TRIAL CHAMBER I

Public Document

DECISION ON MOTIONS BY MOININA FOFANA AND SAM HINGA NORMAN FOR THE ISSUANCE OF A SUBPOENA AD TESTIFICANDUM TO H.E. ALHAJI DR. AHMAD TEJAN KABBAH, PRESIDENT OF THE REPUBLIC OF SIERRA LEONE

TRIAL CHAMBER I (“The Chamber”) of the Special Court for Sierra Leone (“Special Court”) composed of Hon. Justice Pierre Boutet, Presiding Judge, Hon. Justice Bankole Thompson and Hon. Justice Benjamin Mutanga Itoe;

SEIZED OF the “Fofana Motion for Issuance of a Subpoena Ad Testificandum to President Ahmed Tejan Kabbah”, filed by Court Appointed Counsel for the Second Accused, Moinina Fofana, (“Counsel for Fofana”) on the 15th of December, 2005 (“Fofana Motion”);

SEIZED OF the “Norman Motion for Issuance of a Subpoena Ad Testificandum to H.E. Alhaji Dr. Ahmad Tejan Kabbah, President of the Republic of Sierra Leone”, filed by Court Appointed Counsel for the First Accused, Sam Hinga Norman, (“Counsel for Norman”) on the 16th of December, 2005 (“Norman Motion”);

NOTING the “Affirmation of Service with Respect to Fofana and Norman Motions for Issuance of a Subpoena Ad Testificandum to President Ahmed Tejan Kabbah”, filed by Counsel for Fofana on the 16th of January, 2006, wherein they stated that, on the 13th of January, 2006, copies of the Fofana Motion and the Norman Motion (collectively, “Motions”) were served on Mr. Soulay Daramy, Chief of Protocol of H.E. Alhaji Dr. Ahmad Tejan Kabbah, the President of the Republic of Sierra Leone (“President Kabbah”);

NOTING the “Prosecution Response to Fofana Motion for Issuance of a Subpoena Ad Testificandum to President Ahmed Tejan Kabbah”, and the “Prosecution Response to Norman Motion for Issuance of A Subpoena Ad Testificandum to President Ahmed Tejan Kabbah”, filed on the 13th of January, 2006 (“Prosecution Response to Fofana Motion” and “Prosecution Response to Norman Motion”, respectively);

NOTING the “First Accused Reply to the Prosecution Response to Norman Motion for Issuance of a Subpoena Ad Testificandum to President Ahmad Tejan Kabbah”, filed by Counsel for Norman on the 16th of January, 2006 (“Norman Reply to Prosecution”);

NOTING the “Reply to Prosecution Response to Fofana Motion for Issuance of a Subpoena Ad Testificandum to President Ahmed Tejan Kabbah”, filed by Counsel for Fofana on the 18th of January, 2006 (“Fofana Reply to Prosecution”);

NOTING that, on the 17th of January, 2006, Mr. Frederick M. Carew, Attorney-General and Minister of Justice of the Republic of Sierra Leone (“Attorney-General”), acknowledged the service of the Motions on President Kabbah, requested copies of the Consolidated Indictment and of the Rules of Procedure and Evidence of the Special Court (“Rules”) and expressed his intention “to apply for such a subpoena, if and when issued, to be set aside on constitutional and other legal basis”;[1]

NOTING that, on the 18th of January, 2006, the Attorney-General acknowledged receipt of the documents he had requested,[2] recalled his intention “to apply to the Trial Chamber if and when a subpoena is issued” and asked to be informed “of the date of the hearing for the determination by the Trial Chamber of this matter”;[3]

NOTING The Chamber’s “Order on Motion for Issuance of a Subpoena Ad Testificandum to H.E. Dr. Ahmad Tejan Kabbah, the President of the Republic of Sierra Leone and Leave to Intervene”, issued on the 19th of January, 2006, whereby The Chamber, in the interests of justice, granted the Attorney-General leave to intervene in the proceedings by filing with the Court a written response to the Motions and by presenting arguments, if any, at a hearing to be held by The Chamber;

NOTING “The Response of the Attorney-General and Minister of Justice to the Application Made by Moinina Fofana for the Issuance of Subpoena Ad Testificandum to President Alhaji Dr. Ahmad Tejan Kabbah Pursuant to Rule 54, Rules of Procedure and Evidence of the Special Court for Sierra Leone Pursuant to the Order of the Special Court Dated 19 January 2006” and the “The Response of the Attorney-General and Minister of Justice to the Application Made by Samuel Hinga Norman for the Issuance of Subpoena Ad Testificandum to President Alhaji Dr. Ahmad Tejan Kabbah Pursuant to Rule 54, Rules of Procedure and Evidence of the Special Court for Sierra Leone Pursuant to the Order of the Special Court of Dated 19 January 2006”, filed on the 23rd of January, 2006 (“Attorney-General Response to Fofana Motion” and “Attorney-General Response to Norman Motion”, respectively);[4]

NOTING the “Fofana Reply to the Response of the Attorney General to the Fofana Motion for Issuance of a Subpoena Ad Testificandum to President Ahmad Tejan Kabbah”, filed on the 26th of January, 2006 (“Fofana Reply to Attorney-General”);

NOTING the “Norman Reply to the Response of the Attorney General to the Norman Motion for Issuance of a Subpoena Ad Testificandum to President Ahmad Tejan Kabbah”, filed on the 30th of January, 2006 (“Norman Reply to Attorney-General”);

NOTING the oral submissions presented at the hearing of the 14th of February, 2006;[5]

PURSUANT TO Rule 54;

ISSUES THE FOLLOWING DECISION:

I. SUBMISSIONS

A. Introduction

1. Two preliminary matters need to be disposed of before considering the merit of these submissions. The first one is whether the Prosecution has standing to object to a request by the Defence for the issuance of a subpoena to a witness. It is The Chamber’s understanding that this issue has now been rendered moot by the fact that, in the course of the oral hearing, Counsel for Fofana did not reiterate their objection to the Prosecution’s intervention in these proceedings, whilst Counsel for Norman explicitly withdrew theirs.[6]
2. As to the other matter, a considerable number of written submissions have been filed concerning the issue currently before The Chamber. Parties to the current proceedings have opted to associate themselves with the written submissions filed by others.[7] In the result there is a degree of repetition and overlap in the parties’ submissions and in some instances some confusion as to the applicability of such adopted submissions. The Chamber has sought to avoid that repetition when setting out the parties’ submissions and has attempted to show the existence of overlap where it has considered it relevant.

B. Relief requested

3. In their Motions, Counsel for Norman and Counsel for Fofana (collectively, “Applicants”) requested a Judge of The Chamber or The Chamber to issue, pursuant to Rule 54, a subpoena to President Kabbah to compel him to appear as a witness in the CDF trial on behalf of the First and Second Accused, respectively, and to meet with the Applicants in advance of his proposed testimony (“Application”).[8]
4. The Prosecution and the Attorney-General submitted that the Application should be denied and the Motions dismissed.[9]

C. Standard for the issuance of a subpoena pursuant to Rule 54

5. According to Counsel for Fofana, the general test for relief under Rule 54 is twofold:

First, the proposed injunction must be necessary in order for the requesting party to obtain the material sought. Further, the requested material must be relevant to the proceedings.[10] Accordingly, with respect to subpoenas directed at individuals, the Defence must demonstrate that it has made “reasonable attempts to obtain the voluntary cooperation of the parties involved and has been unsuccessful”, and the Defence “must have a reasonable belief that the prospective witness can materially assist in the preparation of its case.”[11]

