PROSECUTOR v SAN HINGA NORMAN & ORS - DECISION ON THE PRELIMINARY DEFENCE MOTION ON THE LACK OF PERSONAL JURISDICTION FILED ON BEHALF OF ACCUSED FOFANA (SCSL-04-14-PT ) [2004] SCSL 45 (03 March 2004);
SPECIAL COURT FOR SIERRA LEONE
JOMO KENYATTA ROAD • FREETOWN • SIERRA LEONE
PHONE: +1 212 963 9915 Extension: 178 7000 or +39 0831 257000 or +232 22 295995
FAX: Extension: 178 7001 or +39 0831 257001 Extension: 174 6996 or +232 22 295996
THE TRIAL CHAMBER
Before:
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Judge Bankole Thompson, Presiding Judge
Judge Benjamin Mutanga Itoe Judge Pierre Boutet |
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Registrar:
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Robin Vincent
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Date:
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3 March 2004
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PROSECUTOR
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Against
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Sam Hinga Norman
Moinina Fofana Allieu Kondewa (Case No.SCSL-04-14-PT) |
DECISION ON THE PRELIMINARY DEFENCE MOTION ON THE LACK OF
PERSONAL JURISDICTION FILED ON BEHALF OF ACCUSED FOFANA
Office of the Prosecutor:
Luc Côté
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Defence Counsel for Samuel Hinga
Norman:
James Jenkins-Johnston
Defence Counsel for Moinina Fofana:
Michiel Pestman
Defence Counsel for Allieu Kondewa:
Charles Margai |
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THE SPECIAL COURT FOR SIERRA LEONE (“Court” or “Special Court”)
SITTING as the Trial Chamber (“Chamber”) of the Special Court, composed of Judge Bankole Thompson, Presiding Judge, Judge Benjamin Mutanga Itoe and Judge Pierre Boutet;
SEIZED of the Preliminary Defence Motion on the Lack of Personal Jurisdiction (“Motion”), filed on 17 November 2003 on behalf of Moinina Fofana (“Accused”), pursuant to Rule 72(B)(i) of the Rules of Procedure and Evidence of the Special Court (“Rules”);
CONSIDERING the Prosecution’s Response to the Motion, filed on 26 November 2003 (“Response”) by the Office of the Prosecutor (“Prosecution”);
CONSIDERING the Defence Reply thereto, filed on 8 December 2003 (“Reply”);
CONSIDERING the provisions of Rule 72 of the Rules and Article 1 of the Statute of the Special Court (“Statute”);
CONSIDERING THE SUBMISSIONS OF THE PARTIES:
A. The Defence Motion:
- In
the Motion, the Defence makes the following submissions based on the Special
Court’s lack of personal jurisdiction over the
Accused:
- Pursuant to Article 1(1) of its Statute, the Special Court has jurisdiction over those persons “who bear the greatest responsibility” for the serious violations of international law that are within the subject-matter jurisdiction of the Special Court. As Moinina Fofana does not belong in that category of persons the Special Court cannot exercise its jurisdiction over him.
- Challenges
to the personal jurisdiction of the Special Court should be dealt with in the
pre-trial stage, rather than at the trial
stage, as no court should try a person
if it does not possess the legal capability to do
so.[1] Moreover, since
the Indictment does not contain the criterion of “persons who bear the
greatest responsibility for serious
violations of international humanitarian
law”, if the Prosecution could prove that the Accused had committed some
or all of
the crimes he is accused of, the Special Court would have to find him
guilty, notwithstanding that he may not bear the greatest responsibility
and
this would not be available as a defence to
him.[2]
- The
Defence contends that the Accused does not belong in the category of
“persons who bear the greatest responsibility for serious
violations of
international humanitarian law”. According to the Defence that phrase is
unclear and can be interpreted in two
ways, but under neither interpretation can
it be said that the Accused bears “the greatest responsibility for serious
violations
of international humanitarian law”:
- Under
the interpretation that it “refers to the leader of the parties (or the
states) that had the greatest responsibility for
the (continuation of the)
conflict and the threat to the establishment and implementation of the peace
process in Sierra
Leone,”[3] it is
argued that the Accused does not belong in this category. Furthermore,
throughout the conflict the Civilian Defence Forces
(“CDF”) fought
on the side of the Government of President Kabbah and ECOMOG to preserve and
restore peace in the country.
