragraph 71 of the Proposed Amended Indictment. However, in the interest of justice, the Trial Chamber will not take into consideration this erroneous reference. THE TRIAL CHAMBER

Before: Judge Bankole Thompson, Presiding Judge Judge Benjamin Mutanga Itoe Judge Pierre Boutet Registrar: Robin Vincent Date: 1 June 2004 PROSECUTOR Against Alex Tamba Brima Brima Bazzy Kamara Santigie Borbor Kanu (Case No.SCSL-04-16-PT)

DECISION ON PROSECUTION APPLICATION FOR LEAVE TO FILE AN INTERLOCUTORY APPEAL AGAINST DECISION ON MOTION FOR CONCURRENT HEARING OF EVIDENCE COMMON TO CASES SCSL-2004- 15-PT AND SCSL-2004-16-PT

THE TRIAL CHAMBER (“Trial Chamber”) of the Special Court for Sierra Leone (“Special Court”), composed of Judge Bankole Thompson, Presiding Judge, Judge Benjamin Mutanga Itoe and Judge Pierre Boutet; NOTING the Decision on the Prosecution Motion for Concurrent Hearing of Evidence Common to Cases SCSL-2004-15-PT and SCSL-2004-16-PT (“Decision”) of 11 May 2004; SEIZED of the Application for Leave to File an Interlocutory Appeal against the Decision on the “Prosecution’s Motion for Concurrent Hearing of Evidence Common to Cases SCSL-2004-15-PT and SCSL-2004-16-PT (“Application”) fĳiled by the Offfĳice of the Prosecutor (“Prosecution”) on 14 May 2004; RECALLING the Court’s Decision and Order on Prosecution Motions for Joinder dated 27 January 2004 in respect of Accused Issa Hassan Sesay, Alex Tamba Brima, Morris Kallon, Augustine Gbao, Brima Bazzy Kamara and Santigie Borbor Kanu (“Joinder Decisions”) in which it ordered the joint trial of Issa Hassan Sesay, Morris Kallon and Augustine Gbao of the RUF (“RUF Case”) and a separate joint trial of Alex Tamba Brima, Brima Bazzy Kamara and Santigie Borbor Kanu of the AFRC (“AFRC Case”); NOTING the Order for Expedited Filing of 17 May 2004; NOTING the Response to the Application fĳiled by Defence Counsel for Alex Tamba Brima on 24 May 2004 (“Brima Response”); NOTING the Response to the Application fĳiled by Defence Counsel for Santigie Borbor Kanu on 20 May 2004 (“Kanu Response”); NOTING that no Response to the Application was fĳiled by the Defence Counsel for Brima Bazzy Kamara; NOTING the Consolidated Reply to the responses fĳiled by the Prosecution on 24 May 2004 (“Consolidated Reply”); NOTING THE SUBMISSIONS OF THE PARTIES:

A. The Prosecution Motion

1. Pursuant to Rule 73(B) of the Rules of Procedure and Evidence (“Rules”), the Prosecution seeks leave to appeal against the Decision of this Chamber denying the Prosecution’s Motion for Concurrent Hearing of Evidence in the Cases RUF and AFRC on the basis of exceptional circumstances and irreparable prejudice. The Prosecution states that if granted leave, it will argue that the Decision contains errors and misconceptions in law by the Trial Chamber.1

1 Application, paras. 3–10. interlocutory decisions – trial chamber 307

2. On the issue of exceptional circumstances, the Prosecution argues that pursuant to the Decision over one hundred and fĳifty witnesses will have now to testify twice in court, in separate trials, to exactly the same facts, and that this will happen in a relatively short period of time and before a court which is located in the country where the violations that such witnesses will be called to give testimony about took place. The Prosecution further contends that all these witnesses, including women and children subjected to sexual abuses and mutilations, will hence re-live their trauma and undergo additional cross-examinations of their experiences.2 3. In addition, the Prosecution submits that the Decision will cause irreparable prejudice to its case. As a result of the hardships and risks involved in testifying before the court, the Prosecution contends that some witnesses will then refuse to appear for the second trial for the purposes of testifying. This, the Prosecution concludes, will cause loss of evidence that will not only entail great detriment to the ascertainment of the truth and the fairness of the judicial process, but, indeed, will also cause irreparable prejudice to the Prosecution’s case.3

B. The Defence Responses

4. In their responses, each of the Defence Counsel submits that the Application should be rejected on the grounds that it does not meet the test provided for in Rule 73(B) of the Rules, namely, exceptional circumstances and irreparable prejudice to the Prosecution’s case.

The Brima Response 5. In its Response, the Defence submits that the Motion should be denied or dismissed on the grounds that the reasons in support are “not only unmeritorious but also totally ill-founded.”4 6. The Defence further submits that despite its agreement with the Prosecution on the applicable legal standard, it does not agree that the several matters alluded to at page 4 paragraphs 13–14 of the Prosecution’s Motion constitute “exceptional circumstances.”5 7. The Defence fĳinally contends that “the totality of the matters relied upon by the Prosecution throughout page 4 of their application for leave to appeal in its

2 Id., paras. 12–14. 3 Id., paras. 15–17. In addition, the Prosecution reafffĳirms its arguments as stated in its Application for Leave to File an Interlocutory Appeal against the Trial Chamber’s Decision of 27 January 2004, 3 February 2004. 4 Interlocutory Part of Response. 5 Id. Part II. 308 part ii attempt to justify the two vital elements of exceptional circumstances and irreparable damage are at best untenable on their two reading and purport.”6

The Kanu Response 8. The Defence herein fĳirst submits that there is no error of law or fact in the Trial Chamber’s Decision warranting leave to appeal.7 9. The Defence also argues that the reasoning of the Trial Chamber in its previous Decision rejecting the Prosecution’s Motion for leave to appeal against the Chamber’s Joinder Decision indirectly applies here.8 10. The Defence further submits that the Prosecution has failed to establish that the outcome of the impugned Decision of the Trial Chamber creates an exceptional circumstance and irreparable damage to the Prosecution,9 and that with respect to the argument as to loss of evidence this pertains to future expectations and does not relate to any fact as was found by the Trial Chamber.10

C. The Consolidated Reply

11. In its Reply, the Prosecution rebuts the Defence assertions that the Application does not satisfy the requirement of exceptional circumstances and irreparable prejudice of Rule 73(B) of the Rules. 12. In particular, the Prosecution reasserts that the exceptional circumstances created by the Chamber’s decision, is the hearing of a large corpus of witnesses twice, and that this will prolong the trials and unnecessarily duplicate the risks and pain sufffered by the witnesses, and that this result will also adversely afffect the right of the Accused to a fair trial, as the expeditious nature of the proceedings against him are part of his right.11 13. The Prosecution further reasserts that the Trial Chamber erred in law when it failed to consider principles extrinsic to the rights of the Accused, such as judicial economy, and it mistakenly interpreted the Motion as requiring the sacrifĳice of the rights of the Accused in favour of economic or political circumstances.12

6 Id. Part II. 7 Kanu Response para. 3. 8 Id., para. 4. 9 Id., para. 7. 10 Id., para. 8. 11 Consolidated Reply, para. 15. 12 Id., para. 8. interlocutory decisions – trial chamber 309

14. In general, the Prosecution’s Consolidated Reply in several respects, reinforces generally and specifĳically its earlier arguments and submissions. HAVING DELIBERATED THE CHAMBER DECIDES AS FOLLOWS:

Introduction 15. This Motion once more confronts the Court with the vexed question of one of the criminal law’s recurring themes, both nationally and internationally, namely, interlocutory appeals.

Order Requested 16. In more specifĳic terms, as anticipated in the section above dedicated to the Prosecution submissions, the present Motion seeks leave of this Trial Chamber to appeal against its Decision on the Prosecution Motion for Concurrent Hearing of Evidence Common to Cases SCSL-2004-15-PT and SCSL-2004-16-PT of 11 May 2004.

Legal Basis For the Motion 17. The Prosecution’s Motion is fĳiled pursuant to Rule 73(B) of the Rules. Rule 73(B) is in these terms: “Decisions rendered on such motions are without interlocutory appeal. However, in exceptional circumstances and to avoid irreparable prejudice to a party, the Trial Chamber may give leave to appeal. Such leave should be sought within 3 days of the decision and shall not operate as a stay of proceedings unless the Trial Chamber so orders.”

Applicable Jurisprudence 18. In its twin seminal Decisions on the subject of interlocutory appeals in the RUF Case and in the AFRC Case13 where the Prosecution sought leave of the Trial Chamber to appeal interlocutorily against its Joinder Decisions in respect of the aforementioned cases, this Chamber took the opportunity to articulate the principles governing applications of this nature. 19. Emphasising that Rule 73(B) of the Rules generally does not confer a right of interlocutory appeal but only grants leave to appeal in exceptional cases, the Chamber opined as follows: “As a general rule, interlocutory decisions are not appealable and consistent with a clear and unambiguous legislative intent, this rule involves a high threshold that

13 Decision on Prosecutor’s Application for Leave to File and Interlocutory Appeal against the Decision on the Prosecution Motions for Joinder, 13 February 2004 (“Decisions of 13 February 2004”); 310 part ii

must be met before this Chamber can exercise its discretion to grant leave to appeal. The two limbs of the test are clearly conjunctive, not disjunctive; in other words, they must both be satisfĳied.” Explaining the rationale behind this Rule, the Court had this to say: “This interpretation is unavoidable, given the fact that the second limb of Rule 73(B) was added by way of an amendment adopted at the August 2003 Plenary. This is underscored by the fact that prior to that amendment no possibility of an interlocutory appeal existed and the amendment was carefully couched in such terms so as only to allow appeals to proceed in very limited and exceptional situations. In efffect, it is a restrictive provision.” In essence, the purport of our Decisions of 13 February 2004 can be put this way: that the overriding legal consideration in respect of an application for leave to fĳile an interlocutory appeal is that the applicant’s case must reach a level of exceptional circumstances and irreparable prejudice. Nothing short of that will sufffĳice having regard to the restrictive nature of Rule 73(B) and the rationale that criminal trials must not be heavily encumbered and consequently unduly delayed by interlocutory appeals. 20. As we noted in those Decisions, our test for granting leave to fĳile interlocutory appeals is more restrictive in comparison with that applied by International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda in the interest of expeditiousness and the peculiar circumstances of this Court’s limited mandate. Based on the foregoing restatement of the applicable principles of law, we now proceed to address the key question for determination that is, whether the Prosecution’s case for leave to fĳile an interlocutory appeal reaches the level of exceptional circumstances and irreparable prejudice. This goes to the merit of the application.

Evaluation of Application’s Merit 21. It is signifĳicant to note that the Prosecution’s case in support of the “exceptional circumstances” prong of the test is predicated upon two averments or assumptions, namely, (i) that over one hundred and fĳifty witnesses will have to testify twice in two separate trials in a relatively short duration to the same facts, and (ii) that of the witnesses re-living trauma during cross-examination. The Chamber fails to see how the fact that one hundred and fĳifty witnesses will have to testify in two separate trials in a relatively short period of time to the exact same facts which constitute the most atrocious violations of international criminal law to which they were victims or witnesses, as alleged by the Prosecution, before a court located in the country where the violations allegedly took place coupled with, as the Prosecution submits, the likelihood of re-traumatization do constitute “exceptional circumstances” for the purposes of Rule 73(B) of the Rules interlocutory decisions – trial chamber 311 especially in the light of the Chamber’s analysis at paragraphs 34–39 of the Decision in question. In what lies the exceptionality, considering the entitlement in law of each accused to a separate trial barring a joinder decision? These contin- gencies may create some inconveniences and hardships but do not, singly or cumulatively, amount to “exceptional circumstances” in the context of Rule 73(B) of the Rules, taking into account the Orders for witnesses’ protective measures14 and the expert services of the Victims and Witnesses Unit of the Court including the psychological counselling component of such services. The claim of “exceptional circumstances” by the Prosecution is legally unsustainable, and therefore fails. 22. Consistent with our Decision of 13 February 2004 on the issue of leave to fĳile an interlocutory appeal, we do not think it necessary or appropriate to examine the merits of the Prosecution’s submissions on “irreparable prejudice,” having found that there has not been a showing of “exceptional circumstances” especially since the test is conjunctive and not disjunctive. DISPOSITION 23. For the foregoing reasons and considerations, the Trial Chamber hereby denies the Application. Done at Freetown this 1st day of June 2004.

14 Prosecutor v. Alex Tamba Brima, SCSL-2003-06-PT, Decision on the Prosecutor’s Motion for Immediate Protective Measures for Witnesses and Victims and for Non-Public Disclosure, 23 May 2003; Prosecutor v. Brima Bazzy Kamara, SCSL-2003-10-PT, Decision on the Prosecutor’s Motion for Immediate Protective Measures for Witnesses and Victims and for Non-Public Disclosure, 23 October 2003; Prosecutor v. Santigie Borbor Kanu, SCSL-2003-12-PT, Decision on the Prosecution Motion for Immediate Protective Measures for Witnesses and Victims, 24 November 2003.

THE TRIAL CHAMBER

Before: Hon. Judge Pierre Boutet, Designated Judge Registrar: Robin Vincent Date: 30 July 2004 PROSECUTOR Against Alex Tamba Brima Brima Bazzy Kamara Santigie Borbor Kanu (Case No.SCSL-04-16-PT)

KANU-DECISION ON MOTIONS FOR EXCLUSION OF PROSECUTION WITNESS STATEMENTS AND STAY ON FILING OF PROSECUTION STATEMENTS

Office of the Prosecutor: Defence Counsel for Alex Tamba Brima: Luc Côté Karim Khan Robert Petit Defence Counsel for Brima Bazzy Kamara: Ken Fleming Defence Counsel for Santigie Borbor Kanu: Geert-Jan Alexander Knoops 314 part ii

I, JUDGE PIERRE BOUTET of the Special Court for Sierra Leone (“Special Court”), sitting as Designated Judge pursuant to Rule 28 of the Rules of Procedure and Evidence (“Rules”); SEIZED of the Motion for Exclusion of Prosecution Witness Statements and Stay of Filing of Prosecution Witness Statements Pursuant to Rule 5 and 66(A)(i) fĳiled on 18 March 2004 (“First Motion”) and of the Additional Motion for the Exclusion of Prosecution Witness Statements and Stay of Filing of Prosecution Witness Statements Pursuant to Rule 5 and 66(A)(i) (“Additional Motion”) fĳiled on 19 March 2004 on behalf Santigie Borbor Kanu (“Accused”);1 NOTING the joint Prosecution Response to Defence Motion for Exclusion of Prosecution Witness Statements and Stay on Filing of Prosecution Witness Statements Pursuant to Rules 5 and 66(A)(i) (“Joint Response”), fĳiled on 26 March 2004 by the Offfĳice of the Prosecution (“Prosecution”) and the Reply thereto fĳiled on 31 March 2004 by the Defence (“Reply”); NOTING the Order to the Prosecution to File Disclosure Materials and Other Materials in Preparation for the Commencement of Trial of 1 April 2004 (“Order to File Disclosure Materials”); COGNISANT of Article 17 of the Statute of the Special Court (“Statute”) and particularly noting Rules 5, 6 and 66 of the Rules; NOW CONSIDERS the matter on the basis of the written briefs of the Parties;

I. Background

20. Rule 66(A) of the Rules (“New Rule 66(A)”) was last amended during the 5th Plenary Meeting of the Judges of the Special Court, held in Freetown between 11 March and 14 March 2004, and it now reads as follows: … the Prosecutor shall: (i) Within 30 days of the initial appearance of an accused, disclose to the Defence copies of the statements of all witnesses whom the Prosecutor intends to call to testify and all evidence to be presented pursuant to Rule 92bis at trial. (ii) Continuously disclose to the Defence copies of the statements of all additional prosecution witnesses whom the Prosecutor intends to call to testify, but not later than 60 days before the date for trial, or as otherwise ordered by a Judge of the Trial Chamber either before or after the commencement of the trial, upon good clause being shown by the Prosecution. Upon good

1 The Motion and the Additional Motion will also be jointly referred herein as “Motions.” interlocutory decisions – trial chamber 315

cause being shown by the Defence, a Judge of the Trial Chamber may order that copies of the statements of additional prosecution witnesses that the Prosecutor does not intend to call be made available to the defence within a prescribed time. 21. The previous applicable provisions of Rule 66(A) of the Rules (“Old Rule 66(A)”) read as follows: … the Prosecutor shall: (i) Within 30 days of the initial appearance of an accused, disclose to the Defence copies of the statements of all witnesses whom the Prosecutor intends to call to testify and all evidence to be presented pursuant to Rule 92bis at trial. Upon good cause being shown, a Judge of the Trial Chamber may order that copies of the statements of additional prosecution witnesses be made available to the defence within a prescribed time.

II. Submissions of the Parties

The First Motion and the Additional Motion 22. Through the fĳiled Motions, the Defence reiterates arguments pursuant to Rule 5 and 66(A)(ii) of the Rules that were raised during the Status Conference held on 8 March 2004 (“Status Conference”). With the First Motion, Defence Counsel seeks the exclusion of several Prosecution witness statements disclosed after the 30 days envisaged by the Old Rule 66 and argues that consequently such witnesses should not be called at trial unless good cause was shown by the Prosecution for their late disclosure.2 2. In the alternative, the Defence requests the Court to order in the interest of justice that the Prosecution not be allowed to fĳile any witness statements as from a date to be set by the Trial Chamber, or to set a date after which disclosure of witness statements should no longer be accepted pursuant to the provisions of Old Rule 66(A)(i) of the Rules.3 3. In its Additional Motion, the Defence reiterated the arguments raised in the First Motion seeking the exclusion of additional witness statements whose disclosure took place subsequent to the fĳiling of the First Motion. In particular, the Defence stresses that several witness statements disclosed after 23 October 2003, had been obtained a considerable time before the Accused’s Initial Appearance on 23 September 2003, and thus questions their late disclosure.4 The Defence

2 First Motion, paras. 6 and 9. 3 Id., para. 10. 4 Additional Motion, para. 2. 316 part ii further avers that some witness statements had been available for more than a year before the Initial Appearance of the Accused and that their fĳiling on 18 March 2004 constitutes a serious infringement of the mandatory disclosure procedure that is envisaged by the Rules.5

The Prosecution’s Joint Response 4. The Prosecution submits that pursuant to its general duty to investigate and disclose evidence as provided in the Rules, the Old Rule 66 should be read as requiring the Prosecution to disclose within the 30 day deadline all witness summaries that it gathered at the stage of approval of an indictment and further to continuously disclose additional evidence subsequently gathered.6 In addition, the Prosecution avers that further evidence obtained during their investigations could require, in some instances, that a particular witness, whose evidence that had been deemed to be of little value earlier in the process, would now be selected as witness for the trial.7 It further submits that evidence of the statutory recognition of the Prosecution’s continuous duty to investigate and disclose is found in Rule 68 of the Rules, which requires the Prosecution to continuously disclose exculpatory evidence to the Defence. In the view of the Prosecution, it would be absurd that the Statute and the Rules would provide for on-going investigations, as envisaged in Rule 68, yet prevent the Prosecution from disclosing and using evidence from on-going investigations, if the Defence motion was to pass scrutiny before the Trial Chamber.8 5. The Prosecution particularly submits that Old Rule 66 places the onus on the Defence to show good cause to obtain disclosure only of additional witness statements whom the Prosecution does not intend to call at trial.9 6. The Prosecution avers that any doubt regarding the interpretation of Rule 66 has now been clarifĳied by the adoption of the New Rule 66 at the 5th Plenary Meeting of the Judges of the Special Court that was held between 11 and 14 March 2004. This new rule sheds light on the interpretation and meaning of the Old Rule 66. 7. Lastly, the Prosecution submits that the Defence has sufffered no prejudice, since all the statements that are the subject of contention by the Defence were disclosed at the Pre-Trial stage of the proceedings, at a time when the trial date had not been set and thus, leaving ample time for the Defence to prepare for trial.10

5 Id., para. 4. 6 Joint Response, para. 6. 7 Id., para. 9. 8 Id., para. 8. 9 Id., para. 13. 10 Id., para. 18. interlocutory decisions – trial chamber 317

The Defence Reply 8. In its Reply, the Defence variously contests the Prosecution’s assertions of its continuous duty to investigate and disclose under the Rules, as well as the Prosecution’s interpretation of Old Rule 66. The Defence also avers that the New Rule 66(A)(i) of the Rules is only applicable to evidence and witness statements disclosed by the Prosecution after 11 March 2004. Thus, it submits that all the statements disclosed by the Prosecution after October 2003 and before 11 March 2004, fall within the ambit of the Old Rule. In addition, the Defence submits that the Motion be disposed of under the Old Rule 66, opining that the retroactive application of New Rule 66 could cause prejudice to the rights of the Accused.11

III. Applicable Law

9. Article 17(4) of the Statute, on the rights of the accused, reads as follows: 4. In the determination of any charge against the accused pursuant to the present Statute, he or she shall be entitled to the following minimum guarantees, in full equality: a. To be informed promptly and in detail in a language which he or she understands of the nature and cause of the charge against him or her; b. To have adequate time and facilities for the preparation of his or her defence and to communicate with counsel of his or her own choosing; c. To be tried without undue delay; … 10. In addition to the provisions of the Old and the New Rule 66(A), other Rules are relevant in connection with the present Motions. Rule 5 of the Rules reads as follows: Where an objection on the ground of non-compliance with the Rules or Regulations is raised by a party at the earliest opportunity, the Trial Chamber or the Designated Judge may grant relief if the non-compliance has caused material prejudice to the objecting party. 11. Lastly, Rule 6(D) of the Rules provides that: An amendment shall, unless otherwise indicated, enter into force immediately. The Registrar shall publish the amendment by appropriate means.

11 Defence Reply, para. 22. 318 part ii

IV. Deliberations

12. The Motions raise issues relating to the interpretation of Old Rule 66(A) and its subsequent amendment into New Rule 66(A) adopted at the 5th Plenary Meeting of the Judges of the Special Court. The Motions are predicated on the contention by the Defence that by disclosing substantial amounts of witness statements on several occasions without showing good cause, the Prosecution has failed to comply with the requirements of the Old Rule 66(A)(i) of the Rules. They further argue that the on-going disclosure by the Prosecution infringes the object and purpose of Old Rule 66(A)(i) as it was prior to the most recent amendment, which aims and purpose is to protect the efffective preparation and participation of the Accused at Trial. 13. What is in issue here is whether or not the aforementioned circumstances warrant the exclusion of the Prosecution witness statements. To arrive at a proper decision, it is essential to determine two issues: a. Whether the Old or the New Rule 66(A) is applicable to the Motions; and b. Whether the Defence will sufffer any prejudice if the disclosed materials were not excluded.

A) Which Rule is Applicable to the Motions? 14. It is worth noting that Old Rule 66(A) was amended for purposes of clarity and better comprehension at the 5th Plenary Meeting of the Judges of the Special Court that was held between 11 and 14 March 2004, as a result of issues raised about its interpretation during the Status Conference held on 8 March 2004. Even though the amended Rule is more specifĳic and clearly provides for continuous disclosure, it was nevertheless already understood prior to these amendments that the previous version of the Rule did impose upon the Prosecution a continuous disclosure obligation. 15. Both Motions where fĳiled shortly after the adoption of the aforementioned amendments, respectively on 18 and 19 March 2004. Rule 6 of the Rules in this respect provides that an amendment of the Rules becomes efffective from the date of its approval.12 Therefore, the New Rule 66 as amended rather than the Old Rule 66 of the Rules became efffective as of 14 March 2004 and was immediately applicable to the Motions pursuant to Rule 6 of the Rules as of that date. 16. It is my considered view that the Trial Chamber Order’s to File Disclosure Materials already addressed in this case the submissions contained in the Motions

12 In addition, the record of that Plenary Meeting reveals that the Acting Principal Defender was present at the discussion on the proposed amendment to Rule 66 of the Rules. interlocutory decisions – trial chamber 319 and is in accordance with the scope and applicability of the provisions of New Rule 66(A).13 The said Order directly refers to the discussions held during the Status Conference regarding compliance with the Old Rule 66(A)(i) and the varying interpretations that the parties had accorded to the Rule. The Order, in particular, recognizes the Trial Chamber’s desire to ensure that the “rights of the Accused are not infringed, but rather are enhanced, by the amendment to Rule 66 of the Rules.”14

B) Will the Defence Sufffer Any Material Prejudice from the Disclosure? 19. In considering whether the Defence will sufffer any material prejudice should their Motion not be granted, in addition to the fĳinding of the Trial Chamber in its Order to File Disclosure Materials referred to above, further relevant jurisprudence from this Court as well as from the International Criminal Tribunal for former Yugoslavia (“ICTR”) and the International Criminal Tribunal for Rwanda (“ICTR”) do provide appropriate guidance on this matter.15

13 For a recent interpretation of the provisions of New Rule 66, see, in addition, Prosecutor v. Norman et al., Case No. SCSL-04-14-T, Decision on Disclosure of Witness Statements and Cross- Examination, 16 July 2004 (“Norman Decision”), paras. 5–6. Para. 5 provides for the following: Rule 66 requires, inter alia, that the Prosecution disclose to the Defence copies of the statements of all witnesses which it intends to call to testify and all evidence to be presented pursuant to Rule 92bis, within 30 days of the initial appearance of the Accused. In addition, the Prosecution is required to continuously disclose to the Defence, the statements of all additional Prosecution witnesses it intends to call, not later than 60 days before the date of trial, or otherwise ordered by the Trial Chamber, upon good cause being shown by the Prosecution. Further, see also Prosecutor v. Sesay et al., Case No., SCSL-04-15-T, Decision on Defence Motion for Disclosure Pursuant to Rules 66 and 68 of the Rules, 9 July 2004, (“Sesay Decision”), paras. 21–22. Para. 21 provides the following: From an ordinary and plain reading of Rule 66(A)(ii) of the Rules, it is clear that it imposes a reciprocal obligation; one on the Prosecution and the other on the Defence. The fĳirst part of the Rule places the onus of showing good cause on the Prosecution, in a case where it intends to call additional witnesses to testify at the trial. […] The second part of the Rule places the burden on the Defence to show good cause why the evidence of witnesses whom the Prosecution does not want to call to testify at trial should be disclosed to the Defence. 14 Order to File Disclosure Materials, p. 3, 6–7. As a result, the Chamber already ordered the Prosecution to fĳile a compliance report of its disclosure to date by 26 April 2004, a witness list of all witnesses it intends to call at trial, and to make any further disclosure to the Defence of any statements in full, with redactions as necessary pursuant to the various decisions for protective measures, that have not yet been disclosed for each witness that appears on the witness list. The Prosecutor fĳiled its compliance report on disclosure on 26 April 2004 which it later amended on 11 May 2004. See Materials Filed Pursuant to Order to the Prosecution to File Disclosure Materials and Other Materials in Preparation for the Commencement of the Trial of 1 April 2004, 26 April 2004, Cover Sheet 2; Updated Compliance Report Filed Pursuant to Undertaking by the Prosecution in Pre-Trial Conference Held on 30 April 2004 (AFRC), 11 May 2004. 15 On the applicability of jurisprudence from the ICTY and ICTR, see Decision and Order on Defence Preliminary Motion on Defects in the Form of the Indictment, 1 April 2004, paras. 19–26. 320 part ii

20. In its Norman Decision, the Trial Chamber of the Special Court held the following with reference to disclosure: “It is of course the role of the Trial Chamber to enforce disclosure obligations in the interest of a fair trial, and to ensure that the rights of the Accused, as provided in Article 17(4)(e) of the Statute, to examine or have examined, the witnesses against him or her, are respected and where the evidence has not been disclosed or is disclosed so late as to prejudice the fairness of the trial, the Trial Chamber will apply appropriate remedies which may include the exclusion of such evidence.”16 21. In the case of Prosecutor v. Bagosora,17 the Trial Chamber of the ICTR held that despite the failure of the Prosecution to strictly comply with its disclosure obligations vis a vis the Defence, it was clearly of the view that the Defence will not be prejudiced in any way since the trial had been postponed and the Defence will consequently have sufffĳicient time to prepare for the trial. 22. Furthermore, in the case of Prosecutor v. Furundzija,18 while the Trial Chamber of the ICTY noted with grave concern and deplored the Prosecution’s failure to comply with its obligation to disclose to the Defence, it did not exclude the Prosecution witness statements,19 but required the Prosecution to strictly comply with its order to provide full disclosure to the Defence by a particular date. 23. In the instant case, the Defence contention that the Prosecution has failed to comply with its disclosure obligations cannot be legally sustained in that, as demonstrated above, the Defence erred in its interpretation of the applicable provisions of Rule 66(A) either as these provisions existed before the amendment or since the new amendments. 24. In addition, I am of the view that the Defence will not be prejudiced in any way as a consequence of the disclosure practice so far undergone by the Prosecution, as the Motions have failed to show how such disclosure could in con- creto prejudice the preparation of it case. All the statements whose disclosure is contested by the Defence in either the First Motion or the Additional Motion were disclosed well within the Pre-Trial stage. Indeed, no trial date has yet been set,

16 Norman Decision, para. 7. See also Prosecutor v. Sesay et al., Case No. SCSL-04-15-T, Ruling on the Oral Application of the Exclusion of Part of the Testimony of Witness TF1-199, 26 July 2004, para. 7; Ruling on Oral Application for the Exclusion of “Additional” Witness Statements for Witness TF1-060, 23 July 2004, para. 10; Ruling on the Oral Application for the Exclusion of Part of the Testimony of Witness TF1-199, 26 July 2004, para. 7. See also Prosecutor v. Furundzija, Case No. IT-95- 17/1, Scheduling Order, 29 April 1998. 17 Prosecutor v. Bagosora, Case N. ICTR-96-7-T, Decision on the Motion by the Defence Counsel for Disclosure, 27 November 1997.(E)(v). 18 Prosecutor v. Furundzija, Case No. IT-95-17/1, Decision on Motion of Defendant Anto Furundzija to Preclude Testimony of Certain Prosecution Witnesses, 29 April 1998. 19 Prosecutor v. Furundzija, Case No. IT-95-17/1, Scheduling Order, 29 April 1998. interlocutory decisions – trial chamber 321 thusfar in this case. Therefore, I fĳind that the Defence has been provided with adequate notice of the case against the Accused and has sufffĳicient time to adequately prepare for trial.20 FOR ALL OF THE ABOVE REASONS, DISMISS the Defence Motions. Done at Freetown this 30th day of July 2004.

20 Similarly, in the Sesay Decision the Trial Chamber found that the Defence in that case had suf- fĳicient time to prepare for the commencement of the trial scheduled for 5 July 2004 although it received redacted disclosure of several witness statements as late as 26 April 2004, which coincide with the date of disclosure for several witness statements for this case. See Sesay Decision, para. 44. See also id., Decision on Defence Motion, 15 July 2004, para. 12.

THE TRIAL CHAMBER

Before: Hon. Judge Pierre Boutet Registrar: Robin Vincent Date: 02 August 2004 PROSECUTOR Against Alex Tamba Brima Brima Bazzy Kamara Santigie Borbor Kanu (Case No.SCSL-04-16-PT)

BRIMA-DECISION ON MOTION FOR EXCLUSION OF PROSECUTION WITNESS STATEMENTS AND STAY OF FILING OF PROSECUTION STATEMENTS

Office of the Prosecutor: Defence Counsel for Alex Tamba Brima: Luc Côté Karim Khan Lesley Taylor Defence Counsel for Brima Bazzy Kamara: Ken Fleming Defence Counsel for Santigie Borbor Kanu: Geert-Jan Alexander Knoops 324 part ii

I, JUDGE PIERRE BOUTET of the Special Court for Sierra Leone (“Special Court”), sitting as Designated Judge pursuant to Rule 28 of the Rules of Procedure and Evidence (“Rules”); SEIZED of the Motion for Exclusion of Prosecution Witness Statements and Stay of Filing of Prosecution Witness Statements Pursuant to Rule 5 and 66(A)(i) (“Motion”), fĳiled on 23 March 2004 by Counsel for the First Accused; NOTING the “Prosecution Response to the Motion (“Response”), fĳiled on 29 March 2004 by the Offfĳice of the Prosecution (“Prosecution”) and the Defence Reply thereto fĳiled on 1 April 2004 (“Reply”); NOTING the amendments to Rule 66(A) adopted at the 5th Plenary Meeting of the Judges of the Special Court that was held between 11 March and 14 March 2004; NOTING the Order to the Prosecution to File Disclosure Materials and Other Materials in Preparation for the Commencement of Trial of 1 April 2004 (“Order to File Disclosure Materials”); NOTING Rules 5, 6 and 66 of the Rules; COGNISANT of Article 17 of the Statute of the Special Court (“Statute”); NOW CONSIDERS the matter on the basis of the written briefs of the Parties;

I. Background

1. Rule 66(A) of the Rules (“New Rule 66(A)”) as last amended at the 5th Plenary Meeting of the Judges of the Special Court, held in Freetown between 11 March and 14 March 2004, now reads as follows: … the Prosecutor shall: (i) Within 30 days of the initial appearance of an accused, disclose to the Defence copies of the statements of all witnesses whom the Prosecutor intends to call to testify and all evidence to be presented pursuant to Rule 92bis at trial. (ii) Continuously disclose to the Defence copies of the statements of all additional prosecution witnesses whom the Prosecutor intends to call to testify, but not later than 60 days before the date for trial, or as otherwise ordered by a Judge of the Trial Chamber either before or after the commencement of the trial, upon good clause being shown by the Prosecution. Upon good cause being shown by the Defence, a Judge of the Trial Chamber may order that copies of the statements of additional prosecution witnesses that the Prosecutor does not intend to call be made available to the defence within a prescribed time. 2. The said Rule 66(A) of the Rules prior to this most recent amendment (“Old Rule 66(A)”) read as follows: interlocutory decisions – trial chamber 325

… the Prosecutor shall: (i) Within 30 days of the initial appearance of an accused, disclose to the Defence copies of the statements of all witnesses whom the Prosecutor intends to call to testify and all evidence to be presented pursuant to Rule 92bis at trial. Upon good cause being shown, a Judge of the Trial Chamber may order that copies of the statements of additional prosecution witnesses be made available to the defence within a prescribed time.

II. Submissions of the Parties

The Motion 3. The Defence submits that by continuously disclosing witness statements to the Defence beyond 30 days after the Initial Appearance of the Accused without fĳirst showing good cause and seeking an order from the court, the Prosecution has breached its obligation to disclose under Old Rule 66(A)(i) of the Rules and should be sanctioned. The Motion is fĳiled pursuant to Rule 5 of the Rules and as a sequel to the legal submissions made by the Defence during the Status Conference of March 8 2004.1 4. Notwithstanding the fact that it is over a year since the Accused made his Initial Appearance on 17 March 2003, the Defence complains that the Prosecution continues to disclose an unceasing volume of witness statements as recently as 18 March 2004 in clear contravention of the provisions of Old Rule 66(A)(i) of the Rules.2 5. While recognizing the statutory right of the Prosecution under Rules 66 and 68 to continue disclosure, the Defence avers that such obligations must be dis- pensed in accordance with the law and the due process of the Special Court, that require the Prosecution to obtain an order from the Court in accordance with Old Rule 66(A)(i) of the Rules permitting it to disclose additional evidentiary material.3 6. Relying on jurisprudence from the International Criminal for the former Yugoslavia (“ICTY”) in Prosecutor v. Furundzija,4 the Defence submits that the

1 Motion, Introduction. 2 Id., para. 4. 3 Id., para. 6. 4 Prosecutor v. Furundzija, Case No. IT-95-17/1, Decision on Motion of Defendant Anto Furundzija to Preclude Testimony of Certain Prosecution Witnesses, 29 April 1998 (“Furundzija Decision”). In that case, the Trial Chamber expressed its “grave concern at the unjustifĳiable failure of the Prosecution to comply with its disclosure obligations” under Rule 66. 326 part ii

Prosecution has failed in its obligation to disclose under the Rules of Procedure and Evidence and should be sanctioned.5 7. The Defence seeks, inter alia, the exclusion from the case fĳile of the Accused of all witness statements fĳiled by the Prosecution after 18 April 2003 and, in the alternative, that the Prosecution be barred from further disclosure except where it shows good cause and pursuant to an order of the Chamber.

The Response 8. The Prosecution submits that the Motion is premised on an erroneous interpretation of the law. The Prosecution admits having disclosed statements to the Defence after 18 April 2003, but submits that these were in accordance with its disclosure obligations under Old Rule 66(A)(i) of the Rules.6 9. The Prosecution also submits that it will be cumbersome and frustrating to the legal process if, for each witness statement taken in the course of investigations, the Prosecution had to go before a Judge to show good cause why the statement should be disclosed.7 In addition, the Prosecution avers that further evidence obtained during their investigations could require, in some instances, that a particular witness, whose evidence that had been deemed to be of little value in the immediate period after approval of the indictment or the initial appearance of an accused, would now be selected as witness for the trial.8 10. The Prosecution does not concur with the Defence’s interpretation of the second prong of Old Rule 66(A)(i) of the Rules and submits that the requirement to show good cause is incumbent on the Defence rather than on the Prosecution. Although it concedes that the second prong is silent on which party bears the onus of showing good cause, a proper understanding of the Rule warrants the interpretation to be construed as placing the burden on the Defence to show good cause why Prosecution witnesses not intended to be called at trial should be disclosed to them.9 11. The Prosecution further submits that the exclusion of witnesses pursuant to the Motion, will be “too extreme a measure” and in violation of with the principle of proportionality. Although the Furundzija Decision, cited in the Motion, expressed grave concerns about the Prosecution’s failure to comply with its disclosure obligations, it did not consequently bar the Prosecution from calling the

5 Id., para. 15. 6 Response, paras. 3 and 6. 7 Id., para. 10. 8 Id., para. 10. 9 Id., para. 12 interlocutory decisions – trial chamber 327 afffected witnesses, but ordered instead the Prosecution to make disclosure by a given deadline. Further, in Prosecutor v. Bagosora,10 the Trial Chamber of the International Criminal Tribunal for Rwanda (“ICTR”) found that although the Prosecution had not met its obligations to disclose, the Defence was not prejudiced because the trial had been postponed and there was sufffĳicient time for the Defence to prepare for the Trial. In the instant case, there is no prejudice sufffered by the Defence as all the contentious statements were disclosed at the pre-trial stage of the proceedings, with a trial date not set, leaving ample time for the Defence to prepare for trial.11 12. Lastly, the Prosecution submits that the issue raised in the Motion regarding the contravention of its disclosure obligations to the Defence, has been rendered moot, as the recent amendments to the Rule 66(A)(i) sets forth a deadline of 60 days before the commencement of trial for disclosure of statements of witnesses the Prosecution intends to call to testify.12

The Reply 13. Although conceding on the amendment of Rule 66 of the Rule at the 5th Plenary Meeting of the Special Court, the Defence reiterates in its Reply the position that the Prosecution has to show good cause in order to continuously disclose to the Defence written statements pursuant to Rule 66 of the Rules.

III. Applicable Law

14. Article 17(4) of the Statute, on the rights of the accused, reads as follows: 4. In the determination of any charge against the accused pursuant to the present Statute, he or she shall be entitled to the following minimum guarantees, in full equality: d. To be informed promptly and in detail in a language which he or she understands of the nature and cause of the charge against him or her; e. To have adequate time and facilities for the preparation of his or her defence and to communicate with counsel of his or her own choosing; f. To be tried without undue delay; …

10 Prosecutor v. Bagosora, Case No. ICTR-96-7-T, Decision on the Motion by the Defence Counsel for Disclosure, 27 November 1997 (“Bagosora Decision”). 11 Response, para. 19 12 Id., para. 20. See also paras. 13-16. 328 part ii

15. In addition to the provisions of the Old and the New Rule 66(A), other Rules are deemed of relevance in connection with the present Motions. Rule 5 of the Rules reads as follows: Where an objection on the ground of non-compliance with the Rules or Regulations is raised by a party at the earliest opportunity, the Trial Chamber or the Designated Judge may grant relief if the non-compliance has caused material prejudice to the objecting party. 16. Lastly, Rule 6(D) of the Rules reads as follows: An amendment shall, unless otherwise indicated, enter into force immediately. The Registrar shall publish the amendment by appropriate means.

IV. Deliberations

12. The Motion raises issues relating to the interpretation of Rule 66(A) as it were prior to its amendment and Rule 66(A) as adopted at the 5th Plenary Meeting of the Judges of the Special Court. I wish to observe that I have already dealt with very similar issues in a recent decision on two motions fĳiled by another Co-Accused in this case, Santigie Kanu.13 Similarly, the Motion is based on the contention by the Defence that by disclosing substantial amounts of witness statements on several occasions without showing good cause, the Prosecution has failed to comply with the requirements of the Old Rule 66(A)(i) of the Rules. 13. As discussed in the Kanu Decision,14 what is in issue here is whether or not the aforementioned circumstances warrant the exclusion of these Prosecution witness statements. To arrive at a proper decision on this issue, it is essential to determine: c. Whether the Old or the New Rule 66(A) is applicable to the Motions; and d. Whether the Defence will sufffer any prejudice if the disclosed materials were not excluded. Due to its close similarity of the arguments, I consider that the discussion herein following should reiterate the fĳindings held in the Kanu Decision.15

A) Which Rule is Applicable to the Motions? 14. Old Rule 66(A) was amended for purposes of clarity and better comprehension at the 5th Plenary Meeting of the Judges of the Special Court, as a result of

13 Decision on Motions for Exclusion of Prosecution Witness Statements and Stay of Filing of Prosecution Statements, 30 July 2004 (“Kanu Decision”). 14 Id., para. 13. 15 Id., paras. 12-24. interlocutory decisions – trial chamber 329 the discussions about its interpretation held during the Status Conference on 8 March 2004. Even though the amended Rule is more specifĳic and clearly provides for continuous disclosure, it was nevertheless already understood prior to these amendments that the previous version of the Rule did impose upon the Prosecution a continuous disclosure obligation. 15. The Motion was fĳiled on 23 March 2004, shortly after the adoption of the aforementioned amendments. Rule 6 of the Rules in this respect provides that an amendment of the Rules becomes efffective from the date of its approval.16 Therefore, as already held in the Kanu Decision, the New Rule 66 as amended rather than the Old Rule 66 of the Rules became efffective as of 14 March 2004 and was immediately applicable to the Motion as of that date.17 16. It is my considered view that the Trial Chamber Order’s to File Disclosure Materials already addressed in this case the submissions contained in the Motions and is in accordance with the scope and applicability of the provisions of New Rule 66(A).18 The said Order directly refers to the discussions held during the Status Conference regarding compliance with the Old Rule 66(A)(i) and the varying interpretations that the parties had accorded to the Rule. The Order, in particular, recognizes the Trial Chamber’s desire to ensure that the “rights of the Accused are not infringed, but rather are enhanced, by the amendment to Rule 66 of the Rules.”19

16 In addition, the record of that Plenary Meeting reveals that the Acting Principal Defender was present at the discussion on the proposed amendment to Rule 66 of the Rules. 17 Kanu Decision, para. 15. 18 See Kanu Decision, para. 16. For an interpretation of the provisions of New Rule 66, see, in addition, Prosecutor v. Norman et al., Case No. SCSL-04-14-T, Decision on Disclosure of Witness Statements and Cross-Examination, 16 July 2004 (“Norman Decision”), paras. 5–6. Para. 5 provides for the following: Rule 66 requires, inter alia, that the Prosecution disclose to the Defence copies of the statements of all witnesses which it intends to call to testify and all evidence to be presented pursuant to Rule 92bis, within 30 days of the initial appearance of the Accused. In addition, the Prosecution is required to continuously disclose to the Defence, the statements of all additional Prosecution witnesses it intends to call, not later than 60 days before the date of trial, or otherwise ordered by the Trial Chamber, upon good cause being shown by the Prosecution. Further, see also Prosecutor v. Sesay et al., Case No., SCSL-04-15-T, Decision on Defence Motion for Disclosure Pursuant to Rules 66 and 68 of the Rules, 9 July 2004, (“Sesay Decision”), paras. 21–22. Para. 21 provides the following: From an ordinary and plain reading of Rule 66(A)(ii) of the Rules, it is clear that it imposes a reciprocal obligation; one on the Prosecution and the other on the Defence. The fĳirst part of the Rule places the onus of showing good cause on the Prosecution, in a case where it intends to call additional witnesses to testify at the trial. […] The second part of the Rule places the burden on the Defence to show good cause why the evidence of witnesses whom the Prosecution does not want to call to testify at trial should be disclosed to the Defence. 19 Order to File Disclosure Materials, pp. 3, 6–7. As a result, the Chamber already ordered the Prosecution to fĳile a compliance report of its disclosure to date by 26 April 2004, a witness list of all 330 part ii

B) Will the Defence Sufffer Any Material Prejudice from the Disclosure? 19. In considering whether the Defence will sufffer any material prejudice should its Motion not be granted, in addition to the fĳinding of the Trial Chamber in its Order to File Disclosure Materials and in the Kanu Decision referred to above, further relevant jurisprudence from this Court as well as from the ICTY and the ICTR do provide appropriate guidance.20 20. In its Norman Decision, the Trial Chamber of the Special Court held the following with reference to disclosure: It is of course the role of the Trial Chamber to enforce disclosure obligations in the interest of a fair trial, and to ensure that the rights of the Accused, as provided in Article 17(4)(e) of the Statute, to examine or have examined, the witnesses against him or her, are respected and where the evidence has not been disclosed or is disclosed so late as to prejudice the fairness of the trial, the Trial Chamber will apply appropriate remedies which may include the exclusion of such evidence.21 21. In the Bagosora Decision, as correctly referred to by the Prosecution in its Response, the Trial Chamber of the ICTR held that despite the failure of the Prosecution to strictly comply with its disclosure obligations vis à vis the Defence, it was clearly of the view that the Defence will not be prejudiced in any way since the trial had been postponed and the Defence will consequently have sufffĳicient time to prepare for the trial. 22. Furthermore, in the Furundzija Decision, cited by both the Defence and the Prosecution, while the Trial Chamber of the ICTY noted with grave concern and deplored the Prosecution’s failure to comply with its obligation to disclose to the Defence, it did not exclude the Prosecution witness statements,22 but required the Prosecution to strictly comply with its order to provide full disclosure to the Defence by a particular date. witnesses it intends to call at trial, and to make any further disclosure to the Defence of any statements in full, with redactions as necessary pursuant to the various decisions for protective measures, that have not yet been disclosed for each witness that appears on the witness list. The Prosecutor fĳiled its compliance report on disclosure on 26 April 2004 which it later amended on 11 May 2004. See Materials Filed Pursuant to Order to the Prosecution to File Disclosure Materials and Other Materials in Preparation for the Commencement of the Trial of 1 April 2004, 26 April 2004, Cover Sheet 2; Updated Compliance Report Filed Pursuant to Undertaking by the Prosecution in Pre-Trial Conference Held on 30 April 2004 (AFRC), 11 May 2004. 20 On the applicability of jurisprudence from the ICTY and ICTR, see Decision and Order on Defence Preliminary Motion on Defects in the Form of the Indictment, 1 April 2004, paras. 19-26. 21 Norman Decision, para. 7. See also Prosecutor v. Sesay et al., Case No. SCSL-04-15-T, Ruling on the Oral Application of the Exclusion of Part of the Testimony of Witness TF1-199, 26 July 2004, para. 7; Ruling on Oral Application for the Exclusion of “Additional” Witness Statements for Witness TF1-060, 23 July 2004, para. 10; Ruling on the Oral Application for the Exclusion of Part of the Testimony of Witness TF1-199, 26 July 2004, para. 7. See also Prosecutor v. Furundzija, Case No. IT-95-17/1, Scheduling Order, 29 April 1998. 22 Prosecutor v. Furundzija, Case No. IT-95-17/1, Scheduling Order, 29 April 1998. interlocutory decisions – trial chamber 331

23. In the case under consideration, the Defence contention that the Prosecution has failed to comply with its disclosure obligations cannot be legally sustained in that, as discussed in Part A above, the Defence erred in its interpretation of the applicable provisions of Rule 66(A) of the Rules either as these provisions existed before the amendment or since the new amendments.23 24. In addition, I would like to reiterate that the Defence will not be prejudiced in any way as a consequence of the disclosure practice so far undergone by the Prosecution, as the Motion have failed to show how such disclosure could in con- creto prejudice the preparation of its case. All the statements whose disclosure is contested by the Defence in either the First Motion or the Additional Motion were disclosed well within the Pre-Trial stage. Indeed, no trial date has yet been set, thusfar, in this case. Therefore, I fĳind that the Defence has been provided with adequate notice of the case against the Accused and has sufffĳicient time to adequately prepare for trial.24 FOR THE ABOVE REASONS, DISMISS the Motion. Done at Freetown this 2nd day of August 2004.

23 See Kanu Decision, para. 23. 24 Kanu Decision, para. 24. Similarly, in the Sesay Decision the Trial Chamber found that the Defence in that case had sufffĳicient time to prepare for the commencement of the trial scheduled for 5 July 2004 although it received redacted disclosure of several witness statements as late as 26 April 2004, which coincide with the date of disclosure for several witness statements for this case. See Sesay Decision, para. 44. See also id., Decision on Defence Motion, 15 July 2004, para. 12

TRIAL CHAMBER II

Before: Judge Teresa Doherty, Presiding Judge Judge Richard Brunt Lussick Judge Julia Sebutinde Registrar: Robin Vincent Date: 4 February 2005 PROSECUTOR Against Alex Tamba Brima Brima Bazzy Kamara Santigie Borbor Kanu (Case No.SCSL-04-16-PT)

KANU-DECISION ON APPLICATION FOR LEAVE TO FILE AN INTERLOCUTORY APPEAL AGAINST DECISION ON MOTIONS FOR EXCLUSION OF PROSECUTION WITNESS STATEMENTS AND STAY ON FILING OF PROSECUTION STATEMENTS

Office of the Prosecutor: Defence Counsel for Alex Tamba Brima: Luc Côté Kevin Metzger Lesley Taylor Glenna Thompson Boi-Tia Stevens Kojo Graham Defence Counsel for Brima Bazzy Kamara: Wilbert Harris Mohamed Pa-Momo Fofanah Defence Counsel for Santigie Borbor Kanu: Geert-Jan Knoops Carry Knoops Abibola E. Manley-Spaine 334 part ii

TRIAL CHAMBER II (“Trial Chamber”) of the Special Court for Sierra Leone (“Special Court”), composed of Judge Teresa Doherty, presiding, Judge Richard Lussick and Judge Julia Sebutinde; SEIZED of the Application For Leave To File An Interlocutory Appeal Against the Decision on Motions for Exclusion of Prosecution Witness Statements and Stay of Filing of Prosecution Witness Statements of 4 August 2004 (“Motion”) on behalf of Santigie Borbor Kanu (“Accused”); CONSIDERING the Response, fĳiled on 6 September 2004 by the Prosecution and the Defence Reply thereto fĳiled on 13 September 2004; MINDFUL of the “Decision on Motions for Exclusion of Prosecution Witness Statements and Stay on Filing of Prosecution Statements” (“the Decision”) on 30 July 2004 by Judge Boutet as Designated Judge; NOTING that Rule 73(B) of the Rules of Procedure and Evidence for the Special Court for Sierra Leone (“Rules”) provides that: Decisions rendered on such motions are without interlocutory appeal. However, in exceptional circumstances and to avoid irreparable prejudice to a party, the Trial Chamber may give leave to appeal. Such leave should be sought within 3 days of the decision and shall not operate as stay of proceedings unless the Trial Chamber so orders. NOTING therefore the general rule that decisions are without interlocutory appeal, and that only if the conjunctive conditions of exceptional circumstances and irreparable prejudice to the accused in Rule 73(B) are satisfĳied, a Trial Chamber may grant leave to interlocutory appeal; NOTING AND APPLYING the decision of Trial Chamber I that: [Rule 73(B)] involves a high threshold that must be met before this Chamber can exercise its discretion to grant leave to appeal. The two limbs of the test are clearly conjunctive, not disjunctive: in other words, they must both be satisfĳied;1 FINDING that alleged failure to give weight to evidence in interpreting “good cause” by the designated judge of fĳirst instance does not constitute exceptional circumstances; HOLDING that neither exceptional circumstances nor irreparable prejudice to the applicant party has been shown to the satisfaction of the Court;

1 Prosecutor v. Sesay et al., Case No. SCSL-2004-15-PT, Decision on the Prosecutor’s Application for Leave to File an Interlocutory Appeal against the Decision on the Prosecution Motion for Joinder, 13 February 2004; Prosecutor v. Brima et al., Decision on the Prosecutor’s Application for Leave to File an Interlocutory Appeal against the Decision on the Prosecution Motion for Joinder, 13 February 2004. interlocutory decisions – trial chamber 335

NOTING that the rationale behind the restrictive nature of Rule 73(B) is that the proceedings before the Special Court should not be heavily encumbered and consequently unduly delayed by interlocutory appeals;2 NOTING that the rationale of Rule 66 is to provide the Defence with sufffĳicient time for their preparation for trial; CONSIDERING further that the remedy for a breach of the disclosure obligations by the Prosecutor would not necessarily amount to the exclusion of the evidence, but may be cured by an extension of time for the preparation of the disclosed material; CONSIDERING that in any event the Defence has had sufffĳicient time to review the witness statements rightly disclosed by the Prosecution and consequently to prepare for the commencement of the Trial; TRIAL CHAMBER II HERBY DISMISSES the Motion. Done at Freetown this 4th day of February 2005.

2 Prosecutor v. Sesay et al., Case No. SCSL-2004-15-PT, Decision on the Prosecutor’s Application for Leave to File an Interlocutory Appeal against the Decision on the Prosecution Motion for Joinder, 13 February 2004.

TRIAL CHAMBER II

Before: Judge Teresa Doherty, Presiding Judge Judge Richard Lussick Judge Julia Sebutinde Registrar: Robin Vincent Date: 15 February 2005 PROSECUTOR Against Alex Tamba Brima Brima Bazzy Kamara Santigie Borbor Kanu (Case No.SCSL-04-16-PT)

DECISION ON THE PROSECUTION APPLICATION TO FURTHER AMEND THE AMENDED CONSOLIDATED INDICTMENT BY WITHDRAWING COUNTS 15–18

Office of the Prosecutor: Defence Counsel for Alex Tamba Brima: Luc Côté Kevin Metzger Lesley Taylor Glenna Thompson Boi-Tia Stevens Kojo Graham Defence Counsel for Brima Bazzy Kamara: Wilbert Harris Mohamed Pa-Momo Fofanah Defence Counsel for Santigie Borbor Kanu: Geert-Jan Alexander Knoops Carry Knoops Abibola E. Manley-Spaine 338 part ii

TRIAL CHAMBER II (“Trial Chamber”) of the Special Court for Sierra Leone (“Special Court”), composed of Judge Teresa Doherty, presiding, Judge Richard Lussick and Judge Julia Sebutinde; BEING SEIZED of the Prosecution Application to Further Amend the Amended Consolidated Indictment by Withdrawing Counts 15–18 (“the Motion”), fĳiled on 7 February 2005 pursuant to Rule 50 (A) and Rule 73 of the Rules of Procedure and Evidence (“the Rules”); NOTING AND CONSIDERING that the amendment proposed by the Prosecution deletes counts 15 to 18 inclusive of the Amended Consolidated Indictment, fĳiled on 13 May 2004 and in particular the Prosecution submission in paragraphs 7, 10, and 15; CONSIDERING the Order on Expedited Filing and Scheduling Order of the Trial Chamber on 7 February 2005 shortening the time limits for the Response and Reply to the Motion; NOTING the Response of the Accused Kanu and that he “has no objections” and the Response of the Accused Brima that he “is content with the proposed amendment”; NOTING that the Accused Kamara has not fĳiled any Response; NOTING the Prosecution’s letter dated 14 February 2005 indicating that it would not fĳile a Reply; CONSIDERING that the Trial Chamber will normally exercise its discretion to permit the amendment, provided that the amendment does not cause any injustice to the accused, or does not otherwise prejudice the accused unfairly in the conduct of his defence; PURSUANT to Rules 50(A), 52(B) and 73(A) of the Rules: HEREBY GRANTS the Prosecution leave to amend the Amended Consolidated Indictment and orders as follows: 1) That Counts 15, 16, 17, and 18 of the Amended Consolidated Indictment fĳiled on 13 May 2004 are hereby deleted; 2) That the Prosecution fĳile its amended indictment with the above deletions by 18 February 2005; 3) Instructs the Registry to personally serve a copy of the amended indictment on each Accused as soon as possible in accordance with Rule 52(B). Done at Freetown this 15th day of February 2005. TRIAL CHAMBER II

CORRIGENDUM TO THE DECISION ON THE PROSECUTION APPLICATION TO FURTHER AMEND THE AMENDED CONSOLIDATED INDICTMENT BY WITHDRAWING COUNTS 15–18

Office of the Prosecutor: Defence Counsel for Alex Tamba Brima: Luc Côté Kevin Metzger Lesley Taylor Glenna Thompson Boi-Tia Stevens Kojo Graham Defence Counsel for Brima Bazzy Kamara: Wilbert Harris Mohamed Pa-Momo Fofanah Defence Counsel for Santigie Borbor Kanu: Geert-Jan Alexander Knoops Carry Knoops Abibola E. Manley-Spaine 340 part ii

TRIAL CHAMBER II (“Trial Chamber”) of the Special Court for Sierra Leone (“Special Court”), composed of Judge Teresa Doherty, Presiding Judge, Judge Richard Lussick and Judge Julia Sebutinde; NOTING the Decision on the Prosecution Application to Further Amend the Amended Consolidated Indictment by Withdrawing Counts 15–18, rendered by the Trial Chamber on 15 February 2005; CONSIDERING that the Order under paragraph 1 should read as follows: 1) That Counts 15, 16, 17, and 18 of the Amended Consolidated Indictment fĳiled on 13 May 2004 are hereby withdrawn and deleted; FOR THE FOREGOING REASONS, PURSUANT to Rule 54 of the Rules of Procedure and Evidence of the Special Court, ORDERS that the Decision be amended as set out above. Done at Freetown this 15th day of February 2005. Judge Teresa Doherty Presiding Judge Trial Chamber II TRIAL CHAMBER II

DECISION ON KANU’S MOTION FOR DISMISSAL OF COUNTS 15–18 OF THE INDICTMENT DUE TO AN ALIBI DEFENCE AND LACK OF PRIMA FACIE CASE AND REQUEST FOR EXTENSION OF TIME FOR THE HEARING OF THE DEFENCE MOTION

Office of the Prosecutor: Defence Counsel for Alex Tamba Brima: Luc Côté Kevin Metzger Lesley Taylor Glenna Thompson Boi-Tia Stevens Kojo Graham Defence Counsel for Brima Bazzy Kamara: Wilbert Harris Mohamed Pa-Momo Fofanah Defence Counsel for Santigie Borbor Kanu: Geert-Jan Alexander Knoops Carry Knoops Abibola E. Manley-Spaine 342 part ii

TRIAL CHAMBER II (“Trial Chamber”) of the Special Court for Sierra Leone (“Special Court”), composed of Judge Teresa Doherty, Presiding Judge, Judge Richard Lussick and Judge Julia Sebutinde; BEING SEIZED of the Accused Kanu’s Motion for Dismissal of Counts 15 to 18 of the Indictment Due to an Alibi Defence and Lack of Prima Facie Case, fĳiled on 20 January 2005 (“the Motion”); NOTING the Prosecution’s Response to the Motion on 31 January 2005 and the Defence Reply on 4 February 2005 thereto; NOTING the Order on Expedited Filing and Scheduling Order, dated 7 February 2005 scheduling a hearing for the Motion; NOTING the Accused’s Request for an Extension of Time for the Hearing of the Defence Motion for Dismissal of Counts 15 to 18 of the Indictment Due to an Alibi Defence and Lack of Prima Facie Case of 20 January 2005, fĳiled 11 February 2005 (“the Request”); NOTING the Prosecution’s Response on 15 February 2005 to the Request; NOTING the Decision of this Trial Chamber granting leave to the Prosecution to amend the Amended Consolidated Indictment by withdrawal of the counts 15, 16, 17, and 18 fĳiled 15 February 2005; UPHOLDS the objections by the Prosecution to the Defence Application in the Request to present its arguments in written form; CONSIDERS that both aforementioned Defence applications were fĳiled on the premise that counts 15 to 18 of the Amended Consolidated Indictment would continue to be part of the indictment; NOTING that the withdrawal of Counts 15, 16, 17, and 18 have rendered it unnecessary to decide either of the defence motions and that any determination thereof would be purely academic and theoretical; HOLDS that the Motion is now moot and an argument thereon is not called for; FOR THESE REASONS DISMISSES the Motion; DISMISSES the Request; VACATES the hearing date of 16 February 2005 for the Motion. Done at Freetown this 15th day of February 2005 TRIAL CHAMBER II

Before: Judge Teresa Doherty, Presiding Judge Judge Richard Lussick Judge Julia Sebutinde Registrar: Robin Vincent Date: 28 February 2005 PROSECUTOR Against Alex Tamba Brima Brima Bazzy Kamara Santigie Borbor Kanu (Case No.SCSL-04-16-PT)

DECISION ON DEFENCE APPLICATIONS NOT TO DISCLOSE PHOTOGRAPHY, VIDEO AND AUDIO RECORDINGS OF THE TRIAL TO THE PUBLIC AND/OR THIRD PARTIES

Office of the Prosecutor: Defence Counsel for Alex Tamba Brima: Luc Côté Kevin Metzger Lesley Taylor Glenna Thompson Boi-Tia Stevens Kojo Graham Defence Counsel for Brima Bazzy Kamara: Wilbert Harris Mohamed Pa-Momo Fofanah Defence Counsel for Santigie Borbor Kanu: Geert-Jan Alexander Knoops Carry J. Knoops Abibola E. Manley-Spaine 344 part ii

TRIAL CHAMBER II (“Trial Chamber”) of the Special Court for Sierra Leone (“Special Court”), composed of Judge Teresa Doherty, presiding, Judge Richard Lussick and Judge Julia Sebutinde; BEING SEISED of a REQUEST FOR AN ORDER NOT TO DISCLOSE PHOTOGRAPHY, VIDEO AND AUDIO RECORDINGS OF THE TRIAL TO THE PUBLIC AND/OR THIRD PARTIES, fĳiled on 11 February 2005 by the Accused Kanu, on 14 February 2005 by the Accused Brima and on 16 February 2005 by the Accused Kamara, wherein the Trial Chamber is requested to: (i) prohibit photography, video and audio recording of the Accused by third persons during the trial; (ii) direct the Registry not to publish or disclose photographs, video and audio records of the Accused to the media or other third persons; (iii) take reasonable measures to prevent Prosecution witnesses having access to such images prior to their testimony at trial; CONSIDERING the Prosecution’s Combined Response, fĳiled on 17 February 2005 and the Reply of the Accused Brima fĳiled on 21 February 2005, the Reply of the Accused Kanu fĳiled on 22 February 2005, and the Reply of the Accused Kamara fĳiled on the 22 February 2005; CONSIDERING ALSO the arguments put forward by the Accused in support of the Motions; CONSIDERING FURTHER that the proper time for the Trial Chamber to assess the reliability of witnesses is when they give evidence at the trial. If it is contended by an Accused that the credibility of a witness has been adversely afffected by his or her exposure to images or audio recordings of the Accused prior to testifying, then that is a matter which can be raised in cross-examination. This was the view taken by the ICTY in the case of Prosecutor v. Dusko Tadic,1 in which it held that: “In all trials, the potential impact of pre-trial media coverage is a factor that must be taken into account in considering the reliability of witnesses, and where this aspect was raised in cross-examination of witnesses, it has been taken into account in the evaluation of their testimony.” The ICTY applied the same principle in Prosecutor v. Zelko Mejakic & Others: Decision on Motion to Remove Photographs of Accused from ICTY Website,2 in which it held that “the potential impact of pre-trial media coverage is a factor to be taken into account in considering the reliability of witnesses in all trials before the

1 Prosecutor v. Dusko Tadic, Case No. IT-94-1, Opinion and Judgment, 7 May 1997, paras. 542–544. 2 Prosecutor v. Zelko Mejakic and Others, Case No. IT-02-65-PT, Decision on Motion to Remove Photographs of Accused from ICTY Website, 20 April 2004. interlocutory decisions – trial chamber 345

International Tribunal and is therefore a matter for consideration at trial and not a matter for determination by the Trial Chamber at this stage of the proceedings.” In a later case,3 the ICTY dealt with an application which sought (inter alia) orders identical to those sought in the present Motions, i.e. (1) to prohibit photography, video and audio recording of the accused by third persons and (2) directing the Registry not to publish or disclose photographs, video and audio records of the accused to the media. In dismissing the motion, the ICTY again held that: “the potential impact of pre-trial media coverage is a factor that must be taken into account at trial and not a matter for determination at this stage of the proceedings”; HOLDING that, notwithstanding the Accused having appeared before the Trial Chamber on many previous occasions on which the proceedings were recorded by the Registry by means of photography, video and audio recordings, their submissions regarding the potential impact of such recordings on witnesses at the trial remain purely speculative and do not support any material prejudice that would warrant the orders sought; HOLDING FURTHER that at present there is no application before the Trial Chamber by any “third” or other person seeking authorisation for photography, video-recording or audio-recording of the trial, and that it would not be appropriate for the Trial Chamber to consider exercising its discretion under Rule 81(D) until and unless such an application were made, HEREBY DISMISSES the Motions Done at Freetown this 28th day of February 2005.

3 Prosecutor v. Zelko Mejakic and Others, Case No. IT-02-65-PT, Decision on Dusko Knezevic’s Request Pursuant to Rule 81(D), 28 July 2004.

TRIAL CHAMBER II

Before: Judge Teresa Doherty, Presiding Judge Judge Richard Lussick Judge Julia Sebutinde Registrar: Robin Vincent Date: 2 March 2005 PROSECUTOR Against Alex Tamba Brima Brima Bazzy Kamara Santigie Borbor Kanu (Case No.SCSL-04-16-PT)

DECISION ON THE DEFENCE MOTION FOR DEFECTS IN THE FORM OF THE INDICTMENT

Office of the Prosecutor: Defence Counsel for Alex Tamba Brima: Luc Côté Kevin Metzger Lesley Taylor Glenna Thompson Boi-Tia Stevens Kojo Graham Defence Counsel for Brima Bazzy Kamara: Wilbert Harris Mohamed Pa-Momo Fofanah Defence Counsel for Santigie Borbor Kanu: Geert-Jan Alexander Knoops Carry Knoops Abibola E. Manley-Spaine 348 part ii

TRIAL CHAMBER II (“Trial Chamber”) of the Special Court for Sierra Leone (“Special Court”), composed of Judge Teresa Doherty, presiding, Judge Richard Lussick and Judge Julia Sebutinde; BEING SEISED of the Defence Motion for Defects in the Form of the Indictment (“the Motion”), fĳiled on 1 March 2005 by the Accused Brima pursuant to Rule 72 of the Rules of Procedure and Evidence (“the Rules”); NOTING that the Motion is a preliminary motion as defĳined by Rule 72(B)(ii) of the Rules; NOTING that Rule 72(A) provides: “Preliminary motions by either party shall be brought within 21 days following disclosure by the Prosecutor to the Defence of all the material envisaged by Rule 66(A)(i).” NOTING that Rule 50(B) provides: “If the amended indictment includes new charges and the accused has already made his initial appearance in accordance with Rule 61: i. A further appearance shall be held as soon as practicable to enable the accused to enter a plea on the new charges; ii. Within seven days from such appearance, the Prosecutor shall disclose all materials envisaged in Rule 66(A)(i) pertaining to the new charges; iii. The accused shall have a further period of ten days from the date of such disclosure by the Prosecutor in which to fĳile preliminary motions pursuant to Rule 72 and relating to the new charges.” NOTING that the Motion was fĳiled on 1 March 2005; NOTING that the disclosure referred to in Rule 72(A) for the initial Indictment dated 7 March 2003 was made by the Registrar on behalf of the Prosecution on 3 June 2003;1 NOTING that in respect of the Amended Consolidated Indictment Judge Boutet ordered on 17 May 2004 that the time limit of ten days for fĳiling preliminary motions to run from that date;2 FINDING accordingly that the Motion was clearly brought out of time in contravention of Rules 72(A) and 50(B)(iii); HEREBY DISMISSES THE MOTION.

1 Letter of the Registrar to former Defence Counsel Terrence Terry, Service of Disclosure Materials in accordance with the ruling of Judge Bankole Thompson the Prosecution Motion for Immidiate Protective Measures for Witnesses and Victims and for Non Public Disclosure, Prosecutor v. Alex Tamba Brima, SCSL-2003-06-PT, dated 31 May 2003; acknowledgment of receipt of disclosed material by Defence Counsel Terrence Terry signed on 3 June 2003. 2 Prosecutor v. Brima et al., Trancripts, Further Initial Appearance, 17 May 2004, page 24. TRIAL CHAMBER II

Before: Judge Teresa Doherty, Presiding Judge Judge Richard Lussick Judge Julia Sebutinde Registrar: Robin Vincent Date: 16 March 2005 PROSECUTOR Against Alex Tamba Brima Brima Bazzy Kamara Santigie Borbor Kanu (Case No.SCSL-04-16-T)

DECISION ON KANU MOTION TO DISCLOSE PROSECUTION MATERIAL AND/OR OTHER INFORMATION PERTAINING TO REWARDS TO PROSECUTION TRIAL WITNESSES AND BRIMA’S MOTION IN SUPPORT

Office of the Prosecutor: Defence Counsel for Alex Tamba Brima: Luc Côté Kevin Metzger Lesley Taylor Glenna Thompson Boi-Tia Stevens Kojo Graham Defence Counsel for Brima Bazzy Kamara: Wilbert Harris Mohamed Pa-Momo Fofanah Defence Counsel for Santigie Borbor Kanu: Geert-Jan Alexander Knoops Carry Knoops Abibola E. Manley-Spaine 350 part ii

TRIAL CHAMBER II (“Trial Chamber”) of the Special Court for Sierra Leone (“Special Court”), composed of Judge Teresa Doherty, presiding, Judge Richard Lussick and Judge Julia Sebutinde; BEING SEISED of the Motion to Disclose Prosecution Materials and/or Other Information Pertaining to Rewards Provided to the Prosecution Trial Witnesses (“the fĳirst Motion”), fĳiled by Defence Counsel for the Accused Santigie Borbor Kanu on 4 March 2005; BEING SEISED of a Motion in Support of the fĳirst Motion, fĳiled by Defence Counsel for the Accused Alex Tamba Brima on 4 March 2005 (“the second Motion”); HAVING HEARD the Parties in open Court on 16 March 2005; NOTING the Combined Prosecution Response to the fĳirst and second Motion, fĳiled on 7 March 2005 in which the Prosecution declares that it will disclose a record of payments made to its witnesses prior to the evidence in chief of each witness pursuant to Rule 68 of the Rules of Procedure and Evidence and it will endeavour to reach an agreement with Defence Counsel for the Accused as to the timing of such disclosure; NOTING the Joint Reply on the Combined Prosecution Response, fĳiled on 10 March 2005 in which the Defence no longer seeks a ruling on the motions and that they are satisfĳied that there is no issue between the parties in relation to this aspect of disclosure; FOR THE ABOVE REASONS, THE TRIAL CHAMBER DISMISSES BOTH MOTIONS. Done at Freetown this 16th day of March 2005. TRIAL CHAMBER II

Before: Judge Teresa Doherty, Presiding Judge Judge Richard Lussick Judge Julia Sebutinde Registrar: Robin Vincent Date: 15 April 2005 PROSECUTOR Against Alex Tamba Brima Brima Bazzy Kamara Santigie Borbor Kanu (Case No.SCSL-04-16-T)

DECISION ON CONFIDENTIAL PROSECUTION MOTION FOR PROTECTIVE MEASURES FOR WITNESS TF1-272

Office of the Prosecutor: Defence Counsel for Alex Tamba Brima: Luc Côté Kevin Metzger Lesley Taylor Glenna Thompson Boi-Tia Stevens Kojo Graham Defence Counsel for Brima Bazzy Kamara: Wilbert Harris Mohamed Pa-Momo Fofanah Defence Counsel for Santigie Borbor Kanu: Geert-Jan Alexander Knoops Carry Knoops Abibola E. Manley-Spaine 352 part ii

TRIAL CHAMBER II (“Trial Chamber”) of the Special Court for Sierra Leone (“Special Court”), composed of Judge Teresa Doherty, presiding, Judge Richard Lussick and Judge Julia Sebutinde; SEISED of the “Confĳidential Prosecution Motion for Protective Measures for Witness TF1-272” fĳiled on 15 March 2005 on behalf of the Prosecution (“Motion”); CONSIDERING the “Confĳidential Joint Defence Response to Confĳidential Prosecution Motion for Protective Measures for Witness TF1-272” fĳiled on 17 March 2005 on behalf of the Defence (“Response”) and the “Prosecution Letter Regarding Confĳidential Prosecution Motion for Protective Measures for Witness TF1-272” fĳiled on 4 April 2005 on behalf of the Prosecution; DECIDES AS FOLLOWS.

1. The Prosecution seeks an order for protective measures for expert witness TF1- 272. The Prosecutor submits that, with respect to this witness, no protective measures have previously been requested or ordered by the Special Court. The Prosecutor argues that the anticipated testimony of the witness could seriously endanger his safety and security if his identity became known to the public. In its confĳidential Motion, the Prosecution indicates in detail the reasons for these concerns. 2. The Defence does not oppose the proposed protective measures as sought by the Prosecution. 3. The Trial Chamber, noting that there are no issues between the parties, in exercise of the provisions of Rules 75(A) and (B) and Rule 79 grants the following protective measures: “(i) The witness shall be referred to by the pseudonym TF1-272 at all times during the course of the proceedings whether during the hearing or in documents, including the transcript of proceedings; (ii) The names, addresses, whereabouts or any other identifying information of witness TF1-272 shall be sealed and not included in any public records of the Special Court; (iii) To the extent that the names, addresses, whereabouts or other identifying data concerning witness TF1-272 is contained in existing public documents of the Special Court, that information shall be expunged from those documents; (iv) Witness TF1-272 will testify with the use of a screening device from the public; (v) Evidence of witness TF1-272’s nationality and employment will be heard in closed session and/or admitted under seal; interlocutory decisions – trial chamber 353

(vi) The public and media shall not photograph, video-record, sketch, or in any other manner record or reproduce images of witness TF1-272 while the witness is in the precincts of the Special Court.” 4. However, the Trial Chamber is of the view that the Prosecution’s request for an order to the Trial Chamber to “move into closed session as necessary and appropriate” is premature at this stage and accordingly it is refused.

Done at Freetown this 15th day of April 2005.

TRIAL CHAMBER II

Before: Judge Teresa Doherty, Presiding Judge Judge Richard Lussick Judge Julia Sebutinde Registrar: Robin Vincent Date: 29 April 2005 PROSECUTOR Against Alex Tamba Brima Brima Bazzy Kamara And Santigie Borbor Kanu (Case No.SCSL-04-16-T)

DECISION ON THE REPORT OF THE INDEPENDENT COUNSEL PURSUANT TO RULES 77(C)iii AND 77(D) OF THE RULES OF PROCEDURE AND EVIDENCE

Office of the Prosecutor: Defence Counsel for Alex Tamba Brima: Luc Côté Kevin Metzger Lesley Taylor Glenna Thompson Boi-Tia Stevens Kojo Graham Defence Counsel for Brima Bazzy Kamara: Wilbert Harris Mohamed Pa-Momo Fofanah Defence Counsel for Santigie Borbor Kanu: Geert-Jan Alexander Knoops Carry Knoops Abibola E. Manly-Spain 356 part ii

TRIAL CHAMBER II (“Trial Chamber”) of the Special Court for Sierra Leone (“Special Court”), composed of Judge Teresa Doherty, presiding, Judge Richard Lussick and Judge Julia Sebutinde; RECALLING that on 10 March 2005 Witness TF1-0231 during her evidence in chief in the case of The Prosecutor v. Alex Tamba Brima et al.2 made an oral complaint3 before the Trial Chamber alleging that on 9 March 2005, as she was leaving the court premises, certain persons called her by name and verbally threatened and intimidated her regarding her testimony in the said case, in contempt of the Special Court and in violation of witness protective matters;4 RECALLING that during a closed session of the Court on the same date the Prosecutor made oral submissions5 supplementary to and in support of the complaint raised by Witness TF1-023 and submitted to the Trial Chamber the following documents: (1) An Interofffĳice Memorandum dated 09 March 2005 from Atiq Ahmad Shaik, Senior Security Offfĳicer, addressed to the Chief of Security, SCSL (2) An Incident Report dated 09 March 2005 from J.J.P. Poraj-Wilczynski, Acting Chief of Security; (3) A Statement by Samuel Davies6 dated 09 March 2005; (4) A Statement by Joseph Bassie7 dated 09 March 2005; (5) A Statement by James Kongormanyi8 dated 09 March 2005; and (6) A letter date 09 March 2005 by Mr. Metzger addressed to the Principal Defender. RECALLING the oral submissions in response to the complaint by Witness TF1- 023 and to the Prosecution submissions, made by Mr. Kevin Metzger,9 Defence

1 For purposes of the trial Witness TF1-023 is categorised as a Group 1 (witness of fact), Category A (Victim of sexual assault and gender crimes) witness. 2 Case No. SCSL-2004-16-T. 3 Un-redacted transcript of 10 March 2005, page 3, line 2 to page 4, line 27. 4 The Prosecutor v. Issa Hassan Sesay, Case No. SCSL-2003-05-PT, Decision on the Prosecutor’s Motion for Immediate Protective Measures for Witnesses and Victims and for Non-public Disclosure, 23 May 2003, The Prosecutor v. Morris Kallon, Case No, SCSL 2003-07-PT, Decision on the Prosecutor’s Motion for Immediate Protective Measures for Witnesses and Victims and for Non-public Disclosure Decision on the Prosecutor’s Motion, 23 May 2005; The Prosecutor v. Augustine Gbao, Case No SCSL- 2003-09-PT, Decision on the Prosecutor’s Motion for Immediate Protective Measures for Witnesses and Victims and for Non-public Disclosure Decision on the Prosecutor’s Motion, 23 May 2005; and The Prosecutor v. Issa Hassan Sesay et al., Case No SCSL-04-15-T, Decision on the Prosecution Motion for Modifĳication of Protective Measures for Witnesses, 5 July 2004. 5 Un-redacted transcript of 10 March 2005 at page 6, line 1 to page 8, line 13. 6 Audio Visual Technician, Communications and Information Technology Section, SCSL, ID No. NSC279. 7 Audio Visual Technician, Communications and Information Technology Section, SCSL, ID No. NSC280. 8 Security Offfĳicer, Special Court Security Stafff, ID No. NSS114. 9 Un-redacted transcript of 10 March 2005 at page 8, line 17 to page 11, line 8. interlocutory decisions – trial chamber 357

Counsel for Alex Tamba Brima (Accused) Mr. Geert-Jan Alexander Knoops,10 Defence Counsel for Santigie Borbor Kanu (Accused) and Mr. Wilbert Harris,11 Defence Counsel for Brima Bazzy Kamara (Accused); RECALLING that on 10 March 2005 the Trial Chamber in exercise of its inherent power issued an Order12 pursuant to Rule 77(C) iii of the Rules of Procedure and Evidence (“the Rules”), inter alia, directing the Registrar to appoint an experienced independent counsel to investigate the following persons, namely Margaret Fomba,13 Neneh Binta Bah,14 Anifa Kamara,15 Ester Kamara16 and Brima Samura,17 and to report back to the Trial Chamber as to whether there are sufffĳicient grounds for instigating contempt proceedings against any of them; RECALLING ALSO the Interim Order of the Trial Chamber issued on 10 March 2005 suspending Brima Samura from Court and from his duties as an investigator for the Defence Team and prohibiting Margaret Fomba, Neneh Binta Bah, Anifa Kamara and Ester Kamara from entering the public gallery,18 pending the investigation and hearing of the matter (“Interim Order)”; NOTING that on 11 March 2005 the Registrar pursuant to the Order of the Trial Chamber, appointed Mr. Louis Tumwesige Independent Counsel, to conduct an independent investigation into the matter and to submit a report of his fĳindings to the Trial Chamber; NOTING that on 16 March 2005 Mr. Louis Tumwesige submitted a report19 of his fĳindings to the Trial Chamber; HAVING CONSIDERED carefully the matters disclosed in the said Report the Trial Chamber fĳinds that there are sufffĳicient grounds to proceed against each of the following persons for contempt, namely, Brima Samura, Margaret Fomba Brima, Neneh Binta Bah Jalloh, Anifa Kamara and Ester Kamara.

THE TRIAL CHAMBER ACCORDINGLY ISSUES THE FOLLOWING ORDERS: 1. An Order in lieu of Indictment as contained in Annex A of the Schedule hereto is issued in respect of Brima Samura.

10 Un-redacted transcript of 10 March 2005 at page 11, line 17 to page 12, line 14. 11 Un-redacted transcript of 10 March 2005 at page 12, line 17 to page 14, line 29. 12 Un-redacted transcript of 10 March 2005 at page 15, line 2 to page 16, line 13. 13 Wife of Alex Tamba Brima (Accused). 14 Wife of Santigie Borbor Kanu (Accused). 15 Wife of Brima Bazzy Kamara (Accused). 16 Friend of Brima Bazzy Kamara (Accused). 17 Investigator for the Alex Tanba Brima Defence Team. 18 Un-redacted transcript of 10 March 2005 at page 16, line 5 to 11. 19 Confĳidential report to the trial Chamber by Mr. Louis Tumwesige, dated 16 March 2005. 358 part ii

2. An Order in lieu of Indictment as contained in Annex B of the Schedule hereto is issued in respect of Margaret Fomba Brima, Neneh Binta Bah Jalloh, Anifa Kamara and Ester Kamara. 3. The Independent Counsel is directed to prosecute each of the following persons, namely Brima Samura, Margaret Fomba Brima, Neneh Binta Bah Jalloh, Anifa Kamara and Ester Kamara, for contempt in accordance with the respective Orders in lieu of Indictment referred to above. 4. The Trial Chamber’s Interim Order of 10 March 2005 with regard to each of the following persons, namely Brima Samura, Margaret Fomba Brima, Neneh Binta Bah Jalloh, Anifa Kamara and Ester Kamara shall remain in force until the fĳinal judgment in the respective contempt proceedings is delivered. 5. In accordance with Rule 77(D) of the Rules, Trial Chamber II hereby assigns the contempt proceedings pursuant to the Orders in lieu of Indictment referred to above, to Trial Chamber I. 6. The present Decision, including its Annexes A and B, are to be served on the parties today, if necessary after 4 p.m. Done at Freetown this 29th day of April 2005. interlocutory decisions – trial chamber 359

ANNEX A

THE SPECIAL COURT FOR SIERRA LEONE

The Prosecutor Against Brima Samura

ORDER IN LIEU OF INDICTMENT

The Charge The Independent Counsel, Special Court for Sierra Leone, under Rule 77(C)iii of the Rules of Procedure and Evidence of the Special Court for Sierra Leone (The Rules) charges Brima Samura with contempt of the Special Court, in violation of Rule 77(A) ii of the said Rules.

The Particulars On 09 March 2005 at the premises of the Special Court for Sierra Leone, Brima Samura knowingly and wilfully interfered with the Special Court’s administration of justice by disclosing information relating to proceeding, viz. the name and identity of protected witness TF1-023, to Margaret Fomba Brima and Neneh Binta Bah Jalloh, in knowing violation of an order of a Trial Chamber.

Case Summary 23. The Accused Brima Samura, born on 09 May 1971, living at 19 C Waterside Road, Upper Tengbeh Town, Freetown, was on 01 December 2004 appointed as an investigator on the Defence team for the Accused Alex Tamba Brima in the case of the Prosecutor v. Alex Tamba Brima et al.1 and by the virtue of his association with the said Defence team had access to confĳidential information relating to the name and identity of Witness TF1-023. 24. On 09 March 2005, a witness known by the pseudonym TF1-023 testifĳied for the fĳirst time before Trial Chamber II in the said case. In that trial Witness TF1-023 was categorised as a “Group 1 (witness of fact), Category A (victim of sexual assault and gender crimes)” witness. By virtue of that category, Witness TF1-023 enjoyed

1 Case No. SCSL-2004-16-T. 360 part ii certain protective measures ordered by the Special Court2 including the following, namely: “.... (i) All witnesses shall be referred to by pseudonyms at all times during the course of proceedings where during the hearing or in documents, including the transcript of the proceedings; (ii) The names, addresses, whereabouts and any other identifying information of witnesses shall be sealed and not included in any of the public records of the Special Court; (iii) To the extent that the names, addresses, whereabouts or other identifying data concerning witnesses are contained in existing public documents of the Special Court, that information shall be expunged from those documents; (iv) All documents of the Special Court identifying witnesses shall not be disclosed to the public or media; (v) The Defence shall refrain from sharing, discussing or revealing directly or indirectly, any disclosed non-public materials of any sort, or any information contained in any such document, to any person other than the Defence. (vi) The Defence shall maintain a log indicating the name, address and position of each person or entity which receives a copy of, or information from, a witness statement, interview report or summary of expected testimony, or other non-public material, as well as the date of disclosure; and the defence shall ensure that the person to whom such information was disclosed follows the order for non-disclosure; (vii) The Defence shall provide to the Registrar and to the Defence Offfĳice a designation of all persons working on the Defence team who…have access to any information referred to…above, and requiring the Defence to advise the Registrar and the Defence Offfĳice in writing of any changes in the composition of this Defence team....” 25. On 09 March 2005 during the morning session Brima Samura was in the Well of Court room No. 2 where Witness TF1-023 was testifying, and later spoke to

2 The Prosecutor v. Issa Hassan Sesay, Case No. SCSL-2003-05-PT, Decision on the Prosecutor’s Motion for Immediate Protective Measures for Witnesses and Victims and for Non-public Disclosure, 23 May 2003; The Prosecutor v. Morris Kallon, Case No. SCSL-2003-07-PT, Decision on the Prosecutor’s Motion for Immediate Protective Measures for Witnesses and Victims and for Non-public Disclosure, 23 May 2003; Prosecutor v. Augustine Gbao, Case No. SCSL-2003-09-PT, Decision on the Prosecutor’s Motion for Immediate Protective Measures for Witnesses and Victims and for Non-public Disclosure, 23 May 2003 and The Prosecutor v. Issa Hassan Sesay et al., Case No. SCSL-04-15-T, Decision on the Prosecution Motion for Modifĳication of Protective Measures for Witnesses, 05 July 2004. interlocutory decisions – trial chamber 361 certain women from the public gallery on two diffferent occasions. The fĳirst incident arose at about 10.00a.m. when in the Well of the Court one of the accused persons (Brima Bazzy Kamara) whispered to Ms. Claire Carlton Hanciles of the Defence Offfĳice that a key Defence witness who had promised to come was actually in the gallery and that the Defence teams should talk to that witness. Ms. Claire Carlton Hanciles in turn alerted Mr. Kevin Metzger, Defence Counsel for Alex Tamba Brima, who in turn instructed his legal assistant Mr. Osman Keh Kamara and investigator Brima Samura to contact a key Defence witness who happened to be in the public gallery at the time. On this occasion both Mr. Osman Keh Kamara and Brima Samura left the Well of the Court and met with and spoke to a certain woman believed to be the key Defence witness, outside the public gallery. On that occasion Brima Samura handed Osman Keh Kamara a written note of three pages which the latter then took back into the Well of the Court and passed to Mr. Metzger. 26. Later on towards noon, Brima Samura was in the public gallery of Court room No. 2 where he spoke to Margaret Fomba Brima, wife of the Accused Alex Tamba Brima and Neneh Binta Bah Jalloh, wife of the Accused Santigie Borbor Kanu and asked to meet them outside the public gallery because he had something important to tell them. The two women met Brima Samura outside of the public gallery and as they spoke Brima Samura disclosed the identity of Witness TF1-023 to these women in knowing violation of the witness’ protective measures ordered by the Trial Chamber. In the course of their conversation with Brima Samura the women expressed surprise that Witness TF1-023 was testifying before the Court in the said trial. The women said to Brima Samura that they knew where the witness was resident and that they were going to attack her house. 27. Later on that day as Witness TF1-023 was being escorted from the court premises by personnel from the Witness Protection Services of the Special Court in a vehicle with tinted windows, Margaret Fomba Brima, Neneh Binta Bah Jalloh, Anifa Kamara and Ester Kamara shouted out the witness’ name and told her in Krio that they knew she was testifying in the trial and that she was being conveyed in the vehicle. The women then uttered words in Krio whose efffect was to threaten and intimidate the witness as a result of the testimony she had given and was yet to give in to the Court. The threats uttered by the named women became possible only through Brima Samura’s disclosure of the witness’ identity to Margaret Fomba Brima and Neneh Binta Bah Jalloh. The incident happened at about 1.30 p.m. on 09 March 2005 on the premises of the Special Court, near the Generator house, towards the exit gate as Witness TF1-023 was leaving the Court premises.

Done in Freetown, Sierra Leone, this 29 day of April, 2005 362 part ii

ANNEX B

THE SPECIAL COURT FOR SIERRA LEONE

The Prosecutor Against Margaret Fomba Brima Neneh Binta Bah Jalloh Anifa Kamara Ester Kamara

ORDER IN LIEU OF INDICTMENT

The Charge The Independent Counsel, Special Court for Sierra Leone, under Rule 77(C)iii of the Rules of Procedure and Evidence of the Special Court for Sierra Leone (The Rules) jointly charges Margaret Fomba Brima, Neneh Binta Bah Jalloh, Anifa Kamara and Ester Kamara with contempt of the Special Court, in violation of Rule 77(A)iv of the said Rules.

The Particulars On 09 March 2005 at the premises of the Special Court for Sierra Leone, Margaret Fomba Brima, Neneh Binta Bah Jalloh, Anifa Kamara and Ester Kamara knowingly and wilfully interfered with the Special Court’s administration of justice by threatening and intimidating protected witness TF1-023, who had testifĳied and was continuing to testify in a proceeding before the Trial Chamber.

Case Summary 1. The Accused Margaret Fomba Brima, living at 47 C Waterside Road, Tengbeh Town, Freetown, is the wife of the Accused Alex Tamba Brima in the case of Prosecutor v. Alex Tamba Brima et al.1 and was in the public gallery of Courtroom No. 2 on 09 March 2005 when Witness TF1-023 testifĳied before the Trial Chamber. 2. The Accused Neneh Binta Nah Jalloh, living at 26 John Street, Freetown, is the wife of the Accused Santigie Borbor Kanu in the case of the Prosecutor v. Alex

1 Case No. SCSL-04-16-T. interlocutory decisions – trial chamber 363

Tamba Brima et al. and was in the public gallery of Courtroom No. 2 on 09 March 2005 when Witness TF1-023 testifĳied before the Trial Chamber. 3. The Accused Anifa Kamara, living at 3 Patton Street, Freetown, is the wife of the Accused Brima Bazzy Kamara in the case of the Prosecutor v. Alex Tamba Brima et al. and was in the public gallery of Courtroom No. 2 on 09 March 2005 when Witness TF1-023 testifĳied before the Trial Chamber. 4. The Accused Ester Kamara, living at 5 William Street, Freetown, is a friend of the Accused Brima Bazzy Kamara in the case of the Prosecutor v. Alex Tamba Brima et al. and was in the public gallery of Courtroom No. 2 on 09 March 2005 when Witness TF1-023 testifĳied before the Trial Chamber. 5. On 09 March 2005, a witness known by the pseudonym TF1-023 testifĳied for the fĳirst time before Trial Chamber II in the said case. In that trial Witness TF1-023 was categorised as a “Group 1 (witness of fact), Category A (victim of sexual assault and gender crimes)” witness. By virtue of that category, Witness TF1-023 enjoyed certain protective measures ordered by the Special Court2 including the following, namely: “.... i. All witnesses shall be referred to by pseudonyms at all times during the course of proceedings where during the hearing or in documents, including the transcript of the proceedings; ii. The names, addresses, whereabouts and any other identifying information of witnesses shall be sealed and not included in any of the public records of the Special Court; iii. To the extent that the names, addresses, whereabouts or other identifying data concerning witnesses are contained in existing public documents of the Special Court, that information shall be expunged from those documents; iv. All documents of the Special Court identifying witnesses shall not be disclosed to the public or media; v. The Defence shall refrain from sharing, discussing or revealing directly or indirectly, any disclosed non-public materials of any sort, or any information contained in any such document, to any person other than the Defence;

vi. The Defence shall maintain a log indicating the name, address and position of each person or entity which receives a copy of, or information from, a witness statement, interview report or summary of expected testimony, or other non-public material, as well as the date of disclosure; and the defence shall ensure that the person to whom such information was disclosed follows the order for non-disclosure. vii. The Defence shall provide to the Registrar and to the Defence Offfĳice a designation of all persons working on the Defence team who…have access to any information referred to…above, and requiring the Defence to advise the Registrar and the Defence Offfĳice in writing of any changes in the composition of this Defence team....” 6. On 09 March 2005 while in the public gallery of Court room No. 2, Brima Samura, an investigator attached to the Defence team for the Accused Alex Tamba Brima spoke to Margaret Fomba Brima and Neneh Binta Bah Jalloh, and asked to meet them outside the public gallery because he had something important to tell them. The two women met Brima Samura outside the public gallery and as they spoke Brima Samura disclosed the identity of Witness TF1-023 to these women in knowing violation of the witness’ protective orders. In the course of their conversation with Brima Samura the women expressed surprise that Witness TF1-023 was testifying before the court in the said trial. The women said to Brima Samura that they knew where the witness was resident and that they were going to attack her at her house. 7. Later on that day as Witness TF1-023 was being escorted from the court premises by personnel from the Witness Protection Services of the Special Court in a vehicle with tinted windows, Margaret Fomba Brima, Neneh Binta Bah Jalloh, Anifa Kamara and Ester Kamara shouted out the witness’ name and told her in Krio that they knew she was testifying in the trial and that she was being conveyed in the vehicle. The women then uttered words in Krio whose efffect was to threaten and intimidate the witness as a result of the testimony she had given and was yet to give in to the court. The threats uttered by the named women became possible only through Brima Samura’s disclosure of the witness’ identity to Margaret Fomba and Neneh Binta Bah Jalloh. The incident happened at about 1.30 p.m. on 09 March 2005 on the premises of the Special Court, near the Generator house, towards the exit gate as the witness was leaving the Court premises.

Done in Freetown, Sierra Leone, this 29th day of April 2005. TRIAL CHAMBER II

Before: Judge Teresa Doherty, Presiding Judge Judge Richard Lussick Judge Julia Sebutinde Registrar: Robin Vincent Date: 2 May 2005 PROSECUTOR Against Alex Tamba Brima Brima Bazzy Kamara Santigie Borbor Kanu (Case No.SCSL-04-16-T)

CORRIGENDUM TO THE DECISION ON THE REPORT OF THE INDEPENDENT COUNSEL PURSUANT TO RULES 77(C)iii AND 77(D) OF THE RULES OF PROCEDURE AND EVIDENCE

Office of the Prosecutor: Defence Counsel for Alex Tamba Brima: Luc Côté Kevin Metzger Lesley Taylor Glenna Thompson Boi-Tia Stevens Kojo Graham Defence Counsel for Brima Bazzy Kamara: Wilbert Harris Mohamed Pa-Momo Fofanah Defence Counsel for Santigie Borbor Kanu: Geert-Jan Alexander Knoops Carry Knoops Abibola E. Manly-Spain 366 part ii

TRIAL CHAMBER II (“Trial Chamber”) of the Special Court for Sierra Leone (“Special Court”), composed of Judge Teresa Doherty, presiding Judge, Judge Richard Lussick and Judge Julia Sebutinde; NOTING the “Decision on the Report of the Independent Counsel Pursuant to Rules 77(C)iii and 77(D) of the Rules of Procedure and Evidence” rendered by the Trial Chamber on 29 April 2005; CONSIDERING that the order under paragraph 5 should read as follows: “In accordance with Rule 77(D) of the Rules, Trial Chamber II hereby assigns the contempt proceedings pursuant to the Orders in lieu of Indictment referred to above, to Trial Chamber I or a single judge thereof”; CONSIDERING ALSO that the name of the accused in the title of Annex A should read as “Brima Samura”; CONSIDERING FURTHER that the decision and its Annexes A and B should have been classifĳied as public documents; FOR THE FOREGOING REASONS, pursuant to Rule 54 of the Rules of Procedure and Evidence of the Special Court ORDERS that the Decision be amended as set out above. Done at Freetown this 2nd day of May 2005. TRIAL CHAMBER II

Before: Judge Teresa Doherty, Presiding Judge Judge Richard Lussick Judge Julia Sebutinde Registrar: Robin Vincent Date: 4 May 2005 PROSECUTOR Against Alex Tamba Brima Brima Bazzy Kamara Santigie Borbor Kanu (Case No.SCSL-04-16-T)

DECISION ON JOINT DEFENCE MOTION ON DISCLOSURE OF ALL ORIGINAL WITNESS STATEMENTS, INTERVIEW NOTES AND INVESTIGATORS’ NOTES PURSUANT TO RULES 66 AND/OR 68

Office of the Prosecutor: Defence Counsel for Alex Tamba Brima: Luc Côté Kevin Metzger Lesley Taylor Glenna Thompson Boi-Tia Stevens Kojo Graham Defence Counsel for Brima Bazzy Kamara: Wilbert Harris Mohamed Pa-Momo Fofanah Defence Counsel for Santigie Borbor Kanu: Geert-Jan Alexander Knoops Carry Knoops Abibola E. Manly-Spain 368 part ii

TRIAL CHAMBER II (“Trial Chamber”) of the Special Court for Sierra Leone (“Special Court”), composed of Judge Teresa Doherty, presiding, Judge Richard Lussick and Judge Julia Sebutinde; SEISED of the Joint Defence Motion on Disclosure of All Original Witness Statements, Interview Notes and Investigators’ Notes Pursuant to Rules 66 and/or 68, fĳiled on 10th March 2005 on behalf of Brima, Kamara and Kanu (“Motion”); NOTING the Prosecution Response to the Motion, fĳiled on 6th April 2005 (“Response”), and the Joint Defence Reply, fĳiled on 12th April 2005 (“Reply”); NOTING ALSO the Prosecution Submissions in Response to Relief Requested by Defence in Their Reply Dated 12th April 2005, fĳiled on 25th April 2005; DECIDES AS FOLLOWS based solely on the written submissions of the parties pursuant to Rule 73(A) of the Rules of Procedure and Evidence of the Special Court (“Rules”);

I. Submissions of the Parties

Motion 1. The Motion seeks an order that the Prosecution release all original materials pertaining to the interviews of Prosecution witnesses, in particular the original witness statements, the original notes of the Prosecution investigators, and any other materials pertaining to initial witness interviews. 2. In support of its request, the Defence alleges that there are inconsistencies with respect to the testimony in chief by Witnesses TF1-024 and TF1-277 on 7 and 8 March 2005 on one hand and their pre-trial statements on the other hand. 3. The Defence contends that the disclosure it seeks forms part of the Prosecution’s disclosure obligation under Rules 66 and/or 68 of the Rules.1 4. The Defence submits that in order to further verify the authenticity of the initial witness statements given to Prosecution Investigators, the original witness interviews and the Investigators’ notes pertaining to these witnesses ought to be disclosed to the Defence.

1 The Defence relies on the ICTR case of The Prosecutor v. Bagilishema, ICTR-95-1A-T, Decision on the Request of the Defence for an Order for disclosure by the Prosecutor of the Admissions of guilt of Witnesses Y,Z and AA, of June 8, 2000; and the ICTY cases of Prosecutor v. Blaskic, Appeals Chamber Decision on the Appellant’s Motion for the production of Material, Suspension or extension of the Briefĳing Schedule, and additional fĳilings, of September 26, 2000, para. 15–16; andProsecutor v. Kordic and Cerkez, Order on Motion to Compel Compliance by Prosecution with Rule 66(A) and 68, February 26, 1999. interlocutory decisions – trial chamber 369

5. The Defence relies on a ruling by Trial Chamber I of the Special Court that the Prosecutor was obliged to disclose to the Defence “copies of all statements of all witnesses who they intend to call and which include new developments in the investigation in the form of “will-say” statements, interview notes, or in any other form.”

Response 6. In its Response, the Prosecution submits that witnesses TF1-024 and TF1-277 have already testifĳied, been cross-examined and released by the Court, and that discrepancies between their pre-trial statements and their testimony have already been explored by the Defence. 7. With regards to the statement of witness TF1-277 dated 25 November 2003, the Prosecution submits that the Joint Defence Motion does not refer to the Interview notes of 17 February 2005 in which clarifĳication of a particular incident is given. 8. The Prosecution further submits that a court will usually assess any discrepancies between pre-trial statements and testimonies and give appropriate weight to the evidence without reference to original investigation notes.2 9. Also, the Prosecution submits that under Rule 70 of the Rules he is not required to disclose internal memoranda arising from investigations.3 10. The Prosecution submits that the original interview notes no longer exist and therefore cannot be subject to disclosure.

Reply 11. In its Reply, the Defence modifĳies its relief sought as formulated in its Motion and seeks an “order that the Prosecution, by destroying the materials requested by the Defence in its Motion, has failed to fulfĳil its disclosure obligations under Rules 66 and 68 of the Rules.” 12. The Defence submits that Rule 70 does not curtail the Prosecutor’s disclosure obligations under Rule 68 on which it relies. The Defence argues that an obligation under Rule 68 stands uncontested by the Prosecution.

2 On the issue of discrepancies, the Prosecution relies on the ICTR case of The Prosecutor v. Niyitegeka, Judgement and sentence, ICTR-96-14-T, 16 May 2003 at para. 41; amd also the ICTR case of The Prosecutor v. Nahimana et al., Judgement and sentence, ICTR-96-14-T, 13 December 2003 at para. 61. 3 In this regard, the Prosecution relies on the ICTY case of The Prosecutor v. Blaskic, Decision on the production of discovery materials, IT-95-14-PT, 27 January 1997 at para. 40. 370 part ii

13. The Defence also submits that under the case law of the Special Court,4 it is entitled to have access to the requested materials under Rule 66 of the Rules. 14. The Defence submits that even if the Prosecution may not be in possession of the requested materials, it is still necessary for the Chamber to rule on the relevance of these materials, and to make an assessment as to whether the Prosecution has met its disclosure obligations under Rules 66 and 68 of the Rules.

II. The Applicable Law

15. The law governing the disclosure of materials is embodied in Rules 66, 67, 68 and 70 of the Rules of Procedure and Evidence of the Special Court (“Rules”) which read as follows: Rule 66: Disclosure of materials by the Prosecutor (amended 29 May 2004) (A) Subject to the provisions of Rules 50, 53, 69 and 75, the Prosecutor shall: i. Within 30 days of the initial appearance of an accused, disclose to the Defence copies of the statements of all witnesses whom the Prosecutor intends to call to testify and all evidence to be presented pursuant to Rule 92bis at trial. ii. Continuously disclose to the Defence copies of the statements of all additional prosecution witnesses whom the Prosecutor intends to call to testify, but not later than 60 days before the date for trial, or as otherwise ordered by a Judge of the Trial Chamber either before or after the commencement of the trial, upon good clause being shown by the Prosecution. Upon good cause being shown by the Defence, a Judge of the Trial Chamber may order that copies of the statements of additional prosecution witnesses that the Prosecutor does not intend to call be made available to the defence within a prescribed time. iii. At the request of the defence, subject to Sub-Rule (B), permit the defence to inspect any books, documents, photographs and tangible objects in his custody or control, which are material to the preparation of the defence, upon a showing by the defence of categories of, or specifĳic, books, documents, photographs and tangible objects which the defence considers to be material to the preparation of a defence, or to inspect any books, documents, photographs and tangible objects in his custody or control which are intended for use by the Prosecutor as evidence at trial or were obtained from or belonged to the accused. (B) Where information or materials are in the possession of the Prosecutor, the disclosure of which may prejudice further or ongoing investigations, or for any other reasons may be contrary to the public interest or afffect the security interests of any State, the Prosecutor may apply to a Judge designated by the President sitting ex parte and in camera, but with notice to the Defence, to be relieved from the obligation to disclose pursuant to Sub-Rule (A). When making such an application the Prosecutor shall provide, only to such Judge, the information or materials that are sought to be kept confĳidential.

4 See Prosecutor v. Norman et al., Case No. SCSL-2004-14-T, Ruling on disclosure of Witness statements, 1 October 2004. interlocutory decisions – trial chamber 371

Rule 67: Reciprocal Disclosure of Evidence (amended 7 March 2003) Subject to the provisions of Rules 53 and 69: (A) As early as reasonably practicable and in any event prior to the commencement of the trial: i. The Prosecutor shall notify the defence of the names of the witnesses that he intends to call to establish the guilt of the accused and in rebuttal of any defence plea of which the Prosecutor has received notice in accordance with Sub-Rule (ii) below, or any defence pleaded in the Defence Case Statement served under Sub-Rule (C); ii. The defence shall notify the Prosecutor of its intent to enter: a. The defence of alibi; in which case the notifĳication 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; b. Any special defence, including that of diminished or lack of mental responsibility; in which case the notifĳication shall specify the names and addresses of witnesses and any other evidence upon which the accused intends to rely to establish the special defence. (B) Failure of the defence to provide such notice under this Rule shall not limit the right of the accused to rely on the above defences. (C) To assist the Prosecutor with its disclosure obligations pursuant to Rule 68, the defence may prior to trial provide the Prosecutor with a Defence Case Statement. The Defence Case Statement shall: i. set out in general terms the nature of the accused’s defence; ii. indicate the matters on which he takes issue with the prosecution; and iii. set out, in the case of each such matter, the reason why he takes issue with the prosecution. (D) If either party discovers additional evidence or information or materials which should have been produced earlier pursuant to the Rules, that party shall promptly notify the other party and the Trial Chamber of the existence of the additional evidence or information or materials.

Rule 68: Disclosure of Exculpatory Evidence (amended 14 March 2004) (A) The Prosecutor shall, within 14 days of receipt of the Defence Case Statement, make a statement under this Rule disclosing to the defence the existence of evidence known to the Prosecutor which may be relevant to issues raised in the Defence Case Statement. (B) The Prosecutor shall, within 30 days of the initial appearance of the accused, make a statement under this Rule disclosing to the defence the existence of evidence known to the Prosecutor which in any way tends to suggest the innocence or mitigate the guilt of the accused or may afffect the credibility of prosecution evidence. The Prosecutor shall be under a continuing obligation to disclose any such exculpatory material. 372 part ii

Rule 70: Matters not Subject to Disclosure (amended 7 March 2003) (A) Notwithstanding the provisions of Rules 66 and 67, reports, memoranda, or other internal documents prepared by a party, its assistants or representatives in connection with the investigation or preparation of the case, are not subject to disclosure or notifĳication under the aforementioned provisions. (B) If the Prosecutor is in possession of information which has been provided to him on a confĳidential basis and which has been used solely for the purpose of generating new evidence, that initial information and its origin shall not be disclosed by the Prosecutor without the consent of the person or entity providing the initial information and shall in any event not be given in evidence without prior disclosure to the accused. (C) If, after obtaining the consent of the person or entity providing information under this Rule, the Prosecutor elects to present as evidence any testimony, document or other material so provided, the Trial Chamber may not order either party to produce additional evidence received from the person or entity providing the initial information, nor may the Trial Chamber for the purpose of obtaining such additional evidence itself summon that person or a representative of that entity as a witness or order their attendance. The consent shall be in writing. (D) If the Prosecutor calls as a witness the person providing or a representative of the entity providing information under this Rule, the Trial Chamber may not compel the witness to answer any question the witness declines to answer on grounds of confĳidentiality. (E) The right of the accused to challenge the evidence presented by the Prosecution shall remain unafffected subject only to limitations contained in Sub-Rules (C) and (D). (F) Nothing in Sub-Rule (C) or (D) above shall afffect a Trial Chamber’s power to exclude evidence under Rule 95.

III. Deliberations

16. It is our opinion that the following propositions are correct statements of the law governing disclosure obligations. • The cited Rules, with the exception of Rule 70, impose an obligation of continuous disclosure.5 • What is a Witness Statement: Any statement or declaration made by a witness in relation to an event he or she witnessed and recorded in any form by an offfĳicial in the course of an investigation, falls within the meaning of a “witness statement” under Rule 66(A)(i). Accordingly, facts contained in an investigator’s interview notes which constitute

5 See Prosecutor v. Norman et al., Case No. SCSL-2004-14-T, Ruling on disclosure of Witness statements, 1 October 2004, para. 2. interlocutory decisions – trial chamber 373

statements made by the witness in the course of an investigation come within the meaning of “witness statements” under Rule 66(A)(i).6 • What must be disclosed: Rule 66 requires disclosure of all witness statements in the possession of the Prosecution, regardless of their form or source, save for any material covered by Rule 70(A). An investigator’s notes of statements made by a witness would therefore be disclosable,7 but only to that extent. • What need not be disclosed: Pursuant to Rule 70(A), any reports, memoranda, or other internal documents prepared by a party, its assistants or representatives in connection with the investigation or preparation of the case, are not subject to disclosure or notifĳication under the aforementioned provisions. It follows that investigator’s notes of an internal nature not containing statements made by a witness would not be disclosable. • Th e role of the Trial Chamber: It is the role of the Trial Chamber to enforce disclosure obligations in the interests of a fair trial, and to ensure that the rights of the Accused, as provided in Article 17(4), to have adequate time and facilities for the preparation of his or her defence and to examine, or have examined, the witnesses against him or her, are respected.8 • Late Disclosure: Where evidence has not been disclosed or is disclosed so late as to prejudice the fairness of the trial, the Trial Chamber will apply appropriate remedies, which may include the exclusion of such evidence.9 The specifĳic remedy applied may vary from case to case. • Bona Fides of the Parties: In explaining the rationale behind Rule 66, we adopt the principle enunciated by Trial Chamber 1, which is as follows: “The premise underlying disclosure obligations is that the parties should act bona fĳides at all times. There is authority from the evolving jurisprudence of the International Criminal Tribunals that any allegation by the Defence as to a violation of the disclosure rules by the Prosecution should be substantiated with prima facie proof of

6 See Prosecutor v. Norman et al., Case No. SCSL-2004-14-PT, Decision on Disclosure of Witness Statements and Cross-examination, 16 July 2004, para. 10. 7 See Prosecutor v. Norman et al., Case No. SCSL-2004-14-PT, Decision on Disclosure of Witness Statements and Cross-examination, 16 July 2004, paras. 7 and 16. 8 See Prosecutor v. Furundzija, Scheduling Order, 29th April 1998; Prosecutor v. Sam Hinga Norman, Moinina Fofana, Allieu Kondewa, Decision on Disclosure of Witness Statements and Cross- Examination, 16th July 2004, para. 7 9 See Prosecutor v. Sesay et al., Case No. SCSL-2004-15-T, Ruling on Oral Application for the Exclusion of Statements of Witness TF1-141 Dated Respectively 9th of October, 2004, 19th and 20th of October, 2004, and 10th of January, 2005, 3 February 2005, para. 20f. 374 part ii

such a violation. This Chamber in recent decisions has indeed ruled that the Defence must “make a prima facie showing of materiality and that the requested evidence is in the custody or control of the Prosecution.”10 17. In the present case, the Prosecution has explained in its Response that during the initial investigation phase investigators’ notes were taken in rough form which included statements of potential witnesses together with information that was relevant only to the internal functioning of the OTP, such as investigative leads. In other words, disclosable and non-disclosable materials were recorded in the same investigator’s notes without distinction. All evidentiary material collected in rough form was then transferred to written witness statements (either handwritten or typewritten) and non-disclosable material was transferred to Internal Memoranda. The rough notes were thus rendered superfluous and were destroyed. 18. It seems to us that the procedure adopted by the Prosecution to separate disclosable and non-disclosable material by reducing the disclosable material to the form of a witness statement was reasonable in the circumstances. In our view, the fact that the rough notes containing both disclosable and non-disclosable material were later destroyed does not, by itself, amount to a failure by the Prosecution to fulfĳil its disclosure obligations. 19. There is nothing before the Trial Chamber which would entitle it to conclude that the Prosecution has concealed or destroyed material which it was obliged to disclose. As stated by the Prosecution, all witness statements within the possession or control of the OTP have been disclosed to the Defence, and there are no longer any original investigators notes in existence. The Defence has not established any reason to refute the assumption that the Prosecution acted in good faith. Further, the Prosecution undertakes that in the future, it will provide handwritten statements as well as typed versions thereof, where such hand written versions exist. The Trial Chamber therefore fĳinds that the Defence has failed to demonstrate or substantiate by prima facie proof the allegation of breach by the Prosecution of Rules 66 and 68. 20. There is one last matter. The Trial Chamber notes that, in its Reply, the Defence sought to substantially modify the relief sought. This is a practice that must be discouraged. A Reply is meant to answer matters raised by the other party in its Response, not to claim additional relief to that sought in the Motion.

10 See Prosecutor v. Sesay, Decision on Defence Motion for Disclosure Pursuant to Rules 66 and 68 of the Rules, 9 July 2004, para. 27. interlocutory decisions – trial chamber 375

Obviously the other party, having already fĳiled a Response to the Motion, has no way under the Rules to answer the new prayer, except to apply to the Trial Chamber for leave to do so. In future, the Trial Chamber will not hear claims for additional relief contained in a Reply. FOR ALL THE ABOVE-STATED REASONS, The Trial Chamber dismisses the Motion. The Honourable Judge Julia Sebutinde will append a separate concurring opinion to this Decision.* Done at Freetown this 4th May 2005.

* Editors’ Note: It appears that Judge Sebutinde did not append her separate concurring opinion.

TRIAL CHAMBER II

Before: Judge Teresa Doherty, Presiding Judge Judge Richard Lussick Judge Julia Sebutinde Registrar: Robin Vincent Date: 13 May 2005 PROSECUTOR Against Alex Tamba Brima Brima Bazzy Kamara Santigie Borbor Kanu (Case No.SCSL-04-16-T)

CONSEQUENTIAL ORDER ON THE ROLE OF COURT APPOINTED COUNSEL

Office of the Prosecutor: Defence Counsel for Alex Tamba Brima: Luc Côté Glenna Thompson Lesley Taylor Kojo Graham Boi-Tia Stevens Defence Counsel for Brima Bazzy Kamara: Mohamed Pa-Momo Fofanah Defence Counsel for Santigie Borbor Kanu: Geert-Jan Alexander Knoops Carry Knoops Abibola E. Manly-Spain 378 part ii

TRIAL CHAMBER II (“Trial Chamber”) of the Special Court for Sierra Leone (“Special Court”), composed of Judge Teresa Doherty, presiding, Judge Richard Lussick and Judge Julia Sebutinde; RECALLING the oral majority order delivered by the Trial Chamber on 12 May 2005 on the “Confĳidential Joint Defence Submission on the Withdrawal of Counsel in the AFRC Case” and the Accused Kanu’s “Defence Motion to Inform the Trial Chamber on the Legal Position of the Defence in View of Contempt of Court Developments”; NOTING the separate and dissenting opinion in this case of Judge Julia Sebutinde; HEREBY ISSUES THE FOLLOWING ORDER: ORDERS that the duty of Glenna Thompson and Kojo Graham as Counsel for Alex Tamba Brima and Mohamed Pa-Momo Fofanah as Counsel for Brima Bazzy Kamara shall be to represent their clients until Lead Counsel will be assigned to these two Accused, and in particular, shall: 1. represent the Accused by investigating and preparing for the testimony of Prosecution witnesses and cross-examining them; 2. prepare for and examine those witnesses Counsel deem appropriate to call for their defence; 3. make all submissions on fact and law that Counsel deem appropriate to make in the form of oral and written motions before the court; 4. seek from the Trial Chamber such orders as they consider necessary to enable them to present the Accused’s case properly, including the issuance of subpoenas; 5. discuss with the Accused the conduct of the case, endeavour to obtain his instructions thereon and take account of views expressed by the Accused, while retaining the right to determine what course to follow; 6. draw to the attention of the Trial Chamber any exculpatory or mitigating evidence; 7. act throughout in the best interests of the Accused and in any other way which Counsel considers appropriate in order to secure a fair and expeditious trial; STATES that this Order may be modifĳied at any time should necessity arise. Done at Freetown, Sierra Leone, this 13th day of May 2005. TRIAL CHAMBER II

Before: Justice Teresa Doherty, Presiding Judge Justice Richard Lussick Justice Julia Sebutinde Registrar: Robin Vincent Date: 20 May 2005 PROSECUTOR Against Alex Tamba Brima Brima Bazzy Kamara Santigie Borbor Kanu (Case No.SCSL-04-16-T)

DECISION ON THE CONFIDENTIAL JOINT DEFENCE APPLICATION FOR WITHDRAWAL BY COUNSEL FOR BRIMA AND KAMARA AND ON THE REQUEST FOR FURTHER REPRESENTATION BY COUNSEL FOR KANU

Office of the Prosecutor: Defence Counsel for Alex Tamba Brima: Luc Côté Kevin Metzger Lesley Taylor Glenna Thompson Kojo Graham Defence Counsel for Brima Bazzy Kamara: Wilbert Harris Mohamed Pa-Momo Fofanah Defence Counsel for Santigie Borbor Kanu: Geert-Jan Alexander Knoops Carry Knoops Abibola E. Manly-Spain 380 part ii

TRIAL CHAMBER II (“Trial Chamber”) of the Special Court for Sierra Leone (“Special Court”), composed of Justice Teresa Doherty, presiding, Justice Richard Lussick and Justice Julia Sebutinde; SEISED of the “Confĳidential Joint Defence Submissions on the Withdrawal of Counsel in the AFRC Case” by Lead Counsel for Alex Tamba Brima and Brima Bazzy Kamara (“Brima and Kamara Defence Motion”), fĳiled on 5 May 2005 and served on the Prosecution in their un-redacted form on 6 May 2005; FURTHER SEISED of the “Confĳidential, ex parte and under Seal Kanu-Defence Motion to inform the Trial Chamber on the Legal Position of the Defence in View of Contempt of Court Developments” on behalf of Santigie Borbor Kanu (“Kanu Defence Motion”), fĳiled on 4 May 2005; NOTING a) The “Prosecution Submissions in Response to Application by Defence Counsel to Withdraw from the Case” fĳiled on 5 May 2005 (“Response”); b) The “Principal Defender’s Confĳidential ex parte Submission Regarding Issues Pertaining to Withdrawal of Counsel” fĳiled on 5 May 2005 and served on the Prosecution in its un-redacted form on 6 May 2005; c) The oral submissions of the parties on 2, 3 and 6 of May 2005; d) The “Confĳidential Prosecution Submissions on Response to Defence Submissions Disclosed to the Prosecution in Their Unredacted Form Pursuant to Order Dated 6 May 2005” fĳiled on 9 May 2005; RECALLING a) The Trial Chamber’s oral Order of 3 May 2005 directing the parties to fĳile written applications by 5 May 2005; b) The Trial Chamber’s written “Order to Show Cause and Scheduling Order” issued on 5 May 2005; c) The Trial Chamber’s oral Order of 6 May 2005 directing the Defence to disclose certain documents to the Prosecution; RECALLING FURTHER that the Trial Chamber handed down oral orders on 5 May 2005 due to the urgency and importance of this matter and indicated that a reasoned decision would follow in due course; HEREBY DECIDES AS FOLLOWS.

I. Submissions of the Parties

Kanu Defence Motion 1. The Defence for Kanu requests the Trial Chamber: (a) To declare that the Defence be allowed to further represent their client under the conditions that the Defence team will continue to be assigned to the interlocutory decisions – trial chamber 381

case, that the Defence team should not withdraw from the contract as signed with the Principal Defender of the Special Court, that the Defence team is authorized to attend trial, cross-examine Prosecution witnesses insofar as Counsel deems it to be in the interest of the case and position of the Accused depending on the contents of the particular witness statements given in court, and that the Defence team is authorized to continue to fĳile motions on behalf of the Accused insofar as these motions are deemed to be in the interest of his case which is to be assessed by Counsel; and (b) To issue any further declaration the Trial Chamber deems appropriate in view of the legal position of the Defence considering the present circumstances.

Brima and Kamara Defence Motion 2. The Lead Counsel for Brima and Kamara (“Lead Counsel”) request the Trial Chamber: (a) To approve their withdrawal as Counsel for Brima and Kamara; (b) Not to order them to be made ‘Court Appointed Counsel’; and (c) To make any other order it deems appropriate. 3. Lead Counsel rely on Rule 45 (E) of the Rules of Procedure and Evidence (“Rules”) and on the Code of Practice of their Bar Association. 4. They argue that “there has been a signifĳicant amount of difffĳiculty between Counsel in the case and the Accused persons”1 as a result of (a) an unanswered complaint by the Defence for Brima to the Principal Defender and the Registry asking for an inquiry into an alleged assault on its investigator; (b) a complaint by Witness TF1-023 supported by an oral application by the Prosecution concerning alleged threats to the Witness; and (c) the Trial Chamber’s and the Registrar’s reactions to the latter complaint (whereby a Defence investigator and the wives of the Accused were charged with contempt of court). 5. Lead Counsel submit that they are likely to be called as witnesses in the contempt proceedings currently pending before Trial Chamber I, and that this fact “did not assist in strengthening the relationship between the Accused and their Legal Representatives.”2 6. They further submit that a potential Defence Witness and a clerk to Counsel for the co-Accused Kanu have been harassed by Military Police. In addition, they claim “that there is a signifĳicant threat of danger to their persons or family in the conduct of the Defence in this case.” According to them, “Counsel has

1 Brima and Kamara Defence Motion, 5 May 2005, para. 9. 2 Brima and Kamara Defence Motion, 5 May 2005, para. 10. 382 part ii been informed that all Court Appointed Lawyers who work for the Special Court are deemed to be party to a conspiracy to subvert the sovereignty of the Laws of Sierra Leone. In consequence thereof they and their families will be called upon to answer for their decision to accept Special Court Appointment.”3 Lead Counsel say that these threats were communicated to both Counsel from diffferent sources and that “[d]ue to the nature of these threats Counsel do not wish to reveal the said sources. Accordingly, Counsel are extremely concerned for their personal safety and feel it would be highly imprudent to place them in such a position of vulnerability.” Reference is also made to other threats to one of the Counsel, in the form of an overseas telephone call which implied danger to his family living overseas, and local telephone calls threatening him personally. 7. Lead Counsel, whose national Bar is the Bar of England and Wales, argue, in addition, that the withdrawal of instructions by their clients makes it impossible to carry out their duties under paragraphs 12.1 and 12.2(g) of the Bar Council Guidance on the Responsibilities of Defence Counsel which requires them “[to] endeavour to protect [their] client from conviction except by a competent tribunal and upon legally admissible evidence sufffĳicient to support a conviction for the offfence charged,” and “[to] ensure that [Counsel] has sufffĳicient instructions for the purpose of deciding which prosecution witnesses should be cross-examined.”4 8. Lead Counsel conclude their argument by stating as follows: “Accordingly, in the light of lack of instructions, harassment and threats articulated herein, the Defence submits that there is sufffĳicient cause for the Trial Chamber to approve the withdrawal of Counsel.”

Prosecution Submissions of 5 May 2005 9. The Prosecution submits that Defence Counsel should not be permitted to withdraw and should be directed to represent the Accused pursuant to Rule 60(B). 10. The Prosecution further submits that the Accused have instructed their Counsel to absent themselves from Court and to fĳile certain documents and that therefore Defence Counsel is acting upon instructions. These became operational when the Trial Chamber dismissed a Defence application for an adjournment to await the completion of contempt proceedings which are

3 Brima and Kamara Defence Motion, 5 May 2005, para. 15. 4 Brima and Kamara Defence Motion, 5 May 2005, para. 16. interlocutory decisions – trial chamber 383 currently pending before Trial Chamber I. According to the Prosecution, the instructions “are designed to efffect a boycott on the trial and obstruct the course of justice.” The Prosecution concludes that the current situation does not fall within the ambit of “most exceptional circumstances” in the sense of Rule 45(E), which it deems to be applicable in the present case. 11. The Prosecution further submits that the Code of Conduct of the Bar of England and Wales does not prevent Counsel from representing an Accused if directed by a Court to do so.

Principal Defender’s Submissions 12. The Principal Defender notes that she is not yet able to determine whether the possibility of being called as a witness in the contempt proceedings currently pending before Trial Chamber I might lead to exceptional circumstances warranting the withdrawal of Counsel for Brima. However, she does accept that this may be an exceptional circumstance for withdrawal in certain situations, although less drastic measures may be available. In the case of Lead Counsel for Kamara, she asserts that he will not be called as a witness in the contempt proceedings and so there is no basis for his withdrawal. 13. The Principal Defender submits that the refusal of an accused person to give counsel instructions does not constitute an exceptional circumstance justifying the withdrawal of counsel. She further submits that the Bar Council provisions cited by the Defence do not disallow Counsel to continue to represent the Accused. 14. The Principal Defender encourages the Trial Chamber to avoid a replacement of Counsel at this advanced stage of the proceedings, but cautions that an appointment of Counsel by the Court against the will of the Accused could irrepa- rably damage the relationship between Counsel and the Accused. 15. On the other hand, she “wholeheartedly accepts” that the security concerns of Counsel for Brima and Counsel for Kamara may constitute exceptional circumstances meriting their withdrawal. However, she avers that both Counsel “believe that their physical safety is less likely to be in jeopardy if they are not appearing in Court as ‘Assigned Counsel’ or ‘Court Appointed Counsel,’ ”5 but rather as ‘Amicus Counsel.’ According to the Principal Defender, this modifĳication in the status of Counsel could be based on Rules 54 and 60, and Art. 10 of the Directive on Assignment of Counsel.

5 Principle Defender’s Submission of 5 May 2005, para. 11. 384 part ii

16. The Principal Defender therefore requests the Trial Chamber to allow Counsel for Brima and for Kamara, and all of their team members, if they so choose, to be temporarily re-designated from ‘Assigned Counsel’ to ‘Amicus Counsel,’ until such time as they believe it is safe and efffective to return their designation to Assigned Counsel.

Prosecution Submissions of 9 May 2005 17. The Prosecution concedes that “threats made to any Counsel appearing before the Special Court are a matter to be taken extremely seriously.” It suggests that the threats against the two Defence Counsel should be investigated by the Special Court’s Security Section with a view to responding to the threats by appropriate means, which could include close protection. 18. However, the Prosecution disputes that the physical security of Counsel depends on the terminology used to describe their appointment. It suggests that the distinction between assigned and Court-appointed Counsel on the one hand and some other designation, such as “Amicus Counsel,” on the other, is likely to be of little moment to those who engage in the criminal action of threatening Counsel. 19. The Prosecution submits that the designation and duties of ‘Court Appointed Counsel’ guarantee the Article 17 rights of the accused and that there is no reason to depart from the established practice of the Special Court to establish a new spe- cies of Counsel called “Amicus Counsel.” 20. The Prosecution contends that the risk of a breakdown in the lawyer-client relationship following the imposition of ‘Court Appointed Counsel’ on an accused is merely speculative. 21. The Prosecution reiterates its position that nothing in the Written Stan- dards for the Conduct of Professional Work of the Bar of England and Wales prevents a member of that Bar from carrying out the duties of ‘Court Appointed Counsel.’

II. Deliberations

1. Note on Procedure and the Public Nature of this Decision 22. All submissions fĳiled by the Parties and the Principle Defender were marked as confĳidential, i.e. that they should not be disclosed to the public. We note and put emphasis on Rule 78 providing that “[a]ll proceedings before a Trial Chamber, other than deliberation of the Chamber, shall be held in public, unless otherwise provided.” We note that Defence Counsel do not provide reasons for interlocutory decisions – trial chamber 385 such confĳidentiality. We agree with Hon. Justice Boutet stating that “[…] all documents fĳiled before the Special Court should be public, as a matter of general principle, unless a cognant reason is offfered to the contrary.”6 Nevertheless, this decision does not reveal any of the specifĳics we assume should be kept confĳiden- tial, but only refers to them in a broader sense.

2. Procedural Background 23. All three Accused have chosen not to attend the proceedings. On 10 March 2005, a protected witness told the Trial Chamber that she had been threatened by some women in the Special Court Complex. Other information was given to the Trial Chamber by the Prosecution, whereupon the Trial Chamber made a direction to the Registrar under Rule 77(C)(iii) to appoint an experienced independent counsel to investigate the matter and report back to the Chamber as to whether there were sufffĳicient grounds for instigating contempt proceedings. The subjects of the investigation were to be fĳive persons, an investigator with the Brima Defence team and four women, three of whom are the wives of the Accused and one a friend. An interim order was made suspending the investigator and prohibiting the four women from attending the public gallery of the Court. The case was adjourned until 14 March 2005. 24. On 14 March 2005 the Principal Defender’s Offfĳice informed the Trial Chamber that another investigator was available as a replacement but was not accepted by the Brima Defence Team who stated that their client insisted on the services of the investigator who had been suspended. The Trial Chamber granted another adjournment until 5 April 2005 but ordered that the case must proceed on that date.7 25. On 5 April 2005 none of the three Accused came to Court. They wanted to see the independent counsel’s report to the Trial Chamber, but this had not been permitted. Defence counsel tendered a letter written to them by the Accused dated 4 April 2005 explaining their absence as follows: “Dear All assigned Counsel RE: Independent Investigator Report in the Alleged Witness Protection Breach We the Undermentioned which Comprised all accused person in the SLA/AFRC trial hereby inform you that the abovementioned report is of paramount concern to our families and ourselves, as it is an alleged threat on the liberty of our wives who are presently the respective head of our various household.

6 The Prosecutor v. Issan H. Sesay et al., Case No. SCSL-04-15-PT, Decision on the Motion by Morris Kallon for Bail, 23 February 2004, para. 19. 7 Transcript 14 March 2005, page 6, line 16–19. 386 part ii

Being that we have not heard anything from you or the registry, it leave us with no alternative, but to refuse to go to Court until we are informed about it in order to deside on our next step, because we consider our wives, investigators and ourselves to be one always. Faithfully always– Brima Kamara Khanu” 26. On 26 April 2005 Counsel for Kamara read to the Court another letter from all three Accused. It was dated 24 April 2005 and was addressed to the AFRC Defence Counsel, with copies to the Judges of Trial Chamber II, the Registrar, the Principal Defender, and reads as follows: “Dear Sir/Madam. This letter is not direct to be disrespectful to the Court or the judges. We have being detained unlawfully since 10th. March, 29 May and 17 September, 2003 respectively, and trial start 7th. March 2005. To help us go through the long trial and being locked-up is the presence of families in jail, and at court. In march 2005, the court made a decision to denied us our basic human rights and our constitutional rights not to see our families, and to have an investigator to help us build our defence. We have tried to deal with the decision of the Court in our own ways. We have reach brak- ing point and cannot continue anymore with all our human rights being taken from us. We do see how we could continue without the love of our families. We would rather not come and sufffer twice over by not seeing our families when we are in Court with the pressure all that bring. We have spoken to our families and told them we cannot go on any longer. It is because of that we are resufĳing(sic) to attend the court. Yours without bitterness Brima Kamara Khanu” 27. The Accused again did not come to Court on 29 April 2005. On that occasion, Counsel for Kamara told the Trial Chamber that the Accused had a number of complaints, such as, that they had formed the view that their case was not receiving due consideration, that a decision had already been reached as to their guilt, that there had been a systematic abuse of their rights, including the right to a fair trial, that they had not been able to see their wives in the public gallery, and that they had not had the proper service of an investigator. 28. The Accused were again absent from Court on 2 May 2005. Counsel read to the Trial Chamber the following letter from the three Accused: “02th.May 2005 ALL AFRC DEFENCE COUNSEL We the AFRC Detainees refuse going to court until the contempt matter involving our wives and our investigator (Brima Samura) is resolve. interlocutory decisions – trial chamber 387

If this matter is not resolved our instructed counsel are not to go to Court, we only give our Counsel limited instructions to and fĳile certain motions to the Appeals Chamber. Yours faithfully Brima Kamara Khanu” 29. The three Accused did not come to Court on 3 May 2005, and Counsel for Brima, Counsel for Kamara, and Co-counsel for Kanu all sought leave to withdraw from the case. The Trial Chamber ordered the fĳiling of a formal motion by 5 May 2005. Lead Counsel for Brima and Kamara subsequently fĳiled a motion seeking the Trial Chamber’s permission to withdraw from the case, but Counsel for Kanu requested, by motion, to be allowed to continue to represent their client.

3. Kanu Defence Motion The Defence for Kanu has clarifĳied its position by confĳirming that it will continue to represent the Accused. It is not necessary for the Trial Chamber to make any specifĳic orders in this regard.

4. Brima and Kamara Defence Motion 31. The application for the Trial Chamber to approve the withdrawal of Lead Counsel is governed by Rule 45(E), which states: 45 (E) Counsel will represent the accused and conduct the case to fĳinality. Failure to do so, absent just cause approved by the Chamber, may result in forfeiture of fees in whole or in part. In such circumstances the Chamber may make an order accordingly. Counsel shall only be permitted to withdraw from the case to which he has been assigned in the most exceptional circumstances. In the event of such withdrawal the Principal Defender shall assign another Counsel who may be a member of the Defence Offfĳice, to the indigent accused. 32. Rule 45(E) covers a diffferent situation than Rule 44(D). Rule 44(D) provides: (D) Any request for replacement of an assigned counsel shall be made to the Principal Defender. Under exceptional circumstances, the request may be made to a Chamber upon good cause being shown and after having been satisfĳied that the request is not designed to delay the proceedings. Rule 44(D) provides for a request by the Accused to withdraw his Counsel if he is not satisfĳied with Counsel’s services. Unlike Rule 45(E) subparagraph (D) requires the accused to demonstrate “exceptional circumstances” and good cause, compared to the “most exceptional circumstances” required in subparagraph (E). Thus there is a higher threshold where a Defence Counsel applies to withdraw from the case than in a case where an Accused requests a substitution of Counsel. 388 part ii

33. The wording of Rule 45(E) makes it clear that there is an obligation on Lead Counsel to “represent the accused and conduct the case to fĳinality” and that “the most exceptional circumstances” would need to be established in order to allow them to withdraw from the case. Nevertheless, while the Rule aims to limit the instances in which Counsel should be allowed to withdraw, it does recognise the possibility that circumstances may exist – albeit most exceptional – which would warrant the Trial Chamber permitting Counsel to withdraw.

Consideration of “The Most Exceptional Circumstances” Withdrawal of Instructions 34. Lead Counsel allude to “a signifĳicant amount of difffĳiculty between Counsel in the case and the Accused persons.” This difffĳiculty arises from a number of factors, by far the most serious of which is the problem of obtaining instructions from the Accused. Lead Counsel argue that “the withdrawal of instructions from all 3 accused persons makes it impossible to carry out [their] duty.”8 We accept that Lead Counsel are no longer receiving instructions from the Accused, other than instructions not to go to Court and to fĳile certain documents. However, in our view, it is well settled in the jurisprudence of the ad hoc Tribunals, that lack of instructions does not constitute “most exceptional circumstances” under Rule 45 (E) warranting the withdrawal of Counsel. 35. In the case of The Prosecutor v. Barayagwiza the ICTR found as follows:

As the Chamber observed in its decision of 25 October 2000, Mr. Barayagwiza does not lack confĳidence in his two awyers.l Neither does he argue that they are incompetent. The core of his argument is that he will not be given a fair trial. […]This allegation is without foundation. […] The Chamber fĳinds it obvious that Mr. Barayagwiza’s arguments do not constitute exceptional circumstances as required under Rule 45 (I). Rather, Mr. Barayagwiza is merely boycotting the trial and obstructing the course of justice. As such, the Chamber shall not entertain the request of the accused for the withdrawal of his counsel, on this basis. In the present case, Mr. Barayagwiza is actually boycotting the United Nations Tribunal. He has chosen both to be absent in the trial and to give no instructions as to how his legal representation should proceed in the trial or as to the specifĳics of his strategy. In such a situation, his lawyers cannot simply abide with his “instruction” not to defend him. Such instructions, in the opinion of the Chamber, should rather be seen as an attempt to obstruct judicial proceedings. In such a situation, it cannot reasonably be argued that

8 Brima and Kamara Defence Motion, 5 May 2005, 5 May 2005, para. 16. interlocutory decisions – trial chamber 389

Counsel is under an obligation to follow them, and that not do so would constitute grounds for withdrawal.9 36. The ICTR, in the case of The Prosecutor v. Bagosora, observed that: Appeals Chamber case law has emphasised that an accused does not have the right to unilaterally destroy the trust between himself and his counsel in the hope that such actions will result in the withdrawal of his counsel.10 37. We also approve the statement of the ICTY in the case of The Prosecutor v. Slobodan Milošević that: […] an accused cannot manufacture a reason for an Article 19(A) withdrawal by refusing to cooperate with his attorney.11 38. The jurisprudence of the international criminal tribunals is in compliance with international human rights standards as confĳirmed by Croissant v. Germany: It is for the Courts to decide whether the interests of justice require that the accused be defended by Counsel appointed by them. When appointing Counsel, the national courts must certainly have regard to the defendant’s wishes – However, they can override those wishes when there are relevant and sufffĳicient grounds for holding that this is necessary in the interest of justice.12 39. In line with Barayagwiza, we fĳind in the present case that, by withdrawing instructions from their counsel, the Accused are merely boycotting the trial and obstructing the course of justice. It is well established law that the inability of Counsel to obtain instructions from his client does not constitute “the most exceptional circumstances” within the meaning of Rule 45(E).

Testimony of Counsel for Brima and Kamara in Proceedings before Trial Chamber I 40. Another factor claimed by Lead Counsel to be creating difffĳiculties in the relationship with their clients is the possibility that they will be called as witnesses in the two contempt proceedings involving a Defence investigator and the wives of the Accused respectively. In this regard, we note the Principal Defender’s claim that Counsel for Kamara will not be called as a witness in such proceedings.

9 The Prosecutor v. Jean-Bosco Barayagwiza, Case No. ICTR-97-19-T, Decision on Defence Counsel Motion to Withdraw, 2 November 2000, para. 14 fff. 10 The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T, Decision on Maitre Paul Skolnik’s Application for Reconsideration of the Chamber’s Decision to Instruct the Registrar to Assign him as Lead Counsel for Gratien Kabiligi, 24 March 2005, para. 21. 11 The Prosecutor v. Slobodan Milošević, Decision Afffĳirming the Registrar’s Denial of Assigned Counsel’s Application to Withdraw, 7 February 2005, para. 10. 12 Croissant v. Germany, European Court of Human Rights, Case No. 62/1001/314/385, Judgment, 25 September 1992. 390 part ii

The fĳirst of the contempt proceedings was concluded before Trial Chamber I on 9 May 2005, and neither Counsel was required to give evidence. The second contempt proceedings will resume on 27 June 2005, and whether either Lead Counsel will be called to give evidence in that case remains to be seen. In any event, Lead Counsels’ claim is that they are concerned “about the potential difffĳiculties surrounding the position of Counsel who, on any view, are likely to be called as witnesses in the pending Contempt Proceedings. This singular fact did not assist in strengthening the relationship between the Accused and their Legal Representatives.” 41. In addition, during the course of the proceedings, Lead Counsel foreshad- owed a potential conflict of interest arising should they have to give evidence. However, what this conflict would be and why it would arise has not been made clear to us, particularly when it is considered that the present trial and the contempt proceedings before Trial Chamber I are two separate, independent proceedings. It may even prove the case that Counsel will not be required to give evidence at all, and, in any event, there is certainly no indication that they would be required to give evidence for the Prosecution. 42 We can understand Lead Counsels’ concerns that the anticipated testimony has afffected their relationship with their clients. However, they have not established any reason why the anticipated testimony would afffect their capacity to act as Counsel in the present trial. In the circumstances, we fĳind that the anticipated testimony of Lead Counsel in contempt proceedings before Trial Chamber I do not constitute “the most exceptional circumstances” under Rule 45(E). Code of Conduct of the Bar of England and Wales 43. Lead Counsels’ submissions regarding the conflict with their Bar Rules should they be ordered to continue to act for the Accused are set out in paragraph 7 above. 44. Under Rule 44(B), Counsel is subject, amongst other things, to the Statute, the Rules, and the codes of practice and ethics governing their profession. Rules 44(B) states:

In the performance of their duties counsel shall be subject to the relevant provisions of the Agreement, the Statute, the Rules, the Rules of Detention and any other rules or regulations adopted by the Special Court, the Headquarters Agreement, the Code of rofessional Conduct and the codes of practice and ethics governing their profession and, if applicable, the Directive on the Assignment of Defence Counsel. 45. Under Article 17(4)(d) of the Statute, an accused is entitled to have legal assistance assigned to him in any case where the interests of justice so require. Article 17(4)(d) is in the following terms: interlocutory decisions – trial chamber 391

4. In the determination of any charge against the accused pursuant to the present Statute, he or she shall be entitled to the following minimum guarantees, in full equality: […] d. To be tried in his or her presence, and to defend himself or herself in person or through legal assistance of his or her own choosing; to be informed, if he or she does not have legal assistance, of this right; and to have legal assistance assigned to him or her in any case where the interests of justice so require, and without payment by him or her in any such case if he or she does not have sufffĳicient means to pay for it; 46. Rule 26bis imposes on the Trial Chamber an obligation to “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 and due regard for the protection of victims and witnesses.” The rights of the accused which the Trial Chamber must have regard to include the right to legal assistance. To ensure that this right is preserved, the Trial Chamber may, under Rule 60(B) appoint Counsel to represent an accused who refuses to come to court or, under Rule 45(E), the Trial Chamber can refuse permission for Counsel to withdraw from a case. 47. In our opinion, a counsel could not possibly be in breach of his Bar Code by continuing to act for a client where the Trial Chamber, in the interests of justice and to protect the rights of the accused, makes an order under laws to which the counsel is subject in the performance of his duties, compelling him to remain assigned to the accused, or directing him to represent the accused. 48. We fĳind that Lead Counsels’ subjective concerns that they may be in breach of their Bar Code are not such exceptional circumstances as to allow them to withdraw from the case. 49. It follows from what has been said that there can be no doubt that Lead Counsel have experienced some serious difffĳiculties in their relationship with their clients. In such circumstances, we approve the statement by the ICTY’s President in Milosevic, that: “Representing criminal defendants is not an easy task. Assigned Counsel would do well to recognize that fact, to realize the breadth of activities that they can carry out even in the absence of [their client’s] cooperation, and to continue making the best professional effforts on [their client’s] behalf that are possible under the circumstances.”13 50. Although the lawyer/client relationship is far from satisfactory, it has not completely broken down, since there are still some communications between

13 The Prosecutor v. Slobodan Milošević, The President’s Decision Afffĳirming the Registrar’s Denial of Assigned Counsel’s Application to Withdraw, 7 February 2005, para. 13. 392 part ii them, and Lead Counsel pass on information to the Court on behalf of the Accused. Given the complex nature of the relationship between Lead Counsel and their clients, we fĳind that the difffĳiculties discussed above, although serious, are not, by themselves, so exceptional as to warrant the withdrawal of Counsel. 51. If such difffĳiculties were Lead Counsels’ only arguments, then the Motion must fail. However, there is an additional element to this prayer for relief which causes us grave concern, and that is the threats made to Lead Counsel and their families. Threats to Lead Counsel and their Families 52. The threats referred to are detailed in Lead Counsels’ submissions in paragraph 6 above. We are not aware of any guidelines from other international courts on the appropriate measures a Trial Chamber ought to adopt in such a situation. 53. One of the consequences of the Report on Intimidation of Defence Lawyers in Northern Ireland by the U.N. Special Rapporteur Param Cumaraswamy, which recommended an independent judicial inquiry into the 1989 murder of a prominent defence lawyer, was that Human Rights Organisations stressed the need for lawyers to be able to practice “unhindered in their duties by abusive treatment.”14 54. The United Nations Basic Principles on the Role of Lawyers recommends measures that Governments can take to protect lawyers.15 Article 16 provides that “Governments shall ensure that lawyers are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference.” Article 17 states: “Where the security of lawyers is threatened as a result of discharging their functions, they shall be adequately safeguarded by the authorities.” 55. In the present case we do not think that close protection – as suggested by the Prosecution – will allay the fears of Lead Counsel and we do not think it is the answer. We presume that since Lead Counsel did not want to reveal their said sources, they therefore did not apply for investigations into these

14 Report of the Special Rapporteur on the independence of judges and lawyers, Mr. Param Cumaraswamy, submitted pursuant to Commission on Human Rights resolution 1997/23, E/CN.4/1998/39/Add.4, 5 March 1998. The Report was endorsed by fĳive of the world’s leading international human rights organizations: Amnesty International, the International Commission of Jurists, Human Rights Watch, the International Federation of Human Rights, and the Lawyers Committee for Human Rights, see E/CN.4/Sub.2/1998/NGO/2. 15 Adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offfenders, Havana, Cuba, 27 August to 7 September 1990. interlocutory decisions – trial chamber 393 allegations by the Security Section of the Special Court or other possible measures to ensure their safety in Sierra Leone. 56. We are not alone in our grave concerns for the safety of Lead Counsel and their families. The Defence submitted that there is “a signifĳicant threat of danger to their persons or family;”16 the Principal Defender accepted “wholeheartedly […] that [security concerns] may be an exceptional circumstance for withdrawal;”17 and the Prosecution conceded that “[t]hreats made to any Counsel appearing before the Special Court are a matter to be taken extremely seriously.”18 57. As can be seen from their submissions, Lead Counsel are sufffĳiciently worried by the threats to move the Trial Chamber for orders allowing them to withdraw from the case. We do not think that they have made that application lightly. They are experienced barristers fully aware of their professional obligations to their clients and to the Court. They perceive a danger to their families or themselves if they continue to act for the Accused. We are unable to say that their perception is wrong. 58. We must bear in mind that, unlike the ICTY, ICTR and ICC, this trial is taking place in the country where the alleged offfences are said to have occurred, and this gives rise to substantial security concerns. We are therefore of the view that the fears of Lead Counsel are justifĳied. 59. Taken individually, we fĳind that the arguments put forward by Lead Counsel regarding their difffĳiculties, i.e. that their clients won’t come to court, that their clients will not give them instructions, that there is a deteriorating relationship, not helped by the possibility that they may be called to give evidence in contempt proceedings against the clients’ wives, that they see themselves acting, in the circumstances, against the principles of their own Bar Code, do not constitute “the most exceptional circumstances” warranting the withdrawal of Counsel. However, when all of these problems are considered together with the threats hanging over their heads, the cumulative result, in our view, creates an intolerable situation which places Lead Counsel under an impossible burden. 60. The Accused are charged with crimes of a most serious nature. They are entitled to the best Counsel available, Counsel who can fully dedicate themselves to their demanding task. We are of the view that Lead Counsel, with their present difffĳiculties, would not be capable of acting in the best interests of their clients.

16 Brima and Kamara Defence Motion, 5 May 2005, para. 15. 17 Principle Defender’s Submission, 5 May 2005, para. 9. ii. 18 Prosecutions Submission, 9 May 2005, para. 12. 394 part ii

We doubt that they would be able to represent their clients to the best of their ability when, apart from everything else, they are concerned for their own safety and that of their families. Although we are loath to come to a decision which possibly may adversely afffect an expeditious trial, we are of the view that the rights of the Accused to be represented by counsel would best be served by appointing counsel able to carry out their duties free of the constraints inhibiting present Lead Counsel. 61. Accordingly, we fĳind that the cumulative efffect of all of these factors constitutes “the most exceptional circumstances” under Rule 45(E), warranting Lead Counsel to withdraw from the case. 62. Because the present case is peculiar in that there are a number of elements that go toward establishing the most exceptional circumstances, there is probably no reasonable likelihood of similar situations arising in the future. In any event, we do not go so far as to say that threats made to counsel would, in every case, satisfy the test of “the most exceptional circumstances” required by Rule 45(E). Each case would need to be decided on its individual merits.

5. Further Considerations 63. We reject the suggestion by the Principal Defender that Lead Counsel be re- designated as “Amicus Counsel.” An “Amicus Counsel” is not recognised by the Rules, although Rule 74 makes provision for Amicus Curiae. Amicus Curiae is not, of course, a party to the case. We therefore fĳind that the suggestion is totally inappropriate and would involve the Trial Chamber’s participation in a sham in which the Amicus Curiae were really the Counsel for the Accused. 64. Pursuant to Rule 45(E), we grant Lead Counsel permission to withdraw from the case. This does not leave the Accused Brima and Kamara without representation. They would still have Co-Counsel who are part of the Defence team to represent them pending appointment of new Lead Counsel. In fact, in the absence of Lead Counsel, the Accused Brima and Kamara have repeatedly been represented by Co-Counsel.19 On one of these occasions, Co-Counsel told the Trial Chamber that they were sufffĳiciently able and competent to carry on with the trial in the absence of Lead Counsel.20 Indeed, we have no doubts as to their competence. Furthermore, the Defence has stated in Court that it has a unifĳied Defence strategy, and it has often been the case so far that oral Motions and submissions in

19 Lead Counsel for Brima and Kamara were absent with the consent of their clients on the following trial days: 7 to 11 March 2005, 5 to 11 April 2005; Additional absence of Lead Counsel for Kamara: 12 to 14 April 2005. 20 Transcripts, 5 April 2005, page 9. interlocutory decisions – trial chamber 395 court have been made by one counsel on behalf of all Accused. In this regard, we note that Lead Counsel for the Accused Kanu and his Defence team are still in the case. 65. We therefore conclude that the Accused Brima and Kamara would sufffer no prejudice if they were to be temporarily represented by their respective co-counsel. 66. Where an accused refuses to come to Court, the Trial Chamber has the power under Rule 60(B) to direct Counsel to represent him. Rule 60 provides: (A) An accused may not be tried in his absence, unless: i. the accused has made his initial appearance, has been affforded the right to appear at his own trial, but refuses so to do; or ii. the accused, having made his initial appearance, is at large and refuses to appear in court. (B) In either case the accused may be represented by counsel of his choice, or as directed by a Judge or Trial Chamber. The matter may be permitted to proceed if the Judge or Trial Chamber is satisfĳied that the accused has, expressly or impliedly, waived his right to be present. 67. We fĳind it appropriate to follow the decision of the Appeals Chamber of this Court in Gbao, in which it approved the following procedure: Where an accused is present in court but refuses to participate in the proceedings because he does not recognize the court and requests that his counsel do not participate for the same reason, the court should treat the accused as an absent accused and exercise its powers as if Rule 60 applied. Applying that Rule, it would be inconsistent with the position taken by such accused to expect the accused to profffer a choice to be represented, in terms of Rule 60 (B), “by counsel of his choice.” The appropriate thing for the court to do in such circumstances is to ensure that the accused is represented, also in terms of Rule 60 (B), as directed by the Trial Chamber. In these circumstances, the Trial Chamber, comprising professional judges, proceeds in the knowledge and awareness that counsel is acting without instructions from the accused when it directs that counsel continue to provide representation whether as “assigned counsel” or “court appointed counsel.” While Rule 60 (B) could have been drafted to indicate various options open to the Judge or Trial Chamber in terms of the type of representation, this is left to the Judge or Trial Chamber’s discretion.21 68. We note that Rule 45(E) provides that “[i]n the event of such withdrawal the Principal Defender shall assign another Counsel …” This may or may not cause regrettable delays. Nevertheless, we note that this Court has established a Defence Offfĳice for exactly these situations. It is the duty of the Defence Offfĳice to support new Counsel and to introduce them to the case.

21 The Prosecutor v. Augustine Gbao, Case No. SCSL-0415-AR73, Gbao – Decision on Appeal Against Decision on Withdrawal of Counsel, 23 November 2004, para. 52. 396 part ii

69. We are of the view that the rights of the Accused – in particular their right to be tried without undue delay as enshrined in Article 17(4)(c) of the Statute – would best be served by directing Co-Counsel pursuant to Rule 60(B) to represent the Accused on an interim basis until the respective Defence teams are complete again through the assignment of new Lead Counsel.

III. Disposition

For All of These Reasons The Trial Chamber therefore: Grants the Motion for the withdrawal of Lead Counsel Kevin Metzger and Wilbert Harris as Counsel for the Accused Brima and Kamara respectively; Orders as follows: The Trial Chamber i. Permits the Lead Counsel for Alex Tamba Brima to withdraw from the case to which he has been assigned; ii. Permits the Lead Counsel for Brima Bazzy Kamara to withdraw from the case to which he has been assigned; iii. Directs the Principal Defender to assign another counsel as Lead Counsel to Alex Tamba Brima; iv. Directs the Principal Defender to assign another counsel as Lead Counsel to Brima Bazzy Kamara; v. Being satisfĳied that the Accused have waived their rights to be present at Court pursuant to Rule 60(B), directs that the Accused Alex Tamba Brima be represented by Co-Counsel Glenna Thompson and Kojo Graham; vi. Further directs that the Accused Brima Bazzy Kamara pursuant to Rule 60(B) be represented by Co-Counsel Mohamed Pa-Momo Fofanah; vii. Refuses the request of the Principal Defender that Lead Counsel and co- counsel for Alex Tamba Brima and Lead Counsel and co-counsel for Brima Bazzy Kamara be temporarily re-designated from assigned counsel to Amicus Curiae; viii. Notes that Lead Counsel and Co-Counsel for the Accused Santigie Borbor Kanu will continue to represent their clients. The above orders were delivered in an oral majority decision of the Trial Chamber on 12 May 2005. Hon. Justice Julia Sebutinde will deliver a separate dissenting opinion. Done at Freetown, Sierra Leone, this 20th day of May 2005. TRIAL CHAMBER II

Before: Justice Teresa Doherty, Presiding Judge Justice Richard Lussick Justice Julia Sebutinde Registrar: Robin Vincent Date: 10 June 2005 PROSECUTOR Against Alex Tamba Brima Brima Bazzy Kamara Santigie Borbor Kanu (Case No.SCSL-04-16-T)

CORRIGENDUM DECISION ON THE CONFIDENTIAL JOINT DEFENCE APPLICATION FOR WITHDRAWAL BY COUNSEL FOR BRIMA AND KAMARA AND ON THE REQUEST FOR FURTHER REPRESENTATION BY COUNSEL FOR KANU

Office of the Prosecutor: Defence Counsel for Alex Tamba Brima: Luc Côté Glenna Thompson Lesley Taylor Kojo Graham Defence Counsel for Brima Bazzy Kamara: Mohamed Pa-Momo Fofanah Defence Counsel for Santigie Borbor Kanu: Geert-Jan Alexander Knoops Carry Knoops Abibola E. Manly-Spain 398 part ii

TRIAL CHAMBER II (“Trial Chamber”) of the Special Court for Sierra Leone (“Special Court”), composed of Justice Teresa Doherty, presiding Judge, Justice Richard Lussick and Justice Julia Sebutinde; NOTING the majority Decision on the Confĳidential Joint Defence Application for Withdrawal by Counsel for Brima and Kamara and the Request for Further Representation by Counsel for Kanu, dated 20 May 2003; CONSIDERING that the last sentence of the preamble should read as follows: RECALLING FURTHER that the Trial Chamber handed down oral orders on 12 May 2005 due to the urgency and importance of this matter and indicated that a reasoned decision would follow in due course; FOR THE FOREGOING REASONS, PURSUANT to Rule 54 of the Rules of Procedure and Evidence of the Special Court, ORDERS that the Decision be amended as set out above. Done at Freetown this 10th day of June 2005. TRIAL CHAMBER II

Before: Justice Teresa Doherty, Presiding Judge Justice Richard Lussick Justice Julia Sebutinde Registrar: Robin Vincent Date: 8 August 2005 PROSECUTOR Against Alex Tamba Brima Brima Bazzy Kamara Santigie Borbor Kanu (Case No.SCSL-04-16-T)

SEPARATE AND DISSENTING OPINION OF JUSTICE SEBUTINDE IN THE DECISION ON THE CONFIDENTIAL JOINT DEFENCE APPLICATION FOR WITHDRAWAL BY COUNSEL FOR BRIMA AND KAMARA AND ON THE REQUEST FOR FURTHER REPRESENTATION BY COUNSEL FOR KANU

SEPARATE AND DISSENTING OPINION OF JUSTICE SEBUTINDE 1. I have had the benefĳit of reading and digesting the Majority “Decision on the Confĳidential Joint Defence Application for Withdrawal for Withdrawal by Counsel for Brima and Kamara and on the Request for Further representation by Counsel for Kanu” fĳiled on 23 May 2005 (“the Majority Decision”). Subject to paragraphs 3–5 of this opinion, I agree with the facts leading to the Brima and Kamara Defence Motion and Kanu Defence Motion as summarised in paragraphs 23 to 29 of the Majority Decision. I do not agree with the comments of my colleagues in paragraph 22 of the Majority decision with respect to Defence Counsels’ submissions. As I recall, the Trial Chamber in its Order issued inter-partes on 6 May 2005, required “all documents” fĳiled pursuant to this matter, (including the Defence submissions) “to remain confĳidential.” 1 The Trial Chamber issued that Order in order to address the security concerns raised by Defence Counsel at that time. That confĳidentiality has since not been lifted. As such, I think that in light of the said Order, it would be superfluous to require Defence Counsel or indeed the Prosecution, to provide again the reasons for confĳidentiality in their written submissions. 2. Furthermore I wish to point out a few more material facts omitted from paragraph 29 of the Majority Decision, which facts are in my view, relevant in putting into perspective the Brima and Kamara Defence Motion; the Kanu Defence Motion and the oral application for withdrawal by Co-Counsel for the accused Santigie Borbor Kanu.2 Tha additional facts are narrated in paragraphs 3–5 below. 3. As correctly narrated in paragraph 29 of the Majority Decision, when all three accused persons did not turn up in court on 3 May 2005, Lead Counsel for the accused Alex Tamba Brima3 and Brima Bazy Kamara4 as well as Co-Counsel for the accused Santigie Borbor Kanu5 each indicated a desire to withdraw from the conduct of their respective client’s case. At that time, Counsel orally indicated the reasons for the intended withdrawal as including “the partial withdrawal of instructions by each of their respective clients” as indicated in the Letters quoted in paragraphs 25, 26 and 27 of the Majority Decision. In addition Counsel orally indicated to the Trial Chamber that their respective Defence teams had experienced “certain security threats” which Counsel were not willing to disclose in open court, which threats had caused each of the concerned Counsel to seriously contemplate withdrawal from representing his client. At that stage the Trial

1 AFRC Transcript of 6 May 2005, page 15, lines 14–23 2 See oral submissions by Manly-Spain, Transcript of 3 May 2005, page 3, line 15–18. 3 Mr. Kevin Metzger 4 Mr. Wilbert Harris 5 Mr. Abibola Manly-Spain interlocutory decisions – trial chamber 401

Chamber requested Defence Counsel if they so wished, to fĳile a formal Motion for withdrawal, ex-parte, indicating amongst others, the alleged “security threats.” The Trial Chamber similarly requested the Principal Defender to fĳile submissions ex-parte in relation to Defence Counsel’s Motion for withdrawal. Thus far Counsel had given the Trial Chamber the impression that they had taken a common stand as far as their intended withdrawal was concerned. It is also note worthy that on the 3 May 2005 when Co-Counsel for the Accused Santigie Borbor Kanu6 made his oral submissions to Court, Lead Counsel for Santigie Borbor Kanu7 was not in court due to other commitments abroad. Subsequently, in compliance with the Trial Chamber’s order, Lead Counsel for the Accused Alex Tamba Brima and Brima Bazzy Kamara fĳiled their “Confĳidential Joint Defence Submissions on the Withdrawal of Counsel in the AFRC Case” (“the Brima and Kamara Defence Motion”). Co-Counsel for the Accused Santigie Borbor Kanu8 did not join in this motion nor fĳile his own written submissions as ordered by the Trial Chamber. 4. Instead, on 4 May 2005 Lead Counsel for Santigie Borbor Kanu9 fĳiled the “Confĳidential, Ex-parte and Under Seal Kanu-Defence Motion to Inform the Trial Chamber on the Legal Position of the Defence in View of the Contempt of Court Developments”10 (“the Kanu Defence Motion”). In that Motion, Lead Counsel indicated to the Trial Chamber that certain developments outlined in paragraph 15 thereof had caused “the Kanu Defence team” to take a stand separate from that of the Brima and Kamara Defence teams and to reconsider the team’s earlier position with regard to the intended withdrawal by Counsel. Lead Counsel then made the requests set out in paragraph 1 of the Majority Decision. 5. In light of the above facts, I take the view in my dissenting opinion, that Co-Counsel for the Accused Santigie Borbor Kanu11 having chosen not to fĳile a written Motion or submissions for his own withdrawal as earlier ordered by the Trial Chamber, has chosen not to pursue his earlier position or grounds with regard to his intended withdrawal. I further take the view that Co-Counsel’s earlier position regarding his intended withdrawal is in fact superseded by the position expressed by Lead Counsel in the Kanu Defence Motion on behalf of the entire Kanu Defence team. This view on my part also has a bearing on my assessment of the submissions contained in paragraphs 12 and 13 of the Brima and Kamara Defence Motion as I shall illustrate later.

6 Mr. Abibola E. Manly-Spain 7 Mr. Geert-Jan A. Knoops 8 Mr. Abibola E. Manly-Spain 9 Mr. Geert-Jan A. Knoops 10 Document No. SCSL-2004-16-T-244 11 Mr. Abibola E. Manly-Spain 402 part ii

6. It is in the context of the above background that I agree with the stand taken by my colleagues in paragraph 30 of the Majority Decision to make no specifĳic orders with regard to the Kanu Defence Motion. 7. I agree with the conclusions of my colleagues in paragraphs 39, 42 and 50 of the Majority Decision. However I take a dissenting view with regard to the approach taken and conclusions drawn by my colleagues with regard to whether the threats to Lead Counsel Kevin Metzger and Wilbert Harris constitute “the most exceptional circumstances” required under Rule 45(E) of the Rules for the grant of leave to Counsel to withdraw. In particular, I am of the considered opinion that although Mr. Kevin Metzger and Mr. Wilbert Harris fĳiled their submissions for withdrawal “jointly,” the Trial Chamber ought to examine the case for each applicant separately in order to accurately and efffectually assess whether or not each of them has established the most exceptional circumstances justifying his withdrawal from the conduct of his lay client’s defence under Rule 45(E) of the Rules. In my view, the omnibus approach taken in the Majority Decision whereby all grounds pleaded jointly in the Brima and Kamara Defence Motion are collectively attributed to both Assigned Counsel presupposes that the circumstances and grounds pertaining to the withdrawal of Mr. Kevin Metzger are identical to those pertaining to the withdrawal of Mr. Wilbert Harris, which they clearly are not. The fact that each of the Assigned Counsel in the Brima and Kamara Defence Motion signed his own Legal Services Contact upon engagement,12 lends credence to the view that each application by Assigned Counsel for withdrawal under Rule 45(E) ought properly to be assessed individually, even where that application or submissions in support thereof happens to be fĳiled “jointly” with another. In this regard I depart from the approach taken by my colleagues throughout the Majority Decision whereby they appear to examine the collective case for Defence Counsel and keep on referring to “Lead Counsel” collectively. I intend in this dissenting opinion to examine and assess where necessary the applications for withdrawal by Mr. Kevin Metzger and Mr. Wilbert Harris separately and individually, notwithstanding that they were fĳiled “jointly.” 8. I am of the considered opinion that each of the respective Lead Counsel for the Accused Alex Tamba Brima and Brima Bazzy Kamara has in their joint application fallen far short of the very high standard required under Rule 45(E) of the Rules of Procedure and Evidence of the Special Court for Sierra Leone (“the Rules”) and has not established “the most exceptional circumstances” justifying his withdrawal from the conduct of his lay client’s case. In this regard I wish to emphasise that the standard of proof required under Rule 45(E) of the Rules is like no other

12 See paragraph 1 of the Principal Defender’s Confĳidential Ex-parte Submission Regarding Issues Pertaining to Withdrawal of Counsel fĳiled on 5 May 2005, Document No. SCSL-2004-16-T-249. interlocutory decisions – trial chamber 403 under the Rules, in that it requires the applicant to establish not just “exceptional circumstances” but rather “the most exceptional circumstances” justifying his or her withdrawal (emphasis added). This exceptionally high standard of proof is incumbent upon Assigned Counsel by virtue of his statutory duty and undertaking under Rule 45(E) of the Rules to diligently represent the accused and in his best interests to conduct the case to fĳinality. The obligation upon an Assigned Counsel representing a criminal suspect before an International Criminal Tribunal such as the ICTY, ICTR or Special Court is peculiarly distinct from that of his counterpart representing an ordinary criminal suspect in a domestic criminal court. Due to the serious and complex nature of the cases involved, an Assigned Counsel is under a continuing professional duty and obligation to “diligently represent the accused and in his best interests to conduct the case to fĳinality” even where the accused is uncooperative. That duty is aptly described in the words of the President of the ICTY in the case of the Prosecutor v. Slobodan Milosevic13 quoted in paragraph 49 of the Majority Decision. 9. In my view, the Trial Chamber in exercising its discretion under Rule 45(E) and determining whether or not Assigned Counsel should be permitted to withdraw, stands as guardian (rather than arbiter) to safeguard and uphold the rights and minimum guarantees accorded to the accused under Article 17 of the Statute of the Special Court and to ensure throughout the conduct of the trial, from start to fĳinish, that the withdrawal of Assigned Counsel will not compromise the integrity of the proceedings nor jeopardise the interests of justice and a fair trial. In my view the Trial Chamber’s role in determining a withdrawal application under Rule 45(E) is akin (though not identical) to the role of the Principal Defender’s Offfĳice under Article 24(A)(i) of the SCSL Directive on the Assignment of Counsel, when determining a request from the accused or Assigned Counsel for withdrawal. In this regard I fĳind in dealing with the issues at hand, that the submissions contained in paragraphs 8 and 9(i) to (iii) of the Principal Defender’s Confĳidential Ex-parte Submission Regarding Issues Pertaining to Withdrawal of Counsel14 are quite instructive even though the Brima and Kamara Defence Motion was not fĳiled under Article 24(A)(i) of the SCSL Directive on the Assignment of Counsel. In her assessment of the situation, the Principal Defender is of the view that the withdrawal of Assigned Counsel is in the circumstances not in the interests of justice and that if it were in her power to so order she would in addressing the concerns of the applicants opt for “less drastic measures than withdrawal.”15 Be that as it may, I will comment on the appropriateness or otherwise of the

13 The President’s Decision afffĳirming the Registrar’s Denial of Assigned Counsel’s Application to withdraw of 7 February 2005, at paragraph 13. 14 Ibid. 15 Ibid., paragraph 9(i) and (ii) 404 part ii

“measures” proposed by the Principal Defender, in the ensuing paragraphs of this dissenting opinion. 10. Before I give my analysis and assessment of the threats to Counsel, I wish to make additional comments on some of the issues at stake. The main grounds for the withdrawal motion were fourfold, namely: (i) Lack of cooperation from and withdrawal of instructions by their clients, the accused persons; (ii) Potential conflict of interest arising from the likelihood of Counsel appearing as witnesses in contempt proceedings associated with the trial proceedings in the case of The Prosecutor v. Alex Tamba Brima et al.;16 (iii) Potential breach of the Code of Conduct of the Bar of England and Wales to which Counsel belong; and (iv) Threats to Lead Counsel and their families. 11. I would like to stress that I agree with the reasoning and conclusion of my colleagues in paragraphs 34 to 50 the Majority Decision, to the efffcet that none of the fĳirst three grounds indicated above constitute “the most exceptional circumstances” warranting the withdrawal of Counsel under Rule 45(E) of the Rules. I do however disagree with the reasoning and conclusions in paragraph 51 and 59 to the efffect that “when all of these problems are considered together with the threats hanging over their heads, the cumulative result creates an intolerable situation which places Lead Counsel under an impossible burden” warranting their withdrawal. 12. I wish to distinguish the several incidents referred to by Counsel as comprising “threats to themselves and their families.” These three incidents can be summarized as follows: (i) A “potential Defence Witness” was allegedly arrested by the Military Police and his premises searched; (ii) A Clerk to a Defence Counsel on the Kanu Defence Team was allegedly apprehended by Military Police who conducted a search of his premises; (iii) Lead Councel for the accused Brima and Kamara received threats from undisclosed sources allegedly directed against all Court-appointed Counsel working at the Special Court; and (iv) Lead Counsel Harris received three anonymous telephone calls allegedly threatening his own safety and that of his family.

16 Case No. SCSL-2004-16-T interlocutory decisions – trial chamber 405

13. As far as the fĳirst two incidents are concerned, Counsel have not substantiated these allegations nor have they shown the nexus or connection between the alleged incidents and the conduct of this trial. More importantly, neither Mr. Metzger nor Mr. Harris have shown to the satisfaction of the Trial Chamber how these two incidents relate to them as Counsel nor how they afffect their ability to perform their duties towards their clients. As such, the Trial Chamber remains in doubt as to exactly who was involved in these incidents; why the incidents took place; how the incidents are related to the conduct of this trial or how they afffect the ability of Counsel to perform their statutory duties towards their clients. It is difffĳicult to see how threats to persons other than the concerned Counsel can afffect the conduct of his defence. In view of all these unanswered questions I am of the considered opinion that the incidents complained of cannot constitute “most exceptional circumstances” under Rule 45(E). 14. With regard to the third incident, namely “threats from undisclosed sources allegedly directed against all Court-appointed Counsel working at the Special Court,” again these have not been substantiated before the Trial Chamber. In their submission Counsel state that: “Due to the nature of these threats Counsel do not wish to reveal the said sources.”17 More importantly since these threats are allegedly directed at “Court-Appointed Counsel” only, it is not clear how the threats are supposed to afffect or apply to Mr. Metzger or Mr. Harris, none of whom is a Court- appointed Counsel. Again Counsel failed to show how this particular threat is directed at them or how the threat prevents them carrying out their statutory duties as assigned counsel. On the contrary Counsel submitted that “none of the threats emanated from the accused persons.” My own view is that where Counsel receives a threat specifĳically directed at him or her by virtue of his or her duties at the Special court, rather than “throwing in the towel,” concerned Counsel should immediately bring such matters to the attention of the relevant security departments the Special Court with a view to having the threats investigated, substantiated and remedied. Counsel did not take this option in this case and have instead chosen to “throw in the towel.” However, in view of the very high standard of proof required by Rule 45(E) it is my considered opinion that in referring to the third incident quoted above without substantiating the threats or showing how they relate to the applicants, neither Mr. Metzger nor Mr. Harris have proved “the most exceptional circumstances” warranting their withdrawal. 15. This brings me to the last incident, namely several anonymous telephone calls to Mr. Harris allegedly threatening his own safety and that of his family. Obviously these threats were directed to Mr. Harris and not Mr. Metzger so the latter cannot rely on them in his application for withdrawal. It should also be

17 Submission of Brima and Kamara, para. 15. 406 part ii remembered that shortly before Mr. Harris received these alleged anonymous calls, he had written a series of articles in some local Sierra Leonean newspapers in which he revealed his status as Defence Counsel for the accused in this case. In so doing Mr. Harris has potentially exposed himself to such threats and it is therefore not inconceivable that a disenchanted person may have targeted him after reading the newspaper articles. Counsel are no doubt, aware of the potentially politicized environment in which the Special Court and they operate without the added influence of newspaper articles. If the alleged threats to Mr. Harris are true, which I cannot assess with the evidence before me, than I see them in context with the articles of Mr. Harris in various Sierra Leone newspapers and not particularly on account of carrying out his statutory duties towards his client. More importantly, even if these threats were purely on account of Mr. Harris’s statutory duty towards his client, he has not demonstrated that they pose an actual and present danger to life and limb of either himself or his family. In my opinion, before a threat can constitute “the most exceptional circumstance” under Rule 45(E) the applicant must demonstrate not only “actual and present danger to life and limb” but in addition must show that the relevant security organs of the Court have failed to investigate the threats and remedy the situation. Mr. Harris did not report this matter to the relevant security organs of the court and merely states in his submissions that “Counsel is content that this incident is noted”! Perhaps this is an indication of how seriously Mr. Harris himself regards the alleged threats. Be that as it may, I fĳind that Mr. Harris cannot rely on the last incident as constituting “the most exceptional circumstances” warranting his withdrawal form the trial. 16. As mentioned already, I am not in a position to assess whether the threats against counsel are true or false. My colleagues argue that: “They are experienced barristers fully aware of their professional obligations to their clients and to the Court” and that they are unable to say that their perception is wrong. It seems to me that my colleagues have more faith and confĳidence regarding the facts provided by counsel without a scintilla of independent proof. I do not believe that that is the standard set by Rule 45(E). Furthermore I have alluded above to less drastic measures than withdrawal, that could be employed to address the alleged threats to Counsel and would recommend so. 17. Lastly I would like to observe especially with regard to Mr. Metzger, Lead Counsel for the Accused Alex Tamba Brima that this particular accused person has had a lot of disruptions with regard to his defence Counsel and should be given a chance to stabilize. Mr. Terence Michael Terry who was originally Mr. Brima’s assigned Counsel, passed away in 2004 soon after taking up assignment. Thereafter, Mr. Metzger took over as Mr. Brima’s assigned Counsel. Hardly a year has passed before Mr. Metzger applies to withdraw. In my opinion it would be interlocutory decisions – trial chamber 407 contrary to the interests of justice to allow Mr. Metzger to withdraw from the case which is in its advanced stages. 18. For all the above reasons I fĳind that neither Mr. Metzger nor Mr. Harris have demonstrated “the most exceptional circumstances” warranting their withdrawal pursuant to Rule 45(E) of the Rules and would dismiss their Motion in its entirety. 19. Before I take leave of this matter I must say that I associate with the comments of my colleagues in paragraph 63 of the Majority decision, with regard to the Principal Defender’s proposal. 20. In the interests of expediting proceedings I hereby authorize the Court Management section to publish this Dissenting Opinion during the court recess. Done at Freetown, Sierra Leone, this 8th day of August 2005.

TRIAL CHAMBER II

Before: Justice Teresa Doherty, Presiding Judge Justice Richard Lussick Justice Julia Sebutinde Registrar: Robin Vincent Date: 24 May 2005 PROSECUTOR Against Alex Tamba Brima Brima Bazzy Kamara Santigie Borbor Kanu (Case No.SCSL-04-16-PT)

DECISION ON JOINT DEFENCE MOTION TO EXCLUDE ALL EVIDENCE FROM WITNESS TF1-277 PURSUANT TO RULE 89(C) AND/OR RULE 95

TRIAL CHAMBER II (“Trial Chamber”) of the Special Court for Sierra Leone (“Special Court”), composed of Justice Teresa Doherty, presiding, Justice Richard Lussick and Justice Julia Sebutinde; SEISED of the Confĳidential and Under Seal Joint Defence Motion to exclude all evidence from Witness TF1-277 pursuant to Rule 89(C) and/or Rule 95 fĳiled on 11 March 2005 on behalf of Brima, Kamara and Kanu (“Motion”); DECIDES AS FOLLOWS based solely on the written submissions of the parties pursuant to Rule 73(A) of the Rules of Procedure and Evidence of the Special Court (“Rules”).

I. Submissions of the Parties

The Motion 1. This is a Joint Defence Motion asking the Trial Chamber to exclude the evidence of Witness TF1-277 in its entirety or, alternatively, to exclude that part pertaining to hearsay evidence given at the trial on March 7 and 8, 2005. An objection to the hearsay evidence made by the Defence at the trial was overruled as premature, as it had not then been tested by cross-examination. The witness was subsequently cross-examined by all three Defence counsel. 2. The Defence refers particularly to the evidence of the Witness that he was present when a Mr. SAJ Alieu reported to the Witness’s uncle that a person referred to as “55” shot a woman named Zainab. It is submitted that this testimony should be excluded because of its context and character, and particularly in view of the prior inconsistent statement given by the Witness to a Prosecution investigator. 3. The Defence submits that the assertion of the Witness that he was present during the making of a report from a second person to a third person factually amounts to a form of indirect hearsay. The Defence points out that it was not established that the other two persons were not available as witnesses. The admission of hearsay evidence in such a form, it is submitted, may seriously afffect the administration of justice pursuant to Rule 95. 4. In support of this submission, the Defence relies on two particularities. Firstly, The Defence says that the inconsistencies between the Witness’s prior written statement and his evidence given in court are material, in that the former states that he saw the particular shooting, while in the latter he alleges that he heard about the shooting while listening to a conversation between two other persons. Secondly, the Defence points to the existence of two so-called “will-say” statements, both of which were unsigned and one of which says of the Witness that “he clarifĳied the circumstances surrounding the killing of Zainab by “55”. without interlocutory decisions – trial chamber 411 providing any further details. The Defence submits that the said statements cannot be considered as “clarifĳication.” Further, it is submitted that in the light of these specifĳic circumstances, it cannot even be said that the evidence given by the Witness qualifĳies as “any relevant evidence” as meant by Rule 89(C).

The Response 5. In response, the Prosecution argues that hearsay evidence is admissible and evaluated according to its probative value. It is submitted that reliability is not a separate requirement for admissibility. Further, Rule 89(C) requires only that the evidence be relevant to be admissible. 6. The Prosecution goes on to submit that the evidence of the Witness is both probative and reliable. It points to the evidence that the Witness was present and heard the entire report given by SAJ Alieu to the Witness’s uncle. It argues that the fact that he was not the addressee of the report is immaterial and that the evidence is not a particular subspecies of hearsay called “indirect” hearsay evidence. 7. The Prosecution also submits that any inconsistency that arises is not between the oral evidence and the fĳirst written statement, but between the statement dated 4 September 2003 and the Interview Note dated 17 February 2005, in which the Witness corrected the earlier statement. 8. As to the Defence reference to two unsigned “will-say” statements, the Prosecution submits that these statements do amount to clarifĳication or correction of the fĳirst written statement and that the absence of a signature does not mean that they are not statements within the meaning of Rule 66(A)(i). 9. The Prosecution concludes its Response by contending that the Defence have failed to establish any prejudice to the Accused, have failed to show how the admission of the evidence would bring the administration of justice into serious disrepute pursuant to Rule 95 and that the Defence Motion should be dismissed in its entirety. The Reply 10. It is submitted in the Joint Defence Reply that hearsay evidence should be restricted to instances where difffĳiculties in obtaining fĳirst hand evidence exist. Given the fact that the Prosecution has not shown that the two persons engaged in the conversation overheard by the Witness are not available to be called as witnesses, the Defence contends that the hearsay evidence of the Witness is not admissible. 11. In respect of Rule 89(C), the Defence says that a logical interpretation of the word “relevant,” which is not defĳined in the Rules, includes the requirement of probative value. 412 part ii

II. Deliberations

12. It is well settled in the practice of international tribunals that hearsay evidence is admissible. Under the Rules, the Trial Chamber has a broad discretion to admit relevant hearsay evidence. Rule 89, which is not restrictive in its provisions,1 states: (A) The rules of evidence set forth in this Section shall govern the proceedings before the Chambers. The Chambers shall not be bound by national rules of evidence. (B) In cases not otherwise provided for in this Section, a Chamber shall apply rules of evidence which will best favour a fair determination of the matter before it and are consonant with the spirit of the Statute and the general principles of law. (C) A Chamber may admit any relevant evidence. 13. Rule 89(C), under which evidence need only be relevant to be admissible, is in broader terms than the equivalent provisions of the ICTY and ICTR Rules, which require that evidence be both relevant and probative. 14. We approve and adopt the interpretation given to Rule 89(C) by the Appeal Chamber of this Court in the Fofana Bail Appeal Decision stating: “Rule 89(C) ensures that the administration of justice will not be brought into disrepute by artifĳicial or technical rules, often devised for jury trial, which prevent judges from having access to information which is relevant. Judges sitting alone can be trusted to give second hand evidence appropriate weight, in the context of the evidence as a whole and according to well-understood forensic standards. The Rule is designed to avoid ster- ile legal debate over admissibility so the court can concentrate on the pragmatic issue […].2” 15. It is clear that the admission of hearsay evidence is not indicative of a fĳinding as to its probative value. In the Akayesu Appeal Judgement the Appeals Chamber of the ICTR held that the admission of hearsay evidence does not automatically carry any particular fĳinding as to its assessment.3 The fact that a Trial Chamber admits hearsay does not imply that it accepts it as reliable and probative. The probative value of hearsay evidence is something to be considered by the Trial Chamber at the end of the trial when weighing and evaluating the evidence as a whole, in light of the context and nature of the evidence itself, including the credibility and reliability of the relevant witness.4 This principle was also followed by the Appeals Chamber of this Court in Fofana, in which it held that:

1 Prosecutor v. Sam Hinga Norman et al., Case No. SCSL-04-14-AR65, Fofana – Appeal against Decision Refusing Bail, 11 March 2005, para. 22. 2 Ibid., para. 26. 3 Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-A, Appeals Chamber, Judgment, 1 June 2001, para. 292. 4 John R.W.D. Jones & Steven Powles, International Criminal Practice (Third Edition), Oxford University Press 2003, para. 8.5.654. interlocutory decisions – trial chamber 413

“Evidence is admissible once it is shown to be relevant: the question of its reliability is determined thereafter, and is not a condition for its admission.”5 16. In the present case, the hearsay evidence complained of by the Defence relates to crimes allegedly committed by a person known as “55”, which is an alternative name given to one of the Accused in the Further Amended Consolidated Indictment. So, in our view, the evidence is relevant. 17. However, the Defence argues that the evidence should be excluded because, if admitted, it may seriously afffect the administration of justice pursuant to Rule 95 because, fĳirstly, it amounts to “indirect hearsay” and, secondly, that the Prosecution did not establish that the other two persons engaged in the conversation were not available to give evidence. 18. Firstly, we disagree with the submission by the Defence that the passage of evidence complained of amounts to a form of “indirect hearsay.” The evidence of the Witness was that he was present when the person named SAJ Alieu told the uncle about the shooting of Zainab. In those circumstances, it defĳies all logic to argue that the fact that the remarks were not directed personally at the Witness renders the hearsay evidence inadmissible. 19. Secondly, in our opinion, it was not strictly necessary for the Prosecution to establish that the other two persons engaged in the conversation were not available to give evidence. This is a not a matter which would afffect the admissibility of the Witness’s evidence, but goes to its weight to be determined thereafter. 20. The Defence has made reference to material inconsistencies between the Witness’s prior written statement and his sworn evidence. This, in our view, would not afffect the admissibility of either the sworn evidence or the prior written statement. In the Akayesu case, the ICTR Trial Chamber was confronted with the problem of alleged inconsistencies between the oral testimonies of witnesses and pre-trial statements that were composed of interview notes not made in English which had to be translated from the indigenous language of the witness.6 The Trial Chamber decided that the issue was one of probative value and not of admissibility. 21. In any event, we fĳind that this argument from the Defence has no basis, since it is clear from the evidence that the inconsistency was not between the prior written statement and the sworn testimony of the Witness, but between the said statement (Exhibit D1) and the Interview Note dated 17 February 2005

5 Prosecutor v. Sam Hinga Norman et al., Case No. SCSL-04-14-AR65, Fofana – Appeal against Decision Refusing Bail, 11 March 2005, para. 24. 6 Prosecutor v. Jean Paul Akayesu, Case No ICTR-96-4-. Trial Chamber, Judgment, 2 September 1998, para. 137. 414 part ii

(Exhibit D1A), in which the Witness made corrections to the earlier statement, one of which was that “I did not actually see “55” shoot Zainab. Zainab and her boyfriend, Sajalieu, an SLA, were sitting on the verandah in the house across from where I was staying. When “55” shot Zainab, Sajalieu ran into the house where I was staying and explained that “55” had shot Zainab. I looked through the door and saw “55” as he was walking away.”7 22. The Defence submission that the two so-called “will-say” statements, both of which are unsigned, cannot amount to relevant evidence under Rule 89(C) is contrary to the ruling of Trial Chamber I that “a statement can be “anything that comes out of the mouth of a witness” regardless of the format. By parity of reasoning, the fact that a statement does not contain a signature, or is not witnessed does not detract from its substantive validity.”8 23. We fĳind that these two documents fall within that defĳinition and are statements relevant to other evidence given by the Witness and are therefore admissible. Consequently, we reject that particular Defence submission. 24. We hold that the hearsay evidence given by the Witness is relevant evidence and is therefore admissible evidence under Rule 89(C). We fĳind that the Defence has not made out a case for the exclusion of that evidence, let alone for the exclusion of the Witness’s evidence in its entirety. Nor has anything been put before us which would justify the conclusion that the admission of the evidence would bring the administration of justice into serious disrepute pursuant to Rule 95. On the contrary, the evidence in our view is so clearly relevant that the judicial process would be brought into disrepute by excluding it.9 FOR THESE REASONS The Trial Chamber dismisses the Motion. Done at Freetown this 24th day of March 2005.

7 Exhibit D 1a, Interview Notes of the Offfĳice of the Prosecutor, dated 17 February 2005, Court Records Case File Page No. 6816. 8 Prosecutor v. Norman et al., SCSL-04-14-T, Decision on Disclosure of Witness Statements and Cross-Examination, 16 July 2004, paras. 22 to 24 incl. 9 Prosecutor v. Sam Hinga Norman et al., Case No. SCSL-04-14-AR65, Fofana – Appeal against Decision Refusing Bail, 11 March 2005, para. 27. TRIAL CHAMBER II

Before: Justice Teresa Doherty, Presiding Judge Justice Richard Lussick Justice Julia Sebutinde Registrar: Robin Vincent Date: 25 May 2005 PROSECUTOR Against Alex Tamba Brima Brima Bazzy Kamara Santigie Borbor Kanu (Case No.SCSL-04-16-T)

DECISION ON THE CONFIDENTIAL JOINT DEFENCE MOTION TO DECLARE NULL AND VOID TESTIMONY-IN-CHIEF OF WITNESS TF1-023

TRIAL CHAMBER II (“Trial Chamber”) of the Special Court for Sierra Leone (“Special Court”), composed of Justice Teresa Doherty, presiding, Justice Richard Lussick and Justice Julia Sebutinde; SEISED of the “Confĳidential Joint Defence Motion to Declare Null and Void Testimony-in-Chief of Witness TF1-023 due to Violation of Rule 75 and 79,” fĳiled on 14 March 2005 on behalf of all three Accused in this Trial (“Motion”); CONSIDERING the Prosecution Response, fĳiled on 4 April 2005, and the defence Reply, fĳiled on 8 April 2005 (“Response”); DECIDES AS FOLLOWS based solely on the written submissions of the parties pursuant to Rule 73(A) of the Rules of Procedure and Evidence of the Special Court (“Rules”).

I. Submissions of the Parties

1. The Defence submits that the Trial Chamber, contrary to Rule 79(B) of the Rules, did not make public the reasons for going into closed session on 10 March 2005. It further contends that the Trial Chamber extended the scope of the underlying protective measures granted to witness TF1-023, ordered by Trial Chamber I by ordering the said closed session on 10 March 2005. Consequently, the Defence requests that the portion of the testimony of witness TF1-023 given in closed session on 10 March 2005 be declared null and void. 2. The Prosecution submits in response that the closed session was ordered in response to an extraordinary situation as the witnesses notifĳied the Trial Chamber that she had been threatened the previous day. In such extraordinary situations, the Prosecution submits, the Court may rely upon its inherent jurisdiction rather than referring the matter to the Trial Chamber which had previously granted the protective measures to the witness. It was in the interest of justice to act immediately to protect a witness. Further the Defence has not suf- fered any prejudice as a result of the alleged procedural breaches and therefore the relief sought is wholly disproportionate and should therefore be dismissed in its entirety. 3. The Defence in its Reply restated its previous submission and replied to the Prosecution response stating “an underlying situation cannot be qualifĳied as extraordinary” and/or since closed sessions are “created for extraordinary situations” the Court is not exempt from its obligation under Rule 79(B). The Defence further submits the ruling varies an order of Trial Chamber I and therefore is in breach of Rule 75(F)(i) and (G). The inherent jurisdiction of the Court cannot be as “easily” invoked as the Prosecution submits. The relief, having in mind Rule 75 is proportionate. interlocutory decisions – trial chamber 417

II. Deliberations

Reasons for closed Session 4. On 10 March 2005 the Trial Chamber deemed it to be necessary to go into closed session, as witness TF1-023 informed the Judges of being threatened on 9 March 2005. The Presiding Judge ordered a closed session and gave the reasons only shortly later, viz “The reason this closed session has been called is because of the serious nature of the allegations”1. 5. Rule 79(B) of the Rules provides “[the] Trial Chamber shall make public the reasons for its order.” This is a mandatory provision but does not specify when such reasons are to be made public. In particular it does not stipulate that they are to be stated at the time the order is pronounced. 6. Rule 79(B) imposes a mandatory obligation on the Trial Chamber to make public the reasons for its order, that is to make the reasons known. In contrast to Rule 79(A), the obligation is not to make the reasons known to “the press and the public.” The obligation under 79(B) is wide, it obliges the Trial Chamber “make public the reasons” viz to have a reason made on record and publicly available. 7. Further, if there is a defect, it can be cured by compliance with Rule 79(B) by the Trial Chamber publicising its reason. 8. The Trial Chamber notes that no exception was taken by Defence Counsel at the time the Trial Chamber ordered a closed session. In fact Defence Counsel permitted the witness to be examined in chief without objection. At the end of examination in chief, all Defence Counsel evinced an intention to cross-examine but not at that time. They indicated that leave of the Court would be sought at a later date to recall the witness. This Trial Chamber considers and holds that the clear decision on the part of Defence Counsel to permit examination in chief to continue and indicate that they would seek leave to cross-examine at a later date knowing they would later apply to have the evidence adduced in closed session declared null and void is not in keeping with the professional standards this Court expects of Counsel in their duty to the Court. 9. The Trial Chamber adopts the words of the ICTR in the Prosecutor v. Casmir Bizimungu that “parties should act diligently and expediously whenever there is an alleged violation of the Rules.”2 Further, the relief requested by the

1 Transcripts, 10 March 2005, page 6 line 3. 2 The Prosecutor v. Casimir Bizimungu et al., Case No. ICTR-99-50-T, Decision on Prosper Mugiraneza’s Motion for Appropriate Relief for Violation of Rule 66 (TC), 4 February 2005, para. 10. 418 part ii

Defence interferes with the Court’s duty pursuant to Rule 89(B) to apply rules of evidence which will best favour a fair determination of the matter before it and are consonant with the spirit of the Statute and the general principles of law. 10. In efffect Defence Counsel seeks to have part of the evidence adduced in examination in chief expunged from the record. 11. As noted, the Defence did not raise an objection at the time notwithstanding the provisions of Rule 5 of the Rules of Procedure and Evidence: “Where an objection on the ground of non-compliance with the Rules or Regulations is raised by a party at the earliest opportunity, the Trial Chamber or the Designated Judge may grant relief if the non-compliance has caused material prejudice to the objecting party.” 12. The Defence does not adduce any evidence to show material prejudice was caused to any accused by the order for a closed session that could be a basis for the remedy sought in this Motion. They rely on an alleged breach of Rules 79(B) and 75(F)(i) and (G). 13. Rule 5 obliges an objecting party to: (1) raise the objection at the earliest opportunity and (2) show that the non-compliance has caused material prejudice before relief may be granted. The Defence has not complied with either of these pre-conditions nor have they explained their non-compliance.

Authority of Trial Chamber II to order Closed Session 14. Rule 54 gives a Judge or the Trial Chamber the power to issue such orders as may be necessary for the conduct of the trial. Rule 54 provides: “At the request of either party or of its own motion, a Judge or a Trial Chamber may issue such orders, summonses, subpoenas, warrants and transfer orders as may be necessary for the purposes of an investigation or for the preparation or conduct of the trial.” 15. Further, the Defence submitted that the Trial Chamber had no authority to order a closed session, as such authority was with Trial Chamber I pursuant to Rule 75(G)(i) of the Rules and further Rule 75(H) did not apply. We consider there is no validity in this argument, and to hold otherwise could lead to cumbersome delays in the proper running of both Trial Chambers of the Special Court. 16. The provisions for closed sessions are contained in Rules 75(B)(ii) and Rule 79. Rule 75(A) deals with the provisions for protection of witnesses and allows a interlocutory decisions – trial chamber 419

Trial Chamber to order a closed session as one of several protective measures to “prevent disclosure to the public or the media of the identity or whereabouts of a victim or witness.” Variations of protective measures are provided in Rule 75(G) and applications must be made to the Chamber “remaining seized of the fĳirst proceeding.” The decision to order protection of a witness by way of a closed session must be implemented in accordance with Rule 79. The powers to order a closed session in Rule 79 are independent of Rule 75. Rule 79 vests powers in “[T] he Trial Chamber” – that is the Trial Chamber hearing a case – to order the exclusion of the press and the public. It is distinguished from “any Chamber, however constituted, remaining seized of the fĳirst proceedings” as provided for in Rule 75(G). 17. In their response, Prosecution submit that in any event the Motion seeks a remedy entirely “disproportionate to the alleged mischief.”3 In support they point to the lack of evidence of any prejudice sufffered by the Defence as a result of the alleged breach. In reply Defence argues “violation of this Rule in itself, according to the apparent purpose of the drafters, causes prejudice to the Accused.”4 And “[T]he fact that the order was consistent with Rule 17 […] does not prevent the invocation by the Defence of Rule 79(B) and/or Rule 75.”5 18. We do not see the relevance of Rule 17; it may be the Counsel intended a reference to Article 17 of the Statute of the Special Court of Sierra Leone. Neither Party refers the Trial Chamber to any precedent or authority holding that the doctrine of proportionality applies to remedies for alleged breach of procedure in the International Criminal Tribunals. The doctrine is more commonly applied in argument and decisions relating to enforcement of human or constitutional rights. However, given the continuing development of the jurisprudence of the International Criminal Tribunals we are of the opinion that the Trial Chamber is entitled to ask itself the question whether the expunging of evidence – not challenged by cross-examination or as a breach of procedure at the time it was adduced – is a proportionate remedy for an alleged breach of a procedural provision. 19. The concept of proportionality involves a court weighing up the remedy sought to the alleged breach or wrong sufffered. 20. Defence say (we assume) that there was a breach of Article 17 of the Statute but do not say which of the several rights enshrined therein was breached or why the only remedy must be expunging of evidence.

3 Prosecution Response, para. 9. 4 Defence Reply, para. 19. 5 Ibid. 420 part ii

21. We consider the Trial Chamber may look at the application and interpretations of international treaties and conventions by other International Courts. The Trial Chamber is entitled to consider the jurisprudence of other jurisdictions, a practice commonly adopted by the International Criminal Tribunals.6 We note the similarity of the provisions of Article 17 of the Statute to Article 6 of the European Convention of Human Rights (ECHR). We draw a contrast to Article 17(2) of the Statute and Article 6(1) of the ECHR both providing for a “fair and public hearing.” Article 17(2) of the Statute is “subject to measures ordered by the Special Court for the protection of victims and witnesses” and Article 6(1) of the ECHR empowers a Court to exclude the press and public for reasons enumerated therein. 22. Cases show that Article 6(1) of the ECHR has to be given a broad and purposive interpretation.7 Article 6(1) of the ECHR was considered by the English House of Lords in R v. A (No.2) 2002, 1 A. C.45. The Court observed that: “[…] it is well established that the right to a fair trial in Article 6 is absolute. […] The only balancing permitted was in respect of what the concept of a fair trial entails; account may be taken of the familiar triangulation of the interests of the accused, the victim and society. In that context proportionality has a role to play.” The criteria for determining the test of proportionality have been analysed in similar terms in the case law of the European Court of Justice and the European Court of Human Rights. 23. We consider that the Trial Chamber may consider if the remedy sought is proportionate to the mischief alleged. In the circumstances of this case, the expunging of evidence for an alleged breach of a procedural rule is disproportionate, particularly as it was not challenged at the time and was cured. Further, we note Rule 5 does not specify what relief the Trial Chamber may grant and we consider such relief must be proportionate to any material prejudice caused. In any case, no material prejudice has been established by the Defence, and thus there are no grounds for granting relief. 24. We note the duty imposed on the Trial Chamber to consider the rights of the accused and the victim. We endorse the rulings of other International Criminal Tribunals which emphasise the rights of the accused. However, in the context before us we consider that:

6 The Prosecutor v. Dragoljub Kunarac et al., Case No. IT-96-23, Trial Chamber, Judgement, 22 February 2001, para. 454 fff.; The Prosecutor v. Ferdinand Nahimana et al., Case No. ICTR-99-52-T, Trial Chamber, Judgement and Sentence, 3 December 2003, para. 1074 fff. 7 E.g. Moreiva de Azvedo v. Portugal, 13 E.H.R.R. 721, at para. 66 interlocutory decisions – trial chamber 421

(1) there was no breach of Rule 75 or 79(B), (2) the Defence did not comply with Rule 5 to invoke the Trial Chamber powers to grant relief, and (3) in any event the remedy sought is disproportionate to any alleged breach. FOR THESE REASONS The Trial Chamber dismisses the Motion. Justice Julia Sebutinde gives a separate dissenting opinion. Done at Freetown this 25th day of May 2005.

TRIAL CHAMBER II

SEPARATE AND DISSENTING OPINION OF JUSTICE SEBUTINDE IN THE DECISION ON THE CONFIDENTIAL JOINT DEFENCE MOTION TO DECLARE NULL AND VOID THE TESTIMONY OF WITNESS TF1-023

Office of the Prosecutor: Defence Counsel for Alex Tamba Brima: Luc Côté Glenna Thompson Lesley Taylor Kojo Graham Defence Counsel for Brima Bazzy Kamara: Andrew Daniels Mohamed Pa-Momo Fofanah Defence Counsel for Santigie Borbor Kanu: Geert-Jan Alexander Knoops Carry Knoops Abibola E. Manly-Spain 424 part ii

TRIAL CHAMBER II (“Trial Chamber”) of the Special Court for Sierra Leone (“Special Court”), composed of Justice Teresa Doherty, presiding, Justice Richard Lussick and Justice Julia Sebutinde; SEISED of the Prosecution Request for Leave to Call an Additional Witness Pursuant to Rule 73bis(E), fĳiled on 6 July 2005; (“Motion”); NOTING the Kanu-Defence Response to Prosecution Request for Leave to Call an Additional Witness Pursuant to Rule 73bis(E), fĳiled on 8 July 2005; NOTING the Brima – Defence Response to Prosecution Request for Leave to Call an Additional Witness Pursuant to Rule 73bis(E), fĳiled on 11 July 2005; NOTING the Joint Reply to Kanu and Brima – Defence Response to Prosecution Request for Leave to Call an Additional Witness Pursuant to Rule 73bis(E), fĳiled on 13 July 2005; HEREBY DECIDES AS FOLLOWS based solely on the written submissions of the parties pursuant to Rule 73(A) of the Rules of Procedure and Evidence of the Special Court (“ Rules”).

I. Submissions of the Parties

Prosecution 1. The Prosecution requests the Trial Chamber to allow the inclusion of an additional witness, Lt. Col. John Petrie, to testify as to the identity of the Accused Brima and Kanu. 2. The Prosecution further requests permission from the Trail Chamber to disclose to the Defence the statement of Lt. Col. John Petrie, pursuant to Rule 66(A)(ii). 3. According to the Prosecution, the witness would prove that the Accused Brima was also known as “Gullit,” and that the Accused Kanu was also known as “55”. 4. The Prosecution submits that the Defence will sufffer no unfair prejudice if the witness is allowed to be called, since the issue of identity was raised by the Defence and it must therefore expect that the Prosecution will bring evidence to establish the diffferent names by which the Accused were known. 5. The Prosecution states that it had hoped that the issue of identifĳication could have been resolved in a more expeditious manner than by calling an overseas witness. However, the unanticipated absence of the Accused from the courtroom during the evidence of witnesses who could have identifĳied the Accused has made an in-court identifĳication impossible. 6. Furthermore, the Prosecution submits that the issues of the time which it has known of the proposed evidence and due diligence have little weight when interlocutory decisions – trial chamber 425

compared with the relevance and materiality of that evidence to facts in issue, the absence of prejudice to the Accused and the overall interests of justice.

Defence – Kanu 7. The Kanu Defence submits that the Prosecution have not established “good cause,” nor that the calling of the additional witness would be “in the interests of justice,” and that the Prosecution Request should therefore be denied. 8. The Kanu Defence points out that the additional witness once worked for the Offfĳice of the Prosecution and submits that it is not in the interests of justice to call a witness who is a member of one of the parties to the case. 9. It submits that even if it were to be established that Kanu could be afffĳiliated with the code “55”, this would not be conclusive evidence that Kanu was the “55” who committed certain crimes and held a particular position. Therefore, the Prosecution has failed to show that the circumstances being argued to show good cause are directly related and material to the facts in issue. 10. The Kanu Defence further submits that the fact that Kanu was, amongst others, referred to as “55” is not “new evidence,” since he is referred to as such in the indictment. 11. It is also submitted that the evidence of the proposed witness could have been made available at an earlier point in time and that the Prosecution has not exercised due diligence in bringing it forward. 12. The Kanu Defence maintains that the Prosecution has failed to establish any of the criteria for the calling of additional witnesses established by Trial Chamber 1 in Sesay.1

Defence – Brima 13. The Brima Defence associates itself, mutatis mutandi, with the legal arguments and submissions made by the Kanu Defence.

Joint Prosecution Reply 14. The Prosecution argues that the previous employment of the proposed witness does not render him “one of the parties to the case.” Further, the proposed witness is being called in his capacity as a former Commanding Offfĳicer of the RSLAF Joint Provost Unit as part of IMATT, and not as a former employee of the Offfĳice of the Prosecutor. 15. The Prosecution says that the proposed evidence is relevant because its case is that the code name “55” applied exclusively to Kanu and that Brima is also

1 Prosecutor v. Sesay, Kallon, Gbao, Case No. SCSL-15-T, Decision on Prosecution Request for Leave to Call an Additional Expert Witness, 10 June 2005. 426 part ii

known as “Gullit.” Given the nature of his evidence, a dock-identifĳication is unnecessary.

II. Deliberations

GRANTS/DISMISSISES the Motion. Done at Freetown this 8th day of June 2005.*

* Editors’ Note: The month stated in this decision is an error; it should read August instead. TRIAL CHAMBER II

Before: Justice Teresa Doherty, Presiding Judge Justice Richard Lussick Justice Julia Sebutinde Registrar: Robin Vincent Date: 9 June 2005 PROSECUTOR Against Alex Tamba Brima Brima Bazzy Kamara Santigie Borbor Kanu (Case No.SCSL-04-16-T)

DECISION ON THE EXTREMELY URGENT CONFIDENTIAL JOINT MOTION FOR THE RE-APPOINTMENT OF KEVIN METZGER AND WILBERT HARRIS AS LEAD COUNSEL FOR ALEX TAMBA BRIMA AND BRIMA BAZZY KAMARA AND DECISION ON CROSS MOTION BY DEPUTY PRINCIPAL DEFENDER TO TRIAL CHAMBER II FOR CLARIFICATION OF ITS ORAL ORDER OF 12 MAY 2005

1st Respondent Defence Counsel for Alex Tamba Brima: The Registrar Glenna Thompson Kojo Graham 2nd Respondent Defence Counsel for Brima Bazzy Kamara: The Acting Principal Defender Mohamed Pa-Momo Fofanah Defence Counsel for Santigie Borbor Kanu: Geert-Jan Alexander Knoops Carry Knoops Abibola E. Manly-Spain 428 part ii

TRIAL CHAMBER II (“Trial Chamber”) of the Special Court for Sierra Leone (“Special Court”), composed of Justice Teresa Doherty, presiding, Justice Richard Lussick and Justice Julia Sebutinde; SEISED of the Extremely Urgent Confĳidential Joint Motion for the Re-Appoint- ment of Kevin Metzger and Wilbert Harris as Lead Counsel for Alex Tamba Brima and Brima Bazzy Kamara, Pursuant to Articles 17(4)(C) and 17(4)(D) of the Statute of the Special Court for Sierra Leone and Rule 54 of the Rules of Procedure and Evidence and the Inherent Jurisdiction of the Court, fĳiled on 24 May 2005 (“Motion”) on behalf of the Accused Brima and Kamara; NOTING that the Motion names the Registrar as First Respondent and the Acting Principal Defender as Second Respondent; NOTING the Defence Offfĳice’s Response to the Motion, fĳiled on 30 May 2005 (“Defence Offfĳice Response”), which was entitled as “Reply” and which included a Cross Motion by the Principal Defender to Trial Chamber II for Clarifĳication of its Oral Order of 12 May 2005 and its subsequent Decision dated 20 May 2005 (“Cross Motion”); NOTING FURTHER that this Defence Offfĳice Response incorporated statements of the Deputy Principle Defender and a Legal Offfĳicer of the Defence Offfĳice; NOTING the Response of the Registrar to the Motion, fĳiled on 31 May 2005 (“Registrar’s Response”); NOTING the Joint Defence Reply to the Registrar’s Response, fĳiled on 3 June 2005 (“Defence Reply”); NOTING the Registrar’s Response to the Cross Motion, fĳiled on 6 June 2005; NOTING the Defence Offfĳice’s Reply to the Registrar’s Response to the Cross Motion, fĳiled on 7 June 2005; NOTING the various corrigenda to the submissions that were fĳiled by the parties; DECIDES AS FOLLOWS.

I. The Submissions of the Parties

MOTION 1. Counsel for Alex Tamba Brima and Brima Bazzy Kamara seek the following orders: i. “In the first place, based on the foregoing arguments, the Defence herewith respectfully prays the Trial Chamber to order the Registrar to ensure interlocutory decisions – trial chamber 429

that Mr. Metzger and Mr. Harris are re-assigned as Counsel for Accused persons Brima and Kamara. ii. In the second place, an order to the Acting Principal Defender to immediately enter into a legal services contract with Mr. Metzger and Mr. Harris. iii. In the third place, that the Justices that re-confĳirmed the order not to re-appoint as indicated in the letter from the Registrar’s Legal Advisor recluse (sic) themselves from hearing this present Motion. iv. In the fourth place, an order to declare as null and void the decision of the Registrar not to re-assign Counsel as the decision was made without legal or just cause and therefore ought to be quashed accordingly and set aside. v. In the fifth place, any other relief the Trial Chamber may deem fĳit and appropriate in the circumstance.” 2. The Motion purports to set out a chronology of events leading up to this application. Reference is made to the application fĳiled on May 5, 2005, by Lead Counsel for Brima and Kamara wherein the Trial Chamber was requested to: (a) approve the withdrawal of Counsel as Counsel for the accused, (b) not order that Counsel hitherto on record be made Court Appointed Counsel and (c) make any order that the Trial Chamber deems appropriate. Although the responses are recited, no mention is made of the order of the Trial Chamber of 12 May 2005 when the Trial Chamber by a majority decision granted leave to both Counsel to withdraw. 3. The Motion refers to a letter dated May 12, 2005 written by the Accused to the Principal Defender and to subsequent meetings held between the Defence Offfĳice and the Accused, but fails to mention that the said letter was not revealed to the Trial Chamber until 16 May 2005, on which day the Trial Chamber ruled: “This Court read an order on an application. The application was an application to withdraw. That order was made and any letters, correspondence or documents that seek to go behind that decision cannot be countenanced in this Court. The decision has been made.” 4. The Defence submits that the decision of the Registrar refusing the re- appointment of the two Lead Counsel is in breach of the rights of the Accused persons to have counsel of their “own choosing” as provided for in Article 17(4)d of the Statute of the Special Court. 5. The Defence further submits that in matters relating to the assignment of defence counsel, an accused has a right to be consulted regarding his wishes and that the Registrar may only refuse those wishes “on reasonable and valid grounds.” It submits that reasonable and valid grounds are those which may occasion withdrawal, non-appointment or reinstatement of Counsel, including 430 part ii proven incompetence or misconduct, serious violation of the Code of Conduct, or where the name of the Assigned Counsel has been removed from the list kept by the Principal Defender under Rule 45(C) and Article 13 of the Directive on the Assignment of Counsel. The reasons stated in the Registrar’s letter, it is submitted, do not constitute reasonable and valid grounds for not reinstating Lead Counsel. 6. The Defence goes on to argue that, in the absence of duly proven misconduct or incompetence, it is not for the Trial Chamber to stipulate who should represent an accused person. It submits that the former Lead Counsel are familiar with the case and appointment of other Counsel will result in delay. 7. The Defence further submits that an expression of preference or otherwise for Counsel by the Trial Chamber, gives the impression however unintended, of bias and interference with the statutory rights of the Accused persons. 8. The Defence subscribes to the observations and opinions stated by the Hon. Justice Sebutinde in her Memorandum dated 19 May 2005 and claims that the substantive legal issues of ultra vires, perceived judicial impropriety, potential bias and conflict of interest, and the potential compromise of fair and impartial conduct of the trial are so palpable that the other two judges of this Trial Chamber ought to recuse themselves from hearing the present Motion. 9. Finally, the Defence seeks judicial review of the Registrar’s decision not to re- assign the two Counsel who withdrew from the case to ensure the observance of due process of law, and prevent improper vexation and oppression in the administration of justice. DEFENCE OFFICE’S RESPONSE 10. In reply the 2nd Respondent – the Deputy Principal Defender – argues that the Directive on the Assignment of Counsel and Rule 45 imply the Principal Defender’s lead role in assigning and replacing counsel and his independent and autonomous decision-making authority. She points out that the Registry is not mentioned in the provisions governing assignment and replacement of counsel, but rather in provisions dealing with administration and servicing. She submits that the Registrar’s delegation of the defence duties to the OPD limits the Registrar’s role in assigning counsel and he does not have explicit power to review determinations of the Principal Defender. Alternatively, if the Registrar does have implicit power to review the Principal Defender’s appointment decisions, then such power is subject to a “reasonable and valid grounds” test. PRINCIPAL DEFENDER’S CROSS-MOTION 11. The Cross-Motion seeks clarifĳication of the meaning of the word “permit” used in the majority order of the Trial Chamber of 12 May 2005, and whether counsel must actually withdraw if he has only been “permitted to withdraw.” interlocutory decisions – trial chamber 431

The Deputy Principal Defender also seeks guidance on the meaning of “another” as in the phrase “appoint another counsel.” She also makes a submission that there is no Rule or Directive disqualifying counsel who has previously withdrawn from the case, and so any disqualifĳication may be perceived as a penalty for complying with the clients’ wishes and their local code of ethics. REGISTRAR’S RESPONSE TO THE MOTION 12. The 1st Respondent, the Registrar, notes that the Counsel in question were, on the 25th May 2005, removed from the List of Qualifĳied Counsel suitable for assignment as Lead Counsel when it was noticed that they were still on the list despite the fact that they had withdrawn from the trial and that the security concerns, which were a major reason which caused them to seek to withdraw, had not been addressed by Counsel in any manner with the Registry. 13. Accordingly, the Registrar submits that there is no basis for the Motion since the Counsel requested by the Accused are not on the List of Qualifĳied Counsel from which they can choose. 14. The Registrar further submits that while the position of Registrar is recognised under Article 16 of the Statute, the position of Principal Defender has no statutory authority and therefore that title and the Defence Offfĳice come under the statutory authority of the Registrar and they are subject to his administrative direction, and that includes ensuring that court orders are implemented. 15. Hence the Registrar states that he has sought to ensure that the decision of the Trial Chamber on 12 May wherein it directed another Counsel be appointed by the Principal Defender to represent the accused is complied with. He submits that his action in refusing to allow the acting head of the Defence Offfĳice to re-appoint Counsel, is within the responsibility and powers the Registrar has to direct stafff under his authority and to ensure that court orders are complied with. 16. The Registrar further submits that the Motion, by seeking to allow the acting head of the Defence Offfĳice to re-appoint Counsel in contravention of the Trial Chamber’s decision of 12 May, is in reality seeking to ignore and “go behind” the order of the Trial Chamber which allowed Counsel to withdraw from the case, and therefore constitutes an abuse of process. 17. He also submits that statements from the accused that they are now prepared to provide full instructions should be disregarded as they have withdrawn instructions before and may do so again. 18. The Registrar states that the right of the Accused to be assigned Counsel of their choice is not absolute and that he must take into account all surrounding circumstances before deciding whether to accept a request by an accused for counsel. He sees the decision of the Trial Chamber in allowing the two Lead Counsel to withdraw as being based on the fact that Counsel were no longer in 432 part ii a position to properly defend the Accused, and regards the decision as an important matter to take into account to ensure that the Accused are properly represented. In support, he cites para. 60 of the decision: “We are of the view that Lead Counsel, with their present difffĳiculties, would not be capable of acting in the best interest of their clients. We doubt that they would be able to represent their clients to the best of their ability when, apart from everything else, they are concerned for their own safety and that of their families. Although we are loath to come to a decision which possibly may adversely afffect an expeditious trial, we are of the view that the rights of the Accused to be represented by counsel would best be served by appointing counsel able to carry out their duties free of the constraints inhibiting present Lead Counsel.” 19. The Registrar argues that the Motion seeks to impose upon him a test of refusal on “reasonable and valid grounds” but that no such test is provided in the Rules or the Directive. However, he submits that if there is such a test, then he relies on the decision of the Trial Chamber allowing Lead Counsel to withdraw because they could not properly represent the Accused. 20. With reference to the Defence submission that there was extra judicial interference in the question of the re-appointment of Counsel, the Registrar states that he has the right under Rule 33(B) to make oral or written representations to Chambers on any issue arising in the context of a specifĳic case which afffects or may afffect the discharge of such functions, including that of implementing judicial decisions. Pursuant to this right, his representations to the Trial Chamber were to seek clarifĳication of its order; he was not seeking to be directed by the Trial Chamber. 21. He refers to the overall authority of the Registrar over the administration and servicing of the Special Court and argues that he is entitled to direct the Principal Defender on the assignment of counsel, which is an administrative matter.

JOINT DEFENCE REPLY TO REGISTRAR’S RESPONSE 22. The Defence reply, which is very strongly worded and, in our view, amounts to a personal attack on the Registrar, restates the Defence argument that the Registrar’s direction not to reassign counsel is arbitrary and without legal foundation. The Reply also contains a further prayer for relief that the: “Motion of 24 May 2005 together with all subsequent responses and replies thereto be made public and heard in open court.”

REGISTRAR’S RESPONSE TO CROSS-MOTION 23. The Registrar submits that the cross-motion is being used to extend the arguments of the Deputy Principal Defender and attempts to redefĳine the clear order of the Trial Chamber of 12 May 2005. interlocutory decisions – trial chamber 433

DEFENCE OFFICE’S REPLY TO REGISTRAR’S RESPONSE TO CROSS-MOTION 24. The Defence Offfĳice reiterates its mandate under Rule 45 to ensure the rights of the Accused. The new Principal Defender states that he is in a dilemma as to what to do in order to secure the best interests of the accused persons and in the interests of fair trial and justice, and that ultimately, the Defence Offfĳice will await the directive of the Trial Chamber in view of the multifarious motions, responses and replies already fĳiled.

II. Deliberations

Further Relief Sought in Joint Defence Reply to Registrar’s Response that the Motions be Heard in Open Court. 25. We again note that Counsel have made an application for further relief in a Reply. We repeat what was stated by this Trial Chamber in the Decision on Joint Defence Motion on Disclosure of all Original Witness Statements, Interview Notes and Investigators’ Notes Pursuant to Rules 66 and/or 68 (4 May 2005): “This is a practice that must be discouraged. A Reply is meant to answer matters raised by the other party in its Response, not to claim additional relief to that sought in the Motion. Obviously the other party, having already fĳiled a Response to the Motion, has no way under the Rules to answer the new prayer, except to apply to the Trial Chamber for leave to do so. In future, the Trial Chamber will not hear claims for additional relief contained in a Reply.” Furthermore, we observe that there has been no submission to support or explain this application for a public hearing. Counsel refers to “security concerns” but ignores the fact that the Lead Counsel, in their original application to withdraw from the case sought to have the facts under seal and ex-parte as well as confĳiden- tial. In the circumstances, we consider this application vexatious.

Relief Sought in the Substantive Motion 26. As recited above, the applicants seek four substantive orders. We again note that the chronology recited by the applicants omits fundamental facts, e.g. the order of the Trial Chamber of 12 May 2005, the ruling of 16 May 2005 and a letter of the 17 May 2005 from the Deputy Principal Defender to the Registrar. Without a clear statement that the Court made a ruling on 12 May 2005 granting in full the relief sought by Counsel to withdraw from the case, the Motion implies that the Trial Chamber gave orders to withdraw after and despite a letter from the accused asking for Counsel to be “maintained.” Such implication that the Court acted without giving any consideration to the wishes and statements of the accused is improper. 434 part ii

27. Further, the submission fails to recite that the Court on 16 May 2005 recorded that its order had been made and letters, correspondence and documents that sought to go behind the order would not be countenanced. 28. Instead, the submission refers to consequential orders made on 13 May 2005, then to a letter from the Registrar on 19 May 2005 omitting both the ruling of 16 May 2005 and a memorandum from the Deputy Principal Defender to the Registrar on 17 May 2005, (which sought to have the Counsel re-assigned). That memorandum, very improperly in our view, fails to inform the Registrar of the Court’s ruling of 16 May 2005. 29. The impression that the Registrar wrote on 19 May 2005 on his own volition or in a vacuum is misleading. We remind Counsel of their duty to the Court to be truthful. We cannot accept that failure to recite these 3 important matters was an oversight. Failure to be truthful is misleading and vexatious. 30. Further, Counsel submits that there was an expression of preference or otherwise for Counsel by Justices of the Trial Chamber. There is no evidence that the Justices made any statement of preference or otherwise and to imply impropriety by the Justices in this way is itself improper. 31. If Counsel seek to base their submission on the reference to the Registrar consulting with the Trial Chamber, then the submission fails to take account of the powers to the Registrar, pursuant to Rule 33B, to make oral or written representations to the Chamber on any issue arising in the context of a specifĳic case which may afffect the discharge of his functions. These functions, as the Deputy Principal Defender and the Registrar submit, include the duty to maintain a Defence offfĳice pursuant to Rule 45.

Specifĳic Relief 32. (1) We consider it appropriate to fĳirst deal with the prayer for relief seeking the following: “That the Justices that reconfĳirmed the order not to re-appoint as indicated in the letter from the registrar’s legal adviser recluse (sic) themselves from hearing this present Motion.” This prayer appears based on a premise that there was: a. an order that Counsel not be re-appointed and; b. that order was reconfĳirmed. There was no order made in this Trial Chamber refusing re-appointment of Counsel per se. The orders sought in the original application were for leave for Counsel to withdraw from the case. The orders were granted in full as sought and additional orders for, inter alia, appointment of Lead Counsel were made. interlocutory decisions – trial chamber 435

The orders for appointment of other Lead Counsel were based on the mandatory provisions of Rule 45(E) obliging the Principal Defender to “assign another Counsel.” 33. Since there was no determination of the issue of re-appointment of counsel, there are no grounds for submitting that any Judge recuse him/herself. 34. (2) That the Trial Chamber order the Registrar to ensure that Mr.Metzger and Mr. Harris are re-assigned as Counsel for Accused persons Brima and Kamara. The Lead Counsel Metzger and Harris applied to withdraw for various reasons of which their personal safety and that of their families was emphasized in oral submission. The Court is, in our view, entitled to assume that in keeping with professional ethics, they informed their respective clients of this decision to apply to withdraw. 35. The statement by the accused Kamara that he “did not know it would force my lead counsel to withdraw” (see Motion, Annex F, para. 4) casts doubt upon that basic assumption. This and the statement from the accused Kamara that “I have deemed it fĳit to give him full instructions to come back and work on my case with my full support and continued cooperation” (see Motion, Annex F, para. 4) shows the Court that the accused have decided to frustrate the hearing by withdrawing instructions and then, when it suits them, giving instructions. There is no undertaking or clear indication that this pattern of behaviour will not be repeated to avoid interfering with a fair and expeditious hearing. In our earlier decision permitting Lead Counsel to withdraw, we found that the Accused were merely boycotting the trial and obstructing the course of justice. In our view, that is exactly what they are seeking to do in bringing the present Motion. We do not believe that they genuinely wish to be represented by those particular counsel. We believe that their real motive is to cause as much disruption to the Trial as possible. 36. As the Deputy Principal Defender has correctly stated, the duty to assign Counsel in the event of a withdrawal rests in the Principal Defender. However, we do not consider this entirely relevant as Rule 45(E) provides the appointment must be of “another” Counsel. There is no provision for re-assignment of former Counsel in the event that they or their clients, or both, have changed their mind. 37. (3) An Order to the Acting Principal Defender to immediately enter into a legal contract with Messrs Metzger and Harris: We repeat the foregoing points and stress that there is no provision for re- appointment under Rule 45(E). Whilst the Trial Chamber has a duty to ensure that a trial is fair and expeditious, we do not have the power to interfere with the law relating to privity of contract. 436 part ii

38. (4) An Order to declare the decision of the Registrar not to re-assign Counsel null and void as it was made without legal or just cause. As the Deputy Principal Defender has conceded in the absence of the Principal Defender, certain obligations to carry out duties fall upon the Registrar. He has a further overall duty to act as principal administrator of the Court. 39. In exercising his duty, the Registrar sought to uphold an order of the Trial Chamber allowing Counsel’s application to withdraw and ordering that another Counsel be assigned in accordance with Rule 45(E). 40. To argue that upholding and implementing a Court Order, made on the application of the parties concerned, is “without legal or just cause” is fallacious. 41. The applicants have stressed the right of the accused to Counsel of their “own choosing” as provided by Article 17(4)(d) and have argued this allows them to have the Counsel they previously refused to instruct and co-operate with reassigned to them. They submit the Trial Chamber must “ensure that the right […] is not arbitrarily interfered with […]” 42. This provision has been considered by various courts, both the International Tribunals and, as stated in the brief by Mr. Knoops, by the European Courts when interpreting Article 6 of the European Convention on Human Rights. 43. The accused in this case have declared themselves indigent and have, in accordance with Article 17(E)(d), a right to have legal assistance assigned. 44. However, the right to have legal assistance does not carry with it an absolute right to any Counsel. 45. As was held in the Prosecutor v. Martic by ICTY: “the jurisprudence of the International Tribunal and of the International Criminal Tribunal for Rwanda indicates that the right of the indigent accused to counsel of his own choosing may not be unlimited but that, in general, the choice of any accused regarding this Defence Counsel in proceedings before the Tribunals shall be respected; that, in the view of the Chamber, the choice of all accused should be respected unless there exist well-founded reasons not to assign Counsel of choice.”1 And in ICTY Prosecutor v. Knežević: “Contrary to the submission of the Accused and Mr. Drasko Zec, the right of indigent accused to counsel of his own choosing is not without limits; that the decision for the assignment of counsel rests with the Registrar, having to take into consideration the

1 The Prosecutor v. Martic, Case No. IT-95-11-PT, Decision on Appeal against Decision of the Registry, 2 August 2002. interlocutory decisions – trial chamber 437

wishes of the accused, unless the Registrar has reasonable and valid grounds not to grant the request.” 2 46. And as stated by Ms. Knoops in paragraph 2 of his brief, the right of an accused to counsel “can be subject to certain restrictions, such restrictions should of course be interpreted in the perspective of the overall right of the accused to have a fair trial.” 47. Mr. Knoops in his brief, does not resile from this restricted right of an accused but instead stresses the concept of equality of arms. However, we repeat our view in the decision on the Confĳidential Defence Application, quoted above, “that Lead Counsel with their present difffĳiculties would not be capable of acting in the best interests of their clients.” 48. We note the Defence reply that the “circumstances where Counsel previously withdrew his services for stated reasons and circumstances, some of which have changed” (paragraph 8). We have no direct evidence from Counsel that their circumstances have changed, and given that this application emanates from a letter from the accused purportedly written on the same day as the Trial Chamber’s order, we question the bona fĳides of that statement. The only change since our decision is that the accused are apparently now willing to give instructions to counsel, but all the other factors we considered in arriving at our decision are still in existence. We cannot escape the conclusion that the two lead counsel were not sincere in their reasons for bringing their motion to withdraw from the case and that they never expected it to succeed. 49. Further, it is unclear on what legal grounds this application is made. The application does not say it is founded on Rule 45(D) and makes no submission that there are exceptional circumstances that would allow the Trial Chamber to exercise its jurisdiction under Rule 45(D). 50. It appears that this application in reality is simply an application to reverse a majority decision given by the Trial Chamber on 12 May 2005 because in that decision all relief prayed for was granted to Counsel. A decision upholding the submissions made and granting the relief prayed for could hardly be appealed. Given the alacrity with which the accused and their Counsel and the Deputy Principal Defender sought to go behind that order and seek to reverse it, causes us to doubt the sincerity of the application to withdraw. By not giving instruction to their Counsel leading to withdrawal of counsel from the case, coupled with an immediate application to re-instate the same Counsel, the accused have seriously delayed and obstructed this trial.

2 The Prosecutor v. Knežević, Case No. IT-95-4-PT, IT-95-8/1-PT, Decision on Accused’s request for Review of Registrar’s Decision as to Assignment of Counsel, 6 September 2002. 438 part ii

51. Moreover, since the Accused had not been coming to court and were not giving instructions to their counsel (although those were not the only reasons why counsel sought to withdraw from the case), we directed under Rule 60(B) that the Accused be represented by Court-appointed counsel (who were already part of the Defence team) and that the Principal Defender assign another lead counsel to each of the Accused. We were satisfĳied that these were the proper measures to protect the rights of the Accused, in particular their right to be tried without undue delay as enshrined in Article 17(4)(c). We do not have the jurisdiction to revisit that decision, nor do we see any good reason to re-appoint the counsel concerned. In any event, it appears that the said Counsel are not eligible to be reappointed since they are no longer on the list of qualifĳied counsel required to be kept under Rule 45(C). 52. Having held that this Motion is not founded on bona fĳide motives and seeks to reverse an order granting relief which the Defence itself sought, we consider this Motion to be frivolous and vexatious and for this and the foregoing reasons, we dismiss the motion and refuse the relief prayed for therein.

Cross Motion 53. The Deputy Principal Defender has fĳiled a Cross-Motion in response to the Defence Motion. We again repeat, a response or reply should not be used as a vehicle to seek further relief. The Acting Principal Defender seeks clarifĳication of the majority order of 12 May 2005 and asks if “permit to withdraw” means Counsel are required to withdraw and if “another” Counsel means Counsel other than those who withdrew. 54. The application then argues that there is no provisions disqualifying counsel who have previously withdrawn and suggests the “disqualifĳication may be perceived as a penalty.” In our opinion, this is a speculative statement implying an unspecifĳied party has been subjected to some form of penalty and is made without foundation. 55. The then Principal Defender, Ms. Monasebian, sought clarifĳication of the order and appointment of other Counsel in open Court on 12 May 2005 and accepted the replies of Hon. Justice Lussick and the Presiding Judge. For the ben- efĳit of the Deputy Principal Defender, when the Trial Chamber permits counsel to withdraw from the case, it is the duty of the Principal Defender under Rule 45(E) to assign another counsel to the indigent accused. The word “another” is defĳined in the Paperback Oxford English dictionary as meaning: “1. one more. 2. diffferent from the one already mentioned.” 56. If the Deputy Principal Defender is still in doubt as to the meaning of the orders we made in court on the 12 May 2005, we would draw her attention to the interlocutory decisions – trial chamber 439 transcript of that date, page, 4 lines 11 to 21, where the following exchange took place: “JUDGE LUSSICK: We’ll be relying on you, Ms. Monasebian, to appoint two new lead counsel in accordance with the order. But we are very confĳi- dent that the co-counsel can carry the case in the meantime, as they have been doing for long sessions in any event. Ms. MONASEBIAN: And they are permitted to, that’s right. JUDGE LUSSICK: Certainly, yes. We are well aware they are permitted to do that. Ms. MONASEBIAN: Yes, yes. Thank you for that clarifĳication and that just leads me to know that we have to assign other people in due course. Thank you for that, Your Honours.” 57. We have added emphasis in places in the hope that it will aid the Deputy Principal Defender’s understanding. Certainly, the Principal Defender at the time had no difffĳiculty in knowing what her duty was and accepted that new lead counsel would need to be appointed. 58. The other matter raised in the Deputy Principal Defender’s Cross-Motion is as follows: “The Defence Offfĳice seeks an order offfering guidance as to the application of the word “permit” to withdraw used in the majority Order of the Court of 12 May 2005 and its subsequent Decision dated 20 May 2005. Must Counsel necessarily be required to withdraw if he is only “permitted to withdraw”? 59. If the Deputy Principal Defender is putting this to the Trial Chamber as a hypothetical question then we would inform her that the Trial Chamber does not make fĳindings on hypotheses. If, on other hand, she is suggesting that the two lead counsel brought a Motion to withdraw from the case when they had no intention of doing so if the motion were granted, then we would view that as a serious impropriety. 60. We refer to the Registrar’s Reply to the Motion and agree with his submissions on the law. We fĳind that in implementing the orders of this Trial Chamber, the Registrar has acted within his authority and power. 61. Looking at the history of this case since we made our order on the 12 May 2005, it seems to us as though the Deputy Principal Defender has gone out of her way to undermine our decision. Almost a month has gone by and she has not made any attempt to appoint new lead counsel. It appears she is unwilling to do her job, and unwilling to follow the directions of the Registrar, who has overall authority over the administration of the Special Court and, in particular, over the assignment of counsel, which is an administrative matter. 440 part ii

62. We noted the Cross Motion sought clarifĳication only and having made those clarifĳications no orders are required. FOR ALL THE ABOVE REASONS the Trial Chamber dismisses the Motion. Hon. Justice Julia Sebutinde will deliver a separate dissenting opinion. Done at Freetown this 9th day of June 2005. TRIAL CHAMBER II

Before: Justice Teresa Doherty, Presiding Judge Justice Richard Lussick Justice Julia Sebutinde Registrar: Robin Vincent Date: 11 July 2005 PROSECUTOR Against Alex Tamba Brima Brima Bazzy Kamara Santigie Borbor Kanu (Case No.SCSL-04-16-T)

DISSENTING OPINION OF THE HON. JUSTICE JULIA SEBUTINDE FROM THE MAJORITY DECISION ON THE EXTREMELY URGENT CONFIDENTIAL JOINT MOTION FOR THE RE-APPOINTMENT OF KEVIN METZGER AND WILBERT HARRIS AS LEAD COUNSEL FOR ALEX TAMBA BRIMA AND BRIMA BAZZY KAMARA, AND DECISION ON CROSS-MOTION BY THE DEPUTY PRINCIPAL DEFENDER TO TRIAL CHAMBER II FOR CLARIFICATION OF ITS ORAL ORDER OF 12 MAY 2005

First Respondent: Defence Counsel for Alex Tamba Brima: The Registrar Glenna Thompson Kojo Graham Second Respondent: Defence Counsel for Brima Bazzy Kamara: The Acting Principal Defender Mohamed Pa-Momo Fofanah Defence Counsel for Santigie Borbor Kanu: Geert-Jan Alexander Knoops Carry Knoops Abibola E. Manly-Spain 442 part ii

I. Introduction

I respectfully dissent from the Majority Ruling of my learned colleagues, Hon. Justice Teresa Doherty and Hon. Justice Richard Lussick on the Extremely Urgent Confĳidential Joint Motion for the Reappointment of Kevin Metzger and Wilbert Harris as Lead Counsel for Alex Tamba Brima and Brima Bazzy Kamara pursuant to Articles 17(4)(c) and 17(4)(d) of the Statute of the Special Court for Sierra Leone and Rule 54 of the Rules of Procedure and Evidence and the Inherent Jurisdiction of the Court (herein referred to as “the present Motion”) and the Principal Defender’s Cross-Motion Filed Pursuant to Articles 17(4)(c) and 17(4)(d) of the Statute of the Special Court and Rules 45 and 54 of the Rules of Procedure and Evidence and Inherent Jurisdiction of the Court for Clarifĳication on the Decision on the Confĳidential Joint Defence Application For Withdrawal by Counsel for Brima and Kamara and on the Request for Further Representation by Counsel for Kanu (herein referred to as “the Cross-Motion”). Firstly, I am not persuaded that the present Motion by the Accused persons Alex Tamba Brima and Brima Bazzy Kamara is either frivolous or vexatious or some kind of a sinister conspiracy between the Accused persons, their former Counsel Kevin Metzger and Wilbert Harris and the Deputy Principal Defender “to go behind” the Trial Chamber’s earlier Decision on the Confĳidential Joint Defence Application for Withdrawal by Counsel for Brima and Kamara and on the Request for Further Representation by Counsel for Kanu (herein referred to as “the earlier Decision”). I fĳind absolutely no grounds or justifĳication for drawing such an inference or conclusion. Nor do I understand the present Motion to be asking the Trial Chamber indirectly or underhandedly, “to review its said earlier Decision.” In my opinion the present Motion fĳiled solely by the Accused persons Alex Tamba Brima and Brima Bazzy Kamara pursuant to Article 17(4)(c) and (d) of the Statute of the Special Court is fundamentally concerned with the statutory rights of Accused persons to be tried without delay and to choose their Counsel and is clearly distinct and diffferent from an earlier application fĳiled solely by their former Defence Counsel seeking leave to withdraw from the AFRC trial pursuant to Rule 45(E) of the Rules of Procedure and Evidence (herein referred to as “the Rules”). In my opinion, the interests of justice and a fair trial would best be served if the Trial Chamber perceived, treated and determined the two applications as separate and distinct from each other and if the Trial Chamber examined and determined the present Motion upon its merits rather than treating it with suspicion and summarily dismissing it as frivolous and vexatious or as a backdoor attempt by the Applicants to undermine a court Order. In my opinion the pursuit of the statutory rights of Accused persons should never be described or treated as “frivolous” or “vexatious.” The reasons for my dissent are articulated in the ensuing paragraphs. Before examining the merits of the present Motion and Cross-Motion I wish to highlight a number of statements in interlocutory decisions – trial chamber 443 the Majority Decision with which I fundamentally disagree. I propose to indicate the statements as they appear in the various paragraphs of the Majority Decision and to briefly indicate alongside each statement the reasons for disagreement. These comments form an integral part of the ensuing dissenting opinion and are without prejudice to the detailed reasoning contained therein. The preliminary comments will be followed by an in-depth consideration of the merits of the Motion and Cross-Motion.

II. Preliminary Comments on Majority Decision

1. I disagree with the statements in paragraph 25 of the Majority Decision in relation to the Defence prayer that the Motion and all subsequent responses and replies thereto be made public and heard in open court, that “Counsel have made an application for further relief in a Reply” and that “there has been no submission to support or explain this application for a public hearing.” In my opinion the Defence request for “an open and public hearing” is not a request for “further relief” against the First or Second Respondents as such. The Accused persons are merely asserting their statutory right to a public hearing as guaranteed by Article 17(2) of the Statute and asking the Trial Chamber not to apply the exception to the rule provided in Rule 73(A) of the rules. As I understand it, the right to a public trial is the norm under the Statute, while Rule 73(A) of the Rules which empowers the Trial Chamber to adjudicate on motions “based solely on written submissions” is the exception to the norm. In my view Rule 73(A) is not intended to override the right to a public trial as such but is merely intended generally to expedite the proceedings of the Trial Chamber. In any event, there is nothing in the Statute of the Special Court or the Rules or the Practice Direction on Filing of Documents before the Special Court1 that expressly or impliedly prohibits a party from applying for “additional relief” in a reply, if the interests of justice so require. After all, Rules of procedure are merely handmaidens of justice and are not meant to fetter the court’s discretion where the interests of justice otherwise require. The proper remedy for a party prejudiced by a belated prayer for such “additional relief” is for that party to apply to the Trial Chamber for leave to respond appropriately to such prayer. Since neither of the Respondents herein has applied for leave to respond to the application for a public trial and neither of them has indicated that a public hearing is likely to be prejudicial to or in conflict with any measures ordered by the Court for the protection of witnesses or victims, the Trial Chamber ought not in my opinion, to assume or infer the existence of such

1 Document No. SCSL-2004-16-PT-114 444 part ii prejudice or to penalise the Accused persons for containing the application in their Reply rather than their Motion. The Trial Chamber ought instead, to consider the merits of that application, as I will endeavour to do later on in this opinion. In this regard I am persuaded by the approach taken by the Honourable Justices of Trial Chamber I in the Prosecutor v. Brima et al., SCSL-2004-16-PT-16.2 In that Decision Trial Chamber I decided that in order to ensure the protection of the rights of the accused persons under Article 17(4)(b) and (d) of the Statute, their Lordships would hear Counsel orally “on any new matters which had not already been raised in their submissions or on clarifĳications relating to the fĳiled submissions.” Their Lordships did not consider it to be in the interests of justice to prevent Counsel from raising additional matters not originally included in their written submissions. 2. More signifĳicantly, the Accused persons in the present Motion have clearly indicated in their Response to the Registrar’s Reply that their application for a public and open hearing “was above all necessitated by the disclosure by the Registrar that both Counsel (Kevin Metzger and Wilbert Harris) have been removed from the list of eligible Counsel”3 and by “the Registrar’s decision to strike offf Counsel from the list of eligible Counsel in the face of a motion and cross motion for their reappointment while claiming to be acting in the best interests of the accused when they have clearly said that they want their Counsel back.”4 In my opinion, since the Registrar’s removal of Counsel from the eligible list and the disclosure of that removal occurred after the fĳiling of the Defence’s initial Motion and while that Motion was sub judice, the Trial Chamber cannot reasonably expect the Accused persons to have applied for an open and public hearing any earlier than in their Response to the Registrar’s Reply, nor can the Trial Chamber in these circumstances penalise the Accused persons for invoking their Statutory rights in their reply. Their Lordships in paragraph 25 of the Majority Decision also seem to suggest that the Accused persons are estopped from asserting their right to a public hearing in the present Motion simply because their former Counsel in an earlier application to withdraw raised certain personal security concerns that Counsel requested the Trial Chamber to handle as “confĳidential and under seal.” In my opinion the argument is fallacious as it uses the security concerns of former Counsel raised in an application to which neither accused person was party, to deny the Accused persons their rights under the present Motion. Not only must a distinction be drawn between the Accused persons and their Defence Counsel, but a clear distinction ought to be drawn between the earlier withdrawal motion by

2 Brima-Decision on Applicant’s Motion against Denial by the Acting Principal Defender to enter into a Legal Service Contract for Assignment of Counsel, 6 May 2004, paragraph 28. 3 Document No. SCSL-2004-16-PT-296, paragraph 6 of the Conclusion, page 9337. 4 Document No. SCSL-2004-16-PT-296, paragraph 18. interlocutory decisions – trial chamber 445

Counsel and the present Motion by the Accused persons. I will address the merits of the application for a public hearing later on in this opinion. 3. I disagree with the statements in paragraph 26 (in respect of the Defence’s failure to include a statement in their Motion that the Court made a ruling on 12 May 2005 granting in full the relief sought by Counsel to withdraw from the case) that “the Motion implies that the Trial Chamber gave orders to withdraw after and despite a letter from the Accused asking for Counsel to be maintained. Such an implication that the Court acted without giving any consideration to the wishes and statements of the Accused is improper.” It is a fact that the Court’s Oral Order of 12 May 2005 together with the reasoned Ruling of 23 May 2005 are both matters of public record that speak for themselves and that need not be recited by either party in their pleadings. Accordingly I see no need for the Trial Chamber or any of the parties to read into the Motion any views or implications that are contrary to the public court record. In any event, even the Registrar who was not a party to the proceedings that led to the Court Order and Reasoned Ruling of 12th and 16th May 2005 is well aware of the Court’s “Decision on the Confĳidential Defence Application for withdrawal by Counsel for Brima and Kamara and on the Request For Further Representation by Counsel for Kanu” and quotes extensively from it in the Registrar’s Reply to Extremely Urgent Motion5 and in the Registrar’s Reply to the Principal Defender’s Cross-Motion,6 thereby proving that he has sufffered no prejudice by the failure of the Accused persons to recite the Decision in their Motion. 4. I disagree with their Lordship’s view and statement in paragraph 28 to the efffect that “the Deputy Principal Defender’s submissions omitted to cite the Trial Chamber’s Ruling of 16 May 2005 and a Memorandum from the Deputy Principal Defender to the Registrar on 17 May 2005 which sought to have Counsel re-assigned. That Memorandum very improperly fails to inform the Registrar of the Court’s Ruling of 16 May 2005.” I reiterate my earlier comments above with regard to the Court’s Ruling of 16 May 2005 being a matter of public record that speaks for itself. Furthermore, the Deputy Principal Defender’s Memorandum to the Registrar of 17 May 2005 although copied to the Honourable Justices of Trial Chamber II on an earlier occasion, is not annexed to the Defence Offfĳice’s Response to the Motion and therefore does not form part of the Principal Defender’s case in these proceedings. I disagree with the view taken by their Lordships that the Deputy Principal Defender was under some kind of legal obligation to include certain facts in her pleadings. In my opinion it is improper for the Trial Chamber to dictate

5 Document No. SCSL-2004-16-PT-290, paragraphs 11, 12, 16, 17, 22 and 25. 6 Document No. SCSL-2004-16-PT-298, paragraph 3. 446 part ii to the parties what they ought or ought not to include in their pleadings. To do so would be tantamount to the Trial Chamber “descending into the arena.” In my view, where the Trial Chamber considers certain facts to be relevant in the determination of this Motion, the Trial Chamber has the option to narrate those facts in its decision, even if the parties have not recited them in their pleadings. This in my view is the proper course to take. 5. I disagree with their Lordship’s view and statements expressed in paragraph 29. The views expressed in that paragraph are premised upon the presumption that the Trial Chamber has power to dictate to the parties the content of their pleadings, which presumption I have described above as being tantamount to the Trial Chamber “descending into the arena.” By imputing or implying “mala fĳides,” “untruthfulness” and “vexatious ness” on the part of the Deputy Principal Defender simply because she chose to omit certain facts from her pleadings (which facts are in any event public) or because she omitted to included certain facts that the Trial Chamber would have wanted or expected her to include in her pleadings, their Lordships are once again, “descending into the arena” that is the province of the disputants. Furthermore I cannot see how the Deputy Principal Defender who herself is one of the Respondents obligated to respond to the Motion, can be said to be “vexatious” in her Response, much less “vexatious to the Trial Chamber.” 6. I disagree with their Lordship’s view and statements expressed in paragraph 30. I shall comment on this in greater detail later. 7. I disagree with their Lordship’s view and statements expressed in paragraph 31. There is no indication that in the Accused in their Motion question or challenge the Registrar’s powers to consult the Trial Chamber pursuant to Rule 33B of the Rules. Instead the Accused persons indicate in paragraphs 31 to 33 of the Motion that they object to and challenge the manner in which the Trial Chamber responded to the Registrar’s consultation pursuant to Rule 33B. 8. I disagree with their Lordship’s view and statements expressed in paragraphs 32 and 33. I shall comment on this in greater detail later. 9. I disagree with their Lordship’s view and statements expressed in paragraphs 34, 35 and 36 on the grounds that those statements and view are premised upon the perception that the earlier application7 by Mr. Kevin Metzger and Mr. Wilbert Harris to withdraw from the conduct of the Defence case for Brima

7 The Prosecutor v. Alex Tamba Brima et al., Case No. SCSL-2004-16-T: Decision on the Confĳidential Defence Application for Withdrawal by Counsel for Brima and Kamara and on the Request for Further Representation by Counsel for Kanu, 23 May 2005. interlocutory decisions – trial chamber 447 and Kamara respectively, and the subsequent withdrawal of Counsel pursuant to the Trial Chamber’s Ruling thereon, act as an estoppel or bar to the current application by the Accused persons Brima and Kamara to subsequently apply to have the same Counsel “re-appointed” as their chosen Counsel pursuant to Article 17(4)(d) of the Statute. With the greatest respect to their Lordships I think that such a perception is mistaken and legally unjustifĳied. In particular I disagree with the statements that “the accused have decided to frustrate the hearing by withdrawing instructions and then, when it suits them, giving instructions. There is no undertaking or clear indication that this pattern of behaviour will not be repeated to avoid interfering with a fair and expeditious hearing. In our earlier decision permitting Lead Counsel to withdraw, we found that the accused were merely boycotting the trial and obstructing the course of justice. In our view, that is exactly what they are seeking to do in bringing the present Motion. We do not believe that they genuinely wish to be represented by those particular Counsels. We believe that their real motive is to cause as much disruption to the trial as possible.” Apart from prematurely speculating about the future conduct or behaviour of the Accused persons, the statements are premised upon the presumption that the Trial Chamber has power to dictate the relationship between an Accused person and his Counsel and to demand certain “undertakings” of “good behaviour or conduct” from the Accused persons with regard to that relationship. In my opinion the Trial Chamber has no such power under the law. In the same vein, I am of the opinion that the Trial Chamber has no power to question the “genuineness” or otherwise of the Accused persons’ choice of Counsel, whether that choice is in favour of Mr. Kevin Metzger and Mr. Wilbert Harris or any other Counsel. Under the Statute and Rules the choice of Defence Counsel is entirely the prerogative of the concerned Accused persons. Lastly I am of the opinion that without having examined the merits of the present application, it is unjust for the Trial Chamber to dispar- age the motives of the Accused persons purely on the basis of an earlier application by their Counsel, to which application the Accused persons were not party. This is precisely the crux of my departure in opinion from their Lordships in the Majority Decision. In my opinion the two applications are separate and distinct from each other and should be handled as such. 10. I disagree with their Lordship’s view and statements expressed in paragraphs 36 to the efffect that, “Rule 45(E) provides that the appointment must be of “another” Counsel. There is no provision for reassignment of former Counsel in the event that they or their clients or both, have changed their mind.” Again this statement is based upon the presumption or perception that the Accused persons are in their present application asking the Trial Chamber to reverse or review its earlier decision permitting their Counsel to withdraw. The present application is clearly not a Rule 45(E) application by any stretch of imagination, nor do the Accused persons claim it to be so. Furthermore although there is nothing in the Rules providing expressly for “re-assignment of former Counsel” there is nothing in the Rules, the Statute or 448 part ii the Directive on assignment of Counsel that prohibits such re-assignment either, if the interests of justice so require and the Accused persons and concerned Counsel are agreeable to it. 11. I disagree with their Lordship’s view and statements expressed in paragraph 37 to the efffect that, “we do not have the power to interfere with the law relating to privity of contract.” The Trial Chamber’s duty is not limited to ensuring that the trial is “fair and expeditious.” There is ample authority to the efffect that the Special Court’s inherent jurisdiction does extend to the control and supervision of offfĳicers of the Court and to subject questionable administrative acts to Judicial scrutiny and review in order to protect the rights of the Accused persons and to promote a fair and just trial.8 12. I disagree with their Lordship’s view and statements expressed in paragraph 38 to the efffect that, “In the absence of the Principal defender, certain obligations to carry out duties fall upon the Registrar.” There is ample authority to the efffect that “in view of the very nature and functioning of public or private services, it is and should always be envisaged that the substantive holder of the position is not always expected to be there at all times. In order to ensure a proper functioning and a continuity of services with a view to avoiding a disruption in the administrative machinery, the Administration envisages and recognises the concept of “Acting Offfĳicials” in the absence of their substantive holders. Where an offfĳicial is properly appointed or designated to act in a position during the absence of the substantive holder of that position, the Acting Offfĳicial enjoys the same privileges and prerogatives as those of the substantive offfĳicial and in that capacity, can take the decisions inherent in that position.”9 13. I disagree with their Lordship’s view and statements expressed in paragraphs 39 to 52. The Accused persons Brima and Kamara have in the present Motion not requested the Trial Chamber to review or reverse its earlier decision in the withdrawal motion by Defence Counsel. It appears to me that their Lordship’s view and statements expressed in paragraphs 39 to 52 are in tantamount to a review of that earlier motion and decision. The present Motion fĳiled by the Accused persons pursuant to Rule 54 and Article 17(4)(d) of the Statute is clearly separate and distinct from that earlier motion for withdrawal fĳiled by Defence Counsel

8 The Prosecutor v. Alex Tamba Brima et al., Case No.SCSL-2004-16-T, Brima Decision on Applicant’s Motion Against Denial by the Acting Principal Defender to Enter a Legal Service Contract for the Assignment of Counsel, 6 May 2004; see also Prosecutor v. Tadic, Case No. IT-94-1 Decision on the Defence Motion for Interlocutory Appeal for Jurisdiction, 2 October 1995; The Prosecutor v. Blaskic, Case No. IT-95-14: Appeals Chamber Judgment on the Request of the Republic of Croatia for Review of the decision of Trial Chamber II, 18 July 1997; The Prosecutor v. Barayagwuriza, Case No. ICTR-97-13, Appeals Chamber Decision on Abuse of Process, 3 November 1999. 9 The Prosecutor v. Alex Tamba Brima et al., Case No.SCSL-2004-16-T, Brima Decision on Applicant’s Motion Against Denial by the Acting Principal Defender to Enter a Legal Service Contract for the Assignment of Counsel, 6 May 2004, paragraphs 78 and 79. interlocutory decisions – trial chamber 449 pursuant to Rule 45(E). In my opinion the present Motion is so fundamental to the rights of the Accused persons as envisaged under Article 17(4)(d) of the Statute that it would not be in the interests of justice or a fair trial for the Trial Chamber to simply and summarily dismiss the Motion as a veiled attempt by the Accused persons “to reverse an earlier decision of the Trial Chamber.” Furthermore I fĳind no grounds or justifĳication whatsoever for imputing insincerity, ill motive or alacrity on the part of the Accused persons who are simply pursuing their statutory right to choose Counsel. Equally, I fĳind no grounds or justifĳication whatsoever for accusing Mr. Kevin Metzger and Wilbert Harris who are not party to the present Motion, of conniving with the Accused persons to “go behind an earlier order of the Trial Chamber” or to “delay or obstruct” the conduct of a trial from which they have already withdrawn. Equally, I fĳind no ground or justifĳication whatsoever for imputing insincerity, ill motive, alacrity on the part of the Deputy Principal Defender who herself a Respondent in these proceedings, nor do I fĳind any grounds or justifĳication for accusing her of connivance with the Accused persons or with Mr. Kevin Metzger and Wilbert Harris to “go behind an earlier order of the Trial Chamber” or to “delay or obstruct” the conduct of the trial. The fact of the matter is that the AFRC trial has never been adjourned or delayed even for a single day on account of the Accused persons or their former Counsel or the Deputy Principal Defender. Therefore I cannot subscribe to the view or statement in paragraph 50 that “the accused have seriously delayed and obstructed this trial” nor do I subscribe to the view that there is some kind of backdoor conspiracy between the Accused persons, their former Counsel and the Deputy Principal Defender to delay and obstruct the AFRC trial. 14. I disagree with their Lordship’s view and statements expressed in paragraph 51 to the efffect that “Counsel are not eligible to be reappointed since they are no longer on the list of qualifĳied counsel required to be kept under Rule 45(C).” With the greatest respect, the view and statement fails to take into account the fact that the removal of Counsel from the said list was done by the Registrar who is the fĳirst Respondent to the present Motion while the Motion was under judicial consideration (i.e. sub judice). In my opinion it would not be in the interests of justice or a fair trial if the Trial Chamber merely turned a blind eye to this pertinent fact and failed to properly evaluate and adjudicate upon the efffect of such removal on the rights of the Accused persons, as my colleagues appear to have done. It does not appeal to my sense of justice and fairness to question the motives of the Applicants or of the Second Respondent while being completely oblivious to those of the First Respondent. 15. I disagree with their Lordship’s view and statements expressed with regard to the Deputy Principal Defender’s Cross Motion. Having concluded in paragraph 62 that “the Cross Motion sought clarifĳication only and that having made those clarifĳications no orders are required” it is contradictory to describe the Cross Motion in paragraph 53 as “a vehicle that seeks further relief.” 450 part ii

16. Lastly, I disagree with their Lordship’s view and statements expressed in paragraph 61. I fĳind no ground or justifĳication whatsoever in accusing the Deputy Principal Defender of “having gone out of her way to undermine an order of the Trial Chamber” or of “being unwilling to do her job or to follow the directions of the Registrar.” In my opinion, the views expressed in paragraph 61 of the Majority decision presuppose that there are certain fĳixed time frames within which the Trial Chamber expects the Principal Defender to have assigned new Counsel to the Accused persons. In fact this is not the case. In its earlier Decision the Trial Chamber did not stipulate any time frames within which they expected the Principal Defender to assign new Counsel for the Accused Brima and Kamara, even though the Trial Chamber had the option to do so. In the premises it is inconceivable that the same Trial Chamber that did not order time frames now accuses an offfĳicer of the court of having “undermined its order.” It is a fact that under the Statute and Rules it is the Defence Offfĳice (headed at the material time by the Deputy Principal Defender in the absence of the Principal), that is vested with the power and responsibility of assigning Counsel to the Accused persons. There is nothing in the Rules or the Directive on Assignment of Counsel to suggest that the Principal Defender when carrying out that duty is obligated to do so “under the direction of the Registrar.” On the contrary, the Offfĳice of the Principal Defender was designed to act autonomously and independently when handling issues related to assignment of Counsel, as I shall endeavour to show later on in this opinion. It is also a fact that many of the lawyers who serve as assigned Counsel at the Special Court are also practitioners in foreign jurisdictions and are not readily available at the drop of a hat to take up their duties when the need arises or when called upon. It may well be that the consultative process between the foreign lawyers and the Offfĳice of the Principal Defender takes considerable time. It is also a fact that the Defence Offfĳice in assigning Counsel or new Counsel to the Accused persons is under statutory obligation to liaise with the Accused persons and to ensure as much as possible that their choice of Counsel is respected. In my assessment, the assignment of new Counsel to the Accused persons is a process that necessarily takes time, careful consideration and consultation of all parties involved. As matters stand, the Trial Chamber is simply not in possession of any or sufffĳicient information as to how the Deputy Principal Defender has been going about the issue of replacing Mr. Kevin Metzger and Mr. Wilbert Harris. As such I do not think that the Trial Chamber is in a position to make a fair assessment of her “willingness or otherwise to do her job” or to draw conclusions that the Defence Offfĳice “has made no attempts to appoint new lead Counsel” or that the Deputy Principal Defender has “gone out of her way to undermine an order of the Trial Chamber.” It is also note worthy that the Registrar in his written submissions himself makes no such claims or accusations against the Deputy Principal Defender, even though it is he that is in disagreement with the Deputy Principal interlocutory decisions – trial chamber 451

Defender over this issue! In the circumstances, I fĳind absolutely no justifĳication for the statements made about the Deputy Principal Defender in paragraph 61 of the Majority Decision. After my preliminary comments on the majority Decision I will now go on to discuss the merits of the present Motion in the ensuing paragraphs.

III. The Merits of the Present Motion and Cross-Motion

17. The present Motion principally challenges the extent of the powers of the Registrar (the First Respondent) and of the Deputy Principal Defender (the Second Respondent) acting as Head of the Defence Offfĳice, to assign Counsel on the one hand, and on the other hand, the rights of the Accused persons (Alex Tamba Brima and Brima Bazzy Kamara) to choose their assigned Counsel as guaranteed and enshrined in the provisions of Article 17(4)(c) and (d) of the Statute. 18. The present Motion also raises issues related to the extent to which the rights of the Accused persons, in particular those pertaining to the right to choose assigned Counsel, should be protected, upheld and ensured by the Deputy Principal Defender (the Second Respondent) as acting Head of the Defence Offfĳice established under Rule 45 of the Rules, under the authority and supervision of the Registrar (the First Respondent), in their application of the provisions of the Directive on Assignment of Counsel promulgated by the Second Respondent on 3 October, 2003 pursuant to Article 17 of the Statute. 19. The Motion also raises related questions of conflict of interest in particular whether the Honourable Justices of the Trial Chamber, having advised the Registrar on 19 May 2005 pursuant to Rule 33(B) not to re-appoint Mr. Kevin Metzger or Mr. Wilbert Harris as assigned Counsel for the Accused persons after their withdrawal, are now in a position to fairly and objectively adjudicate upon the present Motion or should recuse themselves. The present Motion also raises the more fundamental question of whether this Trial Chamber is competent to entertain and adjudicate upon a dispute arising from an administrative decision of the Registrar and Deputy Principal Defender emanating from the application of the legal instruments referred to above. In particular the Motion raises the question whether the Trial Chamber has power to review the decision of the Registrar not to re-appoint Mr. Kevin Metzger or Mr. Wilbert Harris as assigned Counsel for the Accused persons and further his decision of 25 May 2005 to remove them from the list of qualifĳied Counsel. 20. The Principal Defender’s Cross-Motion raises questions relating to the rights of the Accused persons (Alex Tamba Brima and Brima Bazzy Kamara) to choose Mr. Kevin Metzger and Mr. Wilbert Harris as their assigned Counsel respectively, 452 part ii even after those Counsel have been permitted by the Trial Chamber to withdraw and have withdrawn from defending the Accused persons pursuant to Rule 45(E) of the Rules. 21. In my opinion, the present Motion and Cross-Motion raise the following issues for consideration and determination. (i) Whether or not there are substantial grounds for casting doubt on the impartiality of the Honourable Justices of the Trial Chamber when adjudicating upon the present Motion and Cross-Motion. (ii) Whether or not the present Motion and Cross-Motion should be heard in open court. (iii) Whether or not the Trial Chamber has jurisdiction to entertain the present Motion and Cross-Motion. (iv) Whether or not the Accused persons Alex Tamba Brima and Brima Bazzy Kamara are entitled under Article 17(4)(c) and (d) of the Statute of the Special Court to choose Mr. Kevin Metzger and Mr. Wilbert Harris respectively, as assigned Counsel, after each of those Counsel withdrew from representing the respective accused persons in the AFRC Trial pursuant to Rule 45(E) of the Rules. Alternatively, whether or not Mr. Kevin Metzger and Mr. Wilbert Harris are ineligible for reassignment as Defence Counsel for the respective Accused persons, by reason of Counsel having withdrawn from representing the respective accused persons in the AFRC Trial pursuant to Rule 45(E) of the Rules. (v) Whether the Registrar acted within his powers in directing the Deputy Principal Defender not to reassign Mr. Kevin Metzger and Mr. Wilbert Harris as Defence Counsel for the respective Accused persons and in subsequently removing their names from the Principal Defender’s list of eligible Counsel. (vi) Whether the Deputy Principal Defender was bound to comply with the directives of the Registrar relating to the non-assignment of Counsel and their removal from the list of qualifĳied Counsel. (vii) Whether the Trial Chamber has power to review the Registrar’s decision not to reassign Mr. Kevin Metzger and Mr. Wilbert Harris as assigned Counsel, and his decision to remove their names from the list of qualifĳied Counsel. 22. Before examining the merits of the Motion and Cross-Motion, I consider it necessary therefore, to reproduce here the relevant provisions of these legal instruments: The provisions pertaining to the right of the accused to choose Counsel are contained in Article 17(4) of the Statute and Article 2(A) of the Directive on Assignment of Counsel. interlocutory decisions – trial chamber 453

Article 17(4) of the Statute provides as follows:– “17 (4) In the determination of any charge against the accused pursuant to the present Statute, he or she shall be entitled to the following minimum guarantees, in full equality: (a) To be informed promptly and in detail in a language which he or she understands of the nature and cause of the charge against him or her; (b) To have adequate time and facilities for the preparation of his or her defence and to communicate with Counsel of his or her own choosing; (c) To be tried without undue delay; (d) To be tried in his or her presence, and to defend himself or herself in person or through legal assistance of his or her own choosing; to be informed, if he or she does not have legal assistance, of this right; and to have legal assistance assigned to him or her in any such case where the interests of justice so require and without payment by him or her in any such case if he or she does not have suffi cient means to pay for it…” Article 2(A) of the Directive on Assignment of Counsel provides as follows:– “2 (A) Any person detained on the authority of the Special Court has the right to Counsel, in terms conclusively defĳined in Article 17(4)(d) of the Statute.” 23. The provisions pertaining to the assignment and withdrawal of Counsel by the Principal Defender are contained in Rule 45(A), (C) and (D) as well as Articles 13(A), (B), (E) and (F) and Articles 24(B), (C) and (F) of the Directive on Assignment of Counsel. Rule 45(A), (C) and (D) provide as follows:– “Th e Registrar shall establish, maintain and develop a Defence Offi ce, for the purpose of ensuring the rights of suspects and accused. Th e Defence Offi ce shall be headed by the Special Court Principal Defender. (A) Th e Defence Offi ce shall, in accordance with the Statute and Rules, provide advice, assistance and representation to i. Suspects being questioned by the Special Court or its agents under Rule 42 including non-custodial questioning; ii. Accused persons before the Special Court. (B) .… (C) Th e Principal Defender shall, in providing an eff ective defence, maintain a list of highly qualifi ed criminal defence counsel whom he believes are appropriate to act as duty counsel or to lead the Defence or appeal of an accused. Such counsel, who may include members of the Defence Offi ce, shall: i. Speak fl uent English; ii. Be admitted to practice law in any State; 454 part ii

iii. Have at least seven years’ experience; and iv. Have indicated their willingness and full-time availability to be assigned by the Special Court to suspects or accused. (D) Any request for replacement of an assigned counsel shall be made to the Principal defender. Under exceptional circumstances, the request may be made to a Chamber upon good cause being shown and aft er being satisfi ed that the request is not designed to delay the proceedings. (E) ....” Article 13(A), (B), (E) and (F) of the Directive on Assignment of Counsel provide as follows:– “(A) Any person may be assigned as Counsel if his name appears on the list maintained by the Principal Defender in accordance with Rule 45(C) and the Principal Defender has determined that he is and remains available to deal with the case of a particular Accused or Suspect. (B) To be eligible to be included by the Principal Defender in the list of Qualifi ed Counsel an individual must have the following qualifi cations: i. Speak fl uent English; ii. Be admitted to the practice of law in any State; iii. Have at least seven years of experience as Counsel; iv. Possess reasonable experience in criminal law, international law, international humanitarian law or international human rights law; v. Having indicated their willingness and availability to be assigned by the Special Court to an Accused or Suspect; and vi. Have no record of professional or other misconduct, which may include criminal convictions. (C) .... (D) .... (E) Where the Principal Defender refuses to place the name of an applicant Counsel on the List of Qualifi ed Counsel or removes the name of Counsel from the List of Qualifi ed Counsel, the Principal Defender shall notify the applicant Counsel of his decision in writing and briefl y set out his reasons for refusing to include the name of the applicant Counsel on the List, or for removing the name of Counsel from the List. (F) Where the Principal Defender refuses to place the name of an applicant Counsel on the List of Qualifi ed Counsel or removes the name of Counsel from the List of Qualifi ed Counsel, the concerned Counsel may seek review, by the President, of the Principal Defender’s refusal. An application for review shall be in writing and the Principal Defender shall be given the opportunity to respond to it in writing.” Article 24(B), (C) and (F) of the Directive on Assignment of Counsel provide as follows:– interlocutory decisions – trial chamber 455

“(B) Th e Principal Defender shall withdraw the assignment of Counsel or nomination of other Counsel in the Defence Team: i. In the case of a serious violation of the Code of Conduct; ii. Upon the decision by a Chamber to refuse audience to Counsel for misconduct under Rule 46 of the Rules; iii. Where the name of the Assigned Counsel has been removed from the list kept by the Principal Defender under Rule 45(C) and Article 13 of this Directive. (C) Th e Accused, the Counsel concerned and his respective professional or governing body shall be notifi ed of the withdrawal. (D) .... (E) .... (F) Where the assignment of Counsel or nomination of other Counsel in the Defence Team is withdrawn by the Principal Defender, pursuant to paragraph (B)(i) and (iii), Counsel aff ected by withdrawal may seek review of the decision of the Principal Defender by the presiding Judge of the appropriate Chamber.”

IV. Deliberation and Determination of the Issues:

(i) Whether or not there are Substantial Grounds for Casting Reasonable Doubt on the Impartiality of the Honourable Justices of the Trial Chamber When Adjudicating upon the Present Motion and Cross-Motion 24. The Accused Alex Tamba Brima and Brima Bazzy Kamara applied that “the Justices of Trial Chamber II who reconfĳirmed the order not to re-appoint Counsel as indicated in the letter from the Registrar’s Legal Adviser10 should recuse (disqualify) themselves from adjudicating upon the present Motion and Cross-Motion.” The Accused seem to glean the grounds in support of their application for recusal from the Memorandum written by myself on 19 May 2005 in response to the Registrar’s consultations, and copied to the Deputy Principal Defender’s Offfĳice.11 The Accused persons argue that “the substantive legal issues of ultra vires, perceived judicial impropriety, potential bias and conflict of interest, and the potential compromise of the fair and impartial conduct of the trial are so palpable in the circumstances as to compel the Defence to respectfully request that the Justices referred to in the letter from the Registrar’s Legal Adviser recuse themselves from hearing this present Motion.” The Accused persons maintain that the Honourable Justices

10 Annex C to the Extremely Urgent Confĳidential Joint Motion for the Reappointment of Kevin Metzger and Wilbert Harris as Lead Counsel for Alex Tamba Brima and Brima Bazzy Kamara pursuant to Articles 17(4)(C) and 17(4)(D) of the Statute of the Special Court for Sierra Leone and Rule 54 of the Rules of Procedure and Evidence and the Inherent Jurisdiction of the Court. 11 Annex D to the present Motion. 456 part ii having previously ordered that Mr. Kevin Metzger and Wilbert Harris are not to be re-appointed as Defence Counsel, would not be in a position to fairly or impartially adjudicate upon the present Motion and Cross-Motion. The Accused persons further argue that in the absence of duly proven misconduct or incompetence on the part of Mr. Kevin Metzger or Mr. Wilbert Harris, the Trial Chamber has no power or authority to stipulate who should or should not represent an Accused person or to express a preference of one assigned Counsel over the other. The applicants further argue that for the Trial Chamber to do so would amount to or give the impression of bias and interference with the statutory rights of the Accused persons to choose assigned Counsel under Article 17(4)(d) of the Statute. 25. The Registrar (First Respondent) submitted that the Defence application for voluntary withdrawal (recusal) is unfounded and should be denied. He argued that under Rule 33(B) of the Rules he was entitled to consult or liaise with the Trial Chamber on the implementation of its earlier Decision. He argued further that the Trial Chamber was entitled to and acted within its powers when it expressed the view that Counsel who had withdrawn from the case should not be reappointed or re-assigned, and that to re-assign them would not be in the interests of a fair trial. The Registrar further argued that in expressing their opinion the Trial Chamber was merely giving the Registrar advice pursuant to Rule 33(B) and was not “directing him” as to what he should do. Their Lordships in their Majority Decision appear to agree with the Registrar’s arguments and reasoning. I however, beg to disagree for the following reasons. 26. There is no doubt that the Accused persons on trial before the Special Court are entitled to be heard by an impartial tribunal. The charges that they face as well as the consequences of conviction are of an extremely serious nature that they warrant the highest standards of fairness, transparency and impartiality on the part of the Tribunal at every step of the trial. Although the Statute of the Special Court does not defĳine the term “impartiality” the principle of impartiality lies at the heart of the concept of a fair trial and demands that each of the judges of the Trial Chamber before whom the Accused persons appear be unbiased, has no interest or stake in the matter under consideration and does not have pre-formed opinions about it. Actual impartiality as well as the appearance of impartiality are both fundamental for maintaining the integrity and fairness of the trial and respect for the administration of justice by the Court. (Justice must not only be done but must be seen to be done.) Impartiality implies that judges must not harbour pre-conceived views about the merits of the matter before them, and that they must not act in ways that promote the interests of one of the parties.12 While the appearance of partiality is considered as important as actual partiality, there

12 Report of the Human Rights Committee, HRC, vol. II (A/48/40), 1993, at 120, para. 7.2 interlocutory decisions – trial chamber 457 is a general presumption that a judge is personally impartial unless one of the parties raises proof to the contrary. Under Rule 15 of the Rules of Procedure and Evidence of the Special Court, it is sufffĳicient for a party to show that “substantial grounds exist for reasonably doubting the impartiality of a judge.” Once that has been established the impugned judge is disqualifĳied from sitting on the panel considering the matter and is obligated to withdraw. 27. While the Statute of the Special Court is silent as to the issue of recusal or disqualifĳication of a judge from sitting at a trial on grounds of bias, under Article 13 thereof “impartiality” is one of the hallmarks or qualifĳications for appointment as a Judge of the Special Court. It is the Rules of Procedure and Evidence that deal with the issue or judicial disqualifĳication. Under Rule 14 every Judge of the Special Court is required before taking up his or her judicial duties to undertake a solemn declaration to serve “with out fear or favour, afffection or ill-will, honestly, faithfully, impartially and conscientiously.” It follows logically from that solemn undertaking that where a matter arises in which a judge’s impartiality might reasonably be doubted upon any substantial ground, that Judge is expected under Rule 15(A) and (C) of the Rules to voluntarily withdraw from adjudicating upon such matter in the interests of justice and a fair trial. In my view, the voluntary withdrawal of a judge from a proceeding in the circumstances envisaged under Rule 15(A), is often a matter of judicial conscience and should not in any way reflect negatively on the integrity of the judge concerned. However, as earlier indicated Rule 15 also envisages situations where a judge will not voluntarily withdraw from a proceeding on grounds of impartiality. In such a case, Rule 15(B) empowers an aggrieved party to apply to the Chamber of which the judge is a member, to have the said judge dis- qualifĳied on grounds that “substantial grounds exist for reasonably doubting the impartiality of a judge.” Clearly this Rule does not envisage that the impugned judge will sit on the panel that will hear and determine the disqualifĳication motion against him or herself, for that would have absurd consequences! Rule 15(B) envisages that the disqualifĳication motion should be heard by the remaining judges of the Trial Chamber, excluding the impugned judge. Furthermore Rule 15(F) requires that “at each stage, the challenged judge shall be entitled to present his comments on the matter but shall not take part in the deliberations and in the decision thereof” (emphasis added). The Rule also envisages that the issue of disqualifĳica- tion should be resolved apart from and prior to the issues in the main Motion, otherwise the whole purpose of recusal may be defeated! I note however, that in the present Motion, the applicants not only shied away from naming the Justices that they wanted to see disqualifĳied but also fĳiled the application for disqualifĳica- tion as an integral part of the present Motion. This has put their Lordships of the Trial Chamber in the awkward position fĳirstly, of having to deduce from the facts who is impugned and secondly, of having to go against the well-known principle embodied in the maxim “Nemo Judex in sua Causa” (You cannot be a judge in your own cause!) in determining the issue of bias, thereby clearly violating the 458 part ii provisions of Rule 15(F). Be that as it may I will endeavour at this stage, to examine this issue as best as I can. 28. I must admit that upon the initial reading of Rule 15, it would appear by implication that disqualifĳication or recusal of a judge is envisaged only with respect to either the main trial or the main appeal and does not apply with respect to interlocutory applications or motions such as the present one. However, such a narrow interpretation of Rule 15 would in my view, lead to undesirable and unjust results consequences especially where issues afffecting the rights of Accused persons or the conduct of a fair trial arise in the course of an interlocutory application or motion such as the present one. Accordingly I would adopt a more liberal interpretation of Rule 15 which permits the recusal or disqualifĳication of a judge at any stage of the trial (including Motions), whenever it appears that “his or her impartiality might upon any substantial ground, be reasonably doubted.” That interpretation is in my view, compatible with the solemn undertaking of a judge to serve honestly, faithfully, impartially and conscientiously, not only during the main trial, but at all times. It is also compatible with the practice pertaining in other international Tribunals such as the ICTR and ICTY. If I understand the applicants correctly, they assert that the Honourable Justices of the Trial Chamber having openly declared to the Defence Offfĳice and Registrar on 16th and 18th May 2005 that the Trial Chamber would not countenance the reassignment of Mr. Kevin Metzger and Mr. Wilbert Harris as Defence Counsel respectively for the Accused persons Alex Tamba Brima and Brima Bazzy Kamara, the same judges cannot bring a fair and impartial mind be seen to adjudicate upon the present Motion and Cross-Motion fairly or impartially because they would have already set their minds against such reassignment. A proper determination of this issue requires a full disclosure and examination of the facts surrounding the allegation that there are substantial grounds for doubting the impartiality of the Honourable Justices of the Trial Chamber. 29. The following facts are in my view, relevant. The Trial Chamber orally delivered its earlier Decision granting Mr. Metzger and Mr. Harris leave to withdraw as Defence Counsel on 12 May 2005 and published its reasoned Ruling in respect thereof on 23 May 2005. On 16 May 2005 Ms. Carlton-Hanciles of the Defence Offfĳice orally submitted in open court that “she had received a communication from two of the detainees with regards to a decision which was rendered by this honourable court with instructions that a copy be served on Chambers.” Before Ms. Carlton- Hanciles had an opportunity to disclose the contents of the document13 or the identity of its authors, the Presiding Judge interjected and pronounced that “before

13 This letter is now annexed to Clare Carlton-Hancile’s Submissions in Support of the present Motion, which forms part of the defence Offfĳice’s Reply to the present Motion. interlocutory decisions – trial chamber 459 she (Ms. Carlton-Hanciles) goes any further, this Court read an Order on application. The application was an application to withdraw. That Order was made and any letters, correspondence or documents that seek to go behind that decision cannot be countenanced in this court. The decision has been made.”14 On 17 May 2005 Ms. Elizabeth Nahamya the Deputy Principal Defender wrote a Memorandum to the Registrar which she copied to the Honourable Justices of Trial Chamber II to the efffect that although the Trial Chamber had granted Mr. Kevin Metzger and Mr. Wilbert Harris leave to withdraw from the AFRC Case as assigned Counsel and had ordered that new Lead Counsel be assigned to represent the Accused persons Alex Tamba Brima and Brima Bazzy Kamara, the two accused persons wished to retain the two gentlemen as their chosen Counsel in the interests of continuity and a speedy and fair trial. The Deputy Principal Defender indicated in her Memo that she agreed with the views and concerns of the accused persons and that since both Mr. Kevin Metzger and Mr. Wilbert Harris had expressed willingness to be reassigned, she was inclined to re-appoint them as Lead Counsel for the accused persons instead of assigning the accused persons new Counsel. Given the provisions of Rule 45 giving the Principal Defender power to assign Counsel, it is not clear from the wording of this Memorandum whether the Deputy Principal Defender was merely notifying the Registrar and the Trial Chamber of her decision to reassign Counsel or whether in fact she was seeking the approval of the Registrar before doing so. It is also not clear why she copied her Memorandum to the Trial Chamber, given the argument that the Trial Chamber should not at this early stage be involved in issues of assignment of counsel. On 18 May 2005 the Registrar sent a copy of the Deputy Principal Defender’s Memorandum to the Presiding Judge of Trial Chamber II with a note that read, “Justice Doherty, as promised, this is the formal update by the Defence Offfĳice as to the present position on Metzger and Harris. As I have mentioned to you, as a matter of expediency, there are reasons which would support their return. But from the long term conduct of the trial, and considering both Counsels’ performance and demeanour, my view is that it would be counter-productive to reassign them. One point I would like to put to you for your advice is the issue of who, ultimately, has the fĳinal word on this. Whilst it is clear from the Directive on Assignment of Counsel that the Principal Defender and I have a major role, I cannot believe that a Trial Chamber does not have at least a say if not the fĳinal say.” The Registrar maintains that in addressing the above comments to Justice Doherty he was acting in exercise of his powers under Rule 33(B) of the Rules seeking the views of the Trial Chamber pursuant to that Rule. 30. On the same day the Presiding Judge circulated the Registrar’s Memo and note referred to above to the Justices of Trial Chamber II and orally sought their

14 AFRC Trial, Transcript of 16 May 2005, p. 48, lines 14–24. 460 part ii comments there on. I immediately indicated to the Presiding Judge that I had a number of reservations on the idea of the Trial Chamber expressing an “administrative” or extra-judicial opinion (i.e. outside of court) on an application by the Accused persons to the Principal Defender which application was not offfĳicially before us as a court and wrote a detailed Memorandum to the Presiding Judge articulating my reservations. That Memorandum appears as Annex D to the present Motion but is for ease of reference, also appended to this opinion. I further indicated to the Presiding Judge that due to those reservations I would not participate in giving any opinion or advice to the Registrar in that regard, and further requested her to ensure that any communication or opinion emanating from Trial Chamber II in that regard should clearly indicate that it was not an opinion of the Bench but rather that of the individual Justices giving it. 31. On 18 May 2005 and in response to the Registrar’s request or query referred to above, the Presiding Judge wrote an inter-offfĳice Memo to the Registrar that read as follows:

“Re-Appointment of Mr. Kevin Metzger and Wilbert Harris as Lead Counsel: This matter was already brought orally to the Court and the following order made on 16th May 2005: “This Court read an order on an application. The application was an application to withdraw. That order was made and any letters, correspondence or documents that seek to go behind that decision cannot be countenanced in this Court. The Decision has been made.” That ruling stands and the order stands. The Court will not give audience to Counsel who make an application to withdraw on one day on various grounds, particularly security and then come back the day after and basically say they retract. They cannot make fools of the Court like this, nor can they do it in a “back door” way through the Principal Defenders and the Registrar’s power to appoint Counsel.” The Presiding Judge did not make the distinction that Justice Sebutinde requested to the efffect that this was not the view of the full Bench or Trial Chamber. Justice Sebutinde was not privy to this letter nor was she given a copy of this letter until much later when she asked for it. The Registrar argued in paragraph 19 of his submissions that following his representations pursuant to Rule 33(B) the Trial Chamber was not only acting in the interests of a fair trial but was well within its rights and indeed exercised its responsibilities when it expressed its view quoted above on the reassignment of Counsel. From these submissions it is clear that the Registrar was under the mistaken impression that what he received was the unanimous view of “the Trial Chamber” pursuant to Rule 33(B) of the Rules rather than a view of individual judges. Their Lordships agree in paragraph 60 of the Majority Decision with the Registrar’s submissions. I on the other hand, interlocutory decisions – trial chamber 461 respectfully disagree with such a view. This is on the grounds that not only are the above-quoted comments ultra vires the powers of the Trial Chamber but they did not constitute the opinion of the Trial Chamber as such but rather the opinion of the individual judges who wrote or subscribed to the Presiding Judge’s Memorandum to the Registrar. It is one thing for the Trial Chamber to permit Counsel to withdraw from a case pursuant to an application properly brought before the Trial Chamber under Rule 45(E) of the Rules. It is quite another for individual judges who are not seized with a formal application for reassignment of counsel, to subsequently make an out of court declaration that “they will not give audience to such counsel or countenance any letters, documents or correspondences, (and applications)” that seek to have them reassigned and more so to pass offf that declaration as a view of the Trial Chamber, with a view to influencing the fĳinal decision of the Registrar and Deputy Principal Defender on the issue. Secondly, whilst I recognise the Registrar’s powers to consult the Trial Chamber on the implementation of its decisions under Rule 33(B), I do not agree that that is what transpired between the 17th and 18th May 2005 for the following reasons. That Rule empowers him to make representations to the Trial Chamber as a Bench of three Judges rather than seek the individual opinions of some of the judges. Clearly, this is not what happened. I also note that whilst the Registrar in his submissions refers to the fact that “the Trial Chamber was entitled to express its views regarding the re-assignment of counsel pursuant to Rule 33(B),” he also does not make the distinction that the views he received were not from the Trial Chamber but rather from individual judges even though he too had received a copy of Justice Sebutinde’s Memorandum of 19 May 2005. Furthermore he seems to suggest that the Trial Chamber acted properly and legally pursuant to Rule 33(B) which empowers the Trial Chamber to consult with the Registrar “in the implementation of judicial decisions.” Here I can only point out that the Trial Chamber’s Decision permitting Mr. Metzger and Mr. Harris to withdraw did not expressly or impliedly deal with issues of reassignment of counsel pursuant to an application by an accused person, nor did the Trial Chamber order that counsel be removed from the list of qualifĳied counsel. Any additional views, directives or pronouncements by individual judges that tend to modify or go beyond what the Trial Chamber ordered on 12 May 2005 are, in my view ultra vires. If I am correct then the Registrar’s argument that the Trial Chamber acted within its judicial mandate pursuant to Rule 33(B) cannot hold water. By the same token it can be argued that while Rule 33(B) empowers the Registrar to consult the Trial Chamber on “the implementation of judicial decisions,” in the present case the Trial Chamber had not yet rendered any judicial decision in respect of the Accused persons’ application for reassignment of Counsel (i.e. the present Motion). It was therefore premature for the Registrar to pre-empt an opinion in that regard from the Trial Chamber. In my humble opinion it was equally fallacious for the Trial Chamber to purport to 462 part ii advise the Registrar on an application that was not yet offfĳicially before the Trial Chamber. In that regard, I maintain the views expressed in my Memorandum annexed to this opinion. 32. Furthermore, it is evidently clear from the Transcript of 16 May 2005 that contrary to the Presiding Judge’s Memorandum to the Registrar, the matter of the reassignment of Mr. Kevin Metzger and Wilbert Harris as Lead Counsel was never “orally brought before the court” on that day nor was there a “Decision or order made in respect thereof” that day. There was no oral application before Court made by or on behalf of the accused persons Brima and Kamara on 16 May 2005 to have their former Counsel reappointed. Perhaps that was what Ms. Carlton Hanciles of the Defence Offfĳice wanted to do but was not given a chance to fĳinish what she had come to tell the court. The record shows that she wanted to address the Trial Chamber on a letter written by two of the accused persons but was not permitted to either explain the contents of that letter nor its authors and was interrupted by the Presiding Judge before she could do so. Furthermore, as the Transcript clearly shows, the comments of the Presiding Judge addressed to Ms. Carlton Hanciles on 16 May 2005 referred to an earlier application by Counsel seeking leave to withdraw from the AFRC case and to the Trial Chamber’s earlier Decision in respect thereof. I do not see any connection or relationship between that application and Ms. Carlton Hanciles’ undisclosed letter or the present Motion fĳiled by the accused persons on 24 May 2005. I maintain in this dissenting opinion, that the earlier withdrawal motion should be treated as separate and distinct from the present Motion. It does not appeal to my sense of justice to take the orders in the earlier motion to automatically apply them to the present Motion, and to do so without having heard the merits of the present Motion. Such a stance would in my view, not only be fallacious but would be prejudicial to the statutory rights of the accused persons. 33. Although their Lordships state in paragraphs 32 and 33 of the Majority Decision that “there was no determination of the issue of reappointment of Counsel” and further that “there was no order made in this Trial Chamber refusing reappointment of Counsel per se” and further that “the (Registrar’s) orders for appointment of other Lead Counsel were based on the mandatory provisions of Rule 45(E),” the fact of the matter is that the text of the Transcript quoted above15 and the Presiding Judge’s Memorandum of 18 May 2005 to the Registrar give the impression (however unintended) that the Trial Chamber had as early as 16th and 18th May 2005 made its mind up “not to give audience to Mr. Kevin Metzger and Mr. Wilbert Harris if reappointed as Lead Counsel” and that based on the Trial Chamber’s earlier Decision and orders made pursuant thereto, “the Trial Chamber would not

15 Ibid. interlocutory decisions – trial chamber 463 countenance any letters, correspondence or documents contrary to those earlier orders.” It is also clear from the Registrar’s note addressed to Judge Doherty that he believed that the Trial Chamber had “the fĳinal say” on the issue of reassignment of counsel. Accordingly, his submissions that he was merely “advised” and not “directed” by the Trial Chamber also don’t hold water. In the circumstances the Accused persons would appear justifĳied under Rule 15(A) in reasonably casting doubting the impartiality of the Justices of the Trial Chamber in adjudicating upon the present Motion and Cross-Motion. Be that as it may, the issue remains whether in the circumstances the Honourable Justices of the Trial Chamber could each be trusted to bring an impartial and unprejudiced mind to the issues in the present Motion and Cross-Motion, and not to decide the issues in the same way as they previously exhibited. This is the test to be applied to the judges who are ordinarily presumed to be objective and fair-minded professionals capable of making a reasonable judgement.16 Perhaps at this stage the question is merely academic as the Majority Decision is already made and published! However, sufffĳice it to say in conclusion that the manner in which the application for recusal or disqualifĳica- tion was made an integral part of the present Motion, coupled with the failure of the applicants to name the impugned Justices, render impossible the resolution of this issue in a fair and impartial manner, and my conclusions on the matter perhaps merely of academic interest. (ii)Whether or not the present Motion and Cross-Motion should be heard in open court: 34. The accused persons submitted in their Joint Defence Response to the First Respondent’s Reply fĳiled on 3 June 2005 that“In reliance upon the above arguments, the Registrar’s indication of security concerns as a ground for non-reappointment of Counsel and, above all, recent disclosure by the Registrar that both Counsel, Mr. Kevin Metzger and Mr. Wilbert Harris, have been removed from the list of eligible Counsel for the Special Court for Sierra Leone, the Defence further prays that its Motion of 24th May 2005 together with all subsequent responses and replies thereto be made public and heard in open court.” The First and Second Respondents did not respond to this submission. 35. The right to a public trial is one of the statutory rights guaranteed to an accused person on trial before the Special Court.17 Although the Statute does not defĳine the right to a public hearing there is a wealth of jurisprudence on the subject, which has its roots in the English Common Law. The principle of “publicity”

16 This was the test applied in the “Decision on Application by Momir Talic for the Disqualifĳication and Withdrawal of Judge Mumba, 18 May 2000” cited in the International Criminal Practice by Jones and Powles, 3rd Edition, page 63 at paragraph 2.1.69. 17 Article 17(2). 464 part ii presupposes that a trial is “a public event” and that what transpires in the courtroom is “public property.” The principle also embodies the common law notion that “justice must not only be done but must be seen to be done.” A public trial is recognised as a safeguard against any attempt to employ the court as an instrument of persecution. The knowledge that the trial is subject to contemporaneous review in the forum of public opinion is an efffective restraint on possible abuse of judicial power.18 The public trial guarantee ensures that not only judges, but all participants in the criminal justice system are subjected to public scrutiny. In the case of international tribunals like the Special Court, that public includes not only the people and press of Sierra Leone where the court is situated but also the international community. The right of the Accused persons to a fair and public trial is guaranteed by Article 17(2) and the only statutory limitation upon that right is “subject to measures ordered by the Special Court for the protection of victims and witnesses.” In my opinion the right of an Accused to a public hearing is not limited to the conduct of the main trial but also to the interlocutory applications and motions fĳiled under the Rules by the parties, such as the present one. Rule 73(A) of the Rules of Procedure and Evidence which empowers the Trial Chamber to rule upon motions based solely on written submissions (in order to expedite proceedings) also gives the Trial Chamber the power and discretion to hear motions in open court “where they otherwise decide.” The Trial Chamber’s discretion in deciding to hear a motion in open court under that Rule is unfettered in as far as the Rule does not stipulate any particular circumstances under which the Trial Chamber may or may not hear a motion in open court. I am averse to attaching an interpretation to Rule 73(A) whose efffect is to curtail or deny the Accused persons their rights as guaranteed under Article 17 of the Statute, one of which is “the right to a public hearing.” Such an interpretation would render Rule 73 ultra vires Article 17(2) of the Statute. 36. The Accused persons submitted that their application for a public and open hearing “was above all necessitated by the disclosure by the Registrar that both Counsel (Kevin Metzger and Wilbert Harris) have been removed from the list of eligible Counsel”19 and by “the Registrar’s decision to strike offf Counsel from the list of eligible Counsel in the face of a motion and cross motion for their reappointment while claiming to be acting in the best interests of the accused when they have clearly said that they want their Counsel back.”20 It is a fact that Mr. Kevin Metzger and Mr. Wilbert Harris were removed from the list of qualifĳied Counsel by the Acting Registrar on the 25 May 2005,21 after the fĳiling of the present Motion seeking

18 In re Oliver, 333 U.S. 257 at 268 (1948). 19 Document No. SCSL-2004-16-PT-296, paragraph 6 of the Conclusion, page 9337. 20 Document No. SCSL-2004-16-PT-296, paragraph 18. 21 See Acting Registrar’s letter to Acting Head of Defence Offfĳice dated 25/05/05, Attachment 1 to the Registrar’s Reply. interlocutory decisions – trial chamber 465 their reassignment and while that Motion was under consideration by the Trial Chamber. According to paragraph 1 of the First Respondent’s Response to the present Motion, the Acting Registrar directed that they be removed from the List of Qualifĳied Counsel “when it became apparent that they were still on the List, despite the fact that they had withdrawn from the trial and that their security concerns, which were a major reason which caused them to seek to withdraw, had not been addressed by Counsel in any manner with the court Registry.” Since the reassignment of Mr. Kevin Metzger and Mr. Wilbert Harris as Defence Counsel for the Accused persons is one of the key issues to be resolved in the present Motion, their removal from the list of Counsel qualifĳied to serve as Defence Counsel while the matter is still under judicial consideration, has the efffect not only of pre-empting the Trial Chamber’s decision on that issue but is also capable of rendering any relief that the Trial Chamber might grant to the Accused persons in that regard, nugatory. While the Rules provide for the withdrawal of Counsel from representing an accused person,22 they do not contemplate or provide for the removal of Counsel from the Principal Defender’s list of eligible Counsel maintained pursuant to Rule 45(C) of the Rules, once Counsel has qualifĳied for placement and been included on the said list. The provisions pertaining to the removal of Counsel from the Principal Defender’s list are only found in Article 13(E) and (F) of the Directive on Assignment of Counsel. According to Article 13 the power to remove Counsel from the Principal Defender’s list is vested in the Principal Defender, subject to review of the President of the Special Court. However, the Directive does not stipulate the grounds or reasons for removal of Counsel from the Principal Defender’s list. There is no provision either in the Rules or in the Directive on Assignment of Counsel that expressly or impliedly empowers the Registrar to remove Counsel from the Principal Defender’s list of eligible Counsel maintained pursuant to Rule 45(C) of the Rules. Considering that in the present case it is the Registrar’s offfĳice and not the Principal Defender that issued the order for removal of Mr. Kevin Metzger and Mr. Wilbert Harris from the Principal Defender’s list of eligible Counsel and considering further that this was done while the present Motion and Cross-Motion for their reassignment were under judicial consideration, the Accused persons are in my view, entitled to question the legality as well as bona fĳides of the Registrar’s administrative decision in that regard, including the grounds for Counsel’s removal, and to subject that decision to public scrutiny, through an open hearing. In my opinion the application for an open and public hearing of the present Motion and Cross-Motion should in the interests of justice be granted. I will comment later on the Registrar’s decision to remove Counsel from the Principal Defender’s list in greater detail under the appropriate issue.

22 Rule 45(D) and (E). 466 part ii

(iii)Whether or not the Trial Chamber has jurisdiction to entertain the present Motion and Cross-Motion: 37. The Accused persons have on the one hand, called upon the Trial Chamber to entertain the present Motion pursuant to Article 17(4)(c) and (d) of the Statute, Rule 54 of the Rules and to review the administrative decision of the Registrar pursuant to the inherent powers of the court.23 The Registrar and First Respondent on the other hand questioned the jurisdiction and competence of the Trial Chamber to entertain the present Motion and ultimately to review his administrative decisions. He argued that while “the Trial Chamber was entitled pursuant to the provisions of Rule 33(B) to express the view that Counsel who have withdrawn from the case are not to be reassigned,”24 and “entitled pursuant to its inherent powers to ensure that the accused receive a fair trial,”25 the Trial Chamber “has no power to order anyone to enter into a contract. The process of contract negotiations is a matter for individual parties to reach agreement on the terms of a contract. That is a matter for the parties and should not be constrained by any order to enter into a contract from the Trial Chamber.”26 On her part, the Acting Principal Defender and Second Respondent does not question the Trial Chamber’s jurisdiction to entertain the Motion and Cross-Motion and in fact “implores the Trial Chamber to grant the Accused persons’ request for reassignment of their former Lead Counsel.”27 38. Essentially the issue for determination is whether the Trial Chamber is competent and can draw upon its inherent jurisdiction to review the administrative Decisions of the Registrar, fĳirstly in denying the reassignment of Mr. Kevin Metzger and Mr. Wilbert Harris as Lead Defence Counsel, and secondly in removing their names from the Principal Defender’s List of eligible Counsel, and whether the Trial Chamber is competent ultimately to grant the orders sought by the Accused persons Alex Tamba Brima and Brima Bazzy Kamara. I have stated earlier on in this opinion that I do not agree with the views expressed by their Lordships in paragraph 37 to the efffect that “the Trial Chamber does not have the power to interfere with the law relating to privity of contract” or in paragraph 49 and 50 to the efffect that “it is unclear on what legal grounds this application is made. The application does not say it is founded on Rule 45(D) and makes no submission that there

23 Paragraph 36 of the present Motion and paragraph 20(4) and (5) of the Joint Defence response to 1st Respondent’s Reply to the present Motion. 24 Paragraphs 19, 20 and 21 of the First Respondent’s Response to the present Motion. 25 Paragraphs 19 and 28, ibid. 26 Paragraph 27, ibid. 27 See last paragraph of the Second Respondent’s Response to the present Motion, the Cross- Motion and Defence Offfĳice’s reply to Registrar’s Response to Cross-Motion. interlocutory decisions – trial chamber 467 are exceptional circumstances that would allow the Trial Chamber to exercise its jurisdiction under Rule 45(D).” In my opinion Rule 45(D) of the Rules applies to a situation where an accused person is dissatisfĳied with the services of his current assigned Counsel and wishes for good cause to have him or her replaced. In such a case, Rule 45(D) permits the accused person to make his request for the replacement of such Counsel either before the Principal Defender or under exceptional circumstances, before the Trial Chamber. Clearly Rule 45(D) does not cover the present situation where assigned Counsel (Mr. Metzger and Mr. Wilbert Harris) have already withdrawn from representing an accused person pursuant to a court order under Rule 45(E) of the Rules and where the accused persons wish to have their former Counsel reassigned to represent them but the Registrar has removed the names of Counsel from the Principal Defender’s List of qualifĳied Counsel. For that matter, I am not aware of any other Rule that provides for the present situation. In such situations where the Rules are silent, the Trial Chamber must if called upon, draw upon its inherent powers if it is in the interests of justice to do so. 39. There is a wealth of authorities supporting the principle that an international tribunal such as the ICTY, ICTR and the Special Court can invoke their inherent jurisdiction to entertain a motion alleging a violation or denial of the statutory rights of accused persons, in the overall interests of justice and in order to prevent a violation of those rights. For instance in the Prosecutor v. Tadic28 the Appeals Chamber held that the Tribunal did have jurisdiction to examine the plea against its own jurisdiction reasoning that such authority “is inherent in every judicial organ.” In the Prosecutor v. Blaskic29 where the validity of a subpoena that Judge Macdonald of Trial Chamber II had issued both to the Republic of Croatia and to its Defence Minister personally, was called into question. On the issue of inherent jurisdiction the Appeals Chamber observed, “The power to make this judicial fĳinding is an inherent power. The International Tribunal must possess the power to make all those judicial determinations that are necessary for the exercise of its primary jurisdiction. This inherent power inures to the benefĳit of the International Tribunal in order that its basic judicial function may be fully discharged and its judicial role safeguarded.”

28 Decision on the Defence Motion for Interlocutory Appeal for Jurisdiction, Case No. IT-94-1, 2 October 1995, Appeals Chamber (Tadic (Jurisdiction) ), referred to in an instructive article on the subject by Louise Symons entitled “The Inherent Power of the ICTY and ICTR” in the International Criminal Law Review 3: 369-404, 2003. 29 Judgement on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997, Case No. IT-914, 29 October 1997, Appeals Chamber. 468 part ii

40. In the Barayagwiza (Abuse of Process) Decision of the ICTR30 the central issue was one of alleged abuse of process by the Prosecutor, for which the Appeals Chamber found it necessary to its inherent power to dismiss the Indictment. The Trial Chamber had dismissed the Applicant’s motion for orders to review or nullify his arrest and provisional detention. The Applicant appealed against the decision. Allowing the appeal, the Appeals Chamber held that “an International Tribunal had inherent jurisdiction or supervisory powers to curb an abuse of process or travesty of justice.” In the Prosecutor v. Momcilo Krajisnik31 the Registrar who in the ICTY performs the functions of the Principal Defender, arbitrarily and unreasonably assessed the means of Krajisnik an indigent accused, and declared him only partially indigent for legal aid purposes. The Trial Chamber drawing upon its inherent jurisdiction quashed the Registrar’s decision. On the Registrar’s appeal against the Trial Chamber’s decision, the Appeals Chamber observed that “It should be clear from the analysis in the previous section that the incidence of error and unreasonableness in the Registrar’s decision is such as to justify an order quashing that decision. The Registrar should reconsider his position in the light of the Chamber decision.” I note that our sister Tribunals have not hesitated to invoke their inherent jurisdiction to oversee and supervise Offfĳicials of these International Tribunals on the grounds that such oversight and supervision is fundamental to the Court’s ability to regulate its own process and to ensure a fair trial. Closer to home, our own Special Court has pronounced itself on the issue. Ironically, less than one year ago, issues similar to the ones now before us arose between the same parties, namely the Accused Alex Tamba Brima versus the Registrar and Acting Principal Defender in the case of the Prosecutor v. Alex Tamba Brima et al., Case No. SCSL-04-16-PT.32 In that case the Registrar purportedly acting as the Principal Defender refused to enter into a Legal Services Contract with Mr. Terence Michael Terry, then assigned Counsel for the Accused Alex Tamba Brima on two grounds. Firstly the Registrar insisted that before he enters into such contract, Counsel should undergo a medical examination and should be certifĳied medically fĳit to permanently and at all times be at the disposal of the accused. Secondly the Registrar argued that having represented Ex President Charles Ghankay Taylor Mr. Terry could not under Article 14(C) of the Directive on assignment of Counsel be permitted to represent the Accused Alex Tamba Brima in the same Trial Chamber. In an application by the Accused Alex Tamba Brima asking the court to review the administrative decision of the Registrar and Acting

30 Case ICTR-97-13, 3 November 1999, Appeals Chamber. 31 ICTY Case No. IT-00-39-PT, 20 January 2004. 32 Brima-Decision on Applicant’s Motion Against Denial by the Acting Principal Defender to Enter a Legal services Contract for the Assignment of Counsel, 6 May 2004. interlocutory decisions – trial chamber 469

Principal Defender to deny him assigned Counsel of his choosing, Trial Chamber I said the following: “We would like to say here that dismissing this Motion either on the merits or on the jurisdictional grounds as the respondents urge us to do, would amount to conceding to the merits of the objections of both the 1st and 2nd Respondents to our jurisdiction and competence to entertain it and in particular, would be approving a judicial endorsement of the 2nd Respondent’s submissions, claiming immunity from a judicial review of the 1st Respondent’s acts which are palpably arbitrary, ultra vires and offfensive to the law. This, in our opinion, would further amount to a total abdication on our part, of our sovereign obligation and judicial responsibility as a court and as Judges, to subject questionable administrative acts to Judicial scrutiny and review in order to check and curb arbitrary acts, conduct, or decisions taken by our Administrative Offfĳicials in particular, and by the Executive organs in general. The Applicant and his Counsel in the situation in which they fĳind themselves, certainly deserve the protection of the court, notwithstanding the jurisdictional objections raised by both the 1st and 2nd Respondents which we dismiss as frivolous, unfounded and bereft of any merits. The stand we have taken in this regard is consonant with the justifĳication the Learned Editors of Halsbury’s Laws of England advance to justify the utility of the inherent jurisdiction of the court in terms of a residual source of power to enable the court …”in particular to ensure the observance of the due process of the law, to prevent improper vexation or oppression” such as the Applicant and his Counsel were indeed subjected to by the 1st Respondent in the instant case.” 41. In a way it is surprising that less than a year after Trial Chamber I issued the above decision, the Registrar would once again question the competence and jurisdiction of the Special Court to review his administrative decisions over the rights of accused persons and in particular the right of an indigent accused person to choose assigned Counsel. Be that as it may, sufffĳice it to say that I disagree with the views of my colleagues in the Majority Decision which views seem to ignore the established jurisprudential trends in this area. I fĳind that the Trial Chamber is indeed competent to entertain the present Motion and Cross-Motion in the interests of justice and may for the protection of the rights of the Accused persons, draw upon its inherent power to scrutinise, review and nullify the administrative decisions of the Court’s Offfĳicials whose efffect impacts negatively upon those rights. (iv) Whether or not the Accused persons Alex Tamba Brima and Brima Bazzy Kamara are entitled under Article 17(4)(c) and (d) of the Statute of the Special Court to choose Mr. Kevin Metzger and Mr. Wilbert Harris respectively, as assigned Counsel, after each of those Counsel withdrew from representing the respective accused persons in the AFRC Trial pursuant to Rule 45(E) of the Rules. Alternatively, whether or not Mr. Kevin Metzger and Mr. Wilbert Harris are ineligible for reassignment as Defence Counsel for the respective Accused persons, by 470 part ii

reason of Counsel having withdrawn from representing the respective accused persons in the AFRC Trial pursuant to Rule 45(E) of the Rules. The dispute that has given rise to the present Motion and Cross-Motion essentially centres around the question whether the Applicants can in pursuit of their statutory rights under Article 17(4)(c) and (d) of the Statute on choose Mr. Kevin Metzger and Wilbert Harris as their assigned Lead Counsel, after the Trial Chamber permitted Counsel on the 12 May 2005 to withdraw from the AFRC trial pursuant to Rule 45(E) of the Rules. The controversy is heightened by the fact that before the present Motion was offfĳicially fĳiled before Trial Chamber II on the 24 May 2005, certain views were expressed from the Trial Chamber on 16 May 2005 to the efffect that “this Court read an Order on application. The application was an application to withdraw. That Order was made and any letters, correspondence or documents that seek to go behind that decision cannot be countenanced in this court. The decision has been made”33 and on 18 May 2005 to the efffect that “This matter was already brought orally to the Court and the following order made on 16th May 2005: This Court read an order on an application. The application was an application to withdraw. That order was made and any letters, correspondence or documents that seek to go behind that decision cannot be countenanced in this Court. The Decision has been made. That ruling stands and the order stands. The Court will not give audience to Counsel who make an application to withdraw on one day on various grounds, particularly security and then come back the day after and basically say they retract. They cannot make fools of the Court like this, nor can they do it in a “back door” way through the Principal Defenders and the Registrar’s power to appoint Counsel.34” The controversy was further heightened by the fact that while this issue was under judicial consideration the Registrar on 25 May 2005 removed the said Counsel from the list of Counsel qualifĳied to serve as assigned Counsel, thereby efffectively rendering them ineligible under the Rules to serve as assigned Counsel. 42. The Applicants Alex Tamba Brima and Brima Bazzy Kamara submitted that notwithstanding the withdrawal of their former assigned Counsel pursuant to Rule 45(E) of the Rules the Accused persons are entitled under Article 17(4)(c) and (d) of the Statute to request the Principal Defender to reassign Mr. Kevin Metzger and Mr. Wilbert Harris as their respective Lead Counsel on the following grounds: (i) That the Accused persons have a right to be consulted regarding their preferred choice and that their choice of Counsel may only be denied upon “reasonable and valid” grounds including proven incompetence, misconduct or serious violations of Counsel’s respective Codes of Conduct or instances where Counsel’s name has been removed from the Principal

33 Ibid. 34 Ibid. interlocutory decisions – trial chamber 471

Defender’s list of qualifĳied Counsel pursuant to Article 13 of the directive on Assignment of Counsel; (ii) That the Accused persons have indicated their preference of Mr. Kevin Metzger and Mr. Wilbert Harris to other qualifĳied Counsel and have full confĳidence and trust in their abilities and competence as their respective Lead Counsel; (iii) That Mr. Kevin Metzger and Mr. Wilbert Harris have each indicated their willingness and full-time availability to be reassigned as Counsel for the Accused; (iv) That there are no reasonable and valid grounds for not reassigning Mr. Kevin Metzger and Wilbert Harris as Lead Counsel; (v) That the reassignment of Mr. Metzger and Mr. Harris as Lead Counsel will promote a fair and expeditious trial as Counsel are already familiar with the case and any new appointments would necessarily result in undue delay on the part the newly appointed Counsel who would require adequate time to efffectively represent the Accused persons; (vi) That the Trial Chamber has no power or authority to interfere in the statutory right of an Accused person to choose assigned Counsel, by giving directives that are contrary to that choice. 43. The Deputy Principal Defender in her Response fully agrees with the submissions of Accused persons and “implores the Trial Chamber to grant the present Motion.” The Deputy Principal Defender submitted further in her Cross-Motion that the wording of Rule 45(E) relating to assignment of “another Counsel” does not preclude Counsel who has been permitted to withdraw from subsequently being reassigned to defend the same accused person provided that the original reasons for withdrawal no longer exist and both Counsel and the Accused are in agreement about the reassignment. The Deputy Principal Defender argued that since both Mr. Metzger and Mr. Harris had indicated to her their willingness and availability for reassignment they should in the interests of justice be reassigned. 44. The Registrar opposes the Accused persons’ application for reassignment of Mr. Kevin Metzger and Wilbert Harris as Lead Counsel and defends his decision not to reassign them, on the following grounds: (i) That Mr. Kevin Metzger and Wilbert Harris are no longer eligible for reassignment as the Acting Registrar removed their names from the Principal Defender’s List of qualifĳied Counsel on 25 May 2005; (ii) That Mr. Kevin Metzger and Wilbert Harris have not unequivocally indicated their willingness and availability to serve as Lead Counsel if reassigned; (iii) That the Registrar is obligated to give efffect to the Trial Chamber’s earlier Decision that permitted Mr. Kevin Metzger and Wilbert Harris to withdraw from the AFRC trial and ordered that “other Counsel” be assigned to 472 part ii

replace them, as well as their subsequent advice pursuant to Rule 33(B) of the Rules; (iv) That the Registrar’s decision not to reassign Mr. Kevin Metzger and Wilbert Harris as Lead Counsel is in the interests of the Accused persons because the Trial Chamber in its earlier decision adjudged Counsel no longer fĳit to represent the Accused persons by reason of their security concerns; (v) That the appointment of new Counsel would not unduly delay the trial as the Trial Chamber has in its earlier Decision put measures in place to curb delay including the appointment of co-Counsel to represent the Accused persons in the interim. 45. I have throughout this opinion belaboured the point that the previous withdrawal application by Mr. Kevin Metzger and Mr. Wilbert Harris pursuant to Rule 45(E) of the Rules is separate and distinct from the present Motion by the Accused persons Brima and Kamara seeking their reassignment as Lead Counsel. In the absence of hard evidence that the two motions are related in any way, there is no justifĳication for treating the present Motion with suspicion and per- ceiving it as some kind of vexatious or underhanded scheme by the Accused persons in connivance with their former Counsel (and perhaps the Deputy Principal Defender) to “go behind the Trial Chamber’s earlier Decision” or to abuse court process or to avert the course of justice. To do so would in my humble opinion, be a serious error of judgment and would amount to an abdication of our judicial duty to protect and uphold the statutory rights of the Accused persons as guaranteed by Article 17(4)(d) of the Statute. In this regard I reiterate the judicial stand that I took in my Memorandum to their Lordships on 19 May 2005 when the Registrar approached the Trial Chamber pursuant to Rule 33(B) of the Rules for advice on the issue. Article 17(4)(d) of the Statute guarantees to the Applicants as indigent accused persons, the right to be represented by Counsel of their choosing. I fully agree with the following observations of Trial Chamber I aptly expressed one year ago that, “It should be noted that this provision is mandatory and even though jurisprudential and interpretational evolutions have signifĳi- cantly whittled down this right which is now more qualifĳied than it is absolute. The Chamber will not, given the allegations of serious breaches of the rule of law and the due process, lose sight of the pre-eminently mandatory and defence protective character of the provisions of this Article.”35 The practice pertaining in the ICTR from which the Special Court borrows much of its own, is that the Registry vested with the statutory authority to assign Counsel, permits the accused to select any

35 Brima Decision, ibid., paragraph 41. interlocutory decisions – trial chamber 473 available counsel from the list of [counsel] compiled for that purpose and is prepared to add counsel to the list if selected by an accused, provided that such counsel meets the necessary criteria.36 The ICTR provisions relating to assignment of counsel are similar to those of the Special Court. I agree therefore that although generally the right of an indigent accused to counsel of his choosing may not be unlimited, each case should be considered upon its own merits and the choice of the Accused ought to and should be respected unless there are well founded rea- sons37 or reasonable and valid grounds38 not to assign Counsel of their choice. Can it be said in the instant case that there are well founded reasons or reasonable and valid grounds justifying the Registrar’s decision to deny the Accused their choice of Counsel? 46. The placement of counsel on the Principal Defender’s list presupposes that counsel has fulfĳilled the eligibility criteria prescribed under Rule 45(C) of the Rules. I note that Article 13(B) of the Directive on Assignment of Counsel purports to modify the eligibility criteria by introducing additional criteria.39 Once counsel has been placed on the Principal Defender’s list, the Rules do not contemplate the removal of counsel from that list. At the most, the Rules simply provide for withdrawal or replacement of counsel from a particular case40 or denial of audience by the Trial Chamber for misconduct41 but certainly not removal from the Principal Defender’s list. Again the provisions for removal of counsel from the Principal Defender’s list are introduced by the Directive on Assignment of Counsel,42 which Directive also purport to modify the provisions for withdrawal of assigned counsel.43 It is of course debatable whether the provisions of an administrative Directive promulgated by the Registrar can operate to amend, modify or replace a Rule or Rules promulgated by the Plenary of Judges pursuant to Article 14 of the Statute.44 Be that as it may, it has been suggested by the Accused persons and the Deputy Principal Defender that once Counsel have been included on the Principal

36 Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-A, Appeals Chamber, Judgment, 1 June 2001, paras. 50-64. 37 This was the test applied in The Prosecutor v. Martic, Case No. IT-95-11-PT, Decision on Appeal against Decision of the Registry, 2 August 2002 and in Gerald Ntakirutimana. 38 This was the test applied in The Prosecutor v. Knezevic, Case No. IT-95-4-PT, Decision on Accused’s Request for Review of Registrar’s Decision as to Assignment of Counsel, 6 September 2002. 39 Article 13(B)(iv) and (vi) of the Directive introduces new criteria not prescribed by Rule 45(C) of the Rules. 40 Rule 45(D) and (E). 41 Rule 46(A) and (B). 42 Article 13(E). 43 Article 24 of the Directive on Assignment of Counsel substantially modifĳies the provisions of Rule 45(D) and (E) by introducing a parallel avenue for withdrawal of assigned counsel. 44 Trial Chamber I held in its Brima Decision, ibid., para. 35 that The Directive on Assignment of Counsel cannot operate to either replace or to amend the Rules of Procedure, as to do so would be ultra vires the Registrar’s delegated powers. 474 part ii

Defender’s list pursuant to Rule 45(C) of the Rules the only “reasonable and valid” grounds for rejecting an indigent accused person’s choice of a particular counsel from that list is where that counsel has been found guilty of misconduct or a serious breach of the Code of Conduct or where the Principal Defender has removed his name from the list of qualifĳied Counsel pursuant to Article 13 of the Directive on Assignment of Counsel. The Accused and the Deputy Principal Defender further argued that the voluntary withdrawal of counsel pursuant to Rule 46(E) of the Rules does not lead to automatic removal of that counsel from the Principal Defender’s list, nor does it act as an estoppel against his reassignment if the Accused person chooses to have Counsel back. They maintain in other words, that the withdrawal of counsel pursuant to Rule 45(E) of the Rules does not constitute “reasonable and valid grounds” for denying an accused person’s choice of counsel. Their Lordships in the Majority Decision disagree with those arguments and perceive the Accused persons’ choice of counsel as simply “an attempt by the accused persons acting in concert with Mr. Metzger, Mr. Harris and the Deputy Principal Defender, to go behind the earlier order of the Trial Chamber, which their Lordships will not countenance.” Their Lordships further perceive the voluntary withdrawal of Mr. Metzger and Mr. Harris as an estoppel to their reassignment and perhaps a justifĳication for their removal by the Registrar from the Principal Defender’s list, since they do not challenge that removal in their Decision. As such they perceive the right of each of the Accused persons Brima and Kamara as being limited to choice of “another counsel” (other than Mr. Metzger or Mr. Harris). For this conclusion their Lordships rely on the wording of Rule 45(E) of the Rules. 47. As earlier stated in this opinion, I respectfully do not share the views of their Lordships on this issue on the grounds that the present Motion is not an application by Mr. Metzger and Mr. Harris for review of the Trial Chamber’s earlier Decision. I also do not share the beliefs of my colleagues expressed in paragraph 35 of the Majority Decision to the efffect that “the Accused persons do not genuinely wish to be represented by those particular Counsel and that their real motive is to cause as much disruption to the trial as possible.” I believe that the Trial Chamber simply does not possess sufffĳicient information or grounds suggesting mala fĳides or bad motives on the part of the Accused persons. For me to draw such conclusions would be nothing short of judicial recklessness on my part. While it is true that the Accused persons have on past occasions “given Counsel limited instructions to represent them during the trial” it is also true that this was not on account of any alleged misconduct or incompetence on the part of assigned Counsel nor on any alleged loss of confĳidence by the Accused in their assigned counsel. On the contrary the Accused persons have on every such occasion reiterated the fact that have confĳidence in and high regard for their Counsel. The reasons for the Accused limiting their instructions to counsel have in the past related to the manner in interlocutory decisions – trial chamber 475 which the Trial Chamber has dealt with certain issues in the trial such as the contempt proceedings,45 but not to the conduct or competence of assigned counsel. It is therefore not true or fair to accuse the applicants of inconsistent behaviour in this regard. Secondly, although one of the grounds put forward by Mr. Metzger and Mr. Harris in their withdrawal motion was that the withdrawal of instructions by their clients had made Counsel’s work impossible, the Trial Chamber quite rightly observed and ruled that “the inability of Counsel to obtain instructions from his client does not constitute “the most exceptional circumstances” within the meaning of Rule 45(E).”46 In other words the Trial Chamber did not recognise the inability of Counsel to obtain instructions from his client as constituting a valid impediment to Counsel continuing to represent that client. Since that precedent has been set, it should not matter to the Trial Chamber if a similar situation should arise in future between the Accused and their assigned Counsel and it is not necessary n my opinion, to require the Accused persons to make an undertaking or commitment that the situation would not arise again in the future, as suggested in paragraph 35 of the Majority Decision. For now, it is sufffĳicient that the Accused persons have indicated that they would prefer their former counsel to any others that might be chosen for them. 48. Then there is the issue of whether or not the “security concerns” that initially caused Mr. Metzger and Mr. Harris to withdraw from this case, still exist and whether those security concerns now operate either as a bar to their reassignment or a justifĳication for removal of their names from the Principal Defender’s list. It will be remembered that in their withdrawal motion Counsel stated then that “there was a signifĳicant threat of danger to their persons or family in the conduct of the Defence case, and that undisclosed sources had informed Counsel that all Court Appointed Lawyers who work for the Special Court are deemed to be party to a conspiracy to subvert the sovereignty of the Laws of Sierra Leone. In consequence whereof they and their families would be called upon to answer for their decision to accept Special Court appointment.”47 Counsel also alluded to incidents where a potential Defence witness and clerk to one of the other Defence Counsel were detained and intimidated in separate incidents. Counsel also alluded to a telephone call that one of them received from abroad containing threats. It is also a fact that at the time of the withdrawal motion, Counsel had not taken any formal steps to have their alleged threats investigated by the relevant departments of the Special Court. None the less, the Trial Chamber ruled that these “security

45 See the three letters of the Accused persons quoted in the Trial Chamber’s Decision on the Confĳidential Joint Defence Application for Withdrawal by Counsel for Brima and Kamara and on the Request for Further Representation by Counsel for Kanu, 23 May 2005. 46 Ibid., paragraph 39. 47 Ibid., paragraph 6. 476 part ii concerns” constituted “most exceptional circumstances” under Rule 45(E) of the Rules warranting the withdrawal of Counsel. The Accused persons have in paragraph 34 of the present Motion indicated that “their respective Defence teams have met with the Principal Defender’s Offfĳice and share a common view that these threats could be investigated by the Registry and reasonable steps taken to ensure the safety of Counsel, if and when necessary, and that both Mr. Metzger and Mr. Harris have indicated that they are agreeable to this arrangement and are willing to continue representing the accused persons once reassigned.” In support of their submissions the Accused persons attached a copy of a letter from Mr. Metzger E-mailed to the Defence Offfĳice in which he indicated that both he and Mr. Harris were willing and available to be reassigned as Defence Counsel for the Accused persons, provided that their initial security concerns were duly investigated. Furthermore, the Accused persons submitted that in the interests of continuity of their case and a speedy trial, they would prefer to be represented by their former counsel who are already acquainted with the trial rather than be represented by new counsel who would require time to get acquainted with the case. The Deputy Principal Defender agreed with the submissions of the Accused persons and submitted in addition that in her opinion since both Mr. Metzger and Mr. Harris have indicated their willingness and availability to serve as reassigned Counsel and none of them has hitherto been found guilty of proven misconduct, there is no legal impediment to their reassignment as Lead Counsel, as requested by the Accused persons. For the same reason she maintained that there are no legally justifĳiable reasons for the Registrar to remove their names from the Principal Defender’s list. 49. Although the Registrar did not contradict the above submissions he submitted that in his opinion it is not enough for Mr. Metzger and Mr. Harris to indicate their willingness to be reassigned. They must, in his opinion, directly apply to be reassigned.48 Clearly the Registrar makes no distinction between the present Motion made solely by the Accused persons in pursuit of their statutory rights, and an application by Counsel for inclusion on the Principal Defender’s list, nor does he indicate under what Rule Counsel may apply for “reassignment.” It is clear that the Statute and Rules of Procedure and Evidence primarily guarantee the rights of Accused persons, in particular the right to choose counsel, and further ensure that assigned counsel fulfĳil the minimum requirements for defending accused persons. The matter of assignment or reassignment of counsel to defend a particular accused person is not one over which counsel is expected “to apply” but rather is the sole prerogative of the Principal Defender in consultation with the accused persons. Accordingly the issue of Counsel “applying for reassignment”

48 Paragraph 3 of the Registrar’s Response. interlocutory decisions – trial chamber 477 does not arise. The Registrar further expresses concerns that “to date there has been no approach to court to discuss the security concerns of Counsel nor any determination made that the court is even able to meet those security concerns, and if it could, how long it would take to investigate and implement any recommended security measures. There is no evidence that Counsel have reassessed their security concerns so it can be presumed that the conditions upon which they sought to withdraw from the trial still exist.” Clearly the Registrar’s concerns are all purely speculative and are only capable of ascertainment once Counsel are reassigned and are back on board. As regards the Registrar’s submissions that Mr. Metzger and Mr. Harris are no longer eligible for reassignment, I am strongly of the view that the Registrar only removed their names from the Principal defender’s list precisely in order to render them ineligible for reassignment. I will deal with this issue in greater detail below. Sufffĳice to say here that the removal of Counsel’s names from the Principal Defender’s list was, in my view, not done in good faith and therefore cannot be used as a ground to thwart the Accused persons’ choice of counsel. I would conclude this issue by stating that I agree with the submissions of the Accused persons and the Deputy Principal Defender on this issue. I acknowledge the fact that both Mr. Metzger and Mr. Harris if reassigned would in future have to be more diligent in expeditiously addressing their security concerns to the relevant departments of the Special Court. For now it is sufffĳicient that they have indicated their readiness and willingness to defend the accused persons, notwithstanding their earlier security concerns. I should perhaps add that in my opinion, the feelings of “fear” and “insecurity” are a personal and subjective afffair and that the Trial Chamber should not only listen when Counsel express their feelings of fear and insecurity but should also listen when Counsel say that those feelings have subsided or no longer prevent them from efffĳiciently performing their duties. I resolve this issue in the afffĳirmative. (v) Whether the Registrar acted within his powers in directing the Deputy Principal Defender not to reassign Mr. Kevin Metzger and Mr. Wilbert Harris as Defence Counsel for the respective Accused persons and in subsequently removing their names from the Principal Defender’s list of eligible Counsel. 50. The Registrar submitted that “Mr. Metzger and Mr. Harris were directed to be removed by the Acting Registrar from the List of Qualifĳied Counsel suitable for assignment on 25 May when it became apparent that they were still on the List. This was despite the fact that they had withdrawn from the trial and that the security concerns, which were a major reason which caused them to seek to withdraw, had not been addressed by Counsel in any manner with the court Registry. In the circumstances the Accused persons have no basis upon which to make their application because the 478 part ii

Counsel they request are not on the list from which they can choose.”49 The Registrar further maintained that in refusing to reappoint Mr. Metzger and Mr. Harris as Lead Counsel for the Accused persons Brima and Kamara respectively, he was “upholding the statutory rights of the Accused persons under Article 17(4)(d) of the Statute and in the interests of justice.”50 He further submitted that the Trial Chamber in permitting Counsel to withdraw found them unfĳit to continue representing the Accused persons and ordered that other counsel be assigned to replace them. The Registrar submitted that when he rejected the Accused persons’ choice of former Counsel for reassignment he was simply implementing the Trial Chamber’s earlier Decision that ordered the assignment of new Counsel, as well as the view expressed by the Hon. Justices pursuant to Rule 33(B) that they would not accept reassignment of Mr. Metzger and Mr. Harris as Lead Counsel for the Accused persons.51 The Registrar further argued that “the Deputy Principal Defender as Acting head of the Defence Offfĳice acted contrary to the order of the Trial Chamber in being willing to reappoint Mr. Metzger and Mr. Harris as Lead Counsel for the Accused persons”52 and that consequently the Registrar acted legally and within his powers under Article 16 of the Statute in directing the Deputy Principal Defender to assign new counsel for the Accused persons. The Registrar argued that “the position of Principal Defender is not recognised under the Statute therefore the offfĳice of the Principal Defender has no statutory authority and that title comes under the authority of the Registrar and stafff are subject to his administrative direction including ensuring that court orders are implemented. It therefore cannot be said that the Registrar is therefore illegally interfering with the role of the Acting head of the Defence Offfĳice when he directs her to assign other Counsel to represent the Accused persons. These directions and action to appoint Counsel are administrative matters within the authority of the Registrar.”53 Lastly the Registrar argues that “the Trial Chamber has no power to order anyone to enter into a contract. The process of contract negotiations is a matter for individual parties to reach agreement on the terms of a contract. That is a matter for the parties and should not be constrained by any order to enter a contract from the Trial Chamber.”54 Their Lordships in the Majority Decision agree with the Registrar’s submissions in their entirety. 51. In reply to the Registrar’s submissions the Applicants maintained that the Registrar’s direction for the removal of Mr. Metzger and Mr. Harris from the List of

49 Paragraphs 1 and 2, ibid. 50 Paragraph 14, ibid. 51 Paragraphs 19 and 24, ibid. 52 Paragraph 25, ibid. 53 Paragraphs 5 and 23, ibid. 54 Paragraph 27, ibid. interlocutory decisions – trial chamber 479

Qualifĳied Counsel was arbitrary, ultra vires and had no legal justifĳication. They argued further that under Article 13(E) of the Directive on Assignment of Counsel the power to remove Counsel from that list is vested solely in the Principal Defender and that in any event, at the time the accused fĳiled the present Motion on 24 May 2005 the names of Counsel were still on that list. The Accused argue that the Registrar had a duty to investigate the security concerns of Counsel and in the absence of proven misconduct or breach of the Code of Conduct, Mr. Metzger and Mr. Harris should never have been removed from the List. The Accused further argued that the circumstances that caused them to withdraw instructions from Counsel including the issue of the contempt proceedings, no longer exist. On her part the Deputy Principal Defender argued that under the Rules and Directive on Assignment of Counsel, the power to assign and replace counsel and to include and remove from the list of qualifĳied counsel is solely vested in the Principal Defender’s Offfĳice. She argued further that although the Defence Offfĳice is administratively and fĳinancially accountable to the Registrar, his role with respect to matters concerning the rights of accused persons is limited to giving support to that offfĳice and does not extend to review or usurpation of the Principal Defender’s decisions with regard to the rights of accused persons. The Deputy Principal Defender further argued that in the absence of the substantive offfĳice holder, she served in an acting capacity as head of the Defence Offfĳice and by virtue of that capacity exercised the full powers of the Principal at the material time. She also argues that since both Mr. Metzger and Mr. Harris have no record of misconduct and have indicated their willingness and availability for reassignment, the Accused persons should be permitted to choose them as their reassigned counsel. 52. The resolution of this issue requires a prior understanding of the genesis of the Defence Offfĳice of the Special Court as well the inter-relationship between Defence Offfĳice and the Principal Defender on the one hand and the offfĳice of the Registrar of the Special Court on the other. The traditional practice appertaining in international tribunals like the ICTY, ICTR (and until January 2003 the Special Court for Sierra Leone), has been that there was no independent professional section or department of the international tribunal charged with looking after the rights of accused persons appearing before the Tribunal. For example, while the ICTY and ICTR have administrative offfĳices that handle the afffairs of the Defence, neither of the ad hoc international tribunals a permanent institution entrusted with “ensuring the rights of suspects and accused persons” appearing before them. Prior to April 2002 the offfĳice of the Registrar handled all aspects of the Defence. This practice has however, been the subject of much international criticism as it does not provide for efffective representation of the Defence and has led to signifĳi- cant inequalities between the Defence and Prosecution. In her “Report on the 480 part ii

Establishment of a Defence for the Special Court for Sierra Leone”55 Sylvia de Bertodano observes: “One of the principal guarantees of the right to a fair trial is the provision of adequate facilities for an accused person’s defence. Trials can only achieve this legitimacy if there is equality of arms between the defence and prosecution. The prosecution of crimes under international law requires not only an efffective prosecution offfĳice, but also an efffective defence. If this is not provided, trials will not be regarded as having been fair, and their verdicts will not be regarded as legitimate. The forthcoming trials before the SCSL will be subjected to a high degree of national and international scrutiny. The court cannot affford to give the impression that the process is overloaded in favour of the prosecution. Defence is often overlooked in the early stages of planning for international trials. The ICTY in its early stages made no proper provision for the defence, and in the preliminary months of its fĳirst case was employing only one defence lawyer. The Special Panels for Serious Crimes in East Timor were planned without any regard to the need for defence, and began their operation with only one junior overseas lawyer acting as a public defender, along with newly qualifĳied national public defenders. The spectacle of nervous newly qualifĳied awyersl facing up to experienced international prosecutors before the Special Panels in East Timor was not an edifying one. Although attempts have been made to improve the situation, there has never been any real recov- ery from this position. On the other hand, other institutions have given rise to grave concerns at the unmanageable costs of providing defence representation. These have surfaced in relation to both ad hoc tribunals, in particular the ICTR, where over-billing, dishonest practices and lack of proper caps and controls has resulted in a grossly inflated defence budget. The Registry of the SCSL expresses concern that both these extremes should be avoided, and that a system should be instituted which succeeds in improving a high standard of representation for defendants at a proportionate and manageable cost.” 53. In January 2003 the Management Committee reached the conclusion that a Defence Offfĳice should be created and headed by a Principal Defender, with a Defence Advisor and three Duty Counsel together with administrative support. Prior to the establishment of the Defence Offfĳice the role of the Defence had been essentially ignored through all the early stages of the creation of the court. The “bare bones” of Article 17 of the Statute, which provides for rights and minimum guarantees of an accused person does not stipulate how those rights and guarantees were to be secured. Thus although not originally provided for in the Statute of the Special Court, the Defence Offfĳice became an innovation incorporated into Rule 45 of the Rules of Procedure and Evidence, and entrusted with “ensuring the rights of suspects and accused persons.” Commenting on the newly established Defence Offfĳice of the Special Court, Rupert Skilbeck56 writes:

55 The Report was compiled at the request of the Registry of the Special Court and No Peace Without Justice (NPWJ), 28 February 2003. 56 Defence Advisor, SCSL, February-August 2004. Paper entitled “Building the Fourth Pillar: Defence Rights at the Special Court for Sierra Leone” interlocutory decisions – trial chamber 481

“If the Special Court is judged a success, the Defence Offfĳice is likely to be a structure that is repeated in other countries. If that is the case, then the unique model of the Defence Offfĳice is clearly one that should be adopted. It has to be acknowledged that it is absolutely essential for the defence to be considered on an equal basis to the prosecution from the very start, in terms of legal capacity, administrative support, investigations, public relations, media coverage and outreach. Without this there cannot be a fair trial.” 54. It is clear from its genesis that the Defence Offfĳice was established to “ensure the statutory rights of suspects and accused persons,” which role the Manage- ment Committee and Plenary of Judges reckoned could no longer be adequately performed by the Registrar’s Offfĳice. With the promulgation of Rule 45 of the Rules, that role was solely vested in the Defence Offfĳice and no longer lies with the Registry. The fact that the Defence Offfĳice was provided for in the Rules rather than the Statute does not, in my opinion, detract from the important role and mandate of that offfĳice. What is of paramount importance is that the establishment of the Defence Offfĳice was commissioned by both the Management Committee and the Plenary of Judges, the two legislative arms of the Special Court. Against that background the Registrar’s submission that “the position of Principal Defender is not recognised under the Statute therefore the offfĳice of the Principal Defender has no statutory authority” is inconceivable. Under Rule 45 of the Rules the Registrar is charged with the responsibility of establishing, maintaining and developing the Defence Offfĳice. The Registrar is not charged with the running or operations of the Defence Offfĳice. That responsibility lies solely with the head of the Defence Offfĳice, namely the Principal Defender. In carrying out its mandate under Rule 45 of “ensuring the rights of suspects and accused persons” the Defence Offfĳice headed by the Principal Defender is expected to carry out the functions stipulated in Rule 45(A), (B), (C) and (D), including compilation and maintenance of a list of quali- fĳied criminal defence counsel, as well as assignment and/or replacement of counsel to indigent suspects and accused persons. Again these important functions are vested solely in the Defence Offfĳice and performed by or under the supervision of the Principal Defender. The Directive on Assignment of Counsel sets out further guidelines for the Principal Defender’s role of assignment of counsel as well as maintenance of the list of qualifĳied counsel. There is nothing in the Directive remotely suggesting that the Principal Defender should perform those functions in consultation with or subject to the direction of the Registrar. It would appear to me on the reading and interpretation of Rule 45 and the Directive on Assignment of Counsel, that the Defence Offfĳice in the performance of its functions, was deliberately envisaged to act with a high degree of autonomy and independence from any other body. It is precisely the autonomous and independent nature of the Defence Offfĳice that calls for the highest calibre and professionalism of its offfĳicials, subject only to judicial review. Thus while the Registrar is expected to exercise 482 part ii administrative and fĳinancial oversight over the Defence Offfĳice and to give it logistical and other administrative support, he is not expected to take over the functions of the Defence Offfĳice or to veto the decisions of its offfĳicials made in pursuance of their mandate. That in my opinion, would appear to be an accurate statement of the law on this issue. 55. If I am right, it logically follows that where the Defence Offfĳice generally or the Principal Defender in particular has taken a certain stand or decision on matters falling within their mandate (i.e. ensuring the rights of suspects and accused persons), any purported interference or veto of that stand or decision (other than by way of judicial review) is clearly ultra vires and null and void. Given that in this case the Acting Principal Defender had in exercise of her mandate taken a stand to reappoint Mr. Metzger and Mr. Harris as Lead Counsel for Brima and Kamara respectively, the Registrar’s decision directing her not to reappoint them and instead to appoint other counsel, is clearly ultra vires and null and void. By the same token the Registrar’s unilateral decision to remove the names of Mr. Metzger and Mr. Harris from the Principal Defender’s list, against the advice of the Acting Principal Defender was also clearly ultra vires and null and void. 56. Regarding the argument that the Deputy Principal Defender acted without proper authority since she had not substantively been appointed “Acting Principal Defender,” the law is already settled on this matter. In the Brima Decision referred to earlier, Trial Chamber I dealt with the issue of court offfĳicials serving in an acting capacity and said the following: “In view of the very nature and functioning of public or private services, it is, and should always be envisaged, that the substantive holder of the position is not expected to there at all times. In order to ensure a proper functioning and a continuity of services with a view to avoiding a disruption in the administrative machinery, the Administration envisages and recognises the concept of “Acting Offfĳicials” in the absence of their substantive holders.” The Trial Chamber went on to observe that, “Where an offfĳicial is properly appointed or designated to act in a position during the absence of the substantive holder of that position, the Acting Offfĳicial enjoys the same privileges and prerogatives as those of the substantive offfĳicial and in that capacity can take the decisions inherent in that position. The trial Chamber would like to observe that to perform such functions which would give rise to far reaching and contentious con- frontations as has happened in the instant case, the concerned offfĳicial should have been regularly, clearly and expressly be appointed or designated as Acting Principal Defender whilst waiting for the recruitment of the substantive holder of the position. We say this because the exercise of administrative duties, functions or discretions, is founded on the notion of empowerment to exercise the duties that go with that offfĳice or the discretions that relate to it. This empowerment is conferred on the offfĳicial purporting to so act, by a legislative, statutory, regulatory or administrative instrument which clearly defĳines his competence, and on which the substantive holder of the position functions and takes decisions.” interlocutory decisions – trial chamber 483

57. In the instant case it is a fact that at the time of fĳiling of the present Motion there was no substantive holder of the Offfĳice of Principal Defender as Ms. Simone Monasebian the former Principal defender had left the Special Court and Mr. Vincent Mnehielle the new Principal Defender had not yet reported for duty. It was during this administrative “vacuum” that the present Motion was fĳiled as “extremely urgent.” Consequently Ms. Elizabeth Nahamya the Deputy Principal Defender found herself in the unenviable position of having to choose between waiting for the new Principal Defender to arrive or simply assuming his powers in order to handle an emergency. This was because the Registrar had not offfĳicially designated anyone to serve in an “acting capacity” pending the arrival of the new Principal Defender. Ideally, such a vacuum should never be allowed to occur as it may compromise the rights of the accused persons. Rather than jeopardise the rights of the Applicants it was expedient that the next most senior offfĳicial of the Defence Offfĳice, namely the Deputy Principal Defender should step into the shoes of an “Acting Principal Defender,” as Ms. Nahamya did. I fĳind therefore that she acted diligently and lawfully. In concluding this issue I fĳind that the Registrar’s decision directing the Deputy Principal Defender not to reassign Mr. Kevin Metzger and Mr. Wilbert Harris as Defence Counsel for the respective Accused persons and in subsequently removing their names from the Principal Defender’s list of eligible Counsel were ultra vires his powers and are null and void. This brings me to the penultimate issue. (vi) Whether the Deputy Principal Defender was bound to comply with the directives of the Registrar relating to the non-assignment of Counsel and their removal from the list of qualified Counsel. 58. Having found as I did above that the Registrar’s decision directing the Deputy Principal Defender not to reassign Mr. Kevin Metzger and Mr. Wilbert Harris as Defence Counsel for the respective Accused persons and in subsequently removing their names from the Principal Defender’s list of eligible Counsel were ultra vires his powers and are null and void, I fĳind also that the Deputy Principal Defender was not bound to comply with those directives. I would add here that I fĳind the issues raised in the Deputy Principal defender’s Cross- Motion superfluous as they have already largely been addressed in the present Motion. (vii) Whether the Trial Chamber has power to review the Registrar’s decision not to reassign Mr. Kevin Metzger and Mr. Wilbert Harris as assigned Counsel, and his decision to remove their names from the list of qualified Counsel. 59. I have earlier on in this opinion examined the inherent jurisdiction of the Trial Chamber in reviewing the actions of administrative Offfĳicials of the court in order to check and curb their arbitrary acts, conduct or decisions. It logically follows from those earlier fĳindings that the Trial Chamber has not only the inherent 484 part ii jurisdiction but also the power to review the Registrar’s decision not to reassign Mr. Kevin Metzger and Mr. Wilbert Harris as assigned Counsel, and his decision to remove their names from the list of qualifĳied Counsel. I sum up the role of the First Respondent in this matter as that of an offfĳicial who acted in excess of his statutory and administrative powers. It is therefore my considered opinion that the Trial Chamber should have allowed the present Motion and that the arguments advanced to support it are founded as against those of the First respondent which are both factually and legally unconvincing.

Conclusion

60. Finally, recognising that the Majority Decision unquestionably prevails, I would allow the present Motion and declare the Registrar’s decision directing the Deputy Principal Defender not to reassign Mr. Kevin Metzger and Mr. Wilbert Harris as Defence Counsel for the respective Accused persons and in subsequently removing their names from the Principal Defender’s list of eligible Counsel, ultra vires and are null and void. I would further order that the Principal Defender immediately reinstates the names of M. Kevin Metzger and Wilbert Harris on the list of qualifĳied Counsel. I would further order that the Principal Defender complies with the choice of counsel that the Accused persons Alex Tamba Brima and Brima Bazzy Kamara have made. Done at Freetown, Sierra Leone, this 11th day of July 2005. TRIAL CHAMBER II

Before: Justice Teresa Doherty, Presiding Judge Justice Richard Lussick Justice Julia Sebutinde Registrar: Robin Vincent Date: 25 June 2005 PROSECUTOR Against Alex Tamba Brima Brima Bazzy Kamara Santigie Borbor Kanu (Case No.SCSL-04-16-T)

CORRIGENDUM DISSENTING OPINION OF THE HON. JUSTICE JULIA SEBUTINDE FROM THE MAJORITY DECISION ON THE EXTREMELY URGENT CONFIDENTIAL JOINT MOTION FOR THE RE-APPOINTMENT OF KEVIN METZGER AND WILBERT HARRIS AS LEAD COUNSEL FOR ALEX TAMBA BRIMA AND BRIMA BAZZY KAMARA, AND DECISION ON CROSS-MOTION BY THE DEPUTY PRINCIPAL DEFENDER TO TRIAL CHAMBER II FOR CLARIFICATION OF ITS ORAL ORDER OF 12 MAY 2005

NOTING that the Hon. Justice Julia Sebutinde issued her “Dissenting Opinion From the Majority Decision on the Extremely Urgent Confĳidential Joint Motion for the Re-appointment of Kevin Metzger and Wilber Harris as Lead Counsel for Alex Tamba Brima and Brima Bazzy Kamara, And Decision on Cross-Motion by the Deputy Principal Defender to Trial Chamber II for Clarifĳication of its Oral Order of 12 May 2005” (“the Dissenting Opinion”) on 11 July 2005; NOTING further that there were certain typographical errors and omissions in the Dissenting Opinion that should be rectifĳied; NOW THEREFORE pursuant to Rule 54 of the Rules of Procedure and Evidence of the Special Court (“The Rules”), the Dissenting Opinion is amended as follows: 1. In the third paragraph of the “Introduction” by inserting immediately after the fĳirst sentence the following sentence: “Rule 26bis enjoins the Chamber to ensure amongst others, that ‘the proceedings before the Special Court are conducted with full respect for the rights of the accused.’ ” 2. In paragraph 5, line 4, by deleting the word “being” occurring immediately before the word “tantamount.” 3. In paragraph 5, line 7, by substituting for the word “included” occurring therein, the word “include.” 4. In paragraph 7, line 2, by deleting the word “in” occurring immediately after the phrase “indication that.” 5. In paragraph 11, line 5, by inserting immediately the word “to,” the phrase “can be applied.” 6. In paragraph 11, foot note 8, by inserting immediately the word “Barayagwuriza” occurring therein, the name “Barayagwiza.” 7. In paragraph 13, line 5, by deleting the word “in” occurring immediately before the word “tantamount.” 8. I In paragraph 15, line 1, by inserting immediately the word “expressed” the phrase “in paragraph 53 of the Majority Decision.” 9. In paragraph 19, line 2, by substituting for the date “19 May 2005,’ the date “18 May 2005.” 10. In paragraph 28, line 5, by deleting the word “results.” 11. In paragraph 28, line 19, by inserting between the words “mind and “be” the word “or.” 12. In paragraph 32, line 19, by substituting for the phrase “to automatically” with the phrase “and to automatically.” interlocutory decisions – trial chamber 487

13. In paragraph 40, line 3, by inserting immediately after the word “to” the word “use.” 14. In paragraph 41, line 22, by deleting the word “on.” 15. In paragraph 46, line 10, by substituting for the word “purport,” the word “purports.” 16. In paragraph 46, line 21, by substituting for the phrase “Rule 46(E)” the phrase “Rule 45(E).” 17. In paragraph 47, line 12, by substituting for the phrase “on any alleged loss” occurring therein, the phrase “on account of any alleged loss.” 18. In paragraph 47, line 27, by deleting the letter “n” occurring therein and substituting in its place the word “in.” 19. In paragraph 52, line 9, by inserting immediately after the phrase “international tribunal” occurring therein, the word “has.” 20. In paragraph 54, line 30, by inserting immediately after the phrase “its offfĳi- cials,” occurring therein, the phrase “their decisions being.” 21. In paragraph 56, line 6 of the second quotation, by deleting the word “be” occurring therein. 22. In paragraph 57, line 3, by substituting for the name “Mnehielle” the name “Nmehielle.” Done at Freetown, Sierra Leone, this 25th day of July 2005.

TRIAL CHAMBER II

Before: Justice Teresa Doherty, Presiding Judge Justice Richard Lussick Justice Julia Sebutinde Registrar: Robin Vincent Date: 15 June 2005 PROSECUTOR Against Alex Tamba Brima Brima Bazzy Kamara Santigie Borbor Kanu (Case No.SCSL-04-16-T)

DECISION ON OBJECTION TO QUESTION PUT BY DEFENCE IN CROSS-EXAMINATION OF WITNESS TF1-227

TRIAL CHAMBER II (“Trial Chamber”) of the Special Court for Sierra Leone (“Special Court”), composed of Justice Teresa Doherty, presiding, Justice Richard Lussick and Justice Julia Sebutinde; SEISED of the “Submissions on Objection to Question Put by Defence in Cross- examination of Witness TF1-227,” fĳiled on 14 April 2005 on behalf of Prosecution (“Motion”); CONSIDERING the “Joint Defence Response to Submissions on Objection to Question Put by Defence in Cross-examination of Witness TF1-227 and Motion to Rule on Additional Information and Order of Witnesses,” fĳiled on 19 April 2005; CONSIDERING ALSO the “Prosecution Submissions in Response to Relief Requested by Defence in their Reply Dated 12 April 2005 and in their Response to Submissions Dated 19 April 2005,” fĳiled on 25 April 2005.

DECIDES AS FOLLOWS

I. Preliminary Matter

1. As a preliminary matter, the Defence notes that it has fĳiled pages and documents in excess of the limits provided by the Practice Direction for Filing Documents before the Special Court for Sierra Leone (“Practice Direction”) and seeks leave pursuant to Article (6) of the Practice Direction. 2. Leave is granted in this Decision, but the parties are hereby warned not, in future, to present the Trial Chamber with a fait accompli. Application/for leave, with reasons, shall be made orally or in writing prior to fĳiling. 3. In their Response, Defence further raises matters outside the ambit of the original objection as detailed hereafter. By leave of the Trial Chamber, these issues are hereby exceptionally considered and ruled upon.

II. Procedural Background

4. An oral objection was raised by Prosecution Counsel in the course of cross examination. As the objection raised important issues of evidence, the rights and limitations of cross examination and the privilege, if any, between the Prosecution and its witnesses, the Trial Chamber ordered both Parties to submit written arguments. interlocutory decisions – trial chamber 491

III. Submissions of the Parties

Prosecution Objection and Submission 5. Prosecution has fĳiled the following objection: (1) As a matter of principle, the question goes beyond the scope of what is permissible in cross-examination being a question relating to the substance of a pre-testimony meeting between a Prosecution lawyer and a witness. (2) Questions relating to pre-testimony meetings between a Prosecution lawyer and a witness ought properly to be limited to the number of such meetings, the dates of the meetings, and their duration, save in exceptional circumstances. Examples of such exceptional circumstances are: (a) Where an allegation of misconduct or mala fĳides on the part of the Prosecution is substantiated: that is, where a prima facie case for misconduct or mala fĳides is made out by the Defence. (b) Alternatively, where the Defence is aware, whether through the Prosecution or the witness in answer to questions, of any modifĳica- tion of disclosed statements (whether original, supplemental, or interview or proofĳing notes) made in the course of a pre-testimony meeting. 6. The Prosecution refers to Rule 90(F), and submits that in controlling the mode of interrogating witnesses – so as to “make the interrogation […] efffective for the ascertainment of truth” – the Chamber may be guided by the general principle which is articulated in Rule 90(H) and Rule 90(G) of the Rules of the ICTY and ICTR respectively. They state that “Cross examination ought not to be used to support a fĳishing expedition. Such cross-examination clearly goes beyond questioning which is ‘efffective for the ascertainment of truth’ and is liable to be a waste of the court’s time.” 7. Prosecution mainly relies on the decision in the case of the Prosecutor v. A. Bizimungu and others (“Bizimungu Decision”).1 Defence Response 8. The Defence draws a distinction between the Rules of the Special Court, and Rule 90(H) of the Rules and Procedures of the ICTY/ICTR which contain specifĳic provisions for cross examination.

1 ICTR, The Prosecutor v. Augustin Bizimungu et al., Case ICTR-00-56-T, Decision on Bizimungu’s Urgent Motion Pursuant to Rule 73 to Deny the Prosecutor’s Objection Raised during the 3 March Hearing, 1 April 2005. 492 part ii

9. The Defence reply notes that the Bizimungu Decision stated, inter alia, that: “The Chamber notes that questions posed with respect to preparatory meetings between the Prosecution and witnesses could relate to the witness’s credibility.” but “The Chamber however notes that a presumption exists that Counsel perform their duties in accordance with the ethical principles that govern the legal profession in their respective countries and that apply, mutatis mutandis, before the Tribunal. This includes Counsel’s conduct during preparatory meetings with witnesses.”2 10. The Defence submits that “not all members of the Prosecution holding interviews with witnesses are necessarily members of the bars of their respective countries, and are thus not bound by any national ethical rules,” which we understand to mean rules of professional ethics. 11. Further, the Defence state they cannot verify if the preparatory meeting in issue was done by a person admitted to the Bar. 12. The Defence avers that the Bizimungu Decision is based on the rules of the ICTR, and there is no equivalent rule in the Rules of Procedure and Evidence of the Special Court for Sierra Leone and that therefore the Bizimungu Decision in not of authority to this Court. 13. The Defence further disputes that the Prosecution submission on Rule 90(F), “which limits the scope of cross-examination on pre-testimony meetings between Prosecution Counsel and their witnesses […] will generally not be relevant neither to the issues nor to credibility.” They submit that such a fĳinding is in contradiction of the Rules of the Special Court “because the Provisions of Rule 90(H) of the ICTR were omitted from our Rules.” Thus, they argue, the Special Court provisions allow questions on a “broader basis than merely the subject matter of the evidence in chief.” They submit they are not obliged to seek leave to pursue such questions. 14. The Defence further raises issues concerning the fĳiling of additional witness statements and the order of the witnesses.

III. Deliberations

Prosecution Objection to Defence Question 15. It is common ground between the parties that there is no precise rule in our Rules of Procedure and Evidence equivalent to Rule 90(H) of the ICTR. The powers and duties of the Special Court are contained in Rule 90(F) which provides:

2 Ibid., paras. 34 and 35. interlocutory decisions – trial chamber 493

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 efffective for the ascertainment of the truth; and ii. Avoid the wasting of time. 16. The Trial Chamber has a duty to both ascertain the truth and avoid wasting time on matters of evidence where there is no other specifĳic provision. Rule 89(B) imposes a duty on the Trial Chamber to

[…] apply rules of evidence which will best favour a fair determination of the matter before it consonant with the spirit of the Statute and the General principles of law” 17. The Trial Chamber also has to bear in mind the primary duty to ensure a fair trial. To quote Archbold International Courts Practice, Procedure and Evidence paragraph 8 – 48(a):

The concept of a fair trial is the cornerstone of the work of the ad hoc International Tribunals. The overriding consideration in all proceedings before international criminal courts is the fairness of the proceedings, as provided for in Articles 20(1) and 19(1) of the ICTY and ICTR Statutes respectively, “The Trial Chambers shall ensure that a trial is fair.” As was held in Prosecutor v. Tadic, Judgement, ICTY Appeals Chamber, July 15, 1999, para. 43: “This provision mirrors the corresponding guarantee provided for in international and regional human rights instruments: the International Covenant on Civil and Political Rights (1966) (ICCPR), the European Convention on Human Rights (1950), and the American Convention on Human Rights (1969). The right to a fair trial is central to the rule of law: it upholds the due process of law.” […] A fair trial demands that certain minimum requirements are met to protect the rights of the accused, as set out in Articles 20 and 21 of the ICTR and ICTY Statutes respectively. The rights of victims must also be taken into consideration, but “the Tribunal’s Statute makes the rights of the accused the fĳirst consideration, and the need to protect victims and witnesses the secondary consideration” (Prosecutor v. Brdanin, Decision on third motion by Prosecution for protective measures, November 8, 2000, para. 13; also see, Prosecutor v. Tadic, Decision on the Prosecution’s motion requesting protective measures for witness R, July 31, 1996 at 4). The principle of a fair trial must not result in there being an excessive infringement on the rights of the Prosecution, for example, to conduct efffective cross-examination of the Defence witnesses (see, Prosecutor v. Blaskic, Decision on the defence motion for protective measures for witnesses D/H and D/I, September 25, 1998). […] The Statute and Rules must be read to include the rights of parties to be heard in accordance with the judicial character of the Trial Chambers. See, Prosecutor v. Jelisic, Judgement, Appeals Chamber, July 5, 2001, para. 27. 18. With that general duty imposed upon this Trial Chamber, we are of the opinion that the Trial Chamber should not ignore its duty of upholding the general principles of fairness in the proceedings incumbent upon it by holding that the 494 part ii absence of an equivalent Rule 90(H) precludes the Trial Chamber limiting cross-examination. 19. We cite with approval the juxtaposition posed by Hon. Judge Jorda in The Prosecutor v. Blaskic.3 He drew a parallel to a defence Counsel being asked “what exactly happened in your relationship between the witness that you are offfering and yourself,” to the Defence cross-examining a Prosecution witness “to see what happened within the confĳidential relationship between the Prosecutor and the witness.” His Honour held that such line of questioning was “not appropriate” (ex tempore ruling). 20. We consider the Trial Chamber may follow the principles enunciated in the Bizimungu Decision. Unless there are specifĳic and substantiated allegations of misconduct on the part of Counsel, “[t]he Chamber concludes that questions relating to pre-testimony meetings between the Prosecutor and witnesses, while permissible, must in the absence of any substantiated allegation of misconduct be limited to the number of such meetings, the dates of the meetings, and their duration.”4 21. We note that use of the word “Counsel” in the decision and Defence Counsel’s submission that not all Prosecution interviewers who speak to witnesses are bound by the ethics of a Bar. 22. The Rules defĳine “Prosecutor” as “The Prosecutor appointed pursuant to Art. 3 of the Agreement between the United Nations and the Government of Sierra Leone.” 23. Article 3(3) of the Agreement between the United Nations and the Government of Sierra Leone on the Establishment of the Special Court provides inter alia: The Prosecutor and the Deputy Prosecutor shall be of high moral character and possess the highest level of professional competence and extensive experience in the conduct of investigations and prosecutions of criminal cases. 24. The highest level of professional competence and experience brings with it an awareness that those under their control must act in a professional, competent and ethical manner. It carries a duty to supervise and ensure conformity with such standards. 25. Unless the contrary is shown by way of a specifĳic allegation of misconduct on the part of Prosecution stafff any questions relating to pre-testimony meetings between Prosecution stafff and witnesses are similarly restricted as ruled above.

3 The Prosecutor v. Blaskic, Case No. IT-95-14-T, Transcripts, 21 August 1997, pp. 1812-1813. 4 Bizimungu Decision, para. 37. interlocutory decisions – trial chamber 495

26. For the foregoing reasons we answer the objections as follows: (1) We uphold the objection and fĳind the question goes beyond the scope permissible in cross-examination. (2) Unless the contrary is shown by way of a specifĳic allegation of misconduct on the part of Prosecution stafff any questions relating to pre- testimony meetings between Prosecution stafff and witnesses are similarly restricted as ruled above.

Motion to Rule on Additional Information and Order of Witnesses 27. In their submissions in reply, Defence Counsel raised two further issues concerning the character of the “additional information” documents served on the Defence on the grounds of Rule 67(D) and seeks orders in this regard. 28. We restate that any replying submission should not be used as a means of seeking other relief. This practice will not be allowed in future. 29. Defence Counsel seeks the following rulings and consequential orders: (1) That late service of additional information upon defence counsel in accordance with the continual disclosure obligations of Rule 66(A)(i) is prejudicial, and such disclosure should be made 42 days before the witness be called or at least 2 weeks before the witness is called, and (2) The list of witnesses intended to be called be provided 14 days in advance. 30. The Trial Chamber considers the written submissions made and the related oral submissions made in Court on 22 April 2005. 31. The Trial Chamber has concurrently given a decision on a defence motion on disclosure of all original witness statements, interview notes and investigators’ notes pursuant to Rules 66 and 68.5 That decision has pertinent issues of law relevant to the issues to the present decision. We refer in particular to paragraph 16 thereof. 32. The Defence argue that Rule 67(D) provides that “if either party discovers additional information or materials which should have been produced earlier that party shall promptly notify the other.” They submit that “discover” should not be interpreted to covering the situation of fĳinding additional information as is the current practice. Such additional information is already obtained, it cannot be “discovered.”

5 The Prosecutor v. Brima et al., Case No. SCSL-2004-16-T, Decision on Joint Defence Motion on Disclosure of All Original Witness Statements, Interview Notes and Investigators’ Notes Pursuant to Rules 66 and/or 68, 4 May 2005. 496 part ii

33. In its Response to the new issues raised, the Prosecution outlines the logistical matters that lead to late proofĳing, undertakes to make every efffort to disclose any additional material as early as possible, and submits that there has been no breach of Rules 66 and 68. 34. As stated in a decision of Trial Chamber I in the case of the Prosecutor v. Norman and others,6 Rule 67 “requires reciprocal disclosure.” 35. Rule 67(D) imposes a duty on both parties. The time provided for such reciprocal disclosure is provided in Rule 67(A) “as early as reasonably practicable and in any event prior to the commencement of the trial.” 36. That time has now expired. The duty of disclosure on Prosecution is now not under Rule 67(D) but Rule 66(A)(ii). We consider that Rule 67(D) does not apply. However, the Prosecution is under a continuing duty to disclose exculpatory material throughout the case as provided by Rule 68(B) and as confĳirmed by the jurisprudence of the Special Court.7

Late Service 37. We repeat the view of this Chamber stated in its Decision on Joint Defence Motion on Disclosure of All Original Witness Statements, Interview Notes and Investigators’ Notes Pursuant to Rules 66 and/or 688 at paragraph 16: “Th e role of the Trial Chamber: It is the role of the Trial Chamber to enforce disclosure obligations in the interests of a fair trial, and to ensure that the rights of the Accused, as provided in Article 17(4), to have adequate time and facilities for the preparation of his or her defence and to examine, or have examined, the witnesses against him or her, are respected. Late Disclosure: Where evidence has not been disclosed or is disclosed so late as to prejudice the fairness of the trial, the Trial Chamber will apply appropriate remedies, which may include the exclusion of such evidence. The specifĳic remedy applied may vary from case to case.” 38. We agree with the observation of the ICTR in the case of the Prosecutor v. Bagosora and others and do not: [b]elieve that there is a serious possibility that the Rules could be interpreted to mean, as argued by the Defence, that any new evidence disclosed or discovered after the start

6 The Prosecutor v. Norman et al., Case No. SCSL-2004-14-T, Ruling on disclosure of Witness statements, 1 October 2004, para. 2. 7 The Prosecutor v. Norman et al., Case No. SCSL-2004-14-T, Ruling on disclosure of Witness statements, 1 October 2004, para. 2. 8 The Prosecutor v. Brima et al., Case No. SCSL-2004-16-T, Decision on Joint Defence Motion on Disclosure of All Original Witness Statements, Interview Notes and Investigators’ Notes Pursuant to Rules 66 and/or 68, 4 May 2005. interlocutory decisions – trial chamber 497

of a trial is categorically inadmissible. In the Chamber’s view, this decision involves an exercise of discretion based on an assessment of the factual signifĳicance of the evidence, within the framework of clear legal guideline.9 39. The Trial Chamber cannot impose one inflexible time limit applicable to the many possible allegations and situations that arise in a Trial. We consider the Court would not be acting in the interests of the proper administration of justice or of an expeditious hearing if it imposed a defĳinite period of notice applicable to all and every case. 40. Late notice of further statements which contain new allegations is curable by allowing time to the Defence to properly prepare. 41. Defence Counsel in their oral submission went further than in their written submission stated above, and submitted that the witness ought not to give evidence at all.10 42. In the Case of The Prosecutor v. Sesay and others, Trial Chamber I of the Special Court observed: It is evident that the premise underlying the disclosure obligations is that the parties should act bona fĳides at all times. There is authority from the evolving jurisprudence of the international criminal tribunals that any allegation by the defence as to a violation of the disclosure rules by the Prosecution should be substantiated with prima facie proof of such a violation.11 And further: Secondly, as regards the Ruling of the 23rd of July, 2004, consistent with the aforementioned statement of the law, we adopted and applied the reasoning in the case of the Prosecutor v. Bagosora to the efffect that in determining whether to exclude additional or supplemental statements of prosecution witnesses within the framework of prosecutorial disclosure obligations, a comparative evaluation should be undertaken designed to ascertain (i) whether the additional statement is new in relation to the original statement (ii) whether there is any notice to the defence of the event the witness will testify to in the Indictment or Pre-trial Brief of the Prosecution, and (iii) the extent to with the evidentiary material alters the incriminating quality of the evidence of which the Defence already had notice. In adopting this reasoning, we were underscoring the judicial function of the Chamber to ensure “that the parties act bona fĳides at all times.12 43. There has been no allegation of any deliberate violation of the disclosure Rules. We are of the opinion that under the present circumstances a refusal to

9 The Prosecutor v. Bagosora et al., Case No. ICTR-98-41-T, Decision on Certifĳication of Appeal Concerning Will-say Statements of Witnesses DBQ, DP, DA, 5 December 2003, para. 10. 10 Transcripts of 22 April 2005, page 47 line 21 fff. 11 The Prosecutor v. Sesay et al., Case No. SCSL-04-15-T, Ruling, 3 February 2005, para. 4. 12 The Prosecutor v. Sesay et al., Case No. SCSL-04-15-T, Ruling, 3 February 2005, para. 19. 498 part ii hear a witness would not be the appropriate remedy for late disclosure of a witness statement. Further, we re-state paragraph 20 of our Decision on Joint Defence Motion on Disclosure of All Original Witness Statements, Interview Notes and Investigators’ Notes Pursuant to Rules 66 and/or 68.13 44. For the foregoing reasons, we are not prepared to allow 14 days in every case where disclosure is made near or at the time a witness is called. Such a ruling would be inflexible and amount to an amendment of the Rules of Procedure and Evidence which is outside the powers and jurisdiction of the Trial Chamber. Each application must be assessed on its own facts. 45. The second submission by Defence relates to the list of witnesses supplied by Defence. The Trial Chamber notes the compliance of the Prosecution with the order of 9 February 2005 and the provisional list of 10 witnesses. In the absence of defĳinite evidence from Defence that witnesses other than those listed pursuant to the order of 9 February 2005 were called there are no grounds for any order in relation to the listing and order of witnesses. 46. However, the Trial Chamber restates the obligation on the Prosecution to give adequate time to prepare to the Defence. FOR THESE REASONS 1. Leave is given to fĳile pages in excess of the limits provided in Article 6 of the “Practice Direction for Filing Documents before the Special Court for Sierra Leone.” 2. The Prosecution’s fĳirst objection is upheld; 3. The Prosecution’s second objection is upheld; 4. The Defence request for 14 days notice of disclosure of all Prosecution statements of additional information is refused; 5. The Defence request seeking listing of witnesses is refused.

Done at Freetown, Sierra Leone, this 15th June 2005.

13 The Prosecutor v. Brima et al., Case No. SCSL-2004-16-T, Decision on Joint Defence Motion on Disclosure of All Original Witness Statements, Interview Notes and Investigators’ Notes Pursuant to Rules 66 and/or 68, 4 May 2005. TRIAL CHAMBER II

DECISION ON JOINT DEFENCE APPLICATION FOR LEAVE TO APPEAL AGAINST THE RULING OF TRIAL CHAMBER II OF 5 APRIL 2005

TRIAL CHAMBER II (“Trial Chamber”) of the Special Court for Sierra Leone (“Special Court”), composed of Justice Teresa Doherty, presiding, Justice Richard Lussick and Justice Julia Sebutinde; RECALLING the Oral Ruling of the Trial Chamber given in open Court on 5 April 2005; SEISED of the Joint Defence Application for leave to Appeal against the Ruling of Trial Chamber II of 5 April 2005 fĳiled on 8 April 2005 on behalf of Brima, Kamara and Kanu (“Motion”); CONSIDERING the Defence Confĳidential Index Record I and II to the Motion, fĳiled on 8 April 2005; NOTING the Prosecution Response to the Motion, fĳiled on 14 April 2005; NOTING ALSO the Defence Reply to the Prosecution Response, fĳiled on 19 April 2005; DECIDES AS FOLLOWS.

I. Submission of the Parties

Defence Motion 1. In this Motion, the Defence teams on behalf of the Accused Alex Tamba Brima, Santigie Borbor Kanu and Brima Bazzy Kamara apply to the Trial Chamber to grant them Leave to Appeal an Oral Ruling of 5 April 2005, and further request a stay of proceedings until the Report of the Independent Counsel regarding potential contempt of Court has been issued to the Defence and until an appeal against interim measures ordered by Trial Chamber II has been dealt with. 2. The Defence states that it is unable to provide copies of the Oral Decision of the Chamber as required by the Practice Directions1 for certain Appeals before the Special Court because the Decision was oral and the Defence had not yet been provided with the transcripts of the said Decision. 3. The Defence submit that there are exceptional circumstances and that irreparable prejudice would be caused to the Accused if the leave is not granted. 4. The Defence submit that irreparable prejudice is caused since the Brima Defence team is not able to properly prepare and conduct its cross examination of Prosecution Witnesses as a result of the absence of its Investigator. They are

1 See Article 6 of the Practice Directions for Certain Appeals before the Special Court interlocutory decisions – trial chamber 501 handicapped in choosing an investigator with quality and trust-worthiness from the list provided. The Defence further submit that their cross-examination is made difffĳicult because an Investigator to the Kamara case has just recently been appointed. The presence of a new, diffferent Investigator may afffect the fairness of the proceedings. 5. The Defence further submit that the mere fact that an Investigator is subjected to an investigation is in itself an exceptional circumstance, and that the participation of an accused in an international tribunal would depend to a greater extent on the investigative capabilities of the Defence team. The Defence further states this notion also relates of the principle of equality of arms and thus afffects the rights of the accused as set out in Article 17 of the Statute.

Prosecution Response 6. The Prosecution as a preliminary matter notes that the original application for an adjournment was made by Counsel for Brima and Kamara. Counsel for Kanu did not join in that application. The Prosecution submits that neither of the two limbs of exceptional circumstances and irreparable prejudice required under Rule 73(B) has been demonstrated by the Defence. 7. The Prosecution further submits that the decision of the Brima Defence Team not to select an investigator is entirely of its own choosing and therefore they must be taken to intend the consequences that follow from that choice. “As such, the circumstances are not exceptional and no prejudice […] can arise.” 8. The Prosecution submits that the new assertion of the Defence that the quality, trustworthiness and efffĳiciency of potential replacement investigators has had an impact upon the choices available to Brima Defence Team is made without explanation or evidentiary foundation, and that no irreparable prejudice can arise in refusing leave to fĳile an interlocutory appeal on a ground not raised in the argument preceding the impugned Ruling. 9. In reaction to the Defence assertion of its inability to investigate Prosecution Witnesses both prior to and after examination in chief, the Prosecution reminds the Chamber that the Defence and the Brima defence team were already in possession of the redacted statements of the Prosecution Witness since 2003 and January 2005 respectively. 10. In relation to the Kamara Defence assertion they could not cross examine Witness TF1-023; the Prosecution submits that Counsel for Kamara had previously cross examined witnesses TF1-024 and TF1-277 without indicating any difffĳiculty due to a lack of an investigator. 502 part ii

Defence Reply 11. In response to the Prosecution assertion that the position of the Defence team with respect to the non-use of an investigator is entirely of its own making, the Defence replies that it has only a restricted choice of its investigator from the list of investigators provided by the Defence offfĳice. 12. The Defence states that its decision not to have a new investigator other than the suspended one is because the suspended investigator is far more efffĳicient than its previous investigator and reiterates the importance of an investigator in the composition of the Defence team.

II. Deliberations

13. We note that Counsel for Kanu was not a party to the original application, but has joined in the application on a later date. 14. The Chamber recalls Rule 73(B) which reads: (B) Decisions rendered on such motions are without interlocutory appeal. However, in exceptional circumstances and to avoid irreparable prejudice to a party, the Trial Chamber may give leave to appeal. Such leave should be sought within 3 days of the decision and shall not operate as a stay of proceedings unless the Trial Chamber so orders. 14. It is evident from this Rule that an interlocutory appeal is an exception before this Court. As stated by Trial Chamber I in the Prosecutor v. Sesay et al.: “As a general rule, interlocutory decisions are not appealable and consistent with a clear and unambiguous legislative intent, this rule involves a high threshold that must be met before this Chamber can exercise its discretion to grant leave to appeal. The two limbs to the test are clearly conjunctive, not disjunctive; in other words, they must both be satisfĳied.”2 15. The Defence submits the following are exceptional circumstances: (1) the absence of the original investigator, Brima Samura, (now under suspension) may afffect the fairness of these proceedings, even though a new investigator was offfered to the Defence Team; (2) the efffective participation of an Accused in an international criminal trial depends to a large extent on the investigative capabilities and capacities of

2 Prosecutor v. Sesay, Kallon and Gbao, Case No. SCSL-2004-15-PT, Decision on Prosecution’s Application for Leave to File an Interlocutory Appeal Against the Decision on the Prosecution’s Motion for Joinder, 13 February 2004, para. 10; see also Prosecutor v. Brima et al., Case No. SCSL-04- 16-PT, Kanu – Decision on Application for Leave to File and Interlocutory Appeal against Decision on Motion for Exclusion of Prosecution Witness Statements and Stay of Filing of Prosecution Statements, 4 February 2005. interlocutory decisions – trial chamber 503

the Defence team and that such an absence clearly also relates to the principle of equality of arms and thus afffects the rights as set out in Article 17 of the Statute.” 16. From this submission and other statements at trial it is factually clear that the Accused Alex Tamba Brima is not prepared to accept any alternative investigator offfered. Whilst we do not refute the need for an investigator, we do not consider non-availability of personal choices of investigators an exceptional circumstance sufffĳicient to bring about an indefĳinite stay of proceedings of a trial. 17. They further submit that the mere fact that their Investigator is subjected to any investigation is in itself an exceptional circumstance. The investigation of events in which Brima Samura was allegedly involved is the subject of a report by an Independent Counsel. Rule 77(C)(iii) provides that the investigator informs the Chamber. There is no obligation on the Independent Counsel to report to any other persons and in particular no right or obligation to inform persons who are not subject to the investigation or allegation. 18. In their oral and written submissions, Defence seek to adjourn the hearing pending the outcome of the Investigating Counsel’s report. We re-state our view that the possible contempt proceedings have no bearing on this trial. None of the accused has been the subject of investigation for alleged contempt. 19. The Defence, on the ground of irreparable prejudice, submits that proceedings against Mr. Brima “have been continued without an option to investigate Prosecution’s witnesses brought both prior to and after examination-in-chief, and thus have not been able to properly prepare and conduct cross-examination.” Again this relates to the choice of investigator. 20. There are further submissions cited above on “quality” and “trustworthiness of an efffĳicient investigator or otherwise,” but no facts are submitted to impugn the capability, trustworthiness or efffĳiciency of those offfered that leads the Trial Chamber to fĳind the persons offfered as investigators are of such a calibre that their appointment would cause irreparable prejudice to the accused. 21. We also recall the duty of the Trial Chamber in Rule 26bis of the Rules of Procedure and Evidence.

“The Trial Chamber and the Appeals Chamber shall ensure that the 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 and due regard for the protection of victims and witnesses.” 22. A stay of proceedings of the Trial “until a fĳinal decision has been taken on this issue,” (by which we assume Counsel means a hearing of an appeal) would lead 504 part ii to considerable delay and be prejudicial to the accused’s right to an expeditious trial.

FOR THESE REASONS We fĳind there are no grounds of exceptional circumstance and irreparable prejudice are made out and Leave is refused. Done at Freetown, Sierra Leone, this 15th day of June 2005. TRIAL CHAMBER II

Before: Justice Teresa Doherty, Presiding Judge Justice Richard Lussick Justice Julia Sebutinde Registrar: Robin Vincent Date: 16 June 2005 PROSECUTOR Against Alex Tamba Brima Brima Bazzy Kamara Santigie Borbor Kanu (Case No.SCSL-04-16-T)

DECISION ON JOINT DEFENCE MOTION ON ADMISSIBILITY OF EXPERT WITNESSES/EXPERT EVIDENCE AND FILING OF NOTICE PURSUANT TO RULE 94bis (B)(i) and (ii), ON RE-FILED DEFENCE REQUEST FOR DISCLOSURE, AND ON THE JOINT DEFENCE MOTION FOR EXCLUSION OF MEDICAL INFORMATION, STATISTICS AND ABSTRACTS PERTAINING TO WITNESSES TF1-081 AND TF1-188

Office of the Prosecutor: Defence Counsel for Alex Tamba Brima: Luc Côté Glenna Thompson Lesley Taylor Kojo Graham James Hodes Defence Counsel for Brima Bazzy Kamara: Mohamed Pa-Momo Fofanah Defence Counsel for Santigie Borbor Kanu: Geert-Jan Alexander Knoops Carry Knoops Abibola E. Manley-Spaine 506 part ii

TRIAL CHAMBER II (“Trial Chamber”) of the Special Court for Sierra Leone (“Special Court”), composed of Justice Teresa Doherty, presiding, Justice Richard Lussick and Justice Julia Sebutinde; SEISED of the Joint Defence Motion on Admissibility of Expert Witnesses/Expert Evidence and Filing of Notice pursuant to Rule 94bis (B)(i) and (ii) fĳiled jointly by Defence Counsel for the Accused Alex Tamba Brima, Brima Bazzy Kamara and Santigie Borbor Kanu on 7 March 2005, (“the First Motion”);1 AND of the Re-fĳiled Defence Request for Disclosure fĳiled by Defence Counsel for the Accused Alex Tamba Brima on 9 March 2005 (“the Defence Request”);2 AND of the Confĳidential Joint Defence Motion for Exclusion of Medical Information, Statistics and Abstracts Pertaining to Witness TF1-018 and Witness TF1-188, fĳiled jointly by Defence Counsel for the Accused Alex Tamba Brima, Brima Bazzy Kamara and Santigie Borbor Kanu on 14 March 2005 (“the Second Motion”);3 CONSIDERING also the Prosecution Letter to Brima Defence regarding Disclosure in relation to Witness TF1-081 fĳiled on 4 March 2005;4 the Brima Response to Prosecution’s Letter of 4 March 2005 in Response to Request for Disclosure, fĳiled by Defence Counsel for the Accused Alex Tamba Brima on 4 March 2005;5 the Prosecution Letter Regarding the Re-fĳiled Defence Request for Disclosure fĳiled on 6 April 20056 and the Prosecution Response to Joint defence Motion on Admissibility of Expert Witnesses/Evidence and Filing of Notice Pursuant to Rule 94bis (B)(i) and (ii) fĳiled on 8 March 2005 (“the Prosecution Response to the First Motion”);7 and the oral arguments of the parties heard by consent, in open court on 16 March 2005;8 MINDFUL of the provisions of Rule 66, 68, 70 and 94bis of the Rules of Procedure and Evidence of the Special Court (“the Rules”); HEREBY DECIDES the First Motion, Second Motion and the Defence Request.

I. Introduction

1. Witness TF1-081 and Witness-188 are both medical doctors who are set to testify some time in the near future as protected witnesses on behalf of the Prosecution

1 Document No. SCSL-2004-16-PT-172. 2 Document No. SCSL-2004-16-PT-178. 3 Document No. SCSL-2004-16-PT-189. 4 Document No. SCSL-2004-16-PT-170. 5 Document No. SCSL-2004-16-PT-171. 6 Document No. SCSL-2004-16-PT-206. 7 Document No. SCSL-2004-16-PT-177. 8 Transcript of 16 March 2005. interlocutory decisions – trial chamber 507 in the case of the Prosecutor v. Alex Tamba Brima et al.9 The Prosecution in the said case has disclosed a number of pre-trial statements with regard to each of the said witnesses to the Defence pursuant to Rule 66 of the Rules of Procedure and Evidence of the Special Court. The Defence takes exception to the fact that although the Prosecution has indicated that it does not intend to call these as “experts” but rather as witnesses of fact, their pre-trial statements contain information, statistics and abstracts that amounts to “expert opinion” and inadmissible hearsay. The Defence is of the view that if these witnesses are permitted to testify on the basis of these statements in their current form, it would prejudice the Defence case as they would not be able to efffectively cross-examine these witnesses upon such evidence. Accordingly, the Defence has fĳiled two Motions and a request seeking for appropriate remedies as follows.

II. Submission of the Parties

The First and Second Motion and Re-Filed Request 2. In what it has entitled “The Joint Defence Motion on Admissibility of Expert Witness/Expert Evidence and Filing of Notice Pursuant to Rule 94bis (B)(i) and (ii)” (the fĳirst Motion), the Defence for each of the three Accused has notifĳied the Trial Chamber of its intention to cross-examine witnesses TF1-081 and TF1-188 as “expert witnesses” pursuant to Rule 94bis (B)(i) and (ii) of the Rules. The Defence further challenges the status of these witnesses as well as the admissibility of their intended evidence. 3. In its Re-Filed Request for Disclosure, the Defence for the Accused Alex Tamba Brima requests the Prosecution to disclose pursuant to Rule 66(A)(iii) of the Rules, the following information that appears to have been used in the preparation of the pre-trial statement of Witness TF1-018, namely, (a) original reports of a project the witness worked on; (b) the reason or reasons for the project coming to an end and (c) details of all funds expended with specifĳic regard to this particular project. 4. In its Second Motion the Defence for each of the three Accused submit that although the Prosecution has indicated that Witnesses TF1-081 and TF1-188 will each testify as a witness of fact and not as an “expert witness,” the Defence principally objects to the witnesses giving evidence based upon their disclosed pre-trial statements in their current format on the grounds that: (a) The witness statements “contain several opinions and conclusions as to medical data, information and statistics” that lack any scientifĳic

9 Case No. SCSL-2004-16-T. 508 part ii

methodology or foundation and are not based on the witness’ own knowledge or experience but rather on inadmissible hearsay. (b) If the witnesses are permitted to testify on the basis of the impugned statements “a potential conflict of dual capacity” will arise whereby being witnesses of fact, Witnesses TF1-081 and TF1-188 in fact give expert evidence thereby “trespassing on the province of the Trial Chamber.” (The Defence cites the ICTY case of the Prosecutor v. Kordic and Cerkez10); (c) International criminal law and jurisprudence recognises only two categories of witnesses, namely, “witnesses of fact” and “expert witnesses.” If permitted to testify on the basis of the impugned statements, Witnesses TF1-081 and TF1-188 would in fact inappropriately do so as a “hybrid” of the two internationally accepted categories. 5. The Defence seeks to exclude from the evidence-in-chief of Witnesses TF1-081 and TF1-188 the data, information and abstracts contained or referred to in their pre-trial statements, in particular page 6316, 6317-6321 with respect to Witness TF1-081 and pages 6343-6344 with respect to Witness TF1-188, respectively.

Prosecution Response 6. The Prosecution states that notwithstanding the fact that TF1-081 and TF1-188 are qualifĳied medical doctors, it never intended to call them as expert witnesses as they are expected to testify on factual occurrences they have observed as eyewitnesses, and as such the evidence of TF1-081 is not opinion evidence. 7. On the request by the Defence Counsel of the Accused Alex Tamba Brima, the Prosecution responds by letter and notes that: (1) This is not a motion formulated in accordance with Rule 73 and; (2) All relevant materials within the custody or control of the Offfĳice of the Prosecutor relating to Witnesses TF1-081 had been disclosed and; (3) Any records relating to the FAWE project, [a medical project] were considered privileged as doctor/client confĳidentiality; (4) The Defence Counsel for Alex Tamba Brima has not indicated under which provision he requests disclosure in the original application or the reply. 8. The Reply restates the application and does not refute the facts stated in the Prosecution responses nor address the issue of confĳidentiality.

10 The Prosecutor v. Dario Kordic and Mario Cerkez, Case No. IT-95-14/2-T, Decision on the Prosecution Application to Admit the Tulica Report and Dossier into Evidence, 29 July 1999. interlocutory decisions – trial chamber 509

III. Deliberations

On the Characterization of Expert Witnesses and the second Motion 9. The Defence submission, whilst making a lucid and comprehensive statement on the possible dichotomy of a witness, with professional or expert knowledge giving evidence as a lay person and “the grey area” where his professional assessment may encroach upon personal observation, loses sight of a fundamental issue. 10. The Prosecution have not yet called the witnesses to attest. They have not commenced to adduce their evidence. Until the witness actually gives sworn evidence, it is not possible to say if his evidence is expert opinion, statements of fact, or a mixture of both. Similarly, the Trial Chamber cannot decide on the admissibility of a document until the relevant evidence is heard and the document is tendered. 11. In the present case since the proposed witnesses have not yet been called, sworn and given evidence, we are of the opinion that to rule on the admissibility of parts of a statement made to the Prosecution and disclosed to the Defence is premature and speculative. 12. In this regard, we further refer to our decision of even date in: “Decision on Joint Defence Motion Pertaining to Objections to the Nature of the Testimony-in-Chief of Witness TF1-150.” 13. For the foregoing reasons, we consider the motion premature and dismiss it.

On the Disclosure Request by the Defence for Alex Tamba Brima 12. The Defence Counsel for the Accused Brima requested the disclosure of several documents relating to the evidence of Prosecution Witness TF1-081. These are:– a. Original medical reports of those treated by FAWE. b. The reason or reasons for the project coming to an end in March 2000. c. Details of all funds expended with specifĳic regard to this particular project. 13. The disclosure obligations on the Prosecution are provided in Rule 66, (Disclosure of materials by the Prosecutor) and Rule 68 (Disclosure of Exculpa- tory Evidence). Rule 66(A)(iii) is dependant upon the material, etc, being “in his custody or control which are intended for use by the Prosecutor as evidence …” 14. The Chamber recalls Rule 70(B) of the Rules which defĳines matters not subject to disclosure: 510 part ii

(B) “If the Prosecutor is in possession of information which has been provided to him on a confĳidential basis and which has been used solely for the purpose of generating new evidence, that initial information and its origin shall not be disclosed by the Prosecutor without the consent of the person or entity providing the initial information and shall in any event not be given in evidence without prior disclosure to the accused. 15. We note that the Defence has not disputed the Prosecution submission that it cannot disclose the requested information as it falls into the privilege of confĳi- dential communications between doctors and their clients. There is no evidence that the consent of the person or entity providing the initial information has been given. We therefore, conclude that the requested material falls under Rule 70(B) of the Rules, and that the defence is not entitled to receive the requested information. 16. We accept that Prosecution does not have any other documents and therefore the Trial Chamber cannot make any order for disclosure. 17. For the foregoing reasons, the Chamber fĳinds that the request of the Defence for disclosure of documents cannot be granted.

On the Notice of the Defence pursuant to Rule 94bis 18. The Defence gave notice in the above “motion” of its “intention to cross- examine witnesses TF1-081 and TF1-188, should the Prosecution be seeking to call these witnesses as expert witnesses, pursuant to Rule 94bis (B)(i) and (ii).” Although no relief or ruling is sought from the Trial Chamber, in reply the Prosecution submits: (1) there is no motion before the Trial Chamber and (2) the witnesses are not being called as experts pursuant to Rule 94bis (B)(i) and (ii). 19. We agree this is not a motion within the provisions of Rule 73 – it merely “fĳiles notice” and as such does not require a ruling under Rule 94bis. 20. We further refer to the ruling on the second Motion and the submissions that these witnesses are not experts. 21. For the foregoing reasons the notice is redundant.

FOR THE ABOVE REASONS, THE TRIAL CHAMBER Dismisses the Motions and the Request of the Accused Alex Tamba Brima. Done at Freetown this 16th day of June 2005. TRIAL CHAMBER II

DECISION ON CONFIDENTIAL JOINT DEFENCE REQUEST TO INSPECT LOCUS IN QUO CONCERNING EVIDENCE OF WITNESS TF1-024

TRIAL CHAMBER II (“Trial Chamber”) of the Special Court for Sierra Leone (“Special Court”), composed of Justice Teresa Doherty, presiding, Justice Richard Lussick and Justice Julia Sebutinde; SEISED of the “Confĳidential Joint Defence Request to InspectLocus in Quo Concerning the Evidence of Witness TF1-024” fĳiled on 14 March 2005 on behalf of the Accused Brima, Kamara and Kanu (“Motion”); NOTING the Prosecution Answer to the Motion, fĳiled on 4 April 2005 (“Prosecution Answer”); NOTING also the Joint Defence Reply to the Prosecution Answer to the Motion, fĳiled on 8 April 2005 (“Defence Reply”); DECIDES AS FOLLOWS based solely on the written submissions of the parties pursuant to Rule 73(A) of the Rules of Procedure and Evidence of the Special Court (“Rules”).

I. Submissions of the Parties

Defence Motion 15. The Defence requests the Trial Chamber to inspect, in the presence of both Prosecution and Defence, the premises of the State House in Freetown to which Witness TF1-024 referred during his testimony on 7 and 8 March 2005. The Defence challenges the accuracy of the Witness’s description of the site. It submits that the Trial Chamber has the power to conduct the requested investigation under Rule 54 of the Rules.

Prosecution Response 16. The Prosecution submits that the Motion is without merit. It argues that the Defence has had the opportunity during cross-examination to challenge the accuracy of the description given by Witness TF1-024 of the kitchen of the State House and the area outside the window. It submits that the proper channel for a further challenge of the testimony of this witness by the Defence should be through its own case. It argues that the Trial Chamber has already examined Witness TF1-024, and that in the light of Rule 85 and the international jurisprudence on this Rule no further examination of the witness should take place.

Defence Reply 17. The Defence argues that its request for an inspection of the said location cannot be denied on the basis of Rule 85 since it relies solely on Rule 54. It contends that the content of cross-examination as such is not an argument for denial of a interlocutory decisions – trial chamber 513 request to inspect a locus in quo in the event that the particular locus in quo forms an essential part of the written witness statement on which the Prosecution relied during examination in chief of Witness TF1-024. It submits that the inspection would be essential for the ascertainment of the truth. The Defence emphasizes that it does not seek any further cross-examination of Witness TF1-024. It merely seeks an inspection of the locus in quo by the Trial Chamber in the presence of both Prosecution and Defence Counsel.

II. Deliberations

18. As a preliminary matter, we note once more that this motion was fĳiled confĳi- dentially by the Defence. As stated in a previous decision, we urge and caution the Parties to fĳile confĳidential documents only where cogent reasons are offfered.1 In the present case, no valid reasons for such confĳidentiality were provided and therefore this decision will be made public. 19. We note that the Defence has requested a site visit after hearing the evidence of the fĳirst prosecution witness. Although the Defence in cross-examination challenged some aspects of the witness’s description of the kitchen of the State House and the area outside the kitchen, there is not – at least at present – any evidence which conflicts with the witness’s testimony. 20. We agree with recent ICTR decisions that the need for a site visit has to be assessed in view of the particular circumstances of each trial.2 The present trial is still at an early stage. It may well be that as more evidence is received the need for a site inspection will be made redundant. 21. As stated in the cited ICTR decisions: [I]n view of the logistics and costs involved, a decision to carry out a site visit should preferably be made when the visit will be instrumental in the discovery of the truth and determination of the matter before the Chamber.” 22. We would not expect the logistics and costs of a site visit to be prohibitive in the present case. However, after considering the relevant circumstances in this case, we fĳind that a site visit would not be instrumental in the discovering the truth or in determining the case, at least at this stage of the trial.

1 The Prosecutor v. Brima et al., Case No. SCSL-2004-16-T, Decision on the Confĳidential Joint Defence Application for Withdrawal by Counsel for Brima and Kamara and on the Request for Further Representation by Counsel for Kanu, 20 May 2005, para. 22. 2 The Prosecutor v. Simba, Case No. ICTR-01-76-T, Decision on the Defence Request for Site Visits in Rwanda, 31 January 2005, para. 2; The Prosecutor v. Bagosora et al., Case ICTR-98-41-T, Decision on Prosecutor’s Motion for Site Visits in the Republic of Rwanda, para. 4. 514 part ii

23. However, we do not exclude that a site visit may be feasible at a later stage. The Defence is at liberty to renew its request. FOR THE ABOVE REASONS, THE TRIAL CHAMBER DENIES the Motion. Done at Freetown, Sierra Leone, this 16th day of June 2005. TRIAL CHAMBER II

Before: Justice Teresa Doherty, Presiding Judge Justice Richard Lussick Justice Julia Sebutinde Registrar: Robin Vincent Date: 30 June 2005 PROSECUTOR Against Alex Tamba Brima Brima Bazzy Kamara Santigie Borbor Kanu (Case No.SCSL-04-16-T)

DECISION ON CONFIDENTIAL DEFENCE REQUEST FOR DISCLOSURE OF INDEPENDENT INVESTIGATOR’S REPORT ON CONTEMPT OF COURT PROCEEDINGS AND REQUEST FOR STAY OF PROCEEDINGS

TRIAL CHAMBER II (“the Trial Chamber”) of the Special Court for Sierra Leone (“Special Court”), composed of Justice Teresa Doherty, presiding, Justice Richard Lussick and Justice Julia Sebutinde; SEISED of the Confĳidential Joint Defence Request for Disclosure of The Independent Investigator’s Report on Contempt of Court Proceedings and Request for Stay of Proceedings fĳiled on 4 April 2005 on behalf of the Accused Alex Tamba Brima, Brima Bazzy Kamara and Santigie Borbor Kanu (“the Motion”);1 CONSIDERING the Prosecution Response to the Motion (“the Response”), fĳiled on 14 April 2005;2 CONSIDERING also the Confĳidential Joint Defence Reply to the Response, fĳiled on 19 April 2005 on behalf of the Accused Alex Tamba Brima, Brima Bazzy Kamara and Santigie Borbor Kanu;3 NOTING the Report of the Independent Counsel Mr. Louis Tumwesige, submitted to the Trial Chamber on 16 March 2005 pursuant to the provisions of Rule 77(C)(iii) of the Rules of Procedure and Evidence (“the Rules”); NOTING further that under Rule 77(C)(iii) of the Rules the Report of the Independent Counsel is intended to assist the Trial Chamber in its deliberations and that the Trial Chamber is under no obligation to disclose the contents of the said Report or its deliberations thereon; CONSIDERING that the Trial Chamber in its Decision on The Report of The Independent Counsel Pursuant to Rules 77(C)(iii) and 77(D) of the Rules delivered and published on 29 April 20054 did not institute contempt proceedings against any of the Accused Alex Tamba Brima, Brima Bazzy Kamara and Santigie Borbor Kanu; NOTING the Order Assigning Cases To A Trial Chamber issued by the President of the Special Court on 2 May 20055 in which Justice Emmanuel Ayoola assigned the conduct of the Contempt of Court Proceedings to Trial Chamber I or a single Judge thereof; NOTING that Counsel for the Accused Alex Tamba Brima, Brima Bazzy Kamara and Santigie Borbor Kanu do not in their Request for Disclosure of the Report of

1 Document No. SCSL-2004-16-T-200. 2 Document No. SCSL-2004-16-T-220. 3 Document No. SCSL-2004-16-T-226. 4 Prosecutor v. Alex Tamba Brima et al., Decision on the Report of the Independent Counsel Pursuant to Rules 77(C)(iii) and 77(D) of the Rules of Procedure and Evidence, 29 April 2005, Document No. SCSL-2004-16-T-237. 5 The Prosecutor v. Brima Samura: Case No. SCSL-2005-1 and the Prosecutor v. Margaret Fomba Brima, Neneh Binta Bah Jalloh, Anifa Kamara and Ester Kamara: Case No. SCSL-2005-2, Order Assigning Cases To A Trial Chamber of 2 May 2005. interlocutory decisions – trial chamber 517

The Independent Counsel claim to be acting on behalf of the alleged contemnors in the Contempt of Court Proceedings; CONSIDERING that the Defence for the Accused Alex Tamba Brima, Brima Bazzy Kamara and Santigie Borbor Kanu has not persuasively argued how the non-disclosure by the Trial Chamber of the Report of The Independent Counsel is likely to prejudice the Defence case or the conduct of a fair trial in the case of the Prosecutor v. Alex Tamba Brima et al.; CONSIDERING further that for the same reasons the Defence for the Accused Alex Tamba Brima, Brima Bazzy Kamara and Santigie Borbor Kanu has not persuasively argued how a stay of proceedings pending the disclosure of the Report of the Independent Counsel is an appropriate relief in the circumstances; HEREBY dismisses the Confĳidential Joint Defence Request for Disclosure of The Independent Investigator’s Report on Contempt of Court Proceedings and Request for Stay of Proceedings. Done at Freetown, Sierra Leone, this 30th day of June 2005.

TRIAL CHAMBER II

Before: Justice Teresa Doherty, Presiding Judge Justice Richard Lussick Justice Julia Sebutinde Registrar: Robin Vincent Date: 28 July 2005 PROSECUTOR Against Alex Tamba Brima Brima Bazzy Kamara Santigie Borbor Kanu (Case No.SCSL-04-16-T)

DECISION ON JOINT DEFENCE MOTION FOR GENERAL ORDERS PURSUANT TO RULE 54

Office of the Prosecutor: Defence Counsel for Alex Tamba Brima: Luc Côté Kojo Graham Lesley Taylor Glenna Thompson James Hodes Defence Counsel for Brima Bazzy Kamara: Andrew Daniels Mohamed Pa-Momo Fofanah Defence Counsel for Santigie Borbor Kanu: Geert-Jan Alexander Knoops Carry Knoops Abibola E. Manly-Spain 520 part ii

TRIAL CHAMBER II (“Trial Chamber”) of the Special Court for Sierra Leone (“Special Court”), composed of Justice Teresa Doherty, presiding Judge, Justice Richard Lussick and Justice Julia Sebutinde; SEISED of the Joint Defence Motion for General Orders Pursuant to Rule 54 fĳiled on 5 May 2005 on behalf of the Accused Brima, Kamara and Kanu (“Motion”); CONSIDERING the Prosecution Response to the Joint Defence Motion for General Orders Pursuant to Rule 54 fĳiled on 12 May 2005; CONSIDERING the Joint Defence Reply to Prosecution Response to Joint Defence Motion for General Orders Pursuant to Rule 54 fĳiled on 18 May 2005; CONSIDERING ALSO the oral submissions of Counsel made in open Court on 26 April 2005; DECIDES AS FOLLOWS.

I. Introduction

1. This Motion has been fĳiled as a consequence of certain allegations made in Court by the Defence on 26 April 2005. 2. The allegations raised serious claims that a potential witness for the Defence had been interfered with in a way likely to bring the administration of justice into disrepute, that the right of the Accused to a fair trial had been violated, and that other potential witnesses had been discouraged from coming forward. 3. The allegations were all the more serious because it was claimed that the persons responsible for the transgressions were none other than agents of the Government of Sierra Leone and personnel of the Special Court. 4. At the sittings of the Trial Chamber on 26 April 2005, Mr. Metzger, counsel for Brima, informed the Court that the Accused were “very concerned about events which have occurred over the weekend.” He recounted that on Saturday 23 April 2005 someone whose name he was not prepared to give in open court and who had attended the premises of the Special Court and may have been one of a number of persons who had visited the detainees, was arrested by military police at 5.00 in the morning and taken to Wilberforce Barracks, where he was detained for some fĳive hours. The premises of this person were also searched. Mr. Metzger went on to state that the Defence had information that the military police went to this person’s address after having been informed by State House that they should do so. It appeared that the military police were looking for ammunition and military uniforms. interlocutory decisions – trial chamber 521

5. Mr. Metzger then related another incident in which the premises of the clerk to Mr. Manly-Spaine, co-counsel for Kanu, were searched by the military police. He added that the Defence had been unable to contact Mr. Manly-Spaine and were very concerned that he was not in Court that morning. Mr. Metzger told the Court that the Accused fear that they are not receiving a fair trial and that “there appear to be outside agencies that are involved – and I use that term advisedly – with the collection of evidence for the Defence in this case.”1 6. Mr. Metzger also told the Court that on 15 March last year, Defence Counsel went to Makeni Barracks to interview military personnel, resulting in a number of people coming forward to give witness statements, but that “someone, somewhere, or a body of people, for whatever reasons, are trying to rattle persons who may want to offfer themselves as witnesses in this case.”2 7. Based on the matters put to the Court, the Defence asked that the issue be stood down to enable it to fĳile a formal Motion pursuant to Rule 54.

II. Submissions of the Parties

The Motion 8. The Defence makes reference to the matters raised by it in Court on April 26, 2005. 9. The Defence also refer to their “reasonable suspicion and belief of a nexus between the visit of the potential witness to the Special Court and his ensuing arrest.” (We note from the redacted statement of the potential witness annexed to the Motion (Annex A) that he claims to have visited the Special Court “sometime in early April, 2005.”) 10. The Defence makes mention of informing the Trial Chamber of a visit by the Defence team to barracks at Makeni “sometime in March 2005” (this is an error; the date was actually 15 March 20043) to ascertain if there might be potential witnesses among military personnel. Flowing from that visit, according to the Defence, about 5 persons, a combination of serving and ex-soldiers, visited the Special Court to see the detainees and discuss their willingness to testify on behalf of the Defence. (It is clear from Annex C to the Motion that this visit took place on 6 April 2005). 11. The Defence submits that the events involving the arrest and search of the premises of a potential Defence witness amount to interference with that

1 See transcript 26 April 2005, pages 2, 3, 4. 2 Ibid., pages 5, 6. 3 Ibid., page 5, line 25. 522 part ii potential Defence witness and are therefore likely to bring the administration of justice into disrepute, necessitating the intervention of the Trial Chamber to protect such potential witnesses. Furthermore, the Defence argues that this interference, which can be attributable to the local authorities, amounts to an invasion of the right to a fair trial and of Defence rights in general pursuant to Article 17 of the Statute of the Special Court for Sierra Leone (“the Statute”). 12. The Defence argues that the Trial Chamber has the power to issue binding orders on the State of Sierra Leone to ensure a cessation of the interference with potential Defence witnesses. Further, it submits that the action of the Military Police in conducting searches at the premises of the clerk to Defence Counsel amounts to a breach of Article 14 of the Agreement Between the United Nations and the Government of Sierra Leone on the Establishment of a Special Court for Sierra Leone (“the Special Court Agreement”) (Article 14 provides certain protections for Defence counsel). The Defence goes further to submit that this action can be attributed to the national authorities of Sierra Leone themselves. 13. The Defence further submits that the hostile conduct of the Special Court security personnel towards the visit of the serving and ex-soldiers had an adverse efffect on their willingness to come forward as potential Defence witnesses. 14. The Defence also submits that under Article 17 of the Special Court Agreement, the Government of Sierra Leone is obliged to cooperate with all organs of the Special Court ostensibly to ensure a fair and expeditious trial for all accused persons and to comply without delay with any requests for assistance by the Special Court. 15. The Motion seeks the following relief: a. An order that the Registrar is to ensure that no witnesses, especially potential Defence witnesses, are interfered with or intimidated by security offfĳicers of the Special Court or by operatives and personnel of the Sierra Leone Military Police or security services, or by any other State functionary. b. An order that security personnel of the Special Court provide the Court, Defence and Prosecution with information as to the use made of biographic data collected from visitors, “particularly in the light of developments which have created reasonable suspicion that biographic information collected by the Special Court security personnel are chan- nelled to State security functionaries for purposes that appear not be (sic) in the interests of the respective Defence teams.” c. An order for interim protective measures for potential Defence witnesses. d. An order to restrain State security services and their functionaries from interfering with potential Defence witnesses. interlocutory decisions – trial chamber 523

e. An order directing the Registry to seek the cooperation of the State of Sierra Leone pursuant to Article 17 of the Special Court Agreement in complying with the foregoing orders sought in this Motion. f. Any other relief the Trial Chamber may deem fĳit and proper in the circumstances.

Prosecution Response 16. In its Response, the Prosecution submits that there is an insufffĳicient factual basis to support the allegations made by the Defence, that the relief sought is inappropriate, and that the Motion should be dismissed in its entirety. 17. The Prosecution further submits: a. That the soldiers and ex-soldiers who visited the Special Court were denied access only because they had been asked to fĳill out an application to visit the detention facility and wait for approval. This procedure does not amount to an outright denial of access, nor does it amount to interference with the rights of the Accused to a fair trial. b. That the reasons why records are kept of the identity of visitors to persons held in detention are so obvious as to need no elaboration. c. With regard to the Defence allegation of the existence of a nexus between the visit of a potential witness to the Special Court and the subsequent searching of his home and arrest, that the only evidence of any connection is a statement by the potential witness that the Provost Marshall asked the question: “I have been informed by State House that you have been visiting the Special Court premises, what is your purpose of going there?” It is to be noted that the alleged search of the home of the clerk to Defence counsel was conducted on suspicion that arms and ammunition were stored on those premises. Further, both searches were virtually simultaneous. d. That there is no evidence that would enable the Trial Chamber to conclude that the two searches and the arrest of the potential Defence witness were connected to the visit of that potential witness to the Special Court. Accordingly, there is no factual nexus between the incidents asserted and alleged interference by “Sierra Leone state security services and/or their operatives” in the preparation of the Defence for trial. No breach of the Article 17 rights of the Accused has been established. e. That no breach by the Government of Sierra Leone of Articles 14 or 17 of the Special Court Agreement can be substantiated; “reasonable suspicion and belief of a nexus,” the belief of the Accused that there has been State interference, or a “high level of coincidence” are not sufffĳicient. f. That the test of “as may be necessary” in Rule 54 has not been made out because of the lack of factual foundation in the Motion. 524 part ii

g. That, as regards the fĳirst order sought, the Registrar cannot be asked to control the behaviour of the Sierra Leone Military Police or other State functionaries. Further, the fĳirst and fourth orders sought ignore the sovereignty of the State of Sierra Leone. h. That the fĳifth order sought, that the Registrar be directed to seek the cooperation of the Government of Sierra Leone in complying with the other orders, borders on the offfensive. i. With respect to the third order sought, that any application for protective measures should be made pursuant to Rule 75 and upon appropriate evidence. The court should not be asked to order protective measures for witnesses who have not been identifĳied.

Defence Reply 18. In its Reply to the Prosecution Response, the Defence submits as follows: a. That they are not seeking special treatment for their potential witnesses. Even though the process of approvals may not amount to a denial of access and visitation rights, delays in approving requests for visits continue to create an unwillingness on the part of potential Defence witnesses to revisit the Special Court. Also, such delays may amount to a denial of visitation rights as well as an interference with the rights of the accused to a fair trial insofar as Defence Counsel need information from some of these potential witnesses for purposes of preparation and cross-examination. b. That the Military Police and the Provost Marshall are agents of the State of Sierra Leone, and that under international law, the State may be held responsible for the direct and indirect actions of its agents. c. That the question asked by the Provost Marshall establishes an additional fact or reason for the arrest of the potential witness, and that is to inquire about his visits to the Special Court on the instructions of State House. d. That they are not objecting to the collection of biographic information from potential witnesses, but rather they are requesting the Trial Chamber to make the necessary orders to prevent the use of such information in a wrongful manner. e. That what they are seeking from the Registrar is for him to solicit the cooperation of the State of Sierra Leone to ensure that its agents do not interfere with potential witnesses or witnesses for the Defence. f. That Rule 75 was not designed for the protection of potential witnesses, hence the need for the Chamber to make an order under Rule 54 to protect them. interlocutory decisions – trial chamber 525

III. Deliberations

19. Rule 54 states: “At the request of either party or of its own motion, a Judge or a Trial Chamber may issue such orders, summonses, subpoenas, warrants and transfer orders as may be necessary for the purposes of an investigation or for the preparation or conduct of the trial.” 20. The Rule is a general rule in unambiguous language. Clearly, the test for whether the Trial Chamber ought to issue the orders sought by the Defence, is whether to do so is necessary (not simply useful or helpful) for the purposes of an investigation or for the preparation or conduct of the trial.4 21. The relief sought by the Motion is based on events alleged to have occurred on two dates, 6 April, 2005, when a group of 5 soldiers and ex-soldiers visited the Special Court, and 23 April 2005, when Military Police searched the houses of a potential witness and a clerk to one of the Defence Counsel. From what Defence Counsel told the Court on 26 April 2005, it is probable that the potential witness involved in the latter incident was one of the group of 5 involved in the earlier incident.5

Incident on 6 April, 2005 22. According to the Defence, the group of 5 soldiers and ex-soldiers were denied access to the detainees and have since refused to visit again because of the way they were treated by Special Court security. 23. Considering all the facts available, we were unable to fĳind anything to justify the claim that they were refused access to the detainees. In fact, they were permitted to visit the Special Court,6 but when they asked to see the detainees they were asked to fĳill out an application and wait for approval.7 That requirement is not unreasonable and is well within the powers of the Chief of Detention. In fact, it would be unreasonable for any visitor to expect to be shown a red carpet straight through to the Detention Facility without having to undergo any formalities. 24. Under Rule 41 of the Rules of Detention, the Chief of Detention, in consultation with the Registrar, has the power to impose such restrictions and supervision

4 See Prosecutor v. Delalic et al., Case No. No. IT-96-21-T, Decision of the President on the Prosecutor’s Motion for the Production of Notes Exchanged between Zejnil Delalic and Zdravko Mucic, 11 November 1996; see also Jones & Powles, International Criminal Practice 3rd. Edition, at para. 8.4.3. 5 See transcript 26 April 2005, page 3 lines 16–19. 6 See statement of Claire Carlton-Hanciles, Annex C, and copy of email from Acting Chief of Security, Annex D to Motion. 7 See copy of email from Acting Chief of Security, Annex D to Motion. 526 part ii on visits to detainees as he may deem necessary in the interests of the administration of justice or the security and good order of the Detention Facility. All visitors are obliged to comply with the separate requirements of the visiting regime of the Detention Facility, which may include personal searches, and any person who refuses to comply with such requirements shall be refused access. 25. One such requirement is the completion of a Visitors Declaration and Application Form, wherein the visitor provides personal information such as his or her name, address, date and place of birth, the name of the Detainee to be visited, his or her relationship to the Detainee, as well as proof of identity and a declaration as to criminal antecedents. By signing the Form, the visitor authorizes the Special Court to check the information given by the visitor. The visitor also certi- fĳies that all information is true and that any omission or false information will result in the immediate denial of the visiting application. 26. The Defence has expressed a “reasonable suspicion” that such information collected from visitors is sent to State security functionaries for purposes contrary to the interests of the Defence. This suspicion is apparently based on the allegation by the potential witness in his statement (Annex A) that, after the search by the Military Police on 23 April 2005, he was asked by the Provost Marshall: “I have been informed by State House that you have been visiting the Special Court premises, what is your purpose for going there?” We do not fĳind that such a suspicion is reasonable, based solely as it is on that allegation. If what the potential witness says is true, there are many possibilities as to how State House could have known of his visit to the Special Court. It is not logical to conclude that the information could only have come from the Special Court security personnel. 27. In any event, the 5 visitors decided not to follow up their application and were content to speak to the detainees by phone, which they were allowed to do.8 28. The Defence claims that the Special Court security personnel were hostile to the visitors, but that is not borne out by the information available. There is no evidence that a threat or any other kind of intimidation was directed towards the visitors. Going by the following passage from the statement of Claire Carlton- Hanciles, it seems that the visitors were dissatisfĳied merely because the security personnel appeared to be curious about them, which of course is not unusual for security personnel. “... they informed me that they were content to speak to the Detainees on the phone and not have any thing done by me because they were now uncomfortable with the curi- osity that their presence had gathered which was visible from the faces of the Special Court Security.”

8 See statement of Claire Carlton-Hanciles, Annex C to Motion. interlocutory decisions – trial chamber 527

29. The visitors may not have liked the formalities with which they had to comply, but there is no support for the Defence submission that the rights of the Accused to a fair trial were interfered with. 30. Further, the given facts do not entitle us to fĳind that any potential Defence witness was interfered with or intimidated, or that any security offfĳicer of the Special Court misused information given by the visitors or exceeded his or her authority in any way. 31. We note that the Defence did not avail itself of the complaints procedure provided by the Rules of Detention. Under Rule 59, each Detainee or his Counsel may make a complaint to the Chief of Detention or his representative at any time. If not satisfĳied with the response, the Detainee has the right to make a written complaint, without censorship, to the Registrar, who is obliged to deal with the complaint promptly and to reply without undue delay.

Incidents on 23 April 2005 32. In a chronological sense, the latter incidents cannot be said to have been a consequence of the earlier incident. As has already been pointed out, there is a considerable gap in time between the visit of the potential Defence witness to the Special Court (“early April 2005”) and the searches by the Military Police (23 April 2005). 33. According to the statement of the potential witness (Annex A), the Provost Marshall said to him: “I have been informed by State House that you may have been visiting the Special Court premises, what is your purpose of going there?” and the potential witness replied (untruthfully): “I have never visited the Special Court premises and besides I have nothing to do.” That one question asked by the Provost Marshall is the slender thread which, the Defence argues, connects the searches by the Military Police with the potential witness’s earlier visit to the Special Court. There were no further questions by the Military Police along those lines. No mention was made by the Military Police about the potential witness giving evidence in Court, nor was anything said to discourage him from doing so. There is no evidence that the Military Police even knew that the potential witness was in fact a potential witness for the Defence. 34. The reason given by the Military Police for the search, that is, that they were searching for uniforms and military items, is quite consistent with the reason they gave to the law clerk for searching his premises. According to the potential witness’s statement (Annex A), the Provost Marshall told him he was being closely watched because he was once a soldier. Having found nothing, the Provost Marshall, according to the potential witness, told him that he was going to get back to the informant to tell him that what was alleged against the potential witness was not true. There is nothing to say that the Military Police had any ulterior 528 part ii motive for conducting the search. In fact, they carried out an almost simultaneous search at the home of the law clerk and gave a similar reason for the search (i.e. searching for arms and ammunition). 35. The situation at face value was that the Military Police had received information regarding the location of arms, ammunition, uniforms and other military items and were acting on that information to conduct searches. No credible arguments have been put forward to cause us to look behind that situation. The alleged factual nexus between the incidents is not sufffĳicient to justify the inferences which the Defence urges us to draw. There is no inescapable conclusion that the potential witness’s visit to the Special Court had led to attempts by the Military Police to intimidate him into not giving evidence for the Defence. Such a conclusion is, in fact, highly speculative. 36. As regards the search of the house of the clerk to Mr. Manly-Spain of Counsel, the Military Police explained to the clerk that the purpose of their search was for arms and ammunition. When none were found the matter apparently ended there. No threats were made, nor was any reference made to the trial, nor to his employer, nor was any approach made to Counsel himself. There is certainly no evidence at all that the Military Police were attempting to interfere with Counsel in the free and independent exercise of his functions in relation to the trial. 37. When the subject allegations were fĳirst raised in Court by the Defence on 26 April 2005, we indicated that we were not convinced that such allegations had any connection to the case we were hearing. 38. The Presiding Judge asked Mr. Metzger, Counsel for the Accused Brima, to clarify two matters: fĳirstly, whether he had any knowledge that the actions of the military police were related to the trial and secondly, in what way did the Accused feel that they were not having a fair trial? 39. In answer to the Presiding Judge’s second question, Mr. Metzger replied that the Accused believed that in amassing evidence on their behalf “there is interference, and interference from the State, which I accept at this point in time is really in terms of a general allegation based on the rather serious circumstances that we have sought to put before you.” 40. As to the fĳirst matter raised by the Presiding Judge, Mr. Metzger stated that: “We cannot say clearly for certain that these matters are connected. But the level of coincidence in our collective experience is so high as to raise more than mere suspicion that someone, somewhere or a body of people, for whatever reasons, are trying to rattle persons who may want to offfer themselves as witnesses in this case.”9

9 See transcript 26 April 2005 pages 5 and 6. interlocutory decisions – trial chamber 529

41. Justice Sebutinde endeavoured to obtain further clarifĳication from Mr. Harris, Counsel for the Accused Kamara: JUDGE SEBUTINDE: Mr. Harris, I’ve listened to both Defence counsel carefully, and I’ve tried to see if there is a nexus between the events that Mr. Metzger described having transpired yesterday and the day before and the proceedings and conduct of this trial. I still haven’t seen it, and I’m hoping that between yourselves you will help this Trial Chamber to establish such a nexus, if indeed there is one.10 Mr. Harris replied as follows: MR. HARRIS: […]The potential witness who, in fact, has made a statement to us was a soldier, no longer soldier some time now. He was approached to make a statement. He visited the facility. Thereafter… JUDGE SEBUTINDE: What facility? MR. HARRIS: He visited the Special Court in that he went to the prison to see and intended to see the detainees or defendants in the case. Thereafter, he was visited by the Military Police at 5.00 a.m. in the morning. It beggars belief that there is no nexus between his presence here and our contact with them and their visit. It is right to say that the substance of his statement amounts to, and I only refer to one part of it, there was reference to him and his contact with the defendants and the reasons why that was necessary in his case. As I understand it, he declined to give any information as to the reasons why. But his detention of up to fĳive hours and then his release, there could be no other safe conclusion than it is linked with the trial ... this trial.11 Needless to say, the vagueness of the replies from Defence Counsel did nothing to persuade us. Having now considered the present Motion, it does not, in our judgment, advance the oral arguments they put to the Court on 26 April 2005. It is clear that the prayer for relief is based on allegations which have not been substantiated and are, at best, speculative. 42. We fĳind that the test for the application of Rule 54 mentioned earlier has not been met in this case. The relief sought by the Defence is in respect of situations which have not been conclusively proved to exist, and hence cannot be regarded as being necessary for the purposes prescribed in Rule 54. Accordingly, we fĳind that no grounds have been established for orders under Rule 54. 43. We note the submissions of the parties in respect of the appropriateness of the relief sought. However, in view of what we have said, any consideration of that issue in this decision would be merely an unnecessary academic exercise. FOR THE ABOVE REASONS, THE TRIAL CHAMBER dismisses the Motion. Done at Freetown, Sierra Leone, this 28th day of July 2005.

10 See transcript 26 April 2005 page 11, lines 20–26. 11 See transcript 26 April 2005 page 12, lines 13–29 and page 13, line 1.

TRIAL CHAMBER II

Before: Justice Teresa Doherty, Presiding Judge Justice Richard Lussick Justice Julia Sebutinde Registrar: Robin Vincent Date: 2 August 2005 PROSECUTOR Against Alex Tamba Brima Brima Bazzy Kamara Santigie Borbor Kanu (Case No.SCSL-04-16-T)

DECISION ON JOINT DEFENCE APPLICATION FOR LEAVE TO APPEAL FROM DECISION ON DEFENCE MOTION TO EXCLUDE ALL EVIDENCE FROM WITNESS TF1-277

TRIAL CHAMBER II (“Trial Chamber”) of the Special Court for Sierra Leone (“Special Court”), composed of Justice Teresa Doherty, presiding, Justice Richard Lussick and Justice Julia Sebutinde; SEISED of the Joint Defence Application for Leave to Appeal from Decision on Joint Defence Motion to Exclude All Evidence from Witness TF1-277 Pursuant to Rule 89C and/or Rule 95 issued on 24 May 2005, fĳiled on 26 May 2005 on behalf of Brima, Kamara and Kanu (“Motion”); NOTING the Decision on Joint Defence Motion to Exclude All Evidence from Witness TF1-277 Pursuant to Rule 89C and/or Rule 95 issued on 24 May 2005, (“the impugned Decision”); CONSIDERING the Prosecution Response to the Motion, fĳiled on 6 June 2005; CONSIDERING ALSO the Defence Reply, fĳiled on 9 June 2005; HEREBY DECIDES this Motion solely on the written submissions.

I. Submissions of the Parties

1. Defence Counsel submit that the admission of hearsay evidence of witness TF1-277 who has been confronted with a prior inconsistent statement on the same issue is a fundamental matter that will afffect the trial and this creates both exceptional circumstances and irreparable prejudice to the accused. 2. They submit the hearsay was “indirect hearsay” and admission of “indirect hearsay” has not, as yet, been considered by the Appeal Chamber. Further admission of “indirect hearsay” instead of hearing the direct evidence of the person making the statement, may lead to a violation of the “right” to cross-examine the “original sources.” They refer to the decision at paragraph 22. 3. The Prosecution refer to the ruling and submit hearsay evidence is admissible. They refer to the high threshold that must be met before leave to appeal can be granted and submit it has not been met. 4. In reply Defence Counsel joins issue on the Prosecution response on both issues of irreparable prejudice and exceptional circumstance.

II. Deliberations

5. The arguments put forward by the Defence in the instant application are the same arguments as submitted in the original motion viz. Joint Defence Motion to Exclude All Evidence from Witness TF1-277. The decision thereon interlocutory decisions – trial chamber 533 makes it clear that admission of evidence is not indicative of a fĳinding as to its probative value.1 6. As stated in the impugned decision, “[T]he probative value of hearsay evidence is something to be considered by the Trial Chamber at the end of the trial when weighing and evaluating the evidence as a whole, in light of the context and nature of the evidence itself, including the credibility and reliability of the relevant witness.”2 In other words, evidence may be excluded because it is unreliable, but it is not necessary to demonstrate the reliability of the evidence before it is admitted. Therefore, there is no merit in the present claim of the accused that they have sufffered any prejudice. 7. The Defence supports its submission of “exceptional circumstances” by submitting that the Trial Chamber accepted the “interview notes as having a form of substantive validity.”3 The submission by Defence stressing the importance of the actual document containing the statement attributed to the witness, is in our view irrelevant. The pertinent issue is that the witness made a pre-trial statement on which the Defence were affforded the opportunity to challenge him in cross-examination. 8. We consider and apply Rule 73(B) of the Rules of Procedure and Evidence for the Special Court for Sierra Leone (“the Rules”) which provides that: Decisions rendered on such motions are without interlocutory appeal. However, in exceptional circumstances and to avoid irreparable prejudice to a party, the Trial Chamber may give leave to appeal. Such leave should be sought within 3 days of the decision and shall not operate as stay of proceedings unless the Trial Chamber so orders. The general rule is that decisions on motions brought under Rule 73 are without interlocutory appeal, and that only if the conjunctive conditions of exceptional circumstances and irreparable prejudice to the accused in Rule 73(B) are satisfĳied, a Trial Chamber may grant leave to appeal; 9. We adopt and apply the decision of Trial Chamber I that Rule 73(B): “involves a high threshold that must be met before this Chamber can exercise its discretion to grant leave to appeal. The two limbs of the test are clearly conjunctive, not disjunctive: in other words, they must both be satisfĳied”;4

1 Para. 15 of the impugned Decision. 2 Para. 15 of the impugned Decision. 3 Para. 10 of the Defence Motion. 4 Prosecutor v. Sesay et al., Case No. SCSL-2004-15-PT, Decision on the Prosecutor’s Application for Leave to File an Interlocutory Appeal against the Decision on the Prosecution Motion for Joinder, 13 February 2004; Prosecutor v. Brima et al., Decision on the Prosecutor’s Application for Leave to File an Interlocutory Appeal against the Decision on the Prosecution Motion for Joinder, 13 February 2004. 534 part ii

10. We hold that neither exceptional circumstances nor irreparable prejudice to the Accused persons has been shown to the satisfaction of the Trial Chamber. FOR THE FOREGOING REASONS WE HEREBY DISMISS the Motion. Done at Freetown, Sierra Leone, this 2nd day of August 2005. TRIAL CHAMBER II

Before: Justice Teresa Doherty, Presiding Judge Justice Richard Lussick Justice Julia Sebutinde Registrar: Robin Vincent Date: 5 August 2005 PROSECUTOR Against Alex Tamba Brima Brima Bazzy Kamara Santigie Borbor Kanu (Case No.SCSL-04-16-T)

DECISION ON PROSECUTION REQUEST FOR LEAVE TO CALL AN ADDITIONAL WITNESS (ZAINAB HAWA BANGURA) PURSUANT TO RULE 73bis (E), AND ON JOINT DEFENCE NOTICE TO INFORM THE TRIAL CHAMBER OF ITS POSITION VIS-À-VIS THE PROPOSED EXPERT WITNESS (MRS. BANGURA) PURSUANT TO RULE 94bis

TRIAL CHAMBER II (“the Trial Chamber”) of the Special Court for Sierra Leone (“Special Court”) composed of Hon. Justice Teresa Doherty, presiding, Hon. Justice Richard Lussick and Hon. Justice Julia Sebutinde; SEIZED of the Prosecution Request For Leave To Call An Additional Witness Pursuant To Rule 73bis (E), fĳiled on the 4 May 2005 (“the Motion”);1 NOTING the Joint Defence Response To Prosecution Request For Leave To Call An Additional Witness Pursuant To Rule 73bis (E), fĳiled on behalf of the accused Alex Tamba Brima, Santigie Borbor Kanu and Brima Bazzy Kamara on the 13 May 2005 (“the Response”);2 NOTING the Joint Defence Notice To Inform The Trial Chamber Of Its Position Vis-à-vis The Proposed Expert Witness Mrs. Bangura Pursuant To Rule 94bis, fĳiled on behalf of the accused Santigie Borbor Kanu and Brima Bazzy Kamara on the 13 May 2005 (“the Defence Notice”);3 NOTING the Prosecution’s Combined Reply To The Joint Defence Response To Prosecution Request For Leave To Call An Additional Witness Pursuant To Rule 73bis (E) And The Joint Defence Notice To Inform The Trial Chamber Of Its Position Vis-à-vis The Proposed Expert Witness Mrs. Bangura Pursuant To Rule 94bis, fĳiled on 18 May 2005 (“the Combined Reply”);4 NOTING also the Joint Defence Reply To The Prosecution’s Combined Reply To The Joint Defence Response To Prosecution Request For Leave To Call An Additional Witness Pursuant To Rule 73bis (E) And The Joint Defence Notice To Inform The Trial Chamber Of Its Position Vis-à-vis The Proposed Expert Witness Mrs. Bangura Pursuant To Rule 94bis, fĳiled on 19 May 2005 (“the Defence Reply to Combined Reply”)5 MINDFUL of the Order of Trial Chamber I To The Prosecution To File Disclosure Materials And Other Materials In Preparation For Commencement of Trial dated 1 April 2004 (“the original Order”)6 and the Trial Chamber’s Order To Prosecution To Provide Order Of Witnesses And Witness Statements dated 9 February 2005 (“the subsequent Order”); MINDFUL of the Prosecution’s Witness List fĳiled on 26 April 2004; Revised Witness List fĳiled on 9 February 2005 and Updated Witness List fĳiled on 28 April 2005;

1 Document No. SCSL-2004-16-T 245. 2 Document No. SCSL-2004-16-T 270. 3 Document No. SCSL-2004-16-T 269. 4 Document No. SCSL-2004-16-T 276. 5 Document No. SCSL-2004-16-T 277. 6 Prosecutor v. Alex Tamba Brima et al., Case No.SCSL-2004-16-T, Order to the Prosecution to File Disclosure Materials and Other Materials in Preparation for Commencement of Trial of 1 April 2004. interlocutory decisions – trial chamber 537

PURSUANT to the provisions of Article 17 of the Statute of the Special Court (“the Statute”) Rule 7(C), Rule 66(A)(ii), Rule 73, Rule 73bis and Rule 94bis of the Rules of Evidence and Procedure of the Special Court (“the Rules”); HEREBY issues the following Decision based solely on the written submissions of the parties.