6. Counsel for Norman submitted that the criteria of relevance and materiality of the evidence to be given by the prospective witness in relation to the indictment and of “necessity for the conduct of the trial” envisaged in Rule 54, were sufficient guidelines for The Chamber to adopt its own standard for issuing a subpoena.[12] This notwithstanding, Counsel for Norman submitted that any additional conditions, such as the “legitimate forensic purpose” and “last resort” requirements, were not inconsistent with these criteria.[13]
7. The Prosecution relied on the standard which in its submission was to be found in the jurisprudence of the ICTY and maintained that, in assessing an application for a subpoena, The Chamber should consider:

(1) whether the information in the possession of the prospective witness is necessary for the resolution of specific issues in the trial (the ‘legitimate forensic purpose’ requirement),[14] i.e. that this evidence must be of substantial or considerable assistance to the Accused in relation to a clearly identified issue that is relevant to the trial;[15] and

(2) whether the information in the possession of the prospective witness is obtainable by other means (the ‘last resort’ requirement),[16] i.e. whether the information sought is obtainable through other means and whether it is necessary to ensure that the trial is informed and fair.[17]

8. The Attorney-General did not explicitly set out what he considered to be the applicable legal standard. Instead he adopted the Prosecution’s submissions.[18]
9. Counsel for Fofana replied that the standard advanced by the Prosecution and based on ICTY jurisprudence should be adapted in order to reflect the “practical reality of the present situation and the unique features of [the Statute of the Special Court] and developed practice”, specifically, “to account for the fact that the Defence has been unable to interview the proposed witness, in a substantive manner, with respect to the particular issues on which evidence is sought to be elicited; and further to accommodate both the concept of ‘greatest responsibility’ codified in Article 1(1) of the Statute and this Chamber’s liberal approach to admissibility as developed over the course of these proceedings”.[19]

D. Whether this standard is met in the instant case

(i) The “purpose” requirement

10. Counsel for Fofana submitted that President Kabbah is in possession of information specifically relevant to the Second Accused’s alleged liability pursuant to Articles 1(1), 6(1) and 6(3) of the Statute of the Special Court.[20] According to them, “at times relevant to the [Consolidated Indictment], [President] Kabbah was commanding, materially supporting, and communicating with various members of the alleged CDF leadership, both from his exile in Conakry and later from his presidential offices in Freetown”, and thus is in a position to provide evidence on the activities of the CDF.[21] In their submission he can provide evidence on the existence and extent of the Second Accused’s participation in a common plan, design or purpose for the determination of his responsibility pursuant to participation in a joint criminal enterprise.[22] Counsel for Fofana also submitted that President Kabbah “is in a position to give evidence regarding the relative culpability of the three accused persons” for the purposes of determining who bears the “greatest responsibility”.[23] Further, they claimed that he can provide evidence concerning command responsibility,[24] such as evidence on the CDF command structure, the duties associated with the position of the “Director of War”, how orders passed through the chain of command and how certain members of the alleged CDF leadership interacted with one another.[25] Finally, Counsel for Fofana submitted that President Kabbah “was specifically mentioned by at least seven Prosecution witnesses, some indicating that he may have played a role within the alleged CDF command structure”, and thus that the relevance of what President Kabbah may have to say in this respect is self-evident,[26] and that the current state of the evidence “is that the CDF personnel travelled to Guinea and periodically held consultation meeting with [President Kabbah]”.[27]
11. The Prosecution responded that the Fofana Motion provides no evidence that the information sought from President Kabbah affects any issue relevant to the determination of the guilt or innocence of the Second Accused in relation to any of the charges in the Consolidated Indictment, or that it affects any evidence given in relation to such charges. According to the Prosecution, “in the absence of any such evidence, the mere expression of desire in the Fofana Motion to question President Kabbah does not constitute a legitimate forensic purpose for the purpose of subpoenas”.[28] Referring to the testimony of the seven witnesses invoked by Counsel for Fofana, the Prosecution submitted that the mere fact that President Kabbah’s name was mentioned cannot itself be a basis for the issuance of a subpoena, particularly since this evidence is not really the subject of dispute by the Prosecution.[29] The Prosecution also submitted that, even if it were assumed for the sake of argument that the Fofana Motion did satisfy the requirements for issuing a subpoena, this would still not mean that the Norman Motion satisfied these requirements, for the latter fails to identify how any evidence that President Kabbah could give could materially assist the First Accused, as opposed to the Second Accused.[30]
12. Counsel for Norman replied to the Prosecution that the Applicants have made a proper showing to satisfy the requirements for the issuance of a subpoena.[31] Counsel for Norman submitted that “the relevance of the information in question, is not to the evidence or the defence of the accused, but to the case against him.”[32] According to Counsel for Norman, the evidence of President Kabbah would materially assist the First Accused in rebutting paragraphs 13, 14, 15, 18, 20 and 21 of the Consolidated Indictment, specifically:[33]

(i) President Kabbah, as Minister of Defence, appointed the First Accused as Coordinator of the CDF; the latter was answerable to him and they were in constant contact for input on how the war should be conducted, while President Kabbah helped raised money to pay for it;[34]

(ii) President Kabbah knows what happened to the people of his country and at the hands of whom, and it was not at the hands of the CDF.[35]

13. To the Motions, the Attorney-General responded that, at the material time, “because of the activities of the RUF, CDF/AFRC [President Kabbah was] outside of the jurisdiction in a neighbouring country” and, therefore, whatever evidence President Kabbah may give if a subpoena were to be issued to him, “it is unlikely that such evidence would have a direct and important place in the determination of the issues before the Trial Chamber”.[36] The Attorney-General further submitted that the issues outlined in the Motions “have no material effect and relevance in proving the [A]ccused’s innocence or guilt in respect of the charges contained in the indictment against him”.[37]
14. To this, Counsel for Fofana replied that the Attorney-General is in error to contend that President Kabbah’s exile in Guinea is relevant to the question of whether or not he is in possession of information that would materially assist the defence of the Second Accused.[38] Counsel for Norman for their part replied that the Attorney-General’s submissions on the absence of relevance and materiality of President Kabbah’s evidence contradict the latter’s own previous assertions as well as the prior testimony of witnesses in this case.[39]

(ii) The “necessity” requirement

15. Counsel for Fofana submitted that they have made reasonable attempts to obtain President Kabbah’s voluntary cooperation but have been unsuccessful.[40] According to them, they met with President Kabbah on the 15th of November, 2005. On that date, President Kabbah refused their request for him to testify.[41] Subsequently, on the 18th of November, 2005, Counsel for Fofana wrote to President Kabbah urging him to reconsider his previous decision and to appear as a witness on behalf of the Second Accused. Counsel for Fofana allege that, to date, they have received no response to this correspondence.[42] For this reason, they argue, a subpoena ad testificandum is necessary to secure President Kabbah’s participation in the proceedings.[43] Since he has “already declined to cooperate with Counsel for Fofana on a voluntary basis after numerous attempts”, they submit that the issuance of a subpoena to him is the last resort.[44] Appended to the Fofana Motion is a letter from Counsel for Norman dated the 23rd of November, 2005 addressed to President Kabbah requesting him to give oral evidence on behalf of the First Accused. According to the Fofana Motion, Counsel for Norman have received no response to it.[45]
16. The Prosecution responded that the onus is on the Applicants to establish that the last resort requirement is met, and that in the absence of any clear indication in the Motions as to the specific issues on which the testimony of President Kabbah is sought, it is impossible for The Chamber: (a) to assess whether or not evidence of those issues would be obtainable from another source; (b) to assess whether or not his testimony is necessary to ensure that the trial is informed and fair; and (c) to balance the interests of the litigants against the overarching interests of justice and other public considerations.[46]
17. On the “necessity” requirement, Counsel for Fofana replied to the Prosecution that President Kabbah is in the best, perhaps only, position to comment on the aforementioned issues: “[n]o other means of obtaining the information would be as convenient as a practical matter, as credible from an evidentiary standpoint, or as transparent from a public policy point of view”.[47] Furthermore, Counsel for Fofana stated that they are interested in President Kabbah’s personal observations, so that the information he may provide cannot be obtained by other means.[48] Counsel for Norman submitted that valuable material evidence in respect of the issues already outlined “is in the bosom and breast” of President Kabbah.[49]
18. The Attorney-General responded that the requested subpoena is “irrelevant, fishing, speculative and oppressive” and “is not bona fide but meant to embarrass [President Kabbah] and cause mischief and [that it is] therefore an abuse of the process of the Trial Chamber [...]”.[50]
19. To this, Counsel for Fofana replied that the Application is based on available information and diligent investigation so that it is in no way a speculative request, even if, as with any witness who has refused to submit to questioning, there is some degree of uncertainty as to what, exactly, the object of such request will be able to address.[51] Furthermore, in the Applicants’ submission, the Attorney-General has failed to make a specific showing as to how the issuance of the requested subpoena would oppress President Kabbah in any discernible manner, and he has also failed to substantiate the allegation that the Application is an abuse of process.[52]

