Prosecutor v. Brima, Kamara, and Kanu: First Judgment from the Appeals Chamber of the Special Court for Sierra Leone

I. Introduction

On February 22, 2008,[1] the Appeals Chamber of the Special Court for Sierra Leone (SCSL) issued its final judgment in Prosecutor v. Alex Tamba Brima, Brima Bazzy Kamara and Santigie Borbor Kanu (Appeals Judgment). The Appeals Judgment was the first judgment of the Appeals Chamber since the United Nations (UN) and Sierra Leone established the SCSL in January 2002. [2]

In this case, the Appeals Chamber unanimously upheld the Trial Chamber's conviction of the three former leaders of the Armed Forces Revolutionary Council (AFRC) for crimes against humanity, war crimes, and other serious violations of international humanitarian law. The Appeals Chamber also unanimously dismissed the defendants' grounds of appeal and affirmed the Trial Chamber's sentences for Brima, Kamara and Kanu.

The Prosecutor's appeals were more successful. The Appeals Chamber allowed three Prosecution grounds of appeal respecting joint criminal enterprise, forced marriage, and cumulative convictions. Observing that the Trial Chamber had convicted and sentenced the defendants to long prison terms, the Appeals Chamber declined to enter additional convictions because of the successful Prosecution appeals or to alter the Trial Chamber's sentences.

This Insight summarizes the Appeals Judgment and highlights important legal issues the judgment raises.

II. Background

A. The Conflict in Sierra Leone and the Armed Forces Revolutionary Council-Revolutionary United Front Regime

The Appeals Judgment started with an overview of the conflict in Sierra Leone, tracing the war to a March 1991 attack by the Revolutionary United Front (RUF). The RUF aimed to overthrow the one-party government of Joseph Saidu Momoh, which was, in 1996, replaced by the elected government led by Ahmad Tejan Kabbah. The RUF controlled parts of the country until March 1995, when government forces routed the RUF.[3]

On May 25, 1994, soldiers from the Sierra Leone Army (SLA) seized power in a coup d'etat and invited Major Johnny Paul Koroma to become Chairman of the AFRC. He agreed to share power with the RUF. The AFRC-RUF alliance established a military government, which tried but failed to recapture territory from the Civil Defence Forces, a government-sponsored militia loyal to the Kabbah Government, in eastern and southern Sierra Leone.[4] Loyal SLA forces and ECOMOG, a peacekeeping force of the Economic Community of West African States (ECOWAS), dislodged the AFRC-RUF alliance from power in March 1998 and reinstated the Kabbah-led government. A peace agreement was brokered, and the conflict formally ended in 2002.[5]

B. The Accused and the Charges in the Consolidated Indictment

The defendants - Brima, Kamara and Kanu - spearheaded the AFRC coup in 1994. In December 1998, Brima took over leadership of the AFRC. Kamara became deputy commander, and Kanu was made chief of staff. The three ran the key government ministries in Sierra Leone.[6]

The SCSL Prosecutor individually indicted the defendants from March to May 2003[7] and subsequently consolidated and amended the indictments.[8] The final consolidated, amended indictment[9] charged the defendants with seven counts for crimes against humanity[10] and six counts for war crimes.[11] The indictment also included one count for other serious violations of international humanitarian law, which included the crime of conscripting or enlisting children under the age of 15 years into armed forces and using them in hostilities. This charge marked the first time an international criminal tribunal has invoked the offence of conscripting child soldiers.

C. Trial, Verdict, and Sentence

The trial started in March 2005 and concluded in December 2006. On June 20, 2007, Trial Chamber II delivered its judgment.[12] All three defendants were convicted for crimes against humanity (four counts), war crimes (six counts) and other serious violations of international humanitarian law (one count). Trial Chamber II issued its Sentencing Judgment in July 2007.[13]

The Trial Chamber found each defendant personally responsible[14] and as commanders.[15] However, the Trial Chamber did not enter convictions for Count 7 (sexual slavery or any other form of sexual violence) because it found a violation of the rule against duplicity. The Trial Chamber also dismissed Count 8, in which the Prosecutor alleged forced marriage was a customary international law crime within "Other inhumane acts," because the count did not establish any offence distinct from sexual slavery. Brima and Kamara were acquitted of Count 11, which charged "Other inhumane acts" as a crime against humanity.[16] Significantly for other SCSL trials, the Trial Chamber rejected as fatally defective the manner in which the Prosecution pleaded Joint Criminal Enterprise (JCE) between the AFRC and the RUF. Brima and Kanu were each sentenced to 50-years imprisonment, while Kamara received 45 years.[17]

III. The Parties' Appeals and the Appeals Chamber's Rulings: Selected Issues

This section summarizes the Appeals Chamber's rulings on some of the more important issues appealed by the Prosecutor and the defendants.[18]

