Prosecutor v. Fofana and Kondewa

Facts of the Case

During the 1991 civil conflict in Sierra Leone, the military decided to enlist Kamajors, who not just possessed exceptional knowledge about the forest but also related to medicines available in the bushes, as vigilantes to scout the terrain. In order to increase the number of such members, the leadership made arrangements for their expansion through initiation. Fofana and Kondewa were high-ranking members of the Civil Defense Forces (CDF), a security force created by President Kabbah in an effort to re-establish his government following a coup by Revolutionary United Front (RUF) and Armed Forces Revolutionary Council (AFRC) members, who participated in the armed conflict in Sierra Leone on the side of the ousted government of President Kabbah. They were convicted by the Special Court for aiding and abetting the planning of war crimes by CDF forces, particularly murder, cruel treatment, burning of civilian property, collective punishment and, for Kondewa, enlisting child soldiers.


The Trial Chamber found the Accused not guilty of crimes against humanity on the ground that the attacks were not primarily directed against the civilian population, but against rebel RUF/AFRC forces. Instead, the Accused were found liable for aiding and abetting the perpetration of war crimes by CDF forces in the Southern and Eastern provinces of Sierra Leone, in particular, murder, cruel treatment, pillage, and collective punishment. Kondewa was also found liable for enlisting child soldiers (para. 19).

Fofana and Kondewa, alleged leaders of the rebel group Civil Defense Forces (CDF), were indicted on 26 June 2003 for crimes against humanity and war crimes. Their trial was joined with that of Samuel Hinga Norman on 28 February 2004, who later died in custody and the case against him was closed.


The trial commenced on 3 June 2004; Trial Chamber I delivered its judgement on 2 August 2007 convicting Fofana and Kondewa for aiding and abetting in the planning of the war crimes of murder, cruel treatment, pillage, and collective punishments. Kondewa was additionally convicted for enlisting child soldiers. Trial Chamber I sentenced Fofana to 6 years’ imprisonment and Kondewa to 8 years’ imprisonment on 9 October 2007. The Prosecution and Kondewa filed Notices of Appeal on 23 October 2007; there was no appeal by Fofana.


Indictment

On appeal, the Appeals Chamber found that there was sufficient evidence to convict both men for crimes against humanity. However, the convictions for collective punishment and enlistment of child soldiers were overturned. At sentencing, in order to reflect the gravity of the crimes and the new conviction for crimes against humanity, the Appeals Chamber increased the sentences: Fofana’s from 6 years to 15 years, Kondewa’s from 8 years to 20 years. The Appeals Chamber refused to take into account the political motives of Fofana and Kondewa, and particularly that they were fighting for a just cause in order to restore President Kabbah to power.


Charges

  1. Unlawfully killing or inflicting serious bodily harm and physical suffering on unknown number of civilians and capturing enemy combatants, also with particular focus on the “Black December” Operation.

  2. Killing an unknown number of Sierra Leone Police Officers on and around 15th February, 1998

  3. Norman was the National Coordinator of CDF and therefore, had or ought to have had de jure and de facto knowledge and command over activities and operations of the Kamajors

  4. Fofana and Kordewa took directions and were directly answerable to Norman and therefore, took part in the planning, operational and policy decisions of the CDF, with Fofana even acting as the leader in the absence of Norman.

  5. Use of children below 15 years in war

Verdict

The Appeals Chamber found that the Trial Chamber did not err in law in requiring that the civilian population be the primary target of widespread and systematic attacks, but did err in fact as the evidence proves that civilians were the targets of the attack (para. 306). That the purpose of the attack was the destruction of the RUF/AFRC forces is immaterial (para. 300). Following the Chamber’s establishment of the remaining legal requirements (paras. 310-320), it convicted the Accused for crimes against humanity (para. 322).


The convictions for both Accused were overturned for the offense of collective punishment due to the absence of specific intent (para. 231). Kondewa’s conviction for enlisting child soldiers was also overturned as the factual nexus between Kondewa’s conduct and the child joining the CDF was missing (paras. 141, 146). The Appeals Chamber found that the Trial Chamber erred in law when it considered the Accused’s political motives as a mitigating circumstance (para. 535). The sentences were increased to reflect the Trial Chamber’s errors and the new convictions for crimes against humanity: Fofana was convicted for 15 years; Kondewa for 20 years (para. 565).