I. Introduction

1. On April 2004, Trial Chamber I issued the original Order directing the Prosecution in the case of The Prosecutor v. Alex Tamba Brima et al.7 to fĳile disclosure materials and other materials in preparation for the commencement of the trial. Pursuant to the original Order the Prosecution fĳiled a Witness List including a summary of the expected testimony of each witness on 26 April 2004. On this list the Prosecution included one Ms. Beth Vann, a Technical Advisor to the Reproductive Health Response in Conflict Consortium to testify on the broad subject of all sexual violence during the conflict in Sierra Leone as Witness TF1-332. The Prosecution avers that upon receiving Ms. Vann’s fĳinal report on 5 October 2004 the Prosecution came to the conclusion that most aspects of sexual violence in the indictment could be proved solely by the testimony of fĳirst-hand witnesses and that Ms. Vann’s expert testimony in that regard was no longer necessary save for one aspect, namely, the inhumane act of forced marriage as charged in Counts 6–9 of the Further Amended Consolidated Indictment. The Prosecution avers that given the distinct social and cultural consequences of forced marriage and its uniqueness to the Sierra Leone conflict, the best evidence in that regard would come from a Sierra Leonean expert, rather than from Ms. Vann. 2. On 9 February 2005 the Trial Chamber issued the subsequent Order directing the Prosecution to provide its order of witnesses and witness statements. Pursuant to the subsequent Order the Prosecution fĳiled a Revised Witness List on 9 February 2005 and an Updated Witness List on 28 April 2005. (Ms. Vann’s name does not appear on either of these Witness Lists.) 3. Subsequently in February 2005 the Prosecution identifĳied Mrs. Zainab Hawa Bangura a national of Sierra Leone and commissioned her to carry out research on the aspect of forced marriages during the Sierra Leone conflict. Having received a report of her fĳindings the Prosecution now seek leave of court to call Mrs. Bangura as an expert to testify on the subject and to formally disclose a report of her fĳindings to the Defence. The Prosecution fĳiled this application seeking leave of court to vary their Updated Witness List by including Mrs. Zainab Hawa

7 Case No. SCSL-2004-16-T. 538 part ii

Bangura as an expert witness, pursuant to Rule 73bis (E) of the Rules and to disclose her report to the Defence pursuant to Rule 66(A)(ii) of the Rules.

II. Submissions

The Motion 4. The Prosecution seeks leave of court pursuant to Rule 73bis (E) of the Rules to vary its Updated Witness List fĳiled on 28 April 2005 by adding the name of Mrs. Zainab Hawa Bangura to that list as a proposed expert witness for the Prosecution. The Prosecution submits that the strong relevance and materiality of Mrs. Bangura’s evidence to the Prosecution case demonstrates “good cause” and that her addition to the Prosecution’s list of witnesses is “in the interests of justice.” The Prosecution further seeks leave of court to call Mrs. Zainab Hawa Bangura as an expert witness to testify on the issue of forced marriage and to formally disclose to the Defence her expert report and curriculum vitae pursuant to Rule 66(A)(ii) and Rule 94bis (A) of the Rules. The proposed report is appended to the Motion as Annex B, while her full curriculum vitae is Annex A. 5. The Prosecution submits that it had originally intended to call one Ms. Beth Vann, a Technical Advisor to the Reproductive Health Response in Conflict Consortium, to testify on the broad subject of all sexual violence during the conflict in Sierra Leone and had included her name on their Witness List fĳiled on 26 April 2004 as “Witness TF1-332.” However, upon receiving Ms. Vann’s fĳinal report on 5 October 2004 the Prosecution came to the conclusion that most aspects of sexual violence in the indictment could be proved by the direct testimony of fĳirst- hand witnesses and that Ms. Vann’s expert evidence in that regard was no longer necessary, except for the aspect of forced marriages which in the Prosecution’s view would best be proved by the evidence of a Sierra Leonean expert, given its distinct social and cultural consequences and uniqueness to the Sierra Leone conflict. According to the Prosecution, the Sierra Leonean expert would be able to inform the Trial Chamber of the long-term social, cultural, physical and psychological meanings and consequences of forced marriage within the Sierra Leonean context. 6. Between October and November 2004 the Prosecution set about looking for a suitable Sierra Leonean expert on the subject of forced marriages and ultimately identifĳied Mrs. Zainab Hawa Bangura, the Executive Director of the National Accountability Group (NAG)-Sierra Leone. On 14 February the Prosecution commissioned Mrs. Bangura to conduct research on the subject compile a report of her fĳindings and to testify on behalf of the Prosecution in the AFRC case. The Prosecution submits that between 14 February 2005 and 4 May 2005 (date of fĳiling Motion), Mrs. Bangura carried out her research and drafted the report (Annex B). interlocutory decisions – trial chamber 539

Mrs. Bangura’s evidence is intended to include (a) the context within which forced marriage occurred during the conflict; (b) the socio-cultural meaning of forced marriage during the conflict; and (c) the long-term social, cultural, physical and psychological consequences of forced marriage during the conflict for its victims. 7. The Prosecution submits that the addition of Mrs. Bangura as an expert witness will cause minimal prejudice to the Defence as the Prosecution will disclose her report (Annex B) to the Defence in compliance with the provisions of Rules 66(A)(ii) and 94bis of the Rules, thus giving the Defence sufffĳicient time within which to investigate and prepare rebuttal evidence. The Prosecution further submits that Mrs. Bangura is not expected to testify until a later stage of the proceedings, once key evidence is presented before the court, thereby giving the Defence adequate time to prepare.

The Response and Notice 8. In their Response the Defence for the accused Alex Tamba Brima, Santigie Borbor Kanu and Brima Bazzy Kamara oppose the Motion and request the Trial Chamber (a) to exclude Mrs. Bangura from the Prosecution’s witness list and (b) not to admit the proposed report (Annex B) into evidence, on the grounds that the Prosecution has failed to establish the requirement of “good cause” in breach of Rule 73bis of the Rules. Furthermore, the Defence wishes to notify the Trial Chamber that it does not accept the proposed expert witness statement and indicates in the alternative, that it wishes pursuant to the provisions of Rule 94bis (B) to cross-examine both Mrs. Bangura and her co-author, Ms. Christina Solomon. 9. The Defence submits that the Prosecution has failed (a) to indicate that the reasons why it is bringing forward this witness at so late a stage in the proceedings, are directly related and material to the facts in issue; (b) to explain why Mrs. Bangura’s evidence is relevant and material to the Prosecution case; (c) to demonstrate that the addition of Mrs. Bangura’s evidence to the Prosecution case at this late stage will not unfairly prejudice the Defence case, and (d) to demonstrate due diligence in that the Prosecution failed to inform the Defence at the earliest opportunity (i.e. shortly after 14 February 2005) of their intention to call Mrs. Bangura and instead waited to do so until May 2005, upon receiving her report. 10. The Defence further indicated in the Defence Notice that the Trial Chamber should not permit Mrs. Bangura to give evidence as an expert witness because in their opinion, she lacks the necessary qualifĳications to be able authoritatively to give expert opinion on the subject of forced marriages during the Sierra Leonean conflict. The Defence observe that since Mrs. Bangura’s educational background is not in sociology, anthropology, psychology, medicine or other related fĳield but 540 part ii rather is in insurance, she is not qualifĳied to give expert opinion on the subject. The Defence also object to the admission in evidence of Mrs. Bangura’s report (Annex B) as expert opinion on the subject of forced marriages on the grounds that (a) the title of the report seems to suggest that Mrs. Bangura has particular knowledge of the RUF and AFRC organisations, which fact is not elaborated upon by the Prosecution in their Motion nor in Mrs. Bangura’s curriculum vitae, to the prejudice of the Defence; (b) the report is not relevant to the AFRC case as it is mainly confĳined to research conducted in the province of Kailahun which Mrs. Bangura alleges “was the only district that the RUF had control of during the entire period of the war”; (c) the report is inaccurate and incomplete as it omits to refer to relevant sources and data for the assertions contained therein; (d) the conclusion on page 10 of the report to the efffect that “early or arranged marriages are no longer common in Sierra Leone” is grossly incorrect and is unsubstantiated; (e) the list of references used by the authors of the report is inadequate and insufffĳicient to provide a proper basis for their research; and (f) the report contains numerous and unfounded statements, conclusions and generalisations that disqualify it from the status of expert opinion. 11. In the alternative the Defence notifĳies the Trial Chamber pursuant to the provisions of Rule 94bis (B)(ii) of the Rules, of their intention to cross-examine Mrs. Bangura as well as her co-author Ms. Christina Solomon as expert witnesses. The Defence argue that in the event that Mrs. Bangura is unable to answer any questions regarding the report or the underlying research, then the Defence should be able to cross-examine Ms. Solomon as well.

The Combined Reply 12. In reply to the Defence Response the Prosecution maintains that the issue of forced marriage in the context of the conflict in Sierra Leone warrants the calling of expert opinion. Forced marriage as an inhumane act under Article 2(i) of the Statute is a novel legal charge. The complexity and sensitivity of the issue renders an expert opinion both material and relevant. The Prosecution was only able to make the assessment that a replacement expert witness was required to testify specifĳically on the issue of forced marriage after reviewing the report of Ms. Vann which report did not include an analysis or opinion on the issue. The Prosecution acted diligently and expeditiously in identifying Mrs. Bangura as a replacement for Ms. Vann and in disclosing her report to the Defence pursuant to Rule 94bis (A) of the Rules as soon as they had received it in May 2005. 13. The Prosecution submits that notwithstanding her educational background in insurance, Mrs. Bangura qualifĳies as an expert in the area of forced marriage in the cultural context of Sierra Leone as she possesses relevant experience. The Prosecution expects that her evidence will assist the court in understanding the interlocutory decisions – trial chamber 541 context and consequences of forced marriages in the conflict in Sierra Leone and is accordingly relevant and material. 14. The Prosecution submits that it is not sufffĳicient for the Defence to allege prejudice without identifying the specifĳic prejudice or infringement of Statutory right that the accused persons are likely to sufffer as a result of the Prosecution calling Mrs. Bangura’s evidence at this stage of the trial. The Prosecution further observes that the Defence will not sufffer prejudice as they have the option to adduce their own expert evidence in rebuttal. The Prosecution submits that contrary to the Defence submissions, they could not have disclosed Mrs. Bangura’s report in February 2005 as it had not yet been compiled. Mrs. Bangura submitted her report to the Prosecution on 4 May 2005 whereupon the Prosecution immediately disclosed the report to the Defence and fĳiled this Motion. Citing the ICTY Decision in The Prosecutor v. Zejnil Delalic et al.8 the Prosecution submits that “the Trial Chamber is enjoined to utilise all its powers to facilitate the truth fĳinding process in the impartial adjudication of the matter between the parties. It is thus important to adopt a flexible approach when considering the management of witnesses. Where the testimony of a witness is important to the Prosecution or the Defence, the Trial Chamber will ensure that such witness is heard, subject, naturally, to the limits prescribed in the Statute and the Rules. In the present case the witnesses are deemed material to the Prosecution and it would be contrary to the interests of justice to exclude their testimony. The rights of the accused are in no sense afffected by the adoption of such a flexible approach.” 15. In response to the Defence Notice pursuant to Rule 94bis (B) of the Rules the Prosecution submits that Mrs. Bangura’s experience and exposure to the issues surrounding forced marriage and sexual violence generally are clearly evident from her curriculum vitae and professional biography appended to her report. Citing the ICTR Decision in The Prosecutor v. Bizimungu et al.,9 the Prosecution submits that “The role of an expert is to assist the Chamber in understanding the context in which the events took place. The expert must possess a relevant specialised knowledge acquired through education, experience or training in the proposed fĳield of expertise.” The Prosecution further submits that despite Mrs. Bangura’s educational background being in the fĳield of insurance, her extensive experience is a material factor that qualifĳies her as an expert with relevant specialised knowledge on the issue of forced marriage during the Sierra Leone conflict. The Prosecution further maintains that the rationale behind their disclosure obligations under

8 Prosecutor v. Zejnil Delalic Zdravko Micic alias “Pavo” Hazim Delic Esad Landzo alias “Zenga,” Decision on Confĳidential Motion to seek Leave To Call Additional Witness, 4 September 1997. 9 Prosecutor v. Bizimungu et al., Case No. ICTR-99-50-T, Oral Decision on Qualifĳication of Prosecution Expert Sebahire Deo Mbonyikebe, 2 May 2005. 542 part ii

Rule 94bis (A) of the Rules is solely to ascertain whether the Defence accepts the statement of an expert fĳiled pursuant to the Rule and if not, whether the Defence intends to cross-examine the proposed expert witness. It is not appropriate at this stage of the proceedings for the Defence to challenge the content of Mrs. Bangura’s report or the methodology used in compiling it. 16. Regarding the Defence request to cross-examine Ms. Christina Solomon, the Prosecution submits that Ms. Solomon did not co-author the report of Mrs. Bangura as alleged but merely provided support in the compilation of the said report. The Prosecution further submits that Rule 94bis makes provision for the Defence to cross-examine the expert witness and not provide for the cross- examination to any other person. The Prosecution accordingly request the Trial Chamber not to grant the Defence request to cross-examine Ms. Solomon.

The Defence Reply to Combined Reply 17. The Defence submits by way of preliminary objection that by fĳiling a combined Prosecution Reply to the Defence Response pursuant to Rule 73bis of the Rules and Prosecution Response to the Defence Request and Notice pursuant to Rule 94bis of the Rules, the Prosecution’s Combined Reply violated the provisions of Rule 7(C) of the Rules. The Defence submit further that the Rules do not permit a party to address two separate legal issues comprised in separate documents, in a single combined response and reply. The Defence accordingly request the Trial Chamber to disregard the second part of the Prosecution’s Combined Reply as it was not fĳiled in proper form. 18. The Defence reiterate their earlier argument that Mrs. Bangura is not quali- fĳied to give expert opinion on the issue of forced marriage, and that the burden of proof remains on the Prosecution and not the Defence, to adduce expert evidence that meets the proper standards of international criminal justice. The Defence reiterate their prayer that the Trial Chamber should not admit in evidence Mrs. Bangura’s report (Annex B).

III. The Applicable Law

19. The provisions of Rule 73bis (B) of the Rules requiring the Prosecution to fĳile before the commencement of the trial certain documents (specifĳied in Rule 73bis (B) ) including a list of witnesses that the Prosecution intends to call in order to prove its case, are amongst others intended to put the Defence and the Trial Chamber on notice as to the number of witnesses the Prosecution intends to call and the substance of their evidence in relation to the indictment. This is in addition to the Prosecution’s disclosure obligations pursuant to Rules 66, 67 and 68 of the Rules. The overall rationale for such early disclosure is to affford the Defence interlocutory decisions – trial chamber 543 sufffĳicient time to prepare their defence as well as to ensure an orderly and expeditious trial.10 Accordingly, once the trial has commenced the Prosecution is obligated to abide by their witness list and statements as fĳiled and may only vary the witness list in accordance with the provisions of Rule 73bis (E) of the Rules which provides as follows:

“73 (E) After the commencement of the trial, the Prosecutor may, if he considers it to be in the interest of justice, move the Trial Chamber for leave to reinstate the list of witnesses or to vary his decision as to which witnesses are to be called.” 20. In addition, Rule 66(A)(ii) of the Rules, on the disclosure of witness statements provides that the Prosecution shall: “(ii) Continuously disclose to the Defence copies of the statements of all additional prosecution witnesses whom the Prosecutor intends to call to testify, but not later than 42 days before the trial, or as otherwise ordered by a Judge of the Trial Chamber either before or after the commencement of the trial, upon good cause being shown by the Prosecution. Upon good cause being shown by the Defence, a Judge of the Trial Chamber may order that copies of the statements of additional prosecution witnesses that the Prosecutor does not intend to call be made available to the Defence within a prescribed time.” 21. Although Rule 66(A)(ii) does not stipulate what amounts to “good cause” and 73bis (E) does not stipulate what amounts to “the interests of justice” international tribunals have had occasion to interpret and apply similar provisions, thereby expanding the jurisprudence in this area. Trial Chamber I of the Special Court has observed in its own Decisions of The Prosecutor v. Sam Hinga Norman et al.,11 and The Prosecutor v. Issa Hassan Sesay et al.,12 that when interpreting the provisions of Rule 66(A)(ii) together with Rule 73bis (E) of the Rules and articulating the circumstances that give rise to a showing of ‘good cause’ and ‘the interests of justice,’ certain factors should be taken into consideration. Applying the principles laid down in the ICTR case of The Prosecutor v. Nahimana, Trial Chamber I has noted that:

“In assessing the ‘interests of justice’ and ‘good cause’ Chambers have taken into account such considerations as the materiality of the testimony, the complexity of the case, prejudice to the Defence including elements of surprise, on-going investigations, replacements and corroboration of evidence. The Prosecution’s duty under the Statute to present the best available evidence to prove its case has to be balanced

10 Under Article 17(4) of the Statute of the Special Court, an accused person is entitled, inter alia to adequate time to prepare as well as to be tried without undue delay. 11 The Prosecutor v. Sam Hinga Norman et al., Decision on Prosecution Request for Leave to Call Additional Witnesses, 29 July 2004, paras. 15–18. 12 The Prosecutor v. Issa Hassan Sesay et al., Decision on Prosecution Request for Leave to Call Additional Witnesses and Disclose Additional Witness Statements, 11 February 2005, paras. 25–27. 544 part ii

against the right of the Accused to have adequate time and facilities to prepare his defence and his right to be tried without undue delay.”13 22. Trial Chamber I continued to observe that additional factors include “the sufffĳiciency and time of disclosure of the witness information to the Defence and the probative value of the proposed testimony.” Applying the principles laid down in the ICTR case of The Prosecutor v. Basogora, Trial Chamber I has noted that: “These considerations (under Rule 73bis (E) ) require a close analysis of each witness, including the sufffĳiciency and time of disclosure of witness information to the Defence; the probative value of the proposed testimony in relation to the existing witnesses and allegations in the indictments; the ability of the Defence to make an efffective cross-examination of the proposed testimony, given its novelty or other factors; and the justifĳication offfered by the Prosecution for the addition of the witness.”14 23. On the issue of Mrs. Bangura’s qualifĳication as an expert on the subject of forced marriage during the Sierra Leonean conflict, neither the Statute of the Special Court nor the Rules contain a defĳinition of the term “expert.” However, Article 1(f) of the Headquarters Agreement Between the Republic of Sierra Leone and the Special Court for Sierra Leone contains the following defĳinition: “(f) “Expert” means a person referred to as such in Article 15 of the Agreement establishing the Special Court and appearing at the instance of the Special Court, a suspect or an accused to present testimony based on special knowledge, skills, experience or training.” 24. Rule 94bis of the Rules specifĳically provides for the disclosure of statements of expert witnesses by either party to a trial and admission by the trial Chamber of statements of expert witnesses that are not contested. The Rule also provides for the cross-examination of expert witnesses whose statements are contested. The Rule provides as follows: “94bis: Testimony of Expert Witnesses (A) Notwithstanding the provisions of Rule 66(A), Rule 73bis (B)(iv)(b) and Rule 73 ter (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 fĳiled with the Trial Chamber not less than twenty one days prior to the date on which the expert is expected to testify.

13 The Prosecutor v. Nahimana, Decision on the Prosecutor’s Oral Motion for Leave to Amend the List of Selected Witnesses, 26 June 2001, para. 20 and The Prosecutor v. Nahimana, Decision on the Prosecutor’s Application to Add Witness X to its List of Witnesses and for Protective measures, 14 September 2001, para. 5. 14 The Prosecutor v. Basogora, Decision on Prosecution Motion for Addition of Witnesses Pursuant to Rule 73bis (E), 26 June 2003, para. 14. interlocutory decisions – trial chamber 545

(B) Within fourteen days of fĳiling of the statement of the expert witness, the opposing party shall fĳile 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.” 25. The purpose of this Rule (which is identical to Rule 94bis of the ICTR Rules of Procedure and Evidence) is to expedite trial proceedings by arranging for early exchange of expert reports to facilitate identifĳication of the issues in dispute and to identify the need or otherwise to call the expert witnesses to testify in person.15 Although the Rule does not contain a defĳinition of “an expert” or what qualifĳies as “expert evidence or opinion” international tribunals have had occasion to interpret and apply similar provisions, thereby greatly contributing to the jurisprudence in this area. The International Criminal Tribunal for the former Yugoslavia (ICTY) has defĳined an expert as a“ person whom by virtue of some specialised knowledge, skill or training, can assist the court to understand or determine an issue in dispute.”16 Similarly the International Criminal Tribunal for Rwanda (ICTR) has observed that “the role of an expert is to assist the Chamber in understanding the context in which the events took place. The expert must possess a relevant specialised knowledge acquired through education, experience or training in his proposed fĳield of expertise.”17 The ICTY has further held that “an expert witness is expected to give his or her expert opinion in full transparency of the established or assumed facts he or she relies upon and of the methods used when applying his or her knowledge, experience or skills to form his or her opinion.”18 Lastly the ICTY has held that “the admission of evidence should clearly be distinguished from the weight and probative value that will eventually be given to each piece of evidence. The weight to be attributed to an expert witness statement will be appreciated by the Trial Chamber at the end of the trial and in light of all the evidence adduced.”19 26. Guided by the above law and jurisprudence, the Trial Chamber now proceeds to consider the merits of the Prosecution Motion and defence Response.

15 International Criminal Practice by Jones and Powles, 3rd Edition, para. 8.5.736. 16 The Prosecutor v. Stanislav Galic, IT-98-29-T, Decision Concerning the Expert Witness Ewa Tabeau and Richard Philips, 3 July 2002; and The Prosecutor v. Stanislav Galic, IT-98-29-T, Decision on the Expert Witness Statements Submitted by the Defence, 27 January 2003. 17 The Prosecutor v. Casimir Bizimungu et al., Case No. ICTR-99-50-T, Oral Decision on Qualifĳication of Prosecution Expert Sebahire Deo Mbonyikebe, 2 May 2005; and The Prosecutor v. Aloys Simba, Case No. ICTR-01-76-I, Decision on Defence Motion to Disqualify Expert Witness Alison Des Forges, and to Exclude Her Report, 14 July 2004. 18 The Prosecutor v. Galic, IT-98-29-T, Decision Concerning the Expert Witness Ewa Tabeau and Richard Philips, 3 July 2002. 19 The Prosecutor v. Stanislav Galic, IT-98-29-T, Decision on the Expert Witness Statements Submitted by the Defence, 27 January 2003. 546 part ii

IV. The Merits of the Application

The Defence’s preliminary objection to combined Prosecution Reply 27. The Trial Chamber wishes to express its strong disfavour for the practice of combining pleadings or submissions for which the Rules prescribe diffferent fĳil- ing time limits. As the Defence has rightly observed, Rule 7(C) of the Rules provides that “unless otherwise ordered by the Trial Chamber, a response to a motion shall be fĳiled within ten days while a reply to response shall be fĳiled within fĳive days.” We note that in this case the Prosecution’s Combined Reply comprises two pleadings, namely the Prosecution Response to the Defence Reply (for which a fĳiling time limit of fĳive days is applicable), and the Prosecution’s Reply to the Defence Notice and Request (for which a fĳiling time limit of ten days is applicable). The proper and preferred course of action is for the parties to fĳile the various responses and replies in separate documents in order to avoid confusion over issues as well as time frames. In the present case we observe that the irregularity by the Prosecution has not occasioned a miscarriage of justice as their “Combined Reply” was fĳiled on the 18 May 2005, fĳive days after the fĳiling of the Defence Reply. The Prosecution therefore appears to have complied with both time limits prescribed by Rule 7(C). The preliminary objection is accordingly overruled.

The Application to vary the Prosecution Witness List pursuant to Rule 73bis (E) 28. In determining whether or not to grant this application, the Trial Chamber is mindful of the need to balance the Prosecution’s duty under the Statute to present the best available evidence to prove its case, with the rights of the accused persons Brima, Kamara and Kanu to have adequate time and facilities to prepare their defence, and to be tried without undue delay. In this case, the requirement to illustrate “good cause” and “the interests of justice” connotes a responsibility upon the Prosecution to advance credible reasons or justifĳication for failing to disclose to the Defence the existence of Mrs. Bangura as a potential Prosecution witness and to disclose her report within the time frames prescribed under Rule 66(A)(ii) of the rules. In particular the Prosecution must establish to the satisfaction of the Trial Chamber the following: (i) That the reasons or explanation advanced by the Prosecution are directly related and material to the facts in issue; (ii) That the facts to be provided by Mrs. Bangura in her report and eventually her testimony, are relevant and material to determining the issues in the AFRC Trial and would contribute to serving and fostering the overall interests of the law and justice; (iii) That granting at this stage, leave to call a new witness and the disclosure of a new statement will not unfairly prejudice the right of the interlocutory decisions – trial chamber 547

accused to a fair and expeditious trial as guaranteed by Article 17(4)(a) and (b) of the Statute as well as Rule 26bis of the Rules; (iv) That the evidence the Prosecution is now seeking to call, could not have been discovered or made available at a point earlier in time, notwithstanding the exercise of due diligence on their part.20 29. We note the Prosecution submissions that the evidence of Mrs. Bangura is intended to replace that of Ms. Beth Vann who the Prosecution decided they weren’t calling as a witness after coming to the conclusion that “most aspects of sexual violence could be proved solely by the testimony of fĳirst-hand witnesses, without the need for Ms. Vann’s type of expert testimony.” We further note the Prosecution submissions that the subject of forced marriages during the Sierra Leone conflict is an extremely sensitive topic, particularly given its distinct social and cultural consequences and its uniqueness to the Sierra Leone conflict and that the Trial Chamber would best be served to hear testimony from Mrs. Bangura, a Sierra Leonean expert on the matter. We note the Prosecution explanation that the earliest opportunity they had to disclose the existence of Mrs. Bangura as a potential Prosecution and her report to the Defence was in May 2005 after she had submitted her report to the Prosecution, and not before. We note and accept the fact that “forced marriage” is one of the forms or acts of the crime of “sexual violence” as charged in Counts 6–9 of the Further Amended Consolidated Indictment.21 We further note and accept the Prosecution submission that Mrs. Bangura’s evidence is intended to include (a) the context within which forced marriage occurred during the conflict; (b) the socio-cultural meaning of forced marriage during the conflict; and (c) the long-term social, cultural, physical and psychological consequences of forced marriage during the conflict for its victims, all of which factors are relevant and material to the facts in issue in the trial. We also note and accept the Prosecution submission that Mrs. Bangura is not expected to testify until a later stage of the proceedings, once key evidence is presented before the court in order to give the Defence adequate time to prepare. We note that apart from arguing that the Prosecution should have disclosed the existence of Mrs. Bangura and her intended testimony to the Defence as soon as they had identifĳied her as a potential Prosecution witness (i.e. on 14/02/05), the Defence do not con- trovert the Prosecution submissions nor do they allege any actual prejudice occasioned to them by this application. Accordingly, the Trial Chamber is satisfĳied that

20 These four criteria were considered by Trial Chamber I in Issa Hassan Sesay et al., Case No. SCSL-2004-15-T, Decision on Prosecution Request to Call Additional Witnesses and disclose Additional Witness statements, 11 February 2005. 21 The Prosecutor v. Alex Tamba Brima et al., Case No. SCSL-04-16-T, Further Amended Consolidated Indictment, 18 February 2005, paragraphs 51–57. 548 part ii the explanation or justifĳication provided by the Prosecution for calling Mrs. Bangura as a Prosecution witness, is credible. We also fĳind that the proposed testimony of Mrs. Bangura is relevant and material to the indictment and to the facts in issue. We accept the Prosecution explanation that until they had actually seen and approved a draft report of Mrs. Bangura’s fĳindings, the Prosecution could not present Mrs. Bangura as a potential witness. We note that the Prosecution fĳiled this application on 4 May 2005 the same day they received Mrs. Bangura’s draft report. We are therefore satisfĳied that the Prosecution has not exhibited lack of due diligence in this regard. In the premises we fĳind that the Prosecution has demonstrated the ingredients of “good cause” and “interest of justice” warranting the granting of their application pursuant to Rule 73bis (E) of the Rules.

The Defence Notice and Application to Exclude Mrs. Bangura’s Expert Testimony 30. We note that under the provisions of Rule 94bis (B) of the Rules a party opposing the fĳiling of the statement of an expert witness has two options, namely (a) to notify the Trial Chamber that it accepts the expert witness statement, in which case the Trial Chamber may admit the statement without necessarily calling the witness to testify; or (b) to notify the Trial Chamber that it wishes to cross- examine the expert witness, in which case the witness will necessarily appear in court for purposes of cross-examination. There is no third option under the Rule whereby the Trial Chamber is permitted, at the request of the opposing party, to exclude or lock out an expert witness or her evidence, much less at this early stage when the witness has not yet testifĳied. We note the Defence submissions that in their opinion, since Mrs. Bangura’s educational background is not in sociology, anthropology, psychology, medicine or other related fĳield but rather is in insurance, she is not qualifĳied to give expert opinion on the subject of forced marriages. We note further the Defence objection to the admission in evidence of Mrs. Bangura’s report (Annex B) as expert opinion on the subject of forced marriages on the grounds that “(a) the title of the report seems to suggest that Mrs. Bangura has particular knowledge of the RUF and AFRC organisations, which fact is not elaborated upon by the Prosecution in their Motion nor in Mrs. Bangura’s curriculum vitae, to the prejudice of the Defence; (b) the report is not relevant to the AFRC case as it is mainly confĳined to research conducted in the province of Kailahun which Mrs. Bangura alleges “was the only district that the RUF had control of during the entire period of the war”; (c) the report is inaccurate and incomplete as it omits to refer to relevant sources and data for the assertions contained therein; (d) the conclusion on page 10 of the report to the efffect that “early or arranged marriages are no longer common in Sierra Leone” is grossly incorrect and is unsubstantiated; (e) the list of references used by the authors of the report is inadequate and insufffĳicient to provide a proper basis for their research; and (f) the report contains numerous and unfounded statements, interlocutory decisions – trial chamber 549 conclusions and generalisations that disqualify it from the status of expert opinion.” It is our considered view that all the above concerns are matters that go to the weight and not admissibility of the evidence, and that can adequately be tested during cross-examination. The weight to be attributed to expert evidence will be determined by the Trial Chamber not at this stage but rather at the end of the trial and in light of all the evidence adduced. We also note that in the interests of justice and a fair trial, the Defence are themselves entitled not only to cross- examine Mrs. Bangura but also to submit expert fĳindings to the contrary and to call their own expert witness or witnesses in their defence. 31. Regarding Mrs. Bangura’s qualifĳications as “an expert” or lack thereof, we adopt the accepted qualitative defĳinition that “an expert must possess relevant specialised knowledge acquired through education, experience or training in the proposed fĳield of expertise” and the defĳined role of an expert as being “to assist the Chamber to understand or determine an issue in dispute and the context in which the events took place.” We note and accept the Prosecution submissions that despite Mrs. Bangura’s educational background being in the fĳield of insurance, her extensive experience is a material factor that qualifĳies her as an expert with relevant specialised knowledge on the issue of forced marriage during the Sierra Leone conflict. We note from Mrs. Bangura’s curriculum vitae (Annex A) that as Coordinator and co-founder of the organisation known as “Campaign for Good Governance” (CGG) she has extensive experience in monitoring human rights abuses across Sierra Leone including police stations, rebel-controlled areas, and refugee camps for returning women and internally displaced persons. She also has experience in documentation of human rights violations across Sierra Leone for over fĳive years and in providing care and support to victims of domestic and sexual violence, which experience the Prosecution submits is a relevant factor in determining her expertise on the subject of “forced marriages during the Sierra Leone conflict.” We also note the acknowledgment in paragraph 1.1 of Mrs. Bangura’s report that “her testimony is based on her experience as a campaigner for women’s and civil rights in Sierra Leone, upon personal experience in dealing with women victims of forced marriages and also upon extensive secondary and primary data.” More importantly, we note and accept the Prosecution submissions that Mrs. Bangura’s testimony will “assist the Chamber to understand or determine the issues of sexual violence and forced marriages during the conflict in Sierra Leone and the context in which the events took place.” In the premises we fĳind no merit in the Defence objection to Mrs. Bangura’s qualifĳications and hold that she possesses relevant experience and that the Prosecution is entitled to call her as an expert witness and to disclose her report to the Defence pursuant to the provisions of Rule 94bis of the Rules. 32. Regarding the Defence application to exclude Mrs. Bangura’s report (Annex B) we note that this application is pre-mature as the Prosecution has not 550 part ii yet applied to tender the said report in evidence and the Defence has indicated pursuant to Rule 94bis (B) of the Rules that they intend to cross-examine Mrs. Bangura on that report. The Prosecution application was limited to leave to add Mrs. Bangura to their witness list and to formally disclose her report or statement to the Defence in discharge of their disclosure obligations under the Rules. 33. Regarding the Defence application for leave to cross-examine Ms. Christina Solomon as co-author of Mrs. Bangura’s report, we note the Defence submission that “Mrs. Bangura may not be able to answer some of their questions in cross- examination thereby necessitating Ms. Solomon’s testimony.” In our view the Defence is merely speculating as to Mrs. Bangura’s competence and ability to testify. We also note and accept the Prosecution submissions that Ms. Solomon did not co-author the said report with Mrs. Bangura but merely provided support in the compilation of the said report and that the entire report represents the opinion of Mrs. Bangura alone. More importantly, we are of the view that the Prosecution enjoys a prosecutorial latitude in the domain of the strategies it puts into place to establish its case particularly in light of the provisions of Article 15(1) of the Statute which confers on the Prosecutor the competence to act independently as a separate organ of the Special Court (within the limits and confĳines of the law and the doctrine of equality of arms). Accordingly we do not consider it to be in the interests of justice at this stage to curtail that independence by compelling the Prosecution to call Ms. Christina Solomon as their witness, at the behest of the Defence.

V. Disposition

FOR THE ABOVE REASONS THE TRIAL CHAMBER GRANTS the Prosecution application pursuant to Rule 73bis (E) of the Rules; DENIES the Defence application to exclude the expert evidence of Mrs. Zainab Hawa Bangura, and the Defence application to cross-examine Ms. Christina Solomon; NOTES that the Defence intends to cross-examine Mrs. Zainab Hawa Bangura upon her expert statement pursuant to Rule 94bis (B) of the Rules; and ORDERS THAT: (i) The Prosecution is granted leave pursuant to Rule 73bis (E) of the Rules to vary their Updated Witness List of 28 April 2005 by adding the name of Mrs. Zainab Hawa Bangura. (ii) The Prosecution is granted leave to disclose Mrs. Bangura’s report pursuant to Rule 66(A)(ii) of the Rules, to the Defence not later than Friday interlocutory decisions – trial chamber 551

12 August 2005. For the purposes of this order, The Trial Chamber hereby authorises Court Management Section to accept the Prosecution’s disclosure of this document during the Court recess and to serve it upon the defence without delay. (iii) The Prosecution shall call on Mrs. Bangura to testify only after the expiry of the month of September 2005 in order to give the Defence sufffĳicient time to prepare, unless an earlier time is agreed to by consent of the parties. Justice Teresa Doherty gives a separate concurring opinion. Done at Freetown, Sierra Leone, this 5th day of August 2005.

TRIAL CHAMBER II

Before: Judge Teresa Doherty, Presiding Judge Judge Richard Brunt Lussick Judge Julia Sebutinde Interim Registrar: Lovemore Munlo Date: 21 October 2005 PROSECUTOR Against Alex Tamba Brima Brima Bazzy Kamara Santigie Borbor Kanu (Case No.SCSL-04-16-PT)

SEPARATE AND CONCURRING OPINION OF JUSTICE DOHERTY ON PROSECUTION REQUEST FOR LEAVE TO CALL AN ADDITIONAL WITNESS PURSUANT TO RULE 73bis (E) AND JOINT DEFENCE APPLICATION TO EXCLUDE THE EXPERT EVIDENCE OF ZAINAB HAWA BANGURA OR ALTERNATIVELY TO CROSS-EXAMINE HER PURSUANT TO RULE 94bis

Office of the Prosecutor: Defence Counsel for Alex Tamba Brima: Luc Côté Kojo Graham Lesley Taylor Glenna Thompson Melissa Pack Defence Counsel for Brima Bazzy Kamara: Andrew Daniels Mohamed Pa-Momo Fofanah Defence Counsel for Santigie Borbor Kanu: Geert-Jan Alexander Knoops Abibola E. Manly-Spain 554 part ii

1. I have read the Decision and Orders of my learned colleagues of 5 August 2005 and add my reasons herewith. The pleadings leading up to that decision are detailed in the preamble of the majority decisions.

I. Submissions of the Parties

Prosecutions Motion 2. The Prosecution in efffect makes 3 applications by way of motion: a) To call an additional witness; b) To have the witness declared an expert witness on the issue of forced marriage; c) To have her Report disclosed to the Defence. 3. Prosecution explain the chronological background and the reasons why the application is made at this time notwithstanding orders on 1 April 2004 to fĳile and disclose statements and other materials and subsequent orders on 26 April 2004 and 9 February 2005 to provide an order of witnesses and witness statements. 4. They had included an expert witness, Ms. Vann, in the list of witnesses fĳiled and served in compliance with the order of 26 April 2004 but when her report was received, almost 6 months later, concluded “that one aspect of sexual violence did warrant an expert opinion [….], namely expertise focussing on the issue of forced marriage, as charged as an inhumane act in Court 9 of the Further Amended Consolidated Indictment.” Given the “extremely sensitive topic” the Prosecution argued that the Trial Chamber would be best served to hear testimony from a Sierra Leonean expert on this matter. 5. They “immediately commenced procedures” to identify and recruit such an expert but it was not until 14 February 2005, that a letter of instruction was sent to Mrs. Zainab Bangura instructing her to compile a report on the issue of forced marriage and its “long-term social, cultural, physical and psychological meanings and consequences ....” 6. The Prosecution detail Mrs. Bangura’s personal and professional qualifĳica- tions, her participation in community and political life in Sierra Leone and the non-government organizations which she promoted or worked with. They submit this will qualify Mrs. Bangura as an expert. 7. The Prosecution name particular issues to which Mrs. Bangura will testify, which include: a) The context within which forced marriage occurred during the conflict; b) The socio-cultural meaning of forced marriage during the conflict; c) The long–term social, cultural, physical and psychological consequences of forced marriage during the conflict for its victims. interlocutory decisions – trial chamber 555

8. The Prosecution further submit there will be minimal prejudice to the Defence as her report will be disclosed in full accordance with the provisions of Rules 66 and 94bis, thus giving sufffĳicient time to investigate and prepare rebuttal evidence. 9. The Prosecution refer to a decision in the case of the Prosecutor v. Sesay and others1 where Trial Chamber I of the Special Court for Sierra Leone established a test in regard the calling of additional witnesses. In that decision Trial Chamber I held: a) that the circumstances being argued to demonstrate good cause are “directly related and material to the facts in issue”; b) that the evidence to be provided by the witnesses is “relevant to determining the issues at stake and would contribute to serving and fostering the overall interest of the law and justice.” 10. The Prosecution submits the foregoing facts and submissions demonstrate good cause and that the addition of Mrs. Bangura’s name to the Witness List is in the interests of justice.

Defence Response 11. The Defence fĳiled two documents on 13 May 2005: a) A Response to the Prosecution Request for Leave to Call an Additional Witness pursuant to Rule 73bis (E); b) A notice pursuant to Rule 94bis that it does not accept Mrs. Bangura as an expert on forced marriages. 12. The Defence cites the Decision of Trial Chamber I in the case of the Prosecutor v. Sesay and others, stating that four requirements must fulfĳilled before an additional witness can be called. They deal with each of these criteria. 13. Firstly, Defence submits that the Prosecution has failed to indicate that its reasons for bringing this witness late in the proceedings “are directly related and material to the facts in issue” and therefore the requirements of Rule 73bis have not been fulfĳilled. 14. Secondly, the Defence submits that the Prosecution only state that the evidence is “highly relevant and important” but fails to explain why the testimony is relevant. 15. Thirdly, they submit that the calling of the witness is prejudicial as the Prosecution could have informed the Defence in February 2005 of their intention to call Mrs. Bangura.

1 Prosecutor v. Sesay, Kallon, Gbao, Case No. SCSL-04-15-T, Decision on Prosecution Request for Leave to Call Additional Witnesses and Disclose Additional Witness Statements, 11 February 2005. 556 part ii

16. Fourthly, the Defence again states that the Prosecution could have informed the Defence in February 2005 of the intention to call Mrs. Bangura, that is before the trial started, and submit that notice now contravenes their duty to disclose. In this regard they refer to a decision in the Prosecutor v. Norman and others Case which held “that the Prosecution should not be allowed to surprise the Defence with additional witnesses and should fulfĳil in good faith its disclosure obligations.”2 Further there is no explanation why it took four months to select the witness. 17. The Defence seek to have the Prosecution application denied and her report not be admitted in evidence. In their Notice, the Defence announced pursuant to Rule 94bis (B) that it:

wishes to notify the Trial Chamber that it does not accept the proposed expert witness statement, and in the alternative, if the Trial Chamber would fĳind that the statement be admitted into evidence, the Defence indicates that it wishes to cross- examine the proposed witness. 18. In support of this application they submit that Mrs. Bangura lacks relevant expertise as her curriculum vitae shows she is a professional insurer although the Prosecution itself stated that “the testimony of this Sierra Leonean expert […] would truly be able to inform the Court of the long-term social, cultural, physical and psychological meanings and consequences of forced marriage.” 19. Defence submit Mrs. Bangura is not qualifĳied in any of the fĳields of sociology, anthropology, psychology or medicine to enable her to attest on the information the Prosecution wishes to adduce. Further, her roles and experience in government, women’s development etc., are not “closely connected to the issue of forced marriages.” 20. The Defence then objects to the admission of the report into evidence as a) its title suggests the witness has particular knowledge of the RUF and AFRC organizations, which is not elaborated on anywhere in the Prosecution Rule 73bis Request; b) the research is mainly confĳined to research done in the province of Kailahun; c) the report is inaccurate and incomplete, as it omits reference to sources, data and does not provide sources for statements on customary marriage;

2 Prosecutor v. Norman, Fofana, Kondewa, Case No. SCSL-2004-14-T, Decision on Prosecution Request for Leave to Call Additional Expert Witness Dr. William Haglund, 1 October 2004, para. 15. interlocutory decisions – trial chamber 557

d) the list of references used is “insufffĳicient to provide a proper basis for [the] research,” and it contains “numerous […] unfounded general statements.” 21. In the alternative, the Defence notifĳies the Trial Chamber of its wish to cross-examine Mrs. Bangura and her co-author as Mrs. Bangura, they submit, might be “unable to answer all questions regarding this report or the underlying research.”

Prosecutions Joint Reply 22. In a joint reply to both the Defence Response and Defence Notice the Prosecution re-state the chronology and acknowledge their obligations under Rule 66(A)(ii) of the Rules. They state that “forced marriage as an inhumane act under Article 2(i) of the Statute, is a novel legal charge. The complexity and sensitivity of the issue renders an expert opinion both material and relevant.” 23. Prosecution submits that they took “all measures necessary and within its means to identify an expert and to obtain the said report,” which, they submit, they did “expeditiously.” 24. Prosecution submit that Mrs. Bangura’s curriculum vitae demonstrates that she can be qualifĳied as an expert. Further, that the Defence has not specifĳically identifĳied what prejudice the accused will sufffer by calling an additional witness. In reply to the Defence objection that they failed to inform the Defence in February 2005 of its intention to call Mrs. Bangura, the Prosecution re-state that they had merely identifĳied her as a candidate and had giving an instruction. They are not under any obligation to reveal such research. The legal obligation is to disclose evidence and that they did so as soon as it was available. Further they argue that it is in the interests of justice that the witness be called and rely on a ICTY Decision in the Delalic et al. Case.3 25. To the Joint Defence Notice the Prosecution respond that it is unfair for Defence to rely on Mrs. Bangura’s practice in the insurance industry without regard for her other experience, work with national and international organizations and exposure to the “issues surrounding forced marriage and sexual violence generally,” to submit she lacks expertise. They further rely on the Prosecutor v. Bizimungu et al.,4 that the expert must have acquired relevant specialized knowledge through education, experience or training and stress that Mrs. Bangura has acquired relevant specialization through experience.

3 Prosecutor v. Delalic et al., Case No. IT-96-21-T, Decision on Confĳidential Motion to seek Leave to call Additional Witnesses, 4 September 1997. 4 Prosecutor v. Bizimungu et al., Case No. ICTR-99-50-T, Offfĳicial Transcript, 2 May 2005. 558 part ii

26. In relation to the Defence objection on content and methodology of the report, the Prosecution respond that this should be addressed in cross- examination instead of in the pleadings. They submit that the Defence did not comply with Rule 94bis by raising these issues. They further object to the calling of Ms. Solomon, as she is not a “co-author.” 27. The Defence fĳiled a Reply to the “second part of the Prosecution Combined Reply” viz that part dealing with the Defence Notice to inform the Trial Chamber “of its position vis-a-viz the Proposed Expert Witness Mrs. Bangura pursuant to Rule 94bis.” 28. Defence object that the Prosecution Combined Reply was not properly formatted and state that Rule 7(C) requires separate documents. They submit that the part of the Prosecution Combined Reply dealing with their motion should be disregarded. Alternatively, on the merits of the Response the Defence submits the Prosecution have misconstrued their arguments concerning Mrs. Bangura’s curriculum vitae. Whilst experience may qualify a person to be an expert, it does not apply as Mrs. Bangura’s experience does not qualify her as an expert nor can her knowledge on the subject be deduced from her curriculum vitae. They submit the subject of forced marriages is “highly controversial and contested in a legal sense” and cannot be “deemed to fall within the broad and general range of women’s issues in conflict situations, good governance, democratization processes, and other topics the proposed witness has experience in.” 29. Defence re-states its objections that there is a lack of authority to support the views stated in Mrs. Bangura’s report.

II. Deliberations

Calling of an Additional Witness 30. The application is made pursuant to Rule 73bis (E) which provides: After the commencement of the Trial, the Prosecutor may, if he considers it to be in the interests of justice, move the Trial Chamber for leave to reinstate the list of witnesses or to vary his decision as to which witnesses are to be called. 31. The Prosecutor must therefore show that it in the interests of the justice that he may vary the list of witnesses to be called before leave can be granted by the Trial Chamber. 32. In their submissions the Prosecution relies on the Decision in the Prosecutor v. Norman et al. Case5 referring to each of the four criteria enunciated therein. The Defence traverse these in seriatim.

5 Prosecutor v. Norman, Fofana, Kondewa, Case No. SCSL-2004-14-T, Decision on Prosecution Request for Leave to Call additional Witnesses, 29 July 2004. interlocutory decisions – trial chamber 559

33. I note that Rule 73bis (E) does not use the term “good cause.” That term is used in Rule 66(A)(ii) which obliges the Prosecution to continuously disclose copies of all additional Prosecution witnesses on which it intends to rely and sets a time limit for such disclosure, unless the Trial Chamber varies that time limit on “good cause” being shown. 34. The Prosecutor must consider it in the interests of justice to vary his list of witnesses, and, it must follow, he must convince the Trial Chamber that it is, indeed, in the interests of justice to give leave to vary that list. 35. Rule 73bis (E) does not provide that the Prosecutor must prove leave is both justifĳied by “good cause” and “in the interests of justice.” In this regard, I must respectfully disagree with my learned colleagues of Trial Chamber I and their fĳind- ings in the Prosecutor v. Norman and the majority decision. The Prosecutor will also have to conform with Rule 66(A)(ii) and may need to show good cause to vary the notice period for disclosure of additional prosecution witnesses. Hence the Prosecutor may well eventually have to show both, but in my view for the purposes of Rule 73bis (E), he need only show the calling of the witness is in “the interests of justice.” 36. The “interests of justice” has been considered in other International Tribunals. The ICTR has held that the “interests of justice” shall be assessed in the light of the following elements:

[t]he materiality of the testimony, the complexity of the case, prejudice to the Defence, including elements of surprise, on-going investigations, replacements and corroboration of evidence […], the presentation of the best available evidence […] balanced against the right of the accused to have adequate time and facilities to prepare his Defence and his right to be tried without undue delay.6 And further

that the relevance of the evidence that could be brought by the Expert Witness overwhelms the potential prejudice of any delays caused by the time frame for the disclosure of the Expert Report and his appearance before the Trial Chamber.7 37. In their consideration, cited above, the ICTR had followed Prosecutor v. Nahimana, which held the fĳinal decision whether it is in the interests of justice to allow the Prosecution to vary its list of witnesses rests with the Chamber and

6 Prosecutor v. Nyiramasuhuko et al., Case No. ICTR-98-42-T, Decision on Prosecution’s Motion for Leave to add a Handwriting Expert to his Witness List, 14 October 2004, para. 11 citing Prosecutor v. Nahimana, Ngeze, Barayagwiza, Case No. ICTR-99-52-T, Decision on the Prosecutor’s Oral Motion for Leave to Amend the List of Selected Witnesses, 26 June 2001. 7 Prosecutor v. Nyiramasuhuko et al., Case No. ICTR-98-42-T, Decision on Prosecution’s Motion for Leave to add a Handwriting Expert to his Witness List, 14 October 2004, para. 18. 560 part ii

“such interest must not prejudice the principle that the accused has the right to trial without undue delay.”8 38. The Decision in the Case of the Prosecutor v. Nahimana referred to the purpose of Rule 66 and held it was to give Defence “sufffĳicient notice and adequate time” and at the same time to ensure Prosecution evidence is not excluded merely on procedural grounds.9 The Chamber made clear that it was when a Trial Chamber has granted leave under Rule 73bis that “statements […] will form part of the case against an Accused.”10 It is at that juncture the issue of “good cause” under Rule 66 becomes pertinent. “Good cause” and “interests of justice” are not, in my view, conjunctive when considering leave to vary pursuant to Rule 73bis. 39. The issue whether “forced marriages” constitute an inhumane act has not previously been canvassed in any of the International Tribunals. The term has not been defĳined in the Statute, the Geneva Conventions or in any precedent of other Tribunals and the Prosecution is obliged to show the case the accused must answer. 40. I accept the Prosecution submission that this is an extremely sensitive topic, particularly given its distinct social and cultural consequences and its uniqueness to the Sierra Leone conflict, the Trial Chamber would be best served to hear testimony from a Sierra Leonean expert on the matter. 41. Given that there have been no recognised experts who have appeared in other Tribunals on the issue of forced marriages, I also accept that the Prosecution would have been obliged to fĳind a witness competent to give expert evidence. Research to identify such a person and then have that person prepare a report would take time. I have no reason to dispute Prosecution submission that they acted with due diligence. I consider the sensitivity of the topic and lack of precedent on it contribute to the complexity of the case. 42. I adopt with respect the ratio of ICTY in the Prosecutor v. Delalic et al. stating that: The Trial Chamber is enjoined to utilise all its powers to facilitate the truth fĳinding process in the impartial adjudication of the matter between the parties. It is thus important to adopt a flexible approach when considering the management of witnesses. Where the testimony of a witness is important to the Prosecution or the Defence, the trial Chamber will ensure that such witness is heard, subject, naturally, to the limits prescribed in the

8 Prosecutor v. Nahimana et al., Case No. ICTR-99-52-T, Decision on the Prosecutor’s Oral Motion for Leave to Amend the List of Selected Witnesses, 26 June 2001, para. 17. 9 Prosecutor v. Nahimana et al., Case No. ICTR-99-52-T, Decision on the Prosecutor’s Oral Motion for Leave to Amend the List of Selected Witnesses, 26 June 2001. 10 Prosecutor v. Nahimana et al., Case No. ICTR-99-52-T, Decision on the Prosecutor’s Oral Motion for Leave to Amend the List of Selected Witnesses, 26 June 2001, para. 19. interlocutory decisions – trial chamber 561

Statute of the International Tribunal (“the Statute”) and Rules. In the present case, these two particular witnesses, 6 and 7, are deemed material to the Prosecution and it would be contrary to the interests of justice to exclude their testimony. The rights of the Accused enunciated in Article 21 of the Statute are in no sense afffected by the adoption of such a flexible approach.11 43. I do not consider the calling of Mrs. Bangura will unfairly prejudice the rights of the accused to a fair and expeditious trial. The testimony is relevant to the case the accused must answer and it is in the interest of justice that they know that case in detail. 44. I consider it in the interest of justice that the Prosecution vary the list of witnesses to include Mrs. Bangura as a witness.

Disclosure of the Report Pursuant to Rule 66(A)(ii) 45. Both Prosecution and Defence address the obligations of the Prosecution to continuously disclose copies of all additional Prosecution witnesses, “not later than 60 days before the date for trial “unless otherwise ordered “upon good cause being shown.” 46. As I have noted above the Prosecution must show “good cause” to vary the notice period and this is an obligation which is separate to the obligation imposed by Rule 73bis (E). This Rule has been considered by this Chamber in the Decision on Joint Defence Motion on Disclosure of all Original Witness Statements, Interview Notes and Investigator’s Notes pursuant to Rules 66 and/or 68, dated 4 May 2005.12 47. The Prosecution has explained the reasons why Mrs. Bangura was not iden- tifĳied earlier and the time taken to prepare her report. The Defence submit that the Prosecution fails to indicate that the reasons why is bringing forward this witness at so late a stage in the proceedings against the Accused, are directly related and material to the facts in issue, although it formulated this criterion in its own motion under para. 9 thereof. 48. I agree, with respect, with the majority herein and with the views of Trial Chamber I in the Case of the Prosecutor v. Sesay et al.:

11 Prosecutor v. Delalic et al., Case No. IT-96-21-T, Decision on Confĳidential Motion to seek Leave to call Additional Witnesses, 4 September 1997, para. 7. 12 Prosecutor v. Brima, Kamara, Kanu, Case No. SCSL-2004-16-T, Decision on Joint Defence Motion on Disclosure of all Original Witness Statements, Interview Notes and Investigator’s Notes pursuant to Rules 66 and/or 68, 4 May 2005. 562 part ii

In the absence of any evidence to the contrary, this Chamber fĳinds the explanation put forward by the Prosecution as to the difffĳiculties encountered in securing the cooperation of the proposed expert witness and the fĳinal preparation of her report acceptable.13 49. I have no cause to dispute that the Prosecutions acted timeously and with due diligence in identifying the witness and having the report compiled. I concur with the majority opinion and fĳind that the proposed evidence seems relevant for the Prosecution’s case.

Defence Objection that Mrs. Bangura is not an Expert 50. The Defence submits that Mrs. Bangura is not an expert witness on forced marriage for the various reasons outlined above. The Prosecution respond giving Mrs. Bangura’s experience and “extensive” work “within many aspects of Sierra Leonean civil society.” It is common ground between both Prosecution and Defence that experience may qualify a witness as an expert. As held in the Prosecutor v. Bizimungu et al.: The role of an expert is to assist the Chamber in understanding the context in which the events took place. The expert must possess a relevant specialised knowledge acquired through education, experience, or training in his proposed fĳield of expertise.14 51. The ICTR has ruled in the Prosecutor v. Bagosora that the test for admission is “whether the specialized knowledge possessed by the expert, applied to the evidence which is the foundation of opinion, may assist the Chamber in understanding the evidence.”15 52. For the report of an expert to be admissible four core elements must be fulfĳilled: a) The subject matter must be proper topic for expert evidence; b) The evidence must be capable of assisting the Trial Chamber to determine the issue in dispute; c) The person purporting to be an expert must have the necessary qualifĳica- tions and used proper methods in their research; d) The person purporting to be an expert must be independent and impartial. I will deal with each element individually. 53. Firstly, Is the subject matter must a proper topic for expert evidence? Expert evidence must be fact and information outside the ordinary experience and

13 Prosecutor v. Sesay, Kallon, Gbao, Case No. SCSL-2004-16-T, Decision on Prosecution Request for Leave to Call an Additional Expert Witness, 10 June 2005, para. 11. 14 Prosecutor v. Bizimungu et al., Case No. ICTR-99-50-T, Offfĳicial Transcript, 2 May 2005. 15 Prosecutor v. Bagosora et al., Case No. ICTR-41-98-T, Offfĳicial Transcript, 4 September 2002, at 6. interlocutory decisions – trial chamber 563 knowledge of the Trial Chamber. It is for the Trial Chamber to make fĳindings of fact, the expert is to assist, not take over, that role.16 The type of evidence an expert may give to the Trial Chamber is wide ranging and, as has been shown in Prosecutor v. Akayesu in ICTR, may include expert evidence on social and cultural traditions. 54. I consider the social and cultural attitudes to customary marriage and whether there was a phenomenon of “forced marriage” and what constituted forced marriage a proper topic for expert evidence. 55. Secondly, is the evidence capable of assisting the Trial Chamber to determine the issue in dispute? An expert witness must not offfer an opinion on the “ultimate issue” in a case, that is for the Trial Chamber to consider and determine. This was applied and held by the ICTY Trial Chamber in the Prosecutor v. Kordic and Cerkez when it excluded expert comment on command structures involving the accused as this was a central issue in the case which the Trial Chamber had to decide.17 In that case, also, the Trial Chamber held the evidence was not based on the experts own observations and/or research but press reports and such “secondary” materials and it would not assist the Court. 56. In the current case the expert witness does not address issues of law, as fĳinal decisions of law are matters, ultimately for the Trial Chamber. This does not preclude an expert witness giving evidence on the defĳinition of certain legal terms18 and, in my view, an expert presenting evidence of what is the customary law e.g. the customary law relating to marriage. 57. Thirdly, does the person purporting to be an expert have the necessary quali- fĳications and did that person use proper methods in the research? It is on this leg that the Defence base most of their argument. They refer to the background quali- fĳications of Mrs. Bangura, and in their opinion the restricted nature of her research and its failure to refer to sources and data. 58. Similar arguments were presented in the ICTY case of the Prosecutor v. Tadic. The Trial Chamber distinguished the diffference of presenting evidence to jurors and to judges and held the Trial Chamber would give it “appropriate weight.”19 The expert evidence in that case involved interviews with witnesses

16 For example in the Prosecutor v. Kordic and Cerkez references by the witnesses to the accused were excluded. 17 Prosecutor v. Kordic and Cerkez, Case No. IT-95-14/2, Transcripts, 28 January 2000, p. 13306, 13307. 18 Prosecutor v. Delalic et al., ICTY IT-96-21-T, Order on the Prosecution Motion for Leave to Call Additional Expert Witnesses, 13 November 1997. 19 Prosecutor v. Tadic, Case No. IT-94-1-T, Offfĳicial Transcript, 20 May 1996, at 923. 564 part ii and summaries of those interviews. In contrast the expert evidence in Prosecutor v. Akayesu was more limited. The witness testifĳied on the impetus and results of the conflict.20 In the Prosecution v. Bagosora et al. the Trial Chamber held that “[t]he evidence shall be assumed to be reliable and credible unless convincing arguments have been raised that it is obviously unbelievable, such that no reasonable trier of fact could rely upon it.”21 59. The Defence refer to Mrs. Bangura’s lack of qualifĳications in such fĳields as sociology and anthropology while they accept that experience can be a basis to acknowledge a person as an expert. Mrs. Bangura may have had an early professional career in insurance but is clear she has worked widely in the fĳield of gender development, women’s rights and has travelled widely and been exposed to facts and opinion which qualify her to undertake the research and formulate views from that research. The methodology adopted is set out in her report. 60. If, as Defence submit, it is too restricted in its area then that can be a matter for cross-examination and submission on weight. It is not a reason for rejecting the report ab initio. 61. Fourthly, is the expert independent and impartial? The role of the expert is to enlighten the Judges on specifĳic issues requiring special knowledge in a specifĳic fĳield,22 the expert difffers from a witness of fact who is called to attest on the accused’s involvement in any alleged offfence. An expert does not take the side of any party. The expert is to assist the Tribunal of fact. 62. I emphasize this aspect of the expert’s role, and note neither Defence nor Prosecution allege or suggest that Mrs. Bangura will do otherwise than present researched facts and conclusions based on that research. 63. I am therefore satisfĳied that Mrs. Bangura’s meets the four pronged test outlined above and in particular that (1) her background of experience in gender development and its related fĳields qualifĳies her to be an expert; (2) research methodology is sufffĳiciently detailed to conclude that her report is adequate as an expert report and I would overrule the Defence objections to her being called as an expert witness.

20 Expert Witness Des Forges mainly testifĳied on such issues, see Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Judgement, 2 September 1998. 21 Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T, Decision on Motions for Judgement of Acquittal, 2 February 2005, paras. 10-11. 22 Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Decision on a Defence Motion for the Appearance of an Accused as an Expert Witness, 9 March 1998. interlocutory decisions – trial chamber 565

Defence Application for Cross-Examination of the Co-Author of the Report 64. The Defence put the Trial Chamber on notice that they intend to cross- examine the co-author of the report. 65. Rule 94bis (B) and (C) provide: (B) Within 14 days of fĳiling of the statement of the expert witness, the opposing party shall fĳile a notice to the Trial Chamber whether: 1. It accepts the expert witness statement; or 2. 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. 66. The practical implementation of Rule 94bis (C) depends on the Defence accepting the statement of the expert witness – if they do, then the Trial Chamber has a power to admit the report. Clearly, in the instant case, the Defence do not accept the report. Hence the provisions of Rule 94(B)(ii) apply and they have a right, on giving notice, to cross-examine the expert witness. 67. The right is to cross-examine the expert witness only. Rule 94(B)(ii) does not extend to cross-examine any other person, be they co-author or interviewee. For that reason, the relief sought by the Defence must fail. I agree with the Defence in their Joint Defence Reply to Prosecution Combined Reply when they submit the Prosecution Reply is not properly formatted. The Prosecution, to conform with Rule 7(C) should have fĳiled two separate documents by way of a Reply and a Response. However, failure to comply with this procedure is not in itself, grounds for disregarding the Combined Reply. FOR THE FORGOING REASONS I concur with the orders of the majority decision herein. Done at Freetown, Sierra Leone, this 21st day of October 2005.

TRIAL CHAMBER II

DECISION ON PROSECUTION REQUEST FOR LEAVE TO CALL AN ADDITIONAL WITNESS PURSUANT TO RULE 73bis (E)

TRIAL CHAMBER II (“Trial Chamber”) of the Special Court for Sierra Leone (“Special Court”), composed of Justice Teresa Doherty, presiding, Justice Richard Lussick and Justice Julia Sebutinde; SEISED of the Prosecution Request for Leave to Call an Additional Witness Pursuant to Rule 73bis (E), fĳiled on 6 July 2005; (“Motion”); NOTING the Kanu-Defence Response to Prosecution Request for Leave to Call an Additional Witness Pursuant to Rule 73bis (E), fĳiled on 8 July 2005; NOTING the Brima-Defence Response to Prosecution Request for Leave to Call an Additional Witness Pursuant to Rule 73bis (E), fĳiled on 11 July 2005; NOTING the Joint Reply to Kanu and Brima-Defence Response to Prosecution Request for Leave to Call an Additional Witness Pursuant to Rule 73bis (E), fĳiled on 13 July 2005; CONSIDERING the Order to the Prosecution to File Disclosure Materials and Other Materials in Preparation for the Commencement of Trial, issued by Trial Chamber 1 on 1 April 2004 and the subsequent fĳiling of a Witness List by the Prosecution on 26 April 2004; CONSIDERING FURTHER the Order to Prosecution to Provide Order of Wit- nesses and Witness Statements, issued by Trial Chamber 11 on 9 February 2005 and the subsequent fĳiling of a Revised Witness List on 21 February 2005 by the Prosecution which has been updated on 28 April 2005 and renewed on 3 August 2005; HEREBY DECIDES AS FOLLOWS based solely on the written submissions of the parties pursuant to Rule 73(A) of the Rules of Procedure and Evidence of the Special Court (“Rules”).

III. Submissions of the Parties

4. The Prosecution submits that the Defence will sufffer no unfair prejudice if the witness is allowed to be called. It argues that since the issue of identity was raised by the Defence, it must therefore expect that the Prosecution will bring evidence to establish the diffferent names by which the Accused were known. Additionally, the evidence of the proposed witness will be of short compass and his statement will be disclosed in sufffĳicient time to allow the Defence ample opportunity to prepare cross-examination.

5. The Prosecution states that it had hoped that the issue of identifĳication could have been resolved in a more expeditious manner than by calling an overseas witness. However, the unanticipated absence of the Accused from the courtroom during the evidence of witnesses who could have identifĳied them has made an in-court identifĳication impossible.

6. Furthermore, the Prosecution submits that the issues of the time which it has known of the proposed evidence and due diligence have little weight when compared with the relevance and materiality of that evidence to facts in issue, the absence of prejudice to the Accused and the overall interests of justice.

Defence – Kanu 7. The Kanu Defence submits that the Prosecution have not established “good cause,” that the calling of the additional witness would not be “in the interests of justice,” and that the Prosecution Request should therefore be denied.

8. The Kanu Defence points out that the additional witness once worked for the Offfĳice of the Prosecution and submits that it is not in the interests of justice to call a witness who is a member of one of the parties to the case.

9. It submits that even if it were to be established that Kanu could be afffĳiliated with the code name “55”, this would not be conclusive evidence that Kanu was the “55” who committed certain crimes and held a particular position. Therefore, the Prosecution has failed to show that the circumstances being argued to show good cause are directly related and material to the facts in issue.

10. The Kanu Defence further submits that the Prosecution can only call additional witnesses on the basis of new evidence, and the fact that Kanu was, amongst others, referred to as “55” is not “new evidence,” since he is referred to as such in the indictment.

11. It is also submitted that the evidence of the proposed witness could have been made available at an earlier point in time and that the Prosecution has not exercised due diligence in bringing it forward. 570 part ii

12. The Kanu Defence maintains that the Prosecution has failed to establish any of the criteria for the calling of additional witnesses established by Trial Chamber 1 in Prosecutor v. Sesay et al.1

Defence – Brima 13. The Brima Defence associates itself, mutatis mutandi, with the legal arguments and submissions made by the Kanu Defence.

Joint Prosecution Reply 14. The Prosecution argues that the previous employment of the proposed witness does not render him “one of the parties to the case.” Further, the proposed witness is being called in his capacity as a former Commanding Offfĳicer of the Republic of Sierra Leone Armed Forces (RSLAF) Joint Provost Unit as part of the International Military Advisory and Training Team (IMATT), and not as a former employee of the Offfĳice of the Prosecutor. 15. The Prosecution submits that the reason for calling the proposed witness is to adduce evidence of interactions between him and the fĳirst and third Accused prior to their arrest, and also evidence as to the origin of the names “55” and “Gullit.” This evidence remains relevant even though the real issue of mistaken identity as asserted by the Kanu Defence is that other people were or could have been referred to as “55”. 16. The Prosecution says that the proposed evidence is relevant because its case is that the code name “55” applied exclusively to Kanu and that Brima is also known as “Gullit.” Given the nature of this evidence, a dock-identifĳication is unnecessary. 17. It says further that it is not the Prosecution case that the evidence was wholly new. Also, it does not deny that it has had the information in its possession for some time. 18. Finally, the Prosecution submits that, where the Defence will sufffer no prejudice and the Court will benefĳit from an enhanced understanding of the jungle or code name phenomenon and its applicability to Kanu and Brima, it would be in the interests of justice to grant the Prosecution’s Request.

II. Applicable Law

19. Previous decisions of Trial Chamber I have dealt with the guiding principle for this kind of application, namely, that the Prosecution must demonstrate that

1 Prosecutor v. Sesay, Kallon, Gbao, Case No. SCSL-15-T, Decision on Prosecution Request for Leave to Call an Additional Expert Witness, 10 June 2005. interlocutory decisions – trial chamber 571 such requests are justifĳied by “good cause” and are in the “interests of justice.”2 More recent decisions of Trial Chamber I have elaborated on the considerations to be taken into account in assessing these criteria.3 20. The applicable law has now been reiterated by this Trial Chamber in its decision of even date, Prosecutor v. Alex Tamba Brima et al., Decision on Prosecution Request For Leave To Call An Additional Witness (Zainab Hawa Bangura) Pursuant To Rule 73bis (E) And On Joint Defence Notice To Inform The Trial Chamber Of Its Position Vis-à-vis The Proposed Expert Witness (Mrs. Bangura) Pursuant to Rule 94bis, dated 5 August 2005. The law relating to the calling of an additional witness pursuant to Rule 73bis (E) as enunciated in that decision applies equally to the present decision.

III. The Merits of the Application

21. On the question of “good cause,” the Prosecution explains that its reason for wishing to call the additional witness results from the Accused absenting themselves from the courtroom during the evidence of witnesses who could have iden- tifĳied the fĳirst Accused as “Gullit” and the third Accused as “55”. According to the Prosecution, the absence of the Accused at such times was unexpected and unpredictable and has made an in-court identifĳication impossible, so that the Prosecution now seeks to prove identity by other means. We accept this as a reasonable explanation, since we have observed the absence of the Accused from Court on many occasions when Prosecution witnesses were giving evidence. 22. In considering the “interests of justice,” we note that the allegations in relation to identity are certainly not new. We also note that identifĳication was raised as an issue in the Defence Pre-Trial briefs and that it still remains an issue. The evidence of the proposed witness is obviously relevant to that issue and, if accepted, will assist the Prosecution in discharging its onus of proving guilt beyond a reasonable doubt. 23. We note further the Prosecution’s undertaking that the evidence of the propose witness will be of short compass and that his statement will be disclosed in

2 See Prosecutor v. Sesay et al., Decision on Prosecution Request for Leave to Call Additional Witnesses, 11 February 2005; Prosecutor v. Norman et al., Decision on Prosecution Request for Leave to Call Additional Witnesses, 29 July 2004; Prosecutor v. Sesay et al., Decision on Prosecution Request for Leave to Call an Additional Expert Witness, 10 June 2005; see also ICTR cases Prosecutor v. Nahimana, Decision on the Prosecutor’s Oral Motion for Leave to Amend the List of Selected Witnesses, 26 June 2001; Prosecutor v. Nyiramasuhuko et al., Decision on Prosecution’s Motion for Leave to Add a Handwriting Expert to His Witness List, 14 October 2004. 3 Prosecutor v. Sesay et al., Decision on Prosecution Request for Leave to Call Additional Witnesses and Disclose Additional Witness Statements, 11 February 2005; Prosecutor v. Sesay et al., Decision on Prosecution Request for Leave to Call an Additional Expert Witness, 10 June 2005. 572 part ii ample time for the Defence to prepare its cross-examination. Given the apparently limited scope of the proposed testimony, it does not appear to us that any such preparation would be likely to cause undue delay to the trial. 24. We fĳind entirely without merit the Defence argument that the Accused will sufffer unfair prejudice because of the fact that the proposed witness was once employed by the Prosecution. No rule of law has been brought to our attention that would entitle us to fĳind otherwise.4 Under Rule 89(C), a Chamber may admit any relevant evidence. Additionally, we note that the proposed witness will be called to give evidence which was acquired during his service with the Republic of Sierra Leone Armed Forces, not from his service with the Offfĳice of the Prosecutor. 25. Although the Rules do not defĳine the term “interests of justice,” we agree with the opinion of the ICTR “that it refers to a discretionary standard applicable in determining a matter given the particularity of the case.”5 The Prosecution concedes that it has known of the evidence for some time and that it is not wholly new evidence. However, in the particular circumstances of the present case, we do not consider that those facts disentitle the Prosecution to succeed in its application, nor do they provide the Defence with any ground to claim injustice. We accept that the need to call the additional witness only became apparent after the unexpected emergence of certain events in the trial, viz. the Accused absenting themselves. 26. Accordingly, we fĳind that good cause has been shown by the Prosecution and that it is in the interests of justice to add Lt. Col. John Petrie to its Witness List.

IV. Disposition

FOR THE ABOVE REASONS THE CHAMBER GRANTS the Motion to add Lt. Col. John Petrie to the Witness List and ORDERS the Prosecution to disclose to the Defence the statement of Lt. Col. John Petrie pursuant to Rule 66(A)(ii) not later than Friday 12 August 2005;

4 In the ICTY case Prosecutor v. Radoslav Brdanin, Decision on Prosecution’s Submission of Statement of Expert Witness Ewan Brown, the Trial Chamber held that, in the case of expert witnesses, “the mere fact that an expert witness is employed by or paid by a party does not disqualify him or her from testifying as an expert witness”; In Prosecutor v. Sesay et al., SCSL-2004-15-T, transcripts, 28.4.2005, pp. 2-38, Trial Chamber 1 called a former Prosecution investigator to testify. 5 See The Prosecutor v. Nahimana et al., Decision on the Prosecutor’s Oral Motion for Leave to Amend the List of Selected Witnesses, dated 26 June 2001, at paragraph 19. interlocutory decisions – trial chamber 573

FURTHER ORDERS the Court Management Section to accept the Prosecution’s disclosure of this document during the Court recess and to ensure that it is served on the Defence without delay. Done at Freetown this 5th day of August, 2005.

TRIAL CHAMBER II

Before: Judge Teresa Doherty, Presiding Judge Judge Richard Brunt Lussick Judge Julia Sebutinde Registrar: Robin Vincent Date: 5 August 2005 PROSECUTOR Against Alex Tamba Brima Brima Bazzy Kamara Santigie Borbor Kanu (Case No.SCSL-04-16-PT)

DECISION ON BRIMA-KAMARA APPLICATION FOR LEAVE TO APPEAL FROM DECISION ON THE RE-APPOINTMENT OF KEVIN METZGER AND WILBERT HARRIS AS LEAD COUNSEL

First Respondent: Defence Counsel for Alex Tamba Brima: Registrar Kojo Graham Glenna Thompson Second Respondent: Defence Counsel for Brima Bazzy Kamara: Principal Defender Andrew Daniels Pa Momo Fofanah 576 part ii

TRIAL CHAMBER II (“Trial Chamber”) of the Special Court for Sierra Leone (“Special Court”), composed of Judge Teresa Doherty, presiding, Judge Richard Lussick and Judge Julia Sebutinde; SEISED of the Brima-Kamara Application For Leave to Appeal from Decision on the Extremely Urgent Confĳidential Joint Motion for Re-Appointment of Kevin Metzger and Wilbert Harris as Lead Counsel for Alex Tamba Brima and Brima Bazzy Kamara and Decision on Cross Motion by the Deputy Principal Defender to Trial Chamber II for Clarifĳication of its Oral Order of 12 May 2005, fĳiled 14 July 2005 (“the Motion”); CONSIDERING the Response, fĳiled on 22 July 2005 by the Principal Defender (“the Second Respondent’s Response”); CONSIDERING the Response, fĳiled by the Registrar on 22 July 2005 (“the First Respondent’s Response”); CONSIDERING the Defence’s consolidated Reply to both Responses’s (“the Reply”); BEING MINDFUL of the “Decision on the Extremely Urgent Confĳidential Joint Motion for Re-Appointment of Kevin Metzger and Wilbert Harris as Lead Counsel for Alex Tamba Brima and Brima Bazzy Kamara and Decision on Cross Motion by Deputy Principal Defender to Trial Chamber II for Clarifĳication of its Oral Order of 12 May 2005,” dated 9 June 2005 (“the impugned Decision”); BEING MINDFUL FURTHER of the “Dissenting Opinion of the Hon. Justice Julia Sebutinde from the Majority Decision on the Extremely Urgent Confĳidential Joint Motion for Re-Appointment of Kevin Metzger and Wilbert Harris as Lead Counsel for Alex Tamba Brima and Brima Bazzy Kamara, and Decision on Cross Motion by the Deputy Principal Defender to Trial Chamber II for Clarifĳication of its Oral Order of 12 May 2005,” dated 11 July 2005 (“the dissenting Opinion”); NOTING that Rule 73(B) of the Rules provides that Decisions rendered on such motions are without interlocutory appeal. However, in exceptional circumstances and to avoid irreparable prejudice to a party, the Trial Chamber may give leave to appeal. Such leave should be sought within 3 days of the decision and shall not operate as stay of proceedings unless the Trial Chamber so orders. NOTING therefore the general rule that decisions are without interlocutory appeal, and that only if the conjunctive conditions of exceptional circumstances and irreparable prejudice to the accused in Rule 73(B) are satisfĳied, a Trial Chamber may grant leave to interlocutory appeal; CONSIDERING FURTHER that the Appeals Chamber has recently ruled that “In this Court, the procedural assumption is that trials will continue to their conclusion without delay or diversion caused by interlocutory appeals on procedural matters, and interlocutory decisions – trial chamber 577

that any errors which afffect the fĳinal judgment will be corrected in due course by this Chamber on appeal.”1 NOTING therefore that the rationale behind the restrictive nature of Rule 73(B) is that the proceedings before the Special Court should not be heavily encumbered and consequently unduly delayed by interlocutory appeals;2 NOTING AND APPLYING therefore the restrictive application of Rule 73(B) as established by Trial Chamber I stating that [Rule 73(B)] involves a high threshold that must be met before this Chamber can exercise its discretion to grant leave to appeal. The two limbs of the test are clearly conjunctive, not disjunctive: in other words, they must both be satisfĳied;3 CONSIDERING HOWEVER that in the present case the very nature of the application satisfĳies the conjunctive test of “exceptional circumstances” and “irreparable prejudice” by Rule 73(B) since it concerns a fundamental right enshrined in Article 17(4) of the Statute; FOR THE FORGOING REASONS TRIAL CHAMBER ALLOWS THE APPLICATION and grants the Defence leave to fĳile an interlocutory appeal against the impugned Decision. Justice Lussick will give a Separate and Concurring Opinion and Justice Doherty appends a personal comment to this Decision.

COMMENT OF JUSTICE DOHERTY Having read the Dissenting Opinion of the Hon. Justice Sebutinde from the Majority Decision on the Extremely Urgent Confĳidential Joint Motion for the Re-Appointment of Kevin Metzger and Wilbert Harris as Lead Counsel for Alex Tamba Brima and Brima Bazzy Kamara, and Decision on Cross-Motion by the Deputy Principal Defender to Trial Chamber II for Clarifĳication of its Oral Order of 12 May 2005 [hereinafter “Dissenting Opinion”] I consider some facts stated are incorrect or misleading. I was not given a copy of the Dissenting Decision prior to publication. I consider Rule 29 of the Rules of Procedure and Evidence does not permit any Judge to publish or discuss matters that have been discussed

1 The Prosecutor v. Norman et al., Case No. SCSL-2004-14-AR73, Decision on Amendment of the Consolidated Indictment, 16 May 2005, para. 43. 2 Prosecutor v. Sesay et al., Case No. SCSL-2004-15-PT, Decision on the Prosecutor’s Application for Leave to File an Interlocutory Appeal against the Decision on the Prosecution Motion for Joinder, 13 February 2004. 3 Prosecutor v. Sesay et al., Case No. SCSL-2004-15-PT, Decision on the Prosecutor’s Application for Leave to File an Interlocutory Appeal against the Decision on the Prosecution Motion for Joinder, 13 February 2004; Prosecutor v. Brima et al., Decision on the Prosecutor’s Application for Leave to File an Interlocutory Appeal against the Decision on the Prosecution Motion for Joinder, 13 February 2004. 578 part ii in Chambers however since several matters have been brought into the public arena by the publication of both the Dissenting Opinion and the interofffĳice memorandum I consider I am entitled to put the following before the Appeal Chamber: 1. At paragraph 29 of the Dissenting Opinion Her Honour states that “Before Ms. Carlton-Hanciles had an opportunity to disclose the contents of a document the Presiding Judge interjected…” thereby implying that this was a sole decision of the Presiding Judge. This implication is erroneous. The document, a copy letter from the accused persons, was given to each of the judges immediately before court was to open on 16 May 2005. We discussed that document, its implications on the ruling of 12 May and the attitude we should adopt. Hon. Justice Sebutinde took a very active part in that discussion and was one of the majority who decided the document should not be read. My notes show three issues were identifĳied by the judges and those three issues are incorporated into the extem- pore ruling. 2. At paragraph 29 there is a reference to a copy of Ms. Elizabeth Nahamya minute of 17 May 2005 being copied to the Judges. That memorandum was not received by the Judges of Trial Chamber II until the Registrar’s annotated copy was given on 18 May 2005 and we had no opportunity to discuss same prior to meeting the Registrar. 3. On 18 May 2005 the Registrar came to Trial Chamber II Chambers at the invitation of the Judges to discuss a matter entirely unrelated to the issues therein. At the end of our discussions he raised the issue of Ms. Nahamya’s minute. There was an active discussion and Hon. Justice Sebutinde was there throughout that discussion. The matters recorded in my minute are an ad verbatim record of statements made. Justice Sebutinde did not speak on the matter, neither did she dispute nor resile from the discussions. The Registrar asked for written confĳirmation the same day as he was leaving for New York. 4. It is correct that I telephoned each of the Judges and read out the draft to each of my judicial colleagues. It was only then that Justice Sebutinde stated she had reservations. I asked her to let me have her views as the Registrar needed a response that day. I waited, sent, then retrieved the minute pending Justice Sebutinde’s input. When none was received I again sent the minute prior to Registrar’s departure. I dispute the detail Justice Sebutinde gives in paragraph 2 of interofffĳice memorandum. The detailed memorandum referred to paragraph 30 of the Dissenting Opinion was not received until 19 May 2005 and it was not sent solely to me as Presiding Judge but also disseminated to others. It is correct that, as stated at paragraph 31 that I did not distinguish Justice Sebutinde’s views. I did not have those views. interlocutory decisions – trial chamber 579

5. I stress that the decision of 16 May 2005 and discussion of 18 May 2005 involved all three judges of the Trial Chamber. We had no knowledge of the pending motion fĳiled on 24 May 2005 and cannot be said to have contributed to controversy as implied in paragraph 41. 6. It is correct I gave Justice Sebutinde a copy of the minute to the Registrar when she asked me for it. I did so stating twice it was a chambers matter subject to Rule 29 and could not be published. Done at Freetown, Sierra Leone, this 5th day of August 2005. Justice Teresa Doherty Presiding Judge

TRIAL CHAMBER II

Before: Justice Teresa Doherty, Presiding Judge Justice Richard Lussick Justice Julia Sebutinde Registrar: Robin Vincent Date: 14 September 2005 PROSECUTOR Against Alex Tamba Brima Brima Bazzy Kamara Santigie Borbor Kanu (Case No.SCSL-04-16-T)

SEPARATE AND CONCURRING OPINION OF JUSTICE R.B. LUSSICK ON BRIMA-KAMARA APPLICATION FOR LEAVE TO APPEAL FROM DECISION ON THE RE-APPOINTMENT OF KEVIN METZGER AND WILBERT HARRIS AS LEAD COUNSEL

First Respondent Defence Counsel for Alex Tamba Brima: Registrar Kojo Graham Glenna Thompson Second Respondent Defence Counsel for Brima Bazzy Kamara: Principal Defender Andrew Daniels Mohamed Pa-Momo Fofanah 582 part ii

I. Introduction I agree with the majority decision (delivered on 5 August 2005, just before the judicial recess) that the application for leave to appeal should be granted. However, I am appending this separate concurring opinion because I am of the view that a diffferent reasoning ought to have been applied to arrive at that outcome. In my opinion, the application for leave to appeal was brought out of time, and the Trial Chamber ought therefore to have considered the efffect of the applicants’ non- compliance with the Rules before arriving at a decision. The impugned majority decision was delivered on 9 June 2005. The dissenting opinion was delivered on 11 July 2005 and the application for leave to appeal was fĳiled on 14 July 2005. For the reasons which follow, I hold that the application for leave should have been fĳiled by 13 June 2005 at the latest.

II. Deliberations

Leave to appeal a decision on a motion must be sought within 3 days of the decision. Rule 73(B) provides as follows: Decisions rendered on such motions are without interlocutory appeal. However, in exceptional circumstances and to avoid irreparable prejudice to a party, the Trial Chamber may give leave to appeal. Such leave should be sought within 3 days of the decision and shall not operate as a stay of proceedings unless the Trial Chamber so orders. The meaning of “decision” was considered by Trial Chamber I in the case of Prosecutor v. Sam Hinga Norman et al., Decision on Prosecution Application for Leave to Appeal ‘Decision on the First Accused’s Motion for Service and Arraignment on the Consolidated Indictment,’ dated 15 December 2004. In that case, two concurring opinions were delivered on 29 November 2004 and a dissenting opinion was delivered on 3 December 2004. The motion for leave to appeal was fĳiled 3 days after that on 6 December 2004. Trial Chamber I, deliberating the correct time limit for the fĳiling of an interlocutory appeal, held as follows: “Considering that the Prosecution fĳiled the Application within the time limits prescribed in Rule 73(B) of the Rules and in conformity with Rule 7(A) of the Rules and paragraph 8 of the Practice Direction for Certain Appeals Before the Special Court, and that the time limits for fĳiling of an interlocutory appeal run from the day after the fĳiling of the complete Decision of the Trial Chamber, which includes in this instance, a Separate and Concurring Opinion and a Dissenting Opinion.” I note that, although Trial Chamber I was of the view that its “complete” decision included a separate concurring opinion and a dissenting opinion, it qualifĳied that interlocutory decisions – trial chamber 583 description by the words “in this instance.” However, if Trial Chamber I meant that, as a general proposition, the time limit for fĳiling an interlocutory appeal runs from the day after the fĳiling of a dissenting opinion rather than the date of the delivery of the majority decision, then, with the greatest respect to my colleagues in that Trial Chamber, I beg to disagree with them.

The Practice Direction for Certain Appeals Before the Special Court, which was referred to by Trial Chamber I, was issued by the President pursuant to Rule 107 and Rule 117 and after consultation with the Vice-President. It establishes a procedure for the fĳiling of notice of appeal, grounds of appeal and written submissions in appeal proceedings under (inter alia) Rule 73(B). The following provisions (emphasis added) make it clear that a dissenting opinion is not taken into account for the purposes of bringing an appeal. Paragraph 6 of the Practice Direction states: 6. A party wishing to appeal from a decision of a Trial Chamber which may be appealed only with the leave of the Trial Chamber, or a Single Judge of the Appeals Chamber, or the Appeals Chamber, shall fĳile and serve on the other parties in accordance with the Rules, an application for leave to appeal accompanied by a copy of the ruling or judgment appealed and containing: a. the precise title and date of fĳiling of thedecision sought to be appealed; b. a summary of the proceedings before the Trial Chamber relating to the decision sought to be appealed including an identifĳication of all relevant documents in the proceedings before the Trial Chamber, clearly stating the title and date of fĳiling of each document or the page number of a transcript; c. the specifĳic provision of the Rules under which leave to appeal is sought; d. a concise statement as to why it is contended that the applicable criteria for the granting of leave to appeal under the provision relied upon have been met. Paragraph 7 states: 7. Unless otherwise provided in the Rules, the application shall be fĳiled within seven days of the impugned decision.

Paragraphs 10 sets out certain requirements concerning the appealed decision. A dissenting opinion is not an “impugned decision,” nor is it a “decision sought to be appealed.” In fact, a court delivering a majority decision is not even obliged to append a dissenting opinion, although it may do so. Rule 88(C) states: The judgement shall be rendered by a majority of the Judges. It shall be accompanied by a reasoned opinion in writing. Separate or dissenting opinions may be appended. It is only a majority decision that a party can appeal. A dissenting opinion obviously cannot be regarded as part of a majority decision, whether for the purpose of determining the time for bringing an appeal or otherwise. 584 part ii

It is true that a dissenting opinion might be helpful in supporting the submissions of a party on appeal. However, a party cannot ignore the time limit set by Rule 73(B) merely to await the dissenting opinion. At the stage of seeking leave to appeal, the party need only argue the test of “exceptional circumstances” and “irreparable prejudice.”1 It is not necessary to view the dissenting opinion before arguing those requirements. However, once leave to appeal has been granted, the party may seek additional time from the Appeals Chamber to wait for the dissenting opinion in order to support its arguments on the appeal. It is only at that later stage that a dissenting opinion may become important to a party, not at the Rule 73(B) stage. As mentioned earlier, the impugned decision was delivered on 9 June 2005 but the application for leave to appeal was not brought until 14 July 2005. Accordingly, I hold that it was brought out of time in contravention of Rule 73(B). There was no motion for an extension of time. On the other hand, neither of the Respondents have objected to the Applicants’ non-compliance with the Rules. Furthermore, I take into account that the application for leave to appeal was fĳiled in accordance with a precedent established by Trial Chamber I and that this is the fĳirst time that this particular issue has come before this Trial Chamber. In the circumstances, I hold that it would not be in the interests of justice to dismiss the application because of the late fĳiling.

III. Disposition

Having adjudicated on the Applicants’ contravention of the Rules, I would ALLOW the application for leave to appeal for the reasons set out in the majority decision. Done at Freetown this 14th day of September 2005.

1 The Appeals Chamber has recently ruled that the test in Rule 73(B) is not “satisfĳied merely by the fact that there has been a dissenting opinion on the matter in the Trial Chamber,” see Prosecutor v. Norman et al., Case No. SCSL-04-14-AR73, Decision on Amendment of the Consolidated Indictment, 16 May 2005, para. 43. TRIAL CHAMBER II

Before: Justice Teresa Doherty, Presiding Judge Justice Richard Lussick Justice Julia Sebutinde Registrar: Robin Vincent Date: 16 September 2005 PROSECUTOR Against Alex Tamba Brima Brima Bazzy Kamara Santigie Borbor Kanu (Case No.SCSL-04-16-T)

DECISION ON THE PROSECUTION’S ORAL APPLICATION FOR LEAVE TO BE GRANTED TO WITNESS TF1-150 TO TESTIFY WITHOUT BEING COMPELLED TO ANSWER ANY QUESTIONS IN CROSS-EXAMINATION THAT THE WITNESS DECLINES TO ANSWER ON GROUNDS OF CONFIDENTIALITY PURSUANT TO RULE 70(B) AND (D) OF THE RULES

Office of the Prosecutor: Defence Counsel for Alex Tamba Brima: Jim Hodes Glenna Thompson Lesley Taylor Kojo Graham Melissa Pack Defence Counsel for Brima Bazzy Kamara: Andrew Daniels Mohamed Pa-Momo Fofanah Defence Counsel for Santigie Borbor Kanu: Geert-Jan Alexander Knoops Carry Knoops Abibola E. Manly-Spain Amadu Koroma 586 part ii

TRIAL CHAMBER II (“Trial Chamber”) of the Special Court for Sierra Leone (“Special Court”), composed of Justice Teresa Doherty, presiding, Justice Richard Lussick and Justice Julia Sebutinde; SEISED of the Prosecution’s Oral Request for Leave for Witness TF1-150 to testify without being compelled to answer any question in cross-examination that the witness may decline to answer on grounds of confĳidentiality, pursuant to the provisions of section 70(B) and (D) of the Rules; (the “Motion”); NOTING the oral submissions in response by Counsel for the accused persons Brima, Kanu and Kamara (the “ Joint Response”); NOTING the Prosecution’s oral submissions in reply (the “Reply”); CONSIDERING also the provisions of Article 17 of the Statute of the Special Court for Sierra Leone (“the Statute”) and Rules 70 and 79 of the Rules of Procedure and Evidence of the Special Court (“the Rules”): HEREBY DECIDES AS FOLLOWS:

I. Introduction

1. Prosecution Witness TF1-150 is a foreign national who served in Sierra Leone during the period May 1998 to 2001 as a Human Rights advisor to an international organisation (“the former employer”). By virtue of his employment, Witness TF1- 150 obtained information relating to the conflict situation in Sierra Leone during the said period, some of which information he obtained on a confĳidential basis. In the interest of the former employer, Witness TF1-150 enjoyed and continues to enjoy by virtue of his employment, certain privileges and immunities in respect of all words spoken or written and all acts performed by him in the performance of his duties, including immunity from legal process. That means that he cannot testify before a court of law regarding his work except with the express permission of his former employer. 2. By a letter dated 23 May 2005 addressed to the Prosecutor, SCSL, the former employer waived part of that immunity and granted Witness TF1-150 permission to testify before the Special Court in a number of cases including the Prosecutor v. Alex Tamba Brima et al. However, due to the sensitive and confĳidential nature of some of the information that the witness might divulge, the waiver of immunity is conditional upon certain conditions, one of which is that the witness must testify in closed session. In compliance with the request of the former employer, the Trial Chamber on 13 September 2005 ordered pursuant to Rule 79(A)(iii) of the Rules that in the interests of justice Witness TF1-15- do testify in closed session. interlocutory decisions – trial chamber 587

3. In addition to the closed session, the Prosecution now seeks an order from the Trial Chamber guaranteeing before Witness TF1-150 is called to testify, that he will not be compelled to answer any questions in cross-examination, relating to the names of his informants or sources of information, on the grounds that he obtained information from these sources on conditions of confĳidentiality.

II. Submissions of the Parties

The Motion 4. The Prosecution requests the Trial Chamber pursuant to the provisions of Rule 70(B) and (D) of the Rules to allow Witness TF1-150 to testify without being compelled to answer any questions in cross-examination which questions the witness may decline to answer on grounds of confĳidentiality. 5. In particular the Prosecution submitted that despite having been granted leave to testify in closed session, Witness TF1-150 is unwilling to disclose or divulge the names of the sources of information that he obtained in the course of his employment as a Human Rights offfĳicer while working in Sierra Leone, by virtue of the fact that he obtained that information under conditions of confĳidentiality. The Prosecution maintained that under Rule 70(D) the Trial Chamber has no power to compel the witness to answer any question which the witness declines to answer on grounds of confĳidentiality. 6. The Prosecution further submitted that as a matter of principle, Witness TF1- 150 being a Human Right offfĳicial, is privileged from revealing the identity of his sources and that if he were compelled to reveal the names of those sources, this will result not only breach of confĳidentiality between the witness and his sources but may also lead to the compromise of their safety or security. The Prosecution relies in this regard on the provisions of section “J- Confĳidentiality” of the Training Manual on Human Rights Monitoring, 2001. 7. The Prosecution further submitted that if the Trial Chamber were to compel Witness TF1-150 to disclose the names of his sources it will set a bad precedent for other Human Rights workers trying to gather information in the fĳield as victims and other would-be informers will fĳind it difffĳicult in future to confĳide in such offfĳi- cials again. 8. The Prosecution submitted that in any event, the Defence will sufffer no unfair prejudice if the witness is allowed to confĳine his testimony to the type of source e.g. an NGO or an individual, but without being compelled to name the organisation or individual. 588 part ii

Joint Response 9. The Defence jointly opposed the application and submitted that Rule 70 upon which the Prosecution seeks to rely does not apply to Witness TF1-150 or his testimony and therefore does not accord him the immunity from being compelled to answer certain questions, in particular naming the sources of his information. 10. The Defence submitted further that the protective measures already accorded to Witness TF1-150 including leave to testify in closed session pursuant to Rule 79 of the Rules sufffĳiciently guarantee the confĳidentiality of any information that the witness may divulge in the course of his testimony and that it is unnecessary for the Trial Chamber in addition to shield him from having to answer certain question in cross-examination. 11. The Defence further submitted that the right of an accused person to examine witnesses against him as part of a fair trial process, is guaranteed by Article 17(4)(e) of the Statute and outweighs any other considerations such as the witness’s confĳidentiality obligations towards his informants. The Defence further submitted that Rule 75(A) which empowers the Trial Chamber to grant witnesses and victims “protective measures” also enjoins the Trial Chamber to ensure that such measures are not inconsistent with the rights of the accused persons, and that in fact the Prosecution request if granted would be prejudicial to those rights.

Prosecution Reply 12. The Prosecution submitted in reply that Rule 70(D) absolutely prohibits the Trial Chamber from compelling a witness summoned under that Rule to answer a question after the witness declines to do so on grounds of confĳidentiality. 13. Furthermore, the Prosecution maintained that the duty of a Human Rights Offfĳicial to maintain the confĳidentiality of his sources outweighs the rights of accused persons to insist on disclosure of the names of those sources.

III. Deliberations

14. Witness TF1-150 worked as a Human Rights monitor for an international organisation in Sierra Leone during a period relevant to the indictment in the case of The Prosecutor v. Alex Tamba Brima et al.1 By virtue of his employment in the organisation he enjoyed and continues to enjoy certain privileges and immunities including immunity from legal process. In other words he cannot be

1 Case No. SCSL-04-16-T. interlocutory decisions – trial chamber 589 compelled to appear and testify in a court of law relating to his employment without the express permission of his former employer. 15. The Prosecution tendered to the court a letter dated 23 May 2005 in which the former employer of Witness TF1-150 did in fact waive part of that immunity and granted him permission to appear before the Special Court in the AFRC Case and to “testify freely as to the existence or otherwise of any of the elements of any of the crimes set out in the Statute of the Special Court or other matters which, in the opinion of the Court, are relevant to the individual criminal responsibility of an accused person or of any circumstance of an exculpatory or mitigatory nature, as well as to be asked and to answer questions which seek to establish the existence of any such element or circumstance.” 16. However, the former employer observes in the said letter that in view of the “sensitive and confĳidential information” that the witness is likely to divulge, his testimony should only be given on that following conditions, namely that he “testifĳies in closed session; that transcripts and recordings of his testimony be restricted to the trial Chambers and their stafff, to the Prosecution and their stafff and to the accused and their counsel and expert advisers; and that the Prosecution and their stafff as well as accused and their counsel and expert advisers be prohibited from divulging the contents of such testimony to the media or to any other third part.” The waiver does not extend to the release confĳidential documents of the former employer unless prior permission in this regard is sought and obtained. 17. Based upon the contents of this letter the Trial Chamber on 13 September 2005 granted leave to Witness TF1-150 to testify in closed session pursuant to Rule 79(A)(iii) of the Rules. In addition to the closed session measures, the Prosecution now seeks additional protection for the witness by requesting the Trial Chamber not to compel him to answer certain questions in cross-examination if the witness refuses to answer the questions on grounds of confĳidentiality. 18. We note that in the said letter the former employer does not impose any restrictions on the witness’s testimony or on his ability to disclose the sources of information and instead authorises him to “testify freely” once the above pre-conditions have been met. It is the witness himself who as a matter of principle feels that he is under obligation to maintain the confĳidentiality of his sources. 19. First of all, we are of the view that the provisions of Rule 70 upon which the Prosecution seeks to rely are not applicable to Witness TF1-150 or his testimony. The Rule applies only where the Prosecutor “is in possession of information which has been provided to him on a confĳidential basis and which has been used solely for the purpose of generating new evidence…” That has not been shown to be the case here. We might add that it is that initial information together with its source that may not be disclosed by the Prosecutor without the prior consent of the source. 590 part ii

In this case the Prosecution has not shown that they are in possession of that initial information. Similarly, the Prosecution has not satisfĳied the criteria envisaged under Rule 70(D) of the Rules. In our view Rule 70(D) applies where “the person or representative of the entity providing the initial information” (i.e. the informant himself) has been called upon to testify. In this case Witness TF1-150 is not the originator of the initial information nor “the person or representative of the entity providing the initial information” but is merely a recipient thereof. As such he cannot rely on the protection offfered by Rule 70(D) of the Rules. Furthermore the ICTY authorities cited by the Prosecution in support of their arguments, including The Prosecutor v. Slobodan Milosevic2 and The Prosecutor v. Radoslav Brdjanin and Momir Talic,3 are persuasive but distinguishable and therefore not pertinent to this case. 20. Secondly, whereas the Trial Chamber recognises the privileged relationship between a Human Rights offfĳicer and his informants as well as the public interest that attaches to the work of Human Rights offfĳicers gathering confĳidential information in the fĳield, we do not think that the privilege and/ or public interest should outweigh the rights of the accused persons to a fair trial as guaranteed by Article 17 of the Statute. In any event, we are of the view that the protective measures pertaining to a closed session under Rule 79 are more than sufffĳicient to maintain the confĳidentiality of any information that Witness TF1-150 may divulge in the course of his testimony, without the need for additional measures whose efffect is to curtail the statutory rights of the accused. In this regard we agree with the view expressed by the witness’s former employer in their letter referred to above. In our opinion it would be prejudicial to the rights of the accused persons if Witness TF1-150 were permitted to disclose certain information and withhold the names of the sources, as the Defence would be handicapped in their attempts to challenge the information disclosed without knowing the name of the source. FOR ALL THE ABOVE REASONS the Trial Chamber dismisses the Prosecution request and rules that Witness TF1-150 can be compelled to answer questions relating to the sources of his information. Honourable Justice Teresa Doherty will deliver a separate dissenting opinion. Done at Freetown this 16th day of September 2005.

Justice Richard Lussick Justice Julia Sebutinde

2 The Prosecutor v. Slobodan Milosevic, Confĳidential Decision on Prosecution’s Application for a Witness Pursuant to Rule 70(B), 30 October 2003; The Prosecutor v. Slobodan Milosevic, Case No. IT-02-54-AR108bis & AR 73.3, Public Version of the Confĳidential Decision on the Interpretation and Application of Rule 70, 23 October 2002. 3 The Prosecutor v. Radoslav Brdjanin and Momir Talic, Case No. IT-99-36-AR73.9, Decision on Interlocutory Appeal, 11 December 2002. interlocutory decisions – trial chamber 591

DISSENTING OPINION OF JUSTICE DOHERTY ON THE PROSECUTION’S ORAL APPLICATION FOR LEAVE TO BE GRANTED TO WITNESS TF1-150 TO TESTIFY WITHOUT BEING COMPELLED TO ANSWER ANY QUESTIONS IN CROSS-EXAMINATION THAT THE WITNESS DECLINES TO ANSWER ON GROUNDS OF CONFIDENTIALITY PURSUANT TO RULE 70(B) AND (D) OF THE RULES

I have read the majority decision of my learned colleagues and, with the greatest respect, must dissent from their opinion. The submissions of the Prosecution and Defence and the facts leading up to it are set out in the Majority opinion and it is unnecessary to repeat them herein. Deliberations 1. The application by the Prosecution that Witness TFI-150 not be compelled to answer questions that would lead to naming of his sources of the information contained in his reports to the offfĳice of the United Nations Commissioner for Human Rights is based on: (1) the provisions of Rule 70 in particular Rule 70D of the Rules of Procedure and Evidence; and (2) a claim of privilege from naming the source which “he regards as confĳidential.” 2. The Defence jointly oppose the application. They argue answers identifying sources of information is not within the ambit of Rule 70(B) or Rule 70 of the Rules in its entirety and that the sources of information “go to credibility.” They state that “those stories were doing the rounds in the rumour mill at the time […], and were later found to be incorrect.”1 They submit that if the witness is “allowed to withhold the source of his information, then the accused would efffectively be barred from their right to examine evidence against” as guaranteed under Article 17(4)(e) of the Statute.2 3. The Prosecution submission of privilege is based on the balance of competing, public interest in the role of the Human Rights Offfĳicer to report and publish and the public interest in protecting their sources. 4. The Human Rights Offfĳicer’s duty is to report in unstable and occasionally dangerous environments and such reports are part of the information that the Security Council depends upon to assess and decide on action in maintaining peace and security and upholding the rule of law. It is on such information that

1 Transcript, 14 September 2005, page 3, line 14. 2 Transcript, 14 September 2005, page 4, line 20. 592 part ii international organisations and governments take political actions. In fact such information may be more vital to these bodies than media reports, as professional monitors gather information for mandated organisations. Further, in some cases the media may not show any interest to report about human rights abuses.3 Government and International Organisations therefore rely heavily on such reports and there is an public interest in the work and the information of Human Rights Offfĳicers as there is in media reports. 5. Prosecution state that the witness has assured his sources that he will protect their identity and on that basis they gave the information. It is the trust in the Human Rights Offfĳicer and his/her integrity that the Prosecutor seeks to enforce and protect and in so doing not to jeopardize future missions. 6. I consider this is an important, even fundamental, part of ensuring that Human Rights Offfĳicer can collect information that such information is given free from fear of reprisal and in a sense of safety by informants. 7. The Defence in reply say the Human Rights Offfĳicer and source will be fully protected by the name being written and given under seal. I do not consider that is the point. The point is the Human Rights Offfĳicer’s relationship of trust with his/ her source is based on his/her undertaking. His role depends on maintaining the integrity of that undertaking. Any revelation sealed or otherwise, breaches that undertaking. 8. Defence submit that the witness cannot rely on a letter from the United Nations, tendered in support of the Prosecution’s application for a closed session, as it permits him to give evidence without any fetter. I accept the reports etc., made by the witness have been made in the course of his employment and may be deemed to be the property of his employer. The Prosecution do not rely on that letter and, in any event, it is not the issue. The issue here is a matter of principle he considers imposed upon him to fulfĳil the undertaking not to reveal his source and the duty of trust this imposes upon him. Further the letter does not specifĳically mention confĳidential information received by the witness and therefore it is unclear whether the United Nations also waived the confĳidentiality of such information. Contrary to the Defence submission the letter states that the waiver “does not relate to the release of confĳidential documents of the United Nations, which is subject to separate authorization by the Secretary-General.” Asking the witness to testify about his confĳidential sources may deviate from the partially waived immunity.

3 On the absence of the international media in conflict situations and its efffects see Richard Dowden, Comment: The Rwandan Genocide: How the press missed the story, 103 African Afffairs (2004), pages 283–290. interlocutory decisions – trial chamber 593

9. Defence further submit that the matters of principle now put before the Court are in a manual (stating the obligations and duties of a Human Rights Offfĳicer) which did not exist when the witness was a Human Rights Offfĳicer and, in efffect, the Trial Chamber is asked to “give the manual retrospective efffect.”4 10. The Prosecutor has made it clear that the witness gave these undertakings to his sources of information at the time. The date of publication of training manuals does not make any diffference to that undertaking or, to my mind, undermine the submission. Moreover, the Manual is not a legal statute per se and there was a practice that the employees had to abide to ever before the manual was published. 11. Defence clearly have already assessed the standard of the evidence and decided it is in part, based on rumour and, hence unreliable. I am unclear from their submission why the actual name of the informant would vitiate or change that decision. Be that as it may, they stress that the witness information will be fully protected by a closed session and by writing the name which will be kept under seal. 12. Clearly the Trial Chamber is being asked to weigh two competing public interests: (1) protecting the sources of information given to a Human Rights Offfĳicer, when he reports in an unstable environment, and (2) the Accused’s right to know the accusations against him and who is making those accusations. 13. I fĳirst ask if the Trial Chamber can grant such a privilege. Privilege of information is specifĳically preserved in Rule 90(E) and Rule 97. Neither apply here. 14. The Prosecution concede there is no precedent in the International Tribunals granting privilege to Human Rights Offfĳicer. In Prosecutor v. Simic the ICTY has considered that there is an absolute immunity from testifying for a former employee of the International Committee of the Red Cross (“ICRC”) in order to protect the impartiality of the ICRC.5 As noted by the Appeal Chamber of the ICTY, “Trial Chambers have also granted or recognized privileges against testifying to employees and functionaries of the ICTY and to the Commander in Chief of the United Nations Protection Force.”6

4 Transcript, 14 September 2005, page 12, line 4. 5 Prosecutor v. Simic, Case No. IT-95-9-PT, Decision on the Prosecution Motion under Rule 73 for a Ruling Concerning the Testimony of a Witness (Order Releasing ex parte Confĳidential Decision of the Trial Chamber – 1 October 1999), 27 July 1999. 6 Prosecutor v. Brdjanin and Talic, Case No. IT-99-36-AR73.9, Decision on Interlocutory Appeal, 11 December 2002 referring to Prosecutor v. Delalic et al., Case No. IT-96-21-T, Decision on the Motion Ex Parte by the Defence of Zdravko Mucic Concerning the Issue of a Subpoena to an Interpreter, 594 part ii

15. I note the Rules of ICTY recognising specifĳic privilege are similar to those of the Special Court for Sierra Leone. In those decisions the Trial Chamber went outside those Rules and its decisions were upheld by the Appals Chamber. I also note the ruling in Prosecutor v. Simic recognised that the ICRC is a mandated organization and it was the “principles which underlie its activities” that caused the ICTY to protect its confĳidentiality.7 16. This witness has served under the mandate of UNOMSIL and UNAMSIL. The mandate of UNOMSIL established by the Security Council Resolution 1181 (1998) of 13 July 1998 was, inter alia, to “[…] report on violations of international humanitarian law and human rights in Sierra Leone […].”8 This mandate was carried over to UNAMSIL which was established by the Security Council in 1999 under Chapter VII of the United Nations Charter.9 As in the decision of the ICTY on the ICRC this witness also acted on behalf of a mandated organization charged with duties in the fĳield of international law and human rights. 17. I bear in mind the provisions of Article 20(3) of the Statute of the Special Court for Sierra Leone and I consider these persuasive authorities of the ICTY that a Trial Chamber may grant absolute or qualifĳied privilege to a witness even if they are not clearly set out in the rules. 18. It is in the interests of justice that a Trial Chamber is vested with a duty, on very rare occasions, not to compel a witness to answer certain questions on the grounds of privilege. 19. The Appeal Chamber of ICTY in Prosecutor v. Brdjanin and Talic dealt with privilege from testifying by war correspondents. As in the instant case the issue was “a novel one” and “there [did] not appear to be any case law directly on the point.”10 The Appeal Chamber considered the issue raised three subsidiary questions: “Is there a public interest in the work of war correspondents? If yes, would compelling war correspondents to testify before a tribunal adversely afffect their ability to carry out their work? If yes, what test is appropriate to balance the public interest in accommodating the work of war correspondents with the public interest in having

8 July 1997 and Prosecutor v. Blaskic, Case No. IT-95-14-T, Decision of Trial Chamber I on Protective Measures for General Philippe Morillon, Witness of the Trial Chamber, 12 May 1999, para. 53. 7 Prosecutor v. Simic, Case No. IT-95-9-PT, Decision on the Prosecution Motion under Rule 73 for a Ruling Concerning the Testimony of a Witness (Order Releasing ex parte Confĳidential Decision of the Trial Chamber – 1 October 1999), 27 July 1999. 8 U.N. Doc. S/Res/1181 (1998), para. 8. 9 U.N. Doc. S/RES/1270 (1999). 10 Prosecutor v. Brdjanin and Talic, Case No. IT-99-36-AR73.9, Decision on Interlocutory Appeal, 11 December 2002, para. 30. interlocutory decisions – trial chamber 595

all relevant evidence available to the court and, where it is implicated, the right of the defendant to challenge the evidence against him?”11 Substituting a Human Rights Offfĳicer for a war correspondent, I apply these questions to the witness and the matter of principle he seeks to uphold. 20. The work of the Human Rights Offfĳicer in unstable and war environments involves collecting information that informs the United Nations Commission for Human Rights, the United Nations and the Security Council. There is ample indication on this in the number of reports prepared. Eight situation reports prepared between June 1997 and August 2000 have been sought to be admitted in this Court, these together with Security Council reports indicate the information and reports that must be prepared for the Security Council to intervene and uphold international peace and security, and therewith the rule of law and the protection of human rights. 21. As noted in Prosecutor v. Brdjanin and Talic: “In war zones, accurate information is often difffĳicult to obtain and may be difffĳicult to distribute or disseminate as well. The transmission of that information is essential to keeping the international public informed about matters of life and death.”12 I consider the collecting of that information by a mandated Human Rights Offfĳicer in order to alert the international and national authorities about human rights abuses so that they can take appropriate political action is in the public interest. 22. Would compelling a Human Rights Offfĳicer to reveal the sources of their information adversely afffect their ability to carry out their work? The Witness through the Prosecution submission made clear his concern that revealing a source would be such a breach of confĳidentiality that it would jeopardise the relationship between Human Rights Offfĳicer and their informants and hamper their ability to work. The potential impact this will have upon the gathering of information and, in turn the decision making process, is grave. As stated in Prosecutor v. Brdjanin and Talic: “Indeed, the legal diffferences between confĳidential sources and other forms of evidence are likely to be lost on the average person in a war zone who must decide whether to trust a war correspondent with information.”13 23. I note that the Appeal Chamber noted this in the context of the interviewee being charged with an offfence, a situation that could also have eventuated here.

11 Ibid., para. 34. 12 Ibid., para. 36. 13 Ibid., para. 43. 596 part ii

Moreover, the factual situation remains the same: the interviewee must decide to trust the Human Rights Offfĳicer. 24. I paraphrase the words of the Appeal Chamber in Prosecutor v. Brdjanin and Talic and apply it to the instant case: “That compelling [a Human Rights Offfĳicer] to [reveal sources] before the International Tribunal on a routine basis may have a signifĳicant impact upon their ability to obtain information and thus their ability to inform the public on issues of general concern.”14 25. The Appeal Chamber stated the International Tribunal “will not unnecessarily hamper the work of professions that perform a public interest”15 and, with respect, I adopt and apply that to the instant case. 26. What test is appropriate to balance the public interest in accommodating the work of war correspondents with the public interest in having all relevant evidence available to the court? The Appeal Chamber in Prosecutor v. Brdjanin and Talic stated: “A Trial Chamber must conduct a balancing exercise between the difffering interests involved in the case. On the one hand, there is the interest of justice in having all relevant evidence put before the Trial Chambers for a proper assessment of the culpability of the individual on trial. On the other hand, there is the public interest in the work of war correspondents, which requires that the newsgathering function be performed without unnecessary constraints so that the international community can receive adequate information on issues of public concern.”16 27. It is only when the evidence sought is direct and important to the core issues in that case that a Trial Chamber may compel a witness to answer. I am not satis- fĳied on the submissions of the Defence that the naming of the Non-Governmental Organisation or the individual informant is important to the core issue in the case. They have not said so, on the contrary, they have already noted parts of the reports were “assertions […] which were not true”17 “those stories were doing the rounds in the rumour mill at the time.”18 Their assessment of the report verges on derisive. 28. The reports are hearsay and the inability of the Defence to challenge the original source in cross-examination does not mean it must be excluded. This Trial Chamber has clearly ruled that these are matters of weight which will be assessed in due course. As noted in a recent decision:

14 Ibid., para. 44. 15 Ibid. 16 Ibid., para. 46. 17 Transcript, 14 September 2005, page 3, line 10. 18 Transcript, 14 September 2005, page 3, line 14. interlocutory decisions – trial chamber 597

“[…] evidence may be excluded because it is unreliable, but it is not necessary to demonstrate the reliability of the evidence before it is admitted.”19 29. Therefore, in my view by admitting the evidence no prejudice would have been done to the defence as the Trial Chamber could have admitted it on the basis of Rule 89(C) of the Rules. 30. Further, I disagree with the purely textual interpretation of Rule 70 of the Rules by my learned colleagues. They have stated that Rule 70 is not applicable as it was not shown that the Prosecution was in possession of the information which has been provided to the witness on a confĳidential basis. The rationale of the Rule was recognised by the ICTY Appeals Chamber in the case of the Prosecutor v. Oric, where it stated that Rule 70 encourages third parties to provide confĳidential information to the Parties, regardless of any further disclosure of that confĳidential information.20 The same decision clarifĳied that a Party did not need to be in the possession of the confĳidential information in order to seek its application. 31. I consider that the public interest in ensuring a Human Rights Offfĳicer can maintain the confĳidentiality of his/her informants and so can seek information in the knowledge that the trust will not be betrayed in order to report fully to the United Nations and the International Community is of such importance that I would have granted qualifĳied privilege. 32. I am not satisfĳied by the Defence argument that the evidence sought is of direct and important value in determining a core issue in the case or that evidence on the facts stated cannot reasonably be obtained elsewhere. 33. For the foregoing reasons, I would have allowed the Prosecution application. Done at Freetown this 22nd day of September 2005.

Justice Teresa Doherty Presiding Judge

19 Prosecutor v. Brima et al., Case No. SCSL-04-16-PT, Decision on Joint Defence Application for Leave to Appeal from Decision on Defence Motion to Exclude all Evidence from Witness TF1-277, 2 August 2005, para. 6. 20 Prosecutor v. Oric, Case No. IT-03-68-AR-73, Public redacted Version of ‘Decision on Interlocutory Appeal Concerning Rule 70’ issued on 24 March 2004, para. 6.

TRIAL CHAMBER II

Before: Justice Teresa Doherty, Presiding Judge Justice Richard Lussick Justice Julia Sebutinde Registrar: Lovemore Munlo Date: 10 October 2005 PROSECUTOR Against Alex Tamba Brima Brima Bazzy Kamara Santigie Borbor Kanu (Case No.SCSL-04-16-T)

DECISION ON CONFIDENTIAL URGENT JOINT DEFENCE MOTION TO EXCLUDE EVIDENCE GIVEN BY WITNESS TF1–157 AND EVIDENCE TO BE GIVEN BY WITNESS TFI–158 BASED ON LACK OF AUTHENTICITY AND VIOLATION OF RULE 95

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

SEISED of the Confĳidential Urgent Joint Defence Motion to Exclude Evidence Given by Witness TFI-157 and Evidence to be Given by Witness TFI-158 Based on Lack of Authenticity and Violation of Rule 95, fĳiled on 25 July 2005; (“Motion”);

NOTING the Prosecution Response to Confĳidential Urgent Joint Defence Motion to Exclude Evidence Given by Witness TFI-157 and Evidence to be Given by Witness TFI-158 Based on Lack of Authenticity and Violation of Rule 95, fĳiled on 2 August 2005;

NOTING the Joint Defence Reply to Prosecution Response to Confĳidential Joint Defence Motion to Exclude Evidence Given by Witness TFI-157 and Evidence to be Given by Witness TFI-158 Based on Lack of Authenticity and Violation of Rule 95, fĳiled on 4 August 2005;

CONSIDERING the oral submissions of Counsel for the Prosecution and Defence made in Court on 25 July 2005 and 26 July 2005; HEREBY DECIDES AS FOLLOWS:

IV. Introduction

1. During the cross-examination of Witness TFI-157 on 25 July 2005 it emerged that he was a close family member of Witness TFI-158, who was due to testify next, and that they lived in the same room, even during the period that Witness TFI-157 was giving evidence. On the strength of these facts, the Defence made an oral application to the Trial Chamber for orders that the evidence given so far at the trial by Witness TFI-157 be excluded, and that the intended evidence to be given by Witness TFI-158 be precluded. The Trial Chamber ruled that the Defence should fĳile a formal motion and that, in the meantime, the evidence of Witness TFI-157 would continue. The cross-examination of the witness had to be discon- tinued later in the day because of problems with the Mandingo interpretation. This Motion was fĳiled the same day. The following day, 26 July 2005, the Trial Chamber denied a Defence application to prevent the evidence of Witness TFI- 158 proceeding on that day, and the evidence of that witness, who did not need a Mandingo interpreter, was heard and completed. The cross-examination of Witness TFI-157 was continued on 26 September 2005 and his evidence was then completed. interlocutory decisions – trial chamber 601

V. Submissions of the Parties

Defence 2. In support of the Motion, the Defence primarily relies on Rule 95, which states: “No evidence shall be admitted if its admission would bring the administration of justice into serious disrepute.” 3. Pursuant to Rule 95, the Defence submits that, because of the close relationship between the two witnesses and the fact that they resided together while Witness TFI-157 was giving evidence, the testimony in chief of Witness TFI-157 should be excluded in its entirety and the intended testimony of Witness TFI-158 should be precluded. It argues that the situation gives rise to “grave concern about the authenticity and independence of their respective testimony.” 4. The Defence expresses its strong belief that the continuation of the testimony of Witness TFI-157 and any start of the testimony of Witness TFI-158 is highly prejudicial to the Accused. 5. Moreover, the Defence submits that the mere perception that the two witnesses can no longer be qualifĳied as independent witnesses of fact, together with the fact that their testimony can no longer be seen as authentic, leads to the conclusion that the rights of the Accused have been violated according to Article 17(2) and Article 17(4) of the Statute. The Defence view is that “these minimum rights can only be endorsed when it is properly secured that witnesses are prevented from discussing the content of testimony already given by one of them with each other, and are prevented from giving any opportunity for such discussion.” 6. Apart from seeking the orders already mentioned, the Defence asks the Trial Chamber to instruct the Prosecution to ensure that witnesses will not reside in the same room during the course of their testimony and that witnesses who have commenced their testimony are not brought into contact with other witnesses who have yet to testify.

Prosecution 7. The Prosecution submits that the Defence arguments lack merit, that the implicit allegations of collusion are groundless, and that the Motion should be dismissed in its entirety. 8. The Prosecution contends that there are already in place sufffĳicient safeguards against contamination of testimony between witnesses. Firstly, the Defence has the right to test a witness’s credibility and raise any issues as to the authenticity 602 part ii and independence of testimony through cross-examination. Secondly, witnesses are ordered by the Court at the end of each day not to discuss their testimony with anybody. The Prosecution points out that in the present case Witness TFI-157 was given such an order and he understood it. 9. The Prosecution further submits that a suggestion of collusion between the two witnesses is implicit in the Motion, but that the Defence failed to put this allegation to witness TFI-157 in cross-examination. Furthermore, collusion cannot be presumed from the mere fact that the two witnesses are related and have stayed together during their testimony. Collusion suggests an agreement to abuse the legal system and mislead the court, and in the present case the Defence has not elicited any evidence to establish this.

Defence Reply 10. The Defence replies that contact between witnesses, during or before their testimony, should be prevented at all times and that the contact between the two witnesses in the present case should lead to exclusion of their evidence, as it may have been tainted. 11. The Defence argues that the right to cross-examine is not an adequate remedy and cannot countervail the risk of the witnesses influencing each other. 12. The Defence submits that it is not realistic for the Prosecution to claim that the Defence should have put the suggestion of collusion to the witness, since it would be impossible to prove such possible contamination of evidence, especially since the contamination may happen without any intention to contaminate. In any event, the view of the Defence is that contamination need not be the result of collusion, but can occur unintendedly. According to the Defence, since proof of actual contamination of evidence is impossible to establish, the mere fact that the witness TFI-157 during his testimony in court, and witness TFI-158 before his testimony in court, shared a room together over the weekend, creates a suggestion that evidence may have been “contaminated” and thus their testimony needs to be excluded from evidence.

VI. Deliberations

13. As submitted by the Prosecution, the Defence failed to put any suggestion of collusion directly to Witness TFI-157 during cross-examination. Nevertheless, both witnesses were cross-examined on whether they had discussed the evidence with one another. Witness TFI-157 was asked whether he had ever told Witness TFI-158 about what he has said to investigators from the Prosecution whom he interlocutory decisions – trial chamber 603 saw in his home village. He denied having said anything to the other witness about his interview with the investigators.1 14. Witness TFI-158 was cross-examined on whether Witness TFI-157 had told him about the evidence he had given in court. Witness TFI-158 answered that he had not been told anything of that nature by Witness TFI-157.2 He was questioned further on whether he himself had asked Witness TFI-157 about what had happened in court, and he replied: “I didn’t ask him and he did not explain anything to me.”3 15. Witness TFI-158 was also asked about the interview with investigators in his home village. He denied telling Witness TFI-157 anything about his statement to the investigators.4 It was also suggested to him that he had spoken about the AFRC with his brother before giving evidence in court, and he denied it.5 He also denied speaking to colleagues about the trial.6 16. Thus there is nothing to show that the two witnesses had ever discussed with each other the evidence they gave in Court. All the Defence can point to is a “potential contamination of evidence.” Despite this, we are urged by the Defence to exclude their testimony in its entirety, solely because they are closely related and shared the same room during the time that one of them was in the process of giving evidence in Court. In our view, it would be wrong to conclude that, as a general principle of law, witnesses in such situations are deemed to be inherently unreliable. We agree with what was said in Tadic that “[t]he reliability of witnesses, including any motive they may have to give false testimony, is an estimation that must be made in the case of each individual witness.” The court in that case held that a conclusion that a witness is deemed to be inherently unreliable can only be made “in the light of the circumstances of each individual witness, his individual testimony, and such concerns as the Defence may substantiate either in cross-examination or through its own evidence-in-chief.” 7 17. The Defence draws an analogy between the present case and the ICTY case of Prosecutor v. Kupreskic et al.8 We do not think that that case assists the Defence. In Kupreskic, the person who spoke to the witness after commencement of the

1 Transcript 25 July 2005, page 61, lines 2 to 5, lines 20 to 23. 2 Transcript 26 July 2005, page 53, lines 13 to 17, lines 18 to 27. 3 Transcript 26 July 2005, page 54, lines 4 to 6. 4 Transcript 26 July 2005, page 60, lines 8 to 15. 5 Transcript 26 July 2005, page 83, lines 1 to 4. 6 Transcript 26 July 2005, page 83, lines 22 to 27. 7 Prosecutor v. Tadic, Case No. IT-94-I-T Opinion and Judgment, 7 May 1997, para. 541. 8 Prosecutor v. Kupreskic et al., Case No. IT-95-16-T, Decision on Communications Between the Parties and Their Witnesses, Decision of 21 September 1998. 604 part ii witness’s testimony was one of the parties; it was not a case of witnesses speaking together. We do not agree with the reasoning of the Defence that the risk of two closely-related witnesses influencing each other’s testimony is a more serious risk than the risk of a witness being influenced by a party. Unlike a witness, a party has a defĳinite cause to pursue and therefore a motive to influence the testimony of a witness. That, in our view, is a risk of much more intensity than any which may arise from two witnesses communicating. Even then, the court in Kupreskic did not hold that the evidence of the witness in question ought to be excluded. 18. There is nothing in the Statute or Rules which expressly addresses the issue in the present case. Rule 89(B) provides: “In cases not otherwise provided for in this Section, a Chamber shall apply rules of evidence which will best favour a fair determination of the matter before it and are consonant with the spirit of the Statute and the general principles of law.” 19. In the absence of express provisions, the spirit of the Rules in regard to witnesses who hear the testimony of other witnesses can be ascertained from Rule 90(D), which states: “A witness, other than an expert, who has not yet testifĳied 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 disqualifĳied from testifying.” Under Rule 90(D) a witness who has heard the testimony of another witness by sitting in court while that other witness gives evidence cannot thereby be dis- qualifĳied from testifying. It seems to us to be wrong and grossly inconsistent with the spirit of this provision to say that the testimony of a witness who may or may not have heard the evidence of another witness, not from sitting in court, but from the other witness himself, should attract the draconian measure of exclusion or preclusion in its entirety. 20. It is trite law that the way to test the credibility of witnesses is by cross- examination, which can be used to determine whether witnesses have colluded or exchanged information on their testimony.9 The Defence has not referred us to any authority which would support the proposition that exclusion of evidence is the appropriate remedy in circumstances such as those in this case. In fact, although the Defence relies on Jones & Powles in support of its argument on the “potential contamination of evidence,” we note that the learned authors themselves endorse cross-examination as the correct remedy to determine whether

9 See Jones & Powles, International Criminal Practice, Oxford University Press, 3rd Edition, paras. 8.5.698, 8.5.713. interlocutory decisions – trial chamber 605 witnesses have spoken to each other about their testimony.10 Moreover, in the Prosecutor v. Nyiramasuhuko,11 the Trial Chamber held that where a number of witnesses are transferred at the same time to the Detention Unit, the right to cross-examine on credibility provides sufffĳicient protection against the possibility of communication between those witnesses. Nevertheless, a Trial Chamber should take all reasonable measures to ensure that such communication does not take place.12 21. It is the practice of this Trial Chamber to caution every witness not to discuss either the case or his or her evidence with any person during the trial. The Trial Chamber also ensures that every witness understands the meaning of this caution. This was done with respect to Witness TFI-157 when the case was adjourned on 25 July 2005 with his cross-examination incomplete. Not only was he given the usual caution, but it was in even stronger terms.13 In addition, when he was allowed to go home later that day, the Witness’s Unit was requested by the Prosecution to reinforce the caution given by the Trial Chamber.14 We consider that those were reasonable measures and that, in the circumstances, additional measures were neither practical nor necessary. Moreover, the testimonies of the two witnesses were not identical and there was no indication that the caution had been contravened. 22. We fĳind the evidence of Witness TFI-157 and Witness TFI-158 to be admissible. Accordingly, we hold that the Defence has not met its burden in that: (i) it has failed to establish that the evidence of the two witnesses should be disallowed under Rule 95; (ii) it has failed to show how the rights of the Accused have been violated under Article 17(2) and Article 17(4) of the Statute.

FOR THE ABOVE REASONS, THE TRIAL CHAMBER DISMISSES the Motion. Done at Freetown this 10th day of October, 2005.

10 See Jones & Powles, International Criminal Practice, Oxford University Press, 3rd. Edition, paras. 8.5.698, 8.5.713. 11 Prosecutor v. Nyiramasuhuko et al., Case No. ICTR-99-21-T, Decision on the Prosecutor’s Motions for Leave to Call Additional Witnesses and For the Transfer of Detained Witnesses, 24 July 2001. 12 Jones & Powles, International Criminal Practice, Oxford University Press, 3rd Edition, para. 8.5.698. 13 Transcript 25 July 2005, page 76, lines 22, 23, page 77, lines 10 to 18, page 78, lines 2 to 4. 14 Transcript 26 July 2005, page 99, lines 19 to 23.

TRIAL CHAMBER II

Before: Judge Teresa Doherty, Presiding Judge Judge Richard Brunt Lussick Judge Julia Sebutinde Registrar: Lovemore Munlo Date: 12 October 2005 PROSECUTOR Against Alex Tamba Brima Brima Bazzy Kamara Santigie Borbor Kanu (Case No.SCSL-04-16-PT)

DECISION ON PROSECUTION APPLICATION FOR LEAVE TO APPEAL DECISION ON ORAL APPLICATION FOR WITNESS TF1-150 TO TESTIFY WITHOUT BEING COMPELLED TO ANSWER QUESTIONS ON GROUNDS OF CONFIDENTIALITY

Office of the Prosecutor: Defence Counsel for Alex Tamba Brima: Luc Côté Kojo Graham Lesley Taylor Glenna Thompson James Hodes Melissa Pack Defence Counsel for Brima Bazzy Kamara: Andrew Daniels Mohamed Pa-Momo Fofanah Defence Counsel for Santigie Borbor Kanu: Geert-Jan Alexander Knoops Carry Knoops Abibola E. Manly-Spain 608 part ii

TRIAL CHAMBER II (“Trial Chamber”) of the Special Court for Sierra Leone (“Special Court”), composed of Judge Teresa Doherty, presiding, Judge Richard Lussick and Judge Julia Sebutinde; SEISED of the Prosecution Application for Leave to Appeal Decision on Oral Application for Witness TF1-150 to testify without being compelled to Answer Questions on Grounds of Confĳidentiality, fĳiled 19 September 2005 (“the Motion”); CONSIDERING the Joint Response, fĳiled on 23 September 2005 by the Defence for all three Accused (“the Joint Response”); CONSIDERING the Prosecution’s Reply to the Joint Response, fĳiled on 27 September 2005 (“the Reply”); BEING MINDFUL of the Decision on the Prosecution’s oral application for leave to be granted to Witness TF1-150 to testify without being compelled to answer any questions in cross-examination that the witness declines to answer on the grounds of confĳidentiality pursuant to Rule 70(B) and (D) of the Rules, dated 16 September 2005 (“the impugned Decision”); NOTING that Rule 73(B) of the Rules provides that “Decisions rendered on such motions are without interlocutory appeal. However, in exceptional circumstances and to avoid irreparable prejudice to a party, the Trial Chamber may give leave to appeal. Such leave should be sought within 3 days of the decision and shall not operate as stay of proceedings unless the Trial Chamber so orders.” NOTING therefore the general rule that decisions are without interlocutory appeal, and that only if the conjunctive conditions of exceptional circumstances and irreparable prejudice to a party in Rule 73(B) are satisfĳied, a Trial Chamber may grant leave to interlocutory appeal;1 CONSIDERING FURTHER that the Appeals Chamber has ruled that “In this Court, the procedural assumption is that trials will continue to their conclusion without delay or diversion caused by interlocutory appeals on procedural matters, and that any errors which afffect the fĳinal judgment will be corrected in due course by this Chamber on appeal.”2

NOTING therefore that the rationale behind the restrictive nature of Rule 73(B) is that the proceedings before the Special Court should not be heavily encumbered and consequently unduly delayed by interlocutory appeals;3 NOTING FURTHER that the Appeals Chambers ruled: “That test is not satisfĳied merely by the fact that there has been a dissenting opinion on the matter in the Trial Chamber, or that the issue strikes the Trial Chamber judges as interesting or important for the development of international criminal law.” 4 CONSIDERING that in the present case the question of whether a Human Rights Offfĳicer can be compelled to reveal the sources of his or her information is not only a novel and substantial aspect of international criminal law, but is also likely to arise again with regard to other witnesses in the present case and that the interpretation by the Appeals Chamber of Rule 70 and in particular Rule 70(B) and (D) of the Rules is of fundamental importance to both the Defence and Prosecution cases and therefore constitutes “exceptional circumstances” within the meaning of Rule 73(B) of the Rules; CONSIDERING FURTHER that correctly weighing the competing public interest of a Human Rights Offfĳicer’s undertaking to protect the confĳidentiality of his/her sources of information and the rights of an accused constitutes “exceptional circumstances” pursuant to Rule 73(B) of the Rules; CONSIDERING FURTHER that the impugned Decision, which compelled Witness TF1-150 to disclose the identity of his confĳidential source, may be capable of causing irreparable prejudice in that the Prosecution has been unable to call this witness to testify to a core issue at trial, i.e. the widespread and systematic nature of the attacks on the civilian population in Sierra Leone. FOR THE FORGOING REASONS THE TRIAL CHAMBER ALLOWS THE APPLICATION and grants the Prosecution leave to fĳile an interlocutory appeal against the impugned Decision. Done at Freetown, Sierra Leone, this 12th day of October 2005.

3 Prosecutor v. Sesay et al., Case No. SCSL-2004-15-PT, Decision on the Prosecutor’s Application for Leave to File an Interlocutory Appeal against the Decision on the Prosecution Motion for Joinder, 13 February 2004. 4 The Prosecutor v. Norman et al., Case No. SCSL-2004-14-AR73, Decision on Amendment of the Consolidated Indictment, 16 May 2005, para. 43.

TRIAL CHAMBER II

Before: Justice Teresa Doherty, Presiding Judge Justice Richard Lussick Justice Julia Sebutinde Interim Registrar: Lovemore Munlo Date: 17 October 2005 PROSECUTOR Against Alex Tamba Brima Brima Bazzy Kamara Santigie Borbor Kanu (Case No.SCSL-04-16-T)

DECISION ON DEFENCE SUBMISSION PROVIDING EVIDENTIARY PROOF OF REGISTRY’S REPEATED DISSEMINATION OF CONFIDENTIAL DOCUMENTS TO THE PRESS AND PUBLIC AFFAIRS OFFICE

Interim Registrar: Defence Counsel for Alex Tamba Brima: Lovemore Munlo Glenna Thompson Kojo Graham Defence Counsel for Brima Bazzy Kamara: Andrew Daniels Mohamed Pa-Momo Fofanah Defence Counsel for Santigie Borbor Kanu: Geert-Jan Alexander Knoops Carry Knoops Abibola E. Manly-Spain 612 part ii

TRIAL CHAMBER II (“Trial Chamber”) of the Special Court for Sierra Leone (“Special Court”), composed of Justice Teresa Doherty, presiding, Justice Richard Lussick and Justice Julia Sebutinde; SEISED of the Defence Submission Providing Evidentiary Proof of Registry’s Repeated Dissemination of Confĳidential Defence/Prosecution Trial Chamber Documents to Press and Public Afffairs, fĳiled on 12 May 2005 on behalf of the accused Brima Bazzy Kamara; NOTING also the oral submission of Counsel in Court made on 12 May 2005. NOTING that the Defence disapproves the distribution of confĳidential marked documents to the Chief of Press and Public Afffairs; NOTING further that there is an instruction from the Registrar to the Chief of Court Management to provide the Chief of Press and Public Afffairs with confĳiden- tial documents. WHILST NOTING the Defence submission is not a motion within the Provisions of the Rules of Evidence and Procedure (the Rules) and has not been served on any other party, the Presiding Judge has directed that the submission be served on the Registrar and that he responds thereto; NOTING the Response of the Registrar dated 27 June 2005; DECIDES AS FOLLOWS based solely on the written submissions and oral submissions of the parties and the Principal Defender of 12 May 2005.

I. The Submissions

1. On 12 May 2005, Co-Counsel for Brima informed the Court there was dissemination of confĳidential documents and said there “should be an enquiry.”1 The Principal Defender then stated that “confĳidential motions between (the Court) and between the Prosecution and Defence are being mailed to the Chief of Press and Public Afffairs” on the directive of the Registrar, that such confĳidential documents should not be given “to the Press or the Chief of the Press and Public Afffairs....” She sought an “instruction be given to Registry” by the Court to prohibit dissemination unless the Court “allows it.”2 The present written “submission” was fĳiled subsequently. 2. In it Co-Counsel for the accused Kamara states “there are many instances of this breach of confĳidentiality.” He annexes eleven copies of electronic

1 Transcript 12 May 2005, page 6, line 25. 2 Transcript 12 May 2005, page 7 line 5 et seq. interlocutory decisions – trial chamber 613 transmissions to the Chief of Press and Public Afffairs of which ten relate to confĳi- dential documents. These show dissemination of the confĳidential document that gave rise to the complaint of 12 May 2005 and others to the Head of Press and Public Afffairs of the confĳidential motion which gave rise to the complaint on 12 May 2005 and others. 3. Co-Counsel refers to the oral objection of 12 May 2005 by other Counsel on the same issue and states “we fĳind said dissemination very inappropriate” and requests that the Trial Chamber “instruct Court Management not to send any confĳidential […] fĳilings […] to the Press and Public Afffairs Offfĳice.” 4. Counsel makes no reference to any Rules or Decision of the Chamber in support of this application nor does he refer to the provisions empowering the Trial Chamber to make the order or instruction he seeks. 5. In Response the Registrar refers to his duties and responsibilities in Rule 33(A) of the Rules to support his submission that he “is responsible for all the administrative decisions of the Court, subject to the supervision of the President.” He submits this includes the decision to have confĳidential documents copied to the Press and Public Afffairs Offfĳice. 6. He explains the rationale behind this decision: “Unfortunately, there has been a history of documents being “leaked” from the Court to the press in Sierra Leone. It is therefore appropriate that the Head of the Press and Public Afffairs Offfĳice has knowledge of which court documents are confĳidential and which are not, not only to warn the Sierra Leone press of the status of any document if they are leaked, but also to understand what is in those documents and to be able to explain to the local press why they are confĳidential. In this way the Court is able to reduce the number of “leaked” documents, and the information contained in them, from being published.” And states: “It is also important for the Head of the Press and Public Afffairs Offfĳice to have knowledge of any confĳidential documents to be able to immediately identify it if the document, or the information contained in it, has been published…” 7. He also states that the Press and Public Afffairs Offfĳice need to be able to identify who has disclosed confĳidential documents and to check that confĳidential documents are not being inadvertently re-published if they have already appeared in the local press. 8. He submits the Trial Chamber has no statutory power to alter administrative decisions of the Registrar made pursuant to Rule 33(A) unless the Trial Chamber is satisfĳied such decision afffects the accused’s right to a fair trial. He notes no submission has been made and no evidence adduced by the defence alleging any breach of the accused’s right to a fair trial under Article 17 of the Statute of the Special Court of Sierra Leone. 614 part ii

II. Deliberations

9. It is apparent from the Registrar’s response that dissemination of confĳidential documents to the Head of Press and Public Afffairs Offfĳice is at his directive. 10. Defence Counsel in their oral and written submissions have not referred the court to any Article of the Statute or any Rule enabling the court to instruct Court Management. There is no doubt the Registrar has been charged with the responsibility for the “administration and servicing of the Special Court” and that he does so under the authority of the President. In turn Rule 19 charges the President with supervision of the activities of the Registry. It is the Registrar and not the Trial Chamber who has the responsibility and power to instruct Court Management under Rule 33(A). 11. As shown by decisions of other International Tribunals if a party is aggrieved by a decision of the Registrar, the Party may submit his complaint to the President.3 However, the instant case relates not only to an administrative decision of the Registrar but to the fĳiling of documents in the Trial Chamber which, in turn, is governed by the Practice Direction on Filing of Documents before the Special Court of Sierra Leone (The “Practice Direction”). Article 4(B) of the Practice Direction provides: “Where a Party, State, organization or person seeks to fĳile all or part of a document on a confĳidential basis, the party shall mark the document as ‘CONFIDENTIAL’ and indicate, on the relevant Court Management section form, the reasons for the confĳidentiality. The Judge or Chamber shall thereafter review the document and determine whether confĳi- dentiality is necessary. Documents that are not fĳiled confĳidentially may be used in press releases and be posted on the offfĳicial website of the Special Court. 11. Article 4(B) imposes an obligation on the Judge or the Trial Chamber to decide if the document needs to retain its confĳidentiality. We note that Article 4(B) provides that documents that are not fĳiled confĳidentiality may be used in press releases. 12. In this regard, we note the Registrar’s submission that the confĳidential documents are sent to the Head of Press and Public Afffairs Offfĳice, not for purposes of publication, but to avoid or prevent such publication by others. We further note that Counsel, in his submission, has not alleged any dissemination of confĳidential documents by the Press and Public Afffairs Offfĳice. We accept and fĳind that this practice by the Registrar is to prevent the leaking of confĳidential material.

3 See Prosecutor v. Ndindiliyimana, Case No. ICTR-00-56-I, Decision on Augustin Ndindiliyimana’s Motion for an Order that the Registrar Hold a Hearing on the Suspension of the Contract of His Investigator Pierre-Claver Karangwa, 12 November 2002; Prosecutor v. Gatete, Case No. ICTR-2000- 61-I, Decision on the Defence Request for Necessary Resources for Investigations, 2 November 2004. interlocutory decisions – trial chamber 615

However, we are of the opinion that the spirit and letter of Article 4(B) of the Practice Direction is to give the Judge or Trial Chamber the primary duty to review all confĳidential documents. FOR THE ABOVE REASONS WE ORDER THAT 1) documents fĳiled confĳidentially shall only be transmitted to the parties on which the fĳiling party intends to serve them; and 2) documents fĳiled as confĳidential shall not be disseminated to other persons except with the express leave of the Trial Chamber. Justice Julia Sebutinde appends separate and concurring opinion and Justice Richard Lussick a dissenting opinion. Done at Freetown, Sierra Leone, this 17th day of October 2005. 616 part ii

SEPARATE AND CONCURRING OPINION OF JUSTICE JULIA SEBUTINDE

I. Introduction

1. I have had the benefĳit of reading and digesting the majority decision on The Defence Submission Providing Evidentiary Proof of Registry’s Repeated Dissemination of Confĳidential Documents to the Press and Public Afffairs Offfĳice of the Special Court. I concur with the orders that (i) documents fĳiled confĳidentially shall only be transmitted to the parties on which the fĳiling party intends to serve them; and (ii) documents fĳiled as confĳidential shall not be disseminated to other persons except with the express leave of the Trial Chamber. However, in this separate concurring opinion I am of the view that a diffferent reasoning ought to have been applied in arriving at that outcome. 2. Firstly, I wish to expound on the parties’ submissions as I understood them. In addition I consider it judicially compelling for me to expound on (i) the jurisdictional aspects of this application and (ii) the notion of confĳidentiality in the context of documents or pleadings fĳiled before the Special Court vis-à-vis the practice currently appertaining in the court.

II. The Submissions

Defence Submissions 3. On 12 May 2005, Ms. Thompson Co-Counsel for the accused Alex Tamba Brima orally notifĳied the Trial Chamber that the document entitled “Confĳi- dential Prosecution Submissions In Response to Defence Submissions Disclosed to the Prosecution in Their redacted Form Pursuant to Order of 6 May 2005” had been disseminated by the Department of Court Management Services of the Special Court (CMS) to the Chief of Press and Public Afffairs of the Special Court (PPA). Counsel complained on behalf of the Defence that since the said document had been fĳiled confĳidentially pursuant to the Trial Chamber’s order of 6 May 2005 and since the Defence did not wish its contents made public, the said dissemination by CMS to PPA amounted to a breach of confĳidentiality and “a driving of coach and horses through the Trial Chamber’s Order.” Counsel requested the Trial Chamber (a) to inquire into the matter and to establish who had authorised the dissemination and (b) to direct “that the said document be retuned to the department of CMS and not to move out except to be served upon interlocutory decisions – trial chamber 617 the Prosecution and Defence and that it should not be disclosed to any other person.”1 4. On the same day, Ms. Simone Monasebian, then Principal Defender orally submitted that she had made inquiries of her own regarding the matter and that CMS had informed her that the Registrar had “given CMS an instruction that Ms. Cooper, Chief of PPA could receive all confĳidential documents so that she could understand what is going on in court.”2 The Principal Defender did not submit written proof of her fĳindings in this regard. She cited the provisions of Article 4 of the Practice Direction on Filing of Documents before the Special Court and observed that whilst the Article does not contain guidelines as to dissemination of confĳi- dential documents, it proscribes the use of confĳidential documents in press releases and their publication on the offfĳicial court website. The Principal Defender then undertook to provide proof of dissemination of the document entitled “Confĳidential Prosecution Submissions In Response to Defence Submissions Disclosed to the Prosecution in Their Redacted Form Pursuant to Order of 6 May 2005” and requested that in future, the Trial Chamber should control the confĳidentiality of documents. 5. On 13 May 2005 Mr. Mohamed Pa-Momo Fofana Co-Counsel for the accused Brima Bazzy Kamara fĳiled written submissions on behalf of the Defence in support of the above oral submissions. He annexed 11 copies of e-mails from the department of CMS showing proof of electronic transmissions of 10 confĳidential documents to (amongst others) the Chief of Press and Public Afffairs. The documents transmitted or disseminated included the document entitled “Confĳidential Prosecution Submissions In Response to Defence Submissions Disclosed to the Prosecution in Their redacted Form Pursuant to Order of 6 May 2005.” Counsel observed that “the Defence fĳind the said dissemination very inappropriate and respectfully requests that the Trial Chamber instructs CMS not to send any confĳidential Defence or Prosecution fĳilings (particularly those mentioning confĳidential Defence issues) to PPA whose only purpose is to disseminate information” and that “it is the Trial Chamber and not the Registrar that must determine who, if anyone, should receive such documents, and then only with notice and an opportunity to the Defence and Prosecution to be heard on the matter.” 6. On 21 June 2005 the Hon. Justice Doherty in her capacity as presiding judge issued an order pursuant to Rule 33 of the Rules directing the Registrar to fĳile written submissions in response to the Defence submissions.

1 AFRC Transcript 12 May 2005, page 6, lines 4 to page 7 line 3. 2 AFRC Transcript 12 May 2005, page 7, lines 4–27. 618 part ii

Registrar’s Submissions 7. On 27 May 2005 the Registrar fĳiled his written submissions in response to the Defence complaint, in which he admitted issuing the directive to CMS to copy all confĳidential documents “to other Sections of the Court as is deemed necessary in the interests of efffĳicient administration of the Court,” including the Registrar’s Legal Adviser, the Department of Witness and Victim’s Support, the Chief of Press and Public Afffairs and to the support stafff of the Chambers. The Registrar submitted further that his directive was issued administratively pursuant to his powers under Rule 33(A) of the Rules. He pointed out, however, that the copying of confĳi- dential documents to the Press and Public Afffairs Offfĳice is to the Head of that Offfĳice and not to anyone else in that offfĳice. 8. Explaining the rationale behind his decision to copy all confĳidential documents to the Chief of Press and Public Afffairs, the Registrar submitted as follows: “Unfortunately, there has been a history of documents being “leaked” from the Court to the press in Sierra Leone. It is therefore appropriate that the Head of the Press and Public Afffairs Offfĳice has knowledge of which court documents are confĳidential and which are not, not only to warn the Sierra Leone press of the status of any document if they are leaked, but also to understand what is in those documents and to be able to explain to the local press why they are confĳidential. In this way the Court is able to reduce the number of “leaked” documents, and the information contained in them, from being published. It is also important for the Head of the Press and Public Afffairs Offfĳice to have knowledge of any confĳidential documents to be able to immediately identify it if the document, or the information contained in it, has been published and then to notify the court and the Trial Chamber of that fact as soon as possible, thereby limiting any damage resulting from the disclosure. The Press and Public Afffairs Offfĳice, with its connections with the local press, may also be able to identify who has been responsible for disclosing a confĳidential document, but to do that the Offfĳice needs to know which documents, and the information contained in them, are confĳidential. No doubt the Defence teams would welcome the capability of the Press and Public Afffairs Offfĳice to perform that crucial role. The Press and Public Afffairs Offfĳice is also responsible for publishing “Press Clippings” on a daily basis and the offfĳice needs to identify which documents are confĳidential and the nature of the information contained in them in order to prevent inadvertently republish- ing such disclosed documents or, the information contained in them, that appear in the local press. It should also be made very clear that the copying of the confĳidential documents is to the Head of the Press and Public Afffairs Offfĳice only and not to anyone else.” 9. The Registrar argues pursuant to Rule 33(A) of the Rules of Procedure and Evidence of the Special Court for Sierra Leone (“the Rules”), that he is responsible for all administrative decisions of the Court, subject only to the supervision of the President, and that includes the decision to have confĳidential documents copied to the Press and Public Afffairs Offfĳice. He submits that, in the circumstances of the present case, the Trial Chamber has no statutory power to interlocutory decisions – trial chamber 619 alter administrative decisions of the Registrar made pursuant to Rule 33(A) unless the Trial Chamber is satisfĳied such decision afffects the accused’s right to a fair trial. He notes that no submission has been made and no evidence adduced by the Defence alleging any breach of the accused’s right to a fair trial under Article 17 of the Statute.

III. Deliberations

Jurisdiction to Entertain this Request 10. Defence Counsel have in their oral and written submissions not referred the court to any legal provision enabling the court to conduct this inquiry or to make the orders requested. The Registrar on the other hand, has challenged the Trial Chamber’s power and competence to alter administrative decisions of the Registrar made pursuant to Rule 33(A) unless the Trial Chamber is satisfĳied such decision afffects the Accused persons’ right to a fair trial. It is trite law in the International Criminal Tribunals that whilst the decisions of administrative Offfĳicials are ordinarily immune from judicial scrutiny and review, these courts will not hesitate to draw upon their inherent power in order to scrutinise and review an administrative decision that is prejudicial to the statutory rights of the accused persons or to the conduct of a fair trial.3 In the case of the Special Court the inherent powers of the court are exercised pursuant to Rule 54 of the Rules. 11. Rule 33(A) of the Rules confers upon the Registrar the responsibility for “assisting the Chambers, the Plenary Meetings of the Special Court, the Council of Judges, the Judges, the Prosecutor, the Principal Defender and the Defence in the performance of their duties.” Furthermore the rule confers upon the Registrar the responsibility for the “administration and servicing of the Special Court, under the authority of the President.” In turn Rule 19 of the Rules charges the President with supervision of the activities of the Registry. This means that ordinarily, a person aggrieved by a decision of the Registrar can and may appeal to the President of the Special Court for review of that decision. However, as stated above there is an exception to the norm where a party to the trial is of the view that the Registrar’s administrative decision is prejudicial to the statutory rights of the accused persons or to the conduct of a fair trial. Thus in the instant case, before the Trial Chamber can interfere with the Registrar’s directive to CMS to disseminate all

3 The Prosecutor v. Tadic, Case No. IT-94-1, Decision on the Defence Motion for interlocutory Appeal for Jurisdiction, 2 October 1995; The Prosecutor v. Blaskic, Case No. IT-914, Judgement on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997, 29 October 1997; The Prosecutor v. Barayagwiza, Case No. ICTR 97-13, Decision on Abuse of Process, 3 November 1999; The Prosecutor v. Alex Tamba Brima et al., Case No. SCSL-04-16-T, Brima-Decision on Applicant’s Motion Against denial by the Acting Principal Defender to enter into a Legal Services Contract for The Assignment of Counsel, 6 May 2004. 620 part ii confĳidential documents to the Chief PPA it must be shown that the directive is either prejudicial to the statutory rights of the accused persons or to the conduct of a fair trial.

The Essence of Confĳidentiality of trial Documents 12. Defence Counsel have complained that the matters raised and contained in the document entitled “Confĳidential Prosecution Submissions In Response to Defence Submissions Disclosed to the Prosecution in Their Redacted Form Pursuant to Order of 6 May 2005” were matters that the Defence did not wish to be made public and in respect of which they obtained a court order for confĳidentiality. The Defence are unhappy with the Registrar’s directive to CMS to disseminate all confĳidential documents to the Chief of PPA, whose only role according to the Defence “is to disseminate information.” The Defence describe the directive as “a breach of confĳidentiality” specifĳically with regard to the said document and generally with regard to all other confĳidential documents fĳiled as such with CMS. The Registrar on the other hand argues that confĳidential documents are disseminated to the Chief of PPA only and not to any other person in her offfĳice. He has explained the purpose of this dissemination and adds further that the Defence have not proved any prejudice sufffered by the accused persons as a result of the dissemination. 13. Neither the Statute of the Special Court nor the Rules of Procedure and Evidence contain any guidelines concerning the fĳiling or dissemination of confĳi- dential documents. However, the Registrar has pursuant to the provisions of rule 33(D) of the rules and under the authority of the Plenary issued a Practice Direction on Filing Documents before the Special Court for Sierra Leone (the “Practice Direction”) which contains general guidelines on the fĳiling of documents by parties before the Special court. The Practice Direction does not expressly provide for the current situation. However, Article 4(B) of the Practice Direction provides as follows: “ (B) Where a Party, State, organization or person seeks to fĳile all or part of a document on a confĳidential basis, the party shall mark the document as “CONFIDENTIAL” and indicate, on the relevant Court Management section form, the reasons for the confĳidentiality. The Judge or Chamber shall thereafter review the document and determine whether confĳidentiality is necessary. Documents that are not fi led confi dentially may be used in press releases and be posted on the offi cial website of the Special Court. (Emphasis added.) 14. Article 4(B) envisages that before a party is permitted to fĳile a document with CMS as “confĳidential” they must fĳill out a CMS form indicating the reasons for confĳidentiality and submit the document together with the reasons for confĳi- dentiality to the Trial Chamber for review and determination as to whether confĳidentiality is necessary. It would appear that Article 4(B) is intended to vest interlocutory decisions – trial chamber 621 the Trial Chamber with the ultimate authority to determine which documents may or may not be fĳiled confĳidentially. Here I must observe that the practice currently appertaining in the Special Court with regard to the fĳiling of confĳidential documents is at variance with the letter and spirit of Article 4(B) and circumvents the Trial Chamber’s input. In practice, a party wishing to fĳile a confĳidential document simply fĳills out the relevant CMS Form-1 indicating inter alia, the classifĳica- tion of the document as “CONFIDENTIAL” as well as the parties (including actual names of Counsel) upon which the document should be served.4 Without reference to the Trial Chamber the fĳiling party submits the document and Form to CMS for fĳiling. Interestingly the CMS Form makes no provision for the Trial Chamber’s endorsement of confĳidentiality of a document as envisaged under Article 4(B) of the Practice Direction. Be that as it may, once the CMS receives the document and attached Form they fĳile the document as “confĳidential” without reference to the Trial Chamber and disseminate it to the parties indicated on the Form. Hitherto that practice has not been challenged. 15. Of course the reasons for requesting confĳidential fĳiling of a document difffer from case to case. For example, in the case of the document entitled “Confĳidential Prosecution Submissions In Response to Defence Submissions Disclosed to the Prosecution in Their Redacted Form Pursuant to Order of 6 May 2005” the Defence specifĳically sought for and were granted leave by the Trial Chamber to fĳile that and related documents not only “confĳidentially” but also “under seal.” The reasons given to the Trial Chamber were that the documents contained sensitive information the publication of which would be prejudicial to Defence Counsel in the performance of their statutory duties. In my opinion, once a document has been fĳiled as confĳidential, there are certain privileges that pertain to that status one of which is that the public is precluded from accessing it on the offfĳicial website of the Special Court. Another privilege is that the Press is precluded from accessing and using the confĳidential document in press releases. A third privilege, the Defence argue, is that CMS may not disseminate the document to persons other than the parties to whom it is directed as indicated on the CMS Form-1 without leave of the Trial Chamber which leave should only be given after hearing from the concerned parties. I am inclined to agree with this submission. In my opinion, the very essence of confĳidentiality is that it protects the integrity and content of a given document from undesirable or prejudicial publication while permitting only the parties to which it is directed, to access the information in that document. In my view it would defeat the very essence of confĳidentiality if as soon as a confĳidential document was fĳiled, CMS disseminated it to persons or parties to which it was never intended to be served and over which neither the Trial Chamber nor the fĳiling party has control. It would in my view amount to nothing short of a breach

4 See Part 1 of Form 1. 622 part ii of confĳidentiality. In the instant case where the documents in question were fĳiled confĳidentially and under seal pursuant to an order of the Trial Chamber, the efffect of such dissemination would be to render that order nugatory. 16. In this regard, I note the Registrar’s submissions that he has directed the dissemination of confĳidential documents to the Chief of Press and Public Afffairs not for the purposes of publication but to avoid or prevent such publication by others. The Defence have expressed reservations about the dissemination of the confĳi- dential documents to an offfĳicial of the court that has nothing to do with the trial proceedings as well as the potential within the offfĳice of PPA for further unauthor- ised dissemination or publication of confĳidential information. In my view, these reservations are valid and to hold otherwise would be to defeat the very essence of confĳidentiality. The wider the scope of dissemination of a confĳidential document, the greater the likelihood of its leakage. Parties to the trial ought to rest assured that when they fĳile documents confĳidentially or under seal, the offfĳice of CMS will treat the contents of such documents as privileged and sacrosanct and that no one will “drive a coach and horses” through that privilege. This assurance or guarantee is in my view, fundamental to the integrity of the trial proceedings and to the conduct of a fair trial. Consequently, any administrative decision whose efffect is to undermine that assurance is in my view, liable to judicial review by the Trial Chamber under Rule 54 of the Rules.

Conclusion 17. I fĳind that the dissemination by CMS of the document entitled “Confĳidential Prosecution Submissions In Response to Defence Submissions Disclosed to the Prosecution in Their Redacted Form Pursuant to Order of 6 May 2005” to PPA and other departments of the court was tantamount to a breach of confĳidentiality and of the Trial Chamber’s order that the document and others related to the Defence Motion for withdrawal of Counsel should be fĳiled “confĳidentially and under seal.” I fĳind further that the Registrar’s blanket directive to CMS to disseminateall confĳi- dential documents to the Head of PPA is also tantamount to a breach of confĳiden- tiality. In order to preserve the confĳidentiality of documents fĳiled between the parties, to preserve the integrity of the trial proceedings and related motions and in the interests of justice and a fair trial, I concur with the orders contained in the Majority Decision. Done at Freetown this 17th day of October 2005. interlocutory decisions – trial chamber 623

SEPARATE AND DISSENTING OPINION OF JUSTICE R.B. LUSSICK

I. Introduction

1. I have read the majority decision and the separate and concurring opinion of Justice Sebutinde and, with the greatest respect, I have to say that I do not agree with my learned colleagues. The complaint of Co-Counsel for the Accused Kamara is not about the exercise of any judicial function. Rather, his complaint is against an administrative decision of the Registrar on the way confĳidential documents are to be distributed. That being the case, it is my opinion that this Trial Chamber should not have entertained the complaint at all, since it falls within the jurisdiction of the President.

II. Background

2. Before the Trial Chamber is a written submission from Mr. Fofanah, Co-Counsel for the Accused Kamara (“Co-Counsel”), fĳiled as a consequence of matters raised in open court on 12 May 2005 by both Counsel for the Defence and the then Principal Defender. 3. Co-Counsel claims that the Court Management Section is guilty of breaching confĳidentiality by sending confĳidential documents, both from the Prosecution and the Defence, to Ms. Allison Cooper, Chief of Press and Public Afffairs. Co-Counsel maintains that the Press and Public Afffairs Offfĳice, “whose only purpose is to disseminate information,” should not be sent confĳidential information. He asks the Trial Chamber to instruct the Court Management Section not to send any confĳidential Defence or Prosecution fĳilings to the Press and Public Afffairs Offfĳice. He argues that it is the Trial Chamber Judges, not the Registrar, who must determine who, if anyone, should receive such documents. 4. Attached to Co-Counsel’s written submission are copies of various emails from Court Management Section evidencing dissemination of documents marked CONFIDENTIAL to a number of personnel of the Special Court, as well as to members of the Prosecution and Defence. However, the only distribution objected to by Co-Counsel is the distribution to Ms. Allison Cooper. Despite that objection, Co-Counsel does not allege that the Head of Press and Public Afffairs has actually published any such documents or misused them in any way. 5. The Registrar has fĳiled a Response in which he explains why confĳidential documents are distributed not only to the parties but also to other Sections of the Court as is deemed necessary in the interests of efffĳicient administration of the Court. He points out, however, that the copying of confĳidential documents to the Press and Public Afffairs Offfĳice is to the Head of that Offfĳice and not to anyone else. 624 part ii

6. The Registrar states that there has been a history of documents being “leaked” from the Court to the local press. He explains that, in order to prevent leaks, con- fĳidential documents are sent to the Head of Press and Public Afffairs, who is then able to take certain precautions (which he describes) to prevent any confĳidential information from being published. 7. The Registrar argues that, pursuant to Rule 33(A) of the Rules of Procedure and Evidence of the Special Court for Sierra Leone (“the Rules”), he is responsible for all administrative decisions of the Court, subject to the supervision of the President, and that includes the decision to have confĳidential documents copied to the Press and Public Afffairs Offfĳice. He submits that, in the circumstances of the present case, the Trial Chamber has no statutory power to alter administrative decisions of the Registrar made pursuant to Rule 33(A).

III. Deliberations

8. Rule 33(A) is in the following terms: (A) The Registrar shall assist the Chambers, the Plenary Meetings of the Special Court, the Council of Judges, the Judges and the Prosecutor, the Principal Defender and the Defence in the performance of their functions. Under the authority of the President, he shall be responsible for the administration and servicing of the Special Court and shall serve as its channel of communication. 9. Under Rule 33(D) of the Rules, the Registrar may, with the approval of the Council of Judges, issue Practice Directions addressing particular aspects of the practice and procedure in the Registry of the Special Court. In exercise of this power, the Registrar has issued the Practice Direction on Filing Documents before the Special Court for Sierra Leone. Article 4(B) of the Practice Direction makes provision for confĳidential documents. Article 4(B) states: Where a Party, State, organization or person seeks to fĳile all or part of a document on a confĳidential basis, the party shall mark the document as “CONFIDENTIAL” and indicate, on the relevant Court Management Section form, the reasons for the confĳidential- ity. The Judge or Chamber shall thereafter review the document and determine whether confĳidentiality is necessary. Documents that are not fĳiled confĳidentially may be used in press releases and be posted on the offfĳicial website of the Special Court. 10. It can be seen from this provision that the Judge or Chamber has the judicial function of deciding whether a document should be treated as a confĳidential document. However, that function should not be confused with the administrative function of distributing the document. What Co-Counsel is objecting to is not the way in which the judicial function is exercised, but the way in which the confĳidential documents are distributed. The Judge or Chamber’s role in the processing of the document ends once the status of the document has been decided. The document is then distributed according to the practice and procedure of the Registry. interlocutory decisions – trial chamber 625

11. Under Article 16(1) of the Statute, the Registry is responsible for the administration and servicing of the Special Court. Under Rule 19(A) of the Rules, the President of the Special Court is empowered to supervise the activities of the Registry. 12. The practice and procedure adopted for the distribution of confĳidential documents is an administrative decision made by the Registrar. From what the Registrar has submitted, it is clear that his decision to include the Head of Press and Public Afffairs in the distribution list is meant as an added protection to confĳidentiality. 13. It is well established that administrative decisions by the Registrar are subject to review by the President, but not by the Trial Chamber.1 14. Although the Rules provide a framework whereby the Registry is responsible for administrative matters, subject to Presidential review, the Courts have in some instances instructed the Registrar in administrative matters where fair trial issues were involved.2 However, there are no fair trial issues involved in the present case.

IV. Disposition

15. For the above reasons, I would fĳind that the Trial Chamber should not intervene in this matter and that Co-Counsel’s submissions ought to have been brought before the President. Accordingly, I would DENY the relief sought. Done at Freetown, Sierra Leone, this 17th Day of October 2005.

1 See, for example the Prosecutor v. Ntabakuze, Case No. ICTR-98-41-T, Decision on Ntabakuze’s Motion Regarding Access to the United Nations Detention Facility, 10 June 2002; Prosecutor v. Ndindiliyimana, Case No. ICTR-00-56-I, Decision on Augustin Ndindiliyimana’s Motion for an Order that the Registrar Hold a Hearing on the Suspension of the Contract of His Investigator Pierre-Claver Karangwa, 12 November 2002; Prosecutor v. Gatete, Case No. ICTR-2000-61-I, Decision on the Defence Request for Necessary Resources for Investigations, 2 November 2004; Prosecutor v. Delalic et al., Case No. IT-96-21-PT, Decision on the Prosecutor’s Motion for the Production of Notes Exchanged Between Zejnil Delalic and Zdravko Mucic, 31 October 1996. 2 Prosecutor v. Gatete, Case No. ICTR-2000-61-I, Decision on the Defence Request for Necessary Resources for Investigations, 2 November 2004, para. 5; The ICTR in that case cited the following authorities: Nahimana et al., Decision on Jean-Bosco Barayagwiza’s Motion for Appointment of Counsel or a Stay of Proceedings (AC), 22 October 2004; Bizimungu et al., Decision on Prosper Mugiraneza’s Motion to Require the Registrar to Allow Access to a Witness (TC), 2 October 2003; Muvunyi et al., Decision on the Accused’s Request to Instruct the Registrar to Replace Assigned Lead Counsel (TC), 18 November 2003.

TRIAL CHAMBER II

Before: Justice Teresa Doherty, Presiding Judge Justice Richard Lussick Justice Julia Sebutinde Interim Registrar: Lovemore Munlo Date: 18 October 2005 PROSECUTOR Against Alex Tamba Brima Brima Bazzy Kamara Santigie Borbor Kanu (Case No.SCSL-04-16-T)

DECISION ON THE DEFENCE MOTION FOR THE TEMPORARY PROVISIONAL RELEASE TO ALLOW THE ACCUSED SANTIGIE BORBOR KANU TO VISIT HIS MOTHER’S GRAVE

TRIAL CHAMBER II (“Trial Chamber”) of the Special Court for Sierra Leone (“Special Court”), composed of Justice Teresa Doherty, presiding, Justice Richard Lussick and Justice Julia Sebutinde; SEISED of the Kanu-Defence Motion For the Temporary Provisional Release to Allow the Accused to Visit his Mother’s Grave, fĳiled on 7 September 2005 and the Kanu-Defence Additional Documents To Motion for Temporary Provisional Release to Allow the Accused to Visit his Mother’s Grave, fĳiled on 9 September 2005 (“the Motion”); CONSIDERING the Prosecution Response to the Kanu-Defence Motion For the Temporary Provisional Release to Allow the Accused to Visit his Mother’s Grave, fĳiled on 13 September 2005 (“the Response”); CONSIDERING also the Kanu-Defence Reply to Prosecution Response to the Kanu-Defence Motion For the Temporary Provisional Release to Allow the Accused to visit his Mother’s Grave, fĳiled on 15 September 2005 (“the Reply”); MINDFUL of the Order For a Written Representation From the Registrar Pursuant to Rule 33 on Security Measures for a Potential Temporary Release of the Accused Kanu issued by Justice Teresa Doherty, Presiding Judge on 23 September 2005 (“Order”); CONSIDERING also the Registrar’s Representations on the Motion of the Accused Kanu for Temporary Provisional Release, fĳiled on 30 September 2005, the Confĳidential Registrar’s Supplementary representations on the Motion of the Accused Kanu for Temporary Provisional Release, fĳiled on 30 September and the Corrigendum to Registrar’s Representations on the Motion of the Accused Kanu for Temporary Provisional Release, fĳiled on 6 October 2005 (“the Registrar’s Representations”); MINDFUL of the provisions of Article 17 of the Statute of the Special Court (“Statute”), Rules 64 and 65 of the Rules of Procedure and Evidence of the Special Court (“Rules”) and Rules 3 and 61 of the Rules Governing the Detention of Persons Awaiting Trial or Appeal Before the Special Court for Sierra Leone or Otherwise Detained on the Authority of the Special Court for Sierra Leone (“Detention Rules”); HEREBY DECIDES AS FOLLOWS based solely on the written submissions of the parties pursuant to Rule 73(A) of the Rules.

I. Background 1. On 24 June 2005 the Defence approached the Registrar requesting that the Accused Santigie Borbor Kanu be permitted to visit his ailing mother. Although interlocutory decisions – trial chamber 629 the accused was not granted permission to leave the Detention Unit of the Special Court, the Registrar instead made arrangements for Mr. Kanu’s mother to visit her son at the Detention Unit on 26 June 2005. In July 2005 the Defence made a second request to the Registrar for the accused Kanu to visit his mother as her health was deteriorating and she was no longer able to travel to the Detention Unit to see her son. Mr. Kanu did not get a response to this request. On 2 September 2005 Mr. Kanu’s mother passed away and the accused was informed accordingly. Upon receipt of the news, Mr. Kanu requested the Registrar for permission to attend his mother’s funeral. The Registrar declined the request on the grounds that “in view of the risk assessment made in respect of the security arrangements which would need to be in place to ensure both his custodial status and his safety, it is not recommended that he be allowed out of the Detention Facility.” Accordingly the accused Kanu did not attend his mother’s funeral which took place on 2 September 2005. 2. Following his inability to attend his mother’s funeral, the Accused Santigie Borbor Kanu fĳiled this Motion requesting for “temporary provisional release” from custody to enable him to visit the grave of his late mother in order to pay his last respects as he was unable to attend the funeral.

II. Submissions of the Parties Motion 3. Mr. Knoops, Counsel for the Accused, fĳiled the motion for temporary provisional release on bail pursuant to Rule 65(A) of the Rules and argued that “if released, the accused will appear for his trial and will not pose a danger to any victim, witness or other person and will abide by any other condition set by the Court.” 4. The Defence for Kanu maintains that the refusal by the Registrar to allow the Accused Kanu to attend his mother’s funeral on the 2 September 2005 was a violation of his right to private life and right to family as enshrined in Article 17(1) of the International Covenant on Civil and Political Rights (ICCPR). Mr. Knoops relied on the Decisions of the International Tribunal for the former Yugoslavia (ICTY) in the Prosecutor v. Blagoje Simic1 and the Prosecutor v. Dusan Fustar2 and the Decision of the European Court of Human Rights in Ploski v. Poland.3 Mr. Knoops observed

1 The Prosecutor v. Simic, Case No. IT-95-9-A, Decision on Motion of Blagoje Simic pursuant to Rule 65(1) for Provisional release for a Fixed Period to Attend Memorial Services of His Father, ICTY Appeals Chamber, 21 October 2004. 2 The Prosecutor v. Fustar, Case No. IT-02-650PT, Decision on Defendant Dusan Fustar’s Emergency Motion Seeking a temporary Provisional release to Attend the 40th-Day Memorial of his Father’s death, ICTY Trial Chamber, 11July 2003. 3 Ploski v. Poland, Judgement, European Court of Human Rights, 12 November 2002 (26761/95-202, ECHR 729) para. 39. 630 part ii however, that since the funeral has already taken place it is too late for the accused Kanu to apply for judicial review of the Registrar’s decision. 5. Mr. Knoops argued further that if the accused Kanu is granted a temporary provisional release from custody to visit his late mother’s grave in order to pay his last respects, it will partly compensate him for the violation of his right to a private and family life. Counsel argued further that Mr. Kanu’s right to visit his mother’s grave should outweigh any need for security measures that the Registrar may have to put in place. Counsel proposed that “any potential security risks relating to Mr. Kanu’s custodial status and safety could be circumvented by having two security offfĳicers accompany the accused, and even having the accused handcufffed to one of the offfĳicers. In that way, return to the Detention facility on that same day would have been guaranteed…”

Response 6. The Prosecution submitted that whilst they are in principle not opposed to Mr. Kanu visiting his late mother’s grave in order to pay his respects, a determination of whether he should be granted temporary provisional release under Rule 65(B) should depend on the particular circumstances of the case and the release on bail should only be granted if the Trial Chamber is satisfĳied that the accused will re-appear for the remainder of his trial and that if released he will not pose a danger to any witness or victim or any other person. 7. The Prosecution further submitted that Mr. Kanu’s request should only be granted if the necessary security measures are put into place and that in the circumstances the Registrar is the proper functionary to assess the security concerns and to advise the Trial Chamber accordingly.

Reply 8. The Defence concedes that Mr. Kanu’s application for temporary provisional release should be determined upon its own merits.

Registrar’s Representations 9. Pursuant to the Trial Chamber’s Order of 22 September 2005 the Registrar submitted that the Motion is improperly fĳiled under Rule 65(A) of the Rules. In reality the application is not one for temporary provisional release of Mr. Kanu from the custody and detention of the court but rather is for special measures of detention under Rule 64 of the Rules. The Registrar further submitted that under Rule 64 of the Rules the Trial Chamber has no authority to order special measures of detention as that power is vested solely in the Registrar subject to the approval of the President of the Special Court. interlocutory decisions – trial chamber 631

10. The Registrar further submitted that in exercising his discretion under Rule 64 of the Rules he would need to take into account the particular circumstances of the situation, including the security and good order of the Detention Facility, the health and safety of the accused and the rights and fundamental freedoms of the accused. 11. The Registrar submitted that a decision for special detention measures pursuant to Rule 64 of the Rules is not subject to judicial review by the Trial Chamber unless it impacts signifĳicantly upon Mr. Kanu’s statutory rights to a fair trial pursuant to Article 17 of the Statute, which in this instance is not the case.

III. Deliberations 12. The provisions of Rule 65 of the Rules under which the Motion was fĳiled provide for the conditional release on bail of an accused person from the custody and detention of the court pending his trial. However, the Motion before us does not seek permission to release Mr. Kanu from the custody and detention of the court whilst visiting his mother’s grave. Quite to the contrary, Mr. Knoops suggests that “any potential security risks relating to Mr. Kanu’s custodial status and safety could be circumvented by having two security offfĳicers accompany the accused, and even having the accused handcufffed to one of the offfĳicers. In that way, return to the Detention facility on that same day would have been guaranteed.” We therefore agree with the submissions of the Registrar that the Motion is misconceived and wrongly fĳiled under Rule 65 of the Rules. In reality Mr. Kanu’s application is one for an order for special measures of detention outside the Detention Facility under Rule 64 of the Rules. In that regard we also agree that the proper functionary to make such an order is the Registrar with the approval of the President of the Special Court. 13. Furthermore, since the Motion does not call upon the Trial Chamber to review a decision or order of the Registrar in this regard, the Trial Chamber fĳinds no valid reason to usurp or interfere with the Registrar’s powers under Rule 64 of the Rules. FOR THE ABOVE REASONS the motion is dismissed. Done at Freetown this 18th day of October 2005.

TRIAL CHAMBER II

Before: Judge Teresa Doherty, Presiding Judge Judge Richard Lussick Judge Julia Sebutinde Interim Registrar: Lovemore Munlo Date: 25 October 2005 PROSECUTOR Against Alex Tamba Brima Brima Bazzy Kamara Santigie Borbor Kanu (Case No.SCSL-04-16-PT)

DECISION ON THE PROSECUTION MOTION FOR JUDICIAL NOTICE AND ADMISSION OF EVIDENCE

TRIAL CHAMBER II (“Trial Chamber”) of the Special Court for Sierra Leone (“Special Court”), composed of Justice Teresa Doherty, presiding, Justice Richard Lussick and Justice Julia Sebutinde; SEIZED of the “Motion for Judicial Notice and Admission of Evidence” fĳiled by the Prosecutor on 2 April 2004 (“Motion”); NOTING that the Defence did not fĳile any response to the Motion; NOTING the Decision of the Appeals Chamber “Fofana – Decision on Appeal against ‘Decision on Prosecution’s Motion for Judicial Notice and Admission of Evidence,’ dated 16 May 2005 (“Fofana”);1 NOTING the Scheduling Order on Judicial Notice Motion, dated 27 May 2005 directing the parties to fĳile further submissions in the light of the said Appeals Chamber decision; NOTING the Prosecution’s Consequential Submissions on the Motion for Judicial Notice and Admission of Evidence, fĳiled on 6 June 2005 (“Consequential Submissions”) NOTING the Joint Defence Response thereto, fĳiled on 9 June 2005; (“Response”); CONSIDERING the provisions of Rules 89, 92bis and 94 of the Rules of Procedure and Evidence of the Special Court for Sierra Leone (“Rules”); DECIDES the Motion solely on the written submissions of the parties pursuant to Rule 73 of the Rules.

I. Background

1. The Prosecution fĳiled the Motion pursuant to Rules 73, 89, 92bis and 94 of the Rules on 2 April 2004. At that time, Trial Chamber II had not yet been established. Initially, none of the Accused persons fĳiled a response to the Motion. 2. On 1 April 2004, the Prosecution in the case of Prosecutor v. Norman et al. fĳiled a motion for judicial notice.2 Trial Chamber 1 delivered its decision on 2 June 2004, with a Corrigendum on 23 June, 2004.3 A motion for leave to appeal that decision was fĳiled on behalf of two of the Accused, Fofana and Kondewa on 7 June 2004.4

1 Prosecutor v. Norman, Kondewa, Fofana, Case No. SCSL-2004-14-AR73, Fofana – Appeal against Decision on Prosecution’s Motion for Judicial Notice and Admission of Evidence, 16 May 2005. 2 Prosecutor v. Norman, Kondewa, Fofana, Case No. SCSL-2004-14-T, Prosecution Motion for Judicial Notice, fĳiled on 1 April 2004. 3 Prosecutor v. Norman, Kodewa, Fofana, Case No. SCSL-2004-14-T, Decision on Prosecution Motion for Judicial Notice, 2 June 2004. 4 Prosecutor v. Norman, Kondewa, Fofana, Case No. SCSL-2004-14-T, Joint Request of Second and Third Accused for Leave to Appeal Against Decision on Prosecution Motion for Judicial Notice, fĳiled on 7 June 2004. interlocutory decisions – trial chamber 635

Trial Chamber I granted leave on 20 October 2004 to Fofana, but rejected the application of Kondewa.5 A Notice of Appeal was subsequently fĳiled by Fofana on 28 October 2004.6 3. This Trial Chamber later decided to await the outcome of that appeal in order to ensure consistency in its own decision with the ruling of the Appeals Chamber. The decision of the Appeals Chamber in Fofana was delivered on 16 May 2005. On 27 May 2005 this Trial Chamber issued a Scheduling Order directing the parties to fĳile further submissions in the light of the Appeals Chamber decision. The Prosecution subsequently fĳiled Consequential Submissions on 6 June 2005, to which a Joint Defence Response was fĳiled on 9 June 2005.

II. Submissions of the Parties

Prosecution 4. The Prosecution originally requested the Trial Chamber to take judicial notice under Rule 94(A) of the Rules of the facts contained in Annex A and in the documents listed in Annex B to the Motion. In the alternative, it requested that these facts be admitted into evidence under Rules 89(B) and (C) and 92bis of the Rules. (This original application was later amended by Consequential Submissions – see below.) 5. The Prosecution begins its submissions by pointing out that the doctrine of judicial notice serves to expedite proceedings and promote judicial economy in keeping with the object and purpose of the Special Court and its limited time frame and budget. 6. It submits that it is mandatory for the Trial Chamber under Rule 94(A) to take judicial notice of ‘facts of common knowledge.’ It relies on the interpretation of such facts given in Semanza as meaning “those facts which are not subject to reasonable dispute, including common or universally known facts, such as general facts of history, generally known geographical facts and the laws of nature”7 and which encompass “those facts that are generally known within a tribunal’s territorial jurisdiction,” there being “no requirement that a matter be universally accepted in order to qualify for judicial notice.”8

5 Prosecutor v. Norman, Kondewa, Fofana, Case No. SCSL-2004-14-T, Decision on Joint Request of Second and Third Accused for Leave to Appeal Against Decision on Prosecution Motion for Judicial Notice, dated 19 October 2004 but fĳiled on 20 October 2004. 6 Prosecutor v. Norman, Kondewa, Fofana, Case No. SCSL-2004-14-T, Notice of Appeal and Submissions Against the Decision on the Prosecution Motion for Judicial Notice and Admission of Evidence on Behalf of Moinina Fofana, fĳiled on 28 October 2004. 7 The Prosecutor v. Semanza, Case No. ICTR-97-20-1, Decision on the Prosecutor’s Motion for Judicial Notice and Presumptions of Facts Pursuant to Rules 94 and 54, 3 November 2000, para. 23. 8 Ibid., para. 31. 636 part ii

7. Furthermore, the Prosecutions says, it is the established practice of international criminal tribunals to take judicial notice of facts contained in authoritative documents, such as those of the UN and afffĳiliated bodies. The Prosecution cites Semanza as authority for the proposition that historical facts qualify as facts of common knowledge if they are “so notorious, or clearly established or susceptible to determination by reference to readily obtainable and authoritative sources that evidence of their existence is unnecessary.”9 8. The Prosecution goes on to submit that the defĳinition of ‘common knowledge’ may extend beyond factual fĳindings to include legal conclusions drawn from facts of common knowledge and that the Trial Chamber must judicially notice these conclusions, so long as they do not prejudice the accused by going to proof of guilt. 9. As an alternative argument, the Prosecution urges the Trial Chamber to judicially notice or admit the evidence pursuant to Rules 89 and 92bis. It submits that Rule 89(B) of the Rules provides a legal basis for the Chamber’s discretion to take judicial notice of, or admit in evidence, certain facts when the interests of justice so require. It further submits that under Rule 89(C) the Trial Chamber has a broad discretion in determining what evidence is relevant. It refers to the principle of “extensive admissibility of evidence,” underlying which is the competence of professional judges to evaluate evidence. 10. It is submitted by the Prosecution that under Rule 92bis, any information may be admitted instead of oral testimony provided that the “two prong test of relevance and the existence of a possibility of confĳirming its reliability is satisfĳied.” It argues that the documents in Annex B to the Motion are relevant as they refer to factual allegations stipulated in the Indictments, and that since these documents are authoritative sources their reliability can be confĳirmed by the documents themselves or by oral testimony. 11. As mentioned earlier, following the Appeals Chamber decision in Fofana, the Prosecution, on the directive of the Trial Chamber, fĳiled Consequential Submissions on 6 June 2005. In its Consequential Submissions, the Prosecution substitutes Amended Annex A for the original Annex A and requests the Trial Chamber to take judicial notice of the facts listed in Amended Annex A, relying on the reasons articulated in the original motion. It also requests the Trial Chamber to admit the information in the documents listed in Annex B pursuant to Rules 89(B) and (C) and 92bis, rather than judicially notice them. According to the Prosecution, no prejudice or unfairness to the Accused will arise from the admission of such information because the burden of proof will not be displaced, so that if the facts contained in the documents have not been proven beyond reasonable doubt – a

9 Ibid., para. 25. interlocutory decisions – trial chamber 637 fĳinding that can only be made at the conclusion of all the evidence – trial judges sitting alone will exercise the appropriate forensic judgement.

Defence 12. It is clear from the Response fĳiled by the Defence that it agrees with the Prosecution on the meaning of “facts of common knowledge” stated in Semanza.10 In addition, the Defence cites the conclusion of the Appeals Chamber in Fofana that “facts of common knowledge under Rule 94(A) cannot be challenged during trial and that legal conclusions as well as facts which constitute legal fĳindings cannot be judicially noticed.”11 13. The Defence then goes on to address each of the facts listed by the Prosecution in Amended Annex A by providing separate arguments on each fact, after which it gives its assessment of the admissibility of the documents in Annex B.

III. Applicable Law

14. The applicable law has been clearly stated by the Appeals Chamber in Fofana.12 It is appropriate for us to restate it here since it is the law we must apply in adjudicating the case before us. 15. The general rules of evidence which the Trial Chamber must apply are contained in Rule 89, which states: (A) The rules of evidence set forth in this Section shall govern the proceedings before the Chambers. The Chambers shall not be bound by national rules of evidence. (B) In cases not otherwise provided for in this Section, a Chamber shall apply rules of evidence which will best favour a fair determination of the matter before it and are consonant with the spirit of the Statute and the general principles of law. (C) A Chamber may admit any relevant evidence. 16. The specifĳic rule relating to judicial notice is Rule 94, which provides: (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

10 See paras. 6 and 7, supra. 11 Fofana, para. 32. 12 Fofana, at paras. 16 to 27. 638 part ii

documentary evidence from other proceedings of the Special Court relating to the matter at issue in the current proceedings. 17. Rule 94 must be distinguished from the court’s reception of information under Rule 92bis. We will return to Rule 92bis when we come to consider the documents listed in Annex B. 18. Pursuant to Rule 94(A), the Trial Chamber must take judicial notice of facts of common knowledge. As has been previously mentioned, the Appeals Chamber in Fofana accepted the interpretation in Semanza of ‘facts of common knowledge’ as meaning “those facts which are not subject to reasonable dispute including common or universally known facts, such as general facts of history, generally known geographical facts and the law of nature” and which encompass “those facts that are generally known within a tribunal’s territorial jurisdiction.” Therefore, “[u]nder the rubric of matters of common knowledge, a court may generally take judicial notice of matters so notorious, or clearly established or susceptible to determination by reference to readily obtainable and authoritative sources that evidence of their existence is unnecessary.”13 19. The criteria for facts of common knowledge, as approved by the Appeals Chamber,14 are as follows: a) the facts are relevant to the case of the accused person; b) the facts are not subject to reasonable dispute; c) the facts do not include legal fĳindings; d) the facts do not attest to the criminal responsibility of the accused. 20. Facts of common knowledge under Rule 94(A) cannot be challenged during trial and legal conclusions as well as facts which constitute legal fĳindings cannot be judicially noticed.15

IV. Deliberations

21. Having stated the applicable principles of law, we now turn to a consider the application of the criteria to each of the facts listed in Amended Annex A. 22. Before doing so, we think it is appropriate to express our opinion on the status of the authoritative sources referred to by the Prosecution in support of each fact. We agree with the view expressed by Robertson J. in Fofana that since the rule against hearsay does not apply to the Special Court there is no reason to

13 See Fofana, para. 21. 14 See Fofana, para. 28. 15 Fofana, paras. 30 to 32. interlocutory decisions – trial chamber 639 treat authoritative sources as “pieces of documentary evidence received by way of exception to the hearsay rule.” The preferable view is for courts to “look at such sources simply in order to equip themselves to take judicial notice.” A party seeking judicial notice of a particular fact “must direct the court’s attention to the range of authoritative sources which taken together demonstrate that the fact is indisputable.”16

Facts Listed in Amended Annex A i) Fact A: The conflict in Sierra Leone occurred from March 1991 until January 2002. 23. The Appeals Chamber in Fofana held that held that this was a “notorious fact of history” and “cannot be subject to reasonable dispute.”17 Also, the fact is not opposed by the Defence. Accordingly, we take judicial notice of this fact. ii) Fact B: The city of Freetown, the Western area and the following districts are located in the country of Sierra Leone: Port Loko, Bombali, Koinadugu, Kono, Kailahun, Kenema and Bo. 24. The Appeals Chamber held in Fofana that straightforward geographical facts cannot be sensibly disputed.18 No objection has been raised by the Defence. We take judicial notice of this fact. iii) Fact C: Sierra Leone acceded to the Geneva Conventions of 12 August 1949 and Additional Protocol II to the Geneva Conventions on 21 October 1986. 25. This was regarded by the Appeals Chamber as “an indisputable offfĳicial fact.”19 The only objection raised by the Defence is that the statement ought to be amended to take into account that “according to the information on the website of the International Committee for the Red Cross Sierra Leone made a declaration of succession on 10 June 1965 indicating that it would abide by the 1949 Geneva Conventions which were applicable prior to its independence.” 26. The wording of Fact C is somewhat ambiguous. It could be taken to mean that the Sierra Leone acceded to the Conventions and Protocol II all on the same date, i.e. 21 October 1986. Or it could be taken to mean that, having previously acceded to the Conventions, Sierra Leone later acceded to Protocol II on 21 October 1986.

16 Fofana, Separate Opinion of Justice Robertson, para. 7. 17 Fofana, para. 36. 18 Fofana, Separate Opinion of Justice Robertson, para. 19. 19 Fofana, Separate Opinion of Justice Robertson, para. 21. 640 part ii

27. With regard to the Geneva Conventions of 12 August 1949, the website of the International Committee of the Red Cross states: “In a note dated 31 May 1965 and received by the Swiss Federal Council on 10 June of that year, the government of Sierra Leone declared that State to be party to the four Conventions by virtue of their ratifĳication by the United Kingdom of Great Britain and Northern Ireland on 23 September 1957. The Conventions entered into force for Sierra Leone retroactively as from 27 April 1961, the date on which that country became independent.”20 Sierra Leone later acceded to Additional Protocol II to the Geneva Conventions on 21 October 1986.21 28. We therefore note that the Conventions entered into force retroactively to 27 April 1961 and that Sierra Leone acceded to the Additional Protocol II on 21 October 1986. Accordingly, for the sake of clarity and completeness, we take judicial notice of the fact that: Sierra Leone declared itself to be a party to the Geneva Conventions with eff ect from 27 April 1961 and acceded to the Additional Protocol II to the Geneva Conventions on 21 October 1986. iv) Fact D: Groups commonly referred to as the RUF, AFRC and CDF were involved in the armed conflict in Sierra Leone. 29. The Defence objects to this fact being judicially noticed on the ground that it relates to legal fĳindings which directly concern the allegations against the Accused. It is not clear whether this objection is to the names given to the groups involved, or to the fact that there was an armed conflict, or to both. 30. We note that the Appeals Chamber has clearly stated that the existence of an armed conflict is an important factual or contextual element in all war crimes by defĳinition and therefore not a legal fĳinding, and that, “in the context of Sierra Leone these facts cannot be subject to reasonable dispute taking into consideration the general knowledge of the population.”22 31. The participation of groups identifĳied as “RUF,” “AFRC” and “CDF” in the armed conflict is referred to in many authoritative documents, such as reports of the Secretary General of the United Nations and UNHCR and by non-governmental organisations such as Human Rights Watch and Amnesty International. We can fĳind no legal or factual reason which would support the Defence objection. Accordingly, we fĳind that Fact D is a fact of common knowledge qualifying for judicial notice.

20 See the offfĳicial ICRC website: http://www.icrc.org. 21 See the offfĳicial ICRC website: http://www.icrc.org. 22 Fofana, para. 36–38. interlocutory decisions – trial chamber 641 v) Fact E: The RUF, under the leadership of Foday Saybana Sankoh, began organized armed operations in Sierra Leone in March 1991. 32. The Defence objects to this fact being judicially noticed as it “relates to the proof of the Prosecution’s theory in the AFRC case” – an objection which remains unexplained. 33. In support of Fact E, the Prosecution refers to a report of the Secretary- General, a UNHCR Background Paper, and papers from two well known human rights organizations. 34. In our opinion, nothing in Fact E goes to the criminality of the Accused (if that was the nature of the objection by the Defence). We fĳind that Fact E is an historical fact not reasonably capable of dispute and, accordingly, we take judicial notice of it. vi) Fact F: During the ensuing armed conflict, the RUF forces were also commonly referred to as ‘RUF,’ ‘Rebels’ and ‘People’s Army’ by the population of Sierra Leone 35. The Defence submits that this fact cannot be judicially noticed because the sources relied upon by the Prosecution do not support it. The fĳirst source is a transcript of a radio broadcast by the “RUF Spokesman, Lieutenant David Collings.” Defence submits that the evidence contained in this document is not specifĳic, that there are conflicting dates ascribed to this broadcast and that therefore the source is vague. 36. The Defence contends that the second document, a UN Department of Humanitarian Afffairs Situation Report, cannot support Fact F because it does not refer to any date, thus making it impossible for the Defence to know which spe- cifĳic document is referred to among the many UN documents mentioned in the “Prosecution Filed Materials.” 37. As regards the third document, a report of the International Crisis Group, the Defence argues that nowhere in the document can support be found for Fact F. 38. It is clear from the wording of Fact F that the Prosecution has not confĳined itself to any specifĳic period of the armed conflict within which the RUF forces were allegedly being referred to as ‘RUF rebels,’ or ‘rebels,’ or the ‘People’s Army.’ The wording implies that all times during the ensuing armed conflict the RUF forces were the forces commonly referred to by the population of Sierra Leone as “Rebels” and “People’s Army.” Moreover, apart from a reference in the fĳinal paragraph of the transcript of the broadcast (“No more RUF but the People’s Army”), the source materials relied upon by the Prosecution do not make specifĳic reference to Fact F. 642 part ii

39. We fĳind that Fact F is not a fact of common knowledge, but would appear to be a disputable fact that needs to be proved at trial, and therefore cannot be made the subject of judicial notice. vii) Fact G: On 30 November 1996, FODAY SAYBANA SANKOH and Ahmed Tejan Kabbah, President of the Republic of Sierra Leone, signed a Peace Agreement in Abidjan, Ivory Coast which brought a temporary cessation of active hostilities.” 40. The Defence accepts the fĳirst part of Fact G, but objects to that part which states: “which brought a temporary cessation of active hostilities.” The objection is on the ground that neither of the two documentary sources referred to by the Prosecution support that assertion. The Defence is quite correct in its objection. The clause complained of is without a source and would appear to be disputable. As such, it cannot be made the subject of judicial notice. However, the signing of the peace agreement is an historical fact, and we therefore take judicial notice of the fact that: On 30 November 1996, Foday Saybana Sankoh and Ahmed Tejan Kabbah, President of the Republic of Sierra Leone, signed a Peace Agreement in Abidjan, Ivory Coast. viii) Fact H: However, the active hostilities thereafter recommenced.” 41. This is an historical fact well supported by reliable sources and is not contested by the Defence. Accordingly, we take judicial notice of Fact H. ix) Fact I: The AFRC was founded by members of the Armed Forces of Sierra Leone who seized power from the elected government of the Republic of Sierra Leone via a coup d’etat on 25 May 1997. Soldiers of the Sierra Leone Army (SLA) comprised the majority of the AFRC membership 42. The Prosecution refers us to various resolutions of the Security Council, reports of non-government organizations and Sierra Leone Gazettes issued by the AFRC. 43. Regardless of these sources, the Defence objects to Fact I being judicially noticed on the grounds that it “relates (in)directly to the alleged criminal responsibility of the Accused. Part of the Prosecution’s theory is that the Accused were allegedly involved in staging a coup against the President and to have ousted the President government (sic), to have been members of the following governing body.” 44. We are of the opinion that Fact I does not directly or indirectly make any allegations or implications of fact against any of the accused. It is an historical fact beyond reasonable dispute and we take judicial notice of it. interlocutory decisions – trial chamber 643 x) Fact J: On 25 May 1997, JOHNNY PAUL KOROMA a.k.a JPK became the leader and Chairman of the ARFC 45. This is an historical fact not disputed by the Defence and we take judicial notice of it. xi) Fact K: The AFRC Forced (sic) were commonly referred to as Junta by the population of Sierra Leone 46. The Defence objects to this fact being judicially noticed for a number of reasons. Firstly, it says that “the use of the term ‘commonly’ by itself related to a certain level of vagueness.” Next, it says that in Fact M (below), the Prosecution uses the word “Junta” to describe the combined forces of the AFRC and the RUF, so that both Facts are imprecise as to the exact meaning thereof. Lastly, the Defence says that “the term ‘Junta’ has a certain meaning within the Prosecution’s theory on alleged criminal responsibility of the Accused.” 47. The Defence has offfered no explanation of why it regards the use of the word ‘commonly’ as “relating to a certain level of vagueness.” We fĳind that this objection is itself vague. Moreover, the Defence’s other objections are misdirected, since the meaning of the word ‘Junta’ is not the issue. The issue is whether the AFRC forces were commonly referred to as ‘Junta’ by the population. The Prosecution is not asking the Trial Chamber to take judicial notice of the meaning of the word. 48. However, the sources relied upon by the Prosecution23 do not, in our opinion, establish conclusively that the word “Junta” was commonly used by the population to refer to the AFRC forces. We fĳind that Fact K is not a fact of common knowledge and would appear to be a disputable fact that needs to be proved at trial. It follows that it cannot be judicially noticed. xii) Fact L: Shortly after the AFRC seized power, at the invitation of JOHNNY PAUL KOROMA, and upon the order of FODAY SAYBANA SANKOH, the leader of the RUF, the RUF formed an alliance with the AFRC 49. The Defence objects to judicial notice being taken of this fact on the ground that “it relates to the allegations against the Accused’s (sic) purported criminal responsibility. The indictment against the Accused mentions the existence of a

23 UNHCR Report on Atrocities Committed Against the Sierra Leone Population, UNHCR Conakry Branch Offfĳice, 28 January 1999, Victim Reports Cases 1–38; Human Rights Watch, “Sowing Terror, Atrocities Against Civilians in Sierra Leone” Vol.10, No.3(A) July 1998 p. 18, fn25, p. 20, 23; Human Rights Watch, “Getting Away with Murder, Mutilation and Rape” Vol.11, No.3(A) June 1999, pp. 10–41. 644 part ii joint criminal enterprise between the RUF and the AFRC. This statement relates directly to that specifĳic allegation …” In addition, the Defence argues that the meaning of the word “alliance” is vague and cannot be considered “common knowledge.” 50. We note that paragraphs 33, 34 and 35 of the Further Amended Consolidated Indictment allege that the AFRC, including the Accused, and the RUF participated in a joint criminal enterprise to commit the crimes mentioned therein, an allegation which is denied by the Defence. Fact L would therefore appear to offfend against one of the criteria for facts of common knowledge, that is, that “the facts do not attest to the criminal responsibility of the accused.”24 Accordingly, we fĳind that Fact L is not a fact of common knowledge and cannot be made the subject of judicial notice. xiii) Fact M: The AFRC/RUF Junta forces (Junta) were also commonly referred to as ‘Junta,’ ‘rebels,’ ‘soldiers’ ‘SLA,’ ‘ex-SLA,’ and ‘People’s Army’ by the population of Sierra Leone 51. The Defence repeats its arguments made in regard to Facts K and L above. In addition, the Defence submits that Fact M assumes an ‘alliance’ between the AFRC and the RUF, “which assumption will have to be proved through the legal proceeding.” We agree with this submission. We might add that we do not consider that the source materials relied upon by the Prosecution put Fact M beyond reasonable dispute in any event. For this reason and the reasons given under Fact L above, we fĳind that Fact M is not a fact of common knowledge and we decline to take judicial notice of it. xiv) Fact N: After 25 May 1997 coup d’etat, a governing body was created within the Junta that was the sole executive and legislative authority within Sierra Leone during the Junta 52. The Defence objects specifĳically to the phrase “during the Junta” on the basis that it does not specify any time frame. The Defence submits that, for that reason, the statement as such cannot be judicially noticed. 53. Not only is a time frame not specifĳied, but it is not clear whether the “Junta” is meant to be the Junta of the AFRC referred to in Fact K, or the Junta of the AFRC/RUF referred to in Fact M. 54. Fact N is obviously not beyond dispute and therefore cannot be a fact of common knowledge. We decline to take judicial notice of it.

24 Referred to in Fofana, para. 28. interlocutory decisions – trial chamber 645 xv) Fact O: The governing body included leaders of both AFRC and RUF 55. The Prosecution refers us to Public Notice No. 3 of 1997, published in the Sierra Leone Gazette dated 18 September (presumably 1997) and minutes of Emergency Council of the AFRC meeting held on 11 August 1997. 56. The Defence again objects on the ground that the fact in question relates to the allegations of criminal responsibility against the Accused, since the indictment specifĳies that they were members of the governing body. The specifĳic objection is that “[B]y admitting this statement as a judicially noticed fact, this would automatically imply that the Prosecution – if it can prove that the Accused were members of the governing body – does not have to prove separately that the Accused were leaders of the AFRC and the RUF.” We do not think that this follows, since it is not claimed that every member of the governing body was a leader of the AFRC or RUF, but only that the governing body included such leaders. 57. Nevertheless, we consider Fact O follows from and is dependent on judicial notice of Facts L, M, N above, and as we have ruled that those facts cannot be made the subject of judicial notice, it must follow that we cannot take judicial notice of fact O either. We fĳind that Fact O is not beyond dispute and is therefore not a fact of common knowledge that can be judicially noticed. xvi) Fact P: The Junta was forced from power by forces acting on behalf of the ousted government of President Kabbah on or about 14 February 1998. President Kabbah’s government returned in March of 1998.” 58. The Prosecution’s sources are a report of the Secretary General of the United Nations and on reports by UN bodies and NGOs. The Defence objects to the term “Junta,” referring to their submissions in Facts K, L, and M, but does not object to the remaining part of the statement. The use of the word “Junta” in Facts K and M (we can fĳind no reference to use of the term in Fact L) is in the context of a word said to be in common use by the population of Sierra Leone, whereas, here, it is used in a diffferent sense as the name of a body that was forced from power. We consider Fact P to be a statement of historical fact that is not open to reasonable dispute and, accordingly, we take judicial notice of it. xvii) Fact Q: After the Junta was removed from power, the ARFC/RUF alliance continued 59. The Defence objects to this Fact on the grounds that, fĳirstly, the term ‘AFRC/ RUF alliance’ is “highly disputable as it does not specify what the alliance would be”; secondly, that it does not specify how long the alliance continued; and thirdly, that the term ‘alliance’ may “serve to attest the alleged criminal responsibility of the Accused and/or the Prosecution’s theory.” 646 part ii

60. We refer to our views expressed at Facts L and M and decline to take judicial notice of Fact Q. xviii) Fact R: On or about 7 July 1999, FODAY SAYBANA SANKOH and Ahmed Tejan Kabbah signed a Peace Agreement in Lomé, Togo 61. The Defence quite properly does not raise any objection, and since this is a historical fact not open to reasonable dispute, we take judicial notice of it. 62. In respect of the alleged facts which we have declined to judicially notice – namely, Facts F, K, L, M, N, O and Q – we note that the source materials referred to by the Prosecution are all included in the Documents listed in Annex B. We turn now to consider the admissibility of the information contained in those documents under Rule 92bis.

Information Contained in Documents Listed in Annex B 63. The Prosecution has amended the relief sought in relation to the documents in Annex B in that it is no longer seeking to have the Trial Chamber take judicial notice of the facts in those documents. It now asks that the information contained in the documents be admitted pursuant to Rules 89(B) and (C) and 92bis as “information of facts that are both relevant to the allegations detailed in the Indictment and susceptible of confĳirmation.” According to the Prosecution, the majority of the documents originate from the United Nations and well-respected Non- Government Organizations, or are public documents, so that the information in them is “susceptible of confĳirmation” within the meaning of Rule 92bis. 64. In opposing the application, the Defence cites Rules 89(B) and (C) and 92bis and submits that: the Prosecution has not specifĳied “to which part of the Indictment the particular documents are alleged to be relevant.” It argues that “Rule 92bis requires ‘more specifĳicity’ and that this requirements cannot satisfĳied simply by stating that all the documents are relevant “to the Indictments.” 65. The Defence further submits that what was said by the Appeals Chamber in Fofana regarding documents sought to be judicially noticed, applies equally to documents sought to be admitted under Rule 92bis: [T]he proper procedure would be to extract from the resolutions or reports the factual propositions which a party wants the Court to notice. It will then be for the Trial Chamber, after considering any defence material, to decide whether the extracted proposition really is incontrovertible.25 66. The Defence points out that Annex B consists of 94 documents which the Prosecution claims are relevant, but that it is impossible for the Defence to answer

25 Fofana, para. 49. interlocutory decisions – trial chamber 647 such a claim unless the Prosecution specifĳies those parts of the documents which are alleged to be relevant. The Defence adds that unless the Prosecution specifĳies which parts of the documents are to be brought into evidence, it is possible that opinions, and not facts, will be admitted. We fĳind some merit in this submission. 67. The Prosecution has sought to have the documents admitted pursuant to Rules 89(B), 89(C) and 92bis.26 The general rules of evidence which the Trial Chamber must apply are contained in Rule 89, but here we are considering spe- cifĳically information in lieu of oral evidence, the admissibility of which is governed by Rule 92bis. We note, however, that even under the more general Rule 89(C), the Prosecution would need to specify what parts of the documents it seeks to tender as relevant evidence. 68. Rule 92bis provides: (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 confĳirmation. (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. 69. It is clear from this Rule that before the information can be admitted in evidence, the Trial Chamber must be able to form an opinion as to its relevance. It was said by the Appeals Chamber in Fofana that “The efffect 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 confĳirmation.” 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. It is for the trial chamber to decide whether the information comes in a form, or is of a kind, that is “susceptible of confĳirmation.” It follows, of course, from the fact that its reliability is “susceptible of confĳirmation,” that it is also susceptible of being disproved, or so seriously called into question that the court will place no reliance upon it” (emphasis added).27 The Appeals Chamber here was clearly referring to the reception of facts contained in documents, rather than the reception of the whole of the documents themselves.

26 See para. 8 of Prosecution’s Consequential Submissions. 27 Fofana, at para. 27. 648 part ii

70. The Appeals Chamber, in considering what information may be admitted into evidence under the Rule, held: “Rule 92bis permits facts that are not beyond dispute to be presented to the court in a written or visual form that will require evaluation in due course. A party which fails in an application to have a fact judicially noticed under Rule 94(A) may nonetheless be able to introduce into evidence the sources upon which it has relied under Rule 92bis and at the end of the trial the court may well conclude that the fact has been proved beyond reasonable doubt. The weight and reliability of such “information” admitted via Rule 92bis will have to be assessed in light of all the evidence in the case.”28 71. Annex B contains no less than 94 documents, ranging from UN Security Council Resolutions, Reports of the Secretary General, Reports of the UN Observer Mission in Sierra Leone (UNOMSIL), Reports of the UN Offfĳice for the Coordination of Humanitarian Afffairs, Miscellaneous UN Reports, Reports of Non-Governmental Organizations, Sierra Leone Offfĳicial Documents, other Public Documents, Maps, Peace Agreements, Treaties, and Reports of other Governments. We do not think that we are required by Rule 92bis to wade through this mountain of material trying to separate relevant facts from what are irrelevancies, opinions, and legal fĳind- ings, in order to admit into evidence only the information that satisfĳies the Rule. Instead, the Prosecution should have clearly indicated on each document the passages that we are being asked to consider on the question of relevance. 72. We agree with the comments of Robertson J. in Fofana (which apply to facts in documents, whether sought to be judicially noticed or admitted under Rule 92bis) that: “This mass of undigested paperwork should not be imposed upon the Trial Chamber and the Defence in such an undisciplined fashion” and that “[i]t must not become a practice in this Court.”29 73. Robertson J. also emphasised that there is a duty that rests upon a party seeking to introduce documents: “All relevant material is admissible, but that is not an invitation to parties to deluge the court with thousands of pages of NGO and UN reports. The wider admissibility provisions in the SCSL carry a concomi- tant duty on the parties to narrow the documentary material they seek to introduce and to identify only those passages which are of direct relevance to the case, however interesting or insightful other aspects of the report may be.”30 74. Since the Prosecution has not indicated on any of the 94 documents listed in Annex B the passages it claims to be relevant, we are unable to make any fĳinding as to whether the facts sought to be put into evidence (whatever they may be)

28 Fofana, at para. 27. 29 Fofana, Separate Opinion of Justice Robertson, at para. 30. 30 Fofana, Separate Opinion of Justice Robertson, at para. 31. interlocutory decisions – trial chamber 649 satisfy the requirements of Rule 92bis. We therefore rule that the information contained in the said documents is, at present, not in an admissible form. 75. Robertson J. in Fofana31 prescribed the following simple procedure, which we think the Prosecution should have followed: “Any party, whether prosecution or defence, that seeks to introduce a lengthy document must indicate in the margin the passages they claim to be relevant and indeed, if judicial notice under Rule 94(A) is sought, they must identify and set out as a proposition the fact which they want judicially noticed and direct the court’s attention to the assertion of that fact in any document that they present in pursuance of their application.” (The requirements of this procedure which relate to judicial notice do not, of course, apply to the issue with which we are presently concerned.)

V. Disposition

FOR THE FOREGOING REASONS, THE TRIAL CHAMBER PARTIALLY GRANTS THE MOTION AND DECIDES AS FOLLOWS: (1) Facts A, B, D, E, H, I, J, P and R qualify for judicial notice. (2) Facts C and G qualify for judicial notice in their judicially modifĳied form. (3) The alleged Facts F, K, L, M N, O and Q do not qualify for judicial notice. (4) The Motion in respect of Annex B is denied. However, the information contained in the documents in Annex B may be considered for admission under Rule 92bis once the procedure prescribed above and in Rule 92bis (C) has been complied with. Done at Freetown, Sierra Leone, this 25th day of October 2005.

31 Fofana, Separate Opinion of Justice Robertson, para. 30.

TRIAL CHAMBER II

Before: Justice Teresa Doherty, Presiding Judge Justice Richard Lussick Justice Julia Sebutinde Registrar: Mr. Lovemore Munlo Date: 25 October 2005 PROSECUTOR Against Alex Tamba Brima Brima Bazzy Kamara Santigie Borbor Kanu (Case No.SCSL-04-16-T)

DECISION ON PROSECUTION MOTION FOR A LOCUS IN QUO VISIT TO KARINA, BOMBALI DISTRICT, THE REPUBLIC OF SIERRA LEONE

TRIAL CHAMBER II (“Trial Chamber”) of the Special Court for Sierra Leone (“Special Court”), composed of Justice Teresa Doherty, presiding, Justice Richard Lussick and Justice Julia Sebutinde; SEISED of the Prosecution Motion For a Locus in Quo Visit to Karina, Bombali District, The Republic of Sierra Leone, fĳiled on 22 September 2005 (“Motion”); CONSIDERING also the Joint Defence Response to Prosecution Motion For a Locus in Quo Visit to Karina, Bombali District, The Republic of Sierra Leone, fĳiled on 3 October 2005 (“Response”); CONSIDERING also the Prosecution Reply to the Joint Defence Response to Prosecution Motion For a Locus in Quo Visit to Karina, Bombali District, The Republic of Sierra Leone, fĳiled on 7 October 2005 (“Reply”); NOTING the Order for a Written Representation From the Registrar Pursuant to Rule 33 on Security Measures for a Site Visit to Karina Town in the Bombali District of Sierra Leone, issued by the Presiding Judge on 10 October 2005 (“Order”); CONSIDERING also the Written Representation From the Registrar on Security Measures for a Site Visit to Karina Town in the Bombali District of Sierra Leone, fĳiled on 14 October 2005 and the Strictly Confĳidential Written Representa- tion From the Registrar on Security Measures for a Site Visit to Karina Town in the Bombali District of Sierra Leone, dated 14 October 2005 (“Registrar’s Representations”); MINDFUL of the provisions of Articles 14 and 17 of the Statute of the Special Court for Sierra Leone (“the Statute”) and of Rule 4, Rule 54 and Rule 89(B) and (C) of the Rules of Procedure and Evidence of the Special Court (“the Rules”); DECIDES the Motion based solely on the written submissions of the parties pursuant to Rule 73(A) of the Rules, as follows.

I. Submissions of the Parties

Motion 1. The Prosecution fĳiled this Motion towards the conclusion of its case-in-chief, pursuant to the provisions of Rule 4, Rule 54 and Rule 89(B) and (C) of the Rules requesting a locus in quo inspection of Karina Town in the Bombali District of Sierra Leone. The Prosecution observed that the Trial Chamber has hitherto heard testimonial evidence, unchallenged in cross-examination, that the attack upon Karina, and specifĳically the killing, amputations, burning of houses and abduction of civilians alleged to have occurred there were ordered by the fĳirst Accused in the presence of the second and third Accused, and that all three Accused participated interlocutory decisions – trial chamber 653 in the crimes alleged to have occurred in Karina. The Prosecution submitted that a site visit to Karina is relevant to all counts in the indictment and to the criminal responsibility of the Accused under Article 6(1) and 6(3) of the Statute and would greatly assist the Trial Chamber in assessing the testimonial evidence. 2. The Prosecution argued further that although the crimes are alleged to have taken place approximately seven years ago, there are still many physical reminders of the alleged crimes in Karina and that a site visit is the best and most expedient way to convey to the Trial Chamber the necessary information regarding “the environs, spatial confĳiguration, and physical character of the locations of alleged criminal acts, which information cannot be adequately conveyed through the presentation of oral testimony or topographical maps” alone. 3. The Prosecution submitted further that a site visit to Karina would be helpful in the evaluation of evidence relating to other rural parts of the country where similar crimes are alleged to have taken place, in so far as the site visit will provide the Trial Chamber with fĳirst hand experience of a small, rural Sierra Leonean village. 4. The Prosecution argued that during the proposed site visit the Trial Chamber has powers under Rule 4 of the Rules to “exercise their functions away from the Seat of the Court, if so authorized by the President” and pursuant to Rule 54 of the Rules “to issue such orders as may be necessary for the preparation or conduct of the trial.” The Prosecution argued further that the proposed site visit would not be prohibitive in terms of time, security arrangements, cost or travel and could be completed in one working day thereby causing no delay in the trial. 5. The Prosecution proposed that the site visit team would comprise the Judges of the Trial Chamber as well as representatives of the Prosecution and Defence teams and necessary security and support stafff only. In support of the Motion the Prosecution cited several cases from the International Criminal Tribunal for Rwanda (ICTR) and the International Criminal Tribunal for the Former Yugoslavia (ICTY) including the Prosecutor v. Bagilishema,1 Prosecutor v. Bagosora et al.,2 Prosecutor v. Simba,3 Prosecutor v. Brdjanin.4 The Prosecution also relied upon the Trial Chamber’s earlier decision in the Prosecutor v. Brima et al.5

1 Prosecutor v. Bagilishema, Case No. ICTR-95-1A-T, Judgment, 7 June 2001. 2 Prosecutor v. Bagosora et al., Case No. ICTR-98-41-T, Decision on Prosecutor’s Motion for Site Visits in the Republic of Rwanda, 29 September 2004. 3 Prosecutor v. Simba, Case No. ICTR-01-76-T, Decision on the defence request for site visits in Rwanda. 4 Prosecutor v. Brdjanin, Case No. IT-99-36, Status Conference Script, 24 March 2004. 5 Prosecutor v. Brima, Kamara, Kanu, Case No. SCSL-04-16-T, Decision on Confĳidential Joint Defence request to Inspect Locus in Quo concerning the Evidence of Witness TF1-024, 16 June 2005. 654 part ii

Response 6. The Defence opposed the Motion on the grounds that a site visit to Karina is not necessary for or instrumental to the discovery of the truth or the determination of the trial. The Defence argued that any evidence relating to “the environs, spatial confĳiguration, and physical character of the locations of alleged criminal acts” should have been adduced during the viva voce testimony of the Prosecution witnesses and not afterwards. 7. The Defence argued further that a site visit to Karina at this stage of the proceedings, in particular after having heard the relevant Prosecution witnesses, would seriously infringe on the rights of the Accused to efffectively cross-examine those witnesses with regard to any new information that may arise in the course of the visit, as they cannot be recalled. 8. The Defence argued further that Karina is neither representative of other rural villages in Sierra Leone nor are the “physical reminders of the alleged crimes in Karina” replicated in other villages. A site visit may therefore give the Trial Chamber an erroneous impression that all other villages in Sierra Leone are like Karina. 9. The Defence argued that the timing of the proposed site visit namely, after the close of the Prosecution case, will unfairly prejudice the Defence Case. The Defence argued that they intend to challenge and contradict the account of events in Karina as given by the Prosecution witnesses by adducing evidence to challenge the alleged role of the Accused persons in the attack on Karina, particularly during the alleged massacre at Karina, and to the efffect that at the time of the attack the fĳirst Accused had been detained by forces under the command and control of the RUF. The Defence submit that the most propitious time for such a visit ought to be at a time when both the Prosecution and the Defence have closed their respective cases. 10. The Defence submitted further that inconsistencies exist in the testimonies of the Prosecution witnesses’ account of events in Karina which cannot be fairly and defĳinitively resolved by the proposed site visit and in the circumstances of these conflicting accounts the proposed visit will unfairly prejudice the case against the Accused persons. 11. In the alternative, the Defence request that in the event that the Motion is granted, the Defence should be allowed to re-cross-examine the particular witnesses who testifĳied-in-chief pertaining specifĳically to Karina, regarding the results and assessment of the site visit. Reply 12. The Prosecution submitted that in the unlikely event that signifĳicant new evidence emerges during the site visit, the Defence may apply for leave to recall interlocutory decisions – trial chamber 655 any witnesses for further cross-examination, upon showing good cause. The Prosecution reiterated that the evidence regarding the layout of Karina, its construction and environs is vital to the proper adjudication of the events in Karina and assessment of the evidence already before the court, and that this evidence can only be conveyed through fĳirst hand observation. The Prosecution also argued that professional judges are able to put their observations of Karina into proper scope and perspective without making impermissible assumptions or inferences.

Registrar’s Representations 13. Pursuant to the Trial Chamber’s Order the Registrar submitted that whilst adequate logistical arrangements can be made to facilitate the site visit to Karina, there are security concerns that cannot adequately be addressed.

II. Deliberations

The Applicable Law 14. The Rules do not specifĳically provide for site inspections. However, Rule 54 of the Rules generally empowers the Trial Chamber: At the request of either party or on its own motion, to issue such orders, summonses, subpoenas, warrants and transfer orders as may be necessary for the purposes of an investigation or for the preparation or conduct of the trial. 15. Rule 89(B) of the Rules enjoins the Trial Chamber to “apply rules of evidence that will best favour a fair determination of the matter before it, and are consonant with the spirit of the Statute and the general principles of law”; while Rule 89(C) of the Rules permits the Trial Chamber to admit “any relevant evidence.” 16. The Trial Chamber is of the opinion therefore that it generally has power pursuant to the above Rules, to order site inspections where necessary. Article 10 of the Agreement Between the United Nations and the Government of Sierra Leone on the Establishment of a Special Court for Sierra Leone provides that the Special Court shall have its seat in Sierra Leone. Consequently, Rule 4 of the Rules which permits the Trial Chamber to “exercise their functions away from the Seat of the Special Court if so authorised by the President” is inapplicable in the circumstances since Karina Town, the site of the proposed visit, is in Sierra Leone. 17. This Trial Chamber has previously ruled that whilst “the need for a site inspection has to be assessed in view of the particular circumstances of each trial,” the Chamber will not undertake a site inspection unless it is shown that the 656 part ii inspection would be “instrumental in the discovery of the truth and the determination of the matter before the Trial Chamber.”6 18. The Trial Chamber also fĳinds jurisprudence from other international tribunals in this regard quite instructive. For example the International Criminal Tribunal for Rwanda (ICTR), whose Rules are similar to those cited above, has ruled that it would not undertake a site inspection which “though informative, would not be instrumental in the discovery of the truth and the determination of the matter before it.”7 In another instance the ICTR declined to undertake a site inspection where it was considered fĳinancially and logistically unfeasible to do so.8 In other instances the ICTR has ruled that the most appropriate time for a site inspection is “at the end of the presentation of both the Prosecution and Defence cases.”9 19. The International Criminal Tribunal for the Former Yugoslavia (ICTY) took the view that a site inspection should only take place in the presence of the accused unless the accused has waived his right to be present. The Tribunal then went on to decline a proposed site inspection on the grounds that the presence of the Accused in Sarajevo during a visit by the Trial Chamber would pose a considerable security risk for the Parties and accompanying stafff, [and] that it would be virtually impossible to guarantee the safety of the Accused during the visit, considering the charges brought against him, his former position in the VRS and the locations to be visited.10 In addition the Trial Chamber observed that although the proposed site visit was intended to acquaint the Trial Chamber with certain locations in Sarajevo and its surroundings, the Trial Chamber found that those places were described by witnesses, that photographs and maps of the locations were exhibited, that videos were played during the trial and that “such visualisation was of substantial assistance to the Trial Chamber in its process of adopting an image of the terrain.”11 The Trial Chamber also considered that denying the Prosecution Motion would not afffect the rights of the accused to a fair and expeditious trial, nor would it adversely afffect the Trial Chamber’s ability to try the case.

6 Prosecutor v. Brima, Kamara, Kanu, Case No. SCSL-2004-16-T, Decision on Confĳidential Joint Defence Request to Inspect Locus in Quo Concerning Evidence of Witness TF1-024, 16 June 2005, para. 6, 7. 7 Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Decision on the Defence Motion Requesting an Inspection of the Site and the Conduct of a Forensic Analysis, 17 February 1998, para. 8. 8 Prosecutor v. Simba, Case No. ICTR-01-76-T, Decision on the Defence Request for Site Visits in Rwanda, 31 January 2005, para. 3. 9 Prosecutor v. Ndayambaje et al., Case No. ICTR-98-42-T, Decision on Prosecutor’s Motion for Site Visits in the Republic of Rwanda under Rules 4 and 73 of the Rules of Procedure and Evidence, 23 September 2004, para. 14–15; Prosecutor v. Bagosora et al., Case No. ICTR-98-41-T, Decision on Prosecutor’s Motion for Site Visits in the Republic of Rwanda, 29 September 2004, para. 3. 10 Prosecutor v. Galic, Case No. IT-98-29-T, Trial Chamber Judgment, 5 December 2003, para. 774. 11 Ibid. interlocutory decisions – trial chamber 657

20. Applying the above guidelines to the present case, we note that while the Prosecution would on the one hand, like the proposed site inspection of Karina conducted at the close of their case, the Defence would on the other, prefer that such an inspection be conducted at the conclusion of both the Prosecution and Defence cases. We also note that neither of the parties has referred to the presence of the Accused persons during such a site visit. The right of an accused person to be tried in his presence is guaranteed by Article 17(4)(d) of the Statute. Accordingly, the Trial Chamber is of the view that a site inspection should only take place in the presence of each of the Accused persons unless the Accused have expressly waived their right to be present, which is not the case here. 21. We also note the Registrar’s undertaking that adequate logistical arrangements are available in order to enable the Trial Chamber to complete the proposed site inspection to Karina within one day. We are concerned however, that the presence of the Accused in Karina during such a visit, is likely to pose a considerable security risk for the parties and accompanying stafff and that the security arrangements available may not adequately guarantee the safety and security of the Accused persons during such a visit. 22. In addition we note that although the proposed site visit is intended to acquaint the Trial Chamber of “the environs, spatial confĳiguration, and physical character of the locations within Karina Town and its environs,” a number of Prosecution witnesses have already given graphic testimony describing scenes and locations at Karina and its environs, and maps have been exhibited to assist the Trial Chamber in visualising the scene or scenes of the alleged crimes. 23. In the premises we are of the view that a site inspection while perhaps informative, would not be instrumental in the discovery of the truth and the determination of the matter before us. FOR ALL THE ABOVE REASONS, THE TRIAL CHAMBER DISMISSISES the Motion. Done at Freetown, Sierra Leone, this 25th day of October 2005.

TRIAL CHAMBER II

Before: Justice Teresa Doherty, Presiding Judge Justice Richard Lussick Justice Julia Sebutinde Registrar: Lovemore Munlo Date: 25 October 2005 PROSECUTOR Against Alex Tamba Brima Brima Bazzy Kamara Santigie Borbor Kanu (Case No.SCSL-04-16-T)

DECISION ON JOINT DEFENCE MOTION FOR LEAVE TO RECALL WITNESS TF1-023

Office of the Prosecutor: Defence Counsel for Alex Tamba Brima: Luc Côté Kojo Graham Lesley Taylor Glenna Thompson Defence Counsel for Brima Bazzy Kamara: Andrew Daniels Mohamed Pa-Momo Fofanah Defence Counsel for Santigie Borbor Kanu: Geert-Jan Alexander Knoops Carry Knoops Abibola E. Manly-Spain 660 part ii

TRIAL CHAMBER II (“Trial Chamber”) of the Special Court for Sierra Leone (“Special Court”), composed of Justice Teresa Doherty, presiding, Justice Richard Lussick and Justice Julia Sebutinde; SEISED of the Joint Defence Motion for Leave to Recall Witness TF1-023 fĳiled on 28 September 2005 (“Motion”); NOTING the Prosecution Response to Joint Defence Motion for Leave to Recall Witness TF1-023 fĳiled on 30 September 2005 (“Response”); NOTING the Defence fĳiled no Reply to the Prosecution Response; DECIDES the Motion based solely on the written submissions of the parties pursuant to Rule 73(A) of the Rules of Procedure and Evidence of the Special Court (“ Rules”).

I. Submissions of the Parties

Motion 1. The Defence recall that on 10 March 2005, witness TF1-023 in the course of examination-in-chief alleged that she had been threatened by members of the families of the accused. Following submissions of the parties, the Trial Chamber ordered, inter alia, the suspension of an investigator retained by the Defence team of the 1st Accused Alex Tamba Brima. 2. Defence Counsel did not cross-examine witness TF1-023 and now apply to do so relying on Rule 54 of the Rules of Evidence and Procedure. 3. The Defence submit that the allegations against the Investigator, Mr. Samura, were sufffĳiciently serious to cast doubt on the information he had provided to the Brima Defence and shared with the Joint Defence.1 They add that fĳinding a suitable replacement for Mr. Samura took some time. 4. They needed to “validate the information of the investigator under suspicion” and to “cross check” for “quality and veracity.” 5. The Defence submit that witness TF1-023 testifĳied using names which the Prosecution say are names ascribed to Brima and Kanu and the Defence require to cross-examine that evidence. 6. As the behaviour of investigator Samura was not in any way condoned by the Defence, the Defence believe that any impediments to the cross-examination of

1 “Motion,” para. 5. interlocutory decisions – trial chamber 661 the witness will violate the rights of the accused and impair the fairness of the trial.2

Response 1. The Prosecution refers to Rules 85(A) and 90(F) of the Rules as applicable to this issue.3 It also cites as relevant jurisprudence from the ad hoc international tribunals including The Prosecutor v. Bagasora.4 In that case, the Prosecution sought leave to recall its own witnesses. It was held: A party seeking to recall a witness must demonstrate good cause, which previous jurisprudence has defĳined as a substantial reason amounting in law to a legal excuse for failing to perform a required act. In assessing good cause, the Chamber must carefully consider the purpose of the proposed testimony as well as the party’s justifĳication for not offfering such evidence when the witness originally testifĳied. The right to be tried without undue delay as well as the concerns of judicial economy demand that recall should be granted only in the most compelling circumstances where the evidence is of signifĳicant probative value and not of a cumulative nature. For example, the Chamber has inti- mated in this case that the recall of a witness might be appropriate where a party demonstrates prejudice from an inability to put signifĳicant inconsistencies to a witness which arise from previously unavailable Rwandan Judicial documents. 2. This approach was followed by the Trial Chambers in Prosecutor v. Simba5 and Prosecutor v. Brdjanin:6 3. The Prosecution argues that the Joint Defence Motion has failed to demonstrate good cause why witness TF1-023 should be recalled for cross-examination. It further submits that, notwithstanding that the arguments made in the Joint Defence Motion are done so jointly, it is incumbent upon the Trial Chamber to consider whether or not each accused has individually demonstrated good cause, as each Defence Counsel made a choice on behalf of his client to decline to cross- examine the witness.7 4. The Prosecution argues that the allegation against Mr. Samura was that he illegally disclosed the identity of a witness, and not that he had discharged his information gathering function improperly or ineptly. Thus, the Defence has not adequately explained the need to review the investigator’s entire investigations.8

2 “Motion,” paras. 8-9. 3 “Response,” para. 10. 4 “Response,” para. 11 citing Prosecutor v. Bagasora et al., ICTR-98-41-T, Decision on the Prosecution Motion to recall Witness Nyanjwa, 29 September 2004, para. 6. 5 “Response,” para. 12, citing Prosecutor v. Simba, ICTR-01-76-T, Decision on the Defence Motion to Recall Witness KEL for Further Cross-Examination, 28 October 2004, para. 5. 6 “Response,” para. 13, citing Prosecutor v. Brdjanin, IT-99-36-T, Decision on Motion for Relief from Rule 68 Violations by the Prosecutor and for Sanctions to be imposed pursuant to Rule 68bis and Motion for Adjournment while Matters Afffecting Justice and a Fair Trial can be resolved, 30 October 2002, para. 26. 7 “Response,” para. 14. 8 “Response,” para. 16. 662 part ii

Indeed, the Prosecution notes that on 10 March 2005 the allegations against the investigator “produced a spirited defence” of Mr. Samura by the then Counsel for Brima. 5. The Prosecution notes that Defence Counsel have stated on numerous occasions, that they share information and confer with each other. It remarks that the Defence has not suggested that information acquired by other Joint Defence investigators required validation.9 The Prosecution also contends that material used in a cross-examination derives from various sources.10 6. Moreover, the Prosecution argues that any arguments by the Brima team regarding investigator Samura do not hold for the other two defence teams.11 Notably, Counsel for Kanu has not explained how “paralysation (sic) of an investigator for one Defence Counsel also afffects the ability of other Defence Counsel to cross examine efffectively.”12 7. The Prosecution argues that the alleged behaviour of the investigator did not prejudice the accused. The fact that Witness TF1-023 has not been cross-examined was a forensic choice made by each Defence Counsel13 and other options could have been pursued by Counsel. 8. The Prosecution contends that the Kamara Defence has no grounds for having refused to cross-examine the witness since the accused Kamara was not mentioned in any way by the witness.14 9. The Prosecution further submits that the issue of identifĳication of the accused Brima and Kanu was an issue raised by Defence Counsel in their pre-trial briefs. It is “to be expected that Counsel for the fĳirst and third accused would challenge all such identifĳication evidence.” In any event, there is no evidence about “anyone named Santigie Kanu.” The Prosecution submits that the motion should be dismissed.

II. Deliberations

10. The Defence rely on Rule 54 which provides: At the request of either party or its own motion, a Judge or Trial Chamber may issue such orders, summonses, subpoenas, warrants and transfer orders as may be necessary for the purposes of an investigation or for the preparation or conduct of the trial.

9 “Response,” para. 18. 10 “Response,” para. 19. 11 “Reponse,” para. 20. 12 “Response,” para. 21. 13 “Response,” para. 24. 14 “Response,” paras. 28-29. interlocutory decisions – trial chamber 663

11. They do not specify which of the “purposes” referred to in Rule 54 is applicable. They state: The Defendants are entitled to a fair trial and the cross examination of all witnesses particularly those whose evidence touches and concerns particular accused persons. 12. They do not refer to any law or precedent to support this submission nor do they address on the matters the Trial Chamber must consider in its deliberations. 13. The Prosecution rely on Prosecutor v. Bagosora and the citation quoted above and submit: it is incumbent upon the Trial Chamber to consider whether or not each accused has individually demonstrated good cause, as each Defence Counsel made a choice on behalf of his client to decline to cross examine the witness.15 14. The ICTR decision shows that a party must demonstrate “a substantial reason amounting in law to a legal excuse for failing to perform a required act.”16 15. A Chamber must consider: a. the purpose of the proposed testimony; b. the party’s justifĳication for not offfering the evidence (in the instant case for not cross-examining) when the witness originally testifĳied; c. the right of the accused to be tried without undue delay; d. judicial economy. 16. We agree with the proposition in Prosecutor v. Bagosora that leave should only be granted in the most compelling circumstances.17 17. It is clear from Defence submissions that the purpose of recalling the witness is to challenge identifĳication evidence and we agree with the Prosecution that the Defence were aware that identifĳication of the accused was an issue both during examination-in-chief of witness TF1-023 and at the pre-trial brief stage. 18. The Defence justify their decision not to cross-examine the witness stating that they fĳirst needed to verify and cross-check the information provided to them by their investigator. However, this applies only to the fĳirst accused and, to a lesser extent the second accused, but not the third accused. We consider that the defence argument that they needed to verify and cross-check information is a weak one

15 Prosecutor v. Bagasora et al., ICTR-98-41-T, Decision on the Prosecution Motion to recall Witness Nyanjwa, 29 September 2004. 16 Ibid., para. 6. 17 Ibid. 664 part ii particularly when seen in the lapse of some seven months since they formed the view that such verifĳication was necessary. 19. As Defence is making this application, it must be taken to have accepted any delay that could result from such an application. However, such an acceptance does not relieve the Trial Chamber from its duty to ensure that the Trial is conducted without undue delay and with judicial economy. 20. We consider there is merit in the Prosecution submission that the Defence has failed to show good cause and that Counsel erred when they refused to cross- examine the witness when they were accorded an opportunity to do so, in accordance with Rule 85(B) at the end of examination-in-chief. 21. However, we consider that there is a further aspect that arises from Counsel’s decision not to cross-examine the witness. We ask ourselves if the decision and failure to cross-examine prevents the accused from having a fair trial. 22. The attitude of Courts to errors by Counsel has varied. In cases such as Boodran v. the State the Privy Council spoke of “failure of so fundamental a nature” that the trial was not fair.18 23. In the European Court of Human Rights Case Daud v. Portugal, the test applied was whether failure of Counsel was such that it prevented the accused from having a fair trial. In the that case the ECHR went further imposing a duty upon courts to “[inquire] into the manner in which the lawyer was fulfĳilling his duty …,” when alerted to possible defĳiciencies, and stated that“the Court should not have remained passive.”19 24. We consider Article 17(2) and 17(4)(e) of the Statute which provide as follows: 17(2) The accused shall be entitled to a fair and public hearing, subject to measures ordered by the Special Court for the protection of victims and witnesses.” 17 (4) In the determination of any charge against the accused, pursuant to the present Statute, he or she shall be entitled to the following minimum guarantees, in full equality”; (e) To examine, or have examined, the witnesses against him or her and to obtain the attendance and examination of witnesses on his or her behalf under the same conditions as witnesses against him or her. 17. We are of the opinion that Counsels’ failure to cross-examine the witness has prejudiced the rights of the accused enshrined in these provisions.

18 Boodram v. The State, Privy Council, 1 Cr. App. R. 12, 10 April 2001. 19 Daud v. Portugal, 11/1997/795/997, Judgment, 21 April 1998. interlocutory decisions – trial chamber 665

18. We are also mindful of the duty imposed on the Trial chamber by Rule 26bis to conduct the hearing with full respect for the rights of the accused and due regard for the protection of victims and witnesses. 19. For this restricted reason, and taking into account the exceptional circumstances that led to Counsel’s failure to cross-examine, we grant the motion. Done at Freetown, Sierra Leone, this 25th day of October 2005.

TRIAL CHAMBER II

Before: Justice Teresa Doherty, Presiding Judge Justice Richard Lussick Justice Julia Sebutinde Interim Registrar: Lovemore Munlo Date: 18 November 2005 PROSECUTOR Against Alex Tamba Brima Brima Bazzy Kamara Santigie Borbor Kanu (Case No.SCSL-04-16-T)

DECISION ON PROSECUTION TENDER FOR ADMISSION INTO EVIDENCE OF INFORMATION CONTAINED IN NOTICE PURSUANT TO RULE 92bis

Office of the Prosecutor: Defence Counsel for Alex Tamba Brima: Luc Côté Kojo Graham Jim Johnson Glenna Thompson Wambui Ngunya Defence Counsel for Brima Bazzy Kamara: Andrew Daniels Mohamed Pa-Momo Fofanah Defence Counsel for Santigie Borbor Kanu: Geert-Jan Alexander Knoops Carry Knoops Abibola E. Manly-Spain 668 part ii

TRIAL CHAMBER II (“Trial Chamber”) of the Special Court for Sierra Leone (“Special Court”), composed of Justice Teresa Doherty, presiding, Justice Richard Lussick and Justice Julia Sebutinde; SEISED of the Prosecution Notice Pursuant to Rule 92bis to Admit Information into Evidence (“Notice”); SEISED of the Joint Defence Objections to Prosecution Notice Pursuant to Rule 92bis to Admit Information into Evidence, fĳiled 15 November 2005; NOTING the oral application of the Prosecution on 16 November 2005 to tender the information and documents submitted in their Notice; MINDFUL OF the Trial Chamber’s Decision on Prosecution’s Motion for Judicial Notice and Admission of Evidence, dated 25 October 2005;1 CONSIDERING the Appeals Chamber’s Fofana – Decision on Appeal against “Decision on Prosecution’s Motion for Judicial Notice and Admission of Evidence,” dated 16 May 2005 (“Appeals Decision on Judicial Notice”);2 NOTING that Rule 89 of the Rules provides that: (A) The rules of evidence set forth in this Section shall govern the proceedings before the Chambers. The Chambers shall not be bound by national rules of evidence. (B) In cases not otherwise provided for in this Section, a Chamber shall apply rules of evidence which will best favour a fair determination of the matter before it and are consonant with the spirit of the Statute and the general principles of law. (C) A Chamber may admit any relevant evidence. NOTING that Rule 92bis of the Rules 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 confĳirmation. (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. CONSIDERING that Rule 89(C) vests the Trial Chamber with discretionary power to admit any relevant evidence and that the Trial Chamber has repeatedly ruled

1 Prosecutor v. Brima, Kamara, Kanu, Case No. SCSL-04-16-PT, Decision on the Prosecution Motion for Judicial Notice and Admission of Evidence, 25 October 2005. 2 Prosecutor v. Norman, Kondewa, Fofana, Case No. SCSL-04-14-AR73, Fofana – Decision on Appeal against ‘Decision on Prosecution’s Motion for Judicial Notice and Admission of Evidence,” 16 May 2005. interlocutory decisions – trial chamber 669 that “evidence may be excluded because it is unreliable, but it is not necessary to demonstrate the reliability of the evidence before it is admitted.”3 NOTING the Appeals Chamber interpretation of Rule 92bis of the Rules: SCSL Rule 92bis is diffferent to the equivalent Rule in the ICTY and ICTR and deliberately so. The judges of this Court, at one of their fĳirst 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 efffect 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 confĳirmation.” 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.” 4 CONSIDERING that the reliability of the evidence is something to be considered by the Trial Chamber at the end of the trial when weighing and evaluating the evidence as a whole, in light of the context and nature of the evidence itself, including the credibility and reliability of the relevant evidence. CONFIRMING HOWEVER that when the Trial Chamber comes to consider the reliability of the present evidence it will disregard opinion evidence and any evidence which goes to the ultimate issue, or which draws any conclusions or inferences which the Trial Chamber will have to draw, or which makes any judgments which the Trial Chamber will have to make; NOTING that the Defence did not object to the admissibility of Documents 1, 2, 4, 7, 11, 12, 55, 56, 57, 58, 70, 78, 86, Communiqué (exhibit 57 from original Prosecution Proposed Exhibit list, fĳiled on 26 April 2004), as listed in Annex 1 to the Notice; FOR THE ABOVE REASONS the Trial Chamber partially grants the Prosecution application AND ORDERS AS FOLLOWS: 1. The information contained in the following documents satisfĳies the requirements of Rule 92bis and is admitted into evidence to the extent sought in Annex 1 to the Notice:

3 Prosecutor v. Brima, Kamara, Kanu, Decision on Joint Defence Application for Leave to Appeal from Decision on Defence Motion to Exclude all Evidence from Witness TF1-277, 2 August 2005, para. 6. 4 Prosecutor v. Norman, Kondewa, Fofana, Case No. SCSL-04-14-AR73, Fofana – Decision on Appeal against ‘Decision on Prosecution’s Motion for Judicial Notice and Admission of Evidence,” 16 May 2005, para. 26. 670 part ii

(a) Documents 1, 2, 4, 7, 11, 12, 13, 14, 15, 16, 17, 18, 19, 29, 32, 34, 35, 38, 45, 46, 52, 53, 54, 55, 56, 57, 58, 60, 70, 77, 78, 82, 83, 85, 86, 88, 89, and Communiqué Exhibit No. 57 from the original Prosecution Proposed Exhibit List, fĳiled on 26 April 2004; (b) Documents 26 and 31, on the condition that the Prosecution fĳiles the complete documents; (c) Document 81, on the condition that the Prosecution fĳiles a legible copy. 2. As regards Document 76, the information on pages 6, 12, 14 and 16 is admitted into evidence, but the information on page 2 relates to a period not relevant to the indictment (i.e. before 30 November 1996) and is therefore inadmissible and its tender as evidence is rejected. 3. As regards Document 79, Decrees 5/97 and 7/97 are admitted into evidence and Decree 1/97 is admitted into evidence on the condition that the Prosecution fĳiles the complete document. 4. As regards Exhibit No. 144 from the original Prosecution Proposed Exhibit List, fĳiled on 26 April 2004 (unedited video footage, 6 January 1999), since there is nothing in the video to indicate where it was taken and no sources are identifĳied, relevance cannot be established and its tender as evidence is therefore rejected. 5. The information admitted into evidence is allocated the Prosecution Exhibit numbers indicated in Annex A to this Order. Done at Freetown, Sierra Leone, this 18th day of November 2005. TRIAL CHAMBER II

Before: Justice Richard Lussick, Presiding Judge Justice Teresa Doherty Justice Julia Sebutinde Interim Registrar: Lovemore Munlo Date: 19 January 2006 PROSECUTOR Against Alex Tamba Brima Brima Bazzy Kamara Santigie Borbor Kanu (Case No.SCSL-04-16-T)

DECISION ON URGENT DEFENCE REQUEST UNDER RULE 54 WITH RESPECT TO FILING OF MOTION FOR ACQUITTAL

Office of the Prosecutor: Defence Counsel for Alex Tamba Brima: Jim Johnson Kojo Graham James Hodes Glenna Thompson Wambui Ngunya Marco Bundi Defence Counsel for Brima Bazzy Kamara: Andrew Daniels Mohamed Pa-Momo Fofanah Defence Counsel for Santigie Borbor Kanu: Geert-Jan Alexander Knoops Carry Knoops Abibola E. Manly-Spain 672 part ii

TRIAL CHAMBER II (“Trial Chamber”) of the Special Court for Sierra Leone (“Special Court”), composed of Justice Richard Lussick, presiding, Justice Teresa Doherty and Justice Julia Sebutinde; SEISED of the Urgent Joint Defence Request Under Rule 54 with Respect to Filing of Motion for Acquittal, fĳiled on 15 December 2005 (“Request”); NOTING the Prosecution Response to the Urgent Joint Defence Request Under Rule 54, fĳiled on 15 December 2005 (“Response”); CONSIDERING the Scheduling Order on Filing of a Motion for Judgement of Acquittal, dated 30 September 2005 (“Scheduling Order”) wherein the Trial Chamber ordered, inter alia, that “any Motion for Judgement of Acquittal shall be fĳiled by the Defence in writing within three weeks from the date that the Prosecution case closes”; NOTING that the Prosecution in the case of Prosecutor v. Alex Tamba Brima et al.1 formally closed its case on Monday 21 November 2005; NOTING that the Brima – Motion for Acquittal Pursuant to Rule 98 (“the Brima Motion”) and the Defence Motion for Judgement of Acquittal for the second Accused Brima Bazzy Kamara (“the Kamara Motion”) were both fĳiled on the 12 December 2005, within the time frame ordered by the Trial Chamber; NOTING that the Joint Legal Part of the Defence Motion for Judgement of Acquittal under Rule 98 (“Joint Legal Part”) and the Kanu – Factual Part of the Defence Motion for Judgment of Acquittal Under Rule 98 (“the Kanu Motion”) were both fĳiled on 13 December 2005, outside the time frame ordered by the Trial Chamber; NOTING that the specifĳic time limits for fĳiling the Motions for a Judgment for Acquittal were ordered by the Trial Chamber in the Scheduling Order thereby rendering the provisions of Rule 7(A) of the Rules of Procedure and Evidence (“the Rules”) and of Article 12 of the Practice Direction on Filing Documents Before the Special Court for Sierra Leone inapplicable; CONSIDERING however, that the Prosecution does not object to the Defence Request that the late fĳiling be accepted by the Trial Chamber CONSIDERING FURTHER that it is in the interests of justice to do so; ACCEPTS the late fĳiling of the Joint Legal Part and of the Kanu Motion pursuant to Rule 54 of the Rules. Done at Freetown, Sierra Leone, this 19th day of January 2005.

1 Case No. SCSL-2004-16-T. TRIAL CHAMBER II

Before: Justice Richard Lussick, Presiding Judge Justice Teresa Doherty Justice Julia Sebutinde Registrar: Mr. Lovemore Munlo Date: 31 March 2006 PROSECUTOR Against Alex Tamba Brima Brima Bazzy Kamara Santigie Borbor Kanu (Case No.SCSL-04-16-T)

DECISION ON DEFENCE MOTIONS FOR JUDGEMENT OF ACQUITTAL PURSUANT TO RULE 98

Office of the Prosecutor: Defence Counsel for Alex Tamba Brima: Christopher Staker Kojo Graham James C. Johnson Glenna Thompson Lesley Taylor Defence Counsel for Brima Bazzy Kamara: Karim Agha Andrew Daniels Nina Jorgenson Mohamed Pa-Momo Fofanah James R. Hodes Marco Bundi Defence Counsel for Santigie Borbor Kanu: Geert-Jan Alexander Knoops Carry Knoops Abibola E. Manly-Spain 674 part ii

CONTENTS

I. Procedural Background ...... 678

II. Applicable Standard Under Rule 98 of the Rules ...... 680

III. Locations in the Indictment Over Which the Defence Has Raised Issue ...... 683 Locations in Respect of Which the Prosecution Led no Evidence ...... 683 Locations the Names of Which are Spelt Diffferently ...... 685

IV. The “Greatest Responsibility” Requirement ...... 685 Applicable Law ...... 685 Submissions ...... 686 Deliberations ...... 687 Findings ...... 689

V. Elements of Crimes Against Humanity Pursuant to Article 2 of the Statute ...... 689

VI. Elements of Violations of Article 3 Common to the Geneva Conventions and of Additional Protocol II Pursuant to Article 3 of the Statute ...... 692

VII. Elements of Other Serious Violations of International Humanitarian Law Pursuant to Article 4 of the Statute ...... 694

VIII. Review of the Counts and Issues Raised ...... 695 1. Counts 1 and 2: Terrorising the Civilian Population and Collective Punishment ...... 695 Introduction ...... 695 1.1. Count 1: Acts of Terrorism (Article 3.d. of the Statute) ...... 696 Elements of the Crime ...... 696 Submissions...... 696 Findings ...... 698 1.2. Count 2: Collective Punishments (Article 3(b) of the Statute) ...... 698 Elements of the Crime ...... 698 Submissions...... 699 Findings ...... 700 interlocutory decisions – trial chamber 675

2. Counts 3, 4 and 5: Crimes Relating to Unlawful Killings ...... 700 Introduction ...... 700 2.1. Count 3: Extermination (Article 2.b. of the Statute) ...... 701 Elements of the Crime ...... 701 2.2. Count 4: Murder (Article 2.a. of the Statute) ...... 702 Elements of the Crime ...... 702 2.3. Count 5: Murder (Article 3.a. of the Statute) ...... 702 Elements of the Crime ...... 702 2.4. Submissions for Counts 3, 4 and 5 ...... 704 2.5. Findings for Counts 3, 4 and 5 ...... 713 General fĳindings ...... 713 Findings with regard to Count 3 (Extermination) ...... 714 Findings with regard to Count 4 (Murder) ...... 716 Findings with regard to Count 5 (Murder) ...... 717 3. Counts 6, 7, 8 and 9: Crimes Relating To Sexual Violence...... 718 Introduction ...... 718 3.1. Count 6: Rape (Article 2.g of the Statute) ...... 718 Elements of the Crime ...... 718 3.2. Count 7: Sexual Slavery and Any Other Form of Sexual Violence (Article 2.g. of the Statute) ...... 719 Elements of Sexual Slavery ...... 719 Elements of Any Other Form of Sexual Violence ...... 720 3.3. Count 8: Other Inhumane Act (Article 2.i of the Statute) ...... 720 Elements of the Crime ...... 720 3.4. Count 9: Outrages Upon Personal Dignity (Article 3.e. of the Statute) ...... 721 Elements of the Crime ...... 721 3.5. Submissions for Counts 6, 7, 8 and 9 ...... 721 3.6. Findings for Counts 6, 7, 8 and 9 ...... 728 Findings for Count 6 (Rape) ...... 728 Findings for Count 7 (Sexual Slavery and Any Other Form of Sexual Violence) ...... 729 Findings for Count 8 (Any Other Inhumane Acts) ...... 731 Findings for Count 9 (Outrages Upon Personal Dignity) ...... 732 4. Counts 10 And 11: Crimes Relating To Physical Violence ...... 732 Introduction ...... 732 4.1. Count 10: Mutilation (Article 3.a. of the Statute) ...... 733 Elements of the Crime ...... 733 4.2. Count 11: Other Inhumane Acts (Article 2.i. of the Statute) ...... 734 Elements of the Crime ...... 734 676 part ii

4.3. Submissions for Counts 10 and 11...... 735 4.4. Findings for Counts 10 and 11 ...... 739 General fĳindings ...... 739 Findings with regard to Count 10 (Mutilation) ...... 739 Findings with regard to Count 11 (Other Inhumane Acts) ...... 741 5. Count 12: Crimes Relating to Child Soldiers ...... 741 Introduction ...... 741 Elements of the Crime ...... 742 Submissions ...... 742 Findings ...... 744 6. Count 13: Abductions and Forced Labour ...... 744 Introduction ...... 744 Elements of the Crime ...... 745 Submissions ...... 746 Findings ...... 754 7. Count 14: Crimes Relating to Burning and Looting ...... 754 Introduction ...... 754 7.1. Count 14: Pillage (Article 3.f. of the Statute) ...... 754 Elements of the Crime ...... 754 Submissions...... 755 Findings ...... 759 7.2. Destruction by Burning of Civilian Property ...... 760 7.3. Looting ...... 761

IX. Individual Criminal Responsibility Under the Statute ...... 762 Introduction ...... 762 8. Individual Criminal Responsibility under Article 6.1 of the Statute ...... 763 8.1. Committing ...... 764 Submissions...... 764 Findings ...... 765 8.2. Planning ...... 766 Submissions...... 766 Findings ...... 767 8.3. Instigating ...... 768 8.4. Ordering ...... 768 Submissions...... 769 Findings ...... 770 8.5. Aiding and Abetting ...... 770 Submissions...... 770 Findings ...... 771 interlocutory decisions – trial chamber 677

9. Individual Criminal Responsibility by Participation in a Joint Criminal Enterprise ...... 772 Submissions...... 773 Findings ...... 775 10. Individual Criminal Responsibility under Article 6.3 of the Statute ...... 777 Submissions...... 778 Findings ...... 779

X. Disposition ...... 780 678 part ii

TRIAL CHAMBER II (“Trial Chamber”) of the Special Court for Sierra Leone (“Special Court”), composed of Justice Richard Lussick, presiding, Justice Teresa Doherty and Justice Julia Sebutinde; SEISED of the Joint Legal Part of the Defence Motion for Judgement of Acquittal Under Rule 98 fĳiled on 13 December 2005 (“Joint Legal Part”); the Brima Motion For Acquittal Pursuant to Rule 98 fĳiled on 12 December 2005 (“Brima Motion”); the Defence Motion for Judgement of Acquittal of the Second Accused, Brima Bazzy Kamara fĳiled on 12 December 2005 (“Kamara Motion”) and the Kanu Factual Part Defence Motion for Judgement of Acquittal Under Rule 98 fĳiled on 13 December 2005 (“Kanu Motion”); NOTING the Prosecution Response to Defence Motions For Judgement of Acquittal Pursuant to Rule 98, fĳiled on 23 January 2006 (“Response”); NOTING the Joint Legal Reply to Prosecution Response to Defence Motions For Judgement of Acquittal, fĳiled on 30 January 2006 (“Joint Defence Reply”); the Brima Reply to Prosecution Response to Defence Motions For Judgement of Acquittal, fĳiled on 30 January 2006 (“Brima Reply”); the Kamara Reply to Prosecution Response to Defence Motions For Judgement of Acquittal, fĳiled on 30 January 2006 (“Kamara Reply”); and the Confĳidential Kanu Reply to Prosecu- tion Response to Defence Motions For Judgement of Acquittal, fĳiled on 27 January 2006 (“Kanu Reply”); MINDFUL of the Scheduling Order on Filing of a Motion for Judgement of Acquittal issued by the Trial Chamber on 30 September 2005;1 MINDFUL of the provisions of the Statute of the Special Court for Sierra Leone (“the Statute”), in particular Articles 1, 2, 3, 4, 5, 6 thereof and the provisions of the Rules of Procedure and Evidence of the Special Court (“the Rules”), in particular Rule 98 as amended on 14 May 2005; MINDFUL of the provisions of international instruments on International Humanitarian Law relating to armed conflict, war crimes and crimes against humanity; HEREBY DECIDES AS FOLLOWS based solely on the written submissions of the parties pursuant to Rule 73(A) of the Rules.

I. Procedural Background

1. Alex Tamba Brima, Brima Bazzy Kamara and Santigie Borbor Kanu, the three Accused persons in this case, are jointly indicted and tried on a fourteen-Count

1 Prosecutor v. Alex Tamba Brima et al., SCSL-04-16-T, Scheduling Order on Filing of a Motion for Judgement of Acquittal, 30 September 2005. [“Scheduling Order”]. interlocutory decisions – trial chamber 679

Indictment that alleges offfences relating to Crimes Against Humanity, Violations of Article 3 Common to the Geneva Conventions and to Additional Protocol II and other Serious Violations of International Humanitarian Law, in violation of Articles 2, 3, and 4 of the Statute of the Special Court for Sierra Leone.2 2. Following indications that each of the Defence teams intended to fĳile a motion for Judgement of Acquittal at the close of the case for the Prosecution, the Trial Chamber on 30 September 2005 issued a Scheduling Order containing guidelines for the fĳiling of a Motion for Judgement of Acquittal pursuant to Rule 98 of the Rules.3 3. The Prosecution formally closed its case on 21 November 2005 after calling fĳifty-nine witnesses including three expert witnesses, and tendering 80 exhibits in evidence. 4. Following the closure of the case for the Prosecution, the Defence fĳiled the Brima Motion and the Kamara Motion on 12 December 2005 within the time prescribed by the Trial Chamber. The Kamara Motion exceeded the page limit prescribed in the Scheduling Order by one and a half pages. The Kanu Motion and the Joint Legal Part were fĳiled on 13 December 2005 outside that time. In its Decision on Urgent Defence Request Under Rule 54 With Respect to Filing of Motion for Acquittal4 the Trial Chamber accepted the late fĳiling of both the Kanu Motion and the Joint Legal Part in the interests of justice. 5. Similarly, in the interests of justice the Trial Chamber accepts the pleadings in the Kamara Motion. We would however, point out the correct procedure for cor- recting or curing a defĳicient fĳiling and insist that in future, the Court Management Section should strictly comply with this procedure rather than accepting the defĳi- cient fĳiling as they did in this case. Article 11 of the Practice Direction on Filing of Documents Before the Special Court for Sierra Leone provides as follows: “Article 11–Deficient Submissions (A) The Court Management Section shall be responsible for verifying compliance with the requirements laid down in Articles 4 to 9 of this Practice direction. (B) The Court Management Section shall inform the Party, State, organisation or person who submitted a defĳicient document of the defĳiciency and request that it be corrected. The Court Management Section shall fĳile the document only after the mistakes have been corrected. If the corrected document is fĳiled outside the time limits set out in the Rules as a result of the defĳiciency, such document shall be fĳiled in accordance with Article 12 of this Practice Direction.” [Emphasis added]

2 Prosecutor v. Alex Tamba Brima et al., SCSL-04-16-T, Further Amended Consolidated Indictment, 18 February 2005. [“Indictment”]. 3 Scheduling Order, supra note 478. 4 Prosecutor v. Alex Tamba Brima et al., SCSL-04-16-T, Decision on Urgent Defence Request under Rule 54 with Respect to Filing of Motion for Acquittal, 19 January 2006. 680 part ii

II. Applicable Standard Under Rule 98 of the Rules

6. Rule 98 of the Rules, as amended on 14 May 2005, provides as follows: “Motion for Judgment of Acquittal If after the close of the case for the prosecution, there is no evidence capable of supporting a conviction on one or more counts of the indictment, the Trial Chamber shall enter a judgment of acquittal on those counts.” 7. This provision is similar to the equivalent Rule 98bis of the ICTY Rules, as amended on 8 December 2004, which reads: “Motion for Judgement of Acquittal At the close of the Prosecutor’s case, the Trial Chamber shall, by oral decision and after hearing the oral submissions of the parties, enter a judgement of acquittal on any count if there is no evidence capable of supporting a conviction.” 8. In our view, there is no contextual diffference between “no evidence capable of supporting a conviction” and “evidence insufffĳicient to sustain a conviction,” which was the wording used in the ICTY Rule 98bis (B) prior to the above- mentioned amendment (and is still the wording used in ICTR Rule 98bis), and in respect of which a considerable body of jurisprudence has been developed. The plainer language of the amended form of the Rule leaves no doubt that what must be considered by the Trial Chamber is not the reliability or credibility of the evidence, but merely its capability of supporting a conviction. If one possible view of the facts might support a conviction, then the Trial Chamber cannot enter a judgement of acquittal. 9. The ICTY Trial Chamber in Oric stated that “the last amendment to Rule 98bis does not in any way change the standard of review to be applied by the Trial Chamber in its Rule 98bis exercise which therefore remains that set out and repeatedly applied by these Trial Chambers, set out in the Jelisic Appeal Judgement.”5 10. In the following passage from the Jelisic Appeal Judgement, the ICTY Appeals Chamber enunciated the applicable standard of proof, which has since been applied by numerous international tribunals.6 “The reference in Rule 98bis to a situation in which ‘evidence is insufffĳicient to sustain a conviction’ means a case in which, in the opinion of the Trial Chamber, the

5 Prosecutor v. Oric, ICTY IT-03-68, Oral Judgement, Transcripts, 8 June 2005, p. 8983. 6 See for example Prosecutor v. Simic et al., ICTY IT-95-9-T, Written Reasons for Decision on Motions for Acquittal, 11 October 2002, para. 8; Prosecutor v. Naletelic and Martinovic, ICTY IT-98- 34-T, Decision on Motion for Acquittal, 28 February 2002, para. 10; Prosecutor v. Galic, ICTY IT-98- 29-T, Decision on the Motion for the Entry of Acquittal of the Accused Stanislav Galic, 3 October 2002, para. 10. interlocutory decisions – trial chamber 681

prosecution evidence, if believed, is insufffĳicient for any reasonable trier of fact to fĳind that guilt has been proved beyond reasonable doubt. In this respect, the Appeals Chamber follows its recent holding in the Delalic appeal judgement, where it said: “[t]he test to be applied is whether there is evidence (if accepted) upon which a reasonable tribunal of fact could be satisfĳied beyond reasonable doubt of the guilt of the accused on the particular charge in question.” The capacity of the prosecution evidence (if accepted) to sustain a conviction beyond reasonable doubt by a reasonable trier of fact is the key concept; thus the test is not whether the trier would in fact arrive at a conviction beyond reasonable doubt on the prosecution evidence (if accepted) but whether it could. At the close of the case for the prosecution, the Chamber may fĳind that the prosecution evidence is sufffĳicient to sustain a conviction beyond reasonable doubt and yet, even if no evidence is subsequently adduced, proceed to acquit at the end of the trial, if in its own view of the evidence, the prosecution has not in fact proved guilt beyond reasonable doubt.”7 11. With regard to the need for the Trial Chamber to assume that the prosecution evidence is true for the purpose of making a determination under the Rule, it was said in Bagasora8 that: “In assessing whether there is sufffĳicient evidence upon which a reasonable trier of fact could, at the end of the trial, enter a conviction, the Chamber must ‘assume that the prosecution’s evidence [is] entitled to credence unless incapable of belief.’9 Accordingly, the object of the inquiry under Rule 98bis is not to make determinations of fact having weighed the credibility and reliability of the evidence; rather, it is simply to determine whether the evidence – assuming that it is true – could not possibly sustain a fĳinding of guilt beyond reasonable doubt. That will only be the case where there is no evidence whatsoever which is probative of one or more of the required elements of a crime charged, or where the only such evidence is incapable of belief. To be incapable of belief, the evidence must be obviously incredible or unreliable; the Chamber should not be drawn into fĳine assessments of credibility or reliability. Needless to say, a fĳinding that the evidence is not obviously incredible does not foreclose the Chamber, at the end of the trial, from fĳinding that the evidence is, in fact, neither credible nor reliable.” 12. In applying the above-mentioned test, it is not necessary under the Rule for the Trial Chamber to inquire into the sufffĳiciency of the evidence in relation to each paragraph of the indictment. There is no need, at the Rule 98 stage, to examine whether each paragraph of the Indictment is supported by the Prosecution evidence. Rather, the evidence should be examined in relation to the counts. Rule 98 requires the Trial Chamber to determine only whether “there is no

7 Prosecutor v. Jelisic, ICTY IT-95-10-A, Judgement, 5 July 2001, [“Jelisic Appeal Chamber Judgement”], para. 37. 8 Prosecutor v. Bagasora et al., ICTR 98–41-T, Decision on Motion for Judgement of Acquittal, 2 February 2005, para. 6. [“Bagasora Decision on Motion for Judgement of Acquittal”]. 9 Jelisic Appeal Chamber Judgement, supra note 484, para. 55. 682 part ii evidence capable of supporting a conviction on one or more counts of the indictment” and to enter a “judgment of acquittal on those counts.” 10 13. It is important to stress, as was done by the Trial Chamber in Milosevic, that, “a ruling that there is sufffĳicient evidence to sustain a conviction on a particular charge does not necessarily mean that the Trial Chamber will, at the end of the case, return a conviction on that charge; that is so because the standard for determining sufffĳiciency is not evidence on which a tribunal should convict, but evidence on which it could convict. Thus if, following a ruling that there is sufffĳicient evidence to sustain a conviction on a particular charge, the Accused calls no evidence, it is perfectly possible for the Trial Chamber to acquit the Accused of that charge if, at the end of the case, it is not satisfĳied of his guilt beyond reasonable doubt.”11 14. The essential function of the Rule was stated by the ICTY in the cases of Strugar and Hadzihasanovic. The Trial Chambers observed as follows: “It is worth noting the extent and frequency to which Rule 98bis has come to be relied on in proceedings before this Tribunal, and the prevailing tendency for Rule 98bis motions to involve much delay, lengthy submissions, and therefore an extensive analysis of evidentiary issues in decisions. This appears to be in contrast to the position typically found in common law jurisdictions from which the procedure is derived. While Rule 98bis is an important procedural safeguard, the object and proper operation of the Rule should not be lost sight of. Its essential function is to separate out and bring to an end only those proceedings in respect of a charge for which there is no evidence on which a Chamber could convict, rather than to terminate prematurely cases where the evidence is merely weak.” 12 15. The factual fĳindings in this Decision in relation to the 14 counts in the Indictment are reached using the above-mentioned Rule 98 standard, namely, whether there is evidence, if believed, upon which a reasonable tribunal of fact could be satisfĳied beyond reasonable doubt of the guilt of the accused on the particular charge in question.

10 See Prosecutor v. Bagasora Decision on Motion for Judgement of Acquittal, supra note 485, para. 8; Prosecutor v. Kamuhanda, ICTR-99-54A-T, Decision on Kamuhanda’s Motion for Partial Acquittal Pursuant to Rule 98bis of the Rules of Procedure and Evidence, 20 August 2002, para. 17; Prosecutor v. Nahimana et al., ICTR-99-52-T, Reasons for Oral Decision of 17 September 2002 on the Motions for Acquittal, [“Nahimana Reasons for Oral Decision 17 September 2002”], para. 16; Prosecutor v. Rwamakuba, ICTR-98-44C-R98bis, Decision on Defence Motion for Judgement of Acquittal, 28 October 2005, paras. 8, 14, 15. 11 Prosecutor v. Slobodan Milosevic, ICTY IT-02-54-T, Decision on Motion for Judgement of Acquittal, 16 June 2004, [“Milosevic Decision on Motion for Judgement of Acquittal”], para. 13 (6). 12 Prosecutor v. Strugar, ICTY IT-01-42-T, Decision on Defence Motion Requesting Judgement of Acquittal Pursuant to Rule 98bis, 21 June 2004, [“Strugar Decision on Motion for Judgement of Acquittal”], para. 20; Prosecutor v. Hadzihasanovic and Kubura, ICTY IT-01-47-T, Decision on Motions for Acquittal Pursuant to Rule 98bis of the Rules of Procedure and Evidence, 27 September 2004, [“Hadzihasanovic Decision on Motions for Acquittal”], para. 20. interlocutory decisions – trial chamber 683

III. Locations in the Indictment Over Which the Defence Has Raised Issue

Locations in Respect of Which the Prosecution Led no Evidence 16. In their various submissions Defence Counsel for the three accused, cited a number of locations in the Indictment in respect of which the Prosecution failed to adduce any evidence of the crimes alleged to have been committed at those locations.13 17. The Prosecution while conceding that it has not led evidence with respect to all geographic locations pleaded at the sub-District level in the Indictment and in particular in relation to the locations listed in Annex A to the Prosecution Response, argued that it is not necessary to do so in order to prove each particular Count. The Prosecution submitted that “where a single count in the Indictment charges an Accused with criminal responsibility in respect of more than one incident, the Trial Chamber is not required to make a determination of whether there is sufffĳicient evidence to sustain a conviction for each separate paragraph of, or location in the Indictment.” 14 The Prosecution argued further that it need not prove every particular set out in the Indictment and that it had led evidence of each count which was sufffĳicient for a reasonable tribunal of fact to convict the three Accused.15 18. The Defence disputed this argument on the basis that the Prosecution is required to prove every particular set out in the Indictment so as to enable the Accused to defend themselves. Relying on the position adopted by the respective Tribunals in the cases of Prosecutor v. Sam Hinga Norman et al.,16 and Prosecutor v. Jelisic,17 Defence Counsel argued that the Trial Chamber is duty bound under Rule 98 of the Rules, to enter a Judgment of Acquittal in favour of each of the accused in respect of each of those locations and to strike the locations from the Indictment and that, “omitting to strike these particular locations from the Indictment at this

13 Prosecutor v. Alex Tamba Brima et al., SCSL-04-16-T, Brima Motion For Acquittal Pursuant to Rule 98, 12 December 2005, [“Brima Motion”], para. 44; Prosecutor v. Alex Tamba Brima et al., SCSL- 04-16-T, Kanu Factual Part Defence Motion for Judgement of Acquittal Under Rule 98, 13 December 2005, [“Kanu Motion”], paras. 13, 15, 16, 18, 21, 34, 36, 38, 42, 46, 47, 59, 78, 79, 80, 82, 83, 88, 91, 93, 96, 97, 99 and 100; Prosecutor v. Alex Tamba Brima et al., SCSL-04-16-T, Joint Legal Reply to Prosecution Response to Defence Motions For Judgement of Acquittal, [“Joint Defence Reply”], paras. 8 and 9; Prosecutor v. Alex Tamba Brima et al., SCSL-04-16-T, Confĳidential Kanu Reply to Prosecution Response to Defence Motions For Judgement of Acquittal, 27 January 2006, [“Kanu Reply”], paras. 3, 4 and 5. 14 Prosecutor v. Alex Tamba Brima et al., SCSL-04-16-T, Prosecution Response to Defence Motions For Judgement of Acquittal Pursuant to Rule 98, 23 January 2006, [“Response”], para. 7. 15 Ibid., para. 393. 16 Prosecutor v. Norman et al., SCSL-2004-14-T-473, Decision on Motions for Judgement of Acquittal Pursuant to Rule 98, 21 October 2005, [“Norman Judgement of Acquittal”]. 17 Jelisic Appeal Chamber Judgement, supra note 484, paras. 35–38. 684 part ii stage of the proceedings would put the Defence in the peculiar position of adducing evidence to refute the charges thereto, whilst no evidence has been presented by the Prosecution that anything did happen there. This would unquestionably lead to a delay in the procedure; whilst striking them from the Indictment would not result in any public prejudice to the Prosecution.”18 19. We note that when citing locations where the various criminal acts are alleged to have taken place the language used in the particulars of the Indictment is not exhaustive and often uses the preposition “including” when referring to those locations.19 Given the “widespread” nature of the alleged crimes, it would in our view, be impracticable for the Indictment to name exhaustively every single location throughout the territory of Sierra Leone where these criminal acts allegedly took place. We do not understand the Indictment to be limited to only those villages or locations named in the particulars. Clearly the Prosecution may (as indeed it has done in some instances) adduce evidence of alleged crimes in other villages not specifĳied in the Indictment, in order to demonstrate the “widespread or systematic” nature of the attack on the civilian population. 20. We note that the locations specifĳied in Annex A to the Prosecution Response are all within Districts named in the Counts in question. We also note that in all cases, the Prosecution has led evidence in relation to all the other locations speci- fĳied in the Indictment. In some instances evidence was led in relation to villages or locations that were not specifĳied in the Indictment but which are located within the Districts pleaded. Ultimately, the Trial Chamber will take all this evidence into account in determining whether or not the Prosecution evidence in relation to each Count is capable of supporting a conviction against the accused on that count. 21. The Trial Chamber is further of the view that under Rule 98, we are required to determine the evidence in relation to the counts of the Indictment, and to enter a judgement of acquittal, if appropriate, on a count – not on an item of particulars. We do not consider that we are empowered by Rule 98 to break a Count down to its particulars supplied in the Indictment and then to enter a judgement of acquittal in respect of any particular which has not been proved; nor would it be practical to do so. We note the Prosecution concessions with regard to various locations for which no evidence was adduced and, in our view, that is sufffĳicient to cover the situation. 22. The present case is not one in which the Accused can say that without a judgement of acquittal in respect of the said locations they are incapable of knowing which of the various heads of liability initially alleged they need no longer contest. We do not think that the Defence can seriously claim that, without a

18 Kanu Reply, supra note 490, para. 4; Joint Defence Reply, supra note 490, paras. 8–9. 19 See Indictment, supra note 479, paras. 42–79. interlocutory decisions – trial chamber 685 formal judgement of acquittal being entered in respect of the contested locations, it would be put in the position of having to lead evidence to refute the charges when there was no evidence “that anything did happen there.” Why would any party to a criminal proceeding think it necessary to lead evidence to refute something that never happened? It goes without saying that the Defence will not be expected to call evidence concerning locations about which no evidence has been given.

Locations the Names of Which are Spelt Diffferently 23. In a related issue, Defence Counsel for the accused Kanu submitted that, “On several occasions in its Response, the Prosecution seems to assert that diffferent names such as Mambona and Mamoma, Willifeh and Wollifeh, Mandaha and Mandaya, Wendedu and Wondedu refer to the same villages. The Defence submits that this is not the case…names of villages throughout the country or district can be almost identical, but still diffferent places. The Prosecution has adduced no geographical evidence supporting its allegation that such names which are similar, but not identical, refer to the same location. Therefore, locations without supporting evidence referring to exactly the same village name should be struck from the Indictment.”20 24. We note that Counsel raised this as a new issue in the Kanu Reply thereby technically denying the Prosecution an opportunity to respond thereto. This is a practice this Trial Chamber has consistently discouraged. 25. Regarding this submission, we do not consider striking out the names of these locations to be an appropriate or desirable remedy. We are mindful of the fact that due to the variety of vernacular languages and dialects generally spoken in Sierra Leone and particularly by the Prosecution witnesses in this case, the names of some locations were sometimes pronounced and/or spelt diffferently, depending on the dialect spoken by the witness. At other times, some of the witnesses were illiterate and could not spell the names of certain locations. In the latter case the Trial Chamber often resorted to the phonetic spelling of such a location. In our view, the Defence had ample opportunity to raise any doubts about evidence relating to a given location through cross-examination of the Prosecution witnesses.

IV. The “Greatest Responsibility” Requirement

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

20 Kanu Reply, supra note 490, para. 6. 686 part ii

“Article 1–Competence of the Special Court 1. The Special Court shall, except as provided in subparagraph (2), have the power to prosecute persons who bear the greatest responsibility for serious violations of international humanitarian law and Sierra Leonean law committed in the territory of Sierra Leone since 30 November 1996, including those leaders who, in committing such crimes, have threatened the establishment of and implementation of the peace process in Sierra Leone.” 27. Article 15.1. of the Statute places the responsibility for prosecuting the persons mentioned in Article 1.1. on the Prosecutor. Article 15.1. states: “The Prosecutor shall be responsible for the investigation and prosecution of persons who bear the greatest responsibility for serious violations of international humanitarian law and crimes under Sierra Leonean law committed in the territory of Sierra Leone since 30 November 1996. The Prosecutor shall act independently as a separate organ of the Special Court. He or she shall not seek or receive instructions from any Government or from any other source.”

Submissions 28. The Defence argued that the specifĳic reference to “... persons who bear the greatest responsibility …” in Article 1(1) and Article 15 of the Statute amounts to a limitation on the Court’s jurisdiction as to which persons may or may not be prosecuted and creates an evidentiary burden to be satisfĳied by the Prosecution at the stage of a Motion for Judgement of Acquittal brought under Rule 98. The Defence submitted that this wording amounts to a more limited personal jurisdiction which superseded a broader formulation of “persons most responsible” suggested by the Secretary General.21 The Defence further submitted that the Prosecution has not adduced evidence fulfĳilling the greatest responsibility requirement because “the evidence introduces the existence of genuine prominent individuals bearing greatest responsibility, other than the Accused.”22 29. The Prosecution disputed that the “greatest responsibility” formulation amounts to a jurisdictional threshold and contends that the question of whether or not an Accused is one of the persons who bear the greatest responsibility for the said violations should be determined after all the evidence has been heard and is not an issue correctly addressed at the Rule 98 stage.23 In the alternative, the Prosecution submitted that on the evidence presently before the Trial Chamber, a

21 Letter of 22 December 2000 from the President of the Security Council to the Secretary General, S/2000/1234, para. 1 which rejects the Secretary General’s recommendation as per Report of the Secretary General on the Establishment of an SCSL, 4 October 2000, S/2000/915, para. 30. 22 Prosecutor v. Alex Tamba Brima et al., SCSL-04-16-T, Joint Legal Part of the Defence Motion for Judgement of Acquittal Under Rule 98, 13 December 2005, [“Joint Legal Part”], para. 18. 23 Response, supra note 491, para. 13 and 14. interlocutory decisions – trial chamber 687 reasonable tribunal of fact could fĳind that each of the Accused is amongst those bearing the greatest responsibility for serious violations of international humanitarian law in Sierra Leone since 30 November 1996.24

Deliberations 30. The same jurisdictional issue was brought before Trial Chamber I by way of a preliminary motion under Rule 72. Trial Chamber I found that “the issue of personal jurisdiction is a jurisdictional requirement, and while it does of course guide the prosecutorial strategy, it does not exclusively articulate prosecutorial discretion, as the Prosecution has submitted.”25 Trial Chamber I went on to conclude that “in the ultimate analysis, whether or not in actuality the Accused is one of the persons who bears the greatest responsibility for the alleged violations of international humanitarian law and Sierra Leonean law is an evidentiary matter to be determined at the trial stage.”26 31. In the present case, no preliminary motion was fĳiled under Rule 72 in relation to the jurisdictional issue. We are of the view that the question of whether the reference to “persons who bear the greatest responsibility” creates a jurisdictional requirement rather than a prosecutorial discretion, is not a matter that is within the scope of Rule 98 and we will not consider it here. However, we can at this stage consider the category of persons contemplated by Article 1.1. and whether there is evidence according to the Rule 98 standard that would place any of the Accused within that category. 32. The “most responsible” formulation suggested by the Secretary General of the United Nations was rejected by the Security Council, which insisted instead upon the “greatest responsibility” formulation. Subsequently, the Secretary General expressed the following view on the persons encompassed by Article 1.1.: “Members of the Council expressed preference for the language contained in Security Council resolution 1315 (2000) extending the personal jurisdiction of the Court to “persons who bear the greatest responsibility,” thus limiting the focus of the Special Court to those who played a leadership role. However, the wording of subparagraph (a) of Article 1 of the draft Statute, as proposed by the Security Council, does not mean that the personal jurisdiction is limited to the political and military leaders only. Therefore, the determination of the meaning of the term “persons who bear the

24 Ibid., at para. 15. 25 Prosecutor v. Norman, Decision on the Preliminary Defence Motion on the Lack of Personal Jurisdiction Filed on behalf of the Accused Fofana, SCSL-04-14-PT, 3 March 2004. [“Norman Decision on Lack of Personal Jurisdiction”], para. 27. 26 Ibid., para. 44. 688 part ii

greatest responsibility” in any given case falls initially to the prosecutor and ultimately to the Special Court itself. Any such determination will have to be reconciled with an eventual prosecution of juveniles and members of a peacekeeping operation, even if such prosecutions are unlikely. Among those who bear the greatest responsibility for the crimes falling within the jurisdiction of the Special Court, particular mention is made of “those leaders who, in committing such crimes, have threatened the establishment of and implementation of the peace process in Sierra Leone.” It is my understanding that, following from paragraph 2 above, the words “those leaders who…threaten the establishment of and implementation of the peace process” do not describe an element of the crime, but rather provide guidance to the prosecutor in determining his or her prosecutorial strategy. Consequently, the commission of any of the statutory crimes without necessarily threatening the establishment and implementation of the peace process would not detract from the international criminal responsibility otherwise entailed for the accused.”27 [emphasis added] 33. This opinion of the Secretary General was approved by the Security Council, as is shown in the following letter from the President of the Security Council: “The members of the Council share your analysis of the importance and role of the phrase “persons who bear the greatest responsibility.” The members of the Council, moreover, share your view that the words beginning with “those leaders who …” are intended as guidance to the Prosecutor in determining his or her prosecutorial strategy.”28 34. Thus, the standard as understood by the Secretary General and the Security Council, and accepted by the Government of Sierra Leone, includes, at a minimum, political and military leaders and implies an even broader range of individuals. This standard is in keeping with the wording of Article 1.1. of the Statute, which states that the Special Court shall have the power to prosecute “persons who bear the greatest responsibility for serious violations of international humanitarian law and Sierra Leonean law committed in the territory of Sierra Leone since 30 November 1996, including those leaders who, in committing such crimes, have threatened the establishment of and implementation of the peace process in Sierra Leone.” [emphasis added] 35. The use of the word “including” implies that the category of “persons who bear the greatest responsibility” is by no means limited to “those leaders …” and that there may be other persons who fall into that category. 36. Even children between 15 and 18 years of age are not excluded from the potentially broad scope of Article 1.1. Article 7 of the Statute gives the Special

27 Letter Dated 12 January 2001 from the Secretary-General addressed to the President of the Security Council, S/2001/40, 12 January 2001. [“Secretary General letter to Security Council 12 January 2001”]. 28 Letter dated 31 January 2001 from the President of the Security Council Addressed to the Secretary-General, 31 January 2001, S/2001/95. interlocutory decisions – trial chamber 689

Court jurisdiction to prosecute children in this age group. Moreover, in his letter to the President of the Security Council dated 12 January 2001, the Secretary General expressed his belief that, “Any such determination of [“persons who bear the greatest responsibility”] will have to be reconciled with an eventual prosecution of juveniles and members of a peacekeeping operation, even if such prosecutions are unlikely.”29 37. Thus, although children accused of serious crimes may fall within the category of persons who bear “the greatest responsibility,” it would perhaps be at the lower end of the spectrum.

Findings 38. The evidence of the Prosecution is discussed in detail in other sections of this decision. Having examined that evidence, we fĳind that there is evidence, if believed, capable of establishing not only that the Accused Alex Tamba Brima, Brima Bazzy Kamara, and Santigie Borgor Kanu were all senior members of the AFRC, but that, during the periods alleged in the Indictment, they were all implicated in serious crimes committed in 7 of the 11 districts of Sierra Leone. 39. Given the potentially broad scope of Article 1.1. of the Statute discussed above, we fĳind that there is evidence, if believed, that is capable of placing each of the three accused in the category of “persons who bear the greatest responsibility” for the crimes charged in the Indictment. The fact that there may be evidence indicating the existence of persons who bear “the greatest responsibility” other than the Accused, does not eliminate the possibility that the Accused may also be among those who “bear the greatest responsibility.”

V. Elements of Crimes Against Humanity Pursuant to Article 2 of the Statute

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

29 Secretary General letter to Security Council 12 January 2001, supra note 504, at para. 2. The Secretary General goes on to discuss other matters related to prosecution of juveniles including the suggestion of an amended version of article 7 which retains the principle of juvenile prosecution but which omits the potential for prosecution of children below the age of 15. 690 part ii

“Article 2: Crimes against humanity: The Special Court shall have power to prosecute persons who committed the following crimes as part of a widespread or systematic attack against any civilian population: a. Murder; b. Extermination; c. Enslavement; d. Deportation; e. Imprisonment; f. Torture g. Rape, sexual slavery, enforced prostitution; forced pregnancy and any other form of sexual violence; h. Persecution on political, racial, ethnic or religious grounds; i. Other inhumane acts.” 41. Although the Statute does not defĳine the term “crimes against humanity,” Article 2 thereof restricts the jurisdiction of the Special Court to offfences committed “as part of a widespread or systematic attack against any civilian population.” However, Article 2 of the Statute difffers from similar provisions found in the governing statutes of other International Tribunals. Notably, Article 2 does not specifĳically require such crime to have been committed “during armed conflict” (unlike its ICTY counterpart30), or “on national, political, ethnic, racial or religious grounds” (unlike its ICTR counterpart31), or with the perpetrator’s “knowledge of the attack” (unlike its ICC counterpart32). While recognising that the jurisprudence emanating from the various International Tribunals regarding crimes against humanity is as varied as their respective Statutes33 and that it should be carefully applied taking into account the diffferences, the Trial Chamber endorses the view recently expressed by Trial Chamber I of the Special Court in Prosecutor v. Sam Hinga Norman et al. that under the Statute of the Special Court for Sierra Leone, a crime against humanity is committed where the perpetrator commits one or more of the offfences stipulated in Article 2 knowing that it is part of a widespread or systematic attack against a civilian population.34 42. The Trial Chamber endorses the following contextual elements of crimes against humanity pursuant to Article 2 of the Statute, namely:

30 ICTY Statute, Article 5. 31 ICTR Statute, Article 3. 32 ICC Statute, Article 7. See also United Nations Transitional Administration in East Timor (UNTAET) Regulation No. 2000/15, Section 5. 33 Prosecutor v. Akayesu, ICTR-96-4-A, Judgement, Appeals Chamber, 1 June 2001, [“Akayesu Appeals Chamber Judgement”] paras. 460–469; Prosecutor v. Tadic, ICTY IT-94-1-A, Judgement, Appeals Chamber, 15 July 1999, [“Tadic Appeals Chamber Judgement”] paras. 248, 251; Prosecutor v. Brdjanin, ICTY IT-99-36-T, Judgement, 1 September 2004, [“Brdjanin Trial Chamber Judgement”] para. 130; Prosecutor v. Kunarac, Kovac & Vikovic, ICTY IT-96-23-A, Judgement, Appeals Chamber, 15 June 2002, [“Kunarac Appeals Chamber Judgement”] paras. 85–100, 102–104, 336. 34 Norman Judgement of Acquittal, supra note 493, para. 55. interlocutory decisions – trial chamber 691

(a) There must be an attack: An attack in this context is not synonymous with “an armed conflict”35 or “a military attack” as defĳined in international humanitarian law.36 Instead it refers to a campaign, operation or course of conduct directed against a civilian population and encompasses any mistreatment of the civilian population. The attack need not involve military forces or armed hostilities37 and may even be non-violent in nature.38 (b) The attack must be widespread or systematic: The requirement that the attack must be either widespread or systematic is disjunctive and proof that the attack occurred either on a widespread basis or in a systematic manner is sufffĳicient to exclude isolated or random acts.39 It is not necessary that each act which occurs within the attack should itself be widespread or systematic. It is sufffĳicient that the act or various acts form part of an attack upon the civilian population that is either “widespread” or “systematic.”40 While isolated or random acts unrelated to the attack are usually excluded from the defĳinition of crimes against humanity, a single act perpetrated in the context of a widespread or systematic attack upon a civilian population is sufffĳicient to bestow individual criminal liability upon the perpetrator. Similarly, a perpetrator need not commit numerous offfences to be held liable for crimes against humanity.41 In the context of crimes against humanity, International Tribunals have defĳined the term “widespread” to denote “massive, frequent, large-scale action, carried out collectively with considerable seriousness and directed at multiple victims”; and the term “systematic” to denote “organised action following a regular pattern and carried out pursuant to a pre-conceived plan or policy, whether formalised or not.”42 (c) The attack must be directed against a civilian population: The term “civilian population” has been widely defĳined to include not only civilians in the ordinary and strict sense of the term, but all persons who have taken no active part in the hostilities, or are no longer doing so, including members of the armed forces who laid down their arms and persons placed hors de combat by sickness, wounds, detention or any other reason.43 The targeted population must be

35 Tadic Appeals Chamber Judgement, supra note 510, para. 251. 36 Article 49(1) of the Additional Protocol I defĳines “attacks” within the military context as “acts of violence against the adversary, whether in offfence or defence.” 37 Kunarac Appeals Chamber Judgement, supra note 510, paras. 16–20. 38 Akayesu Appeals Chamber Judgement, supra note 510, para. 581. 39 Prosecutor v. Tadic, ICTY IT-94-1-T, Trial Chamber Judgement, 7 May 1997, [“Tadic Trial Chamber Judgement”] para. 646. 40 Kunarac Appeals Chamber Judgement, supra note 510, para. 96–7. 41 Tadic Trial Chamber Judgement, supra note 516, para. 649. 42 Prosecutor v. Akayesu, ICTR-96-4-T, Trial Chamber Judgement, 2 September 1998, [“Akayesu Trial Chamber Judgement”], para. 580; Prosecutor v. Kayishema & Ruzindana, ICTR-95-1-T, Trial Chamber Judgement, 21 May 1999, [“Kayishema & Ruzindana Judgement”], para. 123; Kunarac Appeals Chamber Judgement, supra note 510, para. 94; Tadic Trial Chamber Judgement, supra note 516, para. 648. 43 Akayesu Appeals Chamber Judgement, supra note 510, para. 582; Tadic Appeals Chamber Judgement, supra note 510, paras. 637–638. 692 part ii

predominantly civilian in nature and the presence of a number of non-civilians in their midst does not change the civilian character of that population.44 The term “directed against” connotes that the civilian population must be the primary object of the attack and in determining whether or not an attack is so directed the Trial Chamber should consider, inter alia, the means and methods used in the course of the attack, the status and number of the victims, the nature of the crimes committed in course of the attack, the resistance to the assailants at the time and the extent to which the attacking force may be said to have complied or attempted to comply with the precautionary requirements of the laws of war.45 (d) The acts of the accused must be part of the attack: In order for the offfence to amount to a crime against humanity, there must be a sufffĳicient nexus between the unlawful acts of the perpetrator and the attack.46 Although this nexus depends on the factual circumstances of each case, reliable indicia of a nexus include the similarities between the perpetrator’s acts and the acts occurring within the attack; the nature of the events and circumstances surrounding the perpetrator’s acts; the temporal and geographic proximity of the perpetrator’s acts with the attack; and the nature and extent of the perpetrator’s knowledge of the attack when he commits the acts.47 (e) The accused must have knowledge that his acts constitute part of a widespread or systematic attack directed against a civilian population: The mens rea or mental requisite for crimes against humanity is that the perpetrator of the offfence must be aware that a widespread or systematic attack on the civilian population is taking place and that his action is part of this attack.48 However, the perpetrator need not have been aware of the details of the pre- conceived plan or policy when he committed the offfence and need not have intended to support the regime carrying out the attack on the civilian population.49 The Trial Chamber adopts the above elements and supporting jurisprudence.

VI. Elements of Violations of Article 3 Common to the Geneva Conventions and of Additional Protocol II Pursuant to Article 3 of the Statute

43. The alleged crimes contained in Counts 1 (Acts of Terrorism), 2 (Collective Punishments), 5 (Violence to life, health and physical or mental well-being of persons, in particular murder), 9 (Outrages upon personal dignity), 10 (Violence to

44 Tadic Appeals Chamber Judgement, supra note 510, para. 644. 45 Kunarac Appeals Chamber Judgement, supra note 510, para. 91. 46 Akayesu Trial Chamber Judgement, supra note 519, para. 579 47 Tadic Appeals Chamber Judgement, supra note 510, para. 632. 48 Kunarac Appeals Chamber Judgement, supra note 510, para. 121; Prosecutor v. Kayishema and Ruzindana, supra note ___, paras. 133–134; Tadic Appeals Chamber Judgement, supra note 510, para. 255. 49 Prosecutor v. Blaskic, ICTY IT-95-14-T, Trial Chamber Judgement, 3 March 2000, [“Blaskic Judgement”], paras. 254–257. interlocutory decisions – trial chamber 693 life, health and physical or mental well-being of persons, in particular mutilation), and 14 (Pillage) of the Indictment are charged under Article 3 of the Statute of the Special Court for Sierra Leone, which confers jurisdiction upon the Special Court to try certain offfences as violations of Article 3 Common to the Geneva Conven- tions and of Additional Protocol II. Article 3 of the Statute provides as follows: “Article 3: Violations of Article 3 Common to the Geneva Conventions and of Additional Protocol II The Special Court shall have the power to prosecute persons who committed or ordered the commission of serious violations of Article 3 Common to the Geneva Conventions of 12 August 1949 for the Protection of War victims, and of Additional Protocol II thereto of 8 June 1977. These violations shall include: a. Violence to life, health and physical or mental well-being of persons, in particular murder as well as cruel treatment such as torture, mutilation or any form of corporal punishment; b. Collective punishments; c. Taking of hostages; d. Acts of terrorism; e. Outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault; f. Pillage; g. The passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court, afffording all the judicial guarantees which are recognised as indispensable by civilised peoples; and h. Threats to commit any of the foregoing acts.” 44. The Trial Chamber endorses the following contextual elements of Violations of Article 3 Common to the Geneva Convention and of Additional Protocol II pursuant to Article 3 of the Statute, namely: (a) There must have been an armed conflict whether internal or international in character, at the time the offences were allegedly committed: Although Article 3 Common to the Geneva Conventions is expressed to apply to armed conflicts “not of an international character,” the distinction between internal armed conflicts and international conflicts is “no longer of great relevance in relation to the crimes articulated in Article 3 of the Statute.”50 The Appeals Chamber of the ICTY has ruled that “an armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organised armed groups or between such groups within a State.” 51

50 See Prosecutor v. Fofana, SCSL-2004-14-AR72(E), Decision on Preliminary Motion on Lack of Jurisdiction Materiae: Nature of Armed Conflict, Appeals Chamber, 25 May 2004, [“Fofana Appeals Chamber Decision on Lack of Jurisdiction Materiae; Nature of Armed Conflict”], at para. 25. 51 See Prosecutor v. Tadic, ICTY IT-94-1-AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, [“Tadic Appeals Chamber Decision on Interlocutory Appeal on Jurisdiction”], at para. 70. 694 part ii

The armed conflict “need not have been causal to the commission of the crime, but the existence of an armed conflict must, at a minimum, have played a substantial part in the perpetrator’s ability to commit it, his decision to commit it, the manner in which it was committed or the purpose for which it was committed.”52 (b) There must be a nexus between the armed conflict and the alleged offence:53 The nexus requirement is satisfĳied where the perpetrator “acted in furtherance of or under the guise of the armed conflict.” Factors to be considered in this regard include, inter alia, “the fact that the perpetrator is a combatant; the fact that the victim is a non-combatant; the fact that the victim is a member of the opposing party; [and] the fact that the act may be said to serve the ultimate goal of a military campaign.”54 (c) The victims were not directly taking part in the hostilities at the time of the alleged violation:55 Common Article 3 applies to “persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause,” and Additional Protocol II similarly treats the class of non-combatants as “all persons who do not take a direct part or who have ceased to take part in hostilities.”56

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

45. The alleged crimes contained in Count 12 (Use of Child Soldiers) of the Indictment are charged under Article 4 of the Statute of the Special Court for Sierra Leone as Other Serious Violations of International Humanitarian Law. Article 4 of the Statute provides as follows: “Article 4: Other Serious Violations of international humanitarian law The Special Court shall have the power to prosecute persons who committed the following serious violations of international humanitarian law:

52 Kunarac Appeals Chamber Judgement, supra note 510, at para. 58. 53 See Strugar Decision on Motion for Judgement of Acquittal, supra note 489, at para. 24; Bagasora Decision on Motion for Judgement of Acquittal, supra note 485, at para. 36. 54 See Bagasora Decision on Motion for Judgement of Acquittal, supra note 485, at para. 36; Kunarac Appeals Chamber Judgement, supra note 510, para. 59. 55 See Bagasora Decision on Motion for Judgement of Acquittal, supra note 485, para. 36; Prosecutor v. Ntagerura et al., ICTR 99-46-T, Judgement, 25 February 2004, para. 766; Prosecutor v. Semanza, ICTR 97-20-T, Judgement, 15 May 2003, para. 354–371, 512. 56 Common Article 3.1. of the Geneva Conventions; see Norman Judgement of Acquittal, supra note 493, para. 70. interlocutory decisions – trial chamber 695

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 fĳifteen years into armed forces or groups or using them to participate actively in hostilities.” 46. The serious violations of international humanitarian law listed in Article 4 of the Statute possess the same chapeau requirements as war crimes (See the previous section, “Elements of Violations of Article 3 Common to the Geneva Conventions and of Additional Protocol II” paragraph 44(a) to (c) ).

VIII. Review of the Counts and Issues Raised

1. Counts 1 and 2: Terrorising the Civilian Population and Collective Punishment Introduction 47. The Indictment alleges that members of the AFRC/RUF subordinate to and/ or acting in concert with Alex Tamba Brima, Brima Bazzy Kamara and Santigie Borbor Kanu committed the crimes charged in Counts 3 through 14 of the Indictment (Counts 3–5 allege unlawful killings, Counts 6–9: Sexual Violence, Counts 10-11: Physical Violence, Count 12: Use of Child Soldiers, Count 13: Abductions and Forced Labour, Count 14: Looting and Burning) “as part of a campaign to terrorize the civilian population of the Republic of Sierra Leone, and did terrorize that population. The AFRC/RUF also committed the crimes to punish the civilian population for allegedly supporting the elected government of President Ahmed Tejan Kabbah and factions aligned with that government, or for failing to provide sufffĳicient support to the AFRC/RUF.” 48. The Indictment charges that, by their acts or omissions in relation to these events, all three Accused, pursuant to Article 6.1. and/or alternatively, Article 6.3. of the Statute, are individually criminally responsible for the crimes alleged in Counts 1 (Acts of Terrorism, Article 3(d) of the Statute) and 2 (Collective Punishments, Article 3(b) of the Statute). Articles 6.1 and 6.3. of the Statute provide as follows: “Article 6: Individual Criminal Responsibility 1. A person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in articles 2 to 4 of the present Statute shall be individually responsible for the crime; 2. […] 696 part ii

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

1.1. Count 1: Acts of Terrorism (Article 3.d. of the Statute) Elements of the Crime 49. We adopt the defĳinition formulated by Trial Chamber I of “acts of terrorism” within the meaning of Article 3(d) of the Statute. The defĳinition, which seems to have been accepted by both the Defence and the Prosecution,57 is in the following terms: “The crime of Acts of Terrorism is comprised of the elements constitutive of Violations of Article 3 Common to the Geneva Conventions and of Additional Protocol II as well as the following specifĳic elements: (a) Acts or threats of violence directed against protected persons or their property. (b) The offfender wilfully made protected persons or their property the object of those acts and threats of violence. (c) The acts or threats of violence were committed with the primary purpose of spreading terror among protected persons.”58 Submissions Joint Legal Part 50. The Joint Defence submitted that, at the least, the Prosecution had failed to submit proof of elements 2 and 3 of the above–mentioned defĳinition.59 Brima Motion 51. Counsel for Brima did not specifĳically respond to this Count nor to Count 2, but submitted generally that there was no evidence to prove any individual criminal responsibility nor any command responsibility on the part of Brima. Kamara Motion 52. Counsel for Kamara submitted that the Prosecution evidence is insufffĳicient to support Counts 1 and 2. It was also submitted on behalf of Kamara that, in relation to Counts 1 and 2, the Prosecution has made it impossible for him to understand the nature and cause of the specifĳic charges brought against him because the Prosecution has used the same facts and evidence “to hold him criminally and

57 See Joint Legal Part, supra note 499, paras. 49–51, Response, supra note 491, para. 79. 58 Norman Judgement of Acquittal, supra note 493, para. 112. 59 Joint Legal Part, supra note 499, para. 51. interlocutory decisions – trial chamber 697 individually responsible for the alleged conduct attributed to him, as well as for the alleged acts of his subordinates and/or purported AFRC/RUF alliance in this regard.” Prosecution Response 53. The Prosecution, in submitting that the Joint Defence submission should be rejected, referred to the evidence of various witnesses describing “how they suf- fered at the hands of the AFRC” and indicating “the widespread nature of the attacks” and showing “the primary purpose of spreading terror amongst protected persons who were not involved in any hostilities.”60 54. In answer to the Brima and Kamara Motions, the Prosecution submitted that the evidence relied upon to prove Counts 1 and 2 variously relates to the remaining Counts 3 to 14, and the evidence adduced therein. Based on the evidence showing the criminal responsibility of Brima for Counts 3 to 14, “which also serves as a basis for the actus reus and mens rea for Counts 1 and 2,” a reasonable tribunal of fact could conclude that there was sufffĳicient evidence to convict Brima on Counts 1 and 2. 55. With regard to Kamara’s claim that the Prosecution had made it impossible for him to understand the nature of the specifĳic charges brought against him in Counts 1 and 2, the Prosecution submitted that any allegation of a defect in the form of the indictment should have been raised by preliminary motion under Rule 72 before commencement of the trial, and that a motion under Rule 98 was not the place to raise such a question. Brima Reply 56. Brima denied that there was sufffĳicient evidence to convict him on Counts 1 and 2.61 Kamara Reply 57. Counsel for Kamara submitted that the Prosecution arguments confer guilt on Kamara on Counts 1 and 2 for allegedly being present at a meeting at Kamagbengbe, but that his mere presence at the meeting (which is denied) is insufffĳicient to convict him of those crimes.62

60 Response, supra note 491, paras. 79–84. 61 Prosecutor v. Alex Tamba Brima et al., SCSL-04-16-T, Brima Reply to Prosecution Response to Defence Motions For Judgement of Acquittal, 30 January 2006 [“Brima Reply”], para. 1. 62 Prosecutor v. Alex Tamba Brima et al., SCSL-04-16-T, Kamara Reply to Prosecution Response to Defence Motions For Judgement of Acquittal, 30 January 2006, [“Kamara Reply”], para. 1. 698 part ii

Kanu Reply 58. Counsel for Kanu did not specifĳically reply to the Prosecution Response in relation to this Count. Findings 59. Kamara’s complaint that the Prosecution has relied on the same facts and evidence as a basis for criminal liability under both Article 6.1. and Article 6.3. of the Statute is an objection based on alleged defects in the form of the indictment and should have been raised by way of preliminary motion under Rule 72. It is beyond the scope of Rule 98 and not something we are prepared to consider here. 60. While we would agree with Counsel for Kamara that mere presence at a meeting is not sufffĳicient, of itself, to confer guilt, we fĳind that there is evidence which, if believed, not only establishes Kamara’s presence at the meeting in Kamagbengbe, but is also capable of supporting a conviction against him for the crimes resulting from the attack on Karina, which was planned at that meeting.63 61. Having considered the available evidence, we fĳind that there is evidence, if believed, sufffĳicient to satisfy a reasonable tribunal of fact beyond reasonable doubt of the guilt of each of the Accused Brima, Kamara and Kanu for the crime of Acts of Terrorism as a violation of Article 3 Common to the Geneva Conventions and of Additional Protocol II pursuant to Article 3.d. of the Statute. Accordingly, we are satisfĳied that, pursuant to Rule 98, the evidence is capable of supporting a conviction against each of the Accused Brima, Kamara and Kanu on Count 1 of the Indictment.64

1.2. Count 2: Collective Punishments (Article 3(b) of the Statute) Elements of the Crime 62. Again, there seems to be no dispute between the parties regarding the defĳini- tion of the crime of collective punishments formulated by Trial Chamber I,65 and we adopt that defĳinition. Trial Chamber I was of the view that the elements of the crimes were:

63 Witness TF1-334, Transcript 23 May 2005, pp. 56–59. 64 The following references to the evidence are by no means exhaustive: Witness TF1-023, Transcript 10 March 2005, pp. 36–37; Witness TF1-122, Transcript 24 June 2005, pp. 32–33; Witness TF1-033, Transcript 11 July 2005, pp. 60–62; Witness TF1-094, Transcript 13 July 2005, pp. 40–41; Witness TF1-167, Transcript 15 September 2005, pp. 53–54; Witness TF1-167, Transcript 16 September 2005, pp. 42–44, 53–54, 64–65; Witness TF1-334, Transcript 17 May 2005, Transcript 23 May 2005, Transcript 14 June 2005, Transcript 15 June 2005. 65 See Norman Judgement of Acquittal, supra note 493, para. 118; Joint Legal Part, supra note 499, para. 53; Response, supra note 491, para. 85. interlocutory decisions – trial chamber 699

1. The constitutive elements of Violations of Article 3 Common to the Geneva Conventions and of Additional Protocol II; 2. A punishment imposed upon protected persons for acts that they have not committed; and 3. The intent, on the part of the offfender, to punish the protected persons or group of protected persons for acts which form the subject of the punishment. Submissions Joint Legal Part 63. The Joint Defence submitted that the Prosecution failed to adduce any “concrete” evidence against the accused Kanu. The Defence further submitted that there was no evidence to prove that members of the AFRC or RUF or “of those organizations acting in concert with Kanu” had committed collective punishments. In addition, the Joint Defence argued that there was no evidence “that the Accused would have done so while holding a position of superior responsibility and exercising efffective control over them in relation to this crime.” 66 Kanu Motion 64. Counsel for Kanu argued that the Indictment does not state any specifĳic area in the country where these crimes would have been committed, nor does it mention any specifĳic time frame other than “the general frame of the Indictment, i.e. after 30 November 1996.” 65. It was also submitted that there had been no evidence that Kanu bore any individual criminal responsibility for this crime, nor had there been any evidence of any superior responsibility or joint criminal enterprise.67 Prosecution Response 66. The Prosecution submitted that the evidence relied upon to prove Counts 1 and 2 variously relates to some or all of the remaining Counts 3 to 14 inclusive and that accordingly, issues as to time frame and location are answered by the specifĳicity of paragraphs 42 to 79 inclusive of the Indictment (which set out the remaining Counts 3 to 14).68 67. In addition, the Prosecution submitted that, contrary to the Defence assertions, there is sufffĳicient evidence of collective punishments, including evidence of superior responsibility for the crime. As an example, the Prosecution referred to

66 See Joint Legal Part, supra note 499, para. 54. 67 Kanu Motion, supra note 490, paras. 4–6. 68 Response, supra note 491, para. 86. 700 part ii the evidence of Witness TF1-334, recounting an incident in which the Accused Brima ordered a company commander to shoot some civilians. The same witness testifĳied to a meeting in Kamagbengbe at which the Accused Brima, in the presence of the other two Accused Kamara and Kanu, ordered the destruction of Karina.69 68. In challenging the submissions made on behalf of Kanu, the Prosecution pointed out that there is the evidence of Witness TF1-167 to show that Kanu was present when orders for collective punishments were given by the Accused Brima that the village of Karina be destroyed and people killed since it was the home town of President Kabbah.70 69. The Prosecution concluded with the submission that there is evidence on the basis of which a reasonable tribunal of fact could conclude that the Accused Kanu was criminally responsible pursuant to Articles 6.1. and/or 6.3. of the Statute for collective punishments.71

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

2. Counts 3, 4 and 5: Crimes Relating to Unlawful Killings Introduction 71. The Indictment alleges that members of the AFRC/RUF subordinate to and/ or acting in concert with the accused Alex Tamba Brima, Brima Bazzy Kamara and Santigie Borbor Kanu, carried out “unlawful killings that routinely occurred

69 Ibid., para. 87. 70 Response, supra note 491, para. 268. 71 Response, supra note 491, paras. 266–269. 72 The following references to the evidence are by no means exhaustive: Witness TF1-023, Transcript 9 March 2005, p. 37; Witness TF1-098, Transcript 5 April 2005, pp. 39–41; Witness TF1-278, Transcript 6 April 2005, p. 9; Witness TF1-084, Transcript 6 April 2005, p. 39; Witness TF1-227, Transcript 8 April 2005, pp. 102–103; Witness TF1-021, Transcript 15 April 2005, p. 28; Witness TF1-334, Transcript 20 May 2005, pp. 12–13, Transcript 23 May 2005, p. 68–69, Transcript 14 June, pp. 66–67, 84, 97; Witness TF1-122, Transcript 24 June 2005, p. 33; Witness TF1-157, Transcript 25 July 2005, p. 5, Transcript 26 September 2005, p. 9; Witness TF1-167, Transcript 15 September 2005, pp. 43, 53–54. interlocutory decisions – trial chamber 701 through shooting, burning or hacking to death of victims” in various locations in the territory of Sierra Leone, including Bo District between 1 to 30 June 1997;73 Kenema District between 25 May 1997 and about 19 February 1998;74 Kono and Kailahun Districts between 14 February 1998 and 30 June 1998;75 Koinadugu District between 14 February 1998 and 30 September 1998;76 Bombali District between 1 May 1998 and 30 November 1998;77 Freetown and the Western Area between 6 January 1999 and 28 February 1999;78 and Port Loko District between February and April 1999.79 72. In particular, the Indictment alleges that by their acts or omissions in relation to these events, each of the accused persons Brima Kamara and Kanu is individually criminally responsible pursuant to Article 6.1 and/or 6.3 of the Statute, for the crime against humanity of Extermination, punishable under Article 2 b. of the Statute (Count 3); in addition to or in the alternative, the crime against humanity of Murder, punishable under Article 2 a. of the Statute” (Count 4), and in addition to or in the alternative, Violence to life, health and physical or mental well-being of persons, in particular murder, a violation of Article 3 Common to the Geneva Conventions and of Additional Protocol II, punishable under Article 3.a. of the Statute (Count 5).

2.1. Count 3: Extermination (Article 2.b. of the Statute) Elements of the Crime 73. Extermination as a crime against humanity has been defĳined in international humanitarian law as “the intentional mass killing or destruction of part of a population as part of a widespread or systematic attack upon a civilian population.”80 The Trial Chamber endorses the view expressed by the ICTR that a perpetrator may be guilty of the crime of Extermination if he kills or destroys one individual as long as that killing of that individual is part of a mass killing event;81 and that unlike the crime of Genocide, the crime of Extermination does not require a discriminatory intent.82 The Trial Chamber adopts the following

73 Indictment, supra note 479, para. 43. 74 Ibid., para. 44. 75 Ibid., paras. 45–46. 76 Ibid., para. 47. 77 Ibid., para. 48. 78 Ibid., para. 49. 79 Ibid., para. 50. 80 Akayesu Trial Chamber Judgement, supra note 519, paras. 590–592; Kayishema & Ruzindana Judgement, supra note 519, paras. 137–147; Prosecutor v. Rutaganda, ICTR-96-3-T, Trial Chamber Judgement, 6 December 1999, [“Rutaganda Judgement”] paras. 82–84; Prosecutor v. Krstic, ICTY IT-98-33-T, Trial Chamber Judgement, 2 August 2001, [“Krstic Judgement”], para. 503. 81 Kayishema & Ruzindana Judgement, supra note 557, para. 147. 82 Krstic Judgement, supra note 557, para. 500. 702 part ii elements of the crime against humanity of Extermination as charged under Count 3 of the Indictment, namely that– (a) The perpetrator intentionally caused the death or destruction of one or more persons by any means including the infliction of conditions of life calculated to bring about the destruction of a numerically signifĳicant part of a population; (b) The killing or destruction constituted part of a mass killing of members of a civilian population; (c) The mass killing or destruction was part of a widespread or systematic attack directed against a civilian population; and (d) The perpetrator knew or had reason to know that his acts or omissions constituted part of a widespread or systematic attack directed against a civilian population.

2.2. Count 4: Murder (Article 2.a. of the Statute) Elements of the Crime 74. Murder as a crime against humanity has been defĳined in international humanitarian law as “the intentional killing of a person as part of a widespread or systematic attack upon a civilian population.”83 The Trial Chamber adopts the following elements of the crime against humanity of Murder as charged under Count 4, namely that– (a) The perpetrator by his acts or omission caused the death of a person or persons; (b) The perpetrator had the intention to kill or to cause serious bodily harm in the reasonable knowledge that it would likely result in death; (c) The murder was committed as part of a widespread or systematic attack directed against a civilian population; and (d) The perpetrator knew or had reason to know that his acts or omissions constituted part of a widespread or systematic attack directed against a civilian population.

2.3. Count 5: Murder (Article 3.a. of the Statute) Elements of the Crime 75. Murder as a violation of Article 3 Common to the Geneva Convention and of Additional Protocol II has been defĳined in international humanitarian law as “the wilful killing of a person or persons protected under the Geneva Conventions of

83 Akayesu Trial Chamber Judgement, supra note 519, paras. 589–590; Kayishema & Ruzindana Judgement, supra note 519, para. 140; Rutaganda Judgement, supra note 557, paras. 79–81; Krstic Judgement, supra note 557, paras. 484–485. interlocutory decisions – trial chamber 703

1949 and Additional Protocol II during an armed conflict.”84 International law permits killing or wounding in military conflicts so long as the rules of international humanitarian law are complied with. The four Geneva Conventions and Additional Protocol II proscribe the killing or wounding of persons taking no active part in the hostilities, including the wounded or sick (Article 13 of Geneva Conventions I & II); prisoners of war or persons who have fallen into enemy hands (Article 4(A) of Geneva Convention III); those who fĳind themselves in the hands of a hostile party to the conflict or in the territory it controls (Article 4(1) of Geneva Convention IV); and members of the armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention or any other cause (Article 3(1) common to Geneva Conventions I to IV and Article 4(1) Additional Protocol II). Thus while Article 3 of the Statute of the Special Court does not articulate the elements of each war crime, these crimes must be construed in light of the international humanitarian law and jurisprudence interpreting the various provisions of the Geneva Conventions as well as the peculiar circumstances of the Sierra Leonean conflict. 76. As earlier observed, although the above rules were originally applicable to international conflict, International Tribunals have adapted them to take into account new realities including inter-ethnic, inter-religious and other intra-state conflicts “between government authorities and organised armed groups or between such groups.”85 The Appeals Chamber of the Special Court has ruled that the same rules are equally applicable to internal armed conflicts such as the Sierra Leonean conflict. The Appeals Chamber observed that “The distinction is no longer of great relevance in relation to the crimes articulated in Article 3 of the Statute as these crimes are prohibited in all conflicts. Crimes during internal armed conflict form part of the broader category of crimes during international armed conflict. In respect of Article 3 therefore, the Court need only be satis- fĳied that an armed conflict existed and that the alleged violations were related to the armed conflict.”86 77. The Trial Chamber adopts the following elements of the crime of Murder as a violation of Article 3 Common to the Geneva Convention and of Additional Protocol II, as charged under Count 5, namely that– (a) The perpetrator inflicted grievous bodily harm upon the victim in the reasonable knowledge that such bodily harm would likely result in death; (b) The perpetrator’s acts or omission resulted in the death of the victim;

84 Article 3 Common of the Geneva Conventions I, II, III and IV of 1949. 85 Tadic Appeals Chamber Judgement, supra note 510, para. 166; Prosecutor v. Aleksovski, ICTY IT-95-14/1-A, Appeals Chamber Judgement, 24 March 2000, para. 151; Tadic Appeals Chamber Decision on Interlocutory Appeal on Jurisdiction, supra note 528, para. 70. 86 Fofana Appeals Chamber Decision on Lack of Jurisdiction Materiae; Nature of Armed Conflict, supra note 527, para. 25. 704 part ii

(c) The victim was a person protected under one or more of the Geneva Conventions of 1949 or was not taking an active part in the hostilities at the time of the alleged violation; (d) The violation took place in the context of and was associated with an armed conflict; and (e) The perpetrator was aware of the factual circumstances that established the protected status of the victim. 78. Individual criminal responsibility for the crimes under Counts 3, 4 and 5 is established by evidence showing that the perpetrator (or his subordinate with the superior’s knowledge) planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of the above crimes in the Districts of Bo, Kenema, Kono, Kailahun, Koinadugu, Bombali, Freetown and Western Area and Port Loko as charged in paragraphs 42 to 50 of the Indictment.87 For purposes of this Judgement, the Trial Chamber must determine pursuant to Rule 98 of the Rules whether or not the Prosecution evidence adduced is capable of supporting a conviction against each of the three accused persons on Count 3 (Extermination) and/or Count 4 (Murder) and/or Count 5 (Murder).

2.4. Submissions for Counts 3, 4 and 5 Joint Legal Part 79. The Defence jointly submitted that the accused persons should be acquitted on all Counts alleging “crimes against humanity,” on the grounds that the Prosecution has failed to prove to the required standard two of the chapeau elements, namely that (a) attacks on the population were widespread or systematic, and (b) that the alleged offfences were committed as part of the attack.88 Counsel relied on the procedure adopted by the ICTR and ICTY in the cases of Prosecutor v. Ferdinand Nahimana et al.89 and Prosecutor v. Dusko Sikirica et al.90 respectively.91 Brima Motion 80. In addition to the joint Defence submissions, Counsel for the accused Brima submitted that his client should be acquitted in respect of Count 3 of the Indictment (Extermination) as the Prosecution has failed to prove any of the elements of that offfence to the required standard. In particular the Prosecution failed to prove (a) that a particular population was targeted, and (b) that its members

87 Article 6(1) and (3) of the SCSL Statute. 88 Joint Legal Part, supra note 499, paras. 42–47. 89 Nahimana Reasons for Oral Decision 17 September 2002, supra note 487, para. 19. 90 Prosecutor v. Sikirica et al., ICTY IT-95-8-T, Judgement on Defence Motions to Acquit, 3 September 2001, para. 9. 91 Joint Legal Part, paras. 42 and 43 interlocutory decisions – trial chamber 705 were killed or otherwise subjected to conditions of life calculated to bring about the destruction of a numerically signifĳicant part of the population.92 81. Counsel for Brima argued with respect to the crime of Murder, that the Prosecution failed to prove that “the victims were persons taking no active part in the hostilities.”93 In support of this argument Counsel cited the elements of the war crime of Murder adopted by Trial Chamber I in the case of Prosecutor v. Norman et al.94 82. Regarding the various locations where the unlawful killings are alleged to have taken place and mentioned in paragraphs 43 to 50 of the Indictment, Counsel submitted in relation to– (a) Bo District, that the Prosecution failed to prove that any of the crimes alleged in Counts 3, 4 and 5 of the Indictment was committed in Tikonko, Telu, Sembehun, Gerihun, and Mamboma.95 In addition, the Prosecution failed to adduce any evidence of an attack generally by the AFRC or particularly by Brima in that District or to link Brima to the activities of the RUF in Bo.96 Furthermore the evidence of Prosecution Witnesses TF1- 004, TF1-053, TF1-054 in this regard is contradictory and unreliable;97 (b) Kenema District, that the Prosecution failed to prove that Brima was individually criminally responsible for crimes allegedly committed in that District or that persons under his command or control took part in the alleged crimes, during the period alleged in the Indictment. The evidence of Prosecution Witnesses TF1-122, TF1-045, TF1-062 and TF1-167 in this regard is contradictory and unreliable and shows instead, that members of the RUF were in control of Kenema District during the alleged period and were responsible for the commission of the alleged crimes in that District;98 (c) Kono District, that the Prosecution failed to prove that Brima or the AFRC were in command and control of Kono District after the ECOMOG intervention, or to link Brima or the AFRC to any of the atrocities committed in Kono. The evidence of Prosecution Witnesses TF1-167, TF1-033, TF1-334, TF1-045 and TF1-072 in this regard is contradictory, uncorroborated and unreliable and shows instead, that members of the RUF were responsible for the commission of the alleged crimes in that District

92 Brima Motion, supra note 490, paras. 20–25. 93 Ibid., para. 26. 94 Norman Judgement of Acquittal, supra note 493, para. 72. 95 Brima Motion, supra note 490, para. 27. 96 Ibid., paras. 34–35. 97 Ibid., paras. 27–35. 98 Ibid., paras. 36–40. 706 part ii

during the period alleged in the Indictment.99 In addition, the Prosecution failed to prove that any of the crimes alleged in Counts 3, 4 and 5 of the Indictment was committed in Foindu, Willifeh, Mortema or Biaya;100 (d) Kailahun District, that the Prosecution failed to prove that Brima or the AFRC were in command and control of the perpetrators in Kailahun District during the period alleged in the Indictment, or that they were linked to the commission of the alleged crimes in that District. The evidence of Prosecution Witnesses TF1-045, TF1-167, TF1-334 and TF1-113 shows instead, that members of the RUF were in control of Kailahun District during the alleged period and were responsible for the commission of the alleged offfences in that District;101 (e) Koinadugu District, that the Prosecution failed to prove that Brima was individually criminally responsible for crimes allegedly committed there or that persons under his command or control took part in the alleged crimes in that District, for the duration of the war. The evidence of Prosecution Witnesses TF1-310 and TF1-167 shows instead, that members of the RUF were in control of Kailahun District during the alleged period and were responsible for the commission of the alleged offfences in that District;102 (f) Bombali District, that the Prosecution failed to prove that Brima was individually criminally responsible for crimes allegedly committed in that District. The evidence of Prosecution Witnesses TF1-157, TF1-167 and TF1-334 relating to crimes allegedly committed in that District is insufffĳi- cient, contradictory and unreliable;103 (g) Freetown and Western Area, that the evidence of Prosecution Witness TF1-021 relating to crimes allegedly committed there is insufffĳicient, contradictory and unreliable and shows that members of the RUF were responsible for the commission of the alleged offfences in that District.104 Kamara Motion 83. In addition to the joint Defence submissions, Counsel for the accused Kamara submitted that his client should be acquitted in respect of Counts 3, 4 and 5 of the Indictment because the Prosecution failed to prove any of the elements of those offfences to the required standard.105 Regarding the various locations where

99 Ibid., paras. 41–49. 100 Ibid., para. 44. 101 Ibid., paras. 50–53. 102 Ibid., paras. 54–56. 103 Ibid., para. 57. 104 Ibid., para. 58. 105 Prosecutor v. Alex Tamba Brima et al., SCSL-04-16-T, Defence Motion for Judgement of Acquittal of the Second Accused, Brima Bazzy Kamara, 12 December 2005 [“Kamara Motion”], paras. 50–51. interlocutory decisions – trial chamber 707 the offfences are alleged to have taken place and mentioned in paragraphs 43 to 50 of the Indictment, Counsel submitted in relation to– (a) Bo District, that the Prosecution failed to prove that Kamara was in Bo during the period alleged in the Indictment or that persons under his command, authority or direction, took part in the alleged crimes there. The evidence of Prosecution Witnesses TF1-004, TF1-053, TF1-054 shows instead, that members of the RUF were responsible for the alleged killings in Bo during the alleged period;106 (b) Kenema District, that the Prosecution failed to prove that Kamara was in Kenema during the period alleged in the Indictment or that persons under his command, authority or direction, participated in the commission of the alleged crimes there. The evidence of Prosecution Witnesses TF1-122, TF1-045 and TF1-062 in this regard shows instead, that members of the RUF were in control of the Eastern Province and were responsible for the alleged killings in Kenema District during the alleged period;107 (c) Kono District, that the Prosecution failed to prove that either Kamara or persons under his command, authority or direction, participated in the commission of alleged crimes there. While Prosecution Witnesses TF1- 019, TF1-072, TF1-074, TF1-076, TF1-198, TF1-206, TF1-216, and TF1-217 did not refer to Kamara at all in their testimonies, the evidence of Prosecution Witnesses TF1-033, TF1-167 and TF1-334 in this regard is insufffĳicient, contradictory and unreliable.108 (d) Kailahun District, that the Prosecution failed to prove that Kamara was in Kailahun during the period alleged in the Indictment or that persons under his command, authority or direction, participated in the commission of the alleged crimes there. The evidence of Prosecution Witnesses TF1-045, TF1-114 and TF1-113 shows instead, that members of the RUF were in control of Kailahun District during the alleged period and were responsible for the alleged killings there;109 (e) Koinadugu District, that the Prosecution failed to prove that either Kamara or persons under his command, authority or direction, participated in the commission of alleged crimes there. While Prosecution Witnesses TF1-094, TF1-133, TF1-147, TF1-209 and TF1-310 did not refer to Kamara at all in their testimonies, the evidence of Prosecution Witnesses TF1-033, TF1-153, TF1-167, TF1-334 and TF1-184 in this regard is insufffĳicient

106 Ibid., paras. 20.1–20.3. 107 Ibid., paras. 20.4–20.6. 108 Ibid., paras. 20.7–20.9. 109 Ibid., paras. 20.10–20.12. 708 part ii

and does not implicate Kamara or persons under his command, authority or direction in the alleged killings in that District;110 (f) Bombali District, that the Prosecution failed to prove that either Kamara or persons under his command, authority or direction, participated in the commission of alleged crimes there. While Prosecution Witnesses TF1-055, TF1-157, TF1-158, TF1-179, TF1-180, TF1-199 and TF1-267 did not mention Kamara at all in their testimonies, the evidence of Prosecution Witnesses TF1-033, TF1-153, TF1-167, TF1-184 and TF1-334 in this regard is contradictory and unreliable and does not implicate Kamara or persons under his command, authority or direction in the alleged killings in that District;111 (g) Freetown and Western Area, that the Prosecution failed to prove that either Kamara or persons under his command, authority or direction, participated in the commission of alleged crimes there. While Prosecution Witnesses TF1-021, TF1-024, TF1-083, TF1-084, TF1-085, TF1- 098, TF1-104, TF1-169, TF1-277 and TF1-278 did not mention Kamara at all in their testimonies, the evidence of Prosecution Witnesses TF1-023, TF1- 045, TF1-153, TF1-167, TF1-184, TF1-227, TF1-334 and Mr. Gibril Massaquoi in this regard is insufffĳicient, contradictory and unreliable and does not implicate Kamara or persons under his command, authority or direction in the alleged killings in that District.112 (h) Port Loko District, that the Prosecution failed to prove that either Kamara or persons under his command, authority or direction, participated in the commission of alleged crimes there. While Prosecution Witnesses TF1-021, TF1-024, TF1-083, TF1-084, TF1-085, TF1-098, TF1-104, TF1-169, TF1- 277 and TF1-278 did not mention Kamara at all in their testimonies, the evidence of Prosecution Witnesses TF1-023, TF1-045, TF1-153, TF1-167, TF1-184, TF1-227, TF1-334 and Mr. Gibril Massaquoi in this regard is unreliable and does not implicate Kamara or persons under his command, authority or direction in the alleged killings in that District. The Prosecution also failed to prove that Kamara participated in a joint criminal enterprise with any person or group of persons in Port Loko District.113 Kanu Motion 84. In addition to the joint Defence submissions, Counsel for the accused Kanu submitted that his client should be acquitted on the grounds that the Prosecution

110 Ibid., paras. 20.13–20.15. 111 Ibid., paras. 20.16–20.18. 112 Ibid., paras. 20.19–20.21. 113 Ibid., paras. 20.22–20.24. interlocutory decisions – trial chamber 709 failed to prove that Kanu is one of the persons who “bear the greatest responsibility for serious violations of international humanitarian law and Sierra Leonean law,” as required by Article 1.1 of the Statute.114 85. Counsel submitted that Kanu should be acquitted in respect of Counts 3 of the Indictment (Extermination), because the Prosecution failed to prove to the required standard (a) two of the essential elements of the crime of Extermination namely, “mass destruction” and “a plan to bring about the destruction of part of a population,” and (b) Kanu’s participation individually or as a commander or as a participant in a joint criminal enterprise, in the crime of Extermination.115 86. Counsel submitted that Kanu should be acquitted in respect of Counts 4 and 5 of the Indictment because the Prosecution failed to prove that Kanu bears any individual criminal responsibility for the alleged crimes through direct participation or through superior responsibility or through a joint criminal enterprise as required by Article 6 of the Statute.116 87. Regarding the various locations where offfences under Counts 4 and 5 are alleged to have taken place and mentioned in paragraphs 43 to 50 of the Indictment, Counsel submitted in relation to– (a) Bo District, that the Prosecution failed to prove that Kanu was present in that District and in particular in Tinkoko, Telu, Sembehun, Gerihun and Mamboma, during the period alleged in the Indictment; or that such crimes were in fact committed Telu and Sembehun; or that he bears any individual criminal responsibility for the alleged crimes as a commander or as a participant in a joint criminal enterprise;117 (b) Kenema District, that the Prosecution failed to prove that Kanu was present in that District or in Kenema Town during the period alleged in the Indictment or that he bears any individual criminal responsibility for the alleged crimes as a commander or as a participant in a joint criminal enterprise;118 (c) Kono District, that the Prosecution failed to prove that either the RUF or the AFRC committed any of the crimes alleged under Counts 4 and 5 in Foindu, Wollifeh, Mortema and Biaya during the alleged period; or that hundreds of people were in fact killed in Kono District; or that Kanu bears any individual criminal responsibility for the alleged crimes as a commander or as a participant in a joint criminal enterprise;119

114 Kanu Motion, supra note 490, paras. 1–4. 115 Ibid., paras. 7–11. 116 Ibid., paras. 12–30. 117 Ibid., paras. 12–13. 118 Ibid.., paras. 14–15. 119 Ibid., paras. 16–19. 710 part ii

(d) Kailahun District, that the Prosecution has failed to prove that Kanu was present in that District during the period alleged in the Indictment; or that the crime of Murder was in fact committed in Kailahun; or that he bears any individual criminal responsibility for the alleged crimes as a commander or as a participant in a joint criminal enterprise;120 (e) Koinadugu District, that the Prosecution failed to prove that Kanu was present in Heremakono, Kumalu/Kamalu, Katombo and Fadugu during the period alleged in the Indictment; or that he directly participated in the commission of the alleged crimes in that District; or that he bears any individual criminal responsibility as a commander or as a participant in a joint criminal enterprise;121 (f) Bombali District, that the Prosecution failed to prove that Kanu was present in Bonyoyo/Bornoya and Mafabu during the period alleged in the Indictment; or that he directly participated in the commission of the alleged crimes in that District; or that he bears any individual criminal responsibility as a commander or as a participant in a joint criminal enterprise.122 Prosecution Response 88. Counsel for the Prosecution submitted that the Prosecution evidence is suf- fĳicient to enable a reasonable tribunal of fact to conclude that all the chapeau elements of crimes against humanity alleged in Counts 3, 4, 7, 8, 11 and 13 of the Indictment have been established.123 With regard to Count 3 of the Indictment, the Prosecution maintained that it has adduced sufffĳicient evidence showing that the three accused persons are criminally responsible for acts of extermination committed as part of a widespread and systematic attack against a civilian population in Karina, Tombodu, Kukuna, Madina, Mange Bureh and Lunsar Town.124 With regard to Counts 4 and 5 of the Indictment, the Prosecution submitted that it has sufffĳiciently proved the requisite elements of those crimes.125 89. While conceding that the Prosecution led no evidence of unlawful killings in the following villages, namely, Telu, Sembehun and Mamoma in Bo District; Foindu, Wollifeh and Biaya in Kono District; Heremakono, Kumalu, Katombo and Kamadugu in Koinadugu District; Mafabu in Bombali District and Tendakum in Port Loko District, Counsel for the Prosecution maintained that the Prosecution evidence of “widespread or systematic” killings of civilians in respect of all other

120 Ibid., paras. 20–21. 121 Ibid., paras. 22–23. 122 Ibid., paras. 24–25. 123 Response, supra note 491, paras. 73–78. 124 Ibid., paras. 88–90, 270. 125 Ibid., para. 91. interlocutory decisions – trial chamber 711 locations mentioned in paragraphs 43-50 of the Indictment,126 and in respect of other villages in these Districts not specifĳically pleaded in the Indictment127 is capable of sustaining a conviction under Counts 3, 4 and 5 against each of the accused persons, and that the weight, credibility and/or reliability of that evidence is irrelevant at this stage.128 90. Regarding the various locations mentioned in paragraphs 43 to 50 of the Indictment where offfences under Counts 3, 4 and 5 are alleged to have taken place, Counsel for the Prosecution submitted in relation to– (a) Bo and Kenema Districts, that the Prosecution adduced sufffĳicient evidence showing that the alleged crimes took place soon after the AFRC/ RUF Junta Government took over power; that perpetrators comprising members of the RUF and AFRC committed the alleged crimes against civilians in furtherance of a joint criminal enterprise; that perpetrators of the alleged crimes reported directly to the Supreme Council; and that as members of the ruling AFRC/RUF Junta and Supreme Council, each of the three accused persons was a participant in the joint criminal enterprise and is criminally responsible under Article 6(1) and (3) of the Statute for the alleged crimes in those Districts;129 (b) Kono District, that the Prosecution adduced sufffĳicient evidence showing that after the ECOMOG intervention (the time of the alleged crimes), Brima was in Kono and gave orders to his subordinates in Tombodu for the abduction, amputation and killing of civilians and that he had knowledge of crimes committed by his subordinates during “Operation Spare No Soul” and “Operation No Living Thing”; that in addition to the villages pleaded in the Indictment, unlawful killings took place at Yardu Sandu, Gbiama, Wordu, Koidu Buma, Koidu Geiya, Bomboafoidu, Penduma and Paema; that Kamara was in charge of collecting arms and bringing them back to Superman; that he had knowledge of the unlawful killings by his subordinates that took place in Kono District; and that the perpetrators carried out the alleged crimes in furtherance of a joint criminal enterprise in respect of which each of the three accused persons participated and is criminally responsible under Article 6(1) and (3) of the Statute;130 (c) Kailahun and Koinadugu Districts, that the Prosecution adduced sufffĳi- cient evidence showing that in addition to the villages pleaded in the

126 Ibid., para. 118. 127 Ibid., paras. 127, 134, 138, 140, 278. 128 Ibid., para. 121. 129 Ibid., paras. 119–125, 200–203, 271–275. 130 Ibid., paras. 126–129, 204–206, 276–279. 712 part ii

Indictment, unlawful killings took place at Bamukura, Yemadugu and Yifffĳin; that perpetrators comprising members of the RUF and AFRC committed the alleged crimes there in furtherance of a joint criminal enterprise in respect of which each of the three accused persons participated and is criminally responsible under Article 6(1) and (3) of the Statute;131 (d) Bombali District, that the Prosecution adduced sufffĳicient evidence showing that Brima, in the presence of Kamara ordered and/or participated in the unlawful killing of civilians in Bumbuna, Kamagbengbe, Mandaha, Foroh Loko, Camp Rosos and Karina; that Kamara and Kanu participated in burning civilians to death in Karina; and that RUF/AFRC Junta troops committed the alleged crimes there in furtherance of a joint criminal enterprise in respect of which each of the three accused persons participated and is criminally responsible under Article 6(1) and (3) of the Statute;132 (e) Freetown and the Western Area, that the Prosecution adduced sufffĳicient evidence showing that Brima was in command of the troops that invaded Freetown and that he ordered the unlawful killing of civilians in the presence of Kamara and Kanu; that Kamara participated in some of those killings; and that the perpetrators committed the alleged crimes there in furtherance of a joint criminal enterprise in respect of which each of the three accused persons participated and is criminally responsible under Article 6(1) and (3) of the Statute;133 (f) Port Loko District, that the Prosecution adduced sufffĳicient evidence showing that each of the three accused persons is criminally responsible pursuant to Article 6(1) and (3) of the Statute for crimes committed in that District; that Kamara commanded the AFRC troops that withdrew from Freetown and ordered them to commit the alleged crimes in the Westside Jungle, Mamah Town and Manarma; and that Kanu was present in Sumbuya and ordered the killings in Sumbuya, Masiaka and Gbinti Town.134 Joint Defence Reply 91. Defence Counsel for Brima and Kamara reiterated that the Prosecution is under a legal obligation to prove every particular as set out in the Indictment and that where the Prosecution has conceded failure to adduce evidence of crimes

131 Ibid., paras. 130–136, 207–210, 280–284. 132 Ibid., paras. 137–141, 211–214, 285–287. 133 Ibid., paras. 142–144, 215–216, 288. 134 Ibid., paras. 145, 217–222, 289–291. interlocutory decisions – trial chamber 713 having been committed in certain locations specifĳied in the Indictment, the accused persons should be acquitted on those counts.135 Brima Reply 92. Counsel for the accused Brima submitted that the Prosecution has failed to adduce any evidence that Brima personally committed any of the alleged crimes or that he exercised any control over the perpetrators of the alleged crimes in the Districts of Bo, Kenema, Kono, Kailahun and Bombali, and that in any event, the Prosecution evidence implicating Brima is contradictory and unreliable.136 Kamara Reply 93. Counsel for the accused Kamara submitted that the Prosecution has failed to prove that Kamara directly or indirectly participated in the commission of the alleged crimes in Kono and Koinadugu Districts and in the Freetown and Western Area; and that in any event, the Prosecution evidence implicating Kamara is contradictory and unreliable.137 Kanu Reply 94. Counsel for the accused Kanu reiterated that the Prosecution is under a legal obligation to prove every particular as set out in the Indictment and that where the Prosecution has conceded having led no evidence of crimes having been committed in certain locations specifĳied in the Indictment, the Trial Chamber should strike those locations from the Indictment.138 Similarly, where a Prosecution witness has given evidence relating to a location whose names difffers phonetically from the name specifĳied in the Indictment the latter names should be struck from the Indictment as the Prosecution has failed to prove that the two names refer to the same location.139 Counsel reiterated that the Prosecution evidence implicating Kanu in the unlawful killing of civilians in the Districts of Bo, Kono, Bombali and Port Loko is insufffĳicient and unreliable.140

2.5. Findings for Counts 3, 4 and 5 General fĳindings 95. The Defence argued that the elements of the crimes of Murder and Extermination as crimes against humanity overlap, to the prejudice of the Defence

135 Joint Defence Reply, supra note 490, paras. 8–9. 136 Brima Reply, supra note 538, paras. 2–10. 137 Kamara Reply, supra note 539, paras. 2–4. 138 Kanu Reply, supra note 490, paras. 2–5. 139 Ibid., paras. 6, 26. 140 Ibid., paras. 22–26. 714 part ii

Case. While we agree that some of the elements of the crime of Extermination overlap those of the crime of Murder, the two crimes against humanity are not identical. As stated above, the single element that distinguishes the former from the latter is that in the case of Extermination, the murder (whether of one or more persons) “constitutes part of a mass killing of members of a civilian population.” Given that the two crimes are essentially diffferent and are charged concurrently as well as in the alternative under Counts 3 and 4 of the Indictment, we fĳind no merit in the Defence claim of prejudice. 96. Regarding the Defence submission that the Trial Chamber ought to strike from the Indictment the names of certain villages in respect of which the Prosecution has failed to adduce any evidence of crimes having been committed or whose names are spelled diffferently in the Indictment from similar locations given by the witnesses, we note that the Prosecution indeed conceded that no evidence of crime was led with regard to certain locations named in the Indictment. These include Telu, Sembehun and Mamoma in Bo District; Foindu, Wollifeh and Biaya in Kono District; Heremakono, Kumalu, Katombo and Kamadugu in Koinadugu District; Mafabu in Bombali District and Tendakum in Port Loko District. In light of the Prosecution evidence referred to below, we fĳind no merit in the Defence objections and refer to our earlier views contained in Part III of this Decision. 97. Regarding the Defence submission that some of the Prosecution witnesses were contradictory and/or unreliable, the Trial Chamber can only reiterate its earlier view, namely, that the object of the inquiry under Rule 98 is not to make determinations of fact having weighed the credibility and reliability of the evidence; and that rather, it is simply to determine whether the evidence – assuming that it is true – could not possibly sustain a conviction on one or more counts.

Findings with regard to Count 3 (Extermination) 98. The Trial Chamber fĳinds that there is evidence, if believed, upon which a reasonable tribunal of fact could be satisfĳied beyond reasonable doubt, of the guilt of each of the accused Brima, Kamara and Kanu, with respect to the mass killings that took place during the periods alleged in the Indictment at various locations including141 Tikonko Town142 and Gerihun143 in Bo District; at Manarma,144

141 The evidence referred to in this paragraph is by no means exhaustive of all the evidence available on the record. See also Prosecution Exhibit 57. 142 Witness TF1-004, Transcript 23 June 2005, pp. 12–15, 17–31, 56–57. 143 Witnesses TF1-053, Transcript 18 April 2005, pp. 105–111; Witness TF1-054, Transcript 19 April 2005, pp. 92–94. 144 Witness TF1-320, Transcript 8 April 2005, pp. 14–16. interlocutory decisions – trial chamber 715

Mammah Town,145 Mile Thirty-Eight,146 Songo,147 Nonkoba,148 Gberibana,149 Makolo,150 Masimera,151 Lunsar Town152 in Port Loko District; at Freetown,153 Kissy,154 Thomas Place155 and Fourah Bay Area156 in Freetown and Western Area; at Koidu Geya,157 Koidu Buma,158 Paema,159 Penduma,160 Tombodu,161 Koidu Town,162 and Buedu163 in Kono District; at Gbendembu,164 Karina,165 Gberemantmatank (Eddie Town),166 Rosos,167 Bat Mise, near Camp Rosos,168 Bornoya169 in Bombali District; Kenema Town170 and Tongo Field171 in Kenema District; Kailahun Town172 in Kailahun District, and Freetown173 in the Freetown and Western Area,174 as part of a widespread or systematic attack upon a civilian population.

145 Witness TF1-334, Transcript 15 June 2005, pp. 20–21. 146 Witness TF1-023, Transcript 10 March 2005, pp. 36–37. 147 Witness TF1-277, Transcript 11 April 2005, pp. 30–31; Witness TF1-253, Transcript 15 April 2005, p. 102–103; Witness TF1-334, Transcript 15 June 2005, pp. 20–21. 148 Witness TF1-256, Transcript 14 April 2005, pp. 72–77, 82–85. 149 Witness TF1-334, Transcript 15 June 2005, pp. 27–30. 150 Witness TF1-334, Transcript 15 June 2005, pp. 38–40. 151 Witness TF1-256, Transcript 14 April 2005, pp. 47–48. 152 Witness TF1-033, Transcript 11 July 2005, p. 45. 153 Witnesses TF1-024, Transcript 7 March 2005, p. 46; Witness TF1-021, Transcript 15 April 2005, pp. 25–28; Witness TF1-334, Transcript 14 June 2005, pp. 43–45, 72–73, 84–89, 96–97; Witness TF1-084, Transcript 6 April 2005, pp. 40–44; Witness TF1-104, Transcript 30 June 2005, pp. 25–29. 154 Witnesses TF1-083, Transcript 8 April 2005, pp. 69–70; Witness TF1-021, Transcript 15 April 2005, pp. 25–28, 29–33, 45; Witness TF1-334, Transcript 14 June 2005, pp. 83–89; Witness TF1-227, Transcript 8 April 2005, p. 95. 155 Witness TF1-227, Transcript 8 April 2005, p. 95. 156 Witness TF1-334, Transcript 14 June 2005, pp. 66–67. 157 Witness TF1-334, Transcript 20 May 2005, pp. 22–23. 158 Witness TF1-334, Transcript 20 May 2005, pp. 22–23. 159 Witness TF1-216, Transcript 27 June 2005, pp. 88–89. 160 Witness TF1-217, Transcript 17 October 2005, pp. 17–22. 161 Witness TF1-334, Transcript 20 May 2005, pp. 11–15; Witness TF1-216, Transcript 27 June 2005, pp. 91–93; TF1-033, Transcript 11 July 2005, pp. 10–12; TF1-167, Transcript 15 September 2005, pp. 44–45. 162 Witness TF1-217, Transcript 17 October 2005, pp. 13–14. 163 Witness TF1-113, Transcript 18 July 2005, pp. 89–90. 164 Witness TF1-033, Transcript 11 July 2003, p. 33. 165 Witness TF1-334, Transcript 23 May 2005, pp. 65–69; Witness TF1-055, Transcript 12 July 2005, pp. 132–138, 142; Witness TF1-058, Transcript 14 July 2005, pp. 76–85; Witness TF1-033, Transcript 12 July 2005, pp. 80–84; Witness TF1-167, Transcript 15 September 2005, pp. 54–58. 166 Witness TF1-033, Transcript 11 July 2005, p. 32. 167 Witness TF1-033, Transcript 11 July 2005, pp. 23–25. 168 See confĳidential Exhibit P.15. 169 Witness TF1-157, Transcript 22 July 2005, pp. 56–61. 170 Witness TF1-122, Transcript 24 June 2005, pp. 35–49. 171 Witness TF1-062, Transcript 27 June 2005, pp. 12–13. 172 Witness TF1-113, Transcript 18 July 2005, pp. 87–90, 115–116. 173 Witnesses TF1-098, 5 April 2005, p. 42; TF1-084, 6 April 2005, pp. 40–46; TF1-085, 7 May 2005, pp. 17–25; TF1-083, 8 April 2005, pp. 69–70; TF1-227, 8 April 2005, pp. 95–101; TF1-021, 15 April 2005, pp. 25–28; TF1-334, 14 June 2005, pp. 72–73, 83–89 and 95-97, TF1-104, 30 June 2005, pp. 25–29. 174 In addition, Prosecution Exhibits P.46, P.58 and P.66 contain documentary evidence of mass killings of civilians in the Freetown and Western Area. 716 part ii

99. The Trial Chamber accordingly fĳinds that there is evidence capable of supporting a conviction against each of the accused Brima, Kamara and Kanu for the crime against humanity of Extermination pursuant to Article 2.b. of the Statute, as charged under Count 3 of the Indictment. Findings with regard to Count 4 (Murder) 100. The Trial Chamber fĳinds that there is evidence, if believed, upon which a reasonable tribunal of fact could be satisfĳied beyond reasonable doubt, of the guilt of each of the Accused Brima, Kamara and Kanu, with respect to the murders that took place during the periods alleged in the Indictment, at various locations including175 Gerihun,176 Tikonko177 in Bo District; Kenema Town178 and Tongo Field179 in Kenema District; Koidu Geiya,180 Paema,181 Yardu Sando,182 Wordu,183 Koidu Town184 Tombodu185 and Penduma186 in Kono District; at Kailahun Town187 in Kailahun District; at Yifffĳin,188 Kabala,189 Fadugu190 and Bamukura,191 in Koinadugu District; Kamagbengbe,192 Tonkoba,193 Karina,194 Rosos,195 Mandaha/Mateboi,196 Bornoya,197 Rotu,198 Batkanu,199 Dariya,200 Mayombo201 and Madina Loko202 in

175 The evidence referred to in this paragraph is by no means exhaustive of all the evidence available on the record. 176 Witness TF1-053, Transcript 18 April 2005, pp. 105–111; Witness TF1-054, Transcript 19 April 2005, pp. 89–94. 177 Witness TF1-004, Transcript 23 April 2005, pp. 17–27. 178 Witness TF1-122, Transcript 24 June 2005, pp. 35–49. 179 Witness TF1-062, Transcript 27 June 2005, pp. 12–13. 180 Witness TF1-334, Transcript 20 May 2005, pp. 22–26. 181 Witness TF1-216, Transcript 27 June 2005, pp. 88–89. 182 Witness TF1-019, Transcript 30 June 2005, pp. 91–94. 183 Witness TF1-072, Transcript 1 July 2005, pp. 10–11. 184 Witness TF1-217, Transcript 17 October 2005, pp. 13–14. 185 Witness TF1-167, Transcript 15 September 2005, p. 45. 186 Witness TF1-217, Transcript 17 October 2005, pp. 17–23. 187 Witness TF1-113, Transcript 18 July 2005, pp. 87–90. 188 Witness TF1-310, Transcript 5 July 2005, pp. 65–67, 70–71. 189 Witness TF1-209, Transcript 7 July 2005, pp. 31–36. 190 Witness TF1-167, Transcript 6 October 2005, pp. 77–78. 191 Witness TF1-094, Transcript 13 July 2005, pp. 25, 27. 192 Witness TF1-334, Transcript 23 May 2005, pp. 54–56. 193 Witness TF1-180, Transcript 8 July 2005, pp. 5–7. 194 Witness TF1-055, Transcript 12 July 2005, pp. 132–138; Witness TF1-158, Transcript 26 July 2005, pp. 36–37. 195 Witness TF1-157, Transcript 25 July 2005, pp. 7–10. 196 Witness TF1-157, Transcript 22 July 2005, pp. 81–84. 197 Witness TF1-158, Transcript 26 July 2005, pp. 34–35; TF1-156, Transcript 26 September 2005, pp. 35–40. 198 Witness TF1-267, Transcript 26 July 2005, pp. 104–105. 199 Witness TF1-179, Transcript 27 July 2005, pp. 34–35, 44. 200 Witness TF1-156, Transcript 26 September 2005, p. 45. 201 Witness TF1-156, Transcript 26 September 2005, p. 46. 202 Witness TF1-167, Transcript 6 October 2005, pp. 71–72. interlocutory decisions – trial chamber 717

Bombali District,203 as part of a widespread or systematic attack upon a civilian population. 101. The Trial Chamber accordingly fĳinds that there is evidence capable of supporting a conviction against each of the accused Brima, Kamara and Kanu for the crime against humanity of Murder pursuant to Article 2.a. of the Statute as charged under Count 4 of the Indictment. Findings with regard to Count 5 (Murder) 102. The Trial Chamber fĳinds that there is evidence, if believed, upon which a reasonable tribunal of fact could be satisfĳied beyond reasonable doubt, of the guilt of each of the accused Brima, Kamara and Kanu, with respect to the murders that took place during the periods alleged in the Indictment, at various locations including204 Makolo205 in Port Loko District; Kenema Town206 and Tongo Field207 in Kenema District; Jagbwema Fiama,208 Koidu Buma,209 Wendedu/ Wondedu210 in Kono District; Kabala,211 Kurubola212 and Koidu Town213 in Koinadugu District; Bumbuna,214 Mandaha,215 Foroh Loko216 and Gbendembu217 in Bombali District; Freetown,218 Waterloo,219 in the Freetown and Western Area.220 101. The Trial Chamber accordingly fĳinds that there is evidence capable of supporting a conviction against each of the accused Brima, Kamara and Kanu for

203 In addition, Prosecution 54 contains documentary evidence of unlawful killings of civilians around the villages of Karina, Makeni and Kamalu in Bombali District. 204 The evidence referred to in this paragraph is by no means exhaustive of all the evidence available on the record. 205 Witness TF1-334, Transcript 15 June 2005, pp. 38–40. 206 Witness TF1-122, Transcript 24 June 2005, pp. 19–23. 207 Witness TF1-062, Transcript 27 June 2005, pp. 12–13. 208 Witness TF1-334, Transcript 20 May 2005, pp. 28–30. 209 Witness TF1-334, Transcript 20 May 2005, p. 23. 210 Witness TF1-217, Transcript 17 October 2005, pp. 12–13. 211 Witness TF1-167, Transcript 6 October 2005, pp. 87–88. 212 Witness TF1-184, Transcript 27 September 2005, pp. 17–18. 213 Witness TF1-217, Transcript 17 October 2005, pp. 13–14. 214 Witness TF1-334, Transcript 23 May 2005, pp. 50–52. 215 Witness TF1-334, Transcript 23 May 2005, pp. 77–79. 216 Witness TF1-334, Transcript 23 May 2005, pp. 85–86. 217 Witness TF1-033, Transcript 11 July 2005, p. 34. 218 Witness TF1-024, Transcript 7 March 2005, pp. 47–48; Witness TF1-098, Transcript 5 April 2005, pp. 41–43; Witness TF1-085, Transcript 7 April 2005, pp. 19–20, 22–24; Witness TF1-083, Transcript 8 April 2005, pp. 49, 67–68; TF1-227, Transcript 11 April 2005, pp. 13–15; Witness TF1-334, Transcript 14 June 2005, pp. 22–24, 43–45, 64–65, 97–98; Witness TF1-104, Transcript 30 June 2005, pp. 23–24; Witness TF1-169, Transcript 7 July 2005, pp. 22–24 and 60-64; Witness TF1-033, Transcript 11 July 2005, pp. 63–64; Witness TF1-167, Transcript 16 September 2005, pp. 43–44, 47–48; Witness TF1-153, Transcript 22 September 2005, p. 100; Witness TF1-153, Transcript 23 September 2005, pp. 21–24. 219 Witness TF1-277, Transcript 8 March 2005, pp. 50–51. 220 In addition, Prosecution Exhibits 46 and 66 contain documentary evidence of unlawful killings of non-combatants in the Freetown and Western Area. 718 part ii the crime of Murder as a violation of Article 3 Common to the Geneva Convention and of Additional Protocol II, pursuant to Article 3.a. of the Statute, as charged under Count 5 of the Indictment.

3. Counts 6, 7, 8 and 9: Crimes Relating To Sexual Violence Introduction 104. The Indictment alleges that members of the AFRC/RUF committed widespread sexual violence against civilian women and girls including brutal rapes, often by multiple rapists, forced “marriages,” and acts of sexual violence including abduction of women and girls and use as sex slaves and/or forced into ‘marriages’ and/or subjected to other forms of sexual violence. The ‘wives’ were forced to perform a number of conjugal duties under coercion by their ‘husbands.’ The sexual violence against women and girls occurred between 14 February 1998 and 30 June 1998 in Kono District, between 14 February 1998 and 30 September 1998 in Koinadugu District, between about 1 May 1998 and 31(sic) November 1998 in Bombali District, at all times relevant to the Indictment in Kailahun district, between 6 January 1999 and 28 February 1999 in Freetown and Western Area and between February 1999 and April 1999 in Port Loko District. 105. The Indictment charges that, by their acts or omissions in relation to these events, pursuant to Article 6.1 and, or alternatively Article 6.3 of the Statute, Alex Tamba Brima, Brima Bazzy Kamara and Santigie Borbor Kanu are individually criminally responsible for the crimes alleged in Counts 6 (Rape, a crime against humanity punishable under Article 2.g of the Statute), Count 7 (Sexual Slavery and any other form of Sexual Violence, a crime against humanity punishable under Article 2.g of the Statute), Count 8 (Other Inhumane Act, a crime against humanity punishable under Article 2.i of the Statute), and, in addition to or in the alternative, Count 9 (Outrages upon Personal Dignity, a violation of Article 3 Common to the Geneva Conventions and of Additional Protocol II, punishable under Article 3.e of the Statute).

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

Elements of the Crime 106. We endorse the following defĳinition of rape as afffĳirmed by the ICTY Appeal Chamber in Kunarac:221 “the actus reus of the crime of rape in international law is constituted by: the sexual penetration, however slight:

221 Kunarac Appeals Chamber Judgement, supra note 510, para. 127. interlocutory decisions – trial chamber 719

(a) of the vagina or anus of the victim by the penis of the perpetrator or any other object used by the perpetrator; or (b) of the mouth of the victim by the penis of the perpetrator; where such sexual penetration occurs without the consent of the victim. Consent for this purpose must be consent given voluntarily, as a result of the victim’s free will, assessed in the context of the surrounding circumstances. The mens rea is the intention to efffect this sexual penetration, and the knowledge that it occurs without the consent of the victim.” 107. In afffĳirming this defĳinition the ICTY Appeals Chamber emphasized that “[f]orce or threat of force provides clear evidence of non-consent, but force is not an element per se of rape” and there are factors other than force which would render an act of sexual penetration non-consensual or non-voluntary on the part of the victim.222 108. The defĳinition of rape as a crime against humanity is therefore the above defĳinition where the crime of rape is committed as part of a widespread or systematic attack against any civilian population, plus the other constitutive elements of crimes against humanity as set out in paragraphs 40 to 42 above.

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

Elements of Sexual Slavery 109. The elements of the crime of sexual slavery within the meaning of Article 2.g of the Statute are: (1) The perpetrator exercised any or all of the powers attaching to the right of ownership over one or more persons, such as by purchasing, selling, lending or bartering such a person or persons, or by imposing on them a similar deprivation of liberty. (2) The perpetrator caused such person or persons to engage in one or more acts of a sexual nature. (3) The conduct was committed as part of a widespread or systematic attack directed against a civilian population. (4) The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack against a civilian population.223

222 Ibid., paras. 129–130. 223 Article 7(1)(g)-2 of the Elements of Crimes adopted by the Preparatory Commission for the International Criminal Court cited in Joint Legal Part, supra note 499, para. 69. 720 part ii

Elements of Any Other Form of Sexual Violence 110. The elements of crimes amounting to any other form of sexual violence within the meaning of Article 2.g of the Statute are: (1) The perpetrator committed an act of a sexual nature against one or more persons or caused such persons to engage in an act of a sexual nature by force, or by threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or persons or another person, or by taking advantage of a coercive environment or such person or person’s incapacity to give genuine consent. (2) Such conduct was of a gravity comparable to the acts referred to in Art 2.g of the Statute. (3) The perpetrator was aware of the factual circumstances that established the gravity of the conduct. (4) The conduct was committed as part of a widespread or systematic attack directed against any civilian population. (5) The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against any civilian population.224 111. The Statute does not defĳine “any other form of sexual violence.” However, the question was addressed by the Trial Chamber in Kvocka, which came to the conclusion that: “sexual violence is broader than rape and includes such crimes as sexual slavery or molestation”225 and “would also include such crimes as sexual mutilation, forced marriage, and forced abortion as well as the gender related crimes explicitly listed in the ICC Statute as war crimes and crimes against humanity, namely ‘rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization’ and other similar forms of violence.”226

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

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

224 Article 7(1)(g)-6 of the Elements of Crimes adopted by the Preparatory Commission for the International Criminal Court. 225 Prosecutor v. Kvocka, ICTY IT-98-30/1-T, Trial Chamber Judgement, at para. 180. 226 Ibid., at footnote 343. 227 See paras. 173–174. interlocutory decisions – trial chamber 721

3.4. Count 9: Outrages Upon Personal Dignity (Article 3.e. of the Statute) Elements of the Crime 113. We agree with what was said by the ICTY Trial Chamber in Kunarac228 that, “the offfence of outrages upon personal dignity requires (i) that the accused intentionally committed or participated in an act or omission which would be generally considered to cause serious humiliation, degradation or otherwise be a serious attack on human dignity, and (ii) that he knew that the act or omission could have that efffect.” 114. The Appeals Chamber in Kunarac229 went on to hold that an outrage upon personal dignity is constituted by “an act or omission which would be generally considered to cause serious humiliation, degradation or otherwise be a serious attack on human dignity.” 115. We therefore consider that the elements of the crime of outrages upon personal dignity within the meaning of Article 3.e. of the Statute of the Special Court for Sierra Leone are: 1. The constitutive elements of violations of Article 3 common to the Geneva Conventions and of Additional Protocol II. 2. The accused committed an outrage upon the personal dignity of the victim. 3. The humiliation and degradation was so serious as to be generally considered as an outrage upon personal dignity. 4. The accused intentionally committed or participated in an act or omission which would be generally considered to cause serious humiliation, degradation or otherwise be a serious attack on human dignity. 5. The accused knew that the act or omission could have such an efffect. 116. This defĳinition is assisted by Article 3.e. of the Statute, which prescribes some of the acts constituting outrages upon personal dignity, viz. humiliating and degrading treatment, rape, enforced prostitution, and any form of indecent assault. 3.5. Submissions for Counts 6, 7, 8 and 9 Joint Legal 117. The Joint Defence submitted that the Prosecution failed to adduce any evidence to sustain a conviction for rape, sexual slavery or any other form of

228 Prosecutor v. Kunarac et al., ICTY IT-96-23-T & IT-96-23/1-T, Judgement, [“Kunarac Judgement”], para. 514. 229 Kunarac Appeals Chamber Judgement, supra note 510, para. 165. 722 part ii sexual violence, nor had it established the elements of the crime of “other inhumane act.” 230 118. The separate submissions made by Counsel for each Accused can be briefly summarized as follows: Brima 119. The Prosecution failed to adduce evidence that Brima raped, or ordered the rape of, any person, or that he knew or should have known that rape was being committed by members of the AFRC.231 In Kono District, the evidence of certain witnesses was uncorroborated and there was no evidence that sexual abuse was widespread,232 whereas in Koinadugu District there was no evidence against Brima of any acts or omissions in relation to sexual violence,233 nor was there evidence that he could have acted to prevent sexual violence in that District. As regards the Bombali District, the evidence of Witness TF1-334 gave very little detail and did not mention the presence of any commander in the District.234 Kamara 120. Kamara was mentioned in the evidence as being present in Kono, Koinadugu and Bombali Districts, but the Prosecution failed to show that he was involved in the commission of any form of sexual violence or that persons under his command, if any, took part in the alleged incidents.235 On the other hand, there was no evidence that Kamara was in Kailahun District at the relevant time. Furthermore, Kailahun was under the control of the RUF and there was no evidence that Kamara, or anyone under his control was involved in the alleged crimes in any part of that district.236 121. Although Kamara was allegedly present in various parts of Freetown and the Western Area, the evidence failed to show that he was involved in the commission of the crimes alleged. There was little or no evidence that Kamara, who was lawfully married, had extra-marital afffairs or that he engaged in any sexual violence. In this regard, the evidence of Witness TF1-334 was weak, uncorroborated and inadequate. Equally, there was no evidence that persons under Kamara’s command, if any, took part in the incidents alleged.237

230 Supra paras. 67, 71 and 73. 231 Brima Motion, supra note 490, para. 61. 232 Ibid., paras. 62–63. 233 Brima Motion, supra note 490, para. 65. 234 Ibid., para. 68. 235 Kamara Motion, supra note 582, para. 30.3. 236 Ibid., para. 30.12. 237 Ibid., 30.15. interlocutory decisions – trial chamber 723

122. Similarly, although Kamara was allegedly present the Port Loko District, the evidence failed to show that he was involved in the commission of offfences of sexual violence. In particular, the evidence of witness TF1-334 was “weak, isolated, uncorroborated and tainted with ill-motive.” 238 Further, there was no evidence that persons under his command, if any, took part in the incidents alleged, nor was there evidence to show that he participated in a joint criminal enterprise. Kanu 123. The Prosecution did not present any evidence to support the crime of rape or of sexual slavery of hundreds of women and girls, or any evidence of inhumane acts or outrages upon human dignity at AFRC/RUF camps such as Superman camp, Kissi-town (or Kissy Town), Tomendeh, Fokoiya, Wondedu, Tombodu or Kissi-town (or Kissi Town) in the Kono District; or in Hemakono in the Koinadugu Distric), or in Mandaha in the Bombali District.239 124. Nor was there any evidence of rape or sexual slavery or outrages against personal dignity in Kailahun District by the AFRC/RUF at any time relevant to the Indictment.240 Alternatively, there was no evidence showing that Kanu bore individual criminal responsibility for the crime of sexual slavery, nor was there any mention of his presence in Kailahun District.241 Similarly, there was no evidence that Kanu bore any form of individual criminal responsibility for the crime of rape in Freetown and the Western Area, nor that “hundreds of women and girls were subjected to sexual slavery”242 throughout the area. There was also no evidence that Kanu bore any form of criminal responsibility for the crime of sexual slavery or any other form of sexual violence in Port Loko District.243 125. In conclusion, no evidence was adduced to show that Kanu bore superior responsibility or had been involved in a joint criminal enterprise, or bore any other form of individual criminal responsibility pursuant to Articles 6.1. or 6.3. of the Statute for the crimes of rape, sexual slavery, other forms of sexual violence or outrages upon human dignity in any of the districts cited in the Indictment.244 Prosecution Response 126. The submissions of the Prosecution in response to the Defence submissions are briefly summarized as follows:

238 Ibid., para. 30.18. 239 Kanu Motion, supra note 490, paras. 31, 34, 36 and 59. 240 Ibid., paras. 38 and 49. 241 Ibid., para. 59. 242 Ibid., para. 49. 243 Ibid., para. 50. 244 Kanu Motion, supra note 490, paras. 33, 35, 37 40-46, 52–54, 61. 724 part ii

127. The evidence showed that in addition to the regularly described forms of sexual and gender specifĳic violence frequently sufffered by women in conflict situations, Sierra Leonean women were forced into marriages and thus were involuntarily converted into becoming what has commonly been referred to as “bush wives”245 There was evidence in this regard of the widespread and systematic nature of the attack and the awareness of the Accused of the circumstances establishing the gravity of the conduct.246 128. The Joint Defence Motion made no submission as to the evidence led with respect to the elements of the crime of outrages against personal dignity.”247 129. In regard to the Brima submissions, the Prosecution accepted that no evidence of sexual violence had been led with respect to the villages of Tombendeh, Fokoiya, Superman Camp/Kissi Town Camp, Kissi Town, Tombodu (Kono District); Heremakono (Koinadugu District) or Mandaha (Bombali District) but submitted that there is sufffĳicient evidence in relation to all other locations pleaded.248 130. In relation to the Kono District, evidence of sexual violence given by witnesses who were unable to name the group responsible, could still incriminate Brima in circumstances where there was other evidence showing the presence of Junta troops in that area.249 Further, the evidence of sexual violence in Kono was part of a pattern that was repeated throughout Sierra Leone wherever Junta troops were present. The evidence was of rapes by soldiers during attacks on villages, rape being the modus operandi of such attacks.250 Consequently, Brima was guilty of the counts charged in respect of Kono. 131. In the Koinadugu and Bombali Districts, there was evidence of rape, sexual slavery, women being stripped naked on the orders of Brima, and of many of these women being handed to the Accused Kanu following the attack.251 132. The Brima Motion made no submission in respect to the crime bases of Kailahun District, Freetown and Western Area, and Port Loko District, and therefore it was assumed that Brima accepted the sufffĳiciency of the evidence with respect to them.252 133. As regards the Kamara submissions, there was clear evidence that during the time that Kamara acted as commander in the Kono District, the crimes

245 Response, supra note 491, para. 96. 246 Ibid., para. 98. 247 Ibid., para. 99. 248 Ibid., para. 146. 249 Ibid., para. 150. 250 Ibid., para. 151. 251 Ibid., para. 160. 252 Ibid., para. 161. interlocutory decisions – trial chamber 725 outlined in Counts 6 to 9 were committed by AFRC/RUF troops, “entailing the responsibility of the Second Accused.” 253 134. Furthermore, there was evidence that Kamara was present in the Koinadugu District during the period stated in the indictment, particularly in Kabala Town. The evidence of Witness TF1-153 was that Kamara failed to respond to complaints that men under his command raped a civilian. Witness TF1-209 testifĳied that she was raped by two members of the Junta forces, and that many other women and girls, some as young as 9 years were raped, and that armed soldiers committed acts of sexual violence against them. Witness TF1-133 gave evidence of acts of sexual slavery and forced marriage in the district. The evidence therefore showed that rape and sexual violence were carried out by AFRC soldiers in Koinadugu District, and that Kamara was part of a joint criminal enterprise with those soldiers and others.”254 135. The evidence also established the widespread and systematic nature of sexual violence in the Bombali District. For instance, there was the evidence of witness TF1-334 that in Karina, soldiers under the command of Kamara forcibly raped and captured female civilians.255 136. There was also the evidence of Witness TF1-144 that in Kailahun District AFRC soldiers had raped women and tried to force them into marriage, and that no Junta commander ever interfered. There was also expert evidence that forced marriage was practised in Kailahun.256 137. In Freetown and the Western Area there was evidence that rapes were committed at State House, that women and girls were abducted for sexual purposes during the retreat from Freetown by Kamara and his troops, and that women were forced into ‘marriages’ with rebel soldiers.257 138. Witness TF1-334 testifĳied that in Port Loko, Kamara raped a woman after ordering that she be beaten and locked in a rice box.258 139. With regard to the Kanu submissions, while it was accepted that no evidence of sexual violence had been led in respect of the villages of Tomendeh, Fokoiya, Superman Camp/Kissi Town Camp, Kissi Town in Kono District, there was sufffĳicient evidence in relation to all other locations.

253 Ibid., para. 225. 254 Ibid., paras. 227, 229. 255 Ibid., paras. 231 and 232. 256 Ibid., para. 234. 257 Ibid., para. 238. 258 Ibid., para. 240. 726 part ii

140. As to the Defence submission that no evidence that hundreds of women and girls were raped in the Kono District, Witness TF1-217 gave evidence “indicating mass rape in Koidu Town” and Witness TF1-133 testifĳied to the capture and rape of female civilians in Kumala. This evidence “indicates that this was a common practice amongst soldiers and as a consequence hundreds of women were in fact raped at numerous locations in Kono District at the material time.”259 141. While it was conceded that no evidence was led of rape in Heremakono in Koinadugu District, there was sufffĳicient evidence of rape in all other locations in that District. Further, the accused Kanu was Chief of Stafff in Mansofĳinia and had responsibility for the fate of the women there.260 Kanu was also a member of the Supreme Council in the AFRC/RUF Junta, which made him a leadership fĳigure within the body that governed the country at that time.261 142. Evidence had been presented that over 200 incidences of rape occurred in the Bombali District between about 1 May and 31(sic) November 1998. There was evidence to show that in the town of Port Loko, Kanu disregarded a law that rebels should not rape civilians. Further, there was evidence that Kanu had total control of all women in Rosos.262 143. There was also evidence of reports of rape in the Kailahun District and evidence that Kanu bore superior responsibility and participated in a joint criminal enterprise.263 144. With regard to Freetown and the Western Area, there was evidence of rapes committed at State House, including by Kanu himself. Captured women and girls were brought to State House and were forced to have sex with the soldiers. Kanu was present and knew or had reason to know that women and children were being raped. In fact, there was evidence that the most beautiful women were reserved for him. Also, there was evidence that Kanu led soldiers from Wellington to Allen Town, and that soldiers were seen raping women and children.264 145. In relation to the Kailahun District, and to Freetown and the Western Area, there was evidence of sexual slavery and other forms of sexual violence upon which a reasonable trier of fact could convict Kanu on the basis of his participation in a joint criminal enterprise.265 146. Furthermore, with respect to the Districts of Kono, Koinadugu, Bombali and Port Loko, the evidence was sufffĳicient for a reasonable trier of fact to convict

259 Ibid., para. 297. 260 Ibid., para. 302. 261 Ibid., para. 303. 262 Ibid., para. 307. 263 Ibid., paras. 311, 312. 264 Ibid., paras. 314, 315. 265 Ibid., para. 317–320. interlocutory decisions – trial chamber 727

Kanu for the crime of sexual slavery and sexual violence pursuant to Article 6.1. and Article 6.3. of the Statute. In particular, in Port Loko in 1999, Kanu was present in Masiaka, where he held a position of high command, when rape and other forms of sexual violence were committed by rebel soldiers against civilians.266 147. In respect to Counts 8 and 9, a reasonable trier of fact could convict Kanu on the basis of his participation in a joint criminal enterprise in relation to all Districts mentioned in the Indictment.267 148. The Prosecution accepted that no evidence of sexual violence had been led with respect to the following villages: Tomendeh, Fokoiya or Superman Camp/ Kissi Town Camp (Kono District); Heremakono (Koinadugu District).268 149. The Prosecution disputed the submission in the Kanu Motion that, in relation to Counts 8 and 9, there was no evidence with respect to the Kono District, Koinadugu District, Bomabali District and Kailahun District, of the criminal responsibility of Kanu under Articles 6.1. and 6.3. The Prosecution stated that in the Koinadugu District, Witness TF1-209 was told by Kanu that he had been slitting the bellies of pregnant women and that the witness, who had been raped, was lucky that her belly had not been slit. Further, there was the evidence that in Bombali, Kanu disregarded a law that rebels should not rape civilians, and in Freetown Kanu amputated limbs and ordered others to do the same. Regarding the remaining districts, the Prosecution relied on the evidence of joint criminal enterprise.269 Brima Reply 150. Counsel for Brima replied that the Prosecution has to prove the accused’s actions were directly or indirectly part of a widespread and systematic sexual attack on the civilian population, and concluded that the Prosecution “has not led any evidence to prove that the First Accused in (sic) criminally liable for sexual violence against the civilian population.”270 151. In relation to the Kono District, Counsel for Brima argued that it was important for a witness to identify whether the perpetrators were from the AFRC or RUF, because the two groups had diffferent commands, and Brima could not be responsible for “acts committed by the RUF .”271 It was also submitted that only one witness testifĳied that Brima was indirectly involved in sexual violence, but that evidence was not corroborated.

266 Ibid., para. 323. 267 Ibid., para. 327. 268 Ibid., paras. 293 and 300. 269 Ibid., para. 332. 270 Brima Reply, supra note 538, para. 11. 271 Ibid., paras. 11 and 12. 728 part ii

152. With respect to the Koinadugu District, Counsel for Brima submitted that the evidence showed that the perpetrators were controlled by persons superior in command to Brima.272 Kamara Reply 153. Counsel for Kamara submitted that it was clear from the evidence that Kamara was not in command in the Kono District and cannot be criminally responsible for the crimes committed there.273 154. With respect to the crimes alleged to have been committed in Koinadugu District, Counsel for Kamara submitted that the evidence of Witness TF1-153 was contradictory and based on hearsay, whereas other witnesses did not mention Kamara’s presence there at all. It was further submitted that there was no evidence that Kamara took part in crimes of sexual violence or that he was part of a joint criminal enterprise.274 Kanu Reply 155. Counsel for Kanu, referring to the Kono District, submitted that the Prosecution had neither accepted nor refuted the Defence statement that there was no evidence of rape at Wondedu and therefore the Prosecution must be taken to acquiesce to it.275 Counsel for Kanu also re-stated that the Prosecution had not provided evidence that hundreds of women and girls were raped in the Kono District or that this was a common practice amongst the soldiers.276 156. Referring to the Koinadugu District, Counsel for Kanu submitted that the Prosecution has not provided evidence of rapes in Monsafĳinia.277 157. Under the heading Counts 8-11, Counsel for Kanu argued that Witness TF1- 209 was told by Kanu only that “they” were slitting the bellies of pregnant women, not that he himself was slitting bellies; therefore there was no evidence capable of supporting a conviction.278

3.6. Findings for Counts 6, 7, 8 and 9 Findings for Count 6 (Rape) 158. As stated above, it is not the function of the Trial Chamber under Rule 98 to make determinations of fact having weighed the credibility and reliability of the

272 Ibid., para. 13. 273 Kamara Reply, supra note 539, para. 5. 274 Ibid., para. 6. 275 Kanu Reply, supra note 490, para. 27. 276 Ibid., para. 28. 277 Ibid., para. 29. 278 Ibid., para. 30. interlocutory decisions – trial chamber 729 evidence. Hence submissions that the evidence lacks corroboration, or is contradictory and uncorroborated, are not appropriate under Rule 98. 159. We note that the Prosecution has conceded that there was no evidence of rape in respect of the following locations pleaded in the indictment: Tomendeh, Fokoiya, Superman Camp/Kissi Town Camp, Kissi Town or Tombodu (Kono District); Heremakono (Koinadugu District); or Mandaha (Bombali District). 160. However, we fĳind that there is other evidence279 with respect to the to the Districts of Kono,280 Koinadugu,281 Bombali,282 Kailahun,283 Freetown and Western area284 and Port Loko285 and in exhibits286 upon which, if believed, a reasonable tribunal of fact could be satisfĳied beyond reasonable doubt of the guilt of each of the Accused Brima, Kamara and Kanu for the crime of rape as a crime against humanity pursuant to Article 2.g of the Statute. Accordingly, we are satis- fĳied that the evidence is capable of supporting a conviction against each of the Accused Brima, Kamara and Kanu on Count 6 of the Indictment.

Findings for Count 7 (Sexual Slavery and Any Other Form of Sexual Violence) 161. We note that the Prosecution has conceded that it has not led evidence in respect of the following locations pleaded in the indictment: Tomendeh, Fokoiya, Superman Camp/Kissi Town Camp, Kissi Town or Tombodu (Kono District); Heremakono (Koinadugu District); or Mandaha (Bombali District).

279 The evidence referred to in this paragraph is by no means exhaustive of all the evidence available on the record. 280 Witness TF1-334, Transcript 20 May 2005, p. 7; Witness TF1-076, Transcript 27 June 2005, pp. 105–106, Witness TF1-198, Transcript 28 June 2005, p. 12; Witness TF1-206, Transcript 28 June 2005, p. 96; Witness TF1-019, Transcript 30 June 2005, pp. 81–82, 90–91; Witness TF1-033, Transcripts 11 July 2005, p. 14; Witness TF1-114, Transcripts 14 July 2005, p. 131; Witness TF1-217, Transcripts 17 October 2005, p. 5, pp. 22–23, 30–31. 281 Witness TF1-209, Transcript 7 July 2005, pp. 31–23; Witness TF1-133, Transcript 7 July 2005, pp. 91–92, 98; Witness TF1-094, Transcript 13 July 2005, p. 29; Witness TF1-153, Transcript 22 September 2005, p. 33; Witness TF1-199, Transcript 6 October 2005, p. 89. 282 Witness TF1-334, Transcript 23 May 2005, p. 71; Witness TF1-033, Transcript 11 July 2005, p. 19; Witness TF1-269, Transcript 14 July 2005, p. 44; Witness TF1-267, Transcript 27 July 2005, p. 6. 283 Witness TF1-114, Transcript 14 July 2005, p. 131; Witness TF1-045, Transcript 19 July 2005, pp. 85–86. 284 Witness TF1-024, Transcript 7 March 2005, pp. 49–50; Witness TF1-023, Transcript 9 March 2005, p. 51; Witness TF1-085, Transcript 7 April 2005, pp. 18–19; Witness TF1-083, Transcript 8 April 2005, p. 52; Witness TF1-227, Transcript 11 April 2005, p. 13; Witness TF1-334, Transcript 14 June 2005, pp. 25–26; Witness TF1-169, Transcript 6 July 2005, p. 60; Witness TF1-153, Transcript 23 September 2005, pp. 9–10. 285 Witness TF1-085, Transcript 7 April 2005, pp. 40–41; Witness TF1-085, Transcript 14 April 2005, pp. 91, 98; Witness TF1-334, Transcript 15 June 2005, pp. 53–55. 286 Prosecution Exhibit 25; Prosecution Exhibit 26; Prosecution Exhibit 52; Prosecution Exhibit 53, Prosecution Exhibit 58; Prosecution Exhibit 67, Prosecution Exhibit 66; Prosecution Exhibit 51; Prosecution Exhibit 46; Prosecution Exhibit 66. 730 part ii

162. However, we fĳind that there is other evidence287 with respect to the Districts of Kono,288 Koinadugu,289 Bombali,290 Kailahun,291 Freetown and Western area292 and Port Loko293 and in exhibits294 upon which, if believed, a reasonable tribunal of fact could be satisfĳied beyond reasonable doubt of the guilt of each of the Accused Brima, Kamara and Kanu for the crime of sexual slavery as a crime against humanity pursuant to Art 2.g of the Statute. Accordingly, we are satisfĳied that the evidence is capable of supporting a conviction against each of the Accused Brima, Kamara and Kanu on Count 7 of the Indictment. 163. Having found that there is evidence capable of supporting a conviction on Count 7, we are not required under Rule 98 make any further examination of the evidence relating to this Count. However, in order to avoid any confusion, we consider it appropriate to state our view on whether or not there are facts relating to the crime referred to as “any other form of sexual violence” which are also capable of supporting a conviction on Count 7. 164. Accordingly, having examined the available evidence,295 we further fĳind that there is other evidence with respect to the to the Districts of Kono,296 Koinadugu,297 Bombali,298 Kailahun,299 Freetown and Western Area300 and Port Loko301 and in

287 The evidence referred to in this paragraph is by no means exhaustive of all the evidence available on the record. 288 Witness TF1-334, Transcript 20 May 2005, pp. 5, 7; Witness TF1-033, Transcript 11 July 2005, p. 14; Witness TF1-217, Transcript 17 October 2005, pp. 5, 22–23, 25, 30–31; Witness TF1-114, Transcript 14 July 2005, p. 131. 289 Witness TF1-209, Transcript 7 July 2005, p. 37–39; Witness TF1-133, Transcript 7 July 2005, pp. 92, 98, 105–108; Witness TF1-094, Transcript 13 July 2005, pp. 29, 30. 290 Witness TF1-334, Transcript 23 May 2005, pp. 76, 77. 291 Witness TF1-045, Transcript 19 July 2005, pp. 85, 86. 292 Witness TF1-023, Transcript 9 March 2005, p. 51; Witness TF1-085, Transcript 7 April 2005, pp. 27–28; Witness TF1-334, Transcript 15 June 2005, pp. 2–4. 293 Witness TF1-085, Transcript 7 April 2005, p. 41; Witness TF1-083, Transcript 8 April 2005, p. 63; Witness TF1-282, Transcript 13 April 2005, pp. 17–18; Witness TF1-256, Transcript 14 April 2005, p. 98. 294 Prosecution Exhibit 25; Prosecution Exhibit 26; Prosecution Exhibit 52; Prosecution Exhibit 53; Prosecution Exhibit 58; Prosecution Exhibit 67; Prosecution Exhibit 66; Prosecution Exhibit 51; Prosecution Exhibit 32. 295 The evidence referred to in this paragraph is by no means exhaustive of all the evidence available on the record. 296 Witness TF1-334, Transcript 20 May 2005, pp. 5, 7; Witness TF1-033, Transcript 11 July 2005, p. 14; Witness TF1-217, Transcript 17 October 2005, pp. 5, 11, 22–23, 25, 30–31; Witness TF1-114, Transcript 14 July 2005, p. 131. 297 Witness TF1-209, Transcript 7 July 2005, pp. 37–39; Witness TF1-133, Transcript 7 July 2005, pp. 89–92, 97–101, 105–108; TF1-094, Transcript 13 July 2005, pp. 29–30. 298 Witness TF1-334, Transcript 23 May 2005, pp. 72, 76, 77. 299 Witness TF1-114, Transcript 14 July 2005, p. 131; Witness TF1-045, Transcript 19 July 2005, pp. 85–86. 300 Witness TF1-023, Transcript 9 March 2005, pp. 44–47, 51; Witness TF1-085, Transcript 7 April 2005, pp. 21, 27–28; Witness TF1-334, Transcript 14 June 2005, pp. 120–121, Transcript 15 June 2005, pp. 2–7, 14–16; Witness TF1-081, Transcript 4 July 2005, p. 11. 301 Witness TF1-085, Transcript 7 April 2005, pp. 33, 35–38, 41; Witness TF1-083, Transcript 8 April 2005, p. 63; Witness TF1-282, Transcript 13 April 2005, pp. 17–18; Witness TF1-256, Transcript 14 April 2005, p. 98. interlocutory decisions – trial chamber 731 exhibits302 upon which, if believed, a reasonable tribunal of fact could be satisfĳied beyond reasonable doubt of the guilt of each of the Accused Brima, Kamara and Kanu for the crime referred to as “any other form of sexual violence” as a crime against humanity pursuant to Art. 2.g of the Statute. Accordingly, we are satisfĳied that the evidence is capable of supporting a conviction against each of the Accused Brima, Kamara and Kanu on Count 7 of the Indictment.303

Findings for Count 8 (Any Other Inhumane Acts) 165. “Other inhumane acts” is a residual category of crimes against humanity that encompasses acts not specifĳically enumerated in Articles 2.a. to h. of the Statute. As held by Trial Chamber 1, “in the light of the separate and distinct residual category of sexual offfences under Article 2(g), it is impermissible to allege acts of sexual violence (other than rape, sexual slavery, enforced prostitution, forced pregnancy) under Article 2(i) since ‘other inhumane acts,’ even if residual, must logically be restrictively interpreted as covering only acts of a non-sexual nature amounting to an afffront to human dignity.”304 We consider that there is evidence which falls within that category relating to the abductions of women and girls and forcing them to submit to ‘marital’ relationships and to perform various conjugal duties. 166. The acts described in such evidence305 took place in the Districts of Kono,306 Koinadugu,307 Bombali,308 Kailahun,309 Freetown and Western Area310 and Port Loko311 and is also referred to in exhibits.312 Applying the Rule 98 standard,

302 Prosecution Exhibit 25; Prosecution Exhibit 26; Prosecution Exhibit 52; Prosecution Exhibit 53; Prosecution Exhibit 58; Prosecution Exhibit 67; Prosecution Exhibit 66; Prosecution Exhibit 51; Prosecution Exhibit 46, Prosecution Exhibit 32. 303 Prosecution Exhibit 25; Prosecution Exhibit 26; Prosecution Exhibit 52; Prosecution Exhibit 53; Prosecution Exhibit 58; Prosecution Exhibit 67; Prosecution Exhibit 66; Prosecution Exhibit 51; Prosecution Exhibit 28, Prosecution Exhibit 32. 304 Prosecutor v. Norman et al., SCSL-04-14PT, Reasoned Majority Decision on Prosecution Motion for a Ruling on the Admissibility of Evidence, 24 May 2005, para. 19(iii). 305 The evidence referred to in this paragraph is by no means exhaustive of all the evidence available on the record. 306 Witness TFI-334, Transcript 20 May 2005, p. 5; Witness Zainab Bangura, Transcript 3 October 2005; Witness Zainab Bangura, Transcript 4 October 2005. 307 Witness TF1-209, Transcript 7 July 2005, p. 36; TF1-133, 7 July 2005, p. 82, 83; Witness TF1-094, Transcript 13 July 2005, p. 8; Witness Zainab Bangura, Transcript 3 October 2005; Witness Zainab Bangura, Transcript 4 October 2005. 308 Witness TF1-334, Transcript 23 May 2005, pp. 75, 76; Witness Zainab Bangura, Transcript 3 October 2005; Witness Zainab Bangura, Transcript 4 October 2005. 309 Witness TF1-045, Transcript 19 July 2005, pp. 85–86; Witness Zainab Bangura, Transcript 3 October 2005; Witness Zainab Bangura, Transcript 4 October 2005. 310 Witness TF1-023, Transcript 9 March 2005, pp. 30–33; Witness TF1 334, Transcript 15 June 2005, pp. 5, 14; Witness TF1 334, Transcript 14 June 2005, p. 25, p. 114; Witness TF1-081, Transcript 4 July 2005, p. 10. 311 Witness TF1-083, Transcript 8 April 2005, p. 68; Witness TF1-256, Transcript 14 April 2005, p. 98. 312 Prosecution Exhibit 52; Prosecution Exhibit 53; Prosecution Exhibit 58; Prosecution Exhibit 46; Prosecution Exhibit 28. 732 part ii we fĳind that upon such evidence a reasonable tribunal of fact could be satisfĳied beyond reasonable doubt of the guilt of each of the Accused Brima, Kamara and Kanu for the crime of other inhumane acts as a crime against humanity pursuant to Art 2.i of the Statute. Accordingly, we are satisfĳied that the evidence is capable of supporting a conviction against each of the Accused Brima, Kamara and Kanu on Count 8 of the Indictment.

Findings for Count 9 (Outrages Upon Personal Dignity) 167. The crimes charged under Counts 6 to 8 as crimes against humanity are charged cumulatively or in the alternative under Count 9 as war crimes, that is, as violations of Article 3 Common to the Geneva Conventions and of Additional Protocol II, punishable under Article 3.e. of the Statute. As such, the constitutive elements of war crimes require that there be a nexus to an armed conflict and that the victims of the crimes be protected persons in the sense that that they were not directly taking part in the hostilities at the time of the alleged crimes. 168. We are satisfĳied that there is evidence, if believed, that the crimes described in Counts 6 to 8 were committed in the course of an armed conflict against victims who were not directly taking part in the hostilities. We have already found that there is evidence, if believed, capable of supporting a conviction on Counts 6 to 8. Based on the evidence found under Counts 6 to 8, we further fĳind that there is evidence upon which, if believed, a reasonable tribunal of fact could be satisfĳied beyond reasonable doubt of the guilt of each of the Accused Brima, Kamara and Kanu for the crime of outrages upon personal dignity, as a violation of Article 3 Common to the Geneva Conventions and of Additional Protocol II, pursuant to Article 3.e. of the Statute. Accordingly, we are satisfĳied that the evidence is capable of supporting a conviction against each of the Accused Brima, Kamara and Kanu on Count 9 of the Indictment. 169. We are not required at this stage to decide whether a crime was committed in the context of a widespread or systematic attack against any civilian population or in relation to an armed conflict against protected persons.

4. Counts 10 And 11: Crimes Relating To Physical Violence Introduction 170. The Indictment alleges that members of the AFRC/RUF subordinate to and/or acting in concert with the accused Alex Tamba Brima, Brima Bazzy Kamara and Santigi Borbor Kanu committed widespread physical violence, including mutilations, against the civilian population in various locations in the territory of Sierra Leone including Kono District313 between 14 February 1998 and 30 June 1998;

313 Indictment, supra note 479, para. 59. interlocutory decisions – trial chamber 733

Kenema District314 between 25 May 1997 and about 19 February 1998; Koinadugu District315 between 14 February 1998 and 30 September 1998; Bombali District316 between 1 May 1998 and 30 November 1998; Freetown and the Western Area317 between 6 January 1999 and 28 February 1999; and Port Loko District318 between February and April 1999. 171. In particular, the Indictment alleges that by their acts or omissions in relation to these events, each of the accused persons Brima Kamara and Kanu is individually criminally responsible pursuant to Article 6.1 and/or 6.3 of the Statute, for the crime of Violence to life, health and physical or mental well-being of persons, in particular mutilation, a violation of Article 3 Common to the Geneva Conventions and of Additional Protocol II, punishable under Article 3.a. of the Statute (Count 10) and in addition to or in the alternative, the crime against humanity of ‘other inhumane acts’ punishable under Article 2 i. of the Statute (Count 11).

4.1. Count 10: Mutilation (Article 3.a. of the Statute) Elements of the Crime 172. Mutilation as a violation of Article 3 Common to the Geneva Convention and of Additional Protocol II occurs where the perpetrator intentionally cause death or seriously endangers the physical or mental health of a person by permanently disabling or disfĳiguring or removing an organ or appendage of that person, during an international or internal armed conflict. The Trial Chamber adopts the following elements of the crime of Mutilation as a violation of Article 3 Common to the Geneva Convention and of Additional Protocol II, as charged under Count 10, namely that, (a) The perpetrator subjected the victim to mutilation, in particular by permanently disfĳiguring the victim, or by permanently disabling or removing an organ or appendage of the victim; (b) The perpetrator’s conduct caused death or seriously endangered the physical or mental health of the victim; (c) The perpetrator’s conduct was neither justifĳied by the medical, dental or hospital treatment of the victim, nor carried out in the victim’s interest; (d) The victim was a person protected under one or more of the Geneva Conventions of 1949 or was not taking an active part in the hostilities at the time of the alleged violation;

314 Ibid., para. 60. 315 Ibid., para. 61. 316 Ibid., para. 62. 317 Ibid., para. 63. 318 Ibid., para. 64. 734 part ii

(e) The violation took place in the context of and was associated with an armed conflict; and (f) The perpetrator was aware of the factual circumstances that established the protected status of the victim.

4.2. Count 11: Other Inhumane Acts (Article 2.i. of the Statute) Elements of the Crime 173. Various International Criminal Tribunals have described the phrase “Other inhumane acts” as a residual category of crimes against humanity that encompasses acts not specifĳically enumerated but which are similar to in gravity or severity (but not necessarily of the same genus as) those specifĳically listed in their respective Statutes.319 In other words, such acts must have caused great sufffering or serious injury to the physical or mental health or human dignity of the victim320 and must have been committed as part of a widespread or systematic attack upon a civilian population.321 Acts such as mutilation, severe beatings, forced disappearances, forced prostitution have been held to constitute “other inhumane acts.”322 In the case of the Special Court for Sierra Leone, the phrase “other inhumane acts” refers to those violations not expressly listed in Article 2 a. to h. of the Statute, but which are similar in gravity to those listed in that Article and which were committed as part of a widespread or systematic attack upon a civilian population.323 174. The Trial Chamber adopts the following elements of the crime against humanity of “other inhumane acts” as charged under Count 11, namely that– (a) The perpetrator inflicted great sufffering, or serious injury to body or to mental or physical health, by means of an inhumane act; (b) The act was of a gravity similar to the acts referred to in Article 2 a. to h. of the Statute; (c) The perpetrator was aware of the factual circumstances that established the character or gravity of the act; (d) The act was committed as part of a widespread or systematic attack directed against a civilian population; and

319 Blaskic Judgement, supra note 526, paras. 239–244; Kayishema & Ruzindana Judgement, supra note 519, para. 149. 320 Tadic Trial Chamber Judgement, supra note 516, paras. 728–729. 321 Prosecutor v. Kordic and Cerkez, ICTY IT-95-14/2-T, Judgement, 26 February 2001, [“Kordic Judgement”], paras. 269–272; Tadic Trial Chamber Judgement, supra note 516, paras. 729-730; Prosecutor v. Zoran Kupreskic et al., ICTY IT-95-16-T, Judgement, 14 January 2000, [“Kupreskic Judgement”] para. 566; Kayishema & Ruzindana Judgement, supra note 519, paras. 149–154; Norman Judgement of Acquittal, supra note 493, para. 93. 322 Kupreskic Judgement, ibid., para. 566. 323 Norman Judgement of Acquittal, supra note 493, para. 93. interlocutory decisions – trial chamber 735

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

4.3. Submissions for Counts 10 and 11 Joint Legal Part 176. The Defence jointly submitted that the Prosecution has failed to prove to the required standard, the essential elements of the crimes under Count 10 or Count 11. Brima Motion 177. In addition to the joint Defence submissions, Counsel for the accused Brima submitted that his client should be acquitted in respect of Counts 10 and 11 of the Indictment as the Prosecution has failed to adduce any evidence to show that Brima or persons under his command, authority or direction, took part in the alleged physical violence in Kono District, Kenema Town and District, Kailahun District and Eastern Province. Instead, the evidence of Prosecution Witnesses TF1- 072, TF1-074, TF1-198 and TF1-206 points to members of the RUF as being responsible for the alleged physical violence.325 Kamara Motion 178. In addition to the joint Defence submissions, Counsel for the accused Kamara submitted that his client should be acquitted in respect of Counts 10 and 11 of the Indictment as the Prosecution has failed to adduce any evidence to show that Kamara or persons under his command, authority or direction, took part in the alleged physical violence. Instead, the evidence of Prosecution Witnesses

324 Article 6(1) and (3) of the SCSL Statute. 325 Brima Motion, supra note 490, paras. 69–75. 736 part ii

TF1-062, TF1-122, TF1-045, TF1-072, TF1-216 and TF1-206 pointed to members of the RUF as being responsible for the alleged physical violence.326 Kanu Motion 179. In addition to the joint Defence submissions, Counsel for the accused Kanu submitted that his client should be acquitted in respect of Counts 10 and 11 of the Indictment as the Prosecution adduced no evidence of Kanu’s presence in the Districts of Bo, Kenema and Kailahun during the periods alleged in the Indictment, nor of his alleged criminal liability under Articles 6(1) or 6(3) of the Statute in those Districts.327 Counsel further submitted in relation to– (a) Kono District, that the Prosecution adduced no evidence of the alleged crimes having been committed in the villages of Kaima/Kayima or Wondedu, nor of Kanu’s presence in those villages, nor of his participation in the alleged crimes elsewhere in that District;328 (b) Kenema District, that the Prosecution adduced no evidence of the alleged beatings or mistreatment of civilians in custody as alleged;329 (c) Koinadugu District, that the Prosecution adduced no evidence of Kanu’s presence in the village of Konkoba/Kontoba during the period alleged in the Indictment, nor of his participation in the alleged crimes elsewhere in that District;330 (d) Bombali District, that the Prosecution adduced no evidence of Kanu’s presence in the villages of Lohondi, Malama and Mamaka during the period alleged in the Indictment, nor of his participation in the alleged crimes elsewhere in that District;331 (e) Port Loko District, that the Prosecution failed to specify in the Indictment the names of villages where the alleged crimes took place and adduced no evidence of Kanu’s participation in the alleged crimes.332 Prosecution Response 180. The Prosecution conceded that it led no evidence of the crimes charged under Counts 10 and 11 having been committed in the villages of Konkoba in Koinadugu District, Lohondi, Malam and Mamaka in Bombali District. The Prosecution maintained however, that the evidence of the alleged crimes adduced in respect of all the other Districts specifĳied in the Indictment, proves all the elements of the crimes to the required standard and is capable of supporting

326 Kamara Motion, supra note 582, paras. 36–37. 327 Kanu Motion, supra note 490, para. 73. 328 Ibid., paras. 62–63 and 74. 329 Ibid., paras. 64–66. 330 Ibid., paras. 67–68. 331 Ibid., paras. 69–70. 332 Ibid., paras.71–72. interlocutory decisions – trial chamber 737 a conviction under Counts 10 and 11 against each of the accused Brima, Kamara and Kanu.333 181. The Prosecution submitted in relation to the charge of “other inhumane acts” (Count 11) that the Prosecution evidence sufffĳiciently demonstrates the mutilations and other forms of physical violence were carried out by the Junta troops as part of the widespread attack upon the civilian population throughout the territory of Sierra Leone, and that these crimes were committed pursuant to a regular pattern and preconceived plan to terrorise the civilian population and “punish” them for their perceived sympathy towards the ECOMOG troops or towards President Kabbah. The evidence further demonstrates that each of the three accused persons had knowledge of the general context in which their acts occurred and of the nexus between those acts and the context.334 182. Regarding the various locations mentioned in paragraphs 59 to 64 of the Indictment where offfences under Counts 10 and 11 are alleged to have taken place, the Prosecution submitted in relation to– (a) Kono District, that the evidence of Prosecution Witnesses including TF1-085, TF1-074, TF1-072, TF1-198, TF1-216, TF1-206, TF1-334, TF1-167, TF1-272 and TF1-045 demonstrates that the physical violence against civilians in this District, including amputations and the carving of the letters “AFRC” and “RUF” into the bodies of civilians, was part of a consistent pattern of criminal behaviour by the Junta troops to punish civilians for their betrayal of the Junta and perceived support of the ECOMOG troops and President Kabbah. The Prosecution evidence further demonstrates that the AFRC and RUF were working together in a joint criminal enterprise to establish Kono District as a Junta stronghold and that by virtue of their leadership positions and membership in the ruling AFRC/RUF Junta and Supreme Council, each of the three accused persons was a participant in the joint criminal enterprise and is criminally responsible under Article 6(1) and/or (3) of the Statute for the alleged crimes in that District;335 (b) Kenema and Koinadugu Districts, that the evidence of Prosecution Witnesses including TF1-122 and TF1-209 demonstrates that the crimes charged under Counts 10 and 11 were carried out in these Districts by members of the AFRC/RUF during the period of the Junta Government and that by virtue of their leadership positions and membership in the ruling AFRC/RUF Junta and Supreme Council, each of the three accused

333 Response, supra note 491, para. 100. 334 Ibid., paras. 25–55, 76–78 and 101. 335 Ibid., paras. 25–55, 163–167, 244–246 and 334–335. 738 part ii

persons was a participant in the joint criminal enterprise and is criminally responsible under Article 6(1) and/or (3) of the Statute for the alleged crimes in those Districts;336 (c) Bombali District, that the evidence of Prosecution Witnesses including TF1-153, TF1-157, TF1-334, TF1-033, TF1-158, TF1-167 and TF1-199 demonstrates that Brima ordered the commission of the alleged crimes, while Kamara and Kanu commanded the troops that committed the alleged crimes in that District. Furthermore the evidence shows that by virtue of their leadership positions and membership in the ruling AFRC/RUF Junta and Supreme Council, each of the three accused persons was a participant in the joint criminal enterprise and is criminally responsible under Article 6(1) and/or (3) of the Statute for the alleged crimes in that District;337 (d) Freetown and Western Area, that while Brima and Kanu did not contest the sufffĳiciency of the Prosecution evidence relating to the crimes charged under Counts 10 and 11, that the evidence of Prosecution Witnesses including TF1-334, TF1-167 implicates each of the three accused persons in the commission of the alleged crimes and as a participant in the joint criminal enterprise;338 (e) Port Loko District, that the evidence of Prosecution Witnesses including TF1-023, TF1-253, TF1-167, TF1-085 and TF1-334 demonstrates that the physical violence against civilians, including amputations was part of a widespread or systematic attack upon the civilian population by the Junta troops to punish civilians for their perceived betrayal of the Junta and sympathy towards the ECOMOG troops and to President Kabbah. Consequently, as members of the ruling AFRC/RUF Junta and Supreme Council, each of the three accused persons was a participant in the joint criminal enterprise and is criminally responsible under Article 6(1) and (3) of the Statute for the alleged crimes in that District.339 Brima Reply 183. Counsel for the accused Brima reiterated submissions in relation to Counts 10 and 11 that the Prosecution has failed to adduce any evidence that Brima was personally involved in the commission of the alleged crimes or that he exercised any control over the perpetrators of the alleged crimes in the Districts of Kenema and Kono.340

336 Ibid., paras. 25–55, 169, 247–249 and 336–341. 337 Ibid., paras. 25–55, 170, 250–252 and 342–344. 338 Ibid., paras. 25–55, 143–145, 170, 253–254 and 345. 339 Ibid., paras. 25–55, 170, 255–256 and 346–349. 340 Brima Reply, supra note 538, paras. 14–15. interlocutory decisions – trial chamber 739

Kamara Reply 184. Counsel for the accused Kamara reiterated submissions in relation to Counts 10 and 11 that the Prosecution has failed to adduce sufffĳicient evidence of Kamara’s criminal liability under Articles 6(1) and/or 6(3) of the Statute for crimes allegedly committed in Kono District.341 Kanu Reply 185. Counsel for the accused Kanu reiterated submissions in relation to Counts 10 and 11 that the Prosecution evidence is insufffĳicient and incapable of sustaining a conviction against Kanu in respect of these two Counts.342

4.4. Findings for Counts 10 and 11

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

Findings with regard to Count 10 (Mutilation) 187. The Trial Chamber fĳinds that there is evidence, if believed, upon which a reasonable tribunal of fact could be satisfĳied beyond reasonable doubt, of the guilt of each of the accused Brima, Kamara and Kanu, with respect to the mutilations (including amputations of limbs and ears) that took place during the periods alleged in the Indictment at various locations including343 Tombodu,344 Small

341 Kamara Reply, supra note 539, para. 7. 342 Kanu Reply, supra note 490, para. 30. 343 The evidence referred to in this paragraph is by no means exhaustive of all the evidence available on the record. In addition the evidence of Witness TF1-272 given on 4 July 2005 refers to a large number of civilian victims of amputations, failed amputations, broken limbs, dismembering of ears, lips and fĳingers, sufffered as a result of a widespread attack on the civilian population in the Districts of Kono, Kenema, Kailahun, Koinadugu, Bombali, Port Loko as well as Freetown and the Western Area. See also Prosecution Exhibits SCSL/ERN/P26; SCSL/ERN/P54, SCSL/ERN/P57 and SCSL/ERN/P58. 344 Witness TF1-334, 20 May 2005, pp. 6–7, 11–15, 17–18; TF1-216, 27 June 2005, pp. 92–95; TF1-072 1 July 2005, pp. 15, 19; TF1-076, 27 June 2005, p. 103; TF1-206, 28 June 2005, pp. 98–104, 107–109. 740 part ii

Sefadu345 Bombafoidu,346 Yaya,347 Manikala,348 Penduma349 in Kono District;350 Kabala351 in Koinadugu District;352 Karina,353 Gbendembu,354 Gbomsamba,355 Rosos,356 Kathanta and Dareha,357 Kamagbo,358 Mayogbo,359 Mabaka,360 Batkanu,361 Mateboi,362 Bornoya,363 Madogbo,364 Madina Loko365 in Bombali District;366 Masiaka,367 Manarma,368 Mamamah,369 Mile Thirty-Eight,370 in Port Loko District;371 Allen Town,372 Kissy,373 Mammy Yoko,374 Parsonage Street375 and Freetown376 in the Freetown and the Western Area.377 188. The Trial Chamber accordingly fĳinds that there is evidence capable of supporting a conviction against each of the accused Brima, Kamara and Kanu

345 Witnesses TF1-198, 28 June 2005, pp. 14–15; TF1-217, 17 October 2005, pp. 17–27. 346 Witness TF1-206, 28 June 2005, pp. 102–104, 107–109. 347 Witness TF1-033, 11 July 2005, p. 14. 348 Witness TF1-217, 17 October 2005, p. 17. 349 Witness TF1-217, 17 October 2005, pp. 23–26. 350 In addition, Prosecution Exhibits P26 and P51 contain documentary evidence of amputations committed on civilians in the villages of Njamaia, Sewafe, Koidu, Yifĳin, Alikalia, Bakedou, Ngandahun, Waimayma, Tombodu and Saiama in Kono District. 351 Witnesses TF1-199, 6 October 2005, p. 88. 352 In addition, Prosecution Exhibit P51 contain documentary evidence of amputations committed on civilians in the villages of Gbenekoro and Serekolia in Koinadugu District. 353 Witnesses TF1-334, 23 May 2005, pp. 69–71; TF1-058, 14 July 2005, pp. 75, 81–86; TF1-058, 14 July 2005, pp. 73–75, 92–94; TF1-157, 22 July 2005, p. 75; TF1-199, 6 October 2005, pp. 75–76. 354 Witnesses TF1-334, 23 May 2005, pp. 81–84; TF1-167, 15 September 2005, p. 83. 355 Witness TF1-334, 24 May 2005, pp. 5–12. 356 Witness TF1-269, 14 July 2005, pp. 41–43. 357 Witness TF1-058, 14 July 2005, pp. 96–98. 358 Witness TF1-157, 22 July 2005, p. 68. 359 Witness TF1-157, 22 July 2005, p. 71. 360 Witness TF1-157, 22 July 2005, p. 80. 361 Witness TF1-179, 27 July 2005, pp. 40–41. 362 Witness TF1-167, 15 September 2005, pp. 60–63. 363 Witness TF1-156, 26 September 2005, pp. 35, 38–39. 364 Witness TF1-156, 26 September 2005, p. 45. 365 Witness TF1-199, 6 October 2005, p. 73. 366 In addition, Prosecution Exhibit P54 contains documentary evidence of amputations carried out on civilians around the villages of Karina, Fadugu and Makeni in Bombali District. 367 Witness TF1-085, 7 April 2005, pp. 43–44. 368 Witness TF1-320, 8 April 2005, pp. 13–15. 369 Witness TF1-227, 11 April 2005, pp. 31–32. 370 Witness TF1-227, 11 April 2005, p. 34. 371 See also the evidence of Witness TF1-167, 15 September 2005, pp. 75–77. 372 Witness TF1-023, 9 March 2005, pp. 36–37. 373 Witnesses TF1-098, 5 April 2005, pp. 39–42; TF1-084, 6 April 2005, pp. 38–43; TF1-167, 16 September 2005, pp. 53–55; TF1-153, 23 September 2005, pp. 18–19. 374 Witness TF1-098, 5 April 2005, p. 42. 375 Witness TF1-278, 6 April 2005, pp. 4–9. 376 Witnesses TF1-084, 6 April 2005, pp. 43–44; TF1-085, 7 April 2005, pp. 7, 17, 25; TF1-083, 8 April 2005, pp. 64–65, 66–67; TF1-227, 8 April 2005, pp. 101–103; TF1-334, 14 June 2005, pp. 68–71, 81–82, 83–87; TF1-104, 30 June 2005, pp. 9–11. 377 In addition Prosecution Exhibits P46 and P66 contain documentary evidence of amputations committed on civilians in the Freetown and Western Area. interlocutory decisions – trial chamber 741 for the crime of Mutilation as a violation of Article 3 Common to the Geneva Convention and of Additional Protocol II pursuant to Article 3.a. of the Statute, as charged under Count 10 of the Indictment. Findings with regard to Count 11 (Other Inhumane Acts) 189. The Trial Chamber fĳinds that there is evidence, if believed, upon which a reasonable tribunal of fact could be satisfĳied beyond reasonable doubt, of the guilt of each of the accused Brima, Kamara and Kanu, with respect to ‘other inhumane acts’ (including cannibalism, maiming, burning, carving or tattooing of the letters AFRC/RUF, disembowelment and grievous wounding of victims) during the periods alleged in the Indictment at various locations including378 Koidu Geya,379 Bomboafoidu,380 Foendor,381 Kayima,382 Koidu383 in Kono District; Kenema Town384 in Kenema District; Rosos385 in Bombali District; Kumala/ Kumalu386 in Koinadugu District, Masiaka387 in Port Loko District and Freetown.388 190. Accordingly, the Trial Chamber fĳinds that there is evidence capable of supporting a conviction against each of the accused Brima, Kamara and Kanu for the crime against humanity of ‘Other inhumane acts’ pursuant to Article 2.i. of the Statute, as charged under Count 11 of the Indictment.

5. Count 12: Crimes Relating to Child Soldiers Introduction 191. The Accused are charged in Count 12 with the crime of conscripting or enlisting children under the age of 15 years into armed forces or groups, or using them to participate actively in hostilities, a serious violation of international humanitarian law punishable under Article 4.c of the Statute. The Indictment alleges that at all relevant times throughout the Republic of Sierra Leone, AFRC/ RUF routinely conscripted, enlisted and/or used boys and girls under the age of 15

378 The evidence referred to in this paragraph is by no means exhaustive of all the evidence available on the record. In addition the evidence of Witness TF1-272 given on 4 July 2005 refers to a large number of civilian victims of amputations, failed amputations, broken limbs, dismembering of ears, lips and fĳingers, sufffered as a result of a widespread attack on the civilian population in the Districts of Kono, Kenema, Kailahun, Koinadugu, Bombali as well as Freetown and the Western Area. See also Prosecution Exhibits P26 and P54. 379 Witness TF1-334, Transcript 20 May 2005, pp. 23–26. 380 Witness TF1-206, Transcript 28 June 2005, pp. 98–100. 381 Witness TF1-076, Transcript 27 June 2005, pp. 104–105. 382 Witness TF1-074, Transcript 5 July 2005, pp. 16–18, 33–34, Prosecution Exhibit P27. 383 Witness TF1-217, Transcript 17 October 2005, pp. 4–5. 384 Witness TF1-122, Transcript 24 June 2005, pp. 33–34. 385 Witness TF1-269, Transcript Transcript 14 July 2005, pp. 42–43. 386 Witness TF1-133, Transcript 7 July 2005, pp. 89–90. 387 Witness TF1-085, Transcript 7 April 2005, pp. 43–44. 388 Witness TF1-104, 30 June 2005, pp. 9–11, 22–24. 742 part ii to participate in active hostilities. Many of these children were fĳirst abducted, then trained in AFRC/RUF camps in various locations throughout the country, and thereafter used as fĳighters. 192. The Indictment charges that, by their acts or omissions in relation to these events, Alex Tamba Brima, Brima Bazzy Kamara and Santigie Borbor Kanu pursuant Article 6.1. and, or alternatively, Article 6.3. of the Statute, are individually criminally responsible for the said crimes.

Elements of the Crime 193. Article 4.c. of the Statute states: The Special Court shall have the power to prosecute persons who committed the following serious violations of international humanitarian law: c. Conscripting or enlisting children under the age of 15 years into armed forces or groups or using them to participate actively in hostilities. 194. We endorse the fĳinding of Trial Chamber I that the elements of the crime are as follows: i. The perpetrator conscripted or enlisted one or more persons into an armed force or group or used one or more persons to participate actively in hostilities; ii. Such person or persons were under the age of 15 years; iii. The perpetrator knew or should have known that such person or persons were under the age of 15 years; iv. The conduct took place in the context of and was associated with an armed conflict. v. The perpetrator was aware of factual circumstances that established the existence of an armed conflict.389 195. In addition to these elements, there are the other constitutive elements of Article 4 crimes mentioned earlier. Submissions Brima Motion 196. Counsel for Brima submitted that there was no evidence that Brima individually or in concert with others ordered the abduction of children or their use as soldiers; the evidence suggested that the victims were either under the control of other people, or that the identifĳication of the accused was mistaken, or that the evidence was unreliable.390

389 See Norman Judgement of Acquittal, supra note 493, para. 124. 390 Brima Motion, supra note 13, para. 76–82. interlocutory decisions – trial chamber 743

Kamara Motion 197. Counsel for Kamara submitted that there were “difffĳiculties in appreciat- ing the proofs of the evidence […] to do with age verifĳication” and “the knowledge by the Accused that the child was under the stipulated age.” Counsel concluded that there was no reference to Kamara in any of the evidence led by the Prosecution.391 Kanu Motion 198. Counsel for submitted that the evidence did not suggest any evidentiary link to Kanu: “[at] the least with respect to the charge of “routinely conscripting, enlisting or using boys and girls under the age of 15 to participate in active hostilities.” In this regard a clear distinction should be made between said actions on the one hand and alleged training of individuals in locations.”392 199. Counsel added that the word “routinely” formed an integral part of the indictment and “no evidence has been adduced for this element on part of Accused Kanu.” Prosecution Response 200. The Prosecution submitted that there was evidence that Brima knew that children were being used. According to the Prosecution, there was evidence that children were trained in camps in Kono and Rosos when Brima was present, and that muster parades of Small Boy Units were held in front of him. Brima also distributed children who had been abducted to various commanders.393 Moreover, Brima gave command of the 4th. Battalion, which had about 13 Small Boy Units to Witness TF1-167.394 The Prosecution further submitted that the same evidence also implicated Kamara. 201. Referring to Kanu’s submissions, the Prosecution stated that the use of the word ‘routinely’ in an indictment did not elevate it to the status of an element of the offfence and that it went to the degree of culpability rather than to criminal liability.395 The Prosecution added that the evidence of witnesses TF1-334 and TF1- 167 showed that Kanu was in charge of training children at Camp Rosos and had fĳive or ten children under his command at Benguema.396

391 Kamara Motion, supra note 105, para. 41. 392 Kanu Motion, supra note 490, para. 76. 393 Prosecution Response, para. 177. 394 Ibid. 395 Ibid., para. 351. 396 Ibid., para. 352. 744 part ii

Brima Reply 202. Counsel for Brima stated that he “stands by the arguments put forward” in submissions and “maintains (the accused Brima) bears no criminal responsibility in respect of the factual allegations enumerated in count 12.”397 Kamara Reply 203. Counsel for Kamara restated his earlier submission that the Prosecution had failed to produce any evidence that Kamara had participated in the crimes.398 Kanu Reply 204. Counsel for the accused Kanu did not make any reply to this count.

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

6. Count 13: Abductions and Forced Labour Introduction 206. Count 13 alleges the crime of enslavement by abductions and forced labour, not sexual slavery. Although sexual slavery can lead to a conviction for

397 Brima Reply, supra note 538, para. 16. 398 Kamara Reply, supra note 539, para. 8. 399 Witness TF1-024, Transcripts, 7 March 2005, p. 77; Witness TF1-023, Transcript 9 March 2005, p. 35; Witness TF1-085, Transcript 7 April 2005, p. 49; Witness TF1-227, Transcript 11 April 2005, pp. 20, 21, 75; Witness TF1-282, Transcript 14 April 2005, p. 30; Witness TF1-334, Transcript 20 May 2005, p. 6; Witness TF1-334, 23 May 2005, p. 74; Witness TF1-334, 24 May 2005, Transcript pp. 17, 18, 23, 24; Witness TF1-334, 14 June 2005, p. 122; Witness TF1-334, 15 June 2005, pp. 14, 16, 17; Witness TF1-334, Transcript 27 June 2005, p. 34; Witness TF1-206, Transcript 28 June 2005, p. 91; Witness TF1-133, Transcript 7 July 2005, pp. 95, 96, 111, 112; Witness TF1-180, Transcript 8 July 2005, pp. 9, 10, 11, 12, 15, 16; Witness TF1-094, Transcript 13 July 2005, pp. 32, 33; Witness TF1-158, Transcript 26 July 2005, pp. 39, 40, 41, 44, 45, 46; Witness TF1-167, Transcript 15 September 2005, p. 64, 65, 66, 67;Witness TF1-199, Transcript 6 October 2005, pp. 74, 83, 84, 85, 86, 89, 90, 91, 92, pp. 98, 99; Prosecution Exhibit No. P 33; Prosecution Exhibit No. P 52; Prosecution Exhibit No. P 66; Prosecution Exhibit No. P 36; Prosecution Exhibit No. P 46; Prosecution Exhibit No. P 54; Prosecution Exhibit No. P 55; Prosecution Exhibit No. P 68; Prosecution Exhibit No. P 62, p. 16496. interlocutory decisions – trial chamber 745 enslavement, the crime of sexual slavery has been charged separately under Count 7 and is dealt with elsewhere in this Decision. 207. The Accused are charged under Count 13 with enslavement, a crime against humanity, punishable under Article 2.c. of the Statute, in that “[at] all times relevant to this Indictment, AFRC/RUF engaged in widespread and large scale abductions of civilians and use of civilians as forced labour. Forced labour included domestic labour and use as diamond miners.” 208. The Indictment alleges that the abductions and forced labour included the districts of Kenema, Kono, Koinadugu, Bombali, Kailahun, Freetown and the Western Area and Port Loko. It is alleged that the Accused, by their acts or omissions in relation to these events, pursuant to Article 6.1 and, or alternatively, Article 6.3 of the Statute, are individually criminally responsible for the said crimes.

Elements of the Crime 209. In Kunarac, the ICTY Trial Chamber held that “enslavement as a crime against humanity in customary international law consisted of the exercise of any or all of the powers attaching to the right of ownership over a person”400 (actus reus), while the mens rea of the violation consists in the intentional exercise of such powers.”401 210. The Kunarac Trial Chamber held that “[u]nder this defĳinition, 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 trafffĳicking.”402 211. The ICTY Appeals Chamber further clarifĳied this defĳinition by fĳinding that “lack of consent” is not an element of the crime of enslavement, although it may be a signifĳicant issue in terms of evidence of the status of the alleged victim.403

400 Kunarac Judgement, supra note 705, para. 540. 401 Ibid. 402 Ibid., para. 542. 403 Kunarac Appeals Chamber Judgement, supra note 510, at para. 120. 746 part ii

212. The defĳinition set forth in Kunarac was later reiterated in Krnojelav, in which it was stated that enslavement as a crime against humanity was the “exercise of any or all of the powers attaching to the right of ownership over a person. The actus reus of enslavement is the exercise of those powers, and the mens rea is the intentional exercise of such powers.”404 213. In Krnojelav, the allegations concerned enslavement for the purpose of forced labour.405 It was held by the Chamber that to establish forced labour constituting enslavement, the Prosecutor must demonstrate that “the Accused (or persons for whose actions he is criminally responsible) forced the detainees to work, that he (or they) exercised any or all of the powers attaching to the right of ownership over them, and that he (or they) exercised those powers intentionally.”406 214. The ICC Preparatory Commission Elements of Crimes, designed to assist ICC judges in their interpretation and application of the subject matter articles of the Rome Statute, sets forth the following version of the elements of the crime of enslavement: 1. “The perpetrator exercised any or all of the powers attaching to the right of ownership over one or more persons, such as by purchasing, selling, lending or bartering such a person or persons, or by imposing on them a similar deprivation of liberty. 2. The conduct was committed as part of a widespread or systematic attack directed against a civilian population. 3. The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population.”407 215. It can be seen that this defĳinition incorporates the defĳinition given in Kunarac with the common elements of crimes against humanity. As such, we fĳind that it is the correct defĳinition to apply to the crime of enslavement charged under Article 2.c. of the Statute.

