Introduction
It could be recalled that the Prosecutor of the Special Court for Sierra Leone, under Article 15 of the Statute creating same, charged Chief Hinga Norman for various offences including violations of Article 3 common to the Geneva Conventions and of Additional Protocol II, and other serious violations of international humanitarian law. In refutal of the charges therefore, Chief Sam Hinga Norman now elects to be a witness in his own defence. So, in essence this article seeks primarily to examine some areas of his testimony which touch and concern the issue of command responsibility as set out in his Indictment. Suffice it to say that we have referred alternatively to Chief Hinga Norman as either “first accused” or “the witness”.
Command responsibility has evolved over the years as a cardinal legal concept. Its basic proposition is that leaders can be found criminally liable for the actions of their subordinates, provided they can be found to be personally guilty for those actions. The concept forms an integral part of international criminal law, and recognized in Article 28 of the ICC Statute, Article 7(3) of the ICTY Statute and Article 6(3) of the ICTR Statute.
It is also recognized in the Statute of the Special Court which states in its Article 6(3) 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.”
The burden of proving that each of the CDF accused persons can be held liable pursuant to command responsibility lies on the Prosecution. The Prosecution has to prove this in three key areas: “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.”
On the 26th January 2006, Sam Hinga Norman, the first accused in the ongoing trials at the Special Court was still testifying as a witness on his own behalf after the Prosecution had closed its submission late last year who had the burden of proof beyond a reasonable doubt for the alleged offences as stated in the Indictments for the CDF accused persons.
Superior / Inferior relationship
The first accused clearly indicated in his testimony that he carried express powers from the democratically elected President of Sierra Leone to coordinate the civil resistance with specific duties of restoring the elected government of the people of Sierra Leone. In pursuant to the above, Sam Hinga Norman said he was never vested with powers of selecting Commanders for the various civil militia groups which did not put him in a category of command responsibility.
Norman has so far revealed various code names for the operations which the charges identify as crimes against humanity and international law. For the purposes of any military operation, according to him, Walihun 1 was a pseudonym for a War Council Meeting, Walihun 2 to Chief Sam Hinga Norman, and Walihun 3, to welfare, training, and appointments of which various individuals automatically belonging to the War Council were supervising and not him in his position as Deputy Minister of Defence.
Quasi judicial powers
In his bid to establish the issue of him not being in any position normally ascribed as “command responsibility” he intimated the Court that he chose not to be a member of the Base Zero War Council. Since the role of the latter was advisory which he could not factually have been a part although he sat in such meetings when invited to take advice for which he had been immensely grateful. To further illustrate this point for clarity, Norman cited an incident where a commander committed various crimes in Gbaama Jaiama Bongor and a tribunal was set up headed by Chief G.W. Quee to determine his guilt or otherwise. Eventually, it was decided he was to die by hanging. Although this decision was fully endorsed by Norman later, he was advised by the War Council not to carry out such execution because of the absence of state authority for it. In the final analysis of this event, the commander was only removed from his status and his area of deployment and was not killed.
Camouflage regalia
A serious issue worthy of note was brought to the attention of the Court which concerns the rife allegations at the time that members of other factions wore the Kamajor militia regalia. According to Norman, a well-known business man in Bo, Southern Sierra Leone was the pioneer of such nefarious activities in which members of the RUF who wore the Kamajor regalia were commonly called DENBA MARA.
Military Command
The January 6, 1999 invasion of Freetown by the RUF fighters was apparently a deadly one. In the process of repelling the invaders out of Freetown, a fierce military machinery was put together by ECOMOG forces and the Kamajor militia with the latter taking military command from the former and not from the accused according to him.
National Coordinating Committee
In addition to all of the above, a letter dated 29th January, 1999 referring to the establishment of a committee for the coordination of the national militia, emanating from the office of the President of Sierra Leone, and addressed to the Deputy Minister of Defense (the first accused) was tendered in evidence and marked “Exhibit 120”. The Committee above according to Norman which was eventually set up sourced its powers from the Vice President of Sierra Leone comprising the Ministers of Finance, Agriculture, Presidential Affairs, Information, the Deputy Minister of Defense, Chief of Defense Staff, the various Resident Ministers, and the National Security Adviser. The witness confirmed the under mentioned as the responsibilities of the Committee;
To define a suitable organization structure of the Civil Defense Forces
Constant review of the manpower situation of the militia
Review means of financing various logistical requirements
Initiation of action where appropriate to recruit additional militia.