Numerous reports expressly state that the CDF
acted in concert with ECOMOG which had support from the international
community.[4]
- Under
the interpretation that it refers to those individuals who were responsible for
the majority of crimes committed during the
conflict in Sierra Leone, neither
the Indictment or the material disclosed by the Prosecution supports the
contention that the Accused
belonged in that category. In addition, Mr
Fofana’s name does not appear in any of the public reports on the
conflict, such
as the Reports of the Secretary-General of the United Nations or
human rights
organisations.[5]
- Under
the interpretation that it refers to those individuals who were responsible for
the majority of crimes committed during the
conflict in Sierra Leone, neither
the Indictment or the material disclosed by the Prosecution supports the
contention that the Accused
belonged in that category. In addition, Mr
Fofana’s name does not appear in any of the public reports on the
conflict, such
as the Reports of the Secretary-General of the United Nations or
human rights
organisations.[5]
- Under
the interpretation that it “refers to the leader of the parties (or the
states) that had the greatest responsibility for
the (continuation of the)
conflict and the threat to the establishment and implementation of the peace
process in Sierra
Leone,”[3] it is
argued that the Accused does not belong in this category. Furthermore,
throughout the conflict the Civilian Defence Forces
(“CDF”) fought
on the side of the Government of President Kabbah and ECOMOG to preserve and
restore peace in the country.
Numerous reports expressly state that the CDF
acted in concert with ECOMOG which had support from the international
community.[4]
- The
Defence rejects what it submits is the position of the Secretary-General of the
United Nations, namely, that the words “persons
who bear the greatest
responsibility” is a guide to the Prosecutor in adopting a prosecutorial
strategy.[6] Rather, the
Defence relies on Security Counsel Resolution 1315 (2000) to submit that
“persons who bear the greatest responsibility”
defines the persons
over which the Special Court shall have personal
jurisdiction.[7] The
Defence further submits that since the Special Court was established by the
Security Council to maintain international peace
and security, the Special Court
“should give decisive weigh to the interpretation of the Security
Counsel” when interpreting
Article 1 of the
Statute.[8]
B. The Prosecution Response:
- The
Prosecution submits in its Response that the Motion should be dismissed in its
entirety.
- The
Prosecution contends that it is clear from the documents leading to the
establishment of the Special
Court[9] that it was
intended that the question of whether a person is one of the “persons who
bear the greatest responsibility”
for the purposes of Article 1(1) of the
Statute is to be decided as a matter of prosecutorial discretion. For the matter
to be decided
upon by a pre-trial factual inquiry, as the Defence suggests,
would be
“absurd”.[10]
At the pre-trial stage it is impossible to know the precise scope of the
criminal liability of any person who was involved in the
conflict in Sierra
Leone. Indeed, it is contrary to the presumption of innocence enshrined in
Article 17(3) of the Statute to determine
at the pre-trial stage that the
Accused is one of the “persons who bear the greatest
responsibility.”[11]
- Therefore,
the only sensible interpretation of the words “those who bear the greatest
responsibility” is that of Prosecutorial
discretion whereby the
Prosecution is called upon to decide, based upon all of the evidence it has
collected in the course of its
investigations, which persons it considers to
bear the greatest responsibility for the crimes within the jurisdiction of the
Special
Court and to indict those persons.
- The
Accused in this case “has in no way established that the prosecutorial
discretion was not lawfully
exercised.”[12]
The Accused has not adduced evidence to establish that the Prosecutor’s
motive was improper or based on impermissible discriminatory
motives.
Furthermore, the Prosecution submits that the Indictment was approved by the
Designated Judge who was:
SATISFIED from the material tendered by the Prosecutor that the indictment charges the suspect with crimes within the jurisdiction of the Special Court, and that the allegations in the Prosecutor’s case summary would, if proven,, amount to crimes specified and particularised in the indictment.[13]
- Referring
to the first interpretation advanced by the Defence, relating to the role of the
CDF in the conflict, the Prosecution submits
that this evidence does not
establish that the Accused could not belong to the category of persons who bear
the greatest
responsibility.[14]
- With
regards to the second interpretation advanced by the Defence, relating to the
role of the Accused, the Prosecution submits that
this argument is
“insubstantial and
unpersuasive.”[15]
It is only after the trial, when all the evidence has been adduced, that the
Trial Chamber will be in a position to determine whether
or not the Accused is
responsible for those crimes. The criminal liability cannot be determined at the
pre-trial stage by reference
to whether or not he was named in certain reports
documenting atrocities committed by the CDF, of which the Accused was a
member.