Submissions Joint Legal Part 216. The Joint Defence submitted that the evidence “falls short in proving all three elements.” It was argued by the Joint Defence that the factors adopted

404 Prosecutor v. Krnojelav, ICTY IT-97-25, Judgement, 15 March 2002, at para. 350. 405 Ibid., para. 357. 406 Ibid., para. 358. 407 Rodney Dixon and Karim Khan, Archbold International Criminal Courts Practice Procedure & Evidence (London: Sweet and Maxwell, 2003), para. A3-011; John Jones and Steven Powles, International Criminal Practice, 3rd Edition (Oxford: Oxford University Press, 2003), para. 4.2.587. interlocutory decisions – trial chamber 747 by the Appeals Chamber in Kunarac have not been established, i.e. “control over someone’s movement, control of physical environment, psychological control, measures taken to prevent or deter escape, force, threat of force or coercion, duration, assertion of exclusivity, subjection to cruel treatment and abuse, control of sexuality and forced labour.”408 The Joint Defence claimed that since these factors had not been established by the Prosecution, the Motion for Acquittal should be granted as to Count 13.409 Brima Motion 217. Counsel for Brima submitted that the Prosecution had failed to adduce suf- fĳicient evidence of abductions and forced mining in the Kenema District. It argued that the evidence given by Witness TF1-045, a former RUF combatant, about mining in Tongo Field in the Kenema District was unreliable. Further, Witness TF1-122 demonstrated that he had no knowledge of what had happened at Tongo except for what he had been told, and his evidence was also unreliable.410 Kamara Motion 218. Counsel for Kamara submitted that the Prosecution did not lead any direct or indirect evidence against Kamara to prove the offfence of enslavement in both Kenema and Kailahun Districts. It was further submitted that Kamara was never present in the said Districts during the period alleged in the Indictment. Also, there was mention of Kamara being allegedly present in “Koinadugu District, in particular Kabala Town, Bombali, Port Loko and Kono Districts respectively as well as Freetown and the Western Area during the period above stated,” but the evidence does not indicate that Kamara was directly or otherwise involved in the commission of the stated crimes.411 Kanu Motion 219. With respect to the crimes of enslavement alleged to have occurred in the locations named in the Indictment, Counsel for Kanu submitted in relation to– (a) Kenema District, that there was no evidence of Kanu’s individual criminal responsibility for the crime of enslavement in this District. The evidence was that Kanu was not even present in the District during the whole of the indictment period; (b) Kono District that there was no evidence of domestic labour and mining in Tombodu between 14 February 1998 and January 2000 and

408 Kunarac Appeals Chamber Judgement, supra note 510, para. 19. 409 Joint Legal Part, supra note 499, para. 81. 410 Brima Motion, supra note 490, paras. 83–85. 411 Kamara Motion, supra note 582, paras. 43–47. 748 part ii

no evidence of enslavement in Tomendeh or Wondedu between 14 February 1998 and January 2000; (c) Koinadugu District, that there was no evidence of enslavement in Heremakono or Kamadugu between 14 February and 30 September 1998. Also, there was no evidence of abduction in Koinadugu (town) in the same period; (d) Kailahun District, that there was no evidence that Kanu had any individual criminal responsibility for the crime of enslavement in this District, nor that he was even present in the District during the whole of the indictment period; (e) Freetown and Western Area, that there was no evidence of abduction of civilians, including children, and their use as forced labour at Peacock Farm in the Western Area; (f) Port Loko District, that there was no evidence of enslavement in about the month of February 1999. In the alternative, there was no evidence that Kanu had any individual criminal responsibility for enslavement in this District. The evidence does not mention any involvement by Kanu in enslavement, nor through the committing, planning, instigating, aiding and abetting, nor the ordering of this crime; (g) All Districts, there was no evidence that Kanu would have borne any superior responsibility or been involved in a joint criminal enterprise.412 Prosecution Response 220. In response to the Joint Defence Motion, the Prosecution submitted that the indicia of enslavement form a consistent pattern in the evidence, which shows that civilians were routinely abducted to carry looted goods, perform domestic work, go on food-fĳinding missions mine diamonds and participate in military training. The Prosecution submitted that this pattern demonstrated the widespread and systematic nature of this crime and was evidence from which the knowledge and complicity of the three Accused persons may be inferred.413 221. In response to Brima, the Prosecution submitted that, according to Witness TF1-045, about 300-500 people mined under AFRC control in 1997 and that “[t]he indicia of enslavement were present whenever a ‘government work day’ was announced.” The Prosecution argued that the evidence of Witness TF1-045 regarding “the capture at gunpoint, undressing and lining up of civilians at the mining area and the beating and serious torture of civilians refusing to mine is echoed in

412 Kanu Motion, supra note 490, para. 77–90. 413 Response, supra note 491, para. 106. interlocutory decisions – trial chamber 749 the evidence of Witness TF1-062,” and that the evidence of both of these witnesses is corroborated by the evidence of Witness TF1-122. 222. As regards the Kono District, Koindadugu District, Bombali District, Kailahun District, Freetown and the Western Area, Port Loko District, the Prosecution assumed, since the Brima Motion made no submissions with respect to these districts, that Brima accepted the sufffĳiciency of the evidence in relation thereto.414 223. In its reply to Kamara, the Prosecution submitted that there was evidence of the Junta’s modus operandi whereby villages were attacked and civilians abducted and forced to become fĳighters, and/or carry goods, and/or perform domestic tasks. Also, in the Kono and Kenema Districts there was evidence to suggest that civilians were forced to work in mines supervised by Junta troops. The Prosecution argued that Kamara bore criminal responsibility for these crimes as an active participant as a commander and/or participated in the joint criminal enterprise given his membership in the Supreme Council and his leadership and/or command position with the AFRC. It was further submitted that in some cases Kamara perpetrated the crimes directly.415 224. In answer to the Kanu Defence Motion, the Prosecution submitted in relation to– (a) Kenema District, that there was evidence of abductions in Fadugu in Kenema. On the basis of Kanu’s participation in a joint criminal enterprise, a reasonable tribunal of fact could convict him for crimes committed in the Kenema District in respect of Count 13; (b) Kono District, that The Prosecution accepted that there was no evidence with respect to Tomendeh. However, it submitted that there was evidence with respect to Tombodu and Wondedu. The Prosecution submitted that at Wondedu (or Wendedu), Witness TF1-217 was threatened with death if he did not allow his sister to be taken by Junta soldiers, after which she was put in a vehicle with 10 other young girls and driven away. The Prosecution further submitted that on the basis of Kanu’s participation in a joint criminal enterprise, there was evidence on which a reasonable tribunal of fact could convict him on crimes committed in Kono District in respect of Count 13; (c) Koinadugu District, that the Prosecution accepted that there was no evidence with respect to Kamadugu and Heremakono. It submitted, however, that there was evidence in respect of Koinadugu Town and that, on the basis of Kanu’s participation in a joint criminal enterprise,

414 See ibid., paras. 179–182. 415 Ibid., paras. 259–261. 750 part ii

a reasonable tribunal of fact could convict him for crimes committed in the Koinadugu District in respect of Count 13; (d) Bombali District, that since the Kanu Motion makes no submission with respect to the Bombali District, the Prosecution assumed that Kanu accepted that there was sufffĳicient evidence against him with respect to this District; (e) Kailahun District, that the Prosecution submitted that there was evidence that would enable a reasonable tribunal of fact to convict Kanu for crimes committed in this District in respect of Count 13 on the basis of his participation in a joint criminal enterprise; (f) Freetown and the Western Area, that the Prosecution accepted that there was no evidence with respect to Peacock Farm, but contested the assertion that there was no evidence of superior responsibility or of participation in a joint criminal enterprise in relation to Kanu in this location. The Prosecution submitted that there was evidence that would enable a reasonable tribunal of fact to convict Kanu on the basis of his participation in a joint criminal enterprise and also by virtue of his position as a commander pursuant to Article 6(3) of the Statute;416 (g) Port Loko District, that The Prosecution submitted that, contrary to what was stated in the Kanu Motion, there was evidence that Kanu ordered a group of civilians to walk to Sumbuya in a line with a rebel in front of and behind each civilian. The Prosecution contended that there was evidence on which a reasonable trier of fact could convict Kanu for crimes committed in Freetown and the Western Area on the basis of his participation in a joint criminal enterprise and also by virtue of his position as a commander pursuant to Article 6(3) of the Statute;417 (h) All Districts mentioned in the Indictment for Count 13, that the Prosecution submitted that, based on the evidence, a reasonable tribunal of fact could convict Kanu of enslavement for all the indicted districts on the basis of his participation in a joint criminal enterprise as well as on the basis of his position of superior authority pursuant to Article 6(3) of the Statute.418 Joint Defence Reply 225. The Joint Defence submitted that in Count 13, “the Prosecution lacks probative and substantiate (sic) evidence to prove its case. The Prosecution relies on the fact that the Accused held a leadership position in the AFRC/RUF and was an integral member of the Supreme Council and is therefore guilty on the basis of

416 Ibid., paras. 368–370. 417 Ibid., paras. 371–373. 418 See ibid., paras. 355–375. interlocutory decisions – trial chamber 751 joint criminal enterprise. The Prosecution failed to lead evidence of material fact that the conduct of the accused makes him jointly responsible for the crimes charged.”419 226. We note that although the Joint Defence Reply has been fĳiled on behalf of two of the Accused – Brima and Kamara – the reply quoted in the above paragraph speaks of “Accused” in the singular. We will assume that Counsel for Brima and Kamara meant the submission to apply to both of the Accused. Brima Reply 227. Counsel for Brima submitted that there was no evidence to show that Brima was liable for the crime of enslavement in Kenema.420 Counsel argued that the deputy-chairman SAJ Musa was in charge, while Witness TF1-114 was responsible for implementing the law and punishing. Kamara Reply 228. Counsel for Kamara submitted that in relation to Counts 12, 13 and 14, the Prosecution failed to adduce any evidence to show that Kamara participated directly or indirectly in the crimes and thus, the Prosecution had failed to prove that Kamara bore any criminal responsibility for the alleged crimes.421 Kanu Reply 229. Counsel for Kanu submitted in relation to Kono District that the fact that soldiers put 10 girls in a vehicle at Wendedu and drove them away is not evidence of enslavement. Counsel submitted in relation to Port Loko District that although the Prosecution referred in its Response to enslavement in Sumbuya, it failed to present any evidence of enslavement in Tendakum or Nonkoba.422

Findings 230. The submissions by the Brima Defence that the evidence or witnesses TF1- 045 and TF1-122 was unreliable are not appropriate under Rule 98. In dealing with a motion under Rule 98, the Trial Chamber does not consider questions of credibility or reliability. Those are matters which should be left to the end of the case.423

419 Joint Defence Reply, supra note 490, para. 19. 420 Brima Reply, supra note 538, para. 17; Count 13 of the Indictment, supra note 539, para. 67, alleges that: “Between about 1 August 1997 and about 31 January 1998, AFRC/RUF forced an unknown number of civilians living in the District to mine for diamonds at Cyborg Pit in Tongo Field.” 421 Kamara Reply, supra note 539, para. 8. 422 Kanu Reply, supra note 490, paras. 31, 32; The Indictment, supra note 479, under Count 13, para. 73, alleges that “AFRC/RUF forces also abducted and used as forced labour civilians from various locations in the Port Loko District, including Tendakum and Nonkoba.” 423 Prosecutor v. Kordic & Cerkez, ICTY IT-95-14/2-T, Decision on Defence Motions for Judgement of Acquittal, 6 April 2000, para. 28. 752 part ii

231. We do not agree with the Brima Defence that there is no evidence against Brima for enslavement in Kenema. There is evidence, if believed, that the AFRC had armed children, including little boys, guarding mines in Cyborg Pit;424 that diamond miners were beaten if they refused to work and were forced to hand over diamonds to the AFRC/RUF;425 and that the AFRC forced civilians to work the mines at Tongo Field;426 they were taken there under armed guard and beaten, tortured and even killed if they refused to mine.427 That evidence, if accepted, is capable of establishing Brima’s responsibility for those crimes under Articles 6.1. and 6.3. 232. There is similar, and other, evidence against the accused Kamara and Kanu in the evidence already referred to, which, if believed, would be capable of proving their responsibility under Articles 6.1. and/or 6.3. of the Statute for the crimes charged in Count 13. 233. With regard to the Kanu Defence’s argument that the fact that soldiers at Wendedu drove away 10 girls in a vehicle428 is not evidence of enslavement, we are of the view that, standing alone it is not, but when considered together with the other evidence available to prove the count, it can indeed be evidence of enslavement, if believed. 234. The Kanu Defence submitted that there was no evidence of enslavement at Tendakum or Nonkoba in the Port Loko District. On our examination of the evidence, this submission appears to be correct in regard to Tendakum. However, there was evidence of enslavement at Nonkoba. Witness TF1-256 testifĳied that sometime in 1999 he and his family were in a group of 55 people captured by soldiers and held in a garden about half a mile from Nonkoba. There were already about 100 captives from Koya. The soldiers gave the witness work to do. At Nonkoba the witness and others were stripped down to their pants and locked in the guard- room and later in a small box. They were not told why.429 235. The Indictment, in paragraph 73 of Count 13, alleges that “AFRC/RUF forces also abducted and used as forced labour civilians from various locations [in] the Port Loko District, including Tendakum and Nonkoba.” [Emphasis added]. So the absence of evidence in relation to Tendakum does not invalidate the allegation in the Indictment with respect to the Port Loko District. While there is no evidence

424 Witness TF1-062, Transcript 27 June 2005, pp. 34, 35. 425 Witness TF1-062, Transcript 27 June 2005, pp. 32, 33. 426 Witness TF1-122, Transcript 24 June 2005, p. 72; Witness TF1-062, Transcript 27 June 2005, pp. 23, 24, 26, 27, 30, 31; Witness TF1-045, Transcript 19 July 2005, pp. 48, 55. 427 Witness TF1-045, Transcript 19 July 2005, pp. 49, 50, 51, 52 55; Witness TF1-062, Transcript 27 June 2005, pp. 27, 34. 428 Witness TF1-217, Transcript 17 October 2005, p. 11. 429 Witness TF1-256, Transcript 14 April 2005, pp. 49–57, 68–70. interlocutory decisions – trial chamber 753 with regard to Tendakum which the Accused would be required to answer, the evidence adduced in relation to Sumbuya430 is in keeping with the allegations in Count 13, even though it was not referred to by name. 236. We note that the Prosecution has conceded that there was no evidence of enslavement in respect of the following locations pleaded in the Indictment: Tomendeh (Kono District),431 Kamadugu and Heremakono (Koinadugu District),432 Peacock Farm (Freetown and the Western Area).433 237. However, we fĳind that there is other evidence with respect to the Districts of Kenema434 Kono,435 Koinadugu,436 Bombali,437 Kailahun,438 Freetown and the Western Area,439 Port Loko,440 upon which, if believed, a reasonable tribunal of fact

430 Witness TF1-282, Transcript 13 April 2005, pp. 7, 9, 15, 31, 32; Witness TF1-033, Transcript 11 July 2005, p. 48, 110, 111. 431 Response, supra note 491, para. 359. 432 Ibid., para. 362. 433 Ibid., para. 368. 434 Witness TF1-062, Transcript 27 June 2005, pp. 23, 24, 32, 33; Witness TF1-045, Transcript 19 July 2005, pp. 48–52, 55. 435 Witness TF1-334, Transcript 20 May 2005, p. 4; Witness TF1-216, Transcript 27 June 2005, pp. 90, 97; Witness TF1-198, Transcript 28 June 2005, pp. 6, 13; TF1-206, 28 June 2005, pp. 90; Witness TF1-072, Transcript 1 July 2005, pp. 9, 10; Witness TF1-074, 5 July 2005, pp. 12, 13, 29, 30, 52, 54, 55, 56,-57, Witness TF1-033, Transcript 11 July 2005, pp. 9, 10, 12, 13; Witness TF1-085, Transcript 7 April 2005, p. 50, Transcript 20 May 2005, pp. 4, 5. 436 Witness TF1-334, Transcript 23 May 2005, p. 17, Witness TF1-209, 7 July 2005, pp. 36, 37, 77; Witness TF1-133, Transcript 7 July 2005, pp. 82, 83, 84, 85, 96, 97, 102, 105, 106, 107, 109, 111; Witness TF1- 094, Transcript 13 July 2005, pp. 28, 29, 32, 33, Witness TF1-167, Transcript 15 September 2005, pp. 58, 59, 64, 65, 66; Witness TF1-199, Transcript 6 October 2005, p. 90; Witness TF1-153, Transcript 22 September 2005, pp. 47, 48, 49, 50, 51. 437 Witness TF1-334, Transcript 23 May 2005, pp. 72, 73, 84; Transcript 24 May 2005, pp. 23, 24, 25, 26, 27, 28, 29, 30, 31; Witness TF1-180, Transcript 8 July 2005, pp. 7, 8; Witness TF1-058, Transcript 14 July 2005, pp. 64, 65, 66, 87; Witness TF1-157, Transcript 22 July 2005, pp. 62, 63, 64, 65, 66, 67, 70, 71, 72, 76, 77, 78, 86, 104, 106, 107, 108, Transcript 25 July 2005, pp. 3, 4, 5, 9, 10, 16, Transcript 26 September 2005, pp. 6, 7, 8, 9, 22; Witness TF1-158, Transcript 25 July 2005, pp. 3, 4, 5, 9, 10, 16; Transcript 26 July 2005, pp. 32, 33, 35, 36, 38, 39, 41, 42, 43; Witness TF1-167, Transcript 15 September 2005, pp. 58, 59, 61, 63, 64, 65; Witness TF1-156, Transcript 26 September 2005, p. 45; Witness TF1-180, Transcript 8 July 2005, pp. 7, 8, 9; Witness TF1-055, Transcript 12 July 2005, pp. 136, 137; Witness TF1-199, Transcript 6 October 2005, pp. 71, 73, 76. 438 TF1-114, 14 July 2005, p. 129; TF1-045, 19 July 2005, pp. 85, 86; Witness TF1-113, Transcript 18 July 2005, pp. 84, 85, 86. 439 Witness TF1-024, Transcript 7 March 2005, pp. 43, 44, 49, 50, 51; Witness TF1-023, Transcript 9 March 2005, pp. 30, 31, 32, 33, 34, 35, 37, 38; Witness TF1-084, Transcript 6 April 2005, p. 40; Witness TF1-085, Transcript 7 April 2005, pp. 11, 12, 15, 22, 35, 49; Witness TF1-227, Transcript 8 April 2005, pp. 96, 97, 98, 99, 100, Transcript 11 April 2005, pp. 5, 6, 9, 10, 11; Witness TF1-334, Transcript 13 June 2005, pp. 97, 98; Transcript 14 June 2005, pp. 25, 62, 63, 64, 78, 79, 103, 104, 114, 115, 116, 118, 119, 120, 121; Transcript 15 June 2005, pp. 3, 13, 14, 15; Witness TF1-104 30 June 2005, p. 17; Witness TF1-081, 4 July 2005, pp. 10, 11; Witness TF1-094, 13 July 2005, pp. 40, 41; Witness TF1-157, Transcript 25 July 2005, p. 25; Transcript 26 September 2005, pp. 22, 23, 24; Witness TF1-167, 15 September 2005, pp. 21, 52, 53; Witness TF1-153 23 September 2005, pp. 9, 13. 440 Witness TF1-085, Transcript 7 April 2005, pp. 49, 50; Witness TF1-320, Transcript 8 April 2005, pp. 13, 18; Witness TF1-277, Transcript 11 April 2005, pp. 25, 42, 43, 44; Witness TF1-334, Transcript 15 June 2005, pp. 21, 22, 31; Witness TF1-167, Transcript 16 September 2005, pp. 70, 72. 754 part ii could be satisfĳied beyond reasonable doubt of the guilt of each of the Accused Brima, Kamara and Kanu for the crime of Enslavement as a crime against humanity pursuant to Article 2.c. of the Statute as charged under Count 13 of the Indictment. Accordingly, we are satisfĳied that the evidence is capable of supporting a conviction against each of the Accused Brima, Kamara and Kanu on Count 13 of the Indictment.

7. Count 14: Crimes Relating to Burning and Looting Introduction 238. The Accused are charged in Count 14 with the crime of Pillage, a violation of Article 3 common to the Geneva Conventions and of Additional Protocol II, punishable under Article 3.f. of the Statute. It is charged that “At all times relevant to this Indictment, AFRC/RUF engaged in widespread unlawful taking and destruction by burning of civilian property.” This looting and burning is alleged to have included the Districts of Bo, Koinadugu, Kono, Bombali, Freetown and the Western Area. 239. It is further alleged that by their acts or omissions in relation to these events, each of the three Accused are individually criminally responsible for the crime of Pillage pursuant to Article 6.1. and/or Article 6.3. of the Statute.

7.1. Count 14: Pillage (Article 3.f. of the Statute) Elements of the Crime 240. Trial Chamber I was of the opinion that the crime of pillage included the following constitutive elements: (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.”441 Additional to this defĳinition are the constitutive elements of Common Article 3 crimes mentioned earlier. 241. That defĳinition of the crime of pillage is apparently based on the ICC Preparatory Commission Elements of Crimes.442 The Commission included the words “private or personal use” in the elements of the crime of pillage to exclude the possibility that appropriations justifĳied by military necessity might fall within

441 See Norman Judgement of Acquittal, supra note 493, para. 102. 442 Report of the Preparatory Commission for the International Criminal Court Addendum: Finalized Draft Text of the Elements of Crimes, U.N. Doc. PCNICC/2000/INF/3/Add.2 (2000). interlocutory decisions – trial chamber 755 the defĳinition. Nevertheless, the defĳinition is framed to apply to a broad range of situations. As was stated by Trial Chamber I, “the ICTY in the case of Celebici 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. ’ ”443 242. Inclusion of the element of “private or personal use” in the defĳinition appears to be at variance with Celebici, since it may not include ‘organized’ and ‘systematic’ seizure of property. It is therefore our view that the requirement of “private or personal use” is unduly restrictive and ought not to be an element of the crime of pillage. 243. Accordingly, we conclude that the crime of pillage within the meaning of Article 3.f. of the Statute is comprised of the elements constitutive of Common Article 3 crimes, together with the following specifĳic 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. Submissions Joint Legal 244. The primary Joint Defence submission was that burning does not “fulfĳil the elements of pillage,” since pillage requires appropriation, whereas burning does not. The Joint Defence claimed that this argument is strengthened when Article 5.b. of the Statute is considered (Article 5.b. provides for the Special Court to have the power to prosecute persons under the Malicious Damage Act, 1861, which provides for offfences relating to the wanton destruction of property, such as setting fĳire to dwelling-houses, public buildings and other buildings). 245. However, the Joint Defence submitted in the alternative that if the Trial Chamber fĳinds that burning is an element of pillage, then each Defence team would rely on its separate submissions on the facts. The Joint Defence submitted that the conclusion was justifĳied, whether based on the present submissions or the separate submissions on the facts by each Defence team, that there was no evidence to support this Count.444 Brima Motion 246. Counsel for Brima submitted that there was insufffĳicient evidence that Brima ordered looting and burning as alleged. There was no evidence that Brima

443 See Norman Judgement of Acquittal, supra note 493, para. 102; and, Prosecutor v. Delalic et al., ICTY IT-96-21-T, Judgement, 16 November 1998, [“Delalic Judgement”], para. 590. 444 Joint Legal Part, supra note 499, paras. 82–88. 756 part ii bore any individual criminal responsibility, nor any superior responsibility, nor that he participated in a joint criminal enterprise.445 Kamara Motion 247. Counsel for Kamara submitted that the evidence was insufffĳicient to support the charge of pillage against Kamara in respect of the districts named in Count 14.446 Kanu Motion 248. Counsel for Kanu submitted in relation to– (a) Bo District, that there was no evidence of looting or burning in Telu, Sembehun, or Mamboma between 1 and 30 June 1997, and no evidence of looting in Tikonko during the same period. It was further submitted that there was no evidence that Kanu bore any form of individual criminal responsibility for pillage in Bo and was not even there during the Indictment period; (b) Koinadugu District, that there was no evidence that Kanu bore any form of individual criminal responsibility for pillage in this District. Further, there was no evidence of looting or burning in Heremakono and Kamadugu between 14 February and 30 September 1998, nor any evidence of looting in Fadugu during that period; (c) Kono District, that there was no evidence that Kanu bore any form of individual criminal responsibility for pillage in this District, and no evidence of any burning or looting in Foindu between 14 February and 30 June 1998; (d) Freetown and the Western Area, that there was no evidence of looting in Calaba Town, Fourah Bay, Upgun area, or Pademba Road between 6 January and 28 February 1999; (e) All Districts mentioned in Count 14, that there was no evidence that Kanu bore superior responsibility, nor that he participated in a joint criminal enterprise.447 Prosecution Response 249. In reply to the Joint Defence submission, the Prosecution submitted 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

445 Brima Motion, supra note 490, paras. 86–92. 446 Kamara Motion, supra note 582, paras. 48–52. 447 Kanu Motion, supra note 490, paras. 91–103. interlocutory decisions – trial chamber 757 appropriation of property. ’ ”448 The Prosecution argued that ‘appropriation’ does not exclude the act of burning, because “before third party property can be burnt it must be appropriated in the sense that the owner is no longer in control of his property. Moreover, the violent nature of pillage reflects the broader range of appropriation of property, including property appropriated for the mere purpose of depriving the owner of that property.”449 250. The Prosecution also challenged the Defence submission regarding the scope of Article 5. The Prosecution argument was that “the offfence under Sierra Leonean law refers only to ‘wanton destruction of property under the Malicious Damage Act’ and does not cover war crimes.” Accordingly, where the acts in question amount to war crimes, “Article 3 of the Statute, as lex specialis, prevails over the general law of wanton destruction of property.” 251. The Prosecution submitted in the alternative that if “burning” had been incorrectly pleaded as “pillage,” the Trial Chamber had the power to reclassify the offfence.450 252. In regard to Brima’s submissions, the Prosecution conceded that it had not led evidence with respect to Telu, Sembehun, Mamboma in Bo District, Heremakono and Kamadugu in Koinadugu District, Foindu in Kono District and Pademba Road in Freetown.451 The Prosecution submitted however, that there was sufffĳicient evidence for a reasonable tribunal of fact to fĳind Brima guilty. There was evidence from which it could be inferred that Brima had knowledge that Junta troops engaged in looting and that it was reasonably foreseeable that looting would be carried out by Junta soldiers in the jungle. There was evidence of Brima’s participation in a joint criminal enterprise and of his command responsibility. 253. Responding to Brima’s submissions, the Prosecution submitted in relation to– (a) Bo District, that the attacks on Bo District occurred during the time of the AFRC government; (b) Koinadugu District, that there was evidence that burning and looting were part of the modus operandi of attacks on civilians, which occurred in many villages; (c) Kono District, that Koidu Town was burned under the supervision of Kamara in the presence of Brima. Brima and Kamara participated in the burning. Other villages were also burned;

448 Response, supra note 491, para. 109, citing Prosecutor v. Naletilic and Martinovic, ICTY IT-98- 34-T, Judgement, 31 March 2003, para. 612. 449 Ibid., para. 109. 450 Ibid., paras. 107–115. 451 Ibid., para. 184. 758 part ii

(d) Bombali District, that Brima ordered the burning of villages. He ordered that the town of Karina should be burned and was present when it was burned and looted; (e) Freetown and the Western Area, that the evidence of targeted burning was overwhelming. Brima ordered all police stations to be burned and ordered the burning of Freetown. He participated in the burning of Fourah Bay. There was also evidence of looting in Wellington, Kissy and Thunderhill.452 254. In regard to Kamara’s submissions, the Prosecution noted that Kamara was simply making a general assertion that there was insufffĳicient evidence of Kamara’s criminal liability. However, the Prosecution contended that there was evidence establishing the criminal liability of Kamara for looting and burning. The Prosecution referred to evidence of various incidents, including one where Kamara and his troops completely looted Lunsar and removed a safe from a bank in Makeni.453 255. Responding to Kanu’s submissions, the Prosecution submitted in relation to– (a) Bo District, that it had not led evidence with respect to Telu, Sembehun and Mamboma. However, it submitted that reasonable tribunal of fact could convict Kanu for crimes committed in the Bo District on the basis of his participation in a joint criminal enterprise; (b) Koinadugu District, that it had not led evidence with respect to Heremakono and Kamadugu. However, it submitted that there is evidence that the burning of houses and the taking of property were part of the modus operandi of attacks on civilians which occurred in many villages and that Kanu was present during most of the attacks; (c) Kono District, that it led no evidence with respect to Foindu. However, there was evidence that Sewafe was burned down in the presence of senior commanders, and Koidu Town, Tombodu, Yengema, Bumpe, Jagbwema Fiama and Yomandu were also burned down. There was evidence that Kanu was present during the destruction of Gandorhun; (d) Bombali District, that since the Kanu Motion made no submission on the Bombali District, the Prosecution assumed that Kanu accepted the sufffĳiciency of the evidence against him with respect to this District; (e) Freetown and the Western Area, that there was evidence of burning in Pademba Road, Calaba Town, Fourah Bay and Upgun and also evidence of looting in the Presidential Offfĳice and Kingtom. There was also

452 Ibid., paras. 183–196. 453 Ibid., paras. 262, 263. interlocutory decisions – trial chamber 759

evidence that Kanu participated in the burning of Calaba Town and reported back to Brima, ordered the burning of houses in Pademba Road, commanded a group sent to burn homes at Ross Road, and directly committed acts of burning homes and property. There was also evidence of looting in Wellington, Kissy and Thunderhill.454 Joint Defence Reply 256. The Joint Defence did not make any specifĳic reply to the Prosecution’s Response in relation to Count 14. Brima Reply 257. The Brima Defence submitted that the Prosecution has not stated what common plan was shared, who formed the joint enterprise, “to indicate with cer- titude that the looting was reasonably foreseeable to the First Accused.” The Brima Defence added that Johnny Paul Koroma and Mosquito, who were superior in command to Brima, engineered the looting, so Brima cannot be said to bear the greatest responsibility for the crimes.455 Kamara Reply 258. Counsel for Kamara submitted that in relation to Counts 12, 13 and 14, the Prosecution failed to adduce any evidence to show that Kamara participated directly or indirectly in the crimes and thus the Prosecution had failed to prove that Kamara bore any criminal responsibility for the alleged crimes.456 Kanu Reply 259. Counsel for Kanu submitted that the evidence referred to by the Prosecution does not support the allegation that Kanu was present at the destruction of Gandorhun in Kono District. 260. The Kanu Defence submitted that the Prosecution has not refuted that there was no evidence of looting in Calaba Town, Fourah Bay, Upgun, or Pademba Road in Freetown and the Western Area. Although the Prosecution alleged that there was evidence of burning in those locations, the Kanu Defence contended that “burning” is not evidence of looting, and it cannot substitute for the lack of evidence on the pillage charge.457 Findings 261. We note that the Prosecution has conceded that it has not led evidence in respect of the following locations pleaded in the Indictment: Villages of Telu,

454 Ibid., paras. 376–390. 455 Brima Reply, supra note 538, para. 18. 456 Kamara Reply, supra note 539, para. 8. 457 Kanu Reply, supra note 490, paras. 33, 34. 760 part ii

Sembehun, Mamboma (Bo District), Heremakono, Kamadugu (Koinadugu District), Foindu (Kono District),458 and – with regard to the Accused Brima – Pademba Road (Freetown).459

7.2. Destruction by Burning of Civilian Property 262. Upon examination of the available evidence, we fĳind that there is evidence, if believed, that is capable of implicating each of the Accused in the destruction of civilian property by burning.460 However, what we are called upon by the parties to decide is whether or not acts of destruction of civilian property by burning fall within the defĳinition of “pillage.” The Defence contends that it does not, whereas the Prosecution argues that the allegation of destruction by burning of civilian property has been correctly brought as pillage under Count 14. 263. In determining this issue, there are a number of possibilities to consider. For instance, it may be the case that such a charge is more appropriately brought under Article 3.b. of the Statute (Collective Punishments), or under Article 3.d. (Acts of Terrorism), or perhaps under Article 4(a) (Attacks against the civilian population). 264. It may also be the case that such a crime could be charged under Article 3 of the Statute as a violation of Additional Protocol II, even though it is not among the offfences mentioned in Article 3. Article 3 of the Statute is concerned with violations of Article 3 Common to the Geneva Conventions and of Additional Protocol II. These violations are expressed to “include” the offfences enumerated there, implying that the enumerated offfences are not an exhaustive list of the possible violations. In Tadic the ICTY Appeals Chamber held that it had jurisdiction over several crimes that are not mentioned in its Statute.461 It was of the view that the crimes mentioned in Article 3 of the ICTY Statute were merely illustrative, since Article 3 – before enumerating the violations – provides that they ‘shall include but not be limited to’ the list of offfences. 265. Article 13(1) of Additional Protocol II states that “the civilian population and individual civilians shall enjoy general protection against the dangers arising from military operations.” The ICTY Trial Chamber in Hadzihasanovic, elaborating on the history of this provision, stated that the

458 Response, supra note 491, paras. 7, 184, 376, 379, 382, Annex A. 459 Ibid., para. 184. 460 For example Witness TF1-167, Transcript 15 September 2005, p. 58; Witness TF1-334, Transcript 23 May 2005, pp. 39–42; Witness TF1-334, Transcript 20 May 2005, pp. 19–22; Witness TF1-334, Transcript 23 May 2005, pp. 56–59; Witness TF1-334, Transcript 14 June 2005, pp. 66, 67. 461 Tadic Appeals Chamber Decision on Interlocutory Appeal on Jurisdiction, supra note 528, para. 87. interlocutory decisions – trial chamber 761

“history of the diplomatic negotiations leading to the adoption of Protocol II demonstrates that, at the beginning of the negotiations, inserting a specifĳic provision on the general protection of civilian property had been envisaged. That article was removed in order to simplify the proposed texts. However, the Commentary of the International Committee of the Red Cross on Article 13 states that securing general protection of the civilian population in conformity with this Article is ‘based on the general principles relating to the protection of the civilian population which apply irrespective of whether the conflict is an international or an internal one.’ The principle of duplicity and the principle of proportionality are among these principles. These principles imply that attacks against dwellings, schools and other buildings occupied by civilians are prohibited unless the buildings have become legitimate military objectives.”462 Citing distinguished academic authors in this fĳield, the ICTY concluded that the “protection of civilian property may therefore be the necessary corollary to the protection of the civilian population in certain cases.”463 266. This decision accords with the jurisprudence of the ICTY that has held, referring to the ICJ Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, that “deliberate attacks on civilians or civilian objects are absolutely prohibited by international humanitarian law.”464 267. Given the jurisprudence of the ICTY, it is arguable that the protection of civilian property is a necessary corollary to the protection of the civilian population referred to in established customary international law and provided for in Article 13(1) of Protocol II. Thus the conclusion may be justifĳied that the Special Court has jurisdiction under both Sierra Leonean law (under Article 5 of the Statute) and international law to prosecute persons who have committed offfences relating to the destruction of property by burning. 268. We are of the view that it is more appropriate to defer a fĳinal decision on this issue until the end of the trial. For the purpose of Rule 98, even if the evidence of burning is put aside completely, we are satisfĳied that there is other evidence capable of supporting a conviction on Count 14.

7.3. Looting 269. Notwithstanding the Defence argument that “burning” as alleged in Count 14 is not an element of pillage, there is no dispute between the parties that “appropriation” includes the act of looting. Even allowing for the concession made by the Prosecution in respect of locations for which no evidence was led, we fĳind that

462 Hadzihasanovic Decision on Motions for Acquittal, supra note 489, para. 98. 463 Ibid., para. 98, citing Michael Bothe, Karl Josef Partsch, Waldemar A. Solf, New Rules for Victims of Armed Conflicts, (The Hague/Boston/London: 1982), pp. 670, 676–677. 464 Kupreskic Judgement, supra note 798, para. 521. 762 part ii there is evidence465 of looting with respect to the Districts of Bo,466 Koinadugu,467 Kono,468 Bombali,469 and Freetown and the Western Area470 upon which, if believed, a reasonable tribunal of fact could be satisfĳied beyond reasonable doubt of the guilt of each of the Accused Brima, Kamara and Kanu for the crime of pillage as a violation of Article 3 Common to the Geneva Conventions and of Additional Protocol II pursuant to Article 3.f. of the Statute. Accordingly, pursuant to Rule 98, we are satisfĳied that the evidence is capable of supporting a conviction against each of the Accused Brima, Kamara and Kanu on Count 14 of the Indictment.

IX. Individual Criminal Responsibility Under the Statute

Introduction 270. The Indictment cumulatively charges each of the Accused, Alex Tamba Brima, Brima Bazzy Kamara and Santigie Borbor Kanu for the crimes in Counts 1 through 14 under diffferent modes of liability. These are: (a) Individual criminal responsibility pursuant to Article 6.1. of the Statute in that: (i) each Accused planned, instigated, ordered, or committed the said crimes, or (ii) each Accused otherwise aided and abetted in the planning, preparation, or execution of the said crimes, or (iii) 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.471

465 The references to the evidence in this paragraph are by no means exhaustive. 466 Witness TF1-054, Transcript 19 April 2005, pp. 84, 85. 467 Witness TF1-153, Transcripts 22 September 2005, pp. 33, 34, 35, 36, pp. 49, 50; Witness TF1-199, Transcript 6 October 2005, p. 79, p. 88, p. 90. 468 Witness TF1-074, Transcript 5 July 2005, pp. 12, 13; Witness TF1-217, Transcript 17 October 2005, p. 5. 469 Witness TF1-334, 23 May 2005, p. 72; Witness TF1-334, Transcript 14 July 2005, p. 49; Witness TF1-269, Transcript p. 49; Witness TF1-058, Transcript 14 July 2005, p. 64, p. 88; Witness TF1-158, Transcript 22 July 2005, p. 62, pp. 75, 76, 84, 85, 87; Witness TF1-158, Transcript 26 July 2005, pp. 32, 33; Witness TF1-167, Transcripts 15 September 2005, p. 30; Witness TF1-199, Transcript 6 October 2005, pp. 70, 72, 76. 470 Witness TF1-024, Transcript 8 March 2005, pp. 25; Witness TF1-084, Transcript 6 April 2005, p. 38; Witness TF1-085, Transcript 7 April 2005, p. 15; Witness TF1-083, Transcript 8 April 2005, p. 59; Witness TF1-021, Transcript 15 April 2005, p. 34; Witness TF1-334, Transcript 14 June 2005, pp. 24, 26; Witness TF1-334, Transcript 13 June 2005, p. 103. 471 Indictment, para. 35. interlocutory decisions – trial chamber 763

(b) In addition, or alternatively, 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. 271. In reviewing the evidence adduced by the Prosecution in relation to each of the 14 Counts, the Trial Chamber has applied the test of whether there is evidence – if believed – upon which a reasonable tribunal of fact could be satis- fĳied beyond reasonable doubt of the guilt of the accused on the particular charge in question. In other words, the Rule 98 standard for determining the sufffĳiciency is not evidence on which a tribunal should convict, but evidence on which it could convict.472 272. We have confĳined our deliberations to specifĳic issues raised by the Joint Defence and by Counsel for each Accused in support of their Motions. Where no such issues have been raised, we have not come to any conclusions nor made any fĳindings. Submissions made by the Defence on individual criminal responsibility relating to a specifĳic count in the Indictment have been addressed by the Trial Chamber under the relevant count, rather than under one or more of the forms of criminal conduct which are discussed in this section. 273. We stress once again that, pursuant to Rule 98, a ruling that there is evidence capable of supporting a conviction on a particular charge does not necessarily mean that the Trial Chamber will, at the end of the case, return a conviction on that charge.473 274. In our fĳindings which follow, we have considered all of the available evidence, and we have repeated some – but not all – of the references to such evidence which were mentioned in relation to the individual counts in the Indictment.

8. Individual Criminal Responsibility under Article 6.1 of the Statute 275. Article 6.1. of the Statute lists the forms of criminal conduct which, provided that all other necessary conditions are satisfĳied, may result in an accused incurring individual criminal responsibility for one or more of the crimes provided for in the Statute.474 Articles 6.1. 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.

472 See paras. 6–15 above. 473 See para. 13 above. 474 See Prosecutor v. Mitar Vasiljevic, ICTY IT-98-32-A, Judgement (AC), 25 February 2004, [“Vasiljevic Appeal Judgement”], para. 95. 764 part ii

276. The Trial Chamber in the ICTY case of Kordic475 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 fĳirmly 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 sufffĳiciently 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. Article 7(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.”

8.1. Committing 277. An individual can be said to have “committed” a crime when he or she physically perpetrates the relevant criminal act or engenders a culpable omission in violation of a rule of criminal law.476 There can be several perpetrators in relation to the same crime where the conduct of each one of them fulfĳils the requisite elements of the defĳinition of the substantive offfence.477 Submissions Joint Legal Part 278. The Joint Defence submitted that “committing’ refers to physically participating in a crime, directly or indirectly, or failing to act when such duty exists, coupled with the requisite knowledge.”478 279. The Defence argued that the ICTY Appeals Chamber in the Blaskic Appeal Judgement stated that the mens rea for crimes against humanity required “knowledge on the part of the accused that there is an attack on the civilian population as well as knowledge that this act is part thereof”479 and that therefore the standard is not whether the accused “knowingly took the risk of participating in the implementation of the (purported) ideology, policy or plan underlying the alleged crimes against humanity.”480 The Joint Defence contends that no

475 Kordic Judgement, supra note 798, para. 373. 476 Tadic Appeals Chamber Judgement, supra note 510, para. 188. 477 See Kunarac Judgement, supra note 705, para. 390. 478 Joint Legal Part, supra note 499, para. 23, citing Prosecutor v. Tadic, ICTY IT-94-1-A, Judgement, 15 July 1999, para. 188. 479 Prosecutor v. Blaskic, ICTY IT-95-14-T-A, Judgement, Appeals Chamber, 29 July 2004, [“Blaskic Appeal Judgement”], para. 126. 480 Ibid., para. 257, cited by Defence in Joint Legal Part, supra note 499, para. 23. interlocutory decisions – trial chamber 765 reasonable tribunal of fact could fĳind that the evidence of the Prosecution has shown that “either three Accused” had this knowledge, beyond this mere “taking of risk.”481 Brima Motion 280. Counsel for Brima submitted that the Prosecution failed to prove that Brima bears any individual criminal responsibility under Article 6.1. for any of the charges against him. Prosecution Response 281. In response, the Prosecution agreed that in the Blaskic Appeal Judgement, the ICTY Appeals Chamber held that the mens rea applicable to crimes against humanity requires knowledge on the part of the accused that there is an attack on the civilian population, as well as knowledge that his act is part thereof. In keeping with that mens rea, the Prosecution submitted that a reasonable trier of fact could conclude on the basis of the evidence that all three Accused had knowledge that there was an attack on the civilian population, as well as knowledge that their acts were part thereof.482 Findings 282. We do not agree with the Joint Defence submission that there is no evidence to the Rule 98 standard of “knowledge” on the part of the three Accused. There is evidence483 that the accused Brima committed crimes in the districts named in the indictment.484 Equally there is evidence in this regard implicating the accused Kamara485 and Kanu.486 283. Accordingly, we are satisfĳied that there is evidence upon which, if believed, a reasonable tribunal of fact could hold beyond reasonable doubt that all three Accused were aware that a widespread or systematic attack on the civilian population was taking place and that their actions were part of the attack.

481 Joint Legal Part, supra note 499, para. 24. 482 Response, supra note 491, paras. 16–18. 483 The references to the evidence in this paragraph are by no means exhaustive. 484 Witness TF1-334, Transcript 23 May 2005, p. 69; Witness TF1-334, Transcript 14 June 2005, pp. 22, 23, 26, 64 66, 67; Witness TF1-334, Transcript 15 June 2005, pp. 2–3; Witness TF1-153, Transcript 23 September 2005, p. 21, p. 25. 485 Witness TF1-334, Transcript 15 May 2005, p. 3, p. 25, p. 55; Witness TF1-334, Transcript 14 May 2005, p. 83; Witness TF1-334, Transcript 17 May 2005, p. 81; Witness TF1-334, Transcript 14 June 2005, p. 26. 486 Witness TF1-277, Transcript 8 March 2005, p. 50; Witness TF1-227, Transcript 11 April 2005, p. 21; Witness TF1-282, Transcript 14 April 2005, p. 13; Witness TF1-334, Transcript 14 June 2005, p. 67, p. 69, p. 83, p. 100; Witness TF1-334, Transcript 15 June 2005, p. 3; Witness TF1-167, Transcript 15 September 2005, p. 56. 766 part ii

8.2. Planning 284. “Planning” implies that one or several persons contemplate designing the commission of a crime at both the preparatory and execution phases.487 The actus reus requires that the accused, alone or together with others, designed the criminal conduct constituting the crimes charged. It is sufffĳicient to demonstrate that the planning was a factor substantially contributing to such criminal conduct.488 The mens rea requires that the accused acted with direct intent in relation to his own planning or with the awareness of the substantial likelihood that a crime would be committed in the execution of that plan. Planning with such awareness has to be regarded as accepting that crime.489 285. 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.490 Submissions Joint Legal Part 286. The Joint Defence, relying on a passage from the Brdjanin Trial Judgement,491 submitted that responsibility for planning a crime only incurs if it is demonstrated that the Accused “substantially (was) involved at the preparatory stage of that crime in the concrete form it took, which implies that he possessed sufffĳicient knowledge thereof in advance.” The Defence contended that the Prosecution has not adduced any evidence of planning in this sense.492 Prosecution Response 287. The Prosecution pointed out in its submissions that the Joint Defence Motion expresses the Defence’s views on “planning” and “ordering,” “but do not themselves challenge any of the counts in the Indictment.”493 288. The Prosecution submitted that the statement of the Trial Chamber in Brdjanin cited by the Defence was made in the context of a case where the accused did not physically perpetrate any of the crimes established, “and may be seen as a conservative defĳinition of planning.” The Prosecution cited further from the same passage in Brdjanin that this “knowledge requirement should not, however, be

487 Brdjanin Trial Chamber Judgement, supra note 510, para. 268; Prosecutor v. Stakic, ICTY IT-97- 24-T, Judgement, 31 July 2003, para. 443; Krstic Judgement, supra, note 557, para. 601. 488 Prosecutor v. Kordic and Cerkez, ICTY IT-95-14/2 A, Judgement, Appeals Chamber, 17 December 2004, [“Kordic Appeals Judgement”], para. 26. 489 Ibid., paras. 29, 31. 490 Kordic Judgement, supra note 798, para. 386. 491 Brdjanin Trial Chamber Judgement, supra note 510, para. 357 492 Joint Legal Part, supra note 499, para. 27. 493 Response, supra note 491, para. 22. interlocutory decisions – trial chamber 767 understood to mean that the Accused would have to be intimate with every detail of the acts committed by the physical perpetrators.”494 Kanu Reply 289. The Kanu Reply claimed that the Prosecution has failed to indicate any authorities which justify a deviation from the Brdjanin Trial Chamber defĳinition of planning.495

Findings 290. Our view of the passage from the Brdjanin Trial Judgement upon which the Joint Defence relies is that the Chamber there was referring to the particular circumstances of an accused in that case. It held that, since the accused did not physically perpetrate the crimes which had been committed, he could only be held responsible for planning them if it were shown that, by being involved at the preparatory stage of the crimes in the concrete form they took, he had the required knowledge that there was a likelihood that a crime would be committed. The Chamber found that although the accused had supported a ‘Strategic Plan,’ he had participated in its implementation merely by virtue of his authority as President of the ARK Crisis Stafff and his public utterances. The evidence was insufffĳicient to prove that the accused was involved in the immediate preparation of the concrete (as distinct from abstract) crimes. 291. In other words, the prosecution in that case was unable to demonstrate that the accused had been involved in any planning which had substantially contributed to the crimes committed. We do not think that that decision is a departure from the defĳinition of “planning” we have stated above. 292. Applying the Rule 98 standard, the Trial Chamber is satisfĳied that there is evidence496 upon which, if believed, a reasonable tribunal of fact could fĳind beyond reasonable doubt that each of the three Accused Brima,497 Kamara498 and Kanu499 planned the crimes charged in the Indictment in Counts 1 through 14 at both the

494 Ibid., para. 23. 495 Kanu Reply, supra note 491, para. 9. 496 The references to the evidence in this paragraph are by no means exhaustive. 497 Witness TF1-334, Transcript 23 May 2005, p. 56, 57; Witness TF1-334, Transcript 24 May 2005, p. 30, p. 46, p. 62, 63; Witness TF1-334, Transcript 25 May 2005, 39, 40; Witness TF1-334, Transcript 13 June 2005, p. 100; Witness TF1-334, Transcript 14 June 2005, p. 47, 48, p. 53, p. 62, 63, p. 66, p. 78, p. 84; Witness TF1-167, Transcript 16 September 2005, pp. 40, 41; Witness TF1-153, Transcript 22 September 2005, p. 94, 95; Witness TF1-153, Transcript 23 September 2005, pp. 28, 29. 498 Witness TF1-334, Transcript 24 May 2005, p. 46, 47; Witness TF1-334, Transcript 14 June 2005, pp. 47, 62, 78, 79, 82, 83, 84, 85, 96, 97; Witness TF1-167, Transcript 23 September 2005, p. 18. 499 Witness TF1-334, Transcript 23 May 2005, p. 76; Witness TF1-334, Transcript 24 May 2005, pp. 62, 63; Witness TF1-334, Transcript 14 June 2005, pp. 47, 62, 66, 67, 78, 79, 82, 83, 84, 85, 96, 97. 768 part ii preparatory and execution phases, that the crimes were actually committed and that each of the Accused intended the crimes to be committed. 8.3. Instigating 293. “Instigating” means prompting another to commit an offfence.500 Both acts and omissions may constitute instigating, which covers express as well as implied conduct.501 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.502 The actus reus requires that the accused prompted another person to commit the offfence503 and that the instigation was a factor substantially contributing to the conduct of the other person(s) committing the crime.504 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.505 294. The Joint Defence have made no submissions on this form of criminal conduct. Having noted this, the Prosecution has consequently not addressed the issue.506 8.4. Ordering 295. Responsibility for ordering requires proof that a person in a position of authority uses that authority to instruct another to commit an offfence.507 A formal superior/subordinate relationship between the accused and the perpetrator is not required.508 It is sufffĳicient that the accused possessed the authority to order the commission of an offfence and that such authority can be reasonably implied.509 There is no requirement that the order be given in writing or in any particular form, and the existence of an order may be proven through circumstantial evidence.510 It is not necessary for the order to be given by the superior directly to the

500 Akayesu Trial Chamber Judgement, supra note 519, para. 482. 501 Brdjanin Trial Chamber Judgement, supra note 510, para. 269. 502 Ibid., para. 269. 503 Kordic Appeals Judgement, supra note 965, para. 27. 504 Ibid., para. 27. 505 Ibid., paras. 29, 32. 506 See Response, supra note 491, para. 22. 507 Krstic Judgement, supra, note 557, para. 601; see also Brdjanin Trial Chamber Judgement, supra note 510, para. 270. 508 Kordic Appeals Judgement, supra note 965, para. 28. 509 Kordic Judgement, supra note 798, para. 388; Akayesu Trial Chamber Judgement, supra note 519, para. 483. 510 Blaskic Judgement, supra note 526, para. 281. interlocutory decisions – trial chamber 769 person(s) who perform(s) the actus reus of the offfence. What is important is the commander’s mens rea, not that of the subordinate executing the order.511 296. The actus reus of “ordering” requires that the accused, as a person in a position of authority, instructed another person to commit an offfence.512 The mens rea 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 would be committed in the execution of that order.513 Submissions Joint Legal Part 297. The Joint Defence submitted that the Prosecution has not adduced any evidence of “ordering.” It argued that the mens rea for ordering must require that the Accused had an “awareness of a higher likelihood of risk and a volitional element must incorporated (sic) in the legal standard.”514Any lesser standard could amount to a form of strict liability, as there is always a possibility that violations could occur during the course of military operations.515 The Joint Defence contends that these observations are relevant to the present case “now that it is the Prosecution’s assertion, based upon the testimony of Colonel Iron that the AFRC qualifĳies as a regular army.”516

Prosecution Response 298. In response, the Prosecution observed that the Defence has expressed its views on aspects of the elements of “ordering” but has not challenged any of the counts in the Indictment.517 299. The Prosecution did not dispute the defĳinition of the requisite mens rea stated by the Defence. However, it submitted that, contrary to the argument of the Defence, the evidence establishes a volitional element and a direct link between the relevant orders and the commission of crimes, as well as a pattern of conduct from which the requisite direct intent may be inferred.518

511 Blaskic Judgement, supra note 526, para. 282; Kordic Judgement, supra note 798, para. 388. 512 Kordic Appeals Judgement, supra note 965, para. 28. 513 Ibid., paras. 29, 30. 514 Blaskic Appeal Judgement, supra note 956, para. 42, cited in the Joint Legal Part, supra note 499, para. 28. 515 Ibid., para. 41, cited in the Joint Legal Part, supra note 499, para. 28. 516 Joint Legal Part, supra note 499, para. 28. 517 Response, supra note 491, para. 22. 518 Ibid., para. 24. 770 part ii

Findings 300. We are is satisfĳied on the basis of the evidence519 available, if believed, that a reasonable tribunal of fact could fĳind beyond reasonable doubt that all three Accused Brima,520 Kamara521 and Kanu,522 possessed the authority to give orders, that their orders were in fact implemented by other individuals and that they knowingly and wilfully used their positions of authority to order those individuals to commit the crimes charged in the Indictment in Counts 1 through 14.

8.5. Aiding and Abetting 301. The actus reus of “aiding and abetting” requires that the accused gave practical assistance, encouragement, or moral support which had a substantial efffect on the perpetration of the crime.523 302. The mens rea requires that the accused knew that his acts would assist the commission of the crime by the perpetrator or 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.524 Submissions Joint Legal Part 303. In relation to “aiding and abetting” the Joint Defence made a similar submission to that made under “Committing” above, that is, that no reasonable tribunal of fact could fĳind that the three Accused had the knowledge required for the mens rea, beyond a mere “taking of risk.”525 According to the Joint Defence, “the

519 The references to the evidence in this paragraph are by no means exhaustive. 520 Witness TF1-024, Transcript 7 March 2005, p. 50; Witness TF1-334, Transcript 23 May 2005, pp. 16, 42, 53, 56, 57, 58, 67, 79, 85, 86, 92, 93, 104; Witness TF1-334, Transcript 24 May 2005, pp. 3, 9, 10; Witness TF1-334, Transcript 13 June 2005, pp. 101, 110, 111, 118; Witness TF1-334, Transcript 14 June 2005, p. 5, pp. 29, 32, 47, 53, 62, 66, 67, 78, 83, 84, 97, 100, 118, 119; Witness TF1-334, Transcript 15 June 2005, p. 15; Witness TF1-033, Transcript 11 July 2005, pp. 11, 12, 14, 19, 23, p. 25, 33, 34, 61, 62; Witness TF1-158, Transcript 26 July 2005, p. 38; Witness TF1-167, Transcript 16 September 2005, pp. 16, 17, 42, 43, 53, 54; Witness TF1-153, Transcript 22 September 2005, p. 76; Witness TF1-153, Transcript 23 September 2005, pp. 24, 28. 521 Witness TF1-023, Transcript 10 March 2005, p. 36; Witness TF1-334, Transcript 15 June 2005, pp. 11, 21, 20, 21, 23, 25, 28, 32, 35; Witness TF1-334, Transcript 20 May 2005, p. 7; Witness TF1-334, Transcript 23 May 2005, p. 66; Witness TF1-167, Transcript 16 September 2005, pp. 64, 65, 66. 522 Witness TF1-085, Transcript 7 April 2005, pp. 28, 23, 31; Witness TF1-227, Transcript 11 April 2005, pp. 9, 10; Witness TF1-282, Transcript 14 April 2005, p. 4; Witness TF1-334, Transcript 24 May 2005, p. 49; Witness TF1-334, Transcript 13 June 2005, p. 39; Witness TF1-334, Transcript 14 June 2005, pp. 68, 89; Witness TF1-167, Transcript 16 September 2005, pp. 16, 53. 523 Blaskic Appeal Judgement, supra note 956, para. 46. 524 Ibid., para. 50. 525 Joint Legal Part, supra note 499, para. 25. interlocutory decisions – trial chamber 771 actus reus of aiding and abetting requires that the accused intend to contribute to the commission of the offfence; it requires ‘practical assistance, encouragement, or moral support which has a substantial efffect on the perpetration of the crime. ’ ”526 The Joint Defence contended that even if the evidence for the Prosecution indicates that the Accused were present at certain alleged crimes scenes, “presence alone at the scene of a crime is not conclusive of aiding and abetting, unless it is shown to have a signifĳicant legitimizing efffect on the principal.”527 Prosecution Response 304. The Prosecution submitted that the statement by the Joint Defence regarding the required actus reus is incorrect. The Prosecution argued that the intent of the accused relates to the mens rea for the offfence, not the actus reus. The Prosecution maintained that the mens rea of aiding and abetting does not require that the accused intend to contribute to the commission of the offfence in the sense of sharing the mens rea of the crime.528 305. In addition, the Prosecution, while agreeing with the Joint Defence that the presence of the accused at the scene of the crime is not conclusive, submitted that it is equally true that presence at the scene of the crime is also not a prerequisite for aiding and abetting. Further, in the present case the evidence extends well beyond mere presence, and “in any event, the presence of a superior at the scene of a crime can be perceived as an important indicium of encouragement or support.”529 Findings 306. We reject the Joint Defence submission regarding the actus reus required for aiding and abetting. We hold that the correct actus reus is that which we have stated above 307. The Trial Chamber is satisfĳied that there is evidence,530 if believed, that each of the three Accused Brima,531 Kamara532 and Kanu533 aided and abetted in the

526 Joint Legal Part, supra note 499, para. 25, citing Prosecutor v. Furundzija, ICTY IT-95-17/1-T, Judgement, 10 December 1998, paras. 235, 249; Akayesu Trial Chamber Judgement, supra note 519, para. 484. 527 Joint Legal Part, supra note 499, para. 25, citing Prosecutor v. Kunarac et al., ICTY IT-96-23-T, Judgement, 22 February 2001, para. 393. 528 Response, supra note 491, para. 20. 529 Ibid., para. 21. 530 Witness TF1-334, Transcript 14 June 2005, p. 64–5; Witness TF1-334, Transcript 24 May 2005, pp. 30, 63; Witness TF1-153, Transcript 23 September 2005, pp. 13–14. 531 Witness TF1-334, Transcript 14 June 2005, p. 64–5; Witness TF1-334, Transcript 24 May 2005, pp. 30, 63; Witness TF1-153, Transcript 23 September 2005, pp. 13–14. 532 Witness TF1-334, Transcript 14 June 2005, p. 64–5; Witness TF1-334, Transcript 24 May 2005, pp. 30, 63; Witness TF1-153, Transcript 23 September 2005, pp. 13–14. 533 Witness TF1-334, Transcript 14 June 2005, p. 64–5; Witness TF1-334, Transcript 24 May 2005, pp. 30, 63; Witness TF1-153, Transcript 23 September 2005, pp. 13–14. 772 part ii planning, preparation or execution of the crimes charged in Counts 1 through 14 of the Indictment. The relevant evidence, if believed, suggests that each of the three Accused facilitated and assisted in the commission of the said crimes and encouraged and gave moral support to the physical perpetrators thereof,534 and that their contribution to the commission of these crimes was substantial. The evidence also establishes, if believed, that each of the three Accused knew that the principal offfenders intended to commit the said crimes and that his acts assisted the principal offfenders in the commission of the said crimes.535

9. Individual Criminal Responsibility by Participation in a Joint Criminal Enterprise 308. Article 6.1. does not make explicit reference to “joint criminal enterprise.” However, the Appeals Chamber of the ICTY has previously held that participation in a joint criminal enterprise is a form of liability which existed in customary international law at the time (that is in 1992), and that such participation is a form of “commission” under (the equivalent provision to) Article 6.1. of the Statute.536 309. Three categories of joint criminal enterprise have been identifĳied by the ICTY Appeals Chamber in Tadic.537 1. “The “basic” form, in which all co-perpetrators, acting pursuant to a common purpose, possess the same criminal intention. 2. The “systemic” form, which is a variant of the basic form characterised by the existence of an organised system of ill-treatment, for example, concentration camps in which the prisoners are killed or mistreated pursuant to the joint criminal enterprise. 3. The “extended” form, which concerns cases involving a common purpose to commit a crime where one of the perpetrators commits an act which, while outside the common purpose, is nevertheless a natural and foreseeable consequence of the efffecting of that common purpose.” 310. The actus reus of the participant in a joint criminal enterprise is common to each of the three above categories and comprises the following three elements: First, a plurality of persons is required. Second, the existence of a common purpose which amounts to or involves the commission of a crime provided for in

534 Witness TF1-334, Transcript 14 June 2005, p. 64–5; Witness TF1-334, Transcript 24 May 2005, pp. 30, 63; Witness TF1-153, Transcript 23 September 2005, pp. 13–14. 535 Witness TF1-334, Transcript 14 June 2005, p. 64–5; Witness TF1-334, Transcript 24 May 2005, pp. 30, 63; Witness TF1-153, Transcript 23 September 2005, pp. 13–14. 536 See Tadic Appeals Chamber Judgement, supra note 510, para. 188 and 226; Vasiljevic Appeal Judgement, supra note 951, para. 95–99. 537 See Tadic Appeals Chamber Judgement, supra note 510, paras. 195–226. interlocutory decisions – trial chamber 773 the Statute is required. Third, the participation of the accused in the common purpose is required.538 311. The mens rea difffers according to the category of joint criminal enterprise. The diffferent mens rea are as follows: 1. “Basic” form: the intent to perpetrate a certain crime (this being the shared intent on the part of all co-perpetrators).539 2. “Systemic” form: personal knowledge of the system of ill-treatment, and the intent to further it.540 3. “Extended” form: the intention to participate in and further the common criminal purpose of a group and to contribute to the joint criminal enterprise or in any event to the commission of a crime by the group. In addition, responsibility for a crime other than the one which was part of the common design arises “only if, under the circumstances of the case, (i) it was foreseeable that such a crime might be perpetrated by one or other members of the group and (ii) the accused willingly took that risk.”541

Submissions Joint Legal Part 312. The Joint Defence argued that the Indictment does not make clear which category of joint criminal enterprise is alleged, although it is probably the third category.542 As regards the fĳirst category, the Joint Defence submitted that mens rea has not been established.543 The Joint Defence also submitted that the Prosecution has not met the criteria required for the third category544 and has failed to prove the existence of a common plan.545 Prosecution 313. The Prosecution submitted in response that the Indictment clearly alleges all three categories of joint criminal enterprise546 and that the evidential requirements in relation to these categories have been met.547

538 Ibid., para. 227; see also Vasiljevic Appeal Judgement, supra note 951, para. 100. 539 Tadic Appeals Chamber Judgement, supra note 510, paras. 196, 228. 540 Ibid., paras. 202, 220 and 228. 541 Ibid., para. 228; see also paras. 204, 220; see also Vasiljevic Appeal Judgement, supra note 951, para. 101. 542 Joint Legal Part, supra note 499, para. 29. 543 Ibid., para. 31. 544 Ibid., para. 32. 545 Ibid., para. 33. 546 Response, supra note 491, para. 27. 547 Ibid., paras. 29–54. 774 part ii

Joint Legal Reply 314. Counsel for Brima and Kamara submitted that although the Prosecution claims that the Indictment alleges all three categories of joint criminal enterprise, “it is of considerable importance for both the Trial Chamber and the accused to know with some precision from the indictment whether any particular crime charged is alleged by the prosecution to fall within the object of the enterprise or to go beyond that object.”548 Counsel for the two Accused argued that the Prosecution has not given specifĳic evidence as to what crimes fell within the joint criminal enterprise or which ones were reasonably foreseeable. They contended that the “Prosecution has chosen not to articulate the specifĳic aspects of the accused individuals’ behaviour that links them to an alleged joint criminal enterprise.”549 315. Counsel for Brima and Kamara made the further submission that the Prosecution has failed to “establish the common crimial intent that existed amongst the members of the Supreme Council550 to commit the said crimes as alleged in the indictment or that the crimes were reasonably foreseeable by the Accused from the joint enterprise of the Supreme Council.”551 Kanu Reply 316. Counsel for Kanu submitted that the Prosecution has never opted for the exact category of joint criminal enterprise it will pursue at trial. Counsel says that although the Prosecution claims that all three categories of joint criminal enterprise are clearly alleged in the Indictment, this is not correct since paragraph 34 of the Indictment only refers to “actions within the JCE or were a reasonably foreseeable consequence of the joint criminal enterprise,” but no option for the exact category of joint criminal enterprise was specifĳied.552 317. Counsel for Kanu also relied on the ruling in Krnojelac that the Prosecution was not allowed to extend the interpretation of the Indictment in its Pre-Trial Brief from a basic form of joint criminal enterprise to an extended one and that “it would not be fair to the Accused to allow the Prosecution to rely upon this extended form of joint criminal enterprise liability with respect to any of the crimes alleged in the Indictment in the absence of such an amendment to the Indictment to plead it expressly.”553

548 Joint Defence Reply, supra note 490, para. 16, citing Prosecution v. Brdanin and Talic, ICTY IT-96-36, Decision on Form of Further Amended Indictment and Prosecution Application to Amend, 26 June 2001, para. 39. 549 Joint Defence Reply, supra note 490, para. 17. 550 See Response, supra note 491, para. 35. 551 Joint Defence Reply, supra note 490, para. 18. 552 Kanu Reply, supra note 490, para. 12. 553 Ibid., para. 13, citing Prosecutor v. Krnojelac, ICTY IT-97-25-T, Judgement, 15 March 2002, para. 86. interlocutory decisions – trial chamber 775

318. Counsel for Kanu submitted that because of the failure by the Prosecution to opt for the exact category of joint criminal enterprise as a form of liability, the Defence application should be granted in that “the liability form of JCE should be dismissed.”554 319. Another argument put forward by Counsel for Kanu is in relation to paragraph 33 of the Prosecution Response, in which it is asserted that “[t]here is no requirement that the plurality of persons be organized in a military, political or administrative structure and membership in the enterprise may be fluid so long as the common aim remains constant.” However, Counsel for Kanu submitted that if there was a common aim it clearly changed. According to Counsel for Kanu, the original aim of the AFRC was changed when it was ousted by ECOMOG in February 1998 and split into separate groups, each with separate aims and objectives diffferent from the initial alleged common design. Counsel relied on Blagojevic,555 where it was held that if the “objective is fundamentally diffferent in nature and scope from the common plan or design to which the participants originally agreed,” and any escalation of the original objective occurs, this must either be agreed to if a person is to incur criminal responsibility under the JCE concept or that escalation must be a natural and foreseeable consequence of the original enterprise. Counsel for Kanu submitted that “No proof has been adduced for this situation.”556 320. The last submission by Counsel for Kanu was in relation to the crime of extermination, charged in Count 3. With reference to the Kailahun District, it was submitted that no reasonable tribunal of fact could convict Kanu of participating in a joint criminal enterprise “without any further specifĳication thereof.”557

Findings 321. The Prosecution claimed that the Indictment clearly alleges all three categories of joint criminal enterprise whereas the Defence says that it does not. Counsel for Kanu, relying on Krnojelac, argues that the Prosecution is not permitted to extend the interpretation of the Indictment in its Pre-Trial Brief from a basic form of joint criminal enterprise to an extended one. We do not think that the Prosecution has done so. 322. We have perused the Prosecution’s Pre-Trial Brief and noted the following: (i) In paragraph 1, the Prosecutor states that the Pre-Trial Brief is submitted “to provide a preliminary indication as to the factual allegations

554 Ibid., para. 14. 555 Prosecutor v. Blagojevic and Jokic, ICTY IT-02-60-T, Judgement, 17 January 2005, para. 700. 556 Kanu Reply, supra note 490, para. 15. 557 Ibid., para. 16. 776 part ii

and the points of law and legal issues pertinent to the case against all three accused persons.” (ii) It is recited in paragraph 124 that: “All three accused in this case entered pleas of not guilty to all crimes which they are charged, thereby placing every element of the crime in issue.” (iii) In Section F – “Criminal Responsibility Under Articles 6(1) and 6(3)” – “Modes of Participation Explained” – the Prosecution deals with: a. Planning, Instigating and Ordering, b. Committing, c. Aiding and Abetting, d. “Aiding and Abetting” vs. “Joint Criminal Enterprise.” (iv) Under “Joint Criminal Enterprise – Categories,” paragraph 209 states: Three diffferent categories of joint criminal enterprise have been recognised: a. Same criminal intention – cases where each member voluntarily participates in one aspect of the common design and intends the resulting crimes. b. Acting pursuant to concerted plan – cases where there exists an organised system to commit the alleged crimes and where the accused actively participates in its enforcement; is aware of its nature; and, intends to further its purpose. This mens rea may be inferred from the position of authority of the accused within the system. Existence of a formal or informal agreement between the members is not required; nor is their presence at the time or place of the crime. c. Foreseeable conduct outside the common design – cases involving a common criminal plan where one of the participants commits a crime which is outside the common plan, but nevertheless a natural and foreseeable consequence of its execution. Such a non-envisaged crime is considered foreseeable when the participants, although not intending this result, were able to predict it and regardless continued to participate in the plan.558 323. We have quoted from the Prosecution’s Pre-Trial Brief merely to show that the three categories of joint criminal enterprise have been specifĳied there, and not just the basic form. However, whether the Indictment has been sufffĳiciently pleaded or is defective in form is not a matter which falls within the scope of Rule 98. A challenge to the form of the Indictment should have been raised in a preliminary motion under Rule 72. We will not make any fĳindings on the issue in the present decision. Regarding the Joint Defence submission that the Indictment does not make it clear which form of joint criminal enterprise is alleged, we can only observe that the procedure under Rule 72 is designed to enable an accused to obtain further information in order to fully understand the nature of the charges brought against him. 324. In regard to the argument put forward by Counsel for Kanu in relation to paragraph 33 of the Prosecution’s Response, no basis has been established for the assertion that the common aim changed in that the AFRC “fell apart into separate

558 We have not repeated here the authorities cited by the Prosecution. interlocutory decisions – trial chamber 777 groups with clearly separate aims and objectives, if at all, which did not match with the initial alleged common design.” Counsel for Kanu has not referred us to any specifĳic evidence which would support that submission. We therefore fĳind the submission without merit. 325. For the purposes of Rule 98, the Trial Chamber is satisfĳied that a reasonable tribunal of fact could, on the basis of the evidence559 before it, if believed, fĳind beyond reasonable doubt that each of the three Accused and other persons identi- fĳied in the Indictment560 participated in a joint criminal enterprise to commit the crimes charged in the Indictment in Counts 1 through 14.561 326. The evidence referred to, if believed, is capable of establishing all three categories of joint criminal enterprise. However, the Trial Chamber will not at this stage make a fĳinal determination as to the precise basis of liability of each Accused for participation in a joint criminal enterprise, or whether an Accused ought to be acquitted of an alternative basis of liability. A determination as to the liability of each Accused depends to a certain extent on issues of fact and the weight to be attached to certain evidence, which calls for an assessment of the credibility and reliability of that evidence. These are issues which do not arise for determination until the judgment phase.562

10. Individual Criminal Responsibility under Article 6.3 of the Statute 327. 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 efffective control over their subordinates, are each individually

559 The references to the evidence in this paragraph are by no means exhaustive. 560 See Indictment, supra note 479, para. 33. 561 Witness TF1-334, Transcript 16 May 2005, pp. 44–45, 56–57; Witness TF1-334, Transcript 17 May 2005, pp. 22, 24, 53–54, 56, 57, 58–59, 72–74, 74–75, 80–81, 83, 84–85, 86–87, 92–94, 100–102, 102–103, 103–105, 107–108, 112, 113–115, 117; Witness TF1-334, Transcript 18 May 2005, pp. 4–6, 15–19, 21, 25, 29–30; 33–34, Witness TF1-334, Transcript 19 May 2005, pp. 4, 4–7, 7–10, 16–1, 23–26, 31–47; Witness TF1-334, Transcript 20 May 2005, pp. 7–11, 17–18, 23–26, 27–28, 28–30, 44–51, 51–53, Witness TF1-334, Transcript 24 May 2005, pp. 51–56, 105–107; Witness TF1-334, Transcript 25 May 2005, pp. 5–10, 53–56; Witness TF1-334, Transcript 13 June 2005, pp. 88–89, 91–92; Witness TF1-334, Transcript 14 June 2005, pp. 48–49, 53–55, 108–112; Witness TF1-334, Transcript 15 June 2005, pp. 17–20, 22–24, 35–38, 42–49; Witness TF1-122, Transcript 24 June 2005, pp. 7–9, 9–12, 15–16, 18–23, 26–28, 32–33, 35–49, 63–67, 71–72; Witness TF1-062, Transcript 27 June 2005, pp. 15, 20–22, 23, 36–37; Witness TF1-019 Transcript 30 June 2005, pp. 85–87, 117, 90–95; Witness TF1-074, Transcript 5 July 2005, pp. 11–12, 48–51; Witness TF1-113, Transcript 18 July 2005, pp. 80, 89–90, 94; Witness TF1-045, Transcript 19 July 2005, pp. 30–31, 33–34, 36–37, 38–40, 53, 55, 57–60, 81–82, 93–94, 95–97, 102–104; Witness TF1-157, Transcript 25 June 2005, pp. 10, 16; Witness TF1-167, Transcript 15 September 2005, p. 23; Witness TF1-153, Transcript 22 September 2005, pp. 49–50, 42–45, 94; Witness TF1-199, Transcript 6 October 2005, pp. 69–71, 81, 83–85, 85–88; Witness TF1-217, Transcript 17 October 2005, pp. 4–5, 7–9, 13–14. 562 Milosevic Decision on Motion for Judgement of Acquittal, supra note 488, para. 293. 778 part ii 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.563 328. 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. As is evident from its terms, there is a three-pronged test for liability pursuant to Article 6.3., which is as follows: 1. the existence of a superior-subordinate relationship between the commander (the accused) 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 the necessary and reasonable measure to prevent the crime or punish the perpetrator thereof.564

Submissions Joint Legal Part 329. The Joint Defence submitted that the Prosecution has failed to provide evidence that any of the Accused can be held liable under Article 6.3. of the Statute.565 According to the Joint Defence, none of the Accused held the position or influence required to establish efffective control over the acts of his subordinates. The Joint Defence referred to the expert evidence of Colonel Iron and claim that it fails to establish efffective command and control on the part of the three Accused.566 Brima 330. It was submitted on behalf of Brima that no evidence has been adduced to prove that Brima had superior responsibility and that the Prosecution has failed to establish the three necessary elements.

563 Indictment, supra note 479, para. 36. 564 See also Delalic Judgement, supra note 920, para. 346. 565 Joint Legal Part, supra note 499, para. 36. 566 Ibid., paras. 37 and 38. interlocutory decisions – trial chamber 779

Prosecution 331. The Prosecution replied that the evidence taken as a whole shows that each of the three Accused exercised efffective control over his subordinates. The Prosecution disputed that the evidence of Colonel Iron fails to establish efffective control. The Prosecution then went on to refer to various pieces of evidence which, it claimed, prove superior responsibility. It also referred to evidence which it said demonstrates that all three Accused had both actual and constructive knowledge of the crimes alleged in the Indictment. Further, the Prosecution submitted that the evidence referred to shows that all three Accused persons failed to use their power to prevent or punish the crimes committed by their subordinates.567

Findings 332. The Trial Chamber is satisfĳied that there is evidence,568 if believed, upon which a reasonable tribunal of fact could be satisfĳied beyond reasonable doubt that the Accused, Brima,569 Kamara570 and Kanu571 are each responsible pursuant to Article 6.3. of the Statute for the crimes charged in the Indictment in Counts 1 through 14. There is evidence that each of the Accused held positions of authority, exercised efffective control over subordinates, knew or had reason to know that subordinates were about to commit or had committed the said crimes and failed to prevent those crimes or to punish the perpetrators thereof.

567 Response, supra note 491, paras. 61–72. 568 The references to the evidence in this paragraph are by no means exhaustive. 569 Witness TF1-024, Transcript 7 March 2005, pp. 45–46, 51; Witness TF1-023, Transcript 10 March 2005, pp. 30, 31; Witness TF1-334, Transcript 16 May 2005, pp. 21, 75; Witness TF1-334, Transcript 17 May 2005, pp. 52–53; Witness TF1-334, Transcript 19 May 2005, pp. 7–9, 14–15; Witness TF1-334, Transcript 20 May 2005, pp. 27–28, 40–41, 85–107; Witness TF1-334, Transcript 23 May 2005, pp. 6–8, 26–39, 39–42, 56–59, 67; Witness TF1-334, Transcript 24 May 2005, pp. 3, 30, 45–46, 87–105; Witness TF1-334, Transcript 25 May 2005, pp. 5, p. 48, 50–51, 53–56; Witness TF1-334, Transcript 13 June 2005, pp. 3–4, 57–87, 92–93, 117–118; Witness TF1-334, Transcript 14 June 2005, pp. 5–7, 19–22, 82–83, 83–87, 88–89, 95–97, 99–100, 108–112; Witness TF1-334, Transcript 15 June 2005, pp. 16–17; Witness TF1-033, Transcript 11 July 2005, pp. 6, 10–12, 12–13, 14, 20–21, 23–24, 24–25, 32, 32, 44, 45, 60, 61; Witness TF1-045, Transcript 19 July 2005, p. 53. 570 Witness 023, Transcript 10 March 2005, pp. 33, 36; TF1-334, Transcript 19 May 2005, pp. 37, 50; Witness TF1-334, Transcript 25 May 2005, p. 50; Witness TF1-334, Transcript 23 May 2005, pp. 6, 61, 107, 108, 109; Witness TF1-334, Transcript 20 May 2005, pp. 8, 17, 31, 32, 82; Witness TF1-334, Transcript 13 June 2005, pp. 6, 13, 26, 58, 59; Witness TF1-334, Transcript 19 May 2005, pp. 7, 16, 26; Witness TF1-334, Transcript 18 May 2005, pp. 23, 24; Witness TF1-334, Transcript 16 May 2005, pp. 74, 75; Witness TF1-334, Transcript 15 June 2005, pp. 25, 32, 33, 42, 43; Witness TF1-334, Transcript 14 June 2005, p. 26; Witness TF1-167, Transcript 16 September 2005, pp. 70, 64, 65, 66, 76; Witness TF1-153, Transcript 22 September 2005, pp. 33, 36. 571 Witness TF1-085, Transcript 7 April 2005, pp. 32, 38, 69; Witness TF1-227, Transcript 11 April 2005, pp. 8, 25; Witness TF1-282, Transcript 13 April 2005, pp. 14–15, 21; Witness TF1-334, Transcripts 13 June 2005, p. 39; Witness TF1-334, Transcripts 23 May 2005, pp. 24, 72; Witness TF1-334, Transcripts 24 May 2005, pp. 24, 62; Witness TF1-158, Transcripts 26 July 2005, p. 38; Witness TF1-167, Transcripts 16 September 2005, pp. 17, 53. 780 part ii

X. Disposition

FOR THE FOREGOING REASONS THE TRIAL CHAMBER DISMISSES the Joint Legal Part Defence Motion for Judgement of Acquittal Under Rule 98, the Brima – Motion for Acquittal Pursuant to Rule 98, the Brima Bazzy Kamara Defence Motion for Judgement of Acquittal of the Second Accused – Brima Bazzy Kamara, and the Kanu – Factual Part Defence Motion for Judgement of Acquittal Under Rule 98 in their entirety. Honourable Justice Julia Sebutinde appends a Separate Concurring Opinion to this Unanimous Decision. Done at Freetown this 31th day of March 2006.

Justice Teresa Doherty Justice Richard Lussick Justice Julia Sebutinde Presiding Judge interlocutory decisions – trial chamber 781

SEPARATE CONCURRING OPINION OF HON. JUSTICE JULIA SEBUTINDE

I. Introduction

1. Let me begin by stating that I agree in the main with the unanimous Decision of the Trial Chamber on the Defence Motions for Judgement of Acquittal Pursuant to Rule 98 of the Rules (herein referred to as the “unanimous Decision”). 2. I unreservedly endorse the Trial Chamber’s fĳindings therein with regard to the legal standard applicable to a Rule 98 Motion; the law relating to the various crimes charged in the Indictment and the Trial Chamber’s disposition with regard to each of the Defence Motions. I do however, feel compelled to comment on two areas which are incidental to the issues raised in the unanimous Decision. The two areas concern Count 7 and Count 8 of the Indictment. Although none of the parties have raised these issues, I feel compelled in the interest of justice to comment on them in this Opinion.

II. Count 7 Offends the Rule Against Duplicity

3. It is a generally accepted practice in International Tribunals for an Indictment to charge several crimes (whether cumulatively or alternatively) as long as those crimes are based upon common facts.572 Indeed Rule 49 of the Rules of Procedure and Evidence of the Special Court permits the joining of two or more crimes in one indictment “if the series of acts committed together form the same transaction, and the said crimes were committed by the same accused.” However, care must be taken to ensure that the joining of crimes in an indictment is not done in a manner that does not offfend the rule against multiplicity, duplicity, uncertainty or vagueness, and that is not likely to embarrass or prejudice the accused person or violate his right under Article 17(4) a. of the Statute “to be informed of the nature and cause of the charge against him.” In other words, each offfence or crime must be clearly and unambiguously charged in a separate count of the Indictment to enable the accused to respond thereto separately. This Opinion is not concerned with the Prosecution’s right to charge the accused persons with multiple counts. Rather it concerns the rights of the accused persons to know precisely and in an unambiguous manner, the nature of the charge or charges against him in the Indictment.

572 Examples include the Prosecutor v. Delalic et al., Case No. IT-96-21-A, Appeals Chamber, Judgement, 20 February 2001; Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Trial Chamber, Judgement, 2 September 1998. 782 part ii

4. A count is said to be defective or “bad for duplicity” when it charges or sub- sumes more than one offfence. Archbold on Criminal Pleading, Evidence and Practice writes– “The Indictment must not be double, that is to say, no one count of the Indictment should charge the Defendant with having committed two or more separate offfences. Duplicity in a count is a matter of form, not evidence.”573 5. In this case, Count 7 of the Indictment which falls under the general heading “Sexual Violence” charges each of the accused persons Brima, Kamara and Kanu as follows: “Count 7: Sexual Slavery and any other form of sexual violence, a crime against humanity punishable under Article 2.g of the Statute.” [Emphasis added] 6. On the face of it, Count 7 appears to charge the accused with a single crime against humanity entitled “Sexual Slavery and any other form of sexual violence, a crime against humanity punishable under Article 2.g of the Statute.” I am not aware that such a crime in fact, exists under International Humanitarian law. In reality, Count 7 in its current form encapsulates two separate and distinct crimes, namely the crime against humanity of sexual slavery and the crime against humanity of sexual violence. In essence, what the Prosecution has done is to charge the accused persons with the two distinct crimes against humanity in one count thereby offfending the rule against multiplicity, duplicity, uncertainty or vagueness. 7. Both crimes against humanity (sexual slavery and other form of sexual violence) are born out of the provisions of Article 2.g. of the Statute which provides as follows: “Article 2: Crimes Against Humanity. The Special Court shall have the power to prosecute persons who committed the following crimes as part of a widespread or systematic attack against any civilian population: … g. Rape, sexual slavery, enforced prostitution, forced pregnancy and any other form of sexual violence;…” [Emphasis added.] 8. Clearly, Article 2. g. of the Statute encapsulates fĳive distinct categories of sexual offfences (underlined above), each of which is comprised of separate and distinct elements. It is clear that the legislative intent behind the statutory formula “any other form of sexual violence” was to create a separate and specifĳic

573 Archbold on Criminal Pleading, Evidence and Practice, 43rd Edition, Volume I, page 46, paragraph 1–57. See also Jones and Powles on International Criminal Practice, 3rd Edition, paragraphs 8.2.5–8.2.7. interlocutory decisions – trial chamber 783 residuary category of sexual crimes of the same kind as those enumerated in Article 2.g. (i.e. acts of sexual violence other than rape, sexual slavery, enforced prostitution and enforced pregnancy). In this regard my interpretation of the phrase is supported by the decision of Trial Chamber I in the case of the Prosecutor v. Sam Hinga Norman et al.574 There is no doubt that in the unanimous Decision at paragraphs 109-111 the Trial Chamber identifĳied two distinct offfences charged under Count 7, namely the crime against humanity of sexual slavery and the crime against humanity of sexual violence and found at paragraph 161-164 that “there is evidence if believed, upon which a reasonable tribunal of fact could be satisfĳied beyond reasonable doubt, of the guilt of each of the accused Brima, Kamara and Kanu,” of both the crime against humanity of sexual slavery and the crime against humanity of sexual violence. This is precisely the kind of duplicitous and prejudicial situation that could prejudice a fair trial of the accused persons if left uncorrected. It is my considered opinion that in its current form Count 7 is 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. 9. I do not think that Count 7 is incurably defective. In my opinion the defect could be cured by an amendment pursuant to Rule 50 of the Rules that splits the Offfences into two separate counts. In my view, such a procedure would not unduly delay the trial, nor would it prejudice the accused persons since it would not necessitate the introduction of any new evidence of which they are not already aware and would in fact be in the interests of justice.

III. Count 8 Is Redundant

10. As the Indictment currently stands, both counts 8 and 11 of the Indictment charge the accused persons with the crime against humanity of “other inhumane acts.” Whilst fully recognising the Prosecution’s prerogative to determine the choice of charges to be included in an indictment, it is my considered opinion that in this case, Count 11 is sufffĳicient to cover any alleged incidents of “other inhumane acts” envisaged under the Indictment. In my view, all sex-related or gender crimes envisaged in the Indictment are adequately covered by Counts 6, 7 and/or 9 of the Indictment and should not be charged under the general regime of “other inhumane acts.” Later on in this Opinion I shall endeavour to demonstrate why this is so. For ease of reference the relevant part of the Indictment containing Counts 6 to 9 is produced below:

574 Prosecutor v. Sam Hinga Norman et al., Case No. SCSL-04-14-PT, Reasoned Majority decision on Prosecution Motion for a Ruling on the Admissibility of Evidence, 24 May 2005, para. 19. 784 part ii

“... But their acts or omissions in relation to these events, Alex Tamba Brima, Brima Bazzy Kamara and Santigie Borbor Kanu, pursuant to Article 6.1. and or alternatively, Article 6.3. of the Statute, are individually criminally responsible for the crimes alleged below: Count 6: Rape, a crime against humanity, punishable under Article 2.g. of the Statute; And Count 7: Sexual slavery and any other form of sexual violence, a crime against humanity, punishable under Article 2.g. of the Statute; And Count 8: Other Inhumane act, a crime against humanity, punishable under Article 2.i. of the Statute; In addition to or in the Alternative: Count 9: Outrages upon personal dignity, a violation of Article 3 Common to the Geneva Conventions and of Additional Protocol II, punishable under Article 3.e. of the Statute.”

The Historical Perspective 11. It will be recalled that in February 2004 the Prosecution successfully applied for and was granted leave by Trial Chamber I to amend the Consolidated Indictment in this case to add a new Count 8 entitled “the crime against humanity of other inhumane acts” to cater for alleged acts of Forced Marriage.575 The Prosecution further sought to amend the Consolidated Indictment inter alia, by making “corrections and/or modifĳications to the other counts including the expansion of time periods, an additional location for all counts related to sexual violence crimes, and the change of spellings of certain place names.”576 In granting its leave, Trial Chamber I observed– “In the present motion, the Prosecution is seeking our leave to amend the already existing consolidated indictment on which the proceedings are now based, in order to add one more count, and one count only, based on Forced Marriage. The question to be addressed in these circumstances is whether this additional count or offfence as the case is, is new in terms of its being a complete novelty in the arsenal of all the counts that constitute the entire consolidated indictment. Our immediate reflection on this issue that we have raised is that the count related to forced marriage which the prosecution is seeking our leave to add to the consolidated indictment is as much sexual, indeed, a gender offfence as those that were included in the initial individual indictments and that feature in the current consolidated indictment on which this application to amend is based. We would like to say here that Forced Marriage is in fact what we would like to classify as a ‘kindred offfence’ to those that exist in the indictment in the view of the

575 Prosecutor v. Alex Tamba Brima et al., Case No. SCSL-04-16-PT, Trial Chamber Decision on Prosecution Request for Leave to Amend the Indictment, 6 May 2004, para. 58. 576 Ibid., para. 8. interlocutory decisions – trial chamber 785

commonality of the ingredients needed to prove offfences of this nature....”577 [emphasis added] 12. From the above quotation, it is clear that in their assessment, Trial Chamber I classifĳied the phenomenon of “Forced Marriage” within the context of the Sierra Leonean conflict as a sexual or gender crime akin to rape, sexual slavery or sexual violence. The Prosecution in fact went ahead and introduced the present Count 8 and related amendments in the Indictment in a bid to cover acts of “forced marriage.” 13. Notwithstanding the above, in a subsequent decision in which the Prosecution sought leave to introduce new evidence of ‘Forced Marriages’ under the crime against humanity of “other inhumane acts” (rather than as evidence of a sexual or gender crime),578 Trial Chamber I considered and rejected the proposition that sexual offfences including ‘forced marriages,’ do fall in the broad category of “other inhumane acts.”579 Trial Chamber I found inter alia, that– “... the particulars embodied in the Consolidated Indictment in respect of Counts 3 and 4 cannot be validly interpreted to be of an inclusive nature and as not excluding the broad range of unlawful acts which can lead to serious physical and mental harm, especially having regard to the formula “and any other form of sexual violence” in Article 2.g. [of the Statute] creating a separate specifĳic residual category of sexual violence, of the same kind as rape, sexual slavery, enforced prostitution and forced pregnancy. In light of the separate and distinct residual category of sexual offfences under Article 2.g., it is impermissible to allege acts of sexual violence (other than rape, sexual slavery, enforced prostitution and forced pregnancy) under Article 2.i. since “other inhumane acts,” even if residual, must logically be restrictively interpreted as covering only those acts of a non-sexual nature amounting to an afffront to human dignity. The clear legislative intent behind the statutory formula “any other form of sexual violence” in Article 2.g. is the creation of a category of offfences of sexual violence of a character that do not amount to any of the earlier enumerated sexual crimes, and that to permit such other forms of sexual violence to be charged as “other inhumane acts” offfends against the rule against multiplicity and uncertainty….”580 14. I am strongly persuaded by the above decisions of Trial Chamber I in holding that view that the acts of “forced marriage” that occurred within the context of the Sierra Leonean conflict, are in fact a form of sexual violence pursuant to

577 Ibid., paras. 50–51. 578 In an earlier motion, Trial Chamber I had denied a Prosecution leave to amend the indictment to include sex crimes. In the absence of a count embodying crimes of a sexual nature, the Prosecution sought to lead evidence of “forced marriages” under “other inhumane acts.” 579 Prosecutor v. Sam Hinga Norman et. al, Case No. SCSL-04-14-PT, Trial Chamber, Reasoned Majority Decision on Prosecution Motion for a Ruling on the Admissibility of Evidence, 24 May 2005. 580 Ibid., para. 19 (iii). 786 part ii

Article 2.g. of the Statute and could equally qualify as a form of sexual slavery pursuant to Article 2.g. of the Statute. In an Indictment such as the present one, that charges specifĳic sexual crimes including rape, sexual slavery and other forms of sexual violence pursuant to Article 2.g. of the Statute, I am not persuaded that acts of “forced marriage” which are clearly sexual in nature, can be properly charged under the general regime of “other inhumane acts” pursuant to Article 2.i. of the Statute. It is my considered opinion that given the evidence on record, all alleged sex-related acts covered by the Indictment (including “forced marriage”) can and should be properly accommodated under Counts 6, 7, and 9 of the Indictment. In my opinion, any alleged acts or offfences that are of a residual, non-sexual nature and that could arguably be contained under the general regime of “other inhumane acts” do not belong under the part of the Indictment entitled “COUNTS 6-9: SEXUAL VIOLENCE.” They could more appropriately be dealt with either under Count 11 or any other counts in the Indictment that address violence to life, health and physical or mental well-being of victims. Accordingly, I fĳind that Count 8 is redundant and would recommend that it be struck out in favour of retaining only one count of “other inhumane acts” under Count 11. This, in my view, would be in the interest of justice and of judicial economy.

Done at Freetown, Sierra Leone, this 31st day of March 2006. TRIAL CHAMBER II

Before: Justice Richard Lussick, Presiding Judge Justice Teresa Doherty Justice Julia Sebutinde Registrar: Lovemore Munlo Date: 3 April 2006 PROSECUTOR Against Alex Tamba Brima Brima Bazzy Kamara Santigie Borbor Kanu (Case No.SCSL-04-16-T)

DECISION ON PRINCIPAL DEFENDER’S MOTION FOR A REVIEW OF THE REGISTRAR’S DECISION TO INSTALL SURVEILLANCE CAMERAS IN THE DETENTION FACILITY OF THE SPECIAL COURT FOR SIERRA LEONE

Office of the Prosecutor: Defence Counsel for Alex Tamba Brima: Jim Johnson Kojo Graham Karim Agha Glenna Thompson James Hodes Defence Counsel for Brima Bazzy Kamara: Andrew Daniels Mohamed Pa-Momo Fofanah Defence Counsel for Santigie Borbor Kanu: Geert-Jan Alexander Knoops Carry Knoops Abibola E. Manly-Spain 788 part ii

TRIAL CHAMBER II (“Trial Chamber”) of the Special Court for Sierra Leone (“Special Court”), composed of Justice Richard Lussick, presiding, Justice Teresa Doherty and Justice Julia Sebutinde; SEISED of the Principal Defender’s Motion for a Review of the Registrar’s Decision to Install Surveillance Cameras in the Detention Facility of the Special Court for Sierra Leone, fĳiled on 31 January 2006; (“Motion”); NOTING the Interim Registrar’s Response to Principal Defender’s Motion for a Review of the Registrar’s Decision to Install Surveillance Cameras in the Detention Facility of the Special Court for Sierra Leone, fĳiled on 8 February 2006; NOTING the Reply to the Interim Registrar’s Response to the Principal Defender’s Motion for a Review of the Registrar’s Decision to Install Surveillance Cameras in the Detention Facility of the Special Court for Sierra Leone, fĳiled on 14 February 2006; RECALLING that Rule 73(A) of the Rules of Procedure and Evidence (“Rules”) provides as follows: “Subject to Rule 72, either party may move before the Designated Judge or a Trial Chamber for appropriate ruling or relief after the initial appearance of the accused. The Designated Judge or the Trial Chamber, or a Judge designated by the Trial Chamber from among its members, shall rule on such motions based solely on the written submissions of the parties, unless it is decided to hear the parties in open Court”; RECALLING ALSO that under Rule 2(A) of the Rules, “Party” is defĳined as: “The Prosecutor or the Defence”; and “Defence” is defĳined as: “The Accused and/or the Accused’s counsel”; CONSIDERING that the Principal Defender is neither the Accused nor Accused’s Counsel; FINDING THEREFORE that the Principal Defender has no locus standi; HEREBY DISMISSES THE MOTION. Done at Freetown this 3rd day of April, 2006. TRIAL CHAMBER II

Before: Justice Richard Lussick, Presiding Judge Justice Teresa Doherty Justice Julia Sebutinde Registrar: Lovemore G. Munlo, SC Date: 26 April 2006 PROSECUTOR Against Alex Tamba Brima Brima Bazzy Kamara Santigie Borbor Kanu (Case No.SCSL-04-16-T)

ORDER FOR DISCLOSURE PERSUANT TO RULE 73ter AND THE START OF THE DEFENCE CASE

TRIAL CHAMBER II of the Special Court for Sierra Leone, composed of Justice Richard Lussick, presiding, Justice Teresa Doherty and Justice Julia Sebutinde; NOTING the Prosecution’s Notice of Orders to be Sought Pursuant to Rule 73ter, fĳiled on 6 April 2006 and the Defence written response thereto, fĳiled on 25 April 2006; HAVING heard the oral submissions of the Parties; CONSIDERING Article 17(4)(b) and (c) of the Statute and Rule 73ter of the Rules of Procedure and Evidence; ORDERS 1. that the Defence shall fĳile the following materials on or before 10 May 2006: (a) A list of witnesses which each Defence Team intends to call, including: (i) the order in which the Defence Teams intend to call the witnesses; (ii) the name and/or nickname, date of birth (if known), and occupation of each witness; (iii) the language spoken by the witness; (iv) a summary of the facts on which each witness will testify; (v) the points in the Indictment as to which each witness will testify; (vi) the estimated length of time required for each witness; (vii) an indication of whether the witness will testify in person or pursuant to Rule 92bis; (viii) an indication of whether each of the Accused intends to testify pursuant to Rule 85(C); (ix) an indication of which witnesses are common witnesses. (b) A list of expert witnesses with an indication of when their report will be disclosed to the Prosecution; (c) A list of exhibits the Defence intends to tender, stating where possible whether or not the Prosecutor has any objections as to authenticity; 2. that a status conference shall be held on 17 May 2006 in order to consider the compliance by the Defence with the above orders; 3. that the Defence Case, as ordered at the earlier Status Conference on 4 April 2006, will open on 5 June 2006, subject to any further Order by the Trial Chamber. Done at Freetown, Sierra Leone, this 26th April 2006. TRIAL CHAMBER II

Before: Justice Richard Lussick, Presiding Judge Justice Teresa Doherty Justice Julia Sebutinde Registrar: Lovemore G. Munlo, SC Date: 4 May 2006 PROSECUTOR Against Alex Tamba Brima Brima Bazzy Kamara Santigie Borbor Kanu (Case No.SCSL-04-16-T)

DECISION ON JOINT DEFENCE REQUEST FOR LEAVE TO APPEAL FROM DECISION ON DEFENCE MOTIONS FOR JUDGEMENT OF ACQUITTAL PURSUANT TO RULE 98 OF 31 MARCH 2006

Office of the Prosecutor: Defence Counsel for Alex Tamba Brima: Jim Johnson Kojo Graham Karim Agha Glenna Thompson Defence Counsel for Brima Bazzy Kamara: Andrew Daniels Mohamed Pa-Momo Fofanah Defence Counsel for Santigie Borbor Kanu: Geert-Jan Alexander Knoops Carry Knoops Abibola E. Manly-Spain 792 part ii

TRIAL CHAMBER II (“Trial Chamber”) of the Special Court for Sierra Leone (“Special Court”), composed of Justice Richard Lussick, presiding, Justice Teresa Doherty and Justice Julia Sebutinde; SEISED of the Joint Defence Request for Leave to Appeal from Decision on Defence Motions for Judgement of Acquittal Pursuant to Rule 98 of 31 March 2006 (“Motion”), fĳiled on 3 April 2006, in which the Joint Defence seeks leave to appeal from the Trial Chamber’s Decision on Defence Motions for Judgement of Acquittal, of 31 March 2006; NOTING the Prosecution Response to ‘Joint Defence Request for Leave to Appeal from Decision on Defence Motions for Judgement of Acquittal Pursuant to Rule 98 of 31 March 2006’ (“Response”), fĳiled on 25 April 2006, in which the Prosecution requests that the Trial Chamber dismiss the Joint Defence Motion; NOTING the Joint Defence Reply to Prosecution Response to Joint Defence Request for Leave to Appeal from Decision on Defence Motions for Judgement of Acquittal Pursuant to Rule 98 of 31 March 2006 (“Reply”), fĳiled on 1 May 2006; RECALLING the Decision on Defence Motions for Judgement of Acquittal Pursuant to Rule 98, dated 31 March 2006;1 NOTING that Rule 73(B) of the Rules of Procedure and Evidence (“Rules”) provides that Decisions rendered on such motions are without interlocutory appeal. However, in exceptional circumstances and to avoid irreparable prejudice to a party, the Trial Chamber may give leave to appeal. Such leave should be sought within 3 days of the decision and shall not operate as a stay of proceedings unless the Trial Chamber so orders; NOTING that Rule 73(B) of the Rules does not confer a general right of appeal, but that leave to appeal may be granted by the Trial Chamber in cases where the conjunctive conditions of exceptional circumstances and irreparable prejudice to a party are satisfĳied; ADOPTING the restrictive test applied by Trial Chamber I that: “[T]he overriding legal consideration in respect of an application for leave to fĳile an interlocutory appeal is that the applicant’s case must reach a level of exceptional circumstances and irreparable prejudice. Nothing short of that will sufffĳice having regard to the restrictive nature of Rule 73(B) of the Rules and the rationale that criminal trials must not be heavily encumbered and consequently unduly delayed by interlocutory appeals”;2

1 Prosecutor v. Alex Tamba Brima et al., Case No. SCSL-04-16-T. 2 Prosecutor v. Sesay et al., SCSL-2004-15-PT, Decision on the Prosecutor’s Application for Leave to File an Interlocutory Appeal Against the Decision on the Prosecution Motion for Joinder, 13 February 2004. interlocutory decisions – trial chamber 793

CONSIDERING that the Appeals Chamber has ruled that “In this Court, the procedural assumption is that trials will continue to their conclusion without delay or diversion caused by interlocutory appeals on procedural matters, and that any errors which afffect the fĳinal judgment will be corrected in due course by this Chamber on appeal”;3 THE TRIAL CHAMBER FINDS: (i) that the decision in Prosecutor v. Blagojevic et al.4 relied upon by the Defence applies to cases where a judgement of acquittal has been entered, and is therefore not pertinent to the present case; (ii) that, after careful consideration of the other matters raised by the Defence, the criteria of exceptional circumstances and irreparable prejudice prescribed by Rule 73(B) of the Rules have not been met; AND DISMISSES THE MOTION. Done at Freetown, Sierra Leone, this 4th day of May 2006.

3 The Prosecutor v. Norman et al., SCSL-2004-14-AR73, Decision on Amendment of the Consolidated Indictment, 16 May 2005, para. 43. 4 Prosecutor v. Blagojevic and Jokic, IT-02-60-T, Decision on Request for Certifĳication of Interlocutory Appeal of the Trial Chamber’s Judgement on Motions for Acquittal Pursuant to Rule 98Bis, 23 April 2004, paras. 11, 13.

TRIAL CHAMBER II

Before: Justice Richard Lussick, Presiding Judge Justice Teresa Doherty Justice Julia Sebutinde Registrar: Lovemore G. Munlo, SC Date: 9 May 2006 PROSECUTOR Against Alex Tamba Brima Brima Bazzy Kamara Santigie Borbor Kanu (Case No.SCSL-04-16-T)

DECISION ON JOINT DEFENCE APPLICATION FOR PROTECTIVE MEASURES FOR DEFENCE WITNESSES

TRIAL CHAMBER II (“Trial Chamber”) of the Special Court for Sierra Leone (“Special Court”), composed of Justice Richard Lussick, presiding, Justice Teresa Doherty and Justice Julia Sebutinde; SEISED of the Joint Defence Application for Protective Measures for Defence Witnesses, fĳiled on 25 April 2006 and Annexes to Motion Entitled “Joint Defence Application for Protective Measures for Defence Witnesses,” fĳiled on 28 April 2006 (“the Motion”); NOTING the Prosecution Response to Joint Defence Application for Protective Measures for Defence Witnesses, fĳiled on 1 May 2006 (“the Response”); NOTING the Joint Defence Reply to Prosecution Response to Joint Defence Application for Protective Measures for Defence Witnesses, fĳiled on 8 May 2006 (“the Reply”); COGNISANT of the provisions of the Statute of the Special Court for Sierra Leone (“the Statute”) and in particular Articles 16(4) and 17(2) and (4) thereof and Rules 53, 54, 69 and 75 of the Rules of Procedure and Evidence of the Special Court (“the Rules”), concerning the protection of witnesses and victims as well as the rights of the Accused; SATISFIED that there is a reasonable apprehension of risk or danger to witnesses expressed in the supporting material submitted by the Defence and considering the entire security situation in Sierra Leone and that protective measures can be ordered on the basis of a current security situation even where the existence of threats or fears as regards specifĳic witnesses has not been demonstrated;1 CONSIDERING that the Trial Chamber is concerned for the safety, protection and welfare of witnesses and victims in these proceedings and is obligated under Articles 16(4) and 17(2) of the Statute and Rule 75(A) of the Rules, to take all appropriate protective measures to safeguard their privacy and protection; MINDFUL that under Rule 75(A) of the Rules, the Trial Chamber may “order appropriate protective measures to safeguard the privacy and protection of victims and witnesses, provided that the measures are consistent with the rights of the Accused”; CONSIDERING FURTHER that the jurisprudence relating to the protective measures sought by the Defence has been settled in previous proceedings before this

1 See Prosecutor v. Muvunyi and Others, ICTR-2000-55-1, Decision on the Prosecutor’s Motion for Orders for Protective Measures for Victims and Witnesses to Crimes Alleged in the Indictment, 25 April 2001, paras. 21, 22. interlocutory decisions – trial chamber 797

Court and that the measures sought are consistent with the previous practice of this Court;2 HEREBY GRANTS the Motion in part and ORDERS as follows: The following protective measures shall apply to witnesses listed in Annex A of the Annexes to the Motion who are not covered by any existing order for protective measures and who have not waived their right to protection in these proceedings; namely – (a) That all protected witness be screened from the public when testifying; (b) That the names and any other identifying information concerning all protected witnesses be sealed by the Registry and are not included in any existing or future records of the Court; (c) That the names of protected witnesses and any other identifying data or information on fĳile with the Registry, or any other information which could reveal the identity of such witnesses, shall not under any circumstances be disclosed to the public or the media and that this order shall remain in efffect after the termination of the proceedings in this case; (d) That the Defence may withhold identifying data of a witness for whom the Defence is seeking protection as set forth in paragraph 13 of the Motion or any other information which could reveal the identity of such witness until 21 days before the witness is due to testify at trial; (e) That there shall be no photography, audio or video recording, or sketching of protected witnesses without leave of the Trial Chamber; (f) That the names and any other identifying information concerning all protected witnesses shall be communicated only to the Victims and Witnesses Unit personnel by the Registry or the Defence in accordance with established procedure and only in order to implement protective measures for these individuals;

2 Prosecutor v. Brima, SCSL-03-06-PT, Decision on the Prosecution’s Motion for Immediate Protective Measures for Witnesses and Victims and for Non-public Disclosure, 23 May 2003; Prosecutor v. Kamara, SCSL-03-10-PT, Decision on the Prosecution’s Motion for Immediate Protective Measures for Witnesses and Victims and for Non-public Disclosure, 23 October 2003; Prosecutor v. Kanu, SCSL-2003-13-PT, Decision on the Prosecutor’s Motion for Immediate Protective Measures for Witnesses and Victims and for Non-public Disclosure, 24 November 2003; Prosecution v. Sesay et al., Decision on Prosecution Motion for Modifĳications of Protective Measures for Witnesses, 5 July 2004; Prosecutor v. Norman et al., SCSL-04-14-T, Ruling on Motion for Modifĳication of Protective Measures for Witnesses, 18 November 2004; Prosecutor v. Brima et al., Decision on Confĳidential Prosecution Motion for Protective Measures for Witness TF1-272, 11 May 2005; Prosecutor v. Sesay et al. and Brima et al., Decision on the Urgent and Confĳidential Application to vary Protective Measures Regarding Witnesses TF1-104 and TF1-081, 11 May 2005. 798 part ii

(g) That the Offfĳice of the Prosecutor and the Registry shall not reveal to anyone outside the Victims and Witness Unit the names, addresses or other identifying information concerning witnesses and their families; (h) That the Defence may designate a pseudonym for each protected witness that will be used for disclosure and whenever reference is made to such witness in court proceedings, communications or discussions between the parties; (i) That the Prosecution shall not directly or indirectly contact any protected Defence witness except with the written consent of the Defence or leave of court. Done at Freetown, Sierra Leone, this 9th day of May 2006. TRIAL CHAMBER II

Before: Justice Richard Lussick, Presiding Judge Justice Teresa Doherty Justice Julia Sebutinde Registrar: Lovemore G. Munlo, SC Date: 17 May 2006 PROSECUTOR Against Alex Tamba Brima Brima Bazzy Kamara Santigie Borbor Kanu (Case No.SCSL-04-16-T)

DECISION ON CONFIDENTIAL JOINT DEFENCE MOTION AS TO INABILITY TO PROVIDE DETAILS OF CERTAIN WITNESSES ON 10 MAY 2006 AND ANTICIPATION SUBPOENAS AD TESTIFICANDUM

Office of the Prosecutor: Defence Counsel for Alex Tamba Brima: Christopher Staker Kojo Graham Karim Agha Glenna Thompson Defence Counsel for Brima Bazzy Kamara: Andrew Daniels Mohamed Pa-Momo Fofanah Defence Counsel for Santigie Borbor Kanu: Geert-Jan Alexander Knoops Carry J. Knoops A.E. Manly-Spain 800 part ii

TRIAL CHAMBER II (“Trial Chamber”) of the Special Court for Sierra Leone (“Special Court”), composed of Justice Richard Lussick, presiding, Justice Teresa Doherty and Justice Julia Sebutinde; SEISED of the Confĳidential Joint Defence Motion as to Inability to Provide Details of Certain Witnesses on 10 May 2006 and Anticipation Subpoenas Ad Testifĳicandum, fĳiled on 9 May 2006 (“Motion”), in which the Joint Defence seeks leave to extend the deadline for presentation of its fĳinal witness list until the beginning of the trial session to be held in September 2006, and anticipates that subpoenas ad testifĳicandum may have to be issued; NOTING the Confĳidential Prosecution Response to Joint Defence Motion Dated 9 May 2006, fĳiled on 15 May 2006 (“Response”), in which the Prosecution questions the “Confĳidential” fĳiling of the Motion and Reply and submits that the current witness list should be the defĳinitive witness list and that the Defence should be required to show good cause for the addition of further witnesses, and that the Defence should be ordered to expedite the fĳiling of any motions for subpoenas; NOTING the Confĳidential Joint Defence Reply to Prosecution Response to Defence Motion as to the Inability to Provide Details of Certain Witnesses on 10 May 2006 and Anticipation Subpoenas Ad Testifĳicandum, fĳiled on 16 May 2006 (“Reply”); RECALLING the Trial Chamber’s Order for Disclosure Pursuant to Rule 73ter and the Start of the Defence Case (“Order”), dated 26 April 2006; RECALLING ALSO the Confĳidential Joint Defence Disclosure Pursuant to Trial Chamber Order of 26 April 2006 containing a provisional witness list; CONSIDERING the difffĳiculties encountered by the Defence teams in accessing witnesses in certain districts of Sierra Leone and in locating witnesses in Freetown who were initially willing to testify, which may result in changes having to be made to the witness list already fĳiled; MINDFUL of the rights of the Accused, and in particular of the provisions of Article 17(4)(b) of the Statute of the Special Court for Sierra Leone (“Statute”) by virtue of which the Accused have the right “to have adequate time and facilities for the preparation of his or her defence”; NOTING that although it may be necessary for the Defence to apply in due course for the issue of subpoenas, no such necessity has been established at this stage; CONSIDERING that the Joint Defence request to vary the Order by allowing the Defence to fĳile its fĳinal witness list by the beginning of the trial session to be held in September 2006 is reasonable, given the particular circumstances; interlocutory decisions – trial chamber 801

SATISFIED that an order to that efffect will be in the interests of justice and will provide the Defence with adequate time to properly comply with the Order; SATISFIED ALSO that the Motion and Reply have been properly fĳiled as “Confĳidential”; HEREBY GRANTS THE MOTION and ORDERS: (1) that the Defence fĳile their fĳinal witness list pursuant to the Order on or before Monday, 21 August 2006; (2) that the Motion and Reply remain confĳidential. Done at Freetown, Sierra Leone, this 17th day of May 2006.

TRIAL CHAMBER II

Before: Justice Richard Lussick, Presiding Judge Justice Teresa Doherty Justice Julia Sebutinde Registrar: Lovemore G. Munlo, SC Date: 26 July 2006 PROSECUTOR Against Alex Tamba Brima Brima Bazzy Kamara Santigie Borbor Kanu (Case No.SCSL-04-16-T)

DECISION ON PROSECUTION MOTION FOR RELIEF IN RESPECT OF VIOLATIONS OF RULE 67

Office of the Prosecutor: Defence Counsel for Alex Tamba Brima: Christopher Staker Kojo Graham Karim Agha Glenna Thompson Melissa Pack Charles Hardaway Defence Counsel for Brima Bazzy Kamara: Andrew Daniels Mohamed Pa-Momo Fofanah Defence Counsel for Santigie Borbor Kanu: Geert-Jan Alexander Knoops Carry Knoops Abibola E. Manly-Spain 804 part ii

I. Introducton

1. The testimony of the fĳirst Defence witness, the First Accused Brima, was completed on 6 July 2006. During that testimony, the First Accused raised the efence of alibi in respect of certain times and places named in the Indictment in relation to himself and the Third Accused Kanu. The Prosecution claims that prior to the witness’s testimony there had been no notifĳication, formal or otherwise, of these alibi defences as required by Rule 67(A)(ii)(a) of the Rules.

VII. Preliminary Matter

1. On 18 July 2006 the Prosecution fĳiled a document entitled “Supplement to Prosecution Reply to Defence Responses to Prosecution Motion for Relief in Respect of Violations of Rule 67” (“Supplement”). Annex A and Annex B of the Supplement contain some authorities the Prosecution omitted to include in its Reply. Annex C of the Supplement is a copy of recent email correspondence between the Prosecution and the Defence for the Second Accused Kamara which is said to indicate that the Second Accused is relying on Rule 67(B). The Prosecution submits that this is a further reason why the order it seeks should also apply to the Second Accused. interlocutory decisions – trial chamber 805

2. The Prosecution seeks leave, if necessary, for the late fĳiling. We hold that such leave is not necessary. The last Response by the Defence – that of the First Accused Brima – was fĳiled on 13 July 2006, so that the last day for the Prosecution to fĳile its Reply was 18 July 2006. Thus the Supplement was not fĳiled out of time. We therefore accept Annex A and Annex B of the Supplement. 3. However, we reject Annex C. We have stated in previous decisions1 that it is not appropriate for a party to raise a new argument in a Reply, as the opposite party – having fĳiled its Response – has no opportunity to answer a new submission. We accordingly reject Annex C and the submission made by the Prosecution in respect of it.

III. Submissions of the Parties

Prosecution 4. The Prosecution submits that although the First Accused Brima fĳiled a Pre- Trial Brief pleading alibi for the period February to July 1998, during which he claimed to be in the custody of the RUF, the brief did not specify where he claimed to have been during this period, nor were any witnesses or other evidence speci- fĳied. Further, the Pre-Trial Brief did not plead an alibi for the period July to September 1998, for which the First Accused has now claimed an alibi in his oral testimony. 5. With respect to the Third Accused Kanu, the Prosecution submits that his Pre- Trial Brief offfered a general alibi that he was not in any of the villages mentioned in the Indictment, but failed to specify where he had been, the names and addresses of any witnesses, or any other evidence relied upon to establish an alibi. Also, although the Pre-Trial Brief did not mention an alibi for the period of the 1999 Freetown invasion, the First Accused has now claimed an alibi for the Third Accused in his oral testimony. 6. Consequently, the Prosecution submits that the First Accused is in breach of Rule 67(A)(ii) of the Rules and, if the Third Accused intends to rely on the evidence of the First Accused for an alibi, then so is the Third Accused.

1 Prosecutor v. Brima et al., SCSL-04-16-T, Decision on Joint Defence Motion on Disclosure of All Original Witness Statements, Interview Notes and Investigators’ Notes Pursuant to Rules 66 and/or 68, dated 4 May 2005, para. 20; Decision on Objection to Question Put by Defence in Cross- Examination of Witness TFI-227, dated 15 June 2005, para. 28. 806 part ii

7. The Prosecution seeks an order that it be given formal notifĳication in accordance with Rule 67(A)(ii)(a) of the Rules of: i. any alibi defence(s) the Defence intend to advance; and ii. the place or places at which the Accused claim to have been present at the time of the alleged crimes; and iii. the names and addresses of all witnesses upon whom the Accused intend to rely to establish any alibi; and iv. any other evidence upon which the Accused intend to rely to establish any alibi. 8. The Prosecution also seeks an order that the Defence for all three Accused, if relying on alibi evidence, do not call witnesses to testify in that regard until the Prosecution has been given the required notice and has had sufffĳicient time to fully investigate the alibi witnesses and evidence.

Defence Kanu 9. The Kanu Defence submits that the Prosecution arguments are frivolous in that it cannot reasonably be held to be in breach of any of the Rules based merely on an assumption of the Prosecution, or on anticipated Defence conduct. Alternatively, the Kanu Defence states that it does not intend to rely on the particular portions of the evidence of the First Accused relating to Kanu’s whereabouts at the time of the January 1999 Freetown invasion. The Kanu Defence asks the Trial Chamber to dismiss the Motion insofar as it alleges that the Accused Kanu is in breach of Rule 67.

Brima 10. The Brima Defence submits that it did not put forward the defence of alibi but merely asserted that Brima (and in some places the Third Accused) was not in a position to commit the crimes charged. This simply amounts to raising reasonable doubt in the evidence led against Brima. Further, it is submitted that Rule 67(A)(ii) clearly states that any information regarding alibi should be provided “as early as practicably possible” and that the Defence has been unable to comply with this because of problems gathering evidence and fĳinding witnesses. Alternatively, the Brima Defence relies on Rule 67(B).

Prosecution Reply 11. As regards the First Accused Brima, the Prosecution submits that in parts of his testimony he claimed that he was somewhere other than where the Prosecution interlocutory decisions – trial chamber 807 alleged him to be at the material time, and thus Rule 67(A)(ii) is clearly applicable. Further, the claim of the Brima Defence that Rule 67(A)(ii) only requires the notice to be given “as early as practicably possible” ignores the wording of the Rule that continues: “and in any event prior to the commencement of the trial.” 12. The Prosecution points out that the Third Accused Kanu has not expressly stated that he will not seek to raise any alibi defence, or rely on any alibi evidence apart from that referred to by the Prosecution. In the absence of any such express statement, the Prosecution maintains its request for the orders sought. 13. Although the second Accused Kamara has not responded to the Motion, the Prosecution submits that the order it seeks should apply to the Defence for all three Accused.

IV. Deliberations

The Applicable Law 14. The relevant provisions of Rule 67(A) and (B) state: (A) As early as reasonably practicable and in any event prior to the commencement of the trial: (ii) The defence shall notify the Prosecutor of its intent to enter: (a) The defence of alibi; in which case the notifĳication 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; (B) Failure of the defence to provide such notice under this Rule shall not limit the right of the accused to rely on the above defences. 15. As was observed by the ICTR Appeals Chamber, Rule 67(A)(ii) relates to the reciprocal disclosure of evidence at the pre-trial stage of the case and places upon the Defence the obligation to notify the Prosecution of its intent to enter a defence of alibi and to specify the evidence upon which it intends to rely to establish the alibi. This allows the Prosecution to organise its evidence and to prepare its case prior to the commencement of the trial on the merits.2 16. The notifĳication required by Rule 67(A)(ii) does not oblige the defence to produce the probative evidence to be used to establish the whereabouts of the

2 Rutaganda v. The Prosecutor, ICTR-96-3-A, Judgement, 26 May 2003, para. 241. (Rule 67(A)(ii) of the ICTR Rules corresponds with Rule 67(A)(ii) of the Rules.) 808 part ii accused at the time of commission of the offfence. The requirements of the Rule are satisfĳied when the defence has notifĳied the prosecution of the required particulars of the alibi, without necessarily producing the evidence.3 Moreover, Rule 67(A)(ii) does not require the defence to notify the Trial Chamber, in addition to the prosecutor, of its intent to enter an alibi.4 17. Nevertheless, the efffect of Rule 67(B) is that failure by the defence to comply with Rule 67(A)(ii) does not preclude the defence from relying on the defence of alibi. We agree with the interpretation of the provision as stated by the ICTR Appeals Chamber that: “To ensure a good administration of justice and efffĳi- cient judicial proceedings, any notice of alibi should be tendered in a timely manner, ideally before the commencement of the trial. However, were the defence to fail in this regard, Rule 67(B) provides that the defence may still rely on evidence in support of an alibi at trial. Consequently, the obligations laid down by Rule 67(A)(ii) must be read in conjunction with the caveat provided for by Rule 67(B).”5 18. However, if 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.6 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.7 19. Taking the applicable law into account, we turn now to consider whether any of the three Accused is in breach of Rule 67(A)(ii).

The First Accused Brima 20. The obligations imposed by Rule 67(A)(ii) are clear and unambiguous. It is not open to the Brima Defence to claim that it was only obliged to give notice of an alibi defence “as early as practicably possible,” since the Rule clearly states that in any event such notifĳication must be prior to the commencement of the trial.

3 Ibid., para. 242. 4 Ibid., para. 244. 5 Ibid., para. 243. 6 Prosecutor v. Bizimungu et al., ICTR-99-50-T, Decision on Bicamumpaka’s Notice of Alibi, 7 July 2005, para. 5. 7 Prosecutor v. Kayishema and Ruzindana, Judgement, Case No. ICTR-95-1-T, 21 May 1999, para. 237. interlocutory decisions – trial chamber 809

21. The Brima Defence claims that it did not put forward the defence of alibi. In paragraph 11 of the Defence Pre-Trial Brief for Tamba Alex Brima, fĳiled on 17 February 2005, the Brima Defence submitted that “Mr. Brima was held in custody by the RUF between February and July 1998, Accordingly, it is submitted that he had an alibi for the period relating to the allegations.” This notifĳication did not, however, comply with Rule 67(A)(ii) in that the details required by the Rule were not provided. 22. Further, in his sworn evidence, the First Accused testifĳied at various passages to having been at a diffferent place to that alleged.8 In that respect, we accept the Prosecution’s submission that no notifĳication as required by Rule 67(A)(ii) has ever been provided. 23. We therefore do not accept the submission by the First Accused that he did not put forward the defence of alibi. He claimed that he was merely asserting that he was not in a position to commit the crimes charged. However, he went much further than merely putting the Prosecution to proof. In both his pre-trial brief and his sworn evidence he claimed to have been present at other places at the time of the alleged crimes. We therefore fĳind that he has put forward alibi defences, but has not provided the notice required by Rule 67(A)(ii) and is therefore in breach of that Rule.

The Second Accused Kamara 24. The Prosecution does not allege that the Second Accused has put forward an alibi defence. Consequently, the Second Accused cannot be in breach of Rule 67(A)(ii).

The Third Accused Kanu 25. The Prosecution claims that the Third Accused, in his Pre-Trial Brief, offfered a “general alibi that he was not in any of the villages mentioned within the indictment.” This is not correct. The Third Accused merely denied being in the said villages at the relevant times.9 He did not allege that he had been at some other places. He was therefore simply putting the Prosecution to proof and was not offfering an alibi defence. 26. Although the First Accused testifĳied that the Third Accused was present in another place during the January 1999 Freetown invasion, the Defence for the

8 Transcripts, 8 June 2006, page 41, 12 June 2006, pages 7, 17, 42, 50, 15 June 2006, pages 27–31. 9 Kanu Defence Pre-Trial Brief and Notifĳication of Defences Pursuant to Rule 67(A)(ii)(a) and (b), fĳiled on 22 March 2004. para. 28. 810 part ii

Third Accused has stated that it does not intend to rely on that particular evidence. 27. We therefore fĳind that the Prosecution has failed to show that the Third Accused is in breach of Rule 67(A)(ii).

FOR THE ABOVE REASONS, THE TRIAL CHAMBER GRANTS THE MOTION IN PART AND ORDERS: 1) That the Defence for the First Accused Brima make the necessary disclosures in accordance with Rule 67(A)(ii) by 4 pm Monday, 31 July 2006. 2) That the Prosecution has leave to apply for an appropriate order should the Defence call an alibi witness before the Prosecution has had reasonable time to investigate the alibi. 3) That the orders sought against the Second Accused Kamara and Third Accused Kanu are denied Done at Freetown, Sierra Leone, this 26th day of July, 2006. TRIAL CHAMBER II

Before: Justice Richard Lussick, Presiding Judge Justice Teresa Doherty Justice Julia Sebutinde Registrar: Lovemore G. Munlo, SC Date: 13 September 2006 PROSECUTOR Against Alex Tamba Brima Brima Bazzy Kamara Santigie Borbor Kanu (Case No.SCSL-04-16-T)

DECISION ON JOINT DEFENCE APPLICATION FOR PROTECTIVE MEASURES FOR DEFENCE WITNESSES APPEARING FROM 4 SEPTEMBER 2006 ONWARDS

Office of the Prosecutor: Defence Counsel for Alex Tamba Brima: James C. Johnson Kojo Graham Karim Agha Glenna Thompson Charles Hardaway Defence Counsel for Brima Bazzy Kamara: Andrew Daniels Mohamed Pa-Momo Fofanah Defence Counsel for Santigie Borbor Kanu: Geert-Jan Alexander Knoops Carry Knoops Abibola E. Manly-Spain 812 part ii

TRIAL CHAMBER II (“Trial Chamber”) of the Special Court for Sierra Leone (“Special Court”), composed of Justice Richard Lussick, Presiding Judge, Justice Teresa Doherty and Justice Julia Sebutinde; SEISED of the Urgent Joint Defence Application for Protective Measures for Defence Witnesses Appearing from 4 September 2006 Onwards, fĳiled on 21 August 2006 (“Motion”), in which the Defence seeks that protective measures granted by the Trial Chamber in its Decision on the Joint Defence Application for Protective Measures for Defence Witnesses dated 9 May 2006 (“Protective Measures Decision”) be equally applied to witnesses mentioned on the witness lists fĳiled by the Defence on 21 August 2006.1 NOTING the Prosecution Response to Joint Defence Application for Protective Measures for Defence Witnesses Appearing from 4 September 2006 Onwards, fĳiled on 31 August 2006 (“Response”), in which the Prosecution submits that the Defence failed to provide evidence of a specifĳic threat to the witnesses’ security and urges the Trial Chamber to revise the 21 day time limit for rolling disclosure of the identifying data of the witnesses so that the identities of all future witnesses are disclosed to the Prosecution immediately; NOTING the Joint Defence Reply to Prosecution Response, fĳiled on 5 September 2006 (“Reply”); NOTING the Trial Chamber’s previous Protective Measures Decision dated 9 May 2006 and reiterating its fĳindings, in particular “that protective measures can be ordered on the basis of a current security situation even where the existence of threats or fears as regards specifĳic witnesses has not been demonstrated”; BEING SATISFIED that the security situation has not considerably changed since the Protective Measures Decision and that there remains a reasonable apprehension of risk or danger to witnesses as expressed in the supporting material submitted by the Defence in their initial Joint Defence Application for Protective Measures for Defence Witnesses fĳiled on 25 April 2006; COGNISANT of the provisions of the Statute of the Special Court for Sierra Leone (“the Statute”) and in particular Articles 16(4) and 17(2) and (4) thereof and Rules 53, 54, 69 and 75 of the Rules of Procedure and Evidence of the Special Court (“the Rules”), concerning the protection of witnesses and victims as well as the rights of the Accused;

1 Kanu-Defence Filing of Witness List Pursuant to Trial Chamber Order of 17 May 2006, 21 August 2006; Confĳidential Joint Defence Disclosure of Individual Witnesses for the fĳirst and second Accused pursuant to the order of the Trial Chamber, 21 August 2006. interlocutory decisions – trial chamber 813

HEREBY GRANTS THE MOTION and ORDERS that the protective measures ordered by the Trial Chamber in its Decision on Joint Defence Application for Protective Measures for Defence Witnesses dated 9 May 2006 shall also apply to the witnesses listed in the Defence documents “Kanu-Defence Filing of Witness List Pursuant to Trial Chamber Order of 17 May 2006” and “Confĳidential Joint Defence Disclosure of Individual Witnesses for the 1st and 2nd Accused Pursuant to the Order of the Trial Chamber II,” both fĳiled on 21 August 2006, with the exception of the expert witnesses. Justice Doherty appends a separate and dissenting opinion. Done at Freetown, Sierra Leone, this 13th day of September 2006. 814 part ii

DISSENTING OPINION OF JUSTICE DOHERTY ON JOINT DEFENCE APPLICATION FOR PROTECTIVE MEASURES FOR DEFENCE WITNESSES APPEARING FROM 4 SEPTEMBER 2006 ONWARDS I have read the majority decision of my learned colleagues and regret I must dissent therefrom. The Defence Motion asks the Trial Chamber to apply, mutatis mutandis, the protective measures granted in its decision of 9 May 20061 to additional defence witnesses on lists fĳiled by the Defence on 21 August 2006, except expert witnesses, on the basis that “[C]ircumstances have not changed in the meantime.”2 The Prosecution oppose the application submitting that the Defence fail to provide evidence of a specifĳic threat to the witness’s security and fail to show if the proposed witnesses are in any of the categories specifĳied in the Defence Motion of 25 April 2006. Alternatively, the Prosecution asks the Trial Chamber to revise the 21 day time limit of rolling disclosure by ordering the immediate disclosure of the full identities of the new witnesses. Article 17(2) of the Statute of the Special Court of Sierra Leone (“the Statute”) provides that “the accused shall be entitled to a fair and public hearing” (emphasis added). Article 16(4) of the Statute and Rules 53, 54 and 69 of the Rules of Procedure and Evidence (“the Rules”) provide inter alia for the protection of witnesses and victims. In particular Rule 53(A) enables the Trial Chamber in “exceptional circumstances” to order non-disclosure of the identity of a victim or of a witness who may be in danger or at risk. As noted in the Prosecutor v. Tharcisse Muvunyi,3 citing Prosecutor v. Bagosora,4 the testimony of the witness must be relevant and important to the party’s case, there must be a real fear for the safety of the witness and an objective basis underscoring that fear and any measure should be strictly necessary. This criteria was approved and adopted by both Chambers of this Court. Muvunyi went further and evaluated “the fear for the safety of witnesses in light of the general security situation …”5 which this Chamber found applicable in Sierra Leone and adopted in its Decision of 9 May 2006.6 However, both the decision of this Trial Chamber on 9 May 2006 and in Prosecutor v. Muvunyi (supra) were made in the light of evidence presented on the safety situation in the country, of the background of the proposed witnesses and

1 Prosecutor v. Brima, Kamara, Kanu, Case No. SCSL-2004-16-T, Decision on the Joint Defence Application for Protective Measures for Defence Witnesses, 9 May 2006. 2 Joint Defence Application for Protective Measures for Defence Witnesses, fĳiled on 25 April 2006, para. 5. 3 Prosecutor v. Muvunyi, ICTR-2000-55A-T, Decision on the Tharcisse Muvinyi’s Motion for Protection of Defence Witnesses, 20 October 2005. 4 Prosecutor v. Bagosora, Case No. ICTR-96-7-I, Decision on the Extremely Urgent Request Made by the Defence for the Protection Measures for Mr. Bernard Ntuyahaga, 13 September 1999, para. 28. 5 Supra note 3, para. 10. 6 Supra note 1. interlocutory decisions – trial chamber 815 how the safety situation impacted on the potential witnesses, thereby enabling the Trial Chamber to make fĳindings and conclude that protective measures should be granted to Defence witnesses. No such evidence of either the security situation or its impact on these diffferent witnesses has been adduced in the instant case. The joint defence merely make a bald statement that the circumstances have not changed but give no facts nor evidence to substantiate this submission. If anything, the Secretary-General’s report to the Security Council for the period 28 April 2006 – 29 August 2006 which “expressed satisfaction with the status of progress in the peace consolidation process …” and noted progress in “reform of the security sector” belies the unsubstantiated Defence claim.7 As no evidence was presented to substantiate the Defence submission and hence no evidence that any proposed witness may be in danger or at risk if her/his identity is disclosed, I am unable to grant the Defence Motion. A party must not assume that the Trial Chamber will accede to an application on such flimsy material for reasons of expediency. Accordingly, I would have denied the Motion but granted the Defence Liberty to Apply. Done at Freetown, Sierra Leone, this 13 September 2006.

7 Second Report of the Secretary-General on the United Nations Integrated Offfĳice in Sierra Leone, UN Doc. S/2006/695, 29 August 2006.

TRIAL CHAMBER II

Before: Justice Richard Lussick, Presiding Judge Justice Teresa Doherty Justice Julia Sebutinde Registrar: Lovemore G. Munlo, SC Date: 14 September 2006 PROSECUTOR Against Alex Tamba Brima Brima Bazzy Kamara Santigie Borbor Kanu (Case No.SCSL-04-16-T)

DECISION ON PROSECUTION MOTION FOR RELIEF IN RESPECT OF VIOLATIONS OF THE TRIAL CHAMBER’S DECISION OF 9 MAY 2006

TRIAL CHAMBER II (“Trial Chamber”) of the Special Court for Sierra Leone (“Special Court”), composed of Justice Richard Lussick, presiding, Justice Teresa Doherty and Justice Julia Sebutinde; SEISED of the Prosecution Motion for Relief in Respect of Violations of the Trial Chamber’s Decision of 9 May 2006, fĳiled on 2 August 2006 (“Motion”), in which the Prosecution seeks an order for the immediate disclosure of the identities of all remaining protected Defence witnesses, submitting that the Defence has repeatedly failed to disclose identifying data of protected witnesses 21 days prior to the testimony of the witnesses as ordered by the Trial Chamber it its “Decision on Joint Defence Application for Protective Measures for Defence Witnesses” of 9 May 20061 (“Protective Measures Decision”) and that such delayed disclosure has occasioned prejudice to the Prosecution and is an impediment to an expeditious trial; NOTING the Joint Defence Response to the Prosecution Motion, fĳiled on 21 August 2006 (“Response”), in which the Defence concedes that the identifying data of some of the Defence witnesses was not disclosed 21 days prior to the testimony of the witnesses due to unforeseen circumstances beyond their control, but submits that the breach has not unduly prejudiced the Prosecution nor caused undue delay of the trial; NOTING the Prosecution Reply to the Defence Response, fĳiled on 28 August 2006 (“Reply”), in which the Prosecution submits that the Defence should in addition to disclosing the names of the witnesses, also disclose further identifying data including date of birth and occupation of each witness as envisaged in the Trial Chamber’s Order for Disclosure of 26 April 20062 and paragraph (d) of the Protective Measures Decision; RECALLING the Order for Disclosure Pursuant to Rule 73 ter and the Start of the Defence Case, dated 26 April 2006 in which the Trial Chamber, inter alia, ordered: “1. That the Defence shall fĳile the following materials on or before 10 May 2006 (a) A list of witnesses which each Defence Team intends to call, including: (ii) the name and/or nickname, date of birth (if known) and occupation of each witness”; RECALLING ALSO the Decision on Joint Defence Application for Protective Measures for Defence Witnesses, dated 9 May 2006, in which the Trial Chamber inter alia, ordered:

1 Prosecutor v. Alex Tamba Brima et al., Case No. SCSL-04-16-T, Decision on Joint Defence Application for Protective Measures for Defence Witnesses, 9 May 2006 2 Prosecutor v. Alex Tamba Brima et al., Case No. SCSL-04-16-T, Order for Disclosure Pursuant to Rule 73 ter and the Start of the Defence Case, 26 April 2006. interlocutory decisions – trial chamber 819

“(d) That the Defence may withhold identifying data of a witness for whom the Defence is seeking protection as set forth in paragraph 13 of the Motion or any other information which could reveal the identity of such witness until 21 days before the witness is due to testify at trial”; NOTING that the Trial Chamber had to adjourn the proceedings on 1 August 2006,3 because of the late disclosure of identifying data of a particular witness and in order to provide the Prosecution with sufffĳicient time to investigate and prepare for cross-examination of that witness; NOTING that the Defence disclosed to the Prosecution by email on 8 September 2006 the identity of all witnesses mentioned on Annex B to the Confĳidential Kanu Defence Filing of Witness List Pursuant to Trial Chamber Order of 17 May 2006, but that this list does not include the necessary identifying data concerning the individual witness list of all three Accused; MINDFUL of the provisions of Article 17, in particular (4)(c) which entitle the accused persons to be tried without undue delay; FINDING that the Defence has repeatedly failed4 to comply with the timeframe for disclosure of identifying data of Defence witnesses contained in the Trial Chamber’s Order in its Protective Measure Decision and that this breach has a negative impact on the expeditious and smooth conduct of the trial; EMPHASISING that the Trial Chamber will not tolerate any further delays and adjournments resulting from any non compliance of its orders; FOR THE ABOVE REASONS GRANTS THE MOTION AND ORDERS that the Defence discloses the identity of all remaining protected Defence witnesses to the Prosecution not later than 4.00 p.m. on Wednesday, 20 September 2006. Done at Freetown, Sierra Leone, this 14th day of September 2006.

3 Transcript 1 August 2006, pages 9-18. 4 The identifying data of DAB-025, DAB-023 and DBK-088 was disclosed on 21 July 2006 and they were called on 28 July 2006, 31 July 2006 and 1 August 2006 respectively; the identifying data of most witnesses called after the recess was only disclosed on 1 September 2006, i.e. DAB-018, DAB-043, DAB-115, DAB-114, DAB-092-, DAB-040, DAB-039, DAB-107, DAB-113, DAB-084, DAB-129, DAB-130, DAB-135, DAB-131, DAB-128.

TRIAL CHAMBER II

Before: Justice Richard Lussick, Presiding Judge Justice Teresa Doherty Justice Julia Sebutinde Registrar: Lovemore G. Munlo, SC Date: 16 October 2006 PROSECUTOR Against Alex Tamba Brima Brima Bazzy Kamara Santigie Borbor Kanu (Case No.SCSL-04-16-T)

CORRIGENDUM DECISION ON PROSECUTION MOTION FOR RELIEF IN RESPECT OF VIOLATIONS OF THE TRIAL CHAMBER’S DECISION OF 9 MAY 2006

TRIAL CHAMBER II (“Trial Chamber”) of the Special Court for Sierra Leone (“Special Court”), composed of Justice Richard Lussick, Presiding Judge, Justice Teresa Doherty and Justice Julia Sebutinde; NOTING the “Decision on Prosecution Motion for Relief in Respect of Violations of the Trial Chamber’s Decision of 9 May 2006,” fĳiled on 14 September 2006 (“the Decision”); NOTING THAT footnote 4 of the Decision read: “The identifying data of DAB-025, DAB-023 and DBK-088 was disclosed on 21 July 2006 and they were called on 28 July 2006, 31 July 2006 and 1 August 2006 respectively; the identifying data of most witnesses called after the recess was only disclosed on 1 September 2006, i.e. DAB-018, DAB-043, DAB-115, DAB-114, DAB-092-, DAB-040, DAB-039, DAB-107, DAB-113, DAB-084, DAB-129, DAB-130, DAB-135, DAB-131, DAB-128” CONSIDERING THAT footnote 4 should read as follows: “The identifying data of DAB-025, DAB-023 was disclosed on 21 July 2006 and they were called on 28 July 2006 and 31 July 2006 respectively; after the recess the identifying data of DAB-129, DAB-130, DAB-135, DAB-131 and DAB-128 was disclosed on 31 August and the witnesses were called in the period from 8 to 13 September 2006.” PURSUANT to Rule 54 of the Rules of Procedure and Evidence of the Special Court, ORDERS that the Decision be amended as set out above. Done at Freetown, Sierra Leone, this 16th day of October 2006. TRIAL CHAMBER II

Before: Justice Richard Lussick, Presiding Judge Justice Teresa Doherty Justice Julia Sebutinde Registrar: Lovemore G. Munlo, SC Date: 28 September 2006 PROSECUTOR Against Alex Tamba Brima Brima Bazzy Kamara Santigie Borbor Kanu (Case No.SCSL-04-16-T)

DECISION ON CONFIDENTIAL PROSECUTION MOTION TO REOPEN THE PROSECUTION CASE TO PRESENT AN ADDITIONAL PROSECUTION WITNESS

TRIAL CHAMBER II (“Trial Chamber”) of the Special Court for Sierra Leone (“Special Court”), composed of Justice Richard Lussick, Presiding Judge, Justice Teresa Doherty and Justice Julia Sebutinde; SEISED of the Confĳidential, With Ex Parte Under Seal Annex, Prosecution Motion to Reopen the Prosecution Case to Present an Additional Prosecution Witness, fĳiled on 25 July 2006 (“Motion”); NOTING the Confĳidential Joint Defence Response to Confĳidential Prosecution Motion to Reopen the Prosecution Case to Present an Additional Prosecution Witness, With Ex Parte Under Seal Annex, fĳiled on 4 August 2006 (“Response”); NOTING the Confĳidential Reply to Joint Defence Response to Motion to Reopen the Prosecution Case to Present an Additional Prosecution Witness, fĳiled on 21 August 2006 (“Reply”); NOTING the provisions of Article 17(4) of the Statute of the Special Court for Sierra Leone (“Statute”) and of Rules 26bis and 85 of the Rules of Procedure and Evidence (“Rules”); HEREBY DECIDES AS FOLLOWS based solely on the written submissions of the parties pursuant to Rule 73(A).

I. Background

1. The Prosecution moves the Trial Chamber for leave to reopen the Prosecution case to present an additional Prosecution witness. Accompanying the Motion is an Ex Parte Under Seal Annex (“Annex”) containing a declaration setting out the details of attempts by the Prosecution to secure the evidence of the proposed witness. 2. The Prosecution submits that the evidence of this proposed witness would be direct evidence of certain signifĳicant issues in the case. We will not set out details of such issues here since this is a public decision and the identity of the proposed witness could be compromised. He is a protected witness who has already testi- fĳied in the case of Prosecutor v. Sesay et al. (“RUF case”) before Trial Chamber I.1 3. The following is a chronology of relevant events which are not in dispute: (i) Late 2002: Prosecution became aware of identity of proposed witness. (ii) September 2005: Prosecution learned of whereabouts of proposed witness. (iii) 25 October 2005: Prosecution investigators met with proposed witness.

1 Prosecutor v. Issa Sesay et al., Case No. SCSL-04-15-T. interlocutory decisions – trial chamber 825

(iv) 4, 29 November, 10, 12 December 2005: Prosecution investigators held additional meetings with proposed witness. (v) 21 November 2005: Prosecution closed its case. (vi) 24, 25 January 2006: Prosecution investigators held meetings with proposed witness at which he agreed to testify. (vii) 9–14 February 2006: Prosecution investigators held additional meetings held with proposed witness. (viii) 17–19 February, 2006: Additional meetings were held between members of the Offfĳice of the Prosecutor and the proposed witness. (ix) 10 March 2006: The Prosecution in the RUF Case fĳiled a motion to add the proposed witness to its witness list. (x) 6 April 2006: In RUF Case, Trial Chamber I granted the afore-mentioned motion. (xi) 5 June 2006: Defence opened its case. (xii) 15 June 2006: In RUF Case, Trial Chamber I ordered protective measures for the proposed witness. (xiii) 20 July 2006: In RUF case, proposed witness began his testimony. (xiv) 25 July 2006: Prosecution fĳiled present Motion to reopen its case. 4. By the time the Prosecution fĳiled the present Motion on 25 July 2006, the Defence had completed the testimonies of 27 Defence witnesses, including the First Accused Brima. All of those witness, with the exception of Brima, were witnesses called in common for all three Accused. The Second Accused Kamara and the Third Accused Kanu elected not to give evidence in their own defence.

II. Preliminary Matter

5. At para. 25 of the Motion, the Prosecution states as follows: “In the event that this motion is not granted, the Prosecution reserves its right to call this witness as a rebuttal witness, if the relevant requirements are met” 6. The Trial Chamber emphasises that at this stage it regards itself as seised solely of a motion to reopen the Prosecution case, and not of an application for leave to call evidence in rebuttal. Accordingly, the latter issue will not be addressed in this decision.

III. Submissions of the Parties

Prosecution Motion 7. The essence of the Prosecution’s argument is that the evidence of the proposed witness satisfĳies the two criteria held by the ICTY Appeals Chamber to be 826 part ii applicable in determining an application for reopening a case to allow for the admission of fresh evidence.2 8. In respect of the fĳirst criterion, i.e. “whether the evidence could have been found before the close of the prosecution case with the exercise of due diligence,”3 the Prosecution refers to its effforts to fĳind and secure the testimony of the proposed witness and submits that it has exercised reasonable diligence but that such evidence was only obtainable after the Prosecution case had closed.4 9. As regards the second criterion, i.e. whether the probative value of the new evidence substantially outweighs the need to ensure a fair trial, the Prosecution submits that the evidence would be highly probative and “would serve the overall interests of justice by providing valuable assistance to the Trial Chamber in the ascertainment of the truth.” It further submits that this application is made at an early stage in the Defence case and would not cause prejudice to the Defence, nor would calling the proposed witness lead to signifĳicant delays in the case.5

Joint Defence Response 10. The Defence claims that because of the ex parte fĳiling of the Annex and the confĳidentiality of the transcripts of the evidence of the proposed witness given in Trial Chamber I, it cannot adequately respond to the Motion. The Defence argues that since protective measures for the proposed witness have been put in place by Trial Chamber I, the confĳidential disclosure of the information contained in the Annex cannot lead to any risk of the identity of the proposed witness being exposed. Accordingly, the Defence requests the Trial Chamber to annul the ex parte nature of the Annex, order the Prosecution to disclose the redacted transcripts of the testimony of the proposed witness given before Trial Chamber I, and suspend a decision on the Motion until the Defence has had an opportunity to address these materials.6 11. Alternatively, the Defence submits that the Prosecution has not satisfĳied either of the two criteria laid down in the Celebici Appeal Judgement for the reopening of a case.7 In regard to the fĳirst criterion, the Defence argues that the reasonable diligence standard continues to apply after the close of the Prosecution case “in order to assess prosecutorial behaviour.”8

2 Prosecutor v. Delalic et al., Case No IT-96-21-A, Judgement, 20 February 2001, par. 283 (“Celebici Appeal Judgement”). 3 Motion, para. 7. 4 Motion, paras. 14-17. 5 Motion, paras. 18-25. 6 Response, paras. 3-5. 7 Response, paras. 7-24. 8 Response, para. 13. interlocutory decisions – trial chamber 827

12. In regard to the second criterion, the Defence claims that the reopening of the Prosecution case would have a detrimental efffect on the fairness of the trial. The Defence also disputes the Prosecution assertion that the application is made at an early stage in the Defence case. The Defence points out that they “had already called 26 common defence witnesses and thus made substantial progress in their case having concluded that presentation of Defence witnesses regarding several important crime base regions.”9

Prosecution Reply 13. The Prosecution replies that the Defence is not handicapped by the ex parte nature of the Annex and the confĳidentiality of the transcripts of the proposed witness in Trial Chamber I. This is because the details given in the Motion of the effforts made to contact the witness do not difffer from those contained in the Annex apart from the omission of any identifying data, which would not be required by the Defence to respond to the question of due diligence. Also, the Motion sets out details of the evidence to be given by the proposed witness which is sufffĳicient for the Defence to “assess the impact of the testimony on the case against the Accused and to address the issue of the probative value and possible cumulative nature of the evidence.”10 14. With regard to the determination of whether the reasonable diligence standard has been met, the Prosecution submits that the decision in the Celebici Appeal Judgement makes it clear that the cut offf point is the conclusion of the Prosecution case, and that any subsequent delay in an application to reopen is relevant only to the question of whether the probative value of the evidence is outweighed by fair trial issues.11

IV. Deliberations

The Applicable Law 15. The Rules allow the Prosecution, with leave, to present additional evidence in rebuttal, but do not give it any right to reopen its case. 16. Rule 85(A), which governs the order of presentation of evidence in a trial, provides as follows:

9 Response, para. 17. 10 Reply, para. 4. 11 Reply, paras. 7, 8. 828 part ii

(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: (i) Evidence for the prosecution; (ii) Evidence for the defence; (iii) Prosecution evidence in rebuttal, with leave of the Trial Chamber; (iv) Evidence ordered by the Trial Chamber. 17. However, although not specifĳically provided for in the Rules, international jurisprudence recognises that the Prosecution “may further be granted leave to re-open its case in order to present new evidence not previously available to it.”12 18. In establishing the criteria for the admissibility of fresh evidence, the ICTY Appeals Chamber in the Celebici Appeal Judgement held that: “the primary consideration in determining an application for reopening a case to allow for the admission of fresh evidence is the question of whether, with reasonable diligence, the evidence could have been identifĳied and presented in the case in chief of the party making the application. If it is shown that the evidence could not have been found with the exercise of reasonable diligence before the close of the case, the Trial Chamber should exercise its discretion as to whether to admit the evidence by reference to the probative value of the evidence and the fairness to the accused of admitting it late in the proceedings. These latter factors can be regarded as falling under the general discretion, reflected in Rule 89(D) of the Rules, to exclude evidence where its probative value is substantially outweighed by the need to ensure a fair trial.13 19. The Rules do not contain a provision equivalent to Rule 89(D) of the ICTY Rules. Nevertheless, we hold that a general discretion rests with the Trial Chamber to exclude evidence where its probative value is substantially outweighed by the need to ensure a fair trial. 20. “Fresh evidence” was defĳined by the Celebici Trial Chamber “not merely as evidence that was not in fact in the possession of the Prosecution at the time of the conclusion of its case, but as evidence which by the exercise of reasonable diligence could not have been obtained by the Prosecution at that time.”14 21. In testing for reopening, reasonable diligence is a threshold inquiry: if a party cannot establish that the evidence could not, with reasonable diligence, have been obtained and presented during its case in chief, the application fails, and the Trial Chamber need not consider the probative value of the evidence.15

12 Celebici Appeal Judgement, supra note 2, para. 27, noting the holding of the Trial Chamber in Prosecutor v. Delalic et al., IT-96-21-T, Decision on the Prosecution’s Alternative Request to Reopen the Prosecution’s Case, 19 August 1998, para. 26 (“Celebici Trial Decision”). 13 Celebici Appeal Judgement, para. 283. 14 Celebici Trial Decision, para. 26; Afffĳirmed in the Celebici Appeal Judgement, para. 286. 15 Prosecutor v. Milosevic, Case No IT-02-54-T, Decision on Application for a Limited Re-opening of the Bosnia and Kosovo Components of the Prosecution Case With Confĳidential Annex, dated 13 December 2005, para. 22. interlocutory decisions – trial chamber 829

22. If the reasonable diligence standard is satisfĳied, the Trial Chamber still has a general discretion to deny reopening if the probative value of the proposed evidence is substantially outweighed by the need to ensure a fair trial.16 The principle to be applied in the exercise of this discretion was stated in the Celebici Trial Decision,17 and afffĳirmed in the Celebici Appeal Judgement18 as being that: Great caution must be exercised by the Trial Chamber lest injustice be done to the accused, and it is therefore only in exceptional circumstances where the justice of the case so demands that the Trial Chamber will exercise its discretion to allow the Prosecution to adduce new evidence after the parties to a criminal trial have closed their case. 23. The burden of proving that the new evidence could not have been obtained by the Prosecution with the exercise of reasonable diligence before the close of its case rests squarely on the Prosecution.19 24. Before considering whether the Prosecution has satisfĳied the fĳirst criterion, it is convenient to address two other matters of contention between the parties, namely: (i) the ex parte fĳiling of the Annex, and (ii) whether the reasonable diligence standard continues to apply after the close of the Prosecution case.

(i) The Ex Parte Filing of the Annex 25. In view of the protective measures already put in place for the proposed witness by Trial Chamber I, we think that the Annex could have been fĳiled confĳiden- tial and inter partes, rather than ex parte, without endangering the identity of the witness. 26. Nevertheless, in our opinion the ex parte fĳiling of the Annex and the confĳi- dentiality of the transcripts of the testimony of the proposed witness given in the RUF case do not prevent the Defence from adequately responding to the Motion. We agree with the Prosecution that, with regard to the issue of reasonable diligence, the details given in the Motion do not difffer in any material respect from those given in the Annex, except that identifying data has been omitted. Furthermore, we consider that the information set out in the Motion in respect of the probative value of the evidence of the proposed witness is sufffĳicient for the

16 Celebici Appeal Judgement, para. 283; see also Prosecutor v. Milosevic, IT-02-54-T, Decision on Application for a Limited Re-Opening of the Bosnia and Kosovo Components of the Prosecution Case with Confĳidential Annex, 13 December 2005, para. 12 (“Milosevic”). 17 Celebici Trial Decision, para. 27. 18 Celebici Appeal Judgement, para. 288. 19 Celebici Trial Decision, para. 26; Afffĳirmed in the Celebici Appeal Judgement, par. 286; see also Milosevic, op.cit., para. 11. 830 part ii

Defence to answer the Motion. We therefore decline to grant the order sought by the Defence in its Response.20

(ii) Whether the Reasonable Diligence Standard Continues to Apply After the Close of the Prosecution Case 27. The Defence submits that the Prosecution had ample opportunity to present the proposed witness before the start of the Defence case but did not apply to do so until almost 6 months after the proposed witness had agreed to testify and more than 4 months after it purportedly realised the signifĳicance of his testimony in respect of the AFRC case. By that time, all three Accused had already fĳinished a substantial part of their case by calling 26 common defence witnesses. Therefore, according to the Defence, the Prosecution has failed to discharge its burden of proving that reasonable diligence was exercised with regard to the obtaining and presenting of the evidence of the proposed witness, since the burden continues to apply after the close of the prosecution case “in order to assess prosecutorial behaviour.”21 28. The Defence bases its argument on the statement by the ICTY Appeals Chamber in the Celebici Appeal Judgement that “it was necessary for the Prosecution to establish that the evidence could not have been obtained, even if after the close of its case, at an earlier stage in the trial.”22 It should be noted, however, that the ICTY Appeals Chamber predicated that statement by reference to the exceptional circumstances of that particular case where the evidence was sought to be presented not only after the close of the Prosecution case, but long after the close of the case of the relevant accused. In fact, the ICTY Appeals Chamber went on to point out that the stage in the trial at which the evidence is sought to be adduced and the potential delay that will be caused to the trial, are matters highly relevant to the fairness of the trial of the accused, and that the Trial Chamber was justifĳied in taking into account the stage of the trial only in the sense of its impact on the fairness of the trial.23 29. We are therefore of the view that, in the present case, the stage in the trial at which fresh evidence is sought to be adduced is not a matter for consideration under the fĳirst criterion of “reasonable diligence,” but is a highly relevant consideration in weighing the probative value of such evidence against the fairness of the trial of the accused (the second criterion).

20 See para. 10 above. 21 Response, paras. 13-15. 22 Response, para. 13; see also Celebici Appeal Judgement, para. 286. 23 Celebici Appeal Judgement, para. 290. interlocutory decisions – trial chamber 831

The Question of Reasonable Diligence 30. Having considered the submissions of the parties and the facts provided by the Prosecution, we fĳind that the Prosecution has not discharged its burden of proof that the evidence could not have been found before the close of the Prosecution case with the exercise of reasonable diligence. Our fĳinding is based on the following reasons, any one of which is fatal to the Motion. 31. Firstly, information in the Annex shows that the name of the proposed witness came up in a number of witness statements in the early stages of the Prosecution investigations as long ago as 2002. These statements left no doubt that the proposed witness was potentially a very important one. 32. Although the Annex states that the Prosecution’s Investigations Section has been “actively involved” in effforts to locate the proposed witness for over 3 years, the details supplied of such effforts do not lead to that conclusion. The Annex merely states that on three occasions over that period information was received but could not be acted upon because of its conflicting nature. In fact, the Annex shows that the Prosecution investigators did not act on any information until September 2005. It appears that there were no vigorous attempts to locate the proposed witness prior to that, despite having been alerted in 2002 to his potential importance. If in fact the Prosecution did take active steps to locate him during the period from 2002 to 2005 it did not disclose them to the Trial Chamber. 33. Furthermore, although information as to his whereabouts was received by the Prosecution’s Investigation Section in September 2005, the fĳirst meeting with him did not take place until 25 October 2005. The Annex explains that the source of the information had to be contacted several times to verify the information and to provide for his safety, but that does not satisfactorily explain why a meeting could not have been arranged at an earlier date. 34. On those facts, we are unable to conclude that the Prosecution exercised reasonable diligence in its effforts to locate the proposed witness. Since the onus of demonstrating reasonable diligence rests on the Prosecution, where it fails to provide sufffĳicient information to permit a thorough evaluation of its application, the Trial Chamber can only conclude that it has not discharged its burden.24 35. Secondly, we cannot accept the Prosecution’s claim in relation to the proposed witness that “his true signifĳicance was only realized after 10 March” (which was the date on which the Prosecution in the RUF Case fĳiled a motion seeking to add the proposed witness to its core witness list).25 The potential importance of

24 Milosevic, op. cit., para. 28. 25 Motion, paras. 16, 17. 832 part ii the proposed witness was evident from statements taken in 2002. In addition, the name of the proposed witness had already been mentioned in the testimonies of at least nine Prosecution witnesses in the present case, many of whom were insider witnesses.26 The Prosecution’s professed ignorance of the importance of the proposed witness’s testimony is therefore not reasonable in the circumstances. A reasonably diligent Prosecution would have realised the potential importance of the testimony of the proposed witness and would have decided whether it was necessary to present it before closing its case.27 36. Thirdly, the Prosecution in this case made no attempt to contact the proposed witness after he had been located in September 2005, despite having longstanding previous knowledge of his potential importance. There is no explanation at all regarding the Prosecution’s inactivity in this regard. Clearly, the reasonable diligence standard is not satisfĳied where no attempt to locate or obtain the evidence in question was made until after the close of the party’s case, and no adequate explanation for such delay is provided.28 37. The fĳinal example of the Prosecution failing to satisfy the reasonable diligence standard is that it failed to mention to the Court that it may seek to call another witness prior to closing its case on 21 November 2005. Had it done so, the Trial Chamber would have been able to make appropriate orders so that the Prosecution case need not have closed without the testimony of the proposed witness. In this regard, we cite with approval the holding of the ICTY Trial Chamber in Hadzihasanovic that one of the aspects of “due diligence” is that if a diligent party “has reason to believe that it will be unable to conclude its investigation before the close of its case, it must inform the Chamber as promptly as possible so that the Chamber may rule on any procedural consequence this may have.”29 38. Our fĳinding – that the Prosecution has not discharged its burden of demonstrating that even with reasonable diligence the evidence of the proposed witness could not have been previously obtained and presented as part of its case – is a sufffĳicient basis on which to dispose of the Motion and it is not necessary for the Trial Chamber to consider the probative value of the proposed evidence. FOR THE ABOVE REASONS, THE TRIAL CHAMBER DISMISSES THE MOTION. Done at Freetown, Sierra Leone, this 28th day of September 2006.

26 This is a public decision so we will not give the pseudonyms of these witnesses here, as it may serve to identify the proposed witness. 27 Prosecutor v. Hadzihasanovic, Case No IT-01-47-T, Decision on Prosecution’s Application to Re-Open its Case, dated 1 June 2005, para. 41. 28 Milosevic, op. cit., para. 26. 29 Hadzihasanovic, op. cit., para. 42. TRIAL CHAMBER II

Before: Justice Richard Lussick, Presiding Judge Justice Teresa Doherty Justice Julia Sebutinde Registrar: Lovemore G. Munlo, SC Date: 5 October 2006 PROSECUTOR Against Alex Tamba Brima Brima Bazzy Kamara Santigie Borbor Kanu (Case No.SCSL-04-16-T)

DECISION ON URGENT PROSECUTION MOTION FOR RELIEF IN RESPECT OF VIOLATIONS OF THE TRIAL CHAMBER’S ORDER OF 26 APRIL 2006

TRIAL CHAMBER II (“Trial Chamber”) of the Special Court for Sierra Leone (“Special Court”), composed of Justice Richard Lussick, Presiding Judge, Justice Teresa Doherty and Justice Julia Sebutinde; SEISED of the Urgent Prosecution Motion for Relief in Respect of Violations of the Trial Chamber’s Order of 26 April 2006, fĳiled on 29 August 2006 (“Motion”), in which the Prosecution seeks an order for expedited fĳilings and submits that the Defence is in violation of the Trial Chamber’s Order of 26 April 2006, in particular that: (i) the Defence for the Accused Brima and Kamara did not fĳile any summaries for their respective individual witnesses1 and consequently should be ordered either to disclose immediately to the Prosecution the statements of these witnesses or to fĳile the summaries of all individual witnesses they intend to call, by 8 September 2006; (ii) the Defence has departed from the call order of common witnesses contained in the original witness list2 and should be ordered to adhere to that call order; to drop from the fĳinal witness list3 any witnesses who do not appear on the original witness list, and to drop any witnesses who appear on the original witness list but not on the fĳinal witness list; and (iii) in their fĳinal list of common expert witnesses4 the Defence unilaterally changed their original list of expert witnesses5 and should be ordered to show good cause for the changes; NOTING the Kanu Defence Response to the Prosecution Motion, fĳiled on 1 September 2006 (“Kanu Response”), in which the Defence for the Accused Kanu oppose the Motion and submit that: (i) the Prosecution is not entitled to the statements of common witnesses in respect of whom the Defence has already disclosed summaries6 and that an order to this efffect would prejudice the Kanu Defence;

1 Confĳidential Joint Defence Disclosure of Individual Witnesses for the 1st and 2nd Accused Pursuant to the Order of the Trial Chamber II, 21 August 2006. 2 Confĳidential Joint Defence Disclosure Pursuant to Trial Chamber Order of 26 April 2006, Annex 1, fĳiled 10 May 2006 (“Original Witness List”). 3 Confĳidential Kanu-Defence Filing of Witness List Pursuant to Trial Chamber Order of 17 May 2006, Annex B, fĳiled on 21 August 2006 (“Final Common Witness List”). 4 Confĳidential Kanu-Defence Filing of Witness List Pursuant to Trial Chamber Order of 17 May 2006, Annex C. 5 Confĳidential Joint Defence Disclosure Pursuant to Trial Chamber Order of 26 April 2006 fĳiled 10 May 2006, Annex 2. 6 Witnesses DAB-014, DAB-112, DAB-126, DAB-111, DAB-142, DBK-113, DBK-060, DBK001 and DBK-064. interlocutory decisions – trial chamber 835

(ii) having been granted leave to fĳile a fĳinal list of witnesses including experts, by 21 August 2006, the Defence is under no legal obligation to justify the changes in their list of common expert witnesses;7 and (iii) the Kanu Defence fulfĳilled the requirements with regard to the call order of common witnesses contained in the original witness list, and that the Motion as relates to the third Accused is frivolous within the meaning of Rule 46(C) of the Rules of Procedure and Evidence (“Rules”); NOTING the Prosecution Reply to the Kanu Response, fĳiled on 6 September 2006 (“Prosecution Kanu Reply”); NOTING the Joint Response of the Brima and Kamara Defence to the Prosecution Motion, fĳiled on 8 September 2006 (“Brima and Kamara Response”), in which the Defence for Brima and Kamara: (i) concede that they did not disclose the summaries for their respective individual witnesses in their fĳinal list of individual witnesses,8 and undertake to do so at least 21 days before the testimony of each witness; and (ii) submit that the Prosecution is not prejudiced by a change in the original call order of Defence witnesses; NOTING the Prosecution Reply to the Brima and Kamara Response, fĳiled on 11 September 2006 (“Prosecution Brima and Kamara Reply”); RECALLING the Trial Chamber’s Order for Disclosure Pursuant to Rule 73ter and the Start of the Defence Case dated 26 April 2006 (“the 26 April Order”) requiring the Defence to fĳile on or before 10 May 2006, inter alia: “(a) A list of witnesses which each Defence Team intends to call, including: (i) the order in which the Defence team intend to call the witnesses, (ii) the name and/or nickname, date of birth (if known), and occupation of each witness; (iii) the language spoken by each witness; (iv) a summary of the facts on which each witness will testify; (v) the points in the Indictment as to which each witness will testify; (vi) the estimated length of time required for each witness; (b) A list of expert witnesses with an indication of when their report will be disclosed to the Prosecution.” RECALLING also the Decision on Confĳidential Joint Defence Motion as to Inability to Provide Details of Certain Witnesses on 10 May 2006 and Anticipated

7 Confĳidential Kanu-Defence Filing of Witness List Pursuant to Trial Chamber Order of May 2006, fĳiled 21 August 2006, Annex C. 8 Confĳidential Joint Defence Disclosure of Individual Witnesses for the 1st and 2nd Accused Pursuant to the Order of the Trial Chamber II, 21 August 2006. 836 part ii

Subpoenas Ad Testifĳicandum, dated 17 May 2006 (“the 17 May Order”) granting the Defence leave to fĳile their fĳinal witness list pursuant to the 26 April Order on or before Monday, 21 August 2006; RECALLING that the extension of time for fĳiling a fĳinal Defence witness list, referred to in 17 May Order applied to not only the ordinary witnesses but also to expert witnesses;9 RECALLING also the Trial Chamber’s Oral Decision of 11 July 2006 in which the Trial Chamber held that: “There is no blanket right for the Prosecution to see the witness statement of a defence witness. The Prosecution has the power only to apply for disclosure of a statement after the witness has testifĳied, with the Chamber retaining the discretion to make a decision based on the particular circumstances in the case at hand”;10 CONSIDERING that as at the time of this Decision, the Defence for the Accused Brima have called all their individual witnesses; COGNISANT of the provisions of Article 17 of the Statute of the Special Court for Sierra Leone (“Statute”) and of Rules 73, 73ter and 94bis of the Rules; FINDS as follows: (i) that there is no basis for the Motion to be treated as urgent; (ii) that the Defence for Brima and Kamara did not in their fĳinal list of individual witnesses11 disclose the summaries for their individual witnesses, in breach of the Trial Chamber’s 26 April 2006 Order, but have since disclosed a number of such summaries;12 (iii) that the Defence, having been granted leave to fĳile their fĳinal witness list including witness call order, by Monday 21 August 2006, was entitled to change the call order of its witnesses in its fĳinal witness list, provided

9 In its 17 May Order, the Trial Chamber took into consideration the contents of the Memorandum (Annex 1) attached to the Confĳidential Joint Defence Motion as To Inability to Provide Details of Certain Witnesses on 10 May 2006 and Anticipated Subpoenas Ad Testifĳicandum, dated 17 May 2006. This Memorandum particularly addresses the issue of expert witnesses. 10 Prosecutor v. Brima, Kamara and Kanu, Case No. SCSL-04-16-T, Oral Ruling on the Disclosure of the Witness Statement of Witness Number DBK-094 to Prosecution, recorded at Transcript page 113, line 11; page 115, lines 24 and 29 and page 116, lines 1-2 and 7-10. 11 Confĳidential Joint Defence Disclosure of Individual Witnesses for the First and Second Accused Pursuant to the Order of the Trial Chamber II, 21 August 2006. 12 Confĳidential Joint Defence Disclosure of Individual Witness Summaries for the First and Second Accused, fĳiled on 11 September 2006, in which the Defence for Brima and Kamara disclosed 12 and 10 individual witness summaries respectively; the Confĳidential Brima Defence Individual Witness Summaries, fĳiled on 25 September 2006, in which the Defence for Brima disclosed 2 witness summaries and the Confĳidential Kamara Defence Individual Witnesses summaries, fĳiled on 29 September 2006 in which the Kamara Defence disclosed fĳive summaries. interlocutory decisions – trial chamber 837

the Prosecution is notifĳied at least 21 days before a witness is called to testify; and (iv) that the Defence, having been granted leave to fĳile their fĳinal witness list inclusive of expert witnesses, by Monday 21 August 2006, was entitled to make changes in their fĳinal expert witness list, provided the Defence comply with the provisions of Rule 94bis (A) of the Rules; FOR THE ABOVE REASONS GRANTS THE MOTION IN PART and orders that the Defence for the Accused Kamara fĳile on or before 12 October 2006 the remaining summaries of their individual witnesses and that any witness whose summary has not been fĳiled by that date shall be deemed to have been dropped from the witness list; and DISMISSES the Motion in all other respects. Done at Freetown, Sierra Leone, this 5th day of October 2006.

TRIAL CHAMBER II

Before: Justice Richard Lussick, Presiding Judge Justice Teresa Doherty Justice Julia Sebutinde Registrar: Lovemore G. Munlo, SC Date: 10 October 2006 PROSECUTOR Against Alex Tamba Brima Brima Bazzy Kamara Santigie Borbor Kanu (Case No.SCSL-04-16-T)

DECISION ON URGENT PROSECUTION MOTION FOR AN ORDER RESTRICTING CONTACTS BETWEEN THE ACCUSED AND DEFENCE WITNESSES AND REQUIRING DISCLOSURE OF SUCH CONTACTS

TRIAL CHAMBER II (“Trial Chamber”) of the Special Court for Sierra Leone (“Special Court”), composed of Justice Richard Lussick, Presiding Judge, Justice Teresa Doherty and Justice Julia Sebutinde; SEISED of the Urgent Prosecution Motion for an Order Restricting Contacts between the Accused and Defence Witnesses and Requiring Disclosure of Such Contacts, fĳiled on 27 July 2006 (“the Motion”); NOTING the Joint Defence Response to the Prosecution’s Motion, fĳiled on 21 August 2006 (“the Response”); NOTING the Prosecution Reply to the Defence Response, fĳiled on 28 August 2006 (“the Reply”); COGNISANT of Article 17(4) of the Statute of the Special Court for Sierra Leone (“the Statute”); HEREBY DECIDES AS FOLLOWS based solely on the written submissions of the parties pursuant to Rule 73(A) of the Rules of Procedure and Evidence of the Special Court (“Rules”).

I. Submissions of the Parties

Prosecution Motion 1. As a consequence of statements made by Defence Counsel in open court that some prospective witnesses had requested to speak to the Accused before testifying,1 the Prosecution seeks orders (1) that the Trial Chamber order expedited fĳilings relating to this Motion (2) prohibiting contacts between the three Accused and any Defence witnesses, in particular contacts between the First Accused and alibi witnesses, without the prior authorisation of the Trial Chamber, and (3) that the Registrar inform the Trial Chamber and the parties of past visits by any defence witnesses to the Accused. 2. The Prosecution submits that in England it is a “well-known principle that discussions between witnesses should not take place, and that the statements and proofs of one witness should not be disclosed to any other witness.”2 in order to avoid any unfounded perception that one witness may tailor his evidence in the light of what someone else said. Nevertheless, the Prosecution concedes that any discussion between witnesses does not preclude the evidence being called nor cause such evidence to be excluded. The Prosecution also refers to Rule 615 of the

1 Motion, para. 4. 2 Motion, para. 7, citing R v. Momodou, (2005) EWCA Crim 177. interlocutory decisions – trial chamber 841

Federal Rules of Evidence (United States of America) and case law arising therefrom which permit domestic courts to exclude a witness from hearing the testimony of another witness. 3. The Prosecution further submits that “the same dangers and considerations that apply in relation to contacts between witnesses apply also in relation to contacts between an accused and defence witnesses,” as the Defence witness may be inadvertently contaminated.3 In addition, the Prosecution argues that since the First Accused was also a witness, any contact between him and prospective witnesses is tantamount to contact between witnesses.

Defence Response 4. The Defence jointly oppose the motion. They submit that an accused’s “facility for the preparation of his or her defence,” includes assessing and selecting witnesses and that “the selection of witnesses by the accused is part and parcel of the fair trial rights of the accused him or herself, and not (only) ascribed to the competence of Defence Counsel under Article 17(4)(b) of the Statute, Article 6(3)(b) ECHR4 and Article 14(3)(d) ICCPR.”5 6 Hence they submit that restricting the contacts between the Accused and defence witnesses is an infringement on the fair trial rights of the Accused.7 5. However, the Defence do not cite any authorities to support this interpretation of Article 17(4)(b) of the Statute or the relevant Articles of the Conventions. 6. The Defence seek to distinguish the English and North American case law relied on by the Prosecution, submitting that the cases emanate from the common law context of jury trials and strict rules of admission of evidence which are not applicable to the Special Court and Rule 89(C). 7. In response to the Prosecution submission distinguishing contact between Defence Counsel and witnesses from contact between Accused and witnesses, the Defence state: “The position of Defence Counsel cannot be abstracted from that of the Accused. If one accepts the right to self-representation within international criminal proceedings, as set forth by the ICTY Appeals Chamber ruling in Prosecutor v. Milosevic, the same

3 Motion, para. 14. 4 [European] Convention for Protection of Human Rights and Fundamental Freedoms, 213 U.N.T.S. 221 (1955). 5 International Covenant of Civil and Political Rights. 6 Response, para. 6. 7 Ibid. 842 part ii

procedural powers which apply to Defence Counsel should also apply to the accused him or herself.”8 8. The Defence submit that there is no “factual foundation” for the Prosecution Motion and no proof is given that witnesses will be influenced by any contact with an Accused. The Defence also refer to the reason given orally for the proposed visits, viz. to permit the witnesses to “explain their fate” and “not to get their stories to coincide,” 9 and to the remarks of the Presiding Judge that the Prosecution can test the defence witnesses in cross examination.

Prosecution Reply 9. In reply, the Prosecution argues that the Accuseds’ fair trial right to select witnesses does not extend to meeting them when an accused is represented by Counsel. Prosecution submits that Counsel are “bound by ethical and professional obligations” that do not bind an accused.10 It seeks to distinguish the case of Prosecutor v. Milosevic, where the accused represented himself but had counsel imposed on him by the Trial Chamber.11 The Prosecution reiterates that the First Accused was also a witness and case law relating to collusion between witnesses is, therefore, applicable in his case. 10. The Prosecution concedes that it has not made any specifĳic allegations against the Defence, but nevertheless wants to avoid a risk of contamination of evidence.

II. Deliberations

11. It is common ground that there is no evidence that any Accused has actually influenced a witness or a potential witness. 12. When this issue was fĳirst raised in Court, Lead Counsel for Brima stated that prospective witnesses wished to see the Accused persons in order “to discuss, if I am right, their stories, or the account, or their testimony that they are coming to give here in the Court ....”12 Subsequently, Co-Counsel added that witnesses wished “to explain their fate,” “not to get their stories to coincide.”13 13. The Defence seek to distinguish the case law submitted by the Prosecution on the ground, inter alia, that it only applies to collusion between witnesses.

8 Defence Response, para. 13. 9 Transcript 26 July 2006, page 3. 10 Reply, para. 10. 11 Prosecutor v. Milosevic, Case No. IT-02-54-AR73, Decision on Interlocutory Appeal of the Trial Chamber’s Decision on the Assignment of Defence Counsel, 1 November 2004. 12 Transcript 25 July 2006, page 8. 13 Transcript 26 July 2006, page 3. interlocutory decisions – trial chamber 843

However, it would be naïve to presume that there could not be collusion between an accused and a witness. 14. There is no specifĳic provision in the Rules or the Rules of Detention14 which prevents an accused speaking to a witness. Rule 90(D) of the Rules – referred to by the parties – is not pertinent to the instant case as it deals with a witness who has not yet testifĳied being present in court during the testimony of another witness. 15. Whilst collusion between witnesses or between an accused and a witness may occur, such contact neither prevents a witness from testifying nor results in that evidence being inadmissible. If there is a possibility that evidence has been contaminated by contact with another witness “the way to test the credibility of witnesses is by cross-examination, which can be used to determine whether witnesses, have colluded or exchanged information on their testimony.”15 16. We fĳind that the Prosecution has failed to establish that there has been any contact between an Accused and any witness. The statements by Defence Counsel in para. 12 above do not amount to evidence of collusion. Hence, we hold that there are no grounds to grant any of the orders sought in the Motion. 17. However, we remind Defence Counsel of the duty to ensure that his/her professional integrity is not impugned and not to bring the administration of justice into disrepute. Rule 5(iii) Code of Professional Conduct16 provides: Article 5 – Competence, Independence and Integrity (amended on 13 May 2006) Counsel shall act with: […] (iii) integrity to ensure that his actions do not bring the administration of justice into disrepute. 18. We consider that this duty extends to ensuring that the integrity of the evidence is maintained.17 FOR THE FOREGOING REASONS the Motion is dismissed. Done at Freetown, Sierra Leone, this 10th day of October 2006.

14 Rules Governing the Detention of Persons Awaiting Trial or Appeal before the Special Court for Sierra Leone or Otherwise Detained on the Authority of the Special Court for Sierra Leone (“Rules of Detention”), adopted 7 March 2003. 15 Prosecution v. Brima, Kamara, Kanu, Case No. SCSL-0416-T, Decision on Confĳidential Urgent Joint Defence Motion to Exclude Evidence Given by Witness TF1-157 and Evidence to be Given by TF1-158 Based on Lack of Authenticity and Violation of Rule 95, 10 October 2005, para. 20. 16 Code of Professional Conduct for Counsel with the Right of Audience before the Special Court for Sierra Leone, adopted 14 May 2005. 17 See also the Prosecutor v. Jelisic, Case No. IT-95-10, Decision on Communication between Parties and Witnesses, 11 December 1998, with reference to a specifĳic provision in the ICTY Code of Professional Conduct for Counsel Appearing Before The International Tribunal.

TRIAL CHAMBER II

Before: Justice Richard Lussick, Presiding Judge Justice Teresa Doherty Justice Julia Sebutinde Registrar: Mr. Lovemore G. Munlo, SC Date: 14 November 2006 PROSECUTOR Against Alex Tamba Brima Brima Bazzy Kamara Santigie Borbor Kanu (Case No.SCSL-04-16-T)

DECISION ON CONFIDENTIAL MOTION TO CALL EVIDENCE IN REBUTTAL

Office of the Prosecutor: Defence Counsel for Alex Tamba Brima: James C. Johnson Kojo Graham Karim Agha Glenna Thompson Nina Jorgensen Defence Counsel for Brima Bazzy Kamara: Andrew Daniels Mohamed Pa-Momo Fofanah Defence Counsel for Santigie Borbor Kanu: Geert-Jan Alexander Knoops Carry Knoops Agibola E. Manly-Spain 846 part ii

SEISED of the Prosecution’s Confĳidential Motion for Leave to Call Evidence in Rebuttal, fĳiled on 16 October 2006 (“Motion”);

NOTING the Confĳidential Kanu Defence Response to Prosecution Motion for Leave to Call Evidence in Rebuttal, fĳiled on 19 October 2006 (“Kanu Response”);

NOTING the Confĳidential Brima Response to Prosecution Motion for Leave to Call Evidence in Rebuttal, fĳiled on 20 October 2006 (“Brima Response”);

NOTING the Confĳidential Prosecution Reply to Kanu Response to Prosecution Motion for Leave to Call Evidence in Rebuttal, fĳiled on 25 October 2006 (“Reply to Kanu Response”);

NOTING the Confĳidential Prosecution Reply to Brima Response to Prosecution Motion for Leave to Call Evidence in Rebuttal, fĳiled on 25 October 2006 (“Reply to Brima Response”);

RECALLING the Decision on Prosecution Motion for relief in Respect of Violations of Rule 67;1

RECALLING also the Order For Expedited Filing, dated 17 October 20062 (“Order For Expedited Filing”) wherein the Trial Chamber ordered that (1) Any Response to the Motion shall be fĳiled on or before 4 p.m. on Monday, 23 October 2006; and (2) Any Reply to the said Response shall be fĳiled on or before 4 p.m. on Wednesday, 25 October 2006; COGNISANT of Article 17(4)(c) of the Statute of the Special Court for Sierra Leone and of Rules 26bis, 67(A)(ii)(a), 67(B), 73, 75 and 85(A) of the Rules of Procedure and Evidence (“Rules”);

HEREBY DECIDES AS FOLLOWS based solely on the written submissions of the parties pursuant to Rule 73(A) of the Rules of Procedure and Evidence of the Special Court (“Rules”).

1 SCSL-04-16-T-521. 2 SCSL-04-16-T-571. interlocutory decisions – trial chamber 847

I. Introduction

1. This is a Motion fĳiled by the Prosecution pursuant to Rules 73 and 85(A) of the Rules for leave to call evidence to rebut the evidence given by the First Accused Brima and certain other Defence witnesses and for immediate protective measures for any Prosecution witnesses called in rebuttal.3

2. Summaries of the proposed rebuttal evidence are tabulated in Annex A to the Motion, alongside corresponding summaries of the evidence to be rebutted. The proposed rebuttal witnesses fall into two categories. The fĳirst category concerns witnesses to rebut the alibi evidence of the First Accused Brima in relation to Kailahun (February1998 – July 1998), Yarya (July 1998 – September 1998) and Freetown Invasion (October 1998 – January 1999).

3. The second category concerns witnesses to rebut evidence presented in the Defence case that could not have been anticipated by the Prosecution, namely: (a) The evidence of First Accused Alex Tamba Brima and of Witness DAB 059 that the First Accused was too ill to carry out his duties as Principal Liaison Offfĳicer II (PLO2) during the AFRC regime (May 1997 – February 1998); (b) The evidence of First Accused Alex Tamba Brima that he never oversaw diamond mining and never mined diamonds himself in Kono District during the AFRC regime (May 1997 – February 1998); (c) The evidence of First Accused Alex Tamba Brima that throughout his military career he was never promoted above the rank of corporal, a rank that carries no command authority; (d) The evidence of First Accused Alex Tamba Brima that while under arrest at the Operational Support Department (OSD) Headquarters his belongings were taken from him, and that later whilst detained at the Criminal Investigations Department (CID) he was roughed up and forced to sign a ledger entitled “Tamba Brima Gullit”; (e) The evidence of First Accused Alex Tamba Brima that while in detention at Pademba Road Prison he was offfered money to testify against Johnny Paul Koroma. 4. The core rebuttal witness list is comprised of 8 witnesses, with another 4 witnesses in the back up rebuttal witness list.4

3 Motion, paras. 1, 24. 4 See Annex B to the Motion. 848 part ii

5. The specifĳic evidence to be rebutted and the proposed rebuttal evidence relating thereto are discussed in more detail below under the heading “Deliberations.”

II. Preliminary Matters

6. It is appropriate to address two preliminary matters at this stage. 7. The fĳirst such matter concerns a document entitled “Confĳidential Kamara Response to Prosecution Motion for Leave to Call Evidence in Rebuttal” was fĳiled by the Defence for the Second Accused Kamara at 16.10 hours on Tuesday, 24 October 2006. 8. The Trial Chamber, in its “Order for Expedited Filing” ordered that any Response to the Motion was to be fĳiled on or before 4 pm on Monday, 23 October 2006. Subsequent to that order, the Registrar, on 19 October 2006, declared that Monday, 23 October 2006 was to be observed as an offfĳicial holiday of the Special Court, (Eid-Ul-Fitr).5 This meant that, by virtue of Rule 7(B), the time for fĳiling a Response was extended to the next working day, i.e. to 4 pm on Tuesday, 24 October 2006. Thus, despite the fact that the Kamara Defence had virtually been given an extra day in which to prepare its Response, it still fĳiled the document out of time in contravention of the order of the Trial Chamber. 9. No explanation has been put forward by the Kamara Defence for the late fĳil- ing. In the circumstances, granting an extension of time is not warranted and, accordingly, we rule that the document is inadmissible and shall be disregarded. 10. We note that the Brima Response recites that the Second Accused Kamara “associates with this response and adopts the arguments in so far as it afffects the Second Accused,”6 although that document has not been signed by the Second Accused or his counsel. 11. The second preliminary matter relates to the question of the confĳidentiality or otherwise of this Decision. All submissions fĳiled by the parties were marked “CONFIDENTIAL” in order to protect the identities of witnesses in respect of whom protective measures have been ordered. However, we are mindful of the provisions of Rule 78 which states: “All proceedings before a Trial Chamber, other than deliberations of the Chamber, shall be held in public, unless otherwise provided.” Moreover, we have stated in the past that all documents fĳiled before the Special Court should be public, as a matter of general principle, unless there is a

5 See Registrar’s Information Circular SCSL/IC/2006/025, 19 October 2006. 6 Brima Response, para. I. 4. interlocutory decisions – trial chamber 849 convincing reason offfered to the contrary.7 This Decision has therefore been worded in such a way that the identities of protected witnesses have not been put in jeopardy and, accordingly, the Decision shall be classifĳied as “public.”

III. Submissions of the Parties

Prosecution 12. In relation to the fĳirst category of rebuttal evidence, the Prosecution acknowledges that the First Accused gave limited notice of an alibi “or partial alibi” in his Pre-Trial Brief of 17 February 2005.8 However, the Prosecution claims that details of a more extensive alibi emerged during his testimony, which was completed on 7 July 2006. The Prosecution points out that the Trial Chamber has already ruled that the notifĳication in the Pre-Trial Brief did not comply with Rule 67(A)(ii)(a)9 and that no notifĳication as required by that Rule has ever been provided.10 13. According to the Prosecution, it did not have notice of the alibis of the First Accused during the presentation of the Prosecution evidence-in-chief, and could not have reasonably anticipated this aspect of the Defence case. The Prosecution claims that its proposed rebuttal evidence relates to an issue central to the determination of the guilt or innocence of the First Accused and is of probative value.11 14. As regards the second category of rebuttal evidence, the Prosecution seeks to call evidence to rebut the Defence evidence that: (1) the First Accused was suf- fering from an illness that prevented him from fulfĳilling his role as PLO2 during the junta period; (2) the health condition of the First Accused prevented him from being involved in diamond mining in Kono; (3) the First Accused was never promoted above the rank of corporal; (4) the First Accused was forced to sign a

7 See the Prosecution v. Brima, Kamara, Kanu, Case No. SCSL-04-16-T, Decision on the Confĳidential Joint Defence Application for Withdrawal by Counsel for Brima and Kamara and on the Request for Further Representation by Counsel for Kanu, 20 May 2005, para. 22 citing The Prosecutor v. Issan H. Sesay et al., Case No. SCSL-04-15-PT, Decision on the Motion by Morris Kallon for Bail, 23 February 2004, para. 19. 8 SCSL-04-16-PT-145, Defence Pre-Trial Brief for Alex Tamba Brima, 17 February 2005. 9 For the purposes of this Decision, the relevant parts of Rule 67 are as follows: “Rule 67(A): As early as reasonably practicable and in any event prior to the commencement of the trial: […] (ii) The Defence shall notify the Prosecutor of its intent to enter: (a) The defence of alibi; in which case the notifĳication 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.” 10 Motion, para. 7; see also Prosecutor v. Brima, Kamara, Kanu, Case No. SCSL-04-16-T, Decision on Prosecution Motion for Relief in Respect of Violations of Rule 67, 26 July 2006, para. 22. 11 Motion, para. 8. 850 part ii ledger and was offfered money to testify while at Pademba Road Prison. The Prosecution submits that such Defence evidence could not have been anticipated.12 15. In the event that the Trial Chamber allows the presentation of rebuttal evidence, the Prosecution moves that protective measures be put in place for the remaining rebuttal witnesses (with the exception of John Berry) in accordance with Rule 75.13

Kanu Defence 16. The Kanu Defence cites ICTR case law for the proposition that two legal criteria must be met to admit rebuttal evidence. The fĳirst is that the evidence to be rebutted must have arisen directly ex improviso during the Defence case-in-chief and could not have been foreseen, despite the exercise of due diligence. The second is that the proposed rebuttal evidence must have signifĳicant probative value to the determination of the guilt or innocence of the Accused.14 17. The Kanu Defence submits that the proposed rebuttal evidence of witnesses TF1 360 and TF1 376 that “the First Accused, the Second Accused, the Third Accused and Woyo were not under arrest the whole time at Col. Eddie Town” did not arise directly ex improviso during the Defence case in an unforeseeable manner. The issue of the house arrest of the three Accused was in fact raised by Prosecution witness TF1 167. The Kanu Defence therefore submits that the suggested evidence fails to meet the fĳirst criterion and also fails to meet the second criterion, since any dispute about the length of the house arrest falls outside the scope of that criterion in that it has no signifĳicant probative value as to the guilt or innocence of the Accused.15 18. As to the second category of rebuttal evidence, the Kanu Defence submits that the entire evidence under this category fails to meet the legal criteria for rebuttal. According to the Kanu Defence, the four elements that the Prosecution seeks to rebut16 fail to meet the “signifĳicant probative value test,” since none of the four elements goes to the determination of the guilt or innocence of the Accused, nor is there any attempt by the Prosecution to prove that they do.17

12 Motion, para. 12. 13 Motion, para. 16 to 21. 14 See Kanu Response para. 9 and also the Prosecutor v. Ntagerura et al., Case No. ICTR-99-46-T, Decision on the Prosecutor’s Motion for Leave to Call Evidence in Rebuttal Pursuant to Rules 54, 73, and 85(A)(iii) of the Rules of Procedure and Evidence, 21 May 2003, para. 34. 15 Kanu Response, para. 11. 16 See para. 14 above. 17 Kanu Response, para. 12, 13. interlocutory decisions – trial chamber 851

19. The Kanu Defence argues that Annexure A to the Motion “is merely an attempt by the Prosecution to either reinforce its case or to contradict the evidence that was led by the defence, especially the First Accused. The whole rebuttal evidence in that respect is merely designed to discredit the First Accused. That, it is submitted, is an abuse of the rebuttal process.”18 The Kanu Defence submits that, in the circumstances, expediency requires that rebuttal be denied where the legal requirements have not been met.19 20. In conclusion, the Kanu Defence submits that the Motion should be denied in the case of the Third Accused on the basis that it only intends to rebut evidence led by the First Accused in his own testimony. Alternatively, the Motion should be denied in that it does not meet the requisite legal criteria.20

Brima Defence 21. The Brima Defence adopts the legal arguments contained in the Kanu Response.21 22. As regards the fĳirst category of proposed rebuttal evidence, the Brima Defence submits that such evidence cannot be said to have arisen directly out of Defence evidence which could not reasonably have been anticipated. The Brima Defence claims that the Defence case was extensively made during cross- examination of Prosecution witnesses, which included a complete denial of the version of events, put forward by the Prosecution. Moreover, the proposed rebuttal evidence appears merely to buttress the Prosecution evidence or to address inconsistencies between Prosecution witnesses.22 23. Although the Brima Defence does not admit that the alibi evidence was not foreseen, it points out that the Prosecution has already led evidence from a variety of witnesses which puts the First Accused elsewhere at the relevant time, so that the Trial Chamber has sufffĳicient evidence upon which to decide the question of alibi.23 24. As regards the second category of proposed rebuttal evidence, the Brima Defence submits that the issues raised by the Prosecution are not central to the issue of the determination of guilt or innocence. Further, the proposed rebuttal

18 Kanu Response, para. 15. 19 Kanu Response, para. 16. 20 Kanu Response, para. 17. 21 Brima Response, para. II. 1. 22 Brima Response, para. II. 2. 23 Brima Response, para. II. 3. 852 part ii evidence would only serve to prolong the trial and buttress evidence already given.24

Prosecution Reply to Brima Response 25. The Prosecution agrees that it did cover some of the facts sought to be rebutted in its case-in-chief. However, the Prosecution submits that it was not aware of the particulars of the alibis at the time the evidence was presented, and that much of the proposed rebuttal evidence goes to the central issue of the alibis as presented by the Accused Brima. The Prosecution claims that its case and the testimony of many witnesses were not presented in such a way as to rebut the evidence called by the Defence. 26. In regard to the second category of proposed rebuttal evidence, the Prosecution argues that such evidence has signifĳicant probative value in relation to the health of Brima and whether he was able to play a signifĳicant role in the AFRC Government. Further, the proposed rebuttal evidence will go to the credibility of Brima and is therefore signifĳicant.25

Prosecution Reply to Kanu Response 27. The Prosecution argues that the submissions of the Kanu Defence should be rejected. In particular, there is no basis to the argument that the case against the Third Accused should be “severed” in the sense that any rebuttal evidence should only be applied to the First Accused, since the Trial Chamber should consider all of the evidence in a case in relation to all of the accused in the case, so far as it is relevant.26 28. In relation to the detention of the three Accused and Woyo in Colonel Eddie Town, the Prosecution claims that the Kanu Defence argument is disingenuous, since the evidence of Prosecution Witness TF1-167 was that they were under arrest for a certain period of time, not the whole time. The alibi that they were under arrest for the whole time was never put to the Witness in cross-examination and the Trial Chamber has already held that the First Accused was in violation of his obligations under Rule 67(A)(ii)(a) of the Rules in failing to disclose this alibi defence within the prescribed time.27 29. The Prosecution submits furthermore that the second category of proposed rebuttal evidence is of signifĳicant probative value.28

24 Brima Response, para. II. 5. 25 Prosecution Reply Brima, paras. 20–23. 26 Prosecution Reply Kanu, paras. 2–4. 27 Prosecution Reply Kanu, para. 6. 28 Prosecution Reply Kanu, para. 7. interlocutory decisions – trial chamber 853

IV. Deliberations

A. The Applicable Law 30. Rule 85(A), which governs the order of presentation of evidence in a trial, provides as follows: (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: (i) Evidence for the Prosecution; (ii) Evidence for the Defence; (iii) Prosecution evidence in rebuttal, with leave of the Trial Chamber; (iv) Evidence ordered by the Trial Chamber. 31. It can be seen that Rule 85(A) does not create any entitlement for the Prosecution to present evidence in rebuttal. Rebuttal evidence can only be presented with leave of the Trial Chamber. In deciding an application for leave, the Trial Chamber has a wide discretion to limit or preclude the presentation of rebuttal evidence in order to ensure that the trial proceeds expeditiously, without unfairness and needless consumption of time.29

B. Criteria for Admission of Rebuttal Evidence 32. Rebuttal evidence is characterised as “evidence to refute a particular piece of evidence which has been adduced by the defence,” and is thus “limited to matters that arise directly and specifĳically out of defence evidence.”30 Rebuttal evidence must relate to a signifĳicant issue arising directly out of defence evidence which could not reasonably have been anticipated.31 33. Rebuttal evidence may not be called by the Prosecution merely because its case has been met by certain evidence contradicting it. Only highly probative evidence on a signifĳicant issue in response to Defence evidence may be led as rebuttal evidence and not evidence which merely reinforces or fĳills gaps in the Prosecution case-in-chief.32 34. The Prosecution therefore bears the burden of establishing the following two elements:

29 See Prosecutor v. Ntagerura et al., supra note 14, para. 31. 30 Prosecutor v. Delalic et al., Case No. IT-96-21-A, Judgment, 20 February 2001, para. 273. (“Celebici Appeal Judgment”). 31 Ibid. 32 Prosecutor v. Kordic and Cerkez, Case No. IT-95-14/2, Oral Decision of 18 October 2000, T26647; see also Prosecutor v. Limaj et al., Case No. IT-03-66-T, Decision on Prosecution’s Motion to Admit Rebuttal Statements via Rule 92bis, 7 July 2005, para. 6; Celebici Appeal Judgement, para. 275. 854 part ii

(i) that the evidence sought to be rebutted arose directly ex improviso during the presentation of the Defence case in-chief and could not, despite the exercise of reasonable diligence, have been foreseen; and (ii) that the proposed rebuttal evidence has signifĳicant probative value to the determination of an issue central to the determination of the guilt or innocence of the Accused.33 35. Evidence which goes to a matter that forms a fundamental part of the case which the Prosecution is required to prove in relation to the charges brought in the Indictment34 should be brought as part of the Prosecution case-in-chief and not in rebuttal.35 The Prosecution is under a duty to adduce all the evidence critical to proving the guilt of an accused in its case-in-chief, and only if a new issue is raised in the course of the Defence case may the Prosecution lead evidence in rebuttal.36 36. We turn now to consider the Motion with regard to the specifĳic Defence evidence sought to be rebutted by the Prosecution.

C. First Category: Proposed rebuttal evidence to refute the alibi evidence of the First Accused, Alex Tamba Brima 37. We do not agree with the submission by the Prosecution that it did not have notice of the alibis of the First Accused at all during the presentation of the Prosecution’s evidence-in-chief and that this aspect of the Defence case “arose directly ex improviso during the Defence case and could not reasonably have been anticipated.” 38. We note that the Brima Defence gave the following “notice of alibi or partial alibi” in the “Defence Pre-Trial Brief for Tamba Alex Brima” fĳiled on 17 February, 2005:37 “The Prosecution has asserted that Tamba Brima was ‘in direct control of AFRC/RUF forces in Kono District.’ This is denied by the Accused. For the reasons given elsewhere in this pre-trial brief the Accused could not have been in command of any

33 Prosecutor v. Ntagerura et al., supra note 14, para. 34. 34 See Further Amended Consolidated Indictment, paras. 24, 49, 56, 63, 72 and 79. 35 Celebici Appeal Judgement, para. 275; see also Prosecutor v. Oric, Decision on the Prosecution Motion with Addendum and Urgent Addendum to Present Rebuttal Evidence Pursuant to Rule 85(A)(iii), 9 February 2006. 36 Prosecutor v. Blagojevic and Jokic, Case No. IT-02-60-T, Decision on Prosecution’s Motion to Admit Evidence in Rebuttal and Incorporated Motion to Admit Evidence under Rule 92bis in its Case in Rebuttal and to Re-open its Case for a Limited Purpose, 13 September 2004, para. 5; see also Prosecutor v. Limaj et al., supra note 32, para. 6; Prosecutor v. Oric, supra note 35. 37 SCSL-04-16-PT-145, Defence Pre-Trial Brief for Alex Tamba Brima, 17 February 2005. 38 Ibid., para. 11. interlocutory decisions – trial chamber 855

forces. In any event, the Defence will seek to call evidence, if required, to show that Mr. Brima was held in custody by the RUF between February and July 1998. Accordingly it is submitted that he had an alibi for the period relating to the allegations. It is further specifĳically denied that the accused person was in command of AFRC/RUF, or any other factional units between 22nd December, 1998 and January 1999 as alleged.”38 “In relation to Count 14 the Defence will rely on alibi or partial alibi in that it is asserted that the Accused was placed under arrest by the RUF in Kailahun in mid February 1998 and that he was incarcerated until around 8th July 1998 whereupon he fled and stayed with family until October 1998. He will assert that he was not engaged in any operations or hostilities during that time.”39 39. We note further that during the presentation of the Prosecution’s case-in- chief, Counsel for the First Accused Brima did on more than one occasion, indicate in open court that the First Accused would be putting forward an alibi defence and would be calling evidence in support of thereof.40 40. If the information provided by the said notice of alibi and submissions of Defence Counsel were in the Prosecution’s opinion, not sufffĳicient to enable the Prosecution to investigate the alibi in order to present evidence in its case-in-chief (which did not commence until 7 March 2005), then it did nothing to inform the Brima Defence in a timely manner of that fact. It was not until the First Accused Brima gave alibi evidence in the Defence case that the Prosecution applied to the Trial Chamber for an order requiring the Defence to fĳile a formal notice of alibi with the particulars prescribed by Rule 67(A)(ii)(a).41 The Trial Chamber subsequently held that the First Accused Brima had not provided the notice required by Rule 67(A)(ii)(a) and was therefore in breach of that Rule. The Brima Defence was ordered to make the necessary disclosures in accordance with Rule 67(A)(ii)(a) by 4 pm Monday, 31 July 2006. The Trial Chamber refused to grant similar relief against the Second Accused Kamara and the Third Accused Kanu.42 The Prosecution was subsequently able to carry out investigations and cross-examine Brima and other Defence witnesses regarding the alibis. 41. Although the “notice of alibi or partial alibi” provided by the First Accused in his Pre-trial brief did not disclose the particulars required under Rule 67(A)(ii)(a), the Prosecution cannot for purposes of an application under Rule 85(A)(iii), argue that it received no notice of the alibis at all or that the Defence evidence in that

39 Ibid., para. 28(e). 40 See oral submissions of Mr. Metzger in open court, Transcript 14 March 2005, p. 3, lines 16-24; Transcript 26 April 2005, p. 6, line 8. 41 SCSL-04-16-T-508, Prosecution Motion for Relief in Respect of Violations of Rule 67, fĳiled on 7 July 2006, para. 25. 42 See Prosecutor v. Brima Kamara, Kanu, Case No. SCSL-04-16-T, Decision on Prosecution Motion for Relief in Respect of Violations of Rule 67, dated 26 July 2006, paras. 23, 24, 27. 856 part ii regard “could not reasonably have been anticipated.” In our opinion, that notice was sufffĳicient to put the Prosecution on notice that the First Accused would be raising an alibi defence in relation to crimes committed in Kono District and the north-eastern and central areas of the Republic of Sierra Leone during the period February to July 1998 and between 8 July 1998 and October 1998, and would otherwise deny individual or command responsibility for crimes committed during the period 22 December 1998 to January 1999.43 42. Having thus been put on notice the Prosecution could have, through the exercise of due diligence, discovered the evidence it now seeks to submit in rebuttal to the alibis of the First Accused and could have presented it in the Prosecution case-in-chief. We do not need to speculate as to precisely what particulars might have been supplied by the Defence had the Prosecution made a timely request for same. What is signifĳicant is that the Prosecution completely ignored the “notice of alibi or partial alibi” given in Brima’s Pre-Trial Brief. Had the Prosecution not been satisfĳied with the information disclosed therein it had the option to request the Defence for further and better particulars under Rule 67(A)(ii)(a) before the start of the Prosecution case. This is because, as mentioned above,44 the Prosecution is under a duty to lead all the evidence critical to proving the guilt of an accused in its case-in-chief, and only if a new issue that could not reasonably have been anticipated is raised in the course of the Defence case may the Prosecution lead evidence in rebuttal. Instead, the Prosecution opted to seek further and better particulars of the Brima alibi defence on 7 July 2006,45 well into the Defence case. In those circumstances the Prosecution cannot claim that the alibi evidence given in the Defence case is “a new issue arising directly out of Defence evidence which could not reasonably have been anticipated.” 43. We hold that, since the Prosecution had sufffĳicient time and opportunity to challenge the alibi defence of the First Accused, it cannot now request to bring evidence in rebuttal to remedy what it omitted to do during its case-in-chief.46 44. Furthermore, having examined the summaries of the proposed rebuttal evidence, we fĳind that none of them satisfĳies the criteria for admission as rebuttal evidence, namely that it must be of “signifĳicant probative value to the determination of the guilt or innocence of the Accused” and which “does not merely reinforce or

43 See Defence Pre-Trial Brief for Tamba Alex Brima, para. 11; see also Further Amended Consolidated Indictment, para. 24. 44 See para. 35. 45 See SCSL-04-16-T-508, Prosecution Motion for Relief in Respect of Violations of Rule 67, fĳiled on 7 July 2006. 46 See Prosecutor v. Kamuhanda, ICTR-99-54A-T, Decision on the Prosecutor’s Motion for Leave to Call Rebuttal Evidence Pursuant to Rule 85(A)(iii) of the Rules of Procedure and Evidence, dated 13 May 2002, para. 19. interlocutory decisions – trial chamber 857 fĳill gaps in the Prosecution case-in-chief.”47 We set out our reasons in the following analysis of the proposed rebuttal evidence, in the same sequence as the summaries of evidence tabulated in Annex A to the Motion. Alex Tamba Brima’s Alibi that he was under arrest at Kailahun (February 1998 – July 1998)

(a) Evidence relating to Brima’s Arrests in Kono and Kailahun 45. Defence evidence to be rebutted: The Prosecution proposes to rebut the evidence of the First Accused Brima that he left Kono District after the ECOMOG Intervention (February 1998), but was arrested and brought to Daru in Kailahun District; that he was released and went to Kailahun Town where he was arrested again by Witness TF1 045; that he was beaten, stripped naked, and almost executed on “Mosquito’s” orders, but instead he was locked in a guard room and later released on “Mosquito’s” orders.48 46. Proposed Rebuttal Evidence: The Prosecution will rebut Brima’s evidence of the circumstances of his alleged initial arrest and alleged ill treatment on arrival in Kailahun and witnesses will explain how he was actually treated by the RUF and Sam Bockarie throughout his stay.49 47. We note that the Prosecution led evidence during its case-in-chief regarding the treatment of the First Accused in Kono and Kailahun Districts, including Brima’s arrest in Kailahun District by members of the RUF;50 his treatment and arrest by Issa Sesay in Kailahun District.51 In particular, TF1 045 testifĳied that Brima was arrested at Bedu and that Issa Sesay disarmed him and his security offfĳicers and that he was stripped and that diamonds were taken from him.52 In addition, several Prosecution witnesses mentioned that Brima was beaten and humiliated by Mosquito.53 48. We fĳind that the proposed rebuttal evidence in this category involves matters already addressed and presented in the Prosecution’s case-in-chief. The evidence sought to be rebutted, while in direct contrast to the Prosecution

47 Prosecutor v. Dario Kordic and Cerkez, Case No. IT-95-14/2, Oral Decision of 18 October 2000, T26647; see also Prosecutor v. Limaj et al., Case No. IT-03-66-T, Decision on Prosecution’s Motion to Admit Rebuttal Statements via Rule 92bis, 7 July 2005, para. 6; Celebici Appeal Judgment, para. 275. 48 Transcript 8 June 2006, pp. 49-54. 49 The Prosecution proposes to call three witnesses in this regard. 50 Witness TF1 045, Transcript 19 July 2005, pp. 98-100; Witness TF1 167, 19 September 2005, pp. 61-62; Witness TF1 334, Transcript 20 June 2005, pp. 14-15. 51 Witness TF1 045, Transcript 19 July 2005, pp. 98–99. 52 Witness TF1 045, Transcript 19 July 2005, pp. 98–99. 53 Witness TF1-334, Transcript 19 May 2005, p. 14; Witness TF1 334, Transcript 20 June 2005, pp. 12-15. 858 part ii case-in-chief, cannot be said to be “fresh evidence arising directly ex improviso during the presentation of the Defence case that could not reasonably have been anticipated.” We uphold the Defence submissions that the proposed rebuttal evidence does not satisfy the criteria required for admission.

(b) Evidence relating to Brima’s Arrest at Baillu Crossing Point and move to Buedu 49. Defence evidence to be rebutted: The Prosecution proposes to rebut the evidence of the First Accused Brima that he was arrested again by Issa Sesay who took his belongings; that Mosquito ordered Brima’s death, but Sesay did not kill him; that Sesay brought Brima to Buedu, and that they met Mike Lamin on the way; and that Sesay handed Brima over to Mike Lamin, who brought Brima to Buedu and locked him in his (Lamin’s) house.54 The Prosecution also proposes to rebut the evidence of defence Witness DAB-059 that upon his arrival in Kailahun Town with Johnny Paul Koroma, the latter ordered that Brima be executed for being a coward; that Mike Lamin went out and arrested Brima; and that Brima was put in the dungeon in Buedu.55 50. Proposed rebuttal evidence: The Prosecution will rebut the evidence that Brima was arrested after a “second escape” and will instead prove that Brima was captured with diamonds and brought back to Kailahun. A Prosecution witness will rebut evidence that he and Issa received any orders from Sam Bockarie to kill Brima when he was captured and will explain his involvement with Brima in Kailahun. The proposed rebuttal evidence will explain about Brima’s stay in Kailahun and how Brima was treated in Kailahun.56 51. We note that the Prosecution led evidence in its case-in-chief regarding the capture of “Gullit” by Issa Sesay in Bendu; his being disarmed and searched for diamonds;57 and his being brought to Buedu in Kailahun District after his arrest, where Witness TF1-045 gave up his room in “Commander B’s” house for “Gullit.”58 There is further Prosecution evidence to the efffect that “Gullit” persuaded “Mosquito” to release him from Kailahun to send him to Kono District as an advisor to both the SLA and the RUF.59 52. In view of the evidence already on the record, we fĳind that the proposed rebuttal evidence in this category involves matters clearly addressed in the Prosecution’s case-in-chief. The Defence evidence sought to be rebutted, while

54 Transcript 8 June 2006, pp. 55–61. 55 Transcript 27 September 2006, pp. 71-75. 56 The Prosecution proposes to call two witnesses in this regard. 57 Witness TF1 045, Transcript 19 July 2005, pp. 98-100. 58 Witness TF1 045, Transcript 19 July 2005, pp. 99-100. 59 Witness TF1 334, Transcript 20 June 2005, p. 14. interlocutory decisions – trial chamber 859 in direct contrast to the Prosecution case-in-chief, cannot be said to be “fresh evidence arising directly ex improviso during the presentation of the Defence case that could not reasonably have been anticipated.” We uphold the Defence submissions that the proposed rebuttal evidence does not satisfy the criteria required for admission.

(c) Evidence relating to Brima’s Interviews in Buedu 53. Defence evidence to be rebutted: The Prosecution proposes to rebut the evidence of the First Accused Brima that he was removed from Mike Lamin’s house and placed in a dungeon for two weeks, and that during this time Brima was interviewed twice.60 54. Proposed rebuttal evidence: The Prosecution will rebut the suggestion that Brima was ever interviewed as he claims and Prosecution witnesses will explain how Brima was treated throughout his stay in Buedu and Kailahun and give evidence of roughly when he left Kailahun.61 55. We note that the Prosecution led evidence in its case-in-chief regarding “Gullit’s” stay at “Commander B’s” house in Buedu for some weeks.62 Prosecution witnesses also testifĳied as to the time Brima left Kailahun District and the time he arrived in Kono District.63 As regards the proposed rebuttal evidence to disprove the Defence evidence that Brima was placed in a dungeon for two weeks, many Prosecution witnesses who testifĳied in-chief placed Brima at other locations during the relevant time period.64 56. In view of the evidence already on the record, we fĳind that the proposed rebuttal evidence in this category involves matters already addressed in the Prosecution’s case-in-chief. The Defence evidence sought to be rebutted, while in direct contrast to the Prosecution case, cannot be said to be “fresh evidence arising directly ex improviso during the presentation of the Defence case that could not reasonably have been anticipated.” Furthermore, we do not think that the issue of whether or not Brima was ever interviewed in Buedu is of signifĳicant probative value to the determination of his guilt or innocence. Accordingly, we uphold the Defence submissions that the proposed rebuttal evidence does not satisfy the criteria required for admission.

60 Transcript 8 June 2006, pp. 61-64. 61 The Prosecution proposes to call two witnesses in this regard. 62 Witness TF1 045, Transcript 19 July 2005, pp. 98-99. 63 Witness TF1 334, 19 May 2005, pp. 7-10; Witness TF1 167, Transcript 15 September 2005, pp. 39-47. 64 Witness TF1 334, Transcript 19 May 2005, pp. 7-10, 14-15; Witness TF1 184, Transcript 27 September 2006, pp. 19-21; Witness TF1 167, Transcript 15 September 2005, pp. 39-47; Witness TF1 033, Transcript 11 July 2005, p. 9. 860 part ii

(d) Evidence relating to Brima’s meeting with Johnny Paul Koroma and the latter’s arrest 57. Defence evidence to be rebutted: The Prosecution proposes to rebut the evidence of the First Accused Brima that he was taken to “Mosquito’s” house where he met Johnny Paul Koroma (JPK); that JPK was arrested and that Brima was locked in the dungeon, and later taken to Mike Lamin’s house where he stayed until June 1998.65 The Prosecution also proposes to rebut the evidence of Defence Witness DAB 059 that Mosquito ordered JPK’s arrest; that JPK was arrested; and that while in prison, witness DAB 059 heard that Brima was in the dungeon.66 58. Proposed rebuttal evidence: Prosecution witnesses will explain the true treatment of Brima whilst in Buedu and Kailahun and will disprove Brima’s version of events surrounding the arrest of JPK and will prove that Brima was not present at this time. The Prosecution will also disprove Brima’s assertion that he was detained in a dungeon for two weeks before being taken to Mike Lamin’s house.67 59. As mentioned above, the Prosecution led evidence in its case-in-chief regarding “Gullit’s” stay in the house of “Commander B” in Buedu68 and his treatment there and at Kaliahun.69 The Prosecution also led evidence about the ill treatment of Johnny Paul Koroma by the RUF in Kailahun District.70 There was also evidence in the Prosecution case-in-chief that Brima was not present while Johnny Paul Koroma was arrested and humiliated by Sam Bockarie, Issa Sesay and other RUF fĳighters,71 but that he had only briefly met the RUF group that arrested Johnny Paul Koroma in Kailahun.72 Other Prosecution evidence led in its case-in- chief alleges that Brima did not stay in Kailahun as late as June 1998, but returned to Kono District earlier.73 60. In view of the evidence already on the record, we fĳind that the proposed rebuttal evidence in this category involves matters already addressed in the Prosecution’s case-in-chief. The Defence evidence sought to be rebutted, while in direct contrast to the Prosecution case, cannot be said to be “fresh evidence

65 Transcript 8 June 2006, pp. 64-71. 66 Transcript 27 September 2006, pp. 78-83. 67 The Prosecution intends to call three witnesses in this regard. 68 Witness TF1 045, Transcript 19 July 2005, pp. 98-99. 69 Witness TF1 334, Transcript 20 June 2005, p. 14. 70 Witness TF1 167, Transcript 19 September 2005, p. 62; Witness TF1 045, Transcript 19 July 2005, pp. 92-101; Witness 153, Transcript 23 September 2005, pp. 62-63; Witness TF1 334, Transcript, 20 May 2005, pp. 14, 40, 85. 71 Witness TF1 045, Transcript 19 July 2005, pp. 90-100. 72 Ibid. 73 Witness TF1 334, 19 May 2005, pp. 7-10; Witness TF1 167, Transcript 15 September 2005, pp. 39-47. interlocutory decisions – trial chamber 861 arising directly ex improviso during the presentation of the Defence case that could not reasonably have been anticipated.” Accordingly, we uphold the Defence submissions that the proposed rebuttal evidence does not satisfy the criteria required for admission.

(e) Evidence relating to Brima’s transfer to Kailahun Town and escape to Kono 61. Defence evidence to be rebutted: The Prosecution proposes to rebut the evidence of the First Accused Brima that he was transferred to Kailahun Town and locked in a cell until July 1998; that while there, he learned about Fonti Kanu and Foday Kally being killed by Mike Lamin for escaping to Liberia; and that Brima and Morris Kallon escaped from Kailahun to Kono.74 62. Proposed rebuttal evidence: Prosecution witnesses will explain the role that Fonti Kanu was playing with the RUF in Kailahun, and also who later killed him and why. The Prosecution will prove that Brima left Kailahun for Kono voluntarily and with the blessing of the RUF; that Brima was not locked up in a cell from June to July 1998; that the First Accused left Kailahun before July 1998 and was not an escapee; that Brima arrived in Kono a few months after the RUF/SLA retook Koidu Town at the end of February; that Brima arrived with supplies and was certainly not under arrest; and that Brima then took command of the troops from the Second Accused and they withdrew to Koinadugu where they reported to SAJ Musa.75 63. As noted above, the Prosecution led evidence in its case-in-chief relating to Brima’s treatment by the RUF while in Kailahun, as well as the timing and circumstances of his departure from Kailahun to Kono.76 The Prosecution evidence on record is in direct contrast to that of the Defence, suggesting that during June and July 1998 Brima was not in the location claimed by the Defence but elsewhere.77 As noted earlier in this Decision, the Prosecution, during its case-in-chief, ought to have reasonably anticipated this alibi defence since it was alluded to in Brima’s Pre-Trial Brief. There was also Prosecution evidence that upon the arrival of Brima in Kono District he took command from the Second Accused and that they withdrew to Koinadugu where they reported to SAJ Musa.78

74 Transcript 8 June 2006, pp. 77-78. 75 The Prosecution proposes to call fĳive witnesses in this regard. 76 Witness TF1 334, Transcript 20 June 2005, pp. 14, 15. 77 Witness TF1 334, Transcript 20 June 2005, pp. 14, 15; TF1 184, Transcript 27 September 2006, pp. 19-21; TF1 167, Transcript 15 September 2005, pp. 39-47. 78 Witness TF1 167, Transcript 15 September 2005, pp. 39-47; Witness TF1 184, Transcript 27 September 2005, pp. 19-21; Witness TF1 334, Transcript 19 May 2005, pp. 7-10; Witness TF1 033, Transcript 11 July 2005, p. 9. 862 part ii

64. With the exception of the proposed evidence concerning the role and death of Fonti Kanu, the proposed rebuttal evidence concerns matters in respect of which evidence has already been led in the Prosecution case-in-chief. Regarding the proposed rebuttal evidence pertaining to the role and death of Fonti Kanu, we are of the view that such evidence is not relevant to any of the counts in the Indictment or to the role of the Accused and thus does not have signifĳicant probative value to the determination of the guilt or innocence of the Accused. 65. Accordingly, we fĳind that the proposed rebuttal evidence in this category involves matters already addressed in the Prosecution’s case-in-chief. The Defence evidence sought to be rebutted, while in direct contrast to the Prosecution case, cannot be said to be “fresh evidence arising directly ex improviso during the presentation of the Defence case that could not reasonably have been anticipated.” We uphold the Defence submissions that the proposed rebuttal evidence does not satisfy the criteria required for admission.

(f) Evidence relating to Brima’s escape to Yarya 66. Defence evidence to be rebutted: The Prosecution proposes to rebut the evidence of the First Accused Brima that while in Kono, Morris Kallon told him that “Mosquito” had ordered Brima’s arrest, and that Brima escaped the next morning to Yarya.79 67. Proposed rebuttal evidence: The Prosecution will prove that there was no question of Brima escaping from the RUF in Kono, the day after his arrival there, and that in July 1998 Koidu was held by ECOMOG/CDF forces and not the RUF.80 68. Again the proposed rebuttal evidence seeks to contradict Brima’s alibi defence, fĳirst alluded to in his Pre-trial Brief, and expounded upon in his testimony, namely that he fled to Yarya around 8 July 1998 where he stayed with family until October 1998. There is already evidence led by the Prosecution in its case-in- chief putting the First Accused elsewhere in Kono District and describing his role there, including his retreat with the troops to Yarya.81 There is further Prosecution evidence as to why Brima left Kono District;82 and as to the “rebel forces” having to leave Kono District because they lost control over Kono to the ECOMOG in April 1998.83

79 Transcript 12 June 2006, pp. 17-18. 80 The Prosecution proposes to call three witnesses in that regard. 81 Witness TF1 334, Transcript 20 and 23 May 2005; Witness TF1-033, Transcript 11 July 2005, pp. 13-14. 82 Witness TF1 334, 19 May 2005, p. 9. 83 Witness TF1 033, 11 July 2005, p. 13. interlocutory decisions – trial chamber 863

69. Accordingly, we fĳind that the proposed rebuttal evidence in this category involves matters already addressed in the Prosecution’s case-in-chief. The Defence evidence sought to be rebutted, while in direct contrast to the Prosecution case, cannot be said to be “fresh evidence arising directly ex improviso during the presentation of the Defence case that could not reasonably have been anticipated.” We uphold the Defence submissions that the proposed rebuttal evidence does not satisfy the criteria required for admission. Alex Tamba Brima’s Alibi during the Yarya Period (July 1998 – September 1998)

(g) Evidence relating to Brima’s stay at Yarya 70. Defence evidence to be rebutted: The Prosecution proposes to rebut the evidence of the First Accused Brima that he arrived in Yarya and hid in the bush with his family until September 1998; and that he never went to Mansofĳinia, Karina, Mateboi, Bornoya, Mayomba, Ndarra, Mandaha, Kambia, or Rosos.84 The Prosecution also proposes to rebut the evidence of Defence Witness DAB 111 that Brima arrived in the rainy season and stayed for a few months;85 and of Defence Witness DAB 109 that Brima stayed in Yarya at least a month-and-a-half.86 71. Proposed rebuttal evidence: The Prosecution will disprove Brima’s claim that he spent three months in hiding in Yarya. The Prosecution will instead, prove that the First Accused commanded along with the Second Accused and the Third Accused an SLA troop through Bombali District which attacked Karina and other villages en route and set up base camp at Rosos; that further crimes were committed during their stay at Rosos under Brima; that at Rosos Brima was in command; that the troops moved from Rosos when it was subjected to ECOMOG air attack, to Col. Eddie Town; that Brima remained in command of the troops at Col. Eddie Town until SAJ Musa arrived, at which time Brima handed over command to SAJ Musa; that Brima was in Rosos and was in command at Rosos and that there were laws which needed to be obeyed.87 72. The Prosecution will prove further that Brima did not stay for a long period in Yarya and only passed through with his troops;88 and will identify Brima and the Second Accused as two of the commanders who attacked Karina and Bonoya.89 The Prosecution will prove further that Prosecution Witness TF1 360 travelled with Commander “O Five” on SAJ Musa’s orders from Koinadugu to link up with

84 Transcript 12 June 2006, pp. 68, 74. 85 Transcript 27 September 2006, pp. 29-30. 86 Transcript 28 September 2006, p. 101. 87 The Prosecution proposes to call one witness in this regard. 88 The Prosecution proposes to call one witness in this regard. 89 The Prosecution proposes to call one witness in this regard. 864 part ii

Brima at Col. Eddie Town; that Commander “O Five” did not go to Yarya and capture Brima; that they did not take Brima with them under arrest; and that when they reached Col. Eddie Town with “O Five,” Brima was the commander there.90 73. Once again the Prosecution seeks to disprove Brima’s alibi defence in relation to crimes committed in various places during the period 8 July to October 1998,91 by adducing rebuttal evidence showing that the First Accused was in fact criminally responsible for crimes committed in those places during that period, together with the Second and Third Accused. As noted earlier, the Defence evidence that Brima fled to Yarya and hid with his family until September 1998 cannot be said to have arisen for the fĳirst time during the Defence case, nor can the Prosecution claim that it could not reasonably have been anticipated, in view of the notice of alibi in the Brima Pre-Trial brief. We note that much of the proposed rebuttal evidence, such as the command responsibility of the three Accused for the crimes committed in Bombali District and on the way to Rosos, the crimes committed while in Rosos, and the attacks on Karina and Bonoya, goes to matters that form a fundamental part of the case which the Prosecution is required to prove as part of its case-in-chief.92 As earlier stated, evidence of that nature must be brought as part of the Prosecution case-in-chief and not in rebuttal. 74. We note further that the Prosecution in its case-in-chief, has already adduced a substantial amount of evidence relating not only to the period and locations mentioned by Brima and Defence Witnesses DAB 111 and DAB 109 in their respective testimonies, but also to a large extent, the matters alluded to in the proposed rebuttal evidence. For example, the Prosecution led evidence that during the rainy season in 1998 (the period Brima is said to have been in hiding in Yarya) he in fact was commanding troops present in Koinadugu and Bombali District93 and that before Brima led the troops to Camp Rosos in Bombali District he met with SAJ Musa and that they agreed that Brima should fĳind a base.94 The Prosecution also led evidence that after that meeting Brima announced to his troops that they would go back to Freetown;95 and that he led the troops through Koinadugu and Bombali District until they reached Camp Rosos96 and that the Second and Third

90 The Prosecution proposes to call one witness in this regard. 91 Defence Pre-Trial Brief for Alex Tamba Brima, para. 28(e) and Brima’s testimony at Transcript 12 June 2006, pp. 68, 74. 92 See Further Amended Consolidated Indictment, paras. 24, 27, 30, 38, 48, 54, 62, 70, 78. 93 Witness TF1 184, Transcript 27 September 2005, pp. 19-20; Witness TF1 167, Transcript 15 September 2005, pp. 39-48; TF1 153, Transcript 22 September 2005, p. 60. 94 Witness TF1 184, Transcript 27 September 2005, pp. 19-20; Witness TF1 167, Transcript 15 September 2005, pp. 39-48; TF1 153, Transcript 22 September 2005, p. 60. 95 Witness TF1 033, Transcript 11 July 2005, pp. 14-15. 96 Witness TF1 334, Transcript 23 May 2005, pp. 41-110; Witness TF1 334, Transcript 24 May 2005, 1-106; Witness TF1 167, Transcript 15 September 2005, p. 59; Witness TF1 033, Transcript, 11 July 2005, pp. 18-20, 22. interlocutory decisions – trial chamber 865

Accused were second and third in command respectively.97 Evidence was also led by the Prosecution that crimes were committed while the troops were based at Camp Rosos under the command of Brima.98 There was also Prosecution evidence that Commander “O-Five” only arrived at Colonel Eddie Town at a later time on orders of SAJ Musa99 and that Brima was commander of the troops at that time100 and that “O-Five” actually arrested Brima at Colonel Eddie Town.101 75. Accordingly, we fĳind that the proposed rebuttal evidence in this category involves matters already addressed in the Prosecution’s case-in-chief. The Defence evidence sought to be rebutted, while in direct contrast to the Prosecution case, cannot be said to be “fresh evidence arising directly ex improviso during the presentation of the Defence case that could not reasonably have been anticipated.” We uphold the Defence submissions that the proposed rebuttal evidence does not satisfy the criteria required for admission.

(h) Evidence relating to Brima’s arrest by “O-Five” 76. Defence evidence to be rebutted: The Prosecution proposes to rebut the evidence of the First Accused Brima that “O-Five” came to Yarya from Kurubonla and arrested him; and that Brima was then taken with the troops to Col. Eddie Town.102 The Prosecution also proposes to rebut the evidence of Defence Witness DAB 111 that he heard of Brima’s arrest;103 of Defence Witness DAB 109 that four people came to Yarya asking for Brima and that they took him along with them;104 and of Defence Witness DAB 156 that he left Kurubonla with “O-Five’s” group; that at Yarya he heard that Brima was arrested, and that they went to Col. Eddie town.105 77. Proposed Rebuttal Evidence: The Prosecution will prove that Brima was never arrested by “O-Five” from his village at Yarya.106 78. The Prosecution seeks to disprove Brima’s defence that while with the troops that went to Col. Eddie Town he was under arrest and consequently not in

97 Witness TF1 334, Transcript 23 May 2005, p. 107; Witness TF1 334, Transcript 24 May 2005, pp. 5, 87. 98 Witness TF1 334, Transcript 23 May 2005, pp. 104-105; Witness TF1 334, Transcript 24 May 2005, pp. 3-5; Witness TF1 033, Transcript 11 July 2005, pp. 25, 32. 99 Witness TF1 033, Transcript 11 July 2005, pp. 34-36; TF1 334, Transcript 25 May 2005, p. 5; Witness TF1 167, Transcript 15 September 2005, p. 74. 100 Witness TF1 334, Transcript 25 May 2005, p. 4-48; Witness TF1 167, Transcript 15 September 2005, pp. 72-74; TF1 033, Transcript 11 July 2005, pp. 32-38. 101 Witness TF1 167, Transcript 15 September 2005, pp. 75-77. 102 Transcript, 12 June 2006, pp. 46-50. 103 Transcript, 27 September 2006, p. 29. 104 Transcript, 28 September 2006, pp. 86-88. 105 Transcript, 29 September 2006, pp. 50-54. 106 The Prosecution proposes to call three witnesses in this regard. 866 part ii command or control of those alleged to have committed crimes en route, presumably by adducing rebuttal evidence showing that the First Accused was in fact in command or control of the troops en route to Col. Eddie Town and therefore criminally responsible for crimes committed during that period. In that regard, the Prosecution has already adduced evidence in its case-in-chief that “O-Five” arrested Brima in Colonel Eddie Town and not in Yarya;107 that SAJ Musa ordered “O-Five” to locate Brima and that it was in Colonel Eddie Town that O-Five met Brima and his troops.108 79. Accordingly, we fĳind that the proposed rebuttal evidence in this category involves matters already addressed in the Prosecution’s case-in-chief. The Defence evidence sought to be rebutted, while in direct contrast to the Prosecution case, cannot be said to be “fresh evidence arising directly ex improviso during the presentation of the Defence case that could not reasonably have been anticipated.” We uphold the Defence submissions that the proposed rebuttal evidence does not satisfy the criteria required for admission. Alex Tamba Brima’s Alibi during the Freetown Invasion (October 1998 – January 1999)

(i) Evidence relating to Brima’s detention at Col. Eddie Town and march to Freetown 80. Defence evidence to be rebutted: The Prosecution proposes to rebut the evidence of the First Accused Brima that he and other honourables were under detention in Col. Eddie Town; that they remained under detention as the troops marched from Col. Eddie Town towards Freetown, and that Brima was detained until Goba Water.109 The Prosecution also proposes to rebut the evidence of Defence Witness DAB 156 that he saw Brima in detention at Col. Eddie Town and that Brima was under detention from Col. Eddie Town to Waterloo.110 81. Proposed rebuttal evidence: The Prosecution will prove that the First Accused, the Second Accused, the Third Accused, and Woyo were not under arrest the whole time at Col. Eddie Town; that Brima was not under arrest when the troops left Col. Eddie Town; that he was second in command to SAJ Musa until SAJ Musa’s death. Prosecution witnesses will testify as to who handed over the muster parade to SAJ Musa at Col. Eddie Town; who the prisoners were at that time; what, if anything, SAJ said about them, and who was second in command.111

107 Witness TF1 167, Transcript 15 September 2005, pp. 75-77. 108 Witness TF1 033, Transcript 11 July 2005, pp. 34-36; TF1 334, Transcript 25 May 2005, p. 5; Witness 167, Transcript 15 September 2005, p. 74. 109 Transcript, 13 June 2006, p. 16 and 15 June 2006, p. 15. 110 Transcript, 29 September 2006, pp. 55-61 and 84-85. 111 The Prosecution proposes to call two witnesses in this regard. interlocutory decisions – trial chamber 867

82. The Prosecution seeks to disprove the Defence case that while with the troops at Col. Eddie Town and en route to Freetown, the First Second and Third Accused were under arrest and consequently not in command or control of those alleged to have committed crimes during that period. The proposed rebuttal evidence would prove that the First, Second and Third Accused although briefly detained, were released and were in fact willing participants and in command or control of the troops at Col. Eddie Town and therefore criminally responsible for crimes committed during that period. 83. We note again that much of the proposed rebuttal evidence, such as the command responsibility of the three Accused for the crimes committed in Col. Eddie Town, its environs and en route to Freetown goes to matters that form a fundamental part of the case which the Prosecution is required to prove as part of its case-in-chief, rather than in rebuttal. We note that in this regard, the Prosecution already led substantial evidence in its case-in-chief pertaining to the command structure and control of the troops both at Col. Eddie Town and en route to Freetown. For example, Prosecution witnesses testifĳied that before SAJ Musa arrived at Col. Eddie Town, Brima was in command of the troops there and had himself selected that base;112 that Brima restructured the troops at Major Eddie Town before the arrival of “O-Five”;113 that “Junior Lion,” as battalion commander, reported to Brima;114 that when “O-Five” joined Brima’s troops, Brima was superior to “O-Five”; that Brima was overall commander and gave orders for specifĳic operations;115 that “Gullit” was commander when SAJ Musa arrived at Eddie Town; that Brima ordered the arrest of nine persons and of Junior Lion;116 that after the arrival of SAJ Musa, Brima handed over the command of the troops to him at a Muster Parade;117 that the troops were subsequently restructured and Brima became second in command,118 Kamara third in command, while Kanu remained Chief of Stafff and reported to Kamara.119 84. There was also evidence in the Prosecution case-in-chief relating to the arrest and temporary detention of the Honourables and the senior high command (Alex Tamba Brima, Ibrahim Bazzy, Five-Five, Hassan Papa Bangura, Bio, Woyoh,

112 Witness TF1-153, Transcript 22 September 2005, p. 70. 113 Witness TF1 334, Transcript 24 May 2005, pp. 87-89; Witness TF1 334, Transcript 25 May 2006, pp. 5-10. 114 Witness TF1 167, Transcript 15 September 2005, p. 72. 115 Witness TF1-033, Transcript 11 July 2005, pp. 37-38. 116 Witness TF1-153, Transcript 22 September 2005, pp. 74, 78. 117 Witness TF1-153, Transcript 22 September 2005, p. 82; Witness TF1 153, Transcript 23 September 2005, pp. 44, 45. 118 Witness TF1 334, Transcript 25 May 2005, p. 55; TF1-033, 11 July 2005, pp. 15, 41, 107; TF1-033, 12 July 2005, pp. 6, 7. 119 Witness TF1 334, Transcript 13 June 2005, pp. 4, 5. 868 part ii

Abdul Sesay) at Col. Eddie Town shortly before the arrival of SAJ Musa as well as their reinstatement into the movement.120 85. Accordingly, we fĳind that the proposed rebuttal evidence in this category involves matters already addressed in the Prosecution’s case-in-chief. The Defence evidence sought to be rebutted, while in direct contrast to the Prosecution case, cannot be said to be “fresh evidence arising directly ex 9111 improvise during the presentation of the Defence case that could not reasonably have been anticipated.” We uphold the Defence submissions that the proposed rebuttal evidence does not satisfy the criteria required for admission.

(j) Evidence relating to Brima’s escape at Goba Water/Freetown Invasion 86. Defence evidence to be rebutted: The Prosecution proposes to rebut the evidence of the First Accused, Brima that after the death of SAJ Musa at Benguema, the detainees (including the three Accused persons) were brought to Goba Water. In the confusion following SAJ Musa’s death, Brima escaped with the Third Accused and Woyoh to Makeni. Brima never went to Freetown during the January 1999 invasion.121 87. Proposed rebuttal evidence: The Prosecution will prove that Brima took over command of the SLA troops after SAJ Musa’s death at Benguema and led the attack on Freetown and was in command of the troops during their occupation of Freetown and subsequent withdrawal122 and that he requested reinforcements from the RUF whilst he was in Freetown.123 The Prosecution will adduce evidence proving who was responsible for crimes in Freetown, especially in relation to detainees released from Pademba Road Prison and National Stadium.124 88. We note that Brima’s alibi defence relating to his escape with the Third Accused at Goba Water was not specifĳically disclosed in any of the Defence Briefs. However, as earlier mentioned, the Defence did state in the Pre-Trial Brief for the First Accused that “it is specifĳically denied that the accused person was in command of AFRC/RUF, or any other factional units between 22nd December, 1998 and January 1999 as alleged.”125 Accordingly, the Prosecution should reasonably have anticipated Brima’s denial that he was responsible for alleged crimes committed during the period in question, in order to address the issue during its case-in-chief. We note also, that much of the proposed rebuttal evidence, such as command and control

120 Witness TF1 167, Transcript 15 September 2005, pp. 76-79. 121 Transcript, 13 June 2006, pp. 17-31. 122 The Prosecution proposes to call six witnesses in this regard. 123 The Prosecution proposes to call two witnesses in this regard. 124 The Prosecution proposes to call two witnesses in this regard. 125 See Defence Pre-Trial Brief for Alex Tamba Brima, para. 11. interlocutory decisions – trial chamber 869 of the troops that invaded Freetown in January 1999, joint criminal enterprise between the AFRC/RUF and responsibility for crimes committed during the invasion of and withdrawal from Freetown, goes to matters that form a fundamental part of the case which the Prosecution is required to prove in relation to the charges brought in the Indictment. As such, it should be adduced as part of the Prosecution case-in-chief rather than in rebuttal. In this regard, we note the proposed rebuttal evidence concerns matters that have already been clearly addressed in the Prosecution’s case-in-chief. 89. For example, the Prosecution led evidence that Brima took command of the SLA troops after the death of SAJ Musa;126 that he ordered an attack on Hastings,127 and ordered the troops to move towards Freetown;128 that FAT Sesay said over the radio (BBC) that the Freetown attack was commanded by “Yarya,” a nick name that Brima occasionally used as he came from a village by that name.129 90. Further evidence adduced during the Prosecution’s case-in-chief was to the efffect that on the way to Freetown, at York, and while at State House Brima communicated on a radio set with Sam Bockarie of the RUF and asked him for arms and ammunition to reinforce the SLA troops that had invaded Freetown.130 91. The Prosecution also led evidence that “Gullit” ordered the troops to Pademba Road Prison and subsequently 4000 persons were released;131 and that Witness TF1 334 and “Commander B” released the prisoners from the National Stadium.132 Prosecution Witness TF1 046 stated that the Third Accused Kanu later addressed the released persons from Pademba Road Prison and the National Stadium and told them that they “were all to work together” and that some of them were deployed along with the others.133 92. Accordingly, we fĳind that the proposed rebuttal evidence in this category involves matters that form a fundamental part of the case which the Prosecution is required to prove in relation to the charges brought in the Indictment. As such, it should be adduced as part of the Prosecution case-in-chief and not in rebuttal. We fĳind in any event, that such issues are already addressed in the Prosecution’s

126 Witness TF1 334, Transcript 13 June 2005, page 59; Witness TF1 153, Transcript 22 September 2005, p. 95; Witness TF1 184, Transcripts 27 September 2005, p. 56; Witness TF1 167, Transcript 16 September 2005, p. 11; TF1 033, Transcript 11 July 2005, p. 54; Witness TF1 033, Transcript 12 July 2005, p. 42. 127 Witness TF1 033, Transcript 11 July 2005, p. 57. 128 Witness TF1 033, Transcript 11 July 2005, p. 57. 129 Witness TF1 033, Transcript 13 July 2005, p. 56. 130 Witness TF1 334, Transcript 13 June 2005, p. 89; Witness TF1 334, Transcript 14 June 2005, p. 49; Witness TF1 153, Transcript 23 September 2005, p. 16. 131 Witness TF1 033, Transcript 11 July 2005, pp. 62-63. 132 Witness TF1 334, Transcript 14 June 2005, pp. 13, 14. 133 Witness TF1 046, Transcript 7 October 2005, pp. 113, 114 and 123. 870 part ii case-in-chief. The Defence evidence sought to be rebutted could reasonably have been anticipated as part of the general denial of guilt by the First Accused in his Pre-Trial Brief. We uphold the Defence submissions that the proposed rebuttal evidence does not satisfy the criteria required for admission.

D. Second Category: Proposed rebuttal evidence to refute Defence evidence that could not have been anticipated by the Prosecution Alex Tamba Brima – AFRC Period: Illness affecting performance of his functions as PLO2 (May 1997 – February 1998)

(a) Evidence relating to Brima’s position as Principal Liaison Offfĳicer II (PLO2) 93. Defence evidence to be rebutted: The Prosecution proposes to rebut the evidence of the First Accused, Brima that he is sufffering from hypertension and high blood pressure; that he started sufffering from these illnesses after the coup in 1997 and that although he was appointed as PLO2 in the AFRC Government and assigned to oversee a number of ministries, he never did so because he was too ill to perform his duties.134 The Prosecution also proposes to rebut the evidence of Defence Witness DAB-059 that he visited Brima in the hospital during the AFRC regime and that Brima told him that he went to Kono to cure himself.135 94. Proposed rebuttal evidence: The Prosecution will prove that Brima was not sufffering from any chronic illness and was able to fulfĳil his functions (as PLO2) in the AFRC Government and in the bush.136 95. The evidence of the First Accused referred to under this category presumably forms part of the Defence case in answer to specifĳic allegations in the Indictment.137 We note that the proposed rebuttal evidence seeks, inter alia, to disprove the fact that the First Accused ever sufffered or sufffers from any chronic illness or that he was visited while in hospital during the AFRC period or that he told anyone that he went to Kono to cure himself, all of which matters, in and of themselves, have no signifĳicant bearing on the determination of his guilt or innocence. What is relevant is the Prosecution allegation that the First Accused, whatever the state of his health, actually performed the role he is alleged to have performed in the Indictment, and whether by virtue of that role, he assumes the criminal responsibility alleged in the Indictment. In our view, these are matters that form a fundamental part of the case for the Prosecution which it is required to prove in-chief rather than in rebuttal.

134 Transcript, 6 June 2006, pp. 57-60. 135 Transcript, 27 September 2006, pp. 63-66. 136 The Prosecution proposes to call three witnesses in that regard. 137 See in particular Further Amended Consolidated Indictment, paras. 23, 24 and 25. interlocutory decisions – trial chamber 871

96. In this regard, we note that the Prosecution led a substantial amount of evidence in its case-in-chief relating to Brima’s position in the AFRC during the Junta period; his position as Council member138 and functions as PLO 2.139 For example, the Prosecution presented Exhibit P 34 (Minutes of Emergency Council Meeting of the AFRC) according to which Brima attended an AFRC Council meeting. This document further states that the PLOs should have “efffective control” over the Honourables. According to Exhibit P 69, Brima was present at another AFRC Council meeting at which Johnny Paul Koroma, the Chairman of the Council, mentioned the rice business of Brima’s wife. The Prosecution also led evidence that as PLO 2, Brima was a Supreme Council Member.140 According to Prosecution Witness TF1 334, the PLOs were responsible of taking day to day decisions of the Government, made policies for the Government and supervised and monitored the Ministries.141 97. With regard to Brima’s ability to fulfĳil his functions in “the bush,” the Prosecution led evidence in-chief that the PLO 2 oversaw the mining of diamonds in Kono District. According to Prosecution Witness TF1 153, “Mosquito” and Brima convened a meeting in the Town Hall in Koidu Town where they explained how the witness and others should work as “Mines Monitoring Offfĳicers.”142 Witness TF1 153 saw Brima for one week in Kono.143 The Prosecution led evidence that Witness TF1-153 was sent to Kono by SAJ Musa and Brima as Mines Monitoring Offfĳicer. Brima came to Kono and the witness explained to him about problems in Koidu Town, about the mining and about his outstanding salary.144 The Prosecution further led evidence that during the AFRC period, diamond mining was ongoing in various provinces, especially Kono District and Tongo Field. SAJ Musa was in overall control of mining but he assigned “Gullit” to oversee the mining in Kono District. “Gullit” was based in Koidu, Kono District and was under the supervision of the Secretary of State East who was Captain Eddy Kanneh.145 98. Accordingly, we fĳind that the proposed rebuttal evidence in this category involves matters that form a fundamental part of the case which the Prosecution is required to prove in relation to the charges brought in the Indictment. As such,

138 Exhibits P 7 and P 70. 139 Witness TF1 114, Transcript 14 July 2005, p. 119; Witness TF1 167, 15 September 2005, p. 20; Witness TF1 033, 11 July 2005, p. 4. 140 Witness TF1 334, Transcript 17 May 2005, pp. 2, 3; Witness TF1 046, Transcript 7 October 2005, pp. 78, 79; TF1 046 testifĳied that as PLO 2 Brima was a Supreme Council Member, and that Brima was present at a Security Council meeting at Cockerill Barracks in August 1997 (p. 83), and at an extraordinary meeting at State House (pp. 93, 94). 141 Witness TF1 334, Transcript 20 June 2005, pp. 90-93, 100. 142 Witness TF1-153, Transcript 23 September 2005, p. 60. 143 Witness TF1-153, Transcript 23 September 2005, p. 61. 144 Witness TF1-153, Transcript 22 September 2005, pp. 18-20. 145 Witness TF1-334, Transcripts 17 May 2005, pp. 52, 53. 872 part ii it should be adduced as part of the Prosecution case-in-chief and not in rebuttal. We fĳind in any event, such issues are already addressed in the Prosecution’s case- in-chief. The Defence evidence sought to be rebutted, while in direct contrast to the Prosecution evidence, could reasonably have been anticipated as part of the general denial of guilt by the First Accused. We uphold the Defence submissions that the proposed rebuttal evidence does not satisfy the criteria required for admission. Alex Tamba Brima – AFRC Period: Illness affecting his involvement in diamond-mining activities (May 1997 – February 1998)

(b) Evidence relating to Brima’s non-involvement in diamond-mining activities in Kono 99. Defence evidence to be rebutted: The Prosecution proposes to rebut the evidence of the First Accused, Brima that he visited Kono three times during the Junta period, namely in October 1997 to search for his mother; in December 1997 to get married; and in February 1998, to receive traditional medical treatment;146 and that he never oversaw diamond mining,147 and never mined diamonds himself.148 100. Proposed rebuttal evidence: The Prosecution will prove that Brima was fully engaged in overseeing diamond mining in Kono throughout the AFRC Government period and had no severe illness which prevented him from doing this;149 that he had full knowledge of the mining operations in Kono throughout the AFRC Government period and had no major health problems.150 101. The evidence of the First Accused referred to under this category forms part of the Defence case in answer to specifĳic allegations in the Indictment.151 The proposed rebuttal evidence seeks, inter alia, to disprove the fact that the First Accused “visited Kono three times during the Junta period, namely in October 1997 to search for his mother; in December 1997 to get married; and in February 1998, to receive traditional medical treatment” all of which matters, in and of themselves, have no signifĳicant bearing on the determination of his guilt or innocence. What is relevant is the allegation that the First Accused, whatever the state of his health, actually performed the role in relation to diamond mining he is alleged to have

146 Transcript, 8 June 2006, pp. 20-22. 147 Transcript, 8 June 2006, p. 26. 148 Transcript, 4 July 2006, p. 56. 149 The Prosecution proposes to call one witness in this regard. 150 The Prosecution proposes to call one witness in this regard. 151 See for example, Further Amended Consolidated Indictment, paras. 33, 34 and paras. under Count 13. interlocutory decisions – trial chamber 873 performed in the Indictment, and whether by virtue of that role, he assumes the criminal responsibility alleged in the Indictment. In our view, these are matters that form a fundamental part of the case for the Prosecution which it is required to prove in-chief rather than in rebuttal. 102. In this regard, we note that the Prosecution led a substantial amount of evidence regarding Brima’s role in relation to mining in Kono as shown above. 103. Accordingly, we fĳind that the proposed rebuttal evidence in this category involves matters that form a fundamental part of the case which the Prosecution is required to prove in relation to the charges brought in the Indictment. As such, it should be adduced as part of the Prosecution case-in-chief and not in rebuttal. We fĳind in any event, that these issues are already addressed in the Prosecution’s case-in-chief. The Defence evidence sought to be rebutted, while in direct contrast to the Prosecution evidence, could reasonably have been anticipated as part of the general denial of guilt by the First Accused. We uphold the Defence submissions that the proposed rebuttal evidence does not satisfy the criteria required for admission. Alex Tamba Brima – Never promoted above the rank of Corporal

(c) Evidence relating to Brima’s rank after the ECOMOG Intervention 104. Defence evidence to be rebutted: The Prosecution proposes to rebut the evidence of the First Accused, Brima that he remained a corporal throughout his military career, and was never promoted; and that as an ‘other-ranks’ soldier, Brima was unable to command anyone in the bush.152 105. Proposed rebuttal evidence: The Prosecution will prove that after the AFRC was removed from power after the (ECOMOG) Intervention the AFRC hierarchy continued when the AFRC transformed itself into a military organisation in the jungle; and that after the Intervention, the PLOs and Honourables retained command positions in the bush.153 106. The evidence of the First Accused referred to under this category forms part of the Defence case in answer to specifĳic allegations that he commanded the AFRC/RUF forces alleged to have committed the crimes specifĳied in the Indictment.154 We refer to the Defence Pre-Trial Brief for Tamba Alex Brima which states that “Tamba Brima retired from the Army in 2001 having risen to the rank of Corporal and not Stafff Sergeant as stated by the Prosecution”155 and that “as a

152 Transcript, 8 June 2006, pp. 12, 60 and 28 June 2006, p. 57. 153 The Prosecution proposes to call three witnesses in that regard. 154 See Further Amended Consolidated Indictment, paras. 2, 22, 23, 24, 27 etc. 155 Defence Pre-Trial Brief for Alex Tamba Brima, para. 6. 874 part ii

Corporal, a junior rank in the military hierarchy, Tamba Brima could not be said to be one of those who bears the greatest responsibility. It is submitted in the fĳirst instance that the Accused therefore falls outside the jurisdiction of the Court.”156 In light of the above disclosure, the Prosecution cannot claim that the evidence sought to be rebutted “arose directly ex improviso during the presentation of the Defence case- in-chief and could not, despite the exercise of reasonable diligence, have been foreseen.” 107. Furthermore, the proposed rebuttal evidence seeks to establish that notwithstanding its removal from power, the AFRC transformed itself into a military organisation in the jungle and that it maintained its military hierarchy, and that the Principal Liaison Offfĳicers and ‘Honourables,’ including the three Accused persons, retained command positions. In our view, these are clearly matters that form a fundamental part of the case for the Prosecution which it is required to prove in-chief rather than in rebuttal. We note, in any event, that the Prosecution already led a substantial amount of evidence in this regard. For example, the Prosecution led evidence in its case-in-chief that Brima was a Stafff Sergeant in the AFRC gov- ernment157 and later promoted himself to the rank of Brigadier;158 that he became Commander-in-Chief of the troops after the death of SAJ Musa and held the rank of Major General.159 108. Accordingly, we fĳind that the proposed rebuttal evidence in this category involves matters that form a fundamental part of the case which the Prosecution is required to prove in relation to the charges brought in the Indictment. As such, it should be adduced as part of the Prosecution case-in-chief and not in rebuttal. We fĳind in any event, that these issues are already addressed in the Prosecution’s case-in-chief. The Defence evidence sought to be rebutted, while in direct contrast to the Prosecution evidence, could reasonably have been anticipated as part of the Defence case. We agree with the Defence submissions that the proposed rebuttal evidence does not satisfy the criteria required for admission. Prison Incidents

(d) Evidence relating to Brima being forced to sign a ledger 109. Defence evidence to be rebutted: The Prosecution proposes to rebut the evidence of the First Accused, Brima that at the SSD Headquarters John Petrie took Brima’s belongings; that later, while at CID, Brima inquired about the things

156 Defence Pre-Trial Brief for Alex Tamba Brima, para. 7. 157 Exhibits P 7 and P 70. 158 Witness TF1-033, 12 July 2005, p. 21; Witness TF1 334, Transcript 20 May 2005, p. 88. 159 Witness TF1 184, Transcript 27 September 2005, p. 56. interlocutory decisions – trial chamber 875 that were taken; that at CID, Brima met John Petrie and John Berry, and they placed Brima under gunpoint, roughed him up, and forced him to sign the ledger titled “Tamba Brima Gullit.”160 110. Proposed rebuttal evidence: The Prosecution simply states that it will rebut this version of events.161 111. The evidence of the First Accused referred to under this category forms part of the Defence case in as far as it calls into question the identity of the person referred to in the Indictment as “Alex Tamba Brima.” We refer to the Defence Pre- Trial Brief for Tamba Alex Brima which states that the First Accused “does not accept the name ‘Alex’ used by the Prosecution as he has never been so named, nor does he accept that he was ever nicknamed ‘Gullit.’”162 Accordingly, the Prosecution cannot claim that the evidence sought to be rebutted “arose directly ex improviso during the presentation of the Defence case and could not, despite the exercise of reasonable diligence, have been foreseen.” Moreover, we do not think that issues relating to any personal inquiries that the First Accused might have made while on remand or his treatment whilst on remand are matters that have signifĳicant bearing on the determination of his guilt or innocence. In any event, we note that the Prosecution already led evidence in its case-in-chief which is in contrast to the Defence evidence, namely, that Brima was beaten during his arrest in Juba by the Sierra Leone Police;163 that he complained to John Petrie about the fact that he was beaten at the Operational Services Department (OSD) Headquarters;164 that “Gullit” gave his identifĳication data voluntarily and gave his name as “Tamba Brima” and responded to his nickname “Gullit.” 165 112. Accordingly, we fĳind that the proposed rebuttal evidence in this category involves matters that are already addressed in the Prosecution’s case-in-chief. The Defence evidence sought to be rebutted, while in direct contrast to the Prosecution evidence, could reasonably have been anticipated as part of the Defence case. We agree with the Defence submissions that the proposed rebuttal evidence does not satisfy the criteria required for admission.

(e) Evidence relating to the special treatment of detainees willing to testify 113. Defence evidence to be rebutted: The Prosecution proposes to rebut the evidence of the First Accused, Brima that while at Pademba Road Prison, he was

160 Transcript, 16 June 2006, pp. 36-40. 161 The Prosecution proposes to call one witness in this regard. 162 Defence Pre-Trial Brief for Alex Tamba Brima, para. 5. 163 Witness John Petrie, Transcript 5 October 2005, pp. 70-73. 164 Witness John Petrie, Transcript 5 October 2005, p. 78. 165 Witness John Petrie, Transcript 5 October 2005, p. 76. 876 part ii taken to a reception where he met with John Berry, John Petrie, and Commissioner Gbekie, who offfered him money to testify against Johnny Paul Koroma, but he did not take it.166 114. Proposed rebuttal evidence: The Prosecution will rebut this version of events and rebut the fact that the Offfĳice of the Prosecutor of the Special Court for Sierra Leone “was not enticing people to lie against the Accused for special treatment” (sic).167 115. The evidence of the First Accused referred to in this category presumably forms part of the Defence case in as far as it calls into question the credibility of the Prosecution witnesses and investigators. We note that the proposed rebuttal evidence seeks merely to reinforce the credibility of Mr. John Petrie, a Prosecution witness and Mr. John Berry, a Special Court investigator. As such, we fĳind that the proposed rebuttal evidence in this category does not satisfy the criteria required for admission.

V. Conclusion

116. It follows from the foregoing that this is an appropriate case for the exercise of our discretion to preclude the presentation of the proposed rebuttal evidence. Consequently, the Prosecution’s application for protective measures for its proposed rebuttal witnesses is rendered redundant.

VI. Disposition

FOR THE ABOVE REASONS, THE TRIAL CHAMBER DISMISSES the Motion in its entirety. Done at Freetown, Sierra Leone, this 14th day of November 2006.

166 Transcript 16 June 2006, pp. 25-27 and 6 July 2006, pp. 73-75. 167 The Prosecution proposes to call two witnesses in this regard. TRIAL CHAMBER II

Before: Justice Richard Lussick, Presiding Judge Justice Teresa Doherty Justice Julia Sebutinde Registrar: Lovemore G. Munlo, SC Date: 15 November 2006 PROSECUTOR Against Alex Tamba Brima Brima Bazzy Kamara Santigie Borbor Kanu (Case No.SCSL-04-16-T)

DECISION ON CONFIDENTIAL MOTION TO VARY PROTECTIVE MEASURES

TRIAL CHAMBER II (“Trial Chamber”) of the Special Court for Sierra Leone (“Special Court”), composed of Justice Richard Lussick, Presiding Judge, Justice Teresa Doherty and Justice Julia Sebutinde; SEISED of the Confĳidential Prosecution Motion to Vary Protective Measures, fĳiled on 18 October 2006 (“Motion”); NOTING the Joint Defence Response to the Motion, fĳiled on 20 October 2006 (“the Response”), wherein the Defence submits that they do not oppose the Prosecution Motion; NOTING FURTHER that the Motion was fĳiled confĳidentially, even though no identifying data of any witness was disclosed; RECALLING the Order Changing Venue of Proceedings dated 19 June 20061 in which the President of the Special Court found, inter alia, that “the proceedings against Mr. Taylor should be conducted by the Special Court for Sierra Leone sitting at The Hague, the Netherlands and using facilities provided by the International Criminal Court”2 and authorised Trial Chamber II and the Appeals Chamber “to exercise their functions away from the seat of the Special Court for the purposes of conducting the pre-trial proceedings, trial and any appeal of Charles Ghankay Taylor at the International Criminal Court facilities in The Hague, The Netherlands”;3 NOTING that the Motion seeks to vary the protective measures ordered in respect of all the Prosecution witnesses set to testify in the case of The Prosecutor v. Charles Ghankay Taylor in order to permit the Offfĳice of the Prosecutor (“OTP”) and the Witnesses and Victims Section of the Special Court (“WVS”) to provide documents and information that may reveal the names and other identifying data of a protected witness to government or other authorities for the purposes of facilitating his or her travel to and appearance before the Special Court sitting in The Hague, Netherlands;4 NOTING the Prosecution submissions that “in view of the transfer of the Accused Charles Taylor, to stand trial in The Hague, Prosecution witnesses may be required to travel to the Netherlands to testify, most likely via third countries. In order for WVS to be able to book tickets and obtain passports and visas for witnesses, it will be necessary for the identities of protected witnesses to be disclosed to airlines and governmental authorities of the various States including immigration authorities”5 and that “in order to put appropriate protective measures in place to

1 Document SCSL-03-01-PT-108. 2 Ibid., paragraph 11. 3 Ibid., paragraph 14. 4 Motion, paras. 7, 8, 9, 10, 11. 5 Motion, para. 7. interlocutory decisions – trial chamber 879 enhance or alter the specifĳic measures required by a witness, it may be necessary for the Prosecution and WVS to reveal the identity of a protected witness or his or her dependants to government or other authorities, or to provide to government or other authorities documents or other materials that may reveal the identity of a protected witness or his or her dependents” (sic);6 NOTING Rules 75(G) and (H) of the Rules of Procedure and Evidence (“the Rules”) which provide: (G) A party to the second proceedings seeking to rescind, vary or augment protective measures ordered in the fĳirst proceedings shall apply to the Chamber seized of the second proceedings. (H) Before determining an application under Sub-Rule (G) above, if the efffect of the change serves to decrease the protective measures granted to the victim or witness by the Chamber in the fĳirst proceedings, the Chamber seized of the second proceedings shall obtain all relevant information from the fĳirst proceedings, and may consult with any Judge who ordered the protective measures in the fĳirst proceedings, or the relevant Chamber. RECALLING that protective measures have previously been ordered in respect of witnesses or victims in earlier proceedings (“the fĳirst proceedings”) before this court7 and that pursuant to Rule 75(F) of the Rules of Procedure and Evidence of the Special Court (“Rules”), such protective measures shall continue to have efffect mutatis mutandis with respect to the same witnesses or victims testifying in the case of The Prosecutor v. Charles Ghankay Taylor (“the second proceedings”); RECALLING ALSO the protective measures ordered by the Trial Chamber in the second proceedings;8

6 Motion, para. 8. 7 These include the following orders, namely, Prosecutor v. Brima, SCSL-03-06-PT-36, Decision on the Prosecution’s Motion for Immediate Protective Measures for Witnesses and Victims and for Non-public Disclosure, 23 May 2003; Prosecutor v. Kamara, SCSL-03-10-PT-40, Decision on the Prosecution’s Motion for Immediate Protective Measures for Witnesses and Victims and for Non- public Disclosure, 23 October 2003; Prosecutor v. Kanu, SCSL-2003-13-PT-37, Decision on the Prosecutor’s Motion for Immediate Protective Measures for Witnesses and Victims and for Non- public Disclosure, 24 November 2003; Prosecutor v. Sesay, SCSL-03-05-PT-38, Decision on the Prosecutor’s Motion for Immediate Protective Measures for Witnesses and Victims and for Non- public Disclosure, 23 May 2003; Prosecutor v. Kallon, SCSL-03-07-PT-33, Decision on the Prosecutor’s Motion for Immediate Protective Measures for Witnesses and Victims and for Non-public Disclosure, 23 May 2003; Prosecutor v. Gbao, SCSL-03-09-PT-48, Decision on the Prosecutor’s Motion for Immediate Protective Measures for Witnesses and Victims and for Non-public Disclosure, 10 October 2003; Prosecutor v. Sesay et al., SCSL-04-15-T-180, Decision on Prosecution Motion for Modifĳications of Protective Measures for Witnesses, 6 July 2004; Prosecutor v. Brima et al., SCSL-04-16-T-259, Decision on the Urgent and Confĳidential Application to Vary Protective Measures Regarding Witnesses TF1-104 and TF1-081, 11 May 2005; Prosecutor v. Sesay et al., SCSL-04-15-T-286, Order on Protective Measures for Additional Witnesses, 24 November 2004. 8 Prosecutor v. Charles Ghankay Taylor, SCSL-03-01-PT-9, Decision on Confĳidential Prosecution Motion for Immediate Protective Measures for Witnesses and for Non-Public Disclosure and Urgent 880 part ii

CONSIDERING therefore that this motion is wrongly fĳiled in this case, since the present proceedings are not “the second proceedings” within the meaning of Rule 75(G) of the Rules; CONSIDERING FURTHER that the Trial Chamber has, in any event, issued its Decision on the Confĳidential Prosecution Motion to Vary Protective Measures,9 varying the existing protective measures for all witnesses set to testify at the trial of Charles Ghankay Taylor; PURSUANT to Rules 54, 75 of the Rules and Article 4(B) of the Practice Direction on Filing Documents before the Special Court for Sierra Leone; DISMISSES the Motion and ORDERS that it be classifĳied as “public” by the Court Management Section. Done at Freetown, Sierra Leone, this 15th day of November 2006.

Request for Interim Measures And on Confĳidential Prosecution Motion for Leave to Substitute a Corrected and Supplemented List as Annex A of the Confĳidential Prosecution Motion for Immediate Protective Measures for Witnesses and for Non-Public Disclosure and Urgent Request for Interim Measures, 5 May 2006; Prosecutor v. Charles Ghankay Taylor, SCSL-03-01-PT-120, Decision on Urgent Prosecution Motion for Immediate Protective measures for Witnesses and for Non-Public Disclosure, 15 September 2006 and Prosecutor v. Charles Ghankay Taylor, SCSL-03-01-PT-125, Decision on Defence Motion to set Aside and/or Reconsider Trial Chamber’s Decision on Urgent Prosecution Motion for Immediate Protective measures for Witnesses and for Non-Public Disclosure, 5 October 2006. 9 The Prosecutor v. Charles Ghankay Taylor, Case No. SCSL-03-1-PT, Decision on Confĳidential Prosecution Motion to Vary Protective Measures, 15 November 2006. TRIAL CHAMBER II

Before: Justice Richard Lussick, Presiding Judge Justice Teresa Doherty Justice Julia Sebutinde Registrar: Lovemore G. Munlo, SC Date: 23 November 2006 PROSECUTOR Against Alex Tamba Brima Brima Bazzy Kamara Santigie Borbor Kanu (Case No.SCSL-04-16-T)

DECISION ON PROSECUTION APPLICATION FOR LEAVE TO APPEAL DECISION ON CONFIDENTIAL MOTION TO CALL EVIDENCE IN REBUTTAL

Office of the Prosecutor: Defence Counsel for Alex Tamba Brima: Christopher Staker Kojo Graham James C. Johnson Glenna Thompson Karim Agha Nina Jørgensen Defence Counsel for Brima Bazzy Kamara: Andrew Daniels Mohamed Pa-Momo Fofanah Defence Counsel for Santigie Borbor Kanu: Geert-Jan Alexander Knoops Carry Knoops Agibola E. Manly-Spain 882 part ii

TRIAL CHAMBER II (“Trial Chamber”) of the Special Court for Sierra Leone (“Special Court”), composed of Justice Richard Lussick, Presiding Judge, Justice Teresa Doherty and Justice Julia Sebutinde; SEISED of the Prosecution Application for Leave to Appeal Decision on Confĳidential Motion to Call Evidence in Rebuttal, fĳiled on 17 November 2006 (“Motion”) wherein, pursuant to Rule 73(B) of the Rules of Procedure and Evidence (“Rules”) the Prosecution applies for leave to appeal against the Trial Chamber’s Decision on Confĳidential Motion to Call Evidence in Rebuttal dated 14 November 2006, on the grounds that: (i) on the issue of “exceptional circumstances,”1 the Trial Chamber’s stringent application of the law relating to the presentation of rebuttal evidence “will be a precedent that may be invoked in future trials before this court, and before other international criminal courts, and therefore is of general importance to international criminal law”;2 (ii) on the issue of “irreparable prejudice,” the Prosecution will sufffer prejudice “if it is unable to call relevant witnesses believed necessary for its case”; that “the standard for rebuttal evidence has been set so high that there may be an adverse impact on future cases”;3 and that “any attempt to call rebuttal evidence at the post-judgement phase of the trial would result in undue delay.”4 NOTING the Trial Chamber’s Order for Expedited Filing dated 17 November 2006; NOTING the Kanu Defence Response to Prosecution Application for Leave to Appeal Decision on Confĳidential Motion to Call Evidence in Rebuttal, fĳiled on 21 November 2006, in which it is submitted: (i) that the application by the Trial Chamber of its discretionary power under Rule 85(A)(iii) to allow or preclude the presentation of rebuttal evidence, within the parameters set out by both the ICTY and ICTR jurisprudence, does not in itself constitute exceptional circumstances within the meaning of Rule 73(B);5 (ii) that the Prosecution in its Motion failed to delineate any issue which qualifĳies as “some novel and substantial aspect of international criminal law for which no guidance can be derived from national criminal law systems;”6

1 See Motion paras. 7–15. 2 See Motion paras. 8-10. 3 See Motion para. 16. 4 See Motion, para. 17. 5 See Kanu Response, para. 2. 6 See Kanu Response, para. 4; see also Prosecutor v. Sesay, Kallon, Gbao, SCSL-04-15-T-357, Decision on Defence Application for Leave to Appeal Ruling of the 3rd February 2005 on the Exclusion of Statement of Witness TFI-141, 28 April 2005, paras. 25, 26. interlocutory decisions – trial chamber 883

(iii) that no irreparable prejudice would be caused to the Prosecution were the Motion to be refused;7 NOTING that neither the Brima Defence nor the Kamara Defence has fĳiled a response to the Motion; NOTING the Prosecution Reply to Kanu Response to Prosecution Application for Leave to Appeal Decision on Confĳidential Motion to Call Evidence in Rebuttal, fĳiled on 22 November 2006; RECALLING the Trial Chamber’s Decision on Confĳidential Motion to Call Evidence in Rebuttal dated 14 November 2006 (“Decision”) whereby the said Motion brought by the Prosecution was dismissed in its entirety; NOTING that Rule 73(B) of the Rules of Procedure and Evidence (“Rules”) provides that Decisions rendered on such motions are without interlocutory appeal. However, in exceptional circumstances and to avoid irreparable prejudice to a party, the Trial Chamber may give leave to appeal. Such leave should be sought within 3 days of the decision and shall not operate as a stay of proceedings unless the Trial Chamber so orders; NOTING therefore that Rule 73(B) of the Rules does not confer a general right of appeal, but that leave to appeal may be granted by the Trial Chamber in cases where the conjunctive conditions of exceptional circumstances and irreparable prejudice to a party are both satisfĳied; ADOPTING the restrictive test applied by Trial Chamber I that: “[T]he overriding legal consideration in respect of an application for leave to fĳile an interlocutory appeal is that the applicant’s case must reach a level of exceptional circumstances and irreparable prejudice. Nothing short of that will sufffĳice having regard to the restrictive nature of Rule 73(B) of the Rules and the rationale that criminal trials must not be heavily encumbered and consequently unduly delayed by interlocutory appeals”;8 CONSIDERING that the Appeals Chamber has ruled that “[i]n this Court, the procedural assumption is that trials will continue to their conclusion without delay or diversion caused by interlocutory appeals on procedural matters, and that any errors which afffect the fĳinal judgment will be corrected in due course by this Chamber on appeal”;9

7 See Kanu Response, p. 5, “In conclusion.” 8 Prosecutor v. Sesay, Kallon, Gbao, SCSL-2004-15-PT, Decision on the Prosecutor’s Application for Leave to File an Interlocutory Appeal Against the Decision on the Prosecution Motion for Joinder, 13 February 2004. 9 The Prosecutor v. Norman, Kondewa, Fofana, SCSL-2004-14-AR73, Decision on Amendment of the Consolidated Indictment, 16 May 2005, para. 43. 884 part ii

FINDING that: 1. taking into account that what constitutes ‘exceptional circumstances’ must necessarily depend on, and vary with, the circumstances of each case,10 the Decision does not create any precedent of general importance to the Special Court or to international law generally; 2. the Prosecution has not established that the Decision would cause such prejudice to the Prosecution case as could not be cured by the fĳinal disposal of the trial including post-judgement appeal; CONCLUDING THEREFORE that the criteria of exceptional circumstances and irreparable prejudice prescribed by Rule 73(B) have not been met; DISMISSES THE MOTION. Done at Freetown, Sierra Leone, this 23rd day of November 2006.

10 See Prosecutor v. Sesay, Kallon and Gbao, SCSL-04-15-T-357, Decision on Defence Application for Leave to Appeal Ruling of the 3rd of February, 2005 on the Exclusion of Statement of Witness TFI-141, dated 28 April 2005, para. 25, cited in Motion at para. 5. TRIAL CHAMBER II

Before: Justice Teresa Doherty, Presiding Judge Justice Richard Lussick Justice Julia Sebutinde Justice El Hadji Malick Sow, Alternate Judge Registrar: Binta Mansaray Case No.: SCSL-04-16-ES Date: 18 March 2011 PROSECUTOR Against Alex Tamba Brima Brima Bazzy Kamara Santigie Borbor Kanu (Case No.SCSL-04-16-ES)

DECISION ON PUBLIC WITH CONFIDENTIAL ANNEXES PROSECUTION MOTION FOR AN INVESTIGATION INTO CONTEMPT OF THE SPECIAL COURT FOR SIERRA LEONE

Office of the Prosecutor: Counsel for Suspected Persons: Brenda J. Hollis A. F. Serry Kamal James C. Johnson Leigh Lawrie Nathan Quick Office of the Principal Defender: Claire Carlton-Hanciles 886 part ii

TRIAL CHAMBER II (“Trial Chamber”) of the Special Court for Sierra Leone (“Special Court”); SEISED of the “Public with Confĳidential Annexes Prosecution Motion for an Investigation into Contempt of the Special Court for Sierra Leone,” fĳiled on 31 January 2011 (“Motion”)1 and the Corrigendum thereto, fĳiled on 1 February 2011;2 NOTING the “Public with Confĳidential Annex Submission of the Registrar Pursuant to Rule 33(B) Regarding the Prosecution Motion for an Investigation into Contempt of the Special Court for Sierra Leone,” fĳiled on 10 February 2011 (“Registrar’s Submission”);3 RECALLING the Trial Chamber’s “Order for Extension of Time,” dated 9 February 2011,4 wherein the Trial Chamber granted a Defence request for an extension of time for the fĳiling of the Defence response;5 NOTING the “Confĳidential, with Annexes I and II Defence Response to Urgent Prosecution Motion for an Investigation into Contempt of the Special Court for Sierra Leone,” fĳiled on 21 February 2011 (“Response”);6 NOTING ALSO the “Confĳidential Prosecution Reply to Confĳidential, with Annexes I and II Defence Response to Urgent Prosecution Motion for an Investigation into Contempt of the Special Court for Sierra Leone” (“Reply”), fĳiled on 28 February 2011;7 COGNISANT of the provisions of Article 17 of the Statute of the Special Court for Sierra Leone (“Statute”) and Rules 54, 75 and 77 of the Rules of Procedure and Evidence (“Rules”); HEREBY DECIDES AS FOLLOWS, based solely on the written submissions of the parties, pursuant to Rule 73(A) of the Rules;

I. Submissions

Motion 1. The Prosecution submits that it has received information that Samuel Kargbo, aka Sammy Ragga (“Ragga”), contacted at least one Prosecution Witness (TF1-334)

1 SCSL-04-16-ES -684. 2 SCSL-04-16-ES -685. 3 SCSL-04-16-ES -688. 4 SCSL-04-16-ES -687. 5 SCSL-04-16-ES -686. 6 SCSL-04-16-ES -689. 7 SCSL-04-16-ES -690. interlocutory decisions – trial chamber 887 and is attempting to contact other Prosecution witnesses8 to bribe, intimidate or interfere with these witnesses or attempt to do so in order to persuade the witnesses to lie and recant their testimony before the Court in the hope that this will result in the release of the three AFRC convicted prisoners Brima, Kamara and Kanu9 from prison in Rwanda (“AFRC convicts”).10 Ragga told TF1-334 that the AFRC convicts would pay money to Prosecution witnesses to lie and change their testimony. Further, he told him that a lawyer from Ghana would talk to Prosecution witnesses on behalf of one or more of the AFRC convicts in order to convince the witnesses to recant their testimony.11 Ragga said that these contacts were being made on the advice of Counsel representing the AFRC convicts, who told the convicts that if they could get key witnesses to recant their testimony, they could be released from prison or have their terms reduced.12 Ragga told the witness that the AFRC convicts would reward him fĳinancially if he recanted his testimony, that the convicts had sufffĳicient funds for “the project” and that Ragga also expected to ben- efĳit fĳinancially from “the deal.”13 Contacts with at least one Prosecution witness (TFI-334) persisted even after the witness refused the offfer of money in exchange for recantation.14 2. The information also indicates that Hassan Papa Bangura, aka Bomblast (“Bomblast”), a former member of the AFRC, also contacted at least one Prosecution witness (TFI-334), and is apparently working with Ragga to contact, bribe and intimidate former Prosecution witnesses.15 3. According to information received by the Prosecution, the AFRC convict Brima Bazzy Kamara, aka Bazzy (“Kamara”), also attempted to talk to at least one Prosecution witness (TFI-334), and that AFRC convict Santigie Borbor Kanu, aka 55 (“Kanu”) did talk to a Prosecution witness (TFI-334). Kanu indicated to the Prosecution witness that the AFRC convicts were counting on his assistance, which the witness took to mean that Kanu wanted him to lie and change his testimony. The information indicates that the AFRC convicts may also be attempting to, or already have, contacted other Prosecution witnesses.16

8 Witnesses who testifĳied for the prosecution in the case of The Prosecutor v. Brima, Kamara, Kanu, SCSL-04-16-T. 9 The three prisoners, Alex Tamba Brima, Santigie Borbor Kanu and Brima Bazzy Kamara were all convicted on 20 June 2007 by the Special Court, of war crimes and crimes against humanity in the case of The Prosecutor v. Brima et al, SCSL-04-16-T and are currently serving prison sentences in Kigali, Rwanda. 10 Motion, para. 7. 11 Motion, para. 9. 12 Motion, para. 11. 13 Motion, para. 10. 14 Motion, para. 9 and Confĳidential Annex B. 15 Motion, para. 8 and Confĳidential Annex B. 16 Motion, para. 10 and Confĳidential Annex B. 888 part ii

4. The Prosecution therefore submits that, in light of this information, there is “reason to believe” that Ragga, Bomblast, Kanu, Kamara, and other persons not yet identifĳied have engaged in contemptuous conduct in violation of Rules 77(A) and/ or (B).17 This conduct includes: (i) disclosure of information, including the identity of at least two protected Prosecution witnesses (TFI-334 and TFI-033) to third parties in knowing violation of the applicable protective measures orders, contrary to Rule 77(A)(ii);18 (ii) threatening, intimidating, offfering bribes to and/or “otherwise interfering” with Prosecution witnesses, contrary to Rule 77(A)(iv) and/or Rule 77(B);19 (iii) knowing and wilful interference with the administration of justice through breach of protective measures orders in violation of Rule 77(A)(iv).20 5. The Prosecution therefore requests that the Trial Chamber, pursuant to Rule 77(C)(iii), appoint experienced independent Counsel to urgently investigate this possible contempt of the Special Court.21 6. The Prosecution submits, as additional and potentially relevant information, a Memorandum which reports an alleged contact of former Prosecution wit- nesses22 by one of the RUF convicts.23 Finally, the Prosecution requests that, pending an investigation into the alleged conduct, the phone privileges of the AFRC convicts be suspended, or in the alternative, restricted and closely monitored to prevent the types of contact detailed above.24

Registrar’s Submission 7. The Registrar submits, in relation to the Prosecution Memorandum at Confĳidential Annex C of the Motion, that after the Prosecution reported the incident involving the RUF convict to the Registrar, the Registrar responded on 11 October 2010, indicating that the allegations were being taken very seriously. It also informed the Prosecution of the two immediate steps that the Registrar had taken to follow up on these allegations, namely, that it had instructed WVS to investigate the allegations and informed various high-level Rwandan offfĳicials in

17 Motion, para. 31. 18 Motion, paras. 1, 16, 22, 32. 19 Motion, paras. 1, 16, 23-26, 32. 20 Motion, paras. 27–28, 32. 21 Motion, paras. 1, 32. 22 Several witnesses that testifĳied for the Prosecution in the case of The Prosecutor v. Sesay, Kallon, Gbao, SCSL-04-15-T, were allegedly threatened by one of the persons convicted by the Special Court in that trial. 23 Motion, para. 29, referring to Memorandum, Confĳidential Annex C to the Motion. 24 Motion, para. 30. interlocutory decisions – trial chamber 889 the Prisons Service, including the Commissioner, General Rwandan Prisons Services, and the Director of Operations and Procedures, Rwanda Prisons Services, of these allegations and how seriously they were being taken.25 The Registrar also submitted that since October 2010, it had been in constant communication with the Commissioner General.26 The WVS investigation report is contained in Confĳidential Annex A to the Registrar’s Submission.

Response Length of Motion 8. In its Response, the Defence notes that the Motion itself is nine pages long, and Confĳidential Annex A, which includes information that is a substantive part of the Motion is another page and a half. The Defence therefore submits that, as the Motion is 11 pages long, it should be dismissed because it exceeds the page limits without the Prosecution having sought leave to do so in advance.27

Jurisdiction 9. The Defence submits that Trial Chamber II does not have jurisdiction over this matter. The Defence argues that the conduct complained of by the Prosecution does not concern either proceedings before a Trial Chamber or the Appeals Chamber, and that therefore Rule 77 is inapplicable. The Defence submits that the Witness and Victims section can adequately evaluate and address any potential threats to or “retaliation” against witnesses who have testifĳied before the Special Court.28 It further submits that just because Trial Chamber II is still convened in the case of Prosecutor v. Taylor, and/or because it has previously adjudicated the AFRC case, this does not make it a de facto residual trial chamber possessing the jurisdiction to hear allegations of contempt stemming from proceedings that have long since closed and/or are not formally under review.29 The Defence further submits that Rule 54, the general provision which authorizes a trial chamber to issue orders necessary for the purposes of an investigation, only has force during the pre-trial and trial phases of an ongoing proceeding.30

Merits 10. The Defence submits that TF1-334 testifĳied openly in the Taylor trial, and the Trial Chamber (without opposition from the Prosecution) rescinded any

25 Registrar’s Submission, paras. 5–8. 26 Registrar’s Submission, para. 8. 27 Motion, para. 3. 28 Response, paras. 4–5. 29 Response, para. 6. 30 Response, para. 6. 890 part ii applicable protective measures in their entirety. Moreover, it submits that this witness testifĳied openly in the Taylor trial about the fact that he had testifĳied (under the same TFI number) in the AFRC and RUF trials. The Defence therefore submits that neither Kamara or Kanu can be found to be in breach of disclosing this witness’ identity to Sammy Ragga and/or Bomblast.31 11. The Defence further submits that allegations that the identity of TFI-033 as a witness in the AFRC trial may have been disclosed are too vague to be credible. This witness testifĳied in open session but with the use of a pseudonym and voice distortion as ordered by Trial Chamber I. The Defence submits that to an informed observer of the proceedings such as Sammy Ragga or TF1-334, the information revealed openly during TFI-033’s testimony may have been sufffĳicient on its own to reveal his identity. The Defence further argues that there is no indication that Ragga would have known that TFI-033 was a protected witness, such that disclosure of his identity was in violation of a court order.32 12. The Defence submits that there is no evidence contained in Confĳidential Annex B of the Motion that Ragga, Bomblast, Kanu, Kamara or anyone else intimidated or attempted to intimidate TFI-334 or TFI-033. TF1-334 voluntarily met with or accepted phone calls from Ragga and Bomblast, and gave Ragga a ride around town in his car on two occasions. The Defence submits that the continued voluntary interaction between TF1-334 and Bomblast is not behaviour typical of someone who feels intimidated, and that had TFI-334 felt intimidated, one would have expected him to contact the Prosecution or WVS to complain immediately, instead of waiting until 9 December 2010. The Defence further submits that there is no indication that anyone ever talked to, much less intimidated or attempted to intimidate TF1-033, and that therefore allegations of intimidation are based solely on the Prosecution’s “subjective interpretations of otherwise normal events.”33 13. The Defence disputes the notion that there is any reason to believe that the suspects or any counsel advising the AFRC convicts have offfered any Prosecution witness a bribe in exchange for recanting testimony. It submits that the allegations by TF1-334 in relation to the offfer of bribes by Ragga are highly speculative, and that no money was actually paid to this witness.34 14. The Defence also alleges that the Prosecution allegations in relation to extensive phone communications between the AFRC convicts and the other suspects

31 Response, para. 7. 32 Response, para. 8. 33 Response, paras. 9-11, referring to Prosecutor v. Taylor, SCSL-03-01-T-1119, Decision on Public with Confĳidential Annexes A-J and Public Annexes K-O Defence Motion Requesting an Investigation into Contempt of Court by the Prosecutor and its Investigators, 11 November 2010 (“11 November 2010 Contempt Decision”), para. 102. 34 Response, paras. 12–13. interlocutory decisions – trial chamber 891 and Prosecution witnesses are not credible, as the SCSL Prisoner Handbook provides only for telephone contact with the prisoners’ families and not with non- family members.35 15. With respect to the Prosecution allegation that there is reason to believe that the suspects have knowingly and wilfully breached court orders by contacting TF1-334 without leave of the court, the Defence acknowledges that Trial Chamber II’s rescission of this witness’ protective measures in the Taylor trial does not alter the protective measures applicable to him from the fĳirst proceedings, including a no-contact provision. The Defence argues however, that “the Prosecution has not shown how a per se violation of a court order necessarily interferes with the administration of justice.”36 16. The Defence also submits that the information contained in Confĳidential Annex C of the Motion, in relation to an allegation about an RUF convict, is irrelevant to the present allegations.37 The Defence further submits that the urgent interim measures requested by the Prosecution are not feasible, as the Trial Chamber does not have the authority to issue orders to the Government of Rwanda, which is responsible for supervision of the use of the telephone.38

Reply Length of Motion 17. The Prosecution agrees that Annex A of the Motion could arguably be said to contain additional information that surpasses the defĳinition of “merely additional information.” The Prosecution proposes that rather than dismissing the Motion in its entirety, the Trial Chamber may either (i) consider that the Annex contains no inappropriate information and thus no issue arises; (ii) consider that the information noted by the Prosecution is inappropriate for the Annex, but that if the lines of text were added to the body of the motion do not exceed 10 pages (iii) ignore those portions of Annex A it considers contain more than additional information or (iv) disregard Annex A to the Motion and substitute Annex 2 of the Reply in which the arguably substantive parts have been removed.39

Jurisdiction 18. The Prosecution submits that the Defence arguments in relation to jurisdiction are without merit, arguing that as this Trial Chamber is the only Trial Chamber

35 Response, para. 14. 36 Response, para. 16. 37 Response, para. 17. 38 Response, para. 18. 39 Reply, para. 13. 892 part ii remaining in the Special Court, accepting the Defence’s argument would create a lacuna which provides impunity to prisoners or other individuals for violations of Rule 77 post appeal.40

Merits 19. The Prosecution does not dispute that the protective measures of TF1-334 were rescinded. However, it argues that its submissions with respect to the disclosure of information in violation of an order were made with respect to TF1-033 and/or other protective witnesses, and not TF1-334. The Prosecution submits that there is reason to believe that the AFRC convicts had disclosed the identity of TF1- 033 to third parties including Ragga, and that Ragga then disclosed this witness’ identity to TF1-334 and possibly others not yet identifĳied.41 20. The Prosecution submits that the Defence’s arguments regarding intimidation are without merit, as the jurisprudence of the ICTY indicates that it is immaterial whether the witness was actually intimidated, as long as the conduct was intended to interfere with the Tribunal’s due administration of justice.42 The Prosecution submits that the conduct gives reason to believe that there was intimidation or “otherwise interfering with a witness,” as the conduct was repeated and persistent, made in person and via the telephone on six diffferent days between 26 November and 16 December, and that many individuals, both named and unnamed were involved in the efffort to get TF1-334 and others to recant their testimony. It also submits that not only high level commanders but also high-level community leaders, such as the Chairman of the APC party in America, and the Vice President of Sierra Leone had agreed to give assistance.43 The Prosecution further submits that the clear requests made by the suspects were not normal events, nor do they involve “subjective interpretations of otherwise normal events” as alleged by the Defence.44 21. The Prosecution submits that the Trial Chamber has previously held that Rules 77(A)(iv) and 77(B) include the offfer of a bribe and do not require actual payment of the bribe or completion of the act.45 In addition, it submits that by way of Rule 77(B), an attempt to bribe also qualifĳies as contemptuous conduct. The Prosecution further submits that the Defence’s statement that there were no spe- cifĳic allegations as to who was to pay the money is incorrect.46

40 Reply, para. 3. 41 Reply, para. 4. 42 Reply, para. 5, referring to Prosecutor v. Brdjanin, IT-99-36-R77, Decision on Motion for Acquittal Pursuant to Rule 98bis Concerning Allegations against Milka Maglov, 19 March 2004 (“Brdjanin Decision”), para. 23. 43 Reply, para. 6. 44 Reply, para. 6. 45 Reply, para. 7. 46 Reply, paras. 7–8. interlocutory decisions – trial chamber 893

22. In relation to the Defence’s assertion that phone contact with the AFRC convicts is limited to family members, evidence from TF1-334 and several other sources indicates that they have been able to make calls to non-family members. The Prosecution submits that, as noted in Annex 1 of the Reply, RUF Convict Issa Sesay made a call to a reporter, and as indicated in Annex C of the Motion, TF1-274 informed investigators that RUF convict Augustine Gbao had called RUF commander Tom Sandy indicating that he would never forgive witnesses “who were responsible for his present predicament.”47 23. The Prosecution further submits that the urgent interim measures requested by the Prosecution are feasible as the Registrar could make a request to the Government of Rwanda to implement such measures if so directed by the Trial Chamber.48

II. Applicable Law

24. Rule 77 sets out the law and procedure for dealing with contempt of the Special Court. The relevant parts of Rule 77 provide: Rule 77: Contempt of the Special Court (A) The Special Court, in the exercise of its inherent power, may punish for contempt any person who knowingly and wilfully interferes with its administration of justice, including any person who: (i) being a witness before a Chamber, subject to Rule 90(E) refuses or fails to answer a question; (ii) discloses information relating to proceedings in knowing violation of an order of a Chamber; (iii) without just excuse fails to comply with an order to attend before or produce documents before a Chamber; (iv) threatens, intimidates, causes any injury or offfers a bribe to, or otherwise interferes with, a witness who is giving, has given, or is about to give evidence in proceedings before a Chamber, or a potential witness; (v) threatens, intimidates, offfers a bribe to, or otherwise seeks to coerce any other person, with the intention of preventing that other person from complying with an obligation under an order of a Judge or Chamber; or (vi) knowingly assists an accused person to evade the jurisdiction of the Special Court. (B) Any incitement or attempt to commit any of the acts punishable under Sub- Rule (A) is punishable as contempt of the Special Court with the same penalties.

47 Reply, para. 9. 48 Reply, para. 11. 894 part ii

(C) When a Judge or Trial Chamber has reason to believe that a person may be in contempt of the Special Court, it may: (i) deal with the matter summarily itself; (ii) refer the matter to the appropriate authorities of Sierra Leone; or (iii) direct the Registrar to appoint an experienced independent counsel to investigate the matter and report back to the Chamber as to whether there are sufffĳi- cient grounds for instigating contempt proceedings. If the Chamber considers that there are sufffĳicient grounds to proceed against a person for contempt, the Chamber may issue an order in lieu of an indictment and direct the independent counsel to prosecute the matter. […] (I) If a counsel is found guilty of contempt of the Special Court pursuant to this Rule, the Chamber making such fĳinding may also determine that counsel is no longer eligible to appear before the Special Court or that such conduct amounts to misconduct of counsel pursuant to Rule 46, or both. 25. The Appeals Chamber has stated that the standard of proof in determining whether an independent investigation should be ordered into a matter of contempt is: […] not that of a prima facie case, which is the standard for committal for trial. It is the diffferent and lower standard of “reason to believe” that an offfence may have been committed, which is the pre-condition for ordering an independent investigation.49 26. Notwithstanding the lower standard of proof, an allegation of contempt must be credible enough to provide a Judge or Trial Chamber with “reason to believe” that a person may be in contempt.50 27. Furthermore, any alleged misconduct should be brought to the attention of the Trial Chamber without undue delay.51

III. Deliberations

Preliminary Issues 1) Length of Motion 28. The Trial Chamber fĳinds that there are two portions of Annex A that contain substantive information that surpasses the “merely additional information” that

49 Prosecutor v. Brima, Kamara and Kanu, SCSL-04-16-AR77-315, Decision on Defence Appeal Motion Pursuant to Rule 77(J) on both the Imposition of Interim Measures and an Order Pursuant to Rule 77(C)(iii), 23 June 2005 (“AFRC Appeals Decision”), para. 17. 50 Prosecutor v. Taylor, SCSL-03-01-T-690, Confĳidential Decision on Confĳidential Prosecution Motion For an Investigation by Independent Counsel Into Contempt of the Special Court for Sierra Leone and for Urgent Interim Measures, 8 December 2008, para. 23, referring to AFRC Appeals Chamber Decision, para. 2. See also 11 November 2010 Contempt Decision, p. 20. 51 Prosecutor v. Taylor, SCSL-03-01-600, Confĳidential Decision on Prosecution Motions for Investigations into Contempt of the Special Court for Sierra Leone (SCSL-03-01-451; SCSL-03-01-452; interlocutory decisions – trial chamber 895 can properly be placed in an annex.52 However, it fĳinds that if these two portions were removed from Annex A and placed in the body of the Motion, the Motion would not exceed 10 pages. It therefore fĳinds that the Defence argument should be dismissed.

2) Jurisdiction 29. The Defence submits that the Trial Chamber does not have jurisdiction over this matter as the conduct complained of does not concern “proceedings.” The President of the Special Court, in determining that he did not have jurisdiction over the matter, has held that “the framework of Rule 77(C) to (I) […] envisages that proceedings under the Rule are to be conducted before Trial Chambers or judges thereof.”53 The President’s decision is exemplifĳied by Rule 77(A)(iv), which prohibits (inter alia) conduct that intimidates, offfers a bribe, or otherwise interferes with a witness who has given evidence in proceedings before a Chamber, and by Rule 77(D), which provides that “proceedings under Sub-Rule (C)(iii) above may be assigned to be heard by a single judge of any Trial Chamber or a Trial Chamber.” Moreover, as Trial Chamber II is the only Trial Chamber remaining in the Special Court, it follows that it must have jurisdiction to deal with contempt of court in cases that have already been completed, otherwise such offfences could be committed with impunity. Accordingly, the Trial Chamber fĳinds that it has jurisdiction over the Motion.

Merits Allegation of disclosure of information in knowing violation of an order of a Chamber (Rule 77(A)(ii)) 30. The information contained in TFI-334’s statement is that Ragga called and met with him several times during the period from 26 November to 3 December 2010.54 When Ragga met with the witness on 1 December 2010, Ragga asked him for the whereabouts of TF1-033 (using his actual name), saying that TF1-033 was one of the people that the convicts in Rwanda would like to talk to in respect to his testimony.55

SCSL-03-01-457; SCSL-03-01-513), 19 September 2008, paras. 14-15. See also 11 November 2010 Contempt Decision, p. 20. 52 These two sections are the following: (i) “Sammy Ragga, as stated in Confĳidential Annex B, also sought the whereabouts of [TF1-033], indicating that he wanted to talk to him in respect of this testimony” (Confĳidential Annex A to the Motion, p. 14) and (ii) “The Prosecution has received no notice of any request to contact protected Prosecution witnesses who testifĳied in the AFRC Case.” (Confĳidential Annex A to the Motion, p. 15). 53 Prosecutor v. Brima, Kamara and Kanu, SCSL-04-16-ES-683, Decision on Public with Confĳidential Annexes Urgent Prosecution Motion into Contempt of the Special Court for Sierra Leone, 10 January 2011, para. 11. 54 Confĳidential Annex B, pp. 1–3. 55 Confĳidential Annex B, p. 3. 896 part ii

31. The Trial Chamber recalls that the Prosecution does not dispute that TF1-334, although originally protected by measures ordered by Trial Chamber I,56 opted to rescind these measures and testifĳied openly under his own name in the case of Prosecutor v. Taylor.57 32. The Trial Chamber recalls that TFI-033 is subject to protective measures ordered by the Trial Chamber protecting his name and other identifying information from disclosure to the public and media.58 Accordingly, based on the information before it, the Trial Chamber has reason to believe that a person or persons may be in contempt of the Special Court by disclosing to third parties, including TF1-334, the identity of witness TF1-033 in violation of protective measures ordered by the Trial Chamber.

Allegations of Offfering a Bribe to a Witness, Intimidation and other Interference with Witnesses (Rule 77(A)(iv)) 33. The information contained in TFI-334’s statement is that Ragga called and met with him several times during the period from 26 November to 3 December 2010. Ragga told him that he had received a call from the AFRC convicts in Rwanda and that they wanted him to talk to the witness in order to persuade the witness to recant his testimony.59 The witness said he was not interested in recanting his testimony, and Ragga tried to convince him by telling him, “this was something I will have gain fĳinancial benefĳit from as the guys were ready to give me money.”60 34. During the witness’s meeting with Ragga on 27 November 2010, Ragga made a call, and then passed the phone to the witness, saying that Bomblast was on the phone. The witness spoke with the person on the phone, who told the witness to cooperate with the convicts in Rwanda.61 35. On 29 November 2010, while the witness was with Ragga, Ragga received a call which he said was from Kamara, and attempted to pass the phone to the witness, who said he did not want to talk to Kamara. Ragga later received a phone call

56 Prosecution Reply, para. 6, referring to Prosecutor v. Sesay, Kallon and Gbao, SCSL-04-15-T-180, Decision on Prosecution Motion for Modifĳication of Protecctive Measures for Witnesses, 5 July 2004 (“5 July 2004 Sesay Protective Measures Decision”); Prosecutor v. Brima, Kamara and Kanu, SCSL-04- 16-T, List of Protective Measures Received from Trial Chamber I and Other Information Filed Pursuant to Scheduling Order of 28 January 2005, 1 February 2005. 57 Prosecution Reply, para. 6, referring to Prosecutor v. Taylor, SCSL-03-01-T-472, Decision on Confĳidential and Urgent Defence Motion to Rescind or Vary Protective Measures for Prosecution Witness TF1-334, 14 April 2008; Prosecutor v. Taylor, SCSL-03-01-T, Transcript 16 April 2008, p. 7848. 58 5 July 2004 Sesay Protective Measures Decision. 59 Confĳidential Annex B, p. 1. 60 Confĳidential Annex B, p. 2. 61 Confĳidential Annex B, p. 1. interlocutory decisions – trial chamber 897 from a person he identifĳied as Kanu. The witness spoke to this person, who told the witness he was counting on him to assist them, and explained that they were “putting modalities in place to compensate” him if he rendered the assistance.62 36. The information contained in the statement of the Prosecution investigator is that on 16 December 2010, TF1-334 informed him that Bomblast and Ragga had met with him and told him they were going to meet with a lawyer who was acting on behalf of the AFRC convicts in Rwanda to contact witnesses to get them to recant their testimonies. During the meeting, Bomblast asked TF1-334 how much money he wanted for the deal, and TF1-334 responded that “this is a big deal; you decide what you want to give me.”63 Bomblast and Ragga met with TF1-334 again later that day, and told him they had spoken to Kamara and Kanu and that the convicts had promised that modalities were being put in place to ensure that the witness received what had been promised earlier. Bomblast also told TF1-334 that he should not be afraid of helping the convicts, and that “if there is anybody that TF1-334 should be afraid of should be them; but as long as they have given him the go ahead he should do so without fear.”64 37. Although there is no evidence that money was actually provided to TF1-334, the Trial Chamber has reason to believe that a person or persons, may be in contempt by offfering a bribe to Witness TF1-334 who had given evidence in proceedings before the Trial Chamber, in order to urge him to recant his prior testimony, contrary to Rule 77(A)(iv) of the Rules. 38. The Trial Chamber recalls that the ICTY has held that “intimidation of a witness as contempt of court is a crime of conduct, which does not require proof of a result. Whether the witness was actually intimidated is immaterial; the Prosecution need only prove that the conduct in question was intended to interfere with the Tribunal’s due administration of justice.”65 On the basis of the information disclosed in Annex B the Trial Chamber has reason to believe that a person or persons, including Ragga and Bombblast may be in contempt of the Special Court by intimidating a witness and thus influence the outcome of the AFRC case in violation of Rule 77(A)(iv) and Rule 77(B). 39. The Trial Chamber recalls that the ICTY has held that the offfence of “otherwise interfering with a witness” can encompass conduct of a similar gravity to intimidation that “seeks to influence the outcome of a pending case by interfering

62 Confĳidential Annex B, p. 2. 63 Confĳidential Annex B. 64 Confĳidential Annex B. 65 Brdjanin Decision, para. 23. 898 part ii with a witness or potential witness” and that “it is not necessary for the Prosecution to prove that the witness was actually deterred or influenced.”66

40. According to the information contained in the statement of TF1-334 and the Prosecution investigator, Ragga persistently contacted TF1-334 via telephone and in person, over the course of six days, alleging that he had been sent by the AFRC convicts to persuade the witness to agree to recant his prior testimony. He further tried to persuade TF1-334 to cooperate by telling him that a lawyer from Ghana would come to visit him. Ragga further told TF1-334 that the Chairman of the APC party in America had been informed about the matter and he in turn requested the Vice-President to “render some assistance in helping the convicts out of jail in Rwanda.” The Vice-President of Sierra Leone allegedly promised “to give assistance within his reach.” Ragga tried to further persuade the witness to make up his mind by having him speak with Bomblast, Kanu and Kamara.

41. On the basis of the repeated and persistent attempts to persuade TF1-334 to recant his testimony, the Trial Chamber has reason to believe that a person or persons, including Ragga, Bomblast and Kanu, may be in contempt by “otherwise interfering” with witnesses by urging them to recant their testimony, and thus to influence the outcome of the AFRC case, in violation of Rules 77(A)(iv) and 77(B).

42. However, there is not sufffĳicient evidence in Confĳidential Annex B for the Trial Chamber to have reason to believe that TF1-033 was in fact contacted by Ragga or any other of the suspects, nor that he was offfered a bribe, threatened or intimidated.

Allegation of Violation of Court Order Prohibiting Direct or Indirect Contact with Protected witnesses (Rule 77(A)(iv)) 43. The Prosecution alleges that, in contacting witness TF1-334, Ragga, Bomblast, Kamara and Kanu violated court ordered protective measures prohibiting contact by the Defence Team with certain protected Prosecution witnesses, which falls within the ambit of Rule 77(A) as it constitutes an interference with the administration of justice.

66 Brdjanin Decision, para. 28. See also Prosecutor v. Taylor, SCSL-03-01-T-1218, Decision on the Public with Confĳidential Annexes A-E and Public Annex F Urgent Prosecution Motion for an Investigation into Contempt of the Special Court for Sierra Leone and Public with Confĳidential Annexes A & B Urgent Prosecution Motion for an Investigation into Contempt of the Special Court for Sierra Leone, 25 February 2011, para. 43. interlocutory decisions – trial chamber 899

44. The Trial Chamber notes that the only protective measure prohibiting contact with Prosecution witnesses is one that specifĳically prohibits contact by Defence Counsel without leave of the Trial Chamber,67 and that there is no protective measure prohibiting contact with witnesses by other persons. The Trial Chamber fĳinds that there is not sufffĳicient evidence to give it reason to believe that any of the suspects were acting on behalf of Defence Counsel, and therefore no reason to believe that this protective measure has been violated.

Urgent Interim Measure 45. The Trial Chamber fĳinds that the urgent interim measure requested by the Prosecution, namely that the phone privileges of Kanu and Kamara be suspended, or in the alternative, restricted and closely monitored, is not appropriate at this stage of the proceedings, as the Registrar is already in contact with the prison authorities in Rwanda. FOR THE ABOVE REASONS GRANTS THE MOTION in part; DIRECTS the Registrar, pursuant to Rule 77(C)(iii) of the Rules, to appoint an experienced independent counsel to investigate the allegations that a person or persons, including Ragga, Bomblast, Kanu and Kamara may be in contempt of the Special Court by: (i) disclosing information relating to proceedings in knowing violation of an order of a Chamber68 by revealing the identity of protected witness TF1-033 to third parties, contrary to Rule 77(A)(ii); (ii) offfering a bribe to witness TF1-334, who has given evidence in proceedings before the Trial Chamber, contrary to Rules 77(A)(iv) and Rule 77(B) of the Rules. (iii) intimidating and “otherwise interfering with” witness TF1-334, who has given evidence in proceedings before the Trial Chamber, by attempting to compel him to recant his testimony, contrary to Rules 77(A)(iv) and Rule 77(B) of the Rules;

67 5 July 2004 Sesay Protective Measures Decision, provision (o), which provides that “The Defence Counsel shall make a written request to the Trial Chamber or Judge thereof, for permission to contact any Prosecution witness who is a protected witness or any relative of such person, and such request shall be timely served on the Prosecution. At the direction of the Trial Chamber or a Judge thereof, the Prosecution shall contact the protected person and ask for his or her consent, or the parent’s or guardian’s consent if that person is under the age of 18, to an interview by the Defence and shall undertake the necessary arrangements to facilitate such contact.” 68 5 July 2004 Sesay Protective Measures Decision. 900 part ii

FURTHER DIRECTS that, pursuant to Rule 77(C)(iii) of the Rules, the independent counsel appointed by the Registrar should report back to the Trial Chamber as to whether there are sufffĳicient grounds for instigating contempt proceedings; any report produced by the independent Counsel in this regard should be kept under seal by the Registrar and distributed only to the Trial Chamber. Done at The Hague, The Netherlands, this 18th of March 2011. PART III

INTERLOCUTORY DECISIONS – APPEALS CHAMBER

THE APPEALS CHAMBER

Before: Justice Renate Winter, Presiding Justice George Gelaga King Justice Emmanuel Ayoola Registrar: Robin Vincent Date: 13 March 2004 PROSECUTOR Against Morris Kallon (Case No.SCSL-2004-15-AR72(E)) Sam Hinga Norman (Case No.SCSL-2004-14-AR72(E)) Brima Bazzy Kamara (Case No.SCSL-2004-16-AR72(E))

DECISION ON CONSTITUTIONALITY AND LACK OF JURISDICTION

Office of the Prosecutor: Defence Counsel for Morris Kallon: Desmond de Silva, Q.C Stephen Powles Walter Marcus-Jones James Oury Christopher Staker Defence Counsel for Sam Hinga Defence Counsel for Brima Bazzy Kamara: Norman: Timothy Owen Ken Fleming, Q.C. Quincy Whitaker Sulaiman Banja Tejan-Sie III Defence Counsel for Moinina Fofana (Intervening): Michiel Pestman Arrow John Bokarie 904 part iii

THE SPECIAL COURT FOR SIERRA LEONE (“the Special Court”); SITTING as the Appeals Chamber (“the Chamber”) of the Special Court for Sierra Leone, composed of Justice Renate Winter, Presiding, Justice George Gelaga King, and Justice Emmanuel Ayoola; I, JUSTICE GEORGE GELAGA KING, HEREBY DECIDE AS FOLLOWS: CONSIDERING THE SUBMISSIONS OF THE PARTIES:

The Motions

1. The three cases before the Chamber – Prosecutor v. Morris Kallon,1 Prosecutor v. Sam Hinga Norman2 and Prosecutor v. Brima Bazzy Kamara,3 all raise issues of constitutionality and lack of jurisdiction of the Special Court for Sierra Leone. The arguments put forward by Counsel for each of the accused persons are either identical or overlap with one another. It is, in the circumstances, both logical and convenient to deliver one comprehensive decision in respect of all the three Accused. In those instances where new and distinct arguments have been put forward by one or other counsel in respect of any of the Accused the Chamber will consider them and adjudicate on them in its decision which will be the overall ruling on the three cases before us.

A. The Motion on Behalf of Morris Kallon 2. The fĳirst Preliminary Motion fĳiled challenging the constitutionality and lack of jurisdiction of the Special Court is that of Morris Kallon. The Chamber’s decision in that case will apply, of course, to the other two. 3. On 16 June 2003, Morris Kallon (“the Accused Kallon”) fĳiled a preliminary motion4 in the Registry of the Special Court for Sierra Leone (“the Special Court”) pursuant to Rule 72 of the Court’s Rules of Procedure and Evidence (“the Rules”) concerning the constitutionality of the Special Court and seeking a declaration that: a) the Government of Sierra Leone acted unconstitutionally in establishing the Special Court; b) the Special Court is an illegal and ultra vires institution;

1 Prior to the Decision and Order on Prosecution Motions for Joinder, 27 January 2004, and the subsequent Registry Decision for the Assignment of a new Case Number, 3 February 2004, the case number was Case No. SCSL-2003-07-PT. 2 See supra note 1: former Case No. SCSL-2003-08-PT. 3 See supra note 1: former Case No. SCSL-2003-10-PT. 4 Prosecutor v. Morris Kallon, Case No. SCSL-2003-07-PT, ‘Preliminary Motion based on lack of Jurisdiction: Establishment of Special Court violates Constitution of Sierra Leone,’ 16 June 2003 (“Kallon, Preliminary Motion”). interlocutory decisions – appeals chamber 905

c) the Accused Kallon be released from the custody of the Special Court immediately; and in the alternative, d) a postponement of all operations of the Special Court until such time as the Sierra Leone Government is able to organise and conduct a referendum in accordance with section 108 of the Sierra Leone Constitution5 (“the Constitution”).6 4. The Accused Kallon further applied for an oral hearing of his motion. 5. On 23 June 2003 the Prosecution fĳiled its Response seeking a dismissal of the preliminary motion in its entirety.7 6. On 30 June 2003 a Defence Reply was fĳiled urging oral argument on the grounds that the issues raised in the preliminary motion “go to the heart of the legality of establishment of the Special Court.”8 7. In accordance with Rule 72(E) of the Rules the Trial Chamber referred the preliminary motion to the Appeals Chamber which heard oral arguments on the motion on 5 November 2003.9

The Motion 8. The submissions in support of the Accused Kallon’s motion may be summarised as follows: a) The Special Court was created by an Agreement dated 16 January 2002 (“the Special Court Agreement”) between the United Nations (“UN”) and the Government of Sierra Leone (“the Government”) and the latter was duty bound to abide by and honour the Constitution. The Government failed to comply with the Constitution in the establishment of the Special Court and consequently the Special Court is unconstitutional and has no jurisdiction to prosecute persons before it since it has not been established by law.10

5 Act No. 6 of 1991. 6 Kallon, Preliminary Motion, para. 23. 7 Prosecutor v. Morris Kallon, Case No. SCSL-2003-07-PT, ‘Prosecution Response to the Second Defence Preliminary Motion (Constitution of Sierra Leone),’ 23 June 2003 (“Kallon, Prosecution Response”), para. 27. 8 Prosecutor v. Morris Kallon, Case No. SCSL-2003-07-PT, ‘Reply to Prosecution Response to Preliminary Motion based on lack of Jurisdiction: Establishment of Special Court violates Constitution of Sierra Leone,’ 30 June 2003 (“Kallon, Defence Reply”). 9 Order pursuant to Rule 72(E): Defence Preliminary Motion based on Lack of Jurisdiction: Establishment of Special Court violates Constitution of Sierra Leone, Case No SCSL-2003-07-PT, 17 September 2003; Order pursuant to Rule 72(E): Defence Preliminary Motion on Lack of Jurisdiction: Lawfulness of the Court’s Establishment, Case No. SCSL-2003-08-PT, 26 June 2003; Order pursuant to Rule 72(E): Application by Brima Bazzy Kamara in Respect of Jurisdiction and Defects in Indictment, Case No. SCSL-2003-10-PT, 22 September 2003. 10 Kallon, Preliminary Motion, para. 2. 906 part iii

b) While accepting that the Special Court Agreement 2002 (Ratifĳication) Act 2002 (“the Ratifĳication Act”) asserts that the Special Court Agreement was, for the part of the Government, signed under the authority of the President pursuant to section 40(4) of the Constitution,11 the creation of the Special Court clearly amends the judicial framework and court structure in Sierra Leone. According to the provisions of section 108(4) of the Constitution such amendments cannot be made without a referendum of the people of Sierra Leone and no such referendum has been held.12 c) The Government, in creating the Special Court, as a court sitting in Sierra Leone, presiding over crimes committed in Sierra Leone, by nationals of Sierra Leone, “with a view to potentially imprisoning persons convicted by the Special Court in Sierra Leone, acted unconstitutionally in bypassing the views and wishes of the people of Sierra Leone in relying on section 40(4) of the Constitution instead of section 108 of the Constitution in the creation of the Special Court.”13 d) The Special Court is not a ‘court’ as envisaged under sub-sections 17(1) and 30(1) of the Constitution and is, therefore, not empowered to order the deprivation of liberty of persons brought before it, nor is it a ‘court’ empowered to hear criminal cases under sub-sections 23(1) and 30(1) of the Constitution.14

The Response 9. In its Response, the Prosecution refutes these submissions and postulates as follows: a) Section 11(2) of the Ratifĳication Act expressly states that the Special Court does “not form part of the Judiciary of Sierra Leone.” The Special Court does not exist or operate at all within the sphere of the municipal law of Sierra Leone and is not a national court of Sierra Leone. The Defence in conceiving it to be part of the judicial structure of the Sierra Leone Judiciary are, therefore, in error.15 b) The Constitution is only capable of regulating the judicial power of the Republic of Sierra Leone within the municipal law of Sierra Leone. Section 120(1) of the Constitution which is the fĳirst provision in Chapter 7 deals with the Judiciary of Sierra Leone and provides that “the judicial power in Sierra Leone shall be vested in the Judiciary of which the Chief Justice shall be the Head.” The Prosecution stresses that the Defence itself, in its

11 Ibid., para. 14. 12 Ibid., paras. 5-7. 13 Kallon, Preliminary Motion, para. 18. 14 Ibid., paras. 8-11. 15 Kallon, Prosecution Response, para. 6. interlocutory decisions – appeals chamber 907

paragraph 7 of the preliminary motion expressly acknowledges that Chapter 7 of the Constitution “is concerned with the judiciary of Sierra Leone.”16 c) The Report of the UN-Secretary-General17 establishes that the Special Court Agreement is a treaty under international law and is binding on both parties even if (which the Prosecution denies) it is in conflict with domestic law. The Special Court exists and functions in the sphere of international law and the judicial power it exercises “is not the judicial power of the Republic of Sierra Leone.”18 d) The creation of the Special Court is analogous to the creation of the International Criminal Court (“the ICC”), another treaty-based international criminal court, whose Statute Sierra Leone signed on 19 October 1998 and ratifĳied on 15 September 2000.19 The ICC has been adopted by other States such as Australia and South Africa, which have similar provisions to those of Sierra Leone, without fĳirst amending their Constitutions.20 e) Article 27 of the 1969 Vienna Convention on the Law of Treaties read in conjunction with Article 46 thereof,21 together with similar provisions in the 1986 Vienna Convention22 provide that a party may not invoke provisions of internal law as justifĳication for its failure to perform a treaty “unless that violation was manifest and concerned a rule of its internal law of fundamental importance.”23 Even it is assumed that the conclusion of the Special Court Agreement breached the Constitution, any breach would not be ‘manifest’ within the meaning of Article 46 of the Vienna Conventions.24 f) Given there has been no manifest violation of the Constitution, it is immaterial to the validity of the Special Court Agreement and to Sierra Leone’s obligations under that Agreement whether the conclusion of the Agreement by the Government of Sierra Leone was not in fact in conformity with the Constitution. The Special Court has no jurisdiction to decide this question.25

16 Ibid., para. 5. 17 Report of the Secretary-General on the establishment of a Special Court for Sierra Leone 4 October, 2000, S/2000/915, para. 9 (“Report of the Secretary-General”). 18 Kallon, Prosecution Response, para. 7. 19 Ibid., para. 8. 20 Kallon, Prosecution Response, para. 13. 21 Vienna Convention on the Law of Treaties, adopted on 22 May 1969 in Vienna, entered into force 27 January 1980; United Nations, Treaty Series, vol. 1155, p. 331. 22 See Articles 27(1) and (3), and Article 46(1) and (3) of the Vienna Convention on the Law of Treaties, ibid. 23 Article 46 of the Vienna Convention on the Law of Treaties, ibid. 24 Kallon, Prosecution Response, paras. 10-13. 25 Ibid., para. 15. 908 part iii

g) Since the Defence accepts that it is asserted by the Government that the Ratifĳication Act amounts to ratifĳication of the Special Court Agreement by the Parliament for the purposes of section 40(4) of the Constitution, prima facie the constitutional requirements for the conclusion of the Special Court Agreement have been satisfĳied.26 h) The question whether there has been any violation of the Constitution is one which could only be determined by the national courts of Sierra Leone.27

The Reply 10. In Reply the Defence maintains its original submissions and stresses as follows: a) The creation of the Special Court is a clear attempt to amend the Constitution without fĳirst following the correct safeguards and procedures. The fact that the international agreement is with the United Nations and not another sovereign State is immaterial: it would still amount to a violation of the Constitution.28 b) The Prosecution’s submission that the Special Court has no jurisdiction to decide the question of conformity with the Constitution is incorrect and misconceived. Similar arguments were advanced by the Prosecutor at the International Criminal Tribunal for the former Yugoslavia (“the ICTY”) in response to the Defence motion on jurisdiction in the case of Prosecutor v. Dusko Tadic. In its decision, the Chamber flatly rejected the Prosecutor’s arguments.29 c) In that Tadic case the Defence had questioned the illegal foundation of the ICTY. The Prosecutor had argued that the legality and primacy of the Tribunal could not be challenged and considered by the Appeals Chamber. The Appeals Chamber rejected that argument and held: “All the grounds of contestation relied upon by the Appellant result, in the fĳinal analysis in an assessment of the legal capability of the International Tribunal to try the case. What is this, if not in the end a question of jurisdiction? And what body is legally authorised to pass on that issue if not the Appeals Chamber of the International Tribunal?…. After all, in a court of law, common sense ought to be honoured not only when the facts are weighed, but equally when laws are surveyed and the proper rule is selected. In the present case, the jurisdiction of this Chamber to hear and dispose of the Appellant’s interlocutory appeal is indisputable.”30

26 Ibid., para. 14. 27 Ibid., para. 16. 28 Kallon, Defence Reply, para. 8. 29 Prosecutor v. Dusko Tadic a/k/a “Dule,” Case No. IT-94-I-AR72, App. Ch. ‘Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction,’ 2 October 1995 (“Tadic, 2 Oct 1995”). 30 Tadic, 2 Oct 1995, para. 6. interlocutory decisions – appeals chamber 909

d) In the Tadic case the Appeals Chamber held that “the International Tribunal has jurisdiction to examine the plea against its jurisdiction based on the invalidity of its establishment by the Security Council.”31 The Appeals Chamber considered “The Issue of Constitutionality” of the Security Council’s action in establishing the ICTY pursuant to a Security Council Resolution.32 As in the Tadic case, it is submitted that the Trial Chamber (in this instance the Appeals Chamber) is able and indeed now obliged, to consider the constitutionality of the Government’s actions in establishing the Special Court pursuant to an international agreement with the UN and its failure to hold a referendum as required by the Constitution of Sierra Leone.33 e) Sierra Leone’s ratifĳication of the ICC has not yet been challenged and thus its validity has not been tested. Further, the ICC is not comparable to the Special Court because the former was established pursuant to a multi-lateral treaty as distinct from the present case where the treaty is between the UN and one Government. In any event, several States have found it necessary to amend their Constitutions in order to ratify the ICC Statute.34

B. The Motion on Behalf of Samuel Hinga Norman 11. On 26 June 2003, Samuel Hinga Norman (the Accused Hinga Norman) fĳiled a preliminary motion concerning the constitutionality of the Special Court.35 The Prosecution fĳiled its Response on 7 July 200336 and the Defence fĳiled its Reply on 14 July 2003.37 Oral arguments were heard by the Appeals Chamber on 5 November 2003.

The Motion 12. The Accused Hinga Norman’s motion is almost identical to that for Kallon except for the following additional submissions:

31 Ibid., para. 22. 32 U.N. Security Council Resolution 827, 25 May 1993. 33 Kallon, Defence Reply, para. 16. 34 Kallon, Defence Reply, para. 18, 24. 35 Prosecutor v. Samuel Hinga Norman, Case No. SCSL-2003-08-PT, ‘Preliminary Motion based on Lack of Jurisdiction: Lawfulness of the Court’s Establishment,’ 26 June 2003 (“Norman, Preliminary Motion”). 36 Prosecutor v. Samuel Hinga Norman, Case No. SCSL-2003-08-PT, ‘Prosecution Response to the First Defence Preliminary Motion (Lawfulness of the Court’s Establishment),’ 7 July 2003. (“Norman, Prosecution Response”). 37 Prosecutor v. Samuel Hinga Norman, Case No. SCSL-2003-08-PT, ‘Reply – Preliminary Motion based on Lack of Jurisdiction: Lawfulness of the Court’s Establishment,’ 14 July 2003 (“Norman, Defence Reply”). 910 part iii

a) The concurrent jurisdiction and primacy granted the Special Court under Article 8(1) and (2) of the Statute of the Special Court for Sierra Leone (“the Statute of the Court”) contravene section 122 and section 125 of the Constitution.38 b) In May 2000 when the Special Court Agreement was concluded the Government controlled only one-third of Sierra Leone territory. It therefore lacked “efffective control” and the habitual obedience of the majority of the population and was consequently not in a position to negotiate an agreement, thereby rendering the Special Court Agreement nugatory.39

The Response 13. The Prosecution’s Response is identical to its Response to the Accused Kallon’s motion. It, however, further asserts that where it is established that a State exists, it is not necessary that its legitimate government be in control of the greater part of its territory.40

The Reply 14. The Ratifĳication Act was a necessary legal requirement for the Special Court Agreement to enter into force. There was a manifest breach of an internal law of fundamental importance by the Government in implementing the Special Court Agreement. The analogy with the ICC is untenable given the Court’s hybrid nature.

C. The Motion on Behalf of Brima Bazzy Kamara The Motion41 15. Here the Defence submits that the Ratifĳication Act is a Sierra Leonean Statute creating Sierra Leonean law and creating crimes of Sierra Leone. As such the Act must be interpreted pursuant to the Constitution. Any exercise of judicial power is invalid. Articles 2, 3 and 4 of the Statute of the Special Court create crimes unknown to Sierra Leonean domestic law prior to the passing of the Ratifĳication Act. The Act therefore offfends the Constitution insofar as it purports to create a liability for punishment prior to the passing of the Act.42

38 Norman, Defence Motion, paras. 9-13. 39 Norman, Defence Motion, paras. 21-25. 40 Norman, Prosecution Response, para. 13. 41 Prosecutor v. Brima Bazzy Kamara, Case No. SCSL-2003-10-PT, ‘Application by Brima Bazzy Kamara in Respect of Jurisdiction and Defects in Indictment,’ 22 September 2003 (“Kamara, Preliminary Motion”). 42 Kamara, Preliminary Motion, para. 1.10-1.11, 1.21, 2.3. interlocutory decisions – appeals chamber 911

The Response43 16. The Prosecution submits that the Constitution is only capable of regulating and only purports to regulate the judicial power of the Republic of Sierra Leone within the sphere of the domestic law. It maintains that as is expressly stated in section 11(2) of the Ratifĳication Act, the Special Court does “not form part of the Judiciary of Sierra Leone.” It does not exist or operate at all within the sphere of the domestic law of Sierra Leone.44 17. As a creature of an international treaty, the Special Court exists and functions in the sphere of international law. The judicial power that it exercises is not the judicial power of the Republic of Sierra Leone.45 18. A treaty is a valid basis for the creation of an international criminal court, in accordance with the Vienna Conventions. Any breach of the Constitution would not be “manifest” within the meaning of Article 6 of the Vienna Conventions.46 19. The principle of nullum crimen sine lege requires only that the relevant acts were unlawful at the time of their commission as a matter of international law because the Special Court only functions in this sphere. Therefore the Constitution is inapplicable.47 20. The Defence fĳiled no Reply within the required time.

D. Oral Submissions on the Behalf of All Parties 21. At the oral hearing on 5 November 2003 oral submissions on the issue of Constitutionality were made in the manner hereinafter appearing: 22. Mr. Ken Fleming Q.C. for the Accused Brima Bazzy Kamara submitted that the Special Court derives its jurisdiction from the Government and the Ratifĳication Act. There is a great interlinking of the Special Court with the domestic jurisdiction unlike the ICTY and the International Criminal Tribunal for Rwanda (“the ICTR”). The Government brought the Special Court within the domestic jurisdiction by that ratifĳication. Ratifĳication introduced rights and obligations for the citizens of Sierra Leone. In answer to a question from the Bench he conceded that if the Appeals Chamber were to hold that the Special Court was established by treaty, then the Defence would lose. He submitted that the Special Court is not an

43 Prosecutor v. Brima Bazzy Kamara, Case No. SCSL-2003-10-PT, ‘Prosecution Response to the Defence Application in Respect of Jurisdiction and Defects in Indictment,’ 30 September 2003 (“Kamara, Prosecution Response”). 44 Kamara, Prosecution Response, para. 6. 45 Ibid., para. 7. 46 Ibid., paras. 8-13. 47 Ibid., para. 14. 912 part iii international court, but a domestic court. Under section 66 of the Constitution Chief Prosecutor David Crane is not to prosecute, but instead the Attorney General of Sierra Leone or the Director of Public Prosecutions.The test to determine the Special Court’s power to review its constitutive documents comes from the Tadic case, supra. 23. Mr. Tejan-Sie for the Accused Samuel Hinga Norman, also relying upon Tadic, supra, posited that the Special Court has jurisdiction to examine whether the Special Court itself was properly established. The Special Court originated from an Agreement between the UN and the Government and its implementation at the national level would require that the Special Court Agreement is incorporated in the national law of Sierra Leone in accordance with constitutional requirements.48 Section 40(4) of the Constitution gives the President the power to sign treaties, but there is a proviso regarding matters within the legislative competence of the Sierra Leone Parliament. Articles 8(1) and (2) of the Statute of the Special Court alter the Constitution where section 122 states that the Sierra Leone Supreme Court shall be the fĳinal court of appeal. The Ratifĳication Act therefore breached section 120(2) of the Constitution since any bill altering any of the provisions referred to in section 108(3) must be submitted to and approved by referendum. Further, the Special Court should take judicial notice that the Government at all material times did not have efffective control of Sierra Leone as two-thirds of the country was under the efffective control of the Revolutionary United Front (“RUF”). 24. Mr. Stephen Powles for the Accused Morris Kallon also relied on Tadic paragraph 20 and submitted that the Appeals Chamber has jurisdiction to examine the legality of its establishment. Section 40(4) of the Constitution was an inappropriate way of going about a treaty with the UN. The President in acting under section 40(4) of the Constitution was amending it. 25. Mr. Christopher Staker for the Prosecution made the following comprehensive submissions, citing a plethora of authorities: a) The terms of the Special Court Agreement make clear that it establishes the Special Court itself. The terms of the Ratifĳication Act makes clear that this Act does not establish the Court but ratifĳies and implements the Agreement in municipal law, as evident from the title, preamble and memorandum. b) The Special Court Agreement is an international treaty in accordance with Article 2 of the Vienna Conventions, as indicated by the Secretary- General, and evident in the Articles of the Agreement itself.

48 Archbold International Criminal Courts, Practice, Procedure and Evidence, London 2003, para. E2-002. interlocutory decisions – appeals chamber 913

c) The Special Court Agreement entered into force by virtue of mutual noti- fĳication and was in no way dependent upon the enactment of valid implementing legislation by Sierra Leone. d) The Special Court is an international organisation and an international court. e) The Special Court exists and functions in the sphere of international law, not municipal law. f) The validity of the Special Court Agreement and existence and functioning of the Court in the sphere of international law are not afffected by provisions of the Constitution.

E. Additional Post-Hearing Written Submissions of the Prosecution 26. On 24 November 2003 the Prosecution fĳiled additional submissions in answer to all three Accused bringing motions in one integrated document.49 27. The Prosecution divided argument into six propositions. The arguments put forward were broadly the same as those presented in the Prosecutor’s oral submissions, with some additional explication: a) Although no instance has arisen, the Prosecution fĳinds no reason why an international court should not be able to try crimes under the municipal law of a State, should all relevant states agree. Accordingly Article 5 of the Special Court Agreement is valid.50 b) Although it has been described as a hybrid tribunal, the Special Court exists and functions in the sphere of international law, and not domestic law. The reference to a ‘sui generis’ court in the Report of the Secretary- General is merely an observation that the Special Court is the fĳirst international criminal court to have been created by Treaty between the UN and a State. The mere fact that the Secretary-General describes the Special Court as one of “mixed…composition” means only that the stafff of the Court is to be composed of a mixture of international and Sierra Leonean individuals, and does not mean that the Special Court functions in the sphere of domestic Sierra Leonean law.51 c) Of those 29 States ratifying the ICC Statute, only two or three indicated constitutional concerns regarding similar issues to those in the current motion, and those countries with more similar constitutional traditions

49 Prosecutor v. Morris Kallon, Case No. SCSL-2003-07-PT, Prosecutor v. Samuel Hinga Norman, Case No. SCSL-2003-08-PT, Prosecutor v. Brima Bazzy Kamara, Case No. SCSL-2003-10-PT, ‘Additional Written Submissions of the Prosecution – Legality of the Establishment o the Court,’ 24 November 2003 (“Prosecution Additional Submissions”). 50 Prosecution Additional Submissions, paras. 16-18. 51 Prosecution Additional Submissions para. 27. 914 part iii

to Sierra Leone did not. Therefore there can have been no ‘manifest’ violation.52 28. The Prosecution then reiterated its arguments on the ‘efffective control’ issue and the principle against retroactive criminal legislation.53

The Principal Issues and Their Determination

29. The arguments and submissions of the Defence and Prosecution which have purposely been set out in extensu show quite clearly that the principal questions which arise for determination in the three preliminary motions are: a) Whether the Special Court has the competence and jurisdiction to determine the lawfulness and the validity of its own creation; and b) If the Special Court has such competence and jurisdiction, was it lawfully and validly established?

A. Jurisdiction of the Special Court 30. In resolving the fĳirst question, the Agreement between the UN and the Government of Sierra Leone which may be termed the primordial constitutive document, must necessarily be our starting point, together with the Statute of the Special Court. 31. Article 1 of the Special Court Agreement is captioned “Establishment of the Special Court” and it states: “1. There is hereby established a Special Court for Sierra Leone 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 December 1996. 2. The Special Court shall function in accordance with the Statute of the Special Court for Sierra Leone. The Statute is annexed to the Agreement and forms an integral part thereof.” 32. The conduct of legal proceedings in the Special Court is governed by Article 14 of the Statute, which empowers the Special Court to apply the Rules of Procedure and Evidence of the ICTR, obtaining at the time of the establishment of the Special Court, the necessary changes to be made (Article 14(1)). Furthermore, the Special Court is mandated to amend the Rules or adopt additional Rules where the applicable Rules do not, or do not adequately, provide for a specifĳic situation (Article 14(2)).

52 Prosecution Additional Submissions para. 49. 53 Prosecution Additional Submissions para. 54-57. interlocutory decisions – appeals chamber 915

33. A perusal of the Rules reveals that the Appeals Chamber of the Special Court is clothed with the exclusive power to determine, as soon as practicable, issues relating to jurisdiction. In the words of Rule 72(E): “Preliminary motions made in the Trial Chamber prior to the Prosecutor’s opening statement which raise a serious issue relating to jurisdiction shall be referred to the Appeals Chamber, where they will proceed to a determination as soon as practicable.” 34. It is beyond argument, therefore, that the Appeals Chamber of the Special Court has the competence to determine whether or not the Special Court has jurisdiction to decide on the lawfulness and validity of its creation. 35. All Defence Counsel and the Prosecution have called in aid the case of Tadic on the question whether the Special Court has jurisdiction to decide the issue of conformity with the Constitution. The Defence Reply by Counsel for the Accused Kallon in which it is stated that the Prosecution submitted that the Special Court has no jurisdiction to decide the question of conformity with the Constitution54 seems to be citing the Prosecution a little out of context. 36. The Prosecution’s position is that there has been no manifest violation of the Constitution and therefore it is immaterial to the validity of the Special Court Agreement whether the conclusion of the Agreement was not in fact in conformity with the Constitution. It is in this context that they submit that the Special Court has no jurisdiction to decide the question, on the ground that only national courts of Sierra Leone could.55 37. In fact, the Prosecution says it does not deny that the Special Court has the jurisdiction to determine the legality of its own creation for the purpose of deciding its own jurisdiction.56 In this regard they are echoing the Appeals Chamber in the Tadic Jurisdiction Appeal Decision. This Appeals Chamber, as that in Tadic, is of the view that common sense dictates that for the several issues raised in the respective preliminary motions to be adjudicated upon, the Chamber must fĳirst and foremost determine if it has jurisdiction to decide whether the Special Court has been lawfully established. As has already been stated, the Special Court Agreement and the Rules provide that basic and indispensable mandate and it is, therefore, indisputable that the Chamber has jurisdiction.

54 Prosecutor v. Morris Kallon, Case No. SCSL-2003-07-PT, Reply to Prosecution Response, 30 June 2003, para. 11. 55 Prosecutor v. Samuel Hinga Norman, Case No. SCSL-2003-08-PT, Prosecution Response, 7 July 2003, para. 10-12. 56 Prosecutor v. Samuel Hinga Norman, Case No. SCSL-2003-08-PT, Prosecutor v. Morris Kallon, Case No. SCSL-2003-07-PT, Prosecutor v. Brima Bazzy Kamara, Case No. SCSL-2003-10-PT, ‘Additional Written Submissions of the Prosecution – Legality of the Establishment of the Court,’ para. 3. 916 part iii

B. Constitutionality of the Special Court 38. Many arguments and submissions hereinbefore referred to have been put forward by Defence Counsel in support of their contention that the Special Court is unconstitutional, that the Government acted unconstitutionally in establishing it and that the Special Court is, therefore an ultra vires and unconstitutional institution. 39. It is, therefore, necessary to examine the means by which the Special Court was established with a view to determining whether the appropriate procedures were followed and relevant legal requirements fulfĳilled.

(a) How Did the Special Court Come About? 40. The Report of the Secretary-General states that the Security Council by its Resolution 1315 (2000) of 14 August 2000, requested the Secretary-General to negotiate an agreement with the Sierra Leone Government to create an independent Special Court to prosecute persons who bear the greatest responsibility for the commission of crimes against humanity, war crimes and other serious violations of international humanitarian law, as well as crimes committed under relevant Sierra Leonean law committed within the territory of Sierra Leone.57 41. As stated in the Report, “[t]he subject-matter jurisdiction of the Special Court … covers the most egregious practices of mass killings, extra-judicial executions, widespread mutilation, in particular amputation of hands, arms, legs, lips and other parts of the body, sexual violence against girls and women, and sexual slavery, abduction of thousands of children and adults, hard labour and forced recruitment into armed groups, looting and setting fĳire to large urban dwellings and villages. 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 had the character of customary international law at the time of the alleged commission of the crime.”58

(b) The Special Court is Treaty-Based and Sui Generis: 42. The Secretary-General’s Report examines and analyses the nature and speci- fĳicity of the Special Court emphasising that, unlike the ICTY and ICTR which were established by resolution of the Security Council, the Special Court, “is established by an agreement between the United Nations and the Government of Sierra Leone and is therefore a treaty-based sui generis court of mixed jurisdiction and composition. Its implementation at the national level would require that the Special

57 Report of the Secretary-General, above note 16. 58 Ibid., para. 12. interlocutory decisions – appeals chamber 917

Court Agreement is incorporated in the national law of Sierra Leone in accordance with constitutional requirements.”59 [Emphasis supplied.] 43. The assertion that the Special Court is treaty-based is justifĳied on a perusal of the Vienna Convention on the Law of Treaties between States and International Organisations (“the 1986 Vienna Convention”). Article 2(1)(a) defĳines “treaty” as, “an international agreement governed by international law and concluded in written form… between one or more States (in this instance Sierra Leone) and one or more international organisations (the United Nations)…” And in the words of Article 31(1) of the 1986 Vienna Convention, “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.”

(c) Was the Special Court Agreement Incorporated in the National Law of Sierra Leone in Accordance with Constitutional Requirements? 44. The Special Court Agreement was signed on 16 January 2002 by the duly authorised representatives of the UN and the Government, namely, Hans Correll, Assistant Secretary-General for Legal Afffairs, and Soloman Berewa, Attorney- General and Minister of Justice, respectively. In Article 21 it is provided that “the Agreement shall enter into force on the day after both Parties have notifĳied each other in writing that the legal requirements for entry into force have been complied with.” 45. The Ratifĳication Act was enacted in March 2002. In its Memorandum of Objects and Reasons it is stated that the object of the Bill is to make provision for the ratifĳication and implementation of the Agreement between the Government and the UN signed on 16 January 2002, for the establishment of the Special Court. 46. In the preamble to the Ratifĳication Act it is also stated that the Special Court Agreement was signed under the authority of the President and that by the proviso to section 40(4) of the Constitution it is required to be ratifĳied by an Act of Parliament. 47. Counsel for the Accused Hinga Norman, however, contends that the creation of the Special Court by the Government “in agreement with the United Nations by virtue of the Special Court Agreement 2000 (Ratifĳication) Act 2000 in efffect amends fundamental aspects of the Constitution of Sierra Leone for which

59 Ibid., para. 9. 918 part iii no referendum was held.”60 Counsel for the Accused Hinga Norman goes on to argue that the establishment of the Special Court clearly amends the judicial framework and Court structure in Sierra Leone and cites section 120(1) of the Constitution which states: “The judicial power of Sierra Leone shall be vested in the Judiciary of which the Chief Justice shall be the head.”61 48. Those arguments and submissions are erroneous, if not fallacious, for four main reasons. 49. First, the Special Court is not part of the Judiciary of Sierra Leone and this fact is explicitly stated in section 11(2) of the Ratifĳication Act: “The Special Court shall not form part of the Judiciary of Sierra Leone.” 50. Secondly, under Article 11(d) of the Special Court Agreement, unlike the Judiciary of Sierra Leone, the Special Court possesses the judicial capacity necessary to “(e)nter into agreements with States as may be necessary for the exercise of its functions and for the operation of the Special Court.” This means in efffect that the Special Court has the power to conclude treaties, which power the national courts do not have. 51. Thirdly, as a treaty-based organ the Special Court, “is not anchored in any existing system (i.e. United Nations administrative law or the national law of the State of the seat.)”62 52. Fourthly “the Special Court for Sierra Leone is established outside the national court system.”63 [Emphasis supplied.] 53. For these reasons and having regard to the provisions of section 40(4) of the Constitution, the argument that the creation of the Special Court in efffect amends the Constitution and that consequently a referendum should have been held is without substance. The establishment of the Special Court under Article 1 of the Special Court Agreement fulfĳils the relevant constitutional requirements and the appropriate procedures were certainly followed.

(d) ‘Does the Special Court provide for Fair Trial Safeguards as Required for it to be Established by Law? 54. Having fulfĳilled the conditions as to its establishment, the next question to be considered is whether the Special Court provides the necessary and

60 Prosecutor v. Samuel Hinga Norman, Case No.SCSL-2003-08-PT, Defence Motion, 26 June 2003, para. 9. 61 Ibid., para. 9. 62 Report of the Secretary-General, para. 9. 63 Ibid., para. 39. interlocutory decisions – appeals chamber 919 fundamental safeguards for a fair trial. This is the necessary criterion which will enable this Chamber to determine whether the Special Court has been “established by law.” 55. As was stated earlier, the Special Court Agreement is an international agreement governed by international law. The Special Court is accordingly an international tribunal and it is a norm of international law that for it to be “established by law,” its establishment must accord with the rule of law. This means that it must be established according to proper international criteria; it must have the mechanisms and facilities to dispense even-handed justice, providing at the same time all the guarantees of fairness and it must be in tune with international human rights instruments. 56. A perusal of the Statute of the Special Court and the Rules bears witness that the various criteria mentioned have been observed and that the Special Court has been established according to the rule of law. 57. For instance, Article 17 of the Statute, dealing with Rights of the Accused, provides: “1. All accused shall be equal before the Special Court. 2. The accused shall be entitled to a fair and public hearing, subject to measures ordered by the Special Court for the protection of victims and witnesses. 3. The accused shall be presumed innocent until proved guilty according to the provisions of the present Statute…” 58. The Statute then goes on to produce the fair trial guarantees to be found in Article 14 of the ICCPR.64 Other fair trial guarantees are stipulated in Article 13 of the Statute. This states that the Judges shall be persons of high moral character, impartiality and integrity who shall be independent in the performance of their functions. Similar provisions can be found in the Rules, all aimed at ensuring equality of arms and a fair trial.65 The establishment of the Special Court, therefore, accords with the rule of law.

(e) Act of Formal Confĳirmation of the Special Court Agreement 59. As pointed out in paragraph 44, supra, the Special Court Agreement was to enter into force on the day after both parties had notifĳied each other in writing that the legal requirements for entry had been complied with.66

64 International Covenant on Civil and Political Rights, GA res. 2200A (XXI), 21 UN GAOR Suppl. (No. 16) at 52, entered into force 23 March 1976. 65 See for example Rule 14, ‘Solemn Declaration’; Rule 15, ‘Disqualifĳication of Judges’; Rule 42, ‘Rights of Suspects during Investigation’; Rule 43, ‘Recording Questioning of Suspects’; Rule 45, ‘Defence Offfĳice’; Rule 63, ‘Questioning of the Accused’; Rule 66, ‘Disclosure of materials by the Prosecutor’; Rule 67, ‘Reciprocal Disclosure of Evidence’; Rule 68, ‘Disclosure of Exculpatory Evidence.’ 66 Article 21 of the Special Court Agreement. 920 part iii

60. On 11 April 2002, Dr. Ahmed Ramadan Dumbuya, who was then Minister of Foreign Afffairs for Sierra Leone wrote to the UN Secretary-General as follows: “I write to inform you that the Act incorporating the Agreement for the establishment of the Special Court between the Government of Sierra Leone and the United Nations into the laws of Sierra Leone re. Implementing Act, was given Presidential assent on the 29th March 2002. Consequently, Sierra Leone has now complied with the legal requirements for entry into force of the Agreement pursuant to Article 21 thereof.”67 61. On the same day, Hans Corell, Legal Counsel of the United Nations, on behalf of the UN, signed the instrument which “constitutes the Act of Formal Confĳirmation by the United Nations that the legal requirements for entry into force of the Agreement… have been met.”68 62. The conclusion that must necessarily be drawn from those two documents is that both parties, fully aware of their obligations under the Special Court Agreement (Treaty), were quite satisfĳied that the legal requirements for the establishment of the Special Court had been fulfĳilled. The Special Court Agreement accordingly entered into force on 12 April 2002. In all the circumstances, therefore, and having regard to the earlier fĳindings, the conclusion follows that the Special Court was lawfully and validly established.

D. Concurrent Jurisdiction and Primacy 63. We now turn to the questions of concurrency and primacy and that of efffective control raised, as separate issues, by Counsel for the Accused Hinga Norman. 64. Article 8 of the Statute of the Special Court states: “1. The Special Court and the national courts of Sierra Leone shall have concurrent jurisdiction. 2. The Special Court shall have primacy over the national courts of Sierra Leone. At any stage of the procedure, the Special Court may formally request a national court to defer to its competence in accordance with the present Statute and the Rules of procedure and Evidence.” 65. Counsel for the Accused Hinga Norman complains that Article 8 contravenes sections 122 and 125 of the Constitution. It is further submitted that the granting of concurrent jurisdiction and primacy to the Special Court of Sierra Leone is ultra vires the Constitution since the Special Court is not mentioned in Chapter VII of the Constitution which creates and grants supervisory role and

67 Letter of 11 April 2002 from Dr. Ahmed Ramadan Dumbuya to His Excellency Kofĳi Annan UN/ COURT/601/71. 68 ‘Act of Formal Confĳirmation,’ by Hans Corell, 11 April 2002. interlocutory decisions – appeals chamber 921 primacy to the Supreme Court of Sierra Leone as the fĳinal Court of adjudication. It is contended that the Judicial Framework and Court Structure is thereby amended.69 66. It is obvious that the Special Court could not have been mentioned in Chapter VII of the Constitution for the simple reason that the Special Court did not exist when the Constitution was promulgated. 67. As we have already held, the Special Court is not part of the Judiciary of Sierra Leone. It is the product of a treaty agreement between the Government and the UN. The Statute of the Court is annexed to the Special Court Agreement and forms an “integral part” of it.70 Concurrent jurisdiction with the Sierra Leone national courts and primacy over them emanate from that Agreement of which Article 8 of the Statute of the Court is a part. The Special Court Agreement has been ratifĳied according to law thereby incorporating it into the Laws of Sierra Leone. 68. Although Article 8 may appear repugnant when viewed in light of sections 122 and 125 of the Constitution, it does not, in our judgment, amend the judicial framework or court structure of Sierra Leone because the Special Court is not part of the Sierra Leone Judiciary and is outside the structure of the national courts. 69. It is instructive to note that the Statutes of the ICTY and the ICTR have similar provisions.71 Each of those International Tribunals has concurrent jurisdiction with national courts to prosecute persons for serious violations of international humanitarian law and each has primacy over national courts. Each of those Tribunals, at any stage of the procedure may formally request national courts to defer to the competence of the Tribunal in accordance with their respective Statutes and Rules of procedure. While acknowledging that the ICTY and ICTR have Chapter VII powers of the UN Charter ensuring that there is an obligation on all UN members to co-operate, in the case of the Special Court, as the Agreement is between the UN and Sierra Leone, its primacy is limited to Sierra Leone alone, as also the obligation to co-operate with the Special Court. 70. Article 8 is intended to ensure that for offfences other than those committed by “peacekeepers and related personnel,”72 the Special Court will have primacy over the national courts of Sierra Leone. This is consistent with the Special Court’s mandate to prosecute “those who bear the greatest responsibility for

69 Prosecutor v. Samuel Hinga Norman, Case No.SCSL-2003-08-PT, Defence Motion, 26 June 2003, paras. 11-13. 70 See Article 1(2) of the Special Court Agreement. 71 See Article 9 of the Statute of the ICTY and 8 of the Statute of the ICTR. 72 Article 1(2) of the Statute of the Special Court. 922 part iii serious violations of international humanitarian law and Sierra Leonean law committed in the territory of Sierra Leone since 30 November 1996…”73 71. In our judgement, Article 8 does not contravene the Constitution as alleged or at all particularly having regard to our fĳinding that the Special Court is an international tribunal.

E. Is Efffective Control of Territory aSine Qua Non for the Legality of the Special Court Agreement? 72. Mr. Tejan-Sie for the Accused Hinga Norman argued that in May 2000 when the Government requested the United Nations to set up a Special Court to try perpetrators of war crimes and crimes against humanity which had taken place in the territory of Sierra Leone, the Revolutionary United Front (“RUF”) and the Armed Forces Revolutionary Council (“AFRC”) were in control and efffective occupation of two-thirds of Sierra Leone’s territory.74 When asked at the oral hearing for evidence Counsel asked the Chamber to take judicial notice of his opinion. Of course it is trite to say that “Judges are not entitled nor bound to take judicial notice of that which is not common knowledge of the great majority of mankind and of the greater majority of men of business.”75 Counsel did not attempt to satisfy that criterion. 73. Counsel did, however, refer to the concept of the “State” as described in the Montevideo Convention 1933, which provides that “the State as a person of international law should possess the following qualifĳica- tions: (a) a permanent population; (b) a defĳined territory; (c) government; and (d) capacity to enter into relations with other States.”76 74. Counsel for the Accused Hinga Norman’s sheet-anchor is that the Government did not enjoy the obedience of the majority of the people of Sierra Leone because, they contend, the Government did not have efffective control over the territory of Sierra Leone. 75. Even if, for the purpose of legal argument, the Chamber accepts that two- thirds of the territory of Sierra Leone was in the control of the RUF and the AFRC, it is a basic, fundamental and over-riding principle of International Law that “(t) he occupation and acquisition of territory through the use of force is illegal and territory gained in this manner does not belong to the conqueror.”77

73 Article 1(1) of the Statute of the Special Court. 74 See also Prosecutor v. Samuel Hinga Norman, Case No.SCSL-2003-08-PT Defence Motion, 26 June 2003, paras. 21-25. 75 R v. Aspinall (1976) 3 Q.B. D. 48 at 61. 76 Montevideo Convention on the Rights and Duties of States, signed in Montevideo 26 December 1933, entered into force, 26 December 1934. 77 Dixon, Textbook on International Law, 4th ed. 2000, para. 5.2.1.7. interlocutory decisions – appeals chamber 923

76. It was on that basic principle that Creswell J. founded his decision in the case of Sierra Leone Telecommunications Co. Ltd. v. Barclays Bank Plc78 which the Prosecution cites in support. A coup had taken place in Sierra Leone on 25 May 1997. A military junta was thereafter set up and on 22 December 1997 a letter purporting to come from the plaintifff was sent to the defendant Bank suspending, with immediate efffect, three signatories to the plaintifff’s account and informing the Bank that the plaintifff’s board of directors had been dissolved and a new board appointed. The bank later refused to honour several payment requests on the ground that it had reasonable grounds for believing they were made without authority. 77. In the ensuing court action Cresswell J. held that the military junta were not the Government of Sierra Leone. Moreover, the U.K. Government had continued to deal with the democratically elected government and had no dealings with the military junta whose coup had been condemned by the Commonwealth, the Organisation of African Unity and the European Community. The letter of 22 December 1997 from those associated with the junta was, therefore, of no efffect and the new directors were not validly appointed.79 78. One vital conclusion that can be drawn from that decision is that whether or not an illegal regime is in efffective control of a large part of a State’s territory, it will not be recognised under International Law so long as the democratically elected Government exists and “so long as it is capable of controlling the afffairs of the ‘State’ in the international community.”80 Accordingly, the Government of Sierra Leone did have authority to enter into an International Agreement, regardless of whether or not it was in ‘efffective control’ of the majority of the territory of Sierra Leone. 79. It follows from all this that the submissions of the Defence on efffective control are misconceived and without merit.

F. Alleged Violation of the Nullum Crimen Sine Lege/Non-Retroactivity Principle 80. Since this Chamber holds that the Special Court is an international tribunal exercising its jurisdiction in an entirely international sphere and not within the system of the national courts of Sierra Leone, in adjudicating on the Defence contention that the crimes enumerated in Articles 2-4 of the Statute were not crimes under Sierra Leone law until the enactment of the Ratifĳication Act, we must determine whether the crimes existed under international law. It is sufffĳicient that the crimes existed under international law, for in that case it becomes irrelevant

78 [1998] 2 All ER 821, U.K. QB Division. 79 Ibid. Decision by Cresswell J, fĳinal para. 80 Dixon, supra note 77, para. 5.2.1.3. 924 part iii whether they were offfences under the domestic law of Sierra Leone at the time of their alleged commission. 81. In relation to crimes against humanity, violations of Common Article 3 of the Geneva Conventions and Additional Protocol II and other serious violations of international law, as contained in Articles 2-4 of the Statute, the ICTY Appeals Chamber in Prosecutor v. Delalic et al.81 gave their support to the Secretary- General’s statement that violations of Common Article 3 had been criminalised for the fĳirst time with the establishment of the ICTR. This Chamber also endorses that statement of the Secretary-General. 82. Furthermore, we accept, as a correct statement of the law, the statement in Archbold’s International Criminal Courts, that “[t]he fact that no court exists with jurisdiction to adjudicate crimes proscribed by international law at the time the offfences were committed is not a bar to prosecution and not a violation of the principle nullum crimen sine lege.”82 We, therefore, reject the submission that the Special Court has no jurisdiction to hear such matters. HEREBY DECIDE 83. For all the reasons given, I have come to the conclusion that each of these Preliminary Motions ought to be dismissed and they are hereby dismissed. JUSTICE WINTER For the above reasons, I agree. JUSTICE AYOOLA For the above reasons, I agree. Done at Freetown this 13th Day of March 2004.

81 Prosecutor v. Delalic et al. (“Celebici Case”), ICTY Appeals Chamber Judgment, Case No. IT-96- 21-A, 20 February 2001, para. 178. 82 Archbold, supra note 48 para. 17-29. THE APPEALS CHAMBER

DECISION ON CHALLENGE TO JURISDICTION: LOMÉ ACCORD AMNESTY

Office of the Prosecutor: Defence Counsel for Morris Kallon: Desmond de Silva, QC James Oury Luc Côté Stephen Powles Walter Marcus-Jones Abdul Tejan-Cole Defence Counsel for Brima Bazzy Kamara: Ken Fleming, QC Amici Curiae: Interveners: Richard Hermer for Redress Trust, Andreas O’Shea for Augustine Gbao Lawyers Committee for Human Michiel Pestman for Moinina Fofana Rights and the International Commission of Jurists Professor Diane Orentlicher 926 part iii

THE APPEALS CHAMBER of the Special Court for Sierra Leone (“Court” or “Special Court”); BEING SEIZED of (1) a ‘Preliminary Motion based on lack of Jurisdiction/Abuse of Process: Amnesty Provided by the Lomé Accord,’ fĳiled on behalf of Morris Kallon on 16 June 2003 (“Kallon Preliminary Motion”); and (2) ‘Application by Brima Bazzy Kamara in respect of Jurisdiction and Defects in Indictment,’ fĳiled on behalf of Brima Bazzy Kamara on 22 September 2003, section 3 of which raises issues relating to the Lomé Accord amnesty (“Kamara Preliminary Motion”);1 NOTING that the Prosecution Response to the Kallon Preliminary Motion was fĳiled on 23 June 2003,2 and that the Prosecution Response to the Kamara Preliminary Motion was fĳiled on 29 September 2003;3 NOTING that the Kallon Preliminary Motion was referred to the Appeals Chamber on 30 September 2003 pursuant to Rules 72(E) and (F) of the Rules of Procedure and Evidence for the Special Court for Sierra Leone (“the Rules”), and that the Kamara Preliminary Motion was referred to the Appeals Chamber under Rule 72(E) of the Rules on 9 October 2003;4 NOTING that oral submissions were heard on 3 and 4 November 2003; NOTING that Written Defence Submissions in support of Oral Argument were fĳiled on behalf of Kallon on 3 November 2003;5 that Defence Post-Hearing Written Submissions were fĳiled on behalf of Kallon on 28 November 2003;6 and that the Prosecution fĳiled its Response thereto on 3 December 2003;7 NOTING that submissions by the Redress Trust, the Lawyer’s Committee for Human Rights and the International Commission of Jurists (“Redress”) as amicus

1 These Preliminary Motions were fĳiled under Case No. SCSL-2003-07 and Case No. SCSL-2003-10 respectively. Following the Decision and Order on Prosecution Motions for Joinder of 27 January 2004, and the subsequent Registry Decision for the Assignment of a new Case Number of 3 February 2004, they have been assigned the new case numbers referred to herein. 2 Prosecution Response to the First Defence Preliminary Motion (Lomé Agreement), (“Kallon Response”), 23 June 2003. 3 Prosecution Response to the Defence Application in Respect of Jurisdiction and Defects in Indictment, 29 September 2003. 4 Order pursuant to Rule 72(E) and (F): Defence Preliminary Motion based on Lack of Jurisdiction/ Abuse of Process: Amnesty Provided by the Lomé Accord, Case No. SCSL-2003-07, 30 September 2003; Order pursuant to Rule 72(E): Application by Brima Bazzy Kamara in Respect of Jurisdiction and Defects in the Indictment, Case No. SCSL-2003-10 PT, 9 October 2003. 5 Written Submissions in Support of Oral Argument: Preliminary Motion based on Lack of Jurisdiction/Abuse of Process: Amnesty provided by the Lomé Accord, 3 November 2003. 6 Further Written Submissions on behalf of Morris Kallon: Preliminary Motion based on Lack of Jurisdiction/Abuse of Process: Amnesty Provided by Lomé Accord, (“Kallon Further Submissions”), 28 November 2003. 7 Prosecution Response to the Further Written submissions on behalf of Morris Kallon (Lomé Accord), (“Prosecution Response to Kallon Further Submissions”), 3 December 2003. interlocutory decisions – appeals chamber 927 curiae were fĳiled on 24 October 2003, that the application by Redress to make written and oral submissions as amicus curiae was accepted by the Appeals Chamber on 1 November 20038 and that subsequent Post-Hearing Written Submissions were fĳiled by Redress on 21 November 2003;9 NOTING FURTHER that at the invitation of the Appeals Chamber submissions were fĳiled by amicus curiae Professor Diane Orentlicher on 27 October 2003 (“Orentlicher amicus brief”); and that with leave of the Court written submissions were fĳiled on behalf of the accused Moinina Fofana10 and Augustine Gbao11 intervening, in support of oral arguments; HAVING CONSIDERED THE ORAL AND WRITTEN SUBMISSIONS OF THE PARTIES, AMICI CURIAE AND INTERVENERS; HEREBY DECIDES:

I. Grounds of the Preliminary Motion

A. Introduction 1. In summary, the grounds of the two applications, in so far as they are relevant to this Decision, are that the Government of Sierra Leone is bound to observe the amnesty granted under Article IX of the Peace Agreement between the Government of Sierra Leone and the Revolutionary United Front of Sierra Leone (“Lomé Agreement”);12 the Special Court should not assert jurisdiction over crimes committed prior to July 1999 when an amnesty was granted by virtue of the Lomé Agreement and it would be an abuse of process to allow the prosecution of any of the alleged crimes pre-dating the Lomé Agreement. 2. The Prosecution put its opposition to the Preliminary Motions in several ways. The Prosecution argues that the Special Court is bound by Article 10 of its

8 Prosecutor v. Kallon, Case No. SCSL-2003-07, Decision on Application by the Redress Trust, Lawyers Committee for Human Rights and the International Commission of Jurists for Leave to fĳile Amicus Curiae Brief and to present oral submissions, 1 November 2003. 9 Further Written Submissions on behalf of the Redress Trust and the Lawyers’ Committee for Human Rights and the International Commission of Jurists, 21 November 2003. 10 Reply to the Prosecution Response to the Motion on behalf of Moinina Fofana for leave to intervene as an interested party in the Preliminary Motion fĳiled by Mr. Kallon based on a lack of Jurisdiction: Amnesty provided by the Lomé Accord and Substantive Submissions, 31 October 2003 (“Fofana Submissions”). 11 Arguments on behalf of Augustine Gbao in Support of Morris Kallon’s Preliminary Motion based on Lack of Jurisdiction/Abuse of Process in the Event of Permission being Granted to Intervene, 30 October 2003 (“Gbao Submissions”). 12 Peace Agreement between the Government of Sierra Leone and the Revolutionary United Front of Sierra Leone (RUF/SL), Lomé, 7 July 1999 (“Lomé Agreement”). 928 part iii

Statute and that the Lomé Agreement, being an agreement between two national bodies, is limited in efffect to domestic law and was, in any event, not intended to cover crimes mentioned in Articles 2 to 4 of the Statute of the Special Court (“Statute”).13 Furthermore, it is contended that given the gravity of the crimes charged, discretion should not be exercised to grant a stay of proceedings on the basis that there has been an abuse of process of the Court.

B. Historical Background 3. It is commonly said, though no such factual fĳinding is made and can be made at this stage, that on 23 March 1991 forces of the Revolutionary United Front (RUF) entered Sierra Leone from Liberia and launched a rebellion to overthrow the one- party rule of the All Peoples’ Congress (APC). That was believed to be the beginning of the armed conflict in Sierra Leone which lasted until 7 July 1999 when the parties to the conflict signed the Lomé Agreement. There was an earlier peace agreement between the Government of Sierra Leone and RUF signed in Abidjan on 30 November 1996 (“Abidjan Peace Agreement”)14 but that collapsed soon after it was signed. 4. On 7 July 1999 the Lomé Agreement was signed between the Government of Sierra Leone and the RUF, the parties to the Agreement having met in Lomé, Togo from 25 May 1999 to 7 July 1999 under the auspices of the Chairman of ECOWAS at the time, President Gnassingbe Eyadema. 5. Among other things, the parties to the Lomé Agreement stated that they were moved “by the imperative need to meet the desire of the people of Sierra Leone for a defĳinitive settlement of the fratricidal war in their country and for genuine national unity and reconciliation.”15 6. Article 34 of the Lomé Agreement shows that the Government of the Togolese Republic, the United Nations, the OAU, ECOWAS and the Commonwealth of Nations stood as moral guarantors of the implementation of the Lomé Agreement with integrity and in good faith by both parties.

C. Article 9 of the Lomé Agreement 7. At the centre of these proceedings is Article 9 of the Lomé Agreement which provides as follows:

13 Statute of the Special Court for Sierra Leone, 16 January 2002. 14 Peace Agreement between the Government of Sierra Leone and the Revolutionary United Front of Sierra Leone, Abidjan, 30 November 1996, UN Doc. S/1996/1034. 15 Lomé Agreement, Preamble. interlocutory decisions – appeals chamber 929

ARTICLE IX PARDON AND AMNESTY 1. In order to bring lasting peace to Sierra Leone, the Government of Sierra Leone shall take appropriate legal steps to grant Corporal Foday Sankoh absolute and free pardon. 2. After the signing of the present Agreement, the Government of Sierra Leone shall also grant absolute and free pardon and reprieve to all combatants and collaborators in respect of anything done by them in pursuit of their objectives, up to the time of the signing of the present Agreement. 3. To consolidate the peace and promote the cause of national reconciliation, the Government of Sierra Leone shall ensure that no offfĳicial or judicial action is taken against any member of the RUF/SL, ex-AFRC, ex-SLA or CDF in respect of anything done by them in pursuit of their objectives as members of those organisations since March 1991, up to the signing of the present Agreement. In addition, legislative and other measures necessary to guarantee immunity to former combatants, exiles and other persons, currently outside the country for reasons related to the armed conflict shall be adopted ensuring the full exercise of their civil and political rights, with a view to their reintegration within a framework of full legality. 8. By a letter dated 12 June 2000 written to the President of the Security Council by the President of Sierra Leone on behalf of the Government and people of Sierra Leone,16 the President of Sierra Leone requested the President of the Security Council to initiate a process whereby the United Nations would resolve on the setting up of a Special Court for Sierra Leone. 9. That letter reads as follows: 12 June 2000 On behalf of the Government and people of the Republic of Sierra Leone, I write to request you to initiate a process whereby the United Nations would resolve on the setting up of a special court for Sierra Leone. The purpose of such a court is to try and bring to credible justice those members of the Revolutionary United Front (RUF) and their accomplices responsible for committing crimes against the people of Sierra Leone and for the taking of United Nations peacekeepers as hostages. This necessi- tates the establishment of a strong court in order to bring and maintain peace and security in Sierra Leone and the West African subregion. For this purpose, I request assistance from the United Nations Security Council in establishing a strong and credible court that will meet the objectives of bringing justice and ensuring lasting peace. To achieve this, a quick response from the Secretary-General and the Security Council is necessary. As you are aware, the atrocities committed by the RUF in this country for nearly 10 years in its campaign of terror have been described generally as the worst in the

16 Annex to Letter dated 9 August 2000 from the Permanent Representative of Sierra Leone to the United Nations addressed to the President of the Security Council, S/2000/786, 10 August 2000. 930 part iii

history of civil conflicts. In July 1999, my Government and the leadership of the RUF signed the Lomé Peace Agreement. The aim of this Agreement was to bring peace and a permanent cessation to those atrocities and the conflict. As a prize for such peace, my Government even conceded to the granting of total amnesty to the RUF leadership and its members in respect of all the acts of terrorism committed by them up to the date of the signing of that Peace Agreement. But the RUF leadership have since reneged on that Agreement, and have resumed their atrocities, which have always had as their targets mainly civilians, including women and children. They still murder and amputate them and use the women and girls as sex slaves. Lately, they have abducted over 500 United Nations peacekeepers and seized their arms, weapons and uniforms, and even killed some of the peacekeepers. This is in spite of a provision in the Lomé Peace Agreement itself requiring both my Government and the RUF to ensure the safety of these peacekeepers. In the process, the RUF have committed crimes against Sierra Leonean and international law and it is my Government’s view that the issue of individual accountability of the leadership of the RUF for such crimes should be addressed immediately and that it is only by bringing the RUF leadership and their collaborators to justice in the way now requested that peace and national reconciliation and the strengthening of democracy will be assured in Sierra Leone. I am aware of similar effforts made by the United Nations to respond to similar crimes against humanity in Rwanda and the former Yugoslavia. I ask that similar considerations be given to this request. I believe that crimes of the magnitude committed by the RUF in this country are of concern to all persons in the world, as they greatly diminish respect for international law and for the most basic human rights. It is my hope that the United Nations and the international community can assist the people of Sierra Leone in bringing to justice those responsible for those grave crimes. Because of the sensitivity aroused in Sierra Leone and around the world by the activities of the RUF and their collaborators and the need to dispose of the matters to be tried at the proposed tribunal without delay, I am inviting you or the Security Council to send to Sierra Leone immediately a rapid response team of inquiry to assess the needs and concerns regarding my Government’s ability to provide efffective, secure, fair and credible justice. With regard to the magnitude and extent of the crimes committed, Sierra Leone does not have the resources or expertise to conduct trials for such crimes. This is one of the consequences of the civil conflict, which has destroyed the infrastructure, including the legal and judicial infrastructure, of this country. Also, there are gaps in Sierra Leonean criminal law as it does not encompass such heinous crimes as those against humanity and some of the gross human rights abuses committed by the RUF. It is my view, therefore, that, unless a court such as that now requested is established here to administer international justice and humanitarian law, it will not be possible to do justice to the people of Sierra Leone or to the United Nations peacekeepers who fell victim to hostage-taking. I attach hereto a suggested framework for the type of court intended (see enclosure). As you can see, the framework is meant to produce a court that will meet international standards for the trial of criminal cases while at the same time having a interlocutory decisions – appeals chamber 931

mandate to administer a blend of international and domestic Sierra Leonean law on Sierra Leonean soil. (Signed) Alhaji Ahmad Tejan Kabbah President of the Republic of Sierra Leone 10. After reiterating that “the situation in Sierra Leone continues to constitute a threat to international peace and security in the region”17 and expressing “concern at the very serious crimes committed within the territory of Sierra Leone against the people of Sierra Leone and United Nations and associated personnel and at the prevailing situation of impunity”18 the Security Council adopted Resolution 1315 (2000), on its own independent assessment of the situation, whereby the Secretary-General was mandated to negotiate an agreement with the Government of Sierra Leone to create an independent special court consistent with the resolution. 11. In a clause in the Preamble to Resolution 1315, the Security Council reafffĳirmed the importance of compliance with international humanitarian law; that persons who commit or authorise serious violations of international humanitarian law are individually responsible and accountable for those violations; and that the international community will exert every efffort to bring those responsible to justice in accordance with international standards of justice, fairness and due process of law.19 The establishment of the Special Court was thus an implementation of the determination of the Security Council to bring those responsible for serious violations of international humanitarian law to justice.

D. The Special Court for Sierra Leone 12. On 16 January 2002, after a successful negotiation between the Secretary- General and the Government of Sierra Leone, an agreement was entered into by the United Nations and the Government of Sierra Leone whereby the Special Court for Sierra Leone was established (“Agreement”).20 13. The Special Court was established for the sole purpose of prosecuting 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. The competence of the Special Court was extended in its Statute by the addition in Article 1 of the words “including those

17 SC Res. 1315 (2000), 14 August 2000, Preamble. 18 Ibid. 19 Ibid. emphasis added. 20 Agreement between the United Nations and the Government of Sierra Leone on the Establishment of a Special Court for Sierra Leone, 16 January 2002 (“Agreement”). 932 part iii leaders who, in committing such crimes, have threatened the establishment of and implementation of the peace process in Sierra Leone.” 14. The Special Court, though established by an agreement between the United Nations and the Government of Sierra Leone, is an autonomous and independent institution vested with juridical capacity by Article 11 of the Agreement. The involvement of the Government of Sierra Leone in the Special Court after its establishment is defĳined by the Agreement. It is limited to participation in the appointment of judges, prosecutor and deputy prosecutor, as provided, respectively, in Articles 2 and 3 of the Agreement, and participation in the Management Committee as provided for in Article 7 of the Agreement. The Sierra Leone Government undertook certain responsibilities of a non-managerial nature in regard to the Special Court, such as an obligation to assist in the provision of premises for the Court, and such utilities, facilities and other services as may be necessary for its operation;21 to grant immunity and inviolability to counsel of a suspect or an accused as provided for in Article 14; and to co-operate with the Special Court as provided for in Article 17. 15. The Statute of the Special Court defĳined the jurisdiction of the Court as follows: Article 1: Competence of the Special Court 1 The Special Court shall, except as provided in subparagraph (2), have the power to prosecute persons who bear the greatest responsibility for serious violations of international humanitarian law and Sierra Leonean law committed in the territory of Sierra Leone since 30 November 1996, including those leaders who, in committing such crimes, have threatened the establishment of and implementation of the peace process in Sierra Leone. 2. Any transgressions by peacekeepers and related personnel present in Sierra Leone pursuant to the Status of Mission Agreement in force between the United Nations and the Government of Sierra Leone or agreements between Sierra Leone and other Governments or regional organizations, or, in the absence of such agreement, provided that the peacekeeping operations were undertaken with the consent of the Government of Sierra Leone, shall be within the primary jurisdiction of the sending State. 3. In the event the sending State is unwilling or unable genuinely to carry out an investigation or prosecution, the Court may, if authorized by the Security Council on the proposal of any State, exercise jurisdiction over such persons. Article 2: Crimes against humanity The Special Court shall have the power to prosecute persons who committed the following crimes as part of a widespread or systematic attack against any civilian population:

21 Article 5 of the Agreement. interlocutory decisions – appeals chamber 933

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.

Article 3: Violations of Article 3 common to the Geneva Conventions and of Additional Protocol II The Special Court shall have the power to prosecute persons who committed or ordered the commission of serious violations of article 3 common to the Geneva Conventions of 12 August 1949 for the Protection of War Victims, and of Additional Protocol II thereto of 8 June 1977. These violations shall include: a. Violence to life, health and physical or mental well-being of persons, in particular murder as well as cruel treatment such as torture, mutilation or any form of corporal punishment; b. Collective punishments; c. Taking of hostages; d. Acts of terrorism; e. Outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault; f. Pillage; g. The passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court, afffording all the judicial guarantees which are recognized as indispensable by civilized peoples; h. Threats to commit any of the foregoing acts.

Article 4: Other serious violations of international humanitarian law The Special Court shall have the power to prosecute persons who committed the following serious violations of international humanitarian law: a. Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities; b. Intentionally directing attacks against personnel, installations, material, 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 to the protection given to civilians or civilian objects under the international law of armed conflict; c. Conscripting or enlisting children under the age of 15 years into armed forces or groups or using them to participate actively in hostilities. Article 5: Crimes under Sierra Leonean law The Special Court shall have the power to prosecute persons who have committed the following crimes under Sierra Leonean law: 934 part iii

a. Offfences relating to the abuse of girls under the Prevention of Cruelty to Children Act, 1926 (Cap. 31): (i) Abusing a girl under 13 years of age, contrary to section 6; (ii) Abusing a girl between 13 and 14 years of age, contrary to section 7; (iii) Abduction of a girl for immoral purposes, contrary to section 12. b. Offfences relating to the wanton destruction of property under the Malicious Damage Act, 1861: (i) Setting fĳire to dwelling – houses, any person being therein, contrary to section 2; (ii) Setting fĳire to public buildings, contrary to sections 5 and 6; (iii) Setting fĳire to other buildings, contrary to section 6.

E. The Three Phases of the Sierra Leone Situation 16. It is evident from the brief historical background that the events starting from the launching of the rebellion in March 1991 and ending with the establishment of the Special Court, described here as ‘the Sierra Leone situation,’ have three discernible phases, namely: (1) the phase of armed conflict; (2) the Peace Agreement phase and (3) the Justice phase. There are legal perspectives which have some bearing on the issues raised by the Preliminary Motions to each of these phases of the Sierra Leone situation. 17. It must be assumed, since the facts of the case have not been gone into, that the phase of armed conflict was of such a degree as to be recognised as an insur- gency, passing beyond the threshold of a rebellion that could be dealt with internally as a matter of domestic security and to be regulated by domestic law, to a level of conflict that had to be regulated by Common Article 3 of the Geneva Conventions. The parties, whether from the Government side or the insurgents, were thereby subjected to the obligations imposed by international law in a situation of internal armed conflict. The competence of the Special Court to prosecute persons who committed violations of Common Article 3 is the basis of that assumption. 18. The Peace Agreement Phase signifĳies the end of the armed conflict by means of a peaceful settlement. One legal consequence of that phase is that international humanitarian law would normally cease to be applicable to any act of violence in the peace period unless, notwithstanding what would have been regarded as a peaceful resolution, one party or both parties, in breach thereof, continued the armed conflict. Presumably, it is in further protection of the peace process that the competence of the Special Court includes in Article 1(1) of the Statute the prosecution of “those leaders who, in committing such crimes, have threatened the establishment of and implementation of the peace process in Sierra Leone.” Thereby, impunity is denied to any such person, notwithstanding that there had been a interlocutory decisions – appeals chamber 935 peace agreement which constituted some sort of peaceful resolution of the conflict. 19. The Justice Phase is that phase in which participants in the armed conflict have to answer for crimes committed in the course of the armed conflict. The justice phase itself involves separating what is in the exclusive domain of the municipal authority to be resolved under municipal law from what is in the concurrent jurisdiction of that authority and of the international community to be resolved by application purely of international law.

F. Prosecutorial Choice of Sierra Leone 20. 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.22 The State concerned may decide to prosecute the rebels. It may decide to pardon them, generally or partially, conditionally or unconditionally. It is where, and in this case because, the conduct of the participants in the armed conflict is alleged to amount to international crime that the question arises whether in such a situation a State has the same choice to dispense with the prosecution of the alleged offfenders. Furthermore, if it claims to have such choice and exercises it to grant amnesty to alleged offfenders, does this conclusively bar prosecution for the alleged commission of grave crimes against humanity in an international tribunal or, for that matter, by another state claiming universal jurisdiction to prosecute? 21. The Preliminary Motions with which this ruling is concerned arose because the Government of Sierra Leone included in the Lomé Agreement Article IX which contained ‘Pardon and Amnesty’ provisions in terms already stated above, whereby, among other things, it undertook to “grant absolute and free pardon and reprieve to all combatants and collaborators” and undertook also to “ensure that no offfĳicial or judicial action is taken against any member of the RUF/SL, ex-AFRC, ex-SLA or CDF in respect of anything done by them in pursuit of their objectives as members of those organizations.”23 The Motions argue, in efffect, that the amnesty granted by the Lomé Agreement in Article IX amounts to an unconditional pardon and that, as such, it was a choice validly made by the Sierra Leone Government that conclusively precluded the prosecution of the accused Kallon and Kamara for any crime whatsoever allegedly committed before the date of the Lomé Agreement by this Court.

22 See M. N. Shaw, International Law (5th ed., 2003) p. 1040. 23 See para. 7 above. 936 part iii

II. ARGUMENTS OF THE PARTIES

22. Counsel for the accused Kallon made submissions on the following main lines:24 a) The Lomé Accord was binding on the Government of Sierra Leone; b) The abuse of process doctrine applies to proceedings before the Special Court and crimes of a serious nature; c) Article 10 of the Special Court Statute is not a bar to the application of the abuse of process doctrine; d) Not all amnesties, including the Lomé Accord, are unlawful under international law; e) Morris Kallon acted in good faith pursuant to the Lomé Accord. 23. It is not necessary to approach the issues raised by the Preliminary Motions strictly on those lines. It sufffĳices to consider the issues raised and to advert to submissions made by counsel for the parties and by the amici curiae in the discussion of those issues.

24. The submissions by counsel for Kallon on the Lomé Agreement proceeded on the following lines: as part of the Agreement the Government of Sierra Leone stated that it would, in order to “consolidate the peace and promote the cause of national reconciliation,” ensure that “no offfĳicial or judicial action is taken against any member of the RUF/SL, ex-AFRC, ex-SLA or CDF in respect of anything done by them in pursuit of their objectives as members of those organisations, since March 1991, up to the time of signing the present agreement.” 25

25. Defence counsel for Kallon pointed out that the Lomé Accord was ratifĳied by the Parliament of Sierra Leone on 15 July 1999 with the passage of the Lomé Peace Agreement (Ratifĳication) Act, 1999 (“Lomé Act”).26 According to the Defence, since the Preamble to the Lomé Act states that as the Lomé Agreement contained provisions which “alter the law of Sierra Leone and impose a charge on the Consolidated Fund and other funds of Sierra Leone” it was necessary for Parliament to ratify it pursuant to Section 40(4) of the Constitution of Sierra Leone, 1991 (“The Constitution”). Such ratifĳication is only required by Section 40(4) of the Constitution where the President has entered a “Treaty, Agreement, or Convention” in the name of Sierra Leone. Thus, according to the Defence, the Lomé Accord is governed by the 1969 Vienna Convention on the Law of Treaties.27

24 See Kallon Preliminary Motion. 25 Article IX(3) Lomé Agreement. 26 Lomé Peace Agreement (Ratifĳication) Act, 15 July 1999. 27 Adopted 23 May 1969, entered into force 27 January 1980, UNTS vol. 1155, 331. interlocutory decisions – appeals chamber 937

26. Defence Counsel for Kallon argued that the Special Representative of the Secretary-General (“SRSG”) purportedly appended a disclaimer to the Lomé Agreement to the efffect that the UN did not recognise the validity of the amnesty in respect of war crimes, crimes against humanity or genocide. The Defence argued that the Secretary-General’s Report only states that an instruction was given to the SRSG – not that it was carried out.28 The Defence observed that it is not clear when and how such a disclaimer was made – whether orally or in writing at the time of signature or indeed sometime after 7 July 1999. Although the Orentlicher Amicus Brief stated that the instructions given to the SRSG to append a disclaimer were issued pursuant to policy guidelines issued by the UN Secretary- General to assist envoys and representatives involved in peace negotiations,29 that cannot be right according to Kallon’s defence. The Amicus Brief implied that the policy was issued pursuant to a Statement of Secretary-General Kofĳi Annan on 10 December 1999. Thus, the Defence argued, it would appear that the guidelines were formulated after the adoption of the Lomé Agreement, perhaps in order to avoid any repeat of the confusion or misunderstanding as to the UN’s position resulting from Lomé. The SRSG’s disclaimer is and was limited to any action to be taken by the UN, and the Government of Sierra Leone itself was expected to abide by and honour the amnesty provision. 27. The Defence argued that at the time of signing the Lomé Agreement it was widely accepted that the price of peace was an amnesty for the warring factions, as the various members of the Security Council explained when adopting Resolution 1260.30 28. The Defence refers to the State Opening of Parliament (16 June 2000) where President Kabbah said: “My Government for its part remains committed to the Lomé Peace Accord, but the RUF must now demonstrate its own commitment and sincerity, in very practical ways, to convince the people of this country that they will implement the letter and spirit of the Accord and ensure lasting peace and prosperity in Sierra Leone.”31 29. Furthermore, there was the statement to the Truth and Reconciliation Commission on 5 August 2003 as follows: We had resisted the persuasion of the international community for the exclusion of war crimes, crimes against humanity and against international humanitarian law

28 The report referred to is the Report of the Secretary-General on the Establishment of a Special Court for Sierra Leone, UN DOC S/2000/915, 4 October 2000. 29 Orentlicher Amicus Brief, p. 3. 30 SC Res. 1260 (1999), 20 August 1999. 31 His Excellency the President’s Address on the Occasion of the State Opening of the Fourth Session of the First Parliament of the Second Republic of Sierra Leone, 16 June 2000, http://www .sierra-leone.org/kabbah061600.html. 938 part iii

from the applicability of the amnesty provision in the Lomé Agreement. We did this deliberately…. Thus, we put beyond the ability and outside the jurisdiction of our domestic courts power over the prosecution of crimes committed before the signing of the Lomé Agreement since the amnesty granted amount [sic] to a constitutional bar to any form of prosecution in our domestic courts in respect of the offfences amnestied.32 30. For their part counsel for Fofana argued fĳirst, that the Lomé Agreement is an agreement under international law because it was signed by six states and a number of international organisations as well as by the RUF which, it was argued, was an entity subject to rights and obligations which as de facto authority possessed limited international personality; second, that obligations arising from the Lomé Agreement, regarded as a treaty, cannot be altered by later treaties without the consent of the parties and, third, that international law does not prohibit the granting of amnesties.33 31. Counsel for Gbao submitted in line with the submissions made by the other Defence counsel that the Lomé Agreement created an internationally binding obligation not to prosecute the benefĳiciaries of the amnesty under the Agreement.34 32. The Prosecution’s response was that the Lomé Agreement is not a treaty but an agreement signed between two national bodies. It was submitted that others who signed the agreement did not do so as parties but as moral guarantors who were facilitating and supporting the conclusion of the Agreement; the Lomé Agreement has no force under international law but was an agreement which had no legal basis until it was ratifĳied by the enactment of the Lomé Act which itself had force only as a domestic law; the Lomé Agreement is no longer efffective in domestic law since the Lomé Ratifĳication Act had been impliedly repealed by the enactment of the Special Court (Ratifĳication) Act 2002 (“the Implementing Legislation”); the disclaimer by the SRSG at the time of the signature of the Lomé Agreement that Article IX shall not apply to international crimes of genocide, crimes against humanity, war crimes and other serious violations of international humanitarian law was a correct interpretation by the UN of Article IX, and, on that correct interpretation, the Lomé Agreement does not apply to the prosecution of persons pursuant to the Statute of the Special Court. 33. In the arguments presented by the Redress Trust (“Redress”) as amicus curiae, it was submitted that the Special Court would in efffect be questioning a

32 A Statement by His Excellency the President Alhaji Dr. Ahmad Tejan Kabbah made before the Truth and Reconciliation Commission on Tuesday 5 August 2003, para. 35, Sierra Leone Web, http://www.sierra-leone.org/documents-kabbah.html. 33 See Fofana Submissions, paras. 11-28. 34 Gbao Submissions, para. 14. interlocutory decisions – appeals chamber 939 measure taken by the Security Council under Chapter VII of the UN Charter if it took it upon itself to review the validity of the exception of the applicability of the Lomé amnesty for serious international crimes that was specifĳically requested in Resolution 1315. The amnesty granted by the Government of Sierra Leone cannot be interpreted as covering violations of international humanitarian law. The Lomé amnesty was a domestic amnesty. Premised on an obligation to prosecute or extradite persons accused of crimes under international law, it was submitted that application of an amnesty would be an unlawful interference with that duty. Appended to the written submissions of Redress are numerous useful materials in support of the submissions. 34. Professor Diane Orentlicher who was invited as amicus curiae made useful and extensive submissions which can be summarised as follows. As Article IX of the Lomé Agreement addressed and could have legal force in respect of the national legal system of Sierra Leone only, the amnesty does not legally circum- scribe the jurisdiction of the Special Court which has been established outside the national court system and operates independently of the Sierra Leonean national system. Any amnesty that encompasses crimes against humanity, serious war crimes, genocide or torture would be of doubtful validity under international law. However, Article IX of the Lomé Agreement was addressed to the question of prosecutions before national courts of Sierra Leone. States cannot use domestic legislation to bar international criminal liability. 35. Professor Orentlicher argued that there can be no amnesty where a treaty requires prosecution, or has been interpreted or would be likely to be interpreted by their supervisory bodies as requiring state parties to investigate and, if warranted, prosecute serious violations.

III. Discussion

A. The Status of the Lomé Agreement 36. In view of the submissions made and in order to put the issues in proper perspective, the starting point is to determine the character of the Lomé Agreement. The Defence argues that it is an international agreement having the character of a treaty. The Prosecution, the amici curiae agreeing, argue that it is an agreement within municipal law between two bodies within the state. 37. In regard to the nature of a negotiated settlement of an internal armed conflict it is easy to assume and to argue with some degree of plausibility, as Defence counsel for the defendants seem to have done, that the mere fact that in addition to the parties to the conflict, the document formalising the settlement is signed by foreign heads of state or their representatives and representatives of international 940 part iii organisations, means the agreement of the parties is internationalised so as to create obligations in international law. 38. Indeed, such argument fĳinds support in the opinion of Professor Kooijmans.35 He used as an example the peace accord of 1994 embodied in the Lusaka Protocol concluded to end the armed conflict in Angola. The Lusaka Protocol was signed by the Presidents of the Republic of Angola and of UNITA and by the SRSG of the UN as mediator in the presence of the representatives of the observer states, the United States, Russia and Portugal. Admittedly, the Lusaka Protocol was not an inter-state agreement. However, upon UNITA failing to comply with the agreement, the Security Council by Resolution 1127 (1997) ordered mandatory travel sanctions to be imposed on senior UNITA offfĳicials; and if UNITA continued its obstruction the Council would take further measures such as trade and fĳinancial restrictions. The Council emphasised the “urgent need for the Government of Angola and in particular UNITA to complete without further delay the implementation of their obligations under the…Lusaka Protocol…and the relevant Security Council resolutions”36 and deplored the failure by UNITA to comply with its obligations under the relevant peace accords (of which the Lusaka Protocol was one) and the Security Council resolutions. It then demanded that UNITA implement its obligations under the Lusaka Protocol. The Council determined that the resulting situation in Angola constituted a threat to international peace and security in the region, and in consequence acted under Chapter VII of the UN Charter in the measures it took. Upon these facts, Kooijmans was of the opinion as follows in regard to the Lusaka Protocol and the obligation it created: The fact that it is concluded between a government and an insurrectionist party does not in itself detract from its international character. The United Nations as an organization of states has been deeply involved in the conflict, peace keeping forces have been deployed, the Secretary-General through his Special Representative has continuously mediated. If a settlement is reached which is co-signed by the Secretary- General’s Representative, the non-state entity must be assumed not only to have committed itself to its counterpart, the Government but also to the United Nations.37 39. It is manifest that the learned commentator assumed that the Lusaka Protocol, though not in the form of a ‘genuine international instrument’ drew its ‘internationalised character’ from the factors he stated in the passage above. It is difffĳicult to agree with this conclusion. The role of the UN as a mediator of peace, the presence of a peace-keeping force which generally is by consent of the State

35 P.H. Kooijmans, “The Security Council and Non-State Entities as Parties to Conflicts,” in K. Wellens (ed.), International Law: Theory and Practice, Essays in Honour of Eric Suy (Kluwer Law International, 1998), pp. 333-346. 36 SC Res. 1127 (1997), 28 August 1997. 37 Kooijmans (n. 33 above), p. 338. interlocutory decisions – appeals chamber 941 and the mediation effforts of the Secretary-General cannot add up to a source of obligation to the international community to perform an agreement to which the UN is not a party. As will be seen, action taken by the Security Council upon failure of a party to implement the peace agreement derives from Chapter VII of the UN Charter and not from the peace agreement. 40. Almost every conflict resolution will involve the parties to the conflict and the mediator or facilitator of the settlement, or persons or bodies under whose auspices the settlement took place but who are not at all parties to the conflict, are not contracting parties and who do not claim any obligation from the contracting parties or incur any obligation from the settlement. 41. In this case, the parties to the conflict are the lawful authority of the State and the RUF which has no status of statehood and is to all intents and purposes a faction within the state. The non-contracting signatories of the Lomé Agreement were moral guarantors of the principle that, in the terms of Article XXXIV of the Agreement, “this peace agreement is implemented with integrity and in good faith by both parties.” The moral guarantors assumed no legal obligation. It is recalled that the UN by its representative appended, presumably for avoidance of doubt, an understanding of the extent of the agreement to be implemented as not including certain international crimes. 42. An international agreement in the nature of a treaty must create rights and obligations regulated by international law so that a breach of its terms will be a breach determined under international law which will also provide principle means of enforcement. The Lomé Agreement created neither rights nor obligations capable of being regulated by international law. An agreement such as the Lomé Agreement which brings to an end an internal armed conflict no doubt creates a factual situation of restoration of peace that the international community acting through the Security Council may take note of. That, however, will not con- vert it to an international agreement which creates an obligation enforceable in international, as distinguished from municipal, law. A breach of the terms of such a peace agreement resulting in resumption of internal armed conflict or creating a threat to peace in the determination of the Security Council may indicate a reversal of the factual situation of peace to be visited with possible legal consequences arising from the new situation of conflict created. Such consequences such as action by the Security Council pursuant to Chapter VII arise from the situation and not from the agreement, nor from the obligation imposed by it. Such action cannot be regarded as a remedy for the breach. A peace agreement which settles an internal armed conflict cannot be ascribed the same status as one which settles an international armed conflict which, essentially, must be between two or more warring States. The Lomé Agreement cannot be characterised as an international instrument. That it does not have that character does not, however, answer 942 part iii the further question whether, as far as grave crimes such as are stated in Articles 2 to 4 of the Statute of the Court are concerned, it offfers any promise that is permissible or enforceable in international law. 43. It was argued by Defence counsel that since the Lomé Agreement was rati- fĳied by the Parliament of Sierra Leone pursuant to the proviso to sub-section 4 of section 40 of the Constitution, it is a treaty or an agreement in the nature of a treaty. Subsection 4 of section 40 of the Constitution provided that: … any Treaty, Agreement or Convention executed by or under the authority of the President which relates to any matter within the legislative competence of Parliament, or which in any way alters the law of Sierra Leone or imposes any charge on, or authorises any expenditure out of, the Consolidated Fund or any other fund of Sierra Leone, and any declaration of war made by the President shall be subject to ratifĳication by Parliament. 44. The application of that sub-section to the Lomé Agreement does not make the agreement a treaty or an international agreement. There is nothing obnoxious in construing the word “Agreement” in section 40 in its primary and natural sense which may not necessarily imply an international agreement. Besides, what is a treaty or an international agreement is not determined by the classifĳication of a transaction by a State, but by whether the agreement is regarded as such under international law and regulated by international law.

B. Do Insurgents Have Treaty-Making Capacity? 45. Notwithstanding the absence of unanimity among international lawyers as to the basis of the obligation of insurgents to observe the provisions of Common Article 3 to the Geneva Conventions,38 there is now no doubt that this article is binding on States and insurgents alike and that insurgents are subject to international humanitarian law. That fact, however, does not by itself invest the RUF with international personality under international law. 46. Common Article 3 of the Geneva Conventions recognises the existence of “Parties to the conflict.” The penultimate sentence of Common Article 3 provides that: “The parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention.” But the fĳinal clause of Common Article 3 also provides that “[t]he application of the preceding provisions shall not afffect the legal status of the Parties to the conflict.” It has been explained that the penultimate sentence “underlines the fact that parties to an internal conflict are bound only to observe

38 See e.g. Convention Relative to the Treatment of Prisoners of War, Geneva, 12 August 1949, 75 UNTS 135. interlocutory decisions – appeals chamber 943

Article 3, remaining free to disregard the entirety of the remaining provisions in each of the Convention”39 and that the fĳinal clause indicates that the insurgents may still be made subject to the State’s municipal criminal jurisdiction. In an authoritative book on international law the view was expressed that: a range of factors needs to be carefully examined before it can be determined whether an entity has international personality and, if so, what right, duties and competences apply in the particular case. Personality is a relative phenomenon varying with the circumstances.40 47. It sufffĳices to say, for the purpose of the present case, that no one has suggested that insurgents are bound because they have been vested with personality in international law of such a nature as to make it possible for them to be a party to the Geneva Conventions. Rather, a convincing theory is that they are bound as a matter of international customary law to observe the obligations declared by Common Article 3 which is aimed at the protection of humanity. No doubt, the Sierra Leone Government regarded the RUF as an entity with which it could enter into an agreement. However, there is nothing to show that any other State had granted the RUF recognition as an entity with which it could enter into legal relations or that the Government of Sierra Leone regarded it as an entity other than a faction within Sierra Leone. 48. Although a degree of organisation of the insurgents may be a factor in determining whether the factual situation of internal armed conflict existed, the distinction must be borne in mind between the factual question whether the insurgents are sufffĳiciently organised and the question of law, with which the issue in these proceedings is concerned, whether as between them and the legitimate government international law regarded them as having treaty-making capacity. International law does not seem to have vested them with such capacity. The RUF had no treaty-making capacity so as to make the Lomé Agreement an international agreement. 49. The conclusion seems to follow clearly that the Lomé Agreement is neither a treaty nor an agreement in the nature of a treaty. However, it does not need to have that character for it to be capable of creating binding obligations and rights between the parties to the agreement in municipal law. The consequence of its not being a treaty or an agreement in the nature of a treaty is that it does not create an obligation in international law.

39 L. Moir, The Law of Internal Armed Conflict, (Cambridge 2002), pp. 63-64. The author at p. 65 was of the view that the application of Article 3 does not constitute a recognition by the government that the insurgents have any authority, and certainly does not amount to a recognition of belliger- ency. He noted that “scholars have since argued that, despite the obvious intention of the framers of the Conventions, Article 3 must confer a measure of international legal personality upon the insurgents, at least they become the holders of rights and obligations under the Article.” 40 Shaw, International Law, p. 176 (note 22 above). 944 part iii

50. The validity of Article IX of the Lomé Agreement in the municipal law of Sierra Leone is not of prime importance in these proceedings since the challenge to its validity had not been based on municipal law. It is expedient for this Court to confĳine itself to the limited questions that arise in regard to Article IX of the Lomé Agreement. These are, ultimately, whether in international law it bars this Court from exercising jurisdiction over the defendants in regard to crimes against humanity allegedly committed by them before the date of the Lomé Agreement, and whether it provides materials that are grounds for this Court to exercise a discretion to stay the proceedings as being an abuse of process.

C. Legal Consequence of Article 10 of the Statute 51. In these proceedings the validity of the constitutive instruments of the Special Court is not in issue. They are the documents that defĳine the competence and jurisdiction of the Court and the provisions with which this Court is bound to comply. The purpose for which the Special Court is established, the nature of the Court as an autonomous, independent institution, and the jurisdiction of the Court have been discussed in paragraphs 12-15 above. 52. The constitutive document of the Special Court (the Agreement) with the Statute of the Court annexed to and forming part of it, is a treaty. 53. Article 1(1) of the Statute of the Special Court spells out the temporal jurisdiction of the Court while Article 10 expressly provides: An amnesty granted to any person falling within the jurisdiction of the Special Court in respect of crimes referred to in Articles 2 to 4 of the present Statute shall not be a bar to prosecution. 54. Counsel for Kallon submitted that notwithstanding Article 10, this Court should exercise a discretion to stay the proceedings as being an abuse of process of the Court. The amnesty is thus not pleaded only as a legal bar to prosecution.41 55. Counsel for Kallon put his submissions, summarised, thus: The claim by the Prosecution and Redress that Article 10 closes the door on any consideration of the applicability of the Lomé Accord to proceedings before the Special Court should not be accepted. The Special Court of Sierra Leone is a ‘hybrid’ court, established pursuant to an agreement between the UN and the Government of Sierra Leone. Thus, it could not have been established without the consent and agreement of the Government of Sierra Leone. If the Special Court were a truly international tribunal, established by Security Council Resolution (as in the case of the International Criminal Tribunals for Rwanda and the Former Yugoslavia), it is

41 Kallon Preliminary Motion, paras. 15-26. interlocutory decisions – appeals chamber 945 accepted that the actions of the Government of Sierra Leone and the amnesty would be of no relevance. This was confĳirmed by the Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia (ICTY) in Prosecutor v. Furundzija42 in which it was held that a domestic amnesty law would not prevent prosecution for torture before the ICTY or indeed in any other foreign jurisdiction. Furundzija did not consider, and is silent on, the circumstances in which it could be an abuse of process to prosecute torture in a domestic court after an undertaking that no criminal prosecution would ensue. In Furundzija the Trial Chamber set out the jurisdictions in which an individual could be prosecuted for torture following an amnesty: (i) international tribunal, (ii) foreign State, or (iii) in their own State under a subsequent regime.43 56. Counsel for Kallon went on to argue that in the Lomé Accord, the Govern- ment of Sierra Leone clearly undertook to “ensure that no offfĳicial or judicial action is taken against any member of the RUF/SL.”44 The Defence submitted that this would include acceding to an extradition request which would require ‘judicial action’ and, moreover, that there can be no doubt that the establishment of a Special Court to prosecute alleged crimes committed in Sierra Leone since 30 November 1996 amounts to both ‘offfĳicial’ and ‘judicial’ action. Thus, according to the Defence, in engaging in negotiations with the UN and then ultimately concluding an agreement with them for the establishment of the Special Court, the Government of Sierra Leone clearly reneged on its undertaking in the Lomé Accord. 57. The Defence argued that Article 10 of the Special Court Statute is not a bar to the Court considering whether the Government’s actions in establishing the Special Court could render prosecution of those granted an amnesty an abuse of process. In Prosecutor v. Dusko Tadic,45 the ICTY Appeals Chamber rejected the Prosecution’s claim that the ICTY lacked authority to review its establishment by the Security Council. The Special Court must be able to do the same. The Defence submitted that as the Court is able to review the lawfulness of its own establishment it may similarly review the applicability of any one provision within its Statute. It may certainly hold that a provision of its Statute should not act as a bar to fĳinding an abuse of process of the court. 58. It was further argued that there was an inconsistent approach to amnesty in that the temporal jurisdiction of the Special Court, pursuant to Article 1(1) of the

42 Prosecutor v. Anto Furundzija, Case No. IT-95-17/1-T, Judgement, 10 December 1998, (“Furundzija Trial Judgement”), para. 155. 43 Ibid. 44 Article IX(3). 45 Prosecutor v. Dusko Tadić, Case No. IT-94-1, Decision on the Defence Motion on Jurisdiction, 10 August 1995. (“Tadic Decision on Jurisdiction”). 946 part iii

Statute commenced on 30 November 1996, selected to coincide with the conclusion of the Abidjan Peace Agreement, whereas Article 14 of the Abidjan Agreement granted an amnesty to all members of the RUF from any offfĳicial or judicial action being taken against them. It was, therefore, contended that it was both arbitrary and illogical of both the UN and the Government of Sierra Leone to appear to honour the terms of one agreement and respect the amnesty granted, but not another.46 59. Moreover, the Defence speculated that the Offfĳice of the Prosecutor may have offfered de facto amnesty to certain individuals known by the Prosecution to have committed offfences similar to those alleged against Kallon. It was speculated whether such individuals had been offfered immunity as a result of cooperation with the Prosecution and after agreement to act as Prosecution witnesses. 60. For his part, counsel for Gbao (intervening) submitted that the Special Court has the jurisdiction to examine its own jurisdiction and, therefore, the power to determine whether it is bound by Article 10 of the Statute. Counsel argued that Article 10 relates to admissibility once jurisdiction is established. He submitted that if the laws of the international community and the law of Sierra Leone indicate that the Court does not have or should not exercise jurisdiction, the Court can make a fĳinding either way, notwithstanding Article 10. The Special Court as a mechanism for maintaining international peace and security as well as national reconciliation, not only has inherent jurisdiction to decline to exercise jurisdiction where there has been an abuse of process of the court, “but also where there has been an abuse of the international legal system.”47 In his submission, the Lomé Agreement created an internationally binding obligation.

IV. The Question Considered

61. That this court will normally not claim jurisdiction to exercise a power of review of a treaty or treaty provisions on the ground that it is unlawful seems evident, except, perhaps in cases where it can be said that the provisions of Article 53 or Article 64 of the Vienna Convention on the Law of Treaties apply. Article 53 reads: A treaty is void, if at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of states as a whole as a norm from which no derogation is permitted and which can be modifĳied only by a subsequent norm of general international law having the same character.

46 Kallon Preliminary Motion, paras. 11-13. 47 Gbao Submissions, para. 9. interlocutory decisions – appeals chamber 947

Article 64 reads: If a new peremptory norm of general international law emerges, any existing treaty which is in conflict with that norm becomes void and terminates. 62. This court cannot question the validity of Article 10 of its Statute on the ground that it is unlawful unless it can be shown that, in the terms of Article 53 or Article 64 of the Vienna Convention or of customary international law it is void. That has not been shown in this case. It may be pointed out at this stage that the decision in Tadic upon which Kallon’s counsel relied as authority for the submission that this Court can pronounce on the lawfulness of its own establishment is not apt. The ICTY is not a treaty-based Tribunal, nor did the Tadic case involve the validity of the provisions of a treaty but rather the extent of the powers of the Security Council, an authority established by the UN Charter. Besides, the question may need to be revisited when the occasion arises as to the legal basis of the power of a body purportedly established as a court to make a binding declaration that it is not a court, when only a court legally established has jurisdiction to make such declaration that would have a binding force! The position would be diffferent were a court duly established to be called upon to declare the limits of its powers. 63. It was argued by counsel for Kallon that by agreeing to Article 10 of the Statute, the Government of Sierra Leone had reneged on the undertaking in Article IX(2) of the Lomé Agreement.48 In interpreting the Lomé Agreement it must be presumed, on the basis of efffectiveness, that the Government of Sierra Leone undertook only that which was within its power to perform. In this sense “offfĳicial and judicial action” mentioned in Article IX(2) of the Lomé Agreement must relate to offfĳicial and judicial action of Sierra Leone and not, as in this case, of the international community. No reasonable tribunal will hold that the Government of Sierra Leone has reneged on its undertaking by agreeing to Article 10 of the Statute which is consistent with the developing norm of international law and with the declaration of the representative of the Secretary-General on the execution of the Lomé Agreement. Besides, even if it can be said that the Government of Sierra Leone had reneged on its undertaking, it would not be valid ground for declaring the invalidity of Article 10. The grounds on which a party to a treaty can challenge its validity, apart from the ground that it is unlawful, are a manifest violation of a rule of internal law of fundamental importance, error, fraud, and corruption and coercion. These grounds operate as vitiating the consent of the party impugning the validity of the treaty and must be raised by the party who claims that its consent had been vitiated. No such grounds have been

48 Oral submissions. 948 part iii raised in this case in which the consent of Sierra Leone to the treaty was itself the grievance of the accused. 64. It is evident that no ground on which the validity of Article 10 of the Statute can be impugned has been established. In the result, the line of reasoning pursued by counsel for the defendants and the intervening defendant, pursued to its logical conclusion, would lead to an absurd conclusion that although Article 10 is valid, since no ground on which its validity can be impugned has been established, this court, nevertheless, is not bound to comply with its provisions, but should, regardless of and contrary to its provisions, hold that by reason of the undertaking of the Government of Sierra Leone to grant an amnesty to the defendants, it has no jurisdiction to try the defendants for crimes committed before the date of the Agreement, or that it could exercise a discretion to stay proceedings on the ground that they amount to an abuse of process of the Court. 65. What rightly falls for consideration is not whether the undertaking in the Lomé Agreement made by the Government of Sierra Leone to grant an amnesty is binding on the Government of Sierra Leone, but whether such undertaking could be efffective in depriving this Court of the jurisdiction conferred on it by the treaty establishing it, and, if it could not be so efffective, whether its existence is a ground for staying the proceedings by reason of the doctrine of abuse of process.

V. The Limits of Amnesty

66. Black’s Law Dictionary defĳines ‘amnesty’ in the following terms: A sovereign act of oblivion for past acts, granted by a government to all persons (or to certain persons) who have been guilty of crime or delict, generally political offfences, – treason, sedition, rebellion, – and often conditioned upon their return to obedience and duty within a prescribed time.49 It is also stated that: Amnesty is the abolition and forgetfulness of the offfence; pardon is forgiveness. (Knote v. U.S. 95 U.S. 149, 152.) The fĳirst is usually addressed to crimes against the sovereignty of the nation, to political offfences, the second condones infractions of the peace of the nation. (Burdick v. United States, 236 U.S. 79, 35 S. Ct. 267, 271, 59 L.Ed).50 67. The grant of amnesty or pardon is undoubtedly an exercise of sovereign power which, essentially, is closely linked, as far as crime is concerned, to the criminal jurisdiction of the State exercising such sovereign power. Where jurisdiction

49 Black’s Law Dictionary (5th Ed., 1983), p. 76. 50 Ibid. interlocutory decisions – appeals chamber 949 is universal,51 a State cannot deprive another State of its jurisdiction to prosecute the offfender by the grant of amnesty. It is for this reason unrealistic to regard as universally efffective the grant of amnesty by a State in regard to grave international crimes in which there exists universal jurisdiction. A State cannot bring into oblivion and forgetfulness a crime, such as a crime against international law, which other States are entitled to keep alive and remember. 68. A crime against international law has been defĳined as “an act committed with intent to violate a fundamental interest protected by international law or with knowledge that the act would probably violate such an interest, and which may not be adequately punished by the exercise of the normal criminal jurisdiction of any state.”52 In re List and Others, the US Military Tribunal at Nuremberg defĳined an international crime as: “such act universally recognized as criminal, which is considered a grave matter of international concern and for some valid reason cannot be left within the exclusive jurisdiction of the State that would have control over it under ordinary circumstances.”53 However, not every activity that is seen as an international crime is susceptible to universal jurisdiction.54 69. The question is whether the crimes within the competence of the Court are crimes susceptible to universal jurisdiction. The crimes mentioned in Articles 2–4 of the Statute are international crimes and crimes against humanity. Indeed, no suggestion to the contrary has been made by counsel. One of the most recent decisions confĳirming the character of such crimes is the Tadić Jurisdiction Decision.55 The crimes under Sierra Leonean law mentioned in Article 5 do not fall into the category of such crimes and are not mentioned in Article 10. 70. One consequence of the nature of grave international crimes against humanity is that States can, under international law, exercise universal jurisdiction over such crimes. In Attorney General of the Government of Israel v. Eichmann the Supreme Court of Israel declared: The abhorrent crimes defĳined in this Law are not crimes under Israeli law alone. These crimes which struck at the whole of mankind and shocked the conscience of nations, are grave offfences against the law of nations itself (delicta juris gentium). Therefore, so far from international law negating or limiting the jurisdiction of countries with respect to such crimes, international law is, in the absence of an

51 Under the universality principle, each and every state has jurisdiction to try particular offfences. See Shaw, International Law, p. 592 (note 22 above). 52 International Law in the Twentieth Century: Essay by Quincy Wright, p. 623, 641. 53 See Kittichaisare, International Criminal Law, (Oxford, 2001), p. 3. 54 “The fact that a particular activity may be seen as an international crime does not itself establish universal jurisdiction and state practice does not appear to have moved beyond war crime, crimes against peace and crimes against humanity in terms of permitting the exercise of such jurisdiction.” See Shaw, International Law, p. 597 (note 22 above). 55 See supra note 45. 950 part iii

International Court, in need of the judicial and legislative organs of every country to give efffect to its criminal interdictions and to bring the criminals to trial. The jurisdiction to try crimes under international law is universal.56 Also, in Congo v. Belgium57 it was held by the International Court of Justice that certain international tribunals have jurisdiction over crimes under international law. This viewpoint was similarly held by the ICTY in Furundzija.58 71. After reviewing international practice in regard to the efffectiveness or otherwise of amnesty granted by a State and the inconsistencies in state practice as regards the prohibition of amnesty for crimes against humanity, Cassese concep- tualised the status of international practice thus: There is not yet any general obligation for States to refrain from amnesty laws on these crimes. Consequently, if a State passes any such law, it does not breach a customary rule. Nonetheless if a court of another State having in custody persons accused of international crimes decide to prosecute them although in their national State they would benefĳit from an amnesty law, such court would not thereby act contrary to general international law, in particular to the principle of respect for the sovereignty of other States.59 The opinion stated above is gratefully adopted. It is, therefore, not difffĳicult to agree with the submission made on behalf of Redress that the amnesty granted by Sierra Leone cannot cover crimes under international law that are the subject of universal jurisdiction. In the fĳirst place, it stands to reason that a state cannot sweep such crimes into oblivion and forgetfulness which other states have jurisdiction to prosecute by reason of the fact that the obligation to protect human dignity is a peremptory norm and has assumed the nature of obligation erga omnes.60 72. In view of the conclusions that have been arrived at in paragraph 69, it is clear that the question whether amnesty is unlawful under international law becomes relevant only in considering the question whether Article IX of the Lomé Agreement can constitute a legal bar to prosecution of the defendants by another

56 Attorney-General of the Government of Israel v. Eichman, (1961) 36 ILR 5, 12. 57 Case concerning Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium) (2002) ICJ Reports, 14 February 2002, para. 61. 58 Furundzija Trial Judgement, para. 14. 59 A. Cassese, International Criminal Law (Oxford, 2003), 315. 60 See Barcelona Traction, Light and Power Co Case (Belgium v. Spain) [1970] ICJ Reports 3; see also Moir, The Law of Internal Armed Conflict, 57, “It has been suggested that three groups of [peremptory] norms exist: those protecting the foundations of law, peace and humanity; those rules of co-operation protecting fundamental common interests; and those protecting humanity to the extent of human dignity, personal and racial equality, life and personal freedom.” See also I. Brownlie, Principles of International Law, (6th Ed., 2003) where prohibition of crimes against humanity is included as an example of a ius cogens norm, p. 489. interlocutory decisions – appeals chamber 951

State or by an international tribunal. There being no such bar, the remaining question is whether the undertaking contained in Article IX is good ground for holding that the prosecution of the defendants is an abuse of process of the Court. 73. It is not difffĳicult to agree with the submissions made by the amici curiae, Professor Orentlicher and Redress that, given the existence of a treaty obligation to prosecute or extradite an offfender, the grant of amnesty in respect of such crimes as are specifĳied in Articles 2 to 4 of the Statute of the Court is not only incompatible with, but is in breach of an obligation of a State towards the international community as a whole.61 Nothing in the submissions made by the Defence and the interveners detracts from that conclusion. The case of Azapo v. President of the Republic of South Africa62 is purely one dealt with under the domestic laws of South Africa. It was not a case in which the jurisdiction of another State or of an international court to prosecute the offfenders is denied. The decisive issues which have arisen in the case before us did not arise in that case. 74. It may well be noted that the President of Sierra Leone did acknowledge that “there are gaps in Sierra Leonean law as it does not encompass such heinous crimes as those against humanity and some of the gross human rights abuses committed”63 and also that the intention of the amnesty granted was to put prosecution of such offfences outside the jurisdiction of national courts.

VI. Abuse of Process

75. The question of abuse of process arose because it was submitted on behalf of Kallon that it would be an abuse of process of the Special Court to permit the prosecution of Kallon for alleged crimes pre-dating the Lomé Agreement. This was an alternative position taken by the defendants should the Court hold that the amnesty granted by the Lomé Agreement did not bar prosecution of the defendants and the interveners. It was argued that notwithstanding the fact that there may be jurisdiction to prosecute the defendants and the interveners, the Court

61 Indeed in 1999, the UN Commission on Human Rights made what can be regarded as a statement of universal jurisdiction in the following terms: “[I]n any armed conflict, including an armed conflict not of an international character, the taking of hostages, wilful killing and torture or inhuman treatment of persons taking no active part in hostilities constitutes a grave breach of international humanitarian law, and that all countries are under obligation to search for persons alleged to have committed or to have ordered to be committed, such grave breaches and bring such persons regardless of their nationality, before their own courts.” See Situation of Human Rights in Sierra Leone, U.N. Commission on Human Rights, 54th Session, U.N. Doc. E/CN. 4/RES/1999/1 (1999). See also Babafemi Akinrinade, ‘International Humanitarian Law and the Conflict in Sierra Leone,’ 15 Notre Dame Journal of Law, Ethics and Public Policy, 391-454 (Fall 2001) at pp. 442-443. 62 Azapo v. President of the Republic of South Africa (4) SA 653 (1996). 63 See Letter dated 9 August 2000, (note 16 above). 952 part iii should exercise discretion to stay proceedings on the ground that the prosecution itself was in abuse of process of the court. 76. The discretion to stay proceedings brought in abuse of the process of the Court in appropriate cases is undoubted. It is a jurisdiction that derives from what was described in the Tadic Jurisdiction Decision as “the ‘incidental’ or ‘inherent’ jurisdiction which derives automatically from the exercise of the judicial function.”64 The question in this case is not whether the Court has such discretionary power but whether it is exercisable in this case. 77. Counsel on behalf of Kallon argues that it is, and he puts his argument in this manner: It is settled law that any Court has an inherent power to stay criminal proceedings. In Barayagwiza the Appeals Chamber of the International Criminal Tribunal for Rwanda (ICTR) expressly acknowledged that “the abuse of process doctrine may be relied upon in two distinct situations: (1) where delay has made a fair trial of the accused impossible; and (2) where in the circumstances of a particular case, proceeding with the trial of the accused would contravene the court’s sense of justice, due to pre-trial impropriety or misconduct.”65 In deciding to stay the proceedings against Barayagwiza, who was charged with inter alia genocide and crimes against humanity, the Appeals Chamber held: The Tribunal – an institution whose primary purpose is to ensure that justice is done – must not place its imprimatur on such violations. To allow the Appellant to be tried on the charges for which he was belatedly indicted would be a travesty of justice. Nothing less than the integrity of the Tribunal is at stake in this case. Loss of public confĳidence in the Tribunal, as a court valuing human rights of all individuals – including those charged with unthinkable crimes – would be among the most serious of consequences of allowing the Appellant to stand trial in the face of such violations of his rights.66 Thus, according to the Defence, the abuse of process doctrine is applicable to international crimes and is applied to serious crimes in domestic courts. The Defence argues that domestic courts have jurisdiction to try crimes akin to those alleged in this case and if an abuse of process occurred during domestic proceedings for such crimes it would be unthinkable for a court to apply diffferent principles to the case simply on account of the seriousness of the allegations. According to the Defence, the abuse of process doctrine clearly applies to so called ‘international crimes’ for which there is a duty to ‘extradite or prosecute’ in domestic courts.

64 Tadić Jurisdiction Decision, para. 18. 65 Jean-Bosco Barayagwiza v. The Prosecutor, Case No. ICTR-97-19-AR72, Decision, 3 November 1999, para. 77. 66 Ibid., para. 112. interlocutory decisions – appeals chamber 953

78. The Prosecution’s response is that prosecution by the Court would not be an abuse of the process of the Court because it could not be an abuse of process to comply with the express provisions of Article 10 of the Statute, particularly, in the circumstances that “(a) Article IX is of no efffect in international law; (b) has been repealed as a matter of national law to the extent that it could apply to crimes under Articles 2–4 of the Special Court’s Statute and (c) on its correct interpretation does not even apply to crimes under Articles 2–4 of the Special Court’s Statute.”67 79. At the root of the doctrine of abuse of process is fairness. The fairness that is involved is not fairness in the process of adjudication itself but fairness in the use of the machinery of justice. The consideration is not only about unfairness to the party complaining but also whether to permit such use of the machinery of justice will bring the administration of justice into disrepute. In A. G. of Trinidad and Tobago v. Phillip68 the Privy Council said, rightly: The common law has now developed a formidable safeguard to protect persons from being prosecuted in circumstances where it would be seriously unjust to do so. It could well be an abuse of process to seek to prosecute those who have relied on an offfer of promise of a pardon and complied with the conditions subject to which that offfer or promise was made. If there were not circumstances justifying the state in not fulfĳilling the terms of its offfer or promise, then the courts could well intervene to prevent injustices: see Reg. v. Mines and Green [1983] 33 S.A.S.R. 211. 80. Where there is an express provision of a statute that a tribunal shall not take into consideration a fact or an event as ground for declining to exercise its jurisdiction (other than a fact or event that afffects the fairness of the trial itself as to constitute a violation of the right to fair hearing), such tribunal will be acting unlawfully if it circumvents the express provision of the statute under the guise of an inherent discretionary power. Article 10 of the Statute which provides that amnesty granted to any person falling within the jurisdiction of the Special Court in respect of the crimes referred to in Articles 2 to 4 of the present Statute shall not be a bar to prosecution is an express limitation on an exercise of the discretion of the Court to bar proceedings solely on the strength of such amnesty. 81. It must be stated, though no one has so suggested, that there was no bad faith in the inclusion of Article 10 in the Statute. There was the clear statement in the preamble to Resolution 1315 (2000) of the Security Council that “[t]he Special representative of the Secretary-General appended to his signature of the Lomé Agreement a statement that the United Nations holds the understanding that the amnesty provisions of the Agreement shall not apply to international crimes of

67 Prosecution Response to the Kallon Preliminary Motion, para. 15, emphasis in the original. 68 G. of Trinidad and Tobago v. Phillip, 1 A.C.396 at 417 (1995). 954 part iii genocide, crimes against humanity, war crimes and other serious violations of international humanitarian law.” There was also the statement earlier referred to by the President of Sierra Leone that the amnesty was intended to be efffective only in regard to the national courts. 82. The submission by the Prosecution that there is a “crystallising international norm that a government cannot grant amnesty for serious violations of crimes under international law” is amply supported by materials placed before this Court. The opinion of both amici curiae that it has crystallised may not be entirely correct, but that is no reason why this court in forming its own opinion should ignore the strength of their argument and the weight of materials they place before the Court. It is accepted that such a norm is developing under international law. Counsel for Kallon submitted that there is, as yet, no universal acceptance that amnesties are unlawful under international law, but, as amply pointed out by Professor Orentlicher, there are several treaties requiring prosecution for such crimes. These include the 1948 Convention on the Prevention and Punishment of the Crime of Genocide,69 the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,70 and the four Geneva conventions.71 There are also quite a number of resolutions of the UN General Assembly and the Security Council reafffĳirming a state obligation to prosecute or bring to justice. Redress has appended to its written submissions materials which include relevant conclusions of the Committee against torture, fĳindings of the Human Rights Commission, and relevant judgments of the Inter-American Court. 83. Professor Orentlicher cautiously concluded that “to the extent that the amnesty encompasses crimes against humanity, serious war crimes, torture and other gross violations of human rights its validity is highly doubtful.”72 She was, however, emphatic in her opinion that the amnesty contravenes the United Nation’s commitment to combating impunity for atrocious international crimes. 84. Even if the opinion is held that Sierra Leone may not have breached customary law in granting an amnesty, this court is entitled in the exercise of its discretionary power, to attribute little or no weight to the grant of such amnesty which

69 Convention on the Prevention and Punishment of the Crime of Genocide, adopted by UN General Assembly on 9 December 1948, 78 UNTS 277. 70 Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, 4 February 1985, (1984) ILM 1027. 71 Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field; Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea; Convention Relative to the Treatment of Prisoners of War; Convention Relative to the Protection of Civilians in Time of War. Geneva, 12 August 1949. 72 Orentlicher Amicus Brief, p. 24. interlocutory decisions – appeals chamber 955 is contrary to the direction in which customary international law is developing and which is contrary to the obligations in certain treaties and conventions the purpose of which is to protect humanity. 85. Upon its establishment the Special Court assumed an independent existence and is not an agency of either of the parties which executed the Agreement establishing the Court. It is described as ‘hybrid’ or of ‘mixed jurisdiction’ because of the nature of the laws it is empowered to apply. Its description as hybrid should not be understood as denoting that it is part of two or more legal systems. Prosecutions are not made in the name of Sierra Leone which plays no part in initiating or terminating prosecution and has no control whatsoever over the Prosecutor who exercises an independent judgement in his prosecutorial decision. The understanding of the United Nations in signing the Lomé Agreement is that the amnesty granted therein will not extend to such crimes covered by Articles 2 to 4 of the Statute of the Court. The understanding of Sierra Leone from the statement made on the inauguration of the Truth Commission was that the amnesty afffected only prosecutions before national courts. All these are consistent with the provisions of Article 10 of the Statute and the universal jurisdiction of other states by virtue of the nature of the crime to prosecute the offfenders. All these are factors which make the prayer that proceedings be stayed by reason of abuse of process untenable.

VII. Summary of Conclusions

86. The Lomé Agreement is not a treaty or an agreement in the nature of a treaty. The rights and obligations it created are to be regulated by the domestic laws of Sierra Leone. In the result, whether it is binding on the Government of Sierra Leone or not does not afffect the liability of the accused to be prosecuted in an international tribunal for international crimes such as those contained in Articles 2 to 4 of the Statute of the Court. 87. The validity of Article 10 of the Statute has not been successfully impugned. That Article is an express statutory limitation on the discretion of the Court to decline jurisdiction on the sole ground that an amnesty has been granted to a defendant. 88. Whatever efffect the amnesty granted in the Lomé Agreement may have on a prosecution for such crimes as are contained in Articles 2 to 4 in the national courts of Sierra Leone, it is inefffective in removing the universal jurisdiction to prosecute persons accused of such crimes that other states have by reason of the nature of the crimes. It is also inefffective in depriving an international court such as the Special Court of jurisdiction. 956 part iii

89. The interpretative declaration appended by the Secretary-General’s representative at the signing of the Lomé Agreement is in accordance with international law and is sufffĳicient indication of the limits of the amnesty granted by the Agreement. 90. The prosecution of the accused by an independent autonomous court, initiated by an independent prosecutor and not brought in the name of Sierra Leone, is not tainted by whatever undertaking any accused claiming the benefĳit of the amnesty may have believed he had from the Government of Sierra Leone. Such undertaking could not afffect the independent judgment of the Prosecutor who is not responsible to the Sierra Leonean Government.

VIII. Disposition

91. On the whole the Preliminary Motion lacks merit and is dismissed. Done at Freetown this 13th Day of March 2004. IN THE APPEALS CHAMBER

Before: Justice Renate Winter, Presiding Justice George Gelaga King Justice Emmanuel Ayoola Justice Geofffrey Robertson Justice Raja Fernando Registrar: Robin Vincent Date: 25 May 2004 PROSECUTOR Against Santigie Borbor Kanu (Case No.SCSL-2004-16-AR72(E))

DECISION ON MOTION CHALLENGING JURISDICTION AND RAISING OBJECTIONS BASED ON ABUSE OF PROCESS

Office of the Prosecutor: Defence Counsel: Desmond de Silva QC Geert-Jan Alexander Knoops Luc Côté Joseph Cole Walter Marcus-Jones Abdul Tejan-Cole 958 part iii

THE APPEALS CHAMBER of the Special Court for Sierra Leone (“Special Court” or “Court”); SEIZED of the Motion Challenging the Jurisdiction of the Special Court, Raising Serious Issues Relating to Jurisdiction on Various Grounds and Objections Based on Abuse of Process fĳiled on behalf of Santigie Borbor Kanu on 20 October 2003 (“Preliminary Motion”); NOTING that the Prosecution Response was fĳiled on 30 October 2003 and that the Defence Reply was fĳiled on 5 November 2003; NOTING that the Preliminary Motion was referred to the Appeals Chamber under Rule 72(E) of the Rules of Procedure and Evidence (“Rules”) on 22 January 2004; NOTING that Additional Submissions pursuant to Rule 72(G) were fĳiled by the Defence on 29 January 2004 in accordance with an Order on Expedited Filing of Additional Submissions dated 27 January 2004, and that the Prosecution did not fĳile a Response; NOTING the Decision of the Appeals Chamber (composed of Justice Winter, Justice King and Justice Ayoola) on Constitutionality and Lack of Jurisdiction of 13 March 2004 in the Kallon, Norman and Kamara cases (“Decision on Constitutionality”); NOTING the Decision of the Appeals Chamber (composed of Justice Winter, Justice King and Justice Ayoola) on Decision on Challenge to Jurisdiction: Lome Accord Amnesty of 13 March 2004 in the Kallon and Kamara cases (“Lome Amnesty Decision”); HAVING CONSIDERED THE SUBMISSIONS OF THE PARTIES; HEREBY DECIDES: 1. Although this Preliminary Motion was fĳiled on 20 October 2003, it was not referred to this Chamber until 22 January 2003. The Decisions on Constitutionality and the Lomé Amnesty, which were rendered on 13 March 2004, have efffectively disposed of much of the arguments made by this Applicant in relation to the unlawfulness of the Court’s establishment and the continuing validity of the amnesty provided in Article IX of the Peace Agreement between the Government of Sierra Leone and the Revolutionary United Front of Sierra Leone of 7 July 1999 (“Lomé Accord”). No more need be said about those aspects of the Applicant’s submissions. The rest of the submission can be disposed of shortly. 2. The Applicant labours under some misconception when he argues that the Agreement between the United Nations and the Sierra Leone Government had no interlocutory decisions – appeals chamber 959

‘direct efffect within the domestic legal system of Sierra Leone’1 and, therefore, the Special Court has no jurisdiction to try him. The Special Court is vested with its own specifĳic jurisdiction and competence by the constitutive documents establishing it. As a treaty based institution it operates outside the legal system of Sierra Leone and does not derive its jurisdiction from or within that system.

