If the Prosecution can show that the Accused persons directly ordered, planned or instigated the criminal acts perpetrated by others, then they co uld be found directly liable. However, if they cannot prove this, the only way in which the Prosecution can prove that the Defendants are responsible, is indirectly, through the doctrine of ‘command responsibility’.
In all cases before the Special Court, the issue of command responsibility is of crucial importance. This article explains the requirements that the Prosecution has to fulfil in order to establish that Accused persons should be held liable by virtue of command responsibility, and tracks the evidence thus far presented in the trial of the three CDF (Civil Defence Force) Accused.
Command Responsibility as a Legal Concept
It has been an important legal precept for thousands of years that leaders can be found criminally liable for the actions of their subordinates, if they can be found to be personally guilty for those actions. Today, command responsibility is well established in international criminal law, recognised in Article 28 of the ICC Statute, Article 7(3) of the ICTY Statute and Article 6(3) of the ICTR Statute.
The Statute of the Special Court follows such precedents in its Article 6(3), which states that
“[t]he fact that any of the acts… [were] committed by a subordinate does not relieve his or her superior of criminal responsibility if he or she knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior had failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof.”
Thus in order to show that each CDF Accused can be held liable by virtue of command responsibility, the Prosecution need to show three things. First, they must show a superior-subordinate relationship. Secondly, the superior must have known or had reason to know that the subordinate was about to commit a crime or had committed a crime. Third, the superior must have failed to take necessary and reasonable action to prevent the crime or punish the perpetrator.
Special Court Courthouse
Superior-Subordinate Relationship
When deciding the first of these, the Court can look beyond the commander’s theoretical power into the commander’s actual power. Subordination may be direct or indirect, the latter of which is often a question of psychological pressure. Indeed, the principle extends beyond military commanders to include civilian commanders (with important ramifications for the Accused Kondewa if he denies military involvement). The crucial factor is the degree of authority: whether the superior is in a position to take reasonable measures to attempt to prevent or punish. Control must be ‘effective’.
Evidence has been tendered which both supports and undermines the proposition that the three CDF Accused were in positions of command responsibility. Prosecution witness TF2-222 recalled how in November 1997 at ‘Base Zero’ the alleged CDF headquarters in Talia (located in the South of Sierra Leone), “everyone was a commander”, and commented that there was no effective command structure in place. As he remembered it, anyone who could command ten or fifteen men would order them to do as he chose. Further to this, witness TF2-048 alleged under cross examination that in Tongo Field, Liberian Kamajors and Mende speaking Kamajors were acting separately, “without any control”. Both of these testimonies go to the Defence proposition that attacks were not systematic as there was not a superior-subordinate relationship such as to warrant liability for command responsibility.
However, other evidence indicates otherwise. One witness testified to Norman’s authority, noting how Norman sidelined or thwarted proposals from the War Council, and generally excluded its members from meetings where commanders were given instructions. Another witness suggested that Norman and Kondewa continuously undermined the War Council, going so far as to suggest that they incited the Kamajors to molest members of the Council. Witness Albert Nallo, described a ‘Holy Trinity’ of leadership at Base Zero, with Norman as ‘God’, Fofana as ‘the Son’ and Kondewa as ‘the Holy Ghost’. According to Nallo the War Council was directly answerable to Norman, and all orders to the war front were given by Norman, sometimes with the knowledge and consent of Fofana and Kondewa. In such ways, the Prosecution tried to show that the three Accused persons’ control over subordinates was effective. The Defence tried to undermine this superior-subordinate relationship first by attacking the Nallo’s personal credibility, and then by suggesting that Norman’s superior status was in any event only temporary, and that it was mostly President Kabbah who was in charge.