- The
Prosecution contends that the Accused does indeed fulfil the criteria of
“persons bearing the greatest responsibility”
as described in the
Report of the Secretary-General in that the Indictment clearly alleges that the
Accused was in a leadership role,
including allegations that:
- The Accused was the National Director of War of the CDF and that together with others he was one of the top leaders of the CDF;
- He acted as leader of the CDF in the absence of Chief Hinga Norman and was regarded as second in command;
- The Accused together with others exercised authority, command and control over all subordinate members of the CDF; and
- The Accused committed the specific crimes with which he is charged.
- In
conclusion, the Prosecution submits that it has not been established by the
Defence that it was in any way improper for the Prosecution
to consider the
Accused in the circumstances one of the persons “bearing the greatest
responsibility” for crimes within
the jurisdiction of the Special Court.
C. The Defence Reply:
- In
its Reply, the Defence disputes the Prosecution’s submission that the
question of whether a person is one of the persons
who bear the greatest
responsibility for the purposes of Article 1(1) of the Statute is to be decided
as a matter of “purely”
prosecutorial
discretion.[16]
- The
Defence submits that Article 1 of the Statute should be interpreted on the basis
of the customary international law principles
of treaty interpretation as
reflected in Article 31 of the Vienna Convention on the Law of Treaties
(“Vienna
Convention”).[17]
These principles give effect to the intention of the parties, to look at the
context of the term, and in light of the object and
purpose of the treaty. The
primary way to determine the intention of the parties is to look at the
“ordinary meaning to be
given to the terms of the treaty.” The
ordinary meaning, contends the Defence, is that reference to “persons who
bear
the greatest responsibility” refers to the personal jurisdiction of
the Special Court rather than to prosecutorial strategy.
That meaning is
confirmed when one takes into account the context of the term, as the other
elements of Article 1 of the Statute
refer to jurisdictional requirements. It
would be “odd”, concludes the Defence, if one element of Article 1
referred
not to jurisdiction, but to prosecutorial
discretion.[18]
- Furthermore,
the interpretation that the determination of whether a person belongs to the
“persons who bear the greatest responsibility”
is a jurisdictional
requirement is further supported when the phrase is considered in the light of
the object and purpose of the
treaty. The Defence contends that the object and
purpose of the Special Court Agreement clearly are to create a court for the
prosecution
of persons suspected of crimes connected to the armed conflict in
Sierra Leone. However, it is also clear that the Security Council
intended the
role of the Special Court to be limited to a narrow category of suspects: only
those “who bear the greatest responsibility.”
The Defence avers that
the Security Council expressly stated, in its letter to the Secretary-General of
22 December 2000, that “persons
who bear the greatest responsibility
should be seen as a jurisdictional threshold to the competence of the
Court.”[19]
- The
Defence further contends that factual questions are not a bar to jurisdictional
decisions. First, neither Article 31 nor Article
32 of the Vienna Convention or
customary international law suggests that practical problems involved in the
application of a treaty
provision are a relevant factor in the interpretation of
treaties. Second, contrary to the Prosecution’s submission, it is
not
necessary to determine “whether at the end of the trial the Accused will
be convicted on all counts with which he is
charged”[20] or
at the pre-trial stage “whether the Accused is
guilty”[21] in
order to determine personal jurisdiction; the test to be applied at this stage
is necessarily a prima facie
one.[22] Third, the
determination of jurisdictional limitations, such as personal jurisdiction,
subject-matter jurisdiction and temporal jurisdiction
can involve factual
questions. The Defence concedes that the determination of whether a person is
one of the persons who bears the
greatest responsibility can be a complex
factual question; however, the fact that a particular jurisdictional
determination is a
complex one “cannot justify an abdication of the
judicial task to determine its
jurisdiction.”[23]
Moreover, referring to jurisprudence from the International Court of Justice,
the Defence avers that it is common that international
courts in determining
their jurisdiction need to make determinations of factual matters that are also
relevant for the eventual
responsibility.[24]
AND HAVING DELIBERATED DECIDES AS FOLLOWS:
D. The Applicable Law:
- Article 1 of the Statute prescribes the competence of the Special Court. Article 1(1) provides:
The Special Court shall, except as provided in subparagraph (2), have 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, including those leaders who, in committing such crimes, have threatened the establishment of an implementation of the peace process in Sierra Leone.
