Facts of the Case
The Appeals Judgment started with an overview of the 1991 war scenario in Sierra Leone and its progression over the years. More about this can be found in the Background Document. The defendants - Brima, Kamara and Kanu - spearheaded the AFRC coup in 1994. In December 1998, Brima took over leadership of the AFRC. Kamara became deputy commander, and Kanu was made chief of staff. The three ran the key government ministries in Sierra Leone.
The trial started in March 2005 and concluded in December 2006. On June 20, 2007, Trial Chamber II delivered its judgment.
The SCSL Prosecutor individually indicted the defendants from March to May 2003 and subsequently consolidated and amended the indictments. The final consolidated, amended indictment charged the defendants with seven counts for crimes against humanity and six counts for war crimes. The indictment also included one count for other serious violations of international humanitarian law, which included the crime of conscripting or enlisting children under the age of 15 years into armed forces and using them in hostilities. This charge marked the first time an international criminal tribunal has invoked the offence of conscripting child soldiers.
A. Joint Criminal Enterprise
On the Prosecutor's appeal regarding JCE, the Appeals Chamber reversed the Trial Chamber. According to the Appeals Chamber, the actus reus of JCE liability requires (1) a plurality of persons, (2) the existence of a common plan, design, or purpose amounting to the commission of a crime prohibited in the SCSL Statute, and (3) participation of the accused in the perpetration of one of the prohibited crimes.
The Trial Chamber held that the Prosecutor failed to fulfil the second element of this three-prong test. The Trial Chamber ruled that the objective of taking "any actions necessary to gain and exercise political power and control" over Sierra Leone as the JCE common purpose or design was not a crime under international law.
In addressing this issue, the Appeals Chamber engaged in a cursory review of the rich JCE jurisprudence of international tribunals. It found the jurisprudence clear that the criminal purpose underpinning the JCE can derive from not only its objective, but also the means used to achieve that objective. Together, the objective and the means employed constitute the common design, plan, or purpose.
The Appeals Chamber concluded that the Prosecutor properly pleaded JCE in the indictment because the acts contemplated towards the objective of "gaining and exercising political power" in Sierra Leone were crimes within the SCSL Statute.
B. Forced Marriage
The Prosecutor charged the appellants with the crime of "Other inhumane acts" (forced marriage) under Article 2(i) of the SCSL Statute. The majority of the Trial Chamber (Justice Doherty dissenting), found the count redundant and dismissed it. It adopted a restrictive approach to interpreting Article 2(i) by reasoning that the crime had to be distinguishable from the exhaustive list of sexual crimes contained in Article 2(g).
The majority of the Trial Chamber held that the Prosecutor did not demonstrate that forced marriage was a non-sexual crime, and was different from sexual slavery, and that the substantive law contained a gap that justified recognizing a separate crime of forced marriage. The Prosecutor appealed those findings.
The Appeals Chamber traced the origin of "Other inhumane acts" to Article 6(c) of the Nuremberg Charter. It noted that "Other inhumane acts" was a residual provision intended to punish acts not specifically recognized as a crime against humanity, but that in their gravity, are comparable in nature. It observed that the offence is now widely recognized and captures a broad range of sexual and non-sexual acts. The Trial Chamber had erred by holding that forced marriage did not possess elements distinguishable from sexual slavery. The Appeals Chamber located two main differences and defined forced marriage as follows:
“a situation in which the perpetrator through his words or conduct, or those of someone for whose actions he is responsible, compels a person by force, threat of force, or coercion to serve as a conjugal partner resulting in severe suffering, or physical, mental or psychological injury to the victim.”
To avoid violation of the nullum crimen sine lege (no crime without law) principle, the Prosecutor argued that customary international law recognized forced marriage as an inhumane act within the meaning of crimes against humanity in Article 2(i) of the SCSL Statute. The Appeals Chamber agreed.
It further agreed with the Prosecution that the elements of forced marriage, as a crime against humanity, had been fulfilled in this case. However, it noted that the Trial Chamber had used the evidence the Prosecution tendered to prove sexual slavery and forced marriage to instead convict the defendants for Count 9 (Outrages upon Personal Dignity). The Appeals Chamber explained that, although nothing barred it from using the same facts to enter convictions of the defendants for the crime of forced marriage, it was unnecessary to do so because “society's disapproval of the forceful abduction and use of women and girls as forced conjugal partners as part of a widespread and systematic attack against the civilian population, is adequately reflected by recognizing that such conduct is criminal and that it constitutes an "Other Inhumane Act" capable of incurring individual criminal responsibil ity in international law.”
C. Equality of Arms
Brima's first ground of appeal claimed that the Trial Chamber failed to ensure equality of arms between him and the Prosecutor, thereby leading to a miscarriage of justice. The Prosecutor countered that Brima's complaint focused on the broad doctrine of equality of arms but failed to show how the SCSL specifically violated this doctrine in this case.
