O
SPECIAL COURT FOR SIERRA LEONE
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TRIAL CHAMBER I

DISSENTING OPINION OF JUSTICE PIERRE BOUTET
ON DECISION ON PROSECUTION MOTION FOR A RULING
ON THE ADMISSIBLITY OF EVIDENCE

1. With due respect for my Learned Brothers Justice Bankole Thompson and Justice Benjamin Mutanga Itoe I cannot agree with their analysis nor can I agree with their findings and disposition of this Motion and therefore append this Dissenting Opinion.

I. INTRODUCTION

2. This Decision is in response to the Motion of the Prosecution seeking clarification as to the effect of the Decision of Prosecution Request for Leave to Amend the Indictment (“Indictment Decision”), issued on the 20th of May, 2004 by the Trial Chamber, and considers whether evidence of sexual violence may be adduced at trial in support of existing Counts in the Consolidated Indictment against the Accused.

3. For the purposes of this Decision, I adopt the introductory portions set forth in the Majority Decision that include an outline of the background to this Motion and the submissions of the parties.

II. DISCUSSION

4. As a preliminary point, I wish to note that motions to clarify are not expressly provided for in the Rules, nor do they form part of the practice of the Special Court. The current Motion does, however, raise an issue of importance as to whether evidence of sexual violence may be adduced at trial in support of existing Counts in the Consolidated Indictment against the Accused, and I consider that it would be in the interests of a fair and expeditious trial to clarify this matter at this stage of the proceedings.

5. The Prosecution submits that this Motion for clarification is filed as a consequence of the Trial Chamber’s Majority Decision dismissing the Prosecution’s Motion to amend the Consolidated Indictment to include, inter alia, four new counts of sexual violence, namely, rape as a crime against humanity; sexual slavery and other forms of sexual violence as a crime against humanity; other inhumane acts as a crime against humanity; and outrages upon personal dignity as a violation of Common Article 3 to the Geneva Conventions and of Additional Protocol II. The Prosecution submits that they are unclear as to the effect of this Decision with respect to evidence it intends to adduce in support of Counts 3 and 4 which would however raise issues of sexual violence.

6. The direct effect of the Indictment Decision is that the Consolidated Indictment is not amended as requested by the Prosecution, and no new counts were added to the existing Indictment. This Decision has no effect on the existing form of the Consolidated Indictment or upon the adduction of evidence that is relevant and probative to the offences set forth in the Counts of the Indictment. In order, therefore, to assess whether the proposed evidence may be adduced at trial, the existing counts of the Consolidated Indictment must be considered.

7. The Prosecution submit that the proposed evidence is relevant to Counts 3 and 4 of the Indictment, namely, inhumane acts as a crime against humanity, and violence to life, health and physical or mental well-being of persons, in particular, cruel treatment, as a violation of Common Article 3 to the Geneva Conventions and of Additional Protocol II. Without needing to enumerate in full the elements of these offences, I rely upon the well-established jurisprudence of the International Tribunals that evidence of sexual violence may constitute offences of inhumane acts as a crime against humanity,[1] and violence to life, health and physical or mental well-being of persons, in particular, cruel treatment may constitute a violation of Article 3 Common to the Geneva Conventions and of Additional Protocol II.[2]

8. In the Celebici Judgement, the Trial Chamber of the ICTY held one accused criminally responsible as a superior for cruel treatment as a violation of Article 3 of the Statute, for acts of sexual violence committed by his subordinates, that involved tying a burning fuse cord around the genitals of a male victim.[3] The same accused was also convicted of inhuman treatment and cruel treatment as violations of Articles 2 and 3 of the Statute, when his subordinates forced two brothers to publicly perform fellatio on each other.[4] The Chamber held in this respect that:

Accordingly, on the basis of the foregoing evidence, the Trial Chamber finds that, on one occasion, Esad Landzo ordered Vaso Dordic and his brother, Veseljko Dordic, to remove their trousers in front of the other detainees in Hangar 6. He then forced first one brother and then the other to kneel down and take the other one’s penis into his mouth for a period of about two to three minutes. This act of fellatio was performed in full view of the other detainees in the Hangar.