- The Statute of the Special Court prescribes in Article 15 the role and function of the Prosecutor. It states in Article 15(1):
The Prosecutor shall be responsible for the investigation and prosecution of persons who bear the greatest responsibility for serious violations of international humanitarian law and crimes under Sierra Leonean law committed in the territory of Sierra Leone since 30 November 1996. The Prosecutor shall act independently as a separate organ of the Special Court. He or she shall not seek or receive instructions from any Government or from any other source.
- Articles 2-5 of the Statute stipulate the crimes over which the Special Court has subject-matter jurisdiction. Article 6 of the Statute provides for individual criminal responsibility. It states, in part:
- Relevant to the issue to be addressed herein is Article 17 of the Statute. Article 17(4)(a) provides:
(4) In the determination of any charge against the accused pursuant to the present Statute, he or she shall be entitled to the following minimum guarantees in full equality:
(a) To be informed promptly and in detail in a language which he or she understands of the nature and cause of the charge against him or her.
- Further,
pursuant to Article 14 of the Statute, Rule 47 of the Rules provides for the
review of indictments. Rule 47 states that:
(A) An indictment submitted in accordance with the following procedure shall be approved by the Designated Judge.
(B) The Prosecutor, if satisfied in the course of an investigation that a suspect has committed a crime or crimes within the jurisdiction of the Special Court, shall prepare and submit to the Registrar an indictment for approval by the aforementioned Judge.
(C) 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.
(D) The Registrar shall submit the indictment and accompanying material to the Designated Judge for review.
(E) The designated Judge shall review the indictment and the accompanying material to determine whether the indictment should be approved. The Judge shall approve the indictment if he is satisfied that:
(i) the indictment charges the suspect with a crime or crimes within the jurisdiction of the Special Court; and
(ii) that the allegations in the Prosecution's case summary would, if proven, amount to the crime or crimes as particularised in the indictment.
E. Discussion
- The
issue of the competence of the Special Court received significant attention
during discussions on the establishment of the Special
Court and the drafting of
its Statute, as discussed by the Parties. The Chamber wishes to emphasise that
the competence of the Special
Court is different from that of other
International Tribunals: both the International Criminal Tribunal for the former
Yugoslavia
(“ICTY”) and the International Criminal Tribunal for
Rwanda (“ICTR”) have “the power to prosecute persons
responsible for serious violations of international humanitarian
law”[25] rather
than “the power to prosecute persons who bear the greatest responsibility
for serious violations of international humanitarian
law and Sierra Leonean
law”. This was done on purpose. As a consequence of this particular
terminology used to describe the
Court’s competence, the first question to
be addressed is whether “persons bearing the greatest
responsibility”
is a jurisdictional requirement or merely an articulation
of prosecutorial discretion.
- The
travaux préparatoires show that the issue was discussed
between the Secretary-General and the Security Council. However, these
discussions are not fully and
completely reflected in the Parties’
submissions. In his Report on the establishment of a Special Court for Sierra
Leone,[26] the
Secretary-General at paragraph 30 opined that:
While those “most responsible” obviously include the political or military leadership, others in command authority down the chain of command may also be regarded “most responsible” judging by the severity of the crime or its massive scale. “Most responsible”, therefore, denotes both a leadership or authority position of the accused, and a sense of the gravity, seriousness or massive scale of the crime. It must be seen, however, not as a test criterion or a distinct jurisdictional threshold, but as a guidance to the Prosecutor in the adoption of a prosecution strategy and in making decisions to prosecute in individual cases.