3. It was argued that ‘the entering of a bilateral agreement which established the Special court, may be […] unconstitutional as it infringes the mentioned sovereign rights of the people of Sierra Leone.’2 The said ‘mentioned sovereign rights’ were said to derive from the constitutional declaration that ‘sovereignty belongs to the people of Sierra Leone from whom Government derives all its power, authority and legislative legitimacy.’3 This, clearly, is a declaration of the basic norm of the Sierra Leone constitutional and legal order. Rather than having the consequence which the Applicant sought to attribute to it, it has the efffect of enabling the Government validly to exercise those powers vested in it by the Constitution, of which the treating making power is one. 4. The further and fresh point was made by the Applicant that as a member of the Sierra Leone Army he is entitled to be tried by fellow offfĳicers in a court-martial for any crime alleged to have been committed during his military service. This right is said to derive from Articles 169(3)(e) and 171(13) of the Constitution. As this Chamber had stated in the Decision on Constitutionality, the provisions of the national Constitution do not afffect the jurisdiction of the Special Court. It is perhaps worth emphasizing that military personnel of any state may be subject to a system of internal discipline which may replace or oust the jurisdiction of national criminal courts in respect of serious crime. But the existence of such a domestic system of internal discipline cannot have the efffect of ousting the jurisdiction of an international court which operates outside the national judicial system. 5. The arguments raised relating to constitutional validity of the provisions of the Agreement establishing the Special Court as regards transfer of a Sierra Leonean national to the custody of the Special Court does not raise a question relating to jurisdiction and can rightly be ignored. 6. Finally, the Applicant argued that ‘the Special Court cannot assume jurisdiction for crimes which allegedly should have been committed prior to assuming command or allegedly taking the position of a superior.’4 It is evident that this line

1 Preliminary Motion, para. 8. 2 Preliminary Motion, para. 10. 3 Article 5(2)(a) of Chapter XII of the Constitution of Sierra Leone, 1991. 4 Preliminary Motion, para. 29. 960 part iii of argument does not raise a jurisdictional issue or, for that matter, one that can be treated as a threshold issue. Rather, the submission relates to matters that may be appropriate as issues of defence. 7. It is evident that the Preliminary Motion is without merit. It is, accordingly, dismissed. Done at Freetown this twenty-fĳifth day of May 2004. IN THE APPEALS CHAMBER

Before: Justice Emmanuel Ayoola, Presiding Judge Justice George Gelaga King Justice Geofffrey Robertson Registrar: Robin Vincent Date: 23 June 2005 PROSECUTOR Against Alex Tamba Brima Brima Bazzy Kamara Santigie Kanu (Case No.SCSL-04-16-AR77)

DECISION ON DEFENCE APPEAL MOTION PURSUANT TO RULE 77(J) ON BOTH THE IMPOSITION OF INTERIM MEASURES AND AN ORDER PURSUANT TO RULE 77(C)(iii)

Office of the Prosecutor: Defence Counsel for Alex Tamba Brima: Luc Côté Kevin Metzger Lesley Taylor Glenna Thompson Boi-Tia Stevens Kojo Graham Defence Counsel for Brima Bazzy Kamara: Wilbert Harris Mohamed Pa-Momo Fofanah Defence Counsel for Santigie Borbor Kanu: Geert-Jan Alexander Knoops Carry J. Knoops Abibola E. Manley-Spaine 962 part iii

Introduction 1. This is the fĳirst occasion upon which the Special Court has been required to consider contempt proceedings, in this case in respect of allegations by the prosecutor that a protected witness has been identifĳied by a member of a defence team and has in consequence been intimidated by four women related to other defendants in the trial. The Trial Chamber dealt with the allegation by appointing an independent Counsel to investigate and report on whether there were grounds for contempt proceedings. Additionally, it made interim orders which had the efffect of removing an investigator from the defence team and excluding the four women – two of them wives of defendents – from the public gallery. This challenge to both decisions is brought, not by the persons under investigation for contempt, but by the three defendants in the trial: Brima (on whose team the investigator was working), Kamara and Kanu (whose wives were excluded from the Court). The prosecution objects that they have no standing to bring an appeal. More fundamentally, since the interlocutory appeal has been brought without leave either of the Trial Chamber or of this court, the prosecution maintains that the Appeals Chamber has no jurisdiction to hear it. 2. All courts must possess the powers necessary to enable them to administer and deliver justice fairly and efffĳiciently. These powers are not vouchsafed to bol- ster the self-regard of judges, offfĳicials or counsel, who must in the discharge of their duties put up with criticisms, however wrong-headed, of their actions. The power to investigate and punish what is generically (and somewhat misleading) described as “contempt of court” can only be used against those whose actions are calculated to obstruct the court’s task of getting at the truth – in the terms laid down by Rule 77A, “any person who knowingly and wilfully interferes with its administration of justice.” That sub-rule gives six, non-exhaustive, ways in which contempt of court may be committed, e.g. by disclosing information relating to proceedings in knowing violation of an order (ii) and by threatening or intimidating a witness (iv). It should be obvious that witnesses must never be put under any pressure in their choice to give evidence for one party or another or as to what evidence they should give, and must be rigorously protected thereafter from any reprisals. Where the court, because there is a real danger of such reprisals, has taken the exceptional step of ordering that the name and any identifying details of a witness should not be disclosed to the public, a credible allegation of breach of that order by a person subject to it must be investigated without delay. 3. It goes without saying that a war crimes court, sitting in a country which for ten years was riven by a war which afffected all its people, must be astute to protect its witnesses, especially victims of that war who come forward to give evidence against defendants alleged to have occupied command positions in factions that may still have support. The Court must use its powers to safeguard them from any risk of reprisal. At the same time, it must uphold the rights of defendants to a fair interlocutory decisions – appeals chamber 963 trial – not any arguable ‘rights,’ but those basic rights that are enshrined in Article 17 of the Court’s Statute. This exercise is mandated by Rule 75 whenever the Court orders that a particular witness be “protected” from having his or her name disclosed to members of the public. Rule 75(A) provides: A Judge or a Chamber may, on its own motion, or at the request of either party, or of the victim or witness concerned, or of the Witnesses and Victims Section, order appropriate measures to safeguard the privacy and security of victims and witnesses, provided that the measures are consistent with the rights of the accused. (my emphasis) This principle – and it is not a balancing act, but rather an injunction to ensure that witness protection measures do not breach those fair trial rights in Article 17 – must be kept in mind in all decisions relating to protected witnesses.

The Facts 4. Since the AFRC Trial is ongoing, discussion of the facts is necessarily constrained. The Appeals Chamber has, however, studied the transcript of the in camera proceedings in the course of which the impugned decisions were taken, and has been shown the documents and witness statements supplied to the court by the prosecution in order to provide it (in the words of Rule 77(C)), “with reason to believe that a person may be in contempt of the Special Court.” 5. Protected witness TF1-023 began her testimony on 9 March 2005, screened offf from the public gallery but visible to Judges and counsel and their in-court teams, some of whom knew her real name. An incident occurred as she was being driven out of the court at the end of the day, her evidence part-heard. According to a report submitted immediately to the Registrar by the Chief of the Witness and Victims protection section, the car in which the witness was travelling was still within the court precincts when four women, whose identities were said to be well known to the security stafff at the gates, assailed its occupants by shouting out the fĳirst name of the witness, followed by threats. These were (the report went on) clearly heard by the driver and two protection offfĳicers in the car, and by the witness, who was “visibly perturbed and frightened.” 6. The prosecution decided to raise this matter the next day, at the close of the witness’s testimony. However, as soon as TF1-023 stepped into the box the following morning, she asked to make a statement. “Yesterday here, after here, I was threatened, I had remarks against me… I was in the vehicle and they shouted my name.”1 The Chamber was understandably concerned. It moved into closed session, in which Ms. Taylor (for the prosecution) supplied it with the report to the

1 Transcript, p. 3-4. 964 part iii

Registrar and urged that there was a prima facie case of contempt against the four named women. Obviously, in terms of the Rule 77 test, there was “reason to believe” that a person may be in contempt of court, given the sworn testimony of TF1-023 (albeit not cross-examined) and the report from the Chief of the Witness Unit – hearsay, certainly, but on its face describing credibly a real incident that had put the witness in fear. The pre-condition for the Chamber to institute one of the three alternative contempt procedures as set out in Rule 77(C) had been satis- fĳied in respect of the four women. 7. The prosecution went further. It submitted written statements from two court security offfĳicers, who claimed to have overheard conversations in the Court precincts on 9 March between Brima Samura, an investigator on the team representing the accused Tamba Brima, and the same women, from which conversations – if honestly and accurately reported – it might be inferred that Samura had supplied the information which identifĳied the protected witnesses. The prosecution sought Samura’s committal for contempt. It also sought an “interim order” suspending him from his position as investigator in the Brima Defence team, requiring him to hand back all documents which identifĳied witnesses and to give a solemn undertaking to the court that he would not until further order discuss witness identity. In addition it sought a further interim order to have the four women barred from the public gallery.

The Rule 77 Procedure 8. I have every sympathy with trial Judges faced unexpectedly with such an apparently serious turn of events and without precedent in this Court to guide them. What they did have was Rule 77, which sets out the law and procedure for dealing with contempt of the Special Court. Rule 77(C) provides: (C) When a Judge or Trial Chamber has reason to believe that a person may be in contempt of the Special Court, it may: i. deal with the matter summarily itself; ii. refer the matter to the appropriate authorities of Sierra Leone; or iii. direct the Registrar to appoint an experienced independent counsel to investigate the matter and report back to the Chamber as to whether there are sufffĳicient grounds for instigating contempt proceedings. If the Chamber considers that there are sufffĳicient grounds to proceed against a person for contempt, the Chamber may issue an order in lieu of an indictment and direct the independent counsel to prosecute the matter. 9. It is clear from the terms of Rule 77(C) that the situation required the court to take three decisions. In the fĳirst place, it had to decide whether, on the material placed before it, there was reason to believe that a contempt may have been committed. If so, it had to decide whether: i) to proceed to summary trial, or ii) to refer the matter to the authorities of Sierra Leone or iii) to direct the Registrar to appoint interlocutory decisions – appeals chamber 965 independent counsel to investigate and report back to the Chamber as to whether there were sufffĳicient grounds to proceed for contempt. Thirdly, it had to decide, under its inherent jurisdiction or pursuant to its Rule 54 power to make orders or its Rule 75 power to protect witnesses, whether any or all of the interim measures urged by the prosecutor should be put in place. 10. In each of these three issues the defence had an interest and Ms. Taylor had, very properly, ensured that the Principal Defender was supplied with all documents before they were showed to the court.2 The allegation against the investigator cast a shadow over the Brima team that had employed him and thereby implicitly vouched for his obedience to the orders of the Court. Any proceedings against its only investigator would be likely to disrupt the preparations for Brima’s Defence. The other defendants would be personally afffected if their wives, who had regularly attended in the public gallery and visited them in prison, were now to be investigated for a serious offfence, or else summarily prosecuted. 11. It follows that the Defence counsel were entitled, if they chose, to present argument that the material submitted by the prosecution did not give any cause for reasonable belief that a contempt might have been committed. Obviously the court could not allow itself at this stage to be drawn into a summary trial, or a trial before a trial. But if the Defence could provide evidence that entirely refuted the allegation – e.g. if it could prove that the investigator was in another country at the material time, or that there had been an obvious misunderstanding or mis- identifĳication, then it should be permitted to produce it. It is much better that a demonstrably mistaken allegation should be exposed at once, before unnecessary contempt proceedings or investigations are commenced. That was not this case, however, as will appear. 12. If the Chamber decides that there may have been a contempt, then it must next decide whether to try the matter summarily (with a maximum sentence of six months) or to pass it to the Sierra Leone authorities or to direct the Registrar to appoint an independent Counsel to investigate: a procedure for serious cases which could result eventually in a seven years jail sentence. This is essentially a question for the Trial Chamber, but it might be assisted by submissions from counsel. 13. On the third decision – the interim orders – the right of the defence to be heard is self evident. The court must be told the extent to which the proposed order will impact on the course of the trial or hinder defence preparation or cause distress to a defendant, and it must hear argument as to whether any draconian order sought by the prosecution is really proportionate to deal with the apprehended risk.

2 Ibid., p. 6. 966 part iii

The Court’s Response 14. It would appear from the transcript that these distinctions were not clearly drawn. After the prosecution’s submission, the court conferred and the Presiding Judge indicated that they would deliver a ruling. Mr. Metzger, appearing for Brima, jumped to his feet and pointed out, very politely, that he had not been heard on behalf of his client or his team member, the investigator Mr. Samura, and that the other counsel had not been heard on behalf of the wives of their clients. “In a court of law, in my humble but limited experience, it is always the case that the defence is called upon.”3 The Presiding Judge was properly conscious of the danger of embarking on a mini-trial then and there, and so explained “I think it is premature to invite the defence to lay out their case.” But Mr. Metzger persisted and persuaded the court to hear him, at least in respect of Mr. Samura, and in due course the court heard counsel for the other defendants. Their submissions went on for some time, and ranged over the three questions at issue – whether the nature and quality of the prosecution information gave “reason to believe”; whether a special cousel should be appointed, and whether the interim measures should be imposed. The points the three Defence teams wished to be made were made, albeit without an adjournment and in scatter-gun fashion and to a court that had come to a provisional view before it allowed them to be heard. In the event, there was no breach of the “audi alterem partem” (hear the other side) rule, because the other side was heard, and at some length. Indeed, it was heard on various issues relating to the alleged contempt throughout the day. Professor Knoops, for Kanu and Mr. Harris, for Kamara, were able to explain their clients’ concern that their wives, on whom they relied for emotional support, would be excluded from the public gallery. Mr. Metzger explained that there was a background to the allegations against Mr. Samura, which were made against him by or on behalf of persons against whom he already had cause for complaint. 15. After hearing all defence counsel, the Chamber delivered an ex tempore ruling. It decided 1) that there were reasonable grounds to believe that persons may have committed a contempt; 2) in consequence, to activate Rule 77(C)(iii), which provides (although the court did not put it in those precise terms) that it may “direct the Registrar to appoint an experienced independent counsel to investigate the matter and report back to the Chambers as to whether there are sufffĳicient grounds for instigating contempt proceedings.” Its third decision was to impose the very interim measures that had been sought by the prosecution. It further indicated that the other trial chamber, or a judge thereof, might be the appropriate forum for any contempt hearing, in view of Mr. Metzger’s suggestion that defence counsel in the AFRC trial might be required as witnesses.

3 Ibid., p. 8. interlocutory decisions – appeals chamber 967

Discussion 16. The appellants criticise the Trial Chamber’s decision on the fĳirst issue. But the evidential hurdle is low, and was satisfĳied by the testimony on oath of Witness TF1-023, the report from the head of the Witness Protection Unit and the witness statements from the two guards. True it is that these two statements included hearsay, were not on oath and cried out for cross-examination, but at this initiating stage the court is not concerned with their veracity – that will be tested by a trial, if the essential material submitted by the Prosecution gives ‘reason to believe’ that contempt ‘may’ have been committed. 17. However, the Presiding Judge, in announcing the Court’s ruling, said that the material “constitutes prima facie grounds for bringing persons named before the court to show cause why they are not in breach of Rule 77(I)(iv).” This language may be confusing, because the procedure in no way reverses the burden of proof for contempt, which remains, as with any other crime, squarely on the prosecution. Moreover, the standard is not that of a prima facie case, which is the standard for committal for trial. It is the diffferent and lower standard of “reason to believe” that an offfence may have been committed, which is the pre-condition for ordering an independent investigation. In reality, the President was giving an offf-the-cufff ruling after a difffĳicult and sometimes heated session: her language may not have been technically correct, but adequately communicated the decision that the material put before the court, on the face of it, gave reason to believe that contempt offfences had been committed. 18. The decision to proceed by way of 77(C)(iii), i.e. by appointing an independent counsel, rather than by way of summary trial, was essentially a matter for the Trial Chamber. Summary Trial is preferable if the parties are before the Court and the matter is not overly serious and can be determined speedily and with minimum disruption. It may be inappropriate if the alleged contempt is very serious or will require counsel to give evidence. It will be inappropriate if the Judges of the Chamber feel personally involved: any cases of contempt by the media should for that reason be dealt with by another Chamber. It has been suggested by defence counsel that the Rule 77(C)(iii) route was disproportionate: the matter could instead have been dealt with by a caution.4 This was a surprising suggestion since a caution is only possible in relation to a defendant who admits committing the offfence, and apologises for his conduct and seeks to extenuate it. Nothing of this sort was offfered on 10 May. The option of reference to the Sierra Leone authorities was inappropriate and in any event should only be exceptionally deployed, in cases where the Special Court’s powers are insufffĳicient.

4 Defence Submission fĳiled 11 March 2005, para. 30. 968 part iii

19. At another point in her oral ruling the Trial Chamber President used inadvertent language: she directed the appointment of an independent counsel “to investigate and prosecute…” There should be no misunderstanding here: Sub-Rule (C) (iii) does not permit the Court to direct an independent counsel to prosecute at this initiating stage. An independent counsel is appointed in circumstances where it is inappropriate for the Special Court’s own prosecutor to act: he serves as an independent offfĳicer, reaching his own independent decision as to whether there are sufffĳicient grounds for a prosecution. Only if he comes to that conclusion in his report to the Chamber, and if the Chamber agrees with that conclusion, may it direct him to commence a prosecution. 20. So far as the interim orders were concerned, the position is diffferent. It was arguable that they were disproportionate. The female relatives of the accused were excluded from the public gallery at all times, although the order might have been limited to an exclusion only when protected witnesses were testifying. Before removing the defence investigator entirely from the trial, the Chamber should have considered whether a less draconian measure would sufffĳice, such as a solemn undertaking to protect witness anonymity and an order that, until such time as he was cleared of suspicion, he work only on aspects of the case which did not involve protected prosecution witnesses. The Court, in its understandable concern to deter interference with witnesses, must ensure that its measures do not undermine the defendant’s basic right to have adequate facilities to prepare his defence. 21. However, it is not for Appeal judges to determine at this juncture whether the interim measures might have been tuned more fĳinely: it was open to the defence thereafter to seek a variation after the ruling and indeed they did so – for much of that day, persuading the court to order, for example, that another investigator should be accredited immediately to Mr. Metzger’s team.5 After hearing further defence argument, the court decided to adjourn for a week so that the position could be reconsidered. At the end of the day’s proceedings, the Chamber halted the trial at the Defendant’s request, to ensure that they would sufffer no prejudice while the position of the Brima team investigator was clarifĳied.6 22. The defence tentatively raised the issue of leave to appeal: one judge questioned whether it was necessary but the President pointed out that at this stage there was no contempt decision to appeal against.7 The matter does not appear to have been pursued. The defendants apply to this court without leave, and argue (as they must) that they do not need leave to appeal.

5 Ibid., p. 20. 6 Ibid., p. 55. 7 Ibid., pp. 21-22. interlocutory decisions – appeals chamber 969

Jurisdiction to Hear This Appeal

a) The Rule 77 Decisions 23. I have set out the facts together with some comments on the procedure which led up to the impugned ruling. But the threshold question is whether we have power to entertain this appeal at all, which is brought by the defendants and not by the alleged contemnors, and is brought without leave of this court or of the Court below, and which relates to an interlocutory action rather than a fĳinal decision. 24. In the full Appeals Chamber Ruling on Amendment and Consolidation of Indictment we explained that the Rules of this court must be construed in their context and according to the purpose they serve in the Special Court. This court comprises two full-time Trial Chambers, with an Appeals Chamber the Judges of which are part-time until the conclusion of a trial – a stage that has not yet been reached.8 The Appeals Chamber’s jurisdiction in the meantime is confĳined to issues which relate to the jurisdiction of the Court (see Rule 72) or else to interlocutory appeals by leave of the Trial Chamber, and such leave can only be given “in exceptional circumstances and to avoid irreparable prejudice to a party.” (Rule 73B) That sub-rule appears in the chapter headed Part VI – PROCEEDINGS BEFORE TRIAL CHAMBERS. It appears under the headnote Section 1 – General Provisions. In that part of the Rules, under that very section, appears Rule 77: Contempt of the Special Court. It follows that unless Rule 77 expressly (and anoma- lously) provides for an appeal without leave, direct to the Appeals Chamber, it must be read subject to the Rule 73B requirement for leave. Moreover, if Rule 77, properly construed, excludes by necessary implication any interlocutory appeal, then Rule 73B can have no application. ‘Interim measures’ which are imposed not by reference to Rule 77 but under the courts inherent power, or under Rule 54 or Rule 75, obviously cannot be appealed without leave. 25. Rule 77 sets out, in careful chronological order, the principles and steps involved in the contempt process. It provides:

Rule 77: Contempt of the Special Court (amended 29 May 2004) (A) The Special Court, in the exercise of its inherent power, may punish for contempt any person who knowingly and willfully interferes with its administration of justice, including any person who: i. being a witness before a Chamber, subject to Rule 90(E) refuses or fails to answer a question;

8 Set out relevant part of Court Statute/agreement. 970 part iii

ii. discloses information relating to proceedings in knowing violation of an order of a Chamber; iii. without just excuse fails to comply with an order to attend before or produce documents before a Chamber; iv. threatens, intimidates, causes any injury or offfers a bribe to, or otherwise interferes with, a witness who is giving, has given, or is about to give evidence in proceedings before a Chamber, or a potential witness; v. threatens, intimidates, offfers a bribe to, or otherwise seeks to coerce any other person, with the intention of preventing that other person from complying with an obligation under an order of a Judge or Chamber; or vi. knowingly assists an accused person to evade the jurisdiction of the Special Court. (B) Any incitement or attempt to commit any of the acts punishable under Sub-Rule (A) is punishable as contempt of the Special Court with the same penalties. (C) When a Judge or Trial Chamber has reason to believe that a person may be in contempt of the Special Court, it may: i. deal with the matter summarily itself; ii. refer the matter to the appropriate authorities of Sierra Leone; or iii. direct the Registrar to appoint an experienced independent counsel to investigate the matter and report back to the Chamber as to whether there are sufffĳicient grounds for instigating contempt proceedings. If the Chamber considers that there are sufffĳicient grounds to proceed against a person for contempt, the Chamber may issue an order in lieu of an indictment and direct the independent counsel to prosecute the matter. (D) Proceedings under Sub-Rule (C)(iii) above may be assigned to be heard by a single judge of the Trial Chamber or a Trial Chamber. (E) The rules of procedure and evidence in Parts IV to VIII shall apply, as appropriate, to proceedings under this Rule. (F) Any person indicted for or charged with contempt shall, if that person satisfĳies the criteria for determination of indigence established by the Registrar, be entitled to legal assistance in accordance with Rule 45. (G) The maximum penalty that may be imposed on a person found to be in contempt of the Special Court pursuant to Sub-Rule (C)(i) shall be a term of imprisonment not exceeding six months, or a fĳine not exceeding 2 million Leones, or both; and the maximum penalty pursuant to Sub-Rule (C)(iii) shall be a term of imprisonment for seven years or a fĳine not exceeding 2 million leones, or both. (H) Payment of a fĳine shall be made to the Registrar to be held in a separate account. (I) If a counsel is found guilty of contempt of the Special Court pursuant to this Rule, the Chamber making such fĳinding may also determine that counsel is no longer eligible to appear before the Special Court or that such conduct amounts to misconduct of counsel pursuant to Rule 46, or both. (J) Any decision rendered by a Single Judge or Trial Chamber under this Rule shall be subject to appeal. interlocutory decisions – appeals chamber 971

(K) Appeals pursuant to this Rule shall be heard by a bench of at least three Judges of the Appeals Chamber. In accordance with Rule 117 such appeals may be determined entirely on the basis of written submissions. (L) In the event of contempt occurring during proceedings before the Appeals Chamber or a Judge of the Appeals Chamber, the matter may be dealt with summarily from which there shall be no right of appeal or referred to a Trial Chamber for proceedings in accordance with Sub-Rules (C) to (I) above. 26. Rule 77(A) defĳines the crime – knowing and unlawful interference with the administration of justice – which the court has inherent power to punish, and identifĳies fĳive ways in which it may be committed (e.g. by disclosing information in violation of an order and intimidating a witness). Sub-rule B extends the power to enable punishment of incitement or attempt. Sub-rule C sets out the test (‘reason to believe’) which entitles the court to proceed and chose between the three process options – summary trial, reference to Sierra Leone authorities, or appointment of independent counsel. Sub-rule D provides that any prosecution by independent counsel may be heard by a single Judge of that Trial Chamber or another Trial Chamber. Sub-rule E applies the Rules of Procedure and Evidence to those proceedings, i.e. to the trial of the contempt case brought by the independent prosecutor pursuant to a decision to take option 77(C)(iii). Sub-rule F provides legal aid to poor persons facing such a trial. Sub-rule G provides for maximum penalties on conviction, both after summary trial or trial prosecuted by the independent counsel. Moving on to the stage after conviction, Sub-rule H provides for payment of any fĳine to the Registrar, and Sub-rule I gives the Court power to order an additional professional penalty if the convicted defendant is of counsel. Sub- rule J moves us forwards to the Appeal stage. It says: “Any decision rendered by a Single Judge or Trial Chamber under this Rule shall be subject to appeal.” Sub-rule K provides that “appeals pursuant to this rule” – i.e. by a convicted defendant, or by a dissatisfĳied prosecutor – shall be heard by three Judges of the Chamber, and Sub-rule L provides for the unhappy if unlikely circumstance of a contempt committed during appeal proceedings. 27. Rule 77 has only to be read – or set forth as above – to recognise that it is a coherent and chronological code, setting out the procedure at every stage from the time the allegation is made to the fĳinal appeal against conviction or acquittal. Sub-rule J comes into play after the fĳinal decision of conviction or acquittal (under Sub-rules D, E & F) and after sentencing as provided for by sub-rules G, H & I. By simple and self-evident alphabetical declension, Sub-Rule J is next in time. It opens the door to a direct appeal (without leave) to a three Judge appeal court. It is directly before the constitution of the appeal bench triggered by an appeal (K), and it is before provision is made for dealing with contempts at hearing: Sub-Rule (L). It is, therefore, not a Rule that should come into play (even with leave) before a fĳinal decision is made by the Trial Judge. And in its context, it is a Rule that only 972 part iii allows an appeal by the parties involved in the trial – i.e. the alleged contemnor (if convicted) and the prosecutor (if there has been an acquittal). It cannot be activated at any stage by a defendant in another trial who may have a connection with the contemnor, and it cannot be activated at all prior to the result of the contempt trial. 28. The defence seek to appeal these decisions taken under Rule 77(C) in reliance upon a literal reading of Rule 77(J) divorced from its context. “Any decision” they argue, whether interlocutory or indeed utterly procedural – a decision to adjourn, for example – can provide the trigger for summoning three international Judges to consider the Appeal. This would cause unjustifĳiable expense and intolerable delay to a process which demands speedy resolution, especially when it involves members of a defence team or relatives of defendants. A literal interpretation which leads to such absurdity should if possible be avoided. As Judge David Hunt pointed out in Prosecutor v. Milutinovic and ors, “The Rules of procedure and Evidence were intended to be the servants and not the masters of the Tribunal’s Procedures.”9 Older common law decisions use a more dated analogy (“the relation of rules of practice to the work of justice is intended to be that of handmaid rather than mistress”10) but the principle is the same: literal interpretation of Rules of Court which would lead to counter-productive or bizarre results or lack of public confĳidence should be avoided by purposive interpretation. 29. There is no need in this case to rely on the argument from absurdity: the chronological coherence of Rule 77’s alphabetical order produces an obvious and purposeful meaning. ‘Any decision’ means in context ‘any fĳinal decision’ and not “any decision taken by the Court at any time in the course of investigating or processing a contempt allegation.” So this appeal is incompetent in so far as it relates to the two decisions taken by the trial chamber under sub-rule C. 30. The prosecution has argued that Sub-Rule E may permit interlocutory appeals on contempt-related decisions if leave has been granted by the trial chamber under 73B. Sub-Rule E applies Rules of Procedure in Parts IV-VIII, within which Rule 73B falls, “as appropriate.” In view of my interpretation of Rule 77(J), application of 73B to a decision taken under 77(C)(iii) would be inappropriate. That is a decision to appoint an independent counsel to collect and consider evidence: such decisions, routinely made by law enforcement agencies, are not normally susceptible to appeal or to judicial review. Moreover, as this case in particular demonstrates, contempt proceedings are apt to disrupt trials and it is of great importance that they should be concluded as quickly as possible – and that means, without interlocutory appeal.

9 Prosecutor v. Milutinovic and ors, ICTY, 8 November 2002, IT-99-37-1, Decision on disclosure of ex parte submissions, para. 29. 10 In the matter of an Arbitration, 1907 1KB1, at p. 4 (per Henn-Collins MR). interlocutory decisions – appeals chamber 973

b) The “Interim Measures” Appeal 31. The appeal relating to ‘interim measures’ is a diffferent matter. Such measures are not specifĳically provided for under Rule 77. The prosecution suggested that the measures could be imposed under Rule 54, and the court apparently agreed, although did not say so in terms. The Appeals Chamber considers they were in reality Rule 75 “measures for the protection of Victims and Witnesses.” As such, they were ancillary to the protective orders designed to preserve the anonymity of Witness TF1-023 and of prosecution witnesses yet to come. They were an ‘augmentation’ of existing measures, as provided by Rule 75(I). That sub-rule specifĳically allows applications to “rescind, vary or augment protective measures” to be made to the Trial Chamber. It should not normally be necessary, therefore, to seek alteration by way of appeal. But if the defence – or the prosecution – wishes to appeal a decision made under Rule 75, or Rule 54, then it must seek leave from the Trial Chamber pursuant to Rule 73B. 32. The Trial Chamber, although it made no explicit reference to Rule 75 as such, stated that it was imposing the interim measures because “the duty of the court is to ensure that its orders for protected witnesses are upheld and to ensure that allegations against persons associated with the reference are properly heard and ruled on.”11 The protective measures had already been ordered in relation to Witness TFI-023 and Rule 75 I provides for orders which re-inforce existing protections. It is apt for use to prevent further violations, and was so used by the ICTY Trial Chamber in Simic.12 There is no basis, therefore, for disputing the Trial Chamber’s jurisdiction to make the “interim measures” order. But since that interlocutory order was not made pursuant to the Rule 77 contempt jurisdiction, but in a case to which the appellants were parties, it follows that they have a right to appeal subject to the Rule 73(B) leave requirement.

c) Standing to Appeal 33. This appeal is brought without leave by the three defendants in the AFRC trial. None are subject to the contempt investigation ordered by the Trial Chamber. Their counsel have not been assigned to represent any of the fĳive alleged contemnors nor do they purport to have been instructed to represent them. It follows that they have no standing, in any event, to prosecute an appeal against the two decisions taken by the Trial Chamber in relation 1) to its reason to believe that a contempt had been committed by others or 2) to its direction for an independent investigation of that alleged contempt.

11 Ibid., p. 15, lines 16-19. 12 ICTY, Prosecutor v. Simic et al., IT-95-9-T, 30 September 1999. 974 part iii

34. The only decision in relation to which these appellants have standing is the decision to impose interim orders which afffected them in the way already described. That decision was efffectively taken under Rule 75, but might also be supported by the inherent power, or by the power under Rule 54. In relation to all such decisions, leave to appeal must fĳirst be obtained under Rule 73B. Although this matter was inconclusively raised on 10 March, leave to appeal was not granted. For that reason alone, this appeal against the “interim measures” is incompetent.

Conclusion 35. This purported appeal must be struck out. There can be no appeal, either by prosecutor or defendant, under Rule 77(J) against decisions taken under Rule 77(C)(iii) unless or until a conviction or acquittal has been entered in relation to a contempt proceeding. The only defendant who has standing to bring such an appeal is the defendant convicted of contempt. A defendant in a war crimes trial may appeal ancillary and/or interim orders made to augment an existing witness protection order, even if arising from an alleged contempt, but only by leave of the trial chamber granted under Rule 73B. Honourable Justice Ayoola appends a Separate and Concurring Opinion to the present Decision. Honourable Justice King appends a Separate and Partially Dissenting Opinion to the Present Decision. Done at Freetown this day 23rd of June 2005. IN THE APPEALS CHAMBER

SEPARATE AND CONCURRING OPINION OF HON. JUSTICE EMMANUEL AYOOLA ON THE DECISION ON APPEAL AGAINST THE 10 MARCH 2005 ORAL RULING ON THE ALLEGATIONS OF CONTEMPT

Office of the Prosecutor: Defence Counsel for Alex Tamba Brima: Luc Côté Kevin Metzger Lesley Taylor Glenna Thompson Boi-Tia Stevens Kojo Graham Defence Counsel for Brima Bazzy Kamara: Wilbert Harris Mohamed Pa-Momo Fofanah Defence Counsel for Santigie Borbor Kanu: Geert-Jan Alexander Knoops Carry J. Knoops Abibola E. Manley-Spaine 976 part iii

Introduction

36. Alex Tamba Brima, Brima Bazzy Kamara and Santigie Borbor Kanu (“the appellants”) are, respectively, standing trial before Trial Chamber II (“the Trial Chamber”) of the Special Court for Sierra Leone (“the Special Court”). 37. During trial proceedings on 10 March, 2005, a protected witness, TFI – 023, informed the Trial Chamber that on 9 March, 2005, when she was on her way home in a vehicle, two women whom she saw but had not known before made remarks that they had seen her, called her name and threatened her that they (she and them) had come together at “daggers drawn.”1 38. Counsel for the Prosecutor, Ms. Taylor, informed the Trial Chamber that the Offfĳice of the Prosecutor had that morning received two written reports relating to two separate incidents, of which the incident mentioned by the protected witness was one, and that those reports indicated that there was a prima facie case of contempt against fĳive persons, namely: Brima Samura (the investigator of the Defence team for the Accused Brima), pursuant to Rule 77(A)(ii) and Margaret Fomba, Nene Binta Bah, Anita Kamara and Ester Kamara, pursuant to Rule 77(A)(iv). She submitted that, in the circumstances, it was appropriate for the Trial Chamber to make certain interim orders.2 39. In the event, the Trial Chamber, after some preliminary statements, ruled and made orders in the following terms:3 “I consider that the report before the Court constitutes prima facie grounds for bringing persons named before the Court to show cause why they are not in breach of Rule 77(i)(iv). Notwithstanding Mr. Metzger’s submissions, I am of the view that there are issues which go to the hearing that he raised and they cannot be ruled upon or determined at this time today. The duty of the Court is to ensure its orders for protected witnesses are upheld and to ensure that allegations against the persons associated with the defence with the accused are properly heard and ruled upon. We are also concerned that in the light of Mr. Metzger’s submission, there is possibility that some counsel may have to give evidence in this Court and, accordingly, this Court may not be the appropriate forum. I refer counsel to Rule 77 and the powers of the Court. I consider that there is prima facie grounds that the following persons should be brought before the Court to show cause why they are not in breach of Rule 77(1)(a)(iv) and (ii). Accordingly, this Court directs an order that the Registrar appoint an independent counsel to investigate and to prosecute the following persons: Margaret Fomba, Neneh Binta Bah, Anifa Kamara, Ester Kamara, Brima Samura pursuant to Rule 77(C)(iii) of the Rules of Procedure. The Court directs that the investigation and appropriate appointment be done expeditiously.

1 Transcript, 10 March 2005, p. 4. 2 Transcript, 10 March 2005, pp. 7-8. 3 Transcript, 10 March, 2005, pp. 15-16. interlocutory decisions – appeals chamber 977

The Court further directs that they be brought before this Court or an alternate Court that may have to be appointed if counsel are involved to be dealt with in accordance with Rules 77(C)(i). The Court further orders that Brima Samura be suspended from this Court and return all Court documents and information pending investigation and hearing. I accept prima facie it is an interim measure. Further, the Court orders and directs that Margaret Fomba, Neneh Binta Bah, Anifa Kamara and Ester Kamara may not enter the public gallery pending the investigation and hearing of this matter. We direct that the independent counsel prosecute this matter pursuant to Rule 77(C)(iii). That is the ruling of the Court.” 40. It is to be noted that before the ruling and orders were made Mr. Metzger who was counsel for Brima Bazzy Kamara (the 2nd accused) had intervened to say that “it appears that an allegation has been made concerning a member of my team and member of other or certainly relatives of other teams, (sic) and the defence have not been called upon to either meet the allegation that has been made or deal with anything.”4 41. The Presiding Judge of the Trial Chamber had responded that:5 “… we are going to direct a full investigation and then a hearing, in which all the Defence will, of course be fully heard and as in any hearing, the defence is entitled to be heard, but until there is an investigation, I think it is premature to invite the defence to lay out their case.” 42. On Mr. Metzger’s persistence that he be heard on the interim measures the Trial Chamber proposed to make, the Presiding Judge agreed to hear him, but “only on the question of Brima Samura and that alone.”6 Thereupon Mr. Metzger addressed the Trial Chamber, as it was put, “only on the question of Brima Samura”7 who was the investigator of the Brima defence team. The Trial Chamber thus had before it Mr. Metzger’s submission on which it was obliged to render a ruling as well as the report of an alleged contempt of the Court in respect of which it had to take steps in terms of Rule 77(C).

The Appeal

43. The appellants have now appealed from what has been described as the ‘Oral ruling of the Trial Chamber delivered by the Presiding Judge 10 March 2005’ which contained the Trial Chamber’s ruling on the submission made by counsel on behalf of the investigator of the Brima defence team and the exercise of power

4 Transcript, 10 March 2005, p. 8 5 Transcript, 10 March 2005, p. 8 6 Transcript, 10 March 2005, p. 8 7 Transcript, 10 March 2005, p. 9 978 part iii pursuant to Rule 77(C)(iii) by the Trial Chamber on the allegation that certain persons may have been in contempt of the Special Court. 44. The appellants’ appeal as contained in their “Joint Defence Notice of Appeal” is from “both the interim measures as well as the decision of the Trial Chamber by which it imposed an investigation under Rules 77(C)(iii).” They appealed on three grounds as follows: (a) First Ground of Appeal Error in law and/or fact due to violation of the right to have a fair hearing (principle of audi alterem partem) in the context of Rule 77(C)(iii) in conjunction with Rule 54 and Rule 77(E) of the Rules, given the fact that both the decision on the interim measures, as well as the imposition of the inquiry pursuant to Rule 77(C)(iii), were taken on merely information and documents provided by the Prosecution, namely the letter of the Witness and Victims Unit and the attached reports of security services and support stafff. (b) Second Ground of Appeal Error in law and/or fact due to a (sic.) erroneously acceptance of a prima facie case for contempt of court. Rule 77(C) provides for the criterion that the Trial Chamber must have “reason to believe that a person may be in contempt of the Special Court.” The Defence holds the view that this threshold can only be met when both a procedural standard is met (see appeal ground 1 above), as well as a substantive standard in that a certain amount of verifĳiable facts lie before the Trial Chamber. It is this latter standard that forms part of this appeal ground. (c) Third Ground of Appeal Error in law and/or fact due to violation of the principle of proportionality: although Rule 77(C) grants the Trial Chamber consideration discretionary power as to the three options specifĳied under (i) – (iii), those options should nonetheless be assessed based on the principle of proportionality and subsidiarity.

Relief Sought

45. On these grounds the Appellants sought relief that the Appeals Chamber should: (i) Find the appeal admissible (ii) Grant the appeal and reverse the impugned decision, both as to the interim measures and the order pursuant to Rule 77(C)(iii), and/or (iii) Any other decision the Appeals Chamber deems appropriate. 46. The grounds of appeal are vague and in some parts difffĳicult to understand. For instance, ground 1 complained of violation of the right to fair hearing without stating whose right was violated; and, ground 2 is hardly comprehensible. Doing the best one can, it would appear that the complaint of the appellants is that the interlocutory decisions – appeals chamber 979 decision on the interim measures imposed by the Trial Chamber as well as the imposition of enquiry pursuant to Rule 77(C)(iii) should be set aside because (i) they were in violation of the right to fair hearing in that the Trial Chamber had acted on information and documents provided by the Prosecution; (ii) the Trial Chamber proceeded on a wrong criterion in terms of Rule 77(C) and (iii) it did not advert to the principle of proportionality in the steps it took. 47. As the threshold questions raised in the appeal by the parties may be decisive it is unnecessary to rehearse, at this stage, and consider for the purpose of determination of the appeal, the profuse submissions made on the merits. If the appeal is incompetent, no useful purpose is served by considering and pronounc- ing on the merits of what is merely a purported appeal. A fĳinal appellate tribunal should only pronounce on the merits of an appeal of which it is properly seized. It sufffĳices to re-iterate that the accused in the criminal trial are the appellants, and that their challenge is (i) to the powers exercised by the Trial Chamber pursuant to Rule 77(C) on the report made to it of certain incidents that may have amounted to a contempt of the Special Court, and (ii) to the interim measures imposed by the Trial Chamber. 48. In regard to the power exercised by the Trial Chamber pursuant to Rule 77(c)(iii) the threshold questions are: (i) whether the means of challenging the exercise of those powers is by appellate process; (ii) if it is, whether the appellants are the persons competent to bring the appeal; (iii) if the appellants are competent to bring the appeal, whether they can do so without fĳirst obtaining leave of the Trial Chamber. In regard to the interim measures imposed by the Trial Chamber, the threshold questions are whether the appellants are competent to bring the appeal and, if so, whether it is proper for them to do so without, fĳirst, obtaining leave of the Trial Chamber. 49. In regard to these issues the appellants put their case thus: (i) the provisions of Rule 77(J) of the Rules of Procedure and Evidence (“the Rules”) that “any decision rendered by a single Judge or Trial Chamber under this Rule shall be subject to appeal” specifĳically embraces the term “any decision” which, it is submitted, includes a decision pursuant to Rule 77(C)(iii); (ii) although Rule 77 does not spe- cifĳically refer to interim measures in the context of a contempt of Court investigation and the Trial Chamber had founded its interim order on Rule 54, the interim measures were closely connected to the decision under Rule 77(C)(iii) and were appealable in accordance with Rule 77(J); (iii) Rule 77(J) having specifĳically provided that any decision under Rule 77 “shall be subject to appeal” no leave to appeal was necessary. 50. For its part, the Prosecution submitted that the “purported” defence appeal should be rejected on the grounds, fĳirst, that there was no legal basis in the Rules for bringing such an appeal and, secondly, that it is lacking in merits. 980 part iii

51. The Prosecution submitted that: Although Rule 77(J) of the Rules provides that “Any decision rendered by a Single Judge or Trial Chamber under this Rule (i.e. Rule 77) shall be subject to appeal,” Rule 77(J) referred to a decision under Rule 77(A), (B) or (G) fĳinding a person to be, or not to be, in contempt of the Special Court and imposing a penalty on a person held to be in contempt. An interlocutory or interim decision of a Trial Chamber in contempt proceedings is not a decision made under Rule 77 even if it is a decision made in Rule 77 proceedings. Interlocutory decisions and orders made in contempt proceedings are made under Rule 54 or Rule 73 and not under Rule 77 itself. An interlocutory appeal against a decision of a Trial Chamber in contempt proceedings, as in any other kind of proceeding before a Trial Chamber, requires the leave of the Trial Chamber pursuant to Rule 73(B). In the absence of leave to appeal pursuant to Rule 73(B) the appeal should be rejected to the extent that it relates to the interim measures ordered by the Trial Chamber. 52. The Prosecution conceded that the decision of the Trial Chamber to order the appointment of an independent counsel pursuant to Rule 77(C)(iii) was a decision under Rule 77. However, it went on to submit that there being no procedure by which a person who is being investigated by the Prosecutor of the Special Court for serious violation of international humanitarian law can challenge the decision to investigate him, there was no basis for suggesting that the accused in this case, who were not being investigated for contempt, could challenge a decision to investigate other person for contempt. 53. On the issue of standing it was submitted that, in regard to challenge of the Trial Chamber’s decision on the basis of alleged violation of the rights of the suspected contemnors, the Appellants lacked standing. It was argued that “the Accused in this case and their counsel only have standing to challenge the Trial Chamber’s decision to the extent that they allege that the rights of the three Accused in this case have been specifĳically afffected.” Joint Defence Reply

54. In the Joint Defence Reply, the Appellants discussed the Brdanin8 case which was referred to in one of the footnotes9 of the Prosecution response and argued that the decision in that case was inapplicable. The appellants claimed standing to appeal because, as they argued, the “mere fact that all of the Accused are not allegedly involved in potential contempt of court as such, cannot take away the fact that they have a reasonable interest to a participation in these proceedings as the outcome thereof afffects the fairness of their case,”10 even if, indirectly. It was

8 Prosecutor v. Brdanin, ICTY Case No. IT-99-36-T [1 September, 2004]. 9 Prosecution Response, p. 4, footnote 9. 10 Joint Defence Reply, para. 10. interlocutory decisions – appeals chamber 981 clear from the Appellant’s reply (para. 9) that they had proceeded on the footing that they were appealing from a decision made in the case against the Accused.

Discussion

55. Central to a determination of the threshold issues is a proper appreciation of the nature of contempt proceedings under Rule 77 of the Rules generally and, in particular, the true nature and ambit of Rules 77(C) and 77(J). 56. Rule 77(A) restates the inherent power which inheres in any superior court to punish for contempt any person who knowingly and wilfully interferes with administration of justice. Rule 77(C) sets out the several powers that a Judge or Trial Chamber who has reason to believe that a person may be in contempt of the Special Court may exercise. It is apt to note that whether the Judge or Trial Chamber exercises any of those powers is at the discretion of the Judge or Trial Chamber. 57. The powers that a Judge or a Trial Chamber may exercise pursuant to Rule 77(C) are to: (1) Deal with the matter summarily himself or itself; (2) Refer the matter to the appropriate authorities of Sierra Leone; (3) Direct the Registrar to appoint an experienced independent counsel to investigate the matter and report back to the Chamber as to whether there are sufffĳicient grounds for instigating contempt proceedings. If the Chamber considers that there are sufffĳicient grounds to proceed against a person for contempt, the Chamber may issue an order in lieu of an indictment and direct the independent counsel to prosecute the matter. 58. When the summary option is chosen, the Judge or Trial Chamber acts, as it is usually put, “ex mero motu.” The Judge or Trial Chamber does not need, and is not expected, to give to the alleged contemnor any formal notice of his intention to initiate summary contempt proceedings at that stage and to ask him to address whether or not such should be initiated. Since the summary procedure is reserved for cases of contempt in the face of the court, the Judge or Trial Chamber deals, there and then, with the alleged contempt himself or itself and satisfĳies the demands of natural justice by stating clearly to the alleged contemnor the specifĳic charge against him, calling upon him and giving him an opportunity to “show cause” why he should not be committed for contempt. Evidently, it will be absurd to ask the alleged contemnor to show cause why he should not be called upon to show cause. 59. Where the Judge or Trial Chamber decides to exercise the power of referral to Sierra Leone authorities, the Judge or Trial Chamber does not at all take any decision as to the innocence or guilt of the alleged contemnor nor does he take 982 part iii any decision that would tie the hands of the appropriate Sierra Leone authorities. The Judge or Trial Chamber merely reports to such authorities that he or it has reason to believe that the alleged contemnor may be in contempt of the Special Court. It would then be for Sierra Leone authorities to investigate the matter and exercise a prosecutorial discretion, whether or not to prosecute the alleged contemnor. The Judge or Trial Chamber in such circumstances assumes a role similar to that of a complainant. The prosecutorial decision lies with Sierra Leone authorities. 60. The third option speaks for itself. It is clear from the provisions of Rule 77(C)(iii) that the Trial Chamber or Judge directs the Registrar to appoint an independent counsel who would investigate the matter and report back to the Chamber as to whether there are sufffĳicient grounds for instigating contempt proceedings. At that stage, beyond having reason to believe that a person may be in contempt of the Special Court, the Judge or Trial Chamber has not formed, and is not expected to have formed, any view as to the guilt or innocence of the person suspected to be in contempt, or even whether there would be sufffĳicient evidence to justify a prosecution of such person. The subsequent decision of the Judge or Trial Chamber pursuant to the report of the independent counsel, if it is reported that there are sufffĳicient grounds for instigating contempt proceedings, is a prosecutorial decision which is also at the discretion of the Judge or Trial Chamber. 61. The decision of the Judge or Trial Chamber to exercise any of the powers under Rule 77(c)(ii) or (iii) may or may not, eventually, lead to initiation of contempt proceedings. If contempt proceedings are initiated, the parties to such proceedings would be the prosecutor, which is the independent counsel, and the alleged contemnor. The parties to the criminal proceedings in the course of which the alleged contempt occurred do not by virtue of their being such parties become parties to the contempt proceedings. 62. It is expedient to observe at this point that the prerequisite to the exercise of the powers set out in Rule 77(C) is that the Judge or Trial Chamber must have reason to believe that a person may be in contempt of the Special Court. A Judge who or a Trial Chamber that has reason to believe that a person may be in contempt of the Special Court does not by that fact hold himself or itself out as having concluded that there is even prima facie evidence that the person is in contempt. There is a distinction between reasonable suspicion and prima facie case.11 ‘Reason

11 See Dunmbell v. Roberts [1944] 1 All ER 326 where Scott L.J. emphasising that reasonable suspicion is not to be equated with prima facie proof said (at p. 329): “The protection of the public is safeguarded by the requirement, alike, of the common law and, … of all statutes, that, the constable shall before arresting satisfy himself that there do in fact exist reasonable grounds for suspicion of guilt. That requirement is very limited. The police are not called upon before acting to have anything like a prima facie case for conviction.” interlocutory decisions – appeals chamber 983 to believe’ that contempt has been committed is another way of putting the prerequisite of ‘reasonable suspicion.’ Reasonable suspicion that a person may be in contempt are words that could have expressed the same prerequisite as ‘reason to believe.’ It is difffĳicult to fathom what useful purpose would have served at that stage by hearing the suspected contemnor, or the accused in the pending criminal trial, when, at that stage, all that the Judge or Trial Chamber is expected to act on are facts, which may not even be admissible in evidence, but sufffĳicient to give him reason to believe that a person may be in contempt. 63. In view of Rule 77(J) which provides that: “Any decision rendered by a single Judge or Trial Chamber under this Rule shall be subject to appeal,” it is expedient to consider the nature of the power exercised by a Judge or Trial Chamber under Rule 77(C). In so far as the powers exercised by a Judge or trial Chamber can be said to be a result of a decision to exercise such powers, it can be said that the exercise of such powers implies a ‘decision.’ However, it cannot be said that such decisions are judicial decisions. They are decisions of an executive nature and are not decisions, at that stage, that depend on any dispute or on the resolution of any conflicting facts or issues. The choice between options available under 77(c)(ii) or (iii) is determined not by law but by administrative convenience and expediency. Rule 77(J) deals with judicial decisions. Hence the use of the words ‘decision rendered.’ At the stage, when a Judge acts under Rule 77(C)(ii) there are, as yet, no investigation, no contempt proceedings and no parties. All there would have been were mere possibilities of cause to initiate contempt proceedings. Also, at the time when the Registrar is directed by a Judge or Trial Chamber to appoint an independent counsel to investigate under Rule 77(C)(iii) there are as yet no contempt proceedings and no parties. But mere possibilities. 64. Before I part with this aspect of the matter a passage in the opinion of Lord Radclifffe in the Privy Council case of Nakkuda Ali v. Jayaratne12 is apt in support of the view here expressed that the decision of a judge or Trial Chamber to act pursuant to Rule 77(C) is not a judicial decision subject to appellate review by the Appeals Chamber. In that case it was provided in the relevant statute that “where the Controller has reasonable grounds to believe that any dealer is unfĳit to be allowed to continue as a dealer” the Controller could exercise power to cancel the

See also the Privy Council Case of Inspector Shaeban – bin Hussein v. Chong Fook Kan and another {Privy Council Appeal No. 29 of 1968: Judgment delivered on 7 October 1969}, where their Lordships of the Privy Council said: “There is another distinction between reasonable suspicion and prima facie proof. Prima facie proof consists of admissible evidence. Suspicion can take into account matters that could not be put in evidence at all. Suspicion can take into account also matters which though admissible could not form part of prima facie case.” 12 [1951] A.C. 66 at p. 76. 984 part iii dealer’s licence given to him by the relevant Regulations in force in Ceylon. It was held that the words must be construed to mean that there must in fact exist reasonable grounds, known to the Controller, before he could validly exercise the power. Lord Radclifffe in that case observed:13

It is not difffĳicult to think of circumstances in which the Controller might in the ordinary sense of the words, have reasonable grounds of belief without having ever confronted the licence holder with the information which is the source of his belief. It is a long step in the argument to say that because a man is enjoined that he must not take action unless he has reasonable ground for believing something he can only arrive at that belief by a course of conduct analogous to the judicial process. [Emphasis mine] Also, in that case, Lord Radclifffe went on to say:14 In truth when he cancels a licence he is not determining a question; he is taking executive action to withdraw a privilege because he believes, and has reasonable grounds to believe that the holder is unfĳit to retain it. 65. Although the Prosecution may be right in the submission that “an interlocutory appeal against a decision of a Trial Chamber in contempt proceedings, as in any other kind of proceedings before the Special Court, requires the leave of the Trial Chamber pursuant to Rule 73(B)”15 the exercise of power by the Judge or Trial Chamber pursuant to Rule 77(C)(iii) cannot logically be said to be in ‘contempt proceedings,’ because, at that stage, there would have been no contempt proceedings but a decision to launch an inquiry whether there would be sufffĳicient evidence to initiate such proceedings. 66. By way of recapitulation, the following propositions applicable to this case are made: (i) Contempt proceedings pursuant to Rule 77 are proceedings separate from the proceedings in the course of which the alleged contempt was occasioned or to which the conduct of the contemnor was directed. (ii) The parties to the proceedings in the course of which the alleged contempt may have arisen do not by virtue of that fact become parties to the contempt proceedings, when initiated, unless they are the alleged contemnors. (iii) In regard to the description of the powers exercised by a Judge or Trial Chamber under Rule 77(C) as a “decision,” such decision is not a judicial decision but decision in the nature of executive decision, whereas words ‘decisions rendered’ in Rule 77(J) imply judicial decisions.

13 Ibid., p. 76. 14 Ibid., p. 78. 15 Prosecution Response, para. 7. interlocutory decisions – appeals chamber 985

An appeal, as contemplated in our Rules of Procedure and Evidence, is the mechanism by which an Appeals Chamber reviews the decision of a Trial Chamber rendered in initiated proceedings of which the Trial Chamber is or has been seized. (iv) Choice of power that a Judge or Trial Chamber decides to exercise pursuant to Rule 77(C) does not amount to a prosecutorial decision, but may lead, eventually, to that. Even in regard to prosecutorial decisions, there may be several ways of challenging such decisions, but an appellate process is not one of them. The Appeals Chamber is not set up to exercise a general and roving supervisory jurisdiction over the Trial Chamber so as to review such exercise of power conferred upon it by Rule 77(C.). (v) When, in terms of Rule 77(C), a Judge or Trial Chamber has reason to believe that a person may be in contempt of the Special Court, such person does not thereby become party to the pending proceedings or, at that stage, even to any proceedings. (vi) When Rule 77(C) provides that “Any decision rendered by a single Judge or Trial Chamber under this Rule shall as subject to appeal,” “decision rendered” must sensibly be interpreted as “decision rendered” in contempt proceedings that had already been initiated and not to steps taken by a Judge or Trial Chamber pursuant to Rule 77(C) which may or may not result in initiation of contempt proceedings and are merely steps in contemplation of a mere possibility of initiation of contempt proceedings. A decision cannot be “rendered” in proceedings that have not been initiated. These propositions applied to the powers exercised under Rule 77(C) in the present case. 67. Applying these propositions to the present proceedings the conclusion is inescapable that the appeal is incompetent because the provisions of Rule 77(J) do not apply to decision to exercise power under Rule 77(C). Even if there could be an appeal from the exercise of such powers the appellants who are not the suspected contemnors likely to be afffected by the order made pursuant to Rule 77(C)(iii) are not the proper parties to bring such appeal. It is far-fetched, misconceived and purely speculative to argue that the order directing the Registrar to appoint a special counsel to investigate whether there are sufffĳicient grounds to initiate contempt proceedings would impair a fair hearing of the pending criminal proceedings or that contempt proceedings which have not been initiated would have such efffect. Such argument could only be a try on designed to fashion a plat- form for an appeal by the appellants who will be strangers to contempt proceedings, if any, that may eventually emerge from the exercise of powers pursuant to Rule 77(C)(iii). 986 part iii

Concerning the Interim Measures. 68. However, in regard to the interim measures imposed by the Trial Chamber a diffferent consideration applies. Those measures can only, and do, derive their existence from the pending criminal proceedings in which the appellants were the parties as accused. The interim measures were imposed in a case in which the Appellants were parties. 69. The Rules confer appellate jurisdiction on the Appeals Chamber in clearly defĳined terms. Rule 73(B) empowers the Appeals Chamber to entertain interlocutory appeal from decisions rendered on motions, where the Trial Chamber has given leave to appeal. Rule 77(J) gives a right of appeal from a decision rendered by a Single Judge or Trial Chamber under Rule 77. Rule 106(A) confers jurisdiction on the Appeals Chamber to hear appeals from persons convicted by the Trial Chamber or from the prosecutor. 70. Where a Judge or a Trial Chamber acts pursuant to Rule 54 or Rule 75, an appeal by leave of the Trial Chamber is admissible. 71. The interim measures imposed by the Trial Chamber are not made pursuant to Rule 77 but pursuant to Rule 75. Any appeal from the decision imposing such measures without leave of the Trial Chamber is incompetent. It is unnecessary to consider whether the appellants have standing to appeal from such decision which does not directly afffect them. This is one of the considerations that the Trial Chamber would have had to advert to were leave sought from it. It is of interest that the persons directly afffected by the interim orders have not appealed from the orders. Be that as it may, for the purpose of this appeal it sufffĳices to fĳind that the appeal having been brought without the leave of the Trial Chamber, is incompetent.

Disposition

72. For the reasons which have been given, it is my opinion that the appeal is incompetent and should, therefore, be struck out. Done at Freetown this day 23rd of June, 2005. THE APPEALS CHAMBER

Before: Justice Raja Fernando, Presiding Justice Emmanuel Ayoola Justice George Gelaga King Justice Geofffrey Robertson Justice Renate Winter Registrar: Robin Vincent Date: 17 August 2005 PROSECUTOR Against Alex Tamba Brima Brima Bazzy Kamara Santigie Kanu (Case No.SCSL-04-16-AR77)

DECISION ON JOINT DEFENCE APPEAL AGAINST THE DECISION ON THE REPORT OF THE INDEPENDENT COUNSEL PURSUANT TO RULE 77(C)(iii) AND 77(D)

Office of the Prosecutor (Respondent): Court Appointed Counsel for Alex Luc Côté Tamba Brima: James C Johnson Glenna Thompson Kojo Graham Court Appointed Counsel for Brima Bazzy Kamara: Wilbert Harris Mohamed Pa-Momo Fofanah Court Appointed Counsel for Santigie Borbor Kanu: Geert-Jan Alexander Knoops Carry J. Knoops Anibola E. Manley-Spaine 988 part iii

THE APPEALS CHAMBER (“Appeals Chamber”) of the Special Court for Sierra Leone (“Special Court”) composed of Justice Raja Fernando, Presiding, Justice Emmanuel Ayoola, Justice George Gelaga King, Justice Geofffrey Robertson and Justice Renate Winter; BEING SEISED OF the “Joint Defence Appeal Motion against the Decision on the Report of Independent Counsel Pursuant to Rules 77(C)(iii) and 77(D) of the Rules of Procedure and Evidence of 29 April 2005 by Trial Chamber II” fĳiled on 3 May 2005 (“the Appeal”); CONSIDERING the “Prosecution Response to the ‘Joint Defence Appeal’ dated 3 May 2005” fĳiled 12 May 2005 (“the Response”); CONSIDERING the “Joint Defence Reply to the Prosecution Response to the ‘Joint Defence Appeal’ Dated 3 May 2005,” fĳiled on 16 April 2005 (“the Reply”); CONSIDERING the Order of the President of 17 May 2005 assigning the matter to the full bench of the Appeals Chamber; NOTING the Decision on the Report of Independent Counsel Pursuant to Rule 77(C)(iii) and 77(D) of the Rules of Procedure and Evidence of 29 April 2005 (“the Impugned Decision”); REFERRING to the Appeals Chamber Decision on Defence Appeal Motion Pursuant to Rule 77(J) on both the Imposition of Interim Measures and an Order Pursuant to Rule 77(C)(iii) of 23 June 2005 (“the Appeals Chamber Decision on the First Contempt Appeal”); CONSIDERING the Statute of the Special Court (the “Statute”) and the Rules of Procedure and Evidence (“the Rules”); NOW DETERMINES THE APPEAL ON THE BASIS OF THE WRITTEN ARGUMENTS OF THE PARTIES: 1. The Defence is challenging the Impugned Decision rendered by Trial Chamber II in which, after considering the matters disclosed in the Report of the Independent Counsel appointed by the Registrar in accordance with the Oral Ruling of 10 March 2005 pursuant to Rule 77(C)(iii) of the Rules, the Trial Chamber (i) ordered that orders in lieu of indictments be issued against the alleged contemnors, pursuant to Rule 77(C)(iii) of the Rules; (ii) directed that the Independent Counsel prosecute the alleged contemnors; (iii) decided that the Interim Order of 10 March 2005 shall remain in force until the fĳinal judgement in the respective contempt proceedings is delivered; and (iv) assigned the contempt proceedings pursuant to the orders in lieu of indictments to Trial Chamber I in accordance with Rule 77(D). interlocutory decisions – appeals chamber 989

2. The grounds of this Appeal are (i) that the Trial Chamber erred in law and/or in fact by erroneously fĳinding that there were “sufffĳicient grounds” to institute proceedings against the alleged contemnors without disclosing the report of the Independent Expert, (ii) that the Trial chamber erred in law and/or in fact by issuing the Impugned Decision without fĳirst deciding on several pending Motions, and (iii) that the Trial Chamber erred in law and/or in fact by failing to provide any arguments as to why the Impugned Decision considers that there are sufffĳicient grounds to proceed against the alleged contemnors. 3. It is the view of the Appeals Chamber that the Impugned Decision and the Defence’s three grounds of Appeal are directly related to the contempt proceedings under Rule 77. Those proceedings directed against the alleged contemnors are distinct from the proceedings in the main AFRC Case against the Appellants. The only part of the Impugned Decision which concerns the AFRC Case is the decision that the Interim Order of 10 March 2005 shall remain in force until the fĳinal judgement in the respective contempt proceedings is rendered, but the Defence does not challenge this aspect of the Impugned Decision in its Appeal. Background: the First Contempt Appeal 4. The background is fully set out in the Appeals Chamber Decision on the First Contempt Appeal. In brief, Prosecution Witness TFI-023 complained on 10th March 2005 that she had been subjected to threats from four women, including the wives of the Accused, as she was being driven from court the previous evening. The Prosecution produced witness statements incriminating Mr. Samura, the investigator of the Brima Defence team, as the person who divulged to the women the identity of this witness. Pursuant to Rule 77(C), the Trial Chamber decided on this material that there was reason to believe that a contempt may have been committed. It further appointed an experienced Independent Counsel to report back as to whether there was sufffĳicient grounds for instituting contempt proceedings. The attempted appeal by the three AFRC Accused against these two decisions failed, so this court held, because Rule 77(J) only permitted appeals against fĳinal contempt decisions – i.e. against conviction and acquittals – and because the appellants lacked standing since they were not potential defendants in the contempt investigation. 5. Trial Chamber II also imposed, on 10th March, certain “interim orders”: it suspended Mr. Samura from the Brima Defence team and ordered the appointment of a new investigator, and it banned the four women suspects from entering the public gallery. The Appeals Chamber held that these “interim measures,” aug- menting the protection already given to the witness, were capable of appeal because they were made under Rule 75 and not Rule 77. Such an appeal could, 990 part iii however, only be brought with leave of the Trial Chamber under Rule 73(B), and that leave had not been obtained. Submissions of the Parties 6. The current Contempt Appeal difffers from the previous one only slightly. It is relying on the following grounds of appeal: i. The Defence submits that Trial Chamber II erred in law and/or in fact by erroneously fĳinding that there were “sufffĳicient grounds” to institute proceedings against the investigator of the Brima Defence team and the four women without disclosing the report of the Independent Expert. ii. The Defence further submits that Trial Chamber erred in law and/or in fact by issuing the Impugned Decision without fĳirst deciding on several pending Motions dealing with procedural as well substantive aspects of the Trial Chamber’s initial Decision and that the Trial Chamber should have awaited their outcome. iii. The Defence fĳinally submits that Trial Chamber II erred in law and/or in fact by failing to provide any arguments as to why the Impugned Decision considers “that there are sufffĳicient grounds to proceed against” the alleged contemnors. 7. The Appeals Chamber notes that, although the Impugned Decision prolonged the interim measures ordered on the 10 March 2005, the Defence does not challenge this aspect any more. Thus, it is not necessary to discuss if and to what extent Trial Chamber II had the power to pronounce the said measures. 8. Before addressing the merits of the Appeal, the Appeals Chamber shall however address the preliminary issues of the Appellants right to appeal and of their locus standi which are raised by the Prosecution in its Response. First Preliminary Issue: Right to Appeal 9. In the Decision on the First Contempt Appeal it was stated that: “‘Any decision’ means in context ‘any fĳinal decision’ and not ‘any decision taken by the Court at any time in the course of investigating or processing a contempt allegation.’”1 10. The Appeals Chamber further refers to the Separate and Concurring Opinion of the Honourable Justice Ayoola (“the Concurring Opinion”) appended to the same Decision in which it is stated that: “In view of Rule 77(J) which provides that: “Any decision rendered by a single Judge or Trial Chamber under this Rule shall be subject to appeal,” it is expedient to

1 Appeals Chamber Decision on Defence Appeal Motion Pursuant to Rule 77(J) on both the Imposition of Interim Measures and an Order Pursuant to Rule 77(C)(iii) fĳiled 23 June 2005, para. 29. interlocutory decisions – appeals chamber 991

consider the nature of the power exercised by a Judge or Trial Chamber under Rule 77(C). In so far as the powers exercised by a Judge or trial Chamber can be said to be a result of a decision to exercise such powers, it can be said that the exercise of such powers implies a ‘decision.’ However, it cannot be said that such decisions are judicial decisions. They are decisions of an executive nature and are not decisions, at that stage, that depend on any dispute or on the resolution of any conflicting facts or issues. The choice between options available under 77(c)(ii) or (iii) is determined not by law but by administrative convenience and expediency. Rule 77(J) deals with judicial decisions. Hence the use of the words ‘decision rendered.’”2 11. The Concurring Opinion further states that: “Choice of power that a Judge or Trial Chamber decides to exercise pursuant to Rule 77(C) does not amount to a prosecutorial decision, but may lead, eventually, to that. Even in regard to prosecutorial decisions, there may be several ways of challenging such decisions, but an appellate process is not one of them. The Appeals Chamber is not set up to exercise a general and roving supervisory jurisdiction over the Trial Chamber so as to review such exercise of power conferred upon it by Rule 77(C.).”3 12. It follows from these fĳindings that a preliminary decision rendered under Rule 77(C) of the Rules is not a decision capable of appeal to this Chamber pursuant to Rule 77(J). It is the view of this Chamber that the impugned decision is not subject to appeal, for the reasons given in the Decision on the First Contempt Appeal which apply equally to the right to appeal asserted in this second case. Second Preliminary Issue: Locus Standi 13. In its Decision on the fĳirst Appeal on Contempt, the Appeals Chamber decided that: “This appeal is brought without leave by the three defendants in the AFRC trial. None are subject to the contempt investigation ordered by the Trial Chamber. Their counsel have not been assigned to represent any of the fĳive alleged contemnors nor do they purport to have been instructed to represent them. It follows that they have no standing, in any event, to prosecute an appeal against the two decisions taken by the Trial Chamber in relation 1) to its reason to believe that a contempt had been committed by others or 2) to its direction for an independent investigation of that alleged contempt.”4 14. Again, in Concurring Opinion, it is stated that: “(i) Contempt proceedings pursuant to Rule 77 are proceedings separate from the proceedings in the course of which the alleged contempt was occasioned or to which the conduct of the contemnor was directed.

2 Separate and Concurring Opinion of Hon. Justice Ayoola on the Decision on Appeal against the 10 March 2005 Oral Ruling on the Allegations of Contempt fĳiled 23 June 2005 and appended to the Appeals Chamber Decision ibid., para. 28. 3 Ibid., para. 31. 4 Appeals Chamber Decision on Defence Appeal Motion Pursuant to Rule 77(J) on both the Imposition of Interim Measures and an Order Pursuant to Rule 77(C)(iii) fĳiled 23 June 2005, at para. 33. 992 part iii

(ii) The parties to the proceedings in the course of which the alleged contempt may have arisen do not by virtue of that fact become parties to the contempt proceedings, when initiated, unless they are the alleged contemnors.”5 15. It is the view of the Appeals Chamber that, in the present Appeal, the issue of the Appellants’ lack of locus standi arises in the same terms as in the fĳirst Appeal. The Impugned Decision as well as the Defence grounds of Appeal are enshrined in the contempt proceedings, which are parallel to the proceedings in the AFRC Case. The only part of the Impugned Decision which concerns the AFRC Case is the decision that the Interim Order of 10 March 2005 shall remain in force until the fĳinal judgement in the respective contempt proceedings is rendered, but, as noted before, the Defence does not challenge this aspect of the Impugned Decision in its Appeal. 16. The arguments developed by the Defence in its Reply to the Prosecution Response on the issue of standing do not provide anything which might cause a change to the ruling of the Appeals Chamber in its Decision in the First Appeal on Contempt. In particular, the Appeals Chamber is not convinced by the submissions of the Defence that the outcome of the contempt proceedings will afffect the fairness of the case against the Accused in the AFRC trial and that they therefore have a reasonable interest to a participation in these proceedings. The contempt proceedings are parallel to the Case against the Accused and their outcome shall have no efffect on the Trial against them, as none of the Accused is indicted for having had a part in the alleged contempt. Therefore, it is the view of the Appeals Chamber that the Appellants have no locus standi in the current Appeal. 17. We hereby authorise Court Management to serve this Separate and Concurring Opinion during the offfĳicial recess period of the Special Court. As the Appellants have neither the Right to Appeal nor standing, THE APPEALS CHAMBER DISMISSES the Appeal in its entirety. The Honourable Justice George Gelaga King appends a Separate and Concurring Opinion. The Honourable Justice Geofffrey Robertson appends a Separate and Concurring Opinion. Done in Freetown this 17th August 2005.

5 Separate and Concurring Opinion of Hon. Justice Ayoola on the Decision on Appeal against the 10 March 2005 Oral Ruling on the Allegations of Contempt fĳiled 23 June 2005 and appended to the Appeals Chamber Decision ibid., para. 31. IN THE APPEALS CHAMBER

Before: Justice Raja Fernando, Presiding Justice George Gelaga King Justice Emmanuel Ayoola Justice Geofffrey Robertson Justice Renate Winter Registrar: Robin Vincent Date: 17 August 2005 PROSECUTOR Against Alex Tamba Brima Brima Bazzy Kamara Santigie Kanu (Case No.SCSL-04-16-AR77)

SEPARATE AND CONCURRING OPINION OF JUSTICE GEORGE GELAGA KING ON JOINT DEFENCE APPEAL AGAINST THE DECISION ON THE REPORT OF THE INDEPENDENT COUNSEL, PURSUANT TO RULE 77(C)(iii) and 77(D)

Office of the Prosecutor: Defence Counsel for Alex Tamba Brima: Luc Côté Kevin Metzger Lesley Taylor Glenna Thompson Boi-Tia Stevens Kojo Graham Defence Counsel for Brima Bazzy Kamara: Wilbert Harris Mohamed Pa-Momo Fofanah Defence Counsel for Santigie Borbor Kanu: Geert-Jan Alexander Knoops Carry J. Knoops Abibola E. Manley-Spaine 994 part iii

1. I have had the privilege of reading the draft Decision of Justice Renate Winter and I agree that the Appeal should be dismissed in its entirety. However, I am appending this separate opinion because my reason for the dismissal is only on one ground and that alone, that is, that the three Accused, Alex Tamba Brima, Brima Bazzy Kamara and Santigie Borbor Kanu have no locus standi to bring this appeal. 2. This present appeal dealing primarily with Contempt of Court is an offfshoot of a preceding Contempt of Court Appeal brought by the same three Accused1 and in which this Appeals Chamber delivered its Decision on 23 June 2005. In that Decision although I wrote a separate and partial dissenting Opinion, this Chamber held unanimously that the three Accused had no standing to prosecute that appeal. 3. As this Appeal arises out of the same circumstances as its predecessor, it is for the same reasons I gave earlier that I fĳind that the three Accused in this instant Appeal have no locus standi. I shall, therefore, repeat what I said: ‘As far as the three Accused, Alex Tamba Brima, Brima Bazzy Kamara and Sanitigie Borbor Kanu are concerned, as I have already premised, they are not and have not been charged with Contempt of Court. They are neither alleged nor suspected to be contemnors. The Contempt of Court proceedings which arose in the course of their trial on indictment were in respect of the fĳive persons I have already named: Brima Samura (not to be mistaken for 1st Accused Alex Tamba Brima), Margaret Fomba, Neneh Binta Bah, Anifa Kamara and Ester Kamara. It is obvious, therefore, that the three Accused lack standing in the contempt of court proceeding and I so hold. It is equally obvious that since those Accused persons have no standing in those proceedings it automatically follows that their respective counsel cannot have a standing on their behalf and I so hold.’2

4. On 10 March 2005 Trial Chamber II gave an oral ruling in which, inter alia, it ordered the Registrar to appoint an independent counsel to investigate and prosecute the fĳive alleged contemnors hereinbefore referred to.3 5. Consequent upon that oral ruling the Registrar on 11 March 2005 appointed Mr. Louis Tumwesige as Independent Counsel4 and on the 16 March 2005, Mr. Tumwesige submitted the report of his fĳindings to the Trial Chamber which issued its Impugned Decision on 29 April 2005, ordering the Independent Counsel to prosecute the fĳive alleged contemnors. It is against this Impugned Decision that the three Accused have appealed to this Appeals Chamber.

1 See Case No. SCSL-04-16-AR77. 2 Ibid., para. 25. 3 Transcript 10 March 2005, p. 15, lines 24–29, p. 16, lines 1–13. 4 See Impugned Decision – Preamble. interlocutory decisions – appeals chamber 995

6. The crucial question to be determined in this instance is whether the Defence Counsel in this appeal have a standing vis-à-vis the fĳive alleged and suspected contemnors. There is no evidence that any of the Defence Counsel was instructed by those alleged contemnors or anybody else to represent them. There is no evidence that the Defence Counsel or any of them has fĳiled any power of attorney with the Registrar to show that they had been engaged by any of the suspected contemnors to represent them as required by the Rules of Procedure and Evidence.5 It is also quite clear to me that there is no evidence to show that any of the Defence Counsel has any private, substantive or legally protected interest that is being harmed or threatened as a result of the Independent Counsel’s Report. The Defence Counsel do not come within the ambit of “aggrieved person”6 even when that test is applied. In all these circumstances, therefore, the inescapable conclusion is that the Defence Counsel have no locus standi to represent the fĳive alleged contemnors in whom the legal right to appeal inheres. 7. As I have held that the three appellants, Alex Tamba Brima, Brima Bazzy Kamara and Santigie Borbor Kanu, have no locus standi, it follows that I cannot thereafter deal with the substance of the grounds of appeal. To adjudicate on the merits will be a futile exercise as whatever conclusions are reached will be merely obiter dicta and therefore not binding as precedent. 8. I hereby authorise Court Management to serve this Separate and Concurring Opinion during the offfĳicial recess period of the Special Court. Done at Freetown this day 17th day of August 2005.

5 Rule 44(A). 6 See R. v. Russell ex parte Beaverbrook Newspapers Ltd [1969] IQB 342.

IN THE APPEALS CHAMBER

SEPARATE AND CONCURRING OPINION OF JUSTICE GEOFFREY ROBERTSON ON JOINT DEFENCE APPEAL AGAINST THE DECISION ON THE REPORT OF THE INDEPENDENT COUNSEL, PURSUANT TO RULE 77(C)(iii) and 77(D)

Office of the Prosecutor: Defence Counsel for Alex Tamba Brima: Luc Côté Kevin Metzger Lesley Taylor Glenna Thompson Boi-Tia Stevens Kojo Graham Defence Counsel for Brima Bazzy Kamara: Wilbert Harris Mohamed Pa-Momo Fofanah Defence Counsel for Santigie Borbor Kanu: Geert-Jan Alexander Knoops Carry J. Knoops Abibola E. Manley-Spaine 998 part iii

1. This is an interlocutory appeal by three defendants in the AFRC trial over their Trial Chamber’s decision of 29th April 2005 to institute contempt proceedings against fĳive persons (none of them defendants) alleged to have been involved in the intimidation of a protected prosecution witness. It is brought without leave of that Trial Chamber, on the assumption that Rule 77(J) permits the appeal of any judicial decision which is taken under Rule 77(C) in the course of investigating a possible contempt or initiating a prosecution for it, and on the further assumption that defendants in the main trial have standing to bring such an appeal, even though they are not suspected contemnors. Both assumptions were rejected in an earlier decision of this court in the First Contempt Appeal, for reasons which the chamber now decides must render this appeal incompetent as well. I concur, and append my separate opinion.

Background: The First Contempt Appeal 2. The background is fully set out in the judgements in the First Contempt Appeal. In brief, prosecution witness TFI-023 complained on 10th March that she had been subjected to threats from four women, including the wives of the defendants, as she was being driven from court the previous evening. The prosecution produced witness statements incriminating Mr. Samura, the investigator on the Brima team, as the person who divulged to the women the identity of this witness. Pursuant to Rule 77(C), the Trial Chamber decided on this material that there was reason to believe that a contempt may have been committed. It further decided against trying the matter summarily and instead appointed an experienced independent counsel to report back as to whether there were sufffĳicient grounds for instituting contempt proceedings. An attempted appeal by the three AFRC defendants against these two decisions failed, so this court held, both because Rule 77(J) permitted only appeals against fĳinal contempt decisions – i.e. against conviction and acquittals – and because the appellants lacked standing since they were not potential defendants in the contempt investigation. Judge Ayoola, in a separate concurring opinion, held that decisions to investigate or to direct a prosecution are not decisions to which the right of appeal, provided by Rule 77J, can apply. 3. The Trial Chamber on 10th March had imposed certain “interim orders”: it suspended Mr. Samura from the Brima defence team and directed the appointment of a new investigator, and it banned the four women suspects from entering the public gallery. The Appeals Chamber held that these “interim measures,” aug- menting the protection already given to the witness, were capable of appeal because they were made under Rule 75 and not Rule 77. Such an appeal could, however, only be brought with leave of the Trial Chamber under Rule 73(B), and that leave had not been obtained. interlocutory decisions – appeals chamber 999

Background to This Appeal 4. The contempt investigation and the interim orders were seriously disruptive of a trial that had hitherto proceeded smoothly and it was of utmost importance to the administration of justice that the allegations should be resolved expeditiously. On 10th March, after it made the decision to proceed to have the contempt investigated by independent counsel, the Trial Chamber adjourned for fĳive days at the defence request. The Registrar, with commendable alacrity, appointed an experience independent counsel the following day. That counsel, Mr. Lewis Tamwesige, was also conscious of the need for expedition, and submitted a report of his fĳindings to the Trial Chamber fĳive days later – on 16th March. I note with some concern that the Trial Chamber decision to direct him to prosecute was not issued until 29th April – fully six weeks later. 5. This delay caused further disruption to the trial. After the initial 5-day adjournment, a further fortnight’s adjournment was granted to enable the defence offfĳice to fĳind and employ another investigator to serve the Brima team, but when the court reconvened on 5th April it transpired that the defence offfĳice had submitted the names of various candidates to Mr. Brima personally, and he had vetoed them all. The defendants were said to have taken umbrage at the interim orders, to the extent that they refused to attend the resumed hearing in person. Their lead counsel were inexplicably absent from that hearing. The co-counsel who did appear said that although they were capable of cross-examining the next prosecution witnesses they could not do so because the unresolved allegations against Mr. Samura had “tainted” (their word) all the information he had supplied for cross-examination. Although they did not represent any of the fĳive persons suspected of contempt, they lodged an application for disclosure to themselves of the independent counsel’s report. When the next prosecution witness testifĳied, they asked to reserve their cross-examination to some future date – a request that the court did not grant, although it indicated that it would be prepared to entertain an application for recall of the witness, without any guarantee that the application would be granted. 6. The matters raised by the AFRC defendants at the hearing on 5th April were dealt with appropriately by the Trial Chamber, although it had not yet taken the step of directing a prosecution. It deprecated the practice of the defence offfĳice of submitting the names of investigators to a defendant personally, as if these investigators were akin to counsel they might chose to instruct. The role of the “investigator” is ill defĳined: it simply means a member of the defence team who is not legally qualifĳied but is being hired by the Principal Defender, usually at the instigation of the leading counsel of a particular defence team, to act as an enquiry agent. The investigator is not employed by or responsible to the defendant: his employer is the Principal Defender, who as head of the Defence Offfĳice makes him available 1000 part iii to work under the direction of a team leader. It is initially for the Principal Defender to decide whether the “equality of arms” principle justifĳies the employment of such a person and his allocation to a particular defence team, and all matters relating to that employment must be determined by the Principal Defender in consultation with the lead counsel. The Principal Defender is subject to the direction of the court and its interim order that Mr. Samura be suspended pending conclusion of his contempt trial was, in efffect, an order to the Principal Defender to suspend Mr. Samura for that period. 7. The defence – Mr. Brima’s counsel in particular – complained at the hearing on 5th April that the suspension of Mr. Samura had caused problems for its preparations. That I can readily accept, but there was a serious allegation against him which had to be resolved. He had only been employed as an investigator for two months but he had the expressed confĳidence of counsel, which made it difffĳicult for the trial chamber to accept that the information he had provided was “tainted” by the allegation – even if proved – that he had disclosed the name of a protected witness: it rejected this argument as “speculative.” Trial Chambers must offfer defendants as fair a trial as possible and do their best to avoid giving cause for any sense of grievance, but they cannot allow repeated adjournments or indefĳinite delays or be expected to inconvenience witnesses (especially protected witnesses) by having them recalled months later, at a time when cross-examination is more convenient for a defence counsel. Good cause will need to be shown – and not merely asserted – before leave is given to recall a witness in these circumstances.

The Order of 29 April 8. The Order which the defendants wish to appeal was eventually issued on 29th April. The delay has not been explained. No doubt the intervention of the Easter recess played some part, and there may have been some difffĳiculty within the court over the procedural question of how the contempt trials could be accommodated. The AFRC Trial Chamber took the view that its members should not conduct the trial of the investigator or the trial of the four women. That meant that the contempt proceedings would have to be heard by a judge from Trial Chamber 1, the only other Trial Chamber in this court, which is fully occupied with two complex trials conducted in alternate session. The court has no ad hoc or alternate judges attached to any chamber, and must accommodate contempt proceedings as best it can, accepting an overriding duty to dispose of them expeditiously. It will usually be appropriate, when a Trial Chamber cannot deal with a contempt summarily, for the matter to be heard by a judge who has had no pre- existing involvement in the proceedings from which the contempt arose. 9. This follows from the unusual nature of the task imposed on the Trial Chamber by Rule 77(C)(iii), which provides that for serious suspected contempts, the chamber may interlocutory decisions – appeals chamber 1001

“direct the Registrar to appoint an experienced independent counsel to investigate the matter and report back to the chamber as to whether there are sufffĳicient grounds for investigating contempt proceedings. If the Chamber considers that there are sufffĳicient grounds to proceed against a person for contempt, the Chamber may issue an order in lieu of an indictment and direct the independent counsel to prosecute the matter.” 10. This Rule requires the Chamber to decide fĳirstly whether the report contains “sufffĳicient grounds” – in efffect, whether it makes outprima a facie case – for indicting a suspect. If so, the Chamber must then decide, as a matter of discretion, whether to direct a prosecution of that suspect. This echoes the old “voluntary bill” procedure of the common law, in which a High Court judge could decide to commit a suspect for trial without the need for committal proceedings. Under Rule 77(C)(iii) the judges of the court who make the determination that the evidence is prima facie probative of guilt are also given the discretion – which normally resides in a Director of Public Prosecutions – to decide whether, on public interest or other grounds, this sustainable prosecution should go ahead. 11. There can be an objection to having a judge who has been involved in a pre- trial determination as to likely guilt subsequently sit on the trial which must determine that guilt. It was explained by the European Court of Human Rights in the important case of Hauschildt v. Denmark.1 A perception of partiality will arise if the judge’s fĳinal decision can be seen as a self-fulfĳilling prophecy, in so far as a “guilty” verdict might endorse or justify his own pre-trial determination. In Hauschildt, a judge who had denied bail to the defendant because of the strength of the evidence against him was held to have been disqualifĳied from going on to try him and to convict him on that evidence. In other cases, such as Piersack v. Belgium2 and de Cubber v. Belgium,3 lawyers who have been employed in the prosecution offfĳice at the time of the investigation or indictment of the defendant have been disqualifĳied from sitting at his trial. As a matter of logic a judge who decides that there is a prima facie case or who directs a prosecution or performs (as here) both functions is perfectly capable, having heard all the evidence, of deciding that the prosecution has not come up to proof. But appearances are important and to avoid any perception of bias it is desirable, other than in summary proceedings dealing with contempts in the face of the court, for the contempt trial to be conducted by a judge who is not a party to the direction to prosecute. The power to assign such a judge, from another chamber, to the contempt trial is provided by Rule 77(D), viz. “Proceedings under sub-Rule (C)(iii) may be assigned to be heard by a single judge of the Trial Chamber or a Trial Chamber.”

1 Hauschildt v. Denmark, Judgment, 27 May 1981, Series A, No. 43. 2 Piersack v. Belgium, Judgment, 1st October 1982, Series A, No. 53. 3 Cubber v. Belgium, Judgment, 26 October 1984, Series A, No. 86. 1002 part iii

12. Although the phrasing of Rule 77(D) is elliptical, it permits the Trial Chamber which directs a prosecution pursuant to Rule 77(C)(iii) to assign the contempt trial to a single judge of that chamber, or to a single judge of another chamber. In the latter case, it is appropriate for the trial judge to be appointed by the presiding judge of that other chamber. In the event, the order of 29th April assigned the contempt trial to Trial Chamber 1, and the presiding judge of Trial Chamber 1 designated one of its members, Judge Boutet, to hear the trial of Mr. Samura. 13. Although Rule 77(C)(iii) empowers the Trial Chamber to “direct the independent counsel to prosecute the matter,” that counsel possesses in the course of conducting the case complete professional independence and is in no sense under the supervision or direction of the Trial Chamber in performing his duties. He is appointed in place of the court’s own prosecutor, who would be conflicted and embarrassed if called upon to prosecute members of defence teams or possibly of his own offfĳice who have been accused of contempt. The independent prosecutor may decide, on reviewing the case again or on receiving further information, that the evidence is insufffĳicient to sustain a conviction and that the case should therefore be dropped. He may decide that a plea bargain is appropriate or that the defendant’s ill health justifĳies a discontinuance. The Trial Chamber directs the independent counsel “to prosecute the matter,” but does not constrain or control the exercise of his professional judgement in the course of that prosecution. It has no further function in a case that is assigned to a judge of another chamber, unless the prosecutor it appoints refuses to act or applies to be replaced.

Standing of the Would-be Appellants 14. The decision of the Trial Chamber on 29th April did not directly afffect the 3 AFRC defendants who seek to appeal it. The orders made by the court did not apply to them or even mention them, but were directed to the instigation of proceedings against Mr. Samura and the four women. However, the decision was headed as a decision delivered in their case, i.e. in Prosecutor v. Brima, Kamara and Kanu. This was inappropriate and incorrect: the decision should have been headed and subsequently reported as a separate case, e.g. Re a Decision to Prosecution Samura and ors for Contempt. The mistaken heading lends fĳirst-blush support to the defendants’ claim that they have standing to appeal it. 15. Furthermore, to the decision on 29th April were appended two Orders in Lieu Of Indictment, one relating to Samura and the other to the four women. Each order contained the charge and short particulars thereof, which was all that was necessary to satisfy Rule 77(C)(iii). Regrettably, the Order also contained an unnecessary “case summary” – several pages of very detailed allegations against the contempt defendants. It is not clear whether these summaries were drafted by the independent prosecutor or by the court itself, but their attachment as part of the court order gave the impression that they carried the endorsement of the interlocutory decisions – appeals chamber 1003 court that made that order. There is no warrant in Rule 77(C)(iii) for including a case summary in the Order in Lieu of Indictment and these detailed allegations should not in my view have been included. It is not appropriate for the court, in directing a prosecution, to prepare or seem to endorse a prosecution case summary. It should have been left to the independent prosecutor to prepare that summary, for disclosure to the contempt defendants and their counsel in due course. 16. The problems caused by appending a case summary to the court order soon became apparent. The Press Offfĳice of the Special Court issued a two page press release on 3rd May, “Trial Chamber issues order to indict fĳive people for contempt of court.” It is the duty of the press offfĳice to notify the public and the media about signifĳicant developments in the court and it was properly within that duty to release details of the new contempt indictments and their particulars. This press release therefore reported in some detail the allegations in the case summaries, as if they were allegations by the Trial Chamber itself, e.g. “The order in lieu of an indictment alleges…” The impression that must have been given to readers was that these allegations were being authoritatively made against the contempt defendants by the three Trial Chamber judges. There was no explanation that the allegations were untested and at this stage had been made only in hearsay statements. There was no balancing comment by or on behalf of the contempt defendants or the defendants in the AFRC trial. The Press Offfĳice was not in any way at fault: it fairly reported what was in the court order. But the regrettable consequence of including the case summaries in the order was nonetheless to put out, under the imprimatur of the Special Court itself, a set of one-sided allegations which appeared to have been endorsed by the Trial Chamber. 17. This mistaken impression would not have prejudiced the contempt defendants at their trial before a judge, but it would obviously afffect public perceptions of them and indirectly afffect the AFRC defendants whose wives were among those whose prosecution was being announced with such apparently incriminating detail. This should not have happened and it may have contributed to a sense of grievance felt by the accused and their counsel, who point to the press release in this appeal to support their argument that they have a legitimate interest in bringing it. But a “legitimate interest,” although it may provide standing in public law to challenge an administrative decision, is not sufffĳicient for standing to appeal a decision to prosecute for contempt. That can only be accorded to persons who are the subject of that decision – i.e. the contempt defendants. For that reason alone, and notwithstanding my concern about publicity given to the case summary, the defendants have no standing to appeal a decision to prosecute third parties.

Jurisdiction 18. The decision itself is not amenable to appeal, in my view for the reasons given in paras. 23 to 31 of the court’s decision in the First Contempt Appeal. 1004 part iii

Rule 77 is a coherent and chronological code for investigating and if need be prosecuting contempt allegations and then appealing the verdict. On a purposive interpretation, the right of appeal given by sub-Rule J only arises after a conviction or an acquittal – in other words after a fĳinal decision and not in relation to any interlocutory decision taken by a court at any earlier stage in the proceedings. It does not arise, even if leave is obtained under Rule 73(B). (In this case, no such leave was obtained).

Merits 19. There is, in any event, no basis for impugning the Trial Chamber’s decision to direct a prosecution in these cases. It had ample reason to believe that a contempt had been committed. It appointed a special counsel, received his report, decided (as had he) that there were sufffĳicient grounds to prosecute and exercised its discretion accordingly. This is an initiating process in which others should have no “right” to intervene – including the court prosecutor, the defence offfĳice, the potential contempt defendants and the accused men on trial for war crimes. The report of the independent counsel is a confĳidential document for consideration only by the Trial Chamber: it is not to be made available (and was not made available) either to the court prosecutor or to the defence offfĳice. The report may be disclosed to the contempt defendants in due course if they request it, and if it would assist their trial preparation. But the decision to initiate a prosecution on the basis of the report cannot itself be made the subject of any appeal. The remedy for mistaken initiation of a prosecution is provided by the duty of the Trial Court to acquit, once a reasonable doubt has been raised about the sufffĳiciency of the proof offfered at trial by the independent prosecutor. 20. The three short grounds of appeal against the order of 29th April are devoid of merit. The fĳirst ground asserts that the order should not have been made unless and until the independent counsel’s report was disclosed to the defence in the AFRC trial so that they could comment upon it. I have explained that it is inappropriate for any party – the court prosecutor included – to possess or comment upon the independent counsel’s report to the court at the stage when that court is considering whether to authorise a prosecution. 21. The second ground is that the decision should not have been made until an Appeal Chamber had ruled in an appeal brought (incompetently, as it happens) against the decision to appoint an independent counsel. But there is no reason why even a competent appeal should cause a stay in proceedings, especially in a case of contempt which involves third parties. Otherwise, given the part-time operation of this Appeal Chamber, this would delay both trials and ancillary contempt proceedings for several months. interlocutory decisions – appeals chamber 1005

22. The third ground is that no reasons were given for the decision to prosecute. Nor should they have been given: any authority which authorises a prosecution should be astute to avoid prejudicing it by announcing reasons – these will be provided in due course to the defendants by the case summary and to the public by the testimony of prosecution witnesses at the trial. One criticism of the Trial Chamber for annexing the case summary to the order in lieu of indictment is that it gave unnecessary publicity to what could be perceived as its reasons for ordering the prosecution. A decision to prosecute must speak for itself: the sufffĳiciency of the grounds for it must be tested fĳirst at trial and not by premature appeal to this court. 23. Neither in this attempted appeal nor the last have the applicants challenged the basic fact that a court order was in force preventing the disclosure of the name of witness TFI-023. There is no reference to a specifĳic order in the decision of 29th April or in the case summary, other than by a footnote reference to decisions by another trial chamber in another trial. (See footnotes 4 and 23 to the decision of 29th April). The prosecution had applied to the Presiding Judge of Trial Chamber II to renew protective measures applied to certain witnesses by Trial Chamber I, but on 3rd February 2005 withdrew its application at the invitation of the judge since the view was taken, by the court and all defence counsel, that Rule 75F rendered a new application redundant. The AFRC defendants might be estopped from challenging the correction of this interpretation of Rule 75(F), since they concurred in it, but that concurrence would not afffect any of the contempt defendants. If there is any point to be taken on this interpretation, it can be raised by a convicted contemnor who pursues competent appeal to this court under Rule 77(J).

Conclusion 24. I concur in the chambers decision that it has no jurisdiction to entertain an interlocutory appeal from a Trial Chamber decision to initiate a prosecution for contempt under Rule 77(C)(iii), and that these defendants have no standing to appeal because the order did not apply to them. 25. I hereby authorise Court Management to serve this Separate and Concurring Opinion during the offfĳicial recess period of the Special Court. Done at Freetown this day 17th day of August 2005.

Justice Geofffrey Robertson

THE APPEALS CHAMBER

Before: Justice Raja Fernando, Presiding Justice Emmanuel O. Ayoola Justice Geofffrey Robertson, QC Registrar: Mr. Lovemore Munlo, Interim Registrar Date: 24 November 2005 PROSECUTOR Against Alex Tamba Brima Brima Bazzy Kamara Santigie Borbor Kanu (Case No.SCSL-2004-16-AR73)

ORDER ON THE APPOINTMENT OF AMICUS CURIAE

Office of the Prosecutor: Defence Counsel for Alex Tamba Brima: Christopher Staker Glenna Thompson Luc Côté Kojo Graham Defence Counsel for Brima Bazzy Kamara: Andrew Daniels Pa. Momo Fofana Defence Counsel for Santigie Borbor Kanu: Geert-Jan Knoops Carry Knoops-Hamburger Abibola E Manley-Spain 1008 part iii

THE APPEALS CHAMBER (“Appeals Chamber”) of the Special Court for Sierra Leone (“Special Court”) composed of Justice Raja Fernando, Presiding Judge, Justice Emmanuel Ayoola and Justice Geofffrey Robertson, QC; SEIZED of the Prosecution Appeal against the Decision on Oral Application for Witness TF1-150 to Testify Without Being Compelled to Answer Questions on Grounds of Confĳidentiality fĳiled on 19 October 2005 (the “Appeal”) pursuant to 73(B) of the Rules of Procedure and Evidence of the Special Court (“Rules”); CONSIDERING the Joint Defence Response to Prosecution Appeal against the Decision on Oral Application for Witness TF1-150 to Testify Without Being Compelled to Answer Questions on Grounds of Confĳidentiality fĳiled on 27 October 2005 (the “Response”); CONSIDERING the Prosecution Reply to Joint Defence Response to Prosecution Appeal against the Decision on Oral Application for Witness TF1-150 to Testify Without Being Compelled to Answer Questions on Grounds of Confĳidentiality fĳiled on 31 October 2005 (the “Reply”); NOTING that, pursuant to Article 1(2) of the Practice Direction on Filing of Amicus Curiae Applications pursuant to Rule 74 of the Rules of Procedure and Evidence of the Special Court for Sierra Leone (the “Practice Direction on Amicus Curiae”), adopted on 20 October 2004, “[a]t its discretion, a Chamber may invite an amicus curiae submission from a particular State, organization or person, in which case no application for leave is required”; BEING INFORMED of the intention of the Non-Governmental Organization “Human Rights Watch” (“Human Rights Watch”) to fĳile an amicus curiae brief in the current case; CONSIDERING that there is a real reason to believe that an amicus curiae brief by Human Rights Watch providing material that is not already before the Appeals Chamber will assist it in reaching its decision on the issues raised by the present Appeal; PURSUANT TO RULE 74 OF THE RULES AND ARTICLE 1(2) OF THE PRACTICE DIRECTION ON AMICUS CURIAE HEREBY APPOINTS Human Rights Watch as amicus curiae, and ORDERS Human Rights Watch to fĳile a written brief no later than 15 December 2005 with any responses by the Parties to be fĳiled within two weeks thereafter. Done at Freetown this day 24th of November 2005. THE APPEALS CHAMBER

Before: Justice Raja Fernando, Presiding Justice Emmanuel O. Ayoola Justice George Gelaga King Justice Geofffrey Robertson, QC Justice Renate Winter Interim Registrar: Mr. Lovemore Munlo, SC Date: 28 November 2005 PROSECUTOR Against Alex Tamba Brima Brima Bazzy Kamara Santigie Borbor Kanu (Case No.SCSL-2004-16-AR73)

ORDER ON THE APPOINTMENT OF AMICUS CURIAE

Applicant: United Nations High Commissioner for Human Rights Office of the Prosecutor: Defence Counsel for Brima: Christopher Staker Glenna Thompson, Kojo Graham Luc Côté Defence Counsel for Kamara: Andrew Daniels, Pa. Momo Fofana

Defence Counsel for Kanu: Geert-Jan Knoops, Carry Knoops-Hamburger Abibola E Manley-Spain 1010 part iii

THE APPEALS CHAMBER (“Appeals Chamber”) of the Special Court for Sierra Leone (“Special Court”) composed of Justice Raja Fernando, Presiding Judge, Justice Emmanuel Ayoola, Justice George Gelega King, Justice Geofffrey Robertson, QC and Justice Renate Winter; SEIZED of the Prosecution Appeal against the Decision on Oral Application for Witness TF1-150 to Testify Without Being Compelled to Answer Questions on Grounds of Confĳidentiality fĳiled on 19 October 2005 (the “Appeal”) pursuant to 73(B) of the Rules of Procedure and Evidence of the Special Court (“Rules”); ALSO SEIZED of the Application of United Nations High Commissioner for Human Rights for Leave to Make Written Submissions as Amicus Curiae in Prosecution Appeal Against Decision on Oral Application for Witness TF1-150 to Testify Without Being Compelled to Answer Questions on Grounds of Confĳidentiality fĳiled on 24 November 2005 (the “Application”) pursuant to Rule 74 of the Rules; NOTING that, pursuant to Article 1(1) of the Practice Direction on Filing of Amicus Curiae Applications pursuant to Rule 74 of the Rules of Procedure and Evidence of the Special Court for Sierra Leone (the “Practice Direction on Amicus Curiae”), adopted on 20 October 2004, “[a]pplications for leave to make written or oral submissions as amicus curiae may be submitted at the applicant’s own initiative or in response to a general invitation from a Chamber”; CONSIDERING that there is a real reason to believe that an amicus curiae brief by the United Nations High Commissioner for Human Rights providing material that is not already before the Appeals Chamber will assist it in reaching its decision on the issues raised by the present Appeal; PURSUANT TO RULE 74 OF THE RULES AND ARTICLE 1(2) OF THE PRACTICE DIRECTION ON AMICUS CURIAE HEREBY APPOINTS the United Nations High Commissioner for Human Rights as amicus curiae, and ORDERS the United Nations High Commissioner for Human Rights to fĳile a written brief no later than 16 December 2005 with any responses by the Parties to be fĳiled within two weeks thereafter. Done at Freetown this day 28th of November 2005. THE APPEALS CHAMBER

Before: Justice Raja Fernando, Presiding Justice Emmanuel O. Ayoola Justice George Gelaga King Justice Geofffrey Robertson, QC Justice Renate Winter Interim Registrar: Mr. Lovemore Munlo, SC Date: 02 December 2005 PROSECUTOR Against Alex Tamba Brima Brima Bazzy Kamara Santigie Borbor Kanu (Case No.SCSL-2004-16-AR73)

ORDER ON THE APPOINTMENT OF AMICUS CURIAE

Amicus Curiae: Amnesty International Office of the Prosecutor: Defence Counsel for Brima: Christopher Staker, Luc Côté Glenna Thompson, Kojo Graham Defence Counsel for Kamara: Andrew Daniels, Pa. Momo Fofana Defence Counsel for Kanu: Geert-Jan Knoops, Carry Knoops-Hamburger Abibola E Manley-Spain 1012 part iii

Before: Justice Raja Fernando, Presiding Justice Emmanuel O. Ayoola Justice George Gelaga King Justice Geofffrey Robertson, QC Justice Renate Winter Interim Registrar: Mr. Lovemore Munlo, SC Date: 05 December 2005 PROSECUTOR Against Alex Tamba Brima Brima Bazzy Kamara Santigie Borbor Kanu (Case No.SCSL-2004-16-AR73)

CORRIGENDUM TO THE ORDER ON THE APPOINTMENT OF AMICUS CURIAE

Before: Justice Raja Fernando, Presiding Justice Emmanuel O. Ayoola Justice George Gelaga King Justice Geofffrey Robertson, QC Justice Renate Winter Interim Registrar: Mr. Lovemore Munlo, SC Date: 8 December 2005 PROSECUTOR Against Alex Tamba Brima Brima Bazzy Kamara Santigie Borbor Kanu (Case No.SCSL-2004-16-AR73)

DECISION ON BRIMA-KAMARA DEFENCE APPEAL MOTION AGAINST TRIAL CHAMBER II MAJORITY DECISION ON EXTREMELY URGENT CONFIDENTIAL JOINT MOTION FOR THE RE-APPOINTMENT OF KEVIN METZGER AND WILBERT HARRIS AS LEAD COUNSEL FOR ALEX TAMBA BRIMA AND BRIMA BAZZY KAMARA

First Respondent: Court Appointed Counsel for Alex The Registrar Tamba Brima: Kojo Graham Glenna Thompson Second Respondent: Court Appointed Counsel for Brima The Principal Defender Bazzy Kamara: Andrew K. Daniels Mohammed Pa-Momo Fofanah 1016 part iii

THE APPEALS CHAMBER (“Appeals Chamber”) of the Special Court for Sierra Leone (“Special Court”) composed of Justice Raja Fernando, Presiding Judge, Justice Emmanuel Ayoola, Justice George Gelaga-King, Justice Geofffrey Robertson and Justice Renate Winter; BEING SEISED OF “Brima-Kamara Defence Notice of Appeal” and of “Brima- Kamara Defence Appeal Motion Pursuant to Article II of the Practice direction for Certain Appeals Before the Special Court” fĳiled on 2 September 2005 on behalf of Alex Tamba Brima and Brima Bazzy Kamara (the “Appeal”) pursuant to Rule 73(B) of the Rules of Procedure and Evidence of the Special Court (“Rules”); CONSIDERING the “Defence Offfĳice Response to Brima-Kamara Defence Appeal Motion Pursuant to Article II of the Practice Direction for Certain Appeals Before the Special Court” fĳiled by the Defence Offfĳice on 9 September 2005 (the “Defence Offfĳice Response”) and its Corrigendum of 13 September 2005; CONSIDERING the “1st Respondent’s Response to the Interlocutory Appeal of Alex Tamba Brima and Brima Bazzy Kamara” fĳiled by the Registrar on 12 September 2005 (the “Registrar’s Response”); CONSIDERING the “First Respondent’s Additional Motion to the Interlocutory Appeal of Alex Tamba Brima and Brima Bazzy Kamara and the Response by the Principal Defender (the Second Respondent)” fĳiled by the Registrar on 13 September 2005 (the “Registrar’s Additional Motion”); CONSIDERING the “Second Respondent’s Response to the First Respondent’s Additional Motion to the Interlocutory Appeal of Alex Tamba Brima and Brima Bazzy Kamara and the Response by the Principal Defender (Second Respondent)” fĳiled by the Principal Defender on 16 September 2005 (the “Principal Defender’s Response to the Registrar’s Additional Motion”); CONSIDERING “Brima-Kamara Joint Defence Reply to 1st Respondent’s Response to the Interlocutory Appeal of Alex Tamba Brima and Brima Bazzy Kamara” fĳiled on the behalf of Alex Tamba Brima and Brima Bazzy Kamara on 16 September 2005 (the “Reply”); NOTING the “Decision on the Extremely Urgent Confĳidential Joint Motion for the Re-Appointment of Kevin Metzger and Wilbert Harris as Lead Counsel for Alex Tamba Brima and Brima Bazzy Kamara and Decision on Cross Motion by Deputy Principal Defender to Trial Chamber II for Clarifĳication of its Oral Order of 12 May 2005” rendered by Trial Chamber II on 9 June 2005 (the “Impugned Decision”); NOTING the “Decision on Brima-Kamara Application for Leave to Appeal from Decision on the Re-Appointment of Kevin Metzger and Wilbert Harris as Lead Counsel” rendered by Trial Chamber II on 5 August 2005 (the “Decision Granting Leave to Appeal the Impugned Decision”); interlocutory decisions – appeals chamber 1017

NOW DETERMINES THIS APPEAL ON THE BASIS OF THE WRITTEN SUBMISSIONS OF THE PARTIES

Procedural History of This Appeal

1. This is an appeal by Alex Tamba Brima and Brima Bazzy Kamara (“the Appellants”) against the Impugned Decision in which their motion for the reassignment of Kevin Metzger and Wilbert Harris as their Lead Counsel was dismissed. 2. The procedural history in this matter is set out in the Impugned Decision and does not need to be repeated here in detail. The following summary is sufffĳicient for present purposes. By an oral order of 12 May 20051 and a written decision fĳiled on 20 May 2005, the Trial Chamber permitted former Lead Counsel for the Appellants to withdraw from the case to which they had been assigned on the grounds of the threats to former Lead Counsel and their families.2 By a Motion fĳiled on 24 May 2005, the Appellants sought an Order: (i) that the Registrar re- assign former Lead Counsel; (ii) to the Acting Principal Defender to immediately enter into a legal services contract with former Lead Counsel; (iii) that Justices who re-confĳirmed the order not to re-appoint be recused from hearing he motion; (iv) declaring as null and void the decision of the Registrar not to re-assign Counsel; and (v) any other relief deemed fĳit and appropriate.3 Trial Chamber II dismissed the Motion to Re-appoint fĳinding that it was frivolous and vexatious. On 5 August, the Trial Chamber allowed an appeal by the Appellants and they fĳiled notice of appeal on 2 September 2005.

Noting The Submissions of The Parties

3. The Impugned Decision dismissed the Motion fĳiled by the Defence for Brima and Kamara (the “Appellants”) on 24 May 2005 for the re-appointment of their respective Lead Counsel as “frivolous and vexatious” and refused the following relief prayed for, namely (a) an Order to the Registrar to ensure that Counsel Metzger and Harris are re-assigned as Lead Counsel for Brima and Kamara; (b) an

1 Prosecutor v. Brima, Kamara, Kanu, T. 12 May 2005, 2.00 p.m., lines 13-16 (“Oral Order Permitting Withdrawal”). 2 Decision on the Confĳidential Application for Withdrawal by Counsel for Brima and Kamara and on the Request for Further Representation by Counsel for Kanu, 20 May 2005. 3 Extremely Urgent Confĳidential Joint Motion for the Re-Appointment of Kevin Metzger and Wilbert Harris as Former Lead Counsel for Alex Tamba Brima and Brima Bazzy Kamara, Pursuant to Articles 17(4)(C) and 17(4)(D) of the Statute of the Special Court for Sierra Leone and Rule 54 of the Rules of Procedure and Evidence and the Inherent Jurisdiction of the Court, fĳiled on 24 May 2005 (“Motion to Re-Appoint”). 1018 part iii

Order to the Acting Principal Defender to immediately enter into a legal services contract with the two Counsel; (c) that the Judges who reconsidered not to re- appoint the two Counsel as indicated in a letter from the Registrar’s Legal Adviser recuse themselves from hearing the Motion; (d) an Order to declare as null and void the decision of the Registrar not to re-assign Counsel which was made without legal or just cause; (e) a public and open court hearing of the Motion and Cross Motion fĳiled by the Principal Defender. The Appeal Motion

4. After submitting that the current appeal fully fulfĳils the requirements of the Practice Direction for Certain Appeals, the Defence raises the following grounds of appeal: (i) The Defence refers to a decision of the Registrar refusing the re- appointment of former Lead Counsel and submits that it amounted to a breach of the right of the Appellants to choose their own Counsel. The Defence submits that the Registrar might only refuse the Appellants’ wishes regarding the appointment of their Counsel on reasonable and valid grounds, which were lacking in the current case. The Defence further submits that the Trial Chamber had no power or authority to interfere in the statutory right of an accused to choose his or her assigned Counsel by giving directives that are contrary to that choice to the Registrar. (ii) The Defence challenges Trial Chamber II decision not to exercise its inherent jurisdiction to judicially review the administrative actions of the Registrar and the Acting Principal Defender. According to the Defence, the Trial chamber erred in law by stating that it had no power to order the Acting Principal Defender to enter into a Legal Services Contract with the Counsel. (iii) The Defence further challenges the denial of an order for a public hearing on its application. The Defence submits that Rule 73(A) gives the Trial Chamber the power and discretion to hear motions in open court and that the Trial Chamber misinterpreted this Rule in a way which erodes the rights of the Appellants under Article 17 of the Statute. (iv) The Defence submits that the Trial Chamber erroneously considered its Extremely Urgent Confĳidential Joint Motion for the Re- Appointment of Kevin Metzger and Wilbert Harris as Lead Counsel for Alex Tamba Brima and Brima Bazzy Kamara of 24 May 2005 (the “Motion to Re-Appoint”) as a Motion to Withdraw Counsel under Rule 45(E), and therefore dismissed it as “frivolous and vexatious,” when it was fĳiled pursuant to Rule 54, Article 17(4)(d) and the inherent power of the Court. interlocutory decisions – appeals chamber 1019

(v) The Defence further submits that that the Trial Chamber erred in law and/or in fact considering the Motion to Re-Appoint as a continuation or extension of the earlier application to Withdraw Counsel under Rule 45(E) and that this confusion prevented it from considering the merits of the Motion to Re-Appoint. (vi) The Defence submits that the Trial chamber erred in law and/or in fact by considering that former Lead Counsel were not eligible to be reappointed since they were no longer on the list of qualifĳied Counsel required to be kept under Rule 45(C), when their removal was efffected by the Registrar when the Motion to Re-Appoint was pending judicial consideration by the Trial Chamber. (vii) Finally, the Defence submits that the Trial Chamber erred in law and/or in fact by ruling that there were no grounds for submitting that any Judge recuse himself or herself, when, according to Justice Sebutinde’s observations in her dissenting opinion, the two other Justices expressed their preference or otherwise for Counsel, thereby giving an impression of partiality, bias and unsolicited and unwarranted interference with the statutory rights of the Appellants. 5. For the foregoing reasons, the Defence prays the Appeals Chamber to (a) make a declaration that refusal of the Registrar and the Trial chamber to re- appoint Counsel Metzger and Harris as Lead Counsel amounted to a violation of the statutory rights of the Accused under Article 17(4)(d) of the statute; (b) make a declaration that the Registrar’s decision against the re-assignment of Counsel Metzger and Harris and the removal of their names from the list of eligible Counsel was ultra vires and null and void; (c) order the reinstatement of Counsel Metzger and Harris on the list of qualifĳied counsel; (d) declare that the Trial Chamber has both the inherent jurisdiction and the power to review the Registrar’s decision not to re-assign Counsel Metzger and Harris, as well as the Registrar’s decision to remove their names from the list of qualifĳied Counsel; (e) declare that Justices Doherty and Lussick, having advised the Registrar against the re-appointment of the two Counsel, should have recused themselves from hearing the Motion on their re-appointment; and (f) declare that the Trial Chamber erred in law by not considering the Motion before it on its merits as a separate and distinct application. Defence Office’s Response

6. The Defence Offfĳice supports the ground tendered by the Defence in its Appeal by adding the following submissions: (i) On the fĳirst ground of appeal, the Defence Offfĳice submits that, although the right of the Appellants to Counsel of his own choosing is not absolute, if 1020 part iii

the withdrawn Counsel fulfĳil the criteria for eligibility to be placed on the list of qualifĳied Counsel, have a good rapport with their client, and are knowl- edgeable about their case, they should, in the interest of justice, have been re-assigned considering the stage at which the case has reached. (ii) On the Second Ground of Appeal, the Defence Offfĳice submits that the Trial Chamber could, as did Trial chamber I in a former Decision in the Brima case,4 have exercised its inherent jurisdiction to entertain a motion on the ground of denial of request for assignment of Counsel and to prevent a violation of the rights of the accused. (iii) On the Third Ground of Appeal, the Defence Offfĳice admits that the motion is not a hearing per se, but submits that it was brought during the process of trial and fĳits within the precincts of Article 17(2) of the Statute. The Defence Offfĳice further submits that the application for a public hearing was made upon the discovery that the Registry had de-listed both Lead Counsel from the roll of eligible Counsel before the Special Court, and that the Trial Chamber erroneously considered that the request for public hearing should not have been made within the Reply, when it did not constitute a claiming for additional relief. The Defence Offfĳice submits that the Article 17(2)(d) guarantee of the right to a public hearing should prevail Rule 73(A) provision that the Trial Chamber shall rule interlocutory Motions based solely on the written submissions of the parties unless it is otherwise decided. (iv) On the Fourth and Fifth Grounds of Appeal, the Defence Offfĳice submits that the Trial Chamber erroneously considered the Motion to Re-Appoint as a Request for review of its earlier decision on Motion for Withdrawal fĳiled by their former Counsel and, consequently, had no regard to the request of the Accused to have their withdrawn Counsel re-assigned, which it dismissed as “vexatious and frivolous” and without bona fĳide motive. The Defence Offfĳice emphasises that the Accused genuinely wanted their Lead Counsel to be reappointed and that the Motion was fĳiled under Rule 54 and 73(a) of the Rules and the inherent jurisdiction of the Court. (v) On the Sixth Ground of Appeal, the Defence Offfĳice challenges the Trial Chamber’s fĳinding that the Registrar has the power to remove Counsel from the list of eligible Counsel on the basis of “security concerns” and stresses that the role of assignment, withdrawal and replacement of Counsel is essentially a role and function of the Principal Defender. The Defence Offfĳice further submits that the “security concerns” on which the removal was based were not investigated by the Registrar before taking its decision and are not even prescribed by the Rules or the Directive on the Assignment of Counsel.

4 Prosecutor v. Brima, Case No. SCSL-2003-06-PT, Decision on Applicant’s Motion Against Denial by the Acting Principal Defender to Enter a Legal services Contract for the Assignment of Counsel, 6 May 2004 (the “6 May 2004 Decision in the Brima case”). interlocutory decisions – appeals chamber 1021

The Defence Offfĳice notes that the Acting Registrar requested the Deputy Principal Defender to strike Counsel offf the list and that his request was declined on the grounds that the matter was sub-judice. The Defence Offfĳice thus emphasises that the Lead Counsel were struck offf the list by the Acting Registrar without the consent and despite the legal advice from the Defence Offfĳice. (vi) On the Seventh Ground of Appeal, the Defence Offfĳice supports the Appeal on the ground of extra judicial interference in the re-appointment of Counsel by Justices Doherty and Lussick. 7. In addition to the above Grounds of Appeal, the Defence Offfĳice adds the following “Additional Grounds and Arguments”: (i) Firstly, the Defence Offfĳice submits that the Trial Chamber erred in endorsing the general submissions of the Registrar concerning his administrative role and the lack of statutory authority of the Principal Defender. The Defence Offfĳice submits that it was mandated under Rule 45 and vested with legal duties to assign Counsel, to compile and maintain the list of qualifĳied Counsel under Rule 45(C), to place Counsel on the List if they meet the criteria stipulated in Rule 45(C) and to deal with matters pertaining to their removal or withdrawal. It further submits that, while the Registrar is expected to exercise administrative and fĳinancial oversight over it and to give its logistical and other administrative support, he should not assume the function of the Defence Offfĳice or veto the decisions of its offfĳicials made in pursuance of its mandate. The Defence Offfĳice emphasises that it should exercise its functions independently of the Registrar and that, although a consultative process should be encouraged in practice, any attempt to interfere with these functions would be tantamount to an infringement upon the rights of the Accused. The Defence Offfĳice submits that, in the absence of the Principal Defender, it relied on the Deputy Principal Defender to carry on her task in an acting capacity, without this provisional vacuum becoming an occasion for the Registrar to arbitrarily take over the duties of the Defence Offfĳice. (ii) The Defence Offfĳice challenges the Trial Chamber’s fĳinding that the Deputy Principal Defender went out of her way to undermine an order of the Trial Chamber or was unwilling to do her job or to follow the directions of the Registrar. (iii) The Defence Offfĳice submits that the consultation between the Registrar and the Trial Chamber, which was conceived to be under Rule 33, was not notifĳied to the Appellants nor their Counsel, when the matter was very crucial to their rights. The Defence Offfĳice relies on Justice Sebutinde’s Dissenting Opinion to challenge the Registrar’s submission that the representations he made to the Chamber were to clarify and inform himself of the view of the Trial Chamber on the order it made on the withdrawal of Counsel, when the issue at stake was not the withdrawal of Counsel but their re-assignment and, 1022 part iii

had it been the withdrawal, there was then no need to approach the Trial Chamber. (iv) Finally, the Defence Offfĳice submits that the Trial Chamber erroneously leaned to the Registrar’s submissions to the detriment of fairness, without elaborating on the applicability of the “reasonable and valid grounds” test to satisfy for denying the Appellants’ request to have their Counsel reassigned, and without considering that the role of the Registrar to assign Counsel before the ICTR and ICTY is parallel to that of the Principal Defender before the Special Court. 8. In conclusion, the Defence Offfĳice supports the Relief sought by the Defence in the Appeal Motion and requests the Appeals Chamber to give direction on the role of the Defence Offfĳice in view of its Mandate pursuant to Rule 45 and its interaction with the Registrar with regard to the assignment and re-assignment of Lead Counsel for the Appellants.

Registrar’s Response

9. The Registrar opposes all the Grounds of Appeal, for the following reasons: (i) On the First Ground of Appeal, the Registrar supports the fĳinding made by the Impugned Decision that the Appellants have no absolute right to Counsel of their choosing and refers to the fĳinding of the Oral Order Permitting Withdrawal of 12 May 2005 on the application for withdrawal of Counsel that “Lead Counsel with their present difffĳiculties would not be capable of acting in the best interests of their clients.” He further refers to the fact that both Lead Counsel applied to withdraw from the trial on the basis that they were not receiving full instructions from their clients and that they had received unspecifĳied threats; this application was granted by the Trial Chamber on the basis that Counsel were not able to represent their clients to the best of their ability. The Registrar further submits that the Principal Defender acted reasonably within his powers under Rule 45(C) in refusing the request for the re-appointment of Counsel by the Appellants, particularly when there were no new circumstances. (ii) On the Second Ground of Appeal, the Registrar submits that the Trial Chamber does not have the power to force parties to enter into a contract, but can only order parties to enter negotiations to enter into a contract. The Registrar submits that although the Trial Chamber has power to review administrative decisions of the Registrar and the Principal Defender when it afffects the right of the Accused to a fair trial under Article 17(4)(d) of the Statute, all the Trial Chamber can do is order the Principal defender to enter negotiations for a contract, but not simply order him to enter a contract. interlocutory decisions – appeals chamber 1023

(iii) As regards the Third Ground of Appeal, the Registrar challenges the Defence assumption that the right to a hearing in open Court is absolute and submits that reasons must be presented to the Trial Chamber as to why there should be an open Court hearing. The Registrar further recalls that, as mentioned in the Impugned Decision, the application for a hearing in open court was made in the Defence Reply and, as such, gave no opportunity to the Respondents to present submissions. (iv) On the Fourth Ground of Appeal, the Registrar supports the fĳinding by the Impugned Decision that the application was confusing because of the unclear pleading of the Appellants who cannot now complain that the Trial Chamber did not consider the basis of their argument under Rule 54. (v) On the Fifth Ground of Appeal, the Registrar supports the fĳinding by the Impugned Decision that the Motion was a backdoor attempt to review the original order of the Trial Chamber permitting Counsel to withdraw and challenges the Defence assumption that the Motion to withdraw and the Motion to Re-Appoint were separate. (vi) On the Sixth Ground of Appeal, the Registrar submits that, after the Trial Chamber ordered the withdrawal of Counsel, the Acting Registrar decided to remove them from the list of qualifĳied Counsel on the basis of unresolved security concerns that Counsel had raised in their application to withdraw, without even trying to seek the assistance of the Registrar to deal with these security issues and when they expressly refused to disclose the sources of the alleged threats. The Registrar submits that he is entitled to act immediately upon his authority and discretion to seek the removal of Counsel from the List of Qualifĳied Counsel if their appointment raises concerns for the security of the court and the personnel within it. (vii) On the Seventh Ground of Appeal, the Registrar submits that there were no grounds upon which to seek the recusal of Judges of the Trial Chamber. The Registrar submits that, pursuant to Rule 33(B), he is entitled to make oral or written representations to Chambers on issues arising in the context of a specifĳic case which afffects or may afffect the implementing of judicial decisions and that this regulation implies that Chambers can make comments on the matters raised by the Registrar. The Registrar states that his representation to Chambers in the case was to clarify and inform himself of the views of the Trial Chamber on the 12 May 2005 Order and was pursuant to Rule 33(B). The Registrar further submits that it was the inherent power of the Trial Chamber, acting in order to ensure the Appellants right to a fair trial, to express its view on the attempt to have Counsel reassigned in contravention of the Order. 10. Consequently, the Registrar prays for the Appeals Chamber to dismiss the Appeal and refuse the relief sought. 1024 part iii

Registrar’s Additional Motion

11. As regards the “Additional Grounds and Arguments Submitted by the Defence Offfĳice” in its Response, the Registrar submits that the Defence Offfĳice is not entitled to plead additional grounds outside the grounds of appeal fĳiled by the Appellants, but could have sought leave to appeal and then fĳiled its own grounds of appeal. The Registrar submits that this use of pleadings prevented the Registrar from responding to the additional Grounds raised by the Defence Offfĳice. The Registrar submits that the Additional Grounds raised by the Defence Offfĳice should not be considered by the Appeals Chamber and, should the Appeals Chamber consider these additional Grounds, the Registrar requests that he be given the opportunity to fĳile a Response.

Defence Office’s Response to the Registrar’s Additional Motion

12. The Defence Offfĳice submits that the Registrar’s Additional Motion is not admissible for lack of legal basis because there was no original motion to which this Motion may be “additional,” and because the Registrar failed to provide the statutory basis or the Rules under which he was proceeding. The Defence Offfĳice challenges the Registrar’s characterisation of his statements as “Grounds of Appeal” and submits that its “additional grounds and arguments” were only intended to further articulate the Appellants Grounds 1, 5 and 6. As such, they should be construed in their very original literal meaning as valid points to raise in any appeal proceeding and any suggestive interpretation other than what the Defence Offfĳice intended them to mean is vigorously resisted. The Defence Offfĳice fĳinally submits that the Registrar has been accorded a fair opportunity to present his arguments in support of all the issues and matters pertaining to the Appeal and should not seek to enlarge that time frame and waste the resources of the Court.

Defence Reply

13. In Reply, the Defence makes the following submissions: (i) On the First Ground of Appeal, the Defence submits that it is disingenuous for the Registrar to deny the Appellants their choice of Counsel on the grounds that such a denial will ensure them an “efffective defence,” more so when the Appellants have unequivocally expressed their own choice or preference for Counsel. (ii) On the Second Ground of Appeal, the Defence submits that legal services contracts are more or less standard and leave little room for negotiation, apart for the composition of the team and the allocation of billable work interlocutory decisions – appeals chamber 1025

hours, and that the Trial Chamber has an inherent jurisdiction to give orders which will have the efffect of ensuring that a legal services contract is entered into between the Principal Defender and the Lead Counsel. (iii) On the Third Ground of Appeal, the Defence submits that the Trial Chamber erroneously dismissed the application for a public hearing on the ground that it was an application for additional relief, when its principal purpose was to ensure that the Appellants receive a fair and public trial. (iv) On the Fourth Ground of Appeal, the Defence submits that the Motion was properly made, inter alia, pursuant to Rule 54 and the inherent jurisdiction of the Trial Chamber and that non-submission of arguments under Rule 54 was not fatal to the Motion to Re-Appoint because of its inherent jurisdiction leg. (v) On the Fifth Ground of Appeal, the Defence emphasises that the Motion to withdraw was brought by the Counsel, when the Motion to Re-Appoint was brought by the Appellants. (vi) On the Sixth Ground of Appeal, the Defence submits that it is not within the power of the Registrar to de-list or remove the names of Counsel from the list of assigned Counsel without just and reasonable cause, especially when the matter is pending before the Trial Chamber and that the de-listing of Counsel was an improper and pre-emptive strike designed to present the Trial Chamber with a fait accompli in respect of the re-appointment of Counsel. (vii) On the Seventh Ground of Appeal, the Defence submits that by expressing their opinion against the re-appointment of the Lead Counsel, Justices Doherty and Lussick were not in a position to impartially consider the Motion to Re-Appoint and therefore aught to have properly recuse themselves. The Defence also challenges the Registrar’s submission that Justice Sebutinde’s Dissenting Opinion can not be relied upon because of the factual disputes among the Chamber. 14. The Defence fĳinally questions the legal validity of Justice Doherty’s Comment appended to a totally unrelated matter and takes issue with this procedure engendering a serious violation of the Accused rights to fair trial. The Defence submits that this “personal comment” was intended to unduly influence the Appeals Chamber and makes Justice Doherty a party to the Appeal, which she is not. The Defence therefore appeals the Appeals Chamber not to consider Justice Doherty’s Comment.

Decides as Follows

15. Before going to the merits, the Appeals Chamber deems it necessary to address several preliminary issues of procedure that are raised in this Appeal. 1026 part iii

Preliminary Issues

16. The preliminary issues raised in this Appeal relate to: a. Trial Chamber II’s Leave to Appeal the Impugned Decision; b. Time Limits for Filing Submissions in Appeal; c. Admissibility of New Grounds and/or New Requests Submitted in Response or Reply Before the Appeals Chamber; d. Admissibility of the Registrar’s Additional Motion.

First Preliminary Issue: Trial Chamber II’s Certifĳication to Appeal the Impugned Decision Summary of Issue 17. In Section II of its Appeal Motion, the Defence submits that it perfectly ful- fĳilled the requirements of the Practice Direction for Certain Appeals. Although the Appeals Chamber agrees with the submissions made by the Defence in support of this assertion, the question of admissibility of Appeals is not that simple and may raise problems from diffferent aspects. In particular, this Appeals Chamber, concurring on this aspect with the Appeals Chamber of the International Criminal Tribunal for Rwanda (“ICTR”),5 has already admitted and exercised its jurisdiction on the standards for certifĳication of appeal.6 These standards are set out in Rule 73(B) of the SCSL Rules, which provides, in particular that decisions rendered on interlocutory motions are “without interlocutory appeal,” but that leave to appeal may be granted “in exceptional circumstances” and “to avoid irreparable prejudice to a party” where the appellant applies for “within 3 days of the decision.”7 18. The Appeals Chamber notes that the Appellants application for leave to appeal was fĳiled on 14 July 20058 when the Impugned Decision is dated 9 June 2005. Although the Impugned Decision was appended a Dissenting Opinion fĳiled by Justice Sebutinde on 11 July 2005,9 it is the view of the Appeals Chamber that the application for leave to appeal was out-of-time pursuant to Rule 73(B).

5 ICTR, Prosecutor v. Nyiramasuhuko et al., Case No. 98-42-AR73.2, Decision on Pauline Nyiramasuhuko’s Appeal on the Admissibility of Evidence, 4 October 2004, para. 4-5. 6 Prosecutor v. Norman, Kondewa, Fofana, Case No. SCSL-2004-14-A, Decision on Amendment of the Consolidated Indictment, 16 May 2005, para. 43. 7 Rules 73(B) of the SCSL Rules. 8 Prosecutor v. Brima, Kamara, Kanu, Case No. SCSL-2004-14-T, Brima-Kanu Defence Application for Leave to Appeal from Decision on the Extremely Urgent Confĳidential Joint Motion for the Re-Appointment of Kevin Metzger and Wilbert Harris as Lead Counsel for Alex Tamba Brima and Brima Bazzy Kamara and Decision on Cross Motion by Deputy Principal Defender to Trial Chamber II for Clarifĳication of its Oral Order of 12 May 2005, 14 July 2005. 9 Prosecutor v. Brima, Kamara, Kanu, Case No. SCSL-2004-14-T, Dissenting Opinion of the Hon. Justice Julia Sebutinde from the Majority Decision on the Extremely Urgent Confĳidential Joint Motion for the Re-Appointment of Kevin Metzger and Wilbert Harris as Lead Counsel for Alex Tamba Brima and Brima Bazzy Kamara and Decision on Cross Motion by Deputy Principal Defender interlocutory decisions – appeals chamber 1027

Applicable Standards 19. Rule 73(B) of the SCSL Rules of Procedure and evidence provides that application for leave to appeal interlocutory decision shall be fĳiled within 3 days of the impugned decision. This Rule does not make any exception as regards the later fĳiling of concurring/dissenting opinions appended to the impugned decision. 20. The Appeals Chamber takes this opportunity to emphasise that Article 18 of the Statute provides that judgements – or decisions – shall be accompanied by a reasoned opinion, which in practice embodies the reasoning of the decision, to which separate or dissenting opinions may be appended. Article 18 does not provide a time diffference between the fĳiling of the Decision and the fĳiling of any concurring/dissenting opinion and the word “appended” clearly means that, in the spirit of the Statute, those opinions shall be fĳiled at the very same time as the majority decision. 21. This interpretation is consistent with this Appeals Chamber’s jurisprudence that the Statute and Rules of the Special Court should be interpreted according to the purpose of enabling “trials to proceed fairly, expeditiously and efffectively.”10 An expeditious determination of interlocutory motions would be favoured by a time-limit running from the date of the appealed decision itself. At the same time, to compel the parties to decide whether or not they should request leave to appeal without knowing the entire considerations having led to the decision and the reason why a judge of the bench may dissent from the majority decision, would be unfair and would jeopardise the efffective right of the parties to appeal interlocutory decisions. Although the applicant is not supposed to submit his/her grounds of appeal in his/her application for leave to appeal, concurring/dissenting opinions may bear on his/her decision to appeal the majority decision. The Appeals Chamber therefore fĳinds that those concurring/dissenting opinions shall be fĳiled together with the majority decision, in order to put the parties in a position to decide whether or not to apply for leave to appeal. 22. This interpretation is also confĳirmed by the common practice before other International Tribunals, which is to fĳile, at the same time, the decision and its concurring/dissenting opinions, without any delay. This Appeals Chamber has always followed this practice of other International Tribunals on the fĳiling of concurring/ dissenting opinions. 23. Both Trial Chambers of the Special Court for Sierra Leone have on occasions departed from this common practice and have fĳiled concurring/dissenting to Trial Chamber II for Clarifĳication of its Oral Order of 12 May 2005,” 11 July 2005 (“Justice Sebutinde’s Opinion Dissenting from the Impugned Decision”). 10 Prosecutor v. Norman, Fofana, Kondewa, Case No. SCSL-2004-14-A, Decision on Amendment of the Consolidated Indictment, 16 May 2005, para. 45; Prosecutor v. Brima, Kamara, Kanu, Case No. SCSL-2004-16-A, Decision on Defence Appeal Motion Pursuant to Rule 77(J) on Both the Imposition of Interim Measures and an Order Pursuant to Rule 77(C)(iii), 23 June 2005, para. 28. 1028 part iii opinions after the related decision is rendered. A review of the Trial Chambers practice shows that the time diffference between the fĳiling of the decisions and the concurring/dissenting opinions has sometimes reached several months, thereby delaying substantially the proceedings and casting uncertainty on the opinion of Judges on important legal issues. The Appeals Chamber notes that this practice does not occur in every case and that some opinions are fĳiled on the same day as the related decisions. 24. The Appeals Chamber deems it necessary to put an end to the regrettable practice that has developed in the Trial Chambers and clearly fĳinds that, pursuant to Article 18 of the Statute, the concurring/dissenting opinions that are not properly “appended” to the decision they relate to, and fĳiled together with it, are not admissible and shall be disregarded. 25. This being said, the 3-day time limit for fĳiling an application for leave to appeal under Rule 73(B) obviously runs from the date when the decision the applicant wishes to appeal is fĳiled, without any exception on the ground of the later fĳiling of a dissenting/concurring opinion being admissible. Application to the Current Case 26. In the instant case, the application for leave to appeal was fĳiled more than three days after the appealed Decision was rendered. This application was therefore out of time and should have been dismissed accordingly. However, taking into account the fact that neither of the Respondents have objected to the Applicants’ non-compliance with the Rules and the fact that the application for leave to appeal was fĳiled on credence of a wrong precedent established by Trial Chamber I,11 and in accordance with the practice of the ICTR Appeals Chamber,12 the Appeals Chamber considers that it is nevertheless properly seized of the Appeal. Second Preliminary Issue: Time Limits for Filing Submissions in Appeal 27. Another preliminary issue raised in this Appeal relates to the time limits for fĳiling submissions in appeal. Summary of Issue 28. On 5 August 2005 Trial Chamber II granted the Appellants leave to appeal pursuant to Rule 73(B) of the Rules of Procedure and Evidence of the Special Court (“the Rules”). On Friday 2 September 2005 at 5.13 p.m. the accused, Brima and Kamara, fĳiled a Notice of Appeal. On 5th September 2005 at 1.40 p.m., Court

11 Prosecutor v. Norman, Fofana, Kondewa, Case No. SCSL-2004-14-T, Decision on Prosecution Application for Leave to Appeal “Decision on the First Accused’s Motion for Service and Arraignment on the Consolidated Indictment,” 15 December 2004. 12 ICTR, Prosecutor v. Nyiramasuhuko et al., Case No. 98-42-AR73.2, Decision on Pauline Nyiramasuhuko’s Appeal on the Admissibility of Evidence, 4 October 2004, para. 4–5. interlocutory decisions – appeals chamber 1029

Management emailed the Notice of Appeal to the Registry and other parties including the Appeals Chamber. On 5th September 2005, the paper copy was stamped as a true copy by the Chief of Court Management. On Friday 9 September 2005 at 4.59 p.m., the Offfĳice of the Defence fĳiled a Response to the above Notice of Appeal. On Monday 12 September 2005 at 2.12 p.m., the Registrar (First Respondent) fĳiled his Response to the above Notice of Appeal. On Tuesday 13 September 2005 at 3.50 p.m., the Registrar fĳiled his Additional Motion to the Interlocutory Appeal. On 16 September 2005 at 12.00 noon, the Defence Offfĳice fĳiled its Response to the Registrar’s Additional Motion. On the same day at 2.43 p.m., the Defence fĳiled its Reply. 29. The time frame of those fĳilings raises an issue as regards to the time limits for fĳiling submissions in appeal, which manifestly need some clarifĳication and which the Appeals Chamber deems necessary to address. Applicable Standards 30. Rule 108(C) provides that “[i]n appeals pursuant to Rules 46, 65 and 73(B), the notice and grounds of appeal shall be fĳiled within 7 days of the receipt of the decision to grant leave.” This Rule is implemented by Article 11 of the Practice Direction for Certain Appeals before the Special Court (the “Practice Direction for Certain Appeals”)13 which provides that “[t]he appellant’s submissions based on the grounds of appeal shall be fĳiled on the same day as the Notice of Appeal….” 31. Article 12 of the Practice Direction on Certain Appeals, which also applies to leave conditioned appeals, further provides that “[t]he opposite party shall fĳile a response within seven days of the fĳiling of the appeal. This response shall clearly state whether or not the appeal is opposed, the grounds therefore, and the submissions in support of those grounds.” 32. Those time limits shall be computed in accordance with Rule 7(A) and (B), which provide as follows: (A) Unless otherwise ordered by a Chamber or by a Designated Judge, or otherwise provided by the Rules, where the time prescribed by or under the Rules for the doing of any act shall run from the day after the notice of the occurrence of the event has been received in the normal course of transmission by the Registry, counsel for the Accused or the Prosecutor as the case may be. (B) Where a time limit is expressed in days, only ordinary calendar days shall be counted. Weekdays, Saturdays, Sundays and Public Holiday shall be counted as days. However, should the time limit expire on a Saturday, Sunday or Public Holiday, the time limit shall automatically be extended to the subsequent working day. 33. On computation of time, Article 18 of the Practice Direction for Certain Appeals before the Special Court adds:

13 Practice Direction for Certain Appeals Before the Special Court, 30 September 2004. 1030 part iii

In accordance with the Rules, the time-limits prescribed under this Practice Direction shall run from, but shall not include, the day upon which the relevant document is fĳiled. Should the last day of time prescribed fall upon a non-working day of the Special Court it shall be considered as falling on the fĳirst working day thereafter. 34. The Practice Direction on Filing Documents before the Special Court for Sierra Leone (the “Practice Direction on Filing of Documents”)14 regulates the format and contents of documents. Its Article 9 – Method of Filing Documents – provides: (B) The offfĳicial fĳiling hours are from 9:00 to 17:00 hours every weekday, excluding offfĳicial holidays. However, documents fĳiled after 16:00 hours shall be served the next working day. Documents shall not be accepted for fĳiling after 17:00 hours except as provided under Article 10 of this Practice Direction.15 (C) The date of fĳiling is the date that the document was received by the Court Management Section. The Court Management Section shall stamp the document legibly with the date of its receipt, subject to the provisions of Articles 4 to 8 of this Practice Direction […]

Application to the Current Case 35. Since leave to appeal was granted by the Trial Chamber on Friday 5 August 2005 and the Summer Recess froze all time-limits for fĳiling submissions from Monday 8 August 2005 until Sunday 28 August 2005,16 Rule 108(C) 7-days time- limit ended on Friday 2 September 2005. According to Article 9(B) of the Practice Direction on Filing of Documents, the Notice and grounds of Appeal were to be fĳiled at the latest on 5.00 p.m. The stamp on the Notice of Appeal shows that it was received by the Court Management Section of the Special Court at 5.13 p.m., in violation of Article 9(B) of the Practice Direction. 36. As a consequence of this fĳirst breach, the Notice of Appeal was circulated to the Parties on Monday 5 September 2005 only. The Defence Offfĳice’s Response was timely fĳiled on Friday 9 September 2005 at 4.59 p.m. but the Registrar fĳiled his Response on Monday 12 September only. This fĳiling would be out-of-time, if the date of reference for computation of Article 12 of the Practice Direction on Certain Appeal 7-days time-limit for fĳiling responses was computed from the date of fĳiling of the Notice of Appeal, namely Friday 2 September 2005. But since the late fĳiling of the Notice of Appeal consequently led to a late circulation of the Notice of Appeal to the Parties, the useful date for computation of time to fĳile a response was the date of circulation of the Notice of Appeal, namely Monday 12 September. In that respect, the Registrar’s Response was fĳiled in time.

14 Practice Direction on Filing Documents Before the Special Court for Sierra Leone, 27 February 2003, Amended on 1 June 2004. 15 Article 10 deals with urgent measures. 16 See Order Designating Judicial Recess, 23 June 2005. interlocutory decisions – appeals chamber 1031

37. As regards the Additional Motion fĳiled by the Registrar on 13 September 2005, however, and depending on the Appeals Chamber’s determination on its nature, i.e. should it be considered as an amplifĳication of the Registrar’s Response,17 it would be clearly out-of-time. 38. For the foregoing reason, the Appeals Chamber fĳinds that the Court Management Section erred by accepting the fĳiling of the Defence Notice of Appeal after the 5.00 p.m. time limit provided by Article 9(B) of the Practice Direction on Filing of Documents. The Appeals Chamber fĳinds consequently that the Defence Notice of Appeal was fĳiled out-of-time pursuant to Rule 108(C) and Article 9(B) of the Practice Direction on Filing of Documents. However, taking into account the fact that neither of the Respondents have objected to the Applicants’ non-compliance with the Rules and Practice Directions on that ground and the fact that part of the responsibility for the mistake visibly bears on the Court Management Section of the Special Court which was not strict enough as regards the respect of time limits, the Appeals Chamber considers that it is nonetheless properly seized of the Appeal.

Third Preliminary Issue: Admissibility of New Grounds and/or New Requests Submitted in Response or Reply Before the Appeals Chamber Summary of Issue 39. In Section IV of its Response to the Appeal Motion, the Defence Offfĳice submits what is entitled “Additional Grounds and Arguments.” These “Additional Grounds and Arguments” relate to: (i) the mandate of the Defence Offfĳice and its relation with the Registry; (ii) the fĳinding by the Trial Chamber that the Deputy Principal Defender undermined its Order or was unwilling to do her job; (iii) the consultation between the Registrar and the Trial Chamber; (iv) the Trial Chamber’s evaluation of the Registrar’s action. 40. In his Additional Motion, the Registrar submits that the Defence Offfĳice is not entitled to plead additional grounds outside the grounds of Appeal raised by the Appellants; that if the Defence Offfĳice wanted to raise grounds of appeal, it should have sought leave to appeal from the Trial Chamber; and that this way of proceeding prevents the Registrar from responding to the Additional Grounds raised by the Defence Offfĳice. The Registrar therefore prays the Appeals Chamber not to consider these Additional Grounds and, in the alternative, requests to be given the opportunity to fĳile a Response. 41. In its Response to the Registrar’s Additional Motion, the Defence Offfĳice challenges the characterisation of its statements as “Grounds of Appeal” and submits

17 See below, Fourth Preliminary Issue. 1032 part iii that the issues addressed in the “Additional Grounds and Arguments” contained in its Response are not new but have already been deliberated upon by the Trial Chamber, or submitted upon by the Registrar, and were only intended to further articulate Grounds 1, 5 and 6 developed by the Appellants. 42. The same issue of admissibility is also raised by the submissions made in the Defence Reply with regard to the validity of Justice Doherty’s Comment appended to the Decision granting leave to appeal: the Defence submits that this comment engenders a serious violation of the Accused rights to fair trial and was intended to unduly influence the Appeals Chamber. The Defence therefore requests the Appeals Chamber not to consider this “personal comment.”

Applicable Standards 43. On the issue of new grounds developed by a respondent in response to a motion fĳiled before the Trial Chamber, Trial Chamber I of the Special Court for Sierra Leone already ruled in another case: The Chamber wishes to express its strong disfavour of the practice of expanding the nature of submissions in response to a motion to the extent of introducing specifĳic, new and separate arguments amounting to, as it has been identifĳied by the Defence in its Response, a “counter motion.” The proper course of action in order to avoid confusion with reference to the nature and time limits for subsequent responses and replies is for the Defence to identify and distinguish the new legal issue, and then fĳile a separate and distinct motion.18 44. In the AFRC Case, on the issue of new requests sought for the fĳirst time in Reply, Trial Chamber II already held:

The Trial Chamber notes that, in its Reply, the Defence sought to substantially modify the relief sought. This is a practice that must be discouraged. A Reply is meant to answer matters raised by the other party in its Response, not to claim additional relief to that sought in the Motion. Obviously the other party, having already fĳiled a Response to the Motion, has no way under the Rules to answer the new prayer, except to apply to the Trial Chamber for leave to do so. In future, the Trial Chamber will not hear claims for additional relief contained in a Reply.19 This same fĳinding was made in the Impugned Decision.20

18 Prosecutor v. Sesay, Kallon, Gbao, Case No. SCSL-2004-15-T, Decision on Prosecution Request for Leave to Call Additional Witnesses and Disclose Additional Witness Statements, 11 February 2005, para. 28. 19 Prosecutor v. Brima, Kamara, Kanu, Case No. SCSL-2004-16-T, Decision on Joint defence Motion on Disclosure of All Original Witness Statements, Interview Notes and Investigator’s Notes Pursuant to Rule 66 and/or 68, 4 May 2005, para. 20. See also Prosecutor v. Brima, Kamara, Kanu, Case No. SCSL-2004-16-T, Decision on Objection to Question Put by Defence in Cross-Examination of Witness TF1-227, 15 June 2005, para. 43. 20 Prosecutor v. Brima, Kamara, Case No. SCSL-2004-16-T, Decision on the Extremely Urgent Confĳidential Joint Motion for the Re-Appointment of Kevin Metzger and Wilbert Harris as Lead interlocutory decisions – appeals chamber 1033

45. Trial Chamber II also stressed that such practice casts confusion with reference to the nature and time limits for subsequent responses and replies: The Trial Chamber wishes to express its strong disfavour for the practice of combining pleadings or submissions for which the Rules prescribe diffferent fĳiling time limits. As the Defence has rightly observed, Rule 7(C) of the Rules provides that “unless otherwise ordered by the Trial Chamber, a response to a motion shall be fĳiled within ten days while a reply to response shall be fĳiled within fĳive days.” We note that in this case the Prosecution’s Combined Reply comprises two pleadings, namely the Prosecution Response to the Defence Reply (for which a fĳiling time limit of fĳive days is applicable), and the Prosecution’s Reply to the Defence Notice and Request (for which a fĳiling time limit of ten days is applicable). The proper and preferred course of action is for the parties to fĳile the various responses and replies in separate documents in order to avoid confusion over issues as well as time frames. In the present case we observe that the irregularity by the Prosecution has not occasioned a miscarriage of justice as their “Combined Reply” was fĳiled on the 18 May 2005, fĳive days after the fĳiling of the Defence Reply. The Prosecution therefore appears to have complied with both time limits prescribed by Rule 7(C). The preliminary objection is accordingly overruled.21 46. As regards new grounds made in a response before the Appeals Chamber, it must fĳirst and foremost be reminded that the requirement for leave to submit grounds to the Appeals Chamber prevents a party which did not apply for leave to appeal from submitting new grounds of appeal. The Appeals Chamber already ruled that: for the need to deal with the issue raised in these proceedings once and for all in order to clear any doubt as to the limits of the Court’s inherent jurisdiction, it would have been in order to refuse to entertain the proceedings on the ground that there is no procedural foundation for approaching the Appeals Chamber in matters such as this, touching on a decision of the Trial Chamber rendered in a motion under Rule 73(A), without prior leave of the Trial Chamber.22 Consequently, a party who has not applied for a leave to appeal cannot take advantage of the leave granted to another party to raise grounds of appeal in its response to the appeal motion. 47. As regards new grounds or requests made by the appellant in its reply, Paragraph 10 of the Practice Direction for Certain Appeals provides that, where

Counsel for Alex Tamba Brima and Brima Bazzy Kamara and Decision on Cross-Motion by Deputy Principal Defender to Trial Chamber II for Clarifĳication of its Oral Order of 12 May 2005, 9 June 2005, para. 20. 21 Prosecutor v. Brima, Kamara, Kanu, Case No. SCSL-2004-16-T, Decision on Prosecution request for Leave to Call an Additional Witness (Zainab Hawa Bangura) Pursuant to Rule 73bis(E), and on Joint Defence Notice to Inform the Trial Chamber of its Position vis-à-vis the Proposed Expert Witness (Mrs. Bangura) Pursuant to Rule 94bis, 5 August 2005, para. 27. 22 Prosecutor v. Norman, Fofana, Kondewa, Case No. SCSL-2004-14-A, Decision on Prosecution Appeal Against the Trial Chamber’s Decision of 2 August 2004 Refusing Leave to File an Interlocutory Appeal, 17 January 2005, para. 24. 1034 part iii leave to appeal is granted, the appellant shall, in accordance with the Rules, fĳile and serve on the other parties a notice of appeal containing, notably, (c) the grounds of appeal and (d) the relief sought. A new ground or request made by the appellant in its reply cannot, by that very fact, comply with Paragraph 10 of the Practice Direction since it was not mentioned in the notice of appeal. Moreover, the above comments made by Trial Chambers about “confusion with reference to the nature and time limits for subsequent responses and replies” cast on the trial proceedings are equally applicable in appeal. For these reasons, the Appeals Chamber fĳinds that such new grounds or requests are inadmissible. 48. This fĳinding, however, shall not apply to new submissions made in response or reply by the Parties in connection with the grounds and requests properly submitted in the appeal. The confusion met in the current Appeal between, on the one hand, grounds and requests, and, on the other hand, submissions, requires some urgent clarifĳication by the Appeals Chamber. 49. “Grounds” are defĳined in Paragraph 10(c) of the Practice Direction for Certain Appeals which provides that they consist of “clear concise statements of the errors complained of.”23 Although Article 20(1) of the Statute and Rule 106 apply to appeals from convicted persons, the list of errors referred to in these provisions may provide some guidance, albeit limited, to interlocutory appeals under Rule 73(B). These errors are “(a) A procedural error; (b) An error on a question of law invalidating the decision; (c) An error of fact which has occasioned a miscarriage of justice.”24 To that list, a decision of Trial Chamber I in the RUF Case added appeals based on a legal issue that is of “general signifĳicance to the Tribunal’s jurisprudence,”25 but that extension of the standard grounds of appeal relied on a prior version of the International Criminal Tribunal for the Former Yugoslavia (“ICTY”) Rule 73(B)26 and goes against the otherwise established jurisprudence of the Special Court for Sierra Leone on the matter. 50. As regards “requests,” Paragraph 10(d) of the Practice Direction provides that the notice of appeal shall mention “the relief sought.” On the nature of that relief, Article 20(2) of the Statute and Rule 106(B) may also be of some guidance in

23 Paragraph 10(C) of the Practice Direction on Certain Appeals (emphasis added). 24 Article 20(1) of the Statute; Rule 106 of the Rules of Procedure and Evidence (emphasis added). 25 Prosecutor v. Gbao, Case No. SCSL-2004-15-T, Decision on Application for Leave to Appeal Decision on Application to Withdraw Counsel, 4 August 2004, para. 54–55, 57. 26 For an application of that old Rule by the ICTY Appeals Chamber, see Prosecutor v. Tadic, Case No. IT-94-1-A, Appeal Judgement, 15 July 1999, para. 247; Prosecutor v. Kupreskic, Case No. IT-95-16-A, Appeal Judgement, 23 October 2001, para. 22. Rule 73(B) of the ICTY currently provides: “Decisions on all motions are without interlocutory appeal save with certifĳication by the Trial Chamber, which may grant such certifĳication if the decision involves an issue that would signifĳicantly afffect the fair and expeditious conduct of the proceedings or the outcome of the trial, and for which, in the opinion of the Trial Chamber, an immediate resolution by the Appeals Chamber may materially advance the proceedings.(Amended 12 Apr 2001, amended 23 Apr 2002). interlocutory decisions – appeals chamber 1035 reaching the fĳinding that it may consist in the reversal or revision of the decision taken by the Trial Chamber.27 51. When new grounds or requests not mentioned in the notice of appeal are, for the above reasons, inadmissible, new arguments, that are related to, either supporting or challenging, the appellant’s admissible grounds and requests may be considered admissible in a response to the appeal motion. Submission of these new arguments is the main purpose of a response to an appeal motion and does not cast any “confusion with reference to the nature and time limits for subsequent responses and replies” in the proceedings: indeed, they can only be replied by the appellant in the normal way provided by the Rules and do not create a new right to respond for the other Parties. 52. New arguments in reply may also be deemed admissible, with the limitation that they should be strictly limited to the purpose of replying to the arguments developed in response to the appeal motion. New arguments supporting the appeal motion which do not reply to the Respondent’s arguments challenging it shall accordingly not be admitted. To rule otherwise would jeopardize the Respondent’s right to challenge the appeal motion.

Application to the Current Case 53. In the instant case, the Appeals Chamber needs to determine the following preliminary issues in relation to the Admissibility of New Grounds of Appeal or Requests Submitted in Response/Reply: a. The admissibility of the “Additional Grounds and Arguments” submitted by the Defence Offfĳice in its Response; b. The admissibility of the Defence Request, in its Reply, not to consider Justice Doherty’s “Personal Comment.”

Admissibility of the “Additional Grounds and Arguments” Submitted by the Defence Offfĳice in Its Response 54. Although the entitling of this section of the Defence Offfĳice’s submissions in Response may be awkward, the Registrar’s formal approach, requesting the Appeals Chamber to reject these “Additional Grounds and Arguments” as a whole, is not satisfactory. As mentioned earlier, a distinction must be made between “Additional Grounds” – which are inadmissible at this stage – and “Additional Arguments” in relation with the Appellants’ grounds of appeal, – which may be admitted under the conditions set forth above.

27 See also Prosecutor v. Sesay, Case No. SCSL-2004-15-T, Decision on Defence Motion, 15 July 2004, para. 13 and Prosecutor v. Kallon, Case No. SCSL-2004-15-T, Decision on Confĳidential Motion, 11 October 2004, para. 21, on the nature of “requests” before the Trial Chambers. 1036 part iii

55. A careful reading of the “Additional Grounds and Arguments” section of the Response fĳiled by the Defence Offfĳice reveals that some of the submissions it contains are closely related to and support the Appellants Grounds of Appeal: 1. The Defence Offfĳice’s submissions on the mandate of the Defence Offfĳice and its relation with the Registry (Section 1 of the Defence Offfĳice’s Additional Grounds and Arguments) and the Trial Chamber’s evaluation of the Registrar’s action (Section 4 of the Defence Offfĳice’s Additional Grounds and Arguments) are supporting the Appellants’ sixth Ground of Appeal on the lack of power of the Registrar to strike Counsel out of the list of Eligible Counsel. 2. The Defence Offfĳice’s submissions on the consultation between the Registrar and the Trial Chamber (Section 3 of the Defence Offfĳice’s Additional Grounds and Arguments) are supporting the Appellants’ seventh Ground of Appeal on the impartiality of the Trial Chamber and the recusation of its Judges. 56. These additional arguments are submissions supporting the Appellants’ Grounds of Appeal and are admissible in Response to the Appeal Motion. They do not require a further Response from the Registrar. 57. On the contrary, the Defence Offfĳice’s submission relating to the Trial Chamber’s fĳinding that the Deputy Principal Defender undermined its Order or was unwilling to do her job (Section 2 of the Defence Offfĳice’s Additional Grounds and Arguments) does not relate to any of the Appellants’ Grounds of Appeal. Rather, the Appeals Chamber is of the view that this submission is an attempt to appeal the Trial Chamber’s determination of the Deputy Principal Defender’s Cross Motion in the Impugned Decision. If the Defence Offfĳice wanted to appeal the Trial Chamber’s Decision on its Cross Motion, it should have applied for a leave to appeal. Since it did not, this additional ground of appeal is inadmissible.

Admissibility of the Defence Request, in Its Reply, Not to Consider Justice Doherty’s “Personal Comment” 58. This request was not mentioned in the original Notice of Appeal fĳiled by the Defence. The submissions supporting it do not relate to the grounds of appeal developed by the Defence in its Appeal Motion. In accordance with the above mentioned applicable standards, the Appeals Chamber considers that this new request is inadmissible and, consequently, dismisses it.

Fourth Preliminary Issue: Registrar’s Additional Motion Summary of Issue 59. In addition to his Response to the Appeal Motion, the Registrar also fĳiled, on 13 September 2005, an “Additional Motion.” The purpose of this Additional Motion interlocutory decisions – appeals chamber 1037 is to challenge the “Additional Grounds and Arguments” submitted in its Response by the Defence Offfĳice. The Registrar submits that the Defence Offfĳice is not entitled to plead additional grounds to the grounds of appeal set out in the Notice of Appeal and that, if it wished to do so, it should have applied for leave to appeal, but it did not. The Registrar submits that these new Grounds should not be considered by the Appeals Chamber and, should the Appeals Chamber nonetheless decide to consider them, requests to be given the opportunity to fĳile a response. 60. In its Response to the Registrar’s Additional Motion, the Defence Offfĳice submits that this Additional Motion is not admissible for lack of legal basis and challenges the characterisation of his statements as “Grounds of Appeal.” The Defence adds that the Registrar has been accorded a fair opportunity to present his arguments and opposes the Registrar’s request to be given the opportunity to fĳile another response.

Merits of the Registrar’s Additional Motion 61. The Registrar’s Additional Motion requests the Appeals Chamber not to consider the “Additional Grounds and Arguments” raised by the Defence Offfĳice in its Response, or, in the alternative, that the Appeals Chamber leaves the Registrar respond them. The Appeals Chamber will address these two alternative requests separately. 62. As regards the request for the Appeals Chamber not to consider the “Additional Grounds and Arguments” raised by the Defence Offfĳice in its Response to the Appeal, Rule 113(B) specifĳically provides that no further submissions, but the appellant’s submissions in appeal28 and reply29 and the respondent’s response30 may be fĳiled, except with leave of the Appeals Chamber. In particular, the Statute and the Rules nowhere provide for a right of a respondent to reply/rejoin another respondent’s response. It is therefore the view of the Appeals Chamber that the proper way to address the new grounds and arguments raised in the Defence Offfĳice’s Response was for the Registrar to address them in his own Response and that the request not to consider the Defence Offfĳice’s “Additional Grounds and Arguments” was anyway to be fĳiled within the time-limit for fĳiling the Registrar’s Response pursuant to Paragraph 12 of the Practice Direction for Certain Appeals. In the current case, and for the reasons set out earlier,31 the time-limit for fĳiling responses to the Appeal expired on 12 September 2005. Since the Registrar’s Additional Motion was fĳiled on 13 September 2005 and no application for extension of time under Rule 116 was fĳiled by the Registrar, the Appeals Chamber fĳinds

28 Rule 111 of the Rules of Procedure and Evidence. 29 Rule 113(A) of the Rules of Procedure and Evidence. 30 Rule 112 of the Rules of Procedure and Evidence. 31 Supra, Second Preliminary Issue. 1038 part iii that the Registrar’s request not to consider the Defence Offfĳice’s “Additional Grounds and Arguments” was out-of-time. The Registrar’s Additional Motion is therefore dismissed on this aspect. 63. The second request mentioned above seeks leave to respond the Defence Offfĳice’s “Additional Grounds and Arguments.” Such response to grounds and arguments brought in another Respondent’s response can only be made, pursuant to Rule 113(B), with the Appeals Chamber’s express leave. Rule 113(B) does not specify the criteria to be satisfĳied for such leave, but it is obvious that such leaves shall remain very exceptional and be granted only where the respect of the adversarial character of the proceedings strongly requires so. Since the Appeals Chamber has already decided that the additional ground raised in the Defence Offfĳice’s Response was inadmissible, there is no need for the Registrar to respond it. Leave to do so under Rule 113(B) is accordingly denied. As regards the application for leave to respond the Defence Offfĳice’s additional arguments, the Appeals Chamber is of the view that these arguments were properly made in the Defence Offfĳice’s Response, that the Registrar has already been given full opportunity to respond the Appeal Motion and that he did so, that the Statute and Rules do not provide for a right of a respondent to reply/rejoin another respondent’s response and that there is consequently no reason for leaving the Registrar to fĳile further submissions in relation to these arguments. 64. The Registrar’s Additional Motion is therefore denied in its entirety. This fĳinding does not vary, however, the Appeals Chamber’s earlier fĳinding on the admissibility of the Defence Offfĳice’s “Additional Grounds and Arguments.”32

Merits of the Appeal

Defence First Ground of Appeal 65. In its First Ground of Appeal, the Defence challenges the alleged Registrar’s Decision not to reassign Counsel and the Trial Chamber’s power or authority to interfere in the statutory right of the Accused to choose their assigned Counsel. 66. The “Registrar’s Decision” referred to in this ground is embodied by a Letter from the Legal Adviser of the Registrar, Mr. Kevin Maguire, to Ms. Elizabeth Nahamya, Deputy Principal Defender, of 19 May 2005.33 This decision by the Registrar follows several correspondences addressed to him by the Deputy Principal Defender in which she informed him of her intention to reassign the

32 Supra, Third Preliminary Issue. 33 See Attachment C to the Motion for Reappointment. interlocutory decisions – appeals chamber 1039 withdrawn Counsel34 and requested his written instructions.35 In the Letter of 19 May 2005, Mr. Maguire writes: I have been asked by the Registrar to confĳirm formally with you that Counsel WILBERT HARRIS and KEVIN METZGER are not to be reappointed as lead counsel in the AFRC trial in Trial chamber 2. The reason was conveyed to you verbally early this afternoon by the Registrar in his offfĳice which was that the trial chamber had made an order allowing counsel to withdraw and that order was to stand. The trial chamber confĳirmed this order again on 16 May following an oral notifĳication of the desire to re-appoint counsel and the court said that the order had been made and any letters, correspondence or documents that seek to go behind that decision cannot be countenanced by the court. 67. In the view of the Appeals Chamber, the First Ground of Appeal raises three questions: First, did the Trial Chamber have jurisdiction to judicially review the decision of the Registrar? If the Chamber had jurisdiction, then, second, could the Registrar decide on the issue of the reassignment of the withdrawn Counsel? And, third, was the Trial Chamber right, in the Impugned Decision, in confĳirming that decision from the Registrar? The Appeals Chamber now addresses those three issues consecutively.

Trial Chamber’s Jurisdiction to Judicially Review the Decision Not to Re-assign Counsel 68. The Motion to re-assign specifĳically requested the Trial Chamber to declare null and void the Registrar’s decision not to re-assign the withdrawn Counsel. Trial Chamber II addressed that issue in the Impugned Decision and proceeded to a review of the motives of the Registrar’s decision, thereby implicitly exercising its jurisdiction to judicially review a decision of an administrative nature without further justifĳication. It is the view of the Appeals Chamber that the Trial Chamber’s jurisdiction to judicially review the Registrar’s decision was not that obvious and deserved some explanations. 69. Rule 45 is mute on the remedy against a decision refusing the assignment of Counsel. This issue is specifĳically addressed in the Directive, which provides:36 The Suspect or Accused whose request for assignment of counsel has been denied or who is subject to a demand under Article 9(A)(ii) of this Directive may bring a

34 See Interofffĳice Memorandum, re: “Re-appointment of Mr. Kevin Metzger and Wilbert Harris as Lead Counsel,” 17 May 2005, in Attachment A to the Defence Offfĳice’s Response. 35 See e-mail, re: Re-assignment of Mr. Metzger and Harris,” 19 May 2005, in Attachment C-1 to the Defence Offfĳice’s Response. 36 Article 12(A) of the Directive. 1040 part iii

Preliminary Motion before the appropriate Chamber objecting to the Principal Defender’s decision in accordance with Rule 72(B)(iv) of the Rules. 70. It is obvious that the disposition of Article 12(A) of the Directive do apply only in the case of the initial assignment of Counsel, at a stage where Preliminary Motions can be fĳiled pursuant to Rule 72(A), namely “within 21 days following disclosure by the Prosecutor to the Defence of all the material envisaged by Rule 66(A)(i).” The possibility that Article 12(A) of the Directive may derogate Rule 72(A) of the Rules of Procedure and Evidence by allowing the fĳiling of Preliminary Motions at other stages of the procedure, especially once the trial has started, cannot be contemplated since the Directive was precisely issued by the Registrar acting upon the authority given to him by the Rules. The Appeals Chamber concurs on this point with the fĳinding of Trial Chamber in its decision of 6 May 2004 in the Brima Case, that “the provisions of the Directive on the Assignment of Counsel promulgated by the Registrar on the 3rd October, 2003, cannot operate to either replace or to amend the Rules of Procedure and Evidence adopted by the Plenary of Judges of the Special Court.”37 The remedy contemplated in Article 12(A) is therefore not applicable in the current case, since the stage of Preliminary Motions is far overstayed. 71. The Appeals Chamber notes that the jurisprudence of other sister Tribunals has admitted, in the silence of the Rules and Directive applicable before those Tribunals, that the Registrar’s administrative decision denying the assignment of Counsel could be reviewed by the President, when the Accused had an interest to protect.38 However, such power to judicially review an administrative decision of the Registrar is denied to the Trial Chamber.39 72. The requirement for a judicial review of administrative decisions where the Accused has an interest to protect was perfectly justifĳied by Justice Pillay, the then President of the International Criminal Tribunal for Rwanda, in her decision of 13 November 2002:40

37 Prosecutor v. Brima, Case No. SCSL-2004-16-PT, Decision on Applicant’s Motion Against Denial by the Acting Principal Defender to Enter a Legal Service Contract for the Assignment of Counsel, 6 May 2004, para. 35. 38 See ICTR, Prosecutor v. Nzirorera, ICTR-98-44-T, President’s Decision on Review of the Decision of the Registrar Withdrawing Mr. Andrew McCartan as Lead Counsel of the Accused Joseph Nzirorera (President Pillay), 13 May 2002, p. 3, sect. (xi); ICTY, Prosecutor v. Hadzihasanovic et al., IT-01-47-PT, Decision on the Prosecution’s Motion for Review of the Decision of the Registrar to Assign Mr. Rodney Dixon as Co-Counsel to the Accused Kubura (TC), 26 March 2002, para. 12–13; ICTY, Prosecutor v. Delalic et al., IT-96-21-PT, Decision of the President on the Prosecutor’s Motion for the Production of Notes Exchanged Between Zejnil Delalic and Zdravko Mucic (President Cassese), 11 November 1996. 39 ICTR, Prosecutor v. Ntahobali, ICTR-97-21-T, Decision on Ntahobali’s Extremely Urgent Motion for the Re-instatement of Suspended Investigator, Mr. Thaddée Kwitonda (TC), 14 December 2001, para. 17. 40 ICTR, Prosecutor v. Ntahobali, ICTR-97-21-T, Decision on the Application by Arsène Shalom Ntahobali for Review of the Registrar’s Decisions Pertaining to the Assignment of an Investigator”(President Pillay), 13 November 2002, para. 4–5. interlocutory decisions – appeals chamber 1041

Modern systems of Administrative Law have built in review procedures to ensure fairness when individual rights and protected interests are in issue, or to preserve the interests of justice. In the context of the Tribunal, Rules 19 and 33(A) of the Rules ensure that such review is available in appropriate cases. While the Registrar has the responsibility of ensuring that all decisions are procedurally and substantially fair, not every decision by the Registrar can be the subject of review by the President. The Registrar must be free to conduct the business of the Registry without undue interference by Presidential review. In all systems of administrative law, a threshold condition must be satisfĳied before an administrative decision may be impugned by supervisory review. There are various formulations of this threshold condition in national jurisdictions, but a common theme is that the decision sought to be challenged, must involve a substantive right that should be protected as a matter of human rights jurisprudence or public policy. An application for review of the Registrar’s decision by the President on the basis that it is unfair procedurally or substantively, is admissible under Rules 19 and 33(A) of the Rules, if the accused has a protective right or interest, or if it is otherwise in the interests of justice.

73. The Appeals Chamber concurs with Justice Pillay’s view on the need for a juridical review of administrative decisions afffecting the rights of the Accused. However, the Appeals Chamber is not convinced that, in the specifĳic situation of the Special Court, this judicial power should necessarily fall within the exclusive province of the President for the following reasons. 74. First, the Appeals Chamber notes that Article 24(E) and (F) of the Directive submits the Principal Defender’s decision to withdraw Counsel to the judicial review of “the presiding Judge of the appropriate Chamber.” This regulation is not problematic when, as in the current case, the trial is pending before a Trial Chamber, since the question is then submitted to the Presiding Judge of the Trial Chamber; but, once the case has reached the appeal phase, then the decision to withdraw Counsel would be submitted to the President of the Appeals Chamber, who is, pursuant to Article 12(3) of the Statute, the President of the Special Court. In that situation, would the decision to assign Counsel fall in the exclusive province of the President of the Special Court, he would be the only authority to judicially review the administrative decision to withdraw Counsel and then, once again, the decision denying the assignment of Counsel. That may put the President of the Special Court in a difffĳicult situation. 75. Second, although the remedy provided by Article 12(A) of the Directive is not applicable in the current case, the Appeals Chamber notes that this Article gives jurisdiction to the Trial Chamber to review, by way of Preliminary Motion, the administrative decision on assignment of Counsel. The Appeals Chamber sees no reason to depart from that solution and considers that Article 12(A) should apply mutatis mutandis in the present situation and allow to seize the Trial Chamber by way of an interlocutory Motion pursuant to Rule 73(A) of the judicial review of the administrative decision on assignment of counsel. 1042 part iii

76. Third, the Appeals Chamber concurs with the fĳinding made by Trial Chamber I in its decision of 6 May 2004 in the Brima Case, that such judicial review falls, due to the silence of the regulations applicable before the Special Court, within the inherent jurisdiction of the Trial Chamber:41 [T]he chamber is of the opinion that the motion, even though brought under the wrong Rule, can, and so do we decide, in the overall interests of justice and to prevent a violation of the rights of the Accused, be examined by invoking our inherent jurisdiction to entertain it and to adjudicate on it on the ground of a denial of request for assignment of Counsel within the context of Article 17(4)(d) of the Statute. 77. The Appeals Chamber refers to the above quoted reasoning of President Pillay as regards the reasons for exercising such inherent jurisdiction. 78. For the foregoing reasons, the Appeals Chamber fĳinds that the Trial Chamber had jurisdiction to judicially review the Registrar’s Decision not to re-assign Counsel.

The Decision of the Registrar not to reassign Counsel 79. It is the view of the Appeals Chamber that the Statute, the Rules of Procedure and Evidence and the Directive on the Assignment of Counsel describe a coherent system in which the main responsibility for assigning Counsel to the Accused is given to the Defence Offfĳice set up by the Registrar pursuant to Rule 45. 80. The Defence Offfĳice and, at his head, the Principal Defender are notably responsible for: • Ensuring the rights of suspects and accused;42 • Providing representation to the suspects and accused;43 • Maintaining a list of highly qualifĳied criminal defence counsel who are appropriate to act as duty counsel or to lead the defence or appeal of an accused;44 • Determining the suspect or accused requests for assignment of Counsel;45 • Assigning Counsel;46 • Assigning Counsel in the interests of justice;47

41 Prosecutor v. Brima, Case No. SCSL-2004-16-PT, Decision on Applicant’s Motion Against Denial by the Acting Principal Defender to Enter a Legal Service Contract for the Assignment of Counsel, 6 May 2004, para. 39. 42 Rule 45(Chapeau) and Article 1(A) of the Directive. 43 Rule 45(A) (emphasis added). 44 Rule 45(C) and Articles 13 and 23(B)(iii) of the Directive. 45 Article 9(A) and 12(B) of the Directive. 46 Article 9(A)(i) of the Directive. 47 Article 10 of the Directive. interlocutory decisions – appeals chamber 1043

• Notifying his Decision to assign Counsel to the suspect or accused and his Counsel;48 • Negotiating and Entering Legal Services Contracts with the Assigned Counsel;49 • Determining requests for replacement of assigned Counsel;50 • Withdrawing Counsel when the Suspect or Accused is no longer indigent;51 • Withdrawing Counsel in other situations;52 • In the event of the withdrawal of a Counsel, assigning another Counsel to the Accused.53 81. On the other hand, the Registrar is given the responsibility: • for the administration and servicing of the Special Court;54 • for establishing, maintaining and developing a Defence Offfĳice, for the purpose of ensuring the rights of suspects and accused;55 • for assisting the Principal Defender in the performance of his functions;56 • for maintaining and developing a Defence Offfĳice, for the purpose of ensuring the rights of suspects and accused.57 82. The Appeals Chamber notes that the Statute itself does not mention the Defence Offfĳice, or the Principal Defender, and is mute on which organ is given the responsibility for ensuring the rights of the Accused provided in Article 17 of the statute. Article 16(1) of the Statute provides that the Registry is responsible for the administration and servicing of the Special Court, which duty may include some aspects of protection of the rights of the Accused, but is nevertheless quite distinct. On the other hand, Rule 45 does provide for the establishment of a Defence Offfĳice by the Registrar and that this Defence Offfĳice is given the main responsibility for ensuring the rights of suspects and accused. 83. It results from the Statute and Rules that the Defence Offfĳice is not an independent organ of the Special Court, as Chambers, the Offfĳice of the Prosecutor and the Registry are pursuant to Articles 11, 12, 15 and 16 of the Statute. As a creation of the Registrar, the Defence Offfĳice and at its head, the Principal Defender, remain under the administrative authority of the Registrar. Although the Defence Offfĳice

48 Article 11 of the Directive (emphasis added). 49 Article 1(A), 14 and 16(C) to (F). 50 Rule 45(D). 51 Article 23(A) of the Directive. 52 Article 24(A) and (B) of the Directive. 53 Rule 45(E) and Article 23(D) of the Directive. (Emphasis added). 54 Article 16(1) of the Statute and Rule 33(A). 55 Rule 45 (Chapeau). 56 Rule 33(A). 57 Rule 45 and Article 1(A) of the Directive. 1044 part iii is given the main responsibility for ensuring the rights of the accused by accom- plishing the functions mentioned above, it is supposed to exercise its duty under the administrative authority of the Registrar who, notably, is in charge of recruiting its stafff, including the Principal Defender, in accordance with his general responsibility on administration pursuant to Article 16(1) of the Statute. 84. It may be inferred from the creation of the Defence Offfĳice by the Registrar pursuant to Rule 45 that the Registrar bore the primary responsibility for ensuring the rights of the Accused pursuant to Article 17 of the Statute and that, by establishing the Defence Offfĳice, he delegated this responsibility to it. But this interpretation would be contrary to the Statute of the Special Court according to which the responsibility for ensuring the rights of the Accused does not fall on any organ in particular but rather appears, in the silence of Article 17, as a common duty shared by the three organs. The Rules cannot vary the responsibilities of the organs of the Court under the Statute. Moreover, other Rules provide the responsibility of the other organs of the Special Court, notably Chambers,58 for other aspects of ensuring the rights of the accused. The delegation given by the Registrar to the Defence Offfĳice is therefore limited to certain aspects of the Registrar’s responsibility for ensuring the rights of the accused under the Statute, namely the administrative aspect of the task, which includes notably, assignment, payment, withdrawal and replacement of Counsel. On his part, the Registrar still keeps the responsibility for ensuring certain aspects of the rights of the Accused, notably as regards their rights in detention pursuant to Rule 33(C). 85. Having clarifĳied the repartition of responsibilities between the Registrar and the Defence Offfĳice, it appears that the responsibility to reassign the withdrawn Counsel, or to assign other Counsel in compliance with Trial Chamber II’s express order, fell in the province of the Defence Offfĳice pursuant to Rule 45(E) and Article 23(D) of the Directive. 86. Does that mean that the Registrar could not interfere in the matter? The Appeals Chamber does not fĳind so for two reasons. First, the above mentioned correspondences of the Deputy Principal Defender to the Registrar show that she expected and requested his written instructions on the matter, thereby putting him in a position of administrative authority under which the Deputy Principal Defender intended to act. Second, having found that, by creating the Defence Offfĳice, the Registrar delegated part of his power and responsibility in the enforcement of the rights of the Defence to it, it results from English administrative law,59 that the Registrar did not divest himself of his power and can therefore act

58 e.g. Rule 26bis. 59 Huth v. Clarke (1890) 25 QBD 391. See also the Local Government Act 1972 s 101(4); and Halsbury’s Laws of England, Administrative Law, 2. Administrative Powers. interlocutory decisions – appeals chamber 1045 concurrently with the Principal Defender, in particular when she requires him to do so as in the current case. 87. The Appeals Chamber therefore fĳinds that the Registrar had the power to decide on the issue of the re-assignment of the withdrawn Counsel, especially when he had expressly been seized of the matter by the Deputy Principal Defender, thereby deferring to his administrative authority on the Defence Offfĳice. The Appeals Chamber observes that the Registrar was extremely cautious in not interfering in the Principal Defender’s province by limiting his intervention to instructions, when he may have decided to appoint by himself new Counsels to the Accused. The Appeals Chamber now turns to the question of whether the Registrar did take the right decision. 88. Rule 45(E) of the Rules of Procedure and Evidence provides that in the event of the withdrawal of a Counsel, “the Principal Defender shall assign another Counsel who may be a member of the Defence Offfĳice, to the indigent accused.” Article 24 – Withdrawal of Assignment in Other Situations – of the Directive, applicable in the current case, provides in Paragraph (D) that “[t]he Principal Defender shall immediately assign a new Counsel to the Suspect or Accused.” Neither Rule 45(E) nor Article 24(D) does provide, in the circumstances of the withdrawal of Counsel, discretion of the Principal Defender to reassign the same Counsel as withdrawn. The choice of the new Counsel to be assigned belongs to the Principal Defender, in consultation with the suspect or accused, pursuant to Article 9(A)(i) of the Directive, but Rule 45(E) and Article 24(D) make it clear that the assigned Counsel shall be diffferent from the withdrawn one. 89. The Appeals Chamber does not see any merits in the Defence allegation that the exclusion of the withdrawn Counsel from re-assignment violates the accused’s right to a Counsel of their own choosing. On this aspect, the Appeals Chamber concurs with the Trial Chamber’s fĳinding in the Impugned Decision,60 agreed upon by both Respondents,61 that the right to counsel of the Accused’s own choosing is not absolute, especially in the case of indigent accused, and observes that the conditions of exercise of this right are set up by the Directive. In particular, the indigent Accused shall be consulted on the choice of his counsel pursuant to Article 9(A)(i) of the Directive and he may only elect one Counsel from the list of qualifĳied counsel set up by the Principal Defender in accordance with Rule 45(C) and Article 13 of the Directive. The Appeals Chamber notes that this consultation process goes substantially further in the protection of the indigent accused right to a counsel of their own choosing than the regulations applicable before other sister Tribunals, which provide that the Registrar chooses and appoints Counsel

60 Impugned Decision, para. 44. 61 Defence Offfĳice’s Response, p. 6–7; Registrar’s Response, para. 2, 15. 1046 part iii but does not mention any consultation with the Accused.62 The SCSL regulations are also fully consistent with the jurisprudence of the European Court for Human Rights, in particular its Decision in the Mayzit v. Russia Case relied upon by the Applicants:63 Notwithstanding the importance of a relationship of confĳidence between lawyer and client, the right to choose one’s own counsel cannot be considered to be absolute. It is necessarily subject to certain limitations where free legal aid is concerned and also where it is for the courts to decide whether the interests of justice require that the accused be defended by counsel appointed by them. When appointing defence counsel the national courts must certainly have regard to the defendant’s wishes. However, they can override those wishes when there are relevant and sufffĳicient grounds for holding that this is necessary in the interests of justice (see Croissant v. Germany, judgment of 25 September 1992, Series A no. 237-B, § 29). 90. It is therefore the view of the Appeals Chamber that the aforementioned regulations applicable before the Special Court are fully consistent with Article 17(4)(d) right of the Accused to a counsel of his own choosing. 91. In his decision embodied by Mr. Maguire’s Letter of 19 May 2005, the Registrar did nothing more than restate the order “allowing counsel to withdraw” made by Trial Chamber II on 12 May 200564 and confĳirmed “again on 16 May following an oral notifĳication of the desire to re-appoint counsel” when “the court said that the order had been made and any letters, correspondence or documents that seek to go behind that decision cannot be countenanced by the court.”65 92. In the view of the Appeals Chamber, the Registrar may have made his decision clearer by referring to the Trial Chamber’s orders directing “the Principal Defender to assign another counsel as lead counsel to” Brima and Kamara66 and to the relevant dispositions of Rule 45(E) and Article 24(D) of the Directive. But it is the Appeals Chamber’s view that the Registrar’s decision that the withdrawn Counsel shall not be re-assigned was fully consistent with these regulations and did not violate in any way the Accused right to Counsel of their own choosing. 93. The Appeals Chamber therefore fĳinds that the Registrar had the capacity to take the decision embodied by Mr. Maguire’s letter of 19 May 2005 and that the decision he made was correct.

62 Article 10(A)(i) of the ICTR Directive on Assignment of Counsel; Article 11(A)(i) of the ICTY Directive on Assignment of Counsel. See also the jurisprudence referred to at para. 45 of the Impugned Decision. 63 Mayzit v. Russia, ECHR (2005), 20 January 2005, para. 66. 64 See Prosecutor v. Brima, Kamara, Kanu, Case No. SCSL-2004-15-T, Transcript of 12 May 2005, p. 2, annexed to the Defence’s Reply. 65 See Prosecutor v. Brima, Kamara, Kanu, Case No. SCSL-2004-15-T, Transcript of 16 May 2005, p. 2, quoted in Defence Offfĳice’s Response, p. 3. 66 Transcript of 12 May 2005, p. 2, lines 17–20, annexed to the Defence’s Reply. interlocutory decisions – appeals chamber 1047

The Trial Chamber’s Refusal to Declare the Decision of the Registrar Not to Re-assign Counsel Null and Void 94. To deny the Applicants’ request to declare the Registrar’s decision not to re- assign Counsel null and void, the Trial Chamber fĳirst justifĳies the intervention of the Registrar in that matter on the ground that, “in the absence of the actual Principal Defender, certain obligations to carry out duties fall out upon the Registrar.”67 The Appeals Chamber disagrees with that opinion of the Trial Chamber. As held by Trial Chamber I in its decision of 6 May 2004 in the same case:68 In fact, in view of the very nature and functioning of public or private services, it is, and should always be envisaged, that the substantive holder of the position is not expected to be there at all times. In order to ensure a proper functioning and a continuity of services with a view to avoiding a disruption in the administrative machinery, the Administration envisages and recognizes the concept of “Acting Offfĳicials” in the absence of their substantive holders. The Chamber, contrary to the Applicant’s submission on this issue, is of the opinion that where an offfĳicial is properly appointed or designated to act in a position during the absence of the substantive holder of that position, the Acting Offfĳicial enjoys the same privileges and prerogatives as those of the substantive offfĳicial and in that capacity, can take the decisions inherent in that position. The Appeals Chamber concurs with this opinion of Trial Chamber I and considers that, in the absence of the actual Principal Defender, the duty to decide on the reassignment of the withdrawn Counsel automatically fell on the Deputy Principal Defender in her acting capacity. 95. However, the Appeals Chamber agrees with the Trial Chamber’s next fĳind- ing that the Registrar “has a further overall duty to act as principal administrator of the Court.” The Appeals Chamber fĳinds that the Registrar’s capacity to decide not to re-assign Counsel derived from his administrative authority on the Defence Offfĳice and, as explained above, from the delegation of his statutory prerogatives as regards the enforcement of the rights of the Defence pursuant to Articles 16(1) and 17 of the SCSL Statute, which did not divest him from his powers in the matter. 96. As regards the substance of the Registrar’s decision, the Appeals Chamber has already found that it was fully compliant with Rule 45(E) and Article 24(D) of the Directive, applicable in the case, and did not violate in any way the Accused’s statutory right to have a Counsel of their own choosing. The Registrar’s decision was furthermore in perfect accordance with the Trial Chamber’s oral ruling of

67 Para. 38 of the Impugned Decision. 68 Prosecutor v. Brima, Case No. SCSL-2004-16-PT, Decision on Applicant’s Motion Against Denial by the Acting Principal Defender to Enter a Legal Service Contract for the Assignment of Counsel, 6 May 2004, para. 78–79. 1048 part iii

12 May 2005, as confĳirmed on 16 May 2005. The Appeals Chamber therefore fĳinds that the Impugned Decision rightly dismissed the Applicants’ request to declare the Registrar decision null and void. 97. For the foregoing reasons, the Appeals Chamber dismisses the Appellants’ fĳirst ground of appeal in its entirety.

Defence Second Ground of Appeal 98. In their second ground of appeal, the Appellants challenge the Trial Chamber’s refusal to order the Acting Principal Defender to immediately enter into a legal contract with Messrs. Metzger and Harris.69 The Appeals Chamber notes that the Impugned Decision denies the Applicants request on that aspect on the ground that it does “not have the power to interfere with the law relating to privity of contract.” 99. Without need to enter the details of privity of contract and of the way Legal Services Contracts are concluded, the Appeals Chamber observes that, pursuant to Article 1(A) of the Directive, the Legal Services Contract is defĳined as an “agreement between Contracting Counsel and the Principal Defender for the representation of a Suspect or Accused before the Special Court for Sierra Leone outlined in Article 16 of this Directive.” As confĳirmed by Article 16(C) of the Directive, which provides that it is entered “as soon as practicable after assignment,” the Legal Services Contract is passed between the assigned Counsel and the Principal Defender. Since Mssrs. Metzger and Harris were no more assigned after their voluntary withdrawal on 12 May 2005, and could not be reassigned pursuant to Rule 45(E), Article 24(D) of the Directive and the Trial chamber’s express order, there was no way a Legal Services Contract could be concluded between them and the Principal Defender. 100. Although the reason given by the Trial Chamber in the Impugned Decision is incorrect, the Appeals Chamber agrees with the denial of the request to order the Principal Defender to enter a Legal Services Contract with the withdrawn Counsel and therefore dismisses the second ground of appeal in its entirety.

Defence Third Ground of Appeal 101. As Third Ground of Appeal, the Defence challenges the denial of an order for a public hearing on its application. The Defence submits that the right of the Accused to a fair and public trial is guaranteed by Article 17(2) of the Statute and that the only statutory restriction upon that right is that of measures imposed by

69 Para. 37 of the Impugned Decision. interlocutory decisions – appeals chamber 1049 the Trial chamber for the protection of victims and witnesses. The Defence submits that Rule 73(A) gives the Trial Chamber the power and discretion to hear motions in open court and that the Trial Chamber misinterpreted this Rule in a way which erodes the rights of the Accused under Article 17 of the Statute. 102. Article 17(2) of the Statue provides that the accused shall be given a fair and public hearing the purpose of which is to “protect litigants from the administration of justice in secret with no public scrutiny.”70 This right can be restricted as provided for in Article 17(2) of the Statute in order to protect victims and witnesses. This right is implemented in the Rules of Procedure and Evidence, in particular Rule 78 which provides that “[a]ll proceedings before a Trial Chamber, other than deliberations of the Chamber, shall be held in public, unless otherwise provided.” 103. The issue of publicity of the proceedings shall however be distinguished from the issue of their written or oral character. Written submissions are, unless otherwise specifĳically provided, public. Article 4(B) of the Practice Direction on Filing Documents provides: “Where a Party, State, organization or person seeks to fĳile all or part of a document on a confĳidential basis, the party shall mark the document as ‘CONFIDENTIAL’ and indicate, on the relevant Court Management Section form, the reasons for the confĳi- dentiality. The Judge or Chamber shall thereafter review the document and determine whether confĳidentiality is necessary. Documents that are not fĳiled confĳidentially may be used in press releases and be posted on the offfĳicial website of the Special Court.” 104. The publicity of written submissions and decisions implies, as mentioned in Article 4(B) of the Practice Direction on Filing of Documents, their potential use in press releases and their accessibility through the Special Court’s Website. In these circumstances there is no question of justice being administered secretly. 105. The Appeals Chamber therefore fĳinds no merits in the assertion that Rule 73(A) provision according to which interlocutory motions may be ruled “based solely on the written submissions of the parties, unless it is decided to hear the parties in open Court,” is, or may be interpreted, in contradiction with the Accused right to a fair and public hearing pursuant to Article 17(2) of the Statute. In the current case, all the submissions fĳiled in relation to the Motion to re-assign before the Trial Chamber were fĳiled publicly and are freely accessible on the Special Court’s Website, as well as the Impugned Decision. 106. The Appeals Chamber further fĳinds that Rule 73(A) provides for a discretion of the Trial Chamber to determine on the opportunity of having an hearing,

70 Pretto v. Italy (A/71): (1984) 6 E.H.R.R. p. 182. 1050 part iii which may not be public if the Chamber decides so pursuant to Rule 79, and that Trial Chamber II did not err in law in deciding to determine the Motion to re- assign without organising such hearing in the Impugned Decision. This decision in no way could jeopardize the Accused right to a fair and public hearing pursuant to Article 17(2) of the Statute. 107. For the foregoing reasons, the Appeal is dismissed on this ground.

Defence Fourth and Fifth Grounds of Appeal 108. In their fourth ground of appeal, the Appellants submit that the Trial Chamber erroneously considered the Motion to re-assign as a Rule 45(E) application. In their fĳifth ground of appeal, the Appellants submit that the Trial Chamber erroneously considered the Motion to re-assign as an application for review of its earlier Decision to withdraw. The Appeals Chamber deems appropriate to address those two grounds together. 109. The Impugned Decision fĳinds that the Motion to re-assign “seeks to reverse an order granting relief which the defence itself sought” and therefore considers it as “frivolous and vexatious.”71 This conclusion relies on the fĳindings that “the two lead counsel were not sincere in their reasons for bringing their motion to withdraw from the case and that they never expected it to succeed,”72 that “it [was] unclear on what legal grounds this application [was] made,”73 and that “this application in reality [was] simply a application to reverse a majority decision given by the Trial Chamber on 12 May 2005 because in that decision all relief prayed for was granted to Counsel.”74 The Appeals Chamber will address these three reasons consecutively.

Sincerity of the Application to Withdraw 110. The Appeals Chamber observes that this fĳinding and the considerations on which it relies are purely fĳindings of fact, namely the absence of direct evidence of a change in the circumstances having led to their withdrawal and the fact that the application to re-assign “emanate[d] from a letter from the accused purportedly written on the same day as the Trial Chamber’s order.”75 111. As regards fĳindings of fact made by the Trial Chamber, the Appeals Chamber recalls that, pursuant to Article 20(1)(c) of the Statute of the Special Court, it can only be seized of “an error of fact which has occasioned a miscarriage of justice” and that, pursuant to Article 20(2), the “Appeals Chamber may afffĳirm, reverse or

71 Para. 52 of the Impugned Decision. 72 Para. 48 of the Impugned Decision. 73 Para. 49 of the Impugned Decision. 74 Para. 50 of the Impugned Decision. 75 Para. 48 of the Impugned Decision. interlocutory decisions – appeals chamber 1051 revise the decisions taken by the Trial Chamber.” This Appeals Chamber has already held that these dispositions were also applicable to interlocutory appeals.76 112. These dispositions are the same as before other sister International Tribunals.77 They have been interpreted by the Appeals Chamber of both sister International Tribunals as implying a limited control of the Trial Chamber’s assessment of facts, which may be overturned by the Appeals Chamber only where no reasonable trier of fact could have reached the same fĳinding or where the fĳinding is wholly erroneous. This Appeals Chamber concurs with the fĳinding made in The Prosecutor v. Semanza, which relies on several judgements of both ICTR and ICTY Appeals Chamber:78 As regards errors of fact, as has been previously underscored by the Appeals Chamber of both this Tribunal and of the International Criminal Tribunal for the former Yugoslavia (“ICTY”), the Appeals Chamber will not lightly overturn fĳindings of fact made by a trial chamber. Where an erroneous fĳinding of fact is alleged, the Appeals Chamber will give deference to the trial chamber that heard the evidence at trial as it is best placed to assess the evidence, including the demeanour of witnesses. The Appeals Chamber will only interfere in those fĳindings where no reasonable trier of fact could have reached the same fĳinding or where the fĳinding is wholly erroneous. If the fĳinding of fact is erroneous, it will be quashed or revised only if the error occasioned a miscarriage of justice.79 The Appeals Chamber emphasises that, on appeal, a party cannot merely repeat arguments that did not succeed at trial in the hope that the Appeals Chamber will consider them afresh. The appeals process is not a trial de novo and the Appeals Chamber is not a second trier of fact. The burden is on the moving party to demonstrate that the trial chamber’s fĳindings or decisions constituted such an error as to warrant the intervention of the Appeals Chamber. Thus, arguments of a party which do not have the potential to cause the impugned decision to be reversed or revised may be immediately dismissed by the Appeals Chamber and need not be considered on the merits.80 113. The Appeals Chamber of the Special Court sees no reason to depart from this common jurisprudence of both sister International Criminal Tribunals’ Appeals Chamber and will apply it in the current case. 114. In the present case, neither the Trial Chamber’s conclusion as regards the sincerity of the Counsel’s application to withdraw, nor the considerations of facts

76 Prosecutor v. Norman, Fofana, Kondewa, Case No. SCSL-2004-14-AR73, Decision on Amendment of the Consolidated Indictment, 16 May 2005, para. 76. 77 See Articles 24(1)(b) and 24(2) of the ICTR Statute; Articles 25(1)(b) and 25(2) of the ICTY Statute. 78 Prosecutor v. Semanza, ICTR-97-20-A, Judgement, 20 May 2005, para. 8. 79 Niyitegeka Appeal Judgement, para. 8; Krstic Appeal Judgement, para. 40; Krnojelac Appeal Judgement, para. 11-13, 39; Tadic Appeal Judgement, para. 64; Celebici Appeal Judgement, para. 434; Aleksovski Appeal Judgement, para. 63; Vasiljevic Appeal Judgement, para. 8. 80 See in particular Rutaganda Appeal Judgement, para. 18. 1052 part iii on which this conclusion relies are challenged by the Appellants. The considerations of facts on which the Trial Chamber’s assessment of the sincerity of the application to withdraw relies are therefore not challenged by the Appellants. 115. In these circumstances, the Appeals Chamber fĳinds that the Appellants failed to demonstrate that the Trial Chamber’s fĳinding that the application to withdraw was not sincere could not have been reached by a reasonable trier of fact or was wholly erroneous and therefore dismisses the grounds on that aspect.

Lack of Legal Basis of the Application to Re-assign 116. The Appeals Chamber notes the fĳinding in the Impugned Decision that:81 it is unclear on what legal grounds this application is made. The application does not say it is founded on Rule 45(D) and makes no submission that there are exceptional circumstances that would allow the Trial Chamber to exercise its jurisdiction under Rule 45(D). 117. Although this fĳinding relates to the legal basis of the application to re-assign, it relies on another fĳinding of facts, namely the fact that the applicants nowhere specify the legal basis of their application in their submissions. 118. The Appeals Chamber fĳinds this fĳinding of fact wholly erroneous and refers to the very title of the Motion to re-assign the Trial chamber was seized of:82 Extremely Urgent Confĳidential Joint Motion for the Re-appointment of Kevin Metzger and Wilbert Harris as Lead Counsel for Alex Tamba Brima and Brima Bazzy Kamara, Pursuant to Articles 17(4)(C) and 17(4)(D) of the Statute of the Special Court for Sierra Leone and Rule 54 of the Rules of Procedure and Evidence and the Inherent Jurisdiction of the Court 119. It results from this very title of the application that the Motion to re-assign identifĳied three diffferent legal grounds, namely (i) Article 17(4)(C) and (D) of the Statute, (ii) Rule 54 and (iii) the inherent jurisdiction of the Court. References to Article 17(4)(C) is made at paragraph 25 of the Motion to re-assign. References to Article 17(4)(D) are made at paragraphs 18, 21 and 24. Rule 54 and the inherent jurisdiction of the Court are referred to at paragraph 36. 120. Without assessing in any way on the appropriateness of these legal grounds, the Appeals Chamber therefore fĳinds that Trial Chamber II fĳinding that the Motion

81 Para. 49 of the Impugned Decision. 82 Prosecutor v. Brima, Kamara, Kanu, Case No. SCSL-2004-16-T, Extremely Urgent Confĳidential Joint Motion for the Re-appointment of Kevin Metzger and Wilbert Harris as Lead Counsel for Alex Tamba Brima and Brima Bazzy Kamara, Pursuant to Articles 17(4)(C) and 17(4)(D) of the Statute of the Special Court for Sierra Leone and Rule 54 of the Rules of Procedure and Evidence and the Inherent Jurisdiction of the Court, 24 May 2005. (Emphasis added). interlocutory decisions – appeals chamber 1053 to re-assign was not motivated, is wholly erroneous and reverses the Impugned Decision on that aspect. Attempt to Reverse the Decision to Withdraw 121. Once again, the fĳinding made in the Impugned Decision, that the Motion to re-assign was indeed “an application to reverse a majority decision given by the Trial Chamber on 12 May 2005”83 relies on factual considerations by the Trial Chamber, namely that the Decision to withdraw granted all relief prayed for by the applicants and the “alacrity with which the accused and their Counsel and the Deputy Principal Defender sought to go behind that order and seek to reverse it.”84 122. Neither the fact that the previous oral ruling of 12 May 2005 on the application to withdraw, as confĳirmed by the written decision of 20 May 2005, did indeed grant all the relief claimed by the applying Counsel, nor the alacrity of the applicant to claim and then move the Trial Chamber for their re-assignment are challenged by the Appellants. The considerations of facts on which the Trial Chamber’s fĳinding that the application to re-assign was indeed an application to reverse the majority decision to withdraw Counsel are therefore not challenged by the Appellants. 123. In these circumstances, the Appeals Chamber fĳinds that the Appellants failed to demonstrate that the application to re-assign was not an application to reverse the majority decision of 12 May 2005 on the application to withdraw. 124. This being said, the Appeals Chamber does not fĳind that the sole fact that the application to re-assign was an attempt to reverse the decision on the application to withdraw makes it necessarily a “frivolous and vexatious” motion. An applicant whose application has been fully granted by a Chamber may have reasons to seek review of the Chamber’s decision when the circumstances which led to his or her application have changed. This opportunity to seek review of a decision by the same Chamber which rendered it, which is diffferent from the right to appeal the decision,85 is admitted in the jurisprudence of both sister International Tribunals. The Appeals Chamber of the International Criminal Tribunal for Rwanda clarifĳied the criteria for review in the following terms:86 […] it is clear from the Statute and Rules87 that, in order for a Chamber to carry out a review, it must be satisfĳied that four criteria have been met. There must be a new fact; this new fact must not have been known by the moving party at the time of the

83 Para. 50 of the Impugned Decision. 84 Idem. 85 ICTY, Prosecutor v. Tadic, Case No. IT-94-1-A, Decision on Appellant’s Motion for Extension of the Time-Limit and Admission of Additional Evidence (AC), 15 October 1998, para. 30. 86 ICTR, Prosecutor v. Barayagwiza, Case No. ICTR-97-19-AR72, Decision (Prosecutor’s Request for Review or Reconsideration) (AC), 31 March 2000, para. 41. 87 Article 25, Rules 120 and 121. 1054 part iii

original proceedings; the lack of discovery of the new fact must not have been through the lack of due diligence on the part of the moving party; and it must be shown that the new fact could have been a decisive factor in reaching the original decision. 125. This Appeals Chamber considers that the possibility to seek review of a previous decision when the circumstances have changed is broadly admitted at the international level. Beyond the jurisprudence of the other sister International Tribunals, Article 4, paragraph 2 of Protocol No. 7 to the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950) provides for the reopening of cases if there is inter alia “evidence of new or newly discovered facts.”88 Article 14 of the International Covenant on Civil and Political Rights (ICCPR)(1966) refers to the discovery of “newly or newly discovered facts.” The International Law Commission has also considered that such a provision was a “necessary guarantee against the possibility of factual error relating to material not available to the accused and therefore not brought to the attention of the Court at the time of the initial trial or of any appeal.”89 Finally, Article 84(1) of the Rome Statute of the International Criminal Court provides for the revision of judgements on the following grounds:90 “(a) New evidence has been discovered that: a. Was not available at the time of trial, and such unavailability was not wholly or partially attributable to the party making application; and b. Is sufffĳiciently important that had it been proved at trial it would have been likely to have resulted in a diffferent verdict; (b) It has been newly discovered that decisive evidence, taken into account at trial and upon which the conviction depends, was false, forged or falsifĳied; (c) One or more of the judges who participated in conviction or confĳirmation of the charges has committed, in that case, an act of serious misconduct or serious breach of duty of sufffĳicient gravity to justify the removal if that judge or those judges from offfĳice under Article 46.” 126. The facility to seek review on the ground of a change of circumstances has also been admitted for interlocutory decisions rendered in the course of trials.91

88 22 November 1984, 24 ILM 435 at 436. 89 Report of the International Law Commission on the work of its 46th session, Offfĳicial Records, 49th session, Supplement Number 10 (A/49/10) at page 28. 90 Article 84(1) of the Rome statute of the International Criminal Court. 91 ICTR, Prosecutor v. Barayagwiza, Case No. ICTR-97-19-AR72, Decision (Prosecutor’s Request for Review or Reconsideration)”(AC), 31 March 2000, para. 41; ICTR, Prosecutor v. Ndindiliyimana et al. (“Military II”), Case No. ICTR-00-56-T, Decision on Bizimungu’s Motion for Reconsideration of the Chamber’s 19 March 2004 Decision on Disclosure of Prosecution Materials, 3 November 2004, para. 21; Prosecutor v. Ndindiliyimana et al. (“Military II”), Case No. ICTR-00-56-T, Decision on Nzuwonemeye’s Motion for Reconsideration of the Chamber’s Oral Decision of 14 September 2005 on Admissibility of Witness XXO’s Testimony in the Military I Case in Evidence, 10 October 2005. interlocutory decisions – appeals chamber 1055

127. The Appeals Chamber therefore fĳinds that an application before Trial chamber II seeking review of the Decision to withdraw Counsel based on a change of circumstances may have been admissible and would not be per se “frivolous and vexatious.” This fĳinding is without prejudice of the fulfĳilment of the above mentioned criteria for review by the applicants, which would have been to be determined by the Trial Chamber. The Appeals Chamber notes that such an application should have been fĳiled by the applicants to the previous decision which review was sought, namely the withdrawn Counsel themselves, and not, as in the present case, their clients. However, in the view of the Appeals Chamber, this error on behalf of the Applicants and their Counsel is not sufffĳicient to conclude that the Motion to re-assign, although ill-conceived, was “frivolous and vexatious.” 128. As a conclusion on the Fourth and Fifth Grounds, the Appeals Chamber fĳinds that the applicants successfully demonstrated that the Trial Chamber erred in fact by stating that the Motion to re-assign had no clear legal basis and that the Motion was indeed based on Article 17(4)(C) and (D) of the Statute, Rule 54 and the Inherent Jurisdiction of the Court. The present fĳinding by the Appeals Chamber does not imply any judgement on the relevance of these legal bases. However, the applicants failed to demonstrate that the Trial Chamber’s fĳindings that the application to withdraw was not sincere and that the Motion to re-assign was indeed an application to reverse the Decision to withdraw could not have been reached by a reasonable trier of fact or were wholly erroneous. Nevertheless, the Appeals Chamber fĳinds that Trial Chamber II erred in law by considering that the fact that the Motion to re-assign was an application to reverse the Decision to withdraw did make this application “frivolous and vexatious.”

Defence Sixth Ground of Appeal 129. The Defence submits that the Trial chamber erred in law and/or in fact by considering that former Lead Counsel were not eligible to be re-appointed since they were no longer on the list of qualifĳied Counsel required to be kept under Rule 45(C), when their removal was efffected by the Registrar when the Motion to Re-Appoint was pending judicial consideration by the Trial Chamber. Accordingly, the Applicants pray the Appeals Chamber to declare the Registrar’s decision to remove Counsel from the list null and void as ultra vires, to declare that the Trial Chamber erred in law by considering that it had no jurisdiction to review this decision, and to review it.

The Acting Registrar’s Decision to remove Counsel from the List of Qualifĳied Counsel 130. The decision of the Registrar to withdraw Counsel from the List of qualifĳied Counsel referred to at paragraph 51 of the Impugned Decision results from several 1056 part iii correspondences attached to the submission of the Parties before the Trial Chamber. On 25 May 2005, Mr. Robert Kirkwood, the then Deputy Registrar, wrote in his capacity of Acting Registrar to Ms. Elizabeth Nahamya, Acting Head of the Defence Offfĳice:92 One of the main considerations for allowing Counsel to withdraw from the trial was the ongoing security concerns that counsel had for themselves. To date this matter has not been resolved nor have the counsel sought to have these matters investigated by court security. They represent an ongoing security issue for the court and at this point of time are not suitable to be considered as counsel in any trial before the court. Any request for an investigation into these security issues may take some months to satisfactorily resolve. In these circumstances it is not appropriate to have these counsel on the list of qualifĳied counsel. You are therefore directed to immediately remove Kevin Metzger and Wilbert Harris from the list of qualifĳied counsel who may be assigned as counsel. 131. On 26 May 2005, Ms. Elizabeth Nahamya responded to Mr. Robert Kirkwood:93 Regarding your order to me to withdraw Mr. Kevin Metzger and Mr. Wilbert Harris from the List of Qualifĳied Counsel, the Trial Chamber’s Order dated 12 May 2005 and the Decision rendering its reasons issued subsequently on 20 May 2005, did not make a judicial Order instructing the removal of Kevin Metzger and Wilbert Harris. Thus absent a judicial Order to that efffect or absent any adjudicated disciplinary fĳindings against Counsel, I cannot remove them from the List. The matter is again a judicial matter that must be decided by Lawyers and Judges. 132. On the same day at 5.33 p.m., Mr. Kirkwood sent an e-mail to Ms. Elizabeth Nahamya in which he wrote:94 Your concerns are duly noted and should judicial review overturn my order it is something I am prepared to accept full responsibility for. The order stands as of the date that it was issued to you and therefore Messrs. Harris and Metzger are no longer eligible for consideration.

Jurisdiction of the Appeals Chamber to Review the Decision of the Acting Registrar 133. The Appeals Chamber notes the caution taken by Trial Chamber II in the Impugned Decision which limits itself to the fĳinding that “it appears that the said Counsel are not eligible to be reappointed since they are no longer on the list of qualifĳied Counsel required to be kept under Rule 45(C).”95 It is true that the Trial

92 See Attachment 1 to the Registrar’s (First Respondent) Response to the Motion to Re-assign. 93 See Attachment to the Principal Defender’s Response to the Motion to Re-assign, pages 8923-8924. 94 See Attachment to the Principal Defender’s Response to the Motion to Re-assign, page 8922. 95 Para. 51 of the Impugned Decision. interlocutory decisions – appeals chamber 1057

Chamber was not seized, as the Appeals Chamber is, of a request to judicially review the decision of the Registrar to remove the Counsel from the List of Qualifĳied Counsel. The reason of this is that the Registrar took his decision to remove them from the List on 26 May 2005, when the Motion to re-assign was fĳiled on 24 May 2005. 134. Now the Applicants seek for the fĳirst time in this pending appeal a judicial review of the Registrar’s decision by the Appeals Chamber. It may be argued that such a new relief cannot be sought for the fĳirst time in appeal and shall therefore be denied. But the Appeals Chamber notes that the Parties did not raise any objection as regards this new request, that the Appellants had no knowledge, when they fĳiled their Motion to re-assign before the Trial Chamber, of that decision of the Registrar which was taken while the matter was pending before the Trial Chamber, and that they tried to challenge this decision before the Trial Chamber in a public hearing on the Motion, which was refused by the Trial Chamber. The Appeals Chamber therefore accepts to consider this new request. 135. The Appeals Chamber refers to its above fĳinding on the inherent jurisdiction of Chambers to judicially review administrative decisions afffecting the rights of the Accused. The Appeals Chamber restates that such inherent jurisdiction may be exercised only in the silence of the regulations applicable to the matter.96 136. The Appeals Chamber notes that Article 13(F) of the Directive provides: Where the Principal Defender refuses to place the name of the applicant Counsel on the List of Qualifĳied Counsel, or removes the name of Counsel from the List of Qualifĳied Counsel, the concerned Counsel may seek review, by the President, of the Principal Defender’s refusal. An application for review shall be in writing and the Principal Defender shall be given the opportunity to respond to it in writing. 137. For the reasons mentioned earlier as regards the Registrar’s decision not to re-assign Counsel, the Appeals Chamber considers that where the Registrar uses the powers he keeps in concurrence with the Principal Defender, he shall do so in the same conditions as the Principal Defender would. In particular, where the regulations provide that the Principal Defender’s decision may be reviewed, the concurrent decision of the Registrar is submitted to the same condition. 138. Therefore, the Appeals Chamber considers that, pursuant to Article 13(F) of the Directive, the review of the decision to remove a Counsel from the List of Qualifĳied Counsel, either taken by the Principal Defender or the Registrar, falls within the exclusive province of the President of the Special Court.

96 Prosecutor v. Norman, Fofana, Kondewa, Case No. SCSL-2004-14-T, Decision on Prosecution Appeal Against the Trial Chamber’s Decision of 2 August 2004 Refusing Leave to File an Interlocutory Appeal, 17 January 2005, para. 31–32. 1058 part iii

139. The Appeals Chamber therefore concludes that it has no jurisdiction to review the decision of the Registrar to remove Counsel from the List of Qualifĳied Counsel and denies the ground and the related relief.

Defence Seventh Ground of Appeal 140. In their seventh and last ground of appeal, the Appellants challenge the Trial Chamber’s ruling, in the Impugned Decision,97 that there were no grounds for submitting that any Judge recuse himself/herself from the deliberation on the Motion to re-assign. In this respect, the Appellants rely on Justice Sebutinde’s observations, in her dissenting opinion. 141. The Appeals Chamber refers to its fĳinding under the First Preliminary Issue raised in the current decision that, pursuant to Article 18 of the Statute, the concurring/dissenting opinions that are not properly “appended” to the decision they relate to and fĳiled together with it are not admissible and shall be disregarded. Justice Sebutinde’s Dissenting Opinion having been fĳiled after the Impugned Decision and separately, the Appeals Chamber considers that it is not admissible and accordingly disregards it. 142. As regards the oral consultation that was admittedly made by the Registrar to the Trial Chamber, the Appeals Chamber observes that the Registrar justifĳies its oral consultation of the Trial Chamber on the ground of Rule 33(B).98 Rule 33(B) provides: The Registrar, in the execution of his functions, may make oral or written representations to Chambers on any issue arising in the context of a specifĳic case which afffects or may afffect the discharge of such functions, including that of implementing judicial decisions, with notice to the parties where necessary. 143. The Appeals Chamber recognizes that in the exercise of its administrative functions and servicing of the Special Court pursuant to Article 16(1) of the Statute, the Registrar may need to confer with the Chambers from time to time. These consultations do not necessarily need to be made inter partes, namely in the presence of the Parties to the case. Rule 33(B) specifĳically provides that such notice to the Parties shall be made only “where necessary.” Such necessity may arise, in particular, where the interests of the Accused are concerned. 144. The Appeals Chamber notes the Defence Offfĳice’s submission that “contrary to Rule 33, the [Registrar] did not notify the Accused nor their Counsel about his consultation with the Trial Chamber yet the matter at hand was very crucial to their rights.”99 The Appeals Chamber agrees that, would this consultation have

97 Para. 33 of the Impugned Decision. 98 Para. 59 of the Registrar’s Response. 99 Page 20 of the Defence Offfĳice’s Response. interlocutory decisions – appeals chamber 1059 been crucial to the rights of the Accused, the Registrar should have notifĳied the Parties pursuant to Rule 33(B). 145. But the Appeals Chamber fĳinds that the oral consultation between the Registrar and the Trial Chamber was apparently limited to the re-confĳirmation of the Oral Decision to withdraw Counsel, which was rendered on 12 May 2005 and confĳirmed on 16 May 2005 and, in particular, the meaning of the consequential order to appoint another Counsel to each Accused pursuant to Rule 45(E). In those circumstances, the Appeals Chamber does not agree that this consultation, which appears to have been only motivated by the Defence Offfĳice’s insistence to re-appoint the same Counsel in contravention with the Trial Chamber’s express and repeated order to appoint another Counsel, was crucial to the rights of the Accused. The Appeals Chamber therefore concludes that there was no necessity to notify this consultation to the Parties pursuant to Rule 33(B). 146. For the foregoing reasons, the Appeals Chamber concludes that the Appellants failed to demonstrate that the Trial Chamber erred in law and/or in fact by stating in the Impugned Decision that there were no grounds for submitting that any Judge should have recused himself or herself. This ground is consequently dismissed in its entirety. FOR THESE REASONS THE APPEALS CHAMBER DECIDES that the Defence application for leave to appeal was fĳiled out-of-time, DECIDES that the Defence Notice of Appeal and Submissions in Appeal were fĳiled out-of-time, NEVERTHELESS DECIDES to determine on the merits of the Appeal, DECIDES that the Defence Offfĳice’s additional ground raised in Section IV, Sub- section 2 of the Defence Offfĳice’s Response is inadmissible; DENIES the Defence’s request in Reply not to consider Justice Doherty’s Comment appended to the decision granting leave to appeal; DENIES the Registrar’s Additional Motion in its entirety; PARTIALLY GRANTS the Appeal; FINDS that the Trial Chamber had jurisdiction to review the Registrar’s decision not to re-assign Counsel Metzger and Harris, BUT FINDS that the Trial Chamber correctly exercised its jurisdiction by dismissing the request to declare that decision null and void; FINDS that the Trial Chamber erred in fact by stating that the Motion to re-assign had no clear legal basis; 1060 part iii

FINDS that the Trial Chamber erred in law by considering that the fact that the Motion to re-assign was an application to reverse the Decision to withdraw did make this application “frivolous and vexatious”; DISMISSES the Appeal on all other aspects. Justice Ayoola, Justice King and Justice Robertson are appending their Separate and Concurring Opinions to the present Decision. Done at Freetown this day 8th of December 2005. THE APPEALS CHAMBER

Before: Justice Raja Fernando, Presiding Justice Emmanuel Ayoola, Justice George Gelaga King Justice Geofffrey Robertson, QC Justice Renate Winter Interim Registrar: Mr. Lovemore Munlo, SC Date: 8 December 2005 PROSECUTOR Against Alex Tamba Brima Brima Bazzy Kamara Santigie Borbor Kanu (Case No.SCSL-2004-16-AR73)

SEPARATE AND CONCURRING OPINION OF HON. JUSTICE AYOOLA ON THE DECISION ON BRIMA-KAMARA DEFENCE APPEAL MOTION AGAINST TRIAL CHAMBER II MAJORITY DECISION ON EXTREMELY URGENT CONFIDENTIAL JOINT MOTION FOR THE RE-APPOINTMENT OF KEVIN METZGER AND WILBERT HARRIS AS LEAD COUNSEL FOR ALEX TAMBA BRIMA AND BRIMA BAZZY KAMARA

First Respondent: Court Appointed Counsel for Alex Tamba Brima: The Registrar Kojo Graham Glenna Thompson Second Respondent: Court Appointed Counsel for Brima Bazzy Kamara: The Principal Defender Andrew K. Daniels Mohammed Pa-Momo Fofanah 1062 part iii

1. This appeal is from the majority decision of the Trial Chamber II (“the Trial Chamber”) (Doherty and Lussick, JJ; Sebutinde, J. dissenting), on the “extremely urgent confĳidential motion for the re-appointment of Kevin Metzger and Wilbert Harris as Lead Counsel for Alex Tamba Brima and Brima Bazzy Kamara (“the decision”). The decision was rendered by the Trial Chamber (Justice Sebutinde dissenting) on 9th June, 2005.

Background

2. On May 5, 2005 the Defence teams for accused person, Alex Tamba Brima and Brima Bazzy Kamara fĳiled a “confĳidential Joint Defence Submissions on the Withdrawal of Counsel in the AFRC case (“Joint Defence Submissions”). 3. By the Joint Defence Submissions the Defence teams prayed the trial Chamber to: a. approve the withdrawal of Counsel as Counsel for the Accused persons b. not order that Counsel hitherto on record be made Court Appointed Counsel, c. make any order that the Trial Chamber deems appropriate. 4. By the principal Defender’s Confĳidential Ex-parte Submissions Regarding Issues Pertaining to withdraw of Counsel (“Ex-parte Submissions”), the Principal Defender was not apposed to Mr. Harris and Mr. Metzger being temporarily designated from “Assigned Counsel” to “Amicus Counsel” until such time as they believe it is safe and efffective to retain their designation as Assigned Counsel.” 5. The Prosecution opposed all these requests but submitted that Defence Counsel should not be permitted to withdraw but, rather, should be directed to represent the Accused pursuant to Rule 6(i)(B). 6. The Trial Chamber rendered its decision permitting Mr. Metzger and Mr. Harris to withdraw from the case to which they have been assigned. It is evident from the decision that the ground which weighed most with the Trial Chamber as constituting exceptional circumstances was that of threats to Lead Counsel and their families. There were three other grounds which the Trial Chamber did not regard, by themselves, as constituting exceptional circumstances. The Trial Chamber was unanimous in the view that those three other grounds did not amount to exceptional circumstances. 7. Justice Doherty and Justice Lussick who rendered the majority decision stated as follows: Taken individually, we fĳind that the arguments put forward by Lead Counsel regarding their difffĳiculties, i.e. that their clients won’t come to court, that their clients will not give them instructions, that there is a deteriorating relationship, not helped by the possibility that they may be called to give evidence in contempt proceedings interlocutory decisions – appeals chamber 1063

against the clients’ wives, that they see themselves acting, in the circumstances, against the principles of their own Bar Code, do not constitute “the most exceptional circumstances” warranting the withdrawal of Counsel. However, when all of these problems are considered together with the threats hanging over their heads, the cumulative result, in our view, creates an intolerable situation which places Lead Counsel under an impossible burden. The Accused are charged with crimes of a most serious nature. They are entitled to the best Counsel available, Counsel who can fully dedicate themselves to their demanding task. We are of the view that Lead Counsel, with their present difffĳiculties, would not be capable of acting in the best interest of their clients. We doubt that they would be able to represent their clients to the best of their ability when, apart from everything else, they are concerned for their own safety and that of their families. Although we are loath to come to a decision which possibly may adversely afffect an expeditious trial, we are of the view that the rights of the Accused to be represented by counsel would best be served by appointing counsel able to carry out their duties free of the constraints inhibiting present Lead Counsel. (Italics mine)

8. In the event, the Trial Chamber granted the motion for the withdrawal of Lead Counsel Kevin Metzger and Wilbert Harris as Counsel for the Accused Brima and Kamara, respectively, and made consequential orders, inter alia, directing the Principal Defender to assign another Counsel as Lead Counsel to Alex Tamba Brima and another Counsel as Lead Counsel to Brima Bazzy Kamara. They made orders for representation of the two accused pursuant to Rule 60(B). 9. It is pertinent to note that Justice Sebutinde dissented, although that dissent is not of any importance in this appeal. She was unable to fĳind that threat to the accused had been substantiated or that either Mr. Metzger or Mr. Harris had demonstrated the most exceptional circumstances. I pause to note that although the majority decision which is the decision of the Trial Chamber had been rendered on 20 May 2005, the dissenting opinion of Justice Sebutinde which was not appended to the decision of the Court, was not given until 8 August 2005. In my opinion, an opinion, given so late after the decision of the Trial Chamber has been fĳiled and published could hardly be regarded as forming part of the opinions rendered in the case. To hold otherwise will create an indefĳinite, and unacceptable, uncertainty were a judge who has dissented at liberty to render and publish his or her dissenting opinion at his or her leisure, no matter how long after the Trial Chamber had announced and published its majority decision. If it is permissible to render and publish a dissenting opinion two months after the Trial Chamber has disposed of the matter, what stops it from being rendered one year or two years after! 10. I continue with the narration of the background facts. There was no appeal from the decision on the confĳidential Joint Defence Application for withdrawal of Counsel. The validity of that decision and the consequential order made is incon- testable in the present proceedings. 1064 part iii

The Present Proceedings

11. The present proceedings were initiated by a motion whereby the accused Alex Tamba Brima and Brima Bazzy Kamara sought the following orders: (i) In the fĳirst place the Defence herewith respectively prays the Trial Chamber to order the Registrar to ensure that Mr. Metzger and Mr. Harris are re-assigned as Counsel for Accused persons Brima and Kamara. (ii) In the second place, an order to the Acting Principal Defender to immediately enter into a legal services contract with Mr. Metzger and Mr. Harris. (iii) In the third place, that the Justice that re-confĳirmed the order not to re- appoint as indicated in the letter from the Registrar’s Legal Advisor recluse (sic) themselves from hearing this present motion. (iv) In the fourth place, an order to declare as null and void the decision of the Registrar not to re-assign Counsel as the decision was made without legal or just cause and therefore ought to be quashed accordingly and set aside. (v) In the fĳifth place, any other relief the Trial Chamber may deem fĳit and appropriate in the circumstance. 12. By its decision rendered on 9 June 2005 the Trial Chamber (Doherty and Lussick, JJ, Sebutinde, J dissenting) dismissed the motion. 13. Justice Sebutinde, once again, did not append her dissenting opinion to the decision of the Trial Chamber but fĳiled one on 11 July 2005 more than one month after the Trial Chamber had already rendered its decision. She wrote an opinion which was more like an appellate decision from the opinion of her colleagues. 14. In a decision which is commendable for its succinctness and which was directed to the issues in the Motion, the Trial Chamber having reviewed the submission of Counsel on behalf of the accused, of the Registrar and of the Principal Defender disposed of the motion as follows: i. In regard to the relief: That the Justices that reconfĳirmed the order not to re-appoint as indicated in the letter from the Registrar’s Legal Adviser recluse themselves from hearing this present motion, the Trial Chamber ruled that: There was no order made in the Trial Chamber refusing re-appointment of Counsel per se. The orders sought in the original application made for leave to interlocutory decisions – appeals chamber 1065

withdraw from the case. The orders were granted in full as sought and additional orders for, inter alia, appointment of Lead Counsel were made.

ii. In regard to the relief: That the Trial Chamber order the Registrar to ensure that Mr. Metzger and Mr. Harris are re-assigned as Counsel for Accused persons Brima and Kamara the Trial Chamber having stated that: In our earlier decision permitting Lead Counsel to withdraw, we found that the Accused were merely boycotting the trial and obstructing the course of justice. In our view, that is exactly what they are seeking to do in bringing the present motion. We do not believe that they genuinely wish to be represented by those particular counsel. We believe that their real motive is to cause as much disruption to the Trial as possible. The Trial Chamber went further to say: As the Deputy Principal Defendant has correctly stated, the duty to assign Counsel in the event of a withdrawal rests in the Principal Defender. However, we do not consider this entirely relevant as Rule 45(E) provides the appointment must be of “another Counsel. There is no provision for re-assignment of former Counsel in the event that they or their client, or both, have changed their mind. iii. In regard to the relief that an order be made to the Acting Principal Defender to immediately enter into a Legal contract with Messrs Metzger and Harris, the Trial Chamber re-iterated its earlier opinion that there is no provision for re-appointment and added the Trial Chamber has no power to interfere with the law relating to priority of contract. iv. In regard to the prayer that the decision of the Registrar not to re assign Counsel null and void as it was made without legal or just cause, the Trial Chamber disposed of that shortly by pointing out that that the Registrar had sought to uphold the order of the Trial Chamber order allowing Counsel’s application to withdraw and ordering another Counsel be assigned in accordance with Rule 45(E). It concluded that to argue that upholding and implementing a Court Order, made on application of the parties concerned is ‘without Legal or just cause’ is fallacious. 15. It is noteworthy that the Trial Chamber doubted the good faith of the statement by the Defence that the “circumstances where Counsel previously withdraw his services for stated reasons and circumstances have changed” given, as stated in the decision, that the application emanated from a letter from the accused purportedly written on the same day as the Trial Chamber’s order. 16. In the event, the Trial Chamber dismissed the motion which it described as not founded on bona fĳide motives and as one which sought to reverse an order granting relief which the Defence itself sought. It was in the light of these 1066 part iii fĳindings that the Trial Chamber considered the Motion to be frivolous and vexation.

The Appeal

17. The appeal from the decision was on seven grounds as follows: 1. First Ground of Appeal Error in law and/or fact due to the Trial Chamber’s erroneous interpretation, of the statutory rights of the accused persons as provided under Article 17(4)(c) and (d) of the Statute of the Special Court. The Defence submits that the appealed decision wrongfully denied the rights of the Accused persons to have counsel of their own “choosing” as provided for in Article 17(4)(d) of the Special Court Statute. 2. Second Ground of Appeal Error in law an/or fact due to the appealed decision’s denial of the Defence request for an Order to the Acting Principal Defender to enter into a legal services contract with Messrs. Metzger and Harris on the grounds the Trial Chamber has no power to interfere with the law relating to privity of contract. 3. Third Ground of Appeal Error in law and/or fact due to the ruling of the Trial Chamber that the Defence request for “an open and public hearing” is an application for further relief in a Reply and that “there has been no submission to support or explain this application for a public hearing.” 4. Fourth Ground of Appeal Error in law and/or fact due to the Trial Chamber’s erroneous legal interpretation of Rule 45(E) of the Rules of Procedures and Evidence of the Special Court for Sierra Leone (Rules) to prohibit re-appointment of former Lead Counsel. The ruling in this respect is entirely misplaced because the Original Motion was not a Rule 45(E) application. 5. Fifth Ground of Appeal Error in law and/or fact due to the Trial Chamber’s treatment of the Original Motion as an application for review of its earlier decision on Motion for withdrawal by Messrs. Metzger and Harris. The Defence is of the opinion that the Trial Chamber erred in law by not considering the original Motion as separate and distinct from the Motion for Withdrawal of Counsel. interlocutory decisions – appeals chamber 1067

6. Sixth Ground of Appeal Error in law and/or fact due the Trial Chamber’s decisions that “Counsel are not eligible to be reappointed since they are no longer on the list of qualifĳied Counsel required to be kept under the Rule 45(C). 7. Seventh Ground of Appeal The Trial Chamber erred in law and/or fact due its ruling that since “there was no determination of the issue of re-appointment of Counsel, there are no grounds for submitting that any Judge recuse him/herself. 18. By their notice of appeal the accused sought relief as follows: … the Defence respectfully prays the honourable Appeal Chamber to: i. Find the Appeal admissible. ii. Declaration that refusal of the Registrar and the Trial Chamber to re-appoint Messrs. Metzger and Harris as lead Counsel amounted to a violation of the Statutory rights of the Accused as provided in Article 17(4)(d) of the Special Court Statute. iii. Declaration that the Registrar’s decision against the re-assignment of Messrs Metzger and Harris and also the removal of their names from the list of eligible Counsel is ultra vires and null and void. iv. An order for the reinstatement of Kevin Metzger and Wilbert Harris on the list of qualifĳied Counsel. v. A declaration that the Trial Chamber has both the inherent jurisdiction and the power to review the Registrar’s decision not to reassign Messrs. Metzger and Harris as assigned Counsel as well as the Registrar’s decision to remove their names from the list of qualifĳied Counsel. vi. A declaration that Justices Doherty and Lussick, having advised the Registrar against the re-appointment of Messrs. Metzger and Harris should properly have recused themselves from hearing the Original Motion on their re-appointment. 19. Grounds of appeal must arise from the decision appealed from if they are to be relevant to the appeal. It is misconceived to complain that a tribunal erred in its decision or is erroneous in its fĳinding on an issue when such fĳinding has not been made. It is a diffferent thing if it is complained that the impugned decision is vitiated by absence of fĳindings on an issue that is relevant and material to the decision. That is not the complaint in any of the grounds of appeal. 20. In this case most of the grounds of appeal do not arise from the decision appealed from. Ground 1 complains of “erroneous interpretation of the statutory rights of the accused person as provided under Article 17(4)(C) and (d) of the Statute of the Special Court and that the decision wrongfully denied the rights 1068 part iii of the Accused to have counsel of their own ‘choosing’ .” However, a careful reading of the decision shows that it was not based on an interpretation of Article 17(4)(C). There was no controversy about the principle that the right to have legal assistance of assigned counsel does not carry with it an absolute right to any counsel. What was in issue was whether accused was entitled to insist on counsel, as counsel of his choice, when that counsel had– (i) been permitted to withdraw from the case on grounds stated; (ii) not applied to vary or discharge the order permitting him to withdraw and the consequential order that another counsel should be substituted for him, and (iii) not at all shown a change of circumstances from that that had constituted exceptional circumstances for permitting his withdrawal in the fĳirst place The Trial Chamber held that (i) there was no direct evidence from counsel permitted to withdraw that their circumstances have changed; (ii) that all the other factors the Trial Chamber considered in arriving at its decision were still in existence and (iii) that it was unclear on what legal grounds the application was made as it was not brought pursuant to Rule 45(D). 21. Instead of dealing with the grounds of the decision as summarized above, the defence dwelt on the question of the right of an accused to be represented by a counsel of his own choice, which in the circumstances of this case is a purely academic and hypothetical question, whereas the real question was whether the previous subsisting order and the ground on which it was made had not limited that right. 22. It was clear from the reasoning of the Judges who delivered the majority decision hat the accused could not claim a right to the particular counsel who have been permitted to withdraw from the case without fĳirst having the order, varied or rescinded. Nothing has been shown on this appeal in the grounds or in the submissions that that reasoning was erroneous. 23. The second ground of appeal sufffers from the same misconception as the fĳirst in that it ignored the preceding statement that there was no provision for re- appointment of counsel under Rule 45(E). My understanding of the reasoning of the Trial Chamber is that the power of the Trial Chamber to order a legal services contract with the particular counsel must be predicated on a statutory provision for their re-appointment, otherwise there would be no legal source of the power which the Defence had requested the Trial Chamber to exercise. The reference to privity of contract may not have been apt, but the idea it sought to convey when read in the context of the preceding statement is clear enough. The Defence should have challenged that preceding statement. They did not. 24. Put under close scrutiny, the remaining grounds may be found to sufffer from the same shortcoming, albeit to a lesser degree. interlocutory decisions – appeals chamber 1069

Issues on the Appeal

25. The issues that are decisive of this appeal are really few. They are as follows: (i) Whether Justice Doherty and Justice Lussick erred in not disqualifying themselves. (ii) Whether the Trial Chamber made an erroneous interpretation of Rule 45(E) or erroneously regarded the application as one brought pursuant to Rule 45(E). (iii) Whether the Trial Chamber misconceived the nature of the Motion by not considering the “Original Motion as separate and distinct from the Motion for withdrawal of Counsel.” (iv) Whether the statement that “Counsel are not eligible to be re-appointed since they are no longer on the list of qualifĳied counsel required to be kept under the Rule 45(C)” is correct in the circumstances of the case.

Deliberation

26. The question whether or not the two judges who delivered the majority decision should have disqualifĳied themselves by reason of alleged bias or reasonably doubt as to their impartiality arose from the relief sought in the Trial Chamber that “the Justices of the Trial Chamber who reconfĳirmed the order not to re- appoint Counsel as indicated in the letter from the Registrar’s Legal Adviser should disqualify themselves. The ground for this relief was that the said Judges having previously ordered that Mr. Metzger and Mr. Harris were not to be reappointed as Defence Counsel, would not be in a position to adjudicate upon the Motion by the defence to re-instate them fairly and impartially. 27. The background facts can be briefly stated: The Deputy Principal Defender in a memorandum to the Registrar informed him on 17 May 2005 that although Mr. Metzger and Mr. Harris had been permitted to withdraw from the case, the accused persons had chosen them as their Counsel. She was inclined to re-appoint them as Lead Counsel for the accused persons instead of assigning new Counsel to the accused. On 18 May 2005 the Registrar wrote a memorandum to the Presiding Judge of the Trial Chamber as follows: Justice Doherty, as promised, this is the formal update by the Defence Offfĳice as to the present position on Metzger and Harris. As I have mentioned to you, as a matter of expediency, there are reasons which would support their return. But from the long term conduct of the trial, and considering both Counsels’ performance and demeanor, my view is that it would be counter-productive to reassign them. One point I would like to put to you for your advice is the issue of who, ultimately, has the fĳinal word on this. Whilst it is clear from the Directive on Assignment of Counsel that the Principal 1070 part iii

Defender and I have a major role, I cannot believe that a Trial Chamber does not have at least a say if not the fĳinal say.”[underlining mine] By an inter-offfĳice memo of 18 May 2005 the Presiding Judge wrote as follows: Re-Appointment of Mr. Kevin Metzger and Wilbert Harris as Lead Counsel: This matter was already brought orally to the Court and the following order made on 16th May 2005: “This Court read an order on an application. The application was an application to withdraw. That order was made and any letters, correspondence or documents that seek to go behind that decision cannot be countenanced in this Court. The decision has been made.” That ruling stands and the order stands. The Court will not give audience to Counsel who make an application to withdraw on one day on various grounds, particularly security and then come back the day after and basically say they retract. They cannot make fools of the Court like this, nor can they do it in a “back door” way through the Principal Defenders and the Registrar’s power to appoint Counsel. 28. In his memorandum of 17 May 2005 to the Presiding Judge earlier referred to the only question on which the Registrar sought assistance from the Presiding Judge was “who ultimately has the fĳinal word on this. Whilst it is clear from the Directive on Assignment of Counsel that the Principal Defender and I have a major role, I cannot believe that the Trial Chamber does not have at least a say, if not the fĳinal say.” 29. The Registrar’s enquiry should not be read out of context. The enquiry was made in the context of a subsisting order of the Trial Chamber that another Counsel be appointed. The Registrar, a highly experienced judicial administrator, was perfectly in order in his view that the Trial Chamber has at least a say if not the fĳinal say in a matter that afffected its order. He would have risked committing a contempt of the Trial Chamber if he had not taken the precaution of enquiring before he acted. He acted appropriately pursuant to Rule 33(B). 30. The response of the Presiding Judge cannot be faulted. It was merely to restate the existing state of afffairs about which there could not have been be any reasonable dispute, namely: (i) an order has been made permitting Mr. Metzger and Mr. Harris to withdraw from the case (ii) Counsel who obtained that order cannot turn round to seek reappointment, without much more. The opinion which in substance meant that the Counsel could not be allowed to approbate and reprobate cannot be faulted. No self respecting tribunal would allow its process to be trivialized and brought to ridicule. 31. However, in fairness to Mr. Metzger and Mr. Harris, they did not apply to be re-appointed as counsel, and so they had no cause to show that the circumstances interlocutory decisions – appeals chamber 1071 had changed and when and how.. They merely gave an indication that they would be prepared to act on condition that their security concerns were taken care of. 32. Mature consideration would show that there was really no question of bias or reasonable apprehension of impartiality by Justice Doherty or Justice Lussick. The two Judges had restated existing and known facts. They made obvious statements, which well interpreted, was in fact a statement of principle regarding a court protecting its order from being treated with contempt. The Registrar’s enquiry as to whether the Trial Chamber had a say or fĳinal say in the matter was not even directly considered in their response. The issue in the present defence motion which was whether a right of choice of Counsel extended to a right to choose counsel who has been permitted to withdraw from the case with a consequential directive that another counsel be appointed, while the order and the consequential directive subsisted, were not raised by the Registrar’s memorandum nor was it addressed by the Presiding Judge’s response. 33. There was really no basis, whatsoever, for the charge of bias or likelihood of partiality made against Justice Doherty and Justice Lussick by Justice Sebutinde in her dissenting opinion which was adopted by the defence. It was unfortunate that such an allegation was hastily and without an iota of justifĳication made against the two highly experienced and competent Judges without proper analysis of the memoranda and the circumstances. Had the two judges not been denied the opportunity of discussing Justice Sebutinde’s opinion perhaps a lot of misconceptions would have been cleared. 34. I fĳind no substance in the submissions of the defence that Justice Doherty and Justice Lussick should have disqualifĳied themselves. 35. The remaining issues can be dealt with shortly. There is no substance in the submissions that the Trial Chamber made an error in interpretation of Rule 45(E). Indeed, it had not been shown where that error occurred. The Trial Chamber took the trouble to show the ordinary meaning of “another” as “diffferent from the one already mentioned.” It has not been shown that they were wrong. 36. In regard to the nature of the defence motion, it is clear that although it was not a motion for withdrawal of counsel, the order permitting withdrawal of counsel and the consequential directive are relevant to the motion. It was in that context that the Trail Chamber discussed the matter of withdrawal of counsel and found that there was no direct evidence that their circumstances have changed. The complaint that they misconceived the nature of the motion is without substance. 37. That statement that “Counsel are not eligible to be re-appointed since they are no longer on the list of qualifĳied Counsel” was one of several reasons for 1072 part iii dismissing the motion. The other reasons were valid. Even if the impugned reason were erroneous that would not afffect the result.

Conclusion

38. I have confĳined myself to issues which I fĳind arise from the appeal. I have refrained from discussing the question whether the Trial Chamber could review the decision of the Registrar because I do not see the Defence Motion as a request for a review. If it can be said to be a request for a review, I am content to agree with the decision of the Appeals Chamber that it was rightly rejected. 39. I agree with the decision that the appeal be dismissed and append to it this concurring opinion to express my views on some of the issues. Done at Freetown this day 8th day of November 2005. THE APPEALS CHAMBER

Before: Justice Raja Fernando, Presiding Justice Emmanuel Ayoola Justice George Gelaga King Justice Geofffrey Robertson, QC Justice Renate Winter Interim Registrar: Mr. Lovemore Munlo, SC Date: 8 December 2005 PROSECUTOR Against Alex Tamba Brima Brima Bazzy Kamara Santigie Borbor Kanu (Case No.SCSL-2004-16-AR73)

SEPARATE AND CONCURRING OPINION OF JUSTICE ROBERTSON ON THE DECISION ON BRIMA-KAMARA DEFENCE APPEAL MOTION AGAINST TRIAL CHAMBER II MAJORITY DECISION ON EXTREMELY URGENT CONFIDENTIAL JOINT MOTION FOR THE RE-APPOINTMENT OF KEVIN METZGER AND WILBERT HARRIS AS LEAD COUNSEL FOR ALEX TAMBA BRIMA AND BRIMA BAZZY KAMARA

1. I concur in the result that this appeal be dismissed, although I reach that conclusion on the ground that the motion is an abuse of process, namely a collateral attack on a judgement (that of 20 May 2005) which can only be altered by way of an application to appeal it or revise it, and not by attempting to stop the Registrar from implementing it. I have explained my reasoning in this separate judgement, which deals additionally with a number of important issues that have been fully argued in submissions but have not been addressed in the majority opinion. 2. This interlocutory appeal has generated over 1,000 pages of evidence and argument. It has been costly and time consuming for a court which has little time or money to spare. It has evoked internecine disputes amongst the judges of Trial Chamber II, a heated disagreement between the Defence Offfĳice and the Registrar, and severed – then patched up – relationships between counsel and their clients. The only party to emerge unscathed is the prosecution, which sensibly avoided involvement in the imbroglio which ensued when two lead defence counsel sought to withdraw from the AFRC case, claiming to be in fear for their lives. With the hindsight from which an Appeal Chamber always benefĳits, some of the actions in the court below can be seen as precipitate or ill-advised. In so describing them I do not wish to underestimate the serious and novel ethical problems that can unexpectedly arise in defending people who do not wish to be defended, in a war- crimes court sitting in what was, until recently, a war zone. 3. This judgement begins by making some preliminary points about dissenting judgements and confĳidential motions in Trial Chambers. There will follow an account of the facts, and then consideration of certain important issues which have arisen in the course of the appeal and have been fully argued, touching the right to counsel and the role of the Defence Offfĳice. Although I fĳind that the Appeal itself goes nowhere – it is brought to review judicially a Registrar’s decision, rather than as an appeal against the court order which his decision implemented – nonetheless it has raised in its course a number of issues of general importance for war crimes courts in relation to the duties owed by defence counsel and the extent to which a Trial Chamber may direct the Registrar in respect of his administrative decisions.

Preliminary Issues

A) Filing of Dissenting Judgements 4. This appeal has exposed a systemic procedural aberration in both Trial Chambers, namely a tendency for dissenting judgements, and sometimes individual concurring opinions, to appear weeks and even months after publication of the court’s decision. In this appeal, for example, the Trial Chamber’s majority decision was delivered by Judges Doherty and Lussick on 9 June 2005; Judge interlocutory decisions – appeals chamber 1075

Sebutinde’s dissent was not published until 11 July. The Trial Chamber decision to permit the withdrawal of counsel – the decision which should have been the subject of this appeal – was delivered by the same majority on 20 May 2005, but Judge Sebutinde did not vouchsafe her dissent until 8 August – two and a half months later. Upon enquiring into the records, it appears that similar delays have occurred in delivery of decisions in Trial Chamber I. The late fĳiling of individual judicial opinions seems to have become a habit in both chambers.1 It must stop immediately, for a number of reasons. 5. The fĳirst reason is that it is in breach of the Statute of the Special Court for Sierra Leone, which is this court’s constitution. Article 18 states: The judgement shall be rendered by a majority of the judges of the Trial Chamber… It shall be accompanied by a reasoned opinion in writing, to which separate or dissenting opinions may be appended. By no stretch of language can a dissenting opinion be said to be “appended” to a decision of the court when it is fĳiled two months after that decision. “Appended” means annexed or attached to, i.e. added in writing at the end.2 Article 18 does not comprehend the delivery of a separate or dissenting opinion at some later date. 6. Quite apart from the Statute, simultaneous delivery of judicial opinions has been the invariable practice in this Appeal Chamber and in other international courts, and in the Supreme courts of nations with developed legal systems. It is not only good administrative practice, but essential for fairness to the parties:

1 In the CDF Case, Dissenting Opinion of Judge Pierre Boutet on Decision on the Prosecution’s Application for Leave to File an Interlocutory Appeal Against the Decision on the Prosecution’s request for Leave to Amend the Indictment of Samuel Hinga Norman, Moinina Fofana and Allieu Kondewa, 5 August 2004 (Decision on 2 August 2004); Dissenting opinion of Hon. Judge Benjamin Mutanga Itoe, presiding judge, on the chamber majority decision supported by Hon. Judge Bankole Thompson’s separate but concurring opinion, on the motion fĳiled by the Second Accused, Moinina Fofana, for service and arraignment on the consolidated indictment and a second appearance, 13 December 2004 (decision on 6 December 2004); Dissenting opinion of Hon. Judge Benjamin Mutanga Itoe, presiding judge, on the chamber majority decision supported by Hon. Judge Bankole Thompson’s separate but concurring opinion, on the motion fĳiled by the Third Accused, Allieu Kondewa, for service of consolidated indictment and a further appearance, 13 December 2004 (Decision on 8 December 2004); Confĳidential Dissenting Opinion of Justice Itoe on Majority decision Regarding Witness TF2-218, 19 September 2005 (Decision on 15 June 2005). In the RUF Case, Dissenting opinion of Judge Thompson on decision on application for leave to appeal – Application to withdraw counsel, 7 September 2004 (Decision on 3 August 2004); Partially dissenting opinion of Hon. Justice Benjamin Mutanga Itoe on the chamber majority decision of the 9th of December, 2004 on the motion on issues of urgent concern to the accused Morris Kallon, 18 March 2005 (Decision on 9 December 2004). In the AFRC Case, Separate and dissenting opinion of Justice Sebutinde in the decision on the confĳidential joint Defence motion to declare null and void the testimony of Witness TF1-023, 8 August 2005 (Decision on 25 May 2005); Separate and Concurring Opinion of Justice R.B. Lussick on Brima-Kamara Application for Leave to Appeal from decision on the Re-appointment of Kevin Metzger and Wilbert Harris as Lead Counsel, 14 September 2005 (Decision on 5 August 2005). 2 See Concise Oxford Dictionary: the verb append means “hang on, annex, add in writing (from the Latin “appendere,” and hence appendage), “a thing attached; addition; accompaniment.” 1076 part iii how else are they to know whether and how to appeal, or how otherwise to conduct themselves, until they are able to read all the judgements in a case? It is also essential for collegiality: the public and the parties are entitled to expect judges to discuss each other’s opinions with open minds, and to consider points made in each other’s drafts. How can the necessary collegiality be maintained when one judge declines to submit a draft to colleagues, yet publishes a critique of their effforts, in the form of a dissent, several months later? In this case, we have the spectacle of one judge belatedly making factual assertions to which her colleagues have taken issue, and they have given their diffferent version of events at the only time possible to bring them before the appeal chamber, namely when granting leave to appeal. Moreover, the practice has led to confusion as to the point from which time-limits for appeal are to run: is this from the date of the decision of the court (i.e. the majority), or the date on which the last judicial opinion in the case is fĳiled? 7. This problem can be illustrated by the present appeal. Rule 73B provides that any application to appeal an interlocutory decision must be made “within three days of the decision.” The decision, obviously, is that of the court, whether unanimous or by majority. The court’s majority decision in this case was rendered on 9th June 2005 and the time for interlocutory appeal ran out on 12th June, by which point no such appeal had been lodged. The application was not made until 14th July, well out of time but within three days of the dissent fĳiled by Judge Sebutinde on 11th July – this dissent evidently inspiring the application. The Trial Chamber granted leave notwithstanding, although Judge Lussick noted that technically the application was out of time. In future, time limits for interlocutory appeals should be strictly enforced and practitioners and judges must realise that time runs from the date at which the reasoned judgement of the court is fĳirst delivered to the parties. 8. The practice that seems to have developed in both Trial Chambers must not continue. This Appeal Chamber should henceforth not read dissents or concurring opinions which are not “appended” to the court decision. It is often necessary for a Trial Chamber to give an ex tempore, “offf the cufff” decision with reasons to follow later, and this practice is to be encouraged in the interests of expedition of trial proceedings. But the delay should at most be measured in weeks, and never in months: it is the primary role of Trial Chamber judges to get on with the trial as fairly and expeditiously as possible, and only to produce lengthy interlocutory dis- quisitions on interesting points of law in the rare case where this is necessary, for fairness and expedition. Otherwise, such academic exercises should be left to the Appeal Chamber, which is best placed to consider them. The Trial Chamber should dispense practical legal wisdom in language comprehensible to defendants as well as counsel, and dispense it either on the spot or shortly after oral or written argument. It is the function of the Presiding Judge to ensure that Trial interlocutory decisions – appeals chamber 1077

Chamber judgements are expeditiously delivered, and there are obviously limits to the time (which I would measure in weeks – four at the outside) that a dissenter can be permitted to take to produce an opinion to be “appended.” If a dissenter cannot write his or her opinion within a reasonable time, then the Presiding Judge would be entitled to proceed to fĳile the court’s decision: the dilatory dissenter would lose his or her conditional right under Article 18 of the Statute to “append” reasons to justify their dissent. That Article provides that “separate or dissenting opinions may be appended” (my italics) and “may” does not mean “must.” A tardy dissenter cannot be allowed to hold up the delivery of a judgement. But if the dissent is ready at much the same time as the majority decision, the judgements should all be published simultaneously. The majority, or the Presiding judge, have no power to prevent publication of a dissent which is available, within reasonable time, to be “appended.” 9. The importance of collegiality must be emphasised. Each judge is independent, but a condition of independence is a willingness to consider the arguments of colleagues. Where opinions difffer, collegiality requires at least a consideration of other arguments and a willingness to divulge and discuss drafts before the judgements are published, all within an atmosphere of good faith. Any allegations of impropriety against judicial colleagues should be made to the President of the Court. Rule 29 should be respected, at least in keeping documentary communications between judges confĳidential. These principles are readily observed in national courts, where judges (however much their personalities clash) emerge from the same professional background: they should apply in international courts, notwithstanding diffferences in approach and experience between judges from diffferent national systems.

B) Confĳidential Filings 10. The other point of general importance that emerges from scrutiny of the record in this Appeal is the unsatisfying and somewhat cavalier approach to the fĳiling of “confĳidential” motions and responses. The Special Court, like all true courts, has a rule that presumes that its justice will be done in public and that unless very good reasons are advanced and accepted, the evidence and arguments will be accessible to the public. This not only presumes that hearings will be in open court but that all motions and responses and documentary material submitted to the court will be placed on an open fĳile. There may, on occasion, be good reason to keep such material confĳidential to the parties, but that good reason must be established in open court and secrecy must be limited to what is absolutely necessary to serve the purpose for which it is ordered.3 In this case, however, the written motions by lead counsel to withdraw from the case, and the responses

3 See Attorney General v. Leveller Magazine Limited (1979) A.C. 440. 1078 part iii by the Principal Defender and the prosecution, were all designated and treated as “confĳidential” – with the consequence that the arguments before the Trial Chamber on the withdrawal application cannot be appreciated, other than by passing references in the majority and minority judgements. 11. From a study of the transcripts, it appears that lead counsel Mr. Metzger fĳirst trailed the need for a “closed session” for what he described as “sensitive matters” in open court on 6th May 2005 – the last of three open hearings of his application to withdraw. The prosecution assumed that this “sensitivity” related to lawyer- client confĳidentiality and its concern was only to ensure that its counsel had access to any material that would be considered by the court. The Trial Chamber, without hearing further argument, ordered that “All documents are to remain confĳidential. Oral submissions, if any, relating to matters of a sensitive nature shall be in closed session.”4 Thereafter, submissions in what was labelled “The Confĳidential Joint Defence Application for Withdrawal by Counsel for Brima and Kamara” were fĳiled and circulated in secret. Article 4B of the Practice Direction on Filing Documents provides that documents fĳiled as “Confĳidential” should indicate the reason for confĳidentiality on a Court Management Form, and “The Judge or chambers shall thereafter review the document and determine whether confĳidentiality is necessary.” I have seen no evidence of compliance with Article 4B in this case. Where is the decision reviewing the claim for “confĳidentiality”? Henceforth, confĳidential fĳilings should explain, at the outset, the reasons for the claim of confĳidentiality, and chambers must give judgements – in open court as far as possible – upholding or rejecting the claim. 12. Trial Chambers and all who practice in them are reminded of the fundamental importance of the open justice principle. In the words of Jeremy Bentham, “Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all safeguards against improbity. It keeps the judge himself, while trying, under trial.” Not only the judge, of course, but counsel and other professionals who must also be subject to informed public scrutiny, especially in a case of this kind where they sought permission to withdraw from a trial commitment that they had undertaken both professionally and contractually. The open justice principle serves other forensic interests: publicity deters perjury and encourages witnesses to come forward, while resultant media reportage enhances public knowledge and appreciation of the workings of the law. Trials derive their legitimacy from being conducted in public: judges preside as surrogates for the people who are entitled to scrutinise and approve the power exercised on their behalf. No matter how fair, justice must still be seen before it can be said to be done.

4 See AFRC transcript, p. 15. interlocutory decisions – appeals chamber 1079

13. There will, in war crimes courts which sit in countries recently torn asunder by war, always be occasions when justice can only be done if certain evidence is withheld. For example, the identity of protected witnesses or of sources of information may have to be suppressed. When that is done, however, the suppression order must be strictly limited to what is necessary to serve the overriding security interest. It follows that applications for the confĳidentiality of hearings or of motions should be made in public and the reasons explained so far as possible in open court. Counsel for other parties should be alert to resist unnecessary secrecy applications, unless persuaded of their merit. The court should consider such applications with the above principles in mind and grant them only, and only to the extent that, secrecy is essential. In this case, the prosecution did not demur and the court made no enquiry as to the nature of the “sensitivity” and whether, for example, confĳidentiality was really being sought for the illegitimate reason of protecting counsel from embarrassment. The court order clothed with secrecy some important and novel submissions that could and should have been advanced in open court. 14. Given that the Defence had labelled its motion “confĳidential” it was ironic that belatedly, in the Reply, the Defence should urge the Trial Chamber to order an oral hearing so that the matter could be ventilated in public. This application was misconceived since all hearings must presumptively be held in open court: see Article 17(2) and Rule 78. The point to which the Defence request should have been directed was whether there needed to be a “hearing” at all. Motions will only be “heard” – with all the consequent delay in assem- bling the court and the expense of paying counsel and court stafff – if the judges think that oral argument is necessary to assist their decision-making, e.g. by questioning counsel or hearing live evidence or further oral development of an argument. There had been oral hearings enough on this matter and the Trial Chamber judges were perfectly entitled, in their discretion, to reject the request because they had no need of the assistance of counsel to decide the legal issues raised by the motion. There is, however, one rule of prudence that judges should try to follow, namely that if they are minded to make a serious criticism of a lawyer or court offfĳicial that goes to his integrity rather than to his tactical sense or ability, it is only right and fair to “hear the other side.” In advancing their state of fear as a reason for withdrawal, Messrs Harris and Metzger were open to comment and criticism, but the Trial Chamber’s conclusion that they were “insincere” in making this application suggests they were guilty of unprofessional conduct. Fairness required that these two advocates at least be given an opportunity to refute this allegation, which had not been suggested in the written submissions of other parties. It was not, as it turned out, a fĳinding that was necessary for the Trial Chamber’s decision to dismiss this motion, which could be amply supported on other grounds. 1080 part iii

The Facts

15. Although this appeal has produced a great deal of evidence and argument, the key facts can be summarised quite shortly. In March 2005, in the AFRC case, there was an unfortunate incident when a protected witness was threatened after court by four women, including the wives of the two appellants. The women were arrested, together with an investigator for the defence team who was accused of betraying the identity of this witness. The Trial Chamber suspended the investigator and barred access by the women to the public gallery. It ordered an independent counsel to consider the matter, received his confĳidential report and authorised him to prosecute all fĳive persons for contempt. In taking these steps, so the Appeal Chamber subsequently held, the Trial Chamber acted properly and reasonably and according to the Rules of Evidence and Procedure.5 However, its actions understandably upset the defendants, who were personally blameless, but upset them to such an extent that they boycotted the trial by refusing to come to court. They withdrew all instructions from their counsel, other than instructions to appeal all of the Trial Chamber decisions in relation to the contempt matter. By these actions, they sought not merely to protest the Trial Chamber decision, but to disrupt the adversary process of their own trial, so it could not continue efffectively (i.e. with fully instructed counsel testing the prosecution evidence) until either the Trial Chamber reversed its decision to authorise the contempt prosecution, or the appeal against that authorisation was decided by the Appeal Chamber – some months in the future. No court can buckle under this kind of pressure from defendants and although some allowance might be (and in this case, was) made so that they could reconsider their boycott and discuss its consequences fully with their counsel, it must be said that this disruptive action of the defendants initiated the unhappy series of events that followed. 16. As the defendants must have realised, their withdrawal of instructions put their lead counsel in some professional difffĳiculty. It is not easy for any barrister bred, like Messrs Harris and Metzger, in the traditions of the English bar to conduct a defence without the full confĳidence and support of his client. When that confĳidence is lacking or where other “professional difffĳiculties” arise (this phrase being sometimes a euphemism for a client’s inadvertent admission of guilt), a barrister’s conscientious decision to withdraw is usually accepted by English criminal courts. However, for reasons which will be explained below, international criminal courts cannot and do not adopt the same permissive attitude. From bitter

5 See Prosecutor v. Brima et al., Case No. SCSL-04-16-AR77, Decision on the Defence Appeal Motion pursuant to Rule 77(J) on both the Imposition of Interim Measures and an Order pursuant to Rule 77(C)(iii), 23 June 2005; Prosecutor v. Brima et al., Case No. SCSL-04-16-AR77, Decision on the joint Defence Appeal against the Decision on the Report of the Independent Counsel pursuant to Rule 77(C)(iii) and 77(D), 17 August 2005. interlocutory decisions – appeals chamber 1081 experience, they have made strict rules about this situation. In this court, the relevant rule is found in Rule 45: Counsel shall only be permitted to withdraw from the case to which he has been assigned in the most exceptional circumstances.

The Application for Withdrawal 17. After wrestling with their clients and their consciences, two lead counsel – Messrs Harris and Metzger – decided that they could not continue. They made their application to withdraw from their contractual and professional engagement on four grounds. Principally, they claimed that withdrawal of their instructions by their clients put them in an impossible ethical position. Secondly, they asserted – somewhat faintly – a potential embarrassment should they be sum- monsed to appear as witnesses in the contempt proceedings. Thirdly, and mistakenly, they urged that they would be in potential conflict with the code of conduct of the English Bar. Fourthly, and dramatically, they claimed to have received threats to their lives and that of their families. They declined to give any details of these threats, which had never been mentioned to court security or to the Registrar. All they said was that the threats had not emanated from defendants and were directed against “all court-appointed counsel working at the Special Court.” Mr. Harris added that he had received three telephone calls threatening his safety – he declined to say from whom. This was a point capable of argument – I can fully understand the risks inherent in defending in international criminal proceedings – but in this case neither counsel seems to have argued that the Court could not discharge the duty imposed on all international criminal courts to ensure the safety of all parties involved in the trial process (be they prosecutor or defence advocates, witnesses, court stafff, defendants or judges). 18. The Principal Defender opposed this application: the interests of justice required that the lead counsel be held to their contracts and any concern for their safety might be met by redesignating them as “amicus” counsel rather than as lead counsel. The prosecution submitted that the four grounds, whether individually or conjunctively, fell far short of “the most exceptional circumstances” which alone would justify the disruption, expense and unfairness of permitting them to withdraw. 19. On 12th May the Chamber delivered orally its majority decision, with reasons to follow later. It granted the two lead counsel their application to withdraw and it directed the Principal Defender, who was in court, to assign new lead counsel. “We are confĳident that the co-counsel can carry the case in the meantime, as they have been doing for long sessions in any event” said Judge Lussick. “Thank you for that clarifĳication” said the Principal Defender. “That just leads me to know that we have to assign other people in due course.” The situation, it might have been 1082 part iii thought, at this point was clear: the motion had been granted and Messrs Harris and Metzger had been permanently removed, at their own request, from the case and from the court. 20. This order would have administrative repercussions, of course. Their names had been on a “list” of available defence counsel which is kept by the offfĳice of the Principal Defender (the “Defence Offfĳice”), and in due course and as a purely tidy-up exercise, their names would have to be removed, since they had made themselves unavailable and the Court had ordered that they be replaced. Clause 13(b) of The Directive on the Assignment of Counsel defĳined those barristers eligible for inclusion on the list: paragraph 13(b)(v) says specifĳically that they “must … have indicated their willingness and availability to be assigned by the Special Court to an accused.” Since Messrs Harris and Metzger had spent the proceeding fortnight forcefully indicating their unwillingness to be so assigned, they had efffectively removed themselves from the list in any event. There was a court order that they should be replaced and the only way they could revert to their pre- existing role would be to approach the court and persuade it to rescind or vary that order. On 12th May, the Court had plainly ordered that the trial would continue with co-counsel, and fresh lead counsel would in due course be instructed by the Principal Defender. 21. The situation was clear and all that was needed to make it pellucidly clear was the court’s reasoning, to explain which of the four grounds had led it to take the wholly exceptional step of permitting these two lawyers to abandon their clients. Since most of the argument had been directed to the primary ground, i.e. withdrawal of instructions, the Principal Defender might be forgiven for thinking that this was the basis of the court’s decision. When the reasons for the decision were delivered, 8 days later (20th May) it transpired that this ground had been fĳirmly rejected and the court had made its order solely on the fourth ground, i.e. that the two counsel were in a state of fear. Had that fact been known, even in outline, on 12th May, the subsequent confusion might have been less confounded. Events between Decision (12 May) and Reasons (20 May) 22. This was not known, because on 12th May the court did not even give short reasons for its decision. At some time later that day the two defendants did a volte face. They wrote to the Principal Defender, with copies to Harris and Metzger, a letter that is dated 12 May: We now deem it necessary to withdraw the limited instruction and instruct them to fully participate in our case, as there was a good relationship existing between us, as lawyer and client, and we have confĳidence, truth and belief in them as our lead counsel. We want to maintain our two lead counsel more so as they have spent a lot of time working on our case and already have started interviewing our witnesses. In the interlocutory decisions – appeals chamber 1083

light of the fact that we want this case to end with out any undue delay as we are young men who want to continue with our lives after this case, we do not want new counsel to be brought in at this trail (sic) stage. In the least we have some information on the contempt of proceedings. We have also implored our lawyers to come back to court. We would join them at a later stage in court. 23. The lawyers in the Defence Offfĳice believed that the withdrawal of instructions had been the reason for the court’s decision, so they thought that restoration of those instructions, as indicated by the letter, should have the efffect of reversing the order. So on 16th May an assistant Principal Defender, Ms. Claire Carlton- Hanciles, appeared before the Trial Chamber and sought to table the defendant’s letter. She was given very short shrift: The order was made. Any letters, correspondence or documents that seek to go behind that decision cannot be countenanced in this court. The decision was made. 24. The court’s refusal to “enter into correspondence” was understandable, since it was doubtless in the process of fĳinalising its reasoned judgement. Nonetheless, it was regrettable that the Trial Chamber did not take this opportunity to consider the change of circumstances and to invite Mr. Harris and Mr. Metzger to attend court if they had any application to vary the order. The court’s incantation that “the decision was made” may reflect an entirely mistaken notion that it had no jurisdiction to reconsider its order. As will be explained (para. 49): every court may, if justice requires, vary or rescind an earlier order or reconsider an interlocutory decision because of fresh evidence or changed circumstances. However, in the absence of any application from Harris and/or Metzger, no such reconsideration would have been fruitful, given the reasoning – as yet, unrevealed – upon which the Trial Chamber majority had decided this matter. 25. The public defenders, sent offf from court with a flea in their ear on 16th May, were not prepared to give up. They were committed to the interests of Brima and Kamara and believed that these interests would be best served by reassigning their counsel of choice, now that they had agreed to re-instruct them. In this exercise, the Defence Offfĳice received scant assistance from Harris or Metzger, neither of whom seems to have volunteered to appear before the court to ask for an unconditional return to the case. It appears that they had left for England, leaving the matter for lawyers in the defence offfĳice to resolve, telling them in e-mails that the security problem was “secondary”6 but their re-assignment was “a matter now for you and the Chamber.”7 There seems to have been no appreciation that they would have to appear themselves in the chamber to unravel a problem of their own making. The defendants, meanwhile, were refusing to consider any of the alternative lead counsel suggested to them by lawyers from the Defence Offfĳice

6 Email from Metzger to Defence Offfĳice, 18th May 2005. 7 Email from Metzger to Defence Offfĳice, 14th May 2005. 1084 part iii and were insisting that the Offfĳice re-assign Messrs Harris and Metzger. Given the unaccommodating attitude of the Trial Chamber judges on 16th May, the public defenders were being put in an unenviable position. 26. On 17th May, the public defenders wrote to the Registrar a considered letter setting out in some detail the reasons why they believed it would be in the best interests of the defendants, and the best interests of expediting the trial and of fĳiscal economy if Messrs Harris and Metzger were “appointed afresh.” This was a reasonable position to take if (as they obviously believed) the reason for the court’s order had been the original withdrawal of instructions. Their letter to the Registrar failed to mention the Trial Chamber’s refusal on 16th May to enter into any dialogue on what turned out to be the all-important security issue: they merely said that counsel would be willing to continue with the case “if reasonable steps can be taken to address their concern” – whatever this might mean. 27. I would interpret the Defence Offfĳice letter to the Registrar as a cry for help rather than, as the Court later came to think, an attempt to circumvent its order. The Registrar interpreted it as a request for his assistance, and so used his power under Rule 33B to make representations to the Trial Chamber for help in discharging his functions. Given the urgency of the situation and the fact that he was about to leave Freetown, the Registrar simply submitted the public defender’s memorandum of 17th May to the Presiding Judge of the Trial Chamber, with a handwritten request for the court’s urgent advice on whether these two counsel should be reappointed. His note, hastily written in the circumstances, said that “as a matter of expediency” there were reasons to support their return but “my view is that it would be counterproductive to reassign them” and he thought the Trial Chamber should have “at least a say, if not the fĳinal say” on the question. 28. The Registrar is entitled, by Rule 33(B) to make oral or written representation to Chambers on any issue arising in the context of a specifĳic case which afffects or may afffect the discharge of such functions, including that of implementing judicial decisions, with notice to the parties where necessary. This sub-rule means that he may intervene, himself or by his legal adviser or counsel, in any Trial Chamber motion that touches his responsibilities. He may also approach and address the court on any difffĳiculty that he or the departments under his supervision would encounter in implementing court orders. When he approached the court on 18th May he had not been told of its fĳirm endorsement of its order on 16th May and he was under pressure from the Defence Offfĳice to take action which would seemingly (and in reality) have breached the 12th May order to appoint other lead counsel. In these circumstances his action is explicable although it should have been made as a formal application with notice to all interlocutory decisions – appeals chamber 1085 parties: such a notice was obviously “necessary.” Regrettably, and probably because of pressures arising from the resignation of the Principal Defender and his own imminent travel, the Registrar approached the court privately and informally. 29. The Registrar’s request was discussed by the trial chamber judges, after which the Presiding Judge wrote a robust reply to the Registrar. It referred to the “no correspondence” order of 16th May and added That ruling stands and the order stands. The court will not give audience to counsel who make an application to withdraw on one day on various grounds, particularly security, and then come back the day after and basically say they retract. They cannot make fools of the court like this, nor can they do it in a “backdoor” way through the Principal Defender’s and Registrar’s power to appoint counsel. 30. The Registrar was mistaken to write privately to the Trial Chamber and it was injudicious to reply by a private inter-offfĳice memorandum. The court should, consistently with its treatment of the Principal Defender on 16th May, have sent the Registrar away with the same ruling: no correspondence would be entered into, at least until its reasoned judgement was delivered. Then, at a proper hearing attended by Harris and Metzger, views about “making a fool of the court” could be canvassed. The Presiding Judge was perfectly entitled to hold and to express these sentiments, but not to express them privately in a memorandum of “advice” to the Registrar. 31. Justice Sebutinde now leapt into the fray with a judgement-length “inter- offfĳice memorandum” produced overnight. It was copied not only to her colleagues and to the Registrar but to the Prosecutor and to the Deputy Principal Defender, thereby ensuring that it was seen by the defence teams. In somewhat extravagant terms, it expressed her opinion that the Registrar’s request for advice was ultra vires and that any answer from her colleagues would be grossly improper and reveal their bias and conflicts of interest and would compromise the fair and impartial conduct of the trial. Judge Sebutinde’s irritation at the turn of events can be well understood, but what was required from her – and from the other judges – was not an inter-offfĳice memo but reasoned judgements, so the matter could get back on track. The Registrar’s private application for advice was a mistake and so was the Presiding Judge’s private answer, but these mistakes came about because of the delay in delivery of the reasoned judgement. The next day, 20th May, Judges Doherty and Lussick handed down their reasons. Judge Sebutinde’s dissent was not appended. It did not appear until 5th August, two and a half months later. That I fĳind its reasoning in some respects persuasive does not excuse the fact that it was unavailable at the time it was required by the rules and needed by the parties, and when it might well have been used as the basis for a successful application to appeal the majority judgement. 1086 part iii

The Reasons: Majority (20 May) Dissenter (5 August) 32. The court’s judgement, delivered on 20th May, at last revealed the reason why the application to withdraw had succeeded. The court fĳirmly rejected, by reference to ICTY precedents, the argument that lack of instructions could constitute “most exceptional circumstances.” It pointed out that “by withdrawing instructions from their counsel, the accused are merely boycotting the trial and obstructing the course of justice.”8 Counsel’s concern that they might be called as witnesses in the contempt case was nothing to the point and there was no prospect of any breach of the English bar code. “If such difffĳiculties were lead counsel’s only arguments, then the motion must fail.” It succeeded only and solely because of the court’s “grave concern… at the threats made to lead counsel and their families.” The court took everything that counsel said at face value (“We do not think that they have made the application lightly. They are experienced barristers fully aware of their professional obligations to their clients and to the court”) and concluded We are of the view that lead counsel with their present difffĳiculties, would not be capable of acting in the best interests of their clients. We doubt that they would be able to represent their clients to the best of their ability when, apart from everything else, their concern is for their own safety and that of their families. 33. In other words the court thought that counsel were too scared to concentrate sufffĳiciently on the defence of their clients. On that novel ground, advanced in brief paper submissions without any supporting facts or information, without medical or psychiatric evidence of their trauma or inability to concentrate, or even evidence that they had taken the elementary step of seeking extra security or reporting the “threats” to anyone, these two lead counsel were permitted to part company with their clients and their contracts. 34. Judge Sebutinde’s dissent, when it eventually appeared, was a refutation of the arguments that had persuaded the majority. She pointed out the gravity of the decision to abandon a client in mid-trial and the breach of contract and breach of trust involved, as well as the consequent expense and delay for the Special Court. She pointed out that the threat had not been substantiated other than by averments of counsel themselves in a written document, not even made from the Bar table. Counsel had chosen to “throw in the towel” without reporting the threats to any person in authority. Mr. Metzger, she concluded, had no credible reason to feel threatened while Mr. Harris, who said he had received three threatening phone calls, had recently written to newspapers attacking the Trial Chamber and identifying himself as Brima’s counsel: he may well by that action have made himself a target. The interests of justice, she argued, required both men to do their

8 Citing Prosecutor v. Baragwiza, 2nd November 2000, p. 14. interlocutory decisions – appeals chamber 1087 duty and remain in place. As I have already explained, her reasoning was of no use to the defendants because it was not appended to the court’s decision and did not appear until 5th August – 2½ months later.

The Consequences of the Decision 35. It is important to emphasise what had happened by this point, because the reality was lost sight of by the parties in arguing this appeal. The two lead counsel, by their own volition and after anxious consideration, had decided they could not properly or professionally represent their clients. They had persuaded the court, by majority, to endorse that decision. Their application had been couched and granted in terms of a “permission to withdraw” but the decision – as sought and as delivered – operated as a fĳinding that they were incapable of continuing as counsel, not because they lacked instructions but because they were in a state of personal fear that that would disable their performance even if they were to receive instructions. The decision, made expressly to relieve them from any professional or contractual obligation to represent their clients, operated logically to exclude them from any list of counsel available and willing to lead for the defence. It meant – and on 20th May the Trial Chamber repeated its orders of 12th May – that the Defence Offfĳice had to fĳill the two lead counsel positions with other available candidates, and as soon as possible. 36. As a result, there was no way back for Messrs Harris and Metzger, unless they themselves were prepared to ask the Trial Chamber to revoke the decision they had sought and obtained. If, prior to the instruction of new lead counsel in their place, circumstances were to change – if the threat to their lives proved less serious than they had at fĳirst apprehended – then they could ask the Trial Chamber to reinstate them. They would need to persuade one or both of the judges who had endorsed their incapacity that they were now unfrightened and unfazed: that they had the fortitude to carry out their former client’s instructions. Unless and until they were prepared to make such an application to the Trial Chamber, Messrs Harris and Metzger could not logically be considered as counsel available for the defence: in so far as there was a list of such counsel, they had by their own actions efffectively removed themselves from it. The lawyers in the Defence Offfĳice did not appreciate this: they viewed the issue, simplistically, as a matter of the defendant’s right to choose his counsel. (It was, of course, more a matter of counsel’s right to chose not to represent his client.) The defendants’ decision to re-instruct counsel in the future would not bring back Mr. Harris or Mr. Metzger. They would have to bring themselves back and satisfy the court that they had fully regained their concentration and resolution. It may have been their reluctance to do so that caused the Defence teams and the Defence Offfĳice to seek another route to reunite the defendants with their erstwhile counsel. 1088 part iii

The Proceedings Under Appeal

37. These proceedings were launched on 24th May, by co-counsel for Brima and Kamara, as an Extremely Urgent Confĳidential Joint Motion for the Reappointment of Kevin Metzger and Wilbert Harris as Lead Counsel for Alex Tamba Brima and Brima Bazi Kamara. There was of course no basis for confĳidentiality (see above) but that was the least of the problems confronting those who brought this motion, in the teeth of the orders of the court on 12th May, confĳirmed by the judgement of 20th May. Until those orders were varied or vacated, this motion could not get offf the ground. 38. The motion itself makes only passing reference to the court orders of 12th and 20th May and the judgement of the latter date. The Registrar was made the fĳirst respondent and the Acting Principal Defender the second respondent, and the motion focuses on a letter from a legal adviser to the Registrar sent on 19th May to the Principal Defender, described as a formal communication of the Registrar’s decision “not to allow the reappointment” of Messrs Harris and Metzger. This was hardly an apt description: the letter did no more than communicate the Registrar’s decision to obey the orders of the court. The letter stated …the Trial Chamber had made an order allowing counsel to withdraw and that order was to stand. The Trial Chamber confĳirmed this order again on 16th May following an oral notifĳication of the desire to reappoint counsel and the court said that the order had been made and any letter, correspondence or documents that seek to go behind that decision cannot be countenanced by the court. 39. This motion, in a nutshell, seeks judicial review of the Registrar’s decision to obey the court order, communicated in the above letter and confĳirmed by a subsequent decision, on 25th May, to remove Harris and Metzger from the Defence Offfĳice “list.” As such, the motion was from the outset a contradiction in terms. There can be no basis in law for challenging an offfĳicial’s willingness to obey a court order: either the court must be approached to vary the order or else the order must be appealed. On this simple ground, the motion should have been struck out immediately, as an abuse of process, since it was a collateral attack on an unappealed court order. However, it was entertained at great length and leave has now been granted for the majority decision to dismiss it to be made the subject of this appeal. 40. The fatal flaw is evident in the Relief sought by the motion: it seeks “in the fĳirst place” an order by the Trial Chamber that “the Registrar ensure that Messrs Metzger and Harris are reassigned” and further, that the Principal Defender must enter into a new legal services contract with them. How can such orders possibly stand with the court’s order of 12th May, confĳirmed on 20th May, which approves Harris and Metzger’s withdrawal and directs assignment of new lead counsel? interlocutory decisions – appeals chamber 1089

This motion is, in substance if not in form, an appeal from those orders, and is brought by the co-counsel who had sought them in the fĳirst place. 41. The grant of leave for this appeal may be a tribute to the assiduous arguments of the parties or a reflection of the unhappy diffferences which had emerged between the Trial Chamber judges. But the fact remains that the motion itself is fatally and obviously flawed: however interesting the arguments, it amounts to a claim that the Registrar and/or the Public Defender are required to disobey lawful order of the court. The order was made, moreover, at the request of the lead counsel whose co-counsel now seek to circumvent it. In truth, it was (as the Presiding Judge apprehended in her response to the Registrar) a “backdoor” way of challenging the court’s order to assign new lead counsel. 42. Quite apart from that logical difffĳiculty, the motion assumes a jurisdiction in the Trial Chamber to review and indeed to quash an administrative decision made by the Registrar. Criminal courts do not normally have an administrative review jurisdiction and there is nothing in the Special Court’s constitutive documents – its Statute and Agreement – to suggest that Trial judges have powers to direct the Registrar on fĳinancial or administrative matters. Should his administrative decision impact on the defence in a manner which could imperil defendants’ rights, of course, the Chambers may comment and warn: in the unlikely event that its warn- ings are ignored, the court has a range of protective powers and ultimately the power to stop a trial for abuse of process if administrative decisions prevent it from proceeding fairly.9 But administrative actions are for the Registrar, subject to appeal to the President of the court, who has a supervisory jurisdiction granted to the Court’s Statute. The notion that Trial Chambers also have a review power is said to have been established by the Brima decision in Trial Chamber 1 and the Registrar in his submissions urges this Appeal Chamber to overrule that precedent. This is an important issue, which I will address later in this judgement. 43. The fundamental basis for challenging the Registrar’s decision – and by implication the court’s order – was that it contravened the right of defendants to have their counsel of choice – a right said to be guaranteed by Article 17(4)(d) of the Special Court Statute. That right, as I shall explain, is very qualifĳied and the nature and extent of the qualifĳications need to be spelled out. 44. The other important issue raised by the motion, and in particular by the responses to it of the Registrar and the Principal Defender, concerns the powers of the Defence Offfĳice and the degree of its operational independence from the Registrar. The Principal Defender and his offfĳice is an innovatory and much applauded feature of the Special Court and it is appropriate for this Appeal Chamber to indicate how the rules relating to that offfĳice should be interpreted.

9 See Prosecutor v. Norman, Case No. SCSL-04-14-AR72, Decision on Preliminary Motion Based on Lack of Jurisdiction (Judicial Independence), 13 March 2004. 1090 part iii

45. Other subsidiary issues have been variously raised by the parties in the course of the appeal and my views on them are sufffĳiciently reflected in the comments I have already made on the facts. The point is taken that the robust comments of the Presiding Judge on 16th May meant she (and any other colleague who joined in making them) was henceforth disqualifĳied, for bias, from adjudicating this motion. The point is misconceived: judges will in the course of a long case invariably make adverse or even hostile comments, and sometimes will brusquely decide interlocutory motions: were they thereupon to be disqualifĳied for bias, there would be no judges left by the end of most cases. The comment was obviously directed at counsel – it revealed no bias against the defendants themselves.

The Judgements Below

46. The Trial Chamber divided, as before, in its disposal of this motion. The majority – Judges Doherty and Lussick – dismissed it in their decision of 9th June. They decided, correctly in my view, that “this application in reality is simply an application to reverse a majority decision given by the Trial Chamber on 12th May 2005.” They also decided, correctly in my view, that they had no power to interfere with contractual arrangements made with counsel by the Principal Defender and the Registrar. The court pointed out that the security concerns “were still in existence.” The only evidence before the Court was an email from Mr. Metzger which said “We are content (for the security issue) to be investigated and for all necessary action to be taken.” According to paragraph 34 of the motion, this elliptical comment meant “these threats could be investigated by the Registry and reasonable steps taken to ensure the safety of counsel if and when necessary.” This volte face by lead counsel, who a fortnight previously had represented that their lives and the lives of their families were at serious risk, was viewed suspiciously by the Trial Chamber majority. It concluded that the motion was “frivolous and vexatious.” 47. It must have been irritating in the extreme for judges to be told that lead counsel, whom they had taken at their word as being in fear for their lives, were now happy to return merely on the basis that the “threats” could be investigated by the Registry. It would also have been strange to be told by the defendants themselves, in sworn statements, that they had not been warned by their counsel that withdrawing instructions “would force my lead to counsel to withdraw.” The court conjectured that lead counsel had been insincere in making the original application and that the motive of the defendants throughout had been to disrupt the trial. These inferences did not necessarily follow that might have been drawn. It may well be that the defendants were genuinely confused and that lead counsel took an argument that they thought was available or properly arguable. In an interlocutory decisions – appeals chamber 1091 adversary system, defendants sufffer for the mistakes of their advocates, but courts should do their best to temper the wind to shorn lambs. It was not necessary for the court to fĳind that the motion lacked bona fĳides: it was sufffĳicient to fĳind that it was misconceived. 48. The court criticised the Deputy Principal Defender for her failure by that stage to appoint new lead counsel. I do not think that criticism would have been made had the court been shown the evidence submitted to the Appeal Chamber about the very considerable effforts that were in fact made within and by the Defence Offfĳice to comply with the court’s order, whilst at the same time striving to have it overturned in the interests of the accused. In all the welter of paperwork that has descended on the Appeal Chamber in the course of this case, what does stand out is the devotion to the interests of the defendants displayed by lawyers in the Defence Offfĳice. The Principal Defender had resigned and they had no help from lead counsel and they had to deal with defendants who were upset and urging them to do the impossible. They had to deal with an intransigent court and an intransigent Registrar. They made serious attempts to instruct fresh counsel but it is difffĳicult to obtain competent barristers able to fly to Sierra Leone at the drop of a hat for a period that could last twelve months. The Defence Offfĳice lawyers were mistaken in the belief that defendants have a “right” to choose counsel, but they did not seek to subvert the court’s order: their commitment to the defendants’ interest was conscientious and commendable. 49. As a matter of law, the court’s decision to reject the motion was correct. There were, however, two statements about the law made in the course of its judgement that must be corrected. Neither was essential to the decision but they may reflect deep-seated errors. They come at the end of paragraph 51. The court, referring to its judgement of 20th May, states “We do not have jurisdiction to revisit that decision…” This Appeal Chamber has emphasised, more than once, that Trial Chambers do have an inherent jurisdiction to revisit and reconsider any decision, if the circumstances have changed and the interests of justice so require. There was nothing at all to stop this chamber from rescinding or varying its orders of 12th/20th May if persuaded that lead counsel were now fully capable of defending their former clients. Had the court done so, this whole debilitating case might have been avoided. Of course, the decision might well have been to confĳirm the court order, but the problem caused by counsel would have been fully and publicly explored and any criticism of those counsel would have emerged after their side had been heard. 50. That Trial Chambers have the jurisdiction to reconsider and vary their interlocutory orders (as distinct from fĳinal judgements, after which they are functus offfĳicio) is well recognised. As a distinguished ICTR Trial Chamber put it, quite recently, 1092 part iii

the Chamber has the authority to reconsider its decisions if satisfĳied that the underlying factual premise has changed substantially in a way that alters the original outcome.10 So too “the Appeals Chamber has an inherent discretionary power to reconsider a previous interlocutory decision, for example, if a clear error of reasoning has been demonstrated or if it is necessary to do so in order to prevent an injustice.”11 The Trial Chamber should have been invited to exercise its authority to reconsider, because the underlying factual premise of its original decision had changed substantially. If counsel were prepared to address the court in person (rather than in elliptical emails sent to the Public Defender) and assure it that they were willing now to appear, they may have been permitted to return. That, I repeat, is what should have happened. 51. The other error, much commented upon by the parties to the Appeal, was made in the concluding sentence of paragraph 51: “In any event it appears that the said counsel are not eligible to be reappointed since they are no longer on the list of qualifĳied counsel required to be kept under Rule 45(C).” This point was technical to a fault and in any event spurious: the counsel were not eligible for the simple reason that they had withdrawn and the court had ordered that they be replaced. The “list” and their removal from it was a red herring. The “list” is a con- struct of convenience. It is a form of registration of counsel who are willing to be instructed, because it permits the Principal Defender to examine their credentials and experience. They may be removed e.g. for misconduct, but in such cases the Registrar’s decision is appealable to the President of the court. The Registrar’s act of removing them from the list was not a freestanding “decision” of a kind capable of challenge, but rather a compliance with the Court orders of 12th/20th May. 52. The decision of the court was delivered on 9th June, once again without any dissenting judgement appended to it. The dissent was fĳiled on 11th July, in the form of a very long and carefully considered opinion by Judge Sebutinde. Much of it was directed to criticising, paragraph by paragraph, the Trial Chamber majority decision delivered fĳive weeks before. Much as I agree with some of these criticisms, especially of the inferences drawn in the course of that decision, I merely point out that these inferences may not have been drawn at all if Judge Sebutinde’s colleagues had had the benefĳit of her opinion in draft prior to completing their own. One of the benefĳits of collegiality is that it helps to iron out rough edges and inadvertent errors and over-speculative inferences. The Trial Chamber majority

10 See ICTR, Prosecutor v. Bagosora et al., Case No. ICTR-98-41-T, Decision on Maître Paul Skolnik’s Application for Reconsideration of the Chamber’s Decision to Instruct the Registrar to Assign him as Lead Counsel for Gratien Kabiligi, 24th March 2005, para. 17. 11 See ICTR, Prosecutor v. Nahimana et al., Case No. ICTR-99-52-A, Decision on Jean-Bosco Barayagwiza’s Request for Reconsideration of Appeals Chamber Decision of 19th January 2005, 4th February 2005, page 2. interlocutory decisions – appeals chamber 1093 throughout this matter has been creditably concerned to deliver its decisions expeditiously, in order to get on with the trial. It would have been better if Judge Sebutinde had joined the exercise, even from her dissenting perspective, rather than sniping at errors in her colleagues’ decision months after it had been rendered. 53. For present purposes, the signifĳicant features of Judge Sebutinde’s opinion were: 1. in reliance on Brima, she imputed wide judicial review jurisdiction to the Trial Chamber; 2. in consequence, she would accept the motion to quash the Registrar’s decision as a freestanding judicial review and not a “backdoor” attempt to appeal the decision of 20th May; 3. there was a basic right for defendants to choose their counsel, which these defendants had exercised on 12th May in choosing to be represented by their former lead counsel; 4. their right had been upheld by the Principal Defender, whose wish to reappoint Harris and Metzger had been wrongly overruled by the Registrar; 5. it followed that the Registrar had been in error to make the decision (on 19th May) denying the defendants their choice of counsel and (on 25th May) frustrating the will of the Public Defender by removing both counsel from the list. 54. On these fĳindings, Judge Sebutinde would have ordered the Principal Defender and the Registrar to comply with the defendants’ choice of counsel and reappoint Harris and Metzger. Her order, moreover, would have put them in contempt of the order already made by the court on 12th/20th May in a diffferent action. Judge Sebutinde’s position, therefore, involved a logical and legal impossibility. The relief she would have granted would necessarily involve the breach of an unappealed order of her own court.

The So-Called “right” to have Counsel of Choice 55. The Statute of the Special Court, in common with the constitutions of other international criminal courts, makes provision for defendants to communicate with their chosen counsel and to have legal assistance of their own choosing. That provision is made in Article 17(4)(b) and (d) of the Statute: In the determination of any charge against the accused pursuant to the present Statute, he or she shall be entitled to the following minimum guarantees, in full equality… To have adequate time and facilities for the preparation of his or her defence and to communicate with counsel of his or her own choosing; … 1094 part iii

(d) To be tried in his or her presence, and to defend himself or herself in person or through legal assistance if his or her own choosing; to be informed, if he or she does not have legal assistance, of this right; and to have legal assistance assigned to him or her, in any case where the interests of justice so require, and without payment by him or her in any such case if he or she does not have sufffĳicient means to pay for it. 56. Article 17(4)(b) is not a guarantee of representation by chosen counsel: it requires that defence counsel chosen by defendants must be given reasonable access to them – by adequate facilities to visits and correspondence with them in prison, and so on. Article 17(4)(d) gives defendants the right to defend themselves or pay for legal assistance of their choice. If indigent, they have a right to have free legal assistance assigned, if the interests of justice so require. Importantly, however, this Article does not guarantee any choice of counsel to those who are indigent. They must fĳirst qualify for assistance a) by establishing that they cannot pay for lawyers and b) by being involved in legal proceedings where the interests of justice require them to be represented. Whether (a) is established will be a matter for the Registrar to investigate, at various stages of proceedings. Whether (b) is fulfĳilled depends upon the nature of the proceedings: there may be no need for representation at formal appearances, and in some interlocutory motions, particularly those involving general points of law, there might be no injustice in having one counsel argue the point for all defendants. 57. The important point is that there is not, in terms, any “right” to counsel for indigent defendants guaranteed by Article 17(4)(d). There is an implication that legal assistance assigned will be competent and I would go further and fĳind an implication that legal assistance, or at least the legal assistance given collectively to the defence in a particular trial, should be sufffĳicient to satisfy the “equality of arms” principle of adversary trial. But there is no right in a defendant to choose his or her assigned counsel. Those involved in assigning counsel must act reasonably and in so doing they must take the wishes of the defendant into account. But they are not bound by his choice. 58. The right of defendants charged with serious crime not merely to have counsel, but to choose what counsel they shall have is never absolute and is often unrealistic. Lawyers are allowed in courts because they are professionals, authorised and obliged to say all that their clients could say for themselves were they both articulate and learned in law. In order to function as the client’s alter ego the barrister must enjoy, at least to some degree, the respect and confĳidence of his client and that is more likely to result if the client can pick and choose his own professional mouthpiece. In this sense, a choice of counsel rule assists in the fairness of the trial, at least as a matter of perception – in reality, counsel are sometimes “chosen” by defendants as a result of their flamboyancy or touting or high reputation amongst fellow prisoners, and such counsel are not necessarily good lawyers. The rule certainly conduces to the efffĳicacy of adversarial trials, which go more expeditiously and with fewer hitches if professional advocates represent interlocutory decisions – appeals chamber 1095 and contain their clients. It is more likely that defendants will instruct and follow the advice of professionals if they play a part in selecting them. Although justice – and defendants themselves – might be better served by a rule that they could only be defended by experienced and courageous defence counsel selected for them by the court or a defence agency, Anglo-American legal tradition upholds instead the choice of counsel rule, as an individual right for those who can affford it. 59. The rule is not mentioned in the 1948 Universal Declaration of Human Rights, but soon (in 1953) found a qualifĳied place as a “fair trial” right, in the European Convention, Article 6(3)(c).12 It was placed there to reflect a time- honoured practice in English courts of offfering a “dock brief”: when an unrepre- sented defendant was brought to the Bar, the judge would indicate a row of unemployed barristers and invite him to take his pick of counsel prepared to defend him for a guinea. The rule thus served an important human rights purpose of ensuring representation for the poor, although a choice made between professional clones in wigs and gowns, on momentary visual inspection, was hardly an informed choice. When a statutory legal aid system was instituted in Britain, a measure of real choice for poor defendants was provided by the two tier system of solicitor and counsel. The solicitor would help the defendant to choose, by providing him with information about barristers skilled in the kind of work his case required. This system offfered a degree of quality control (although some solicitors were prone to recommend barristers who were friends or relatives, or even members of their clubs or political parties). The client could always insist upon his case being sent to a particular barrister – perhaps because he had read about him in a newspaper or had learnt of his prowess from fellow prisoners. The rule was often meaningless in practice, because counsel of choice were unavailable or had clerks who would substitute another barrister from the same chambers at the last moment. (Royal Commissions in 1981 and 1998 found that many defendants on legal aid in England and Wales met their counsel for the fĳirst time on the morning of the trial.) 60. Against this background, it might be thought that human rights would be better advanced by a rule requiring counsel of ability rather than counsel of choice. But where the concept of “choice” does have real resonance is against the practice, in many repressive regimes, of foisting government-stooge lawyers on defendants in political trials – i.e. lawyers who refuse to defend courageously, or in some cases to defend at all. There are some countries, still, where it is notoriously difffĳicult to fĳind lawyers prepared to act against the government, for men accused of crimes with political or dissident motivation. A right to “counsel of choice” especially if it extends to bringing in counsel from other countries or other

12 It was later (1966) reflected in the text of Article 14(3)(d) of the ICCPR. 1096 part iii

Bars, can be a genuine protection. The rule, in short, makes it more likely that defendants will instruct counsel and that counsel will be fully instructed and that they will have the benefĳit of advice that is independent of the government or the judiciary. 61. Any right to choose one’s counsel is limited not only by practical considerations of a particular lawyer’s availability, but by overall considerations of the interest of justice in ensuring that defendants are efffectively and fairly tried. To this end they must be adequately represented, irrespective of their wishes. This principle emerges from the recent European Court of Human Rights case of Mayzit v. Russia.13 A legally aided defendant facing complex forgery charges refused no less than eight qualifĳied lawyers and insisted that he should be represented by his unqualifĳied elderly mother and his sister, a speech therapist. The court could have granted this request, but given the seriousness and complexity of the case it appointed a specialist counsel to conduct the defence. The European Court approved this course, pointing out that the fair trial promises of the Convention, including the right “to defend himself in person or through legal assistance of his own choosing” (Article 6(3)(c) ) had to be interpreted in light of the overall need to ensure equality of arms; Article 6(3)(c) guarantees that proceedings against the accused will not take place without adequate representation for the defence, but does not give the accused the right to decide himself in what manner his defence should be assured… Notwithstanding the importance of a relationship of confĳidence between lawyer and client, the right to choose ones own counsel cannot be considered to be absolute. It is necessarily subject to certain limitations where free legal aid is concerned and also where it is for the courts to decide whether the interests of justice require that the accused be defended by counsel appointed by them. When appointing defence counsel the national courts must certainly have regard to the defendant’s wishes. However, they can override those wishes when there are relevant and sufffĳicient grounds for holding that this is necessary in the interests of justice. 62. Mayzit v. Russia demonstrates that the choice of counsel rule that applies to European states can be subordinated to the overall interests of justice. The court held that the objection to the lay persons chosen by the defendant was legitimate since the interests of justice would not have been served by an incompetent defence. This is not an altogether satisfactory approach, since the interests of justice would have been even worse served had the defendant represented himself, as he was fully entitled to do. It has always seemed to me preferable to allow the right of self-defence, aided whenever the defendant wishes by a friend in court or a “Mackenzie lawyer”14 (or even his mother and his sister) and if the assistance of

13 6/7/2005, 20th January 2005, Case Number 63378/00, paras. 65–66. 14 An expression deriving from the English case (Mackenzie v. Mackenzie) when a litigant was permitted to have the in-court assistance of a lawyer who was not admitted to practice in the jurisdiction. interlocutory decisions – appeals chamber 1097 counsel is required in the interests of justice then to appoint such counsel as amicus instructed by the court to take points on behalf of the defendant, rather than to impose counsel on an unwilling defendant. That can be unfair to the defendant and unfair to the advocate. I do not comprehend how an uninstructed barrister can sensibly and professionally represent a “client” with whom he has not conferred and whose trust he does not possess. It would be otherwise, of course, if the barrister had already been chosen and instructed and the client in mid-trial changed his choice or purported to instruct his counsel to boycott the trial: there would be no professional embarrassment for counsel in obeying a directive of the court to remain and do his best according to his existing instructions. 63. That Article 17(4)(a) of the Statute of the Special Court does not grant an indigent defendant the right to counsel of choice has long been recognised by the ICTR, which fĳirst interpreted an equivalent provision in 1997 in the case of Ntakirutimana.15 This indigent defendant’s claim that 4(d) entitled him to choose a counsel other than the counsel assigned him by the Registrar was rejected: “the formula used for the indigent accused, which is the right “to have legal assistance assigned to him… and without payment by him in any such case if (he does not have sufffĳicient means to pay for it involves a party other than the accused in the choice of assigned defence counsel.” As a matter of interpretation of the plain words of the Statute, this is obviously correct. The Human Rights Committee has also declared that ICCPR Article 14(3)(d) does not entitle the indigent accused to choose counsel, although the assigned counsel must be an efffective representative. This is the position taken by the European Court of Human Rights in Mayzit v. Russia: Article 6(3)(c) does not guarantee the right to choose assigned counsel: the preferences of the accused should be taken into account but cannot override the interests of justice in providing efffective representation. In the recent ICTR case of Bagosora, the Appeals Chamber pointed out: The appeals chamber has repeatedly emphasised that the right to free legal assistance by counsel does not confer the right to choose one’s counsel. The present practice of assigning counsel is simply to accord weight to the accused’s preference, but that preference may always be overridden if it is in the interests of justice to do so. In addition, the appeals chamber has confĳirmed that counsel may be assigned to an accused even against his will.16

15 ICTR, Prosecutor v. Ntakirutimana, Case No. ICTR-96-10-PT and ICTR-96-17-PT Decision on the Motions of the Accused for Replacement of Assigned Counsel, 11 June 1997. 16 See ICTR, Prosecutor v. Bagosora et al., Case No. ICTR-98-41-T, Decision on Maître Paul Skolnik’s Application for Reconsideration of the Chamber’s Decision to Instruct the Registrar to Assign him as Lead Counsel for Gratien Kabiligi, 24 March 2005, para. 21. See also ICTY, Prosecutor v. Milosevic, Case No. IT-02-54-AR73.7, Decision on Interlocutory Appeal of the Trial Chamber’s Decision on the Assignment of Defence Counsel, 1st November 2004. 1098 part iii

64. Against this weight of jurisdictional authority from the ICTR, it cannot be seriously contended that the appellants had any right to insist that Harris and Metzger be reassigned to them. The lawyers in the Defence Offfĳice misunderstood the legal position and treated these defendants as though they had a right of veto on assigned counsel. They may well have been led astray by an early Trial Chamber 1 decision in Brima, where the chamber wrongly assumed that the Statute guaranteed a right of choice of counsel to indigent defendants: The chamber observes that Article 17(4)(d) of the Statute guarantees to the applicant, as an indigent, the right to be represented by a counsel “of his or her own choosing.” It should be noted that this provision is mandatory… the chamber will not… loose sight of the pre-imminently mandatory and defence protective character of the provisions of Article 17(4)(d) of the Statute.17 65. Unfortunately, Trial Chamber 1 lost sight of the actual words of Article 17(4)(d), which confĳines the right to defend through “legal assistance of his or her own choosing” to those who can pay for it or obtain it pro bono; the right to have expensive legal assistance assigned and paid for from the budget of the court carries no right to insist on the identity of the legal assistant provider. It follows that Article 17(4)(d) does not guarantee the right to choose counsel to any indigent defendant, much less does it make such choice mandatory. It seeks to protect indigent defendants by giving a responsible offfĳicial the task of ensuring that they have efffective representation. Their wishes, of course, are taken into account but are not the overriding factor in the counsel selection. This position, when advanced in argument in Brima, was characterised by Trial Chamber 1 as “superfĳicial, cosmetic, unimpressive and unconvincing” (para. 47). On the contrary, it was the law, from the plain words of the statute and repeated decisions of the ICTR. In this respect (and in others – see below) the Brima decision should not be followed in future. 66. As I understand the position, all defendants at present before the court claim to qualify as indigent, and have been provided with lead counsel and a team of co-counsel. (The only defendant to “appear” by privately paid counsel has been Charles Taylor, unsuccessfully contesting the court’s jurisdiction to try him).18 It has been the task of the Principal Defender to compile a roster of counsel willing to act and competent to defend in a major criminal trial. The defendants may express views about particular counsel on that roster, or suggest outside counsel who might qualify to be assigned to them, but the fĳinal decision belongs to the Principal Defender. In the 1997 Ntakirutimana decision the ICTR thought that some measure of choice might be permitted under its “Registrar’s List” system:

17 See Prosecutor v. Brima, Case No. SCSL-04-16-PT, Decision on Applicant’s Motion against Denial by the Acting Principal Defender to Enter a Legal Services Contract for the Assignment of Counsel, 6 May 2004, paras. 40–41. 18 See Prosecutor v. Taylor, Case No. SCSL-03-01-AR72, Decision on Immunity from Jurisdiction, 31 May 2004. interlocutory decisions – appeals chamber 1099

The fĳinal decision for the assignment of counsel and the choice of such counsel rests with the Registrar… nonetheless, mindful to ensure that the indigent accused receives the most efffĳicient defence possible in the context of a fair trial, and convinced of the importance to adopt a progressive practice in this area, an indigent accused should be offfered the possibility of designating the counsel of his or her choice from the list drawn up by the Registrar for this purpose, pursuant to Rule 45 of the Rules and Article 13 of the Directive, the Registrar having to take into consideration the wishes of the accused, unless the Registrar has reasonable and valid grounds not to grant the request of the accused. 67. This envisaged a choice only from the names of counsel already on the Registrar’s list. Although this modifĳied “choice” of counsel appeared as a “progressive policy” in 1997, the amount of litigation that it spawned since suggests that it can be retrogressive. The cases and UN investigations show that defendants bent on disrupting their trials can do so by choosing to sack their counsel or “choosing” the services of unavailable or over-expensive advocates. They show how incompetent defenders, such as “ambulance chasers,” can baton onto relatives or tout amongst support groups. In “fee splitting” cases, counsel has been “chosen” because they make a deal to pay the defendant and his relatives a proportion of their fee. The Principal Defender system in this court was designed to avoid these problems, by providing counsel of ability and independence. Of course it is more likely to make for a trusting relationship if the accused had some say in the selection, which is why Public Defenders should always canvass candidates and discuss their merits with defendants whose preferences must be taken into account in the fĳinal selection. But it should not be necessary for the Public Defender to justify or show good reason for rejecting a defendant’s choice – that way litigation lies, as the ICTR shows. It is sufffĳicient if the Public Defender consults and takes the defendant’s preferences into account in a decision that remains his to take, in the overall interests of justice. 68. My views in this regard are strengthened by the recent ICTR decision in Bagosora which demonstrates the problems which arise when the Registrar gives a defendant the repeated opportunity to choose counsel, in that case after his lead defender (a previous choice of his) had been disqualifĳied for corruption half way through a long trial. When the Registrar eventually grasped the nettle and “imposed” an experienced defence counsel who was familiar with the case (he had been co-counsel for a co-defendant) the accused refused all cooperation with him and so the newly assigned counsel sought to withdraw. His application was refused: “an accused is not permitted to unilaterally sabotage the preparation of a defence by refusing to cooperate.”19 Neither the code of his home Bar Association

19 See ICTR, Prosecutor v. Bagosora et al., Case No. ICTR-98-41-T, Decision on Maître Paul Skolnik’s Application for Reconsideration of the Chamber’s Decision to Instruct the Registrar to Assign him as Lead Counsel for Gratien Kabiligi, 24 March 2005, para. 30. 1100 part iii

(which required withdrawal in the event of lack of client cooperation) or his own difffĳiculties in taking instructions from this truculent accused, were sufffĳicient to override the interests of justice in having the man properly defended.

Withdrawal by Counsel 69. The court must try fairly those who do not want to be tried at all, and that may mean imposing duties on counsel to continue defending men who cease to instruct them. Where counsel has been in place for some time, it makes some sense to speak of him continuing to “represent a client” from whom he has previously taken instructions. However, it is odd to pretend that counsel assigned to a defendant who refuses to instruct him from the outset is “representing” that client, since no professional counsel could accept as a client a person who refuses all communication with him. In such cases, the assigned counsel should be designated as an amicus – he is there to serve the interests of justice by taking all legal points that might help the accused, but he does not have the accused as a client pursuant to a proper professional relationship of confĳidence and trust. He may be defence counsel, but he is not counsel for the particular defendant. He is counsel for the court, brought in to ensure that all points are taken that could assist the accused. I accept that Rule 60 provides the defendants who escape or refuse to attend court “may be represented… as directed by a judge or trial chamber” and that under this Rule counsel have been ordered to “represent” men who refuse to recognise the court.20 But if in this situation they have to operate without ever having had any instructions from the defendant, it would be best to reflect this fact by designating them as amici. To say that they are “representing” a client gives a false impression and causes professional concern. If the defendant has chosen to defend himself, and is doing so in a rational manner, trial courts should in general avoid imposing amici lawyers: this is an expensive, condescending and time- consuming step. 70. This court has a comprehensive Directive on the Assignment of Counsel which was approved by the President and came into force on 3rd October 2003. It implements Article 17(4)(d) of the Statute by placing the duty to assign counsel upon the Principal Defender, after a request for such assignment (which is not a request for assignment of any particular counsel). If the conditions – poverty and the interests of justice – are met, the Principal Defender shall assign a named counsel from his list of those counsel who are qualifĳied for assignment, after consultation with the suspect or accused (Article 9). The direction is careful to avoid any

20 See Prosecutor v. Gbao, Case No. SCSL-04-15-AR73, Decision on Appeal Against Decision on Withdrawal of Counsel, 23 November 2004, para. 44–45. There are cases at the ICTY where lawyers have represented clients despite lack of adequate instructions: see Milosevic; Blagojevic. interlocutory decisions – appeals chamber 1101 implication that the accused has an right to choose counsel – consultation is all that is required.

The Principal Defender

71. In international courts, in any event, it can be much more difffĳicult to implement preferences for advocates, especially by indigent defendants. There is no “cab rank rule” of international practice which obliges barristers to leave their cit- ies and circuits when offfered a brief in a war crimes court in a far-offf country. Defendants may know of distinguished local lawyers, but they will be few and far between in a country emerging from war. At Nuremberg, after the English Bar Council refused to allow its members to defend the Nazi leaders, the quality of the German lawyers prepared to accept an unpopular brief was poor. At the ICTR and ICTY, where the Registrar has been responsible for allocating briefs, honouring a counsel of choice rule has in some cases had unattractive consequences and encouraged practices that have damaged international justice. So from the outset the SCSL judges and Registrar were determined that they should not happen here. That is one reason why a “Principal Defender” with a defence offfĳice was established, to efffectuate the choice of counsel rule in a way which would ensure quality control and eliminate corrupt practices. 72. The lawyers in the Defence Offfĳice of this court have the task of recruiting experienced defence counsel from the various Bar Associations of the world as well as from the Sierra Leone Bar and these counsel must be prepared to commit themselves to represent defendants throughout lengthy trials. They are entered on a register (the “list”) kept by the Defence Offfĳice, which collects relevant information about their professional records. When a defendant needs to choose a lead counsel, or a new lead counsel, the Defence Offfĳice lawyers will inform their choice by providing them with details of counsel on the list and discussing which of them might, subject to availability, be appropriate to lead their defence. The Defence Offfĳice lawyer in this respect performs the function of an instructing solicitor, informing and advising a defendant about counsel whom they have vetted for independence and ability. Once the defendant has expressed any preference, and the Principal Defender has made a fĳinal decision and confĳirmed availability, he will enter into a contract with the lead counsel. At the relevant time, these were “block” contracts where the lead counsel was guaranteed a large one offf payment but from that sum she or he had to pay co-counsel as well as investigators whom they would contract separately for their defence team. Thus every indigent defendant charged in this court has substantial funds devoted securing a high quality legal assistance, and the defence teams as well are allocated offfĳices in the Court precincts and have access to a well-stocked library, computer terminals and may draw on the resources of the Defence Offfĳice. Thus “equality of arms” is 1102 part iii meaningfully achieved, by a system that takes account of the defendant’s preferences for counsel, but ensures that counsel has ability. It is a system that works, but a system that can be thrown into disarray if lead counsel have to be replaced in mid-trial. 73. That can happen for any number of reasons. The most common example, in this and other courts, is when the defendants purport to sack their counsel – whether as a general protest against the trial or because of some genuine personality conflict. Counsel, too, may wish to withdraw – for family reasons or because the trial is taking too long or the living conditions in Sierra Leone are difffĳicult or because of illness (in the case of Mr. Brima’s fĳirst counsel, sadly, because of death). The consequences of withdrawal are very damaging – disruption of the trial, dif- fĳiculty for the defendant, great expense for the court which has to fĳind a new counsel who must be paid to begin from scratch. So international criminal courts have devised rules that make it difffĳicult for defendants to sack their counsel and for counsel to sack their clients. 74. Once counsel is assigned to an indigent defendant, the assumption – certainly of the contract which is made with the lead counsel by the principal defender – is that the relationship will continue until the trial concludes. If the defendant wishes to end that relationship and obtain diffferent counsel, the position is governed by Rule 44(D): (D) Any request for replacement of an assigned counsel should be made to the Principal Defender. Under exceptional circumstances, the request may be made to a Chamber upon good cause being shown and after having been satisfĳied that the request is not designed to delay the proceedings. This sub-rule provides a necessary degree of flexibility in accommodating a defendant’s wishes, without endowing him with any “right” to change counsel. If the breach of relationship is sought at an early stage, before the trial starts, it may be relatively easy and inexpensive for the Principal Defender to substitute lead counsel. The Principal Defender will balance the interests at stake: on the one hand, the reasons why the defendant wants fresh counsel and on the other hand the potential for disruption and the expense of granting that wish. If the Principal Defender cannot or will not grant the request, then if the circumstances are “exceptional” it may be renewed in front of the Trial Chamber, which must be sat- isfĳied that there is good reason for the change and that it is not motivated by any wish to delay proceedings. Even if these conditions are satisfĳied, the Chamber is not obliged to order a replacement. Its discretion will be exercised in the overall interests of justice, accepting the desirability of an accused person being represented by counsel in whom he has confĳidence, if that can be achieved without unnecessary expense or disruption. Since there is no right under Rule 17(4)(c) to choose one’s counsel there is, a fortiori, no right to choose one’s counsel for a second or third time. interlocutory decisions – appeals chamber 1103

Withdrawal by Counsel: the “most exceptional circumstances” test 75. The Rules make it rather more difffĳicult for chosen counsel to disengage from his client. Rule 45(E) provides: (E) Subject to any order of a Chamber, counsel will represent the accused and conduct the case to fĳinality. Failure to do so, absent just cause approved by the Chamber may result in forfeiture of fees in whole or in part. In such circumstances the chamber may make an order accordingly. Counsel shall only be permitted to withdraw from the case to which he has been assigned in the most exceptional circumstances. In the event of such withdrawal the Principal Defender shall assign another counsel who may be a member of the Defence Offfĳice, to the indigent accused. 76. The severity of this sub-rule reflects the gravity of abandoning a client charged with a very serious crime and facing a lengthy prison sentence if convicted. It is not a rule that applies only to war crimes courts – the “most exceptional circumstances” test is found in many codes of conduct for barristers in common law countries.21 Essentially, it is a core professional duty imposed on all who defend persons accused of serious crime. No matter how inconvenient to their lives or how detestable their client or how sick they are or how threatened they feel, a barrister must stick with a client to the end of the trial. The English Bar is much given to celebrate the courage of its members, often in words used by Lord Brougham to praise himself for defending Queen Caroline: An advocate, by the sacred duty which he owes his client, knows in the discharge of that offfĳice but one person in the world, that client and none other. To save that client by all expedient means – to protect that client at all hazards and costs to all others, including himself, is the highest and most unquestioned of his duties; and he must not regard the alarm, the sufffering, the torment, the destruction which he may bring upon any other. He must go on, reckless of the consequences… even if his fate it should unhappily be, to involve his country in confusion for his client’s protection. This sounds hyperbolic today, but its sentiments are still reflected in most Bar codes: the advocate has a professional duty “to promote and protect” fearlessly and by all proper and lawful means his lay client’s best interests and do so without regard to his own interests or to any consequences to himself or to any other person (including his professional client or fellow members of the legal profession).22 77. It is against this background that Rule 45(E) imposes the “most exceptional circumstances” test. Exceptional is not used in the sense of “novel” or “unusual”: the circumstances which impel counsel to seek permission to withdraw must truly be compelling. Some allowance will be made if the trial has not commenced,

21 See Julian Disney & ors, Lawyers (Law Book 10, 2nd ed, 1986), p. 609. 22 See Code of Conduct of the Bar of England and Wales (27th January 1990 (paragraph 207) ) and David Pannick, Advocates Oxford University Press, 1992. 1104 part iii hence a number of counsel who were assigned to take jurisdictional points at the outset have been permitted to withdraw before the stage of preparation for the trial proper.23 “Most exceptional circumstances” might include a serious permanent injury or a major chronic disease; for a foreign counsel it might include a judicial appointment in the home state or the injury of a partner which leaves counsel to care for young children. It would not include the offfer of a more lucra- tive brief elsewhere or even loss of earnings through unexpected length of the trial. What will amount to “most exceptional” circumstances cannot be predicted in advance or stated in some more comprehensive formula. Contrary to Lord Brougham’s rhetoric, no advocate can be expected to risk his life to continue defending a client, but that risk must be credible and imminent and incapable of being guarded against other than by leaving the client and the country. It must be such that counsel of reasonable fortitude would see no alternative but to withdraw. 78. In the ordinary course of modern practice at the Bar of England and Wales, the fearless advocacy required may be little more than to stand up to a grumpy judge or endure the whispered instructions of a solicitor with halitosis. But in the wider world, lawyers who defend – and prosecute, and sit as judges – must in some places show real courage: they have an obligation to display bravery, although not bravado. Lawyers who act for unprepossessing people accept many risks in many countries ranging from career discrimination to acid attack (the fate of defence counsel for John Demjanyuk in Tel Aviv).24 Prosecutors too can sufffer assault and there have been a number of judicial fatalities: Marquez reminds us of the low-salaried Columbian jurists who in the 1980s were faced with the impossible choice of granting bail to narco-terrorists or being assassinated – “The most admirable and heart-rending thing is that over 40 of them chose to die.”25 No court can put a lawyer in that impossible position, but equally no lawyer can expect a court to relieve him from his professional duty simply because he has received threats and done nothing about them. 79. This is a war crimes court that sits at the scene of its alleged crimes, very shortly after the end of the war. That location has many advantages, in enabling victims to see justice done and to involve local lawyers in the process and to help engender respect for restoration of the rule of law. It does mean greater provision for security stafff and judges and lawyers: there have been threats made, especially at the outset, against SCSL prosecutors and judges and there are still threats against witnesses. But Freetown is not Baghdad. The security that is in place

23 See Prosecutor v. Norman, Case No. SCSL-04-14-T, Ruling on request for Withdrawal of Mr. Tim Owen QC, as Court Appointed Counsel for the First Accused, 1 March 2005. 24 Pannick, op. cit., p. 31. 25 Gabriel Garcia Marquez, The Future of Colombia (Granta, 1995). interlocutory decisions – appeals chamber 1105 protects all defence counsel in the precincts of the court and can be extended on reasonable request, as both these counsel seem subsequently to have accepted. Mr. Metzger says in his email that in any event that “threats” were a “secondary argument”: it may have been better if they had not been made the subject of argument at all. It was an argument that did not deserve to succeed although succeed it did – perhaps as an “own goal” for the defence. 80. Serious threats which afffect counsel’s performance could amount to a “most exceptional circumstance”: endogenous or pathological fear is debilitating and no defendant should have to put up with representation by counsel who sufffer from it. The Trial Chamber majority found that these counsel were so afffected by the threats that they could not adequately concentrate on their client’s case and that this state of their minds would continue for the foreseeable future: on this basis it permitted them to withdraw. I can fĳind little evidential support for the court’s conclusion, but two very experienced criminal trial judges, having observed the two counsel in question, were entitled to reach it, having been asked to do so by those same counsel. They concluded that these counsel were and were likely to remain in no fĳit state to concentrate on the representation of their clients, and on that basis they made appropriate orders which have not been appealed. 81. It follows that neither the order of the court of 12th/20th May nor its implementation by the Registrar involved any infringement of the guaranteed rights of the accused. There is no guaranteed “right” to choice of counsel, although the Defence Offfĳice must carefully consult with indigent accused prior to engaging counsel for them. They have no right of veto over what in the end is a Defence Offfĳice decision. These particular defendants, by withdrawing their instructions from their chosen counsel, produced a situation in which those counsel sought to withdraw and permission was accorded by the court on the basis that counsel were incapable through fear of acting in their best interests. Its order to assign fresh counsel was properly made under Rule 45(E): the Registrar and the Defence Offfĳice were bound to comply. Although the defendants then changed their position and expressed a wish to have their former lead counsel return, that preference could not be accommodated so long as the Trial Chamber order, based on a fĳinding of their incapacity, remained. There is no right to be represented by an incapable counsel, and the Public Defender has a duty not to assign incapable counsel. It follows that these defendants could not have their preferred counsel other than by asking for the orders to be reconsidered or seeking leave for an interlocutory appeal. They did neither.

The Registrar and the Principal Defender 82. The alternate basis of this motion is that the Registrar was acting ultra vires in countermanding the decision of the acting Principal Defender that the previous 1106 part iii lead counsel should be reassigned. The Registrar responds that the offfĳice of Principal Defender is not contained in the court’s constitutive documents. Article 16(1) of its Statute provides that “The Registry shall be responsible for the administration and servicing of the Special Court and Article 4(1) of the Agreement goes further: Article 4. Appointment of a Registrar The Secretary General, in consultation with the President of the Special Court, shall appoint a Registrar who shall be responsible for the servicing of the Chambers and the Offfĳice of the Prosecutor, and for the recruitment and administration of all support stafff. He or she shall also administer the fĳinancial and stafff resources of the Special Court. 83. The stafff of the Defence Offfĳice and its head the Principal Defender, are all “support stafff,” and have no independent authority to disobey or ignore a direction from the Registrar – in this case, not to reappoint Messrs Harris and Metzger. Judge Sabatindi concluded that the Rules give the Public Defender an extra statutory independence, on the basis of the intention of the Management Committee and the plenary in 2003, at the time the Defence Offfĳice was established. In order to examine her argument, it is necessary to explain how that offfĳice came into being. It is not an offfĳice that existed in any other court at the time it was created. 84. The genesis of the Principal Defender and his offfĳice is to be found in the “Public Defender Proposal” submitted to the Management Committee in a note from the President of the court on 7th February 2003, before any indictments had been preferred. This document does not seem to have been available to Judge Sebutinde so I append it to this opinion. It begins: International criminal courts have yet to devise a satisfactory means of attracting only experienced, competent and honest defence counsel, so as to comply with the human rights principle that adversary trials should manifest an “equality of arms” (i.e. reasonable equivalents of ability and resources between prosecution and defence). The paper went on to criticise the “Registrar’s List” system adopted by other tribunals, which a UN audit committee had found an unsatisfactory means of excluding incompetent or corrupt defence counsel.26 85. The core proposal of this paper was to establish in the SCSL of a Defence Offfĳice headed by a “Principal Defender,” who would have a status equivalent to

26 See the Report of the Offfĳice of Internal Oversight Services on the investigation into possible fee splitting arrangements between defence counsel and indigent detainees at the ICTR and ICTY, 1st February 2001, A/55/759, especially paras. 9–15; follow up investigation into possible fee splitting arrangements between defence counsel and indigent detainees at the ICTR and ICTY, 26th February 2002, A/56/836. interlocutory decisions – appeals chamber 1107 the prosecutor or deputy prosecutor. The offfĳice would be stafffed by trial lawyers who “will have been in unblemished practice, specialising in criminal or international human rights law, for at least seven years: they must have a reputation for fearless and independent representation of defendants charged with serious crimes.” The Principal Defender would be “an experienced criminal trial lawyer with a reputation for able and fearless defence and some proven administrative ability. His duties will include setting up and stafff- ing a defence support unit; assigning and retaining counsel for indigent defendants; making arrangements for bail applications; conducting (either personally or by assigning other counsel) legal arguments for indigent defendants or as an amicus at interlocutory, trial and appeal stages; directing such investigation, research and the like as appears necessary for adequate preparation of assigned cases on behalf of indigent clients; providing assistance as requested to the court, the Registrar, and to counsel retained privately by other defendants.” 86. The “Public Defender” proposal was approved in principle by the Man- agement Committee in February 2003 and left to the Registrar and the President to implement through changes to the Rules. Unfortunately, budgetary constraints prevented the offfer of a Principal Defender salary sufffĳicient to attract trial counsel of equivalent distinction and trial experience to that of the Prosecutor and Deputy Prosecutor, but nonetheless, the lawyers who have stafffed the offfĳice have played a vital part in representing defence interests during the drafting of the Rules of evidence and procedure, and then subsequently functioned in efffect as solicitors in obtaining the services of experienced counsel and instructing those counsel to appear for defendants at their trials. The Principal Defender, as envisaged by the Court President, was an independent offfĳice that should ideally have been entrenched in the Statute of the court. However, that Statute had been agreed between the UN and the Government of Sierra Leone in 2002, and no amendment was feasible. For that reason, the Offfĳice had to be created by way of an amendment by the Plenary of Judges to Rules which were inherited from the ICTR and provided in Rule 45 for the “Registrar’s List” system. So a new Rule 45 was devised which retained the reference to a “list” of potential trial counsel, but placed it in the hands of the Principal Defender, who was entitled to add members of his offfĳice to this roster. The amended Rule 45 provides as follows:

Defence Offfĳice The Registrar shall establish, maintain and develop a Defence Offfĳice, for the purpose of ensuring the rights of suspects and accused. The Defence Offfĳice shall be headed by the Special Court Principal Defender. (A) The Defence Offfĳice shall, in accordance with the Statute and Rules, provide advice, assistance and representation to: (i) suspects being questioned by the Special Court or its agents under Rule 42, including non-custodial questioning; 1108 part iii

(ii) accused persons before the Special Court. (B) The Defence Offfĳice shall fulfĳil its functions by providing, inter alia: (i) initial legal advice and assistance by duty counsel who shall be situated within a reasonable proximity to the Detention Facility and the seat of the Special Court and shall be available as far as practicable to attend the Detention Facility in the event of being summoned; (ii) legal assistance as ordered by the Special Court in accordance with Rule 61, if the accused does not have sufffĳicient means to pay for it, as the interests of justice may so require; (iii) adequate facilities for counsel in the preparation of the defence. (C) The Principal Defender shall, in providing an efffective defence, maintain a list of highly qualifĳied defence counsel whom he believes are appropriate to act as duty counsel or to lead the defence or appeal of an accused. Such counsel, who may include members of the Defence Offfĳice, shall: (i) speak fluent English; (ii) be admitted to practice law in any state; (iii) have at least seven years relevant experience; and (iv) have indicated their willingness and full-time availability to be assigned by the Special Court to suspects or accused. […] 87. This Rule does not fully implement the original proposal, in part for the very practical reason that it was necessary to set up the Defence Offfĳice as soon as possible: the fĳirst indictments were signed on 8th March, 2003. The Offfĳice was established in efffect as a public solicitor, with advocacy services at the pre-trial stage and defence support subsequently. This was a model urged at the time by an influential Report from “No Peace Without Justice,” which strongly supported the Public Defender proposal but argued that the Defence Offfĳice should be confĳined to solicitor’s work.27 This Report accepted that “there is no requirement in the Statute of the Special Court that an indigent accused should be provided by the Court with a free, or indeed any, choice of legal representation,” but argued for a modifĳied and reformed “list” system, under control of the Defence Offfĳice, on the ground that “a defendant who has had some degree of choice of counsel is far more likely to have confĳidence in him or her.” Thus the new Rule 45 evolved in an attempt to have the best of both worlds: it was approved unanimously by plenary of all judges in the fĳirst week of March 2003. 88. That the Principal Defender and his offfĳice fall under the administrative supervision of the Registrar is thus an historical anomaly: in future courts, the

27 Sylvia de Bertodano, Report on Defence provision for the Special Court for Sierra Leone, commissioned by No Peace Without Justice and published on 28th February, 2003. interlocutory decisions – appeals chamber 1109 offfĳice should be an independent “fourth pillar,” alongside the judiciary, the Registry and the Prosecutor. But the anomaly remains a reality nonetheless in this Court, and the Principal Defender must make the best of it, although the Registrar should act so far as possible in the spirit of the Rule, by allowing the offfĳice an operational independence. The court’s second Annual Report notes: Whilst the Principal Defender and the Offfĳice of the Principal Defender technically fall within the Registry of the Special Court, the Principal Defender acts independently from other organs in the interests of justice. In October 2004, the Principal Defender proposed changes to the Special Court statute and other relevant documents, aimed at formalising the offfĳice’s contemplated full independence. As of the writing of this Annual Report, the government of Sierra Leone along with the Special Court’s President, council of judges, Registrar and Management Committee have endorsed that proposal. The proposal is currently being reviewed by the United Nations and it is hoped that the offfĳice of Principal Defender will eventually become as fully independent as the offfĳice of Prosecutor.28 89. To this I can only say “Amen,” and add that the status and salary of the Principal Defender will have to increase to the level of that of the court’s prosecutor, so as to attract a QC or an advocate of equivalent ability and “equal arms.” The very fact that this constitutional change has not yet been efffected emphasises that, for the present, the unamended Statute governs and entitles the Registrar to give directions to the Principal Defender, who is a member of his stafff. 90. In this case the Registrar was not only entitled, but in my view bound, to direct the acting Principal Defender to comply with the order of the court and to reassign lead counsel. If the directive on 19th March was somewhat precipitate, that of the 25th March – after the decision on the 20th, and after the time for seeking leave to appeal had passed – was inevitable. The Registrar cannot permit any department or member of stafff to disobey a court order. When the Principal Defender is given statutory independence, I would expect the offfĳice to be fĳilled by a QC or equivalent who would have had the confĳidence and clout to summon Messrs Harris and Metzger and to insist that the Trial Chamber listen carefully to their case for reassignment to the defendants. If the Chamber declined to revise its order, the Principal Defender might seek leave to appeal it, but would in the meantime be bound to comply with it.

Does the Trial Chamber have jurisdiction to review the Principal Defender and Registrar? 91. This motion seeks to quash a decision of the Registrar and to order the Principal Defender to enter into fresh contracts with Messrs Harris and Metzger.

28 Second Annual Report of the President of the Special Court for Sierra Leone, 1st January 2004 to 17th January 2005, p. 19. 1110 part iii

It seeks, in other words, public law remedies akin to certiorari and mandamus and assumes that the Trial Chamber has wide supervisory powers of judicial review against court offfĳicials. This is a surprising assertion: criminal law courts have an inherent jurisdiction to protect their proceedings and, if justice cannot be done, to halt a trial for abuse of process, but there is nothing in the court statute which suggests that the judiciary have a general power to reverse or interfere with administrative decisions. Quite the contrary: the Registrar is responsible only to the President of the court and to the Court’s Management Committee for his administrative decisions (see Special Court agreement 2002 Ratifĳication Act 2002). This is emphasised by Rule 19 and Rule 33(a): Rule 19 Functions of the President The President shall preside at all plenary meetings of the Special Court, coordinate the work of the chambers and supervise the activities of the Registry as well as exercise all the other functions conferred on him by the agreement, the Statute and the Rules. Rule 33 Functions of the Registrar The Registrar shall assist the chambers, the plenary meetings of the Special Court, the council of judges, the judges and prosecutor, the Principal Defender and the defence in the performance of their functions. Under the authority of the President, he shall be responsible for the administration and servicing of the Special Court and shall serve as its channel of communication. 92. There are a few instances in the Rules and the directives which may specifĳi- cally bring an administrative act within the oversight of a Trial Chamber: the special jurisdiction to examine any refusal to assign counsel at a preliminary stage is one such (see Directive Article 12). Otherwise, the Trial Chamber is a criminal trial court in which administrative law powers have not been vested by statute and nor are they deductible from practices and precedents in other courts. Indeed, as Ntahobali shows, ICTR Trial Chambers disavow any supervisory jurisdiction.29 93. Any arrogation by trial chambers to themselves of some general right to supervise the Registrar and his offfĳicials would conflict with the supervisory powers of the court President under Rules 19 and 33, and so breach the principle that judicial review will not be granted where there is an alternative and established remedy. It would also cut across the overall administrative and fĳinancial policy supervision of the Management Committee, to which the Registrar reports. The supervisory jurisdiction of the President has been described at the ICTR by Justice Pillay:

29 ICTR, Prosecutor v. Ntahobali, ICTR-97-21-T, Decision on Ntahobali’s Extremely Urgent Motion for the Re-instatement of Suspended Investigator, Mr. Thaddée Kwitonda (TC), 14 December 2001, para. 17. interlocutory decisions – appeals chamber 1111

While the Registrar has the responsibility of ensuring that all decisions are procedurally and substantially fair, not every decision by the Registrar can be the subject of review by the President. The Registrar must be free to conduct the business of the Registry without undue interference by Presidential review. …the decision sought to be challenged must involve a substantive right that should be protected as a matter of human rights jurisprudence or public policy. An application for review of the Registrar’s decision by the President on the basis that it is unfair procedurally or substantively, is admissible under Rules 19 and 33(a) of the Rules, if the accused has a protective right or interest, or if it is otherwise in the interests of justice.30 94. I endorse these remarks, and note that in the ICTR the President’s supervisory jurisdiction in relation to disputes over the Registrar’s decisions on assignment of lead counsel is well established.31 It would be subverted if a parallel and overlapping jurisdiction were to be asserted by trial chambers – both of them – to order the Registrar and his offfĳicials to do this or that and to quash their decisions and order them to enter into or not enter into contracts. 95. This question becomes more pointed when the provisions of Article 24 of the Directive on Assignment of Counsel are considered. The relevant parts provide:

Article 24: Withdrawal of assignment in other situations A. The Principal Defender may: i) in exceptional circumstances, at the request of the suspect or accused, or his assigned counsel, withdraw the assignment of counsel; E. Where a request for withdrawal, made pursuant to paragraph A, has been denied, the person making the request may seek review of the decision of the Principal Defender by the presiding Judge of the appropriate Chambers. 96. This procedure does not appear to have been followed. According to the Directive, Messrs Harris and Metzger should fĳirst have applied to the Principal Defender to have their assignment withdrawn, and her reasoned refusal should then have been submitted to the Presiding Judge for review under Article 24(E). Had that procedure been followed, it may well be that the Principal Defender’s decision (and she was opposed to their withdrawal) would not have been quashed on judicial review grounds as unreasonable. The point, of course, is that the Directive sets out a specifĳic procedure for counsel to follow in seeking withdrawal

30 See ICTR, Prosecutor v. Ntahobali, ICTR-97-21-T, Decision on the Application by Arsène Shalom Ntahobali for Review of the Registrar’s Decisions Pertaining to the Assignment of an Investigator” (President Pillay), 13 November 2002, para. 4–5. 31 See ICTR, Prosecutor v. Nzirorera, ICTR-98-44-T, President’s Decision on Review of the Decision of the Registrar Withdrawing Mr. Andrew McCartan as Lead Counsel of the Accused Joseph Nzirorera (President Pillay), 13 May 2002, p. 3, sect. (xi); ICTY, Prosecutor v. Hadzihasanovic et al., IT-01-47-PT, Decision on the Prosecution’s Motion for Review of the Decision of the Registrar to Assign Mr. Rodney Dixon as Co-Counsel to the Accused Kubura (TC), 26 March 2002, para. 12–13. 1112 part iii in a case alleged to have “most exceptional circumstances” and it empowers the Presiding Judge of the Trial Chamber seized with the matter to overrule an initial refusal by the Principal Defender. This is an example of a review power specifĳi- cally delegated to a member of the Trial Chamber by direction of the President. It would have been unnecessary had the Trial Chamber already possessed a general supervisory power over the public defender and the Registrar, pursuant to its inherent jurisdiction. I should pause to mention that although no argument was addressed to this point, I am not convinced that Directive 24E is compatible with Rule 45E (set out at para. 75 above). Although badly expressed (“... absent just cause…”) the Rule does seem to give the Trial Chamber, and not its Presiding Judge, the power to approve withdrawal. Since the Rules must govern, and any Directive must be read so as to comply with them, this would legitimise defence counsel’s course in bringing the application before the full chamber. The issue does not afffect the resolution of the appeal, but the drafting of Rule 45E and its compatibility with 24E of the Directive should engage the attention of the next judicial plenary. 97. The appellants relied on the decision in Brima, decided on 6th May 2004, when Trial Chamber 1 carved a wide judicial review power out of its inherent jurisdiction. It struck down as ultra vires a decision by the acting Principal Defender to ask a sick lawyer to provide a medical certifĳicate before being assigned to defend Mr. Brima. The Registrar argues in this appeal that Brima was wrongly decided and points out that the lawyer died shortly after the court had ordered his offfĳicials to enter into a contract, leaving the brief fee no doubt to his estate and leaving Mr. Brima unprotected. The argument that a decision is wrong in law because it had absurd results does not necessarily follow, although it does invite closer examination of how Trial Chamber 1 assumed a general supervisory power to interfere with administrative decisions. All the more so since Brima on this point conflicts with a decision of the ICTR in Natahobali that no such power exists, save for the supervisory role of the President of the Court. 98. The complaint in Brima could not be heard as a preliminary motion under Rule 72B(iv) because it was outside the time limits there provided and could not come before the court under Articles 12(A) and 24(E) of the Directive because the Principal Defender had not refused to assign counsel but had imposed a condition on that assignment. He had asked a temporarily assigned counsel who had been absent from several court dates through sickness, to provide a medical certifĳicate or else undergo a check-up, paid for by the defence offfĳice, before a decision was taken on whether permanently to assign him. The court, as has already been pointed out, misread Article 17(4)(d) and thought that it guaranteed counsel of choice to indigent defendants. It thought that requiring a medical certifĳicate from counsel chosen by Mr. Brima was a breach of that guarantee, notwithstanding the terms of Article 4(C) which require the Public Defender to provide an “efffective interlocutory decisions – appeals chamber 1113 defence” by a counsel who has indicated his “full-time availability” and notwithstanding the Directive requirement (Article 13(C)(vi)) that counsel must substantiate their availability for the following eighteen months before they can be assigned. Against that background, I would have thought it irresponsible for the Principal Defender not to insist upon medical evidence of the future health of any counsel previously afffected by illness: it would be a breach of Rule 45(C) to assign a chronically ill lawyer to an accused, no matter how much that accused wished for his representation. It would not be “efffective” representation nor cost-efffective representation. Nonetheless, the Trial Chamber decided that the decision must be struck down and did so on grounds that it was ultra vires “not only because he did not have the statutory empowerment to so act, but also because he acted in excess of and beyond the limits of the statutory empowerment and authorisation of the Principal Defender whose functions he was purportedly exercising.” 99. To apply – in my view to misapply – the administrative law doctrine of ultra vires, the Trial Chamber invoked its inherent jurisdiction. This jurisdiction exists to enable a court to fulfĳil its fundamental duty of providing a fair and efffective trial, by shaping its procedures to that end. It can go so far as to stop an unfair trial in its tracks by declaring it an abuse of process of the court. This may be a reaction to an unfair decision of the Registrar – e.g. to starve the defence of funds – but it does not involve the exercise of a judicial power over him. The Trial Chamber cited various ICTR decisions which establish the inherent jurisdiction to deal with abuse of process, but these cases are not authority for the proposition the court derived from them, namely “we rule that the court’s inherent jurisdiction does extend to the control and supervision of offfĳicers of the court in the exercise of their statutory and related functions.”32 100. This ruling was an error. There was no authority for it, and it conflicted with the ICTR precedents. It usurped the supervisory role allocated by the Statute and Agreement to the President of the court and (as the Registrar’s employer) to the Management Committee. The court’s Agreement and Statute calls for judges qual- ifĳied in international and criminal law, not in administrative law. The Trial Chamber embarked on some discussion of the maxim delegates non potest dele- gare, by which it concluded that the Acting Public Defender “could not perform the duties that he purported to be performing nor could he take decisions in relation thereto and that if he did, as indeed he did, it was ultra vires his powers and that consequently the said decisions were null and void.” The maxim is not a principle of administrative law, but rather a test to ensure that statutory discretions are exercised by the proper authority.33 In a quite common situation where an

32 Brima, para. 62. 33 Wade and Forsythe, Administrative Law, 8th Edition, Oxford, p. 316. 1114 part iii

Acting offfĳicial has been appointed to a position which had not yet been permanently fĳilled, and has taken a proper decision which had the full support of the Registrar, there can be no basis for a Trial Chamber to declare that decision ultra vires. 101. In my judgement, the decision in Brima should not be followed. Trial Chambers have specifĳic powers to review certain administrative acts, and Directives issued by the President of the Court may delegate his supervisory power to the Trial Chamber or a member thereof in respect of particular matters – such as reviewing a Principal Defender’s decision to reject an application to withdraw counsel. Otherwise, Trial Chambers have no general administrative jurisdiction. They may invoke an inherent jurisdiction, where the rules and directives are silent, to ensure that trial progress is efffective and fair and they may complain and warn about any administrative acts which adversely afffect their work. Otherwise, they must observe the distinction between the judicial function of the chambers and the administration of the court, which is subject to the supervision of the President in the manner outlined by Justice Pillay and to the policy direction of the Management Committee.

Conclusion

102. This motion is itself an abuse of process because it seeks to reverse an order of the court not by appeal or by a request for variation, but by reviewing a decision of the Registrar to implement it. I concur with my other colleagues that the motion must be dismissed. In respect of the arguments addressed to this Appeals Chamber by the parties, I have reached the following conclusions: (i) Dissenting or concurring opinions must be appended to the judgement of the court and in a timely manner. If such opinions are not prepared so as to be available for appending within a reasonable time, the majority of the trial chamber may, at its discretion, proceed to deliver its judgements without further delay. (ii) Motions should not be fĳiled as “confĳidential” unless reasons are given and the classifĳication must be reviewed by the court as soon as practicable and thereafter kept under review. (iii) Article 17(4)(d) of the Statute does not vouchsafe to an indigent defendant the right to choose counsel. Assignments will be made by the Principal Defender from a roster of counsel qualifĳied according to Rule 45(C), although there is a duty to consult with a defendant and to take his preferences into account before an assignment is made. (iv) “Exceptional circumstance” requests by defendants or counsel should be made, in conformity with the directive, to the Principal Defender, interlocutory decisions – appeals chamber 1115

with Presiding Judge/Trial Chamber review only in the event of any refusal. (v) Withdrawal of instructions does not qualify, per se, as a “exceptional circumstance” and nor do threats, unless they are proved to be such as render counsel incapable of defending his client or such as to make counsel of reasonable fortitude fear for the safety of themselves or their families. (vi) Trial Chambers have inherent jurisdiction to rescind or vary orders and to reconsider interlocutory judgements if there has been a change of circumstances which has removed or altered the basis of the original order. (vii) Trial Chambers do not have jurisdiction to supervise administrative actions of the Registrar or his offfĳicials, other than such specifĳic jurisdiction as is bestowed by the Rules or by Directives of the President. (viii) Until such time as the independence of his offfĳice is recognised by an amendment to the statute of the court, the Principal Defender works under the administrative supervision of the Registrar. In the spirit of the Rule change that created the offfĳice, the Registrar should allow it to work so far as possible with operational independence. Done at Freetown this day 8th day of November 2005.

THE APPEALS CHAMBER

Before: Justice Raja Fernando, Presiding Justice Emmanuel Ayoola Justice George Gelaga King Justice Geofffrey Robertson, QC Justice Renate Winter Interim Registrar: Mr. Lovemore Munlo, SC Date: 14 December 2005 PROSECUTOR Against Alex Tamba Brima Brima Bazzy Kamara Santigie Borbor Kanu (Case No.SCSL-2004-16-AR73)

APPENDIX TO THE SEPARATE AND CONCURRING OPINION OF JUSTICE ROBERTSON ON THE DECISION ON BRIMA-KAMARA DEFENCE APPEAL MOTION AGAINST TRIAL CHAMBER II MAJORITY DECISION ON EXTREMELY URGENT CONFIDENTIAL JOINT MOTION FOR THE RE-APPOINTMENT OF KEVIN METZGER AND WILBERT HARRIS AS LEAD COUNSEL FOR ALEX TAMBA BRIMA AND BRIMA BAZZY KAMARA

1. In my Separate and Concurring Opinion on the Decision on Brima-Kamara Defence Appeal Motion against Trial Chamber II Majority Decision on Extremely Urgent Confĳidential Joint Motion for the Re-Appointment of Kevin Metzger and Wilbert Harris as Lead Counsel for Alex Tamba Brima and Brima Bazzy Kamara of 8th December 2005, I refer, in paragraph 84, to a document entitled “Public Defender Proposal” and I announce that I will append it to my opinion. 2. The above mentioned document is attached to the present Appendix and shall be read together with my Separate and Concurring Opinion. Done at Freetown this day 14th day of December 2005.

Note for Management Committee

Public Defender Proposal International Criminal Courts have yet to devise a satisfactory means of attracting only experienced, competent and honest defence counsel, so as to comply with the human rights principle that adversary trials should manifest an “equality of arms” (i.e. reasonable equivalence in ability and resources of prosecution and defence). At Nuremberg, the inequality was especially pronounced. Allied judges and prosecutors and senior Registry stafff lived in the same hotel and socialized to the exclusion of the German defence lawyers. The British Bar had refused to permit members to take defence briefs and provincial German bar associations took reprisals against members who defended Nazis “too vigourously.” The defence lawyers, floundering in the alien environment of an anglo-american adversary trial, were given limited facilities to prepare their cases and little notice of prosecution evidence. At the ICTY and ICTR, defence lawyers complain that the court is a ‘prosecution entity’ because of the closeness of the Registry and the Prosecutor’s offfĳice. The prosecutor, of course, is the fĳirst to be appointed, and works closely with the Registrar in the start-up phase. The ‘Registrar’s list’ system adopted by these tribunals for indigent defendants means that the Registrar keeps a list of counsel from all over the world who are prepared to defend at The Hague or Arusha. After a particular defendant is indicted, he can chose a counsel from the list or a counsel who qualifĳies to be added to the list. This counsel is then instructed by the Registrar, at a fee of US $100-200 per hour, far beyond any fee obtainable in Africa for criminal work, and will normally bring in other lawyers (up to 5 per defendant) and obtain permission from the Registrar or the court to spend more money on experts, investigators etc. The “Registrar’s List” system derives from the old English ‘dock brief’ where a poor man in the dock could select from amongst the idle barristers sitting in court an interlocutory decisions – appeals chamber 1119 advocate to defend him, who would be paid a guinea from public funds. This developed into “the soup list” (‘soup kitchens’ fed the poor) at Crown Courts, where young or unsuccessful barristers would put their names on a list which the court clerk would give to indigent defendants to select a trial counsel. The ‘dock brief’ and ‘the soup list’ were unattractive expedients before a proper legal aid system developed: The “Registrars List” has caused many problems at the ICTR and ICTY, inter alia 1. Many mediocre, and a few dishonest, lawyers volunteer and qualify for the list because they have practiced for more than 10 (or 7) years; 2. The defendant will have no knowledge of them in any event, and no criteria for informed choice; 3. Often the chosen lawyer turns out not to be available, or when chosen turns out to have many home commitments, thus causing delays in ICT trials; 4. The chosen lawyer comes to the case with no local background, and with no solicitor or defence counsel to assist. He is up against a prosecution which has been working on the case for years. He asks (justifĳiably) for more legal assistance, and applies to the court for a delay of a year or so in order to investigate and prepare the defence. 5. Defendants who wish to delay trials sack their counsel and chose another on the list. Then they sack him and ask for another! 6. The corrupt practice of “fee-splitting” occurs when ambulance-chasing lawyers on the list approach defendants’ families and offfers to share the defence counsel fee (massive, by African standards) if they are selected. The result: men against whom there is a prima facie case of genocide own Armani suits and their families enjoy satellite television! 7. According to the Ackerman report, some listed counsel have become notorious for “excessive lawyering” – making more motions than necessary in order to rack up fees. These and other aspects of the “Registrar’s List” are giving international criminal justice a bad name. The cost of these “counsel of choice” from around the world is extortionate – up to US$1m per defendant at the ICTR. The UN audit committee in 1999 (chaired by Jerome Ackerman) identifĳied some of these problems, and suggested that legal fees should be certifĳied to the court by counsel and might be reduced if delays had been caused by defence tactics, but this is hardly a satisfactory solution. Mariana Goetz, our principal legal offfĳicer, previously co-ordinated one of the busi- est Chambers at the ICTR, she recalls leaving to deal with international counsel from the Registrar’s List who were utterly bewildered (some had never been to Africa before). She has explained to me in some detail the damaging consequence of giving indigent defendants a “counsel of choice” power over their defence teams, in efffect controlling the receipt of public money, by their lawyers and the 1120 part iii choice of investigators (who also receive lavish payment from the Tribunal, and may be relatives or political operatives). I believe that the ‘Registrar’s List’ is an obsolete and inappropriate system, and should be replaced by employment of full-time defence counsel with considerable experience and demonstrable ability. The ‘Registrar’s List’ arrangements in any event reflects a confusion between the ‘counsel of choice’ principle and the right of indigent defendants to legal aid. These two rights are quite separate. Article 17 of the Special Court statute promises that each defendant shall be entitled “to communicate with counsel of his or her own choosing” (17(4)(b))– but subject to that counsel’s availability and willingness to accept such communications, a contingency almost invariably depending on payment of his fees! Then Article 17(4)(d) promises the right “to defend himself of herself in person or through legal assistance of his or her own choosing; to be informed, if he or she does not have legal assistance, of this right; and to have legal assistance assigned to him or her, in any case where the interests of justice so require, and without payment by him or her in any such case if he or she does not have sufffĳicient means to pay for it.” Thus it is clear that a defendant has the right under our statute, when put on trial, a) to defend himself, or b) to be assisted in his defence by counsel of his choice (in practice, if he can pay for this legal assistance) or c) if indigent, and the interests of justice require, to have legal assistance provided free of charge. The statute places an obligation on the court to assign legal assistance to the poor defendant if this is in the interests of justice. It says nothing about giving him the right to choose a lawyer for whom the court will pay. The court’s only duty is to assign him a competent lawyer, which he can accept or not. The interests of justice usually will require such assignment for trial and appeal and for a bail application, if the defendant is too poor to hire private counsel or where he decides to defend himself and the court (as in Milosevic) thinks that in the interests of justice it should appoint an amicus to take any legal points on his behalf. There is nothing in Article 17 or in the court’s statute that requires a “Registrar’s List.” So how best do we discharge our duty of assigning legal assistance to the poor? The most cost-efffective and competence –efffective way must be to establish and build up a defence unit that can take on the prosecutors and so ensure “equality of arms.” The prosecutor has a number of trial counsel, and some lawyers and investigators preparing cases, as well as support stafff. For indigent defendants (who interlocutory decisions – appeals chamber 1121 may comprise over half the indictees) we should supply a smaller but nonetheless competitive unit. We need a principal defender (D2 level) installed as soon as possible, with four trial counsel (P4) and two local lawyers (already hired) and several investigators and some support stafff. Once the PD is appointed, he or she can build up the stafff necessary to deal with the prosecutor’s indictments, at levels which can be subject to management committee approval. The system would work like this: Soon, the prosecutor will bring down his indictments. Imagine 25 of them, with 15 indictees arrested and in custody, 10 of whom claim to be indigent. Two of the latter group insist on defending themselves, one manages to obtain a lawyer “pro bono” and another refuses to have any part in the trial. The fĳive wealthy defendants all hire counsel. The prosecutor seeks three consecutive trials, with 5 defendants in each. The PD’s role will be to take general charge of defence arrangements. He or his counsel will, if instructed, make bail applications for any defendant. His offfĳice will research legal issues and background material, and give such assistance in these respects to the privately hired counsel and the pro bono counsel, if they welcome it (they almost certainly will). But his main function will be to implement Article 17(4)(d) by assigning counsel to indigent defendants. He will have, say, 4 experience and independent defence counsel employed in his offfĳice, who can each be assigned two defendants. The PD himself may argue interlocutory legal issues, together with some of the private counsel. The PD may also be requested by the Court to arrange an amicus for the defendants who are representing themselves or who refuse to acknowledge the court, so that at least legal points may be taken expertly on their behalf, whether they like it or not. By these means the duty to assign counsel to the indigent will be amply satisfĳied. Each poor defendant will have one competent and independent trial counsel, who is not overworked (having to represent only one or at most two defendants in other trials) and who is present in Sierra Leone full-time to work on his case. That counsel will have a defence unit support structure – researchers, investigators, casework lawyers – to draw upon as necessary. There will be an “equality of arms” with the prosecution by time of trial and no question of fee-splitting cannot arise because there will be no incentive. This does not mean an exclusion of ‘outside’ lawyers. The PD, if he considers there is a serious conflict, may arrange for a particular defendant to be represented by an ‘outside’ lawyer. He may bring in an outside lawyer with special experience to argue a diffferent question of law or to act as an amicus in a particular trial. An indigent defendant can, of course, sack the lawyer assigned by the PD, who may 1122 part iii offfer to assign another to him, but if this is refused then (subject to any application to the court) he will have to defend himself or obtain pro bono assistance. Proper provision for defence costs may not have been made in the original budgetary estimates. Certainly if the “Registrar’s List” approach is adopted, then the costs will greatly exceed those of the PD model and the delays caused by waiting upon counsel from abroad will be severe. “Fee-splitting” will become an issues, as it has in other international courts. The need to make proper provision for the defence is being urged rather late in the day. The PD should be in place by the time the indictments come down, to make bail applications and begin work on collecting defence evidence and on interlocutory challenges. Regrettably, this may not be possible, and I fear that NGOs will criticize the management committee over this failure. The Special Court has already been subjected to published criticism over its failure to make proper provision for the defence. In the December 2002 Criminal Bar Association newsletter (UK) a barrister from “No peace without Justice” wrote of the court: “There appears to be no proper provision for defence. This is a feature which emerges again and again in fledgling court systems. There is a popular belief that the prosecution of international crimes require paying large sums of money to international prosecutors, and leaving defendants with the cold comfort of the right to be represented by counsel without any consideration as to how this will be funded…each new court system appears to be taken entirely by surprise by the need to pay for defence counsel of equal skill and experience to prosecutors in order to ensure equality of arms and fair trials.” I think this criticism is merited and the position needs to be addressed so that it cannot be repeated, at least in relation to our court. It will be bad publicity for the court if we are perceived to be locking up penniless people before putting in place a system that provides some form of legal aid for bail applications. We must advertise immediately (February 2003) for a PD and some supporting trial counsel at P4 level, but quite frankly most advocates who are any good will be booked up months ahead. Of the few who are more-or-less immediately available, some will be reluctant to sign up for three years. So the Registrar should be given some discretion – perhaps to appoint the PD on a part- time basis at fĳirst, or to offfer one or two year contracts, subject to an agreement to be available for any appeal proceedings. I trust the management committee will approve an immediate search for a principal defender and for lawyers, etc., to stafff the defence unit. I append a draft advertisement. Geofffrey Robertson QC 7th February 2003 interlocutory decisions – appeals chamber 1123

TRIAL COUNSEL SIERRA LEONE SPECIAL COURT The Registrar, pursuant to the “equality of arms” principle, seeks four experienced trial counsel to work under the supervision of the Principal Defender. Successful applicants will have been in unblemished practice, specializing in criminal or international human rights law, for at least seven years: they must have a reputation for fearless and independent representation of defendants charged with serious crimes. Counsel will be assigned by the Principal Defender to represent indigent defendants before the Special Court in respect of bail applications, interlocutory motions, and at trials and on appeal.

PRINCIPAL DEFENDER SIERRA LEONE SPECIAL COURT The Special Court for war crimes in Sierra Leone has been established by agreement between the United Nations and the Sierra Leone Government to try persons accused of bearing the greatest responsibility for war crimes and crimes against humanity committed in that country since November 1996. The prosecutors will shortly fĳile indictments against those they accuse of bearing such responsibility. The Registrar, pursuant to the “equality of arms” principle, now seeks an experienced criminal trial lawyer with a reputation for able and fearless defence, and some proven administrative ability, for appointment to the offfĳice of Principal Defender. The duties will include setting up and stafffĳing a defence support unit; assigning and retaining counsel for indigent defendants; making arrangements for bail applications; conducting (either personally or by assigning other counsel) legal arguments for indigent defendants or as an amicus) at interlocutory, trial and appeal stages; directing such investigation, research, witness searches and the like as appears necessary for adequate preparation of assigned cases on behalf of indigent clients; liaison with and assistance to the court, the Registrar and (if requested) to counsel retained privately by other defendants.

IN THE APPEALS CHAMBER

Before: Justice A. Raja N. Fernando, Presiding Judge Justice Emmanuel Ayoola Justice George Gelaga King Justice Geofffrey Robertson Justice Renate Winter Interim Registrar: Lovemore Munlo, SC Date: 8 December 2005 PROSECUTOR Against Alex Tamba Brima Brima Bazzy Kamara Santigie Kanu (Case No.SCSL-04-16-AR73)

SEPARATE AND CONCURRING OPINION OF HON. MR. JUSTICE GEORGE GELAGA KING ON BRIMA-KAMARA DEFENCE APPEAL MOTION AGAINST TRIAL CHAMBER II MAJORITY DECISION ON EXTREMELY URGENT CONFIDENTIAL JOINT MOTION FOR THE RE-APPOINTMENT OF KEVIN METZGER AND WILBERT HARRIS AS LEAD COUNSEL FOR ALEX TAMBA BRIMA AND BRIMA BAZZY KAMARA

I. Introduction

1. This is an appeal by Alex Tamba Brima and Brima Bazzy Kamara (“the Appellants”) against the Impugned Decision in which their motion for the re- appointment of Kevin Metzger and Wilbert Harris as their Lead Counsel was dismissed (“former Lead Counsel”). By an oral order of 12 May 20051 and a written decision published on 20 May 2005 the Trial Chamber permitted former Lead Counsel for the Appellants to withdraw from the case to which they had been assigned on the grounds of threats to former Lead Counsel and their families.2 By a motion fĳiled on 24 May 2005 the Appellants sought the following Orders: a. That the Registrar re-assign former Lead Counsel; b. That the Acting Principal Defender do immediately enter a legal services contract with former Lead Counsel; c. That the Justices who re-confĳirmed the order not to re-appoint be recused from hearing the motion; d. That the decision of the Registrar not to re-assign Counsel be declared null and void and; e. Any other relief deemed fĳit and appropriate.3 2. Trial Chamber II dismissed the Motion to Re-Appoint on the ground that it was frivolous and vexatious. On 5 August 2005 the Trial Chamber granted the Appellants leave to fĳile an interlocutory appeal against the Impugned Decision. Notice of Appeal was fĳiled on 2 September 2005. 3. This interlocutory appeal which has turned out to be unusually and exceed- ingly protracted, voluminous and haphazard in its compilation and presentation and seems to be unnecessarily acrimonious, raises certain fundamental and vital issues pertaining to the conduct of a criminal trial that give me cause for concern and alarm. I am accordingly constrained to write this separate and concurring opinion to express my views not only on the substance of the appeal, but more immediately on those discordant matters which, if not nipped in the bud, may

1 Transcript. 2 (12 May 2005), lines 13–16 (“Oral Order Permitting Withdrawal”). 2 Decision on the Confĳidential Joint Defence Application for the Withdrawal by Counsel for Brima and Kamara and on the Request for Further Representation by Counsel for Kanu, fĳiled on 23 May 2005; and Corrigendum Decision on the Confĳidential Joint Defence Application for the Withdrawal by Counsel for Brima and Kamara and on the Request for Further Representation by Counsel for Kanu, fĳiled on 10 June 2005 (both hereinafter referred to as the (“Written Decision Permitting Withdrawal”). 3 Extremely Urgent Confĳidential Joint Motion for the Re-Appointment of Kevin Metzger and Wilbert Harris as Former Lead Counsel for Alex Tamba Brima and Brima Bazzy Kamara, pursuant to Articles 17(4)(C) and 17(4)(D) of the Statute of the Special Court for Sierra Leone and Rule 54 of the Rules of Procedure and Evidence and the Inherent Jurisdiction of the Court, fĳiled on 24 May 2005 (“Motion to Re-Appoint”). interlocutory decisions – appeals chamber 1127 end up adversely afffecting, if not undermining, the administration of justice in the Special Court.

II. Background

4. I shall, therefore, begin by adumbrating and dealing with those discordant and rather disruptive incidents which ought not and cannot be allowed to stand uncorrected, as otherwise the smooth running and proper functioning of the Trial Chamber II will be seriously jeopardised. From the records before this Appeal Chamber, it appears that it is the norm in Trial Chamber II that majority decisions and minority or dissenting opinions are not delivered, simultaneously as is required by law4 but instead a dissenting opinion is only published several weeks after the majority decision.

Refusal To Publish Dissenting Opinion 5. Incredibly, on at least one occasion, the publication of a dissenting opinion was deliberately blocked. I refer to the Dissenting Opinion of Justice Sebutinde from the Majority Decision on the Application to Reappoint Kevin Metzger and Wilbert Harris as Lead Counsel for 1st and 2nd Appellants. The written Majority Decision,5 consequent on the oral decision delivered by the Presiding Judge, Teresa Doherty on 12 May 2005, was published on 9 June 2005. Justice Julia Sebutinde issued her Dissenting Opinion on 11 July 2005, but Court Management, acting on instructions from the Registry, refused to publish via the SCSL website. 6. On 28 July 2005, Justice Sebutinde in a memorandum referred the refusal to me in my capacity then as Vice President and asked for redress. On the same day I convened a meeting of Hon. Justice Sebutinde, the then acting Registrar and the Legal Advisor to the Registrar, for the purpose of resolving Justice Sebutinde’s complaint. The result of the meeting was that I directed and ordered “that the Acting Registrar do instruct Court Management to publish the said Dissenting Opinion of Justice Sebutinde on the SCSL website forthwith.” Emphasis mine. 7. I had acted under Rule 21 of the Rules of Procedure and Evidence which provides: “The Vice President…shall exercise the functions of the President in case the latter is absent from Sierra Leone or is unable to act.”

4 Art. 18 Special Court Statute. 5 See note 3 supra. 1128 part iii

Despite my instructions that Court Management publish the Dissenting Opinion immediately and without delay, it was not published on the website until one week later on 4 August 2005.

Comment on Dissenting Opinion by Presiding Judge 8. A day after the publication of Justice Sebutinde’s Dissenting Opinion on the website, Trial Chamber II on 5 August 2005 published its Decision granting the Defence leave to fĳile an interlocutory appeal against the Impugned Decision. Annexed to that Decision is what is headed “Comment of Justice Doherty.” In that so-called Comment, Justice Doherty, the Presiding Judge, refers to the Dissenting Opinion of Justice Sebutinde and then posits that “some facts stated are incorrect or misleading.” She then goes on to pronounce: “I am entitled to put the following before the Appeals Chamber,” as if she is a party to this Appeal! The “following” consisted of a fĳive paragraph review by Justice Doherty of Justice Sebutinde’s Opinion in the course of which she purported to correct and amend portions of the Opinion. I must state that she was ill-advised to have embarked on such course of action. 9. By law, “all judges are equal in the exercise of their judicial functions”6 and shall be independent in the performance of their functions.7 No Judge has the mandate or jurisdiction to sit in judgement over the Dissenting Opinion of another Judge of coeval jurisdiction. It is hoped that such practice will not recur. Where there is disagreement, there are channels to pursue, but certainly not by “Comment” annexed to a Decision granting leave to appeal.

Delivery of Majority and Minority Decisions 10. I now revert to the fact that the majority and dissenting judgements were not delivered simultaneously. Article 18 of the Statute provides: “The Judgement shall be rendered by a majority of the Judges of the Trial Chamber and shall be delivered in public. It shall be accompanied by a reasoned opinion in writing to which separate or dissenting opinions may be appended.” On a proper construction of that provision, separate or dissenting opinions should be delivered at the same time as the majority decision and not days or weeks later. 11. It is the duty and responsibility of the Presiding Judge of the Trial Chamber after consultation with the other Judges to fĳix a date when the Judgement of the Court is to be delivered. On that specifĳied date, where a majority Judgement is

6 Rule 17(A). 7 Art. 13.1 of the Special Court Statute. interlocutory decisions – appeals chamber 1129 rendered, it must be accompanied by a reasoned opinion in writing to which separate or dissenting opinion may be appended. The Presiding Judge must ensure that sufffĳicient time is given to his or her colleagues, who may want to deliver separate or dissenting opinion, to enable them to do so at the specifĳied date. That way, time will begin to run from the date all the opinions are delivered. Otherwise it necessarily follows, in my judgement, that time for appealing or seeking leave to appeal will only begin to run after the publication of the dissenting opinion. 12. To say that “a court delivering a majority decision is not even obliged to append a dissenting opinion”8 is erroneous having regard to Article 18 of the Statute. In my judgement a court delivering a majority decision must append a separate or dissenting opinion where there is one. 13. I opine that on a proper construction of Article 18 of the Statute the Judgement of the Court consists of both the majority (which binds the Court) and the separate or dissenting opinions. Where there is a separate concurring or dissenting opinion they should be delivered or published at the same time as the majority decision in accordance with the directions in paragraph 10, supra. 14. Rule 88(C) of the Rules and the provisions of Practice Directions derive their efffĳicacy from the Special Court Statute and they cannot be construed so as to override the clear provisions of the Statute.

III. Notice and Grounds of Appeal, Responses and Reply

15. On 2 September 2005, counsel for Brima and Kamara fĳiled a Notice of Appeal with the following 7 grounds of appeal: 1. Error in law and/or fact due to the Trial Chamber’s erroneous interpretation of the rights of the accused persons as provided under Article 17(4)(c) and (d) of the Statute of the Special Court. 2. Error in law and/or fact due to the denial of the Defence request for an Order to the Acting Principal Defender to enter into a legal services contract with Messrs Metzger and Harris. 3. Error in law and/or fact due to the ruling that the Defence request for an “open and public hearing” is an application for further relief in a Reply and that “there has been no submission to support or explain this application for a public hearing.” 4. Error in law and/or fact due to the erroneous interpretation of Rule 45(E) of the Rules of Procedure and Evidence to prohibit re-appointment of former Lead Counsel.

8 Separate and Concurring Opinion of Judge Lussick in granting leave to appeal. 1130 part iii

5. Error in law and/or fact due to the Trial Chamber’s treatment of the original motion as an application for review of its earlier decision on the motion for withdrawal by Messrs Metzger and Harris. 6. Error in law and/or fact due to the decision that “counsel are not eligible to be re-appointed since they are no longer on the list of qualifĳied counsel required to be kept under Rule 45(C). 7. The Trial Chamber erred in law and/or fact due to its ruling that “there was no determination of the issue of re-appointment of Counsel, there are no grounds for submitting that any Judge recuse him or her self.” 16. The relief sought is that this Appeals Chamber makes the following declarations: a. That refusal of the Registrar and Trial Chamber II to re-appoint Messrs Metzger and Harris as Lead Counsel amounted to a violation of the statutory rights of the accused as provided in Article 17(4)(d) of the Statute. b. That the Registrar’s decision not to re-assign Messrs Metzger and Harris and also the removal of their names from the list of eligible counsel is ultra vires and null and void. c. That the Trial Chamber has the inherent jurisdiction and power to review the Registrar’s Decision not to reassign Messrs Metzger and Harris and the Registrar’s Decision to remove those counsel’s names from the List of Qualifĳied Counsel. d. That Justices Doherty and Lussick having advised the Registrar against the re-appointment of the two Counsel should properly have recused themselves from hearing the motion on their reappointment. 17. On 9 September the 2nd Respondent (The Principal Defender) fĳiled a Response to the Appeal in which, inter alia he supported the Grounds of Appeal. On 12 September 2005 the 1st Respondent (The Registrar) fĳiled his Response to the Appeal which he opposed. A day after, on 13 September 2005, the 1st Respondent fĳiled what is labelled “First Respondent’s Additional Motion to the Interlocutory Appeal of Alex Tamba Brima and Brima Bazzy Kamara and the Response by the Principal Defender (The Second Respondent).” That document is not in fact an additional motion, but rather additional submissions and a further Response to the submissions of the Second Respondent. On 16 September 2005, the Second Respondent fĳiled a Response to the First Respondent’s “Additional Motion.” On 16 September 2005 the Appellant’s fĳiled their Reply to 1st Respondent’s Response.

Summary of Submissions of the Parties

(a) The Appellants 18. The chief submission of the Appellants is that there is no legal basis for the Registrar, supported by the Majority of Trial Chamber II, not reassigning former interlocutory decisions – appeals chamber 1131

Lead Counsel. They contend that in matters relating to the assignment of Defence Counsel the Accused has the right to be consulted as to his wishes and the Registrar may only refuse those wishes on “reasonable and valid grounds” including proven incompetence, misconduct or serious violations of Codes of Conduct or where Counsel’s name has been removed from the list of Qualifĳied Counsel pursuant to Article 13 of the Directive on Assignment of Counsel.9 19. They further submit that the Trial Chamber has inherent Jurisdiction to allow a motion alleging a violation or denial of the Statutory right of the Accused persons in the overriding interests of justice and having regard to the need for a fair trial. The Appellants stress that the right of the Accused to a public hearing is not limited to the main Trial, but also to interlocutory applications. 20. They complain that the Trial Chamber was wrong in law and fact by erroneously considering the Motion to Reassign as an application to review the application to withdraw under Rule 45(E) and by dismissing the former as “frivolous and vexatious.” They submit that the Trial Chamber’s decision that “Counsel are not eligible to be reappointed since they are no longer on the list of qualifĳied Counsel required to be kept under Rule 45(C)” was in the circumstances wrong in law.

(b) The Second Respondent 21. The Second Respondent supports the grounds of Appeal. They submit that the rights of the accused are enshrined in Article 17 of the Statute and particularly Article 17(4)(c) and (d) which should be construed having regard to the mandatory manner in which they are couched. That although the jurisprudence indicates that the Accused person’s right to counsel of his own choosing is not absolute, the Accused’s motion for re-assignment is distinguishable.10 They refer to the interpretation of Article 6(3)(C) of the European Convention of Human Rights which is identical with Article 17(4)(d) of the Statute and the meaning to be given to “legal assistance of his or her own choosing.” 22. With regard to the denial of the Accused’s right to a public hearing pursuant to Article 17(2) of the Statute on the ground the Accused’s outgoing Counsel had sought to have facts under seal and ex parte. The Second Respondent argues that such action by Counsel should not have been considered in matters relating to Accused’s right to a public hearing. 23. The right of the Accused to a public hearing should not have been compromised by their Counsel’s action. The Second Respondent complains that the Trial Chamber failed to diffferentiate between the Accused person’s Motion for Re-appointment of Counsel and Counsel’s Motion for Withdrawal. The Trial

9 Brima-Kamara Defence Appeal Motion p. 4. 10 Defence Response pp. 6 and 7. 1132 part iii

Chamber erroneously perceived the Joint motion for the Re-appointment of Kevin Metzger and Wilbert Harris as Lead Counsel for Alex Tamba Brima and Brima Bazzy Kamara, fĳiled pursuant to Art. 17(4)(d) of the Statute as a request for review of an earlier motion for withdrawal by the former Counsel. 24. The Second Respondent submits that it is not within the power of the Registrar to remove names of counsel from the list and more so without establishing just cause. The Acting Registrar, Mr. Kirkwood, had requested the Deputy Principal Defender to strike the former Lead Counsel’s names offf the List, but she had declined as the matter was, inter alia sub judice.11 They complain that when the Acting Registrar fĳinally struck Counsel’s names offf the List it was done without the consent and despite the legal advice from the Defence Offfĳice to the contrary. They stress that as the head of the Defence Offfĳice, the Second Respondent should discharge his duties and functions in guaranteeing the rights of the Accused persons independently without any undue interference. That by virtue of Rule 45 of the Rules and Article 13(A), (B), (E) and (F) of the Directive on the Assignment of Defence Counsel the Second respondent in his capacity as Principal Defender is vested with the power to compile, maintain and place counsel on the List of Qualifĳied Counsel and to remove counsel who do not qualify. 25. In support of that submission the second Respondent refers to the dictum of Justice Boutet in Prosecutor v. Hinga Norman et al., that the roles of assignment, withdrawal and replacement of counsel is “essentially a role and function of the Principal Defender.”12 They contend that the First Respondent’s reason that “security concerns” constituted “just cause” could not be good reason as the “security concerns” of the withdrawn counsel were not even established nor investigated by the 1st Respondent.13

(c) The First Respondent 26. The First Respondent opposes the appeal and submits that there is no absolute right of an Accused to be provided with counsel of their choosing and that this is recognised by the Appellants in their Original Motion.14 27. The First Respondent submits that the right to a hearing in open Court is not absolute and reasons must be presented to the Trial Chamber as to why there should be an Open Court hearing.15

11 Letter of 26 May 2005 to Mr. Kirkwood. 12 Separate and Concurring Opinion of Justice Boutet on Request for Withdrawal as Court Approved Counsel for 1st Accused, 1 March 2005, page 4 para. 4 (SCSL doc 356). 13 Para. 3 of 1st Respondent’s Response (SCSL Doc No. 290). 14 Extremely Urgent Confĳidential Motion for the Re-Appointment of Kevin Metzger and Wilbert Harris as Lead Counsel for Alex Tamba Brima and Brima Bazzy Kamara Pursuant to Article 17(4)(C) and 17(4)(D) of the Statute and Rule 54 of the Rules. 15 Respondent’s Response p. 3 para. 5. interlocutory decisions – appeals chamber 1133

28. He avers that Messrs Metzger and Harris had both applied to withdraw from the trial on the basis that they were not receiving full instructions from the Accused and that they had received unspecifĳied threats. The Trial Chamber allowed them to withdraw stating that they doubted that Counsel “would be able to represent their clients to the best of their ability.”16 In the circumstances, the 1st Respondent states that “the Principal Defender acted reasonably within his powers under Rule 45(C) of the Rules in refusing the request for the re-appointment of Counsel by the Accused, particularly where there were no new circumstances which would override the observations of the Trial Chamber as to the ability of Counsel to efffectively defend the Accused.”17 29. The First Respondent maintains that the trial Chamber has power “to review an administrative decision of the Registrar and, in this case, the Principal Defender, as it afffects the right to a fair trial of the Accused under Article 17(4)(d) of the Statute.”18 They contend further that “the right to review must also give full authority to the Principal Defender’s powers under the legislation and not be used as a means of overruling a decision with which the parties or even the Trial Chamber disagree.”19 30. The First Respondent in support of the Majority decision of the Trial Chamber reiterates that the “Motion was a ‘backdoor’ attempt to review the original order of the Trial Chamber in allowing Counsel to withdraw. It never was a separate application from the Original Motion of Withdrawal of Counsel.”20 They submit that “the Appellants fĳiled a Motion for the Re-Assignment of Counsel but this was neither an application to vary the Order of 12 May or to have it rescinded, nor was it an appeal against the Order of 12 May.”21 31. As for the request that Justices Doherty and Lussick recuse themselves this Respondent states that those Justices acted within their authority and there are no grounds upon which to seek that they recuse themselves.

(d) Appellants Reply to 1st Respondent’s Response 32. The Appellants take issue with the 1st Respondent on his Response and repeat their earlier submissions. The Appellants “respectfully question the legal validity of the Honourable Justice Doherty’s ‘personal comment’ appended to a totally unrelated matter. The Defence takes issue with this procedure and submits

16 Decision on Motion for Withdrawal, para. 60. 17 1st Respondent’s Response p. 6, para. 20. 18 Ibid., para. 24. 19 Ibid., para. 26. 20 Ibid., para. 47. 21 Ibid., para. 55. 1134 part iii that it is an irregular procedure engendering a serious violation of the accused persons’ rights to a fair trial. It is the view of the Defence that the ‘personal comment’ was intended to unduly influence the Appeals Chamber. Honourable Justice Doherty should not have profffered a ‘personal comment’ on a Dissenting Opinion containing pertinent legal arguments, which favour the Accused. The Defence contends that the Honourable Justice Doherty’s ‘personal comment’ makes her a party to the Appeal, which she is not. After having issued a majority decision on 9 June 2005, the Honourable Justice Doherty is functus offfĳicio and cannot, therefore, purport to change that decision or dissenting opinion in such an unconventional manner.22 The Defence appeals to the Honourable Justices of the Appeals Chamber not to consider that ‘personal comment.’23 33. The Appellants adopt mutatis mutandis the submissions contained in 2nd Respondent’s Response and reafffĳirm their adoption of the Dissenting Opinion in its entirety in support of this Reply.

The Principal Issues and Their Determination

34. In my judgement from the foregoing submissions of the parties, the principal questions which arise for determination in this appeal are: i. Was the proper procedure followed when Counsel Kevin Metger and Wilbert Harris applied orally on 3 May 2005 in the middle of the trial to Trial Chamber II to withdraw their respective representation of Alex Tamba Brima and Brima Bazzy Kamara? ii. Was the Registrar the proper person to remove the names of the two Counsel from the List of Highly Qualifĳied Criminal Defence Counsel (“the List”) more so when the matter was sub judice? iii. What are the functions and powers of the Registrar and Principal Defender vis-à-vis the Compilation and Maintenance of the List? iv. How may Counsel be reappointed following their withdrawal? Must reappointed Counsel be of Accused’s own choosing?

Withdrawal of Counsel Kevin Metzger and Wilbert Harris 35. Guidance on this matter can be found in the ‘Directive on the Assignment of Counsel,’ (“the Directive”). It is important to state that the Registrar, in consultation with the President of the Special Court issued the Directive laying down the conditions and arrangements for the Assignment of Counsel to an Accused or

22 T. 12 May 2005, p. 9-10, lines 25–29 and p. 10, lines 1-20, where the same Hon. Justice made another misplaced personal remark on one of the withdrawn Counsel, in his absence. 23 Reply to 1st Respondent’s Response p. 6 para. 16. interlocutory decisions – appeals chamber 1135

Suspect.24 The Directive derives its validity and statutory efffĳicacy from the Agreement between the United Nations and the Government of Sierra Leone on the Establishment of the Special Court signed in Freetown on 16 January 2002, and the Statute of the Special Court for Sierra Leone annexed to that Agreement and, in particular, the rights guaranteed all individuals appearing before the Special Court under Article 17 of the Statute, including the right to Counsel, and the rights of a suspected or accused person or detainee under international law. The Directive is also issued pursuant to the Rules of Procedure and Evidence (“the Rules”) and more particularly, Rule 44, 45, 45bis and 46 of the Rules. 36. Withdrawal of Assignment of Counsel is provided for in Article 24 of the Directive. The relevant portions of Article 24 reads:

(A) The Principal Defender may: (i) in exceptional circumstances, at the request of the Suspect or Accused, or his Assigned Counsel withdraw the assignment of Counsel. (ii) in exceptional circumstances, at the request of the Assigned Counsel withdraw the nomination of other Counsel in the Defence Team; (B) The Principal Defender shall withdraw the assignment of Counsel or nomination of other Counsel in the Defence Team: (i) in the case of serious violation of the Code of Conduct; (ii) upon the decision by a Chamber for misconduct under Rule 46 of the Rules. (iii) where the name of the Assigned Counsel has been removed from the list kept by the Principal Defender under Rule 45(C) and Article 13 of this Directive. (D) The Principal Defender shall immediately assign a new Counsel to the Suspect or Accused, and where appropriate, authorise the nomination of other Counsel in the Defence Team… (E) Where a request for withdrawal, made pursuant to (A) has been denied, the person making the request may seek review of the decision of the Principal Defender by the Presiding Judge of the appropriate Chambers. (G) Where the assignment of Counsel…is withdrawn by the Principal Defender pursuant to paragraph (B)(i) and (iii), Counsel afffected by withdrawal may seek review of the decision of the Principal Defender by the Presiding Judge of the appropriate Chamber. (Emphasis mine)

Was the procedure laid down in Article 24 followed? 37. The records reveal that during the trial of the Accused persons in Trial Chamber II on 3 May 2005, an oral application was made by both Mr. Kevin

24 Preamble to the Directive on the Assignment of Counsel. 1136 part iii

Metzger and Mr. Wilbert Harris to withdraw from the case as counsel. The Transcript reveals: “Mr. Metzger:…In those circumstances I would seek, as is courteous and proper, the leave of this Trial Chamber to withdraw from this case as Counsel for Alex Tamba Brima. I will not play a further part in this case unless and until his instructions change.”25 “Presiding Judge: Mr. Metzger, I will not invite you to say anything further until I have heard the stance of other counsel in the case…Mr. Harris?” “Mr. Harris: Your Honour, yes. My position regrettably, and I do say very much regrettably is the same as my learned friend Mr. Metzger…” 38. It is of the greatest signifĳicance to highlight the fact that crucially and timeously, Ms. Monasebian, who was Principal Defender at that material time, did call the attention of the Judges of Trial Chamber II to Article 24 of the Directive and she did so quite succinctly.’ “Ms. Monasebian: But what I would just like to simply offfer your Honours is that pursuant to Article 24 of the Directive of Assignment of Counsel, it is initially within my purview for Defence Counsel to make that request to me ex parte. So I think that Mr. Metzger’s suggestion that this be done on an ex parte basis is in keeping with the spirit of Article 24, that would say that the counsel would come to the Principal Defender or, if the Principal Defender denies the request, the Judges, because there is that remedy as well in Article 24, to hash this matter out…”26 (Emphasis mine) 39. If the Judges had paused to read Article 24 cited to them by the Principal Defender, it would have been quite clear to them that the application for withdrawal was to be made in the fĳirst instance to the Principal Defender and NOT to the Trial Chamber (Art. 24(i)). It is only where the Principal Defender has denied a request for withdrawal that the person making the request may seek review of the Principal Defender’s decision by the Presiding Judge of Trial Chamber II and not by all the Judges of that Chamber (Emphasis mine). 40. No such request for withdrawal was made to the Principal Defender and consequently there could have been no request for review by the Presiding Judge of Trial Chamber II. And yet in the face of all these conditions precedent which had not been observed or fulfĳilled, and in clear breach of the provisions of Article 24, the Presiding Judge thought it fĳit to order that the Defence Counsel fĳile their submissions to withdraw “by Thursday at the opening of the Registry…Prosecution will fĳile reply by Friday at 2.00pm and, if appropriate, may include a reply pursuant to Rule 24 of the Rules. Sorry, I have corrected myself this on this draft: It is Article 24 on the Assignment of Counsel … and I correct myself yet again.

25 Transcript of 3 May 2005, p. 3 lines 2–5. 26 Ibid., p. 5 lines 8–17. interlocutory decisions – appeals chamber 1137

The application from Counsel shall be under seal, confĳidential and ex parte. The Principal Defender is at liberty to fĳile any submission which the Principal Defender thinks relevant in the light of the situation.”27 The Presiding Judge later amended her Order to the efffect that Defence and Prosecution “fĳile by Thursday at the opening of the Registry at 9.00am.” 41. In my judgement the Trial Chamber with respect, was rather hurried and precipitate in making the aforesaid orders and ignoring the provisions of Article 24 of the Directive. There is hardly any excuse for this since the Principal Defender had brought Article 24 to their Chamber’s attention.

Rule 45 of the Rules of Procedure and Evidence 42. In the majority Decision the Trial Chamber purported to act under Rule 45(E) of the Rules. In my judgement the Trial Chamber misinterpreted the Rule. Rule 45 of the Rules must be read and interpreted as a whole. It is headed “Defence Offfĳice” and it imposes on the Principal Defender the obligation and responsibility to ensure protection of the rights of suspects and accused. The Defence Offfĳice is headed by the Principal Defender whose functions and powers are listed in the various subrules. As I stated earlier,28 the Preamble to the Directive links the genesis of the Directive, inter alia to the Rules of Procedure and Evidence and in particular Rules 44, 45, 45bis and 46. Rule 45(E) states: “Subject to any order of a Chamber, Counsel will represent the accused and conduct the case to fĳinality. Failure to do so, absent just cause approved by the Chamber, may result in forfeiture of fees in whole or in part. In such circumstances the Chamber may make an order accordingly. Counsel shall only be permitted to withdraw from the case to which he has been assigned in the most exceptional circumstances. In the event of such withdrawal the Principal Defender shall assign another Counsel who may be a member of the Defence Offfĳice, to the indigent accused.” In my judgement, on a proper construction of Rule 45(E), taking into consideration Article 24 of the Directive, the proper authority vested with power to permit Assigned Counsel to withdraw in the most exceptional circumstances is the same authority as that stated in Article 24(A)(i) of the Directive, namely, the Principal Defender. Not the Trial Chamber. It is only when the Principal Defender denies Assigned Counsel’s request to withdraw that the latter may seek review of the Principal Defender’s decision by the Presiding Judge of the Trial Chamber. Not by the Judges of the Trial Chamber. See Article 24(E) of the Directive. I have come to

27 Ibid., p. 7 lines 24–29 p. 8 lines 1–7. 28 Vide para. 35. 1138 part iii this decision bearing in mind that the Appeals Chamber may afffĳirm, reverse or revise the decisions taken by the Trial Chamber, see Article 20(2) of the Statute. 43. It must be noted that on an examination of Rule 45 of the Rules, where an application or request is to be made to a Chamber, it is clearly so stated in the Rule. For example Rule 45(D). Although that Rule states in emphatic terms that request for the replacement of assigned counsel shall be made to the Principal Defender, it then goes on to provide that under certain circumstances and for well-defĳined reasons such request may be made to a Chamber. Let me reproduce the Rule which speaks clearly for itself: 45(D) “Any Request for replacement of an assigned counsel shall be made to the Principal Defender. Under exceptional circumstances, the request may be made to a Chamber upon good cause being shown and after having been satisfĳied that the request is not designed to delay proceedings.” (Emphasis mine) In Rule 45(E) there is no such power given to a Chamber as regards withdrawal. The Trial Chamber in its Majority Decision refers to Rule 44(D).29 There is no Rule 44(D) of the Rules, so that must be an error. What they meant to refer to must be Rule 45(D) quoted supra. 44. I have not lost sight of the fact that under Rule 45(E) of the Rules, Counsel may only be permitted to withdraw in “the most exceptional circumstances” whilst in Article 24(A)(i) of the Directive it is stated that the Principal Defender may “in exceptional circumstances” withdraw the assignment of Counsel at the latter’s request. I opine that as Rule 45(E) now stands, having regard to the fact that an assigned Counsel has the duty, obligation and responsibility to represent the accused and conduct his case to fĳinality and taking into account the rights of the accused as enshrined in Article 17 of the Statute, the Principal Defender may only withdraw assignment in the most exceptional circumstances. 45. From the foregoing it is beyond argument that the procedure laid down in Article 24(A)(i) of the Directive was not followed. There is no provision for a Trial Chamber to permit withdrawal of assigned counsel – that mandate is specifĳically given to the Principal Defender. In the International Criminal Tribunal for the former Yugoslavia (“ICTY”) since they did not have a Defence Offfĳice and a Principal Defender that mandate is specifĳically given to the Registrar. In the case of Prosecutor v. Delalic et al.30 the Appeals Chamber of that Tribunal stated:

“It is not ordinarily appropriate for a Chamber to consider motions on matters that are within the primary competence of the Registrar”

29 Majority Decision on the Application for Withdrawal, 20 May 2005, p. 8, para. 32. 30 Prosecutor v. Delalic et al., Order on Escad Land 30’s motion for Expedited Consideration 15 September 1999. interlocutory decisions – appeals chamber 1139

I accept and adopt that dictum, substituting “Principal Defender” for “Registrar,” This prohibition was expanded and reemphasized by the Appeals Chamber in Prosecutor v. Blagojevic (ICTY)31 when they held as follows: “The only inherent power that a Trial Chamber has is to ensure that the trial of an accused is fair; it cannot appropriate for itself a power which is conferred elsewhere. As such, the only option open to a Trial Chamber, where the Registrar has refused the assignment of new counsel and an accused appeals to it, is to stay the trial until the President has reviewed the decision of the Registrar. The Appeals Chamber considers that it is only by adopting this approach that the Trial Chamber properly respects the power specifĳically conferred upon the Registrar and the President by the Directive to determine whether an accused’s request for withdrawal of counsel should be granted in the interests of justice” (Emphasis mine). Here again, substituting “Principal Defender” for “Registrar,” I accept and adopt the dictum.

Trial Chamber should have stayed the Trial and referred Withdrawal Application to the Principal Defender 46. Applying the ICTY dictum to this appeal, I hold that the only option that was open to Trial Chamber II when Assigned Counsel Kevin Metzger and Wilbert Harris applied to them to withdraw was to stay the Trial and direct that the application be made to the Principal Defender in accordance with Article 24(A)(i) of the Directive. They should have further directed that if the Principal Defender refuses to grant the application to withdraw, then the applicants may seek review by the Presiding Judge of the Trial Chamber as provided in Article 24(E) of the Directive. In the event, Trial Chamber II failed to respect the power specifĳically conferred upon the Principal Defender and the Presiding Judge. Instead, Trial Chamber II purported to appropriate to itself power that is conferred elsewhere. In my judgement, therefore, Trial Chamber II’s Majority Decision permitting the withdrawal of Assigned Counsel Kevin Metzger and Wilbert Harris was ultra vires and wrong in law. I agree with Justice Sebutinde when she says:

“I perceive the Trial Chamber’s legitimate role…as being limited to adjudicating upon ancillary motions, requests and issues properly brought before the Trial Chamber, within the confĳines of the Rules. That is my understanding of the provisions of the Rules, and of the Directive on the Assignment of Counsel. I am of the considered opinion that any involvement of the Trial Chamber or myself in the manner suggested by the Registrar in his note would clearly be ultra vires my powers and certainly the legitimate powers of the Trial Chamber.”32

31 Prosecutor v. Blagojevic, Public and Redacted Reason for Decision on Appeal by Vidoje Blagojevic to Replace his Defence Team, 7 November 2003 Case No. IT-02-60-AR73. 32 Justice Sebutinde’s memo to Justice’s Doherty and Lussick, 19 May 2005, p. 2, para. 4(i). 1140 part iii

It must always be borne in mind in the words of Rule 26bis of the Rules: “The Trial Chamber and the Appeals 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 and due regard for the protection of victims and witness” (Emphasis mine).

The Functions and Powers of the Registrar and Principal Defender in the Compilation and Maintenance of the List of Highly Qualifĳied Criminal Defence Counsel The Principal Defender 47. Having found that Trial Chamber II was wrong in law in permitting the two assigned counsel to withdraw, I only feel called upon, in consequence, to adjudicate on the above-mentioned topic only. The Acting Registrar, Robert Kirkwood, in his Response which incidentally is imprecisely labelled “Reply” To Extremely Urgent and Confĳidential Motion for Re-Appointment of Kevin Metzger and Wilbert Harris as Lead Counsel for Alex Tamba Brima and Brima Bazzy Kamara, states: “The position of Principal Defender has no statutory authority…”33 That is not an accurate statement of the law. The position of Principal Defender has statutory authority. The Offfĳice of the Principal Defender has its nascency in Rule 45 of the Rules. Those Rules themselves have their genesis in Article 14 of the Statute. Rule 45 of the Rules provides for a Defence Offfĳice which shall be and is headed by the Special Court Principal Defender. The powers of the Principal Defender are to be found in the Directive, as I explained earlier.34 The Directive itself was promulgated by the Registrar himself in consultation with the President of the Special Court.35 It was the Registrar himself who armed the Principal Defender, and not himself, with the powers enumerated in the Directive. It is instructive to observe that in the ICTY and the International Criminal Tribunal for Rwanda (“ICTR”) the Registrar is given Article 24 powers of the Directive. In these Tribunals, the Registrar is clothed with the primary responsibility and duty of deciding matters relating to the qualifĳication, appointment and assignment of counsel. Signifĳicantly, there is no Defence Offfĳice in those two Tribunals and in referring to theBlagojevic dictum, supra, I had substituted ‘Principal Defender’ for ‘Registrar’ in relating the dictum in that case to the Special Court. The Registrar 48. In order to fully appreciate the Offfĳice of the Registrar and his functions in the Registry, it is best to go to source and refer to the relevant empowering

33 1st Respondent’s Response para. 5, pp. 2 and 3. 34 See paras. 35 and 42, supra. 35 See para. 35 and Article 24 of the Directive. interlocutory decisions – appeals chamber 1141 instruments. First, the Agreement between the United Nations and the Government of Sierra Leone on the Establishment of a Special Court for Sierra Leone (“the Agreement”). The Agreement provides in Article 4: “1. The Secretary-General, in consultation with the President of the Special Court, shall appoint a Registrar who shall be responsible for the servicing of the Chambers and the Offfĳice of the Prosecutor, and for the recruitment and administration of all support stafff. He or she shall also administer the fĳinancial and stafff resources of the Special Court.” In the Statute, however, the Registrar is not stated to be responsible for the servicing of the Offfĳice of the Prosecutor who, by Article 15(i), “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.” In Article 16 of the Statute, the other provisions of Article 4 of the Agreement are generally reflected in sub- rules (1), (2) and (3). 49. In my judgement, it is reasonable to conclude from the foregoing that the Defence Offfĳice, while offfĳicially part of the Registry must, in the interests of justice, act as an independent offfĳice. Although the Principal Defender and the Defence Offfĳice technically fall within the province of the Registry, the Principal Defender must act independently from other organs in the interest of justice. I am reinforced in this conclusion by the opinion of Assistant Secretary-General for Legal Afffairs, Mr. Ralph Zacklin in this letter to the erstwhile Registrar, Robin Vincent, dated 11 February 2005 in which he states decisively, pointedly and poignantly: “while the Defence Offfĳice technically falls within the Registry, they operate independently from other organs.” One can, therefore, see, appreciate and understand why it has been authoritatively stated that “It is the Registrar’s intention that the Offfĳice will, in future, become as fully independent as the Offfĳice of the Prosecutor.”36

Authority of Principal Defender 50. I opine, in conclusion and in all circumstances that the Principal Defender, as Head of the Defence Offfĳice, is vested with the mandate to discharge his duties and functions in guaranteeing the rights of accused persons independently and without any undue interference from the Registrar. The Principal Defender is in full legal possession of the authority and power to compile, maintain and place counsel on the List of Highly Qualifĳied Criminal Defence Counsel by virtue of Rule 45(C) of the Rules and Article 13(A), (B), (E) and (F) of the Directive.

36 See Special Court Annual Report 2002-2003, p. 16. 1142 part iii

Disposition

51. For all the reasons I have given, I fĳind that the Majority Decision of the Trial Chamber II in permitting the withdrawal of Assigned Counsel Kevin Metzger and Wilbert Harris was ultra vires and wrong in law. 52. This being said, I agree with the Majority Decision on the other aspects. Done at Freetown this day 8th day of November 2005. THE APPEALS CHAMBER

Before: Justice Raja Fernando, Presiding Justice George Gelaga King Justice Emmanuel Ayoola Justice Renate Winter Justice Geofffrey Robertson, QC Interim Registrar: Mr. Lovemore Munlo, SC Date: 26 May 2006 PROSECUTOR Against Alex Tamba Brima Brima Bazzy Kamara Santigie Borbor Kanu (Case No.SCSL-2004-16-AR73)

DECISION ON PROSECUTION APPEAL AGAINST DECISION ON ORAL APPLICATION FOR WITNESS TF1-150 TO TESTIFY WITHOUT BEING COMPELLED TO ANSWER QUESTIONS ON GROUNDS OF CONFIDENTIALITY

Office of the Prosecutor: Defence Counsel for Alex Tamba Brima: Luc Côté, Lesley Taylor, Glenna Thompson, Kojo Graham Nina Jørgensen, Melissa Pack

Amici Curiae: Defence Counsel for Brima Bazzy Kamara: Andrew K. Daniels, Mohammed Pa-Momo Fofanah Human Rights Watch, UN High Commissioner for Defence Counsel for Santigie Borbor Kanu: Human Rights, Geert-Jan Alexander Knoops, Carry Knoops, Amnesty International Abibola E. Manly-Spain 1144 part iii

THE APPEALS CHAMBER (“Appeals Chamber”) of the Special Court for Sierra Leone (“Special Court”) composed of Justice Raja Fernando, Presiding Judge, Justice Gelaga King, Justice Emmanuel Ayoola, Justice Renate Winter, and Justice Geofffrey Robertson, QC; BEING SEISED OF the “Prosecution Appeal Against Decision on Oral Application for Witness TF1-150 to Testify Without Being Compelled to Answer Questions on Grounds of Confĳidentiality” (the “Prosecution Appeal”), fĳiled by the Prosecution on 19 October 2005 pursuant to Rule 73(B) of the Rules of Procedure and Evidence of the Special Court (“Rules”); CONSIDERING the “Decision on the Prosecution’s Oral Application for Leave to be Granted to Witness TF1-150 to Testify without being Compelled to Answer any Questions in Cross-Examination that the Witness Declines to Answer on Grounds of Confĳidentiality Pursuant to Rule 70(B) and (D) of the Rules,” rendered by Trial Chamber II on 16 September 2005 (the “Impugned Decision”);1 NOTING (i) the Order of the President of 24 November 2005 assigning the matter to the full bench of the Appeals Chamber; (ii) the Order Appointing Human Rights Watch as Amicus Curiae fĳiled by the Appeals Chamber on 24 November 2005;( iii) the Order Appointing the United Nations High Commissioner for Human Rights as Amicus Curiae fĳiled by the Appeals Chamber on 28 November 2005; and( iv) the Order Appointing Amnesty International as Amicus Curiae fĳiled by the Appeals Chamber on 2 December 2005, and its Corrigendum of 5 December 2005; CONSIDERING ALSO: (i) The “Joint Defence Response to Prosecution Appeal Against Decision on Oral Application for Witness TF1-150 to Testify without Being Compelled to Answer Questions on Grounds of Confĳidentiality” fĳiled by the three Defendants on 27 October 2005 (the “Joint Defence Response to Prosecution Appeal”); (ii) The “Reply to Joint Defence Response to Prosecution Appeal Against Decision on Oral Application for Witness TF1-150 to Testify without Being Compelled to Answer Questions on Grounds of Confĳidentiality,” fĳiled by the Prosecution on 31 October 2005 (the “Prosecution Reply”);

1 Pursuant to the Appeals Chamber’s jurisprudence requiring separate and dissenting opinions to be fĳiled together with the related majority decision, the Dissenting Opinion of Justice Doherty fĳiled on 23 September 2006 ought to have been fĳiled on 16 September 2005. See Prosecutor v. Brima, Kamara, Kanu, Case No. SCSL-04-16-AR73, Decision on Brima-Kamara Defence Appeal Motion Against Trial Chamber II Majority Decision on Extremely Urgent Confĳidential Joint Motion for the Re-Appointment of Kevin Metzger and Wilbert Harris As Lead Counsel for Alex Tamba Brima and Brima Bazzy Kamara, 8 December 2005, paras. 20–24. interlocutory decisions – appeals chamber 1145

(iii) The “Amicus Curiae Submission Filed under Rule 74 of the Rules of Procedure and Evidence of the Special court for Sierra Leone on Behalf of Human Rights Watch,” (the “Human Rights Watch Brief”); the “Amicus Curiae Brief of the United Nations High Commissioner for Human Rights,” (the “UNHCHR Brief”); the “Amicus Curiae Brief of Amnesty International Concerning the Public Interest Information Privilege,” (the “Amnesty International Brief”) all, severally, fĳiled on 16 December 2005; (iv) The “Joint Defence Response to Amicus Curiae Briefs By Human Rights Watch, Amnesty International and the United Nations High Commissioner for Human rights,” fĳiled by the three Defendants on 17 January 2006 (the “Joint Defence Response to Amicus Briefs”);

NOW DETERMINES THIS APPEAL ON THE BASIS OF THE WRITTEN SUBMISSIONS:

I. Introduction

1. The Prosecution has appealed the Impugned Decision in which a majority of Trial Chamber II declined to issue an order guaranteeing that Witness TF1-150, a human rights offfĳicer with the United Nations, would not be compelled to answer any questions in cross-examination identifying his confĳidential sources. 2. Witness TF1-150 is a foreign national who served as a United Nations human rights offfĳicer in Sierra Leone from 1998 to 2001. By virtue of his employment, Witness TF1-150 enjoyed immunity from legal process. By letter dated 23 May 2005, the United Nations waived this immunity in order to enable TF1-150 to testify for the Prosecution in a number of cases before the Special Court. Given the sensitive and confĳidential nature of the witness’s testimony, this waiver was conditioned upon the witness testifying in closed session, a condition that was granted by the Trial Chamber.2 Prior to calling the witness to testify, the Prosecution requested the Trial Chamber to guarantee that Witness TF1-150 would not be compelled to answer any questions in cross-examination relating to the names of his confĳidential informants or sources. 3. In the Impugned Decision, the Trial Chamber found that Rule 703 did not apply to the witness or his testimony because the Prosecution failed to show, as a

2 Transcript of 13 September 2005, Oral decision, p. 24. 3 Rule 70: Matters not Subject to Disclosure (A) Notwithstanding the provisions of Rules 66 and 67, reports, memoranda, or other internal documents prepared by a party, its assistants or representatives in connection with the investigation or preparation of the case, are not subject to disclosure or notifĳication under the aforementioned provisions. 1146 part iii necessary precondition to the application of Rule 70, that it was in possession of the “initial information” and because the Witness was the recipient and not the originator of the information.4 Although the Trial Chamber recognized the special relationship between a human rights offfĳicer and his informants, as well as the public interest that attaches to the work of human rights offfĳicers gathering information in the fĳield, the Trial Chamber found that these factors did not outweigh the rights of the accused persons to a fair trial as guaranteed by Article 17 of the Statute of the Special Court.5 The Trial Chamber also considered that the protective measure of hearing the witness in closed session pursuant to Rule 79 of the Rules was sufffĳicient to maintain the confĳidentiality of the witness’s testimony.6 4. The Prosecution appealed from the impugned decision on three grounds, namely, that: 1. The majority erred in law in the interpretation and construction of Rule 70(B) and Rule 70(D) of the Rules;7 2. The majority erred in law in distinguishing and fĳinding inapplicable the Public Version of the Confĳidential Decision on the Interpretation and Application of Rule 70 in the Milošević case;8 and 3. The balancing exercise to be carried out by the Chamber was incorrectly formulated and that the majority erred in law in balancing the public interest attaching to the work of human rights offfĳicers with the rights of the accused to a fair trial.9

(B) If the Prosecutor is in possession of information which has been provided to him on a confĳi- dential basis and which has been used solely for the purpose of generating new evidence, that initial information and its origin shall not be disclosed by the Prosecutor without the consent of the person or entity providing the initial information and shall in any event not be given in evidence without prior disclosure to the accused. (C) If, after obtaining the consent of the person or entity providing information under this Rule, the Prosecutor elects to present as evidence any testimony, document or other material so provided, the Trial Chamber may not order either party to produce additional evidence received from the person or entity providing the initial information, nor may the Trial Chamber for the purpose of obtaining such additional evidence itself summon that person or a representative of that entity as a witness or order their attendance. The consent shall be in writing. (D) If the Prosecutor calls as a witness the person providing or a representative of the entity providing information under this Rule, the Trial Chamber may not compel the witness to answer any question the witness declines to answer on grounds of confĳidentiality. (E) The right of the accused to challenge the evidence presented by the Prosecution shall remain unafffected subject only to limitations contained in Sub-Rules (C) and (D). (F) Nothing in Sub-Rule (C) or (D) above shall afffect a Trial Chamber’s power to exclude evidence under Rule 95. 4 Impugned Decision, para. 19. 5 Impugned Decision, para. 20. 6 Impugned Decision, para. 20. 7 Prosecution Appeal, para. 8. 8 Prosecution Appeal, para. 9, citing Prosecutor v. Milošević, Case No. IT-02-54-AR108bis&AR73.3, Public Version of the Confĳidential Decision on the Interpretation and Application of Rule 70, 23 October 2002 (the “Milošević Decision”). See also Prosecution Reply, paras. 2–5. 9 Prosecution Appeal, para. 10. interlocutory decisions – appeals chamber 1147

5. The two main issues that arise from these three grounds of appeal are: whether Rule 70(B) and Rule 70(D) are applicable to the Prosecution’s request; and, whether the majority decision was correct in balancing the public interest attaching to the work of human rights offfĳicers with the rights of the accused persons to a fair trial.

II. Submissions of the Parties and the Amici Curiae

A. Are Rule 70(B) and Rule 70(D) applicable to the Prosecution’s request? 6. The Prosecution submitted that the Trial Chamber erred in holding that Rule 70 was not applicable to Witness TF1-150 or his testimony on the ground that the witness’s sources were not “information which has been provided” to the Prosecution within the meaning of Rule 70(B).10 The Prosecution relied on a decision of the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY), which held that “[t]he fact that information is provided in the form of testimony does not exclude it from being ‘information’ or ‘initial information’ provided under the Rule”11 to argue that the provision of information in the form of witness testimony on a confĳidential basis constitutes “information … provided… on a confĳidential basis” within the meaning of Rule 70(B) triggering the application of Rule 70 in its entirety.12 7. The Prosecution also drew a distinction between Rule 70(D) and Rule 70(B), submitting that Rule 70(D) deals with a situation in which information is being presented in evidence. Rule 70(B) deals with the basis upon which information is provided to the Prosecution, as opposed to its form or content when it comes to be presented in court.13 The Prosecution argued that “[t]he fact that a witness may give evidence as to information provided to him by third parties on a confĳidential basis does not mean that the witness may not remain protected by the provision of Rule 70 insofar as his testimony was provided to the Prosecution, in the fĳirst instance on a confĳidential basis within the meaning of Rule 70(B).”14 The Prosecution also noted a distinction between witness immunity and testimonial privilege.15 8. According to the Defence, the Prosecution’s request that the witness be allowed to withhold information which is not even in the possession of the

10 Prosecution Appeal, para. 14. 11 Prosecutor v. Milošević, Case No. IT-02-54-AR108bis&AR73.3, Public Version of the Confĳidential Decision on the Interpretation and Application of Rule 70, 23 October 2002. 12 Prosecution Appeal, paras. 15–20. 13 Prosecution Appeal, paras. 21–23. See also Prosecution Reply, para. 6. 14 Prosecution Appeal, para. 21. 15 Prosecution Appeal, para. 22. 1148 part iii

Prosecution is beyond the scope of Rule 70(B).16 The Defence submitted that the Trial Chamber was correct in determining that the witness, who is only a recipient of hearsay information, cannot rely on Rule 70.17 The Defence emphasised that the right of the accused to a fair trial enshrined in Article 17(4)(e) of the Statute includes the right “[t]o examine or have examined, the witness against him or her.”18 The Defence opposed the proposed limitation on cross-examination, explaining that without cross-examination on the sources of the information the evidentiary value of the evidence could not be assessed.19 9. The United Nations High Commissioner for Human Rights (“UN High Commissioner”) urged the Appeals Chamber to adopt an interpretation consistent with the interpretation given to Rule 70 of the ICTY Rules of Procedure and Evidence by the Appeals Chambers of the ICTY.20 The UN High Commissioner argued that the Trial Chamber was unduly restrictive in limiting the application of Rule 70(B) to cases where the “provider” of the initial information for purposes of Rule 70(B) is also the source of that information.21 While the Trial Chamber has the authority to assess whether information was provided by the witness in accordance with Rule 70(B), its enquiry is limited to an examination of whether the information was, in fact, provided on confĳidential basis.22 10. Human Rights Watch submitted that Rule 70 should be permissively construed to ensure that a human rights offfĳicer acting as a witness would not be compelled to answer a question on grounds of confĳidentiality or privilege in circumstances such as those in the instant case.23

B. Was the majority decision correct in balancing the public interest attaching to the work of human rights offfĳicers with the rights of the accused persons to a fair trial? 11. The Prosecution submitted that Trial Chamber II erred in balancing the public interest attaching to the work of Human Rights offfĳicers, including the privileged relationship between those offfĳicers and their informants, against the rights of the accused protected under Article 17 of the Statute.24 According to the Prosecution, the correct balancing exercise should have been between the public

16 Joint Defence Response to Prosecution Appeal, paras. 9–16. See also Joint Defence Response to Amicus Briefs, paras. 1–26. 17 Joint Defence Response to Prosecution Appeal, paras. 17–31. 18 Joint Defence Response to Prosecution Appeal, paras. 32–37. 19 Joint Defence Response to Prosecution Appeal, paras. 38–43. 20 UNHCHR Brief, paras. 15–20. 21 UNHCHR Brief, paras. 17–19. 22 UNHCHR Brief, para. 20. 23 Human Rights Watch Brief, paras. 19–26. 24 Prosecution Appeal, paras. 24–26, 28–54. See also Prosecution Reply, paras. 7–24. interlocutory decisions – appeals chamber 1149 interest attaching to the work of human hights offfĳicers and the public interest in having all the relevant information before the Chamber.25 Applying this test, the Prosecution argued that the balance falls in favour of permitting a human rights offfĳicer to refuse to disclose the identities of his sources.26 The Prosecution submitted that the Rules recognize that non-revelation of some information to the Chamber does not breach the fair trial rights of the accused per se.27 Moreover, non disclosure of the identities of sources would not prejudice the rights of the accused because the Defence could call other evidence to challenge any information provided by the witness and because the Trial Chamber could determine how much weight, if any, to place on the particular portion of the evidence which was given without a named source.28 12. The Defence submitted that the rights of the accused should be taken into account and that the issue in this case cannot be equated with other situations involving testimonial immunity or with the special protections accorded to employees of the International Committee of the Red Cross.29 The Defence argued that the witness cannot seek to rely on the immunities and privileges which have already been waived by the United Nations and that the issue is not one involving freedom of speech.30 According to the Defence, the protective measure of hearing the witness in closed session is sufffĳicient to safeguard the witness’s informants and the role of the human rights offfĳicer.31 13. The UN High Commissioner explained that confĳidentiality is an essential element of the working methods of UN human rights offfĳicers, and that their work is of fundamental importance to the restoration and maintenance of international peace and security, the rule of law, and the administration of justice.32 Thus, she argued in favour of a privilege protecting the identities of the confĳidential sources of a UN human rights offfĳicer which is not subject to any balancing of compelling interests, but is subject to a specifĳic exception where exculpatory evidence is involved.33 In her view, any prejudice to the rights of an accused person could be addressed by reducing the weight to be accorded to the testimony for which the sources are being withheld.34 The UN High Commissioner submitted that this

25 Prosecution Appeal, para. 26. 26 Prosecution Appeal, paras. 26–27. 27 Prosecution Appeal, para. 26. 28 Prosecution Appeal, para. 55. 29 Joint Defence Response to Prosecution Appeal, paras. 44–76, 85–93. See also Joint Defence Response to Amicus Briefs, paras. 27–45. 30 Joint Defence Response to Prosecution Appeal, paras. 72–76. See also Joint Defence Response to Amicus Briefs, paras. 48, 52–54. 31 Joint Defence Response to Prosecution Appeal,, paras. 78–84. See also Joint Defence Response to Amicus Briefs, paras. 55–65. 32 UNHCHR Brief, paras. 32–34. 33 UNHCHR Brief, paras. 21–46. 34 UNHCHR Brief, paras. 47–63. 1150 part iii privilege cannot be waived by the Secretary-General, the High Commissioner, or the human rights offfĳicer and that the UN waiver letter did not purport to waive the privilege protecting the confĳidential sources of a UN human rights offfĳicer.35 14. Amnesty International addressed the public interest in protecting confĳiden- tial communications concerning human rights violations. According to Amnesty International the public interest information privilege is grounded in the human right to freedom of opinion and expression and, thus, can only be waived by the source and not the human rights offfĳicer.36 15. Human Rights Watch submitted that there is a generally consistent jurisprudence protecting a category of witnesses, including human rights offfĳicers, from revealing their sources.37 Human Rights Watch explained that the accused person would not be prejudiced by expert evidence containing hearsay on factual matters because a court could give appropriate weight to such evidence.38

III. Deliberations

16. The Appeals Chamber gratefully acknowledges the extensive and helpful submissions in the briefs.39 However, this appeal will focus on the two grounds which properly arise from the Impugned Decision, namely: fĳirst, the question of the applicability of Rules 70(B) and 70(D) to the Prosecution’s request; and, second, the balancing of the public interest in protecting confĳidentiality in the work of human rights offfĳicers and the public interest in the fair trial of an accused.

A. Are Rule 70(B) and Rule 70(D) applicable to the Prosecution’s request? 17. Rule 70 is principally an exception to the disclosure scheme contained in Rules 66 to 69. Rule 70(A) exempts internal documents prepared by a party from these disclosure rules. Rule 70(B) exempts from disclosure “information which has been provided to the Prosecutor on a confĳidential basis and which has been used solely for the purpose of generating new evidence” unless the Prosecutor fĳirst gains the provider’s consent. Rules 70(C) and 70(D) recognise the competence of

35 UNHCHR Brief, paras. 64–70. 36 Amnesty International Brief. 37 Human Rights Watch Brief, paras. 27–57. 38 Human Rights Watch Brief, paras. 58–63. 39 As a preliminary matter, the Appeals Chamber notes the Defence objection to the Prosecution’s failure to fĳile copies of jurisprudential authorities referred to in the Prosecution Appeal. The exception created by Article 7(D)(i) of the Practice Direction on Filing Documents before the Special Court, which exempts a party from fĳiling a document when it is “readily available on the internet,” does not include paid or subscription websites. In order to ensure that the parties and the court have access to all necessary authorities, copies of authorities accessed on such websites must be fĳiled pursuant to Article 7(B) of the Practice Direction on Filing Documents before the Special Court. interlocutory decisions – appeals chamber 1151 the person or entity providing information under Rule 70 to give evidence but continue to ensure that such person shall not be compelled or required to reveal more than he or she had consented to. Rule 70(E) preserves the right of the accused to challenge the evidence presented by the Prosecution but recognises the limitation to that right in Rules 70(C) and 70(D). 18. With regard to the applicability of Rule 70, the Prosecution’s appeal raises two issues: fĳirst, did the Trial Chamber err in fĳinding that Rule 70 does not apply because the Prosecution failed to prove that it was in possession of the initial information?; and, second, did the Trial Chamber err in fĳinding that Rule 70(D) did not apply because Witness TF1-150 is not the “originator of the initial information” or “the person or representative of the entity providing the initial information”?

1. Did the Trial Chamber err in fĳinding that Rule 70 does not apply because the Prosecution failed to prove that it was in possession of the initial information? 19. It is the possession of the “initial information” which has been provided to the Prosecutor on a confĳidential basis and which has been used solely for the purpose of generating new evidence that triggers the protection from disclosure of both the information and its origin in Rule 70(B). However, the ICTY Appeals Chamber has explained that, for the purposes of Rules 70(C) and 70(D), the term “initial information” is not limited to evidence used solely for generating new evidence, since these parts of Rule 70 regulate the use of the previously confĳidential material in court with the consent of the provider: By defĳinition, the information is by this stage no longer being ‘used solely for the purpose of generating new evidence.’ It becomes a matter of necessary textual interpretation, therefore, that the information referred to in paragraphs (C) and (D) must be that which was provided to the Prosecutor on confĳidential basis (the fĳirst option), and not that which was so provided and which has been used solely for the purpose of generating new evidence (the second option). In the opinion of the Appeals Chamber, the Trial Chamber erred in adopting the second option rather than the fĳirst. 20. The Appeals Chamber agrees with the opinion of the ICTY Appeals Chamber in the Milošević Decision40 and fĳinds that “information” referred to in Paragraphs (C) and (D) is information which was provided to the Prosecutor on a confĳidential basis, without the characteristic that it “has been used solely for the purpose of generating new evidence.” The guiding characteristic of the information provided under Rule 70 is that it was provided on confĳidential basis. That makes the consent of the person who provided the information on confĳidential basis a

40 Prosecutor v. Milošević, Case No. IT-02-54-AR108bis&AR73.3, Public Version of the Confĳidential Decision on the Interpretation and Application of Rule 70, 23 October 2002. 1152 part iii pre-condition to disclosure in paragraph (B); makes additional evidence received from that person protected in paragraph (C); and, makes that person, if called as a witness, not compellable to answer any question that he may decline to answer on the basis of confĳidentiality in paragraph (D). 21. It is not profĳitable to ask whether the term “information” includes the source of the information for the purposes of Rule 70. It is manifest that Rule 70(B) only requires that the Prosecution be in possession of the “initial information.” Both the initial information and its source are protected by Rule 70(B) from disclosure without the prescribed written consent. Even if the Prosecutor was in possession of the source information, he could not be required to disclose it without the provider’s consent. 22. The Appeals Chamber, therefore, fĳinds that the Trial Chamber majority erred in holding that Rule 70 applies only where the Prosecutor is in possession of information which has been provided to him on a confĳidential basis and which has been used solely for the purpose of generating new evidence, without noting that the condition that the information “has been used solely for the purpose of generating new evidence” does not apply to sub-Rules 70(C) and 70(D). This defĳi- ciency afffected the Trial Chamber’s conclusion that the Prosecution had failed to show that it was “in possession of that initial information.” 23. The Appeals Chamber, moreover, observes that a Trial Chamber should be conscious of the difffĳiculties in assessing the scope of information provided to the Prosecution on a confĳidential basis. An assertion by the Prosecution that information has been provided on a confĳidential basis would normally satisfy the Trial Chamber. Notwithstanding these practical limitations, the Appeals Chamber shares the view of the ICTY Appeals Chamber that the jurisdiction of the Trial Chamber to probe the assertion is undoubted: Chambers of the Tribunal do indeed have the authority to assess whether information has been provided in accordance with Rule 70(B) and so benefĳits from the protection affforded by that Rule. However, such enquiry must be of a very limited nature: it only extends to an examination of whether the information was in fact provided on a confĳidential basis, bearing in mind that the providing of information may not be confĳined to a single act, but may consist of a process involving several acts. This is an objective test. The Chambers may be satisfĳied of this simply by a consideration of the information itself, or by the mere assertion of the Prosecutor, or they may require confĳirmation from the information provider or, where the information is in the form of a document, for example, there may be something on the face of the document which indicates that it was indeed provided on a confĳidential basis.41

41 Prosecutor v. Milošević, Case No. IT-02-54-AR108bis&AR73.3, Public Version of the Confĳidential Decision on the Interpretation and Application of Rule 70, 23 October 2002, para. 29. interlocutory decisions – appeals chamber 1153

24. In the instant case, the Defence was concerned with witness’s confĳidential sources, since the evidence of the witness himself was already disclosed to the Defence. The Defence did not argue and the Trial Chamber did not fĳind that the information concerning the witnesses sources could not have been provided on a confĳidential basis. In the view of the Appeals Chamber, the Prosecution’s statement that the information had been confĳidentially provided and the UN letter referring to the “the sensitive and confĳidential” nature of the witness’s information were sufffĳicient to demonstrate that the Prosecutor was in possession of initial information provided on confĳidential basis rather than to the contrary. 25. The Appeals Chamber, therefore, concludes that the Trial Chamber erred in fĳinding that Rule 70 did not apply because the Prosecution failed to show that it was in possession of the initial information. 26. The Appeals Chamber notes that although the Milošević Decision was cited to the Trial Chamber, the majority considered that it was “distinguishable and therefore not pertinent to the case.”42 The Appeals Chamber considers that this authoritative and historical exposition of the purpose of Rule 70 of the ICTY Rules, on which the Rules of the Special Court are based, should not have been dismissed as “not pertinent” to a case in which the main issue was Rule 70’s applicability.

2. Did the Trial Chamber err in fĳinding that Rule 70(D) did not apply because Witness TF1-150 is not the “originator of the initial information” or “the person or representative of the entity providing the initial information”? 27. The Trial Chamber found that the Prosecution could not rely on the protection offfered by Rule 70(D) because the witness was neither the “originator of the initial information nor the person or representative of the entity providing the initial information but merely a recipient thereof.” The Trial Chamber reasoned that “Rule 70(D) applied where ‘the person or representative of the entity providing the initial information’ (i.e. the informant himself) has been called upon to testify.” The Trial Chamber categorized the “originator” of the information as “the informant himself” and the witness as “a recipient.” 28. The Appeals Chamber fĳinds that this reasoning is flawed in several respects. First, the term “initial information” in Rules 70(B) and 70(C) does not necessarily include all information from which the information provided to the Prosecutor was derived. As explained above, the reference to “initial information” in Rules 70(C) and 70(D) means information provided on confĳidential basis. 29. Second, in Rules 70(B) and 70(C), the Prosecutor is the recipient of the information and the person or representative of the entity who provided the

42 Impugned Decision, para. 19. 1154 part iii information to him is the “provider.” The actual origin, in the sense of an ultimate originating source, of the information provided to the Prosecutor may not be known or may not be discernable because the information may not have been given to the provider by any single person. More often than not the origin of information gleaned by a provider may be a collection of persons, such as a community piecing knowledge together – a little here a little there – to build up information or an entity collecting facts from diffferent sources to build up information provided to the Prosecutor on confĳidential basis. 30. The category of “originator of the initial information,” coined by the Trial Chamber, is alien to Rule 70(D). Rule 70(D) grants the person providing or the representative of the entity providing the initial information (“the provider”) protection from compellability in regard to answering questions. Rule 70(D) does not require that the witness is the “originator of the initial information.” Indeed, one of the purposes of Rule 70(D) is to leave to the provider of the initial information the discretion to reveal or not to reveal the source or sources of information provided to the Prosecutor on a confĳidential basis. The Rules thus enable the witness to remain faithful to the pact of confĳidentiality, thus preserving the conditions under which the information provided to the Prosecutor may have been obtained. 31. The Trial Chamber erred in concluding that Rule 70(D) could not apply because Witness TF1-150 is not the “originator of the initial information” or “the person or representative of the entity providing the initial information.” The Appeal Chamber, thus, fĳinds that the Trial Chamber erred in fĳinding that the provisions of Rule 70 upon which the Prosecution sought to rely were not applicable to the witness or his testimony.

B. Was the majority decision correct in balancing the public interest attaching to the work of human rights offfĳicers with the rights of the accused persons to a fair trial? 32. Having found that Rule 70 did not apply to Witness TF1-150, the Trial Chamber proceeded to reject the Prosecution’s request on a second basis. While recognizing the privileged relationship between a human rights offfĳicer and his informants, as well as the public interest that attached to the work of human rights offfĳicers gathering confĳidential information in the fĳield, the Trial Chamber found that that these considerations should not outweigh the rights of the accused to a fair trial as guaranteed by Article 17 of the Statute of the Special Court. The Prosecution has appealed this fĳinding. 33. Since the Trial Chamber has acknowledged the privileged relationship and the public interest arising out of the work of human rights offfĳicers, the Appeals Chamber will not delve into these issues in any further detail. However, the Appeals Chamber considers that the special interests of human rights offfĳicers interlocutory decisions – appeals chamber 1155 who have provided confĳidential information to the Prosecutor are adequately covered by Rule 70, which can be interpreted as protecting confĳidential information from disclosure and protecting the provider from certain aspects of compellability. To this extent, a limited testimonial privilege has already been recognized in the Rules. Moreover, insofar as Rule 70 is not focused on the status, offfĳice, or profession of the informant, it offfers a more general protection. Read purposively, the provisions of Rule 70 can achieve the same purpose as is served by erecting a shield of privilege to protect some categories of persons from compulsion to divulge details and sources of confĳidential communication or information where appropriate. The purposes served by Rules 70(C) and 70(D) will not be served merely by resort to a closed session. The Rule 70 information provider must be empowered to guarantee anonymity to a confĳidential source. This guarantee of non-disclosure of identity cannot depend on the chance that a future Trial Chamber might order a closed session hearing or other protective measures. 34. However, the probative value of the witness’s remaining evidence may be afffected by the invocation of Rule 70 protection. Thus, the fairness of the trial can be ensured by the Trial Chamber’s overriding obligation to assess the evidence in its totality and the following safeguards set out in the ICTY Appeals Chamber’s decision: The Appeals Chamber observes that two safeguards exist to ensure that any misuse does not deprive accused of their rights to challenge the evidence against them and to receive a fair trial. First […] the Trial Chambers do possess a limited authority to police the application of Rule 70 in order to prevent its misapplication. Second, paragraph (G) of Rule 70 expressly empowers the Trial Chambers to ‘exclude evidence if its probative value is substantially outweighed by the need to ensure a fair trial.’ Designed to ensure that the restrictions in paragraphs (C) and (D) do not undermine the bedrock requirement of fair trial when the Rule is properly invoked, paragraph (G) also gives Trial Chambers a tool to protect that requirement if the Rule has been misused.43 35. The Appeal Chamber notes that there is no Rule 70(G) in the Rules of the Special Court. However, there is Rule 95 which is specifĳically referred to in Rule 70(F) and which provides that “No evidence shall be admitted if its admission would bring the administration of justice into serious disrepute.” This provision is wide enough to cover such cases as would be covered by Rule 70(G) of the ICTY Rules. 36. For these reasons, the Appeals Chamber is satisfĳied that Rule 70 applies to Witness TF1-150 or his testimony and that the request of the Prosecution should have been granted.

