The Prosecutor v. Issa Hassan Sesay, Morris Kallon and Augustine Gbao

Court	Special Court for Sierra Leone (Trial Chamber I), Sierra Leone
Case number	SCSL-04-15-T
Decision title	Judgement
Decision date	25 February 2009
Parties	The Prosecutor Issa Hassan Sesay Morris Kallon Augustine Gbao
Other names	RUF Case
Categories	Crimes against humanity, War crimes
Keywords	children, common Article 3, conscription, crimes against humanity, enslavement, extermination, Murder, mutilation, other inhumane acts, outrages upon personal dignity, peacekeeping, pillage, rape, Sexual slavery, violence to person, war crimes
Links	Judgement

Summary

The armed conflict in Sierra Leone, from 1991 until 2002, opposed members of the Revolutionary United Front and Armed Forces Revolutionary Council to Civil Defense Forces, loyal to the ousted President Kabbah. The hostilities were characterised by brutality as civilians and peacekeepers were targeted. In particular, young women were forced to become ‘bush wives’ for rebels, and children were recruited not only to fight in the hostilities, but also as bodyguards, cooks, cleaners, and spies.

Trial Chamber I of the Special Court for Sierra Leone convicted Sesay, Kallon and Gbao, as high-ranking members of the RUF, for multiple counts of war crimes and crimes against humanity. In particular, this decision was the first time that an international criminal tribunal entered convictions for forced marriage as a crime against humanity separate from sexual slavery. The Chamber also defined active participation in hostilities broadly so that the crime of using children to actively participate in the hostilities would extend to more children in different roles, for which their perpetrators could be punished.

Procedural history

Sesay and Kallon were indicted on 7 March 2003, along with Foday Sankoh and Sam Bockarie; Gbao was indicted on 16 April 2003 for 18 counts of war crimes, crimes against humanity and other serious violations of international humanitarian law.

Following the deaths of Sankoh and Bockarie, their indictments were withdrawn on 8 December 2003.

The trial against Sesay, Kallon and Gbao commenced on 5 July 2004; closing arguments were heard on 5 August 2008.

Trial Chamber I delivered its verdict on 25 February 2009.

Related developments

Trial Chamber I delivered its verdict on sentencing on 8 April 2009. Sesay is sentenced to 52 years’ imprisonment, Kallon to 40 years’ imprisonment and Gbao to 25 years’ imprisonment.

On 28 April 2009, the Prosecution, Sesay, Kallon and Gbao filed Notices of Appeal alleging numerous errors of law and fact by the Trial Chamber.

On 26 October 2009, the Appeals Chamber delivered its judgment and upheld the sentences imposed by the Trial Chamber.

On 31 October 2009, Sesay, Kallon and Gbao were transferred to Mpanga Prison in Rwanda to serve their sentences. Together with Moinina Fofana and Allieu Kondewa – former leaders of the Civil Defense Forces, also convicted by the Special Court for Sierra Leone and serving prison sentences in Rwanda – Sesay, Kallon and Gbao are petitioning the Rwandan government to be transferred from Rwanda on the grounds that they have suffered poor nourishment and a lack of access to medical facilities due the conditions of their detention.

See also: ‘S. Leone War Criminals Complain about Rwandan Jail Treatment’, Radio Netherlands Worldwide, 3 November 2011.

Legally relevant facts

The Revolutionary United Front (RUF) was established in the 1980s with the aim of overthrowing the corrupt government (para. 9). Armed conflict broke out in Sierra Leone in March 1991 when the RUF forces attacked (para. 12). In response to the continued attacks by the RUF and their control over territory, pro-governmental militia groups known collectively as the Civil Defense Forces emerged (para. 16). Despite a cease-fire agreed to in the Abidjan Accord in November 1996, hostilities continued (para. 19). In May 1997, members of the Sierra Leone Army succeeded in overthrowing the government of President Kabbah and replacing it with a military junta, composed of members of the RUF and the Armed Forces Revolutionary Council (paras. 21-22). The regime was overthrown in February 1998 and President Kabbah was reinstated (para. 28). The armed conflict continued until actve cessation of hostilities in January 2002 (para. 44). The period from 1997-2002 was characterised by numerous attacks by the RUF, notably in Kono District in order to obtain control over the areas diamond resources (para. 30) and in Freetown (paras. 39-40). Civilians and peacekeeping forces were the victims of such attacks.

Core legal questions

What constitutes active participation for the purpose of the offence of using children under the age of 15 to participate in hostilities?
Were peacekeepers from the UN Mission in Sierra Leone (UNAMSIL) entitled to protection as civilians despite their use of force for the purposes of constituting the legal elements of the offense of attacking peacekeepers?

Specific legal rules and provisions

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

Court's holding and analysis

The Accused were convicted for participation in a joint criminal enterprise that entailed the commission of multiple counts of war crimes and crimes against humanity. Sesay and Kallon were additionally found liable as superiors for planning attacks directed against peacekeepers (pages 677-687). Amongst the convictions, the Accused were found guilty for the crime of forced marriage as a separate crime against humanity, distinct from rape (para. 2306) and sexual slavery (para. 2307).

The Chamber defined active participation in hostilities as including not only combat operations but also military activities linked to such operations (para. 1720). This link may be established by military activities, which have as their purpose to damage or harm the adversary (para. 1722). Thus, where children were used to commit crimes of amputation, killing, rape and enslavement against civilians, such conduct amounted to active participation (para. 1724). Children used as domestic labour is excluded (para. 1730) as well as those sent on food finding missions (para. 1743).

The Chamber further found that UNAMSIL peacekeepers were entitled to protection as civilians as they were not taking a direct part in hostilities (para. 1937). Use of force in self-defence does not constitute direct participation (para. 1925).

Further analysis

V. Oosterveld, ‘The Gender Jurisprudence of the Special Court for Sierra Leone: Progress in the Revolutionary United Front Judgments’, Cornell International Law Journal, 2011, Vol. 40, pp. 49-74;
J. Sloan, ‘Peacekeepers under Fire: Prosecuting the RUF for Attacks against the UN Assistance Mission in Sierra Leone’, Law and Practice of International Courts and Tribunals, 2010, Vol. 9, pp. 243 et seq.;
G. Waschefort, ‘Justice for Child Soldiers? The RUF Trial of the Special Court for Sierra Leone’, Journal of International Humanitarian Legal Studies, 2010, Vol. 1, pp. 189-204.

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.