E. Whether President Kabbah can be the object of a subpoena by The Chamber

20. Counsel for Fofana submitted that President Kabbah is compelled to abide by the terms of the Agreement between the United Nations and the Government of Sierra Leone on the Establishment of a Special Court and thus to cooperate with the Special Court at all stages of its proceedings.[53] They submitted that President Kabbah is compellable to appear as a witness before The Chamber because the latter is empowered, by virtue of section 20 of the Ratification Act and of Rule 8, to enforce its orders through the same mechanism available to its municipal counterparts, namely by directing the Inspector General of the Sierra Leone Police to issue a warrant for the arrest of an individual who fails to comply with The Chamber’s order pursuant to Rule 54.[54] According to Counsel for Fofana, if President Kabbah ignored an order from The Chamber, he would be in contempt of an order of the Special Court. The remedy would then lie in Rule 8(B), whereby The Chamber may refer the matter to the President of the Special Court to take appropriate action.[55] Counsel for Norman submitted that it should not be presumed that President Kabbah would not come if a subpoena were issued to him, but if he finally did not, then another available option would be to employ the mechanism envisaged by Rule 77(A)(iii) and (C).[56]
21. The Prosecution responded that, since the Application should be denied for the reasons previously set out, it is unnecessary for The Chamber to address the question of whether or not the President of Sierra Leone can claim any privilege in relation to a subpoena.[57] It further submitted that, similarly to the position at the ICTY, this issue must be regarded as an open question before the Special Court.[58]
22. The Attorney-General cited section 48(4) of the Constitution of Sierra Leone as well as the Blaskic Appeal Decision before the ICTY in support of the proposition that “[President Kabbah] is not compellable as President and Head of State by reason of the fact that a subpoena requires a judicial penalty to enforce it were it to be disobeyed.”[59] As President Kabbah is “the embodiment of the State of Sierra Leone”, it is the Attorney-General’s submission that a subpoena cannot be issued to him, and a penalty cannot be enforced against him, were he, as Head of State, to disobey it.[60] According to the Attorney-General, this phenomenon cannot be implied from the provisions of Rule 8 and sections 17 and 20 of the Ratification Act.[61] Furthermore, the Attorney-General argued that, assuming that The Chamber were to grant the subpoena, it “should not act in vain”, stressing that “[n]o court in any part of the world has ever made orders [...] that will diminish their authority because [they’re] difficult to enforce”.[62] He argued that he was not suggesting that The Chamber does not have the power to issue such an order, but that it is instead a “question of the practical enforcement of that order”, since “[section] 48(4) of the [Constitution of Sierra Leone] provides that [the President] within Sierra Leone, other than being committed for any offence, cannot be brought before our courts of law”. As a result, the Attorney-General would be placed in a very awkward situation because he may be unable to effect that order.[63] The Attorney-General conceded, however, that if The Chamber were to have President Kabbah as a Chamber witness, he would advise him to attend.[64]
23. Counsel for Fofana replied that the President enjoys no immunity from process under either the laws of the Republic of Sierra Leone or international law. As regards the latter, the controlling precedent is not the Blaskic Appeal Decision,[65] which the Attorney-General relied upon, as that decision addressed the functional immunity of a state official called upon to produce state documents pursuant to a subpoena duces tecum, but the more recent Krstic Appeal Decision, which according to Counsel for Fofana supports their proposition that a sitting Head of State enjoys no immunity under international law against being compelled to give evidence before an international criminal tribunal of what he saw or heard in the course of exercising his official functions.[66] Counsel for Norman also maintained that it is specifically contemplated in Article 1 of the Statute of the Special Court that “leaders” do not enjoy immunity from prosecution; surely, then, a “leader” cannot have immunity from being subpoenaed.[67] Counsel for Fofana further submitted that this proposition is supported by the Decision of the Appeals Chamber of the Special Court in the Taylor case,[68] and by the Judgement of the Supreme Court of Sierra Leone in the case of Issa Hassan Sessay, Allieu Kondewa, Moinina Fofana against the President of the Special Court, the Registrar of the Special Court, the Prosecutor of the Special Court and the Attorney-General.[69] The Attorney-General responded that the latter case is distinguishable because it deals with a Head of State who has committed a crime under the Statute of the Special Court or under international law. He also sought to distinguish section 29 of the Ratification Act, which Counsel for Fofana had relied on, because, in the submission of the Attorney-General, it refers to an accused person.[70]
24. As regards the law of Sierra Leone, it is the submission of Counsel for Fofana that, even assuming, arguendo, that the rules of international criminal law should somehow give way to the specific provisions of the Constitution of Sierra Leone, the President still enjoys no immunity from appearing as a factual witness before the Special Court in this case for the simple reason that no such immunity is prescribed by the Constitution of Sierra Leone.[71] In the course of the oral hearing, however, Counsel for Fofana stated that “[the application of section 48(4) of the Constitution of Sierra Leone] is only limited [to] the national court[s] where the President can avail himself of the provisions of section 48(4) of [the Constitution of Sierra Leone]”.[72] Counsel for Norman added that section 29 of the Ratification Act “revers[ed] the import, implication, relevance and significance” or waived section 48(4) of the Constitution of Sierra Leone for the purposes “of proceedings and processes of the Special Court”.[73] According to Counsel for Norman, “[t]he substance of [section 29] seems to be directed also to a denial of immunity for substantive charges” and could become applicable at a future stage if Rule 77 were to be invoked.[74]

II. DELIBERATIONS

A. Introduction

25. In deciding whether or not to grant the Application, The Chamber must first determine the legal standard that it considers applicable to the issuance of a subpoena and then whether or not that standard has been met in the instant case.

