January/February 2005, Page 34

Defending War Crimes In Africa: The Special Court For Sierra Leone
By Tom Briody

It is the first day of trial. The defendants enter under heavy guard, glancing about the massive courtroom, nodding to their lawyers, waving at friendly faces seated behind a glassed-in gallery. The sound of three knocks — a brass scepter striking dark brown mahogany — pierces the air, and three judges take their places behind a massive bench. They wear robes of black, white and red satin. In a rich baritone laced with the accent of his native Cameroon, one of them calmly observes that the trial scheduled to commence on this day “is indeed a landmark event and a novelty in the history of international criminal justice.”1

Thus begins the first of at least three trials scheduled before the Special Court for Sierra Leone. The defendants range from a highly educated, former government minister to a simple bushman who speaks only his native tribal language. Some of the crimes alleged are well established — murder, looting, collective punishment and other violations of international humanitarian law. Other alleged offenses are not, including sexual enslavement and enlistment of child soldiers. Indeed, these latter charges are a source of considerable dispute and disagreement in the trial and appeals chambers.
The Special Court for Sierra Leone sits in Freetown, the capital of a West African nation that is not much larger than the state of Connecticut. The former British colony has enormous wealth, primarily in the form of diamonds mined in fields to the north and east of Freetown. Despite these riches, the country has been among the world’s poorest, for a complex set of reasons, including its colonial past where Sierra Leoneans and their natural resources have been exploited as well as its inability to implement what the U.N. now labels as good governance practices.

Beginning in the early 1990s, a rebellion commenced against the elected government of Sierra Leone. While precise details of the origin of the conflict are disputed, much of the fighting was conducted by three armed factions. The rebels, who were commonly referred to as the Revolutionary United Front (RUF), were opposed by a government-backed militia known as the Civil Defence Forces (CDF). Following the failure of a peace agreement in 1996, a group of non-commissioned army officers helped form the Armed Forces Revolutionary Council (AFRC). In 1997, the AFRC overthrew the elected government and joined forces with the RUF. The CDF ultimately played a significant role in suppressing the joint RUF and AFRC rebellion, which ended in 2000.

Sierra Leone’s civilians paid a heavy price in the war. Many were victims of atrocities, including murder, mutilation, looting and burning. Still others were forced to labor in the rich diamond mines to raise funds for arms and soldiers. Human rights investigators allege that each faction raped women and forced them into marriage, and used children under the age of 15 as soldiers.

The government of Sierra Leone and the United Nations entered into an agreement calling for prosecution of those persons “who bear the greatest responsibility for serious violations of international humanitarian and Sierra Leonean law[.]”2 An American, David Crane, was appointed chief prosecutor of the newly-formed special court. In apparent reaction to criticism of the slow pace of other international tribunals prosecuting war crimes in the former Yugoslavia and Rwanda, the Special Court is expected to conclude trials with greater speed and efficiency than the tribunals now sitting in The Hague and Arusha, Tanzania. The first indictments were issued in the spring of 2003. The first trial against three CDF defendants commenced on June 3, 2004. A second trial against three accused leaders of the RUF began the following month.

Defending accused war criminals from a small African nation poses a unique challenge. While the official language of the court is English, most of the defendants are more comfortable speaking Krio, or tribal languages such as Mende. Many of the defense teams are comprised of Sierra Leonean lawyers along with Dutch, American and British counsel. The clash in cultures is apparent in courtroom style, client relations, and written submissions to the court.

Not only does the international composition of the defense teams pose challenges, but the criminal process itself, embedded as it is in western culture and concepts, appears to pay little heed to local cultural norms. This principle is most apparent in some of the substantive charges appearing in the CDF indictments. Many of Sierra Leone’s citizens have an abiding belief in the powers of the supernatural. One of the CDF defendants, Allieu Kondewa, is alleged to have performed “initiation” ceremonies on young militiamen called “Kamajohs” for the purpose of “bulletproofing” them.
Witnesses for both the prosecution and defence are expected to testify that the mystical powers possessed by Kondewa are real. For example, both prosecution and defense witnesses will describe observing bullets bouncing off Kamajoh fighters. How the court ultimately adjudges various aspects of criminal liability in such a context could represent a new stage in the development of international criminal jurisprudence

Despite the desire for trials to be swift, delays are inevitable. One notable example is the 11-day continuance occasioned by the request of Sam Hinga Norman, a former CDF leader and high-ranking government minister, to represent himself. As a result, the first three-week trial session saw testimony from just four witnesses when as many as 19 had been scheduled to testify. The court evidently learned from this delay and swiftly rejected a request by another defendant to terminate his counsel at the beginning of the RUF trial in July.3 The schedule of trials is also staggered, with the court hearing evidence against one set of defendants each alternating month.