43 Prosecutor v. Milošević, Case No. IT-02-54-AR108bis&AR73.3, Public Version of the Confĳidential Decision on the Interpretation and Application of Rule 70, 23 October 2002, para. 26. 1156 part iii

IV. Disposition

FOR ALL THE ABOVE REASONS THE APPEALS CHAMBER, ALLOWS the Prosecutor’s appeal, QUASHES the Impugned Decision, AND GRANTS the Prosecution’s oral application for leave to be granted to witness TF1-150 to testify without being compelled to answer questions in cross- examination that the witness declines to answer on grounds of confĳidentiality pursuant to Rule 70(B) and (D) of the Rules. Hon. Justice Robertson is appending his Separate and Concurring Opinion to the present Decision. Done at Freetown this day 26th of May 2006. interlocutory decisions – appeals chamber 1157

SEPARATE AND CONCURRING OPINION OF HON. JUSTICE GEOFFREY ROBERTSON, QC

Introduction 1. This appeal raises important issues regarding the testamentary privileges of witnesses who have worked in and reported from conflict zones on behalf of international organisations. Although judicial consideration has been given to the general compellability as witnesses of Red Cross employees44 and war correspondents,45 there has been no international court decision relating to a class of witness described compendiously as “human rights monitors,” willing to step into the witness box but reluctant when called upon to identify those persons who, at some risk to themselves, have vouchsafed to them some of the information they relate in their evidence to the court. 2. There is a presumptive privilege recognised in international law for journalists to protect their sources: see the European Court of Human Rights judgement in Goodwin v. UK.46 That privilege is implicit in the freedom of expression guarantee (Article 10 European Convention Human Rights; Article 19 International Covenant on Civil and Political Rights) because if newsworthy information cannot be divulged to journalists in confĳidence, then much will not be divulged at all: the media’s role as watchdog for the public interest would be circumscribed. Although treated as a “privilege” available to the journalist witness, it is really a reflection of the public interest in protecting the sources’ right of free speech in circumstances when identifĳication would result in reprisals for exercising it. To what extent can this reasoning be applied to a “human rights monitor,” in this case an offfĳicial employed by the UN to report on human rights abuses in Sierra Leone to the Secretary General to inform his reports to the Security Council? To what extent may it apply to “human rights monitors” in the garb of researchers and investigators employed by NGOs, such as Amnesty International and Human Rights Watch, to provide material for their published reports? And if such “monitors” –I would prefer to call them, generically, “human rights reporters” – come to testify for the prosecution in a criminal trial, can the court protect them from a cross-examination exposing their human sources whilst at the same time upholding the rights of the defence, notably the basic right to test the reliability of prosecution evidence? 3. On these difffĳicult questions, the answers to which are still evolving in international courts, we have had the benefĳit of extensive and well-argued submissions

44 Prosecutor v. Simić et al., Case No. IT-95-9, [Public Version] Ex Parte Confĳidential Decision on the Prosecution Motion under Rule 73 for a Ruling Concerning the Testimony of a Witness, 27 July 1999. 45 Prosecutor v. Brđanin and Talić, Case No. IT-99-36-AR73.9, Decision on Interlocutory Appeal, 11 December 2002. 46 Goodwin v. United Kingdom, [1996] ECHR 16. 1158 part iii by the Prosecution and Defence teams and we are additionally grateful to the UNHCHR, Amnesty International and Human Rights Watch for their detailed amici submissions. The issue in this case has been decided by the full court, whose judgement I join, by a purposive interpretation of Rule 70 which permits this particular witness to testify without fear of being compelled to disclose the names of individuals who have placed their trust in him. But this case requires, in my view, an eventual appreciation and analysis of the wider issue of testamentary privilege, which provides an alternative and in some ways more satisfactory means of resolving not only this case but others that may follow, where the witness has not supplied information to the Prosecutor under Rule 70(B) by the Defence. The Open Justice Principle 4. This appeal arises from an application made by the Prosecution in the AFRC trial on 13 September 2005 in relation to protected Witness TF1-150, described in open court as “a stafff member of the United Nations who was a human rights monitor in Sierra Leone.” It tendered a letter from the UN which waived his and that organisation’s immunity rights so that he might “testify freely,” on condition that he be permitted to do so in closed court. The Prosecution’s fĳirst application was to close the court, and then to obtain an advance ruling from the Trial Chamber that when giving his evidence, the witness should not be compelled under cross-examination to name any human source from which he had received information and upon which he had drawn for his evidence. There was good reason for the Prosecutor’s caution. A few months previously there had been a testimony from a human rights reporter in closed session in the CDF trial before another Trial Chamber, which had, by a majority, ruled that he could be compelled to identify his sources. 5. That CDF order should have been appealed, but the delay had been caused by the failure of the dissenting judge to append his judgment to that of the court – a practice to which the appeals chamber has now put a stop.47 What does concern me is that this important decision in the CDF case had been rendered in closed court and had not been made public, so Defence Counsel in this case were not allowed to see a copy and even in this appeal the “confĳidential” judgement in the CDF case was not supplied to our amici. If it is really necessary (and I stress necessary – not just convenient or desirable) to sit in closed session, any decision made in that session must nonetheless be speedily made public – if it is necessary (in the sense I have already emphasized) to remove names or identifying details, then that can be done by a simple process of redaction. If justice requires that

47 Doc. No. SCSL-04-16-AR73-441: Prosecutor v. Brima, Kamara, Kanu, Case No. SCSL-04-16-AR73, Decision on Brima-Kamara Defence Appeal Motion Against Trial Chamber II Majority Decision on Extremely Urgent Confĳidential Joint Motion for the Re-Appointment of Kevin Metzger and Wilbert Harris As Lead Counsel for Alex Tamba Brima and Brima Bazzy Kamara, 8 December 2005, paras. 19–26. interlocutory decisions – appeals chamber 1159 paragraphs or parts of the judgement remain confĳidential to the parties, then they can be edited out of the version placed on public fĳile. It is the duty of every Chamber to ensure that its decisions become public as soon as practicable: it is incumbent upon judges under Rule 4(B) of the Practice Directions on Document Filing to ensure that a version of the judgement, however redacted or heavily edited to remove confĳidential material, is placed on the public fĳile. 6. Any application to go into closed session must be closely scrutinised by the court. I am far from convinced that the condition imposed by the UN on the waiver of its immunity in this case was justifĳied and I do not necessarily accept (we have heard no argument on this point) that its immunities under Articles V and VII of the 1946 Convention on the Privileges and Immunities of the UN apply to testimony by offfĳicials in international courts set up by the UN itself. The UN and other organisations volunteering employees as witnesses should appreciate the importance of the open justice principle. It is enshrined in all human rights instruments. Its contribution to forensic fairness is explained by Wigmore: Its operation in tending to improve the quality of testimony is twofold. Objectively, it produces in the witness’s mind a disinclination to falsify: fĳirst, by stimulating the instinctive responsibility to public opinion, symbolised in the audience, and ready to scorn a demonstrated liar; and next, by inducing the fear of exposure of subsequent falsities through the disclosure by informed persons who may chance to be present or to hear of the testimony from others present. Objectively, it secures the presence of those who by possibility may be able to furnish testimony in chief or to contradict falsifĳiers and yet may not have been known beforehand to the parties to possess any information.48 7. Justice Bertha Wilson in the Supreme Court of Canada has accurately summarised the modern reasons for the open justice principle: …the public interest in open trials and in the ability of the press to provide complete reports of what takes place in the courtroom is rooted in the need (1) to maintain an efffective evidentiary process; (2) to ensure a judiciary and juries that behave fairly and that are sensitive to the values espoused by the society; (3) to promote a shared sense that our courts operate with integrity and dispense justice; and (4) to provide an ongoing opportunity for the community to learn how the justice system operates and how the law being applied daily in the courts afffects them.49 8. These reasons carry force in international criminal courts. It must be recognised, however, that the principle is limited by what is necessary in the interests of justice itself: closed sessions are acceptable where justice cannot be done at all if the hearing proceeds in public. This may be more common in war crimes courts sitting in former war zones, where the need to protect witnesses from reprisals is for obvious reasons much greater than in the domestic courts of countries at

48 Wigmore on Evidence, para. 1834. 49 Edmonton Journal v. AG for Alberta, [1989] 2 S.C.R. 1326, 1361 (Supreme Court of Canada). See also Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980) (United States Supreme Court). 1160 part iii peace. But before approving applications from one or even both parties to ano- nymise witnesses and close courtrooms, judges must fĳirst consider the sufffĳiciency of their powers to protect witnesses and security information by taking lesser measures. For example, they have power to close their court for short periods so that a particularly sensitive question can be discussed in private, instead of shut- ting the doors on the entire testimony of a particular witness. They have power to direct, even retrospectively, that certain sensitive evidence, if inadvertently given in open court, should not be reported. They have, as will be seen, power to protect witnesses from being required to divulge sensitive information, including their sources. They have many other powers to protect witnesses and victims. It may be that the UN would not have insisted upon a closed hearing as a condition of waiv- ing immunity had it been aware of these safeguards, or had they been specifĳically raised with the court beforehand. 9. The evidence of the UN witness had long before been disclosed to the Defence. It consisted both of his direct observations of the war and of what others had told him of the “widespread and systematic” commission of certain war crimes in some areas. This was relevant but secondary evidence: it was directed to establish an element of the crime charged (namely the widespread and systematic nature of the attacks) but did not directly connect any defendant with an offfence. Much of it was already a matter of public record and could have been given in open court without any danger to the UN or to the witness and his sources, so long as the court protected him from having to name them.

The Trial Chamber Decision 10. Trial Chamber II initially granted the Prosecution’s application to close the court but soon realised that it was inappropriate to hear the legal argument in closed session. Its decision was delivered in open court, without identifying the UN employee by name. The majority (Judges Lussick and Sebutinde) decided, as had the majority in Trial Chamber I in the CDF case, that Rule 70 was inapplicable. They then went on to state as their ratio: …whereas the Trial Chamber recognises the privileged relationship between a Human Rights offfĳicer and his informants as well as the public interest that attaches to the work of Human Rights offfĳicers gathering confĳidential information in the fĳield, we do not think that the privilege and/or public interest should outweigh the rights of the accused persons to a fair trial as guaranteed by Article 17 of the Statute. In any event, we are of the view that the protective measures pertaining to a closed session under Rule 79 are more than sufffĳicient to maintain the confĳidentiality of any information that witness TFI-150 may divulge in the course of his testimony, without the need for additional measures whose efffect is to curtail the statutory rights of the accused.50

50 Impugned Decision, para. 20. interlocutory decisions – appeals chamber 1161

In other words, the majority recognised a public interest in protecting the identity of sources of information given to human rights monitors, but felt they would be sufffĳiciently protected if they were named in closed session, after full-blooded cross-examination. 11. Hon. Justice Doherty dissented, principally on the ground that human rights monitors had a qualifĳied privilege to protect the identity of sources to whom they had promised anonymity, just like the war correspondents whose position in this respect had been considered by the ICTY Appeals Chamber in the Brđanin case,51 upon which she drew extensively for her conclusion that the balance of public interest favoured source protection, even in closed courtrooms. She described the public interest thus: This witness has served under the mandate of UNOMSIL and UNAMSIL. The mandate of UNOMSIL established by the Security Council Resolution 1181 (1998) of 13 July 1998 was, inter alia to “[…] report on violations of international humanitarian law and human rights in Sierra Leone […]” This mandate was carried over to UNAMSIL which was established by the Security Council in 1999 under Chapter VII of the United Nations Charter. …The human rights offfĳicer’s duty is to report in unstable and occasionally dangerous environments and such reports are part of the information that the Security Council depends upon to assess and decide on action in maintaining peace and security and upholding the rule of law. It is on such information that international organisations and governments take political actions. …[they] rely heavily on such reports and there is a public interest in the work and the information of Human Rights Offfĳicers as there is in media reports. …the witness has assured his sources that he will protect their identity and on that basis they gave the information. It is the trust in the Human Rights Offfĳicer and his/her integrity that the Prosecutor seeks to enforce and protect, …ensuring that Human Rights Offfĳicer (sic) can collect information […] given free from fear of reprisal.52

Rule 70 12. I can well understand the confusion in both Trial Chambers as to the interpretation of Rule 70. Its sub-rules are badly drafted and elliptically expressed and it is to be hoped that the expansive interpretation now provided by the Appeals Chamber will clear up some of the problems. The Rule itself seems to have originated by considering the possible need for ICTY Prosecutors to obtain secret surveillance evidence – especially telephone intercepts – from Western States, which would naturally be concerned lest supply of such evidence would release information about the capacities of their intelligence organisations and so prove

51 Prosecutor v. Brđanin and Talić, Case No. IT-99-36-AR73.9, Decision on Interlocutory Appeal, 11 December 2002. 52 Dissenting Opinion of Justice Doherty on the Prosecution’s Oral Application for Leave to be Granted to Witness TF1-150 to Testify without being Compelled to Answer any Questions in Cross- Examination that the Witness Declines to Answer on Grounds of Confĳidentiality Pursuant to Rule 70(B) and (D) of the Rules, 22 September 2005, para. 16. 1162 part iii contrary to their national interest. So a distinction familiar in UK interception law made its appearance in Rule 70(B):53 the state or organisation could offfer the fruits of sensitive operations, on a confĳidential basis, so long as it was only used by the prosecutor for the purpose of investigating, i.e. to “generate new evidence” rather than being put in evidence itself or used e.g. to coach prosecution witnesses or cross-examine defendants. As long as its use was confĳined in this way, its very existence need not be disclosed to the defence. A particular state or supplying entity might, of course, change its mind over time and permit the information to be used in evidence – in which case disclosure would immediately be made to the defence. To what extent can Rule 70, designed to protect national security information, be used to protect “information” supplied by the UN or NGOs coming to the prosecution in the form of a witness employed by those entities? The section was construed authoritatively by the ICTY Appeals Chamber in the Milošević case. It said that the Rule was “designed to encourage states and others (such as “humanitarian organisations operating in the relevant territory” to assist the prosecution or (under paragraph F of the Rule) the defence. Its purpose: …is to encourage states, organisations, and individuals to share sensitive information with the tribunal. The Rule creates an incentive for such cooperation by permitting the sharing of information on a confĳidential basis and by guaranteeing information providers that the confĳidentiality of the information they offfer and of the information’s sources will be protected.54 13. This court will follow the ICTY approach in Milošević. Rule 70 encourages states, organisations and individuals to share sensitive information with the tribunal. It creates an incentive for such cooperation by permitting the sharing of information on a confĳidential basis and by guaranteeing information providers that the confĳidentiality of the information they offfer and of the information sources will be protected. When requesting a third party to provide it with confĳidential information the Prosecution can, at that time, guarantee to the provider that the information will not be disclosed without their consent. “Information” under Rule 70(B): a. must be in the prosecutor’s possession, b. must have been provided on a confĳidential basis; and c. can only be used for the purpose of generating new evidence. 14. The Court has the duty to ensure that Rule 70 is properly applied and particularly that witnesses claiming protection under Rule 70(D) have in fact provided the information under Rule 70(B). Rule 70(B) relevantly reads

53 See R. v. Preston (1994) 2 AC 130. 54 Prosecutor v. Milošević, Case No. IT-02-54-AR108bis & AR73.3, Public Version of the Confĳidential Decision on the Interpretation and Application of Rule 70, 23 October 2002, para. 18 interlocutory decisions – appeals chamber 1163

Matters not subject to disclosure B. If the prosecutor is in possession of information which has been provided to him on a confĳidential basis and which has been used solely for the purpose of generating new evidence, that initial information and its origin shall not be disclosed by the prosecutor without the consent of the person or entity providing the initial information and shall in any event not be given in evidence without prior disclosure to the accused. 15. The information is protected from disclosure not because it is necessarily confĳidential in the civil law sense, but because it is information “provided to (the prosecutor) on a confĳidential basis.” As the ICTY Appeals Chamber in Milošević case points out, it is not for the court to enquire, under 70(B), into whether the information itself is confĳidential: it needs only to be satisfĳied that the relationship established between the information supplier and the prosecutor is a confĳidential one. This could hardly be the case if the information was obtained by subpoena or from a police search: normally it will be the result of a negotiated approach by the prosecution to a state agency or to an organisation believed to have information, and that entity will agree to supply it under a stipulation (agreed by the prosecutor) that the relationship will be treated as confĳidential. If any issue subsequently arises as to whether information has been “provided on a confĳidential basis” the Court will be entitled to look at all the circumstances to decide whether the basis on which the information was supplied by the entity was that it should be treated as confĳidential by the prosecution – whether in fact it was confĳidential information is nothing to the point. So long as the Prosecutor uses the information solely for investigative purposes (i.e. “for the purposes of generating new evidence”) it remains immune from disclosure to the Defence without the consent of the supplier. This immunity covers both “the initial information and its origin,” i.e. the information itself and the identity of the supplying entity and (by implication) the identity of any person or agency which has provided the information to the entity that in turn supplies it to the prosecutor. This follows from the ordinary and natural meaning of the word “origin,” i.e. “that from which anything originates or is derived: source of being or existence; starting point.”55 16. It is plain that protection from disclosure is necessarily given by Rule 70(B) to the identity of the original source as well as to the identity of the supplying agency and to the information itself. If, however, the supplying entity subsequently con- sents, then the information itself may be given in evidence once proper disclosure has been made to the accused. This disclosure duty, however, is limited to that part of the information that the Prosecution intends to present in evidence. If the Prosecutor does not intend to call evidence as to the original source of the

55 Oxford English Dictionary, “origin.” 1164 part iii information, then the issue of whether the identity of that source can be elicited in cross-examination falls for decision under Rule 70(D). 17. Rule 70(D) reads: D. If the Prosecutor calls as a witness the person providing or a representative of the entity providing information under this Rule, the Trial Chamber may not compel the witness to answer any question the witness declines to answer on grounds of confĳidentiality. In determining whether to uphold a witness’s refusal to answer under this sub- Rule, the court must fĳirst be satisfĳied that he represents the entity which has provided information to the Prosecutor on the confĳidential basis described by Rule 70(B). Then, however, it must test the claim of confĳidentiality according to legal principles and satisfy itself that the information the witness seeks to withhold is truly of a confĳidential nature. To take an obvious example, information provided by cooperative NGO under Rule 70(B) may include a fĳile of press clippings and the witness may have given evidence based on information in those clippings. A refusal to answer questions directed to identifying that source could not possibly be upheld: although initially provided “on a confĳidential basis” to the prosecutor at the pre-trial stage covered by Rule 70(B), the information itself is entirely lacking in the quality of confĳidence (because it has been published to all the world) and cannot be protected under Rule 70(D). 18. It follows that a claim made under Rule 70(D) cannot be upheld without some enquiry into the nature of the information. In the CDF trial, the UN’s “human rights monitor” testifĳied about what he had been told of the incidence of child recruitment in a particular area of Sierra Leone. He declined to name his source, because he explained that he had given an undertaking not to do so from which he had not been released. He gave sufffĳicient information about the source for the court to recognise his claim to confĳidentiality as genuine: the source was truly “confĳidential” because the undertaking had been given to a person who had provided information on the strength of it and might still sufffer brutal reprisals if it was ever revealed that he was at the time divulging what he knew to the UN. Since the information had been provided originally to the prosecution by the UN under Rule 70(B), the court should not have compelled the witness to answer any question directed to identifying his confĳidential source. 19. It is at this point, in deciding whether a claim of confĳidentiality under Rule 70(D) is properly made by a witness in relation to information provided under Rule 70(B), that the broader issue of privilege may be relevant in confĳirming that the relationship between the witness and his source truly imports a duty of confĳi- dence. Privilege will, of course, be of vital importance where the witness cannot avail himself or herself of the shield affforded by Rule 70(D), because the information has not initially been provided to the prosecution under Rule 70(B). For these reasons, I will proceed to consider the broader issue of the extent to which the interlocutory decisions – appeals chamber 1165 confĳidential sources developed by human rights reporters can be protected from disclosure when those reporters subsequently testify in an international criminal court. The Defence Right to Challenge Prosecution Evidence 20. Let me fĳirst, however, deal with the objection forcibly made on behalf of the defendants that the interpretation of Rule 70 adopted by the ICTY in Milošević and now applied by this court is a breach of their rights fully to test the Prosecution evidence granted by Section 17 of the SCSL Statute. This objection does not arise in relation to material supplied under 70(B) to the Prosecution for use solely for the purposes of investigation, although there may be a potential difffĳiculty if that information includes exculpatory material. (Further investigation may stand it up to the extent that the prosecutor drops the charges: if by the time of trial it still points credibly to innocence, I would have thought that the prosecution has an obligation either to disclose it to the defence or to decline to proceed the change or changes in respect to which it points to innocence.56) Once information provided under Rule 70(B) has been introduced into evidence, and a claim of con- fĳidentiality has been upheld under Rule 70(D) which limits defence opportunities to test its reliability, the court has nonetheless ample powers to ameliorate any prejudice. This amplitude is emphasised by Rule 70(E) (the right of the accused to challenge the evidence presented by the prosecution shall remain unafffected subject only to limitations contained in sub-Rules (C) and (D)) and Rule 70(F) (nothing in sub-Rule (C) or (D) above shall afffect a Trial Chamber’s power to exclude evidence under Rule 95.) These provisions may also be used in a non-70(D) situation where a journalist or human rights reporter is permitted to protect confĳidential sources. These powers include: (1) Cross-Examination 21. The Defence may not elicit the name of the source, or obtain answers to any questions the witness reasonably believes will tend to identify that source. But his reliance on the source may be shaken in other ways: by confronting him with evidence that what the source told him could not be true; by establishing that the source was paid for the information; by eliciting the fact that the source came from a community or organisation that had an axe to grind or a motive for malice,

56 See Rule 68: Disclosure of Exculpatory Evidence (amended 14 March 2004) (A) The Prosecutor shall, within 14 days of receipt of the Defence Case Statement, make a statement under this Rule disclosing to the defence the existence of evidence known to the Prosecutor which may be relevant to issues raised in the Defence Case Statement. (B) The Prosecutor shall, within 30 days of the initial appearance of the accused, make a statement under this Rule disclosing to the defence the existence of evidence known to the Prosecutor which in any way tends to suggest the innocence or mitigate the guilt of the accused or may afffect the credibility of prosecution evidence. The Prosecutor shall be under a continuing obligation to disclose any such exculpatory material. 1166 part iii and so on. The witness can be questioned about the nature of his undertaking to the source, the genuineness of the source’s fear of reprisal; the circumstances of their meeting; whether the witness has contacted the source to seek a release from the undertaking, and so on. Obviously the court must respect the witness’s refusal to answer any question which might lead to the discovery of the source’s identity, but that still leaves some scope for a challenge to the reliability of the source and of the witness’s understanding of what the source actually told him. (2) Exclusion of the Evidence 22. Rule 95 provides that no evidence shall be admitted if its admission could bring the administration of justice into serious disrepute. This might well be the case if the prosecution were allowed to call a witness who averred that a confĳiden- tial source told him that the defendant had committed the alleged crime. The spectacle of defendants being confronted with hearsay statements from anonymous sources alleging their guilt of the crime charged would be a plain breach of the right to confront adverse witnesses guaranteed by Article 17(4)(e) of the Special Court Statute. The court might, alternatively, admit this sort of evidence and then give it no weight, but the preferable course is to exclude it ab initio, so that anonymous accusations of crime do not sully the court process. (3) Weighting Hearsay Evidence 23. That hearsay evidence is “admitted” or heard without objection does not mean that it is necessarily accepted as reliable or probative. A witness who objects to naming his source may diminish the probative value of any evidence he gives based on or inferred from what that source has told him. Hearsay evidence will be evaluated by the court at the end of the day and unless corroborated may count for very little. Its value will depend on the context and on all the circumstances: I cannot imagine a situation where conviction would actually turn upon uncorroborated hearsay. It may, nonetheless, be signifĳicant, usually by enabling the Prosecution readily to establish the existence of some factual situation which must be proved to exist before the defendant can be held on other, direct evidence, to have been responsible for it. Hearsay is routinely used by experts as part of the factual matrix upon which their opinions are based, and in this respect the approach of the ICTR Trial Chamber in Prosecutor v. Bizimungu is instructive.57 Dr. Alison des Forges was called as an expert: she based an opinion upon two accounts of a meeting with the ex-President given by confĳidential sources, con- fĳirmed (to the extent that the meeting did take place) by documentary evidence. Her right to withhold the names of her sources was upheld, although the court pointed out that this would be a factor to be considered in evaluating her

57 Prosecutor v. Bizimungu, case No. ICTR-99-50-T, Decision on Defence Motion for Exclusion of Portions of Testimony of Expert Witness Dr. Alison des Forges, 2 September 2005. interlocutory decisions – appeals chamber 1167 evidence. Bizimungu must be handled with care, however: it applies only to expert evidence and does not suggest that direct hearsay accusations cannot infringe fair trial rights. Defendants must never be convicted solely on evidence from anonymous accusers: the court efffectuates that principle by excluding or else devaluing hearsay accusations, rather than by compelling a witness who reports them to divulge the identity of the confĳidential source who made them.

Do Human Rights Reporters have a testamentary privilege? 24. The novel issue canvassed by the parties to this appeal is whether human rights reporters are entitled, in the course of their testimony, to decline to answer questions directed to identifying the source of their information. The Prosecution, forcefully supported by the amici, urges that the public interest requires them to possess such a privilege, either in absolute terms or at least on a qualifĳied basis. The defence urges that any entitlement to resist source disclosure would improperly undermine a defendant’s right to challenge the evidence given against him. 25. It is important at the outset to clarify one matter that has confused the submissions before us. The cases of Simić and Brđanin were concerned with the compellability of certain classes of persons to testify at all – whether the Red Cross was entitled to stop its employees from giving any evidence about their work (Simić) and whether a war correspondent was entitled to resist a subpoena issued by the court at the behest of the prosecutor (Brđanin). Although the approach taken by the court – in Brđanin at least – is instructive, the compellability of human rights reporters is not here in issue. The UN offfĳicial was perfectly willing to testify and the UN was agreeable so long as he did so in closed court. I should have thought that Amnesty International and Human Rights Watch – organisations that have done so much to alert the world to the need to try alleged perpetrators of crimes against humanity and have been so supportive of international criminal courts – should not be concerned if their monitors and researchers are called upon to provide evidence, whether at the instance of prosecution or defence or the court itself. These organisations issue reports which describe in detail facts which can be highly relevant to war crimes trials, compiled by their on-the-spot experts sometimes for the very purpose of galvanising international actions including prosecutions. For that reason, their reporters may be compelled (normally they will volunteer) to assist the court as experts (like Dr. des Forges) or as witnesses of fact. What they and their organisations are rightly concerned about is the danger that when under cross-examination they could be asked questions the honest answers to which would identify a source to whom they have promised anonymity and who may well be in danger of harsh or even lethal reprisals if publicly exposed or even if named in closed session. 26. A similar problem has taxed the courts for centuries in cases concerning police informers, where the answer is usually given that the public interest 1168 part iii requires non-disclosure unless there is a real danger of justice miscarrying – e.g. through the informant’s malice or invention. There is a great deal of domestic case law on how this balance should be struck, identifying situations (e.g. the involvement of a “participating informant” or an agent provocateur) when disclosure will be ordered. In common law systems, courts were initially inclined to protect information divulged in the course of established confĳidential relationships – husband and wife; priest and penitent; psychiatrist and patient etc, although the modern trend is to subordinate confĳidentiality to the interests of justice, especially in the prosecution of serious crime. The only exception, where judges have decided that confĳidentiality must be absolute, is within the lawyer/client relationship, although even in that sacrosanct area, inroads have been made by requiring, for example, notifĳication of certain fĳinancial transactions or of plans by clients to commit crime. The closest analogy with the present case is the claim of journalists to protect their sources and in this respect we have the benefĳit of the landmark ECHR decision in Goodwin v. UK which in turn influenced the ICTY decision granting war correspondents qualifĳied compellability in the Brđanin case. 27. Goodwin decided that a qualifĳied privilege to protect journalistic sources followed from the right to freedom of expression. The public right to newsworthy information entails that those who supply it to journalists, frequently in breach of the confĳidence of their employers or colleagues, should nonetheless be protected because otherwise these sources would “dry up,” i.e. stay silent, and much newsworthy information would not be imparted and would not in consequence be published. The European Court of Human Rights held: Protection of journalistic sources is one of the basic conditions for press freedom, as is reflected in the laws and professional codes of conduct in a number of contracting states and is afffĳirmed in several international instruments on journalistic freedoms. Without such protection, sources may be deterred from assisting the press and informing the public on matters of public interest. As a result the vital public- watchdog role of the press may be undermined and the ability of the press to provide accurate and reliable information may be adversely afffected. Having regard to the importance of the protection of journalistic sources for press freedom in a democratic society and the potentially chilling efffect an order of source disclosure has on the exercise of that freedom, such a measure cannot be compatible with Article 10 of the Convention unless it is justifĳied by an overriding requirement in the public interest.58 28. The reasoning behind the protection of journalistic sources can, it seems to me, be applied in principle to human rights reporters, or at least to those “monitors” who are in efffect tasked with collecting information for public purposes – to inform the reports of the UN Secretary General (which may well lead to Security Council action) or to research for reports issued to the public by NGOs like

58 Goodwin v. United Kingdom, [1996] ECHR 16, para. 39. interlocutory decisions – appeals chamber 1169

Amnesty and Human Rights Watch. There is in my judgement little meaningful diffference in this respect between an investigative journalist tracking a story in a war-torn country, a war correspondent reporting on the ebb and flow of the conflict, and a researcher for a human rights organisation fĳiling information for an “in depth” report or for fĳiltered use in an annual report, or for a UN monitor gathering information for a Secretary General’s report to the Security Council. All are exercising a right to freedom of expression, (and, more importantly, assisting their source’s right of free speech) by extracting information for publication from people who would not give it without an assurance that their names will remain anonymous. The reprisal they often face in such circumstances, unlike the risk run by Mr. Goodwin’s source of being sacked or sued for breach of confĳidence, is of being killed as an “informer” – a traitor to the organisation or the community on whom they are silently squealing. To identify them in court would betray a promise and open them to such reprisals: more importantly, if courts routinely ordered witnesses to name their sources, then information about human rights abuses would diminish because reporters could not in good conscience elicit it by promises to protect their sources. For these reasons, I consider that “human rights monitors,” like journalists, have a privilege to refuse to name those sources to whom they have promised anonymity and who are in danger of reprisal if that promise is broken. In practical terms, that means they must not be compelled to do so by threats to invoke the court’s power to hold them in contempt and to fĳine or imprison them. It does not mean, of course, that the evidence that they give, based on information from sources they decline to name, will be accorded normal weight. Their entitlement to protect their source has this downside for the party that calls them: it may lose some and perhaps all of the weight that might otherwise be placed on the evidence that is given based on the anonymous source material. 29. This right to protect sources must be qualifĳied rather than (as some amici argue) absolute. It cannot extend beyond the public interest which sustains it in the fĳirst place. Just as a journalist who writes of his discovery of an “impeccable source” for the innocence of a man being tried for murder will be compelled to disclose that source on pain of a fĳinding of contempt of court, so a human rights monitor who offfers, say, a hearsay account of a defendant’s confession of guilt, may well be required to identify the source. There can be no confĳidence in iniq- uity, and any reporter who has been tricked into giving an undertaking of confĳi- dentiality to someone who has exploited them to put false evidence before the court in an attempt to pervert justice will not be allowed to protect that source. Instances might be multiplied, although in practice interesting hypotheticals are usually resolved by the parties themselves declining to call a witness if there is a danger that a genuinely confĳidential source will be exposed. That danger can be forestalled by an application for a preliminary ruling as was sensibly made in this case. No court wishes to punish for contempt a witness of probity who refuses to answer a question on grounds of honest conscience. 1170 part iii

30. The majority in both Trial Chambers were wrong to regard the privilege to protect a confĳidential source merely as an interest to be balanced against the interest of the Defence in securing a fair trial. This approach fails to recognise that the privilege itself has emerged as a result of balancing the public interest in protecting confĳidential news sources against countervailing public interests, and one reason why the balance has come down in favour of the qualifĳied privilege is that the court can avoid unfairness to the defence by excluding anonymous hearsay or by giving it less weight. Members of local communities in war zones must be able to trust UN monitors when they promise that cooperation will remain confĳiden- tial. If courts were to make the privilege contingent upon an unpredictable balancing exercise, this would preclude the honest giving of promises to protect and hence reduce the information available to the UN. As its High Commissioner for Human Rights has submitted: Failure to recognize a rule protecting the confĳidentiality of the identities of those who provide information to U.N. human rights offfĳicers would undermine the credibility of guarantees of confĳidentiality which such offfĳicers are required to provide, leading local actors to lose confĳidence in the trustworthiness and independence of U.N. human rights offfĳicers. This would inevitably result in local populations (including NGOs and other local groups and institutions) being unwilling to cooperate with, and provide reliable information to, U.N. human rights offfĳicers, thereby making it impossible for the human rights offfĳicers to carry out their functions efffectively.59 31. This is a claim of a kind that is not susceptible to proof, but which experience suggests is likely to have some substance and should not lightly be put aside. There is an overriding international public interest in UN human rights reporters being able to give an assurance of confĳidentiality to those who put their necks on the line to inform on the murderous activities of powerful forces or fĳigures within their community: the punishment of “necklacing” in apartheid South Africa is a vivid reminder of just how ferocious revenge can be against those who inform. The High Commissioner accepts that the privilege is qualifĳied, but only where the disclosure of an informant’s identity could raise a reasonable doubt as to the guilt of the accused. There may be other hard cases – where for example the prosecution tenders uncorroborated hearsay evidence that the defendant committed a truly atrocious crime – but their exceptionality and rarity should not preclude an honest guarantee of confĳidentiality. In practice, where information of this signifĳi- cance is volunteered, it will be the duty of the monitor’s organisation to convince the source to come forward and testify, under conditions (including relocation of the source and his family) that will provide sufffĳicient protection. 32. The public interest in protecting UN sources so as to keep a free flow of information to the Security Council can readily be appreciated. Does that interest

59 Amicus Curiae Brief of the United Nations High Commissioner for Human Rights, 16 December 2005, para. 37. interlocutory decisions – appeals chamber 1171 apply with the same force to organisations like Amnesty and Human Rights Watch? In this respect their work is indistinguishable in principle (if not in expertise) from that of other media outlets: they collect and expertly analyse information about human rights abuses in various countries and publish it in annual and in special reports which are widely disseminated and which serve to inform governments and international institutions, as well as the interested public, about such abuses and serve as a basis for campaigns to end them. The public interest in the free flow of information to such publications is at least as great as to other investigative media. Moreover, the consequences of exposure for sources of this kind of information can be calamitous. It is apt to recall that the protective rule in Goodwin was fashioned in the context of the genteel environment of the City of London, where a business journalist was fĳined £1,500 for refusing to name an “insider” source of information about a company’s fĳinances: the source would face only disciplinary action or a writ for breach of confĳidence. In repressive countries, sources for Amnesty and Human Rights Watch reporters who tell of torture, death squads and arbitrary imprisonment may, if exposed, face these very consequences. Not only may they be brutally treated as punishment for embarrassing the government or other power brokers, but their families and friends may also face reprisals. This fact underlines the need for the protective rule that I have identifĳied as a privilege in the witness, although that “privilege” is a reflection of the rather more weighty “right” of the source. 33. It permits the journalist or monitor – in efffect, the reporter – to withhold the source’s name or identifying details when questioned in court. This means that such a refusal should not amount to contempt and so cannot be punished by fĳine or imprisonment. It also carries the consequence that the court must adjust its reception of evidence based on the unidentifĳied source to ensure a fairness to the defence, e.g. by excluding it from consideration altogether or reducing its weight or requiring corroboration before it is taken into account. The privilege is not absolute, but must yield in cases where the identifĳication of the source is necessary either 1) to prove guilt, or 2) to prove a reasonable doubt about guilt. In the fĳirst case, e.g. where the reporter tells of a source who claims to be an eye-witness to the crime or the recipient of a confession from the defendant, the problem may in practice be avoided if the Prosecution declines to lead the evidence, which would be inadmissible hearsay in common law jurisdictions. In the second case, as the UNHCHR accepts, there is no way out: the overriding importance of avoiding a miscarriage of justice does require the naming of an exculpatory witness, or (if the prosecution wishes to avoid this) dropping the charge upon which the hearsay evidence is based. 34. One problem to which the amici have not adverted is the proliferation of “human rights NGOs” – several thousand, at last count – most with “monitors” of varying calibre and experience. Some of these NGOs have been accused of 1172 part iii sensationalising reports in order to gain support for campaigns or membership subscriptions, whilst others might have a bias derived from political connections. Certain NGOs with “human rights” in their title may even undermine human rights causes.60 Are all these “human rights monitors” to be accorded a qualifĳied privilege to withhold the names of sources – a privilege we may be content to award to those who work for the three amici? For myself, I do not see how a meaningful distinction can be made any more than the Goodwin privilege can be denied to the many “journalists” who have a propaganda agenda or report on wars where they support one side or the other. The reporter’s privilege is, after all, the obverse of the right possessed by the source, who may speak low, in fear and trembling, to the fĳirst journalist or monitor who appears in his burnt out village, completely unaware of any bias and concerned only that their identity be protected if they tell what they know. The prospect that what they say will be “spun” or exaggerated by partisan journalists or monitors does not lose the source his or her right to be protected from exposure: what it does mean is that the court must give the party which cross-examines the reporting witness full reign to explore any bias or hid- den agenda or other motive for distortion or exaggeration. 35. Courts must guard against allowing prosecutions to present evidence which amounts to no more than hearsay demonisation of defendants by human rights groups and the media. The right of sources to protection is not a charter for lazy prosecutors to make a case based on second-hand media reports and human rights publications. Unchecked hearsay has an inevitable place in the factual matrix upon which expert opinion is based (e.g. the evidence of Dr. des Forges in Bizimungu) and it may be introduced uncontroversially for secondary purposes and to fĳill gaps: it may be the best evidence available or it may be corroborated by fĳirst-hand evidence. The court’s scrutiny of it will be the more intense the closer it comes to implicating a defendant and there may come a point at which it may be rejected entirely unless the source can be identifĳied. 36. This approach upholds a reporter’s privilege to protect sources who tell of their crimes, derived from the source’s right both to speak freely about abuses and to assist the well-established international law duty of states and international agencies to investigate crimes against humanity. To efffectuate that doubly- justifĳied right, certainly in repressive or post-conflict societies, the source is entitled to expect that the reporter deliver on the undertaking never to disclose identity without consent. If that is the condition upon which the information is vouchsafed, the reporter who comes to testify in a war-crimes court is under a duty of conscience to refuse to answer questions which may expose the source. The court must respect that refusal, either by applying Section 70(D) where the

60 According to the Economist, 4 December 2004, “Yanukovich’s Friends – a human rights group that defends dictators.” interlocutory decisions – appeals chamber 1173 evidence has originated in circumstances covered by Rule 70(B) or in other cases by relieving the witness of the duty to answer. There should be no fĳinding of contempt made against a reporter who refuses to disclose a confĳidential source, unless the court is satisfĳied that the source’s right to protection is overridden by the interests of justice, either in establishing the defendant’s guilt or in demonstrating a real prospect that he is innocent. 37. This approach should be applied pragmatically, by courts which recognise the danger (observed at the ICTY and ICTR) that witnesses (and sources) who have been embroiled in armed conflict may be partisan and in some cases malicious, even to the extent of inventing or fabricating evidence. Fabrication, moreover, may without cross-examination of the source fool even the most experience human rights monitor (it was, after all, an experienced researcher for a respect- able organisation who published the notoriously false story about the Kuwaiti babies being thrown out of hospital incubators by Iraqi troops during the fĳirst Gulf war). On the other hand, there must be an equal recognition that score-settling will continue for long after the conflict and that sources may be assaulted, killed or driven out of their communities as the result of exposure. On that hand, too, there must be a recognition that closed court hearings do not provide any fĳirm guarantee that information about the source will not leak: the name must be provided to the defendant as well as to a variety of lawyers, prosecution and defence investigators and court stafff. This court has had one case where its protective measures were insufffĳicient to protect a witness. The right of the source extends to having the confĳidential undertaking by the reporter respected by the Court, although since the source may at any time release the reporter from that undertaking it will be reasonable to enquire of the reporter whether such a release has been sought. 38. The reporter’s privilege for human rights monitors must follow, in my view, from the decision in Goodwin extrapolated to a conflict situation where reports are being made to inform and influence the public. It is powerfully supported by dicta in Brđanin, a case in which the ICTY Appeals Chamber ruled that war correspondents could not be compelled to testify in war crimes courts unless the party which subpoenaed them could establish that their evidence would be “really sig- nifĳicant” – i.e. of direct and important value in determining a core issue in the case, and that in any event this evidence could not reasonably be obtained elsewhere. That conclusion was reached in respect of war correspondents – many (but not all) of whom insist that their profession depends upon strict neutrality and that in an ongoing conflict their neutrality would be undermined were they to appear for any “side” in a war crimes trial. In fashioning a rule that accommodated this interest, the Appeals Chamber took Goodwin as its starting point, namely that the freedom of expression guarantee protects sources in order to maintain the free flow of public interest information. The court in Brđanin went on to assess war zone information as serving the highest public interest: 1174 part iii

In war zones, accurate information is often difffĳicult to obtain and may be difffĳicult to distribute or disseminate as well. The transmission of that information is essential to keeping the international public informed about matters of life and death… There is the public interest in the work of war correspondents, which requires that the newsgathering function be performed without unnecessary constraints so that the international community can receive adequate information on issues of public concern.61 The court concluded that compelling war correspondents to testify on a routine basis “may have a signifĳicant impact upon their ability to obtain information and thus their ability to inform the public on issues of general concern.”62 39. I see no meaningful distinction between the war correspondent and the human rights reporter in terms of the importance of the information they gather or the public interest that its publication will serve or the danger that it will dry up if the court routinely orders them to identify their sources. Brđanin was a case on compellability rather than privilege but it assumes that on the limited occasions when war correspondents are compelled to testify on core issues, they will be accorded a Goodwin-style privilege to withhold the names of their sources. It is that assumption which this case must put in a defĳinitive form. 40. The prosecution and amici have placed reliance additionally upon Simić but I agree with the Defence that this case does not assist them. It is an ICTY Trial Chamber majority decision to the efffect that the ICRC, because of its unique position under the Geneva Conventions, was entitled in customary international law to an absolute privilege which could be exerted to prevent employees from giving evidence of observations made whilst on Red Cross work. It was a ruling that Red Cross employees and ex-employees lacked capacity to testify. Like Justice Hunt, who dissented, I do not fĳind in customary international law any warrant for such a sweeping and absolute exemption from those dictates of conscience and humanity which will often impel witnesses of crimes against humanity to offfer to testify, irrespective of confĳidentiality arrangements. The ICRC has a duty to remain neu- tral but that does not mean that customary international law treats its employees and ex-employees as incompetent to testify, certainly if their evidence is indispensable to determining guilt or innocence. The ICRC has been criticised for choosing to say nothing about the holocaust in order that its work in prisoner of war camps in Germany might not sufffer,63 and there is no basis for fĳinding a warrant for that position in customary international law. Should an ex-employee offfer eye-witness evidence that a defendant ordered torture or (even more pointedly) offfer conclusive evidence that a defendant was not involved in the acts of torture

61 Prosecutor v. Brđanin and Talić, Case No. IT-99-36-AR73.9, Decision on Interlocutory Appeal, 11 December 2002. paras. 36, 46. 62 Ibid., para. 44. 63 David Riefff, A Bed for the Night – Humanitarianism in Crisis (Vintage, 2002) pp. 76–77, 148. interlocutory decisions – appeals chamber 1175 with which he was charged, I doubt that the majority Trial Chamber decision in Simić should be followed so as to debar the court from hearing such crucial evidence. The preferable rule is that ICRC employee evidence should be excluded unless it is indispensable to prove a crime of utmost gravity.64 Justice Hunt preferred to balance the competing interests: his test was “whether the harm which would be done by the allowance of the evidence outweighs the harm done by the frustration or the impairment to justice if the evidence is not available.”65 While it would only be in a rare case that the Red Cross employee would be ordered to testify, he identifĳied two such situations: “Where the evidence of an offfĳicial or employee of the ICRC is vital to establish the innocence of the accused person” and “Where the evidence of an offfĳicial or employee of the ICRC is vital to establish the guilt of the particular accused in a trial of transcendental importance.”66 He thus concluded that: The correct test is whether the evidence to be given by the witness in breach of the obligations of confĳidentiality owed by the ICRC is so essential to the case of the relevant party (here the prosecution) as to outweigh the risk of serious consequences of the breach of confĳidence in the particular case. Both the gravity of the charges and the availability of means to avoid disclosure of the fact that the evidence has been given would be relevant to that determination.67 Simić is far removed from the present case: it concerns not testamentary privilege but the incapacity of a witness to testify, as the result of a unique international obligation undertaken by the potential witness’s employer and enshrined in the Geneva Conventions. 41. The court has been helpfully supplied by Professor Knoops and his defence team with an analysis of European Court jurisprudence on defence rights. That shows that where witnesses do not attend for cross-examination but the court places reliance on their statement or deposition, or in the case of an anonymous witness Article 6 is not necessarily violated unless either there is no reason for anonymity, or the evidence has been determinative of guilt. The leading case is Delta v. France, which concerned a conviction for assault where the defendant had not been allowed to cross-examine the victim or an eye-witness who provided the written statements on which he was convicted. The court held: In principle, the evidence must be produced in the presence of the accused at a public hearing with a view to adversarial argument. This does not mean, however, that in

64 This was the ICRC fall-back position in argument in Simić. See, Prosecutor v. Simić et al., Case No. IT-95-9, [Public Version] Ex Parte Confĳidential Decision on the Prosecution Motion under Rule 73 for a Ruling Concerning the Testimony of a Witness, 27 July 1999, para. 19. 65 Separate Opinion of Judge David Hunt on Prosecutor’s Motion for a Ruling Concerning the Testimony of a Witness, 27 July 1999, para. 27. 66 Ibid., paras. 29–31. 67 Ibid., para. 35. 1176 part iii

order to be used as evidence statements of witnesses should always be made at a public hearing in court: to use as evidence such statements obtained at the pre-trial stage is not in itself inconsistent with paragraphs 3(d) and 1 of Article 6, provided the rights of the defence have been respected. As a rule, these rights require that an accused should be given an adequate and proper opportunity to challenge and question a witness against him, either at the time the witness makes his statement or at some later stage of the proceedings.68 42. I agree, but this case too is far removed from the present, where the defence will have full opportunity to challenge the reliability and credibility of the reporter- witness and to argue for the minimalisation of such part of his evidence as may be based on an unidentifĳied source. That evidence is entirely secondary: it does not name or implicate any defendant, but simply offfers one description of a situation on the ground, so that the court may assess (with the help of other evidence) whether there was a pattern of criminal conduct. It should be heard, for what it is worth, as a background fact, and the reporters privilege to decline to name the source for it should be upheld.

Conclusion

43. This appeal should be upheld. The majority decision below should be reversed. The prosecution request for leave for witness TF1-150 to testify without being compelled to reveal the identity of his source in accordance with a privilege not to disclose the name of confĳidential informants, or alternatively pursuant to Rule 70(D), should be upheld.

68 Delta v. France, [1990] ECHR 30, para. 36. The Law Reports of the Special Court for Sierra Leone

Volume I - Book II

The Law Reports of the Special Court for Sierra Leone

Volume I

Prosecutor v. Brima, Kamara and Kanu

(The AFRC Case)

Book II

Edited by Charles Chernor Jalloh Simon M. Meisenberg

ᆕ 2012 Library of Congress Cataloging-in-Publication Data

This book is printed on acid-free paper.

About the Editors ...... xv Foreword by President Jon Kamanda ...... xvii Foreword by Registrar Binta Mansaray ...... xix Preface ...... xxiii

Introduction ...... xxxi

PART I INDICTMENTS

PART II ᅱ

Decision on Constitutionality and Lack of Jurisdiction, 13 March 2004 ...... 903 Decision on Challenge to Jurisdiction: Lomé Accord Amnesty, 13 March 2004 ...... 925 xii contents

PART IV JUDGMENTS

PART V

PART IV

JUDGMENTS

TRIAL CHAMBER II

Before: Justice Julia Sebutinde, Presiding Judge Justice Richard Lussick Justice Teresa Doherty Registrar: Herman von Hebel 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 Kojo Graham Christopher Staker Glenna Thompson Charles Hardaway Lesley Taylor Defence Counsel for Brima Bazzy Kamara: Melissa Pack Andrew Daniels Vincent Wagona Mohamed Pa-Momo Fofanah Shyamala Alagendra Defence Counsel for Santigie Borbor Kanu: Geert-Jan Alexander Knoops Agibola E. Manly-Spain Carry Knoops

Revised pursuant to corrigendum issued by the Trial Chamber in Order of 19 July 2007. 1180 part iv

DETAILED TABLE OF CONTENTS

I. INTRODUCTION ...... 1205 A. The Special Court For Sierra Leone ...... 1205 B. Procedural History ...... 1205 C. The Accused ...... 1207 D. Summary of the Charges ...... 1207

II. ALLEGED DEFECTS IN THE FORM OF THE INDICTMENT ...... 1209 A. History of Indictments...... 1209 B. Scope of Review ...... 1210 C. Applicable Pleading Principles ...... 1211 D. Discussion ...... 1213 1. Particulars of Victims and Locations ...... 1213 (a) Victims ...... 1213 (b) Locations ...... 1214 (c) Offfences of a Continuous Nature...... 1215 2. Alleged Failure to Plead that Crimes were Committed by the Accused...... 1216 (a) Pleading Principles When the Mode of ‘Committing’ is Alleged ...... 1217 (b) Findings ...... 1219 3. Objections Relating to Joint Criminal Enterprise (“JCE”) ...... 1220 (a) Submissions of the Parties ...... 1220 (b) Pleading Principles ...... 1221 (c) Deliberations ...... 1224 (d) Findings ...... 1227 4. Alleged Failure to Specify Factual Foundation of Responsibility Pursuant to Article 6(3) of the Statute ...... 1230 5. Alleged Failure to Distinguish Between Individual Criminal Responsibility Under Article 6(1) and 6(3) of the Statute ...... 1230 6. Pleading of Count 7: Sexual Slavery and Any Other Form of Sexual Violence (Article 2(g) of the Statute) ...... 1231 (a) Submissions of the Parties ...... 1231 (b) Findings ...... 1231

III. CONSIDERATIONS REGARDING THE EVALUATION OF EVIDENCE ...... 1233 A. Law Applicable to the Assessment of Evidence ...... 1233 1. Burden and Standard of Proof ...... 1233 2. Admission of Evidence ...... 1234 judgments 1181

B. Forms of Evidence Under Review ...... 1235 1. Witness Testimony ...... 1235 (a) Discrepancies Between the Evidence of Various Witnesses, or Between the Evidence of a Particular Witness and a Previous Statement ...... 1237 (b) Crimes Involving Sexual Violence ...... 1238 (c) Names of Locations ...... 1238 (d) Testimony of Accused in his own Defence ...... 1239 (e) Alibi of Accused Brima ...... 1239 (f) Witnesses Implicated in the Commission of the Crimes ...... 1241 (g) ‘Incentives’ for Witnesses ...... 1241 (h) Putting the Defence Case to Prosecution Witnesses ...... 1242 2. Documentary Evidence ...... 1243 (a) Introduction ...... 1243 (b) Copies and Internet Sources ...... 1244 (c) Radio Broadcasts and Transcripts Thereof ...... 1245 (d) Documents Used in Cross-Examination by the Prosecution...... 1245 3. Expert Testimony and Reports ...... 1246 4. Facts of which Judicial Notice was Taken ...... 1247 5. Agreed Facts ...... 1248

IV. CONTEXT OF THE ALLEGED CRIMES ...... 1249 A. Political Precursors ...... 1249 B. The Armed Conflict in Sierra Leone from 1991 to 1997 ...... 1249 C. The Armed Conflict in Sierra Leone from 1997 to 1998 ...... 1250 1. The AFRC/RUF Government Period (May 1997 to February 1998) ...... 1250 (a) The 25 May 1997 Coup and the AFRC/RUF Government ...... 1250 (b) Territorial Control of the AFRC/RUF Government ...... 1251 (c) Relationship between the AFRC and RUF ...... 1252 (d) Military Pressure on the AFRC Government ...... 1253 (e) The February 1998 ECOMOG attack on Freetown and the retreat of AFRC/RUF forces ...... 1254 D. The Armed Conflict in Sierra Leone from 1998 to 2001 ...... 1254 1. Post AFRC/RUF Government period (February 1998 to May 1998) ...... 1254 (a) Restructuring of the AFRC/RUF troops in the Districts (February 1998) ...... 1254 (b) Planning the attack on Koidu Town (end February 1998) ...... 1255 2. Kono District (March 1998 to May/June 1998)...... 1256 1182 part iv

3. Koinadugu and Kailahun District (February 1998 – November 1998) ...... 1257 4. Koinadugu and Bombali Districts (May 1998 – November 1998) ...... 1257 (a) Retreat from Kono District (April/May 1998) ...... 1257 (b) AFRC Troop Movement from East to West (May 1998– November 1998) ...... 1258 5. Advance on Freetown (November to December 1998) ...... 1260 6. Attack on Freetown (January 1999) ...... 1261 7. Retreat from Freetown (January/February 1999) ...... 1262 8. Port Loko District (February 1999 – April 1999) ...... 1262 E. The 1999 Lomé Peace Accord and the Cessation of Hostilities in Sierra Leone in 2001 ...... 1262

V. GENERAL REQUIREMENTS FOR ARTICLES 2, 3 AND 4 OF THE STATUTE ...... 1264 A. Article 2 of the Statute: Crimes Against Humanity ...... 1264 1. The Law ...... 1264 (a) There must be an attack ...... 1265 (b) The attack must be widespread or systematic ...... 1265 (c) The attack must be directed against any civilian population ...... 1266 (d) The acts of the perpetrator must be part of the attack ...... 1268 (e) The perpetrator must have knowledge that his acts constitute part of a widespread or systematic attack directed against a civilian population ...... 1268 2. Submissions of the Parties ...... 1269 3. Findings ...... 1269 (a) AFRC/RUF Government period ...... 1270 (b) Post AFRC/RUF Government Period (February 1998- January 2000) ...... 1272 B. Article 3 of the Statute: Violations of Article 3 Common to the Geneva Conventions and of Additional Protocol II ...... 1276 1. The Law ...... 1276 (a) There must have been an armed conflict whether non- international or international in character at the time the offfences were allegedly committed...... 1277 (b) There must be a nexus between the armed conflict and the alleged offfence ...... 1278 (c) The victims were not directly taking part in the hostilities at the time of the alleged violation ...... 1278 2. Findings ...... 1278 judgments 1183

C. Article 4 of the Statute: Other Serious Violations of International Humanitarian Law ...... 1280 1. The Law ...... 1281 2. Findings ...... 1281

VI. POLITICAL STRUCTURE OF THE AFRC GOVERNMENT ...... 1282 A. Introduction ...... 1282 B. The Armed Forces Revolutionary Council Government ...... 1283 1. The Governing Council of the AFRC Government ...... 1286 2. Information Available to the Governing Council ...... 1289 3. Principal Liaison Offfĳicers (“PLOs”) ...... 1289 4. Honourables ...... 1291 C. Conclusion ...... 1291

VIII. ROLE OF THE ACCUSED ...... 1292 A. Introduction ...... 1292 B. Alex Tamba Brima ...... 1292 1. Allegations and Submissions ...... 1292 2. Personal Background of Brima ...... 1293 3. The Identity of Brima ...... 1294 4. Positions of Responsibility in the AFRC Government (25 May 1997 – 14 February 1998)...... 1295 (a) Involvement in the 25 May 1997 Coup ...... 1296 (b) Council Membership ...... 1296 (c) Principal Liaison Offfĳicer 2 ...... 1297 (d) Mining Supervision in Kono and Kenema Districts ...... 1298 (e) Findings ...... 1300 5. Brima’s Alleged Arrest in Kono and Kailahun Districts (February – May 1998) ...... 1300 (a) Brima’s Alibi for Kono District ...... 1300 (b) Return to Kono District ...... 1301 (c) Findings ...... 1302 6. Brima’s Alleged Arrest in Koinadugu and Bombali Districts (February – November 1998) ...... 1302 (a) Brima’s Alibi for Koinadugu and Bombali Districts ...... 1303 (b) Command of the Advance Troops from Mansofĳinia to Rosos ...... 1305 (i) The Credibility of Witnesses ...... 1305 a. Prosecution Witnesses...... 1305 i. TF1-334 ...... 1305 ii. TF1-184 ...... 1306 iii. TF1-033 ...... 1307 1184 part iv

iv. TF1-153 ...... 1308 v. George Johnson ...... 1308 b. Defence Witnesses ...... 1309 (c) Findings ...... 1310 (d) Brima’s Alleged Detention at ‘Colonel Eddie Town’ ...... 1312 (e) Advance on Freetown...... 1313 7. Brima’s Role in Freetown and the Western Area (January 1999 – February 1999)...... 1314 (a) Prosecution Witnesses ...... 1314 (b) Defence Witnesses ...... 1317 (c) Findings ...... 1321 8. Brima’s Role in Port Loko District (February 1999 – July 1999) ...... 1321 (a) Findings ...... 1321 C. Ibrahim Bazzy Kamara ...... 1322 1. Allegations and Submissions ...... 1322 2. Personal Background of Kamara ...... 1323 3. Positions of Responsibility in the AFRC Government (25 May 1997–14 February 1998) ...... 1323 (a) Involvement in the 25 May 1997 Coup ...... 1324 (b) Council Membership ...... 1324 (c) Principal Liaison Offfĳicer 3 ...... 1324 (d) Findings ...... 1325 4. Kamara’s Role in Kono and Kailahun Districts (14 February– 30 June 1998) ...... 1325 (a) Kamara’s Role prior to the Departure of Johnny Paul Koroma from Kono District ...... 1326 (b) Kamara’s Role after the Departure of Johnny Paul Koroma from Kono District ...... 1328 (i) Prosecution Witnesses...... 1328 (ii) Defence Witnesses ...... 1328 (c) Findings ...... 1330 (d) The Return of the Accused Brima ...... 1330 5. Kamara’s Role in Koinadugu and Bombali Districts (June 1998 – November 1998) ...... 1330 (a) Kamara’s Command Position within the AFRC Troops from Mansofĳinia to Rosos...... 1331 (b) Kamara’s Alleged Detention in ‘Colonel Eddie Town’ ...... 1332 6. Kamara’s Role in Freetown and the Western Area (January 1999 – February 1999)...... 1332 (a) Findings ...... 1333 judgments 1185

7. Kamara’s Role in Port Loko District (February 1999 – July 1999) ...... 1333 (a) The Presence of the Accused in Port Loko District ...... 1334 (i) Prosecution Witnesses...... 1334 (ii) Defence Witnesses ...... 1335 (iii) Findings ...... 1336 (b) Command of the AFRC troops in the ‘West Side’ ...... 1336 (i) Prosecution Witnesses...... 1336 (ii) Defence Witnesses ...... 1337 (iii) Findings ...... 1340 D. Santigie Borbor Kanu ...... 1340 1. Allegations and Submissions ...... 1340 2. Personal Background of Kanu ...... 1341 3. Positions of Responsibility in the AFRC Government (25 May 1997 – 14 February 1998)...... 1341 (a) Involvement in the 25 May 1997 Coup ...... 1342 (b) Council Membership ...... 1342 (c) Other Activities ...... 1342 4. Kanu’s Role in Kono and Kailahun Districts (February 1998–May 1998) ...... 1343 5. Kanu’s Role in Koinadugu and Bombali Districts (June 1998–November 1998) ...... 1344 (a) Kanu’s Position within the AFRC Troops from Mansofĳinia to Rosos ...... 1344 (i) Prosecution Witnesses...... 1344 (ii) Defence Witnesses ...... 1345 (b) Findings ...... 1345 (c) Kanu’s Alleged Detention in ‘Colonel Eddie Town’ ...... 1346 6. Kanu’s Role in Freetown and the Western Area (January 1999 – February 1999)...... 1346 (a) Findings ...... 1348 7. Kanu’s Role in Port Loko District (February 1999 – July 1999) ...... 1348

VIII. MILITARY STRUCTURE OF THE AFRC FIGHTING FORCE ...... 1349 A. Preliminary Remarks ...... 1349 B. Submissions of the Parties ...... 1350 C. Military Uniforms ...... 1351 D. Evidentiary Considerations ...... 1352 (a) Military Expert Witnesses ...... 1352 (b) Factual Witnesses ...... 1356 1186 part iv

E. Findings on the Military Structure of the AFRC Fighting Force ...... 1357 (a) Kono District (14 February 1998 through 30 June 1998) ...... 1357 (i) The Chain of Command ...... 1357 (ii) Planning and Orders Process ...... 1359 (iii) Disciplinary System ...... 1360 (iv) Conclusion ...... 1360 (b) Bombali District (May 1998-November 1998) ...... 1360 (i) The Chain of Command ...... 1360 (ii) Planning and Orders Process ...... 1363 (iii) Disciplinary System ...... 1365 (iv) Conclusion ...... 1367 (c) Freetown and the Western Area (January 1999) ...... 1367 (i) Chain of Command ...... 1367 (ii) Planning and Orders Process ...... 1370 (iii) Disciplinary System ...... 1371 (iv) Conclusion ...... 1373 (d) Port Loko District (February through April 1999) ...... 1373 (i) Chain of Command ...... 1374 (ii) Planning and Orders Process ...... 1374 (iii) Disciplinary System ...... 1375 (iv) Conclusion ...... 1376

IX. APPLICABLE LAW ...... 1377 A. Introduction ...... 1377 B. The ‘Greatest Responsibility Requirement’ ...... 1378 1. Jurisdictional Requirement or Prosecutorial Discretion ...... 1378 (a) Submissions ...... 1378 (b) Findings ...... 1380 2. Scope of “the greatest responsibility requirement’ ...... 1382 C. Law on the Charges ...... 1383 1. Count 1: Acts of Terrorism (Article 3(d) of the Statute) ...... 1383 (a) Elements of the Crime ...... 1386 2. Count 2: Collective Punishments (Article 3(b) of the Statute) ...... 1388 (a) Elements of the Crime ...... 1389 3. Counts 3, 4 and 5: Unlawful Killings ...... 1391 (a) Count 3: Extermination (Article 2(b) of the Statute) ...... 1391 (b) Count 4 (Article 2(a) of the Statute) and Count 5 (Article 3(a) of the Statute): Murder ...... 1393 4. Counts 6, 7, 8 and 9: Sexual Crimes ...... 1394 (a) Count 6: Rape (Article 2(g) of the Statute) ...... 1394 (b) Count 7: Sexual Slavery and Any Other Form of Sexual Violence (Article 2(g) of the Statute) ...... 1396 judgments 1187

(c) Count 8: Other Inhumane Acts (Article 2(i) of the Statute) ...... 1396 (i) Elements of the Crime ...... 1396 (ii) Submissions on the alleged crime of ‘forced marriage’ ...... 1398 (iii) Findings ...... 1399 (iv) Elements of the Crime of Sexual Slavery...... 1400 (d) Count 9: Outrages Upon Personal Dignity (Article 3(e) of the Statute) ...... 1402 (i) Elements of the Crime ...... 1402 (ii) Findings ...... 1403 5. Counts 10 and 11: Crimes Relating to Physical Violence (Articles 3(a) and 2(i) of the Statute) ...... 1405 (a) Count 10 – Violence to Life, Health and Physical or Mental Well-Being of Persons, in Particular Mutilation ...... 1405 (i) Elements of the Crime of ‘Mutilation’ ...... 1405 (b) Count 11 – Other Inhumane Acts ...... 1405 6. Count 12: Crimes Relating to Child Soldiers (Article 4(c) of the Statute)...... 1406 (a) Elements of the Crime ...... 1407 (b) Submissions ...... 1407 (c) Findings ...... 1408 7. Count 13: Abductions and Forced Labour (Article 2(c) of the Statute)...... 1410 (a) Introduction ...... 1410 (b) Elements of the crime ...... 1411 8. Count 14: Pillage (Article 3(f) of the Statute)...... 1413 (a) Elements of the Crime ...... 1413 (b) Submissions ...... 1414 (c) Findings ...... 1415 D. Law on Individual Criminal Responsibility ...... 1415 1. Introduction ...... 1415 2. Individual Criminal Responsibility Pursuant to Article 6(1) of the Statute ...... 1416 (a) Committing ...... 1417 (b) Planning ...... 1417 (c) Instigating ...... 1418 (d) Ordering ...... 1419 (e) Aiding and abetting ...... 1420 (f) Participation in a Joint Criminal Enterprise ...... 1421 3. Individual Criminal Responsibility Pursuant to Article 6(3) of the Statute ...... 1421 (a) Elements of Superior Responsibility ...... 1421 (i) Existence of a Superior-Subordinate Relationship ...... 1422 (ii) Actual or Imputed Knowledge ...... 1424 1188 part iv

a. Actual Knowledge ...... 1424 b. Imputed Knowledge ...... 1425 (iii) Failure to Prevent or Punish ...... 1426 4. Relationship Between Article 6(1) and 6(3) of the Statute ...... 1427

X. FACTS AND FINDINGS ...... 1428 A. Unlawful Killings (Counts 3–5) ...... 1428 1. Allegations and Submissions ...... 1428 2. Evidence and Deliberations ...... 1429 (a) Bo District (1 June 1997 – 30 June 1997) ...... 1429 (i) Tikonko ...... 1429 (ii) Gerihun ...... 1431 (iii) Findings ...... 1433 (b) Kenema District (25 May 1997 – 19 February 1998) ...... 1433 (i) Kenema Town ...... 1433 (ii) Findings ...... 1436 (c) Kono District (14 February 1998 – 30 June 1998) ...... 1436 (i) Koidu ...... 1436 (ii) Tombodu ...... 1437 (iii) Mortema ...... 1438 (iv) Findings ...... 1438 (d) Kailahun District (14 February 1998 – 30 June 1998) ...... 1439 (i) Kailahun Town ...... 1439 (ii) Findings ...... 1440 (e) Koinadugu District (14 February 1998 – 30 September 1998) .....1440 (i) Kabala ...... 1441 (ii) Koinadugu Town ...... 1442 (iii) Fadugu ...... 1442 (iv) Findings ...... 1443 (f) Bombali District (1 May 1998 – 30 November 1998) ...... 1443 (i) Bornoya ...... 1443 (ii) Karina...... 1445 (iii) Mateboi ...... 1447 (iv) Gbendembu ...... 1447 (v) Findings ...... 1447 (g) Freetown and the Western Area (6 January 1999 – 28 February 1999) ...... 1447 (i) Freetown ...... 1448 a. East End Police ...... 1448 b. State House Area ...... 1448 c. Kingtom ...... 1452 d. Fourah Bay ...... 1452 e. Guard Street ...... 1454 judgments 1189

(ii) Kissy ...... 1454 a. Good Shepherd Hospital ...... 1454 b. Rogbalan Mosque ...... 1455 c. Kissy Mental Home ...... 1457 d. Rowe Street ...... 1458 e. Fatamaran Street ...... 1459 (iii) Calaba Town ...... 1459 (iv) Wellington ...... 1459 (v) Findings ...... 1459 (h) Port Loko District ...... 1460 (i) Manaarma ...... 1460 (ii) Nonkoba ...... 1462 (iii) Findings ...... 1462 B. Rape (Count 6) ...... 1463 1. Allegations and Submissions ...... 1463 2. Evidence and Deliberations ...... 1463 (a) Kono District (14 February 1998–30 June 1998) ...... 1463 (i) Koidu ...... 1464 (ii) Foendor / Foendu ...... 1464 (iii) Wondedu ...... 1465 (iv) Findings ...... 1466 (b) Koinadugu District (14 February 1998– 30 September 1998) ...... 1466 (i) Kabala ...... 1466 (ii) Koinadugu Town ...... 1467 (iii) Fadugu ...... 1474 (iv) Findings ...... 1475 (c) Bombali District (1 May 1998–30 November 1998) ...... 1475 (i) Rosos ...... 1476 (ii) Findings ...... 1479 (d) Freetown and Western Area (6 January 1999– 28 February 1999) ...... 1479 (i) State House ...... 1479 (ii) PWD ...... 1482 (iii) Greater Freetown ...... 1483 (iv) Findings ...... 1484 C. Outrages on Personal Dignity (Count 9) ...... 1484 1. Preliminary Remarks ...... 1484 2. Allegations and Submissions ...... 1485 3. Evidence of Witnesses TF1-094, DAB-156 and TF1-085 ...... 1485 (a) Prosecution Witness TF1-094 ...... 1486 (b) Defence Witness DAB-156 ...... 1488 (c) Prosecution Witness TF1-085 ...... 1488 1190 part iv

4. Evidence and Deliberations by District ...... 1492 (a) Kono District (14 February 1998–30 June 1998) ...... 1492 (i) Findings ...... 1493 (b) Koinadugu District (14 February 1998–30 September 1998) ...... 1494 (i) Findings ...... 1499 (c) Bombali District (1 May 1998–30 November 1998) ...... 1499 (i) Findings ...... 1501 (d) Kailahun (At all times relevant to the Indictment) ...... 1501 (i) Findings ...... 1502 (e) Freetown and Western Area (6 January 1999– 28 February 1999) ...... 1502 (i) Findings ...... 1507 (f) Port Loko District (February, 1999 – April, 1999) ...... 1507 (i) Findings ...... 1511 5. Findings ...... 1511 D. Physical Violence ...... 1512 1. Allegations and Submissions ...... 1512 2. Evidence and Deliberations ...... 1512 (a) Kenema District (25 May 1997 - 19 February 1998) ...... 1512 (i) Kenema Town ...... 1513 (ii) Finding...... 1514 (b) Kono District (14 February 1998–30 June 1998) ...... 1514 (i) Tombodu ...... 1514 (ii) Kaima/Kayima ...... 1515 (iii) Finding...... 1517 (c) Koinadugu District (14 February 1998–30 September 1998) ...... 1517 (i) Kabala ...... 1518 (ii) Findings ...... 1518 (d) Bombali District (1 May 1998–30 November 1998) ...... 1518 (i) Rosos ...... 1518 (e) Freetown and the Western Area (6 January 1999– 28 February 1999) ...... 1519 (i) Freetown ...... 1520 a. Upgun ...... 1520 b. Kissy Old Road ...... 1520 c. ‘Operation Cut Hand’ at PWD ...... 1520 (ii) Kissy ...... 1521 a. Rowe Street ...... 1521 b. Fatamaran Street ...... 1521 c. Old Road (Locust and Samuels area)...... 1521 d. Parsonage Street ...... 1521 e. Old Shell Road...... 1522 f. Kissy Mental Home ...... 1522 judgments 1191

(iii) Wellington ...... 1523 (iv) Findings ...... 1524 E. Child Soldiers ...... 1524 1. Allegations and Submissions ...... 1524 2. The Expert Witnesses ...... 1525 3. The Evidence of Former Child Soldiers ...... 1527 4. The Evidence of Other Witnesses ...... 1532 5. Findings ...... 1536 F. Abductions and Forced Labour (Count 13) ...... 1537 1. Allegations and Submissions ...... 1537 2. Findings ...... 1539 (a) Kenema District (about 1 August 1997 – about 31 January 1998) ...... 1539 (i) Tongo Field ...... 1539 (ii) Findings ...... 1545 (b) Kono District (about 14 February 1998 – January 2000) ...... 1545 (i) Tombodu ...... 1546 (ii) Koidu ...... 1549 (iii) Wondedu ...... 1550 (iv) Other locations in Kono District ...... 1550 (v) Findings ...... 1551 (c) Koinadugu District (about February 1998– 30 September 1998) ...... 1551 (i) Kabala ...... 1551 (ii) Kumala ...... 1552 (iii) Koinadugu ...... 1552 (iv) Other locations in Koinadugu District ...... 1553 (v) Findings ...... 1555 (d) Bombali District (about May 1998–31 November [sic] 1998) ...... 1555 (i) Journey to Rosos ...... 1556 (ii) Rosos ...... 1557 (iii) Findings ...... 1558 (e) Kailahun District (all times relevant to Indictment) ...... 1558 (i) May 1997 – February 1998 ...... 1558 (ii) February 1998 – January 2000 ...... 1559 (iii) Findings ...... 1560 (f) Freetown and the Western Area (6 January 1999– 28 February 1999) ...... 1560 (i) Freetown ...... 1561 (ii) Kissy ...... 1561 (iii) Calaba Town ...... 1562 (iv) Other locations in Freetown and Western Area ...... 1562 1192 part iv

(v) Findings ...... 1563 (g) Port Loko District (about February 1999) ...... 1563 (i) Other locations in Port Loko District ...... 1564 (ii) Findings ...... 1564 G. Count 14 (Pillage) ...... 1564 1. Allegations and Submissions ...... 1564 2. Evidence and Deliberations ...... 1565 (a) Bo District (1 June 1997–30 June 1997) ...... 1566 (b) Koinadugu District (14 February 1998– 30 September 1998) ...... 1566 (i) Kabala ...... 1566 (ii) Finding...... 1567 (c) Kono District (14 February 1998 - 30 June 1998) ...... 1567 (i) Tombodu ...... 1567 (ii) Yardu Sando ...... 1567 (iii) Findings ...... 1567 (d) Bombali District (1 March 1998–31 November 1998) ...... 1568 (e) Freetown and the Western area (6 January 1999– 28 February 1999) ...... 1568 (i) State House ...... 1568 (ii) Kissy ...... 1569 (iii) Findings ...... 1570 H. Acts of Terrorism (Count 1) and Collective Punishment (Count 2) ...... 1570 1. Allegations and Submissions ...... 1571 (a) Evidentiary basis ...... 1571 (b) Primary purpose ...... 1573 2. Evidence and Deliberations ...... 1574 (a) Primary purpose of certain acts of violence ...... 1574 (i) Child soldiers ...... 1574 (ii) Abductions and Forced Labour ...... 1576 (iii) Sexual Slavery ...... 1577 (iv) Physical Violence: Amputations ...... 1578 (b) Kenema District (25 May 1997–19 February 1998) ...... 1579 (i) Kenema Town ...... 1580 (ii) Findings ...... 1581 (c) Bo District (1 June 1997–30 June 1997) ...... 1581 (i) Tikonko ...... 1583 (ii) Gerihun ...... 1583 (iii) Findings ...... 1585 (d) Kailahun District (14 February 1998–30 June 1998) ...... 1586 (i) Kailahun Town ...... 1587 (ii) Findings ...... 1587 judgments 1193

(e) Kono District (14 February 1998–30 June 1998) ...... 1587 (i) Koidu Town ...... 1588 (ii) Tombodu ...... 1589 (iii) Yardu Sando ...... 1591 (iv) Findings ...... 1591 (f) Koinadugu District (14 February 1998–30 September 1998) ...... 1592 (i) Kabala, Fadugu, Koinadugu Town and Kurubonla ...... 1593 (ii) Findings ...... 1595 (g) Bombali District (1 May 1998–30 November 1998) ...... 1595 (i) Mansofĳinia (Koinadugu District) to Camp Rosos (Bombali District) ...... 1596 a. Mansofĳinia (Koinadugu District)...... 1597 b. Yaya (Kono District) ...... 1598 c. Kamagbengbeh (Bombali District) ...... 1598 d. Bornoya and Mateboi ...... 1598 e. Karina ...... 1599 f. Gbendembu ...... 1600 g. Rosos ...... 1601 (ii) Findings ...... 1601 (h) Freetown and Western Area (6 January 1999– 28 January 1999) ...... 1602 (i) State House ...... 1604 (ii) Kingtom ...... 1605 (iii) Fourah Bay ...... 1605 (iv) Kissy ...... 1606 a. Good Shepherd Hospital ...... 1606 b. Rogbalan Mosque ...... 1607 c. Old Shell Road...... 1607 d. Kissy Mental Home ...... 1608 e. Rowe Street ...... 1609 f. Fatamaran Street ...... 1609 g. Old Road (Locust and Samuels area)...... 1609 h. Parsonage Street ...... 1609 i. PWD ...... 1610 (v) Findings ...... 1610 (i) Port Loko District (13 February 1998 – June 1999) (January-April 1999) ...... 1611 (i) Attacks on the way to and from Gberi Bana ...... 1612 (ii) Manaarma ...... 1615 (iii) Nonkoba ...... 1615 (j) Finding ...... 1615 3. Finding on Count 1 ...... 1616 4. Finding on Count 2 ...... 1616 1194 part iv

XI. RESPONSIBILITY OF THE ACCUSED ...... 1617 A. Preliminary Remarks ...... 1617 B. The Accused Brima ...... 1618 1. Allegations in the Indictment ...... 1618 2. Bo, Kenema and Kailahun Districts ...... 1619 (a) Responsibility of the Accused Brima under Article 6(1) of the Statute ...... 1619 (i) Submissions ...... 1619 (ii) Findings ...... 1620 a. Committing ...... 1620 b. Ordering ...... 1620 c. Planning...... 1621 d. Instigating ...... 1621 e. Otherwise aiding and abetting ...... 1621 (b) Responsibility of the Accused Brima under Article 6(3) of the Statute ...... 1621 (i) Submissions ...... 1621 (ii) Findings ...... 1622 a. Existence of a superior-subordinate relationship ...... 1622 i. Bo District (1 – 30 June 1997) ...... 1625 ii. Kenema District (25 May 1997 – 19 February 1998) ...... 1625 iii. Kailahun District (27 May 1997 – 14 February 1998) ...... 1625 b. Findings ...... 1625 3. Kono District ...... 1626 (a) Responsibility of the Accused Brima under Article 6(1) ...... 1626 (i) Submissions ...... 1626 (ii) Findings ...... 1627 (b) Responsibility of the Accused Brima under Article 6(3) of the Statute ...... 1627 (i) Submissions ...... 1627 (ii) Findings ...... 1627 4. Kailahun District ...... 1628 (a) Responsibility of the Accused Brima under Article 6(1) of the Statute ...... 1628 (i) Submissions ...... 1628 (ii) Findings ...... 1629 (b) Responsibility of the Accused Brima under Article 6(3) of the Statute ...... 1629 (i) Submissions ...... 1629 (ii) Findings ...... 1629 judgments 1195

5. Koinadugu District ...... 1630 (a) Responsibility of the Accused Brima under Article 6(1) of the Statute ...... 1631 (i) Submissions ...... 1631 (ii) Findings ...... 1631 a. Committing ...... 1631 b. Ordering/Instigating ...... 1632 i. Order at Mansofĳinia to terrorise the civilian population ...... 1632 c. Planning and otherwise aiding and abetting ...... 1633 (b) Responsibility of the Accused Brima Under Article 6(3) of the Statute ...... 1633 (i) Submissions ...... 1633 (ii) Findings ...... 1633 6. Bombali District...... 1634 (a) Responsibility of the Accused Brima Under Article 6(1) of the Statute ...... 1634 (i) Submissions ...... 1634 (ii) Findings ...... 1635 a. Committing ...... 1635 i. Murder and Extermination at Karina ...... 1635 b. Ordering ...... 1637 i. Order to terrorise and kill the civilian population at Karina ...... 1637 ii. Order to terrorise the civilian population around Rosos...... 1638 iii. Order for killings at Mateboi and Gbendembu ...... 1638 iv. Order at Rosos to recruitment children for military purposes ...... 1639 c. Planning, Instigating and otherwise aiding and abetting ...... 1640 (b) Responsibility of the Accused Brima under Article 6(3) of the Statute ...... 1640 (i) Submissions ...... 1640 (ii) Findings ...... 1640 a. Existence of a superior-subordinate relationship ...... 1640 b. Actual or Imputed Knowledge ...... 1642 c. Failure to Prevent or Punish ...... 1643 (iii) Conclusion ...... 1645 7. Freetown and Western Area ...... 1645 (a) Responsibility of the Accused Brima under Article 6(1) of the Statute ...... 1645 1196 part iv

(i) Submissions ...... 1645 (ii) Findings ...... 1646 a. Committing ...... 1646 i. Killings of three persons at State House ...... 1646 ii. Killing of a soldier’s wife at the State House Area ...... 1648 iii. Unlawful killings at Kissy Mental Home/Portee area ...... 1649 iv. Unlawful killings in the Wellington area ...... 1649 v. Amputation of a civilian’s hand at Old Road area ...... 1650 b. Ordering/Instigating ...... 1651 i. Order to kill civilians in Fourah Bay area ...... 1651 ii. Orders to terrorise and collectively punish the civilian population ...... 1651 iii. Orders to kill collaborators ...... 1654 iv. Order to loot UN Vehicles and civilian property .....1654 v. Order to kill 14 captive Nigerian ECOMOG soldiers at State House ...... 1654 vi. Order to kill three nuns at Kissy Mental Home ...... 1655 vii. Order to massacre civilians in Rogbalan Mosque ...1655 viii. Order to abduct and enslave civilians including child soldiers ...... 1656 c. Planning...... 1657 d. Otherwise aiding and abetting ...... 1657 (b) Responsibility of the Accused Brima Under Article 6(3) of the Statute ...... 1657 (i) Submissions ...... 1657 (ii) Findings ...... 1658 a. Existence of a superior-subordinate relationship ...... 1658 b. Actual or Imputed Knowledge ...... 1662 c. Failure to prevent or punish ...... 1662 (iii) Conclusion ...... 1663 8. Port Loko District ...... 1663 (a) Responsibility of the Accused Brima under Article 6(1) of the Statute ...... 1663 (i) Submissions ...... 1663 (ii) Findings ...... 1663 (b) Responsibility of the Accused Brima Under Article 6(3) of the Statute ...... 1663 (i) Submissions ...... 1663 (ii) Findings ...... 1664 (iii) Conclusion ...... 1664 judgments 1197

9. Responsibility for Crimes of Enslavement, Sexual Slavery and Child Soldiers ...... 1665 (a) Responsibility under Article 6(1) for Count 9 (Outrages on Personal Dignity) ...... 1668 (b) Responsibility under Article 6(1) for Count 12 (Child Soldiers) ...... 1668 (c) Responsibility under Article 6(1) for Count 13 (Enslavement) ...... 1669 (d) Responsibility under Article 6(3) for Counts 9, 12 and 13 ...... 1669 C. The Accused Kamara ...... 1669 1. Allegations in the Indictment ...... 1669 2. Bo, Kenema and Kailahun Districts (25 May 1997– 14 February 1998) ...... 1670 (a) Responsibility of the Accused Kamara Under Article 6(1) of the Statute ...... 1671 (i) Submissions ...... 1671 (ii) Findings ...... 1671 (b) Responsibility of the Accused Kamara Under Article 6(3) of the Statute ...... 1671 (i) Submissions ...... 1671 (ii) Findings ...... 1672 a. Existence of a superior-subordinate relationship...... 1672 b. Conclusion ...... 1673 3. Kono District ...... 1673 (a) Responsibility of the Accused Kamara Under Article 6(1) of the Statute ...... 1673 (i) Submissions ...... 1673 (ii) Findings ...... 1674 (b) Responsibility of the Accused Kamara Under Article 6(3) of the Statute ...... 1675 (i) Submissions ...... 1675 (ii) Findings ...... 1675 a. Existence of a superior-subordinate relationship...... 1675 b. Actual or Imputed Knowledge ...... 1681 c. Failure to prevent or punish ...... 1681 (iii) Conclusion ...... 1682 4. Kailahun District ...... 1682 (a) Responsibility of the Accused Kamara Under Article 6(1) of the Statute ...... 1682 (i) Submissions ...... 1682 (ii) Findings ...... 1682 1198 part iv

(b) Responsibility of the Accused Kamara Under Article 6(3) of the Statute ...... 1683 (i) Submissions ...... 1683 (ii) Findings ...... 1683 5. Koinadugu District ...... 1683 (a) Responsibility of the Accused Kamara under Article 6(1) of the Statute ...... 1684 (i) Submissions ...... 1684 (ii) Findings ...... 1684 (b) Responsibility of the Accused Kamara under Article 6(3) ...... 1684 (i) Submissions ...... 1684 (ii) Findings ...... 1684 6. Bombali District...... 1685 (a) Responsibility of the Accused Kamara Under Article 6(1) of the Statute ...... 1685 (i) Submissions ...... 1685 (ii) Findings ...... 1686 a. Committing ...... 1686 b. Ordering ...... 1686 c. Planning...... 1686 d. Instigating and otherwise Aiding and Abetting ...... 1687 (b) Responsibility of the Accused Kamara under Article 6(3) of the Statute ...... 1687 (i) Submissions ...... 1687 (ii) Findings ...... 1687 a. Existence of a superior-subordinate relationship ...... 1687 7. Freetown and the Western Area ...... 1689 (a) Responsibility of the Accused Kamara Under Article 6(1) of the Statute ...... 1689 (i) Submissions ...... 1689 (ii) Findings ...... 1690 a. Committing ...... 1690 i. Killings of civilians in the Fourah Bay Area ...... 1690 ii. Killings of civilians at Wellington ...... 1690 b. Ordering, Planning and Instigating ...... 1690 c. Otherwise aiding and abetting ...... 1691 i. Killings of civilians in Fourah Bay ...... 1691 ii. “Operation Cut Hand” in Freetown ...... 1691 (b) Responsibility of the Accused Kamara Under Article 6(3) of the Statute ...... 1691 (i) Submissions ...... 1691 judgments 1199

(ii) Findings ...... 1692 a. Existence of a superior-subordinate relationship ...... 1692 b. Knowledge and failure to prevent or punish ...... 1693 c. Conclusion ...... 1693 8. Port Loko District ...... 1693 (a) Responsibility of the Accused Kamara Under Article 6(1) of the Statute ...... 1693 (i) Submissions ...... 1693 (ii) Findings ...... 1694 (b) Responsibility of the Accused Kamara Under Article 6(3) of the Statute ...... 1694 (i) Submissions ...... 1694 (ii) Findings ...... 1694 a. Existence of a superior-subordinate relationship ...... 1694 b. Actual or Imputed Knowledge ...... 1696 c. Failure to prevent or punish ...... 1696 d. Conclusion ...... 1697 9. Responsibility of the Accused Kamara for Crimes of Enslavement ...... 1697 (a) Responsibility Under Article 6(1) of the Statute ...... 1697 (b) Responsibility Under Article 6(3) of the Statute ...... 1697 (i) Kono District ...... 1697 (ii) Port Loko District ...... 1698 D. The Accused Kanu ...... 1698 1. Allegations in the Indictment ...... 1698 2. Bo, Kenema and Kailahun Districts ...... 1700 (a) Responsibility of the Accused Kanu Under Article 6(1) of the Statute ...... 1700 (i) Submissions ...... 1700 (ii) Findings ...... 1701 a. Committing and Ordering ...... 1701 b. Planning...... 1701 c. Instigating ...... 1701 d. Otherwise aiding and abetting ...... 1701 (b) Responsibility of the Accused Kanu Under Article 6(3) of the Statute ...... 1702 (i) Submissions ...... 1702 (ii) Findings ...... 1702 3. Kono District ...... 1703 (a) Responsibility of the Accused Kanu Under Article 6(1) of the Statute ...... 1703 1200 part iv

(i) Submissions ...... 1703 (ii) Findings ...... 1703 (b) Responsibility of the Accused Kanu Under Article 6(3) of the Statute ...... 1704 (i) Submissions ...... 1704 (ii) Findings ...... 1704 4. Kailahun District ...... 1705 (a) Responsibility of the Accused Kanu Under Article 6(1) of the Statute ...... 1705 (i) Submissions ...... 1705 (ii) Findings ...... 1705 (b) Responsibility of the Accused Kanu Under Article 6(3) of the Statute ...... 1705 (i) Submissions ...... 1705 (ii) Findings ...... 1705 5. Koinadugu District ...... 1706 (a) Responsibility of the Accused Kanu Under Article 6(1) of the Statute ...... 1706 (i) Submissions ...... 1706 (ii) Findings ...... 1707 (b) Responsibility of the Accused Kanu Under Article 6(3) of the Statute ...... 1707 (i) Submissions ...... 1707 (ii) Findings ...... 1707 6. Bombali District...... 1708 (a) Responsibility of the Accused Kanu Under Article 6(1) of the Statute ...... 1708 (i) Submissions ...... 1708 (ii) Findings ...... 1709 a. Committing/Ordering ...... 1709 b. Planning...... 1709 c. Instigating ...... 1709 d. Otherwise aiding and abetting ...... 1709 (b) Responsibility of the Accused Kanu Under Article 6(3) of the Statute ...... 1709 (i) Submissions ...... 1709 (ii) Findings ...... 1710 a. Existence of a superior-subordinate relationship...... 1710 b. Actual or Imputed Knowledge and Failure to Prevent or Punish ...... 1711 c. Conclusion ...... 1712 judgments 1201

7. Freetown and the Western Area ...... 1712 (a) Responsibility of the Accused Kanu under Article 6(1) of the Statute ...... 1712 (i) Submissions ...... 1712 (ii) Findings ...... 1713 a. Committing ...... 1713 i. Fourah Bay: The killing of civilians ...... 1713 ii. Kissy Road: “Demonstration” of an amputation to the troops ...... 1714 iii. Upgun: “Demonstration” of an amputation on a civilian ...... 1714 iv. State House: Looting of vehicles ...... 1715 b. Ordering ...... 1715 i. Order at State House to kill captive Nigerian ECOMOG soldiers ...... 1715 ii. Order to kill civilians at a mosque in Kissy ...... 1715 iii. Order to commit amputations in Eastern Freetown ...... 1716 c. Planning...... 1716 d. Instigating ...... 1717 e. Otherwise aiding and abetting ...... 1717 (b) Responsibility of the Accused Kanu Under Article 6(3) of the Statute ...... 1717 (i) Submissions ...... 1717 (ii) Findings ...... 1717 a. Existence of a superior-subordinate relationship...... 1717 b. Knowledge ...... 1720 c. Failure to prevent or punish ...... 1720 d. Conclusion ...... 1720 8. Port Loko District ...... 1720 (a) Responsibility of the Accused Kanu Under Article 6(1) of the Statute ...... 1720 (i) Submissions ...... 1720 (ii) Findings ...... 1721 (b) Responsibility of the Accused Kanu Under Article 6(3) of the Statute ...... 1721 (i) Submissions ...... 1721 (ii) Findings ...... 1721 9. Responsibility for Crimes of Enslavement under Article 6(1) ...... 1721 (a) Responsibility under Article 6(1) for Count 9 (Sexual Slavery) ...... 1723 1202 part iv

(b) Responsibility under Article 6(1) for Count 12 (Child Soldiers) ...... 1723 (c) Responsibility under Article 6(1) for Count 13 (Enslavement) ...... 1723

XII. CUMULATIVE CONVICTIONS ...... 1724 A. Introduction ...... 1724 B. Submissions of the Parties ...... 1724 C. Discussion ...... 1725

XIII. DISPOSITION ...... 1728 A. The Accused Brima ...... 1728 B. The Accused Kamara ...... 1729 C. The Accused Kanu ...... 1730

SEPARATE CONCURRING OPINION OF THE HON. JUSTICE JULIA SEBUTINDE APPENDED TO JUDGEMENT PURSUANT TO RULE 88(C) ...... 1732 A. Introduction ...... 1732 B. Procedural History ...... 1732 C. Expert Opinion on “Forced Marriage ...... 1735 1. Drawing a distinction between early or arranged marriages of minors in peacetime and ‘forced marriage’ during armed conflict ...... 1735 2. Characterisation of ‘forced marriage’ during armed conflict as a crime under International Humanitarian law ...... 1737 D. Conclusion ...... 1738

PARTLY DISSENTING OPINION OF JUSTICE DOHERTY ON COUNT 7 (SEXUAL SLAVERY) AND COUNT 8 (‘FORCED MARRIAGES’) ...... 1740 A. Count 7 ...... 1740 B. Count 8 ...... 1742 1. Submissions of the Parties ...... 1742 (a) The perpetrator inflicted great sufffering, or serious injury to body or to mental or physical health, by means of an inhumane act; ...... 1743 (b) The act was of a gravity similar to the acts referred to in Article 2(a) to (h) of the Statute; ...... 1743 (c) The perpetrator was aware of the factual circumstances that established the character or gravity of the act; ...... 1743 (d) The act was committed as part of a widespread or systematic attack directed against a civilian population; and ...... 1743 judgments 1203

(e) The perpetrator knew or had reason to know that his acts or omissions constituted part of a widespread or systematic attack directed against a civilian population...... 1743 2. Expert Evidence ...... 1744 3. Witness Evidence ...... 1746 4. Forced Marriages as a Crime against Humanity ...... 1750 5. Non-Criminal International Treaties ...... 1751 6. Decisions of Other Tribunals ...... 1752 7. Deliberations ...... 1752 8. Conclusion ...... 1753 ANNEX A: PROCEDURAL HISTORY ...... 1754 A. Indictment, Arrest, Transfer and Initial Appearance ...... 1754 1. Alex Tamba Brima ...... 1754 2. Brima Bazzy Kamara ...... 1754 3. Santigie Kanu ...... 1754 B. Pre-Trial Proceedings ...... 1755 1. Joinder ...... 1755 2. Trial Chamber Composition ...... 1756 3. History of Indictments ...... 1756 4. Assignment of Counsel ...... 1758 (a) The Accused Brima and Kamara ...... 1758 (b) The Accused Kanu ...... 1759 5. Bail ...... 1759 6. Habeas Corpus ...... 1760 7. Preliminary Motions ...... 1761 (a) Constitutionality ...... 1761 (b) Kamara challenge to jurisdiction: Lomé Accord Amnesty ...... 1762 (c) Kanu motion challenging jurisdiction and alleging abuse of process ...... 1763 8. Disclosure Matters ...... 1764 9. Protective Measures for Witnesses ...... 1767 10. Pre-trial Briefs and Agreed Facts ...... 1769 11. Pre-Trial Case Management ...... 1770 C. Trial Proceedings ...... 1770 1. Overview ...... 1770 2. Evidentiary Issues ...... 1770 (a) Disclosure ...... 1770 (b) Judicial Notice ...... 1772 (c) Admission of Documentary Evidence ...... 1772 (d) Protective Measures and Matters not Subject to Disclosure ...... 1772 (e) Counsel Issues ...... 1773 3. Rule 98 Decision ...... 1774 1204 part iv

ANNEX B: GLOSSARY ...... 1775 D. List of Abbreviations, Acronyms and Short References...... 1775 E. List of Cases ...... 1777 1. Special Court ...... 1777 2. ICTY ...... 1779 3. ICTR ...... 1782 4. Domestic Decisions ...... 1784 5. Others ...... 1784 F. Main Actors in the Conflict...... 1785

ANNEX C: MAP OF SIERRA LEONE ...... 1786 judgments 1205

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 Leone2 pursuant to UN Security Council Resolution 1315 (2000) of 14 August 2000.3 The Special Court is governed by its Statute4 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

1 Article 1(1) of the Statute of the Special Court for Sierra Leone. 2 Agreement Between the United Nations and the Government of Sierra Leone on the Establishment of a Special Court for Sierra Leone, signed on 16 January 2002. 3 U.N. Doc. S/RES/1315 (2000). 4 Statute of the Special Court for Sierra Leone, annexed to the Agreement. 5 The Rules of Procedure and Evidence of the Special Court for Sierra Leone, fĳirst adopted by the Plenary of Judges on 16 January 2002 and subsequently amended on 7 March 2003; 1 August 2003; 30 October 2003; 14 March 2004; 29 May 2004; 14 May 2005; 13 May 2006 and 24 November 2006. Rule 1 provides for their entry into force, efffective from 12 April 2002. 6 Statute, Article 2. 7 Statute, Article 3. 8 Statute, Article 4. 9 Statute, Article 5. 10 Prosecutor v. Brima, SCSL-03-06-I, Indictment (Annexes: Prosecutor’s Memo to Accom- pany Indictment, Investigator’s Statement, Draft Order Confĳirming Indictment), 7 March 2003; 1206 part iv

5. On 27 January 2004, having ordered a joint trial of the Accused Brima, Kamara and Kanu, Trial Chamber I ordered the Prosecution to fĳile two consolidated indictments and that new case numbers be assigned to the two joint cases.11 On 5 February 2004, the Prosecution fĳiled 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(i) of the Statute for acts of “forced marriage.” Moreover, the Prosecution moved for other modifĳications 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 fĳiled on 18 February 2005. 10. The Prosecution case-in-chief commenced on 7 March 2005 and closed on 21 November 2005. The Prosecution called 59 witnesses. The Defence case-in-chief started on 5 June 2006 and fĳinished on 26 October 2006. Final briefs were fĳiled on 1 December 2006 and Closing Arguments were heard on 7 and 8 December 2006. The Trial Chamber sat 176 trial days.

Prosecutor v. Kamara, SCSL-03-10-PT, Prosecutor’s Memorandum to Accompany the Indictment, 26 May 2003; Prosecutor v. Kanu, SCSL-03-13-PT, Indictment, 15 September 2003. 11 Id., Corrigendum – Decision and Order on Prosecution Motion for Joinder, 28 January 2004. See also Prosecutor v. Brima, Kamara and Kanu, SCSL-2004-16-PT, Decision for the Assignment of a New Case Number, 3 February 2004. 12 Prosecutor v. Brima, Kamara and Kanu, SCSL-2004-16-PT, Indictment, 5 February 2004. 13 Prosecutor v. Brima, Kamara and Kanu, SCSL-2004-16-PT, Request for Leave to Amend the Indictment, 9 February 2004. 14 Prosecutor v. Brima, Kamara and Kanu, SCSL-2004-16-PT, Decision on Prosecution Request for Leave to Amend the Indictment, 6 May 2004; see also id., Consequential Order and Corrigendum to the Decision on the Prosecution Request for Leave to Amend the Indictment, 12 May 2004. 15 Order Assigning a Case to the Trial Chamber, SCSL-2004-16-PT, 17 January 2005. 16 Prosecutor v. Brima, Kamara and Kanu, SCSL-2004-16-PT, Decision on the Prosecution Application to Further Amend the Amended Consolidated Indictment by Withdrawing Counts 15–18, 15 February 2005 and Corrigendum to Decision on the Prosecution Application to Further Amend the Amended Consolidated Indictment by Withdrawing Counts 15–18, 15 February 2005. judgments 1207

C. The Accused 11. According to the Prosecution Alex Tamba Brima was born on 23 November 1971 in the village of Yarya in Kono District.17 Brima claims that he was born at Wilberforce Village in Freetown. The Accused also denies that his fĳirst 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 Stafff 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 Stafff 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, 9, 10, and 14 respectively). 15. In addition, all three Accused are charged with an “other serious violation of international humanitarian law,” namely with conscripting or enlisting children

17 Indictment, para. 1 18 Brima Pre-Trial Brief, para. 5. 19 Brima Final Brief, para. 19, Brima Pre-Trial Brief, para. 6. 20 The Prosecution assert that the Accused was born in 1968 (Indictment, para. 3), while Kamara states that he was born in 1970 (Kamara Pre-Trial Brief, para. 7). 21 Kamara Pre-Trial Brief, para. 7–9. 22 Indictment, paras. 5–6. 1208 part iv 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 fĳighting 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. judgments 1209

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 Indictments26 20. All Accused were initially individually charged. The initial indictment against Brima was approved on 7 March 2003,27 Kamara’s on 28 May 200328 and Kanu’s on 6 September 2003.29 The indictments were later consolidated,30 amended31 and further amended.32 21. Only the Kanu and Kamara Defence fĳiled timely motions pursuant to Rule 72(B)(ii) of the Rules. A preliminary motion fĳiled by the Accused Brima less

23 Brima Final Brief, paras. 126–156; Kamara Final Brief, paras. 89–103; Kanu Final Brief, paras. 291–292. 24 Prosecutor v. Brima, Kamara, Kanu, SCSL-04-16-PT, Decision and Order on Defence Preliminary Motion on Defects in the Form of the Indictment, 1 April 2004 (“Kamara Form of the Indictment Decision”); Prosecutor v. Santigie Borbor Kanu, Case No. SCSL-2003-13-PT, Decision and Order on Defence Preliminary Motion for Defects in the Form of the Indictment, 19 November 2003 (“Kanu Form of the Indictment Decision”). 25 Prosecution Closing Argument, Transcript 7 December 2006, pp. 57–59, referring to Brđanin Trial Judgement, para. 48; see also Prosecution List of Authorities Referred to in Oral Closing Submissions, 25 January 2006, point 1. 26 For a detailed procedural history of the Indictments see Annex B of the Judgement. 27 Prosecutor v. Brima, SCSL-03-06-I, Decision Approving the Indictment and Order for Non- Disclosure, 7 March 2003. 28 Prosecutor v. Kamara, SCSL-2003-10-PT, Decision Approving the Indictment, the Warrant of Arrest, and Order for Non-Disclosure, 28 May 2003. 29 Prosecutor v. Kanu, SCSL-2003-13-I, Decision Approving the Indictment, the Warrant of Arrest and Order for Transfer and Detention and Order for Non-Public Disclosure, 16 September 2003. 30 Prosecutor v. Brima, Kamara and Kanu, SCSL-2004-16-PT, Indictment, 5 February 2004. 31 Prosecutor v. Brima, Kamara and Kanu, SCSL-2004-16-PT, Amended Consolidated Indictment, 13 May 2004; see Prosecutor v. Brima, Kamara and Kanu, SCSL-2004-16-PT, Decision on Prosecution Request for Leave to Amend the Indictment, 6 May 2004; see also id., Consequential Order and Corrigendum to the Decision on the Prosecution Request for Leave to Amend the Indictment, 12 May 2004. 32 Prosecutor v. Brima, Kamara and Kanu, SCSL-2004-16-PT, Further Amended Consolidated Indictment, 5 February 2004; see Prosecutor v. Brima, Kamara and Kanu, SCSL-2004-16-PT, Decision on the Prosecution Application to Further Amend the Amended Consolidated Indictment by Withdrawing Counts 15–18, 15 February 2005 and Corrigendum to Decision on the Prosecution Application to Further Amend the Amended Consolidated Indictment by Withdrawing Counts 15–18, 15 February 2005. 1210 part iv 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 specifĳicity of the initial indictment regarding diffferent 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 specifĳicity 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, pursuant to Rule 72(B)(ii), the Pre-Trial Brief, the Motion for Judgement of Acquittal and the Final Brief. The Trial Chamber further notes that the Rules do not affford a right to appeal a decision pursuant to Rule 72(B)(ii), once a Trial Chamber has decided on such a motion.39 The Trial Chamber is not precluded from reviewing in this Judgement whether shortcomings in the form of the

33 Prosecutor v. Brima, Kamara, Kanu, Decision on the Defence Motion for Defects in the Indictment, 2 March 2005. 34 Kanu Form of the Indictment Decision, para. 7, p. 10. 35 Kamara Form of the Indictment Decision, para. 34, p. 24. 36 Brima Pre-Trial Brief, paras. 28–29. 37 Kupreškić Appeal Judgement, para. 79; see also Rule 98 Decision, para. 323. 38 Prosecutor v. Hadžihasanović et al., Case No. IT-01-47-AR73.3, Decision on Joint Defence Interlocutory Appeal of Trial Chamber Decision on Rule 98bis Motions for Acquittal, 11 March 2005, para. 10. 39 Rule 72(D) of the Rules. judgments 1211

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 clarifĳication 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 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 specifĳies that an “indictment shall contain, and be sufffĳicient if it contains, the name and particulars of the suspect, a statement of each specifĳic offfence of which the named suspect is charged and a short description of the particulars of the offfence.” 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

40 Precedent exists to consider the form of an indictment at the judgement stage: see Prosecutor v. Laurent Semanza, Case No. ICTR-97-20-T, Judgement, 15 May 2003 (“Semanza Trial Judgement”), paras. 41–62; Prosecutor v. Jean Mpambara, Case No. ICTR-01-65-T, Judgement, 11 September 2006 (“Mpambara Trial Judgement”), paras. 28–35; Prosecutor v. André Ntagerura, Emmanuel Bagambiki, Samuel Imanishimwe, Case No. ICTR-99-46-T, Judgement, 25 February 2004 (“Cyangugu Trial Judgement”), paras. 28–70; Emmanuel Ndindabahizi, Case No. ICTR-2001-71-T, Judgement, 15 July 2004 (“Ndindabahizi Trial Judgement”), paras. 28–29; Prosecutor v. Elizaphan Ntakirutimana and Gérard Ntakirutimana, Case No. ICTR-96-10 and ICTR-96-17-T, Judgement, 21 February 2003 (“Ntakirutimana Trial Judgement”), paras. 49–63; see also Prosecutor v. Sesay, Kallon, Gbao, SCSL-04- 15-PT, Transcript 25 October 2006, p. 8 (Oral Decision on Motion for Judgement of Acquittal). 41 Prosecutor v. Stanislav Galić, Case No. IT-98-29-AR73, Decision on Application by Prosecution for Leave to Appeal, 14 December 2001, para. 13; Kajelijeli Appeal Judgement, paras. 203 and 204; Cyangugu Appeal Judgement, para. 55. 42 Prosecutor v. Aloys Simba, Case No. ICTR-2001-76-T, Judgement, 13 December 2005 (“Simba Trial Judgement”), paras. 14–40; Kamara Form of the Indictment Decision, para. 47. 43 See Semanza Trial Judgement, para. 42. 1212 part iv 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 specifĳicity 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 fĳirst 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

44 Prosecutor v. Blaškić, Case No. IT-95-14-A, Judgement, 29 July 2004 (“Blaškić Appeal Judgement”), para. 209 (citing Prosecutor v. Kupreškić, Kupreškić, Kupreškić, Josipović, and Šantić, Case No. IT-95- 16-A, Judgement, 23 October 2001 (“Kupreškić et al. Appeal Judgement”), para. 88); Simba Trial Judgement, para. 14. 45 Kupreškić Appeal Judgement, paras. 89, 90. 46 Blaškić Appeal Judgement, para. 210; Rutaganda Appeal Judgement, para. 304. 47 Blaškić Appeal Judgement, para. 210, referring to Prosecutor v. Mrkšić et al., Case No.: IT-95- 13/1-PT, Decision on Form of Consolidated Amended Indictment and on Prosecution Application to Amend, 23 January 2004 (“Mrkšić 23 January 2004 Decision”), para. 52; Prosecutor v. Brđanin and Talić, Case No.: IT-99-36-PT, Decision on Objections by Radoslav Brđanin to the Form of the Amended Indictment, 23 Feb. 2001 (“Brđanin and Talić 23 February 2001 Decision”), para. 13. 48 Blaškić Appeal Judgement, para. 210, referring to Brđanin and Talić 23 February 2001 Decision, para. 10; Mrkšić 23 January 2004 Decision, para. 8. 49 Prosecutor v. Deronjić, Case No.: IT-02-61-PT, Decision on Form of the Indictment, 25 October 2002. judgments 1213 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 law53 and the sufffĳiciency of the evidence54 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 specifĳic 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:

50 Blaškić Appeal Judgement, para. 213, referring to Prosecutor v. Tadić, Case No.: IT-94-1-T, Decision on the Defence Motion on the Form of the Indictment, 14 November 1995, paras. 11–13. 51 Kupreškić Appeal Judgement, paras. 89, 90, stating that “[s]uch 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 identifĳied 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). 52 Blaškić Appeal Judgement, para. 216, referring to Prosecutor v. Krnojelac, Case No. IT-97-25-PT, Decision on the Defence Preliminary Motion on the Form of the Indictment, 24 February 1999, paras. 38, 40. 53 See, e.g., Brima Final Brief, paras. 146–152 regarding Counts 7 and 8 of the Indictment. 54 See, e.g., Kanu Final Brief, paras. 295, 299–301, 302–314, 316–323, 325–363 with regard to JCE; and Kamara Final Brief, paras. 61–67 with regard to the existence of a superior-subordinate relationship for the purposes of responsibility under Article 6(3) of the Statute. 55 Brima Final Brief, paras. 131–133, 138. 1214 part iv

The Trial Chamber […] fĳinds no merit in the allegations for the following reasons. […] [T]here is no applicable magical formula as to the degree of specifĳicity 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 fĳinding 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 specifĳicity 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 identifĳied 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 fĳinding of guilt for

56 Kamara Form of the Indictment Decision, para. 46 (footnotes omitted). 57 Kupreškić Appeal Judgement, para. 89–90. 58 See paras. 2–3 supra. 59 Such evidence has been considered for the “General Requirements of Articles 2, 3 and 4 of the Statute” where appropriate, see Rule 98 Decision, para. 19. judgments 1215 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 unidentifĳied crimes in other locations are being charged as well.62 38. In light of the above, the Trial Chamber will not make any fĳinding on crimes perpetrated in locations not specifĳically 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) Offfences of a Continuous Nature 39. The Trial Chamber notes that with regard to the prolonged offfences or offfences 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 specifĳied 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

60 Rule 98 Decision, para. 19, 20; Brđanin Trial Judgement, para. 397. 61 Prosecutor v. Norman, Case No. SCSL-04-14-AR73, Decision on Amendment of Consolidated Indictment, 16 May 2005, para. 82. 62 Brđanin Trial Judgement, para. 397; Prosecutor v. Brđanin, Decision for Motion of Acquittal, 28 November 2003, para. 88, referring to Stakić Trial Judgement, para. 772; Trial Chamber I in the instant case came to a similar fĳinding, Prosecutor v. Kanu, Decision and Order on Defence Preliminary Motion for Defects in the Form of the Indictment, 19 November 2003, para. 17; Kamara Form of the Indictment Decision, para. 42. 63 Rule 98 Decision, paras. 19, 20; see also Brđanin Trial Judgement, para. 397. 1216 part iv often on the move between villages and Districts for a signifĳicant period of time, may make pleading particular locations difffĳicult. 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 signifĳicant 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 specifĳically objected to the lack of specifĳicity 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 suf- fĳicient precision the acts which the Accused Brima allegedly committed in person.64 43. The Trial Chamber observes that the preliminary motions fĳiled by the Kamara and Kanu Defence before the commencement of trial only generally complained of a lack of specifĳicity in pleading individual criminal responsibility pursuant to Article 6(1) of the Statute, but they did not specifĳically assert that the particulars are insufffĳicient 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:

64 Brima Final Brief, para. 133. See also Kamara Final Brief, para. 91, where a general objection against lack of specifĳicity in pleading modes of liability pursuant to Article 6(1) is launched. 65 Kanu Form of the Indictment Decision, para. 7; Kamara Form of the Indictment Decision, paras. 47–50, referring to Prosecutor v. Allieu Kondewa, Case No. SCSL-03-13-PT, Decision and Order on Defence Preliminary Motion for Defects in the Form of the Indictment, 19 November 2003, para. 10, where it was held that “whether the Accused, for example, ‘planned,’ or ‘instigated,’ or ‘ordered,’ the commission of any of the crimes specifĳied in Articles 2 to 4 of the Statute is, in the Chamber’s view, pre-eminently an evidentiary matter, the key determinant of the success or failure of the Prosecution’s case” (emphasis added). 66 Kamara Form of the Indictment Decision, para. 44. judgments 1217

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 associate 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 question 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 specifĳically, 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 sufffĳicient specifĳicity, a Trial Chamber must consider whether the accused was nonetheless accorded a fair trial.74 Where an accused has

67 Prosecution Opening Statement, Transcript 7 March 2005, p. 41. 68 Blaškić Appeal Judgement, para. 213, referring to Prosecutor v. Tadić, Case No.: IT-94-1-T, Decision on the Defence Motion on the Form of the Indictment, 14 November 1995, paras. 11–13. 69 Kvočka Appeal Judgement, para. 33. 70 See Kamuhanda Appeal Judgement, para. 17, and Kupreškić Appeal Judgement, para. 88. 71 Kamuhanda Appeal Judgement, para. 17, referring to Kupreškić Appeal Judgement, para. 89. 72 Ndindabahizi Appeal Judgement, para.16; Ntakirutimana Appeal Judgement, para. 25 quoting Kupreskic et al. Appeal Judgement, para. 89. 73 Ntakirutimana Appeal Judgement, para. 32, quoting Kupreškić et al. Appeal Judgement, para. 89. 74 Kvočka Appeal Judgement, para. 33; Kupreškić Appeal Judgement, paras. 115–123. 1218 part iv 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 insufffĳicient 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 sufffĳicient 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 sufffĳicient 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 fĳinal trial briefs and closing arguments may assist in assessing whether the accused was sufffĳi- ciently put on notice to respond to the allegations by the Prosecution.81 In case of a lack of notice, the Defence must raise a specifĳic 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 fĳinding 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 specifĳic objection at the time the evidence is introduced. The Defence may also choose to fĳile a timely motion to strike the evidence or to seek an adjournment

75 Muhimana Appeal Judgement, para. 217 quoting Gacumbtsi Appeal Judgement, para. 49; Ntakirutimana Appeal Judgement, para. 27, referring to Kupreskic et al. Appeal Judgement, para. 114; see also Ntagerura et al. Appeal Judgement, paras. 28, 65. 76 Kvočka Appeal Judgement, para. 33; Kupreškić Appeal Judgement, para. 114. 77 Kordić Appeal Judgement, para. 142; Rutaganda Appeal Judgement, para. 303. 78 Naletilić Appeal Judgement, para. 27. 79 Naletilić Appeal Judgement, para. 27, referring to Rule 65ter(E)(ii) of the ICTY Rules of Procedure and Evidence, which has no equivalent in the Special Court’s Rules; Gacumbtsi Appeal Judgement, paras. 57–58 quoting Naletilić Appeal Judgement, para. 45. 80 Naletilić Appeal Judgement, para. 27. 81 Kvočka Appeal Judgement, paras. 52, 53; Kordić Appeal Judgement, para. 148; Naletilić Appeal Judgement, para. 27. 82 Kamuhanda Appeal Judgement, para. 21, referring to Niyitegeka Appeal Judgement, para. 199. judgments 1219

to conduct further investigations in order to respond to the unpleaded allegation. […]83 [emphasis added] The Trial Chamber therefore fĳinds 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 sufffĳiciently 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 sufffĳicient detail; (ii) If the Indictment does not provide sufffĳicient 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 sufffĳiciently 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 specifĳication, 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 signifĳi- cant amount of evidence in the course of trial which personally implicates all three Accused.86

83 Niyitegeka Appeal Judgement, para. 199. 84 Kayishema Appeal Judgement, para. 91; Ntakirutimana Appeal Judgement, para. 52. 85 Indictment, para. 35 [emphasis added]. 86 See Responsibility of the Accused, infra. 1220 part iv

53. The Trial Chamber fĳinds that this manner of pleading in the Indictment cannot sufffĳice to put the Accused on notice that they 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 fĳinding 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 specifĳic 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 diffferent forms; (2) legal submissions; and (3) evidentiary submissions. The Trial Chamber will only consider submissions falling into the fĳirst 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 specifĳic 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 specifĳically 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

87 See Transcript 7 March 2005, p. 41: “[T]he accused persons, because of their station and rank, were not always the ones on the ground pulling the trigger” (emphasis added). 88 Prosecutor v. Brima, Kamara, Kanu, SCSL-2004-16-PT, Material Filed Pursuant to Order to the Prosecution to File Disclosure Materials and Other Materials in Preparation for the Commencement of Trial, 1 April 2004, 26 April 2004. 89 Indictment, para. 33. 90 Kamara Final Brief, para. 46. judgments 1221 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 structur- ally 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

91 Kamara Final Brief, para. 47 (emphasis in the original); see also Brima Final Brief, para. 59. 92 Prosecution Final Brief, para. 469. 93 Prosecution Closing Arguments, 7 December 2007, p. 71. 94 Kamara Final Brief, paras. 41, 45. 95 Prosecution Closing Argument, Transcript 7 December 2006, para. 71. 96 Kanu Final Brief, paras. 288–290. 97 Brđanin Trial Judgement, para. 355. 98 Prosecution Final Brief, paras. 468, 473, citing, in addition to two irrelevant paragraphs of the Brđanin and Tadić Trial Judgements at fn. 756, Blagojević Trial Judgement, paras. 700–701. 1222 part iv

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 identifĳied by the ICTY Appeals Chamber in Tadić: 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 efffecting this common design (and even if each co-perpetrator carries out a diffferent 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, efffected 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 efffecting 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 offfences 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 efffecting 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 efffect “ethnic cleansing”) with the consequence that, in the course of doing so, one or more of the victims is shot and killed. While

99 Tadić Appeal Judgement, para. 190; Vasiljević Appeal Judgement, para. 95; Stakić Appeal Judgement, para. 62; Prosecutor v. Milan Milutinović, Nikola Šainović and Dragoljub Ojdanić, Case No. IT-99-37-AR72, Decision on Dragoljub Ojdanić’s Motion Challenging Jurisdiction-Joint Criminal Enterprise, 21 May 2003 (“Ojdanić Decision”), paras. 20, 43. 100 Tadić Appeal Judgement, para. 196. 101 Tadić Appeal Judgement, para. 202. judgments 1223

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 indiffferent 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 efffect 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 specifĳic 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 offfences charged constitute material facts and must be pleaded in the indictment.105 Each of the material facts

102 Tadić Appeal Judgement, para. 204. 103 Kvočka Appeal Judgement, paras. 28, 42; Gacumbitsi Appeal Judgement, para. 162. 104 Rule 98 Decision, paras. 310–311, referring to Tadić Appeal Judgement, para. 227; see also Prosecution Final Brief, para. 466; Kanu Final Brief, para. 302. 105 Prosecutor v. Hadžihasanović et al., Case No. IT-01-47-PT, Decision on Form of Indictment, 7 December 2001 (“Hadžihasanović Indictment Decision”), para. 10. 1224 part iv must usually be pleaded expressly, although it may be sufffĳicient 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 sufffĳicient particulars regarding the criminal nature of the purpose of the alleged joint criminal enterprise.108 Trial Chamber I dismissed that application, fĳinding 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

106 Hadžihasanović Indictment Decision, para. 10; Prosecutor v. Brđanin and Talić, Case No. IT-99- 36-PT, Decisions on Objections by Momir Talić to the Form of the Amended Indictment, 20 February 2001, para. 48; Prosecutor v. Brđanin and Talić, Case No. IT-99-36-PT, Decisions on Form of Fourth Amended Indictment, 23 November 2001, para. 12. 107 Hadžihasanović Indictment Decision, para. 10; Prosecutor v. Brđanin and Talić, Case No. IT-99- 36-PT, Decisions on Objections by Momir Talić to the Form of the Amended Indictment, 20 February 2001, para. 48. 108 See Kamara Form of the Indictment Decision, para. 51. 109 These paragraphs were referred to in the Kamara Form of the Indictment Decision, para. 52, as “paragraphs 23–24,” which was their numbering in the previous Consolidated Indictment. 110 See Kamara Form of the Indictment Decision, para. 52. 111 Prosecutor v. Kallon and Kamara, Case No. SCSL-2004-15-AR72(E)/ SCSL-2004-16-AR72(E), Decisions on Challenge to Jurisdiction: Lomé Accord Amnesty (“Lomé Amnesty Decision”), para. 20, referring to M. N. Shaw, International Law (5th ed., 2003) p. 1040. judgments 1225

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- Serb 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 fĳirst 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.

112 Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-PT, Sixth Amended Indictment, para. 27.1. 113 Prosecutor v. Momčilo Krajišnik, Case No. IT-00-39 & 40-PT, Consolidated Amended Indictment, para. 4. 114 Prosecutor v. Milomir Stakić, Case. IT-97-24-PT, Fourth Amended Indictment, para. 26. 115 Krajišnik Trial Chamber, 883, referring to Tadić Appeal Judgement, para. 227. 116 Prosecutor v. Mitar Vasiljević, Case No. IT-98-32-T, Judgement, 29 November 2002 (“Vasiljević Trial Judgement”), para. 66. 1226 part iv

71. There are considerable difffĳiculties 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, must 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

117 Kamara Form of the Indictment Decision, para. 52. 118 Indictment, para. 34. 119 These concepts are usually referred to in international armed conflict, but are equally applicable in non-international armed conflict as it is recognised that every state has the right to use force in order to preserve its territorial integrity and to crush a rebellion and Resolutions of the General Assembly (e.g. 1514 (XV) 1960, 2621 (XXV) 1970, 2625 (XXV) 1970, 2674 (XXV) 1970, 2852 (XXVI) 1971 and 3103 (XXVIII) 1973) recognise the right to self determination (see Frainçois Bugnion, “Jus ad Bellum, Jus in Bello and Non-International Armed Conflict,” Yearbook of International Humanitarian Law, T.M.C. Asser Press, Vol. VI, 2003, pp. 167–198. 120 Kvočka Trial Judgement, para. 189. 121 Krajišnik Trial Chamber, 883, referring to Tadić Appeal Judgement, para. 227. judgments 1227

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 difffĳiculties. 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 fĳighting the RUF since 1991, the coalition between the two factions following the 1997 coup was not one based on longstanding common interests. Both factions offfĳicially declared that they were joining forces to bring peace and political stability to Sierra Leone.124 On 18 June 1997, the RUF issued an offfĳicial 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 difffĳiculty 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

122 Vasiljević Appeal Judgement, para. 99: “a common purpose which amounts to or involves the commission of a crime provided for in the Statute is required […]” (emphasis added). 123 Gibril Massaquoi, Transcript 7 October 2005, pp. 46–47; exhibit P-54, Amnesty International, Sierra Leone, 1998 – A Year of Atrocities against Civilians,” p. CMS 15799. 124 Exhibit P-77, “Address by Major Johnny Paul Koroma, Head of State and Chairman of the Armed Forces Revolutionary Council, Freetown, 1 June 1997.” 125 Exhibit P-61, “Revolutionary United Front’s Apology to the Nation,” delivered on SLBS radio, 18 June 1997. 1228 part iv existed.” The indictment fails to provide a specifĳic 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 diffferent 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 fĳirst 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 fĳirst 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 diffferent 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 fulfĳil the purpose of exercising power and control. But at the same time it is clear that the purpose has changed and that efffectively the allegations may have involved a new or diffferent 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 diffferent purposes

126 The Trial Chamber does not consider that “at all times relevant to the Indictment” in para. 32 refers to the JCE between the RUF and AFRC in para. 33. 127 Blagojević Trial Judgement, paras. 700–701 (footnotes omitted). 128 The Trial Chamber notes that the Indictment does not mention an JCE between the AFRC inter se as para. 33 states: “The AFRC […] and the RUF […] 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.” [emphasis added]. judgments 1229 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 suf- fĳiciently 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 specifĳically identifĳied 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 specifĳically objected to the pleading of the JCE in the Indictment.131 83. The Prosecution has submitted that the issue of specifĳicity in the pleadings of JCE has already been litigated at the pre-trial stage and that the sufffĳiciency 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 sufffĳiciently 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

129 Prosecution Closing Arguments, Transcript 7 December 2006, pp. 71–72. 130 Krnojelac Appeal Judgement, para. 138. 131 In its Pre-Trial Brief the Prosecution merely repeated the wording of the Indictment without further clarifĳication and simply referred to the three categories of JCE, see Pre-Trial Brief, para. 209. Restating the law is not clear and consistent notice to the Defence. 132 Prosecution Final Brief, para. 464. 133 Rule 98 Decision, para. 323. 134 Prosecutor v. Stanislav Galić, Case No. IT-98-29-AR73, Decision on Application by Prosecution for Leave to Appeal, 14 December 2001, at para. 13. 135 See Prosecution Final Trial Brief, paras. 460–497; Prosecution Closing Arguments, Transcript 7 December 2006, pp. 70–71; SCSL-04-16-608, Prosecution List of Authorities Referred to in Oral Closing Submissions, 25 January 2007, item 6. 1230 part iv

85. For these reasons, the Trial Chamber fĳinds 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 fĳinds 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:

136 Brima Final Brief, paras. 135–136. 137 Kamara Form of the Indictment Decision, para. 55(iv). 138 Paras. 28–64 of the initial Indictment against the Accused Kamara, referred to in the Kamara Form of the Indictment Decision, para. 55(iv), correspond to paras. 41–79 in the Indictment. 139 Brima Final Brief, paras. 143–144; Kamara Final Brief, para. 92, referring to Prosecutor v. Kanyabashi, Case No. ICTR-96-15-I, Decision on Defence Preliminary Motion for Defects in the Form of the Indictment, 31 May 2000, paras. 5.11 and 5.23; but see Prosecution Closing Argument, Transcript 7 December 2006, p. 8. 140 Brima Final Brief, para. 129. judgments 1231

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 fĳinds 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 “offfends the rule against duplicity” as the Accused are charged with two separate offfences 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

141 Kamara Form of the Indictment Decision, para. 33(xii) (footnote omitted). 142 Brima Final Brief, paras. 146–149; Kamara Final Brief, paras. 94–96, 239; both submissions rely on the Separate Concurring Opinion of Justice Julia Sebutinde to the Trial Chamber’s Rule 98 Decision, paras. 3–9. 143 Brđanin Trial Judgement, para. 48, citing the Kupreskic Appeal Judgement, para. 70 144 Cyangugu Appeal Judgement, para. 50; Kajelijeli Appeal Judgement, paras. 203–204. 145 Rule 98 Decision, “Separate Concurring Opinion of Hon. Justice Julia Sebutinde.” 146 Rule 98 Decision, “Separate Concurring Opinion of Hon. Justice Julia Sebutinde,” para. 8. 1232 part iv dividing the offfences 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 confĳined 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 difffĳicult 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 fĳinds that Count 7 is bad for duplicity and is accordingly dismissed in its entirety.150

147 Rule 98 Decision, “Separate Concurring Opinion of Hon. Justice Julia Sebutinde,” paras. 8, 9. 148 See Rule 98 Decision, para. 163. 149 Brima Final Brief, para. 149; Kamara Final Brief, para. 96. 150 Justice Doherty dissenting. judgments 1233

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 fĳinding of guilt may be reached only when a majority of the Trial Chamber is satisfĳied 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 satisfĳied, 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

151 Rule 89(A) provides that “[t]he rules of evidence set forth in this Section shall govern the proceedings before the Chambers…” The Section referred to is Section 3 (“Rules of Evidence”) of Part VI (“Proceedings Before Trial Chambers”) and the rules of evidence referred to are contained in Rules 89 to 98. 152 This provision is in accordance with all major human rights instruments, see International Covenant on Civil and Political Rights, Art. 14(2); African (Banjul) Charter on Human and Peoples’ Rights, Article 7(1)(b). 153 See Prosecutor v. Zejnil Delalić, Zdravko Mucić aka “Pavo,” Hazim Delić aka “Zenga” and Esad Landžo, Case No. IT-96-21-A, Judgement, 20 February 2001 (“Čelebići Appeal Judgement”), para. 458. 1234 part iv

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 insufffĳi- cient to establish a fact, their cumulative efffect may be revealing and decisive.159 Therefore, it is “no derogation of evidence to say that it is circumstantial.”160

154 Rule 89(C) is thus diffferent from its counterpart in the ICTY Rules, which provides that “[a] Chamber may admit any relevant evidence which it deems to have probative value” (emphasis added). 155 Prosecutor v. Moinina Fofana, Case No. SCSL-04-14-AR65, Fofana – Appeal Against Decision Refusing Bail, 11 March 2005 (“Fofana Bail Decision”), para. 26; Prosecutor v. Brima, Kamara, Kanu, Case No. SCSL-04-16-T, Decision on Joint Defence Motion to Exclude all Evidence from Witness TF1- 277 Pursuant to Rule 89(C) and/or Rule 95, para. 14; Oral Decision, Transcript 6 July 2005, pp. 44–46; Oral Decision, Transcript 29 June 2006, pp. 77, 78. 156 Prosecutor v. Blagojević and Jokić, Case No. IT-02-60, Judgement, 17 January 2005 (“Blagojević Trial Judgement”), para. 21; Prosecutor v. Zlatko Aleksovski, Case No. IT-95-14/1-AR73, Decision on Prosecutor’s Appeal on Admissibility of Evidence, 16 February 1999, para. 14. See also Prosecutor v. Brima, Kamara, Kanu, Case No. SCSL-04-16-T, Decision on Joint Defence Motion to Exclude all Evidence from Witness TF1-277 Pursuant to Rule 89(C) and/or Rule 95, para. 24. 157 Prosecutor v. Moinina Fofana, Case No.SCSL-2004-14-AR73, Fofana – Decision on Appeal Against “Decision on Prosecution’s Motion for Judicial Notice and Admission of Evidence,” Separate Opinion of Justice Robertson, 16 May 2005, para. 6. See also Prosecutor v. Krnojelac, Case No. IT-97- 25-T, Judgement, 15 March 2002 (“Krnojelac Trial Judgement”), para. 70; Prosecutor v. Zlatko Aleksovski, Case No. IT-95-14/1-AR73, Decision on Prosecutor’s Appeal on Admissibility of Evidence, 16 February 1999, para. 15. 158 Brđanin Trial Judgement, para. 35; Blagojević Trial Judgement, para. 21. 159 Čelibići Appeal Judgment, para. 458. 160 Prosecutor v. Orić, IT-03-68-T, Order Concerning Guidelines on Evidence and the Conduct of Parties During Trial Proceedings, p. 7, referring to Taylor, Weaver and Donovan (1928) 21 Cr. App. R. 20, 21, per Lord Hewart C.J. judgments 1235

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 Defence161 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 afffĳirmation 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).

161 This includes the Accused Alex Tamba Brima who gave evidence in his own defence. 162 Gilbert Morrisette, Chief of Investigations at the Special Court for Sierra Leone, was called in order to provide background information with regard to exhibit D-39. 163 Rule 71 deals with evidence by deposition. 1236 part iv

(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 sufffĳiciently 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 testifĳied 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 disqualifĳied 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 offfence 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 efffective 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 testifĳied, 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

164 Blagojević Trial Judgement, para. 23. 165 Prosecutor v. Halilović, Case No. IT-01-48-T, Judgement, 16 November 2005 (“Halilović Trial Judgement”), para. 17. judgments 1237

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 horrifĳic events in which they personally sufffered 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 afffected 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

166 Tadić Appeal Judgement, para. 65; Aleksovski Appeal Judgement, para. 62; Kupreškić Appeal Judgement, para. 33. 167 Limaj Trial Judgement, para. 21; Brđanin Trial Judgement, para. 27. 168 Kupreškić Appeal Judgement, para. 31. 169 Ibid. 170 See Čelebići Appeal Judgement, para. 496. 171 Limaj Trial Judgement, para. 15. 1238 part iv 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, afffected 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:

172 Brđanin Trial Judgement, para. 26. 173 Krnojelac Trial Judgement, para. 69. judgments 1239

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 diffferently, 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 fĳinding 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

174 Rule 98 Decision, para. 25. 175 Prosecutor v. Vasiljević, Case No. IT-98-32-T, Judgement, 29 November 2002 (“Vasiljević Trial Judgement”), para. 13; Limaj Trial Judgement, para. 22. 176 Simić Trial Judgement, para. 18; Blagojević Trial Judgement, para. 20. 177 Vasiljević Trial Judgement, para. 15; Čelebići Appeal Judgement, para. 581. 178 Vasiljević Trial Judgement, fn. 7. 179 Limaj Trial Judgement, para. 11. 1240 part iv

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 notifĳication 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 notifĳication 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

180 SCSL-04-16-PT-145, Defence Pre Trial Brief for Tamba Alex Brima, 17 February 2005, para. 11: “The Prosecution has asserted that Tamba Brima was ‘in direct control of AFRC/RUF forces in Kono District.’ This is denied by the Accused. For the reasons given elsewhere in this pre-trial brief the Accused could not have been in command of any forces. In any event, the Defence will seek to call evidence, if required, to show that Mr. Brima was held in custody by the RUF between February and July 1998. Accordingly it is submitted that he had an alibi for the period relating to the allegations.”; para. 28(e): “[…] the Defence will rely on alibi or partial alibi in that it is asserted that the Accused was placed under arrest by the RUF in Kailahun in mid February 1998 and that he was incarcerated until around 8 July 1998 whereupon he fled and stayed with family until October 1998. He will assert that he was not engaged in any operations or hostilities during that time.” 181 Prosecutor v. Brima, Kamara, Kanu, SCSL-04-16-T, Decision on Prosecution Motion for Relief in Respect of Violations of Rule 67, 26 July 2006. The notice of alibi was not fĳiled until 3 August 2006 in compliance with an Order in the mentioned decision, see SCSL-04-16-T-526, Confĳidential Brima Defence Alibi Notice pursuant to Article 67(A)(ii) of the Rules of Procedure and Evidence, 3 August 2006. 182 Rule 67(B) provides: “Failure of the defence to provide such notice under this Rule shall not limit the right of the accused to rely on the above defences.” 183 Prosecutor v. Brima, Kamara, Kanu, SCSL-04-16-T, Decision on Prosecution Motion for Relief in Respect of Violations of Rule 67, 26 July 2006, para. 18 (Footnotes omitted). judgments 1241

(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 court184 or in domestic crimes,185 or that they were informants to the police,186 or admitted taking drugs.187 The Brima Defence specifĳically 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 insufffĳicient 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 fĳinancial incentives190 or the promise of relocation to another country.191 127. With regard to alleged ‘fĳinancial 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

184 George Johnson, Transcript 20 September 2005, p. 78. 185 George Johnson, Transcript 21 September 2005, pp. 70, 71. 186 Brima Final Brief, para. 200; George Johnson, Transcript 19 September 2005, pp. 34–35. 187 George Johnson, Transcript 19 September 2005, p. 37. 188 Brima Final Brief, para. 199. 189 Kordić Trial Judgement, paras. 628–629. 190 Cross-examination of witness TF1-282, Transcript 14 April 2005, pp. 14–26; see also Brima Final Brief, para.188. 191 Cross-examination of witness George Johnson, Transcript 19 September 2005, pp. 30–31. 1242 part iv

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 satisfĳied 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,

192 Practice Direction on Allowances for Witnesses and Expert Witnesses, Article 2(D). 193 Prosecutor v. Brima, Kamara, Kanu, Case No. SCSL16-04-16-T, Decision on Kanu Motion to Disclose Prosecution Material and/or other Information Pertaining to Rewards to Prosecution Trial Witnesses and Brima’s Motion in Support, 16 March 2005. 194 Exhibit D-6, “All Disbursements for Witness” (confĳidential); exhibit P-23a, “Interofffĳice Memorandum – Witness Payment Policy – Payments made to TF1-004”; exhibit D-6, “All Disbursements for Witness.” 195 Statute, Article 16(4) and Rule 34 of the Rules; see also witness George Johnson, Transcript 19 September 2005, pp. 34, 35; the witness complained: “I’m presently under threat,” and “My life is at stake, I just have to be protected well.” 196 Prosecution Trial Brief, para. 63. 197 Rule 90(H)(ii) of the ICTY Rules of Procedure and Evidence and Rule 90(G)(ii) of the ICTR Rules of Procedure and Evidence provide that “[i]n the cross-examination of a witness who is able to give evidence relevant to the case for the cross-examining party, counsel shall put to that witness the nature of the case of the party for whom that counsel appears which is in contradiction of the evidence given by the witness.” judgments 1243

without the benefĳit 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 benefĳit 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 confĳirmation. (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 efffect of Rule 92bis was held by the Appeals Chamber to be as follows: SCSL Rule 92bis is diffferent to the equivalent Rule in the ICTY and ICTR and deliberately so. The judges of this Court, at one of their fĳirst 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 efffect of the SCSL Rule is to permit the reception

198 Prosecutor v. Kajelijeli, Case No. ICTR-98-44A-A, Judgement, 23 May 2005, para. 26. 199 Defence Closing Arguments, (Mr. Manly-Spain for the Accused Kanu), Transcript 8 December 2006, pp. 34–35. 1244 part iv

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 confĳirmation.” 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, specifĳically those tendered by the Prosecution originating from the website www.sierra-leone.org.204 The Defence argued that the website did not originate

200 Prosecutor v. Norman, Kondewa, Fofana, Case No. SCSL-04-14-AR73, Fofana – Decision on Appeal against ‘Decision on Prosecution’s Motion for Judicial Notice and Admission of Evidence,” 16 May 2005, para. 26. 201 Prosecutor v. Brima, Kamara, Kanu, Case No. SCSL-04-16-PT, Decision on the Prosecution Motion for Judicial Notice and Admission of Evidence, 25 October 2005, para. 70; see also Prosecutor v. Brima, Kamara, Kanu, Case No. SCSL-04-16-T, Decision on Prosecution Tender for Admission into Evidence of Information Contained in Notice Pursuant to Rule 92bis, 18 November 2005. 202 Prosecutor v. Brima, Kamara, Kanu, Case No. SCSL-04-16-T, Decision on Prosecution Motion for Judicial Notice and Admission of Evidence, 25 October 2005, para. 75 referring to Prosecutor v. Moinina Fofana, Case No.SCSL-2004-14-AR73, Fofana – Decision on Appeal Against “Decision on Prosecution’s Motion for Judicial Notice and Admission of Evidence,” Separate Opinion of Justice Robertson, 16 May 2005, para. 30; see as well Prosecutor v. Brima, Kamara, Kanu, Case No. SCSL-04- 16-T, Decision on Prosecution Tender for Admission into Evidence of Information Contained in Notice Pursuant to Rule 92bis, 18 November 2005, Annex A. 203 Fofana Bail Decision, para. 24. 204 See Exhibit P-53, “Statement on the historic return to Freetown, Sierra Leone, of the Leaders of the Alliance of the Revolutionary United Front of Sierra Leone and the Armed Forces Revolutionary Council, 3 October 1999”; Exhibit P-60, “Personal Statement by Lt. JP Koroma on 1 October 1999”; Exhibit P-61, “Revolutionary United Front’s Apology to the Nation - delivered on SLBS, 18 June 1997”; Exhibit P-77, “Address by Major Johnny Paul Koroma, Head of State and Chairman of the Armed Forces Revolutionary Council, Freetown, 1 June 1997.” judgments 1245 from a government or a respected non-governmental organisation, and that the actual source and its authenticity could not be verifĳied.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 tran- scribed 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

205 SCSL-04-16-T-430, Joint Defence Objections to the Prosecution Notice Pursuant to Rule 92bis to Admit Information into Evidence, 15 November 2005, paras. 36, 37. 206 Transcript 16 May 2005, p. 50; Transcript 7 October 2005, p. 61. 207 See Exhibit P-73, “SLBS Radio Broadcast - 25 May 1997, 18:42 GMT”; exhibit P-74, “SLBS Radio Broadcast, 25 May 1997, 19:30 GMT”; exhibit P-75, “SLBS Radio Broadcast, 29 May 15:26 GMT”; exhibit P-76, “SLBS Radio Broadcast, 30 May 19:22 GMT,” exhibit P-53, “Statement on the historic return to Freetown, Sierra Leone, of the Leaders of the Alliance of the Revolutionary United Front of Sierra Leone and the Armed Forces Revolutionary Council, 3 October 1999”; exhibit P-60, “Personal Statement by Lt. JP Koroma on 1 October 1999”; exhibit P-61, “Revolutionary United Front’s Apology to the Nation - delivered on SLBS, 18 June 1997”; exhibit P-77, “Address by Major Johnny Paul Koroma, Head of State and Chairman of the Armed Forces Revolutionary Council, Freetown, 1 June 1997.” 208 SCSL-04-16-T-430, Joint Defence Objections to the Prosecution Notice Pursuant to Rule 92bis to Admit Information into Evidence, 15 November 2005, paras. 36, 37. 209 Transcript 7 October 2005, p. 61. 210 The exhibits concerned are Exhibit P-73, “SLBS Radio Broadcast - 25 May 1997, 18:42 GMT”; exhibit P-74, “SLBS Radio Broadcast, 25 May 1997, 19:30 GMT”; exhibit P-75, “SLBS Radio Broadcast, 29 May 15:26 GMT”; exhibit P-76, “SLBS Radio Broadcast, 30 May 19:22 GMT.” 211 Transcript 29 June 2006, pp. 47, 48. 212 Transcript 29 June 2006, p. 48. 1246 part iv 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 (confes- sional 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 certifĳicate 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 fĳiled 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 fĳiling of the statement of the expert witness, the opposing party shall fĳile 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. judgments 1247

149. The Trial Chamber heard the testimony of fĳive expert witnesses, three for the Prosecution213 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 fĳindings 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 fĳindings.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.

213 Expert witnesses called by the Prosecution: (1) Mrs. Zainab Bangura: Exhibit P-31, “Curriculum Vitae of Mrs. Zainab Bangura”; exhibit P-32, “Expert Report of on phenomenon of ‘forced marriages’ in the context of the conflict in Sierra Leone and, more specifĳically, in the context of the trials against the RUF and AFRC Accused only,” May 2005., prepared by Zainab Bangura and Christina T. Solomon; (2) TF1-296: Exhibit P-33, “Report on the Situation in Relation to Children with the Fighting Forces” (confĳidential); (3) Colonel Richard Iron: Exhibit P-35, “Curriculum Vitae of Colonel Richard Iron”; exhibit P-36, “Military Expert Witness Report on the Armed Forces Revolutionary Council (AFRC) of Sierra Leone,” August 2005. 214 Expert witnesses called by the Defence: (1) Major General (retired) W. A. J. Prins: Exhibit D-36, “Military Expert Report on the Armed Forces Revolutionary Council Faction,” July 2006; (2) Dr. Dorte Thorsen: Exhibit D-38, “Expertise on West Africa in Case before the Special Court for Sierra Leone,” 26 July 2006. 215 SCSL-04-16-572, Notice of Acceptance of the Expert Report on Child Soldiers by Mr. Gbla, 18 October 2006; exhibit P-37, “The Use of Child Soldiers in the Sierra Leone Conflict,” 11 October 2006. 216 Vasiljević Trial Judgement, para. 20; Orić Trial Judgement, paras. 59–71; Prosecutor v. Galić, Case No. IT-98-29-T, Decision on the Expert Witness Statement Submitted by the Defence, 27 January 2003, p. 3. 217 See Oral Decision, Transcript 12 October 2005, pp. 42, 43; Transcript 13 October 2005, p. 2; Oral Decision, Transcript 14 October 2005, pp. 38, 39; Oral Decision, Transcript 24 October, pp. 110, 112: “[The Trial Chamber] shall disregard any material which in [the Trial Chamber’s] judgment goes to the ultimate issue or provides opinions on matters upon which the Trial Chamber is going to have to rule, or draws any conclusions or inferences which the Trial Chamber will have to draw, or makes any judgments which the Trial Chamber will have to make.” 1248 part iv

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

218 See Prosecutor v. Brima, Kanu and Kamara, SCSL-2004-16-PT-28, Prosecutor’s Request to Admit, 4 March 2004; SCSL-16-04-PT-35, [Brima]-Defence Response to Prosecutor’s Request to Admit, 18 March 2004; SCSL-16-04-PT-160, [Brima]-Defence Response to Prosecutors [sic] Request to Admit, 2 March 2005; SCSL-16-04-PT-37, Kanu-Defence’s Response to Prosecution Request to Admit, 19 March 2004; SCSL-16-04-PT-165, Kanu-Defence Additional Response to Prosecution Request to Admit, 4 March 2005; SCSL-16-04-PT-173, Kamara-Defence Response to Prosecutor’s Request to Admit, 7 March 2005. 219 See also Rule 92 of the Rules (“Confessions”) which has however a diffferent scope of applicability. 220 Simić Trial Judgement, para. 21; Blagojević Trial Judgement, para. 28; Halilović Trial Judgement, para. 20. judgments 1249

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

221 Prosecution v. Norman, Fofana, Kondewa, SCSL-2004-14-AR73, Appeals Chamber, Fofana – Decision on Appeal against Decision on Prosecution Motion for Judicial Notice and Admission of Evidence (“Fofana Judicial Notie Appeal Decision”), 16 May 2005, Fact A. 222 Gibril Massaquoi, Transcript 7 October 2005, p. 11. 223 Decision on the Prosecution Motion for Judicial Notice and Admission of Evidence, 25 October 2005, [hereinafter “Judicial Notice Decision”], Fact E. 224 Exhibit P-57, No Peace Without Justice, “Conflict Mapping Program,” 9 March 2004 [hereinafter “NPWJ Report”] CMS p. 16362. 225 Exhibit P-57, NPWJ Report, CMS p. 16393. 226 Exhibit P-57, NPWJ Report, CMS pp. 16132, 16197. 227 Exhibit P-57, NPWJ Report, CMS p. 16210. 228 Exhibit P-57, NPWJ Report, CMS p. 16331. 1250 part iv 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 offfĳicer 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

229 Exhibit P-57, NPWJ Report, CMS p. 16210; George Johnson, Transcript 15 September 2005, p. 6; Transcript 19 September 2005, pp. 11, 109. 230 Exhibit P-57, NPWJ Report, CMS p. 15928. 231 Exhibit P-63, “Peace Agreement between the Government of the Republic of Sierra Leone and the Revolutionary United Front of Sierra Leone,” 30 November 1996 [hereinafter “Abidjan Peace Accord”]; Judicial Notice Decision, Fact G. 232 Exhibit P-63, Abidjan Peace Accord, CMS p. 16510. 233 Judicial Notice Decision, Fact H. 234 Gibril Massaquoi, Transcript 7 October 2005, pp. 32–33. 235 Judicial Notice Decision, Fact I. judgments 1251 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 plotters237 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 offfer and RUF fĳighters 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 fĳighters, 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

236 Exhibit P-57, NPWJ Report, CMS p. 15761. 237 Exhibit P-57, NPWJ Report, CMS p. 16011. 238 Judicial Notice Decision, Fact J. Throughout the transcripts, the parties and witnesses refer to the AFRC troops interchangeably as “Juntas,” “soldiers,” “SLAs,” “ex-SLAs,” “People’s Party” and “rebels.” The Trial Chamber uses the term ‘AFRC’ throughout the judgement, although it refers on occasion to members of the AFRC as ‘former soldiers’ or ‘renegade soldiers.’ 239 Exhibit P-57, NPWJ Report, CMS p. 15910. 240 Exhibit P-4, “Proclamation of the AFRC Government,” 28 May 1997. 241 George Johnson, Transcript 15 September 2005, p. 18. 242 TF1-334, Transcript 16 May 2005, pp. 92–93. 243 TF1-004, Transcript 23 June 2005, pp. 8, 35–36, 96–99. 244 TF1-004, Transcript 23 June 2005, pp. 8, 35–36, 96–99. 245 TF1-062, Transcript 27 June 2005, pp. 9, 15, 42, 53; TF1-045, Transcript 19 July 2005, pp. 32, 79; George Johnson, Transcript 19 September 2005, p. 55; DAB-147, Transcript 3 October 2006, p. 27; TF1- 122, Transcript 24 June 2005, p. 5. 1252 part iv 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 fĳighting the RUF since 1991, the coalition between the two factions following the 1997 coup was not based on longstanding common interests. Both factions offfĳicially declared that they were joining forces to bring peace and political stability to Sierra Leone.249 On 18 June 1997, the RUF issued an offfĳicial 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 opera- tions251 and organised joint effforts 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

246 TF1-062, Transcript 27 June 2005, p. 3; TF1-122, Transcript 24 June 2005, p. 71; TF1-122, Transcript 24 June 2005, p. 7. 247 Exhibit P-57, NPWJ Report, CMS p. 15910–15911. 248 See Exhibit P-30(a), “Map of Sierra Leone.” 249 Exhibit P-77, “Address by Major Johnny Paul Koroma, Head of State and Chairman of the Armed Forces Revolutionary Council, Freetown, 1 June 1997.” 250 Exhibit P-61, “Revolutionary United Front’s Apology to the Nation,” delivered on SLBS radio, 18 June 1997. 251 Gibril Massaquoi, Transcript 7 October 2005, pp. 83, 86, 93–94; TF1-045, Transcript 19 July 2005, pp. 57–66; George Johnson, Transcript 15 September 2005, p. 23; TF1-334, Transcript 17 May 2005, p. 56; Exhibit P-34, “Minutes of an Emergency Council Meeting of the AFRC Held at State House on Monday 11th August 1997”; Exhibit P-48, “Sierra Leone Humanitarian Situation Report 04, 5 June 1997”; Exhibit P-49, “United Nations Department of Humanitarian Afffairs, Situation Report, 8–14 July 1997,” CMS pp. 15688–15689. 252 TF1-334, Transcript 17 May 2005, pp. 55–56; Gibril Massaquoi, Transcript 7 October 2005, pp. 72–73; TF1-045, Transcript 19 July 2005, pp. 64–75. 253 TF1-045, Transcript 19 July 2005, pp. 57–62; TF1-045, 21 July 2005, pp. 27–31; Gibril Massaquoi, Transcript 11 October 2005, p. 53. judgments 1253 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 Bo257 and Kenema258 Districts and also cooperated with regards to diamond mining, a critical government resource.259 However, as in Freetown, the relationship began to deteriorate260 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 fĳight.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

254 TF1-045, Transcript 22 July 2005, pp. 42–45; Gibril Massaquoi, Transcript 7 October 2005, pp. 108–109. 255 TF1-334, Transcript 17 May 2005, pp. 58, 69; George Johnson, Transcript 19 September 2005, p. 54–55. 256 TF1-334, Transcript 17 May 2005, p. 57; Gibril Massaquoi, Transcript 11 October 2005, p. 53; DAB- 142, Transcript 19 September 2006, pp. 12–13, 16 (although the witness refers to the year 1987, the Trial Chamber is satisfĳied that he was describing events that took place in 1997); DBK-129, Transcript 9 October 2006, p. 63. 257 Exhibit P-66, U.S. Department of State, “Sierra Leone Country Report on Human Rights Practises for 1997,” CMS p. 16528; TF1-004, Transcript 23 June 2005, pp. 96–99 testifying about crimes committed in the village of Tikonko; TF1-054, Transcript 19 April 2005, pp. 87–95 testifying about the killing of Paramount Chief Demby by ‘soldiers,’ two of whom, at least, were known SLAs; TF1-053, Transcript 18 April 2005, pp. 104–107, saying that he saw ‘soldiers’ enter Chief Demby’s house just before he heard shots. 258 Gibril Massaquoi, Transcript 7 October 2005, pp. 106–107; TF1-062, Transcript 27 June 2005, pp. 15–16, 20–21, 26. TF1-122, Transcript 24 June 2005, pp. 35–49, 71–72; DAB-033, Transcript 25 September 2006, p. 43. 259 TF1-062, Transcript 27 June 2005, pp. 11–15, 20–25; TF1-045, Transcript 19 July 2005, pp. 35–37. 260 DBK-063, Transcript 2 August 2006, p. 24. 261 DAB-033, Transcript 25 September 2006, pp. 43, who believed that mining proceeds were going only to the RUF; DBK-063, Transcript 2 August 2006, p. 24. 262 George Johnson, Transcript 19 September 2005, pp. 55–58. 263 Exhibit P-38, Security Council Resolution 1181 (13 July 1998) Concerning the Ongoing Conflict in Sierra Leone. 1254 part iv

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 fĳighters 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

264 Exhibit P-37, Security Council Resolution 1132 (8 October 1997) Concerning Sierra Leone and the AFRC; Exhibit P-66, U.S. Department of State, “Sierra Leone Country Report on Human Rights Practices for 1997,” Released by the Bureau of Democracy, Human Rights and Labor, January 30 1998, CMS p. 16525. 265 Exhibit P-64, “ECOWAS Six-Month Peace Plan for Sierra Leone,” 23 October 1997, CMS p. 16518. 266 Exhibit P-57, NPWJ Report, CMS p. 16012; TF1-334, Transcript 17 May 2005, p. 68; Exhibit P-36, Colonel Richard Irons, “Military Expert Witness Report on the AFRC of Sierra Leone,” August 2005 [hereinafter “Iron Report”], para. C2.1. 267 Judicial Notice Decision, Fact P. 268 TF1-334, Transcript 17 May 2005, p. 68; exhibit P-36, Iron Report, C2.2. 269 Exhibit P-36, Iron Report, para. C2.1. 270 George Johnson, Transcript 15 September 2005, p. 24; see also exhibit P-30(a), “Map of Sierra Leone,” as marked by witness George Johnson. 271 Exhibit P-36, Iron Report, C2.1. 272 See Annex C, Map of the Routes taken by AFRC troops throughout the Indictment period. 273 Exhibit P-36, Iron Report, pp. C2–C4. judgments 1255

AFRC and RUF offfĳicers discussed the future of their movement. An initiative to recapture Freetown was abandoned due to insufffĳicient 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 offfĳi- cials and RUF fĳighters 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 fĳighters 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 fĳighters.282 As a result, SAJ Musa, and a signifĳi- cant 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

274 TF1-334, Transcript 17 May 2005, p. 73. 275 TF1-334, Transcript 17 May 2005, pp. 73–74, 84. 276 TF1-334, Transcript 17 May 2005, p. 84. 277 TF1-334, Transcript 17 May 2005, p. 81. 278 TF1-334, Transcript 17 May 2005, pp. 82–83. 279 DAB-018, Transcript 7 September 2006, pp. 7–9. 280 TF1-184, Transcript 27 September 2005, p. 9. 281 TF1-184, Transcript 27 September 2005, p. 6–8. See also TF1-153, Transcript 23 September 2005, pp. 62–63. 282 George Johnson, Transcript 15 September 2005, pp. 30–32; George Johnson, Transcript 19 September 2005, pp. 58–60; TF1-184, Transcript 27 September 2005, pp. 16–18. 283 George Johnson, Transcript 15 September 2005, pp. 30–32; TF1-184, Transcript 27 September 2005, p. 6–8; see also TF1-153, Transcript 23 September 2005, pp. 62–63. 1256 part iv

Koroma and his fĳighters 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 fĳighters 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 fĳighting 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

284 TF1-334, Transcript 17 May 2005, p. 117. 285 George Johnson, Transcript 15 September 2005, pp. 33–34. 286 TF1-334, Transcript 18 May 2005, p. 3. 287 TF1-334, Transcript 18 May 2005, p. 3. 288 TF1-334, Transcript 18 May 2005, pp. 4–6. 289 TF1-334, Transcript 18 May 2005, p. 9. 290 TF1-334, Transcript 18 May 2005, pp. 15–16, 18–19; TF1- 045, Transcript 19 July 2005, p. 93. 291 TF1-334, Transcript 21 June 2005, pp. 18–19. 292 TF1-334, Transcript 18 May 2005, pp. 24–33; Transcript 19 May 2005, pp. 3–4. 293 George Johnson, Transcript 15 September 2005, pp. 44–45; DAB-023, Transcript 3 August 2006, pp. 75, 78; TF1-334, Transcript 20 May 2005, pp. 14–15; DAB-098, Transcript 4 September 2006, pp. 33, 45; TF1-033, Transcript 11 July 2005, pp. 11–13; TF1-216, Transcript 27 June 2005, p. 92; TF1-217, Transcript 17 October 2005, pp. 17–21, 36–37, 46–47. judgments 1257

(or Kayima),294 Koidu Town,295 Foendor,296 Bomboafuidu,297 Yardu Sandu,298 Penduma299 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 offf 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 fĳighters.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

294 TF1-074, Transcript 5 July 2005, pp. 11, 14–15. 295 TF1-334, Transcript 20 May 2005, pp. 4, 7, 8; Exhibit P-54, Amnesty International Report, “Sierra Leone 1998: A year of Atrocities Against Civilians,” CMS p. 15806–15807; TF1-217, Transcript 17 October 2005, pp. 4–5; DAB-131, Transcript 14 September 2006, p. 38. 296 TF1-076, Transcript 27 June 2005, pp. 101–108. 297 TF1-206, Transcript 28 June 2005, pp. 90–98; DAB-123, Transcript 11 September 2006, pp. 59–67, 76–85; DAB-123 Transcript 12 September 2006 p. 29. 298 TF1-019, Transcript 30 June 2005, pp. 90–91. 299 TF1-217, Transcript 17 October 2005, pp. 12–23, 46. 300 DAB-025, Transcript 28 July 2006, pp. 95, 107–108; DAB-101, Transcript 12 September 2006, pp. 81–88, 96–98. 301 TF1-114, Transcript 18 July 2005, pp. 12, 59; TF1-113, Transcript 18 July 2005, pp. 73–74. 302 TF1 045, Transcript 19 July 2005, pp. 94–96. 303 TF1 045, Transcript 19 July 2005, pp. 97. 304 TF1 045, Transcript 19 July 2005, pp. 98–100. 305 George Johnson, Transcript 19 September 2005, pp. 62– 63; TF1-153, Transcript 23 September 2005, pp. 62–63; TF1 045, Transcript 19 July 2005, p. 97; DAB-059, Transcript 27 September 2006, pp. 81–82. 306 Exhibit P-57, NPWJ Report, CMS p. 16211. 1258 part iv moved north to Mansofĳinia 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 difffĳiculty 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 Mansofĳinia and started a three month journey through Sierra Leone to Rosos, which is located in eastern Bombali District. From Mansofĳinia 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 Yifĳin,309 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,310 Bonoya, Karina, Pendembu311 and Mateboi before fĳinally arriving at Rosos.312 The civilian population was routinely targeted and attacked by soldiers and fĳighters on that route.313 Villages attacked by the troops on their path included Yifĳin,314 Yiraye315 and Kumalu316 in Koinadugu District and

307 Also known as Tombudu. 308 Exhibit P-36, Iron Report, para. C5.4. 309 Also referred to as Yifffĳin. 310 Also referred to as Magbengbeh. 311 Also referred to as Gbendembu. 312 Exhibit P-30(a), “Map of Sierra Leone.” 313 See General Requirements of Articles 2, 3 and 4 of the Statute. 314 TF1-033, Transcript 11 July 2005, pp. 16, 86; TF1-033 Transcript 12 July 2005, pp. 26–31; TF1-153, Transcript 22 September 2005, p. 33; DAB-090, Transcript 24 July 2006, pp. 73, 96–105; DAB-086, Transcript 25 July 2006, pp. 11–23. 315 TF1-153, Transcript 22 September 2005, pp. 48–50. 316 TF1-133, Transcript 7 July 2005, pp. 81–82. judgments 1259

Mandaha,317 Rosos,318 Bornoya,319 Mateboi,320 Gbendembu,321 Madina Loko,322 Kamadogbo,323 Kamagbengbe324 and Batkanu in Bombali District.325 193. 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).326 However, following ECOMOG discovery and bombardment of the camp, they travelled west to a village known as ‘Colonel Eddie Town.’327 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.328 194. While the advance team of the AFRC fĳighting forces travelled across the country from east to west, RUF troops under the command of Sam Bockarie maintained control over Kailahun District and parts of Kono District.329 Villages attacked by RUF fĳighters in Kailahun District included Kailahun Town,330 Daru331 and Buedu.332 195. The faction of AFRC fĳighting 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.’ Signifĳicant evidence was adduced regarding the commission of crimes by the troops under

317 TF1-033, Transcript 12 July 2005, p. 5–8; TF1-334, Transcript 23 May 2005, p. 77. 318 TF1-269, Transcript 14 July 2005, pp. 41–43; TF1-267, Transcript 27 July 2005, pp. 4–7, 10, 12–13,16–17. 319 TF1-158, Transcript 26 July 2005, p. 30; TF1-156, Transcript 26 September 2005, pp. 59, 60. 320 George Johnson, Transcript 15 September 2005, pp. 60, 61; TF1-334, Transcript 23 May 2005, p. 87. 321 TF1-033, Transcript 11 July 2005, pp. 32–34. 322 TF1-199, Transcript 6 October 2005, p. 73. 323 TF1-058, Transcript 14 July 2005, p. 94; TF1-157, Transcript 22 July 2005, p. 68. 324 TF1-334, Transcript 23 May 2005, pp. 55–56. 325 TF1-179, Transcript 27 July 2005, pp. 34–35, 50–56. 326 TF1-334, Transcript 23 May 2005, p. 103. 327 ‘Colonel Eddie Town’ was also referred to by witnesses as ‘Major Eddie Town.’ The town is actually known by the name Gberi or Gberimatmatank. The troops renamed it after one of the commanders of the AFRC forces. It was never clear on the evidence adduced whether ‘Colonel Eddie Town’ is located in Port Loko or Bombali Districts. 328 TF1-334, Transcript 25 May 2005, pp. 49–54. 329 TF1-113, Transcript 18 July 2005, p. 73, 76; DAB-140, Transcript 19 September 2006, p. 93; DAB- 147, Transcript 3 October 2006, p. 49. 330 TF1-113, Transcript 18 July 2005, p. 87–90. 331 TF1-045, Transcript 19 July 2004, pp. 84–86. 332 DAB-140, Transcript 19 September 2006, pp. 72–76, 80–83; TF1-114, Transcript 14 July 2005, pp. 119, 126–130; DAB-131, Transcript 14 September 2006, pp. 42–43. 1260 part iv the command of SAJ Musa and Denis Mingo including at Koinadugu Town,333 Kabala,334 Yomadugu,335 Bafodeya,336 Kurubonla,337 Bambukura338 and Fadugu.339

5. Advance on Freetown (November to December 1998) 196. As the diffferent factions were unable to communicate with each other, SAJ Musa sent a second advance group to locate the fĳirst 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 fĳirst 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.340 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 fĳinal days of 1998.341 200. On one occasion during the advance, SAJ Musa and the AFRC troops heard the British Broadcasting Corporation (BBC) interview Sam Bockarie over the

333 DAB-081, Transcript 20 July 2006, p. 82, 98–99. 334 TF1-147, Transcript 13 July 2005, pp. 7–8, 10–12, 14; TF1-199, Transcript 6 October 2005, p. 88; DAB-156, Transcript 29 September 2006, pp. 39–40, 43, 77–78; DAB-083, Transcript 21 July 2006, p. 33; TF1-209, Transcript 7 July 2006, pp. 36–38; DAB-079, Transcript 28 July 2006, pp. 7–8, 41–43, 46–49. 335 TF1-094, Transcript 13 July 2005, pp. 28–29, 49. 336 TF1-199, Transcript 6 October 2005, pp. 69–70, 75, 90–91. 337 TF1-133, Transcript 7 July 2005, pp. 93–95, 118. Kurubonla is also known as Krubola. 338 DAB-088, Transcript 24 July 2006, pp. 20–25; DAB-089, Transcript 24 July 2006, pp. 43–57. 339 TF1-199, Transcript 6 October 2005, pp. 77–78; DAB-077, Transcript 19 July 2006, pp. 92–94; DAB-078, Transcript 6 September 2006, pp. 10–18, 36; DAB-078, Transcript 11 September 1998, p. 40; DAB-085, Transcript 20 July 2006, pp. 7, 38–39, 41; Exhibit P-57, Conflict Mapping Report, “No Peace without Justice,” 10 March 2004, p. 16056; Exhibit P-54, Amnesty International “Sierra Leone. A year of atrocities against civilians, 1998,” p. 15811; Exhibit D-24 (under seal). 340 George Johnson, Transcripts 15 September 2005, p. 81; 19 September 2005, p. 81. 341 Exhibit P-36, Iron Report, D-5. judgments 1261 radio. Bockarie revealed the position of the AFRC fĳighting forces and explained that it was RUF troops who were approaching Freetown. Soon after, ECOMOG bombarded the area.342 Musa immediately contacted Sam Bockarie, insulted him and told him that he had no right to claim that the troops approaching Freetown were RUF troops.343 201. 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.344 That same day, Sam Bockarie announced over Radio France International (RFI) that the troops had taken Freetown and that “they” would continue to defend Freetown.345 203. One of the fĳirst 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.346 However, during the three days following the capture of State House, the AFRC fĳighting forces were able to control large areas of Freetown. 204. From State House, senior AFRC offfĳicers established radio contact with Sam Bockarie and asked for reinforcement. Bockarie instructed them to burn down Freetown if they could not hold the city.347 Bockarie then announced over the BBC that if ECOMOG did not stop attacking troop positions the whole of Freetown would be burnt down.348 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.349

342 TF1-334, 13 June 2005, pp. 46–48. 343 TF1-334, 13 June 2005, p. 48. 344 George Johnson, Transcript 15 September 2005, p. 21. 345 TF1-334, Transcript 14 June 2005, p. 20. 346 Exhibit P-36, Iron Report, D-11. 347 TF1-334, Transcript 14 June 2005, pp. 48–49. George Johnson, Transcript 16 September, 2005, pp. 40–41. TF1-184, Transcript 27 September 2005, pp. 76–77. 348 George Johnson, Transcript 16 September, 2005, pp. 40–41. 349 George Johnson, Transcript 16 September 2005, pp. 49–51. 1262 part iv

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 offfensive as the troops were running out of ammunition.350 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.351 207. 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.352

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,353 Gberibana,354 Manaarma,355 Sumbuya,356 Nonkoba357 and Tendakum.358 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

350 Exhibit P-36, Iron Report, D-15. 351 Exhibit P-36, Iron Report, D-15. 352 See General Requirements of Articles 2, 3 and 4 of the Staute, para. 236, infra. 353 TF1-085, Transcript 7 April 2005, pp. 35–36. 354 TF1-334, Transcript 15 June 2005, pp. 51–74; TF1-334, Transcript 22 June 2005, pp. 12, 21–28. 355 TF1-253, Transcript 15 April 2005, pp. 80–81; TF1-320, Transcript 8 April 2005, pp. 13–15, 38–40. 356 TF1-282, Transcript 13 April 2005, pp. 15–18; Transcript 14 April 2005, p. 39. 357 TF1-256, Transcript 14 April 2005, pp. 53–55; 72–82, 90–91, 97–98; DBK-111, Transcript 18 September 2006, pp. 43–45. 358 DBK-111, Transcript 18 September 2006, pp. 46–47. Tendakum is also known as Chendakum. judgments 1263 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.359 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 fĳinal cessation of which only occurred in January 2002.360

359 Exhibit P-62, “Peace Agreement between the Government of the Republic of Sierra Leone and the Revolutionary United Front of Sierra Leone,” 7 July 1999 [hereinafter “Lome Peace Accord”]. 360 Judicial Notice Decision, Fact A. 1264 part iv

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 difffers from similar provisions in the governing statutes of other international tribunals in that it does not specifĳically require such crime to have been committed “during armed conflict” (unlike its ICTY counterpart361), or “on national, political, ethnic, racial or religious grounds” (unlike its ICTR counterpart362), or with the perpetrator’s “knowledge of the attack” (unlike its ICC counterpart363). 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.364

361 ICTY Statute, Article 5. 362 ICTR Statute, Article 3. 363 ICC Statute, Article 7; see also United Nations Transitional Administration in East Timor (UNTAET) Regulation No. 2000/15, Section 5. 364 Rule 98 Decision, para. 41. judgments 1265

(a) There must be an attack 214. An ‘attack’ has been defĳined as a “campaign, operation or course of conduct directed against a civilian population and encompasses any mistreatment of the civilian population.”365 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.366 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.367 (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 satisfĳied.368 Proof that the attack occurred either on a widespread basis or in a systematic manner is sufffĳicient to exclude isolated or random acts.369 Each act occurring within the attack need not itself be widespread or systematic. It is sufffĳicient that the act or various acts form part of an attack upon the civilian population that is either “widespread” or “systematic.”370 While isolated or random acts unrelated to the attack are usually excluded from the defĳi- nition of crimes against humanity, a single act perpetrated in the context of a widespread or systematic attack upon a civilian population is sufffĳicient to bestow individual criminal liability upon the perpetrator. Similarly, a perpetrator need not commit numerous offfences to be held liable for crimes against humanity.371 In the context of crimes against humanity, International Tribunals have defĳined 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

365 Prosecutor v. Dragoljub Kunarac, Radomir Kovač and Zoran Vuković, Case No. IT-96-23-A & IT-96-23/1-A, Judgement, 12 June 2002 (“Kunarac Appeal Judgement”), paras. 82–89; Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Judgement, 2 September 1998 (“Akayesu Trial Judgement”), para. 581; Prosecutor v. Fatmir Limaj, Haradin Bala and Isak Musliu, Case No. IT-03-66-T, Judgement, 30 November 2005 (“Limaj Trial Judgement”), para. 182; Prosecutor v. Naletilić and Martinović, Case No. IT-03-66-T, Judgement, 31 March 2003, (“Naletilić and Martinović Trial Judgement”), para. 233. 366 Prosecutor v. Mitar Vasiljević, Case No. IT-98-32-T, Judgement, 29 November 2002 (“Vasiljević Trial Judgement”), para. 30; Kunarac Appeal Judgement, para. 86. 367 Rule 98 Decision, para. 42; Limaj Trial Judgement, para. 182; Kunarac Appeal Judgement, para. 86; Prosecutor v. Duško Tadić (aka “Dule”), Case No. IT-94-1-A, Judgement, 15 July 1999 (“Tadić Appeal Judgement”), para. 251; Prosecutor v. Duško Tadi} (aka “Dule”), Case No. IT-94-1-AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995 (“Tadić Jurisdiction Decision”), para. 141; Kunarac Appeal Judgement, para. 86. 368 Kunarac Appeals Judgement, para. 93. 369 Prosecutor v. Tadić, ICTY IT-94-1-T, Trial Chamber Judgement, 7 May 1997, (“Tadić Trial Judgement”) para. 646. 370 Kunarac Appeals Chamber Judgement, paras. 96–97. 371 Tadić Trial Judgement, para. 649. 1266 part iv or not.”372 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.373 Patterns of crimes, i.e., the non- accidental repetition of similar criminal conduct on a regular basis, are a common expression of ‘systematic’ occurrence.374 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 ‘fĳirst 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 offfĳi- cials or authorities or any identifĳiable patterns of crimes, could be taken into account to determine whether the attack satisfĳies either or both requirements of a ‘widespread’ or ‘systematic’ attack vis-à-vis this civilian population.375 (c) The attack must be directed against any civilian population 216. There is an absolute prohibition against targeting civilians in customary international law.376 The term “civilian population” has been widely defĳined 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.377 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.378 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

372 Akayesu Trial Judgement, para. 580; Prosecutor v. Kayishema and Ruzindana, ICTR-95-1-T, Trial Chamber Judgement, 21 May 1999, (“Kayishema and Ruzindana Trial Judgement”), para. 123; Kunarac Appeals Judgement, para. 94; Tadić Trial Judgement, para. 648. 373 Limaj Trial Judgement, para. 184; Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-A, Judgement, 29 July 2004 (“Blaškić Appeal Judgement”), paras. 100, 120; Kunarac Appeal Judgement, para. 98: “neither the attack nor the acts of the accused needs to be supported by any form of ‘policy’ or ‘plan’ […] It may be useful in establishing that the attack was directed against a civilian population and that it was widespread or systematic (especially the latter) to show that there was in fact a policy or plan, but it may be possible to prove these things by reference to other matters.” 374 Kunarac Trial Judgement, para. 429; Kunarac Appeal Judgement, para. 94. 375 Kunarac Appeal Judgement, para. 95 (footnotes omitted). 376 Blaškić Appeal Judgement, para. 109; Limaj Trial Judgement, para. 186. 377 Akayesu Appeal Judgement, para. 582; Tadić Appeal Judgement, paras. 637–638. 378 Tadić Appeal Judgement, paras. 644. judgments 1267 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.379 217. 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,380 although the targeting of only a limited and randomly selected number of individuals cannot satisfy the requirements of Article 2.381 218. 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 defĳined 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.”382 This defĳinition 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 defĳinition 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 defĳinition 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]383 Therefore, the Trial Chamber concludes that the term civilian must be narrowly defĳined in order to ensure a distinction in an armed conflict between

379 Kunarac Appeal Judgement, para. 91. 380 Limaj Trial Judgement, para. 187; Kunarac Appeal Judgement, para. 90; Blaškić Appeal Judgement, para. 105; Prosecutor v. Stanislav Galić, Case No. IT-98-29-T, Judgement, 5 December 2003 (“Galić Trial Judgement”), para. 143. 381 Limaj Trial Judgement, para. 187; Kunarac Appeal Judgement, para. 90. 382 Indictment, para. 20. 383 Galić Appeal Judgement, footnote 437; Blaškić Appeal Judgement, fn. 220. 1268 part iv 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 offfence to amount to a crime against humanity, there must be a sufffĳicient nexus between the unlawful acts of the perpetrator and the attack.384 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.385 (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 offfence 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.386 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.387 However, the perpetrator need not have been aware of the details of the pre-conceived plan or policy when he committed the offfence and need not have intended to support the regime carrying out the attack on the civilian population.388 222. It does not sufffĳice that an accused knowingly took the risk of participating in the implementation of a policy, plan or ideology.389 Nevertheless, the accused need not know the details of the attack or approve of the context in which his or her acts occur;390 the accused merely needs to understand the overall context in which his or her acts took place.391 The motives for the accused’s participation in

384 Akayesu Trial Judgement, para. 579. 385 Tadić Appeal Judgement, paras. 632. 386 Kunarac Appeal Judgement, para. 121; Tadić Appeal Judgement, para. 255. 387 Blaškić Appeals Judgement, para. 126. 388 Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-T, Judgement, 3 March 2000 (“Blaškić Trial Judgement”), paras. 254–257. 389 Limaj Trial Judgement, para. 190; Blaškić Appeal Judgement, paras. 125–126. 390 Limaj Trial Judgement, para. 190; Kunarac Appeal Judgement, para. 102. 391 Limaj Judgement, para. 190; Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-T, Judgement, 26 February 2001 (“Kordić Trial Judgement”), para. 185. judgments 1269 the attack are irrelevant; the accused need only know that his or her acts are parts thereof.392

2. Submissions of the Parties 223. The Prosecution submits that the evidence adduced at trial sufffĳices to prove the general requirements for crimes against humanity.393 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 specifĳic detail was provided in support of this submission and it was not reiterated in their Final Briefs.394

3. Findings 224. The Trial Chamber fĳinds 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.395 Unless stated otherwise in the Factual Findings, the Trial Chamber is satisfĳied 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 fĳinding, 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 satisfĳied 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 fĳirst 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.396

392 Limaj Trial Judgement, para. 190; Tadić Appeal Judgement, paras. 248, 252; Kunarac Appeal Judgement, para. 103: “[a]t most, evidence that [acts were committed] for purely personal reasons could be indicative of a rebuttable assumption that he was not aware that his acts were part of that attack.” 393 Prosecution Final Brief, paras. 956–964. 394 Joint Legal Part of the Rule 98 Motion, para. 47. 395 See Context of the Alleged Crimes, supra. 396 Exhibit P-66, “US Department of State Sierra Leone Country Report on Human Rights Practices for 1997,” p. 16526–16527, 16539; Exhibit P-59, “No Peace Without Justice Conflict Mapping Report,” p. 15910. 1270 part iv

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 difffĳiculties may typically result in attacks by non-State actors being less obviously classifĳiable as ‘widespread’ or ‘systematic.’397 However, the Trial Chamber fĳinds 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.398 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.399 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.400 228. 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 1997.401 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.402 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.403

397 See Limaj Trial Judgement, para. 191. 398 Exhibit P-66, “US Department of State Sierra Leone Country Report on Human Rights Practices for 1997,” p. 16526. 399 Exhibit P-66, “US Department of State Sierra Leone Country Report on Human Rights Practices for 1997,” p. 16527–16528; TF1-122, Transcript 24 June 2005, pp. 23–26, 101–102, 114–115; TF1-122, Transcript 24 June 2005, pp. 35–37. 400 Exhibit P-66, “US Department of State Sierra Leone Country Report on Human Rights Practices for 1997,” p. 16530. 401 TF1-004, Transcript 23 June 2005, pp. 13–15, 18, 96–99 (Tikonko); TF1-053, Transcript 18 April 2005, pp. 103, 107, 108, TF1-053, Transcript 19 April 2005, p. 94 (Gerihun); exhibit P-66, “U.S. Department of State, Sierra Leone Country Report on Human Rights Practises for 1997,” CMS p. 16528 (Gerihun, Sembehun and Telu Bongor). 402 DAB-147, Transcript 3 October 2006, p. 27; TF1-122, Transcript 24 June 2005, pp. 5, 7, 12, 29–30, 35–37, 44–48, 63–68; George Johnson, Transcript 19 September 2005, p. 55. 403 TF1-122, Transcript 24 June 2005, pp. 32–33. judgments 1271

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.404 Witnesses testi- fĳied that many civilians were assaulted or killed during this process.405 This testimony is corroborated by documentary evidence from the US Department of State describing physical violence inflicted on civilian miners near Tongo Field.406 230. 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 offfĳicials were routinely responsible for the commission of the crimes. In Bo District, for example, AFRC offfĳicials were involved in the burning down of the SLPP party offfĳice.407 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 offfĳicials.408 A similar incident occurred in Kailahun District, where at least 57 alleged Kamajor supporters were arrested and shot by AFRC/RUF offfĳicials.409 231. 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 satisfĳied that civilians were forced to labour in the diamond mines in Tongo Field pursuant to a policy formulated and administered by the AFRC Secretariat.410 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.411 232. Although it is sufffĳicient for the general requirements of crimes against humanity to establish that the attack was systematic, the Trial Chamber is

404 TF1-062, Transcript 27 June 2005, pp. 22–27; TF1-122, Transcript 24 June 2005, p. 72; TF1-334, Transcript 17 May 2005, pp. 54–55; TF1-045, Transcript 20 July 2005 pp. 88–89; DAB-033, Transcript 25 September 2006, p. 43, Transcript 2 October 2006, pp. 109–110. 405 TF1-062, Transcript 27 June 2005, p. 33; TF1-045, Transcript 19 July 2005, p. 55, Transcript 20 July 2005, pp. 16–18. 406 Exhibit P-66, “US Department of State Sierra Leone Country Report on Human Rights Practices for 1997” p. 16530. 407 TF1-053, Transcript 18 April 2005, pp. 98–99. 408 TF1-122, Transcript 24 June 2005, pp. 35–49. 409 TF1-113, Transcript 18 July 2005, pp. 89–90. 410 Factual Findings, Enslavement, paras. 1289–1308 infra. 411 Prosecution Final Brief, paras. 484–485. 1272 part iv satisfĳied 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 offfences. (b) Post AFRC/RUF Government Period (February 1998-January 2000) 233. The retreat of the AFRC/RUF from Freetown in 1998 was characterised by the infliction of violence against civilians.412 Documentary evidence authored by the United Nations and Human Rights Watch reports that attacks in villages across Sierra Leone continued regularly throughout the year.413 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.”414 Numerous instances appear in the oral evidence of pregnant women being killed, beaten or raped in these attacks.415 Civilians sufffered amputations including arms, hands, feet, breasts, lips and ears.416 The abducted civilians, numbered in their thousands417, were forced to serve the AFRC/RUF as “porters, potential recruits or sex slaves.”418 Women were actively targeted through sexual violence.419 The phenomenon of the ‘bush wives’ witnessed thousands of women forcibly married to rebels.420 234. The fact that civilians were the primary target of the attack is amply demonstrated by the nature of the offfences described above, the majority of which served no military purpose. Instead, evidence establishes that the infliction of

412 Exhibit P-41, “Fourth Report of the Secretary General on the Situation in Sierra Leone” (18 March 1998), p. 15576. 413 Exhibit P-38, “Security Council Resolution 1181 (13 July 1998), p. 15555; Exhibit P-45, “Third Progress Report of the UN Observer Mission in Sierra Leone” (16 October 1998), p. 15647; Exhibit P-52, “Sowing Terror, Atrocities against Civilians in Sierra Leone” (Human Rights Watch Report, July 1998), p. 15727. 414 Exhibit P-45, “Third Progress Report of the UN Observer Mission in Sierra Leone” (16 October 1998), p. 15641. 415 TF1-253, Transcript 15 April 2005, pp. 68–69, 71, 80–81; TF1-158, Transcript 26 July 2005, p. 35; TF1-198, Transcript 28 June 2005, p. 12; TF1-004, Transcript 23 June 2005, pp. 18–21; TF1-055, Transcript 12 July 2005, pp. 132, 136; TF1-209, Transcript 7 July 2005, pp. 28–36; TF1-094, Transcript 13 July 2005, pp. 41, 55–57; DAB-101, Transcript 12 September 2006, p. 93. 416 Exhibit P-26, “MSF 1998 Report: Atrocities Against Civilians in Sierra Leone,” pp. 3787–3792; exhibit P-42, “Fifth Report of the Secretary General on the Situation in Sierra Leone” (9 June 1998), p. 15590; exhibit P-54 “Sierra Leone. 1998 – A Year of Atrocities Against Civilians” (Amnesty International Report), p. 15798. 417 Exhibit P-52, “Sowing Terror, Atrocities against Civilians in Sierra Leone” (Human Rights Watch Report, July 1998), p. 15727. 418 Exhibit P-47, “Sixth Progress Report of the UN Observer Mission in Sierra Leone” (4 June 1999), p. 15672. 419 Exhibit P-52, “Sowing Terror, Atrocities against Civilians in Sierra Leone” (Human Rights Watch Report, July 1998), p. 15727. 420 Exhibit P-32, “Expert Report on the Phenomenon of “Forced Marriage” in the Context of the Conflict in Sierra Leone and, more specifĳically, in the context of the Trials Against the RUF and the AFRC Accused only,” p. 15265. judgments 1273 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.421 The stated aim of the attack was to shock the entire country and the international community.422 In addition to Karina, AFRC and/or RUF forces attacked civilians in a number of other villages in Bombali District, including Mandaha,423 Rosos,424 Bornoya,425 Mateboi,426 Gbendembu,427 Madina Loko,428 Kamadogbo,429 Kamalu,430 Kamagbengbe431 and Batkanu.432 235. A report admitted in evidence, authored by UNHCR offfĳicers, details numerous incidents of killings, mutilations, beatings and rapes of civilians in Kono and Koinadugu Districts in 1998.433 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 Dis- trict, civilians were attacked in Tombodu,434 Kaima (or Kayima),435 Koidu Town,436 Foendor,437 Bomboafuidu,438 Yardu Sandu,439 Penduma440 and Mortema.441

421 TF1-157, Transcript 25 September 2005, pp. 29–30, 58–60; TF1-157 Transcript 26 September 2005, pp. 9, 23–24, 30; George Johnson, Transcript 15 September 2005, pp. 53–54. 422 TF1-334, Transcript 23 May 2005, pp. 56–60, 61, 64–65. 423 TF1-033, Transcript 12 July 2005, p. 5–8; TF1-334, Transcript 23 May 2005, p. 77. 424 TF1-269, Transcript 14 July 2005, pp. 41–43; TF1-267, Transcript 27 July 2005, pp. 4–7, 10, 12–13,16–17. 425 TF1-158, Transcript 26 July 2005, p. 30; TF1-156, Transcript 26 September 2005, pp. 59, 60. 426 George Johnson, Transcript 15 September 2005, pp. 60, 61; TF1-334, Transcript 23 May 2005, p. 87. 427 TF1-033, Transcript 11 July 2005, pp. 32–34. 428 TF1-199, Transcript 6 October 2005, p. 73. 429 TF1-058, Transcript 14 July 2005, p. 94; TF1-157, Transcript 22 July 2005, p. 68. 430 Exhibit P-54, “Amnesty International ‘Sierra Leone 1998 – a year of atrocities against civilians’ ,” p. 15811. 431 TF1-334, Transcript 23 May 2005, pp. 55–56. 432 TF1-179, Transcript 27 July 2005, pp. 34–35, 50–56. 433 Exhibit P-51, “Sierra Leone Victims of Violence: Summary Report” (UNHCR) pp. 15707–15720. 434 George Johnson, Transcript 15 September 2005, p. 44–45; DAB-023, Transcript 3 August 2006, pp. 75, 78; TF1-334, Transcript 20 May 2005, pp. 14–15; DAB-098, Transcript 4 September 2006, p. 33, 45; TF1-033, Transcript 11 July 2005, pp. 11–13; TF1-216, Transcript 27 June 2005, p. 92; TF1-217, Transcript 17 October 2005, pp. 17–21, 36–37, 46–47. 435 TF1-074, Transcript 5 July 2005, pp. 11, 14–15. 436 TF1-334, Transcript 20 May 2005, pp. 4, 7, 8; Exhibit P-54, “Amnesty International Report on Sierra Leone, A year of atrocities against civilians,” p. 15806–15807; TF1-217, Transcript 17 October 2005, pp. 4–5; DAB-131, Transcript 14 September 2006, p. 38. 437 TF1-076, Transcript 27 June 2005, pp. 101–108. 438 TF1-206, Transcript 28 June 2005, pp. 90–98; DAB-123, Transcript 11 September 2006, pp. 59–67, 76–85; DAB-123 Transcript 12 September 2006 p. 29. 439 TF1-019, Transcript 30 June 2005, pp. 90–91. 440 TF1-217, Transcript 17 October 2005, pp. 12–23, 46. 441 DAB-025, Transcript 28 July 2006, pp. 95, 107–108; DAB-101, Transcript 12 September 2006, pp. 81–88, 96–98. 1274 part iv

In Koinadugu District, civilians were attacked in Koinadugu Town,442 Kabala,443 Yifĳin,444 Yiraye,445 Yomadugu,446 Bafodeya,447 Krubola,448 Bambukura449 and Fadugu.450 In Kailahun District, civilians were attacked in Kailahun Town,451 Daru452 and Buedu.453 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.”454 Reliable documentary evidence from several sources estimates that up to fĳive 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.455 Eyewitnesses described the execution of members of religious orders456 and civilians in mosques were also killed on suspicion that they

442 DAB-081, Transcript 20 July 2006, p. 82, 98–99. 443 TF1-147, Transcript 13 July 2005, pp. 7–8, 10–12, 14; TF1-199, Transcript 6 October 2005, p. 88; DAB-156, Transcript 29 September 2006, pp. 39–40, 43, 77–78; DAB-083, Transcript 21 July 2006, p. 33; TF1-209, Transcript 7 July 2006, pp. 36–38; DAB-079, Transcript 28 July 2006, pp. 7–8, 41–43, 46–49. 444 TF1-033, Transcript 11 July 2005, pp. 16, 86; TF1-033 Transcript 12 July 2005, pp. 26–31; TF1-153, Transcript 22 September 2005, p. 33; DAB-090, Transcript 24 July 2006, pp. 73, 96–105; DAB-086, Transcript 25 July 2006, pp. 11–23. 445 TF1-153, Transcript 22 September 2005, pp. 48–50. 446 TF1-094, Transcript 13 July 2005, pp. 28–29, 49. 447 TF1-199, Transcript 6 October 2005, pp. 69–70, 75, 90–91. 448 TF1-133, Transcript 7 July 2005, pp. 93–95, 118. 449 DAB-088, Transcript 24 July 2006, pp. 20–25; DAB-089, Transcript 24 July 2006, pp. 43–57. 450 TF1-199, Transcript 6 October 2005, pp. 77–78; DAB-077, Transcript 19 July 2006, pp. 92–94; DAB-078, Transcript 6 September 2006, pp. 10–18, 36; DAB-078, Transcript 11 September 1998, p. 40; DAB-085, Transcript 20 July 2006, pp. 7, 38–39, 41; exhibit P-57, Conflict Mapping Report, “No Peace without Justice,” 10 March 2004, p. 16056; exhibit P-54, Amnesty International “Sierra Leone. A year of atrocities against civilians, 1998,” p. 15811; exhibit D-24 (under seal). 451 TF1-113, Transcript 18 July 2005, p. 87–90. 452 TF1-045, Transcript 19 July 2004, pp. 84–86. 453 DAB-140, Transcript 19 September 2006, pp. 72–76, 80–83; TF1-114, Transcript 14 July 2005, pp. 119, 126–130; DAB-131, Transcript 14 September 2006, pp. 42–43. 454 Exhibit P-53, “We’ll Kill You if You Cry, Sexual Violence in the Sierra Leone Conflict” (Human Rights Watch Report January 2003) 15762. 455 Exhibit P-46, “Fifth Report of the Secretary-General on the United Nations Observer Mission in Sierra Leone,” p. 15653, 15657–15659; Exhibit P-53, “We’ll Kill You if You Cry, Sexual Violence in the Sierra Leone Conflict” (Human Rights Watch Report January 2003) 15762; exhibit P-68, “Women Waging Peace and the Policy Commission “from Combat to Community” Women and Girls of Sierra Leone,” p. 16578. See also testimony of Prosecution es TF1-083, Transcript 8 April 2005, p. 62 and TF1-334, Transcript 14 June 2005, p. 86. 456 Gibril Massaquoi, Transcript 10 October 2005, p. 28; TF1-334, Transcript 14 June 2005, pp. 95–97; George Johnson, Transcript 16 September 2005, p. 55; TF1-184, Transcript 27 September 2005, pp. 82–84; TF1-153, Transcript 23 September 2005, pp. 20–22; Gibril Massaquoi, Transcript 10 October 2005, pp. 27–28. judgments 1275 had been harbouring ECOMOG soldiers.457 A military expert testifĳied that the damage to Freetown during the subsequent retreat appeared to have been a policy driven by spite as there was little military justifĳication for the crimes committed.458 Witnesses testifĳied that violence against civilians continued over the following months in Port Loko, at locations including Masiaka,459 Gberibana,460 Manaarma,461 Sumbuya,462 Nonkoba463 and Tendakum.464 237. The above evidence sufffĳices 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 afffected. 238. Although it is not strictly necessary, the Trial Chamber fĳinds 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 offfĳicially sanctioned the looting of civilian property on an unprecedented scale so that the soldiers could support themselves.465 ‘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.466 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.467 239. The Trial Chamber is also satisfĳied 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.

457 TF1-083, Transcript 8 April 2005, pp. 69, 70; see also exhibit P-46, “Fifth report of the Secretary General on the UN Observer Mission in Sierra Leone,” 4 March 1999, p. 15659. 458 Exhibit P-36, Iron Report, para. D.17. 459 TF1-085, Transcript 7 April 2005, pp. 35–36. 460 TF1-334, Transcript 15 June 2005, pp. 51–74; TF1-334, Transcript 22 June 2005, pp. 12, 21–28. 461 TF1-253, Transcript 15 April 2005, pp. 80–81; TF1-320, Transcript 8 April 2005, pp. 13–15, 38–40. 462 TF1-282, Transcript 13 April 2005, pp. 15–18; Transcript 14 April 2005, p. 39. 463 TF1-256, Transcript 14 April 2005, pp. 53–55; 72–82, 90–91, 97–98; DBK-111, Transcript 18 September 2006, pp. 43–45. 464 DBK-111, Transcript 18 September 2006, pp. 46–47. 465 TF1-334, Transcript 17 May 2005, pp. 72–73; TF1-045, Transcript 19 July 2005, p. 82; TF1-334, Transcript 20 May 2005, pp. 4, 7, 8; Exhibit P-54, “Amnesty International Report on Sierra Leone, A year of atrocities against civilians,” p. 15806; exhibit P-59 “No Peace Without Justice Conflict Mapping Report,” p. 15913. 466 TF1-033, Transcript 11 June 2005, pp. 12–14. 467 TF1-334, Transcript 23 May 2005, pp. 100–106; 24 May 2005, pp. 2–5. 1276 part iv

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, afffording 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.468

468 Rule 98 Decision, para. 44. judgments 1277

(a) There must have been an armed conflict whether non-international or international in character at the time the offfences 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.”469 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.”470 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.”471 244. 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.472 These criteria are used “solely for the purpose, as a minimum, of distinguishing an armed conflict from banditry, unorganised and short-lived insurrections, or terror- ist activities, which are not subject to international humanitarian law.”473 245. 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.474

469 See Prosecutor v. Fofana, Case No. SCSL-04-14-PT, Decision on Preliminary Motion on Lack of Jurisdiction Materiae: Nature of the Armed Conflict, 25 May 2004 (“Appeal Decision on Nature of Armed Conflict”), para. 25; see also Milošević Rule 98bis Decision, para. 21; Limaj Trial Judgement, para. 90. 470 Tadić Jurisdiction Decision, para. 70. 471 Kunarac Appeal Judgement, para. 58. 472 Tadić Trial Judgement, para. 562; Limaj Trial Judgement, paras. 84, 89. 473 Tadić Trial Judgement, para. 562 [emphasis added]; Limaj Trial Judgement, paras. 84, 89. 474 Tadić Appeal Decision on Jurisdiction, para. 70; Prosecutor v. Sefer Halilović, Case No. IT-01-48-T, Judgement, 16 November 2005 (“Halilović Trial Judgement”), para. 26; Kunarac Appeal Judgement, para. 64. 1278 part iv

(b) There must be a nexus between the armed conflict and the alleged offfence 246. For an offfence to fall within the scope of Article 3 of the Statute, the Trial Chamber must establish that a sufffĳicient link between the alleged breach of Common Article 3 or Additional Protocol II and the underlying armed conflict existed.475 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 satisfĳied where the perpetrator acted in furtherance of or under the guise of the armed conflict.476 247. The following factors have been considered in the jurisprudence to determine if an act was sufffĳiciently 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 offfĳicial duties.477 (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.478 To fulfĳil 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.479

2. Findings 249. The Trial Chamber fĳinds that at all times relevant to the Indictment, there was an armed conflict in Sierra Leone. The Trial Chamber took judicial notice of

475 See Tadić Appeals Chamber Jurisdiction Decision, para. 70; Prosecutor v. Ignace Bagilishema, Case No. ICTR-95-1A-T, Judgement, 7 June 2001 (“Bagilishema Trial Judgement”), para. 105; Prosecutor v. Alfred Musema, Case No. ICTR-96-13-T, Judgement, 27 January 2000 (“Musema Trial Judgement”), para. 259; Prosecutor v. Georges Anderson Nderubumwe Rutaganda, Case No. ICTR-96-3-T, Judgement and Sentence, 6 December 1999 (“Rutaganda Trial Judgement”), para. 104; Kayishema and Ruzindana Trial Judgement, para. 185; Akayesu Trial Judgement, para. 643. 476 Rule 98 Decision, para. 44; Kunarac Appeal Judgement, para. 58; Tadić Appeals Chamber Jurisdiction Decision, para. 70; Rutaganda Appeal Judgement, para. 570. 477 Kunarac Appeal Judgement, paras. 58–59. The nexus does not imply the requirement that the perpetrator be related or linked to one of the parties to the conflict: Akayesu Appeal Judgement, paras. 443–444. See also Prosecutor v. Georges Anderson Nderubumwe Rutaganda, Case No. ICTR-96- 3-A, Judgement, 26 May 2003 (Rutaganda Appeal Judgement), para. 570. 478 Common Article 3; Article 4(1) of Additional Protocol II. 479 Tadić Trial Judgement, para. 616; Prosecutor v. Naser Orić, Case No. IT-03-68-T, Trial Judgement (Orić Trial Judgement), para. 258; Prosecutor v. Laurent Semanza, Case No. ICTR-97-20-T, Judgement and Sentence, 15 May 2003 (“Semanza Trial Judgement”), para. 365; Halilović Trial Judgement, para. 32. judgments 1279 the fact that the conflict in Sierra Leone lasted from March 1991 until January 2002 and involved the RUF, AFRC and CDF.480 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.481 250. 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.482 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 confĳines itself to the following brief observations. 251. The Trial Chamber fĳinds 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.483 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 fĳind that they acted on its behalf. Nonetheless, the Trial Chamber reiterates that this fĳinding 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.484 After the coup, the

480 Judicial Notice Decision, Facts A and D. 481 “Defence Response to Prosecutors Request to Admit” (Brima), 2 March 2005, p. 6728; “Kamara - Defence Response to Prosecutor’s Request to Admit,” SCSL-2004-16-PT, 7 March 2005, p. 6826; “Kanu – Defence Additional Response to Prosecution Request to Admit,” SCSL-2004-16-PT, 4 March 2005. The Trial Chamber notes that the Kanu Defence denied the fact in part. The Trial Chamber fĳinds this immaterial as the denial did not go to whether a state of armed conflict existed, but rather whether the conflict was best characterised as a ‘war of aggression’ or a ‘civil war’: Kanu Pre-Trial Brief, para. 12. 482 Prosecution Final Brief, para. 968, referring to Norman Nature of the Armed Conflict Decision, para. 25. 483 Prosecutor v. Tadić, Case No. IT-94-1-A, Appeal Chamber, Judgement, 15 July 1999 at para. 84; Prosecutor v. Naletilić, Case No. IT-98-34-T, Trial Chamber, Judgement, 31 March 2003 at para. 182; Prosecutor v. Kordić, Case No. IT-95-14/2-T, Trial Chamber, Judgement, 26 February 2001 at para. 66. 484 Exhibit P-63, “Peace Agreement Between the Government of the Republic of Sierra Leone and the Revolutionary United Front of Sierra Leone,” p. 16508. 1280 part iv armed conflict continued but was now conducted by RUF and former SLA troops, on behalf of the AFRC/RUF government, fĳighting 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 1997.485 253. The armed conflict continued along the same lines after the ECOMOG intervention which saw the Kabbah government reinstated.486 The May 1999 Ceasefĳire Agreement and the July 1999 Lomé Peace Treaty both provided for the cessation of the armed conflict,487 which did not eventuate.488 Although these agreements referred only to the RUF, it is apparent from documentary evidence that the AFRC/RUF staged joint attacks periodically throughout 1999.489 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 unifĳied commitment to implementing the Lomé Treaty.490 The Trial Chamber is therefore sat- isfĳied that the AFRC remained actively engaged in hostilities until the end of the Indictment period in January 2000.491 254. The Trial Chamber fĳinds that the crimes were closely related to this conflict.492 Unless indicated otherwise in Chapter X of this Judgement, the Facts and Findings, the Trial Chamber is also satisfĳied 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).

485 Exhibit P-66, “US Department of State Sierra Leone Country Report on Human Rights Practices for 1997,” pp. 16527, 16534–16535; Exhibit P-59, “No Peace Without Justice Conflict Mapping Report,” p. 15910–15912. 486 Exhibit P-59, “No Peace Without Justice Conflict Mapping Report,” p. 15912–15916. 487 Exhibit P-65, “Agreement on Ceasefĳire in Sierra Leone,” p. 16522; exhibit P-62, “Peace Agreement Between the Government of Sierra Leone and the Revolutionary United Front of Sierra Leone” pp. 16480. 488 Exhibit P-59, “No Peace Without Justice Conflict Mapping Report,” p. 15918; exhibit P-67, “First Report on the United Nations Mission in Sierra Leone (UNAMSIL)” (6 December 1999) p. 16549. 489 Exhibit P-59, “No Peace Without Justice Conflict Mapping Report,” p. 15916–15918; exhibit P-67, “First Report on the United Nations Mission in Sierra Leone (UNAMSIL)” (6 December 1999) pp. 16548–16549. 490 Exhibit P-59, “Statement on the Historic Return to Freetown, Sierra Leone, of the leaders of the Alliance of the Revolutionary United Front of Sierra Leone and the Armed Forces Revolutionary Council,” p. 16470–16471. 491 The Trial Chamber took judicial notice of the fact that the conflict in Sierra Leone occurred from March 1991 until January 2002: Judicial Notice Decision, Fact A. 492 See Context of the Alleged Crimes, supra. judgments 1281

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 fĳifteen 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.493

2. Findings 258. As stated above, the Trial Chamber fĳinds 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.494 Unless indicated otherwise in its Factual Findings, the Trial Chamber is also satisfĳied that all victims were not directly taking part in the hostilities at the time the crimes occurred.

493 See also Rule 98 Decision, para. 45. 494 See Context of Alleged Crimes, supra. 1282 part iv

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 fĳindings on their role495 and their responsibility496 for the crimes allegedly committed in this period.497 260. The Indictment alleges that the three Accused were “senior members of the AFRC/Junta.”498 Specifĳically, it alleges that all three Accused were members of the “Junta governing body”499 and that the Accused Brima and Kamara were “Public [sic] Liaison Offfĳicers” (PLOs) in the AFRC government.500 261. 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,501 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.502 It further submits that the governing council and its members had political authority over the military503 and that Regional Secretaries (or Ministers) acted as links between the governing council and the military forces deployed in the provinces.504 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.505 262. The Brima and Kamara Defence argue that the AFRC was a military government and that military governments tend to appoint soldiers to political offfĳice, but that this does not mean that those soldiers holding political offfĳices 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

495 See Role of the Accused, infra. 496 See Responsibility of the Accused, infra. 497 Indictment, paras. 41, 43–44, 65, 67, 75. 498 Indictment paras. 22, 25, and 28. 499 Indictment paras. 23, 26, 29. Para. 29, relating to the Accused Kanu, is the only paragraph which refers to the Junta governing body as the “AFRC Supreme Council.” 500 Indictment paras. 23, 26. The Trial Chamber notes that the correct title of this position was Principal Liaison Offfĳicer. 501 Prosecution Final Brief, para. 299. 502 Prosecution Final Brief, paras. 332, 336. 503 Prosecution Final Brief, para. 337. 504 Prosecution Final Brief, para. 345. 505 Prosecution Final Brief, para. 351. judgments 1283 and a Brigadier.506 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.507 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.508 263. Further submissions of the Parties will be addressed below as they arise with regards to specifĳic 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.’509 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”).510 265. On 28 May 1997, the AFRC suspended the 1991 Constitution of Sierra Leone, dissolved the Sierra Leone Parliament, and banned membership of political parties.511 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.”512 The Proclamation also declared that the AFRC would have the power to make laws “for purposes as it may think fĳit, and in the national interest.”513

506 Brima Final Brief, para. 118; Kamara Defence Closing Statement, 7 December 2006, p. 126. 507 Brima Final Brief, para. 121; Brima Defence Closing Statement, 7 December 2006, p. 109, also noting that Colonel SO Williams was the Army Chief of Stafff responsible for running the Sierra Leone army under the AFRC Government, and that Brigadier Mani was the Director of Military Operations in the AFRC Government. 508 Kamara Final Brief, para. 84; Kamara Defence Closing Statement, 7 December 2006, p. 12– 126. 509 Agreed Fact: Kamara- Response to Prosecutor’s Request to Admit, Fact 14. 510 See Context of the Alleged Crimes, paras. 164–165, supra. 511 Exhibit P-4, “Proclamation: Administration of Sierra Leone (Armed Forces Revolutionary Council), Proclamation 1997.” 512 Exhibit P-4, “Proclamation: Administration of Sierra Leone (Armed Forces Revolutionary Council), Proclamation 1997,” setting the number of council members at 27. Exhibit P-5.1,” AFRC Decree Number 4 Administration of Sierra Leone (Armed Forces Revolutionary Council) Proclamation,” issued on 14 July 1997, expanding the maximum number of Council members from 27 to 40. 513 Ibid., Article 3(1). 1284 part iv

266. Subsequently, Johnny Paul Koroma invited the Revolutionary United Front (“RUF”) leadership to join the Government.514 267. The AFRC Government was composed of a Chairman,515 a Deputy Chairman,516 a Secretary-General,517 a governing council,518 Principal Liaison Offfĳicers (PLOs),519 the Armed Forces,520 a Police and a Defence Council,521 Secretaries of State (Regional Ministers),522 and other Ministers.523 268. 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.524 Although under house arrest in Nigeria, RUF leader Foday Sankoh was appointed Deputy Chairman of the AFRC Govern- ment and member of the Governing Council.525 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.526 The AFRC Secretary-General was AK Sesay.527

514 Exhibit P-57, NPWJ Report, CMS p. 15910. 515 Exhibit P-4, “Administration of Sierra Leone (Armed Forces Revolutionary Council) Proclamation,” 28 May 1997, para. 1.(2). a. 516 Exhibit P-4, “Administration of Sierra Leone (Armed Forces Revolutionary Council) Proclamation,” 28 May 1997, para. 1.(2).b. 517 Exhibit P-4, “Administration of Sierra Leone (Armed Forces Revolutionary Council) Proclamation,” 28 May 1997, para. 1.(4). 518 Exhibit P-6, “The Sierra Leone Gazette,” 4 September 1997. Exhibit P-7, “The Sierra Leone Gazette,” 18 September 1997. 519 Exhibit P-5.2., “Armed Forces Revolutionary Council Decree. Establishment of Offfĳice of Principal Liaison Offfĳicer, 1997,” 10 July 1997. 520 TF1-184, Transcript 30 September 2005, pp. 47–48; TF1-045, Transcript 19 July 2005, p. 61; TF1- 334, Transcript 17 May 2005, pp. 18–22; Gibril Massaquoi, Transcript 7 October 2005, p. 73. TF1-334, Transcript 16 May 2005, pp. 88–101. 521 Exhibit P-8, “The Constitution of Sierra Leone, 1991 (Amendment) Decree, 1997” establishing both a Police Council and a separate Defence Council. Pursuant to para. 2.167 of the Decree, the Defence Council consisted of: i) the Chairman of the Armed Forces Revolutionary Council, ii) the Chief Secretary of State, iii) the Under Secretary of State for Defence, iv) the Chief of Defence Stafff, v) the Commanders of the Armed Forces (Army, Navy and Air Force) and their Deputies, vi) the Secretary of State for Internal Afffairs, and vii) two other persons appointed by the Chairman. 522 Exhibit P-5.3. “Armed Forces Revolutionary Council Decree. Establishment of Council of Secretaries, 1997,” 1997. Also Prosecution Exhibit 9. “Change of Titles Order, 1997,” in which the title of “Minister” is changed to the title of “Secretary of State.” 523 TF1-334, Transcript 16 May 2005, pp. 81–82. 524 Exhibit P-5.1, “Administration of Sierra Leone (Armed Forces Revolutionary Council) Proclamation (amendment) Decree, 1997. Exhibit P-6, “Sierra Leone Gazette, 4 September 1997. exhibit P-7, “Sierra Leone Gazette, 18 September 1997. Exhibit P-8, “Constitution of Sierra Leone, 1991 (amendment) Decree.” TF1-334, Transcript 16 May 2005, pp. 88–90. 525 Exhibit P-6, “The Sierra Leone Gazette,” 4 September 1997. exhibit P-7, “The Sierra Leone Gazette,” 18 September 1997. 526 TF1-334, Transcript 16 May 2005, pp. 92, 98. 527 TF1-334, Transcript 16 May 2005, pp. 90, 96; Alex Tamba Brima, Transcript 20 June 2006, p. 44. judgments 1285

269. The AFRC Government also included positions known as Principal Liaison Offfĳicers (PLOs) who supervised specifĳic ministries.528 TF1-334 testifĳied that PLOs reported directly to Johnny Paul Koroma.529 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.530 270. A Council of Secretaries was established on 10 July 1997 which was “directly and collectively responsible for the Armed Forces Revolutionary Council.”531 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.532 SAJ Musa, as Chief Secretary of State, was appointed as the head of the Council of Secretaries.533 The three Accused were not members of the Council of Secretaries.534 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 aka ‘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.535 272. 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.536 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 Stafff. SFY Koroma’s immediate subordinate was the Chief of Army Stafff, Brigadier SO Williams, also known as Kowas.537

528 See Role of the Accused. 529 TF1-334, Transcript 16 May 2005, p. 57. 530 TF1-334, Transcript 16 May 2005, pp. 99–101. 531 Exhibit P-5.3, “AFRC Decree No. 2, Armed Forces Revolutionary Council (Establishment of Council of Secretaries) Decree, [10 July]1997”; TF1-334, Transcript 20 June 2005, p. 94. 532 Exhibit P-5.3, “AFRC Decree No. 2, Armed Forces Revolutionary Council (Establishment of Council of Secretaries) Decree, [10 July]1997.” 533 TF1-334, Transcript 16 May 2005, p. 77; Alex Tamba Brima, Transcript 3 July 2006, p. 71. 534 TF1-334, Transcript 20 June 2005, pp. 95, 96; Alex Tamba Brima, Transcript 20 June 2006, p. 38. 535 TF1-334, Transcript 17 May 2005, pp. 16–17. 536 TF1-334, Transcript 16 May 2005, pp. 99, 102. 537 TF1-334, Transcript 17 May 2005, pp. 18–19. 1286 part iv

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 period538 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.”539 274. 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.540 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.541 The Accused Brima testifĳied that there were two bodies, theCouncil 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.542 275. 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.543 277. 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 and the three Accused, as well as members of

538 Indictment, para. 14. 539 Prosecution Final Brief, para. 337. 540 See Brima Defence Closing Statement, 7 December 2006, pp. 105–106, 107. 541 See Brima Defence Final Trial Brief, para. 163; Brima Defence Closing Statement, 7 December 2006, p. 106. 542 Defence Pre-Trial Brief for Alex Tamba Brima, 17 February 2005, paras. 9, 14; Brima Final Defence Brief, para. 121; Alex Tamba Brima, Transcript 6 June 2006, pp. 69–70; Brima Defence Closing Statement, 7 December 2006, pp. 106–107. 543 Exhibit P-4, “Proclamation: Administration of Sierra Leone (Armed Forces Revolutionary Council), Proclamation 1997,” setting the number of council members at 27; exhibit P-5.1,” AFRC Decree Number 4 Administration of Sierra Leone (Armed Forces Revolutionary Council) Proclamation,” issued on 14 July 1997 expanding the maximum number of Council members from 27 to 40; The prosecution has tendered several exhibits which, under the authority of the Proclamation, formally nominated members of the Armed Forces Revolutionary Council, see specifĳically for the Accused Brima exhibit P-70, “Government Notice 272 (P.N. No. 3 of 1997), Sierra Leone (SL) Gazette No. 69”; exhibit P-6, “The Sierra Leone Gazette” 4 September 1997; exhibit P- 7, “The Sierra Leone Gazette,” 18 September 1997. judgments 1287 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.544 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-7.545 278. 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 efffect ...,”546 suggesting that these were at least two distinct and separate bodies. 279. In addition to the documentary evidence, several witnesses testifĳied on the subject of the governing council. 280. Gibril Massaquoi testifĳied that the Supreme Council was the body overseeing law making and decision making of the AFRC,547 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.548 The Trial Chamber notes that Gibril Massaquoi is the only witness who admits to having been a member of the Supreme Council,549 and therefore accords particular weight to his testimony regarding that body. 281. Witness TF1-334 testifĳied that during the Junta period the terms Council and Supreme Council were used synonymously,550 and that this body was responsible for carrying out the day-to-day activities of the Government.551 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.552 The Trial Chamber is satisfĳied 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

544 Exhibit P-6, “The Sierra Leone Gazette. 4 September 1997,” listing members of the Armed Forces Revolutionary Council Secretariat; exhibit P- 7, “The Sierra Leone Gazette,” 18 September 1997, listing members of the Armed Revolutionary Council. 545 Alex Tamba Brima, Transcript 6 June 2006, pp. 70–72. 546 Exhibit P-78, “AFRC Press Release,” 3 January 1998. 547 Gibril Massaquoi, Transcript 7 October 2005, pp. 72–73. 548 Gibril Massaquoi, Transcript 7 October 2005, pp. 81. 549 The Accused Brima denied having been a member of that body, Accused Alex Tamba Brima, Transcript 6 September 2006, p. 70. 550 TF1-334, Transcript 7 October 2005, p. 72. 551 TF1-334, Transcript 16 May 2005, p. 57. 552 TF1-334, Transcript 16 May 2005, pp. 11–13. 1288 part iv 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 Prosecu- tion witnesses, one Defence witness, DBK-012, also testifĳied that the Supreme Council was the key decision-making body within the AFRC government.553 283. The Accused Brima, on the other hand, testifĳied that the Supreme Council was the body responsible for taking decisions and making laws, while the Council only made recommendations to the Supreme Council.554 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.555 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.556 284. 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.557 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.”558 285. The Trial Chamber fĳinds 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

553 DBK-012, Transcript 18 October 2006, pp. 30–31. The Witness testifĳied however that he did not know whether the Accused Brima was a Supreme Council member but said that the Accused Kamara and Kanu were not members. 554 Defence Pre-Trial Brief for Alex Tamba Brima, 17 February 2005, paras. 9, 14; Alex Tamba Brima, Transcript 6 June 2006, pp. 69–70. 555 Gibril Massaquoi, Transcript 7 October 2005, pp. 81–82. 556 Alex Tamba Brima, Transcript 6 June 2006, pp. 63–68. 557 Exhibit P-69, “AFRC- Secretariat. Minutes of Meeting held on 9 December 1997.” 558 Exhibit P-34, “Minutes of an Emergency Council Meeting of the AFRC Held at State House on Monday 11th August 1997,” para. 14. judgments 1289 government. The Trial Chamber also fĳinds 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.559 From this fact it asks the Trial Chamber to infer that Supreme Council members were aware of all developments around the country.560 287. The Trial Chamber notes that minutes of two other Council meetings held in August and December 1997 were apparently circulated to all Council members.561 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 Stafff. 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.562 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.563 288. The Trial Chamber is satisfĳied on the evidence that security issues and other urgent matters were discussed at these meetings. Therefore, the Trial Chamber fĳinds that Supreme Council members were apprised of all major developments around the country.

3. Principal Liaison Offfĳicers (“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.”564 290. The Kamara Defence submits that even if it is established that an Accused was a Principal Liaison Offfĳicer, this only suggests that he held “some kind of government position,” and does not establish that the Accused had military powers or

559 Prosecution Final Brief, para. 368, citing Gibril Massaquoi, Transcript 7 October 2005, p. 101. 560 Prosecution Trial Brief, para. 368. 561 Exhibit P-34, “Minutes of an Emergency Council Meeting of the AFRC Held at State House on Monday 11th August 1997; Exhibit P-69, “AFRC- Secretariat. Minutes of Meeting held on 9 December 1997.” 562 TF1-045, Transcript 19 July 2005, p. 57–70 563 TF1-045, Transcript 19 July 2005, 71. 564 Prosecution Final Brief, paras. 332, 399. 1290 part iv that the position gave him any powers of command and control over the rank and fĳile of the Sierra Leonean army.565 291. According to a Government Decree establishing the offfĳice of the Principal Liaison Offfĳicer, 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.”566 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 Offfĳicer must have efffective control over the Honourable Members of the Council.”567 This suggests that Principal Liaison Offfĳicers 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.”568 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.569 293. 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 fĳinds that the PLOs were superior to the Regional Secretaries.

565 Kamara Defence Closing Statement, 7 December 2006, p. 124. 566 Exhibit P-5.2, “Armed Forces Revolutionary Council (Establishment of Offfĳice of Principal Liaison Offfĳicer) Decree,” 12 July 1997, para. 3. 567 Exhibit P-34, “Minutes of an Emergency Council Meeting of the AFRC Held at State House on Monday 11 August 1997,” para. 16. 568 Prosecution Final Brief, paras. 336. 569 Prosecution Final Brief, para. 341, citing Exhibit P-5.3, “Armed Forces Revolutionary Council (Establishment of the Council of Secretaries) Decree 1997,” 12 July 1997. judgments 1291

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 offfĳicers in the SLA.570 297. The position of the Brima Defence is that the title of ‘Honourable’ was an honorifĳic akin to ‘Doctor’ or ‘Professor’ in certain other countries, and that numerous individuals apart from the Accused and the coup plotters held this title.571 298. Witness DAB-156 testifĳied that it was possible to acquire the title of ‘Honourable’ in other ways.572 Witness DBK-131 also testifĳied that numerous individuals who had not taken part in the coup were given the title of ‘Honourable,’ including the witness himself. He added that over 200 soldiers were referred to as Honourables and that wealthy individuals were also often able to acquire the title of ‘Honourable.’573 However, this assertion was never put to Prosecution witnesses and in the view of the Trial Chamber it is not persuasive. 299. The Trial Chamber is satisfĳied that the title of ‘Honourable’ was conferred on all 17 Coup plotters and was not merely a title denoting respect.574

C. Conclusion 300. The Trial Chamber is satisfĳied 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-today decision making of the AFRC Government. It further fĳinds that the Principal Liaison Offfĳicers 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.’

570 Prosecution Final Trial Brief, para. 76. 571 Brima Defence Closing Statement, p. 108. 572 DAB-156, Transcript 2 October 2006. 573 DBK-131, Transcript 26 October, pp. 20–21. 574 TF1-334, Transcript 17 May 2005, p. 12; DAB-023, Transcript 3 August 2006, pp. 39, 40. 1292 part iv

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 fĳindings of the Trial Chamber on their criminal responsibility for the crimes alleged during this time period.575

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.”576 It also alleges that he was a “Public [sic] Liaison Offfĳicer (PLO)”577 and “member of the Junta governing body” within the AFRC government.578 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 1998579 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.”580 Finally, it alleges that the Accused Brima “was in command of AFRC/RUF forces which attacked Freetown on 6 January 1999.”581 303. 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 foot- baller 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 2,582 he was often too ill to carry out his functions.583

575 See Responsibility of the Accused, infra. 576 Indictment para. 22. 577 Indictment para. 23. 578 Indictment para. 23. 579 Indictment para. 24. 580 Indictment para. 24. 581 Indictment para. 24. 582 Brima Final Brief, paras. 121, 175. 583 Brima Final Brief, para. 218. judgments 1293

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 fĳirst part of the Indictment period (February through July 1999);584 (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;585 (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;586 (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.587 Thus, the Accused did not participate in the commission of any of the crimes alleged in the Indictment.588 306. The Brima Defence also contends that key Prosecution witnesses were unreliable589 and that other named persons were responsible for the campaign of atrocities depicted by the evidence.590 307. 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.591 Brima notes, however, that Yarya in Kono District is his family’s native village.592 He is Christian and married with two wives, Margaret Brima and Nenneh

584 Brima Final Brief, para. 209. 585 Brima Final Brief, paras. 207–208, 216. 586 Brima Final Brief, paras. 219–221. 587 Brima Final Brief, para. 211. 588 Brima Final Brief, para. 23. 589 Brima Final Brief, paras. 39, 47, 187–203. 590 Brima Final Brief, para. 211. 591 Alex Tamba Brima, Transcript 5 June 2006, p. 52. 592 Alex Tamba Brima, Transcript 5 June 2006, p. 52; Brima Final Trial Brief, para. 20. 1294 part iv

Galleh Brima. He married the latter after the death of his brother Komba Brima.593 Alex Tamba Brima had eleven brothers, four of whom are still alive594 and were serving in the Sierra Leone Army in 1997 and continue to do so, including two also named Tamba Brima.595 309. Brima enlisted into the Sierra Leone Military Forces at Lungi Garrison on 5 June 1991,596 and not in April 1985 as the Indictment alleges.597 He rose to the rank of Corporal, a rank which he held until May 1997.598 During the AFRC/RUF Government period he was promoted to the rank of Stafff Sergeant.599 310. Brima retired from the army on 10 August 2001.600 The Accused Brima testi- fĳied that he was a petty trader after his resignation from the army.601 The Prosecu- tion has adduced evidence that he was a miner and politician at the time of his arrest in 2003.602

3. The Identity of Brima 311. The Accused Brima denies that his fĳirst name is ‘Alex’ and claims that he is a victim of mistaken identity.603 During Brima’s initial appearance on 15 and 17 March 2003, the Presiding Judge asked the Accused to confĳirm that he was “Alex Tamba Brima” and he did so.604 Many witnesses, Prosecution and Defence, referred to the Accused as ‘Alex’ Tamba Brima.605 Offfĳicial AFRC governmental decrees also

593 Alex Tamba Brima, Transcript 5 June 2006, p. 53. 594 Alex Tamba Brima, Transcript 5 June 2006, p. 63. 595 Alex Tamba Brima, Transcript 28 June 2006, pp. 5–7; Exhibit D-13, naming the rank and names of his brothers who serve in the Sierra Leone Army. 596 Exhibit D-14, “Discharge Book.” 597 Indictment, para. 2. 598 Exhibit D-14, “Discharge Book.” 599 Exhibit P-70, “Government Notice 272 (P.N. No. 3 of 1997), Sierra Leone (SL) Gazette No. 69,” 31 December 1997. 600 Alex Tamba Brima, Transcript 6 June 2006, p. 14; Exhibit D-14, “Discharge Book.” 601 Alex Tamba Brima, Transcript 16 June 2006, pp. 17, 18. 602 John Petrie, Transcript 5 October 2005, p. 76. 603 Brima Final Brief, paras. 21, 179–182. The Accused Brima raised this issue in a motion at the pre-trial stage, see Prosecutor v. Brima, SCSL-2003-06-PT, Defence Motion for Leave to Issue a Writ of Habeas Corpus, 28 May 2003; see also Defence Pre-Trial Brief for Tamba Alex Brima, 17 February 2005, para. 5: “[The Accused] does not accept the name ‘Alex’ used by the Prosecution as he has never been so named […].” 604 Transcript 15 March 2003, p. 2; Transcript 17 March 2003, p. 7, stating that he is named “Tamba Alex Brima.” While the fĳirst initial appearance was adjourned in order to provide the Accused with an interpreter, the Trial Chamber is satisfĳied that Brima was sufffĳiciently literate in English to understand the question of Justice Itoe. Brima described himself as reasonably educated and said that he could read, write and speak English: Transcript 28 June 2006, p. 4. 605 Prosecution witnesses: TF1-114, 14 July 2005, p. 119; George Johnson, 15 September 2005, p. 9; John Petrie, Transcript 6 October 2005, p. 44; TF1-153, Transcript 22 September 2005, p. 56. Defence witnesses: DAB-079, Transcript 28 July 2006, p. 62; DBK-037, Transcript 4 October 2005, p. 61; DBK-117, 16 October 2006, p. 28; TRC-01, 16 October 2006, p. 101. judgments 1295 refer to “Alex T. Brima.”606 The Trial Chamber is therefore satisfĳied 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.607 Although he did not mention it in his Pre-Trial brief, at trial he testifĳied that it was his brother, Komba Brima, who was known as “Gullit.”608 He further testifĳied that he played volleyball and not football as a hobby.609 Numerous witnesses, both for the Prosecution610 and for the Defence,611 confĳirmed that because Alex Tamba Brima was a respected football player, he was commonly known as ‘Gullit,’ after the former Dutch football player Ruud Gullit.612 The Trial Chamber is accordingly satisfĳied 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.”613 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 Offfĳicer (PLO) within the AFRC.”614 In addition, Alex Tamba Brima was a member of the junta governing body.”615 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 offfĳicers of higher rank during the AFRC government period, and that he was aware of the government’s policy of forced mining.616 314. 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

606 Exhibit P-7, “Armed Forces Revolutionary Council Secretariat.” 607 Alex Tamba Brima, Transcript 5 June 2006, p. 61; Brima Final Brief, para. 179. 608 Alex Tamba Brima, Transcript 6 June 2006, pp. 16–17. 609 Alex Tamba Brima, Transcript 6 June 2006, pp. 29–31. 610 TF1-153, Transcript 22 September 2005, pp. 12; TF1-184, Transcript 27 September 2005, p. 19; TF1- 334, Transcript 16 May 2005, p. 21; TF1-114, Transcript 14 July 2005, pp. 118–119; TF1-033, Transcript 11 July 2005, p. 6; George Johnson, Transcript 15 September 2005, pp. 9–10. 611 DAB-025, Transcript 28 July 2006, p. 62; DAB-063, Transcript 2 August 2006, p. 70; TRC-01, Transcript 16 October 2006, p. 101. 612 John Petrie, Transcript 5 October 2005, p. 67. 613 Indictment para. 22. 614 Indictment para. 23. 615 Indictment para. 23. 616 Prosecution Final Brief, paras. 501–504. 1296 part iv allegations against him, and notes that while 24 military personnel were charged with the offfence of treason by the Government of Sierra Leone, he was not one of them.617 The Defence adds while the Accused was PLO 2 in the Junta Government,618 he was too ill to carry out his functions.619 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.620 315. 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.621 The Accused testifĳied 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 offfĳicial duties.622 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.623 (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,624 numerous witnesses, both for the Prosecution and for the Defence, testifĳied that he was one of the individuals who planned and took part in the coup.625 Thus, the Trial Chamber is satisfĳied that the Accused Brima was involved in the 1997 coup. 317. The Trial Chamber is satisfĳied that in return for his participation in the coup, the Accused Brima was rewarded with specifĳic 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

617 Brima Defence Final Trial Brief, para. 167. 618 Brima Pre-Trial Brief, paras. 9, 14. 619 Alex Tamba Brima, Transcript 6 June 2006, pp. 58–61. 620 Brima Pre-Trial Brief, para. 14; Alex Tamba Brima, 6 June 2006, pp. 69–70. 621 Alex Tamba Brima, Transcript 6 June 2006, pp. 47–50. 622 Alex Tamba Brima, Transcript 6 June 2006, pp. 58–61; Transcript 8 June 2006, pp. 18–20. 623 Alex Tamba Brima, Transcript 8 June 2006, pp. 18–24. 624 Alex Tamba Brima, 6 June 2006, p. 32–33. Brima Final Brief, paras. 167–169. 625 TF1-033, Transcript 11 July 2005, p. 6; Gibril Massaquoi, Transcript 7 October 2006, p. 76; TF1- 334, Transcript 17 June 2005, p. 69; TF1-114, Transcript 14 July 2005, p. 118–119; DAB-079, Transcript 28 July 2006, p. 62, DAB-025, Transcript 28 July 2006, p. 112; TRC-01, Transcript 16 October 2006, p. 101; DAB-085, Transcript 20 July 2005, p. 52; DAB-079, Transcript 28 July 2006, pp. 62, 68, 69; DAB-085, Transcript 20 July 2006, p. 52; DAB-063, Transcript 2 August 2006, pp. 60–62. judgments 1297 and influence, the Trial Chamber found that there was only one governing council, namely the Supreme Council.626 Both Prosecution and Defence witnesses testi- fĳied that the Accused was on this Council627 and indeed the Accused himself concedes that he was on a governing council. The Trial Chamber is therefore satis- fĳied that the Accused was a member of the AFRC 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.628 319. 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.629 In its closing arguments, the Brima Defence clarifĳied that the Accused only said “If people call me that, fĳine, but I have never called myself Honourable.”630 The Trial Chamber is satisfĳied 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.631 (c) Principal Liaison Offfĳicer 2 320. The Accused does not dispute that he was appointed to the position of Principal Liaison Offfĳicer in the AFRC Government,632 but said that he was too ill to perform his duties.633 321. The offfĳice of the Principal Liaison Offfĳicer (PLO) was established by the AFRC government on 10 July 1997.634 According to the Decree establishing the offfĳice, 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].”635 The Trial Chamber is satisfĳied

626 Political Structure of the AFRC, paras. 273–285 supra. 627 TRC-01, Transcript 16 October 2006, p. 16; DAB-005, Transcript 12 October 2006, pp. 18–19. 628 TF1-045, Transcript 19 July 2005, pp. 71–72; Gibril Massaquoi, Transcript 7 October 2005, p. 83, 93; TF1-334, Transcript 16 May 2005, p. 57. Exhibit P- 34, “Minutes of an Emergency Council Meeting of the AFRC Held at State House on Monday 11 August 1997.” Exhibit P-69, “AFRC-Secretariat Minutes of Meeting held on 9 December 1997.” 629 Alex Tamba Brima, Transcript 3 July 2006 pp. 40–41. 630 Brima Defence Closing Statement, 7 December 2006, p. 108. 631 DAB-063, Transcript 2 August 2006, pp. 60–62; DAB-00512 October 2006, pp. 17–18. 632 Alex Tamba Brima, Transcript 6 June 2006, p. 56; Brima Defence Closing Statement, 7 December 2006, p. 104. 633 Alex Tamba Brima, Transcript 6 June 2006, pp. 41–42, 59. 634 Exhibit P-5.2, “Armed Forces Revolutionary Council (Establishment of Offfĳice of Principal Liaison Offfĳicer) Decree,” 1997, para. 3: “A Principal Liaison Offfĳicer shall be responsible for supervising, monitoring and co-ordinating the operations of any Department of State or such business of Government, as may from time to time be assigned to him by the Armed Forces Revolutionary Council.” 635 Exhibit P-5.2, “Armed Forces Revolutionary Council (Establishment of Offfĳice of Principal Liaison Offfĳicer) Decree,” 12 July 1997, para. 3. 1298 part iv that the Accused Brima was assigned to supervise the Ministries of Works and Labour; Customs and Excise, and the parastatals Sierratel and SALPOST.636 322. As a PLO 2, the Accused Brima reported to PLO 1, Abu Sankoh, and ultimately to SAJ Musa637 and the Chairman, Johnny Paul Koroma.638 323. Only one witness testifĳied that he saw the Accused in the hospital shortly after the coup. However, he said that the Accused was sufffering 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.639 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.640 Indeed, he testifĳied that he attended many meetings during this period.641 325. Thus, the Trial Chamber is satisfĳied on the Prosecution evidence adduced that while the Accused may have been ill during the AFRC Government period, he did not sufffer 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.642 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.643 327. Witness TF1-153 was appointed as a mines monitor by SAJ Musa.644 He testi- fĳied that the Accused Brima came to Kono with Sam Bockarie on one occasion to introduce the mines monitors to the community.645 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 difffĳiculties regarding the mines monitors and the mining.646 While the Brima Defence raised issues with regards to

636 Alex Tamba Brima, Transcript 6 June 2006, pp. 56–61. 637 TF1-334, Transcript 16 May 2005, pp. 99–101. 638 TF1-334, Transcript 16 May 2005, pp. 57, 99–101. 639 DAB-059, Transcript 27 September 2006, pp. 63–64. 640 Alex Tamba Brima, Transcript 6 June 2006, pp. 47–50, 56–58, 63. 641 Alex Tamba Brima, Transcript 6 June 2006, p. 76. 642 Prosecution Supplemental Pre-Trial Brief, 21 April 2004, paras. 22.c, 30. c, 250.b. 643 Alex Tamba Brima, Transcript 8 June 2006, pp. 18–24. 644 TF1-153, Transcript 22 September 2005, pp. 18–19. On cross-examination, the witness denied that the Accused Brima had been involved in the decision to send him to Kono, Transcript 23 September 2005, p. 38. 645 TF1-153, Transcript 23 September 2005, pp. 60–61. 646 TF1-153, Transcript 22 September 2005, pp. 19–23; Transcript 23 September 2005, p. 61. judgments 1299 the witness’s credibility and reliability,647 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 testifĳied 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.648 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.649 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.650 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 well651 but that he did not know the name of PLO 2.652 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 satisfĳied 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,653 but Witness DAB-059 saw Brima in Koidu Town sometime in December 1997.654 Witness TF1-153 also indicated that Brima’s visits to Kono District were sporadic.655 331. The Trial Chamber is satisfĳied 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

647 Brima Final Brief, para. 191. 648 TF1-153, Transcript 22 September 2005, pp. 60–61. 649 TF1-045, Transcript 19 July 2005, pp. 30–32; TF1-334, Transcript 17 May 2005, p. 17; DBK-063, Transcript 2 August 2006, pp. 68–69. 650 TF1-334, Transcript 17 May 2005, pp. 56–57; TF1-045, Transcript 19 July 2005, p. 32; George Johnson, Transcript 15 September 2005, p. 17. 651 TF1-045, Transcript 19 July 2005, p. 100. 652 TF1-045, Transcript 19 July 2005, p. 39. 653 Exhibit P-69, “AFRC-Secretariat, Minutes of Meeting held on the 9th December,” 1997. 654 DAB-059, Transcript 27 September 2006, p. 65. 655 TF1-153, Transcript 22 September 2005, p. 22. 1300 part iv it is clear that he was in Kono when ECOMOG ousted the AFRC government in Freetown. (e) Findings 332. The Trial Chamber is satisfĳied 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 satisfĳied that he was Principal Liaison Offfĳicer 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.”656 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.”657 334. 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 Kono658 In its closing arguments, the Prosecution conceded that only the Accused Kamara was present when the crimes were committed in Kono District.659 (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 1998.660 At trial, Brima testifĳied 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

656 Indictment, para. 24. 657 Prosecution Supplemental Pre-Trial Brief, para. 38.b, 87.b, 136.b, 201.b. 658 Prosecution Final Brief, para. 1051. 659 Prosecution Closing Statement, Transcript 7 December 2006, pp. 34–35. 660 Brima Pre-Trial Brief, para. 11. judgments 1301 for Kono.661 He escaped in July 1998 and made his way back to Kono immediately thereafter.662 336. Witnesses for both the Prosecution and the Defence confĳirmed that the Accused Brima was detained for an indeterminate period by the RUF in Kailahun in or about February 1998.663 He was captured in the village of Bendu in Kailahun District by RUF fĳighters 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.664 337. During the same period, the RUF commander Sam Bockarie arrested Johnny Paul Koroma in Kailahun District.665 The Accused Brima testifĳied 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.666 338. 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.667 (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 1998.668 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.”669 340. The Accused Brima maintains his alibi for this period, specifĳically testifying that he did not return to Kono District until 17 July 1998.670

661 Alex Tamba Brima, Transcript 8 June 2006, pp. 39–73. 662 Alex Tamba Brima, Transcript 8 June 2006, pp. 77–78. The witness did not specify the day on which he escaped but said that he immediately fled for Kono District. The journey took his three days and he arrived in Kono on 17 July 1998. 663 TF1-045, Transcript 19 September 2005, p. 100; TF1-334, Transcript 17 May 2005 p. 83, Transcript 19 May 2005, p. 8; DAB-033, Transcript 25 September 2006, pp. 49–51; DAB-059, Transcript 27 September 2006, pp. 70–72; DAB-142, Transcript 19 September 2006, pp. 18–19. 664 TF1-045, Transcript 19 July 2005, pp. 98–100. 665 TF1-045, Transcript 19 July 2005, pp. 98–100; DAB-059, Transcript 27 September 2006, pp. 81–82. 666 Alex Tamba Brima, Transcript 8 June 2006, pp. 67–69. 667 Responsibility of the Accused, Brima, infra. 668 Prosecution Final Brief, para. 1214. 669 Prosecution Final Brief, para. 601. 670 Brima Final Brief, paras. 209–210; Alex Tamba Brima, Transcript 8 June 2006, pp. 77–78, Transcript 12 June 2006, p. 16. 1302 part iv

341. Prosecution witnesses put the Accused Brima in Kono District in late April and early May 1998.671 Witnesses for the Defence confĳirmed that the Accused was detained and mistreated in Kailahun but could not say for how long he was detained.672 (c) Findings 342. The Trial Chamber is satisfĳied that in February 1998, the Accused Brima was detained for an indeterminate period by the RUF in Kailahun District.673 In late April or early May 1998, he travelled from Kailahun to Kono District.674 Upon arrival Brima took overall command of the AFRC troops based in Kono District675 Brima’s arrival in Kono District marked the departure of the AFRC troops from Kono District towards Mansofĳinia in Koinadugu District.676 343. 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.”677 345. 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.678

671 TF1-334, Transcript 20 June 2005, pp. 14–15; TF1-184, Transcript 27 September 2005, pp. 19–21; George Johnson, Transcript 15 September 2005, pp. 39–48; TF1-153, Transcript 22 September 2005, pp. 32, 57. 672 DAB-033, Transcript 25 September 2006, pp. 49–51; DAB-059, Transcript 27 September 2006, pp. 70–72; DAB-142, Transcript 19 September 2006, pp. 18–19. 673 TF1-334, Transcripts 17 June, 2005, pp. 45–46, 20 June 2005, pp. 14, 15; TF1 184, Transcript 27 September 2006, pp. 19–21; George Johnson., Transcript 15 September 2005, pp. 39–47. 674 TF1-334, Transcript 19 May 2005, pp. 7–8; Transcript 20 May 2005, pp. 27, 51; Transcript 17 June 2005, pp. 45–46; Transcript 20 June 2005, pp. 14–15. 675 TF1 334, Transcript 19 May 2005, pp. 7–8, Transcript 20 June 2005, pp. 14–15; George Johnson, Transcript 15 September 2005, pp. 39–47; TF1 184, Transcript 27 September 2006, pp. 19–21. 676 TF1-334, Transcript 20 May 2005, pp. 20, 38; George Johnson, Transcript 15 September 2005, p. 39. 677 Indictment, para. 24. 678 Prosecution Final Brief, para. 626. judgments 1303

(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.679 The Accused testifĳied 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 1998.680 347. The Accused further testifĳied 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 testifĳied 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.’681 348. The Accused Brima testifĳied 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 testifĳied that he was a member of a group of AFRC soldiers who travelled from Koinadugu District to ‘Colonel Eddie Town.’682 However, this witness did not state that he arrested Brima in Kono District. Instead, he testifĳied 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 AFRC soldiers.683 349. The Defence called three other witnesses to testify regarding the alleged arrest of the Accused, but their evidence was inconsistent. Witness DAB-109 testi- fĳied 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 testifĳied 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 testifĳied that he did not see any weapons on these men.684 350. Witness DAB-111 testifĳied that there were two men named ‘Tamba Brima’ in Yarya. One was the Accused and the second was the elder brother of the Accused.685

679 Brima Defence Final Brief, para. 208. 680 Alex Tamba Brima, Transcript 12 June 2006, p. 42. 681 Alex Tamba Brima, Transcript 12 June 2006, pp. 43–51. 682 DBK-012, Transcript 5 October 2006, pp. 107. 683 DBK-012, Transcript 5 October 2006, pp. 107–108; DBK-012, Transcript 9 October 2006, pp. 12–13. 684 DAB-109, Transcript 28 September 2006, pp. 87–88. 685 DAB-111, Transcript 27 September 2005, p. 21. 1304 part iv

One day during the rainy season in 1998,686 the witness was in Yarya with a third brother of the Accused named Komba when a group of soldiers wearing head- bands 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.687 Soon after this incident, the witness saw the Accused arrive in a vehicle looking for his brother Komba.688 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.689 351. The Trial Chamber notes that both Defence witnesses DAB-109 and DAB-111 testifĳied that the brother of the Accused, Komba Brima, was shot by a man named ‘Junior.’ This was corroborated by Prosecution witness TF1-334 who testifĳied that Komba Brima was shot by Prosecution witness George Johnson aka ‘Junior Lion.’690 The Defence argued that George Johnson bore ill will towards the Accused on account of this incident and his evidence is therefore unreliable.691 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 testifĳied that she was raped and abducted by witness George Johnson in Kono District and taken to Koinadugu District.692 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.’693 The group left from Kurubonla and passed through Mansofĳinia 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.694 353. While the discrepancies between the accounts of events in Yarya as described by the Accused and Witnesses DAB-109 and DAB-110 are not signifĳicant enough on their own to discredit the alibi of the Accused, witnesses placed

686 DAB-111, Transcript 27 September 2005, pp. 21–23. 687 DAB-111, Transcript 27 September 2005, pp. 23–24. 688 DAB-111, Transcript 27 September 2005, p. 28. 689 DAB-111, Transcript 27 September 2005, p. 29. 690 TF1-334, Transcript 20 June 2005, p. 18. 691 Brima Defence Final Trial Brief, para. 199. 692 DAB-159, Transcript 29 September 2005, pp. 43–49. 693 DAB-159, Transcript 29 September 2005, pp. 50–51. 694 DAB-159, Transcript 29 September 2005, pp. 52–55. judgments 1305 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.695

(b) Command of the Advance Troops from Mansofĳinia to Rosos 354. The Prosecution submits that the Accused was the overall commander of the advance team of AFRC troops that travelled from Mansofĳinia in Koinadugu District to Rosos in Bombali District.696 The Defence position is that other known individuals, specifĳically, FAT Sesay, Colonel Eddie, and others, were the Com- manders of this advance team.697 355. 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 Mansofĳinia in Koinadugu District to Camp Rosos in Bombali District. i. TF1-334 357. The Brima Defence submits that Prosecution witness TF1-334 was not in a sufffĳiciently high position within the AFRC structure to have access to the types of details he described in his evidence.698 The Defence argues that the witness was not credible because he derived benefĳits from testifying.699 358. The witness revealed that he sought and received an assurance from the Offfĳice of the Prosecutor that he would not be prosecuted for any crimes he had committed.700 The witness explained in detail that he was privy to substantially more information than his rank would suggest because his superior, a high ranking AFRC soldier, was illiterate and relied on the witness to read and understand

695 TF1-334, Transcript 23 May 2005, p. 32; TF1-184, Transcript 27 September 2005, pp. 58–59; George Johnson, Transcript 15 September 2005, p. 41; DAB-095, Transcript 20 September 2006, pp. 55–56. 696 Prosecution Final Brief, paras. 1419, 1421. See TF1-334, Transcript 23 May 2005, p. 32; Gibril Massaquoi, Transcript 7 October 2005, p. 115; TF1-184, Transcript 27 September 2005, pp. 58–59; George Johnson, Transcript 15 September 2005, p. 41; corroborated by Defence Witness DAB-095, Transcript 20 September 2006, pp. 55–56. 697 DBK-113, Transcript 13 October 2006, pp. 18–19, 100; DBK-037, Transcript 3 October 2006, pp. 94–96; DBK-131, Transcript 26 October 2006, p. 41; DBK-012, Transcript 5 October 2006, pp. 105–106; DAB-033, Transcript 25 September 2006, pp. 55–56; DAB-095, Transcript 20 September 2006, pp. 56–58; DAB-156, Transcript 29 September 2006, pp. 78–79. 698 Brima Final Brief, paras. 196–197. 699 Brima Final Brief, para. 197. 700 TF1-334, Transcript 16 June 2005, p. 17. 1306 part iv all relevant documentation.701 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 fĳive 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 fĳinds that his evidence throughout was consistent and any discrepancies minor. In addition, the witness presented a truthful demeanour. Thus, the Trial Chamber fĳinds that he was a credible and reliable witness. 360. Witness TF1-334 testifĳied that the Accused Brima was the overall commander of the AFRC advance team that moved from Mansofĳinia to Camp Rosos.702 ii. TF1-184 361. The Brima Defence submits that the Witness TF1-184 is unreliable because there were signifĳicant 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.”703 362. 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.704 The witness further believed that Brima, unlike Musa, was not loyal to the Army.705 However, numerous witnesses testifĳied that Musa’s death was an accident.706 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 signifĳicant inconsistencies between his evidence in chief and his prior statement to the Prosecution. In addition, the Trial Chamber fĳinds that the witness was not shaken on cross-examination and was generally corroborated by other witnesses. 363. Witness TF1-184 testifĳied that the Accused Brima was the “senior man” of the team that SAJ Musa sent to establish a base camp in Bombali District.

701 TF1-334, Transcript 16 May 2005, pp. 12–13. 702 TF1-334, Transcript 20 May 2005, pp. 86–88. 703 Brima Final Brief, para. 192. 704 TF1-184, Transcript 29 September 2005, p. 56. 705 TF1-184, Transcript 29 September 2005, p. 61. 706 TF1-153, Transcript 22 September 2005, pp. 93–94; George Johnson, Transcript 16 September 2005, p. 10; DAB-095, Transcript 21 September 2006, pp. 9–10; DAB-156, Transcript 29 September 2006, pp. 59–61; DAB-023, Transcript 31 July 2006, pp. 77–79; DBK-131, Transcript 10 October 2006, pp. 87–88. judgments 1307

He added that ‘Bazzy’ and ‘Five-Five’ went with him but did not specify their positions.707 iii. 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 signifĳicant discrepancies between his evidence at trial and the evidence he provided to the Prosecution in a prior statement.708 365. The Trial Chamber observes that there were occasional signifĳicant discrepancies between the evidence witness TF1-033 gave at trial and his prior statements to the Prosecution. For example, the witness testifĳied 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.709 The witness also testifĳied 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 signifĳicantly, 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.710 The Trial Chamber also notes that Prosecution witnesses TF1-334 and George Johnson gave accounts of events at Tombodu, which difffered substantially from the account provided by witness TF1-033.711 366. The evidence of the witness regarding the troop restructure at Mansofĳinia sufffered from the defĳiciencies typical in his testimony: it was overly general in comparison to the testimony of other witnesses present at the same events, but became specifĳic when the presence or actions of one of the Accused were concerned. The Trial Chamber is satisfĳied, however, that while the witness appears on occasion to have exaggerated fĳigures 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.

707 TF1-184, Transcript 27 September 2005, pp. 19–21; Transcript 29 September 2005, p. 40. 708 Brima Final Brief, para. 189. 709 TF1-033, Transcript 11 July 2005, pp. 139–142. See further Factual Findings, Enslavement, paras. 1319–1322 infra. 710 TF1-033, Transcript 11 July 2005, pp. 144–148. 711 See Factual Findings, Unlawful Killings, paras. 851–854 infra for discussion of this evidence. 1308 part iv

367. Witness TF1-033 travelled with the AFRC soldiers as they moved from Kono District to Koinadugu and on to Camp Rosos.712 The witness described the Accused Brima during this period saying “he was always at the helm of our afffairs when he says ‘move’ everybody is on his toes.”713 iv. TF1-153 368. The Brima Defence submits that witness TF1-153 was not credible or reliable, arguing that there were signifĳicant discrepancies between his evidence at trial and the evidence he provided to the Prosecution in a prior statement.714 Although the witness was not entirely clear in his examination in chief, the Trial Chamber fĳinds that inconsistencies between the evidence he gave at trial and his prior statement to the Prosecution were not of sufffĳicient 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 Mansofĳinia to Rosos.715 The witness testifĳied that Musa told him that he had instructed the Accused Brima and Kamara to fĳind a base camp between Makeni and Port Loko716 and that he had sent the Accused Kanu along to support them.717 Musa referred to the Accused Brima as the commander of this advance team.718 v. George Johnson 370. The Trial Chamber has considered the objections raised by the Defence on the credibility and reliability of George Johnson.719 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 demeanour 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 Mansofĳinia to Rosos and he described the Accused Brima as overall commander of the advance team.720

712 TF1-033, Transcript 11 July 2005, pp. 9–26. 713 TF1-033, Transcript 11 July 2005, p. 20. 714 Brima Final Brief, para. 191. 715 TF1-153, Transcript 22 September 2005, p. 64. 716 TF1-153, Transcript 22 September 2005, pp. 55–59. 717 TF1-153, Transcript 22 September 2005, p. 57. 718 TF1-153, Transcript 22 September 2005, p. 57. 719 Brima Final Brief, paras. 198–200. 720 George Johnson, Transcript 15 September 2005, pp. 50, 59. judgments 1309 b. Defence Witnesses 372. DBK-131,721 DAB-012,722 DAB-033,723 DAB-095724 and DAB-156725 all testifĳied 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 Mansofĳinia to ‘Colonel Eddie Town.’ 374. Witnesses DBK-113 testifĳied that FAT Sesay was the senior AFRC soldier at Mansofĳinia and that he was the overall commander of the AFRC troops during the journey to Rosos.726 At Rosos, FAT remained the overall commander and Col. Eddie was his Deputy.727 However, the witness said that the troops were split up into several groups. The fĳirst group, the ‘fĳighting 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 ‘fĳighting 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 fĳirst or second groups.728 375. 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 testi- fĳied that no child soldiers were abducted between Mansofĳinia and Rosos, that he did not see child soldiers at Rosos729 and that he did not hear of rapes or ‘bush wives.’730 The Trial Chamber observes that both Prosecution and Defence witnesses described crimes committed by troops as they advanced from Mansofĳinia to

721 DBK-131, Transcript 26 October 2006, p. 41–44. The witness said that FAT Sesay was the overall commander, and that King, Eddie, George Johnson and Tito were part of the group. 722 DBK-012, Transcript 5 October 2006, pp. 105–106. The witness testifĳied that FAT was the overall commander of the advance team, that Col. Eddie was his adjutant and that Captain King was the third in command. 723 DAB-033, Transcript 25 September 2006, pp. 55–56. The witness testifĳied that FAT Sesay, George Johnson, and Eddie were the overall commanders of the advance team. 724 DAB-095, Transcript 20 September 2006, pp. 56–58. The witness testifĳied that Eddie was the overall commander of the advance team, and that he left with George Johnson and O-Five. 725 DAB-156, Transcript 29 September 2006, pp. 78–79. The witness testifĳied that George Johnson was the overall commander of the advance team. 726 DBK-113, Transcript 13 October 2006, 28–29. 727 DBK-113, Transcript 13 October 2006, pp. 25–27, 103. The witness testifĳied that he was at Mandaha with Joseph Tamba, Bioh, FAT, Junior Lion and Arthur. 728 DBK-113, Transcript 13 October, pp. 20–21. 729 DBK-113, Transcript 13 October 2006, p. 77. 730 DBK-113, Transcript 13 October 2006, pp. 78, 84. 1310 part iv

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 testifĳied 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.731 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 Mansofĳinia to ‘Colonel Eddie Town.’732 The witness also testifĳied that he saw no children or civilians at Camp Rosos,733 although on cross-examination he stated that he saw the children of the fĳighting forces there.734 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 fĳinds the evidence of the Prosecution witnesses who placed the Accused in Koinadugu and Bombali Districts during the relevant Indictment period signifĳicantly more reliable, consistent and compelling, and thus more persuasive, than that of the Defence witnesses. (c) Findings 378. The Trial Chamber fĳinds 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 Mansofĳinia in Koinadugu District to Camp Rosos in Bombali District. 379. The Trial Chamber is satisfĳied that upon arrival in Koinadugu District, a number of AFRC commanders including the Accused Brima and Kamara went to meet with SAJ Musa,735 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,736 all agree that it was decided at the

731 DBK-037, Transcript 3 October 2006, pp. 94–96. 732 DBK-037, Transcript 3 October 2006, pp. 95–97. 733 DBK-037, Transcript 4 October 2006, p. 57. 734 DBK-037, Transcript 5 October 2006. p. 26. 735 TF1-334, Transcript 20 May 2005, pp. 83–84; George Johnson, Transcript 15 September 2005, pp. 47–48; TF1-184, Transcript 27 September 2005, p. 20; TF1-153, Transcript 22 September, p. 57. 736 TF1-334 stated that the meeting took place at Mongor Bendu: Transcript 20 May 2005, pp. 86–87. Witnesses George Johnson and TF1-184 recalled the meeting being at Krubola/Kurubonla: George Johnson, Transcript 15 September 2005, pp. 47–48, TF1-184, Transcript 29 September 2005, p. 20; TF1-153 was not present at the time. He testifĳied that SAJ Musa told him that he met ‘Gullit’ and ‘Bazzy’ at Krubola but organised to meet them subsequently at Yiraia: Transcript 22 September 2005, p. 57. judgments 1311 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.737 Musa informed Brima that Kanu would accompany the advance team.738 Numerous witnesses, both for the Prosecution and for the Defence, testifĳied 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.739 380. Following this meeting, the Accused Brima called a muster parade at which he reorganised the troops and promoted individual offfĳicers.740 The promotions were based on the ability of the commanders to control their men.741 Brima promoted himself and the Accused Kamara to the rank of Brigadier.742 He also appointed the Accused Kanu as Chief of Stafff, and promoted him to the rank of Colonel.743 The Accused Kamara remained Brima’s second in command.744 381. Approximately three days after the meeting with Musa, Brima and the troops under his command left Mansofĳinia and headed south back into Kono District before heading north-west towards a region in Bombali district bordering Port Loko and Kambia districts.745 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 Yifĳin 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,746 Bornoya, Karina, Pendembu747 and Mateboi before arriving at Rosos.748 382. 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

737 TF1-184, Transcript 27 September 2005, pp. 19–21; TF1-334, Transcript 20 May 2005, pp. 86–87. 738 TF1-334, Transcript 20 May 2005, pp. 86–87; TF1-153, Transcript 22 September 2005, p. 57. 739 TF1-334, Transcript 13 June 2005, pp. 26–27, 49; TF1-184, Transcript September 2005, p. 8; George Johnson, Transcript 19 September 2005, p. 128; DBK-113, Transcript 13 October 2006, p. 128; DBK-037, Transcript 3 October 2006, p. 104; DAB-095, Transcript 20 September 2006, p. 51; DAB-033, Transcript 25 September 2006, p. 89; DBK-012, Transcript 6 October 2006, p. 4; DBK-131, Transcript 10 October 2006, p. 43. 740 TF1-334, Transcript 20 May 2005, pp. 88–99; George Johnson, Transcript 15 September 2005, p. 48. 741 George Johnson, Transcript 19 September 2005, p. 65. 742 TF1-334, Transcript 20 May 2005, p. 88. 743 TF1-334, Transcript 20 May 2005, pp. 92,100–102. 744 TF1-334, Transcript 20 May 2005, pp. 89, 94, 100–102. 745 Exhibit P-30(a), “Map of Sierra Leone,” indicating the approximate route of the troops as testi- fĳied by witness George Johnson, Transcript 15 September 2005, pp. 52, 59. See also TF1-033, Transcript 11 July 2005, p. 31. 746 Also referred to as Magbengbeh. 747 Also referred to as Gbendembu. 748 Exhibit P-30(a), “Map of Sierra Leone”; George Johnson, Transcript 15 September 2005, p. 44. 1312 part iv

Brima’s group when it came to reinforce the advance team in July or August 1998.749 In its factual fĳindings on the crimes committed in Bombali District, the Trial Chamber has made fĳindings 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 Mansofĳinia he had no contact with Musa until he reached Camp Rosos and even then communication was cursory.750 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.751 (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.752 386. 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.’753 387. While a number of Defence witnesses testifĳied that the Accused were under arrest in ‘Colonel Eddie Town,’754 these witnesses gave substantially diffferent accounts, thereby casting doubt on their credibility and reliability.755

749 TF1-334, Transcript 24 May 2005, pp. 91–92, 97, 107; George Johnson, Transcript 15 September 2005, p. 74. 750 TF1-334, Transcript 24 May 2005, pp. 31–32; TF1-153, Transcript 22 September 2005, p. 61. 751 George Johnson, Transcript 15 September 2005, p. 68; TF1-334, Transcript 24 May 2005, pp. 72–73. 752 Brima Final Brief, paras. 219–222; Kamara Final Brief, para. 107; Kanu Final Brief, para. 443. 753 Prosecution Final Brief, para. 660. 754 DAB-095, Transcript 20 September 2006, pp. 58–65; Transcript 21 September 2005, pp. 2–5; DAB-156, Transcript 29 September 2006, pp. 55–56; DBK-012, Transcript 5 October 2006, p. 109; DAB- 023, Transcript 31 July 2006, pp. 63–66; DBK-131, Transcript 10 October 2006, pp. 58–60. 755 For example, witness DAB-033 testifĳied that he saw the Accused in a hut blocked by a rice box one day, and that the following day they were released into open detention: Transcript 25 September 2006, pp. 61–62, 66; DBK-131 testifĳied that he saw Brima and Kanu detained in a ‘box’ at Eddie Town, but that SAJ Musa had them released into open detention: Transcript 10 October 2006, pp. 58–59; judgments 1313

388. Prosecution witness George Johnson testifĳied 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.’756 Johnson further testifĳied 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.”757 The Trial Chamber is satisfĳied 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.758 390. On 23 December 1998, the troops attacked a weapons depot in Benguema. SAJ Musa was killed when a bomb exploded during this operation.759 391. The Prosecution submits that following the death of SAJ Musa, the Accused Brima re-established his position as overall commander of the AFRC troops.760 392. Brima testifĳied 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 1999761 and stayed with Brima’s family.762 Therefore, the Accused Brima and Kanu were not in Freetown during the January 1999 invasion.

DBK-012 said that when he arrived in Eddie Town in August 1998, the three Accused had been tortured and locked in a wooden box for rice bags: Transcript 5 October 2006, pp. 108–109; DBK-037 testifĳied that the Accused were detained in a ‘booth house’ in August 1998: Transcript 3 October 2007, pp. 98–99. Witness DBK-113 testifĳied that three soldiers were arrested at Eddie Town in October/ November 1998: Transcript 13 October 2006, p. 27; DAB-023 testifĳied that George Johnson arrested the three Accused for ‘bewitching the movement” and sent them to be held in a dungeon: Transcript 31 July 2006, pp. 63–66; DAB-096 said that George Johnson said that the Accused had been arrested for trying to escape and that they were held in chains: Transcript 18 September 2006, pp. 110, 118. 756 George Johnson, Transcript 21 September 2005, p. 59. 757 George Johnson, Transcript 16 September 2005, p. 3. 758 Exhibit P-30(a), “Map of Sierra Leone,” indicating the approximate route of the troops as testi- fĳied by witness George Johnson. 759 TF1-184, Transcript 27 September 2005, p. 49; TF1-153, Transcript 22 September 2005, pp. 93–94; George Johnson, Transcript 16 September 2005, p. 10; TF1-334, Transcript 13 June 2005, pp. 51–55; DAB-095, Transcript 21 September 2006, pp. 9–10; DAB-156, Transcript 29 September 2006, pp. 59–61; DAB-023, Transcript 31 July 2006, pp. 77–79; DBK-131, Transcript 10 October 2006, pp. 87–88. 760 Prosecution Final Brief, para. 694. 761 Alex Tamba Brima, Transcript 15 June 2006, pp. 27–31. 762 Alex Tamba Brima, Transcript 15 June 2006, pp. 83–85. 1314 part iv

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.763 394. The position of the Defence is two-fold: fĳirst, that the Accused was not present during the January 1999 invasion of Freetown,764 and second, that the AFRC troops were led by other known individuals, specifĳically FAT Sesay,765 George Johnson also known as ‘Junior Lion,’766 or ‘O-Five.’767 395. 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.”768 (a) Prosecution Witnesses 396. Prosecution witness TF1-334 testifĳied 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.769 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 AFRC soldiers that he was now overall commander and promoted himself to the rank of Lieutenant General.770 He then restructured the troops.771 The witness estimated the troop strength to be about 1500 men.772 397. George Johnson testifĳied 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.773 The witness corroborated the evidence of witness

763 Prosecution Final Brief, para. 1576. 764 DAB-095, Transcript 21 September 2006, p. 21; DAB-156, Transcript 29 September 2006, p. 21. 765 DAB-033, Transcript 25 September 2006, p. 73; DBK-005, Transcript 5 October 2006, pp. 58–59; DBK-131, Transcript 10 October 2006, pp. 88–91; DBK-012, Transcript 6 October 2006, pp. 22, 36; DBK- 037, Transcript 3 October 2006, p. 110; DBK-113, Transcript 13 October 2006, pp. 41, 85; DBK-005, Transcript 5 October 2006, pp. 61–63; DBK 113, Transcript 13 October 2006, pp. 42, 52. 766 George Johnson, Transcript 15 September 2005, p. 4. 767 DAB-023, Transcript 31 July 2006, pp. 79–81; Transcript 3 August 2006, pp. 103–104. 768 Brima Final Brief, para. 202. 769 TF1-334, Transcript 13 June 2005, pp. 57–58. 770 TF1-334, Transcript 13 June 2005, p. 59. 771 TF1-334, Transcript 13 June 2005, pp. 60–85; See Military Structure of the AFRC Fighting Force, paras. 602–608 infra. 772 TF1-334, Transcript 13 June 2005, p. 85. 773 George Johnson, Transcript 16 September 2005, pp. 11–13. judgments 1315

TF1-334 that Brima restructured the troops. The witness was promoted from the rank of Major to the rank of Lieutenant Colonel.774 398. 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.775 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.776 399. 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.777 While George Johnson testifĳied that this meeting took place at Orugu village rather than Allen Town, the Trial Chamber is satisfĳied 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.778 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.779 401. 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.780 Johnson provided a great deal of detail about troop movements around the city during the invasion.781 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 Bockarie782 while he was at State House. The witness also

774 George Johnson, Transcript 16 September 2005, p. 15. 775 TF1-334, Transcript 13 June 2005, p. 100. 776 TF1-334, Transcript 13 June 2005, pp. 101–103. 777 George Johnson, Transcript 16 September 2005, pp. 16–17. 778 TF1-334, Transcript 13 June 2005, p. 104. 779 TF1-334, Transcript 14 June 2005, pp. 4–47, 54–73, 82–89, 96–100, 115–121; Transcript 15 June 2005, pp. 3–4, 14. 780 George Johnson, Transcript 16 September 2005, pp. 22, 27. 781 George Johnson, Transcript 16 September 2005, pp. 22–26, 29–34. 782 George Johnson, Transcript 16 September 2005, p. 41; TF1-334, Transcript 14 June 2005, pp. 48–49. 1316 part iv detailed the commission of crimes by troops associated with the Accused.783 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 testifĳied that the Accused Brima became overall commander of the troops at Benguema following the death of SAJ Musa.784 The witness confĳirmed that Brima met with the troops at Orugu village before the fĳinal onslaught on Freetown and that he ordered the release of the prisoners at Pademba Road prison.785 The witness also testifĳied about the commission of crimes by AFRC troops during this period.786 403. Witnesses TF1-184 and TF1-033 also gave evidence that the Accused Brima became Commander in Chief of the AFRC forces at Benguema following the death of SAJ Musa787 and described the commission of crimes by AFRC troops in Freetown.788 404. Prosecution Witness Gibril Massaquoi was incarcerated at Pademba Road Prison from 17 October 1997 until 6 January 1999.789 Upon his release, he was informed that the Accused Brima had led the troops into Freetown.790 He then saw the three Accused at State House.791 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 stafff and the Accused Kamara was the “commander in charge of the men and all their weapons.”792 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 AFRC soldiers.793 The witness also corroborated evidence on the commission of crimes in the Freetown area by AFRC troops.794 405. 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.795 The Trial Chamber further observes that the witness

783 George Johnson, Transcript 16 September 2005, pp. 21–22, 38, 43–44, 52–57. 784 TF1-153, Transcript 22 September 2005, p. 94. 785 TF1-153, Transcript 22 September 2005, p. 97. 786 TF1-153, Transcript 22 September 2005, p. 100; Transcript 23 September 2005, pp. 9, 18, 22–25. 787 TF1-184, Transcript 27 September 2005, p. 56; TF1-033, Transcript 11 July 2005, pp. 53–55. 788 TF1-184, Transcript 27 September 2005, pp. 61–65, 71–75, 80–84; TF1-033, Transcript 11 July 2005, pp. 63–67. 789 Gibril Massaquoi, Transcript 7 October 2005, pp. 108–110. 790 Gibril Massaquoi, Transcript 7 October 2005, p. 114. 791 Gibril Massaquoi, Transcript 7 October 2005, p. 115. 792 Gibril Massaquoi, Transcript 7 October 2005, pp. 119–121. 793 Gibril Massaquoi, Transcript 10 October 2005, pp. 6–9. 794 Gibril Massaquoi, Transcript 10 October 2005, pp. 12–13, 17–24, 27–28. 795 Gibril Massaquoi, Transcript 11 October 2005, p. 145. judgments 1317 obfuscated on cross-examination in response to questions about Prosecution promises of immunity in return for the witness’ testimony in proceedings.796 Moreover, the witness testifĳied that he blamed the AFRC Government for his 14 month imprisonment.797 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 testifĳied that he did not see the three Accused after the troops left Waterloo, in the weeks prior to the Freetown invasion.798 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.799 407. Witness DAB-156 testifĳied 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 December 1998 or early January 1999.800 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.801 In cross-examination, she clearly stated that it was ‘O-Five’ and ‘Eddie.’802 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 testi- fĳied that they did not see any of the three Accused at State House or during the invasion of Freetown.803 The Trial Chamber will briefly consider the evidence of each of these witnesses on the command structure in Freetown. 409. Witness DBK-113 testifĳied that the commanders in the attack on Freetown were Col. FAT, Junior Lion, Col. Tito, Col. Eddie, Colonel Foday Bah, Colonel Sesay,

796 Gibril Massaquoi, Transcript 11 October 2005, pp. 50–55. 797 Gibril Massaquoi, Transcript 11 October 2005, p. 101. 798 DAB-095, Transcript 21 September 2006, p. 21. 799 DAB-095, Transcript 21 September 2006, pp. 15–18. 800 DAB-156, Transcript 29 September 2006, pp. 61, 85. 801 DAB-156, Transcript 29 September 2006, pp. 62–63. 802 DAB-156, Transcript 29 September 2006, p. 83. 803 DBK-113, Transcript 16 October 2006, pp. 46, 49–52; DBK-037, Transcript 4 October 2006, pp. 30, 45; DSK-113, Transcript 12 October 2006, pp. 117–119; DAB-095, Transcript 21 September 2006, pp. 15, 38, 64; DAB-033, Transcript 25 September 2006, pp. 67–68, 70–71; DBK-005, Transcript 12 October 2006, pp. 32–33. See also DAB-156, who testifĳied that she did not see the accused after leaving Waterloo, although it is not clear from her evidence precisely where she went after Waterloo: Transcript 29 September 2006, p. 21. 1318 part iv

“Changa Bulunga” and “many more.”804 He does not refer to any discussion among the troops regarding who took over command after SAJ Musa’s death.805 Under cross-examination, the witness stated that Colonel FAT was the overall commander and his deputy was Colonel Eddie. The witness testifĳied 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.”806 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.”807 The Trial Chamber notes that in a combat situation, any number of commanders may be observed giving orders. The Trial Chamber thus fĳinds these observations vague and insufffĳicient 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 testifĳied 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.’808 He also testifĳied 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.809 411. Witnesses DBK-037 testifĳied 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.810 ‘Eddie’ was the Adjutant and ‘O-Five’ was the Operations Commander, while ‘Junior Lion’ was MP Commander.811 Witness DBK-037 testifĳied that FAT Sesay’s military rank was lieutenant.812 412. Witness DAB-095, who claimed to be ‘FAT’s security, testifĳied that at Eddie Town ‘FAT’ was a colonel.813 The witness testifĳied that ‘Colonel Eddie’ was the ‘main commander’ in Freetown, although the witness subsequently stated that ‘Colonel

804 DBK-113, Transcript 16 October 2006, pp. 38–41, 85. 805 DBK-113, Transcript 16 October 2006, pp. 38–40. 806 DBK-113, Transcript 16 October 2006, p. 85. 807 DBK-113, Transcript 16 October 2006, p. 85. 808 DBK-005, 5 October 2006, pp. 58–59. 809 DBK-005, 5 October 2006, pp. 62–63. 810 DBK-037, Transcript 3 October 2006, pp. 108–110; DBK-037, Transcript 4 October 2006, pp. 12–14, 16–18. 811 DBK-037, Transcript 3 October 2006, pp. 108–110. 812 DBK-037, Transcript 4 October 2006, p. 39. 813 DAB-095, Transcript 20 September 2006, p. 66. judgments 1319

Eddie’ and FAT Sesay were both commanders in Freetown.814 He explained that positions would change and admitted that he was not very ‘au fait’ with the details of the positions.815 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.816 He also did not know that the Accused were members of the AFRC.817 413. Witness DAB-033’s testimony regarding the troop structure was clearer. He testifĳied 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.818 FAT Sesay was ultimately the overall commander to Freetown.819 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,820 but agreed that in a prior statement that he saw the three Accused in Makeni after the retreat was correct.821 414. Witness DBK-012 testifĳied 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 testifĳied that ‘O-Five” became overall commander of the troops in the wake of SAJ Musa’s death at Benguema.822 The witness said that he heard ‘O-Five’ order the attack on Freetown823 but that immediately after arriving in Freetown ‘O-Five’ sent him to the hospital for treatment of a wound. He spent four or fĳive days in the hospital before joining the troops at State House.824 The witness said that he did not see the three Accused after the troops passed through Masiaka on the way to Freetown.825 416. 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.826

814 DAB-095, Transcript 28 September 2006, p. 64. 815 DAB-095, Transcript 28 September 2006, pp. 60–61. 816 DAB-095, Transcript 28 September 2006, pp. 15–17. 817 DAB-095, Transcript 28 September 2006, pp. 57–58. 818 DAB-033, Transcript 25 September 2006, pp. 66–67, 99–100. 819 DAB-033, Transcript 25 September 2006, p. 73. 820 DAB-033, Transcript 2 October 2006, pp. 33–34. 821 DAB-033, Transcript 25 September 2006, pp. 110–112. 822 DAB-023, Transcript 31 July 2006, pp. 79–81. 823 DAB-023, Transcript 31 July 2006, pp. 83–84. 824 DAB-023, Transcript 31 July 2006, pp. 85–86. 825 DAB-023, Transcript 31 July 2006, p. 87. 826 DBK-131, Transcript 10 October 2006, p. 88 1320 part iv

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.827 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.828 417. Witnesses DBK-037, DBK-113, DSK-113, DAB-033, DBK-005, DBK-126 and DAB-023 testifĳied 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.829 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.830 Witness DBK-037 and DAB-033 stated that AFRC soldiers always aimed for military targets and did not attack civilians.831 418. 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.832 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 testifĳied 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.833 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

827 DBK-131, Transcript 10 October 2006, pp. 90–91. 828 DBK-131, Transcript 10 October 2006, p. 91. 829 DBK-037, Transcript 4 October 2006, pp. 32–34, 37; DBK-113, Transcript 16 October 2006, pp. 114–116; DSK-113, Transcript 12 October 2006, p. 110; DAB-033, Transcript 2 October p. 103; DBK-005, Transcript 12 October 2006, pp. 35–36; DBK-126, Transcript 25 October 2006, pp. 57–58; DAB-023, Transcript 3 August 2006, pp. 120–121. 830 DBK-012, Transcript 9 October 2006, p. 46; DBK-012, Transcript 6 October 2006, p. 80. 831 DBK-037, Transcript 4 October 2006, pp. 32–34, 37; DAB-033, Transcript 2 October pp. 100–105. 832 General Requirements of Articles 2, 3 and 4 of the Statute, para. 236 supra. 833 DBK-005, 5 October 2006, pp. 53–58; DBK-012, Transcript 6 October 2006, pp. 31–36; DBK-012, Transcript 9 October 2006, pp. 40–43; DBK-131 Transcript 26 October 2006, pp. 53–54. judgments 1321 would have taken one to two months.834 The Trial Chamber is not satisfĳied with these explanations. (c) Findings 420. The Trial Chamber is satisfĳied 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.835 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.836 This operation was unsuccessful. The Accused Brima and his troops then retreated to Newton and Benguema in the Western Area.837

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.838 423. The Accused Brima testifĳied 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.839 (a) Findings 424. On the basis of the evidence of Prosecution witnesses TF1-334,840 George Johnson,841 Gibril Massaquoi842 and TF1-153843 regarding the movement of AFRC troops after leaving Freetown, the Trial Chamber is satisfĳied that the three Accused

834 DBK-005, Transcript 12 October 2006, p. 27; DBK-012, Transcript 18 October 2006, p. 56; DBK- 131 Transcript 26 October 2006, pp. 55–56. 835 TF1-334, Transcript 13 June 2005, pp. 104–112; George Johnson, Transcript 16 September 2005, pp. 20–26. 836 TF1-334, Transcript 15 June 2005, pp. 108–112. 837 TF1-334, Transcript 15 June 2005, pp. 108–112; George Johnson, Transcript 15 September 2005, pp. 60–62. 838 Prosecution Closing Arguments, Transcript 7 December 2006, pp. 46–47. 839 See Role of Accused, Brima, para. 391, supra. 840 TF1-334, Transcript 14 June 2005, pp. 108–133; Transcript 15 June 2005, pp. 10–19, 24–25. 841 George Johnson, Transcript 16 September 2005, pp. 58–67. 842 Gibril Massaquoi, Transcript 10 October 2005, pp. 38–44. 843 TF1-153, Transcript 23 September 2005, pp. 26–28. 1322 part iv retreated from Freetown to Newton and Benguema in the Western Area in late January 1999. The Trial Chamber is further satisfĳied that in approximately early April 1999, the AFRC troop separated into two groups, with the Accused Brima and Kanu moving with some fĳighters to Makeni in Bombali District. Insufffĳicient evidence has been adduced for any fĳindings 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,”844 and that he was a “Public [sic] Liaison Offfĳicer (PLO)”845 and a member of the “Junta governing body.”846 It further charges that the Accused Kamara was a “commander of AFRC/RUF based in Kono District,”847 “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”848 and “a commander of AFRC/RUF forces which attacked Freetown on 6 January 1999.”849 426. In its Pre-Trial Brief, the Kamara Defence submitted that the Accused Kamara was a junior offfĳicer on duty, and that “his duties were […] predominantly confĳined to the task of receiving and executing orders from his immediate superiors in line with military discipline, not otherwise as claimed by the Prosecution.850 In its Final Brief, the Kamara Defence submits that the Accused Kamara played ‘no active part in combat’ during the AFRC government period.851 It further argues that although it has not presented a defence of alibi, witnesses testifĳied that the Accused was in his village in Port Loko during the period that Prosecution witnesses alleged he was in other areas,852 and that he was under arrest in ‘Colonel Eddie Town.’853 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.854 Finally, the Defence asserts that the main

844 Indictment para. 26. 845 Indictment para. 26. 846 Indictment para. 26. 847 Indictment para. 27. 848 Indictment para. 27. 849 Indictment para. 27. 850 Kamara Pre-Trial Brief, para. 17. 851 Kamara Final Brief, para. 105. 852 Kamara Final Brief, para. 105. 853 Kamara Final Brief, para. 105. 854 Kamara Final Brief, para. 105. judgments 1323

Prosecution witnesses were neither credible nor reliable,855 and refers to the numerous witnesses who supported the alibi of the Accused Brima thereby challenging the credibility of prosecution witnesses.856

2. Personal Background of Kamara 427. Ibrahim ‘Bazzy’ Kamara was born on 7 May 1968857 or 1970.858 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.859 He is married and has two children.860 428. 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.861 Both Prosecution862 and Defence witnesses863 referred to him by this name. The Accused Kamara was also known as ‘IB’864 and his radio call sign was ‘Dark Angel.’865

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.866

855 Kamara Final Brief, para. 106. 856 Kamara Final Brief, para. 107. 857 Indictment, para. 3. 858 Kamara Defence Opening Statement, Transcript 5 June 2006, pp. 43–44. 859 TF1- 334, Transcript 17 May 2005, p. 28. 860 Alex Tamba Brima, Transcript 19 June 2006, p. 38. 861 Kamara Defence Opening Statement, 5 June 2006, p. 44. The Accused Brima denies that the Accused Kamara was called Ibrahim Bazzy Kamara: Transcript 19 June 2006, p. 32; Transcript 20 June 2006, p. 13; Transcript 29 June 2006, p. 71. 862 See TF1-334, Transcript 16 May 2005, p. 100; TF1-033, Transcript 11 July 2005, pp. 6, 12; George Johnson, Transcript 15 September 2005, pp. 8–9; TF1-184, Transcript 29 September 2005, p. 97; Gibril Massaquoi, Transcript 7 October 2005, p. 77. Documentary evidence also refers to Kamara as ‘Bazzy’: Exhibit P-6, “The Sierra Leone Gazette,” 4 September 1997, listing members of the Armed Forces Revolutionary Council Secretariat; Exhibit P- 7, “The Sierra Leone Gazette,” 18 September 1997, listing members of the Armed Forces Revolutionary Council; Exhibit P-34, “Minutes of an Emergency Council Meeting of the AFRC,” 16 August 1997; Exhibit P-34, “Minutes of an Emergency Council Meeting of the AFRC,” 16 August 1997; Exhibit P-69, “AFRC-Secretariat, Minutes of Meeting held on the 9th December 1997.” 863 DAB-018, Transcript 7 September 2006, p. 70; DAB-123, Transcript 12 September 2006, pp. 21–22; DAB-042, Transcript 15 September 2006, p. 90; DAB-096, Transcript 18 September 2006, p. 112; DAB- 156, Transcript 29 September 2006, p. 56; DBK-037, Transcript 4 October 2006, p. 73; DBK-129, Transcript 9 October 2006, p. 27; DAB-005, Transcript 12 October 2006, p. 9; DBK-012, Transcript 9 October 2006, pp. 55, 61; TRC-01, Transcript 16 October 2006, p. 104. 864 TF1-334, Transcript 16 May 2005, p. 75; Alex Tamba Brima, Transcript 19 June 2006, p. 34. 865 TF1-334, Transcript 18 May 2005, p. 31; George Johnson, Transcript 15 September 2005, p. 9. 866 Indictment paras. 25–26. 1324 part iv

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.867 431. 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 efffective control over the perpetrators of these crimes.868 (a) Involvement in the 25 May 1997 Coup 432. The Trial Chamber notes that numerous witnesses, both for the Prosecution and for the Defence, testifĳied that the Accused Kamara was one of the individuals who planned and took part in the coup.869 The Trial Chamber is therefore satisfĳied that Kamara was involved in the 1997 coup. 433. The Trial Chamber is satisfĳied that in return for his participation in the coup, the Accused Kamara was rewarded with specifĳic 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 fĳinds that the Accused Kamara was a member of the Supreme Council of the AFRC Government.870 It further concludes that Kamara was an ‘Honourable.’ 871 (c) Principal Liaison Offfĳicer 3 435. The Accused Kamara does not deny that he held the position of PLO3. The Trial Chamber is satisfĳied that the Accused Kamara was PLO 3 during the Junta period.872

867 Prosecution Final Brief, para. 508. 868 Kamara Final Brief, paras. 116–117, 134–135. 869 TF1-033, Transcript 11 July 2005, p. 6; Gibril Massaquoi, Transcript 7 October 2006, p. 76; TF1- 334, Transcript 17 June 2005, p. 69; TF1-114, Transcript 14 July 2005, p. 118–119; DAB-079, Transcript 28 July 2006, p. 62, DAB-025, Transcript 28 July 2006, p. 112; TRC-01, Transcript 16 October 2006, p. 101; DAB-085, Transcript 20 July 2005, p. 52; DAB-079, Transcript 28 July 2006, pp. 62, 68, 69; DAB-085, Transcript 20 July 2006, p. 52; DAB-063, Transcript 2 August 2006, pp. 60–62. 870 Exhibit P-6, “The Sierra Leone Gazette,” 4 September 1997, listing members of the Armed Forces Revolutionary Council Secretariat; Exhibit P-7, “The Sierra Leone Gazette,” 18 September 1997, listing members of the Armed Forces Revolutionary Council; Gibril Massaquoi, Transcript 7 October 2005, p. 77. 871 DAB-063, Transcript 2 August 2006, pp. 60–62; DAB-005, 12 October 2006, pp. 17–18. 872 Exhibit P-34 “Minutes of an Emergency Council Meeting of the AFRC held at State House on Monday 11 August 1997”; Exhibit P-69 “AFRC-Secretariat Minutes of Meeting held on 9 December judgments 1325

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 offfĳice called ‘Queen Elizabeth Quay.’ 873 437. The Trial Chamber is satisfĳied that that the Accused Kamara attended coordination meetings of high level members of the AFRC and RUF.874 The Trial Chamber notes that Prosecution witness TF1-045 testifĳied that he attended one such meeting in September 1997 at Wilberforce at which the Accused Kamara and Kanu were present.875 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, referring 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.”876 (d) Findings 438. The Trial Chamber is satisfĳied 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 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.”877 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

1997”; DBK-012, Transcript 5 October 2006, p. 80; DBK-129, Transcript 9 October 2006, pp. 60–63; DBK- 005, Transcript 5 October 2006, p. 36; Alex Tamba Brima, Transcript 3 July 2006, p. 41; George Johnson, Transcript 15 September 2005, p. 20. 873 George Johnson, Transcript 15 September 2005, p. 20; Transcript 20 September 2005, p. 9. 874 TF1-045, Transcript 19 July 2005, pp. 71–72; Gibril Massaquoi, Transcript 7 October 2005, pp. 37, 83, 86, 93; Exhibit P-34, “Minutes of an Emergency Council Meeting of the AFRC held at State House on Monday 11 August 1997”; Exhibit P-69, “AFRC Secretariat, Minutes of Meeting held on 9 December 1997.” 875 TF1-045, Transcript 19 July 2005, pp. 58–59. 876 TF1-045, Transcript 21 July 2005, pp. 21–24. 877 Indictment, para. 27. 1326 part iv

District wide chain of command to Denis Mingo of the RUF.878 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.”879 441. The Prosecution concedes that the Accused Kamara was not in Kailahun District during this period.880 442. Numerous Defence witnesses testifĳied that they were in Kono during the relevant period and did not see or hear of the Accused Kamara.881 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.882 443. A signifĳicant number of Defence witnesses testifĳied that it was the RUF who were in control of Kono District during the relevant period and that if AFRC fĳighting forces participated in operations in the region, they did so on the orders of the RUF and not of their own volition.883 (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 Offfĳicer to the Accused Kamara during the AFRC government884 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 Kamara885 throughout the period covered in the Indictment. Thus, the witness was familiar with Kamara’s activities. 445. While Prosecution witness George Johnson testifĳied that the Accused Kamara participated in the attack on Koidu Town,886 witness TF1-334 does not

878 Prosecution Final Brief, paras. 1270–1272. 879 Prosecution Closing Arguments, Transcript 7 December 2006, p. 34. 880 Prosecution Final Brief, paras. 1397–1405. 881 DBK-113, Transcript 13 October 2006, p. 48; DAB-098 Transcript 4 September 2006, pp. 47–48; DAB-018, Transcript 7 September 2006, p. 44–45; DAB-023, Transcript 31 July 2006, p. 105; DAB-095, Transcript 28 September 2006, p. 26. The following witnesses were unaware of Kamara’s whereabouts: DAB-107, Transcript 8 September 2006, pp. 79–80; DAB-039,Transcript 5 September 2006, p. 90. 882 Prosecution Final Brief, para. 1275. 883 DBK-113, Transcript 13 October 2006, p. 66; DAB-098, Transcript 4 September 2006, p. 28; DAB- 018, Transcript 7 September 2006, pp. 7–9, 12–15; DAB-023, Transcript 31 July 2006, p. 105. 884 George Johnson, Transcript 15 September 2005, p. 9. 885 Name admitted under seal: Exhibit P-12. 886 George Johnson, Transcript 15 September 2005, p. 31. judgments 1327 place Kamara in Kono District until Johnny Paul Koroma had departed from Kailahun District.887 446. Witness TF1-334 testifĳied 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.888 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.889 447. From Makeni, the troops moved towards Kono District. The witness was in an advance convoy which cleared the way of Kamajor ambushes. He testifĳied that when the troops met Kamajor resistance at Five-Five Spot in Koidu Town, Johnny Paul Koroma withdrew to Masingbeh, a safer location nearby.890 The witness testifĳied that the AFRC/RUF soldiers captured Koidu Town and that RUF commander Denis Mingo assumed the position of overall commander of both factions.891 448. 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 testifĳied 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.892 449. 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 testifĳied that the Accused Kamara and Dennis Mingo attacked Kono together; specifĳically that Dennis Mingo commanded the troops and the Accused Kamara was his Deputy.893 450. 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.

887 TF1-334, Transcript 17 May 2005, pp. 108–114. 888 TF1-334, Transcript 17 May 2005, pp. 81–83. 889 TF1-334, Transcript 17 May 2005, pp. 85– 86. 890 TF1-334, Transcript 17 May 2005, pp. 90–100. 891 TF1-334, Transcript 17 May 2005, pp. 100–103, 108. 892 TF1-334, Transcript 17 May 2005, pp. 108–114. 893 George Johnson, Transcript 15 September 2005, pp. 30–32, 38. 1328 part iv

(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 testifĳied 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 fĳighting forces.894 Although Denis Mingo was superior to the Accused Kamara,895 witness TF1-334 and the other AFRC soldiers began to receive their orders from him.896 Kamara remained the most senior commander of the AFRC soldiers in Kono until the arrival of the Accused Brima in mid-May 1998.897 452. Witness George Johnson testifĳied 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.898 Wit- ness TF1-334 similarly testifĳied that after the capture of Kono, Kamara took over the authority for giving promotions to AFRC fĳighters from Johnny Paul Koroma.899 He gave promotions to Lieutenant Lagah, Lieutenant ‘Tito,’ Lieutenant ‘Savage,’ Lieutenant Kallay, Lieutenant Bakarr and Lieutenant ‘Mosquito.’900 453. While the AFRC fĳighting forces in Kono were subordinate to the RUF, Prosecution witnesses provided signifĳicant 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,901 and Sam Bockarie, who was based in Kailahun, sent weapons and ammunition to the troops in Kono which were distributed among both factions.902 Thus, according to Prosecution witnesses, the AFRC and the RUF had “cordial relations” and worked together.903 (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.

894 George Johnson, Transcript 15 September, p. 38. TF1-334, Transcript 18 May pp. 21–24. 895 TF1-334, Transcript 18 May 2005, p. 24. 896 TF1-334, Transcript 18 May 2005, pp. 21–22. 897 TF1-334, Transcript 19 May 2005, p. 7; Transcript 20 May 2005, p. 56; George Johnson, Transcript 15 September 2005, p. 39. 898 George Johnson, Transcript 15 September 2005, pp. 35–36, 46–47; George Johnson, Transcript 20 September 2005, p. 14. 899 TF1-334, Transcript 19 May 2005, p. 50. 900 TF1-334, Transcript 19 May 2005, p. 51. 901 TF1-334, Transcript 18 May 2005, pp. 24–33; Transcript 19 May 2005, pp. 3–4. 902 George Johnson, Transcript 15 September 2005, p. 43. 903 TF1-334, Transcript 19 May 2005, pp. 5–7. judgments 1329

455. Witness DAB-018 testifĳied 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 fĳighting 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.”904 The RUF would issue passes on which was written United Front of Sierra Leone allowing members of the AFRC fĳighting force to travel from one area to another.905 456. Witness DAB-059 testifĳied 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.906 457. 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 offfĳicers 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.907 458. Witness DBK-117 testifĳied that in Kono District the AFRC had no direct command and that they only took orders from the RUF.908 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 fĳired back but were outnumbered by the RUF.909 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.910 459. Despite their evidence of a period of cooperation, even the Prosecution witnesses point to a deterioration of relations between the two factions during the

904 DAB-018, Transcript 7 September 2006, pp. 11–13. 905 DAB-018, Transcript 7 September 2006, p. 14. See also witness DBK-113, who testifĳied that the relationship between the two factions was “complicated”: Transcript 13 October 2006, p. 14. 906 DAB-059, Transcript 27 September 2006, pp. 92–93. See also DAB-033, Transcript 25 September 2006, p. 52–53. 907 DAB-095, Transcript 20 September 2006, pp. 42–44. 908 DBK-117, Transcript 16 October 2006, pp. 19, 114–116. 909 DBK-117, Transcript 16 October 2006, pp. 16–17. 910 TF1-334, Transcript 19 May 2005, pp. 3–4. 1330 part iv latter part of the relevant period in Kono District. According to witness TF1-334, on one occasion Morris Kallon (RUF) informed the AFRC fĳighting 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.911 The witness concluded that although there was no outright fĳighting between the two factions relationship the rapport was “not good. The relationship was no longer cordial.”912 (c) Findings 460. The Trial Chamber fĳinds that the Defence witness evidence is not inconsistent with that of witness TF1-334 who similarly testifĳied that there were a number of RUF commanders operating in Kono District who reported to Denis Mingo.913 461. 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 testifĳied that the AFRC troops had no choice but to participate in this arrangement. Whether the Accused Kamara had efffective control over the AFRC troops in Kono District will be discussed elsewhere in the Judgement.914 (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,915 and travelled with him to Koinadugu District where both men met with SAJ Musa. There the two Accused and Musa defĳined the new objectives of the AFRC rebel movement.916

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,

911 TF1-334, Transcript 19 May 2005, pp. 9–10. 912 TF1-334, Transcript 21 June 2005, p. 14. 913 TF1-334, Transcript 19 May 2005, p. 37. 914 Responsibility of the Accused, Kamara, paras. 1864–1887. 915 George Johnson, Transcript 15 September 2007, p. 39. TF1-334, Transcript 20 May 2005, p. 57. 916 See Context of the Alleged Crimes, para. 190. judgments 1331 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.”917 In its Final Brief, the Prosecution submits that during the advance from Mansofĳinia 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.918 464. 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.919 (a) Kamara’s Command Position within the AFRC Troops from Mansofĳinia to Rosos 465. The Prosecution evidence shows that Accused Kamara was Brima’s Deputy at Mansofĳinia and throughout the journey to Eddie Town.920 466. 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.921 In the new structure established following the meeting the Operations Commander and the Provost- Marshal were required to report to the Accused Kamara.922 At Rosos, the Accused Kamara was based at ‘headquarters,’ from where operations were planned and orders issued.923 Witness TF1-334 also testifĳied that the Accused Kamara was one of the commanders who made decisions regarding the brigade.924 467. Witness TF1-334 testifĳied 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.925 468. In conclusion, the Trial Chamber is satisfĳied that the Accused Kamara was the Deputy Commander of the AFRC fĳighting forces in Koinadugu and Bombali

917 Indictment, para. 27. 918 Prosecution Final Trial Brief, para. 626. 919 Role of Accused, Brima, paras. 372–377, supra. 920 TF1-334, Transcript 20 May 2005, pp. 87–88; TF1-334, Transcripts 23 and 24 May 2005; George Johnson, Transcript 15 September 2005, pp. 51, 59. 921 George Johnson, Transcript 15 September 2005, p. 47. 922 See Military Structure of AFRC Fighting Force, para. 576, supra; George Johnson, Transcript 15 September 2005, p. 49. 923 George Johnson, Transcript 15 September 2005, p. 60. 924 TF1-334, Transcript 20 May 2005, pp. 95, 98–99. 925 TF1-334, Transcript 23 May 2005, p. 107. 1332 part iv

Districts. It further recalls its fĳinding 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.926

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 1999.927 471. 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.928 472. 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 fĳighting forces invading Freetown. Based on the same assessment of witness reliability and credibility, the Trial Chamber is satisfĳied that the Accused Kamara was Brima’s Deputy.929 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 Village930 in which the invasion of Freetown was discussed.931 The Accused Kamara was present at headquarters at State House immediately following its capture on 6 January 1999.932 He attended a meeting of senior commanders when an attack on Wilberforce, where ECOMOG forces were based, was discussed.933 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

926 Role of Accused, Brima, paras. 385–388, supra. 927 Prosecution Final Brief, para. 1588. 928 Kamara Final Brief, paras. 210–218. 929 TF1-334, Transcript 13 June 2005, p. 60. George Johnson, Transcript 16 September 2005, pp. 12–13. TF1-184, Transcript 27 September 2005, p. 56. 930 Referred to by witness TF1-334 as ‘Allentown.’ 931 George Johnson, Transcript 16 September 2005, pp. 16–17. 932 TF1-334, Transcript 14 June 2005, pp. 3–4; George Johnson, Transcript 16 September 2005, p. 39. 933 Gibril Massaquoi, Transcript 7 October 2005, pp. 119–120. judgments 1333 did not.934 The Accused Kamara spoke with Sam Bockarie on the radio prior to the capture of State House.935 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.936 After the loss of State House, the Accused Kamara gave an order to the AFRC troops to burn houses.937 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.938 (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 satisfĳied that in this position he had a signifĳicant 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 fĳighters in the area commonly referred to as “the West Side.”939 The Defence position is that other known individuals were the commanders in the area.940

934 George Johnson, Transcript 16 September 2005, pp. 27–29. 935 TF1-184, Transcript 29 September 2005, p. 61. 936 TF1-334, Transcript 14 June 2005, p. 47. 937 TF1-184 Transcript 30 September 2005, p. 9 938 George Johnson, Transcript 16 September 2005, pp. 60–61. 939 See for example, Prosecution Final Brief, paras. 1753–1754; Gibril Massaquoi, Transcript 10 October 2005, p. 44: the witness testifĳied that when he arrived on the West Side in early June 1999, ‘Bazzy’ was the commander there. TF1-334, Transcript 15 June 2005, pp. 13–24: The witness testifĳied that following the retreat from Freetown the Accused Brima remained the commander of the retreating troops, including during the month that the troops spent at Newton on the West Side. Soon after ECOMOG attacked, the Accused Brima and Kamara went to join Denis Mingo (Superman) in Makeni. Soon after the Accused Kamara received a phone call from Sam Bockarie telling him that the Accused Brima was no longer commander and that he, the Accused Kamara, would now be commander on the West Side. During this short period Kamara moved from Newton in the Western Area to Port Loko District. George Johnson, Transcript 16 September 2006, pp. 62–64: the witness corroborated the evidence that from Newton, the Accused Brima and the Accused Kanu went to Makeni, and the Accused Kamara moved to Mamah/Mamamah in Port Loko District. At this point he became overall commander of these troops. TF1-153, Transcript 23 September 2005, p. 27: witness says that he saw Brima and Kanu at Masiaka following the retreat from Freetown. At this time, Bazzy was at Gberibana, at a place called the West Side with Tito, Bomb Blast, and Junior Lion. Bazzy separated from Brima and Kanu because he was disgruntled with the RUF, and decided it was better to work without them. 940 DAB-033, Transcript 25 September 2006 p. 10: stating that the overall commander at Westside was Foday Kallay and his second in command was George Johnson (Junior Lion). DBK-012, 6 October 2006, pp: 43–44: the Witness and George Johnson (Junior Lion) led the troops in Rogberi on the West Side. However, once there FAT Sesay was the overall commander and Junior Lion was second in c ommand. DBK-131, Transcript 10 October 2006: witness said he arrived on the West Side during May/June 1999. At that time, George Johnson (Junior Lion) was the overall commander in the area, 1334 part iv

(a) The Presence of the Accused in Port Loko District (i) Prosecution Witnesses 476. Witness George Johnson testifĳied that all three Accused retreated with the troops to Benguema in the Western Area.941 They then moved to Waterloo where together with the RUF they planned a second attack on Freetown.942 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.943 George Johnson testifĳied that he accompanied the Accused Kamara and a group of troops to Four Mile, to Mamamah,944 near Mile 38.945 At this point the Accused Kamara was in command and he gave orders to the troops at Mamamah which were obeyed.946 From Mamamah they went to Gberibana, an area in Port Loko District colloquially known as the ‘West Side.’947 477. 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.948 He testifĳied that while he was at Waterloo, troops from Freetown arrived in successive groups and all three Accused eventually came to Waterloo.949 478. From Lunsar, the witness travelled to Waterloo with Mingo on several occasions.950 He also testifĳied about the second unsuccessful attack on Freetown. Subsequently, at Lunsar in early April, infĳighting broke out between Issa Sesay and Denis Mingo of the RUF, the eventual result of which was that Mingo controlled

and Tito was the second in command. Foday Kallay arrived later and took over command when he arrived. DBK-037, Transcript 4 October 2006, p. 42: the commanders on the West Side were FAT Sesay, George Johnson (Junior Lion) and Junior Sherrifff. DBK-129, Transcript 9 October 2006, pp. 19, 85, 88–90, 95: The Witness arrived at Four Mile on the West Side in February 1999. George Johnson (Junior Lion) was the overall commander in the area and did not report to the Accused Kamara. Johnson issued the order to make the area of Mamamah fearful. The witness was present when he issued the order. The second in command was Tito. Johnson remained in charge of the West Side until Foday Kallay arrived. Witness was there until the ceasefĳire was announced. The witness never saw Kamara and said Kamara had no command over any troops on the West Side. DAB-095, Transcript 28 September 2006, pp. 71–72: the witness stated that Foday Kallay was the commander of the West Side. 941 George Johnson, Transcript 16 September 2005, p. 58–59. 942 George Johnson, Transcript 16 September 2005, pp. 60–61. Gibril Massaquoi corroborated the evidence of George Johnson regarding the second and unsuccessful attempt to capture Freetown: Transcript 10 October 2005, pp. 34–35. 943 George Johnson, Transcript 16 September 2005, pp. 62–63. 944 Also referred to as Mammah. 945 George Johnson, Transcript 16 September 2005, p. 63. 946 George Johnson, Transcript 16 September 2005, pp. 64–66. 947 George Johnson, Transcript 16 September 2005, p. 67. 948 Gibril Massaquoi, Transcript 10 October 2005, pp. 30–32. 949 Gibril Massaquoi, Transcript 10 October 2005, pp. 31–32. 950 Gibril Massaquoi, Transcript 10 October 2005, pp. 33–34. judgments 1335

Lunsar and Makeni and Sesay fled to Kono.951 At an unspecifĳied time in April, Mingo contacted the Accused Brima and requested his assistance in the fĳight 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.952 479. Massaquoi testifĳied that around this time, Kamara’s troops were pushed back by ECOMOG from Mile 38 to the Okra Hills Area.953 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.’954 480. 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.955 (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 testifĳied that Foday Kallay was not in the West Side.956 Witness DAB-095 testifĳied that Foday Kallay was the commander in the West Side.957 Witness DAB-033 testifĳied that Foday Kallay was the overall commander and Junior Lion was second in command.958 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.959 Witnesses DBK-037 and DBK-012 were in the West Side and testifĳied that Junior Lion was second in command to overall commander FAT Sesay.960 Witnesses DBK-131 and DBK-129 were in the West Side and testifĳied that Junior Lion was the overall commander and Tito was second in command but Foday Kallay arrived later and took over command.961 Witness DBK-129 stated that he never saw Kamara and said Kamara had no command over any troops in the West Side.962

951 Gibril Massaquoi, Transcript 10 October 2005, pp. 35–38. 952 Gibril Massaquoi, Transcript 10 October 2005, pp. 39–40. 953 Gibril Massaquoi, Transcript 10 October 2005, pp. 40. 954 Gibril Massaquoi, Transcript 10 October 2005, p. 44. 955 TF1-153, Transcript 23 September 2005, pp. 26–28. 956 DBK-037, Transcript 4 October 2006, p. 42. 957 DAB-095, Transcript 28 September 2006, p. 74 958 DAB-033, Transcript 25 September 2006, pp. 108–109. 959 DAB-033, Transcript 2 October 2006. 960 DBK-037, Transcript 4 October 2006, pp. 18–19, 50–51; DBK-012, Transcript 6 October 2006, pp. 43–44. 961 DBK-131, Transcript 10 October 2006, p. 93; DBK-129, Transcript 9 October 2006, pp. 19, 85, 88–90, 95. 962 DBK-129, Transcript 9 October 2006, pp. 19, 85, 88–90, 95. 1336 part iv

482. Witness DBK-012 testifĳied 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 Sherifff alias ‘Cambodia.’ They went on the operation around 27 April 1999.963 This witness denied that AFRC troops attacked Mamamah, stating that they bypassed it to avoid ECOMOG forces stationed there.964

(iii) Findings 483. As the witnesses who testifĳied about Port Loko are the same witnesses who testifĳied 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.965 484. The Trial Chamber is satisfĳied that upon withdrawing from Newton 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 testifĳied that in approximately early April 1999, after the retreat from Mamamah 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.’966 The AFRC fĳighting forces then under the Accused Kamara, including the abducted civilians, numbered over 700.967 ‘Bazzy’ appointed himself the Chief Commander.968 The witness added that Prosecution witness George Johnson, known as ‘Junior Lion,’ was the Operational Commander.969 486. George Johnson’s testimony on the command structure in Port Loko District, although less detailed, generally corroborates that of witness TF1-334. He testifĳied that Kamara was in command of a group of AFRC troops that went to Four Mile and Mamamah, near Mile 38.970 The witness describes a series of orders given by the Accused Kamara to the troops at Mamamah which were obeyed.971

963 DBK-012, Transcript 6 October 2006, pp. 44–45. 964 DBK-012, Transcript 6 October 2006, p. 93. 965 See Role of the Accused, Brima, paras. 355–377, supra. 966 TF1-334, Transcript 15 June 2005, pp. 24–25. 967 TF1-334, Transcript 15 June 2005, p. 31. 968 TF1-334, Transcript 15 June 2005, pp. 25–27. 969 TF1-334, Transcript 15 June 2005, p. 26. 970 George Johnson, Transcript 16 September 2005, p. 63. 971 George Johnson, Transcript 16 September 2005, pp. 64–67. judgments 1337

From Mamamah they went to Gberibana, in the ‘West Side.’972 At the ‘West Side,’ Kamara called a meeting at which he restructured the troops and made appointments.973 487. The Trial Chamber notes that Witness TF1-153 also testifĳied that ‘Bazzy’ was the commander in the West Side. In cross-examination it emerged that the witness, in a prior statement, stated that ‘Papa’ was the commander and ‘Bazzy’ and Bio were his deputies, although he also stated that all three were commanders.974 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 testifĳied 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,975 in cross-examination stated 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.976 The witness testifĳied 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.977 490. Witness DAB-033, a soldier with the SLA promoted to the rank of corporal in 1996,978 testifĳied that in February 1999, he went together with Prosecution witness George Johnson to Four Mile.979 George Johnson was in charge of the troops at Four Mile. A religious council requested that the AFRC release child soldiers, and the witness testifĳied 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.980 On cross-examination, the witness testifĳied 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 testifĳied that he knew this from

972 George Johnson, Transcript 16 September 2005, p. 67. 973 George Johnson, Transcript 16 September 2005, p. 69. 974 TF1-153, Transcript 23 September 2005, pp. 90–91. 975 DAB-095, Transcript 20 September 2006, pp. 4–7. 976 DAB-095, Transcript 28 September 2006, pp. 70–74. 977 DAB-095, Transcript 20 September 2006, pp. 15–18. 978 DAB-033, Transcript 25 September 2006, pp. 38, 83. 979 DAB-033, Transcript 25 September 2006, pp. 77–78. 980 DAB-033, Transcript 25 September 2006, pp. 80–81. 1338 part iv radio communications he heard from February through April 1999.981 However, the witness also testifĳied in cross-examination that as he was not at the West Side, he did not know if Kamara was the commander.982 491. Witness DBK-037, a soldier in the SLA983 testifĳied 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.984 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.985 According to the witness, during that time Junior Lion was under the authority of “FAT” who was the commander at West Side, not Kamara.986 492. Considering the structure of the AFRC troops at that time, the Trial Chamber notes the evidence of Defence witness DBK-012 who testifĳied 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 1989/1990,987 testifĳied that after the invasion of Freetown in 1999, he retreated to Benguema 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,988 placing him in Port Loko District in approximately mid-March or early April 1999. He testifĳied that the Accused Kamara was not at Four Mile at this time.989 The witness testifĳied 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.’990 The witness testifĳied that at West Side, it was FAT Sesay who was in command and George Johnson who was second in command;991 however, on cross-examination he testi- fĳied that Johnson was overall commander at the West Side.992 He testifĳied 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 offfensive at Manaarma,

981 DAB-033, Transcript 25 September 2006, pp. 108–110. 982 DAB-033, Transcript 2 October 2006, p. 106. 983 DBK-037, Transcript 3 October 2006, pp. 75–80. 984 DBK-037, Transcript 4 October 2006, pp. 18–19. 985 DBK-037, Transcript 4 October 2006, p. 51. 986 DBK-037, Transcript 4 October 2006, pp. 50–54. 987 DAB-012, Transcript 5 October 2006, pp. 74–75. 988 DAB-012, Transcript 6 October 2006, pp. 38–41. 989 DAB-012, Transcript 6 October 2006, p. 41. 990 DAB-012, Transcript 6 October 2006, pp. 41–43. 991 DAB-012, Transcript 6 October 2006, pp. 43–44. 992 DAB-012, Transcript 9 October 2006, p. 76. judgments 1339 ordered the witness to kill a woman who was suspected of having distributed arms and ammunition to the Gbethis, and was present during the offfensive against ECOMOG in Port Loko.993 The witness testifĳied that he did not see the Accused Kamara at West Side nor did he hear that he was there.994 494. DBK-131 testifĳied that he was a commander with the AFRC fĳighting forces during the attack on Freetown and thereafter.995 On cross-examination he testi- fĳied 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.996 495. Witness DBK-129 testifĳied 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.’997 496. 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 testifĳied that he was only present in Port Loko District immediately prior to the cease fĳire and DAB-033 who testifĳied 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 testifĳied that Foday Kallay was overall commander at the West Side. However, the Trial Chamber is satisfĳied that the evidence only indicates Foday Kallay may have assumed the position of senior command but only following the relevant period. Witness DAB-095 testifĳied that Foday Kallay was the commander in the West Side, but the witness only arrived in Port Loko District immediately prior to the cease- fĳire. Witness DAB-033 testifĳied 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 testifĳied that initially Junior Lion was overall commander and that Foday Kallay arrived later and took over command. Witness DBK-131 testifĳied that he was a “West Side Boy” under the command of Foday Kallay which the Trial Chamber fĳinds consistent with the evidence of Prosecution Witness TF1-334 who testifĳied 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

993 DAB-012, Transcript 6 October 2006, pp. 44–49 994 DAB-012, Transcript 6 October 2006, p. 49. 995 DBK-131 26 October 2006, p. 59. 996 DBK-131 26 October 2006, pp. 61–62. 997 DBK-129, Transcript 9 October 2006, pp. 19, 85, 88–90, 95. 1340 part iv 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 diffferent 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 testifĳied that FAT Sesay was the overall commander at the ‘West Side.’ However, the Trial Chamber fĳinds 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.’998 The Trial Chamber fĳinds 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 fĳinds that more senior commanders were also active. (iii) Findings 500. The Trial Chamber is satisfĳied 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.”999 It also alleges that he was a “member of the Junta governing body, the AFRC Supreme Council.”1000 It further charges that he was “a senior commander of the AFRC/RUF forces in Kono District”1001 between mid February 1998 and about 30 April 19981002 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.”1003 Finally, it alleges that the Accused Kanu, together with the Accused Brima and

998 DBK-012, Transcript 18 October 2006, p. 17. 999 Indictment para. 28. 1000 Indictment para. 29. 1001 Indictment para. 30. 1002 Indictment para. 30. 1003 Indictment para. 30. judgments 1341

Kamara “was also one of three commanders of AFRC/RUF forces during the attack on Freetown on 6 January 1999.”1004 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 Indictment1005 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.1006

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.1007 Kanu joined the Sierra Leone Army on 3 December 1990 at the Benguema Training Camp, Freetown, Western Area.1008 He was a Corporal at the time of the coup in May 1997.1009 504. The Kanu Defence does not dispute that the Accused Kanu was nicknamed ‘Five-Five’ after the last two digits of his regimental identifĳication 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.1010

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.1011 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.”1012 It therefore asks the Chamber to fĳind that the Accused was liable for planning, instigating or otherwise aiding and abetting enslavement and the crimes committed in Kenema, Bo and Kailahun Districts.1013

1004 Indictment para. 30. 1005 Kanu Final Brief, para. 366. 1006 Kanu Final Brief, paras. 267–279. 1007 Indictment, para. 5. 1008 Exhibit D 11, “Discharge Book.” 1009 Exhibit D 11, “Discharge Book.” 1010 Kanu Defence Closing Arguments, Transcripts 8 December 2006, p. 3–6. 1011 Indictment, paras. 29–30. 1012 Prosecution Final Brief, para. 515. 1013 Prosecution Final Brief, para, 520. 1342 part iv

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.1014 In addition, he was not in a position to command and/or control the individuals responsible for the commission of the crimes.1015 (a) Involvement in the 25 May 1997 Coup 507. The Trial Chamber notes that numerous witnesses, both for the Prosecution and for the Defence, testifĳied that the Accused Kanu was one of the individuals who planned and took part in the coup.1016 The Trial Chamber is therefore satis- fĳied that Kanu was involved in the 1997 Coup. 508. The Trial Chamber is satisfĳied 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 fĳinds that the Accused Kanu was a member of the Supreme Council during the AFRC junta.1017 It further concludes the Accused was an ‘Honourable.’1018 (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.1019 In addition, TF1-019 testifĳied 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.1020 Defence witness DAB-042 also testi- fĳied that Kanu addressed a meeting in Koidu town in which he encouraged the

1014 Kanu Defence Final Brief, para. 367. 1015 Kanu Defence Final Brief, paras. 366–384. 1016 TF1-033, Transcript 11 July 2005, p. 6; Gibril Massaquoi, Transcript 7 October 2006, p. 76; TF1- 334, Transcript 17 June 2005, p. 69; TF1-114, Transcript 14 July 2005, p. 118–119; DAB-079, Transcript 28 July 2006, p. 62, DAB-025, Transcript28 July 2006, p. 112; TRC-01, Transcript 16 October 2006, p. 101; DAB-085, Transcript 20 July 2005, p. 52; DAB-079, Transcript 28 July 2006, pp. 62, 68, 69; DAB-085, Transcript 20 July 2006, p. 52; DAB-063, Transcript 2 August 2006, pp. 60–62. 1017 Exhibit P- 6, “The Sierra Leone Gazette,” 4 September 1997, listing members of the Armed Forces Revolutionary Council Secretariat; exhibit P- 7, “The Sierra Leone Gazette,” 18 September 1997, listing members of the Armed Forces Revolutionary Council; Gibril Massaquoi, Transcript 7 October 2005, p. 77; 1018 DAB-063, Transcript 2 August 2006, pp. 60–62; DAB-005, 12 October 2006, pp. 17–18. 1019 TF1-045, Transcript 19 July 2005, pp. 64–66, 71–72; Gibril Massaquoi, Transcript 7 October 2005, pp. 37, 83, 86, 93; exhibit P-69, “AFRC Secretariat, Minutes of Meeting held on 9 December 1997.” TF1- 184, Transcript 30 September 2005, p. 36. 1020 TF1-019, Transcript 30 June 2005, pp. 85–87. judgments 1343 cleaning and upkeep of the town.1021 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.1022

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 […].”1023 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,”1024 a point it reiterates in its Final Brief.1025 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.1026 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 fĳindings on the Role of the Accused in Kono District.

1021 DAB-042, Transcript 15 September 2006, pp. 89, 96. 1022 TF1-334, Transcript 17 May 2005, pp. 70–71, 86. 1023 Indictment, para. 30. 1024 Prosecution Closing Arguments, Transcript 7 December 2006, pp. 34–35. 1025 Prosecution Final Trial Brief, para. 1279. 1026 Kanu Final Brief, para. 386. 1344 part iv

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.”1027 In its Final Brief, the Prosecution clarifĳies that the case of the Prosecution is that from the advance to Mansofĳinia 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 Mansofĳinia to Camp Rosos further arguing that several groups of AFRC soldiers passed through the area over a period of months.1028 The Kanu Defence also contends that the Accused Kanu was responsible for protecting civilians and not for exploiting them.1029 (a) Kanu’s Position within the AFRC Troops from Mansofĳinia to Rosos (i) Prosecution Witnesses 518. The Trial Chamber recalls that following the retreat of the AFRC fĳighting forces from Kono District, SAJ Musa instructed the Accused Brima to fĳind a base in Bombali district.1030 Kanu joined Brima on SAJ Musa’s instructions.1031 519. Witness TF1-334 testifĳied that the Accused Kanu was Chief of Stafff during this journey and that he was directly subordinate to the Accused Kamara and superior to the battalion commanders.1032 520. Witness George Johnson testifĳied that the Accused Kanu held the G-5 position, and that he was in charge of all abductees.1033 While George Johnson corroborated TF1-334’s evidence that at Mansofĳinia 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 commander1034 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

1027 Indictment, para. 30. 1028 Kanu Final Brief, para. 392–394. 1029 Kanu Final Brief, para. 267. 1030 Context of Alleged Crimes, para. 379, supra. 1031 TF1-334, Transcript 20 May 2005, p. 87. 1032 TF1-334, Transcript 20 May 2005, pp. 92–93, 100–101; TF1-334, Transcript 16 June 2005, pp. 20–21. 1033 George Johnson, Transcript 15 September 2005, pp. 50, 59. 1034 Named admitted under seal: Exhibit P-12. judgments 1345 in Mansofĳinia.1035 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 fĳindings above on the credibility and reliability of witnesses testifying about the command structure during the advance of the AFRC fĳighting forces from Mansofĳinia in Koinadugu to Camp Rosos in Bombali District.1036 (b) Findings 522. The Trial Chamber fĳinds that the Prosecution evidence with regard to Kanu being third in command in Koinadugu and Bombali Districts was insufffĳicient. Witness TF1-334 does not specifĳically state that as Chief of Stafff, the Accused Kanu was third in command in Bombali District. He testifĳied that the Accused Kanu was third in command while Chief of Stafff in Freetown.1037 Moreover, the other witnesses who testify that the Accused Kanu was Chief of Stafff in Bombali District do not state that this made him third in command.1038 In his testimony on Bombali District, witness TF1-334 stated that as Chief of Stafff the Accused Kanu passed on orders from the Accused Brima to the Operations Commander.1039 However, he also stated in cross-examination that the Accused Kanu’s role as Chief of Stafff was to enforce orders given by the Accused Brima, the Accused Kamara and the Operations Commander.1040 The Operations Commander reported to the Accused Kamara and Brima.1041 523. Prosecution Witnesses TF1-334 testifĳied that the Accused Kanu was “in total control” of abducted women.1042 After the operation at Karina, in which women were abducted, the Accused Kanu informed commanders that they would have to “sign for these women.”1043 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

1035 George Johnson, Transcript 21 September 2005, pp. 15–16. 1036 Role of the Accused, Brima, paras. 356–377, supra. 1037 TF1-334, Transcript 13 June 2005, pp. 58–61. See also George Johnson, Transcript 16 September 2005, pp. 12–13; TF1-184, Transcript 27 September 2005, pp. 55–56. 1038 Role of Accused, para. 522, supra. 1039 TF1-334, Transcript 20 May 2005, pp. 100– 101. 1040 TF1-334, Transcript 16 June 2005, p. 67. 1041 TF1-334, Transcript 20 May 2005, pp. 99–100, 102. 1042 TF1-334, Transcript 24 May 2005, pp. 62. 1043 TF1-334, Transcript 24 May 2005, pp. 62. 1346 part iv

“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.1044 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.”1045 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.1046 No evidence has been adduced suggesting that this system also applied to former soldiers who treated their abducted wives badly. 525. Witness TF1-334 testifĳied that the Accused Kanu was also in charge of military training at Camp Rosos, including the training of abducted civilians.1047 George Johnson testifĳied that Kanu and FAT Sesay were in charge of providing military training to civilians, including children, at Camp Rosos.1048 526. The Trial Chamber is satisfĳied 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 fĳighting force. In addition, he was the Commander of the AFRC fĳighting force in charge of abducted civilians including women and children. Whether he had efffective control over the AFRC fĳighting forces will be assessed elsewhere in this Judgement.1049

(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.1050

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 that he actively participated in the planning phase.1051 It further alleges that the Accused

1044 TF1-334, Transcript 24 May 2005, 62–64. 1045 TF1-334, Transcript 24 May 2005, pp. 65–66. 1046 TF1-334, Transcript 24 May 2005, pp. 68–69. 1047 TF1-334, Transcript 24 May 2005, p. 24. 1048 George Johnson, Transcript 15 September 2005, pp. 64–65. 1049 Responsibility of Accused, Kanu, paras. 2034–2040, infra. 1050 Role of Accused, Brima, paras. 385–388, supra. 1051 Prosecution Final Brief, para. 1629. judgments 1347

Kanu personally committed at least two unlawful killings in the Freetown area, ordered the commission of specifĳic crimes, and aided and abetted others.1052 529. In its Final Brief, the Kanu Defence makes no specifĳic 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 testifĳied about the invasion of Freetown in January 1999.1053 531. Witness TF1-184 testifĳied that while SAJ Musa was alive, ‘Five-Five’ was one of a number of commanders and his rank was lieutenant colonel.1054 Both witnesses TF1-184 and TF1-334 testifĳied that following the death of SAJ Musa, Five- Five was promoted to brigadier and made army Chief of Stafff.1055 Witness Gibril Massaquoi testifĳied 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 Stafff.”1056 Witness TF1-334 testifĳied that on 6 January 1999, he heard the Accused Kanu on the local radio. Kanu identifĳied himself as the Chief of Stafff and stated that the army had taken over the government of President Kabbah and their commander was Lieutenant General Alex Tamba Brima.1057 Witness TF1-334 stated that this made him third in command.1058 532. The Trial Chamber fĳinds that he was active in his position as Chief of Stafff. George Johnson testifĳied 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 specifĳically reminded them about Brima’s order that police stations should be burnt down and that targeted persons should be executed.1059 533. As will be discussed elsewhere in this Judgement, there is credible evidence that the Accused Kanu personally committed crimes during this period and that he ordered the commission of crimes and that his orders were obeyed.1060 534. The Trial Chamber notes that the Accused Kanu was based at State House, the headquarters of the AFRC fĳighting forces.1061 He attended the meeting of

1052 Prosecution Final Brief, paras. 1630–1636. 1053 See Role of the Accused, Brima, paras. 396–419, supra. 1054 TF1-184, Transcript 27 September 2005, pp. 42–43. 1055 TF1-184, Transcript 27 September 2005, p. 56; TF1-334, Transcript 13 June 2005, pp. 58–60. 1056 Gibril Massaquoi, Transcript 7 October 2005, p. 120. 1057 TF1-334, Transcript 14 June 2005, pp. 19–20. 1058 TF1-334, Transcript 13 June 2005, p. 60. 1059 George Johnson, Transcript 16 September 2005, pp. 16–17. 1060 Responsibility of Accused, paras. 2050–2061, infra. 1061 TF1-334, Transcript 14 June 2005, pp. 4–5; Transcript 13 June 2005 p. 105; Gibril Massaquoi, Transcript 7 October 2005, p. 122; Transcript 10 October 2005, p. 3; TF1-153, Transcript 23 September 2005, p. 3. 1348 part iv

commanders held there on the evening of 6 January at which an attack on Wilberforce was discussed.1062 The Trial Chamber further observes that the evidence shows that Kanu was almost always at Brima’s side during the Freetown invasion and retreat.1063 (a) Findings 535. The Trial Chamber is satisfĳied that the Accused Kanu was Chief of Stafff 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 the Accused Kanu was not present in Port Loko during the Indictment period, and alleges instead that during this period he and the Accused Brima “fled with the RUF leadership to Makeni” in Bombali District.1064 537. The Trial Chamber is satisfĳied 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 fĳindings with regards to the Role of the Accused Kanu in Port Loko District.

1062 Gibril Massaquoi, Transcript 7 October 2005, p. 120; Transcript 11 October 2005, pp. 5, 65. 1063 George Johnson, Transcript 16 September 2005, pp. 13, 17. 1064 Prosecution Final Brief, para. 34. judgments 1349

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 fĳind- ing 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 ‘efffective control test.’1065 539. The doctrine of efffective 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 stafffed than a regular army. However, it mimicked one.1066 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 efffective 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

1065 See Applicable Law, paras. 784–790, infra. 1066 See further Exhibit D36, Major-General Prins, “Military Expert Witness Report on the Armed Forces Revolutionary Council Faction” [hereinafter “Prins Report”], para. 65. 1350 part iv responsibility of the three Accused, the Trial Chamber’s fĳindings on which are set out elsewhere in this Judgement.1067

B. Submissions of the Parties 541. The Prosecution submits that the AFRC faction was a military organisation with efffective 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.1068 According to the Prosecution, the AFRC as a military organisation was probably the most ‘efffective’ one in Sierra Leone prior to the 6 January 1999 invasion.1069 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.1070 The Defence jointly submit that these fundamental military defĳiciencies form a prima facie basis for the absence of efffective command and control within the AFRC faction.1071 543. The Defence jointly submit that the AFRC faction was an irregular military force which lacked the strong, clearly defĳined 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.1072 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.”1073 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.1074

1067 Responsibility of the Accused, infra. 1068 Prosecution Final Brief, para. 802; Exhibit P-36, Iron Report, para.E6.2. 1069 Prosecution Final Brief, para. 801, Colonel Iron, Transcript 13 October 2005, p. 65. 1070 Kanu Final Brief, paras. 243–247; Brima Final Brief, para. 103; Kamara Final Brief, para. 64. 1071 Brima Final Brief, para. 323; Kamara Final Brief, paras. 64, 67; Kanu Final Brief, para. 247. 1072 Brima Final Brief, paras. 100–102; Kamara Final Brief, paras. 64–65; Kanu Final Brief, paras. 228–247. 1073 Kanu Final Brief, para. 228. 1074 Kanu Final Brief, para. 260. judgments 1351

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 identifĳied 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 difffĳicult 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’1075 and those wearing mixed civilian and combat, often with red head- bands, as ‘rebels.’1076 However, the witnesses’ conclusions were not always accurate, as members of both factions regularly wore civilian clothes or mixed civilian/ combat clothes.1077 Some even wore stolen ECOMOG uniforms.1078 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 identifĳication 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.

1075 Witness TF1-072 stated that “the soldiers were dressed in soldier uniforms”: Transcript 1 July, p. 7. Witness TF1-216 also testifĳied that “the soldiers all had uniforms and were armed”: Transcript 27 June 2005, pp. 78–79. 1076 Witness DBK-089 described a rebel as someone who does not wear a uniform, who attacks and cuts people: Transcript 14 July 2006, pp. 20, 45–46. Witness DAB-123 stated that the rebels who attacked his village were wearing a mix of military and civilian clothing. He was referring to the RUF: Transcript 12 September 2005, pp. 24–28; DAB-090 stated that the rebels wore mixed civilian and combat clothes: Transcript 17 July 2006, p. 55. 1077 George Johnson testifĳied during the February 1998 retreat from Freetown, members of the RUF were mainly wearing civilian clothes, but some wore military clothes. Some of the AFRC troops were dressed in military fatigues, but some wore civilian attire: Transcript 15 September 2005, p. 27. Witness Gibril Massaquoi testifĳied that in the January 1999 attack on Freetown, fĳighters wore a mixture of clothing. Some wore ECOMOG military uniforms and others wore T-shirts with military trousers. He stated that it was difffĳicult to distinguish between RUF and AFRC unless you knew them before: Transcript 7 October 2005, p. 125. See also TF1-062, Transcript 27 June 2005, p. 8; TF1-206, Transcript 28 June 2005, p. 88; DAB-098, Transcript 4 September 2006, p. 14; DSK-103, Transcript 13 September 2006, p. 10. 1078 Witness TF1-334 testifĳied that AFRC commander ‘Savage’ and his men wore Nigerian ECOMOG uniforms during the attack on Tombodu: Transcript 20 May 2005, p. 12. 1352 part iv

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.1079 Prosecution Military Expert was Colonel Richard Iron, an offfĳicer 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,1080 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.1081 Secondly, Colonel Iron had more operational experience than Major-General Prins.1082 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 offfĳicers, because in his view junior ranked offfĳicers have only limited knowledge of matters such as the overall structure of a military organisation.1083 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 offfĳicers. In contrast, Colonel Iron interviewed lower ranking AFRC members who were actually involved in the fĳighting, although most of his report was based on interviews with only three such individuals.1084 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 fĳindings. For instance, he was reluctant to accept the new evidence of witness TRC-01 and other Defence witnesses which contradicted his own position.1085 551. Ultimately, however, the Trial Chamber considers both military expert reports to be of limited use in examining the organisational structure of the AFRC

1079 Exhibit P-36, Iron Report; Exhibit D-36, Prins Report. Col. Iron testifĳied on 12, 13 and 14 October 2005 and Major-General Prins testifĳied on 17, 19, 20 and 24 October 2006. 1080 Col. Iron, Transcript 12 October 2005, pp. 5–8; Major-General Prins, Transcript 17 October 2006, p. 3–18. 1081 Major-General Prins, Transcript 19 October 2006, pp. 41–43. 1082 Major-General Prins, Transcript 19 October 2006, p. 37. 1083 Major-General Prins, Transcript 17 October 2006, pp. 55–56. 1084 Witnesses George Johnson, TF1-334 and TF1-184. 1085 Major-General Prins, Transcript 24 October 2006, p. 53. judgments 1353 faction. This is fĳirstly 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 signifĳicant 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.1086 553. The experts defĳined 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.1087 Colonel Iron explained that the establishment of sub-units at each hierarchical level of command increases the control that each individual commander possesses.1088 The evidence indicates that AFRC troops were divided into battalions, but the number of battalions varied at diffferent times and the number of men in each battalion appears to have fluctuated.1089 In a regular army, a “stafff” is appointed to assist the commander.1090 While SAJ Musa established some kind of stafff structure at Colonel Eddie Town,1091 the evidence establishes that the AFRC offfĳicers lacked sufffĳicient military training to properly fulfĳil stafff functions.1092 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

1086 Major-General Prins adopted Colonel Iron’s methodology: Exhibit D-36, Prins Report para. 10. The four elements of the test were whether the AFRC had a recognisable military hierarchy and structure; whether it exhibited the characteristics of a traditional military organisation; whether there was coherent linkage between strategic, operational and tactical levels; and whether command was efffective. 1087 Exhibit D-36, Prins Report, para. 66; Exhibit P-36, Iron Report, para. B3.1. 1088 Iron report, p. B-2, para. B3.1. 1089 TF1-334, Transcript 16 June 2005, p. 48. 1090 ‘Stafff’ is the generic term for those offfĳicers and other personnel who support and assist the commander: Exhibit P-36, Iron Report, paras. B3.2 – B3.7; Colonel Iron, Transcript 12 October 2005, p. 18. 1091 Exhibit D-36, Prins Report, paras. 71 and 89. 1092 Exhibit D-36, Prins Report, paras. 74–80, 89; Colonel Iron, Transcript 13 October 2005, p. 83; George Johnson, Transcript 15 September 2005, p. 10. 1354 part iv 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 fĳinance system.1093 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.1094 Other characteristics – intelligence process,1095 communications system,1096 lessons learnt system,1097 recruitment and training1098 and medical system1099 – 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 offfĳicers staged the coup and established the AFRC.1100 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 profĳiling.1101 The level of recruits was poor and the organisation was not capable of training these recruits into efffective, disciplined soldiers.1102 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.1103 Neither Colonel Iron nor Major-General Prins are experts in irregular military conflict. However, an irregular force can

1093 Exhibit P-36, Iron Report, paras. B4.1–B4.14; Exhibit D-36, Prins Report, paras. 94–140. 1094 TF1-334, Transcript 17 May 2005, pp. 72–73. Witness TF1-334 testifĳied that the operation continued up to Kono District: Transcript 20 June 2005, pp. 104–105. Witness TF1-216 testifĳied that soldiers referred to ‘Operation Pay Yourself’ following the capture of Koidu Town in March 1998: Transcript 27 June 2005, pp. 78–80, 96. Witness TF1-157 testifĳied that looting AFRC soldiers referred to ‘Operation Pay Yourself’ in Bombali District in April/May 1998: Transcript 22 July 2005, p. 68. 1095 Exhibit D-36, Prins Report, paras. 95–97. 1096 Exhibit P.36, Irons Report, paras. E3.1-E3.2; Exhibit D.36, Prins Report, paras. 98–105. 1097 Exhibit P.36, Irons Report, paras. E3.1-E3.2; Exhibit D-36, Prins Report, paras. 112–115. 1098 Exhibit P.36, Irons Report, paras. E3.1-E3.2; Exhibit D-36, Prins Report, paras. 120–122. 1099 Exhibit P.36, Irons Report, paras. E3.1-E3.2; Exhibit D-36, Prins Report, paras. 131–132. 1100 Exhibit P.36, Irons Report, paras. E3.1-E3.2; Exhibit D.36, Prins Report, para. 172. 1101 TRC-01, Transcript 16 October 2006, pp. 62, 73. These numbers included both regular forces, trained to serve in the SLA, and irregular forces, namely the Sierra Leone border guards and vigilantes and the CDF. 1102 Prins report para. 26; TRC-01, Transcript 16 October 2006, p. 89. 1103 Exhibit D-36, Prins Report, paras. 174, 179; Colonel Iron, Transcript 13 October 2005, pp. 83–84; Major-General Prins, Transcript 17 October 2006, p. 68. judgments 1355 also be an organised force, and it can act in a structured and co-ordinated way.1104 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 efffectively control their men. Insofar as a developed structure exists within an organisation, this is an important indicium of the superior’s ability to exercise efffective 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 sufffĳiciently developed planning and orders process,1105 and a strong disciplinary system.1106 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 diffferent Districts.1107 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 diffferent geographical areas.1108 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 fĳindings below, the Trial Chamber therefore relies

1104 See Major-General Prins, Transcript 20 October 2006, pp. 95, 75. 1105 Colonel Iron explained that military activity is usually the result of a coherent plan that all or parts of the organisation will attempt to implement. The key part is the decision – the selection of a course of action. Once a decision has been made, it is transmitted to those responsible for its implementation through an orders process: Exhibit P-36, Iron Report, para. B4.4 1106 Exhibit P-36, Iron Report, p. B-6, para. B4.6. 1107 See Context of Alleged Crimes, supra. 1108 See Context of Alleged Crimes, supra. 1356 part iv 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 identifĳied 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.’1109 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.1110 Witness George Johnson was the Chief Security Offfĳicer to the Accused Kamara in Kono District and later a senior commander himself.1111 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.”1112 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 fĳindings on the military structure of the AFRC.

1109 See for example DBK-113, Transcript 16 October 2006, pp. 28–29, 32; DBK-131, Transcript 10 October 2006, pp. 88–91. The Defence witness to give the most detail was witness DBK-012, who was himself a senior AFRC commander: Transcript 5 October 2006, pp. 107–112; Transcript 6 October 2006, pp. 6–18. 1110 The names of these commanders were provided to the Trial Chamber: Exhibit P-12 (under seal); Transcript 26 September 2005, p. 71 (closed session). 1111 George Johnson, Transcript 15 September 2005, pp. 7–11. 1112 TF1-334, Transcript 15 June 2005, pp. 67–68. judgments 1357

E. Findings on the Military Structure of the AFRC Fighting Force (a) Kono District (14 February 1998-30 June 1998) (i) The Chain of Command 564. While the AFRC faction in Kono District was subordinate to RUF command,1113 the two forces retained separate command structures. Witness George Johnson testifĳied 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.1114 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.1115 A known AFRC commander, whose name was given to the Court in closed session, was the Operations Commander, subordinate to Kamara.1116 The Accused Kamara appointed Colonel Foday Kallay as Deputy Operations Commander.1117 George Johnson corroborated the existence of a Deputy Operations Commander, but he ascribed this role to RUF commander ‘Rambo.’1118 Witness TF1-334 testifĳied 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 satisfĳied 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.1119 Witness TF1-334 testifĳied 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.1120 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

1113 Context of the Alleged Crimes, paras. 183–185, supra. 1114 George Johnson, Transcript 15 September 2005, pp. 35–36, 46–47; George Johnson, Transcript 20 September 2005, p. 14. 1115 TF1-334, Transcript 18 May 2005, pp. 21–22; George Johnson, Transcript 15 September 2005, pp. 37–38. See further Role of Accused, Kamara, paras. 451–452, 461, supra. 1116 TF1-334, Transcript 18 May 2005, pp. 22–23, Transcript 19 May 2005, p. 15; George Johnson, Transcript 15 September 2005, pp. 39–40. 1117 TF1-334, Transcript 19 May 2005, p. 16. 1118 George Johnson, Transcript 15 September 2005, pp. 39–40. 1119 George Johnson, Transcript 15 September 2005, pp. 37–38. 1120 TF1-334, Transcript 19 May 2005, pp. 16–26; George Johnson, Transcript 15 September 2005, pp. 37–38. 1358 part iv battalions depending on the changing military threats in each location. He estimated that a battalion could range in size from 55 to 100 men.1121 566. Witness TF1-334 testifĳied that the battalion commanders were subordinate to the Operations Commander and reported directly to him.1122 In addition, the witness named several AFRC military supervisors as well as an AFRC artillery commander, Lieutenant Lagah, that reported to the Operations Commander.1123 The Accused Kamara also appointed a Political Adviser, ‘Coachy Borno.’1124 567. Witness George Johnson testifĳied 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.1125 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 stafff to the commander.1126 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 signifĳicantly 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.1127 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.1128 Other witnesses refer to a G5 position existing in the AFRC structure at various points in time.1129 569. The Trial Chamber notes that witnesses who did not use the NATO nomenclature described positions in the same substantive terms, for example, referring

1121 TF1-334, Transcript 19 May 2005, p. 18. 1122 TF1-334, Transcript 19 May 2005, p. 21. 1123 TF1-334, Transcript 19 May 2005, pp. 27–28, 36–37. 1124 TF1-334, Transcript 19 May 2005, p. 48. 1125 George Johnson, Transcript 15 September 2005, pp. 39–41. 1126 Colonel Iron explained the system as follows: “G1 branch, for example, looks after personnel issues; everything to do with administration, recruitment, pay, welfare issues. G2 looks after the intelligence function, providing intelligence advice to the commander. G3 helps to run operations on behalf of the commander; he coordinates operational activity. G4 is responsible for logistics; ensuring, for example, that troops do not run out of ammunition during a battle. And G5 is called civil military relations…[in the AFRC] the G5 is essentially the stafff branch responsible for looking after civilians, abducted civilians usually, and their care for – deal with welfare and the tasking of abducted civilian who were used by these organisations”: Colonel Iron, Transcript 12 October 2005, pp. 17–18. See also Exhibit P36, Iron Report, para. B3.4. 1127 TF1-114, Transcript 14 July 2005, p. 130; TF1-113, Transcript 18 July 2005, p. 76; Gibril Massaquoi, Transcript 7 October 2005, pp. 8–9. 1128 George Johnson, Transcript 21 September 2005, p. 42. 1129 Witness TF1-153 testifying that during the advance to Freetown, he assisted ‘Coachy Gibono’ with G5 responsibilities: Transcript 23 September 2005, p. 100. See also TF1-184, Transcript 29 September 2005, p. 69; DBK-012, Transcript 6 October 2005, p. 42. judgments 1359 to FAT Sesay as the ‘Brigade Administrator’ instead of the G1.1130 While witness George Johnson stated that G2 and G3 positions did not exist in the AFRC,1131 Colonel Iron testifĳied that the Operations Commander in the AFRC was equivalent to the G3 position.1132 In light of the occasional use of the terminology by several diffferent witnesses; the apparent existence of some of the stafff positions (G1, G4 and G5) but not others (G2 and G3); and the fact that similar positions existed with diffferent 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 fĳinds that the testimony of George Johnson regarding the existence of stafff 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 fĳinds 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 testifĳied that the Accused Kamara gave orders through the Operations Commander.1133 It appears from the available evidence, in particular that of Defence witnesses present throughout this period,1134 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.1135 The two factions participated in a number of joint

1130 TF1-334, Transcript 14 June 2005, pp. 20–21; George Johnson, Transcript 16 September 2005, p. 39. 1131 George Johnson, Transcript 15 September 2005, p. 41; Transcript 21 September 2005, pp. 38–39. See also Colonel Iron, Transcript 13 October 2005, p. 12. 1132 Colonel Iron, Transcript 13 October 2005, p. 12. 1133 TF1-334, Transcript 18 May 2005, pp. 22–23, Transcript 19 May 2005, p. 15. 1134 See discussion of their evidence: Role of Accused, Kamara, paras. 454–459 supra. 1135 TF1-334, Transcript 18 May 2005, p. 24. 1360 part iv operations.1136 One example is the joint attack to Sewafe to destroy a bridge in order to prevent ECOMOG forces advancing to Koidu Town.1137 In addition, commanders went on patrols and maintained contact with battalion commanders situated in diffferent villages.1138 573. In the Trial Chamber’s view, despite the absence of specifĳic 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 fĳinds 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 efffective 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 specifĳic 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 fĳinds that the AFRC faction in Kono District had a functioning chain of command and a planning and orders process. (b) Bombali District (May 1998-November 1998) (i) The Chain of Command 576. Witness TF1-334 testifĳied that he attended an open meeting at Mansofĳinia 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.1139 The Accused Kanu, who was already a Colonel, was promoted to Chief of Stafff.1140 Witness TF1-334’s superior was the Operations

1136 TF1-334, Transcript 18 May 2005, pp. 24–33; Transcript 19 May 2005, pp. 3–4; TF1-019, Transcript 30 June 2005, p. 89; TF1-217, Transcript 17 October 2005, pp. 4–7, 14, 32; TF1-074, Transcript 05 July 2005, pp. 9, 11, 27–30. 1137 TF1-334, Transcript 18 May 2005, pp. 33–34. 1138 George Johnson, Transcript 15 September 2005, pp. 45–46. 1139 TF1-334, Transcript 20 May 2005, pp. 87–91; TF1-334, Transcript 23 May 2005, pp. 5–6. 1140 TF1-334, Transcript 20 May 2005, pp. 92–93. judgments 1361

Commander and he reported to the Accused Brima and Kamara.1141 The Operations Commander’s deputy was Captain ‘Junior Sherifff.’1142 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.1143 It is apparent from the witness’ testimony that, as in Kono District, each company also had a ‘2IC’ or second in command.1144 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.’1145 578. Witness TF1-334 testifĳied that there was a chain of command in which the Chief of Command gave orders to the Chief of Stafff, who then told the Operations Commander, who then passed on orders to the company commanders.1146 The witness testifĳied that the military supervisors were inferior to the Chief of Stafff and equal in rank but inferior in appointment to the Operations Commander.1147 579. Witness TF1-334 also testifĳied 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.1148 Major FAT Sesay was appointed as Brigade Administrator.1149 The witness detailed a number of other more minor appointments, including a Brigade Adjutant; Military Police Commander; Brigade Major; Intelligence Offfĳicer; Task Force Commander; Brigade Regimental Sergeant Major (“RSM”) and Political Advisor.1150 580. The testimony of witness George Johnson corroborates in large part the account of witness TF1-334. He stated that the Accused Brima publicly

1141 TF1-334, Transcript 20 May 2005, pp. 99–100, 102. The name of the Operations Commander was admitted under seal: Exhibit P-12. 1142 TF1-334, Transcript 23 May 2005, pp. 38–39. 1143 TF1-334, Transcript 20 May 2005, pp. 103–105; Transcript 23 May 2005, pp. 25–26. George Johnson, Transcript 15 September 2005, p. 38. 1144 TF1-334, Transcript 23 May 2005, pp. 82–83. 1145 TF1-334, Transcript 23 May 2005, pp. 4, 6, 20, 26. 1146 TF1-334, Transcript 20 May 2005, p. 101, 107. 1147 TF1-334, Transcript 23 May 2005, pp. 4–5. 1148 TF1-334, Transcript 20 May 2005, p. 90; Transcript 23 May 2005, pp. 2–3, 6, 26. The name of the Operations Commander was admitted under seal: Exhibit P-12. 1149 TF1-334, Transcript 23 May 2005, pp. 32–33. 1150 TF1-334, Transcript 23 May 2005, pp. 28–38. 1362 part iv

restructured the troop into four ‘battalions’ at Mansofĳinia.1151 He confĳirmed 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.1152 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 testifĳied 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 diffference being that battalions are larger than companies.1153 On occasion, witness TF1-334 used the two words interchangeably.1154 He explained that when reinforcements from SAJ Musa joined the troop at Rosos, the companies became battalions by virtue of their increased size.1155 Colonel Iron refers to this change and opines that ‘this reti- tling was less to do with size, but more an opportunity to promote the commanders.’1156 Be that as it may, the Trial Chamber is satisfĳied that the diffferent terminology used by the witnesses, neither of whom had received substantial military training,1157 does not afffect the substance of their evidence, which the Trial Chamber fĳinds to be reliable. 582. Finally, the witnesses also difffer on the point in time at which ‘Junior Lion’ assumed command of the fourth battalion or company. Witness TF1-334 testifĳied that ‘Junior Lion’ was appointed commander of Company D at Mansofĳinia. However, ‘Junior Lion’ stated that the Accused Brima appointed him Provost- Marshal, in which capacity he was responsible for taking disciplinary action against fĳighters who disobeyed the laws in place.1158 He testifĳied that he was appointed commander of the fourth battalion by Brima upon arrival at Rosos.1159 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

1151 George Johnson, Transcript 15 September 2005, p. 48. 1152 George Johnson, Transcript 15 September 2005, pp. 50–51. 1153 TF1-334, Transcript 20 May 2005, p. 91. 1154 TF1-334, Transcript 23 May 2005, p. 5. 1155 TF1-334, Transcript 20 May 2005, pp. 91–92. 1156 Exhibit P-36, Iron Report, para. E2.1. 1157 George Johnson had received only basic training in tactics and weapons handling while in the SLA: Transcript 15 September 2006, p. 6. Witness TF1-334 was a low-ranked soldier: Transcript 16 May 2005, pp. 6–10 (closed session). 1158 George Johnson, Transcript 15 September 2005, pp. 48–49. 1159 George Johnson, Transcript 15 September 2005, p. 67. judgments 1363 but does not state who the fourth commander was.1160 Further, witness TF1-033 named the same four individuals as company commanders as witness TF1-334.1161 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 fĳinds 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 Yifĳin.1162 The Trial Chamber notes that according to witness TF1-334, the fĳirst stop of the troops after Mansofĳinia was a village called Yaya.1163 Given that witness TF1-033 omits mention of Mansofĳinia, 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 Mansofĳinia.1164 585. The foregoing evidence establishes that the AFRC faction had an overall commander, a deputy commander, a Chief of Stafff, 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 fĳinds that the AFRC faction in Bombali District had a well-developed chain of command. (ii) Planning and Orders Process 586. Witness George Johnson testifĳied 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.1165 In the AFRC faction, planning was conducted by the Operations Commander, who would approve his plan through the Commander in Chief.1166 As Chief of Stafff, Kanu’s role was to enforce orders given by Brima, Kamara and the Operations Commander.1167 There is also evidence of the Operations Commander ordering operations.1168

1160 George Johnson, Transcript 21 September 2005, pp. 52–55. 1161 TF1-033, Transcript 11 July 2005, pp. 13–15. 1162 TF1-033, Transcript 11 July 2005, pp. 13–15. 1163 TF1-334, Transcript 23 May 2005, p. 39. 1164 George Johnson, Transcript 15 September 2005, p. 44. 1165 George Johnson, Transcript 15 September 2005, p. 60. 1166 George Johnson, Transcript 16 September 2005, pp. 3, 16–17. 1167 TF1-334, Transcript 16 June 2005, p. 67. 1168 George Johnson, Transcript 15 September 2005, p. 63. 1364 part iv

587. Witness TF1-334 described in detail various incidents from which it is evident that an orders process functioned efffectively. 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 Sherifff. The Accused Brima ordered the Deputy Operations Commander to take the troops, including the witness, to the rear and dislodge the enemy threat.1169 The operation was completed and the troops reported to Gullit on their return.1170 588. On one occasion while at Rosos, the Accused Brima called together the Deputy Brigade Commander ‘Bazzy,’ the Chief of Stafff ‘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.1171 ‘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.1172 ‘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.1173 The Accused Brima did not go on this operation, but rather the troops were led by Kamara and four other commanders.1174 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.1175 ‘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.1176 The company commanders returned later that evening with their men and ‘Gullit’ addressed them publicly in the fĳield used on such occasions.1177 After the operation, the soldiers returned to Rosos and reported to the Accused Brima.1178 This evidence is

1169 TF1-334, Transcript 23 May 2005, pp. 91–93. 1170 TF1-334, Transcript 23 May 2005, p. 94. 1171 TF1-334, Transcript 24 May 2005, pp. 5–6. 1172 TF1-334, Transcript 24 May 2005, p. 9. 1173 TF1-334, Transcript 24 May 2005, pp. 9–10. 1174 TF1-334, Transcript 24 May 2005, pp. 9–10. 1175 TF1-334, Transcript 24 May 2005, pp. 45–46. 1176 TF1-334, Transcript 24 May 2005, pp. 46–47. 1177 TF1-334, Transcript 24 May 2005, pp. 47–48. 1178 TF1-334, Transcript 24 May 2005, p. 50. judgments 1365 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.1179 590. As is apparent from the above evidence, orders were not written, but given orally in briefĳings.1180 Orders were usually given to the command group, but it was not unusual for the Accused Brima to brief the entire force.1181 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 Mansofĳinia that as they moved onwards throughout Bombali District, the rule applied would be “minus you, plus you.”1182 The witness stated that this meant that the troop would continue with or without anyone who was disobedi- ent, 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.”1183 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-offf warning to the troops, but rather a well-known rule of the Accused Brima.1184 The Accused Brima denied any knowledge of this phrase.1185 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.1186 Upon arrival at Colonel Eddie Town these laws, which had

1179 TF1-033, Transcript 11 July 2005, pp. 29–30. 1180 George Johnson, Transcript 16 September 2005, pp. 3, 16–17. 1181 Iron report, p. E-2 para. E3.1; TF1-334, Transcript 23 May 2005, pp. 16–17; TF1-033, Transcript 11 July 2005, p. 14. See further Responsibility of Accused, para. 1724, infra. 1182 TF1-334, Transcript 23 May 2005, p. 16. 1183 TF1-334, Transcript 14 June 2005, p. 90. 1184 TF1-334, Transcript 23 May 2005, p. 16; TF1-334, Transcript 14 June 2005, p. 90; Transcript 16 June 2006, p. 16; Transcript 17 June 2005, p. 92. 1185 Alex Tamba Brima, Transcript 13 June 2006, p. 3. 1186 George Johnson, Transcript 15 September 2005, pp. 48–49, 76–77. 1366 part iv 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 fĳighters reluctant to go on ambush would be publicly flogged.1187 This system was known as ‘jungle justice.’1188 595. Extensive evidence was adduced on the established system at Rosos which governed relationships between the soldiers and the abducted women.1189 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.1190 Witness TF1-033 testifĳied that according to the “jungle justice” rules, any fĳighter who raped another fĳighter’s ‘wife’ would be killed. The witness recalled an incident in which Alhaji Kamanda alias ‘Gunboot’ killed a fĳighter for raping another fĳighter’s ‘wife.’1191 596. The Trial Chamber recalls that a Military Police Commander was appointed at Mansofĳinia.1192 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, testi- fĳied that he was responsible for making sure the soldiers stayed ‘on the right path’ and attacked only designated villages.1193 597. Major-General Prins opined that it is unlikely the Provost-Marshal ever functioned properly because there were no trained stafff offfĳicers who could establish a system to try and punish offfenders.1194 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 offfenders and determining appropriate penalties. Rather, the system appears to have been fairly arbitrary. ‘Junior Lion’ testifĳied 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.1195 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

1187 George Johnson, Transcript 15 September 2005, p. 78. 1188 George Johnson, Transcript 15 September 2005, pp. 48–49. 1189 See Factual Findings, Outrages on Personal Dignity, paras. 1137–1141, infra for more detail on the rules applied to the women at Camp Rosos. 1190 TF1-334, Transcript 23 May 2005, pp. 76–77. 1191 TF1-033, Transcript 12 July 2005, p. 9. 1192 See Military Structure of AFRC Fighting Force, para. 578, supra. 1193 George Johnson, Transcript 15 September 2005, pp. 48–49. 1194 Exhibit D-36, Prins Report, para. 118. 1195 George Johnson, Transcript 15 September 2005, p. 77. judgments 1367 wanted to exert discipline to control the behaviour of his offfĳicers and men, the system was there for him to do it. If he decided not to, then wrongdoings could go unpunished.1196 ‘Junior Lion’ testifĳied that no discipline was ever imposed for carrying out amputations, for instance, those carried out by ‘Adama Cut Hand.’1197 The Trial Chamber notes in this regard that the selective application of the disciplinary system did not undermine its efffectiveness. 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 fĳinds that despite its brutal nature, the AFRC faction in Bombali District had a functioning disciplinary system. (iv) Conclusion 600. The Trial Chamber fĳinds that a well-developed chain of command, an efffective 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.1198 Brima himself testifĳied to a clearly identifĳied 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.1199 Most of these appointments correlated to positions in the traditional army.1200 602. Prosecution witnesses testifĳied 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 Stafff and was third in command.1201 The battalion commanders were each promoted to colonel.1202

1196 Exhibit P-36, Iron Report, para. E3.1. 1197 George Johnson, Transcript 15 September 2005, p. 83. 1198 See Context of Alleged Crimes, paras. 198–201 infra. 1199 Alex Tamba Brima, Transcript 13 June 2006, pp. 6–11. 1200 Colonel Iron, Transcript 13 October 2005, p. 4. 1201 TF1-334, Transcript 13 June 2005, pp. 58–61; George Johnson, Transcript 16 September 2005 pp. 12–13; TF1-184, Transcript 27 September 2005, pp. 55–56. See also Gibril Massaquoi, Transcript 7 October 2005,p. 120–121. 1202 TF1-334, Transcript 13 June 2005, p. 60. 1368 part iv

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 Stafff.1203 ‘O-Five’ remained the Operations Commander, to whom the Missions Commander Foyoh reported.1204 ‘O-Five’ in turn reported to Operations Director Woyoh.1205 Colonel ‘Junior Sherifff’ remained Deputy Operations Commander.1206 The Brigade Administrator was FAT Sesay.1207 This last appointment was corroborated by witness Gibril Massaquoi, who testifĳied that on arrival at State House on 6 January he saw FAT Sesay and was told that he was “Colonel Admin” for the AFRC.1208 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.1209 The battalion commanders were to report to the Operations Commander.1210 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 Stafff.1211 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.1212

1203 TF1-334, Transcript 13 June 2005, p. 62. 1204 TF1-334, Transcript 13 June 2005, pp. 63–66; Gibril Massaquoi, Transcript 7 October 2005, p. 120–121. 1205 TF1-334, Transcript 13 June 2005, pp. 66–67. 1206 TF1-334, Transcript 13 June 2005, p. 76. 1207 TF1-334, Transcript 13 June 2005, p. 79; TF1-184, Transcript 27 September 2005, p. 59. 1208 Gibril Massaquoi, Transcript 7 October 2005, p. 115. 1209 TF1-334, Transcript 13 June 2005, pp. 67–69. ‘NPFL’ is also the acronym for Charles Taylor’s fĳighters, the National Patriotic Front of Liberia. The witness clearly used the term in reference to an individual and the Trial Chamber therefore presumes that it was this person’s pseudonym. The Trial Chamber notes in this regard that there were a number of Liberian fĳighters in Sierra Leone throughout the conflict. 1210 TF1-334, Transcript 13 June 2005, p. 73. 1211 TF1-334, Transcript 13 June 2005, pp. 70–71; George Johnson, Transcript 16 September 2005, p. 14. 1212 DAB-033, Transcript 25 September 2006, pp. 63–68, 70–71; Transcript 2 October pp. 94–95; DBK-012, Transcript 6 October 2006, pp. 4–6, 22–23. judgments 1369

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 Stafff. A number of other minor appointments were made.1213 Brima then ordered that the other positions would remain the same as under SAJ Musa, although he promoted several individuals in rank.1214 He clarifĳied that individuals who reported to SAJ Musa now reported directly to him.1215 607. While the Defence witnesses testifĳied that diffferent individuals occupied the senior command positions,1216 Defence witnesses also testifĳied that there was structure within the troop. Witness DBK-131, a battalion commander during the Freetown invasion, testifĳied that during the advance on Freetown his battalion, and all other battalions, had their own battalion stafff as well as three companies.1217 Companies were divided into platoons and every platoon had four sections.1218 The witness stated he kept an efffective chain of command in his battalion.1219 Witness DBK-131 said that each battalion had its own structure.1220 608. The above evidence establishes that, as it advanced on Freetown, the AFRC had a fĳirst, 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.1221 This conclusion is supported by the testimony of factual witnesses.

1213 TF1-334, Transcript 13 June 2005, pp. 78–84. 1214 TF1-334, Transcript 13 June 2005, pp. 62–63. 1215 TF1-334, Transcript 13 June 2005, p. 63. 1216 See Role of Accused, paras. 406–419, supra, for discussion of this testimony. 1217 DBK-131, Transcript 26 October 2006, pp. 59–60. 1218 DBK-131, Transcript 26 October 2006, p. 8. 1219 DBK-131, Transcript 26 October 2006, p. 59. 1220 DBK-131, Transcript 26 October 2006, p. 60. 1221 Exhibit P-36, Iron Report, para. D4. 1370 part iv

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.’1222 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.1223 This evidence was corroborated by witness TF1-184, who was ordered by ‘Gullit’ to fĳind manpower to carry out a mission1224 and witness Gibril Massaquoi, who recalled ‘Five-Five’ issuing a similar order.1225 George Johnson stated that after the headquarters lost State House, arms and ammunition were nearly fĳinished and were no longer being distributed by the responsible commander, but ‘everybody had his or her own arms and ammunition.’1226 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].’1227 611. In light of this evidence, the Trial Chamber is satisfĳied 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 fĳinds 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 testifĳied to a clearly identifĳied 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.1228 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.1229 They successfully engaged in major battles, including at Lunsar, Benguema, Hastings and Kossoh Town, where complex military planning and manoeuvres were required.1230 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

1222 TF1-334, 14 June 2005, p. 41. 1223 TF1-334, 14 June 2005, pp. 41–42. 1224 TF1-184, Transcript 30 September 2005, pp. 8–9. 1225 Gibril Massaquoi, Transcript 7 October 2005, pp. 13–15. 1226 George Johnson, Transcript 16 September 2005, p. 48. 1227 TF1-184, Transcript 29 September 2005, pp. 104–105. 1228 Alex Tamba Brima, Transcript 13 June 2006, pp. 16–17; DBK-012, Transcript 6 October 2006, p. 9. 1229 Alex Tamba Brima, Transcript 13 June 2006, p. 18. See also DBK-012, Transcript 6 October 2006, p. 9; TF1-033, Transcript 11 July 2005, pp. 114 – 115; and TF1-153, Transcript 22 September 2006, p. 86. 1230 See Exhibit P-36, Iron Report, pp. C-13 – D-1; TF1-033, Transcript 11 July 2005, p. 45; DBK-131, Transcript 10 October 2006, p. 72; George Johnson, Transcript 22 September 2005, p. 86; George Johnson, Transcript 16 September 2006, pp. 14 and 16; TF1-033, Transcript 11 July 2005, p. 55. judgments 1371

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.1231 The troops conducted several other small operations, the execution of which involved commanders including the Accused Brima issuing orders which were obeyed.1232 614. A number of witnesses testifĳied that ‘Gullit’ chaired a meeting of commanders at Orugu village on 4 January 1999 at which he gave the order to attack Freetown.1233 The Chief of Stafff, the Accused Kanu, ran the meeting and reiterated the orders to the troops.1234 Specifĳically, 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.1235 As discussed in greater detail below, these orders were carried out.1236 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.1237 The Trial Chamber accordingly fĳinds 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.1238 The structure established by the Accused Brima after the death of SAJ Musa included a Military

1231 TF1-334, Transcript 13 June 2005, pp. 85–87, 89–90. 1232 TF1-334, Transcript 13 June 2005, pp. 93–100; TF1-184, Transcript 27 September 2005, pp. 57–61; TF1-153, Transcript 22 September 2005, pp. 95–98; George Johnson, Transcript 16 September 2005, pp. 14–16. 1233 TF1-334, Transcript 13 June 2005, p. 100, 110–112; George Johnson, Transcript 16 September 2005, pp. 16–17; TF1-153, Transcript 22 September 2005, pp. 97–98; TF1-033, Transcript 11 July 2005, p. 59. 1234 George Johnson, Transcript 16 September 2005, p. 17. 1235 TF1-334, Transcript 13 June 2005, pp. 100–104; TF1-334, Transcript 14 June 2005, pp. 62–64; TF1- 033, Transcript 11 July 2005, pp. 59–64; TF1-153, Transcript 22 September 2005, p. 98; George Johnson, Transcript 16 September 2005, pp. 22, 24, 27, 29, 31; TF1-184, 27 September 2005, p. 76. 1236 Responsibility of Accused, Brima, paras. 1767–1780, infra. 1237 See Military Structure of the AFRC Fighting Force, para. 609, supra. 1238 See Military Structure of the AFRC Fighting Force, paras. 591–598, supra. 1372 part iv

Police Commander.1239 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.1240 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.1241 It seems, however, that this unit was inefffective. Colonel Iron testifĳied that the disciplinary system broke down in Freetown and soldiers attempted to slip away to the east to avoid fĳighting.1242 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.1243 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.1244 Witness TF1-184 describes one of the commanders throwing a grenade at a soldier accused of stealing money.1245 When asked in cross-examination about the penalty for disobeying orders, witness TF1-334 reiterated that Brima’s rule was “plus you, minus you.”1246 The witness explained that this meant “[i]f you fail to obey then if you are lucky they will fĳire you on the leg. But if you are not lucky…you are killed. Indeed, if you are not fĳired on the leg, you will have the big task which will be given to you.”1247 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 insufffĳicient to prove that any sort of system was operational. Accordingly, the Trial Chamber is of the view that the evidence is insufffĳi- cient to make a fĳinding that a disciplinary system existed within the AFRC in Freetown and the Western Area.

1239 TF1-334, Transcript 13 June 2005, pp. 70–71; George Johnson, Transcript 16 September 2005, p. 14. 1240 Gibril Massaquoi, Transcript 10 October, pp. 10–12. 1241 Gibril Massaquoi, Transcript 7 October 2005, pp. 126–127; Gibril Massaquoi, Transcript 10 October 2005, pp. 21–22. 1242 Exhibit P-36, Iron Report, para. D4-7. 1243 Witness TF1-334 stated this was for allegedly passing on information to Tina Musa (the wife of SAJ Musa): TF1-334, Transcript 14 June 2005, p. 95. Witness TF1-184 testifĳied that ‘Road Block’ was shot because he refused to obey ‘Gullit’s order to burn down a nearby oil refĳinery on the ground that this would be too dangerous: TF1-184, Transcript 27 September 2005, pp. 79–80. 1244 TF1-153, Transcript 23 September 2005, p. 52. 1245 TF1-184, Transcript 27 September 2005, p. 63; TF1-184, Transcript 30 September 2005, p. 18 (closed session). 1246 See Military Structure of the AFRC Fighting Force, paras. 592–593, supra for discussion of this rule. 1247 TF1-334, Transcript 17 June 2005, p. 92. judgments 1373

(iv) Conclusion 620. In light of the foregoing evidence, the Trial Chamber fĳinds beyond reasonable doubt that the AFRC had a functioning chain of command and an efffective 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 fĳinds 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-April 1999) 621. Following the retreat from Freetown, the three Accused regrouped with their troops at Benguema in the Western Area.1248 They then moved to Waterloo where, together with the RUF, they planned a second attack on Freetown.1249 The attack was unsuccessful.1250 622. Subsequently, in Lunsar in early April, infĳighting broke out between Issa Sesay and Denis Mingo of the RUF.1251 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.1252 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.1253 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.’1254 624. There was no evidence adduced on the structure of the AFRC troops who accompanied the Accused Brima and Kanu to fĳight 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.

1248 George Johnson, Transcript 16 September 2005, pp. 58–59. 1249 George Johnson, Transcript 16 September 2006, pp. 59–62; Gibril Massaquoi, Transcript 10 October 2005, pp. 31–32. 1250 George Johnson, Transcript 16 September 2005, pp. 62–63. 1251 Gibril Massaquoi, Transcript 10 October 2005, pp. 35–38. 1252 Gibril Massaquoi, Transcript 10 October 2005, pp. 39–40; George Johnson, Transcript 16 September 2005, pp. 62–63. 1253 TF1-153, Transcript 23 September 2005, pp. 26–28. 1254 Gibril Massaquoi, Transcript 10 October 2005, pp. 40, 44; George Johnson, Transcript 16 September 2005, pp. 63, 67. Witness TF1-334 testifĳied that the AFRC faction in the West Side numbered around 700 people, including abducted civilians: TF1-334, Transcript 15 June 2005, p. 31. 1374 part iv

(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.’1255 ‘Bazzy’ appointed himself the Chief Commander. A known AFRC member was appointed second in command and Director of Operations.1256 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 offfĳicer.1257 The Accused Kamara structured the troops into three battalions and appointed battalion commanders.1258 626. The Trial Chamber notes that Defence witnesses testifĳied that diffferent 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.1259 627. The Trial Chamber fĳinds 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 testifĳied 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.1260 629. There was relatively little evidence adduced on the day-to-day functioning of the troops in the West Side. Witness George Johnson testifĳied about 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.1261 Among those present were battalion commander Tamba Foyo and his second in command,

1255 TF1-334, Transcript 15 June 2005, pp. 24–25; George Johnson, Transcript 16 September 2005, p. 69. 1256 George Johnson, Transcript 16 September 2005, pp. 69–72. The name of this commander was admitted under seal: Exhibit P-12. 1257 TF1-334, Transcript 15 June 2005, p. 26. 1258 George Johnson, Transcript 16 September 2005, pp. 69–72; TF1-334, Transcript 15 June 2005, pp. 31–32. 1259 See Role of Accused, paras. 488–499, supra for discussion of their testimony. 1260 George Johnson, Transcript 16 September 2005, pp. 69–72. 1261 George Johnson, Transcript 16 September 2005, pp. 72–74, 79. judgments 1375

‘Sherifff,’ as well as battalion commander Stanty aka ‘Cake.’1262 Kamara selected George Johnson to lead the operation.1263 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.1264 630. In the Trial Chamber’s view, the evidence regarding the attack on Port Loko establishes that the AFRC commanders employed an efffective 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 testifĳied 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.’1265 632. However, there is no evidence that specifĳic positions, such as Military Police Commander or Provost-Marshal, existed for the enforcement of discipline. It also appears that there were no defĳined rules governing the soldiers’ conduct. Witness George Johnson testifĳied 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 fĳighters at Gberibana like us, Mansofĳinia to Camp Rosos.”1266 633. Johnson testifĳied that on another occasion, he reported misbehaviour on the part of one of the troops and the Accused Kamara did nothing in response.1267 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.

1262 George Johnson, Transcript 16 September 2005, pp. 72–73. 1263 TF1-334, Transcript 15 June 2005, p. 35. 1264 George Johnson, Transcript 16 September 2005, pp. 76–79. 1265 TF1-334, Transcript 15 June 2005, pp. 32–34. 1266 George Johnson, Transcript 20 September 2005, p. 59. 1267 George Johnson, Transcript 16 September 2005, pp. 76, 78–79. 1376 part iv

(iv) Conclusion 635. In light of the foregoing evidence, the Trial Chamber fĳinds that the AFRC faction in Port Loko District had a basic chain of command and a planning and orders process efffective for its needs. The Trial Chamber further fĳinds that the AFRC faction did not have an established disciplinary system. judgments 1377

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 offfences 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,1268 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 specifĳied 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.1269 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.1270 Since the ICTY and

1268 Agreement between the United Nations and the Government of Sierra Leone on the Establishment of a Special Court for Sierra Leone, 16 January 2000, annexed to the Report of the Secretary-General on the Establishment of a Special Court for Sierra Leone, UN Doc. S/2000/915, entered into force on 12 April 2002 pursuant to Article 21 of the Agreement. 1269 Report of the Secretary-General on the Establishment of a Special Court for Sierra Leone, 4 October 2000, UN Doc. S/2000/915, para. 12. 1270 Prosecutor v. Brima, Kamara, Kanu, Case No. SCSL-04-16-PT, Decision and Order on Defence Preliminary Motion on Defects in the Form of the Indictment, 1 April 2004, para. 24. See also 1378 part iv

ICTR also apply customary international law, the Special Court will, where appropriate, be guided by decisions of those tribunals for their persuasive value,1271 with necessary modifĳications and adaptations in view of the particular circumstances of the Special Court.1272

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.1273 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 qualifĳication of the ‘greatest responsibility requirement’ was a jurisdictional requirement.1274 In its Final Brief, the Prosecution submits that “the evidence

Prosecutor v. Sam Hinga Norman, Case No. SCSL-2004-14-AR72(E), Decision on Preliminary Motion Based on Lack of Jurisdiction (Child Recruitment), 31 May 2004, paras. 17 et seq. 1271 See Article 20(3) of the Statute. Although it explicitly addresses only the Appeals Chamber, the Trial Chamber fĳinds that as a matter of course, the provision equally applies to triers of fact at fĳirst instance. Regarding the ICTY’s application of customary international law, see Blaškić Appeal Judgement, paras. 110, 139, 141; Prosecutor v. Hadžihasanović et al., Case No IT-01-47-AR72, Decision on Interlocutory Appeal Challenging Jurisdiction in Relation to Command Responsibility, 16 July 2003 (“Hadžihasanović Appeal Decision of Command Responsibility”), paras. 12, 35, 44–46, 55. 1272 Prosecutor v. Brima, Kamara, Kanu, Case No. SCSL-04-16-PT, Decision and Order on Defence Preliminary Motion on Defects in the Form of the Indictment, 1 April 2004, paras. 24–25. 1273 Article 11 of the Statute. 1274 Prosecution Response to Defence Motion for Judgement of Acquittal Pursuant to Rule 98, 23 January 2006, para. 14. judgments 1379 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.”1275 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.’1276 644. Both the Kanu and Kamara Defence submit that the ‘greatest responsibility requirement’ should be understood to be a jurisdictional requirement.1277 645. The Kanu Defence adopts the fĳinding 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.1278 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

1275 Prosecution Final Brief, para. 153. 1276 See Prosecution closing arguments, transcript 7 December 2006 pages 63–66. 1277 Kamara Final Brief, paras. 73–75; Kanu Final Brief, paras. 107–109. 1278 Kanu Final Brief, para. 107, which contains an incorrect statement that “Trial Chamber 1 in the case of Prosecutor v. Norman held that the issue of personal jurisdiction is a jurisdictional requirement. This was afffĳirmed by Trial Chamber II in the Rule 98 Decision”; see also Prosecutor v. Sam Hinga Norman, Moinina Fofana and Allieu Kondewa, Case No. SCSL-04-14-PT, Decision on the Preliminary Motion on the Lack of Personal Jurisdiction Filed on Behalf of the Accused Fofana, 3 March 2004 (“Fofana Decision on Lack of Personal Jurisdiction”), para. 27. 1380 part iv

humanitarian law and Sierra Leonean law is an evidentiary matter to be determined at the trial stage.1279 646. On this basis, the Kanu Defence submits that the Prosecution has not satis- fĳied 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.”1280 The Kanu Defence thereby submits that the Trial Chamber should either fĳind 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.’1281 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 satisfĳied that threshold requirement of selecting the three Accused among many senior military offfĳicers in the AFRC government and ‘faction,’ as bearing that utmost liability.”1282 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 efffĳicacy” of the Prosecution’s exercise of discretion and strategy.1283 It concludes that Kamara does not, either legally or factually, qualify as one of those who bear the ‘greatest responsibility.’1284 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.1285 (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.1286 It is a well established principle of international law, codifĳied in the

1279 Fofana Decision on Lack of Personal Jurisdiction, para. 44. 1280 Kanu Final Brief, para. 108, referring to Rule 98 Decision, para. 34. 1281 Kanu Final Brief, para. 109. 1282 Kamara Final Brief, para. 73. 1283 Kamara Final Brief, para. 75, citing incorrectly Rule 98 Decision, para. 39. 1284 Kamara Final Brief, para. 88. 1285 Brima Final Brief, para. 114. 1286 See Report of the Secretary General on the establishment of a Special Court for Sierra Leone, 4 October 2000, S/2000/915, para. 9; see also Prosecutor v. Morris Kallon, Sam Hinga Norman and judgments 1381

“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.”1287 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,1288 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.”1289 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.1290 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.1291 The President of the Security Council then confĳirmed 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.1292 Thereafter, the Government of Sierra Leone accepted this position.1293

Brima Bazzy Kamara, Case No. SCSL-2004-15-AR72(E)/SCSL-2004-14-AR72(E)/SCSL-2004-16-AR72(E), Decision on Constitutionality and Lack of Jurisdiction, 13 March 2004, para. 42. 1287 Vienna Convention on the Law of Treaties, signed in Vienna on 23 May 1969, entered into force on 27 January 1980, Article 31(1), emphasis added; see also Prosecutor v. Moris Kallon, Sam Hinga Norman and Brima Bazzy Kamara, Case No. SCSL-2004-15-AR72(E)/SCSL-2004-14-AR72(E)/SCSL- 2004-16-AR72(E), Decision on Constitutionality and Lack of Jurisdiction, 13 March 2004, para. 43. 1288 Resolution 1315(2000), 14 August 2000, p. 2. 1289 Report of the Secretary General on the Establishment of a Special Court for Sierra Leone, S/2000/915, 4 October 2000 (“Secretary General’s 2000 Report”), para. 30. 1290 Letter dated 22 December 2000 from the President of the Security Council to the Secretary General, S/2000/1234, p. 1. 1291 Letter dated 12 January 2001 from the Secretary General to the President of the Security Council, S/2001/40. 1292 Letter dated 31 January 2001 from the President of the Security Council to the Secretary General, S/2001/95. 1293 Letter dated 12 July 2001 from the Secretary General to the President of the Security Council, S/2001/693, p. 1. 1382 part iv

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 fĳinding 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.”1294 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 fĳirst 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.1295 657. The Security Council maintained its position that ‘the greatest responsibility requirement’ limited the “focus of the Special Court to those who played a

1294 Fofana Decision on Lack of Personal Jurisdiction, para. 44. 1295 Secretary General’s 2000 Report, para. 30. judgments 1383 leadership role.”1296 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.1297 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.1298 ‘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.1299

1296 Letter dated 22 December 2000 from the President of the Security Council addressed to the Secretary General, S/2000/1234, p. 1. 1297 Letter dated 31 January 2001 from the President of the Security Council addressed to the Secretary General, S/2001/95; Letter dated 12 July 2001 from the Secretary General addressed to the President of the Security Council, S/2001/693, p. 1. 1298 Statute, Article 7, “Jurisdiction over Persons of 15 Years of Age”: “1. The Special Court shall have no jurisdiction over any person who was under the age of 15 at the time of the alleged commission of the crime. Should any person who was at the time of the alleged commission of the crime between 15 and 18 years of age come before the court, he or she shall be treated with dignity and a sense of worth, taking into account his or her young age and the desirability of promoting his or her rehabilitation, reintegration into and assumption of a constructive role in society, and in accordance with international human rights standards, in particular the rights of the child. 2. In the disposition of a case against a juvenile offfender, the Special Court shall order any of the following: care guidance and supervision orders, community service orders, counselling, foster care, correctional, educational and vocational training programmes, approved schools and as appropriate, any programmes of disarmament and reintegration or programmes of child protection agencies.” 1299 Indictment, para. 41; see also Indictment, para. 20, explaining that “[t]he words civilian or civilian population used in this Indictment refer to persons who took no active part in the hostilities, or who were no longer taking an active part in the hostilities.” 1384 part iv

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.1300 Such prohibition was fĳirst 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.1301 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.1302 663. Terror against a civilian population was fĳirst referred to as a war crime in a report published in 1919 by the Commission of Responsibilities.1303 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

1300 Prosecutor v. Stanislav Galić, Case No. IT-98-29-A, Judgement, 30 November 2006 (“Galić Appeal Judgement”), para. 86, holding that “it is satisfĳied that the prohibition of terror against the civilian population as enshrined in Article 51(2) of Additional Protocol I and Article 13(2) of Additional Protocol II, was a part of customary international law from the time of its inclusion in those treaties. The Appeals Chamber, by majority, Judge Schomburg dissenting, is further satisfĳied that a breach of the prohibition of terror against the civilian population gave rise to individual criminal responsibility pursuant to customary international law at the time of the commission of the offfences for which Galić was convicted [1992–1993].” 1301 Report of the Bryce Committee, 1914, extract in E. Stowell, H. Munro, International Cases (Boston: Hougton Miffflin Company, 1916), p. 173; see also United Nations War Crimes Commission, History of the United Nations War Crimes Commission and the Development of the Laws of War (London: HMSO, 1948), pp. 34–35, stating that “[n]ot even prisoners, or wounded, or women, or children have been respected by belligerents who deliberately sought to strike terror into every heart for the purpose of repressing all resistance.” 1302 With regard to international conventions, see Draft Convention for the Protection of Civilian Populations Against New Engines of War, Amsterdam, 1938; Declaration of Minimum Humanitarian Standards, reprinted in Report of the Sub-Commission on Prevention of Discrimination and Protection of Minorities on its 46th Session, Commission on Human Rights, 51st Session., Provisional Agenda Item 19, at 4, U.N. Doc. E/CN.4/1995/116 (1995); with regard to domestic military manuals, see Galić Appeal Judgement, fn. 286, referring to, inter alia, Germany, Humanitarian Law in Armed Conflicts, Manual DSK VV207320067, edited by the Federal Ministry of Defence of the Federal Republic of Germany, VRII 3, August 1992; Nigeria, The Laws of War, by Lt. Col. L. Ode PSC, Nigerian Army, Lagos, undated (Manuals on the Laws of War), para. 20; Russia, Instructions on the Application of the Rules of International Humanitarian Law by the Armed Forces of the USSR, Appendix to Order of the USSR Defence Minister No. 75, 1990 (Military Manual), para. 5(n). 1303 UN War Crimes Commission, History of the United Nations War Crimes Commission and the Development of the Laws of War (London: HSMO, 1948), Chapter III, see also Galić Appeal Judgement, para. 93, explaining that the Commission on Responsibilities was created by the Peace Conference of Paris to inquire into breaches of the laws and customs of war committed by Germany and its allies during the First World War. judgments 1385 civilian population under Article 6 of the Nuremberg Charter.1304 Further, post World War II domestic tribunals incorporated the crimes of ‘systematic terrorism’1305 and ‘systematic terror’1306 in their statutes. Finally, provisions criminalising terror against the civilian population as a method of warfare were incorporated into numerous domestic legislations.1307

1304 London Agreement and Annexed Charter of the International Military Tribunal for the Prosecution and Punishment of the German Major War Criminals, London, 8 August 1945 (“Nuremberg Charter”). 1305 United Nations War Crimes Commission, Law Reports of Trials of War Criminals (London: HSMO, 1947–1948), Vol. 5, pp. 94–97; Vol. 14, pp. 35–38. 1306 Decree No. 44 91946), in Staatsblad van Nederlandsch-Indië, Article 2 1(2), Trial of Shigeki Motomura, United Nations War Crimes Commission, Law Reports of Trials of War Criminals (London: HSMO, 1947–1948), Vol. 13, p. 138. 1307 Galić Appeal Judgement, fn. 297: “Czech Republic, Trestní zákon (Criminal Code), Act No. 140/1961 Coll. 29 November 1961, as amended by Act No. 305/1999 Coll. of 18 November 1999, art. 263(a)(1); Slovakia, Trestní zákon (Criminal Code), Act. No. 140/1961 Coll. 29 November 1961, as amended, art. 263(a)(1). The Appeals Chamber notes the continuing trend of nations criminalising terror as a method of warfare. See, e.g., Argentina, Draft Code of Military Justice (1998), art. 291, introducing a new article 875(1) in the Code of Military Justice as amended (1951): punishes “acts or threats of violence whose primary aim is to terrorise”; Bosnia & Herzegovina, Criminal Code of the Federation of Bosnia and Herzegovina No. 327, adopted on 29 July 1998, published in Službene Novine Federacije Bosne i Hercegovine, No. 43/98, 20 November 1998, art. 154(1): criminalises “the application of measures of intimidation and terror” against civilians (1998); Colombia, Ley 599 de 2000 (julio 24) por la cual se expide el Código Penal (Penal Code), published in Diario Ofĳicial, No. 44.097, 24 July, 2000, art. 144: imposes criminal sanction on “anyone who, during an armed conflict, carries out or orders the carrying out of […] acts or threats of violence whose primary purpose is to terrorise the civilian population”; Croatia, Criminal Code (1997), art. 158(1): imposes criminal sanctions on “whoever, in violation of the rules of international law, at a time of war, armed conflict or occupation, […] orders […] the imposition of measures of intimidation and terror”; El Salvador, Código Penal de la Republica de El Salvador, Decreto No. 1030, Título XIX, (Criminal Code, as amended 1998), art. 362: criminalises violations of “international laws […] of war” (El Salvador rati- fĳied Additional Protocols I and II, in their entireties, on November 23, 1978); Finland, Penal Code, Act. No. 39/1889, as amended by Act No. 578/1995 of the Finnish legislative gazette (Suomen säädös- kokoelma), issued 21 April 1995, Chapter 11, art. 1: imposes criminal sanction on “a person who in an act of war […] otherwise violates the provisions of an international agreement on warfare binding on Finland” (Finland ratifĳied Additional Protocols I and II, in their entireties, on August 7, 1980); Ireland, Geneva Conventions Act (1962), as amended by Act No. 35 of 13 July 1998, published in The Acts of the Oireachtas as promulgated, sec. 4: criminalises any “minor breach” of Additional Protocol I, including violations of Article 51(2), as well as any “contravention” of Additional Protocol II, including violations of Article 13(2) (Ireland ratifĳied Additional Protocols I and II, in their entireties, on May 19, 1999); Lithuania, Lietuvos Respublikos baudziamas kodeskas (Criminal Code of the Republic of Lituania), 26 June 1961, published in Valstybes zinios, No. 18–147, 1961, as amended 9 June 1998, art. 336: criminalises “the use of intimidation and terror” in time of war, armed conflict or occupation; Mauritius, Geneva Conventions (Amendment) Act, Act No. 2 of 2003, Government Gazette, 17 May 2003, General Notice 722, section 4(e), amending section 3 of the Geneva Conventions Act of 1970: criminalises breaches of the Additional Protocols under Mauritian law (Mauritius ratifĳied Additional Protocols I and II, in their entireties, on March 22, 1983); Mexico, Código Penal Federal (Federal Criminal Code as amended 2006), First Book, Preliminary Title, art. 6: criminalises acts which are an offfence under an international treaty to which Mexico is a party (Mexico ratifĳied the entirety of Additional Protocol I on March 10, 1983); Russia, Criminal Code of the Russian Federation, No. 63-FZ, 13 June 1996, promulgated in Collection of legislation of the Russian Federation, No. 25, 17 June 1996, art. 356(1): punishes the “cruel treatment of […] the civilian population” and the use in an armed conflict of “means and methods prohibited by an international treaty of the Russian Federation” 1386 part iv

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.1308 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.1309 666. In light of the foregoing, the Trial Chamber fĳinds 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.1310 668. The ICTY Appeals Chamber in the Galić case provided further clarifĳication as to these elements of the crime. With regard to the actus reus, it held that

(Russia ratifĳied Additional Protocols I and II, in their entireties, on September 29, 1989); Spain, Ley Orgánica 10/1995, de 23 de Noviembre, del Código Penal (Penal Code), published in Boletín Ofĳicial del Estato, No. 281, 24 November 1995, art. 611(1): punishes anyone who, during an armed conflict, makes the civilian population the object of “acts or threats of violence whose primary purpose is to terrorise them”; Yemen, Military Criminal Code, Law No. 21/1998 relative to military offfences and penalities, 25 July 1998, published in Offfĳicial Gazette of the Republic of Yemen, No. 18, 20 September 1999: criminalises all acts which constitute an offfence against persons or property protected under international agreements to which Yemen is a party (Yemen ratifĳied Additional Protocols I and II, in their entireties, on April 17, 1990).” 1308 No charges of terrorism have been adjudicated before the ICTR to date. 1309 Prosecutor v. Stanislav Galić, Case No. IT-98-29-T, Judgement, 5 December 2003 (“Galić Trial Judgement”); Prosecutor v. Stanislav Galić, Case No. IT-98-29-A, Judgement, 30 November 2006; Prosecutor v. Zejnil Delalić, Zdravko Mucić aka “Pavo,” Hazim Delić and Esad Landzo aka “Zenga,” Case No. IT-96-2-T, 16 November 1998 (“Čelebići Trial Judgement”); Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-T, Judgement, 3 March 2000 (“Blaškić Trial Judgement”); Prosecutor v. Radislav Krstić, Case No. IT-98-33-T, Judgement, 2 August 2001 (“Krstić Trial Judgement”). 1310 See Rule 98 Decision, para. 49; see also Prosecutor v. Norman et al., SCSL-2004-14-T-473, Decision on Motions for Judgement of Acquittal Pursuant to Rule 98, 21 October 2005, para. 112. judgments 1387

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.1311 669. Actual terrorisation of the civilian population is not an element of the crime. The requisite mens rea is composed of the specifĳic 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.1312 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.1313 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, property thus plays an important role in defĳining the contours of this crime. What places acts of terrorism apart from other crimes directed against property is the specifĳic 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.1314 671. Therefore, this Trial Chamber endorses the fĳinding 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 […]”

1311 Galić Appeal Judgement, para. 102 (footnotes omitted), referring to Prosecutor v. Stanislav Galić, Case No. IT-98-29-T, Indictment, paras. 4(b), 4(c). 1312 Galić Appeal Judgement, para. 104. 1313 Kanu Defence Trial Brief, paras. 7–18. 1314 In this regard, see Kanu Defence Trial Brief, para. 16, submitting that “another reason why the defĳinition should exclude the ‘property’ element is that terrorism should be directed at sowing terror. The question raised here is whether an attack on someone’s property can actually be categorised as terrorising people.” As demonstrated above, the Trial Chamber holds that it can. 1388 part iv where such acts were committed with the primary purpose of spreading terror amongst the civilian population.1315

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 sufffĳicient 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.1316 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.”1317 This prohibition was later incorporated in Article 33(1) of Geneva Convention IV,1318 Article 75(2)(d) of Additional Protocol I and Article 4(2)(b) of Additional Protocol II. It is now fĳirmly enshrined in a variety of international documents1319 and in domestic military legislations.1320

1315 Prosecutor v. Sam Hinga Norman, Moinina Fofana, Allieu Kondewa, Case No. SCSL-04-14-T, Decision on Motions for Judgement of Acquittal Pursuant to Rule 98, 21 October 2005, para. 112. See also Prosecution Final Brief, para. 978. 1316 Indictment, para. 41. 1317 Convention (II) with Respect to the Laws and Customs of War on Land and its Annex: Regulations Concerning the Laws and Customs of War on Land, 29 July 1899, The Hague (“1899 Hague Regulations”). 1318 “No protected person may be punished for an offfence he or she has not personally committed. Collective penalties and likewise all measures of intimidation or of terrorism are prohibited.” 1319 Hague Convention (IV), Respecting the Laws and Customs of War on Land, and its annex: Regulations Concerning the Laws and Customs of War on Land, The Hague, 18 October 1907 (“1907 Hague Regulations”), Article 50: “No general penalty, pecuniary or otherwise, shall be inflicted upon the population on account of the acts of individuals for which they cannot be regarded as jointly and severally responsible […]”; see also Declaration on the Protection of Women and Children in Emergency and Armed Conflict, United Nations General Assembly, Res. 3318 (XXIX), 14 December 1975, para. 5, according to which “[a]ll forms of […] collective punishment […] committed by belligerents in the course of military operation or in occupied territories shall be considered criminal […]”; African Charter on Human and People’s Rights, adopted 27 June 1981, OAU Doc. CAB/LEG/67/3 rev. 5, 21 LL.M 58 (1982), entered into force on 21 October 1986 (“African Charter on Human Rights”), Article 7(2) providing that “[p]unishment is personal and can be imposed only on the offfender […]”; Doc A/46/10, Report of the International Law Commission on the Work of its 43rd Session, 29 April- 19 July 1991, Offfĳicial Records of the General Assembly, 46th Session, Supplement No. 10, extract from the Yearbook of the International Law Commission-1991, vol. II(2), the Draft Code of Crimes Against the Peace and Security of Mankind, Article 22(2)(a), wherein ‘collective punishment’ is characterised as an ‘exceptionally serious war crime.’ 1320 United Kingdom Military Manual (1958), para. 647, stating that “the Hague Rules forbid collective punishment, in the form of a general pecuniary or other penalty, of the population for acts of judgments 1389

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.”1321 675. In light of the foregoing, the Trial Chamber fĳinds 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.1322 677. In respect of the fĳirst 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.1323 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.”1324 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 individuals for which the population as a whole cannot be regarded as jointly or severally responsible […]”; Argentina, Law of War Manual (1969), para. 4.012, wherein “collective punishments of the civilian population” is prohibited; Belgium, Law of War Manual (1983), p. 50, according to which ‘it is prohibited to impose collective punishments.” 1321 United Nations Secretary General, Report on the Establishment of a Special Court for Sierra Leone, UN. Doc. S/2000/915, 4 October 2000 (“Secretary General’s 2000 Report”), para. 14. 1322 See also Rule 98 Decision, para. 62. 1323 Kanu Final Brief, para. 22. See also Prosecutor v. Norman, Fofana, Kondewa, Case No. SCSL-04- 14-T, Decision on Motions for Judgement of Acquittal Pursuant to Rule 98, 21 October 2005 (“CDF Rule 98 Decision”), para. 118. 1324 Prosecution Final Brief, para. 986. 1390 part iv individual responsibility. This principle afffĳirms that responsibility is personal in nature and that no one may be punished for an act he or she has not personally committed.1325 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 offfence 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 fĳirst 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 fĳirst 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.’1326 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 confĳiscation 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.1327

1325 See International Committee of the Red Cross, Commentary on the Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War of 12 August 1949, J. Pictet ed., (Geneva: Martinus Nijhofff Publishers, 1958) at 225. 1326 See ICRC Commentary of the Additional Protocols, para. 1374 regarding Article 75.2(d) of Additional Protocol I: “[Collective punishments include] not only penalties imposed in the normal judicial process, but also any other kind of sanction (such as confĳiscation 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.” 1327 ICRC Commentary of the Additional Protocols, para. 1374; see also ICRC Commentary of Geneva Convention IV, Article 33, para. 225, stating that “[the term of collective punishments] does judgments 1391

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.1328 (a) Count 3: Extermination (Article 2(b) of the Statute) 683. Extermination as a crime against humanity has been defĳined 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.”1329 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.1330 However, knowledge of a “vast scheme of collective murder” is not an element required for extermination.1331 Unlike the crime of Genocide, the crime of Extermination does not require a discriminatory intent.1332 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 signifĳicant part of a population; and 2. The killing or destruction constituted part of a mass killing of members of a civilian population.1333

not refer to punishments inflicted under penal law, i.e. sentences pronounced by a court after due process of law, but penalties of any kind inflicted on persons or entire groups of persons, in defĳiance of the most elementary principles of humanity, for acts that these persons have not committed.” 1328 Indictment, paras. 42–50. 1329 Akayesu Trial Judgement, paras. 590–592; Kayishema Trial Judgement, paras. 137–147; Rutaganda Trial Judgement, paras. 82–84; Prosecutor v. Krstić, ICTY IT-98-33-T, Trial Chamber Judgement, 2 August 2001, (“Krstić Trial Judgement”), para. 503. 1330 Kayishema Trial Judgement, para. 147. 1331 Prosecutor v. Milomir Stakić, IT-97-24-A, Judgement, 22 March 2006, (“Stakić Appeal Judgement”), para. 259; Prosecutor v. Milomir Stakić, Case No. IT-97-24-T, Judgement, 29 October 2003 (“Stakić Trial Judgement”), para. 640. 1332 Krstić Trial Judgement, para. 500. 1333 Rule 98 Decision, para. 73. 1392 part iv

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.1334 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.1335 686. The requisite scale of killings for extermination has been described as ‘vast,’ ‘massive’ or ‘large.’1336 In this context, the Kanu Defence submits that the Prosecution carries the burden of establishing that ‘mass’ killings occurred.1337 The Trial Chamber notes that, although most cases from the Second World War employed the term of ‘extermination’ to address thousands of killings,1338 no minimum number of victims is required as long as it is a numerically signifĳicant part of any given population.1339 Furthermore, the element of massiveness required for a fĳinding 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.1340

1334 Brđanin Trial Judgement, para. 389; Vasiljević Trial Judgement, para. 227. 1335 Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Decision on Motion for Acquittal Pursuant to Rule 98bis, 28 November 2003, para. 74; but see Vasiljević Trial Judgement, para. 222. 1336 Vasiljević Trial Judgement, para. 228 (‘vast’); Brđanin Trial Judgement, para. 388 (‘massive’); Brđanin Trial Judgement, para. 389 (‘large’). 1337 Kanu Defence Trial Brief, para. 40; see also Kamara Final Trial Brief, para. 109. 1338 Vasiljević Trial Judgement, fn. 587, wherein the Trial Chamber states that “in one case, the court used the expression ‘extermination’ when referring to the killing of 733 civilians (Unites States v. Ohlendorf and others (“Einsatzgruppen case”), IV Trials of War Criminals before the Nuremberg Military Tribunal under Control Council Law No 10, 421). The Trial Chamber is not aware of cases which, prior to 1992, used the phrase ‘extermination’ to describe the killing of less than 733 persons. The Trial Chamber does not suggest, however, that a lower number of victims would disqualify that act as ‘extermination’ as a crime against humanity, nor does it suggest that such a threshold must necessarily be met.” 1339 Brđanin Trial Judgement, para. 465, being satisfĳied that the killing of 1669 Bosnian Muslims fulfĳils the massiveness requirement of ‘extermination’; Stakić Trial Judgement, paras. 654, 655, fĳind- ing that the killing of more than 1500 individuals also fulfĳil the element of massiveness; Prosecutor v. Krajišnik, Case No. IT-00-39-T, Judgement, 27 September 2006 (“Krajišnik Trial Judgement”), para. 720, fĳinding that an incident in which 17 people were killed reached the requisite element of massiveness of extermination. See also Ntakirutimana Appeal Judgement, para. 516; Stakić Appeal Judgement, paras. 260–261; Brđanin Appeal Judgement, para. 471, stating that there is “no numerical threshold” with respect to the actus reus of extermination. 1340 Brđanin Trial Judgement, para. 391; Stakić Trial Judgement, para. 640; but see Krajišnik Trial Judgement, para. 716, according to which “[t]he killings constituting the extermination must form part of the same incident, taking into account such factors as the time and place of the killings, the selection of the victims and the manner in which they are targeted.” Applying this rationale, the Krajišnik Trial Chamber, para. 720, found that “the element of mass scale is fulfĳilled, considering the number of deaths in each incident and the circumstances surrounding the deaths […]” in respect of specifĳic locations, including a village where 17 people were killed. judgments 1393

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.1341 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.1342 (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 defĳining murder are identical regardless of the provision under which it is charged.1343 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.1344 689. For the actus reus of murder to be satisfĳied, the Prosecution is required to establish beyond reasonable doubt that the perpetrator’s conduct substantially contributed to the death of the person.1345 This does not necessarily require proof that the dead body of that person has been recovered.1346 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

1341 Prosecutor v. Milomir Stakić, Case No. IT-97-24-A, Judgement, 22 March 2006 (“Stakić Appeal Judgement”), para. 260; Prosecutor v. Elizaphan Ntakirutimana and Gerard Ntakirutimana, Cases No. ICTR-97-10-A and ICTR-97-14-A, 13 December 2004 (“Ntakirutimana Appeal Judgement”), para. 522. 1342 Stakić Appeal Judgement, paras. 260–261; Ntakirutimana Appeal Judgement, para. 516. 1343 Krstić Trial Judgement, paras. 484–485; Stakić Trial Judgement, para. 631; Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement, 1 September 2004 (“Brđanin Trial Judgement”), para. 380; Prosecutor v. Naser Orić, Case No. IT-03-68-T, Judgement, 30 June 2006 (“Orić Trial Judgement”), para. 345; Krajišnik Trial Judgement, para. 848. 1344 Rule 98 Decision, para. 74. 1345 Orić Trial Judgement, para. 347; see also Čelebići Trial Judgement, fn. 435, providing the results of its examination of various domestic legal systems, including that of England, Australia, Belgium and Norway. 1346 See Krnolejac Trial Judgement, para. 326; Tadić Trial Judgement, para. 240. 1394 part iv the perpetrator.1347 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.1348 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.1349

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.1350 (a) Count 6: Rape (Article 2(g) of the Statute) 692. The prohibition of the crime of rape in armed conflict is fĳirmly enshrined in customary international law.1351 Rape was proscribed as a crime against humanity

1347 Prosecutor v. Duško Tadić, Case No. IT-94-1-AR77, Judgement on Allegation of Contempt Against Prior Counsel, Milan Vujin, 31 January 2000, para. 91; Čelebići Appeal Judgement, para. 458; Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement, 15 March 2002 (“Krnojelac Trial Judgement”), para. 327; Vasiljević Appeal Judgement, para. 120. 1348 Krnojelac Trial Judgement, para. 327, fn. 857, providing an extensive list of case-law from the European Court of Human Rights, the Inter-American Court of Human Rights and domestic legal systems. 1349 Akayesu Trial Judgement, para. 588; Prosecutor v. Kayishema and Ruzindana, Case No. ICTR- 95-1-A, Judgement, 1 June 2001 (“Kayishema Appeal Judgement”), para. 151; Brđanin Trial Judgement, para. 386; Oric Trial Judgement, para. 348. 1350 Indictment, paras. 51–57. With regard to the law on Count 8 (Other Inhumane Acts), see para. 697 et. seq, infra. 1351 The prohibition against rape is codifĳied as far back at the Lieber Code of 1863, Francis Lieber, Laws of War: Instructions for the Government of Armies of the United States in the Field, General Orders No. 100, Adjutant General’s Offfĳice, 24 April 1863 (“Lieber Code”), Articles 44, 47. Rape was implicitly prohibited in the 1907 Hague Regulations which state at Article 46 that [f]amily honour and rights […] must be respected, Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulation concerning the Laws and Customs of War on Land, 3 Martens Nouveau Recueil (ser. 3) 461, 187 Consol. T.S. 227, entered into force 26 January, 1910.; Article 27 of Geneva Convention IV, 1949, states, “Women shall be especially protected against any attack on their honour, in particular against rape, enforced prostitution, or any form of indecent assault. Geneva Convention relative to the judgments 1395 in the Allied Control Council Law No. 10 and prosecuted as ‘inhuman acts’ before the Tokyo Tribunal.1352 Rape as a crime against humanity is found in the statutes of the ICTY, the ICTR and the ICC1353 and has been defĳined largely through the jurisprudence of the ICTY and the ICTR.1354 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 efffect this sexual penetration, and the knowledge that it occurs without the consent of the victim.1355 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.1356 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.1357 This is necessarily a contextual assessment. However, in situations of armed

Protection of Civilian Persons in Time of War, 75 U.N.T.S. 287, entered into force 21 October 1950.; Rape is prohibited by Article 76(1) of Additional Protocol I, Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, 1125 U.N.T.S. 3, entered into force 7 December 1978, and by Article 4(2)(e) of Additional Protocol II, Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, 1125 U.N.T.S. 609, entered into force 7 December 1978. Rape was recognised as a “grave breach” of the Geneva Conventions by the UN Security Council in 1994, Final Report of the Commission of experts established pursuant to Security Council Resolution 780, UN Doc. S/1994/674, paras. 58–60 and 232–253. 1352 Control Council Law No. 10, Article II(1)(c); M. Boot, C.L. Hall, R. Dixon, “Article 7, Crimes Against Humanity” in Otto Trifffterer (ed.), Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article, 1999, pp. 140–141. 1353 ICTY Statute, Article 5(g); ICTR Statute, Article 3(g); Rome Statute, Article 7(1)(g). Rape is also designated as a crime against humanity in Article 18(j) of the Draft Code of Crimes Against the Peace and Security of Mankind, adopted by the International Law Commission (“ILC|”) at its 48th session, 1996, submitted to the General Assembly as part of ILC Report covering the work of that session. 1354 See Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgement, 2 September 1998, paras. 596–598; Prosecutor v. Zejnil Delalić, Zdravko Mučić, Hazim Delić and Esad Landžo, Case No. IT-96-21-T, Judgement, 16 November 1998; Prosecutor v. Anto Furundžija, Case No. IT-95-17/1-T, Judgement, 10 December 1998, para. 185; Prosecutor v. Alfred Musema, Case No. ICTR-96-13-T, Judgement and Sentence, 27 January 2000, paras. 228–229; Prosecutor v. Dragoljub Kunarac, Radomir Kovač and Zoran Vuković, Case No. IT-96-23-T & IT-96-23/1-T, Judgement, 22 February 2001, paras. 438 et seq.; Kunarac Appeal Judgement, 12 June 2002, paras. 128–130; Prosecutor v. Laurent Semanza, Case No. ICTR-97-20-T, Judgement and Sentence, 15 May 2003, paras. 344–45. 1355 Rule 98 Decision, para. 106, referring to Kunarac Appeal Judgement, para. 127. 1356 Kunarac Appeal Judgement, para. 127. 1357 Kunarac Appeal Judgement, paras. 129–130. 1396 part iv 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.1358 Children below the age of 14 cannot give valid consent.1359 695. The Trial Chamber acknowledges that the very specifĳic 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 difffĳicult to satisfy. Circumstantial evidence may therefore be used to demonstrate the actus reus of rape.1360 (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.1361

(c) Count 8: Other Inhumane Acts (Article 2(i) of the Statute) (i) Elements of the Crime 697. The offfence 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 offfence 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 afffront to human dignity.1362 Listing the underlying acts exhaustively would only create

1358 Kunarac Appeal Judgement, paras. 128–130, 133; see also Gay J. McDougall, Systematic Rape, Sexual Slavery and Slavery-like Practices During Armed Conflict, Final Report submitted to the Commission on Human Rights Sub-commission on Prevention of Discrimination and Protection of minorities, 50th session, UN Doc. E/CN.4/Sub.2/1998/13, 22 June 1998, para. 25, stating that “[t]he manifestly coercive circumstances that exist in all armed conflict situations establish a presumption of non-consent and negates the need for the prosecution to establish the lack of consent as an element of the crime.” 1359 See Article 5.a. of the Statute, which provides that “[t]he Special Court shall have the power to prosecute persons who have committed the following crimes under Sierra Leonean law: a. Offfences relating to the abuse of girls under the Prevention of Cruelty to Children Act, 1926 (Cap. 31): i. Abusing a girl under 13 years of age, contrary to section 6; ii. Abusing a girl between 13 and 14 years of age, contrary to section 7; iii. Abduction of a girl for immoral purposes, contrary to section 12.” 1360 Prosecutor v. Mikaeli Muhimana, Case No. ICTR-95-1B-A, Judgement, 21 May 2007 (“Muhimana Appeal Judgement”), para. 49; Sylvestre Gacumbitsi v. The Prosecutor, Case No. ICTR-2001-64-A, Judgement, 7 July 2006 (“Gacumbitsi Appeal Judgement”), para. 115. 1361 Alleged Defects in the Form of the Indictment, paras. 92–95, supra. 1362 Prosecutor v. Norman et al., SCSL-04-14-PT, Reasoned Majority Decision on Prosecution Motion for a Ruling on the Admissibility of Evidence, 24 May 2005, para. 19(iii). judgments 1397 undesirable opportunities to evade the letter of the prohibition.1363 The crime of ‘other inhumane acts’ was fĳirst 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.1364 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 sufffering, 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.1365 699. The seriousness of a particular act or omission and the sufffĳiciency 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.1366 The act or omission must have a direct and seriously damaging, though not necessarily long-term, efffect on the victim.1367 700. As regards mens rea, it must be established that the perpetrator had the intent to inflict serious physical sufffering, 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 sufffering, or serious injury to body or to

1363 Prosecutor v. Zoran Kupreškić, Mirjan Kupreškić, Vlatko Kupreškić, Drago Josipović, Dragan Papić and Vladimir Šantić aka “Vlado,” Case No. IT-95-16-T, Judgement, 14 January 2000 (“Kupreškić Trial Judgement”), para. 563; Akayesu Trial Judgement, para. 582; Rutaganda Trial Judgement, para. 76; see also Report of the ILC on the work of his 40th session, 6 May-26 June 1996, UNGAOR 51st Session Supp. No. 10 (A/51/10) (Crimes against the Peace and Security of Mankind), para. 17, p. 103, commenting that “[t]he Commission recognised that it was impossible to establish an exhaustive list of the inhumane acts which might constitute crimes against humanity. First, this category of acts is intended to include only additional acts that are similar in gravity to those listed in the preceding subparagraphs. Second, the act must in fact cause injury to a human being in terms of physical or mental integrity, health or human dignity.” 1364 Stakić Appeal Judgement, para. 315, with further references. 1365 See Rome Statute, Elements of Crimes, Article 7(1)(k). 1366 Kayishema Trial Judgement, para. 148–151; Čelebići Trial Judgement, para. 536; Kunarac Trial Judgement, para. 504. 1367 Re P., Appellate Court, Judgement of 20 May 1948, Criminal Chamber 3/48: “[T]he act which was committed must afffect the human being in the depths of his being. That is the physical and spiri- tual domain of being and acting which constitutes the value and dignity of the person according to the moral convictions of civilised humanity […]”; Kunarac Trial Judgement, para. 501; Krnojelac Trial Judgement, para. 144. 1398 part iv mental or physical health, or constituted a serious attack on human dignity and nevertheless accepted that risk.1368 (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.”1369 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 suf- fĳiciently 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 qualifĳied 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.’”1370 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.”1371

1368 Vasiljević Trial Judgement, para. 236; Prosecutor v. Zlatko Aleksovski, Case No. IT-95-14/1-T, Judgement, 25 June 1999 (“Aleksovski Trial Judgement”), para. 56; Kayishema Trial Judgement, para. 153. 1369 See Prosecution Final Brief, para. 1009–1012. 1370 Kanu Final Brief, para. 56. 1371 Kanu Final Brief, para. 48. judgments 1399

(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.1372 “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.1373 Having now examined the whole of the evidence in the case, the Trial Chamber by a majority1374 is not satisfĳied 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 specifĳic form of slavery.1375 The prohibition against slavery is a customary norm of international law and the establishment of enslavement as a crime against humanity is fĳirmly entrenched.1376 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.1377 706. While sexual slavery is not specifĳically 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 signifĳicant 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.1378

1372 See, e.g., Stakić Appeal Judgement, paras. 313–316; Prosecutor v. Eliézer Niyitegeka, Case No. ICTR-96-14-T, Judgement, 16 May 2003 (“Niyitegeka Trial Judgement), para. 460; Prosecutor v. Juvenal Kajelijeli, Case No. ICTR-98-44A-T, Judgement and Sentence, 1 December 2003 (“Kajelijeli Trial Judgement”), para. 931; Kupreškić Trial Judgement, para. 563. 1373 Rule 98 Decision, para. 165. 1374 Dissenting Opinion of Justice Doherty, Separate and Concurring Opinion of Justice Sebutinde. 1375 Special Rapporteur on Contemporary forms of Slavery, Final report on Contemporary forms of Slavery: Systemic rape, sexual slavery and slavery-like practices during armed conflict, E/CN.4/ Sub.2/1998/13, 22 June 1998, at para. 29. 1376 The state of the law of slavery is discussed in relation to Count 13 (enslavement) at paras. 739–749, infra. 1377 Special Rapporteur on Contemporary Forms of Slavery, Update to the fĳinal report on Systematic rape, sexual slavery and slavery-like practices during armed conflict E/CN.4/Sub.2/2000/21, 6 June 2000, at para. 51. 1378 The Prosecution in the Kunarac case grouped charges of enslavement and rape as crimes against humanity together due to the inter-related factual basis (systemic rape and enslavement of women in the city of Foča) of the crimes, Kunarac, Case No. IT-96-23-PT, Amended Indictment, 1 December 1999, Counts 14 to 17. A conviction was entered for enslavement as a crime against humanity involving rape, treatment of girls as private property and forced performance of 1400 part iv

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 codifĳies sexual slavery as a crime against humanity.1379 (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.1380 709. The powers of ownership listed in the fĳirst element of sexual slavery are non-exhaustive. There is no requirement for any payment or exchange in order to establish the exercise of ownership.1381 Deprivation of liberty may include extracting forced labour or otherwise reducing a person to servile status.1382 Further, ownership, as indicated by possession, does not require confĳinement to a particular place but may include situations in which those who are captured remain in the household chores: Kunarac Trial Judgement paras. 542, 543, 728 et seq. The defĳinition of the crime of enslavement was upheld on appeal, Kunarac Appeal Judgement paras. 106–124. 1379 Rome Statute, Article 7(1)(g)-2 (crime against humanity). The Rome Statute also recognises sexual slavery as a war crime in Article 8(2)(b)(xxii)-2 (other serious violation of the laws or customs of an international armed conflict) and Article 8(2)(e)(vi)-2 (serious violation of Common Article 3). 1380 See Rome Statute Elements of Crimes, Article 7(1)(g)-2. 1381 Special Rapporteur on Contemporary Forms of Slavery, Update to the Final Report on Systematic Rape, Sexual Slavery and Slavery-like Practices during Armed Conflict, E/CN.4/ Sub.2/2000/21, 6 June 2000, para. 50. 1382 With reference to the Rome Statute Article 8(2)(b)(xxii) - which lists sexual slavery as a crime against humanity - delegates to the Working Group on the Elements of Crime took the view that the word “similar” in the fĳirst element (i) of the crime should not be interpreted as referring only to com- mercial character of the examples of selling, purchasing, or bartering. These delegates insisted that Footnote 18 be appended to the Article, which states “[i]t is understood that such a deprivation of liberty may, in some circumstances, include extracting forced labour or otherwise reducing a person to servile status as defĳined in the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery of 1956. It is also understood that the conduct described in this element includes trafffĳicking in persons, in particular women and children,” Rome Statute of the International Criminal Court, Elements of Crimes, Art. 8(2)(b)(xxii), fn. 18.; Commentary documented by Eve La Haye, Article 8(2)(b)(xxii) – 2 – Sexual Slavery, in Roy S. Lee, Ed., The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence (2001: Transnational Publishers, Ardsley) at p. 191. judgments 1401 control of their captors because they have no where else to go and fear for their lives.1383 The consent or free will of the victim is absent under conditions of enslavement.1384 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 fĳinds 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,1385 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.1386 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.1387 Similarly, the Trial Chamber is satisfĳied 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

1383 This distinction was also insisted upon by some delegations to the Rome Statute Working Group on Elements of Crimes to ensure that the provision did not exclude from prohibition situations in which sexually abused women were not locked in a particular place but were nevertheless “deprived of their liberty” because they have no where else to go and fear for their lives, Commentary documented by Eve La Haye, Article 8(2)(b)(xxii) – 2 – Sexual Slavery, in Roy S. Lee, Ed., The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence (2001: Transnational Publishers, Ardsley) pp. 191–192. 1384 Kunarac Trial Judgement, para. 542; Kunarac Appeal Judgement, paras. 129–131; Special Rapporteur on Contemporary Forms of Slavery, Update to the Final Report on Systematic Rape, Sexual Slavery and Slavery-like Practices during Armed Conflict E/CN.4/Sub.2/2000/21, 6 June 2000, para. 51. 1385 Factual Findings, Sexual Slavery, infra. 1386 Factual Findings, Sexual Slavery, infra. 1387 Exhibit P-32, Mrs. Zainab Bangura, “Expert Report on Phenomenon of ‘Forced Marriages’ in the Context of the Conflict in Sierra Leone and, more specifĳically, in the Context of the Trials against the RUF and AFRC Accused Only,” p. 14. 1402 part iv 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.1388 712. None of the witnesses gave evidence that they considered themselves to be in fact “married.” (One witness testifĳied that she had been “married” to her rebel “husband” in a ceremony,1389 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.”1390 They were held against their will and a number tried to escape.1391 There was no evidence that any of the women taken as “wives” stayed on with their rebel “husbands” following the end of hostilities.1392 713. In light of the foregoing, the Trial Chamber fĳinds, by a majority,1393 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 fĳindings 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 fĳinds that alleged offfences of a residual, non- sexual nature do not belong under the part of the Indictment entitled “Counts 6–9: Sexual Violence.” The Trial Chamber fĳinds by a majority1394 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.1395 (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 dignity1396 by prohibiting “[o]utrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of

1388 Exhibit P-32, “Expert Report of on phenomenon of ‘forced marriages’ in the context of the conflict in Sierra Leone and, more specifĳically, in the context of the trials against the RUF and AFRC Accused only,” pp. 13, 15. 1389 TF1-085, Transcript 7 April 2005, p. 37. 1390 Factual Findings, Sexual Violence, infra. 1391 See for example, Witness TF1-085, Transcript 7 April 2005, pp. 43–44, 121; Witness TF1-334, Transcript 20 May 2005, pp. 4–5; TF1-282, Transcript 13 April 2005, pp. 15–18; Transcript 14 April 2005, p. 39. 1392 Factual Findings, Sexual Violence, infra. 1393 Justice Doherty dissenting. 1394 Justice Doherty dissenting. 1395 See Rule 98 Decision, Separate Concurring Opinion of Hon. Justice Julia Sebutinde, paras. 10–14. 1396 See Prosecutor v. Aleksovski, Case No. IT-95-14/1-T, Judgement, 25 June 1999, at para. 54. judgments 1403 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”;1397 or to safeguard “the principles of humane treatment.”1398 The said crime is formulated in a manner which ensures broad and flexible interpretation. The list of offfences 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.”1399 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.1400 The crime of outrages upon personal dignity was fĳirst articulated in the 1949 Geneva Conventions and is fĳirmly 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 efffect.1401 (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).1402

1397 Aleksovski Appeal Judgement, para. 56. 1398 Patricia Viseur Sellers in: O. Trifffterer, ed., Commentary on the Rome Statute of the International Criminal Court, Observers’ Notes, Article by Article, (Baden-Baden: Nomos Verl.-Ges, 1999),(Commentary on Rome Statute), at margin No. 195. The ICRC’s Commentary on Geneva Convention IV also notes: “What [common] Article 3 guarantees such persons is humane treatment.” 1399 Commentary on Rome Statute, note 2 at margin No. 190. 1400 Convention (IV) Relative to the Protection of Civilian Persons in Time of War, Geneva, 12 August 1949, Commentary, Common Article 3, online: International Committee of the Red Cross. 1401 Rule 98 Decision, para. 115; see also Rome Statute, Elements of Crimes, Article 8(2)(b)(xxi). 1402 Indictment, paras. 51–57. 1404 part iv

718. Rape (Count 6) is an offfence which is specifĳied 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.”1403 719. With reference to the elements of sexual slavery set out in the discussion of Count 8 above, the Trial Chamber is similarly satisfĳied 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.1404 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.”1405 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.1406 721. The Indictment fails to provide any particulars as to the specifĳic 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.1407 In the present case, given the broad scope of the offfence of ‘any other form of sexual violence,’ it was essential for the Indictment to clearly identify the specifĳic offfence or offfences which the Accused are required to answer. The Trial Chamber fĳinds that the Indictment is defective in this respect because it fails to plead material facts with sufffĳicient specifĳicity. 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.

1403 Akayesu Trial Judgement, para. 597. 1404 Kvočka Trial Judgement, para. 173. 1405 Kvočka Trial Judgement, para. 180. 1406 Furundžija Trial Judgement, para. 186; Akayesu Trial Judgement, para. 688. 1407 See Kamuhanda Appeal Judgement, para. 17; Kupreškić Appeal Judgement, para. 88; see also Alleged Defects in the Form of the Indictment. judgments 1405

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.1408 (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 specifĳic 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 disfĳiguring the victim, or by permanently disabling or removing an organ or appendage of the victim; 3. The perpetrator’s conduct was neither justifĳied by the medical, dental or hospital treatment of the victim, nor carried out in the victim’s interest.1409 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.1410 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.1411 With regard to particular acts of physical violence, the seriousness of the act or omission and its degree of gravity must be

1408 Indictment, paras. 58–64. 1409 Rule 98 Decision, para. 172; see also Elements of Crime for art. 8(2)(c)(i)-2 of the Rome Statute of the International Criminal Court, 17 July 1998, UN Doc. A/CONF. 183/9 (entered into force 1 July 2002), arts. 7(1)(f), 8(2)(c)(i)-2. 1410 Prosecution Final Brief, para. 1020. 1411 See para. 698, supra. 1406 part iv 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,1412 the Trial Chamber will assess the seriousness of a particular conduct and its sufffĳicient 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 efffects on the victim.1413

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.1414 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,1415 which found that, prior to November 1996, the crime had crystallised as customary law, regardless of whether committed in internal or international armed conflict,1416 and held that

1412 Indictment, para. 60. 1413 Čelebići Trial Judgement, para. 536; Kunarac, Trial Judgement, para. 501; see Br?anin Trial Judgement, para. 1005: “The Trial Chamber fĳinds that ‘physical violence’ may comprise treatment that does not amount to torture as defĳined above,” and para. 481. 1414 Indictment, para. 65. 1415 Prosecutor v. Norman, Case No. SCSL-2004-14-AR72(E), Decision on Preliminary Motion Based on Lack of Jurisdiction (Child Recruitment), 31 May 2004 (“Appeal Decision on Child Recruitment”). 1416 Appeal Decision on Child Recruitment, paras. 10–24, referring to the 187 States parties to the 1949 Geneva Conventions, including Sierra Leone, the 137 States parties to Additional Protocol II, including Sierra Leone, the fact that all but six States had ratifĳied the Conventions on the Rights of the Child, including Sierra Leone, the adoption of the African Charter on the Rights and Welfare of the Child, and the widespread prohibition of recruitment or voluntary enlistment of children under the age of 15 in domestic legislations; see also Convention on the Rights of the Child, 20 November 1989, 1577 U.N.T.S.3; African Charter on the Rights and Welfare of the Child, OAU Doc. CAB/ LEG/24.9/49 (1990), adopted on 11 July 1990, entered into force on 29 November 1999. judgments 1407

[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 specifĳicity are both upheld.1417 (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.1418 (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.”1419 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.1420 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

1417 Appeal Decision on Child Recruitment, para. 53; but see Appeal Decision on Child Recruitment, Dissenting Opinion of Justice Robertson, para. 45, fĳinding “that it would breach the nullen crimen rule to impute the necessary intention to create an international law crime of child enlistment to states until 122 of them signed the Rome Treaty […]; para. 47, holding “that the crime of non-forcible enlistment did not enter international criminal law until the Rome Treaty in July 1998. That it exists for all present and future conflicts is declared for the fĳirst time by the judgements in this Court today.” 1418 See Rome Statute, Elements of Crimes, Article 8(2)(b)(xxvi); see also Rule 98 Decision, para. 194. 1419 Kanu Final Brief, para. 75, referring to exhibit D-37, Expert report on Child Soldiers by Mr. Gbla, paras. 9–11, 39. 1420 Kanu Final Brief, paras. 76, 124, referring to exhibit D-37, Expert report on Child Soldiers by Mr. Gbla, paras. 33–39. 1408 part iv not, it is submitted, on its face manifestly illegal, no conviction should be entered on Count 12 on the grounds of mistake of law.1421 (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 confĳirmed the customary status of the requirement that the victim must be below the age of 15.1422 Moreover, the Trial Chamber notes that the domestic law of Sierra Leone defĳines a ‘child’ as a person under 16 years of age.1423 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.1424 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 satisfĳied 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.1425 While the traditional meaning of the term refers to government policies requiring citizens to serve in their armed forces,1426 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 efffect, it is justifĳied not to restrict ‘conscription’ to the prerogative of States and their legitimate Govern- ments, as international humanitarian law is not grounded on formalistic postula- tions.1427 Rather, the Trial Chamber adopts an interpretation of ‘conscription’

1421 Kanu Final Brief, paras. 124–132. 1422 Appeals Chamber Decision on Child Recruitment, para. 53. 1423 Prevention of Cruelty to Children Act (1926), which states in Article 1.2. that “For the purposes of this Ordinance, unless the context otherwise requires, ‘child’ means a person under the age of sixteen years; […].” 1424 See Orić Trial Judgement, para. 563. 1425 Dissenting Opinion of Justice Robertson to Appeals Chamber Decision on Child Recruitment, para. 5. 1426 See, e.g., Australia: Defence Act, No 20 of 1903 (as amended by Defence Legislation Amendment Act 1992, No. 91 of 1992), Art. 59(c); Germany: Wehrpflichtgesetz, BGBl. I 1956, 651, § 1. 1427 See Tadić Appeal Judgement, para. 96. judgments 1409 which encompasses acts of coercion, such as abductions1428 and forced recruitment,1429 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.1430 Enlistment is a voluntary act, and the child’s consent is therefore not a valid defence.1431 736. ‘Using’ children to “participate actively in the hostilities” encompasses putting their lives directly at risk in combat.1432 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.”1433 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 efffect to, or helps maintain, operations in a conflict constitutes active participation. Hence carrying loads for the fĳighting faction, fĳinding and/or acquiring food, ammunition or equipment, acting as decoys, carrying messages, making trails or fĳinding routes, manning checkpoints or acting as human shields are some examples of active participation as much as actual fĳighting and combat. 738. The elements of ‘armed forces or groups’ entail 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.