B. Standard for issuing a subpoena pursuant to Rule 54

26. Rule 54, entitled “General Provision”, provides that: “[a]t the request of either party or of its own motion, a Judge or a Trial Chamber may issue such orders, summonses, subpoenas, warrants and transfer orders as may be necessary for the purposes of an investigation or for the preparation or conduct of the trial”.
27. It should be observed that this provision is essentially identical to the provisions found in the Rules of the ICTY and ICTR.[75] Therefore, decisions rendered by these Tribunals and particularly by their Appeals Chamber under this Rule are to be considered of great assistance and do provide proper guidance for the disposition of this Application, [76] more particularly the decisions by the ICTY Appeals Chamber in the cases of Krstic and Halilovic.
28. The applicant for the issuance of a subpoena pursuant to Rule 54 must, in accordance with that Rule, show that the measure requested is necessary (the “necessity” requirement) and that it is for the purposes of an investigation or for the preparation or conduct of the trial (the “purpose” requirement).[77]
29. The Chamber considers that the “purpose” requirement under Rule 54 imposes on the applicant the obligation to show that the subpoena serves a legitimate forensic purpose for an investigation or the preparation or conduct of the trial against the accused. The applicant must therefore demonstrate a reasonable basis for the belief that the information to be provided by a prospective witness is likely to be of material assistance to the applicant’s case, or that there is at least a good chance that it would be of material assistance to the applicant’s case, in relation to clearly identified issues relevant to the forthcoming trial.[78] Whether the information will be of material assistance to the applicant’s case will depend largely upon the position held by the prospective witness in relation to the events in question, any relationship he may have or have had with the accused which is relevant to the charges, the opportunity which he may reasonably be thought to have had to observe those events or to learn of those events and any statements made by him to the applicant or to others in relation to those events.[79] If the applicant has been unable to interview the prospective witness, the test will have to be applied in a reasonably liberal way, but the applicant will not be permitted to undertake a “fishing expedition” –where the applicant is unaware whether the particular person has any relevant information, and seeks to interview that person merely in order to discover whether he has any information which may assist the applicant’s case.[80]
30. The “necessity” requirement under Rule 54 is designed to limit the use of coercive measures to a minimum. Since a subpoena is an instrument of judicial compulsion backed by the threat and the power of criminal sanctions for non-compliance, it is to be used sparingly.[81] The fact that a subpoena is considered to be convenient for an applicant is not a sufficient justification for the possible application of criminal sanctions against individuals to ensure compliance with it. Although we consider that a Chamber should not hesitate to use this instrument when it is necessary to elicit information material to the case and to the presentation of one of the parties’ cases, it must guard against the subpoena becoming a mechanism which is used routinely as part of trial tactics.[82] Furthermore, in deciding whether to grant such a subpoena, the Chamber must also consider, in addition to the usefulness of the information for the applicant, the overall necessity of the information in ensuring the trial is informed and fair.[83] We consider that it would be inappropriate to issue a subpoena if the information sought to be obtained is obtainable through other means.[84]
31. The Chamber subscribes to the determination made by the ICTY Appeals Chamber in the Krstic case that, before granting a subpoena to an applicant, a Chamber must ensure that the applicant has demonstrated a reasonable basis for the belief that the prospective witness is likely to give information that will materially assist the applicant’s case with regards to clearly identified issues in the forthcoming trial.[85] Furthermore, as stated by the ICTY Appeals Chamber in the Halilovic case, in determining whether or not to issue a subpoena, a Chamber may consider both whether the information the applicant seeks to elicit through the use of the subpoena is necessary for an investigation or for the preparation or conduct of the applicant’s case and whether this information is obtainable through other means.[86]

C. Whether this standard is met in the instant case

32. After a careful review of the submissions presented, The Chamber finds that the Applicants’ arguments either fail to demonstrate that the proposed testimony would materially assist the cases of the First or Second Accused (the “purpose” requirement) or alternatively fail to show that the proposed testimony is necessary for the preparation or conduct of the trial (the “necessity” requirement). Although The Chamber has addressed the arguments of Counsel for Fofana pertaining to the case of the Second Accused separately from the arguments of Counsel for Norman pertaining to the case of the First Accused, it is cognisant of the fact that, in seeking to show that a subpoena is necessary for the conduct or preparation of the trial, the Applicants have adopted each others’ submissions. The Chamber finds that, in the case before it, the mere adoption by an Applicant of arguments made by the other Applicant with respect to the latter’s case is not sufficient to demonstrate that the proposed testimony would materially assist the case of the Applicant adopting the arguments.
33. As stated earlier, whether the information is likely to be of material assistance to the applicant will, inter alia, depend largely upon the position held by the prospective witness in relation to the events in question. Because both Applicants lay great store by this position when they submit that evidence of material assistance to the cases of the First and Second Accused can be anticipated from President Kabbah’s position as President, as Commander-in-Chief and as Minister of Defence,[87] it is necessary as a preliminary issue to determine at least the contours of the position of the prospective witness based upon the various submissions made. President Kabbah was elected President of the Republic of Sierra Leone in 1996 and re-elected in 2002.[88] The Attorney-General maintained that “[a]s a result of the rebel incursion and the activities of the CDF, AFRC/RUF, [President Kabbah] was obliged for security reasons to remove himself from the seat of Government in Freetown to a neighbouring State, that is, the Republic of Guinea”.[89] Counsel for Fofana responded that “it is a matter of public record that [President Kabbah] was in exile in the Republic of Guinea from May 1997 through March 1998 –a period of eleven months”, while “the charges contained in the [Consolidated] Indictment with respect to the alleged culpability of [the Second Accused] span a much broader space of time, namely October 1997 through December 1999, a period of over two years.”[90] Thus, in the submission of Counsel for Norman, President Kabbah was President of the Republic of Sierra Leone at all times relevant to the Consolidated Indictment, from 30th November 1996 to December 1999, “during which [period] he served as President in office and also as temporarily ousted President in exile”.[91]

(i) With respect to the Second Accused

34. Counsel for Fofana maintained that President Kabbah is in possession of information relevant to the charges in the Consolidated Indictment pertaining to the Second Accused’s alleged liability pursuant to Articles 1(1), 6(1) and 6(3) of the Statute. These arguments will be analysed in turn.

(a) “Persons who bear the greatest responsibility” pursuant to Article 1(1) of the Statute of the Special Court

35. Article 1(1) of the Statute provides in relevant parts that “[t]he Special Court shall [...] 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 and implementation of the peace process in Sierra Leone.”
36. Counsel for Fofana referred to The Chamber’s Decision of 3 March 2004, wherein The Chamber concluded that “in the ultimate analysis, whether or not in actuality the [Second] 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.”[92] Counsel for Fofana argued that President Kabbah is in a position to give evidence regarding the relative culpability of the three Accused in this case in order to determine who bears the “greatest responsibility” pursuant to Article 1(1) of the Statute. In their submission, such assessments of comparative responsibility are absolutely crucial for the purposes of Article 1(1) of the Statute.[93] According to Counsel for Fofana, they “must be given the opportunity to address the potential culpability of every other actor to the conflict –individuals and organizations alike”, and it is with this aim that they seek to subpoena President Kabbah.[94]
37. In the first place, in light of the submission by Counsel for Fofana that the “greatest responsibility” lies, apart from with President Kabbah, with “Vice-President Joe Demby, former members of the CDF National Coordinating Committee, former members of the War Council, the First Accused and other CDF commanders”[95], The Chamber is not satisfied that issuing a subpoena to President Kabbah on the basis that he could testify on the relative culpability of the Second Accused, where the information is obtainable through other means, would, in the existing circumstances, be a “necessary” measure. Therefore, The Chamber finds that this would not constitute a sufficient basis for issuing a subpoena.
38. Furthermore, even if it were to be demonstrated that President Kabbah is or could be said to be one of the persons who bear the greatest responsibility, this would not affect the allegation that the Second Accused could also be one of the persons who bears the greatest responsibility. In addition, it would not mean that the Second Accused would be absolved of any criminal responsibility that he would otherwise have. This evidence is not relevant for the purposes for which it is being sought at this stage. Thus, in The Chamber’s opinion, Counsel for Fofana have failed to show that the proposed testimony would materially assist the case of the Second Accused.

