Upon our arrival from Freetown in Bonthe Island, we went through the town and to the prison area, which is guarded by UNAMSIL Nepalese units and has the detention facilities and the courthouse inside the perimeter of that security.  The buildings appear to be secure and look reasonably comfortable from the outside.  The representative of ICRC and the representative of UNAMSIL Human Rights apparently both requested to see the detention facilities but their request was denied on the grounds that the initial appearances were about to start.

The courthouse was in reasonable shape.  There was sufficient seating for the visitors from Freetown and the public from Bonthe Island.  Apparently they invited the District Officer, the Mayor and the local Magistrate and told them to bring people along.  It does not appear that any NGOs there, nor that any were invited, although there might have been in the general crowd. One comment that has been made by members of the Freetown press is that preference was given to foreign journalists over Sierra Leonean journalists, which appears true from the press representation that was there.

The court had a roof across the entire building, with walls for the actual courtroom, which was separated from the public gallery by a floor-to-ceiling chain link fence, and the public gallery had a roof and a back wall but no side walls.  This allowed an unimpeded to the detention facility and hence to the accuseds as they were being brought from the detention facility to the courthouse.  It should be noted that the fence ended at a distance from the wall that was sufficient for two people to pass through (and for a wheelchair to pass through) but it was simply a space, with no means of closing the gap, such as a door.  Nevertheless, security was tight and strong and there were no disturbances or even any hints of trouble throughout the proceedings.

The initial appearances began late, at around 10.40, since the courtroom was still being set up and arrangements for how the proceedings would work were still being finalised.  This would have been a good time to distribute copies of the indictments, but the Court did not have any copies, so it was not to be.   It should also be noted that neither David Crane nor Desmond de Silva nor Robin Vincent were present at these hearings, presumably for very good reasons.

Case No. SCSL02: The Prosecutor v Foday Sankoh
The first accused to appear was Foday Sankoh, who was carried in a wheelchair from the detention facilities up to the courthouse.  As has been reported in the news, Sankoh appears a broken and pitiful sight.  His dreadlocks are grey and matted, he was hunched over in his chair, his right hand was bent at an angle (presumably the result of his strokes), he was shaking (the BBC I think reports his leg was shaking uncontrollably but I could not see his legs, only his upper body) and chewed constantly throughout the proceedings.  This was not the picture of a man who even knew where he was, let alone what was happening to him or the nature of the charges he was to face.

After he was brought in, the judge came in and proceeded to explain a number of matters to the public and those participating in proceedings, including the legal basis for the Special Court and the difference between trial and pre-trial proceedings.  He then invited the members of the Bar to introduce themselves, which they did.  Judge Itoe then talked about the purpose of the Court and the need to protect the rights of the accused and the presumption of innocence.  He admonished counsel to be courteous, not only to the court but also among counsel.

While everything he said were useful things to say, the timing could have been better: all throughout this speech, Sankoh sat hunched in his wheelchair, shaking.  It was unnecessary for him to be there throughout the judge’s speech and, furthermore, humiliating for him to be left there, unacknowledged, while the court spoke of justice and the rights of the accused.

The case then proceeded, with Judge Itoe attempting to get a response out of Foday Sankoh about his identity.  Mr Sankoh did not respond to these questions, placing his hand over his face.  The prison attendants sat Mr Sankoh up in his wheelchair after the Judge asked Mr Sankoh to look him in the face, but he soon reverted to the hunched position.  After four times of asking Mr Sankoh his name, the Judge said “Well, the court is taken aback”.  At this point, defence counsel intervened and noted they had sent a letter to the judge, copied to the Prosecutor, requesting this matter be adjourned to seek a full medical and psychiatric evaluation of the accused, based on the defence’s observations of his physical and mental condition and the fact he did not appear to understand what counsel was saying to him.  The prosecution (Jim Johnson) then spoke, saying that 1. They could bring a witness to identify the accused person as Foday Sankoh; 2. They had not read the letter but supported a full examination; and 3. Requested the Judge to enter a plea of Not Guilty, since the accused had failed to enter a plea on his own behalf (see rule 61(A)(iii)).