The Trial Chamber finds that the act of forcing Vaso Dordic and Veseljko Dordic to perform fellatio on one another constituted, at least, a fundamental attack on their human dignity. Accordingly, the Trial Chamber finds that this act constitutes the offence of inhumane treatment under Article 2 of the Statute, and cruel treatment under Article 3 of the Statute. The Trial Chamber notes that the aforementioned act could constitute rape for which liability could have been found if pleaded in the appropriate manner.[5]

9. In the case of Akayesu, the Trial Chamber of the ICTR recognised forced nudity as a form of sexual violence that constitute inhumane acts as crimes against humanity. The Chamber stated:

[T]he Tribunal considers sexual violence, which includes rape, as any act of a sexual nature which is committed on a person under circumstances which are coercive. Sexual violence is not limited to physical invasion of the human body and may include acts which do not involve penetration or even physical contact. The incident described by Witness KK in which the Accused ordered the Interahamwe to undress a student and force her to do gymnastics naked in the public courtyard of the bureau communal, in front of a crowd, constitutes sexual violence. The Tribunal notes in this context that coercive circumstances need not be evidenced by a show of physical force. Threats, intimidation, extortion and other forms of duress which prey on fear or desperation may constitute coercion, and coercion may be inherent in certain circumstances, such as armed conflict or the military presence of Interahamwe among refugee Tutsi women at the bureau communal. Sexual violence falls within the scope of “other inhumane acts”, set forth Article 3(i) of the Tribunal’s Statute, “outrages upon personal dignity”, set forth in Article 4(e) of the Statute, and “serious bodily or mental harm,” set forth in Article 2(2)(b) of the Statute.[6]

10. Before moving to determine the issue of the admissibility of evidence of sexual violence at trial, it is necessary to consider whether Counts 3 and 4 of the Consolidated Indictment are plead with sufficient particularity to put the Accused on notice of the material facts that are alleged by the Prosecution to include acts of sexual violence. In my opinion, it is important to draw a distinction between the material facts which must be plead in an indictment, and the evidence by which those material facts will be proved, which is provided by way of pre-trial discovery and need not be plead, together with the evidence that will be elicited by witnesses at trial.[7]

11. Notably, the exercise of deciding on the admissibility of evidence is ongoing throughout the trial. The Prosecution must establish the relevance and probative value of the evidence that it seeks to bring forward. A Trial Chamber will, if necessary, intervene ex officio to exclude from the proceedings evidence that for one or more of the reasons laid out in the rules, ought not to be admitted into evidence. This would be more particularly so if the admission of such evidences were to unfairly prejudice an accused and hence violate his fundamental rights.

12. Viewed from that perspective, the issue currently before the Chamber and which must be disposed of first, however, is whether these offences have been plead with requisite specificity to put the Accused on notice. I turn now to address this issue.

General Principles of Pleading

13. In accordance with Rule 47(c) of the Rules, an Indictment, as the primary accusatory instrument, shall contain inter alia, a statement of the offences for which the Accused is charged, together with a short description of the particulars of the offence. Rule 47(c) of the Rules provides that:

The indictment shall contain, and be sufficient if it contains, the name and particulars of the suspect, a statement of each specific offence of which the named suspect is charged and a short description of the particulars of the offence. It shall be accompanied by a Prosecutor's case summary briefly setting out the allegations he proposes to prove in making his case.

14. This obligation for the Prosecution to set out the particulars of the offences charged must be interpreted in conjunction with Articles 17(2) and (4)(a) and (b) of the Statute and Rule 26bis of the Rules. These provisions state that, in the determination of any charges against the Accused, he is entitled to a fair hearing and to be informed of the nature and cause of the charges against him and to have adequate time and facilities for the preparation of his defence.

