The Appeals Chamber of the Special Court for Sierra Leone (SCSL) presided over by Honourable Justice Renate Winter and George Gelaga King, Emmanuel Ayoola, Jon Kamanda and Shireen Avis Fisher being the other Justices on Monday 26th October 2009 delivers its judgment in the appeals case of The Prosecutor against Issa Hassan Sesay, Morris Kallon aka Bilai Karim and Augustine Gbao aka Augustine Bao; First, Second and Third appellant respectively of the former Revolutionary United Front (RUF). The appellants filed a total of 96 grounds of appeal, while the Prosecution filed a total of 3. The Appeals Chamber after allowing in part submissions from both parties, upheld the Trial Chamber’s sentencing judgment of 8th April this year, which sentenced Sesay to a maximum of 52 years in prison, Kallon 40 years and Gbao 25 years with credit for the time they were detained pending trial.
Many Sierra Leoneans were maimed by rebels during the civil war
Photo Courtesy of BBC World Service
The Appellants who were alleged leaders of the former RUF were separately indicted on 18 counts of alleged commission of crimes against humanity, war crimes, and other serious violations of international humanitarian law contrary to Articles 2, 3 and 4 of the Statute of the SCSL. The charges included acts of terrorism, collective punishments, extermination, murder, violence to physical well-being of persons, rape and other sexual violence including sexual slavery, attacks against personnel involved in humanitarian assistance and conscripting or enlisting children under the age of 15 years. Following the order of the Chamber on the 28th February, 2004 for the joint trial of all three Accused persons, the Prosecutor issued a consolidated indictment on the 5th of March, 2004.
The Trial Chamber convicted Sesay and Kallon on 16 of their 18 counts indictment, whilst Gbao was convicted on 14 counts which included acts of terrorism, collective punishments, extermination, murder, violence to life, rape, outrages upon personal dignity, violence to life in particular cruel treatment, conscripting of children under 15 years, enslavement and attacks on personnel involved in humanitarian assistance. The grounds of appeal noted procedural error, error on a question of fact/or law that in some way invalidated the decision of the Trial Chamber. The Appeals Chamber discussed the grounds of appeal for both the Prosecution and the Defence. The Prosecution’s grounds of appeal touched on the issue of the duration of Joint Criminal Enterprise (JCE) that existed between members of the RUF and Armed Forces Revolutionary Council (AFRC) and the total acquittal on count 18, charging taking of hostages. The Defence grounds of appeal inter alia included common elements of alleged defects in the indictment, violation of fair trial rights and participation in a JCE. While the Appeals Chamber dismissed most of the these pleadings, it agreed in part with the Prosecution’s submission among others that communication of threat to a third party is not a requirement for the offence of hostage taking.
The President of the Court, Justice Winter read the summary of the judgment, noting that submissions made by all three appellants were either made outside the scope of appeals or were vague and unsupported. As a result the appellants failed to assist the Appeals Chamber as most of the submissions were dismissed. Addressing the submissions, she noted that the Appeals Chamber dismissed the common submission of alleged defects and fair trial rights, but however stated that the Chamber accept in part Gbao’s appeal in relation to violation of fair trial rights as no notice was given for allegedly being an ideologist and an expert instructor. The Chamber also rejected the submission that members of the RUF did not share a common purpose and found that the common purpose was to exercise political control over the territory of Sierra Leone especially the diamond mining areas. Further the Chamber found that submissions relating to the nexus between AFRC and RUF were without merit and dismissed them in their entirety. Also no merit was given to submissions made by Sesay and Kallon regarding their convictions on the attacks on United Nations Peace Keepers. However, the Appeals Chamber noted that Gbao did not posses the requisite mens rea for the attacks as he remains outside the camp where the offence was committed. They however rejected Gbao’s argument that he did not participate through a JCE in relation to his conviction for collective punishment. The Appeals Chamber noted that Gbao shared the intent to execute 66 Kamajors and rejected his argument that he did not have the power to prevent the offence. They found that “not having the power” to prevent the commission of an offence is not determinative as Gbao was engaged in the investigation of the victims and was also present during the execution.
The Appeals Chamber agrees with the Prosecution and found that communicating threat to a third party should not be a determinant for the offence of taking of hostages as set out in ground 3 of their appeals brief, but dismiss the remainder of the appeal as the Prosecution failed to establish the mens rea required for the crime. By a majority, Justice Gelaga King and Jon Kamanda dissenting, the Appeals Chamber noted that the JCE that existed between members of the AFRC and RUF ended in 1998 and there were reasonable doubts to believe otherwise. They also rejected the Prosecution’s second ground of appeal which touches on Gbao’s acquittal for the use of Child Soldiers and noted that the Prosecution failed to prove Gbao’s mode of criminal liability with respect to the said offence. Concluding on cumulative convictions and sentences, the Appeals Chamber agrees that these were impermissible as all three appellants were convicted on specific offences. The appeals Chamber thus re-write the sentences for all three appellants.
During its final deposition the Appeals Chamber also considers what it referred to as additional/or individual grounds of appeals. They allowed in part all three appellants’ grounds of appeal on enslavement, Acts of terrorism and collective punishment and reverse the verdict for the killing of a limba man. In re-writing the sentences, the Appeals Chamber imposed a global sentence of 52 years in prison for Sesay, 40 years for Kallon and 25 years for Gbao. Pursuant to Rule 119, the Appeals Chamber orders that the judgment take effect at the end of the proceedings. Justice King read the summary of their dissenting opinion which agrees with the Prosecution’s ground of appeal that JCE continued up until 1999 after the Freetown invasion. He noted instances wherein leaders of the RUF where in constant communication with leaders of AFRC through out the stated period. He noted that a reasonable trier of fact would have been open to the fact that JCE continued until February 1999. The Appeals Chamber upheld that the Trial Chamber was justified in imposing lengthy jail term to reflect each convicted person’s culpability.
The RUF trial began on 5th July 2004 after the SCSL joined the cases and consolidated the indictments in early 2004. The Prosecution concludes its case on 2nd August 2006, calling 85 witnesses including 3 experts. The Defence opens its case in March 2007 with the First accused concluding on 13th March 2008, calling 59 witnesses including Sesay and former President Kabba. The Second accused concluded on the 28th March, 2008 calling 22 witnesses. Third accused closed the case for the defence in June 2008, calling 8 witnesses. 3 witnesses were common to Sesay and Kallon and 1 common to Gbao and Sesay. Closing arguments were heard on 5th August 2008 and the Trial Chamber issued its judgment on 25th February 2009, convicting Sesay and Kallon on 16 of the 18 counts charged and Gbao on 14 of his 18 counts indictment. In determining an appropriate sentence, the Chamber listened to oral submissions from all parties on the 23rd March 2009 and delivers the Chamber’s final set of judgment on 8th April this year. The judgment sentenced Sesay to a maximum of 52 years imprisonment, Kallon 40 years and Gbao 25 years with credit for the time they were detained pending trials.