Apart from the witness’s non attendance of the first meeting scheduled on the following Saturday 11:00a.m. at the State Lodge, he confirmed that he did not even have a copy of the letter on time as he was only contacted when the other members noticed his absence from the meeting. From all the indications given to the Court by the defendant, he has sought to establish the point that the CDF was coordinated by a higher body called the National Coordinating Committee which is mentioned in the previous paragraph. This, in his words put him in a position not to liaise with the President directly but the National Coordinator of the Committee, meaning that he was subject to the Committee from which all logistical and other supports came– thus the latter being in a position of command responsibility.
Logistical Support
For the procurement of food and medicines from the national budgeting allocation, the witness identified the diagrammatically chain of flow;
Minister of Finance – Defense Office – Director of Logistics for Civil Defense –Militia.
The Deputy Minister of Defence’s role there was to oversee the budgetary allocation to the Army of Sierra Leone and the Defense Ministry. To this end, the accused person revealed the amount of food items and cash sent to the militia at a time as 5000 bags of rice and fifty one million six hundred thousand Leones, though later allocations were made to Districts for various chiefdoms. The foregoing is crucial in that it demonstrates how the Government itself had been in the position of encouraging Kamajors to pursue the war militarily.
Community Representation
Now, the communities were also put in a situation wherein they could have wielded some command responsibility in the testimony of Hinga Norman as towns, districts, chiefdoms, and sections were represented by regional representatives in the National Coordinating Committee which issued instructions to him in his capacity as Deputy Minister of Defence.
Promoting the CDF activities
As communication is vital for the success of any war, a satellite phone was given to the witness, meant for the constant facilitation of communication with the President in his position as Commander in Chief of the Armed Forces and Minister of Defence, and the international and local media all geared towards coordinating Kamajor activities in the restoration of democratic rule in Sierra Leone. This greatly enhanced the cooperation between the hunters and ECOMOG forces on the ground for arms and ammunition / logistical supplies. This bit may be considered as postulating the aspect of Government’s encouragement of Hunters’ activities which is a charge against the accused in his capacity as Coordinator of the CDF. As if this is the tip of an ice berg, a sum of $10,000 was given to the Kamajors by the now late Mrs. Patricia Kabbah of which the Chairman of the War Council i.e. the Chief of Gbaa Nongoba Bullom was aware for the encouragement and support of the Hunters.
ECOMOG Training Kamajors
The argument could be taken a bit further when the Witness revealed that ECOMOG forces introduced hunters to conventional weapons, thereby training them before exposure to same. According to him, ECOMOG forces set up hospitals and treatment centers for the wounded Kamajors, provided storage for logistics, and exercised some disciplinary measures over some Hunters situated in Bo Water Side, Kenema, Mile 91, Freetown, and Kono, all in a bid to promote activities of the militia group.
Appointments in War Council
Another important issue worthy of note is the area of appointments of certain officials in the War Council which the accused declined undertaking but for signing confirmation of same. It was succinctly revealed that the visits of the President to certain Kamajor locations to congratulate them for certain military successes, and on other occasions dispatching high level delegations in pursuit of the same objective especially in Tihun, Sogbini Chiefdom all of which the accused was not a party according to him served as indications to attest that it was the President in his capacity as Commander-in-Chief of the Armed Forces who greatly supported the existence of the Kamajors in the restoration of democratic rule .
Command and Control
All the mentioned instances highly demonstrate to the curious eye that Hinga Norman may have been debunking the claims against him as being the principal force in establishing, supporting, providing logistics, and promoting the CDF activities. Over and above, he asserted that he hadn’t de jure and de facto command and control over the atrocities and operations of the Kamajors. In summary, we can say the accused has endeavored throughout in his testimony to undermine the basis of the indictment by tendering evidence which may or may not convince the judges that he aided and abetted, instigated, or participated in crimes as a result of his holding positions of superior responsibility, command, and control over the Civil Defense Forces of Sierra Leone.
The public is once more encouraged by SLCMP to continue attending the trials at the Special Court, New England.