Expert witness Colonel Richard Iron testified as a specialist in military analyses of non-conventional warfare, having written a report on command structure within the CDF. Iron observed that command was strongly effective at high levels, although it was not so effective at ground level, and was quite ineffective in certain distant areas of the country, particularly the north and east. This was because communication in these areas was mostly by motorbike or foot, there being few radios. However, he found that there was a great deal of personal loyalty to Norman, aided by the initiation ceremonies, supporting the Prosecution’s case. The Defence pointed out that Iron had only spent a total of 14 days in Sierra Leone gathering information, and further suggested that his conclusions lacked independence and were based upon those of the Prosecutor. Through these means the Defence sought to show that there was no superior-subordinate relationship such as would be necessary for command responsibility.
‘Knew or had reason to know’
The second issue in command responsibility is notice of offences. Under this doctrine, if the Prosecution cannot prove that a Defendant actually knew about the offences, it is enough to show that he was in possession of information that would put him on notice of the risk of offences, such that he should have carried out thorough investigations to identify whether offences were taking place. Whether the Accused should have had knowledge must be tested by considering what a reasonable person in the same general position as the Accused should have known.
The Court therefore had to look at capacity for communication, which varied considerably across the country. One witness testified that communication was slow between Base Zero and Tongo, a diamond-mining area in the East of Sierra Leone, far from the alleged CDF headquarters, at times taking up to five days to transmit information. This supported the Defence’s contention that the leadership at Base Zero could not reasonably have known that atrocities were being committed in certain areas. Defence counsel cross-examined witnesses as to whether they had reported incidents of violence to the authorities at the time. In many instances witnesses had made no such reports, allegedly either because there was no-one in authority to report them to, or for reasons of fear.
However, other witnesses suggested that communication with other locations was better and that the three Accused did indeed know or have reason to know of atrocities. In establishing this, the Prosecution relied heavily on ‘situation reports’ by commanders in the field, such as that compiled by witness Borbor Tucker, commander of the ‘Death Squad’, who allegedly reported back to Norman the fact that many civilians had died as human shields in Moyamba in 1997.
In one particularly gruesome testimony, a witness described how Kamajors in Gambia, Bonthe district, split open the stomachs of three pregnant women, removed the foetuses, cut off their heads, stuck these on stakes, and placed them in a field in which Norman landed with a helicopter. According to the witness, this was so that Norman would see them. The witness alleged that when Norman landed, he gave medicine to local Kamajors, who went dancing through the streets singing that they would prepare medicine from the parts of pregnant women. By showing the public nature of such behaviour, and the close proximity of Norman when it took place, the Prosecution presented its case that Norman knew or should have known about atrocities.
Failed to take necessary and reasonable action to prevent or punish
The third element of command responsibility requires that the commanders keep training programmes updated, thoroughly investigate allegations and bring charges where there is sufficient evidence.
According to several witnesses, the Kamajors had unwritten rules banning the looting, killing and raping of civilians, taught during initiation into the Kamajor society. This suggests that some action had been taken to prevent the perpetration of atrocities.
However, other evidence suggests that even if rules were in place to prevent atrocities, the
three Accused persons failed to take the necessary action to enforce such rules. Nallo testified that one of the War Council’s main purposes was to recommend punishments, but that it was up to the three Accused persons to decide which of these punishments were put into action. Often no punishment was meted out.
Expert witness Colonel Iron suggested that on some levels discipline was harshly enforced within the CDF, while at other levels it was not. At Base Zero, when it came to military strategy it seemed that there was tight discipline and were strict punishments, whereas other issues such as ‘wrongdoings’ went un-investigated and unpunished. In his opinion this culture of indiscipline was transferred to the battlefield. On the battlefield in Bo, for example, he noted the lack of discipline among combatants, who, two days after the town was captured, continued to fire weapons, endangering both civilians and combatants.
Conclusion
The Prosecution seem to have presented a strong case for command responsibility. However, it appears that the Prosecution’s ability to prove such responsibility may differ considerably across the country, due to poor communications. Additionally, they may be able to show command responsibility for certain Accused more easily than others. Moreover, the Defence have challenged the reliability of testimony presented by the Prosecution, and this may affect the weight which the judges accord to it. It remains to be seen what witnesses the Defence will now be able to bring to support their own cases.