15. This Trial Chamber has in previous decisions espoused the principles for the pleading of indictments. In the case of Sesay[8] the Trial Chamber deduced seven specific principles governing the framing of Indictments and reasoned that:

Based generally on the evolving jurisprudence of sister international tribunals, and having particular regard to the object and purpose of Rule 47(C) of the Special Court Rules of Procedure and Evidence which, in its plain and ordinary meaning, does not require an unduly burdensome or exacting degree of specificity in pleading an indictment, but is logically consistent with the foregoing propositions of law, the Chamber considers it necessary to state that in framing an indictment, the degree of specificity required must necessarily depend upon such variables as (i) the nature of the allegations, (ii) the nature of the specific crimes charged, (iii) the scale or magnitude on which the acts or events allegedly took place, (iv) the circumstances under which the crimes were allegedly committed, (v) the duration of time over which the said acts or events constituting the crimes occurred, (vi) the time span between the occurrence of the events and the filing of the indictment, (vii) the totality of the circumstances surrounding the commission of the alleged crimes.[9]

16. The Trial Chamber adapted these principles to the unique features and circumstances of the Special Court and further stated that:

“In this regard, it must be emphasized that where the allegations relate to ordinary or conventional crimes within the setting of domestic or national criminality, the degree of specificity required for pleading the indictment may be much greater than it would be where the allegations relate to unconventional or extraordinary crimes for example, mass killings, mass rapes and wanton and widespread destruction of property (in the context of crimes against humanity) and grave violations of international humanitarian law within the setting of international criminality.”[10]

17. These principles have been applied subsequently by the Trial Chamber in its decisions in the case of Kanu,[11] Kondewa[12] and Norman.[13] In the Norman Decision, the Chamber considered that “the materiality of the facts to be pleaded depend on the nature of the Prosecution case and the alleged proximity of the Accused to those events”.[14]

18. A distinction has been drawn in the jurisprudence of the International Tribunals between the level of specificity required when pleading the individual responsibility of an Accused under Article 6(1) of the Statute and the superior responsibility of the Accused under Article 7(3) of the Statute. A further distinction is made between individual responsibility where it is not alleged that the Accused personally carried out the acts underlying the offences charged and individual responsibility where it is alleged that the Accused personally carried out the acts in question.[15] In the Norman case, the Chamber considered that the material facts to be pleaded in an indictment will depend on the particular form of criminal participation of the Accused. The Chamber considered the level of specificity required when pleading superior responsibility and cited the reasoning of the Trial Chamber in the Brdanin case where the Chamber stated that :

[W]hat is most material is the relationship between the accused and the others who did the acts for which he is alleged to be responsible, and the conduct of the accused by which he may be found to have known or had reason to know that the acts were about to be done, or had been done, by those others, and to have failed to take the necessary and reasonable measures to prevent such acts or to punish the persons who did them. However, so far as those acts of the other persons are concerned, although the prosecution remains under an obligation to give all the particulars which it is able to give, the relevant facts will usually be stated with less precision, and that is because the detail of those acts (by whom and against whom they are done) is often unknown – and because the acts themselves often cannot be greatly in issue.[16]

19. The question of whether the Consolidated Indictment has been plead with sufficient particularity is therefore dependent on whether it sets forth the material facts of the Prosecution case with enough detail to inform the Accused clearly of the charges so as to prepare a defence.[17]

20. Counts 3 and 4 of the Consolidated Indictment do not specifically plead any acts of sexual violence as constituting the offences of inhumane acts as a crime against humanity, nor violence to life, health and physical or mental well-being of persons, in particular, cruel treatment, as a violation of Common Article 3 to the Geneva Conventions and of Additional Protocol II. Counts 3 and 4 state as follows:

COUNTS 3-4: PHYSICAL VIOLENCE AND MENTAL SUFFERING

26. Acts of physical violence and infliction of mental harm or suffering included the following:
    1. between about 1 November 1997 and 30 April 1998, at various locations, including Tongo Field, Kenema Town, Blama, Kamboma and the surrounding areas, the CDF, largely Kamajors, intentionally inflicted serious bodily harm and serious physical suffering on an unknown number of civilians;
    2. between November 1997 and December 1999, in the towns of Tongo Field, Kenema, Bo, Koribundo and surrounding areas, and the Districts of Moyamba and Bonthe, the intentional infliction of serious mental harm and serious mental suffering on an unknown number of civilians by the actions of the CDF, largely Kamajors, including screening for “Collaborators”, unlawful killing of suspected “Collaborators”, often in plain view of friends and relatives, illegal arrest and unlawful imprisonment of “Collaborators”, the destruction of homes and other buildings, looting and threats to unlawfully kill, destroy or loot.

