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(Source picture: TRIAL)

(Source picture: TRIAL)

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

Court Special Court for Sierra Leone (Appeals Chamber), Sierra Leone
Case number SCSL-2004-16-A
Decision title Judgment
Decision date 22 February 2008
Parties
  • The Prosecutor
  • Alex Tamba Brima
  • Brima Bazzy Kamara
  • Santigie Borbor Kanu
Other names
  • AFRC Case
Categories Crimes against humanity, War crimes
Keywords children, 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
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Summary

In March 1997, members of the Sierra Leone Army overthrew the government of President Kabbah and installed a new government, the Armed Forces Revolutionary Council.

Brima, Kamara and Kanu were high-ranking members of the AFRC who were convicted by Trial Chamber II of the Special Court for Sierra Leone of war crimes and crimes against humanity. In particular, they ordered, committed, planned or were responsible as superiors for the murders, beatings, mutilations, rapes, forced marriages, abductions, looting, collective punishments and recruitment of child soldiers perpetrated by the AFRC forces. They were sentenced to 50 years’ imprisonment (Brima and Kanu) and 45 years’ imprisonment (Kamara). On appeal, the Appeals Chamber upheld the convictions and the sentencing, despite protests from the Accused that the terms of imprisonment were excessively harsh. The Chamber also made legal findings with respect to forced marriage, finding that it is a distinct crime against humanity from sexual slavery, a novelty in international criminal law. 

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Procedural history

Brima and Kamara were indicted on 7 March 2003; Kanu on 16 September 2003. The Trial Chamber ordered a joint trial of the three Accused on 28 February 2004.

The trial commenced 7 March 2005. Trial Chamber II delivered its verdict on 20 June 2007 convicting all three of the Accused for six counts of violations of common Article 3 to the Geneva Conventions, four counts of crimes against humanity and one count of other serious violations of international humanitarian law. On 19 July 2007, Trial Chamber II sentenced Brima and Kanu to 50 years’ imprisonment; Kamara to 45 years’ imprisonment. 

On 13 September 2007, the Prosecutor, Brima, Kamara and Kanu filed Notices of Appeal.

The Appeals Chamber delivered its judgement on 22 February 2008. 

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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. 4). 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. The RUF was invited to join (para. 7).

Their reign lasted only until the reinstateent of President Kabbah in March 1998. After this date, the armed conflict continued between the RUF/AFRC forces and the Civil Defense Forces, loyal to Kabbah until the cessation of hostilities in January 2002 (paras. 10-12).

Numerous atrocities were committed during this time by the AFRC including murder, mutilation, enslavement, rape, sexual violence, rape, terrorism amd collective punishment. The Accused were high ranking members of the AFRC with positions in the Supreme Council, the highest decision making body at the time that the AFRC was in government (para. 17). 

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Core legal questions

  • Was Trial Chamber II correct in finding that the Prosecution had defectively pleaded joint criminal enterprise due to the common plan not constituting a crime within the jurisdiction of the Court?
  • Did Trial Chamber II err in law when it held that Count 7 of the Indictment charging the Accused with sexual slavery and sexual violence offended the rule against duplicity and prevented the Accused from knowing which crime to defend himself against?
  • Did the Trial Chamber err in law when it subsumed forced marriage under the offense of sexual slavery and rejected the Prosecution’s contention that non-sexual forced marriage is a discrete crime against humanity, namely the crime of ‘other inhumane acts’ under Article 2(i) of the Statute?
  • Are there any grounds for reducing the sentences on the basis that the Trial Chamber failed to exercise its discretion correctly?

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Specific legal rules and provisions

  • Articles 2(g), (i) and 6(1) of the Statute of the Special Court for Sierra Leone.

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Court's holding and analysis

The Appeals Chamber found that the requirement that the common plan of a joint criminal enterprise be inherently criminal can be satisfied either by an objective, which is a crime within the Statute, or that the means of achieving the objective require the commission of crimes within the Statute (para. 80). The Prosecution therefore correctly pleaded joint criminal enterprise as it results from the Indictment read as a whole that the Prosecution alleges that the common plan gaining control over the territory of Sierra Leone would be achieved by conduct constituting crimes within the Statute (paras. 82-84).

Trial Chamber II did not err in holding that Count 7 of the Indictment offended the rule against duplicity as sexual slavery and sexual violence are two distinct crimes against humanity with different constitutive elements pursuant to Article 2(g) of the Statute (para. 102). Although the Appeals Chamber did not agree with the Trial Chamber’s choice to quash the entire count, it conducted no miscarriage of justice (para. 110).

With regards to forced marriage, the Appeals Chamber held that it does amount to the crime of ‘other inhumane acts’ under Article 2(i) of the Statute, distinct from the crime of sexual slavery (para. 195) and satisfying the elements of ‘other inhumane acts’ (paras. 198-202). That Article 2(g) exhaustively lists sexual crimes does not preclude the possibility of charging as ‘other inhumane acts’ crimes with a sexual component (para. 186).

Finally, the Chamber upheld the sentences (para. 326), dismissing Brima and Kamara’s contention that they were excessively harsh (para. 311) and that certain mitigating circumstances should have been taken into account (para. 315)

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Further analysis

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Instruments cited

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Additional materials

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