A. Joint Criminal Enterprise

On the Prosecutor's appeal regarding JCE, the Appeals Chamber reversed the Trial Chamber. JCE liability has proven to be a magic bullet for prosecutors since the seminal case of Prosecutor v. Tadic before the International Criminal Tribunal for the Former Yugoslavia.[19]

According to the Appeals Chamber, the actus reus of JCE liability requires (1) a plurality of persons, (2) the existence of a common plan, design, or purpose amounting to the commission of a crime prohibited in the SCSL Statute, and (3) participation of the accused in the perpetration of one of the prohibited crimes.[20]

The Trial Chamber held that the Prosecutor failed to fulfill the second element of this three-prong test. The Trial Chamber ruled that the objective of taking "any actions necessary to gain and exercise political power and control" over Sierra Leone as the JCE common purpose or design was not a crime under international law.[21]

In addressing this issue, the Appeals Chamber engaged in a cursory review of the rich JCE jurisprudence of international tribunals. It found the jurisprudence clear that the criminal purpose underpinning the JCE can derive from not only its objective, but also the means used to achieve that objective. Together, the objective and the means employed constitute the common design, plan, or purpose. [22]

The Appeals Chamber then referred to Article 25(3) of the Rome Statute of the International Criminal Court (ICC), which does not require the common purpose amount to a crime within the ICC's jurisdiction. Rather, the Rome Statute requires only that the criminal purpose involve the commission of a crime within the ICC's jurisdiction.[23]

The Appeals Chamber concluded that the Prosecutor properly pleaded JCE in the indictment because the acts contemplated towards the objective of "gaining and exercising political power" in Sierra Leone were crimes within the SCSL Statute.[24] Perhaps because of JCE's importance in the ongoing trial of former Liberian President Charles Taylor[25] and in the RUF case,[26] the Appeals Chamber clarified its position on three additional JCE-related issues.[27]

B. Forced Marriage

The Prosecutor charged the appellants with the crime of "Other inhumane acts" (forced marriage) under Article 2(i) of the SCSL Statute. The majority of the Trial Chamber (Justice Doherty dissenting),[28] found the count redundant and dismissed it. It adopted a restrictive approach to interpreting Article 2(i) by reasoning that the crime had to be distinguishable from the exhaustive list of sexual crimes contained in Article 2(g).

The majority of the Trial Chamber held that the Prosecutor did not demonstrate that forced marriage was a non-sexual crime, and was different from sexual slavery, and that the substantive law contained a gap that justified recognizing a separate crime of forced marriage. The Prosecutor appealed those findings.[29]

The Appeals Chamber traced the origin of "Other inhumane acts" to Article 6(c) of the Nuremberg Charter. It noted that "Other inhumane acts" was a residual provision intended to punish acts not specifically recognized as a crime against humanity, but that in their gravity, are comparable in nature. It observed that the offence is now widely recognized and captures a broad range of sexual and non-sexual acts. The Trial Chamber had erred by holding that forced marriage did not possess elements distinguishable from sexual slavery. The Appeals Chamber located two main differences[30] and defined forced marriage as follows:

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 suffering, or physical, mental or psychological injury to the victim.[31]

To avoid violation of the nullum crimen sine lege (no crime without law) principle, the Prosecutor argued that customary international law recognized forced marriage as an inhumane act within the meaning of crimes against humanity in Article 2(i) of the SCSL Statute.[32] The Appeals Chamber agreed.

It further agreed with the Prosecution that the elements of forced marriage, as a crime against humanity, had been fulfilled in this case. However, it noted that the Trial Chamber had used the evidence the Prosecution tendered to prove sexual slavery and forced marriage to instead convict the defendants for Count 9 (Outrages upon Personal Dignity).[33] The Appeals Chamber explained that, although nothing barred it from using the same facts to enter convictions of the defendants for the crime of forced marriage, it was unnecessary to do so because:

society's disapproval of the forceful abduction and use of women and girls as forced conjugal partners as part of a widespread and systematic attack against the civilian population, is adequately reflected by recognizing that such conduct is criminal and that it constitutes an "Other Inhumane Act" capable of incurring individual criminal responsibility in international law.[35]

C. Equality of Arms

Brima's first ground of appeal claimed that the Trial Chamber failed to ensure equality of arms between him and the Prosecutor, thereby leading to a miscarriage of justice. The Prosecutor countered that Brima's complaint focused on the broad doctrine of equality of arms but failed to show how the SCSL specifically violated this doctrine in this case.

The Appeals Chamber affirmed the right of each accused to adequate time and facilities under Article 17(4) of the SCSL Statute. It agreed that equality of arms is vital to ensure fair trials but concluded that Brima had failed to substantiate his claim.[36]

D. The Meaning of "Greatest Responsibility"

The SCSL has the power to prosecute persons bearing "greatest responsibility" for serious violations of international law and Sierra Leonean law after November 30, 1996.[37] An appeal by defendant Kanu forced the Appeals Chamber to address whether the phrase "greatest responsibility" limited the jurisdiction of the Prosecutor, or merely guided the exercise of prosecutorial discretion.