The Appeals Chamber affirmed the right of each accused to adequate time and facilities under Article 17(4) of the SCSL Statute. It agreed that equality of arms is vital to ensure fair trials but concluded that Brima had failed to substantiate his claim.
D. The Meaning of "Greatest Responsibility"
The SCSL has the power to prosecute persons bearing "greatest responsibility" for serious violations of international law and Sierra Leonean law after November 30, 1996. An appeal by defendant Kanu forced the Appeals Chamber to address whether the phrase "greatest responsibility" limited the jurisdiction of the Prosecutor, or merely guided the exercise of prosecutorial discretion.
The Appeals Court held that "greatest responsibility" in Article 1(1) is a mere guideline to the exercise of prosecutorial discretion, not a threshold jurisdictional requirement. Consequently, the Appeals Chamber dismissed Kanu's appeal as a "desperate" move to escape responsibility for his crimes.
E. Mens Rea Requirement for Conscripting or Enlisting Child Soldiers
The Appeals Chamber found it "vexatious" that Kanu suggested he did not possess the mens rea for child recruitment. It cited its previous decision to affirm that using children in hostilities was a violation of Article 4(c) of the SCSL Statute. His conviction would stand.
On February 22, 2008, the Appeals Chamber of the Special Court for Sierra Leone (SCSL) issued its final judgment in Prosecutor v. Alex Tamba Brima, Brima Bazzy Kamara and Santigie Borbor Kanu (Appeals Judgment). The Appeals Judgment was the first judgment of the Appeals Chamber since the United Nations (UN) and Sierra Leone established the SCSL in January 2002. All three defendants were convicted for crimes against humanity (four counts), war crimes (six counts) and other serious violations of international humanitarian law (one count). Trial Chamber II issued its Sentencing Judgment in July 2007.
The Appeals Chamber unanimously upheld the Trial Chamber's conviction of the three former leaders of the Armed Forces Revolutionary Council (AFRC) for crimes against humanity, war crimes, and other serious violations of international humanitarian law. The Appeals Chamber also unanimously dismissed the defendants' grounds of appeal and affirmed the Trial Chamber's sentences for Brima, Kamara and Kanu.
The Trial Chamber found each defendant personally responsible and as commanders. However, the Trial Chamber did not enter convictions for Count 7 (sexual slavery or any other form of sexual violence) because it found a violation of the rule against duplicity. The Trial Chamber also dismissed Count 8, in which the Prosecutor alleged forced marriage was a customary international law crime within "Other inhumane acts," because the count did not establish any offence distinct from sexual slavery. Brima and Kamara were acquitted of Count 11, which charged "Other inhumane acts" as a crime against humanity. Significantly for other SCSL trials, the Trial Chamber rejected as fatally defective the manner in which the Prosecution pleaded Joint Criminal Enterprise (JCE) between the AFRC and the RUF. Brima and Kanu were each sentenced to 50-years imprisonment, while Kamara received 45 years.
The Appeals Judgment recognizes, for the first time, a new crime against humanity under customary international law of forced marriage as an "Other inhumane act." Unlike the Trial Chamber, which emphasized the sexual aspects of forced marriage, the Appeals Chamber underscored other aspects of forced marriage, especially its patriarchal and coercive nature, the physical and psychological toll that it exacted from its victims, and the exclusivity that assumed the "bush wives" were mere property of their rebel "husbands".
In the opinion of some jurists, the Appeals Chamber failed to leave a clear imprint on significant legal issues that resonate beyond the SCSL's courtrooms. For example, the Appeals Chamber (1) failed to assess the fair trial implications of its findings on JCE liability and forced marriage vis-Ã -vis the rights of the appellants to know the case against them; (2) summarily dismissed the argument by Brima regarding the important doctrine of equality of arms; (3) showed instrumentalist reasoning in deciding the "greatest responsibility" question; and (4) failed to flesh out the elements of the crime of conscripting, enlisting, or using children in armed conflict, especially given their importance to the first case before the ICC.
References  Background section of the Background Document, SCSL saved on the Drive.  ¶196 of the Appeals judgment  Prosecutor v. Norman, Fofana and Kondewa.  Charles C. Jalloh, Associate Legal Officer, UN International Criminal Tribunal for Rwanda writes for ASIL. Available at: https://www.asil.org/insights/volume/12/issue/10/prosecutor-v-brima-kamara-and-kanu-first-judgment-appeals-chamber Janewa Osei-Tutu is currently an Associate Legal Officer, UN International Criminal Tribunal for Rwanda, and is on leave as Legal Counsel, Canadian Department of Justice.