The Prosecutor v. Moinina Fofana and Allieu Kondewa
| Court |
Special Court for Sierra Leone (Appeals Chamber), Sierra Leone |
| Case number |
SCSL-04-14-A |
| Decision title |
Judgement |
| Decision date |
28 May 2008 |
| Parties |
- The Prosecutor
- Moinina Fofana
- Allieu Kondewa
|
| Other names |
|
| Categories |
Crimes against humanity, War crimes |
| Keywords |
children, common Article 3, conscription, crimes against humanity, inhumane acts, Murder, pillage, violence to life, war crimes |
| Links |
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back to topSummary
Fofana and Kondewa were high-ranking members of the Civil Defense Forces (CDF) who participated in the armed conflict in Sierra Leone on the side of the ousted government of President Kabbah. They were convicted by the Special Court for aiding and abetting the planning of war crimes by CDF forces, particularly murder, cruel treatment, burning of civilian property, collective punishment and, for Kondewa, enlisting child soldiers.
On appeal, the Appeals Chamber found that there was sufficient evidence to convict both men for crimes against humanity. However, the convictions for collective punishment and enlistment of child soldiers were overturned. At sentencing, in order to reflect the gravity of the crimes and the new conviction for crimes against humanity, the Appeals Chamber increased the sentences: Fofana’s from 6 years to 15 years, Kondewa’s from 8 years to 20 years. The Appeals Chamber refused to take into account the political motives of Fofana and Kondewa, and particularly that they were fighting for a just cause in order to restore President Kabbah to power.
back to topProcedural history
Fofana and Kondewa, alleged leaders of the rebel group Civil Defense Forces (CDF), were indicted on 26 June 2003 for crimes against humanity and war crimes.
Their trial was joined with that of Samuel Hinga Norman on 28 February 2004, who later died in custody and the case against him was closed.
The trial commenced on 3 June 2004; Trial Chamber I delivered its judgement on 2 August 2007 convicting Fofana and Kondewa for aiding and abetting in the planning of the war crimes of murder, cruel treatment, pillage, and collective punishments. Kondewa was additionally convicted for enlisting child soldiers.
Trial Chamber I sentenced Fofana to 6 years’ imprisonment and Kondewa to 8 years’ imprisonment on 9 October 2007.
The Prosecution and Kondewa filed Notices of Appeal on 23 October 2007; there was no appeal by Fofana.
back to topRelated developments
Fofana and Kondewa are both currently serving prison sentences in Rwanda.
Along with Issa Hassan Sesay, Morris Kallon and Augustine Gbao (former Revolutionary United Front (RUF) rebel leaders, also convicted by the Special Court for Sierra Leone and serving sentences in Rwanda), both men are petitioning the Rwandan government to be transferred from Rwanda on the grounds that they have suffered poor nourishment and a lack of access to medical facilities due the conditions of their detention.
See also ‘S. Leone War Criminals Complain about Rwandan Jail Treatment’, Radio Netherlands Worldwide, 3 November 2011.
back to topLegally relevant facts
Fofana and Kondewa were high rankign members of the CDF, a security force created by President Kabbah in an effort to re-establish his government following a coup by Revolutionary United Front (RUF) and Armed Forces Revolurionary Council (AFRC) members (para. 8).
The Trial Chamber found the Accused not guilty of crimes against humanity on the ground that the attacks were not primarily directed against the civilian population, but against rebel RUF/AFRC forces (para. 17).
Instead, the Accused were found liable for aiding and abetting the perpetartion of war crimes by CDF forces in the Southern and Eastern provinces of Sierra Leone, in particular, murder, cruel treatment, pillage, and collective punishment. Kondewa was also found liable for enlistng child soldiers (para. 19).
back to topCore legal questions
- Did the Trial Chamber err in law when it required that the civilian population be the primary, rather than incidental, target in order to find crimes against humanity?
- What conduct is required of the Accused in order to establish the legal requirements for the offense of enlisting children to participate in hostilities?
- Did the Trial Chamber commit an error in exercising its sentencing discretion by taking into consideration the political motives of the Accused in participating in hostilities?
back to topSpecific legal rules and provisions
- Article 20 of the Statute of the Special Court for Sierra Leone.
- Rule 106 of the Rules of Procedure and Evidence of the Special Court for Sierra Leone
back to topCourt's holding and analysis
The Appeals Chamber found that the Trial Chamber did not err in law in requiring that the civilian population be the primary target of widespread and systematic attacks, but did err in fact as the evidence proves that civilians were the targets of the attack (para. 306). That the purpose of the attack was the destruction of the RUF/AFRC forces is immaterial (para. 300). Following the Chamber’s establishment of the remaining legal requirements (paras. 310-320), it convicted the Accused for crimes against humanity (para. 322).
The convictions for both Accused were overturned for the offense of collective punishment due to the absence of specific intent (para. 231). Kondewa’s conviction for enlisting child soldiers was also overturned as the factual nexus between Kondewa’s conduct and the child joining the CDF was missing (paras. 141, 146).
The Appeals Chamber found that the Trial Chamber erred in law when it considered the Accused’s political motives as a mitigating circumstance (para. 535).
The sentences were increased to reflect the Trial Chamber’s errors and the new convictions for crimes against humanity: Fofana was convicted for 15 years; Kondewa for 20 years (para. 565).
back to topFurther analysis
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