- In
the Letter dated 22 December 2000 from the President of the Security Council
addressed to the Secretary-General, it was noted in
paragraph 1, entitled
Personal jurisdiction, that:
The members of the Security Council continue to hold the view, as expressed in resolution 1315 (2000), that the Special Court for Sierra Leone should have personal jurisdiction over persons who bear the greatest responsibility for the commission of crimes, including crimes against humanity, war crimes and other serious violations of international humanitarian law, as well as crimes under relevant Sierra Leonean law committed within the territory of Sierra Leone. The members of the Security Council believe that, by thus limiting the focus of the Special Court to those who played a leadership role, the simpler and more general formulations suggested in the appended draft will be appropriate. [27]
- In
the Letter dated 12 January 2001 from the Secretary-General addressed to the
President of the Security Council, at paragraph 2
it is stated:
Members of the Council expressed preference for the language contained in Security Council resolution 1315 (2000), extending the personal jurisdiction of the Court to “persons who bear the greatest responsibility”, thus limiting the focus of the Special Court to those who played a leadership role. However, the wording of subparagraph (a) of article 1 of the draft Statute, as proposed by the Security Council, does not mean that the personal jurisdiction is limited to the political and military leaders only. Therefore, the determination of the meaning of the term “persons who bear the greatest responsibility” in any given case falls initially to the prosecutor and ultimately to the Special Court itself. [...][28]
And in paragraph 3 it further states that:
[...] It is my understanding that, following from paragraph 2 above, the words “those leaders who .... threaten the establishment of and implementation of the peace process” do not describe an element of the crime but rather provide guidance to the prosecutor in determining his or her prosecutorial strategy. Consequently, the commission of any of the statutory crimes without necessarily threatening the establishment and implementation of the peace process would not detract from the international criminal responsibility otherwise entailed for the accused.[29]
- In
a Letter dated 31 January 2001 from the President of the Security Council
addressed to the Secretary-General, the President underscores
the importance of
that terminology as follows:
The members of the Council share your analysis of the importance and role of the phrase “persons who bear the greatest responsibility”. The members of the Council, moreover, share your view that the words beginning with “those leaders who...” are intended as guidance to the Prosecutor in determining his or her prosecutorial strategy.[30]
- The
Chamber finds that these letters “led to modifications in the text of both
the draft Agreement with the Government of Sierra
Leone and the draft Statute of
the Court. The Government of Sierra Leone was consulted on these changes and by
letter of 9 February
2001 to the Legal Counsel expressed its willingness to
accept the
texts.”[31] It
is therefore the significant finding of the Chamber that the agreed text
resulted in the adoption of the phrase “persons
who bear the greatest
responsibility” as articulated in Article 1(1) of the Special
Court’s Statute and that the Prosecutor’s
duties in this regard were
prescribed by Article 15 of the Statute and by Rule 47 of the Rules, as set out
above.
- Based
upon the foregoing findings, the Chamber therefore concludes that the issue of
personal jurisdiction is a jurisdictional requirement,
and while it does of
course guide the prosecutorial strategy, it does not exclusively articulate
prosecutorial discretion, as the
Prosecution has submitted.
- The
second question now to be addressed by the Chamber is at what stage of the
proceedings should the issue of whether an accused
fulfils the necessary
requirements of personal jurisdiction be determined.
- In
determining this issue the Chamber wishes to recall that the first procedural
step is that upon being satisfied that “a suspect
has committed a crime or
crimes within the jurisdiction of the Special Court,” the Prosecutor shall
prepare and submit an indictment
for approval by a designated
Judge.[32] The
indictment must 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.”[33]
The Prosecutor must attach “a Prosecutor’s case summary” which
briefly sets out the allegations that the Prosecutor
proposes to prove.
- The
Chamber notes that the next procedural step is that the Judge designated to
review the indictment receives the “indictment
and accompanying
material” from the Registrar. He or she shall conduct a review of this
material “to determine whether the indictment should be
approved,”[34]
in the Chamber’s view. The final procedural step is that the Designated
Judge shall approve the indictment “if”
he or she is satisfied that
certain conditions have been met, namely, that the indictment charges the
suspect with a crime or crimes
within the jurisdiction of the Special Court, and
that the allegations in the Prosecutor’s case summary would, if proven,
amount
to the crime or crimes as particularised in the
indictment.[35] The
Designated Judge may approve or dismiss each count.
- As
a matter of statutory interpretation, it is clear, therefore, from the
provisions of Rule 47 that the Designated Judge has the
discretion to accept or
reject an indictment, in whole or in part. It is the Chamber’s considered
view that this review procedure
of an indictment must take into account the
personal jurisdictional requirements, the temporal jurisdictional requirements
and the
subject-matter requirements of the Special Court, as set out in the
Statute.
- The
review of an indictment is not simply a “rubber stamp” procedure;
rather, it is a process during which the Designated
Judge carefully reviews the
contents of the proposed indictment and the Prosecutor’s case summary to
determine whether there
is sufficient information to establish reasonable
grounds to believe that the person committed the crime charged.