(b) Individual criminal responsibility pursuant to Article 6(1) of the Statute of the Special Court

39. Article 6(1) of the Statute provides that “[a] person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in articles 2 to 4 of the present Statute shall be individually responsible for the crime.”
40. In so far as the responsibility of the Second Accused pursuant to Article 6(1) of the Statute is concerned, Counsel for Fofana submitted that, at the relevant time, President Kabbah “was commanding, materially supporting, and communicating with various members of the alleged CDF leadership”, both from Conakry and from Freetown, and that President Kabbah is in a position to provide evidence “on the activities of the CDF”.[96]
41. As for the submission that President Kabbah was commanding, materially supporting, and communicating with various members of the alleged CDF leadership, The Chamber fails to understand the materiality of this submission to the case of the Second Accused. In addition, The Chamber finds that the submission on “the activities of the CDF” fails to identify with sufficient specificity either the particular indictment-related issue to which the proposed testimony goes to or, indeed, how this testimony would materially assist the case of the Second Accused. Furthermore, despite the allegation by Counsel for Fofana that “personnel from the CDF travelled to Guinea and periodically held consultation meeting[s] with [President Kabbah]”,[97] there is, however, no suggestion that President Kabbah has personal knowledge about what happened “on the ground” so that he could be asked to verify the facts alleged in the Consolidated Indictment. Therefore, there is no legitimate forensic purpose in calling him to verify these facts.
42. Counsel for Fofana also maintained that President Kabbah can provide evidence on the existence and extent of the participation of the Second Accused in a common plan, design or purpose for the determination of his responsibility pursuant to participation in a joint criminal enterprise.[98] They do not, however, provide any additional explanation as to why they believe this would be the case. This, coupled with the fact that the Consolidated Indictment does not allege that President Kabbah was a party to the common purpose, leads The Chamber to conclude that Counsel for Fofana have failed to show a reasonable basis for their belief that the prospective witness is likely to give information that would materially assist the case of the Second Accused.
43. This said, in their submissions on the relevance of the proposed testimony to the existence of a common plan, Counsel for Fofana referred to the argument that the CDF was fighting to restore President Kabbah’s own government.[99] The Chamber is not satisfied that, even if proven, the existence of a common purpose to restore President Kabbah to power would exclude the concurrence of the common purpose charged in the Consolidated Indictment and which, it is alleged, amounted to using “any means necessary to defeat the RUF/AFRC forces and to gain and exercise control over the territory of Sierra Leone.”[100] Therefore, The Chamber fails to see how the proposed testimony would materially assist the case of the Second Accused. Moreover since Counsel for Fofana provides no explanation as to how demonstrating that the CDF was fighting to restore President Kabbah to power might impact upon The Chamber’s findings on any element of any crime or mode of liability with which the Second Accused is charged in the Consolidated Indictment. Furthermore, that the CDF was fighting for the restoration of democracy and the restoration of President Kabbah to power is not a matter disputed by the Prosecution.[101]

(c) Superior criminal responsibility pursuant to Article 6(3) of the Statute of the Special Court

44. Article 6(3) provides that “[t]he fact that any of the acts referred to in [A]rticles 2 to 4 of the present Statute was committed by a subordinate does not relieve his or her superior of criminal responsibility if he or she knew or had reason to know that the 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.”
45. Counsel for Fofana submitted that, because President Kabbah is alleged to have been the top figure of the CDF, he could provide evidence relevant to the Article 6(3) charges against the Second Accused, such as evidence on the CDF command structure, including: (i) the duties associated with the position of Director of War; (ii) how orders passed through the chain of command; and (iii) how members of the CDF leadership interacted with one another.[102] While The Chamber recognises that Counsel for Fofana have identified indictment-related issues which, in their submission, the proposed testimony would go to, The Chamber is not satisfied that a subpoena to President Kabbah on the basis that he could testify on the CDF command structure, where the information is obtainable through other means, would be a “necessary” measure. Therefore, The Chamber declines to issue the subpoena on this basis.
46. Furthermore, Counsel for Fofana maintained that “[t]he fact that the CDF was fighting to restore [President Kabbah’s] own government, in conjunction with the evidence already adduced that CDF personnel travelled to Guinea to attend meetings with the President and further that he was in constant contact with [the First Accused] via satellite phone, implies that [President Kabbah] may have been coordinating the entire CDF effort from Conakry”.[103] Again, despite the claim by Counsel for Fofana that this proposed testimony is highly relevant to the Article 6(3) case against the Second Accused and, in particular, to the Prosecution’s allegations regarding the existence of a superior-subordinate relationship,[104] it is not sufficient to show how the proposed testimony would materially assist the case of the Second Accused or might impact upon The Chamber’s findings on any element of any crime or mode of liability with which the Second Accused is charged in the Consolidated Indictment. The Article 6(3) allegation against the Second Accused is that he bears responsibility for the acts of his subordinates.[105] It is not immediately apparent to The Chamber how the mere contention that President Kabbah is alleged to have been the top official coordinating the efforts of the CDF would constitute a reasonable basis for the belief that he is likely to give information that would materially assist the case of the Second Accused with regards to whether or not those committing the crimes alleged in the Consolidated Indictment were indeed the Second Accused’s subordinates, including whether or not he had effective control over them.[106] The Chamber is not satisfied that Counsel for Fofana have made a showing to this effect and consequently they have failed to show a legitimate forensic purpose for the issuance of a subpoena pursuant to Rule 54.
47. Finally, Counsel for Fofana maintained that President Kabbah was specifically mentioned by at least seven Prosecution witnesses, some indicating that he may have played a role within the alleged CDF command structure, and, therefore, the relevance of what President Kabbah may have to say about such testimony is self-evident.[107] While mindful of the fact that the test for a subpoena has to be applied in a reasonably liberal way when an applicant has not been able to obtain a pre-testimony interview from the prospective witness, The Chamber wishes to emphasise that, as we have already stated, an applicant is not allowed for that purpose to embark on a “fishing expedition”. In The Chamber’s view, the submission by Counsel for Fofana that the relevance of the proposed testimony is “self-evident” amounts to a vague and general assertion which as a result fails to sufficiently substantiate how the proposed testimony would materially assist the case of the Second Accused with respect to any particular indictment-related issue or how it might impact upon the Chamber’s findings on any element of any crime or mode of liability with which the Second Accused is charged in the Consolidated Indictment.
48. In the course of oral submissions, Counsel for Fofana mentioned, in passing, that only President Kabbah would be privy to the conversation, if any, that took place between himself and the CDF leadership, and that only he can provide information as to whether he gave direct orders and whether he knew of the perpetration of the alleged acts in the places specified in the Consolidated Indictment.[108] Now, whether the Second Accused was in fact put on notice that his subordinates either were about to commit such crimes as are specified in the Consolidated Indictment or had done so is not likely to be affected by any evidence that President Kabbah can give of his own personal knowledge, if any, since there is no suggestion that President Kabbah ever put the Second Accused on notice of such crimes, or knew of such crimes and failed to put the Second Accused on notice of them.[109] As for the passing reference to “direct orders”, if it is the case of the Second Accused that the crimes charged in the Consolidated Indictment came about as a result of the Second Accused following orders from President Kabbah, then it should be expressly stated. A mere allusion to such possibility is not sufficient justification in our opinion for The Chamber to exercise its powers of compulsion. Furthermore, even if it were the case of the Second Accused that he was following orders from President Kabbah, this would not relieve him of criminal responsibility. Should he be convicted, it may then be considered in mitigation of punishment if The Chamber determines that justice so requires.[110] Therefore, while it may become relevant in the determination of an appropriate sentence, it would not be relevant for the purposes for which this substantive evidence is being sought at this stage.[111] Thus, in The Chamber’s view, Counsel for Fofana have failed to show a legitimate forensic purpose for the issuance of a subpoena.