1428 See Secretary-General’s Report on the Establishment of the Special Court, UN Doc. S/2000/915, para. 18: “While the defĳinition of the crime as ‘conscripting’ or ‘enlisting’ connotes an administrative act of putting one’s name on a list and formal entry into the armed forces, the elements of the crime under the proposed Statute of the Special Court are: (a) abduction, which in the case of children of Sierra Leone was the original crime and is in itself a crime under common article 3 of the Geneva Conventions; […].” This proposal was however rejected by the Security Counsel. 1429 See Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on the confĳirma- tion of charges, 29 January 2007 (“Dyilo Confĳirmation Decision”), para. 246. 1430 Dissenting Opinion of Justice Robertson to Appeals Chamber Decision on Child Recruitment, para. 5; see also French Code of National Service, Art. L111-3; Military Selective Act (US), 10 USC ¶ 513. 1431 Dyilo Confĳirmation Decision, para. 247. 1432 Dissenting Opinion of Justice Robertson to Appeals Chamber Decision on Child Recruitment, para. 5. 1433 Report of the Preparatory Committee on the Establishment of an International Criminal Court, A/CONF. 183/2/Add. 1, 14 April 1998, p. 21 at footnote 12. 1410 part iv

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.1434 The Slavery Convention of 1926 defĳined 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.”1435 Being an indication of ‘enslavement,’1436 forced

1434 Art. 4(2)(f) of Additional Protocol II prohibits ‘slavery’ and ‘slave trade’ in all their forms. Both ‘enslavement’ and ‘slavery’ are constituted of the same elements: Krnojelac Trial Judgement, para. 356. 1435 Slavery Convention, 25 September 1926 (entry into force on 9 March 1927), Article 1(1), Article 2(b): “The High Contracting Parties undertake […], so far as they have not already taken the necessary steps to bring about, progressively and as soon as possible, the complete abolition of slavery in all its forms”; see also Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, 7 September 1956, entered into force on 30 April 1957, Article 6(1): “The act of enslaving another person or inducing another person to give himself or a person dependent upon him into slavery, or of attempting these acts, or being accessory thereto, or being a party to a conspiracy to accomplish any such acts, shall be a criminal offfence under the laws of the State parties to this convention and persons convicted thereof shall be liable to punishment”; Universal Declaration of Human Rights, adopted and proclaimed by General Assembly Resolution 217 (A)(III) of 10 December 1948, Article 4: “No one shall be held in slavery or servitude; servitude and the slave trade shall be prohibited in all their forms”; International Covenant on Civil and Political Rights, adopted and opened for signature, ratifĳication and accession by General Assembly Resolution 2200A(XXI) of 16 December 1966, entered into force on 23 March 1976, Article 8(1): “No one shall be held in slavery; slavery and the slave trade in all their forms shall be prohibited. (2) No one shall be held in servitude. (3) No one shall be required to perform forced or compulsory or forced labour”; African Charter on Human and Peoples Rights, adopted on 27 June 1981, entered into force on 21 October 1986, Article 5: “Every individual shall have the right to the respect of the dignity inherent in a human being and to the recognition of his legal status. All forms of exploitation and degradation of man particularly […] slavery, slave trade […] shall be prohibited.” 1436 Krnojelac Trial Judgement, para. 359. judgments 1411 labour has been defĳined 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 offfered himself voluntarily.”1437 743. ‘Enslavement’ was listed both as a war crime and a crime against humanity in the Nuremberg Charter,1438 with convictions entered on this count in a number of cases.1439 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.1440 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, confĳirms 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.1441 (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”1442 (actus reus), while the mens rea of the violation consists in the intentional exercise of such powers.”1443

1437 Convention Concerning Forced or Compulsory Labour, International Labour Organisation (“ILO”), No. 29, 39 U.N.T.S. 55 (entry into force 1 May 1932), Article 2(1): “For the purposes of this convention, the term ‘forced or compulsory labour’ shall mean all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offfered himself voluntarily”; see also Convention Concerning the Abolition of Forced Labour, adopted on 25 June 1957 by the General Conference of the ILO at its fortieth session, (entry into force 17 January 1959). 1438 Nuremberg Charter, Article 6, providing, inter alia, that “[t]he following acts, or any of them, are crimes coming within the jurisdiction of the Tribunal for which there shall be individual responsibility: (b) War Crimes: namely, violations of the laws or customs of war. Such violations shall include, but not be limited to, […] deportation to slave labour: (c) Crimes against Humanity: namely […] enslavement[…]” 1439 United States v. Erhard Milch (Case II), Judgement of 31 July 1948, reprinted in Trials of War Criminals Before the Nuremberg Military Tribunals Under Control Council Law No. 10, Vol. II (1997), p. 773; United States v. Oswald Pohl and Others (Case IV), Judgement of 3 November 1947, reprinted in Trials of War Criminals Before the Nuremberg Military Tribunals Under Control Council Law No. 10, Vol. V (1997), pp. 958–970. See also M. Lippman, War Crimes Trials of German Industrialists: the “other Schindlers,” 9 Temple International and Comparative Law Journal, p. 180. 1440 Draft Code of Crimes Against the Peace and Security of Mankind, Yearbook of the ILC (1954), Vol. II, Documents of the sixth session including the report of the Commission to the General Assembly, p. 150; Report of the ILC on the work of its 43rd session, 29 April-19 July 1991, GA, Supplement No. 10 (A/46/10), p. 265; Report of the ILC on the work of its 48th session, 6 May-26 July 1996, GA, Supplement No. 10 (A/51/10), p. 93. 1441 Krnojelac Trial Judgement, para. 353. 1442 Kunarac Judgement, para. 540. 1443 Kunarac Judgement, para. 540. 1412 part iv

745. The Kunarac Trial Chamber held that “[u]nder this defĳinition, 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 trafffĳicking.”1444 746. The ICTY Appeals Chamber further clarifĳied this defĳinition by fĳinding that “lack of consent” is not an element of the crime of enslavement, although it may be a signifĳicant issue in terms of evidence of the status of the alleged victim.1445 747. The defĳinition set forth in Kunarac was later reiterated in Krnojelac, 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.”1446 748. In Krnojelac, the allegations concerned enslavement for the purpose of forced labour.1447 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.”1448 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.1449

1444 Kunarac Judgement, para. 542. 1445 Kunarac Appeal Judgement, para. 120. 1446 Krnojelac Trial Judgement, para. 350. 1447 Krnojelac Trial Judgement, para. 357. 1448 Krnojelac Trial Judgement, para. 358. 1449 See Rule 98 Decision, paras. 212–215; see also Krnojelac Trial Judgement, para. 350; Report of the Preparatory Commission for the International Criminal Court, Finalised Draft Text for the judgments 1413

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.1450 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,’1451 ‘plunder’1452 and ‘looting.’1453 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.1454 Pillage has been adjudicated in a number of cases before the ICTY.1455 (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

Elements of the Crimes, New-York, 13–31 March 2000/12–30 June 2000 (“ICC Elements of the Crimes”), p. 10, noting that “[i]t is understood that such deprivation of liberty may, in some circumstances, include exacting forced labour or otherwise reducing a person to a servile status as defĳined in the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery of 1956.” 1450 Indictment, paras. 74–79. 1451 1907 Hague Regulations, Article 47: “Pillage is formally prohibited”; Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 12 August 1949, 75 UNTS 2 (“Geneva Convention IV”), Article 33(2): “Pillage is prohibited”; Additional Protocol II, Article 4 prohibits pillage of “all persons who do not take a direct part or who have ceased to take part in hostilities whether or not their liberty has been restricted”; Statute of the ICTR, Article 4(f). 1452 Nuremberg Charter, Article 6: “The following acts, or any of them, are crimes coming within the jurisdiction of the Tribunal for which there shall be individual responsibility: b) War Crimes, namely violations of the laws and customs of war. Such violations shall include, but not be limited to, […] plunder of public or private property”; Allied Control Council Law No. 10, 20 December 1945, reprinted in 1 CCL No. 10 Trials, at xvi (“Control Council Law No. 10”), Article 2: “Each of these is recognised as a crime, (1)(b) War Crimes. Atrocities or offfences against persons or property, constituting violations of the laws or customs of war, including but not limited to […] plunder of public or private property.” 1453 Article 103 of the United States Uniform Code for Military Justice provides for punishment of persons engaged in “looting or pillaging.’ 1454 Indictment in the case United States et al. v. Hermann Göring et al., International Military Tribunal (6 October 1945), in 1 Trial of the Major War Criminals Before the International Military Tribunal, Nuremberg, 14 November 1945 – 1 October 1946, Nuremberg 1947, pp. 27, 55–60, 65; indictment in the case United States v. Ulrich Greifelt et al. (RuSHA case), American Military Tribunal (July 1947), in 4 TWC 608, 610, 616, 618; indictment in the case United States v. Oswald Pohl et al. (Pohl case), American Military Tribunal (Indictment, 13 January 1947), in 5 TWC 200, 204, 207. 1455 Čelebići Trial Judgement, para. 591; Kordić Trial Judgement, para. 352; Prosecutor v. Mladen Naletilić aka “Tuta” and Vinko Martinović aka “Stela,” Case No. IT-98-34-T, Judgement, 31 March 2003 (“Naletilić Trial Judgement”), para. 612. 1414 part iv

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.1456 753. That defĳinition 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 justifĳied by military necessity might fall within the defĳinition. Nevertheless, the defĳinition 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.’ ”1457 754. Inclusion of the element of “private or personal use” in the defĳinition 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 concludes that the crime of pillage within the meaning of Article 3(f) of the Statute is comprised of the following specifĳic 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.’ ”1458 All three Accused contend that ‘burning’ does not fall under the defĳinition of ‘pillage.’1459

1456 See Norman Judgement of Acquittal, para. 102. 1457 See Norman Judgement of Acquittal, para. 102; and Čelebići Trial Judgement, para. 590. 1458 Prosecution Final Brief, para. 1037. 1459 Brima Final Brief, para. 319; Kamara Final Brief, para. 332, Kanu Final Brief, paras. 98–104. judgments 1415

(c) Findings 757. In its Rule 98 Decision, the Trial Chamber deferred a fĳinal decision on this issue until the end of the trial.1460 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.1461 Second, the jurisprudence is unambiguous in requiring that the property be appropriated,1462 an element which is not satisfĳied in the event that property is burned and destroyed. The Rome Statute also makes a distinction between appropriation and destruction of property.1463 758. Moreover, the destruction of civilian property may be brought and adjudged under a number of other provisions,1464 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 diffferent modes of liability. These are:

1460 Rule 98 Decision, paras. 262–268. 1461 Canada, Law of Armed Conflict Manual, Glossary, p. GL-15, pp. 5–6, para. 50, stating that “pillage, the violent acquisition of property for private purposes, is prohibited. Pillage is theft.”; France, Law of Armed Conflict Manual, 2001, pp. 36, 85, stating that “pillage constitutes an act of spoliation by which one or several military personnel appropriate objects for a personal or private use, without the consent of the owners of that object”; Netherlands, Military Manual (1993), p. IV-5: “Pillage is the taking of goods belongings to civilians during an armed conflict It is a form of theft […]”; Socialist Federal Republic of Yugoslavia, Military Manual (1988), p. 92: “The manual considers unlawful appropriation of private property as pillage […]; Georgia, Criminal Code, 1999, Article 413(a), stating that “[p]illage, i.e seizure in a combat situation of the private property of civilians left in the region of hostilities, in an internal or international armed conflict is a crime […]”; Algeria, Code of Military Justice, 1971, Article 286, punishing pillage and damage to commodities, goods or belongings committed by soldiers as a group; see also Burkina Faso, Code of Military Justice, 1994, Article 193; Cameroon, Code of Military Justice, 1928, Article 221; ICRC Archive Document, Commentary, p. 114, fn. 809, reporting “looting by the armed forces of a State in government controlled areas” and that “pillage has become systematic and much more vicious. What is not pillaged is destroyed or burnt […].” 1462 Naletilić Trial Judgement, para. 612; Kordić Trial Judgement, para. 352; Jelisić Trial Judgement, para. 48. 1463 See Art. 8(2)(a)(iv) of the Rome Statute refers to “[e]xtensive destruction and appropriation of property”; Art. 8(2)(b)(xiii) refers to “[d]estroying or seizing the enemy’s property.” 1464 Rule 98 Decision, paras. 263–264, referring to Article 4(a) of the Statute (attacks against the civilian population), which is not charged in the instant case, and to the non-exhaustive nature of Common Article 3 (see Tadić Jurisdiction Decision, paras. 87, 127), and by extension, Article 3 of the Statute. 1416 part iv

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; 2. 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.1465

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 satisfĳied, may result in an accused incurring individual criminal responsibility for one or more of the crimes provided for in the Statute.1466 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.1467 The Trial Chamber in the ICTY case of Kordić1468 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 fĳirmly 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 sufffĳiciently 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. Article 7(1) may thus be regarded as intending to ensure that all those who either

1465 Indictment, paras. 35–36. 1466 Vasiljević Appeal Judgement, para. 95. 1467 Kvočka Appeal Judgement, para. 79; Vasiljević Appeal Judgement, para. 95. 1468 Kordić Trial Judgement, para. 373. judgments 1417

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 offfender himself.”1469 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.1470 Committing also covers situations where the accused engenders “a culpable omission in violation of a rule of criminal law.”1471 There can be several perpetrators in relation to the same crime where the conduct of each one of them fulfĳils the requisite elements of the defĳinition of the substantive offfence.1472 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.1473 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.1474 (b) Planning 765. “Planning” implies that one or several persons contemplate designing the commission of a crime at both the preparatory and execution phases.1475 Proof of the existence of a plan may be provided by circumstantial evidence.1476 Responsibility is incurred when the level of the accused’s participation is substantial, even when the crime is actually committed by another person.1477 766. The actus reus requires that the accused, alone or together with others, designated the criminal conduct constituting the crimes charged. It is sufffĳicient to demonstrate that the planning was a factor substantially contributing to such

1469 Tadić Appeal Judgement, para. 188; Krnojelac Trial Judgement, para. 73. 1470 Galić Trial Judgement, para. 168; Kvočka Trial Judgement, para. 250. 1471 Prosecution Final Brief, para. 427; Orić Trial Judgement, para. 302; Kunarac Trial Judgement, para. 390; Krstić Trial Judgement, para. 601; Vasiljević Trial Judgement, para. 62. 1472 Kunarac Trial Judgement, para. 390. 1473 Kvočka Trial Judgement, para. 251; Orić Trial Judgement, para. 279; Galić Trial Judgement, para. 172. 1474 Brima Final Brief, para. 89; Kamara Final Brief, para. 29. 1475 Akayesu Trial Judgement, para. 477; Brđanin Trial Judgement, para. 268; Stakić Trial Judgement, para. 443; Krstić Trial Judgement, para. 601. 1476 Blaškić Trial Judgement, para. 279. 1477 Bagilishema Trial Judgement, para. 30. 1418 part iv criminal conduct.1478 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.1479 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,1480 even though his or her involvement in the planning may be considered an aggravating factor.1481 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 sufffĳicient knowledge thereof in advance.”1482 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 sufffĳicient link between the planning of a crime both at the preparatory and the execution phases. In the opinion of the Trial Chamber, it is sufffĳicient to demonstrate that the planning was a factor substantially contributing to such criminal conduct.1483 (c) Instigating 769. “Instigating” means prompting another to commit an offfence.1484 This requires more than merely facilitating the commission of the principal offfence, which may sufffĳice 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.”1485 Both acts and omissions may constitute instigating, which covers express as well as implied conduct.1486 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.1487

1478 Kordić Appeal Judgement, para. 26. 1479 Kordić Appeal Judgement, paras. 29, 31. 1480 Rule 98 Decision, para. 285, referring to Kordić Trial Judgement, para. 386; see also Brđanin Trial Judgement, para. 268. 1481 Prosecution Final Brief, para. 416; Stakić Trial Judgement, para. 443. 1482 Brima Final Brief, para. 80; Kamara Final Brief, para. 17, referring to Brđanin Trial Judgement, para. 357. 1483 Rule 98 Decision, paras. 284, 290–291. 1484 Akayesu Trial Chamber Judgement, para. 482. 1485 Orić Trial Judgement, paras. 270–271; Kordić Appeal Judgement, para. 27; Kajelijeli Trial Judgement, para. 762. 1486 Brđanin Trial Judgement, para. 269. 1487 Brđanin Trial Judgement, para. 269; Galić Trial Judgement, para. 168; Orić Trial Judgement, para. 274–276; Akayesu Trial Judgement, para. 482. judgments 1419

770. The actus reus requires that the accused prompted another person to commit the offfence1488 and that the instigation was a factor substantially contributing to the conduct of the other person(s) committing the crime.1489 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.1490 771. If a principal perpetrator has defĳinitely decided to commit the crime, further encouragement or moral support may still qualify as aiding and abetting.1491 (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 offfence.1492 No formal superior- subordinate relationship between the accused and the perpetrator is necessary; it is sufffĳicient that the accused possessed the authority to order the commission of an offfence and that such authority can be reasonably inferred.1493 The order need not be given in writing or in any particular form,1494 nor does it have to be given directly to the perpetrator.1495 The existence of an order may be proven through circumstantial evidence.1496 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.1497 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.1498

1488 Kordić Appeals Judgement, para. 27. 1489 Kordić Appeals Judgement, para. 27. 1490 Kordić Appeals Judgement, paras. 29, 32. See also Orić Trial Judgement, para. 279. 1491 Orić Trial Judgement, para. 271. 1492 Rule 98 Decision, para. 295, referring to Krstić Trial Judgement, para. 601; Brđanin Trial Judgement, para. 270. 1493 Strugar Trial Judgement, para. 331; Kordić Appeal Judgement, para. 28; Brđanin Trial Judgement, para. 270; see also Akayesu Trial Judgement, para. 480. 1494 Blaškić Trial Judgement, para. 281. 1495 Brđanin Trial Judgement, para. 270; Blaškić Trial Judgement, para. 282, fn. 508, noting “the High Command Case in which the military tribunal considered that ‘to fĳind a fĳield commander criminally responsible for the transmittal of such an order, he must have passed the order to the chain of command and the order must be one that is criminal upon its face, or one which he is shown to have known was criminal’ ,” see USA v. Wilhelm von Leeb et al. in Trials of War Criminals Before the Nuremberg Military Tribunals Under Control Council Law No. 10 (“High Command Case”), Vol. XI, p. 511. 1496 Blaškić Trial Judgement, para. 281; Akayesu Trial Judgement, para. 480; see also Galić Trial Judgement, para. 171, providing factors from which the existence of an order may be inferred, including the number of illegal acts, the amount, identity and type of troops involved, the efffective command and control exercised over these troops, the widespread occurrence of the illegal acts, the location of the superior at the time and his or her knowledge that criminal acts were committed. 1497 Kordić Appeal Judgement, paras. 29, 30; Blaškić Appeal Judgement, para. 42. 1498 Vasiljević Appeal Judgement, para. 120; see also Strugar Trial Judgement, para. 333. 1420 part iv

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.1499 (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 efffect on the perpetration of a crime.1500 “Aiding and abetting” may be constituted by contribution to the planning, preparation or execution of a fĳinally completed crime.1501 Such contribution may be provided directly or through an intermediary1502 and irrespective of whether the participant was present or removed both in time and place from the actual commission of the crime.1503 Mere presence at the scene of crime without preventing its occurrence does not per se constitute aiding and abetting.1504 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.1505 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.1506 777. The Prosecution contends that a “persistent failure to prevent or punish crimes by subordinates over time may also constitute aiding or abetting.”1507 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 fulfĳilled.1508

1499 Prosecution Final Brief, para. 423, referring to Kupreškić Trial Judgement, para. 862. 1500 Blaškić Appeal Judgement, para. 46. 1501 Blaškić Appeal Judgement, paras. 45, 48; Prosecutor v. Jean de Dieu Kamuhanda, Case No. ICTR-99-54A-T, Judgement, 23 January 2003 (“Kamuhanda Trial Judgement”), para. 597; Orić Trial Judgement, para. 282. 1502 Limaj Trial Judgement, para. 516; Orić Trial Judgement, para. 282. 1503 Orić Trial Judgement, para. 282; Blaškić Appeal Judgement, para. 48. 1504 Orić Trial Judgement, para. 283. 1505 Kayishema Appeal Judgement, para. 201; Orić Trial Judgement, para. 283; see also Aleksovški Trial Judgement, para. 65; Kajelijeli Trial Judgement, para. 769; see also Brima Final Brief, para. 92; Kamara Final Brief, para. 31. 1506 Blaškić Appeal Judgement, para. 50. 1507 Prosecution Final Brief, para. 431. 1508 On the relationship between Article 6(1) and 6(3), see para. 800 infra. judgments 1421

(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 efffective 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.1509 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.1510 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.1511

1509 Indictment, para. 36. 1510 Rule 98 Decision, para. 328, referring to Čelebići Trial Judgement, para. 346. 1511 Čelebići Trial Judgement, para. 333, stating “[t]hat military commanders and other persons occupying positions of superior authority may be held criminally responsible for the unlawful conduct of their subordinates is a well-established norm of customary international law.” See also Prosecutor v. Enver Hadžihasanović, Mehmed Alagić and Amir Kubura, Case No. IT-01-47-AR72, Decision on Interlocutory Appeal Challenging Jurisdiction in Relation to Command Responsibility, 16 July 2003 (“Hadžihasanović Appeal Decision on Jurisdiction”), para. 31, holding that “[i]n the opinion of the Appeals Chamber, the Trial Chamber was correct in holding, after a thorough examination of the matter, that command responsibility was at all times material to this case a part of 1422 part iv

The scope of Article 6(3) does not only include military commanders, but also political leaders and other civilian superiors in possession of authority.1512 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.1513 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 ‘der- eliction’ or ‘neglect of duty’ to prevent or punish the perpetrators of serious crimes.1514 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.1515 (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.”1516 It is immaterial whether the power of the superior over the subordinates is based on de jure or on de facto authority,1517 as long as the superior possessed the material ability to

customary international law in its application to war crimes committed in the course of an internal armed conflict.” 1512 Aleksovski Appeal Judgement, para. 76; Stakić Trial Judgement, para. 459; Orić Trial Judgement, para. 308; Bagilshema Appeal Judgement, para. 51; Kajelijeli Appeal Judgement, para. 85. 1513 Halilović Trial Judgement, para. 54. 1514 Halilović Trial Judgement, paras. 42–54; Prosecutor v. Enver Hadžihasanović and Amir Kubura, Case No. IT-01-47-T, Judgement, 15 March 2006 (“Hadžihasanović Trial Judgement”), para. 75; see Judge Shahabuddeen’s partly dissenting opinion in the Hadžihasanović Appeal Decision on Jurisdiction, stating that “[t]he position of the appellants seems to be influenced by their belief that Article 7(3) of the Statute has the efffect, as they say, of making the commander ‘guilty of an offfence committed by others even he neither possessed the applicable mens rea nor had any involvement whatsoever in the actus reus.’ No doubt, arguments can be made in support of that reading of the provision, but I prefer to interpret the provision as making the commander guilty for failing in his supervisory capacity to take the necessary corrective action after he knows or has reason to know that his subordinate was about to commit the act or had done so”; Orić Trial Judgement, para. 293. See also Brima Final Brief, para. 65. 1515 Orić Trial Judgement, paras. 301–302; see also Prosecutor v. Ljube Boškoski and Johan Tarčulovski, Case No. IT-04-82-PT, Decision on Prosecution’s Motion to Amend the Indictment, 26 May 2006, paras. 18 et seq. 1516 Čelebići Trial Judgement, para. 377. 1517 Orić Trial Judgement, para. 309, stating that “the broadening of this liability as described above is supported by the fact that the borderline between military and civil authority can be fluid. This is particularly the case with regard to many contemporary conflicts where there may be only de facto self-proclaimed governments and/or de facto armies and paramilitary groups subordinate thereto” (footnotes omitted); see also Kordić Trial Judgement, paras. 419, 422; Prosecutor v. Juvenal Kajelijeli, Case No. ICTR-98-44A-A, Judgement, 23 May 2005 (“Kajelijeli Appeal Judgement”), para. 87; Prosecutor v. Mladen Naletilić aka “Tuta” and Vinko Martinović aka “Štela,” Case No. IT-98-34-T, Judgement, 31 March 2003 (“Naletilić Trial Judgement”), para. 67. judgments 1423 prevent or punish the commission of the offfence.1518 This requirement has been widely referred to as the exercise of ‘efffective control.’1519 It may be presumed that the existence of de jure authority prima facie results in efffective control unless proof to the contrary is produced.1520 Substantial influence over the conduct of others falls short of efffective control.1521 785. Indications for efffective control include the formality of the procedure used for appointment of a superior,1522 the power of the superior to issue orders1523 or take disciplinary action,1524 the fact that subordinates show greater discipline in the superior’s presence,1525 the level of profĳile, manifested through public appearances and statements,1526 or the capacity to transmit reports to competent authorities for the taking of proper measures.1527 786. A superior may be held responsible for crimes committed by individuals temporarily subordinated to him, provided he exercises efffective control over them.1528 Further, superior responsibility is not excluded by the concurrent responsibility of other superiors in a chain of command.1529 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 efffect of the accused’s various functions.1530 787. However, in a conflict characterised by the participation of irregular armies or rebel groups, the traditional indicia of efffective 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 efffective control of its leaders. The less developed

1518 Čelebići Appeal Judgement, para. 256; see also Halilović Trial Judgement, para. 58. 1519 Čelebići Appeal Judgement, para. 256; Brđanin Trial Judgement, para. 276; Orić Trial Judgement, para. 311; Limaj Trial Judgement, para. 522. 1520 Čelebići Appeal Judgement, para. 197; Prosecution Final Brief, para. 437. 1521 Čelebići Appeal Judgement, para. 266; Blagojević Trial Judgement, para. 791; Ntagerura Trial Judgement, para. 628; Brima Final Brief, para. 100; Kamara Final Brief, para. 61. 1522 Halilović Trial Judgement, para. 58. 1523 Aleksovski Trial Judgement, paras. 101, 104; Blaškić Trial Judgement, para. 302; Kordić Trial Judgement, para. 421; see also Kajelijeli Trial Judgement, paras. 403–404. 1524 Blaškić Trial Judgement, para. 302; Hadžihasanović Trial Judgement, paras. 83 et seq. 1525 Čelebići Appeal Judgement, para. 206, endorsing the fĳindings of Čelebići Trial Judgement, para. 743. 1526 Kordić Trial Judgement, para. 424; Stakić Trial Judgement, para. 454. 1527 Aleksovski Trial Judgement, para. 78; Blaškić Trial Judgement, para. 302. 1528 Halilović Trial Judgement, paras. 61, 62; Kunarac Trial Judgement, para. 399; Orić Trial Judgement, para. 313; Aleksovski Trial Judgement, para. 106; Prosecution Final Brief, para. 438. 1529 Blaškić Trial Judgement, paras. 296, 302, 303; Krnojelac Trial Judgement, para. 93; Naletilić Trial Judgement, para. 69; Halilović Trial Judgement, para. 62; Prosecution Final Brief, paras. 439, 440. 1530 Brđanin Trial Judgement, para. 277, referencing Bagilishema Appeal Judgement, para. 51; Musema Trial Judgement, para. 135; Stakić Trial Judgement, para. 494. 1424 part iv 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 efffective control over their subordinates, include that the superior had fĳirst entitlement to the profĳits 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 efffective control remain central, although they may be more loosely defĳined. 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. Identifĳication of the principal perpetrator, particularly by name, is not required to establish a superior-subordinate relationship. It is sufffĳicient to identify the subordinates as belonging to a unit or group controlled by the superior.1531 (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 defĳined as the awareness that the relevant crimes were committed or about to be committed.1532 There is no presumption of such knowledge but, in the absence of direct evidence, it may be established through circumstantial evidence.1533 Factors indicative of actual knowledge include, fĳirst of all, an individual’s superior position and the superior’s geographical and temporal

1531 Blaškić Appeal Judgement, para. 217; referring to Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-PT, Decision on the Defence Preliminary Motion on the Form of the Indictment, 24 February 1999, para. 46; Orić Trial Judgement, para. 311; see also Prosecution Final Brief, para. 444. 1532 Kordić Trial Judgement, para. 427. 1533 Kordić Trial Judgement, para. 427; Čelebići Trial Judgement, para. 386; see also Brđanin Trial Judgement, para. 278; Hadžihasanović Trial Judgement, para. 94. judgments 1425 proximity to the crimes;1534 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 offfĳicers and stafff involved.1535 793. The evidence required to demonstrate actual knowledge may difffer 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.1536 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 specifĳic information was available which would have put the superior on notice of crimes committed or about to be committed.1537 The superior may not be held liable for failing to acquire such information in the fĳirst place.1538 However, it sufffĳices for the superior to be in possession of sufffĳicient information, even general in nature, written or oral, of the likelihood of illegal acts by subordinates.1539 In other words: failure to conclude, or conduct additional inquiry, in spite of alarming information amounts to imputed knowledge.1540 It is not necessary that the information would compel the conclusion of the existence of concrete crimes.1541 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.1542 Examples of such information include that a subordinate has a violent or unstable character and that a subordinate has been drinking prior to

1534 Aleksovski Trial Judgement, para. 80. 1535 Čelebići Trial Judgement, para. 386; Galić Trial Judgement, para. 174; Limaj Trial Judgement, para. 524; Bagilishema Trial Judgement, para. 968; see also Prosecution Final Brief, para. 446; Brima Final Brief, para. 107. 1536 Kordić Trial Judgement, para. 428; Galić Trial Judgement, para. 174; Orić Trial Judgement, para. 320; see also Prosecution Final Brief, para. 446. 1537 Blaškić Appeal Judgement, para. 62; Čelebići Appeal Judgement, para. 241. 1538 Blaškić Appeals Judgement, paras. 62–63, Čelebići Appeals Judgement, para. 226. 1539 Čelebići Appeal Judgement, para. 238; Čelebići Trial Judgement, para. 393; Kordić Trial Judgement, para. 437; Strugar Trial Judgement, para. 370. 1540 Čelebići Appeal Judgement, para. 232. 1541 Čelebići Trial Judgement, para. 393; Naletilić Trial Judgement, para. 74; Halilović Trial Judgement, para. 68; Orić Trial Judgement, para. 322. 1542 Brđanin Trial Judgement, para. 278, referring to Čelebići Appeal Judgement, paras. 223, 241; see also Strugar Trial Judgement, paras. 417–420, wherein it was considered insufffĳicient that the information known to the commander at the time of the offfence indicated that illegal acts might occur but rather required that the information indicates that such crimes would occur. 1426 part iv being sent on a mission.1543 Furthermore, reports addressed to the superior, the level of training and instruction of subordinate offfĳicers are factors to be taken into account when determining imputed knowledge.1544 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.”1545 Similarly, the Kamara and Kanu Defences oppose the application of strict liability.1546 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.”1547 796. It is clear from the case law referred to above that solely negligent ignorance is insufffĳicient 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.1548 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.1549 (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 sufffĳice if the superior did not become aware of these crimes until after they were committed.1550 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.1551 Generally, it can be said that the measures required of the superior are limited to those within his or her material ability under the

1543 Čelebići Appeal Judgement, para. 238. 1544 International Committee of the Red Cross (“ICRC”), Commentary to the Additional Protocols, para. 3545. 1545 Brima Final Brief, para. 65, 69–75. 1546 Kamara Final Brief, para. 69; Kanu Final Brief, para. 192. 1547 Kamara Final Brief, para. 69. 1548 Orić Trial Judgement, para. 324. 1549 Čelebići Trial Judgement, para. 387; Halilović Trial Judgement, para. 69. 1550 Orić Trial Judgement, para. 326; Limaj Trial Judgement, para. 527; Strugar Trial Judgement, para. 373. 1551 Blaškić Appeal Judgement, paras. 72, 77; Čelebići Trial Judgement, para. 394. judgments 1427 circumstances,1552 including those that may lie beyond his or her formal powers.1553 The kind and extent of measures to be taken depend on the degree of efffective control exercised by the superior at the relevant time, and on the severity and imminence of the crimes that are about to be committed.1554 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 efffective ability to prevent them from starting or continuing.1555 799. The duty to punish only arises once a crime under the Statute has been committed.1556 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.1557 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.1558

4. Relationship Between Article 6(1) and 6(3) of the Statute 800. Article 6(1) and 6(3) of the Statute denote diffferent 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.1559 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.1560

1552 Limaj Trial Judgement, para. 528; Prosecution Final Brief, paras. 453–454. 1553 Čelebići Trial Judgement, para. 395. 1554 Orić Trial Judgement, para. 329. 1555 Orić Trial Judgement, para. 329; Halilović Trial Judgement, para. 79. 1556 Blaškić Appeal Judgement, paras. 83, 85. 1557 Limaj Trial Judgement, para. 529; Orić Trial Judgement, para. 336; Strugar Trial Judgement, para. 376. 1558 Hadžihasanović Appeal Decision on Command Responsibility, paras. 45–46, but see Partial Dissenting Opinion of Judge Shahabuddeen, para. 43; Separate and Partially Dissenting Opinion of Judge David Hunt – Command Responsibility Appeal, para. 8; Orić Trial Judgement, para. 335. 1559 Blaškić Appeal Judgement, para. 91; Kordić Appeal Judgement, para. 34. 1560 Blaškić Appeal Judgement, para. 91; Aleksovski Appeal Judgement, para. 183; see also Orić Trial Judgement, paras. 339–343. 1428 part iv

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”1561 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 1999.1562 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 fĳinds 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 fĳindings have been made of murder as crimes against humanity, the Trial Chamber is further satisfĳied 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 fĳindings have been made of murder as a war crime, the Trial Chamber is further satisfĳied 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 fĳighters from opposing forces but hors de combat 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

1561 Indictment, para. 42. 1562 Indictment, paras. 43–50. judgments 1429 in Sierra Leone.1563 On the evidence adduced, the Trial Chamber is satisfĳied 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.”1564 807. No evidence of unlawful killings has been adduced with respect to the villages of Telu, Sembehun and Mamboma, as alleged in the Indictment.1565 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.1566 809. In arriving at the following factual fĳindings, 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 testifĳied that on or around 25 June 1997, two groups of more than 200 “soldiers” in military fatigue and red head bands attacked Tikonko.1567 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.1568 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 fĳindings only on the specifĳic incidents described by the witness below. 811. The witness testifĳied that he was at Tikonko Junction when the fĳirst group of soldiers came from the direction of Bo. The fĳirst 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.1569 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.1570

1563 Indictment, para. 10; Judicial Notice Decision, Fact D. 1564 Indictment, para. 43. 1565 Rule 98 Decision, paras. 89, 96. 1566 Brima Final Brief, para. 241. 1567 TF1-004, Transcript 23 June 2005, pp. 8, 35–36, 95–99. 1568 TF1-004, Transcript 23 June 2005, pp. 17–18, 21–22, 28–31, 82. 1569 TF1-004, Transcript 23 June 2005, pp. 5–6. 1570 TF1-004, Transcript 23 June 2005, p. 12. 1430 part iv

812. Witness TF1-004 testifĳied that a second group of soldiers followed the fĳirst and that they were “not selecting” meaning that they were killing people indiscriminately.1571 The witness observed the soldiers kill fĳive civilians and three Kamajors.1572 813. The burden of proof as to whether a combatant is hors de combat rests with the Prosecution.1573 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 fĳinds that fĳive 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.1574 The Witness walked into Tikonko proper, towards his house and saw more corpses, both women and men.1575 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.1576 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.1577 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.1578

1571 TF1-004, Transcript 23 June 2005, pp. 12–15. 1572 TF1-004, Transcript 23 June 2005, pp. 15–16. 1573 Blaškić Appeal Judgement, para. 111. 1574 TF1-004, Transcript 23 June 2005, p. 17. 1575 TF1-004, Transcript 23 June 2005, p. 18. 1576 TF1-004, Transcript 23 June 2005, pp. 18–20. 1577 TF1-004, Transcript 23 June 2005, p. 22. 1578 TF1-004, Transcript 23 June 2005, pp. 25–26. judgments 1431

817. The witness testifĳied that he did not know anyone in the village who owned guns that could have killed these individuals.1579 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.1580 819. The Trial Chamber is satisfĳied 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.1581 The Trial Chamber notes that while witness TF1-004 testifĳied that the “soldiers” attacking Tikonko identifĳied themselves as belonging to the AFRC faction,1582 he also stated that some of them were the “rebels” or RUF who had been stationed in Tikonko prior to the May 1997 coup.1583 In light of this evidence, the Trial Chamber fĳinds 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 testifĳied 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.1584 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.1585 822. Witness TF1-054 had come to Paramount Chief Demby’s house to warn him of the imminent arrival of the soldiers. He testifĳied 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

1579 TF1-004, Transcript 23 June 2005, p. 27. 1580 TF1-004, Transcript 23 June 2005, pp. 29–31. 1581 Brima Final Brief, para. 241; Kanu Final Brief, paras. 39, 369, referring to TF1-004, Transcript 23 June 2005, p. 99. 1582 TF1-004, Transcript 23 June 2005, pp. 96, 98. 1583 TF1-004, Transcript 23 June 2005, pp. 99, 100. 1584 TF1-053, Transcript 18 April 2005, pp. 103–106; TF1-053, Transcript 19 April 2005, pp. 18–20, 22, 34. 1585 TF1-053, Transcript 18 April 2005, pp. 105–107. 1432 part iv neck.1586 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 bath- tub. Witness TF1-054 did not give further information as to who killed Sumaila.1587 Given the strong circumstantial evidence, the Trial Chamber is satisfĳied 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.1588 In addition, Defence witness DBK-137 testifĳied that he heard that Kamajors were responsible for the death of Chief Demby.1589 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.1590 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.1591 The witness also saw a dead woman lying on Old Bo Road. The witness was told by mourn- ers that her name was Sukie and that she had been shot in the breast by a “soldier.”1592 Although witness TF1-053 did not mention the name Sukie in his pre- trial statement, the Trial Chamber fĳinds that this does not afffect the credibility of the witness as he explained that he only recalled her name when giving evidence at trial.1593 The Trial Chamber is satisfĳied 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 fĳive corpses, both male and female.1594 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 fĳindings on this incident.

1586 TF1-054, Transcript 19 April 2005, pp. 90–93. 1587 TF1-054, Transcript 19 April 2005, p. 94 See also exhibit P-66, “Sierra Leone Country Report on Human Rights Practices for 1997 Released by the Bureau of Democracy, Human Rights and Labour,” 30 January 1998, CMS p. 16528. 1588 Brima Final Brief, paras. 243, 245; Statement of Witness TF1-053 dated November 2002, CMS, p. 7285 [Confĳidential]. The witness stated that on 26 June 1997, he saw Kamajors entering Gerihun, but they passed and went to another place. Although he did not see them fĳiring gun shots, at 4.30 pm he heard two gunshots. 1589 DBK-137, Transcript 2 October 2006, p. 126. 1590 TF1-053, Transcript 19 April 2005, pp. 35–40, 42, 43; TF1-054, Transcript 19 April 2005, pp. 92–93. 1591 TF1-053, Transcript 18 April 2005, pp. 103, 107–108. 1592 TF1-053, Transcript 18 April 2005, p. 110; TF1-053, Transcript 19 April 2005, p. 55. 1593 TF1-053, Transcript 19 April 2005, pp. 61–63, 67–68. 1594 TF1 -053, Transcript 19 April 2005, p. 94. judgments 1433

(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 satisfĳied 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.”1595 828. In making the following factual fĳindings, 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.1596 These groups were present in Kenema until February 1998.1597 830. Not long after the takeover of Kenema Town, witness TF1-122 saw the house of one Pa Mansaray at Mambu Street on fĳire. According to the witness, the house had previously been occupied by Kamajors.1598 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.1599 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.1600 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

1595 Indictment, para. 44. 1596 TF1-122, Transcript 24 June 2005, p. 5; DAB-147, Transcript 3 October 2006, p. 27. 1597 TF1-122, Transcript 24 June 2005, p. 7. 1598 TF1-122, Transcript 24 June 2005, pp. 63–67. 1599 TF1-122, Transcript 24 June 2005, pp. 64, 68. 1600 TF1-122, Transcript 24 June 2005, pp. 26–28, 102–103. 1434 part iv 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.1601 The detainees were then transferred to the Kenema Police Station. BS Massaquoi and Brima Kpaka were subsequently released on bail.1602 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.1603 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.1604 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.1605 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.1606 Nonetheless, the Trial Chamber is satisfĳied on the evidence that unidentifĳied 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 unidentifĳied AFRC Lieutenant and others.1607 In the presence of police offfĳicers 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.1608 Their bodies were taken away on a military pickup van.1609 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

1601 TF1-122, Transcript 24 June 2005, pp. 35–37; DAB-147, Transcript 3 October 2006, pp. 30–35; Exhibit P-24, “CID Offfĳice Station Diary, opened on 13 January 1998 and closed on 7 February 1998,” p. 112. 1602 TF1-122, Transcript 24 June 2005, pp. 38–42. 1603 TF1-122, Transcript 24 June 2005, pp. 43–45; DAB-147, Transcript 3 October 2006, p. 33; Exhibit P-24, “CID Offfĳice Station Diary, opened on 13 January 1998 and closed on 7 February 1998,” p. 155. 1604 TF1-122, Transcript 24 June 2005, pp. 45–49. 1605 Brima Final Brief, para. 254; Kamara Final Brief, para. 130; DAB-063, Transcript 2 August 2006, p. 27; DAB-147, Transcript 3 October 2006, pp. 30–35. 1606 TF1-122, Transcript 24 June 2005, pp. 43–45; DAB-147, Transcript 3 October 2006, pp. 33–34. 1607 TF1-122, Transcript 24 June 2005, pp. 18–20. 1608 TF1-122, Transcript 24 June 2005, pp. 21–22. 1609 TF1-122, Transcript 24 June 2005, p. 23. judgments 1435

Cross (“ICRC”) in Kenema. Witness TF1-122 heard Sam Bockarie announce that he would take the investigation into his own hands.1610 As a result, Bockarie had two individuals arrested, one of whom was named Santos.1611 On the same evening, Witness TF1-122 found the dead bodies of these two persons at his doorstep.1612 Two days later, Sam Bockarie and “his boys” loaded the corpses onto a vehicle and drove offf.1613 Although Witness TF1-122 in a pre-trial statement stated that the burglary concerned the warehouse of ‘Médecins Sans Frontières,’ not of the ICRC,1614 the Trial Chamber is satisfĳied 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.1615 “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.1616 837. At an unspecifĳied 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 “fĳinished.” Bockarie’s “boys” then threw the farmer’s dead body into a hole.1617 838. The Kanu Defence submits that the evidence of witness TF1-122 is unreliable as regards the identifĳication of perpetrators of unlawful killings, and that “crimes committed in Kenema District during the AFRC regime fall clearly within the responsibility of the RUF.”1618 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.

1610 TF1-122, Transcript 24 June 2005, pp. 28–29, 115. 1611 TF1-122, Transcript 24 June 2005, p. 29. 1612 TF1-122, Transcript 24 June 2005, pp. 29–30. 1613 TF1-122, Transcript 24 June 2005, pp. 30, 31. 1614 TF1-122, Transcript 24 June 2005, p. 109. 1615 TF1-122, Transcript 24 June 2005, pp. 32–34. 1616 TF1-122, Transcript 24 June 2005, pp. 33–34. 1617 TF1-122, Transcript 24 June 2005, pp. 23–26, 101–102, 114–115. 1618 Kanu Final Brief, para. 371. 1436 part iv

(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 satisfĳied 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.”1619 842. No evidence has been led on unlawful killings with respect to the villages of Foindu, Willifeh and Biaya.1620 843. In reaching its factual fĳindings 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.1621 Defence witnesses testifĳied that the AFRC soldiers present in Kono were under the overall command of RUF.1622 (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.1623 Many civilians were killed following this order by AFRC and RUF troops in Koidu Town and surrounding villages.1624 This testimony is generally corroborated by witnesses TF1-206 and TF1-217, who heard about killings in Koidu Town.1625 846. Documentary evidence suggests that in mid-June 1998, more than 650 civilians were killed as a result of the fĳighting in the area around Koidu.1626 Again, the Trial Chamber is unable to attribute those killings to a specifĳic faction.

1619 Indictment, para. 45. 1620 Rule 98 Decision, paras. 89, 96. 1621 TF1-217, Transcript 17 October 2005, pp. 12–14; TF1-334, Transcript 18 May 2005, pp. 21–30. 1622 DAB-023, Transcript 3 August 2006, pp. 56, 63, 64; DBK-129, Transcript 9 October 2006, pp. 69–73; DAB-018, Transcript 7 September 2006, pp. 7–9. 1623 TF1-334, Transcript 20 May 2005, pp. 4–6. 1624 TF1-334, Transcript 20 May 2005, pp. 4–5, 7–8; Exhibit P-54, Amnesty International, “Sierra Leone, A Year of Atrocities Against Civilians,” 1998, CMS p. 15806. 1625 TF1-206, Transcript 28 June 2005, pp. 81–82; TF1-217, Transcript 17 October 2005, pp. 13–14. 1626 Exhibit P-54, Amnesty International Report on Sierra Leone, A Year of Atrocities Against Civilians,” 1998, CMS p. 15807. judgments 1437

847. The Trial Chamber therefore fĳinds 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 ‘Stafff Alhaji Bayo,’ 53 people were burnt alive by “juntas” in a big house near late Sahr Fania’s compound at Tombodu.1627 849. In mid-May 1998, ‘Savage’ locked 15 civilians into a house in Tombodu town which he then set ablaze. None of them escaped.1628 Another 47 people were beheaded by ‘Savage’ and ‘Guitar boy’ and then thrown into a diamond pit.1629 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.1630 Several other witnesses testifĳied that massive killings took place at the hands of AFRC/RUF fĳighters in Tombodu town between February and June 1998.1631 850. Witness TF1-033 testifĳied that in or about March 1998, the Accused Brima ordered ‘Savage’ to attack Tombodu, which resulted in the killing of “hundreds of civilians.”1632 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 fĳire.1633 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.1634 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.1635

1627 TF1-216, Transcript 27 June 2005, p. 92; TF1-217, Transcript 17 October 2005, pp. 17–21, 36–37, 46–47. 1628 TF1-334, Transcript 20 May 2005, p. 14; DAB-023, Transcript 3 August 2006, p. 75, 78. The witness stated that he did not report the atrocities to ‘Superman’ because ‘Savage’ was the commander at Tombodu. 1629 TF1-334, Transcript 20 May 2005, p. 15; DAB-023, Transcript 3 August 2006, p. 78. 1630 George Johnson, Transcript 15 September 2005, p. 45. 1631 George Johnson, Transcript 15 September 2005, p. 45; DAB-023, Transcript 3 August 2006, p. 75; DAB-098, Transcript 4 September 2005, p. 33. 1632 TF1-033, Transcript 11 July 2005, pp. 11–13. 1633 TF1-033, Transcript 11 July 2005, pp. 11–13. 1634 Kamara Final Brief, para. 144. 1635 Brima Final Brief, para. 256. 1438 part iv

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.’1636 Prosecution witness George Johnson testifĳied that the Accused Brima arrived after the commission of crimes in Tombodu.1637 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.1638 For example, witness TF1-033 testifĳied 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 testifĳied that the Accused Brima ordered Savage to attack Tombodu at a time where Tombodu was already the base of an AFRC Battalion in Kono District.1639 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 fĳinding on unlawful killings in Tombodu. 855. The Trial Chamber is satisfĳied that in the Indictment period for Kono District ‘Stafff 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 testifĳied that on an unspecifĳied 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.1640 As the attack was conducted by the RUF, the Trial Chamber will not make a fĳinal 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 satisfĳied

1636 TF1-033, Transcript 11 July 2005, pp. 145–148. 1637 George Johnson, Transcript 15 September 2005, pp. 44–45. 1638 TF1-334, Transcript 20 May 2005, p. 56. 1639 George Johnson, Transcript 15 September 2005, p. 40. 1640 DAB-025, Transcript 28 July 2006, pp. 95, 107–108; DAB-101, Transcript 12 September 2006, pp. 96–98. judgments 1439 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 satis- fĳied 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.”1641 859. In reaching its factual fĳindings 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 1998.1642 Witness TF1-113 testifĳied that on his orders, a total of 67 persons were arrested in several villages in Kailahun District and detained at the G5 offfĳice in Kailahun Town. The persons were accused of being Kamajors.1643 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.1644 From the witness’s testimony, the Trial Chamber is satisfĳied 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.’1645 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.1646 Witness TF1-113’s evidence is generally corroborated by a number of Defence Witnesses, although some of them testifĳied that

1641 Indictment, para. 46. 1642 DAB- 147, Transcript 3 October 2006, pp. 48–50. 1643 TF1-113, Transcript 18 July 2005, pp. 84–86. 1644 TF1-113, Transcript 18 July 2005, pp. 87–88. 1645 TF1-113, Transcript 18 July 2005, pp. 85–88. 1646 TF1-113, Transcript 18 July 2005, pp. 89–90. 1440 part iv

Sam Bockarie killed the 57 persons himself.1647 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.1648 862. As witness TF1-113 testifĳied that the above incidents occurred shortly after Johnny Paul Koroma arrived in Kailahun Town and left for Kangema,1649 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.”1650 Accordingly, the Trial Chamber fĳinds 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 satisfĳied 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.”1651 866. No evidence on unlawful killings was led in respect of Heremakono, Kumalu (or Kamalu), Katombo, Kamadugu1652 and Kurubonla.

1647 DAB-147, Transcript 3 October 2006, p. 47; DAB-140, Transcript 19 September 2006, pp. 94–95; DAB-142, Transcript 19 September 2006, pp. 36–37. 1648 DAB-142, Transcript 19 September 2006, pp. 19, 35–36; DAB-147, Transcript 3 October 2006, p. 47. 1649 Also referred to as ‘Kangama.’ 1650 Blaškić Appeal Judgement, para. 114. 1651 Indictment, para. 47. 1652 Rule 98 Decision, para. 96. judgments 1441

867. In reaching its factual fĳindings 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 ‘Jabie,’ loyal to SAJ Musa, at a farm in or near Kabala on an unspecifĳied date in August 1998.1653 Her husband was beaten to death with a ‘mortar pestle’ in the same attack by ‘Jabie’ and a certain ‘Allusein,’ who was loyal to ‘Superman’s’ group.1654 The witness was sexually assaulted and abducted by the fĳighters. Her testimony in relation to these events is considered by the Trial Chamber below in its fĳindings on Count 9.1655 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.1656 The Trial Chamber is thus satisfĳied that the witness’s husband and son were killed by fĳighters loyal to SAJ Musa and ‘Superman.’ 870. On 17 September 1998, “rebels” attacked Kabala a second time. Witness TF1-147 testifĳied 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.1657 However, he heard about the killing of many people.1658 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.1659 During cross-examination, the witness testifĳied 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.1660 In the absence of more specifĳic evidence, the Trial Chamber is not satisfĳied 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

1653 TF1-209, Transcript 7 July 2005, pp. 35–36. 1654 TF1-209, Transcript 7 July 2005, p. 35. 1655 Factual Findings, Outrages on Personal Dignity, paras. 1127–1130. 1656 TF1-209, Transcript 7 July 2005, pp. 49–51. 1657 TF1-147, Transcript 13 July 2005, pp. 11–12, 21. 1658 TF1-147, Transcript 13 July 2005, pp. 12. 1659 TF1-147, Transcript 13 July 2005, pp. 11–12, 20–21. 1660 TF1-147, Transcript 13 July 2005, pp. 12, 21. 1442 part iv their combat uniform, lined them up with their hands tied behind their back and executed them.1661 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 1998.1662 Many civilians were killed upon the orders of ‘Superman.’1663 Specifĳically, Witness DAB-081 testifĳied that more than ten civilians were beaten to death with machetes or sticks by the RUF.1664 873. Witness DAB-081 testifĳied 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.1665 874. In addition to the specifĳic incidents described above, evidence of dead bodies found in the streets of Koinadugu Town was adduced at trial. The Trial Chamber fĳinds this evidence insufffĳicient to form the basis of fĳindings of unlawful killings.1666 (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,1667 the Trial Chamber is satisfĳied 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 unspecifĳied number.1668 The Trial Chamber fĳinds this evidence insufffĳicient to form the basis of fĳindings 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 1998.1669 The soldiers beat the man to death, cut open his stomach and removed his intestines. The intestines were displayed openly at the checkpoint.1670 In close vicinity to the checkpoint, a teacher and his younger brother were killed.1671

1661 TF1-199, Transcript 6 October 2005, pp. 88, 103–104. 1662 DAB-081, Transcript 20 July 2006, p. 82. 1663 DAB-081, Transcript 20 July 2006, p. 95; TF1-153, Transcript 22 September 2005, pp. 51–52. 1664 DAB-081, Transcript 20 July 2006, pp. 99. 1665 DAB-081, Transcript 20 July 2006, p. 98; DAB-081, Transcript 21 July 2006, pp. 2, 3. 1666 DAB-083, Transcript 21 July 2006, p. 46; TF1-153, Transcript 22 September 2005, pp. 51–52. 1667 Brima Final Brief, para. 239; DAB-077, Transcript 19 July 2006, pp. 60, 89. 1668 TF1-199, Transcript 6 October 2005, pp. 77–78; DAB-077, Transcript 19 July 2006, pp. 92–94. 1669 DAB-078, Transcript 6 September 2006, pp. 10–14. 1670 DAB-078, Transcript 6 September 2006, pp. 15–17. 1671 DAB-078, Transcript 6 September 2006, pp. 17–18. judgments 1443

The Trial Chamber is not satisfĳied 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 fĳinds 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.1672 This incident is corroborated by documentary evidence.1673 (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 satisfĳied 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.”1674 881. No evidence on unlawful killings was led with respect to Mafabu.1675 882. In reaching its factual fĳindings 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 testifĳied that Bornoya was attacked by “soldiers” in the morning hours on an unspecifĳied day in May 1998.

1672 DAB-085, Transcript 20 July 2006, pp. 7, 38–41; DAB-078, Transcript 6 September 2006, p. 36. 1673 Exhibit P-57, Conflict Mapping Report, “No Peace without Justice,” 10 March 2004, p. 16056; Exhibit P-54, Amnesty International “Sierra Leone. A year of atrocities against civilians, 1998,” p. 15811; Exhibit D-24 (under seal). 1674 Indictment, para. 48. 1675 Decision on Defence Motion for Judgement of Acquittal Pursuant to Rule 98, 31 March 2006, paras. 89, 96. 1444 part iv

Defence witnesses testifĳied that the exact date of the attack was 8 May 1998. The assailants were armed and wore combat uniforms and red head bands.1676 An unspecifĳied number of civilians were killed during the attack.1677 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.1678 A certain Lansana Mansaray and Sarah Foday were assaulted and seriously wounded and later died as a result of their injuries.1679 Two children of one Alhaji Sorie Mansaray were intentionally burnt to death under a mattress which was set on fĳire.1680 An unspec- ifĳied number of other civilians were killed in the course of the attack, including Adama Kamara, Jammah Daboh, Sherifff Mansaray and Mohamdu Koroma.1681 A female soldier called Adama hacked to death the father of witness TF1-158.1682 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.’1683 885. Witness TF1-158, who was abducted and later used as a child soldier by the troops that attacked Bornoya, testifĳied 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.1684 He testifĳied that he learned about those names during the subsequent attack on the nearby village of Karina. However, witnesses belonging to SAJ Musa’s group testifĳied that SAJ Musa and ‘O-Five’ were not en route with the advance team led by Brima.1685 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.’1686 He testifĳied that he only heard about those names once he arrived at Camp Rosos.1687 The Trial Chamber is satisfĳied 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.1688

1676 TF1-158, Transcript 26 July 2005, p. 30. 1677 TF1-156, Transcript 26 September 2005, pp. 56–58. 1678 TF1-158, Transcript 26 July 2005, pp. 35, 50, 87, 95–97. 1679 TF1-156, Transcript 26 September 2005, pp. 59, 60. 1680 TF1-156, Transcript 26 September 2005, pp. 39, 40. 1681 TF1-156, Transcript 26 September 2005, pp. 36–38. 1682 TF1-158, Transcript 26 July 2005, pp. 33, 34. 1683 DBK-050 Transcript 10 July 2006, pp. 16–17. 1684 TF1-158, Transcript 26 July 2005, pp. 30–34. 1685 Context of the Alleged Crimes, para. 196–198, supra. 1686 TF1-157, 22 July 2005, p. 90. 1687 TF1-157, 22 July 2005, p. 90. 1688 Exhibit P-30(a), “Map of Sierra Leone,” indicating the route of the troops as testifĳied by witness George Johnson, see Transcript 15 September 2005, p. 52; TF1-058, Transcript 14 June 2005, p. 95, testifying that Bonoya [Bornoya] was attacked by the same troops as Karina; Transcript TF1-033, 11 July 2005, p. 18; although TF1-033 testifĳied that the attack on Bornoya occurred around June 1998, this judgments 1445

(ii) Karina 886. On 8 May 1998 AFRC soldiers attacked Karina, a Mandingo village in Bombali District. Previously, at Kamagbengbe, the Accused Brima ordered his troops to specifĳically target Karina, as he alleged that it was the home town of President Kabbah.1689 All three Accused participated in the attack.1690 887. In the presence of witness TF1-334, the Accused Kamara and two other “juntas” locked fĳive young girls into a house and subsequently set it ablaze. The fĳive girls were burnt alive.1691 888. “Juntas” threw an unspecifĳied number of little children into the flames of burning houses. The children were burnt alive.1692 Soldiers stabbed a pregnant woman to death.1693 A certain Saccoh Kankoh Fanta was injured during the attack and subsequently died.1694 An unspecifĳied number of children were killed during the attack.1695 889. ‘Cyborg,’ a security offfĳicer to the Accused Kamara, threw at least four children aged between fĳive and ten years from a two-storey building in Karina.1696 The witness did not clarify whether the four children died as a result. The Trial Chamber therefore is not satisfĳied 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 fĳire. 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.1697 891. Prosecution Witnesses TF1-334, George Johnson, TF1-199 and TF1-055 testi- fĳied that civilians were killed at the Karina mosque, including the Imam.1698 Witness TF1-334 testifĳied that the Accused Brima was at the mosque and accused the Imam of supporting President Kabbah. Brima allegedly said to the Imam:

does not discredit his overall testimony of the route taken which is corroborated by other witnesses, i.e. witness TF1-058 supra. 1689 TF1-334, 23 May 2005, pp. 56–59. 1690 TF1-334, Transcript 23 May 2005, pp. 57–65; George Johnson, Transcript 15 September 2005, pp. 53–54, 58; TF1-033, Transcript 11 July 2005, pp. 18, 19; DBK-094, Transcript 11 July 2006, pp. 26, 27. 1691 TF1-334, Transcript 23 May 2005, pp. 65–67. 1692 TF1-334, Transcript 23 May 2005, pp. 67. 1693 TF1-055, Transcript 12 July 2005, pp. 132, 136. 1694 TF1-058, Transcript 14 July 2005, p. 83. 1695 TF1-055, Transcript 12 July 2005, p. 137. 1696 George Johnson, Transcript 15 September 2005, p. 56. 1697 George Johnson, Transcript 15 September 2005, pp. 54–56. 1698 TF1-334, Transcript 23 May 2005, pp. 68–69; George Johnson, Transcript 15 September 2005, pp. 56, 57; TF1-199, Transcript 6 October 2005, para. 75; TF1-055, Transcript 12 July 2005, p. 142. 1446 part iv

“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 fĳive women with his ‘Magnum’ pistol.1699 Witness George Johnson testifĳied 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.1700 892. The Defence presented a diffferent 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.1701 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.1702 The Imam’s elder brother appointed someone to lead the prayers in the absence of the Imam.1703 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.1704 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.”1705 The Trial Chamber is thus satisfĳied 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.1706 The Trial Chamber is satisfĳied that in fact civilians were killed on a massive scale in Karina.1707 One witness estimated that at least 200 civilians were killed in the attack on Karina.1708 Even though other witnesses have not estimated any total fĳigures for the event, the fĳigure of 200 civilians

1699 TF1-334, Transcript 23 May 2005, pp. 68–69. 1700 George Johnson, Transcript 15 September 2005, pp. 56–57. 1701 DBK-094, Transcript 11 July 2006, pp. 98–100 [closed session]; Exhibit D-15, under seal. 1702 DBK-089, Transcript 14 July 2006, pp. 15–18; DBK-094, Transcript 11 July 2006, pp. 29–30, 43–44. 1703 DBK-089, Transcript 14 July 2006, p. 15. 1704 See Brima Final Brief, para. 247. 1705 TF1-334, Transcript 23 May 2005, p. 68. 1706 DBK-094, Transcript 11 July 2006, pp. 38–40. 1707 George Johnson, Transcript 15 September 2005, p. 55; TF1-033, Transcript 11 July 2005, pp. 19–20; TF1-058, Transcript 14 July 2005, pp. 78–82; DBK-089, Transcript 14 July 2006, pp. 11–13; Exhibit P-54, Amnesty International, “Sierra Leone, A Year of Atrocities against Civilians,” 1998, p. 15810. 1708 TF1-055, Transcript 12 July 2005, p. 80. judgments 1447 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 unspecifĳied 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.1709 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.1710 (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.1711 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.”1712 (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 satisfĳied 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 fĳinds that the material elements in relation to Counts 4 and 5 have been established. 898. The Trial Chamber is further satisfĳied that each of the killings in Karina was part of a large scale killing which in its totality satisfĳies 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.”1713

1709 George Johnson, Transcript 15 September 2005, pp. 60–61. 1710 George Johnson, Transcript 15 September 2005, pp. 61–63. 1711 TF1-033, Transcript 11 July 2005, pp. 32–33; TF1-334, Transcript 23 May 2005, pp. 81, 84. 1712 TF1-033, Transcript 11 July 2005, p. 34. 1713 Indictment, para. 49. 1448 part iv

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.1714 While the Trial Chamber accepts this evidence as credible, given its general nature, the Trial Chamber relies on it to corroborate its fĳindings on the more specifĳic incidents described below. 901. The Trial Chamber has considered the available evidence and, in arriving at the following fĳindings 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 testifĳied that when the troops entered Freetown, police offfĳicers and their families were specifĳically targeted and killed.1715 The targeting of police offfĳicers followed a specifĳic 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 offfĳicers and SLPP party members.1716 The Accused Kanu reminded the troops of that order at a meeting near Orugu Village1717 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.1718 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 satisfĳied that the killed offfĳicers were civilians. b. State House Area 904. Witness TF1-033 testifĳied that on 6 January 1999, while he was seated on a bench at State House with Gibril Massaquoi, fĳighters including ‘Junior Sherifff’ 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 testifĳied that ‘Junior Sherifff’ then shot and killed the boy.1719 905. Witness TF1-033 also testifĳied that on 6 January 1999 and the subsequent four or fĳive days thereafter, he observed civilians being killed around State House

1714 TF1-033, Transcript 11 July 2005, pp. 63–65; TF1-153, Transcript 22 September 2005, p. 100; TF1- 334, Transcript 14 June 2005, pp. 28, 64–65; George Johnson, Transcript 16 September 2005, p. 38; Gibril Massaquoi, Transcript 10 October 2005, pp. 12, 13; TF1-083, Transcript 8 April 2005, pp. 54–56, 62; TF1-227, Transcript 8 April 2005, p. 101. 1715 TF1-157, Transcript 25 July 2005, pp. 19, 20. 1716 George Johnson, Transcript 16 September 2005, p. 4. 1717 Marked as location (H) on exhibit P-30(a), Transcript 16 September 2005, p. 18. 1718 TF1-George Johnson, Transcript 16 September 2005, 17, 18. 1719 TF1-033, Transcript 11 July 2005, pp. 63–65. judgments 1449 by AFRC fĳighters on the orders of ‘Gullit.’1720 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 fĳindings 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.1721 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.1722 907. Witness Gibril Massaquoi testifĳied 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.1723 The witness testifĳied 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.”1724 The witness testifĳied 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.1725 908. The Trial Chamber has considered the cross-examination of witness Gibril Massaquoi on this point.1726 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.1727 909. Witness TF1-184 gave the following evidence regarding killings he witnessed at State House on 6 January 1999:

1720 TF1-033, Transcript 11 July 2005, pp. 63–65. 1721 TF1-184, Transcript 27 September 2005, p. 62. 1722 TF1-334, Transcript 14 June 2005, p. 22. 1723 Gibril Massaquoi, Transcript 7 October 2005, pp. 115–116. 1724 Gibril Massaquoi, Transcript 7 October 2005, p. 117. 1725 Gibril Massaquoi, Transcript 7 October 2005, p. 116. 1726 Gibril Massaquoi, Transcript 10 October 2005, pp. 101–112. 1727 Gibril Massaquoi, Transcript 10 October 2005, p. 111. 1450 part iv

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.1728 The witness was not cross-examined on this evidence, which the Trial Chamber fĳinds somewhat imprecise. 910. The Trial Chamber is satisfĳied 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 diffferent point in time and described the incident from their various perspectives. The Trial Chamber is satis- fĳied that the Accused Brima gave an order to his subordinates, including Kanu, to execute the civilians. The Trial Chamber is further satisfĳied that Kanu shot and killed one civilian near State House and ordered his men to execute another three civilians. 911. Witness TF1-334 testifĳied 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 hard- ware” 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.1729 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.1730 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 satisfĳied that they belonged to the civilian population. The Trial Chamber is satisfĳied 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

1728 TF1-184, Transcript 27 September 2005, pp. 61–62. 1729 TF1-334, Transcript 14 June 2005, pp. 22–24, 27. 1730 TF1-024, Transcript 7 March 2005, pp. 71–73. judgments 1451 civilians because they had “overlooked” him,1731 meaning that they did not pay him sufffĳicient 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 fĳighters to force captured civilians to join the AFRC troops on their retreat, in order to replace those fĳighters 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.1732 The Trial Chamber thus fĳinds that at least thirty civilians were killed. 915. The Brima Defence submits that witness TF1-024’s identifĳication of ‘Gullit’ at State House was a mere guess, intended to favour the Prosecution case.1733 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 clarifĳied that he did not intend to suggest that the person to whom he referred as ‘Gullit’ was white.1734 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.1735 Further, there is corroborating evidence from other witnesses that ‘Gullit’ was present at State House in the fĳirst week after the invasion.1736 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.1737 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.1738 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.

1731 TF1- 334, Transcript 14 June 2005, pp. 28–29. 1732 TF1-024, Transcript 7 March 2005, pp. 46–48, 72–74. 1733 Brima Defence Final Brief, para. 182. 1734 TF1-024, Transcript 7 March 2005, pp. 69–70. 1735 TF1-024, Transcript 7 March 2005, pp. 44–45 1736 TF1-334, Transcript 14 June 2005, pp. 21–22; Gibril Massaquoi, Transcript 7 October 2006, p. 115; George Johnson, Transcript 16 September 2005, p. 27. 1737 Brima Defence Final Brief, para. 182. 1738 First Accused Brima, Transcript 6 June 2006, pp. 27–28; TF1-024, Transcript 7 March 2005, pp. 70–73. 1452 part iv

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.1739 Witness TF1-334 was at State House in the presence of the three Accused, his superior Commander A,1740 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.1741 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.1742 The witness testifĳied 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 fĳirst person who came out was a dead person.”1743 The witness was unable to estimate the number of civilians killed in this manner. d. Fourah Bay 919. Witness TF1-334 testifĳied 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 testifĳied 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 testifĳied that all of the commanders participated in the attack, naming specifĳically ‘Gullit’ and ‘Five-Five.’ The troops then moved to Upgun.1744 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 testifĳied that he went on the

1739 TF1-334, Transcript 14 June 2005, p. 40. 1740 Name mentioned on exhibit P-12. 1741 TF1-334, Transcript 14 June 2005, pp. 41–42. 1742 TF1-334, Transcript 14 June 2005, pp. 43–44. 1743 TF1-334, Transcript 14 June 2005, p. 45. 1744 TF1-334, Transcript 14 June 2005, pp. 66–67. judgments 1453 attack, along with around one hundred AFRC soldiers, led by one Saidu Kambolia.1745 “A lot of civilians” were killed, including men, women and children burned inside houses. Soldiers shot people who attempted to escape from burning houses.1746 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.”1747 After the operation, the soldiers returned to State House where Brima was present.1748 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 testifĳied that he was at Ferry Junction, after the troops lost State House, with ‘Gullit’ and ‘Five-Five’ and Kamara was nearby.1749 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.’1750 He described a demonstration of an amputation that ‘Five- Five’ gave for the troops at this point.1751 922. Brima then ordered the soldiers to move to the Upgun roundabout via Kissy Road. The witness testifĳied 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.1752 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.1753 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.1754

1745 George Johnson, Transcript 16 September 2005, pp. 42–44. 1746 George Johnson, Transcript 16 September 2005, p. 44. 1747 George Johnson, Transcript 16 September 2005, p. 44 1748 George Johnson, Transcript 16 September 2005, p. 45. 1749 TF1-184, Transcript 27 September 2005, pp. 71–72; 30 September 2005, p. 78. 1750 TF1-184, Transcript 27 September 2005, p. 73. 1751 See Factual Findings, Physical Violence, para. 1230, infra. 1752 TF1-184, Transcript 27 September 2005, pp. 74–75. 1753 TF1-184, Transcript 27 September 2005, p. 75. 1754 TF1-184, Transcript 27 September 2005, pp. 75–76. 1454 part iv

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.1755 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.1756 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 fĳinds it has not been established beyond reasonable doubt that the Accused Brima personally killed any civilians. However, the Trial Chamber is satisfĳied 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 fĳinds, 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 testifĳied that the Accused Kanu went on the attack, the Trial Chamber is not satisfĳied that the Accused Kanu personally killed any civilians. e. Guard Street 927. At an unspecifĳied 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.1757 (ii) Kissy a. Good Shepherd Hospital 928. Witness TF1-104 was working as a nurse at the Good Shepherd Hospital in Kissy in January 1999.1758 He testifĳied that on 18 January 1999, a group of “juntas” went to the Good Shepherd Hospital in Kissy and accused personnel there of

1755 Kamara Final Brief, paras. 207–209. 1756 Kamara Final Brief, para. 209. 1757 TF1-334, Transcript 14 June 2005, pp. 72–73. 1758 TF1-104, Transcript 30 June 2005, pp. 5–9. judgments 1455 treating ECOMOG and Kamajors. They forced everybody out of the hospital – patients, nurses, stafff, and visitors – and beat them with a large stick called a ‘coboko,’ which has a rope tied to it.1759 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 fĳire and began shooting randomly from diffferent directions. The witness was injured and indicated wounds on his elbow, knee and right hip for the record during his examination-in-chief. He testifĳied that fĳifteen civilians were killed as a result of the shooting.1760 930. The Trial Chamber fĳinds 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 testifĳied 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.1761 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.”1762 ‘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.1763 932. On or about 22 January 1999, witness TF1-083 sought refuge from fĳighting between “rebels” and ECOMOG in Rogbalan Mosque. He encountered many corpses on the premises of the mosque, both inside the mosque itself and within

1759 TF1-104, Transcript 30 June 2005, pp. 22–24. 1760 TF1-104, Transcript 30 June 2005, pp. 24–29. 1761 TF1-334, Transcript 14 June 2005, pp. 87–88. 1762 TF1-334, Transcript 14 June 2005, p. 88. 1763 TF1-334, Transcript 14 June 2005, pp. 88–89. 1456 part iv 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.1764 933. Witness TF1-021 testifĳied 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 fĳifteen 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 afffĳirmatively. 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 offfered it to their assailants so that they would leave. The men took the money and then began fĳiring 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 testifĳied that he did not know to which group the men belonged as they did not wear identifying clothing and it was difffĳicult 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 testifĳied 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.1765 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 identi- fĳied themselves as belonging to the RUF, which the witness did not deny at trial.1766 Specifĳically, 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.”1767 936. The Trial Chamber fĳinds 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.1768

1764 TF1-083, Transcript 8 April 2005, pp. 69–70, 82–83. 1765 TF1-021, Transcript 15 April 2005, pp. 25–34. 1766 TF1-021, Transcript 15 April 2005, p. 45; Brima Final Brief, para. 249, referring to Exhibits D-05.A and D-05.B. 1767 Statement of Witness TF1-021 dated 25 February 2003, CMS p. 6378 [confĳidential]. 1768 Brima Final Brief, paras. 248–249. judgments 1457

937. The Trial Chamber observes that witness TF1-021 testifĳied 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 fĳighters 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 difffĳicult 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.1769 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 satisfĳied the reference in the transcript to “Windsor Street” is due to an error. The Trial Chamber is therefore satisfĳied beyond reasonable doubt that the armed men who attacked Rogbalan Mosque were AFRC fĳighters as described in the testimony of witness TF1-334. c. Kissy Mental Home 939. Witness TF1-334 testifĳied 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.1770 Specifĳically, he ordered the witness, ‘Pikin,’ ‘Shrimp,’ ‘Hassim’ and others to go as far as they could towards “PWD” killing people.1771 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 fĳiring machine guns at the civilians, killing an unspec- ifĳied 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.1772 941. Witness TF1-334 further testifĳied that in this period the AFRC troops held eight captured nuns at Kissy Mental Home. After ECOMOG began bombarding

1769 Exhibit P-46, “Fifth report of the Secretary General on the UN Observor Mission in Sierra Leone,” 4 March 1999, p. 15659. 1770 TF1-334, Transcript 14 June 2005, pp. 83–84. 1771 TF1-334, Transcript 14 June 2005, p. 84. 1772 TF1-334, Transcript 14 June 2005, pp. 86–87. 1458 part iv 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 fĳive nuns.1773 Witness George Johnson also testifĳied 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.1774 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 testifĳied that it was ‘Gullit’ who ordered their execution.1775 942. On the basis of the testimony of witnesses TF1-334, George Johnson and TF1-184, the Trial Chamber fĳinds beyond reasonable doubt that three nuns were killed on the orders of the Accused Brima. 943. Witness TF1-153 testifĳied 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.1776 d. Rowe Street 944. Witness TF1-084 testifĳied that at an unspecifĳied 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.1777 945. In cross-examination, it emerged that in a prior statement the witness had referred to the rebels in Kissy as ‘RUF.’1778 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.’1779 The Trial Chamber recalls that it was often difffĳicult for members of the public to distinguish between AFRC and RUF fĳighters. In view of this, the Trial Chamber considers the witness’s identifĳication 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 fĳighting with the

1773 TF1-334, Transcript 14 June 2005, pp. 95–97. 1774 George Johnson, Transcript 16 September 2005, p. 55. 1775 TF1-184, Transcript 27 September 2005, pp. 82–84. 1776 TF1-153, Transcript 23 September 2005, pp. 20–22. 1777 TF1-084, Transcript 6 April 2005, pp. 40–41, 45–47. 1778 TF1-084, Transcript 6 April 2005, p. 45. 1779 TF1-084, Transcript 6 April 2005, p. 45. judgments 1459

AFRC troops.1780 The Trial Chamber accordingly fĳinds 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.1781 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.1782 Witness TF1-098’s cousin died as a result of the amputation.1783 (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.1784 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.1785 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 satisfĳied beyond reasonable doubt that this incident at Calaba Town is diffferent to that described above as taking place at Kissy Mental Home and accordingly makes no additional fĳindings. (iv) Wellington 950. Witness TF1-085 was abducted by rebels in Wellington in January 1999. She testifĳied that in Wellington, “I saw them burning houses, killing people and looting property.”1786 The Trial Chamber fĳinds this evidence too general to make any additional fĳinding of unlawful killings. However, the Trial Chamber has considered the witness’s testimony regarding her abduction in its factual fĳindings 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 satisfĳied beyond

1780 Gibril Massaquoi, Transcript 7 October 2005, p. 124. 1781 TF1-098, Transcript 5 April 2005, p. 39. 1782 TF1-098, Transcript 5 April 2005, pp. 40–42. 1783 TF1-098, Transcript 5 April 2005, pp. 42–43. 1784 Gibril Massaquoi, Transcript 10 October 2005, pp. 27–28. 1785 Gibril Massaquoi, Transcript 10 October 2005, p. 28. 1786 TF1-085, Transcript 7 April 2005, p. 15. 1460 part iv 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 in the Western Area, as charged under Counts 4 and 5. The Trial Chamber is further satisfĳied 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.”1787 953. The Trial Chamber recalls that the Prosecution did not lead evidence of unlawful killings with respect to Tendakum.1788 954. In arriving at the following fĳindings, 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 testifĳied that on an unspecifĳied 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 unspecifĳied number of women to a house where they killed some of them with axes and shot dead the others.1789 956. In April 1999, witness TF1-253 was abducted on the way to Ro-Makambisa by “rebels” who took him to Manaarma.1790 As they entered Manaarma, witness TF1-253 saw a pregnant woman whose head had been severed and her stomach

1787 Indictment, para. 50. 1788 Rule 98 Decision, para. 96. The Trial Chamber notes that the Defence evidence shows that on an unspecifĳied day in April 1999, ‘rebels’ killed a lot of people during the attack on Tendakum. Witness DBK-111 stated that he saw over ten mass graves where people were buried in Tendakum.1788 He does not know how they were killed. As the Prosecution had not led evidence of unlawful killings in this location, the Trial Chamber did not require the Defence to complete this evidence: See Transcript 18 September 2006, pp. 49–50. 1789 TF1-320, Transcript 8 April 2005, pp. 13–15, 38–40. 1790 TF1-253, Transcript 15 April 2005, pp. 63–65, 79–80. judgments 1461 opened by the “rebels.”1791 The Brima Defence submits that the testimony of witness TF1-253 is inconsistent and unreliable.1792 However, the Trial Chamber is sat- isfĳied 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,1793 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 1999.1794 The Trial Chamber will thus consider the available evidence on the attacks on Port Loko and Manaarma in order to make a fĳinding on this submission. 958. Witness George Johnson testifĳied that en route to Port Loko, the troops attacked a village where a fat lady was killed by an AFRC captain using a machete.1795 The witness, who was the commander of the troops at the time, then sent an advance troop to secure the village ahead. He testifĳied that when he subsequently arrived at the next village, he observed a number of dead civilians and ‘Sherifff’ complained to him that ‘Cyborg’ had killed them.1796 The witness did not give the names of either village. He stated that no other villages were attacked en route to Port Loko.1797 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.1798 959. Witness TF1-334 also went on the operation commanded by George Johnson to Port Loko.1799 The witness testifĳied that at Port Loko, Junior Lion and the other troops fought the Malians at Shelenka secondary school.1800 960. Witness TF1-253 was told by one of the rebels who captured him that he was part of Superman’s group.1801 However, he stated that “Johnson” and “Sesay” were the “big men” in Manaarma. He described Johnson as fat and black with plaited hair.1802 “Colonel Sesay” was described as fair in complexion, not overly tall, wearing combat and a ‘cap’ that from the witness’s description sounded like

1791 TF1-253, Transcript 15 April 2005, pp. 80–81. 1792 Brima Final Brief, para. 253. 1793 TF1-253, Transcript 15 April 2005, p. 94; TF1-320, Transcript 8 April 2005, pp. 16–18. 1794 Prosecution Final Brief, paras. 1785–1786. 1795 George Johnson, Transcript 16 September 2005, p. 79 1796 George Johnson, Transcript 16 September 2005, pp. 75–76. 1797 George Johnson, Transcript 16 September 2005, p. 76. 1798 George Johnson, Transcript 16 September 2005, p. 74. 1799 TF1-334, Transcript 15 June 2005, p. 34. 1800 TF1-334, Transcript 15 June 2005, p. 35. 1801 TF1-253, Transcript 15 April 2005, p. 62. 1802 TF1-253, Transcript 15 April 2005, p. 81. 1462 part iv a balaclava.1803 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.”1804 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 testifĳied that at Port Loko, the rebels fought the Malians at a secondary school called Schenlenker, at which point he escaped.1805 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.1806 The Trial Chamber infers that the witness was referring to ‘Shelenker’ or ‘Shelenka,’ the school referred to by witnesses TF1-320 and TF1-334.1807 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 testifĳied that the troops attacked Manaarma en route.1808 963. On the basis of the evidence of witnesses TF1-253 and TF1-320, the Trial Chamber fĳinds 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 satisfĳied 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 fĳinding, 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.1809 (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 satisfĳied beyond reasonable doubt that between February and April 1999, in Port Loko District, an

1803 TF1-253, Transcript 15 April 2005, p. 82. 1804 TF1-253, Transcript 15 April 2005, p. 83. 1805 TF1-253, Transcript 15 April 2005, pp. 97–98, 100. 1806 TF1-320, Transcript 8 April 2005, pp. 16–17. 1807 TF1-320, Transcript 8 April 2005, pp. 17–18. 1808 DBK-012, Transcript 6 October 2006, p. 45–46. 1809 DBK-111, Transcript 18 September 2006, pp. 43–45 judgments 1463 unknown number of civilians were unlawfully killed by AFRC troops in Manaarma, as charged under Counts 4 and 5. The Trial Chamber further fĳinds 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.1810 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.1811 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. Specifĳically, the Prosecution alleges that, there is no doubt that the perpetrators knew of the absence of consent of the victims.1812 968. Insofar as the Defence challenge the testimony of witnesses with regard to specifĳic 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.1813

1810 Indictment, para. 51–57. 1811 Prosecution Final Brief, para. 998. 1812 Prosecution Final Brief, para. 998. 1813 Indictment, para. 52. 1464 part iv

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.1814 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 fĳinds the evidence given by these witnesses with regards to the commission of crimes under Count 6 relates to locations not specifĳied in the Indictment and therefore makes no fĳind- ings on the basis of their evidence. 972. In arriving at its factual fĳindings, 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 testifĳied that “juntas” and “rebels” under the command of a certain ‘Akim Sesay’ attacked Koidu Town and raped young girls in February or March 1998.1815 On cross-examination, witness DBK-117 gave similar evidence. The witness, who was based in Koidu from April 1998 until it was overtaken by ECOMOG1816 and again when Koidu was recaptured by ‘Superman’ in December 1998, testifĳied that the RUF raped women and girls when they went on patrols in Kono District.1817 The Trial Chamber fĳinds that the evidence of both Prosecution witness TF1-217 and Defence witness DBK-117 to be vague and insuf- fĳicient 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 fĳinds that the relevant aspects fall outside of the indicted period for Kono District and therefore makes no fĳindings in this regard.1818 (ii) Foendor / Foendu 975. Witness TF1-076 testifĳied 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

1814 Rule 98 Decision, para. 159. 1815 TF1-217, Transcript 17 October 2005, pp. 4–5, 8. 1816 Approximately May 1998, see Role of the Accused. 1817 DBK-117, Transcript 16 October 2006, p. 35. 1818 TF1-019, Transcript 30 June 2005, pp. 81–82. judgments 1465 cutlass and were speaking Liberian English. One of the rebels raped the witness. He cut offf her skirt and underwear with a knife and penetrated her with his penis. The witness bled and became light-headed.1819 On cross-examination, the Defence put to the witness a prior statement in which she stated that the rebel removed her “lappa.”1820 The Trial Chamber fĳinds that there is no meaningful diffference between a “lappa” and a skirt and therefore this inconsistency does not undermine the credibility of the witness. 976. The Trial Chamber is satisfĳied 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 specifĳically 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.1821 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.1822 The Trial Chamber fĳinds this is a mischaracterisation of the evidence. The witness clearly testifĳied 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.1823 979. The Trial Chamber fĳinds 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 testifĳied 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 benefĳit of the Accused. The Trial Chamber therefore makes no further fĳindings on the evidence of witness TF1-076.

(iii) Wondedu 980. In making its factual fĳindings in Wondedu, the Trial Chamber takes into consideration the evidence of Prosecution witness TF1-217 who testifĳied that women, including his sister, were abducted from Wondedu.1824 However, no

1819 TF1-076, Transcript 27 June 2005, pp. 101–108. 1820 “Lappa” is a Krio word which refers to a piece of cloth which women traditionally wrap around their waists as a skirt-like covering or sarong; TF1-076, Transcript 27 June 2005, p. 108. 1821 Prosecution Response to Motion for Judgement of Acquittal, para. 154. 1822 Prosecution Final Brief, para. 1320. 1823 Prosecution Response to Rule 98 Motion, para. 146. 1824 TF1-217, Transcript 17 October 2005, p. 11. 1466 part iv 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 satisfĳied 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.1825 983. The Prosecution has conceded that it did not lead evidence of rape in respect of Heremakono.1826 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 fĳinds the evidence given by these witnesses relates to locations not specifĳied in the Indictment and therefore makes no fĳind- ings on the basis of their evidence. 985. In coming to its fĳindings 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 testifĳied that after the AFRC was overthrown in Freetown in February 1998 but before the rainy season, she was raped by ‘Junior Lion’1827 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.1828 The Trial Chamber is satis- fĳied that the actus reus and mens rea of rape are satisfĳied on the basis of this evidence. 987. Witness DBK-083 testifĳied that sometime after the AFRC and RUF were forced to withdraw from Freetown,1829 a column of troops passed by his farm outside of Kabala. The witness testifĳied that the troops were led by SAJ Musa and Superman. At that time, the witness heard reports of rapes.1830

1825 Indictment, para. 53. 1826 Rule 98 Decision, para. 159. 1827 ‘Junior Lion’ is Prosecution witness George Johnson. 1828 DAB-156, Transcript 29 September 2006, pp. 39–40, 43. 1829 Approximately February 1998, see Context of Alleged Crimes, supra. 1830 DBK-083, Transcript 21 July 2006, pp. 28–36. judgments 1467

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 fĳinds that the relevant evidence falls outside of the indicted period. The witness testifĳied that he came to Kabala in 1998. While no specifĳic 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.1831 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 testifĳied 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.1832 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 testifĳied 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.1833 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 satisfĳied 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.1834 The witness saw four rebels arrive; two went towards a neighbouring farm and two remained at the witness’s mother’s farm.1835 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

1831 TF1-199, Transcript 06 October 2005, pp. 69–70, 75, 89. 1832 TF1-209, Transcript 7 July 2005, pp. 29–30. 1833 TF1-209, Transcript 7 July 2005, pp. 43–44. 1834 TF1-209, Transcript 7 July 2005, p. 31. 1835 TF1-209, Transcript 7 July 2005, pp. 67–69. 1468 part iv of the rapes. She stated that her “pregnancy was wasted”1836 which the Trial Chamber understands to mean that she miscarried as a result of the rapes. 992. The witness testifĳied 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.1837 The witness also testifĳied 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.1838 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.1839 994. The Trial Chamber notes that the witness’s testimony was unclear with regards to her location at the time of the attacks. She testifĳied that she was “in Kabala in Koinadugu” at the time that she fĳirst saw rebels in August 1998, but then continued to respond to the Prosecutor’s questions with regards to “Koinadugu.”1840 She also testifĳied that the rebels she saw at this time told her they were going to Kabala.1841 On cross-examination, the witness clarifĳied that in August 1998 in the rainy season she was not in Kabala, but in Koinadugu.1842 995. On the second occasion the witness saw rebels, at the time that according to her testimony she was raped, the witness testifĳied she had fled to her mother’s farm but did not give the precise location of the farm. She subsequently testifĳied that after the attack she was brought “to town” by the rebels.1843 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 fĳinds the witness’s evidence with regards to this attack credible and not signifĳicantly 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 satisfĳied that the perpetrators of the attack

1836 TF1-209, Transcript 7 July 2005, p. 33. 1837 TF1-209, Transcript 7 July 2005, pp. 31–33, 35–36. 1838 TF1-209, Transcript 7 July 2005, pp. 31, 33–34. 1839 TF1-209, Transcript 7 July 2005, p. 32. 1840 TF1-209, Transcript 7 July 2005, p. 29. 1841 TF1-209, Transcript 7 July 2005, p. 30 1842 TF1-209, Transcript 7 July 2005, p. 63. 1843 TF1-209, Transcript 7 July 2005, pp. 31–32, 36. judgments 1469 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 satisfĳied 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 testifĳied 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 testifĳied that the person who captured her took her to a house where the witness cooked and laundered for him. The witness testifĳied that he turned her into his “wife” which she explained meant that he would have sex with her whenever he felt like it.1844 The witness indicated that this person was ‘Jabie.’ The witness testifĳied that following ‘Jabie’s death, she was held and abused by ‘Allusein.’1845 998. The witness testifĳied 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 testifĳied 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.1846 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 difffĳiculty in conveying what exactly she meant. However, the Trial Chamber is satisfĳied 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.1847 1000. With regards to the afffĳiliations of the two men, the witness fĳirst testifĳied that ‘Jabie’ was a member of SAJ Musa’s group and that ‘Allusein’ was a member of ‘Superman’s group.1848 The witness subsequently testifĳied 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.1849 This is inconsistent with her statement that she was fĳirst with ‘Jabie’ and that he belonged to SAJ Musa’s group. The witness later reiterated that ‘Allusein’ was part of Superman’s group.1850 She also testifĳied that after she was captured and taken to Koinadugu Town, she

1844 TF1-209, Transcript 7 July 2006, p. 38. 1845 TF1-209, Transcript 7 July 2006, pp. 39, 38–39, 44–45. 1846 TF1-209, Transcript 7 July 2006, pp. 35–36. 1847 TF1-209, Transcript 7 July 2006, pp. 38–39. 1848 TF1-209, Transcript 7 July 2006, p. 39. 1849 TF1-209, Transcript 7 July 2006, p. 38. 1850 TF1-209, Transcript 7 July 2006, p. 52. 1470 part iv 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.’1851 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 satisfĳied by the witness’s clear statements that ‘Five-Five’ and “Fire-Fire” were separate persons with diffferent 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 testifĳied 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 fĳight in which two members of the CDF were killed1852 and that sometime following that Koinadugu was completely burnt.1853 The witness testifĳied that following this she went to a village near Koinadugu called Kalkoya.1854 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.”1855 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.1856 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?

1851 TF1-209, Transcript 7 July 2006, pp. 54–55. 1852 TF1-209, Transcript 7 July 2005, pp. 39–40. 1853 TF1-209, Transcript 7 July 2005, p. 42. 1854 TF1-209, Transcript 7 July 2005, p. 43. 1855 TF1-209, Transcript 7 July 2005, p. 45. 1856 TF1-209, Transcript 7 July 2005, p. 46. judgments 1471

A: Yes, that is my own village. That is where my father was born. Q: Your village is called Koinadugu? A: Yes.1857 1004. On further cross-examination by Counsel for Kanu the witness stated that she stayed with ‘Jabie’ and ‘Allusein’ in Koinadugu Town1858 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.1859 1005. The Trial Chamber accepts that the witness may have been nervous to appear before it and that it may have been difffĳicult 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 satisfĳied 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 fĳirst with a certain ‘Jabie’ for a period of three months and subsequently with a certain ‘Allusein’ for one month. 1007. The Trial Chamber is satisfĳied that the witness’s identifĳication 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 fĳinding that ‘Jabie’ was a member of the AFRC or RUF. 1008. The Trial Chamber is satisfĳied 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 satisfĳied 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 confĳine- ment, that the witness could not have validly consented to the repeated acts of sexual intercourse. The Trial Chamber is thus satisfĳied that the actus reus and mens rea elements of rape are met with regards to this incident.

1857 TF1-209, Transcript 7 July 2005, pp. 46–47. 1858 TF1-209, Transcript 7 July 2005, p. 52. 1859 TF1-209, Transcript 7 July 2005, p. 60. 1472 part iv

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 fĳinds 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 testifĳied 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 fĳindings with regards to Count 6 on the basis of this testimony. 1011. The Trial Chamber fĳinds that the evidence of witness TF1-209 is generally supported by that of Defence witness DAB-079 who testifĳied that he was based in Kabala and was operating with the CDF shortly after the AFRC Coup in May 1997.1860 The witness’s professional capacity, given to the Trial Chamber in closed session,1861 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 satisfĳied 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, Yifĳin and Geberefed. The witness testifĳied 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.1862 1012. The witness testifĳied 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 1998.1863 They arrived on approximately the 15th of February.1864 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.1865 1013. The witness testifĳied 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.1866 The witness was present at this meeting and testifĳied that there were a large number of SLA offfĳicers at the

1860 DAB-079, Transcript 28 July 2006, pp. 8, 43 1861 DAB-079, Transcript 28 July 2006, p. 7. 1862 DAB-079, Transcript 28 July 2006, pp. 30–36. 1863 DAB-079, Transcript 28 July 2006, pp. 9–10. 1864 DAB-079, Transcript 28 July 2006, p. 65. 1865 DAB-079, Transcript 28 July 2006, p. 65. 1866 DAB-079, Transcript 28 July 2006, p. 13. judgments 1473 meeting. The witness understood the meeting was called by SAJ Musa in response to reports to him from civilians in Kabala that an SLA offfĳicer had attempted to steal money from a civilian. 1014. The witness testifĳied 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 testifĳied 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 testifĳied that the RUF committed rapes. The witness testifĳied 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 fĳive women. The witness stated that the rapes motivated some civilians in Kabala to form the CDF.1867 1015. Later in his evidence in chief, the witness suggested that rape was a trademark of the RUF. The witness testifĳied 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 testifĳied 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.1868 1016. Witness DAB-079 also testifĳied 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.1869 1017. The Trial Chamber fĳinds the evidence of witness DAB-079, although largely hearsay, to be credible and consistent. The witness was not signifĳicantly 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 insufffĳicient 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 fĳindings which would support a fĳinding 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

1867 DAB-079, Transcript 28 July 2006, pp. 46–47. 1868 DAB-079, Transcript 28 July 2006, pp. 36–41. 1869 DAB-079, Transcript 28 July 2006, p. 42. 1474 part iv 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 fĳinds 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 specifĳic incidents of rape to which witness TF1-209 testifĳied 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 testifĳied 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, 1998.1870 Noting the evidence of witness DAB-078 who testi- fĳied that he did not see or hear about any rapes when Fadugu was attacked on 22 May 1998,1871 the Trial Chamber fĳinds 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 testifĳied that he was in Fadugu Town when ECOMOG forces in the town were attacked on 11 September 1998. The witness testifĳied that he hid during the attack and when the gunfĳire 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.1872 The Trial

1870 Prosecution Final Brief, para. 1490. 1871 DAB-078, Transcript 11 September 1998, pp. 8–22, 53. 1872 DAB-078, Transcript 11 September 1998, pp. 34–40. judgments 1475

Chamber is satisfĳied 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.1873 The witness testifĳied 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.’1874 The witness knew that ‘Savage’ and ‘Ishmael’ were SLAs “from the discussion with the men.”1875 The Trial Chamber fĳinds the testimony of witness DAB-078 to be detailed, consistent and credible and that the actus reus and mens rea of rape are satisfĳied with regards to this incident. 1024. The Trial Chamber has carefully reviewed the testimony of Defence witness DAB-085 who testifĳied that between February and September 1998, he did not see or hear about any rapes or sexual violence by members of the AFRC.1876 The Trial Chamber fĳinds 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 Fadugu1877 but the Chamber has not taken this evidence into consideration in its factual fĳindings on Count 6 as the evidence relates to events which fall outside of the indicted period. The witness testifĳied that he was abducted at Christmas time, 1998, in Bombali District and travelled to several places before arriving in Fadugu.1878 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 satisfĳied 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).1879

1873 DAB-078, Transcript 11 September 1998, p. 40. 1874 DAB-078, Transcript 11 September 1998, pp. 40–41. 1875 DAB-078, Transcript 11 September 1998, p. 57. 1876 DAB-085, Transcript 20 July 2006, pp. 50–51. 1877 TF1-199, Transcript 6 October 2005, pp. 79–80. 1878 TF1-199, Transcript 6 October 2005, pp. 69–70. 1879 Indictment, para. 54. 1476 part iv

1028. At the Motion for Acquittal stage the Prosecution conceded that there was no evidence of rape in respect of Mandaha.1880 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 fĳinds the evidence given by these witnesses relates to locations not specifĳied in the Indictment and therefore makes no fĳindings on the basis of their evidence. 1030. In arriving at its factual fĳindings, 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 testifĳied 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 satisfĳied that the time period described by the witness is May through July 1998. The witness testifĳied 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.1881 The existence of a scar on the witness’s body was noted by the Chamber.1882 The witness testifĳied 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 testifĳied 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.1883 After she was beaten the witness was raped twice more. The witness described the last rebel who

1880 Rule 98 Decision, para. 159. 1881 TF1-269, Transcript 14 July 2005, pp. 41–43. 1882 TF1-269, Transcript 14 July 2005, pp. 43. 1883 TF1-269, Transcript 14 July 2005, p. 46. judgments 1477 raped her as wearing civilian dress.1884 Altogether, the witness was raped by fĳive rebels.1885 1033. The Trial Chamber fĳinds 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 fĳinds the evidence described to be credible and that the actus reus and mens rea of rape are satisfĳied on the basis of her evidence. 1034. Prosecution witness TF1-267 testifĳied 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.1886 Several days later, when the witness and her family were drying their belongings after a “big rain”1887 in a nearby area called Rotu, rebels and soldiers attacked. The witness testifĳied 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.”1888 On cross-examination, the witness stated that she was able to identify SLA soldiers even though she had not seen them before and she clarifĳied that one of the soldiers was wearing a cap and trousers which were both “military fatigue” and that others were wearing big black boots.1889 The witness explained that others wore civilian clothes.1890 1035. The witness tried to run away, but a soldier kicked her and she fell down. The soldier tore offf all her clothes, including her “knicker”1891 – 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.”1892 The witness was then raped by another rebel. She tried to fĳight 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 testifĳied 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 testifĳied that the last rape was

1884 TF1-269, Transcript 14 July 2005, pp. 43–47. 1885 TF1-269, Transcript 14 July 2005, p. 46. 1886 TF1-267, Transcript 26 July 2005, pp. 102–105; Transcript 27 July 2005, pp. 5, 10–11. 1887 TF1-267, Transcript 26 July 2005, pp. 103–104; Transcript 27 July 2005, pp. 4–5. 1888 TF1-267,Transcript 27 July 2005, p. 5. 1889 TF1-267,Transcript 27 July 2005, pp. 12–13. 1890 TF1-267,Transcript 27 July 2005, pp. 16–17. 1891 TF1-267,Transcript 27 July 2005, p. 5. 1892 TF1-267,Transcript 27 July 2005, p. 6. 1478 part iv particularly painful. She stated, “it seem[ed] as though all my guts were coming out.”1893 When the rebels left, the witness tried to get up but she fell back down again as she was so weak.1894 The Trial Chamber is satisfĳied on the basis of this evidence that the actus reus and mens rea of rape are proven. 1036. The witness testifĳied 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.1895 The witness’s daughter told her that “they” stufffed 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.1896 1037. The Trial Chamber notes that in her evidence-in-chief, the witness refers to her daughter alternately as her “sibling,” “daughter” and “lady.”1897 On cross- examination the witness adopted prior statements which use the term “daughter.”1898 The Trial Chamber notes that the witness testifĳied in Krio which was translated into English. The Chamber is satisfĳied 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 fĳinds 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 fĳinds the evidence to be credible and is satisfĳied on the basis of this evidence that the actus reus and mens rea of rape are satisfĳied. 1038. The evidence of Prosecution witnesses TF1-269 and TF1-267 is supported generally by that of Prosecution witness TF1-033 who testifĳied to being with AFRC troops at Rosos during the rainy season in 1998.1899 He testifĳied that rape was widespread throughout the time he was in captivity with the AFRC troops.1900 1039. Prosecution witness, George Johnson aka ‘Junior Lion,’ testifĳied 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 testifĳied that “jungle justice” included a prohibition against rape during operations. Punishment for breaching “jungle justice” included public flogging or death.1901 The Trial Chamber fĳinds that the mere

1893 TF1-267,Transcript 27 July 2005, p. 7. 1894 TF1-267, Transcript 27 July 2005, pp. 4–7, 10, 12–13,16–17. 1895 TF1-267, Transcript 27 July 2005, pp. 20–22. 1896 TF1-267, Transcript 27 July 2005, pp. 9–10, 20–22. 1897 TF1-267, Transcript 27 July 2005, p. 9. 1898 TF1-267, Transcript 27 July 2005, p. 29. 1899 TF1-033, Transcript 11 July 2005, p. 22. 1900 TF1-033, Transcript 12 July 2005, p. 9. 1901 George Johnson, Transcript 15 September 2005, pp. 48–49, 78. judgments 1479 prohibition of rape does not create any doubt as to whether the incidents of rape testifĳied 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 testifĳied that he went to Rosos with the AFRC and stayed there for about three or four months.1902 On cross-examination, the witness testifĳied that he did not see or hear about any rapes of female civilians at Rosos.1903 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 fĳinds 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 satisfĳied 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.1904 1043. In arriving at its factual fĳindings 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.1905 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.1906 1045. Witness TF1-334 testifĳied 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.1907 He testifĳied that the most beautiful ones were brought to

1902 DBK-113, Transcript 13 October 2006, p. 46. 1903 DBK-113, Transcript 13 October 2006, p. 78. 1904 Indictment, para. 56. 1905 Prosecution Final Brief, paras. 1622, 1628, 1635. 1906 Prosecution Final Brief, para. 1672. 1907 TF1-334, Transcript 14 June 2005, p. 25. 1480 part iv the senior commanders, including ‘Gullit,’ ‘Bazzy’ and ‘55.’1908 Witness TF1-334 saw ‘Gullit’ with a girl who told the witness that she was in Form Two;1909 that is, approximately 12 years old.1910 The witness did not see ‘Gullit’ abduct the girl.1911 The girls with ‘55’ and ‘Bazzy’ were also very young school girls.1912 The girl with Bazzy was approximately 12–15 years old.1913 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.1914 The Trial Chamber has previously considered general issues of credibility with regards to witness TF1-334 and fĳinds the evidence given by him with regards to rapes at the State House to be reliable. However, the Trial Chamber fĳinds this evidence insufffĳicient 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 testifĳied that on 8 January 1999,1915 he was captured by a group of rebels and soldiers.1916 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.1917 The rebels and soldiers took the witness to State House where he was detained for four nights in a kitchen on the ground level.1918 Through the kitchen window, the witness testi- fĳied that he could see women and girls being raped1919 by “Gullit’s boys” every night in the compound.1920 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.”)1921 1047. The witness testifĳied that he saw ‘Gullit’ twice at the State House.1922 The rebels called him “Honorable Gullit” and he was “commanding his boys.”1923 When ECOMOG forces approached the State House, ‘Gullit’ ordered the rebels to leave and left together with them.1924

1908 TF1-334, Transcript 14 June 2005, p. 26; Transcript 15 June 2005, p. 3. 1909 TF1-334, Transcript 15 June 2005, p. 3. 1910 TF1-334, Transcript 20 June 2005, p. 3. 1911 TF1-334, Transcript 20 June 2005, p. 4–5. 1912 TF1-334, Transcript 15 June 2005, pp. 4–5. 1913 TF1-334, Transcript 22 June 2005, p. 10. 1914 TF1-334, Transcript 15 June 2005, pp. 3–5; Transcript 22 June 2005, p. 6. 1915 TF1-024, Transcript 7 March 2005, pp. 43, 53, 62–63. 1916 TF1-024, Transcript 7 March 2005, p. 44. 1917 TF1-024, Transcript 7 March 2005, pp. 44, 49. 1918 TF1-024, Transcript 7 March 2005, pp. 70–72. 1919 TF1-024, Transcript 7 March 2005, pp. 72–75. 1920 TF1-024, Transcript 7 March 2005, pp. 44, 46, 49, 76. 1921 TF1-024, Transcript 7 March 2005, p. 49. 1922 TF1-024, Transcript 7 March 2005, pp. 45, 51–52. 1923 TF1-024, Transcript 7 March 2005, p. 45. 1924 TF1-024, Transcript 7 March 2005, pp. 51–52. judgments 1481

1048. The Trial Chamber notes that on cross-examination, the witness testifĳied that the girls who were raped were given 5000 leones, but that this was not pay.1925 The Trial Chamber fĳinds 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 satisfĳied that theactus reus and mens rea elements of rape are satisfĳied 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 testifĳied 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.”1926 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 testifĳied that they were not aware of any rapes occurring at State House in early January, 1999. 1051. Prosecution witness TF1-033 testifĳied that he was at State House with the AFRC troops on 6 January 19991927 and that he did not witness any rapes while he was there.1928 1052. Defence witness DBK-012, an ex-SLA who was a member of the AFRC during the war, similarly testifĳied that he did not see or hear of any raping going on at State House during the invasion of Freetown in January 1999.1929 He was neither able to confĳirm or deny that young girls were brought to State House by the AFRC to be raped.1930 1053. Witness DBK-126 testifĳied 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 testifĳied that ‘Bravo’s’ boss was Junior Johnson also known as Junior Lion.1931 The witness testifĳied that she was with the troops when the AFRC invaded Freetown. In Freetown Junior Lion made the

1925 TF1-024, Transcript 7 March 2005, p. 75. 1926 Gibril Massaquoi, Transcript 10 October 2005, pp. 10–11. 1927 TF1-033, Transcript 11 July 2005, p. 61. 1928 TF1-033, Transcript 11 July 2005, p. 65; 12 January 2005, p. 20. 1929 DBK-012, Transcript 9 October 2006, p. 46. 1930 DBK-012, Transcript 9 October 2006, p. 49. 1931 DBK-126, Transcript 11 October 2006, pp. 45–47. 1482 part iv 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 testifĳied that ‘FAT Sesay’ was in charge of the State House. She testifĳied that the Accused Kamara was not at State House during this period and that she did not see the soldiers rape anyone.1932 On cross-examination, however, the witness admitted that she had brought food to the Accused Kamara at the State House.1933 1054. The Prosecution notes that this witness has already pleaded guilty to contempt of Court for attempting to intimidate Prosecution witnesses.1934 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 affforded to this aspect of their testimony. (ii) PWD 1056. Prosecution witness TF1-153 testifĳied that ‘Gullit’ called him to the AFRC Headquarters at PWD during the time of the AFRC invasion. The witness testifĳied that he saw young civilian women at the PWD several times. The witness testifĳied 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.1935 1057. Witness TF1-153 also testifĳied that around this same time, ‘Gullit’ called him and told him he “had strangers” for him at PWD.1936 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 sufffer.”1937 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.1938 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.

1932 DBK-126, Transcript 12 October 2006, p. 62. 1933 DBK-126, Transcript 25 October 2006, p. 56. 1934 Prosecution Final Brief, para. 1575(o). 1935 TF1-153, 23 September 2005, pp. 6–11. 1936 TF1-153, 23 September 2005, p. 12. 1937 TF1-153, 23 September 2005, pp. 12–14. 1938 Brima Final Brief, para. 191. judgments 1483

1059. The evidence of witness TF1-153 is generally supported by Prosecution witness TF1-334 who testifĳied that roughly three weeks after the 6 January 1999 invasion of Freetown, Brima, Kamara and Kanu went to PWD Junction1939 to call for reinforcements from the RUF.1940 Around that time, Brima ordered the “troops” to abduct civilians in order to attract the attention of the international community.1941 Kamara and Kanu were present also.1942 Civilians, including a number of young girls were then abducted by the rebels and the commanders1943 from Freetown and brought to the headquarters at PWD.1944 1060. The Trial Chamber fĳinds 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 insufffĳicient 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 testifĳied 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 1999.1945 The Trial Chamber makes no fĳindings 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 testifĳied 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.1946 1063. The evidence of witness TF1-083 is generally supported by that of Prosecution witness TF1-033 who testifĳied 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 “fĳighters” under the command of ‘Gullit.’ The witness testifĳied that ‘Gullit’ ordered his men to commit atrocities as they were retreating and that women and girls were raped by the fĳighters.1947

1939 The Witness marked “PWD” as location #6 on a map of Freetown, Exhibit P18. 1940 TF1-334, Transcript 14 June 2005, p. 55. 1941 TF1-334, 14 June 2005, pp. 62, 118–119. 1942 TF1-334, 14 June 2005, p. 63. 1943 TF1-334, 14 June 2005, p. 118. 1944 TF1-334, 14 June 2005, pp. 64, 120. 1945 TF1-104, Transcript 30 June 2005, pp. 14–16, 22, 39–40. 1946 TF1-083, Transcript 8 April 2005, pp. 47–50, 52. 1947 TF1-033, Transcript 11 July 2005, pp. 65–66. 1484 part iv

1064. The Trial Chamber has carefully considered the objections of the Defence with regards to the credibility of witness TF1-033.1948 The Trial Chamber has previously considered the credibility of witness TF1-033 in general terms.1949 1065. Defence witness DAB-100 testifĳied 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 specifĳic incidents were elaborated by the witness. 1066. By contrast, Defence witness DBK-012 testifĳied 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.1950 The Trial Chamber fĳinds 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 testifĳied that he was taken with the AFRC to Freetown during the January 1999 invasion. He testifĳied that during the journey from Benguema to Freetown he did not see any SLA soldiers carrying out any rapes.1951 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 satisfĳied 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 duplicity1952 and as discussed, supra, in Chapter IX, Applicable Law, the Trial Chamber has dismissed Count 8 for redundancy.1953 As additionally discussed, supra, in Chapter IX, Applicable Law, the Trial Chamber is satisfĳied that the acts of rape and sexual

1948 Kanu Final Brief, para. 140; Brima Defence Final Brief, para. 34, 189. 1949 Role of Accused, paras. 364–367. 1950 DBK-012, Transcript 6 October 2006, p. 29. 1951 DSK-113, Transcript 12 October 2006, pp. 108–111. 1952 Defects in the Indictment, para. 92 et seq. 1953 Applicable Law, para. 697. judgments 1485 slavery are encompassed by the defĳinition of outrages on personal dignity and will consider evidence to this efffect presently. 1070. In coming to its fĳindings in relation to Count 9, the Trial Chamber relies on the fĳindings made in relation to Count 6, supra, as well as its fĳindings on the chapeau elements of war crimes.1954

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.1955 1073. The Prosecution in its Final Brief stated that it is the condition of being enslaved that gives rise to sexual slavery.1956 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.1957 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.1958 1075. Insofar as the Defence challenge the testimony of witnesses with regard to specifĳic 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,

1954 General Requirements of Articles 2, 3 and 4 of the Statute, paras. 249–254. 1955 Prosecution Final Brief, para. 1005. 1956 Prosecution Final Brief, para. 1000. 1957 Prosecution Final Brief, para. 1001. 1958 Kanu Final Brief, para. 58. 1486 part iv 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 fĳirst examine this evidence on a witness by witness basis. The Trial Chamber will then make fĳindings on the whole of the evidence by District as set out in the Indictment. (a) Prosecution Witness TF1-094 1078. Prosecution witness TF1-094 testifĳied 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.”1959 The witness, her parents and other family members fled to the bush but they were captured. The “rebels and SLAs” killed her parents1960 and “one of them” threatened to kill the witness as well.1961 An “SLA,” whom the witness described as wearing combat, and to whom she referred as ‘Andrew’ intervened and said that he would save her.1962 On cross-examination the witness clarifĳied 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.”1963 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 menstru- ating. The Trial Chamber observes that a child in Class Two is approximately 12 years old. The witness testifĳied that she believed that if she had refused to have sex with ‘Andrew,’ “they” would have killed her.1964 The Trial Chamber fĳinds that the environment of violence and the murder of both the witness’s parents substanti- ates this belief. 1080. The witness testifĳied 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.”1965 The witness testifĳied that the “boss” in Yamadugu was a certain ‘Ojagu’ who was an

1959 TF1-094, Transcript 13 July 2005, pp. 25, 47. 1960 TF1-094, Transcript 13 July 2005, pp. 26–27. 1961 TF1-094, Transcript 14 July 2005, pp. 37–38. 1962 TF1-094, Transcript 13 July 2004, p. 28, Transcript 14 July 2005, p. 37. 1963 TF1-094, Transcript 14 July 2005, pp. 37–38. 1964 TF1-094, Transcript 13 July 2005, pp. 28–29, 49. 1965 TF1-094, Transcript 13 July 2005, pp. 29, 50; Transcript 14 July 2005, p. 38. judgments 1487

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.1966 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 specifĳically rebut this statement, but clarifĳied that she was pregnant at the time and ‘Andrew’ had asked her not to abort the pregnancy.1967 The Prosecution asserts, and the Trial Chamber accepts, that this shows that at the time, she was not legally married to him. The witness testifĳied in cross- examination that Andrew used to care for her.1968 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.1969 The Trial Chamber notes the environment of violence and coercion in which the events testifĳied to by the witness took place and it is satisfĳied that any benefĳit received by the witness is relative only and in no way diminishes the seriousness of the acts committed against her. 1082. Witness TF1-094 testifĳied 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 testifĳied that “55” was at Rosos and that there were many civilians at Rosos including hundreds of women.1970 1083. After Rosos, the witness was taken with the troops to Kamaranka; Kamalo, Bombali District; and then to Waterloo, Western Area. The witness testifĳied 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.1971 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 1999.1972 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

1966 TF1-094, Transcript 13 July 2005, pp. 29, 50; Transcript 14 July 2005, p. 38. 1967 TF1-094, Transcript 14 July 2005, p. 38. 1968 TF1-094, Transcript 14 July 2005, p. 38. 1969 Prosecution Final Brief, paras. 1894–1895. 1970 TF1-094, Transcript 13 July 2005, pp. 34, 36–39, 53, 55. 1971 TF1-094, Transcript 13 July 2005, pp. 41, 55–57. 1972 TF1-094, Transcript 13 July 2005, pp. 39–43. 1488 part iv 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.1973 (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 testifĳied 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.1974 The witness testifĳied that he took her as his “wife” by force. He abducted her in Yuromia Town, near Foday Street.1975 1085. The witness testifĳied 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 testifĳied 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.’1976 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.1977 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.1978 The Trial Chamber agrees with this submission and makes no further fĳindings on the basis of this evidence. (c) Prosecution Witness TF1-085 1087. Prosecution witness TF1-085 testifĳied 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 testifĳied 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

1973 TF1-094, Transcript 13 July 2005, pp. 45–46. 1974 DAB-156, Transcript 29 September 2006, pp. 39–40, 43. 1975 DAB-156, Transcript 29 September 2006, pp. 77–78. 1976 DAB-156, Transcript 29 September 2006, pp. 39–40, 42–49. 1977 DAB-156, Transcript 29 September 2006, p. 5. 1978 Prosecution Final Brief, para. 1805. judgments 1489 inconsistent on the exact date, stating alternatively that it was the 5th, the 6th and “Thursday.”1979 The Trial Chamber fĳinds 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 testifĳied that she was approximately thirteen at the time.1980 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,1981 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 offf her mother’s hands.1982 The rebels gave her a load to carry and took her to Allen Town.1983 1089. The witness testifĳied 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.1984 On cross-examination, the witness testifĳied that he was “huge,” “tall,” and had body guards.1985 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.1986 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.1987 After ‘Colonel Z’ raped the witness, he told her she was his “wife.”1988 1091. Witness TF1-085 was taken by the rebels from Allen Town to Waterloo which had been captured.1989 The witness testifĳied that a person she referred to as

1979 TF1-085, Transcript 6 April 2005, pp. 61, 74, 116. 1980 TF1-085, Transcript 6 April 2005, pp. 61; Transcript 7 April 2005, pp. 124–125. 1981 Name given in closed session, TF1-085, Transcript 6 April 2005p. 11–12. 1982 TF1-085, Transcript 7 April 2005, pp. 7–14. 1983 TF1-085, Transcript 7 April 2005, pp. 15–17. 1984 TF1-085, Transcript 7 April 2005, pp. 16–17, 90–91. 1985 TF1-085, Transcript 7 April 2005, pp. 60, 67, 69. 1986 Kanu Final Brief, paras. 172–174. 1987 TF1-085, Transcript 7 April 2005, pp. 17–20. 1988 TF1-085, Transcript 7 April 2005, p. 21. 1989 TF1-085, Transcript 7 April 2005, p. 21. 1490 part iv

‘Five-Five’ was in command in Allen Town1990 and that in a village on the way to Waterloo, he ordered that the witness be beaten for cooking and making smoke.1991 As discussed, supra, the Trial Chamber makes no fĳindings 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.1992 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.1993 The witness became pregnant and miscarried twice as a result of the rapes.1994 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.”1995 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.1996 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 fĳinds 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.1997 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.1998 1094. ‘Colonel Z’ held the witness in Masiaka against her will.1999 The witness begged ‘Colonel Z’ to let her return to Freetown. The witness testifĳied 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.2000 On cross-examination, the witness stated that she carried the pistol with her.2001

1990 TF1-085, Transcript 7 April 2005, p. 18. 1991 TF1-085, Transcript 7 April 2005, pp. 27–28, 71. 1992 TF1-085, Transcript 7 April 2005, p. 30. 1993 TF1-085, Transcript 7 April 2005, pp. 35–36. 1994 TF1-085, Transcript 7 April 2005, pp. 36–37. 1995 TF1-085, Transcript 7 April 2005, p. 37. 1996 Prosecution Final Brief, para. 1908. 1997 TF1-085, Transcript 7 April 2005, pp. 33, 89, 96. 1998 TF1-085, Transcript 7 April 2005, p. 37. 1999 TF1-085, Transcript 7 April 2005, p. 36. 2000 TF1-085, Transcript 7 April 2005, pp. 34–35. 2001 TF1-085, Transcript 7 April 2005, p. 112. judgments 1491

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.2002 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.2003 The witness testifĳied that ‘Issa’ went from Masiaka to Lunsar and that he was in charge together with the other rebels.2004 ‘Daramy’ and ‘Gold Teeth’ were in Lunsar.2005 They then travelled to Krubola Hill, Port Loko District where the witness and other civilians were trained to fĳight. They were trained on how to cock and fĳire a gun, how to evade enemies and how to attack.2006 After the training, the witness and the other trained civilians were sent to fĳight in Kono. Some of the trained civilians were killed by ECOMOG during the attack.2007 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 fĳindings 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.2008 The Trial Chamber makes no fĳindings 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 testifĳied 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 afffĳiliated. However, the witness’s description of her abductors as “rebels”; and the route taken by the persons

2002 TF1-085, Transcript 7 April 2005, pp. 43–44, 121. 2003 TF1-085, Transcript 7 April 2005, p. 46. 2004 TF1-085, Transcript 7 April 2005, p. 46. 2005 TF1-085, Transcript 7 April 2005, p. 86. 2006 TF1-085, Transcript 7 April 2005, p. 49. 2007 TF1-085, Transcript 7 April 2005, p. 50. 2008 TF1-085, Transcript 7 April 2005, pp. 51–52, 119–120. 1492 part iv 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 fĳinding 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.2009 The Trial Chamber found witness TF1-085 consistent and fĳirm 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.2010 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.2011 1102. In making its fĳindings 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 testifĳied 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.2012 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.”2013 This was an open practice. Witness TF1-334, “Commander A” and other soldiers all “had sexual intercourse” with captured women.2014 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.2015

2009 Kanu Final Brief, paras. 172–174. 2010 Indictment, para. 52. 2011 Rule 98 Decision, para. 161. 2012 TF1-334, Transcript 20 May 2005, pp. 4–5. 2013 TF1-334, Transcript 20 May 2005, pp. 4–6. 2014 TF1-334, Transcript 20 May 2005, p. 7. 2015 Prosecution Final Brief, para. 1314. judgments 1493

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 satisfĳied 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 satisfĳied on the basis of this evidence. 1106. The evidence of witness TF1-334 is generally supported by that of witness DAB-101 who testifĳied 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 testifĳied that the nieces advised him to accept the offfer 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.2016 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 testifĳied 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 fĳind food. In Mortema, the witness did not hear about any rapes. He also never heard the name of the Accused Brima.2017 1108. The evidence of witness TF1-334 is also generally supported by that of witness DAB-125 who testifĳied that around Wordu Town, if “they” saw a young girl they would hold and turn her into their wife.2018 (i) Findings 1109. By virtue of the foregoing the Trial Chamber is satisfĳied that the elements of sexual slavery are established in relation to Kono District.

2016 DAB-101, Transcript 12 September 2006 pp. 81–88. 2017 DAB-101, Transcript 12 September 2006, pp. 98–99. 2018 DAB-125, Transcript 13 September 2006, p. 54. 1494 part iv

(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.2019 1111. The Prosecution has conceded that it has not led evidence in respect of Heremakono.2020 1112. In making its fĳindings 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 testifĳied that in August of 1998 she was abducted by a certain ‘Andrew’ from her village, Bambukura, Koinadugu District. The Trial Chamber is satisfĳied 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 testifĳied that after Andrew abducted her, he repeatedly raped her. The witness became pregnant within the fĳirst month of being with Andrew. She testifĳied 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 fĳive 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, satisfĳies the actus reus and mens rea elements of the crime of sexual slavery. 1115. Prosecution witness TF1-133 testifĳied 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.

2019 Indictment, para. 53. 2020 Rule 98 Decision, para. 161. judgments 1495

1116. The witness testifĳied 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.2021 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 testifĳied 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.2022 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.’2023 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.2024 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.2025 The witness was led away by a rebel to be killed, however, ‘Rambo’ intervened.2026 ‘Rambo’ and ‘Pa Mani’ punished ‘Mohammed the Killer’ by having him beaten.2027 ‘Cobra’ said “You have brought this woman for me. If she says she doesn’t love me, leave her alone.”2028 The witness was treated for her injuries. For the eight days she was in Woronbiai, the witness lived with ‘Cobra.’2029 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.2030 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

2021 TF1-133, Transcript 7 July 2005, pp. 80–85. 2022 TF1-133, Transcript 7 July 2005, pp. 85–86, 113, 118. 2023 TF1-133, Transcript 7 July 2005, pp. 86–87. 2024 TF1-133, Transcript 7 July 2005, p. 88. 2025 TF1-133, Transcript 7 July 2005, pp. 89–90. 2026 TF1-133, Transcript 7 July 2005, pp. 88, 90. 2027 TF1-133, Transcript 7 July 2005, p. 90. 2028 TF1-133, Transcript 7 July 2005, p. 90. 2029 TF1-133, Transcript 7 July 2005, p. 92. 2030 TF1-133, Transcript 7 July 2005, pp. 90–92. 1496 part iv

Woronbiai, Kono District.2031 The Trial Chamber fĳinds that this is a mistaken assertion. Witness TF1-133 clearly testifĳied 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 testifĳied that immediately prior to the attack on Kumala, Yifĳin had been attacked.2032 The Trial Chamber has no doubt that the proceeding events the witness describes took place in Koinadugu District. 1120. Witness TF1-133 testifĳied 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 “fĳighter” 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.2033 The Trial Chamber is satisfĳied 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 testifĳied 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 testifĳied 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.2034 On cross-examination, the witness testifĳied 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

2031 Prosecution Final Brief, paras. 1317–1318, 1889. 2032 TF1-133, Transcript 7 July 2005, pp. 81–82. 2033 TF1-133, Transcript 7 July 2005, pp. 93–95, 118 2034 TF1-133, Transcript 7 July 2005, pp. 98–102. judgments 1497 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.2035 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 afffect the powers of the men over their abducted ‘wives,’ or affford them any liberty to leave or refuse to engage in acts of a sexual nature with their so called husbands.2036 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.2037 1126. The Trial Chamber is satisfĳied 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.2038 1128. In addition to these fĳindings, the Trial Chamber also relies upon the evidence of witness TF1-209 that when she and other captured civilians were brought

2035 TF1-133, Transcript 7 July 2005, pp. 102–106. 2036 Prosecution Final Brief, para. 1891. 2037 Prosecution Final Brief, paras. 1319, 1890, 1897. 2038 Factual Findings, Outrages on Personal Dignity, paras. 989–1011, supra. 1498 part iv to Koinadugu Town, they were taken to the “MP’s” offfĳice where their names were recorded by a person to whom the witness referred as ‘Mongo.’ The witness testi- fĳied 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.2039 1129. The witness testifĳied 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 testifĳied that he turned her into his “wife” which she explained meant that he would have sex with the witness whenever he felt like it.2040 The witness also testifĳied 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.2041 1130. The Trial Chamber is satisfĳied 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 satisfĳies 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.2042 The witness also testi- fĳied that he took her as his “wife” by force and that he abducted her in Yuromia Town, near Foday Street.2043 1132. Witness DAB-079 testifĳied 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, Yifĳin, Geberefe and other locations.2044

2039 TF1-209, Transcript 7 July 2006, pp. 37–38. 2040 TF1-209, Transcript 7 July 2006, p. 38. 2041 TF1-209, Transcript 7 July 2006, p. 74. 2042 Factual Findings, Rape, para. 986. 2043 DAB-156, Transcript 29 September 2006, pp. 77–78. 2044 DAB-079, Transcript 28 July 2006, pp. 9–10,13–14, 16–17, 27, 34–36, 39–42. judgments 1499

(i) Findings 1133. By virtue of the foregoing the Trial Chamber is satisfĳied 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.2045 1135. The Prosecution has conceded that it has not led evidence in respect of Mandaha.2046 1136. In coming to its fĳindings 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 testifĳied that he and other “soldiers” under the command of “Woyoh”2047 captured approximately 35 civilian women during the attack on Karina in June of 1998.2048 The women were initially stripped naked but were later permitted to dress.2049 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 Stafff.2050 ‘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.2051 The women were “wives to the soldiers”2052 and they remained with their “husbands” until the soldiers invaded Freetown.2053 1138. Witness TF1-334 testifĳied 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.2054 ‘Five-Five’ was in charge of overseeing that the captured women were trained for combat.2055 ‘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 afffairs, including

2045 Indictment, para. 54. 2046 Rule 98 Decision, para. 161. 2047 TF1-334, Transcript 23 May 2005, p. 72. 2048 TF1-334, Transcript 23 May 2005, pp. 63, 72. 2049 TF1-334, Transcript 23 May 2005, pp. 72–73. 2050 TF1-334, Transcript 23 May 2005, p. 73. 2051 TF1-334, Transcript 23 May 2005, pp. 76–77. 2052 TF1-334, Transcript 23 May 2005, p. 77. 2053 TF1-334, Transcript 24 May 2005, p. 61. 2054 TF1-334, Transcript 23 May 2005, p. 103. 2055 TF1-334, Transcript 24 May 2005, pp. 23–24, 60. 1500 part iv pregnancy, birth and sickness.2056 ‘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.2057 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.2058 In one instance, witness TF1-334 observed a Stafff Sergeant named “Junior” aka “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.2059 1139. The Trial Chamber considers the evidence of Prosecution witness TF1-334 together with that of Prosecution witness TF1-033 who testifĳied to having been taken along with AFRC troops to Rosos during the rainy season in 1998.2060 He testi- fĳied 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 testifĳied that according to the “jungle justice” rules at that time, any fĳighter who raped another fĳighter’s abducted and forcefully married wife would be put to death. The witness specifĳically recalled an incident in which Alhaji Kamanda alias ‘Gunboot’ killed an AFRC fĳighter for raping another fĳighter’s forcefully abducted and married wife.2061 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 testifĳied that during the period of her sexual slavery, she was brought by the troops to Rosos.2062 1141. The Trial Chamber is satisfĳied 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

2056 TF1-334, Transcript 24 May 2005, p. 62. 2057 TF1-334, Transcript 24 May 2005, pp. 65–67. 2058 TF1-334, Transcript 24 May 2005, pp. 63–64. 2059 TF1-334, Transcript 24 May 2005, pp. 67–69. See discussion on credibility of this witness: Role of Accused, paras. 364–367. 2060 TF1-033, Transcript 11 July 2005, p. 22. 2061 TF1-033, Transcript 12 July 2005, p. 9. See discussion on credibility of this witness: Role of Accused, paras. 364–367. 2062 Factual Findings, Outrages on Personal Dignity, paras. 1078–1083. judgments 1501 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 fĳighters satisfĳies the actus reus and mens rea elements of the crime of sexual slavery. The Trial Chamber fĳinds further that this was a practice tolerated and regulated by the AFRC/RUF commanders. 1142. Prosecution witness TF1-334 also testifĳied 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.2063 1143. This evidence is generally supported by that of Defence witness DAB-095 who testifĳied 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.2064 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.2065 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.2066 (i) Findings 1145. By virtue of the foregoing, and without predetermining the individual responsibility of the three Accused, the Trial Chamber is satisfĳied 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.2067

2063 TF1-334, Transcript 13 June 2005, p. 27. 2064 DAB-095, Transcript 28 September 2006, pp. 49–54. 2065 Prosecution Final Brief, para. 1569. 2066 Prosecution Final Brief, para. 1573. 2067 Indictment para. 55. 1502 part iv

1147. No specifĳic concessions with regards to locations in Kailahun were found to have been made by the Prosecution at the Motion for Acquittal stage.2068 1148. In making its fĳindings in relation to Kailahun, the Trial Chamber has examined the evidence of Prosecution witnesses TF1-045 who testifĳied that during the ECOMOG intervention in Freetown in February 1998, he was in Kenema.2069 “Operation Pay Yourself” was declared by Sam Bockarie during which time civilians were abducted by the troops and taken to Daru.2070 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.2071 The Trial Chamber fĳinds on the basis of this evidence that the crime of sexual slavery is not proven as the evidence insufffĳiciently establishes the exercise of ownership by the perpetrator over the victim. (i) Findings 1149. By virtue of the foregoing the Trial Chamber is not satisfĳied 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.2072 1151. No specifĳic 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.2073 1152. In coming to its fĳindings 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 testifĳied that she was 162074 when the AFRC invaded Freetown in January 1999. She and her family tried to hide; however, she was captured by “rebels”2075 in Calaba Town on 22 January 1999.2076 She was taken

2068 Rule 98 Decision, para. 161. 2069 TF1-045, Transcript 19 July 2004, p. 78. 2070 TF1-045, Transcript 19 July 2004, pp. 79–83. 2071 TF1-045, Transcript 19 July 2004, pp. 84–86. 2072 Indictment, para. 56. 2073 Rule 98 Decision, para. 161. 2074 TF1-023, Transcript 9 March 2005, p. 32. 2075 TF1-023, Transcript 9 March 2005, p. 30. 2076 TF1-023, Transcript 9 March 2005, pp. 29–30; Transcript 07 November 2005, p. 12. judgments 1503 by the rebels fĳirst to Allen Town and then back to Calaba Town.2077 At Calaba town, she was given to an AFRC rebel,2078 hereinafter “the Captain” to be his “wife.”2079 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.2080 Instead, the Captain handed the witness over to a known AFRC Colonel,2081 hereinafter “Colonel X,” who took her as his “wife.”2082 There was no ceremony and he did not ask her consent.2083 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.2084 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.2085 At Benguema, the witness saw a man whom the soldiers2086 said was the senior commander, Brigadier ‘Gullit.’2087 At Four Mile the witness spent three weeks with Colonel X.2088 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.2089 The witness felt there was no way for her to escape from Colonel X.2090 She was unfamiliar with the area in which she was being held2091 and Colonel X sent an armed escort with her wherever she went.2092 She was afraid.2093 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.2094 The witness testifĳied that Colonel X told her that the senior commander at Four Mile was Brigadier ‘Bazzy.’2095 She would see Brigadier ‘Bazzy’ regularly when he would visit Colonel X.2096

2077 TF1-023, Transcript 9 March 2005, pp. 33, 37; Exhibit P-1.Name under seal. 2078 TF1-023, Transcript 10 March 2005, p. 25. 2079 TF1-023, Transcript 9 March 2005, p. 45. 2080 TF1-023, Transcript 9 March 2005, pp. 44–45. 2081 TF1-023, Transcript 10 March 2005, p. 25; name on exhibit P-2 [under seal]. 2082 TF1-023, Transcript 9 March 2005, p. 46. 2083 TF1-023, Transcript 9 March 2005, p. 46. 2084 TF1-023, Transcript 9 March 2005, pp. 46–47. 2085 All locations in Freetown/Western Area; TF1-023, Transcript 9 March 2005, pp. 48–49. 2086 TF1-023, Transcript 10 March 2005, p. 30. 2087 TF1-023, Transcript 10 March 2005, pp. 26–30. 2088 TF1-023, Transcript 9 March 2005, p. 49. 2089 TF1-023, Transcript 9 March 2005, pp. 49–51. 2090 TF1-023, Transcript 9 March 2005, p. 51. 2091 TF1-023, Transcript 9 March 2005, p. 51. 2092 TF1-023, Transcript 9 March 2005, pp. 51–53; Transcript 10 March 2005, p. 41. 2093 TF1-023, Transcript 9 March 2005, p. 53. 2094 TF1-023, Transcript 9 March 2005, pp. 51–53. 2095 TF1-023, Transcript 07 November 2005, pp. 27, 34. 2096 TF1-023, Transcript 10 March 2005, pp. 32–33; TF1-023, Transcript 07 November 2005, p. 27. 1504 part iv

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.2097 Some were given to lieutenants and some were given to ordinary soldiers.2098 The Prosecution asserts that this evidence was not challenged in cross-examination.2099

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 clarifĳied on cross-examination that she was not forced to do any work; she was not forced to cook or clean, for example.2100 The witness testifĳied that “people of lower ranks” respected her and deferentially called her “De Mammy” because of the Colonel.2101 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.2102 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,2103 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.2104 The witness travelled with Captain Y and the rebels to Mile 38, Port Loko District and then to Magbeni2105 where later, in August of 1999, the witness was able to escape. The witness was in the custody of Captain Y for approximately fĳive months. During this time, Colonel X did not return.2106 The witness saw ‘Bazzy’ several times in Mile 38.2107 ‘Bazzy’ was the overall commander in Magbeni.2108 In June or July, the witness also saw ‘Gullit’ in Magbeni.2109

2097 TF1-023, Transcript 9 March 2005, p. 54; Transcript 10 March 2005, p. 24. 2098 TF1-023, Transcript 9 March 2005, p. 55. 2099 Prosecution Final Brief, para. 1902. 2100 TF1-023, Transcript 9 March 2005, p. 57; Transcript 11 November 2005, p. 13. 2101 TF1-023, Transcript 9 March 2005, pp. 57–58. 2102 Prosecution Final Brief, para. 1900. 2103 TF1-023, Transcript 9 March 2005, p. 59; TF1-023, Transcript 10 March 2005, p. 26 name on exhibit P-3. 2104 TF1-023, Transcript 07 November 2005, p. 13. 2105 TF1-023, Transcript 10 March 2005, pp. 34–35. 2106 TF1-023, Transcript 10 March 2005, p. 24. 2107 TF1-023, Transcript 07 November 2005, pp. 33, 34. 2108 TF1-023, Transcript 07 November 2005, p. 34. 2109 TF1-023, Transcript 07 November 2005, pp. 14–16. judgments 1505

1158. The Prosecution submits that the evidence of the witness remained consistent and was unsuccessfully challenged in cross-examination.2110 1159. The Trial Chamber is satisfĳied 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, satisfĳies the actus reus and mens rea of the crime of sexual slavery. 1160. The Trial Chamber notes that the witness testifĳied that as the “wife” of Colonel X she was accorded certain benefĳits, 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 benefĳit 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 testifĳied that after the invasion of Freetown on 6 January 1999, a number of soldiers who did not “have women” before had new “wives.”2111 The soldiers gave the women food and clothing and the women cooked for the soldiers.2112 1162. Prosecution witness TF1-334 testifĳied that civilians abducted during the retreat from Freetown2113 were brought with the rebels to Benguema where the rebels were based for approximately one month.2114 There were approximately 300 civilians at Benguema – men, women and children.2115 During this time, the civilians that were abducted were “well-secured” meaning that they could not escape.2116 Most of the young girls who were abducted from Freetown became the “wives” of “various commanders” meaning that they had sex with the commanders.2117 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”;

2110 Prosecution Final Brief, para. 1901, 1899. 2111 TF1-334, Transcript 15 June 2005, pp. 5, 8. 2112 TF1-334, Transcript 15 June 2005, pp. 5–8. 2113 TF1-334, 14 June 2005, pp. 78, 80, 114–117. 2114 TF1-334, 14 June 2005, pp. 105, 114–117. 2115 Witness TF1-334, 14 June 2005, p. 116 2116 Witness TF1-334, 14 June 2005, p. 119. 2117 Witness TF1-334, 14 June 2005, pp. 120–121. 1506 part iv sometimes the witness would “see with my own eyes.”2118 The “wives” were also required to help with the cooking.2119 1164. Witness TF1-334 testifĳied 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.2120 The “women” were helping with the cooking and the “girls” were sleeping with the “commanders.” The “commanders” would call them their “wives.”2121 ‘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.’2122 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 satisfĳied 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 satisfĳied 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.2123 1167. Defence witness DBK-113 testifĳied that he was with the troops during the invasion of Freetown in January, 1999.2124 He testifĳied that after SAJ Musa died, he remained with the troops in Hastings for three to four days. From Hastings,

2118 Witness TF1-334, 14 June 2005, p. 121. 2119 Witness TF1-334, 14 June 2005, p. 121. 2120 Witness TF1-334, Transcript 15 June 2005, pp. 13–14. 2121 Witness TF1-334, Transcript 15 June 2005, p. 14. 2122 Witness TF1-334, Transcript 15 June 2005, p. 15–16. 2123 Factual Findings, Outrages on Personal Dignity, paras. 1078–1083. 2124 Witness DBK-113, Transcript 13 October 2006, p. 46. judgments 1507 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.2125 The Trial Chamber fĳinds 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 testifĳied that when the AFRC entered Freetown, all the soldiers were with their wives. Only the detainees did not have wives.2126 The Trial Chamber fĳinds that in the face of overwhelming evidence to the contrary this statement is not credible. 1169. Witness DBK-126 also testifĳied that she had a “boyfriend” who was a commander of a mortar platoon. The witness testifĳied 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”2127 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.2128 In Freetown, the witness was called a “rebel wife,” but she testifĳied 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 satisfĳied that her evidence shows theactus reus and mens rea of sexual slavery.2129 (i) Findings 1170. By virtue of the foregoing, and without predetermining the individual responsibility of the three Accused, the Trial Chamber is satisfĳied 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

2125 Witness DBK-113, Transcript 13 October 2006, pp. 38–40. 2126 Witness DBK-126, Transcript 12 October 2006, pp. 62–64. 2127 Witness DBK-126, Transcript 11 October 2006, pp. 45–47. 2128 Witness DBK-126, Transcript 12 October 2006, pp. 62–64. 2129 Witness DBK-126, Transcript 12 October 2006, pp. 80–81. 1508 part iv

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.2130 1172. No specifĳic concessions with regards to locations in Port Loko District were found to have been made by the Prosecution at the Motion for Acquittal stage.2131 1173. In coming to its fĳindings 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 testifĳied that during the dry season in early 1999, “rebels”2132 entered her village in Port Loko District.2133 The Trial Chamber notes that the witness testifĳied in chief that the time period was “early in 1999” and in the “dry season.”2134 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.2135 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 testifĳied that she does not know how old she was when she was captured.2136 The Trial Chamber accepts that the witness is innumerate and fĳinds that this does not undermine her credibility. 1176. The witness testifĳied 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 testifĳied 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.2137

2130 Indictment, para. 57. 2131 Rule 98 Decision, para. 161. 2132 Witness TF1-282, Transcript 13 April 2005, p. 7. 2133 Witness TF1-282, Transcript 13 April 2005, pp. 5–7, 28–30. 2134 Witness TF1-282, Transcript 13 April 2005, pp. 5, 7. 2135 Witness TF1-282, Transcript 13 April 2005, pp. 29, 30. 2136 Witness TF1-282, Transcript 13 April 2005, pp. 4, 27. 2137 Witness TF1-282, Transcript 13 April 2005, pp. 5–15; 20–21; Transcript 14 April 2005, pp. 4–5; 32–35. judgments 1509

1177. Witness TF1-282 testifĳied that she later heard ‘55’ giving orders to fĳire and to move to Sumbuya, although on cross-examination she admitted that she did not hear ‘55’ give these orders directly.2138 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,’2139 that ‘55’ was the “big man” in Sumbuya and gave orders to loot.2140 On cross-examination the witness stated that she only saw ‘55’ once, when he raped her, and could not describe him.2141 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.”2142 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.2143 The Trial Chamber fĳinds that the witness’s identifĳication evidence is therefore inconsistent and cannot be relied upon. The Trial Chamber makes no fĳindings 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 testifĳied that she said “yes” because saying no in the circumstances would make no diffference 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 testifĳied 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.’2144 The Trial Chamber agrees that such retroactive action does not diminish the seriousness of the acts.

2138 Witness TF1-282, Transcript 13 April 2005, p. 15; Transcript 14 April 2005, pp. 4–5 2139 Name given in closed session: Transcript 13 April 2005, p. 25. 2140 Witness TF1-282, Transcript 13 April 2005, pp. 20–21. 2141 Witness TF1-282, Transcript 13 April 2005, pp. 32–35. 2142 Witness TF1-282, Transcript 14 April 2005, pp. 3–5. 2143 Witness TF1-282, Transcript 14 April 2005, pp. 3–5. 2144 Prosecution Final Brief, para. 1910. 1510 part iv

1181. The witness testifĳied that the named rebel continued to rape her every- day.2145 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.2146 On cross examination, the witness stated that she did not know if she was with the rebels in Sumbuya during February.2147 1182. The Brima Defence asserts that the testimony of witness TF1-282 is not reliable as she testifĳied on cross that by giving evidence at the Special Court her lifestyle had changed for the better.2148 The Trial Chamber does not share this opinion. Any benefĳit 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 satisfĳied 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, satisfĳies 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,2149 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

2145 TF1-282, Transcript 13 April 2005, pp. 15–18; Transcript 14 April 2005, p. 39. 2146 TF1-282, Transcript 13 April 2005, pp. 18–19. 2147 TF1-282, Transcript 13 April 2005, p. 30. 2148 Brima Defence Final Brief, para. 188. 2149 Factual Findings, Outrages on Personal Dignity, paras. 1087–1099. judgments 1511 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 satisfĳied 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 satisfĳied that theactus reus and mens rea of the crime of sexual slavery are satisfĳied with regards to the evidence of witness TF1-085. 1186. The Trial Chamber also notes the evidence of Defence witness DAB-156 who testifĳied 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 testifĳied 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 testifĳied 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.’2150 The Trial Chamber is not satisfĳied on the basis of this evidence that sexual slavery is satisfĳied 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 benefĳit from this particular arrangement. However, the Trial Chamber is not willing to infer that this was also the case for other witnesses who have testifĳied to sexual slavery nor, in any event, that this relative benefĳit 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 satisfĳied 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 fĳindings with regards to Count 6 and the chapeau elements of war crimes, the Trial Chamber is satisfĳied 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.

2150 Witness DAB-156, Transcript 29 September 2006, pp. 39–40, 42–49. 1512 part iv

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”2151 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 1999.2152 1190. Specifĳically 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.2153 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 specifĳic 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.”2154 1193. In reaching the following fĳindings 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.2155 Following the coup, AFRC/RUF troops under the command of Sam Bockarie took over control of Kenema District.2156

2151 Indictment, para. 58. 2152 Indictment, paras. 59, 61–64. 2153 Indictment, para. 60. 2154 Indictment, para. 60. 2155 TF1-062, Transcript 27 June 2005, p. 6. 2156 TF1-062, Transcript 27 June 2005, pp. 9, 15, 42, 53; TF1-045, Transcript 19 July 2005, pp. 32, 79; George Johnson, Transcript 19 September 2005, p. 55; According to TF1-122 the Commander of the judgments 1513

(i) Kenema Town 1195. AFRC/RUF troops were stationed in Kenema Town between May 1997 and February 1998.2157 Witness TF1-122 testifĳied 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 diffferent 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.2158 If a person resisted, she or he would be beaten and confĳined. The witness testifĳied that this happened “continuously.”2159 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.2160 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.”2161 These individuals were initially detained at the AFRC Secretariat in Kenema Town.2162 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.2163 They were kept at the AFRC Secretariat building for three days.2164 After handing them over to the police,2165 AFRC/RUF troops rearrested them saying that they were to be taken to SOS East Brigade Headquarters.2166 The AFRC/ RUF troops beat and kicked B.S. Massaquoi.2167 Subsequently, B.S. Massaquoi, Andrew Quee and the four other individuals were all killed.2168

AFRC/RUF troops in Kenema Town was Secretary of State East, Eddy Kanneh. Sam Bockarie was in charge of the RUF. His sub-commanders were Gibril Massaquoi and Morris Kallon. Other sub- commanders were ‘Akim’ and Issa Sesay. 2157 TF1-122, Transcript 24 June 2005, p. 7. 2158 TF1-122, Transcript 24 June 2005, pp. 10–12. 2159 TF1-122, Transcript 24 June 2005, pp. 12. 2160 TF1-122, Transcript 24 June 2005, p. 13. 2161 TF1-122, Transcript 24 June 2005, pp. 35–37. 2162 TF1-122, Transcript 24 June 2005, p. 36. 2163 TF1-122, Transcript 24 June 2005, pp. 36–37. 2164 TF1-122, Transcript 24 June 2005, p. 38. 2165 TF1-122, Transcript 24 June 2005, pp. 41–42; Exhibit P-24, “Kenema Police Diary,” p. 112, serial no. 46 (dated 28 January 1998), p. 00008552. 2166 TF1-122, Transcript 24 June 2005, p. 44; Exhibit P-24, “Kenema Police Diary,” p. 155, serial no. 50 and p. 181, serial no. 78, and P. 182, serial no. 10, pp. 00008595, 00008620, 00008621. 2167 TF1-122, Transcript 24 June 2005, pp. 44–45. 2168 See Factual Findings, Unlawful Killings, paras. 832–833. 1514 part iv

(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 satisfĳied 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 fĳinds 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 offf limbs and carving ‘AFRC’ and ‘RUF’ on the bodies of the civilians.”2169 1199. No evidence of physical violence was led in respect of Wondedu. 1200. In reaching its factual fĳindings 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.2170 Documentary evidence corroborates the occurrence of physical violence, including mutilations, in Tombodu.2171 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.2172 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.2173 1203. ‘Savage’ then announced that he would cut offf the hands of the fourteen captives, including witness TF1-072.2174 The men were forced to lie on ground and

2169 Indictment, para. 59. 2170 TF1-334, Transcript 20 May 2005, pp. 6–7, 2171 Exhibit P-54, “Amnesty International ‘Sierra Leone 1998 – a year of atrocities against civilians’ ,” p. 15718, 15810. 2172 TF1-072, Transcript 1 July 2005, pp. 14–16. The Trial Chamber notes that the retaliation on the civilians for the killing of a soldier is corroborated by TF1-033: TF1-033, Transcript 11 July 2005, p. 12. 2173 TF1-072, Transcript 1 July 2005, pp. 15–16. 2174 TF1-072, 1 July 2005, p. 16. judgments 1515 were tied together. ‘Small Mosquito’ urinated on them. He then covered them with a mattress that he set on fĳire 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.2175 ‘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 terrifĳied that he defecated. His right hand was not entirely amputated, but permanently disfĳigured. The Trial Chamber was able to observe that the Witness’ fĳingers are mangled. He stated that he is unable to read or write as result of the assault.2176 The witness was not shaken on cross-examination with regard to the identity of the commander ‘Savage.’2177 1204. In about May 1998, Witness TF1-334 watched ‘Savage’ personally amputate the hands of about fĳifteen 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.2178 The witness tes- tifĳied 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.”2179 1205. Witnesses TF1-033 and DAB-098 also testifĳied that civilians were amputated by troops under the command of ‘Savage’ in Tombodu.2180 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 ‘Stafff Alhaji’ ordered that the witness’ hands and the hands of fĳive 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.”2181 (ii) Kaima/Kayima 1207. At an unspecifĳied 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.2182 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.2183 The witness described the people who

2175 TF1-072, 1 July 2005, p. 18. 2176 TF1-072, 1 July 2005, pp. 19, 26. 2177 TF1-072, 1 July 2005, pp. 22–38. 2178 TF1-344, Transcript 20 May 2005, pp. 8, 12–13. 2179 TF1-334, Transcript 20 May 2005, p. 13. 2180 TF1-033, Transcript 11 July 2005, pp. 11–12; DAB-098, Transcript 4 September 2006, pp. 22, 45. 2181 TF1-216, Transcript 27 June 2005, pp. 93–94. 2182 TF1-074, Transcript 5 July 2005, p. 14. 2183 TF1-074, Transcript 5 July 2005, pp. 14–15; Exhibit P-27, “Picture of Chest of Witness TF1-074 with markings ‘AFRC RUF.’ ” 1516 part iv captured him as belonging to the AFRC/RUF.2184 As the witness testifĳied 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 1998.2185 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.2186 While the witness may have been mistaken regarding the afffĳiliation of particular troops, the Trial Chamber notes that witness TF1-074 testifĳied consistently that both the AFRC and the RUF were present in Kayima. The witness testifĳied 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.2187 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.’2188 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.2189 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 sufffering from severe mutilations. Between 6 April and 4 May 1998 Connaught Hospital received 115 patients,2190 most of whom were severely mutilated. Most of them came from Kono.2191 Some had received some basic medical treatment from

2184 TF1-074, Transcript 5 July 2005, p. 11. 2185 TF1-074, Transcript 5 July 2005, p. 10. 2186 Brima Defence Final Brief, paras. 187, 282. See also cross-examination of witness: TF1-074, Transcript 5 July 2005, pp. 34–38. 2187 TF1-074, Transcript 5 July 2005, p. 11. 2188 DSK-103, 13 September 2006, pp. 27–31. 2189 Exhibit P-54, “Amnesty International ‘Sierra Leone 1998 – a year of atrocities against civilians’ ,” p. 15718, 15810. 2190 The patients were brought to Connaught Hospital because at that time there were no other functioning surgical/operating theatres in Sierra Leone. By May 1998 other hospitals started receiving patients in Makeni, Magburaka, and Kamakwie: see TF1-272, Transcript 4 July 2005, p. 42 [closed session]. Connaught Hospital is Sierra Leone’s only hospital with an orthopaedic surgeon. Exhibit P-26, “MSF 1998 Report: Atrocities against civilians in Sierra Leone,” p. 3787. 2191 Exhibit P-26, “MSF 1998 Report: Atrocities against civilians in Sierra Leone,” p. 3787. judgments 1517

ECOMOG just outside Koidu.2192 They were brought to the hospital in ECOMOG trucks.2193 1212. The majority of patients sufffered deep lacerations, broken limbs, fĳield amputations and amputations. A few sufffered gunshot wounds and the lips, ears and fĳingers of some had been cut.2194 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; fĳive men, in addition to having their arms amputated had a part of, one or both ears cut offf; 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 fĳingers missing as a result of cutlass attacks.2195 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, fĳingers, ears or lips. This number represented, however, only a fraction of the number of such victims, many of whom never reached medical help.2196 According to humanitarian agencies in Freetown, only about one in four victims of mutilations by rebel forces survived their injuries.2197 (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 satisfĳied 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 offf their limbs in Tombodu in Kono District, as charged under Counts 10 and 11. The Trial Chamber further fĳinds 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

2192 TF1-272, Transcript 4 July 2005, p. 35 [closed session]. 2193 TF1-272, Transcript 4 July 2005, p. 42 [closed session]. 2194 TF1-272, Transcript 4 July 2005, pp. 39–40 [closed session]. 2195 Exhibit P-26, “MSF 1998 Report: Atrocities against civilians in Sierra Leone,” p. 3789; see also Exhibit P-54, “Amnesty International ‘Sierra Leone 1998 – a year of atrocities against civilians’ ,” pp. 15807–15808. 2196 Exhibit P-54, “Amnesty International ‘Sierra Leone 1998 – a year of atrocities against civilians’ ,” p. 15808; Exhibit P-26, “MSF 1998 Report: Atrocities against civilians in Sierra Leone,” p. 3791. 2197 Exhibit P-54, “Amnesty International ‘Sierra Leone 1998 – a year of atrocities against civilians’ ,” p. 15808. 1518 part iv

(or Kontoba). The mutilations included cutting offf limbs and carving ‘AFRC’ on the chests and foreheads of the civilians.”2198 1215. No evidence of physical violence was adduced in respect of Konkoba.2199 1216. In reaching the following fĳindings 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), testifĳied 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 testifĳied that after the AFRC/RUF forces had successfully captured the town, they amputated the hands of an unknown number of civilians.2200 (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 satisfĳied 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 offf their limbs in Kabala in Koinadugu District. The Trial Chamber accordingly fĳinds 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 offf limbs.”2201 1220. No evidence of mutilations was led in respect of Lohondi, Malama, Mamaka.2202 1221. In arriving at the following fĳindings 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

2198 Indictment, para. 61. 2199 Rule 98 Decision, para. 186. 2200 TF1-199, Transcript 6 October 2005, pp. 81–83, 86–88, 91. 2201 Indictment, para. 62. 2202 Rule 98 Decision, para. 186. judgments 1519 the back of her neck in an attempt to kill her.2203 The Trial Chamber was able to observe a scar of about two inches on the neck of the Witness.2204 1223. The Trial Chamber however makes no fĳinding on this incident as the only act of mutilation particularised in the Indictment is “cutting offf limbs.”2205 1224. The Trial Chamber notes that a signifĳicant amount of evidence was led on mutilations in other locations in Bombali District, in particular in Karina.2206 No fĳindings 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 offf limbs.”2207 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.2208 Documentary evidence confĳirms 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.2209 While the Trial Chamber accepts this evidence as credible, given its general nature, the Trial Chamber relies on it to corroborate its fĳindings on the more specifĳic incidents described below. 1228. In arriving at the following fĳindings 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.

2203 TF1-269, Transcript 14 July 2005, pp. 41–42, 51. 2204 TF1-269, Transcript 14 July 2005, pp. 43. 2205 Indictment, para.62. 2206 TF1-058, Transcript 14 July 2005, pp. 83–86; TF1-199, Transcript 06 October 2005, p. 76; TF1-334, Transcript 23 May 2005, pp. 70–71; TF1-157, Transcript 22 July 2005, p. 75; TF1-184, Transcript 07 September 2005, p. 35; Exhibit P-54. 2207 Indictment, para. 63. 2208 TF1-157, Transcript 25 July 2005, pp. 18–20; TF1-084, Transcript 6 April 2005, pp. 43–44; TF1-033, Transcript 10 July 2005, p. 20, Transcript 12 July 2005, p. 60; TF1-104, Transcript 30 June 2005, pp. 5–9. 2209 Exhibit P-46, “Fifth Report of the Secretary-General on the United Nations Observer Mission in Sierra Leone,” p. 15658 (para. 23). 1520 part iv

(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.2210 Witness TF1-184 testifĳied 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).2211 Witness TF1-184 identifĳied ‘Five-Five’ as the Accused Kanu.2212 b. Kissy Old Road 1230. Witness TF1-334 testifĳied 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 fĳirst 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 diffference 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.2213 c. ‘Operation Cut Hand’ at PWD 1231. Witness TF1-153 testifĳied that while the headquarters was at PWD, a soldier came from Fourah Bay “with his head bust” reporting that the civilians there had been fĳighting the soldiers.2214 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 testifĳied that from this conversation he understood that the machetes from the warehouse had been used to amputate people.2215

2210 Factual Findings, Unlawful Killings, para. 919. 2211 TF1-184, Transcript 27 September 2005, pp. 72–74. 2212 TF1-184, Transcript 26 September 2005, p. 80. 2213 TF1-334, Transcript 14 June 2005, pp. 68–71. 2214 TF1-153, Transcript 23 September 2005, p. 17. 2215 TF1-153, Transcript 23 September 2005, p. 18. judgments 1521

(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 fĳindings on unlawful killings.2216 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 offf his hand with an axe.2217 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.2218 The witness described the rebels as being dressed in black T-shirts, some had soldier combats and tied muffflers with the American flag.2219 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.2220 Witness TF1-098’s cousin died as a result of the amputation.2221 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 offf 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 offf with two blows of an axe.2222 The hand of a man named Pa Sorie was also cut.2223 The rebels cut offf the fĳingers of a man named Mussa. The commander ordered the rebels to cut offf the entire hand and when Mussa begged for mercy, the rebels killed him.2224 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

2216 TF1-084, Transcript 6 April 2005, p. 38. 2217 TF1-084, Transcript 6 April 2005, pp. 40–42. 2218 TF1-098, Transcript 5 April 2005, p. 39. 2219 TF1-098, Transcript 5 April 2005, p. 39. 2220 TF1-098, Transcript 5 April 2005, pp. 40–42. 2221 TF1-098, Transcript 5 April 2005, pp. 42–43. 2222 TF1-083, Transcript 8 April 2005, pp. 62–67. 2223 TF1-083, Transcript 8 April 2005, p. 67. 2224 TF1-083, Transcript 8 April 2005, p. 68. 1522 part iv persons wearing SLA uniforms and one person wearing civilian clothes near Parsonage Street in Freetown.2225 A soldier named ‘Captain Two Hand’ ordered the soldiers to cut offf the tenant’s hands. A rebel in civilian clothes used an axe to cut offf 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.”2226 Soldiers then amputated witness TF1-278’s left hand. The witness testifĳied that his child shouted “Hey, soldier, don’t cut my father’s hand, please. He is working for us.”2227 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 offf your hand. Since you did not allow for peace we are saying good-bye to you.”2228 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.2229 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.2230 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.2231 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 fĳinding of physical violence on this evidence. However, the Trial Chamber considers this evidence to generally corroborate the fĳindings of physical violence made below in relation to Kissy Mental Home.

2225 TF1-278, Transcript 5 April 2005, p. 54. 2226 TF1-278, Transcript 6 April 2005, pp. 5–7. 2227 TF1-278, Transcript 6 April 2005, p. 8. 2228 TF1-278, Transcript 6 April 2005, pp. 8–9. 2229 TF1-334, Transcript 14 June 2005, p. 82. 2230 Factual Findings, Unlawful Killings, para. 931. 2231 TF1-334, Transcript 14 June 2005, p. 84. judgments 1523

1238. Witness George Johnson testifĳied 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 fĳighters, 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.2232 1239. Witness TF1-184 testifĳied 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 fĳingers that are pointing at us, we shall ensure that all their hands are amputated.”2233 When asked if anything occurred as a result of the Accused Brima’s words, the witness testifĳied 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.2234 The Trial Chamber is satisfĳied 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 testifĳied 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.2235 1241. George Johnson testifĳied that at Kissy Mental Home, a soldier named Kabila amputated the arms of a captured Nigerian ECOMOG soldier.2236 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.2237 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 testifĳied 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 offf the hand of one of the children, aged four or fĳive years,

2232 George Johnson, Transcript 16 September 2005, p. 53–54. 2233 TF1-184, Transcript 27 September 2005, p. 81. 2234 TF1-184, Transcript 27 September 2005, p. 81. 2235 TF1-184, Transcript 27 September 2005, p. 80. 2236 George Johnson, Transcript 16 September 2005, p. 54. 2237 George Johnson, Transcript 16 September 2005. pp. 54–55. 1524 part iv who had been hiding in the house. The witness was then abducted by the rebels.2238 The witness’ testimony regarding subsequent events has been considered in the Trial Chamber’s fĳindings on outrages on personal dignity.2239 (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 satisfĳied beyond reasonable doubt that between 6 January 1999 and 28 February 1999, members of the AFRC fĳighting forces mutilated at least 237 civilians and one soldier by cutting offf their limbs in various areas of Freetown and in Kissy and Wellington in the Western Area. The Trial Chamber accordingly fĳinds 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 fĳirst abducted, then trained in AFRC/RUF camps in various locations throughout the country, and thereafter used as fĳighters.” 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.”2240 1246. In addition to the legal submissions of the Defence which have been considered elsewhere in the Judgement,2241 the Defence argues that the evidence was inconclusive regarding the age of many of the alleged child soldiers.2242 Bearing this concern in mind, the Trial Chamber emphasizes that it has excluded all

2238 TF1-085, Transcript 7 April 2005, pp. 6–7. 2239 Factual Findings, Outrages on Personal Dignity, paras. 1087– 1099, infra. 2240 Prosecution Supplemental Pre-Trial Brief, paras. 182, 465, 748. 2241 Applicable Law, paras. 732. 2242 Kamara Defence Final Brief, para. 310. Kanu Defence Final Brief, para. 80. judgments 1525 evidence related to child soldiers where it was not clear that the evidence referred to soldiers under the age of 15. 1247. Finally, the Defence refers to several arguments made by the Defence Expert which will be addressed below.2243

2. The Expert Witnesses 1248. Both the Prosecution and the Defence introduced expert witness reports on Child Soldiers,2244 and the Prosecution expert testifĳied at trial.2245 The Prosecution expert report provides an overview on the widespread use of children under the age of 15 as combatants by the parties to the conflict in Sierra Leone during the period covered by the Special Court Statute.2246 The Trial Chamber cannot confĳirm the Prosecution Expert’s fĳigures regarding the number of child soldiers because some of her sources referred to child soldiers as individuals under the age of 18, rather than 15, and there is no other corroborating evidence on the issue.2247 Nevertheless, the Prosecution expert report emphasizes that the illegal recruitment and/or use of children as combatants was not an isolated, localised, or accidental phenomenon.2248 While “widespread or systematic use” of children is not a chapeau element for a fĳinding of liability under Article 4(C) of the Statute, that Trial Chamber fĳinds that the information may be useful in assessing whether a perpetrator “knew or should have known” that persons recruited were under the age of 15. 1249. With regards to the forces alleged to have been associated with the Accused in this case, the Prosecution Expert Report refers to the illegal conscription and use of children by AFRC Government forces during the AFRC government period,2249 and by armed forces during the January 1999 invasion and retreat from Freetown.2250 She also notes that the overthrow of the AFRC government brought negotiations for the release of child combatants between child protection

2243 Kamara Final Trial Brief, paras. 312–319. Kanu Final Defence Brief, paras. 75–80. 2244 Exhibit P-33, “Report on the Situation in Sierra Leone in Relation to Children with the Fighting Forces.” Exhibit D-37, Osman Gbla, “Research Report: The use of child soldiers in the Sierra Leone Conflict.” 2245 Witness TF1-296, Transcripts 4 and 5 October 2005. 2246 Exhibit P-33, “Report on the Situation in Sierra Leone in Relation to Children with the Fighting Forces.” 2247 Exhibit P-33, “Report on the Situation in Sierra Leone in Relation to Children with the Fighting Forces,” para. 9. 2248 Exhibit P-33, “Report on the Situation in Sierra Leone in Relation to Children with the Fighting Forces,” paras. 24, 28, 32–33. 2249 Exhibit P-33, “Report on the Situation in Sierra Leone in Relation to Children with the Fighting Forces,” paras. 21, 43. 2250 Exhibit P-33, “Report on the Situation in Sierra Leone in Relation to Children with the Fighting Forces,” paras. 32–34, 47. 1526 part iv organisations and the rebel government to a halt. While the expert does not specifĳically refer to the further illegal recruitment or use of children during 1998, she does say that during that year ECOMOG turned over child Prisoners of War (POWs) to UNICEF,2251 suggesting that these children had been associated with forces fĳighting the Kabbah government during this period. 1250. The Defence Expert Witness report afffĳirms the widespread recruitment and use of children as combatants by all the forces involved in the conflict, including by AFRC soldiers.2252 He attributes the problem to several phenomena: that in a “traditional African setting the concept of childhood is related to the ability to perform tasks not to age;2253 that the phenomenon was due, in part, to the partial disintegration of the state prior to the conflict;2254 that the use of children as combatants was a practice established in Sierra Leone in the decades preceding the conflict of the 1atter half of the 1990s;2255 that the Kabbah government’s encouragement of child soldier recruitment into the military influenced the practice of rebel groups;2256 and that all fĳighting factions resorted to the use of child soldiers.2257 Finally, the Defence Expert report states that many of the children that followed AFRC members after they were ousted from power in February 1998 did so voluntarily, and that they joined family members or other close associates out of fear of reprisals.2258 However, the Expert provided no research or evidence to substantiate this claim. 1251. The Trial Chamber stresses that both experts agree that persons under the age of 15 were used for military purposes by all factions, including the AFRC, during the conflict including the period 25 May 1997-mid 1999. As discussed in the Applicable law, the Trial Chamber rejects any defence based on cultural distinctions regarding the defĳinition of “childhood.”2259 The Trial Chamber infers from the Defence Expert’s argument that all factions to the conflict recruited and used

2251 Exhibit P-33, “Report on the Situation in Sierra Leone in Relation to Children with the Fighting Forces,” para. 27. 2252 Exhibit D-37, Osman Gbla, “Research Report: The use of child soldiers in the Sierra Leone Conflict,” paras. 1, 38, 40. 2253 Exhibit D-37, Osman Gbla, “Research Report: The use of child soldiers in the Sierra Leone Conflict,” para. 9. 2254 Exhibit D-37, Osman Gbla, “Research Report: The use of child soldiers in the Sierra Leone Conflict,” paras. 35–37, 43–44. 2255 Exhibit D-37, Osman Gbla, “Research Report: The use of child soldiers in the Sierra Leone Conflict,” paras. 35–37. 2256 Exhibit D-37, Osman Gbla, “Research Report: The use of child soldiers in the Sierra Leone Conflict,” para. 38. 2257 Exhibit D-37, Osman Gbla, “Research Report: The use of child soldiers in the Sierra Leone Conflict,” paras. 40, 53. 2258 Exhibit D-37, Osman Gbla, “Research Report: The use of child soldiers in the Sierra Leone Conflict,” paras. 51, 57. 2259 Applicable Law, para. 731. judgments 1527 child soldiers that he is suggesting a tu quoque defence. The Trial Chamber rejects such a defence and recalls that it has addressed the related Mistake of Law issue in the Applicable Law section of the Judgement. The Trial Chamber will not review evidence regarding the conditions of the Sierra Leonean State and army prior to 1997 as the issue has no bearing on the perpetration of international crimes by individuals within the state. Finally, it is not impossible that some persons under the age of 15 associated with the troops were family members and were present voluntarily. The Trial Chamber will address this particular defence claim in more detail below.

3. The Evidence of Former Child Soldiers 1252. The Trial Chamber fĳinds the testimonies of both witnesses TF1-157 and TF1-158 regarding their experiences as former child soldiers to be reliable and credible. 1253. TF1-157 was 20 years old when he testifĳied before the SCSL in 2005. As will be discussed in more detail below, the Trial Chamber is able to infer beyond a reasonable doubt that he was abducted between May and August of 1998, meaning that he was approximately thirteen years old at the time of the events he described.2260 The witness testifĳied that rebels and soldiers attacked Bonoya/ Bornoya village in Bombali District, his home village, on the Islamic New year, although he did not know the year.2261 He clarifĳied that among the attackers were former soldiers who had “turned into rebels.”2262 Among the attackers were individuals wearing combat fatigues, and others wearing civilian clothing.2263 During the attack, the witness watched the assailants commit a number of atrocities against his family members.2264 Among the assailants was a man named ‘Mohamed,’ who abducted the witness.2265 The attackers abducted at least fĳive other people from Bonoya/Bornoya the same day, at least three of whom were younger than the witness at the time.2266 The witness described having gone together with his captors through the villages of Kamagbo, Daraya, Mayogbo, Karina, Mabaka, Mandaha, Mateboi, Gbomsamba, Robat Mess (Camp Rosos).2267 While the Trial Chamber is unable to fĳind some of these locations on the maps at its disposal, it notes that these locations are discussed by other prosecution witnesses.

2260 TF1-157, Transcript 22 July 2005, pp. 56–57. 2261 TF1-157, Transcript 22 July 2005, pp. 57–58. 2262 TF1-157, Transcript 25 July 2005, p. 8. 2263 TF1-157, Transcript 22 July 2005, p. 58. 2264 TF1-157, Transcript 22 July 2005, pp. 58–60. 2265 TF1-157, Transcript 22 July 2005, pp. 62–63, 88. 2266 TF1-157, Transcript 22 July 2005, pp. 62–65. 2267 TF1-157, Transcript 22 July 2005, pp. 67–87. 1528 part iv

1254. Given the precision with which the witness described his journey from Bonoya/Bornoya to Robat Mess/Camp Rosos, events at Robat Mess/Camp Rosos,2268 the journey towards Freetown, including the death of SAJ Musa in Benguema,2269 and the fact that the troops arrived in Freetown on “January 6,”2270 the Trial Chamber is able to infer beyond a reasonable doubt that the witness was abducted between May and August of 1998.2271 Along the route the child witnessed the commission of numerous crimes by his abductors,2272 and was systematically exploited and abused. ‘Mohamed’ forced him to carry rice and luggage along the route from Bonoya to Camp Rosos,2273 while other captors also used him to fetch water, and pound rice, in addition to carrying goods for the troops.2274 Upon arrival at Camp Rosos, the witness’ abductors forced the witness to undergo military training.2275 During that training, the witness was repeatedly flogged by his captors because he “was Mandingo and belonged to Tejan Kabbah’s people.”2276 As part of the military instruction the witness was given injections and tablets of drugs which he believed to be cocaine.2277 The daily doses of narcotics were so strong that the witness did not know what he was doing, and could not tell the court whether he had killed anyone while under the influence.2278 At one point ‘Adama Cuthand,’ a known fĳighter associated with the AFRC soldiers, threatened to amputate one of his limbs–although it is not clear why–and he only narrowly escaped that fate.2279 The witness testifĳied that he learned at Camp Rosos that the commanders in charge of the “rebels” who had captured him were ‘Gullit,’ ‘Five- Five’ and ‘Adama Cut Hand.’2280 1255. On 6 January, 1999 the witness entered Freetown with the SLA rebels.2281 He was forced by his commander Abdul to accompany him wherever he went in Freetown. The witness gives as an example an occasion on which he was forced to accompany Abdul to Calaba Town to burn vehicles and houses and kill people.2282 On two occasions Abdul also took the witness to fĳight at Eastern Police.2283

2268 TF1-157, Transcript 22 July 2005, pp. 68–90, 90–91, 96. 2269 TF1-157, Transcript 25 July 2005, pp. 15–18. 2270 TF1-157, Transcript 25 July 2005, p. 18. 2271 TF1-157, Transcript 22 July 2005, p. 66. 2272 TF1-157, Transcript 22 July 2005, pp. 67–82. 2273 TF1-157, Transcript 22 July 2005, pp. 62–63, 86. 2274 TF1-157, Transcript 22 July 2005, p. 86. 2275 TF1-157, Transcript 25 July 2005, pp. 3, 6. 2276 TF1-157, Transcript 25 July 2005, p. 5. 2277 TF1-157, Transcript 25 July 2005, p. 6. 2278 TF1-157, Transcript 25 July 2005, p. 6. 2279 TF1-157, Transcript 25 July 2005, pp. 20–21. 2280 TF1-157, Transcript 25 July 2005, pp. 90–92. 2281 TF1-157, Transcript 25 July 2005, p. 18. 2282 TF1-157, Transcript 25 July 2005, pp. 23–24. 2283 TF1-157, Transcript 25 July 2005, p. 25, 26 September 2005, p. 22. judgments 1529

It emerged in cross-examination that witness TF1-157 did not fĳight on these occasions, but that his role was to carry equipment for Abdul.2284 Following the retreat from Freetown, the witness managed to escape from the rebels and found his way to the protection of UNICEF.2285 The Trial Chamber notes that the witness was not shaken on cross-examination, and therefore in spite of his youth at the time of events fĳinds that the witness was credible and reliable with regards to the details of captivity and his treatment in captivity. However, the Trial Chamber will consider the youth of the witness at the time of events when evaluating the weight to be accorded his testimony regarding the command structure of the troops he was forced to accompany. 1256. Witness TF1-158, who is the younger brother of Witness TF1-157,2286 was 18 years old when he testifĳied before the Court. He too did not recall the precise year but remembered that he was 10 years old when armed soldiers and men wearing mixed combat and civilian witness attacked the Mosque in Bonoya/Bornoya where the witness was attending a service.2287 The attackers wore mixed combat and civilian clothing.2288 The witness later learned that the leaders of the group that attacked Bonoya/Bornoya were “SAJ Musa. Gullit, Five-Five and O-Five.”2289 He also referred to his abductors as “SAJ Musa’s group.”2290 The witness watched ‘Adama’ hack his father to death on the day he was abducted,2291 was compelled by his captors to carry food for the troops,2292 and witnessed the commission of numerous crimes by the troops who had abducted him.2293 The witness testifĳied that he spent a week at Rosos,2294 where like witness TF1-157, he was forced by his captors to participate in military training. Some of those trained with him were as young as seven or eight years old.2295 Soon after the military training the witness managed to escape to the village of Kamasufu, where he was arrested a second time by a diffferent faction of AFRC soldiers associated with the fĳighters named “Savage” and “Stafff Alhaji. When asked at which time he was abducted the second

2284 TF1-157, Transcript 26 September 2005 p. 22. 2285 TF1-157, Transcript 25 July 2005, pp. 27–28. 2286 TF1-158, Transcript 26 July 2006, p. 50 (sealed). 2287 TF1-158, Transcript 26 July 2005, p. 30. 2288 TF1-158, Transcript 26 July 2005, p. 30. 2289 TF1-158, Transcript 26 July 2005, p. 32. See also Transcript 26 July 2005, p. 37 where the witness says that he saw “Gullit, Five-Five and O-Five” at Mateboi and again at Rosos. See Transcript 26 July 2005, p. 35 where the witness further describes the clothing worn by the assailants who attacked Bonoya. See also Transcript 26 July 2005, p. 40 where witness states that “Gullit, O-Five and Five-Five” watched Stafff Alhaji provide military training to the witness. 2290 TF1-158, Transcript 26 July 2005, p. 37. See also Transcript 26 July 2005, p. 39 where witness gives his age at the time of events. 2291 TF1-158, Transcript 26 July 2005, pp. 33–34. 2292 TF1-158, Transcript 26 July 2005, p. 37. 2293 TF1-158, Transcript 26 July 2005, p. 36. 2294 TF1-158, Transcript 26 July 2005, p. 39. 2295 TF1-158, Transcript 26 July 2005, pp. 39–41. 1530 part iv time the witness answered that “it was when they said there was a ceasefĳire.2296 The Trial Chamber therefore infers that the second abduction took place in 1999. The witness was again forced to carry loads for his captors,2297 and forced to undergo further military training2298 before being sent to participate in an attack on Kabala.2299 The attack failed and the troops were forced to retreat to Kamabai. Five days later the witness was told there was infĳighting between the RUF and AFRC at Makeni. Savage then ordered that the troops disarm and the witness was turned over to the United Nations.2300 1257. The Trial Chamber concludes that Witness TF1-158 was abducted and exploited the fĳirst time by a group associated with the Accused during a period covered by the Indictment. However, the witness was abducted the second time in Bombali District in 1999. The Trial Chamber recalls that it is the Prosecution’s case that during this time the Accused were in the Western Area or Port Loko Districts. Although this point in itself is not dispositive, the Prosecution has failed to make a case linking the Accused with crimes committed in Bombali district in late 1998 or early 1999. Accordingly, while the Trial Chamber fĳinds that Witness TF1-158 was again abducted and used to participate in hostilities, the Trial Chamber will disregard the evidence on this second abduction. 1258. The Brima Defence points out that the witness described the Accused Brima as having a stammer when he speaks.2301 The Accused testifĳied before the Chamber for 21 days and displayed no sign of a stammer in his speech. The Trial Chamber also observes that the witness repeatedly stated that the commanders of the fĳirst group that abducted him were “SAJ Musa, Gullit, 55 and 05.”2302 However, other evidence before this Chamber indicates that SAJ Musa and ‘O-Five’ were not together with the Accused Brima and Kanu in Bombali District during this period. The witness also testifĳied that ‘Stafff Alhaji’ trained child soldiers both at Camp Rosos in Bombali District,2303 during the witness’ fĳirst abduction, and at Kamabai in Koinadugu District, during his second abduction, which the Trial Chamber believes is improbable.2304 On cross-examination, however, the Witness was not shaken with regards to the description of his treatment in captivity. The Trial Chamber further notes that the events as described by TF1-158 are notably distinct from those related by witness TF1-157. Therefore the Trial Chamber fĳinds that in

2296 TF1-158, Transcript 26 July 2005, p. 42. 2297 TF1-158, Transcript 26 July 2005, p. 42. 2298 TF1-158, Transcript 26 July 2005, p. 44. 2299 TF1-158, Transcript 26 July 2005, pp. 43–46. 2300 TF1-158, Transcript 26 July 2005, pp. 45–46. 2301 Brima Final Trial Brief, para. 291; [sic, the Final Brief refers to TF1-157]. 2302 TF1-158, Transcript 26 July 2005, p. 32. 2303 TF1-158, Transcript 26 July 2005, pp. 38–40. 2304 TF1-158, Transcript 26 July 2005, p. 44. judgments 1531 spite of his youth, the witness was credible and reliable with regards to the details of captivity and his treatment in captivity. However, it will not rely on his testimony with regards to the command structure. 1259. Three other former child soldiers testifĳied before the Chamber, TF1-199, TF1-180, TF1-085 but the Trial Chamber concludes that their testimonies were problematic. TF1-180 testifĳied that he was abducted in Bombali District. He was then shuttled back and forth between Bombali District and Port Loko District and was eventually sent to fĳight ECOMOG in Koinadugu District. The only indication that the witness provides regarding the time frame is that the Commanders in charge of his captivity were “General Issa, Brigadier Five-Five and General Gullit” suggesting that his captivity took place after the retreat from Freetown to Port Loko or Bombali District in 1999.2305 The Indictment refers to no other crimes taking place in Port Loko after April 1999, and to no crimes at all in Koinadugu and Bombali Districts during this period. 1260. TF1-085 testifĳied she was abducted in Freetown in January 1999. She was then forced into a “marriage” with her captor. She spent “months” in Port Loko District where she endured a series of sexual crimes. After an attempt to escape, this witness too was shuttled back and forth between Port Loko and Makeni Districts where she was forced to undergo military training. Following a long, but imprecise, period of sexual enslavement, she was sent to participate in an attack on Kono. The Trial Chamber has no other information regarding any attacks on Kono after the spring of 1998.2306 Thus, the Trial Chamber is unable to link the military element of the witness’ experiences, directly or indirectly, to the Accused. 1261. TF1-199 testifĳied that he was abducted in Bombali district during the Christmas holidays of 1998. ‘Lieutenant Marah’ and his superior ‘Savage’ were the commanders of the faction that abducted the witness.2307 The Brima Defence argues that these two men were part of Brigadier Mani’s group, and that the Prosecution has not linked Brigadier Mani to the Accused during this period.2308 The Trial Chamber recalls that it is the Prosecution’s case that during this period, the Accused were in the Western Area preparing the attack on Freetown. Although this point in itself is not dispositive, the Prosecution has failed to make a case linking the accused with crimes committed in Bombali district in late 1998 or early 1999.

2305 TF1-180, Transcript 8 July 2005, pp. 5–18. 2306 TF1-085, Transcript 7 April 2005, pp. 12–50. The witness was abducted in Freetown in January 1999. 2307 TF1-199, Transcript 6 October 2005, pp. 69–75, 86–87: The Trial Chamber notes that two Foday Marah’s are referred to in the evidence. Foday Bah Marah was a renegade soldier and participated in the 6 January 1999 invasion. The afffĳiliation of the other Foday Marah is unclear. 2308 Brima Final Trial Brief, para. 290. 1532 part iv

4. The Evidence of Other Witnesses 1262. In addition to the testimony provided by former child soldiers, the Trial Chamber heard the evidence of witnesses who said that crimes against them were committed by child soldiers, and the evidence of other witnesses who described the abduction and use of child soldiers by SLA soldiers. Witnesses TF1-023, who was 16 years old at the time of events, testifĳied that she was captured by a “young boy” holding a gun on 22 January 1999.2309 She was then taken to Allen Town with other abducted civilians. Once there, she and other civilians were guarded by boys her abductors referred to as ‘SBUs’ which she said stood for ‘Small Boy Units.’ The witness believed these boys to have been between 13 and 15 years old.2310 TF1-024 testifĳied that he was abducted by three “rebel boys” on 8 January 1999.2311 However, as he did not provide an approximate age for these “boys,” the Trial Chamber will not consider his testimony on this particular subject. 1263. On the 25th of January 1999, Witness TF1-227 was abducted by AFRC troops led by a ‘Corporal Bastard’ at Kola Tree in the Western Area and taken to Benguema in the Western Area.2312 At Benguema, he saw approximately 25 combatants between the ages of 10 and 14 years old.2313 They were dressed in military uniforms, carried guns and “acted like they were trained soldiers.”2314 He said that “Brigadier Five-Five” personally had fĳive to ten child combatants with him.2315 He described Five-Five as a “mature gentleman” wearing civilian clothes.2316 The Witness explained that child soldiers were responsible for flogging civilians who disobeyed disciplinary rules.2317 As the Witness’ identifĳication of ‘Brigadier Five- Five’ is vague, the Trial Chamber will not rely on it in making its fĳindings on the liability of the Accused Kanu for this crime. 1264. Witness TF1-206 testifĳied that he was abducted by rebels wearing combat clothing in Bombafoidu, Kono during the night of 12–13 April 1998.2318 Once captured by these men, the witness and other abducted civilians were forced to undress by an armed boy between the ages of 12 and 14 wearing combat clothing.2319

2309 TF1-023, Transcript 9 March 2005, p. 30. 2310 TF1-023, Transcript 9 March 2005, p. 35. 2311 TF1-024, Transcript 7 March 2005, pp. 43–44. 2312 TF1-227, Transcripts 8 April 2005, pp. 95–96; Transcript 11 April 2005, pp. 2–3. 2313 TF1-227, Transcript 11 April 2005. 2314 TF1-227, Transcript 11 April 2005, pp. 16, 21. 2315 TF1-227, Transcript 11 April 2005, p. 22. 2316 TF1-227, Transcript 11 April 2005, p. 18. 2317 TF1-227, Transcript 11 April 2005,pp. 6–7, 21–23. 2318 TF1-206, Transcript 28 June 2005, pp. 86–88. 2319 TF1-206, Transcript 28 June, p. 92. judgments 1533

1265. Witnesses TF1-122 and TF1-062 described the use of children in Kenema District. The former testifĳied that during the Junta period he saw child soldiers, some no older than 12 years old, at the AFRC Secretariat in Kenema,2320 while the latter said he saw armed children as young as 12 guarding Cyborg Pit, a diamond mining area in Kenema, during the same period.2321 1266. Referring to the Applicable Law above, 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 efffect to, or helps maintain, operations in a conflict constitutes active participation. 1267. Thus, with regards to the specifĳic question of using a child to guard a diamond mine, the Trial Chamber observes that in the instant conflict, diamonds were mined and sold to raise revenue to fĳinance war effforts. Therefore, use of a child to guard a diamond mine in this context put the child at sufffĳicient risk to constitute illegal use of the child pursuant to Article 4(C) of the Statute. Therefore, the Trial Chamber will consider the evidence of Witness TF1-062. TF1-122 testifĳied that he saw child soldiers at the AFRC Secretariat in Kenema. He also testifĳied that crimes were committed in that Secretariat.2322 Thus the Trial Chamber further fĳinds that regardless of the specifĳic duties of the children at the Secretariat, the presence of children in locations where crimes were widely committed was illegal. 1268. Witness TF1-133 testifĳied that ‘Pa Mani’ used children as bodyguards at his home in Kurunbonla, Koinadugu in 1998.2323 The Trial Chamber is satisfĳied that ‘Pa Mani’ is Brigadier Mani, the Director of Defence in the AFRC government. However, the Prosecution has adduced no evidence linking the crimes of Brigadier Mani with the Accused. 1269. In addition to the prosecution witnesses, Defence witnesses DAB-081 and DBK-037 also indicated that the use of child soldiers was prevalent during the Indictment period. DBK-081 testifĳied that in July 1998 rebels associated with SAJ Musa and ‘Superman’ attacked the witness’ village in Koinadugu District.2324 While the factions occupied the town, they “recruited” young boys and girls and used them to “safeguard the village from enemy attack.” The abductees ranged in age from 14 to 18 years old.2325 DBK-037, testifĳied that numerous children were abducted

2320 TF1-122, Transcript 24 June 2005, pp. 17–18. 2321 TF1-062, Transcript 27 June 2005, pp. 35–36. 2322 TF1-122, Transcript 24 June 2005, pp. 12–13. 2323 TF1-133, Transcript 7 July 2005, pp. 95–96. 2324 DAB-081, Transcript 20 July 2006, p. 82. 2325 DAB-081, Transcript 21 July 2006, p. 3. 1534 part iv during the retreat from Freetown, and that commanders on the “West Side” in Port Loko District had approximately 300 child combatants in their charge. However, the witness did not specify the time period.2326 The Trial Chamber, however, fĳinds no evidence linking the Accused to these children. 1270. The testimony of other witnesses has enabled the Trial Chamber to put the evidence provided by former child soldiers and their victims into a broader context. TF1-334 testifĳied that following Johnny Paul Koroma’s declaration of Koidu (Kono District) as a “no-go area” area for civilians in late February 1998, rebel soldiers began capturing civilians for a variety of uses, including children between the ages of 8 and 12. Young boys were assigned to Small Boy Units (SBUs) which were used in Tombodu to amputate the limbs of civilians.2327 1271. George Johnson testifĳied that hundreds of civilians were abducted by AFRC troops during the trek from Mansofĳinia to Camp Rosos, including men, women and children.2328 Among those who received military training at Rosos were small boys between the ages of ten and fĳifteen who were called “Small Boy Units.” Following the training these boys were then divided into battalions. The witness himself had approximately 15 SBUs under his command.2329 TF1-334 corroborated this evidence saying small children as young as ten years old were abducted at Karina and distributed among the military commanders,2330 and that at Camp Rosos he personally provided military training to children abducted between Mansofĳinia and Rosos.2331 Witness TF1-153 testifĳied that he had seen many child soldiers at the base established by the AFRC soldiers at ‘Colonel Eddie Town.’2332 1272. Witness TF1-334 further stated that during the 1999 invasion of Freetown, ‘Gullit’ ordered the capture of civilians saying that it would attract the attention of the international community.2333 Approximately 300 abducted civilians were taken by the fĳighters from Freetown to Benguema.2334 Among those captured were “many” small boys, including some as young as nine or ten years old. They were later trained as SBUs, and the witness himself had two SBUs.2335 He added that once the retreating troops arrived at Newton in the Western Area, ‘Gullit’ ordered that everyone who had a young boy between the ages of ten and twelve should provide the child with basic military training.2336

2326 DBK-037, Transcript 4 October 2006, p. 55. 2327 TF1-334, Transcript 20 May 2005, pp. 4–6. 2328 George Johnson, Transcript 15 September 2005, pp. 58–59. 2329 George Johnson, Transcript 15 September 2005, pp. 65–67. 2330 TF1-334, Transcript 23 May 2005, p. 73. 2331 TF1-334, Transcript 23 May 2005, p. 73, and Transcript 24 May 2005, pp. 23–25. 2332 TF1-153, Transcript 22 September 2005, p. 83. 2333 TF1-334, Transcript 14 June 2005, pp. 118–119. 2334 TF1-334, Transcript 14 June 2005, p. 116. 2335 TF1-334, Transcript 14 June 2005, pp. 121–122. 2336 TF1-334, Transcript 15 June 2005, pp. 14–15. judgments 1535

1273. Witness TF1-334 further testifĳied that while he, ‘Gullit,’ ‘Bazzy,’ ‘Five-Five’ and ‘Commander A,’ a close associate of the accused, were at Newton following the 1999 retreat from Freetown, they met with offfĳicials from UNAMSIL and Archbishop Ganda who asked the fĳighters to release children in order to help secure a ceasefĳire. ‘Gullit’ responded that he would consider the proposal but no children were released.2337 With regards to this particular evidence, however, the Trial Chamber notes that the Witness did not say that the children had been abducted nor did he explain what they were being used for. 1274. Finally, a UN Report released in the wake of the January 1999 invasion of Freetown stated that “a signifĳicant number of rebel combatants were children. Reports were received of death and injuries being inflicted by boys as young as eight to 11 years old.”2338 1275. The Trial Chamber therefore fĳinds that the AFRC fĳighting forces conscripted children under the age of 15 years old and/or used them to participate actively in hostilities during the period covered by the Indictment. The Trial Chamber is of the view that the AFRC fĳighting faction used children as combatants because they were easy to manipulate and program, and resilient in battle.2339 In the instant case, the evidence is conclusive that most, if not all, of the children in question were forcibly abducted from their families or legal guardians.2340 In addition to having been kidnapped, child soldiers described having been forced into hard labour2341 and military training, and sent into battle, often on the front- lines.2342 They were also beaten;2343 forced to watch the commission of crimes

2337 TF1-334, Transcript 15 June 2005, pp. 16–17. 2338 Exhibit P-46, “Fifth Report of the Secretary General on the United Nations Observer Mission in Sierra Leone,” 4 March 1999, para. 25. 2339 Defence Expert Witness Osman Gbla, “Research Report: The use of child soldiers in the Sierra Leone Conflict,” 11 October 2006, para. 40. 2340 Exhibit P-33, “Report on the Situation in Sierra Leone in Relation to Children with the Fighting Forces,” para. 47. Exhibit P-55, Amnesty International “Sierra Leone; Childhood – A casualty of conflict,” 31 August 2000, para. 55; Exhibit P-46,”Report of the Secretary-General on the United nations Observer Mission in Sierra Leone,” 4 March 1999, para. 26; Prosecution Military Expert, Col. Richard Iron, exhibit P-36, para. C3.1; exhibit P-52, Human Rights Watch, “Sowing Terror: Atrocities against civilians in Sierra Leone,” July 1998; TF1-334, Transcript 24 May 2005, pp. 23–24, 14 June 2005, pp. 121–122. 2341 Exhibit P-33, “Report on the Situation in Sierra Leone in Relation to Children with the Fighting Forces,” para. 47; exhibit P-46, “Report of the Secretary-General on the United nations Observer Mission in Sierra Leone,” 4 March 1999, para. 26. 2342 Exhibit P-33, “Report on the Situation in Sierra Leone in Relation to Children with the Fighting Forces,” para. 49; Exhibit P-55, Amnesty International “Sierra Leone; Childhood- A casualty of conflict,” 31 August 2000; Exhibit P-46, “Report of the Secretary-General on the United Nations Observer Mission in Sierra Leone,” 4 March 1999, paras. 25, 26; Prosecution Military Expert, Col. Richard Iron, exhibit P-36, para. C3.1; George Johnson, Transcript 15 September 2005, pp. 65–66; TF1-334, Transcript 24 May 2005, pp. 23–25. 2343 TF1-157, Transcript 25 July 2005, p. 5. 1536 part iv against family members;2344 injected with narcotics to make them fearless;2345 compelled to commit crimes including rape, murder, amputation and abduction;2346 used as human shields;2347 and threatened with death if they tried to escape or refused to obey orders.2348

5. Findings 1276. The Trial Chamber is therefore satisfĳied that children were routinely recruited and used for military purposes by the AFRC fĳighting forces. The only method of recruitment described in the evidence is abduction, a particularly egregious form of ‘conscription.’ 1277. The Trial Chamber is further satisfĳied that AFRC and RUF forces abducted children for military purposes in Kenema District2349 during the AFRC government period, and that the AFRC fĳighting forces abducted children for military purposes in Kono,2350 Koinadugu and Bombali2351 Districts in 1998, and in Freetown and the Weefstern area in 1999.2352 It fĳinds the evidence insufffĳicient to make a fĳinding with regards to the conscription and/or use of Child Soldiers in Port Loko District between February and April 1999. 1278. Although the Trial Chamber has found that the recruitment of these children for military purposes sufffĳices for a fĳinding of liability under Count 12, the Trial Chamber is further satisfĳied that children under the age of 15 were used for

2344 TF1-158, Transcript 26 July 2005, p. 33. 2345 Exhibit P-33, “Report on the Situation in Sierra Leone in Relation to Children with the Fighting Forces,” para. 48; Prosecution Exhibit 46, para. 22; exhibit P-55, Amnesty International “Sierra Leone; Childhood – A casualty of conflict,” 31 August 2000; TF1-180, Transcript 8 July 2005, pp. 10–12. 2346 Exhibit P-33, “Report on the Situation in Sierra Leone in Relation to Children with the Fighting Forces,” para. 46; TF1-334, Transcript 20 May 2005, p. 6; TF1-180, Transcript 8 July 2005, pp. 13–15; TF1- 024, Transcript 7 March 2005, pp. 43–44, 50; TF1-023, transcript 9 March 2005, pp. 30–36; TF1-227, Transcript 11 April 2005, pp. 21–23; TF1-206, Transcript 28 June 2005, p. 92; TF1-334, Transcript 20 May 2005, pp. 4–6. Exhibit P-57, “No Peace Without Justice-Conflict Mapping Program,” 9 March 2004. 2347 Exhibit P-33, “Report on the Situation in Sierra Leone in Relation to Children with the Fighting Forces,” para. 47. 2348 Exhibit P-33, “Report on the Situation in Sierra Leone in Relation to Children with the Fighting Forces,” paras. 48–49; Exhibit P-55, Amnesty International “Sierra Leone; Childhood- A casualty of conflict,” 31 August 2000; TF1-334, Transcript 20 May 2005, pp. 4–5. 2349 TF1-122, Transcript 24 June 2005, pp. 17–18. TF1-062, Transcript 27 June 2005, pp. 35–36. 2350 TF1-206, Transcript 28 June, p. 92. TF1-334, Transcript 20 May 2005, pp. 4–6. 2351 TF1-157, Transcript 22 July 2005, pp. 68–90, 90–91, 96. TF1-158, Transcript 26 July 2005, pp. 39–41. TF1-334, Transcript 23 May 2005, p. 73, and TF1-334 Transcript 24 May 2005 pp. 23–26. TF1-153, Transcript 22 September 2005, p. 83. P-Exhibit 51, “Report on Atrocities Committed” UNHCR, 28 January 1999. Exhibit P-55, Amnesty International “Sierra Leone childhood- a casualty of conflict,” 31 August 2000. 2352 TF1-023, Transcript 9 March 2005, pp. 30–36; TF1-024, Transcript 7 March 2005, pp. 43–44, 50. TF1-227, Transcript 11 April 2005, pp. 6–7, 21–23. George Johnson, Transcript 15 September 2005, pp. 65–67. TF1-334, Transcript 15 June 2005, pp. 13–15. judgments 1537 military purposes in Kenema District in 1997–1998,2353 Kono District in 1998,2354 and Freetown and the Western Area in 1999.2355 The Trial Chamber fĳinds that forcing children to undergo military training in a hostile environment constitutes illegal use of children pursuant to Article 4(C), and therefore also fĳinds that AFRC forces illegally used children in Bombali District in 1998.2356 The Trial Chamber is further satisfĳied that incidents of conscripting or enlisting children under the age of 15 years into armed forces or groups or using them to participate actively in hostilities were linked to the Accused in this case in the districts of Bombali and Freetown and the Western Area.

F. Abductions and Forced Labour (Count 13) 1. Allegations and Submissions 1279. The Indictment alleges that “[a]t 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 of diamond miners.”2357 The Indictment specifĳies that such acts allegedly occurred in various locations in the territory of Sierra Leone, including Kenema District between about 1 August 1997 and about 31 January 1998; Kono District between about 14 February 1998 to January 2000; Koinadugu District between about 14 February 1998 and 30 September 1998; Bombali District between about 1 May 1998 and 31 November 1998; Kailahun District at all times relevant to the Indict- ment; Freetown and the Western Area between 6 January 1999 and 28 February 1999; and Port Loko District about February 1999.2358 The Accused are thus charged with enslavement, a crime against humanity, punishable under Article 2(c) of the Statute. 1280. The Trial Chamber recalls that the Prosecution has pleaded specifĳic locations at which abductions and forced labour are alleged to have occurred in Kenema, Kono, Koinadugu, Freetown and Western Area and Port Loko, but has not provided such particulars in respect of Bombali and Kailahun Districts. Given the continuous nature of the offfence, and in the interests of justice, the Trial Chamber has considered all the evidence of enslavement adduced in relation to

2353 TF1-062, Transcript 27 June 2005, pp. 35–36. 2354 TF1-206, Transcript 28 June, p. 92. TF1-334, Transcript 20 May 2005, pp. 4–6. 2355 TF1-023, Transcript 9 March 2005, pp. 30–36; TF1-024, Transcript 7 March 2005, pp. 43–44, 50. TF1-227, Transcript 11 April 2005,pp. 6–7, 21–23. Exhibit P-46, “Report of the UN Observer Mission in Sierra Leone (UNOMSIL),” 4 March 1999. 2356 TF1-157, Transcript 25 July 2005, pp. 3, 6. TF1-158, Transcript 26 July 2005, pp. 39–41. George Johnson, Transcript 15 September 2005, pp. 65–67. TF1-334, Transcript 23 May 2005, p. 73, and TF1-334 Transcript 24 May 2005 pp. 23–25. 2357 Indictment, para. 66. 2358 Indictment, paras. 67–73. 1538 part iv each District, provided that it falls within the timeframe specifĳied in the Indictment.2359 1281. Submissions by the Parties in respect of particular incidents or witnesses have been discussed as they arise on the evidence below. In addition, however, the Parties made several general submissions on the evidence with respect to enslavement. 1282. The Prosecution submits that the evidence adduced establishes the legal requirements for a fĳinding of enslavement as a crime against humanity.2360 The Prosecution argues that it is not necessary for a fĳinding of enslavement to prove that the perpetrators intended to detain the victims under constant control for a prolonged period of time, citing the ICTY Appeals Chamber decision in Kunarac in support of this proposition.2361 The Trial Chamber accepts that a person may be enslaved for a short period of time provided that in that time the perpetrator intentionally exercises a degree of control over the person sufffĳicient to constitute the actus reus of the crime.

2. The Brima Defence submits that there is no evidence before the Trial Chamber capable of supporting a charge of enslavement.2362 1283. The Kanu Defence also submits that the evidence presented during the trial does not support a conviction on enslavement.2363 The Kanu Defence submits in relation to forced labour that the evidence must prove objectively that the witness was forced to work. The Kanu Defence argues that some of the evidence adduced by the Prosecution fails to fulfĳil this requirement as it was subjective, meaning that the evidence proved only the witness’s personal conviction that she or he was compelled to work.2364 The Trial Chamber emphasises that the legal defĳinition of enslavement is framed objectively.2365 When considering the evidence below, the Trial Chamber has looked for objective indications that civilians were forced to work, such as threats or use of violence by the perpetrators and lack of compensation. Findings are made only where the Trial Chamber is satisfĳied beyond reasonable doubt that the civilians were forced to work by AFRC/RUF soldiers.

2359 See discussion on the pleading of offfences of a continuous nature: Alleged Defects in the Form of the Indictent, paras. 39–41. 2360 Prosecution Final Brief, para. 1034. 2361 Prosecution Final Brief, para. 1032; Prosecutor v. Kunarac et al., IT-96-23&23/1-A, “Judgement,” Appeals Chamber, 12 June 2002 paras. 116–122. 2362 Brima Defence Final Brief, para. 315. 2363 Kanu Defence Final Brief, para. 92. 2364 Kanu Defence Final Brief, para. 84, citing Prosecutor v. Krnojelac, Appeals Chamber Judgement, 17 September 2003, IT-97-25-A, para. 159. 2365 Applicable Law, paras. 744–749. judgments 1539

1284. The Kanu Defence further submits that evidence of abduction does not sufffĳice for a fĳinding of enslavement and rather, the Prosecution must prove that victims were abducted and then subjected to enslavement. The Kanu Defence argues that much of the Prosecution evidence deals only with abducted civilians and it cannot be inferred that these abducted civilians were used as forced labour on the basis of evidence of diffferent incidents in which abducted civilians were so used.2366 1285. The Trial Chamber accepts the submission that evidence that civilians were abducted, in the absence of proof of what subsequently occurred to them, is not sufffĳicient per se to prove that these civilians were enslaved. However, the Trial Chamber relies on evidence of abductions insofar as it corroborates the evidence of witnesses who were abducted and then enslaved by AFRC/RUF troops. 1286. The Trial Chamber has considered the evidence adduced below to determine whether the actus reus of enslavement is proved beyond reasonable doubt in respect of the locations and time frames pleaded in the Indictment. The Trial Chamber fĳinds that where the actus reus of the crime has been established, the only reasonable inference on the evidence is that the perpetrators intentionally exercised powers attaching to the right of ownership over the abductees. The Trial Chamber is also satisfĳied that each of the perpetrators was aware that their acts formed part of the widespread and systematic attack on the civilian population which was taking place at the time the crime was committed. In such circumstances the requisite mens rea element of the offfence is established.

2. Findings (a) Kenema District (about 1 August 1997 – about 31 January 1998) 1287. The Prosecution alleges that “[b]etween about 1 August 1997 and 31 January 1998, AFRC/RUF forced an unknown number of civilians living in the District to mine for diamonds at Cyborg Pit in Tongo Field.”2367 1288. In arriving at the following fĳindings of fact, the Trial Chamber has considered the available evidence, in particular the testimony of Prosecution witnesses TF1-062, TF1-122, TF1-334 and TF1-045 and Defence witnesses DAB-147, DAB-033 and DBK-063. (i) Tongo Field 1289. Witness TF1-062 is a miner who was living and working in Tongo Field in 1997, with six men employed to mine for him.2368 On an unspecifĳied date in August

2366 Kanu Defence Final Brief, paras. 87–90. 2367 Indictment, para. 67. 2368 TF1-062, Transcript 27 June 2005, p. 4. 1540 part iv

1997, witness TF1-062 heard gunfĳire and soon after observed soldiers entering Tongo Field. Some of these soldiers wore combat and others were in civilian clothing. The witness recognised the soldiers in combat as members of the SLA.2369 The witness identifĳied Sam Bockarie (‘Mosquito’) as the commander of the men, since he entered in a jeep and spoke to the civilians.2370 1290. Approximately three days later, ‘Mosquito’ gathered the civilians of Tongo Field in a public meeting at Tongo Park attended by witness TF1-062.2371 He informed the civilians that the AFRC/RUF government, formed in Freetown, was now in control of Tongo. The civilians were told that ‘Mosquito’ had set up a secretariat, under Lieutenant Dennis, to handle any of their complaints. In addition, ‘Mosquito’ told the civilians that they were going to mine for diamonds.2372 Witness TF1-062 testifĳied that soon after this meeting, ‘Mosquito’ left Tongo Field, leaving SLA commander Jamayo Kati in charge of the mining. Kati was subsequently killed and replaced by SLA soldier Set Marrah.2373 However, ‘Mosquito’ would visit Tongo Field more or less at weekly intervals.2374 1291. Witness TF1-062 stated that the civilians of Tongo Field were subsequently required to elect from their number a chairman, named Mompleh, who would be responsible for organising the civilian mining. Commander Pa Set Marrah informed the civilians, through Mompleh, that ‘Mosquito’ had ordered that they should mine for “the Government” two days a week.2375 Witness TF1-062 testifĳied that thereafter the AFRC/RUF would designate certain days as ‘government days.’2376 On ‘government days,’ the civilians of Tongo Field were forced to go and work in the mines in an area known as Cyborg Pit.2377 1292. Witness TF1-062 estimated that over a thousand civilians worked in the mines on ‘government days.’2378 The AFRC/RUF government did not provide the civilians with food or mining equipment.2379 Witness TF1-062 testifĳied that civilians would not refuse to work on ‘government days’ since they knew that if they did so, the AFRC/RUF would mete out “discipline.”2380 The witness stated, as an

2369 TF1-062, Transcript 27 June 2005, pp. 8, 43–45. 2370 TF1-062, Transcript 27 June 2005, pp. 8–9. 2371 TF1-062, Transcript 27 June 2005, p. 13. 2372 TF1-062, Transcript 27 June 2005, pp. 14–16. 2373 TF1-062, Transcript 27 June 2005, pp. 20–21. This commander is referred to in the transcript as ‘Katy.’ The Trial Chamber has adopted the spelling ‘Kati’ for consistency, as it is satisfĳied that this is the same person referred to in the evidence of TF1-045 below. 2374 TF1-062, Transcript 27 June 2005, pp. 25, 54. 2375 TF1-062, Transcript 27 June 2005, p. 24. 2376 TF1-062, Transcript 27 June 2005, p. 27. 2377 TF1-062, Transcript 27 June 2005, pp. 22–23, 27. See also TF1-045 Transcript 19 July 2005, p. 48 and DAB-147, Transcript 3 October 2006, p. 62. 2378 TF1-062, Transcript 27 June 2005, pp. 26–27. 2379 TF1-062, Transcript 27 June 2005, p. 31. 2380 TF1-062, Transcript 27 June 2005, p. 27. judgments 1541 example, that one of his workers hid in an attempt to avoid work, but was found and beaten.2381 1293. On ‘government days,’ civilians were compelled to hand over any diamonds found to the AFRC/RUF soldiers supervising the mine work.2382 The supervising soldiers at Cyborg Pit were armed with guns, such as RPGs, LMGs, G-3s, and AK-47s, and would watch the civilian miners to ensure that all diamonds found were surrendered.2383 Civilians who attempted to keep diamonds found during a government mining day would be flogged almost to death.2384 Witness TF1-062 watched AFRC/RUF soldiers shoot and kill civilian miners that disobeyed orders on two occasions.2385 In addition, the witness regularly saw corpses being brought out of the Cyborg pit, and he was informed by his workers that these civilians had been shot by AFRC/RUF soldiers.2386 Even on non-government days, AFRC/RUF soldiers would be present at Cyborg Pit and would take diamonds found by civilians.2387 1294. Witness TF1-062 worked for the AFRC/RUF government at Cyborg Pit for about four months, until they were ousted from Tongo Field by the CDF Kamajors in approximately December 1997.2388 His evidence regarding events at Cyborg Pit was corroborated by that of witnesses TF1-045 and TF1-122, each of whom testifĳied that the AFRC/RUF forced civilians to labour in the diamond mines at Tongo Field in the period May 1997 through February 1998. 1295. Witness TF1-122, a civil police offfĳicer based in Kenema Town in the relevant period, testifĳied that on an unspecifĳied date the AFRC/RUF in Kenema Town formed a strong force and left for Tongo Field.2389 Several days later, he spoke with displaced civilians arriving from Tongo, who told him that the AFRC/RUF had captured many able-bodied men and forced them to mine diamonds for them.2390 1296. Witness TF1-045 was an RUF Major who spent two to three months in Tongo Field, from approximately July to September 1997.2391 He was sent there by his RUF commanding offfĳicer to mine diamonds and he did so using captured civilians given to him by the AFRC/RUF. The witness stated that the civilians

2381 TF1-062, Transcript 27 June 2005, pp. 26–27. 2382 TF1-062, Transcript 27 June 2005, p. 26–27; TF1-045, Transcript 19 July 2005, p. 53. 2383 TF1-062, Transcript 27 June 2005, pp. 31–32 and 34–35. 2384 TF1-062, Transcript 27 June 2005, p. 33. 2385 TF1-062, Transcript 27 June 2005, pp. 35–36. 2386 TF1-062, Transcript 27 June 2005, pp. 36–37. 2387 TF1-062, Transcript 27 June 2005, p. 30. 2388 TF1-062, Transcript 27 June 2005, p. 38. 2389 TF1-122, Transcript 24 June 2005, p. 71. 2390 TF1-122, Transcript 24 June 2005, p. 72. 2391 TF1-045, Transcript 19 July 2005, pp. 34–35, 55, Transcript 20 July 2005, pp. 79–81. 1542 part iv he used did not mine for him voluntarily, although he gave them some food and money.2392 1297. Witness TF1-045 was unable to give an estimate of the number of civilians labouring in the mines, but stated that it could have been than 300 or 500.2393 He described the process by which civilians were collected for work. The AFRC oversaw the formation of civilian committees that were in charge of organising their civilian colleagues for government work, in return for which they reputedly earned a commission from the diamonds found.2394 The witness observed civilians being rounded up. He stated that armed men accompanied the committees to search for civilians and collected them at gunpoint.2395 Once captured, the armed men tied the civilians together with their shirts and brought them to the mine where they were forced to work at gunpoint.2396 When asked what happened to civilians who resisted, the witness replied that, from his observations, “If [you] refused to mine and you are captured, you will be beaten. You will undergo serious torture, if – and if you are not lucky you will die. They will shoot you with a gun.”2397 The witness clarifĳied in cross-examination that he saw civilians shot and killed on two occasions.2398 1298. Witness TF1-045 testifĳied that upon his arrival in Tongo Field, Captain Kati was the AFRC commander in charge of a company consisting of both RUF and AFRC troops.2399 Kati reported to ‘Mosquito,’ who was the overall commander of Tongo Field at this time.2400 The witness testifĳied that there were several other AFRC/RUF commanders involved in the mining operation in Tongo Field in this period, including Kati’s deputy, RUF Major ‘Eagle’; the OC Secretariat, AFRC Sergeant ‘Junior’; and the AFRC PLO 2, whose name the witness did not recall.2401 1299. Witness TF1-045 testifĳied that any diamonds found at the mines were handed over to the armed guards, who would then pass them on to the PLO 2. The witness was present at the AFRC Secretariat on occasions when the PLO 2 would weigh the diamonds. The PLO 2 told him that the diamonds were to be sent to Eddie Kanneh, the resident Minister at the time. However, on one occasion the witness observed the PLO 2 giving diamonds to ‘Mosquito.’2402

2392 TF1-045, Transcript 20 July 2005 pp. 85–86. The name of the witness’s commanding offfĳicer was given to the Trial Chamber in closed session. 2393 TF1-045, Transcript 19 July 2005, p. 47. 2394 TF1-045, Transcript 20 July 2005, pp. 88–89. 2395 TF1-045, Transcript 19 July 2005, pp. 48–51. 2396 TF1-045, Transcript 19 July 2005, pp. 51–52. 2397 TF1-045, Transcript 19 July 2005, p. 55. 2398 TF1-045, Transcript 20 July 2005, pp. 16–18. 2399 TF1-045, Transcript 19 July 2005, pp. 35–36. 2400 TF1-045, Transcript 19 July 2005, p. 37, Transcript 20 July 2005 p. 85. 2401 TF1-045, Transcript 19 July 2005, pp. 39–40. 2402 TF1-045, Transcript 19 July 2005, pp. 53–55. judgments 1543

1300. The Trial Chamber recalls its fĳinding that the Accused Brima was the PLO 2 during the AFRC period, but that in this position he was involved in mining in Kono District and not Kenema.2403 Although the witness was clearly mistaken in his recollection that the ‘PLO 2’ was in Tongo Field, the Trial Chamber accepts the remainder of his evidence in relation to the use of forced labour as it was detailed and consistent in all material respects and the witness remained unshaken on cross-examination. 1301. The Brima Defence submits that witness TF1-045 did not describe any actual events which led him to conclude that the labour at the mines was forced.2404 The Trial Chamber considers that a reasonable inference may be drawn from the evidence of witness TF1-045 that civilians were collected and taken to the mines at gunpoint, with resistance being met by violence, that their labour was extracted by force and without consent. While the witness does not give particulars of spe- cifĳic incidents in which he saw violence being inflicted on civilians, the Trial Chamber is satisfĳied that his evidence on this point is reliable, given that he personally used forced civilian labour in Tongo Field for a substantial period of time. 1302. Witness TF1-334 also gave evidence that during the AFRC government period both the SLA and the RUF were mining in Tongo. Each faction supervised its own mining sites, but the mining of both factions was under the overall control of the AFRC Secretariat led by Stafff Sergeant ‘Junior Sherifff.’ The AFRC Secretariat was under the command of Secretary of State East, Captain Eddie Kanneh.2405 While the witness does not state that civilians were forced to mine diamonds, the evidence corroborates the testimony of witnesses TF1-062 and TF1-045 that the AFRC were involved in diamond mining in Tongo Field. 1303. The Trial Chamber notes that Defence witnesses DAB-147, DAB-033 and DAB-063 gave evidence to the efffect that the RUF were solely responsible for forced mining at Cyborg Pit in Tongo Field. 1304. Witness DAB-147 visited Kenema on two occasions in the period May 1997 through February 1998. He testifĳied that both AFRC and RUF troops were stationed there. The witness stated that the RUF were mining at Cyborg Pit and they would kill civilians that went there to mine. The RUF commanders in Tongo, according to witness DAB-147, were named Manawa and Mopleh and they reported to Bockarie.2406 However, he also stated at one point that the OC Secretariat Sergeant- Major ‘Junior’ was in charge of Tongo in this period. Witness DAB-047 testifĳied that while he was in Tongo, he did not see AFRC soldiers forcing civilians to work

2403 See discussion of this aspect of witness TF1-045’s evidence in Role of Accused, paras. 329. 2404 Brima Defence Final Brief, p. 123. 2405 TF1-334, Transcript 17 May 2005, pp. 54–55. 2406 DAB-147, Transcript 3 October 2006, pp. 35–37. 1544 part iv in the mines.2407 However, in cross-examination he agreed with the proposition that the AFRC government in Kenema forced civilians to mine for diamonds, before stating repeatedly that he had no knowledge of any AFRC mining operations and he could only testify to RUF mining in Tongo Field.2408 1305. Witness DAB-033, a member of the SLA, was posted to Tongo in July 1997 and remained there until January 1998. He gave evidence that Tongo was under RUF command.2409 Witness DAB-033 agreed that civilians were forced to mine at Cyborg Pit, but testifĳied that the RUF was in control of all mining operations there.2410 Although there were SLAs in Tongo, led by Captain Kati and Seth Marrah, they were under RUF control and did not force civilians to mine.2411 Under cross- examination, witness DAB-033 agreed that there was an AFRC secretariat in Tongo that monitored the mining operations. He also agreed that SLAs and RUF worked together at the secretariat, and SLA ‘Junior Sherifff’ was one of the commanders.2412 Further, the witness’s evidence discloses that the SLAs conducted mining in Tongo, since he states that good mining sites were taken from them by the RUF.2413 1306. Witness DBK-063, a member of the SLA, was posted in Tongo for six months commencing soon after June 1997.2414 He testifĳied that both RUF and SLA members were stationed in Tongo in this period. The RUF were commanded by ‘Mosquito’ and Eddie Kanneh, who was the SLA Secretary of State for Kenema.2415 However, he gave evidence that the RUF and the SLA did not work together in Kenema District because they did not take commands from each other.2416 According to Witness DBK-063, he was sent to Tongo along with other SLAs because the RUF were “not under control” and ‘Mosquito’ was stealing diamonds.2417 He testifĳied that Captain Kati, an SLA offfĳicer was killed when he went to Cyborg Pit to try and stop the mining, although this occurred prior to the witness’s arrival in Tongo Field.2418 1307. Having considered the cross-examination of Defence witnesses DAB-033 and DAB-147, the Trial Chamber fĳinds their testimony unreliable insofar as they

2407 DAB-147, Transcript 3 October 2006, p. 38. 2408 DAB-147, Transcript 3 October 2006, pp. 62–65. 2409 DAB-033, Transcript 25 September 2006, p. 42. 2410 DAB-033, Transcript 25 September 2006, p. 43, Transcript 2 October 2006, pp. 109–110. 2411 DAB-033, Transcript 25 September 2006, p. 43–44, Transcript 2 October 2006, p. 109. 2412 DAB-033, Transcript 2October 2006, p. 54. 2413 DAB-033, Transcript 25 September 2006, p. 44. 2414 DBK-063, Transcript 2 August 2006, pp. 21–22, 25. 2415 DBK-063, Transcript 2 August 2006, pp. 68–69. 2416 DBK-063, Transcript 2 August 2006, pp. 63–64. 2417 DBK-063, Transcript 2 August 2006, pp. 23–24. 2418 DBK-063, Transcript 2 August 2006, pp. 23–25, 52. The transcript records the name of this captain as ‘Yamao Kateh.’ The Trial Chamber instead adopts the spelling ‘Kati,’ as it is satis- fĳied that this is the same person referred to in the evidence of witness TF1-045. judgments 1545 both assert that the SLA had no involvement in the forced mining that occurred at Cyborg Pit. Witness DBK-063 did not state whether or not the AFRC were involved in mining operations. The Trial Chamber considers that the fact that these witnesses could testify only to RUF involvement in forced mining does not necessarily mean that the AFRC were not also engaging in the practice. Witness DAB-147 visited Tongo Field only twice and never went to Cyborg Pit.2419 There is no evidence that witness DAB-033 or DBK-063 ever visited Cyborg Pit. The Trial Chamber prefers the more detailed evidence of Prosecution witnesses TF1-062 and TF1-045 in relation to the involvement of the AFRC in forced labour at Cyborg Pit, as both these witnesses were involved in mining operations there for a signifĳi- cant period of time. 1308. The Trial Chamber notes the evidence of Witness DBK-063 that the two factions worked separately in Tongo Field and also that of DAB-033 that the SLAs were under RUF control. Having accepted that the evidence above establishes beyond reasonable doubt that the AFRC were involved in mining operations using forced civilian labour at Cyborg Pit, the Trial Chamber fĳinds it unnecessary to determine conclusively the working dynamic between the two factions, which was often frictional. (ii) Findings 1309. On the basis of the preceding evidence, and without predetermining the individual responsibility of the three Accused, the Trial Chamber is satisfĳied beyond reasonable doubt that between about 1 August 1997 and about 31 January 1998, the AFRC/RUF forced an unknown number of civilians to mine for diamonds at Cyborg Pit in Tongo Field in Kenema District. The Trial Chamber accordingly fĳinds that the elements of enslavement, as charged in Count 13, are established. (b) Kono District (about 14 February 1998 – January 2000) 1310. The Prosecution alleges that “[b]etween about 14 February 1998 to January 2000, AFRC/RUF forces abducted hundreds of civilian men, women and children, and took them to various locations outside the District, or to locations within the District such as AFRC/RUF camps, Tombodu, Koidu, Wondedu, Tomendeh. At these locations the civilians were used as forced labour, including domestic labour and as diamond miners in the Tombodu area.”2420 1311. No evidence of enslavement has been adduced with respect to Tomendeh.2421 1312. In arriving at the following fĳindings of fact, the Trial Chamber has considered the available evidence, in particular the testimony of Prosecution witnesses

2419 DAB-147, Transcript 3 October 2006, p. 37. 2420 Indictment, para. 68. 2421 Rule 98 Decision, para. 236. 1546 part iv

TF1-072, TF1-216, TF1-334, TF1-198 and TF1-033 and Defence witnesses DAB-098, DAB-042 and DAB-131. (i) Tombodu 1313. Witness TF1-334 arrived in Koidu Town in Kono District in early March 1998.2422 He testifĳied that several days after his arrival, the AFRC/RUF began capturing civilians on the order of Johnny Paul Koroma, especially the strong men and the young women, from Tombodu, Yamadu and other surrounding villages in Kono District. Civilians who tried to escape were executed.2423 The AFRC/RUF used the civilians to carry their food, and trained some of them as soldiers for the movement.2424 1314. In March 1998, witness TF1-072 and his friend encountered seven soldiers in uniform near Gbaima while looking for food. Accompanying the soldiers was a civilian, tied with rope.2425 The soldiers tied up witness TF1-072 and his friend and forced them to walk to Gbaima. The witness states that he and his friend could not refuse the soldiers as they were ‘big men.’ On arrival at Gbaima, the two men were made to lie down. They overheard the armed soldier left to guard them being instructed to shoot them if they tried to escape.2426 1315. Witness TF1-072, his friend, and the other civilian who had been with the soldiers were then taken, still tied, into Gbaima. Witness TF1-072 observed many “bags and bundles” lying around the town. The men were untied and forced by the soldiers to carry these loads on their heads towards Tombodu.2427 Along the way, the soldiers encountered other civilians, whom they forced to join them, also making them carry loads on their heads.2428 In Tombodu the civilians, of whom by now there were fourteen, were taken to a compound where they were beaten.2429 The leader of the soldiers in the compound was called ‘Savage.’2430 ‘Savage’ mutilated Witness TF1-072’s right hand before he managed to escape.2431 1316. On 14 April 1998, witness TF1-216 and his three children were captured by a group of soldiers near Paema.2432 The soldiers tied up the witness and forced him and six other civilians to carry loads to Tombodu at gunpoint.2433 Upon arrival, the

2422 TF1-334, Transcript 20 May 2005, p. 3. 2423 TF1-334, Transcript 20 May 2005, pp. 4–5. 2424 TF1-334, Transcript 20 May 2005, pp. 5, 34. 2425 TF1-072, Transcript 1 July 2005, p. 7. 2426 TF1-072, Transcript 1 July 2005, p. 8. 2427 TF1-072, Transcript 1 July 2005, pp. 9–10. 2428 TF1-072, Transcript 1 July 2005, pp. 10–12. 2429 TF1-072, Transcript 1 July 2005, pp. 12–18. 2430 TF1-072, Transcript 1 July 2005, pp. 14. 2431 TF1-072, Transcript 1 July 2005, pp. 19–20. 2432 TF1-216, Transcript 27 June 2005, pp. 87–88. 2433 TF1-216, Transcript 27 June 2005, pp. 89–90. judgments 1547 seven were tied together outside a house.2434 At that point, a group of soldiers arrived with some other civilians. ‘Stafff Alhaji’ whom the soldiers had identifĳied as their leader, ordered the soldiers to put the civilians in the house. Witness TF1-216 overheard one of the soldiers reporting to ‘Stafff Alhaji’ that there were 53 people in the house.2435 ‘Stafff Alhaji’ told Witness TF1-216 and four of the other civilians that they were to be used to take a message to President Kabbah. All fĳive then had their hands amputated before being released.2436 1317. At an unspecifĳied time after March 1998, witness DAB-098 and fĳive others were captured by “rebels” near Gbongbor Junction while looking for food. Witness DAB-098 states that the “rebels” shot around them and there was no way for them to escape.2437 The “rebels” took the group of civilians to Tombodu, where they were kept in a house for six months and subjected to regular beatings.2438 Whilst in captivity, witness DAB-098 and the other civilians were required to go fĳishing, clean, carry goods, and collect food for the “rebels.”2439 He stated that while under their command, he felt that he had to accept anything they did to him or otherwise they would kill him.2440 During his captivity, witness DAB-098 learnt that the leader of the “rebels” was named ‘Savage.’2441 1318. The Trial Chamber recalls its fĳinding that ‘Savage’ was an AFRC commander in charge of a battalion of mixed AFRC/RUF soldiers in Tombodu in the period from approximately mid March until at least the end of April 1998, with ‘Stafff Alhaji’ as his deputy. 1319. Witness TF1-033 testifĳied that in March 1998, he was abducted in Tombodu, along with many other civilians, by AFRC fĳighters under the command of ‘Gullit,’ whose subordinate was ‘Savage.’ He stated that he both saw and heard ‘Gullit’ issue the command to abduct the civilians, and that the AFRC fĳighters told him that if he tried to escape they would kill him.2442 In April 1998, when ‘Gullit’ ordered the AFRC fĳighters to retreat to Yaya due to the advance of ECOMOG witness TF1-033 was forced to accompany them.2443 The witness remained with the AFRC until the retreat from Freetown in 1999.2444

2434 TF1-216, Transcript 27 June 2005, p. 91. 2435 TF1-216, Transcript 27 June 2005, p. 92. 2436 TF1-216, Transcript 27 June 2005, pp. 93–94. 2437 DAB-098, Transcript 4 September 2006, p. 14. 2438 DAB-098, Transcript 4 September 2006, pp. 17–19, 28. 2439 DAB-098, Transcript 4 September 2006, pp. 20–21, 30–31. The Transcript gives the location as ‘Jagbema Fiama,’ however the Trial Chamber is satisfĳied that this is a misspelling of the location in Kono ‘Jagbwema Fiama.’ 2440 DAB-098, Transcript 4 September 2006, p. 51. 2441 DAB-098, Transcript 4 September 2006, pp. 22–23, 37–38, 52. 2442 TF1-033, Transcript 11 July 2005, pp. 9–10. 2443 TF1-033, Transcript 11 July 2005, p. 13. 2444 TF1-033, Transcript 11 July 2005, p. 66. 1548 part iv

1320. Under cross-examination, witness TF1-033 gave only very general information in relation to his abduction. He repeated his assertion that upon arrival in Tombodu, he encountered ‘Gullit’ and AFRC fĳighters and simultaneously overheard ‘Gullit’ ordering the fĳighters to abduct him.2445 He stated that there were many other abducted civilians in Tombodu, and they stayed in houses under the strict supervision of AFRC fĳighters.2446 Witness TF1-033 lived in the house of Stafff Alhaji.2447 He did not specify what, if anything, the civilians did in this period or describe any incidents that occurred involving himself or other abductees. 1321. The Kanu and Brima Defence submit that witness TF1-033’s testimony in relation to his abduction is unreliable as the witness was not an abducted civilian, but rather an active AFRC supporter.2448 The Brima Defence further submits that the evidence of witness TF1-033 is unreliable as he was a former AFRC member who stood to gain from embellishing his testimony to the detriment of the three Accused.2449 1322. Witness TF1-033’s evidence that abductions of civilians were taking place in Tombodu in the period after February 1998 is corroborated by witnesses TF1- 072, TF1-216 and TF1-334. However, the Trial Chamber is of the view that the evidence that the witness himself was forcibly captured in Tombodu is not probative, for several reasons. First, in a prior statement to the Prosecution, the witness stated that he decided to flee from Freetown with the AFRC troops in February 1998.2450 Secondly, the Trial Chamber has found on the basis of reliable evidence from other witnesses that the Accused Brima was not in Kono in this period.2451 Thirdly, the witness’s account of his own abduction and captivity lacked the detail contained in the testimony of witnesses TF1-072, TF1-216 and DAB-098. The Trial Chamber therefore does not rely on the evidence of witness TF1-033 in making fĳindings on enslavement in Kono District. 1323. The Trial Chamber notes that witnesses TF1-334 and DAB-098 gave evidence of diamond mining in the Tombodu area, however their evidence concerned the AFRC government period and therefore falls outside the Indictment period for Kono District for Count 13.2452 No other evidence was adduced of diamond mining in the Tombodu area.

2445 TF1-033, Transcript 11 July 2005, p. 135–136. 2446 TF1-033, Transcript 11 July 2005, pp. 76–77. 2447 TF1-033, Transcript 11 July 2005, p. 78. 2448 Kanu Defence Final Brief paras. 140, 389; Brima Defence Closing Arguments, Transcript 7 December 2006, pp. 96–97. 2449 Brima Defence Final Brief, paras. 34, 47. 2450 TF1-033, Transcript 11 July 2005, pp. 139–142. 2451 Role of the Accused, paras. 333–338, 343–343. 2452 See TF1-334, Transcript 17 May 2005, pp. 52–54, Transcript 20 May 2005, p. 40–43; DAB-098, Transcript 4 September 2006, p. 50. judgments 1549

(ii) Koidu 1324. In July 1998, witness DAB-131 and his family were captured, along with an unspecifĳied number of other civilians, in the bush around Tuyor, near Koidu.2453 Their captors identifĳied themselves as RUF soldiers.2454 After they were captured, they pounded husk rice for the RUF and were forced to carry it into Koidu Town on their heads.2455 1325. Upon arrival in Koidu, witness DAB-131 and his group of civilians were sent by an RUF commander to a mining unit in an unspecifĳied location in Kono District and told that they would work for the RUF.2456 Witness DAB-131 testifĳied that there were 240 civilians mining diamonds for the rebels, guarded by RUF soldiers. He knew the number of civilians since they were counted every morning. The commander of the soldiers introduced himself to the civilians as RUF Major Kumba. Any diamonds found were handed over to him.2457 1326. The civilians mined for the RUF for three months, until ECOMOG displaced the RUF from Kono. At this point, witness DAB-131 and an unspecifĳied number of other civilians were forced to carry loads on their heads for the RUF from Koidu Town to Burkina (also known as Buedu) in Kailahun District.2458 The civilians walked for two days and two nights, accompanied by the RUF, before arriving in Burkina.2459 He observed the RUF soldiers killing civilians who were unable to carry their loads. Their loads were then transferred on to the heads of others. In addition, the soldiers would confĳiscate clothing and footwear that was in good condition from the civilians.2460 The witness testifĳied that by the time the group arrived in Kailahun, it included over 500 civilians.2461 1327. After an unspecifĳied time in Burkina, witness DAB-131 and some 230 other civilians were forced to carry loads for the rebels back to Kono, to a location that the witness refers to as ‘Joe Bush.’2462 At ‘Joe Bush’ the civilians were forced to mine diamonds, supervised by armed RUF guards.2463 The witness stated that diamonds found at the mine were taken by escort to Sam Bockarie, since the civilians were told that everything they recovered was for the RUF movement.2464

2453 DAB-131, Transcript 14 September 2006, pp. 36–37, 69. 2454 DAB-131, Transcript 14 September 2006, p. 36. 2455 DAB-131, Transcript 14 September 2006, pp. 37, 70. 2456 DAB-131, Transcript 14 September 2006, pp. 39–40. 2457 DAB-131, Transcript 14 September 2006, pp. 40–41. 2458 DAB-131, Transcript 14 September 2006, pp. 42–43. 2459 DAB-131, Transcript 14 September 2006, pp. 42–43. 2460 DAB-131, Transcript 14 September 2006, pp. 43–44, 72. 2461 DAB-131, Transcript 14 September 2006, pp. 46–47, 49. 2462 DAB-131, Transcript 14 September 2006, pp. 50–51. 2463 DAB-131, Transcript 14 September 2006, pp. 51–53. 2464 DAB-131, Transcript 14 September 2006, p. 53. 1550 part iv

Witness DAB-131 and the other civilians mined at Joe Bush for three to four months, until December 1998 when the rebels moved them to Koidu Town.2465 The witness remained a captive of the RUF until “the ceasefĳire.”2466 (iii) Wondedu 1328. At an unspecifĳied time after February 1998, witness TF1-217 observed that RUF rebels brought around ten girls to Wondedu in open vehicles.2467 He saw one of the girls crying. At that same time, the witness’s sister was forcefully captured by RUF Captain Bai Bureh, who said that she was his wife. Witness TF1-217 testifĳied that his sister did not want to go with Bureh, but the witness did not dare to intervene because Bureh threatened that he would take either his life or his sister.2468 The witness did not know the fate of his sister or the ten girls. 1329. The Trial Chamber recalls that evidence of abductions alone is insufffĳicient to prove enslavement.2469 In the absence of other evidence of enslavement in Wondedu, the Trial Chamber makes no fĳinding of enslavement in respect of this location. (iv) Other locations in Kono District 1330. In late 1999, witness DAB-042 was captured by RUF rebels in Yengema.2470 The witness, along with many other civilians, was taken to Kailahun and forced to carry loads, consisting of objects such as beds, baling machines, rice and beans, to the Mende land area.2471 The witness remained with the rebels for three months.2472 1331. Around mid-1998, witness TF1-198 and her family met a group of around seven armed “soldiers” in Koiduwar, who tied up her husband and forced him, along with fĳive other men, to carry loads on their heads to Yardu Gbensa.2473 1332. Witness DAB-025 was captured by RUF rebels in Mortema in an unspeci- fĳied year and forced to undergo military training and work at an RUF checkpoint near Yengema.2474 As the Trial Chamber was unable to ascertain the time period in which these events occurred, the Trial Chamber does not rely on this evidence.

2465 DAB-131, Transcript 14 September 2006, pp. 53–57. 2466 DAB-131, Transcript 14 September 2006, p. 72. The reference to “the ceasefĳire” is likely to refer to the May 1999 ceasefĳire which preceded the 1999 Lome Peace Accord. However, the witness’s testimony did not make this clear. 2467 The transcript gives the location as ‘Wendedu,’ however the Trial Chamber is satis- fĳied that this is the same location as ‘Wondedu,’ which is the spelling used in the Indictment. 2468 TF1-217, Transcript 17 October 2005, pp. 10–11. 2469 Factual Findings, Enslavment, para. 1285. 2470 DAB-042, Transcript 15 September 2006, pp. 83–85, 95. 2471 DAB-042, Transcript 15 September 2006, pp. 85–86. 2472 DAB-042, Transcript 15 September 2006, p. 84. 2473 TF1-198, Transcript 28 June 2005, pp. 12–13. 2474 DAB-025, Transcript 28 July 2006, pp. 95–107. judgments 1551

(v) Findings 1333. In light of the foregoing evidence, the Trial Chamber is satisfĳied beyond reasonable doubt that between about 14 February 1998 to January 2000, an unknown number of civilians were abducted and used as forced labour in various locations in Kono District, including Tombodu, by AFRC/RUF forces under the command of ‘Savage.’ The Trial Chamber is further satisfĳied that in this same period, RUF forces abducted an unknown number of civilians and used them as forced labour at various locations in Kono District, including the RUF camp known as ‘Joe Bush,’ Koidu Town and Yengema. The Trial Chamber accordingly fĳinds, without predetermining the individual responsibility of the three Accused, that the elements in relation to Count 13 have been established. (c) Koinadugu District (about February 1998–30 September 1998) 1334. The Prosecution alleges that “[b]etween about 14 February 1998 and 30 September 1998, at various locations including Heremakono, Kabala, Kumala (or Kamalu), Koinadugu, Kamadugu and Fadugu, members of the AFRC/RUF abducted an unknown number of men, women and children and used them as forced labour.”2475 1335. No evidence of enslavement was led in respect of Kamadugu and Heremakono.2476 1336. In arriving at the following fĳindings of fact, the Trial Chamber has taken into consideration the available evidence, in particular the testimony of Prosecution witnesses TF1-153, TF1-094, TF1-209 and TF1-133 and Defence witnesses DAB-089, DAB-081, DAB-082, DAB-078, DAB-088, DAB-090 and DAB-085. 1337. The Trial Chamber has considered the evidence of witnesses TF1-209 and TF1-094 in its fĳindings under Count 9.2477 The evidence contained therein establishes beyond reasonable doubt that these witnesses were also enslaved by AFRC troops in Koinadugu District. Their evidence is discussed below insofar as it relates to the abduction and forced labour of other civilians in Koinadugu District.

(i) Kabala 1338. Witness TF1-209 testifĳied that during the rainy season in 1998, a number of other civilians were captured by “juntas” along with herself, near Kabala.2478 The ‘juntas’ took rice and ground nuts from the civilians and forced them to carry these items into Kabala town.2479 En route, other civilians were captured and made to

2475 Indictment, para. 69. 2476 Rule 98 Decision, para. 236. 2477 Factual Findings, Outrages on Personal Dignity, paras. 1127–1133. 2478 TF1-209, Transcript 7 July 2005, pp. 31–32. 2479 TF1-209, Transcript 7 July 2005, pp. 36–37. 1552 part iv carry loads.2480 Upon arriving in Kabala town, the civilians were taken to a man named ‘Mongo’ who was dressed in combat uniform. ‘Mongo’ wrote down their names so that none of them could go missing.2481 Witness TF1-209 was taken to Koinadugu Town and ‘married’ to a man named Jabie. She gave no further evidence regarding the other civilians.

(ii) Kumala 1339. The available evidence of abductions and forced labour in Kumala consisted of the testimony of Prosecution witness TF1-133. The Trial Chamber has considered the evidence of this witness in its fĳindings under Count 9.2482 The evidence contained therein establishes beyond reasonable doubt that she was also enslaved by AFRC troops in Koinadugu District. (iii) Koinadugu 1340. At an unspecifĳied time in 1998, DAB-089 was abducted at gun point near Koinadugu by persons he identifĳied only as ‘gunmen’ and forced to join a group of other civilians carrying loads to Koinadugu Town.2483 Upon arrival in Koinadugu, the witness was handed over to a man named Albert, who threatened that he would kill him if he escaped and marked his forehead and chest with ‘RUF.’2484 Witness DAB-089 remained with Albert for eight days, in which time he followed orders to carry loads of food and communications equipment and logged wood.2485 He overheard conversations in which Albert referred to his leaders as ‘Superman’ and SAJ Musa.2486 Witness DAB-089 then managed to escape.2487 1341. In about August 1998, witness DAB-081 was captured by RUF rebels near Koinadugu.2488 The rebels made the witness take them at gunpoint to Dankawalli village and then the following day to Koinadugu.2489 In Koinadugu, the witness was housed with 50 other abductees and kept captive for several months.2490 He testi- fĳied that while he worked for the RUF, both RUF and SLA fĳighters used civilians for labour.2491 The captives were forced to search for food for the RUF and SLA troops in Koinadugu. Abductees also had to build over 20 huts and guard posts along the

2480 TF1-209, Transcript 7 July 2005, p. 37. 2481 TF1-209, Transcript 7 July 2005, pp. 37–38. 2482 Factual Findings, Outrages on Personal Dignity, paras. 1115–1126. 2483 DAB-089, Transcript 24 July 2006, pp. 50–51. 2484 DAB-089, Transcript 24 July 2006, pp. 52–53. 2485 DAB-089, Transcript 24 July 2006, pp. 54–55. 2486 DAB-089, Transcript 24 July 2006, p. 55. 2487 DAB-089, Transcript 24 July 2006, p. 56. 2488 DAB-081, Transcript 20 July 2006, p. 84. 2489 DAB-081, Transcript 20 July 2006, p. 85. 2490 DAB-081, Transcript 20 July 2006, pp. 85–86. 2491 DAB-081, Transcript 20 July 2006, pp. 89–90, Transcript 21 July 2006, p. 10. judgments 1553 road to Koinadugu for the RUF fĳighters.2492 The RUF flogged their civilian workers, including witness DAB-081, with sticks.2493 1342. At an unspecifĳied time after February 1998, witness TF1-153 and other civilians of Yirayie Town were captured by RUF commander Komba Gbundema and his men in the bush near Yirayie.2494 The men ordered the civilians to hand over all their food and property.2495 The men carried guns and the civilians were told that anyone who ran away would be killed. Gbundema ordered witness TF1-153 and the other civilians to carry the property which had been taken from them to Yirayie Town.2496 1343. Upon arrival in Yirayie, witness TF1-153 observed women pounding rice, children carrying loads on their heads and other commanders arriving from the bush with civilians.2497 Witness TF1-153 states that the commanders and soldiers in Yirayie were from both the AFRC and the RUF. The Trial Chamber accepts that the witness was able to distinguish between the two factions as he came from a family background of afffĳiliation with the military.2498 That night, Witness TF1-153 was forced by Gbundema’s men to carry one bag of rice on his head to Koinadugu.2499 He was released upon his arrival because by chance one of the soldiers there was his cousin.2500 (iv) Other locations in Koinadugu District 1344. On 22 May 1998, witness DAB-078 was captured during an attack on his town in Koinadugu District by three armed men, one wearing a soldier’s uniform and the other two wearing civilian clothing.2501 He was forced to carry loads, along with about 15 other captured civilians, on the road to Makeni.2502 He overheard his captors saying that their leaders were ‘Captain Ishmael’ and ‘Colonel Born Trouble.’2503 ‘Captain Ishmael’ was a deputy to ‘Savage.’2504 Witness DAB-078 overheard in discussion that both ‘Ishmael’ and ‘Savage’ were SLA soldiers.2505 When the group reached Kanikay that same night, the witness managed to escape.2506

2492 DAB-081, Transcript 20 July 2006, pp. 89–90. 2493 DAB-081, Transcript 20 July 2006, p. 91. 2494 TF1-153, Transcript 22 September 2005, pp. 41–42, 44–45. 2495 TF1-153, Transcript 22 September 2005, p. 45. 2496 TF1-153, Transcript 22 September 2005, pp. 47–48. 2497 TF1-153, Transcript 22 September 2005, p. 49. 2498 TF1-153, Transcript 22 September 2005, pp. 6–7. 2499 TF1-153, Transcript 22 September 2005, p. 51. 2500 TF1-153, Transcript 22 September 2005, pp. 52–53. 2501 DAB-078, Transcript 6 September 2006, pp. 12–13. Name of his town admitted under seal: Exhibit D.23. 2502 DAB-078, Transcript 6 September 2006, pp. 13–14, 18, 54. 2503 DAB-078, Transcript 6 September 2006, p. 22. 2504 DAB-078, Transcript 6 September 2006, pp. 51–52. 2505 DAB-078, Transcript 6 September 2006, p. 57. 2506 DAB-078, Transcript 6 September 2006, pp. 21–22. 1554 part iv

1345. Witness DAB-085 testifĳied that between early September 1998 until about March 1999, ‘Savage’ and his men, including ‘Ishmael,’ regularly looted his town in Koinadugu District.2507 ‘Savage’s men would force young people from the witness’s community to carry loads from the town to their base at Kamabai.2508 As the Indictment period for Koinadugu District for Count 13 ends at 30 September 1998, the Trial Chamber relies on the witness’s evidence primarily to corroborate the evidence of enslavement of other witnesses in relation to Koinadugu District. 1346. At an unspecifĳied time after February 1998, rebels wearing civilian clothing captured witness DAB-082 and 14 other civilians in their village in Koinadugu District.2509 The following day, the rebels sent witness DAB-082 and other civilians on food-fĳinding missions.2510 According to the witness, the civilians were told by the rebels to build a farm hut for themselves to use, and the rebels decided to call this place “Joe Bush.” Every morning, the rebels would “bring out” the civilians and tell them to go to “Joe Bush.” The civilians would spend the day there and return in the evening.2511 1347. While the Trial Chamber found the witness credible, his evidence lacked detail. It is unclear whether the civilians were forced to obey the instructions given to them by the rebels or whether their autonomy was restricted in any other aspect. The witness did not explain what he and other civilians did at “Joe Bush,” and therefore there is no evidence that the rebels accrued any gain from the civilians’ activities. In the absence of such indicia, the Trial Chamber fĳinds that it is not established beyond reasonable doubt that witness DAB-082 or other civilians in his company were used as forced labour. 1348. Witness DAB-090 testifĳied that at an unspecifĳied time after April 1998, rebels attacked Yifĳin. They remained in Yifĳin until the end of the year when they were disarmed.2512 Throughout this period, the rebels used the children of Yifĳin to carry rice and other looted goods in loads on their heads to Kayima. The children told the witness that if they did not walk very fast on these trips they were seriously beaten.2513 The rebels also forced the civilians of Yifĳin to cultivate a rice farm for them. The civilians were made to harvest the rice and then hand it over to the rebels.2514

2507 The witness gave the name of his town in closed session: DAB-085, Transcript 20 July 2006. pp. 43–44. 2508 DAB-085, Transcript 20 July 2006, pp. 43–44. 2509 The name of the witness’s village was given in closed session: DAB-082, Transcript 21 July 2006, pp. 62–64, 70–71. 2510 DAB-082, Transcript 21 July 2006, pp. 72–73. 2511 DAB-082, Transcript 21 July 2006, pp. 74–78. 2512 DAB-090, Transcript 24 July 2006, pp. 97, 102–103. 2513 DAB-090, Transcript 24 July 2006, pp. 101–102. 2514 DAB-090, Transcript 24 July 2006, p. 104. judgments 1555

1349. Witnesses TF1-094 and DAB-088 testifĳied that in Yomadugu in around August 1998, there were many civilian men, women and children captured from surrounding villages. The civilians were forced to work for the rebels and SLAs, performing tasks such as harvesting rice in the bush, pounding rice, laundering and cooking. If civilians refused to work, they would be beaten or killed, and many such punishments were meted out.2515 (v) Findings 1350. In light of the preceding evidence, the Trial Chamber is satisfĳied beyond reasonable doubt that between about 14 February 1998 and 30 September 1998, an unknown number of civilians were abducted and used as forced labour by AFRC/ RUF forces in various locations in Koinadugu District, including Kabala, Kumala, Koinadugu, Yifĳin and Yomadugu. The Trial Chamber accordingly fĳinds, without predetermining the individual responsibility of the three Accused, that the elements in relation to Count 13 have been established. (d) Bombali District (about May 1998–31 November [sic] 1998) 1351. The Indictment alleges that “[b]etween about 1 May 1998 and 31 November [sic] 1998, in Bombali District, members of the AFRC/RUF abducted an unknown number of civilians and used them as forced labour.”2516 1352. The evidence adduced on Bombali District concerns the alleged enslavement of civilians by AFRC troops between approximately April and July 1998 during their movement from Mansofĳinia (Koinadugu District) to Rosos (Bombali District) under the command of the Accused Brima, accompanied by the Accused Kamara and Kanu.2517 The Trial Chamber will consider fĳirst the evidence pertaining to incidents which took place during the journey to Rosos and then the evidence regarding events that occurred while the troops were at Rosos. 1353. In arriving at the following fĳindings, the Trial Chamber has considered the evidence adduced, in particular the testimony of Prosecution witnesses George Johnson, TF1-334, TF1-184, TF1-157, TF1-158, TF1-055 and TF1-058 and Defence witnesses DBK-101, DBK-100, DBK-089 and DBK-094. 1354. The Trial Chamber recalls that Prosecution witnesses TF1-157 and TF1-158 were abducted from Bornoya in 1998 by AFRC troops en route to Rosos and used as child soldiers. Their evidence, considered in the Trial Chamber’s fĳindings on Count 12, establishes beyond reasonable doubt that these witnesses were enslaved in Bombali District.2518 Their testimony is considered below insofar as it

2515 TF1-094, Transcript 13 July 2005, pp. 31–32; DAB-088, Transcript 24 July 2006, pp. 40–41. 2516 Indictment, para. 62. 2517 See Role of Accused, para. 465 for further detail on the journey from Mansofĳinia to Rosos. 2518 Facts and Findings Child Soldiers, paras. 1252–1258. 1556 part iv demonstrates that an unknown number of other civilians were abducted and used as forced labour in Bombali District. (i) Journey to Rosos 1355. Witness TF1-334 testifĳied that ‘Gullit’ ordered at Mansofĳinia that any strong civilian encountered on the journey north should be captured and made part of the troop.2519 1356. Witnesses DBK-101 and DBK-100 testifĳied that fĳighters abducted a number of civilians in the attack on Kamagbengbeh in May 1998. When some of the abductees subsequently escaped and returned to the village, they told the other civilians that the attackers had forced them, under threat of violence, to carry loads to Kamabai.2520 1357. Witnesses living in Karina at the time of the AFRC forces’ attack testifĳied that the troops abducted a number of civilians, some of whom were personally known to the civilians.2521 Witness TF1-058 was captured during the attack on Karina and ordered to sit with a group of other civilians being guarded by armed “juntas.”2522 The “juntas” instructed some of the civilians to stand up and form two lines. The men were forced to carry goods and the women to follow behind. All of the women were naked, except for one who was wearing a loincloth. Armed men accompanied the civilians.2523 1358. Witness TF1-334 was present during the attack on Karina, which he stated took place in the early morning, from around 2am until 7am.2524 He testi- fĳied that around 35 women were abducted in Karina and placed under the command of one Woyoh, who stripped the women naked.2525 Small children were also abducted. Woyoh then handed control of the women to the Chief of Stafff ‘Five- Five.’2526 ‘Gullit’ subsequently ordered, in the presence of the witness, that the children be distributed among the various commanders.2527 After the attack on Karina, the soldiers arrived in Gbendembu, where they captured several young men and women.2528

2519 TF1-334, Transcript 23 May 2005, p. 17. 2520 DBK-100, Transcript 17 July 2006, pp. 13–16; DBK-101, Transcript 14 July 2006, pp. 72–77. 2521 The names of twelve women in total were given to the Trial Chamber in evidence by the various witnesses: TF1-055, Transcript 12 July 2005, pp. 134–137; DBK-089, Transcript 14 July 2006, pp. 22, 31–35, 46; Exhibit D16 (under seal); DBK-094, Transcript 11 July 2006, pp. 34, 40, 52–55, 73; TF1-058, Transcript 14 July 2005, p. 67. 2522 TF1-058, Transcript 14 July 2005, p. 61–64. 2523 TF1-058, Transcript 14 July 2005, p. 63–65. 2524 TF1-334, 23 May 2005, p. 75. 2525 TF1-334, 23 May 2005, pp. 72–73. 2526 TF1-334, 23 May 2005, p. 73. 2527 TF1-334, 23 May 2005, pp. 74–75. 2528 TF1-334, Transcript 23 May 2005, p. 84. judgments 1557

1359. While the evidence above relates primarily to abductions, witnesses George Johnson and TF1-157, who were travelling with the troops, testifĳied that the abducted civilians were used as forced labour. Johnson stated that hundreds of civilians were forcefully captured in the villages on the journey and the women were used as cooks, while the men were either used to carry arms, ammunition and food, or trained as fĳighters.2529 Witness TF1-157 stated that civilians were forcefully abducted in Bornoya, Daraya, Mayogbo, Kagbemneh, Kamanameh, Kamatelun, Kamabai and Karina in Bombali District and compelled to carry looted goods for the rebels to Rosos.2530 (ii) Rosos 1360. While at Rosos, the troops staged an operation to nearby village of Gbendembu, where additional civilians were abducted.2531 The troops remained at Rosos for three months.2532 Civilian abductees were used in this period to perform domestic labour, including food fĳinding, fetching water and cleaning dishes.2533 1361. Abductees were also forced to undergo military training.2534 Trainees that attempted to escape were killed.2535 The duration of the training program at Rosos was three weeks.2536 The exercises encompassed weapon handling, tactics, fĳiring and maneuvering.2637 Witness George Johnson estimated that approximately 520 civilians, including both adults and children, were trained in this manner at Rosos.2538 At the completion of the training program, the civilians were integrated into the battalions by FAT Sesay.2539 1362. The Trial Chamber notes that witness TF1-184, who travelled with SAJ Musa’s group of troops to meet the Accused Brima’s group at ‘Colonel Eddie Town,’ testifĳied that SAJ Musa’s group was accompanied by civilians who were free to leave at any time without fear of reprisal.2540 The Kanu Defence submits that these civilians were not subjected to enslavement.2541 Given that the AFRC faction led by the Accused Brima was not with SAJ Musa’s group or subject to SAJ Musa’s

2529 George Johnson Transcript 15 September 2005, pp. 58–59, 64. 2530 TF1-157, Transcript 22 July 2005, p. 66–87. 2531 George Johnson, Transcript 15 September 2005, p. 63; TF1-158, Transcript 26 July 2005, p. 44. 2532 TF1-334, Transcript 23 May 2005, p. 103. 2533 TF1-158, Transcript 26 July 2005, pp. 38–39; TF1-157, Transcript 22 July 2005, pp. 96, 104; Transcript 25 July 2005, pp. 9–10. 2534 TF1-334, Transcript 24 May 2005, p. 24; TF1-158, Transcript 26 July 2005, pp. 39–40; TF1-157, Transcript 25 July 2005, pp. 3–4. 2535 George Johnson, Transcript 15 September 2005, pp. 64–65. 2536 TF1-334, Transcript 24 May 2005, p. 28; George Johnson, Transcript 15 September 2005, p. 65. 2537 George Johnson, Transcript 15 September 2005, pp. 65–66. 2538 George Johnson, Transcript 15 September 2005, p. 66. 2539 George Johnson, Transcript 15 September 2005, pp. 65–66. 2540 TF1-184, Transcript 29 September 2005, pp. 32, 35–37. 2541 Kanu Defence Final Brief, paras. 85–86. 1558 part iv command until after they departed from Rosos, this evidence is not material to the Trial Chamber’s consideration of the above evidence on Bombali District. (iii) Findings 1363. In light of the foregoing evidence, the Trial Chamber is satisfĳied beyond reasonable doubt that between about 1 May 1998 and 30 November 1998, an unknown number of civilians were abducted and used as forced labour, as well as being forced to undergo military training, by AFRC troops in various locations in Bombali District including Bornoya, Kamagbengbeh, Karina, Daraya, Mayogbo, Kagbemneh, Kamanameh, Kamatelun, Kamabai, Rosos and Gbendembu. The Trial Chamber accordingly fĳinds, without predetermining the individual responsibility of the three Accused, that the elements in relation to Count 13 have been established in Bombali District. (e) Kailahun District (all times relevant to Indictment) 1364. The Indictment alleges that “[a]t all times relevant to the Indictment, captured men, women and children were brought to various locations within the District and used as forced labour.”2542 1365. In reaching the following factual fĳindings, the Trial Chamber has considered the evidence adduced, in particular the testimony of Prosecution witnesses TF1-113 and TF1-114 and Defence witnesses DAB-135, DAB-140 and DAB-027. 1366. The Trial Chamber has divided the evidence on Kailahun District into two periods, the fĳirst being the AFRC government period from May 1997 to February 1998, and the second the period from February 1998 until January 2000. (i) May 1997 – February 1998 1367. The Trial Chamber notes the evidence of witness TF1-113 that 67 persons accused by AFRC/RUF soldiers of being Kamajors were detained and used as forced labour in Kailahun Town for approximately two or three months during this period. As it has not been established beyond reasonable doubt that these persons were in fact civilians, the Trial Chamber makes no fĳinding of enslavement on this evidence.2543 1368. Around May 1997, witness DAB-135 was captured with 19 other civilians in the fĳields near Jagbwema Town by armed RUF rebels wearing mixed combat and civilian clothing.2544 The rebels took thirteen of the civilians to Jagbwema Town where they met other civilians that had been captured. Witness DAB-135 was taken before the rebel leader Major Kangoma, who questioned him, kicked him

2542 Indictment, para. 71. 2543 TF1-113, Transcript 18 July 2005, pp. 84–89. See consideration of this evidence in Factual Findings, Unlawful Killings, paras. 860–861, supra. 2544 DAB-135, Transcript 11 September 2006, pp. 34, 37–38, 46–47, 55–56. judgments 1559 and hit him with a gun butt.2545 A rebel named ‘Captain Death Squad’ then took witness DAB-135 and two of his sisters and ordered them to pound a drum of husk rice and launder clothes for him.2546 1369. The following day the civilians were taken to Tueyor, where they were again forced to pound rice and launder clothes, without being fed.2547 Three days later, witness DAB-135 was ordered to go to Buedu in Kailahun Chiefdom with the rebels, carrying loads for them.2548 The witness spent about two days in Kailahun Chiefdom, working for the rebels while being given very little food.2549 The rebels then took witness DAB-135 back to Kono District, stopping along the way in a village called Manjama where the rebels forced the witness to pound rice and they captured other civilians.2550 Upon returning to Kono, the witness spent two years and six months with the rebels before being reunited with his family.2551 1370. In approximately May 1997, Witness DAB-140 was captured by rebels in the bush near Buedu and brought into Buedu Town. The rebels, whose commander was Sam Bockarie, required the witness, along with other civilians in Buedu, to “report for duty” every morning to a rebel leader.2552 One of the tasks that the witness was regularly forced to undertake was carrying heavy loads.2553 Specifĳically, the witness stated that the rebels used to take corrugated iron and doors from people’s houses in Buedu and force civilians, under threat of violence, to carry the iron to Liberia and the doors to Guinea.2554 Civilians who refused to take loads were beaten or killed.2555 (ii) February 1998 – January 2000 1371. Witness TF1-114, a military police adjutant in Buedu, testifĳied that the RUF engaged in forced labour after February 1998.2556 One of his duties was to take the names of civilians reporting for ‘government work.’ ‘Government work’ typically included working on commanders’ farms, constructing roads and carrying loads for commanders and was carried out involuntarily by civilians who received no remuneration.2557

2545 DAB-135, Transcript 11 September 2006, p. 42. 2546 DAB-135, Transcript 11 September 2006, p. 44. 2547 DAB-135, Transcript 11 September 2006, pp. 45–46. 2548 DAB-135, Transcript 11 September 2006, p. 47. 2549 DAB-135, Transcript 11 September 2006, pp. 48–49. 2550 DAB-135, Transcript 11 September 2006, pp. 50–51. 2551 DAB-135, Transcript 11 September 2006, p. 51. 2552 DAB-140, Transcript 19 September 2006, pp. 68–69. 2553 DAB-140, Transcript 19 September 2006, pp. 69–70. 2554 DAB-140, Transcript 19 September 2006, pp. 85–86. 2555 DAB-140, Transcript 19 September 2006, pp. 69–70. 2556 TF1-114, Transcript 14 July 2005, p. 128. 2557 TF1-114, Transcript 14 July 2005, pp. 129–130. 1560 part iv

1372. The Kanu Defence submits that the evidence of witness TF1-114 in relation to forced labour in Kailahun establishes that the responsibility for this crime falls to members of the RUF.2558 Under cross-examination, Witness TF1-114 gave confusing and contradictory evidence regarding his afffĳiliation with the SLA and RUF factions. He consistently asserted that throughout the period he worked in Buedu, he was a member of the RUF.2559 Accordingly, the Trial Chamber fĳinds that it has not been established beyond reasonable doubt that the AFRC was involved in the forced labour described. 1373. At an unspecifĳied time in 1998, witness DAB-027 and a group of other civilians were captured in the bush near Bendu by RUF rebels and taken to Jagbema village.2560 After several days, the civilians were taken to Tueyor, from where they were divided into two groups.2561 The younger ones, including the witness, were taken to Bunumbu Camp Lion Training Base, in Kailahun District.2562 Witness DAB-027 and many other captive civilians were given military training at Bunumbu.2563 Over a month later, the witness was then sent to Gandorhun, in Kono District, and some time later to Sengema. Throughout this time he was required to work for RUF rebels.2564 (iii) Findings 1374. In light of the foregoing evidence, the Trial Chamber is satisfĳied beyond reasonable doubt that during the Indictment period, RUF troops abducted an unknown number of civilians and used them as forced labour, including military training, in various locations in Kailahun District, including Jagbwema Town, Buedu and Bunumbu. The Trial Chamber accordingly fĳinds that the elements of enslavement, as charged in Count 13, are established. However, the Trial Chamber fĳinds that the Prosecution has not established beyond reasonable doubt that AFRC troops were involved in the enslavement of civilians in Kailahun District. (f) Freetown and the Western Area (6 January 1999–28 February 1999) 1375. The Indictment alleges that “[b]etween 6 January 1999 and 28 February 1999, in particular as the AFRC/RUF were being driven out of Freetown and the Western Area, members of the AFRC/RUF abducted hundreds of civilians, including a large number of children, from various areas in Freetown and the Western Area, including Peacock Farm, Kissy, and Calaba Town. These abducted civilians were used as forced labour.”2565

2558 Kanu Defence Final Brief, para. 383. 2559 TF1-114, Transcript 18 July 2005, p. 12. 2560 DAB-027, Transcript 4 September 2006, p. 105. 2561 DAB-027, Transcript 4 September 2006, p. 106. 2562 DAB-027, Transcript 4 September 2006, pp. 107–108, 113. 2563 DAB-027, Transcript 4 September 2006, pp. 109–112. 2564 DAB-027, Transcript 4 September 2006, pp. 112–115, Transcript 5 September 2006, pp. 2–4, 7. 2565 Indictment, para. 72. judgments 1561

1376. No evidence of enslavement was led in relation to Peacock Farm.2566 1377. In reaching the following fĳindings of fact, the Trial Chamber has taken into account the evidence adduced, in particular the testimony of Prosecution witnesses TF1-024, TF1-227, TF1-084, TF1-023, TF1-085, George Johnson and TF1-334. 1378. The Trial Chamber has considered the evidence of Prosecution witnesses TF1-023 and TF1-085 in its fĳindings under Count 92567 and TF1-157 under Count 12.2568 The evidence therein establishes beyond reasonable doubt that these witnesses were enslaved in Freetown and the Western Area. Their testimony is considered below insofar as it demonstrates that an unknown number of other civilians were abducted and used as forced labour. (i) Freetown 1379. Prosecution witness George Johnson testifĳied that as the AFRC faction advanced on Freetown on 6 January 1999, they were accompanied by a large number of abductees who carried arms, ammunition and foodstufffs.2569 1380. Approximately three weeks later, at a meeting of senior commanders in the Upgun area during the retreat from Freetown, ‘Gullit’ ordered that troops should begin abducting civilians, saying that this would attract the attention of the international community.2570 Witness TF1-334 subsequently observed troops breaking into houses and capturing civilians, especially young girls, and taking them to headquarters at the PWD.2571 The witness stated that at this time ‘almost everybody had civilians,’ including the commanders.2572 It was the responsibility of the abducting commander to ensure that the civilians were ‘well-secured,’ which the witness explained meant that they could not escape.2573 (ii) Kissy 1381. While the troop was based at Ferry Junction, during the retreat from Freetown, ‘Gullit’ issued a further order for abductions to start again.2574 As ECOMOG advanced towards Ferry Junction, the AFRC withdrew towards Kissy. In accordance with the Accused Brima’s orders, the troops captured civilians as they withdrew. These civilians were taken to Kissy Mental Home.2575

2566 Rule 98 Decision, para. 236. 2567 Facts and Findings, Outrages on Personal Dignity, paras. 2285–1159, supra. 2568 Facts and Findings, Child Soldiers, paras. 1252–1255, supra. 2569 George Johnson, Transcript 16 September 2005, pp. 8, 21. 2570 TF1-334, Transcript 14 June 2005, pp. 62–63. 2571 TF1-334, Transcript 14 June 2005, pp. 63–64. 2572 TF1-334, Transcript 14 June 2005, pp. 118–119. 2573 TF1-334, Transcript 14 June 2005, p. 119. 2574 TF1-334, Transcript 14 June 2005, pp. 77–78. 2575 TF1-334, Transcript 14 June 2005, pp. 79–80; Transcript 15 June 2005 pp. 8–9; George Johnson, Transcript 16 September 2005, pp. 52–53. 1562 part iv

1382. This evidence is corroborated by Witness TF1-084, who was in Kissy, Freetown, during the January 1999 retreat. He observed ‘rebels’ in military dress capturing people, putting them in vehicles and driving them away. The witness testifĳied that among those captured he recognised a 14 year old girl. He did not see any of the people captured again.2576 (iii) Calaba Town 1383. Witness TF1-024 testifĳied that on 8 January 1999, he was captured in Freetown by three armed rebel boys who were dressed in ECOMOG uniforms and taken to State House.2577 The rebel boys who had captured the witness beat him and then locked him inside the kitchen at State House.2578 The witness stated that there were 50 other civilians in the kitchen and they remained locked there for four days without food or water.2579 After four days, as ECOMOG approached State House, the rebels forced witness TF1-024 and the other civilians to accompany them on their flight out of Freetown. The rebels made the witness carry a heavy bomb to Calaba Town.2580 At Calaba Town, the rebels took the bomb from witness TF1-024 and he escaped.2581 1384. On the afternoon of 22 January 1999, witness TF1-023 and ten other civilians were captured by an armed young boy in Calaba Town. The boy was with a group of about 200 people, consisting of rebels and civilians whom the rebels had just captured.2582 The rebels took the civilians to a location that the witness was unable to identify. The civilians were told that they had been captured to use as human shields, but that they would not be harmed and so they should not be scared. The rebels gave the civilians food and the boy that had captured Witness TF1-023 gave her a small bag to carry. The following day, the civilians were taken to Allen Town, where they met around 300–400 armed rebels and around 100 other civilians.2583 The civilians were guarded by armed boys that prevented them from moving around freely.2584 (iv) Other locations in Freetown and Western Area 1385. In late January 1999, witness TF1-227 was captured in Kola Tree by soldiers who accused him of being a Kamajor.2585 Witness TF1-227 remained in captivity

2576 TF1-084, Transcript 6 April 2005, pp. 38–40. 2577 TF1-024, Transcript 7 March 2005, pp. 43–45, 63–65. 2578 TF1-024, Transcript 7 March 2005, p. 44. 2579 TF1-024, Transcript 7 March 2005, pp. 48–49. 2580 TF1-024, Transcript 7 March 2005, pp. 48, 50–51, 53, 81. 2581 TF1-024, Transcript 7 March 2005, p. 53. 2582 TF1-023, Transcript 9 March 2005, pp. 30–31. 2583 TF1-023, Transcript 9 March 2005, pp. 32–34. 2584 TF1-023, Transcript 9 March 2005, p. 35. 2585 TF1-227, Transcript 8 April 2005, p. 96. judgments 1563 for 10 months. At Kola Tree, there were about 200 civilians who were forced by the AFRC to join them in the retreat to Benguema.2586 1386. While the above evidence relates primarily to abductions, the Trial Chamber is satisfĳied on the basis of the following evidence that AFRC soldiers used the civilians abducted during the retreat from Freetown as forced labour. 1387. Witness TF1-227 testifĳied that during the retreat to Benguema, AFRC soldiers used civilians to carry loads, perform domestic tasks or act as guards.2587 Witnesses TF1-334 and TF1-227 testifĳied that when the troops arrived at Benguema, they were accompanied by several hundred civilians who had been abducted in Freetown. During the month in which the troops were based there, the civilians went on food fĳinding missions, pounded rice, carried looted items and participated in cooking.2588 Witness TF1-334 stated that the civilians were obliged to perform these tasks because there was no way that they could escape.2589 1388. From Benguema, the troops retreated to Newton, where they remained about a month, performing similar tasks.2590 At Newton, ‘Five-Five’ was responsible for all the young girls at the camp. Witness TF1-334 observed problems with the girls being reported to him.2591 (v) Findings 1389. On the basis of the evidence above, the Trial Chamber is satisfĳied beyond reasonable doubt that between 6 January 1999 and 28 February 1999, members of the AFRC abducted large numbers of civilians from locations including Freetown, Kissy, Calaba Town and Kola Tree and used these civilians as forced labour in locations including Benguema and Newton in the Western Area. The Trial Chamber accordingly fĳinds, without predetermining the individual responsibility of the three Accused, that the elements in relation to Count 13 have been established. (g) Port Loko District (about February 1999) 1390. The Indictment alleges that “[a]bout the month of February 1999, the AFRC/RUF fled from Freetown to various locations in the Port Loko District. Members of the AFRC/RUF used civilians, including those that had been abducted from Freetown and the Western Area, as forced labour in various locations throughout the Port Loko District including Port Loko, Lunsar and Masiaka.

2586 TF1-227, Transcript 8 April 2005, p. 98; Transcript 11 April 2005, p. 6. 2587 TF1-227, Transcript 8 April 2005, p. 98; Transcript 11 April 2005, p. 6. 2588 TF1-334, Transcript 14 June 2005, p. 113–116; TF1-227, Transcript 11 April 2005, pp. 12–13. 2589 TF1-334, Transcript 14 June 2005, pp. 119–120. 2590 TF1-334, Transcript 15 June 2005, p. 13–15. 2591 TF1-334, Transcript 15 June 2005, p. 15. 1564 part iv

AFRC/RUF forces also abducted and used as forced labour civilians from various locations in the Port Loko District, including Tendakum and Nonkoba.”2592 1391. In arriving at the following fĳindings, the Trial Chamber has examined the entire evidence in relation to enslavement in Port Loko District, in particular the testimony of witnesses TF1-334 and George Johnson. No evidence was adduced of enslavement in February 1999 in Port Loko, Lunsar, Tendakum and Nonkoba. (i) Other locations in Port Loko District 1392. In Mamamah Town, the troops were ordered by the Accused Kamara to use civilians to dig a large ditch in the road to create an obstacle for ECOMOG forces. Civilians did so, using pick axes, under the supervision of the Accused Kamara.2593 The Trial Chamber is of the view that this isolated incident of forced labour of short duration does not involve the exercise of powers attaching to the right of ownership over the victims. It is therefore of an insufffĳicient gravity to prove the actus reus of enslavement. 1393. Witnesses testifĳied that about 700 people, including abducted civilians, were at the AFRC base in Gberi Bana under the command of the Accused Kamara.2594 However, in the absence of further evidence as to whether the abductees were used as forced labour, and in light of the evidence of witness TF1-334 that civilians joined the AFRC troops retreating from Benguema did so since they feared for their lives,2595 the Trial Chamber fĳinds that there is reasonable doubt as to whether these civilians were enslaved. (ii) Findings 1394. The Trial Chamber accordingly fĳinds that the Prosecution has failed to establish that civilians were enslaved in February 1999 in Port Loko District.

G. Count 14 (Pillage) 1. Allegations and Submissions 1395. The Indictment alleges that members of the AFRC/RUF subordinate to and/or acting in concert with the Accused carried out “[w]idespread unlawful taking and destruction by burning of civilian property.”2596 This looting and burning was allegedly carried out in various locations in the territory of Sierra Leone

2592 Indictment, para. 73. 2593 TF1-334, Transcript 15 June 2005, pp. 21–22. 2594 TF1-334, Transcript 15 June 2005, p. 31; George Johnson, Transcript 16 September 2005, p. 72. See Role of Accused, paras. 485–500, supra, for further detail on the Accused Kamara in Port Loko District in this period. 2595 TF1-334, Transcript 15 June 2005, p. 10. 2596 Indictment, para. 74. judgments 1565 including Bo District between 1 June 1997 and 30 June 1997; Koinadugu District between about 14 February 1998 and 30 September 1998; Kono District between about 14 February and 30 June 1998; Bombali District between about 1 March 1998 and 30 November 1998; and Freetown and the Western Area between 6 January 1999 and 28 February 1999.2597 1396. Submissions by the Parties with regard to specifĳic incidents and witnesses will be discussed as they arise in the evidence below.

2. Evidence and Deliberations 1397. The Trial Chamber recalls its fĳinding that the burning of property does not satisfy the legal elements of pillage.2598 Therefore, the Trial Chamber will only examine the evidence relating to the underlying acts of looting. 1398. The Trial Chamber recalls that on several occasions, senior AFRC and RUF commanders declared operations that authorised their forces to plunder civilian property. Following the retreat from Freetown in February 1998, Johnny Paul Koroma declared “Operation Pay Yourself” over BBC Radio.2599 Witness TF1-334 testifĳied that Koroma announced this operation, which encouraged the troops to loot property, since without access to state revenue he could no longer pay them.2600 Sam Bockarie declared a similar operation to his soldiers in Kenema District in February 1998.2601 Looting with reference to ‘Operation Pay Yourself’ continued long after their announcement.2602 1399. Given this context, the Trial Chamber is satisfĳied that the looting described below was directly linked to the war effforts of the AFRC and RUF and that the perpetrators were aware of the existence of an armed conflict and of the protected status of the owner of the property. 1400. The Trial Chamber is satisfĳied, in respect of each incident of looting described below, that the perpetrators intended to deprive the civilians of their property, without their consent, and appropriate it for their personal use.

2597 Indictment, paras. 75–79. 2598 Applicable Law, para. 757, supra. 2599 TF1-334, Transcript 17 May 2005, pp. 72–73. 2600 TF1-334, Transcript 17 May 2005, pp. 72–73; TF1-216, Transcript 27 June 2005, pp. 78–80, 96. 2601 TF1-045, Transcript 19 July 2005, p. 82. 2602 Witness TF1-216 testifĳied that soldiers referred to ‘Operation Pay Yourself’ following the capture of Koidu Town in March 1998: Transcript 27 June 2005, pp. 78–80, 96. Witness TF1-334 testifĳied that the operation continued up to Kono District: Transcript 20 June 2005, pp. 104–10. Witness TF1- 157 testifĳied that looting AFRC soldiers referred to ‘Operation Pay Yourself’ in Bombali District in April/May 1998: Transcript 22 July 2005, p. 68. 1566 part iv

(a) Bo District (1 June 1997–30 June 1997) 1401. The Prosecution alleges that “[b]etween 1 June 1997 and 30 June 1997, AFRC/RUF forces looted […] in Telu, Sembehun, Mamboma and Tikonko.”2603 1402. The Trial Chamber has previously found that no evidence on pillage was adduced with respect to Telu, Sembehun and Mamboma.2604 The Trial Chamber fĳinds that no evidence has been adduced of acts of looting with respect to Tikonko. (b) Koinadugu District (14 February 1998–30 September 1998) 1403. The Prosecution alleges that “[b]etween about 14 February 1998 and 30 September 1998, AFRC/RUF forces engaged in widespread looting […] in the District, including Heremakono, Kabala, Kamadugu and Fadugu.”2605 1404. The Trial Chamber has previously held that the Prosecution has not led evidence on pillage with respect to Heremakono and Kamadugu.2606 No evidence was adduced of looting within the Indictment period in Fadugu. 1405. In reaching its factual fĳindings and having examined the entire evidence, the Trial Chamber relies on Prosecution witnesses TF1-147, TF1-153 and TF1-199, Defence witness DAB-078 and Exhibit P-57. (i) Kabala 1406. Witness TF1-147 testifĳied that following a “rebel” attack on Kabala on 27 July 1998, property of civilians, including his personal belongings, were looted.2607 The witness did not see the perpetrators, but concluded that the “rebels” who attacked the town were responsible.2608 In a second attack on 17 September 1998, fĳighters again looted civilian property from houses.2609 The witness believed that the attack was conducted by the same “rebels” who had staged the July attack.2610 1407. Witness TF1-147 was not able to identify the faction that attacked Kabala town on those two occasions. However, witness DAB-078 stated that around September 1998 he heard that troops under the command of ‘Savage’ had looted a house in Kabala.2611

2603 Indictment, para. 75. 2604 Rule 98 Decision, para. 261. 2605 Indictment, para. 76. 2606 Rule 98 Decision, para. 261. 2607 TF1-147, Transcript 13 July 2005, p. 10; TF1-199, Transcript 6 October 2005, p. 88. 2608 TF1-147, Transcript 13 July 2005, pp. 10–12. 2609 TF1-147, Transcript 13 July 2005, p. 14. 2610 TF1-147, Transcript 13 July 2005, p. 13. 2611 DAB-078, Transcript 6 September 2006, pp. 41, 43–44. judgments 1567

1408. Form the date given of the attacks and the overall evidence adduced, the Trial Chamber fĳinds beyond reasonable doubt that the attacks on Kabala were conducted by troops associated with SAJ Musa and/or Dennis Mingo. (ii) Finding 1409. On the basis on the foregoing evidence and without predetermining the individual responsibility of the three Accused, the Trial Chamber fĳinds beyond a reasonable doubt that between about 14 February 1998 and 30 September 1998, AFRC/RUF forces engaged in looting in Kabala in Koinadugu District. (c) Kono District (14 February 1998 - 30 June 1998) 1410. The Prosecution alleges that “[b]etween about 14 February 1998 and 30 June 1998, AFRC/RUF engaged in widespread looting and burning in various locations in the District, including Tombodu, Foindu and Yardu Sando, where virtually every home in the village was looted […].”2612 1411. The Trial Chamber has previously found that no evidence on pillage was led with respect to Foindu.2613 1412. In reaching its factual fĳindings and having examined the entire evidence, the Trial Chamber relies on Prosecution witnesses TF1-019 and TF1-072. (i) Tombodu 1413. Witness TF1-072 testifĳied that in March 1998, soldiers under the command of ‘Savage’2614 on the way to Tombodu forcefully appropriated fĳive gallons of palm wine from a civilian and consumed the palm wine.2615 (ii) Yardu Sando 1414. Witness TF1-019 testifĳied that on 16 April 1998, AFRC soldiers and RUF rebels attacked Yardu Sando2616 and took boxes and other valuable property from civilian houses.2617 The fĳighters were singing in joy about the property they looted.2618 (iii) Findings 1415. On the basis on the foregoing evidence and without predetermining the individual responsibility of the three Accused, the Trial Chamber fĳinds beyond a reasonable doubt that between about 14 February 1998 and 30 June 1998, AFRC/ RUF forces engaged in looting in Tombodu and Yardu Sando in Kono District.

2612 Indictment, para. 77. 2613 Rule 98 Decision, para. 261. 2614 TF1-072, Transcript 1 July 2005, pp. 21–22. 2615 TF1-072, Transcript 1 July 2005, pp. 11–12. 2616 TF1-019, Transcript 30 June 2005, pp. 89, 94–95. 2617 TF1-019, Transcript 30 June 2005, pp. 89–91. 2618 TF1-019, Transcript 30 June 2005, p. 114. 1568 part iv

(d) Bombali District (1 March 1998–31 November 1998) 1416. The Prosecution alleges that “[b]etween about 1 March 1998 and 31 November 1998, AFRC/RUF forces burnt an unknown number of civilian buildings in locations in Bombali District, such as Karina and Mateboi.”2619 1417. Although the Prosecution adduced evidence with respect to looting in Karina, Makeni and Camp Rosos, acts of looting are not alleged in the Indictment with regard to Bombali District. The Trial Chamber accordingly makes no fĳindings on this evidence. (e) Freetown and the Western area (6 January 1999–28 February 1999) 1418. The Prosecution alleges that “[b]etween 6 January 1999 and 28 February 1999, AFRC/RUF forces engaged in widespread looting […] throughout Freetown and the Western Area.”2620 1419. Given that burning does not constitute an act of pillage, the Trial Chamber has not made fĳindings on the destruction of civilian houses in Kissy, Wellington and Calaba Town, as pleaded in the Indictment.2621 The Trial Chamber makes fĳindings only on incidents of looting which occurred within Freetown and not the greater Western Area. 1420. In arriving at the following fĳindings of fact, the Trial Chamber has considered the available evidence and relies on the testimony of Prosecution witnesses Gibril Massaquoi, TF1-334, and TF1-083. (i) State House 1421. On 6 January 1999 at State House, witness TF1-334 was present when the Accused Brima ordered the Operation Commander to collect the vehicles parked at UN House and bring them to State House, since the commanders needed vehicles for transportation within the city. Following the order, the Operation Commander moved towards ‘UN House’ and subsequently returned to State House with jeeps and Toyota Land Cruisers.2622 1422. Moreover, Gibril Massaquoi testifĳied that whilst present at State House during the January 1999 invasion of Freetown, he observed that “almost all” AFRC faction commanders had vehicles. He stated that he saw the Accused Brima entering State House with a jeep, the Accused Kanu with a white ‘Hilux’ with an ‘UNDP’ logo, and other vehicles being used with the ‘UNWFP’ logo.2623 Accordingly, the witness understood that these vehicles had been looted.2624

2619 Indictment, para. 78. 2620 Indictment, para. 79. 2621 Indictment, para. 79. 2622 TF1-334, Transcript 14 June 2005, p. 24. 2623 Gibril Massaquoi, Transcript 7 October 2005, p. 126. 2624 Gibril Massaquoi, Transcript 7 October 2005, p. 126. judgments 1569

1423. Witness TF1-334 testifĳied that on 6 January 1999 he observed extensive looting within State House. He stated that the Presidential Offfĳice and all other offfĳices were completely vandalised.2625 The Trial Chamber is satisfĳied that this looting was carried out by AFRC troops, as State House was the headquarters of the AFRC troops during the Freetown invasion. (ii) Kissy 1424. On 6 January 1999, two men wearing plain clothes and military trousers and one other man wearing full military uniform and carrying a gun took away money and food from witness TF1-104 and his family.2626 1425. One Friday at about 12:30 p.m. during the January 1999 invasion of Freetown, a congregation of people were gathered inside Rogbalan mosque to attend Juma prayers when “armed men” carrying guns, cutlasses and axes attacked the people. Witness TF1-021 testifĳied that these armed men took 15,000 Leones from his pocket.2627 1426. During the January 1999 invasion of Freetown, “rebels” wearing military uniforms raided Kissy area and stole civilian property.2628 Witness TF1-084 was present in Kissy area and saw the looting taking place. He stated that the “rebels” led by ‘Akim’ entered civilian houses, loaded televisions, radios and other goods onto their vehicles and drove offf.2629 The rebels also attacked houses on Rowe Street where they captured eight civilians, including witness TF1-084, and took away all their money.2630 Shortly thereafter, Commander ‘Tafaiko’ removed the witness’ gold plated wrist watch and took it from him. ‘Tafaiko’ also took an amount of $200 which he had removed from the witness’s pocket.2631 1427. On 22 January 1999, “rebels” wearing combat and armed with guns and machetes broke into a house on Old Road. Witness TF1-083 stated that the “rebels” demanded money and other valuables, including clothes, which they took from him and other civilians in the house.2632 1428. On the same day, Witness TF1-083 also encountered several “rebels” armed with guns, machetes, knives and axes at Locust and Samuel’s area at Old Road. One of the “rebels” took the witness’s shirt and wore it. Another “rebel” took money from the witness’s pockets.2633

2625 TF1-334, Transcript 14 June 2005, pp. 25–26. 2626 TF1-104, Transcript 30 June 2005, pp. 30, 31. 2627 TF1-021, Transcript 15 April 2005, pp. 26, 34–35. 2628 TF1-084, Transcript 6 April 2005, p. 39. 2629 TF1-084, Transcript 6 April 2005, pp. 38–39. 2630 TF1-084, Transcript 6 April 2005, pp. 40–41. 2631 TF1-084, Transcript 6 April 2005, pp. 41–42. 2632 TF1-083, Transcript 8 April 2005, pp. 59–60. 2633 TF1-083, Transcript 8 April 2005, pp. 62–63. 1570 part iv

(iii) Findings 1429. On the basis on the foregoing evidence and without predetermining the individual responsibility of the three Accused, the Trial Chamber fĳinds beyond reasonable doubt that between 6 January 1999 and 28 February 1999, AFRC forces engaged in looting in State House in Freetown and Kissy in the Western Area.

H. Acts of Terrorism (Count 1) and Collective Punishment (Count 2) 1430. The Indictment alleges that at all times relevant to the Indictment, members of the RUF, AFRC, Junta and/or AFRC/RUF forces (AFRC/RUF), subordinate to and/or acting in concert with the three Accused conducted armed attacks throughout the territory of the Republic of Sierra Leone, including Bo, Kono, Kenema, Koinadugu, Bombali, Kailahun and Port Loko Districts and the City of Freetown and the Western Area. Targets of the armed attacks included civilians.2634 1431. The Indictment alleges that these attacks were carried out primarily to terrorize the civilian population but were also used to punish the population for failing to provide sufffĳicient support to the AFRC/RUF, or for allegedly providing support to the Kabbah government or to pro-government forces. The Indictment further alleges that the attacks included unlawful killings, physical and sexual violence against civilian men, women and children, abductions and looting and destruction of civilian property. It is alleged that many civilians saw these crimes committed; others returned to their homes or places of refuge to fĳind the results of these crimes – dead bodies, mutilated victims and looted and burnt property.2635 1432. The Indictment alleges that as part of the campaign of terror and punishment the AFRC/RUF routinely captured and abducted members of the civilian population. It alleges that captured women and girls were raped; many of them were abducted and used as sex slaves and as forced labour; and that some of these women and girls were held captive for years. It alleges that men and boys who were abducted were also used as forced labour; some of them were also held captive for years; and that many abducted boys and girls were given combat training and used in active fĳighting. It is alleged that AFRC/RUF also physically mutilated men, women and children, including amputating their hands or feet and carving “AFRC” and “RUF” on their bodies.2636 1433. The Indictment alleges that members of the AFRC/RUF subordinate to and/or acting in concert with Alex Tamba Brima, Brima Bazzy Kamara and

2634 Indictment para. 38; see also Prosecution Opening Statement, Transcript 7 March 2005, p. 26. 2635 Indictment para. 39; see also Prosecution Opening Statement, Transcript 7 March 2005, p. 26. 2636 Indictment para. 40; see also Prosecution Opening Statement, Transcript 7 March 2005, p. 27. judgments 1571

Santigie Borbor Kanu committed the crimes set forth in paragraphs 42 through 79 and charged in Counts 3 through 14 (Counts 3–5: Unlawful Killings; Counts 6–9: Sexual Violence; Counts 10–11: Physical Violence; Count 12: Use of Child Soldiers; Count 13: Abductions and Forced Labour; Count 14: Looting and Burning) as part of a campaign to terrorize the civilian population of the Republic of Sierra Leone, and did terrorize that population. The Indictment alleges that the AFRC/RUF also committed the crimes to punish the civilian population for allegedly supporting the elected government of President Ahmed Tejan Kabbah and factions aligned with that government, or for failing to provide sufffĳicient support to the AFRC/RUF.2637 1434. The Indictment charges that, by their acts or omissions in relation to these events, the three Accused, pursuant to Article 6(1) and/or alternatively, Article 6(3) of the Statute, are individually criminally responsible for the crimes alleged in Count 1, Acts of Terrorism, a violation of Article 3 common to the Geneva Conventions and of Additional Protocol II, punishable under Article 3(d) of the Statute,2638 and in Count 2, Collective Punishments, a violation of Article 3 common to the Geneva Conventions and of Additional Protocol II punishable under Article 3(b) of the Statute.2639

1. Allegations and Submissions (a) Evidentiary basis 1435. In its Supplemental Pre-Trial and Final Briefs, the Prosecution asserted that the evidentiary basis for the crimes charged in Counts 3 to 14 of the Indictment, taken as a whole, provides the evidentiary basis for the acts of terrorism charged as Count 1 and the collective punishments charged as Count 2.2640 1436. The Trial Chamber notes that the actus reus of the crime of terror involves “acts or threats of violence directed against protected persons or their property.” A plain reading suggests that the factual basis of this element could, in theory, encompass a broader range of facts than those necessary to prove the actus reus elements of the crimes charged in Counts 3 to 14 of the Indictment. As set out by this Chamber in the Applicable Law, supra, the Galić Appeals Chamber has con- fĳirmed that “the nature of the acts or threats of violence directed at the civilian population can vary; the primary concern […] is that those acts or threats of violence can be committed with the specifĳic intent to spread terror among the

2637 Indictment para. 41. 2638 Indictment para. 41; see also Prosecution Opening Statement, Transcript 7 March 2005, p. 27. 2639 Indictment para. 41; see also Prosecution Opening Statement, Transcript 7 March 2005, p. 27. 2640 Prosecution Supplemental Pre-Trial Brief Pursuant to Order to the Prosecution to File a Supplemental Pre-Trial Brief of 1 April 2004, 21 April 2004, para. 14. [“Prosecution Supplemental Pre- Trial Brief”]; Prosecution Final Brief, paras. 543, 560, 1373, 1288, 1488, 1517, 1561. 1572 part iv civilian population.”2641 This Chamber has held that acts of terrorism are not restricted to violence, or threats of violence, targeted at protected persons but may include threats of attacks on, or destruction of, people’s property or means of survival. 1437. The Trial Chamber notes also that some evidence has been adduced by the Prosecution in this case which does not go to the proof of the crimes indicted in Counts 3–14. While such evidence might theoretically go to proof of the actus reus of the crime of Terror in an abstract consideration, the Trial Chamber does not rely upon it in this case as to do so would place an unfair burden upon the Defence who cannot be said to have been put on notice of such in the Prosecution’s case against the Accused. This is similarly the case with any evidence of threats of violence which may have been adduced by the Prosecution, but which have not been expressly pleaded by the Prosecution. The Trial Chamber, therefore, has limited its examination of the evidence adduced in relation to the crime of terror in this case to acts of violence which have been pleaded by the Prosecution as going to crimes laid out in the Indictment. 1438. The Trial Chamber, does however, make an exception to this limitation with regards to evidence which relates to acts of burning civilian property. The Trial Chamber has found that burning, as alleged by the Prosecution, is not inclusive of the crime of pillage.2642 However, the Trial Chamber is of the opinion that burning, unlike other evidence adduced by the Prosecution which does not go to proof of the crimes alleged, has been sufffĳiciently particularized by the Prosecution in the Indictment under Count 14, and that therefore, the Defence has been put on adequate notice. The Trial Chamber will therefore take into consideration evidence of burning in relation to the actus reus of the crime of the crime of terror as an act of violence directed against protected persons or their property. 1439. With regards to the element of the crime of terror that the acts or threats of violence directed against protected persons or their property were committed with the primary purpose of spreading terror among the civilian population, the Trial Chamber may rely on evidence which demonstrates a pattern of similar attacks, the context of the act, or is otherwise indicative of the purpose relative to any acts of violence committed, regardless of the nature of that evidence. The Trial Chamber will therefore examine the whole of the evidentiary record in this regard. 1440. The Trial Chamber therefore adopts a two-step approach to the examination of the crime of terror as follows: Were acts of violence particularised in the Indictment wilfully directed against protected persons or their property by members of the AFRC?

2641 Galić Appeal Judgement, para. 102. 2642 Rule 98 Decision. judgments 1573

If so, is there evidence which proves beyond a reasonable doubt that these acts were committed with the primary intent of spreading terror among the civilian population? (b) Primary purpose 1441. In its Final Brief, the Kanu Defence argues that the intent required for a fĳinding of terror is a special intent, namely, that the Accused must not only be aware of the possibility that terror would result, but that terror was the result that was specifĳically intended.2643 The Kanu Defence argues that from the time the AFRC was ousted from Freetown by ECOMOG in February 1998, SAJ Musa was the overall commander of the AFRC and that the overall goal of the AFRC was to reinstate the army in Freetown. As such, the Kanu Defence argues that all crimes allegedly committed during this time were in furtherance of this goal and that the Prosecution did not lead any evidence that Kanu’s primary goal was to spread terror.2644 1442. The Appeals Chamber in the Galić case held: […] the purpose of the unlawful acts or threats to commit such unlawful acts need not be the only purpose of the acts or threats of violence. The 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.2645 1443. The Trial Chamber therefore fĳinds as a preliminary observation, that the possibility that another purpose to acts of violence may have existed does not in and of itself disprove that the primary purpose was to spread terror among the civilian population. Whether such a purpose was the primary purpose is a question to be determined in relation to the events outlined below. 1444. The Trial Chamber refers to paragraphs 38 and 39 of the Indictment in which the Prosecution sets out the particulars of Count 1, Terror. It is stated in paragraph 38 that “members of the RUF, AFRC, Junta and/or AFRC/RUF forces (AFRC/RUF) […] conducted armed attacks throughout the territory of the Republic of Sierra Leone […].”2646 Paragraph 39 continues, “These attacks were carried out primarily to terrorize the civilian population, but were also used to punish the population for failing to provide sufffĳicient support to the Kabbah government or pro-government forces.”2647 The alleged attacks to which the Indictment refers

2643 Kanu Final Brief, p. 135. 2644 Kanu Final Brief, para. 400. 2645 Galić Appeal Judgement, para. 104. 2646 Indictment, para. 38. 2647 Indictment, para. 39. 1574 part iv occurred in the context of an internal armed conflict in which various parties, each maintaining their own overall goals, engaged with each other and with the civilian population in a number of encounters. Any given encounter or attack within the context of the overall conflict may have been undertaken for any number of strategic, necessary or other reasons. It is a question of whether any particular attack or series of attacks was waged with the primary purpose to spread terror among the civilian population that the Indictment bids the Trial Chamber to determine. The Trial Chamber fĳinds therefore, that the Kanu Defence submission that all the crimes allegedly committed during this time were in furtherance of the overall goal of SAJ Musa to reinstate the army in Freetown does not address the question before it with regards to Count 1.

2. Evidence and Deliberations (a) Primary purpose of certain acts of violence 1445. As a preliminary observation, the Trial Chamber is of the opinion that the purpose behind an individual act of violence may not necessarily correspond with that of the campaign in which it simultaneously occurs. It follows that certain acts of violence, even when committed in the context of other acts of violence the primary purpose of which may be to terrorise the civilian population, may not have been committed in furtherance of such a campaign. The Trial Chamber is of the opinion that this is the case with regards to certain acts of violence underlying Counts 3 through 14 of the Indictment, as outlined below. 1446. Conversely, the Trial Chamber is also of the opinion that certain acts of violence are of such a nature that the primary purpose can only be reasonably inferred to be to spread terror among the civilian population regardless of the context in which they were committed. (i) Child soldiers 1447. The Trial Chamber has found that children abducted by the AFRC/RUF were forced to undergo military training2648 and were organised into “Small Boy Units” (SBUs)2649 and battalions.2650 Child soldiers were forced to fĳight along side the AFRC/RUF2651 and to guard strategic points of interest such as Cyborg Pit, a diamond mine in Kenema District, diamonds being the main source of conflict in the region. Child soldiers were forced into labour which supported and maintained the troops. Such labour included carrying loads of food and other “luggage,” fetching water and pounding rice. Child soldiers were forced to flog captured

2648 Factual Findings, Child Soldiers, para. 1254, supra. 2649 Factual Findings, Child Soldiers, para. 1271, supra. 2650 Factual Findings, Child Soldiers, para. 1271, supra. 2651 Factual Findings, Child Soldiers, para. 1255, supra. judgments 1575 civilians,2652 act as bodyguards,2653 amputate civilians2654 and were used as human shields.2655 1448. Generally speaking, the Trial Chamber has concluded that Junta forces abducted children for military purposes in Kenema District during the Junta period, that AFRC forces abducted children for military purposes in Kono, Koinadugu and Bombali Districts in 1998 and in Freetown and the Western Area in 1999. The Trial Chamber has also concluded that children were used for military purposes in Kenema District in 1997–1998, Kono District in 1998, and Freetown and Western Area in 1999.2656 On the basis of the evidence of expert witnesses, the Trial Chamber has also concluded that persons under the age of 15 were used for military purposes by all factions, including the AFRC, during the conflict including the period 25 May 1997-mid 1999. 1449. The Trial Chamber notes the evidence of Witness TF1-334 who stated that during the 1999 invasion of Freetown, the Accused Brima ordered the capture of civilians saying it would attract the attention of the international community2657 and the fĳinding of the Chamber that children were among those captured. While this evidence suggests that a non-military purpose also drove the AFRC to abduct children in this context, the Trial Chamber fĳinds this purpose was subordinate given the overwhelming evidence of the conscription and use of child soldiers for military purposes. This is supported by the further evidence of Witness TF1-334 who testifĳied that the children abducted from Freetown were later trained to be SBUs.2658 1450. The Trial Chamber fĳinds that the primary purpose of the conscription and use of child soldiers by the AFRC during the conflict in Sierra Leone, was not to spread terror among the civilian population, but rather was primarily military in nature. Therefore, even where such acts may have occurred simultaneously with other acts of violence considered by this Chamber with regards to the crime of terror, the Trial Chamber is of the opinion that such acts cannot be considered to have been committed as part of any such campaign. That is, in this particular factual context, the conscription and use of child soldiers cannot be considered as acts in furtherance of a primary purpose to terrorise protected persons.

2652 Factual Findings, Child Soldiers, para. 1262, supra. 2653 Factual Findings, Child Soldiers, para. 1268, supra. 2654 Factual Findings, Child Soldiers, para. 1270, supra. 2655 Factual Findings, Child Soldiers, para. 1275, supra. 2656 Factual Findings, Child Soldiers paras. 1278, supra. 2657 TF1-334, Transcript 14 June 2005, pp. 118–119, supra. 2658 TF1-334, Transcript 14 June 2005, pp. 182, supra. 1576 part iv

(ii) Abductions and Forced Labour 1451. The Trial Chamber has found that civilians abducted by the AFRC/RUF were forced to mine for diamonds at Cyborg Pit in Tongo Field, Kenema District.2659 Witness TF1-334 testifĳied that the Accused Brima ordered his troops to capture any civilian who looked strong in order to make them part of the troops prior to attacks in Koinadugu and Bombali Districts.2660 The Trial Chamber has found that abducted civilians were trained to use arms2661 and were given military training in Rosos, Bombali District.2662 They were also pressed into forced labour2663 including being forced to carry equipment and other goods for the troops.2664 1452. The Trial Chamber notes the evidence of Witness TF1-334 who testifĳied that Brima ordered the abduction of civilians from Freetown during the attack in order to attract the attention of the international community.2665 Similar to child soldiers, while this evidence suggests that a non-military purpose may have also driven the AFRC to abduct civilians in this context, the Trial Chamber is satisfĳied that this purpose was subordinate given the overwhelming evidence of the abduction of civilians for use as slave labour and/or to strengthen the number of the troops. The Trial Chamber notes its further fĳindings that the Accused Brima told his fĳighters to force captured civilians to join their forces in order to compensate for those fĳighters killed by ECOMOG.2666 The Trial Chamber has also found that civilians captured in Freetown were forced to join the rebel forces, that they accompanied the troops out of Freetown and were forced to carry loads. The Trial Chamber has also found that rebels told the civilians captured in Freetown that they had captured them to use them as human shields.2667 1453. The Trial Chamber does not discount that the abduction and detention of persons from their homes and their subjection to forced labour under conditions of violence spread terror among the civilian population. However, the Trial Chamber fĳinds this “side-efffect” of terror is not sufffĳicient to establish the specifĳic intent element of the crime with regards to these acts. 1454. The Trial Chamber fĳinds, therefore, that the primary purpose behind commission of abductions and forced labour was not to spread terror among the civilian population, but rather was primarily utilitarian or military in nature. As with evidence of the abduction and use of child soldiers, therefore, even where

2659 Factual Findings, Enslavement, paras. 1289–1309, supra. 2660 TF1-334, Transcript 23 May 2005, pp. 15–17. 2661 Factual Findings Enslavement, para. 1363, supra. 2662 Factual Findings Enslavement, paras. 1355–1359, supra. 2663 Factual Findings Enslavement, paras. 1355–1359, supra. 2664 Factual Findings Enslavement, paras. 1355–1359, supra. 2665 TF1-334, Transcript 14 June 2005, pp. 62–64. 2666 Factual Findings, Unlawful Killings, para. 914, supra. 2667 Factual Findings, Enslavement, para. 1384, supra. judgments 1577 abductions and forced labour occurred simultaneously with other acts of violence otherwise examined by this Chamber with regards to the crime of terror, the Trial Chamber is of the opinion that such acts cannot be considered to have been committed with the primary purpose to terrorise protected persons. (iii) Sexual Slavery 1455. The Trial Chamber has found that many women abducted by the AFRC troops were detained for many months, repeatedly raped and forced to do domestic work such as cooking, washing clothes and to carry loads. Many women were told by the perpetrators that they were now their “wives.”2668 1456. Witness TF1-334 testifĳied that at Rosos, civilians were captured by “rebels” from the surrounding villages. Those who tried to escape were executed.2669 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.”2670 This was an open practice. The Witness testifĳied that he and other soldiers all “had sexual intercourse” with captured women.2671 1457. Witness TF1-133 testifĳied that all the women who were captured at the same time as her were given to men as their wives which meant that the women had to have sex with the men.2672 She testifĳied further that in Krubola, the captured women cooked, “had sex” with the rebels and were forced to be their “wives.” The Witness stated that when a woman 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 testifĳied 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. 1458. The practice of sexual slavery was regulated by the AFRC troops through a system of ownership and punishment for transgressing the rules.2673 Witness TF1- 094 testifĳied that she believed that if she refused to have sex with her captor, she

2668 Factual Findings, Outrages upon Personal Dignity, supra. 2669 TF1-334, Transcript 20 May 2005, pp. 4–5. 2670 TF1-334, Transcript 20 May 2005, pp. 4–6. 2671 TF1-334, Transcript 20 May 2005, p. 7. 2672 TF1-133, Transcript 7 July 2005, pp. 90–92. 2673 TF1-133, Transcript 7 July 2005, pp. 98–102, pp. 102–106; TF1-334, Transcript 23 May 2005, pp. 76–77; TF1-033, Transcript 12 July 2005, p. 9. 1578 part iv would have been killed.2674 Some women were transferred as “wives” between two or more diffferent soldiers.2675 1459. The Trial Chamber therefore fĳinds that in the particular factual circumstances before it, the primary purpose behind commission of sexual slavery was not to spread terror among the civilian population, but rather was committed by the AFRC troops to take advantage of the spoils of war, by treating women as property and using them to satisfy their sexual desires and to fulfĳil other conjugal needs. As with evidence of the other enslavement crimes, namely the abduction and use of child soldiers and forced labour therefore, even where sexual slavery occurred simultaneously with other acts of violence examined by this Chamber with regards to the crime of terror, the Trial Chamber is of the opinion that such acts cannot be considered to have been committed with the primary purpose to terrorise the civilian population. (iv) Physical Violence: Amputations 1460. The Trial Chamber has found that amputations of civilians were carried out by members of the AFRC in Kono and Koinadugu Districts as well as in the City of Freetown. In Tombodu, Kono District, the Trial Chamber has found amputations were carried out by members of the AFRC in retaliation for alleged civilian killings of AFRC soldiers, as a warning to other civilians, and because civilians did not support the AFRC but supported the government. Civilians whose hands were amputated by members of the AFRC were told to ask President Kabbah for new hands.2676 1461. The Trial Chamber has found that civilians throughout Freetown, during the January 1999 invasion also had their hands amputated by members of the AFRC and were told to go to President Kabbah and ask him for new hands. During a raid of the PWD areas an AFRC operation was carried out called ‘Operation Cut Hand’ in which civilians were given the cruel choice of having either “short sleeves” or “long sleeves” meaning amputations of the arm at the bicep or of the hand at the wrist. In the Upgun, Ross Road and Fourah Bay area, civilians were “taught a lesson” and had their hands amputated and were hacked to death. Civilians there were told that as they had voted for “Pa Kabbah” they should go to him as he had hands to give them. They were also told to go to “Pa Kabbah” or ECOMOG to complain. Civilians near Shell Company at Old Road had their hands amputated and were told to go to “Pa Kabbah” because they had voted for him and he would give back their hands. At Kissy mental home, civilians had their hands amputated

2674 TF1-094, Transcript 13 July 2005, pp. 28–29, 49. 2675 DAB-156, Transcript 29 September 2006, pp. 39–40, 42–49; TF1-023, Transcript 9 March 2005, p. 46. 2676 See generally Factual Findings, Physical Violence, supra. judgments 1579 because they were thought to have divulged the location of AFRC troops to ECOMOG. Civilians were amputated at Kissy Mental Home, Fataraman Street, Parsonage Street and told to go to Kabbah. At Parsonage Street, the amputated civilians were told expressly, to tell Kabbah “this is what we have done. Go tell him no more politics, no more voting.” This pattern continued until late January or early February when the AFRC were forced to flee Freetown.2677 1462. The Trial Chamber is satisfĳied on the basis of the express statements of the perpetrators made at the time many of the amputations were carried out that such amputations were used by the AFRC with the primary purpose to spread terror among the civilian population. The Trial Chamber also notes that such amputations were carried out primarily against unarmed civilians, in or near their homes, villages, and farms, and the Trial Chamber is satisfĳied that the attacks could not have been primarily for military advantage. 1463. The mutilation of individuals in such a manner also carried with it an inherent public message regardless of the explicit statements of the perpetrators. The brutal amputation of civilian limbs served as a visible lifelong sign to all other civilians not to resist the AFRC and not to back President Ahmed Tejan Kabbah or his supporters. The Trial Chamber is also satisfĳied on this basis that the primary purpose of amputations carried out by members of the AFRC during the conflict in Sierra Leone could only reasonably be inferred to have been to terrorise the civilian population. 1464. The Trial Chamber is therefore convinced that amputations carried out by members of the AFRC Trial Chamber throughout the conflict, regardless of the context in which they were committed, were acts of violence committed against protected persons with the primary purpose to terrorise protected persons. (b) Kenema District (25 May 1997–19 February 1998) 1465. In its Pre-Trial Brief, the Prosecution submitted that following the AFRC coup in May 1997, AFRC/RUF forces engaged in sustained attacks throughout Kenema District on positions held by local militias, namely the CDF or Kamajors. The Prosecution submitted that as part of the campaign of terror and collective punishment, AFRC/RUF forces routinely targeted civilians for killings, detention, physical violence and ill-treatment for allegedly being sympathetic to, or collaborating with the CDF/Kamajors.2678 1466. In its Supplemental Pre-Trial Brief, the Prosecution submitted that the crimes committed during attacks on various villages in Kenema District where it was perceived that the civilians were supporting and/or harbouring the CDF/

2677 Factual Findings, Physical Violence, para.1235, supra. 2678 Prosecution Pre-Trial Brief, para. 78. 1580 part iv

Kamajors as well as the burning of civilian property performed as part of many of the attacks is evidence of collective punishment.2679 1467. In its Opening Statement, the Prosecution submitted that in Kenema Town, the AFRC/RUF rounded up prominent elders of the community including Mr. B.S. Massaquoi, and accused them of supporting the Kamajors and then ruth- lessly beat them, tortured them for days and fĳinally killed them.2680 1468. The Trial Chamber has found that acts of violence were carried out against protected persons in Kenema Town (Unlawful Killings; Physical Violence); and in Tongo Field (Enslavement). The Trial Chamber has also found that child soldiers were abducted and used for military purposes in Kono District. As discussed above, the Trial Chamber does not consider that acts of enslavement and the abduction and use of child soldiers were acts the primary purpose of which was to spread terror among the civilian population. Evidence on these counts will not be considered further in this regard. 1469. The Indictment does not allege burning in Kenema District. (i) Kenema Town 1470. The Trial Chamber has previously found in its Factual Findings that civilians in Kenema Town were accused of being Kamajors or of supporting the Kamajors and were unlawfully killed or subject to physical violence by members of the AFRC/RUF. 1471. In particular, the Trial Chamber relies on its fĳindings that after the Coup in 1997, both “RUF” rebels” and “AFRC Juntas” took over control of Kenema Town and remained in Kenema until February, 1998.2681 1472. The Trial Chamber also accepts the evidence of Prosecution Witness TF1- 122, not previously examined by the Chamber, that later, in December 1997, the AFRC/RUF launched ‘Operation No Living Thing’ in Kenema and that as part of this operation members of the AFRC/RUF would parade the streets of Kenema Town during the day accusing people of being Kamajors, entering people’s homes, harassing them, and looting their property alleging that they had Kamajors in their houses. The Witness testifĳied that members of the AFRC/RUF would “search you in the street, take whatever you have in your pocket and they will allege that you have Kamajor in your pocket” and that the RUF/AFRC “were shooting all over the air.”2682

2679 Prosecution Supplemental Pre-Trial Brief, paras. 17, 300, 583. 2680 Prosecution Opening Statement, 7 March 2005, p. 34. 2681 Factual Findings, Unlawful Killings, para. 829, supra. 2682 TF1-122, Transcript 24 June 2005, pp. 32–33, 35. judgments 1581

1473. The Trial Chamber has found that during this time, “RUF rebels” and “AFRC juntas” were seen dancing around the body of a civilian singing that they would kill all Kamajors. The rebels and juntas then split his abdomen and stretched his intestines across Hangh Road where the body stayed for three days.2683 1474. The Trial Chamber has previously found that in early February 1998 Sam Bockarie arrested a number of persons on the grounds that they were ‘Kamajor supporters.’ They were brought to the AFRC Secretariat, physically abused and detained for about three days. They were brought to the police and later rearrested by members of the AFRC/RUF, beaten and killed.2684 (ii) Findings 1475. On the basis of the circumstances of the attacks, namely that civilians were deliberately targeted on the premise that they supported Kamajors; the sustained duration of attacks of a similar nature, spanning May 1997 through December 1998; and the particularly brutal nature of some of the attacks including the burning of civilians in a house and the grotesque public display of a mutilated body, the Trial Chamber is satisfĳied that it has been proven beyond reasonable doubt that the primary purpose of the acts of violence described in Kenema Town was to spread terror among the civilian population. 1476. The Trial Chamber is further satisfĳied that the unlawful killings and subjection to physical violence also served as a punishment against protected persons. No evidence has been adduced to indicate whether the protected persons targeted in these attacks did or did not in fact support the elected government of President Ahmed Tejan Kabbah and factions aligned with that government, in this instance Kamajors, nor whether the protected persons in fact failed to provide sufffĳicient support to the AFRC/RUF. The Trial Chamber has held that the material element in the actus reus of the crime of collective punishment is not whether the acts were actually committed or not by the victims, but whether the perpetrator indiscriminately and collectively punished these individuals for acts that they might or might not have committed.2685 The Trial Chamber is satisfĳied, on the basis of the evidence specifĳied above, that protected persons were collectively punished for allegedly being or supporting Kamajors by members of the AFRC/RUF. (c) Bo District (1 June 1997–30 June 1997) 1477. In its Pre-Trial Brief, the Prosecution alleged that after the coup in May 1997, there was signifĳicant fĳighting between CDF/Kamajors and the AFRC/RUF forces in Bo District and civilians were often targeted as being sympathetic or

2683 Factual Findings, Unlawful Killings, para. 836, supra. 2684 See Factual Findings, Unlawful Killings para. 832, supra. 2685 Applicable Law, para. 680–681, supra. 1582 part iv collaborating with either the CDF or the AFRC/RUF. The Prosecution alleged that there were several instances of the AFRC/RUF forces executing civilians perceived to be working or sympathizing with the CDF during the Junta period.2586 1478. Also in its Pre-Trial Brief, the Prosecution alleged that in the weeks following the coup, there was an offfensive launched by the AFRC/RUF from Bo Town against the surrounding villages for their perceived sympathy or assistance to Kamajors in the region. It is alleged by the Prosecution that in approximately June 1997, AFRC/RUF forces attacked fĳive villages in the region, including Tikonko and Gerihun in the region; namely, Sembehun, Tikonko, Mamboma, Gerihun, and Telu. In these attacks, the Prosecution alleged that the AFRC/RUF intentionally killed many civilians that were remaining in the villages and in most of the attacks, looted and burned houses.2687 1479. In its Supplemental Pre-Trial Brief, the Prosecution submitted that the crimes committed during attacks on various villages in Bo District where it was perceived that the civilians were supporting and/or harbouring the CDF/Kamajors as well as the burning of civilian property performed as part of many of the attacks is evidence of collective punishment.2688 1480. In its Final Brief, the Prosecution submitted that it was a policy of the AFRC Government to eliminate all opposition to it and that the AFRC Government ordered, as a matter of policy, attacks on villages like Tikonko which supported the former SLPP Government. The Prosecution submitted that AFRC attacks including the burning of the SLPP building in Bo Town, the attack in Gerihun in which an AFRC delegation said they wanted to join forces with the Kamajors but instead shot civilians, attacked the Vice President’s house with an RPG and killed Chief Demby, sent a clear message that was “you are either for us or against us,” with elimination being the consequence of resistance.2689 1481. The Trial Chamber has found that acts of violence were carried out against protected persons in Tikonko (Unlawful Killings) and Gerihun (Unlawful Killings). 1482. In relation to the crime of terror, the Trial Chamber will consider evidence of burning of civilian property as an act of violence. The Indictment alleges that AFRC/RUF forces burned an unknown number of civilian homes in Telu, Sembehun, Mamboma and Tikonko. The Trial Chamber has found that the Prosecution conceded that it had not led evidence in respect of Telu, Sembehun

2586 Prosecution’s Pre-Trial Brief Pursuant to Order for Filing Pre-Trial Briefs (Under Rules 54 and 73bis) of 13 February 2004), 05 March 2004, para. 46. [“Prosecution Pre-Trial Brief”]. 2687 Prosecution Pre-Trial Brief, paras. 47–48. 2688 Prosecution Supplemental Pre-Trial Brief, paras. 17, 300, 583. 2689 Prosecution Final Brief, paras. 541–542. judgments 1583 and Mamboma.2690 The Trial Chamber fĳinds there is evidence of burning in Tikonko. This evidence will be evaluated, below. (i) Tikonko 1483. The Trial Chamber has previously found on the evidence of Prosecution Witness TF1-004, that on or around 25 June 1997, AFRC and/or RUF rebels attacked the villages of Tikonko and killed civilians.2691 In particular the Trial Chamber relies on its previous fĳindings that two groups of attackers came to the village that day. The Trial Chamber has found that the fĳirst group came with the intent to kill Kamajors but the second group shot indiscriminately at civilians and Kamajors alike killing fĳive civilians and three Kamajors at Tikonko Junction. During the attack on the village, the Trial Chamber has found a minimum of 18 more civilians were killed but that no evidence was adduced that any other Kamajors were killed. The Trial Chamber also relies in particular on its fĳindings that the soldiers entering the village were heard to say “the people of Tikonko will know them today”; that three civilian women had their bellies split open, two of whom died from their injuries; that civilians, including a child, were killed in their houses; and that a corpse of a man was mutilated, the skin removed from the forehead.2692 1484. The Trial Chamber also accepts the evidence of Prosecution Witness TF1- 004, not previously evaluated by the Chamber, that there was burning in Tikonko. The Witness testifĳied that as he was walking towards his home he noticed that there was a lot of smoke in the town and that houses were burnt. When he reached his own house, he saw that it had been burnt, that items, including rice, had been looted from the house or pulled out in front of the house and burned.2693 The Witness testifĳied that he did not know of anyone in the village who had petrol available to burn the houses.2694 1485. The Trial Chamber fĳinds the evidence of Prosecution Witness TF1-004 to be credible and consistent. The evidence of the Witness on burning was not challenged by the Defence. The Trial Chamber is convinced by the circumstantial evidence adduced, namely the burnt remains of houses and other items, and lingering smoke in the village following the attack, that the property of protected persons was burnt by members of the AFRC/RUF who attacked Tikonko that day. (ii) Gerihun 1486. The Trial Chamber has found previously in its Factual Findings that civilians were unlawfully killed in Gerihun.2695 The Trial Chamber relies in particular

2690 Rule 98 Decision, para. 261. 2691 Factual Findings, Unlawful Killings, paras. 810–818, supra. 2692 Factual Findings, Unlawful Killings, para. 814, supra. 2693 TF1-004, Transcript 23 June 2005, p. 24. 2694 TF1-004, Transcript 23 June 2005, p. 27. 2695 Factual Findings, Unlawful Killings, supra. 1584 part iv on its previous fĳindings that during an AFRC/RUF attack on Gerihun on 26 June 1997, Paramount Chief Demby and his caretaker were murdered by soldiers while the Paramount Chief was lying sick in his home.2696 1487. Relying on the evidence of Witness TF1-054 and TF1-053 set out below and not previously examined in this Judgement, the Trial Chamber fĳinds that the unlawful killing of Paramount Chief Demby was one act of violence committed as part of a series of attacks carried out by members of the AFRC/RUF against civilian and SLPP Government targets in the area. 1488. Witness TF1-053 testifĳied that he was in Bo Town on 25 May 1997 where he observed soldiers in uniform shooting in the street, causing people to run away, and hurling insults against persons afffĳiliated with the SLPP. The Witness testifĳied that at this time the SLPP Party Offfĳice on Kpondahun Road was burnt down. The Trial Chamber fĳinds it reasonable to infer that the SLPP Party was burnt down by AFRC/RUF soldiers.2697 1489. Roughly a month later, shortly before the killing of Paramount Chief Demby, Witness TF1-054 testifĳied that he too was present in Bo Town, at the Demby Hotel when armed “soldiers” wearing combat arrived at roughly 1:00 a.m. The soldiers stated that they were looking for Kamajors but the Witness testifĳied that they did not fĳind any at the hotel. The soldiers asked the Witness the whereabouts of Paramount Chief Demby and he told them that he was in his Chiefdom in Gerihun Town. Witness TF1-054 testifĳied that the soldiers harassed and beat civilians staying at the hotel, including wife of Paramount Chief Demby. The soldiers also stole property belonging to the patrons of the hotel.2698 1490. Witness TF1-053 also testifĳied that he observed “soldiers” launch an RPG into the house of the former vice-president, Mr. Albert Joe Demby (Paramount Chief Demby’s brother) during the attack on Gerihun in which Paramount Chief Demby was killed.2699 1491. However, the Trial Chamber fĳinds that the Prosecution assertion that the attack on Gerihun was preceded by an AFRC delegation which said they wanted to join forces with the Kamajors but instead shot civilians, an incident not previously evaluated by the Trial Chamber in its Factual Findings, mischaracterises the evidence brought before the Court. The Trial Chamber has carefully reviewed the evidence of Witness TF1-054 on this point. The Witness testifĳied that the afternoon prior to the attack on Gerihun at about 3:00 pm, he, together with a group of

2696 Factual Findings, Unlawful Killings, paras. 13–15, supra. 2697 TF1-053, 18 April 2005 pp. 96–99. 2698 TF1-054, Transcript 19 April 2005, pp. 80–85. 2699 TF1-054, Transcript 19 April 2005, pp. 89–90, 95. judgments 1585 students and Kamajors, attended a meeting at a school in Gerihun with four persons whom the witness stated had come from Freetown.2700 The Witness described the persons as a certain Mike Lamin, a certain Mr. Gbao and two others. According to the Witness, the four came to Gerihun to speak with the people there and to request that the Kamajors in Gerihun unite together with the AFRC soldiers. The Witness testifĳied that during the meeting he heard gun fĳire near the entrance to the town of Gerihun at which point the persons in attendance at the meeting disbursed.2701 In the absence of any further facts establishing the identities of the persons at the meeting and linking them to the subsequent attack on Gerihun, the Trial Chamber fĳinds the evidence is insufffĳicient to support the conclusions drawn by the Prosecution. (iii) Findings 1492. The Trial Chamber notes the targeted nature of the attacks against civilians in Tikonko by the second group of soldiers described by Witness TF1-004. Specifĳically the Trial Chamber notes that the soldiers were not making any selection in their killings which, taken together with the evidence of civilian deaths, the Trial Chamber is satisfĳied is indicative of the intent of the soldiers to target civilians and Kamajors alike. This inference is supported by the express statement, relayed by Witness TF1-004 that the soldiers were singing that the people of Tikonko will know them today. 1493. The Trial Chamber notes the circumstances of the attack against Tikonko; namely that armed soldiers entered and killed unarmed civilians, including a child, in their houses with no apparent military purpose. The civilians were killed or their bodies mutilated, in some instances in a particularly brutal manner, as for instance the splitting open of the belly of a pregnant women. 1494. The Trial Chamber also notes the close timing between the attacks on Tikonko and the attack in Gerihun, both of which targeted civilians for their supposed support for opposition groups to the AFRC. 1495. The Trial Chamber is satisfĳied on the basis of this evidence that the acts of violence described in Tikonko and Gerihun were carried out with the primary purpose of spreading terror. 1496. The Trial Chamber is further satisfĳied that the unlawful killings and burning also served as a punishment against protected persons. No evidence has been adduced to indicate whether the protected persons targeted in these attacks did or did not in fact support the elected government of President Ahmed Tejan

2700 TF1-054, Transcript 19 April 2005, pp. 86–87. 2701 TF1-054, Transcript 19 April 2005, pp. 87–88. 1586 part iv

Kabbah and factions aligned with that government, in this instance Kamajors or the SLPP party, nor whether in fact the protected persons failed to provide sufffĳi- cient support to the AFRC/RUF. The Trial Chamber has held that the material element in the actus reus of the crime of collective punishment is not whether the acts were actually committed or not by the victims, but whether the perpetrator indiscriminately and collectively punished these individuals for acts that they might or might not have committed.2702 1497. The Trial Chamber is satisfĳied, on the basis of the evidence specifĳied above, that protected persons were collectively punished for allegedly being or supporting Kamajors or members of the SLPP Government by members of the AFRC/RUF. (d) Kailahun District (14 February 1998–30 June 1998) 1498. In its Pre-Trial Brief, the Prosecution submitted that civilians in Kailahun District were killed by AFRC/RUF forces as part of their campaign of terror and punishment.2703 The Prosecution submitted that many civilians were deliberately killed on orders from senior AFRC/RUF commanders for their alleged membership or support for civil militia forces, the CDF/Kamajors, including a mass execution that was undertaken in Kailahun Town.2704 The Prosecution submitted that attacks against civilians also included the abduction of women from other parts of Sierra Leone and their subjection to sexual violence in Kailahun; the capture of men, women and children and their use as forced labour in various locations in Kailahun; and the training of forcibly conscripted men, women and children.2705 1499. In its Final Brief, the Prosecution argued that “[t]he crimes of physical violence and looting and burning although not specifĳically charged in the Indictment for Kailahun are relied upon as evidence for the crimes of Terrorism (Count 1) and Collective Punishment (Count 2).2706 1500. The Trial Chamber has found that acts of violence were carried out against protected persons in Kailahun Town (Unlawful Killings). The Trial Chamber has also found that civilians were enslaved in Kailahun District. As discussed above, the Trial Chamber does not consider that acts of enslavement were acts the primary purpose of which was to spread terror among the civilian population. Evidence on this will not be considered further in this regard. 1501. The Indictment does not allege burning in Kailahun District.

2702 General Requirements of Articles 2, 3 and 4 of the Statute, paras. 218–219, supra. 2703 Prosecution Pre-Trial Brief, para. 71. 2704 Prosecution Pre-Trial Brief, para. 71. 2705 Prosecution Pre-Trial Brief, paras. 72–74. 2706 Prosecution Final Brief, para. 341. judgments 1587

(i) Kailahun Town 1502. The Trial Chamber has previously found that persons in Kailahun Town were abducted, accused of being Kamajors and unlawfully killed. In particular, the Trial Chamber relies on its previous fĳindings that on the orders of Sam Bockarie, 67 persons accused of being Kamajors, were arrested in several villages in Kailahun District and detained at the G5 offfĳice in Kailahun Town. Ten of these persons were killed by Sam Bockarie personally, and the rest were shot on his orders. The Trial Chamber has found the persons killed were hors de combat.2707 (ii) Findings 1503. The Trial Chamber is not satisfĳied that the evidence establishes beyond reasonable doubt that the persons in Kailahun Town were abducted and killed with the primary purpose of spreading terror among the civilian population. 1504. The Trial Chamber is not satisfĳied that the evidence establishes beyond reasonable doubt that persons in Kailahun Town were collectively punished for supporting Kamajors. (e) Kono District (14 February 1998–30 June 1998) 1505. In its Pre-Trial Brief, the Prosecution submitted that widespread and systematic attacks were carried out by AFRC/RUF forces as part of a campaign of terror against the civilian population in order to gain control over Kono District, in particular the diamond mining areas. It was submitted that after the ECOMOG intervention in February 1998, AFRC/RUF forces retreating from Freetown and Makeni regrouped and travelled through Bombali and Koinadugu Districts to Kono District, specifĳically Koidu Town.2708 1506. In its Pre-Trial Brief and Supplemental Pre-Trial Brief, the Prosecution submitted that throughout Kono District, AFRC/RUF forces carried out organised amputations of limbs, including the chopping of hands of those accused of voting for President Kabbah. It is submitted that civilians who were present at the scene were forced to laugh or clap during amputations, while victims were told to return to President Kabbah and request their limbs back.2709 1507. It is submitted by the Prosecution in its Pre-Trial Brief that upon arrival in Koidu Town, AFRC/RUF forces commenced widespread attacks throughout the District demonstrating a pattern of widespread killings, physical and sexual violence, abductions, forced labour and conscription of civilians and widespread looting and destruction of civilian and public properties undertaken by

2707 Factual Findings, Unlawful Killings, paras. 860–863, supra. 2708 Prosecution Pre-Trial Brief, para. 92. 2709 Prosecution Pre-Trial Brief, para. 96; Prosecution Supplemental Pre-Trial Brief, paras. 17, 300, 583. 1588 part iv

AFRC/RUF forces in Kono throughout 1998. It is submitted that the AFRC/RUF terrorization of the civilian population enabled geographic control of the Kono area, particularly the diamond mining areas, where forced mining by civilians was being undertaken under the supervision of senior AFRC/RUF command.2710 1508. In its Supplemental Pre-Trial Brief, the Prosecution submits that the burning of civilian property performed as part of the attacks on many villages throughout the District is evidence of collective punishment.2711 1509. The Trial Chamber has found that acts of violence were carried out against protected persons or their property in Koidu (Unlawful Killings; Enslavement); in Tombodu (Unlawful Killings; Physical Violence; Enslavement; Pillage); in Mortema (Unlawful Killings); in Wondedu (Rape; Enslavement); in Kaima/Kayima (Physical Violence) and in Yardu Sando (Pillage). The Trial Chamber has also found that civilians were pressed into sexual slavery and that child soldiers were abducted and used for military purposes in Kono District. As discussed above, the Trial Chamber does not consider that acts of enslavement, the conscription and use of child soldiers, nor sexual slavery were acts the primary purpose of which was to spread terror among the civilian population. Evidence on these counts will not be considered further in this regard. 1510. In relation to the crime of terror, the Trial Chamber will consider evidence of burning of civilian property as an act of violence. The Indictment alleges that the AFRC/RUF engaged in widespread burning in Tombodu, Foindu and Yardu Sando, where virtually every home in the village was burned.2712 The Trial Chamber has found that the Prosecution conceded that it had not led evidence on burning in relation to Foindu. Where evidence has been led on burning in the remaining locations which may go the proof of Count 1, the Trial Chamber will examine it below. (i) Koidu Town 1511. The Trial Chamber has previously found that civilians in Koidu Town were targeted by AFRC/RUF soldiers and were killed.2713 1512. The Trial Chamber accepts the further evidence of witness TF1-334 that Johnny Paul Koroma addressed the commanders in Kono and told them that Kono must be retained as it was a defensive ground for the AFRC/RUF forces. Witness TF1-334 testifĳied that Koroma stated that the civilians in Kono had betrayed them by calling in the Kamajors and therefore, they must not be tolerated any longer in

2710 Prosecution Pre-Trial Brief, para. 94. 2711 Prosecution Supplemental Pre-Trial Brief, paras. 17, 300, 583. 2712 Indictment, para. 77. 2713 Factual Findings, Unlawful Killings, paras. 845–847, supra. judgments 1589

Koidu Town. He stated that in order to secure the area, civilian houses should be completely burnt down so that no civilians would be able to settle there.2714 1513. Koroma declared Kono a “civilian no-go area” and ordered that civilians who refused to join “the movement” should be executed so that they would not provide information regarding the location of the troops. Issa Sesay, in the presence of a number of other commanders, then reiterated what Johnny Paul Koroma had said, and added that the civilians had proven to be traitors and that this must not be tolerated at all. The witness testifĳied that the orders of Johnny Paul Koroma and Issa Hassan Sesay were immediately carried out. Civilians were driven out of Koidu Town and their houses were burnt down.2715 1514. The Trial Chamber also accepts the evidence of witness TF1-217, not previously examined by this Chamber in this Judgement, who similarly testifĳied that rebels and juntas burnt buildings in Koidu Town in February or March, 1998 to make Koidu into a “farm.” This meant that they did not want any civilians there. The troops were led by Akim Sesay and Lieutenant T.2716 1515. The Trial Chamber relies on its previous fĳindings that after Johnny Paul Koroma declared Koidu a “no go” area for civilians an unknown number of civilians were killed, although it has been unable to determine beyond reasonable doubt whether these killing are attributable to AFRC and/or RUF forces. (ii) Tombodu 1516. The Trial Chamber has found that following an order of Johnny Paul Koroma in March 1998, children were abducted and trained to perform amputations on civilians in areas within Kono District including Tombodu.2717 1517. The Trial Chamber accepts the evidence of Prosecution witness TF1-334, that in March 1998, ‘Savage,’ the commander in Tombodu, sent a message to ‘Bazzy’ in Koidu saying that civilians in Tombodu were celebrating because they believed ECOMOG had taken over the area. ECOMOG had not, in fact, taken over the area. Witness TF1-334 testifĳied that, in fact, the civilians had been led to believe this because ‘Savage’ was wearing a Nigerian ECOMOG uniform. As a result, the Witness, together with a certain ‘Colonel Momoh Dorty,’ went to Tombodu to see the civilians that ‘Savage’ had said were “jubilating.”2718 1518. The Trial Chamber has found on the basis of the evidence of Witness TF1-072 that in about March 1998, the Witness and thirteen other civilians were

2714 TF1-334, Transcript 18 May 2005, pp. 3–4. 2715 TF1-334, Transcript 18 May 2005, pp. 4–6. 2716 TF1-217, Transcript 17 October 2005, pp. 7–9, 32–34, 47–49, 51–53. 2717 Factual Findings, Physical Violence, para. 1201, supra. 2718 TF1-334, Transcript 20 May 2005, pp. 12. 1590 part iv captured by “soldiers” and brought before ‘Savage’ in Tombodu. ‘Savage’ used a cutlass to slap the witness on his back, accusing him of killing soldiers. 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.2719 1519. ‘Savage’ then announced that he would cut offf the hands of the fourteen captives, including witness TF1-072.2720 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 fĳire 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.2721 ‘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 terrifĳied that he defecated. His right hand was not entirely amputated, but permanently disfĳigured. The Trial Chamber was able to observe that the witness’ fĳingers are mangled. He stated that he is unable to read or write as result of the assault.2722 1520. The Trial Chamber relies on its previous fĳindings that when witness TF1- 334 arrived in Tombodu, he personally observed ‘Savage’ amputate the hands of about fĳifteen people.2723 Witness TF1-334 testifĳied that ‘Savage’ told the victims that they should tell ECOMOG that ‘Savage’ was in Tombodu and that this was a warning to the other citizens.2724 The Trial Chamber has found that ‘Savage’ locked 15 civilians into a house which he then set ablaze and that none of the civilians escaped, and that ‘Savage’ and a certain ‘Guitar Boy’ beheaded 47 and threw their bodies into a diamond pit.2725 1521. The Trial Chamber relies on its fĳindings, on the basis of the evidence of witness TF1-033, that the AFRC carried out an unknown number of amputations in March 1998.2726 1522. The Trial Chamber has found on the basis of the evidence of witness TF1- 216 that in April 1998, he and other civilians were taken by members of the AFRC to Tombodu. ‘Stafff Alhaji’ ordered the hands of the witness and fĳive others to be cut offf. Their hands were cut offf with a cutlass and they were told to go see

2719 TF1-072, Transcript 1 July 2005, pp. 15–16. 2720 TF1-072, 1 July 2005, p. 16. 2721 TF1-072, 1 July 2005, p. 18. 2722 TF1-072, 1 July 2005, pp. 19, 26. 2723 Factual Findings, Unlawful Killings, para. 1204, supra. 2724 TF1-334, Transcript 20 May 2005, p. 13. 2725 Factual Findings, Unlawful Killings, para. 849, supra. 2726 Factual Findings, Physical Violence, para. 1205, supra. judgments 1591

President Kabbah as he had a container of hands.2727 The Trial Chamber also relies in particular on its fĳindings with regards to witness TF1-216 that in or about April 1998 on the orders of ‘Stafff Alhaji Bayo’ 53 civilians were burnt alive by “juntas” in a house.2728 1523. The Trial Chamber accepts the testimony of Prosecution witness TF1-334, not previously examined by the Chamber, that prior to the pull out of the AFRC from Koidu Town in mid-May 1998, Johnny Paul Koroma ordered that houses should be burnt in Kono District and that following this Tombodu was completely burnt down.2729 The witness testifĳied that he knew this as he was an Operation Commander and monitored orders given to other commanders.2730 At the time that ‘Savage’ had informed ‘Bazzy’ that civilians in Tombodu were celebrating because they believed ECOMOG had overtaken the town, described above, the witness went to Tombodu and personally observed that Tombodu was completely burnt down by a joint SLA and RUF force. The witness testifĳied that Johnny Paul Koroma had given the order to burn the villages so the civilians would not occupy them and that the witness, other Operations Commanders, soldiers and ‘Bazzy’ ensured that these orders were carried out.2731 (iii) Yardu Sando 1524. The Trial Chamber relies on its previous fĳindings on the basis of the testimony of Witness TF1-019 that “AFRC soldiers” and “rebels” attacked Yardu Sando on 16 April 1998 and that during the attack soldiers looted valuable property from civilian houses.2732 The Trial Chamber also accepts the testimony of Witness TF1- 019, not previously examined, that during this attack the village was largely burnt down by the AFRC/RUF. The Witness stated that prior to the attack there were approximately 100 houses in the village and that following the burning, only 3 or 4 remained standing.2733 (iv) Findings 1525. The Trial Chamber infers from the circumstances of the attacks against civilians in Koidu Town and Tombodu, namely that civilians were repeatedly targeted and that a great number were deliberately killed; the sustained duration of the attacks; the particularly brutal nature of some of the attacks including civilians who were burnt alive when they were locked in houses which were set on fĳire; the great number of repeated mutilations of civilians whose missing hands were

2727 Factual Findings, Physical Violence, para. 1206, supra. 2728 Factual Findings, Unlawful Killings, para. 855, supra. 2729 TF1-334, Transcript 20 May 2005, pp. 7–9. 2730 TF1-334, Transcript 20 May 2005, pp. 9–11. 2731 TF1-334, Transcript 20 May 2005, pp. 16–17. 2732 Factual Findings, Pillage, para. 19, supra. 2733 TF1-019, Transcript 20 June 2005, pp. 90–91. 1592 part iv left as a grotesque and lingering public reminder of the attacks; the widespread destruction of civilian property in Tombodu; as well as the repeated and express statements of members of the AFRC/RUF that such attacks were committed to intimidate civilians; proves that the primary purpose of the attacks was to spread terror among the civilian population. The Trial Chamber is therefore satisfĳied that acts of terror were committed in Koidu Town and Tombodu. 1526. However, the Trial Chamber is not satisfĳied that is has been proven that the acts of looting and burning which took place in Yardu Sando were committed with the primary purpose of spreading terror among the civilian population. 1527. The Trial Chamber is further satisfĳied that the crimes committed in Koidu Town and Tombodu also served as a punishment against protected persons. No evidence has been adduced to indicate whether the protected persons targeted in these attacks did or did not in fact kill any AFRC/RUF soldiers and therefore whether they in fact did or did not fail to provide sufffĳicient support to the AFRC/RUF. The Trial Chamber has held that the material element in the actus reus of the crime of collective punishment is not whether the acts were actually committed or not by the victims, but whether the perpetrator indiscriminately and collectively punished these individuals for acts that they might or might not have committed.2734 The Trial Chamber is satisfĳied, on the basis of the evidence speci- fĳied above, that protected persons were collectively punished for allegedly having killed an AFRC/RUF soldier by members of the AFRC/RUF.

(f) Koinadugu District (14 February 1998–30 September 1998) 1528. In its Pre-Trial Brief, the Prosecution submitted that from approximately 4 February 1998, after the AFRC/RUF were driven out of Freetown by the ECOMOG intervention force, successive attacks in Koinadugu District involved widespread killings, physical and sexual violence against civilian men, women and children, looting and destruction of property and the abduction and forced labour and/or conscription of men, women and children. The Prosecution submitted that these crimes were committed in furtherance of a campaign of terror and collective punishment during AFRC/RUF troop movements and attacks on towns and villages throughout the entire District, including Fadugu, Heremakono, Kabala, Kamadugu, Katambo, Koinadugu Town, Kumalu, Kurubonla, Moriya, Seraduya, Serekolia, Sokorola, and Yifĳin.2735 1529. The Prosecution further submits in its Pre-Trial Brief that some acts of physical violence were undertaken by the AFRC/RUF forces in Koinadugu District

2734 Applicable Law, paras. 676–681, supra. 2735 Prosecution Pre-Trial Brief, paras. 82–91; see also Prosecution Opening Statement, Transcript 7 March 2005, pp. 35–36. judgments 1593 as collective punishment against the civilian population. It is submitted that AFRC/RUF forces organized amputations of limbs of men, women and children, who were given letters and/or told to go to President Kabbah to ask for their limbs back.2736 1530. In its Final Brief, the Prosecution asserted, “The attacks on Yifffĳin and other villages, all in close proximity to each other, were carefully designed and organised by the three Accused, who intended that the crimes charged would occur, or were aware of the substantial likelihood of the occurrence of all of these crimes. Moreover, these acts or threats of violence were committed with the primary purpose of spreading terror amongst civilians and punishing them collectively for their failure to support the AFRC/RUF.”2737 1531. The Trial Chamber has found that acts of violence were committed against protected persons or their property in Kabala (Unlawful Killings, Rape, Physical Violence, Enslavement, Pillage); in Kurubonla (Unlawful Killings); in Koinadugu Town (Unlawful Killings, Rape, Enslavement); in Fadugu (Unlawful Killings, Rape, Enslavement, Pillage); and in Kumala (Enslavement). The Trial Chamber has also found that women were subjected to sexual slavery and that children were abducted for use as child soldiers in Koinadugu District. The Trial Chamber has also found that enslavement, the abduction and use of child soldiers and sexual slavery are acts of violence the primary purpose of which, in the factual circumstances of the conflict in Sierra Leone, was not to spread terror among the civilian population. Evidence on these counts will not be considered further in this regard. 1532. In relation to the crime of terror, the Trial Chamber will consider evidence of burning of civilian property as an act of violence. The Indictment alleges that AFRC/RUF forces engaged in widespread looting and burning of civilian homes in Heremakono, Kabala, Kamadugu and Fadugu.2738 The Trial Chamber has found that the Prosecution conceded that it had not led evidence of burning in Heremakono and Kamadugu.2739 Where evidence has been led on burning in the remaining locations which may go the proof of Count 1, the Trial Chamber will examine it below. (i) Kabala, Fadugu, Koinadugu Town and Kurubonla 1533. The Trial Chamber has found that a number of acts of violence were committed in Kabala, Fadugu, Koinadugu Town and Kurubonla during the indicted period.

2736 Prosecution Pre-Trial Brief, para. 90; Prosecution Supplemental Pre-Trial Brief, paras. 17, 300, 583. 2737 Prosecution Final Brief, pp. 342–343. 2738 Indictment, para. 76. 2739 Rule 98 Decision, para. 261. 1594 part iv

1534. The Trial Chamber has found that Kabala Town was attacked by AFRC/ RUF forces in mid-May 1998 and that the hands of an unknown number of civilians were amputated after the forces had successfully captured the town.2740 On 27 July 1998 AFRC troops under the command of ‘Savage’ accompanied by “rebels” attacked Kabala Town for four to fĳive days. Seven loyal SLA soldiers were captured and executed2741 and the fĳighters looted civilian property.2742 The Trial Chamber has found that Kabala was attacked again by ‘Savage’ and fĳighters under his command on 17 September 1998 and that fĳighters looted civilian property from houses.2743 1535. The Trial Chamber has found that at a checkpoint in Fadugu on 22 May 1998 eight soldiers belonging to an unidentifĳied faction captured a civilian they believed to be a member of the CDF. The soldiers beat the man to death, cut open his stomach and removed his intestines. The intestines were displayed openly at the checkpoint. In close vicinity to the checkpoint, a teacher and his younger brother were killed.2744 The Trial Chamber has also found that during a later attack, on 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 in his house.2745 Four members of the AFRC or RUF under the command of ‘Savage’ raped a girl and forced another civilian who happened upon them to watch as it happened. The girl subsequently died from her injuries.2746 1536. The Trial Chamber has found that Koinadugu Town was attacked by “SLA” and “RUF fĳighters” under the command of SAJ Musa and Superman respectively in late July 1998 and that at least ten civilians were killed on the orders of ‘Superman.’ The Trial Chamber has also found that at least one civilian was repeatedly raped. 1537. The Trial Chamber notes, but does accept, the testimony of Witness TF1- 199 with regards to possible evidence of burning in Kabala and Fadugu in 1998.2747 While the Witness did not give a specifĳic date with regards to his arrival in Kabala, the Witness testifĳied that he was abducted by the AFRC/RUF in Bombali District at Christmas time in 1998 and travelled with the AFRC/RUF to several places before arriving in Kabala.2748 As such, he could not have been in Kabala prior to 30 September 1998, the end of the indicted period for acts of burning.

2740 Factual Findings, Physical Violence, paras. 1217–1218, supra. 2741 Factual Findings, Unlawful Killings, para. 871, supra. 2742 Factual Findings, Pillage, para. 1406, supra. 2743 Factual Findings, Pillage, para. 1407, supra. 2744 Factual Findings, Killings, para. 877, supra. 2745 Factual Findings, Killings, para. 878, supra. 2746 Factual Findings, Rape, paras. 1021–1025, supra. 2747 TF1-199, Transcript 06 October 2005, pp. 86–88. 2748 TF1-199, Transcript 06 October 2005, pp. 69–70, 75, 89. judgments 1595

(ii) Findings 1538. As described above, the Trial Chamber is satisfĳied that acts of physical violence, specifĳically amputations such as those carried out in Kabala Town in mid- May 1998, in the context of the conflict in Sierra Leone, are acts of violence the primary purpose of which was to terrorise the civilian population. However, the Trial Chamber fĳinds the evidence does not prove that the other acts of violence committed during the attacks on Kabala Town were acts the primary purpose of which was to spread terror among the civilian population. 1539. Similarly, the Trial Chamber is satisfĳied that the grotesque mutilation and public display of the body of a civilian suspected to be a member of the CDF is an act the primary purpose of which is to spread terror among the civilian population. However, the Trial Chamber is not satisfĳied that it can be determined beyond reasonable doubt that the other acts of violence committed during the attacks on Fadugu were acts the primary purpose of which was to spread terror among the civilian population. 1540. The Trial Chamber fĳinds that no evidence has been adduced that would demonstrate that the acts of violence committed in Koinadugu Town were committed with the primary purpose to spread terror among the civilian population. 1541. The Trial Chamber is neither satisfĳied that the elements in relation to Count 2 (Collective Punishment) are established in relation to Koinadugu District.

(g) Bombali District (1 May 1998–30 November 1998) 1542. In its Pre-Trial Brief, the Prosecution submitted that a large contingent of AFRC/RUF returned to Bombali District in April or May 1998 and established a base at Rosos. The Prosecution submitted that they engaged in the forced labour and military training of abducted civilians, including children, and attacked several villages in the area including Karin, Gbendembu, Bonyoyo (or Bornoya), Mayombo, Mafabu, Malama and Mandaha. It submitted that AFRC/RUF forces engaged in wide spread atrocities against civilians during these and other attacks throughout the district including, intentional killing of civilians in Bonyoyo (or Bornoya), Karina, Mafabu, Mateboi, Pendembu, Malama and Gbendembu, acts of sexual violence including rape, sexual slavery and other forms of sexual violence in locations throughout the district including Mandaha and Rosos, mutilations and amputations in several locations throughout the district including Lohondi, Malama, Mamaka, and Rosos, and the burning of houses and looting of property in many locations throughout the district including Karina and Mateboi.2749

2749 Prosecution Pre-Trial Brief, paras. 52–53. 1596 part iv

1543. In its Supplemental Pre-Trial Brief, the Prosecution submits that the amputation of limbs by members of the AFRC/RUF in Bombali District where civilians were told to “go to Kabbah” for new hands and that the burning of civilian property performed as part of the attacks on many villages throughout the District is evidence of collective punishment.2750 1544. In its Final Brief, the Prosecution submitted that “[…] the three Accused themselves gave orders for, and actively encouraged, killings physical and sexual violence and the burning of villages amounting to a campaign of terrorism” in Bombali District.2751 1545. In its Closing Arguments, the Prosecution argued that the evidence has shown that all the Accused travelled as commanders with their troops through Bombali attacking villages on the way. The Prosecution argued that their intent was to spread terror and to punish the civilian population for not supporting them and that their ultimate objective was to retain power.2752 1546. The Trial Chamber has found that acts of violence were committed against protected persons in Bornoya (Unlawful Killings); Karina (Unlawful Killings); Mateboi (Unlawful Killings); Gbendembu (Unlawful Killings); and Rosos (Rape, Physical Violence). The Trial Chamber has also found that incidents of Sexual Slavery and Enslavement occurred in the District. However, as the Trial Chamber has also found that enslavement and sexual slavery are acts of violence the primary purpose of which, in the factual circumstances of the conflict in Sierra Leone, was not to spread terror among the civilian population, evidence on these counts will not be considered further in this regard. 1547. The Trial Chamber will consider any evidence of burning in the locations in Bombali District particularised in the Indictment, namely, Karina and Mateboi. The Trial Chamber did not fĳind that any locations were conceded by the Prosecution with regards to Count 14 at the Rule 98 stage.2753 The evidence of burning in Karina and Mateboi which was adduced by the Prosecution will be examined below. (i) Mansofĳinia (Koinadugu District) to Camp Rosos (Bombali District) 1548. The evidence adduced with regards to Bombali District has demonstrated that AFRC troops moved from Mansofĳinia (Koinadugu District) to Camp Rosos (Bombali District). Specifĳically, the Trial Chamber has found that the Accused Brima returned to Mansofĳinia and led his troops to Rosos via the following

2750 Prosecution Supplemental Pre-Trial Brief, paras. 17, 300, 583. 2751 Prosecution Final Brief, para. 1516. 2752 Prosecution Closing Arguments, Transcript 7 December 2006, p. 41. 2753 Rule 98 Decision, para. 261. judgments 1597 path: from Mansofĳinia they fĳirst headed south into Kono district and passed Kondea (Kono), Worodu (Kono) and Yarya (Kono). From Yarya, the ‘hometown’ of the Accused Brima, the troops headed north east, back into Koinadugu district to Yifĳin (Koinadugu) and from there eastwards passing Kumala (Koinadugu), Bendugu (Koinadugu) toward the area near Bumbuna (Tonkolili district). From there the troops headed further towards the north east into Bombali district and passed Kamagbengbeh,2754 Bonoya (Bombali), Karina (Bombali), Pendembu2755 (Bombali), Mateboi (Bombali) and fĳinally Rosos (Bombali).2756 The Trial Chamber has established beyond a reasonable doubt that the civilian population was routinely targeted and attacked by soldiers and fĳighters on that route. The troops settled in Rosos and later a village named Major Eddie Town until the arrival of SAJ Musa in October/November 1998. 1549. Although no fĳindings have been made on acts of violence per Counts 3–14 in a number of these locations, the evidence demonstrates a consistent pattern of attacks against the civilian population during this time which is indicative of the primary purpose of the attacks. a. Mansofĳinia (Koinadugu District) 1550. In Mansofĳinia in May 1998, the First Accused Brima, gave orders to attack civilians. Witness TF1-334 testifĳied that during a meeting convened in Mansofĳinia to plan the trip North to Bombali District, Brima ordered that any civilian who tried to run away should be shot on sight and that if troops were attacked in any village that village should be burnt down. The Witness testifĳied that Brima warned the soldiers “Minus you, plus you” which TF1-334 explained meant that if a soldier should fail to go by those orders the operation would continue without him.2757 1551. Witness George Johnson gave evidence that he arrived in Mansofĳinia in April 1998, after the withdrawal of the troops from Kono. On his arrival, Alex Tamba Brima, Santigie Kanu and some other commanders went to meet SAJ Musa at Krubola. Upon their return, Brima and Kanu told Bazzy that the troops should be restructured and that a camp, later Camp Rosos, should be made at the Bombali axis.2758 A muster parade was called and the fĳighters were divided into battalions by FAT Sesay and promotions were given by Brima. The Witness was promoted to the rank of Provost-Marshal and given the role of ensuring disciplinary actions were taken against “the fĳighters” and to ensure that on all operations during the march to Camp Rosos the fĳighters adhered who broke the laws of “jungle justice”

2754 Also referred to as Magbengbeh. 2755 Also referred to as Gbendembu. 2756 Exhibit P-30(a), “Map of Sierra Leone.” 2757 TF1-334, Transcript 23 May 2005, pp. 15–17. 2758 George Johnson, Transcript 15 September 2005, pp. 47–48. 1598 part iv would be arrested and judged.2759 These laws included a prohibition against stealing government property, namely arms, ammunition and medical supplies and a prohibition against rape. Fighters who broke these laws would be punished by death or flogging.2760 b. Yaya (Kono District) 1552. The Trial Chamber recalls the evidence of witness TF1-033 that Brima addressed his troops publicly in Yaya2761 and advocated attacks on civilians.2762 The Trial Chamber is satisfĳied that the witness was in fact referring to the speech made by the Accused Brima at Mansofĳinia and therefore makes no further fĳind- ings on this evidence.2763 c. Kamagbengbeh (Bombali District) 1553. The Trial Chamber accepts the evidence of Prosecution Witness TF1-334, not previously evaluated by the Chamber, that at Kamagbengbeh in June of 1998, ‘Gullit’ tried to divide the troops and sent one group to attack Kambai and another to attack Karina. The troops argued against this division and ‘Gullit’ agreed instead to focus the attack on Karina. TF1-334 testifĳied that ‘Gullit’ called Karina a strategic point and said that it was the home town of President Ahmed Tejan Kabbah. ‘Gullit’ told the junta forces that they should demonstrate their power in Karina. He ordered the troops to burn down Karina, to capture strong male civilians, and to amputate civilians. ‘Gullit’ stated that he wanted the attack on Karina to shock the whole country and the international community. Kamara and Kanu were present during this speech and during the subsequent attack on Karina. There were no ECOMOG or Kamajor troops in Karina at the time.2764 d. Bornoya and Mateboi 1554. In its Opening Statement, the Prosecution submitted that “It is crucial for the Trial Chamber to appreciate that Bornoya, Karina, Mandaha and Mateboi were villages all in extremely close proximity too each other so one attack on one village was followed almost immediately by an attack on one of the other villages.”2765 The Prosecution submitted that the neighbouring villages of Bornoya, Daraya and Mayombo were attacked fĳirst, followed by an attack against Karina on the same day.2766 In its Closing Arguments the Prosecution argued that the attacks

2759 George Johnson, Transcript 15 September 2005, p. 49. 2760 George Johnson, Transcript 15 September 2005, p. 49. 2761 Also referred to as Yarya. 2762 TF1-033, Transcript 11 July 2005, pp. 8–15; Transcript 12 July 2005, p. 56. 2763 See discussion of this evidence in Military Structure of the AFRC Fighting Force, para. 584, supra. 2764 TF1-334, Transcript 23 May 2005, pp. 56–60, 61, 64–65. 2765 Prosecution Final Brief, para. 1500. 2766 Prosecution Opening Statement, Transcript 7 March 2005, p. 39. judgments 1599 on the villages in Bombali are strikingly similar and create a consistent pattern of how the Accused operated against civilians throughout the campaign, namely, attack their village, kill them, amputate them, burn their houses and abduct the strong men and children.2767 1555. The Trial Chamber has found that Bornoya was attacked in May of 1998 by AFRC troops including ‘Gullit,’ and ‘Five-Five’ ‘and that civilians were targeted and brutally assaulted during the attack. In particular, the Trial Chamber relies on its fĳindings that during the attack, troops split open the stomach of a pregnant woman named ‘Isatta’ and removed the foetus. The woman died as a result. Two children were burnt to death when they were placed under a mattress which was set on fĳire. An unspecifĳied number of other civilians were killed during the course of the attack.2768 1556. The Trial Chamber relies on its previous fĳindings that at an unspecifĳied 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.2769 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.2770 e. Karina 1557. In its Supplemental Pre-Trial Brief, the Prosecution submitted that the crimes committed during attacks on Mayombo, Bonoyo (or Bonyoyo), Daraya and Karina were carried out in a single day because it was believed that the inhabitants belonged to the Mandingo ethnic group, the same ethnic group as President Kabbah.2771 1558. In its Final Brief, the Prosecution argued that, “[…] burning down Karina on the basis that it was President Kabbah’s home town clearly amounts to punishing people for acts for which they are not responsible.”2772 1559. The Trial Chamber accepts the evidence of Prosecution Witness TF1-157 that after the attack on Karina, he heard rebels say that the town had been attacked because it was the home town of President Kabbah.2773 The Trial Chamber also accepts the evidence of Witness TF1-033 that he heard ‘Gullit’ say that Karina was the birthplace of President Ahmed Tejan Kabbah who had caused a lot of sufffering

2767 Prosecution Closing Arguments, Transcript 7 December 2006, p. 42. 2768 Factual Findings, Unlawful Killings, para. 884, supra. 2769 George Johnson, Transcript 15 September 2005, pp. 60–61. 2770 George Johnson, Transcript 15 September 2005, pp. 61–63. 2771 Prosecution Supplemental Pre-Trial Brief, paras. 17, 300, 583. 2772 Prosecution Final Brief, para. 986. 2773 TF1-157, Transcript 25 September 2005, pp. 29–30, 58–60; Transcript 26 September 2005, pp. 9, 23–24, 30. 1600 part iv against the AFRC and its supporters and that the AFRC should now return the same fate against the people of Karina and Bornoya.2774 Witness TF1-033 testifĳied that he also heard ‘Gullit’ give an order that civilian women should be stripped naked and raped during the attack on Karina, and the neighbouring town of Bornoya.2775 Witness George Johnson also testifĳied that he heard ‘Gullit,’ in the presence of Kamara and Kanu, order that Karina should be burnt down and the civilian inhabitants killed because it was the home town of Tejan Kabbah.2776 1560. The Trial Chamber has found that following these orders, on or about 8 May 1998, Karina was attacked by AFRC/Junta forces and that a number of such acts of violence were in fact carried out. 1561. The Trial Chamber has found that, the Accused Kamara and two other “juntas” locked fĳive young girls into a house and subsequently set it ablaze. The fĳive girls were burnt alive. “Juntas” threw an unspecifĳied number of little children into the flames of burning houses. The children were burnt alive. Soldiers stabbed a pregnant woman to death. A certain Saccoh Kankoh Fanta was injured during the attack and subsequently died. An unspecifĳied number of children were killed during the attack.2777 1562. ‘Cyborg,’ a security to the Accused Kamara, threw at least four children aged between fĳive and ten years from a two-storey building in Karina; however, it was not established beyond reasonable doubt that these children died as a result.2778 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 fĳire. The people were burnt alive.2779 1563. The Trial Chamber has found that the mosque in Karina was attacked and a number of civilians, including the man leading the prayers, were killed. The Trial Chamber accepts the evidence of witness TF1-334 that the Accused Brima was at the mosque and accused the man leading the prayers of supporting President Kabbah. Brima said to him: “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 Trial Chamber has found that civilians were killed on a massive scale in Karina.2780 f. Gbendembu 1564. The Trial Chamber has found that in or around August 1998, ‘Gullit’ ordered two AFRC commanders to attack Gbendembu because there were purportedly

2774 TF1-033, Transcript 11 July 2005, pp. 18–19. 2775 TF1-033, Transcript 11 July 2005, pp. 18–20. 2776 George Johnson, Transcript 15 September 2005, pp. 53–54. 2777 Factual Findings, Unlawful Killings, para. 888, supra. 2778 Factual Findings, Unlawful Killings, para. 889, supra. 2779 Factual Findings, Unlawful Killings, para. 890, supra. 2780 Factual Findings, Unlawful Killings, para. 891, supra. judgments 1601

ECOMOG and loyal SLA troops there. Witness TF1-033 heard that 25 civilians were killed in the attack and that ‘Gullit’ commended his men on a ‘job well done.’ g. Rosos 1565. The Trial Chamber accepts the evidence of Prosecution Witness TF1-334 that AFRC troops set up a base at Rosos in June of 1998 and remained there for approximately three months. The Accused Brima ordered that the troops should occupy the surrounding villages and that there should be no civilians within 15 miles of Rosos. He ordered captured civilians be executed rather than brought back to the camp and that he would take disciplinary action against any soldier who brought a civilian to the camp. He ordered “Operation Clear the Area” according to which the villages surrounding Rosos were burnt down and looted.2781 1566. The Trial Chamber also accepts the evidence of witness TF1-033 that in June 1998, he heard Brima order soldiers to kill any civilians they came in contact with in Rosos.2782 The Trial Chamber notes that witness TF1-267 similarly testifĳied that rebels told her that civilians who did not leave Rothung near Rosos would be killed.2783 1567. The Trial Chamber has found that while the troops were at Camp Rosos, at least three civilians were raped in or near Rosos2784 and that one was gang-raped and was badly beaten and stabbed during the attack.2785 (ii) Findings 1568. The acts of violence carried out by members of the AFRC against protected persons or their property in Bornoya, Mateboi, Karina, Gbendembu and Rosos were carried out in the context of a series of attacks in which civilians were deliberately targeted for allegedly failing to sufffĳiciently support the AFRC. There is evidence to suggest that these attacks were explicitly ordered by the First Accused in Mansofĳinia in May 1998 and in Yaya in April 1998. In Kamagbengbeh in June of 1998, the First Accused ordered the AFRC troops to attack Karina and to deliberately target civilians in order to “shock the whole country and the international community.” In Rosos, in June of 1998, the First Accused ordered that civilians should be cleared from the area within 15 miles from Rosos, that they should be executed rather than brought back to the Camp and that the surrounding villages should be burned and looted. 1569. The Trial Chamber has not been presented with any indication that the civilians in the villages attacked by the AFRC described above were armed.

2781 TF1-334, Transcript 23 May 2005, pp. 100–106. 2782 TF1-033, Transcript 11 July 2005, pp. 24–25. 2783 TF1-267, Transcript 27 July 2005, pp. 8–9, 10–11, 17, 23–26, 29–30. 2784 Factual Findings, Rape, para. 1034, supra. 2785 Factual Findings, Physical Violence, paras. 1282–2224, supra. 1602 part iv

No evidence been adduced to suggest that these villages were military targets in the sense that no discernable strategic advantage was gained from the attacks leading up to Camp Rosos nor was any territory held by the troops following the attacks. Rather, the troops moved on to the next village, ultimately settling in Camp Rosos. Once the troops arrived in Camp Rosos the attacks continued against civilians in the area. 1570. The Trial Chamber notes the particularly brutal nature of a number of the acts of violence committed against civilians during the attacks including the splitting open of the stomach of a pregnant woman and removal of the foetus and the burning of civilians alive. Similarly the Trial Chamber notes that a number of the acts of violence were carried out against particularly vulnerable persons – children and pregnant women. 1571. On this basis, the Trial Chamber is satisfĳied that the acts of violence committed by members of the AFRC against protected persons or the property in Bornoya, Mateboi, Mandaya, Karina, Gbendembu and Rosos can only reasonably be inferred to have been carried out with the primary purpose to spread terror among the civilian population. 1572. The Trial Chamber is further satisfĳied that the crimes committed also served as a punishment against protected persons. No evidence has been adduced to indicate whether the protected persons targeted in these attacks did or did not in fact support the elected government of President Ahmed Tejan Kabbah or factions aligned with that government. The Trial Chamber has held that the material element in the actus reus of the crime of collective punishment is not whether the acts were actually committed or not by the victims, but whether the perpetrator indiscriminately and collectively punished these individuals for acts that they might or might not have committed.2786 1573. The Trial Chamber is satisfĳied, on the basis of the evidence specifĳied above, that protected persons were collectively punished for allegedly supporting the President Ahmed Tejan Kabbah by members of the AFRC/RUF. (h) Freetown and Western Area (6 January 1999–28 January 1999) 1574. In its Final Brief, the Prosecution argued that “[i]n accounting for the crimes in Freetown the Prosecution stresses the great degree of hatred that already existed amongst the SLA faction towards Nigerian ECOMOG, the police, and the civilian population in general as it attacked Freetown. That hatred, the Prosecution submits, was a motivating factor behind many of the crimes that were committed in Freetown against the civilian population. Such hatred

2786 Applicable Law, paras. 668–669, supra. judgments 1603

stemmed from ECOMOG and civilians both killing and targeting soldiers and their families during the Intervention, the continuation of this practice whilst the SLAs were in the jungle, the numerous occasions when the civilians had betrayed the SLAs to the Kamajors and ECOMOG whilst they were in the jungle, and the execution of 24 senior AFRC offfĳicials in October 1998 by the Kabbah government whose Chief of Defence Stafff at that time was Nigerian General Maxwell Khobe, and whose execution was carried out by Nigerian soldiers. There is also evidence that SAJ Musa himself gave orders that once in Freetown, all police stations should be burnt down and all policemen, Nigerians [sic] soldiers, and SLPP collaborators should be targeted and killed during the attack on Freetown. An order which was endorsed by the First Accused when he assumed command after the death of SAJ Musa.”2787 1575. In its Final Brief, the Prosecution asserted that the Accused “[…] gave orders for, and actively encouraged, killings, mutilations and sexual violence and widespread burning of houses amounting to a campaign of terrorism.”2788 1576. The Prosecution has argued that the attacks against civilians continued as the AFRC retreated from Freetown. In its Pre-Trial Brief, the Prosecution submitted that the bulk of the AFRC/RUF forces fĳinally were pushed out of the city of Freetown by early February at which time the AFRC/RUF regrouped in Waterloo and coordinated later attacks on Tombo and Hastings before being completely pushed out of the Western Area.2789 In its Opening Statement, the Prosecution submitted that as the rebels were forced to withdraw by ECOMOG, they intensifĳied the pace of their killings, amputations, looting and burning particularly in the Kissy area.2790 1577. The Trial Chamber has found that acts of violence were carried out against protected persons or their property in Freetown (Unlawful Killings, Rape, Physical Violence, Pillage, Enslavement) and that civilians were subjected to sexual slavery in Freetown and the Western Area. The Trial Chamber has also found that children were abducted and used for military purposes in Freetown and the Western Area. As discussed above, the Trial Chamber does not consider that acts of enslavement, the abduction and use of child soldiers nor sexual slavery were acts the primary purpose of which was to spread terror among the civilian population. Evidence on these counts will not be considered further in this regard. 1578. The Prosecution has adduced evidence on acts of burning in Freetown. The Trial Chamber will consider this evidence below.

2787 Prosecution Final Brief, para. 395. 2788 Prosecution Final Brief, para. 1640. 2789 Prosecution Pre-Trial Brief, para. 63. 2790 Prosecution Opening Statement, 7 March 2005, p. 33. 1604 part iv

(i) State House 1579. The Trial Chamber has found that on 6 January 1999, AFRC forces under the command of the Accused Brima, and including the Accused Kamara and Kanu, invaded the city of Freetown. They gained control of Freetown and large parts of the Western Area.2791 1580. The Trial Chamber accepts the evidence of Prosecution Witness TF1-334 who testifĳied that he was present when ‘Gullit’ announced that it was time to attack Freetown and that the Sierra Leone People’s Party government was responsible for denying the success of the rebel troops. The Witness testifĳied that ‘Gullit’ ordered that Freetown should be looted and burnt down, that anyone who opposed the troops should be a considered a collaborator and should be killed.2792 This testimony is corroborated by Witness TF1-033 who heard Gullit order the burning of houses and the murder of civilians during the attack on Freetown.2793 Witness TF1-157 testifĳied that when the ARFC entered Freetown, they ordered the civilians to sing while they were burning their houses.2794 1581. The Trial Chamber relies also on its previous fĳindings that during the subsequent attack on Freetown in January 1999, civilians were mutilated and killed by ARFC forces because the AFRC believed the people of Freetown supported President Tejan Kabbah or failed to support the AFRC/RUF. 1582. In particular, the Trial Chamber relies upon its fĳindings that a certain “Junior Sherifff” brought a boy to the State House who was from Guinea-Bissau and shot him2795 and that at least four persons suspected to be Nigerian ECOMOG soldiers were executed, hors de combat by AFRC troops in the State House area. An AFRC commander named Lieutenant Colonel Kido shot and killed approximately six civilians because they had “overlooked” him, meaning that they did not pay sufffĳicient respect to him.2796 1583. The Trial Chamber has found that ‘Gullit’ told his fĳighters to force captured civilians to join the AFRC troops on their retreat, in order to replace those fĳighters killed by ECOMOG. Civilians who refused to join were shot in the presence of the Accused Brima and their dead bodies were thrown out the back of State House. The Trial Chamber has found that at least thirty civilians were killed. The Trial Chamber has found at least six other civilians were killed by AFRC troops at or near State House.2797

2791 Context of Alleged Crimes, paras. 202–205, supra. 2792 TF1-334, Transcript 13 June 2005, pp. 100–104. 2793 TF1-033, Transcript 11 July 2005, pp. 60–64. 2794 TF1-157, Transcript 26 September 2005, pp. 18–19, 23–24, 26, 29–30. 2795 Factual Findings, Unlawful Killings, para. 904, supra. 2796 Factual Findings, Unlawful Killings, para. 913, supra. 2797 Factual Findings, Unlawful Killings, para. 914, supra. judgments 1605

(ii) Kingtom 1584. The Trial Chamber relies in particular on its fĳindings that an unknown number of civilians in the area of Kingtom were killed by AFRC troops for allegedly collaborating with ECOMOG. The Trial Chamber has found that in the second week of the invasion, during an operation to reclaim Kingtom from ECOMOG soldiers broke civilian houses and killed the civilians inside because they perceived them as ‘traitors’ who were collaborating with ECOMOG. Witness TF1-334 testifĳied that soldiers would knock on the door of the house and if the door was not opened, they would force it open and “[t]he fĳirst person who came out was a dead person.”2798 (iii) Fourah Bay 1585. The Trial Chamber has found that during the attack on Freetown, in early January, AFRC troops retaliated against civilians in the Fourah Bay area and punished them for allegedly killing an AFRC soldier. 1586. Specifĳically, the Trial Chamber relies on its fĳindings that after the troops lost State House and Eastern Police, the Accused Brima received information that the people of Fourah Bay had killed one of his soldiers and announced that he would lead the AFRC troops to Fourah Bay to burn houses and kill people in retaliation. The troops attacked Fourah Bay and a large number of civilians were killed including men, women and children burned inside houses. Soldiers shot people who attempted to escape from burning houses. The attack was not limited to Fourah Bay Road but encompassed the entire Fourah Bay area.2799 1587. The Trial Chamber has found that prior to the attack the Accused Brima 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.’2800 1588. The Accused Kanu gave a demonstration on amputation of civilians to AFRC troops in the Kissy Old Road area. Kanu 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).2801 1589. Brima then ordered the soldiers to move to the Upgun roundabout via Kissy Road. Upon arrival at Upgun, the troops were summoned in a muster parade. The Accused Kanu and the Accused Brima held a discussion and then Kanu told the troops that Brima had said that the civilians should be taught a lesson.

2798 Factual Findings, Unlawful Killings, paras. 917–918, supra. 2799 Factual Findings, Unlawful Killings, paras. 919–921, supra. 2800 Factual Findings, Physical Violence, para. 921, supra. 2801 Factual Findings, Physical Violence, para. 922, supra. 1606 part iv

Kanu 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.2802 1590. The troops were divided for the attack on Fourah Bay with the Accused Kanu as the commander of one group. After carrying out the orders, the troops were called back to where ‘Gullit’ was near Kissy Road.2803 On cross-examination, witness TF1-184 gave more detail about the alleged involvement of the Accused Kamara in burning in Kissy Road, Ross Road and Fourah Bay Road after a muster parade at Upgun, but the evidence was not linked explicitly to the attack involving the retaliatory killing of civilians. 1591. Following the attack on Fourah Bay, the Accused Kanu gave a further demonstration at Upgun. Kanu announced that it was time for the amputations to begin. He stated that he would carry out the fĳirst 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 diffference between what he referred to as ‘short sleeve’ and ‘long sleeve’ amputations. Kanu then told the civilians that since they voted for ‘Pa Kabbah’ they should go to him and ask him for hands. Ten more civilians were then rounded up, amputated at the elbow and told them to go to ‘Pa Kabbah’ or ECOMOG to complain.2804 1592. The Trial Chamber has found on the basis of the evidence of Prosecution Witness TF1-153 that while the AFRC headquarters was at PWD, a soldier came from Fourah Bay “with his head bust” reporting that the civilians there had been fĳighting the soldiers. 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 testifĳied that from this conversation he understood that the machetes from the warehouse had been used to amputate people.2805 (iv) Kissy a. Good Shepherd Hospital 1593. The Trial Chamber has found that on 18 January 1999, a group of “juntas” went to the Good Shepherd Hospital in Kissy and accused personnel there of

2802 Factual Findings, Unlawful Killings, paras. 919–926, supra. 2803 Factual Findings, Unlawful Killings, paras. 919–926, supra. 2804 Factual Findings, Physical Violence, para. 1229, supra. 2805 Factual Findings, Physical Violence, para. 1231, supra. judgments 1607 treating ECOMOG and Kamajors. They forced everybody out of the hospital – patients, nurses, stafff, and visitors – and beat them with a large stick called a ‘coboko,’ which has a rope tied to it.2806 1594. Civilians were taken from the Hospital, to a certain ‘Pa Zubay’s’ house a short distance away. The civilians were made to stand against a wall and the juntas opened fĳire and began shooting randomly from diffferent directions. Fifteen civilians were killed as a result of the shooting.2807 b. Rogbalan Mosque 1595. The Trial Chamber has found that AFRC fĳighters attacked a mosque in Kissy killing a number of civilians who were accused of being “enemies.” Witnesses testifĳied that the civilians were targeted because the AFRC fĳighters believed they were supporting President Kabbah and/or ECOMOG. Witness TF1-334 testifĳied that the Accused Brima told commanders prior to the attack that he had received information that civilians were harbouring ECOMOG forces in mosques. Brima further stated that AFRC troops should shoot and kill people they encounter in mosques, as these people were enemies. The witness stated that while the area had many mosques, Brima referred in particular to a mosque “down towards Shell Old Road, towards the junction” that was housing “collaborators.” 1596. Witness TF1-021 testifĳied that over fĳifteen 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 afffĳirmatively. 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 offfered it to their assailants so that they would leave. The men took the money and then began fĳiring 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. 1597. The Trial Chamber has found that at least 70 persons were killed during the attack.2808 c. Old Shell Road 1598. The Trial Chamber has found that at Old Shell road, immediately prior to the troops’ arrival at Kissy Mental Home, Osman Sesay a.k.a. ‘Changamulanga’ amputated six young civilian men at the elbow. ‘Changamulanga’ told the men to

2806 Factual Findings, Physical Violence, paras. 928–930, supra. 2807 Factual Findings, Unlawful Killings, paras. 934–936, supra. 2808 Factual Findings, Unlawful Killings, para. 1236, supra. 1608 part iv go to ‘Pa Kabbah’ and he would give them back their hands because they had voted for him.2809 d. Kissy Mental Home 1599. Trial Chamber relies on its fĳindings 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. Specifĳically, he ordered the witness, ‘Pikin,’ ‘Shrimp,’ ‘Hassim’ and others to go as far as they could towards “PWD” killing people.2810 1600. 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 fĳiring machine guns at the civilians, killing an unspec- ifĳied 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.2811 1601. The Trial Chamber further found on the evidence of witness George Johnson that on the same day 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 fĳighters, 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.2812 1602. The Trial Chamber relies on its fĳindings on the basis of the evidence of Witness TF1-184 that ‘Mines’ amputated an unknown number of civilians pursuant to an order issued by the Accused Brima. 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 fĳingers that are pointing at us, we shall ensure that all their hands are amputated.” When asked if anything occurred as a result of the Accused Brima’s words, the witness testifĳied that about one and a half hours later, AFRC soldier ‘Mines’ returned to Kissy Mental Home with a bag full of hands

2809 Factual Findings, Physical Violence, para. 1237, supra. 2810 Factual Findings, Unlawful Killings, para. 1239, supra. 2811 Factual Findings, Unlawful Killings, paras. 1237–1241, supra. 2812 Factual Findings, Physical Violence, para.1230, supra. judgments 1609 which he showed to ‘Gullit’ and others, including the witness. Witness TF1-184 also testifĳied 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.2813 e. Rowe Street 1603. The Trial Chamber has found that at unspecifĳied time in January 1999, at Rowe Street in the Kissy area of Freetown, AFRC fĳighters or persons associated with them captured eight civilians, lined them up and shot seven of them dead. The rebels put the remaining civilian’s hand on the ground, stood on his chest, stretched out his arms, and intentionally chopped offf his hand with an axe.2814

f. Fatamaran Street 1604. The Trial Chamber has found that on approximately 18 January 1999 rebels amputated the hands of the seven captured persons. At least one person died as a result of the amputation.2815 g. Old Road (Locust and Samuels area) 1605. The Trial Chamber has found that 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 offf 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 offf with two blows of an axe. The hand of a man named Pa Sorie was also cut. The rebels cut offf the fĳingers of a man named Mussa. The commander ordered the rebels to cut offf the entire hand and when Mussa begged for mercy, the rebels killed him.2816 h. Parsonage Street 1606. The Trial Chamber has found that 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. A soldier named ‘Captain Two Hand’ ordered the soldiers to cut offf the tenant’s hands. A rebel in civilian clothes used an axe to cut offf 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.” Soldiers then amputated witness TF1-278’s left hand.

2813 Factual Findings, Physical Violence, para. 1232, supra. 2814 Factual Findings, Physical Violence, para. 1233, supra. 2815 Factual Findings, Physical Violence, paras. 1056–1060, supra. 2816 Factual Findings, Unlawful Killings, para. 1235, supra. 1610 part iv

The witness testifĳied that his child shouted “Hey, soldier, don’t cut my father’s hand, please. He is working for us.” 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 offf your hand. Since you did not allow for peace we are saying good-bye to you.” i. PWD 1607. The Trial Chamber has also found that roughly three weeks after the 6 January 1999 invasion of Freetown, Brima, Kamara and Kanu went to PWD Junction to call for reinforcements from the RUF. After a failed attempt to recapture the State House, Brima returned to PWD which became a temporary headquarters. Around that time, Brima ordered the “troops” to abduct civilians in order to attract the attention of the international community. Kamara and Kanu were present also. Civilians, including a number of young girls were then abducted by the rebels and the commanders from Freetown and brought to the headquarters at PWD. 1608. The Trial Chamber fĳinds additionally that civilian property was wilfully burned by members of the AFRC during the retreat from Freetown. The Trial Chamber accepts the evidence of Prosecution Witness Gibril Massaquoi, not previously evaluated by the Chamber, that during the retreat from Freetown the Accused Kanu ordered “the war candle to be put on” meaning that houses in Freetown should be burnt.2817 The Trial Chamber also accepts the evidence of Prosecution Witness TF1-169 that the Kanu ordered the burning of houses at Goba Water.2818 Witness TF1-184 testifĳied that Kanu distributed petrol for the burning of Freetown.2819 Witness TF1-344 testifĳied that the Accused Brima ordered Calaba Town burnt down2820 and that the Accused Kanu participated in the burnings.2821 (v) Findings 1609. The acts of violence carried out by members of the AFRC against protected persons or their property during the AFRC invasion of Freetown in January 1999, were part of a planned and deliberate attack, ordered or carried out by all three Accused, in which protected persons were specifĳically targeted. These attacks continued during the AFRC retreat. The Trial Chamber notes the particularly brutal nature of some of the acts of violence. Members of the AFRC repeatedly amputated the hands a great number of protected persons. These mutilations can

2817 Gibril Massaquoi, Transcript 10 October 2005, p. 14. 2818 TF1-169, Transcript 6 July 2005, pp. 20–21. 2819 TF1-184, Transcript 27 September 2005, p. 65. 2820 TF1-334, Transcript 14 June 2005, p. 100. 2821 TF1-334, Transcript 14 June 2005, p. 100. judgments 1611 only be reasonably understood to have served as a grotesque public warning to civilians not to interfere with the AFRC troops. The Trial Chamber notes that a great number of protected persons were deliberately killed by members of the AFRC in targeted attacks or through indiscriminate shooting. The Trial Chamber also notes the repeated and express statements of members of the AFRC that such acts of violence were being committed because the civilian population had allegedly supported opponents of the AFRC, namely President Tejan Kabbah and the ECOMOG forces. 1610. On this basis, the Trial Chamber is satisfĳied that the acts of violence committed by members of the AFRC against protected persons or property during the AFRC invasion and retreat from Freetown in early 1999 were carried out with the primary purpose to spread terror among the civilian population. 1611. The Trial Chamber is further satisfĳied that these crimes also served as a punishment against protected persons. No evidence has been adduced to indicate whether the protected persons targeted during the invasion and retreat from Freetown did or did not in fact support the elected government of President Ahmed Tejan Kabbah and factions aligned with that government, in this instance ECOMOG, the Police and Nigerians, nor whether in fact the protected persons failed to provide sufffĳicient support to the AFRC/RUF. The Trial Chamber has held that the material element in the actus reus of the crime of collective punishment is not whether the acts were actually committed or not by the victims, but whether the perpetrator indiscriminately and collectively punished these individuals for acts that they might or might not have committed.2822 1612. The Trial Chamber is satisfĳied, on the basis of the evidence specifĳied above, that protected persons were collectively punished by members of the AFRC/RUF for allegedly supporting President Ahmed Tejan Kabbah, ECOMOG or other factions aligned with the government or for allegedly failing to provide sufffĳicient support to the AFRC/RUF. (i) Port Loko District (13 February 1998-June 1999) (January-April 1999) 1613. In its Final Brief, the Prosecution asserts that Kamara “[…] gave orders for, and actively encouraged, killings, physical and sexual violence and the burning of villages amounting to a campaign of terrorism”2823 in Port Loko District. It also asserted that, “[i]n a similar manner to attacks against civilians carried out by the Junta in other parts of Sierra Leone, those conducted by the Westside Boys in Port Loko District were done as part of the modus operandi to terrorise and punish civilians.”2824

2822 Applicable Law, paras. 677–681, supra. 2823 Prosecution Final Brief, para. 1724. 2824 Prosecution Final Brief, para. 1766. 1612 part iv

1614. The Trial Chamber has found that acts of violence were carried out by members of the AFRC against protected persons or their property in Manaarma (Unlawful Killings) and in Nonkoba (Unlawful Killings). The Trial Chamber has also found that civilians were forced into sexual slavery in Port Loko District, however, as sexual slavery, in the context of the conflict in Sierra Leone, has not been found to be acts the primary purpose of which was to spread terror among the civilian population, the Trial Chamber makes no further fĳindings in this regard. Burning was not particularised in Port Loko District and thus the Trial Chamber makes no fĳindings on the basis of any evidence of such adduced by the Prosecution. (i) Attacks on the way to and from Gberi Bana 1615. The Trial Chamber accepts the evidence of Prosecution Witness TF1-334, not previously evaluated by the Chamber, that the troops leaving Freetown went through Benguema (Western Area), Waterloo (Western Area), Newton (Western Area), Mamamah (Port Loko District), Mile 38 (Port Loko District), Magbeni (Port Loko District) and ultimately made a camp at a village called Gberi Bana (Port Loko District).2825 This route is largely corroborated by the testimony of Witness George Johnson; however, Witness George Johnson stated that the troops went through Four Mile close to Newton Junction, not through Newton itself. He also did not mention having gone through Magbeni and testifĳied that the troops set up base at “Gberibana,” also called “West Side” which the Trial Chamber is satisfĳied is the same location as “Gberi Bana.”2826 1616. During this time, the AFRC troops, under the overall command of the Second Accused Kamara, conducted a series of attacks on the proximate villages. 1617. The Trial Chamber relies in particular on the evidence of Prosecution Witness TF1-334 that after the troops left Newton, in approximately March 1999, they passed through a small village referred to by the Witness as “RDF.” There the Accused Kamara, ordered a certain ‘Kankada,’ his personal security offfĳicer, to take some men to “decorate” Mamamah Town. The Witness testifĳied that the Accused Kamara explained that by “decorate” he meant that soldiers should execute any civilians they captured and display them at Mamamah Junction. The Witness went to Mamamah Town and observed the bodies of 15 persons who had been executed and mutilated. Two of the victims were women, and three were children. The Witness testifĳied that the Accused Kamara congratulated his men on a job well done.2827 Witness TF1-334 also testifĳied that ‘Bazzy’ said that Mamamah should

2825 TF1-334, Transcript 15 June 2005, pp. 10–31. 2826 George Johnson, Transcript 15 September 2005, pp. 59–67. 2827 TF1-334, Transcript 15 June 2005, pp. 20–21. judgments 1613 be set on fĳire and himself participated in the burning.2828 Similarly, Witness TF1- 334 testifĳied that ‘Bazzy’ ordered that Mile 38 should be set on fĳire and himself participated in the burning. 1618. This evidence is generally corroborated by that of Witness George Johnson who testifĳied that he was with the Accused Kamara in “Mamamah” and that Kamara ordered soldiers to “make the terrain more fearful to slow the movement of the ECOMOG troops.” Witness George Johnson testifĳied that by this Kamara meant that people should be killed and put on display. The Witness testifĳied that fĳive men, civilians of Mamamah, were killed by ‘Cyborg’ with a machete and their remains were put on display on the main highway. The Witness also testifĳied that before the troops pulled out of Mamamah, Kamara ordered a house burnt down. The Witness testifĳied that were a number of civilians in the house, including some children aged 10 to 15. The Witness was present outside the house when one of the children trapped inside tried to escape. Kamara forced him at gunpoint back into the house and the child was burnt to death.2829 1619. This evidence is also generally corroborated by that of Witness TF1-023 that in approximately March of 1999, in Mile 38, he witnessed ‘Bazzy’ ordered the rebels to attack civilians in Mamamah Village in order to spread fear. The Witness stated that ‘Bazzy’ said that the rebels should kill people and instil fear as ECOMOG was already pushing them out.2830 The Witness also testifĳied that following the attack, he saw the rebels kill about 20 people. Their heads were cut offf and placed on sticks at roadblocks.2831 1620. Defence Witness DBK-129 testifĳied that he was at Mamamah during an SLA battle with ECOMOG during this period. He testifĳied that ‘Junior Lion’ gave the order to ‘Kankada’ to make the area “fearful.” The Witness testifĳied that civilians were killed and their heads displayed at checkpoints in order to scare the ECOMOG troops.2832 1621. Witness TF1-334 testifĳied that after passing through Mile 38, ‘Bazzy’ and the troops arrived at Magbeni.2833 There, ‘Bazzy’ ordered some of his men to cross the river and go to a village called Gberi Bana and make it a “civilian free area.” The Witness testifĳied that ‘Bazzy’ explained that civilians should be executed. The Witness subsequently went to Gberi Bana and saw approximately 15 “chopped” bodies. ‘Bazzy’ was present and commended his men on a job well done.2834

2828 TF1-334, Transcript 15 June 2005, p. 23. 2829 George Johnson, Transcript 15 September 2005, pp. 63–67. 2830 TF1-023, Transcript 10 March 1005, p. 36–37. 2831 TF1-023, Transcript 10 March 1005, p. 36–37. 2832 DBK-129, Transcript 9 October 2006, p. 88. 2833 TF1-334, Transcript 15 June 2005, p. 24. 2834 TF1-334, Transcript 15 June 2005, pp. 28–29. 1614 part iv

1622. Witness TF1-334 testifĳied that from the base in Gberi Bana, ‘Bazzy’ gave a number of orders to attack villages in the surrounding area. ‘Bazzy’ said that ECOMOG has taken over Masiaka and gave an order that those areas where ECOMOG was based should be attacked, burnt down and that any civilian captured should be executed.2835 1623. Witness TF1-334 testifĳied that ‘Bazzy’ called for Port Loko (Town) to be attacked. He also ordered that any village the troops reached on the way should be burnt down and civilians killed. The Witness testifĳied that ‘Bazzy’ stated that he did not want to see any civilians there other than those who were captured with the troops.2836 1624. Witness George Johnson also testifĳied that Kamara, in a meeting at Geri Bana, ordered an attack on Port Loko which was carried out sometime before 27 April 1999 (Independence Day in Sierra Leone).2837 However, George Johnson testi- fĳied that the purpose of the operation was to get arms and ammunition from Malian troops stationed there. George Johnson went on the operation which he described as successful. In unknown villages on the way to Port Loko, witness George Johnson observed civilians who had been killed and amputated. The Witness testifĳied that these acts were committed in part by SLA advance “blocking” troops, who went before him. Witness George Johnson believed ‘Cyborg’ was responsible for these acts and complained about this to Kamara upon his return to Geri Bana. The Witness testifĳied that he complained because the operation was meant to be purely to attack the Malians not to kill civilians.2838 1625. Witness George Johnson testifĳied that during the attack on Port Loko he came across a young woman who had her hands amputated. The Witness instructed a certain ‘Sammy,’ an Intelligence Offfĳicer’ to write a letter addressed to the Malians and place it around her neck, which he did.2839 1626. Witness TF1-334 testifĳied that from the base in Gberi Bana, ‘Bazzy’ ordered an operation to take place at Makolo. According to the Witness, ‘Bazzy’ stated that ECOMOG forces have a base there and that the troops should destroy the entire village, burn it down and that if they encountered any civilians they should be executed. The Witness went on this operation and observed that three ECOMOG soldiers were executed and that three young women were chopped to death with an axe.2840

2835 TF1-334, Transcript 15 June 2005, p. 32. 2836 TF1-334, Transcript 15 June 2005, p. 35. 2837 George Johnson, Transcript 15 September 2005, p. 79. 2838 George Johnson, Transcript 15 September 2005, pp. 75–77. 2839 George Johnson, Transcript 15 September 2005, pp. 77–78. 2840 TF1-334, Transcript 15 June 2005, p. 39. judgments 1615

1627. Witness George Johnson testifĳied that from the base in Geri Bana, Kamara ordered operations on Newton junction and Mile 38. The witness was the operation commander for both these attacks. Unlike the attacks described by witness TF1-334, witness George Johnson testifĳied that the purpose of these attacks was to fĳind arms and ammunition.2841 (ii) Manaarma 1628. The Trial Chamber has found a group of rebels under the command of ‘Junior Lion’ attacked Manaarma en route to Port Loko, where they engaged the Malian ECOMOG soldiers in combat at Shelenker/Shelenka secondary school. The Trial Chamber has also found that on an unspecifĳied date, soldiers took an unknown number of women to a house where they were all killed. Witness TF1- 253 testifĳied that in April 1999, he saw a pregnant woman whose head had been severed and her stomach opened by the “rebels.” (iii) Nonkoba 1629. 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.2842 (j) Finding 1630. The Trial Chamber fĳinds there is evidence to suggest that a pattern of attacks against protected persons or their property was conducted with the purpose of terrorising the civilian population. However, given the evidence of witness George Johnson, the Trial Chamber is of the opinion that spreading terror was not the only purpose and in fact, may not have been the primary purpose of the attacks ordered by the Accused Brima or others. Regardless, the Trial Chamber fĳinds that there is insufffĳicient evidence linking the acts of violence found by the Chamber to have occurred in Manaarma, Nonkoba and Tendekum – the only acts of violence which have been established beyond a reasonable doubt by this Chamber and the only acts particularised in the Indictment in which the Defence was put on notice - with the attacks ordered by the Accused Brima. 1631. The Trial Chamber is therefore not satisfĳied that these acts of violence were committed against protected persons or their property in Manaarma or Nonkoba with the primary purpose of spreading terror among the civilian population. 1632. The Trial Chamber is neither satisfĳied that the crimes committed in Manaarma and Nonkoba served as punishment against protected persons.

2841 George Johnson, Transcript 15 September 2005, pp. 79–80. 2842 DBK-111, Transcript 18 September 2006, pp. 43–45. 1616 part iv

3. Finding on Count 1 1633. By virtue of the foregoing and of the Trial Chamber’s fĳindings with regards to the Chapeau elements of war crimes, the Trial Chamber is satisfĳied that the elements in relation to Count 1 (Terror) are established.

4. Finding on Count 2 1634. By virtue of the foregoing and of the Trial Chamber’s fĳindings with regards to the Chapeau elements of war crimes, the Trial Chamber is satisfĳied that the elements in relation to Count 2 (Collective Punishment) are established. judgments 1617

XI. Responsibility of the Accused

A. Preliminary Remarks 1635. The Prosecution alleges that “Alex Tamba Brima, Brima Bazzy Kamara and Santigie Borbor Kanu, 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 the Indictment, which crimes each of them planned, instigated, ordered, committed or in whose planning, preparation or execution each Accused otherwise aided and abetted, or which crimes were within a joint criminal enterprise in which each Accused participated or were a reasonably foreseeable consequence of the joint criminal enterprise in which each Accused participated.”2843 1636. The Prosecution further alleges that “In addition, or alternatively, pursuant to Article 6.3 of the Statute, Alex Tamba Brima, Brima Bazzy Kamara and Santigie Borbor Kanu, while holding positions of superior responsibility and exercising efffective control, over their subordinates, are each individually criminally responsible for the crimes referred to in Articles 2, 3 and 4 of the Statute. Each Accused is responsible for the criminal acts of his subordinates in that he knew or had reason to know that the subordinate was about to commit such acts or had done so and each Accused failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof.”2844 1637. The Indictment alleges additionally, in relation to the Counts set out therein, that “by their acts or omissions in relation to these events, Alex Tamba Brima, Brima Bazzy Kamara and Santigie Borbor Kanu, pursuant to Article 6(1) and, or alternatively, Article 6(3) are individually criminally responsible for the crimes alleged […].”2845 1638. The Trial Chamber’s factual fĳindings with regard to the crimes committed under the various Counts in the Indictment are contained in Chapter 10 of this Judgement.2846 In making the following fĳindings on the individual criminal responsibility of each of the Accused, the Trial Chamber takes into account its factual fĳindings in that Chapter and the detailed assessment contained in that Chapter as well as other relevant Chapters of the Judgement. In this Chapter, the Trial Chamber will determine in light of the evidence on record, whether each of the Accused bears individually criminal liability for such crimes under Article 6(1) or 6(3) of the Statute. Where the Parties have made specifĳic submissions with regard

2843 Indictment, para. 35. 2844 Indictment, para. 36. 2845 Indictment paras. 41, 50, 57, 64, 65, 73, 79. 2846 See Factual Findings, supra. 1618 part iv to an Accused, crime base or mode of liability, these have been considered as they arise in the fĳindings below. 1639. Finally, in view of the Trial Chamber’s earlier fĳinding that the Prosecution’s pleading of “joint criminal enterprise” as a mode of liability in the Indictment was defective,2847 the Trial Chamber makes no fĳindings on the alleged individual criminal responsibility of the Accused under a ‘joint criminal enterprise.’

B. The Accused Brima 1. Allegations in the Indictment 1640. The Indictment alleges: At all times relevant to this Indictment, Alex Tamba Brima was a senior member of the AFRC/RUF forces. Alex Tamba Brima was a member of the group which staged the coup and ousted the government of President Kabbah. Johnny Paul Koroma, Chairman and leader of the AFRC, appointed Alex Tamba Brima a Public [sic] Liaison Offfĳicer (PLO) within the AFRC. In addition, Alex Tamba Brima was a member of the Junta governing body. Between mid February 1998 and about 30 April 1998, Alex Tamba Brima was in direct command of AFRC/RUF forces in the Kono District. In addition, Alex Tamba 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. As of about 22 December 1998, Alex Tamba Brima was in command of AFRC/RUF forces which attacked Freetown on 6 January 1999. […] In [his] positions referred to above, Alex Tamba Brima, […] individually or in concert with [the Accused Kamara and the Accused Kanu], Johnny Paul Koroma aka JPK, Foday Saybana Sankoh, Sam Bockarie aka Mosquito aka Maskita, Issa Hassan Sesay aka Issa Sesay, Morris Kallon aka Belai Karim, Augustine Gbao aka Augustine Bao and/or other superiors in the AFRC, Junta and AFRC/RUF forces, exercised authority, command and control over all subordinate members of the AFRC, Junta and AFRC/ RUF forces. […] Alex Tamba Brima, […] by [his] acts or omissions, [is] 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 [he] planned, instigated, ordered, committed or in whose planning, preparation or execution [he] otherwise aided and abetted, or which crimes were within a joint criminal enterprise in which [he] participated or were a reasonably foreseeable consequence of the joint criminal enterprise in which [he] participated.

2847 Alleged Defects in Form of Indictment, para. 56, supra. judgments 1619

In addition, or alternatively, pursuant to Article 6.3. of the Statute, Alex Tamba Brima, […] while holding positions of superior responsibility and exercising efffective control over [his] subordinates, [is] individually criminally responsible for the crimes referred to in Articles 2, 3 and 4 of the Statute. [The] Accused is responsible for the criminal acts of his subordinates in that he knew or had reason to know that the subordinate was about to commit such acts or had done so and […] failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof.2848

2. Bo, Kenema and Kailahun Districts 1641. In its factual fĳindings, the Trial Chamber found that in Bo District in June 1997 AFRC/RUF forces unlawfully killed an unknown number of civilians, as charged under Counts 4 through 5,2849 and terrorised civilians and subjected them to collective punishment, as charged under Counts 1 and 2.2850 1642. The Trial Chamber also found that in Kenema District between 25 May 1997 – 14 February 1998, AFRC/RUF forces committed a number of crimes including unlawfully killing a number of civilians, as charged under Counts 4 and 5;2851 inflicting physical violence on an unknown number of civilians as charged under Count 10;2852 illegally recruiting and using children under the age of 15 years for military purposes, as charged under Count 12;2853 abducting an unknown number of civilians and using them as forced labour at Cyborg Pit in Tongo Field, as charged under Count 13;2854 and terrorising civilians and subjecting them to collective punishment, as charged under Count 1 and 2.2855 1643. The Trial Chamber further found that in Kailahun District during the Junta period, RUF troops abducted civilians and used them as forced labour, as charged under Count 13.2856 (a) Responsibility of the Accused Brima under Article 6(1) of the Statute (i) Submissions 1644. In its Final Trial Brief the Prosecution makes no submissions with regard to the individual criminal responsibility of the Accused Brima pursuant to Article 6(1) of the Statute. The Prosecution only alleges that “[f]or all crimes committed in Kailahun District during the Indictment period, the three Accused are

2848 Indictment, paras. 22–24, 31, 35–36. 2849 Factual Findings, para. 826, supra. 2850 Factual Findings, para. 1497, supra. 2851 Factual Findings, para. 840, supra. 2852 Factual Findings, para. 1197, supra. 2853 Factual Findings, para. 1277, supra. 2854 Factual Findings, para. 1309, supra. 2855 Factual Findings, paras. 1475–1476, supra. 2856 Factual Findings, para. 1374, supra. 1620 part iv individually criminally responsible under the theory of joint criminal enterprise, in that the crimes were in the contemplation of the common enterprise or were a reasonably foreseeable consequence of its implementation.”2857 The Prosecution further submits that the Accused Brima held a signifĳicant position in the AFRC government and that he attended meetings at which crimes were discussed. The Prosecution submits that this is evidence of planning, instigating and aiding and abetting.2858 The Prosecution makes no submissions as to whether or not the Accused Brima ordered or committed the alleged crimes. 1645. In its Final Trial Brief, the Brima Defence submits that no reliable evidence of instigation, ordering, committing, or aiding or abetting has been adduced by the Prosecution against the Accused Brima in relation to the Districts of Bo, Kenema and Kailahun during the relevant Indictment period.2859 The Brima Defence further submits that the Prosecution led no evidence of any attack on Bo by the AFRC in general or the Accused Brima in particular;2860 nor evidence to prove that the Accused Brima had superior control over the perpetrators of the alleged crimes in those Districts. The Brima Defence instead relies on Brima’s alibi defence for those Districts.2861 The Brima Defence submits that throughout the Indictment period Kailahun District was under the control of the RUF.2862 In addition, it argues that the Accused was detained by the RUF in Kailahun District during the relevant period and was not in a position of superior commander over the perpetrators of the alleged crimes in Kailahun.2863 (ii) Findings a. Committing 1646. The Prosecution has not adduced any evidence that the Accused Brima committed any of the crimes that occurred in Bo, Kenema and Kailahun Districts during the relevant Indictment period. The Trial Chamber therefore fĳinds pursuant to Article 6(1) of the Statute that the Prosecution has not proved this mode of individual criminal responsibility against the Accused Brima in respect of the crimes committed in those Districts during the relevant Indictment period. b. Ordering 1647. The Prosecution has not adduced any evidence that the Accused Brima ordered the commission of any of the crimes committed in Bo, Kenema and

2857 Prosecution Final Brief, para. 1372. 2858 Prosecution Final Brief, para. 498. 2859 Brima Final Brief, paras. 84, 87, 90, 93. 2860 Brima Final Brief, para. 241. 2861 Brima Final Brief, paras. 248–255, 206–213. 2862 Brima Final Brief, para. 227. 2863 Brima Final Brief, paras. 207–213, 224, 288. judgments 1621

Kailahun Districts during the relevant Indictment period. The Trial Chamber therefore fĳinds pursuant to Article 6(1) of the Statute that the Prosecution has not proved this mode of individual criminal responsibility against the Accused Brima in respect of the crimes committed in those Districts during the relevant Indictment period. c. Planning 1648. The Trial Chamber recalls its fĳinding that the Accused Brima participated in high-level coordination meetings of the AFRC government during the Junta period but that no evidence was adduced that the crimes committed in Bo, Kenema and Kailahun Districts were planned at these meetings.2864 The Trial Chamber is therefore not satisfĳied that the Accused Brima made a substantial contribution to the planning of these crimes and fĳinds pursuant to Article 6(1) of the Statute that the Prosecution has not proved this mode of individual criminal responsibility against the Accused Brima in respect of the crimes committed in those Districts during the relevant Indictment period. d. Instigating 1649. The Prosecution has not adduced any evidence that the Accused Brima prompted or influenced the perpetrators of the crimes committed in Bo, Kenema and Kailahun Districts during the relevant Indictment period. The Trial Chamber therefore fĳinds pursuant to Article 6(1) of the Statute that the Prosecution has not proved this mode of individual criminal responsibility against the Accused Brima in respect of the crimes committed in those Districts during the relevant Indictment period. e. Otherwise aiding and abetting 1650. The Prosecution has not adduced any evidence that the Accused Brima gave practical assistance, encouragement or moral support which had a substantial efffect on the perpetration of crimes in Bo, Kenema and Kailahun Districts during the relevant Indictment period. The Trial Chamber therefore fĳinds pursuant to Article 6(1) of the Statute that the Prosecution has not proved this mode of individual criminal responsibility against the Accused Brima in respect of the crimes committed in those Districts during the relevant Indictment period. (b) Responsibility of the Accused Brima under Article 6(3) of the Statute (i) Submissions 1651. In its Final Brief, the Prosecution submits that the Accused Brima is individually criminally responsible under Article 6(3) of the Statute for crimes committed by his subordinates during the AFRC Government period by virtue of his

2864 Role of the Accused, para. 318, supra. 1622 part iv membership of the Supreme Council, which had control over the police and political authority over the military.2865 The Prosecution points to evidence establishing that the Accused regularly attended Supreme Council meetings and held an important position in the mining industry. The Prosecution further contends that that he had power and authority over soldiers and offfĳicers of higher rank during the AFRC/RUF Government period.2866 1652. The Brima Defence submits that the Accused Brima possessed no military authority and played “at best” a political role within the AFRC Government.2867 (ii) Findings a. Existence of a superior-subordinate relationship 1653. It is well established that relationships of efffective control exist in civilian organisational structures.2868 The Trial Chamber reiterates that the existence of a superior-subordinate relationship is a question of fact, to be determined in light of all the available evidence. In each case what is required is proof beyond reasonable doubt that the Accused possessed the actual or material ability to efffectively control his or her subordinates.2869 Before turning to the crimes committed in each District, the Trial Chamber will set out the evidence relating to the Accused Brima’s superior position in general. 1654. The Trial Chamber found that the Accused Brima was a member of the AFRC Supreme Council and was appointed Principal Liaison Offfĳicer 2, in which capacity he supervised and monitored various Government ministries.2870 The Prosecution in its Supplementary Pre-Trial Brief stated that the Accused Brima “held a position, individually or in concert with other AFRC/RUF superiors, superior to the AFRC/RUF subordinates.”2871 The Prosecution therefore relies on the Accused Brima’s de jure position as a senior member of the AFRC Government to prove that he was in a superior-subordinate relationship with the AFRC/RUF members who committed crimes in the various Districts. The Trial Chamber is not persuaded by this reasoning for three reasons. 1655. Firstly, the Prosecution’s general characterisation of both RUF and AFRC members as “the Accused Brima’s subordinates” is untenable for the following

2865 Prosecution Final Brief, paras. 521–524. 2866 Prosecution Final Brief, paras. 500–504. 2867 Brima Final Brief, para. 103. 2868 Applicable Law, para. 782, supra. 2869 See Čelebići Trial Judgement, paras. 735–736; also at paras. 377–378, cited with approval in Čelebići Appeal Judgement; cited with approval in Bagilishema Trial Judgement, 7 June 2001, at paras. 42, 45. 2870 Role of the Accused, paras. 321–325, supra. 2871 Prosecution Supplementary Pre-Trial Brief, paras. 24, 32. judgments 1623 reasons. Although the two groups were allied in one Government and worked closely together during the AFRC Government period, the available evidence suggests that individuals continued to identify themselves as either RUF or SLA and that at an organisational level separate commanders for each group co-existed in the Districts.2872 The Trial Chamber is therefore not satisfĳied that the Accused Brima exercised efffective control over members of the RUF merely by virtue of his de jure position within the AFRC Government administration in Freetown. 1656. Secondly, the Trial Chamber found that the Prosecution did not establish that the members of the Supreme Council had the collective ability to efffectively control the military, as the military retained its own distinct chain of command and organisational structure. In this regard the Trial Chamber recalls the following evidence. Witness TF1-184 stated in cross-examination that the top army offfĳicers during the AFRC period were the Army Chief SO Williams, the Defence Deputy Avivavo, the Chief of Defence Stafff Koroma, the battalion commanders and from then on down the ranks of the military. He stated that the military headquarters at Cockerill were distinct from the Council members and that in some cases the military had complete control over military operations, in other cases the civil authorities would ‘interfere’ with the military and vice versa.2873 There was defĳinite overlap between the two institutions, as witness Gibril Massaquoi testifĳied that Chief of Army Stafff Colonel SO Williams and Chief of Defence Stafff SFY Koroma were members of Supreme Council,2874 as were SAJ Musa and lower ranking soldiers like the three Accused. However, the Supreme Council was the body that oversaw law-making and decision-making in the country. It met once a month, apart from emergency meetings.2875 The Trial Chamber is not satisfĳied, in light of the above evidence, that the Supreme Council was involved in or responsible for planning the day-to-day operations of the military throughout the country. 1657. Thirdly, the Trial Chamber notes that very little evidence has been adduced relating to the Accused Brima’s de facto position and functions as a senior member of the AFRC so as to enable the Trial Chamber to reach any conclusion regarding his relationship with alleged subordinates based on that position alone. Membership of the Supreme Council and attendance at meetings per se, does not sufffĳice to prove beyond reasonable doubt that Brima was in a superior- subordinate relationship with the perpetrators of the offfences committed in Bo, Kenema and Kailahun Districts during the relevant Indictment period. As stated above in the Trial Chamber’s discussion of the applicable law, the authority of members of a power-sharing collegiate body like the Supreme Council must be

2872 Gibril Massaquoi, Transcript 10 October 2005, p. 98. 2873 TF1-184, Transcript 30 September 2005, pp. 47–49. 2874 Gibril Massaquoi, Transcript 7 October 2005, p. 73. 2875 Gibril Massaquoi, Transcript 7 October 2005, p. 72. 1624 part iv assessed on a case-by-case basis and requires an analysis of the functions of the particular Accused.2876 The Trial Chamber fĳinds that there is no evidence that within the Supreme Council the Accused Brima possessed any individual decision-making capability. 1658. The only evidence before the Trial Chamber relating to his actual functions as PLO 2 is that he was nominally in charge of several Government ministries.2877 It is assumed that the Accused Brima would have had the power to give orders in relation to work carried out under his Ministries. However, there is no evidence regarding the type of issues that came within his portfolios or to whom he would have been entitled to issue orders, even apart from the question of whether such orders were issued and obeyed. 1659. The Prosecution submits that the Accused’s position as “an Honourable” gave him authority over soldiers and offfĳicers of higher rank, on the basis that position precedes rank in the military. The Prosecution consequently submits that the Accused Brima was subordinate only to Johnny Paul Koroma, Foday Sankoh and Abu Sankoh. The Trial Chamber is thus invited to accept that the Accused was capable of exercising control over any other person in the AFRC. The Trial Chamber is not persuaded by this theory. Proof of superior responsibility requires conclusive evidence of the actual exercise of command and control over an iden- tifĳiable group of subordinates. The Trial Chamber agrees that the Accused Brima enjoyed a privileged position on the Supreme Council as one of the original coup- plotters, as an ‘Honourable’ and as PLO 2. However, the Prosecution evidence adduced regarding his de jure position is insufffĳicient to persuade the Trial Chamber to draw a conclusion, based on that position alone, that Brima had efffective control over subordinate perpetrators of the crimes in the said districts, during the AFRC Government period. 1660. The evidentiary burden required to establish ‘efffective control’ is high. For example in Kordić, the court failed to fĳind ‘control’ despite the fact that the defendant, a civilian, wore a military uniform, held the title of ‘colonel,’ issued orders for military equipment and supplies, managed personnel, represented the Croatian forces in UN negotiations, exercised control over roads, roadblocks, and prisoners, participated in planning, was physically present during military operations, and provided “political authorization” for ethnic cleansing campaigns.2878 The Trial Chamber will now examine the evidence adduced by the Prosecution regarding Brima’s alleged superior responsibility in relation to the Districts of Bo, Kenema and Kailahun in which crimes were found to have been committed by AFRC/RUF troops during the Junta period.

2876 Applicable Law, para. 786, supra. 2877 Role of the Accused, Brima, para. 321, supra. 2878 Kordić Trial Judgement, paras. 546–631, 838. judgments 1625

i. Bo District (1 – 30 June 1997) 1661. The Prosecution evidence showed that administratively, Bo District fell within the responsibility of AFRC Secretary of State East Eddie Kanneh.2879 Although superior responsibility is not precluded by the existence of other superiors in relation to the same subordinates, there is no evidence that the Accused Brima’s responsibilities as PLO 2 overseeing Eddie Kanneh entailed command of AFRC/RUF forces stationed in Bo District. ii. Kenema District (25 May 1997 – 19 February 1998) 1662. Evidence before the Trial Chamber shows that AFRC forces in Kenema District were under the command of Secretary of State East Eddie Kanneh, who reported directly to Johnny Paul Koroma.2880 The Trial Chamber heard evidence that the Accused Brima was involved in mining activities in Kono District but that he did not have any executive powers in relation to these activities.2881 The Trial Chamber notes that the three Accused have not been charged with enslavement in Kono District during the Junta period. The Accused Brima’s involvement in Kono District is insufffĳicient to prove that he possessed the material ability to prevent or punish the persons responsible for the use of civilians as forced labour in Kenema District during the Junta period. iii. Kailahun District (27 May 1997 – 14 February 1998) 1663. It has not been established beyond reasonable doubt that AFRC troops were present in Kailahun during this period. Indeed, Prosecution witness TF1-334 testifĳied that there were no AFRC troops in Kailahun during the Junta period.2882 The area was controlled by Sam Bockarie of the RUF and his deputy Issa Sesay.2883 In the absence of evidence that the Accused Brima exercised any superior authority or control over the RUF troops in Kailahun District, the Trial Chamber fĳinds that the Prosecution has not established beyond reasonable doubt that the Accused Brima is individually criminally responsible pursuant to Article 6(3) of the Statute for the crimes committed in Kailahun District during the Junta period. b. Findings 1664. The Trial Chamber fĳinds that the Prosecution has not established beyond reasonable doubt that the Accused Brima was in a superior-subordinate relationship with the perpetrators of any of the crimes committed in Bo, Kenema and Kailahun Districts during the Junta period. As the absence this fĳirst element of superior responsibility is fatal to proof of liability under Article 6(3), the Trial

2879 TF1-334, Transcript 17 May 2005, pp. 54, 57. 2880 TF1-334, Transcript 17 May 2005, pp. 54, 57. 2881 Although witness TF1-334 testifĳied that ‘Gullit’ was in overall charge of mining operations in Kono: Transcript 17 May 2005, pp. 52–53. 2882 TF1-334, Transcript 16 June 2005, p. 77. 2883 Context of Alleged Crimes, para. 188, supra. 1626 part iv

Chamber will not consider the evidence relating to the Accused Brima’s actual or imputed knowledge of crimes committed and his ability to prevent or punish the perpetrators.

3. Kono District 1665. The Trial Chamber found that in the period mid-February to June 1998, AFRC/RUF troops in Kono District unlawfully killed civilians,2884 committed sexual slavery and physical violence against civilian population;2885 abducted civilians and used them as forced labour;2886 and illegally recruited and used children under the age of 15 years for military purposes, as charged under the Indictment.2887 The Trial Chamber also found that AFRC/RUF troops engaged in widespread looting;2888 and committed various crimes against the civilian population as collective punishments.2889 (a) Responsibility of the Accused Brima under Article 6(1) (i) Submissions 1666. The Prosecution in its Final Brief, submits that all three Accused are liable for crimes committed in Kono District under its theory of JCE. The Prosecution then submits that only Kamara bears liability under Articles 6(1) and (3) of the Statute.2890 In its closing arguments the Prosecution asserts that for Kono, during the crimes committed in the Indictment period after the intervention, 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 the theory of a JCE.2891 1667. The Brima Defence submits that the Prosecution failed to establish a nexus linking the Accused Brima to the crimes committed in Kono District. Furthermore, the Brima Defence submits that the Accused Brima arrived in Kono around May 1998 only to be arrested and detained by Sam Bockarie in Kailahun.2892 The Brima Defence also relies on its submissions regarding the Accused Brima’s alibi for this period,2893 which the Trial Chamber has considered above.2894

2884 Factual Findings, para. 857, supra. 2885 Factual Findings, paras. 1109, 1213, supra. 2886 Factual Findings, para. 1333, supra. 2887 Factual Findings, paras. 1277–1278, supra. 2888 Factual Findings, para. 1415, supra. 2889 Factual Findings, paras. 1525–1527, supra. 2890 Prosecution Final Brief, para. 1279. 2891 Transcript, 7 December 2006, pp. 34–35. 2892 Brima Final Brief, para. 224. 2893 Brima Final Brief, paras. 206–210. 2894 Role of the Accused, para. 342, supra. judgments 1627

(ii) Findings 1668. The Trial Chamber has already held above that it will not consider any responsibility under joint criminal enterprise. The Prosecution has not adduced any evidence that the Accused Brima committed, ordered, planned, instigated, or otherwise aided and abetted any of the crimes that occurred in Kono District. The Trial Chamber fĳinds that the Prosecution has not proved any of these modes of individual criminal responsibility against the Accused Brima for the crimes committed in the Kono District. (b) Responsibility of the Accused Brima under Article 6(3) of the Statute (i) Submissions 1669. The Prosecution, in its Final Brief, concedes that the Accused Brima left Kono for Kailahun during the ECOMOG Intervention in Freetown of February 1998, but argues that he returned to Kono by late April or early May 1998.2895 It contends that while the Accused may have had some disagreement with the RUF faction under Sam Bockarie in Kailahun, this only lasted a few days after which the Accused was “back on good terms with Sam Bockarie and other RUF commanders in Kailahun.”2896 In other words, the Prosecution contends that despite his physical absence the Accused continued to play an influential role in the events that took place in Kono District and in the joint criminal enterprise with the RUF. 1670. The Prosecution in its Final Brief makes no submissions on the superior responsibility of the Accused Brima in relation to Kono District during the period mid-February 1998 to the end of April 1998. The Prosecution concedes that the Accused Brima arrived in Kono District only at the end of April or beginning of May. 1671. The Brima Defence submits that the Prosecution has failed to provide clear evidence on the command and control structure of the SLAs in Kono District.2897 The Brima Defence also submits that ‘Savage’ was in command of Tombodu and was not controlled by his SLA superiors.2898 The Accused Brima argues that he cannot be held responsible for the activities of persons over whom he exercised no control.2899 (ii) Findings 1672. The Trial Chamber has found that the Accused Brima arrived in Kono District from Kailahun District at the end of April or beginning of May 1998.2900

2895 Prosecution Final Brief, para. 1214. 2896 Prosecution Final Brief, para. 601. 2897 Brima Final Brief, para. 105. 2898 Brima Final Brief, para. 281. 2899 Brima Final Brief, para. 282. 2900 Role of Accused, Brima, paras. 339–341, supra. 1628 part iv

Upon his arrival, the Accused Brima assumed command of the AFRC troops from the Accused Kamara.2901 There are a number of indicia from the evidence that demonstrate that upon assuming command of the AFRC troops, the Accused Brima exercised efffective control over the AFRC troops in Kono District. The Accused Brima immediately summoned the Accused Kamara, the Operations Commander and other senior SLA soldiers including ‘Leather Boot’ a.k.a. Idrissa Kamara, ‘Adams,’ Colonel Ibrahim Bioh Sesay, ‘Coachy Borno’ and Colonel Momoh Dorty to a meeting at Five-Five Spot.2902 Both witness TF1-334 and witness George Johnson a.k.a. ‘Junior Lion’ attended this meeting. The Accused Brima ordered the commanders to regroup with their soldiers at Tombodu in preparation for the withdrawal to join SAJ Musa in Koinadugu.2903 Upon arrival at Tombodu, the commanders reported to the Accused Brima.2904 He ordered them to withdraw their troops to Mansofĳinia in Koinadugu District and this occurred.2905 1673. The crimes detailed in the factual fĳindings were committed prior to the Accused Brima’s assumption of command. The ICTY Appeals Chamber in Hadžihasanović held that 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 his or her assumption of command.2906

4. Kailahun District 1674. The Trial Chamber found in relation to Kailahun District that an unknown number of civilians were unlawfully killed by RUF forces in or around February 1998, as charged under Count 5,2907 and that RUF troops or troops not established beyond a reasonable doubt to be members of the AFRC abducted civilians and used them as forced labour in the period following 14 February 1998.2908 (a) Responsibility of the Accused Brima under Article 6(1) of the Statute (i) Submissions 1675. In its Final Brief, the Prosecution makes no submissions with regard to the individual criminal responsibility of the Accused Brima pursuant to Article 6(1) of the Statute. The Prosecution only alleges that “[f]or all crimes committed in

2901 TF1-334, Transcript 20 May 2005, pp. 56–57. 2902 TF1-334, Transcript 19 May 2005, p. 10. 2903 TF1-334, Transcript 19 May 2005, pp. 14–15; TF1-334, Transcript 20 May 2005, pp. 28, 38–40. 2904 TF1-334, Transcript 20 May 2005, pp. 61, 65–66, 71–72. 2905 TF1-334, Transcript 20 May 2005, pp. 56, 72–73. 2906 Hadžihasanović Appeal Decision on Command Responsibility, paras. 45–46, but see Partial Dissenting Opinion of Judge Shahabuddeen, para. 43; Separate and Partially Dissenting Opinion of Judge David Hunt - Command Responsibility Appeal, para. 8; Orić Trial Judgement, para. 335. 2907 Factual Findings, para. 864, supra. 2908 Factual Findings, para. 1374, supra. judgments 1629

Kailahun District during the Indictment period, the three Accused are individually criminally responsible under the theory of joint criminal enterprise, in that the crimes were in the contemplation of the common enterprise or were a reasonably foreseeable consequence of its implementation.”2909 1676. The Brima Defence submits that throughout the Indictment period Kailahun District was under the control of the RUF.2910 In addition, it argues that the Accused was detained by the RUF in Kailahun District during the relevant period and was not in a position of superior command over the perpetrators of the alleged crimes in Kailahun.2911 1677. The Trial Chamber found that the Prosecution proved beyond reasonable doubt that AFRC/RUF troops unlawfully killed a number of civilians in Kailahun District between February and June 1998, as charged under Count 5.2912 The issue for determination here is whether the Accused Brima bears individual criminal responsibility for those crimes pursuant to Article 6(1) of the Statute. (ii) Findings 1678. The Prosecution has not adduced any evidence that the Accused Brima committed, ordered, planned, instigated, or otherwise aided and abetted any of the crimes that occurred in Kailahun District. The Trial Chamber fĳinds that the Prosecution has not proved any of these modes of individual criminal responsibility against the Accused Brima for the crimes committed in the Kailahun District.

(b) Responsibility of the Accused Brima under Article 6(3) of the Statute (i) Submissions 1679. Neither the Prosecution nor the Brima Defence in their Final Briefs make submissions on the superior responsibility of the Accused Brima specifĳically in relation to Kailahun District. 1680. The Trial Chamber notes that Accused Brima submits as part of his alibi defence that he was under RUF arrest in Kailahun District throughout the relevant Indictment period and that as a detainee himself, he was not in a position of superior command over the perpetrators of the alleged crimes in Kailahun.2913 (ii) Findings 1681. The Trial Chamber recalls its fĳindings that the only proven perpetrators of crimes committed in Kailahun District during this period were members of the

2909 Prosecution Final Brief, para. 1409. 2910 Brima Final Brief, para. 227. 2911 Brima Final Brief, paras. 227–229. 2912 Factual Findings, Unlawful Killings, para. 864, supra. 2913 Brima Final Brief, paras. 209–210. 1630 part iv

RUF and its fĳinding that the AFRC faction and the RUF were not working together in Kailahun during this period.2914 1682. The Trial Chamber also recalls its fĳinding that the Accused Brima was detained by the RUF in Kailahun District from February to late April/early May 1998, a much shorter period than he claimed to be under detention.2915 During this period he was detained by the RUF and did not exercise any control over any troops in the District. 1683. The Trial Chamber further found that after his release from detention in Kailahun in early May 1998, the Accused Brima travelled to Kono District and then travelled to Koinadugu and Bombali Districts in June and July 1998.2916 1684. While the presence of a commander in the location in which crimes were committed is not necessary to prove efffective control, the Trial Chamber fĳinds that the Prosecution has not proved beyond reasonable doubt that the Accused Brima was able to exercise efffective control over the RUF in Kailahun District after February 1998. 1685. In the absence of this fĳirst element of superior responsibility, the Trial Chamber does not consider it necessary to consider whether there is any evidence that the Accused Brima had actual or imputed knowledge of the crimes committed and that he failed to prevent or punish the perpetrators. The Trial Chamber fĳinds that the Prosecution has not proved this mode of individual criminal responsibility against the Accused Brima, for the crimes committed in Kailahun District.

5. Koinadugu District 1686. Trial Chamber found that AFRC/RUF forces unlawfully killed or inflicted sexual or physical violence on an unknown number of civilians in Koinadugu District in the period February through September 1998, as charged under Counts 4 through 5, 6 through 9 and 10 respectively.2917 In addition, the Trial Chamber found that AFRC/RUF forces abducted an unknown number of civilians and used them as forced labour in that District, as charged under Count 13.2918 In addition, the Trial Chamber found that AFRC/RUF forces illegally recruited children under the age of 15 years and used them for military purposes in that District, as charged under Count 12.2919 Finally, the Trial Chamber found that

2914 Context of Alleged Crimes, para. 187, supra. 2915 Role of the Accused, paras. 339–341, supra. 2916 Role of Accused, para. 342, supra. 2917 Factual Findings, supra, paras. 879 (Unlawful Killings), 1026 (Rape), 1133 (Outrages on Personal Dignity), 1218 (Physical Violence). 2918 Factual Findings, para. 1333, supra. 2919 Factual Findings, Child Soldiers, para. 1277. judgments 1631

AFRC/RUF forces also engaged in widespread looting of civilian homes, as charged in Count 14.2920 (a) Responsibility of the Accused Brima under Article 6(1) of the Statute (i) Submissions 1687. In its Final Brief the Prosecution submits that the three Accused are liable for planning and instigating or otherwise aiding and abetting the crimes committed in Koinadugu District.2921 It argues that the crimes committed in Koinadugu followed a consistent pattern. This pattern involved repeated attacks by AFRC/ RUF forces against civilians for either supporting ECOMOG or failing to support the AFRC/RUF.2922 1688. The Prosecution emphasises in particular the evidence regarding the attack on Yifĳin.2923 On this submission, the Trial Chamber notes that the Prosecution did not plead the location of Yifĳin under Counts 3 through 6, 8 through 11 or 14 of the Indictment, and thus no fĳindings have been made on evidence adduced in this regard. The Trial Chamber notes further that the Prosecution did not adduce any with respect to Yifĳin under Counts 7, 12 or 13. 1689. The Brima Defence submits that the overall commander of the AFRC troops in Koinadugu District was SAJ Musa.2924 It adds that no evidence was adduced that any of the operations in Koinadugu District were associated with the faction which the Prosecution alleges was led by the Accused Brima.2925 Finally, the Brima Defence argues that its own witnesses from Koinadugu District, who were credible and reliable, had never heard the name of the Accused mentioned in connection with the crimes committed in that District.2926 (ii) Findings a. Committing 1690. The Prosecution has not adduced any evidence that the Accused Brima personally committed any of the crimes found to have been perpetrated in Koinadugu District. The Trial Chamber fĳinds that the Prosecution has not proved this mode of individual criminal responsibility against the Accused Brima, for the crimes committed in Koinadugu District.

2920 Factual Findings, Pillage, para. 1409. 2921 Prosecution Final Brief, para. 1412. 2922 Prosecution Final Brief, para. 1412. 2923 Prosecution Final Brief, para. 1412. 2924 Brima Final Brief, para. 233. 2925 Brima Final Brief, paras. 234–235, 238. 2926 Brima Final Brief, paras. 236–237. 1632 part iv

b. Ordering/Instigating i. Order at Mansofĳinia to terrorise the civilian population 1691. Witness TF1-334 testifĳied that at Mansofĳinia, Brima gave a strict warning to the civilians that as they headed into Bombali District, any civilian who tried to run away was a betrayer and would be shot on sight. He warned the troops in his own words “minus you, plus you […].” The witness further testifĳied that Brima ordered the troops as they moved northwards to capture strong civilians to add to the strength of the troops.2927 1692. This evidence was not challenged in cross-examination. The Trial Chamber recalls that although Prosecution witness George Johnson does not mention this instruction in his evidence, he corroborates other details about the relevant muster parade.2928 1693. Prosecution witness TF1-033 also gave evidence of an order in similar terms; however he stated that this occurred at Yarya.2929 The Trial Chamber has found that the witness was mistaken in his recollection of the location and was in fact referring to the same speech described by witness TF1-334. Witness TF1-033 stated that he heard Alex Tamba Brima claim that civilians had been involved in attacking the AFRC, AFRC families and AFRC sympathisers when the AFRC was ousted from Freetown and that therefore, the AFRC should now do the same to the civilians. Brima declared “Operation Spare No Soul” and instructed his troops to kill, maim or amputate any civilian with whom they came into contact. Towns and villages were to be burned and women and girls were “free to satisfy [the soldiers’] sexual desires.”2930 1694. The Defence disputed this evidence as unreliable on the grounds that Defence witnesses as well as other Prosecution witnesses put Brima elsewhere during the month of March 1998. Prosecution witness TF1-033 recalls ‘Gullit’ stating, “You all know what befell on us when the ECOMOG forces removed us from power in Freetown. Our colleagues, soldiers, sympathisers, relatives, were killed by civilians as well as ECOMOG soldiers. So for that reason, we are going back to Freetown. We are going back to Freetown and we should all return that fell on us […] So we are not going to spare any civilian, only those we desire to be with us. […] Young girls and women are free to satisfy your sexual desire. This is Operation Spare No Soul.”2931 On cross-examination the witness stated that these

2927 TF1-334, Transcript 23 May 2005, pp. 15–17. 2928 George Johnson, Transcript 15 September 2005, pp. 47–48 2929 TF1-033, Transcript 11 July 2005, pp. 13–15. The witness refers to the location as ‘Yaya,’ but the Trial Chamber is satisfĳied that this is the same place as ‘Yarya’ given that the witness also describes it as Brima’s home town. 2930 TF1-033, Transcript 11 July 2005, pp. 12–14. 2931 TF1-033, Transcript 11 July 2005, pp. 12–15; Transcript 12 July 2005 pp. 7, 34–35. judgments 1633 were ‘Gullit’s exact words.2932 The witness stated that as a result, “the journey of atrocities destined for Freetown started that evening.”2933 1695. The Trial Chamber fĳinds that the above orders, insofar as they were targeted at civilians, were intended to spread fear among the civilian population. The Prosecution has proved beyond reasonable doubt that Accused Brima, while at Mansofĳinia, did order the AFRC forces subordinate to him to commit acts of terror against the civilian population. However, the Trial Chamber has found that the crimes arising out of this particular order were not committed in Koinadugu District, but in Bombali District. Therefore the Trial Chamber fĳinds that the Prosecution has not proved these modes of individual criminal responsibility against the Accused Brima in relation to the crimes committed in Koinadugu District. c. Planning and otherwise aiding and abetting 1696. No evidence was adduced that the Accused Brima planned the commission of crimes or gave practical assistance, encouragement or moral support which had a substantial efffect on the commission of crimes in Koinadugu District. The Trial Chamber fĳinds that the Prosecution has not proved this mode of individual criminal responsibility against the Accused Brima, for the crimes committed in Koinadugu District. (b) Responsibility of the Accused Brima Under Article 6(3) of the Statute (i) Submissions 1697. The Prosecution in its Final Brief submits that each of the three Accused bears superior responsibility for crimes committed in the attack on Yifĳin.2934 As stated above, the Trial Chamber notes the Prosecution did not include the location of Yifĳin in the particulars under Counts 3 through 6, 8 through 11 or 14, and thus no fĳindings have been made on evidence adduced in this regard. The Trial Chamber notes further that no evidence with respect to Yifĳin has been adduced under Counts 9, 12 or 13. 1698. The Brima Defence makes no submissions specifĳic to Koinadugu District in relation to the superior responsibility of the Accused Brima. (ii) Findings 1699. The Trial Chamber fĳinds that the crimes committed in Koinadugu District were perpetrated by AFRC/RUF forces associated with groups led by SAJ Musa and ‘Superman.’ While there is evidence that the Accused Brima was in sporadic contact with SAJ Musa between May and July 1998, the Prosecution has

2932 TF1-033, Transcript 12 July 2005, pp. 34–35. 2933 TF1-033, Transcript 11 July 2005, p. 15. 2934 Prosecution Final Brief, paras. 1415–1416. 1634 part iv not submitted, nor is there evidence to the efffect that, the Accused Brima exercised efffective control over the troops of SAJ Musa or Superman. In the absence of proof of the existence of a superior-subordinate relationship between the Accused Brima and the perpetrators of the crimes in Koinadugu District, it is unnecessary to consider whether there is any evidence that the Accused Brima had actual or imputed knowledge of the crimes committed and failed to prevent or punish the perpetrators. The Trial Chamber fĳinds that the Prosecution has not proved this mode of individual criminal responsibility against the Accused Brima, for the crimes committed in Koinadugu District.

