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

Court	Special Court for Sierra Leone (Appeals Chamber), Sierra Leone
Case number	SCSL-04-15-A
Decision title	Judgement
Decision date	26 October 2009
Parties	The Prosecutor Issa Hassan Sesay Morris Kallon Augustine Gbao
Other names	RUF Case
Categories	Crimes against humanity, 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.

Sesay, Kallon and Gbao were all high-ranking members of the RUF, who were convicted by Trial Chamber I for multiple counts of war crimes and crimes against humanity. Sesay received a sentence of 52 years’ imprisonment, Kallon 40 years and Gbao 25 years. On appeal, the Appeals Chamber upheld the sentences despite complaints about their length and the incorrect approach of the Trial Chamber. In particular, the Appeals Chamber made some important findings as to the law applicable for defining a common plan in a joint criminal enterprise and the requirements for the crime of hostage taking.

Procedural history

Sesay and Kallon were indicted on 7 March 2003; Gbao was indicted on 16 April 2003 for 18 counts of crimes against humanity, war crimes and other serious violations of international humanitarian law.The trial commenced on 5 July 2004; closing arguments were heard on 5 August 2008.

On 25 February 2009, Trial Chamber I delivered its verdict convicting Sesay and Kallon of 16 counts of crimes against humanity and war crimes, and Gbao of 14 counts of the same on the basis of participation in a joint criminal enterprise pursuant to Article 6(1) of the Statute of the Special Court for Sierra Leone. In addition, the Chamber also found Sesay individually liable pursuant to Article 6(1) and as a superior in the RUF forces pursuant to Article 6(3). Kallon was additionally held individually liable pursuant to Article 6(1). Gbao was additionally held liable for aiding and abetting. On 8 April 2009, Trial Chamber I delivered its verdict on sentencing awarding Sesay 52 years’ imprisonment, Kallon 40 years and Gbao 25 years.

On 28 April 2009, Sesay, Kallon, Gbao and the Prosecution filed Notices of Appeal.

Related developments

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. 4). The armed conflict in Sierra Leone commenced in March 1991 with an attack by RUF forces who gained control over parts of Sierra Leone (paras. 4-5). Hostilities continued for several years between the RUF and the Civil Defense Forces, a colledctive of pro-government militia groups (para. 6). In May 1997, members of the Sierra Leone Army succeeded in overhtrowing the government of President Kabbah and replacing it with a militaty junta, composed of RUF and Armed Forced Revolutionary Council members (para. 9). The regime was overthrown in February 1998 and President Kabbah was reinstated (para. 11) The armed conflict continued until active cesstion of hostilities in January 2002 (para. 12).

Sesay, Kallon and Gbao were all high-ranking members of the RUF.

Core legal questions

Where the objective of a joint criminal enterprise (JCE) is not a crime within the Statute of the Court, does this preclude a finding that a criminal common plan existed for the purposes of establishing a joint criminal enterprise?
Did the Trial Chamber err in law when it required, as an element of the crime of taking hostages, that the threat be communicated to a third party for the purposes of compelling the third party to behave in a certain way in order to secure the release of the hostages?
In the event that convictions are entered for murder and extermination as crimes against humanity based on the same underlying conduct, is this impermissible cumulation? In the affirmative, which conviction should stand?

Specific legal rules and provisions

Article 3(c) of the Statute of the Special Court for Sierra Leone.
Article 1(1) of the International Convention Against the Taking of Hostages.
Article 8(2)(c)(iii) of the ICC Elements of Crimes.

Court's holding and analysis

Following a previous decision of the Special Court in Brima, Kamara and Kanu, the common plan comprises both the objective and the means to achieve the objective (para. 295). The Trial Chamber’s finding that the objective was to control the territory of Sierra Leone does not preclude a finding that there existed a common criminal plan as the means contemplated to achieve this objective involved the commission of crimes within the Statute of the Court (para. 305).

Following examination of the International Criminal Court’s Statute and Elements of Crimes (para. 578), the Hostages Convention (paras. 579-580), and case law (paras. 581-584), the Appeals Chamber concluded that communication of the threat is not a requirement for the offence of taking hostages (para. 585). But, the Chamber does not convict the Accused for the offense finding that the necessary mens rea was missing (para. 609).

The Appeals Chamber followed the ICTY in Celibici in holding that multiple criminal convictions for different crimes within the Statute but based on the same underlying conduct is only permissible where the statutory provisions have materially distinct elements (paras. 1190-1191). Finding this not to be the case with murder and extermination as crimes against humanity (para. 1192), the Chamber upheld the more specific provision – extermination (para. 1193).

It upheld the sentences entered by the Trial Chamber.

Further analysis

W. Jordash and P. Van Tuyl, ‘Failure to Carry the Burden of Proof: How Joint Criminal Enterprise Lost its Way at the Special Court for Sierra Leone', Journal of International Criminal Justice, 2010, Vol. 8, pp. 591-613;
W. Jordash and S. Martin, ‘Due Process and Fair Trial Rights at the Special Court: How the Desire for Accountability Outweighed the Demands of Justice at the Special Court for Sierra Leone’, Leiden Journal of International Law, 2010, Vol. 23, pp. 585-608;
J. Easterday, ‘Obscuring Joint Criminal Enterprise Liability: The Conviction of Augustine Gbao by the Special Court for Sierra Leone’, Berkeley Journal of International Law Publicist, 2009, Vol. 3, pp. 36-46;
S. Sivakumaran, ‘War Crimes before the Special Court for Sierra Leone Child Soldiers, Hostages, Peacekeepers and Collective Punishments’, Journal of International Criminal Justice, 2010, Vol. 8, pp. 1009-1034.

Instruments cited

International Convention Against the Taking of Hostages, adopted at the UN General Assembly on 17 December 1979.
Elements of Crimes, Official Records of the Assembly of States Parties to the Rome Statute of the International Criminal Court, First session, New York, 3-10 September 2002.
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.