- The
Chamber recalls that Rule 47 of the Rules was amended at the Plenary in March
2003: Rule 47(B) had been identical to that of the
ICTR
Rules.[36] This
amendment does not mean, however, that the Chamber abandoned the general
principle of criminal law that there must be a sufficient
basis for each crime
charged.[37] The
Chamber notes that the decision on the first nine indictments issued by the
Special Court – including one which followed
the March 2003 Plenary -
explicitly found that the Designated Judge was satisfied “from the
material tendered by the Prosecution
that there is sufficient evidence to
provide reasonable grounds for believing” that the named accused
“has committed
crimes within the jurisdiction of the Court and that the
allegations would, if proven, amount to the crimes specified and particularized
in the said
indictment.”[38]
- While
the decision approving the indictment for the Accused Fofana does not contain
this language, but rather reflects the language
of the current Rule
47(B),[39] the Chamber
recalls the right enshrined in the Statute, as well as international human
rights instruments, that all accused shall
be equal before the Special
Court.[40] As has been
found by Judge Alphons Orie at the ICTY, while the screening mechanisms of
Prosecutors’ cases and indictments vary,
the purpose remains the same:
“to protect the accused against oppressive unfounded
charges.”[41]
- Accordingly,
the Designated Judge who approved the Indictment brought against Fofana
satisfied himself that sufficient information
to provide reasonable grounds for
believing that the Accused committed the crimes charged in the Indictment and
that the allegations
would, if proven, amount to the crimes specified therein.
- Furthermore,
the Designated Judge satisfied himself that the temporal and personal
jurisdictional requirements were satisfied. It
is noted that there is no
challenge to the temporal jurisdictional requirement having been properly
pleaded.
- The third issue, therefore, which must be addressed, is what test should be satisfied or standard employed at the time of the review of an indictment in determining whether the necessary personal jurisdiction requirements are fulfilled in this case.
- The
Trial Chamber finds that the standard employed to satisfy the personal
jurisdiction requirement should be no different than the
standard to satisfy the
subject-matter jurisdictional requirement. The Designated Judge must therefore
be satisfied that sufficient
information to provide reasonable grounds for
believing that the Accused is a person who bears the greatest responsibility for
serious
violations of international humanitarian law and Sierra Leonean law,
including those leaders who, in committing such crimes, have
threatened the
establishment of and implementation of the peace process in Sierra Leone.
- Again,
as a matter of statutory interpretation, the Chamber finds that Article 1 of the
Statute mandates that the Special Court shall
have jurisdiction over those
persons “who bear the greatest responsibility for serious violations of
international humanitarian
law and Sierra Leonean law,” committed in
Sierra Leone since 30 November 1996, “including those leaders who,
in committing such crimes, have threatened the establishment of and
implementation of the peace process in Sierra
Leone.”[42]
- Based
on the travaux préparatoires of the Statute of the Special Court
for Sierra Leone, it is clear that the drafters intended that the category of
persons over whom
the Special Court had personal jurisdiction was limited. In
expressing its preference for “persons who bear the greatest
responsibility”
instead of “persons most responsible”, the
Security Council directed that the fact that an individual held a leadership
role should be the primary consideration; the severity of a crime or the massive
scale of a particular crime should not be the primary
consideration.[43]
- At
the time that the indictment for Moinina Fofana and accompanying material was
reviewed by the Designated Judge, Judge Bankole Thompson,
it was found that
sufficient information existed to provide reasonable grounds for believing that
the Accused is a person who bears
the greatest responsibility for serious
violations of international humanitarian law and Sierra Leonean law, and
accordingly, approved
the indictment against him.
- The
Trial Chamber recalls the allegations in the Indictment, which include: (a) the
armed factions involved in the conflict in Sierra
Leone included the
CDF;[44] (b) Moinina
Fofana was the National Director of War of the CDF and was therefore “seen
and known as one of the top leaders
of the
CDF”;[45] (c)
Moinina Fofana acted as leader of the CDF in the absence of Samuel Hinga Norman
and was regarded as second in
command;[46] Moinina
Fofana, individually or in concert with others, exercised authority, command and
control over all subordinate members of
the
CDF;[47]and (d) the
plan, purpose or design of the CDF, as carried out by the Accused and others,
was to use any means necessary to defeat
the RUF/AFRC forces and to gain and
exercise control over the territory of Sierra
Leone.[48] The
Indictment further alleges that the Accused bears criminal responsibility under
Articles 6(1) and 6(3) of the Statute of the
Special
Court.[49]
- The Defence has argued that the Accused does not belong to the category of persons who bear the greatest responsibility for the serious violations of international law which fall within the subject-matter jurisdiction of the Special Court.[50] The Defence proposes two interpretations for the phrase “persons who bear the greatest responsibility” and argues that under neither interpretation does the Accused fall within the jurisdiction of the Special Court.[51] The Defence supports their arguments with factual assertions, namely assertions about the CDF and its role in the conflict[52] and assertions about the role played by the Accused in the conflict.[53]
- It should be emphasised that in the ultimate analysis, whether or not in actuality the Accused is one of the persons who bears the greatest responsibility for the alleged violations of international humanitarian law and Sierra Leonean law is an evidentiary matter to be determined at the trial stage. At this procedural stage, the Chamber is essentially concerned with mere allegations.