Kanu argued that the Trial Chamber should have determined whether he was among those bearing greatest responsibility. Kanu argued that he was not a leader bearing "greatest responsibility." Thus, the Prosecutor had not met the threshold jurisdictional requirement, so his convictions should be dismissed.[38]

The Prosecution responded that Kanu's argument was "absurd" because, if accepted, it would require an unwieldy factual analysis during pre-trial deliberations to determine that no other person bore greater responsibility than the accused. In any event, prosecutorial discretion cannot be judicially reviewed, except where bad faith and discrimination exists, which Kanu had not argued.[39]

The Appeals Chamber endorsed the Prosecutor's argument. It held that "greatest responsibility" in Article 1(1) is a mere guideline to the exercise of prosecutorial discretion, not a threshold jurisdictional requirement. Consequently, the Appeals Chamber dismissed Kanu's appeal as a "desperate" move to escape responsibility for his crimes.[40]

E. Mens Rea Requirement for Conscripting or Enlisting Child Soldiers

Kanu claimed that the Appeals Chamber should overturn his conviction for conscripting, enlisting, and using children under 15 years in hostilities because he lacked the requisite mens rea. Alternatively, Kanu argued that child recruitment was not a war crime by November 30, 1996, the start date of the SCSL's temporal jurisdiction.[41] The Prosecutor countered that the Appeals Chamber had already ruled, in a decision on a preliminary motion to dismiss a case for lack of jurisdiction, that the crime attracted individual criminal responsibility at customary international law by November 30, 1996.[42]

The Appeals Chamber found it "vexatious" that Kanu suggested he did not possess the mens rea for child recruitment.[43] It cited its previous decision[44] to affirm that using children in hostilities was a violation of Article 4(c) of the SCSL Statute. His conviction would stand.[45]

IV. Conclusion

The Appeals Judgment may be an important addition to international criminal jurisprudence or a missed opportunity to enrich that jurisprudence. For the women and children victims of the Sierra Leone war, the judgment may be lauded for upholding the conviction of the appellants, for the first time in international law, for the crime of conscripting and using children under 15 years in hostilities. Child soldiers were a particularly unfortunate feature of the Sierra Leonean conflict where, through a combination of drugs and duress, they became not only victims but also perpetrators of atrocities. In this regard, the judgment will also be of interest to the ICC Prosecutor, whose first case, Lubanga, hinges solely on charges of child recruitment.[46]

Similarly, those seeking to mainstream gender-based concerns into the subject matter jurisdiction of international tribunals may consider the Appeals Judgment a landmark. The Appeals Judgment recognizes, for the first time, a new crime against humanity under customary international law of forced marriage as an "Other inhumane act." Unlike the Trial Chamber, which emphasized the sexual aspects of forced marriage, the Appeals Chamber underscored other aspects of forced marriage, especially its patriarchal and coercive nature, the physical and psychological toll that it exacted from its victims, and the exclusivity that assumed the "bush wives" were mere property of their rebel "husbands". This ruling acknowledges, albeit only symbolically, the suffering of thousands of women brutalized and traumatized by the Sierra Leonean conflict.

To others, the Appeals Judgment may represent a missed opportunity for the SCSL's highest judicial organ. This perspective perceives that the Appeals Chamber failed to leave a clear imprint on significant legal issues that resonate beyond the SCSL's courtrooms. For example, the Appeals Chamber (1) failed to assess the fair trial implications of its findings on JCE liability and forced marriage vis-à-vis the rights of the appellants to know the case against them; (2) summarily dismissed the argument by Brima regarding the important doctrine of equality of arms; (3) showed instrumentalist reasoning in deciding the "greatest responsibility" question; and (4) failed to flesh out the elements of the crime of conscripting, enlisting, or using children in armed conflict, especially given their importance to the first case before the ICC.

About the Authors

Charles C. Jalloh, an ASIL member, is currently an Associate Legal Officer at the UN International Criminal Tribunal for Rwanda. He was formerly the Legal Advisor to the Office of the Principal Defender, Special Court for Sierra Leone and the Duty Counsel to former Liberian President Charles G. Taylor. His experience includes service as Legal Counsel in the Crimes Against Humanity and War Crimes Section, Canadian Department of Justice. Mr. Jalloh has various publications on the SCSL, including Consolidated Legal Texts for the Special Court for Sierra Leone (Martinus Nijhoff, 2007).

Janewa Osei-Tutu is currently an Associate Legal Officer, UN International Criminal Tribunal for Rwanda, and is on leave as Legal Counsel, Canadian Department of Justice.

Footnotes