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I. Introduction

On March 12 and 13, the Appeals Chamber of the Special Court for Sierra Leone will hold hearings on appeals against the convictions and sentencing of Moinina Fofana and Allieu Kondewa. These individuals were convicted on several counts of serious violations of international humanitarian law in connection with acts that they had committed, or had been responsible for, while members of the government-backed Civil Defence Forces (CDF) during Sierra Leone’s decade-long conflict. The upcoming hearings will raise a very important issue for the enforcement of international humanitarian law: whether applicable international legal standards allow factors such as political motivations and the party to the conflict for which a perpetrator fought to serve as a basis for mitigation in sentencing.²

The Trial Chamber found defendants Fofana and Kondewa guilty of extremely brutal acts of violence against civilians. This included mutilation and the targeting and deliberate killing of unarmed and innocent civilians, many of them women and children. Despite these findings, the Trial Chamber also held that the fact that the men were deemed to be acting in defense of democracy and “defeated . . . the rebellion” was a basis for mitigation in sentencing.³

Human Rights Watch believes that the relative legitimacy of political goals of the perpetrators and the successful attainment of these goals are not legitimate mitigating factors in sentencing under international law for the most serious crimes against the civilian population. All parties to armed conflict must abide by the same rules and must be subject to the same punishment when those rules are violated regardless of their political motives or ultimate victory in waging war. To hold otherwise tends to legitimize the very criminal acts against which international humanitarian law seeks to protect and conflicts with a fundamental goal of that law: to protect those persons not taking part in the hostilities. To find less worthy of punishment atrocities against civilians committed while in pursuit of the alleged “right” cause sets a dangerous precedent which risks undermining the accountability and potential deterrent role of prosecutions and thereby diminishing civilian protection. 

This memorandum details: (1) the background on the establishment of the Special Court and the judgment against Fofana and Kondewa; (2) the irrelevance of political motives under international humanitarian law, including for the purposes of mitigation in sentencing; and (3) that the consideration of political motives for mitigation conflicts with the sentencing objectives, purposes, and jurisprudence of international criminal tribunals.

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