The Prosecutor v. Momina Fofana and Allieu Kondewa

Court	Special Court for Sierra Leone (Trial Chamber I), Sierra Leone
Case number	SCSL-04-14-T
Decision title	Judgement on the Sentencing of Moinina Fofana and Allieu Kondewa
Decision date	9 October 2007
Parties	The Prosecutor Moinina Fofana Allieu Kondewa
Other names	CDF Case
Categories	War crimes
Links	Sentencing Judgement

Summary

The Accused were members of the Civil Defense Forces of Sierra Leone, fighting the RUF (Revolutionary United Front) and AFRC (Armed Forces Revolutionary Council) rebels in an effort to restore the democratically elected President Kabbah who had been ousted following a coup. Their activities, however, did not always target enemy forces; large numbers of civilians, including young children and women were made the object of brutal attacks, often by machetes.

Fofana and Kondewa were convicted by Trial Chamber I for 4 counts of war crimes of murder, cruel treatment, pillage and collective punishment. Kondewa was additionally convicted for recruitment of child soldiers. The Trial Chamber, in determining sentencing, took into account the gravity of the offences and the role of the Accused. In particular, the Trial Chamber considered it a mitigating circumstance that the Accused had engaged in the conflict out of a sense of duty in order to protect civilians, and had pursued a legitimate and justifiable purpose of returning former President Kabbah to power. Consequently, Fofana was sentenced to 6 years in prison and Kondewa to 8 years.

Procedural history

The Accused were indicted on 26 June 2003. Their cases were joined with that of Sam Hinga Norman on 28 February 2004 (the latter died in custody and the case against him was closed).

The trial commenced on 3 June 2004. Trial Chamber I delivered its verdict on 2 August 2007. Fofana and Kondewa were found guilty of 4 counts of war crimes of murder, cruel treatment, pillage and collective punishment. Kondewa was additionally found guilty of the war crime of using child soldiers. The Chamber found that the Prosecution failed to prove beyond reasonable doubt liability for crimes against humanity.

Related developments

The Prosecution and Kondewa filed Notices of Appeal on 23 October 2007; there was no appeal by Fofana. The Prosecution appealed the sentencing on the grounds that the Trial Chamber committed errors in law, in fact and procedural errors during the sentencing of Fofana and Kondewa.

The Appeals Chamber delivered its judgment on 28 May 2008. The Chamber entered new convictions for the crimes against humanity of murder and inhumane acts and imposed new sentences. The convictions and thus sentences for the offense of collective punishment were overturned for both Fofana and Kondewa; and Kondewa’s conviction and sentence for the offence of use of child soldiers was also overturned. The convictions for the other counts were upheld and the sentences increased on the grounds that the Trial Chamber had taken into consideration as mitigating circumstances factors it should not have in the exercise of its discretion (para. 559).

Fofana was subsequently convicted for 15 years; Kondewa for 20 years (para. 565).

Legally relevant facts

The Accused, as members of the CDF forces, were initially engaged in the conflict in Sierra Leone in support of a legitimate cause – the restoration of the democratically elected President Kabbah. However, their combat activities and operations were not always directed against the enemy AFRC forces but included attacks on civilians (para. 85).

In particular, in the Tongo Field area, a significant number of civilians, including young children and women, as well as members of the Loko, Limba and Temne tribes were murdered on a large scale and with a significant degree of brutality (para. 47).

Both Fofana and Kondewa played central roles in the CDF organisation: Fofana as Director of War at Base Zero was regarded as having power and authority; Kondewa as High Priest exercised control over the Kamajors (paras. 59, 61).

Core legal questions

Where the Accused occupies a position in the community to which a duty of trust attaches, and this trust is breached through the commission of offences, can the breach be considered an aggravating circumstance?
Can the doctrine of necessity be considered as either a defence or a mitigating circumstance in the present instance?
Can the purpose of the mission of the CDF forces in which the Accused Persons served be taken into consideration as a mitigating circumstance?

Specific legal rules and provisions

Article 19 of the Statute of the Special Court for Sierra Leone.
Rules 100 and 101 of the Rules of Procedure and Evidence of the Special Court for Sierra Leone.

Court's holding and analysis

The Statute and Rules do not exhaustively enumerate the circumstances that may be considered aggravating. As such, the Chamber considers that if there has been a breach of trust or authority in the event that the Accused was under a duty to protect or defend the victims, then this may be considered an aggravating circumstance. Both Accused were under such a duty; Fofana as a community elder and Kondewa as High Priest.

The Majority did not allow necessity as a mitigating factor on the grounds that its constitutive elements as a defence are not met and it cannot stand as a defence to serious violations of international humanitarian law. Justice Thompson dissented.

In the exercise of its discretion to consider mitigating circumstances other than those listed in Rule 101(B), the Chamber took into account the engagement of the CDF forces in a legitimate and defendable cause to restore President Kabbah and their motives of civic duty. That the commission of the crimes surpassed acceptable limits of humanitarian law does not preclude their role in the peace process from being taken into account.

Fofana was sentenced to 6 years’ imprisonment; Kondewa to 8 years’ imprisonment.

Further analysis

‘Political Considerations in Sentence Mitigation for Serious Violations of the Laws of War before International Criminal Tribunal’, Human Rights Watch Memorandum, 12 March 2008;
‘Sierra Leone: War Crimes Ruling Bolsters Victim Protection’, Human Rights Watch, 29 May 2008.

Instruments cited

Statute of the Special Court for Sierra Leone, Agreement between the United Nations and the Government of Sierra Leone pursuant to Security Council Resolution 1315 (2000) of 14 August 2000.
Rules of Procedure and Evidence of the Special Court for Sierra Leone, pursuant to Article 14 of the Statute of the Special Court for Sierra Leone, 12 April 2002.