(ii) With respect to the First Accused

49. Counsel for Norman submitted that President Kabbah’s testimony would materially assist the First Accused in rebutting paragraphs 13, 14, 15, 18, 20 and 21 of the Consolidated Indictment, since: (i) in his position as Minister of Defence he appointed the First Accused to the role of Coordinator of the CDF; (ii) the First Accused was directly answerable to him, and the two were in constant contact as to the conduct of the war; and (iii) President Kabbah helped to raise money to pay for the war.[112] The Chamber finds that these submissions fail to identify with sufficient specificity how the proposed testimony would materially assist the case of the First Accused in rebutting paragraphs 13, 14, 15, 18, 20 of the Consolidated Indictment, and further, how it might impact upon The Chamber’s findings on any element of any crime or mode of liability with which the First Accused is charged.
50. In addition, Counsel for the First Accused Norman maintained that “[President] Kabbah knew what [the First Accused] was doing at all times because [he] was in contact with [President] Kabbah by satellite phone”.[113] However, Counsel for Norman have failed to show that the prospective witness’ awareness of the acts of the First Accused at all times relevant to the Consolidated Indictment is something which, if established, would affect the First Accused’s case in relation to any particular charge or mode of liability in the Consolidated Indictment. Thus, Counsel for Norman have failed to show a legitimate forensic purpose for the issuance of a subpoena pursuant to Rule 54.
51. Furthermore, Counsel for Norman referred to Article 1(1) of the Statute and stated that “[i]f, for one reason or the other, the Prosecution failed to indict [President Kabbah], then it is not their business for them to question the First Accused why [President Kabbah’s] evidence is necessary for the proper execution of his defence”.[114] The Chamber fails to see the relevance of this submission. If, by this submission, Counsel for Norman was seeking to argue that the prospective witness’ testimony would become relevant in determining whether or not President Kabbah is one of those individuals who bear the greatest responsibility, The Chamber has already dismissed this submission in the case of the Second Accused, and its reasons for doing so are equally applicable to this submission.
52. Counsel for Norman also stated that President Kabbah can certainly testify as to what he knows happened to the people of his country and who caused it, which, in their submission, was not the CDF.[115] Again, The Chamber fails to see either the particular indictment-related issue to which the proposed testimony is relevant or, indeed, how this testimony would materially assist the case of the First Accused. In addition, since there is no suggestion that President Kabbah has personal knowledge about what happened “on the ground” (Counsel for Norman maintained that “[the First Accused] was in the field, but President Kabbah was either at the State House or in Conakry”[116]) so that he could be asked to verify the facts alleged in the Consolidated Indictment, there is no legitimate forensic purpose in calling him to verify these facts. Somewhat quizzically, Counsel for Norman stated that “this particular knowledge that the President has of events that occurred while he was in exile in Guinea [...] is one of the areas of material importance to the Defence”.[117] Again, The Chamber fails to see the relevance of this submission: whether or not the First Accused was in fact put on notice that his subordinates were either about to commit such crimes as are specified in the Consolidated Indictment or had done so is not likely to be affected by any evidence that President Kabbah can give of his own personal knowledge of those crimes, if any, since there is no suggestion that President Kabbah ever put the First Accused on notice of them, or knew of such crimes and failed to put the First Accused on notice of them.
53. Counsel for Norman further submitted that President Kabbah possesses knowledge of the structures of the CDF and could testify about his involvement in that organisation.[118] As for the former, The Chamber is not satisfied that a subpoena to President Kabbah on the basis that he could testify on the CDF command structure, where the information is obtainable through other means, would be a “necessary” measure, and therefore The Chamber declines to issue the subpoena on this basis. As for the submission that President Kabbah could testify on his own alleged involvement in the CDF, it is not sufficient to show how the proposed testimony would materially assist the case of First Accused or how it might impact upon The Chamber’s findings on any element of any crime or mode of liability with which the First Accused is charged in the Consolidated Indictment. In the course of the oral hearing, Counsel for Norman supplemented these submissions by stating that President Kabbah’s evidence would clarify “most indispensably, those allegations of exercise of authority, command and control over all subordinate members of the CDF”.[119] Counsel for Norman do not, however, provide any additional explanation as to why they believe this would be the case. This, coupled with the fact that the Norman Defence Pre-Trial Brief alleges that the CDF “was under the control of a coalition of organisations, including, but not limited to, Economic Community of West African States Monitoring Group (“ECOMOG”), Sierra Leone Army, and various local chiefs and war councils”[120] leads The Chamber to conclude that the issuance of a subpoena to President Kabbah on that basis, i.e. that he could give information as to who exercised effective control over the CDF for the purposes of Article 6(3) of the Statute, where the information is obtainable through other means, would not be a “necessary” measure, and therefore declines to issue the subpoena on this basis.
54. Finally, Counsel for Norman, relying, inter alia, on statements purportedly made by President Kabbah himself stated that, at the very minimum, the inconsistencies found in those statements (whether it was the crimes of, inter alia, the CDF that forced President Kabbah into exile, when it is the submission of Counsel for Norman that the role of the CDF in restoring President Kabbah’s government is undisputed[121]) “go to core issues in the Consolidated Indictment, reveal the materiality of the President’s anticipated testimony”.[122] Again, The Chamber fails to see how the proposed testimony would materially assist the case of the First Accused, and further, how it might impact upon the Chamber’s findings on any element of any crime or mode of liability with which the First Accused is charged in the Consolidated Indictment.

D. Conclusion

55. The Applicants are seeking to secure a pre-testimony interview and the testimony of President Kabbah as a prospective witness by way of a subpoena pursuant to Rule 54. According to the provisions of this rule, a subpoena must be “necessary” for “the preparation or conduct of trial”. The Chamber, having proceeded to a detailed examination of the Applicants’ submissions, finds, for the reasons set forth in the previous part, more specifically part C, paragraphs 32 to 54 inclusive, that the issuance of a subpoena is not warranted in relation to President Kabbah as concerns either the First or the Second Accused. This finding constitutes a sufficient basis to dispose of this Application.
    

IV. DISPOSITION

56. For these reasons, and pursuant to the provisions of Rule 54, The Chamber hereby DENIES the Motions by Court Appointed Counsel for the Second Accused and Court Appointed Counsel for the First Accused, for the issuance of a subpoena to H.E. Alhaji Dr. Ahmad Tejan Kabbah, the President of the Republic of Sierra Leone, for a pre-testimony interview and for testimony at this trial.

ACCORDINGLY, the Motions are DISMISSED.

Hon. Justice Benjamin Mutanga Itoe appends a Separate Concurring Opinion to this Majority Decision.

Hon. Justice Bankole Thompson appends a Dissenting Opinion to this Majority Decision.

Done in Freetown, Sierra Leone, this 13th day of June, 2006.

[Seal of the Special Court for Sierra Leone]