The special court has also gone to extreme lengths to provide security for witnesses, many of whom were combatants or victims of atrocities. Virtually all witnesses testify behind a screen, hidden from the view of courtroom observers. They are identified only by codes or numbers, and the parties are cautioned to avoid inadvertent use of identifying information during direct and cross-examination. Restrictions on access to prosecution witnesses and redaction of their statements to avoid identifying data make defense investigation frustratingly difficult, but at least to date, not impossible.
Proving criminal responsibility for the defendants won’t be easy. While some defendants are accused of individual criminal acts, most of the charges require the prosecution to establish that the defendants had command responsibility for criminal acts. The doctrine of command responsibility is nuanced and multi-faceted. Reduced to its essence, the prosecutor must show that (1) a superior-subordinate relationship existed; (2) the superior knew or had reason to know that a criminal act was about to be or had been committed; and (3) the superior failed to take the necessary and reasonable measures to prevent the criminal act or punish the perpetrator thereof.4 Proving such elements becomes more difficult when the defendant is a non-combatant, as some of the accused are.
Prosecutors also allege that RUF and AFRC defendants engaged in a joint criminal enterprise (“JCE”) to take and maintain political power for the purpose of exploiting diamond mines. The International Criminal Tribunal for the former Yugoslavia described three JCE categories, drawn from post-WWII cases and particularly the British common purpose doctrine: the first, basic category, where participants agree to a common criminal plan and share the same criminal intent; the second, systemic category, where there is an organized system of ill treatment; and the third, extended category, where all JCE participants are held responsible for crimes that, while not part of the common criminal plan, were nevertheless foreseeable consequences of it.

JCE is most effective in convicting senior officials who, while removed from the physical commission of crimes, are deeply involved in the organization and its activities. It allows the prosecution to charge leaders with responsibility for crimes committed by individuals over whom they had no effective control — otherwise, command responsibility would apply.5 The JCE doctrine, particularly the third category, has been criticized for creating liability for those who neither committed any criminal offense nor had the intent to commit such an offense.

It is important to note that two defendants indicted by the special court have died since indictments were returned, leading to criticism and speculation about the court’s historic impact. Moreover, one of the remaining challenges facing this court involves an accused head of state who has never appeared in Freetown. Charles Taylor, former president of Liberia. He was indicted in 2003 on charges of funding, training, commanding and controlling rebel forces. Prosecutors hoped and expected to have Taylor stand trial with the other RUF defendants, and his absence at the opening of that trial was duly noted.6 Taylor remains safely in exile in a hillside mansion in Nigeria, and the Nigerian government has so far refused all requests to extradite him.

The trials now underway in Freetown have received scant attention in the American media, and only slightly more coverage in Europe and Great Britain. Yet as the cases of Augustine Gbao, Allieu Kondewa, Sam Hinga Norman and six other defendants unfold, they will set important precedents for the future of international criminal law, both substantive and procedural.

The key question is whether those precedents will reflect a genuine sense of fairness and due process, or simply a well-intentioned attempt to bring meaningful justice to a land that has seen unimaginable suffering.

Notes

1. Opening Statement, Hon. Benjamin Mutanga Itoe, President, Trial Chamber, Special Court of Sierra Leone, June 3, 2004.

2. Art. 1, Agreement Between the United Nations and the Government of Sierra Leone on the Establishment of a Special Court for Sierra Leone, January 16, 2002.

3. Prosecutor v. Gbao, Decision on Request to Withdraw Counsel, July 7, 2004.

4. Prosecutor v. Bagilishema, (Trial Chamber) ICTR, 7 July, 2001, para. 38.

5. Prosecutor v. Tadic, ICTY-94-1 (Appeals Judgment), 15 July 1999, para. 190.

6. See Opening Statement of Prose-cutor David Crane, Prosecutor v. Sessay, Kallon, Gbao, 5 July, 2004 (“It is a chilling tale of horror, a joint criminal enterprise that spread beyond Sierra Leone and involved external players like the former president of Liberia, Charles Taylor.”)


(The author wishes to thank Jane Rocamora for her thoughts and comment, and Liz Squires and Mike Williams of Fordham Law School for their assistance with research on the subject of joint criminal enterprise liability.) n



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