6. Bombali District 1700. The Trial Chamber found that AFRC troops in Bombali District engaged in unlawful killings of civilians2935 and inflicted sexual violence on civilians,2936 as charged in the Indictment. AFRC troops also abducted civilians and used them as forced labour and illegally recruited and used children for military purposes.2937 Finally, the Trial Chamber found that AFRC troops terrorised and committed crimes of collective punishments against the civilian population.2938 (a) Responsibility of the Accused Brima Under Article 6(1) of the Statute (i) Submissions 1701. The Prosecution conceded that with regards to the Accused Brima, it did not adduce evidence of sexual violence in respect of Mandaha.2939 In its Final Brief, the Prosecution submits that the Accused Brima committed, planned, ordered, instigated and otherwise aided and abetted attacks on Karina, Bornoya, Mateboi and Mandaha and the crimes associated with those locations outlined in the Indictment.2940 More specifĳically, it argues that the Accused Brima ordered the attack on Karina in order to demonstrate the power of his forces. Attacks on the surrounding villages were carefully designed and organised by the Accused who intended the commission of all the crimes pleaded in the Indictment. In addition, the Prosecution submits that the Accused prompted others to participate in the unlawful acts.2941 The Prosecution further submitted that “[…] the three Accused themselves gave orders for, and actively encouraged, killings physical and sexual violence and the burning of villages amounting to a campaign of

2935 Factual Findings, Unlawful Killings, para. 897, supra. 2936 Factual Findings, Sexual Violence, paras. 1041, 1145, supra. 2937 Factual Findings, Child Soldiers, paras. 1227–1228, supra. 2938 Factual Findings, Acts of Terror and Collective Punishment, paras. 1605–1606, supra. 2939 Prosecution Response to Defence Motions for Judgement of Acquittal Pursuant to Rule 98, 23 January 2006, para. 146. 2940 Prosecution Final Brief, para. 1497, 1503–1508. 2941 Prosecution Final Brief, paras. 1503–1505. judgments 1635 terrorism” in Bombali District.2942 The Prosecution further submitted that the First Accused ordered ‘Operation Clear the Area’ meaning that all villages surrounding Rosos were to be burnt down and looted, and that these orders were in fact carried out.2943 1702. The Brima Defence argues that the Prosecution witnesses who testifĳied regarding crimes committed in Bombali District provided contradictory and self- serving accounts of the events.2944 The Brima Defence refers to the testimony of its own witnesses that they did not hear the Accused’s name mentioned in connection with the events that took place in Bombali.2945 The Brima Defence therefore submits that Defence witnesses have established reasonable doubt regarding the responsibility of the Accused Brima for instigating or aiding and abetting the crimes committed in Bombali District.2946 (ii) Findings a. Committing i. Murder and Extermination at Karina 1703. The Trial Chamber considered the evidence presented by the Prosecution witness TF1-334 on the killing of 12 civilians at a mosque in Karina and found that on 8 May 1998, the Accused Brima participated in a mass killing of 12 civilians at a mosque in Karina. The fĳinding was based on the testimony of eye witness TF1-334 who was with the Accused Brima during the attack on the mosque at Karina. Witness TF1-334 stated that he moved with the Accused Brima to the town of Karina where they found a mosque. While the witness was standing with soldiers at the mosque, Brima questioned the Imam for praying for the people and accused him of being a relative of ‘Pa Kabbah’s family.’ When the Imam responded, Brima shot dead the Imam, six men and fĳive women, in front of the witness.2947 1704. Witness George Johnson also testifĳied that he met and saw “plenty of dead bodies with gun shot wounds” inside and outside the mosque at Karina town. Although the witness did not see what had happened to the dead bodies, he stated that they were attacked by Alhaji Kamanda a.k.a. “Gun Boot”2948 without giving further information on the means with which he committed the attack. The evidence of Defence witness DBK-094, a relative to the Imam of the mosque, is corroborated by that of DBK-089. Both witnesses claim that during the attack on the

2942 Prosecution Final Brief, para. 1516. 2943 Prosecution Final Brief, para. 633. 2944 Brima Final Brief, paras. 241–242. 2945 Brima Final Brief, paras. 243–245. 2946 Brima Final Brief, paras. 245–246. 2947 TF1-334, Transcript 23 May 2005, pp. 68–69. 2948 George Johnson, Transcript 15 September 2005, pp. 56–57. 1636 part iv mosque in Karina, the Imam’s brother was the one actually leading the prayers and that the Imam himself had left the town three days before the attack and could therefore not have been killed during this attack. 1705. The Trial Chamber notes that there are inconsistencies in the evidence of the identity of the person who led the prayers that day, with Prosecution witnesses stating that it was “the Imam” and the defence witnesses stating that the Imam is still alive. The Chamber is of the view that the exact identity of the individual who led the prayers that day is not paramount but rather the fact that the leader of the prayers was indeed killed. This fact is not in dispute. In that regard, the Trial Chamber fĳinds the evidence of eye witness TF1-334 who was present at the mosque and actually saw the Accused Brima shooting civilians including the leader of the prayers at the mosque in Karina is credible and reliable. The fact that several civilians died as a result of the shooting is corroborated by TF1-167. In the Trial Chamber’s view, the Prosecution evidence is not challenged by the evidence of DBK-094 and DBK-089 who only testifĳied about the absence of the Imam during the attack on the mosque. They do not dispute the fact that mass killings of civilians including the person who led the prayers that day, took place at the mosque. However, before the Trial Chamber relies on the Prosecution evidence to determine whether the Accused Brima is individually criminally responsible for the Karina killings, it must take the following factors into account. 1706. The Indictment does not plead the material facts of this specifĳic incident with regard to the Accused Brima.2949 The Prosecution failed to include these particulars in the Indictment and rendered the Indictment defective. 1707. From the outset of its case, the Prosecution was aware of material facts regarding the Karina attack including the means with which the Accused Brima committed this attack on Karina and details of the killings at the mosque in Karina. The Prosecution Supplemental Pre-Trial Brief generally provides information that the Accused Brima ordered that AFRC/RUF should make its mark on Karina and that no one should be spared. It also alleges that the Accused Brima participated in the shooting on the attack on Karina.2950 However, it does not specify the details of the attack on the mosque; that is the means and purpose of the attack or a description of the victims. In addition, the OTP Opening Statement does not specify the Accused Brima participation in the killing of civilians at a mosque in Karina. Instead, the Prosecution indicated that when the people of Karina village were assembled at the mosque at 5:00 o’clock for morning prayers, AFRC/RUF forces led by the three Accused descended on them with guns,

2949 See test applied by the Trial Chamber in Alleged Defects in Form of Indictment, para. 55, supra. 2950 Prosecution Supplemental Pre-Trial Brief, p. 24. judgments 1637 machetes and axes. They lined them up and one after the other hacked them to death.2951 1708. The Trial Chamber notes that the Prosecution disclosure materials of a Witness Statement of TF1-334 dated 6 November 2003, does not mention the shooting of the Imam by the Accused Brima. However, it specifĳically states that Witness TF1-334 saw ‘Gullit’ going to a mosque in Karina and questioned the people as morning prayers were going on. Thereafter, the witness saw ‘Gullit’ remove his pistol and shoot the civilians dead.2952 Therefore, the Trial Chamber fĳinds that the above constitutes sufffĳicient notice of the material particulars relating to Brima’s participation in the Karina killings and that the defect in the Indictment with regard to this crime was cured by clear, timely and consistent notice to the Defence. 1709. In light of the foregoing considerations and the Trial Chamber’s fĳinding that the Accused Brima participated in a mass killing of at least 12 civilians at a mosque in Karina, the Trial Chamber fĳinds that the Prosecution has established beyond reasonable doubt the Accused’s responsibility by committing on a large scale the massacre of civilians at a mosque in Karina. The Trial Chamber is further satisfĳied that the Accused Brima was aware that his participation in the killings on such a massive scale amounted to the crime of extermination. b. Ordering i. Order to terrorise and kill the civilian population at Karina 1710. Around June 1998, at Kamagbengbe and in the presence of Kamara and Kanu, the Accused Brima gave orders to the AFRC troops to attack Karina. Brima referred to Karina as a strategic location because it was the home town of President Ahmed Tejan Kabbah. The witness stated that Brima ordered the troops to burn down Karina, capture strong male civilians, and amputate civilians. Brima concluded that he wanted the attack on Karina to shock “the whole country” and the international community. The Trial Chamber has found that there were no ECOMOG or Kamajor troops in Karina at the time and that all the victims were civilians.2953 Witness TF1-157 testifĳied that after the attack on Karina, he heard rebels say that the town had been attacked because it was the home town of President Kabbah.2954 Witness TF1-033 testifĳied that he heard ‘Gullit’ order that civilian women should be stripped naked and raped during the attack on Karina, and

2951 Prosecution Opening Statement, Transcript 7 March 2005, p. 39. 2952 Statement of Witness TF1-334, 6 November 2003, CMS p. 6557 [confĳidential]. 2953 TF1-334, Transcript 23 May 2005, pp. 56–60, 61, 64–65; George Johnson, Transcript 15 September 2005, pp. 53–54. 2954 TF1-157, Transcript 25 September 2005, pp. 29–30, 58–60; Transcript 26 September 2005, pp. 9, 23–24, 30. 1638 part iv the neighbouring town of Bornoya.2995 The Trial Chamber found this evidence detailed, consistent and credible. 1711. The Trial Chamber is therefore satisfĳied that the Accused Brima ordered his subordinates to perpetrate crimes against the civilian population in Karina and its environs with the specifĳic intent of instilling terror in the civilian population. ii. Order to terrorise the civilian population around Rosos 1712. Witness TF1-334 testifĳied that during the rainy season in 1998, the AFRC/ Junta forces established a base at Rosos and remained there for approximately three months. While at Rosos, the witness heard Brima order the troops to occupy the surrounding villages and ensure that no civilians remained within 15 miles of the village.2956 Brima ordered that any civilians be executed rather than brought back to the camp, and added that he would take disciplinary action against any soldier who brought a civilian to the camp. Brima named this action “Operation Clear the Area.” Witness TF1-334 testifĳied that villages surrounding Rosos were burnt down and looted following this order.2957 Witness TF1-033 corroborated the evidence of Witness TF1-334 testifying that he heard Brima order his soldiers to kill any civilians in the area of Rosos.2958 Witness TF1-267 also testifĳied that rebels told her that civilians who did not leave a village near Rosos would be killed.2959 1713. The Indictment does not charge unlawful killings at Rosos and therefore will not make any fĳindings on the killings perpetrated following Brima’s order. However, the evidence shows that the Accused Brima, in issuing such orders to his subordinates specifĳically intended to terrorise the civilian population in the areas surrounding Rosos. The Trial Chamber concludes that Brima’s generalised instruction created a climate of criminality which endured in the months following the order. iii. Order for killings at Mateboi and Gbendembu 1714. Witness TF1-334 testifĳied that after the Accused Brima banned civilians from the area surrounding ‘Camp Rosos,’2960 an AFRC commander executed six civilians, four men and two women, with an AK-47 rifle in a village near Mateboi.2961 1715. Witness TF1-033 testifĳied that in or around August 1998 at ‘Colonel Eddie Town,’ the Accused Brima ordered two AFRC commanders named Salifu Mansaray and ‘Arthur’ to attack Gbendembu because ECOMOG and “loyal” Sierra Leonean

2995 TF1-033, Transcript 11 July 2005, pp. 18–20. 2956 TF1-334, Transcript 23 May 2005, p. 104; Transcript 24 May 2005, pp. 2–5. 2957 TF1-334, Transcript 23 May 2005, pp. 100–106. 2958 TF1-033, Transcript 11 July 2005, pp. 24–25. 2959 TF1-267, Transcript 27 July 2005, pp. 8–9, 10–11, 17, 23–26, 29–30. 2960 TF1-334, Transcript 23 May 2005, p. 105. 2961 TF1-334, Transcript 24 May 2005, pp. 2–5; exhibit P-16 (under seal). judgments 1639

Army troops were present there.2962 When the Operations Commander returned from the operation he reported to Brima that the troops had captured arms and ammunition and that 25 civilians had been killed. Brima commended his men for “a job well done.”2963 1716. The Trial Chamber fĳinds that as overall commander in Bombali District the Accused Brima had sufffĳicient authority over his troops to order the commission of the crimes in the expectation that his orders would be implemented. The Trial Chamber is therefore satisfĳied that the Accused Brima was aware of the substantial likelihood that crimes would be committed in the execution of the order given at ‘Colonel Eddie Town.’ The Trial Chamber therefore fĳinds that the Accused Brima ordered the murder of civilians in the villages of Mateboi and Gbendembu. iv. Order at Rosos to recruitment children for military purposes 1717. Witness TF1-334 testifĳied that during a three week training program at Rosos2964 77 civilian abductees, including children under the age of 15 years, underwent military training. He was able to provide this estimate because he conducted head counts during muster parades.2965 Witness George Johnson also confĳirmed this training at Rosos but estimated that 520 civilians were trained at Rosos. The Trial Chamber observes that Witness TF1-334 referred to the number of civilians trained during one three week period, while George Johnson refers to the number of civilians trained overall at Rosos. Therefore the Trial Chamber does not consider the discrepancy in numbers to be signifĳicant. Witness TF1-334 testifĳied that following the completion of the training period, the trainees were addressed by both the Accused Kanu and the Accused Brima. Brima then ordered that the male children be distributed to the various company commanders, while the girls and women were to be turned over to “their husbands” meaning the soldiers and commanders.2966 1718. Witness TF1-158, a former child soldier, testifĳied that he was abducted by the AFRC forces and spent one week at Rosos. Upon arrival in Rosos, a commander named ‘Stafff Alhaji’ gave the civilians guns and ordered them to search the town for food.2967 ‘Stafff Alhaji’ told witness TF1-158 and the other civilians that this order came from the Accused Brima.2968 During the week at Rosos, the witness was given military training together with approximately 300 other civilians.2969

2962 TF1-033, Transcript 11 July 2005, pp. 32–33; TF1-334, Transcript 23 May 2005, pp. 81, 84. 2963 TF1-033, Transcript 11 July 2005, p. 34. 2964 TF1-334, Transcript 24 May 2005, p. 28. 2965 TF1-334, Transcript 24 May 2005, p. 23; TF1-334, Transcript 23 May 2005, pp. 74–75. 2966 TF1-334, Transcript 24 May 2005, pp. 29–31. 2967 TF1-158, Transcript 26 July 2005, pp. 38–39. 2968 TF1-158, Transcript 26 July 2005, p. 38. 2969 TF1-158, Transcript 26 July 2005, pp. 39–40. 1640 part iv

1719. The Trial Chamber has found these witnesses to be credible and is therefore satisfĳied that the Accused Brima ordered the abduction of children under the age of 15 years for military purposes. c. Planning, Instigating and otherwise aiding and abetting 1720. The Prosecution has not adduced any evidence that the Accused Brima planned, instigated or otherwise aided and abetted any of the crimes committed under Counts 1–6, 10 and 14 in Bombali District. The Trial Chamber fĳinds that the Prosecution has not proved any of these modes of criminal responsibility against the Accused Brima for the crimes committed under Counts 1–6, 10 and 14 in Bombali District. In view of the continuing nature of the crimes charged under Counts 9, 12 and 13 and the fact that they span across several Districts, the Trial Chamber will discuss the Accused Brima’s responsibility for these crimes below.2970 (b) Responsibility of the Accused Brima under Article 6(3) of the Statute (i) Submissions 1721. The Prosecution in its Final Brief submits that the Accused Brima, as a superior over the subordinate perpetrators, bears individual criminal responsibility for all crimes committed in Bombali District from 1 May 1998 until 30 November 1998.2971 1722. The Brima Defence in its Final Brief submitted that the Accused Brima was under arrest at Colonel Eddie Town and therefore not in a position to command the alleged perpetrators of the crimes.2972 The crimes in Bombali District were committed by AFRC troops prior to their arrival in ‘Colonel Eddie Town’ in September 1998. (ii) Findings a. Existence of a superior-subordinate relationship 1723. The Trial Chamber has found that the Accused Brima was the overall commander of the AFRC forces that committed the crimes in Bombali District2973 It has been established that the AFRC in this period had a functioning chain of command, planning and orders process, and disciplinary system.2974 Structures were therefore in place to facilitate the efffective control by the Accused Brima of his subordinates. The Trial Chamber will now examine the evidence pertaining to the troops’ activities in this period to determine whether the command structure functioned and the Accused Brima was able to actually exercise efffective control over the AFRC troops on a day-to-day basis.

2970 Responsibility of the Accused, Brima, paras. 1820–1838, infra. 2971 Prosecution Final Brief, para. 1513. 2972 Brima Final Brief, para. 105. 2973 Role of the Accused, Brima, para. 378, supra. 2974 Military Structure of the AFRC Fighting Force, para. 600, supra. judgments 1641

1724. There is ample unchallenged evidence that the Accused Brima’s orders were obeyed.2975 For example, upon arrival at Rosos, the Accused Brima gave orders distributing the companies out to various surrounding villages.2976 The Accused Brima ordered an advance troop to depart from Rosos to fĳind a suitable new location for the camp.2977 Upon this location being found at ‘Colonel Eddie Town,’ Brima ordered the entire brigade to move there.2978 In addition the Trial Chamber refers to its previous fĳindings that the Accused Brima gave a number of orders to commit crimes which were obeyed by AFRC troops.2979 1725. The Trial Chamber is satisfĳied that the Accused Brima’s exercise of efffective control was not sporadic, but constant. His orders remained efffective and applicable to incidents that occurred some time after their issuance. For example, at Kamagbengbe, prior to arrival at Rosos, a number of civilian abductees attempted to escape from the troops. They were recaptured and brought before the Accused Brima. He ordered one of the company commanders, Lieutenant Tito, to immediately execute them, on the basis of his prior order at Mansofĳinia that persons attempting to escape would be shot. Lieutenant Tito shot the civilians.2980 1726. Similarly, at Rosos, the Accused Brima warned the troops that disciplinary action would be taken against soldiers that brought captured civilians to camp.2981 There is evidence of the subsequent implementation of this order by his subordinates in his absence. Witness TF1-334 testifĳied that on one occasion, he and a number of other troops captured six civilians in a village and brought them to their commander, whose identity was revealed in closed session. The commander ordered their execution on the basis that this was what the Accused Brima had ordered.2982 1727. The Trial Chamber has observed that the Accused Brima habitually addressed the troops publicly, often using this as a forum to issue orders. One example of this is the speech made by the Accused Brima at Kamagbengbe, in the course of which he ordered the attack on Karina.2983 Witness TF1-334 described a particular fĳield at Rosos as ‘the fĳield where Gullit normally addressed the troops.’2984

2975 George Johnson, Transcript 15 September 2005, pp. 60, 61; TF1-334, Transcript 23 May 2005, pp. 42, 52–53, 74, 79, 81–87, 104–106; TF1-033, Transcript 11 July 2005, pp. 32–33. 2976 TF1-334, Transcript 23 May 2005, p. 106; see also George Johnson, Transcript 15 September 2005, p. 60. 2977 TF1-334, Transcript 24 May 2005, pp. 72–73. 2978 TF1-334, Transcript 24 May 2005, pp. 73–74. 2979 Responsibility of the Accused, Brima, paras. 1709–1718, supra. 2980 TF1-334, Transcript 23 May 2005, pp. 55–56. 2981 TF1-334, Transcript 23 May 2005, pp. 104–106. 2982 TF1-334, Transcript 24 May 2005, pp. 2–4. 2983 TF1-334, Transcript 23 May 2005, p. 56; TF1-033, Transcript 11 July 2005, pp. 18–19. 2984 TF1-334, Transcript 24 May 2005, pp. 9–10. 1642 part iv

Witness TF1-334 also testifĳied that at the completion of the military training program for civilian abductees at Rosos, the trainees were addressed by ‘Gullit’ and ‘Five-Five.’2985 Thus, the Accused Brima clearly had a high public profĳile among the troops and was able to assemble and address them. 1728. On the basis of the foregoing evidence, the Trial Chamber is satisfĳied beyond reasonable doubt that the Accused Brima was able to efffectively control the AFRC troops under his command. The Trial Chamber accordingly fĳinds that a superior-subordinate relationship existed between the Accused Brima and the perpetrators of crimes committed in Bombali District. b. Actual or Imputed Knowledge 1729. The Prosecution submits that ‘based on the fact that in most cases the orders to commit crimes were given to the subordinates directly by the Accused or at least in their presence, the Accused either knew or at the very least had reason to know that the subordinates were about to commit the offfences or had done so, especially since on many occasions the Accused were personally present […] while the crimes were being carried out.’2986 1730. The Trial Chamber is satisfĳied that in many cases actual knowledge of the crimes committed by the Accused Brima’s subordinates without his direct participation can be inferred from circumstantial evidence for three reasons. 1731. Firstly, the occurrence of the crimes was widespread and involved a typical modus operandi of attacks against civilians.2987 The frequency and pattern of crimes, coupled with the evidence that the Accused Brima ordered attacks on civilians on several occasions,2988 indicates that he had actual knowledge that crimes were about to occur whenever his troops went on operations. 1732. Secondly, actual knowledge can be inferred from the evidence that the troops systematically reported to their commanders, and often to the Accused Brima himself, at the conclusion of operations.2989 1733. Thirdly, the Accused Brima was at all times physically proximate to the locations in which crimes were committed. The Trial Chamber observes that the context in which the Accused Brima exercised efffective control was diffferent to that of overall commanders in traditional military armies, who are often removed from the front line of the conflict and may receive reports of incidents that have passed through several commanders up a vertical chain of command. Instead, the

2985 TF1-334, Transcript 24 May 2005, pp. 9–10. 2986 Prosecution Final Brief, para. 1515. 2987 See General Requirements of Articles 2, 3 and 4 of the Statute, paras. 233–235, supra. 2988 TF1-334, Transcript 23 May 2005, pp. 57–65; George Johnson, Transcript 15 September 2005, pp. 53–54, 58; TF1-033, Transcript 11 July 2005, pp. 18–19; DBK-094, Transcript 11 July 2006, pp. 26, 27. 2989 TF1-334, Transcript 23 May 2005, p. 96, 98–99, 101. judgments 1643

AFRC troops in Bombali District moved together to Rosos and upon arrival were all located in Rosos itself or satellite camps nearby. The Accused Brima was thus consistently on the ground with the troops, even if he did not accompany them on every operation. 1734. The Trial Chamber is also satisfĳied that the Accused Brima had reason to know of the crimes committed in Bombali District. The standard for proof of imputed knowledge is strict. Nonetheless, the Trial Chamber fĳinds that there can be no reasonable doubt that the Accused Brima was in possession of information that put him on notice of the likelihood of illegal acts being committed by his subordinates. He directly participated in the commission of a number of crimes.2990 He witnessed the commission of crimes by his subordinates.2991 He received reports of the commission of crimes.2992 1735. The Trial Chamber accordingly fĳinds that the Accused Brima knew, or had reason to know, of the crimes committed by his subordinates in Bombali District in which he did not directly participate. c. Failure to Prevent or Punish 1736. In its Final Trial Brief the Prosecution submits that as one of “the key commanders in the fĳield,” the Accused Brima had “necessary and reasonable measures” at his disposal to prevent or punish his subordinates but that he did not do so.2993 1737. The Brima Defence does not make any submissions on whether the Accused Brima attempted to prevent the commission of crimes or punish offfending subordinates. Rather, the Brima Defence submits that this third limb of superior responsibility is only applicable where the fĳirst two limbs have been established. The Brima Defence argues that the Prosecution has failed to prove these fĳirst two elements and the case against the Accused Brima under Article 6(3) of the Statute must therefore be dismissed.2994 1738. Before turning to the available evidence, the Trial Chamber wishes to emphasise that any analysis of the type of preventative or punitive measures required on the part of the Accused Brima must recognise that the AFRC was not a traditional military organisation. It is not useful to inquire whether the Accused Brima adopted measures commonly cited in the jurisprudence, such as reporting the perpetrators to competent authorities or commencing formal investigations.2995 Nonetheless, the fundamental question remains whether there were

2990 See Responsibility of the Accused, paras. 1698–1716, supra. 2991 TF1-334, Transcript 23 May 2005, pp. 61, 65. 2992 TF1-334, Transcript 23 May 2005, pp. 96, 98–99, 101. 2993 Prosecution Final Brief, para. 1516. 2994 Brima Final Brief, paras. 109–110. 2995 See Applicable Law, para. 799, supra. 1644 part iv measures of any type reasonably open to the Accused Brima, taking into account the extent of his ability to control his subordinates, which he failed to take. 1739. The Trial Chamber found that the AFRC faction had a functioning disciplinary system in Bombali District.2996 The Trial Chamber accepts that this system was not advanced in the sense of being properly codifĳied and formally sanctioned by competent authorities. Nevertheless, the Trial Chamber fĳinds that that this disciplinary system could have been employed by the Accused Brima. Instead, there is no evidence that the Accused Brima took measures to punish subordinates for the commission of crimes. To the contrary, witnesses testifĳied that on occasion the Accused Brima commended offfending subordinates.2997 The only evidence that soldiers were punished for crimes refers to their punishment for the rape of other soldiers’ wives.2998 The Trial Chamber does not consider this sufffĳicient, as the soldier in such cases was not being punished for committing the crime of rape, but for the fact that his victim ‘belonged’ to another perpetrator. 1740. Insofar as the prevention of offfences is concerned, the Trial Chamber recalls that the nature of the measures that must be taken by commanders depends on the degree of their control over their subordinates as well as the severity and imminence of the crimes.2999 The Trial Chamber notes that it is likely that the Accused Brima had less control over his troops than a commander would have over highly disciplined troops in a regular army. It is possible that some of the Accused Brima’s troops may have committed crimes even if they were not ordered to do so. This is similarly possible in a traditional military organisation. The law does not require proof that the Accused Brima could have prevented the commission of the crimes. The law requires that the Accused Brima took all steps reasonably open to him in an attempt to do so. 1741. The only evidence of the Accused Brima taking any steps to prevent the crimes committed is that he appointed a Provost Marshal who was in charge of ensuring that “jungle justice” was adhered to. “Jungle justice” included a “law” prohibiting rapes during operations3000 and permitted that any fĳighter who raped another fĳighter’s ‘wife’ would be put to death.3001 The Trial Chamber fĳinds that rules regarding which troops were entitled to rape civilians or rules that prohibited rape at specifĳied times do not demonstrate the Accused’s attempt to prevent

2996 Military Structure of AFRC Fighting Force, para. 1739, supra. 2997 TF1-033, Transcript 11 July 2005, pp. 32–35. 2998 Military Structure of AFRC Fighting Force, para. 595, supra for discussion on laws regulating the use of women by troops at Rosos. 2999 Applicable Law, paras. 797–798, supra. 3000 Military Structure of AFRC Fighting Force, para. 594, supra. 3001 TF1-033, Transcript 12 July 2005, p. 9. judgments 1645 or punish these crimes. Rather they are indicative of the tolerance and institutionalised nature of the commission of the crimes within the AFRC forces. 1742. There is also evidence that the Provost Marshal was in charge of ensuring that “government property,” meaning arms, ammunition and medical supplies belonging to the AFRC fĳighting forces, was not stolen.3002 The Trial Chamber is of the opinion that this prohibition does not demonstrate the Accused’s intention to prevent general looting of civilian property by the troops. 1743. The Trial Chamber accordingly fĳinds that the Accused Brima failed to take necessary and reasonable measures to prevent the crimes committed in Bombali District or punish the perpetrators thereof. (iii) Conclusion 1744. On the basis of the foregoing, the Trial Chamber fĳinds that the Prosecution has proved beyond reasonable doubt that the Accused Brima as a superior, bears individual criminal responsibility under Article 6(3) for the crimes committed by his subordinates in Bombali District between 1 May 1998 and 30 November 1998 in which he did not directly participate.

7. Freetown and Western Area 1745. The Trial Chamber found in relation to Freetown and the Western Area that AFRC troops committed unlawful killings of civilians3003 and inflicted sex- ual3004 and physical3005 violence on civilians; that AFRC troops also abducted civilians and used them as forced labour;3006 that AFRC troops illegally recruited and used children under the age of 15 years for military purposes in the attack on Freetown;3007 and that AFRC troops engaged in looting,3008 and committed collective punishments and acts of terror against the civilian population,3009 as charged in the Indictment. (a) Responsibility of the Accused Brima under Article 6(1) of the Statute (i) Submissions 1746. In its Final Trial Brief, the Prosecution asserts that the Accused Brima together with the Accused Kamara and Kanu planned and led the invasion of Freetown, and that the attack on Freetown was designed and organised by Brima.

3002 George Johnson, Transcript 15 September 2005, p. 49. 3003 Factual Findings, Unlawful Killings, paras. 902–949, supra. 3004 Factual Findings, Sexual Violence, paras. 1048–1049, 1056–1057, supra. 3005 Factual Findings, Physical Violence, paras. 1229–1242, supra. 3006 Factual Findings, Enslavement, para. 1389, supra. 3007 Factual Findings, Child Soldiers, para. 1278, supra. 3008 Factual Findings, Pillage, para. 1429, supra. 3009 Factual Findings, Acts of Terror and Collective Punishments, paras. 1609–1611, supra. 1646 part iv

The Prosecution further asks the Trial Chamber to infer that the Accused, based on his position and participation in the commission of crimes in Freetown, intended the commission of the crimes pleaded in the Indictment in Freetown 1999, or was aware of the substantial likelihood that the crimes would occur.3010 Alternatively, it submits that the Accused Brima is liable for aiding and abetting all of the crimes charged through his presence on the ground, his position of authority and his active support for operations.3011 1747. The Prosecution further contends that Freetown was attacked pursuant to the orders of the Accused Brima, and that given his position of authority, it may reasonably be inferred that Brima ordered the commission of all the crimes in Freetown.3012 It adds that the Accused gave specifĳic orders to burn down police stations and all of Calaba Town; issued a general order to execute “collaborators”; and ordered specifĳic unlawful killings, amputations, abductions and looting.3013 1748. In addition, the Prosecution submits, the Accused Brima committed numerous killings, amputations and burnings and that he further committed, instigated or aided and abetting acts of sexual violence.3014 1749. The Brima Defence contends that the evidence adduced by the Prosecution is insufffĳicient to support any theory that the Accused was liable by his acts or omissions for the crimes committed in Freetown and the Western Area in 1999.3015 The Brima Defence argues that Brima never came to Freetown during the January 1999 invasion nor was he part of the attack there, a fact supported by various Defence witnesses.3016 (ii) Findings a. Committing i. Killings of three persons at State House 1750. Prosecution evidence that during the 6 January 1999 invasion of Freetown by the AFRC forces, the Accused Brima personally shot and killed three men whom he believed to be Nigerians at State House went unchallenged.3017 Witness TF1-184, who was an AFRC commander at the time, stated that whilst inside State House, he saw junior soldiers bring four civilians including one woman to State House from the Paramount Hotel. The Accused Kanu took the woman and the

3010 Prosecution Final Brief, para. 1615. 3011 Prosecution Final Brief, para. 1617. 3012 Prosecution Final Brief, para. 1618. 3013 Prosecution Final Brief, paras. 1619–1620. 3014 Prosecution Final Brief, paras. 1621–1623. 3015 Brima Final Brief, para. 250. 3016 Brima Final Brief, paras. 211–213. 3017 TF1-184, Transcript 27 September 2005, pp. 61–62. judgments 1647 three civilians who were accused of being “Nigerians.” The witness then saw the Accused Brima shoot and kill them.3018 The testimony of witness TF1-184 was corroborated by that of witness TF1-334. In support of Brima’s alibi defence, Defence witness DBK-126 stated that she would take food to the Accused Kamara at the State House but that she did not see the Accused Brima while there.3019 1751. The Trial Chamber is of the view that the evidence of witness DBK-126 does not undermine the evidence of Prosecution witnesses TF1-184 and TF1-3343020 who were present at State House and saw the Accused Brima commit crimes there. The Trial Chamber will now determine whether the Indictment particularised these crimes. 1752. The Indictment provided not one material fact regarding the specifĳic incident described above. Instead, it alleged that “AFRC/RUF conducted armed attacks throughout the city of Freetown.” Given this failure to adequately plead critical material facts, the Trial Chamber fĳinds the Indictment defective. The Trial Chamber must therefore determine whether this defect in the Indictment was cured by clear, timely and consistent notice of the material facts to the Brima Defence. 1753. Material facts were not provided in the Prosecution Supplemental Pre- Trial Brief nor its Opening Statement. The only document referring to the incident is a pre-trial statement of Prosecution witness TF1-184 stating that: On the 7 January 1999, a Nigerian Civilian was captured by our soldiers. This man told us that his friends were staying at the Paramount Hotel. After that, the three other Nigerians, two men and one woman, were captured and all of them were brought to State House and presented to Gullit. Gullit said that the men should die. Then he took his pistol and shot one Nigerian in the head, one in the chest and the last one in the side.3021 1754. The Trial Chamber notes that among its disclosure materials the Prosecution included a document entitled “Additional Information provided by Witness TF1-184 on 20 May 2005 and 17 June 2005.” In that document, the witness said that the Accused Brima murdered three civilians at State House on 7 January 1999. This document might have put the Defence on notice of the particulars of the charge against Brima, as it details the manner in which the three men were captured and killed. The Trial Chamber, however, observes that this information was not disclosed to the Defence until at least two months after the opening of

3018 TF1-184, Transcript 27 September 2005, pp. 61–62. 3019 DBK-126, Transcript 25 October 2006, pp. 56, 57. 3020 TF1-334, Transcript 14 June 2005, pp. 22, 27. 3021 Additional Information provided by witness TF1-184 on 20 May 2005 and 17 June 2005, CMS p. 9830 [confĳidential]. 1648 part iv the trial. Thus, the notice provided cannot be described as ‘timely’ nor can it qualify as ‘consistent.’ However, the Brima Defence did not object to the leading of evidence of this incident. The Trial Chamber therefore fĳinds that the failure to give notice did not materially impair the ability of the Brima Defence to prepare its case. 1755. Accordingly, the Trial Chamber fĳinds the Accused Brima criminally responsible for committing the murder of three civilian Nigerian men at State House as part of a widespread and systematic attack against the civilian population. ii. Killing of a soldier’s wife at the State House Area 1756. The Trial Chamber has found that the Accused Brima personally killed the wife of one of his soldiers outside State House in Freetown in early January 1999.3022 Witness TF1-184 stated that he heard the husband of the victim assert that “[t]his Papay [the Accused Brima] had been after my woman for quite sometime.”3023 1757. Yet again this incident is not pleaded in the Indictment, rendering the Indictment defective. The Trial Chamber must therefore determine whether this defect in the Indictment was cured by clear, timely and consistent notice to the Brima Defence. The Prosecution Supplemental Pre-Trial Brief and the Prosecu- tion’s Opening Statements do not refer to this incident. The only document that does refer to the incident is a prior statement of Prosecution witness TF1-334, dated 7 November 2003, which described the killing in the following terms: […] I returned to State House. Surprisingly Gullit started fĳiring soldiers who, according to him, were not members of the troop, who were not cooperating. Also, some Nigerian soldiers we have captured, Gullit fĳired them. Also, in my presence, he killed a certain lady we had brought from the jungle.3024 1758. As the date of disclosure was not provided to the Trial Chamber, it is unable to determine the timeliness of the notice to the Defence. 1759. Prosecution witness TF1-334 did not ultimately give evidence of this incident in his oral testimony, but Prosecution witness TF1-184 did. The Trial Chamber is unable to determine the passage of time between the initial disclosure of the Prosecution material and the testimony of witness TF1-184, and is therefore unable to determine the timeliness of the notice. However, the Brima Defence did not object. The Trial Chamber therefore fĳinds that the failure to give notice did not materially impair the ability of the Brima Defence to prepare its case. 1760. The Trial Chamber accordingly fĳinds that the Accused Brima is criminally responsible for personally killing a soldier’s wife at the State House area.

3022 TF1-184, Transcript 27 September 2005, p. 62; TF1-334, Transcript 14 June 2005, pp. 22, 27. 3023 TF1-184, Transcript 27 September 2005, p. 62. 3024 Statement of Witness TF1-334 dated 7 November 2003, CMS p. 6585 [confĳidential]. judgments 1649

iii. Unlawful killings at Kissy Mental Home/Portee area 1761. The Trial Chamber heard unchallenged evidence that shortly after the AFRC forces invaded Freetown in early January 1999, on the way from Kissy Mental Home towards the Portee area, the Accused Brima personally shot dead a nun.3025 Witness TF1-153 stated that he moved together with the AFRC troops to the Portee area by the Cotton Tree where they met nuns and that after ‘Gullit’ ordered the nuns to walk faster, he later took out his pistol and shot dead “a black nun.”3026 1762. The Trial Chamber fĳinds that once again, the Indictment does not plead the incident of the killing of a nun by the Accused Brima around the Portee area, which renders the Indictment defective. The Trial Chamber observes that the Prosecution Supplemental Pre-Trial Brief and its Opening Statement do not mention the killing of a nun in the Portee area. However, this defect was cured by the information provided in the pre-trial statement of witness TF1-153 dated 28 February 2003. 1763. Although the pre-trial statement of witness TF1-153 does not provide spe- cifĳic details on the killing of a nun by the Accused Brima, the information contained therein put the Defence on adequate notice.3027 Further information was contained in the pre-trial statement of witness TF1-153 on the conduct of the Accused Brima upon the AFRC troops’ retreat from Freetown, and the witness responded to the question put to him in relation to the killing of the black nun. In addition, the Defence cross examined the witness on this incident.3028 1764. Taking these statements together, the Trial Chamber fĳinds that adequate notice was given to the Brima Defence of this incident. Accordingly, the Trial Chamber fĳinds the Accused Brima individually criminally liable for committing the murder of a nun around the Kissy Mental Home/Portee area, as part of a widespread and systematic attack against the civilian population. iv. Unlawful killings in the Wellington area 1765. Witness TF1-334 testifĳied that in early January 1999, AFRC forces in the Wellington area, including the Accused Brima, shot at civilians.3029 The witness stated that all the three Accused participated in the shooting of civilians and that he saw ‘Gullit’ shooting with his own gun. The witness did not state whether any persons died as a result of the shooting. 1766. Furthermore, the Indictment does not plead the particulars of the incidents that took place around the Wellington area in which the Accused Brima is

3025 TF1-153, Transcript 23 September 2005, pp. 21–22. 3026 TF1-153, Transcript 23 September 2005, p. 22. 3027 TF1-153, Prior Witness Statement, 28 February 2003, CMS pp. 10269–10272 [confĳidential]. 3028 TF1-153, Transcript 23 September 2005, pp. 50–51. 3029 TF1-334, Transcript 14 June 2005, p. 98. 1650 part iv alleged to have shot at civilians, and the Prosecution Supplemental Pre-Trial Brief, Opening Statement and witness statements provide no information on this spe- cifĳic incident with regard to the Accused Brima. The Trial Chamber will therefore make no fĳinding on this incident. v. Amputation of a civilian’s hand at Old Road area 1767. The Trial Chamber heard unchallenged evidence that ‘Gullit’ (the Accused Brima) intentionally amputated the hand of a man at Shell Company by Old Road in Freetown in January 1999.3030 The Indictment does not plead the material facts regarding this specifĳic incident with regard to the Accused Brima and is therefore defective. The Trial Chamber must therefore determine whether this defect was cured by clear, timely and consistent notice to the Brima Defence. 1768. The Prosecution’s Pre-Trial Brief and Opening Statement do not refer to this incident. Annex A of the Prosecution Supplemental Pre-Trial Brief states that “Alex Tamba Brima ordered amputations of civilians because they had pointed out the rebel positions to ECOMOG” [emphasis added].3031 This information does not put the Defence on notice of the Prosecution’s intent to charge the Accused with the personal commission of an amputation. The Trial Chamber notes however, that the pre-trial statement of witness TF1-184 specifĳically refers to the commission of the act by the Accused Brima: In late January 1999, around the Kissy mental hospital, I saw Kabila telling members of the high command including Gullit that the civilians where showing ECOMOG where we were hiding. I then heard Gullit say ‘well those hands that point against us, cut them of.’ After this I saw several victims’ amputations. The commander in charge of cutting hands was Lt Col Changabulanga. The amputations were done on the Old Road, Shell Company. Changabulanga, Gullit and 55 were there. I saw Gullit cutting hands of one man with [a] cutlass. The boys were doing this too. I saw 6 persons whose hands were cut.3032 The Trial Chamber cannot determine whether this information was disclosed to the Defence before the start of trial. Therefore the Trial Chamber considers that the Defence was not given timely and consistent notice of critical material facts. 1769. The Trial Chamber notes however that the Defence cross examined the witness with respect to this incident,3033 and therefore fĳinds that the failure to provide adequate notice did not materially impair the ability of the Brima Defence to prepare its case. Accordingly, the Trial Chamber fĳinds the Accused Brima individually criminally liable, pursuant to Article 6(1) of the Statute, for committing the

3030 TF1-184, Transcript 27 September 2005, p. 80. 3031 Prosecution Supplemental Pre-Trial Brief, Annexure A, p. 100. 3032 Statement of witness TF1-184 dated 20 May 2005, CMS p. 9824 [confĳidential]. 3033 TF1-184, Transcript 27 September 2005, p. 80. judgments 1651 amputation of one civilian at Shell Company, Old Road, as part of a widespread and systematic attack against the civilian population in January 1999. b. Ordering/Instigating i. Order to kill civilians in Fourah Bay area 1770. The Trial Chamber has found that the Accused Brima ordered his soldiers to kill civilians in the Fourah Bay area in retaliation for the killing of an AFRC soldier.3034 The Trial Chamber is satisfĳied that the Accused Brima ordered the commission of these crimes in the awareness that the crimes were likely to be committed. ii. Orders to terrorise and collectively punish the civilian population 1771. The Trial Chamber heard the following unchallenged evidence of witness TF1-184 who was with the AFRC troops during the Freetown invasion of January 1999. The witness testifĳied that in the presence of the Accused Kanu, ‘Gullit’ ordered ‘Major Mines’ to collect cutlasses and to distribute them to the soldiers so that amputations could be carried out. ‘Changabulanga’ distributed the cutlasses to the soldiers. Describing the manner in which the amputations were carried out, the witness stated that “[c]ivilians were given either “long sleeves” meaning that the hand from the wrist downwards was removed, or “short sleeves” meaning that the entire arm from the bicep or elbow downwards was removed.”3035 The witness further stated that a new battalion under the command of ‘Changabulanga’ was created by ‘Kande.’ The aim of the battalion was to create fear among the civilian population. To do this, they amputated civilians’ hands.3036 The Trial Chamber also heard that during the retreat, the Accused Brima ordered the hands of all those who were pointing out the AFRC positions to ECOMOG forces to be amputated. As a result, “Mines” came back with a bag full of hands an hour and a half later.3037 From the pattern of the events, the Trial Chamber has no doubt that the hands were amputated from civilians by AFRC forces. 1772. Witness TF1-334 told the Trial Chamber that on an unspecifĳied day during the January 1999 invasion of Freetown, AFRC troops occupied the area of Kissy Mental Home in the eastern part of Freetown. In the evening hours ‘Gullit’ (the Accused Brima), in the presence of senior AFRC commanders including ‘Bazzy’ (the Accused Kamara) and ‘Five-Five’ (the Accused Kanu), ordered his troops to “clear up” the area by killing civilians as punishment for their support of ECOMOG.3038 The Accused Brima in presence of the Accused Kamara and Accused

3034 Factual Findings, Unlawful Killings, para. 925, supra. 3035 TF1-184, Transcript 27 September 2005, p. 74. 3036 TF1-184, Transcript 29 September 2005, pp. 15–16. 3037 TF1-184, Transcript 27 September 2005, pp. 81–82. 3038 TF1-334, Transcript 14 June 2005, pp. 83–84. 1652 part iv

Kanu, ordered his troops to go to the “low-cost area” and amputate the arms of civilians, kill civilians and burn property “because the civilians were celebrating the arrival of ECOMOG.”3039 1773. The orders of the Accused Brima to the perpetrators of the amputations, together with the fact that a battalion was created not for military strategy but specifĳically to instil fear amongst the civilian population in Freetown, clearly indicate an intention to terrorise the civilians. The Trial Chamber also heard the following unchallenged evidence of witness TF1-084 who stated that during the rebel attack on Freetown in January 1999, civilians were mutilated and killed by ARFC forces because the AFRC believed that the people of Freetown supported President Tejan Kabbah.3040 Witness TF1-334 was present when ‘Gullit’ announced that it was time to attack Freetown and that the Sierra Leone People’s Party government was responsible for denying the success of the rebel troops. He ordered that Freetown should be looted and burnt down, that anyone who opposed the troops should be considered a “collaborator” and should be killed.3041 This testimony is corroborated by witness TF1-033 who also heard ‘Gullit’ order the burning of houses and the murder of civilians during the attack on Freetown.3042 This evidence was unchallenged and is credible. 1774. The Trial Chamber also heard that in early January 1999 during the Freetown invasion, at State House, the Accused told his fĳighters to force captured civilians to join the AFRC forces in order to compensate for those fĳighters killed by ECOMOG. Following the order, civilians who refused to join the AFRC forces were shot in the presence of the Accused Brima, and their dead bodies thrown out of the back of State House.3043 In addition, witness TF1-334 also testifĳied that Brima ordered the abduction of civilians from Freetown during the attack “so as to attract the attention of the international community.”3044 During the attack civilians were indeed abducted. Another witness testifĳied that when the ARFC entered Freetown, they ordered the civilians to sing while they were burning their houses.3045 The Trial Chamber found the above Prosecution evidence, which was unchallenged, credible. 1775. The Trial Chamber also heard evidence that soon after the troops lost State House the Accused Brima was informed by a soldier that one of the troops had

3039 Prosecution Final Brief, para. 1663; TF1-334, Transcript 14 June 2005, pp. 84, 87. 3040 TF1-084, Transcript 6 March 2005, pp. 42–47; TF1-227, Transcript 11 March 2005, pp. 62–63, 101–103. 3041 TF1-334, Transcript 13 June 2005, pp. 100–104. 3042 TF1-033, Transcript 11 July 2005, pp. 60–64. 3043 TF1-024, Transcript 7 March 2005, pp. 46–48, 72–74. 3044 TF1-334, Transcript 14 June 2005, pp. 62–64. 3045 TF1-157, Transcript 26 September 2005, pp. 18–19, 23–24, 26, 29–30. judgments 1653 been hacked to death by civilians at the Fourah Bay crossroad.3046 In response, the Accused Brima called ‘Major Mines,’ one of his subordinates, and instructed him to collect cutlasses at the SLRA3047 compound. ‘Major Mines’ returned with cutlasses, some of which he kept for himself while the remainder he distributed to ‘Changabulanga’ who was the “battalion commander for amputations.” The Accused Brima then ordered his men to go to Upgun roundabout where he told his fĳighters that “these people we should teach them a lesson.” He ordered his men to amputate and kill civilians and burn the area down. The Trial Chamber has found that the order to commit these crimes was carried out.3048 On the basis of this evidence the Trial Chamber is satisfĳied that the Accused Brima ordered the commission of crimes in full awareness that the crimes were likely to be committed. Witnesses TF1-334 and TF1-104 testifĳied that the amputations and killings of civilians continued during the AFRC retreat from Freetown. When it became clear that Guinean troops had taken over, ‘Gullit’ saw that the civilian population was celebrating. In the presence of the Accused Kamara and Kanu, ‘Gullit’ stated that the people of Freetown were ungrateful and ordered the troops to go as far as they could burning and killing people. Attacks on civilians were then carried out by the troops around the area of the Kissy Mental Hospital, Blackhall Road and the Kissy Police Station up to PWD Junction near Shankardass.3049 Witness TF1- 334 testifĳied that he personally saw six civilians whose arms were amputated by ‘Changabulanga.’ The arms of the civilians were chopped offf at the elbow and ‘Osman Sesay’ told them to “go to Pa Tejan Kabbah to get new hands.”3050 1776. Prosecution witness TF1-033 testifĳied 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 fĳighters under the command of ‘Gullit.’ The witness saw and heard ‘Gullit’ ordering his men to commit atrocities against the civilian population as they were retreating. As a result of the order, girls and women were raped by the fĳighters.3051 This evidence was not challenged. The Trial Chamber fĳinds that through the above unchallenged evidence, the Prosecution has proved beyond reasonable doubt that the Accused Brima is individually criminally responsible for ordering his subordinates to commit those crimes, as part of a widespread attack on the civilian population during the January 1999 invasion of and retreat from Freetown.

3046 TF1-184, Transcript 27 September 2005, pp. 71–72. 3047 “Sierra Leone Roads Authority,” clarifĳied upon question from the Bench, Transcript 30 September 2005, p. 5. 3048 Factual Findings, Unlawful Killings, paras. 919–926, supra. 3049 TF1-334, Transcript 14 June 2005, pp. 83–87; TF1-104, Transcript 30 June 2005, pp. 31–33. 3050 TF1-334, Transcript 14 June 2005, pp. 81–82. 3051 TF1-033, Transcript 11 July 2005, pp. 65–66. 1654 part iv

iii. Orders to kill collaborators 1777. The Trial Chamber also heard evidence that during the January 1999 attack on Freetown, the police were specifĳically targeted and punished by the AFRC troops who saw them as “collaborators” of the Kabbah Government. Witness TF1-334 heard ‘Gullit’ giving orders to the AFRC troops in Freetown, specifying that “[p]olice stations should be targeted and burnt down” and “collaborators” killed.3052 Witness TF1-157 confĳirmed the fact that the invading AFRC troops searched Freetown for police offfĳicers and killed them and “their people,” meaning their families. The witness also saw the AFRC troops attack the Eastern Police Station.3053 iv. Order to loot UN Vehicles and civilian property 1778. The Trial Chamber heard the unchallenged evidence of witness TF1-334 that on 6 January 1999, the Accused Brima ordered the Operations Commander to loot vehicles at United Nations headquarters and to bring them back to State House and that the Operations Commander complied with the order.3054 Another witness, Gibril Massaquoi, testifĳied that soon after the January 1999 Freetown invasion, he saw the Accused Kanu and other commanders driving UN vehicles in Freetown.3055 The Trial Chamber is satisfĳied on the basis of this evidence that the Accused Brima ordered the commission of this crime in full awareness that the crime was likely to be committed and that the order was carried out. The Trial Chamber heard evidence that in Allen Town, on the eve of the invasion of Freetown in January 1999, the Accused Brima gathered his troops and instructed them to execute “collaborators” - a term witness TF1-334 explained was used to refer to any person who did not support the AFRC troops. Brima also informed his troops that as he did not have the means to pay them they were free to loot from the civilian population. Brima also instructed the troops to burn down all police stations.3056 v. Order to kill 14 captive Nigerian ECOMOG soldiers at State House 1779. The Trial Chamber has found that at State House on an unknown date during the Freetown attack, Brima ordered the execution of 14 to 16 captive and unarmed Nigerian ECOMOG soldiers.3057 Although the Prosecution witnesses TF1- 334 and TF1-033 gave varying accounts of why the Nigerians were killed, they were all consistent regarding the fact that the Accused Brima gave the order for the

3052 TF1-334, Transcript 13 June 2005, pp. 100–102. 3053 TF1-157, Transcript 25 September 2005, pp. 19–20, 22, 29–30, 58–60; Transcript 26 September 2005, pp. 23–24. 3054 TF1-334, Transcript 14 June 2005, pp. 5, 21–26. 3055 Gibril Massaquoi, Transcript 7 October 2005, p. 126. 3056 TF1-334, Transcript 13 June pp. 100–103. 3057 Factual Findings, Unlawful Killings, paras. 911–912, supra. judgments 1655

Nigerians to be killed.3058 The Trial Chamber found that these ECOMOG soldiers, hors de combat, were subsequently killed.3059 On the basis of this evidence the Trial Chamber is satisfĳied that the Accused Brima ordered the commission of crimes in full awareness that the crimes were likely to be committed. vi. Order to kill three nuns at Kissy Mental Home 1780. A number of Prosecution witnesses testifĳied that on an unspecifĳied day in early January 1999, AFRC troops captured two clerics and eight nuns at Kissy Mental Home. After ECOMOG began bombarding the troops there, the two abducted clerics escaped. ‘Gullit’ ordered his fĳighters to execute the eight nuns “so as to prevent them escaping and leaking information.” Pursuant to this order, Foday Bah Marah a.k.a. ‘Bulldoze’ executed fĳive nuns.3060 The witness stated that following the execution of the nuns, the Accused explained to his troops that they were trapped and that it was time “for a complete bulldoze.” The entire brigade then began to withdraw towards Wellington killing civilians and burning houses as they went.3061 Witness George Johnson also testifĳied that the troops had eight abducted nuns at Kissy 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.3062 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 testifĳied that it was ‘Gullit’ who ordered their execution.3063 The Trial Chamber is satisfĳied that the Accused Brima gave the order to kill the nuns and that the killing was carried out. On the basis of this evidence the Trial Chamber is satisfĳied that the Accused Brima ordered the commission of crimes in full awareness that the crimes were likely to be committed. vii. Order to massacre civilians in Rogbalan Mosque 1781. The Trial Chamber heard unchallenged evidence that at Kissy Mental Home while the AFRC were retreating from Freetown, the Accused Brima called several senior commanders together and informed them that he had received information that civilians were harbouring ECOMOG troops in a nearby mosque. He told his commanders not to assume that mosques were housing civilians and ordered that all those found in the mosque be killed. On these instructions, the Accused Kanu set offf with the soldiers. Once they reached the mosque the Accused

3058 TF1-033, Transcript 11 July 205, pp. 63–65; Gibril Massaquoi, Transcript 7 October 2005, pp. 115–116; TF1-334, Transcript 14 June 2005, pp. 22–28. 3059 Factual Findings, Unlawful Killings, para. 912, supra. 3060 TF1-334, Transcript 14 June 2005, pp. 95–97; George Johnson, Transcript 16 September 2005, p. 55; TF1-184, Transcript 27 September 2005, pp. 82–84. 3061 TF1-334, Transcript 14 June 2005, pp. 97–98. 3062 George Johnson, Transcript 16 September 2005, p. 55. 3063 TF1-184, Transcript 27 September 2005, pp. 82–84. 1656 part iv

Kanu ordered the troops to begin fĳiring. The witness observed that the mosque was full of civilians and that many people were killed.3064 The evidence of this massacre was corroborated by the following witnesses. 1782. Witnesses TF1-083 and TF1-021 both testifĳied about a massacre at Rogbalan Mosque in Freetown in January 1999. Towards the end of January 1999,3065 witness TF1-083 was told that there was an ongoing fĳire fĳight between ECOMOG troops and rebels. He therefore decided to seek refuge in Rogbalan Mosque. When he arrived he found approximately 70 dead bodies inside the mosque.3066 Witness TF1-021 testifĳied that he was present in Rogbalan Mosque at midday on a Friday in January 1999 when men wearing “mixed clothing” (partly combat uniform and partly civilian clothing) and carrying guns and machetes attacked the mosque. The attackers fĳirst robbed the worshippers and then told them that they would all be killed for supporting President Kabbah. The attackers then began shooting. The witness estimated that 71 worshippers were killed in this attack. The witness stressed that the victims were civilian worshippers who had gathered for the traditional 14:00 prayers.3067 The Trial Chamber is satisfĳied that the Accused Brima gave the order to kill the civilians at Rogbalan Mosque and that the killing was carried out by his subordinates. On the basis of this evidence the Trial Chamber is satisfĳied that the Accused Brima ordered the commission of crimes in full awareness that the crimes were likely to be committed. viii. Order to abduct and enslave civilians including child soldiers 1783. The Trial Chamber heard evidence that during the retreat of the AFRC fĳighters from Freetown, the Accused Brima ordered the abduction of civilians “in order to attract the attention of the international community.” Civilians were then abducted by the AFRC troops and used to carry loads. On Brima’s orders, the young boys under the age of fĳifteen years were later trained and forced into Small Boys Units.3068 The Trial Chamber notes the evidence of Prosecution witness TF1- 024 that the Accused Brima ordered the abduction of civilians because he had lost so many troops and needed reinforcements from among the civilian population.3069 On the basis of all the Prosecution evidence narrated above, the Trial Chamber is satisfĳied that the Accused Brima ordered the commission of these crimes in full awareness that they were likely to be committed. The Trial Chamber fĳinds, pursuant to Article 6(1) of the Statute, that the Prosecution has proved beyond reasonable doubt that the Accused Brima ordered his subordinates to

3064 TF1-334, Transcript 14 June 2005, pp. 87–89. 3065 TF1-083, Transcript 8 April 2005, p. 58. 3066 TF1-083, Transcript 8 April 2005, pp. 69–71. 3067 TF1-021, Transcript 15 April 2005, pp. 25–32. 3068 Factual Findings, Child Soldiers, para. 1278, supra; TF1-334, Transcript 14 June 2005, pp. 62–64, 118–121; Transcript 15 June 2005, pp. 14–15. 3069 TF1-024, Transcript 7 March 2005, p. 47. judgments 1657 commit crimes against the civilian population in Freetown in January 1999 as part of a widespread attack on the population. c. Planning 1784. No evidence was adduced that the Accused Brima planned any of the crimes committed under Counts 1–6, 10 and 14 in Freetown and the Western Area. The Trial Chamber fĳinds that the Prosecution has not proved this mode of criminal responsibility against the Accused Brima in relation to Counts 1–6, 10 and 14 in Freetown and the Western Area. In view of the continuing nature of the crimes charged under Counts 9, 12 and 13 and the fact that they span across several Districts, the Trial Chamber will discuss the Accused Brima’s responsibility for these crimes below.3070 d. Otherwise aiding and abetting 1785. As stated above with regards to liability for commission of crimes in Fourah Bay, the Trial Chamber has found that there is evidence that the Accused Brima participated in the attack on Fourah Bay in which civilians were killed and houses burnt. The Trial Chamber found that the Accused Brima was present during the commission of the crimes and either himself participated or failed to admonish the troops from committing the crimes. 1786. Given his authority as commander of the troops, the Trial Chamber fĳinds Brima’s presence at the scene gave moral support which had a substantial efffect on the perpetration of the crime. In addition, given the systematic pattern of crimes committed by the AFRC troops throughout the District, the Trial Chamber is satisfĳied that the Accused Brima was aware of the substantial likelihood that his presence would assist the commission of the crime by the perpetrators.

(b) Responsibility of the Accused Brima Under Article 6(3) of the Statute (i) Submissions 1787. The Prosecution submits in its Final Brief that the Accused Brima has superior responsibility for all crimes committed by his subordinates in Freetown between 6 January 1999 until around 28 January 1999.3071 1788. The Brima Defence submits that the evidence of mutiny by junior soldiers at Colonel Eddie Town, which led to the arrest and ‘long detention’ of the three Accused, ‘weakens any responsible chain of command and the existence of superior authority.’3072 The Brima Defence further submits that there was no efffective command or control over the fĳighters that attacked Freetown, citing in support of

3070 Responsibility of the Accused, Brima, paras. 1820–1838, infra. 3071 Prosecution Final Brief, paras. 1637–1640. 3072 Brima Final Brief, para. 105. 1658 part iv this argument the Prosecution Military Expert’s conclusion that ‘the AFRC faction had a strong command capability which failed on 6th January 1999.’3073 (ii) Findings a. Existence of a superior-subordinate relationship 1789. The Trial Chamber has found that the Accused Brima was overall commander of the troops in Freetown.3074 The Trial Chamber will now consider the evidence pertaining to the Accused Brima’s control of the troops from the time he regained command throughout the attack on Freetown until the retreat of the troops to Benguema in February 1999 in order to ascertain whether a superior- subordinate relationship existed. 1790. At Allen Town on 5 January 1999, the Accused Brima ordered the invasion of Freetown and specifĳied the locations to be captured, including State House. ‘Gullit’ announced that the troops were entitled to loot civilian property as he was unable to pay them. However, he also stated that diamonds and dollars were ‘government’ property and should be given to the Brigade.3075 The Trial Chamber considers the limits placed by the Accused Brima on the permissible excesses of his troops indicative of his ability to control their behaviour. 1791. Witness TF1-334 described at length the movement of the troops towards State House on 6 January 1999. His evidence reveals a steady, organised advance pursuant to the orders of the Accused Brima who had specifĳied the locations to be captured. The witness was part of the advance troop and he refers to a number of occasions where they captured new ground and then waited for the brigade senior command, including the Accused Brima, to arrive and tell them what to do next.3076 At one point the witness stated that he and the other soldiers “will not do anything without the command of Gullit.”3077 The witness states that Gullit ordered the soldiers to set fĳire to vehicles and this was a deliberate tactic to create an obstacle to prevent ECOMOG armoured cars reaching the AFRC position.3078 The witness refers to a number of other occasions prior to the troops’ arrival at State House on which the Accused Brima gave orders which were obeyed.3079 1792. Witness George Johnson also describes a co-ordinated advance to State House. The troops advanced in battalions and his role as task force commander was to ensure that they moved the right way and maintained discipline.

3073 Brima Final Brief, para. 195; see also exhibit P-36, Iron Report, para. E6.1. 3074 Role of the Accused, Brima, para. 420, supra. 3075 TF1-334, Transcript 25 May 2005, pp. 100–103. 3076 TF1-334, Transcript 13 June 2005, pp. 104–112. 3077 TF1-334, Transcript 13 June 2005, p. 112. 3078 TF1-334, Transcript 13 June 2005, pp. 110–111. 3079 TF1-334, Transcript 13 June 2005, pp. 105, 107, 109, 118. judgments 1659

He reported throughout this time to the Accused Brima, who gave orders to the troops throughout the advance.3080 1793. The troops’ acquiescence in the Accused Brima’s assumption of command suggests that he was able to efffectively control them, notwithstanding any lingering loyalties to SAJ Musa. The Trial Chamber therefore rejects the submission of the Brima Defence that the disruption to Brima’s authority due to his arrest in Eddie Town prevented him from resuming the control necessary for a fĳinding of superior responsibility. 1794. Upon capturing State House, the AFRC established its headquarters there. The Accused Brima was in command.3081 Other senior commanders including the Accused Kamara and Kanu were also present there from time to time.3082 On arrival at State House, Brima ordered the opening of Pademba Road prison.3083 There is evidence of the Accused Brima giving other orders at this time which were obeyed.3084 1795. The movement of the troops throughout 6 January remained ordered and strategic. Witness George Johnson describes the deployment of the various battalions at diffferent locations, which he marked on a map of Freetown.3085 There is evidence of commanders reporting the progress of their troops to the Accused Brima.3086 Witness Gibril Massaquoi testifĳied that on the evening of 6 January he attended a meeting at State House to plan an attack on ECOMOG at Wilberforce. All three Accused were present and Gullit commanded the meeting.3087 1796. ‘Mosquito’ announced over Radio France International on 6 January that the troops commanded by the Accused Brima had captured Freetown and would continue to defend Freetown.3088 Later that same day, Brigade Administrator Colonel FAT Sesay, in the presence of all of the Accused, gave a message in the same terms over BBC Radio.3089 Witnesses DBK-037 and DBK-012 also stated that FAT Sesay gave an interview to the BBC while in Freetown, although they did not testify as to its content.3090

3080 George Johnson, Transcript 16 September 2005, pp. 20–26. 3081 TF1-334, Transcript 14 June 2005, pp. 21–22; Gibril Massaquoi, Transcript 7 October 2006, p. 115; George Johnson, Transcript 16 September 2005, p. 27. 3082 TF1-334, Transcript 14 June 2005, pp. 21–22; TF1-153, Transcript 22 September 2005, p. 99. 3083 George Johnson, Transcript 16 September 2005, p. 27. 3084 TF1-334, Transcript 14 June 2005, pp. 17, 23–24. 3085 George Johnson, Transcript 16 September 2005, pp. 29–37. 3086 George Johnson, Transcript 16 September 2005, p. 34; TF1-334, Transcript 14 June 2005, p. 100. 3087 Gibril Massaquoi, Transcript 7 October 2006, pp. 119–120. 3088 TF1-334, Transcript 14 June 2005, p. 20; TF1-153, Transcript 23 September 2005, pp. 4–6. 3089 TF1-334, Transcript 14 June 2005, pp. 20–21; George Johnson, Transcript 16 September 2005, p. 39. 3090 DBK-037, Transcript 4 October 2006, p. 30; DBK-012, Transcript 9 October 2006, p. 45. 1660 part iv

1797. However, the presence of the AFRC headquarters at State House was the high point of the AFRC dominance during invasion. It appears from the evidence of Prosecution and Defence witnesses that in the days following 6 January, ECOMOG regained the upper hand and in the next two to three weeks the AFRC was dislodged from Freetown and was in continual retreat. The precise movement of the troops during the retreat was difffĳicult to ascertain from the testimony of Prosecution and Defence witnesses. Witness George Johnson testifĳied that approximately a week after 6 January, with ECOMOG advancing, the AFRC headquarters moved to Ferry Junction, near Shankardass.3091 From Shankardass, they pulled out to Kissy Mental Home.3092 Witness TF1-334 states that towards the third week the troops then retreated to Eastern Police.3093 Witness George Johnson tes- tifĳied that after several days at Kissy the troops pulled out and retreated through Calaba Town and eventually to Benguema.3094 1798. Prosecution military expert Colonel Iron’s report notes that the command structure began to break down in Freetown and the military chain of command failed after the capture of State House, since commanders gave orders to soldiers nearest them without using battalion structure.3095 1799. Colonel Iron further concludes that the fĳighting force retained cohesion in retreat although the battalion structure had completely broken down.3096 He opines that the AFRC force “was still a capable fĳighting force. Commanders were still able to make sound decisions, and the command structure was efffective enough to be able to conduct a relatively complex manoeuvre.”3097 1800. The Trial Chamber examined the following evidence in light of the above expert opinion of Colonel Iron. 1801. Witness TF1-334 testifĳied that he remained mostly with the brigade administration while in Freetown, but he states that “the troops were all scattered, everybody was just about.”3098 He stated that any time the commanders needed reinforcements to go on a battle, he and his supervisor needed to move around raising soldiers to go on the mission.3099 This evidence was corroborated by witness TF1-184, who was ordered by ‘Gullit’ to fĳind manpower to carry out a mission,3100

3091 George Johnson, Transcript 16 September 2005, pp. 45–46. 3092 George Johnson, Transcript 16 September 2005, p. 52. 3093 TF1-334, Transcript 14 June 2005, pp. 54–55. 3094 George Johnson, Transcript 16 September 2005, pp. 58–59. 3095 Exhibit P-36, Iron Report, para. D4. 3096 Exhibit P-36, Iron Report, para. D5–1. 3097 Exhibit P-36, Iron Report, para. D5–6. 3098 TF1-334, 14 June 2005, p. 41. 3099 TF1-334, 14 June 2005, pp. 41–42. 3100 TF1-184, Transcript 30 September 2005, pp. 8–9. judgments 1661 and Gibril Massaquoi who reports ‘Five-Five’ issuing a similar order to look for men.3101 Witness George Johnson no longer described the movement of the troops in terms of battalions led by commanders, rather his testimony becomes a description of a series of isolated incidents that he witnessed as he moved around Freetown. He states that after the headquarters lost State House arms and ammunition were nearly fĳinished and were no longer being distributed by the G4, but “everybody had his or her own arms and ammunition.”3102 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].” Commanders took the soldiers around them “who they think they were able to control and were listening to them” and started amputations.3103 1802. Witness TF1-334 testifĳied that Gullit told the troops at Kissy mental home ‘Gentleman (sic), now the jungle has started.’3104 Witness Gibril Massaquoi testi- fĳied that after losing State House, looting and burning increased. He described an incident in which a female civilian complained to ‘Five-Five’ about her house being burned down, in response to which Five-Five arrested the soldier responsible. Five-Five stated that there had been no order to do this and that things were becoming ‘very rampant.’3105 Witness TF1-184 stated that the troops at Kissy with ‘Gullit’ and ‘Bazzy’ were losing ground because they were in ‘a confused state.’3106 ‘Gullit’ complained to the witness that ‘Five-Five’ had been acting contrary to his wishes.3107 He testifĳied that during the retreat from Kissy, the soldiers called on the civilian carrying their ammunition so that they could stage an attack, but he had thrown it away while running.3108 Witness Gibril Massaquoi stated under cross-examination that by the time the troops left Freetown he did not believe that the commanders knew everything that was being done by their men.3109 1803. The Trial Chamber notes from the above evidence that the Accused Brima remained able to exercise command over the troops in his immediate surroundings. There is ample evidence of the Accused Brima giving orders to troops in Freetown which were obeyed.3110 A number of these orders were issued by the

3101 Gibril Massaquoi, Transcript 7 October 2005, pp. 13–15. 3102 George Johnson, Transcript 16 September 2005, p. 48. 3103 TF1-184, Transcript 29 September 2005, pp. 104–105. 3104 TF1-334, Transcript 14 June 2005, p. 83. 3105 Gibril Massaquoi, Transcript 7 October 2005, pp. 13–15. 3106 TF1-184, Transcript 27 September 2005, p. 71. 3107 TF1-184, Transcript 27 September 2005, p. 77. 3108 TF1-184, Transcript 27 September 2005, p. 83. 3109 Gibril Massaquoi, Transcript 11 October 2005, p. 60. 3110 TF1-184, Transcript 27 September 2005, pp. 64, 71–75, 81–84; TF1-334, Transcript 14 June 2005, pp, 19–21, 32, 63, 66–67, 83–88, 95–97, 100; TF1-104, Transcript 30 June 2005, pp. 31–33; George Johnson, Transcript 16 September 2005, pp. 25, 27, 42–43, 55; TF1-023, Transcript 10 March 2005, pp. 29–30, 33; Gibril Massaquoi, Transcript 7 October 2005, pp. 115–116; TF1-024, Transcript 7 March 2005, p. 45, 51–52; TF1-033, Transcript 11 July 2005, pp. 63–66. 1662 part iv

Accused Brima in the presence of the Accused Kamara and Kanu.3111 He was also able to refuse requests from his subordinates. Witness TF1-153 at one point approached ‘Gullit’ to ask him to release the priests and nuns held captive at PWD, but ‘Gullit’ refused.3112 1804. The Trial Chamber agrees with Col. Iron’s opinion above that the AFRC fĳighting force “retained cohesion in retreat although the battalion structure had completely broken down” and that the AFRC force “was still a capable fĳighting force. Commanders were still able to make sound decisions, and the command structure was efffective enough to be able to conduct a relatively complex manoeuvre.” 1805. The foregoing evidence establishes a superior-subordinate relationship existed between the Accused Brima and the AFRC troops in Freetown after the troops lost State House. The Trial Chamber therefore fĳinds that the Accused Brima was in a superior-subordinate relationship with the AFRC troops that committed crimes in Freetown even after the “Headquarters” were dislodged from State House. b. Actual or Imputed Knowledge 1806. The Prosecution submits that ‘based on the fact that in most cases the orders to commit crimes were given to the subordinates directly by the Accused or at least in their presence, the Accused either knew or at the very least had reason to know that the subordinates were about to commit the offfences or had done so.’3113 1807. The Trial Chamber is satisfĳied that the Accused Brima ought reasonably to have known of the commission of crimes committed in which he was not directly involved. He directly participated in the commission of a number of crimes.3114 The crimes were committed on a wide scale in physical proximity to the Accused Brima at State House. 1808. The Trial Chamber therefore fĳinds that there can be no reasonable doubt that the Accused Brima was in possession of information to put him on notice that crimes were being committed by his subordinates, although he may not have been directly involved in such crimes. c. Failure to prevent or punish 1809. There is no evidence that the Accused Brima took any measures to prevent the troops under his control in Freetown from committing crimes against or punish the perpetrators of such crimes.

3111 TF1-104, Transcript 30 June 2005, pp. 31–33; TF1-334, 14 June 2005, pp. 54, 62–63, 83–87, 118–119. 3112 TF1-153, 23 September 2005, pp. 12–14; Gibril Massaquoi, Transcript 11 October p. 19. 3113 Prosecution Final Brief, para. 1639. 3114 See Responsibility of the Accused, Brima, paras. 1750–1786 supra. judgments 1663

(iii) Conclusion 1810. The Trial Chamber fĳinds that the Prosecution has proved beyond reasonable doubt that the Accused Brima is liable as a superior under Article 6(3) for crimes committed in Freetown and the Western Area during the relevant Indictment period.

8. Port Loko District 1811. The Trial Chamber has found that AFRC/RUF troops unlawfully killed a number of civilians in Port Loko District as charged under Counts 4 through 5.3115 In addition, AFRC troops held persons in sexual slavery as charged under Count 9.3116 AFRC/RUF troops used abducted civilians for forced labour, as charged under Count 13. (a) Responsibility of the Accused Brima under Article 6(1) of the Statute (i) Submissions 1812. In its Final Brief, the Prosecution argues that the Accused Brima is liable for the crimes committed in Port Loko District as a principal in a joint criminal enterprise.3117 1813. The Brima Defence invites the Trial Chamber to disregard the testimony of witness TF1-256 on the grounds that it is unreliable and alternatively submits that as the Accused Brima was under detention at the material time, he had no relationship with the alleged perpetrators of the crimes committed in Port Loko District and there is no nexus between the events in Nonkoba described by witness TF1-256 and the Accused.3118 (ii) Findings 1814. No evidence was adduced that the Accused Brima individually committed, ordered, planned, instigated or aided and abetted the commission of any of the crimes that occurred in Port Loko District. The Trial Chamber fĳinds that the Prosecution has not proved these modes of individual criminal responsibility against the Accused Brima for the crimes committed in Port Loko District during the relevant Indictment period. (b) Responsibility of the Accused Brima Under Article 6(3) of the Statute (i) Submissions 1815. The Indictment alleges that the Accused Brima, while holding a position of superior responsibility and exercising efffective control over his subordinates, is

3115 Factual Findings, Unlawful Killings, para. 965. 3116 Factual Findings, Outrages upon Personal Dignity, para. 1187. 3117 Prosecution Final Brief, paras. 1755–1756. 3118 Brima Final Brief, paras. 251–252. 1664 part iv individually criminally responsible for the crimes referred to in Articles 2, 3 and 4 of the Statute.3119 The Trial Chamber fĳinds that this is sufffĳicient to charge the Accused Brima with liability under 6(3) for crimes committed in Port Loko District, although it is not specifĳically referred to in the Indictment as one of the Districts in which the Accused Brima held a command position.3120 The Trial Chamber notes that the charge of superior responsibility is subsequently reiterated separately in relation to all Counts for which crimes are alleged in Port Loko District.3121 In addition, the Prosecution in its Supplementary Pre-Trial Brief stated its case that the Accused Brima is liable under Article 6(3) for crimes committed by his subordinates in Port Loko.3122 The Brima Defence were therefore put on notice at an early stage of the charge against the Accused. 1816. The Prosecution in its Final Brief makes no submissions as to the superior responsibility of the Accused Brima for crimes committed in Port Loko District after the retreat from Freetown in late January 1999.3123 1817. The Brima Defence submits that the alleged perpetrators of the crimes in Port Loko District were not under the control of the Accused Brima as he was not in Port Loko District at the material time.3124 (ii) Findings 1818. The Trial Chamber found that following the second unsuccessful attack on Freetown staged jointly by AFRC/RUF commanders, the Accused Brima, accompanied by the Accused Kanu and a group of AFRC troops, went to Lunsar to assist ‘Superman,’ who was fĳighting against Issa Sesay at the time.3125 No evidence has been adduced on the organisation of the troops accompanying the Accused Brima or whether this group fought alongside ‘Superman’ or under his overall command. The Trial Chamber fĳinds that the Prosecution has failed to establish that the Accused Brima had efffective control over the AFRC troops fĳighting in these areas. (iii) Conclusion 1819. The Trial Chamber fĳinds pursuant to Article 6(3) of the Statute, that the Prosecution has not proved this mode of individual criminal responsibility against the Accused Brima, for the crimes committed in Port Loko District during the relevant Indictment period.

3119 Indictment, para. 36. 3120 See Indictment, para. 24. 3121 Indictment, paras. 41, 50, 57, 64, 65, 73. 3122 Prosecution Supplementary Pre-Trial Brief, paras. 80–82, 129–131. 3123 Submissions on superior responsibility for crimes committed in Port Loko District are made only in relation to the Accused Kamara: see Prosecution Final Brief, paras. 1761–1764. 3124 Brima Final Brief, para. 252. 3125 Role of Accused, para. 478, supra. judgments 1665

9. Responsibility for Crimes of Enslavement, Sexual Slavery and Child Soldiers 1820. The Trial Chamber has found that civilians were subjected to sexual slavery as charged under Count 9; that children under the age of 15 were conscripted into the AFRC forces and/or used to participate in active hostilities as charged under Count 12; and that civilians were enslaved as charged under Count 13. Because of the continuing nature of these crimes and the fact that victims were in most cases forced to follow the perpetrators on a journey that spans across a number of districts, the Trial Chamber has deemed it fĳit to consider these additional fĳindings on responsibility of the Accused Brima for these crimes here. These fĳind- ings do not detract from the Trial Chamber’s fĳindings elsewhere in this Judgement with regard to these three crimes. 1821. The evidence demonstrates that abducted civilians were used to perform a multiplicity of critical tasks for the troops. Both in Bombali District and Freetown, abducted civilians were used to carry food, military supplies and ammunition.3126 At ‘Colonel Eddie Town,’ abductees were used to harvest rice crops, the main source of food.3127 At Lunsar, civilians were abducted specifĳically to help guide the troops as they moved at night.3128 Once brutalised, trained and often forced to ingest illicit substances, child soldiers were forced to perform a number of military functions. More generally, the large number of abducted civilians gave the impression to the local population that the troops enjoyed greater support than they actually did. 1822. Once the AFRC troops had established a base at Camp Rosos in Bombali District, abductees were forced to undergo a three week military training program. Civilians that attempted to escape were executed.3129 The Prosecution Military Expert, Colonel Iron, stated: “The AFRC had little choice but to run this training: there was a fĳinite number of trained ex-SLA soldiers, and each casualty or loss could not be otherwise replaced.”3130 Although the Trial Chamber accepts that the primary purpose of these abductions was to support the military efffort, it rejects Colonel Iron’s conclusion that the AFRC had “little choice” in adopting this strategy. 1823. The Trial Chamber heard that sexual slavery was systemic amongst the perpetrators. Abducted women were distributed to soldiers and commanders who

3126 Factual Findings, Enslavement, paras. 1379–1380, supra; exhibit P-36, Iron Report, paras. C5.7-C5.8. 3127 Exhibit P-36, Iron Report, para. C3.8. 3128 Exhibit P-36, Iron Report, para. C5.9 3129 George Johnson, Transcript 15 September 2005, pp. 65–66. See also TF1-334, Transcript 24 May 2005, p. 28 on the length of military training program for civilians at Rosos. 3130 Exhibit P-36, Iron Report, para. C3.2. 1666 part iv signed for them. There were disciplinary measures regulating the conduct of sexual slaves and their rebel ‘husbands.’ This system was overseen by commanders who appointed a ‘Mammy Queen’ to assist them. At Camp Rosos, abducted young women were forced to provide sexual services and to perform domestic tasks.3131 1824. The magnitude of commission of the three enslavement crimes by AFRC troops indicates their systemic nature. The Trial Chamber notes that the Brigade included a position in which an individual was appointed specifĳic responsibility for abducted civilians.3132 Although the Trial Chamber is unable to make a fĳinding on the total number of civilians abducted and forced to undergo military training, the example provided by Colonel Iron that one battalion at ‘Colonel Eddie Town’ consisted of approximately 150 trained soldiers supplemented by approximately 200 abducted civilians3133 corroborates the evidence of fact-based witnesses that these crimes were committed on a large scale.3134 1825. Indeed, it would appear that once established the modus operandi of enslavement became so deeply entrenched that it was difffĳicult to break. Col. Iron’s conclusion about the abduction of civilians during the withdrawal from Freetown is instructive.

There can be little military justifĳication for what happened” during the retreat from Freetown […] The abductions seem particularly self-defeating: at a time when there was benefĳit in reducing the size of the force to make it faster moving during the escape, the abductees swelled the size of the column, slowed it down, and made it a bigger target. One reason given for the abductions was to make the fĳighting strength seem larger than it was; but I suspect that the truth is more simply that abductions were now common practice for the AFRC.3135 [emphasis added] 1826. Based on the large scale, continuous and organised nature of the enslavement crimes, the Trial Chamber is satisfĳied that the only reasonable inference is that a substantial degree of planning and preparation were required to commit the crimes. 1827. On the basis of the evidence below, the Trial Chamber is further satisfĳied that the Accused Brima, alone or with others, designed the commission of the three crimes (enslavement, sexual slavery and recruitment and use of child soldiers) and that although these crimes were largely committed by his subordinates, his contribution was substantial.

3131 Factual Findings, Outrages upon Personal Dignity, paras. 1138–1139, supra. 3132 Exhibit P-36, Iron Report, para. C3.5; TF1-153, Transcript 23 September 2005, p. 102. 3133 Exhibit P-36, Iron Report, para. C3.5. 3134 Factual Findings, Enslavement, para. 1359, supra. 3135 Exhibit P-36, Iron Report, para. D5.4. judgments 1667

1828. The Accused played a substantial role in the system of exploitation and cruelty. The Trial Chamber has found that the Accused Brima was the overall commander of both the AFRC troops that moved from Mansofĳinia, Koinadugu District to Camp Rosos, Bombali District and of the AFRC troops that later invaded Freetown on 6 January 1999. As the overall commander, the Accused Brima was substantially involved in planning the various operations in these Districts.3136 1829. The Trial Chamber has found that, on a number of occasions, the Accused Brima publicly addressed the troops and advocated criminal conduct.3137 1830. The Accused Brima also directly participated in and made a substantial contribution to the planning and execution of the said crimes. In Mansofĳinia, at the start of the journey of the AFRC troops through Bombali District, the Accused Brima ordered that any strong civilian encountered by the troops on the journey should be captured and made to join the troops.3138 Following this order, hundreds of civilians were abducted in Bombali District.3139 These civilians were used as forced labour.3140 During the attack on Karina, Bombali District, Brima ordered the distribution of children captured among the commanders.3141 Upon completion of civilian military training at Camp Rosos, the trainees were addressed by both the Accused Kanu and the Accused Brima. Brima then ordered that the boys should be distributed to the various companies, while the women were sent back to the soldiers and commanders who had taken them as their “wives.”3142 1831. During the withdrawal from Freetown in January 1999, the Accused Brima held a meeting attended by the Accused Kamara and Kanu, among others. At this meeting, the Accused Brima ordered his troops to begin abducting civilians, saying that this would attract the attention of the international community.3143 Troops immediately began breaking into houses and capturing civilians, especially young girls, and taking them to headquarters at the PWD.3144 Witness TF1-334 testifĳied that “[a]lmost everybody” had civilians, including the commanders,3145 and abducting commanders were formally responsible for ensuring that civilians did not

3136 Military Structure of the AFRC Fighting Force, paras. 586–590, supra. 3137 Responsibility of the Accused, Brima, paras. 1770–1783, supra. 3138 Factual Findings, Enslavement, para. 1355, supra; TF1-334, Transcript 23 May 2005, p. 17. 3139 Factual Findings, Enslavement, para. 1359, supra; George Johnson, Transcript 15 September 2005, pp. 58–59. 3140 Factual Findings, Enslavement, para. 1359, supra; George Johnson, Transcript 15 September 2005, p. 64. 3141 3142 TF1-334, Transcript 24 May 2005, pp. 29–31. 3143 TF1-334, Transcript 14 June 2005, pp. 62–63. 3144 TF1-334, Transcript 14 June 2005, pp. 63–64. 3145 TF1-334, Transcript 14 June 2005, pp. 118–119. 1668 part iv escape.3146 Several days later, the Accused Brima ordered the further abduction of civilians.3147 This order was also implemented by the troops.3148 1832. As was the pattern with all operations overseen by the Accused Brima, AFRC fĳighters exhibited a depraved indiffference towards human life in abducting and enslaving civilians. Children watched their abductors executing family members.3149 Throughout the conflict women and young girls were treated as war bounty, abducted from their homes and repeatedly raped.3150 Child soldiers were terrorised, drugged and forced to commit crimes against other civilians.3151 Given his authority, the Accused was in a position to shut down this system of exploitation entirely, to deter the excesses committed by his troops, and to alleviate the plight of the victims. On the evidence adduced the Trial Chamber fĳinds that he failed to do so. 1833. The Trial Chamber stresses that the above evidence relates entirely to enslavement crimes committed in Bombali and the Western Area. The Trial Chamber has found that the Accused Brima was not involved in the commission of crimes in Bo, Kenema, Kailahun, Kono, Koinadugu and Port Loko Districts. 1834. The Trial Chamber is satisfĳied that the Accused planned, ordered, organised and implemented the system to abduct and enslave civilians which was in fact committed by AFRC troops in Bombali and Western Area. It is further satisfĳied that the Accused had the direct intent to set up and implement the system of exploitation involving the three enslavement crimes, namely, sexual slavery, conscription and use of children under the age of 15 for military purposes, and abductions and forced labour. (a) Responsibility under Article 6(1) for Count 9 (Outrages on Personal Dignity) 1835. On the basis of the foregoing, the Trial Chamber is satisfĳied beyond reasonable doubt that the Accused Brima is individually criminally responsible under Article 6(1) of the Statute for planning the commission of the crime of outrages on personal dignity in Bombali District and Freetown and the Western Area. (b) Responsibility under Article 6(1) for Count 12 (Child Soldiers) 1836. On the basis of the foregoing, the Trial Chamber is satisfĳied beyond reasonable doubt that the Accused Brima is individually criminally responsible under Article 6(1) of the Statute for planning the commission of conscription of children

3146 TF1-334, Transcript 14 June 2005, p. 119. 3147 TF1-334, Transcript 14 June 2005, pp. 77–78. 3148 TF1-334, Transcript 14 June 2005, pp. 79–80. 3149 TF1-158, Transcript 26 July 2005, pp. 33–34. 3150 Factual Findings, Sexual Violence, paras. 973–980, 1044–1049, supra. 3151 Factual Findings, Child Soldiers, para. 1254, supra. judgments 1669 under the age of 15 into the armed group or using them to participate actively in hostilities in Bombali District and the Western Area. (c) Responsibility under Article 6(1) for Count 13 (Enslavement) 1837. On the basis of the foregoing, the Trial Chamber is satisfĳied beyond reasonable doubt that the Accused Brima is individually criminally responsible under Article 6(1) of the Statute for planning the commission of enslavement in Bombali District and the Western Area. (d) Responsibility under Article 6(3) for Counts 9, 12 and 13 1838. As the Trial Chamber has already found the Accused Brima criminally responsible for the planning of the enslavement crimes, it is not necessary to examine his responsibility under Article 6(3).

C. The Accused Kamara 1. Allegations in the Indictment 1839. The Indictment alleges: At all times relevant to this Indictment, Brima Bazzy Kamara was a senior member of the AFRC/ Junta and RUF forces. Brima Bazzy Kamara was a member of the group which staged the coup and ousted the government of President Kabbah. Johnny Paul Koroma, Chairman and leader of the AFRC, appointed Brima Bazzy Kamara a Public [sic] Liaison Offfĳicer (PLO) within the AFRC. In addition, Brima Bazzy Kamara was a member of the Junta governing body. Between about mid February 1998 and about 30 April 1998, Brima Bazzy Kamara was a commander of AFRC/RUF forces based in Kono District. In addition, Brima Bazzy Kamara 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. Brima Bazzy Kamara was a commander of AFRC/RUF forces which attacked Freetown on 6 January 1999. […] In [his] positions referred to above, […] Brima Bazzy Kamara […], individually or in concert with [the Accused Brima and the Accused Kanu], Johnny Paul Koroma aka JPK, Foday Saybana Sankoh, Sam Bockarie aka Mosquito aka Maskita, Issa Hassan Sesay aka Issa Sesay, Morris Kallon aka Belai Karim, Augustine Gbao aka Augustine Bao and/or other superiors in the AFRC, Junta and AFRC/RUF forces, exercised authority, command and control over all subordinate members of the AFRC, Junta and AFRC/RUF forces. […] […] Brima Bazzy Kamara […], by [his] acts or omissions, [is] individually criminally responsible pursuant to Article 6.1. of the Statute for the crimes referred to in 1670 part iv

Articles 2, 3 and 4 of the Statute as alleged in this Indictment, which crimes [he] planned, instigated, ordered, committed or in whose planning, preparation or execution [he] otherwise aided and abetted, or which crimes were within a joint criminal enterprise in which [he] participated or were a reasonably foreseeable consequence of the joint criminal enterprise in which [he] participated. In addition, or alternatively, pursuant to Article 6.3. of the Statute, Brima Bazzy Kamara […], while holding positions of superior responsibility and exercising efffective control over [his] subordinates, [is] individually criminally responsible for the crimes referred to in Articles 2, 3 and 4 of the Statute. [The] Accused is responsible for the criminal acts of his subordinates in that he knew or had reason to know that the subordinate was about to commit such acts or had done so and […] failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof.3152 1840. The Trial Chamber notes that the Indictment alleges additionally, in relation to the Counts set out therein, that “by their acts or omissions in relation to these events, Alex Tamba Brima, Brima Bazzy Kamara and Santigie Borbor Kanu, pursuant to Article 6(1) and, or alternatively, Article 6(3) are individually criminally responsible for the crimes alleged […].”3153 1841. Where there have been submissions by the Parties specifĳic to each Accused, District and mode of liability, they have been considered as they arise in the fĳind- ings below.

2. Bo, Kenema and Kailahun Districts (25 May 1997–14 February 1998) 1842. In its factual fĳindings, the Trial Chamber has found that an unknown number of civilians were unlawfully killed by AFRC/RUF forces in Bo District in June 1997, as charged under Counts 4 through 5. Civilians were also terrorised and subjected to collective punishment, as charged under Counts 1 and 2.3154 1843. The Trial Chamber has also found that AFRC/RUF forces committed a number of crimes in Kenema District in this period. Civilians were unlawfully killed, as charged under Counts 4 and 5,3155 and physical violence was inflicted on an unknown number of civilians as charged under Count 10.3156 Children were illegally recruited and used for military purposes, as charged under Count 12.3157 An unknown number of civilians were abducted and used as forced labour at Cyborg Pit in Tongo Field, as charged under Count 13.3158 Finally, civilians were terrorised and subjected to collective punishment, as charged under Counts 1 and 2.

3152 Indictment, paras. 25–27, 31, 35–36. 3153 Indictment, paras. 41, 50, 57, 64, 65, 73, 79. 3154 Factual Findings, Unlawful Killings, paras. 1475–1476, supra. 3155 Factual Findings, Physical Violence, para. 840, supra. 3156 Factual Findings, Child Soldiers, para. 1197, supra. 3157 Factual Findings, Enslavement, para. 1277, supra. 3158 Factual Findings, Acts of Terror and Collective Punishments, para. 1309, supra. judgments 1671

1844. The Trial Chamber has further found that RUF troops abducted civilians and used them as forced labour in Kailahun District during the AFRC Government period, as charged under Count 13.3159 Finally, civilians were terrorised and subjected to collective punishment, as charged under Counts 1 and 2. (a) Responsibility of the Accused Kamara Under Article 6(1) of the Statute (i) Submissions 1845. In its Final Brief, the Prosecution argues that given his position in the government, the Accused Kamara must have been aware of AFRC government policies which included the use of forced labour in Bo and Kenema Districts.3160 The Prosecution concludes that Kamara is therefore liable for planning, instigating or otherwise aiding and abetting the crime of enslavement in Kenema and Bo, as well as killings and other crimes committed during the AFRC Government period.3161 1846. In its Final Brief, the Kamara Defence submits that the Prosecution failed to prove beyond reasonable doubt that the Accused Kamara planned, instigated, ordered, committed or otherwise aided and abetted the planning, preparation or execution of the crimes committed in Bo and Kenema Districts.3162 (ii) Findings 1847. The Prosecution adduced no evidence that the Accused Kamara committed, ordered, instigated, planned or otherwise aided and abetted any of the crimes that occurred in Bo, Kenema and Kailahun Districts. The Prosecution has not proved beyond reasonable doubt that the Accused Kamara is criminally responsible for crimes committed in the Kono District. The Trial Chamber fĳinds that the Prosecution has not proved any mode of individual criminal responsibility against the Accused Kamara for the crimes committed in the Bo, Kenema and Kailahun Districts. (b) Responsibility of the Accused Kamara Under Article 6(3) of the Statute (i) Submissions 1848. The Prosecution submits in its Final Brief that the Accused Kamara bears superior responsibility for crimes committed during the period 25 May 1997 to 14 February 1998 by virtue of his position as Principal Liaison Offfĳicer 3 and membership of the Supreme Council, which had control over the police and political authority over the military.3163

3159 Factual Findings, Enslavement, para. 1374, supra. 3160 Prosecution Final Brief, paras. 508–509. 3161 Prosecution Final Brief, para. 512 3162 Kamara Final Brief, paras. 121, 134. 3163 Prosecution Final Brief, paras. 506, 522. 1672 part iv

1849. The Kamara Defence submits that the Accused Kamara possessed no military authority and played “at best” a political role within the AFRC Government.3164 The Kamara Defence further submits that the Prosecution failed to show that the Accused Kamara had command and control over Sam Bockarie, Eddie Kanneh or any of the soldiers in Kenema.3165 The Kamara Defence further submitted that Sam Bockarie was in command of Kailahun District and no evidence was led to prove that persons under the command of the Accused Kamara took part in the crimes committed there.3166 No submissions were made specifĳic to Bo District. (ii) Findings a. Existence of a superior-subordinate relationship 1850. The Trial Chamber fĳinds that the Prosecution has not established beyond reasonable doubt that the Accused Kamara was in a superior-subordinate relationship with the perpetrators of any of the crimes committed in Bo, Kenema and Kailahun Districts during the period 25 May 1997 to 14 February 1998. 1851. As preliminary observation, the Trial Chamber reiterates that the existence of a superior-subordinate relationship is not precluded by the superior’s civilian status.3167 1852. The Trial Chamber refers to its fĳindings above in relation to the Accused Brima, where it was found that membership of the Supreme Council and proof of a de jure position of authority as a Principal Liaison Offfĳicer within the AFRC government is insufffĳicient per se to prove the existence of a superior-subordinate relationship. The Prosecution must prove that the Accused Kamara’s individual functions as PLO 3 and/or member of the Supreme Council enabled him to exercise efffective control over the perpetrators of the crimes committed in Bo, Kenema and Kailahun Districts. 1853. The Trial Chamber notes that there is little evidence on the Accused Kamara’s activities during the AFRC Government period, apart from his attendance at Supreme Council meetings.3168 It has not been established that the Accused Kamara possessed any individual decision making capacity within the Council. Witnesses testifĳied that ‘Bazzy’ had people working under him in the ministries he supervised, but did not specify what the work of these people involved.3169 The Trial Chamber has found that there is no evidence that the

3164 Kamara Final Brief, para. 64. 3165 Kamara Final Brief, para. 135. 3166 Kamara Final Brief, para. 162. 3167 Applicable Law, paras. 784–790, supra. 3168 Exhibit P-34, “Minutes of Emergency Meeting.” 3169 TF1-334, Transcript 20 June 2005, p. 93; George Johnson, Transcript 15 September 2005, pp. 17, 20. judgments 1673

Accused Kamara had any particular responsibility for internal or external security.3170 1854. The Trial Chamber therefore accepts the Kamara Defence’s submissions that the Prosecution has failed to prove that the Accused Kamara was in a superior- subordinate relationship with the perpetrators of the crimes in Kenema and Kailahun Districts. It has similarly not been established that the Accused Kamara was in a superior-subordinate relationship with the perpetrators of crimes committed in Bo District. As the absence this fĳirst element of superior responsibility is fatal to proof of liability under Article 6(3), the Trial Chamber will not consider the evidence relating to the Accused Kamara’s actual or imputed knowledge of crimes committed and his ability to prevent or punish the perpetrators. b. Conclusion 1855. The Trial Chamber fĳinds that it has not been established beyond reasonable doubt that the Accused Kamara is liable as a superior under Article 6(3) for crimes committed in Bo, Kenema and Kailahun Districts between 25 May 1997 and 14 February 1998.

3. Kono District 1856. The Trial Chamber has found that in the period February through June 1998, AFRC/RUF troops in Kono District unlawfully killed civilians, as charged under Counts 3 through 5,3171 and inflicted sexual and physical violence on civilians as charged under Counts 6 through 9 and 10 respectively.3172 AFRC/RUF troops also abducted civilians and used them as forced labour, as charged under Count 13,3173 and used illegally recruited children for military purposes, as charged under Count 12.3174 Finally, AFRC/RUF troops engaged in widespread looting, as charged under Count 14, terrorised the civilian population, as charged under Count 1, and committed collective punishments, as charged under Count 2.3175 (a) Responsibility of the Accused Kamara Under Article 6(1) of the Statute (i) Submissions 1857. In its Final Brief, the Prosecution contends that the Accused Kamara was the second in command to Denis Mingo (RUF) in Kono District and as such was involved in planning and designing the operations and crimes committed in

3170 Role of Accused, Kamara, para. 439, supra. 3171 Factual Findings, Unlawful Killings, para. 857, supra. 3172 Factual Findings, Sexual Violence, para. 1109, supra; Physical Violence, para. 1213, supra. 3173 Factual Findings, Enslavement, para. 1333, supra. 3174 Factual Findings, Child Soldiers, para. 1278, supra. 3175 Factual Findings, Pillage, paras. 1525–1527, supra. 1674 part iv

Kono District.3176 The Prosecution then submits that only Kamara bears liability under Articles 6(1) and (3) of the Statute.3177 Furthermore, the Prosecution submits in its closing arguments that: for Kono, during the crimes committed in the Indictment period after the intervention, 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 the theory of a JCE.3178 The Prosecution adds given the position of the Accused, his role in planning, and the reports he received, the Accused intended that the crimes would occur, or was aware of the substantial likelihood of the occurrence of all the crimes. It concludes that he is therefore liable for planning and instigating the crimes charged, or in the alternative that he actively encouraged the commission of such acts.3179 1858. Finally, the Prosecution alleges that the Accused Kamara gave direct orders to burn houses, and argues that given his position it may be inferred that he gave orders for all the crimes charged in Kono District.3180 1859. In its Final Trial Brief, the Kamara Defence submits that the RUF was in complete control of Kono District, and that the Prosecution failed to prove that the Accused Kamara planned, instigated, ordered, committed or otherwise aided and abetted the planning, preparation or execution of the crimes committed in Kono District. It further argues that numerous witnesses who testifĳied regarding crimes committed in Kono did not mention Kamara.3181 (ii) Findings 1860. The Trial Chamber has found that in the period February through June 1998, AFRC/RUF troops in Kono District unlawfully killed civilians, as charged under Counts 3 through 5,3182 and inflicted sexual and physical violence on civilians as charged under Counts 6 through 9 and 10 respectively.3183 AFRC/RUF troops also abducted civilians and used them as forced labour, as charged under Count 13,3184 and used illegally recruited children for military purposes, as charged under Count 12.3185 Finally, AFRC/RUF troops engaged in looting, as charged under Count

3176 Prosecution Final Brief, para. 1281. 3177 Prosecution Final Brief, para. 1279. 3178 Transcript, 7 December 2006, pp. 34–35. 3179 Prosecution Final Brief, para. 1282. 3180 Prosecution Final Brief, para. 1283. 3181 Kamara Final Brief, paras. 152–157. 3182 Factual Findings, Unlawful Killings, para. 857, supra. 3183 Factual Findings, Sexual Violence, para.1109, supra; Physical Violence, para. 1213, supra. 3184 Factual Findings, Enslavement, para. 1333, supra. 3185 Factual Findings, Child Soldiers, para. 1278, supra. judgments 1675

14, terrorised the civilian population, as charged under Count 1, and committed collective punishments, as charged under Count 2.3186 1861. The Prosecution has not adduced any evidence that the Accused Kamara committed, ordered, planned, instigated, or otherwise aided and abetted any of the crimes committed in the Kono District. The Trial Chamber fĳinds that the Prosecution has not proved any of these modes of individual criminal responsibility against the Accused Kamara for the crimes committed in the Kono District. (b) Responsibility of the Accused Kamara Under Article 6(3) of the Statute (i) Submissions 1862. The Prosecution submits that the evidence ‘coupled with the high level of authority possessed by the Second Accused’ proves that there was a superior- subordinate relationship between the Second Accused and the perpetrators of crimes committed in Kono District in this period.3187 1863. The Kamara Defence submits that the evidence of both Prosecution and Defence witnesses alike proves that Kono District after February 1998 was completely controlled by the RUF, to whom the AFRC troops were subordinate.3188 (ii) Findings a. Existence of a superior-subordinate relationship 1864. The Prosecution has not demonstrated beyond a reasonable doubt that crimes were committed by members of the AFRC/RUF during the initial attack on Koidu Town in early March 1998 as troops advanced together into Kono District. Thus there can be no fĳindings of liability pursuant to Article 6(3) during this attack. 1865. The Trial Chamber recalls its fĳinding that after the departure of Johnny Paul Koroma from Kono District, the AFRC was subordinated to the RUF and the Accused Kamara became the highest ranking AFRC soldier in the District. The Trial Chamber further found that the AFRC and RUF worked closely together in Kono District. AFRC and RUF commanders each supervised mixed battalions of AFRC and RUF troops.3189 1866. The Trial Chamber is satisfĳied, on the basis of the evidence that follows, that the Prosecution has proved beyond reasonable doubt that the Accused Kamara exercised efffective control over some mixed battalions of AFRC/RUF troops in Kono District.

3186 Factual Findings, Pillage, paras. 1525–1527, supra. 3187 Prosecution Final Brief, paras. 1284–1287. 3188 See for example: Kanu Final Brief, para. 341; Kamara Final Brief, paras. 151–157. 3189 Role of the Accused, para. 183, supra. Military Structure of the AFRC Fighting Force, para. 450, supra. 1676 part iv

1867. Witness TF1-334 testifĳied in cross-examination that while Kamara was subordinate to Denis Mingo, the AFRC maintained their own command. He stated that Kamara received orders from Denis Mingo and was answerable to him in terms of operations, but that the AFRC operated under their command and were answerable to the AFRC commanders.3190 Witness George Johnson corroborated the evidence of witness TF1-334 that the Accused Kamara was the senior AFRC commander, subordinate to Denis Mingo.3191 1868. Witness TF1-334 testifĳied that the Accused Kamara gave orders through his subordinate the Operations Commander, whose name was given to the Court in closed session.3192 The Accused Kamara also appointed Colonel Foday Kallay as Deputy Operations Commander.3193 Battalions consisting of both RUF and AFRC soldiers (but predominantly the latter) were under AFRC command in Jagbwema Fiama, Tombodu, Bumpe, Sewafe, Yengema, and Woama.3194 Witness TF1-334 testi- fĳied that the battalion commanders were subordinate to the Operations Commander and reported directly to him.3195 Witness TF1-334 testifĳied that the Accused Kamara promoted these individuals in rank after the capture of Kono District.3196 1869. The Accused Kamara was based, along with other senior commanders, at the AFRC headquarters in Kono District, in Masingbi Road.3197 Witness TF1-334 testifĳied that discussions were held regularly between the military supervisors, the Accused Kamara and the Operations Commander.3198 The witness went on patrol with the Operations Commander and soldiers under his command as they monitored the various battalions.3199 Witness TF1-334 also testifĳied that the AFRC troops held muster parades every week in Kono, until they were prohibited from doing so by Morris Kallon (RUF).3200 The Trial Chamber notes that the prohibition on AFRC musters therefore occurred only at the end of the period in which crimes were committed in Kono. The witness explained that ‘mustering’ is a military term that refers to the force being brought together and addressed publicly. This procedure is indicative of an organised force that is responsive to superior command.

3190 TF1-334, Transcript 21 June 2005, pp. 17–19. 3191 George Johnson, Transcript 15 September 2005, pp. 37–38. 3192 TF1-334, Transcript 18 May 2005, pp. 22–23, Transcript 19 May 2005, p. 15. 3193 TF1-334, Transcript 19 May 2005, p. 16. 3194 TF1-334, Transcript 19 May 2005, pp. 16–26. 3195 TF1-334, Transcript 19 May 2005, p. 21. 3196 TF1-334, Transcript 19 May 2005, p. 50. 3197 TF1-334, Transcript 19 May 2005, pp. 26–27. 3198 TF1-334, Transcript 19 May 2005, p. 38. 3199 TF1-334, Transcript 19 May 2005, pp. 20, 23, 25–26, 32. 3200 TF1-334, Transcript 19 May 2005, pp. 9–10. judgments 1677

1870. There is evidence that the Accused Kamara’s orders were followed. Witness TF1-334 testifĳied that Kamara ordered the troops to attack ECOMOG forces.3201 In May 1998, the Accused Kamara ordered the burning of houses surrounding the AFRC headquarters in Masingbi Road. This order was obeyed by soldiers including witness TF1-334.3202 The commanders of surrounding villages including Yengema, Bumpe, Jagbwema Fiama and Tombodu were also ordered to burn those villages and witness TF1-334 accompanied the Operations Commander to monitor the carrying out of these orders. Witness TF1-334 also testifĳied that Kamara organised a squad called “wild dogs” who were responsible for “raising,” that is, taking things from other soldiers.3203 1871. The Trial Chamber recalls that there was a parallel presence and authority of RUF and AFRC commanders active in Kono District in this period.3204 While the Trial Chamber is satisfĳied that the Accused Kamara maintained efffective control over some mixed battalions of AFRC and RUF troops, given evidence of the Accused Kamara’s subordination to Denis Mingo; evidence of RUF dominancy over the AFRC; and indications that independent RUF chains of command may have also existed during this time period, the Trial Chamber fĳinds that it has not been established beyond reasonable doubt that the Accused Kamara’s authority extended to all battalions active in Kono District. Thus, it cannot be stated with certainty that Kamara exercised efffective control over the entire AFRC and RUF troops in Kono District during this period. This however does not exclude that he had efffective control over some troops. 1872. The Prosecution did not generally attempt to diffferentiate between crimes committed by AFRC troops and those committed by RUF rebels. They instead referred to ‘AFRC/RUF troops’ as the perpetrators of crimes in Kono District. For many crimes, the Trial Chamber has been unable to determine beyond reasonable doubt the afffĳiliation of the perpetrators nor to which specifĳic commanders they were subordinate. 1873. The Trial Chamber is, however, satisfĳied that it has been established beyond a reasonable doubt that crimes were committed by ‘Savage’ and persons under his authority in Tombodu during this period.3205 The question that remains to be determined is whether he was subordinate to the Accused Kamara, and whether Accused Kamara was in a position to exercise efffective control over him.

3201 TF1-334, Transcript 20 May 2005, p. 7. 3202 TF1-334, Transcript 20 May 2005, pp. 7–8, 10. 3203 TF1-334, Transcript 20 May 2005, p. 34. 3204 Role of Accused, paras. 460–461, supra. Military Structure of the AFRC Fighting Forces, paras. 564–571, supra. 3205 Factual Findings, Physical Violence, para. 1202, supra. 1678 part iv

1874. Witness TF1-334 testifĳied that Captain Mohamed ‘Savage’ (alias Changabu- langa) was a commander in Tombodu. His deputy was Stafff Alhaji and he reported to the AFRC Operation Commander.3206 Witness TF1-334 testifĳied that the Accused Kamara promoted Stafff Alhaji to Lieutenant after the capture of Kono District.3207 He was a stafff sergeant until ‘Savage’ recommended him for promotion.3208 Witness George Johnson also stated that ‘Savage’ was in charge of a battalion in Tombodu and described him as being an SLA soldier.3209 1875. There is also evidence that the Accused Kamara actively exerted authority over ‘Savage’ by directly or indirectly supervising his activities in Tombodu. Witness TF1-334 testifĳied that the AFRC Operation Commander,3210 subordinate to the Accused Kamara, patrolled the battalions in various locations including Tombodu. Witness George Johnson testifĳied that Kamara, the Operations Commander and others went to Tombodu on several occasions during the Kono period.3211 The witness testifĳied that the Accused Kamara, together with Hassan Papa Bangura and others went to Tombodu to drink palm wine. On one of these occasions, the witness observed ‘Savage’ order the flogging of approximately seven civilians. On cross-examination he testifĳied that ‘Savage’ would beat people nearly every day and that it was a “common drill.”3212 The Trial Chamber notes that there is no indication on the evidence that the Accused Kamara also observed this event.3213 Witness TF1-334 testifĳied that the Accused Kamara visited Tombodu with other military supervisors to ensure that Johnny Paul Koroma’s orders to burn Tombodu were carried out.3214 1876. Witness TF1-334 testifĳied that ‘Savage’ informed the Accused Kamara that civilians in Tombodu were celebrating because they believed that ECOMOG had taken over the area and that as a result of this communication the AFRC Operations Commander, the witness and Colonel Momoh Dorty went to Tombodu to see what was happening.3215 When the witness arrived he observed that ‘Savage’ and his soldiers had amputated and killed a large number of civilians – actions which this Trial Chamber has found constitute crimes as alleged by the Prosecution.3216

3206 TF1-334, Transcript 19 May 2005, pp. 16, 21. 3207 TF1-334, Transcript 19 May 2005, pp. 50–51. 3208 TF1-334, Transcript 19 May 2005, p. 22. 3209 George Johnson, Transcript 15 September pp. 38, 40. 3210 Name of Company Commander admitted under seal: exhibit P-12. 3211 George Johnson, Transcript 15 September 2005, pp. 45–46. 3212 George Johnson, Transcript 15 September 2005, p. 49. 3213 George Johnson, Transcript 19 May 2005, p. 46. 3214 TF1-334, Transcript 20 May 2005, p. 18. 3215 TF1-334, Transcript 20 May 2005, pp. 11–15. 3216 Factual Findings, Unlawful Killings, para. 854, supra; Physical Violence, paras. 1201–1206, supra. judgments 1679

1877. Witness George Johnson similarly testifĳied that as the Nigerian ECOMOG troops pressured them out of the District, the Witness together with the three Accused, passed through Tombodu.3217 There, they met Battalion Commander ‘Savage’ and the three Accused saw that a large number of civilians had been killed by machete and their bodies had been thrown into a pit.3218 1878. The Trial Chamber notes that there is also evidence that ‘Savage’ was subordinate to the RUF. Witness TF1-334 stated that in addition to reporting to the Operations Commander, ‘Savage’ also reported to Denis Mingo.3219 Signifĳicantly, the witness puts Denis Mingo in Tombodu shortly after the crimes were committed. The witness testifĳied that Denis Mingo reacted to the crimes by telling ‘Savage’ that he was committing crimes against humanity.3220 1879. Prosecution witness George Johnson similarly testifĳied that ‘Savage’ was battalion commander at Tombodu but that he was appointed to the rank of Lieutenant by Denis Mingo.3221 He also testifĳied that ‘Savage’ remained under the command of Denis Mingo while some of his battalion fĳighters left with the witness’s group to go to Mansofĳinia.3222 1880. Defence witness DAB-095 testifĳied that Savage was the commander of a battalion of mixed AFRC and RUF troops in Tombodu.3223 Defence witness DBK- 117 testifĳied on re-examination that he visited Tombodu after December 1998.3224 He stated that by that time, ‘Stafff Alhaji’ was the commander in Tombodu and that ‘Savage’ was his deputy. At that time they were all under the control of the RUF.3225 1881. The Trial Chamber also notes that there is evidence that regardless of which faction he adhered to, ‘Savage’ was unruly in character and operated independently from his superiors. Prosecution witness George Johnson testifĳied in cross-examination that ‘Savage’ was very difffĳicult to control and was an “unpredictable character.”3226 1882. He testifĳied that “in the early stages” ‘Savage’ was under the command of Denis Mingo and would listen to his instructions and carry them out, but later became “abnormal” and stated that he would not listen to anyone except Johnny Paul Koroma.3227 On one occasion, prior to the time ‘Savage’ became “abnormal,”

3217 George Johnson, Transcript 19 May 2005, pp. 43–44. 3218 George Johnson, Transcript 19 May 2005, p. 45. 3219 TF1-334, Transcript 19 May 2005, pp. 22–23. 3220 TF1-334, Transcript 20 May 2005, p. 17. 3221 George Johnson, Transcript 19 September 2005, p. 46. 3222 TF1-334, Transcript 20 May 2005, pp. 56, 58, 70. 3223 DAB-095, Transcript 28 September 2006, p. 34. 3224 DBK-117, 16 October 2006, pp. 43–44 3225 DBK-117, 16 October 2006, p. 38. 3226 George Johnson, 19 September 2005, pp. 41, 51. 3227 George Johnson, 19 September 2005, p. 48. 1680 part iv the witness saw ‘Savage’ flogging two individuals in the presence of the Accused Brima and the Accused Kanu. Brima told him to stop, which he did, but witness George Johnson testifĳied that after they returned to Koidu Town, ‘Savage’ executed the two men.3228 1883. He also testifĳied that ‘Savage’ had possession of enough weapons to protect himself and his men and that because of this no one dared to tell him what to do or not to do.3229 1884. On the basis of the evidence examined above, the Trial Chamber is satis- fĳied that the Accused Kamara exercised efffective control over ‘Savage.’ There is clear evidence that ‘Savage’ was subordinate to the Accused Kamara; that Kamara both directly and indirectly through the SLA Operations Commander was in a position to supervise the activities of ‘Savage’; that the Accused Kamara promoted ‘Savage’; that ‘Savage’ himself reported to the Accused Kamara; and that the Accused Kamara was physically present in Tombodu when it was under the control of ‘Savage.’ 1885. The fact that ‘Savage’ also reported to Denis Mingo and remained with Denis Mingo after Kamara departed from the District does not preclude Kamara exercising efffective control over him.3230 1886. The Trial Chamber is also satisfĳied that ‘Savage’s alleged unpredictable character in and of itself does not bar a fĳinding that Kamara was in a position of efffective control over him. Evidence of a subordinate’s unpredictability or irre- sponsibility in no way vitiates a superior’s responsibility to exercise authority over that subordinate. Rather, it is exactly this type of situation to which a superior is under an obligation to respond by putting in place measures to prevent the commission of crimes by a subordinate or to punish such a subordinate once such crimes have been committed. 1887. Similarly, the Trial Chamber fĳinds the fact that ‘Savage’ and his men were well armed does not raise a reasonable doubt vis-à-vis the Accused Kamara’s ability to exercise efffective control over him. Subordinates in any organisation engaged in active combat will be armed or have access to weapons. It remains in all cases for superiors to put in place measures to prevent a malcontent or

3228 George Johnson, 19 September 2005, pp. 49–50. 3229 George Johnson, 19 September 2005, p. 47. 3230 The Trial Chamber recalls that in Aleksovski, the ICTY Trial Chamber stated that once efffective control was established then “whether the [subordinate] guards came concurrently under another authority, such as the military police commander, in no way detracts from the fact that the accused was their superior within the confĳines of Kaonik prison.” [Aleksovski Trial Judgement, para. 106]; and in Oric the Trial Chamber held that a superior can have efffective control over a subordinate even if another superior has concurrent, efffective control and issues contradictory orders. [Orić Trial Judgement, para. 313.] judgments 1681 unstable subordinate from using those weapons for his own purposes. Should a subordinate use the weaponry of the organisation to shore up his own power, it falls also to superiors to quell or at the very least attempt to quell such an initiative. The Trial Chamber is satisfĳied that as a senior commander of the AFRC, the Accused Kamara himself, or together with other senior commanders such as his immediate superior Denis Mingo, would have had the material ability to control ‘Savage’ and his subordinates. b. Actual or Imputed Knowledge 1888. The Prosecution submits that the Accused Kamara either knew or, at least had reason to know, that the subordinates were about to or had committed the offfences as the orders were given by him or in his presence. The Prosecution further submits the crimes committed by ‘Savage’ in Tombodu were so notorious that the Accused must have known.3231 1889. The Trial Chamber fĳinds it is not necessary to establish whether the crimes committed by ‘Savage’ and his battalion in Tombodu were “notorious” as there is clear evidence which establishes beyond a reasonable doubt that the Accused Kamara knew or ought to have known of the crimes. As examined above, there is evidence which establishes that Kamara was routinely apprised of the situation in Tombodu. He was himself repeatedly present in Tombodu and indirectly supervised the activities in Tombodu through patrols carried out by the SLA Operation Commander. He worked together with Denis Mingo to whom ‘Savage’ also reported. There is also evidence that the Accused Kamara was apprised specifĳi- cally of the crimes committed by ‘Savage’ and his battalion. ‘Savage’ sent a message to Kamara prior to the commission of the crimes indicating that the civilians in Tombodu were celebrating. Witness George Johnson testifĳied that the Accused Kamara passed through Tombodu after the commission of the crimes and himself observed the bodies of the civilians killed. c. Failure to prevent or punish 1890. The Prosecution submits that ‘as the key commander in the fĳield, the Second Accused clearly had the material ability to prevent offfences or to punish those subordinates responsible for committing crimes.’3232 1891. The Trial Chamber fĳinds on the basis of the evidence examined above that the Accused Kamara had the ability to issue orders which were followed; that he took over authority for promoting AFRC soldiers after Johnny Paul Koroma left Kono District; and that generally, the AFRC troops maintained an efffective day-today chain of command and regularly mustered, that therefore it was within the

3231 Prosecution Final Brief, para. 1286. 3232 Prosecution Final Brief, para. 1287. 1682 part iv

Accused’s material ability to prevent crimes committed by his subordinates or to punish subordinates for committing crimes. 1892. The Trial Chamber fĳinds further on the evidence the Accused Kamara did not attempt to prevent or punish the crimes committed by ‘Savage’ and his battalion in Tombodu. (iii) Conclusion 1893. The Trial Chamber fĳinds that the Accused Kamara was in a position of superior responsibility and criminally responsible under Article 6(3) of the Statute, for crimes committed by his subordinates in Kono District; namely, unlawful killings and physical violence, committed with the primary purpose to spread terror and to collectively punish civilians for allegedly failing to provide sufffĳicient support to the AFRC/RUF.

4. Kailahun District 1894. The Trial Chamber has found that an unknown number of civilians were unlawfully killed by RUF forces in or around February 1998, as charged under Count 53233 and that RUF troops or troops not established beyond a reasonable doubt to be members of the AFRC abducted civilians and used them as forced labour in Kailahun District in the period following 14 February 1998.3234 (a) Responsibility of the Accused Kamara Under Article 6(1) of the Statute (i) Submissions 1895. In its Final Brief, the Prosecution alleges only that the Accused was a principal in a joint criminal enterprise and is therefore liable for the crimes committed in Kailahun District.3235 1896. The Kamara Defence, in its Final Brief, argues that Kailahun District was an RUF stronghold and that the Accused Kamara had no role there.3236

(ii) Findings 1897. The Prosecution has not adduced any evidence that the Accused Kamara committed, ordered, planned, instigated, or otherwise aided and abetted any of the crimes committed in the Kailahun District. The Trial Chamber fĳinds that the Prosecution has not proved any of these modes of individual criminal responsibility against the Accused Kamara for the crimes committed in the Kailahun District.

3233 Factual Findings, Unlawful Killings, para. 864, supra. 3234 Factual Findings, Enslavement, para. 1374, supra. 3235 Prosecution Final Brief, para. 1372. 3236 Kamara Final Brief, para. 162. judgments 1683

(b) Responsibility of the Accused Kamara Under Article 6(3) of the Statute (i) Submissions 1898. The Prosecution in its Final Brief makes no submissions that the Accused Kamara bears superior responsibility for crimes committed in Kailahun District in the period after the Intervention in February 1998. 1899. The Kamara Defence submits that the Prosecution did not lead any evidence to show that the Accused Kamara was in Kailahun throughout the relevant period and that all the witnesses indicate that the entire Kailahun District was a RUF stronghold. (ii) Findings 1900. The Trial Chamber recalls its fĳindings that the only proven perpetrators of crimes committed in Kailahun District during this period were members of the RUF. The Trial Chamber also recalls its fĳinding that the AFRC and the RUF were not working together in Kailahun during this period.3237 1901. The Trial Chamber fĳinds the evidence insufffĳicient to establish that the Accused Kamara exercised efffective control over members of the RUF in Kailahun District after February 1998. 1902. In the absence of this fĳirst element of superior responsibility, it is not necessary to consider whether there is any evidence that the Accused Kamara had actual or imputed knowledge of the crimes committed and failed to prevent or punish the perpetrators. 1903. The Trial Chamber accordingly fĳinds that the Prosecution has not proved beyond reasonable doubt that the Accused Kamara is liable as a superior under Article 6(3) for crimes committed in Kailahun District.

5. Koinadugu District 1904. The Trial Chamber found that AFRC/RUF forces unlawfully killed or inflicted sexual or physical violence on an unknown number of civilians in Koinadugu District in the period February through September 1998, as charged under Counts 4 through 5, 6 through 9 and 10 respectively.3238 In addition, an unknown number of civilians were abducted and used as forced labour, as charged under Count 13.3239 Children were used for military purposes, as charged under

3237 Context of the Alleged Crimes, paras. 187–188, supra. 3238 Factual Findings, Unlawful Killings, para. 879, supra; Sexual Violence, paras. 1026, 1133, supra; Physical Violence, para. 1218, supra. 3239 Factual Findings, Enslavement, para. 1350, supra. 1684 part iv

Count 12.3240 Finally, AFRC/RUF forces also engaged in looting of civilian homes, as charged in Count 14.3241 (a) Responsibility of the Accused Kamara under Article 6(1) of the Statute (i) Submissions 1905. In its Final Brief, the Prosecution alleges that the three Accused are liable for planning and instigating or otherwise aiding and abetting the crimes committed in Koinadugu District. It argues that the crimes followed a consistent pattern.3242 1906. In its Final Brief, the Kamara Defence contends that those witnesses who testifĳied that the Accused Kamara was present in Koinadugu District during the Indictment period did not allege that he participated in the offfences alleged or that he instructed any other persons to do so.3243 (ii) Findings 1906a. The Prosecution has not adduced any evidence that the Accused Kamara committed, ordered, planned, instigated, or otherwise aided and abetted any of the crimes committed in the Koinadugu District. The Trial Chamber fĳinds that the Prosecution has not proved any of these modes of individual criminal responsibility against the Accused Kamara for the crimes committed in the Koinadugu District. (b) Responsibility of the Accused Kamara under Article 6(3) (i) Submissions 1907. The Prosecution submits that the Accused Kamara has superior responsibility for all crimes committed in the attack on Yifĳin.3244 (ii) Findings 1908. As stated above, Yifĳin was not a location pleaded in the Indictment. 1909. The Trial Chamber has found that the crimes committed in Koinadugu District were perpetrated by AFRC/RUF forces associated with groups led by SAJ Musa and Denis Mingo.3245 The Prosecution has not submitted, nor is there evidence to the efffect that, the Accused Kamara exercised efffective control over the troops of SAJ Musa or Denis Mingo. In the absence of a superior-subordinate relationship between the Accused Kamara and the perpetrators of the crimes in

3240 Factual Findings, Child Soldiers, para. 1277, supra. 3241 Factual Findings, Pillage, para. 1409, supra. 3242 Prosecution Final Brief, paras. 1412–1413. 3243 Kamara Final Brief, para. 184. 3244 Prosecution Final Brief, paras. 1414–1416. 3245 Factual Findings, Unlawful Killings, para. 892, supra. judgments 1685

Koinadugu District, it is unnecessary to consider whether there is any evidence that the Accused Kamara had actual or imputed knowledge of the crimes committed and failed to prevent or punish the perpetrators. 1910. The Trial Chamber accordingly fĳinds that the Prosecution has not established beyond reasonable doubt that the Accused Kamara is liable as a superior under Article 6(3) for crimes committed by AFRC/RUF troops in Koinadugu District.

6. Bombali District 1911. The Trial Chamber has found that AFRC troops in Bombali District engaged in unlawful killings of civilians as charged under Counts 3 through 53246 and inflicted sexual and physical violence on civilians as charged under Counts 6 through 9 and 10 respectively.3247 AFRC troops also abducted civilians and used them as forced labour and used children illegally recruited for military purposes, as charged under Counts 13 and 12 respectively.3248 Finally, AFRC troops terrorised the civilian population, as charged under Count 1, and committed collective punishments, as charged under Count 2.3249 (a) Responsibility of the Accused Kamara Under Article 6(1) of the Statute (i) Submissions 1912. In its Final Trial Brief, the Prosecution submits that the Accused Kamara was present when the order was given to burn down Karina and kill its inhabitants. On this evidence the Prosecution asks the Trial Chamber to infer that Kamara assisted in planning the attack. In addition, the Prosecution contends that Kamara was present in Karina and saw his own security guard carry out unlawful killings. The Prosecution further argues that given that he was present when the order was given to make Camp Rosos a civilian “no go” area, the systematic nature of crimes committed, and his position within the AFRC hierarchy, the Trial Chamber may be able to infer that the Accused promoted or encouraged the commission of crimes, and that he intended the commission of such crimes or was aware of the substantial likelihood that they would be committed.3250 1913. In its Final Brief, the Kamara Defence submits that the command structure during the attacks in Bombali District the command structure was not the one described by Prosecution witnesses.3251 It refers to Prosecution witnesses who

3246 Factual Findings, Unlawful Killings, paras. 897–899, supra. 3247 Factual Findings, Physical Violence, para. 1219, supra; Sexual Violence, para. 1041, supra. 3248 Factual Findings, Child Soldiers, para. 1278, supra; Enslavement, para. 1363, supra. 3249 Factual Findings, Acts of Terror and Collective Punishment, para. 1538, supra 3250 Prosecution Final Brief, para. 1509. 3251 Kamara Final Brief, paras. 195, 197, 201, 203. 1686 part iv testifĳied that the Accused Kamara was detained during a part of the relevant time period.3252 It further contends that most of the witnesses who testifĳied that the Accused Kamara was present in Bombali District during the Indictment period did not allege that he participated in the offfences alleged or that he instructed any other persons to do so. Finally, it argues that those witnesses who did allege such participation - in particular TF1-334 and George Johnson - failed to corroborate each others’ testimonies.3253 (ii) Findings a. Committing 1914. The Trial Chamber fĳinds that the Prosecution has not proved this mode of individual criminal responsibility against the Accused Kamara for the crimes committed in the Bombali District. b. Ordering 1915. The Trial Chamber fĳinds that the Accused Kamara ordered the unlawful killing of fĳive young girls in Karina. Kamara ordered that the girls be locked in a house and that the house then be set on fĳire. This order was obeyed by AFRC troops.3254 1916. The Trial Chamber fĳinds that as the deputy commander in Bombali District the Accused Kamara had sufffĳicient authority over the troops to instruct the commission of the crimes. On all the evidence adduced, the Trial Chamber fĳinds that the Accused Kamara was aware of the substantial likelihood that the burning to death of the fĳive young girls in Karina would be carried out. c. Planning 1917. The Trial Chamber recalls its fĳinding that the Accused Brima ordered the attack on Karina in an address to the troops at Kamagbengbe.3255 In the course of this address, the Accused Brima stated that he wanted to divide the troop and make attacks on both Karina and Kamabai, but that the other commanders suggested to him that keeping the troop together would result in fewer casualties. The Accused Brima agreed to this.3256 The Trial Chamber notes that this incident was a strategic discussion between commanders which could constitute planning of the attack on Karina and the crimes committed therein. However, witness TF1-334 does not name the commanders involved in this discussion. The Trial Chamber is not prepared to infer merely by virtue of the Accused Kamara’s position as deputy commander that he was one of them.

3252 Kamara Final Brief, paras. 198–200. 3253 Kamara Final Brief, para. 204. 3254 TF1-334, Transcript 23 May 2005, pp. 66–67. 3255 Factual Findings, Unlawful Killings, para. 886, supra. 3256 TF1-334, Transcript 23 May 2005, p. 57. judgments 1687

1918. No evidence was adduced that the Accused Kamara made a substantial contribution to the planning of any crimes under Counts 3 through 6, 10 through 11 and 14 in Bombali District. 1919. In view of the continuing nature of the crimes charged under Counts 9, 12 and 13 and the fact that they span across various Districts the Trial Chamber will discuss the Accused Kamara’s criminal responsibility for Counts 9, 12 and 13 below.3257 d. Instigating and otherwise Aiding and Abetting 1920. No evidence was adduced that the Accused Kamara prompted or influenced or gave practical assistance, encouragement or moral support to the perpetrators of the crimes committed in Bombali District. The Trial Chamber fĳinds that the Prosecution has not proved this mode of individual criminal responsibility against the Accused Kamara for the crimes committed in the Bombali District. (b) Responsibility of the Accused Kamara under Article 6(3) of the Statute (i) Submissions 1921. The Prosecution submits that the Accused Kamara bears superior responsibility for all crimes committed in Bombali District from 1 May 1998 until 30 November 1998 by virtue of the high level of authority possessed by him as second in command of the AFRC troops.3258 1922. The Kamara Defence submits that the evidence adduced does not prove that persons under the ‘command, authority or direction’ of the Accused Kamara participated in the crimes committed in Bombali District.3259 (ii) Findings a. Existence of a superior-subordinate relationship 1923. The Trial Chamber has found that the Accused Kamara was the deputy commander of the AFRC troops in Bombali District.3260 Evidence of a de jure position of authority does not per se sufffĳice to prove the existence of a superior- subordinate relationship, especially in the context of a non-traditional military organisation such as the AFRC troops.3261 The Trial Chamber must therefore look at the available evidence to determine whether the Accused Kamara, as deputy commander, was able to exercise efffective control over the AFRC troops in Bombali District.

3257 Responsibility of the Accused, Kamara, paras. 1970–1976, infra. 3258 Prosecution Final Brief, paras. 1513–1516. 3259 Kamara Final Brief, para. 204. 3260 Military Structure of the AFRC Fighting Force, paras. 465–468, supra. 3261 Applicable Law, para. 784; Military Structure of the AFRC Fighting Force, para. 580. 1688 part iv

1924. There is evidence that the Accused Kamara played a role at a senior level in military operations in Bombali District. Witness TF1-334 testifĳied that the Accused Kamara was Deputy Brigade Commander3262 and, at Karina, “[…] the commanders have been monitoring each and every soldier.”3263 The Accused Kamara was one of the senior AFRC commanders who was present at the meeting with SAJ Musa at Kurubonla at which the restructuring of the troops was discussed; however, no evidence was adduced as to his contribution.3264 Within the structure which was subsequently established by the Accused Brima, the Operations Commander and the Provost-Marshal were required to report to the Accused Kamara. At Rosos, the Accused Kamara was based at ‘headquarters,’ from where operations were planned and orders issued. Whilst there is no direct evidence on the Accused Kamara’s precise involvement.3265 Witness TF1-334 testifĳied that the Accused Kamara was one of the commanders who made decisions regarding the brigade; Q. Witness, I’m going to ask you to clarify. My question to you was what did you subsequently see the deputy chief in command do as second in command? Just focus on him specifĳically, please. A. He, the chief in command, the chief of stafff and the senior military supervisors were responsible for taking decisions in the brigade. Q. How do you know that? A. I myself was present whenever they want to take a decision in my presence. I was there whenever they were deciding on anything before they can send it out.3266 1925. The Trial Chamber has found that the Accused Kamara issued an order to the troops in Karina which was obeyed.3267 The Trial Chamber is satisfĳied on the evidence that the Accused Kamara participated in decision making. On the evidence the Trial Chamber is satisfĳied that the Accused Kamara exercised efffective control over the AFRC troops and was aware that the troops under his control committed crimes in Bombali District. 1926. The Trial Chamber fĳinds on the foregoing evidence that there was a formal command structure in the AFRC faction in Bombali District, that the Accused Kamara, in his capacity as Deputy Brigade Commander had and exercised efffective control over the troops under his command. 1927. Accordingly the Trial Chamber fĳinds on the evidence adduced that a superior-subordinate relationship existed between the Accused Kamara and the AFRC troops in Bombali District and that the Accused Kamara had actual or

3262 TF1-334 Transcript 23 May 2005, p. 95. 3263 TF1-334 Transcript 23 May 2005, p. 67. 3264 George Johnson, Transcript 15 September 2005, p. 47. 3265 George Johnson, Transcript 15 September 2005, p. 60. 3266 TF1-334, Transcript 20 May 2005, p. 95. 3267 Factual Findings, Unlawful Killings, para. 887, supra. judgments 1689 imputed knowledge of the crimes committed and failed to prevent or punish the perpetrators. 1928. The Trial Chamber accordingly fĳinds that the Prosecution established beyond reasonable doubt that the Accused Kamara is liable as a superior under Article 6(3) for crimes committed in Bombali District.

7. Freetown and the Western Area 1929. The Trial Chamber had found that AFRC troops engaged in unlawful killings of civilians as charged under Counts 3 through 53268 and inflicted sexual and physical violence on civilians as charged under Counts 6 through 9 and 10 respectively.3269 AFRC troops also abducted civilians and used them as forced labour and used children illegally recruited for military purposes in the attack on Freetown, as charged under Counts 13 and 12 respectively.3270 Finally, AFRC troops engaged in widespread looting, as charged under Count 14, terrorised the civilian population, as charged under Count 1, and committed collective punishments, as charged under Count 2.3271 (a) Responsibility of the Accused Kamara Under Article 6(1) of the Statute (i) Submissions 1930. In its Final Brief, the Prosecution submits that the Accused Kamara was present when the attack on Freetown was planned and that it can be inferred from his position as second in command that he was therefore actively involved in the planning phase. It further contends that Kamara was often present when the Accused Brima issued unlawful orders.3272 1931. The Prosecution further asserts that ‘Captain Blood’ carried out Kamara’s order to execute civilians, ordered the burning of houses during the retreat towards Waterloo and was present when the Accused Brima ordered other burnings in Freetown and the Western Area.3273 1932. Finally, the Prosecution argues that the Accused Kamara carried out killings in Freetown, participated in burnings during the retreat from Freetown, and committed, instigated or aided and abetted the commission of sexual violence in Freetown.3274

3268 Factual Findings, Unlawful Killings, para. 951, supra. 3269 Factual Findings, Rape, para. 1068, supra; Outrages on Personal Dignity, para. 1170, supra; Physical Violence, para. 1203, supra. 3270 Factual Findings, Enslavement, para. 1389, supra; Child Soldiers, para. 1278, supra. 3271 Factual Findings, Acts of Terror and Collective Punishment, para. 1612, supra. 3272 Indictment, para. 1624. 3273 Prosecution Final Brief, para. 1626, citing TF1-334, Transcript 14 June 2005, pp. 72–73. 3274 Prosecution Final Brief, paras. 1627–1628. 1690 part iv

1933. In its Final Brief, the Kamara Defence submits that the command structure during the Freetown invasion was not as it was described by Prosecution witnesses and that the Accused Kamara was not in Freetown at any time relevant to the Indictment. Therefore, he did not participate directly or indirectly in any of the crimes committed in Freetown.3275 (ii) Findings a. Committing i. Killings of civilians in the Fourah Bay Area 1934. The Trial Chamber has found that AFRC troops killed an unknown number of civilians at Fourah Bay in retaliation for an alleged murder of an AFRC soldier during the 1999 attack on Freetown.3276 Although the evidence shows that the Accused Kamara “partook” in the attack, it does not specify the way in which he participated in the incident. The Trial Chamber has found that this evidence does not establish that the Accused Kamara personally killed any civilians.3277 1935. The Trial Chamber will assess his responsibility with regard to the mode of aiding and abetting. ii. Killings of civilians at Wellington 1936. In early January 1999, on the way to Wellington, AFRC forces, including the Accused Kamara, shot at civilians.3278 In the absence of specifĳic evidence that civilians died as a result of Kamara’s actions the Trial Chamber is not satisfĳied that the Accused Kamara personally killed any civilians. b. Ordering, Planning and Instigating 1937. The Trial Chamber fĳinds no evidence that the Accused Kamara ordered, planned or instigated the commission of crimes in Freetown and the Western Area. The Trial Chamber fĳinds that the Prosecution has not proved these modes of individual criminal responsibility against the Accused Kamara for the crimes committed in the Western Area. 1938. In view of the continuing nature of these crimes charged under Counts 9, 12 and 13 and the fact that they span across various districts the Trial Chamber will discuss the Accused Kamara’s criminal responsibility for Counts 9, 12 and 13 below.3279

3275 Kamara Final Brief, paras. 210–219. 3276 TF1-334, Transcript 14 June 2005, pp. 66–67. 3277 Factual Findings, Unlawful Killings, paras. 919–926, supra. 3278 TF1-334, Transcript 14 June 2005, p. 98. 3279 Responsibility of the Accused, Kamara, paras. 1970–1976, infra. judgments 1691

c. Otherwise aiding and abetting i. Killings of civilians in Fourah Bay 1939. As stated above with regards to liability for commission of crimes in Fourah Bay, the Trial Chamber has found that there is evidence that the Accused Kamara “partook” in the attack on Fourah Bay in which civilians were killed and houses. While the precise meaning of “partook” is unclear, the Trial Chamber has found that Kamara was present during the commission of the crimes and either himself participated or failed to admonish the troops from committing the crimes. 1940. Given his authority as deputy commander of the troops, the Trial Chamber fĳinds Kamara’s presence at the scene gave moral support which had a substantial efffect on the perpetration of the crime. In addition, given the systematic pattern of crimes committed by the AFRC troops throughout the District, the Trial Chamber is satisfĳied that the Accused Kamara was aware of the substantial likelihood that his presence would assist the commission of the crime by the perpetrators. ii. “Operation Cut Hand” in Freetown 1941. The Accused Kamara led an mission to loot machetes from the World Food Program warehouse. He later explained to Tina Musa, the late SAJ Musa’s wife, that they had been used that day in “Operation Cut Hand,” meaning that his troops had used the machetes to amputate civilians.3280 The Trial Chamber is satisfĳied that the Accused, in providing weapons to the troops, with knowledge of how these weapons were to be used, the Accused Kamara gave practical assistance which had a substantial efffect on the perpetration of unlawful killings and physical violence in Freetown. It further fĳinds that the Accused Kamara was aware of the substantial likelihood that the use of the machetes would assist in the commission of these crimes. The Trial Chamber therefore fĳinds the Accused Kamara liable for aiding and abetting physical violence.

(b) Responsibility of the Accused Kamara Under Article 6(3) of the Statute (i) Submissions 1942. The Prosecution submits that the Accused Kamara bears superior responsibility for all crimes committed by his subordinates in Freetown between 6 January 1999 until around 28 January 1999.3281 1943. The Kamara Defence submits that there was an absence of efffective command and control over the fĳighters that attacked Freetown on 6 January 1999.3282

3280 TF1-153, Transcript 23 September 2005, p. 18. 3281 Prosecution Final Brief, paras. 1637–1640. 3282 Kamara Final Brief, para. 66. 1692 part iv

(ii) Findings a. Existence of a superior-subordinate relationship 1944. The Trial Chamber has found that the Accused Kamara was deputy commander of the AFRC troops during the invasion of Freetown and that a functioning chain of command and a planning and orders process was in place until the senior command moved from State House.3283 1945. The Trial Chamber notes that evidence was adduced on the activities of the Accused Kamara during the Freetown invasion. The Accused Kamara was present at the meeting chaired by Brima at Orugu Village on 5 January 1999 in which the invasion of Freetown was planned; however, no evidence was adduced as to Kamara’s contribution. The Accused Kamara was present at headquarters at State House immediately after it was captured on 6 January 1999.3284 There is also evidence that he attended a meeting of senior commanders when an attack on Wilberforce, where ECOMOG forces were based, was discussed; however, no evidence was adduced as to his contribution.3285 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, together with troops from 1st, 4th and 5th battalion, went to the prison and the door was blasted open. The Accused Kamara ordered that the released prisoners should move to State House; however, while some prisoners followed this order, others did not do so.3286 The Accused Kamara spoke with ‘Mosquito’ on the radio prior to the capture of State House.3287 1946. Given the limited resources of the AFRC, the Trial Chamber is satisfĳied that this evidence proves that the Accused Kamara exercised a degree of authority over the AFRC faction. 1947. 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.3288 After the loss of State House, the Accused Kamara gave an order to AFRC troops to burn houses.3289 1948. The Trial Chamber fĳinds the evidence adduced indicates the continual presence of the Accused Kamara during the invasion of Freetown up until State

3283 Role of the Accused, paras. 470–473, supra. 3284 TF1-334, Transcript 14 June 2005, pp. 3–4; George Johnson, Transcript 16 September 2005, p. 39. 3285 Gibril Massaquoi, Transcript 7 October 2005, pp. 119–120. 3286 George Johnson, Transcript 16 September 2005, pp. 27–29. 3287 TF1-184, Transcript 29 September 2005, p. 61. 3288 TF1-334, Transcript 14 June 2005, p. 47. 3289 TF1-184 Transcript 30 September 2005, p. 9. judgments 1693

House was lost. He was often in the company of other senior commanders, including the Accused Brima and the Accused Kanu, and gave a number of orders himself, he participated in decision making and did not distance himself from decisions made. The Trial Chamber is satisfĳied that the Accused’s had both a de jure position of authority during this period, and the de facto ability to efffectively control the AFRC troops under his command in Freetown. b. Knowledge and failure to prevent or punish 1949. The Accused Kamara had actual or imputed knowledge of the crimes committed and failed to prevent or punish the perpetrators. c. Conclusion 1950. The Trial Chamber fĳinds that the Prosecution has established beyond reasonable doubt that the Accused Kamara is liable as a superior under Article 6(3) for crimes committed in Freetown.

8. Port Loko District 1951. The Trial Chamber has found that AFRC/RUF troops unlawfully killed a number of civilians in Port Loko District as charged under Counts 4 through 5.3290 In addition, AFRC troops held persons in sexual slavery as charged under Count 9.3291 AFRC/RUF troops used abducted civilians for forced labour, as charged under Count 13. 1952. The Trial Chamber has found that the unlawful killings committed in Manaarma are attributable to troops working with the Accused Kamara.3292 The Trial Chamber has found that the unlawful killings committed in Nonkoba and the sexual crimes are not attributable beyond reasonable doubt to any particular group of fĳighters. (a) Responsibility of the Accused Kamara Under Article 6(1) of the Statute (i) Submissions 1953. In its Final Brief, the Prosecution asks the Trial Chamber to infer, based on the position of the Accused Kamara and his management of the troops, that he “designed and organised” the attacks on Port Loko District and that he is therefore liable for planning, instigating and/or aiding and abetting the crimes associated with the attacks.3293 The Prosecution further contends that the Accused Kamara ordered the commission of crimes in Port Loko District.3294

3290 Factual Findings, Unlawful Killings, para. 965, supra. 3291 Factual Findings, Outrages upon Personal Dignity, para. 1187, supra. 3292 Factual Findings, Unlawful Killings, paras. 955–957, supra. 3293 Prosecution Final Brief, paras. 1756–1758. 3294 Prosecution Final Brief, para. 1759. 1694 part iv

1954. Finally, the Prosecution submits that the Accused Kamara committed a killing at Mamamah and a rape at Gberibana.3295 The Trial Chamber notes that Mamamah and Gberibana were not locations specifĳied in the Indictment under Counts 3–5 and 6 respectively. 1955. In its Final Brief, the Kamara Defence submits that the Accused Kamara was not in Port Loko District at any time relevant to the Indictment and that the command structure in Port Loko District was not as described by Prosecution witnesses.3296 (ii) Findings 1955a. The Prosecution has not adduced any evidence that the Accused Kamara committed, ordered, planned, instigated or otherwise aided and abetted any of the crimes committed in the Port Loko District. The Trial Chamber fĳinds that the Prosecution has not proved any of these modes of individual criminal responsibility against the Accused Kamara for the crimes committed in Port Loko District. (b) Responsibility of the Accused Kamara Under Article 6(3) of the Statute (i) Submissions 1956. The Prosecution submits in its Final Brief that the Accused Kamara bears superior responsibility for crimes committed by the AFRC troops in Port Loko District between January and April 1999 by virtue of his position as their commander.3297 1957. The Kamara Defence makes no submissions on the superior responsibility of the Accused specifĳic to Port Loko District. The Kamara Defence relied on the testimony of four Defence witnesses to assert that the Accused Kamara was not commander in the West Side. (ii) Findings a. Existence of a superior-subordinate relationship 1958. The Trial Chamber has found that the Accused Kamara was the overall commander of AFRC troops in the area known as the ‘West Side’ in Port Loko District.3298 The Trial Chamber has further found that the AFRC faction in Port Loko District had a chain of command and a planning and orders process.3299 1959. The Trial Chamber is satisfĳied, on the basis of the evidence, that the Accused Kamara had efffective control over AFRC troops operating in the District.

3295 Prosecution Final Brief, para. 1760. 3296 Kamara Final Brief, paras. 224–234. 3297 Prosecution Final Brief, paras. 1753–1754, 1761–1764. 3298 Role of Accused, para. 500, supra. 3299 Military Structure of AFRC Fighting Force, para. 635, supra. judgments 1695

As examined above, Kamara was present in the District throughout the relevant period; established the command structure of the AFRC in the ‘West Side’; gave orders to captains and troops which were carried out; appointed and promoted commanders; enforced discipline within the ranks and was in a position of de jure authority to other high level commanders including the Operations Commander3300 who reported to him. 1960. The Trial Chamber is satisfĳied on the basis of the consistent evidence of both Prosecution and Defence witnesses, including the evidence of George Johnson himself, that George Johnson held a position of command and exercised active authority during the relevant period. However, evidence which suggests the presence and authority of other commanders in the District during the relevant period, does not, in and of itself, create a reasonable doubt of the ability of the Accused Kamara to exercise efffective control over subordinates. 1961. The Trial Chamber recalls its fĳindings that unlawful killings were committed in Nonkoba, Tendekum and Manaarma.3301 The Trial Chamber is satisfĳied on the basis of the following evidence that only the unlawful killings in Maararma are attributable to AFRC troops under the command of the Accused Kamara. 1962. The Trial Chamber will now consider the available evidence on the role of Kamara in relation to the attack on Port Loko and Manaarma in order to determine whether the Accused Kamara was in efffective control of Junior Lion and the troops underneath him. 1963. Witness George Johnson testifĳied that some time prior to 27 April 1999, a meeting of commanders was held, attended by himself, the Accused Kamara, the Operations Director, Tito and the battalion commanders. At this meeting the commanders planned an attack on Port Loko to capture arms and ammunition from the Malians.3302 Witness TF1-334 also testifĳied that witness George Johnson was the commander that led the operation to Port Loko. He testifĳied that ‘Bazzy’ ordered Junior Lion to lead the attack and also ordered that troops were to burn down any village and kill civilians en route.3303 1964. Witness George Johnson testifĳied that after he led the operation on Port Loko which included the attacks on Manaarma, he established communication with ‘Bazzy’ who sent ‘Tito’ with some civilians to collect the arms and ammunition.3304 On his return to camp, he reported to the Accused Kamara and

3300 Name admitted under seal: exhibit P-12. 3301 Factual Findings, Unlawful Killings, paras. 955–957, supra. 3302 George Johnson, Transcript 16 September 2005, pp. 72–74, 79. 3303 TF1-334, Transcript 15 June 2005, p. 35. 3304 George Johnson, Transcript 16 September 2005, p. 78. 1696 part iv informed him of the alleged conduct of Cyborg. However, the witness stated that Kamara was so happy about the success of the operation that he neglected to take any action.3305 Rather, the Accused Kamara sent a ‘signal message’ to Sam Bockarie in Kailahun recommending the witness for promotion. Bockarie endorsed the recommendation and the witness became a colonel.3306 Witness George Johnson testifĳied that subsequent operations to obtain arms and ammunition were planned by him and carried out at Newton, Mile 38 and Gberi Junction before the signing of the peace process.3307 He does not refer to Manaarma in his evidence. 1965. Both witnesses TF1-334 and George Johnson testifĳied that after the attack, ‘Bazzy’ contacted Mosquito to inform him of its success and the capture of the Malian soldiers.3308 The Trial Chamber notes that witness Gibril Massaquoi testi- fĳied that Bazzy sent a message to Gullit regarding the attack on Port Loko.3309 Neither witnesses George Johnson nor TF1-334 mention this. b. Actual or Imputed Knowledge 1966. Prosecution Witness George Johnson testifĳied that en route to Port Loko, he sent an advance troop to secure a village ahead. Upon arrival there, he observed a number of dead civilians and ‘Sherifff’ complained to him that ‘Cyborg’ had amputated and killed civilians in the villages.3310 The Trial Chamber has found that this village was Manaarma. 1967. George Johnson further testifĳied that on his return to camp after the successful operation to Port Loko, he reported to the Accused Kamara, informing him of the conduct of ‘Cyborg.’ The Trial Chamber is accordingly satisfĳied that the Accused Kamara had actual knowledge of the commission of crimes in Manaarma by his subordinates. c. Failure to prevent or punish 1968. George Johnson stated that the Accused Kamara did not take any disciplinary action in response to his report regarding the killings in Manaarma. Rather, the Accused Kamara radioed Sam Bockarie in Kailahun and recommended that the witness be promoted to Colonel, and Bockarie subsequently endorsed this promotion. George Johnson testifĳied that the Accused Kamara did not take any action.3311 Trial Chamber is satisfĳied that the Accused Kamara failed to punish his subordinates for committing unlawful killings in Port Loko District.

3305 George Johnson, Transcript 16 September 2005, pp. 76, 78–79. 3306 George Johnson, Transcript 16 September 2005, p. 79. 3307 George Johnson, Transcript 16 September 2005, pp. 79–80. 3308 TF1-334, Transcript 15 June 2005, pp. 36–37. 3309 Gibril Massaquoi, Transcript 9 October 2005, pp. 87–102. 3310 George Johnson, Transcript 16 September 2005, pp. 75–76. 3311 George Johnson, Transcript 16 September 2005, pp. 78–79. judgments 1697

d. Conclusion 1969. The Trial Chamber fĳinds that it has been established beyond reasonable doubt that the Accused Kamara is liable as a superior under Article 6(3) for crimes committed in Manaarma in Port Loko District.

9. Responsibility of the Accused Kamara for Crimes of Enslavement (a) Responsibility Under Article 6(1) of the Statute 1970. The Trial Chamber has found that civilians were subjected to outrages upon personal dignity as charged under Count 9; that children under the age of 15 were conscripted into the AFRC forces and/or used to participate in active hostilities as charged under Count 12; and that civilians were enslaved as charged under Count 13. 1971. As with the Accused Brima, the Trial Chamber will examine the evidence in relation to the responsibility of the Accused Kamara for each of the enslavement crimes as a whole. The Trial Chamber recalls its fĳinding that the only reasonable inference available from the systemic commission of these crimes on a large scale is that these crimes were planned.3312 1972. While the Trial Chamber has found that the Accused Kamara was overall commander in Kono District after the departure of Johnny Paul Koroma, the Prosecution has not established that he was involved or substantially contributed in this position to the enslavement crimes in that district.3313 However the Trial Chamber fĳinds that, in his position as overall commander, he was aware that civilians were abducted and subjected to enslavement in that district. (b) Responsibility Under Article 6(3) of the Statute (i) Kono District 1973. The Trial Chamber has found that in Kono District an unknown number of civilians were abducted and used as forced labour; civilians were subjected to sexual slavery; and children under the age of 15 were conscripted into armed groups or used to participate in active hostilities. The Trial Chamber recalls its fĳinding that the Accused Kamara had efffective control over the AFRC forces in Kono District led by known SLA commanders ‘Savage,’ SLA Operation Commander and witness TF1-334 while Brima was in detention in Kailahun. The Trial Chamber must therefore determine whether the enslavement crimes proven in Kono District are attributable to AFRC forces under the command of the Accused Kamara.

3312 Responsibility of the Accused, Brima, para. 1823, supra. 3313 Role of the Accused, para. 461, supra. 1698 part iv

1974. The Trial Chamber has found, on the evidence of witness TF1-334, that from early March 1998, the Operations Commander and other soldiers went to villages in Kono District and captured civilians who were then used as forced labour or subjected to sexual slavery. Children were also captured who were conscripted into the AFRC force.3314 While the Trial Chamber is satisfĳied that the Operations Commander was under the efffective control of the Accused Kamara after the departure of Johnny Paul Koroma from Kono District. The evidence adduced does not establish beyond reasonable doubt whether these crimes were committed prior to the departure of Johnny Paul Koroma or subsequently when the Accused Kamara had efffective command over the AFRC commanders who were among the perpetrators. 1975. The Trial Chamber has found that Witnesses DAB-098, TF1-072 and TF1- 216, along with an unknown number of other civilians, were captured in approximately March 1998 in Kono District and enslaved in Tombodu. The Trial Chamber is satisfĳied, from the testimony of these witnesses, that the perpetrators of these crimes were led by AFRC commanders ‘Savage’ and ‘Stafff Alhaji,’ who were under the efffective control of the Accused Kamara. 1976. The Trial Chamber accordingly fĳinds the Accused Kamara liable as a superior under Article 6(3) for the crime of enslavement in Kono District. (ii) Port Loko District 1977. The Trial Chamber has made no fĳindings on Counts 12 and 13. The Trial Chamber notes the evidence of witnesses TF1-282 and TF1-085 who were subjected to sexual slavery in Port Loko District.3315 However, the evidence adduced does not establish beyond reasonable doubt that the perpetrators of these crimes were troops under the command of the Accused Kamara.

D. The Accused Kanu 1. Allegations in the Indictment 1978. The Indictment alleges: At all times relevant to this Indictment, Santigie Borbor Kanu was a senior member of the AFRC, Junta and AFRC/ RUF forces. Santigie Borbor Kanu was a member of the group of 17 soldiers which staged the coup and ousted the government of President Kabbah. In addition, Santigie Borbor Kanu was a member of Junta governing body, the AFRC Supreme Council. Between mid February 1998 and 30 April 1998, Santigie Borbor Kanu was a senior commander of the AFRC/RUF forces in Kono District. In addition, Santigie Borbor

3314 Name admitted under seal: exhibit P-12. See Factual Findings, Child Soldiers, para. 1278, supra. 3315 Factual Findings, Outrages on Personal Dignity, paras. 1087–1099, 1174–1184, supra. judgments 1699

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. Santigie Borbor Kanu, along with Alex Tamba Brima and Brima Bazzy Kamara, was also one of three commanders of AFRC/RUF forces during the attack on Freetown on 6 January 1999. […] In [his] positions referred to above, […] Santigie Borbor Kanu, individually or in concert with [the Accused Brima and the Accused Kamara], Johnny Paul Koroma aka JPK, Foday Saybana Sankoh, Sam Bockarie aka Mosquito aka Maskita, Issa Hassan Sesay aka Issa Sesay, Morris Kallon aka Belai Karim, Augustine Gbao aka Augustine Bao and/or other superiors in the AFRC, Junta and AFRC/RUF forces, exercised authority, command and control over all subordinate members of the AFRC, Junta and AFRC/RUF forces. […] […] Santigie Borbor Kanu, by [his] acts or omissions, [is] 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 [he] planned, instigated, ordered, committed or in whose planning, preparation or execution [he] otherwise aided and abetted, or which crimes were within a joint criminal enterprise in which [he] participated or were a reasonably foreseeable consequence of the joint criminal enterprise in which [he] participated. In addition, or alternatively, pursuant to Article 6.3. of the Statute, […] Santigie Borbor Kanu, while holding positions of superior responsibility and exercising efffective control over [his] subordinates, [is] individually criminally responsible for the crimes referred to in Articles 2, 3 and 4 of the Statute. [The] Accused is responsible for the criminal acts of his subordinates in that he knew or had reason to know that the subordinate was about to commit such acts or had done so and […] failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof.3316 1979. The Trial Chamber notes that the Indictment alleges additionally, in relation to the Counts set out therein, that “by their acts or omissions in relation to these events, Alex Tamba Brima, Brima Bazzy Kamara and Santigie Borbor Kanu, pursuant to Article 6(1) and, or alternatively, Article 6(3) are individually criminally responsible for the crimes alleged […].”3317 1980. Where there have been submissions by the Parties specifĳic to each Accused, District and mode of liability, they have been considered as they arise in the fĳind- ings below.

3316 Indictment, paras. 28–30, 31, 35–36. 3317 Indictment paras. 41, 50, 57, 64, 65, 73, 79. 1700 part iv

1981. In view of the continuing nature of the crimes charged under Counts 9, 12 and 13 and the fact that such crimes span various districts, the Trial Chamber has dealt with these counts separately below.

2. Bo, Kenema and Kailahun Districts 1982. In its factual fĳindings, the Trial Chamber found that an unknown number of civilians were unlawfully killed by AFRC/RUF forces in Bo District in June 1997, as charged under Counts 4 through 5. Civilians were also terrorised and subjected to collective punishment, as charged under Counts 1 and 2.3318 1983. The Trial Chamber also found that AFRC/RUF forces committed a number of crimes in Kenema District in this period. Civilians were unlawfully killed, as charged under Counts 4 and 5,3319 and physical violence was inflicted on an unknown number of civilians as charged under Count 10.3320 Children were illegally recruited and used for military purposes, as charged under Count 12.3321 An unknown number of civilians were abducted and used as forced labour at Cyborg Pit in Tongo Field, as charged under Count 13.3322 Finally, civilians were terrorised and subjected to collective punishment, as charged under Counts 1 and 2. 1984. The Trial Chamber further found that RUF troops abducted civilians and used them as forced labour in Kailahun District during the Junta period, as charged under Count 13.3323 (a) Responsibility of the Accused Kanu Under Article 6(1) of the Statute (i) Submissions 1985. In its Final Brief, the Prosecution argues that given his position in the Government, the Accused Kanu was aware of the AFRC Government policies which included the use of forced labour in Bo and Kenema Districts.3324 It submits that the Accused Kanu is therefore liable for planning, instigating or otherwise aiding and abetting the crime of enslavement in Kenema and Kono, as well as killings and other crimes committed during the AFRC government period.3325 1986. In its Final Brief, the Kanu Defence submits that the perpetrators of the crimes in Bo and Kenema Districts were soldiers who were present in the District before the AFRC coup and who were under the command of their local

3318 Factual Findings, Acts of Terror and Collective Punishment, para. 826, supra. 3319 Factual Findings, Unlawful Killings, para. 840, supra. 3320 Factual Findings, Physical Violence, para. 1197, supra. 3321 Factual Findings, Child Soldiers, paras. 1276–1278, supra. 3322 Factual Findings, Enslavement, para. 1309, supra. 3323 Factual Findings, Enslavement, para. 1374. 3324 Prosecution Final Brief, para. 516. 3325 Prosecution Final Brief, para. 520. judgments 1701 commanders during the Indictment period.3326 The Defence submits that the SLA brigades based in Bo and Kenema Districts operated independently from the AFRC Government seated in Freetown.3327 (ii) Findings a. Committing and Ordering 1987. The Prosecution has not adduced any evidence that the Accused Kanu committed or ordered any of the crimes that occurred in Bo, Kenema and Kailahun Districts. The Trial Chamber accordingly fĳinds that the Prosecution has not proved either of these modes of individual criminal responsibility against the Accused Kanu for the crimes that occurred in Bo, Kenema and Kailahun Districts. b. Planning 1988. The Trial Chamber recalls its fĳinding that the Accused Kanu participated in high-level coordination meetings of the AFRC government, but that no evidence was adduced that the crimes committed in Bo, Kenema and Kailahun Districts were planned at these meetings.3328 1989. The Prosecution has not adduced any evidence that the Accused Kanu made a substantial contribution to the planning of the crimes committed in Bo, Kenema and Kailahun Districts. The Trial Chamber fĳinds that the Prosecution has not proved this mode of individual criminal responsibility against the Accused Kanu for the crimes committed in Bo, Kenema and Kailahun Districts.

c. Instigating 1990. The Prosecution has not adduced any evidence that the Accused Kanu prompted or influenced the perpetrators of the crimes committed in Bo, Kenema and Kailahun Districts. The Trial Chamber fĳinds that the Prosecution has not proved this mode of individual criminal responsibility against the Accused Kanu for the crimes committed in Bo, Kenema and Kailahun Districts. d. Otherwise aiding and abetting 1991. The Prosecution has not adduced any evidence that the Accused Kanu gave practical assistance, encouragement or moral support which had a substantial efffect on the perpetration of crimes in Bo, Kenema and Kailahun Districts. The Trial Chamber fĳinds that the Prosecution has not proved this mode of individual criminal responsibility against the Accused Kanu for crimes committed in Bo, Kenema and Kailahun Districts.

3326 Kanu Final Brief, paras. 369–371. 3327 Kanu Final Brief, para. 372. 3328 Role of the Accused, Kanu, para. 511, supra. 1702 part iv

(b) Responsibility of the Accused Kanu Under Article 6(3) of the Statute (i) Submissions 1992. The Prosecution submits in its Final Brief that the Accused Kanu bears superior responsibility for crimes committed during the AFRC Government period by virtue of his position as a member of the Supreme Council.3329 The Prosecution also submits that the Accused Kanu was “only beneath Johnny Paul Koroma, SAJ Musa and the 3 PLOs in the Junta hierarchy.”3330 1993. The Kanu Defence submits that superior responsibility cannot be based on the Accused Kanu’s mere participation in or membership of the AFRC, as this would be “tantamount to strict liability on the basis of organizational responsibility.”3331 (ii) Findings 1994. The Trial Chamber reiterates its earlier observations that asserting de jure seniority does not sufffĳice to prove liability under Article 6(3).3332 The Trial Chamber emphasises that in evaluating the evidence, the fĳirst element of the test for superior responsibility is whether the Accused Kanu was personally able to exercise efffective control over subordinates. Membership of the Supreme Council alone does not satisfy the evidentiary burden on the Prosecution. 1995. Little evidence was adduced with respect to the role of the Accused Kanu during the AFRC Government period. It has been established that the Accused Kanu was a member of the Supreme Council and attended Council meetings.3333 There is no evidence that he possessed any particular responsibility or performed any individual functions at such meetings. The Trial Chamber has found that it was not established whether the Accused Kanu made any real practical contributions to the policies or running of the AFRC government.3334 Beyond his position in the AFRC Government, there is no evidence which links the Accused Kanu as a superior to crimes perpetrated by the troops in Bo, Kenema and Kailahun Districts. 1996. The Trial Chamber therefore fĳinds that the Prosecution has not proved beyond reasonable doubt that a superior-subordinate relationship existed between the Accused Kanu and these troops. In the absence of this fĳirst element of superior responsibility, it is unnecessary to consider whether the Accused Kanu

3329 Prosecution Final Brief, paras. 521–524. 3330 Prosecution Final Brief, para. 515. 3331 Kanu Final Brief, para. 190. See generally paras. 186–193. 3332 Responsibility of the Accused, para. 1923, supra. 3333 Role of Accused, paras. 509–510, supra. 3334 Role of the Accused, para. 511, supra. judgments 1703 had actual or imputed knowledge of the crimes committed and failed to prevent or punish the perpetrators thereof.

3. Kono District 1997. The Trial Chamber found that in the period February through June 1998, AFRC/RUF troops in Kono District unlawfully killed civilians, as charged under Counts 3 through 5,3335 and inflicted sexual and physical violence on civilians as charged under Counts 6 through 9 and 10 respectively.3336 AFRC/RUF troops also abducted civilians and used them as forced labour, as charged under Count 13,3337 and used illegally recruited children for military purposes, as charged under Count 12.3338 Finally, AFRC/RUF troops engaged in widespread looting, as charged under Count 14, terrorised the civilian population, as charged under Count 1, and committed collective punishments, as charged under Count 2.3339 (a) Responsibility of the Accused Kanu Under Article 6(1) of the Statute (i) Submissions 1998. In its Final Brief, the Prosecution asserts that the “three Accused are individually criminally responsible under the theory of joint criminal enterprise” and does not refer to other modes of liability.3340 The Prosecution then submits that only Kamara bears liability under Articles 6(1) and (3) of the Statute.3341 Furthermore, the Prosecution submits in its Closing Arguments that for Kono, during the crimes committed in the Indictment period after the intervention, 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 the theory of a JCE.3342 1999. In its Final Brief, the Kanu Defence submits that the Prosecution failed to provide evidence that the Accused Kanu was present in Kono District for “more than a few days” and that it failed to show that Kanu had any authority during the Indictment period.3343 (ii) Findings 2000. The Prosecution has not adduced any evidence that the Accused Kanu committed, ordered, planned, instigated or otherwise aided and abetted any of

3335 Factual Findings, Unlawful Killings, para. 857, supra. 3336 Factual Findings, Sexual Violence, para. 1213, supra. 3337 Factual Findings, Physical Violence, para. 1333, supra. 3338 Factual Findings, Child Soldiers, para. 1278, supra. 3339 Factual Findings, Pillage, paras. 1525, 1527, supra. 3340 Prosecution Final Brief, para. 1279. 3341 Prosecution Final Brief, para. 1279. 3342 Transcript 7 December 2006, p. 34–35. 3343 Kanu Final Brief, paras. 386–391. 1704 part iv the crimes committed in Kono District. The Trial Chamber fĳinds that the Prosecution has not proved any of these modes of individual criminal responsibility against the Accused Kanu for the crimes committed in Kono District. (b) Responsibility of the Accused Kanu Under Article 6(3) of the Statute (i) Submissions 2001. The Prosecution makes no submission in its Final Brief that the Accused Kanu bears superior responsibility for crimes committed in Kono District. The Prosecution case is that the Accused Kanu was shuttling between SAJ Musa in Koinadugu and the Accused Kamara in Kono in order to keep SAJ Musa informed of the developments on the ground in Kono.3344 2002. The Kanu Defence cites witness TF1-033 to demonstrate that Kanu was only one of the commanders present in Tombodu in 1998, the others being Hassan Papa Bangura, Franklyn Woyo Conteh alias ‘Woyo,’ ‘Savage,’ Ibrahim Bazzy Kamara, Ibrahim Sesay alias ‘Biyoh,’ and Abdul Sesay.3345 The Kanu Defence asserts that thus, the “evidence is insufffĳicient in holding the Third Accused responsible for superior responsibility for the crime of collective punishment, as his mere presence as a commander, one of many, is mentioned.”3346 (ii) Findings 2003. The Trial Chamber has already found that the evidence regarding the role of the Accused Kanu in Kono District is inconclusive.3347 The evidence adduced is insufffĳicient to establish that the Accused Kanu occupied a particular position in the AFRC command structure established by the Accused Kamara or that he had any troops under his efffective control. 2004. The Trial Chamber accordingly fĳinds the Prosecution has not established that the Accused Kanu was in a superior-subordinate relationship with the perpetrators of the crimes committed in Kono District. In the absence of this fĳirst element of superior responsibility, it is unnecessary to consider whether the Accused Kanu had actual or imputed knowledge of the crimes committed and failed to prevent or punish the perpetrators thereof. 2005. The Trial Chamber fĳinds that the Prosecution has not established beyond reasonable doubt that the Accused Kanu is liable as a superior under Article 6(3) for crimes committed in Kono District.

3344 TF1-334, Transcript 18 May 2005, pp. 19–20, Transcript 16 June 2005, p. 37. 3345 Kanu Final Brief, para. 406; TF1-033, Transcript 11 July 2005, pp. 11–12. 3346 Kanu Final Brief, para. 408. 3347 Role of Accused, para. 515, supra. judgments 1705

4. Kailahun District 2006. The Trial Chamber found that an unknown number of civilians were unlawfully killed by RUF forces in or around February 1998, as charged under Count 5,3348 and that RUF troops or troops not established beyond a reasonable doubt to be members of the AFRC abducted civilians and used them as forced labour in Kailahun District in the period following 14 February 1998.3349 (a) Responsibility of the Accused Kanu Under Article 6(1) of the Statute (i) Submissions 2007. In its Final Brief, the Prosecution alleges that the Accused Kanu was liable for crimes committed in Kailahun as a principal in a joint criminal enterprise and does not refer to any other form of liability.3350 2008. The Kanu Defence submits that Kailahun District was under the exclusive control of the RUF and that the Accused Kanu was never present there.3351 (ii) Findings 2009. The Prosecution has not adduced any evidence that the Accused Kanu committed, ordered, planned, instigated, or otherwise aided and abetted any of the crimes committed in the Kailahun District. The Trial Chamber fĳinds that the Prosecution has not proved any of these modes of individual criminal responsibility against the Accused Kanu for the crimes committed in the Kailahun District. (b) Responsibility of the Accused Kanu Under Article 6(3) of the Statute (i) Submissions 2010. The Prosecution makes no submission in its Final Brief that the Accused Kanu has superior responsibility for crimes committed in Kailahun District in this period. The Kanu Defence does not make submissions specifĳic to Kailahun District in its Final Brief arguments on the superior responsibility of the Accused Kanu. (ii) Findings 2011. The Trial Chamber recalls its fĳindings that the only proven perpetrators of crimes committed in Kailahun District during this period were members of the RUF. The Trial Chamber also recalls its fĳinding that the AFRC and the RUF were not working together in Kailahun during this period.3352

3348 Factual Findings, Unlawful Killings, para. 864, supra. 3349 Factual Findings, Enslavement, para. 1394, supra. 3350 Prosecution Final Brief, para. 1406. 3351 Kanu Final Brief, paras. 376–384. 3352 Context of the Alleged Crimes, paras. 187–188, supra. 1706 part iv

2012. The Trial Chamber found that there is conflicting evidence regarding the activities of the Accused Kanu in the period February-May 1998, when he joined the group of SLA troops led by the Accused Brima in Mansofĳinia. The Trial Chamber is not satisfĳied on the evidence adduced that the Accused Kanu exercised efffective control over any members of the RUF in Kailahun District after February 1998. 2013. In the absence of this fĳirst element of superior responsibility, it is not necessary to consider whether there is any evidence that the Accused Kanu had actual or imputed knowledge of the crimes committed and failed to prevent or punish the perpetrators. 2014. The Trial Chamber accordingly fĳinds that the Accused Kanu is not liable under Article 6(3) for crimes committed in Kailahun District.

5. Koinadugu District 2015. The Trial Chamber found that AFRC/RUF forces unlawfully killed or inflicted sexual or physical violence on an unknown number of civilians in Koinadugu District in the period February through September 1998, as charged under Counts 4 through 5, 6 through 9 and 10 respectively.3353 In addition, an unknown number of civilians were abducted and used as forced labour, as charged under Count 13.3354 Children were used for military purposes, as charged under Count 12.3355 Finally, AFRC/RUF forces also engaged in looting of civilian homes, as charged in Count 14.3356 (a) Responsibility of the Accused Kanu Under Article 6(1) of the Statute (i) Submissions 2016. In its Final Brief, the Prosecution alleges that the three Accused are liable for planning and instigating or otherwise aiding and abetting the crimes committed in Koinadugu District. It argues that the crimes followed a consistent pattern.3357 2017. In its Final Brief, the Kanu Defence submits that several AFRC groups moved from Koinadugu District to Bombali District, and that the Accused Kanu was not part of the group that included Prosecution Witness George Johnson.3358

3353 Factual Findings, Unlawful Killings, para. 879, supra; Sexual Violence, paras. 1026, 1133, supra; Physical Violence, para. 1218, supra. 3354 Factual Findings, Enslavement, para. 1350, supra. 3355 Factual Findings, Child Soldiers, para. 1277, supra. 3356 Factual Findings, Pillage, para. 1409, supra. 3357 Prosecution Final Brief, paras. 1412–1413. 3358 Kanu Final Brief, paras. 392–395. judgments 1707

(ii) Findings 2018. The Prosecution has not adduced any evidence that the Accused Kanu committed, ordered, planned, instigated, or otherwise aided and abetted any of the crimes that occurred in Koinadugu District. The Trial Chamber fĳinds that the Prosecution has not proved any of these modes of individual criminal responsibility against the Accused Kanu for the crimes committed in the Koinadugu District. (b) Responsibility of the Accused Kanu Under Article 6(3) of the Statute (i) Submissions 2019. The Prosecution submits that the Accused Kanu has superior responsibility for all crimes committed in the attack on Yifĳin.3359 2020. The Kanu Defence makes no submissions on the superior responsibility of the Accused Kanu specifĳically in relation to crimes committed in Koinadugu District. (ii) Findings 2021. The Trial Chamber notes that the Prosecution did not specify Yifĳin as a location in the Indictment under Counts 3 through 6, 8 through 11, and 14 and therefore, no fĳindings have been made in this regard. No evidence has been adduced that the crimes committed under Counts 9, 12 or 13 in Koinadugu District are attributable to the Accused Kanu.3360 2022. The Trial Chamber has found that the crimes under Counts 3 to 6, 8 to 11, and 14 committed in other locations in Koinadugu District were perpetrated by AFRC/RUF forces associated with groups led by SAJ Musa and ‘Superman.’ The evidence on the activities of the Accused Kanu between February and late April or early May 1998 is inconclusive.3361 The Accused Kanu was then sent by SAJ Musa to accompany the Accused Brima’s group from Mansofĳinia to Rosos.3362 The Prosecution has not submitted, nor is there evidence to the efffect that, the Accused Kanu was in a command position in relation to the troops of SAJ Musa or Superman, either between February and late April or early May, or while he was with the Accused Brima’s group thereafter. 2023. In the absence of the existence of a superior-subordinate relationship between the Accused Kanu and the perpetrators of the crimes in Koinadugu District, it is unnecessary to consider whether there is any evidence that the Accused Kanu had actual or imputed knowledge of the crimes committed and failed to prevent or punish the perpetrators.

3359 Prosecution Final Brief, paras. 1414–1416. 3360 Factual Findings, paras. 1126, 1350. 3361 Role of Accused, para. 522, supra. 3362 Role of Accused, para. 518, supra. 1708 part iv

2024. The Trial Chamber accordingly fĳinds that the Prosecution has not established beyond reasonable doubt that the Accused Kanu is liable as a superior under Article 6(3) for crimes committed by AFRC/RUF troops in Koinadugu District.

6. Bombali District 2025. The Trial Chamber found that AFRC troops in Bombali District engaged in unlawful killings of civilians as charged under Counts 3 through 53363 and inflicted sexual and physical violence on civilians as charged under Counts 6 to 9 and 10 and 11 respectively.3364 AFRC troops also abducted civilians and used them as forced labour and used children illegally recruited for military purposes, as charged under Counts 13 and 12 respectively.3365 Finally, AFRC troops terrorised the civilian population, as charged under Count 1, and committed collective punishments, as charged under Count 2.3366 (a) Responsibility of the Accused Kanu Under Article 6(1) of the Statute (i) Submissions 2026. In its Final Brief, the Prosecution contends that the Accused Kanu was present when the order was given to burn Karina and kill its inhabitants and that he assisted in the planning phase. The Prosecution submits that Kanu also helped to lead the attack on Bornoya where numerous civilians were killed.3367 The Prosecution further argues that it is inferable from the position of the Accused Kanu, coupled with the systematic nature of the crimes committed in Bombali District, that he prompted or encouraged these acts. Additionally, he either intended such acts or was aware of the substantial likelihood that such crimes would be committed.3368 Finally, the Prosecution asserts that at Camp Rosos, the Accused Kanu was in charge of training child soldiers and was in total control of the women at the camp.3369 2027. In its Final Brief, the Kanu Defence submits that several AFRC groups moved from Koinadugu District to Bombali District, and that the Accused Kanu was not part of the group that included Prosecution Witness George Johnson.3370 The Kanu Defence further contends that the Prosecution has led no evidence regarding the involvement of the Accused Kanu in the illegal recruitment of child

3363 Factual Findings, Unlawful Killings, para. 897, supra. 3364 Factual Findings, Physical Violence, para. 1224, supra. 3365 Factual Findings, Sexual Violence, paras. 1253–1254, supra. 3366 Factual Findings, Pillage, paras. 1568, 1571, supra. 3367 Prosecution Final Brief, para. 1511. 3368 Prosecution Final Brief, para. 1512. 3369 Prosecution Final Brief, para. 1512. 3370 Kanu Defence Final Brief, paras. 392–395. judgments 1709 soldiers and that the evidence regarding his involvement in training these children for military purposes is vague.3371 (ii) Findings a. Committing/Ordering 2028. The Prosecution has not adduced any evidence that the Accused Kanu committed or ordered any of the crimes that occurred in Bombali District. The Trial Chamber fĳinds that the Prosecution has not proved either of these modes of individual criminal responsibility against the Accused Kanu for the crimes committed in the Bombali District. b. Planning 2029. The Prosecution has not adduced any evidence that the Accused Kanu planned any crimes under Counts 3 to 6, 10 to 11 and 14 in Bombali District. The Trial Chamber fĳinds that the Prosecution has not proved this mode of individual criminal responsibility against the Accused Kanu for the crimes committed under those counts. The Accused Kanu’s criminal responsibility for Counts 9, 12 and 13, which are crimes of a continuing nature spanning various districts, will be discussed below.3372 c. Instigating 2030. The Prosecution has not adduced any evidence that the Accused Kanu prompted or influenced the perpetrators of the crimes committed in Bombali District. The Trial Chamber fĳinds that the Prosecution has not proved this mode of individual criminal responsibility against the Accused Kanu for the crimes committed in the Bombali District. d. Otherwise aiding and abetting 2031. The Prosecution has not adduced any evidence that the Accused Kanu gave practical assistance, encouragement or moral support which had a substantial efffect on the perpetration of crimes in Bombali District. The Trial Chamber fĳinds that the Prosecution has not proved this mode of individual criminal responsibility against the Accused Kanu for the crimes committed in Bombali District. (b) Responsibility of the Accused Kanu Under Article 6(3) of the Statute (i) Submissions 2032. The Prosecution submits that the Accused Kanu bears superior responsibility for all crimes committed in Bombali District from 1 May 1998 until 30 November 1998 by virtue of the high level of authority he possessed as third in

3371 Kanu Defence Final Brief, paras. 427–434. 3372 Responsibility of the Accused, Kanu, paras. 2091–2095, infra. 1710 part iv command.3373 The Prosecution further submits that the Accused Kanu was in charge of training child soldiers and was in total control of women at the camp.3374 2033. The submissions of the Kanu Defence were comparatively detailed and will be discussed further as they arise in the fĳindings below. However, the Kanu Defence’s position can be summarised as follows. First, it argues that the Prosecution evidence conflicts on whether the Accused Kanu was Chief of Stafff or G5 and that he cannot have occupied both positions. The Kanu Defence further submits that neither position entails command authority, since the Prosecution has not established that the Accused Kanu ever functioned as an operational commander, which it defĳines as “a military leader in command and control of a fĳighting unit.”3375 The Kanu Defence then accepts that the Accused Kanu was responsible for civilians but argues that in this role he protected them and this does not equate to command responsibility for operations conducted by the SLAs.3376 (ii) Findings a. Existence of a superior-subordinate relationship 2034. The Trial Chamber found that the AFRC faction had a functioning chain of command, planning and orders process and disciplinary system in Bombali District.3377 The Trial Chamber found that the Accused Kanu was Chief of Stafff, commander in charge of civilians and commander in charge of military training. 2035. The Trial Chamber fĳinds the evidence that the Accused Kanu was Chief of Stafff does not of itself permit conclusions to be drawn as to his ability to control his subordinates. Prosecution Military Expert Colonel Iron testifĳied that in traditional military organisations, the Chief of Stafff is the person that heads the stafff of the commander and is essentially responsible for implementing the commander’s decisions.3378 Colonel Iron stated that from the evidence that he was given, the Accused Kanu appeared to have performed the same function for the Accused Brima.3379 2036. The Trial Chamber does not fĳind this conclusion particularly helpful, as this description of the Accused Kanu’s role does not indicate whether he had efffective control over any of the AFRC troops that committed crimes in Bombali District. However, there is other evidence which goes to prove that the Accused

3373 Prosecution Final Brief, para. 1513. 3374 Prosecution Final Brief, para. 1512. 3375 Kanu Final Brief, para. 188. 3376 See Kanu Final Brief, paras. 186–279. 3377 Military Structure of the AFRC Fighting Force, para. 600, supra. 3378 Colonel Iron, Transcript 12 October 2005, p. 59. 3379 Colonel Iron, Transcript 13 October 2005, p. 3. judgments 1711

Kanu commanded troops on military operations, thus establishing the existence of a superior/subordinate relationship. 2037. Witness TF1-334 testifĳied that while the troops were at Rosos, the Accused Kanu led an operation to Gbinti.3380 The plan, formulated at Rosos, was to capture the town by pretending to surrender. The soldiers captured a civilian en route, who told them that ECOMOG soldiers were in the town. The Accused Kanu decided that the surrendering tactic would not work. He ordered that the men attack the town immediately, which they did.3381 The ECOMOG forces withdrew and the Accused Kanu ordered that the town be looted and burned. Soldiers wrote, among other epithets, the words ‘Five-Five in town’ on the walls.3382 After this operation, the soldiers returned to Rosos and reported to the Accused Brima.3383 2038. Witness George Johnson testifĳied that the Accused Kanu was one of the commanders who led the troops into Karina when the town was burnt and its inhabitants killed.3384 According to the Witness, the Accused Kanu was a member of the headquarters group who “take care of all the operations, and all the orders come from the headquarters.” The Witness also said that “headquarters [was] in charge of planning all operations and giving military orders.”3385 Witness TF1-334 confĳirmed that the Accused Kanu, as chief of stafff, was present when the Accused Brima gave orders to attack and burn Karina, amputate the citizens, and capture strong men, as a demonstration “to shock the whole country.”3386 2039. Witness TF1-158 gave evidence that the Accused Kanu was one of the leaders of the troops who attacked Bornoya, where looting took place and civilians were amputated and killed.3387 2040. The Trial Chamber is satisfĳied that this evidence proves beyond reasonable doubt that the Accused Kanu had efffective control over his AFRC subordinates in Bombali District. b. Actual or Imputed Knowledge and Failure to Prevent or Punish 2041. The Trial Chamber is also satisfĳied on the evidence beyond reasonable doubt that in his role as leader of the attacks, the Accused Kanu knew or should have known of the crimes committed by his troops and that it was within his

3380 TF1-334, Transcript 24 May 2005, p. 48. 3381 TF1-334, Transcript 24 May 2005, pp. 48–49. 3382 TF1-334, Transcript 24 May 2005, p. 50. 3383 TF1-334, Transcript 24 May 2005, p. 50. 3384 George Johnson, Transcript 15 September 2005, p. 54. 3385 George Johnson, Transcript 15 September 2005, p. 60. 3386 TF1-334, Transcript 23 May 2005, p. 58. 3387 TF1-158, Transcript 26 July, 2005, p. 32. 1712 part iv ability to have prevented such crimes or to have punished his subordinates for committing them, but that he failed to take the necessary and reasonable measures to do so. 2042. The Kanu Defence submits that the Accused Kanu’s responsibilities with respect to civilians was ‘protective.’3388 The Trial Chamber rejects this submission. The factual fĳindings demonstrate that the Accused Kanu presided over a system that institutionalised serious abuse of civilians. The characterisation of the Accused Kanu’s function as ‘protective’ is incorrect and unacceptable. 2043. The Trial Chamber thus fĳinds that the Prosecution has established beyond reasonable doubt that the Accused Kanu knew or ought to have known of the commission of crimes by his subordinates in Bombali District and failed to prevent or punish the perpetrators thereof. c. Conclusion 2044. The Trial Chamber fĳinds that the Prosecution has established beyond reasonable doubt that the Accused Kanu is liable as a superior under Article 6(3) for crimes committed in Bombali District.

7. Freetown and the Western Area 2045. The Trial Chamber had found that AFRC troops engaged in unlawful killings of civilians as charged under Counts 3 through 53389 and inflicted sexual and physical violence on civilians as charged under Counts 6 through 9 and 10 respectively.3390 AFRC troops also abducted civilians and used them as forced labour and used children illegally recruited for military purposes in the attack on Freetown, as charged under Counts 13 and 12 respectively.3391 Finally, AFRC troops engaged in widespread looting, as charged under Count 14, terrorised the civilian population, as charged under Count 1, and committed collective punishments, as charged under Count 2.3392 (a) Responsibility of the Accused Kanu under Article 6(1) of the Statute (i) Submissions 2046. In its Final Brief, the Prosecution submits that the Accused Kanu personally executed and amputated civilians, burned property, forced civilians to work and committed or aided and abetted acts of sexual violence in Freetown and the

3388 Kanu Final Brief, paras. 267–279. 3389 Factual Findings, Unlawful Killings, para. 951, supra. 3390 Factual Findings, Sexual Violence, para. 1243, supra, Physical Violence, para. 1170, supra. 3391 Factual Findings, Enslavement, para. 1389, supra, Child Soldiers, para. 1278, supra. 3392 Factual Findings, Pillage, para. 1429, supra, Acts of Terror and Collective Punishments, para. 1609, supra. judgments 1713

Western Area.3393 The Prosecution argues that the Accused Kanu ordered amputations and executions of civilians.3394 The Prosecution contends that the Accused Kanu was present during the planning of the attack on Freetown, and that it can be inferred from his position as third in command that he actively participated in this planning phase.3395 Finally, the Prosecution submits that based on the Accused Kanu’s authority and the widespread nature of the crimes committed, it can be reasonably inferred that he prompted or encouraged these acts, and that he intended the acts or was aware of the substantial likelihood that such acts would be committed.3396 2047. In its Final Brief, regarding the role of the Accused Kanu in killings at a mosque at Kissy, the Kanu Defence argues that the victims were ECOMOG soldiers and therefore that the Accused cannot be held liable for any crimes under the Statute.3397 The Kanu Defence further submits that the evidence of Prosecution witness TF1-282, who testifĳied that she had been raped by the Accused Kanu, was unreliable.3398 The Kanu Defence contends that the Prosecution witness George Johnson’s evidence regarding Kanu’s order at Kissy Mental Home to amputate civilians is unsafe.3399 It further contends that Prosecution witness TF1-184’s evidence that the Accused Kanu demonstrated a method for carrying out amputations does not sufffĳice to hold him liable under Counts 10 and 11. Finally, it submits that Prosecution witness TF1-334’s testimony as a whole, including his testimony regarding the role of the Accused in amputations committed in Freetown, is unreliable.3400 (ii) Findings a. Committing i. Fourah Bay: The killing of civilians 2048. The Trial Chamber has found that AFRC troops killed an unknown number of civilians at Fourah Bay in retaliation for the alleged murder of a soldier during the 1999 attack on Freetown.3401 While witness TF1-334 testifĳied that the Accused Kanu “partook” in the attack, the witness does not further clarify the manner of his participation.3402

3393 Prosecution Final Brief, paras. 1634–1636. 3394 Prosecution Final Brief, para. 1631. 3395 Prosecution Final Brief, para. 1629. 3396 Prosecution Final Brief, para. 1630. 3397 Kanu Final Brief, paras. 412–414. See also Kanu Closing Arguments, 8 December 2006, p. 37. 3398 Kanu Final Brief, paras. 415–416. 3399 Kanu Final Brief, paras. 420–421. 3400 Kanu Final Brief, paras. 422–424. 3401 TF1-334, Transcript 14 June 2005, pp. 66–67. 3402 Factual Findings, Unlawful Killings, para. 919, supra. 1714 part iv

2049. The Trial Chamber has found that this evidence does not establish that the Accused Kanu personally killed any civilians.3403 ii. Kissy Road: “Demonstration” of an amputation to the troops 2050. The Trial Chamber has found that the Accused Kanu amputated a civilian near Kissy Old Road during the 6 January 1999 invasion in order to “demonstrate” to his troops how best to carry out amputations.3404 He explained that there were two types of amputation possible, one called a long sleeve, meaning an amputation of the arms, and the other a short sleeve, meaning an amputation of the arm up to the bicep.3405 The Indictment does not provide any of the particulars of the incident and is therefore defective in this regard. 2051. The Trial Chamber must determine whether this defect in the Indictment was cured by clear, timely and consistent notice to the Kanu Defence. The Prosecution Supplemental Pre-Trial Brief and the Prosecution’s Opening Statements do not refer to this incident. Nevertheless, the Kanu Defence did not object to the evidence when led and in fact cross-examined the witness on this specifĳic incident during trial. The Trial Chamber therefore fĳinds that the failure to give notice did not materially impair the ability of the Kanu Defence to prepare its case. 2052. The Trial Chamber accordingly fĳinds the Accused Kanu individually criminally responsible for committing an act of physical violence. iii. Upgun: “Demonstration” of an amputation on a civilian 2053. The Trial Chamber has found that subsequently the Accused Kanu demonstrated how to perform amputations on two other civilians at Upgun during the retreat from Freetown in January 1999.3406 The Trial Chamber is satisfĳied that this is a separate incident to the act of physical violence described above. The Indictment does not provide any of the particulars of the incident and is therefore defective in this regard. 2054. The Trial Chamber must determine whether this defect in the Indictment was cured by clear, timely and consistent notice to the Brima Defence. The Prosecution Supplemental Pre-Trial Brief and the Prosecution’s Opening Statements do not refer to this incident. The Trial Chamber observes that the relevant information did not come into the Prosecution’s possession until March or April 2005, and that on 22 April 2005 it disclosed a statement to the defence in which the witness said that

3403 Factual Findings, Unlawful Killings, para. 926, supra. 3404 Factual Findings, Physical Violence, para. 1230, supra; TF1-184, Transcript 27 September 2005, pp. 72–74. 3405 TF1-184, Transcript 27 September 2005, p. 74. 3406 TF1-334, Transcript 14 June 2005, pp. 68–70. judgments 1715

Whilst we were at Upgun, 55 came with a commander, Major Mines and Captain Kabila and some people were amputated. 55 demonstrated by amputating two people. From then on the amputations started.3407 2055. Thus, the Defence was not put on notice of this allegation until over one month after the trial commenced. The Trial Chamber does not consider that this constitutes timely notice. Nevertheless, the Kanu Defence did not object to the evidence when led and in fact cross-examined the witness on this specifĳic incident during trial. The Trial Chamber therefore fĳinds that the failure to give timely notice did not materially impair the ability of the Kanu Defence to prepare its case. 2056. The Trial Chamber accordingly fĳinds the Accused Kanu individually criminally responsible for committing an act of physical violence. iv. State House: Looting of vehicles 2057. Witness Gibril Massaquoi testifĳied that vehicles were looted by AFRC troops in Freetown and that the Accused Kanu arrived at State House with a stolen vehicle during the 6 January 1999 Freetown invasion.3408 The Trial Chamber is sat- isfĳied beyond a reasonable doubt on this evidence that the Accused Kanu personally looted at least one vehicle in Freetown. The Trial Chamber accordingly fĳinds the Accused Kanu individually criminally responsible for committing an act of pillage. b. Ordering i. Order at State House to kill captive Nigerian ECOMOG soldiers 2058. The Trial Chamber found that the Accused Brima ordered the execution of fourteen to sixteen captive ECOMOG soldiers at State House, and that the Accused Kanu then took the soldiers outside, killed one ECOMOG soldier himself, and ordered his soldiers to execute the remaining captives. The Trial Chamber is satis- fĳied that the executions were carried out3409 and that the Accused Kanu ordered the commission of this crime in full awareness that the crime was likely to be committed. ii. Order to kill civilians at a mosque in Kissy 2059. The Trial Chamber found that the Accused Kanu reissued an order given by the Accused Brima on the day after the troops withdrew from Kissy Mental Home that an unknown number of civilians at a mosque were to be killed. The Accused Kanu is not relieved of criminal responsibility for ordering this massacre

3407 Statement of witness TF1-334 dated 16 March 2005–20 April 2005, CMS p. 7880 [confĳidential]. 3408 Gibril Massaquoi, Transcript 7 October 2005, p. 126. 3409 Gibril Massaquoi, Transcript 7 October 2005, pp. 115–116. 1716 part iv simply because he was reissuing an order originally made by his commander, the Accused Brima. The Trial Chamber has found that the executions were carried out.3410 The Trial Chamber is further satisfĳied that the Accused Kanu ordered the commission of this crime in full awareness that the crime was likely to be committed. iii. Order to commit amputations in Eastern Freetown 2060. The Trial Chamber has found that when AFRC troops arrived at Kissy Mental Home, during the retreat from Freetown, the Accused Kanu ordered his fĳighters to go to Eastern Freetown and amputate 200 civilians and then send them to Ferry Junction. The witness George Johnson was present when the order was given, and saw the troops leave towards Eastern Freetown and return with severed arms and blood covered machetes.3411 The Trial Chamber is satisfĳied that the amputations were carried out and that the Accused Kanu ordered the commission of this crime in full awareness that the crime was likely to be committed. 2061. The Trial Chamber has found that when the troops reached Upgun during the retreat from Freetown, the Accused Kanu told his commanders, including Col. Mines and Kabila, that it was time for amputations to begin, and that he would begin by demonstrating. Later two civilians were captured and the Accused amputated their arms. The Accused explained that he had begun the amputations as an example to his troops of how to proceed. He then told the victims that they should go to President Kabbah to ask for new hands. Later that day, ten other civilians were captured and amputated by Kabila and Mines in Kanu’s presence. Mines repeated Kanu’s instruction to the victims to seek new hands from President Kabbah.3412 The Trial Chamber recalls its fĳinding that the Accused is liable for committing two amputations at Upgun. It additionally fĳinds that he ordered the commission of further amputations which were then carried out. The Trial Chamber is satisfĳied that the Accused Kanu ordered the commission of this crime in full awareness that the amputations were likely to be committed. The Trial Chamber therefore fĳinds that the Prosecution has proved this particular mode of individual criminal responsibility beyond reasonable doubt. c. Planning 2062. The Prosecution has not adduced any evidence that the Accused Kanu planned any crimes under Counts 3 through 6, 10 through 11 and 14 in Freetown and the Western Area. The Trial Chamber fĳinds that the Prosecution has not proved this mode of individual criminal responsibility against the Accused Kanu

3410 Factual Findings, Unlawful Killings, para. 936, supra; Gibril Massaquoi, Transcript 7 October 2005, pp. 115–116. 3411 George Johnson, Transcript 16 September 2005, p. 53–54. 3412 TF1-334, Transcript 14 June 2005, 68–71. judgments 1717 for any crimes committed under those Counts. The Accused Kanu’s criminal responsibility for Counts 9, 12 and 13, which involve crimes of a continuing nature spanning various districts, will be discussed below.3413 d. Instigating 2063. The Trial Chamber recalls that on the eve of the 6 January 1999 invasion of Freetown, the Accused Brima chaired a meeting at which the Accused Kanu reminded the AFRC troops present about orders to burn down police stations and kill “targeted persons”/collaborators.3414 The Trial Chamber has found that a number of civilians were subsequently killed in Freetown. The Trial Chamber is satis- fĳied that the Accused Kanu prompted the perpetrators to kill civilians in Freetown. The Trial Chamber therefore fĳinds that the Prosecution has proved this mode of liability against the Accused Kanu. e. Otherwise aiding and abetting 2064. The Prosecution has not adduced any evidence that the Accused Kanu aided and abetted any crimes in Freetown and the Western Area. The Trial Chamber fĳinds that the Prosecution has not proved this mode of individual criminal responsibility against the Accused Kanu for the crimes committed in Freetown and the Western Area. (b) Responsibility of the Accused Kanu Under Article 6(3) of the Statute (i) Submissions 2065. The Prosecution submits that the Accused Kanu has superior responsibility for all crimes committed by his subordinates in Freetown from 6 January until about 28 January. The Prosecution argues that the Accused Kanu’s actual or imputed knowledge of the crimes can be inferred from the fact that crimes were often ordered by him or in his presence and that as one of the key commanders in the fĳield, the Accused Kanu had the material ability to prevent the commission of crimes or to punish the perpetrators.3415 2066. The Kanu Defence submits that the positions of Chief of Stafff and commander in charge of civilians are not operational command positions and therefore do not entail superior responsibility.3416 (ii) Findings a. Existence of a superior-subordinate relationship 2067. The Trial Chamber has found that the Accused Kanu was Chief of Stafff and the commander in charge of civilians throughout the attack on Freetown on

3413 Responsibility of the Accused, Kanu, para. 2095, infra. 3414 George Johnson, Transcript 16 September 2005, p. 17. 3415 Prosecution Final Brief, paras. 1637–1640. 3416 Kanu Final Brief, para. 188. 1718 part iv

6 January 1999 until the retreat to Newton in the Western Area.3417 The Trial Chamber has also found that the AFRC faction had a functioning chain of command and planning and orders process during the initial invasion of Freetown, but that this command structure failed when the troops lost control of State House.3418 2068. The Trial Chamber notes that Accused Kanu’s functions as Chief of Stafff in the Western Area involved responsibilities which did not require the exercise of command over troops. For example, Prosecution witness George Johnson testi- fĳied that the Accused Kanu ran the meeting at Orugu Village at which the Accused Brima ordered the attack on Freetown.3419 The Prosecution Military Expert Colonel Iron opined that it is customary in regular armies for the Chief of Stafff to run meetings and for the commander to act as chair, only interjecting when necessary to stress particular points. He also testifĳied that this was the regular practice in the AFRC.3420 2069. As with its fĳindings in Bombali District, the Trial Chamber reiterates that it cannot be presumed that the Accused Kanu performed the same role as a Chief of Stafff in a regular army. The Trial Chamber accepts the expert evidence of Colonel Iron in this specifĳic regard since it is consistent with the testimony of witness George Johnson. However, as was also demonstrated in Bombali District, there is other evidence upon which the Trial Chamber is satisfĳied that, in addition to assisting the commander in an administrative capacity, the position of Chief of Stafff placed the Accused Kanu in a position of efffective control over troops. 2070. The Trial Chamber has found that as Chief of Stafff, the Accused Kanu was third in command in Freetown.3421 The Trial Chamber further recalls its fĳindings that the Operations Director, the Operations Commander, the Task Force Commander and the head of Military Police were all required to report to the Accused Kanu. These men were senior to the battalion commanders.3422 Thus, although he did not have a particular unit of men under his command, the Trial Chamber rejects the Kanu Defence’s submission that as Chief of Stafff and commander in charge of civilians, the Accused Kanu was relegated to the role of a non-operational commander.

3417 Role of Accused, para. 535, supra. 3418 Military Structure of the AFRC Fighting Force, para. 620, supra. 3419 George Johnson, Transcript 16 September 2005, p. 17. 3420 Exhibit P-36, para. D3–1. 3421 Role of Accused, para. 535, supra. 3422 Military Structure of the AFRC Fighting Force, para. 608. judgments 1719

2071. The Accused Kanu’s seniority is also evidenced by the fact that, like the Accused Kamara, he was based at the AFRC headquarters at State House.3423 He attended the meeting of commanders held there on the evening of 6 January at which an attack on Wilberforce was discussed.3424 In addition, the Accused Kanu made an announcement over the local radio on 6 January 1999 that the troops had captured Freetown, identifying himself as Chief of Stafff.3425 2072. The Accused Kanu’s de jure position, taken together with the following evidence of the Accused Kanu giving orders which were obeyed, establishes that as Chief of Stafff he possessed the material ability to efffectively control troops in Freetown until the loss of State House. 2073. During the advance towards Freetown, the Accused Kanu commanded a body of troops that went on an operation to attack Tumbo.3426 While in Freetown, one morning prior to the loss of State House, the Accused Kanu ordered the military police to move the dead bodies that were piling up in the vicinity, as the area was beginning to smell.3427 2074. Witness Gibril Massaquoi testifĳied that while the senior commanders were still at State House, he observed a soldier coming from the front line who encountered the Accused Kanu near State House. The soldier reported to the Accused Kanu on the current positions of the advancing ECOMOG troops. The witness overheard the Accused Kanu ordering some offfĳicers to fĳind men to reinforce that particular area. The offfĳicers did so and the Accused Kanu ordered the assembled troops to ‘put the war candle on,’ by which he meant to burn the houses. The Accused Kanu then ordered some kerosene to be brought from State House. This kerosene was distributed by the offfĳicers among the troops, who then began setting houses alight.3428 2075. Finally, the fact that the Accused Kanu ordered the commission of crimes in Freetown is evidence of his ability to control AFRC troops subordinate to him. 2076. The Trial Chamber therefore fĳinds that a superior-subordinate relationship existed between the Accused Kanu and the AFRC troops in Freetown.

3423 TF1-334, Transcript 14 June 2005, pp. 4–5 OR 13 June 2005 p. 105; Gibril Massaquoi, Transcript 7 October 2005, p. 122; Gibril Massaquoi Transcript 10 October 2005, p. 3; TF1-153 Transcript 23 September 2005, p. 3. 3424 Gibril Massaquoi, Transcript 7 October 2005, p. 120; 11 October 2005, pp. 5, 65. 3425 TF1-334, Transcript 14 June 2005, p. 19 3426 TF1-153, Transcript 22 September 2005, p. 95. 3427 Gibril Massaquoi, Transcript 10 October 2005, p. 12. 3428 Gibril Massaquoi, Transcript 10 October 2005, pp. 13–15; see also testimony of Witness TF1-184 on what appears to be the same incident: Transcript 27 September 2005, p. 6 1720 part iv

b. Knowledge 2077. The Trial Chamber is satisfĳied that the Accused Kanu had reason to know of the commission of crimes committed before the loss of State House in which he was not directly involved. He directly participated in the commission of a number of crimes.3429 The crimes were committed on a wide scale in physical proximity to the Accused Kanu at State House. 2078. The Trial Chamber therefore fĳinds that there can be no reasonable doubt that the Accused Kanu was in possession of information to put him on notice that crimes were being committed by his subordinates before the loss of State House, although he was not directly involved in such crimes. c. Failure to prevent or punish 2079. There is no evidence that the Accused Kanu took any measures to prevent the troops under his control in Freetown from committing crimes against or punish the perpetrators of such crimes. d. Conclusion 2080. The Trial Chamber fĳinds that the Prosecution has established beyond reasonable doubt that the Accused Kanu is liable as a superior under Article 6(3) for crimes committed in the Western Area.

8. Port Loko District 2081. The Trial Chamber has found that AFRC/RUF troops unlawfully killed a number of civilians in Port Loko District as charged under Counts 4 through 5.3430 In addition, AFRC troops held persons in sexual slavery as charged under Count 9.3431 AFRC/RUF troops used abducted civilians for forced labour, as charged under Count 13. (a) Responsibility of the Accused Kanu Under Article 6(1) of the Statute (i) Submissions 2082. In its Final Trial Brief, the Prosecution argues only that the Accused in Kanu is liable for the crimes committed in Port Loko District as a principal in a joint criminal enterprise.3432 2083. The Kanu Defence makes no specifĳic submissions regarding the alleged liability of the Accused for crimes committed in Port Loko District in its Final Brief.

3429 See the Trial Chamber’s fĳindings on the individual criminal responsibility of the Accused Brima in Freetown and Western Area under Article 6(1): Findings on the Responsibility of the Accused, paras. 1750–1785. 3430 Factual Findings, Unlawful Killings, para. 965, supra. 3431 Factual Findings, Outrages upon Personal Dignity, para. 1187, supra. 3432 Prosecution Final Brief, para. 1755. judgments 1721

(ii) Findings 2084. The Prosecution has not adduced any that the Accused Kanu individually committed, ordered, planned, instigated, or otherwise aided and abetted any of the crimes that occurred in Port Loko District. The Trial Chamber fĳinds that the Prosecution has not proved any of these modes of individual criminal responsibility against the Accused Kanu for the crimes committed in Port Loko District. (b) Responsibility of the Accused Kanu Under Article 6(3) of the Statute (i) Submissions 2085. The Prosecution makes no submission in its Final Brief that the Accused Kanu has superior responsibility for crimes committed in Port Loko District between January and April 1999. 2086. The Kanu Defence makes no submissions specifĳic to the superior responsibility of the Accused Kanu in Port Loko District. (ii) Findings 2087. The Trial Chamber has found that following the second unsuccessful attack on Freetown staged jointly by AFRC/RUF commanders, the Accused Kanu accompanied the Accused Brima to Lunsar to assist Superman, who was fĳighting against Issa Sesay at the time.3433 No reliable evidence has been adduced on the organisation of the AFRC troops associated with the Accused Kanu in this period or whether this group fought alongside Superman or under his overall command. It has not been established beyond reasonable doubt that the Accused Kanu had troops under his efffective control during this period. 2088. The Trial Chamber fĳinds that the Prosecution has not established beyond reasonable doubt that the Accused Kanu is liable as a superior under Article 6(3) for crimes committed in Port Loko District.

9. Responsibility for Crimes of Enslavement under Article 6(1) 2089. The Trial Chamber has found that civilians were subjected to sexual slavery as charged under Count 9; that children under the age of 15 were conscripted into the AFRC forces and/or used to participate in active hostilities as charged under Count 12; and that civilians were enslaved as charged under Count 13. 2090. As with the Accused Brima, the Trial Chamber will examine the evidence in relation to the responsibility of the Accused Kanu for each of the enslavement crimes as a whole. The Trial Chamber recalls its fĳinding that the only reasonable inference available from the systemic commission of these crimes on a large scale

3433 Role of Accused, para. 537, supra. 1722 part iv is that these crimes were planned.3434 The Trial Chamber will consider the evidence in order to determine whether the Accused Kanu substantially contributed to the planning of these crimes. 2091. The Trial Chamber has found that the Accused Kanu was Chief of Stafff and commander in charge of abducted civilians in Bombali District and the Western Area.3435 As the AFRC troops depended heavily on these civilians for a multitude of tasks, the Accused Kanu’s position was a critical one. 2092. In Bombali District the Accused Kanu designed and implemented a system to control abducted girls and women. All abducted women and girls were placed in the custody of the Accused. Any soldier who wanted an abducted girl or woman to be his “wife” had to “sign for her.” The Accused informed his fĳighters that any problems with the women were to be immediately reported back to him, and that he would then monitor the situation.3436 The Accused issued a disciplinary instruction ordering that any woman caught with another woman’s husband should be beaten and locked in a box.3437 In one instance, Witness TF1-334 observed a Stafff Sergeant reporting to Kanu that he suspected his “wife” of misbehaving and the Accused Kanu 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.3438 2093. The Trial Chamber has also found that the Accused Kanu was in charge of the forced military training of civilians at Camp Rosos. Among those forced to undergo training were children below the age of 15 years old.3439 2094. The Trial Chamber has found that the Accused Kanu continued in his positions as Chief of Stafff and commander in charge of civilians in Freetown and the Western Area. The Trial Chamber has found that the Accused Kanu had approximately ten child combatants in his charge in Benguema following the retreat from Freetown.3440 2095. The Trial Chamber is satisfĳied that the Accused Kanu planned, organised and implemented the system to abduct and enslave civilians which was committed by AFRC troops in Bombali and Western Area. It is further satisfĳied that the Accused Kanu had the direct intent to establish and implement the system of

3434 Findings on Responsibility, Brima, para. 1826, supra. 3435 Role of the Accused, para. 535, supra. 3436 TF1-334, Transcript 23 May 2005, pp. 75–77. 3437 TF1-334, Transcript 24 May 2005, pp. 63–65. 3438 TF1-334, Transcript 24 May 2005, pp. 67–69. 3439 TF1-334, Transcript 24 May 2005, pp. 24–25. 3440 Factual Findings, Child Soldiers, para. 1263; TF1-227, Transcript 8 April 2005, pp. 95–96; 11 April 2005, pp. 2–3, 16, 21. judgments 1723 exploitation involving the three enslavement crimes, namely, sexual slavery, conscription and use of children under the age of 15 for military purposes, and abductions and forced labour. (a) Responsibility under Article 6(1) for Count 9 (Sexual Slavery) 2096. On the basis of the foregoing, the Trial Chamber is satisfĳied beyond reasonable doubt that the Accused Kanu is individually criminally responsible under Article 6(1) of the Statute for planning the commission of the crime of sexual slavery in Bombali District and the Western Area. (b) Responsibility under Article 6(1) for Count 12 (Child Soldiers) 2097. On the basis of the foregoing, the Trial Chamber is satisfĳied beyond reasonable doubt that the Accused Kanu is individually responsible under Article 6(1) of the Statute for planning the commission of conscription of children under the age of 15 into the armed group or using them to participate actively in hostilities in Bombali District and the Western Area. (c) Responsibility under Article 6(1) for Count 13 (Enslavement) 2098. On the basis of the foregoing, the Trial Chamber is satisfĳied beyond reasonable doubt that the Accused Kanu is individually criminally responsible under Article 6(1) of the Statute for enslavement in Bombali District and the Western Area. 1724 part iv

XII. Cumulative Convictions

A. Introduction 2099. The issue of cumulative convictions arises when more than one charge stems out of what is essentially the same criminal conduct. Cumulative convictions entered under diffferent statutory provisions but based on the same conduct are permissible only if each statutory provision involved has a materially distinct element not contained in the other. An element is materially distinct from another if it requires proof of a fact not required by the other.3441 2100. Where this test is not met, the Trial Chamber must decide in relation to which offfence it will enter a conviction on the basis of the principle that the conviction under the more specifĳic provision should be upheld.3442 In other words, where a fact forms the basis of two charges under diffferent provisions of the Statute, and where the test set out above is not met, the provision “which contains an additional materially distinct element” should be the one under which a conviction will be entered.3443 2101. The Kunarac Appeals Chamber observed that in considering cumulative convictions the Trial Chamber must balance the “very real risk of prejudice to an accused” with its obligation to describe the “full culpability of a particular accused.”3444 The Chamber went on to caution that the Celibići test was “decep- tively simply. In practice, it is difffĳicult to apply in a way that is conceptually coherent and promotes the interests of justice.”3445 Thus it concluded that although the question of whether the same conduct violates two distinct statutory provisions is one of law, nevertheless the Chamber must take into account “the entire situation so as to avoid a mechanical or blind application of its guiding principles.”3446

B. Submissions of the Parties 2102. The Prosecution has made the following submissions: (i) that multiple convictions must be entered when they are admissible, because they “serve to describe the full culpability of a particular accused or provide a complete picture of his criminal conduct”;3447

3441 Čelebići Appeal Judgement, para. 412. 3442 Čelebići Appeal Judgement, para. 413. 3443 Čelebići Appeal Judgement, para. 413. 3444 Kunarac Appeal Judgement, para. 169. 3445 Kunarac Appeal Judgement, para. 172. 3446 Kunarac Appeal Judgement, para. 174. 3447 Prosecution Final Brief, para. 1921, citing Kunarac Appeal Judgement, para. 169. judgments 1725

(ii) that multiple convictions for Crimes against Humanity (Article 2) and for War Crimes (Articles 3 and 4) are permissible as they have separate chapeau requirements;3448 (iii) that cumulative convictions on the basis of the same acts under one Article of the Statute – for example, conduct which violates at the same time the prohibition of pillage, acts of terrorism and collective punishments under Article 3 – are permissible provided that each provision has a materially distinct element;3449 2103. The Defence has made no submissions on the question of cumulative convictions.

C. Discussion 2104. The Accused Brima has been found individually criminally responsible pursuant to 6(1) of the Statute for offfences committed in Bombali District and Freetown and the Western Area as charged under Count 1, Count 2, Count 3, Count 4, Count 5, Count 9, Count 10, Count 12, Count 13 and Count 14. He has also been found individually criminally responsible pursuant to Article 6(3) for offfences committed by his subordinates in Bombali District and Freetown and the Western Area as charged under Count 1, Count 2, Count 3, Count 4, Count 5, Count 6, Count 9, Count 10, Count 12, Count 13 and Count 14. 2105. The Accused Kamara has been found individually criminally responsible pursuant to Article 6(1) of the Statute for offfences committed in Bombali District and Freetown and the Western Area as charged under Count 3, Count 4, Count 5, Count 9, Count 10, Count 12 and Count 13. He has also been found individually criminally responsible pursuant to Article 6(3) for offfences committed by his subordinates in Kono District, Bombali District, Freetown and the Western Area and Port Loko District as charged under Count 1, Count 2, Count 3, Count 4, Count 5, Count 6, Count 9, Count 10, Count 12, Count 13 and Count 14. 2106. The Accused Kanu has been found individually criminally responsible pursuant to Article 6(1) of the Statute for offfences committed in Bombali District and Freetown and the Western Area as charged under Count 3, Count 4, Count 5, Count 9, Count 10, Count 12, Count 13 and Count 14. He has also been found individually criminally responsible pursuant to Article 6(3) for offfences committed by his subordinates in Bombali District and Freetown and the Western Area as charged under Count 1, Count 2, Count 3, Count 4, Count 5, Count 6, Count 9, Count 10, Count 12, Count 13 and Count 14. 2107. Crimes against humanity constitute distinct offfences from war crimes under Article 3 and 4 of the Statute as each category of crimes has distinct

3448 Prosecution Final Brief, para. 1923. 3449 Prosecution Final Brief, para. 1924. 1726 part iv chapeau elements. Thus convictions are permissible under Articles 2 and 3 of the Statute of the Special Court, and/or Articles 2 and 4 of the Statute.3450 Therefore, the issue of cumulative convictions under Articles 3 and 4 does not arise in the instant case. It is therefore permissible to enter convictions based on the same conduct for charges of murder brought pursuant to Article 2(a) and 3(a), rape and outrages upon personal dignity pursuant to Article 2(g) and 3(e). 2108. The Trial Chamber considers that collective punishments and acts of terror pursuant to Articles 3(b) and 3(d) both require a specifĳic purpose - either to terrorise or to punish. These crimes do not necessarily require evidence of violence to life, health and physical well-being of persons pursuant to Article 3(a) or Outrages upon Personal Dignity under Article 3(e). As mentioned, each of the acts under Count 1 and 2 have a material distinct element, i.e. the intent to terrorise or to punish collectively. Therefore, the Trial Chamber fĳinds that it is permissible to convict an accused under Article 3(b) or 3(d), as well as the underlying crimes charged in Articles 3(a) (murder and mutilation) and Article 3(e) (outrages upon personal dignity). 2109. It is not permissible to convict both for murder and extermination under Article 2(a) and (b) based on the same conduct. The issue was settled by the Appeals Chamber in Ntakirutimana, which concluded that convictions for both murder and extermination, as crimes against humanity, based on the same conduct were impermissible as the crime of murder was subsumed by the crime of extermination.3451 However, the Trial Chamber fĳinds that it is permissible to convict on both counts if each count is based not on the same but on distinct conduct. Thus, one killing, or series of killings, may have been committed as part of a widespread or systematic attack against any civilian population, constituting murder under Article 2(a) of the Statute. A separate killing, or series of killings, committed with the intent to bring about the destruction of a numerically signifĳicant part of a population may be found to constitute extermination under Article 2(b) of the Statute. In the instant case, the Trial Chamber is satisfĳied that each of the Accused is individually criminally responsible for Extermination based on a distinct set of killings, and also responsible for murder as a crime against humanity based on a diffferent set of killings. 2110. On the issue of concurrent convictions under separate modes of liability, the Appeals Chamber in Blaskić concluded that in relation to a particular count, it is not appropriate to convict under both Article 7(1) and Article 7(3) of the Statute. Where both Article 7(1) and Article 7(3)

3450 Kunarac Appeals Judgement, paras. 176–178; see also Kupreškić Appeals Judgement, para. 388, and Jelisić Appeals Judgement, para. 82. 3451 Ntakirutimana Appeals Chamber, para. 542. judgments 1727

responsibility are alleged under the same count, and where the legal requirements pertaining to both of these heads of responsibility are met, a Trial Chamber should enter a conviction on the basis of Article 7(1) only, and consider the accused’s superior position as an aggravating factor in sentencing.3452 2111. The Trial Chamber fĳinds no reason to depart from this practice. The Trial Chamber has made extensive fĳindings on all the modes of liability in respect of the evidence that led to a fĳinding under each count in Chapter XI: Responsibility of the Accused. The extent of the participation of the Accused is therefore adequately described and can be taken into consideration at the sentencing stage.

3452 Blaskić Appeals Judgement, para. 91. 1728 part iv

XIII. Disposition

2112. Having considered all of the evidence and the arguments of the Parties, the Statute and the Rules, and based upon the fĳindings as determined by the Trial Chamber in this Judgement, the Trial Chamber fĳinds as follows:

A. The Accused Brima 2113. The Trial Chamber unanimously fĳinds the Accused ALEX TAMBA BRIMA GUILTY of the following crimes pursuant to Article 6(1) of the Statute: Count 1: Acts of Terrorism, a Violation of Article 3 common to the Geneva Conventions and of Additional Protocol II, pursuant to Article 3(d) of the Statute; Count 2: Collective Punishments, a Violation of Article 3 common to the Geneva Conventions and of Additional Protocol II, pursuant to Article 3(b) of the Statute; Count 3: Extermination, a Crime against Humanity, punishable under Article 2(b) of the Statute; Count 4: Murder, a Crime against Humanity, pursuant to Article 2(a) of the Statute; Count 5: 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, pursuant to Article 3(a) of the Statute; Count 9: Outrages upon personal dignity, a Violation of Article 3 common to the Geneva Conventions and of Additional Protocol II, pursuant to Article 3(e) of the Statute; Count 10: Violence to life, health and physical or mental well-being of persons, as mutilation, a Violation of Article 3 common to the Geneva Conventions and of Additional Protocol II, punishable under Article 3(a) of the Statute; Count 12: Conscripting children under the age of 15 years into an armed group and/or using them to participate actively in hostilities, an other serious violation of international humanitarian law, pursuant to Article 4(c) of the Statute; Count 13: Enslavement, a Crime against Humanity, pursuant to Article 2(c) of the Statute; and Count 14: Pillage, a Violation of Article 3 common to the Geneva Conventions and of Additional Protocol II, pursuant to Article 3(f) of the Statute. 2114. The Trial Chamber unanimously fĳinds the Accused ALEX TAMBA BRIMA GUILTY of the following crimes pursuant to Article 6(3) of the Statute: Count 6: Rape, a Crime against Humanity, pursuant to Article 2(g) of the Statute. judgments 1729

2115. The Trial Chamber unanimously fĳinds the Accused ALEX TAMBA BRIMA NOT GUILTY on: Count 11: Other inhumane acts, a Crime against Humanity, pursuant to Article 2(i) of the Statute. 2116. A CONVICTION IS NOT ENTERED against the Accused ALEX TAMBA BRIMA on: Count 7: Sexual slavery and any other form of sexual violence, a Crime against Humanity, pursuant to Article 2(g) of the Statute; and Count 8: Other inhumane act, a Crime against Humanity, punishable under Article 2(i) of the Statute.

B. The Accused Kamara 2117. The Trial Chamber unanimously fĳinds the Accused IBRAHIM BAZZY KAMARA GUILTY of the following crimes pursuant to Article 6(1) of the Statute: Count 3: Extermination, a Crime against Humanity, punishable under Article 2(b) of the Statute; Count 4: Murder, a Crime against Humanity, pursuant to Article 2(a) of the Statute; Count 5: 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, pursuant to Article 3(a) of the Statute; Count 9: Outrages upon personal dignity, a Violation of Article 3 common to the Geneva Conventions and of Additional Protocol II, pursuant to Article 3(e) of the Statute; Count 10: Violence to life, health and physical or mental well-being of persons, as mutilation, a Violation of Article 3 common to the Geneva Conventions and of Additional Protocol II, punishable under Article 3(a) of the Statute; Count 12: Conscripting children under the age of 15 years into an armed group and/or using them to participate actively in hostilities, an other serious violation of international humanitarian law, pursuant to Article 4(c) of the Statute; and Count 13: Enslavement, a Crime against Humanity, pursuant to Article 2(c) of the Statute. 2118. The Trial Chamber unanimously fĳinds the Accused IBRAHIM BAZZY KAMARA GUILTY of the following crimes pursuant to Article 6(3) of the Statute: 1730 part iv

Count 1: Acts of Terrorism, a Violation of Article 3 common to the Geneva Conventions and of Additional Protocol II, pursuant to Article 3(d) of the Statute; Count 2: Collective Punishments, a Violation of Article 3 common to the Geneva Conventions and of Additional Protocol II, pursuant to Article 3(b) of the Statute; Count 6: Rape, a Crime against Humanity, pursuant to Article 2(g) of the Statute; and Count 14: Pillage, a Violation of Article 3 common to the Geneva Conventions and of Additional Protocol II, pursuant to Article 3(f) of the Statute. 2119. The Trial Chamber unanimously fĳinds the Accused IBRAHIM BAZZY KAMARA NOT GUILTY on: Count 11: Other inhumane acts, a Crime against Humanity, pursuant to Article 2(i) of the Statute. 2120. A CONVICTION IS NOT ENTERED against the Accused IBRAHIM BAZZY KAMARA on: Count 7: Sexual slavery and any other form of sexual violence, a Crime against Humanity, pursuant to Article 2(g) of the Statute; and Count 8: Other inhumane act, a Crime against Humanity, punishable under Article 2(i) of the Statute.

C. The Accused Kanu 2121. The Trial Chamber unanimously fĳinds the Accused SANTIGIE BORBOR KANU GUILTY of the following crimes pursuant to Article 6(1) of the Statute: Count 3: Extermination, a Crime against Humanity, punishable under Article 2(b) of the Statute; Count 4: Murder, a Crime against Humanity, pursuant to Article 2(a) of the Statute; Count 5: 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, pursuant to Article 3(a) of the Statute; Count 6: Rape, a Crime against Humanity, pursuant to Article 2(g) of the Statute; Count 9: Outrages upon personal dignity, a Violation of Article 3 common to the Geneva Conventions and of Additional Protocol II, pursuant to Article 3(e) of the Statute; Count 10: Violence to life, health and physical or mental well-being of persons, as mutilation, a Violation of Article 3 common to the Geneva Conventions and of Additional Protocol II, punishable under Article 3(a) of the Statute; judgments 1731

Count 12: Conscripting children under the age of 15 years into an armed group and/or using them to participate actively in hostilities, an other serious violation of international humanitarian law, pursuant to Article 4(c) of the Statute; Count 13: Enslavement, a Crime against Humanity, pursuant to Article 2(c) of the Statute; and Count 14: Pillage, a Violation of Article 3 common to the Geneva Conventions and of Additional Protocol II, pursuant to Article 3(f) of the Statute. 2122. The Trial Chamber unanimously fĳinds the Accused SANTIGIE BORBOR KANU GUILTY of the following crimes pursuant to Article 6(3) of the Statute: Count 1: Acts of Terrorism, a Violation of Article 3 common to the Geneva Conventions and of Additional Protocol II, pursuant to Article 3(d) of the Statute; Count 2: Collective Punishments, a Violation of Article 3 common to the Geneva Conventions and of Additional Protocol II, pursuant to Article 3(b) of the Statute; and Count 6: Rape, a Crime against Humanity, pursuant to Article 2(g) of the Statute; 2123. A CONVICTION IS NOT ENTERED against the Accused SANTIGIE BORBOR KANU on: Count 7: Sexual slavery and any other form of sexual violence, a Crime against Humanity, pursuant to Article 2(g) of the Statute; and Count 8: Other inhumane act, a Crime against Humanity, punishable under Article 2(i) of the Statute. Dated this 20th day of June 2007, at Freetown, Sierra Leone.

Justice Richard Lussick Justice Julia Sebutinde Justice Teresa Doherty Presiding Judge

Justice Teresa Doherty appends a partly dissenting opinion to the Judgement. Justice Julia Sebutinde appends a separate concurring opinion to Judgement. 1732 part iv

SEPARATE CONCURRING OPINION OF THE HON. JUSTICE JULIA SEBUTINDE APPENDED TO JUDGEMENT PURSUANT TO RULE 88 (C)

A. Introduction 1. Let me begin by stating that I agree fully and unreservedly with the fĳindings and disposition of the Trial Chamber in the Judgement on all Counts in the Indictment. This opinion only examines the phenomenon of “forced marriage’” in the context of the Sierra Leone Conflict and its characterisation as a crime under international humanitarian law. 2. I do however, feel compelled to expound on one area in the Judgment, namely the phenomenon of “forced marriage” in the context of the Sierra Leone conflict. The Trial Chamber has, to some extent, dealt with this subject in the Chapter on Applicable Law. It is my considered view however, that given the fact that the subject of “forced marriage” as a crime committed in the context of an armed conflict is a relatively novel area that has hitherto not received much attention in the jurisprudence of the International Tribunals,3453 it merits a deeper analysis of the evidence adduced before the Trial Chamber during the trial in order to appreciate the Trial Chamber’s characterisation of this crime as a form of Sexual Slavery as defĳined in Article 7(1)(g)2 of the Rome Statute. That is what I seek to do in this Separate opinion.

B. Procedural History 3. It will be recalled that in February 2004 the Prosecution in this case successfully applied for and was granted leave by Trial Chamber I to amend the Consolidated Indictment by adding a new Count 8 entitled “the crime against humanity of other inhumane acts” to cater for alleged acts of Forced Marriage.3454

3453 Hitherto, International Criminal Tribunals have charged that acts associated with ‘forced marriage’ under such crimes against humanity as Sexual Slavery or rape. No International Criminal Tribunal has yet recognised “forced marriage” as separate or distinct crime under International Humanitarian Law. For example in the ICTR case of the Prosecutor v. Muhimana, ICTR-95-IB-T the Trial Chamber found that a witness who had been abducted and ‘forcibly married’ had in fact suf- fered multiple rapes. In the Prosecutor v. Akayesu ICTR-96–4-T the Trial Chamber called upon the Prosecution to initiate an investigation into allegations of’ forced marriage’ with a view to charging the crime against humanity of sexual violence, as the Prosecution had not it in the Indictment. In the ICTY case of Prosecutor v. Kunarac, IT-96–23-T &IT-96–23/I-T, THE Trial Chamber dealt with a situation akin to forced marriage whereby the victims comprising a number of women had been detained in a private residence and repeatedly raped by the perpetrators. The perpetrators resided with the women and guarded them to the extent that the women had no means of escape. The women also did household chores such as cooking, cleaning. The Trial Chamber did not consider the possibility of recognising ‘forced marriage’ as a distinct crime against humanity, preferring instead to convict the accused of multiple rapes. 3454 Prosecutor v. Alex Tamba Brima, et al., Case No. SCSL-04–16-PT, Trial Chamber Decision on Prosecution Request for Leave to Amend the Indictment, 6 May 2004, para.58. judgments 1733

The Prosecution further sought to amend the Consolidated Indictment inter alia, by making “corrections and/or modifĳications to the other counts including the expansion of time periods, an additional location for all counts related to sexual violence crimes, and the change of spellings of certain place names.”3455 In granting its leave, Trial Chamber I observed “In the present motion, the Prosecution is seeking our leave to amend the already existing consolidated indictment on which the proceedings are now based, in order to add one more count, and one count only, based on Forced Marriage. The question to be addressed in these circumstances is whether this additional count or offfence as the case is, is new in terms of its being a complete novelty in the arsenal of all the counts that constitute the entire consolidated indictment. Our immediate reflection on this issue that we have raised is that the count related to forced marriage which the Prosecution is seeking our leave to add to the consolidated indictment is as much sexual, indeed, a gender offfence as those that were included in the initial individual indictments and that feature in the current consolidated indictment on which this application to amend is based. We would like to say here that Forced Marriage is in fact what we would like to classify as a ‘kindred offfence’ to those that exist in the indictment in the view of the commonality of the ingredients needed to prove offfences of this nature […]”3456 [emphasis added] 4. From the above quotation, it is clear that in their assessment, Trial Chamber I classifĳied the phenomenon of “Forced Marriage” within the Sierra Leonean conflict as a sexual or gender crime akin to rape, sexual slavery or sexual violence. The Prosecution in fact went ahead and introduced the present Count 8 and related amendments in the Indictment. 5. In a subsequent decision in which the Prosecution sought leave to introduce new evidence of ‘Forced Marriages’ under the crime against humanity of “other inhumane acts” (rather than as evidence of a sexual or gender crime),3457 Trial Chamber I considered and rejected the proposition that sexual offfences including ‘forced marriages,’ do fall in the broad category of “other inhumane acts.”3458 Trial Chamber I found inter alia, that “... the particulars embodied in the Consolidated Indictment in respect of Counts 3 and 4 cannot be validly interpreted to be of an inclusive nature and as not excluding the broad range of unlawful acts which can lead to serious physical and mental harm,

3455 Ibid., para. 8. 3456 Ibid., paras. 50–51. 3457 In an earlier motion, Trial Chamber I had denied a Prosecution leave to amend the indictment to include sex crimes. In the absence of a count embodying crimes of a sexual nature, the Prosecution sought to lead evidence of “forced marriages” under “other inhumane acts.” 3458 Prosecutor v. Sam Hinga Norman et. al, Case No. SCSL-04–14-PT, Trial Chamber, Reasoned Majority Decision on Prosecution Motion for a Ruling on the Admissibility of Evidence, 24 May 2005. 1734 part iv

especially having regard to the formula “and any other form of sexual violence” in Article 2.g. [of the Statute] creating a separate specifĳic residual category of sexual violence, of the same kind as rape, sexual slavery, enforced prostitution and forced pregnancy. In light of the separate and distinct residual category of sexual offfences under Article 2.g., it is impermissible to allege acts of sexual violence (other than rape, sexual slavery, enforced prostitution and forced pregnancy) under Article 2.i. since “other inhumane acts,” even if residual, must logically be restrictively interpreted as covering only those acts of a non-sexual nature amounting to an afffront to human dignity. The clear legislative intent behind the statutory formula “any other form of sexual violence” in Article 2.g. is the creation of a category of offfences of sexual violence of a character that do not amount to any of the earlier enumerated sexual crimes, and that to permit such other forms of sexual violence to be charged as “other inhumane acts” offfends against the rule against multiplicity and uncertainty….”3459 6. In my Separate Concurring Opinion on the Trial Chamber’s Decision on Defence Motions for Judgement of Acquittal Pursuant to Rule 98,3460 I did observe that- “I am strongly persuaded by the above decisions of Trial Chamber I in holding that view that the acts of “forced marriage” that occurred within the context of the Sierra Leonean conflict, are in fact a form of sexual violence pursuant to Article 2.g. of the Statute and could equally qualify as a form of sexual slavery pursuant to Article 2.g. of the Statute. This is because the sexual element inherent in these acts tends to domi- nate the other elements therein such as forced labour and other forced conjugal duties. In an Indictment such as the present one, that charges specifĳic sexual crimes including rape, sexual slavery and other forms of sexual violence pursuant to Article 2.g. of the Statute, I am not persuaded that acts of “forced marriage” which are clearly sexual in nature, can be properly charged under the general regime of “other inhumane acts” pursuant to Article 2.i. of the Statute. It is my considered opinion that given the evidence on record, all alleged sex-related acts covered by the Indictment can be properly accommodated under Counts 6, 7, and 9 of the Indictment. In my opinion, any acts or offfences that are of a residual, non-sexual nature and that could arguably be contained under the general regime of “other inhumane acts” do not belong under the part of the Indictment entitled “COUNTS 6–9: SEXUAL VIOLENCE.” They properly belong under Count 11. Accordingly, I fĳind that Count 8 is redundant and would recommend that it be struck out in favour of retaining only one count of “other inhumane acts” under Count 11.” 7. However, at that stage of the trial, I did not have the benefĳit of considering all the evidence adduced during this trial relating to “forced marriage” as only the Prosecution had closed its case and the Defence had not opened theirs. My opinion was therefore based on a cursory consideration of the Prosecution evidence as

3459 Ibid., para. 19 (iii). 3460 Prosecutor v. Brima et al, SCSL-04–16-T, Separate Concurring Opinion of the Hon. Justice Julia Sebutinde on the Trial Chamber’s Decision on Defence Motions for Judgement of Acquittal Pursuant to Rule 98, 31 March 2006, para. 14. judgments 1735 it then stood on the record. The Trial Chamber has since heard extensive evidence including that of Expert witnesses on the crime that commonly came to be known in Sierra Leone as “forced marriage” and its victims as “bush wives” or “rebel wives.”

C. Expert Opinion on “Forced Marriage”

1. Drawing a distinction between early or arranged marriages of minors in peacetime and ‘forced marriage’ during armed conflict 8. Both the Prosecution and the Defence called expert witnesses who tendered in evidence reports that were intended to assist the Trial Chamber in its understanding and characterisation of the phenomenon of “forced marriage” in the context of the Sierra Leone conflict. Mrs. Zainab Hawa Bangura was the Prosecution Expert. Her Report was admitted in evidence as Prosecution Exhibit P 32.3461 Dr. Dorte Thorsen was the Expert called jointly by the Brima Defence, Kamara Defence and Kanu Defence. Her Report was admitted as Defence Exhibit D 38. 9. I fĳind Dr. Thorsen’s report and evidence of little relevance to the issue at hand given the fact that she declined to write on the topic requested of her by the Defence, and instead chose to write on a topic unrelated to the phenomenon of “forced marriage” within the Sierra Leone Conflict. I do however fĳind her reasons for declining to undertake the research in that form quite instructive.3462 As an expert in the fĳield of traditional customary or arranged marriages in a sociological context, she makes a clear distinction between the notion of customary or “forced marriages” as understood from a rights-based perspective on the one hand, and the coercion of women into being ‘bush wives’ during the civil war in Sierra Leone, on the other. She was not willing to make straightforward linkages or comparisons between the two because in her opinion it would be inappropriate and misleading to do so. 10. In this regard I fully agree with Dr. Thorsen that “forced marriages” or arranged or inheritance marriages, from a human rights perspective as applied in the framework of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), are not to be equated to or confused with a situation

3461 “Expert Report on the phenomenon of “Forced Marriage” in the context of the Sierra Leone Conflict, and more specially, in the context of the trials against the RUF and AFRC Accused only”: May 2005, Prosecution Exhibit P 32. 3462 Dr. Thorsen stated that she was requested to “carry out a research on the concept of forced marriage in the West African region, the purpose of which was to outline the history and practice of forced marriage in the region and possibly also the way in which this practice is embedded in local culture and practice.” She explains in the introduction to her report that she declined to carry out the research in that form because she was “concerned with the long-term consequences of making straightforward links between complex social practices of arranging marriages between kin groups, international conceptualisations of ‘forced marriages’ and the coercion of women into being bush wives during the civil war in Sierra Leone.” 1736 part iv during armed conflict, where combatants routinely abduct women and force them to become ‘wives,’ essentially obliging them to cook, clean, wash clothes and have sex against their will (and often as a consequence to bear children) all of which are stereotyped, gender-specifĳic forms of labour. The latter relationships, whereby no marriage transactions have been made or ceremonies held, mimic peacetime situations in which forced marriage and expectation of free female labour are common practice. This stereotyped perception of women persists in war-time and puts such women at great risk of abduction and violence. 11. In contrast, I do fĳind the Report and testimony of Mrs. Zainab Bangura, the Prosecution Expert relevant and very instructive on the subject of forced “marriage” within the Sierra Leone Conflict.3463 Like Dr. Thorsen, Mrs Bangura also draws a clear distinction between the traditional or customary practice of early or arranged marriages where young girls or minors are forced by their parents or family into early marriages in times of peace, on the one hand; and the phenomenon of forced “marriage” during the Sierra Leone conflict, on the other. She observes that during the whole process of early or arranged marriage in times of peace, the consent and participation of both parents and families is paramount and the union is marked by religious or traditional ceremonies. She warns that this type of union is not to be equated to or confused with “forced marriage” during armed conflict. She writes in her Report: “The fundamental diffference between an early or arranged marriage in times of peace and a forced ‘marriage’ during the war is that family members were not involved in the arrangement of the latter so-called ‘marriage,’ no offfĳicial ceremony of any form took place and nor was the consent of the parents sought. Instead, girls were forcefully abducted from their homes, schools or hiding places and taken to the bush where they were informed that they had become ‘wives.’ Moreover, rebel ‘husbands’ did not show their ‘bush wives’ respect. They were constantly flogged, physically and psychologically abused and their husbands always had the fĳinal say. Because it was a marriage without consent and no intermediaries were present, the ‘wives’ had no protection or family support they could count on. Some of these ‘bush wives’ actually lost their parents who were trying to prevent their abduction. Forced marriage during the conflict had no security. The ‘husband’ could abandon his ‘wife’ whenever he wanted to and get a new one whenever he felt like it. The ‘wives’ were led to believe that their ‘husbands’ had the right to kill them, without fear of any repercussions. There were no formal or informal institutions available to address the brutality of the ‘husbands.’ The ‘bush wife’ was at the mercy of her rebel husband and had no justice neither could she seek redress. Most of their children did not go to school.”

3463 Bangura’s primary sources of information included in-depth interviews of over 100 former victims of ‘forced marriage’ and commonly called ‘bush wives’ from locations mentioned in the Indictment as crime bases, including the Districts of Kailahun, Kenema Kono, and Freetown; and interviews of ex-combatants, parents of ‘bush wives’ as well as local traditional and religious leaders. See also Transcript, 3 October 2005, pp. 35–37. judgments 1737

12. From the opinion of both Experts, it is clear that in understanding and characterising the phenomenon of ‘forced marriage’ in the Sierra Leone conflict, a clear distinction should be drawn between traditional or religious marital unions involving minors (early or arranged marriages), during times of peace; and the forceful abduction and holding in captivity of women and girls (‘bush wives’) against their will, for purposes of sexual gratifĳication of their ‘bush husbands’ and for gender-specifĳic forms of labour including cooking, cleaning, washing clothes (conjugal duties). In my view, while the former is proscribed as a violation of human rights under international human rights instruments or treaties like CEDAW, it is not recognised as a crime in International Humanitarian law. The latter conduct on the other hand, is clearly criminal in nature and is liable to attract prosecution.

2. Characterisation of ‘forced marriage’ during armed conflict as a crime under International Humanitarian law 13. In order to assist the Trial Chamber’s understanding and characterisation of ‘forced marriage’ in the Sierra Leone conflict as a crime, Mrs. Bangura described the relationship between the abductor or ‘bush husband’ and the abductee or ‘bush wife’ and the expectations that flowed from that relationship in the following terms: “The conflict in Sierra Leone afffected women directly in diverse ways. In addition to being displaced, raped or used as secondary combatants, women and girls were also used as spies, sex slaves, carriers of looted goods and smuggled weapons. Women suf- fered multiple traumas during the war. They were physically and psychologically abused. However, the most devastating efffect on women of the war was the phenomenon called ‘bush wife,’ rebel wife or jungle wife. This was a phenomenon adopted by rebels whereby young girls or women were captured or abducted and forcibly taken as wives [….]The use of the term ‘wife’ by the perpetrator was deliberate and strategic. The word ‘wife’ demonstrated a rebel’s control over a woman. His psychological manipulations of her feelings rendered her unable to deny him his wishes. ‘Wife’ showed that the woman belonged to a man and could not be touched by another. By calling a woman ‘wife,’ the man or ‘husband’ openly staked his claim and she was not allowed to have sex with any other person. If she did, she would be deemed unfaithful and the penalty was severe beating or death. Similarly if the ‘wife’ were raped by another rebel, his act was punishable by death.” 14. Regarding the role expected of a ‘bush wife’ Mrs. Bangura writes: “ ‘Bush wives’ were expected to carry out all the functions of a wife and more. A ‘bush wife’ carried her ‘husband’s’ possessions on her head and trekked across the countryside with him; she was expected to gratify her ‘husband’s’ sexual wishes whenever he so desired without question; she cooked for him when food was available, did his laundry and generally protected his possessions in his absence; she was expected to show undying loyalty to her husband for his protection and reward him with ‘love and afffection’; she was not expected to attempt to escape as this was deemed disloyal. 1738 part iv

Punishment for disloyalty was always severe and so, women were led to believe, in most cases would be met with death.” 15. On the underlying element of sexual abuse as an inherent component of forced ‘marriage’ Mrs. Bangura stated that all the victims or ‘bush wives’ interviewed, without exception, admitted to having been repeatedly raped or sexually abused or molested by their ‘rebel husbands’ while in captivity. She writes: “ ‘Bush wives’ were constantly sexually abused, physically battered during and after pregnancies, and psychologically terrorised by their husbands, who thereby demonstrated their control over their wives. Physically, most of these girls experienced miscarriages, and received no medical attention at the time. They bled excessively because they lived in some of the remotest parts of the country with little or no access to medical services. Some now experience diverse medical problems such as severe stomach pains which they are reluctant to discuss; some have had their uterus removed; menstrual cycles are irregular; some were infected with sexually transmitted diseases and others tested HIV positive.”

D. Conclusion 16. From the above excerpts of the Report, as well as the oral evidence of numerous Prosecution witnesses that testifĳied before the Trial Chamber, I am of the fĳirm view that the phenomenon of forced ‘marriage’ during the Sierra Leone conflict bears all the hallmarks or characteristics of the crime against humanity of Sexual Slavery. The general and specifĳic elements of the crime against humanity of Sexual Slavery are satisfĳied in that forced ‘marriage’ invariably occurred as part of a widespread or systematic attack on the civilian population in Sierra Leone. In addition- (i) The ‘bush husband’ exercised any or all the powers attaching to the right of ownership over his ‘bush wife’ whereby not only was she was held under captivity and not at liberty to leave but, in addition, she was forced to render gender-specifĳic forms of labour (conjugal duties) including cooking, cleaning, washing clothes and carrying loads for him, for no genuine reward. (ii) Invariably, the ‘bush husband’ regularly subjected his ‘bush wife’ to sexual intercourse, often without her genuine consent and to the exclusion of all other persons; (iii) The ‘bush husband’ abducted and forcibly kept his ‘bush wife’ in captivity and sexual servitude with the intention of holding her indefĳinitely in that state or in the reasonable knowledge that it was likely to occur.3464

3464 See the elements of the crime of Sexual Slavery as stated by the Trial Chamber in the Applicable Law Chapter of the Judgement. judgments 1739

17. Neither the Prosecution nor the Defence in their respective submissions draw the same conclusions from Mrs. Bangura’s Report.3465 Interestingly, the Prosecution who called Mrs Bangura as its Expert witness on the subject did not once, refer to her Report or testimony in support of its case, insisting instead, that the crime of ‘forced marriage’ is subsumed under the crime against humanity of “other inhumane act,” a view the Trial Chamber has dismissed. 18. I would conclude this Separate Concurring Opinion by reiterating that I fully endorse the Trial Chamber’s fĳinding that the crime of “forced marriage” is completely subsumed in the crime against humanity 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.” I further endorse the Trial Chamber’s decision, in the interests of justice, to consider the overwhelming body of evidence of sexual slavery under Count 9 (Outrages upon Personal Dignity). Although it would ideally have been more appropriate to consider the evidence of forced marriage under a count of Sexual Slavery, that option does not arise in this case as Count 7 of the Indictment was dismissed as bad for duplicity. To throw out the overwhelming body of evidence of ‘forced marriage’ as a consequence of the Prosecution’s procedural error would, in my opinion, be doing a great injustice to the hundreds of victims of ‘forced marriage’ who look to this Court for redress. Dated this 20th June 2007, at Freetown Sierra Leone

Justice Julia Sebutinde

3465 The Parties respective submissions on ‘forced marriage’ are outlined in the Applicable Law Chapter of the Judgement. 1740 part iv

PARTLY DISSENTING OPINION OF JUSTICE DOHERTY ON COUNT 7 (SEXUAL SLAVERY) AND COUNT 8 (‘FORCED MARRIAGES’)

1. I agree with my learned colleagues on the fĳindings of the Judgement on Counts 1 to 6 and 9 to 14. However, my concerned about their fĳindings on Counts 7 and 8 compels me to write this dissenting opinion on those counts.

A. Count 7

2. The majority rejects Count 7 as bad for duplicity and my learned colleagues provide compelling arguments for such a conclusion. However, in my respectful opinion, their reasons are formalistic and disregard the fundamental issue, which is whether the right of the Accused to be informed promptly and in detail about the nature and the cause of the charges against them has been violated.3466 3. I share the majority’s view that the second limb of Count 7 viz “other forms of sexual violence” was not particularised by the Prosecution. I do not, with respect, agree that if Count 7 as pleaded is duplicitous, the Trial Chamber must dismiss it in its entirety. 4. The history of the challenges to the Indictments is detailed in Chapter II of this Judgement and I do not need to repeat it here.3467 5. In their Final Briefs, the Accused Kamara and Brima submit, for the fĳirst time and in almost identical terms, that Count 7 offfends the rule against duplicity. Counsel rely on the decision of the Prosecutor v. Karemera to support the general principle that the allegations within an indictment are defective if they are not sufffĳiciently clear and precise to enable an accused to fully understand the nature and the cause of the charges against him.3468 Counsel further cite the Separate Opinion of Honourable Justice Sebutinde in the Rule 98 Decision, arguing that Count 7 in its current state has made it difffĳicult for the Accused Kamara and Brima to “fully understand the nature and the cause of the charges against him.”3469 6. Despite this submission, neither Counsel made any applications relating to Count 7 before opening the Defence case. Instead the Defence presented evidence on all counts, including Count 7. 7. The Prosecution did not deal with the issue of duplicity in Count 7 of its Final Brief but orally addressed the Trial Chamber in Closing Arguments, stating “[…]

3466 This right is found in Article 17 of the Statute of the Special Court. 3467 See Alleged Defects in the Form of the Indictment, supra. 3468 Prosecutor v. Karemera ICTR-98–44-T Decision on the Defence Motion, pursuant to Rule 72 of Rules of Procedure and Evidence, pertaining to, inter alia, lack of jurisdiction and defects in the form of the Indictment. 3469 Brima Final Brief para. 149; Kamara Final Brief para. 96. judgments 1741 we say, barring exceptional circumstances, and the Defence has not demonstrated any, and barring a showing of actual prejudice to the Defence, and, we would add, barring and showing that this has been raised at the earliest opportunity, we would submit that it is far too late to raise this at this stage of the proceedings […] but as Judge Sebutinde pointed out in paragraph 9 of her Separate Opinion in the Rule 98 Decision, no prejudice to the Defence has been established arising out of this.”3470 8. The rule against duplicity is one of elementary fairness. The accused must know the nature of the case against him. Hence the rule evolved that a count must allege one offfence and a count alleging more than one offfence should be quashed before arraignment. Objections on the ground of duplicity are normally made prior to the indictment being put but can be made in the course of the hearing. As stated in Blackstone’s on Criminal Practice, “rejection of a Defence motion to quash a count bad for duplicity is a good ground of appeal, although it may be open to the Court of Appeal to apply the proviso and dismiss the appeal if there has been no miscarriage of justice.”3471 9. The learned author further noted “that although the objection can be taken at a later stage, the Court of the Appeal has disapproved of the Defence postponing the application to quash for purely tactical reasons.”3472 10. Whilst I do have no doubt of the fundamental nature of the accused’s right to be informed of the nature and cause of the charge against him, the defence is under a corresponding duty to raise the issue prior to the commencement of trial or at the earliest opportunity thereafter. I do not consider it to be in the interests of justice to allow the accused to invoke this right to quash an indictment after the case has closed, without showing that he was materially prejudiced. This is particularly so in cases such as the present, when the Accused were not only silent on the issue throughout the trial, but proceeded to adduce evidence and defended themselves on the charge. 11. I am accordingly obliged to disagree with my learned colleagues, who have held that justice in this case is met by dismissing Count 7 in its entirety. As stated by the Trial Chamber in Prosecutor v. Kupreškić, “[…] the efffĳicient discharge of the Tribunal’s functions in the interest of justice warrants the conclusion that any possible errors of the Prosecution should not stultify criminal proceedings whenever a case nevertheless appears to have been made by the Prosecution and its possible flaws in the formulation of the charge are not such as to impair or curtail the rights of the Defence.”3473

3470 Transcript, 7 December 2006 p. 61. 3471 Blackstone’s Criminal Practice, 2002 Edition, para. D10.16. 3472 Blackstone’s Criminal Practice, para. D10.23. 3473 Kupreškić Trial Judgement, para. 741. 1742 part iv

12. On the facts and submissions before me, I do not consider that there has been a miscarriage of justice. I would not have dismissed the count but would have considered evidence relating to sexual slavery only. 13. I regret that the very short time available has precluded me from more fully addressing this issue.

B. Count 8

14. I dissent on the majority decision on Count 8, other inhumane acts, particularised as forced marriage. The majority, after considered deliberations, held that the evidence pleaded by the Prosecution is completely subsumed by the crime of sexual slavery and accordingly dismissed Count 8 for redundancy. Having considered the evidence, I respectfully disagree. 15. The majority, in adopting this approach, has consequently declined to determine whether ‘forced marriage’ is of sufffĳicient gravity to meet the requirements of an ‘other inhumane act’ as per Article 2(i) of the Statute.

1. Submissions of the Parties 16. In its Final Brief, the Prosecution undertook a comprehensive review of the evidence which in its view proves that the phenomenon of forced marriage is an ‘other inhumane act.’ In particular, the Prosecution considers the factual elements of forced marriage to include sexual slavery in a marital type union; the imposition of conjugal status by coercion or threat; forced labour; reduction to a servile status; the practical impossibility of seeking familial assistance or attempting escape and the widespread discrimination against bush wives which fuels prejudice against them in the community. 17. The Prosecution submits that the Trial Chamber “ought to look beyond the label and examine the substance of the relationships between the “wives” and their captors,”3474 namely the coercive environment in which these women were placed, which made genuine consent impossible and which exposed the women to severe mental sufffering.3475 The Prosecution submit that the crime of forced marriage as an other inhumane act “consists of words or other conduct intended to confer a status of marriage by force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power against

3474 Prosecution Final Brief, para. 1876. 3475 Prosecution Final Brief, paras. 1876–1888. judgments 1743 the victim or by taking advantage of a coercive environment, with the intention of conferring the status of marriage.”3476 18. The Kamara Defence submits that Count 8 is “redundant, defective and violates against [sic] the rule of multiplicity of counts […]”3477 or alternatively, on a review of the evidence, that “Count 8 lacks evidential merit and should not be sustained even from a factual notion.”3478 19. The Brima Defence submits that no evidence was adduced to show that the Accused Brima was individually responsible for the crimes charged under Counts 6–9 or bears the greatest responsibility for those crimes. The Brima Defence also appear to suggest that the allegations relating to Count 8 should be dealt with under Count 11.3479 20. The Kanu Defence submit that forcing a woman to enter a marital type relationship is not of ‘a gravity similar to any other act referred to in Article 2(a) to (h) of the Statute.’ In support of this submission, the Kanu Defence refer to “the more nuanced and complicated relation” between ‘husband’ and ‘wife’ discussed by Defence Expert Dr. Thorsen.3480 The Kanu Defence question the expertise of the Prosecution Expert and submit that her fĳindings are flawed and should not be given any weight.3481 The Kanu Defence, after reviewing some examples of witness testimony, submit that no conviction can be entered for Count 7 and 8. 21. The Trial Chamber adopted the following elements of the crime against humanity of “other inhumane acts” as charged under Count 11, namely that: (a) The perpetrator inflicted great sufffering, or serious injury to body or to mental or physical health, by means of an inhumane act; (b) The act was of a gravity similar to the acts referred to in Article 2(a) to (h) of the Statute; (c) The perpetrator was aware of the factual circumstances that established the character or gravity of the act; (d) The act was committed as part of a widespread or systematic attack directed against a civilian population; and (e) The perpetrator knew or had reason to know that his acts or omissions constituted part of a widespread or systematic attack directed against a civilian population.3482

3476 Prosecution Final Brief, paras. 1009–1012. 3477 Kamara Final Brief, para. 241. 3478 Kamara Final Brief para. 244. 3479 Brima Final Brief, paras. 150–152. 3480 Exhibit D-38, Dr. Dorte Thorsen, “Expert Report on Forced Marriages” [hereinafter “Thorsen Report”]. 3481 Kanu Final Brief, paras. 48, 50. 3482 Rule 98 Decision, paras. 112, 174. 1744 part iv

2. Expert Evidence 22. Both the Prosecution and Defence called expert evidence, tendering reports by Mrs. Zainab Bangura and Ms Dorte Thorsen respectively.3483 23. Mrs. Bangura in her report examined the traditional patterns of marriage in Sierra Leone, concluding that “traditionally in Sierra Leone, young ladies have been forced into early marriages by their parents. They have had no say in accepting or rejecting such marriages which were mostly arranged. Various reasons have underlain this practice.”3484 24. She notes that such early or arranged marriages are no longer common as girls have become more aware of their options and Islam, the dominant religion amongst the majority of the illiterate population, preaches against forced marriages. Increasingly, young men and women marry a person of their choice, particularly in urban areas. 25. Dr. Thorsen declined to undertake research on the concept of forced marriage in the West African region. The Defence expert did not interview any women who had been subject to a forced marriage during the period of the Indictment or any person who had undergone a traditional arranged marriage in Sierra Leone, but reviewed other research and writings about both traditional and forced marriages in Sierra Leone. Her report shows that girls and young women are commonly coerced into arranged marriage by the bride and groom’s kin and “seniors.”3485 The practice is not universal and many men and women marry a person of their own choice. 26. The experts, in both their written and oral evidence, stressed that arranged marriages entail the involvement and agreement of the families and seniors of the prospective bride and groom, and in particular the approval of the family of the female spouse, as well as the fulfĳilment of certain ceremonies and rituals relating to the marriage. 27. The Prosecution Expert had interviewed women and girls who had been “married” to combatants in the course of the conflict. The Prosecution Expert

3483 Exhibit P-32, Mrs. Zainab Bangura, “Expert Report on the Phenomenon of “Forced Marriage” in the context of the Conflict in Sierra Leone and, more specifĳically, in the context of the Trials against the RUF and AFRC Accused only” [hereinafter “Bangura Report”]; exhibit D-38, Thorsen Report. 3484 Exhibit P-32, CMS p. 15266. 3485 The expert declined “founded on a deep concern with the longer-term consequences of making straightforward links between complex social practices of arranging marriages between kin groups, international conceptualisations of “forced marriages,” and the coercion of women into being “bush wives” during the civil war in Sierra Leone” and because “I am worried that the requested research with its focus on “forced marriage” in West Africa a general view on rural population as backwards […] this is not a view I would want to support”: Exhibit D. 38, CMS p. 18861. judgments 1745 found that all the girls and women interviewed for the report had been abducted and informed by their abductors that they had become ‘wives.’ Unsurprisingly, in such circumstances, the woman or girl’s family was not involved in the arrangement and the consent of her parents or guardians was not sought. 28. No offfĳicial ceremony of any kind took place. 29. Women and girls who were parties to these marriages became know as “bush wives” or “rebel wives.” The status of bush wife or rebel wife meant that the girl ‘belonged’ to one person and was not required to have sex with diffferent rebels. Forced marriage became a means of survival for most girls in the bush. ‘Bush wives’ were spared gang rapes, were ensured regular meals and were protected by their ‘husbands.’ However, their situation was precarious. When the ‘husband’ decided to take a second ‘bush wife,’ the fĳirst one was rejected and she no longer enjoyed his protection.3486 30. The Prosecution Expert Report states that many ‘bush wives’ became pregnant and were forced to give birth and rear children to the men that had taken them by force.3487 Miscarriages were common and medical attention limited or unavailable. Some women were infected by sexually transmitted diseases or became HIV positive. 31. A ‘bush wife’ was obliged to work for her ‘husband,’ carrying his possessions on her head for long distances across the countryside, cooking and doing his laundry and generally minding his possessions in his absence. The ‘wife’ was expected to gratify his sexual wishes whenever he so desired without question. 32. In return for his protection, a ‘bush wife’ was expected to show undying loyalty to her ‘husband’ and reward him with ‘love’ and afffection. Any attempt to escape was deemed disloyal. Punishment for disloyalty was always severe and in most cases would be met by death, or so women were led to believe.3488 33. Most of the “bush wives” interviewed by the Prosecution expert experienced long-term stigmatisation and were rejected by their families and/or communities. They were often unable to return to their school or community for fear of reprisals, due to a widespread belief that any person who lives with a rebel leader for more than a day becomes tainted and acquires ‘rebel behaviour.’ 34. I note the expert opinion and the evidence that the phenomenon of forced marriage was widespread throughout Sierra Leone in the period between 14 February 1998 and 28 February 1999.

3486 Exhibit P-32, CMS p. 15271. This is also recorded in exhibit P-53, Human Rights Watch Report, “We’ll Kill you if you Cry, Sexual Violence in the Sierra Leone Conflict” [hereinafter “HRW Report”]. 3487 Exhibit P-53, HRW Report, CMS p. 15753. 3488 Exhibit P-53, HRW Report, CMS p. 14492. 1746 part iv

35. The Defence expert comprehensively reviewed the rights and duties arising out of traditional arranged marriages and the rights, duties and status involved in such marriage. 36. Having considered the description of traditional marriage in parts of West Africa given by the Defence expert and the evidence of both the Prosecution expert and the witnesses, I am of the view that the abduction of girls and their coercion into marital unions, as described by the Prosecution expert and by witnesses, is not the same nor comparable to arranged or traditional marriages. In particular the consent of the girl and/or her parents are not sought, there is no involvement of the family of either “spouse” and there is no ceremony or ritual fulfĳilled. Hence I do not agree with the Kanu Defence submission that the phenomenon of “bush wives” is a replication of customary marriage.3489 On the evidence of traditional marriages described by both experts, I fĳind the phenomenon of forced marriage has little or no similarity to traditional marriage.

3. Witness Evidence 37. Witnesses were called by both the Prosecution and Defence, who gave evidence of being abducted and forced into marriage. Given the detailed recount of their testimony in the majority Judgement,3490 I will give only a brief synopsis of particular witnesses. 38. Witness TF1-209 was repeatedly raped in Koinadugu Town over a period of three months by a member of the AFRC named ‘Jabie.’ ‘Jabie’ forced her to work for him, namely cooking and laundering; and made her into his “wife.”3491 39. Witnesses TF1-334, and TF1-033, gave evidence that women captured in Bombali District were brought to Camp Rosos and subjected to sexual slavery by members of the AFRC. The captured women were distributed to the members of the AFRC to be their “wives” and were detained with the troops until the AFRC invaded Freetown. The evidence of the witnesses show that the members of the AFRC made the captured women into their “wives.” 40. Witness TF1-023 gave evidence of being abducted at gun-point during the AFRC invasion of Freetown in 1999. The witness was forcibly abducted, given against her will to a Colonel as his “wife,” she was raped by him and was detained and forced to move with the troops. 41. I note that in evidence in chief, witness TF1-023 stated that she was not forced to do “anything.” She clarifĳied on cross-examination that she was not forced to do

3489 Kanu Final Brief, para. 55. 3490 See Factual Findings, Outrages on Personal Dignity, supra. 3491 TF1-209, Transcript 7 July 2006, p. 38. judgments 1747 any work; she was not forced to cook or clean, for example;3492 and other people respected her because of her position of “wife” to a commander. The witness testi- fĳied that “people of lower ranks” deferentially called her “De Mammy” because of the status of Colonel.3493 Whilst the status of “wife” conferred upon the Witness is a relative benefĳit as compared to other women who may have been forcibly married to persons of lower ranks, in my opinion this in no way diminishes the seriousness of the acts committed against the witness. 42. Witness TF1- 094 gave evidence that she was abducted from her village by ‘Andrew’ who detained her and forced her to be his ‘wife.’ The witness stated that when she became pregnant, ‘Andrew’ told her not to abort the pregnancy and offfered to marry her. I agree with the Prosecution that this indicates that they were not legally married, and I would have found that this has no impact on the proof of the crime of forced marriage which is concerned with the mental and physical trauma of being forced unwillingly into a marital arrangement, the stigma associated with being labelled a rebel ‘wife’ and the corresponding rejection by the community. 43. Prosecution witness TF1-085 was forcibly abducted and taken as the ‘wife’ of ‘Colonel Z’ in Port Loko District in the early months of 1999. The witness became pregnant and miscarried twice as a result of the rapes. In Masiaka, ‘Colonel Z’ “married” the witness in a ceremony, although I consider 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 ‘Colonel Z,’ but she was detained against her will for several months and punished and threatened with death by him when she tried to escape. 44. Prosecution witness TF1-282 gave evidence that she was captured and brought to the troops then forced into marriage by a rebel whose name was given in closed session [hereinafter “the named rebel”] in early 1999 in Port Loko District. The named rebel made the witness into his “wife.” In Masiaka, the named rebel “married” the witness in a ceremony, although I consider 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. 45. I have also taken into account the experts’ testimonies that some of the victims may remain in the forced marriage after the war for various reasons including inability to fĳind an alternative life style, an obligation to rear the children born of

3492 TF1-023, Transcript 9 March 2005, p. 57; Transcript 11 November 2005, p. 13. 3493 TF1-023, Transcript 9 March 2005, pp. 57–58. 1748 part iv the forced marriage, rejection by their family or community or acceptance of their lot. However, I am of the opinion that a decision to remain in the forced marriage or its transformation into a consensual situation does not retroactively negate the original criminality of the act. 46. The evidence shows ‘forced marriage’ in the context of the armed conflict of Sierra Leone 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 moved through the various Districts. The girls and women, without their consent, were taken as ‘wives’ by individual rebels.3494 Some girls and women forced into marriage benefĳited from their ‘marriage’ insofar as their ownership by a particular rebel may have offfered them some protection from rape and other forms of abuse by the other rebels. However, given the overwhelming environment of coercion, I consider this to be a relative benefĳit or a means of survival, which cannot be understood as indicative of consent or the exercise of autonomous power within the relationship by the victims and which in no way diminishes the severity of the acts.3495 47. Women and girls subjected to ‘forced marriage’ are often very young, and thus particularly vulnerable. Their vulnerability is heightened by their removal from their families and placement in a context of physical and sexual violence.3496 48. Serious psychological and moral injury follows ‘forced marriage.’ Women and girls are forced to associate with and in some cases live together with men whom they may fear or despise. Further, the label ‘wife’ may stigmatise the victims and lead to their rejection by their families and community, negatively impacting their ability to reintegrate into society and thereby prolonging their mental trauma. 49. On the evidence I fĳind that the intention of the “husband” was to oblige the victim to work and care for him and his property, to fulfĳil his sexual needs, remain faithful and loyal to him and to bear children if the “wife” became pregnant. In return, he would protect the “wife” from rape by other men, give her food when food was available and, depending on his status, confer a corresponding status upon the wife. In efffect, these are rights and obligations of the type referred to by the Defence expert as being involved in traditional marriages but in there is no agreement of the family or kin of the “wife” and the status is forced by violence or coercion upon the female partner.

3494 See Exhibit P-32, Bangura Report, pp. 13, 15. 3495 Exhibit D-38, Thorsen Report, pp. 16–17. 3496 Exhibit P-32, Bangura Report, p. 13. judgments 1749

50. I would therefore distinguish the phenomenon from sexual slavery. The evidence of witnesses shows that victims had no protection from rape and were available to any rebel but were not stigmatised as “rebel wives” or “bush wives.” 51. Additionally, I am satisfĳied on the basis of the testimony of the Prosecution expert witness that the use of the term ‘wife’ is indicative of forced marital status which had lasting and serious impacts on the victims. I fĳind the label of ‘wife’ to a rebel caused mental trauma, stigmatised the victims and negatively impacted their ability to reintegrate into their communities.3497 I would therefore have found that the actus reus and mens rea of an Other Inhumane Act, Forced Marriage, are satisfĳied with regards to the foregoing evidence. 52. I reiterate that the conduct contemplated as “forced marriage” does not necessarily involve elements of physical violence such as abduction, enslavement or rape, although the presence of these elements may go to proof of the lack of consent of the victim. The crime is concerned primarily with the mental and moral sufffering of the victim. As stated by the Trial Chamber in Akayesu: An attack may also be non violent in nature, like imposing a system of apartheid, which is declared a crime against humanity in Article 1 of the Apartheid Convention of 1973, or exerting pressure on the population to act in a particular manner, may come under the purview of an attack, if orchestrated on a massive scale or in a systematic manner.3498 53. The crucial element of ‘forced marriage’ is the imposition, by threat or physical force arising from the perpetrator’s words or other conduct, of a forced conjugal association by the perpetrator over the victim. 54. As set out in the majority Judgement, the crime of ‘other inhumane acts’ exists as a residual category so that the Statute’s application is not unduly limited with regard to crimes against humanity.3499 When presented with pleadings which suggest that certain conduct falls within this category, the fundamental question which falls to the Trial Chamber is whether such conduct inflicts great sufffering, or serious injury to body or to mental or physical health, and is of a gravity similar to the acts referred to in Article 2(a) to (h) of the Statute. 55. In assessing the seriousness of an act or omission the factual circumstances must be taken into account. The assessment includes the nature of the act or omission which forms the factual basis of the charges, the context in which it occurred, the personal circumstances of the victim including sex, age, and health as well as the mental, physical and moral efffect upon the victim.3500

3497 Exhibit P-32, Bangura Report, pp. 13, 16–20. 3498 Akayesu Trial Judgement, para. 581. 3499 See, for example, Stakić Appeals Judgement, paras. 313–316. 3500 Kunarac Trial Judgement, para. 501. 1750 part iv

56. As the sufffering of the alleged victim is inherently subjective, the personal circumstances of the victim must include the cultural environment in which the act or omission took place and in which the efffects of the act are felt. 57. I am satisfĳied on the evidence that the conduct considered as ‘forced marriage’ results in serious harm to the mental and physical health of the victim and meets this threshold.

4. Forced Marriages as a Crime against Humanity 58. Forced marriage as a crime against humanity has not been specifĳied in any treaty provision nor recognised as a separate crime by the other International Tribunals. Rule 72bis of the Rules of Procedure and Evidence permits the Court to consider, ‘where appropriate, applicable treaties and principles and rules of international law customary law,’ as well as ‘general principles of law derived from national laws of legal systems of the world […] provided those principles are not inconsistent with the Statute, and the Agreement, and with the international customary law and internationally recognised norms and standards.’ 59. Professor Werle considered that As part of the international order, international criminal law originates from the same legal sources as international law. These include international treaties, customary international law, and general principles of law recognized by the world’s major legal systems. Decisions of international courts and international legal doctrine can be used not as sources of law, but subsidiary means for determining the law. Decisions of national courts apply international law can also be referred to here.3501 60. Cassese, when reviewing the general principles of international law and in particular international criminal law, found: General principles of international law consist of principles inherent in the international legal system. Hence, their identifĳication does not require an in-depth comparative survey of all major systems of the world, but can be carried out by way of generalization and induction from the main features of the international legal order.3502 He further stated that clearly, a principle of criminal law may belong to this class only if a court fĳinds that it is shared by common law and civil law systems as well as other legal systems such as those of the Islamic world, some Asian countries such as China and Japan, and the African continent.3503

3501 Gerhard Werle, Principles of International Criminal Law, TMC Asser Press (2005), para. 123. 3502 Antonio Cassese, International Criminal Law, Oxford University Press (2003), p. 31. 3503 Antonio Cassese, International Criminal Law, Oxford University Press (2003), p. 32. judgments 1751

61. Domestic law in many common and civil law jurisdictions criminalises the abduction of any person or any female person with intent to have that person marry. For example, the Penal Code of Nigeria provides: Any person who, with the intent to marry or carnally know a female of any age, or to cause her to be married, or carnally known by any other person, takes her away, or detains her, against her will, is guilty of a felony, and is liable to imprisonment for seven years. 62. Similar penal laws have been enacted in Bulgaria,3504 Papua New Guinea,3505 India,3506 Singapore,3507 Indonesia,3508 Venezuela,3509 and Brazil.3510

5. Non-Criminal International Treaties 63. International treaties and conventions prohibit marriage without the consent of the parties. Article 16(2) of the Universal Declaration of Human Rights declares, “[m]arriage shall be entered into only with the free and full consent of the intending spouses.”3511 The Declaration is not a binding treaty but member states of the United Nations are called upon to publicise and disseminate it. Sierra Leone became a member State of the United Nations on 27 September 1961. 64. The International Covenant of Civil and Political Rights echoes this language at Article 23(2).3512 Likewise, Article 5.1, 6(a) and 7 of the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) require State Parties to recognize the rights of women to choose a spouse and to enter into a marriage only with their free and full consent. Sierra Leone signed this convention on 21 September 1988 and ratifĳied it on 11 November 1988. 65. In addition, the Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriage Article 1(1) provides:

No marriage shall be legally entered into without the full and free consent of both parties, such consent to be expressed by them in person after due publicity and in the presence of the authority competent to solemnize the marriage and of witnesses, as prescribed by law.

3504 Article 177(2), Bulgarian Penal Code. 3505 S. 238, Criminal Code of Papau Guinea. 3506 Article 366, Penal Code of India. 3507 Article 366, Penal Code of Singapore. 3508 Article 332, Penal Code of Indonesia. 3509 Article 384 Codigo Penal de Venezuela. 3510 Article 219–221 Codigo Penal, Brazil. 3511 Universal Declaration of Human Rights, GA Res, 217(III), UN GAOR, 3rd Sess., Supp. No. 13, UN Doc. A/810 (1948) 71 [UDHR]. 3512 International Covenant on Civil and Political Rights, 19 December 1966, 999, U.N.T.S. 171, arts. 9–14, entered into force 23 March 1976, accession by Sierra Leone 23 August 1996 [ICCPR]. 1752 part iv

66. Regional treaties prohibit discrimination against women. Article 18(3) of the African (Banjul) Charter on Human and Peoples’ Rights, ratifĳied by Sierra Leone on 21 September 1983, provides that “[t]he State shall ensure the elimination of every discrimination against women and also ensure the protection of the rights of the woman and the child as stipulated in international conventions and declarations.” 67. The Protocol to the African Charter on the Rights of Women on Africa (signed but not ratifĳied by Sierra Leone) provides in Article 11(3): State Parties undertake to protect asylum seeking women, refugees, returnees and internally displaced persons, against all forms of violence, rape and other forms of sexual exploitation, and to ensure that such acts are considered war crimes, genocide, and/or crimes against humanity and that their perpetrators are brought to justice before a competent criminal jurisdiction.

6. Decisions of Other Tribunals 68. In Prosecutor v. Kvočka et. al, the ICTY ruled “[…] sexual violence is broader than rape and includes such crimes as sexual slavery or molestation,”3513 giving as examples: such crimes as sexual mutilation, forced marriage, and forced abortion as well as the gender related crimes explicitly listed in the ICC Statute as war crimes and crimes against humanity, namely “rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization” and other similar forms of violence.3514

7. Deliberations 69. I consider that international treaties and domestic law provide that marriage is a relationship founded on the mutual consent of both spouses. In ‘forced marriage’ the consent of the victim is absent. In the absence of such consent, the victim is forced into a relationship of a conjugal nature with the perpetrator thereby subsuming the victim’s will and undermining the victim’s exercise of their right to self-determination. 70. I reiterate that the conduct contemplated as ‘forced marriage’ does not necessarily involve elements of physical violence such as abduction, enslavement or rape, although the presence of these elements may go to prove the lack of consent of the victim. The crime is concerned primarily with the mental and moral sufffering of the victim.

3513 Kvočka Trial Judgment, para. 180. 3514 Kvočka Trial Judgement, para. 180, citing the Rome Statute of the International Criminal Court, UN Doc A/CONF.183/9, 17 July 1998, at Art. 7(1)(g), Art. 8(2)(b)(xxii), and Art. 8(2)(e)(vi). judgments 1753

8. Conclusion 71. By vitiating the will of one party and forcing him or her to enter into and remain in a marital union the victim is subject to physical and mental sufffering the phenomenon of forced marriage transgresses the internationally accepted conventions that both parties must consent to a marriage. It is contrary to principles of criminal law shared by common law and civil law systems alike, as well as Islamic law and the legal systems of some Asian and African states. I consider, on the evidence before me, that the act of forced marriage is of similar gravity and nature to the other enumerated crimes against humanity and that the act causes serious bodily or mental harm. Accordingly, I consider and hold that forced marriage constitutes a crime against humanity. Dated this 20th day of June 2007, at Freetown, Sierra Leone.

Justice Teresa Doherty 1754 part iv

ANNEX A: PROCEDURAL HISTORY

A. Indictment, Arrest, Transfer and Initial Appearance 1. Alex Tamba Brima 1. On 7 March 2003, Justice Thompson approved the Indictment against the Accused Brima and ordered its non-disclosure to the public.3515 On the same day, Justice Thompson issued a warrant of arrest and an Order for the Accused Brima’s transfer and detention.3516 The Accused Brima was arrested on 10 March 2003 and transferred to the Special Court’s temporary detention facility in Bonthe on Sherbro Island. On 14 March 2003, Justice Itoe authorised the disclosure of the Indictment.3517 On 15, 17 and 21 March 2003, the Accused Brima made his initial appearance before Justice Itoe. He pleaded “not guilty” to all charges against him and was ordered to be detained on remand.3518

2. Brima Bazzy Kamara 2. On 28 May 2003, Justice Boutet approved the Indictment against the Accused Kamara and ordered its non-disclosure to the public. On the same day, Justice Boutet issued a warrant of arrest and an Order for the Accused Kamara’s transfer and detention.3519 The Accused Kamara was arrested on 29 May 2003 and transferred to the Special Court’s temporary detention facility in Bonthe on Sherbro Island. On 3 June 2003, Justice Boutet authorised the disclosure of the Indictment.3520 On 4 June 2003, the Accused Kamara made his initial appearance before Justice Boutet. He pleaded “not guilty” to all charges against him and was ordered to be detained on remand.

3. Santigie Kanu 3. On 16 September 2003, Justice Boutet approved the Indictment against the Accused Kanu and ordered its non-disclosure to the public. On the same day,

3515 Prosecutor v. Brima, SCSL-03–06-I, Decision Approving the Indictment and Order for Non- Disclosure, 7 March 2003. 3516 Prosecutor v. Brima, SCSL-03–06-PT, Warrant of Arrest and Order for Transfer and Detention, 7 March 2003. 3517 Prosecutor v. Brima, SCSL-03–06-I, Order for the Disclosure of the Indictment and the Warrant of Arrest and Order for Transfer and Detention, 14 March 2003. 3518 Prosecutor v. Brima, SCSL-2003–06-PT, Adjournment of the Initial Appearance and Detention on Remand, 15 March 2003. 3519 Prosecutor v. Kamara, SCSL-2003–10-PT, Decision Approving the Indictment, the Warrant of Arrest, and Order for Non-Disclosure, 28 May 2003; id., Warrant of Arrest and Order for Transfer and Detention, 28 May 2003. 3520 Prosecutor v. Kamara, SCSL-2003–10-I, Order for the Disclosure of the Indictment and the Warrant of Arrest and Order for Transfer and Detention, 3 June 2003. judgments 1755

Judge Boutet also issued a warrant of arrest and an Order for the Accused Kanu’s transfer and detention.3521 On 17 September 2003, the Accused Kanu was arrested and transferred to the Special Court’s temporary detention facility in Bonthe on Sherbro Island. On 19 September 2003, Justice Boutet authorised the disclosure of the Indictment.3522 On 23 September 2003, the Accused Kanu made his initial appearance before Justice Boutet. He pleaded “not guilty” to all charges against him and was ordered to be detained on remand.

B. Pre-Trial Proceedings 1. Joinder 4. On 9 October 2003, the Prosecution brought a motion pursuant to Rule 48(B) of the Rules,3523 seeking a joint trial of the Accused Sesay, Kallon and Gbao of the Revolutionary United Front (RUF), and the Accused Brima, Kamara and Kanu of the Armed Forces Ruling Council (AFRC) (“Prosecution Motion for Joinder”), who had all been indicted individually. The Prosecution submitted that the alleged crimes against all of these Accused formed part of one common scheme, strategy or plan.3524 5. On 27 January 2004, Trial Chamber I partially granted the Prosecution motion for joinder of the six Accused and ordered that the Accused Sesay, Kallon, and Gbao be tried jointly (‘RUF Case’), but separate from the Accused Brima, Kamara and Kanu, who were to be tried jointly as well (‘AFRC Case’).3525 6. On 3 February 2004, the Prosecution applied for leave to fĳile an interlocutory appeal against the Decision of Trial Chamber I on the Prosecution Motion for Joinder. On 13 February 2004, Trial Chamber I dismissed the application on the

3521 Prosecutor v. Kanu, SCSL-2003–13-I, Decision Approving the Indictment, the Warrant of Arrest and Order for Transfer and Detention and Order for Non-Public Disclosure, 16 September 2003; id., Warrant of Arrest and Order for Transfer and Detention, 16 September 2003. 3522 Prosecutor v. Kanu, SCSL-2003–13-I, Order for Disclosure of the Indictment, the Warrant of Arrest and Order for Transfer and Detention, 19 September 2003. 3523 Rule 48(B) of the Rules provides: “Persons who are separately indicted, accused of the same or diffferent crimes committed in the course of the same transaction, may be tried together, with leave granted by the Trial Chamber pursuant to Rule 73.” 3524 Prosecutor v. Issa Hassan Sesay (SCSL-2003–05-PT), Prosecutor v. Alex Tamba Brima (SCSL- 2003–06-PT), Prosecutor v. Morris Kallon (SCSL-2003–07-PT), Prosecutor v. Augustine Gbao (SCSL- 2003–09-PT), Prosecutor v. Brima Bazzy Kamara (SCSL-2003–10-PT) and Prosecutor v. Santigie Borbor Kanu, (SCSL-2003–13-PT).3524 3525 Prosecutor v. Brima, SCSL-2003–06-PT, Prosecutor v. Kamara, SCSL-2003–10 PT, Prosecutor v. Kanu, SCSL-2003–13-PT, Prosecutor v. Sesay, SCSL-2003–05-PT, Prosecutor v. Kallon, SCSL-2003–07-PT, Prosecutor v. Gbao, SCSL-2003–09-PT, Decision and Order on Prosecution Motions for Joinder, 28 January 2004, para. 39. 1756 part iv ground that no showing of ‘exceptional circumstances’ pursuant to Rule 73(B) of the Rules3526 had been made.3527 7. On 30 April 2004, the Prosecution fĳiled a motion pursuant to Rule 48(C) of the Rules3528 for the concurrent presentation of the evidence common to both the RUF Case and the AFRC Case3529 on the grounds that the testimonies of several witnesses were common to both cases and therefore, a concurrent hearing of the evidence was in the interests of justice and of judicial economy. On 11 May 2004, Trial Chamber I dismissed the motion and ruled that a concurrent presentation of evidence, particularly in light of the amount of evidence and in the context of the Decision on the Prosecution Motion for Joinder, was conceptually irreconcilable with the notion of ‘joint separate trials.’3530 On 1 June 2004, Trial Chamber I dismissed an application by the Prosecution seeking leave to appeal the Decision of 11 May 2004 refusing a concurrent presentation of the evidence.3531 2. Trial Chamber Composition 8. The case was initially assigned to Trial Chamber I composed of Justices Thompson, Itoe and Boutet. On 17 January 2005, the President of the Special Court assigned the case to the newly formed Trial Chamber II, composed of Justices Doherty, Lussick and Sebutinde.3532 3. History of Indictments 9. The initial indictments against the Accused Brima, Kamara and Kanu each contained 17 counts of crimes against humanity, violations of Article 3 common to

3526 Rule 73(B) of the Rules provides: “Decisions rendered on such motions are without interlocutory appeal. However in exceptional circumstances and to avoid irreparable prejudice to a party, the Trial Chamber may give leave to appeal. Such leave should be sought within 3 days of the decision and shall not operate as a stay of proceedings unless the Trial Chamber so orders.” 3527 Prosecutor v. Brima, Kamara and Kanu, SCSL-2004–16-PT, Decision on Prosecution’s Application for Leave to File an Interlocutory Appeal Against the Decision on the Prosecution Motions for Joinder, 13 February 2004. 3528 Rule 48(C) of the Rules provides: “A Trial Chamber may order the concurrent hearing of evidence common to the trials of persons separately indicted or joined in separate trials and who are accused of the same or diffferent crimes committed in the course of the same transaction. Such a hearing may be granted with leave of a Trial Chamber pursuant to Rule 73.” 3529 Prosecutor v. Brima, Kamara, Kanu, SCSL-2004–16-PT, Prosecution’s Motion for Concurrent Hearing of Evidence Common to Cases SCSL-2004-PT and SCSL-2004–16-PT, 30 April 2004. 3530 Prosecutor v. Brima, Kamara and Kanu, SCSL-2004–16-PT, Decision on the Prosecution Motion for Concurrent Hearing of Evidence Common to Cases SCSL-2004–15-PT and SCSL-2004–16-PT, 11 May 2004. 3531 Prosecutor v. Brima, Kamara and Kanu, SCSL-2004–16-PT, Decision on Prosecution Application for Leave to File an Interlocutory Appeal Against Decision on Motion for Concurrent Hearing of Evidence Common to Cases SCSL-2004–15-PT and SCSL-2004–16-PT, 4 June 2004. 3532 Prosecution v. Brima, Kamara and Kanu, SCSL-2004–16-PT, Order Assigning a Case to a Trial Chamber, 17 January 2005. judgments 1757 the Geneva Conventions and of Additional Protocol II and other serious violations of international humanitarian law.3533 10. On 7 January 2004, counsel for the Accused Kamara fĳiled a preliminary motion with regard to several alleged defects in the form of the initial indictment.3534 On 1 April 2004, Trial Chamber I rendered a Decision in which it ordered the Prosecution to serve on the Defence a certifĳied true copy of the case summary accompanying the initial indictment.3535 11. On 16 October 2003, counsel for the Accused Kanu fĳiled a preliminary motion with regard to several alleged defects in the form of the initial indictment.3536 On 19 November 2003, Trial Chamber I rendered a Decision in which it ordered the Prosecution to correct certain language in the initial indictment which was found to be ambiguous. Trial Chamber I also found that the dates, locations and offfences in the initial indictment were pleaded with sufffĳicient clarity.3537 On 25 November 2003, the Prosecution fĳiled a Bill of Particulars containing additional events in support of the charges against the Accused Kanu.3538 12. On 27 January 2004, having ordered a joint trial of the Accused Brima, Kamara and Kanu, Trial Chamber I ordered the Prosecution to fĳile two consolidated indictments and that new case numbers be assigned to the two joint cases.3539 On 5 February 2004, the Prosecution fĳiled a new indictment (“Consolidated Indictment”) in compliance with the Order of Trial Chamber I.3540 13. 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 modifĳications of the Consolidated Indictment.3541 On 1 March

3533 Prosecutor v. Brima, SCSL-03–06-I, Indictment (Annexes: Prosecutor’s Memo to Accompany Indictment, Investigator’s Statement, Draft Order Confĳirming Indictment), 7 March 2003;Prosecutor v. Kamara, SCSL-03–10-PT, Prosecutor’s Memorandum to Accompany the Indictment, 26 May 2003; Prosecutor v. Kanu, SCSL-03–13-PT, Indictment, 15 September 2003. 3534 Prosecutor v. Kamara, SCSL-2003–10-PT, Brief in Support of Preliminary Motion on Defects in the Form of the Indictment, 7 January 2004; Prosecutor v. Kamara, SCSL-2003–10-PT, Relief for the Motion on Defects in the Form of the Indictment, 7 January 2004. 3535 Prosecutor v. Brima, Kamara and Kanu, SCSL-2004–16-PT, Decision and Order on Defence Preliminary Motion on Defects in the Form of the Indictment, 1 April 2004. 3536 Prosecutor v. Kanu, SCSL-2003–13-PT, Motion on Defects in the Form of the Indictment and for Particularization of the Indictment, 16 October 2003. 3537 Prosecutor v. Kanu, SCSL-2003–13-PT, Decision and Order on Defence Preliminary Motion for Defects in the Form of the Indictment, 19 November 2003. 3538 Prosecutor v. Kanu, SCSL-2004–13-PT, Bill of Particulars, 25 November 2003. 3539 id., Corrigendum – Decision and Order on Prosecution Motion for Joinder, 28 January 2004. See also Prosecutor v. Brima, Kamara and Kanu, SCSL-2004–16-PT, Decision for the Assignment of a New Case Number, 3 February 2004. 3540 Prosecutor v. Brima, Kamara and Kanu, SCSL-2004–16-PT, Indictment, 5 February 2004. 3541 Prosecutor v. Brima, Kamara and Kanu, SCSL-2004–16-PT, Request for Leave to Amend the Indictment, 9 February 2004. 1758 part iv

2004, following an Order of Trial Chamber I,3542 the Prosecution fĳiled a document setting out in detail its proposed amendments to the Consolidated Indictment.3543 14. 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”).3544 On 17 May 2004, the three Accused made a further appearance pursuant to Rule 50(B)(i) of the Rules before Justice Boutet to enter a plea on the new Count 8.3545 As the three Accused refused to enter a plea, Justice Boutet entered a plea of “not guilty” on their behalf in relation to Count 8 pursuant to Rule 61(iii) of the Rules. 15. 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.3546 16. On 20 January 2005, the Kanu Defence fĳiled a motion requesting the dismissal of counts 15–18 of the indictment on the grounds of an alibi defence and lack of a prima facie case, and requested for the extension of time for the hearing of the defence motion.3547 The Trial Chamber dismissed the motion and stated that there should be o further no argument on the motion. 17. The operative indictment in this case, the Further Amended Consolidated Indictment, was fĳiled on 18 February 2005.

4. Assignment of Counsel (a) The Accused Brima and Kamara 18. On 14 April 2003, the Registrar assigned Terence Michael Terry on a temporary basis to the Accused Brima (“Provisional Counsel”).3548 On 20 June 2004,

3542 Prosecutor v. Brima, Kamara and Kanu, SCSL-2004–16-PT, Order to Submit Indication of Specifĳic Changes to Indictments, 26 February 2004. 3543 Prosecutor v. Brima, Kamara and Kanu, SCSL-2004–16-PT, Indication of Specifĳic Changes to Indictments, 1 March 2004. 3544 Prosecutor v. Brima, Kamara and Kanu, SCSL-2004–16-PT, Decision on Prosecution Request for Leave to Amend the Indictment, 6 May 2004; see also id., Consequential Order and Corrigendum to the Decision on the Prosecution Request for Leave to Amend the Indictment, 12 May 2004. 3545 Prosecutor v. Brima, Kamara and Kanu, SCSL-2004–16-PT, Scheduling Order for the Further Appearance of the Accused on the Amended Consolidated Indictment, 12 May 2004. See Transcript 17 May 2004, pp. 1–25. 3546 Prosecutor v. Brima, Kamara and Kanu, SCSL-2004–16-PT, Decision on the Prosecution Application to Further Amend the Amended Consolidated Indictment by Withdrawing Counts 15–18, 15 February 2005 and Corrigendum to Decision on the Prosecution Application to Further Amend the Amended Consolidated Indictment by Withdrawing Counts 15–18, 15 February 2005. 3547 3548 Prosecutor v. Brima, SCSL-2003–06-I, Decision Appointing Counsel for the Accused, 14 April 2003. judgments 1759

Provisional Counsel passed away. Efffective as of 26 October 2004, Kevin A. Metzger was assigned as new counsel for the Accused Brima.3549 19. On 18 June 2003, Kenneth Fleming was assigned as counsel for the Accused Kamara on a temporary basis.3550 On 15 February 2005, Wilbert Harris was assigned as counsel for the Accused Kamara.3551 20. On 12 May 2005, the Trial Chamber granted a request by counsel for the Accused Brima and Kamara to withdraw and instructed the Principal Defender to assign new counsel to them.3552 However, on 24 May 2005, a motion was fĳiled seeking the re-appointment of Kevin Metzger and Wilbert Harris as counsel for the Accused Brima and Kamara. On 9 June 2005, the majority of the Trial Chamber dismissed the motion, fĳinding that it did not have jurisdiction to revisit its 12 May 2005 decision nor any grounds to re-appoint previous counsel.3553 On 8 December 2005, the Appeals Chamber partially overruled the Trial Chamber’s decision of 9 June 2005, fĳinding that the Trial Chamber had erred both in fact and in law.3554 (b) The Accused Kanu 21. On 1 October 2003, the Acting Principal Defence provisionally assigned Mr. Geert-Jan Knoops as Counsel to the Accused.3555 On 23 February 2004, the Acting Principal Defender named Mr. Knoops as Assigned Counsel to Kanu for the provision of legal services for the duration of the trial.3556

5. Bail 22. On 28 May 2003, Defence Counsel for Brima submitted a motion for bail pursuant to Rule 65 of the Rules.3557 According to Rule 65(B) of the Rules the

3549 Prosecutor v. Brima, SCSL-04–16, Decision, 25 October 2004. 3550 Prosecutor v. Kamara, SCSL-2003–10-PT, Decision, 18 June 2003. 3551 Prosecutor v. Kamara, SCSL-2004–16-PT, Decision, 15 February 2005 and Prosecutor v. Kamara, SCSL-2004–16-PT Decision, 15 February 2005. 3552 Oral Decision on the Application of Lead Counsel to withdrawn from the Case, Transcript 12 May 2005, pp. 2–3; see also Prosecutor v. Brima, Kamara, Kanu, SCSL-2004–16-T, Decision on the Confĳidential Joint Defence Application by Counsel for Brima and Kamara and on the Request on Further Representation by Counsel for Kanu, 20 May 2005. 3553 Prosecution v. Brima and Kamara, Decision on the Extremely Urgent Confĳidential Joint Motion for the Re-appointment of Kevin Metzger and Wilbert Harris as Lead Counsel for Alex Tamba Brima and Brima Bazzy Kamara and Decision on Cross Motion by Deputy Principal Defender to Trial Chamber II for Clarifĳication of its Oral Order of 12 May 2005, 9 June 2005. 3554 Case No. SCSL-2004016-AR73, Decision on Brima-Kamara Defence Appeal Motion Against Trial Chamber II Majority Decision on Extremely Urgent Confĳidential Joint Motion for the Re-Appointment of Kevin Metzger and Wilbert Harris as Lead Counsel for Alex Tamba Brima and Brima Bazzy Kamara, 8 December 2005. 3555 Prosecutor v. Kanu, SCSL-2003–13-PT, Decision, 2 October 2003. 3556 Prosecutor v. Brima, Kamara and Kanu, SCSL-2004–16-PT, Decision, 25 February 2004. 3557 Prosecutor v. Brima, SCSL-2003–06-PT, Defence Motion for Bail or for Provisional Release Pursuant to Rule 65 of the Rules of Procedure and Evidence of the SCSL, 28 May 2003. The motion for bail was fĳiled on the grounds that the Accused was sufffering from serious medical problems 1760 part iv

Attorney-General and Minister of Justice of Sierra Leone was heard, who recommended that the motion be rejected.3558 On 22 July 2003, Judge Itoe dismissed Brima’s application for bail, based on the likely possibility of the escape of the Accused, the probable impossibility of locating or recapturing him if released, the likelihood of public disorder and the possibility of recriminations.3559 23. On 23 June 2004 the Accused Kanu fĳiled a confĳidential motion for temporary bail in order to visit his mother who was unable to visit him at the Detention Facility due to her physical condition.3560 However, following the successful effforts of the Registrar to organize the transport of the Accused’s mother to the Detention Facility, the motion was shortly thereafter withdrawn by means of a letter.3561 24. The Kanu Defence fĳiled another motion on 07 September 2005 requesting permission to visit his mother’s grave to visit his mother’s grave. The Trial Chamber dismissed the motion on the grounds that it would not interfere with the decision of the Offfĳice of the Registry.

6. Habeas Corpus 25. On 28 May 2003, Counsel for Brima fĳiled a motion for leave to issue a writ of habeas corpus as well as for an Order for a writ of habeas corpus ad subjiciendum, on the basis that the Indictment approved by Judge Thompson on 7 March 2003 was fundamentally flawed, invalid and tantamount to a miscarriage of justice.3562 On 18 June 2003, Judge Itoe, acting as Designated Judge, granted leave to the Defence Counsel for Brima to fĳile an application to obtain a writ of habeas corpus

requiring intensive daily care, that his general health and sight were deteriorating, that the Accused was the sole breadwinner for his wife and son, that his continued detention was highly prejudicial and impaired access to his Counsel and Solicitor regarding his Defence for trial and that the Accused would pose no danger to any victim, witness or other person and would appear at trial. Previously, on 8 March 2004 and 14 March 2004 Counsel for the Accused fĳiled, respectively, a notice and a brief argument for the bail application. Acting as Designated Judge pursuant to Rule 28, Judge Thompson subsequently ordered the consolidation of these document and the fĳiling of a proper application in conformity with the formal requirement provided for by the Court. See id., Order on Filing, 16 May 2004. 3558 Prosecutor v. Brima, SCSL-2003–06-PT, Submission of the Government of the Republic of Sierra Leone in Response to Motion for Bail or for Provisional Release, 7 July 2003. 3559 Prosecutor v. Brima, SCSL-2003–06-PT, Ruling on a Motion Applying for Bail or for Provisional Release Filed by the Applicant, 22 July 2003. 3560 Prosecutor v. Brima, Kamara and Kanu, SCSL-2004–16-PT, Kanu-Motion for a Temporary Visit of the Accused to His Mother, 23 June 2004. 3561 Prosecutor v. Brima, Kamara and Kanu, SCSL-2004–16-PT, Withdrawal of Motion, 28 June 2004. 3562 Prosecutor v. Brima, SCSL-2003–06-PT, Defence Motion for Leave to Issue a Writ of Habeas Corpus, 28 May 2003. Previously, on 8 March 2004 and 14 March 2004 Counsel for the Accused fĳiled, respectively, a notice and a brief argument for the habeas corpus application. Acting as Designated Judge pursuant to Rule 28, Judge Thompson subsequently ordered the consolidation of these document and the fĳiling of a proper application in conformity with the formal requirement provided for by the Court. See id., Order on Filing, 16 May 2004. judgments 1761 and ordered that the writ be served on the Attorney General and Minister of Justice of the Republic of Sierra Leone.3563 The Attorney-General and Minister of Justice recommended that the motion be rejected.3564 On 22 July 2003, Judge Itoe dismissed the application for the leave to issue of the writ of habeas corpus on the basis that the Prosecution justifĳied the legality of the Accused Brima’s detention.3565

7. Preliminary Motions (a) Constitutionality 26. On 26 June 2003 a preliminary motion challenging the lawfulness of the Special Court’s establishment was fĳiled by Counsel for Norman.3566 On 18 September 2003 the motion was referred to the Appeals Chamber pursuant to Rule 72(E), since the Trial Chamber found that this motion raised “a serious issue relating to jurisdiction.”3567 Counsel for Kallon3568 and Kamara3569 fĳiled similar motions, which were referred to the Appeals Chamber by the Trial Chamber.3570 Of 13 March 2004 the Appeals Chamber decided on all these issues in its ‘Decision on Constitutionality and Lack of Jurisdiction.’3571 27. Counsel for Norman argued that the agreement between the Government of Sierra Leone and the United Nations establishing the Special Court was void, as the Government of Sierra Leone had efffectively made amendments to the Constitution without calling a referendum of the people of Sierra Leone, as required by the Constitution. Counsel for Norman further argued that when the

3563 Prosecutor v. Brima, SCSL-2003–06-PT, Order for Oral Hearing in the Motion Filed by the Defence for Leave to File a Writ of habeas corpus ad subjiciendum, 18 June 2003. 3564 Prosecutor v. Brima, SCSL-2003–06-PT, Submission of the Government of the Republic of Sierra Leone in Response to Defence Motion for Leave to Issue a Writ of habeas corpus ad subjiciendum and for an Order for the Writ of habeas corpus ad subjiciendum, 7 July 2003. 3565 Prosecutor v. Brima, SCSL-2003–06-PT, Ruling on the Application for the Issue of a Writ of habeas corpus Filed by the Applicant, 22 July 2003. 3566 Prosecutor v. Norman, SCSL-2003–08-PT, Preliminary Motion based on Lack of Jurisdiction: Lawfulness of the Court’s Establishment, 26 June 2003. 3567 Prosecutor v. Norman, SCSL-2003–08-PT, Order pursuant to Rule 72(E) – Defence Preliminary Motion in Lack of Jurisdiction: Lawfulness of the Court’s Establishment, 18 September 2003. 3568 Prosecutor v. Kallon, SCSL-2003–07-PT, Preliminary Motion based on lack of Jurisdiction: Establishment of Special Court violates Constitution of Sierra Leone, 16 June 2003. 3569 Prosecutor v. Kamara, SCSL-2003–10-PT, Application by Brima Bazzy Kamara in Respect of Jurisdiction and Defects in Indictment, 22 September 2003. 3570 Prosecutor v. Kallon, SCSL-2003–07-PT, Order pursuant to Rule 72(E) – Defence Preliminary Motion based on lack of Jurisdiction: Establishment of Special Court violates Constitution of Sierra Leone, 17 September 2003; Prosecutor v. Kamara, SCSL-2003–10-PT, Order pursuant to Rule 72(E) – Application by Brima Bazzy Kamara in Respect of Jurisdiction and Defects in Indictment, 9 October 2003. 3571 Prosecutor v. Kallon, SCSL-2004–15-AR72(E); Prosecutor v. Norman, SCSL-2003–14-AR72(E), Prosecutor v. Kamara, SCSL-2004–16-AR72(E); Decision on Constitutionality and Lack of Jurisdiction, 13 March 2004. 1762 part iv

Special Court Agreement was concluded, the Government of Sierra Leone controlled only one-third of the country’s territory and therefore lacked “efffective control” of the majority of the population and was not in a position to negotiate an agreement. Counsel for Kamara argued that the Special Court is not an international court, but a domestic court. Since the Statute of the Court creates crimes which were unknown under Sierra Leone law at the time of the alleged offfences, those laws violate the principle in the Constitution of nullum crimen sine lege. 28. In its Decision, the Appeals Chamber fĳirst held that the Special Court was competent to determine the legality of its own creation, since its Rules provide for a determination of these issues in Rule 72(E). 29. Regarding the merits of the motion, the Chamber confĳirmed that the Special Court is established by the Agreement between the UN and the Government of Sierra Leone, and that it is a ‘treaty-based sui generis court of mixed jurisdiction and composition.’ The Chamber found that the Special Court does not form part of the Judiciary of Sierra Leone as stated in section 11(2) of the Special Court Agreement Ratifĳication Act of March 2002 and thus cannot violate the Constitution. The Chamber held that the relevant constitutional requirements had been ful- fĳilled and confĳirmed that the Special Court acts only in an international sphere and is outside the structure of national courts. 30. On the issue of ‘efffective control,’ the Chamber observed that it is a fundamental principle of International Law that the occupation and acquisition of territory through the use of force is illegal and territory gained in this manner does not belong to the conqueror. So long as the democratically elected Government exists and is capable of controlling the afffairs of the State in the international community, it shall do so. Accordingly, the Government of Sierra Leone had authority to enter the Agreement. 31. In relation to the nullum crimen principle, the Appeals Chamber found that, since the Special Court acts only in an international sphere, it is sufffĳicient that the crimes existed under international law at the time of their alleged commission and the fact that crimes were unknown to the national Sierra Leonean law at the time of the alleged offfences has no efffect on the jurisdiction of the Special Court. 32. With this reasoning, the Chamber dismissed all motions in their entirety. (b) Kamara challenge to jurisdiction: Lomé Accord Amnesty 33. On 16 June 2003, Counsel for Kallon (Accused in the RUF case) fĳiled a preliminary motion based on lack of jurisdiction/abuse of process: amnesty provided by the Lomé Accord. On 22 September 2003, Counsel for Kamara requested that the Indictment be discharged and that the Accused be released on the grounds that the Indictment was not an Indictment known to Sierra Leonean law. In the alternative, Counsel requested that all charges other than those pursuant to Sierra judgments 1763

Leonean law be struck out on the grounds that Judge Boutet, who approved the Indictment, was not appointed pursuant to the Constitution of Sierra Leone and therefore his exercise of judicial power is invalid in Sierra Leone. In the alternative, Defence Counsel requested that all charges predating 7 July 1999 be struck out pursuant to the Lomé Peace Agreement.3572 Counsel for Kallon and Kamara argued that the Government of Sierra Leone was bound to observe the amnesty by the Lomé Agreement between the Government of Sierra Leone and the RUF. They submitted that the Special Court should not assert jurisdiction over crimes committed prior to July 1999 when the amnesty was granted and it would be an abuse of process to allow the prosecution of any of the alleged crimes pre-dating the Lomé Agreement. 34. On 30 September 2003 the Kallon Preliminary Motion was referred to the Appeals Chamber pursuant to Rules 72(E) and (F). On 9 October 2003, the Kamara Preliminary Motion was referred to the Appeals Chamber under Rule 72(E).3573 35. On 13 March 2004, the Appeals Chamber rendered its decision fĳinding that the Lomé Agreement created rights and obligations that are to be regulated by the domestic laws of Sierra Leone. Whether or not it is binding on the Government of Sierra Leone does not afffect the liability of the Accused to be prosecuted in an international tribunal for international crimes. Moreover, the Appeals Chamber concluded that an international tribunal, such as the Special Court, cannot be deprived of its jurisdiction to prosecute an offfender by the grant of an amnesty. The Appeals Chamber dismissed the challenge to jurisdiction.3574

(c) Kanu motion challenging jurisdiction and alleging abuse of process 36. On 20 October 2003, Defence Counsel for Kanu fĳiled a preliminary motion concerning the lack of jurisdiction of the Special Court, namely with regards to defects as to the international legal foundations of the Court, the lack of jurisdiction due to the amnesty clause in the Lomé Peace Agreement and the lack of jurisdiction with regards to superior responsibility prior to assuming command.3575

3572 Prosecutor v. Kamara, SCSL-2003–10-PT, Application by Brima Bazzy Kamara in Respect of Jurisdiction and Defects in Indictment, 22 September 2003. Diffferent issues raised in this motion pertaining to constitutional challenges have been disposed of by the Appeals Chamber in a separate decision rendered on 13 March 2004. See Prosecutor v. Kallon, SCSL-2004–15-AR72(E); Prosecutor v. Norman, SCSL-2003–14-AR72(E), Prosecutor v. Kamara, SCSL-2004–16-AR72(E); Decision on Constitutionality and Lack of Jurisdiction, 13 March 2004. 3573 Prosecutor v. Kamara, SCSL-2003–10-PT, Order Pursuant to Rule 72(E): Application by Brima Bazzy Kamara in Respect of Jurisdiction and Defects in the Indictment, 9 October 2003. 3574 Prosecutor v. Kallon, SCSL-2004–15-AR72(E); Prosecutor v. Kanu, SCSL-2004–16-AR72(E), Decision on Challenge to Jurisdiction: Lomé Accord Amnesty, 15 March 2004. 3575 Prosecutor v. Kanu, SCSL-2003–13-PT, Motion Challenging the Jurisdiction of the Special Court, Raising Serious Issues Relating to Jurisdiction on Various Grounds and Objections Based on Abuse of Process, 20 October 2003. 1764 part iv

37. On 22 January 2004, the Preliminary Motion was referred to the Appeals Chamber under Rule 72(E). The reference of the motion to the Appeals Chamber did not operate as a stay of the trial of the Accused.3576 38. On 25 May 2004 the Appeals Chamber, noting that it had already dealt with the issue of the Lomé Amnesty in its decision of 13 March 2004, dismissed the Preliminary Motion as being without merit on the grounds that the Special Court is vested with its own specifĳic jurisdiction and competence by the constitutive documents establishing it and that, as a treaty based institution, it operates outside the legal system of Sierra Leone and does not derive its jurisdiction from within the national system.3577 39. On 20 October 2003, the Defence for Kanu also fĳiled a preliminary motion contending a potential abuse of process and requesting that the charges against him as envisioned in Counts 3, 4, 6, 7, 10, 12 and 15 in so far as they entail the concept of crimes against humanity, be dismissed by virtue of the principle of non- retroactivity and nullum crimen sine lege, and alternatively, by virtue of Article 23(7) and Article 171(15) of the Constitution of Sierra Leone. The Defence further requested that Counts 1, 2, 5, 8, 9, 11, 13, 14, 16 and 17 be dismissed insofar as, at the time the alleged crimes were committed, the above mentioned laws and customs of war as envisioned by Article 3 Common to the Geneva Conventions and/or Additional Protocol II and other serious violations of international humanitarian law, were not implemented in the national legislation of the Republic of Sierra Leone.3578 40. On 8 March 2004 the Trial Chamber dismissed orally this motion during a Status Conference. In its written Decision following thereto on 31 March 2004, the Trial Chamber found that the preliminary motion did not meet the test required that proceeding with the trial of the Accused would contravene the Court’s sense of justice, due to pre-trial impropriety or misconduct.3579

8. Disclosure Matters 41. On 10 April 2003, Judge Thompson ordered the Prosecution to disclose to the Defence Counsel for Brima copies of the statements of all witnesses whom the

3576 Prosecutor v. Kanu, SCSL-2003–13-PT, Order Pursuant to Rule 72(E)-Defence Motion Challenging the Jurisdiction of the Special Court Raising Serious Issues Relating to Jurisdiction on Various Grounds and Objections Based on Abuse of Process, 22 January 2004. 3577 Prosecutor v. Kanu, SCSL-2004–16-AR72(E), Decision on Motion Challenging Jurisdiction and Raising Objections Based on Abuse of Process, 26 May 2004. 3578 Prosecutor v. Kanu, SCSL-2003–13-PT, Motion on Abuse of Process Due to Infringement of Principles of Nullum Crimen Sine Lege and Non-retroactivity as to Several Counts, 20 October 2003. 3579 Prosecutor v. Brima, Kamara and Kanu, SCSL-2004–16-PT, Written Reasons for the Trial Chamber’s Oral Decision on the Defence Motion on Abuse of Process Due to Infringement of Principles of Nullum Crimen Sine Lege and Non-retroactivity as to Several Counts, 31 March 2004. judgments 1765

Prosecutor intended to call to testify pursuant to Rule 66(A)(i), as well as all the evidence to be presented at trial pursuant to Rule 92bis of the Rules. Judge Thompson further ordered the Prosecution to disclose the existence of known evidence as well as any evidence that suggested the innocence or mitigated the guilt of the Accused or which afffected the credibility of the Prosecution’s evidence pursuant to Rule 68(B) of the Rules.3580 Judge Thompson also ordered the Prosecution to transmit the materials to the Registrar pursuant to Rule 66 until a fĳinal decision on protective measures was rendered.3581 42. Similarly, on 2 July 2003, pursuant to Rule 66A(i) and Rule 68(B), Judge Boutet ordered the Prosecution to transmit to the Registrar all the disclosure materials with regards to Kamara one month after the initial appearance of the Accused. The Registry was also ordered to seal and date the disclosure materials until orders for appropriate measures for witnesses, victims and non-public materials were rendered.3582 43. On 16 October 2003, Judge Boutet, acting as Designated Judge also ordered the Prosecution to transmit the disclosure materials in the case of Kanu to the Registrar who was to make disclosure materials available to the Defence Counsel. Disclosure was to take efffect when a decision was rendered on the Prosecution Motion for immediate protective measures for witnesses and victims and for non- public disclosure.3583 44. Following the issuing of each decision on protective measures3584 and the assignment of Defence Counsels for all the Accused, the Registrar accordingly made available to each Defence Counsel the relevant disclosure materials.3585 45. On 18 March 2004, Defence Counsel for Kanu submitted that the Prosecution had breached its disclosure obligations by failing to comply with Rule 66(A)(i) and requested that witnesses who gave their statements after 23 October 2003

3580 Prosecutor v. Brima, SCSL-2003–06-PT, Scheduling Order, 10 April 2003. 3581 Prosecutor v. Brima, SCSL-2003–06-PT, Order on Disclosure to the Registry, 17 April 2003. 3582 Prosecutor v. Kamara, SCSL-2003–10 PT, Interim Order for the Transmission of the Disclosure Materials to the Registrar, 3 July 2003. 3583 Prosecutor v. Kanu, SCSL-2003–13-PT, Decision on the Urgent Request for Interim Measures until Appropriate Protective Measures are in Place, 16 October 2003. 3584 Prosecutor v. Brima, SCSL-2003–06-PT, Decision on the Prosecutor’s Motion for Immediate Protective Measures for Witnesses and Victims and for Non-Public Disclosure, 23 May 2003, Prosecutor v. Kamara, SCSL-2003–10-PT, Decision on the Prosecutor’s Motion for Immediate Protective Measures for Witnesses and Victims and for Non-Public Disclosure, 23 October 2003, Prosecutor v. Kanu, SCSL-2004–13-PT, Decision on the Prosecution Motion for Immediate Protective Measures for Witnesses and Victims, 24 November 2003. 3585 The Registrar subsequently adopted a Practice Direction pursuant to Rule 33 in order to regulate this procedure: Practice Direction on Disclosure by the Prosecutor pursuant to Rule 66 of the Rules of Procedure and Evidence of the Special Court, 23 February 2004. 1766 part iv should not testify for the Prosecution at trial.3586 On 23 March 2004 Defence Counsel for Brima fĳiled another motion seeking similar relief.3587 On 30 July 2004 Judge Boutet dismissed the motion fĳiled by Kanu,3588 and on 2 August 2004 he dismissed the motion fĳiled by Brima.3589 Judge Boutet found that the Defence would not be prejudiced in any way as a consequence of the disclosure practice adopted by the Prosecution, that they had been provided with adequate notice of the case against the Accused and that they had sufffĳicient time to adequately prepare for trial. 46. On 4 August 2004, Defence Counsel for Kanu fĳiled an application for leave to appeal this decision on the basis that it constituted exceptional circumstances that may lead to irreparable prejudice to the Accused pursuant to Rule 73(B) of the Rules.3590 On 4 February 2005 Trial Chamber II dismissed the application, holding that neither exceptional circumstances nor irreparable prejudice has been shown to the satisfaction of the court.3591 47. Following the discussions held during the fĳirst Status Conference on 8 March 2004, the Trial Chamber issued on 1 April 2004 an order requesting the Prosecution to produce by not later than 26 April 2004, several materials in preparation for the commencement of the trial, including: a list of witnesses it intended to call at trial, and all witness statement in full (that had not yet been disclosed to the Defence).3592 The Prosecution accordingly disclosed all the requested materials.3593

3586 Prosecutor v. Brima, Kamara and Kanu, SCSL-2004–16-PT, Kanu-Motion for Exclusion of Prosecution Witness Statements and Stay on Filing of Prosecution Witness Statement Pursuant to Rule 5 and 66(A)(i), 18 March 2004. See also id., Kanu-Additional Motion for Exclusion of Prosecution Witness Statements and Stay on Filing of Prosecution Witness Statement Pursuant to Rule 5 and 66(A)(i), 19 March 2004. 3587 Prosecutor v. Brima, Kamara and Kanu, SCSL-2004–16-PT, Motion for Exclusion of Prosecution Witness Statements and Stay on Filing of Prosecution Witness Statement Pursuant to Rule 5 and 66(A)(i), 23 March 2004. 3588 Prosecutor v. Brima, Kamara and Kanu, SCSL-2004–16-PT, Kanu-Decision on Motions for Exclusion of Prosecution Witness Statements and Stay on Filing of Prosecution Statements, 30 July 2004. 3589 Prosecutor v. Brima, Kamara and Kanu, SCSL-2004–16-PT, Brima-Decision on Motions for Exclusion of Prosecution Witness Statements and Stay on Filing of Prosecution Statements, 2 August 2004. 3590 Prosecutor v. Brima, Kamara and Kanu, Kanu- SCSL-2004–16-PT, Application for Leave to File an Interlocutory Appeal Against the “Decision on Motion for Exclusion of Prosecution Witness Statements and Stay of Filing of Prosecution Statements” of 30 July 2004, 4 August 2004. 3591 Prosecutor v. Brima, Kamara and Kanu, Kanu- SCSL-2004–16-PT, Kanu – Decision on Application for Leave to File an Interlocutory Appeal against Decision on Motions for Exclusion of Prosecution Witness Statements and Stay on Filing of Prosecution Statements, 4 February 2005. 3592 Prosecutor v. Brima, Kamara and Kanu, Kanu- SCSL-2004–16-PT, Order to the Prosecution to File Disclosure Materials and Other Materials in Preparation for the Commencement of Trial, 1 April 2004. 3593 Prosecutor v. Brima, Kamara and Kanu, Kanu- SCSL-2004–16-PT, Materials Filed pursuant to Order to the Prosecution to File Disclosure Materials and Other Materials in Preparation for the Commencement of the Trial of 1 April 2004, 26 April 2004. See also id., Prosecution Chart Indicating judgments 1767

48. On 8 March 2005, the Trial Chamber dismissed a request by Brima Defence which sought to disclose the identity of a protected witness. 49. On 4 March 2005, Kanu and Brima fĳiled Motions requesting the Trial Chamber to order the Prosecution to disclose to the Defence all material and/or information relating to rewards given to Prosecution Trial witnesses prior to giving testimony in court. In its Response3594 the Prosecution acceded to the request by the Defence. On 16 March 2005, Trial Chamber II accordingly dismissed the two Motions.3595 50. On 10 March 2005, Brima, Kamara and Kanu fĳiled a Joint Defence Motion on Disclosure of All Original Witness Statements, Interview Notes and Investigators’ Notes Pursuant to Rules 66 and/or 68. On 4 May 2005 the Trial Chamber dismissed the motion fĳinding that the Defence had failed to demonstrate or substantiate the allegation of breach by the Prosecution of Rules 66 and 68.3596 51. On 19 March 2004, the Defence for Kanu submitted a motion to request an order requiring the governmental authorities of Cockerill Army Headquarters to release exculpatory information and evidence to the Defence on the Accused’s incarceration with respect to a shooting incident.3597 The Trial Chamber granted the motion on 1 June 2004.3598

9. Protective Measures for Witnesses 52. On 23 May 2003 in the case of Brima, 23 October 2004 in the case of Kamara and 24 November 2003 in the case of Kanu, Judge Thompson, for Brima and the Documentary and Testimonial Evidence by Paragraph of Consolidated Indictment pursuant to Trial Chamber Order dated 1 April 2004, 3 May 2004. See also id., Updated Compliance Report Filed pursuant to Undertaking by the Prosecution in Pre-Trial Conference Held 30 April 2004, 11 May 2004. See also id., Outstanding Exhibit Copies Filed pursuant to Order to the Prosecution to File Disclosure Materials and Other Materials in Preparation for the Commencement of the Trial of 1 April 2004, 11 June 2004. See also id., Supplementary Materials Materials Filed pursuant to Order to the Prosecution to File Disclosure Materials and Other Materials in Preparation for the Commencement of the Trial of 1 April 2004, 30 July 2004. 3594 Combined Prosecution Response to Kanu and Brima – Motion to Disclose Prosecution Materials and/or information pertaining to Rewards provided to Prosecution Trial Witnesses, fĳiled on 7 March 2005. 3595 Prosecutor v. Brima, Kamara and Kanu, Kanu- SCSL-2004–16-PT, Decision on Kanu Motion to Disclose Prosecution Material and/or Other Information Pertaining to Rewards to Prosecution Trial Witnesses and Brima’s Motion in Response, 16 March 2005. 3596 Prosecutor v. Brima, Kamara and Kanu, Kanu- SCSL-2004–16-PT, Decision on Joint Defence Motion on Disclosure of All Original Witness Statements, Interview Notes and Investigator’s Notes Pursuant to Rules 66 and/or 68. 3597 Prosecutor v. Brima, Kamara and Kanu, SCSL-2004–16-PT, Kanu-Motion to Request an Order under Rule 54 with Respect to Exculpatory Evidence, 19 March 2004. 3598 Prosecutor v. Brima, Kamara and Kanu, SCSL-2004–16-PT, Kanu-Decision on Defence Motion in Respect of Santigie Borbor Kanu for an Order Under Rule 54 with Respect to Release of Exculpatory Evidence, 9 June 2004. 1768 part iv

Kamara, and Judge Itoe, for Kanu, an Order for immediate protective measures for and non-public disclosure of witnesses and victims. The Prosecution was allowed to withhold identifying data of persons whom it was seeking to protect until twenty-one days before the witness was to testify at trial in the case of Brima and Kamara and forty-two days in the case of Kanu. The Order also required that the names and other identifying information concerning all witnesses be sealed by the Registry and not be included in any existing or future records of the Court.3599 53. On 2 April 2004, the Trial Chamber ordered the Prosecution to fĳile a renewed motion for protective measures pursuant to Rules 69 and 75 of the Rules, for each witness who appeared on the Prosecution Witness List.3600 On 4 May 2004, the Prosecution fĳiled a renewed motion for protective measures.3601 On 20 January 2005 Trial Chamber II issued an interim Order on the modifĳication of protective measures instructing the prosecutor to modify the “rolling disclosure period” of unredacted witness statements to the Defence in the case of the Accused Kanu to 42 days and, in addition, ordered that the Prosecutor shall commence with such disclosure on 24 January 2005.3602 In the same Order the Trial Chamber allowed the Parties to fĳile additional submissions.3603 The submissions were heard by Judge Doherty, in open court following a scheduling order on 28 January 2005, which moreover ordered the Prosecution to fĳile a list that indicated which witnesses already protected by an order of another Trial Chamber of the Special Court would be appearing in this case before them.3604 The Prosecutor fĳiled such a list on 1 February 2005.3605 Due to the list it became apparent that all witnesses had already been granted protective measures due to an order of Trial Chamber I.3606 After declaring the motion redundant the Prosecutor withdrew its motion. Judge

3599 Prosecutor v. Brima, SCSL-2003–06-PT, Decision on the Prosecutor’s Motion for Immediate Protective Measures for Witnesses and Victims and for Non-Public Disclosure, 23 May 2003, Prosecutor v. Kamara, SCSL-2003–10-PT, Decision on the Prosecutor’s Motion for Immediate Protective Measures for Witnesses and Victims and for Non-Public Disclosure, 23 October 2003, Prosecutor v. Kanu, SCSL-2004–13-PT, Decision on the Prosecution Motion for Immediate Protective Measures for Witnesses and Victims, 24 November 2003. 3600 Prosecution v. Brima, Kamara and Kanu, SCSL-2004–16-PT, Order to the Prosecution for Renewed Motion for Protective Measures, 2 April 2004. 3601 Prosecution v. Brima, Kamara and Kanu, SCSL-2004–16-PT, Renewed Prosecution Motion for Protective Measures Pursuant to Order to the Prosecution for Renewed Motion for Protective Measures Dated 2 April 2004, 4 May 2004. 3602 Prosecution v. Brima, Kamara and Kanu, SCSL-2004–16-PT, Interim Order on Modifĳication of Protective Measures for Witnesses, 20 January 2005. 3603 Prosecution v. Brima, Kamara and Kanu, SCSL-2004–16-PT, Interim Order on Modifĳication of Protective Measures for Witnesses, 20 January 2005. 3604 Prosecutor v. Brima, Kamara and Kanu, Kanu- SCSL-2004–16-PT, Scheduling Order, 28 February 2005. 3605 List of Protective Measures received from Trial Chamber I and other Information Filed pursuant to Scheduling Order of 28 January 2005, 1 February 2005. 3606 Prosecutor v. Sesay, Kallon and Gboa, SCSL-2004–15-PT, Decision on Prosecutions Motion for Modifĳication of Protective Measures for Witnesses, 5 July 2004. judgments 1769

Doherty ordered the Prosecution to inform the Defence Teams of all variations of protective measures in regard to the witnesses appearing in this case.3607

10. Pre-trial Briefs and Agreed Facts 54. On 2 April 2004 the Prosecution requested that the Trial Chamber take judicial notice of certain facts as ‘facts of common knowledge,’ including those from offfĳicial and internationally recognised United Nations documents and various humanitarian reports and admit them in evidence.3608 Pursuant to Rule 94(A) the Trial Chamber must take judicial notice of facts of common knowledge. On 25 October 2005 the Trial Chamber issued its decision in which it fount that eleven facts qualifĳied for judicial notice.3609 55. Following an Order issued on 13 February 20043610 for the fĳiling of Pre-Trial briefs, the Prosecution submitted its Pre-Trial brief on 5 March 2004. On 1 April 2004, the Trial Chamber ordered the Prosecution to fĳile no later than 22 April 2004, a Supplemental Pre-Trial Brief.3611 On 22 April 2004, the Prosecution accordingly submitted its Supplemental Pre-Trial Brief.3612 56. On 22 March 2004 Defence Counsel for Kanu also submitted its Pre-Trial brief.3613 With the same order by which it requested the Prosecution to supplement its Brief, the Trial Chamber also modifĳied the deadline for the fĳiling of the Defence Pre-Trial Briefs, originally set for 26 March 2004, setting for two weeks prior to the date for the commencement of the trial. Contextually, Defence Counsel for Kanu was given the possibility to fĳile any supplement to its brief with the same deadline.3614

3607 Prosecutor v. Brima, Kamara and Kanu, SCSL-2004–16-PT, Oral Decision on Prosecution’s Motion for Protective Measures Pursuant to Order to the Prosecution for Renewed Protective Measures Dated 2 April 2004, 3 February 2005. 3608 Prosecutor v. Brima, Kamara and Kanu, SCSL-2004–16-PT, Prosecution’s Motion for Judicial Notice and Admission of Evidence, 2 April 2004. See also id., Order to File Outstanding Documents in Support of the Judicial Notice Motion, 4 May 2004. 3609 Prosecutor v. Brima, Kamara and Kanu, SCSL-2004–16-PT, Decision on the Prosecution Motion for Judicial Notice and Admission of Evidence, 25 October 2005. 3610 Prosecutor v. Brima, Kamara and Kanu, SCSL-2004–16-PT, Order for Filing Pre-Trial Briefs (Under Rules 54 and 73bis), 13 February 2004. 3611 Prosecutor v. Brima, Kamara and Kanu, SCSL-2004–16-PT, Order to the Prosecution to File a Supplemental Pre-Trial Brief and Revised Order for Filing of Defence Pre-Trial Briefs, 1 April 2004. 3612 Prosecutor v. Brima, Kamara and Kanu, SCSL-2004–16-PT, Prosecution Supplemental Pre- Trial Brief Pursuant to Order to the Prosecution to File a Supplemental Pre-Trial Brief of 1 April 2004, 22 April 2004. 3613 Prosecutor v. Brima, Kamara and Kanu, SCSL-2004–16-PT, Kanu-Defence Pre-Trial Brief and Notifĳication of Defences Pursuant to Rule 67(A)(ii)(a) and (b), 22 March 2004. 3614 Prosecutor v. Brima, Kamara and Kanu, SCSL-2004–16-PT, Order to the Prosecution to File a Supplemental Pre-Trial Brief and Revised Order for Filing of Defence Pre-Trial Briefs, 1 April 2004. 1770 part iv

11. Pre-Trial Case Management 57. A Status Conference was held on 8 March 2004 pursuant to Rule 54 and Rule 65bis of the Rules.3615 A Pre-Trial Conference took place on 30 April 2004 pursuant to Rule 73bis of the Rules.3616

C. Trial Proceedings 1. Overview 58. The Prosecution case-in-chief commenced on 7 March 2005 and closed on 21 November 2005. The Prosecution called 59 witnesses. The reports of the three Prosecution expert witnesses were admitted under Rule 94bis. A total of 80 Prosecution exhibits were admitted. 59. The Defence case-in-chief started on 5 June 2006 and fĳinished on 26 October 2006. In total, the Defence called 87 witnesses, including the fĳirst Accused Alex Tamba Brima who testifĳied pursuant to Rule 85(C) of the Rules. The reports of the three Defence expert witnesses were admitted under Rule 94bis. A total of 39 Defence exhibits were admitted. 60. The Trial Chamber called one witness in order to gather information as to the whether the reliability of one document was susceptible of confĳirmation under Rule 92bis (B). 61. Rebuttal was requested by the Prosecution but denied.3617 62. Final briefs were fĳiled on 1 December 2006. Closing Arguments were heard on 7 and 8 December 2006. 63. The Trial Chamber sat 176 trial days.

2. Evidentiary Issues 64. The admission of evidence at trial was regulated on the basis of the Rules and case-law of this Tribunal. (a) Disclosure 65. On 4 April 2005 the Defence fĳiled a motion for disclosure of independent investigator’s report on contempt of court proceedings and stay of proceedings.

3615 Prosecutor v. Brima, Kamara and Kanu, SCSL-2004–16-PT, Scheduling Order for Status Conference (Under Rule 65bis) 13 February 2004. 3616 Prosecutor v. Brima, Kamara and Kanu, SCSL-2004–16-PT, Scheduling Order Setting a New Date for the Pre-Trail Conference, 28 April 2004. See also id., Order for a Pre-Trial Conference (Under Rule 73bis), 2 April 2004. 3617 Prosecutor v. Brima, Kamara and Kanu, SCSL-2004–16-PT, Decision on confĳidential motion to call evidence in rebuttal, 14 November 2006. judgments 1771

On 30 June 2005, the Trial Chamber dismissed the motion on the grounds that the Defence Counsel were not representing the Accused, nor did they show that non- disclosure would in any way prejudice their case. 66. On 10 March 2005, the Defence fĳiled a joint motion against the Prosecution for disclosure of original witness statements, interview and investigator notes, pursuant to Rule 66 and 68. On 4 May 2005, the Trial Chamber dismissed the motion.3618 The Trial Chamber in its decision stated that the Defence did not prove that the Prosecution did not act in good faith, and that the Prosecution acted in a manner which was reasonable for the circumstances. 67. The Defence fĳiled separate motions on separate dates, but for the common purpose of requesting that photographs and/or videos taken of the Trials should not be disclosed to the public. On 28 February 2005 the Trial Chamber dismissed the motion.3619 68. On 4 March 2006, the Defence for Kanu and Brima fĳiled motions for disclosure of payments made by Prosecution to its witnesses before evidence in chief. The Prosecution agreed to disclose the material required. But the Defence later stated that it did not desire a ruling on this motion anymore, as it did not think there was any contention between the parties any more, the Trial Chamber dismissed the motion on 16 March 2005.3620 69. On 27 July 2006, the Prosecution fĳiled a motion for restriction of contact between the Accused and Defence witnesses and for disclosure of all such contacts. The Prosecution argued based on foreign laws and customs and also that it could afffect the evidence that each witness could give. On 10 October 2006, the Trial Chamber dismissed the motion.3621 70. On 7 July 2006, the Prosecution seized the Trial Chamber for relief for Defence failure of disclosure of intent to enter the defence of alibi pursuant to Rule 67. On 26 July 2006, the Trial Chamber granted the motion in part and ordered the Defence for the fĳirst Accused Brima to make the necessary disclosures in

3618 Prosecution v. Brima, Kamara, and Kanu, SCSL-04–16-PT, Decision on Joint Defence Motion on Disclosure of All Original Witness Statements, Interviews Notes and Investigator Notes Pursuant to Rule 66 and/or 68, 4 May 2005. 3619 Prosecution v. Brima, Kamara and Kanu, SCSL-04–16-PT, Decision on Defence Application not to Disclose Photography, Video and Audio Recordings of the Trial to the Public and/or Third Parties, 28 February 2005. 3620 Prosecution v. Brima, Kamara and Kanu, SCSL-04–16-PT, Decision on Kanu Motion to Disclose Prosecution Material And/Or Other Information Pertaining to Rewards To Prosecution Trial Witnesses and Brima’s Motion in Support, 16 March 2005. 3621 Prosecution v. Brima, Kamara and Kanu, SCSL-04–16-PT, Decision on Urgent Prosecution Motion for an Order Restricting Contacts Between the Accused and Defence Witnesses and Requiring Disclosure of Such Contacts, 10 October 2006. 1772 part iv accordance with Rule 67(A)(ii). The order sought against the second and third accused (Kamara and Kanu) was denied.3622 (b) Judicial Notice 71. On 2 April 2004, the Prosecution seized the Trial Chamber with a motion for judicial notice and admission of evidence, stating a list of facts it wanted the Court to take judicial notice of. In its decision on 25 October 2005 the Trial Chamber took judicial notice of nine facts, modifĳied two and dismissed seven of the facts stated in the Prosecutions motion. (c) Admission of Documentary Evidence 72. On 18 November 2005, the Trial Chamber made a decision on the Prosecution’s notice for admission of information into evidence pursuant to Rule 92bis. The Trial Chamber admitted thirty-eight of the documents which the Prosecution stated in its notice; for two other documents, the Trial Chamber stated that they would be admitted as evidence on the condition that the complete documents are tendered, and for one of the documents the Trial chamber stated that the copied tendered must be legible.3623 73. On 7 March 2005, the Defence fĳiled a motion on Admissibility of Expert Witnesses/Expert Evidence and fĳiling of notice pursuant to Rule 94bis. The Defence alleged that some particular witnesses for the Prosecution were a hybrid of the two international recognized type of witnesses (witness of facts and expert witnesses) and that this would cause them prejudice, as they would not be able to cross-examine them. On 16 June 2005, the Trial Chamber dismissed the motion on the basis that it was premature, as the witnesses had not yet been called.3624 (d) Protective Measures and Matters not Subject to Disclosure 74. On 25 April 2006 the Defence fĳiled a jointed application for Protective Measures for Defence witnesses. On 9 May 2006, the Trial Chambers granted the motion, having been satisfĳied that there was reasonable risk of danger to the witnesses. 75. On 9 May 2006, the Defence fĳiled a joint motion, for leave to extend the deadline for presentation of fĳinal witness list and on its inability to provide details on

3622 Prosecutor v. Brima, Kamara and Kanu, SCSL-04–16-PT, Decision on Prosecution Motion for Relief in Respect of Violations of Rule 67, 26 July 2006. 3623 Prosecution v. Brima, Kamara and Kanu, SCSL-04–16-PT, Decision on Prosecution Tender for Admission into Evidence of Information Contained in Notice Pursuant to Rule 92bis, 18 November 2005. 3624 Prosecution v. Brima, Kamare and Kanu, SCSL-04–16-PT, Decision on Joint Defence Motion on Admission of Expert Witness/ Expert Evidence and Filing of Notice Pursuant to Rule 94bis (B)i and ii, on Re-fĳiled Defence Request for Dislosure and the Joint Defence Motion for Exclusion of Medical Information, Statistics and Abstracts Pertaining to Witnesses TF1-081 and TF1-188, 16 June 2005. judgments 1773 certain witnesses. On 17 May 2006, despite the fact the Prosecution contended the motion, the Trial Chamber granted the motion and extended the deadline and ordered that the motion remain confĳidential.3625 76. On 13 September 2006, the Trial Chamber granted a motion for the Defence and ordered that the Protective Measures ordered in the Decision dated 9 May 2006 be extended to witnesses stated in Defence documents “Kanu- Defence Filing of Witness List Pursuant to Trial Chamber Order of 17 May 2006.”3626 77. The Defence on the behalf of Brima Bazzy Kamara on 12 May 2005 fĳiled an evidentiary submission to the efffect that the Registrar was disseminating confĳi- dential documents to the Press and Public Afffairs Offfĳice. On 17 October 2005, the Trial Chamber ordered that documents fĳiled confĳidentially shall only be served to those for whom it was intended and shall not be disseminated to others without the leave of the Court.3627 78. On 18 October 2006 the Prosecution fĳiled a motion for varying the Protective Measures for witnesses. The Prosecution claimed that the Protective measures applicable to the witnesses of the fĳirst trial (AFRC case) should be modifĳied for the second trial (Taylor Case), given the fact that the witnesses would have to be moved and this would involve releasing their identity to outsiders. On 15 November 2006, the Trial Chamber dismissed the motion on the grounds that the Protective Measures in the fĳirst proceedings shall apply mutatis mutandis to the second trial and that the Trial Chamber had already issued decisions to vary the protective measures of the witnesses in the second proceedings.3628 (e) Counsel Issues 79. On 13 May 2005, the Trial Chamber issued an order on the role of Court- appointed counsel. The Chamber in its decision stated what the duties of the Counsel for Alex Tamba Brima and Brima Bazzy Kamara should be until lead Counsel was appointed for them; however, this decision could be modifĳied when deemed necessary.3629

3625 Prosecution v. Brima, Kamara and Kanu, SCSL-2004–16-PT, Decision on Confĳidential Joint Motion of the Defence as to Inability to Provide Details on Certain Witnessses on 10 May 2006 and Anticipation of subpoenas ad testifĳicandum, 17 May 2006. 3626 Prosecution v. Brima, Kamara and Kanu, SCSL-2004–16-PT, Decision on Joint Defence Application for Protective Measures for Defence Witnesses Appearing from 4 September 2006 Onwards, 13 September 2006. 3627 Prosecutor v. Brima, Kamara and Kanu, SCSL-04–16-PT, Decision on Defence Submission Providing Evidentiary Proof of Registry’s Repeated Dissemination of Confĳidential Documents to the Press and Public Afffairs Offfĳice, 17 October 2005. 3628 Prosecution v. Brima, Kamara and Kanu, SCSL-04–16-PT, Decision on Confĳidential Motion to Vary Protective Measures, 15 November 2006. 3629 Prosecution v. Brima, Kamara and Kanu, SCSL-04–16-T,Consequential Order on the Role of Court Appointed Counsel, 13 May 2005. 1774 part iv

80. On 5 May 2005, the Trial Chamber was seized by a “Confĳidential Joint Defence Submission on the Withdrawal of Counsel in the AFRC Case” by lead Counsel for Brima and Kamara. On 20 May 2005 the Trial Chamber granted the motion for the withdrawal of Lead Counsel Kevin Metzger and Wilbert Harris as Counsel for Brima and Kamara respectively.3630 However, on 24 May 2005 an extremely urgent and confĳidential motion was fĳiled for the re-appointment of Kevin Metzger and Wilbert Harris for Alex Tamba Brima and Brima Bazzy Kamara. On 9 June 2005, the Trial Chamber, granted the motion on behalf of Accused Brima and Kamara for the re-appointment of Counsel for them.3631 90. On 5 August 2005, the Trial Chamber granted to the Defence leave for and interlocutory appeal on its decision for re-appointment of lead counsel for Alex Tamba Brima.3632 The Trial Chamber justifĳied its decision by stating Rule 73(B) and an earlier decision of the Appeals Chamber to the efffect that interlocutory appeals shall not delay the conclusion of trial.3633

3. Rule 98 Decision The Defence fĳiled Motions for Judgement of Acquittal Under Rule 98 on 12 and 13 December 2005. On 31 March 2006 the Trial Chamber rendered its decision dismissing the defence motions in their entirety.3634

3630 Prosecution v. Brima, Kamara and Kanu, SCSL-04–16-PT,Decision on the Confĳidential Joint Defence Application for Withdrawal of Counsel for Brima and Kamara on the Request for further Representation by Counsel for Kanu, 20 May 2005. 3631 Prosecution v. Brima, Kamara and Kanu, SCSL-04–16-PT, Decision on Extremely Urgent Confĳidential Joint Motion for Re-appointment of Kevin Metzger and Wilbert Harris as Lead Counsel for Alex Tamba Brima and Brima Bazzy Kamara, and Decision on Cross Motion by Deputy Principal Defender to Trial Chamber II for Clarifĳication of its Orders of 12 May 2005, 9 June 2005. 3632 Prosecutor v. Brima, Kamara and Kanu, Decision on Brima-Kamara Application for Leave to Appeal from the Decision on the Re-Appointment of Kevin Metzger and Wilbert Harris as Lead Counsel, 5 August 2005. 3633 Prosecutor v. Hinga Norman, SCSL-2004–14-AR73, Decision on Amendment of the Consolidated Indictment, 16 May 2005, para. 43. 3634 Prosecutor v. Brima, Kamara and Kanu, SCSL-2004–16-PT, Decision on Defence Motions for Judgement of Acquittal Under Rule 98, 31 March 2006. judgments 1775

ANNEX B: GLOSSARY

D. List of Abbreviations, Acronyms and Short References

Accused Alex Tamba Brima, Brima Bazzy Kamara, and Santigie Borbor Kanu Additional Protocol I Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), Geneva, 12 December 1977 Additional Protocol II Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), Geneva, 12 December 1977 a.k.a. Also known as Art. Article AFRC Armed Forces Revolutionary Council CDF Common Article 3 Article 3 common to the four Geneva Conventions of 1949 Count Charge Defence Counsel for Alex Tamba Brima, Brima Bazzy Kamara, and Santigie Borbor Kanu. Defence Final Brief Prosecutor v. Alex Tamba Brima, Case No. SCSL-2004- 16-PT, Confĳidential Brima Defence Final Brief, fĳiled on 1 December 2007; Prosecutor v. Brima Bazzy Kamara, Case No. SCSL-2004-16-PT, Confĳidential Kamara Defence Final Brief, fĳiled on 1 December 2006; Prosecutor v. Santigie Borbor Kanu, Case No. SCSL-2004-16-PT, Confĳidential Kanu Defence Trial Brief, fĳiled on 1 December 2006. Defence Pre-Trial Brief Prosecutor v, Alex Tamba Brima, Brima Bazzy Kamara, Santigie, Case No. SCSL-2000-16-PT, Defence Pre-Trial Brief for Tamba Alex Brima, fĳiled on 17 February 2005; Kamara Defence Pre-Trial Brief, fĳiled on 21 February 2005; Kanu Defence Pre-Trial Brief and Notifĳication of Defences Pursuant to Rule 67(A)(ii) AND (b). ECOWAS Economic Community of West African States ECOMOG Economic Community of West African States Monitoring Group 1776 part iv exhibit D- Defence Exhibit exhibit P- Prosecution Exhibit fn. Footnote 1949 Geneva Geneva Convention for the Amelioration of the Convention I Condition of Wounded, Sick, and Shipwrecked Members of Armed Forces in the Field, 12 August 1949, 75 UNTS 31 1949 Geneva Geneva Convention for the Amelioration of the Convention II Condition of Wounded, Sick, and Shipwrecked Members of Armed Forces at Sea, 12 August 1949, 75 UNTS 85 1949 Geneva Geneva Convention Relative to the Treatment of Convention III Prisoners of War, 12 August 1949, 75 UNTS 135 1949 Geneva Geneva Convention Relative to the Protection Convention IV of Civilian Persons in Time of War, 12 August 1949, 75 UNTS 2 Hors de combat Not taking active part in the hostilities ICC International Criminal Court ICRC International Committee of the Red Cross ICTR International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other Such Violations Committed in the Territory of Neighbouring States, between 1 January 1994 and 31 December 1994 ICTR Statute Statute of the ICTR, established pursuant to Security Council Resolution 955 (1994) (S/RES/955) ICTY International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, established by Security Council Resolution 827 (1993) ICTY Statute Statute of the International Criminal Tribunal for the former Yugoslavia Indictment Prosecutor Against Alex Tamba Brima, Brima Bazzy Kamara AND Santigie Kanu, Further Amended Consolidated Indictment inter alia among other things JCE Joint Criminal Enterprise Kamajors Mens Rea Guilty mind (the mental element of a crime) p. Page pp. Pages judgments 1777 para. Paragraph Paras Paragraphs Parties Prosecution v. Alex Tamba Brima, Brima Bazzy Kamara, Santigie Borbor Kanu, SCSL-2004-16-PT PLO Public Liaison Offfĳicer Prosecution Offfĳice of the Prosecutor Prosecution Final Brief Confĳidential Prosecution Final Trial Brief Prosecution Pre-Trial Prosecution’s Pre-Trial Brief Pursuant to Order for Filing Brief Pre-Trial Briefs (Under Rules 54 and 73bis) of 13 February 2004 Rome Statute Statute of the International Criminal Court, Rome, 17 July 1998 RUF Revolutionary United Front Rules Rules of Procedure and Evidence of the Special Court for Sierra Leone Special Court Special Court for Sierra Leone, established on 16 January 2002 Statute Statute of the Special Court for Sierra Leone, 16 January 2002 STF Special Task Force Supplemental Pre-Trial Prosecution Supplemental Pre-Trial Brief Pursuant to Brief the Prosecution to File a Supplemental Pre-Trial Brief of 1 April 2004, fĳiled on 21 April 2004

E. List of Cases 1. Special Court BRIMA, KAMARA, KANU – “AFRC”

Prosecutor v. Brima, SCSL-03-06-I, Decision Approving the Indictment and Order for Non-Disclosure, 7 March 2003. Prosecutor v. Brima, Kamara, Kanu, Case No. SCSL-04-16-PT, Decision and Order on Defence Preliminary Motion on Defects in the Form of the Indictment, 1 April 2000. Prosecutor v. Brima, Kamara, Kanu, Case No. SCSL-04-16-PT, Decision and Order on Defence Preliminary Motion on Defects in the Form of the Indictment, 1 April 2004. Prosecutor v. Brima, Kamara, Kanu, Case No. SCSL-04-16-T, Decision on Prosecution Tender for Admission into Evidence of Information Contained in Notice Pursuant to Rule 92bis, 18 November 2005. 1778 part iv

Prosecutor v. Brima, Kamara, Kanu, Case No. SCSL-04-16-T, Decision on Prosecution Motion for Judicial Notice and Admission of Evidence, 25 October 2005. Prosecutor v. Santigie Borbor Kanu, Case No. SCSL-2003-13-PT, Decision and Order on Defence Preliminary Motion for Defects in the Form of the Indictment, 19 November 2003. Prosecutor v. Brima, Kamara, Kanu, SCSL-04-16-T, Decision on Prosecution Motion for Relief in Respect of Violations of Rule 67, 26 July 2006. NORMAN, FOFANA, KONDEWA – “CDF” Prosecutor v. Norman, Kondewa, Fofana, Case No. SCSL-04-14-AR73, Fofana – Decision on Appeal against “Decision on Prosecution’s Motion for Judicial Notice and Admission of Evidence,” 16 May 2005. Prosecutor v. Sam Hinga Norman, Moinina Fofana and Allieu Kondewa, Case No. SCSL-04-14-PT, Decision on the Preliminary Motion on the Lack of Personal Jurisdiction Filed on Behalf of the Accused Fofana, 3 March 2004. Prosecutor v. Morris Kallon, Sam Hinga Norman and Brima Bazzy Kamara, SCSL- 2004-15-AR72(E)/SCSL-2004-14-AR72(E)/SCSL-2004-16-AR72(E), Decision on Constitutionality and Lack of Jurisdiction, 13 March 2004. Prosecutor v. Sam Hinga Norman, Moinina Fofana, Allieu Kondewa, Case No. SCSL- 04-14-T, Decision on Motions for Judgement of Acquittal Pursuant to Rule 98. Prosecutor v. Sesay, Kallon, Gbao, Decision on Defence Motion for Acquittal Pursuant to Rule 98, Transcript 25 October 2006. Prosecutor v. Allieu Kondewa, Case No. SCSL-03-13-PT, Decision and Order on Defence Preliminary Motion for Defects in the Form of the Indictment, 19 November 2003. Prosecutor v. Moinina Fofana, Case No. SCSL-04-14-AR65, Fofana – Appeal Against Decision Refusing Bail, 11 March 2005. Prosecutor v. Sam Hinga Norman, Case No. SCSL-2004-14-AR72(E), Decision on Preliminary Motion Based on Lack of Jurisdiction (Child Recruitment), 31 May 2004. Prosecutor v. Fofana, Case No. SCSL-04-14-PT, Decision on Preliminary Motion on Lack of Jurisdiction Materiae: Nature of the Armed Conflict, 26 May 2004. Prosecutor v. Allieu Kondewa, Case No. SCSL-03-13-PT, Decision and Order on Defence Preliminary Motion for Defects in the Form of the Indictment, 19 November 2003. judgments 1779

SESAY, KALLON, GBOA – “RUF” Prosecutor v. Sesay, Case No. SCSL-2003-05-PT, Decision and Order on Defence Preliminary Motion for Defects in the Form of the Indictment, 13 October 2003.

2. ICTY ALEKSOVSKI Prosecutor v. Zlatko Aleksovski, Case No. IT-95-14/1-T, Judgement, 25 June 1999 (“Aleksovski Trial Judgement”). Prosecutor v. Zlatko Aleksovski, Case No. IT-95-14/1-A, Judgement, 24 March 2000 (“Aleksovski Appeal Judgement”). BLAGEJOVIC Prosecutor v. Vidoje Blagojević & Dragan Jokić, Case No. IT-02-60-T, Judgment, 17 January 2005 (“Blagojević Trial Judgement”) BLAŠKIĆ Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-T, Judgement, 3 March 2000 (“Blaškić Trial Judgment”) Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-A, Appeal Judgment, 29 July 2004 (“Blaškić Appeals Judgment”) BRDANIN Prosecutor v. Brđanin and Talić, Case No. IT-99-36-PT, Decisions on Objections by Momir Talić to the Form of the Amended Indictment, 20 February 2001. Prosecutor v. Brđanin and Talić, Case No. IT-99-36-PT, Decisions on Form of Fourth Amended Indictment, 23 November 2001. Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement, 1 September 2004 (“Brđanin Trial Judgment”) DELALIĆ Prosecutor v. Zejnil Delalić, Zdravko Mucić aka “Pavo,” Hazim Delić aka “Zenga” and Esad Landžo, Case No. IT-96-21-A, Judgement, 20 February 2001 (“Čelebići Trial Judgement”) FURUNDŽIJA Prosecutor v. Anto Furundžija, Case No. IT-95-17/1-A, Judgement, 21 July 2000 (“Furundžija Appeal Judgment”) Prosecutor v. Anto Furundžija, Case No. IT-95-17/1-T, Judgement, 10 December 1998 (“Furundžija Trial Judgment”) 1780 part iv

HADŽIHASANOVIĆ ET AL. Prosecutor v. Hadžihasanović et al., Case No. IT-01-47-PT, Decision on Form of Indictment, 7 December 2001. Prosecutor v. Enver Hadžihasanović, Mehmed Alagić and Amir Kubura, Case No. IT-01-47-AR72, Decision on Interlocutory Appeal Challenging Jurisdiction in Relation to Command Responsibility, 16 July 2003. Prosecutor v. Enver Hadžihasanović and Amir Kubura, Case No. IT-01-47-T, Judgment, 15 March 2006 (“Hadžihasanović Trial Judgment”) Judge Shahabuddeen’s partly dissenting opinion in the Hadžihasanović Appeal Decision on Jurisdiction. HALILOVIĆ Prosecutor v. Sefer Halilović, Case No. IT-01-48-T, Judgement, 16 November 2005 (“Halilović Trial Judgment”) JELISIĆ Prosecutor v. Goran Jelisić, Case No. IT-95-10-T, Judgment, 14 December 1999 (“Jelisić Trial Judgment”) KORDIĆ AND ČERKEZ Prosecutor v. Dario Kordić & Mario Cerkez Case No. IT-95-14/2-A, Appeals Judgment, 17 December 2004 (“Kordić Trial Judgement”) KUNARAC, KOVAČ AND VUKOVIĆ Prosecutor v. Dragoljub Kunarac, Radomir Kovac & Zoran Vukovic Case No. IT-96-23 & IT-96-23/1-A, Appeal Judgment, 12 June 2002 (“Kunarac Appeal Judgment”) KVOČKA, KOS, RADIĆ, ŽIGIĆ AND PRCAĆ Prosecutor v. Miroslav Kvočka, Milojica Kos, Mlađo Radić, Zoran Žigić and Dragoljub Prać, Case No. IT-98-30/1-T, Judgement, 2 November 2001 (“Kvočka Trial Judgement”) KRAJISNIK Prosecutor v. Krajišnik, Judgment, Case No. IT-00-39-T, 27 September 2006 (“Krajišnik Trial Judgement”) Prosecutor v. Juvenal Kajelijeli, Judgement, Case No. ICTR-98-44A-T, 1 December 2003 (“Krajišnik Appeal Judgement”) KRSTIC Prosecutor v. Radislave Krstić Case No. IT-98-33-T, Judgment 02 August 2001(“Krstić Trial Judgement”) judgments 1781

KUPRESKIC Prosecutor v. Zoran Kupreškić, Mirjan Kupreškić, Vlatko Kupreškić, Drago Josipović, Dragan Papić and Vladimir Šantić aka “Vlado,” Case No. IT-95-16-T, Judgement, 14 January 2000 (“Kupreškić Trial Judgement”) Prosecutor v. Zoran Kupreškić, Mirjan Kupreškić, Vlatko Kupreškić, Drago Josipović, Dragan Papić and Vladimir Šantić aka “Vlado,” Case No. IT-95-16-A, Judgement, 23 October 2001 (“Kupreškić Appeal Judgement”) LIMAJ Prosecutor v. Fatmir Limaj, Haradin Bala & Isak Musliu, Case No. IT-03-66-T, Judgement, 30 November 2005 (“Limaj Trial Judgment”) MILUTINOVIĆ, ŠAINOVIĆ AND OJDANIĆ Prosecutor v. Milan Milutinović, Nikola Šainović and Dragoljub Ojdanić, Case No. IT-99-37-AR72, Decision on Dragoljub Ojdanić’s Motion Challenging Jurisdiction- Joint Criminal Enterprise, 21 May 2003. ORIĆ Prosecutor v. Naser Orić, Case No. IT-03-68-T, Judgement, 30 June 2006 (“Orić Trial Judgment”) GALIĆ Prosecutor v. Stanislav Galić Case No. IT-98-29-A, Appeal Judgement, 30 November 2006, (“Galić Appeal Judgement”) NALETILIĆ AND MARTINOVIĆ Prosecutor v. Mladen Naletilić aka “Tuta” and Vinko Martinović aka “Stela,” Case No. IT-98-34-T, Judgment, 31 March 2003 (“Naletilić Trial Judgment”) Prosecutor v. Deronjic, Case No. IT-02-61-PT, Decision on the Form of Indictment, 25 October 2002 (“Deronji Trial Judgment”) OJDANIĆ Prosecutor v. Milan Milutinović, Nikola Šainović and Dragoljub Ojdanić, Case No. IT-99-37-AR72, Decision on Dragoljub Ojdanić’s Motion Challenging Jurisdiction- Joint Criminal Enterprise, 21 May 2003. STRUGAR Prosecutor v. Pavle Strugar, Case No. IT-01-42-T, Judgement, 31 January 2005 (“Strugar Trial Judgement”). 1782 part iv

STAKIC Prosecutor v. Milomir Stakić, Case No. IT-97-24-T, Judgement, 31 July 2003 (“Stakić Trial Judgement”) Prosecutor v. Milomir Stakić, Case No. IT-97-24-A, Appeals Judgement, 22 March 2006 (“Stakić Appeal Judgement”) TADIC Prosecutor v. Dusko Tadic, Case No. IT-94-1-T, Opinion and Judgment, 7 May 1997 (“Tadic Trial Judgment”) Prosecutor v. Dusko Tadic, Case No. IT-94-1-T, Decision on the Defence Motion on the Form of Indictment, 14 November 1995. Prosecutor v. Duško Tadić, Case No. IT-94-1-AR77, Judgement on Allegation of Contempt Against Prior Counsel, Milan Vujin, 31 January 2000. Prosecutor v. Dusko Tadić a.k.a.,Case No. IT-94-1-T, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 2005. KRNOJELAC Prosecutor v. Krnojelac, Case No. IT-97-25-PT, Decision on Defence Preliminary Motion on the Form of Indictment, 24 February 1999 Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement, 15 March 2002 (“Krnojelac Trial Judgement”) VASILJEVIC Prosecutor v. Mitar Vasiljević, Case No. IT-98-32-T, Judgement, 29 November 2002 (“Vasiljević Trial Judgement”) Prosecutor v. Mitar Vasiljević, Case No. IT-98-32-A, Appeal Judgment, 25 February 2004 (“Vasiljević Appeal Judgement”)

3. ICTR AKAYESU Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgment, 2 September 1998 (“Akayesu Trial Judgment”) Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-A, Appeals Judgment, 1 June 2001 (“Akayesu Appeal Judgment”) BAGILSHEMA Prosecutor v. Ignace Bagilishema, Case No. ICTR-95-1A-T, Judgement, 7 June 2001 (“Bagilishema Trial Judgement”) judgments 1783

GACUMBITSI Sylvestre Gacumbitsi v. The Prosecutor, Case No. ICTR-2001-64-A, Judgement, 7 July 2006 (“Gacumbitsi Appeal Judgement”) KAJELIJELI Prosecutor v. Juvenal Kajelijeli, Case No. ICTR-98-44A-T, Judgement and Sentence, 1 December 2003 (“Kajelijeli Trial Judgement”). KAMUHANDA Prosecutor v. Jean de Dieu Kamuhanda, Case No. ICTR-99-54A-T, Judgement, 23 January 2003 (“Kamuhanda Trial Judgment”) Jean de Dieu Kamuhanda v. Prosecutor Case No. ICTR-99-54A-T, Appeal Judgement 19 September 2005 (“Kamuhanda Appeal Judgment”) KAREMERA Prosecutor v. Karemera, Ngirumpatse, Nzirorera, Case No. ICTR-98-44-AR72.5 and ICTR-98-44-72.6, Decision on Jurisdictional Appeals: Joint Criminal Enterprise, 12 April 2006. KANYABASHI Prosecutor v. Kanyabashi, Case No. ICTR-96-15-I, Decision on Defence Preliminary Motion for Defects in the Form of the Indictment, 31 May 2000. KAYISHEMA Prosecutor v. Clement Kayishema & Obed Ruzindana, Case No. ICTR-95-1-T, Judgement, 21 May 1999 (“Kayishema Trial Judgement”) Prosecutor v. Clement Kayishema & Obed Ruzindana, Case No. ICTR-95-1-A, Appeal Judgment, 1 June 2001 (“Kayishema Appeal Judgement”) MPAMBARA Prosecutor v. Jean Mpambara, Case No. ICTR- 01-65-T, Judgment, 11 September 2006 (“Mpambara Trial Judgment”) NTAGERURA Prosecutor v. Andre Ntagerura, Emmanuel Bagambiki, Samuel Imanishimwe, Case No. ICTR- 99-46-T, Judgment 25 February 2004 (“Ntagerura Trial Judgment”) MUHIMANA Prosecutor v. Mikaeli Muhimana, Case No. ICTR-95-1B-A, Judgement, 21 May 2007 (“Muhimana Appeal Judgement”) 1784 part iv

MUSEMA Prosecutor v. Alfred Musema, Case No. ICTR-96-13-A, Judgement, 16 November 2001 (“Musema Trial Judgment”) NDINDABAHIZI Prosecutor v. Emmanuel Ndindabahizi, Case No. ICTR-2001-71-T, Judgment, 15 July 2004 (“Ndindabahizi Trial Judgment”) NIYITEGEKA Prosecutor v. Eliezer Niyitegeka, Case No. ICTR-96-14-T, Judgement, 16 May 2003 (“Niyitegeka Trial Judgement”) NTAKIRUTIMANA Prosecutor v. Elizaphan Ntakirutimana & Gerard Ntakirutimana, Cases Nos. ICTR- 96-10-A and ICTR-96-17-A, Appeal Judgment, 13 December 2004 (“Ntakirutimana Appeal Judgement”) RUTAGANDA Prosecutor v. Georges Anderson Nderubemwe Rutaganda, Case No. ICTR-96-3-A, Judgment 6 December 1999 “(Rutaganda Trial Judgement”) Georges Anderson Nderubemwe Rutaganda v. Prosecutor Case No. ICTR-96-3-A, Appeal Judgment, 26 May 2003 (“Rutaganda Trial Judgment”) SEMANZA Prosecutor v. Laurent Semanza, Case No. ICTR-97-20-T, Judgement and Sentence, 15 May 2003 (“Semanza Trial Judgment”) SIMBA Prosecutor v. Aloys Simba, Case No. ICTR-2001-76-T, Judgment, 13 December 2005 (“Simba Trial Judgment”)

4. Domestic Decisions

5. Others USA v. Wilhelm von Leeb et al. in Trials of War Criminals Before the Nuremberg Military Tribunals Under Control Council Law No. 10 (“High Command Case”), Vol. XI, p. 511. United States v. Erhard Milch (Case II), Judgement of 31 July 1948, reprinted in Trials of War Criminals Before the Nuremberg Military Tribunals Under Control Council Law No. 10, Vol. II (1997). judgments 1785

United States v. Oswald Pohl and Others (Case IV), Judgement of 3 November 1947, reprinted in Trials of War Criminals Before the Nuremberg Military Tribunals Under Control Council Law No. 10, Vol. V (1997). United States et al. v. Hermann Göring et al., International Military Tribunal (6 October 1945), in 1 Trial of the Major War Criminals Before the International Military Tribunal, Nuremberg, 14 November 1945 – 1 October 1946, Nuremberg 1947. United States v. Ohlendorf and others (“Einsatzgruppen case) IV Trials of War Criminals before the Nuremberg Military Tribunal under Control Council Law No. 10, 421.

F. Main Actors in the Conflict

REAL NAME ALIAS ORGANISATION Denis Mingo Superman High ranking RUF Commander FAT Sesay FAT, Colonel FAT Brigade Administrator. AFRC fĳighting forces. Foday Sankoh. Leader of the RUF George Johnson Junior Lion Chief Security Offfĳicer to the Accused Kamara; AFRC Commander Hassan Papa Bangura Bombblast AFRC Commander Issa Sesay ‘Issa’ High ranking RUF Commander Johnny Paul Koroma JPK Chairman of the AFRC government Sam Bockarie ‘Mosquito’ Leader of the RUF in Sankoh’s absence. Solomon Anthony James Musa SAJ Musa AFRC, Superior of Alex Tamba Brima Mohamed Savage, aka, Mr. Die, ‘Savage’ AFRC Commander in Changabulanga. Tombodu Morris Kallon High ranking RUF Commander Real name unknown Stafff Alhaji AFRC Commander, Deputy to ‘Savage’ in Tombodu Real name unknown. “O-Five.” AFRC fĳighting forces commander 1786 part iv

ANNEX C: MAP OF SIERRA LEONE TRIAL CHAMBER II

Before: Justice Julia Sebutinde, Presiding Judge Justice Richard Lussick Justice Teresa Doherty Registrar: Herman von Hebel Date: 19 July 2007 PROSECUTOR Against Alex Tamba Brima Brima Bazzy Kamara Santigie Borbor Kanu (Case No.SCSL-04-16-T)

CORRIGENDUM TO JUDGEMENT FILED ON 21 JUNE 2007

Office of the Prosecutor: Defence Counsel for Alex Tamba Brima: Karim Agha Kojo Graham Christopher Staker Glenna Thompson Charles Hardaway Lesley Taylor Melissa Pack Defence Counsel for Brima Bazzy Kamara: Vincent Wagona Mohamed Pa-Momo Fofanah Shymala Alagendra Defence Counsel for Santigie Borbor Kanu: Geert-Jan Alexander Knoops Carry Knoops Abibola E. Manly-Spain 1788 part iv

TRIAL CHAMBER II (“Trial Chamber”) of the Special Court for Sierra Leone (“Special Court”), composed of Justice Julia Sebutinde, Presiding Judge, Justice Teresa Doherty and Justice Richard Lussick; RECALLING that the Judgement in this case was rendered orally by the Trial Chamber on 20 June 2007 in Freetown, pursuant to Rule 88 of the Rules of Procedure and Evidence of the Special Court; NOTING that the written Judgement, fĳiled on 21 June 2007, contained certain cler- ical errors that should be rectifĳied as follows: 1. Paragraph 671 should read: Therefore, this Trial Chamber endorses the fĳinding 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 […]” where such acts were committed with the primary purpose of spreading terror amongst the civilian population. 2. In paragraph 951, the fĳirst sentence should read “[…] AFRC forces killed at least 145 civilian men, women and children in the city of Freetown and in Kissy in the Western Area, as charged under Counts 4 and 5”; 3. Paragraph 1578 should read “The Prosecution has adduced evidence on acts of burning in Freetown. The Trial Chamber will consider this evidence below”; 4. In paragraphs 1641, 1686, 1811, 1842, 1904, 1951, 1982, 2015 and 2081 reference to “Counts 3 through 5” should be reference to “Counts 4 through 5”; 5. In paragraphs 1674, 1677, 1894 and 2006 reference to “Counts 3 through 5” should be reference to “Count 5”; 6. Paragraph 1720 should read: The Prosecution has not adduced any evidence that the Accused Brima planned, instigated or otherwise aided and abetted any of the crimes committed under Counts 1-6, 10 and 14 in Bombali District. The Trial Chamber fĳinds that the Prosecution has not proved any of these modes of criminal responsibility against the Accused Brima for the crimes committed under Counts 1-6, 10 and 14 in Bombali District. In view of the continuing nature of the crimes charged under Counts 9, 12 and 13 and the fact that they span across several Districts, the Trial Chamber will discuss the Accused Brima’s responsibility for these crimes below 7. The word ‘eight’ should be replaced by the word ‘three’ in the heading above paragraph 1780, so as to read “Order to kill three nuns at Kissy Mental Home”; 8. Paragraph 1784 should read: No evidence was adduced that the Accused Brima planned, instigated or otherwise aided and abetted any of the crimes committed under Counts 1-6, 10 and 14 in the Western Area. The Trial Chamber fĳinds that the Prosecution has not proved this judgments 1789

mode of criminal responsibility against the Accused Brima in relation to Counts 1-6, 10 and 14 in Freetown and the Western Area. In view of the continuing nature of the crimes charged under Counts 9, 12 and 13 and the fact that they span across several Districts, the Trial Chamber will discuss the Accused Brima’s responsibility for these crimes below. 9. Paragraph 1919 should read “In view of the continuing nature of the crimes charged under Counts 9, 12 and 13 […]”; 10. Paragraph 2105 should read: The Accused Kamara has been found individually criminally responsible pursuant to Article 6(1) of the Statute for offfences committed in Bombali District and the Western Area as charged under Count 3, Count 4, Count 5, Count 9, Count 10, Count 12 and Count 13. He has also been found individually criminally responsible pursuant to Article 6(3) for offfences committed by his subordinates in Kono District, Bombali District, the Western Area and Port Loko District as charged under Count 1, Count 2, Count 3, Count 4, Count 5, Count 6, Count 9, Count 10, Count 12, Count 13 and Count 14 11. Paragraph 2106 should read: The Accused Kanu has been found individually criminally responsible pursuant to Article 6(1) of the Statute for offfences committed in Bombali District and the Western Area as charged under Count 3, Count 4, Count 5, Count 9, Count 10, Count 12, Count 13 and Count 14. He has also been found individually criminally responsible pursuant to Article 6(3) for offfences committed by his subordinates in Bombali District and the Western Area as charged under Count 1, Count 2, Count 3, Count 4, Count 5, Count 6, Count 9, Count 10, Count 12, Count 13 and Count 14. 12. In paragraph 2117, the sentences

Count 1: Acts of Terrorism, a Violation of Article 3 common to the Geneva Conventions and of Additional Protocol II, pursuant to Article 3(d) of the Statute; Count 2: Collective Punishments, a Violation of Article 3 common to the Geneva Conventions and of Additional Protocol II, pursuant to Article 3(b) of the Statute; and further Count 6: Rape, a Crime against Humanity, pursuant to Article 2(g) of the Statute; and further Count 14: Pillage, a Violation of Article 3 common to the Geneva Conventions and of Additional Protocol II, pursuant to Article 3(f) of the Statute; should be removed; 13. In paragraph 2118, the sentences Count 1: Acts of Terrorism, a Violation of Article 3 common to the Geneva Conventions and of Additional Protocol II, pursuant to Article 3(d) of the Statute; 1790 part iv

Count 2: Collective Punishments, a Violation of Article 3 common to the Geneva Conventions and of Additional Protocol II, pursuant to Article 3(b) of the Statute; Count 14: Pillage, a Violation of Article 3 common to the Geneva Conventions and of Additional Protocol II, pursuant to Article 3(f) of the Statute; should be inserted at the end of the paragraph; 14. In paragraph 2121, the sentences Count 1: Acts of Terrorism, a Violation of Article 3 common to the Geneva Conventions and of Additional Protocol II, pursuant to Article 3(d) of the Statute; Count 2: Collective Punishments, a Violation of Article 3 common to the Geneva Conventions and of Additional Protocol II, pursuant to Article 3(b) of the Statute; and further Count 6: Rape, a Crime against Humanity, pursuant to Article 2(g) of the Statute; should be removed; 15. In paragraph 2122, the sentences Count 1: Acts of Terrorism, a Violation of Article 3 common to the Geneva Conventions and of Additional Protocol II, pursuant to Article 3(d) of the Statute; Count 2: Collective Punishments, a Violation of Article 3 common to the Geneva Conventions and of Additional Protocol II, pursuant to Article 3(b) of the Statute; should be inserted at the end of the paragraph; NOTING further that a number of minor typographical errors, which do not warrant an exhaustive listing, require correction; ANNEXING to this Order a revised Judgement incorporating these amendments and corrections; HEREBY ORDERS that the revised Judgement be treated as authoritative. Done at Freetown, Sierra Leone, this 19th day of July 2007. Justice Richard Lussick Justice Julia Sebutinde Justice Teresa Doherty Presiding Judge TRIAL CHAMBER II

Before: Justice Julia Sebutinde, Presiding Judge Judge Richard Lussick Judge Teresa Doherty Registrar: Herman von Hebel Date: 19 July 2007 PROSECUTOR Against Alex Tamba Brima Brima Bazzy Kamara Santigie Borbor Kanu (Case No.SCSL-04-16-T)

SENTENCING JUDGEMENT

Office of the Prosecutor: Defence Counsel for Alex Tamba Brima: Christopher Staker Kojo Graham Karim Agha Glenna Thompson Chile Eboe-Osuji Anne Althaus Defence Counsel for Brima Bazzy Kamara: Andrew Daniels Moamed Pa-Momo Fofanah Defence Counsel for Santigie Borbor Kanu: Geert-Jan Alexander Knoops Abibola E. Manley-Spaine Carry Knoops 1792 part iv

I. Introduction ...... 1794 II. Preliminary Considerations ...... 1795 III. Applicable Law ...... 1795 A. Applicable Provisions ...... 1795 B. Sentencing Objectives ...... 1797 C. Sentencing Factors ...... 1798 1. Gravity of Offfence ...... 1798 2. Aggravating Circumstances ...... 1799 3. Mitigating Circumstances ...... 1800 IV. Sentencing Practice in the National Courts of Sierra Leone and Other Ad Hoc Tribunals ...... 1801 A. Submissions of the Parties...... 1801 B. Deliberations ...... 1802 (a) Sentencing Practice in Sierra Leone ...... 1802 (b) Sentencing Practice at other International Tribunals ...... 1803 V. Determination of Sentences ...... 1803 A. Alex Tamba Brima ...... 1804 1. Gravity of the Offfences ...... 1804 (a) Submissions of the Parties ...... 1804 (b) Deliberations ...... 1804 2. Individual Circumstances of Brima ...... 1806 (a) Submissions of the Parties ...... 1806 (b) Deliberations ...... 1807 3. Aggravating Circumstances ...... 1807 (a) Submissions of the Parties ...... 1807 (b) Deliberations ...... 1808 4. Mitigating Circumstances ...... 1808 (a) Submissions of Parties ...... 1808 (b) Deliberations ...... 1809 5. Remorse ...... 1809 B. Ibrahim Bazzy Kamara ...... 1810 1. Gravity of the Offfences ...... 1810 (a) Submissions of Parties ...... 1810 (b) Deliberations ...... 1810 2. Individual Circumstances of Kamara ...... 1811 (a) Submissions of Parties ...... 1811 (b) Deliberations ...... 1812 3. Aggravating Circumstances ...... 1812 (a) Submissions of Parties ...... 1812 (b) Deliberations ...... 1813 judgments 1793

4. Mitigating Circumstances ...... 1813 (a) Submissions of Parties ...... 1813 (b) Deliberations ...... 1814 C. Santigie Borbor Kanu ...... 1814 1. Gravity of the Offfences ...... 1814 (a) Submissions of Parties ...... 1814 (b) Deliberations ...... 1814 2. Individual Circumstances of Kanu ...... 1816 (a) Submissions of Parties ...... 1816 (b) Deliberations ...... 1817 3. Aggravating Circumstances ...... 1817 (a) Submissions of Parties ...... 1817 (b) Deliberations ...... 1817 4. Mitigating Circumstances ...... 1818 (a) Deliberations on Kanu’s Submissions ...... 1818 (i) Relatively Low Position ...... 1818 (ii) Flexibility in Sentencing Superior Responsibility ...... 1818 (iii) Family Background ...... 1819 (iv) Superior Orders...... 1819 (v) Collapse of Command Structure...... 1819 (vi) Lack of Formal Military Training ...... 1819 (vii) Absence of Knowledge of Criminality ...... 1820 (viii) Role of Protecting Women ...... 1820 (ix) Lengthy Proceedings ...... 1820 (x) Good Behaviour in Army, No Previous Convictions and Character Evidence ...... 1821 (xi) Breach of Conakry Accord by ECOMOG ...... 1821 (xii) Amnesty Provided ...... 1821 5. Remorse ...... 1822 VI. Disposition ...... 1822 1794 part iv

I. Introduction

1. On 20 June 2007, the Trial Chamber found each of the Accused, Alex Tamba Brima, Ibrahim Bazzy Kamara and Santigie Borbor Kanu, guilty on eleven Counts.1 The Trial Chamber scheduled a sentencing hearing for 16 July 2007 and the Parties submitted relevant information for the assistance of the Trial Chamber pursuant to Rule 100(A) of the Rules. 2. The “Prosecution Submission Pursuant to Rule 100(A) of the Rules of Procedure and Evidence” (“Prosecution Sentencing Brief”)2 was fĳiled on 28 June 2007. The Brima “Defence Submission Pursuant to Rule 100(A) of the Rules of Procedure and Evidence” (“Brima Sentencing Brief”),3 the “Kamara Sentencing Brief Pursuant to Rule 100(A) of the Rules of Procedure and Evidence” (“Kamara Sentencing Brief”)4 and the “Kanu Defence Sentencing Brief Pursuant to Rule 100(A) and Request for Non-Admission of Prosecution Exhibits” (“Kanu Sentencing Brief”)5 were all fĳiled on 5 July 2007. At a sentencing hearing on 16 July 20076 oral submissions were made by all Parties and statements were made by all three Accused. 3. The Prosecution submits that the appropriate sentence for Brima and Kamara is imprisonment for 60 years each and for Kanu 50 years.7 4. The Brima Defence makes no submissions as to what sentence should be imposed, but submits that Brima should receive a lesser sentence than that proposed by the Prosecution.8 The Kamara Defence also submits that Kamara should receive lighter sentences for each of the crimes for which he is convicted.9 The Kanu Defence submits that Kanu should only receive a sentence amounting to time served on remand or, in the alternative, that he should receive a lesser sentence than that proposed by the Prosecution.10 5. The Trial Chamber considered the written and oral submissions of the parties in the determination of appropriate sentences.

1 Prosecutor v. Brima, Kamara, Kanu, Case No. SCSL-04-16-T, Judgement, 20 June 2007 (“Judgement”). 2 SCSL-04-16-T-614. 3 SCSL-04-16-T-618. 4 SCSL-04-16-T-617. 5 SCSL-04-16-T-615. 6 See Prosecutor v. Brima, Kamara, Kanu, Case No. SCSL-04-16-T, Scheduling Order for Sentencing Hearing and Judgement, 10 July 2007. 7 Prosecution Sentencing Brief, para. 162. 8 Brima Sentencing Brief, para. 47. 9 Kamara Sentencing Brief, para. 59. 10 Kanu Sentencing Brief, para. 191. judgments 1795

II. Preliminary Considerations

6. The Kanu Defence objected to the documents annexed to the Prosecution Sentencing Brief on the grounds that (1) the Prosecution purported to introduce new evidence through these documents;11 (2) the Prosecution did not comply with its disclosure obligations under the rules in relation to (Annex G); the expert report was not objective and the Defence was not in a position to call their own expert in rebuttal on such short notice;12 (3) the introduction of new Prosecution evidence would amount to an abuse of process;13 (4) the witness statements provided by the Prosecution are inadmissible, or alternatively, the Defence should have had an opportunity to cross-examine the proposed witnesses;14 and (5) other material submitted by the Prosecution is irrelevant.15 7. In its oral arguments, the Prosecution submitted that it is allowed to introduce additional evidence at the sentencing stage. The Prosecution argued that since the Special Court has two distinct procedures it was not necessary for it to adduce such evidence at the trial stage.16 8. The Trial Chamber upholds the Defence objections and has not taken into consideration the documents annexed to the Prosecution Sentencing Brief. 9. The Trial Chamber recalls the general principle that only matters proved beyond reasonable doubt against the Accused are to be considered against him at the sentencing stage.17 Aggravating circumstances must be proved beyond reasonable doubt,18 whilst mitigating circumstances need only be proved on a balance of probability.19

III. Applicable Law

A. Applicable Provisions 10. Sentencing in the Special Court is regulated by the provisions of Article 19 of the Statute of the Special Court (“Statute”) and Rule 101 of the Rules of Procedure and Evidence (“Rules”). Article 19 of the Statute provides:

11 Kanu Sentencing Brief, para. 11. 12 Kanu Sentencing Brief, para. 12–24. 13 Kanu Sentencing Brief, para. 27. 14 Kanu Sentencing Brief para. 31. 15 Kanu Sentencing Brief, para. 33–42. 16 Oral Submissions, Transcript 16 July 2007, p. 4–7. 17 Prosecutor v. Muhimana, Case No. ICTR- 95-1B-T, Judgement and Sentence, 28 April 2005 (“Muhimana Trial Judgement”), para. 590; Prosecutor v. Elizaphan and Gérard Ntakirutimana, Case No. ICTR-96-10 & ICTR-96-17-T, Judgement and Sentence, 21 February 2003 (“Ntakiturimana Trial Judgement”), para. 893. 18 Prosecutor v. Tihomir Blaskić, Case No. IT-95-14-A, Judgement, 29 July 2004 (“Blaskić Appeal Judgement”), para. 688. 19 Blaskić Appeal Judgement, para. 697. 1796 part iv

1. The Trial Chamber shall impose upon a convicted person, other than a juvenile offfender, imprisonment for a specifĳied number of years. In determining the terms of imprisonment, the Trial Chamber shall, as appropriate, have recourse to the practice regarding prison sentences in the International Criminal Tribunal for Rwanda and the national courts of Sierra Leone. 2. In imposing the sentences, the Trial Chamber should take into account such factors as the gravity of the offfence and the individual circumstances of the convicted person. 3. In addition to imprisonment, the Trial Chamber may order the forfeiture of the property, proceeds and any assets acquired unlawfully or by criminal conduct, and their return to their rightful owner or to the State of Sierra Leone. Rule 101 of the Rules provides: (A) A person convicted by the Special Court, other than a juvenile offfender, may be sentenced to imprisonment for a specifĳic number of years. (B) In determining the sentence, the Trial Chamber shall take into account the factors mentioned in Article 19(2) of the Statute, as well as such factors as: (i) Any aggravating circumstances; (ii) Any mitigating circumstances including the substantial cooperation with the Prosecutor by the convicted person before or after conviction; (iii) The extent to which any penalty imposed by a court of any State on the convicted person for the same act has already been served, as referred to in Article 9(3) of the Statute. (C) The Trial Chamber shall indicate whether multiple sentences shall be served consecutively or concurrently. (D) Any period during which the convicted person was detained in custody pending his transfer to the Special Court or pending trial or appeal, shall be taken into consideration on sentencing. 11. According to the above provisions the Trial Chamber is obliged to take into account such factors as the gravity of the offfence and the individual circumstances of the convicted person. Aggravating and mitigating circumstances and the general practice regarding prison sentences in the International Criminal Tribunal for Rwanda (ICTR) and the domestic courts of Sierra Leone shall, where appropriate, be taken into account. These requirements are not exhaustive and the Trial Chamber has the discretion to determine an appropriate sentence depending on the individual circumstances of the case.20 12. The Trial Chamber agrees with the holding of the ICTR Appeals Chamber in Prosecutor v. Kambanda, that “[…] the Statute is sufffĳiciently liberally worded to allow for a single sentence to be imposed. Whether or not this practice is adopted is within the discretion of the Chamber.”21 The governing criteria is that the fĳinal

20 Prosecutor v. Momir Nikolić, Case No. IT-02-60/1-A, Judgement on Sentencing Appeal, 8 March 2006, (“Momir Nikolić Appeal Sentencing Judgement”), para. 106: “Sentencing decisions are discretionary and turn on the particular circumstances of each case.” 21 Kambanda Appeal Judgement, para. 113. judgments 1797 or aggregate sentence should reflect the totality of the culpable conduct, or generally, that it should reflect the gravity of the offfences and the overall culpability of the offfender, so that it is both just and appropriate.22 In the present case the Trial Chamber fĳinds it is appropriate to impose a global sentence for the multiple convictions in respect of Brima, Kamara and Kanu.

B. Sentencing Objectives 13. The preamble of the United Nations Security Council Resolution 1315 (2000)23 recognises that […] in the particular circumstances of Sierra Leone, a credible system of justice and accountability for the very serious crimes committed there would end impunity and would contribute to the process of national reconciliation and to the restoration and maintenance of peace.24 14. Retribution, deterrence and rehabilitation have been considered as the main sentencing purposes in international criminal justice.25 15. Furthermore, international criminal tribunals have held that retribution is not to be understood as fulfĳilling a desire for revenge but rather as duly expressing the outrage of the national and international community at these crimes,26 and that is meant to reflect a fair and balanced approach to punishment for wrongdoing. The penalty imposed must be proportionate to the wrongdoing. In other words, the punishment must fĳit the crime.27 16. International criminal tribunals have held further that the element of deterrence is important in demonstrating “that the international community is not

22 Čelebići Appeal Judgement, paras. 429–430. 23 UN Sec Res. 1315(2000), 14 August 2000. 24 UN Sec Res. 1315(2000), 14 August 2000, para. 7. 25 See also Prosecutor v. Zlatko Aleksovski, Case No. IT-95-14/1-A, Judgement, 24 March 2000 (“Aleksovski Appeal Judgement”), para. 185; Prosecutor v. Zejnil Delalić, Zdravko Mucić (aka “Pavo”), Hazim Delić and Esad Landžo (aka “Zenga”), Case No. IT-96-21-A, Judgement, 20 February 2001 (“Čelebići Appeal Judgement”), para. 806; see also Prosecutor v. Stevan Todorović, Case No. IT-95- 9/1-S, Sentencing Judgement, 31 July 2001 (“Todorović Sentencing Judgement”), paras. 28-29; Gacumbtsi Trial Judgement, para. 335; Semanza Trial Judgement, para. 554; Kambanda Trial Judgement, para. 28. 26 See also Aleksovski Appeal Judgement, para. 185; Prosecutor v. Dragan Nikolić, Case No. IT-94- 2-S, Sentencing Judgement, 18 December 2003, (“Dragan Nikolić Sentencing Judgement”), para. 140, stating that retribution should solely be seen as: “an objective, reasoned and measured determination of an appropriate punishment which properly reflects the […] culpability of the offfender, having regard to the intentional risk-taking of the offfender, the consequential harm caused by the offfender, and the normative character of the offfenders conduct. Furthermore, unlike vengeance, retribution incorporates a principle of restraint; retribution requires the imposition of a just and appropriate punishment, and nothing more,” R. v. M. (C.A.) (1996) 1 S.C.R. 500, para. 80 (emphasis in original). 27 Prosecutor v. Tadić, Case No. IT-94-1-A/IT-94-1-Abis, Judgement in Sentencing Appeals, 26 January 2000 (“Tadić Appeal Sentencing Judgement”), para. 48; Aleksovski Appeal Judgement, para. 185; Čelebići Appeal Judgement, para. 803; Todorović Sentencing Judgement, para. 30. 1798 part iv ready to tolerate serious violations of international humanitarian law and human rights.”28 It follows that the penalties imposed by the Trial Chamber must be suf- fĳicient to deter others from committing similar crimes.29 In the context of international criminal justice, it is recognised that one of the main purposes of a sentence is to “influence the legal awareness of the accused, the surviving victims, their relatives, the witnesses and the general public in order to reassure them that the legal system is implemented and enforced. Additionally, sentencing is intended to convey the message that globally accepted laws and rules have to be obeyed by everybody.”30 17. International criminal tribunals have noted that unlike the case in domestic courts, rehabilitation cannot be considered as a predominant consideration in determining a sentence, as the sentencing aims of national jurisdictions are diffferent from the aims of international criminal tribunals.31 18. In deciding appropriate sentences, the Trial Chamber has taken into account all the factors likely to contribute to the achievement of the above objectives.

C. Sentencing Factors 1. Gravity of Offfence 19. In determining an appropriate sentence, the gravity of the crime is the primary consideration or “litmus test.”32 The determination of the gravity of the crime must be individually assessed.33 In making such an assessment, the Trial Chamber may examine, inter alia, the general nature of the underlying criminal conduct;34 the form and degree of participation of the Accused35 or the specifĳic role played by the Accused in the commission of the crime;36 the degree of sufffering, impact or consequences of the crime for the immediate victim in terms of physical, emotional and psychological efffects;37 the efffects of the crime on relatives of the

28 Kambanda Trial Judgement, para. 28, endorsed in Aleksovski Appeal Judgement, para. 66. 29 Prosecutor v. Tadić, Case No. IT-94-1-A/IT-94-1-Abis, Judgement in Sentencing Appeals, 26 January 2000 (“Tadić Appeal Sentencing Judgement”), para. 48; Aleksovski Appeal Judgement, para. 185; Čelebići Appeal Judgement, para. 803; Todorović Sentencing Judgement, para. 30. 30 Nikolić Sentencing Judgement, para. 139. 31 Deronjić Appeal Judgement, paras. 136-137. 32 Čelebići Appeal Judgement, para. 731; Nikolić Appeal Judgement, para. 18. 33 Blaskić Appeal Judgement, para. 683; Prosecutor v. Blagojević and Dragan Jokić, IT-02-60, Judgement, 17 January 2005 (“Blagojević Trial Judgement”), para. 833. 34 Blaskić Appeal Chamber Judgement, para. 683; Blagojević Trial Judgement, para. 833. 35 Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-A, Judgement, 17 December 2004 (“Kordić Appeal Judgement”), para. 1061. 36 Blaskić Appeal Judgement, para. 683, Blagojević Trial Judgement, para. 833. 37 Blaskić Appeal Judgement, para. 683; Blagojević Trial Judgement, para. 833. judgments 1799 immediate victims and/or the broader targeted group;38 the vulnerability of the victims;39 and the number of victims.40 20. Where an Accused has been found liable as a commander pursuant to Article 6(3) of the Statute, two levels of consideration are necessary in determining the gravity of the offfence: (1) the gravity of the underlying crime committed by a subordinate under the efffective control of the Accused, and (2) the gravity of the Accused’s own conduct in failing to prevent or punish the crimes committed by that subordinate.41

2. Aggravating Circumstances 21. The aggravating and mitigating circumstances to be taken into account by the Trial Chamber are not exhaustively set out in the Rules.42 Thus, the Trial Chamber is tasked with the charge of weighing the individual circumstances of each case and has discretion to identify the relevant factors. The Trial Chamber may consider, for example, (i) the position of the accused, that is, his position of leadership, his level in the command structure, or his role in the broader context of the conflict […]; (ii) the discriminatory intent or the discriminatory state of mind for crimes for which such a state of mind is not an element or ingredient of the crime; (iii) the length of time during which the crime continued; (iv) active and direct criminal participation, if linked to a high-rank position of command, the accused’s role as fellow perpetrator, and the active participation of a superior in the criminal acts of subordinates; (v) the informed, willing or enthusiastic participation in crime; (vi) premeditation and motive; (vii) the sexual, violent, and humiliating nature of the acts and the vulnerability of the victims; (viii) the status of the victims, their youthful age and number, and the efffect of the crimes on them; (ix) the character of the accused; and (x) the circumstances of the offfences generally.43

38 Blaskić Appeal Judgement, para. 683; Prosecutor v. Stanislav Galić, Case No. IT-98-29-T, Judgement, 5 December 2003 (“Galić Trial Judgement”), para. 758. 39 Blaskić Appeal Judgement, para. 683. 40 Babić Trial Judgement, para. 47; Galić Trial Judgement, para. 758. 41 Čelebići Appeal Judgement, para. 732. 42 SCSL RPE, Rule 101(B). 43 Blaskić Appeal Judgement, para. 686 (citing Čelebići Appeal Judgement, para. 763); Jokić Sentencing Judgement, paras. 61-62; Tadić Appeal Judgement, paras. 55-56; Vasiljević Appeal Judgement, paras. 172-173; Vasiljević Trial Judgement, para. 277; Kunarac Appeal Judgement, paras. 356, 357; Todorović Trial Judgement, para. 57; Todorović Sentencing Judgement, para. 65; Krstić Trial Judgement, paras. 708, 711-712; Prosecutor v. Anto Furundžija, Case No. IT-95-17/1-T, Judgement, 10 December 1998 (“Furundžija Trial Judgement”), para. 281; Čelebići Appeal Judgement, paras. 736-737, 788; Jelisić Appeal Judgement, para. 86; Kayishema Appeal Judgement, para. 351; Krstić Appeal Judgement, para. 258; Kunarac Trial Judgement, paras. 864, 866 867; Kunarac Appeal Judgement, para. 353; Kunarac Appeal Judgement, para. 355; Furundžija Trial Judgement, para. 283; Tadić Sentencing Judgement, para. 19. 1800 part iv

22. The Trial Chamber may also consider the fact that attacks directed against protected persons were carried out in places of religious worship or sanctuary, to be an aggravating factor in sentencing. 23. Facts which go to proof of the gravity of the offfence and facts which constitute aggravating factors may overlap.44 The practice of some Trial Chambers has been to consider the gravity of the offfence together with aggravating circumstances.45 The Trial Chamber considers that, regardless of the approach, where a factor has already been taken into account in determining the gravity of the offfence, it cannot be considered additionally as an aggravating factor and vice versa.46 Similarly, if a factor is an element of the underlying offfence, then it cannot be considered as an aggravating factor.47 24. The Trial Chamber may consider the abuse of a position of power by an accused held criminally responsible for a crime under Article 6(1) of the Statute to be an aggravating factor.48 Where an accused has been found liable for the crimes of a subordinate under Article 6(3) of the Statute his/her mere position of command will not be considered by the Trial Chamber as an aggravating factor as it is an element of liability.49 However, where it has been proved that an accused actively abused his/her command position or otherwise promoted, encouraged or participated in the crimes of his/her subordinates, such conduct may amount to an aggravating circumstance.50

3. Mitigating Circumstances 25. Under Rule 101(B) any substantial cooperation with the Prosecutor by the convicted person before or after conviction must be considered as a mitigating circumstance.51 In addition, the Trial Chamber has the discretion to identify and weigh other mitigating factors according to the circumstances of each case, including, but not limited to (i) expression of remorse or a degree of acceptance of guilt; (ii) voluntary surrender; (iii) good character with no prior criminal convictions; (iv) personal and family circumstances; (v) the behaviour or conduct of the

44 Bralo Trial Judgement, para. 27. 45 Gacumbitsi, Trial Judgement, paras. 58-59; Prosecutor v. Ruggiu, Case No. ICTR-97-32-I, Judgement and Sentence, 1 June 2000 (“Ruggiu Trial Judgement”), para. 48. 46 Deronjić Appeal Judgement, paras. 106-107. 47 Kordić Appeal Judgement, para. 1089; Blagojević Trial Judgement, para. 849; Blaskić Appeal Judgement, para. 693. 48 Deronjić Appeal Judgement, para. 67; Babić Appeal Judgement, para. 80; Prosecutor v. Zoran Kupreškić, Mirjan Kupreškić, Vlatko Kupreškić, Drago Josipović and Vladimir Šantić (aka “Vlado”), Case No. IT-95-16-A, Judgement, 23 October 2001 (“Kupreškić Appeal Judgement”), para. 451. 49 Jokić Appeal Judgement, para. 28; Deronjić Appeal Judgement, para. 67; Kayishema Judgement, at para. 15; Babić Sentencing Judgement, at para. 60. 50 Čelebići Appeal Judgement, para. 736; Obrenović Trial Judgement, para. 99. 51 SCSL RPE, Rule 101(B). judgments 1801 accused subsequent to the conflict; (vi) duress and indirect participation; (vii) diminished mental responsibility; (viii) the age of the accused; (ix) assistance to detainees or victims; and (x) in exceptional circumstances, poor health.52

IV. Sentencing Practice in the National Courts of Sierra Leone and Other Ad Hoc Tribunals

A. Submissions of the Parties 26. The Prosecution submits that comparisons with sentences imposed by the ICTR are of limited value because most ICTR cases concern genocide which is not a crime within the jurisdiction of the Special Court. Further, in many cases the penalty for genocide has been life imprisonment, which is not a sentence that the Special Court can impose.53 27. The Prosecution argues that no specifĳic guidance is discernible from the national courts of Sierra Leone on sentencing practice, since war crimes and crimes against humanity are not specifĳically addressed under Sierra Leonean law.54 However, as a general overview, the Prosecution notes that sentences imposed for murder include the death penalty; while manslaughter, attempted murder, rape and malicious damage are punishable by the death penalty or lengthy terms of imprisonment, including life imprisonment.55 28. The Prosecution thus submits that the crimes of which Brima, Kamara, and Kanu were convicted would be likely to lead to a sentence of life imprisonment at the ICTR. The Prosecution accordingly contends that the sentence imposed on Brima and Kamara should amount to an approximation of life imprisonment, while a very long sentence of imprisonment is warranted for Kanu.56 29. The Brima Defence submits that the Trial Chamber should not seek guidance from the unduly harsh sentencing practice in Sierra Leone. In the alternative, the Defence argues that Sierra Leonean practice can only be considered as a guide but is not binding on the Trial Chamber.57 It further refers to the Serushago Trial Chamber’s assessment of mitigating circumstances in that case,58 and cites a number of cases before the ICTY and ICTR in which high ranking offfĳicials

52 Babić Appeal Judgement, para. 43; Deronjić Trial Judgement para. 156. 53 Prosecution Sentencing Brief, paras. 23–24. 54 Prosecution Sentencing Brief, para. 34. 55 Prosecution Sentencing Brief, paras. 35-39. 56 Prosecution Sentencing Brief, paras. 76-77, 108-110, 130–132. 57 Brima Sentencing Brief, paras. 10 and 11. 58 Brima Sentencing Brief, para. 42. 1802 part iv convicted on numerous counts were given lighter sentences than those proposed by the Prosecutor in the instant case.59 30. The Kamara Defence notes that the Kamara was convicted of having ordered the killing of fĳive girls in Karina, Bombali District, and submits that the average sentencing period at the ICTR for the offfences of murder and extermination has been between ten and fĳifteen years.60 It further argues that Sierra Leonean practice on sentencing for murder is not binding on the Trial Chamber.61 31. The Kanu Defence proposes that the Trial Chamber should take into consideration the sentencing practice of the ICTY, as it is a basis for ICTR practice, and may provide the Trial Chamber with additional guidance.62 The Prosecution would appear to agree as it provided a chart on ICTY sentencing practice in Annex B of its Sentencing Brief. The Kanu Defence contends that in Sierra Leone, a sentence of life imprisonment can be imposed for a range of crimes including “rape, burglary and gilding coinage”63 while the ICTR has only imposed life sentences on individuals convicted of the crime of genocide.64 In oral arguments, the Kanu Defence further submitted that Sierra Leonean sentencing practice is only relevant for convictions under Article 5 of the Statute which deals with crimes under Sierra Leonean law, which crimes were not charged in the indictment.65

B. Deliberations (a) Sentencing Practice in Sierra Leone 32. Article 19(1) states that as appropriate, the Trial Chamber shall have recourse to the practice regarding prison sentences in the national courts of Sierra Leone as and when appropriate. This does not oblige the Trial Chamber to conform to that practice, but rather to take into account that practice as and when appropriate.66 The Trial Chamber fĳinds that it is not appropriate to adopt the practice in the present case since none of the Accused was indicted for, nor convicted of, offfences under Article 5 of the Statute.

59 Brima Sentencing Brief, paras. 50-56 citing the cases: Blaskić Trial Judgement, para. 808; Prosecutor v. Mladen Naletilić (aka “Tuta”) and Vinko Martinović (aka “Štela”), Case No. IT-98-34-T, Judgement, 31 March 2003 (“Naletilić Trial Judgement”), para. 74 before the ICTY and Akayesu before the ICTR. 60 Kamara Sentencing Brief, paras. 22-28. citing Imanishimwe, Akayesu, Ntakirutimana, Muvunyi, Serushago at the ICTR and Kordić at the ICTY. 61 Kamara Sentencing Brief, para. 29. 62 Kanu Sentencing Brief, para. 57. 63 Kanu Sentencing Brief para. 72. 64 Kanu Sentencing Brief, para. 72. 65 Transcipt, 16 July 2007, p. 76. 66 See also Serushago Appeal Judgement, para. 30; Semanza Appeal Judgement, para. 377. judgments 1803

(b) Sentencing Practice at other International Tribunals 33. Article 19(1) of the Statute provides that the Trial Chamber shall, where appropriate, have recourse to the practice regarding prison sentences in the ICTR in determining the terms of imprisonment. The Trial Chamber will also consider the sentencing practice of the ICTY as its statutory provisions are analogous to those of the Special Court and the ICTR. The Trial Chamber is therefore guided by the sentencing practices at both the ICTR and the ICTY. The Chamber further notes that the pronouncement of global sentences is a well established practice at those tribunals.67 The mitigating and aggravating factors that the Trial Chamber has considered in the instant case have also been widely considered by the ICTR and ICTY.68

V. Determination of Sentences

34. Brima, Kamara and Kanu have been found responsible for some of the most heinous, brutal and atrocious crimes ever recorded in human history. Innocent civilians – babies, children, men and women of all ages – were murdered by being shot, hacked to death, burned alive, beaten to death. Women and young girls were gang raped to death. Some had their genitals mutilated by the insertion of foreign objects. Sons were forced to rape mothers, brothers were forced to rape sisters. Pregnant women were killed by having their stomachs slit open and the foetus removed merely to settle a bet amongst the troops as to the gender of the foetus. Men were disembowelled and their intestines stretched across a road to form a barrier. Human heads were placed on sticks on either side of the road to mark such barriers. Hacking offf the limbs of innocent civilians was commonplace. The victims were babies, young children and men and women of all ages. Some had one arm amputated, others lost both arms. For those victims who survived an amputation, life was instantly and forever changed into one of dependence. Most were turned into beggars unable to earn any other living and even today cannot

67 Kambanda Appeal Judgement, para. 113. Gacumbitsi Trial Chamber Judgement, para. 356. Nahimana Trial Judgement, paras. 1105, 1106, 1108. Muvunyi, Trial Chamber Judgement, para. 545; Simba Trial Judgement, para. 445. 68 Blaskić Judgement, supra note 22, at para. 686 (citing Čelebići Appeal Judgement, para. 763); Jokić Sentencing Judgement, paras. 61-62; Tadić Appeal Judgement, paras. 55–56; Vasiljević Appeal Judgement, paras. 172–173; Vasiljević Trial Judgement, para. 277; Kunarac Appeal Judgement, para. 357; Todorović Trial Judgement, para. 57; Kunarac Appeal Judgement, para. 356; Todorović Sentencing Judgement, para. 65; Krstić Trial Judgement, para. 708; Furundžija Trial Judgement, para. 281; Čelebići Appeal Judgement, paras. 736–737; Jelisic Appeal Judgement, para. 86; Kayishema Appeal Judgement, para. 351; Krstić Trial Judgement, paras. 711–712; Krstić Appeal Judgement, para. 258; Kunarac Trial Judgement, para. 867, and Kunarac Appeal Judgement, para. 353; Kunarac et al. Trial Judgement, para. 864, 866; Kunarac et al. Appeal Judgement, para. 355; Furundžija Trial Judgement, para. 283; Čelebići Appeal Judgement, para. 788; Tadić Sentencing Judgement, para. 19). 1804 part iv perform even the simplest of tasks without the help of others. Children were forcibly taken away from their families, often drugged and used as child soldiers who were trained to kill and commit other brutal crimes against the civilian population. Those child soldiers who survived the war were robbed of a childhood and most of them lost the chance of an education. 35. The Trial Chamber cannot recall any other conflict in the history of warfare in which innocent civilians were subjected to such savage and inhumane treatment. 36. It is against this background that Brima, Kamara and Kanu are sentenced for the crimes of which each of them have been convicted.

A. Alex Tamba Brima 1. Gravity of the Offfences (a) Submissions of the Parties 37. The Prosecution submits that Brima was convicted of crimes which involved a very large number of victims.69 38. In relation to the role and participation of Brima in the crimes of which he was convicted, the Prosecution submits that he was “not an unwilling participant” but rather “a primary initiator and aggravator of the violence.”70 Most of the crimes were deliberate, unprovoked, brutal and committed against unarmed civilians including men, women and children, the intention of which was to kill, mutilate, abduct or enslave or otherwise terrorise or collectively punish the civilian population and to shock the international community.71 39. The Brima Defence concurs that the crimes for which he was convicted were serious, yet submits that the Trial Chamber must consider the context of guerrilla warfare in determining the extent and gravity of the offfences, as well as the difffĳi- culty in ascertaining the precise number of victims.72 (b) Deliberations 40. The Trial Chamber considers that the crimes for which Brima was convicted were heinous, deliberate, brutal and targeted very large numbers of unarmed civilians and had a catastrophic an irreversible impact on the lives of the victims and their families.

69 Prosecution Sentencing Brief, paras. 78–79; see also Oral Submissions, Transcript 16 July 2007, pp. 19-20. 70 Prosecution Sentencing Brief, para. 86. 71 Oral Submissions, Transcript 16 July 2007, p. 19. 72 Brima Defence Sentencing Brief, para. 12. judgments 1805

41. Brima was convicted under Article 6(1) and under Article 6(3). Specifĳically, the Trial Chamber found Brima responsible under Article 6(1) for: 1. committing extermination in Karina, Bombali District; 2. committing the murder of fĳive civilians at State House, Freetown, Western Area; 3. committing the mutilation of one civilian in Freetown, Western Area; 4. ordering the terrorisation of the civilian population in: a. Karina, Bombali District; b. Rosos, Bombali District; and c. Freetown, Western Area; 5. ordering the collective punishment of the civilian population in Freetown, Western Area; 6. ordering and planning the recruitment and use of child soldiers in: a. Freetown, Western Area; and b. Rosos, Bombali District; 7. ordering the murders of civilians at: a. Mateboi, Bombali District; b. Gbendembu, Bombali District; c. State House, Freetown, Western Area; d. Kissy Mental Home, Freetown, Western Area; and e. Rogbalan Mosque, Freetown, Western Area; 8. ordering and aiding and abetting the murders of civilians in Fourah Bay, Freetown, Western Area; 9. ordering and planning the enslavement of civilians in Freetown, Western Area; 10. ordering the looting of civilian property; Freetown, Western Area; 11. planning the commission of outrages upon personal dignity in the form of sexual slavery in Bombali District and the Western Area; 12. planning the enslavement of civilians in Bombali District. 42. Brima was further found liable under Article 6(3) for crimes committed by his subordinates throughout Bombali District and Freetown and the Western Area. 43. With regards to the crimes for which Brima is responsible under Article 6(1), the Trial Chamber recalls its factual fĳindings that Brima was the primary perpetrator of the murders of at least 12 civilians in a mosque during the attack on Karina,73 a fact indicative of the particular gravity of this offfence. 44. With regards to the recruitment and use of child soldiers, the Trial Chamber recalls that the young victims were abducted from their families, often in

73 Judgement, para. 1709. 1806 part iv situations of extreme violence, often drugged and forcibly trained to kill and to commit crimes against innocent civilians. These children were robbed of their childhood and many lost the chance of an education. 45. With regards to the crimes for which Brima is responsible under Article 6(3) the Trial Chamber has examined the gravity of the crimes committed by subordinates under his efffective control. Many of these crimes, detailed in the Trial Chamber’s Factual Findings are of a particularly heinous nature. The Trial Chamber recalls in particular that in Karina, Brima’s subordinates unlawfully killed children by throwing them into the flames of burning houses.74 In Rosos, fĳive of Brima’s subordinates beat and orally and vaginally gang-raped a civilian75 and another four raped a civilian so brutally that she was in great pain, could not stand up and testifĳied that “it seem[ed] as though all my guts were coming out.”76 With regards to the sexual crimes in general, the Trial Chamber notes that many of the victims were particularly young and vulnerable, were held in captivity for protracted periods, often coupled with unwanted pregnancy/miscarriages and endured social stigma. 46. The Trial Chamber considers the crime of mutilation was particularly grotesque and malicious. Victims who had their limbs hacked offf not only endured extreme pain and sufffering, if they survived, but lost their mobility and capacity to earn a living or even to undertake simple daily tasks. They have been rendered dependent on others for the rest of their lives. 47. The Trial Chamber dismisses the Defence arguments that the guerrilla nature of the conflict lessens the grievous nature of the offfences.

2. Individual Circumstances of Brima (a) Submissions of the Parties 48. The Prosecution submits that the personal circumstances of Brima do not justify any mitigation of his sentence since Brima was a professional soldier who by his own admission knew that it was wrong to commit crimes against the civilian population; was not of a young age, being 27-28 years old in the period in which the crimes occurred; and has family members who are in a position to care for his dependants, including his wife who receives his military pension.77 49. The Brima Defence submits that the Trial Chamber must take into account the culture of Sierra Leone, where family responsibilities are paramount,

74 Judgement, para. 888. 75 Judgement, paras. 1031–1032. 76 Judgement, para. 1035. 77 Prosecution Sentencing Brief, paras. 89–90. judgments 1807 emphasising that Brima has six children and two wives as dependants.78 In addition, the Brima Defence submits that Brima’s age is a mitigating factor, particularly given the young age at which he joined the army and the influence of the army on his future development.79 50. The Brima Defence further submits that the detrimental efffect that a long sentence would have on Brima’s ill health is a mitigating factor.80 (b) Deliberations 51. The Trial Chamber fĳinds that nothing in Brima’s personal circumstances jus- tifĳies any mitigation of his sentence. 52. The Trial Chamber considers that Brima was a professional soldier whose duty it was to protect the people of Sierra Leone. The fact that he instead attacked innocent and unarmed civilians is considered by the Trial Chamber to be an aggravating factor.

3. Aggravating Circumstances (a) Submissions of the Parties 53. The Prosecution submits that signifĳicant aggravating circumstances exist in Brima’s case, including: (i) the vulnerability of many of the civilian victims, namely young children, especially young girls subjected to sexual crimes, pregnant women and members of religious orders;81 (ii) the particularly brutal and heinous nature of the crimes, including the splitting open of the stomach of a pregnant woman and removal of the foetus, the burning of civilians alive, brutal gang rapes, the drugging of child soldiers;82 and the amputations of limbs;83 (iii) the use of coercion by Brima, in particular the use of his phrase “minus you, plus you,” to secure the commission of crimes by his subordinates;84 (iv) the fact that Brima was a senior government offfĳicial prior to the commission of the crimes, and the overall commander at the time of the commission of the crimes for which he was convicted.85 The Prosecution submits that Brima’s ongoing failure to fulfĳil his duty to prevent or punish had an “implicit efffect of encouraging subordinates to believe that they [could]

78 Brima Sentencing Brief, paras. 25–26, 38, 40. 79 Brima Sentencing Brief, paras. 32–33; citing Erdemović Trial Judgement, para. 16. 80 Brima Sentencing Brief, para. 22–24. 81 Prosecution Sentencing Brief, paras. 92–93. 82 Prosecution Sentencing Brief, paras. 95–96. 83 Oral Submissions, Transcript 16 July 2007, pp. 31–33. 84 Prosecution Sentencing Brief, para. 99. 85 Prosecution Sentencing Brief, paras. 100–101. 1808 part iv

commit further crimes with impunity,” thus contributing to the scale of crimes committed.86 54. The Brima Defence made no submissions with respect to aggravating circumstances in its Sentencing Brief nor in their oral arguments. (b) Deliberations 55. The Trial Chamber agrees that all the factors submitted by the Prosecution are aggravating factors. Moreover, the Trial Chamber fĳinds that Brima’s position as overall commander of the troops is an aggravating factor in relation to the crimes for which he is responsible under Article 6(1) of the Statute. The use by Brima of tactics of extreme coercion, illustrated by the use of the infamous phrase “minus you, plus you,” to force his subordinates to engage in criminal conduct constitutes an abuse of his position of power which is an aggravating factor in his case.87 56. The Trial Chamber also fĳinds that Brima was a zealous participant in some of the crimes for which he has been found liable. This factor will be considered as an aggravating circumstance. 57. The Trial Chamber further fĳinds that the prolonged period of time over which the enslavement crimes were committed, the vulnerability of the victims and the targeting of places of worship or sanctuary are all aggravating factors.

4. Mitigating Circumstances (a) Submissions of Parties 58. The Prosecution submits that no mitigating circumstances exist in respect of Brima, as he did not at any time cooperate with the Prosecution or express any remorse and there is no evidence that he acted under duress.88 59. In relation to Brima’s alleged activities as a member of the Commission for the Consolidation of Peace, the Prosecution contends that no evidence was adduced at trial as to the particular functions of this body or Brima’s role within it. The Prosecution further submits that given the gravity of the crimes, very little, if any, weight should be given to this mitigating factor.89 60. In addition, the Prosecution argues that Brima cannot plead good behaviour as he was responsible for various misdemeanours in detention as well as outbursts in court which on one occasion led to the adjournment of proceedings.90

86 Prosecution Sentencing Brief, para. 102. 87 Judgement, para. 593. 88 Prosecution Sentencing Brief, paras. 103–105. 89 Prosecution Sentencing Brief, para. 105. 90 Prosecution Sentencing Brief, para. 106. judgments 1809

The Prosecution further submits that Brima’s ill-health should be given little weight as a mitigating factor as high blood pressure and hypertension are common ailments which, with proper medication, are rarely life threatening.91 61. The Brima Defence submits that Brima is a person of good character with a history of community philanthropy, no prior offfences and a military record which includes assisting the government when the RUF broke the ceasefĳire in 2000 and in negotiations to secure the release of kidnapped UNAMSIL and ECOMOG personnel.92 62. The Brima Defence argues that Brima’s membership of the Commission for the Consolidation of Peace signifĳies a contribution to peace in the region which should be treated as a mitigating factor.93 63. The Brima Defence further emphasises that Brima was only convicted of offfences in the Western Area and Bombali Districts, and was found not guilty for crimes committed in Bo, Kenema, Kailahun, Kono and Port Loko Districts.94 The Brima Defence further argued that a harsh sentence would not “promote the cause of reconciliation.”95 (b) Deliberations 64. The Trial Chamber does not consider Brima’s service in the Army without incident to be a mitigating factor96 as this was merely his duty. 65. The Trial Chamber further fĳinds that Brima’s alleged acts of philanthropy and alleged involvement in the Commission for the Consolidation of Peace are not mitigating factors. 66. The fact that Brima’s convictions relate to crimes committed in two districts, as opposed to the seven districts particularised in the Indictment, in no way lessens the seriousness of the offfences.

5. Remorse 67. The Trial Chamber fĳinds that the statement made by Brima at the sentencing hearing, whilst containing a fleeting reference to “remorse to the victims of this situation”97 cannot be accepted as an expression of genuine remorse. This fact cannot therefore be taken as mitigating his sentence.

91 Prosecution Sentencing Brief, para. 107. 92 Brima Sentencing Brief, paras. 16–21, 25–29. 93 Brima Sentencing Brief, para. 30, citing Plavšić Trial Judgement, para. 94. 94 Brima Sentencing Brief, paras. 12, 47. 95 Oral Submissions, Transcript 16 July 2007, p. 47. 96 Exhibit D-14. 97 Oral Submissions, Transcript 16 July 2007, p. 51. 1810 part iv

B. Ibrahim Bazzy Kamara 1. Gravity of the Offfences (a) Submissions of Parties 68. The Prosecution submits that on account of the Trial Chamber’s broad fĳind- ings of Kamara’s liability under Article 6(3), the crimes for which he was convicted involved a very large number of victims, particularly in crimes sites such as Tombodu in Kono District.98 69. The Kamara Defence submits that Kamara’s convictions under Article 6(1) of the Statute were based on one incident of ordering the killings of fĳive girls in Bombali District and two incidents of aiding and abetting the commission of various crimes in Freetown and the Western Area and, while not denying the seriousness of the crimes for which Kamara has been convicted, submits this should be a relevant factor in determining the gravity of the offfences.99

(b) Deliberations 70. The Trial Chamber found Kamara responsible under Article 6(1) for: 1. ordering the murder of fĳive civilians in Karina, Bombali District; 2. planning the abduction and use of child soldiers in Bombali District and the Western Area; 3. planning the commission of outrages upon personal dignity in the form of sexual slavery in Bombali District and the Western Area; 4. planning the enslavement of civilians in Bombali and Western Area; 5. aiding and abetting the murder/extermination of civilians at Fourah Bay, Freetown, Western Area; 6. aiding and abetting the mutilation of civilians in Freetown, Western Area. 71. Kamara was further found liable under Article 6(3) for crimes committed by his subordinates at Tombodu, Kono District and throughout Bombali District, the Western Area and Port Loko District. 72. The crimes for which Kamara was convicted were heinous, deliberate, brutal and targeted very large number of unarmed civilians and had a catastrophic and irreversible impact on the lives of the victims and their families. 73. In relation to his criminal responsibility the Trial Chamber fĳinds that the crimes committed by his subordinates were crimes of the most serious gravity and Kamara’s failure to prevent or punish the commission of these crimes must be considered correspondingly grave. The Trial Chamber recalls its factual fĳinding

98 Prosecution Sentencing Brief, paras. 110–113. 99 Kamara Sentencing Brief, paras. 16–19, 22. judgments 1811 that in Tombodu, Kamara’s subordinates purposely trapped some 68 people in a house and burned them alive.100 And that another 47 people were beheaded and thrown into a diamond pit.101 74. The Trial Chamber is satisfĳied that the crimes committed by Kamara or by his subordinates afffected a very large number of victims. With regards to the recruitment and use of child soldiers, the Trial Chamber recalls that the victims were abducted from their families, often in situations of extreme violence, often drugged and trained to kill and forced to commit crimes against innocent civilians. These children were robbed of their childhood and many lost the chance of an education. 75. With regards to the crimes for which Kamara is responsible under Article 6(3) the Trial Chamber has examined the gravity of the crimes committed by subordinates under his efffective control. Many of these crimes, detailed in the Trial Chamber’s Factual Findings are of a particularly heinous nature. The Trial Chamber recalls in particular that in Karina, Kamara’s subordinates unlawfully killed children by throwing them into the flames of burning houses.102 In Rosos, fĳive of Kamara’s subordinates beat and orally and vaginally gang-raped a civil- ian103 and another four raped a civilian so brutally that she was in great pain, could not stand up and testifĳied that “it seem[ed] as though all my guts were coming out.”104 With regards to the sexual crimes in general, the Trial Chamber notes that many of the victims were particularly young and vulnerable, were held in captivity for protracted periods, often coupled with unwanted pregnancy/miscarriages, and endured social stigma. 76. The Trial Chamber considers the crime of mutilation was particularly grotesque and malicious. Victims who had their limbs hacked offf not only endured extreme pain and sufffering if they survived, but lost their mobility and capacity to earn a living or even to undertake simple daily tasks. 77. All of the above factors point to the gravity of the offfences. 2. Individual Circumstances of Kamara (a) Submissions of Parties 78. The Prosecution submits that the personal circumstances of Kamara do not warrant any mitigation of his sentence. The Prosecution submits that Kamara was a professional soldier who must have known it was wrong to commit crimes

100 Judgement, paras. 848–849. 101 Judgement, para. 849. 102 Judgement, para. 888. 103 Judgement paras. 1031–1032. 104 Judgement para. 1035. 1812 part iv against civilians and that his dependants can presumably rely on his military pension and his other family members for support.105 79. The Kamara Defence submits that Kamara gave loyal service for many years to the Sierra Leone Army, which he joined at a young age.106 Additionally, the Kamara Defence submits that Kamara was involved in a number of activities that enhanced peace and reconciliation in Sierra Leone, including negotiating the release of around 200 children from the West Side Boys to the Red Cross and UNICEF in 1999, taking part in military action against the RUF in 2000 and working for the Commission for the Consolidation of Peace in Sierra Leone.107 The Kamara Defence submits that Kamara’s personal circumstances should be taken into account in mitigation of his sentence. (b) Deliberations 80. The Trial Chamber fĳinds that nothing in Kamara’s personal circumstances justifĳies any mitigation of his sentence. 81. The Trial Chamber considers that Kamara was a professional soldier whose duty it was to protect the people of Sierra Leone. The fact that he instead attacked innocent and unarmed civilians is considered by the Trial Chamber to be an aggravating factor.

3. Aggravating Circumstances (a) Submissions of Parties 82. The Prosecution submits a number of aggravating circumstances exist in the case of Kamara, including: 1. the vulnerability of many of the civilian victims, especially young children and pregnant women;108 2. the heinous nature of the crimes, including the burning alive of civilians in Karina and Tombodu;109 and 3. the fact that Kamara was a senior government offfĳicial prior to the commission of the crimes, and a senior commander at the time of the commission of the crimes.110 In the Prosecution’s view, the failure of Kamara to fulfĳil his duty to prevent or punish “shows a total disregard for the sanctity for human life and dignity.”111

105 Prosecution Sentencing Brief, paras. 117–120. 106 Kamara Sentencing Brief, paras. 32–34. 107 Kamara Sentencing Brief, paras. 35–37. 108 Prosecution Sentencing Brief, para. 122. 109 Prosecution Sentencing Brief, para. 124. 110 Prosecution Sentencing Brief, paras. 126–127. 111 Prosecution Sentencing Brief, para. 125. judgments 1813

83. The Kamara Defence contends that Kamara was a “quiet, calm, non-violent and often passive and unrecognised “participant” in the crimes rather than an active and direct participant like Brima.112 The Kamara Defence accordingly submits that Brima and Kamara should not be viewed as equally liable for the purposes of sentencing.113 84. The Kamara Defence submits that Kamara’s position as a senior government offfĳicial prior to the commission of the crimes cannot be used as an aggravating circumstance.114 The Kamara Defence further argues that, although the offfences for which Kamara has been convicted are serious, “they occurred in situations in which [he] lacked clear sufffĳicient command and control.”115 (b) Deliberations 85. The Trial Chamber agrees that all of the factors submitted by the Prosecution are aggravating factors. Moreover, the Trial Chamber has given consideration to the vulnerability of some of the victims of the crimes for which Kamara was convicted with regards to the gravity of the offfence and will not consider this factor additionally as an aggravating circumstance. 86. The Trial Chamber also fĳinds that the killing of civilians deliberately locked in their homes and set ablaze, as was ordered by Kamara and carried out by his subordinates, is a violent and cruel circumstance of the offfence amounting to an aggravating factor. Further, this particular incident shows that Kamara was a violent and active participant in the crimes, contrary to the Defence assertions. 87. The Trial Chamber further fĳinds that the prolonged period of time over which the enslavement crimes were committed, the vulnerability of the victims and the targeting of places of worship or sanctuary are all aggravating factors. 88. The Trial Chamber does not consider Kamara’s position in the AFRC government prior to the commission of the offfences to be an aggravating factor. However, the Trial Chamber considers his position of command authority in relation to the crimes for which he has been found liable under Article 6(1) of the Statute to be an aggravating factor.

4. Mitigating Circumstances (a) Submissions of Parties 89. The Prosecution submits that no mitigating circumstances exist in respect of Kamara, as he did not at any time cooperate with the Prosecution or express any remorse and there is no evidence that he acted under duress.116

112 Kamara Sentencing Brief, para. 40; see also Oral Submissions, Transcript 16 July 2007, p. 54. 113 Kamara Sentencing Brief, paras. 39–41; see also Oral Submissions, Transcript 16 July 2007, p. 54. 114 Kamara Sentencing Brief, para. 47. 115 Kamara Sentencing Brief, para. 44. 116 Prosecution Sentencing Brief, paras. 128–129. 1814 part iv

90. The Kamara Defence submits that mitigating factors in the case of Kamara include the absence of a prior criminal record; the stressful environment prevailing at the time of the offfences; and his responsibilities as an income earner for his large family.117 (b) Deliberations 91. The Trial Chamber fĳinds that there are no mitigating circumstances in Kamara’s case. In particular, although Kamara chose to address the Trial Chamber at the sentencing hearing, he failed to express any genuine remorse whatsoever for his crimes.118

C. Santigie Borbor Kanu 1. Gravity of the Offfences (a) Submissions of Parties 92. The Prosecution submits that the Accused Kanu was criminally responsible under Article 6(1) for crimes involving a number of victims and that the extent of his liability under Article 6(3) is particularly signifĳicant as he was found to be responsible for all crimes committed in Bombali and the Western Area.119 93. The Kanu Defence submits that the RUF was responsible for the bulk of human rights violations in Sierra Leone and this “historical broader picture […] should be reflected in the sentencing.”120

(b) Deliberations 94. The Trial Chamber found Kanu responsible under Article 6(1) for: i. committing the mutilation of civilians in: a. Kissy, Freetown; and b. Upgun, Freetown; ii. committing the looting of civilian property in Freetown; iii. ordering the murder of persons hors de combat at State House in Freetown; iv. ordering the murder of civilians at Rogbalan Mosque in Freetown; v. ordering the mutilations of civilians at: a. Ferry Junction, Freetown; and b. Upgun, Freetown; vi. planning the abduction and use of child soldiers in Bombali District and the Western Area;

117 Kamara Sentencing Brief, paras. 32, 53–55. 118 Oral Submissions, Transcript 16 July 2007, p. 59. 119 Prosecution Sentencing Brief, paras. 133–135. 120 Kanu Sentencing Brief, paras. 85–86. judgments 1815

vii. planning the commission of outrages upon personal dignity in the form of sexual slavery in Bombali District and the Western Area; viii. planning the enslavement of civilians on numerous occasions in Bombali District and the Western Area; ix. instigating the murder of civilians in Freetown; and x. aiding and abetting the murder/extermination of civilians at Fourah Bay in Freetown, and the Western Area. 95. Kanu was further found liable under Article 6(3) for crimes committed by his subordinates throughout Bombali District and Freetown and the Western Area. 96. With regards to the crimes for which Kanu is responsible under Article 6(3) the Trial Chamber has examined the gravity of the crimes committed by subordinates under his efffective control. Many of these crimes, detailed in the Trial Chamber’s Factual Findings are of a particularly heinous nature. The Trial Chamber recalls in particular that in Karina, Kanu’s subordinates unlawfully killed children by throwing them into the flames of burning houses.121 In Rosos, fĳive of Kanu’s subordinates beat and orally and vaginally gang-raped a civilian122 and another four raped a civilian so brutally that she was in great pain, could not stand up and testifĳied that “it seem[ed] as though all my guts were coming out.”123 With regards to the sexual crimes in general, the Trial Chamber notes that many of the victims were particularly young and vulnerable, were held in captivity for protracted periods often coupled with unwanted pregnancy/miscarriages and endured social stigma. 97. The Trial Chamber considers the crime of mutilation was particularly grotesque and malicious. Victims who had their limbs hacked offf not only endured extreme pain and sufffering if they survived, but lost their mobility and capacity to earn a living or even to undertake simple daily tasks. 98. The Trial Chamber dismisses the Defence arguments that the RUF was responsible for the bulk of human rights violations in Sierra Leone and fĳinds that this allegation cannot be a mitigating factor. 99. The Trial Chamber found that Kanu was a direct participant in unlawful killings, mutilations, the recruitment and use of the child soldiers, outrages on personal dignity, and enslavement.