[1] SCSL-04-14-T-535, p. 2.
[2] They were supplied to him by the Registrar of the Special Court: see SCSL-04-14-T-537.
[3] SCSL-04-14-T-537.
[4] SCSL-04-14-T-541.
[5] Transcript of the 14th of February, 2006, pp. 1-98.
[6] Ibid., p. 47. Counsel for Norman had argued in their written submission that the Prosecution had no standing to object to the issuance of a subpoena to a third party because it has no control over which witnesses the Defence intends to call, so that while the prospective witness to whom a subpoena is directed can move to have it quashed, the Prosecution cannot: Norman Reply to Prosecution, paras 3, 10-14. According to Counsel for Norman, the Prosecution’s objection violated the right of the accused, inter alia, to summon the witnesses on his behalf in “full equality”: ibid., paras 5-9, citing Article 17(4) of the Statute of the Special Court. Counsel for Fofana expressly associated themselves with the argument made by Counsel for Norman that the Prosecution had no standing to object: Fofana Reply to Prosecution, paras 2, 4-6. This matter was also the subject of oral submissions. Whereas, in the course of the hearing, Counsel for Fofana did not reiterate their objection to the Prosecution’s intervention in the proceedings, Counsel for Norman did. The Prosecution responded that it was not the Prosecution’s duty to seek to control who the Defence wished to call as their witness by way of a subpoena so long as the evidence that was being sought was relevant: Transcript of the 14th of February, 2006, p. 43. In the course of the oral hearing, Counsel for Norman eventually withdrew their objection: ibid., p. 47.
[7] Thus, in their Motion, Counsel for Norman associated themselves with the submissions made by Counsel for Fofana in theirs. When replying to the Prosecution, Counsel for Fofana associated themselves with the submissions in the Norman Reply to Prosecution. For his part, in paragraph 12 of his Responses to the Motions, the Attorney-General adopted by reference the submissions in the Prosecution Responses to the Motions. In paragraph 5 of their reply to the Attorney-General, Counsel for Norman associated themselves with the submissions made in the Fofana Reply to Attorney-General.
[8] Fofana Motion, paras 1, 28; Norman Motion, paras 1, 2.
[9] Prosecution Response to Fofana Motion, para. 2; Prosecution Response to Norman Motion, para. 2; Attorney-General Response to Fofana Motion, paras 11, 16; Attorney-General Response to Norman Motion, paras 11, 16.
[10] Fofana Motion, para. 10, citing Prosecutor v. Delalic et al., Case No. IT-96-21-T, Decision of the President on the Prosecutor’s Motion for the Production of Notes Exchanged between Zejnil Delalic and Zdravcko Mucic, 11 November 1996, para. 39.
[11] Fofana Motion, para. 10, citing Prosecutor v. Bagosora et al., Case No. ICTR-98-41-T, Decision on Request for Subpoena of Major General Yaache and Cooperation of the Republic of Ghana, 23 June 2004, Trial Chamber (“Bagosora Decision”), para. 4.
[12] Transcript of the 14th of February, 2006, pp. 27, 33.
[13] Ibid., pp. 91-92.
[14] Prosecution Response to Fofana Motion, para. 5, citing, inter alia, Prosecutor v. Krstic, Case No. IT-98-33-A, Decision on Application for Subpoenas, 1 July 2003, Appeals Chamber (“Krstic Appeal Decision”), para. 10.
[15] Prosecution Response to Fofana Motion, para. 6, citing Prosecutor v. Milosevic, Case No. IT-02-54-T, Decision on Assigned Counsel Application for Interview and Testimony of Tony Blair and Gerhard Schroder, 9 December 2005, Trial Chamber (“Milosevic Decision”), para. 39.
[16] Prosecution Response to Fofana Motion, para. 5, citing, inter alia, Milosevic Decision, para. 36.
[17] Prosecution Response to Fofana Motion, para. 15, citing, inter alia, Prosecutor v. Halilovic, Case No. IT-01-48-AR73, Decision on the Issuance of Subpoenas, 21 June 2004, Appeals Chamber (“Halilovic Appeal Decision”), para. 7.
[18] Attorney-General Response to Fofana Motion, para. 12; Attorney-General Response to Norman Motion, para. 12.
[19] Fofana Reply to Prosecution, paras 10-13, citing, inter alia, Rule 89(C).
[20] Fofana Reply to Attorney-General, para. 6.
[21] Fofana Motion, paras 13-14.
[22] Fofana Reply to Prosecution, para. 21.
[23] Fofana Motion, para. 14, citing Article 1(1) of the Statute of the Special Court.
[24] Fofana Motion, para. 14.
[25] Transcript of the 14th February, 2006, pp. 19-20.
[26] Fofana Motion, para. 15. The seven Prosecution witnesses mentioned are TF2-140, TF2-096, TF2-190, TF2-001, TF2-005, TF2-014 and TF2-EW1.
[27] Transcript of the 14th February, 2006, p. 20.
[28] Prosecution Response to Fofana Motion, para. 14.
[29] Transcript of the 14th February, 2006, pp. 63-64.
[30] Prosecution Response to Norman Motion, para. 8.
[31] Norman Reply to Prosecution, paras 15-17, citing Krstic Appeal Decision, para. 17.
[32] Transcript of the 14th February, 2006, p. 86.
[33] Norman Reply to Prosecution, para. 20; Norman Reply to Attorney-General, para. 7.
[34] Norman Reply to Prosecution, para. 21. See also Transcript of the 14th February, 2006, pp. 28-29.
[35] Norman Reply to Prosecution, para. 24. In paragraphs 19, 20 and 24 of the Norman Reply to Prosecution, Counsel for Norman referred to a number of paragraphs from the TRC report in support of the contention that President Kabbah is in a position to give evidence on the issues outlined by Counsel for Norman.
[36] Attorney-General Response to Fofana Motion, para. 14.
[37] Ibid., para. 14.
[38] Fofana Reply to Attorney-General, paras 7-8.
[39] Norman Reply to Attorney-General, paras 8-13.
[40] Fofana Motion, para. 12.
[41] Ibid., para. 4. See also Transcript of the 14th of February, 2006, p. 5.
[42] Fofana Motion, para. 5. See also ibid., Annex A.
[43] Ibid., para. 12.
[44] Fofana Reply to Prosecution, para. 23.
[45] Fofana Motion, para. 6. See also ibid., Annex B.
[46] Prosecution Response to Fofana Motion, paras 18-19; Prosecution Response to Norman Motion, paras 18-19.
[47] Fofana Reply to Prosecution, para. 22.
[48] Fofana Motion, para. 12.
[49] Transcript of the 14th February, 2006, p. 30.
[50] Attorney-General Response to Fofana Motion, para. 14; Attorney-General Response to Norman Motion, para. 14.
[51] Fofana Reply to Attorney-General, para. 14.
[52] Ibid., paras 10-16; Norman Reply to Attorney-General, paras 14-17.
[53] Fofana Motion, paras 16-19, citing Article 17 of the Agreement Between the United Nations and the Government of Sierra Leone on the Establishment of a Special Court for Sierra Leone (“Agreement”), section 21(2) of the Special Court Agreement, 2002 (Ratification) Act, 2002 (“Ratification Act”) and Rule 8.
[54] Fofana Reply to Attorney-General, paras 17-20; Fofana Motion, paras 20-24, citing section 20 of the Ratification Act and Rule 8.
[55] Transcript of the 14th of February, 2006, pp. 14-15.
[56] Ibid., pp. 25-26.
[57] Prosecution Response to Fofana Motion, para. 18.
[58] Ibid., para. 19, citing Krstic Appeal Decision, para. 27 and Milosevic Decision, para. 67.
[59] Attorney-General Response to Fofana Motion, para. 15, citing National Constitution of Sierra Leone, Act No. 6 of 1991 (“Constitution of Sierra Leone”), section 48(4) and Prosecutor v. Blaskic, Case No. IT-95-14-AR108bis, Judgement on the Request of the Republic of Croatia for Review of Decision of Trial Chamber II of 18 July 1997, 29 October 1997, Appeals Chamber (“Blaskic Appeal Decision”), paras 25, 38.
[60] Attorney-General Response to Fofana Motion, para. 15.
[61] Ibid., para. 15.
[62] Transcript of the 14th February, 2006, p. 74.
[63] Ibid., pp. 79-81.
[64] Ibid., p. 83.
[65] Counsel for Fofana had earlier argued, on the basis of the Blaskic Appeal Decision, that President Kabbah cannot claim functional immunity from subpoena: Fofana Motion, para. 27. “While so much of the Blaskic [Appeal Decision] was concerned with the rights and powers of sovereign States, it must be noted here that the sovereign Republic of Sierra Leone specifically abdicated by treaty a measure of its sovereignty to the Special Court”: Fofana Motion, fn. 26.
