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The Office of the Prosecutor

An effective strategy for investigations and prosecutions is essential for the court to fulfill its mandate of bringing to justice those who bear the greatest responsibility for serious violations of international and Sierra Leonean law.  The Special Court’s investigation and indictment of alleged perpetrators from all warring factions to the conflict, particularly those associated with the government-backed CDF militias, sends a strong message that the court operates impartially and independently to prosecute serious crimes.  It reinforces the principles that the tribunal applies the law equally and operates free from political influence by the Sierra Leone government.  Civil society members report that the indictment of Sam Hinga Norman in particular, who was the leader of the Civil Defense Forces and deputy minister of defense during the period for which the court has jurisdiction and minister of the interior at the time he was indicted, enhanced local understanding of the court’s mandate, and established the court as qualitatively different from “business as usual” in Sierra Leone, where judicial matters have been characterized by pervasive corruption.75  

The Special Court has made significant strides in investigating and charging defendants with gender based crimes and child recruitment.  This is important because of the far reaching impact of these crimes on the lives of children and women which were committed by all sides.  Prosecuting child recruitment is especially significant following an historic ruling on May 31, 2004, that child recruitment constituted a war crime at least since 1996, when the court’s authority began, rejecting a challenge that it was not a crime under international law during the period for which the court has jurisdiction.76  The majority of indictees are also charged with gender based crimes, although it is unfortunate that the CDF indictees will not be prosecuted for these crimes despite the fact that the OTP has sufficient evidence to indict them on these charges.77  This is particularly significant in light of the importance of prosecuting these crimes and the limited or nonexistent opportunity to prosecute them domestically. 

Despite these accomplishments and as discussed in the introduction, Human Rights Watch believes that the existing indictments reflect an inappropriately narrow interpretation of the court’s mandate.  The current indictments neglect certain perpetrators who, while perhaps not in top positions of responsibility, were regional or mid-level commanders who are distinguished by the extent of their brutality in terrorizing the civilian population during the period for which the court has jurisdiction.  This is of particular concern as the court has indicted only thirteen suspects and there are unlikely to be more than a couple of additional indictments.  We urge the OTP to address this issue immediately.

A. Limited Interpretation of “Those Who Bear the Greatest Responsibility”

The indictments issued to date reflect an inappropriately narrow interpretation of the court’s limited mandate.  Under Article 6, the SCSL Statute provides that individuals may be found responsible for crimes under the authority of the court where they either: 1) “planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime” or 2) “knew or had reason to know that a subordinate was about to commit such acts or had done so and the superior had failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof.”  The latter of these is known as command responsibility.  However, persons who are individually responsible may only be prosecuted by the Special Court if they also “bear the greatest responsibility” for the crimes pursuant to Article 1(1) of the SCSL Statute.

The individuals currently indicted could be characterized as the highest-level commanders in the CDF, the AFRC, or the RUF who were the “kingpins” or “masterminds” of the war, or their financial backers.  These indictees allegedly “knew or had reason to know” about the commission of the crimes and may have also participated in directly committing atrocities.  However, Human Rights Watch believes that these indictments reflect an excessively narrow interpretation of the mandate to prosecute “those who bear the greatest responsibility.”  Human Rights Watch believes that the mandate should be interpreted to include other perpetrators who, while not at the top of the chain of command, were regional or mid-level commanders who stood out above similarly ranking colleagues for the exceedingly brutal nature of the crimes they committed that terrorized civilians. 

This sentiment was echoed by members of local civil society groups interviewed by Human Rights Watch, who expressed frustration that a limited number of regional or mid-level commanders known for their notorious behavior, some of whom physically carried out the crimes, have escaped indictment by the Special Court.  Three such commanders noted by civil society members include AFRC commanders Savage and Al Hadji Bayoh, and CDF commander Musa Junisa.  It will be interesting to note if the final report of the Truth and Reconciliation Commission (TRC), which was expected to be released in May, but has yet to be issued as of this writing, identifies particular individuals as bearing particular responsibility for crimes under the Special Court’s authority.