Judge Itoe refused to enter a plea on Sankoh’s behalf, stating that he could make his own options later and it would be premature to enter a plea for him.  After some discussion on the nature of the examination (primarily to clarify it was to establish whether he was fit to stand trial), and who should conduct such an examination (the defence said it should be an expert from abroad), the Judge adjourned the matter until later in the day at which time he would make an order in this regard.  He dispensed with the need for the appearance of the accused while he made that order.

Later, when the case was reopened, the Judge stated that he would make his order in the absence of the accused, as the accused’s presence had been dispensed with earlier in the day.  Having considered the relevant matters, the Judge ordered, pursuant to rule 54 and 74bis, that there shall be a physiological and psychiatric examination of the accused Sankoh and directed the Registrar to undertake, in consultation with the defence and the prosecution, all necessary measures for the execution of this order.  The accused will remain in custody.  The matter was adjourned until Thursday, 20 March 2003.

Case No. SCSL05: The Prosecutor v Isa Sessay
Isa Sessay walked into the courtroom, handcuffed, between two prison officers.  He was fully aware of what was going on and appeared to be in good health.  He identified himself upon request from the Judge.  When asked if he understood the difference between a trial and pre-trial hearing, defence counsel intervened and made an application for an interpreter, since the accused preferred to be spoken to in Krio.  Judge Itoe said that the official language of the Court is English, but there is provision for the use of the mother tounge if the accused prefers, so he was prepared to grant the order.  An interpreter was duly brought in and sworn in.  As there was no provision for simultaneous translation, the initial proceeding was conducted on the basis of a sentence in English, which was then translated into Krio.

The Judge confirmed with Sessay that he was 32 years old, born in central Freetown and that his last place of residence was Abidjan.  When asked if he had a lawyer or wanted one, Mr Sessay replied that he would know when he heard the charges against him.  He confirmed that while a copy of the indictment was served on him, he had not read the charges because he had no light where he was.  The Judge therefore decided the indictment should be read to him, which it was, and was translated as well.

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The Indictment (highlights, see www.specialcourt.org for a full copy of this indictment):  The indictment proceeds with the general allegations that at all times there was a state of armed conflict in Sierra Leone, an outline of the fighting factions, and that at all times there was a nexus between the armed conflict and all acts and omissions charged in this indictment.  It runs through the history of the RUF, the CDF and the AFRC, including the various peace agreements and so on.  It says that at all times the accused and members of the fighting factions were required to comply with the Geneva Conventions.  The general allegations also include a general statement of the compliance of the charges with the limitations contained in the Statute, including the temporal and geographical jurisdiction and the elements of the crimes.

The individual criminal responsibility section alleges that the accused exercised command and control at different points throughout the conflict, highlighting the various positions he held at various times within the RUF.  It further alleges that at all relevant times, the accused acted in concert with Sankoh, the RUF and Charles Taylor.  It alleges they, together with the AFRC, shared a common purpose or design as part of a joint criminal enterprise to take any action necessary to gain and exercise political power and control over the territory of Sierra Leone, in particular diamond mining areas, and over natural resources, in particular the diamonds, to go to places outside Sierra Leone in return for help in carrying out their joint criminal enterprise.  It then alleges individual criminal responsibility on behalf of the accused, whether in relation to acts he himself carried out or acts carried out by his subordinates.  It further alleges planning, instigating, ordering etc the crimes which were within the joint criminal enterprise in which the accused participated or were reasonably foreseeable consequences of the joint criminal enterprise.