By their acts or omissions in relation to these events, SAMUEL HINGA NORMAN, MOININA FOFANA and ALLIEU KONDEWA, pursuant to Article 6.1. and, or alternatively, Article 6.3. of the Statute, are individually criminally responsible for the crimes alleged below:

Count 3: Inhumane Acts, a CRIME AGAINST HUMANITY, punishable under Article 2.i. of the Statute;

In addition, or in the alternative:

Count 4: Violence to life, health and physical or mental well-being of persons, in particular cruel treatment, a VIOLATION OF ARTICLE 3 COMMON TO THE GENEVA CONVENTIONS AND OF ADDITIONAL PROTOCOL II, punishable under Article 3.a. of Statute.

21. Trial Chambers of the International Tribunals have held that the failure to plead material facts and elements of offences in an Indictment render it vague and unspecific, and in many cases defective. In the case of Simic, the Accused was charged with the crime of cruel and inhumane treatment as acts of persecution. The Trial Chamber declined to consider any cruel and inhumane treatment falling outside the categories of beatings, forced labour assignments and confinement under inhumane conditions, which were specifically plead in the Indictment. The Chamber considered the wording “cruel and inhumane treatment including” too vague and unspecific to have “provided notice to the Defence of the incidents not explicitly set out in the Amended Indictment”.[18]

22. The Trial Chamber in the Kayishema[19] case considered that the Indictment did not particularise the nature of the acts relied upon by the Prosecution for the charge of “other inhumane acts” as a crime against humanity. The Chamber in that case considered that it was incumbent, therefore, upon the Prosecution “to rectify the vagueness of the counts during the presentation of evidence”.[20] The Chamber further considered that the Prosecution failed throughout the trial to adequately particularise the portions of evidence that supported the “other inhumane acts” charges. The Chamber concluded that “[t]his method of using the crime as a ‘catch-all’ – specifying which acts support the count almost as a postscript – does not enable the counts of other inhumane acts to transcend from vagueness to reasonable precision”. The Chamber held that the Defence Teams were not “properly seized of the acts that allegedly constituted the inhumane acts charges until the end of the trial”.[21]

23. In circumstances where an Indictment is vague and unspecific, Chambers of the International Tribunals have considered it necessary to inquire further as to whether such vagueness is rectified through the presentation of evidence at trial or through other means of notice from the Prosecution to the Accused.

24. The Appeals Chamber of the ICTY in the Kvocka case found after a careful review of the trial record, that the Prosecution “gave timely, clear, and consistent information to the Appellants, which detailed the factual basis of the charges against them and thereby compensated for the Indictment’s failure to give proper notice of the Prosecution’s intent to rely on joint criminal enterprise responsibility”.[22] In this case the Appeals Chamber considered that the Indictment was defective as it failed to make any specific mention of joint criminal enterprise. The Chamber noted, however, that the Prosecution Pre-Trial Brief had addressed the “common purpose responsibility” in some detail, as had the opening statement of the Prosecution,[23] were sufficient to give adequate notice to the Accused of the charges against him.

Notice of Charges Against Accused

25. I will turn now to consider, in line with the above authorities, whether the Prosecution gave timely and clear notice of the charges of sexual violence against the Accused, to compensate for lack of specificity in the Indictment, hence the failure to provide in the Indictment sufficient notice. More specifically, upon review of the Supplemental Pre-Trial Brief[24] filed by the Prosecution on the 22nd of April, 2004, with respect to Counts 3 and 4 of the Consolidated Indictment, I note that it represents that the evidence from witnesses on the Bonthe District will testify to acts of sexual violence. On this subject the Supplemental Pre-Trial Brief states that:

[...]

women and girls were subjected by the CDF to sexual assaults, harassment, and non-consensual sex, which resulted in the widespread proliferation of sexually transmitted diseases, unwanted pregnancies and severe mental suffering.