- The Accused is alleged to have held a leadership position in one of the factions involved in the armed conflict. The Defence has failed to convince the Trial Chamber that the personal jurisdiction requirements are not fulfilled in this case.
- The Trial Chamber notes that trial chambers at the ICTY have similarly declined to view matters that have jurisdictional dimensions which require a factual determination as matters to be dealt with by way of preliminary motions. In numerous cases where the defence have challenged charges of grave breaches under Article 2 or violations of the laws and customs of war under Article 3 of the Statue of the ICTY on the basis that such charges require an international armed conflict and no such armed conflict existed, Trial Chambers – while finding that such charges fall within the jurisdiction of the ICTY – have consistently held that factual submissions related to the nature of the armed conflict are to be dealt with at trial.[54]
- Finally,
the Trial Chamber would like to recall that while it is satisfied that a
sufficient basis exists for bringing an indictment
against the Accused, the
Trial Chamber has made no findings about the guilt – or innocence –
of the Accused. The Accused
continues to enjoy the presumption of innocence,
and will continue to do so until and unless a finding to the contrary is made at
the conclusion of the trial proceedings against him.
- Conclusion
- Having found that the Special Court has personal jurisdiction over the Accused, the Trial Chamber finds that the Motion brought pursuant to Rule 72(B)(i) must be rejected.
- Additionally,
as the Trial Chamber finds that there is no basis for the Accused’s
challenge to the jurisdiction of the Special
Court, the Trial Chamber finds that
no “serious issue relating to jurisdiction” is found in the Motion
which would warrant
a referral to the Appeals Chamber pursuant to Rule 72(E) of
the Rules. While the issue of personal jurisdiction itself is an
important matter, the issues put before the Chamber in the Motion were largely
evidentiary and factual in nature, and do not
warrant a referral to the Appeals
Chamber.
FOR THE FOREGOING REASONS, PURSUANT TO RULE 72(B)(i),
THE TRIAL CHAMBER HEREBY FINDS that the Motion lacks any merit and is therefore accordingly DISMISSED.
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Done at Freetown this 3rd day of March 2004
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Judge Bankole Thompson
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Judge Benjamin Mutanga Itoe
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Judge Pierre Boutet
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Presiding Judge,
Trial Chamber |
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[Seal of the Special Court for Sierra Leone]
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[1] Motion, paras
9-11.
[2] Motion,
para. 12.
[3] Motion,
para. 14.
[4]
Ibid.
[5] Motion,
para. 15.
[6] Motion,
para. 4, citing the Report of the Secretary-General on the Establishment of a
Special Court for Sierra Leone, 4 October 2000,
S/2000/915 (“Report of the
Secretary-General”).
[7] Motion, paras
4-6.
[8] Motion,
para. 6.
[9] Inter
alia the Report of the Secretary-General and the Letter dated 22 December
2000 from the President of the Security Council addressed to
the
Secretary-General, U.N. Doc. S/2000/1234, 22 December
2000.
[10]
Response, para.
7.
[11] See
Response, paras
8-10.
[12]
Response, para.
14.
[13] Response,
para. 14.
[14]
Response, para.
15.
[15] Response,
para. 16.
[16]
Reply, para. 2, referring to para. 6 of the
Response.
[17] 115
U.N.T.S 311, entered into force 27 January 1980. See Reply, paras.
5-7.
[18] Reply,
para. 6.
[19] See
Reply, paras
8-9.
[20] Citing
Response, para. 8.
[21] Citing
Response, para.
10.
[22] Response,
para. 12. See also, para.
20.
[23] Response,
para.14.
[24] See
Reply, paras
15-16.
[25] See
Article 1 of the ICTY Statue and Article 1 of the ICTR Statute. It should be
noted that both the ICTY and the ICTR Statutes
provide distinct geographical and
temporal
limitations.
[26]
S/2000/915, 4 October
2000.
[27]
S/2000/1234. The appended draft provided, in Article 1(1) of the Agreement:
“There is hereby established a Special Court for
Sierra Leone 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. (Emphasis
added).
