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II. Background

A. Origin and mandate of the Special Court

In response to the extremely brutal conflict in Sierra Leone, which began in 1991, and to a request for assistance from the Sierra Leonean president, the Security Council asked the Secretary-General to negotiate with the Government of Sierra Leone to form the Special Court for Sierra Leone.⁴ While the president’s request focused on acts by one of the armed groups, the Revolutionary United Front,⁵ the Security Council did not distinguish between the different parties to the conflict; the council emphasized instead the general need to bring those responsible for serious violations of international humanitarian law to justice.⁶ As explained in the Secretary-General’s report on establishing the Special Court in 2000, the court’s envisioned jurisdiction did not encompass determinations as to which side was right in waging war, but rather the brutal practices by all parties to the conflict.⁷

The resulting Special Court statute confirmed the Special Court’s mandate to assess the actions of all sides, providing “the power to prosecute persons who bear the greatest responsibility for serious violations of international humanitarian law and Sierra Leonean law committed in the territory of Sierra Leone since 30 November 1996.”⁸ In accordance with the court’s mandate, the Special Court has initiated cases against accused associated with all major warring factions in the conflict.

B. The trial, convictions, and sentencing of Fofana and Kondewa

Following testimony from more than one hundred witnesses, the Trial Chamber found Moinina Fofana and Allieu Kondewa guilty of very serious and multiple violations of international humanitarian law. The Chamber found the men responsible for acts of a “barbaric,” “brutal,” and “very serious” nature and that many of the offenses were committed “on a large scale.”⁹ As indicative of the “brutality” of crimes, the Chamber cited the commission of mutilations, targeting and deliberate killing of unarmed and innocent civilians, many of them women and children, and the “gruesome murder” of women “who had sticks inserted and forced into their genitals until they came out of their mouths.”¹⁰  

In accordance with the Special Court’s statute and rules of procedure and evidence, the Trial Chamber analyzed aggravating and mitigating circumstances before rendering sentences. One of the categories of mitigating circumstances that the Trial Chamber considered was “prevailing circumstances operating at the time of the commission of the crimes, and the motive of the Accused.”¹¹ In this regard, the Trial Chamber distinguished international precedent regarding mitigating circumstances,¹² stating:

[T]here is an important factual and contextual difference and distinction that the Chamber would like to draw[;] . . . the acts of the Accused and those of the CDF/Kamajors for which they have respectively been found guilty, did not emanate from a resolve to destabilise the established Constitutional Order. Rather, and on the contrary, the CDF/Kamajors was a fighting force that was mobilised and was implicated in the conflict in Sierra Leone to support a legitimate cause which . . . was to restore the democratically elected Government of President Kabbah . . . .¹³

The Trial Chamber found that the men bore criminal responsibility for “atrocities” against “disarrayed Sierra Leoneans including children fleeing for their lives,” but stated:

[A]lthough the commission of these crimes transcends acceptable limits, albeit in defending a cause that is palpably just and defendable, such as acting in defence of constitutionality by engaging in a struggle or a fight that was geared towards restoration of the ousted democratically elected Government of President Kabbah, it certainly, in such circumstances, constitutes a mitigating circumstance in favor of the two Accused Persons.¹⁴

The Trial Chamber further found that:

[T]he crimes for which the Chamber has convicted them are grave and very serious, but what, in a sense, atones for this vice is the fact that the CDF/Kamajor fighting forces of the Accused Persons, backed and legitimised by the Internationally deployed force, the ECOMOG, defeated and prevailed over the rebellion of the AFRC that ousted the legitimate Government.¹⁵