[66] Fofana Reply to Attorney-General, paras 23-25. See also Norman Reply to Attorney-General, paras 24-28.
[67] Norman Reply to Attorney-General, para. 29.
[68] Transcript of the 14th of February, 2006, pp. 9-12, citing Prosecutor v. Taylor, Case No. SCSL-03-01-I, Decision on Immunity from Jurisdiction, 31 May 2004, Appeals Chamber.
[69] Transcript of the 14th of February, 2006, pp. 9-12, citing Judgment in the Supreme Court of Sierra Leone, Case No. S.C No. 1/2003, “In the Matter of Application Pursuant to Sections 122, 124, and 127 of the Constitution of Sierra Leone Act No. 6 of 1991 and Part XVI, Rules 89-98 of the Supreme Court Rules Statutory Instrument, No 1 of 1982 and In the Matter of the Constitution of Sierra Leone, Act No. 6 of 1991, Sections 122, 124, 127, 171(15), 120, 108, 40(4), 125 and 30(1) and In the Matter of the Special Court Agreement 2002 (Ratification) Act 2002 (Ratification) (Amendment) Act, 2002 – Article 1(1) of the Schedule and the Preamble Thereto, Part III Sections 10, 11(2) 29 and Article 8(1) & (2) of the Statute of the Said Act”, 14 October, 2005 (“Supreme Court Judgment”). Counsel for Norman also relied on the Supreme Court Judgement for the proposition that section 48(4) of the Constitution of Sierra Leone is not applicable before an international criminal tribunal: Transcript of 14th of February, 2006, pp. 36-40.
[70] Transcript of the 14th February, 2006, pp. 75-76.
[71] Fofana Reply to Attorney-General, paras 26-27; Fofana Motion, para. 26, citing Constitution of Sierra Leone, Chapter V (the Executive), Part I (The President), section 48(4). See also Norman Reply to Attorney-General, para. 23.
[72] Transcript of the 14th of February, 2006, p. 9.
[73] Ibid., pp. 35-36: “[m]aking it absolutely irrelevant and non-applicable is in effect nullifying its force”.
[74] Ibid., pp. 39-41.
[75] Rule 54 of the ICTY Rules of Procedure and Evidence provides: “[a]t the request of either party or proprio motu, a Judge or a Trial Chamber may issue such orders, summonses, subpoenas, warrants and transfer orders as may be necessary for the purposes of an investigation or for the preparation or conduct of the trial.” Rule 54 of the ICTR Rules of Procedure and Evidence provides: “[a]t the request of either party or proprio motu, a Judge or a Trial Chamber may issue such orders, summonses, subpoenas, warrants and transfer orders as may be necessary for the purposes of an investigation or for the preparation or conduct of the trial.”
[76] See Articles 14(1) and 20(3) of the Statute of the Special Court. See also Prosecutor v. Brima et al., Case No. SCSL-04-16-PT,-Decision and Order on Defence Preliminary Motion on Defects in the Form of the Indictment, 1 April 2004, Trial Chamber, paras 22-25.
[77] See Halilovic Appeal Decision, para. 7. See also Milosevic Decision, fn. 51.
[78] See Halilovic Appeal Decision, para. 6. See also Krstic Appeal Decision, para. 10. The Chamber notes that, contrary to the practice at the ICTY, the ICTR does not require an applicant to clearly identify the issues in the forthcoming trial in relation to which the proposed testimony would be of material assistance; see, e.g., Bagosora Decision, para. 4: “[...] the Defence must have a reasonable belief that the prospective witness can materially assist in the preparation of its case”. The Chamber is of the view that to require an applicant to clearly identify the issues in the forthcoming trial in relation to which the proposed testimony would be of material assistance is more in keeping with the criteria found in Rule 54 that a subpoena must be “necessary for the purposes of an investigation or for the preparation or conduct of the trial”.
[79] See Krstic Appeal Decision, para. 11. See also Halilovic Appeal Decision, para. 6.
[80] See Krstic Appeal Decision, para. 11.
[81] See Halilovic Appeal Decision, para. 10.
[82] See Halilovic Appeal Decision, para. 10.
[83] See Halilovic Appeal Decision, para. 7. See also Prosecutor v. Brdanin and Talic, Case No. IT-99-36-AR73.9, Decision on Interlocutory Appeal, 11 December 2002, Appeals Chamber, para. 46.
[84] See Halilovic Appeal Decision, para. 7. See also Milosevic Decision, para. 41.
[85] See Krstic Appeal Decision, para. 10. See also Halilovic Appeal Decision, para. 6.
[86] See Halilovic Appeal Decision, para. 7. See also Krstic Appeal Decision, paras 10-12.
[87] See Counsel for Norman at Transcript of the 14th of February, 2006, pp. 29, 89.
[88] Attorney-General Response to Fofana Motion, para. 4.
[89] Ibid., para. 6.
[90] Fofana Reply to Attorney-General, para. 8.
[91] Transcript of the 14th of February, 2006, p. 28.
[92] Prosecutor v. Norman et al., Case No. SCSL-04-14-PT, Decision on the Preliminary Defence Motion on the Lack of Personal Jurisdiction Filed on Behalf of Accused Fofana, 3 March 2004, Trial Chamber (“Decision on ‘Greatest Responsibility’ Requirement”), para. 44.
[93] Fofana Motion, para. 13, citing, inter alia, Decision on ‘Greatest Responsibility’ Requirement, para. 44.
[94] Fofana Reply to Prosecution, para. 15.
[95] Prosecutor v. Norman et al., Fofana Motion for Judgement of Acquittal, 4 August 2005, SCSL-04-14-T-457, para. 24 (“Fofana Rule 98 Motion”).
[96] Fofana Motion, paras 13-14.
[97] Transcript of the 14 of February, 2006, p. 20.
[98] Fofana Reply to Prosecution, para. 21.
[99] Ibid., paras 19-21: “[...] [f]or the same reasons discussed above, [President Kabbah] will likely be able to shed light on [the Second Accused’s] alleged participation in any common plan, design, or purpose, to the extent such existed”. See also Fofana Motion, para. 13.
[100] Consolidated Indictment, para. 19.
[101] See the submission of the Prosecution at Transcript of Status Conference of the 2nd of May, 2006, p. 15: “[t]hat is not in dispute and it has never been challenged that the CDF came to the assistance of the government and the government were extremely grateful”. See also ibid., pp. 6-7.
[102] Fofana Reply to Prosecution, para. 18; Transcript of the 14th of February, 2006, pp. 19-20.
[103] Fofana Reply to Prosecution, para. 19.
[104] Ibid., paras 18-20. The Chamber notes that, in their submission, Counsel for Fofana stated that “[a]ll of this information [...] is highly relevant to the first element of the Prosecution’s putative command responsibility case”. While Counsel for Fofana do not specify what this element is, The Chamber has taken the reference to the “first element” to mean the existence of a superior-subordinate relationship: see Fofana Rule 98 Motion, para. 48.
[105] Consolidated Indictment, para. 21.
[106] See Fofana Rule 98 Motion, para. 68: “[i]n sum, because the Prosecution has failed to establish that [the Second Accused] was indeed a superior with effective control over his alleged subordinates [...], the charges against him with respect to Article 6(3) must be dismissed.”
[107] Fofana Motion, para. 15.
[108] Transcript of the 14th February, 2006, p. 24.
[109] See Fofana Rule 98 Motion, para. 68: “[i]n the alternative, the Prosecution has failed to demonstrate that [the Second Accused] knew or should have known of any alleged violations of that he failed to take the reasonable and necessary measures to prevent them.”
[110] See Article 6(4) of the Statute of the Special Court.
[111] See Rule 100(A).
[112] Norman Reply to Prosecution, para. 21.
[113] Ibid., para. 21.
[114] Ibid., para. 22.
[115] Ibid., para. 24.
[116] Ibid., para. 21.
[117] Norman Reply to Attorney-General, para. 7.
[118] Ibid., para. 7.
[119] Transcript of the 14th of February, 2006, p. 31.
[120] Prosecutor v. Norman et al., Defence Pre-Trial Brief Pursuant to Revised Order for the Filing of Defence Pre-Trial Briefs (under Rules 54 and 73 bis) of 22nd March 2004, 31 May 2004, SCSL-04-14-PT-111, para. 63.
[121] Norman Reply to Attorney-General, para. 11.
[122] Ibid., para. 13.