Special Court staff were resistant to interpreting the court’s mandate to prosecute regional or mid-level commanders who distinguished themselves by their brutality, citing time and resource constraints and the difficulty of identifying a small number of alleged perpetrators who would fall under this interpretation.78  Nevertheless, the research of Human Rights Watch and others suggests that there are, in fact, a very limited number of individuals who fall into this category.  We also suggest that sufficient evidence to prosecute them would have been obtained in the process of building cases against top commanders who have already been indicted. 

Prior to commencement of operations, it was generally understood that the Special Court would try no more than twenty to thirty persons.79  Nevertheless, only thirteen indictments have been issued, and as discussed in Section II, four of these indictees, who are considered to be several of the “biggest fish,” are dead, missing, or are being shielded from the court.80  Human Rights Watch was also told that no more additional indictments are expected unless Charles Taylor is taken into custody, in which case a few other individuals might be indicted.81  In light of the small number of indictees and the resources invested in this mechanism, interpreting the mandate to include regional or mid-level commanders who are notorious for the brutal crimes they allegedly committed would provide an important opportunity to ensure that the possibilities for rendering justice are maximized through prosecutions at the Special Court.  Human Rights Watch urges the OTP to review prior investigative work to assess whether several of these persons should be further investigated or indicted, and if so, to pursue prosecution of such cases.



[75] Civil society members explained that the court “gained credibility with the indictments of Sam Hinga Norman” and that “no one was ever thinking Sam Hinga Norman would ever be indicted.  We thought [he] would have [been spared by] intervention by Kabbah.”  Human Rights Watch interview with members of Sierra Leone civil society groups, Freetown, March 4, 2004.

[76] Decision on Preliminary Motion Based on Lack of Jurisdiction (Child Recruitment) (Norman) (Appeals Chamber), May 31, 2004.

[77] The Special Court rejected a motion by the OTP to amend indictments of accused associated with the CDF to include charges of gender based crimes, including forced marriage, rape, sexual slavery, and outrages against personal dignity, on the grounds that doing so would prejudice the rights of the accused to be tried expeditiously.  The prosecution filed leave to appeal, but the Trial Chamber rejected the motion holding that the required “exceptional circumstances” did not exist for leave to appeal on the basis that: 1) a dissent in the initial decision does not in itself warrant exceptional circumstances; and 2) neither the burden to prosecute to the full extent of the law nor the nature of gender based crimes can be solely determinative of whether exceptional circumstances exist.  The court also cited that delay caused by amending the indictment would unfairly prejudice the defense while rejecting the amendment would not prejudice the prosecution.  Decision on prosecution request for leave to amend the indictment (Norman, Fofana, Kondewa) (Trial Chamber), May 20, 2004; Majority Decision on the Prosecution’s Application for Leave to File an Interlocutory Appeal Against the Decision of the Prosecution’s Request for Leave to Amend the Indictment (Trial Chamber) August 2, 2004, paras. 27-29.

[78] Human Rights Watch interviews with Special Court staff, Freetown, March 3, 4, and 6, 2004.

[79] The SCSL has shied away from officially stating the number of persons it intends to indict.  However, one U.N. official estimated in 2000 that the court would have a “pool of accused, probably in the order of twenty-five or thirty” and the international community has generally understood that indictments would be within this range.  “Press Briefing by U.N. Assistant Secretary-General, Office of Legal Affairs, Ralph Zacklin,” September 25, 2000 [online], http://www.sierra-leone.org/specialcourt0900.html (retrieved August 11, 2004).  See also ICTJ, “The Special Court for Sierra Leone: The First Eighteen Months,” March 2004 [online], http://www.ictj.org/downloads/SC_SL_Case_Study_designed.pdf (retrieved August 11, 2004), p. 4; International Crisis Group, “The Special Court for Sierra Leone: Promises and Pitfalls of a ‘New Model’, Africa Briefing,” August 4, 2003 [online], http://www.crisisweb.org/home/index.cfm?id=1803&l=1 (retrieved August 11, 2004), p. 3.

[80] As described above in Section II, Foday Sankoh and Sam Bockarie are dead, Charles Taylor remains in exile in Nigeria, and Johnny Paul Koroma is either missing or dead. 

[81] Interviews with three Special Court staff members, Freetown, July 27, 2004; interviews with Special Court staff, Freetown, March 1 and 2, 2004.


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