The Prosecutor v. Moinina Fofana and Allieu Kondewa

Court	Special Court for Sierra Leone (Trial Chamber I), Sierra Leone
Case number	SCSL-04-14-T
Decision title	Judgement
Decision date	2 August 2007
Parties	The Prosecutor Moinina Fofana Allieu Kondewa
Other names	CDF Case
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	Judgement

Summary

Fofana and Kondewa were leaders in the Civil Defense Forces (CDF), an armed group that was participating in the conflict in Sierra Leone in order to restore the democratically elected government of President Kabbah who had been ousted by a coup of the Revolutionary United Forces (RUF) and Armed Forces Revolutionary Council (AFRC). The Accused were charged with eight counts of war crimes and crimes against humanity, committed throughout the Southern and Eastern provinces of Sierra Leone including murder, cruel treatment (mutilation, hacking of limbs), terrorising the civilian population, burning and looting civilian property, using child soldiers in the hostilities and collective punishments.

Trial Chamber I found that the Accused were not guilty of crimes against humanity as it could not be proven that the attacks were directed primarily against the civilian population. The Accused were found guilty of aiding and abetting CDF forces in their commission of the war crimes of murder, cruel treatment, pillage and collective punishments; Kondewa was additionally guilty of enlisting child soldiers. The Trial Chamber did not consider that they were guilty either for participating in a common plan to defeat the RUF/AFRC forces or as superiors responsible for the acts committed by their CDF subordinates.

Procedural history

As alleged leaders of the rebel group, Civil Defence Forces, Fofana and Kondewa were indicted on 26 June 2003 for crimes against humanity and war crimes, in particular murder, inhumane acts, cruel treatment, pillage, terrorising the civilian population, enforcing collective punishments and use of child soldiers.

Their trial was joined with that of Samuel Hinga Norman, another alleged CDF leader, on 28 February 2004 (Norman died prior to the conclusion of the trial; the case against him was closed).

The trial commenced on 3 June 2004. Closing arguments from the Prosecution and the Defence took place on 28-30 November 2006.

Trial Chamber I delivered its judgment in the case on 2 August 2007.

Related developments

Trial Chamber I delivered its sentencing judgment on 9 October 2007 sentencing Fofana to 6 years’ imprisonment and Kondewa to 8 years’ imprisonment.

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 sentenced to imprisonment for 15 years; Kondewa for 20 years (para. 565).

Legally relevant facts

The CDF was a security force composed of hunters who served the local chiefs in Sierra Leone in order to defend villages in the rural parts of the country. They participated in the armed conflict in Sierra Leone in support of the elected government in its fight against the forces of the Revolutionary United Front (RUF) and the Armed Forces Revolutionary Council (AFRC) (para. 2).

The Accused are allegedly top leaders within the CDF; Fofana was the Director of War and Kondewa was a High Priest (para. 1).

They are charged with eight counts of war crimes and crimes against humanity including murder of civilians; violence to life, health and physical and mental well-being; Inhumane acts; cruel treatment; pillage; acts of terrorism; collective punishments and use of child soldiers (para. 3). These acts were concentreated in the Bo, Moyamba and Bonthe Districts in the Southern Province of Sierra Leone and Kenema District in the Eastern Province (para. 50).

The Accused are alleged to be criminally responsible for the afore-mentioned offenses through participating in a Joint Criminal Enterprise whose purpose was to defeat the RUF/AFRC forces and gain control over the territory of Sierra Leone (para. 19, Indictment) and as superiors in the CDF, responsible for the conduct of their subordinates.

Core legal questions

Does the contextual requirement that the civilian population be the object of the attack preclude the existence of crimes against humanity where the attacks were also directed at rebel forces?
Is it necessary for the Accused to have knowledge of the intent of the perpetrator or to share his intent to commit the crimes if he is to be held liable for aiding and abetting?
Can the same conduct of the Accused give rise to multiple criminal convictions under different provisions in the Statute of the Court?

Specific legal rules and provisions

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

Court's holding and analysis

The Accused were found not guilty of committing crimes against humanity as the opposing rebel forces, and not the civilian population, were the primary object of the attack. (paras. 693-694).

The Accused were found not guilty of participation in a joint criminal enterprise (para. 732) and not guilty of superior responsibility (paras. 733, 745). They were found guilty of aiding and abetting in the preparation of the crimes of murder, cruel treatment, pillage and collective punishment carried out by the CDF forces (paras. 763-764). Kondewa was additionally found guilty of enlisting child soldiers (para. 972).

For the specific intent crime of collective punishment, the aider and abettor must have knowledge of the specific intent of the perpetrator; such knowledge can be inferred from the circumstances existing at the time (paras. 728, 740).

Multiple criminal convictions for the same conduct of the Accused under different statutory provisions is permissible only if each statutory provision requires proof of a fact not required by the others (para. 974). The Accused can be convicted for the offence of collective punishments on the basis of the same underlying conduct as that for the offences of murder, cruel treatment and pillage because proof of two distinct facts is required: specific intent to punish collectively and punishment imposed on multiple persons (para. 977).

Further analysis

D. Hoffman, ‘The Meaning of a Militia: Understanding the Civil Defence Forces of Sierra Leone’, African Affairs, 2007, Vol. 106, pp. 639-662;
M. Staggs Kelsall and S. Stepakoff, ‘When We Wanted to Talk About Rape: Silencing Sexual Violence at the Special Court for Sierra Leone’, The International Journal of Transitional Justice, 2007, Vol. 1, pp. 355-374;
V. Oosterveld, ‘Lessons from the Special Court for Sierra Leone on the Prosecution of Gender-Based Crimes’, American University Journal of Gender, Social Policy & the Law, January 2009;
V. Oosterveld, ‘The Special Court for Sierra Leone, Child Soldiers and Forced Marriage: Providing Clarity or Confusion?’, Canadian
Yearbook of International Law, 2007, Vol. 45;
‘The CDF Accused’, The Hague Justice Portal.

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.