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

Facts

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.


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 active 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).


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.


Indictment

Issa Hassan Sesay, Morris Kallon, and Augustine Gbao of the Revolutionary United Front were arrested on March 10, 2003, following their indictment. The court found Sesay and Kallon guilty of 16 out of 18 counts. The court, Justice Boutet dissenting, found Gbao guilty of 14 out of 18 counts. The conviction of the three RUF defendants is significant, given that it was for the purpose of prosecuting the crimes committed by the RUF given that President Kabbah first requested the establishment of the Special Court.

The RUF trial, as it came to be known, began on July 5, 2004, before Trial Chamber I and concluded on June 24, 2008. Judgment was delivered on Feb. 25, 2009. The full judgment was released on March 2, 2009.


On April 8, 2009, sentencing took place. Issa Sesay was sentenced to 693 years for 16 counts of war crimes and crimes against humanity. Because these counts are served concurrently, he will spend a maximum of 52 years in prison, the highest sentence ever handed down by the Special Court for Sierra Leone.

Morris Kallon was sentenced to a total of 340 years, but will serve a maximum of 40 years.

Augustine Gbao was sentenced to 25 years. In sum, over 170 witnesses were called, in more or less equal numbers, by the prosecution (85) and the defense (59 by Sesay, 22 by Kallon, and 8 by Gbao) over 308 days of trial. The 18-count indictment charged the defendants with war crimes, crimes against humanity, and other serious violations of international humanitarian law.


Charges

  • Eight Counts of crimes against humanity, comprising the crimes of extermination, murder, rape, sexual slavery, forced marriages and physical violence as inhumane acts, and enslavement against civilians

  • Additional count of murder as a crime against humanity for killing UNAMSIL peacekeepers

  • Seven counts of war crimes, specifically serious violations of Common Article 3 and the additional Protocol II to the Geneva Conventions, comprising the crimes of murder, sexual violence and mutilations as outrages against personal dignity, and pillage

  • Two Counts of other serious violation of international humanitarian law, namely enlistment, conscription and use of children below the age of 15 years to participate actively in hostilities, and intentionally directing attacks against personnel involved in a peacekeeping mission, specifically UNAMSIL peacekeeping personnel

Verdict

The court found that the three defendants formed a Joint Criminal Enterprise, alongside members of the AFRC, whose purpose was “to take any action necessary to gain and exercise political power and control over the territory of Sierra Leone, in particular, the diamond mining areas.”


The court found that the crimes committed were intended to be within the common purpose. The court found evidence regarding involvement in the JCE and intent that crimes be committed in regard to Sesay and Kallon. Regarding Gbao, the court found that he participated in the JCE by holding a revolutionary ideology that established a criminal nexus with the crimes and “played a key and central role in pursuing the objectives of the RUF and that it was a motivating and propelling dynamic behind the commission and perpetration of the several crimes charged in the Indictment and in respect of which the Accused stand indicted.”


The court found “convincing evidence to warrant the inference that without the ideology there would have been no joint criminal enterprise.”


Justice Boutet dissented from this view and did not find that Gbao participated in the enterprise. The court held that the joint criminal enterprise came to an end in April 1998, due to deteriorating relations between the RUF and AFRC. The accused were found guilty of numerous serious crimes including killings, sexual slavery, forced marriage, mutilations, and, with the exception of Gbao, recruiting child soldiers. The three were also found guilty of the crime against humanity of terrorism. As with the AFRC Appeals judgment, the court found the three RUF defendants guilty of forced marriage as an “other inhumane act,” a crime against humanity distinct from sexual slavery, for which the defendants were also found guilty. The RUF judgment also allowed the pleading of alternative JCE categories.


The court found that Sesay and Kallon were guilty of the murder of UNAMSIL peacekeepers (Gbao was found guilty only of aiding and abetting attacks on peacekeepers). However, the court held that the prosecution failed to establish that these murders took place as part of a widespread, systematic attack against a civilian population. In relation to the specific counts, the two were therefore found guilty of murder as a war crime (count 17), rather than a crime against humanity (count 16).

The court found the three defendants not guilty of kidnapping UNAMSIL peacekeepers for lack of proof that they had communicated threats to a third party in order to compel that third party’s behavior in exchange for the peacekeepers’ safety.


Significantly and contrary to popular perception, the court also found that the RUF had not participated in the 1999 siege of Freetown. Although deceased RUF leader Sam Bockarie had made promises to send RUF troops to assist the AFRC in this siege, the distrust between the two groups led to no RUF support materializing. Numerous victims’ accounts of RUF fighters being involved in the siege were due to the civilians’ inability to distinguish between AFRC and RUF fighters.


Additional Information

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.


Conclusion

The indictment being withdrawn post the death of Sankog and Bockarie, two of the main accused defeats the very purpose of the tribunal. It sets a bad precedent in terms of absolving all the liability off the offender and essentially, not providing any justice to the victim. This further results in a circle of increased crime with no accountability and punishment.


Read the full judgment here.