121 Judgement, para. 888. 122 Judgement, paras. 1031–1032. 123 Judgement, para. 1035. 1816 part iv

2. Individual Circumstances of Kanu (a) Submissions of Parties 100. The Prosecution submits that the personal circumstances of Kanu do not warrant any mitigation of his sentence, as Kanu was a professional soldier who must have known that it was wrong to commit crimes against civilians; was not of a young age being in his thirties in the period in which the crimes were committed; and is without any pressing personal circumstances or family concerns to justify mitigation.124 101. The Kanu Defence submits that the behaviour of Kanu after the conflict constitutes an individual circumstance which justifĳies mitigation, referring spe- cifĳically to his role in the Commission for Consolidation of Peace, his role in the “May 8th incident” and his role after the 1999 Lomé Peace Agreement.125 102. In relation to the Lomé Peace Agreement, the Kanu Defence submits that Kanu was an early supporter of peace who worked with ECOMOG and UNAMSIL in Freetown to build confĳidence between the government, the ex-SLAs and the RUF. In addition, Kanu was allegedly one of fĳive people commended by UN Special Envoy Francis Okello for his assistance in working to disarm the West Side Boys who were holding UN peacekeepers and civilians captive.126 103. The Kanu Defence contends that the activities of Kanu as a member of the Commission for the Consolidation of Peace, which included overseeing the reintegration of ex-combatants into the community and the provision of training for them in various trades, indicate his desire to bring peace and stability to post- conflict Sierra Leone.127 The Kanu Defence recalls that it made effforts to obtain salary vouchers from the national authorities to substantiate Kanu’s assertion that since 2000 he has been in receipt of a salary from the military for his work for the Commission, but these vouchers were no longer available.128 104. Finally, the Kanu Defence submits that Kanu’s assistance to the British troops in a fĳire fĳight against the RUF on 8 May 2000, in protest of the RUF’s continued violation of the Lomé Peace Agreement, should mitigate his sentence.129

(b) Deliberations 105. The Trial Chamber fĳinds that nothing in Kanu’s personal circumstances jus- tifĳies any mitigation of his sentence.

124 Prosecution Sentencing Brief, paras. 139–142. 125 Kanu Sentencing Brief, para. 88. 126 Kanu Sentencing Brief, paras. 89–93. 127 Kanu Sentencing Brief, paras. 94–97, 99. 128 Kanu Sentencing Brief, para. 98; See Prosecutor v Brima, Kamara and Kanu, SCSL-04-16-PT-038, “Kanu - Motion to Request an order under Rule 54 with Respect to Exculpatory Evidence,” 19 March 2004. 129 Kanu Sentencing Brief, para. 100. judgments 1817

106. The Trial Chamber considers that Kanu was a professional soldier whose duty it was to protect the people of Sierra Leone. The fact that he instead attacked innocent and unarmed civilians is considered by the Trial Chamber to be an aggravating factor.

3. Aggravating Circumstances (a) Submissions of Parties 107. The Prosecution submits that signifĳicant aggravating circumstances exist in the case of Kanu, including: (i) the vulnerability of many of the civilian victims, especially young children and pregnant women.130 The Prosecution submits that the killing of civilians in a place of worship is a particularly aggravating factor;131 (ii) the heinous nature of the crimes, including the demonstration of amputations;132 and (iii) the fact that Kanu was a senior government offfĳicial prior to the commission of the crimes, and a senior commander at the time of the commission of the crimes.133 In the Prosecution’s view, the failure of Kanu to fulfĳil his duty to prevent or punish “shows a total disregard for the sanctity for human life and dignity.”134 108. The Kanu Defence objects to the Prosecution’s characterisation of Kanu’s superior position as an aggravating factor, arguing that this factor is an element of an offfence committed under Article 6(3) of the Statute and therefore cannot also be considered an aggravating factor.135 The Kanu Defence particularly objects to the Prosecution’s submission that Kanu was a senior member of the AFRC government, referring to the Trial Chamber’s fĳinding that the evidence adduced was insufffĳicient to draw any conclusions regarding the seniority of Kanu in that role.136 (b) Deliberations 109. The Trial Chamber agrees that all of the factors submitted by the Prosecution are aggravating factors. 110. The Trial Chamber fĳinds that Kanu’s failure to prevent or punish his subordinates is an element of individual criminal responsibility under Article 6(3) of the Statute and therefore cannot be considered an aggravating factor.137

130 Prosecution Sentencing Brief, para. 144. 131 Prosecution Sentencing Brief, para. 148. 132 Prosecution Sentencing Brief, para. 146. 133 Prosecution Sentencing Brief, paras. 149–150. 134 Prosecution Sentencing Brief, para. 147. 135 Kanu Sentencing Brief, para. 61. 136 Kanu Sentencing Brief, para. 62. 137 Prosecution Sentencing Brief, para. 125. 1818 part iv

111. However, the Trial Chamber does consider Kanu’s leadership positions in Bombali and Freetown and the Western Area to be an aggravating factor with regards to his Article 6(1) liability for unlawful killings and mutilations. 112. Furthermore, the Trial Chamber is satisfĳied that Kanu’s demonstration of amputations in Freetown and his order to commit killings at Rogbalan Mosque, a place of worship, are aggravating factors with regard to those crimes.

4. Mitigating Circumstances 113. The Prosecution submits that no mitigating circumstances exist in respect of Kanu, as he did not at any time cooperate with the Prosecution or express any remorse and there is no evidence that he acted under duress.138 114. Kanu Defence submits that a number of mitigating circumstances exist in respect of Kanu. (a) Deliberations on Kanu’s Submissions (i) Relatively Low Position 115. The Kanu Defence submits that Kanu had a relatively low position throughout the conflict, even in Freetown being only third in command and consequently he bore less responsibility. The Kanu Defence recalls Article 1(1) of the Statute, which empowers the Special Court to prosecute persons bearing the greatest responsibility for the crimes committed in Sierra Leone.139 The Kanu Defence argues that although the Trial Chamber has found that this is not a jurisdictional requirement, it is a principle which should nevertheless be reflected in sentencing.140 116. The Trial Chamber considers that Kanu’s position as third in command of armed forces was not a lowly one. He was not a foot soldier nor was he subject to duress. The fact that there were two persons superior to him does not lessen his culpability for crimes committed and does not mitigate his sentence. (ii) Flexibility in Sentencing Superior Responsibility 117. The Kanu Defence emphasises that the responsibility of Kanu under Article 6(3) for rape is limited to the failure to prevent or punish the crimes and his sentence must reflect his culpability for this omission, rather than for the crimes themselves.141 118. The Trial Chamber takes into consideration that Kanu was convicted for rape pursuant to Article 6(3) and not Article 6(1). Nonetheless, this distinction does not mitigate in his favour.

138 Prosecution Sentencing Brief, paras. 151–152. 139 Article 1(1) of the Statute. 140 Kanu Sentencing Brief, paras. 105–110. 141 Kanu Sentencing Brief, paras. 111–114. judgments 1819

(iii) Family Background 119. The Kanu Defence contends that Kanu has a girlfriend who wishes to marry him and this family consideration should be taken into account. In addition, the Kanu Defence submits that the “harsh environment of this specifĳic armed conflict as a whole” is a mitigating factor.142 120. The Trial Chamber fĳinds nothing in Kanu’s family background that would mitigate his sentence. (iv) Superior Orders 121. The Kanu Defence recalls the Trial Chamber’s fĳindings that on several occasions Kanu followed or reiterated the orders of Brima, submitting that this lesser culpability is relevant to sentencing.143 122. There is no evidence that Kanu acted under duress. The fact that Kanu voluntarily reiterated criminal orders previously issued by Brima cannot be considered as mitigation.

(v) Collapse of Command Structure 123. The Kanu Defence submits that the increasing chaotic climate prevailing in Freetown after the troops lost State House during the January 1999 invasion afffected Kanu’s culpability in relation to the crimes committed subsequently. The Kanu Defence submits that the difffĳicult circumstances in which a convicted person operates is a mitigating factor, citing the Orić Trial Judgement in support of this proposition.144 124. The Trial Chamber found that despite the deterioration of the situation in Freetown following the loss of State House by the renegade SLA, Kanu maintained efffective control over his troops, he was aware of the crimes committed by his troops, and he took no steps to prevent or punish the troops under his command for the crimes they committed.145 The battlefĳield is always chaotic and therefore this fact cannot be considered as mitigating. (vi) Lack of Formal Military Training 125. The Kanu Defence contends that Kanu joined the military at 25 years of age and only received six months training. The Kanu Defence argues that limited military experience is a mitigating factor.146 126. The Trial Chamber fĳinds that limited or lack of military training is not a mitigating factor.

142 Kanu Sentencing Brief, paras. 115–118. 143 Kanu Sentencing Brief, paras. 119–121. 144 Kanu Sentencing Brief, paras. 122–124; Orić Trial Judgement, paras. 767–768. 145 Judgement, para. 2076. 146 Kanu Sentencing Brief, paras. 125–126. 1820 part iv

(vii) Absence of Knowledge of Criminality 127. In relation to Kanu’s conviction on Count 12 (recruitment and use of child soldiers), the Kanu Defence refers to expert evidence heard during the trial establishing that the use of children under the age of 15 in the Sierra Leonean military in recent decades was widespread and a normal practice and there was no proper training given to servicemen to make them aware of the international prohibition on such conduct. While the Kanu Defence accepts that mistake of law is not a defence, it submits that Kanu’s absence of knowledge of the criminality of the conduct is a substantial mitigating factor.147 128. The Trial Chamber found in the instant case that young children were forcibly kidnapped from their families, often drugged and forcibly trained to commit crimes against civilians. In those circumstances, the Trial Chamber cannot accept that Kanu did not know that that he was committing a crime in recruiting and using these children for military purposes. (viii) Role of Protecting Women 129. The Kanu Defence reiterates its argument, presented throughout the trial, that Kanu’s responsibilities towards civilians in the jungle entailed their protection and this should be considered a mitigating factor.148 130. This submission is contrary to the Trial Chamber fĳindings and is without merit. (ix) Lengthy Proceedings 131. The Kanu Defence submits that the Trial Chamber’s delay until the Judgement in deciding that joint criminal enterprise was not properly pleaded made the proceedings against Kanu unnecessarily long, as it resulted in additional evidence and occupied a substantial amount of time in preparation and the presentation of the parties’ cases. The Kanu Defence recalls that it raised objections concerning the defĳiciency of the Indictment in that respect on several occasions from pre-trial proceedings until the submission of Final Briefs; and argues that disproportionately lengthy proceedings are a recognised mitigating factor in the jurisprudence of the ICTY and the European Court of Human Rights.149 132. The Trial Chamber holds that the appropriate time to consider its fĳinding on joint criminal enterprise at the end of the trial when all the evidence and fĳinal submissions had been considered. The Trial Chamber therefore fĳinds the Defence argument without merit.

147 Kanu Sentencing Brief, paras. 127–137. 148 Kanu Sentencing Brief, paras. 138–141. 149 Kanu Sentencing Brief, paras. 142–149. judgments 1821

(x) Good Behaviour in Army, No Previous Convictions and Character Evidence 133. The Kanu Defence submits that Kanu’s “loyal and faithful” service to the Army, described in his discharge booklet (exhibit D-11), and absence of prior convictions are mitigating factors.150 In addition, the Kanu Defence submits that Kanu was a person of good character who assisted vulnerable people in the jungle, referring to evidence to this efffect contained in an unsworn, signed witness statement annexed to the Sentencing Brief.151 134. The Trial Chamber does not consider Kanu’s service in the Army without incident to be a mitigating factor.152 This was merely his duty. (xi) Breach of Conakry Accord by ECOMOG 135. The Kanu Defence recalls evidence at trial to the efffect that the overthrow of the AFRC Government and the reinstatement of the Kabbah Government in Freetown in February 1998 was in breach of the Conakry Accord signed between ECOWAS and Johnny Paul Koroma, which provided for a peaceful handover of power to Kabbah in May 1998. The Kanu Defence submits that this breach put Kanu, as a member of the AFRC Government, “in a dilemma” which mitigates his role in subsequent events.153 136. The Trial Chamber fĳinds no merit whatsoever in the Defence submissions with regard to the alleged breach of the Conakry Accord. (xii) Amnesty Provided 137. The Kanu Defence submits that Kanu’s trial by the Special Court has “circumvented” the amnesty granted to him as an ex-combatant and this factor should be taken into account as mitigation.154 138. The Trial Chamber notes that Article 10 of the Statute states that “an amnesty granted […] shall not be a bar to prosecution.” The Trial Chamber recalls that the Appeals Chamber has addressed legality of amnesties for international crimes and found that the grant of such amnesties violates erga omnes obligations under international law.155 The Trial Chamber therefore fĳinds no merit in the Defence submission.

150 Kanu Sentencing Brief, paras. 150–153. 151 Kanu Sentencing Brief, paras. 160–163. 152 Exhibit D-14. 153 Kanu Sentencing Brief, paras. 154–157. 154 Kanu Sentencing Brief, paras. 158–159. 155 Prosecutor v. Kallon, SCSL-2004-15-AR72(E); Prosecutor v. Kanu, SCSL-2004-16-AR72(E), Decision on Challenge to Jurisdiction: Lomé Accord Amnesty, 15 March 2004; Prosecutor v. Kondewa, Decision on Lack of Jurisdiction/Abuse of Process; Amnesty Provided by the Lomé Accord, Case No. SCSL-2004, 14 AR72 (E), 25 May 2004. 1822 part iv

5. Remorse 139. The Trial Chamber fĳinds that the statement made by Kanu at the sentencing hearing failed to express any remorse whatsoever for his crimes.156

VI. Disposition

FOR THE FOREGOING REASONS, THE TRIAL CHAMBER UNANIMOUSLY SENTENCES Alex Tamba Brima to a SINGLE TERM OF IMPRISONMENT OF FIFTY YEARS for all the Counts on which he has been found GUILTY. Credit shall be given to him for any period during which he was detained in custody pending this trial; SENTENCES Ibrahim Bazzy Kamara to SINGLE TERM OF IMPRISONMENT OF FORTY FIVE YEARS for all the Counts on which he has been found GUILTY. Credit shall be given to him for any period during which he was detained in custody pending this trial; SENTENCES Santigie Borbor Kanu to SINGLE TERM OF IMPRISONMENT OF FIFTY YEARS for all the Counts on which he has been found GUILTY. Credit shall be given to him for any period during which he was detained in custody pending this trial. Done in Freetown, Sierra Leone, this 19th day of July 2007. Justice Richard Lussick Justice Julia Sebutinde Justice Teresa Doherty Presiding Judge

156 Oral Submissions, Transcript 17 July 2007, pp. 88–91. IN THE APPEALS CHAMBER

Before: Justice George Gelaga King, Presiding Judge Justice Emmanuel Ayoola Justice Renate Winter Justice Raja Fernando Justice Jon M. Kamanda Registrar: Herman von Hebel Date: 22 February 2008 PROSECUTOR Against ALEX TAMBA BRIMA BRIMA BAZZY KAMARA SANTIGIE BORBOR KANU (Case No.SCSL-2004-16-A)

JUDGMENT

Office of the Prosecutor: Defence Counsel for Alex Tamba Brima: Dr. Christopher Staker Kojo Graham Mr. Karim Agha Mr. Chile Eboe-Osuji Ms. Anne Althaus Defence Counsel for Brima Bazzy Kamara: Andrew Daniels Defence Counsel for Santigie Borbor Kanu: Ajibola E. Manly-Spain Silas Chekera 1824 part iv

CONTENTS

I. Introduction ...... 1828 A. The Special Court for Sierra Leone ...... 1828 B. The Armed Conflict in Sierra Leone ...... 1829 C. The Trial Proceedings ...... 1831 1. The Indictment ...... 1831 2. The Accused ...... 1833 3. Judgment ...... 1833 4. Verdict ...... 1834 5. Sentence ...... 1835

II. The Appeals ...... 1835 A. The Prosecution’s Grounds of Appeal ...... 1835 B. Brima’s Grounds of Appeal ...... 1835 C. Kamara’s Grounds of Appeal ...... 1836 D. Kanu’s Grounds of Appeal ...... 1836 E. Common Defects in the Brima and Kamara Grounds of Appeal ...... 1837

III. Common Grounds of Appeal Relating to the Indictment ...... 1837 A. Issues Arising from the Common Grounds of Appeal ...... 1837 1. Applicable Principles ...... 1838 (a) Specifĳicity ...... 1838 (b) Exception to Specifĳicity ...... 1838 2. Challenges to an Indictment on Appeal ...... 1838 B. Prosecution’s Second Ground of Appeal: Locations Not Pleaded in the Indictment ...... 1840 1. Trial Chamber’s Findings ...... 1840 2. Submissions of the Parties ...... 1841 (a) Prosecution’s Submissions ...... 1841 (b) Response of the Accused ...... 1843 3. Discussion: Reversal of a Previous Interlocutory Decision ...... 1844 C. Prosecution’s Fourth Ground of Appeal and Kanu’s Tenth Ground of Appeal: Joint Criminal Enterprise ...... 1844 1. Trial Chamber’s Findings ...... 1844 2. Submission of the Parties ...... 1845 3. Discussion ...... 1847 4. Disposition ...... 1852 D. Prosecution’s Sixth Ground of Appeal: The Duplicity of Count 7 ...... 1852 1. Discussion ...... 1856 E. Kanu’s Second Ground of Appeal: Waiver of Indictment Defects ...... 1858 1. Discussion ...... 1860 judgments 1825

IV. Common Issues of Fact: Evaluation of Evidence and Witness Credibility ...... 1860 A. Brima’s Ninth, Tenth and Eleventh Grounds of Appeal: Evaluation of Evidence ...... 1860 1. Brima’s Ninth Ground of Appeal...... 1860 (a) Submissions of the Parties ...... 1860 (b) Discussion ...... 1861 2. Brima’s Tenth and Eleventh Grounds of Appeal: Failure to Consider the Rivalry Between Brima and Witness TF1-334 ...... 1862 B. Kamara’s Eighth Ground of Appeal: Credibility of Prosecution Witnesses ...... 1862 1. Submissions of the Parties ...... 1862 2. Discussion ...... 1863 (a) The Trial Chamber’s Approach to Accomplice Evidence ...... 1863 (b) Evaluation of the Evidence of Prosecution Witnesses ...... 1865 C. Kanu’s Third Ground of Appeal: Evaluation of Defence Evidence ...... 1868 1. Submissions of the Parties ...... 1868 2. Discussion ...... 1868 D. Kanu’s Fourth Ground of Appeal: Evidence of Accomplice Witnesses ...... 1871 1. Submissions of the Parties ...... 1871 2. Discussion ...... 1872

V. The Prosecution’s Appeal ...... 1872 A. Prosecution’s First and Third Grounds of Appeal: The “Bombali- Freetown Campaign” and Kamara’s Alleged Responsibility under Article 6(1) for Crimes Committed in Port Loko District ...... 1872 B. Prosecution’s Fifth Ground of Appeal: The “Enslavement Crimes” as Acts of Terror and Collective Punishment ...... 1874 1. Trial Chamber Findings ...... 1874 2. Submissions of the Parties ...... 1874 3. Discussion ...... 1874 C. Prosecution’s Seventh Ground of Appeal: Forced Marriage ...... 1875 1. The Trial Chamber’s Findings and Submissions of the Parties ...... 1875 2. Discussion ...... 1877 (a) The Nature of “Forced Marriage” in the Sierra Leone Conflict and its Distinction from Sexual Slavery ...... 1879 (b) Does Forced Marriage Satisfy the Elements of “Other Inhumane Acts”? ...... 1883 D. Prosecution’s Eighth Ground of Appeal: Cumulative Convictions under Counts Ten and Eleven ...... 1885 E. Prosecution’s Ninth Ground of Appeal: Cumulative Convictions ...... 1887 1826 part iv

VI. Brima’s Appeal ...... 1891 A. Brima’s First Ground of Appeal: Equality of Arms ...... 1891 1. Submissions of the Parties ...... 1891 2. Discussion ...... 1891 B. Brima’s Fourth and Sixth Grounds of Appeal: Superior Responsibility for Crimes Committed in Bombali, Freetown and Other Parts of the Western Area ...... 1992 C. Brima’s Fifth Ground of Appeal: Article 6(1) Responsibility for Murder and Extermination in Bombali District ...... 1993

VII. Kamara’s Appeal ...... 1993 A. Kamara’s First Ground of Appeal: Ordering Murder of Five Civilians in Karina ...... 1993 1. Submissions of the Parties ...... 1994 2. Discussion ...... 1994 B. Kamara’s Second, Third and Fourth Grounds of Appeal: Planning Crimes in Bombali District and Other Parts of the Western Area ...... 1995 C. Kamara’s Fifth and Sixth Grounds of Appeal: Aiding and Abetting Crimes in Freetown and the Western Area ...... 1995 1. Errors of Law...... 1995 2. Errors in the Evaluation of Evidence ...... 1997 D. Kamara’s Seventh Ground of Appeal: Superior Responsibility ...... 1997 1. Trial Chamber fĳindings ...... 1998 2. Submissions of the Parties ...... 1999 3. Discussion ...... 1900 (a) Kamara’s Responsibility for Crimes Committed by Savage ...... 1900 (b) Kamara’s Efffective Control in Kono District and the Testimony of Witness TF1-334 on AFRC Muster Parades in Kono District...... 1901 (c) Kamara’s Efffective Control in Bombali District ...... 1903 (d) Conflicting Testimony of Witness TF1-334 and Witness TF1-167 ...... 1903 (e) Kamara’s Responsibility as a Superior for Crimes in Freetown ...... 1904

VIII. Kanu’s Appeal ...... 1905 A. Kanu’s First Ground of Appeal: Those Bearing the Greatest Responsibility ...... 1905 1. Submissions of the Parties ...... 1905 2. Discussion ...... 1907 B. Kanu’s Fifth and Sixth Grounds of Appeal: Efffective Control for Superior Responsibility ...... 1909 judgments 1827

1. Submissions of the Parties ...... 1909 2. Discussion ...... 1910 C. Kanu’s Seventh Ground of Appeal: Mens Rea for Crimes Related to Child Soldiers ...... 1910 1. Introduction ...... 1910 D. Kanu’s Ninth Ground of Appeal: Findings of Responsibility Pursuant to Article 6(1) of the Statute ...... 1911 1. The Parties’ Submissions and the Findings of the Trial Chamber ...... 1911 2. Discussion ...... 1912

IX. Grounds of Appeal Relating to Sentence ...... 1914 A. Introduction ...... 1914 B. Standard of Review on Appeals Relating to Sentence ...... 1915 C. Excessive Sentences: Ground Twelve of Brima’s Appeal and Ground Ten of Kamara’s Appeal ...... 1915 D. Mitigating Factors: Ground Nine of Kamara’s Appeal and Grounds Eleven, Fifteen, Sixteen, Seventeen and Eighteen of Kanu’s Appeal ...... 1916 E. Double-Counting, Gravity of the Offfence and Aggravating Factors: Ground Twelve of Brima’s Appeal ...... 1917 F. Kanu’s Eighth Ground of Appeal: Cumulative Convictions and Sentence ...... 1917 1. Submissions of the Parties ...... 1917 2. Discussion ...... 1918 G. Sentence: General Conclusion ...... 1919

X. Disposition ...... 1920

XI. Annex A: Procedural History ...... 1922

XII. Annex B: Glossary ...... 1925 A. Cases Cited ...... 1925 1. Special Court for Sierra Leone ...... 1925 2. The International Criminal Tribunal for the former Yugoslavia ...... 1926 3. The International Criminal Tribunal for Rwanda ...... 1929 4. Other Court Decisions ...... 1931 B. Special Court Instruments ...... 1931 C. International Legal Instruments ...... 1932 D. Secondary Sources ...... 1932 1828 part iv

THE APPEALS CHAMBER of the Special Court for Sierra Leone (“Appeals Chamber”), comprised of Hon. Justice George Gelaga King, Presiding, Hon. Justice Emmanuel Ayoola, Hon. Justice Renate Winter, Hon. Justice A. Raja N. Fernando, and Hon. Justice Jon Moadeh Kamanda, SEISED of appeals from the Judgment rendered by Trial Chamber II (“Trial Chamber”) on 20 June 2007, in the case of Prosecutor v. Brima, Kamara, and Kanu, Case No. SCSL-04-16-T (“AFRC Trial Judgment” or “Trial Judgment”);1 HAVING CONSIDERED the written and oral submissions of both Parties and the Record on Appeal; HEREBY RENDERS its Judgment.

I. Introduction

A. The Special Court for Sierra Leone 1. In 2000, following a request from the Government of Sierra Leone, the United Nations Security Council authorised the United Nations Secretary-General to negotiate an agreement with the Government of Sierra Leone to establish a Special Court to prosecute persons responsible for the commission of crimes against humanity, war crimes, other serious violations of international humanitarian law, and violations of Sierra Leonean law during the armed conflict in Sierra Leone.2 2. As a result, the Special Court for Sierra Leone (“Special Court”) was established in 2002 by an agreement between the United Nations and the Government of Sierra Leone (“Special Court Agreement”).3 The Special Court’s mandate is to try those who bear the greatest responsibility for serious violations of international humanitarian law and Sierra Leonean law committed in the territory of Sierra Leone since 30 November 1996.4 3. In particular, the Statute of the Special Court (“Statute”) empowers the Special Court to prosecute persons who committed crimes against humanity, serious violations of Article 3 Common to the 1949 Geneva Conventions for the Protection of

1 Prosecutor v. Brima, Kamara and Kanu, SCSL-2004-16-T, Special Court for Sierra Leone, Judgment, Trial Chamber II, 20 June 2007 [AFRC Trial Judgment]. 2 SC Res. 1315, UN SCOR, 4186th Mtg., UN Doc. S/RES/1315, 14 August 2000, paras. 1–2. 3 Agreement between the United Nations and the Government of Sierra Leone on the Establishment of a Special Court for Sierra Leone, United Nations and Sierra Leone, 16 January 2002, 2178 U.N.T.S. 138 [Special Court Agreement]. The Agreement entered into force on 12 April 2002. 4 See Special Court Agreement, Art. 1; Statute of the Special Court for Sierra Leone, annexed to the Agreement Between the United Nations and the Government of Sierra Leone on the Establishment of a Special Court for Sierra Leone, United Nations and Sierra Leone, 16 January 2002, 2178 U.N.T.S. 138 [Statute or Special Court Statute], Art. 1.1. judgments 1829

War Victims and of Additional Protocol II, other serious violations of international humanitarian law and specifĳied crimes under Sierra Leonean law.5

B. The Armed Conflict in Sierra Leone 4. The armed conflict in Sierra Leone started in March 1991 with an attack initiated in Kailahun District by an organised armed opposition group known as the Revolutionary United Front (“RUF”)6 under the leadership of Foday Sankoh, a former soldier of the Sierra Leone Army (“SLA”). The RUF’s aim was to overthrow the Government of Sierra Leone.7 By the end of 1991, the RUF held consolidated positions in a number of Districts within Sierra Leone and in the years that followed it took control of more Districts.8 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.9 The RUF’s success triggered the emergence of local pro-Government militias. These militias primarily consisted of traditional hunters and were known as the Civil Defence Forces (“CDF”).10 In the period following March 1995, the SLA was able to dislodge the RUF from most of its positions.11 5. In March 1996, elections were held in Sierra Leone and Ahmad Tejan Kabbah, the head of the Sierra Leone People’s Party, was pronounced the winner.12 About the same time, the Government’s support of the CDF resulted in the development of tension between the SLA and the Government.13 As a consequence, in September 1996, a retired SLA offfĳicer, Johnny Paul Koroma, attempted to seize power from the elected Government of President Ahmad Tejan Kabbah in a coup d’état.14 This attempt failed and Johnny Paul Koroma was imprisoned.15 6. In the months that followed, negotiations between the Government and the RUF resulted in the Abidjan Peace Agreement, signed on 30 November 1996, which called for the cessation of hostilities on both sides.16 In return for peace with the RUF, the Government agreed to grant amnesty to RUF members for crimes committed before the signing of the Peace Agreement.17 The Parties further

5 Special Court Statute, Arts. 2–5. 6 AFRC Trial Judgment, paras. 156–157. 7 Ibid. at para. 156. 8 Ibid. at paras. 157, 159. 9 Ibid. at para. 160. 10 Ibid. at para. 159. 11 Ibid. at para. 160. 12 Ibid. at para. 161. 13 Ibid. at para. 161. 14 Ibid. at para. 161. 15 Ibid. at para. 161. 16 Ibid. at para. 162. 17 Ibid. at para. 162. 1830 part iv committed themselves to the disarmament, demobilisation and reintegration of RUF combatants.18 In early 1997, the peace process broke down when hostilities erupted between the SLA/CDF and the RUF.19 7. On 25 May 1997, members of the SLA seized power from the elected Government of President Kabbah in a coup d’état, planned and executed by 17 junior rank soldiers. Johnny Paul Koroma was released from prison by the coup plotters and appointed Chairman of a new government, which was called the Armed Forces Revolutionary Council (“AFRC”).20 The AFRC suspended the 1991 Constitution of Sierra Leone, dissolved the elected Government and banned political parties.21 Koroma then invited the RUF to join the AFRC in government.22 8. The AFRC was not immediately able to exercise control over the entire territory of Sierra Leone.23 As a result, the armed forces of the AFRC, comprising both AFRC soldiers and RUF fĳighters undertook military operations to gain control over Bo and Kenema Districts which were controlled by the CDF.24 This resulted in Bo Town being captured from the CDF in June 1997.25 From that date, the AFRC controlled most parts of Freetown and other parts of the Western Area, as well as the Districts of Bo, Kenema, Kono, Bombali and Kailahun.26 The AFRC however, remained under constant threat from the CDF and the forces of the Economic Community of West African States Monitoring Group (“ECOMOG”) which were in control of the International Airport at Lungi in Port Loko District.27 9. On 23 October 1997, political, military and economic pressure on the AFRC forced it to accept the Six-Month Peace Plan known as the Conakry Accord bro- kered by the Economic Community of West African States (“ECOWAS”).28 The Conakry Accord called for the immediate cessation of hostilities throughout Sierra Leone and the restoration of constitutional government by 22 May 1998.29 However, soon after the Accord was signed, hostilities resumed and AFRC forces were dislodged from their positions.30 10. The Government of ousted President Kabbah was reinstated in March 1998.31

18 Ibid. at para. 162. 19 Ibid. at para. 163. 20 Ibid. at para. 164. 21 Ibid. at para. 165. 22 Ibid. at para. 164. 23 Ibid. at para. 166. 24 Ibid. at para. 166. 25 Ibid. at para. 166. 26 Ibid. at para. 167. 27 Ibid. at paras. 167–168. 28 Ibid. at para. 174. 29 Ibid. at para. 174. 30 Ibid. at para. 175. 31 Ibid. at para. 175. judgments 1831

11. After the fall of the AFRC, widespread atrocities continued to be committed throughout Sierra Leone.32 In January 1999, President Kabbah was under pressure to enter into a peace agreement with the warring factions.33 12. On 7 July 1999, the Government of President Kabbah and the RUF signed a peace agreement known as the Lomé Accord, which resulted in a power sharing arrangement between them.34 Hostilities ceased in January 2002.35

C. The Trial Proceedings 1. The Indictment 13. The original Indictments against Alex Tamba Brima (“Brima”), Brima Bazzy Kamara (“Kamara”) and Santigie Borbor Kanu (“Kanu”) were approved on 7 March 2003,36 28 May 2003,37 and 16 September 2003,38 respectively. These Indictments were later consolidated, amended and further amended.39 14. The Further Amended Consolidated Indictment (“Indictment”) comprised a total of 14 Counts. These Counts charged Brima, Kamara and Kanu (the “Accused”) with: (i) Seven Counts of crimes against humanity, namely: extermination, murder, rape, sexual slavery and any other form of sexual violence, “Other Inhumane Acts” and enslavement (Counts 3, 4, 6, 7, 8, 11, and 13, respectively); (ii) 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, 9, 10 and 14, respectively); and

32 Ibid. at paras. 177–209. 33 Ibid. at para. 209. 34 Ibid. at para. 209. 35 Ibid. at para. 209. 36 Prosecutor v. Brima, SCSL-2003-06-I, Indictment, 7 March 2003; Prosecutor v. Brima, SCSL-2003- 06-I, Decision Approving the Indictment and Order for Non-Disclosure, 7 March 2003. 37 Prosecutor v. Kamara, SCSL-2003-10-I, Indictment, 26 May 2003; Prosecutor v. Kamara, SCSL- 2003-10-I, Decision Approving the Indictment, the Warrant of Arrest, and Order for Non-Disclosure, 28 May 2003. 38 Prosecutor v. Kanu, SCSL-2003-13-I, Indictment, 15 September 2003; Prosecutor v. Kanu, SCSL- 2003-13-I, Decision Approving the Indictment, the Warrant of Arrest and Order for the Transfer and Detention and Order for Non-Public Disclosure, 16 September 2003. 39 Prosecutor v. Brima, Kamara and Kanu, SCSL-2004-16-PT, Further Amended Consolidated Indictment, 18 February 2005 [Indictment]. 1832 part iv

(iii) A single Count of “other serious violation of international humanitarian law” (Count 12) consisting of conscripting or enlisting children under the age of 15 years into armed forces or groups, or using them to participate actively in hostilities. 15. The Indictment stated that the Accused were individually criminally responsible, pursuant to Articles 6(1) and 6(3) of the Statute, for the crimes stated above and further alleged that the Accused participated in a joint criminal enterprise (“JCE”) with the RUF, the objective of which was to take any action necessary to gain and exercise political power and control over the territory of Sierra Leone and in particular the diamond mining areas.40 16. It is pertinent to note, as observed by the Trial Chamber, that at various stages of the proceedings the Accused raised objections to the Indictment on the ground of vagueness.41 Brima submitted that the Indictment failed to plead with precision the crimes it was alleged he committed in person.42 Kamara submitted that there was a lack of specifĳicity in pleading individual criminal responsibility pursuant to Article 6(1) of the Statute.43 Kamara further contended that the form of pleading joint criminal enterprise in the Indictment was defective in that the common purpose “to take any action to gain and exercise political control over the territory of Sierra Leone” did not amount to a crime within the Statute and was too broad.44 Finally, Brima and Kamara contended that the charging of sexual slavery and other forms of sexual violence as prohibited under Article 2.g of the Statute, offfended the rule against duplicity.45

40 Indictment, para. 33. 41 See Prosecutor v. Brima, Kamara and Kanu, SCSL-2004-16-PT, Defence Motion for Defects in the Form of the Indictment, 1 March 2005; Prosecutor v. Kamara, SCSL-2003-10-PT, Brief in Support of Preliminary Motion on Defect in the Form of the Indictment, 23 December 2003; Prosecutor v. Kanu, SCSL-2003-13-PT, Motion on Defects in Form of the Indictment and for Particularization of the Indictment, 16 October 2003; Prosecutor v. Brima, Kamara and Kanu, SCSL-2004-16-PT, Defence Pre- Trial Brief for Tamba Alex Brima, 17 February 2005, paras. 22–30; Prosecutor v. Brima, Kamara and Kanu, SCSL-2004-16-PT, Kamara – Defence Pre-Trial Brief, 21 February 2005, paras. 22–23; Prosecutor v. Brima, Kamara and Kanu, SCSL-2004-16-PT, Kanu – Defence Pre-Trial Brief and Notifĳication of Defences Pursuant to Rule 67(A)(ii)(a) and (b), 22 March 2004, paras. 15–19; Prosecutor v. Brima, Kamara and Kanu, SCSL-2004-16-T, Public Version – Brima Defence Final Trial Brief, 11 December 2006, paras. 126–156; Prosecutor v. Brima, Kamara and Kanu, SCSL-2004-16-T, Public Kamara Final Trial Brief, 11 December 2006, paras. 89–103. 42 Prosecutor v. Brima, Kamara and Kanu, SCSL-2004-16-PT, Defence Pre-Trial Brief for Tamba Alex Brima, 17 February 2005, para. 23. 43 Prosecutor v. Kamara, SCSL-2003-10-PT, Brief in Support of Preliminary Motion on Defects in the Form of the Indictment, 23 December 2003, para. 8. 44 Ibid., at para. 9. 45 Prosecutor v. Brima, Kamara and Kanu, SCSL-2004-16-T, Public Kamara Final Trial Brief, 11 December 2006, paras. 94–96; Prosecutor v. Brima, Kamara and Kanu, SCSL-2004-16-T, Public Version – Brima Defence Final Trial Brief, 11 December 2006, para. 141. judgments 1833

2. The Accused 17. Consequent upon the May 1997 coup d’état, the Accused became members of the Supreme Council of the AFRC, the highest decision-making body of the military junta.46 In that capacity they attended co-ordination meetings between leaders of the AFRC and the RUF.47 In addition, Brima and Kamara were appointed as Public Liaison Offfĳicers (“PLO”) 2 and 3, respectively.48 Under the AFRC regime, PLOs had supervisory responsibility over designated government ministries.49 The Decree establishing the offfĳice of PLO provided that they 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].”50 As PLO 2, Brima supervised the Ministry of Works and Labour, the Department of Customs and Excise, as well as two Government parastatals, Sierratel and SALPOST.51 Similarly, as PLO 3, Kamara supervised the Ministries of Agriculture, Forestry, Fisheries, Energy and Power, the Income Tax Department, and Queen Elizabeth Quay.52 18. In March 1998, shortly after the AFRC junta was dislodged by ECOMOG forces, Johnny Paul Koroma separated from his soldiers on the pretext that he was travelling abroad to organise logistics for the troops.53 The leadership of the AFRC then fell to a senior member of the SLA known as SAJ Musa. In December 1998 SAJ Musa was killed during an attack on an ECOMOG weapons depot in Benguema.54 After SAJ Musa’a death, Brima took over as the overall commander of the AFRC force with Kamara as Deputy Commander and Kanu as Chief of Stafff. From then on they remained the three most senior commanders of the AFRC until the cessation of hostilities in January 2002.55

3. Judgment 19. The trial of the Accused opened before Trial Chamber II on 7 March 2005, closing arguments were heard on 7 and 8 December 2006, and on 20 June 2007, the Trial Chamber rendered its Judgment. 20. The Trial Chamber found that there was an armed conflict in Sierra Leone between March 1991 and January 2002, and that the crimes charged related to the

46 AFRC Trial Judgment, paras. 285, 332, 434, 509. 47 Ibid., at paras. 318, 437, 511. 48 Ibid., at paras. 320, 438. 49 Ibid., at para. 321. 50 Ibid., at para. 321. 51 Ibid., at para. 321. 52 Ibid., at para. 436. 53 Ibid., at para. 184. 54 Ibid., at para. 201. 55 Ibid., at paras. 420, 474, 531–532, 611. 1834 part iv armed conflict.56 It found that there was a systematic or widespread attack by the AFRC/RUF forces directed against the civilian population of Sierra Leone and that each incident described in the Indictment formed part of a widespread and systematic attack within the meaning of Article 2 of the Statute.57 According to its Judgment, “operations” conducted by AFRC/RUF forces targeted civilians and the Accused knew that their conduct formed part of a widespread and systematic attack.58 21. The Trial Chamber evaluated the individual criminal responsibility of each of the Accused under Article 6(1) and 6(3) of the Statute. The Trial Chamber spe- cifĳically held that “with respect to Joint Criminal Enterprise as a mode of criminal liability, the Indictment [had] been defectively pleaded” and that it would not consider JCE as a mode of criminal responsibility.59

4. Verdict 22. The Accused were found guilty and convicted of six Counts of violations of Article 3 Common to the 1949 Geneva Conventions for the Protection of War Victims and of Additional Protocol II, four Counts of crimes against humanity pursuant to Articles 2.a, 2.b, 2.c and 2.g of the Statute, and one Count of other serious violations of international humanitarian law pursuant to Article 4.c of the Statute.60 23. With respect to the crime of rape as a crime against humanity, charged under Count 6 of the Indictment, Brima, Kamara, and Kanu were convicted on the basis of superior responsibility under Article 6(3) of the Statute.61 24. The Appellants Brima and Kamara were acquitted of the crime of “Other Inhumane Acts” as a crime against humanity, charged under Count 11 of the Indictment, and no conviction was entered against Kanu.62 25. The Trial Chamber did not enter convictions under Counts 7 and 8 of the Indictment.63 Count 7 charged the offfence of sexual slavery and any other form of sexual violence. A majority of the Trial Chamber held that the charge violated the rule against duplicity and dismissed it for that reason.64 Count 8 was dismissed on

56 Ibid., at paras. 249, 254. 57 Ibid., at para. 224. 58 Ibid., at paras. 238–239. 59 Ibid., at para. 85. 60 Ibid., at paras. 2113, 2114, 2117, 2118, 2121, 2122; Corrigendum to AFRC Trial Judgment. 61 AFRC Trial Judgment, paras. 2114, 2118, 2122; Corrigendum to AFRC Trial Judgment. 62 AFRC Trial Judgment, paras. 2113–2123. 63 Ibid., at paras. 2116, 2120, 2123. 64 Ibid., at paras. 93–95. judgments 1835 the ground of redundancy based on the Trial Chamber’s fĳinding that the evidence led in support of that Count did not establish any offfence distinct from sexual slavery.65

5. Sentence 26. For all the Counts of which they were found guilty, Alex Tamba Brima and Santigie Borbor Kanu were each sentenced to a single term of imprisonment of fĳifty (50) years, and Brima Bazzy Kamara to a single term of imprisonment of forty- fĳive (45) years. The Trial Chamber ordered that each be given credit for any period during which they were detained in custody pending trial.66

II. The Appeals

A. The Prosecution’s Grounds of Appeal 27. The Prosecution fĳiled nine Grounds of Appeal.67 Grounds One to Three raise the question of whether the Accused should have been found criminally responsible for additional crimes in Bombali District, Freetown and other parts of the Western Area, and Port Loko District and whether the Trial Chamber should have made factual fĳindings on crimes in certain locations. In Ground Four the Prosecution complains that the Trial Chamber failed to consider JCE liability. The substance of Ground Five of the Prosecution’s Appeal is that the Trial Chamber erred in not including evidence of the three enslavement crimes68 as a basis of criminal responsibility for offfences charged in Counts One and Two of the Indictment. Grounds Six, Seven and Eight raise questions of duplicity and redundancy. Finally, Ground Nine concerns the Trial Chamber’s approach to cumulative convictions.

B. Brima’s Grounds of Appeal 28. The Appellant Brima fĳiled twelve Grounds of Appeal of which four were abandoned.69 Ground One raises the issue of equality of arms, complaining that the Trial Chamber failed “to consider the fact that the inequality of arms between

65 Ibid., at para. 714. 66 AFRC Sentencing Judgment, p. 36. 67 Prosecutor v. Brima, Kamara and Kanu, SCSL-2004-16-A, Appeal Brief of the Prosecution, 13 September 2007 [Prosecution Appeal Brief]. 68 Recruitment of child soldiers, abductions and forced labour, and sexual slavery. 69 The Appeals Chamber declines to consider Brima’s Tenth and Eleventh Grounds as his Appeal Brief offfers no supporting arguments and fails to identify any issue of appeal. 1836 part iv the Prosecution and Defence denied or substantially impaired the right of Brima to a fair trial resulting in a miscarriage of justice.”70 29. Six of Brima’s Grounds of Appeal state that the Trial Chamber erred in law and in fact in its evaluation of the evidence by fĳinding that he was individually criminally responsible under Articles 6(1) and 6(3) of the Statute for the crimes stated in the Indictment.71 30. In his Twelfth Ground of Appeal he complains that the Trial Chamber erred in law and fact by failing to consider a number of mitigating factors, that the imposition of a global sentence of fĳifty (50) years was excessive and disproportionate, and that the Trial Chamber impermissibly double-counted aggravating factors.72

C. Kamara’s Grounds of Appeal 31. Kamara fĳiled thirteen Grounds of Appeal of which fĳive were against sentence. In Grounds One to Six he contends that the Trial Chamber erred in law and fact by misapplying the modes of liability for ordering, planning, and aiding and abetting.73 In Ground Seven he complains that the Trial Chamber misapplied the standard for superior responsibility.74 In Ground Eight he contends that the Trial Chamber erred in its evaluation of the credibility of witnesses.75 In Grounds Nine to Thirteen, Kamara states that the Trial Chamber failed to consider mitigating circumstances,76 misunderstood underlying sentencing principles77 and consequently imposed an excessive sentence.78

D. Kanu’s Grounds of Appeal 32. Kanu fĳiled Nineteen Grounds of Appeal of which eight relate to sentencing. The issues raised by the Grounds of Appeal against conviction touch on: (i) the greatest responsibility requirement; (ii) the indictment, particularly in regard to pleading principles when the mode of committing is alleged and waiver of defect in indictments by reason of failure to object to evidence of material facts not pleaded;

70 Prosecutor v. Brima, Kamara and Kanu, SCSL-2004-16-A, Brima Appeal Brief, 13 September 2007, para. 71 [Brima Appeal Brief]. 71 Ibid., at paras. 84, 120, 153, 168, 179. 72 Ibid., at paras. 180–196. 73 Prosecutor v. Brima, Kamara and Kanu, SCSL-2004-16-A, Kamara Appeal Brief, 13 September 2007, para. 77–190 [Kamara Appeal Brief]. 74 Ibid., at para. 191. 75 Ibid., at para. 223. 76 Ibid., at para. 237. 77 Ibid., at paras. 252, 257, 260. 78 Ibid., at para. 243. judgments 1837

(iii) evidential issues, particularly in regard to the evaluation of evidence of witnesses and treatment of accomplice evidence; (iv) superior liability under Article 6(3) of the Statute, particularly if the evidence showed “shared concurrent responsibility with other superiors”; (v) in regard to crimes of conscription of child soldiers, whether the absence of criminal knowledge on the part of an accused vitiated the requisite mens rea; (vi) cumulative convictions, particularly, whether it is an error in law to convict an accused cumulatively under Article 3(b) or 3(d) as well as the underlying crimes charged in article 3(a) of the crimes of murder and mutilation and Article 3(e) of the crime of outrages upon personal dignity; and (vii) the consequence of the fĳinding by the Trial Chamber that JCE as a mode of criminal liability had been defectively pleaded on the validity of the entire indictment. 33. The Grounds of Appeal against sentence are rather wide-ranging, raising principles of sentencing, the efffect of amnesty as a mitigating factor and whether it is not a mitigating factor that an accused is not a person who bears the greatest responsibility.

E. Common Defects in the Brima and Kamara Grounds of Appeal 34. It is expedient to note that many of the Grounds of Appeal raised by Brima and Kamara share a common defĳiciency. Although each of them alleges error in law or in fact, few of them give particulars of such error. This failure makes it imperative for the Appeals Chamber to repeat what should by now be regarded as commonplace: that in order for the Appeals Chamber to assess a party’s arguments on appeal, the party must set out its Grounds of Appeal clearly, logically and exhaustively.

III. Common Grounds of Appeal Relating to the Indictment

A. Issues Arising from the Common Grounds of Appeal 35. Grounds Two, Four and Six of the Prosecution’s Appeal, as well as Grounds Two and Ten of Kanu’s Appeal all raise issues relevant to the proper pleading of the Indictment. Whilst the Grounds of Appeal fĳiled by the two Parties advance diffferent arguments, they raise similar issues with respect to the general pleading principles applicable to indictments at international criminal tribunals. 36. Furthermore, the Parties’ submissions in support of these Grounds of Appeal state that the Trial Chamber committed a procedural error in reconsidering earlier pre-trial or interlocutory decisions without giving notice to the Parties or without giving them an opportunity to be heard on the correctness of the previous decision(s). 1838 part iv

1. Applicable Principles Specifĳicity 37. In order to guarantee a fair trial the Prosecution is obliged to plead material facts with a sufffĳicient degree of specifĳicity.79 The question whether material facts are pleaded with the required degree of specifĳicity depends on the context of the particular case.80 38. In particular, the required degree of specifĳicity varies according to the form of participation alleged against an accused.81 Where direct participation is alleged in an indictment, we opine that the Prosecution’s obligation to provide particulars in an indictment must be adhered to fully.82 39. Where superior responsibility is alleged, the liability of an accused depends on several material factors such as the relationship of the accused to his subordinates, his knowledge of the crimes and the necessary and reasonable measures that he failed to take to prevent the crimes or to punish his subordinates. Therefore, these are material facts that must be pleaded with a sufffĳicient degree of specifĳicity.83 40. In considering the extent to which there is compliance with the specifĳicity requirement in an indictment, the term specifĳicity should not be understood to have any special meaning. It is to be understood in its ordinary meaning as being specifĳic in regard to an object or subject matter. An object or subject matter that is particularly named or defĳined cannot be said to lack specifĳicity. Exception to Specifĳicity 41. The pleading principles that apply to indictments at international criminal tribunals difffer from those in domestic jurisdictions because of the nature and scale of the crimes when compared with those in domestic jurisdictions. For this reason, there is a narrow exception to the specifĳicity requirement for indictments at international criminal tribunals. In some cases, the widespread nature and sheer scale of the alleged crimes make it unnecessary and impracticable to require a high degree of specifĳicity.84

2. Challenges to an Indictment on Appeal 42. Challenges to the form of an indictment should be made at a relatively early stage of proceedings and usually at the pre-trial stage pursuant to Rule 72(B)(ii) of

79 Kvoćka Form of the Indictment Decision, para. 14. 80 Kupreškić Appeal Judgment, para. 89. 81 Krnojelac Form of the Indictment Decision, para. 18. 82 Brđanin Form of the Indictment Decision, para. 22. 83 Krnojelac Form of the Indictment Decision, para. 18; Ntagerura Trial Judgment, para. 35. 84 Kvoćka Form of the Indictment Decision, para. 17. judgments 1839 the Rules of Procedure and Evidence (“Rules”) which provides that it should be made by a preliminary motion.85 An accused, therefore, is in the ordinary course of events expected to challenge the form of an indictment prior to the rendering of judgment or at the very least, challenge the admissibility of evidence of material facts not pleaded in an indictment by interposing a specifĳic objection at the time the evidence is introduced.86 43. Failure to challenge the form of an indictment at trial is not, however, an absolute bar to raising such a challenge on appeal.87 An accused may well choose not to interpose an objection when certain evidence is admitted or object to the form of an indictment, not as a means of exploiting a technical flaw, but rather, because the accused is under the reasonable belief that such evidence is being introduced for purposes other than those that relate to the nature and cause of the charges against him. 44. Where an accused fails to make specifĳic challenges to the form of an indictment during the course of the trial or challenge the admissibility of evidence of material facts not pleaded in the indictment, but instead raises it for the fĳirst time on appeal, it is for the Appeals Chamber to decide the appropriate response. Where the Appeals Chamber holds that an indictment is defective, the options open to it are to fĳind that the accused waived his right to challenge the form of an indictment, to reverse the conviction, or to fĳind that no miscarriage of justice had resulted notwithstanding the defect.88 In this regard the Appeals Chamber may also fĳind that any prejudice that may have been caused by a defective indictment was cured by timely, clear and consistent information provided to the accused by the Prosecution.89 45. The Appeals Chamber must ensure that a failure to pose a timely challenge to the form of the indictment did not render the trial unfair. The primary concern at the appeal stage therefore, when faced with a challenge to the form of an indictment, is whether the accused was materially prejudiced.90

85 Rule 72(B)(ii) expressly provides that preliminary motions by the accused include “[o]bjec- tions based on defects in the form of the indictment.” 86 Niyitegeka Appeal Judgment, para. 199. 87 Semanza Trial Judgment, para. 42. 88 Niyitegeka Appeal Judgment, paras. 195–200. 89 Kupreškić Appeal Judgment, para. 114 (“The Appeals Chamber, however, does not exclude the possibility that, in some instances, a defective indictment can be cured if the Prosecution provides the accused with timely, clear and consistent information detailing the factual basis underpinning the charges against him or her. Nevertheless, in light of the factual and legal complexities normally associated with the crimes within the jurisdiction of this Tribunal, there can only be a limited number of cases that fall within that category.”). See also Ntakirutimana Appeal Judgment, para. 27. 90 Kupreskic Appeal Judgment, para. 115. 1840 part iv

B. Prosecution’s Second Ground of Appeal: Locations Not Pleaded in the Indictment 1. Trial Chamber’s Findings 46. The substance of the Prosecution’s Second Ground of Appeal is that the Trial Chamber erred in law and in fact in failing to make fĳindings on the responsibility of each Appellant in respect of crimes committed in several locations in Koindugu and Bombali Districts, Freetown and other parts of the Western Area and in Port Loko District including other locations enumerated in the Ground of Appeal, in respect of which evidence had been led. 47. The Trial Chamber in ruling on the submission of Brima complaining among other things, that the Indictment was impermissibly vague, because particulars of where the crimes occurred were not given, stated 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 [and that] while such evidence may support proof of the existence of an armed conflict or a widespread or systematic attack on a civilian population, no fĳinding of guilt for those crimes may be made in respect of such locations not mentioned in the indictment.”91 48. It had been pleaded in several paragraphs of the Indictment that particular acts took place in several named locations in named Districts. It was made clear that the named locations were not exhaustive of the locations where the acts took place. An example is paragraph 45 of the Indictment where it was alleged that “members of AFRC/RUF unlawfully killed several hundred civilians in various locations in Kono District, including Koidu, Tombodu, Foindu, Willifeh, Mortema and Biaya.” Commenting on this manner of pleading the Trial Chamber stated: “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 unidentifĳied crimes in other locations are being charged as well.”92 49. The Trial Chamber found that with respect to crimes alleged in the Indictment, the Prosecution led evidence of offfences which occurred in locations not specifĳically pleaded. As a consequence, it held that with the exception of Counts 9, 12 and 13 the crimes of recruitment of child soldiers, abductions and forced labour and sexual slavery (the three “enslavement crimes”), the Indictment was defective and that it would not make any fĳindings on crimes perpetrated in

91 AFRC Trial Judgment, para. 37. 92 Ibid., at para. 37. judgments 1841 locations not specifĳically pleaded. It is to be noted that the exception made by the Trial Chamber was because the Accused had “not specifĳically objected to lack of specifĳicity with respect to locations [in] relation to enslavement, sexual slavery and child soldier recruitment in Counts 9,93 12 and 13,” and that in the interest of justice they would treat pleading of those counts as permissible. The Trial Chamber held that evidence of crimes perpetrated in locations not specifĳically pleaded would 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.”94

2. Submissions of the Parties (a) Prosecution’s Submissions 50. The Prosecution submits that contrary to the Trial Chamber’s fĳindings, “locations” were properly pleaded in the Indictment and that in the alternative any defects in the Indictment were cured by providing timely, clear and consistent information to the Accused.95 51. It submits that the Indictment is not defective with respect to the pleading of locations and that whilst certain locations may not have been listed exhaustively, they were nonetheless correctly pleaded. The Indictment uses the terms “various” and “including” to demonstrate clearly that named locations within districts of Sierra Leone were not an exhaustive list of locations where alleged crimes occurred. This it is argued is sufffĳicient for an Indictment to be properly pleaded and satisfĳies the requirement that material facts must be pleaded with sufffĳicient specifĳicity in an indictment. 52. In support of its argument, the Prosecution submitted that Kamara had fĳiled a preliminary motion at the pre-trial stage alleging just such a lack of specifĳicity in the pleading of locations in the Indictment.96 Kamara’s argument, however, was expressly rejected by Trial Chamber I97 which had at the time dealt with the preliminary motion. Consequently, the Prosecution contends that Trial Chamber II’s fĳinding in its Judgment that locations were not properly pleaded, amounted to a “[reversal of] previous interlocutory decisions in the case, or [a decision] proprio motu that the Indictment was defective.”98 It further argues that in so doing, Trial

93 Ibid., at para. 41. 94 Ibid., at para. 38. 95 Prosecution Appeal Brief, para. 197. 96 Ibid., at paras. 201–203. 97 Kamara Form of the Indictment Decision, paras. 40–43. 98 Prosecution Appeal Brief, para. 211 (At the time that the Kamara preliminary motion was fĳiled, the case was before Trial Chamber I comprised of Judges Bankole Thompson, Pierre Boutet, and Benjamin Mutanga Itoe. Subsequently, with the creation of a second Trial Chamber for the Special 1842 part iv

Chamber II committed an error of law or procedure in that it reversed a previous interlocutory decision “without fĳirst giving the parties the opportunity to argue the point.”99 53. The Prosecution further asserts that apart from Kamara’s preliminary motion, the Accused never raised an objection with respect to the pleading of locations in the Indictment. In particular, the Accused did not raise the issue in motions for acquittal pursuant to Rule 98 of the Rules, nor did the Trial Chamber in its Rule 98 Decision give notice to the Parties that it “had taken a decision not to consider evidence relating to locations not specifĳically pleaded … otherwise than for the purpose of establishing whether there was a widespread and systematic attack against the civilian population.”100 54. The Prosecution submits, that as it was not aware that the Trial Chamber would not consider evidence relating to locations not specifĳically pleaded in the Indictment, and was never affforded an opportunity to make representations on the issue,101 it was “entitled to proceed at trial on the basis that the Indictment was not defective in pleading the locations in the way that it did ….”102 55. The Prosecution further submits that as a general principle of law, locations of crimes should be pleaded in an indictment but that the degree of specifĳicity depends on the nature of the Prosecution’s case. In circumstances where crimes are alleged on a large scale, details of precise locations of events need not be pleaded.103 It further submits that the Trial Chamber recognised these principles and the large scale and prolonged nature of the conflict in Sierra Leone. Notwithstanding this recognition, it argues that the Trial Chamber failed to apply the law with respect to the pleading of locations.104 56. Finally, the Prosecution submits that the Appellant “made no motions during the trial … in respect of Prosecution evidence of crimes in locations not spe- cifĳically pleaded … [and that therefore, the Appellant] waived their right to now claim [they were] prejudiced.”105 This failure to object, it argued, requires the Appellant to bear the burden of establishing that the pleading of locations in the

Court, the case was transferred to Trial Chamber II (Judges Richard Lussick, Theresa Doherty and Julia Sebutinde). In efffect, the Prosecution’s submission is that Trial Chamber II reversed in the Trial Judgment, a pre-trial decision rendered by Trial Chamber I.). 99 Ibid., at para. 211. 100 Ibid., at para. 209. 101 Transcript, AFRC Appeal Hearing, 12 November 2007, p. 16. 102 Prosecution Appeal Brief, para. 206. 103 Ibid., at para. 220. 104 Ibid., at para. 221. 105 Ibid., at para. 223. judgments 1843

Indictment was defective, and of establishing that their ability to prepare a defence was materially impaired by that defect.106 57. As a consequence of its submissions, the Prosecution requests the Appeals Chamber to revise the Trial Chamber’s fĳinding or remit matters back to the Trial Chamber for further “fĳindings of fact on whether each of the Accused is individually responsible for these crimes.”107 (b) Response of the Accused 58. In response, Brima and Kamara contend that Trial Chamber I’s “Decision and Order on Defence Preliminary Motion for Defects in the Form of the Indictment” suggests that words as: “such as,” “various locations,” or “various areas … including” are contextual and that in context, that Decision supports the use of such terms only to demonstrate the widespread and systematic nature of an attack.108 They argue that the Prosecution’s contention that it was not put on notice of defects in the Indictment so far as the pleading of locations is concerned is without merit and that the Trial Chamber’s “Decision on Defence Motions for Judgement of Acquittal Pursuant to Rule 98” was unambiguous in its meaning and efffect.109 59. The Appellant Kanu submits that the Indictment failed to specify adequately locations in which certain crimes were committed and was therefore defective.110 According to Kanu, where an Indictment is found to be defective, consideration must also be given to whether the Appellant was accorded a fair trial. In this instance, Kanu insists that he was entitled to assume that the list of alleged locations in the Indictment was exhaustive. He contends that “the word ‘including’ in the Indictment, in so far as it left the list of places open, did not make it clear that the crimes in question were also committed in locations … other than those expressly mentioned.”111 According to Kanu, this defect materially afffected his ability to prepare his defence and is contrary to the general principle of law requiring that “the location of crimes alleged to have been committed be specifĳied in the Indictment with as much clarity as possible so that the Accused is not materially prejudiced in the preparation of his defence.”112

106 Ibid., at para. 211. 107 Ibid., at para. 237. 108 Prosecutor v. Brima, Kamara and Kanu, SCSL-2004-16-A, Brima Response to Prosecution’s Appeal Brief, 4 October 2007, para. 24 [Brima Response Brief]; Prosecutor v. Brima, Kamara and Kanu, SCSL-2004-16-A, Kamara Response to Prosecution Appeal Brief, 4 October 2007, para. 32 [Kamara Response Brief]. 109 Brima Response Brief, para. 26; Kamara Response Brief, para. 34. 110 Prosecutor v. Brima, Kamara and Kanu, SCSL-2004-16-A, Respondent’s Submissions-Kanu Defence, 4 October 2007, para. 2.9 [Kanu Response Brief]. 111 Ibid., at para. 2.9. 112 Ibid., at para. 2.14. 1844 part iv

60. All the Appellants therefore submit that the Trial Chamber correctly arrived at its conclusion and in so doing protected the fair trial rights of the Appellant. 3. Discussion: Reversal of a Previous Interlocutory Decision 61. We fĳind that Trial Chamber II reconsidered the decision reached by Trial Chamber I and came to a diffferent conclusion with respect to the pleading of locations in the Indictment. 62. It seems to us that the following questions arise for determination: (i) Whether Trial Chamber II properly reconsidered issues relating to the alleged defects in the Indictment; (ii) If Trial Chamber II had such power, whether it ought not to have given the parties an opportunity to be heard on the matter. 63. In the Ntagerura et al. case, the ICTR Appeals Chamber held that it falls within the discretion of a Trial Chamber to reconsider a previous decision if a clear error of reasoning has been demonstrated or if it is necessary to prevent an injustice.113 We endorse that opinion. Consequently, whether or not an issue relating to the form of an indictment should be reconsidered should be determined on a case-by-case basis having regard to the stage of proceedings, the issues raised by the earlier decision and the efffect of reconsideration or reversal on the rights of the Parties. 64. With regard to question (ii) the Parties ought to have been given an opportunity to be heard on the matter as natural justice demands. However, even if they failed to accord the Parties that opportunity, this Chamber has the power to review the situation and come to its own conclusion in the interest of justice. In all the circumstances of the case, we opine that the Trial Chamber’s error in not expressly giving notice to the Parties of its intention to reconsider the pre-trial decision, and its failure to re-open the hearings did not invalidate the decision. The Trial Chamber’s limited treatment of the evidence of crimes committed in such locations was a proper exercise of its discretion in the interest of justice, taking into account that it is the Prosecution’s obligation to plead clearly material facts it intends to prove, so as to affford the Appellants a fair trial. 65. The Prosecution’s Second Ground of Appeal therefore fails. C. Prosecution’s Fourth Ground of Appeal and Kanu’s Tenth Ground of Appeal: Joint Criminal Enterprise 1. Trial Chamber’s Findings 66. Prior to the establishment of Trial Chamber II, Trial Chamber I, ruling on a preliminary motion brought by the Appellant, dealt with several pre-trial issues in

113 Ntagerura Appeal Judgment, para. 55. judgments 1845 this case, including the form of the Indictment and the pleading of joint criminal enterprise (“JCE”) as a form of liability. In this regard the Trial Chamber held that: “the Indictment in its entirety, is predicated upon the notion of joint criminal enterprise … [and that] the nature of the alleged joint criminal enterprise, the nature of the Accused’s participation in it, the identity of those involved in the same, and the time frame of the alleged joint criminal enterprise are all pleaded with the degree of particularity as the factual parameters of the case admits.”114 67. On 17 January 2005, the case was transferred to Trial Chamber II. In the AFRC Trial Judgment, Trial Chamber II revisited the question whether joint criminal enterprise was properly pleaded, and departed from Trial Chamber I’s pre-trial fĳindings. Trial Chamber II concluded that JCE was not properly pleaded in the Indictment. According to Trial Chamber II, the common purpose of the joint criminal enterprise, i.e., “to take any actions necessary to gain and exercise political power and control over the territory of Sierra Leone,” was not an inherently criminal conduct.115 It also found, among other things, that whilst it generally concurred with Trial Chamber I’s holding that paragraphs 33 and 34 of the Indictment must be read as a whole, “these two paragraphs do not clarify what criminal purpose the parties agreed upon at the inception of the agreement.”116 It also held that if a new common purpose had emerged which involved international crimes, such should have been pleaded because: “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 enterprise either between the AFRC and the RUF or within the AFRC. All those new and diffferent 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.”117

2. Submission of the Parties 68. In its Fourth Ground of Appeal the Prosecution now challenges the Trial Chamber’s fĳinding that the joint criminal enterprise was defectively pleaded. The Prosecution submits that the Trial Chamber committed a procedural and legal error by reconsidering, at the fĳinal judgment stage, earlier interlocutory decisions concerning defects in the form of the Indictment without reopening the hearings.118 It also submits that the Trial Chamber committed a procedural, legal and factual error in fĳinding that joint criminal enterprise liability was defectively pleaded in the Indictment.119 In the alternative, it submits that even if joint

114 Kamara Form of the Indictment Decision, para. 52. 115 AFRC Trial Judgment, paras. 66–70. 116 Ibid., at para. 71. 117 Ibid., at para. 80. 118 Prosecutor v. Brima, Kamara and Kanu, SCSL-2004-16-A, Public Prosecution’s Notice of Appeal, 2 August 2007, para. 12(i) [Prosecution Notice of Appeal]. 119 Ibid., at para. 12(ii)(a). 1846 part iv criminal enterprise liability was defectively pleaded, the defects were subsequently cured or were of such a nature that they did not prejudice the Defence so as to justify the Trial Chamber’s failure to consider joint criminal enterprise liability.120 69. Kanu, in his Tenth Ground of Appeal, submits that once the Trial Chamber found that joint criminal enterprise had been defectively pleaded in the Indictment, it should have quashed the Indictment because the Indictment was predicated in its entirety on the notion of a joint criminal enterprise.121 He also submits that the defective Indictment substantially prejudiced him in the preparation of his defence because at all material times he was unsure of the exact nature of the case against him.122 70. The Prosecution replies that the purpose of the joint criminal enterprise was inherently criminal and that joint criminal enterprise was therefore not defectively pleaded.123 It argues that “even where the ultimate aim or objective of a common enterprise is not in itself inherently criminal, it is nonetheless a joint criminal enterprise if the participants have a common purpose of committing particular types of crimes in order to achieve that objective.”124 The Prosecution argues that the Trial Chamber erred in treating the “ultimate objective of the joint criminal enterprise as the alleged common criminal purpose itself, and in fĳinding that the Indictment therefore did not plead a joint criminal enterprise that was inherently criminal.”125 In particular, it submits that the Indictment as a whole alleges a common plan to carry out a campaign of terrorising and collectively punishing the civilian population of Sierra Leone through the commission of crimes within the jurisdiction of the Special Court, in order to achieve the ultimate objective of gaining and exercising political power and control over the territory of Sierra Leone.126 71. Brima and Kamara in their response submit that by alleging in the Indictment that “the members of the JCE were willing to ‘take any actions necessary,’ ” the Prosecution failed to indicate clearly “the criminal means involved in conducting the JCE ….”127 Kanu submits that “gaining and exercising control over the population of Sierra Leone” is not a crime under international law and that with respect to JCE, an indictment must allege a common purpose which is a crime under

120 Ibid., at para. 12(ii)(b). 121 Kanu Appeal Brief, para. 10.2. 122 Ibid., at para. 10.3. 123 Prosecution Appeal Brief, paras. 393–394. 124 Ibid., at para. 386. 125 Ibid., at para. 388 (emphasis removed). 126 Ibid., at paras. 389, 391. 127 Brima Response Brief, para. 68; Kamara Response Brief, para. 115 (emphasis removed) judgments 1847 international law.128 Further, that the Prosecution should have pleaded unambiguously the joint criminal enterprise upon which it intended to hold him criminally responsible for the crimes alleged in paragraphs 34, 38, 39, 40, and 41 of the Indictment.129

3. Discussion 72. Article 6(1) of the Statute which is in the same terms as Article 7(1) of the ICTY Statute prescribes individual criminal responsibility for acts or transactions in which a person has been personally engaged or in some other way participated in one or more of the fĳive ways stated in the Article.130 As was said by the ICTY Appeals Chamber in Tadić: “[t]he basic assumption must be that in international law as much as in national systems, the foundation of criminal responsibility is the principle of personal culpability: nobody may be held criminally responsible for acts or transactions in which he has not personally engaged or in some other way participated (nulla poena sine culpa).”131 73. Article 6(1) does not expressly prescribe individual criminal responsibility through participation in the realisation of a common design or purpose. It was in these circumstances that the Appeals Chamber of ICTY in Tadić developed a doctrine of individual criminal responsibility for participation in a JCE. 74. The ICTY Appeals Chamber reasoned thus: “An interpretation of the Statute based on its object and purpose leads to the conclusion that the Statute intends to extend the jurisdiction of the International Tribunal to all those ‘responsible for serious violations of international humanitarian law’ committed in the former Yugoslavia (Article 1). As is apparent from the wording of both Article 7(1) and the provisions setting forth the crimes over which the International Tribunal has jurisdiction (Articles 2 to 5), such responsibility for serious violations of international humanitarian law is not limited merely to those who actually carry out the actus reus of the enumerated crimes but appears to extend also to other offfenders (see in particular Article 2, which refers to committing or ordering to be committed grave breaches of the Geneva Conventions and Article 4 which sets forth various types of offfences in relation to genocide, including conspiracy, incitement, attempt and complicity) … Thus, all those who have engaged in serious violations of international humanitarian law, whatever the manner in which they may have perpetrated, or participated in the

128 Kanu Response Brief, para. 4.24. 129 Ibid., at para. 4.25. 130 Article 6(1) of the Statute provides that: “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.” 131 Tadić Appeal Judgment, para. 186. 1848 part iv

perpetration of those violations, must be brought to justice. If this is so, it is fair to conclude that the Statute does not confĳine itself to providing for jurisdiction over those persons who plan, instigate, order, physically perpetrate a crime or otherwise aid and abet in its planning, preparation or execution. The Statute does not stop there. It does not exclude those modes of participating in the commission of crimes which occur where several persons having a common purpose embark on criminal activity that is then carried out either jointly or by some members of this plurality of persons. Whoever contributes to the commission of crimes by the group of persons or some members of the group, in execution of a common criminal purpose, may be held to be criminally liable, subject to certain conditions, which are specifĳied below … Under these circumstances, to hold criminally liable as a perpetrator only the person who materially performs the criminal act would disregard the role as co-perpetrators of all those who in some way made it possible for the perpetrator physically to carry out that criminal act. At the same time, depending upon the circumstances, to hold the latter liable only as aiders and abettors might understate the degree of their criminal responsibility … This interpretation, based on the Statute and the inherent characteristics of many crimes perpetrated in wartime, warrants the conclusion that international criminal responsibility embraces actions perpetrated by a collectivity of persons in furtherance of a common criminal design. It may also be noted that – as will be mentioned below – international criminal rules on common purpose are substantially rooted in, and to a large extent reflect, the position taken by many States of the world in their national legal systems.”132 75. The actus reus for all forms of joint criminal enterprise liability consists of the following three elements: (i) a plurality of persons; (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; (iii) participation of the accused in the common design involving the perpetration of one of the crimes provided for in the Statute.133 76. The question for determination in this appeal pertains to the requisite nature of the common plan, design or purpose. It can be seen from a review of the jurisprudence of the international criminal tribunals that the criminal purpose underlying the JCE can derive not only from its ultimate objective, but also from the means contemplated to achieve that objective. The objective and the means to achieve the objective constitute the common design or plan. 77. In Kvočka et al. the ICTY Appeals Chamber was of the opinion that “the common design that united the accused was the creation of a Serbian state within the former Yugoslavia, and that they worked to achieve this goal by participating in

132 Ibid., at paras. 189–193 (emphasis original). 133 Ibid., at para. 227. judgments 1849 the persecution of Muslims and Croats.”134 Whereas creation of a Serbian State within the former Yugoslavia is not a crime within the Statute of the ICTY, the means to achieve the goal, such as persecution, constitute crimes within that statute. 78. Reference to the indictments in cases of Martić and Haradinaj et al., cited by the Prosecution, is similarly instructive. In Haradinaj et al. for example, it would appear that the Trial Chamber accepted135 that the pleading of joint criminal enterprise was proper notwithstanding the Prosecution pleading a common purpose (namely “consolidate[ing] the total control of the Kosovo Liberation Army over the KLA operational zone of Dukagjin”) which itself does not amount to any crime within the Statute of the ICTY.136 However, the Haradinaj Indictment clearly alleges that the joint criminal enterprise involved the commission of crimes such as intimidation, abduction, imprisonment, beating, torture and murder of targeted civilians in violation of Articles 3 and 5 of the ICTY Statute. 79. Furthermore, the Appeals Chamber notes that the Rome Statute of the International Criminal Court (“Rome Statute” and “ICC,” respectively) does not require that the joint criminal enterprise has a common purpose that amounts to a crime within the ICC’s jurisdiction. Indeed, the Rome Statute departs altogether from the use of the phrase “amounts to” and instead requires that the “criminal activity or criminal purpose … involves the commission of a crime within the jurisdiction of the Court.”137 This formulation reflects the consensus reached by all of the States negotiating the Statute of the ICC at the Rome Conference, and

134 Kvočka Appeal Judgment, para. 46. 135 Haradinaj Form of the Indictment Decision, para. 25 (The Trial Chamber held that the relevant paragraphs plead the responsibility of the Accused pursuant to JCE in sufffĳicient detail to inform them of the charges against them.). 136 Prosecutor v. Haradinaj, IT-04-84, Second Amended Indictment, 26 April 2006, para. 26. The Haradinaj Indictment pleads that the common purpose: … which necessarily involved the commission of crimes against humanity and violations of the laws or customs of war, was the consolidation of total control of the Kosovo Liberation Army over the KLA operational zone of Dukagjin by attacking and persecuting certain sections of the civilian population there: namely the unlawful removal of Serb civilians from that area, and the forcible, violent suppression of any real or perceived form of collaboration with the Serbs by Albanian or Roma civilians there. The criminal purpose included the intimidation, abduction, imprisonment, beating, torture and murder of targeted civilians in violation of Articles 3 and 5 of the Tribunal’s Statute. 137 Art. 25(3) of the Rome Statute states: “In accordance with this Statute, a person shall be criminally responsible and liable for punishment for a crime, within the jurisdiction of the Court if that person … in any other way contributes to the commission of such a crime by a group of persons acting with a common purpose. Such contribution shall be intentional and shall either: i. Be made with the aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involves the commission of a crime within the jurisdiction of the Court; or ii. Be made in the knowledge of the intention of the group to commit the crime.” 1850 part iv therefore is a valuable indication of the views of States and the international community generally on the question of what constitutes a common purpose. 80. In view of the foregoing, the Appeals Chamber concludes that the requirement that the common plan, design or purpose of a joint criminal enterprise is inherently criminal means that it must either have as its objective a crime within the Statute, or contemplate crimes within the Statute as the means of achieving its objective. 81. Turning to the present Indictment, in order to determine whether the Prosecution properly pleaded a joint criminal enterprise, the Indictment should be read as a whole.138 In particular, the most relevant paragraphs of the Indictment to the pleading of JCE are paragraphs 33–35, which state: “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. 35. ALEX TAMBA BRIMA, BRIMA BAZZY KAMARA and SANTIGIE BORBOR KANU, by their acts or omissions, are individually criminally responsible pursuant to Article 6(1). of the Statute for the crimes referred to in Articles 2, 3 and 4 of the Statute as alleged in this Indictment, which crimes each of them planned, instigated, ordered, committed or in whose planning, preparation or execution each Accused otherwise aided and abetted, or which crimes were within a joint criminal enterprise in which each Accused participated or were a reasonably foreseeable consequence of the joint criminal enterprise in which each Accused participated.”139 82. The ultimate objective alleged in paragraph 33 of the Indictment, namely: to “take any actions necessary to gain and exercise political power and control over

138 Ntagerura Trial Judgment, para. 30 (“In assessing an Indictment, the Chamber is mindful that each paragraph should not be read in isolation but rather should be considered in the context of the other paragraphs in the indictment.”); see also Gacumbitsi Trial Judgment, para. 176 (interpreting a general and introductory paragraph only to the extent of the greater detail provided in subsequent paragraphs). 139 Indictment, paras. 33–35 (emphasis original). judgments 1851 the territory of Sierra Leone, in particular the diamond mining areas,”140 may not of itself amount to a crime within the Statute of the Special Court, nonetheless, paragraph 33 of the Indictment read together with paragraphs 34 and 35 demonstrates the Prosecution’s allegation that the parties to the common enterprise shared a common plan and design to achieve the objective by conduct constituting crimes within the Statute. 83. Paragraph 33 of the Indictment states that the plan was to “take any actions necessary” to gain territorial control and political power. Paragraph 34 of the Indictment states that the actions “included”: controlling the population of Sierra Leone; using members of the population to support the JCE; and specifĳically enumerated crimes such as “unlawful killings, abductions, forced labour, physical and sexual violence.” Paragraph 35 of the Indictment also indicates that crimes “referred to in Articles 2, 3, and 4 of the Statute … were within [the] joint criminal enterprise,” or that those crimes were a reasonably foreseeable consequence of the JCE.141 84. The Appeals Chamber holds that the common purpose of the joint criminal enterprise was not defectively pleaded. Although the objective of gaining and exercising political power and control over the territory of Sierra Leone may not be a crime under the Statute, the actions contemplated as a means to achieve that objective are crimes within the Statute. The Trial Chamber took an erroneously narrow view by confĳining its consideration to paragraph 33 and reading that paragraph in isolation. Furthermore, the Trial Chamber erred in its consideration of “evidence” adduced at trial to determine whether the Indictment was properly pleaded.142 The error arose because determination of whether the Prosecution properly pleaded a crime must be determined on the basis of whether the Prosecution pleaded all the material facts in the Indictment, not whether it had adduced evidence to support the allegations.143 85. Several other issues arose in the context of JCE for which the Appeals Chamber wishes to express itself. The Trial Chamber erred in concluding that the Prosecution could not plead the basic and extended forms of joint criminal enterprise liability in the alternative on the grounds that the two forms, as pleaded, logically exclude each other.144 Pleading the basic and extended forms of JCE in the alternative is now a well-established practice in the international criminal

140 Ibid., at para. 33. 141 Ibid., at para. 35. 142 AFRC Trial Judgment, paras. 74–76. 143 Brđanin Decision on Motion to Dismiss Indictment, para. 15; Krajisnik Decision on Form of the Indictment, para. 8. 144 AFRC Trial Judgment, para. 71 (fĳinding that “[i]f 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.”). 1852 part iv tribunals.145 The Trial Chamber erred in fĳinding that the Indictment failed to specify the period covered by the JCE.146 That period is that covered by all of the alleged crimes, which in this case is between 25 May 1997 and January 2000.147 86. The Appeals Chamber having concluded that joint criminal enterprise was not defectively pleaded in the Indictment, need not address the Trial Chamber’s fĳinding that the Prosecution failed to cure the defective pleading of JCE.148 Similarly, Kanu’s Tenth Ground of Appeal, that the Trial Chamber erred in law by failing to quash the entire Indictment after fĳinding that joint criminal enterprise was defectively pleaded, must fail.

4. Disposition 87. The Appeals Chamber has found that the Trial Chamber erred in law when it concluded that JCE was not properly pleaded in the Indictment. Consequently, the Prosecution’s Fourth Ground of Appeal succeeds, however we see no need to make further factual fĳindings or to remit the case to the Trial Chamber for that purpose, having regard to the interest of justice.

D. Prosecution’s Sixth Ground of Appeal: The Duplicity of Count 7 88. In its Sixth Ground of Appeal, the Prosecution challenges the Trial Chamber’s fĳinding that Count 7 of the Indictment violated the “rule against duplicity” and prejudiced the rights of the Appellant. Count 7 of the Indictment alleged that the Accused bore individual criminal responsibility for “sexual slavery and any other form of sexual violence, a crime against humanity punishable under Article 2.g of the Statute.”149

145 See Prosecutor v. Karemera, ICTR-97-24, International Criminal Tribunal for Rwanda, Amended Indictment, 23 February 2005, para. 7; Prosecutor v. Mpambara, ICTR-01-65, International Criminal Tribunal for Rwanda, Amended Indictment, 7 March 2005, para. 6; Prosecutor v. Brdanin, IT-99-36, International Criminal Tribunal for the former Yugoslavia, Sixth Amended Indictment, 9 December 2003, para. 27; Prosecutor v. Milošević, IT-02-54, International Criminal Tribunal for the former Yugoslavia, Amended Indictment (Bosnia), para. 6, 8; Prosecutor v. Krajisnik and Plavšić, IT-00-39 & 40, Amended Consolidated Indictment, 7 March 2002, para. 5. 146 AFRC Trial Judgment at para. 77. The Appeals Chamber fĳinds that an Indictment alleging a joint criminal enterprise must indicate the time period over which the enterprise existed. Established case law on the pleading of joint criminal enterprise requires that an indictment must allege the nature of the enterprise, the time period, the persons involved, and the nature of the accused’s participation in the joint criminal enterprise. See Krnojelac Decision on Form of Second Amended Indictment, para. 16. 147 Paragraphs 33 to 35 of the Indictment do not provide a time frame, but they should be read together with paragraph 32 of the Indictment which alleges that “[a]t all times relevant to this Indictment,” the three accused persons, “through their association with the RUF, acted in concert with CHARLES GHANKAY TAYLOR” (emphasis original). 148 AFRC Trial Judgment, para. 85. 149 The Appeals Chamber also notes that sexual slavery was concurrently charged in the Indictment as a war crime under Count 9 which alleges the commission of: “Outrages upon judgments 1853

89. The Trial Chamber found that Count 7 violated the rule against duplicity and dismissed the count in its entirety.150 It noted that the argument that the Count was bad for duplicity, should have been raised by a Preliminary Motion under Rule 72(B)(ii). Nonetheless, the Trial Chamber considered that it was “not precluded from reviewing in the [Trial Judgment] whether shortcomings in the Form of the Indictment have actually resulted in prejudice to the rights of the Accused.”151 The Trial Chamber was satisfĳied that the Appellant did not delay raising the objection for tactical advantages, but had merely followed the “Separate and Concurring Opinion” of Justice Sebutinde to the Rule 98 Decision.152 In Justice Sebutinde’s Rule 98 Opinion, she held that Count 7 was duplicitous, duplex and defective and could “prejudice a fair trial of accused persons if uncorrected.”153 Justice Sebutinde was of the opinion that Count 7 was not incurably defective (at the Rule 98 stage), and suggested that it could be cured by an amendment dividing the offfences into two separate counts.154 However, the Trial Chamber indicated that it was not considering the question of duplicity and would instead confĳine itself to considering the prima facie state of the evidence to establish Count 7.155 90. In its Judgment, the Trial Chamber revisited Count 7 and endorsed Justice Sebutinde’s Rule 98 Opinion that the Count offfended the rule against duplicity.156 It adopted her Rule 98 Opinion that Article 2.g of the Statute “encapsulates fĳive distinct categories of sexual offfences … each of which is comprised of separate and distinct elements.”157 It held that Count 7 of the Indictment charged the Appellant with two distinct crimes against humanity in one count, namely “sexual slavery” and “any other form of sexual violence.”158 91. On appeal, the Prosecution fĳirst argues that the Trial Chamber committed procedural and legal error by reconsidering earlier interlocutory decisions concerning defects in the form of the Indictment at the fĳinal judgment stage without fĳirst reopening hearings on the issue.159 Second, the Prosecution argues that the Trial Chamber committed legal, factual or procedural error in fĳinding that Count 7 was defectively pleaded.160 In the alternative, the Prosecution argues that even if

personal dignity, a VIOLATION OF ARTICLE 3 COMMON TO THE GENEVA CONVENTIONS AND OF ADDITIONAL PROTOCOL II, punishable under Article 3.e of the Statute” (emphasis original). 150 AFRC Trial Judgment, para. 95. 151 Ibid., at para. 93. 152 Ibid., at para. 93. 153 Sebutinde Rule 98 Opinion, para. 8. 154 Ibid., at para. 9. 155 Rule 98 Decision, para. 163. 156 AFRC Trial Judgment, para. 94. See Sebutinde Rule 98 Opinion, para. 6. 157 Sebutinde Rule 98 Opinion, para. 8. 158 Ibid., at para. 6. 159 Prosecution Notice of Appeal, para. 18(i). 160 Ibid., at para. 18(ii). 1854 part iv

Count 7 was defectively pleaded, any defects were subsequently cured or did not prejudice the Appellant.161 The Prosecution requests the Appeals Chamber to reverse the Trial Chamber’s decision and to revise the Trial Judgment to enter convictions against Brima, Kamara and Kanu under Count 7 for sexual slavery as well as under Count 9 for the war crime of “Outrages upon Personal Dignity.”162 92. The issues that arise for determination in this Ground of Appeal are: (i) whether the Trial Chamber erred in reconsidering the question of duplicity without reopening the issue to the Parties; (ii) whether Count 7 violates the rule against duplicity; (iii) if it does, whether the defect has been cured and whether the Trial Chamber erred in its choice of remedy. 93. In respect of the fĳirst issue, the Prosecution submits that it was entitled to proceed on the basis that the form of pleading of Count 7 was not an issue because the Trial Chamber had settled issues of defects in the form of the Indictment in earlier interlocutory decisions, none of which challenged the manner in which the Prosecution pleaded Count 7.163 Furthermore, it submits that it is impermissible for an accused to raise a challenge to the form of the Indictment at the end of a trial.164 94. In response, Brima and Kamara submit that the Trial Chamber is empowered to reconsider its earlier decisions approving the Indictment without reopening hearings because the Prosecution had an opportunity in its closing arguments to address Count 7 but chose to do so only in a very cursory manner.165 They further argue that the Prosecution failed to take advantage of an opportunity to amend the Indictment pursuant to Rule 50, as suggested by Justice Sebutinde’s Rule 98 Opinion.166 95. In respect of the second issue, the Prosecution argues that: (i) “[t]he rule against duplicity, as it exists in national legal systems, does not, and cannot, apply in the same way in proceedings before international criminal courts”;167

161 Ibid., at para. 18(ii). 162 Prosecution Appeal Brief, para. 531. In its appeal brief the Prosecution notes that multiple convictions under Article 2.g and 3.e for the same conduct would be permissible because each statutory provision involves a materially distinct element not contained in the other. Article 2.g, as a crime against humanity, has chapeau elements which are distinct from those of Article 3.e, which constitutes a war crime. 163 Ibid., at para. 539. 164 Prosecution Appeal Brief, para. 543. 165 Brima Response Brief, para. 103; Kamara Response Brief, 149. 166 Brima Response Brief, para. 100; Kamara Response Brief, para. 146. 167 Prosecution Appeal Brief, para. 547. judgments 1855

(ii) a single count may permissibly charge all violations of a single provision of the Statute;168 (iii) that even if sexual slavery and “any other form of sexual violence” constitute separate crimes, “[t]here was no ambiguity as to the legal characterisation of what the Accused were charged with, or the material facts underpinning those charges”;169 (iv) that while a formal amendment to the Indictment, as suggested in Justice Sebutinde’s Rule 98 Opinion, would have cured Count 7 by recasting it in two separate counts, it “would have been of no practical or substantive consequence whatsoever” because the Defence was in no way prejudiced by the manner in which Count 7 was pleaded.170 96. In their respective response briefs, Brima and Kamara argue that Count 7 is entirely unclear as to what crimes were allegedly committed.171 Kanu submits that he was “severely prejudiced in so far as he was not able to tell precisely which of the two crimes in the Count he should have defended himself against, and that materially afffected the conduct of his defence.”172 97. In respect of the third issue, the Prosecution submits that the Trial Chamber erred by failing to consider whether the defective pleading of Count 7 was subsequently cured by timely, clear, and consistent information.173 In the alternative, it argues that even if the Appellant were not given timely, clear and consistent information, the appropriate remedy, as stated by Justice Doherty in her Partly Dissenting Opinion174, would have been to sever the allegation of “any other form of sexual violence” from Count 7, leaving only the allegation of sexual slavery.175

168 Ibid., at para. 553. 169 Ibid., at para. 554. 170 Ibid., at para. 555. 171 Brima Response Brief, para. 111; Kamara Response Brief, para. 157. 172 Kanu Response Brief, para. 6.9. 173 Prosecution Appeal Brief, para. 565. 174 Doherty Partly Dissenting Opinion. Justice Doherty agreed with the majority’s view that the Prosecution did not sufffĳiciently specify the second limb of Count 7 (‘any other form of sexual violence’), but she disagreed with the view that if Count 7 is duplicitous, the Trial Chamber must dismiss it in its entirety (para. 3). Justice Doherty opined that the majority’s reasoning that Count 7 is “bad for duplicity” is “formalistic and disregard[s] the fundamental issue, which is whether the right of the Accused to be informed promptly and in detail about the nature and the cause of the charges against them has been violated” (para. 2). Justice Doherty did not consider the interests of justice would be served by allowing the accused to invoke their right to quash an indictment after the case has closed without a showing of material prejudice. Furthermore, she noted that the Accused were not only silent on the issue of duplicity throughout the trial, but proceeded to adduce evidence and defend themselves against Count 7 (para. 15). Consequently, Justice Doherty did not consider there to have been a miscarriage of justice in this case and instead of dismissing the count, she would have considered evidence only relating to sexual slavery, not “other forms of sexual violence” (Ibid.). 175 Prosecution Appeal Brief, para. 568. 1856 part iv

98. In response, Brima and Kamara submit that the Trial Chamber’s power to cure defects in the Indictment may be used only where the material facts supporting those charges have not been pleaded with sufffĳicient precision.176 They argue that this power simply allows the Prosecution “to introduce material facts at a later stage in order to give the indictment a sufffĳicient factual basis, and has no relevance to a legal flaw in the wording of the charges.”177 Kanu submits that “the nature of the defect in this instance was such that, short of amending the Indictment, [it] could not be cured” and that the disclosures made by the Prosecution subsequent to the fĳiling of the Indictment actually made his understanding of the charges even less clear.178

1. Discussion 99. The Appeals Chamber is of the opinion that the Prosecution’s argument that the Trial Chamber reconsidered its prior decision is misconceived. Until its fĳinal judgment, the Trial Chamber did not rule on whether Count 7 was defective, even though Justice Sebutinde did point out that the Count was duplicitous in her Rule 98 Opinion. 100. Objections relating to defects in the form of the indictment should normally be raised at the pre-trial stage by way of a preliminary motion.179 Where issues of defect in the form of an indictment are raised after the trial, it is incumbent on the party to show that its preparation of its case was materially impaired by the defect in the Indictment. 101. The rule against duplicity is not about vagueness but about a failure to plead with specifĳicity the offfences charged in the Count. 102. The Appeals Chamber agrees with the Trial Chamber that Article 2.g of the Statute provides for fĳive distinct crimes against humanity, each of which is of a sexual nature, among which are “sexual slavery” and “any other form of sexual violence.” “Sexual slavery” requires the exercise of rights of ownership over the victim, which is not the case for “other forms of sexual violence.” Consequently, Count 7 of the Indictment, which charges the commission of “sexual slavery and any other form of sexual violence,” offfends the rule against duplicity by charging two offfences in the same count. The dispositive question, therefore, is not whether the rule was violated, but what are the consequences. In Bizimungu, the ICTR Appeals Chamber stated that “[t]he rule against duplicity generally forbids the

176 Brima Response Brief, para. 115; Kamara Response Brief, para. 161. 177 Brima Response Brief, para. 116; Kamara Response Brief, para. 162. 178 Kanu Response Brief, para. 6.15. 179 Kupreškić Appeal Judgment, para. 79. judgments 1857 charging of two separate offfences in a single count, although a single count may charge diffferent means of committing the same offfence.”180 In Naletilić & Martinović the ICTY Trial Chamber noted that common law jurisdictions developed the rule against duplicity in order to ensure precision and certainty in charging.181 103. The Appeals Chamber holds that the rule against duplicity applies to international criminal tribunals such that the charging of two separate offfences in a single count renders the count defective, although a single count may charge dif- ferent means of committing the same offfence. Accordingly, Count 7 of the Indictment, which charges the commission of “sexual slavery and any other form of sexual violence,” violates the rule against duplicity. 104. The Prosecution urges that upon fĳinding defect in the form of the Indictment, the Appeals Chamber should examine whether the Appellants were materially impaired in the preparation of their defence. 105. Upon its fĳinding that Count 7 violated the rule against duplicity, the Trial Chamber dismissed the count in its entirety. The Trial Chamber’s choice of remedy was premised on its fĳinding that any proceedings on the basis of a duplicitous count would render the trial unfair to the Appellants. 106. The duplicitous pleading of Count 7 placed the Appellants in the position of having to defend two crimes in the same count. The residual nature of the crime of “any other form of sexual violence” requires clarifĳication of the conduct the Prosecution would rely upon to prove the offfence. 107. A review of case law on this issue reveals that Courts typically quashed convictions entered on duplicitous counts.182 According to other case law, a duplicitous count does not necessarily require the conviction to be quashed.183 Courts have used other remedies which vary, depending on the particular harm to be avoided and the stage at which the threatened harm arises. Some Courts have held that an accused person who has been indicted on the basis of a duplicitous count may nonetheless be properly prosecuted and convicted if either the Prosecutor elects which of the charges in the offfending Count he will proceed with, or the

180 Bizimungu Decision on Leave to File Amended Indictment, para. 31 (holding that it would be improper to charge genocide and complicity in genocide in the same count.). See also Naletilić Decision on Motion to Amend Indictment (drawing a distinction between a count alleging one offfence which involves multiple acts, and a count in which the Prosecutor seeks to include two separate types of offfences.) 181 Naletilić Decision on Motion to Amend Indictment, FN 2. 182 See Cotterill v. Lempriere [1890] L.R. 24 Q.B.D. 634; R. v. Surrey JJ. ex p. Witherick [1932] 1 K.B. 450; R. v. Disney [1933] 2 K.B. 138. But see Lansana and Eleven Others v. R. [1971] 186 ALR S.L. 183 R. v. Thompson [1914] 2 K.B. 99; R. v. Johnson [1945] K.B. 419; United States v. Aguilar, 756 F.2d 1418, 1423 (9th Cir. 1985); United States v. Sturdivant, 244 F.3d 71, 79 (2d Cir. 2001). 1858 part iv

Court instructs the jury to agree as to which of the distinct offfences the defendant actually committed.184 108. In light of the foregoing, the Appeals Chamber considers that the remedies available to the Trial Chamber included: (i) quashing the count; (ii) ordering that the Indictment be amended; (iii) directing the Prosecution to elect to proceed on the basis of one of the two offfences in the duplicitous count; (iv) upon a review of the entire case, determining which of the two offfences charged in the count the Appellant had defended fully, having regard to the manner in which the defence case had been conducted;185 and (v) refusing to consider evidence of one of the two charges so as to eliminate the duplicity of Count 7.186 Each case is to be considered on its own merits. 109. In the instant case, from the evidence accepted by the Trial Chamber and the fĳindings it had made, it should have chosen the option to proceed on the basis that the offfence of sexual slavery had been properly charged in Count 7, return appropriate verdict on that Count in respect of the crime of sexual slavery and struck out the charge of “any other form of sexual violence.” 110. Although the Trial Chamber had not chosen that option, no miscarriage of justice has resulted therefrom. It is not necessary for the Appeals Chamber to substitute a conviction for sexual slavery as the Trial Chamber relied upon the evidence of sexual slavery to enter convictions for Count 9 which charged the offfence of “outrages upon personal dignity.”

E. Kanu’s Second Ground of Appeal: Waiver of Indictment Defects 111. In his Second Ground of Appeal, Kanu alleges that the Trial Chamber erred in law in fĳinding him guilty, under Article 6(1) of the Statute of committing three crimes in Freetown and other parts of the Western Area.187 Due to the Prosecution’s failure to plead material facts with the required degree of specifĳic- ity, the Trial Chamber found the Indictment defective as regards the crimes relating to an amputation carried out near Kissy Old Road and another carried out

184 United States v. Robinson, 651 F.2d 1188, 1195 (6th Cir. 1981); United States v. Ramirez-Martinez, 273 F.3d 903, 915 (9th Cir. 2001); United States v. Aguilar, 756 F.2d 1418, 1422–1423; 1A Charles Wright and Arthur Miller, Federal Practice and Procedure, § 145 (3d ed.). 185 R. v. Jones (1974), 59 Cr. App. R. 120, 126. 186 Doherty Partly Dissenting Opinion, para. 15 (suggesting the consideration of evidence relating only to sexual slavery instead of dismissing the entire count). 187 Kanu Appeal Brief, para. 2.1. judgments 1859 at Upgun.188 It nonetheless concluded that Kanu’s ability to prepare his defence was not materially impaired, having regard to Kanu’s failure to object in a timely manner to evidence being led in respect of these crimes and his cross-examination of witnesses in respect of the same.189 With respect to the remaining crime of looting vehicles at State House in Freetown, although the Trial Chamber did not expressly fĳind the Indictment defective, it appears that it adopted a similar approach.190 112. Kanu submits that the Trial Chamber ought to have dismissed all charges that alleged his personal commission after it established that those counts of the Indictment were defective.191 In support of this submission he argues that in his Pre-Defence Motion he raised several challenges to the validity of the Indictment including lack of specifĳicity regarding diffferent forms of individual criminal responsibility and lack of specifĳicity regarding various Counts.192 He further argues that the Trial Chamber erred in law, in fĳinding that his failure to object to evidence led by the Prosecution, during the course of the trial automatically amounted to a waiver.193 Such evidence, Kanu argues, could have been relevant for purposes other than establishing individual liability.194 Thus, according to Kanu, the Trial Chamber ought not to have concluded that his failure to object amounted to waiver “without fĳirstly satisfying itself that the failure by the Defence to challenge the extraneous evidence was a deliberate defence tactic, in which case the Defence would have been held to have taken a gamble to its detriment.”195 113. In response, the Prosecution submitted that contrary to Kanu’s claims, Kanu had not previously challenged the manner in which the Indictment pleaded crimes that alleged his personal commission.196 Further, in instances where evidence was adduced that tended to show that Kanu personally committed specifĳic crimes, the Prosecution contends that it was clear to Kanu that such evidence would be relied upon to establish his individual responsibility for “committing” crimes.197 The Prosecution fĳinally submits that in any event, it is Kanu who bears the burden of showing that he was prejudiced by the Trial Chamber’s approach and that he has failed to discharge this burden.198

188 AFRC Trial Judgment, paras. 2053, 2050. 189 Ibid., at paras. 2051, 2055. 190 Ibid., at para. 2057. 191 Kanu Appeal Brief, para. 2.1. 192 Ibid., at para. 2.17. 193 Ibid., at para. 2.19. 194 Ibid., at para. 2.20. 195 Ibid., at para. 2.27. 196 Prosecution Response Brief, para. 2.82. 197 Ibid., at para. 2.84. 198 Ibid., at para. 2.86. 1860 part iv

1. Discussion 114. Whether or not the Appellant raised a timely objection at trial will afffect the question on appeal whether he was in fact prejudiced by the defective Indictment. Perusing the Record on Appeal and Kanu’s “Preliminary Motion On Defects In The Indictment,” it is clear that Kanu did not previously complain that the Indictment was defective in respect of his personal commission of the criminal acts alleged. This, therefore being the fĳirst time Kanu has raised this complaint, he must show that he was prejudiced. 115. The Appeals Chamber fĳinds no merit in Kanu’s Second Ground of Appeal and fĳinds that he has manifestly failed in discharging this burden. Neither in his Appeal Brief nor during oral argument did he say that he had no notice of the crimes he was alleged to have personally committed. Further, he neither demonstrated that he was prejudiced, nor that the preparation of his defence was materially impaired by the defect in the Indictment. On the contrary, counsel for Kanu cross-examined witnesses as to specifĳic incidents, and when asked during the appeal hearing why no objection was raised when evidence was being led in respect of the aforementioned crimes, he replied that it was “a question of strategy” at trial.199 116. The Appeals Chamber accordingly rejects Kanu’s Second Ground.

IV. Common Issues of Fact: Evaluation of Evidence and Witness Credibility

A. Brima’s Ninth, Tenth and Eleventh Grounds of Appeal: Evaluation of Evidence 1. Brima’s Ninth Ground of Appeal (a) Submissions of the Parties 117. Under the Ninth Ground of Appeal, Brima submits that the Trial Chamber committed an error of fact or law by resolving doubts in the evidence in favour of the Prosecution.200 In support of this Ground, Brima raises two main arguments. First, that the Trial Chamber failed to address discrepancies between the evidence of witness TF1-184 and pre-trial statements he gave to the Prosecution.201 Second, that other Prosecution witnesses including TF1-334, TF1-167, TF1-184, had incentives to lie and gave conflicting, contradictory or otherwise inconsistent evidence about certain events.202

199 Transcript, AFRC Appeal Hearing, 14 November 2007, p. 22. 200 Brima Appeal Brief, para. 168. 201 Ibid., at para. 169. 202 Ibid., at paras. 176–177. judgments 1861

118. In response, the Prosecution submits that Brima’s arguments are vague and imprecise.203 In particular, it argues that Brima failed to state with precision the reasonable doubt that was resolved in favour of the Prosecution, and how such a doubt was resolved in favour of the Prosecution.204 (b) Discussion 119. The thrust of this Ground of Appeal is that it challenges the Trial Chamber’s evaluation of the evidence and its fĳindings of fact. Brima has not advanced any arguments in support of his contention that the Trial Chamber erred in law and fact by resolving any reasonable doubt in favour of the Prosecution. His general allegation that witnesses had a motive to lie and that their evidence was inconsistent or contradictory, does not refer to any particular instance of error in the Trial Chamber’s analysis of the evidence. On the contrary, the judgment shows that the Trial Chamber carefully considered all the evidence before it, assessed the credibility of the prosecution witnesses including the fact that their evidence was not discredited during cross-examination, and concluded that the witnesses were credible and their evidence reliable.205 Brima has not demonstrated any error in the Trial Chamber’s assessment of the evidence of these witnesses. 120. With respect to the alleged inconsistency between the prior statement and trial testimony of witness TF1-184, the Appeals Chamber reiterates that this is clearly a matter for the Trial Chamber’s evaluation. The mere existence of inconsistencies in the testimony of a witness does not undermine the witness’s credibility. The Trial Chamber has broad discretion to determine the weight to be given to discrepancies between a witness’s testimony and his prior statements. The Appeals Chamber will normally uphold a Trial Chamber’s fĳindings on issues of credibility, including its resolution of inconsistent evidence and will only fĳind that an error of fact occurred when it determines that no reasonable tribunal could have made the impugned fĳinding. 121. The same reasoning applies to Brima’s submission that there were discrepancies between the testimonies of witnesses TF1-334 and TF1-167 relating to events in Karina.206 The Appeals Chamber reiterates that it is for the Trial Chamber to determine whether discrepancies discredit a witness’s testimony. When faced with competing versions of events, it is the prerogative of the Trial Chamber to determine which one is more credible.207 In its consideration of witness TF1-184’s evidence the Trial Chamber stated that:

203 Prosecutor v. Brima, Kamara and Kanu, SCSL-2004-16-A, Response Brief of the Prosecution, 4 October 2007, para. 4.4. 204 Ibid., at para. 4.4. 205 AFRC Trial Judgment, paras. 356–371. 206 Brima Appeal Brief, para. 177. 207 Rutaganda Appeal Judgment, para. 29. 1862 part iv

“although the evidence of the witness was unclear at times, in its cross-examination of the witness the Defence raised no signifĳicant inconsistencies between his evidence in chief and his prior statement to the Prosecution. In addition, the Trial Chamber fĳinds that the witness was not shaken on cross-examination and was generally corroborated by other witnesses.”208 Brima has not demonstrated that the Trial Chamber either committed an error or acted unreasonably in making the above fĳinding. 122. For the foregoing reasons, the Appeals Chamber dismisses Brima’s Ninth Ground of Appeal.

2. Brima’s Tenth and Eleventh Grounds of Appeal: Failure to Consider the Rivalry Between Brima and Witness TF1-334 123. Under his tenth and eleventh Grounds of Appeal, Brima alleges that the Trial Chamber failed to consider his testimony of the rivalry that existed between himself and Prosecution witness TF1-334 and that this occasioned a miscarriage of justice. Similarly, he submits that out of a total of 146 prosecution and defence witnesses called to testify at the trial, the Trial Chamber disproportionately relied on the evidence of two witnesses namely TF1-334 and TF1-167, and that this occasioned a further miscarriage of justice. 124. In his Appeal Brief fĳiled on 13 September 2007, Brima did not profffer any arguments in support of the above Grounds of Appeal, but opted to associate himself with Kamara’s submissions in support of Ground Eight of the latter’s Appeal. The Appeals Chamber will therefore consider Grounds Ten and Eleven of Brima’s Appeal when it deals with Ground Eight of Kamara’s Appeal.

B. Kamara’s Eighth Ground of Appeal: Credibility of Prosecution Witnesses 1. Submissions of the Parties 125. Kamara challenges the credibility of Prosecution witnesses TF1-334, TF1-167, TF1-184 and TF1-153 and submits that these witnesses were co-perpetrators of the crimes for which the Appellants were convicted, and therefore the Trial Chamber ought to have approached their evidence with particular caution. In addition, he submits that in return for their testimony before the Trial Chamber, witnesses TF1- 334, TF1-167 and TF1-184 received preferential treatment while in detention at Pademba Road prison. Furthermore, according to Kamara, there were unresolved discrepancies in the evidence of the Prosecution witnesses and the Trial Chamber failed to provide a reasonable explanation why it chose to rely on the evidence of

208 AFRC Trial Judgment, para. 362. judgments 1863 one witness and not the other. He adds that the Trial Chamber should have evaluated the credibility of the Prosecution witnesses in light of the evidence as a whole, and requests the Appeals Chamber to “review the evidence given by witnesses TF1-153, TF1-334, TF1-184 and TF1-167 especially with regard to issues on which the Trial Chamber relied in order to enter a guilty verdict.”209 126. The Prosecution responds that the Trial Chamber correctly instructed itself on the appropriate legal standards applicable to accomplice evidence.210 In response to the submission that the Trial Chamber had relied exclusively on certain witnesses, the Prosecution submits that the Trial Chamber had not violated the principle enunciated by the ICTY Appeals Chamber in Kupreškić et al. that it must convict in light of the whole trial record.211 It submits further that the Trial Chamber did address the alleged discrepancies in the testimonies of TF1-334 and TF1-167, and found some to be signifĳicant and others not to be so. In its view, Kamara had not established any error in the Trial Chamber’s assessment of the credibility of the witnesses in question.212

2. Discussion (a) The Trial Chamber’s Approach to Accomplice Evidence 127. The Trial Chamber in paragraph 125 of its Judgment states that “none of these Prosecution witnesses has been charged with any crimes and their evidence cannot, therefore, be described as ‘accomplice evidence.’”213 The jurisprudence of the international criminal tribunals demonstrates that a witness facing criminal charges based on the same allegations as the accused may be considered an accomplice under the law. However, there is no requirement that in order to qualify as an accomplice, a witness must have been charged with a specifĳic offfence. The Trial Chamber, therefore, erred in fĳinding that the witnesses of the Prosecution were not accomplices simply because they were not charged with any criminal offfence. 128. The next issue for the Appeals Chamber’s determination is whether the Trial Chamber’s error invalidated its decision. If after evaluation of evidence of an accomplice the Trial Chamber comes to the conclusion that the witness is nonetheless credible and his evidence reliable, the Trial Chamber can rely on it to enter a conviction. The Appeals Chamber is of the opinion that in assessing the reliability of accomplice evidence, the main consideration for the Trial Chamber should be whether or not the accomplice has an ulterior motive to testify as he did.

209 Kamara Appeal Brief, para. 238. 210 Prosecution Response Brief, para. 4.41. 211 Ibid., at para. 4.57. 212 Prosecution Response Brief, para. 4.65. 213 AFRC Trial Judgment, para. 125. 1864 part iv

129. Whilst it is safe for a Trial Chamber to look for corroboration in such circumstances, it may convict on the basis of the evidence of a single witness, even an accomplice, provided such evidence is viewed with caution. In considering the credibility of certain Prosecution witnesses, the Trial Chamber noted that: “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, or in domestic crimes, or that they were informants to the police, or admitted taking drugs. The Brima Defence specifĳically 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. 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. Hence, the mere suggestion that a witness might be implicated in the commission of crimes is insufffĳicient for the Trial Chamber to discard that witness’s testimony.”214 130. With respect to the specifĳic allegation that certain witnesses might have been induced to testify against the Appellant, the Trial Chamber held that: “The Trial Chamber is satisfĳied 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… Accordingly, the Trial Chamber has not given undue weight to these alleged ‘incentives’ when assessing the credibility of the witnesses in question.”215 131. The Appeals Chamber is of the opinion that even though the Trial Chamber did not say that prosecution witnesses TF1-334, TF1-184 and TF1-167 (George Johnson) were accomplices, the Trial Chamber was mindful of Kamara’s allegations that these witnesses may have been involved in criminal conduct or otherwise have reason to give false testimony. 132. For example, in addressing the issue of the credibility of witness TF1-334, the Trial Chamber noted that “[t]he witness revealed that he had sought and received an assurance from the Offfĳice of the Prosecutor that he would not be prosecuted for any crimes he had committed.”216 The Trial Chamber concluded, however, that he was a credible and reliable witness, that his evidence was consistent, that it was corroborated by the evidence of other witnesses, and that any discrepancies were minor.217 133. Similarly, the Trial Chamber noted that witness TF1-184 “was one of SAJ Musa’s closest associates and that he believed that the Accused Brima deliberately

214 Ibid., at paras. 124–125. 215 Ibid., at paras. 128–130. 216 Ibid., at para. 358. 217 Ibid., at para. 359. judgments 1865 killed SAJ Musa at Benguema because he wanted to regain command over AFRC troops.”218 The Trial Chamber concluded that there were no signifĳicant inconsistencies in witness TF1-184’s evidence, that he was not shaken during cross- examination and that his evidence was corroborated by the evidence of other witnesses.219 In considering the evidence of witness TF1-167, the Trial Chamber stated that it had “considered the objections raised by the Defence to the credibility and reliability of George Johnson,”220 and concluded that his evidence was generally credible, and that he presented a truthful demeanour.221 134. In efffect, the Trial Chamber carried out a detailed and careful analysis of the evidence of all the aforementioned witnesses222 and looked for corroboration.223 The Appeals Chamber concludes that even though the Trial Chamber erred in not characterising the evidence of witnesses TF1-334, TF1-184 and TF1-167 as accomplice evidence, basing its decision on the fact that they had not been indicted for their alleged role in the crimes charged against the Appellant,224 it did, in fact, carefully consider the evidence of each witness and assessed their credibility in light of the totality of the evidence before it. 135. For these reasons, the Appeals Chamber has come to the conclusion that neither Kamara nor Brima has shown that this error invalidates the judgment so as to warrant its intervention. 136. Therefore Ground Ten of Brima’s Appeal and Ground Eight of Kamara’s Appeal are untenable. (b) Evaluation of the Evidence of Prosecution Witnesses 137. Kamara submits that there were discrepancies in the evidence of several prosecution witnesses with respect to events for which the Trial Chamber found him guilty and submits that the Trial Chamber failed to resolve these inconsistencies or to give a reasoned decision why it preferred one account over the other. 138. Kamara states without giving particulars, that there were signifĳicant inconsistencies in the testimony of Prosecution witness TF1-153. The Appeals Chamber reiterates that an appellant must make his submissions clearly and logically, and must support allegations of error with precise references to the trial judgment or other material that support his appeal. The Appeals Chamber will not consider

218 Ibid., at para. 362. 219 Ibid., at para. 363. 220 Ibid., at para. 370. 221 Ibid., at para. 370. 222 Ibid., at paras. 356–371. 223 Ibid., at paras. 359, 362. 224 Ibid., at para. 125. 1866 part iv submissions which are obscure, contradictory, vague or sufffer from formal or other defĳiciencies.225 139. As Kamara has not referred to any particular instance of error in the Trial Chamber’s evaluation of the witness’ evidence or referred to any error in the Trial Chamber’s evaluation of evidence, this argument fails. 140. With respect to the Trial Chamber’s fĳinding that Kamara bears individual criminal responsibility under Article 6(3) for the actions of AFRC troops in Kono District, he argues that there were contradictions in the evidence of Prosecution witnesses TF1-334 and TF1-167, in that whilst witness TF1-334 gave evidence that Kamara was the one who promoted Savage, the evidence of witness TF1-167 (George Johnson) was to the efffect that Savage was appointed to the position of Lieutenant by Denis Mingo (a.k.a. Superman), a senior RUF Commander. 141. The Trial Chamber’s conclusion that Kamara exercised efffective control over Savage was based on its consideration of all the evidence before it, including evidence that Savage was subordinate to Kamara and reported to him, that Kamara supervised the activities of Savage, and that Kamara was present in Tombodu at the time when that town was under Savage’s control.226 As such, the Trial Chamber’s fĳinding that Kamara bears individual criminal responsibility under Article 6(3) for the crimes committed by Savage was not based solely on evidence of who appointed or promoted Savage. Kamara has not demonstrated that the alleged discrepancy in the evidence of Prosecution witnesses TF1-334 and TF1-167 about who appointed or promoted Savage afffected the Trial Chamber’s fĳinding that Kamara bears individual criminal responsibility under Article 6(3) for the crimes committed in Kono District. 142. Kamara also submits that the Trial Chamber’s fĳinding that he was liable under Article 6(1) for ordering and under Article 6(3) as a superior for the killing of fĳive young girls in Karina, was based on inconsistent testimony of witnesses TF1-334 and TF1-167.227 Witness TF1-334 testifĳied that he, Bazzy (i.e. Kamara), and Bazzy’s Chief Security Offfĳicer (“CSO”) locked fĳive young girls inside a house in Karina and burnt them alive.228 Witness TF1-167 testifĳied that while in Karina with Kamara and Eddie Williams (a.k.a. “MAF”), Eddie Williams went into the house, wrapped people in carpets of the house, drew fuel from a Mercedes Benz and set the house on fĳire.229

225 Vasiljević Appeal Judgment, para. 12; Kunarac. Appeal Judgment, para. 47; Kajelijeli Appeal Judgment, para. 7. 226 AFRC Trial Judgment, para. 1884. 227 Kamara Appeal Brief, para. 232. 228 Transcript, TF1-334, 23 May 2005, pp. 65–67. 229 Transcript, TF1-167, 15 September 2005, pp. 54–56. judgments 1867

143. With respect to the issue of the alleged discrepancy in the evidence of witnesses TF1-334 and TF1-167, the Trial Chamber found in its Judgment: (i) at paragraph 887, “[i]n the presence of Witness TF1-334, the Appellant Kamara and two other “juntas” locked fĳive young girls into a house and subsequently set it ablaze. The fĳive girls were burnt alive.”230 (ii) at paragraph 890, “[a] certain Eddie Williams, a.k.a. ‘Maf,’ wrapped an unknown number of people in a carpet inside a house and thereafter set the house on fĳire. The people were burnt alive. The Appellant Kamara was watching from outside the house, together with witness George Johnson and several personal security guards of the Appellant Kamara.”231 It may reasonably be inferred from these fĳindings that the Trial Chamber considered these witnesses to have been testifying about two diffferent incidents. Kamara has not shown that the Trial Chamber erred in the above fĳindings. 144. With respect to the killings at Fourah Bay for which Kamara was found liable for aiding and abetting under Article 6(1), he submits that Prosecution witnesses TF1-334 and TF1-184 gave conflicting evidence about whether it was Brima or Kamara who ordered the attack, the person who commanded the troops during the attack, and those who participated in the attack. The Trial Chamber considered the evidence of witnesses TF1-334, TF1-184 and TF1-167 relating to the attack on Fourah Bay and concluded 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.”232 The Appeals Chamber agrees with this conclusion. 145. Kamara also argues that the Trial Chamber erred in relying “exclusively” on Prosecution witnesses TF1-334, TF1-184 and TF1-167233 and submits that the Trial Chamber should have assessed the credibility of these witnesses in light of the entire record of the case and considered whether there was another reasonable explanation of the evidence other than a fĳinding of guilt against him.234 In Ground Eleven of his Appeal, Brima adopts this aspect of Kamara’s submissions and

230 AFRC Trial Judgment, para. 887. 231 Ibid., at para. 890. 232 Ibid., at para. 924. 233 Kamara Appeal Brief, para. 230. 234 Ibid., at para. 237. 1868 part iv further submits that the Trial Chamber erred in relying disproportionately on two Prosecution witnesses i.e. TF1-334 and TF1-167. 146. A Trial Chamber must look at the totality of the evidence on record in evaluating the credibility of a witness. A party who alleges on appeal that a Trial Chamber has made a fĳinding as to the credibility of a witness without considering the totality of the evidence on record must show clearly that such error occurred. 147. The Appeals Chamber opines there is no bar to the Trial Chamber relying on a limited number of witnesses or even a single witness, provided it took into consideration all the evidence on the record. Kamara and Brima have not demonstrated such error on behalf of the Trial Chamber. 148. Based on all the reasons given above, the Appeals Chamber has come to the conclusion that Ground Eight of Kamara’s Appeal as well as Grounds Ten and Eleven of Brima’s Grounds of Appeal must fail. C. Kanu’s Third Ground of Appeal: Evaluation of Defence Evidence 1. Submissions of the Parties 149. In Ground Three of his Appeal, Kanu alleges that the Trial Chamber erred in law and fact in its evaluation of the evidence before it. He submits that the Trial Chamber failed to assess objectively the evidence of Defence witnesses as against that of the Prosecution witnesses235 and generally preferred and gave credit to Defence evidence only “where it coincided with that of the Prosecution or supported an adverse fĳinding to the Defence.”236 He further submits that the Trial Chamber failed to explain adequately discrepancies and internal contradictions in the evidence of Prosecution witnesses especially TF1-334, Gibril Massaquoi and George Johnson, as well as discrepancies between their diffferent accounts.237 150. The Prosecution responds that contrary to Kanu’s submissions, the Trial Chamber properly evaluated the evidence of both Prosecution and Defence witnesses and “that it did not slavishly accept all the evidence” of the Prosecution witnesses. The Prosecution further submits that the Trial Chamber did explain its evaluation of the evidence and provided reasons for accepting or rejecting the evidence of witnesses.238

2. Discussion 151. Kanu’s Third Ground of Appeal, as in Grounds Ten and Eleven of Brima’s Appeal, and Ground Eight of Kamara’s Appeal, challenges the Trial Chamber’s

235 Kanu Appeal Brief, para. 3.1. 236 Ibid., at para. 3.2. 237 Ibid., at paras. 3.3–3.9. 238 Prosecution Response Brief, paras. 4.31–4.32. judgments 1869 evaluation of the evidence and its fĳindings of fact. Kanu cites several instances in the Trial Judgment in support of his submission that the Trial Chamber failed to assess objectively the evidence of Defence witnesses as against that of Prosecu- tion witnesses.239 However, a review of the Judgment indicates that in arriving at its factual fĳindings and contrary to Kanu’s submissions, the Trial Chamber properly evaluated the evidence of both Prosecution and Defence witnesses taking the entire trial record into account.240 Furthermore, the Trial Chamber gave the reasons why it preferred or rejected certain evidence.241 152. Kanu has not established that the Trial Chamber erred in its evaluation of the evidence of the witnesses or that its evaluation was unreasonable. His submission that the Trial Chamber tended to prefer the evidence of Prosecution witnesses, therefore, lacks merit. 153. With respect to Kanu’s submission that the Trial Chamber attached less weight to the evidence of Defence witnesses because that evidence had not been put to the Prosecution witnesses in cross-examination, the Appeals Chamber notes that the Trial Chamber did take into consideration the fact that the Rules of the Special Court do not oblige a party to put its case to a witness.242 The Trial Chamber considered that it would not be in the interests of justice to set aside the relevant Defence testimony, but rather proceeded to take this factor into account in assessing the weight to be attached to such evidence. The Appeals Chamber opines that the Trial Chamber’s approach was in conformity with the Rules, which give it a discretion to apply the rules of evidence which best favour a fair determination of the matter before it.243 154. Kanu submits that the Trial Chamber failed to examine thoroughly the evidence of Prosecution witnesses TF1-033, TF1-334 and George Johnson, and to give sufffĳicient reasons why it proceeded to accept their evidence in spite of material

239 Kanu Appeal Brief, paras. 3.2, 3.11–3.13. 240 AFRC Trial Judgment, paras. 809, 828, 843, 859, 867, 882, 901, 954, 1200, 1221, 1288, 1336, 1353, 1391, 1405, 1412, 1420. 241 Ibid., at paras. 356–377. 242 Ibid., at paras. 132–133. The Trial Chamber found that “[i]n contrast to its ICTY and ICTY counterparts, the Rules of the Special Court do not oblige a Party to put its case to a witness. As claimed by the Prosecution, the Defence did lead evidence in the Defence case which was not put to Prosecution witnesses in cross-examination.… 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 benefĳit of observing their reactions.” ICTY Rule 90(H)(ii) and ICTR Rule 90(G)(ii) provide that “[i]n the cross-examination of a witness who is able to give evidence relevant to the case for the cross-examining party, counsel shall put to that witness the nature of the case of the party for whom that counsel appears which is in contradiction to the evidence given by the witness.” 243 Rule 89(B). 1870 part iv omissions and inconsistencies in their separate accounts. The Appeals Chamber reiterates that the Trial Chamber has a discretion to determine the weight to be given to discrepancies between a witness’ testimony and his prior statements. It is for the Trial Chamber to determine whether discrepancies discredit a witness’ testimony and, when faced with competing versions of events, to determine which one is more credible. 155. With respect to Kanu’s submissions regarding Prosecution witness George Johnson, the mere fact that the Trial Chamber found his evidence relating to certain events to be unreliable does not warrant dismissal of his entire testimony. The same reasoning applies to the Appellant’s submission regarding Prosecution witness TF1-033. The Trial Chamber after evaluating that witness’ evidence had concluded that: “While the witness appears on occasion to have exaggerated fĳigures 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.”244 156. Kanu also submits that Prosecution witness TF1-033 did not mention the stay of the AFRC troops in Mansofĳinia, and that this was a signifĳicant omission on the part of the witness given that Mansofĳinia was the location where the AFRC troops restructured and reorganised for the advance to Freetown. The Trial Chamber noted that witness TF1-033 testifĳied that AFRC troops were restructured at Yaya instead of at Mansofĳinia, and that the fĳirst stop of the troops after Yaya was Yifffĳin.245 The Trial Chamber also observed that witness TF1-334 testifĳied that the fĳirst stop of the troops after Mansofĳinia was at a village called “Yayah” and that witness George Johnson testifĳied that “Yarya” was one of the villages the troops passed through on their way to Mansofĳinia.246 157. The Trial Chamber concluded that the reason for this inconsistency was that witness TF1-033’s recollection of the location was mistaken, but that nonetheless his evidence generally corroborated that of witnesses TF1-334 and George Johnson. Furthermore, the Trial Chamber reasoned that its conclusion was supported by the fact that witness TF1-033 had also been confused in relation to the hometown of the Appellant Brima. The Appeals Chamber considers that it was reasonable for the Trial Chamber to arrive at this conclusion. The evidence of the three Prosecution witnesses in question i.e. TF1-033, TF1-334 and George Johnson on the troop restructure generally corroborated each other, and all of them mentioned a village called “Yarya” as the place at which the AFRC stopped either on

244 AFRC Trial Judgment, para. 366. 245 Ibid., at para. 584. 246 Ibid., at para. 584. judgments 1871 the journey to Mansofĳinia, or during the advance to Freetown.247 The alleged inconsistencies in the witnesses’ accounts were therefore not so signifĳicant as to warrant a diffferent factual fĳinding by the Trial Chamber. 158. With respect to the evidence of Prosecution witness Gibril Massaquoi, the Trial Chamber observed that there were internal discrepancies in his evidence, as well as discrepancies between his evidence and that of TF1-184 regarding events at State House.248 The Trial Chamber nonetheless concluded that it was “satisfĳied that witnesses Gibril Massaquoi and TF1-184 describe the same incident, as their accounts are substantially similar and over six years passed between the events 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 diffferent point in time and described the incident from their various perspectives.”249 159. The Appeals Chamber is of the opinion that the Trial Chamber gave a reasonable explanation for the discrepancies in the witness’s evidence. Kanu has not demonstrated any reason why the Appeals Chamber should interfere with the Trial Chamber’s fĳinding. 160. For the foregoing reasons, Kanu’s Third Ground of Appeal fails.

D. Kanu’s Fourth Ground of Appeal: Evidence of Accomplice Witnesses 1. Submissions of the Parties 161. Under his Fourth Ground of Appeal, Kanu challenges the Trial Chamber’s evaluation of the credibility of Prosecution witnesses TF1-334, TF1-167 (George Johnson), TF1-184, TF1-153 and Gibril Massaquoi. He makes submissions similar to those made by Kamara in Ground Eight of his Appeal and submits that because these witnesses were co-perpetrators of the crimes for which the Appellants were convicted, the Trial Chamber ought to have viewed their evidence with particular caution as has been the practice in the international tribunals, especially where such evidence was uncorroborated. In particular, he submits that the Trial Chamber erred in law by failing to classify these witnesses as accomplices based on the fact that they had not been charged with any crimes.250 162. In response, the Prosecution adopts the submissions it made in response to Brima’s Tenth and Kamara’s Eighth Grounds of Appeal, insofar as they relate to the

247 Transcript, TF1-033, 11 July 2005, pp. 13-15; Transcript, TF1-334, 23 May 2005, p. 39; Transcript, George Johnson, 15 September 2005, p. 44. 248 AFRC Trial Judgment, paras. 907–909. 249 Ibid., at para. 910. 250 Kanu Appeal Brief, para. 4.3. 1872 part iv evidence of accomplice witnesses.251 The Prosecution maintains that the Trial Chamber had correctly instructed itself on the appropriate legal standards applicable to accomplice evidence.252

2. Discussion 163. In view of the conclusion the Appeals Chamber came to on similar submissions made in respect of Ground Eight of Kamara’s Appeal as well as Grounds Ten and Eleven of Brima’s Appeal, it is not necessary to discuss these submissions afresh. 164. It is sufffĳicient to state that for the reasons already given in that conclusion, this Ground must also fail.

V. The Prosecution’s Appeal

A. Prosecution’s First and Third Grounds of Appeal: The “Bombali-Freetown Campaign” and Kamara’s Alleged Responsibility under Article 6(1) for Crimes Committed in Port Loko District 165. In its First Ground of Appeal, the Prosecution alleges the Trial Chamber made numerous legal and factual errors in failing to fĳind the Appellants individually responsible, pursuant to Article 6(1) of the Statute for planning, instigating, ordering, or otherwise aiding and abetting, and pursuant to Article 6(3), for all crimes committed in Bombali District, Freetown and other parts of the Western Area during the so-called “Bombali-Freetown Campaign.”253 It submits that the “Bombali-Freetown Campaign” constituted a “single planned and systematic campaign” that originated at a planning meeting in Koinadugu District in April or May 1998 and continued in Freetown and the subsequent retreat and regrouping of the AFRC combatants in the Western Area.254 166. The Prosecution alleges the Trial Chamber erred in law in that: (i) The Trial Chamber adopted a compartmentalized or “myopic” approach to the evidence; (ii) It relied upon direct evidence and discounted circumstantial evidence; (iii) It failed to consider that a single act could cause multiple crimes;

251 Prosecution Response Brief, para. 4.37. 252 Ibid., at para. 4.41. 253 Prosecution Appeal Brief, para. 15. 254 Ibid., at paras. 16, 19, 22. judgments 1873

(iv) It failed to appreciate the legal signifĳicance of conduct of the Appellants; (v) It erroneously withheld fĳindings on multiple modes of responsibility under Article 6(1) for each crime; and (vi) It failed to consider whether the three Appellants bear Article 6(3) responsibility for the crimes for which they were convicted under Article 6(1). (vii) The Appeals Chamber will consider each of these arguments in turn. 167. The Third Ground of the Prosecution’s Appeal alleges both a legal and a factual error on the part of the Trial Chamber in fĳinding that the Prosecution did not adduce any evidence and consequently did not prove that Kamara was individually responsible under Article 6(1) of the Statute for any of the crimes committed in Port Loko District. Most of the arguments presented by the Prosecution concern the Trial Chamber’s factual fĳindings in respect of the following crimes that were committed in Port Loko District (hereinafter the “Port Loko District crimes”): (i) Unlawful killings in Manaarma for which Kamara was found individually responsible under Article 6(3) of the Statute; (ii) Sexual slavery; and (iii) Acts of terror and collective punishment in respect of (i) and (ii) above. 168. Grounds One and Three of the Prosecution’s Grounds of Appeal address certain legal and factual issues, namely: (i) that the Trial Chamber erred in law and in fact in not fĳinding the Appellant individually responsible under both Articles 6(1) and 6(3) of the Statute for all crimes that the Trial Chamber found to have been committed in Bombali District, Freetown and other parts of the Western Area; and (ii) that it erred in law and in fact in fĳinding that the Prosecution did not adduce any evidence that Kamara committed, ordered, planned, instigated or otherwise aided and abetted any other crimes committed in the Port Loko District and that the Prosecution did not prove any of the modes of individual responsibility against Kamara for the crimes committed in Port Loko District. 169. However, as the Appellants have been convicted and sentenced to terms of imprisonment of fĳifty (50) years and forty-fĳive (45) years for crimes committed under Article 6(1) or Article 6(3) of the Statute in Bombali District and in the Western Area, the Appeals Chamber is of the opinion, taking all the circumstances into consideration, particularly having regard to the length of the sentences imposed, that it becomes an academic exercise and also pointless to adjudicate 1874 part iv further on minute details raised in Grounds One and Three of the Prosecution’s Appeal.

B. Prosecution’s Fifth Ground of Appeal: The “Enslavement Crimes” as Acts of Terror and Collective Punishment 1. Trial Chamber Findings 170. The Trial Chamber found all three Appellants guilty of the crime “acts of terrorism” (Count 1 of the Indictment)255 and guilty of the crime ‘collective punishment’ (Count 2 of the Indictment).256 The evidence relied upon by the Trial Chamber in convicting the Appellants excluded evidence relating to the crimes of recruitment of child soldiers; abductions and forced labour and sexual slavery (the three “enslavement crimes”). According to the Trial Chamber, evidence of the three enslavement crimes did not in the particular factual context of the conflict in Sierra Leone satisfy the elements of the crimes of ‘acts of terrorism’ or ‘collective punishments.’257

2. Submissions of the Parties 171. In its Fifth Ground of Appeal the Prosecution complains in substance that in the particular factual context of the case the Trial Chamber erred in law in holding that the three enslavement crimes were not acts of terrorism and also were not collective punishments.

3. Discussion 172. The Appeals Chamber is of the opinion that the Prosecution’s attempt to search for further acts of terrorism by adding the three enslavement crimes to this list is an unnecessary exercise since the Appellants have already been convicted of acts of terrorism and an adequate sentence has been imposed. 173. The Appeals Chamber further fĳinds the Prosecution’s submissions regarding the crime of collective punishments to be imprecise and without merit. The Prosecution failed to demonstrate adequately how the Trial Chamber either erred in law, invalidating a decision or erred in fact, occasioning a miscarriage of justice. 174. The Appeals Chamber exercises its discretion not to entertain the Prosecution’s Fifth Ground of Appeal and therefore it is dismissed in its entirety.

255 AFRC Trial Judgment, paras. 1633, 2113, 2117, 2121. 256 Ibid., at paras. 1634, 2113, 2117, 2121. 257 Ibid., at paras. 1450 (relating to recruitment of child soldiers); 1454 (relating to abductions and forced labour); 1459 (relating to sexual slavery). judgments 1875

C. Prosecution’s Seventh Ground of Appeal: Forced Marriage 1. The Trial Chamber’s Findings and Submissions of the Parties 175. Under its Seventh Ground of Appeal, the Prosecution challenges the Trial Chamber’s dismissal of Count 8 of the Indictment, which charged Brima, Kamara and Kanu with the crime of “Other Inhumane Acts” (forced marriage), punishable under Article 2.i of the Statute. 176. In dismissing Count 8 for redundancy, the Trial Chamber found that Article 2.i of the Statute (“Other Inhumane Acts”) must be restrictively interpreted to exclude crimes of a sexual nature, because Article 2.g of the Statute, which encompasses “[r]ape, sexual slavery, enforced prostitution, forced pregnancy and any other form of sexual violence,” exhaustively enumerates sexual crimes.258 The Trial Chamber found that the Prosecution did not adduce any evidence that forced marriage was a non-sexual crime; that the Prosecution evidence with respect to forced marriages was completely subsumed in 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.”259 The Trial Chamber also found that use of the term “wife” by the perpetrator signifĳied an intention to exercise ownership over the victim rather than to assume a marital or quasi-marital status with the victim.260 177. The Prosecution argues that a majority of the Trial Chamber (Justice Doherty dissenting) made three distinct errors of law and fact by fĳinding that: (i) the residual category of crimes against humanity “Other Inhumane Acts” under Article 2.i of the Statute should be confĳined to acts of a non-sexual nature;261 (ii) that the evidence adduced by the Prosecution was not 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; and (iii) in dismissing Count 8 (forced marriage as “Other Inhumane Acts”) for redundancy on the ground that the evidence adduced by the Prosecution is completely subsumed in 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.”262

258 Ibid., at para. 697 (emphasis added). 259 Ibid., at para. 713. 260 Ibid., at para. 711. 261 Prosecution Appeal Brief, para. 590. 262 Ibid., at para. 587. 1876 part iv

178. The Prosecution also asserts that forced marriage is distinct from the crime against humanity of sexual slavery as forced marriage “consists of words or other conduct intended to confer a status of marriage by force or threat of force … with the intention of conferring the status of marriage.”263 Further, the Prosecution contends that forced marriage essentially involves a “forced conjugal association by the perpetrator over the victim” and is not predominantly sexual as victims of forced marriage need not necessarily be subject to non-consensual sex.264 It further argues that the imposition of a forced conjugal association is as grave as the other crimes against humanity such as imprisonment, causing great sufffering to its victims.265 Therefore, the Prosecution contends that forced marriage amounts to an “Other Inhumane Act” under Article 2.i of the Statute and requests that the Appeals Chamber enter convictions for all three Appellants under Count 8 for “Other Inhumane Acts.” 179. Brima and Kamara argue that the Trial Chamber was correct in dismissing Count 8 for redundancy as the “alleged crimes of forced marriage” are subsumed in the crime of sexual slavery.266 Furthermore, they assert that even if the Trial Chamber’s fĳinding in this regard is incorrect, any alleged crime of forced marriage should have been charged under Article 2.g of the Statute as “any other form of sexual violence,” rather than as “Other Inhumane Acts” under Article 2.i of the Statute.267 In support of this argument, Brima and Kanu submit that the category of “Other Inhumane Acts” under Article 2.i of the Statute only applies to acts of a non-sexual nature.268 In addition to the specifĳic crimes of a sexual nature listed in Article 2.g, that provision has an in-built residual category, “any other form of sexual violence” which includes crimes such as forced marriage.269 Thus, Article 2.g of the Statute is broad and intended to cover not only crimes which are sexual in a physical sense (such as rape), but also gender-based crimes such as forced marriage. Accordingly, Brima and Kamara urge the Appeals Chamber to dismiss this Ground of the Prosecution’s Appeal. 180. Kanu agrees with the Prosecution’s submission that the Trial Chamber erred in fĳinding that the offfence of “Other Inhumane Acts” must be restrictively interpreted and limited to non-sexual crimes.270 However, Kanu adds that this legal error does not invalidate the Trial Chamber’s dismissal of Count 8 because

263 Ibid., at para. 612. 264 Ibid., at paras. 612, 613, 614, 615. 265 Ibid., at paras. 614, 617, 621. 266 Brima Response Brief, para. 118; Kamara Response Brief, para. 164. The Appeals Chamber notes that Brima and Kamara have submitted identical responses to this Ground of Appeal. 267 Brima Response Brief, para. 118; Kamara Response Brief, para. 164. 268 Brima Response Brief, para. 119; Kamara Response Brief, para. 165. 269 Brima Response Brief, paras. 120, 124–125; Kamara Response Brief, paras. 166, 170–171. 270 Kanu Response Brief, para. 7.11. judgments 1877 the evidence led by the Prosecution to prove forced marriage failed to establish any conduct going beyond the elements of sexual slavery.271

2. Discussion 181. A preliminary point worthy of note is that the Prosecution may have misled the Trial Chamber by the manner in which forced marriage appeared to have been classifĳied in the Indictment. The Indictment classifĳies Count 8 “Other Inhumane Acts” along with Counts 6, 7 and 9 under the heading “Sexual Violence.” Under this heading in paragraphs 52 to 57, the Indictment alleges acts of forced marriages. This categorisation of forced marriages explain, but does not justify, the classifĳica- tion by the Trial Chamber of forced marriage as “sexual violence.” Notwithstanding the manner in which the Prosecution had classifĳied “Forced Marriage” in the Indictment and the submissions made by the Prosecution on this appeal which is inconsistent with such classifĳication, the Appeals Chamber will consider the submissions made as an issue of general importance that may enrich the jurisprudence of international criminal law. 182. The fĳirst issue for the Appeals Chamber’s determination relates to the scope of “Other Inhumane Acts” under Article 2.i of the Statute. The Trial Chamber concluded that in light of the exhaustive categorisation of sexual crimes under Article 2.g, the offfence of “Other Inhumane Acts” must be restrictively interpreted so as to exclude offfences of a sexual nature.272 The Appeals Chamber considers that it is implicit in the Trial Chamber’s fĳinding that it considered forced marriage as a sexual crime. 183. In order to assess the correctness of the Trial Chamber’s fĳinding, regard must be given to the objective of the prohibition of “Other Inhumane Acts” in international criminal law. First introduced under Article 6.c of the Nuremberg Charter, the crime of “Other Inhumane Acts” is intended to be a residual provision so as to punish criminal acts not specifĳically recognised as crimes against humanity, but which, in context, are of comparable gravity to the listed crimes against humanity.273 It is therefore inclusive in nature, intended to avoid unduly restricting the Statute’s application to crimes against humanity.274 The prohibition

271 Ibid., at para. 7.18. 272 AFRC Trial Judgment, para. 697. 273 Kupreškić Trial Judgment, para. 563. The category of “Other Inhumane Act” was included in Article 6.c of the Nuremburg Charter to provide for any loophole left open by other offfences not specifĳically mentioned. It was deliberately designed as a residual category as it was felt undesirable for this category to be exhaustively enumerated. An exhaustive list would merely create opportunities for evasion of the letter of the prohibition. See also Stakić Appeal Judgment, para. 315; Blagojević Trial Judgment, para. 625; Rutaganda Trial Judgment, para. 77; Kayishema Trial Judgment, para. 149. 274 Blagojević Trial Judgment, para. 625; Akayesu Trial Judgment, para. 585 (“The categories of crimes against humanity are set out in Article 3, this category is not exhaustive. Any act which is 1878 part iv against “Other Inhumane Acts” is now included in a large number of international legal instruments and forms part of customary international law.275 184. The jurisprudence of the international tribunals shows that a wide range of criminal acts, including sexual crimes, have been recognised as “Other Inhumane Acts.” These include forcible transfer,276 sexual and physical violence perpetrated upon dead human bodies,277 other serious physical and mental injury,278 forced undressing of women and marching them in public,279 forcing women to perform exercises naked,280 and forced disappearance, beatings, torture, sexual violence, humiliation, harassment, psychological abuse, and confĳinement in inhumane conditions.281 Case law at these tribunals further demonstrates that this category has been used to punish a series of violent acts that may vary depending upon the context.282 In efffect, the determination of whether an alleged act qualifĳies as an “Other Inhumane Act” must be made on a case-by-case basis taking into account the nature of the alleged act or omission, the context in which it took place, the personal circumstances of the victims including age, sex, health, and the physical, mental and moral efffects of the perpetrator’s conduct upon the victims.283 185. The Trial Chamber therefore erred in law by fĳinding that “Other Inhumane Acts” under Article 2.i must be restrictively interpreted. A tribunal must take care

inhumane in nature and character may constitute a crime against humanity, provided the other elements are met.”). 275 The crime of “Other Inhumane Acts” has been included in the following international legal instruments: Charter of the International Military Tribunal, Article 6.c; Charter of the International Military Tribunal for the Far East, Article 5.c; Control Council Law No. 10, Article II.c; Statute of the International Criminal Tribunal for the former Yugoslavia, Article 5.i; Statute of the International Criminal Tribunal for Rwanda, Article 3.i; Rome Statute of the International Criminal Court, Article 7.k. The crime of “Other Inhumane Acts” is also referred to in the 1996 ILC Draft Code of Crimes Against the Peace and Security of Mankind, Article 18.k. See also Stakić Appeal Judgment, para. 315; Blagojević Trial Judgment; Galić Trial Judgment; Čelebići Trial Judgment; Akayesu Trial Judgment; Tadić Trial Judgment. 276 Stakić Appeal Judgment, para. 317; Blagojević Trial Judgment, para. 629; Krstić Trial Judgment, para. 523. 277 Kajelijeli Trial Judgment, para. 936; Niyitegeka Trial Judgment, para. 465. 278 Naletilić Trial Judgment, para. 271; Vasiljević Trial Judgment, para. 239; Blaškić Trial Judgment, para. 239; Tadić Trial Judgment, paras. 730, 737, 744. 279 Akayesu Trial Judgment, para. 697. 280 Ibid., at para. 697. 281 Kvočka Trial Judgment, paras. 206–209. 282 See Kordić Trial Judgment, para. 800 (fĳinding that conditions varied from camp to camp but detained Muslims were used as human shields and were forced to dig trenches); Galić Trial Judgment, para. 599 (fĳinding that there was a coordinated and protracted campaign of sniping, artillery, and mortar attacks upon civilians); Tadić Trial Judgment, paras. 730, 737, 744 (fĳinding that there were several incidents of assaults upon and beating of prisoners at a camp) and Niyitegeka Trial Judgment, paras. 462, 465 (fĳinding that the accused was rejoicing when a victim was killed, decapitated, cas- trated and his skull was pierced with a spike). 283 Galić Trial Judgment para. 153; Vasiljević Trial Judgment, para. 235; Krnojelac Trial Judgment, para. 131; Čelebići Trial Judgment, para. 536; Kayishema Trial Judgment, paras. 150, 151. judgments 1879 not to adopt too restrictive an interpretation of the prohibition against “Other Inhumane Acts” which, as stated above, was intended to be a residual provision. At the same time, care must be taken not to make it too embracing as to make a surplusage of what has been expressly provided for, or to render the crime nebu- lous and incapable of concrete ascertainment. An over-broad interpretation will certainly infringe the rule requiring specifĳicity of criminal prohibitions. 186. Furthermore, the Appeals Chamber sees no reason why the so-called “exhaustive” listing of sexual crimes under Article 2.g of the Statute should foreclose the possibility of charging as “Other Inhumane Acts” crimes which may among others have a sexual or gender component.284 As an ICTY Trial Chamber has recognised, “[h]owever much care [was] taken in establishing a list of all the various forms of infliction, one would never be able to catch up with the imagination of future torturers who wish to satisfy their bestial instincts; and the more specifĳic and complete a list tries to be, the more restrictive it becomes.”285 The Trial Chamber therefore erred in fĳinding that Article 2.i of the Statute excludes sexual crimes. (a) The Nature of “Forced Marriage” in the Sierra Leone Conflict and its Distinction from Sexual Slavery 187. The Appeals Chamber recalls the Trial Chamber’s fĳindings that the evidence adduced by the Prosecution did not establish the elements of a non-sexual offfence of forced marriage independent of the crime of sexual slavery under Article 2.g of the Statute;286 and that the evidence is completely of the crime of sexual slavery, leaving no lacuna in the law that would necessitate a separate crime of forced marriage as an “Other Inhumane Act.”287 188. The Trial Chamber defĳined sexual slavery as the perpetrator’s exercising any or all of the powers attaching to the right of ownership over one or more persons by imposing on them a deprivation of liberty, and causing them to engage in one or more acts of a sexual nature.288 In fĳinding that the evidence of forced marriage

284 Statute, Article 2.g. See also Article 7.g of the ICC Statute which lists “Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity.” In contrast, Articles 3.g and 5.g of the ICTR and ICTY Statutes respectively only provide for ‘rape’ as a crime against humanity of a sexual nature. 285 Blaškić Trial Judgment, para. 237, citing with approval J. Pictet, Commentary on the 1st Geneva Convention of 12 August 1949, Geneva, 1952, p. 54. See also Kayishema Trial Judgment, para. 149. 286 AFRC Trial Judgment, para. 704. 287 Ibid., at para. 713. The Trial Chamber held that sexual slavery had the following elements: (i) The perpetrator exercised any or all of the powers attaching to the right of ownership over one or more persons, … or by imposing on them a similar deprivation of liberty; (ii) the perpetrator caused such person or persons to engage in one or more acts of a sexual nature; (iii) 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. AFRC Trial Judgment, para. 708. See also Rome Statute, Elements of Crimes, Article 7(1)(k). 288 AFRC Trial Judgment, para. 708. 1880 part iv was completely of the crime of sexual slavery, the Trial Chamber found that the relationship of the perpetrators to their “wives” was one of ownership, and that the use of the term “wife” was indicative of the perpetrator’s intent to exercise ownership rights over the victim.289 Implicitly, the Trial Chamber found that evidence of forced marriage was predominantly sexual in nature. 189. According to the Prosecution, the element that distinguishes forced marriage from other forms of sexual crimes is a “forced conjugal association by the perpetrator over the victim. It represents forcing a person into the appearance, the veneer of a conduct (i.e. marriage), by threat, physical assault or other coercion.”290 The Prosecution adds that while acts of forced marriage may in certain circumstances amount to sexual slavery, in practice they do not always involve the victim being subjected to non-consensual sex or even forced domestic labour.291 Therefore, the Prosecution contends that forced marriage is not a sexual crime. 190. The trial record contains ample evidence that the perpetrators of forced marriages intended to impose a forced conjugal association upon the victims rather than exercise an ownership interest and that forced marriage is not predominantly a sexual crime. There is substantial evidence in the Trial Judgment to establish that throughout the conflict in Sierra Leone, women and girls were systematically abducted from their homes and communities by troops belonging to the AFRC and compelled to serve as conjugal partners to AFRC soldiers.292 They were often abducted in circumstances of extreme violence,293 compelled to move along with the fĳighting forces from place to place,294 and coerced to perform a variety of conjugal duties including regular sexual intercourse, forced domestic labour such as cleaning and cooking for the “husband,” endure forced pregnancy, and to care for and bring up children of the “marriage.”295 In return, the rebel “husband” was expected to provide food, clothing and protection to his “wife,” including protection from rape by other men, acts he did not perform when he used a female for sexual purposes only.296 As the Trial Chamber found, the relative ben- efĳits that victims of forced marriage received from the perpetrators neither signi- fĳies consent to the forced conjugal association, nor does it vitiate the criminal

289 Ibid., at para. 711. In paragraph 697 of the AFRC Trial Judgment, the Trial Chamber found that “[i]n light of the exhaustive category of sexual crimes particularised in Article 2.g of the Statute, the offfence 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 afffront to human dignity.” 290 Prosecution Appeal Brief, para. 614. 291 Ibid., at para. 613. 292 AFRC Trial Judgment, paras. 711, 1079, 1084, 1088, 1103, 1108, 1121, 1130, 1165. 293 For example one witness was abducted as a ‘wife’ moments after her parents were killed in front of her. See AFRC Trial Judgment, paras. 1078, 1088. 294 AFRC Trial Judgment, paras. 1082, 1083, 1085, 1091, 1096, 1154, 1164, 1165. 295 Ibid., at paras. 1080, 1081, 1130, 1165. 296 Ibid., at paras. 1157, 1161. See also Doherty Partly Dissenting Opinion, paras. 48, 49. judgments 1881 nature of the perpetrator’s conduct given the environment of violence and coercion in which these events took place.297 191. The Trial Chamber fĳindings also demonstrate that these forced conjugal associations were often organised and supervised by members of the AFRC or civilians assigned by them to such tasks.298 A “wife” was exclusive to a rebel “husband,” and any transgression of this exclusivity such as unfaithfulness, was severely punished.299 A “wife” who did not perform the conjugal duties demanded of her was deemed disloyal and could face serious punishment under the AFRC disciplinary system, including beating and possibly death.300 192. In addition to the Trial Chamber’s fĳindings, other evidence in the trial record shows that the perpetrators intended to impose a forced conjugal association rather than exercise mere ownership over civilian women and girls. In particular, the Appeals Chamber notes the evidence and report of the Prosecution expert Mrs. Zainab Bangura which demonstrates the physical and psychological sufffering to which victims of forced marriage were subjected during the civil war in Sierra Leone. According to the Prosecution expert: “the most devastating efffect on women of the war was the phenomenon called ‘bush wife,’ rebel wife or jungle wife. This was a phenomenon adopted by rebels whereby young girls or women were captured or abducted and forcibly taken as wives … The use of the term ‘wife’ by the perpetrator was deliberate and strategic. The word ‘wife’ demonstrated a rebel’s control over a woman. His psychological manipulations of her feelings rendered her unable to deny him his wishes… By calling a woman ‘wife,’ the man or ‘husband’ openly staked his claim and she was not allowed to have sex with any other person. If she did, she would be deemed unfaithful and the penalty was severe beating or death. ‘Bush wives’ were expected to carry out all the functions of a wife and more … [S]he was expected to show undying loyalty to her husband for his protection and reward him with ‘love and afffection … ‘Bush wives’ were constantly sexually abused, physically battered during and after pregnancies, and psychologically terrorised by their husbands, who thereby demonstrated their control over their wives. Physically, most of these girls experienced miscarriages, and received no medical attention at the time … Some now experience diverse medical problems such as severe stomach pains … some have had their uterus removed; menstrual cycles are irregular; some were infected with sexually transmitted diseases and others tested HIV positive.”301 193. In light of all the evidence at trial, Judge Doherty, in her Partly Dissenting Opinion, expressed the view that forced marriage involves “the imposition, by

297 See AFRC Trial Judgment, paras. 1081, 1092. 298 Ibid., at para. 1115. 299 Ibid., at paras. 1122, 1139, 1161. 300 Ibid., at paras. 1138, 1141. 301 Sebutinde Separate Concurring Opinion, paras. 13, 15, quoting Prosecution Expert Report on Forced Marriage. 1882 part iv threat or physical force arising from the perpetrator’s words or other conduct, of a forced conjugal association by the perpetrator over the victim.”302 She further considered that this crime satisfĳied the elements of “Other Inhumane Acts” because victims were subjected to mental trauma by being labelled as rebel “wives”; further, they were stigmatised and found it difffĳicult to reintegrate into their communities. According to Judge Doherty, forced marriage qualifĳies as an “Other Inhumane Acts” causing mental and moral sufffering, which in the context of the Sierra Leone conflict, is of comparable seriousness to the other crimes against humanity listed in the Statute.303 194. Furthermore, the Appeals Chamber also notes that in their respective Concurring and Partly Dissenting Opinions, both Justice Sebutinde and Justice Doherty make a clear and convincing distinction between forced marriages in a war context and the peacetime practice of “arranged marriages” among certain traditional communities, noting that arranged marriages are not to be equated to or confused with forced marriage during armed conflict.304 Justice Sebutinde goes further to add, correctly in our view, that while traditionally arranged marriages involving minors violate certain international human rights norms such as the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW), forced marriages which involve the abduction and detention of women and girls and their use for sexual and other purposes is clearly criminal in nature.305 195. Based on the evidence on record, the Appeals Chamber fĳinds that no tribunal could reasonably have found that forced marriage was subsumed in the crime against humanity of sexual slavery. While forced marriage shares certain elements with sexual slavery such as non-consensual sex and deprivation of liberty, there are also distinguishing factors. First, forced marriage involves a perpetrator compelling a person by force or threat of force, through the words or conduct of the perpetrator or those associated with him, into a forced conjugal association with a another person resulting in great sufffering, or serious physical or mental injury on the part of the victim. Second, unlike sexual slavery, forced marriage implies a relationship of exclusivity between the “husband” and “wife,” which could lead to disciplinary consequences for breach of this exclusive arrangement. These distinctions imply that forced marriage is not predominantly a sexual

302 Doherty Partly Dissenting Opinion, para. 53. 303 Ibid., at paras. 48, 51 (stating that “[s]erious psychological and moral injury follows forced marriage. Women and girls are forced to associate with and in some cases live together with men whom they may fear or despise. Further, the label ‘wife’ may stigmatise the victims and lead to their rejection by their families and community, negatively impacting their ability to reintegrate into society and thereby prolonging their mental trauma.”). 304 Sebutinde Separate Concurring Opinion, paras. 10, 12; Doherty Partly Dissenting Opinion, para. 36. 305 Sebutinde Separate Concurring Opinion, para. 12. judgments 1883 crime. The Trial Chamber, therefore, erred in holding that the evidence of forced marriage is subsumed in the elements of sexual slavery. 196. In light of the distinctions between forced marriage and sexual slavery, the Appeals Chamber fĳinds that in the context of the Sierra Leone conflict, forced marriage describes a situation in which the perpetrator through his words or conduct, or those of someone for whose actions he is responsible, compels a person by force, threat of force, or coercion to serve as a conjugal partner resulting in severe sufffering, or physical, mental or psychological injury to the victim. (b) Does Forced Marriage Satisfy the Elements of “Other Inhumane Acts”? 197. The Prosecution submits that the crime charged under Count 8 is “Other Inhumane Acts,” which forms part of customary international law, and therefore, does not violate the principle of nullum crimen sine lege.306 Therefore, the Prosecution submits that the only question on appeal is whether forced marriage satisfĳies the elements of “Other Inhumane Acts.” The Prosecution argues that forced marriage amounts to an “Other Inhumane Act” and that the imposition of a forced conjugal association is as grave as the other crimes against humanity such as imprisonment, causing great sufffering to its victims.307 In particular, the Prosecution argues that the mere fact of forcibly requiring a member of the civilian population to remain in a conjugal association with one of the participants of a widespread or systematic attack directed against the civilian population is at least, of sufffĳicient gravity to make this conduct an “Other Inhumane Act.”308 198. The Appeals Chamber agrees with the Prosecution that the notion of “Other Inhumane Acts” contained in Article 2.i of the Statute forms part of customary international law.309 As noted above, it serves as a residual category designed to punish acts or omissions not specifĳically listed as crimes against humanity provided these acts or omissions meet the following requirements: (i) inflict great sufffering, or serious injury to body or to mental or physical health; (ii) are sufffĳiciently similar in gravity to the acts referred to in Article 2.a to Article 2.h of the Statute; and (iii) the perpetrator was aware of the factual circumstances that established the character of the gravity of the act.310 The acts must also satisfy the general chapeau requirements of crimes against humanity.

306 Prosecution Appeal Brief, paras. 602–604. 307 Ibid., at paras. 614, 617, 621. 308 Ibid., at para. 624. 309 Stakić Appeal Judgment, para. 315; Blagojević Trial Judgment, para. 624. 310 AFRC Trial Judgment, para. 698. 1884 part iv

199. The Appeals Chamber fĳinds that the evidence before the Trial Chamber established that victims of forced marriage endured physical injury by being subjected to repeated acts of rape and sexual violence, forced labour, corporal punishment, and deprivation of liberty. Many were psychologically traumatised by being forced to watch the killing or mutilation of close family members, before becoming “wives” to those who committed these atrocities and from being labelled rebel “wives” which resulted in them being ostracised from their communities. In cases where they became pregnant from the forced marriage, both they and their children sufffered long-term social stigmatisation. 200. In assessing the gravity of forced marriage in the Sierra Leone conflict, the Appeals Chamber has taken into account the nature of the perpetrators’ conduct especially the atmosphere of violence in which victims were abducted and the vulnerability of the women and girls especially those of a very young age. Many of the victims of forced marriage were children themselves. Similarly, the Appeals Chamber has considered the efffects of the perpetrators’ conduct on the physical, moral, and psychological health of the victims. The Appeals Chamber is fĳirmly of the view that acts of forced marriage were of similar gravity to several enumerated crimes against humanity including enslavement, imprisonment, torture, rape, sexual slavery and sexual violence. 201. The Appeals Chamber is also satisfĳied that in each case, the perpetrators intended to force a conjugal partnership upon the victims, and were aware that their conduct would cause serious sufffering or physical, mental or psychological injury to the victims. Considering the systematic and forcible abduction of the victims of forced marriage, and the prevailing environment of coercion and intimidation, the Appeals Chamber fĳinds that the perpetrators of these acts could not have been under any illusion that their conduct was not criminal. This conclusion is fortifĳied by the fact that the acts described as forced marriage may have involved the commission of one or more international crimes such as enslavement, imprisonment, rape, sexual slavery, abduction among others. 202. The Appeals Chamber has carefully given consideration to whether or not it would enter fresh convictions for “Other Inhumane Acts” (forced marriage). The Appeals Chamber is fully aware of the Prosecution’s submission that entering such convictions would reflect the full culpability of the Appellant. The Appeals Chamber is also aware that the Trial Chamber relied upon the evidence led in support of sexual slavery and forced marriage to enter convictions against the Appellants for “Outrages upon Personal Dignity” under Count 9 of the Indictment. Since “Outrages upon Personal Dignity” and “Other Inhumane Acts” have materially distinct elements (in the least, the former is a war crime, and the latter a crime against humanity) there is no bar to entering cumulative convictions for both offfences on the basis of the same facts. However, in this case the Appeals Chamber is inclined against entering such cumulative convictions. The Appeals Chamber is judgments 1885 convinced that society’s disapproval of the forceful abduction and use of women and girls as forced conjugal partners as part of a widespread or systematic attack against the civilian population, is adequately reflected by recognising that such conduct is criminal and that it constitutes an “Other Inhumane Act” capable of incurring individual criminal responsibility in international law. 203. The Appeals Chamber therefore grants Ground Seven of the Prosecution’s Appeal. D. Prosecution’s Eighth Ground of Appeal: Cumulative Convictions under Counts Ten and Eleven 204. The Prosecution argues that the Trial Chamber erred in deciding not to consider mutilations under Count 11 as well as under Count 10 because considering mutilations and beatings and ill-treatment under the same Count would have resulted in a duplicitous charge.311 The Prosecution submits that the convictions of the accused for mutilations as a war crime fail to recognise that acts of mutilation were also crimes against humanity, as they occurred as part of a widespread or systematic attack against the civilian population.312 The Prosecution further submits that mutilations, and acts of physical violence other than mutilations, are not separate crimes, but are diffferent ways of committing the war crime of violence to life, health and physical or mental well-being of persons, as well as the crime against humanity of “Other Inhumane Acts.” Therefore, the Prosecution argues that Counts 10 and 11 were not defectively pleaded because both forms of physical violence may properly be alleged in both counts without resulting in a duplicitous charge.313 205. As discussed above, the rule against duplicity prohibits the charging of two separate offfences in the same count.314 However, the Appeals Chamber notes that

311 Ibid., at para. 726; Prosecution Appeal Brief, para. 653. With respect to physical violence, the Indictment alleges that: Count 10: Violence to life, health and physical or mental well-being of persons, in particular mutilation, a VIOLATION OF ARTICLE 3 COMMON TO THE GENEVA CONVENTIONS AND OF ADDITIONAL PROTOCOL II, punishable under Article 3.a of the Statute; In addition, or in the alternative: Count 11: Other inhumane acts, a CRIME AGAINST HUMANITY, punishable under Article 2.i. of the Statute. In the Judgment the Trial Chamber notes that the paragraphs preceding Counts 10 and 11 allege that the acts of physical violence included mutilations (paras. 59, 61–64) and beatings and ill- treatment (para. 60). 312 Prosecution Appeal Brief, para. 652. 313 Ibid., at paras. 660, 663. 314 See supra, section III.D concerning the Prosecution’s Sixth Ground of Appeal regarding the Trial Chamber’s fĳinding of duplicity in Count 7. 1886 part iv

Count 11 charged only the offfence of “Other Inhumane Acts” as a crime against humanity, which was supported by material facts alleging mutilations as well as beatings and ill-treatment. Thus, Count 11 on its face is not duplicitous. The Appeals Chamber also notes the distinction between charging conduct and charging offfences. Article 2.i is a residual category which encompasses various forms of conduct. However, it is a single offfence. Therefore, the Appeals Chamber fĳinds that alleging multiple forms of conduct in the same count was not duplicitous because Count 11 only charged one offfence, namely “Other Inhumane Acts.”315 It follows that Count 11 would not have been duplicitous had the Trial Chamber considered evidence of both mutilations and beatings and ill-treatment. 206. However, the Appeals Chamber fĳinds that the Trial Chamber did not err in considering mutilations only under Count 10. The Appeals Chamber notes that Count 10, which alleges “violence to life, health and physical or mental well-being of persons, in particular mutilations,” is clearly supported by the paragraphs alleging mutilations. The allegations of beatings and ill-treatment could not have been used to support Count 10. The Indictment would therefore have been much clearer had the Prosecution limited the factual allegations in support of Count 10 to mutilations. Furthermore, the Prosecution’s intention to rely on acts of mutilation in support of Count 11 would have been much clearer had it separated the facts supporting this Count from those supporting Count 10. Consequently, the Prosecution’s combination of the material facts that support Counts 10 and 11 created a degree of ambiguity in the Indictment. In light of this ambiguity, it was within the discretion of the Trial Chamber to consider evidence of mutilations solely under Count 10. Thus, the Appeals Chamber rejects the Prosecution’s submission that the Trial Chamber erred in failing to consider evidence of mutilations under Count 11 as well as under Count 10. Ground Eight of the Prosecution’s Appeal is therefore dismissed.

315 The Appeals Chamber notes that in alleging multiple forms of conduct in the same count, Count 11 of this Indictment is in keeping with the construction of counts in the Indictments before the ICTY. A review of indictments before the ICTY reveals that charging multiple forms of conduct in the same count which alleges the commission of the single offfence of “Other Inhumane Acts” is an accepted practice. Count 2 of the Indictment in Kvočka et al., which charged “Other Inhumane Acts,” alleged murder, torture and beating, sexual assault and rape, harassment, humiliation and psychological abuse, and confĳinement of persons. Prosecutor v. Kvočka et al., IT-98-30/1, Amended Indictment, 26 October 2000. In addition, the factual allegations supporting Count 2 also supported Counts 1 and 3 which respectively charged persecutions and the war crime of outrages upon personal dignity. Ibid. The Tadić and Kupreškić Indictments similarly alleged multiple forms of conduct in the same Count which charged “Other Inhumane Acts.” Prosecutor v. Tadić, IT-94-1, Second Amended Indictment, 14 December 1995; Prosecutor v. Kupreškić, IT-95-15, First Amended Indictment, 9 February 1998. Furthermore, the Tadic and Kupreškić Indictments also support multiple counts with the same set of factual allegations. Ibid. The accused persons in these cases did not raise objections to the manner in which the Prosecution had pleaded “Other Inhumane Acts” and the Trial and Appeals Chambers did not fĳind that this manner of pleading was improper. judgments 1887

E. Prosecution’s Ninth Ground of Appeal: Cumulative Convictions 207. In its Ninth Ground of Appeal, the Prosecution argues that the Trial Chamber incorrectly stated and applied the law when it held that: “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. 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.”316 208. The Prosecution’s argument on this Ground is twofold. First, the Prosecution argues that the Trial Chamber erred in law by precluding itself, within its discretion, from entering a conviction under either Article 6(1) or Article 6(3) and then taking the other form of culpability into account during sentencing. Second, it argues that the Trial Chamber erred in law by failing to recognize that the bar on concurrent convictions under Articles 6(1) and 6(3) only applies when the convictions are based on the same facts. The Prosecution submits that the Trial Chamber should have entered convictions under Articles 6(1) and 6(3) where they were based on diffferent facts, even though they were pleaded in the same Count.317 209. If the Prosecution’s second argument is accepted, the Prosecution proposes a lengthy set of additional convictions under Article 6(3) for criminal acts for which the Trial Judgment found the Appellants were responsible but did not enter convictions.318 In summary, the Prosecution contends that, where multiple crimes are alleged within the same Count, the Trial Chamber should have examined each crime to determine whether the Appellants were guilty under Article 6(1), Article 6(3), or both. Only after doing so, could the Trial Chamber conclude whether to enter a conviction for specifĳic crimes under Article 6(1) or Article 6(3), and whether to consider the alternative mode of responsibility during sentencing. 210. Brima and Kamara – in nearly identical briefs in the relevant part – respond that “even though the contemplated Article 6(3) convictions might not have been reflected in the Trial Chamber’s Disposition, they were nonetheless, considered for sentencing purposes and reflect in the … global sentence imposed” as evidenced by the Trial Chamber’s statement that the sentences account “for the crimes for which [the accused are] responsible under Article 6(3).” Kanu similarly responds that the Sentencing Judgment adequately accounted for the Trial

316 AFRC Trial Judgment, para. 800. 317 Prosecution Appeal Brief, paras. 688–701. 318 According to the Prosecution, the Trial Chamber should not have entered a conviction under Article 6(1) or under Article 6(3) for the conduct listed in Appendix E to the Prosecution Appeal Brief. 1888 part iv

Chamber’s fĳinding of his Article 6(3) responsibility by considering it as an aggravating circumstance in the determination of his sentence.319 Consequently, according to each Appellant, it is clear that the Trial Chamber considered their Article 6(3) criminal responsibility for sentencing purposes, even if, in the words of Brima and Kamara, “it was not reflected in the Trial Chamber’s Disposition.”320 Kanu further argues that a conviction should be entered under Article 6(1) alone if either: (i) Article 6(1) and 6(3) responsibility are proved for diffferent acts alleged under a single Count; or (ii) Article 6(1) and 6(3) responsibility are proved for the same acts alleged under diffferent Counts.321 211. The question of law posed by the Prosecution in this Ground is whether the principle against cumulative convictions bars a Trial Chamber from entering a compound conviction under both Articles 6(1) and 6(3) for diffferent criminal conduct charged under the same Count of the Indictment. All parties look to a survey of the relevant case law in Prosecutor v. Orić for guidance.322 The Prosecution argues that the analysis in Orić only reaches to instances pertaining to alternative or cumulative modes of responsibility with regard to “the same principal crime on basically the same facts.”323 Kanu argues that the “consensus” opinion in the case law, including Orić, is that the Trial Chambers act within their discretion to determine whether to enter a conviction under Article 6(1) or 6(3) “as long as the ultimate penalty reflects the overall culpability of the Accused so that it is both just and appropriate.”324 212. Brima and Kamara argue that the only diffference between the present case and Orić is that in Orić, “the counts were diffferent and the facts the same, but in the present case the counts are the same the facts are diffferent.”325 Moreover, Kanu concedes that none of the case law to date “relat[es] to cumulative convictions on the same Count under Article 6(1) and Article 6(3) based on diff erent facts. All the cases on the point deal with the issue in the context of cumulative convictions based on the same facts.”326 This is true, in fact, because the problem of cumulative or concurrent convictions only arises in instances of cumulative charging: a practice in international criminal tribunals whereby the Prosecution

319 Brima Response Brief, para. 134; Kamara Response Brief, para. 180. 320 Kanu Response Brief, para. 9.7. 321 Ibid., at para. 135–136; Kamara Response Brief, paras. 181–182. 322 Orić Trial Judgment, paras. 342–343. 323 Prosecution Appeal Brief, para. 701. 324 Kanu Response Brief, para. 9.11. 325 Brima Response, para. 138; Kamara Response Brief, para. 184. 326 Kanu Response Brief, para. 9.19. judgments 1889 may allege multiple crimes for the same underlying conduct.327 The problem of impermissibly cumulative or concurrent convictions does not arise when the alleged crimes are not based upon the same criminal conduct.328 213. In paragraph 800, the Trial Chamber attempted to address the problem of cumulative convictions to ensure that no factors were double-counted toward the sentence of the accused. The bar on double-counting requires that only those factors which have been proven beyond a reasonable doubt may be used to increase the sentence of an accused,329 and that no factor taken into account as an aspect of the gravity of the crime may be additionally taken into account as a separate aggravating circumstance.330 In summarizing the relevant rule against concurrent convictions under Articles 6(1) and 6(3), the Trial Chamber relied on paragraph 91 of the Blaškić Appeals Judgment, which states: “The Appeals Chamber considers that the provisions of Article 7(1) and Article 7(3) of the Statute connote distinct categories of criminal responsibility. However, the Appeals Chamber considers that, in relation to a particular count, it is not appropriate to convict under both Article 7(1) and Article 7(3) of the Statute. Where both Article 7(1) and Article 7(3) responsibility are alleged under the same count, and where the legal requirements pertaining to both of these heads of responsibility are met, a Trial Chamber should enter a conviction on the basis of Article 7(1) only, and consider the accused’s superior position as an aggravating factor in sentencing.” 214. Read in isolation, this excerpt from the Blaškić Appeals Judgment would indicate that a compound conviction could not be entered for multiple charges in a single Count. But the following paragraph in Blaškić clarifĳied that the holding there is limited to multiple convictions pertaining to the same underlying facts: “concurrent conviction pursuant to Article 7(1) and Article 7(3) of the Statute in relation to the same counts based on the same facts, as reflected in the Disposition of the Trial Judgement, constitutes a legal error invalidating the Trial Judgment in this regard.”331 In light of the practice at international criminal courts of charging

327 The Practice is allowed in light of the fact that, prior to the presentation of all the evidence, it is not possible to determine to a certainty which of the charges brought against an accused will be proven, if any. See Galic Appeal Judgment, para. 161; Čelebići Appeal Judgment, para. 400; Kupreškić Appeal Judgment, para. 385; Kunarac Appeal Judgment, para. 167; Naletilić Appeal Judgment, para. 103; Kayishema Trial Judgment, para. 627; Akayesu Trial Judgment, para. 468. 328 Galić Appeal Judgment, para. 167. Unlike the present case, Galić was convicted of murder as a crime against humanity under two separate counts, one based on numerous incidents of sniping, another based on instances of shelling. Galić’s arguments that these convictions were cumulative were dismissed on the grounds that they were based on separate facts. It is clear to the Appeals Chamber that the same conclusion would have been reached if the sniping and shelling had been charged in the same count. 329 Čelebići Appeal Judgment, para. 763. 330 Deronjić Sentencing Appeal Judgment, para. 106. 331 Blaškić Appeal Judgment, para. 92 (emphasis added). See also Jokić Sentencing Appeal Judgment, para. 24 (fĳinding that the rule applies to concurrent convictions “in relation to the same counts based on the same facts.”). 1890 part iv multiple instances of an offfence within a single Count,332 no identifĳiable legal principle should prevent compound convictions for multiple instances of the same offfence charged in a single Count, when multiple convictions would be allowed if multiple instances of the same offfence at issue were charged in separate Counts. 215. The Appeals Chamber fĳinds that the Trial Chamber was satisfĳied that the legal requirements for conviction under Article 6(3) were met in several instances, but that the Trial Chamber did not enter convictions for those crimes. This constitutes an error of law. Trial Chambers do not have discretion to decline to enter convictions for crimes once they have been proven beyond reasonable doubt and they are not impermissibly cumulative. Instead, when the accused is charged for multiple instances of an offfence under a single Count pursuant to both Articles 6(1) and 6(3), and one or more is proved beyond a reasonable doubt for each mode of responsibility, then a compound conviction should be entered against the accused,333 and the Trial Chamber must take into account all of the convictions and the fact that both types of responsibility were proved in its consideration of sentence.334 As the jurisprudence of the international criminal tribunals shows, “multiple convictions serve to describe the full culpability of a particular accused or provide a complete picture of his criminal conduct.”335 216. Although the Trial Chamber erred in failing to enter convictions on the Appellants where it had found that the legal requirements for entering convictions under Article 6(3) have been met, in this case no useful purpose will be served by the Appeals Chamber now entering convictions on the basis of such fĳindings, made by the Trial Chamber, having regard to the adequate global sentence imposed on each Appellant.

332 See Stanković Form of the Indictment Decision (“Within the limits of the rules governing indictments, the Prosecution may choose between putting forth multiple detailed counts, or fewer counts combining specifĳic allegations. This is evident from the Prosecution’s practice at this Tribunal”); Čelebići Appeal Judgment, para. 400. 333 This is the practice when, for example, an accused is convicted for personally committing some instances of a crime and aiding and abetting other instances of the same substantive crime charged within a single Count. See Limaj Trial Judgment, para. 741 (fĳinding the Accused Haradin Bala guilty, inter alia, of “Count 6: Cruel treatment, a violation of the laws or customs of war, under Article 3 of the Statute, for having personally mistreated detainees L04, L10 and L12, and aided another episode of mistreatment of L04, and for his personal role in the maintenance and enforcement of inhumane conditions of detention in the Llapushnik/Lapusnik prison camp.”). 334 See Naletilić Trial Judgment, paras. 627–628 (fĳinding Martinović responsible under Article 7.1 for some instances of plunder, and responsible under Article 7.3 for separate instances of plunder, all charged under the same Count) afff’d Naletilić Appeal Judgment, paras. 583–586. 335 Naletilić Appeal Judgment, para. 585, citing Kunarac Appeal Judgment, para. 169. judgments 1891

VI. Brima’s Appeal

A. Brima’s First Ground of Appeal: Equality of Arms 217. In his First Ground of Appeal, Brima alleges that the Trial Chamber erred in law and in fact in failing to ensure the equality of arms between the Prosecution and Defence, which “denied or substantially impaired [his] right … to a fair trial” and resulted in “a miscarriage of justice.”336

1. Submissions of the Parties 218. Brima submits that the principle of equality of arms is a core element of the right to a fair trial;337 that while equality of arms does not guarantee an equality of resources, there must at least be an approximate equality in terms of resources.338 Brima complains that the Trial Chamber denied him “adequate time and resources” necessary to present his case.339 219. In response, the Prosecution contends that Brima’s Ground of Appeal consists almost entirely of a discussion of general legal principles relating to the concept of equality of arms. Brima does not make any statement on the particular circumstances of his own case, except for general complaint contained in paragraph 81 of his Appeal Brief.340 The Prosecution further states that during the trial, Brima never fĳiled any written request seeking additional time or resources, and that he cannot now place on the Prosecution the burden of establishing that he did, in fact, have adequate time and resources.341

2. Discussion 220. The Statute and Rules provide for an accused’s right to a fair trial.342 In particular, Article 17(4) of the Statute requires that an accused has “adequate time and facilities for the preparation of his or her defence and to communicate with counsel of his or her own choosing.”343 Equality of arms is a core element of the right to a fair trial. 221. Additional legal provisions relate to allocation of resources and facilities to the accused. Rule 45 directs the Registrar to establish, maintain and develop a

336 Brima Appeal Brief, para. 71. 337 Ibid., at para. 72. 338 Ibid., at para. 73; Rule 45(B)(iii) of the Rules. 339 Brima Appeal Brief, para. 81. 340 Prosecution Response, para. 2.2. 341 Ibid., at para. 2.2. 342 See Article 17 of the Statute; Rule 26bis of the Rules. 343 Article 17(4)(b) of the Statute. 1892 part iv

Defence Offfĳice “for the purpose of ensuring the rights of suspects and accused [persons].” The Defence Offfĳice has the responsibility to, inter alia, provide “adequate facilities for counsel in the preparation of the defence.”344 The Directive on the Assignment of Counsel requires that reasonable facilities and equipment be provided to the Defence team.345 222. The Appeals Chamber notes the submission in paragraph 81 of Brima’s Appeal Brief that Brima’s fair trial right “was substantially and seriously compromised and impaired without the adequate time and resources needed … to conduct investigations that were vital to the presentation” of his case.346 Brima, however, fails to substantiate his assertion with any specifĳic claim as to how greater resources would have put him on more level footing, or what investigations were not undertaken due to the purported lack of time or resources. Nowhere in his Appeal Brief does he expressly identify the specifĳic rights or entitlements that he required at the pre-trial or trial stage but which were unavailable to him with the efffect that his right to a fair trial was violated. 223. The Appellant Brima is required to set out his Ground of Appeal and supporting arguments clearly and exhaustively. That has not been done in this case. 224. Brima’s First Ground of Appeal is therefore dismissed.

B. Brima’s Fourth and Sixth Grounds of Appeal: Superior Responsibility for Crimes Committed in Bombali, Freetown and Other Parts of the Western Area 225. Brima’s Fourth and Sixth Grounds of Appeal, respectively, read as follows: (i) “The Trial Chamber erred in fact and/or law by fĳinding the Accused Brima was responsible under Article 6(3) for the crimes committed by his subordinates in Bombali District between 1 May 1998 and 30 November 1998 in which he did not directly participate resulting in a miscarriage of justice.”347 (ii) There is an “error in law and/or fact due to the Trial Chamber’s fĳinding that the Accused Brima is liable as a superior under Article 6(3) for crimes committed in Freetown and other parts of the Western Area during the relevant indictment period thereby occasioning a miscarriage of justice. The Trial Chamber erroneously relied on the evidence of the prosecution witnesses TF1-334, TF1-167, TF1-184 and the prosecution Military expert witness at the expense of several Defence Alibi witnesses and the Defence military expert.”348

344 Rule 45(b)(iii) of the Rules. 345 Directive on the Assignment of Counsel, 3 October 2003, Article 26. 346 Brima Appeal Brief, para. 81. 347 Ibid., at para. 84. 348 Ibid., at para. 153. judgments 1893

226. Both Grounds complain that the Trial Chamber erred in law and/or fact in fĳinding that the Appellant Brima is liable as a superior under Article 6(3) for crimes committed by his subordinates in Bombali District (Ground Four) and in Freetown and other parts of the Western Area (Ground Six) during the period covered in the Indictment. Both Grounds of Appeal are grossly defective because they do not give particulars of the errors alleged. 227. In failing to state particulars in his Grounds of Appeal, Brima’s submissions are unacceptable, difffused and wide-ranging, complaining of the evaluation of evidence of witnesses by the Trial Chamber and what could be regarded as a profuse, but unnecessary, statement of general principles of law relating to superior responsibility, at the end of which the Appellant Brima did not pinpoint in respect of which fĳinding and in which particular regard the Trial Chamber had erred in fact and or in law. 228. Most of the submissions in respect of Ground Six were mere assertions of fact which properly ought to have been made before the Trial Chamber. 229. The Appeals Chamber in perusing the Judgment of the Trial Chamber fĳinds that the Trial Chamber had made appropriate legal and factual fĳindings upon which it based its conclusion that Brima was responsible as a superior under Article 6(3). We are of the opinion that nothing useful has been urged in this Appeal to make us come to the conclusion that the Trial Chamber was in error. 230. For these reasons Grounds Four and Six of Brima’s Grounds of Appeal must fail.

C. Brima’s Fifth Ground of Appeal: Article 6(1) Responsibility for Murder and Extermination in Bombali District 231. In respect of Brima’s Fifth Ground of Appeal, the Appeals Chamber repeats its opinion in regard to Grounds Four and Six, as Ground Five of Brima’s Appeal has the same defects as those other two Grounds. 232. For the reasons stated in respect of those Grounds, Ground Five of Brima’s Appeal must also fail.

VII. Kamara’s Appeal

A. Kamara’s First Ground of Appeal: Ordering Murder of Five Civilians in Karina 233. In his First Ground of Appeal, Kamara submits that the “Trial Chamber erred in law and or fact in paragraphs 1915 and 2117 in fĳinding Kamara responsible/ 1894 part iv guilty under Article 6(1) for ordering the unlawful killing of fĳive civilians in Karina in the Bombali District pursuant to Counts 3, 4 and 5 of the Indictment, thereby invalidating the Trial judgment and leading to a miscarriage of justice.”349

1. Submissions of the Parties 234. Kamara submits that the evidence of Prosecution witnesses TF1-334 and Junior Johnson, upon which the Trial Chamber relied in fĳinding him guilty of ordering murder, is both contradictory and unreliable. He argues that these witnesses gave contradictory evidence of his exact whereabouts at the time of the killings, the location of the killings, and the identity of the individual who ordered the killings. He further argues that in view of these contradictions, the Prosecution failed to prove liability beyond reasonable doubt and that the Trial Chamber’s failure to exclude such evidence occasioned a miscarriage of justice.350 He contends further that because of the status of witness TF1-334 as a co-perpetrator, the Trial Chamber erred in law in not cautioning itself as to how his testimony should be evaluated. 235. The Prosecution responds that the “Trial Chamber was duly mindful of the concerns of the Defence in this regard and had correctly instructed itself on the appropriate legal standards.”351

2. Discussion 236. Kamara’s First Ground raised two issues relating to: (i) Contradiction in the evidence of Prosecution witnesses; and (ii) Assessment of evidence of accomplice. 237. The Appeals Chamber has earlier in this Judgment pronounced on these two issues and there is no reason to repeat what it said already.352 238. The Appeals Chamber will not disturb the Trial Chamber’s reliance on the testimony of witness TF1-334. Having heard the testimony of witness TF1-334, the Trial Chamber is in a far better position than the Appeals Chamber to decide whether his alleged participation in the commission of crimes afffects his credibility and the reliability of his testimony. The Appeals Chamber fĳinds that Kamara failed to demonstrate that a reasonable tribunal could not have relied on the evidence of the unlawful killings in Karina. This Ground of Appeal therefore fails.

349 Kamara Appeal Brief, para. 77. 350 Ibid., at paras. 99, 101. 351 Prosecution Response Brief, para. 4.41. 352 See supra paras. 127–128, 153. judgments 1895

B. Kamara’s Second, Third and Fourth Grounds of Appeal: Planning Crimes in Bombali District and Other Parts of the Western Area 239. The Appeals Chamber has considered Kamara’s Grounds Two, Three and Four where the substance of complaint is that the Trial Chamber erred in fact in fĳinding that Kamara planned the crimes alleged in Counts 9, 12 and 13. Having scrutinised the Record on Appeal the Appeals Chamber concludes that the Grounds of Appeal were misconceived. The Trial Chamber in its fĳindings had not found that Kamara planned the crimes set out in Counts 9, 12 and 13. However, the Appeals Chamber has noted that the Trial Chamber in its Disposition had mistakenly stated that Kamara was guilty of the crimes in Counts 9, 12 and 13 pursuant to Article 6(1) of the Statute when it should have been Article 6(3). 240. Accordingly, the Appeals Chamber revises the Trial Chamber’s Disposition by substituting Article 6(3) for Article 6(1) in respect of Counts 9, 12 and 13.

C. Kamara’s Fifth and Sixth Grounds of Appeal: Aiding and Abetting Crimes in Freetown and the Western Area 241. Kamara contends that the Trial Chamber erred in law and in fact by fĳind- ing him guilty under Article 6(1) for aiding and abetting the mutilation of civilians in Freetown and other parts of the Western Area as well as the killing of civilians at Fourah Bay.353 In particular, he argues that the Trial Chamber erroneously “applied a wider standard of liability instead of the stricter standard to fĳind the Appellant guilty as an aider and abettor based on its analysis of the mens rea of aiding and abetting.”354 He submits that the Trial Chamber was required to fĳind that he was aware that his acts assisted the specifĳic crime committed by the principal perpetrator and that he was aware of the essential elements of that crime.355

1. Errors of Law 242. In discussing the mens rea for aiding and abetting, the Trial Chamber stated: “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.”356

353 Kamara Appeal Brief, para. 156. 354 Ibid., at para. 165. 355 Ibid., at para. 166. 356 AFRC Trial Judgment, para. 776. 1896 part iv

243. The Appeals Chamber fĳinds that the Trial Chamber was correct in its analysis. The Appeals Chamber of the ICTY in both Blaškić and Simić found that it was not necessary to prove that the aider and abettor knew the precise crime that was intended or actually committed by the principal perpetrator.357 In both cases the ICTY Appeals Chamber held further that liability for aiding and abetting requires proof that the accused knew that one of a number of crimes would probably be committed, that one of those crimes was in fact committed, and that the accused was aware that his conduct assisted the commission of that crime.358 The Appeals Chamber endorses this principle. 244. Kamara also alleges that the Trial Chamber erred in law in failing to require that “the aider and abettor was aware of the essential elements of the crime which was ultimately committed by the principal.”359 The Aleksovski, Krnojelac and Brđanin Appeals Chambers held that the aider and abetter must be aware of the essential elements of the crime which was ultimately committed by the principal.360 245. In the present case, the Trial Judgment did not explicitly refer to the “essential elements” requirement, but instead limited its statement of the law to whether the accused knew or was aware of the substantial likelihood that his acts would assist the commission of a crime by the perpetrator.361 The Trial Chamber found that Kamara was aware of the substantial likelihood that, as deputy commander of the AFRC troops, his presence would provide moral support and assist the commission of killings in the Fourah Bay area and killing and mutilations during “Operation Cut Hand” in Freetown.362 Kamara was present during the attacks at Fourah Bay363 and led a mission to loot machetes for “Operation Cut Hand” with full knowledge of the purpose for which the weapons were to be used.364 The Trial Chamber was therefore correct to conclude that Kamara was aware of the intention of the perpetrators to mutilate people.365 246. In determining that Kamara was responsible for aiding and abetting the attacks at Fourah Bay, the Trial Chamber found that there was evidence that the

357 Simić Appeal Judgment, para. 86; Blaškić Appeal Judgment, para. 50. 358 Ibid., at para. 50. 359 Kamara Appeal Brief, para. 166. 360 Aleksosvski Appeal Judgment, para. 162; Krnojelac Appeal Judgment, para. 51; Brđanin Appeal Judgment, para. 484. 361 AFRC Trial Judgment, para. 776. 362 Ibid., at paras. 1940–1941. 363 Ibid., at paras. 1939–1940. 364 Ibid., at para. 1941. 365 But see Aleksovksi Appeal Judgment, para. 164 (concluding that the appellant was aware of the relevant state of mind of the perpetrators because he had seen the injuries inflicted upon the victims.). judgments 1897

Appellant Kamara participated in the attack on Fourah Bay in which civilians were killed and houses burnt. 247. In addition, the Trial Chamber also held that Kamara being deputy commander of the troops, his presence at the scene gave moral support to the perpetrators and that the Trial Chamber is satisfĳied that the Appellant Kamara was aware of the substantial likelihood that his presence would assist the commission of the crime by the perpetrators.366

2. Errors in the Evaluation of Evidence 248. Kamara argues that his presence at Fourah Bay was not proven beyond a reasonable doubt because the Trial Chamber erred in its evaluation of the evidence.367 Specifĳically, Kamara argues that inconsistencies between witness TF1-334 and witness TF1-184 should have been given more weight by the Trial Chamber.368 249. The Trial Chamber explicitly addressed the issue of discrepancies in witness testimony with regard to the killings at Fourah Bay as already noted, as follows: “The Kamara Defence submits that the testimonies of witnesses TF1-334, George Johnson and TF1-184 on the attack on Fourah Bay are inconsistent. 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 in the relevant time, rather than bias on the part of witness George Johnson and TF1-334, as suggested by the Kamara Defence.”369 250. On Appeal, Kamara failed to show that the Trial Chamber did not properly exercise its discretion in resolving the diffferences between the testimony of witness TF1-334, George Johnson and TF1-184. 251. Grounds Five and Six of Kamara’s Appeal therefore fail.

D. Kamara’s Seventh Ground of Appeal: Superior Responsibility 252. In Kamara’s Seventh Ground of Appeal he submits that the “Trial Chamber erred in law and or fact in paragraphs 1884, 1893 (Kono), 1928 (Bombali), 1950

366 Trial Judgment, para. 1940. 367 Kamara Appeal Brief, paras. 173, 175. 368 Ibid., at paras. 173, 179. 369 AFRC Trial Judgment, para. 924. 1898 part iv

(Western Area), 1969 (Port Loko) and 2117 of the Judgment in fĳinding Kamara criminally responsible/guilty under Article 6(3) for crimes committed by his subordinates at Tombodu, Kono District and throughout Bombali District and the Western Area and Port Loko District pursuant to Counts 1, 2, 3, 4, 5, 6, 9, 10, 12, 13 and 14 of the Indictment thereby leading to a miscarriage of justice.”370

1. Trial Chamber fĳindings 253. The Trial Chamber found Kamara criminally responsible as a superior under Article 6(3) of the Statute for crimes committed by his subordinates in Kono District, Bombali District, Port Loko District and Freetown and other parts of the Western Area.371 Regarding Kamara’s superior responsibility in Kono District, the Trial Chamber found that after the departure of Johnny Paul Koroma from Kono District, Kamara became the highest ranking AFRC soldier in this location and that he exercised efffective control over some mixed battalion of AFRC and RUF troops.372 It also found that battalions consisting of both AFRC and RUF soldiers were under AFRC command in several locations in Kono District including Tombodu; that Savage committed crimes in Tombodu and that Kamara had efffective control over Savage.373 254. Concerning Bombali District, the Trial Chamber found that there was a formal AFRC command structure in Bombali District and that Kamara in his capacity as Deputy Brigade Commander exercised efffective control over AFRC troops in this location.374 Additionally, it found on the basis of the evidence adduced that Kamara was the overall commander of AFRC troops in Port Loko District and that he had efffective control.375 In reaching this conclusion, the Trial Chamber relied on the evidence of Prosecution witnesses George Johnson and TF1-334 that Kamara gave orders which were carried out, that he appointed and promoted commanders, enforced discipline over AFRC troops, and was in a position of de jure authority over other high level commanders, including the Operations Commander, who reported to him.376 Furthermore, the Trial Chamber found that it was satisfĳied beyond reasonable doubt that Kamara was the overall commander of the AFRC forces in Port Loko District and that he had substantial authority in that position.377 The Trial Chamber also found that Kamara was the Deputy

370 Kamara Appeal Brief, para. 191 (emphasis removed). 371 AFRC Trial Judgment, paras. 1893, 1928, 1950, 1969. 372 Ibid., at paras. 1865–1866. 373 Ibid., at paras. 1873, 1884–1885. 374 Ibid., at para. 1926. 375 Ibid., at paras. 1958–1959. 376 Ibid., at para. 1959. 377 Ibid., at para. 500. judgments 1899

Commander of AFRC troops during the invasion of Freetown and that he had both de jure and de facto authority of command.378

2. Submissions of the Parties 255. Under his Seventh Ground of Appeal, Kamara submits: (i) That he did not have efffective control or the ability to control the actions of Savage and consequently could not be liable for crimes committed by Savage in Kono District; (ii) That he did not have efffective control over AFRC troops in Kono District; (iii) That the Trial Chamber erred in its interpretation of witness TF1-334’s evidence;379 (iv) That the Trial Chamber erred in fact in fĳinding him criminally responsible as a superior for crimes committed in Bombali District on the basis of evidence demonstrating that he “ordered” crimes and “participated in decision making”;380 (v) That the Trial Chamber erred in fĳinding him responsible as a superior for crimes committed by AFRC troops in Freetown on the basis of evidence indicating that he was present at meetings and at headquarters at State House immediately following its capture on 6 January 1999.381 256. The Prosecution responds that Kamara failed to demonstrate that the Trial Chamber erred in fĳinding him criminally responsible as a superior for crimes committed by AFRC troops in Kono District, Bombali District, Port Loko District and Freetown and other parts of the Western Area. It argues that Kamara’s responsibility is not precluded by evidence that Savage had an uncontrollable character.382 Further the Prosecution argues that Kamara cannot avoid responsibility by relying on evidence that other superiors concurrently exercised efffective control over AFRC troops in Kono District.383 The Prosecution further submits that the Trial Chamber’s interpretation of witness TF1-334’s testimony regarding muster parades in Kono District was correct and reasonable and argues that even if the evidence was in fact misinterpreted, Kamara has failed to demonstrate how this occasioned a miscarriage of justice in relation to his Article 6(3) responsibility.384 The Prosecution maintains that there is no material inconsistency in the evidence of

378 Ibid., at paras. 1944–1948. 379 Kamara Appeal Brief, para. 197. 380 Ibid., at para. 213. 381 Ibid., at paras. 218–219. 382 Prosecution Response Brief, paras. 5.38–5.39. 383 Ibid., at paras. 5.38–5.39. 384 Ibid., at paras. 5.34–5.37. 1900 part iv witnesses TF1-167 and TF1-334 concerning the burning of fĳive young girls inside a house in Karina and the events in Freetown. In respect of the incident involving the death of fĳive young girls in Karina, the Prosecution concedes that there are “variations in the details of how the crime was committed”; but notes that there is no dispute concerning what it calls the “essential features” of the evidence.385

3. Discussion 257. In addition to military commanders, superior responsibility under Article 6(3) of the Statute encompasses political leaders and other civilian superiors in positions of authority.386 A superior is one who possesses the power or authority to either prevent a subordinate’s crimes or punish the subordinate after the crime has been committed.387 The power or authority may arise from a de jure or a de facto command relationship.388 Whether it is de jure or de facto, the superior- subordinate relationship must be one of efffective control, however short or temporary in nature. Efffective control refers to the material ability to prevent or punish criminal conduct.389 The test of efffective control is the same for both military and civilian superiors.390 258. Kamara submits that a fĳinding of superior responsibility requires proof of both command and control which he claims are inseparable.391 The Appeals Chamber rejects this assertion. The terms “command” and “control” are two related but distinct concepts. The term “command” refers to powers that attach to a military superior, while the term “control,” which has a wider meaning encompasses both military and civilian superiors.392

(a) Kamara’s Responsibility for Crimes Committed by Savage 259. Kamara contends that the Trial Chamber erred in fĳinding him liable as a superior for crimes committed by Savage in Kono District. According to Kamara, he did not have the material ability to control the acts of Savage because Savage was unruly in character.393 The Trial Chamber noted that there was evidence that Savage was very difffĳicult to control and that he was unpredictable.394 The Trial

385 Ibid., at paras. 5.56–5.61. 386 Čelebići Appeal Judgment, para. 195. 387 Aleksovski Appeal Judgment, para. 76, Bagilishema Appeal Judgment, para. 50, citing Čelebići Appeal Judgment, para. 192. 388 Bagilishema Appeal Judgment, para. 50. 389 Čelebići Appeal Judgment, para. 256. 390 Bagilishema Appeal Judgment, para. 50, citing Aleksovski Appeal Judgment, para. 76. 391 Kamara’s Appeal Brief, para. 194. 392 Čelebići Appeal Judgment, para. 196. 393 Kamara Appeal Brief, para. 208. 394 AFRC Trial Judgment, paras. 1881–1883. judgments 1901

Chamber was satisfĳied that Savage’s unpredictable character was not a bar to fĳinding that Kamara had efffective control over him.395 The Appeals Chamber fĳinds no reason to disturb the Trial Chamber’s fĳinding that Kamara is liable as a superior for crimes committed by Savage in Kono District. (b) Kamara’s Efffective Control in Kono District and the Testimony of Witness TF1-334 on AFRC Muster Parades in Kono District 260. With respect to Kamara’s responsibility for the crimes committed by AFRC troops in Kono, the Trial Chamber found that after the departure of Johnny Paul Koroma from Kono District, the AFRC was subordinate to the RUF and that Kamara became the highest ranking AFRC soldier in the District.396 It also found that AFRC and RUF troops worked closely together in Kono District and that commanders from each faction supervised mixed battalions of AFRC and RUF troops.397 It held that despite the AFRC’s subordination to the RUF, including Kamara’s subordination to the RUF’s Denis Mingo, Kamara still had efffective control over some mixed battalions of AFRC and RUF troops.398 261. In reaching this conclusion, the Trial Chamber relied on the evidence of witness TF1-334 who testifĳied that Kamara, although subordinate to Denis Mingo, was the most senior commander of the AFRC in Kono District and that AFRC combatants “operated under their [i.e. Mingo’s and Kamara’s] command and were answerable to the AFRC commanders.”399 The Trial Chamber also noted the evidence of George Johnson that Denis Mingo appointed and promoted some members of the RUF and this was endorsed by Kamara,400 and that Kamara exercised authority over promotions within the AFRC troops in Kono District.401 According to witness TF1-334, although Kamara was subordinate to Denis Mingo and received orders from him, AFRC troops operated under Kamara’s command and were answerable to him.402 Witness TF1-334 corroborated George Johnson’s testimony that Kamara made appointments, gave promotions and issued orders which were carried out by AFRC troops.403 262. Subordination of the AFRC to the RUF and substantial cooperation between the AFRC and RUF may have diminished the distinction between the two command structures. Nonetheless, the Appeals Chamber considers that concurrent

395 Ibid., at para. 1886. 396 Ibid., at para. 1865. 397 Ibid., at para. 1865. 398 Ibid., at paras. 1866, 1885. 399 Ibid., at para. 1867. 400 Ibid., at para. 452. 401 Ibid., at para. 452. 402 Ibid., at para. 1867. 403 Ibid., at paras. 1867–1868. 1902 part iv command does not vitiate the individual responsibility of any of the commanders.404 In its evaluation of concurrent command in Kono District, the Trial Chamber concluded that Denis Mingo’s command in Kono District over joint units of the AFRC/RUF force did not preclude a fĳinding of superior responsibility on the part of Kamara. The Trial Chamber noted Denis Mingo’s position of authority over Kamara, but also noted that Kamara continued to issue orders to AFRC subordinates which were followed,405 and remained the most senior AFRC commander in Kono until Brima’s arrival in mid-May 1998.406 The Appeals Chamber fĳinds no error in the Trial Chamber’s approach, and therefore afffĳirms the Trial Chamber’s fĳinding that Kamara exercised efffective control in Kono District. 263. Kamara argues that the Trial Chamber erred in its interpretation of witness TF1-334’s evidence regarding muster parades in Kono.407 He contends that witness TF1-334 only testifĳied as to “how often a muster [parade] generally occurs in a military context” rather than to how often the AFRC held muster parades in Kono District as held by the Trial Chamber.408 The relevant excerpts are the following: “Prosecution: You use the word muster, M-U-S-T-E-R; what do you mean by muster? Witness TF1-334: This is a military term that is to bring together the various forces and address them. That is what we call mustered. Prosecution: How often does a muster generally occur in a military context? Witness TF1-334: Well, this was a weekly address. Every week the two groups were addressed. Prosecution: Now go on. You were talking about Morris Kallon saying something about the SLAs and that they should not muster? Witness TF1-334: And again he said the SLA should – had no right to call themselves SLA in Kono, and neither AFRC, because he only knew of one faction and that is the RUF faction. So this brought confusion between the RUF and the SLA.”409 264. In paragraph 1869 of its Judgment, the Trial Chamber summarized the testimony, stating:

404 See Orić Trial Judgment, para. 313 (“If a superior is proven to have possessed the efffective control to prevent or punish relevant crimes, his or her own individual criminal responsibility is not excluded by the concurrent responsibility of other superiors”), citing Blaškić Trial Judgment, paras. 296, 302, 303; Krnojelac Trial Judgment, para. 93; Naletilić Trial Judgment, para. 69; Halilović Trial Judgment, para. 62. 405 AFRC Trial Judgment, para. 1870. 406 Ibid., at paras. 451, 460–461. 407 Kamara Appeal Brief, paras. 197–198. 408 Ibid., at paras. 197–198. 409 Transcript, TF1-334, 19 May 2005, pp. 9–10 (emphasis added). judgments 1903

“Witness TF1-334 also testifĳied that the AFRC troops held muster parades every week in Kono, until they were prohibited from doing so by Morris Kallon (RUF) … The witness explained that ‘mustering’ is a military term that refers to the force being brought together and addressed publicly. This procedure is indicative of an organised force that is responsive to superior command.”410 265. Having considered the relevant excepts, the Appeals Chamber holds that the Trial Chamber did not err in its interpretation of the evidence of witness TF1- 334. The evidence remains that the AFRC held regular muster parades in Kono and that this fact demonstrates a degree of command and control from which efffective control could reasonably be inferred. (c) Kamara’s Efffective Control in Bombali District 266. Kamara contends that evidence demonstrating he “ordered” crimes and “participated in decision making” in Bombali District is insufffĳicient to establish his criminal responsibility as a superior.411 Kamara acknowledges that he had powers to issue orders but stated that he did not have powers to discipline AFRC troops.412 The powers of a superior to issue orders and make binding decisions are indicative of his ability to exercise efffective control.413 Contrary to Kamara’s contention, the Trial Chamber did not establish his efffective control merely on the basis of evidence that he ordered crimes. Rather, it considered evidence that Kamara, inter alia, issued orders to troops in Karina which were obeyed, participated at a senior level in military operations in Bombali District and received reports from both the operations commander and the provost marshal.414 Accordingly, the Appeals Chamber endorses the Trial Chamber’s approach in establishing Kamara’s efffective control in Bombali District. (d) Conflicting Testimony of Witness TF1-334 and Witness TF1-167 267. Kamara submits that the Trial Chamber failed to reconcile the conflicting testimony of witness TF1-334 and witness TF1-167 concerning the burning of fĳive young girls inside a house in Karina in Bombali District.415 He argues that in failing to provide a reasoned opinion explaining its evaluation of the conflicting evidence, the Trial Chamber failed to establish that it was proved beyond reasonable doubt that he is liable as a superior under Article 6(3) of the Statute.416 Kamara had advanced similar arguments in respect of the testimony of witnesses TF1-167 and TF1-334 concerning an order that prisoners released from Pademba Road

410 AFRC Trial Judgment, para. 1869 (emphasis added). 411 Kamara Appeal Brief, paras. 213–217. 412 Ibid., at para. 216. 413 Halilović Trial Judgment, para. 58. 414 AFRC Trial Judgment, paras. 1924–1925. 415 Kamara Appeal Brief, paras. 213–217. 416 Ibid., at para. 215. 1904 part iv

Prison should move to State House and that AFRC troops should burn houses and parastatals in Freetown.417 268. While it is preferable for the Trial Chamber to state its reasons for accepting the evidence of one witness over that of another when they are contradictory, the Trial Chamber is not obliged to refer to every piece of evidence on the trial record.418 Rather, it may only make fĳindings of material facts that are essential to the determination of guilt in relation to a particular Count. The Appeals Chamber notes that the Trial Chamber has set out in its Judgment the standard of review for the evaluation of witness testimony.419 (e) Kamara’s Responsibility as a Superior for Crimes in Freetown 269. The Appeals Chamber now turns to Kamara’s fĳinal contention that the Trial Chamber erred in fĳinding him responsible as a superior for crimes committed by AFRC troops in Freetown on the basis of evidence indicating that he was present at meetings and at headquarters at State House immediately following its capture on 6 January 1999.420 Kamara asserts that such evidence does not form the basis upon which his liability as a superior could be assessed. The Appeals Chamber considers that Kamara misconstrues the Trial Chamber’s fĳindings. The Trial Chamber noted evidence that Kamara was present at meetings, but drew no inferences or conclusions from the evidence as the Prosecution did not lead evidence about Kamara’s contributions at those meetings.421 The Appeals Chamber fĳinds this conclusion to be reasonable. 270. Contrary to Kamara’s assertion, his presence at State House did not form the sole basis for the Trial Chamber’s fĳinding of efffective control. In addition to his presence, the Trial Chamber based its fĳinding that he exercised efffective control over AFRC forces on the fact that Kamara was often in the company of senior commanders; that he participated in decision making; that he did not distance himself from decisions that were made and that he gave orders that were obeyed.422 Kamara has not demonstrated any error or unreasonableness in the Trial Chamber’s fĳindings. 271. For the above reasons, the Appeals Chamber holds that Ground Seven of Kamara’s Appeal is untenable.

417 Ibid., at paras. 220–222. 418 Čelebići Appeal Judgment, para. 498; Kupreškić Appeal Judgment, para. 39; Kordić Appeal Judgment, para. 382. 419 AFRC Trial Judgment, para. 111. 420 Kamara Appeal Brief, para. 219. 421 AFRC Trial Judgment, para. 1945. 422 Ibid., at paras. 1945–1948. judgments 1905

VIII. Kanu’s Appeal

A. Kanu’s First Ground of Appeal: Those Bearing the Greatest Responsibility 1. Submissions of the Parties 272. Under his First Ground of Appeal, Kanu submits that the Trial Chamber erred in law and in fact by fĳinding that the words “the Special Court … shall … have the power to prosecute persons who bear the greatest responsibility…” enshrined in Article 1(1) of the Statute is not a jurisdictional requirement.423 Kanu submits that the Trial Chamber committed a further error in convicting him without fĳirst establishing whether it had jurisdiction over him.424 According to Kanu, the drafters of the Statute were aware of the fact that the Special Court would have limited time and resources and therefore deliberately circumscribed the Court’s personal jurisdiction through the “greatest responsibility requirement.”425 Kanu argues that the United Nations Security Council rejected the Secretary General’s proposal for the “most responsible” standard in favour of the “greatest responsibility” standard in Article 1 of the Statute in order to limit the Court’s competence to those who played a leadership role.426 Kanu contends that the Court must be the ultimate arbiter on the issue and this purpose would be defeated if the requirement were interpreted as a mere guide to prosecutorial strategy.427 Kanu further relies on the fĳindings of Trial Chamber I that the “greatest responsibility” standard was a jurisdictional requirement.428 273. Kanu submits that the determination of whether the accused is one of those who bear the “greatest responsibility” should be made either at the pre-trial stage or at the close of the Prosecution’s case when considering the Motion for Acquittal.429 He submits further that the Trial Chamber’s assessment should be based on a consideration of the leadership position of the accused.430 In conclusion, Kanu submits that he is not one of those who bear “the greatest responsibility” for the crimes committed, and because this jurisdictional requirement431 was not met in his case, all convictions against him should be set aside.432

423 Kanu Appeal Brief, para. 1.1.; AFRC Trial Judgment, paras. 640–659. 424 Kanu Appeal Brief, para. 1.1.; AFRC Trial Judgment, paras. 640–659. 425 Ibid., at para. 1.4. 426 Ibid., at para. 1.5. 427 Ibid., at para. 1.10. 428 Prosecution v. Brima, Fofana and, Kondewa, SCSL-03-11-PT, Trial Chamber I, Decision on the Preliminary Defence Motion on the Lack of Personal Jurisdiction Filed on Behalf of Accused Fofana, 3 March 2004. 429 Ibid., at para. 1.16. 430 Ibid., at para. 1.21. 431 Ibid., at para. 1.25. 432 Ibid., at para. 1.28. 1906 part iv

274. In response, the Prosecution submits that there was no error in the Trial Chamber’s fĳinding that the greatest responsibility standard is a guide to prosecutorial strategy rather than a jurisdictional requirement. It relies on the drafting history of the Statute to support this argument.433 In particular, the Prosecution notes that the Security Council did not disagree with the Secretary-General’s opinion that the phrase “persons who bear the greatest responsibility” must not be seen as a test criterion or a distinct jurisdictional threshold, but as a guide to the Prosecutor in adopting a prosecution strategy in individual cases.434 The Prosecution contends that if the Appeals Chamber were to hold that the clause is a jurisdictional requirement, it would require a factual determination at the pre- trial stage that there is no person who has not been indicted who bears greater responsibility than the accused. According to the Prosecution, this would be an absurd interpretation because it is impossible to know the precise scope of criminal liability of an accused at the pre-trial stage.435 Similarly, the Prosecution argues that it would be unworkable to suggest that this determination should be made by the Trial or Appeals Chamber at the end of the trial.436 By way of analogy, the Prosecution submits that if “persons who bear the greatest responsibility” contained in Article 1 of the Special Court Statute was a jurisdictional requirement, then the term “persons responsible” contained in Article 1 of the ICTY and ICTR Statutes could also be viewed as jurisdictional requirements, leading to the “absurdity” that the Prosecutor would only be able to prosecute those who are actually guilty.437 275. The Prosecution further argues that prosecutorial discretion is not susceptible to judicial review,438 except in circumstances where the Prosecutor acts in contravention of the rights of an accused and bases his decision to prosecute on impermissibly discriminatory motives.439 The Prosecution argues that Kanu has failed to demonstrate that in indicting him, the Prosecutor has not exercised his discretion in good faith or that he did so unreasonably.440 Moreover, the Prosecution submits that Kanu should have brought his challenge to the greatest responsibility standard at the pre-trial stage, and having failed to do so, he must be taken to have waived his right to do so at a later stage of the proceedings.441

433 Prosecution Response Brief, para. 2.40. 434 Ibid., at para. 2.43. 435 Ibid., at para. 2.45. 436 Ibid., at paras. 2.46, 2.53. 437 Ibid., at para. 2.47. 438 Ibid., at para. 2.47. 439 Ibid., at paras. 2.48–2.50. 440 Ibid., at para. 2.56. 441 Ibid., at para. 2.56. judgments 1907

276. In reply, Kanu submits that even if the Appeals Chamber were to hold that he has waived his right to raise this issue on appeal, it should, in the interest on justice or to avoid an injustice, consider the issue proprio motu.442

2. Discussion 277. The Appeals Chamber notes that Articles 1, 11 and 15 of the Statute read as follows: Article 1 Competence of the Special Court 1. The Special Court shall, except as provided in subparagraph (2), have the power to prosecute persons who bear the greatest responsibility for serious violations of international humanitarian law and Sierra Leonean law committed in the territory of Sierra Leone since 30 November 1996, including those leaders who, in committing such crimes, have threatened the establishment of and implementation of the peace process in Sierra Leone. 2. Any transgressions by peacekeepers and related personnel present in Sierra Leone pursuant to the Status of Mission Agreement in force between the United Nations and the Government of Sierra Leone or agreements between Sierra Leone and other Governments or regional organizations, or, in the absence of such agreement, provided that the peacekeeping operations were undertaken with the consent of the Government of Sierra Leone, shall be within the primary jurisdiction of the sending State. 3. In the event the sending State is unwilling or unable genuinely to carry out an investigation or prosecution, the Court may, if authorized by the Security Council on the proposal of any State, exercise jurisdiction over such persons. Article 11 Organization of the Special Court The Special Court shall consist of the following organs: a. The Chambers, comprising one or more Trial Chambers and an Appeals Chamber; b. The Prosecutor; and c. The Registry.

Article 15 The Prosecutor 1. The Prosecutor shall be responsible for the investigation and prosecution of persons who bear the greatest responsibility for serious violations of international

442 Prosecution v. Brima, Kamara and Kanu, SCSL-2004-16-A, Submissions in Reply – Kanu Defence, 9 October 2007, para. 1.10. 1908 part iv

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. 2. The Offfĳice of the Prosecutor shall have the power to question suspects, victims and witnesses, to collect evidence and to conduct on-site investigations. In carrying out these tasks, the Prosecutor shall, as appropriate, be assisted by the Sierra Leonean authorities concerned. 3. The Prosecutor shall be appointed by the Secretary-General for a three-year term and shall be eligible for re-appointment. He or she shall be of high moral character and possess the highest level of professional competence, and have extensive experience in the conduct of investigations and prosecutions of criminal cases. 4. The Prosecutor shall be assisted by a Sierra Leonean Deputy Prosecutor, and by such other Sierra Leonean and international stafff as may be required to perform the functions assigned to him or her efffectively and efffĳiciently. Given the nature of the crimes committed and the particular sensitivities of girls, young women and children victims of rape, sexual assault, abduction and slavery of all kinds, due consideration should be given in the appointment of stafff to the employment of prosecutors and investigators experienced in gender-related crimes and juvenile justice. 5. In the prosecution of juvenile offfenders, the Prosecutor shall ensure that the child- rehabilitation programme is not placed at risk and that, where appropriate, resort should be had to alternative truth and reconciliation mechanisms, to the extent of their availability. 278. In interpreting Article 1 of the Statute it should be noted that there are dif- ferent organs of the Court each of which has its own function. Article 11 of the Statute states the Court comprises of the following organs: (i) The Chambers, consisting of one or more Trial Chambers and one Appeals Chamber; (ii) The Prosecutor; and (iii) The Registry. 280. Each organ of the Court performs specifĳic functions as set out in the Statute. The Chambers constitute the adjudicative organ of the Court. The Prosecutor by virtue of Article 15(1) of the Statue is the organ vested with the responsibility “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” (emphasis applied). 281. It is evident that it is the Prosecutor who has the responsibility and competence to determine who are to be prosecuted as a result of investigation undertaken by him. It is the Chambers that have the competence to try such persons judgments 1909 who the Prosecutor has consequently brought before it as persons who bear the greatest responsibility. 282. The Appeals Chamber agrees with the Prosecution that the “only workable interpretation of Article 1(1) is that it guides the Prosecutor in the exercise of his prosecutorial discretion. That discretion must be exercised by the Prosecution in good faith, based on sound professional judgment … that it would also be unreasonable and unworkable to suggest that the discretion is one that should be exercised by the Trial Chamber or the Appeals Chamber at the end of the trial.”443 283. In the opinion of the Appeals Chamber it is inconceivable that after a long and expensive trial the Trial Chamber could conclude that although the commission of serious crimes has been established beyond reasonable doubt against the accused, the indictment ought to be struck out on the ground that it has not been proved that the accused was not one of those who bore the greatest responsibility. 284. Kanu’s interpretation of Article 1 of the Statute is a desperate attempt to avoid responsibility for crimes for which he had been found guilty. 285. Kanu’s First Ground of Appeal is therefore without merit.

B. Kanu’s Fifth and Sixth Grounds of Appeal: Efffective Control for Superior Responsibility 1. Submissions of the Parties 286. The Fifth and Sixth Grounds of Kanu’s Appeal both invoke errors relating to the Trial Chamber’s fĳindings that he bears superior responsibility under Article 6(3) of the Statute. Kanu advances identical legal arguments in support of these Grounds. Consequently, the Appeals Chamber will consider them together. 287. Kanu submits that the Trial Chamber adopted a flawed approach in assessing whether he had efffective control over AFRC troops in Bombali District (Fifth Ground of Appeal) and Freetown and other parts of the Western Area (Sixth Ground of Appeal). Specifĳically, Kanu submits that the Trial Chamber adopted a “two-pronged” approach to determining efffective control which sought fĳirst, to establish whether the AFRC leadership collectively had efffective control and second, to establish whether Kanu individually had efffective control over AFRC troops.444 Kanu contends that the approach is “legally flawed” because it imputes criminal responsibility to him on the basis of collective responsibility rather than on the basis of individual criminal responsibility.445

443 Prosecution Response Brief, paras. 2.52, 2.53. 444 Kanu Appeal Brief, paras. 5.6–5.8, 6.2. 445 Ibid., at paras. 5.7, 6.3. 1910 part iv

288. In response, the Prosecution submits that Kanu had the material ability to prevent or punish the AFRC troops under his command and gave several examples in which Kanu exercised that authority. The Prosecution contends that Kanu’s arguments are “without merit” and maintains that the Trial Chamber did not commit an error of fact or law that either resulted in a miscarriage of justice or invalidated the Trial Judgment.446

2. Discussion 289. The Appeals Chamber recalls that the existence of a superior-subordinate relationship is paramount to the determination of superior responsibility. Critical to the fĳinding of a superior-subordinate relationship is that the commander exercised “efffective control” over his subordinates.447 Efffective control refers to the material ability of a superior, whether military or civilian, de jure or de facto, to prevent or punish his subordinates’ crimes.448 “Substantial influence” or “persuasive ability” which falls short of efffective control is insufffĳicient for a fĳinding of superior responsibility.449 A fĳinding that a superior exercised efffective control is a question of fact to be determined on a case-by-case basis. 290. The Appeals Chamber rejects Kanu’s submission that the Trial Chamber adopted a two-pronged approach to determining efffective control which sought fĳirst whether the AFRC leadership collectively had efffective control to establish whether Kanu individually had efffective control over AFRC troops. The Appeals Chamber considers that Kanu’s assertion is premised on an incorrect interpretation of the Trial Chamber’s fĳindings. The Appeals Chamber is of the opinion that the Trial Chamber properly examined the AFRC structure in order to determine whether it created an enabling atmosphere for the exercise of efffective control. 291. As to the issue of efffective control in respect of superior responsibility the Appeals Chamber reiterates its conclusion it arrived at on the similar Ground of Appeal by the Appellant Kamara. 292. Kanu’s Fifth and Sixth Grounds of Appeal therefore fail. C. Kanu’s Seventh Ground of Appeal: Mens Rea for Crimes Related to Child Soldiers 1. Introduction 293. In his Seventh Ground of Appeal, Kanu alleges that the Trial Chamber erred in law in dismissing his argument that “the absence of criminal knowledge on his

446 Prosecution Response Brief, para. 5.100. 447 Čelebići Appeal Judgment, para. 197. 448 Ibid., at para. 256; Bagilishema Appeal Judgment, para. 51, citing Musema Trial Judgment, para. 135. 449 Čelebići Appeal Judgment, para. 266. judgments 1911 part vitiated the requisite mens rea to the crimes relating to child soldiers.”450 He argues that the mens rea element required for the crime was in this instance negated by a mistake of law on his part. Due to various factors, detailed in his Appeal Brief, Kanu submits that “he believed that his conduct [of conscripting or enlisting children under the age of 15 years] was legitimate.”451 He contends that at all material times, he lacked the requisite criminal intent required for the crime of “conscripting or enlisting children under the age of 15 years into armed forces or groups or using them to participate actively in hostilities” punishable under Article 4.c of the Statute of the Special Court. 294. In the alternative, Kanu argues that conscripting or enlisting children under the age of 15 was not a war crime at the time alleged in the Indictment. 295. The Prosecution observes that the Appeals Chamber has already ruled that conscripting or enlisting children under the age of 15 years into armed forces or groups or using them to participate actively in hostilities was a crime entailing individual criminal responsibility at the time of the acts alleged in the Indictment. The Appeals Chamber refers to its dictum that: “The rejection of the use of child soldiers by the international community was widespread by 1994 … Citizens of Sierra Leone, and even less, persons in leadership roles, cannot possibly argue that they did not know that recruiting children was a criminal act in violation of international humanitarian law. Child recruitment was criminal- ized 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 specifĳicity are both upheld.”452 296. Kanu’s submission that conscripting or enlisting children under the age of 15 was not a war crime at the time alleged in the Indictment is without merit. Furthermore it is frivolous and vexatious for Kanu to contend that the absence of criminal knowledge on his part vitiated the requisite mens rea in respect of the crimes relating to child soldiers. 297. Kanu’s Seventh Ground of Appeal therefore fails.

D. Kanu’s Ninth Ground of Appeal: Findings of Responsibility Pursuant to Article 6(1) of the Statute 1. The Parties’ Submissions and the Findings of the Trial Chamber 298. In his Ninth Ground of Appeal, Kanu submits that the Trial Chamber erred in convicting him under Article 6(1) for planning the commission of sexual slavery

450 Kanu Appeal Brief, para. 7.1. 451 Ibid., at para. 7.8. 452 Norman Child Recruitment Decision, paras. 52–53. 1912 part iv

(Count 9), the conscription and use of children for military purposes (Count 12), and abductions and forced labour (Count 13). The Trial Chamber held that Kanu “planned, organised and implemented the system to abduct and enslave civilians which was committed by AFRC troops in Bombali and Western Area.” It further held that Kanu “had the direct intent to establish and implement the system of exploitation involving the three enslavement crimes, namely, sexual slavery, conscription and use of children under the age of 15 for military purposes, and abductions and forced labour.”453 The Trial Chamber was, therefore, satisfĳied beyond reasonable doubt that Kanu bore individual criminal responsibility under Article 6(1) for planning the commission of the above crimes in the Bombali District and the Western Area.454 299. Kanu argues that while the evidence shows that it fell upon him, as Chief of Stafff, to manage the system of slavery within the AFRC faction, he could not be convicted on that basis for planning the crimes of sexual slavery, conscription and use of children for military purposes, and abductions and forced labour.455 He further argues that at best, the evidence implicates him at the execution stage in the military training of children and the exploitation of women for sexual purposes.456 300. The Prosecution responds that Kanu’s position of influence in the AFRC and his admission that he managed this system of slavery amply justify a reasonable inference that he was involved in planning the above crimes.457

2. Discussion 301. The Appeals Chamber concurs with the Trial Chamber’s defĳinition of planning under Article 6(1). The Trial Chamber stated that “ ‘planning’ implies that one or several persons contemplate designing the commission of a crime at both the preparatory and execution phases.”458 Circumstantial evidence may provide proof of the existence of a plan, and an individual may incur responsibility for planning when his level of participation is substantial even though the crime may have actually been committed by another person.459 According to the Trial Chamber, the actus reus for planning requires that “the accused, alone or together with others, designated [sic] the criminal conduct constituting the crimes charged.”460

453 AFRC Trial Judgment, para. 2095. 454 Ibid., at paras. 2096–2098. 455 Kanu Appeal Brief, para. 9.1–9.6. 456 Ibid., at para. 9.6. 457 Response Brief of Prosecution, paras. 6.61, 6.64, 6.66. 458 AFRC Trial Judgment, para. 765. 459 Ibid., at para. 765. 460 Ibid., at para. 766. judgments 1913

While “there must be a sufffĳicient link between the planning of a crime both at the preparatory and the execution phases,” it is “sufffĳicient to demonstrate that the planning was a factor substantially contributing to such criminal conduct.”461 The Trial Chamber further stated that 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 … in the execution of that plan.”462 302. With regard to sexual slavery, the Trial Chamber found that: “In Bombali District the Accused Kanu designed and implemented a system to control abducted girls and women. All abducted women and girls were placed in the custody of the Accused. Any soldier who wanted an abducted girl or woman to be his “wife” had to ‘sign for her.’ The Accused informed his fĳighters that any problems with the women were to be immediately reported back to him, and that he would then monitor the situation. The Accused issued a disciplinary instruction ordering that any woman caught with another woman’s husband should be beaten and locked in a box.”463 On the basis of this evidence, the Trial Chamber was satisfĳied beyond reasonable doubt that Kanu was responsible for planning the commission of the crime of sexual slavery in the Bombali District and the Western Area. The Appeals Chamber agrees. 303. The Appeals Chamber now turns to the Trial Chamber’s fĳindings regarding the conscription and use of children for military purposes, as well as abductions and forced labour in the Bombali District and the Western Area. In the case of Bombali District, the Trial Chamber found that Kanu was in charge of forced military training of civilians at Camp Rosos and that children below the age of 15 years were among those forced to undergo training.464 On the basis of this evidence, the Trial Chamber was satisfĳied beyond reasonable doubt that in the Bombali District Kanu was not only responsible for planning the conscription of children under the age of 15 into an armed group, but also for using such children to participate actively in hostilities, as well as for the crime of enslavement. 304. Regarding the Western Area, the Trial Chamber also found that Kanu “continued in his positions as Chief of Stafff and commander in charge of civilians in Freetown and the Western Area” and that he had “approximately ten child combatants in his charge in Benguema following the retreat from Freetown.”465 On the basis of this evidence, the Trial Chamber found that Kanu was responsible for

461 Ibid., at para. 768; Kordić Appeal Judgment, para. 26. 462 AFRC Trial Judgment, para. 766. 463 Ibid., at para. 2092. 464 Ibid., at para. 2093. 465 Ibid., at para. 2094. 1914 part iv planning the conscription of children under the age of 15 into an armed group, or the use of such children to participate actively in hostilities, and enslavement in the Western Area. 305. Finally, the Appeals Chamber fĳinds that the evidence led before the Trial Chamber warrants an examination of Kanu’s responsibility for aiding and abetting the commission of sexual slavery and forced labour in Newton in the Western Area.466 The Appeals Chamber notes that witness TF1-334, whom the Trial Chamber found to be credible and reliable, stated that Kanu was responsible for the women and girls in the camp at Newton. AFRC soldiers reported to Kanu if they had any problems with the women and girls.467 The Trial Chamber found that while the women were helping with the cooking, “the ‘girls’ were sleeping with the ‘commanders.’ ”468 The Appeals Chamber is satisfĳied that in this position of responsibility regarding the women and girls at Newton, Kanu provided practical assistance to a system of sexual slavery and forced labour. The Appeals Chamber is further satisfĳied that Kanu was aware that his acts would assist in the implementation of this system of sexual slavery and forced labour. In light of the above evidence, the Appeals Chamber is satisfĳied that Kanu aided and abetted the commission of sexual slavery and forced labour in the Western Area. Thus, the Appeals Chamber fĳinds that the Trial Chamber erred in failing to convict Kanu for aiding and abetting the commission of sexual slavery and forced labour in the Western Area. 306. The Appeals Chamber upholds the conviction of Kanu for planning the commission of sexual slavery in the Bombali District and upholds the conviction of Kanu for planning the commission of sexual slavery in the Western Area and further upholds the Trial Chamber’s convictions for planning the conscription and use of children for military purposes as well as abductions and forced labour in the Bombali District and the Western Area. The Appeals Chamber furthermore fĳinds that there is sufffĳicient evidence that Kanu aided and abetted the commission of the said crimes. However, as he has already been convicted of planning those crimes the question of convicting him on the basis of aiding and abetting does not arise.

IX. Grounds of Appeal Relating to Sentence

A. Introduction 307. The Trial Chamber imposed a sentence of fĳifty (50) years imprisonment on Brima and Kanu respectively and forty-fĳive (45) years imprisonment on

466 Ibid., at paras. 1165, 1389. 467 Transcript, TF1-334, 15 June 2005, p. 15. 468 AFRC Trial Judgment, para. 1164. judgments 1915

Kamara.469 The Trial Chamber found that there were a number of aggravating but no mitigating factors. The Appellants have appealed against the sentence, while the Prosecution has not done so except to request that if some of its Grounds succeed, the Appeals Chamber should consider revising the sentence to reflect any additional criminal liability. The Appellants’ Grounds of Appeal are closely related, therefore, dealing with them separately would lead to unnecessary repetition. It is convenient to address the Appellants’ submissions together except for those which raise a diffferent issue in Kanu’s Eighth Ground of Appeal.

B. Standard of Review on Appeals Relating to Sentence 308. Article 19 of the Statute limits the penalty that a Trial Chamber can impose upon a convicted person (other than a juvenile) to “imprisonment for a specifĳied term of years.” It further provides that the Trial Chamber shall, in determining the “terms of imprisonment,” as appropriate, have recourse to the sentencing practices of the International Criminal Tribunal for Rwanda (“ICTR”) and the national courts of Sierra Leone. The Statute requires the Trial Chamber to take into account such factors as the gravity of the offfence and the individual circumstances of the convicted person in imposing sentences.470 309. The determination of an appropriate sentence being at the discretion of the Trial Chamber, the Appeals Chamber will only revise a sentence where the Trial Chamber has committed a discernible error in exercising its discretion or has failed to follow the applicable law. To show that the Trial Chamber committed a discernible error in exercising its discretion: “the Appellant has to demonstrate that the Trial Chamber gave weight to extraneous or irrelevant considerations, failed to give weight or sufffĳicient weight to relevant considerations, made a clear error as to the facts upon which it exercised its discretion, or that the Trial Chamber’s decision was so unreasonable or plainly unjust that the Appeals Chamber is able to infer that the Trial Chamber must have failed to exercise its discretion properly.”471

C. Excessive Sentences: Ground Twelve of Brima’s Appeal and Ground Ten of Kamara’s Appeal 310. Brima alleges that the Trial Chamber erred by imposing a global sentence of fĳifty years, that it is “excessively harsh and disproportionate,” and that it is

469 AFRC Sentencing Judgment, Disposition. 470 Article 19, Statute of the Special Court. 471 Babić Judgment on Sentencing Appeal, para. 44. See also, Nikolić Sentencing Appeal Judgment, para. 95. Blagojević Appeal Judgment para. 137; Brđanin Appeal Judgment, para. 500; Bralo Sentencing Appeal Judgment, para. 9; Galić Appeal Judgment, para. 394. 1916 part iv inconsistent with the sentencing guidelines of the ICTY and the ICTR.472 Kamara’s Tenth Ground of Appeal argues that the Trial Chamber was required by Article 19(1) of the Statute to consider the sentencing practices in the ICTR and the national courts of Sierra Leone.473 Kamara further argues that a sentence of 45 years is inconsistent with the penalties that have been imposed by the ICTR.474 311. Article 19(1) of the Statute provides that the “Trial Chamber, as appropriate, shall have recourse to the practice regarding prison sentences in the Interna- tional Criminal Tribunal for Rwanda and the national courts of Sierra Leone.” The phrase “where appropriate” shows that the Trial Chamber has a discretion in determining when to have recourse to sentencing practices in the two courts.

D. Mitigating Factors: Ground Nine of Kamara’s Appeal and Grounds Eleven, Fifteen, Sixteen, Seventeen and Eighteen of Kanu’s Appeal 312. The Appellants make two distinct submissions with regard to mitigating factors. First, that the Trial Chamber did not consider mitigating factors and second, that particular mitigating factors were not given adequate weight.475 313. Rule 101(B) of the Rules provides that the “Trial Chamber shall take into account the factors mentioned in Article 19(2) of the Statute, as well as such factors as: …any mitigating circumstances including the substantial cooperation with the Prosecutor by the convicted person before or after conviction.” Brima and Kanu argue that the Trial Chamber failed to consider mitigating factors.476 314. In the view of the Appeals Chamber an appellant challenging the weight given by a Trial Chamber to a particular mitigating circumstance has the duty of showing that the Trial Chamber abused its discretion. 315. The mere recital of mitigating factors, as the Appellants have done, without concrete arguments, does not sufffĳice to discharge the burden of demonstrating that the Trial Chamber abused its discretion.477

472 Brima Appeals Brief, paras. 180–181. 473 Kamara Appeals Brief, para. 246. 474 Ibid., at para. 249. 475 Brima Appeal Brief, paras. 184, 182; Kamara Appeal Brief, para. 237; Kanue Appeal Brief, paras. 11.1, 11.9. 476 Brima asserts that the Trial Chamber did not consider his lack of criminal convictions, good reputation in the Army and contribution to the peace process (Brima Appeal Brief, para. 184); Appellant Kanu asserts that the Trial Chamber did not take into consideration his relatively low position in the AFRC and that the length of time it took to conclude the proceedings caused him unbearable anxiety and mental anguish (Kanu Appeal Brief, para. 11.6, 11.9). 477 Simić Appeal Judgment, para. 249; Kvočka Appeal Judgment, para. 675. judgments 1917

E. Double-Counting, Gravity of the Offfence and Aggravating Factors: Ground Twelve of Brima’s Appeal 316. Brima submits that the Trial Chamber erred by considering the following factors in determining the gravity of the offfence as well as aggravating factors: “The brutality and heinousness of the crimes such as the drugging of child soldiers, brutal gang rapes, lengthy periods of enslavement, the burning alive of civilians and amputations.” 317. Although the issue of double-counting was only raised by Brima, it is in the interest of justice for the Appeals Chamber to consider the issue in relation to Kanu and Kamara as well. As the Trial Chamber notes in the Sentencing Judgment, “where a factor has already been taken into account in determining the gravity of the offfence, it cannot be considered additionally as an aggravating factor ….”478 This prohibition is well established in the case law of the international criminal tribunals.479 318. In Nikolić, the ICTY Appeals Chamber determined that the Trial Chamber had double-counted by repeating facts concerning the accused’s general role in the offfences.480 However, the Appeals Chamber determined that there was no double-counting where the Trial Chamber considered the impact of the crimes on the victim in one section and the vulnerability of the victims in the other section.481 319. The Appeals Chamber notes that there were instances of double-counting in the Sentencing Judgment.482 320. Although the Trial Chamber made an error by double-counting, the Appeals Chamber does not consider that this error had a signifĳicant impact upon the Appellants’ sentences.

F. Kanu’s Eighth Ground of Appeal: Cumulative Convictions and Sentence 1. Submissions of the Parties 321. In his Eighth Ground of Appeal, Kanu submits that the Trial Chamber erred in law in imposing a global sentence of fĳifty years. He argues that the term of

478 Sentencing Judgment, para. 23. 479 Deronjić Trial Judgment, para. 106–107; Nikolić Appeal Judgment, para. 61; Stakić Appeal Judgment, para. 411; Krajisnik Trial Judgment, para. 1140; Bralo Trial Judgment, para. 27. 480 Nikolić Appeals Judgment, para. 61. 481 Ibid., at para. 66. 482 AFRC Sentencing Judgment, paras. 44, 53, 57, 72, 75, 82, 85, 96, 107, 112. 1918 part iv imprisonment shows that the cumulative convictions entered against him were not discounted for sentencing purposes483 and that the sentence imposed on him reflects the number of convictions rather than the underlying criminal conduct.484 Kanu further submits that a more appropriate penalty that reflects his criminal conduct and not the number of convictions should replace the sentence imposed on him. In response, the Prosecution contends that the Trial Chamber was under no obligation to discount the cumulative convictions entered against Kanu for sentencing purposes.485

2. Discussion 322. The Trial Chamber stated that the Special Court Statute permits it to impose a single sentence. It added that in exercising its discretion whether to impose a single sentence, “[t]he governing criteria is that the fĳinal or aggregate sentence should reflect the totality of the culpable conduct, or generally, that it should reflect the gravity of the offfences and the overall culpability of the offfender, so that it is both just and appropriate.”486 The Trial Chamber then explained that “[i]n the present case the Trial Chamber fĳinds it is appropriate to impose a global sentence for the multiple convictions in respect of Brima, Kamara and Kanu.”487 323. In the Sentencing Judgment, the Trial Chamber enumerated all criminal acts for which Kanu was found responsible under Article 6(1) of the Statute and also referred to the gravity of the criminal conduct of his subordinates throughout Bombali District, Freetown and other parts of the Western Area for which he was found liable under Article 6(3) of the Statute. The emphasis placed on Kanu’s criminal acts demonstrates that the Trial Chamber ascertained the gravity of the offfences in light of the individual criminal acts rather than in light of the multiple Counts for which Kanu was convicted. This approach ensured that the sentence encompasses Kanu’s, overall, criminal conduct. 324. The Appeals Chamber fĳinds that in imposing sentence, the Trial Chamber considered the overall criminal conduct of Kanu, rather than the number of convictions entered against him. 325. The Appeals Chamber thus fĳinds no error in the Trial Chamber’s approach that would warrant its interference with the sentence imposed. Ground Eight of Kanu’s Appeal therefore fails.

483 Kanu Appeal Brief, para. 8.1. 484 Ibid., at para. 8.3. 485 Prosecution Response Brief, para. 3.56. 486 AFRC Sentencing Judgment, para. 12. 487 Ibid., at para. 12. judgments 1919

G. Sentence: General Conclusion 326. Having considered all the Grounds of Appeal relating to the Sentencing Judgment of the Trial Chamber, the Appeals Chamber is satisfĳied that the Trial Chamber has overall properly exercised its discretion within the provisions of the Statute of the Court. 327. Article 19(2) of the Statute states as follows: “In imposing the sentences, the Trial Chamber should take into account such factors as the gravity of the offfence and the individual circumstances of the convicted person” (emphasis added). 328. The Trial Chamber, in applying this provision to the case, had this to say: “Brima, Kamara and Kanu have been found responsible for some of the most heinous, brutal and atrocious crimes ever recorded in human history. Innocent civilians – babies, children, men and women of all ages – were murdered by being shot, hacked to death, burned alive, beaten to death. Women and young girls were gang raped to death. Some had their genitals mutilated by the insertion of foreign objects. Sons were forced to rape mothers, brothers were forced to rape sisters. Pregnant women were killed by having their stomachs slit open and the foetus removed merely to settle a bet amongst the troops as to the gender of the foetus. Men were disembowelled and their intestines stretched across a road to form a barrier. Human heads were placed on sticks on either side of the road to mark such barriers. Hacking offf the limbs of innocent civilians was commonplace. The victims were babies, young children and men and women of all ages. Some had one arm amputated, others lost both arms. For those victims who survived an amputation, life was instantly and forever changed into one of dependence. Most were turned into beggars unable to earn any other living and even today cannot perform even the simplest of tasks without the help of others. Children were forcibly taken away from their families, often drugged and used as child soldiers who were trained to kill and commit other brutal crimes against the civilian population. Those child soldiers who survived the war were robbed of a childhood and most of them lost the chance of an education.”488 The Appeals Chamber is, therefore, satisfĳied that having regard to that fĳinding, the Trial Chamber was justifĳied in imposing a prison sentence of fĳifty (50) years on the Appellant Alex Tamba Brima, forty-fĳive (45) years on the Appellant Brima Bazzy Kamara, and fĳifty (50) years on Santigie Borbor Kanu. 329. The Appeals Chamber fĳinds no cause to interfere with the exercise by the Trial Chamber of its discretion in sentencing the Appellants. 330. In the result the Appellants Appeal against sentence fails.

488 Ibid., at para. 34. 1920 part iv

X. Disposition

For the foregoing reasons, THE APPEALS CHAMBER PURSUANT to Article 20 of the Statute and Rule 106 of the Rules of Procedure and Evidence; NOTING the written submissions of the Parties and their oral arguments presented at the hearings on 12, 13 and 14 November 2007; SITTING in open session; UNANIMOUSLY; WITH RESPECT TO THE PROSECUTION’S GROUNDS OF APPEAL; HOLDS in regard to Grounds One and Three, that as the Appellants have been convicted and sentenced to terms of imprisonment of fĳifty (50) years and forty- fĳive (45) years for crimes committed under Article 6(1) or Article 6(3) of the Statute, in Bombali District and in the Western Area, it becomes an academic exercise and also pointless to adjudicate further on Grounds One and Three of the Prosecution’s Appeal; ALLOWS the Fourth Ground of Appeal relating to joint criminal enterprise but sees no need to make further factual fĳindings or to remit the case to the Trial Chamber for that purpose, having regard to the interest of justice; ALLOWS Ground Seven relating to forced marriage but declines to enter a further conviction on Count 8 of the Indictment; ALLOWS Ground Nine relating to cumulative convictions, but declines to enter such convictions for responsibility found under Articles 6(1) and 6(3) of the Statute, having regard to the global sentences imposed which are adequate; DISMISSES Grounds Two, Five, Six and Eight; WITH RESPECT TO BRIMA’S GROUNDS OF APPEAL; NOTES that Grounds Two, Three, Seven and Eight have been abandoned; DISMISSES the rest of his Grounds, namely Grounds One, Four, Five, Six, Nine, Ten, Eleven and Twelve and AFFIRMS the sentence of fĳifty (50) years imprisonment imposed by the Trial Chamber; WITH RESPECT TO KAMARA’S GROUNDS OF APPEAL; DISMISSES all of Kamara’s Grounds of Appeal; judgments 1921

REVISES the Trial Chamber’s Disposition in respect of Counts 9, 12 and 13 by substituting Article 6(3) for Article 6(1) of the Statute and AFFIRMS the sentence of forty-fĳive (45) years imprisonment imposed by the Trial Chamber; WITH RESPECT TO KANU’S GROUNDS OF APPEAL; DISMISSES all of Kanu’s Grounds of Appeal and AFFIRMS the sentence of fĳifty (50) years imprisonment imposed by the Trial Chamber; ORDERS that this Judgment be enforced immediately pursuant to Rule 102 of the Rules of Procedure and Evidence. Delivered on 22 February 2008 at Freetown, Sierra Leone.

Justice George Gelaga King, Justice Emmanuel Ayoola Justice Renate Winter Presiding

Justice Raja N. Fernando Justice Jon M. Kamanda 1922 part iv

XI. Annex A: Procedural History

1. The Further Amended Consolidated Indictment on 18 February 2005 (the “Indictment”), charged the three convicted persons with seven crimes against humanity, namely: extermination; murder; rape; sexual slavery and other forms of sexual violence; “Other Inhumane Acts”; and enslavement (Counts 3, 4, 6, 7, 8, 11, and 13, respectively). The Indictment further charged the three convicted persons with six 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; outrages upon personal dignity; and pillage (Counts 1, 2, 5, 10, 9, and 14, respectively). In addition, the Indictment charged the three convicted persons with other serious violations of international humanitarian law, namely: 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). 2. The Trial Chamber on 20 June 2007, convicted Brima, Kamara and Kanu of the following: acts of terrorism; collective punishments; extermination; murder; violence to life, health and physical or mental well-being of persons, in particular murder and mutilation; outrages upon personal dignity; conscripting children under the age of 15 years into armed groups and/or using them to participate actively in hostilities; enslavement; pillage; and rape (Counts 1, 2, 3, 4, 5, 10, 9, 12, 13, 14, and 6).489 The Trial Chamber found Brima and Kamara not guilty of “Other Inhumane Acts,” a crime against humanity, under Article 2(1) of the Statute (Count 11).490 The Trial Chamber did not enter convictions under Count 7 for sexual slavery and any other form of sexual violence because Count 7 violated the rule against duplicity.491 Finally, the Trial Chamber did not enter a conviction under Count 8 for “Other Inhumane Acts,” a crime against humanity, under Article 2.i of the Statute, because there was no evidence of sexual violence as an inhumane act which was not subsumed under rape (Count 6) or outrages upon personal dignity, specifĳically sexual slavery (Count 9).492 3. On 19 July 2007, the Appellants were sentenced to terms of imprisonment for all the Counts of which they were found guilty. Alex Tamba Brima and Santigie Borbor Kanu were each sentenced to a single term of imprisonment of fĳifty (50) years, and Brima Bazzy Kamara to a single term of imprisonment of forty-fĳive (45) years.

489 Ibid., at paras. 2113, 2117, 2121. 490 Ibid., at paras. 2115, 2119. 491 Ibid., at para. 95. 492 Ibid., at paras. 2116, 2120, 2123. judgments 1923

4. On 13 July 2007, the Defence fĳiled a motion requesting an extension of time of four months to fĳile notices of appeal pursuant to Rule 116 of the Rules.493 In the motion it was argued that the delay in appointing counsel for the three Appellants constituted “good cause” for making the request. The Appeals Chamber denied the extension on 25 July 2007, holding that the defence counsel did not have locus standi to make the joint request.494 5. On 2 August 2007, Notices of Appeal were fĳiled by the Prosecution and the Defence495 along with a Joint Defence and Prosecution Motion for an Extension of Time for the Filing of Appeal Briefs.496 The Appeals Chamber granted the Motion for Extension of Time and ordered both parties to fĳile their Appeal Briefs no later than 13 September 2007.497 6. Also on 2 August 2007, the Prosecution fĳiled a Motion for Voluntary Recusal or Disqualifĳication of Hon. Justice Robertson, on the ground of actual or perceived bias.498 After granting Hon. Justice Robertson time extensions to respond to the motion,499 the Appeals Chamber rendered its decision on 3 October 2007, fĳinding that the Motion for Recusal lapsed in view of the voluntary resignation of Hon. Justice Robertson on 14 September 2007.500 7. The Prosecution also fĳiled a Motion on 2 August 2007, requesting an extension of the page limit for its consolidated Appeal Brief from 170 pages to 250 pages.501 On 24 August 2007, the Pre-Hearing Judge Hon. Justice Winter, authorised the

493 Prosecutor v. Brima, Kamara and Kanu, SCSL-2004-16-A, Urgent Joint Defence Request for Extension of Time Limit Pursuant to Rule 116 for Filing of Notice of Appeal and Appeal Submissions, 13 July 2007. 494 Prosecutor v. Brima, Kamara and Kanu, SCSL-2004-16-A, Decision on Request for Extension of Time Pursuant to Rule 116 of the Rules of Procedure and Evidence, 25 July 2007. 495 Prosecutor v. Brima, Kamara and Kanu, SCSL-2004-16-A, Kamara Defence Notice of Appeal, 2 August 2007; Prosecutor v. Brima, Kamara and Kanu, SCSL-2004-16-A, Public Brima Defence Notice of Appeal 2 August 2007; Prosecutor v. Brima, Kamara and Kanu, SCSL-2004-16-A, Kanu’s Notice and Grounds of Appeal, 2 August 2007; Prosecutor v. Brima, Kamara and Kanu, SCSL-2004-16-A, Public Prosecution’s Notice of Appeal, 2 August 2007. 496 Prosecutor v. Brima, Kamara and Kanu, SCSL-2004-16-A, Urgent Joint Defence and Prosecution Motion for an Extension of Time for the Filing of Appeal Briefs, 2 August 2007. 497 Prosecutor v. Brima, Kamara and Kanu, SCSL-2004-16-A, Decision on Urgent Joint Defence and Prosecution Motion for an Extension of Time for the fĳiling of Appeals Briefs, 10 August 2007. 498 Prosecutor v. Brima, Kamara and Kanu, SCSL-2004-16-A, Prosecution Motion for Voluntary Recusal or Disqualifĳication of Justice Robertson, 2 August 2007. 499 Prosecutor v. Brima, Kamara and Kanu, SCSL-2004-16-A, Public Order Extending Time for Filing a Response to ‘Prosecution Motion for Voluntary Recusal or Disqualifĳication of Justice Robertson,’ 16 August 2007; Prosecutor v. Brima, Kamara and Kanu, SCSL-2004-16-A, Public Order Extending Time for Filing a Response to ‘Prosecution Motion for Voluntary Recusal or Disqualifĳication of Justice Robertson,’ 28 August 2007. 500 Prosecutor v. Brima, Kamara and Kanu, SCSL-2004-16-A, Public Decision on Prosecution Motion for Voluntary Recusal or Disqualifĳication of Justice Robertson, 28 October 2007. 501 Prosecutor v. Brima, Kamara and Kanu, SCSL-2004-16-A, Urgent Prosecution Motion for an Extension of the Page Limit for its Appeal Brief, 2 August 2007. 1924 part iv

Prosecution to fĳile an Appeal Brief of no more than 250 pages, and extensions of no more than 20 pages each for the Appeal Briefs of Brima, Kamara and Kanu.502 8. The Prosecution and the Appellants fĳiled their respective appeal briefs on 13 September 2007. The response briefs of the Parties were fĳiled on 4 October 2007,503 and replies were submitted on 9 October 2007.504 9. Oral arguments of the Parties were heard by the Appeals Chamber on 12, 13 and 14 November 2007.

502 Prosecutor v. Brima, Kamara and Kanu, SCSL-2004-16-A, Decision on Urgent Prosecution Motion for an Extension of the Page Limit for its Appeal Brief, 24 August 2007. 503 Prosecutor v. Brima, Kamara and Kanu, SCSL-2004-16-A, Kamara Response to the Prosecution Appeal Brief, 4 October 2007; Prosecutor v. Brima, Kamara and Kanu, SCSL-2004-16-A, Respondent’s Submissions – Kanu Defence, 4 October 2007; Prosecutor v. Brima, Kamara and Kanu, SCSL-2004- 16-A, Brima Response to Prosecution’s Appeal Brief, 4 October 2007; Prosecutor v. Brima, Kamara and Kanu, SCSL-2004-16-A, Response Brief of the Prosecution, 4 October 2007. 504 Prosecutor v. Brima, Kamara and Kanu, SCSL-2004-16-A, Submissions in Reply – Kanu Defence, 9 October 2007; Prosecutor v. Brima, Kamara and Kanu, SCSL-2004-16-A, Reply Brief of the Prosecution, 9 October 2007. judgments 1925

XII. Annex B: Glossary

A. Cases Cited 1. Special Court for Sierra Leone Prosecution v. Brima, Fofana and, Kondewa, SCSL-03-11-PT, Trial Chamber I, Decision on the Preliminary Defence Motion on the Lack of Personal Jurisdiction Filed on Behalf of Accused Fofana, 3 March 2004. Prosecutor v. Brima, Kamara and Kanu, SCSL-04-16-PT-046, Decision and Order on Defence Preliminary Motion on Defects in the Form of the Indictment, 1 April 2004 [Kamara Form of the Indictment Decision]. Prosecutor v. Norman, Fofana and Kondewa, SCSL-2004-14-AR72(E), Appeals Chamber, Decision on Preliminary Motion Based on Lack of Jurisdiction (Child Recruitment), 31 May 2004 [Norman Child Recruitment Decision]. Prosecutor v. Brima, Kamara and Kanu, SCSL-04-16-T Trial Chamber, Decision on Defence Motions for Judgment of Acquittal pursuant to Rule 98, 31 March 2006 [Rule 98 Decision]. Prosecutor v. Brima, Kamara and Kanu, SCSL-04-16-T, Special Court for Sierra Leone, Trial Chamber, Decision on Defence Motions for Judgment of Acquittal Pursuant to Rule 98, Separate Concurring Opinion of Hon. Justice Julia Sebutinde, 31 March 2006 [Sebutinde Rule 98 Opinion]. Prosecutor v. Brima, Kamara, and Kanu, SCSL-04-16-T, Special Court for Sierra Leone, Judgment, Trial Chamber II, 20 June 2007 [AFRC Trial Judgment]. Prosecutor v. Brima, Kamara and Kanu, SCSL-04-16-T, Special Court for Sierra Leone, Judgment, Trial Chamber II, 20 June 2007, Partly Dissenting Opinion of Justice Doherty on Count 7 (Sexual Slavery) and Count 8 (‘Forced Marriages’) [Doherty Partly Dissenting Opinion]. Prosecutor v. Brima, Kamara and Kanu, SCSL-04-16-T, Special Court for Sierra Leone, Judgment, Trial Chamber II, 20 June 2007, Separate Concurring Opinion of Justice Julia A. Sebutinde Appended to Judgment Pursuant to Rule 88(C) [Sebutinde Separate Concurring Opinion]. Prosecutor v. Brima, Kamara and Kanu, SCSL-2004-16-T, Corrigendum to Judgment Filed on 21 June 2007, 19 July 2007 [Corrigendum to AFRC Trial Judgment]. Prosecutor v. Brima, Kamara and Kanu, SCSL-04-16-T, Special Court for Sierra Leone, Sentencing Judgment, Trial Chamber II, 19 July 2007 [AFRC Sentencing Judgment]. 1926 part iv

2. The International Criminal Tribunal for the former Yugoslavia Prosecutor v. Aleksovski, IT-95-14/1-A, Appeals Chamber, Judgment, 24 March 2000 [Aleksovski Appeal Judgment]. Prosecutor v. Babić, IT-03-72-A, Appeals Chamber, Judgment on Sentencing Appeal, 18 July 2005 [Babić Sentencing Appeal Judgment]. Prosecutor v. Blagojević and Jokic, IT-02-60-T, International Criminal Tribunal for the former Yugoslavia, Trial Chamber, Judgment, 17 January 2005 [Blagojevic Trial Judgment]. Prosecutor v. Blagojević and Jokic, IT-02-60-A, Appeals Chamber, Judgment, 9 May 2007 [Blagojević Appeal Judgment]. Prosecutor v. Blaškić, IT-95-14, International Criminal Tribunal for the former Yugoslavia, Trial Chamber, Judgment, 3 March 2000 [Blaškić Trial Judgment]. Prosecutor v. Blaškić, IT-95-14-A, International Criminal Tribunal for the former Yugoslavia, Appeals Chamber, Judgment, 29 July 2004 [Blaškić Appeal Judgment]. Prosecutor v. Bralo, IT-95-17-S, International Criminal Tribunal for the former Yugoslavia, Trial Chamber, Sentencing Judgment, 7 December 2005 [Bralo Sentencing Appeal Judgment]. Prosecutor v. Bralo, IT-95-17-A, International Criminal Tribunal for the former Yugoslavia, Appeals Chamber, Judgment on Sentencing Appeal, 2 April 2007 [Bralo Sentencing Appeal Judgment]. Prosecutor v. Brđanin, IT-99-36, Trial Chamber, Decision on Motion to Dismiss Indictment, 5 October 1999 [Brđanin Decision on Motion to Dismiss Indictment]. Prosecutor v. Brđanin, ICTY-99-36-1, International Criminal Tribunal for the former Yugoslavia, Trial Chamber, Decision on Objections by Momir Talić to the Form of the Amended Indictment, 20 February 2001 [Brđanin Form of the Indictment Decision]. Prosecutor v. Brđanin, IT-99-36-A, International Criminal Tribunal for the former Yugoslavia, Appeals Chamber, Judgment, 3 April 2007 [Brđanin Appeal Judgment]. Prosecutor v. Delalic, Mucic, Delic, and Landžo, IT-96-21-T, International Criminal Tribunal for the former Yugoslavia, Trial Chamber, Judgment, 16 November 1998 [Čelebići Trial Judgment]. Prosecutor v. Delalic, Mucic, Delic, and Landžo, IT-96-21-A, International Criminal Tribunal for the former Yugoslavia, Appeals Chamber, Judgment, 20 February 2001 [Čelibići Appeal Judgment]. judgments 1927

Prosecutor v. Deronjić, ICTY-02-61-S, Trial Chamber, Sentencing Judgment, 30 March 2004 [Deronjić Sentencing Judgment]. Prosecutor v. Deronjić, IT-02-61-A, International Criminal Tribunal for the former Yugoslavia, Appeals Chamber, Judgment on Sentencing Appeal, 20 July 2005 [Deronjić Appeal Judgment]. Prosecutor v. Galić, IT-98-29-T, International Criminal Tribunal for the former Yugoslavia, Trial Chamber, Judgment and Opinion, 5 December 2003 [Galić Trial Judgment]. Prosecutor v. Galić, IT-98-29-A, International Criminal Tribunal for the former Yugoslavia, Appeals Chamber, Judgment, 30 November 2006 [Galić Appeal Judgment]. Prosecutor v. Halilović, IT-01-48-T, International Criminal Tribunal for the former Yugoslavia, Trial Chamber, Judgment, 16 November 2005 [Halilović Trial Judgment]. Prosecutor v. Haradinaj, IT-04-84, International Criminal Tribunal for the former Yugoslavia, Trial Chamber, Decision on Motion to Amend the Indictment and on Challenges to the Form of the Amended Indictment, 25 October 2006 [Haradinaj Form of the Indictment Decision]. Prosecutor v. Jokić, IT-01-42/1-A, International Criminal Tribunal for the former Yugoslavia, Appeals Chamber, Judgment on Sentencing Appeal, 30 August 2005 [Jokić Sentencing Appeal Judgment]. Prosecutor v. Kordić & Čerkez, IT-95-14/2-T, International Criminal Tribunal for the former Yugoslavia, Trial Chamber, Judgment, 26 February 2001 [Kordić Trial Judgment]. Prosecutor v. Kordić & Čerkez, IT-95-14/2-A, International Criminal Tribunal for the former Yugoslavia, Appeals Chamber, Judgment, 17 December 2004 [Kordić Appeal Judgment]. Prosecutor v. Krajišnik, IT-00-39 & 40, International Criminal Tribunal for the former Yugoslavia, Trial Chamber, Decision Concerning Preliminary Motion on the Form of the Indictment, 1 August 2000 [Krajišnik Decision on Form of the Indictment]. Prosecutor v. Krnojelac, IT-97-25, International Criminal Tribunal for the former Yugoslavia, Trial Chamber, Decision on the Defence Preliminary Motion on the Form of the Indictment, 24 February 1999 [Krnojelac Form of the Indictment Decision]. Prosecutor v. Krnojelac, IT-97-25, International Criminal Tribunal for the former Yugoslavia, Trial Chamber, Decision on Form of Second Amended Indictment, 11 May 2000 [Krnojelac Decision on Form of Second Amended Indictment]. 1928 part iv

Prosecutor v. Krnojelac, IT-97-25, International Criminal Tribunal for the former Yugoslavia, Trial Chamber, Judgment, 15 March 2002 [Krnojelac Trial Judgment]. Prosecutor v. Krnojelac, IT-97-25-A, International Criminal Tribunal for the former Yugoslavia, Appeals Chamber, Judgment, 17 September 2003 [Krnojelac Appeal Judgment]. Prosecutor v. Krstić, IT-98-33-T, International Criminal Tribunal for the former Yugoslavia, Trial Chamber, Judgment, 2 August 2001 [Krstić Trial Judgment]. Prosecutor v. Kunarać et al., IT-96-23 & IT-96-23/1-A, International Criminal Tribunal for the former Yugoslavia, Appeals Chamber, Judgment, 12 June 2002 [Kunarać Appeal Judgment]. Prosecutor v. Kupreškić et al., IT-95-16-A, International Criminal Tribunal for the former Yugoslavia, Appeal Chamber, Judgment, 23 October 2001 [Kupreškić Appeal Judgment]. Prosecutor v. Kupreškić et al., IT-95-16-T, International Criminal Tribunal for the former Yugoslavia, Trial Chamber, Judgment, 14 January 2000 [Kupreškić Trial Judgment]. Prosecutor v. Kvočka et al., IT-98-30-PT, International Criminal Tribunal for the former Yugoslavia, Trial Chamber, Decision on Defence Preliminary Motions on the Form of the Indictment, 12 April 1999 [Kvoćka Form of the Indictment Decision]. Prosecutor v. Kvočka et al., IT-98-30/1-T, International Criminal Tribunal for the former Yugoslavia, Trial Chamber, Judgment, 2 November 2001 [Kvočka Trial Judgment]. Prosecutor v. Kvočka et al., IT-98-30/1-A, International Criminal Tribunal for the former Yugoslavia, Appeals Chamber, Judgment, 28 February 2005 [Kvočka Appeal Judgment]. Prosecutor v. Limaj et al., IT-03-66-T, International Criminal Tribunal for the former Yugoslavia, Trial Chamber, Judgment, 30 November 2005 [Limaj Trial Judgment]. Prosecutor v. Naletilić and Martinović, IT-98-34, International Criminal Tribunal for the former Yugoslavia, Trial Chamber, Decision on Prosecution Motion to Amend Count Five of the Indictment, 28 November 2000 [Naletilić Decision on Motion Amend Indictment]. Prosecutor v. Naletilić and Martinović, IT-98-34-T, International Criminal Tribunal for the former Yugoslavia, Trial Chamber, Judgment, 31 March 2003 [Naletilić Trial Judgment]. judgments 1929

Prosecutor v. Naletilić and Martinović, IT-98-34-A, International Criminal Tribunal for the former Yugoslavia, Appeals Chamber, Judgment, 3 May 2006 [Naletilić Appeal Judgment]. Prosecutor v. Momir Nikolić, IT-02-60/1-A, International Criminal Tribunal for the former Yugoslavia, Appeals Chamber, Judgment on Sentencing Appeal, 8 March 2006 [Nikolić Sentencing Appeal Judgment]. Prosecutor v. Orić, IT-03-68-T, International Criminal Tribunal for the former Yugoslavia, Trial Chamber, Judgment, 30 June 2006 [Orić Trial Judgment]. Prosecutor v. Simić, IT-95-9-T, International Criminal Tribunal for the former Yugoslavia, Trial Chamber, Judgment, 17 October 2003 [Simić Trial Judgment]. Prosecutor v. Simić, IT-95-9-A, International Criminal Tribunal for the former Yugoslavia, Appeals Chamber, Judgment, 28 November 2006 [Simić Appeal Judgment]. Prosecutor v. Stanković, IT-96-23/2-PT, International Criminal Tribunal for the former Yugoslavia, Trial Chamber, Decision on the Defence’s Preliminary Motion on the Form of the Second Amended Indictment, 2 April 2003 [Stanković Form of the Indictment Decision]. Prosecutor v. Stakić, IT-97-24-A, International Criminal Tribunal for the former Yugoslavia, Appeals Chamber, Judgment, 22 March 2006 [Stakić Appeal Judgment]. Prosecutor v. Tadić, IT-94-1, International Criminal Tribunal for the former Yugoslavia, Trial Chamber, Opinion and Judgment, 7 May 1997 [Tadić Trial Judgment]. Prosecutor v. Tadić, IT-94-1-A, International Criminal Tribunal for the former Yugoslavia, Appeals Chamber, Judgment, 15 July 1999 [Tadić Appeal Judgment]. Prosecutor v. Vasiljević, IT-98-32-T, International Criminal Tribunal for the former Yugoslavia, Trial Chamber, Judgment, 29 November 2002 [Vasiljević Trial Judgment]. Prosecutor v. Vasiljević, IT-98-32-A, International Criminal Tribunal for the former Yugoslavia, Appeals Chamber, Judgment, 25 February 2004 [Vasiljević Appeal Judgment].

3. The International Criminal Tribunal for Rwanda Prosecutor v. Akayesu, ICTR-96-4-T, International Criminal Tribunal for Rwanda, Trial Chamber, Judgment, 2 September 1998 [Akayesu Trial Judgment]. 1930 part iv

Prosecutor v. Bagilishema, ICTR-95-1A-A, International Criminal Tribunal for Rwanda, Appeals Chamber, Appeal Judgment, 3 July 2002 [Bagilishema Appeal Judgment]. Prosecutor v. Bizimungu, ICTR-99-50-I, International Criminal Tribunal for Rwanda, Trial Chamber, Decision on Prosecutor’s Request for Leave to File an Amended Indictment, 6 October 2003. Gacumbitsi v. Prosecutor, ICTR-2001-64, International Criminal Tribunal for Rwanda, Trial Chamber, Judgment, 17 June 2004 [Gacumbitsi Trial Judgment]. Gacumbitsi v. Prosecutor, ICTR-2001-64-A, International Criminal Tribunal for Rwanda, Appeals Chamber, Judgment, 7 July 2006 [Gacumbitsi Appeal Judgment]. Prosecutor v. Kajelijeli, ICTR-98-44A-T, International Criminal Tribunal for Rwanda, Trial Chamber, Judgment and Sentence, 1 December 2003 [Kajelijeli Trial Judgment]. Prosecutor v. Kajelijeli, ICTR-98-44A-A, International Criminal Tribunal for Rwanda, Appeals Chamber, Judgment, 23 May 2005 [Kajelijeli Appeal Judgment]. Prosecutor v. Kayishema and Ruzindana, ICTR-95-1-T, International Criminal Tribunal for Rwanda, Trial Chamber, Judgment, 21 May 1999 [Kayishema Trial Judgment]. Prosecutor v. Musema, ICTR-96-13-A, International Criminal Tribunal for Rwanda, Trial Chamber, Judgment and Sentence, 27 January 2000 [Musema Trial Judgment]. Prosecutor v. Niyitegeka, ICTR-96-14-T, International Criminal Tribunal for Rwanda, Trial Chamber, Judgment and Sentence, 16 May 2003, [Niyitegeka Trial Judgment]. Prosecutor v. Niyitegeka, ICTR-96-14, International Criminal Tribunal for Rwanda, Appeals Chamber, Judgment, 9 July 2004 [Niyitegeka Appeal Judgment]. Prosecutor v. Ntagerura et al., ICTR-99-46-T, International Criminal Tribunal for Rwanda, Trial Chamber, Judgment and Sentence, 25 February 2004 [Ntagerura Trial Judgment]. Prosecutor v. Ntagerura et al., ICTR-99-46-A, International Criminal Tribunal for Rwanda, Appeals Chamber, Judgment, 7 July 2005 [Ntagerura Appeal Judgment]. The Prosecutor v. Ntakirutimana, ICTR-96-10-A & ICTR-96-17-A, International Criminal Tribunal for Rwanda, Appeals Chamber, Judgment, 13 December 2004 [Ntakirutimana Appeal Judgment]. judgments 1931

Prosecutor v. Rutaganda, ICTR-96-3-T, International Criminal Tribunal for Rwanda, Trial Chamber, Judgment and Sentence, 6 December 1999 [Rutaganda Trial Judgment]. Prosecutor v. Rutaganda, ICTR-96-3-A, International Criminal Tribunal for Rwanda, Appeals Chamber, Judgment, 26 May 2003 [Rutaganda Appeal Judgment]. Prosecutor v. Semanza, ICTR-97-20-T, International Criminal Tribunal for Rwanda, Trial Chamber, Judgment and Sentence, 15 May 2003 [Semanza Trial Judgment].

4. Other Court Decisions Cotterill v. Lempriere [1890] L. R. 24 Q.B.D. 634; 62 L.T. 695. R. v. Thompson [1914] 2 K.B. 99. R. v. Surrey JJ. ex p. Witherick [1932] 1 K.B. 450. R. v. Disney [1933] 2 K.B. 138. R. v. Jones (1974), 59 Cr.App.R. 120. R. v. Johnson [1945] K.B. 419, 424–425. Lansana and Eleven Others v. R. [1971] 186 ALR S.L. United States v. Robinson, 651 F.2d 1188 (6th Cir. 1981). United States v. Aguilar, 756 F.2d 1418 (9th Cir. 1985). United States v. Sturdivant, 244 F.3d 71 (2d Cir. 2001). United States v. Ramirez-Martinez, 273 F.3d 903 (9th Cir. 2001).

B. Special Court Instruments Security Resolution 1315, UNSCOR, 4186th Mtg., UN DOC. S/RES/1315 (14 August 2000). Rules of Procedure and Evidence, adopted on 16 January 2002, as amended on 7 March 2003, 1 August 2003, 30 October 2003, 14 March 2004, 29 May 2004, 14 may 2005, 13 May 2006, 24 November 2006, 14 May 2007 and 17 November 2007 [“Rules of the Special Court”]. Statute of the Special Court for Sierra Leone, annexed to the Agreement Between the Untied Nations and the Government of Sierra Leone on the Establishment of a Special Court for Sierra Leone, United Nations and Sierra Leone, 16 January 2002, 2178 U.N.T.S. 138 [“Statute of the Special Court”]. 1932 part iv

Agreement between the United Nations and the Government of Sierra Leone on the Establishment of a Special Court for Sierra Leone, United Nations and Sierra Leone, 16 January 2002, 2178 U.N.T.S. 138 [Special Court Agreement].

C. International Legal Instruments Charter of the International Military Tribunal, London, 8 August 1945. Control Council Law No. 10, Berlin, 20 December 1945. Charter of the International Military Tribunal of the Far East, Tokyo, 19 January, 1946. Statute of the International Criminal Tribunal for the former Yugoslavia. Statute of the International Criminal Tribunal for Rwanda. Rome Statute of the International Criminal Court.

D. Secondary Sources Charles Wright and Arthur Miller, Federal Practice and Procedure, (3d ed.). PART V

MISCELLANEOUS

LIST OF EXHIBITS ADMITTED AT TRIAL Exhibit No. Date admitted Admitted Title of exhibit through P1 09/03/2005 TF1-023 (Confĳidential) P2 09/03/2005 TF1-023 (Confĳidential) P3 09/03/2005 TF1-023 (Confĳidential) P4 16/05/2005 TF1-334 Administration of Sierra Leone (AFRC), Proclamation 1997 P5.1 16/05/2005 TF1-334 AFRC Decree Number 4 Administration of Sierra Leone (AFRC) Proclamation, 14 July 1997 P5.2 16/05/2005 TF1-334 Armed Forces Revolutionary Council Decree. Establishment of Offfĳice of Principal Liaison Offfĳicer, 1997, 10 July 1997 P6 17/05/2005 TF1-334 Sierra Leone Gazette, 4 September 1997 P7 17/05/2005 TF1-334 Sierra Leone Gazette, 18 September 1997 P8 17/05/2005 TF1-334 Constitution of Sierra Leone, 1991 (amendment) Decree (1997) P9 17/05/2005 TF1-334 Public Notices P10 17/05/2005 TF1-334 Decree P11 17/05/2005 TF1-334 Map of the Western Area P12 17/05/2005 TF1-334 (Confĳidential) P13 18/05/2005 TF1-334 (Confĳidential) P14 18/05/2005 TF1-334 Map marked by Witness TF1-334 P 15 23/05/2005 TF1-334 (Confĳidential) P 16 23/05/2005 TF1-334 (Confĳidential) P 17 24/05/2005 TF1-334 Map of Bombali District marked by the Witness TF1-334 P 18 13/06/2005 TF1-334 Map of Freetown marked by Witness TF1-334 P 19 14/06/2005 TF1-334 Map of Freetown marked by the Witness TF1-334 P 20 15/06/2005 TF1-334 (Confĳidential) 1936 part v

P 21 15/06/2005 TF1-334 (Confĳidential) P 22 15/06/2005 TF1-334 Map of Port Loko District marked by Witness TF1-334 P23a 23/06/2005 TF1-004 Interofffĳice Memorandum – Witness Payment Policy – Payments made to TF1-004 P23b 23/06/2005 TF1-004 Interofffĳice Memorandum – Witness Payment Policy – Payments made to TF1-004 P 24 24/06/2005 TF1-122 CID Offfĳice Station Diary, opened on 13 January 1998 and closed on 7 February 1998 P 25 04/07/2005 TF1-081 (Confĳidential) P 26 04/07/2005 TF1-272 (Confĳidential) P 27 05/07/2005 TF1-074 (Confĳidential) P 28 07/07/2005 TF1-169 (Confĳidential) P 29 06/07/2005 TF1-169 (Confĳidential) P30 (a) 16/09/2005 TF-167 Map of Sierra Leone P30 (b) 16/09/2005 TF-167 Map of Freetown P30 (c) 16/09/2005 TF-167 Map of Freetown (detailed) P31 03/10/2005 Zainab Curriculum Vitae of Mrs. Zainab Bangura Bangura P32 04/10/2005 Zainab Expert Report of on phenomenon Bangura of ‘forced marriages’ in the context of the conflict in Sierra Leone and, more specifĳically, in the context of the trials against the RUF and AFRC Accused only, May 2005, prepared by Zainab Bangura and Christina T. Solomon P33 05/10/2005 TF1-296 (Confĳidential) P34 07/10/2005 TF1-046 Minutes of the Supreme Council Emergency Meeting, 16 August 1997 P35 12/10/2005 TF1-301 Curriculum Vitae of Colonel Richard Iron P36 14/10/2005 TF1-301 Military Expert Witness Report on the Armed Forces Revolutionary Council (AFRC) of Sierra Leone, August 2005 exhibits admitted at trial 1937

P 37 18/11/2005 92bis Security Council Resolution 1132 (1997) P 38 18/11/2005 92bis Security Council Resolution 1181 (1998) P 39 18/11/2005 92bis Security Council Resolution 1270 (1999) P 40 18/11/2005 92bis Security Council Resolution 1306 (2000) P 41 18/11/2005 92bis 4th Report of the UNSG on Sierra Leone (S/1998/249) P 42 18/11/2005 92bis 5th Report of the UNSG on Sierra Leone (S/1998/486) P 43 18/11/2005 92bis Report of UNOMSIL, 1st Progress Report (S/1998/750) P 44 18/11/2005 92bis Report of UNOMSIL, 2nd Progress Report (S/1998/960) P 45 18/11/2005 92bis Report of UNOMSIL, 3rd Progress Report (S/1998/1176) P 46 18/11/2005 92bis Report of UNOMSIL, 5th Progress Report (S/1999/237) P 47 18/11/2005 92bis Report of UNOMSIL, 6th Progress Report (S/1999/645) P 48 18/11/2005 92bis UN Offfĳice for the Coordination of Humanitarian Afffairs, Sierra Leone Humanitarian Situation Report, 5 June 1997 P 49 18/11/2005 92bis UN Offfĳice for the Coordination of Humanitarian Afffairs, Sierra Leone Humanitarian Situation Report, 14 July 1997 P 50 18/11/2005 92bis Human Rights Assessment Mission to Freetown 25 January and 1 to 4 February 1999, Findings and Recommendations P 51 18/11/2005 92bis Report on Atrocities Committed Against the Sierra Leone Population, UNHCR Conakry Branch Offfĳice, 28 January 1999 1938 part v

P 52 18/11/2005 92bis Human Rights Watch, “Sowing Terror, Atrocities against civilians in Sierra Leone,” Vol. 10, No.3 (A) July 1998 P 53 18/11/2005 92bis Human Rights Watch, “We’ll kill you if you cry, Sexual Violence in the Sierra Leone Conflict” Vol.15, No. 1 (A), January 2003 P 54 18/11/2005 92bis Amnesty International, “Sierra Leone 1998 –a year of atrocities against civilians” P 55 18/11/2005 92bis Amnesty International, “Sierra Leone: Childhood – a casualty of conflict,” AI Index: AFR 51/69/00, 31 August 2000 P 56 18/11/2005 92bis Amnesty International Annual Report 2000, “AI Report 2000: Sierra Leone” P 57 18/11/2005 92bis No Peace without Justice, Sierra Leone Conflict Mapping Program, 9 March 2004 and Letter from No Peace without Justice certifying the report P 58 18/11/2005 92bis War-Related Sexual Violence in Sierra Leone, Report by Physicians for Human Rights, published 2002 P 59 18/11/2005 92bis Statement on the historic return to Freetown, Sierra Leone, of the Leaders of the Alliance of the Revolutionary United Front of Sierra Leone and the Armed Forces Revolutionary Council, 3 October 1999 (Freetown, Sunday. October 3, 1999) P 60 18/11/2005 92bis Personal Statement by Lt. JP Koroma on 1 October 1999 P 61 18/11/2005 92bis Revolutionary United Front’s Apology to the Nation, delivered on SLBS, 18 June 1997 exhibits admitted at trial 1939

P 62 18/11/2005 92bis The Lomé Peace Accord, the Peace Agreement Between the Government of Sierra Leone and the Revolutionary United Front of Sierra Leone (RUF/SL), 7 July 1999 P 63 18/11/2005 92bis The Abidjan Peace Accord, the Peace Agreement between the Government of the Republic of Sierra Leone and the Revolutionary United Front of Sierra Leone (RUF/SL), 30 November 1996 P 64 18/11/2005 92bis The Conakry Accord: ECOWAS Six-month Peace Plan for Sierra Leone, 23 October 1997 – 22 April 1998, 23 October 1997 P 65 18/11/2005 92bis Ceasefĳire Agreement Between Government and the Revolutionary United Front, 18 May 1999 P 66 18/11/2005 92bis United States Department of State, “Sierra Leone Country Report on Human Rights Practices for 1997,” Released by the Bureau of Democracy, Human Rights, and Labor, January 30, 1998 P 67 18/11/2005 92bis First Report on the UNAMSIL (S/1999/1223) P 68 18/11/2005 92bis Women Waging Peace and the Policy Commission, “From Combat to Community: Women and Girls of Sierra Leone,” Dyan Mazurana and Khristopher Carlson, January 2004 P 69 18/11/2005 92bis Minutes dated 23 January 1998 of meeting of AFRC Supreme Council held on 9 December, 1997 1940 part v

P 70 18/11/2005 92bis Government Notice 272 (P.N. No.3 of 1997), Sierra Leone (SL) Gazette No.69 P 71 18/11/2005 92bis Decrees 1, 5, and 7 of 1997. Dec 1 – SL Gazette No.41; Dec 5 – SL Gazette No.49; Dec 6 – SL Gazette No.63; Dec.7 – SL Gazette No.66 P 72 18/11/2005 92bis Record of Deaths 1-19 January 1999, Births and Deaths Registry, Freetown, Sierra Leone P 73 18/11/2005 92bis SLBS Radio Broadcast, 25 May 1997, 18:42 GMT P 74 18/11/2005 92bis SLBS Radio Broadcast, 25 May 1997, 19:30 GMT P 75 18/11/2005 92bis SLBS Radio Broadcast, 29 May 15:26 GMT [Proclamation issued by the Administration of Sierra Leone Armed Forces Revolutionary Council, Proclamation 1997, in Freetown on 28 May 1997] P 76 18/11/2005 92bis SLBS Radio Broadcast, 30 May 19:22 GMT [“Special Message” by the Revolutionary United Front Spokesman Lieutenant David Collins] P 77 18/11/2005 92bis Address by Major Johnny Paul Koroma, Head of State and Chairman of the Armed Forces Revolutionary Council, Freetown, 1 June 1997 P 78 18/11/2005 92bis AFRC Press Release, 3 January 1998 P 79 18/11/2005 92bis Joint Communiqué, Meeting between the Special Representative of the UN Secretary General to Sierra Leone and the Delegation of the Revolutionary United Front, Abidjan, 19-21 February 1999 P 80 11/21/2005 TF1-046 SLBS Radio Broadcast, 28 May 1997 P 81 28/06/2006 Brima “Power of Attorney,” 12 March 2003 P 82 28/06/2006 Brima “Request for Legal Assistance,” 12 March 2003 exhibits admitted at trial 1941

P 83 28/06/2006 Brima “Power of Attorney,” 24 March 2003 P 84 28/06/2006 Brima SC Press release 6472 of 28 January 1998 P 85 28/06/2006 Brima “A day in Rebel Territory” by Eric Beauchemin, 21 January 2000 P 86 29/06/2006 Brima Record of Interview number 00019379, 22 January 2003 P 87 29/06/2006 Brima Record of Interview number 00019385, 7 February 2003 P 88 29/06/2006 Brima Statement, ERN 00019842 made by Alfred Abu Sankor alias Zagallo, Sierra Leone Police Force, 27 March 1998 P 89 29/06/2006 Brima Statement ERN 00019816 made by Tamba Gborie, Sierra Leone Police Force, 22 March 1998 P 90 30/06/2006 Brima Death Certifĳicate No W/F 86616 of Sergeant Brima T P 91 30/06/2006 Brima Death Statistical Notifĳication Report issued by the Offfĳice of Chief Registrar of Births and Deaths on the 11 July 1997 P 92 30/06/2006 Brima In-patient case sheet of Sergeant Brima T going from page 00019366 to 00019370 P 93 03/07/2006 Brima 2 pages of Newspaper “Pool” of 11 July 1997 P 94 03/07/2006 Brima Article “Honourables or out-laws” from Newspaper “The Point” of 19 September 1997 P 95 03/07/2006 Brima 2 pages from Newspaper “Unity Now” of 17 December 1997 P 96 03/07/2006 Brima Page 1 from Newspaper “The Point” of 5 November 1997 P 97 04/07/2006 Brima “We are merely using politicians,” Standard Times, 13 December 1997 P 98 06/07/2006 Brima Declaration of Means Form dated 12 March 2003 P 99 06/07/2006 Brima (Confĳidential) P100 13/07/2006 DBK-094 List containing seven names written by witness DBK-094 1942 part v

D 1 09/03/2005 TF1-024 (Confĳidential) D 1A 09/03/2005 TF1-024 (Confĳidential) D 2 05/04/2005 Defence Letter of Accused persons D 3 06/04/2005 TF1-084 (Confĳidential) D 4a 07/04/2005 TF1-085 (Confĳidential) D 4b 07/04/2005 TF1-085 (Confĳidential) D 4c 07/04/2005 TF1-085 (Confĳidential) D 4d 07/04/2005 TF1-085 (Confĳidential) D 4e 07/04/2005 TF1-085 (Confĳidential) D 5a 15/04/2005 TF1-021 (Confĳidential) D 5b 15/04/2005 TF1-021 (Confĳidential) D 6 20/06/2005 TF1-334 (Confĳidential) D 7 18/06/2005 TF1-198 (Confĳidential) D 7.1 18/06/2005 TF1-198 (Confĳidential) D 8 05/07/2005 Defence (Confĳidential) D 9 06/10/2005 John Petrie (Confĳidential) D 10 06/10/2005 John Petrie (Confĳidential) D 11 06/10/2005 John Petrie Colour Copy of Discharge Book of Accused Kanu D 12 13/10/2005 TF1-301 (Confĳidential) D 13 05/06/2006 Brima (Confĳidential) D 14 06/062006 Brima Discharge Book Brima D 15 11/07/2006 DBK-094 (Confĳidential) D 16 14/07/2006 DBK-089 (Confĳidential) D 17 14/07/006 DBK-089 (Confĳidential) D 18 17/07/2006 DBK-095 (Confĳidential) D 19 19/07/2006 DBK-077 (Confĳidential) D 20 19/07/2006 DBK-077 (Confĳidential) D 21 19/07/2006 DBK-077 (Confĳidential) D 22 19/07/2006 DBK-077 (Confĳidential) D 23 06/09/2006 Defence (Confĳidential) D 24 06/09/2006 Defence (Confĳidential) D 25 08/09/2006 DAB-092 (Confĳidential) D 26 20/09/2006 DAB-095 (Confĳidential) D 27 25/09/2006 DAB-033 (Confĳidential) D 28 27/09/2006 DAB-059 (Confĳidential) D 29 05/10/2006 DBK-005 (Confĳidential) D 30 05/10/2006 DBK-012 (Confĳidential) D 31 09/10/2006 DBK-129 (Confĳidential) D 32 10/10/2006 DBK-131 (Confĳidential) exhibits admitted at trial 1943

D 33 16/10/2006 TRC-01 (Confĳidential) D 34 17/10/2006 Prins (Confĳidential) D 35 17/10/2006 Prins (Confĳidential) D 36 24/10/2006 Prins Military Expert Report on the Armed Forces Revolutionary Council Faction D 37 24/10/2006 Gbla The Use of Child Soldiers in the Sierra Leone Conflict D 38 25/10/2006 Thorsen Expert Report on Forced Marriages D 39 27/10/2006 Morissette (Confĳidential)

LIST OF DOCUMENTS FILED IN PROSECUTOR V. BRIMA SCSL-04-6-T

1) Indictment (annexes: Prosecutor’s memo to 07-03-03 1-28 accompany indictment, investigator’s statement, draft order confĳirming indictment) 2) Order designating a Rule 28 judge and 07-03-03 34 authorising the exercise of his functions away from the seat of the Special Court 3) Decision approving the indictment and order for 07-03-03 35-36 non-disclosure 4) Warrant of arrest and order for transfer and 07-03-03 37-39 detention 5) Registrar’s request to the authorities of Sierra 07-03-03 40-64 Leone for the execution of the arrest warrant pursuant to Rule 55 (C) also the Deputy Registrar’s afffĳidavit 6) Order designating a Rule 28 judge 09-03-03 65 7) Order designating a Rule 28 judge 09-03-03 66 8) Request for legal assistance 12-03-03 67 9) Order to permit photography, video-recording or 14-03-03 73-74 audio-recording 10) Order for the disclosure of the indictment and 14-03-03 75-76 the warrant of arrest and order for transfer and detention 11) Adjournment of the initial appearance and 15-03-03 77-78 detention on remand 12) Order for legal assistance 19-03-03 79-80 13) Scheduling order 22-03-03 81-82 14) Power of attorney 19-03-03 83 15) Prosecution motion for immediate protective 07-04-03 84-205 measures for witnesses and victims and for non-public disclosure 16) Prosecution motion to allow disclosure to the 07-04-03 206-212 Registry and to keep disclosed material under seal until appropriate measure are in place 1946 part v

17) Scheduling order 10-04-03 213-214 18) Decision appointing counsel for the accused 14-04-03 215-216 19) Communication of Defence Offfĳice regarding 14-04-03 217-219 assignment of counsel to Alex Tamba Brima and request for order on service of document 20) Order on the decision of the Registrar to 16-04-03 220-221 provisionally assign counsel for the accused 21) Order on disclosure to the Registry 17-04-03 222-224 22) Response of the Defence Counsel for and on 17-04-03 225-228 Behalf of the Accused Tamba Alex Brima to extremely urgent Prosecution Motion to allow Material under Seal until Appropriate Protective Measures are in Place 23) Response of the Defence to the Prosecution 23-04-03 229-261 motion for immediate protective measures for witnesses and victims and for non-public disclosure 24) Prosecution reply to response of the Defence to 29-04-03 262-343 the Prosecution motion for mmediate protective measures for witnesses and victims and for non-public 25) Corrigendum to the decision appointing Terrence 02-05-03 344 Terry as counsel for Alex Tamba Brima 26) Notice of motion for bail for the accused 02-05-03 345-412 27) Notice of motion ex parte for leave for writ of 02-05-03 413-463 habeas corpus ad subjiciendum to issue 28) Memorial or brief argument for the bail 02-05-03 464-468 application 29) Memorial or brief argument for leave to issue 02-05-03 472-482 writ of habeas corpus 30) Order delegating the presiding judge of the 15-05-03 495 Trial Chamber to designate a Rule 28 judge 31) Order designating a judge under Rule 28 16-05-03 496 32) Order on fĳiling 16-05-03 497-501 33) Corrigendum - order on designating a Rule 28 16-05-03 502 judge 34) Order designating a judge under Rule 28 16-05-03 503 35) Order designating a judge under Rule 28 16-05-03 504 36) Decision on the Prosecutor’s motion for 23-05-03 505-517 immediate protective measures for witnesses and victims and for non-public disclosure list of documents filed in prosecutor v. brima 1947

37) Defence motion for bail or for provisional release 23-05-03 518-632 pursuant to Rule 65 of the Rules of Procedure and Evidence of the Special Court for Sierra Leone 38) Defence motion for leave to issue a writ of 23-05-03 633-752 habeas corpus, as well as for order of the writ of habeas corpus 39) Prosecution response to motion for bail or for 05-05-03 753-831 provisional release 40) Prosecution response to Defence motion for 05-06-03 832-1054 leave to issue writ of habeas corpus ad subjiciendum and for an order for the writ of habeas corpus ad subjiciendum 41) Defence reply to Prosecution response to 09-06-03 1055-1065 Defence motion for bail or for provisional release 42) Defence reply to Prosecution response to 09-06-03 1066-1077 Defence motion for leave to issue writ of habeas corpus ad 43) Defence motion for extension of time for leave to 09-06-03 1078-1102 be granted to the accused to fĳile Defence motion to appeal against decision 44) Prosecution response to Defence motion 17-06-03 1103-1106 for extension of time for leave to appeal against the order of Judge Thompson on protective measures 45) Order designating a judge under Rule 28 18-06-03 1107 46) Order designating a judge under Rule 28 18-06-03 1108 47) Order for oral hearing in the motion fĳiled by 18-06-03 1109-1111 the Defence for leave to fĳile a writ of habeas corpus ad subjiciendum 48) Order designating a Rule 28 judge 19-06-03 1112 49) Order designating judge under Rule 28 19-06-03 1113 50) Submission from the Attorney General and 30-06-03 1114-1115 Minister of Justice 51) Submission from the Attorney General and 02-07-03 1116 Minister of Justice 52) Order designating an appeals pre-hearing 19-06-03 1117-1118 judge 53) Submission of the Government of the Republic 07-07-03 1119-1125 of Sierra Leone in response to motion for bail or the provisional release 1948 part v

54) Submission of the Government of the 07-07-03 1126-1131 Republic of Sierra Leone in response to motion for bail or the provisional release 55) Order designating an appeals pre-hearing 19-06-03 1132 judge 56) Order designating judge under 13-06-03 1133 Rule 28 57) Order pursuant to Rule 4 of the Rules of 30-07-03 1134 Procedure and Evidence 58) Ruling on a motion applying for bail or for 22-07-03 1135-1151 provisional release fĳiled by the applicant 59) Ruling on the application for the issue of a 22-07-03 1152-1168 writ of habeas corpus fĳiled by the applicant 60) Order designating a Rule 28 judge 12-09-03 1169 61) Order designating a Rule 28 judge 12-09-03 1170 62) Order designating a Rule 28 judge 12-09-03 1162 63) Application for extension of time - habeas 16-09-03 1172-1205 corpus 64) Application for extension of time 03-09-03 1206-1240 65) Practice direction on fĳiling documents under 22-09-03 1241-1243 Rule 72 of the Rules of Procedure and Evidence before the Appeals Chamber of the Special Court for Sierra Leone 66) Prosecution response to Defence motion for 24-09-03 1244-1252 extension of time for leave to appeal against the decision and consequential order of Judge Benjamin Mutanga Itoe dated 22nd July 2003 refusing an application for a writ of habeas corpus 67) Prosecution response to Defence motion for 24-09-03 1253-1261 extension of time for leave to appeal against the decision and consequential order of Judge Benjamin Mutanga Itoe dated 22nd July 2003 refusing an application for bail of provisional release 68) Prosecutions corrigendum to response to 26-09-03 1262-1264 Defence motion for extension of time for leave to appeal against decision of Judge B. M. Itoe dated 22 July 2003 refusing an application for a writ of habeas corpus list of documents filed in prosecutor v. brima 1949

69) Prosecutions Corrigendum to Prosecution’s 26-09-03 1265-1267 Response to Defence Motion for extension of Time for Leave to Appeal Against the Decision and Consequential Order of Judge Benjamin Mutanga Itoe dated 22 July 2003 Refusing an Application for Bail or Provisional Release 70) Applicant’s Reply to Prosecution Response to 26-09-03 1268-1275 Applicant’s Motion for Extension of Time for Leave to be granted to the Accused the Applicant Herein Tamba Alex Brima to File Applicant’s Motion to Appeal Against Decision and Consequential Orders of the Rt. Honorable Judge Benjamin Mutanga Itoe dated 22 July 2003 Refusing and Application for the Issue of the Writ of Habeas Corpus 71) Applicant’s reply to Prosecution response 26-09-03 1276-1283 to applicant’s motion for extension of time for leave to be granted to the accused the applicant herein Tamba Alex Brima to fĳile applicant’s motion to appeal 72) Directive on the assignment of counsel 03-10-03 1284-1296 73) Rules of detention 07-03-03 1297-1317 74) Practice direction on the procedure 09-09-03 1318-1321 following a request by a state, the Truth and Reconciliation Commission, or other legitimate authority to take a statement from a person in custody of the Special Court for Sierra Leone 75) Prosecution motion for joinder 09-10-03 1322-1481 76) Defence response to Prosecution motion for 15-10-03 1482-1488 joinder 77) Decision on the application for extension of 15-10-03 1489-1494 time for leave to be granted to fĳile Defence motion to appeal against the decision refusing an application for the issue of the writ of habeas corpus 78) Prosecution reply to Defence response to 17-10-03 1495-1499 prosecution motion for joinder 79) Notice of hearing 11-11-03 1500 80) Notice of hearing 14-11-03 1501 1950 part v

81) Applicant’s motion against denial by the 06-01-04 1502-1716 acting Principal Defender to enter a legal service contract for the assignment of counsel for and on behalf 82) Notice of hearing 02-01-03 1717 83) 2nd respondent’s response to applicant’s 16-01-04 1718-1723 motion against denial by the acting Principal Defender to enter a legal service contract for the assignment of counsel for and on behalf of the accused 84) 1st respondent’s response to applicant’s 16-01-04 1724-1768 motion against denial by the acting Principal Defender to enter a legal service contract for the assignment of counsel for and on behalf of the accused Alex Tamba Brima 85) Applicant’s reply to the 1st respondent’s 19-01-04 1769-1778 response to applicant’s motion for denial by the acting Principal Defender to enter a legal service contract (agreement) for the assignment of counsel for and on be half of the accused 86) Applicant’s reply to the 2nd respondent’s 19-01-04 1779-1783 response to applicant’s motion for denial by the acting Principal Defender to enter a legal service contract (agreement) for the assignment of counsel for and on be half of the accused 87) Applicant’s motion against denial by the 28-01-04 1784-1802 acting Principal Defender to enter a legal service contract for the assignment of counsel for and on behalf of the accused Tamba Alex Brima the applicant herein 88) Decision and order on prosecution motions 27-01-04 1803-1828 for joinder 89) Corrigendum - decision and order on 28-01-04 1829-1830 prosecution motions for joinder LIST OF DOCUMENTS FILED IN PROSECUTOR V. KAMARA SCSL-04-10-T

1) Prosecutor’s memorandum to accompany the 26-05-03 1-5 indictment 2) Decision approving the indictment, the warrant 28-05-03 47-49 of arrest, and order for non-disclosure 3) Warrant of arrest and order for transfer and 28-05-03 50-52 detention 4) Documents served on national authorities in 28-05-03 53-60 accordance with Rule 55 5) Order for the disclosure of the indictment and 03-06-03 61-62 the warrant of arrest and order for transfer and detention 6) Request for legal assistance 30-05-03 63 7) Power of attorney 30-05-03 64 8) Prosecution motion to allow disclosure to the 11-06-03 65-67 Registry and to keep disclosed material under seal until appropriate protective measures are in place 9) Prosecution motion for immediate protective 11-06-03 68-221 measures for witnesses and victims and for non- public disclosure 10) Request by the Defence offfĳice for suspension 18-06-03 222-226 of consideration of Prosecution’s motion for protective measures until counsel is assigned 11) Order designating a Rule 28 judge 18-06-03 227 12) Order designating a Rule 28 judge 18-06-03 228 13) Decision 18-06-03 229-230 14) Order designating a Rule 14 judge 19-06-03 231 15) Order designating a Rule 28 judge 19-06-03 232 16) Prosecution response to “request by the Defence 23-06-03 233-240 Offfĳice for suspension of consideration of Prosecution’s motion for protective measures until counsel is assigned” 1952 part v

17) Order on the request by the Defence Offfĳice for 26-06-03 241-244 suspension of consideration of Prosecution’s motion for protective measures until counsel is assigned 18) Corrigendum/order for the disclosure of the 27-06-03 245-246 indictment and of the warrant of arrest and for transfer and detention 19) Prosecution motion for interim orders to allow 01-07-03 247-293 disclosure to the Registry and to keep disclosed material under seal until appropriate protective measures are in place 20) Interim order for the transmission of the 02-07-03 294-298 disclosure materials to the Registrar 21) Order designating an appeals pre-hearing judge 19-06-03 299-300 22) Defence response to Prosecution motion for 22-07-03 301-309 immediate protective measures 23) Prosecution reply to Defence “response to the 24-07-03 310-318 Prosecution motion for immediate protective measures” 24) Order designating an appeals pre-hearing judge 19-06-03 319 25) Order designating a Rule 28 judge 13-06-03 320 26) Order pursuant to Rule 4 of the rules of procedure 30-07-03 321 and evidence 27) Order designating a Rule 28 judge 12-09-03 322 28) Order designating a Rule 28 judge 12-09-03 323 29) Order designating a Rule 28 judge 12-09-03 324 30) Application by Brima Bazzy Kamara in respect 22-09-03 325-331 of jurisdiction and defects in indictment 31) Practice direction on fĳiling documents under 22-09-03 332-334 Rule 72 of the Rules of Procedure and Evidence before the Appeals Chamber of the Special Court for Sierra Leone 32) Prosecution response to the Defence application 29-09-03 335-443 in respect of jurisdiction and defects in indictment 33) Directive on the assignment of counsel 03-10-00 444-456 34) Rules of detention 07-03-03 457-477 35) Practice direction on the procedure following a 09-09-03 478-481 request by a state, the Truth and Reconciliation Commission, or other legitimate authority to take a statement from a person in the custody of the Special Court for Sierra Leone list of documents filed in prosecutor v. kamara 1953

36) Order pursuant to Rule 72(E): application by 09-10-03 482-484 Brima Bazzy Kamara in respect of jurisdiction and defects in the indictment 37) Prosecution motion for joinder 09-10-03 485-644 38) Notice of hearing 22-10-03 645-646 39) Special practice direction on expedited timetable 23-10-03 647-649 for fĳiling submissions before the Appeals Chamber of the Special Court for Sierra Leone 40) Decision on the Prosecutor’s motion for 23-10-03 650-654 immediate protective measures for witnesses and victims and for non-public disclosure 41) Court Management memorandum 29-10-03 656-666 42) Notice of hearing 11-11-03 667 43) Defence motion for extension of time to fĳile 13-11-03 668-671 response to Prosecution motion for joinder and for adjournment of hearing 44) Notice of hearing 14-11-03 672 45) Prosecution response to Defence motion 18-11-03 673-678 for extension of time to fĳile response to Prosecution motion for joinder and for adjournment of hearing 46) Response to Prosecution motion for joinder 18-11-03 679-683 47) Court Management memorandum 18-11-03 684-685 48) Court Management memorandum 14-11-03 686 49) Prosecution reply to Defence response to 20-11-03 687-690 Prosecution motion for joinder 50) Additional written submissions of the 24-11-03 691-1135 Prosecution – legality of the establishment of the Court 51) Decision on the Defence motion for extension of 01-12-03 1136-1141 time to fĳile response to Prosecution motion for joinder and for adjournment of hearing 52) Decision 20-05-03 1142-1144 53) Relief for the motion on defects in the form 23-12-03 1145-1146 of he indictment 54) Brief in support of preliminary motion on 23-12-03 1147-1267 defects in the form of the indictment 55) Notice of hearing 14-01-04 1268 56) Brief in support of preliminary motion on 23-12-03 1269-1279 defects in the form of the indictment 57) Prosecution response to Defence preliminary 19-01-04 1280-1448 motion on defects in the form of the indictment 1954 part v

58) Reply to the Prosecution response to preliminary 22-01-04 1449-1452 motion on defects in the form of the indictment 59) Decision and order on Prosecution motions for 27-01-04 1453-1478 joinder 60) Corrigendum – decision and order on Prosecution 28-01-04 1479-1480 motions for joinder LIST OF DOCUMENTS FILED IN PROSECUTOR v. KANU SCSL-04-13-T

1) Indictment 15-09-03 1-47 2) Decision approving the indictment, the warrant 16-09-03 48-50 of arrest and order for transfer and detention and order for non-public disclosure 3) Warrant of arrest and order for transfer and detention16-09-03 51-53 4) Registrar’s request to the authorities of Sierra 16-09-03 54-65 Leone for the execution of the arrest warrant pursuant to Rule 55(c) 5) Power of attorney 17-09-03 66 6) Order for disclosure of the indictment, the 19-09-03 67-69 warrant of arrest and order for transfer and detention 7) Request for legal assistance 19-09-03 70 8) Declaration of means form 19-09-03 71-74 9) Hearing notice 22-09-03 75 10) Practice direction on fĳiling documents under 22-09-03 76-78 Rule 72 of the Rules of Procedure and Evidence before the Appeals Chamber of the Special Court for Sierra Leone 11) Prosecution motion for immediate protective 30-09-03 79-234 measures for witnesses and victims and for non-public disclosure and urgent request for interim measures until appropriate protective measures are in place. 12) Decision 01-10-03 235-236 13) Directive on the assignment of counsel 03-10-03 237-249 14) Rules of detention 07-03-03 250-270 15) Practice direction on the procedure following a 09-09-03 271-274 request by state, the Truth and Reconciliation Commission, or other legi timate authority to take a statement from a person in the custody of the Special Court for Sierra Leone 1956 part v

16) Defence response to Prosecution motion for 08-10-03 275-281 immediate protective measures for witnesses and victims and for non-public disclosure and urgent request for interim mea sures until appropriate protective measures are in place 17) Prosecution motion for joinder 09-10-03 282-441 18) Motion on defects in the form of the indictment 16-10-03 442-455 and for particularization of the indictment 19) Response to the Prosecution motion for Joinder 16-10-03 456-459 20) Prosecution reply to Defence response to 16-10-03 460-477 Prosecution motion for immediate protective measures 21) Decision on the urgent request for interim 15-10-03 478-481 measures until appropriate protective measures are in place 22) Motion on defects in the form of the indictment 16-10-03 482-776 and for particularization of the indictment 23) Motion on abuse of process due to infringement of 20-10-03 777-781 principles of nullum crimen sine lege and non- retroactivity as to several counts 24) Motion challenging the jurisdiction of the Special 20-10-03 782-818 Court, raising serious issues relating to jurisdiction on various grounds and objections based on abuse of process 25) Prosecution reply to Defence “response to the 20-10-03 819-845 Prosecution motion for joinder” 26) Power of attorney 14-10-03 846 27) Prosecution response to Defence motion on defects 24-10-03 847-966 in the form of the indictment and for particularization of the indictment 28) Prosecution response to the Defence motion 30-10-03 967-1197 challenging jurisdiction of the Court 29) Prosecution response to the Defence motion on 30-10-03 1198-1290 abuse of process due to infringement of the principle of nullum criminen sine lege 30) Defence reply to Prosecution response to Defence 30-10-03 1291-1297 motion on defects in the form of the indictment and for particularization of the indictment 31) Defence reply to Prosecution response to the 05-11-03 1298-1302 Defence motion on abuse of process due to infringement of the principle of nullum crimen sine lege list of documents filed in prosecutor v. kanu 1957

32) Defence reply to Prosecution response to the 05-11-03 1303-1312 Defence motion challenging jurisdiction of the Court 33) Notice of hearing 11-11-03 1313 34) Notice of hearing 14-11-03 1314 35) Court Management memorandum – motion on 14-11-03 1315 defects in the form of indictment 36) Decision and order on Defence preliminary motion 19-11-03 1316-1328 for defects in the form of the indictment 37) Decision on the Prosecution motion for immediate 24-11-03 1329-1342 protective measures for witnesses and victims 38) Bill of particulars 25-11-03 1343-1347 39) Notice of hearing 14-01-04 1348 40) Order pursuant to Rule 72 (e) – Defence motion 22-01-04 1349-1353 challenging the jurisdiction of the Special Court raising serious issues relating to jurisdiction on various grounds and objections based on abuse of process 41) Order on expedited fĳiling of additional Submissions 27-01-04 1354-1355 42) Decision and order on Prosecution motions for 27-01-04 1356-1381 joinder 43) Corrigendum – decision and order on Prosecution 28-01-04 1382-1383 motions for joinder

LIST OF DOCUMENTS FILED IN PROSECUTOR V. BRIMA, KAMARA, KANU SCSL-2004-16-PT (AFRC)

1) Defence written submissions in addition to 29-1-09 1-4 motion challenging the jurisdiction of the special court, raising serious issues relating to jurisdiction on various grounds and objections based on abuse of process 2) Prosecution’s reply to additional submissions 30-1-04 5 fĳiled by Defence on 29 January 2004 3) Prosecution’s application for leave to fĳile an 03-2-04 6-61 interlocutory appeal against the decision on the Prosecution motion’s for joinder 4) Decision for the assignment of a new case 03-2-04 62-63 number 5) Order for expedited fĳiling 04-2-04 64-65 6) Indictment 05-2-04 66-86 7) Defence response to Prosecution’s application 05-2-04 87-90 for leave to fĳile an interlocutory appeal against the decision on the Prosecution ‘s motions for joinder 8) Response of Kamara to the Prosecutor’s 09-2-04 91-94 application for leave to Appeal 9) Prosecution’s reply to “defence response to 09-2-04 95-98 Prosecution’s application for leave to fĳile an interlocutory appeal against the decision on the motion for joinder” 10) Defence response on behalf of Tamba Alex 09-2-04 99-140 Brima to Prosecution’s application for leave to fĳile an interlocutory appeal against the decision on the prosecution motions for joinder 11) Request for leave to amend the Indictment 09-2-04 141-244 12) Corrigendum to amended indictment fĳiled 10-2-04 245-247 with Prosecution’s motion for “request for leave to amend the indictment” 1960 part v

13) Prosecution’s reply to “defence response on 11-2-04 248-257 behalf of Tamba Alex Brima to Prosecution’s application for leave to fĳile and interlocutory appeal against the decision on the Prosecution’s motions for joinder” 14) Order designating a Rule 28 judge 11-2-04 258-259 15) Order for interim measures in relation to 12-2-04 260-261 assignment of counsel for accused Brima 16) Prosecution’s reply to “response of Kamara 12-2-04 262-266 to the Prosecution’s application for leave to appeal” 17) Decision on Prosecution’s application for 13-2-04 267-672 leave to fĳile an interlocutory appeal against the decision on the Prosecution motions for joinder 18) Scheduling order for status conference 13-2-04 273-274 (under Rule 65bis) 19) Order for fĳiling pre-trial briefs (under Rules 13-2-04 275-276 54 and 73bis) 20) Notice of hearing 16-2-04 277 21) Defence response to Prosecution’s request for 17-2-04 278-283 leave to amend the indictment 22) Order pursuant to Rule 4 20-2-04 284-285 23) Reply to Defence Response to Prosecution 20-2-04 286-345 Request for leave to amend the Indictment 24) Practice Direction on Disclosure by the 23-2-04 346-347 Prosecutor Pursuant to Rule 66 of the Rules of Procedure & Evidence of the SCSL 25) Decision on Assignment of Counsel 25-2-04 348-350 26) Order to submit indications of specifĳic 26-2-04 351-352 changes to indictments 27) Indication of specifĳic changes to Indictments 1-3-04 353-408 28) Prosecutor’s Request to Admit 4-3-04 409-427 29) Prosecution’s Trial Brief 5-3-04 428-509 30) Fax from T Terry 8-3-04 510 31) Notice of Hearing Kamara 12-3-04 10-3-04 511 32) Decision on Constitutionality & Lack of 15-3-04 512-538 Jurisdiction 33) Decision on challenge to jurisdiction: Lome 15-3-04 539-574 Accord Amnesty 34) Kanu motion for Exclusion of Pros Witness 18-3-04 575-579 Statements & Stay on Filing of Pros Witness Statements Pursuant to Rules 5 & 66(A)(i) list of documents filed in prosecutor v. brima, kamara, kanu 1961

35) Defence Response to Pros Request to Admit 18-3-04 580-581 36) Kanu-Add motion for Exclusion of Pros Witness 19-3-04 582-587 Statements & Stay on Filing etc. 37) Kanu Def response to Pros request to admit 19-3-04 588-589 38) Kanu Motion to Request an Order under 19-3-04 590-612 Rule 54 with Respect to Exculpatory Evidence 39) Kanu-Defence Pre-Trial Brief & Notifĳication of 22-3-04 613-672 Defences Pursuant to Rule 67(A)(ii) & (b) 40) Motion for Exclusion of Pros’s Witness 23-3-04 673-695 Statements & Stay on Filing of Prosecution Witness Statements Pursuant to Rules 5 & 66(A)(I) 41) Rules of Procedure and Evidence 23-3-04 696-745 42) Prosecution Letter in Response to Kanu 26-3-04 746 Motion to Request an Order Under Rule 54 with respect to Exculpatory Evidence 43) Kanu-Prosecution Response to Defence 26-3-04 747-763 Motion for Exclusion of Prosecution Witness Statements and Stay on Filing of Prosecution Witness Statements Pursuant to Rules 5 & 66 and Defence Additional Motion 44) Brima – as above 29-3-04 764-796 45) Kanu Def Reply to 43) above 31-3-04 797-802 46) Decision & Order on Def Preliminary Motion on 1-4-04 803-826 Defects in the Form of Indictment 47) Written Reasons for the TC Oral Dec on the 1-4-04 827-838 Def Motion on Abuse of Process etc. 48) Order to the Pros to fĳile Disclosure in Prep 1-4-04 839-845 for Trial 49) Def Brima Rep to 40) above 1-4-04 846-851 50) Order to the Pros to fĳile a supplemental 1-4-04 852-855 pre-trial brief etc. 51) Prosecution Motion for Judicial Notice And 2-4-04 856-1030 Admission of Evidence 52) Order to the Prosecution for Renewed 2-4-04 1031-1034 Motion for Protective Measures 53) Order for a Pre-Trial Conference 2-4-04 1035-1036 54) Order Designating a Rule 28 Judge 5-4-04 1037-1038 55) Order Designating a Rule 28 Judge 19-4-04 1039-1040 56) Pros fĳile Supplemental pre-trial brief 22-4-04 1041-1478 1962 part v

57) Materials fĳiled Pursuant to Order to the 26-4-04 1479-4730 Prosecution to fĳile Disclosure Materials And Other Materials in Preparation for the Commencement of Trial of 1st April 2004 58) Order Designating a Rule 28 Judge 19-4-04 4731-4732 59) Prosecution’s Motion for concurrent hearing 30-4-04 4733-4859 of evidence common to cases SCSL-2004-15-PT and SCSL-2004-16-PT 60) Trial Chamber Order for Expedited fĳiling 30-4-04 4860-4861 61) Kanu – Response to Prosecutions Motion 04-5-04 4862-4865 for concurrent hearing of evidence common to cases SCSL 2004-PT-15 and SCSL 2004-16-PT 62) Order to fĳile outstanding documents in 04-5-04 4866-4867 support of the Judicial Motion. 63) Rules Governing Detention etc. 4-5-04 4868-4892 64) Prosecution Chart indicating Documentary 04-5-04 4893-4911 and Testimonial evidence by Paragraph of Consolidated Indictment pursuant to Trial Chamber Order dated 1 April 2004 65) Renewed Prosecution Motion for protective 04-5-04 4912-5073 measures pursuant to Order to the Prosecution for renewed Motion for protective measures dated 2 April 2004 66) Pros Response to “Order to fĳile Outstanding 5-5-04 5074-5268 documents in support of the judicial notice motion” dated 4 May 2004 67) Reply to Def Response to Pros Motion for 5-5-04 5269-5275 Concurrent Hearing of Evidence Common to cases 15 & 16 68) Brima-Decision on Applicant’s motion 6-5-04 5276-5326 Against Denial by the Acting Principal Defender to Enter a Legal Service Contract For the Assignment of Counsel 69) Kamara’s Response and Application for 6-5-04 5327-5329 EOT to Pro’s Motion for Concurrent Hearing of Evidence 70) Decision on Pros Request for leave to amend the 6-5-04 5330-5350 indictment 71) Order pursuant to Rule 4 7-5-04 5351-5352 72) Reply to Defence Response and Application for 7-5-04 5353-5358 extension of time to Prosecutor’s Motion for concurrent hearing of evidence list of documents filed in prosecutor v. brima, kamara, kanu 1963

73) Updated compliance report fĳiled pursuant to 11-5-04 5359-5370 undertaking by Prosecution in Pre-Trial conference held 30 April 2004 74) Scheduling Order (hearing 25/5/04) 11-05-04 5371-5372 75) Decision on Pro’s Motion for Concurrent 11-5-04 5373-5385 Hearing of Evidence Common to cases 15 & 16 76) Consequential Order and Corrigendum to the 12-5-04 5386-5388 decision on Prosecution request for leave to amend the Indictment 77) Scheduling Order for the further appearance of 12-5-04 5389-5390 the accused on the amended consolidated Indictment 78) Amended Consolidated Indictment 13-5-04 5391-5412 79) Prosecutions Application for leave to fĳile an 14-5-04 5413-5418 Interlocutory Appeal against the decision on the Prosecutions Motion for concurrent hearing of evidence common to cases SCSL-2004-15-PT and SCSL- 2004-16-PT 80) Kanu – Defence Response to renewed 14-5-04 5419-5422 Prosecution Motion for Protective measures Pursuant to Order to the Prosecution for renewed motion for Protective measures dated 2 April 2004 81) Brima-Defence Response for Renewed Pros 14-5-04 5423-5425 Motion for Protective Measures Pursuant to Order to The Prosecution for Renewed Motion for Protective Measures Dated 2 April 04 82) Order for Expedited fĳiling 17-5-04 5426-5427 83) Kanu-Def Response to “Pros Application 17-5-04 5428-5431 for Leave to File an interlocutory Appeal Against the Decision on the “Pros Motion for Concurrent Hearing of Evidence Common to cases SCSL 15 &16 84) Brima & Kanu – Prosecution consolidated 18-5-04 5432-5437 reply to Defence response to renewed Prosecution Motion for protective measures pursuant to Order to the Prosecution for renewed motion for Protective measures dated 2 April 2004 1964 part v

85) Brima – Defence Response to Prosecution 20-5-04 5438-5441 Application for leave to fĳile an interlocutory Appeal against the decision on the Prosecution Motion for concurrent hearing of evidence common to cases SCSL-2004- 15 & 16-PT 86) Prosecution consolidated reply to Defence 24-5-04 5442-5448 responses to Prosecution’s application for leave to fĳile an interlocutory Appeal against the decision on the Prosecutions motion for concurrent hearing of evidence common to cases SCSL-2004-15-PT & SCSL-2004-16-PT 87) Code of Ethics for Interpreters and Translators 25-5-04 5449-5453 employed by the Special Court for Sierra Leone 88) AFRC-Dec on Motion Challenging Jurisdiction 26-5-04 5454-5457 and Raising Objections Based on Abuse of Process 89) Practice Directions on Filing Documents before 1-6-04 5458-5466 the Special Court for Sierra Leone 90) Decision on Prosecution Application for leave 4-6-04 5467-5474 to fĳile an interlocutory Appeal against the Decision on Motion for concurrent hearing of evidence common to cases SCSL-2004-15-PT and SCSL- 2004-16-PT 91) Kanu-Decision on Defence Motion in respect of 8-6-04 5475-5486 Santigie Borbor Kanu for an order under Rule 54 with respect to release of exculpatory evidence 92) Outstanding Exhibit Copies Filed Pursuant to 11-6-04 5487-5533 Order To The Prosecution to File Disclosure Materials and Other Materials in Preparation for the Commencement of Trial of 1 April 04 93) Confĳidential Decision on Motion to prevent 15-6-04 5534-5547 Prosecution from serving certain materials to other accused until admissibility determined 94) Confĳidential Motion by Kanu. For a temporary 23-6-04 5548-5579 visit of the accused to his Mother 95) Order Pursuant to Rule 4 24-6-04 5580-5581 96) Letter to the Trial Chamber withdrawing the 28-6-04 5582 Kanu Motion for a temporary visit of the Accused to his mother dated 23 June 2004 97) Practice direction on Allowances for witnesses 16-7-04 5583-5592 and Expert Witnesses 98) Order Designating a Rule 28 Judge 22-7-04 5593-5594 list of documents filed in prosecutor v. brima, kamara, kanu 1965

99) Order Pursuant to Rule 4 23-7-04 5595-5596 100) Supplementary Materials fĳiled Pursuant to 30-7-04 5597-5599 Order to the Prosecution to fĳile disclosure materials and other materials in preparation for the commencement of Trial of 1 April 2004 101) Kanu, Decision on Motions for exclusion of 30/7/04 5600-5609 Prosecution witness statements and stay on fĳiling of Prosecution Statements. 102) Brima – Decision on Motion for exclusion of 02/8/04 5610-5619 Prosecution Witness Statements and stay of Filing of Prosecution Statements. 103) Kanu – Application for leave to fĳile an 04/8/04 5620-5626 interlocutory Appeal against the decision on Motions for exclusion of Prosecution Witness Statements and stay on fĳiling of Prosecution Statements of 30th July 2004 104) Exhibit to the Kanu Application for leave to 05/8/04 5627-5629 fĳile an Interlocutory Appeal ( Doc 103 above ) 105) Confĳidential Motion on Detention Issue 6/8/04 5630-5806 106) Prosecution response to Kanu’s Application for 6/9/04 5807-5816 leave to fĳile an interlocutory Appeal (Doc 103) 107) Response to Confĳidential Motion on Detention 6/9/04 5817-5832 108) Confĳidential reply to response on detention issue 9/9/04 5833-5838 109) Kanu – Reply to Prosecution Response to Appln 13/9/04 5839-5841 for leave to Appeal against the Decision on Motions for exclusion of Prosecution witness statements and stay on fĳilling of Prosecution statements 110) Order designating a duty Judge and Judicial 04/10/04 5842-5943 recess 111) Practice Direction For Certain Appeals Before 05/10/04 5944-5949 The Special Court 112) Practice Direction on fĳiling Amicus Curriae 20/10/04 5950-5953 applications pursuant to Rule 74 of the Rules of Procedure & Evidence of the Special Court for Sierra Leone 113) Principal Defender’s Decision to assign new lead 1/11/04 5954-5956 counsel 114) Principal Defender’s Decision to assign new lead 16/11/04 5957-5960 counsel (with corrected 1st page & cover letter re. correction) 115) Order Assigning a Case to a Trial Chamber 18/01/05 5961-5962 1966 part v

116) Order for Commencement of Trial and 20/01/05 5963-5965 Scheduling Order 117) Interim Order on Modifĳication of Protective 20/01/05 5966-5968 Measures for Witnesses 118) Order Pursuant to Rule 4 21/01/05 5969-5970 119) Defence Motion for Dismissal of Counts 15-18 21/01/05 5971-5995 of the indictment due to an alibi defence and lack of prima facie case 120) Scheduling Order 28/01/05 5996-5997 121) Prosecution Response to Defence Motion for 31/01/05 5998-6007 Dismissal of Counts 15-18 of the indictment due to an alibi defence and lack of prima facie case 122) List of Protective Measures received from Trial 01/02/05 6008-6020 Chamber 1 and Other Information fĳiled Pursuant to Scheduling Order of 28th January 2005 123) Clarifĳication of List of Protective Measures 03/02/05 6021-6023 received from Trial Chamber 1 following hearing on 3rd February 2005 124) Decision on Application for Leave to File and 04/02/05 6024-6026 Interlocutory Appeal Against Decision on Motions for Exclusion of Prosecution Witness Statements and Stay on Filing of Prosecution Statements 125) Oral Decision on Prosecutions Motion for 04/02/05 6027-6030 Protective Measures Pursuant to Order to the Prosecution for Renewed Motion for Protective Measures dated 2nd April 2004 126) Kanu Reply to Prosecution Response to Kanu 04/02/05 6031-6038 Defence Motion for Dismissal of Counts 15-18 of the Indictment Due to an Alibi Defence and Lack of Prima Facie Case 127) Prosecution Application to further amend the 07/02/05 6039-6066 amended consolidated indictment by withdrawing counts 15-18 128) Order for Expedited Filing and Scheduling 07/02/05 6067-6068 Order 129) Order Designating Judicial Recess 08/02/05 6069-6070 130) Order to Prosecution to Provide Order of 09/02/05 6071-6073 Witnesses and Witness Statements 131) Accompanying List of Authorities for Document 10/02/05 6074-6104 Number SCSL-04-16-PT-119 list of documents filed in prosecutor v. brima, kamara, kanu 1967

132) Kanu Request for an Order not to disclose 11/02/05 6105-6107 Photography, Video and Audio Recording of the Trial to the Public and / or Third Parties 133) Kanu – Response to Prosecution Application to 11/02/05 6108-6109 Further amend the amended Indictment by withdrawing Counts 15–18 134) Kanu – Request for extension of time for hearing 11/02/05 6110-6111 of Kanu Defence motion for dismissal of counts 15–18 of the Indictment due to an Alibi Defence and lack of Prima Facie Case of January 20th 2005 135) Letter from the OTP noting there will be no 14/02/05 6112 Reply regarding Defence Responses to Prosecutions Motion to further amend the amended Consolidated Indictment 136) Brima – Response to Prosecution Application to 14/02/05 6113-6114 further amend consolidated indictment by withdrawing counts 15–18 137) Brima – Request for an Order not to disclose 14/02/05 6115-6117 photography, video and audio recording of the Trial to the public and/or 3rd Parties 138) Principal Defenders Decision to Withdraw 15/02/05 6118-6119 Counsel 139) Principal Defenders Decision to Assign New 15/02/05 6120-6123 Counsel 140) Prosecution Response to Kanu Request for 15/02/05 6124-6128 extension of time for hearing of Kanu- Defence Motion for dismissal of Counts 15–18 of the Indictment due to an Alibi Defence and lack of Prima Facie Case of January 20, 2005 141) Decision on the Prosecution Application to 15/02/05 6129-6131 Further Amend the Amended Consolidated Indictment by withdrawing Counts 15–18 142) Corrigendum to the Decision on the Prosecution 15/02/05 6132-6133 Application to Further Amend the Amended Consolidated Indictment by withdrawing Counts 15–18 143) Decision on Kanus Motion for Dismissal of 15/02/05 6134-6136 Counts 15-18 of the Indictment due to an Alibi Defence and Lack of Prima Facie Case and Request for extension of time for the hearing of the Defence motion 1968 part v

144) Kamara – Request for an Order not to Disclose 16/02/05 6137-6140 Photography, Video and Audio Recording of the Trial to the Public and/or Third Parties 145) Defence Pre-Trial Brief for Brima 17/02/05 6141-6188 146) Prosecution Combined Response to Defence 17/02/05 6189-6238 Request for an Order not to Disclose Photography, Video and Audio Recording of the Trial to the Public and/or Third Parties 147) Further Amended Consolidated Indictment 18/02/05 6239-6258 148) Kamara – Pre-Trial Brief 21/02/05 6259-6281 149) Confĳidential Prosecution Proposed Order of 21/02/05 6282-6382 First 10 Witnesses to be called at Trial and their Statements 150) Revised Witness List 21/02/05 6383-6394 151) Brima Reply to Prosecution Combined Response 21/02/05 6395-6414 to Defence Request for an Order not to Disclose Photography, Video and Audio Recording of the Trial to the Public and/or Third Parties 152) Kanu Reply to Prosecution Combined Response 22/02/05 6415-6420 to Defence Request for an Order not to Disclose Photography, Video and Audio Recording of the Trial to the Public and/or Third Parties 153) Kamara Reply to Prosecution combined 22/02/05 6421-6426 response to Defence request for an Order not to disclose Photography, Video and Audio Recording of the Trial to the Public and / or Third Parties 154) Decision on Defence Applications not to 28/02/05 6427-6430 disclose Photography, Video and Audio Recordings of the Trial to the Public and / or third Parties. 155) Confĳidential Prosecution Order of second 10 28/02/05 6431-6698 Witnesses to be called at the Trial and their statements 156) Letter to Presiding Judge of Trial Chamber 2 01/03/05 6699 giving list of Prosecution Team 157) The List of Assigned Counsel as well as their 01/03/05 6700 Status in the respective teams 158) Defence Motion for Defects in the Form of the 01/03/05 6701-6713 Indictment 159) Decision on Confĳidential Motion on Detention 02/03/05 6714-6726 issue list of documents filed in prosecutor v. brima, kamara, kanu 1969

160) Defence Response to Prosecutors Request to 02/03/05 6727-6730 admit 161) Defence request for Disclosure 02/03/05 6731-6732 162) Order Pursuant to Rule 4 02/03/05 6733-6734 163) Prosecution Response to Defence Motion for 03/03/05 6735-6749 Defects in the form of the Indictment 164) Decision on the Defence Motion for Defects 03/03/05 6750-6752 in the form of the Indictment 165) Kanu – Defence Additional Response to 04/03/05 6753-6759 Prosecution Request to Admit 166) Kanu – Motion to Disclose Prosecution 04/03/05 6760-6782 Materials and/or Other Information Pertaining to Rewards Provided to Prosecution Trial Witnesses 167) Renewed Defence Motion for Defects in the 04/03/05 6783-6790 form of the Indictment and application for extension of time (if applicable) 168) Brima Motion in support of Kanu Motion to 04/03/05 6791-6809 Disclose Prosecution Materials and/or Other Information Pertaining to Rewards Provided to Prosecution Trial Witnesses 169) Confĳidential Additional Prosecution Witness 04/03/05 6810-6816 Statements 170) Prosecution Letter to Brima Defence regarding 04/03/05 6817-6819 Disclosure in Relation to Witness TF1-081 171) Brima – Response to prosecutions letter of 04/03/05 6820-6822 4th March 2005 in Response to Request for Disclosure 172) Joint Defence Motion on Admissibility of 07/03/05 6823-6824 Expert-Witnesses/Expert Evidence and Filing of Notice pursuant to Rule 94bis (B)(i) and (ii) 173) Kamara – Defence Response to Prosecutors 07/03/05 6825-6838 Request to Admit 174) Prosecution Response to Renewed Defence 07/03/05 6839-6848 Motion for Defects in the Form of the Indictment and Application for Extension of Time (If Applicable) 175) Combined Prosecution Response to Kanu 07/03/05 6849-6854 and Brima – Motion to Disclose Prosecution Materials and/or Other Information Pertaining to Rewards Provided to Prosecution Witnesses 1970 part v

176) Order regarding the disclosure of the identity 08/03/05 6855-6857 of a protected Witness TF1-081 177) Prosecution Response to Joint Defence 08/03/05 6858-6860 Motion on Admissibility of Expert- Witnesses/ Expert Evidence and Filing of Notice pursuant to Rule 94bis (B)(i) and (ii) 178) Re-fĳiled Defence Request for Disclosure 10/03/05 6861-6862 179) Joint Defence Motion on Disclosure of All 10/03/05 6863-6867 Original Witness Statements, Interview Notes and Investigators Notes Pursuant to Rule 66 and/or 68 180) Joint Reply to Combined Prosecution 10/03/05 6868-6869 Response to Kanu and Brima – Motion to Disclose Prosecution Materials and/or Other Information Pertaining to Rewards Provided to Prosecution Witnesses 181) Confĳidential Additional Prosecution Witness 10/03/05 6870-6874 Statements 182) Urgent and Confĳidential Prosecution 10/03/05 6875-6883 Application to Vary Protective Measures 183) Confĳidential Additional Prosecution Witness 10/03/05 6884-6908 Statements 184) Confĳidential Additional Prosecution Witness 11/03/05 6909-6924 Statements 185) Confĳidential and Under Seal Joint Defence 11/03/05 6925-6937 Motion 186) Joint Confĳidential Defence Notice of 11/03/05 6940-6943 Appeal 187) Joint Confĳidential Defence Appeal Motion 11/03/05 6944-6953 188) Additional Confĳidential Appeal Submissions 14/03/05 6954-6956 189) Joint Confĳidential Defence Motion 14/03/05 6957-6961 190) Defence Joint Response to “Urgent and 14/03/05 6962-6963 Confĳidential Prosecution Application to Vary Protective Measures” of March 10, 2005 191) Joint Confĳidential Defence Motion 14/03/05 6964-6966 192) Joint Confĳidential Defence Index of Record to 14/03/05 6967-6980 Appeal Motion 193) Joint Confĳidential Defence Request 14/03/05 6981-6983 194) Confĳidential Prosecution Response to the Joint 14/03/05 6984-6990 Defence Motion 195) Confĳidential Prosecution Motion 15/03/05 6991-6998 list of documents filed in prosecutor v. brima, kamara, kanu 1971

196) Brima – reply to Prosecution response to 16/03/05 6999-7002 renewed Defence Motion for defects in the form of the Indictment and application for extension of time (if applicable) 197) Confĳidential Joint Defence Response to 17/03/05 7003-7004 Confĳidential Prosecution Motion For Protective Measures For Witness TF1-272 198) Decision on Kanu Motion to Disclose 18/03/05 7005-7006 Prosecution Material and/or Other information pertaining to rewards to Prosecution Trial Witnesses and Brimas Motion in Support 199) Prosecution Letter Regarding Confĳidential 04/04/05 7007-7008 Prosecution Motion for Protective Measures for Witness TF1-272 200) Confĳidential Joint Defence Request for 04/04/05 7009-7014 Disclosure of Independent Investigators Report on Contempt of Court Proceedings and Request for Stay of Proceedings 201) Confĳidential Prosecution Response to the Joint 04/04/05 7015-7043 Defence Notice of Appeal 202) Answer to Joint Defence Request to Inspect 04/04/05 7044-7050 Locus in Quo Concerning Evidence of Witness TF1-024 203) Prosecution Response to Joint Defence 04/04/05 7051-7056 Motion to Declare Null and Void Testimony-in-Chief of Witness TF1-023 204) Order under Rule 117(A) 06/04/05 7057-7058 205) Prosecution Response to Joint Defence 06/04/05 7059-7083 Motion to Exclude all Evidence from Witness TF1-277 Pursuant to Rule 89(c) and/or Rule 95 206) Prosecution Letter Regarding re-fĳiled Defence 06/04/05 7084-7085 Request for Disclosure 207) Prosecution Response to Joint Defence 06/04/05 7086-7092 Motion on Disclosure of all Original Witness Statements, Interview Notes and Investigators Notes Pursuant to Rules 66 and/or 68 208) Confĳidential Additional Pros Witness Statement 08/04/05 7093-7104 209) Confĳidential Joint Defence Reply to 08/04/05 7105-7109 Prosecution Response to Joint Defence Motion to Declare Null and Void Testimony-in-Chief of Witness TF1-023 1972 part v

210) Confĳidential Defence Reply to Prosecution 08/04/05 7110-7114 Answer to the Joint Defence Request to Inspect Locus in Quo Concerning Evidence of Witness TF1-024 211) Joint Defence Application for Leave to Appeal 08/04/05 7115-7122 Against the Ruling of Trial Chamber II of 5th April 2005 212) Confĳidential Index of Record to Joint Defence 08/04/05 7123-7156 Application for Leave to Appeal Against the Ruling of Trial Chamber II of 5th April 2005 213) Confĳidential Additional Prosecution Witness 08/04/05 7157-7243 Statements 214) Confĳidential Additional Prosecution Witness 11/04/05 7244-7251 Statements 215) Prosecution Consolidated Reply to Defence 11/04/05 7252-7256 Responses to Urgent & Confĳidential Pros Application to Vary Protective Measures 216) Confĳidential Joint Defence Reply to Prosecution 11/04/05 7257-7262 Response to the Joint Defence Notice of Appeal 217) Confĳidential Joint Defence Reply to Prosecution 11/04/05 7263-7266 Response to Joint Defence Motion to Exclude all evidence from Witness TF1-277 Pursuant to Rule 89(c) and/or Rule 95 218) Joint Defence Reply to Prosecution Response 12/04/05 7267-7271 to Joint Defence Motion on Disclosure of All Original Witness Statements, Interview Notes and Investigators Notes Pursuant to Rules 66 and/or 68 219) Confĳidential Prosecution Proposed Order 12/04/05 7272-7655 of Third 10 Witnesses to be called at Trial and their statements 220) Prosecution response to joint Defence 14/04/05 7656-7665 request for disclosure of independent investigators report on contempt of Court proceedings and request for stay of proceedings 221) Prosecution response to joint Defence 14/04/05 7666-7675 application for leave to Appeal against the ruling of the Trial Chamber of 5th April 2005 222) Prosecution Submissions on Objection to 14/04/05 7676-7715 Question Put By Defence in Cross-Examination of Witness TF1-227 list of documents filed in prosecutor v. brima, kamara, kanu 1973

223) Decision on Confĳidential Prosecution Motion 15/04/05 7716-7718 for Protective Measures for Witness TF1-272 224) Confĳidential Additional Prosecution Witness 19/04/05 7719-7725 Statements 225) Confĳidential Joint Reply to Prosecution 19/04/05 7726-7729 Response to Joint Defence Application for Leave to Appeal Against the Ruling of Trial Chamber II of 5th April 2005 226) Confĳidential Joint Reply on Prosecution 19/04/05 7730-7734 Response to Defence Request for Disclosure of Independent Investigators Report on Contempt of Court Proceedings and Request for Stay of Proceedings 227) Joint Defence Response to Submissions on 19/04/05 7735-7836 Objection to Question put by Defence in Cross-examination of Witness TF1-227 and Motion to Rule on Additional Information and Order of Witnesses 228) Confĳidential Additional Prosecution witness 19/04/05 7837-7840 Statements 229) Confĳidential Additional Witness Statements 19/04/05 7841-7850 230) Confĳidential Additional Pros Witness 22/04/05 7851-7857 Statements 231) Confĳidential additional Prosecution Witness 22/04/05 7858-7884 Statements 232) Pros Submissions in Response to Relief 25/04/05 7885-7894 requested by Defence in their reply dated 12 April 2005 & in their Response to Submission dated 19 April 2005 233) Confĳidential Prosecution Proposed Order of 25/04/05 7895-8334 4th 10 witnesses to be called at Trial & their statements 234) Confĳidential Additional Prosecution Witness 26/04/05 8335-8338 Statements 235) Prosecution updated witness list 28/04/05 8339-8350 236) List of Defence Authorities to be Submitted 29/04/05 8351-8399 to the Trial chamber in Compliance with Order of Court dated 28/04/2005 237) Decision on the Report of the Independent 29/04/05 8400-8411 Counsel Pursuant to Rules 77(C)iii and 77(D) of the Rules of Procedure and Evidence 1974 part v

238) Corrigendum to the decision on the report 02/05/05 8412-8413 of the independent Counsel Pursuant to Rules 77(C)iii and 77(D) of the Rules of Procedure and Evidence 239) Confĳidential Additional Prosecution Witness 03/05/05 8414-8418 Statements 240) Scheduling Order Detailing Amendments to the 03/05/05 8419-8420 Judicial Calendar 241) Joint Defence Notice of Appeal on Decision on 03/05/05 8421-8426 Independent Counsel 242) Joint Defence Appeal Against Decision on the 03/05/05 8427-8430 Report of Independent Counsel pursuant to Rules 77(C)iii & 77(D) of the Rules of Procedure & Evidence of 29 April 2005 by Trial Chamber II 243) Joint Defence Index of Record on Appeal 03/05/05 8431-8434 Concerning Decision on Independent Counsel 244) Kanu-Defence motion to Inform the Trial 04/05/05 8435-8442 Chamber on the Legal Position of the Defence in View of Contempt of Court Developments 245) Prosecution request for leave to call an 04/05/05 8443-8481 additional witness pursuant to Rule 73bis(E) 246) Decision on Joint Defence motion on 04/05/05 8482-8489 disclosure of all original witness statements, interview notes and investigators’ notes pursuant to Rules 66 and/or 68 247) Prosecutions submissions in response to 05/05/05 8490-8501 application by defence counsel to withdraw from the case 248) Confĳidential Joint Defence Submissions on the 05/05/05 8502-8510 Withdrawal of Counsel in the AFRC case 249) Principal Defender’s Confĳidential Ex Parte 05/05/05 8511-8516 submission Regarding Issues Pertaining to withdrawal of Counsel 250) Confĳidential Additional Prosecution Witness 05/05/05 8517-8523 Statements 251) Confĳidential Prosecution fĳiling of Expert Report 05/05/05 8524-8553 Pursuant to Rule 94(bis) 252) Order to show cause and scheduling Order 05/05/05 8554-8555 253) Confĳidential Joint Defence Motion for General 05/05/05 8556-8583 Orders pursuant to Rule 54 254) Joint Response to Order to Show Cause & 06/05/05 8584-8595 Scheduling Order list of documents filed in prosecutor v. brima, kamara, kanu 1975

255) Confĳidential Kanu-Defence Response to Order 06/05/05 8596-8597 to Show Cause & Scheduling Order 256) Renewed Confĳidential Joint Defence submissions 06/05/05 8598-8607 on the withdrawal of Counsel in the AFRC case 257) Confĳidential Prosecution submissions in 09/05/05 8608-8619 Response to Defence submissions disclosed to the Prosecution in their Unredacted form Pursuant to Order dated 6th May 2005 258) Confĳidential Additional Prosecution Witness 10/05/05 8620-8627 Statements 259) Decision on the Urgent and Confĳidential Pros 11/05/05 8628-8631 Application to Vary Protective Measures Regarding Witnesses TF1-104 & TF1-081 260) Prosecution Response to Joint Defence 12/05/05 8632-8642 Motion for General Orders Pursuant to Rule 54 261) Prosecution Response to Urgent Joint Defence 12/05/05 8643-8652 Motion on Stay of the Contempt Proceedings 262) Prosecution Response to the Joint Defence 12/05/05 8653-8689 Appeal: dated 3 May 2005 263) Evidential Proof of Registry’s repeated 13/05/05 8690-8705 dissemination of confĳidential Defence/ Prosecution trial chamber documents to Press & Public Afffairs 264) Consequential Order on the Role of Court 13/05/05 8706-8707 Appointed Counsel 265) Confĳidential Additional Prosecution Witness 13/05/05 8708-8712 Statements 266) Confĳidential Additional Prosecution Witness 13/05/05 8713-8719 Statement 267) Confĳidential Additional Prosecution Witness 13/05/05 8720-8724 Statement 268) Confĳidential Joint Defence Notice to inform the 13/05/05 8725-8726 Trial Chamber of its position vis a vis the proposed Expert Witness pursuant to Rule 94bis 269) Joint Defence Notice to inform the Trial 13/05/05 8727-8734 Chamber of its position vis a vis the proposed Expert Witness Mrs Bangura pursuant to Rule 94bis 270) Joint Defence response to the Prosecution 13/05/05 8735-8741 request for leave to call an additional Witness pursuant to Rule 73bis(E) 1976 part v

271) Joint Defence reply to Prosecution Response to 16/05/05 8742-8749 Joint Defence Appeal Dated 3 May 2005–05 272) Confĳidential Additional Prosecution Witness 17/05/05 8750-8755 Statement 273) Order for Full Bench under Rule 117(A) 18/05/05 8756-8757 274) Corrigendum to the Order for Full Bench Under 18/05/05 8758-8759 Rule 117(A) 275) Joint Defence Reply to Prosecution Response to 18/05/05 8760-8765 Joint Defence Motion for General Orders Pursuant to Rule 54 276) Pros Combined Reply to “Joint Defence Response 18/05/05 8766-8776 to Prosecution Request for leave to call an Additional Witness Pursuant to Rule 73bis(E)” & “Joint Defence Notice to Inform the Trial Chamber of its Position vis-à-vis The Proposed Expert Witness Mrs. Bangura Pursuant to Rule 94bis” 277) Defence Joint Reply to Pros Combined 19/05/05 8777-8784 Reply to “Joint Defence Response to Prosecution Request for leave to call an Additional Witness Pursuant to Rule 73bis(E)” & Joint Defence Notice to Inform the Trial Chamber of its Position vis-à-vis The Proposed Expert Witness Mrs Bangura Pursuant To Rule 94bis” 278) Decision on the Confĳidential Joint Defence 23/05/05 8785-8800 Application for Withdrawal by Counsel for Brima and Kamara on the Request for Further Representation by Counsel for Kanu 279) Decision on Renewed Defence Motion for 24/05/05 8801-8804 Defects in the Form of the Indictment and Application for EOT 280) Decision on Joint Defence Motion to 24/05/05 8805-8810 Exclude all Evidence from Witness TF1-277 Pursuant to Rule 89(C) and /or Rule 95 281) Extremely Urgent Confĳidential Joint Motion 24/05/05 8811-8841 Re Appointment 282) Corrigendum to Extremely Urgent Confĳidential 25/05/05 8842-8845 Joint Motion Re Appointment 283) Decision on the Confĳidential Joint Defence 25/05/05 8846-8851 Motion to Declare Null & Void Testimony-In-Chief of Witness TF1-023 list of documents filed in prosecutor v. brima, kamara, kanu 1977

284) Joint Defence Application for Leave to 26/05/05 8852-8857 Appeal from Decision on Defence Motion to Exclude All Evidence from Witness TF1-277 285) Scheduling Order on Judicial Notice Motion 27/05/05 8858-8859 286) Joint Defence Motion Pertaining to 27/05/05 8860-8867 Objections to the Nature of the Testimony in Chief of Witness TF1-150 287) Defence Offfĳice’s reply to Doc 281 and 30/05/05 8868-8930 Cross Motion to Trial Chamber II for clarifĳication of its Oral Order of 12th May 2005 and its subsequent decision dated 20th May 2005 288) Principal Defender’s Cross Motion for 30/05/05 8931-8933 Clarifĳication on the Decision on the Confĳidential Joint Defence Application For Withdrawal by Counsel for Brima & Kamara & on the Request for further Representation by Counsel for Kanu 289) Confĳidential Additional Prosecution 31/05/05 8934-8939 Witness Statement 290) 1st Respondents Reply to Extremely 31/05/05 8940-8969 Urgent & Confĳidential Motion for Re-Appointment of Kevin Metzger & Wilbert Harris as Lead Counsel for Alex Tamba Brima & Brima Bazzy Kamara 291) Prosecution Response to Joint Defence 31/05/05 8970-9008 Motion Pertaining to Objections to the Nature of the Testimony in Chief of Witness TF1-150 292) Witness statement and Report TF1-150 31/05/05 9009-9318 293) Corrigendum to Defence Offfĳice’s reply to 31/05/05 9319-9320 Doc 281 and Cross Motion to Trial Chamber II for clarifĳication of its Oral Order of 12th May 2005 and its subsequent decision dated 20th May 2005 294) Order Pursuant to Rule 4 01/06/05 9321-9322 295) Joint Defence Reply to Prosecution Response 02/06/05 9323-9328 to Defence Motion Pertaining to Objections to the Nature of the Testimony-in-Chief of Witness TF1-150 1978 part v

296) Joint Defence Response to 1st Respondents 03/06/05 9329-9340 Reply to Extremely Urgent Confĳidential Joint Motion for the Re-Appointment Of Kevin Metzger & Wilbert Harris as Lead Counsel for Brima & Kamara, Pursuant to Articles 17(4)(C) & 17(4)(D) of the Statute of the SCSL & Rule 54 of the Rules of Procedure & Evidence & the Inherent Jurisdiction of the Court 297) Prosecution Response to Joint Defence 06/06/05 9341-9348 Application for Leave to Appeal from Decision on Defence Motion to Exclude all Evidence from Witness TF1-277 298) 1st Respondents Reply to the Principal Defenders 06/06/05 9349-9351 Cross Motion for Clarifĳication On the Decision of the Confĳidential Joint Defence Application for Withdrawal by Counsel For Brima and Kamara 299) Consequential submissions on the Motion 06/06/05 9352-9363 for Judicial Notice and admission of Evidence fĳiled on 2nd April 2004 300) Defence Offfĳice Reply to 1st Respondents 08/06/05 9364-9365 Reply to the Principal Defenders Cross Motion for Clarifĳication On the Decision of the Confĳidential Joint Defence Application for Withdrawal by Counsel For Brima and Kamara 301) Joint Defence Response to Prosecution 09/06/05 9366-9381 consequential submissions on the Motion for Judicial Notice and Admission of Evidence fĳiled on 2 April 2004 and request for extension of page limit 302) Joint Defence Reply to Prosecution Response 09/06/05 9382-9385 to Defence Application for leave to Appeal from Decision on Defence Motion to exclude all evidence from Witness TF1-277 303) Corrigendum to doc 296 09/06/05 9386-9387 304) Order on Filing of Document 09/06/05 9388-9389 305) Decision on the extremely Urgent confĳidential 09/06/05 9390-9400 joint Motion for the Re-appointment of Kevin Metzger and Wilbert Harris as Lead Counsel for Alex Tamba Brima, and Brima Bazzy Kamara and Decision on Cross Motion by Deputy Principal Defender to Trial Chamber II for Clarifĳication of its Oral Order of 12th May 2005 list of documents filed in prosecutor v. brima, kamara, kanu 1979

306) Corrigendum Decision on the Confĳidential Joint 10/06/05 9401-9402 Defence Application for Withdrawal by Counsel for Brima And Kamara and on the Request for further Representation by Counsel for Kanu 307) Decision on Objection to Question put by 15/06/05 9403-9411 Defence in Cross-Examination of Witness TF1-227 308) Decision on Joint Defence Application for Leave 15/06/05 9412-9416 to Appeal against the Ruling of Trial Chamber II of 5th April 2005 309) Confĳidential Decision on Prosecution Motion for 15/06/05 9417-9424 Protective Measures for Witness TF1-272 310) Decision on Confĳidential Joint Defence 16/06/05 9425-9428 Request to Inspect Locus in Quo Concerning Evidence of Witness TF1-024 311) Decision on joint Defence Motion on 17/06/05 9429-9434 Admissibility of Expert Witnesses / Expert evidence and fĳiling of Notice Pursuant to Rule 94bis(B)(i) and (ii), on refĳilled Defence Request for Disclosure, and on the joint Defence Motion for exclusion of Medical information, Statistics and Abstracts pertaining to Witnesses TF1-081 and TF1-188 312) Decision on Joint Defence Motion Pertaining 17/06/05 9435-9441 to objections to the Nature of the Testimony in Chief of Witness TF1-150 313) Order for a written representation from the 21/06/05 9442-9443 Registrar pursuant to Rule 33 314) Order Designating Judicial Recess 23/06/05 9444-9445 315) Decision on Defence Appeal Motion Pursuant to 23/06/05 9446-9495 Rule 77(J) on Both the Imposition of Interim Measures and an Order Pursuant to Rule 77(iii) 316) Written representation from the Registrar to 27/06/05 9496-9500 Defence Submissions providing Evidentiary Proof of Registry’s repeated dissemination of confĳidential Defence / Prosecution Trial Chamber Documents to Press and Public Afffairs 317) Confĳidential additional Prosecution Witness 27/06/05 9501-9506 Statement 318) Confĳidential Additional Prosecution Witness 29/06/05 9507-9513 Statement 1980 part v

319) Decision on Confĳidential Defence Request 30/06/05 9514-9516 for Disclosure of Independent Investigator’s Report On Contempt of Court Proceedings and Request for Stay Of Proceedings 320) Prosecution Order of fĳifth 10 Witnesses to be 30/06/06 9517-13528 called at Trial and their Statements 321) Confĳidential Additional Prosecution Witness 1/07/05 13529-13565 Statement 322) Confĳidential Additional Prosecution Witness 1/07/05 13566-13572 Statement 323) Confĳidential Additional Prosecution 05/07/05 13573-13577 Witness Statement 324) Order Under Rule 16 to Continue Trial in 05/07/05 13578-13579 Absence of a Judge 325) Prosecution Request for Leave to Call 06/07/05 13580-13585 Additional Witness Pursuant to Rule 73bis(E) 326) Confĳidential Additional Witness Statement 07/07/05 13586-13592 327) Confĳidential Additional Prosecution Witness 08/07/05 13593-13597 Statement 328) Confĳidential Additional Prosecution Witness 08/07/05 13598-13607 Statement 329) Kanu – Defence Response to Prosecution 08/07/05 13608-13618 Request for Leave to Call an Additional Witness Pursuant to Rule 73bis(E) 330) Dissenting Opinion of the Hon. Justice 11/07/05 13619-13655 Sebutinde 331) Brima-Defence Response to Prosecution 11/07/05 13656-13657 Request for Leave to Call an Additional Witness Pursuant to Rule 73bis(E) 332) Confĳidential Additional Prosecution Witness 11/07/05 13658-13662 Statement 333) Confĳidential Additional Prosecution Witness 12/07/05 13663-13799 Statement 334) Confĳidential prosecution proposed order of 12/07/05 13800-13897 next 11 witnesses to be called at trial and their statements 335) Confĳidential Additional Prosecution Witness 12/07/05 13898-13902 Statements 336) Prosecution joint reply to Kanu and Brima 13/07/05 13903-13908 Defence Response to Prosecution request for leave to call an additional Witness pursuant to Rule 73bis(E) list of documents filed in prosecutor v. brima, kamara, kanu 1981

337) Confĳidential Additional Prosecution Witness 13/07/05 13909-13916 Statements 338) Confĳidential Additional Prosecution Witness 13/07/05 13917-13921 Statements 339) Confĳidential Additional Prosecution 14/07/05 13922-13927 Witness Statement 340) Brima & Kanu Defence Appln for Leave to 14/07/05 13928-13985 Appeal Decision on the Extremely Urgent & Confĳidential Joint Motion for Re-Appointment of Lead Counsel for Brima & Kamara & Decision on X-Motion by Dep. Prin. Def. to TC2 for Clarifĳication of its oral order 12 May 2005 341) Confĳidential Additional Prosecution Witness 15/07/05 13986-13996 Statements 342) Corrigendum to Document 15/07/05 13997-13999 No. SCSL-04-16-T-340 343) Confĳidential Additional Prosecution Witness 20/07/05 14000-14133 Statements 344) Confĳidential Additional Prosecution Witness 21/07/05 14134-14139 Statements 345) Principal Defenders response to document 340 22/07/05 14140-14146 346) 1st Respondents response to Document 340 22/07/05 14147-14154 347) Corrigendum to the dissenting opinion of 25/07/05 14155-14157 Justice Sebutinde (Doc 330) 348) Confĳidential additional prosecution witness 25/07/05 14158-14173 statements 349) Confĳidential Joint Defence Motion to exclude 25/07/05 14174-14180 evidence given by Witness TF1-157 and evidence to be given by Witness TF1-158 350) Principal Defender’s Decision to Assign 26-07-05 14181-14183 Counsel 351) Scheduling Order 26/07/05 14184-14185 352) Principal Defender’s Decision to Assign 26-07-05 14186-14188 Counsel 353) Respondents response to documents 27/06/05 14189-14196 345 and 346 354) Decision on Joint Defence Motion for General 28/07/05 14197-14206 Orders pursuant to Rule 54 355) Modifĳied Scheduling Order to the Judicial 01/08/05 14207-14208 Calendar 356) Order Pursuant to Rule 4 01/08/05 14209-14210 357) Order Pursuant to Rule 4 02/08/05 14211-14212 1982 part v

358) Decision on Joint Defence Application for Leave 02/08/05 14213-14216 to Appeal from Decision on Defence Motion to Exclude All Evidence from Witness TF1-277 359) Prosecution Response to Confĳidential Joint 02/08/05 14217-14224 Defence Motion to exclude evidence given by Witness TF1-157 and evidence to be given by Witness TF1-158 360) Renewed Witness List 03/08/05 14225-14236 361) Confĳidential Prosecution Witness Statements 03/08/05 14237-14373 362) Dress code for Court 04/08/05 14374-14375 363) Confĳidential Joint Defence Reply to Prosecution 04/08/05 14376-14383 Response to Confĳidential Urgent Joint Defence Motion to Exclude Evidence Given by TF1-157 And Evidence to be given by Witness TF1-158 Based on Lack of Authenticity and Violation of Rule 95 364) Corrigendum to Principal Defender’s Decision 04/08/05 14384 to Assign Counsel in the Alex Tamba Brima case 365) Decision on Prosecution request to call an 05/08/05 14385-14397 additional witness (Zainab Hawa Bangura) Pursuant to rule 73bis(E) and on Joint Defence Notice to inform the Trial Chamber of it’s position vis-a-vis the proposed expert witness Pursuant to rule 94bis 366) Decision on Prosecution request for leave to 05/08/05 14398-14403 call an Additional Witness Pursuant to Rule 73bis(E) 367) Decision on Brima – Kamara Application for 05/08/05 14404-14408 leave to Appeal from the Decision on the re-appointment of Kevin Metzger and Wilbert Harris as Lead Counsel 368) Prosecution Filing of Expert Report pursuant to 05/08/05 14409-14471 Rule 94bis 369) Prosecution Filing on Expert Report Pursuant to 08/08/05 14472-14505 Rule 94bis and Decision on Prosecution Request for Leave to call an Additional Expert Witness 370) Separate and Dissenting Opinion of Justice 09/08/05 14506-14513 Sebutinde in the Decision on the Confĳidential Joint Defence Application for Witdrawl by Counsel for Brima and Kamara and on the Request for Further Representation by Counsel for Kanu list of documents filed in prosecutor v. brima, kamara, kanu 1983

371) Separate and Dissenting Opinion of Justice 09/08/05 14514-14518 Sebutinde in the Decision on the Confĳidential Joint Defence Motion to Declare Null and Void the Testimony of Witness TF1-023 372) Prosecution Filing of Additional Witness 12/08/05 14519-14524 Statement pursuant to Decision on Prosecution Request for Leave to call Additional Witness pursuant to Rule 73bis(e) 373) Decision on Joint Defence Appeal Against 17/08/05 14525-14553 The Decision on the Report of the Independent Counsel Pursuant to Rule 77(c)(iii) and 77(d) 374) Joint Defence Notice to inform the Trial 29/08/05 14554-14555 Chamber of its intent to Cross-examine Prosecution Expert witness TF1-301 pursuant to Rule 94bis (B)(ii) 375) Brima – Kamara notice of Appeal re refusal 02/09/05 14556-14575 to re-appoint Counsel 376) Kanu – Defence Motion for temporary 07/09/05 14576-14584 provisional release to allow the Accused to visit his Mother’s grave 377) Kanu – Defence additional documents to 09/09/05 14585-14597 Motion for temporary provisional release to allow the accused to visit his Mother’s grave 378) Defence response to Brima – Kamara 09/09/05 14598-14677 Defence Appeal Motion pursuant to Article II of the Practice Direction for Certain Appeals before the Special Court 379) 1st Respondents Response to the Interlocutory 12/09/05 14678-14706 Appeal of Brima and Kamara 380) Confĳidential Additional Prosecution Witness 12/09/05 14707-14718 Statements 381) Corrigendum to Defence response 13/09/05 14719-14721 (doc 378) 382) Prosecution Response to Kanu Defence 13/09/05 14722-14724 Motion for temporary provisional release to allow the accused to visit his Mother’s grave 383) First Respondent’s additional Motion to the 13/09/05 14725-14727 Interlocutory Appeal of Brima and Kamara and the Response by the Principal Defender (Second Respondent) 1984 part v

384) Separate and concurring opinion of Justice 14/09/05 14728-14731 Lussick on Brima / Kamara Application for leave to Appeal from the Decision on the Re-Appointment of Kevin Metzger and Wilbert Harris as Lead Counsel 385) Kanu – Defence reply to Prosecution 15/09/05 14732-14735 Response to Motion for Temporary Provisional release to allow the accused to visit his Mother’s grave 386) Confĳidential additional Prosecution Witness 15/09/05 14736-14811 Material 387) Second Respondents Response to the 16/09/05 14812-14815 First Respondents additional Motion to the Interlocutory Appeal of Brima and Kamara and the Response by the Principal Defender 388) Brima – Kamara joint Defence reply to 1st 16/09/05 14816-14833 Respondent’s Response to the interlocutory Appeal of Brima and Kamara 389) Decision on the Prosecution’s Oral 16/09/05 14834-14839 Application for leave to be granted to witness TF1-150 to testify without being compelled to answer any questions in Cross Examination that the Witness declines to answer on the grounds of confĳidentiality pursuant to Rule 70(B) and (D) of the rules 390) Prosecution Application for Leave to 19/09/05 14840-14856 Appeal Decision on Oral Application for witness TF1-150 to Testify without being compelled to answer questions on grounds of confĳidentiality 391) Confĳidential Additional Prosecution 21/09/05 14857-14861 Witness Statement 392) Prosecution Motion for a Locus in Quo 22/09/05 14862-14886 visit to Karina, Bombali District, The Republic of Sierra Leone 393) Order for a written representation from the 23/09/05 14887-14888 Registrar Pursuant to Rule 33 on Security Measures for a Potential Temporary release of the accused Kanu list of documents filed in prosecutor v. brima, kamara, kanu 1985

394) Dissenting Opinion of Justice Doherty on the 23/09/05 14889-14895 Prosecution Oral Application for Leave to be Granted to Witness TF1-150 to Testify without being compelled to answer any questions in Cross-Examination that the witness declines to answer on grounds of Confĳidentiality Pursuant to Rule 70(B) and (D) of the rules 395) Re-issued Dissenting Opinion of Justice Doherty 23/09/05 14896-14902 on the Prosecution Oral Application for Leave to be Granted to Witness TF1-150 to Testify without being compelled to answer any questions in Cross-Examination that the witness declines to answer on grounds of Confĳidentiality Pursuant to Rule 70(B) and (D) of the rules 396) Joint Defence Response to Prosecution 23/09/05 14903-14910 Application for Leave to Appeal Decision on Oral Application for Witness TF1-150 to testify without being compelled to answer questions on grounds of confĳidentiality 397) Confĳidential Additional Prosecution Witness 26/09/05 14911-15030 Statement 398) Confĳidential Additional Prosecution Witness 27/09/05 15031-15108 Statement 399) Prosecution Reply to Joint Defence Response to 27/09/05 15109-15115 Application for Leave to appeal Decision on Oral Application for Witness TF1-150 to Testify Without being Compelled to Answer Questions On Grounds of Confĳidentiality 400) Joint Defence Motion for Leave to Recall 28/09/05 15116-15118 Witness TF1-023 401) Prosecution Response to Joint Defence 30/09/05 15119-15130 Motion for Leave to Recall Witness TF1-023 402) Registrar’s Representations on the Motion 30/09/05 15131-15139 of the Accused Kanu for Temporary Provisional Release 403) Confĳidential Registrar’s Supplementary 30/09/05 15140-15141 Representations on the Motion of the Accused Kanu for temporary Provisional Release 404) Scheduling Order on Filing of a Motion for 30/09/05 15142-15143 Judgement of Acquittal 1986 part v

405) Confĳidential Additional Prosecution Witness 03/10/05 15144-15239 Statement 406) Joint Defence Response to Prosecution 03/10/05 15240-15245 Motion for a Locus in Quo Visit to Karina, Bombali District, The Republic of Sierra Leone 407) Corrigendum to Registrar’s Representations 06/10/05 15246-15247 on the Motion of the Accused Kanu for Temporary Provisional Release 408) Confĳidential Additional Prosecution witness 06/10/05 15248-15255 Statement 409) Prosecution Reply to Joint Defence Response 07/10/05 15256-15261 to Prosecution Motion for a Locus in Quo visit to Karina, Bombali District, The Republic of Sierra Leone 410) Confĳidential Prosecution Witness Statement 10/10/05 15262-15315 411) Order Under Rule 16 to Continue Trial in the 11/10/05 15316-15317 Absence of a Judge 412) Decision on Confĳidential Urgent Joint 10/10/05 15318-15323 Defence Motion to Exclude Evidence given by Witness TF1-157 and Evidence to be given by Witness TF1-158 based on lack of authenticity and violation of Rule 95 413) Order for a written representation from the 10/10/05 15324-15325 Registrar Pursuant to Rule 33 on Security Measures for a site visit to Karina Town in the Bombali District of Sierra Leone 414) Decision on Prosecution Application for Leave 12/10/05 15326-15328 to Appeal Decision on Oral Application for Witness TF1-150 to testify without being compelled to answer questions on grounds of confĳidentiality 415) Written Representation from the Registrar on 14/10/05 15329-15331 Security Measures for a site visit to Karina Town in Bombali District of Sierra Leone 416) Decision on Defence submissions providing 18/10/05 15332-15345 evidentiary proof of Registry’s repeated dissemination of confĳidential Documents to the Press and Public afffairs Offfĳice 417) Order for a Full Bench 18/10/05 15346-15348 list of documents filed in prosecutor v. brima, kamara, kanu 1987

418) Decision on the Defence Motion for the 19/10/05 15349-15353 Temporary Provisional Release to allow the accused Santigie Borbor Kanu to visit his mothers grave 419) Prosecution Appeal against Decision on Oral 20/10/05 15354-15393 Application for Witness TF1-150 to Testify without being compelled to answer questions on the grounds of confĳidentiality 420) Separate & Concurring Opinion of Justice 24/10/05 15394-15408 Doherty on Prosecution Request for Leave to Call an Additional Witness Pursuant to Rule 73bis (E) & Joint Defence Application to Exclude the Expert Evidence of Zainab Hawa Bangura or Alternatively to Cross- Examine her Pursuant to Rule 94bis 421) Order Pursuant to Rule 4 25/10/05 15409-15410 422) Order designating Judicial Recess 25/10/05 15411-15412 423) Decision on the Prosecution Motion for Judicial 25/10/05 15413-15428 Notice & Admission of Evidence 424) Decision on Prosecution Motion for a Locus in 25/10/05 15429-15434 Quo visit to Karina, Bombali District, The Republic of Sierra Leone 425) Decision on joint Defence Motion for leave to 26/10/05 15435-15440 recall witness TF1-023 426) Joint Defence Response to Prosecution Appeal 27/10/05 15441-15500 Against Decision on Oral Application for Witness TF1-150 to Testify without being compelled to Answer questions on grounds of Confĳidentiality 427) Reply to Joint Defence Response to Prosecution 31/10/05 15501-15521 Appeal Against Decision on Oral Application for Witness TF1-150 to Testify without being compelled to Answer questions on grounds of Confĳidentiality 428) Prosecution Notice Pursuant to Rule 92bis to 01/11/05 15522-16651 Admit Information into Evidence 429) Order under Rule 117(A) 11/11/05 16652-16653 430) Joint Defence Objection to Prosecution Notice Pursuant to Rule 92bis to Admit Information into Evidence 1988 part v

431) Decision on Prosecution Tender for 18/11/05 16671-16686 Admission into Evidence of Information Contained in Notice Pursuant to Rule 92bis 432) Prosecution Supplemental fĳiling pertaining to the 21/11/05 16687-16753 Decision on Prosecution Tender for Admission into evidence of information contained in Notice Pursuant to Rule 92bis dated 18 November 2005 433) Confĳidential Prosecution Filing for identifĳication 21/11/05 16754-16779 of MFI 1, MFI 2 and MFI 3 434) Consequential Order to the Decision on 23/11/05 16780-16781 Prosecution Tender for Admission into Evidence of Information Contained in Notice Pursuant to Rule 92bis 435) Order on the Appointment of Amicus Curiae 24/11/05 16782-16784 436) Order Appointing Full Bench 24/11/05 16785-16787 437) Application of United Nations High 25/11/05 16788-16798 Commissioner for Human Rights for Leave to make written submissions as Amicus Curiae in Prosecution Appeal against Decision on Oral Application for Witness TF1-150 to Testify without being compelled to answer questions on grounds of confĳidentiality 438) Order on the Appointment of Amicus Curiae 28/11/05 16799-16801 439) Order on the Appointment of Amicus Curiae 02/12/05 16802-16804 440) Corrigendum to Order on the Appointment of 05/12/05 16805-16806 Amicus Curiae 441) Decision on Brima Kamara Defence 08/12/05 16807-16958 Appeal Motion against Trial Chamber II Majority Decision on extremely urgent confĳidential Joint Motion for the re-appointment of Kevin Metzger and Wilbert Harris as Lead Counsel for Alex Tamba Brima and Brima Bazzy Kamara. Together with separate concurring opinions 442) Brima – Motion for Acquittal Pursuant to 12/12/05 16959-16986 Rule 98 443) Defence Motion for Judgment of Acquittal 12/12/05 16987-17018 of the second Accused – Brima Bazzy Kamara 444) Kanu-Factual Part Defence Motion for 13/12/05 17019-17045 Judgement of Acquittal Under Rule 98 445) Joint Defence Legal Part Defence Motion for 13/12/05 17046-17114 Judgment of Acquittal under Rule 98 list of documents filed in prosecutor v. brima, kamara, kanu 1989

446) Appendix to the Separate and Concurring 14/12/05 17115-17123 Opinion of Justice Robertson on the Decision on Brima-Kamara Defence Appeal Motion against Trial Chamber 11 Majority Decision on Extremely Urgent Confĳidential Joint Motion for the Reappointment of Kevin Metzger And Wilbert Harris as Lead Counsel for Alex Tamba Brima and Brima Bazzy Kamara 447) Joint Defence Request under Rule 54 with 15/12/05 17124-17129 Respect to Filing of Motion for Acquittal 448) Order Pursuant to Rule 4 15/12/05 17130-17131 449) Prosecution Response to Urgent Joint Defence 15/12/05 17132-17138 request under Rule 54 450) Joint Defence Reply to Prosecution Response to 16/12/05 17139-17146 Urgent Joint Defence Request under Rule 54 with Respect to Filing of Motion for Acquittal 451) Amicus Curiae Brief of the United Nations High 16/12/05 17147-17173 Commissioner for Human Rights 452) Amicus Curiae Brief of Amnesty International 16/12/05 17174-17190 Concerning The Public Interest Information Privilege 453) Amicus Curiae Submission Filed Under 16/12/05 17191-17293 Rule 74 of the Rules of Procedure and Evidence of the Special Court for Sierra Leone on behalf of Human Rights Watch 454) Joint Defence Response to the 3 Amicus Curiae 17/01/06 17294-17335 Briefs by Human Rights Watch, Amnesty International and the United Nations High Commissioner for Human Rights 455) Corrigendum to the Joint Defence Response to 18/01/06 17336-173383 the Amicus Curiae Briefs by Human Rights Watch, Amnesty International and the United Nations High Commissioner for Human Rights 456) Decision on Urgent Defence Request under Rule 20/01/06 17339-17341 54 with Respect to Filing of Motion for Acquittal 457) Order Designating Judicial Recess 20/01/06 17342-17343 458) Prosecution Response to Defence Motions for 23/01/06 17344-17533 Judgment of Acquittal Pursuant to Rule 98 459) Public Version of the Prosecution Response to 27/01/06 17534-17655 Defence Motions for Judgement of Acquittal Pursuant to Rule 98 1990 part v

460) Confĳidential Kanu Defence Reply to Prosecution 27/01/06 17656-17666 Response to Defence Motions for Judgment Of Acquittal Pursuant to Rule 98 461) Joint Legal Reply to Prosecution Response to 30/01/06 17667-17674 Defence Motion for Judgement of Acquittal 462) Factual – Reply to Prosecution Response to 30/01/06 17675-17678 Defence Motion for Judgement of Acquittal – Kamara 463) Factual – Reply to Prosecution Response to 30/01/06 17679-17683 Defence Motion for Judgement of Acquittal – Brima 464) Principal Defenders Motion to review the 31/01/06 17684-17845 Registrar’s Decision to install surveillance cameras in the Detention facility of the Special Court for Sierra Leone 465) Kanu – Defence Reply to Prosecution 02/02/06 17846-17858 Response to Defence Motion for Judgement of Acquittal Pursuant to Rule 98 (Public Version) 466) Interim Registrar’s Response to Principal 08/02/06 17859-17878 Defenders Motion to review the Registrar’s Decision to install surveillance cameras in the Detention facility of the Special Court for Sierra Leone 467) Reply to Interim Registrar’s Response to 14/03/06 17879-17888 Principal Defenders Motion to review the Registrar’s Decision to install surveillance cameras in the Detention facility of the Special Court for Sierra Leone 468) Notice of Hearing 29/03/06 17889 469) Decision on Defence Motions for Judgment of 31/03/06 17890-17991 Acquittal pursuant to Rule 98 470) Decision on Principal Defenders Motion for a 03/04/06 17992-17993 review of the Registrar’s Decision to install surveillance cameras in the Detention Facility of the Special Court for Sierra Leone 471) Joint Defence Request for Leave to Appeal from 03/04/06 17994-18007 Defence Motions for Judgment of Acquittal Pursuant to Rule 98 of 31 March 2006 472) Corrigendum to the separate and concurring 04/04/06 18008-18009 opinion of Justice Sebutinde on Defence Motion for Judgment of Acquittal pursuant to Rule 98 473) Order Pursuant to Rule 4 05/04/06 18010-18011 list of documents filed in prosecutor v. brima, kamara, kanu 1991

474) Public Notice of Orders to be sought pursuant to 06/04/06 18012-18016 Rule 73ter 475) Prosecution Response to joint Defence Request 25/04/06 18017-18061 for leave to Appeal from Defence Motions for Judgment of acquittal pursuant to Rule 98 of 31 March 2006 476) Joint Defence Application for Protective 25/04/06 18062-18068 measures for Defence Witnesses 477) Joint Response to Prosecution Notice of 25/04/06 18069-18076 Orders to be sought pursuant to Rule 73ter 478) Order for Disclosure pursuant to Rule 73ter and 26/04/06 18077-18078 the start of the Defence case 479) Public annexes to Motion entitled “Joint 28/04/06 18079-18089 Defence Application for protective measures for Defence Witnesses” 480) Public Joint Defence to Public Prosecution 01/05/06 18090-18097 Response to joint Defence Request for leave to Appeal from Decision on Defence Motions for Judgment of acquittal pursuant to Rule 98 of 31 March 2006 481) Prosecution Response to Public Joint Defence 01/05/06 18098-18108 Application for Protective Measures for Defence Witnesses 482) Prosecution Motion to bring forward the next 01/05/06 18109-18113 scheduled Status Conference 483) Decision on Joint Request for leave to appeal 04/05/06 18114-18116 from Decision on defence motions for Judgment of acquittal Pursuant to Rule 98 of 31 March 2006 484) Public Joint Defence Response to Prosecution 05/05/06 18117-18120 Motion to bring forward the next scheduled Status Conference 485) Prosecution Reply to Defence Response to 05/05/06 18121-18123 Prosecution Motion to bring forward the next scheduled Status Conference 486) Decision on Prosecution Motion to bring 08/05/06 18124-18125 forward the next scheduled Status Conference 487) Joint Defence Reply to Prosecution Response to 08/05/06 18126-18133 Defence Application for Protective Measures for Defence Witnesses 488) Decision on Joint Defence application for 09/05/06 18134-18136 Protective measures for Defence Witnesses 1992 part v

489) Confĳidential Joint Defence Motion as to the 09/05/06 18137-18146 Inability to Provide Details of certain Witnesses on 10 May 2006 and anticipation of Subpoenas Ad Testifĳicandum 490) Confĳidential Joint Defence Disclosure 10/05/06 18147-18235 Pursuant to Trial Chamber Order of 26 April 2006 491) Prosecution Response to Joint Defence Motion 15/05/06 18236-18239 dated 9 May 2006 492) Confĳidential Joint Defence Reply to Prosecution 16/05/06 18240-18245 Response to Defence Motion as to the Inability to Provide Details of Certain Witnesses on 10 May 2006 and Anticipation Subpoenas Ad Testifĳicandum 493) Confĳidential Joint Defence disclosure of 17/05/06 18246-18249 identifying Data of fĳirst fĳive Defence Witnesses Pursuant to Trial Chamber Order of 17 May 2006 494) Decision on Confĳidential Joint Defence 17/05/06 18250-18252 Motion as to inability to provide details of certain Witnesses on 10 May 2006 and anticipation of Subpoenas Ad Testifĳicandum 495) Joint Defence Motion for Protective 18/05/06 18253-18256 measures for witness DBK-088 496) Prosecution Letter noting there will be no 19/05/06 18257 response regarding the Joint Defence Motion for Protective measures for Witness DBK 088 497) Decision on Joint Defence Motion for Protective 19/05/06 18258-18259 Measures for witness DBK-088 498) Joint Defence disclosure Pursuant to Trial 19/05/06 18260-18261 Chamber Order of 17th May 2006 499) Confĳidential Urgent Prosecution Motion on 22/05/06 18262-18268 Witness Call Order 500) Confĳidential Prosecution Response to Joint 22/05/06 18269-18271 Defence Disclosure Dated 19 May 2006 501) Order on Urgent Prosecution Motion on 22/05/2006 18272-18273 Witness Call Order and Scheduling Order 502) Confĳidential Joint Defence Response to 22/05/06 18274-18277 Prosecution Motion on Witness Order and Defence Witness Order of fĳirst seventeen Witnesses and their identifying data 503) Confĳidential Joint Defence disclosure of 23/05/06 18278-18282 Summary of Witness DBK-094 list of documents filed in prosecutor v. brima, kamara, kanu 1993

504) Confĳidential Defence Disclosure Pursuant to 25/05/06 18283-18287 Trial Chamber’s Order of 17 May 2006 505) Decision on Urgent Prosecution Motion on 25/05/06 18288-18289 Witness Call Order 506) Decision on Prosecution Appeal against 25/05/06 18290-18332 Decision on Oral Application for witness TF1-150 to Testify without being compelled to answer questions on grounds of confĳidentiality AND separate and concurring Opinion of Hon Justice Geofffrey Robertson QC. 507) Order Scheduling Judicial Recess and 15/06/06 18333-18334 Authorisation pursuant to Rule 4 508) Prosecution Motion for Relief in Respect of 07/07/06 18335-18342 Violations of Rule 67 509) Confĳidential Joint Defence Disclosure of 11/07/06 18343-18346 Witness Order with the Second Set of Fourteen Witnesses and their Identifying Data 510) Kanu Response to Prosecution Motion 12/07/06 18347-18350 for relief in Respect of violations of Rule 67 511) Scheduling Order to the Judicial Calendar 12/07/06 18351-18352 512) Public Brima Response to Prosecution 13/07/06 18353-18355 Motion for Relief in Respect of Violations of Rule 67 513) Prosecution Reply to Defence Responses to 14/07/06 18356-18541 Prosecution Motion for relief in respect of violations of Rule 67 514) Supplement to Prosecution Reply to Defence 18/07/06 18542-18561 Response to Prosecution Motion for relief in respect of violations of Rule 67 515) Order under Rule 16 to continue Trial in the 20/07/06 18562-18563 Absence of a Judge 516) Confĳidential joint Defence Disclosure of 21/07/06 18564-18567 identifying Data of third set of 18 witnesses 517) Urgent Joint Defence Application for a Status 25/07/06 18568-18570 Conference Pursuant to Rule 54 of the Rules of Procedure and Evidence of the Special Court for Sierra Leone 518) Prosecution Motion to Re-Open the 25/07/06 18571-18603 Prosecution case to Present an additional Prosecution Witness 519) Confĳidential ex-parte Annex to 25/07/06 18604-18606 Document 518 1994 part v

520) Decision on Urgent Joint Defence application 26/07/06 18607-18609 for a Status Conference pursuant to Rule 54 of the Rules of Procedure and Evidence of the Special Court for Sierra Leone and consequential Orders 521) Decision on Prosecution Motion for relief in 26/07/06 18610-18616 respect of violations of Rule 67 522) Urgent Prosecution Motion for an Order 27/07/06 18617-18694 Restricting Contacts Between the Accused and Defence Witnesses and requiring disclosure of such contacts 523) Authorisation Pursuant to Rule 4 27/07/06 18695-18696 524) Confĳidential Brima Request for extension of 31/07/06 18697-18699 time to fĳile disclosures pursuant to Rule 67(A)(ii) 525) Prosecution Motion for relief in respect of 02/08/06 18700-18705 violations of the Trial Chamber Decision of 9 May 2006 526) Confĳidential Brima Defence Alibi Notice 03/08/06 18706-18708 Pursuant to Article 67(A)(ii) of the Rules of Procedure and Evidence 527) Confĳidential Brima Defence additional Alibi 04/08/06 18709-18712 Notice fĳiled to the Orders of Trial Chamber 11 dated 4 August 2006 528) Confĳidential Joint Defence Response to 04/08/06 18713-18723 Prosecution Motion to Re-Open the Prosecution case and present an additional witness 529) Confĳidential Prosecution Reply to Joint Defence 21/08/06 18724-18731 Response to Motion to Reopen the Prosecution Case to Present an Additional Prosecution Witness 530) Confĳidential Joint Defence Disclosure of 21/08/06 18732-18748 Individual Witnesses for the 1st and 2nd Accused Pursuant to the Order of the Trial Chamber II 531) Public Joint Defence Response to Prosecution 21/08/06 18749-18755 Motion for Relief in Respect of Alleged Viola- tions of Trial Chamber’s Decision of 9 May 2006 532) Joint Defence Application for Protective 21/08/06 18756-18759 Measures For Defence Witnesses Appearance From 4th September, 2006 Onwards list of documents filed in prosecutor v. brima, kamara, kanu 1995

533) Public Joint Defence Response to Prosecution 21/08/06 18760-18789 Motion for an Order Restricting Contacts between the Accused and Defence Witnesses and Requiring Disclosure of Such Contacts 534) Confĳidential Kanu-Defence Filing of Witness List 21/08/06 18790-18855 Pursuant to Trial Chamber order of 17 May 2006 535) Joint Defence Disclosure of Expert Report on 21/08/06 18856-18881 Forced Marriages By Dr. Dorte Thorsen 536) Joint Defence Disclosure of Military Expert 22/08/06 18882-18970 Report By Major-General (Retired) W.A.J. Prins 537) Prosecution Reply To Defence Response To 28/08/06 18971-18977 Motion For An Order Restricting Contacts Between The Accused And Defence Witnesses And Requiring Disclosure Of Such Contacts 538) Prosecution Reply To Defence Response To 28/08/06 18978-18984 Motion For Relief In Respect Of Violations Of The Trial Chamber’s Decision Of 9 May 2006 539) Urgent Prosecution Motion For relief In 29/08/06 18985-18991 Respect of Violations Of The Trial Chamber’s Order Of 26 April 2006 540) Notice of Intention to Challenge Expert 30/08/06 18992-18993 Statement on Forced Marriages by Dr. Dorte Thorsen and to Cross–Examine Expert Witness 541) Notice of Intention to Challenge Military 30/08/06 18994-18995 Expert Statement by Major–General (retired) W.A.J. Prins and to Cross–Examine Expert Witness 542) Prosecution Response to Joint Defence 31/08/06 18996-19001 Application for Protective Measures for Defence Witnesses Appearing from 4 September 2006 Onwards 543) KANU-Defence Response to ‘Urgent Prosecution 01/09/06 19002-19010 Motion for Relief in Respect of Violations of the Trial Chamber’s Order of 26 April 2006’ and Prosecution Violation of Rule 46(c) 544) Confĳidential Joint Defence Disclosure of 01/09/06 19011-19015 Identifying Data of Fourth Set of Thirty Two Witnesses 545) Joint Defence Reply to Prosecution Response to 05/09/06 19016-19021 Defence Application for Protective Measures for Defence Witnesses Appearing from 4 September 2006 Onwards 1996 part v

546) Reply to Kanu-Defence Response to Urgent 06/09/06 19022-19027 Prosecution Motion for Relief in Respect of violations of the Trial Chamber’s Order of 26 April 2006 547) Brima and Kamara-Defence Response to Urgent 08/09/06 19028-19033 Prosecution Motion for Relief in Respect of Violations of the Trial Chamber’s Order of 26 April 2006 and Prosecution Violation of Rule 46(c) 548) Reply to Brima & Kamara – Defence 11/09/06 19034-19038 Response to Urgent Prosecution Motion for Relief in Respect of Violations of the Trial Chamber’s Order of 26 April 2006 549) Confĳidential Joint defence Disclosure of 11/09/06 19039-19062 Individual Witness Summaries for the First and second Accused 550) Order under Rule 16 to Continue Trial in the 12/09/06 19063-19064 Absence of a Judge 551) Decision on Joint Defence Application for 13/09/06 19065-19066 protective Measures for Defence witnesses Appearing from 4 September 2006 Onwards 552) Order to the Defence to Justify the Excessive 14/09/06 19067-19069 Number of Witnesses to be Called 553) Decision on Prosecution Motion for Relief in 14/09/06 19070-19072 Respect of violations of the Trial Chamber’s Decision of 9 May 2006 554) Confĳidential Joint Defence Disclosure of 14/09/06 19073-19075 Identifying Data of Fifth Set of Twenty-Five Witnesses 555) Brima & Kamara-Confĳidential Defence 19/09/06 19076-19083 Disclosure of Identifying Data of Individual Witnesses Pursuant to Orders of the Trial Chamber Dated September 14 2006 556) Public Joint Defence Submission as to the 20/09/06 19084-19091 Justifĳication of the number of Defence Witnesses to be called 557) Confĳidential Kanu Defence Disclosure of 20/09/06 19092-19093 Identifying Data of Individual Witnesses 558) Order Under Rule 16 To continue Trial In The 21/09/06 19094-19095 Absence Of A Judge 559) Confĳidential Brima Defence Individual Witness 25/09/06 19096-19099 Summaries list of documents filed in prosecutor v. brima, kamara, kanu 1997

560) Decision on Confĳidential Prosecution 28/09/06 19100-19109 Motion to Reopen the Prosecution Case to Present an Additional Witness 561) Confĳidential Kamara Defence Individual 29/09/06 19110-19119 Witness Summaries 562) Order Scheduling Judicial Recess 03/10/06 19120-19121 563) Joint Defence Notifĳication of Errata for 05/10/06 19122-19124 Military Expert Report by Major-General (Retired) W.A.J. Prins 564) Decision on Urgent Prosecution Motion for relief 05/10/06 19125-19129 in Respect of violations of the Trial Chamber’s Order of 26 April 2006 565) Confĳidential Kamara Defence Individual Witness 09/10/06 19130-19134 Summary for Witness DBK-126 566) Decision on Urgent Prosecution Motion for an 10/10/06 19135-19139 Order Restricting Contacts Between the Accused and Defence Witnesses and Requiring Disclosure of Such Contacts 567) Joint Defence Disclosure of Expert Report on 11/10/06 19140-19167 Child Soldiers by Mr Gbla 568) Joint Defence Disclosure of Confĳidential Hand 13/10/06 19168-19192 Written Notes of DSK 082 as an Annexure to the Military Expert Report 569) Motion for Leave to Call Evidence in Rebuttal 16/10/06 19193-19214 570) Corrigendum – Decision on Prosecution Motion 16/10/06 19215-19216 for Relief in Respect of Violations of the Trial Chamber’s Decision of 9 May 2006 571) Order for Expedited Filing 17/10/06 19217-19218 572) Notice of Acceptance of the Expert Report on 18/10/06 19219-19220 Child Soldiers By Mr Gbla 573) Confĳidential Motion To Vary Protective 18/10/06 19221-19225 Measures 574) Confĳidential Kanu Defence Response to 19/10/06 19226-19233 Prosecution Motion for Leave to Call Evidence in Rebuttal 575) Confĳidential Brima-Response to Prosecution 20/10/06 19234-19243 Motion for Leave to call Evidence in Rebuttal 576) Confĳidential Joint Defence Response to 20/10/06 19244-19246 Prosecution Motion to Vary Protective Measures 577) Confĳidential Kamara-Response to Prosecution 24/10/06 19247-19251 Motion for Leave to Call Evidence in Rebuttal 1998 part v

578) Confĳidential Prosecution Reply to Brima 25/10/2006 19252-19261 Response to Prosecution Motion for Leave to Call Evidence in Rebuttal 579) Confĳidential Prosecution Reply to Kanu 25/10/2006 19262-19273 Response to Prosecution Motion for Leave to Call Evidence in Rebuttal 580) Scheduling Order For a Status Conference 26/10/2006 19274-19275 581) Order For Filing of Final Trial Briefs and 30/10/2006 19276-19279 Presentation of Closing Arguments 582) Decision on Confĳidential Motion to 14/11/2006 19280-19306 Call Evidence in Rebuttal 583) Decision on Confĳidential Motion to Vary 15/11/06 19307-19310 Protective Measures 584) Application for Leave to Appeal Decision 17/11/06 19311-19319 on Confĳidential Motion to Call evidence in Rebuttal 585) Order For Expedited Filing 17/11/06 19320-19321 586) Kanu – Defence Response to Prosecution 21/11/06 19322-19327 Application For Leave to Appeal Decision on Confĳidential Motion to call Evidence in Rebuttal 587) Prosecution Reply to Kanu Response to 22/11/06 19328-19330 Prosecution Application for Leave to Appeal Decision on Confĳidential Motion to Call Evidence in Rebuttal 588) Decision on Prosecution Application for 23/11/06 19331-19334 Leave to Appeal Decision on Confĳidential Motion to Call Evidence in Rebuttal 589) Urgent Prosecution Motion For Relief To 27/11/06 19335-19337 File A Final Brief Not Exceeding 500 Pages 590) Brima Defence Response To Urgent 27/11/06 19338-19340 Prosecution Motion For Relief To File A Final Brief Not Exceeding 500 Pages 591) Kamara Defence Response to Urgent 28/11/06 19341-19343 Prosecution Motion for Relief to File a Final Brief not Exceeding 500 pages 592) Kanu-Defence Response to Urgent Prosecution 28/11/06 19344-19348 Motion for Relief to File a Final Brief not Exceeding 500 pages 593) Urgent Prosecution Reply to Defence Responses 28/11/06 19349-19351 to Prosecution Motion for Relief to File a Final Brief not Exceeding 500 Pages list of documents filed in prosecutor v. brima, kamara, kanu 1999

594) Decision on Urgent Prosecution Motion for 28/11/06 19352-19353 Relief to File a Final Brief not Exceeding 500 Pages 595) Confĳidential – Brima Final Trial Brief 01/12/06 19354-19523 596) Confĳidential Prosecution Final Trial Brief 01/12/06 19524-20043 597) Confĳidential Kamara Final Trial Brief 01/12/06 20044-20192 598) Confĳidential Kanu – Defence Trial Brief 01/12/06 20193-20384 599) Order Under Rule 16 To Continue Trial In The 06/12/2006 20385-20386 Absence of A Judge 600) Order To Re-File Brima And Kamara Final Trial 06/12/2006 20387-20389 Briefs 601) Public Prosecution Final Trial Brief 06/12/2006 20390-20910 602) Additional Prosecution Authorities For The 08/12/2006 20911-20970 Prosecution Final Trial Brief 603) Public -Kamara Final Trial Brief 11/12/2006 20971-21120 604) Public Version – Brima Defence Final Trial Brief 11/12/2006 21121-21289 605) Authorization Pursuant To Rule 4 13/12/2006 21290 -21291 606) Authorization Pursuant To Rule 4 13/12/2006 21292-21293 607) Kanu- Defence Trial Brief 09/01/2007 21294-21448 608) Public Prosecution List Of Authorities 25/01/2007 21449-21456 Referred To In Oral Closing Submissions 609) Order Scheduling Judicial Recess 09/02/2007 21457-21458 610) Authorisation Pursuant to Rule 4 30/03/2007 21459-21460 611) Scheduling Order for Delivery of Judgement 14/05/2007 21461-21462 612) Order Scheduling Judicial Recess 08/06/2007 21463-21464 613) Judgement 21/06/2007 21465-22096 614) Prosecution Submission Pursuant to Rule 100(A) 28/06/07 22097-22625 of the Rules of Procedure and Evidence 615) Kanu Defence Sentencing Brief Pursuant 05/07/07 22626-22764 To Rule 100(A) And Request For Non-Admission Of Prosecution Exhibits 616) Public Version Of Kanu Defence Sentencing 05/07/07 22765-22901 Brief Pursuant To Rule 100(A) And Request For Non-Admission Of Prosecution Exhibits 617) Public – Kamara Sentencing Brief pursuant to 05/07/07 22902-22922 Rule 100(A) of the Rules of Procedure and Evidence 618) Brima Defence Submissions Pursuant to Rule 05/07/07 22923-22945 100(A) of the Rules of Procedure and Evidence 619) Scheduling Order For Sentencing Hearing And 10/07/07 22946-22948 Judgement 2000 part v

620) Urgent Joint Defence Request For Extension of 13/07/07 22949-22962 Time Limit Pursuant To Rule 116 For Filing Of Notice of Appeal And Appeal Submissions 621) Prosecution List of Authorities to be Referred to 13/07/07 22963-22968 in Oral Sentencing Submissions on 16 July 2007 622) Prosecution’s Response To Urgent Joint Defence 18/07/07 22969-22978 Request For Extension Of Time-Limits Pursuant To Rule 116 For Filing Of Notice of Appeal And Appeal Submissions 623) Kanu-Reply to Prosecution Response to Urgent 19/07/07 22979-22983 Joint Defence Request for Extension of Time Limit Pursuant to Rule 116 for Filing of Notice of Appeal & Appeal Submissions 624) Sentencing Judgement 19/07/07 22984-23018 625) Principal Defender’s Decision Assigning Appeal 20/07/07 23019-23020 Counsel To Alex Tamba Brima 626) Principal Defender’s Decision Assigning Appeal 20/07/07 23021-23022 Counsel To Santigie Bobor Kanu 627) Principal Defender’s Decision Assigning Appeal 20/07/07 23023-23024 Counsel To Brima Bazzy Kamara 628) Corrigendum to Judgement & Revised Judgment 20/07/07 23025-23678 629) Decision On Request For Extension Of Time 25/07/07 23679-26383 Pursuant Rule 116 of the Rules of Procedure and Evidence Start of Appeal Folder New Page Numbers 630) Public Prosecution’s Notice of Appeal 02/08/07 001-013 631) Public Urgent Joint Defence & Prosecution 02/08/07 014-018 Motion for an Extension of Time for the Filing of Appeal Briefs 632) Kamara Defence Notice of Appeal 02/08/07 019-027 633) Public Prosecution Motion for Voluntary Recusal 02/08/07 028-033 or Disqualifĳication of Justice Robertson 634) Kanu’s Notice & Grounds of Appeal 02/08/07 034-041 635) Order Designating a Pre-Hearing Judge Pursuant 02/08/07 042-043 to Rule 109 of the Rules of Procedure & Evidence 636) Public Brima Defence Notice of Appeal 02/08/07 044-049 637) Urgent Prosecution Motion for an Extension of 02/08/07 050-054 the page limit for it’s Appeal Brief 638) Corrigendum to Kamara Defence notice 03/08/07 055-057 of appeal list of documents filed in prosecutor v. brima, kamara, kanu 2001

639) Corrigendum to Kanu’s Notice & Grounds of 03/08/07 058-059 Appeal 640) Decision on Urgent Joint Defence & Prosecution 10/08/07 060-062 Motion for an Extension of Time for the Filing of Appeal Briefs (FILED IN RECESS) 641) Order Extending Time for Filing a Response to 16/08/07 063-064 Prosecution Motion for Voluntary Recusal or Disqualifĳication of Justice Robertson (FILED IN RECESS) 642) Brima-Kamara joint response to urgent 20/08/07 065-067 Prosecution motion for an extension of the page limit for its Appeal Brief 643) Urgent Prosecution Reply to Brima-Kamara 22/08/07 068-071 Response to Prosecution Motion for An Extension of the Page Limit for its Appeal Brief 644) Brima-Kamara joint response to Prosecution 24/08/07 072-075 Motion for Voluntary Recusal or Disqualifĳication of Justice Robertson 645) Decision on Urgent Prosecution Motion for an 24/08/07 076-079 Extension of the Page Limit for Its Appeal Brief 646) Order Extending time for fĳiling a response to 28/08/07 080-081 ‘Prosecution Motion for Voluntary recusal or Disqualifĳication of Justice Robertson’ 647) Kanu’s Submissions to Grounds of Appeal 13/09/07 082-176 648) Appeal Brief Of The Prosecution 13/09/07 177-1087 649) Kamara Appeal Brief 13/09/07 1088-1167 650) Brima Appeal Brief 13/09/07 1168-1227 651) Joint Defence And Prosecution Motion For An 21/09/07 1228-1229 Extension Of Time For The Filing Of Response Briefs 652) Copies of Additional Authorities For 21/09/07 1230-1235 Prosecution Appeal Brief 653) Public Corrigendum To The Prosecution Appeal 24/09/07 1236-1239 Brief Filed On 13 September 2007 654) Decision On Urgent Joint Defence And 26/09/07 1240-1241 Prosecution Motion For An Extension Of Time For The Filing Of Response Briefs 655) Order Accepting the Filing of Authorities by the 03/10/07 1242-1243 Prosecution 656) Decision on Prosecution Motion for 03/10/07 1244-1245 Voluntary Recusal or Disqualifĳication of Justice Robertson 2002 part v

657) Kamara Response to Prosecution Appeal Brief 04/10/07 1246-1302 658) Respondent’s Submissions-Kanu Defence 04/10/07 1303-1386 659) Response Brief of the Prosecution 05/10/07 1387-1732 660) Brima Response to Prosecution’s Appeal Brief 05/10/07 1733-1771 661) Submissions in reply – Kanu Defence 09/10/07 1772-1786 662) Reply Brief of the Prosecution 10/10/07 1787-1855 663) Order Scheduling Judicial Recess 17/10/07 1856-1857 664) Scheduling Order 30/10/07 1858-1859 665) Order Designating the Record on Appeal 01/11/07 1860-1861 666) Certifĳicate of The Registrar of the Record on 01/11/07 1862-1863 Appeal 667) Corrigendum to the Order Designating 02/11/07 1864-1865 the Record of Appeal 668) Certifĳicate of the Registrar of the Record on 02/11/07 1866-1867 Appeal in Response to the Corrigendum to the Order Designating the Record on Appeal 669) Scheduling Order 07/11/07 1868-1870 670) Prosecution Motion For Reclassifĳication of 30/11/07 1871-1872 Filing 671) Authorization Pursuant To Rule 4 06/11/07 1873-1874 672) Decision On The Prosecution Motion For 11/12/07 1875-1877 Reclassifĳication Of Filing 673) Order Scheduling Judicial Recess 28/01/2008 1878-1879 674) Scheduling Order for Delivery of Appeal 06/02/2008 1880-1882 Judgement 675) Judgment 03/03/2008 1883-1999 676) Corrigendum To Judgement Dated 22 February 17/10/2008 2000-2001 2008 Start of Enforcement Sentence New Page Numbers 677) Confĳidential: Order Designating State in which 12/08/09 2002-2004 Santigie Borbor Kanu is to Serve his Sentence 678) Confĳidential: Order Designating State in which 12/08/09 2005-2007 Brima Bazzy Kamara is to Serve his Sentence 679) Confĳidential: Order Designating State in which 12/08/09 2008-2010 Alex Tamba Brima is to Serve his Sentence 680) Confĳidential- Corrigendum 13/08/09 2011-2015 681) Confĳidential - Corrigendum 13/08/09 2016-2020 682) Public with Confĳidential Annexes Urgent 17/12/2010 2021-2042 Prosecution Motion for an Investigation into Contempt of the Special Court for Sierra Leone list of documents filed in prosecutor v. brima, kamara, kanu 2003

683) Decision on public with confĳidential Annexes 10/01/2011 2043-2047 urgent Prosecution motion for an investigation into contempt of the Special Court for Sierra Leone 684) Public with confĳidential Annexes Prosecution 31/01/2011 2048-2069 motion for an investigation into contempt of the Special Court for Sierra Leone 685) Corrigendum to public with confĳidential 1/02/2011 2070-2072 Annexes Prosecution motion for an investigation into contempt of the Special Court for Sierra 686) Application for extension of time to fĳile 3/02/2011 2073-2074 response to Prosecution contempt motion into contempt of the Special Court for Sierra Leone 687) Order for extension of time 10/02/2011 2075-2076 688) Public with confĳidential Annex submission 10/02/2011 2077-2085 of the Registrar pursuant to Rule 33(B) regarding the Prosecution motion for an investigation into contempt of the Special Court for Sierra Leone 689) Confĳidential with Annexes I and II Defence 2/21/2011 2086-2114 response to urgent Prosecution motion for an investigation into contempt of the Special Court for Sierra Leone 690) Confĳidential Prosecution reply to confĳidential 2/28/ 2011 2115-2130 with Annexes I and II Defence response to urgent Prosecution motion for an investigation into contempt of the Special Court for Sierra Leone 691) Decision on public with confĳidential Annexes 3/18/2011 2131-2146 Prosecution motion for an investigation into contempt of the Special Court for Sierra Leone

PRINCIPAL OFFICIALS OF THE SPECIAL COURT FOR SIERRA LEONE

Presidents of the Special Court for Sierra Leone

3 December 2002-16 March 2004: Justice Geofffrey Robertson (United Kingdom) 16 March 2004-27 May 2004: Justice Renate Winter (Acting President) (Austria) 27 May 2004-26 May 2005: Justice Emmanuel Ayoola (Nigeria) 26 May 2005-26 May 2006: Justice A. Raja N. Fernando (Sri Lanka) 26 May 2006-17 May 2007: Justice George G. King (Sierra Leone) 17 May 2007-30 May 2008: Justice George G. King (Sierra Leone) 30 May 2008-25 May 2009: Justice Renate Winter (Austria) 25 May 2009-2 November 2009: Justice Renate Winter (Austria) 2 November 2009-1 June 2010: Justice Jon Kamanda (Acting President) (Sierra Leone) 1 June 2010-present: Justice Jon Kamanda (Sierra Leone)

Vice-Presidents, Special Court for Sierra Leone

7 March 2003-27 May 2004: Justice George G. King (Sierra Leone) 27 May 2004-26 May 2005: Justice A. Raja N. Fernando (Sri Lanka) 26 May 2005-27 September 2005: Justice George G. King (Sierra Leone) 27 September 2005-27 January 2006: Justice Geofffrey Robertson (United Kingdom) 27 January 2006-26 May 2006: Justice Renate Winter (Austria) 26 May 2006-17 May 2007: Justice Emmanuel Ayoola (Nigeria) 17 May 2007-30 May 2008: Justice Emmanuel Ayoola (Nigeria) 30 May 2008-2 November 2009: Justice Jon Kamanda (Sierra Leone) 2 November 2009-1 June 2010: Justice Emmanuel Ayoola (Nigeria) 1 June 2010-present: Justice Emmanuel Ayoola (Nigeria) Original Justices sworn in, December 2, 2002: Trial Chamber I: Judge Pierre Boutet (Canada) Judge Benjamin M. Itoe (Cameroon) Judge R.J. Bankole Thompson (Sierra Leone) (the terms of Trial Chamber I expired in April 2009) 2006 part v

Appeals Chamber Judge Emmanuel O. Ayoola (Nigeria) Judge Hassan B. Jallow (Gambia) (resigned September 2003) Judge George G. King (Sierra Leone) Judge Geofffrey Robertson (United Kingdom) (resigned August 2007) Judge Renate Winter (Austria) Second Trial Chamber, sworn in 2005: Judge Teresa Doherty (Northern Ireland) Judge Julia Sebutinde (Uganda) Judge Richard Lussick (Samoa) Additional Justices sworn in: 10 March 2004: Justice A. Raja N. Fernando (Sri Lanka) (Appeals) (deceased 22 November 2008) 9 May 2007: Justice El Hadji Malick Sow (Senegal) (Alternate) (Trial) 7 November 2007: Justice Jon Kamanda (Sierra Leone) (Appeals) 4 May 2009: Justice Shireen Avis Fisher (United States) (Appeals) Presiding Judge, Trial Chamber I: 2 December 2002-31 May 2004: Judge Bankole Thompson (Sierra Leone) 2 June 2004-27 May 2005: Judge Benjamin M. Itoe (Cameroon) 27 May 2005-19 June 2006: Justice Pierre G. Boutet (Canada) 19 June 2006-5 July 2007: Justice Bankole Thompson (Sierra Leone) 5 July 2007-4 July 2008: Justice Benjamin Itoe (Cameroon) 4 July 2008-April 2009: Justice Pierre G. Boutet (Canada) Presiding Judge, Trial Chamber II: 18 January 2005- 17 January 2006: Justice Teresa Doherty (Northern Ireland) 18 January 2006-17 January 2007: Justice Richard Lussick (Samoa) 18 January 2007-17 January 2008: Justice Julia Sebutinde (Uganda) 17 January 2009-18 January 2010: Justice Teresa Doherty (Northern Ireland) 18 January 2009-17 January 2010: Justice Richard Lussick (Samoa) 18 January 2010-17 January 2011: Justice Julia Sebutinde (Uganda) 18 January 2011-present: Justice Teresa Doherty (North Ireland) Prosecutor: 17 April 2002-5 May 2005: David M. Crane (United States) 5 May 2005-June 2006: Desmond de Silva, QC (United Kingdom) June 2006-7 December 2006: Christopher Staker (Acting Prosecutor) (Australia) 7 December 2006: Stephen Rapp (United States) 8 September 2009-22 February 2010: Joseph F. Kamara (Acting Prosecutor) (Sierra Leone) February 22, 2010-present: Brenda Hollis (United States) principal officials of the special court for sierra leone 2007

Registrar 10 June 2002-30 September 2005: Robin Vincent (United Kingdom) 3 October 2005-24 February 2006: Lovemore G. Munlo (Malawi) (Interim Registrar) 24 February 2006-19 March 2007: Lovemore G. Munlo (Malawi) 19 March 2007-20 July 2007: Herman von Hebel (Netherlands) (Interim Registrar) 20 July 2007-1 June 2009: Herman von Hebel (Netherlands) 1 June 2009-22 February 2010: Binta Mansaray (Acting Registrar) 22 February 2010-present: Binta Mansaray (Sierra Leone) Deputy Prosecutor 13 November 2002-15 July 2005: Desmond de Silva, QC (United Kingdom) 15 July 2005: Christopher Staker (Australia) 6 August 2008: Joseph Kamara (Sierra Leone) Deputy Registrar July 2006: Herman von Hebel (Netherlands) 20 July 2007: Binta Mansaray (Sierra Leone) 24 May 2010: Fidelma Donlon (Ireland) Principal Defender March 2004-May 2005: Simone Monasebian (United States) 6 June 2005-November 2008: Vincent O. Nmehielle (Nigeria) 2008 December: Elizabeth Nahamya (Uganda) 2008 December-2 November 2009: Claire Carlton-Hanciles (Acting) (Sierra Leone) 2 November 2009-present: Claire Carlton-Hanciles (Sierra Leone)

SELECTED BIBLIOGRAPHY*

Documents and International Instruments Relating to the SCSL

SCSL’s Agreement, Statute, Rules, Regulations and Practice Directions

Agreement between the United Nations and the Government of Sierra Leone on the Establishment of the Special Court for Sierra Leone, signed on 16 January 2002, available at http://www.sc-sl.org/ LinkClick.aspx?fĳileticket=CLk1rMQtCHg%3d&tabid=176. Statute of the Special Court, annexed to the Agreement 16 January 2002, available at http://www .sc-sl.org/LinkClick.aspx?fĳileticket=uClnd1MJeEw%3d&tabid=176. Headquarters Agreement Between the Republic of Sierra Leone and the Special Court for Sierra Leone, Signed on 21 October 2003, available at http://www.sc-sl.org/LinkClick.aspx?fĳileticket=z8N hRqbTE3g%3d&tabid=176. Co-operation Agreement Between the International Police Organization – Interpol and the Special Court for Sierra Leone, 3 November 2003, available at http://www.sc-sl.org/LinkClick.aspx?fĳiletick et=MZnuv9tSHks=&tabid=176. Rules of Procedure and Evidence, 16 January 2002, as amended 7 March 2003, 1 August 2003, 30 October 2003, 14 March 2004, 29 May 2004, 14 May 2005, 13 May 2006, 24 November 2006, 14 May 2007, 19 November 2007, 27 May 2008, 28 May 2010, available at http://www.sc-sl.org/LinkClick .aspx?fĳileticket=yNjqn5TIYKs%3d&tabid=176. Rules Governing the Detention of Persons Awaiting Trial or Appeal before the Special Court for Sierra Leone or otherwise Detained under the Authority of the Special Court for Sierra Leone (Rules of Detention), Adopted on 7 March 2003, as amended on 4 May 2004, as amended on 14 May 2005, available at http://www.sc-sl.org/LinkClick.aspx?fĳileticket=sSNS1UL5T3w%3d&ta bid=176. Practice Direction on Disclosure by the Prosecutor Pursuant to Rule 66 of the Rules of Procedure and Evidence of the Special Court for Sierra Leone, Adopted 23 February 2004, available at http:// www.sc-sl.org/LinkClick.aspx?fĳileticket=JK4E2A7qLq8%3d&tabid=176. Practice Direction on Filing Documents before the Special Court for Sierra Leone, Adopted on 27 February 2003, Amended on 1 June 2004, Amended 10 June 2005, Amended 16 January 2008 available at http://www.sc-sl.org/LinkClick.aspx?fĳileticket=PV2maeNbMas%3d&tabid=176. Practice Direction on Filing Documents under Rule 72 of the Rules of Procedure and Evidence before the Appeals Chamber of the Special Court for Sierra Leone, Adopted on 22 September 2003, available at http://www.sc-sl.org/LinkClick.aspx?fĳileticket=%2fUglYymDncw%3d&tabid=176. Practice Direction on the Procedure Following a Request by a State, the Truth and Reconciliation Commission, or other Legitimate Authority to Take a Statement from a Person in the Custody of the Special Court for Sierra Leone, Adopted on 9 September 2003, Amended on 4 October 2003, available at http://www.sc-sl.org/LinkClick.aspx?fĳileticket=8km93ZzghVU%3d&tabid=176.

* Initial working bibliography is intended to assist researchers interested in locating the main publications relating to the Special Court for Sierra Leone. 2010 selected bibliography

Directive on the Assignment of Counsel, Adopted on 1 October 2003, available at http://www.sc-sl .org/LinkClick.aspx?fĳileticket=1FClI7mri4k%3d&tabid=176. Code of Ethics for Interpreters and Translators Employed by the Special Court for Sierra Leone, Adopted on 25 May 2004, available at http://www.sc-sl.org/LinkClick.aspx?fĳileticket=1nVwtfĳjRDb 8%3d&tabid=176. Practice Direction for Certain Appeals before the Special Court, Adopted 30th September 2004, available at http://www.sc-sl.org/LinkClick.aspx?fĳileticket=Hl%2bjMYUm81Y%3d&tabid=176. Practice Direction on fĳiling Amicus Curiae applications pursuant to Rule 74 of the Rules of Procedure and Evidence of the Special Court for Sierra Leone, Adopted 20 October 2004, available at http://www.sc-sl.org/LinkClick.aspx?fĳileticket=at%2bv8P37mTY%3d&tabid=176. Practice Direction on the Internal Functioning of Trial Chamber I, 26 October 2005, available at http://www.sc-sl.org/LinkClick.aspx?fĳileticket=zwVzGZ34Gy4%3d&tabid=176. Practice Direction on the Internal Functioning of the Trial Chamber (Trial Chamber II), 26 October 2005, available at http://www.sc-sl.org/LinkClick.aspx?fĳileticket=i37NPODsR%2bk%3d&ta bid=176.

National Statutes and Implementation

Constitution of Sierra Leone, 1991. Special Court Agreement (2002) Ratifĳication Act. Special Court Agreement (2002) (Ratifĳication) (Amendment) Act, 2002. Truth and Reconciliation Act, 2000. Malicious Damage Act, 1861. Prevention of Cruelty to Children, 1926. Criminal Procedure Act, 1965. The Lomé Peace Agreement (Ratifĳication) Act, 1999, 22 July 1999. Truth and Reconciliation Commission Act 2000.

Cease Fire Agreements

Abuja Ceasefĳire Agreement between the Government of Sierra Leone and the Revolutionary United Front (“Abuja Ceasefĳire Agreement”), 10 November 2000. Peace Agreement between the Government of Sierra Leone and the Revolutionary United Front of Sierra Leone (“Lomé Peace Agreement”), 7 July 1999. Agreement on Ceasefĳire in Sierra Leone (“Ceasefĳire Agreement”), signed in Lomé (Togo), 18 May 1999. ECOWAS Six-Month Peace Plan for Sierra Leone (“Conakry Accord”), 23 October 1997. Peace Agreement between the Government of the Republic of Sierra Leone and the Revolutionary United Front of Sierra Leone (“Abidjan Accord”), 30 November 1996.

United Nation Documents and the Establishment of the SCSL

Letter of President Ahmed Tejan Kabbah to Secretary-General Kofĳi Annan, (12 June 2000). selected bibliography 2011

UN Documents on Establishment

A/RES/55/284 Resolution Adopted by the General Assembly, Special Court for Sierra Leone. 26 April 2004 S/RES/1315 Resolution requesting Secretary-General to negotiate Agreement with Sierra 14 Aug. 2000 Leone to create an independent court. S/2000/1234 Letter to the Secretary-General from the President of the Security Council. 22 Dec. 2000 S/2001/40 Letter to the President of the Security Council from the Secreatary-General. 12 Jan. 2001 S/2001/95 Letter to the Secretary-General from the President of the Security Council. 31 Jan. 2001 S/2001/693 Letter to the President of the Security Council from the Secretary General. 12 July 2001 S/2001/722 Letter to the Secretary-General from the President of the Security Council. 23 July 2001 Referring to plans to move forward with establishment of a Special Court. S/2001/1320 Letter to the President of the Security Council from the Secretary-General. 28 Dec. 2001 Regarding contributions to commence the establishment and operation of the Special Court. S/2002/246 Report of the Planning Mission on the Establishment of the Special Court for Sierra 8 March 2002 Leone, (Appendix 1 – Members of Planning Mission; Appendix 2 – Agreement between UN and SL). S/2000/915 Report of the Secretary General on the Establishment of a Special Court for Sierra 4 Oct. 2000 Leone.

UN Documents on Sierra Leone Resolutions of the Security Council

S/RES/1620, By which the Council, among other things, established the United Nations 31 August 2005 Integrated Offfĳice in Sierra Leone (UNIOSIL), for an initial period of 12 months, beginning on 1 January 2006, to further address root causes of conflict. S/RES/1610, By which the Council, among other things, extended the mandate of 30 June 2005 UNAMSIL for a fĳinal six months, until the end of 2005, noting with approval the Secretary-General’s recommendation that the drawdown should begin in mid-August and be completed by 31 December. S/RES/1562, By which the Council, among other things, welcomed further progress 17 September 2004 towards the drawdown of UNAMSIL, decided to extend the Mission’s mandate for nine months until 30 June 2005 and defĳined the nature of the tasks for the Mission’s residual presence for an initial six-month period from 1 January 2005. 2012 selected bibliography

S/RES/1537, By which the Council, among other things, extended UNAMSIL’s mandate 30 March 2004 until 30 September 2004. S/RES/1508, By which the Council, among other things, extended UNAMSIL’s mandate 19 September 2003 until 31 March 2004. S/RES/1492 (2003), Regarding the drawdown of UNAMSIL. 18 July 2003 S/RES/1470 (2003), By which the Council, among other things, extended UNAMSIL’s mandate 28 March 2003 until 30 September 2003. S/RES/1446 (2002), Regarding the trade in diamonds. 4 December 2002 S/RES/1436 (2002), By which the Council, among other things, extended UNAMSIL’s mandate 24 September 2002 until 30 March 2003. S/RES/1400 (2002, By which the Council, among other things, extended UNAMSIL’s mandate 28 March 2002) until 30 September 2002. S/RES/1389 (2002), Regarding election-related tasks. 16 January 2002 S/RES/1385 (2001), Regarding the trade in diamonds. 19 December 2001 S/RES/1370 (2001), By which the Council, among other things, extended UNAMSIL’s mandate 18 September 2001 for six months beginning on 30 September 2001. S/RES/1346 (2001), By which the Council extended UNAMSIL’s mandate for six months begin- 30 March 2001 ning on 30 March 2001 and increased the strength of the military component to 17,500. S/RES/1334 (2000), By which the Council extended UNAMSIL’s mandate until 31 March 2001. 22 December 2000 S/RES/1321 (2000), By which the Council extended UNAMSIL’s mandate until 31 December 20 September 2000 2000. S/RES/1317 (2000), By which the Council extended UNAMSIL’s mandate until 20 September 5 September 2000 2000. S/RES/1315 (2000), By which the Council requested the Secretary-General to negotiate an agree- 14 August 2000 ment with the Government of Sierra Leone to create an independent special court. S/RES/1313 (2000), By which the Council extended UNAMSIL until 8 September 2000, expressed 4 August 2000 its intention to strengthen UNAMSIL’s mandate, and requested the Secretary-General to make recommendations on the restructuring and strengthening of UNAMSIL S/RES/1306 (2000), Relating to the prohibition of the import of rough diamonds from Sierra 5 July 2000 Leone. S/RES/1299 (2000), By which the Council authorized an increase in the strength of UNAMSIL. 19 May 2000 S/RES/1289 (2000), By which the Council authorized further expansion of UNAMSIL. 7 February 2000 selected bibliography 2013

S/RES/1270 (1999), By which the Council established the United Nations Mission in Sierra 22 October 1999 Leone (UNAMSIL). S/RES/1260 (1999), By which the Council authorized the expansion of the United Nations 20 August 1999 Observer Mission in Sierra Leone (UNOMSIL). S/RES/1245 (1999), By which the Council decided to extend the mandate of UNOMSIL and wel- 11 June 1999 comed the holding of talks in Lomé. S/RES/1231 (1999), By which the Council extended the mandate of UNOMSIL and noted the 11 March 1998 Secretary-General’s intention to make recommendations on UNOMSIL’s expansion. S/RES/1220 (1999), By which the Council extended the mandate of UNOMSIL and welcomed 12 January 1999 the intention of the Secretary-General to re-deploy stafff, subject to strict attention to the security situation. S/RES/1181 (1998), By which the Council established the United Nations Observer Mission in 13 July 1998 Sierra Leone (UNOMSIL). S/RES/1171 (1998), By which the Council decided measures to prohibit the sale and supply of 5 June 1998 arms and related material to non-governmental forces. S/RES/1162 (1998), By which the Council authorized the deployment of United Nations military 17 April 1998 liaison and security advisory personnel. S/RES/1156 (1998), By which the Council welcomed the return of the democratically elected 16 March 1998 President and decided to terminate prohibitions on the sale or supply of petroleum. S/RES/1132 (1997), By which the Council imposed sanctions against the military junta and 8 October 1997 prevented the sale of petroleum and arms.

Reports of the Secretary General

2005 S/2005/777, Twenty-seventh report of the Secretary-General UNAMSIL. 12 December 2005

S/2005/596, Twenty-sixth report of the Secretary-General on UNAMSIL. 20 September 2005

S/2005/273/Add.2, Addendum to the twenty-fĳifth report of the Secretary-General on UNAMISL. 28 July 2005

S/2005/273/Add.1, Addendum to the twenty-fĳifth report of the Secretary-General on UNAMSIL. 21 June 2005

S/2005/273, Twenty-fĳifth report of the Secretary-General on UNAMSIL. 26 April 2005

S/2005/135, Report of the Secretary-General on inter-mission cooperation and possible 2 March 2005 cross-border operations between UNAMSIL, the UN mission in Liberia, and the UN mission in Cote d’Ivoire. 2014 selected bibliography

2004 S/2004/965, Twenty-fourth report of the Secretary General on UNAMSIL. 10 December 2004

S/2004/724, Twenty-third report of the Secretary General on UNAMSIL. 9 September 2004

S/2004/536, Twenty-second report of the Secretary General on UNAMSIL. 6 July 2004

S/2004/228, Twenty-fĳirst report of the Secretary General on UNAMSIL. 19 March 2004

2003 S/2003/1201, Twentieth report of the Secretary-General on UNAMSIL. 23 December 2003

S/2003/863, Nineteenth report of the Secretary-General on UNAMSIL. 5 September 2003

S/2003/663, Eighteenth report of the Secretary-General on UNAMSIL. 23 June 2003

S/2003/321, Seventeenth report of the Secretary-General on UNAMSIL. 17 March 2003

2002 S/2002/1417, Sixteenth report of the Secretary-General of UNAMSIL. 24 December 2002

S/2002/987, Fifteenth report of the Secretary-General of UNAMSIL. 5 September 2002

S/2002/679, Fourteenth report of the Secretary-General of UNAMSIL. 19 June 2002

S/2002/267, Thirteenth report of the Secretary-General of UNAMSIL. 14 March 2002

2001 S/2001/1195, Twelfth report of the Secretary-General of UNAMSIL. 13 December 2001

S/2001/857/Add.1, Addendum, Eleventh report. (Annex: Contributions as at 5 Sept. 2001). 10 September 2001

S/2001/857, Eleventh report of the Secretary-General on UNAMSIL. 7 September 2001

S/2001/627, Tenth report of the Secretary-General on UNAMSIL. 25 June 2001

S/2001/513, Report of the Secretary-General on the issue of refugees and internally 23 May 2001 displaced persons. selected bibliography 2015

S/2001/228, Ninth report of the Secretary-General on UNAMSIL. 14 March 2001

2000 S/2000/1199, Eighth report of the Secretary-General on UNAMSIL. 15 December 2000

S/2000/1055, Seventh report of the Secretary-General on UNAMSIL. 31 October 2000

S/2000/915, Report of the Secretary-General on the establishment of Special Court for 4 October 2000 Sierra Leone.

S/2000/832/Add.1, Addendum to the sixth report of the Secretary-General. 12 September 2000

S/2000/832, Sixth report of the Secretary-General on UNAMSIL. 24 August 2000

S/2000/751, Fifth report of the Secretary-General on UNAMSIL. 31 July 2000

S/2000/455, Fourth report of the Secretary-General on UNAMSIL. 19 May 2000

S/2000/186, Third report of the Secretary-General on UNAMSIL. 7 March 2000

S/2000/13Add.1, Second report of the Secretary-General on UNAMSIL, including a recom- 11 January 2000 mendation for an expanded mission.

1999 S/1999/1223, First report of the Secretary-General on UNAMSIL. 6 December 1999

S/1999/836/Add.1, Addendum, Seventh report of the Secretary-General on UNOMSIL. 11 August 1999

S/1999/836, Seventh report of the Secretary-General on UNOMSIL. 30 July 1999

S/1999/645, Sixth report of the Secretary-General on UNOMSIL. 4 June 1999

S/1999/237, Fifth report of the Secretary-General on UNAMSIL. 4 March 1999

S/1999/20, Special report of the Secretary-General. 7 January 1999

1998 S/1998/1176, Third progress report of the Secretary-General on UNOMSIL. 16 December 1998 2016 selected bibliography

S/1998/960, Second progress report of the Secretary-General on UNOMSIL. 16 October 1998

S/1998/750, First progress report of the Secretary-General on UNOMSIL. 12 August 1998

S/1998/486/Add.1, Addendum, fĳifth report of the Secretary-General on the situation in Sierra 1 July 1998 Leone, with estimated cost of establishing UNOMSIL.

S/1998/486, Fifth Report of the Secretary-General on the situation in Sierra Leone. 9 June 1998

S/1998/112/Add.1, Report of the Secretary-General pursuant to paragraph 13 of Security Council 31 March 1998 Resolution 1132 (1997).

S/1998/249, Fourth report of the Secretary-General. 18 March 1998

S/1998/112, Report of the Secretary-General pursuant to paragraph 13 of Security Council 10 February 1998 Resolution 1132 (1997).

S/1998/103, Third report of the Secretary-General. 5 February 1998

1997 S/1997/958, Second report of the Secretary General. 5 December 1997

S/1997/811, Report of the Secretary-General pursuant to paragraph 13 of Security Council 21 October 1997 Resolution 1132 (1997).

S/1997/80/Add.1, Addendum, report of the Secretary-General. 31 January 1997

S/1997/80, Report of the Secretary-General regarding UN assistance in the implementa- 26 January 1997 tion of the Abidjan Peace Agreement of 30 Nov 1996.

1995 S/1995/975, Covering the period since the good offfĳices of the Secretary-General were 21 November 1995 formally requested by the Government of Sierra Leone in November 1994.

Completion Strategy

A/59/816-S/2005/350 27 May 2005 Completion Strategy /1999/645, 4 June 1999 /1999/645, 4 June 1999 selected bibliography 2017

SCSL Publications

Annual Reports

First Annual Report of the President of the Special Court for Sierra Leone (2 December 2002 – 1 December 2003). Second Annual Report of the President of the Special Court for Sierra Leone (1 January 2004 – 17 January 2005). Third Annual Report of the President of the Special Court for Sierra Leone (January 2005 – January 2006). Fourth Annual Report of the President of the Special Court for Sierra Leone (January 2006 – May 2007). Fifth Annual Report of the President of the Special Court for Sierra Leone (June 2007 – May 2008). Sixth Annual Report of the President of the Special Court for Sierra Leone (June 2008 – May 2009). Seventh Annual Report of the President of the Special Court (June 2009 – May 2010).