[...]

It is the prosecution theory of the case that the planning, instigation, ordering or committing of unlawful physical violence and mental harm or suffering through sexual assaults as well as other acts during the attacks in Bonthe District, or the aiding and abetting thereof, or that resulted from the common plan to use any means necessary to defeat the RUF/AFRC forces and to gain and exercise control over the territory of Sierra Leone, can be reasonably inferred from, inter alia:

1. the fact that the CDF command and control center was located in Talia, Bonthe District for a period of time and served as the residence of Samuel Hinga Norman, Moinina Fofana and Allieu Kondewa for a portion of that time.
2. the overall conduct of the CDF, not limited to any one district, which engaged in the widespread infliction of physical violence and mental harm or suffering as part of a campaign of terror and collective punishment.[25]

26. I also note that the Opening Statement of the Prosecutor David Crane on the first day of trial on the 3rd of June, 2004, made reference to acts of sexual violence as acts charged against the Accused. The Prosecutor stated:

At Tihun, one of the Kamajors wanted to be his wife – wanted her to be his wife, but she refused and, in reward, she was threatened with death. The Kamajor had her perform conjugal duties and that witness was held in sexual slavery for a whole year. The witness was unable to escape because at every point in time there was a Kamajor that stood guard to prevent her from doing so. It was at Talia the witness met her mother in captivity and it was also the same place that she met the third Accused, Allieu Kondewa, who took her into his bedroom and raped her many times into the night. That witness will be here to testify to that.[26]

27. Referring to another witness who would testify, the Prosecutor stated:

She will testify that she was raped by one Kamajor, who then forcefully took her as a wife. She spent three months at Talia with the Kamajors and during her captivity she witnessed a lot of killings of innocent civilians who were brought into town by these Kamajors.

28. The Prosecutor also referred to witnesses who would testify that:

The witnesses also testify that some girls and women were brought to Base Zero and they were forced to have sex and they were raped and they were held in sexual slavery and subjected to systematic sexual violence with Kamajor commanders like Kamoh Lahai and King Kondewa himself. This Court will hear testimonies of looting, raping and terrorising of civilians committed by this dreadful death squad.

29. Based upon the foregoing I am of the view that the Prosecution have provided the Accused with adequate notice that evidence about acts of sexual violence would be elicited at trial in support of Counts 3 and 4 of the Consolidated Indictment, through the means of the Supplementary Pre-Trial Brief, the Opening Statement, pre-trial disclosure of witness statements containing testimony on sexual violence, together with the further notice of intention through this Motion for clarification. In view of this notice, I do not believe that the failure to explicitly list acts of sexual violence in the Consolidated Indictment would materially impair the ability of any of the Accused to effectively prepare his defence on such allegations. The Accused have been on notice since before the start of trial that evidence of sexual violence would be elicited at trial as relevant and probative evidence to establish the allegations set forth in Counts 3 and 4 of the Consolidated Indictment.

30. I further consider that no undue delay will be caused, or would have been caused, by the Prosecution calling witnesses to testify on evidence relating to sexual violence. As set forth by the Appeals Chamber of the ICTR in the case of Mugiraneza,[27] the factors necessary to consider when determining whether there has been a violation of the Accused’s right to be tried without undue delay include, inter alia:

(1) The length of the delay;
(2) The complexity of the proceedings, such as the number of charges, the number of accused, the number of witnesses, the volume of evidence, the complexity of facts and law;
(3) The conduct of the parties;
(4) The conduct of the relevant authorities; and
(5) The prejudice to the accused, if any.

31. I am of the view that no delay will be occasioned in allowing the adduction of the proposed evidence and, therefore, it is unnecessary to consider further whether there may in fact be any undue delay.