[28]
S/2001/40.
[29]
S/2001/40.
[30]
S/2001/95.
[31]
Letter dated 12 July 2001 from the Secretary-General addressed to the President
of the Security Council,
S/2001/693.
[32]
Rule 47(B) of the Rules. See also, Rule 47 (A). Rule 47(B) of the Rules of
the ICTR and the ICTY contain slightly different wording,
namely that the
Prosecutor shall prepare an indictment “if satisfied in the course of an
investigation that there is sufficient evidence to provide reasonable grounds
for believing that a suspect has committed a crime within the
jurisdiction” of the each Tribunal. (Emphasis
added).
[33] Rule
47(C) of the
Rules.
[34] Rule
47(E) of the Rules. (Emphasis
added).
[35] See,
Rule 47(E).
[36]
The former Rule 47(B) of the Rules provided: “The Prosecutor, if satisfied
in the course of an investigation that there is
sufficient evidence to provide
reasonable grounds for believing that a suspect has committed a crime within the
jurisdiction of the
[Special Court], shall prepare and forward to the Registrar
an indictment for confirmation by a Judge, together with supporting
material.”
[37]
See, e.g., Article 65(5) and (7) of the Statute of the International Criminal
Court (“sufficient evidence to establish substantial
grounds to believe
that the person committed the crime charged”); Article 5(1)(c) of the
European Convention for the Protection
of Human Rights and Fundamental Freedoms
(“ECHR”) (“the lawful arrest or detention of a person effected
for the
purpose of bringing him before the competent legal authority of
reasonable suspicion of having committed and offence or when it is
reasonably
considered necessary to prevent his committing an offence or fleeing after
having done so”). See also, The Code
for Crown Prosecutors, Article 5(1)
(“enough evidence to provide a ‘realistic prospect for
conviction’ against
each defendant on each charge”) and Article 5(2)
(“a realistic prospect for conviction ...means that a jury or bench
of
magistrates, properly directed in accordance with the law, is more likely than
not to convict the defendant of the charge
alleged”).
[38]
See, e.g., The Prosecutor against Charles Taylor, Case No. SCSL-03-01-I,
Decision Approving the Indictment and Order for Non-Disclosure, 7 March 2003;
The Prosecutor against Augustine Gbao, Case No. SCSL-03-09-I, Decision
Approving the Indictment, 16 April 2003.
[39] The
Prosecutor against Moinina Fofana, Case No. SCSL-03-11-I, Decision Approving
the Indictment and Order for the Continued Detention of the Accused, 26 June
2003, page
2: “Being Satisfied from the material tendered by the
Prosecutor that the indictment charges the suspect with crimes against
the
jurisdiction of the Special Court, and that the allegations in the
Prosecutor’s case summary would, if proven, amount to
crimes as specified
and particularized in the indictment”.
[40] See, Article
17(1) of the Statute of the Special Court. See also, International Covenant on
Civil and Political Rights, Article
14(1); ECHR, Article
14.
[41]
Prosecutor v. Ratko Mladić, Case No. IT-95-5/18-I, Order Granting
Leave to File an Amended Indictment and Confirming the Amended Indictment, 8
November 2002,
para. 22. See also, paras
23-26.
[42]
Emphasis
Added.
[43] See,
para. 23
supra.
[44]
Indictment, para.
3.
[45] Indictment,
para. 12.
[46]
Indictment, para.
12.
[47]
Indictment, para.
13.
[48]
Indictment, para.
14.
[49]
Indictment, paras 15 and
16.
[50] Motion,
para. 2.
[51] See
supra, para.
3.
[52] Motion,
para. 14.
[53]
Motion, para.
15.
[54] See, e.g.,
Prosecutor v. Blagoje Simić et al., Case No. IT-95-9-PT, Decision on
the Pre-Trial Motion by the Prosecution Requesting the Trial Chamber to Take
Judicial Notice of the
International Character of the Conflict in
Bosnia-Herzegovina, 25 March 1999; Prosecutor v. Tihomir Blaskić,
Case No. IT-95-15, Decision Rejecting a Motion of the Defence to Dismiss Counts
4, 7, 10, 14, 16 and 18 based on the Failure to
Adequately Plead the Existence
of an International Armed Conflict, 4 April 1997, para. 7; and Prosecutor v.
Momčilo Krajišnik, Case No. IT-00-39 & 40-PT, Decision
on Motion Challenging Jurisdiction – with Reasons, 22 September 2000,
para. 25.