The Prosecutor v. Alex Tamba Brima, Brima Bazzy Kamara and Santigie Borbor Kanu

Court	Special Court for Sierra Leone (Trial Chamber II), Sierra Leone
Case number	SCSL-04-16-T
Decision title	Judgment
Decision date	20 June 2007
Parties	The Prosecutor Alex Tamba Brima Brima Bazzy Kamara Santigie Borbor Kanu
Other names	AFRC Case
Categories	Crimes against humanity, War crimes
Keywords	child, common Article 3, conscription, enforced disappearance, enslavement, mutilation, other inhumane acts, outrages upon personal dignity, pillage, rape, Sexual slavery, violence to life, violence to person, war crimes
Links	Judgment

Summary

Following the coup by members of the Revolutionary United Forces in Sierra Leone, the democratically elected government of President Kabbah was replaced by a military junta headed by the Armed Forces Revolutionary Council (AFRC) in 1997.

The Accused, Brima, Kamara and Kanu, were leading members of the fighting forces of the AFRC throughout the armed conflict until the hostilities ended with the Lomé Peace Accord in July 1999. Trial Chamber II of the Special Court for Sierra Leone found all three Accused responsible for ordering, committing, planning the crimes perpetrated by AFRC forces against civilians, including murder, rape, enslavement, collective punishment, mutilation, burning of civilian property and use of child soldiers in the hostilities. The Accused were also liable as the superiors in charge of AFRC forces for failing to prevent the rapes committed by their subordinates.

Procedural history

Brima and Kamara were indicted on 7 March 2003; Kanu on 16 September 2003 for 14 counts of war crimes and crimes against humanity including acts of terrorism, collective punishment, extermination, murder, sexual violence namely rapes and forced marriages, mutilation, use of child soldiers, enslavement, and pillage.

The Trial Chamber ordered a joint trial of the three Accused on 28 February 2004. The trial commenced on 7 March 2005 and closing arguments were heard on 7 and 8 December 2006. Trial Chamber II delivered its judgment on 20 June 2007.

Related developments

Trial Chamber II sentenced Brima and Kanu to 50 years’ imprisonment and Kamara to 45 years’ imprisonment on 19 July 2007.

The Prosecutor as well as Brima, Kamara and Kanu filed Notices of Appeal on 13 September 2007, alleging that the Trial Chamber committed numerous errors of law and fact. On 22 February 2008, the Appeals Chamber dismissed the appeals and upheld the sentences imposed by Trial Chamber II.

Legally relevant facts

The armed conflict began in Sierra Leone in March 1991 when members of the Revolutionary United Front (RUF) initiated operations to overthrow the government of Sierra Leone (para. 157). In May 1997, members of the Sierra Leone army succeeded in a coup and the new government, the Armed Forces Revolutionary Council (AFRC) was established, and the RUF was invited to join (para. 164).

The armed conflict continued between the RUF/AFRC forces and those of Civil Defense Forces, loyal to the ousted President Kabbah who intended to restore him to power (para. 166). In March 1998, the AFRC government was overthrown due to the efforts of forces from the Economic Community of West African States Monitoring Group. Until the signing of the Lomé Peace Accrd in July 1999, AFRC forces continued to control parts of Sierra Leone and organise attacks including an invasion of Freetown in 1999 (para. 202)

The Prosecutor alleges that the Accused held senior positions within the AFRC fighting forces and were responsible for mutliple counts of war crimes and crimes against humanity perpetarted throughout the territory of Sierra Leone from the establishment of the AFRC in May 1997 until January 2000 (paras. 16-18).

Core legal questions

Can forced marriage be considered a discrete crime against humanity under the category of ‘other inhumane acts’ or is it subsumed within the offense of sexual slavery?
For the Accused to be liable for participation in a Joint Criminal Enterprise, is it necessary for the common plan of that enterprise to be a crime within the jurisdiction of the Court?

Specific legal rules and provisions

Articles 2(a), (b), (c), (g) and (i), 3(a), (b), (d), (e) and (f), 4(c), 6(1) and 6(3) of the Statute of the Special Court for Sierra Leone.

Court's holding and analysis

Trial Chamber II convicted all three of the Accused on all charges, with the exception that a conviction was not entered for sexual slavery and sexual violence (para. 696) or forced marriage (para. 714).

With regards to forced marriage, the Chamber rejected the Prosecution’s contention that forced marriage is a discrete crime falling under the offense of ‘other inhumane acts.’ The Chamber considered that forced marriages occur within the context of sexual slavery and are therefore subsumed under that offence (para. 711). The Prosecution had not provided sufficient evidence to establish the elements of a non-sexual crime of forced marriage that would be independent of sexual slavery (para. 704). Justice Doherty dissented (para. 14, Dissenting Opinion).

The Accused were found guilty pursuant to Article 6(1), with the exception of the crime of rape for which the Accused were found guilty on the basis of superior responsibility pursuant to Article 6(3) (paras. 2113-2122).

The Chamber rejected the Prosecution’s contention that the Accused should be held liable for participation in a Joint Criminal Enterprise as the common purpose identified by the Prosecution – to gain control over the territory of Sierra Leone, in particular the diamond mining area – was not a crime within the jurisdiction of the Court. As such, this mode of liability was defectively pleaded (para. 67)