32. I find that no prejudice will accrue to the Accused. As stated above, the Accused have been on notice of the charges against them, that include acts of sexual violence as constituting inhumane acts as a crime against humanity, and violence to life, health and physical or mental well-being of persons, in particular, cruel treatment, as a violation of Common Article 3 to the Geneva Conventions and of Additional Protocol II.

33. Furthermore, I do not accept the Defence argument that the evidence is more prejudicial than probative, nor that such evidence constitutes inadmissible character evidence. Evidence of acts of sexual violence are no different than evidence of any other act of violence for the purposes of constituting offences within Counts 3 and 4 of the Indictment and are not inherently prejudicial or inadmissible character evidence by virtue of their nature or characterisation as “sexual”.

34. Contrary to what has been held by the Majority, I consider that the Indictment Decision does not preclude evidence of acts of sexual violence that is relevant and probative to Counts 3 and 4 of the Consolidated Indictment from being elicited at trial and that such evidence should be allowed to be introduced by the Prosecution as part of their case against these Accused.

[1] Prosecutor v. Akayesu, Trial Judgment, 2 September 1998, paras 688, 697.
[2] Prosectutor v. Akayesu, Trial Judgment, 2 September 1998, paras 706-707, 731-734, 688; Prosecutor v. Kayishema and Ruzindana, Trial Judgment, para. 108; Prosecutor v. Musema, Trial Judgment, para. 156; Prosecutor v. Celebici, Trial Judgment, paras 551-52.
[3] Prosecutor v. Celebici, Trial Judgment, paras 1038-40.
[4] Id, para. 1066
[5] Id, paras. 1065-66.
[6] Akayesu Trial Judgment, para. 688.
[7] Blaskic Appeals Judgment, para. 210.
[8] Prosecutor v. Issa Hassan Sesay, 13 October, 2003, para. 5.
[9] Id., para 8.
[10] Id., para 9.
[11] Prosecutor v. Santigie Borbor Kanu, Decision on the Order on Defence Preliminary Motion for Defects in the Form of the Indictment, 19 November, 2003.
[12] Prosecutor v. Allieu Kondewa, Decision and Order on Defence Preliminary Motion for Defects in the Form of the Indictment, 27 November, 2003.
[13] Prosecutor v. Sam Hinga Norman, Moinina Fofana, Allieu Kondewa, Decision on the First Accused’s Motion for Service and Arraignment on the Consolidated Indictment, 29 November, 2004; Prosecutor v. Sam Hinga Norman, Moinina Fofana, Allieu Kondewa, Separate Concurring Opinion of Judge Bankole Thompson on Decision on First Accused’s Motion for Service and Arraignment on the Consolidated Indictment, 29 November, 2004.
[14] Prosecutor v. Sam Hinga Norman, Moinina Fofana, Allieu Kondewa, Decision on the First Accused’s Motion for Service and Arraignment on the Consolidated Indictment, 29 November, 2004, para. 24.
[15] Blaskic Appeals Judgment, para. 211.
[16] Id, para. 19.
[17] Kupreskic Appeal Judgment, para. 88.
[18] Simic Trial Judgment, para. 73.
[19] Kayishema Trial Judgment, 21 May 1999.
[20] Id, para. 584.
[21] Id, para. 587.
[22] Kvocka Appeals Judgment, para. 43.
[23] Id, paras 36-54.
[24] Prosecution Supplemental Pre-Trial Brief Pursuant to Order to the Prosecution to File a Supplemental Pre-Trial Brief of 1 April 2004, 22 April 2004.
[25] See paragraphs 91(b), 92, 220(b), 221 and 35(b) of the Indictment with respect to the three Accused.
[26] Trial Transcript, 3 June 2004, page 23.
[27] Prosecutor v. Mugiraneza, Decision on Prosper Mugiraneza’s Interlocutory Appeal from Trial Chamber II Decision of 2 October 2003 Denying the Motion to Dismiss the Indictment, Demand Speedy Trial and for Appropriate Relief, 27 February 2004.