The charges: there are 17 counts of various different crimes within the jurisdiction of the Court, grouped according to subject matter.  The particulars of the crimes are included within the indictment, and were read and translated for the accused.  Counts are alleged in the cumulative and the alternative.  Those counts are:
* Count 1: Acts of terrorism in violation of common article 3 of the GC, pursuant to art 3 of the Statute, for shootings, mutilations, burnings and so on in various locations across Sierra Leone;
* Count 2: Collective punishment in violation of common article 3 of the GC, pursuant to art 3 of the Statute, for similar acts;
* Count 3: Extermination as a crime against humanity, pursuant to article 2 of the Statute, for acts committed against the civilian population in various locations across Sierra Leone;
* Count 4: Murder as a crime against humanity, pursuant to article 2 of the Statute, for widespread unlawful killing of members of the civilian population in various locations across Sierra Leone;
* Count 5: Violence to life etc especially murder in violation of common article 3 of the GC, pursuant to art 3 of the Statute, for unlawful killing of members of the civilian population in various locations across Sierra Leone;
* Count 6: Rape as a crime against humanity, pursuant to article 2 of the Statute, for widespread rape, including multiple rapes, in various locations across Sierra Leone;
* Count 7: Sexual slavery and other forms of sexual violence as a crime against humanity, pursuant to article 2 of the Statute, for widespread sexual slavery and sexual violence against civilians in various locations across Sierra Leone;
* Count 8: Outrages on personal dignity in violation of common article 3 of the GC, pursuant to article 3 of the Statute, for similar acts in various locations across Sierra Leone;
* Count 9: Violence to life etc especially cruel treatment in violation of common article 3 of the GC, pursuant to art 3 of the Statute, for mutilations and amputations of members of the civilian population in various locations across Sierra Leone;
* Count 10: Violence to life etc especially inhumane acts in violation of common article 3 of the GC, pursuant to art 3 of the Statute, for mutilations and amputations of members of the civilian population in various locations across Sierra Leone;
* Count 11: Conscription or enlistment of child soldiers, pursuant to article 4 of the Statute, for abduction of children and their use in active hostilities at various locations across Sierra Leone;
* Count 12: Enslavement as a crime against humanity, pursuant to article 2 of the Statute, for widespread abductions and forced labour at various locations across Sierra Leone;
* Count 13: Pillage in violation of common article 3 of the GC, pursuant to article 3 of the Statute, for widespread looting and burning at various locations across Sierra Leone;
* Count 14: Intentional attacks directed against humanitarian personnel, pursuant to article 4 of the Statute, for acts committed against UNAMSIL peacekeepers and other humanitarian personnel at various locations across Sierra Leone;
* Count 15: Unlawful killing as a crime against humanity, pursuant to article 2 of the Statute, for unlawful killings of UNAMSIL peacekeepers and other humanitarian personnel at various locations across Sierra Leone;
* Count 16: Violence to life etc especially murder in violation of common article 3 of the GC, pursuant to art 3 of the Statute, for UNAMSIL peacekeepers and other humanitarian personnel at various locations across Sierra Leone;
* Count 17: Abduction and the taking of hostages in violation of common article 3 of the CG, pursuant to art 3 of the Statute, for the abduction and holding as hostages of UNAMSIL peacekeepers and other humanitarian personnel at various locations across Sierra Leone.

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The plea: The Judge then asked the accused if he understood these charges, to which Sessay replied yes he did.  When asked to plead guilty or not guilty, Sessay replied that he had some things to say and explain about the diamonds, but about the atrocities, the burnings, and so on he did not do any of it.  Defence counsel intervened at this point to suggest that the accused did not fully understand the nature of the charges against him.  Judge Itoe said he thought the accused did, as he said he did, but defence counsel suggested that the counts are many and difficult to understand, so suggested the counts be put one by one to the accused, so he could plead to each count (see rule 61(A)(iii), the judge shall “call upon the accused to enter a plea of guilty or not guilty on each count”).  On the basis of this application, the counts were read one by one, with the accused pleading to each charge on an individual basis.

What follows is a highlight of the comments the accused made during this process: he of course pleaded not guilty to each count, as he was not charged with anything specifically related to diamonds and diamonds only, and this was the only thing to which he appeared to want to plead guilty.

In relation to the rape charges, he emphatically denied any guilt at all and said that he took action against men who did that.  In relation to child soldiers he said he never trained anyone.  He tried to plead guilty to count 13 (pillage) on the grounds that he had commandeered vehicles.  Defence counsel intervened and said that did not fit the elements of the crime and that the accused did not understand the nature of the charge.  There was some general discussion as the Court tried  to define pillage (which they never did) and the accused ended up pleading not guilty.

In relation to UNAMSIL, Sessay said he had warned the RUF that it was not a good idea, it was not in their interests, and that he tried to stop it.  He said Sankoh did it against this advice.  He further said that he tried to take the peacekeepers from Makeni to a safe place in Kono, where he had orders from Charles Taylor that they should be released.  He never supported these plans and in fact was the rescuer of the UNAMSIL troops.  He also expressed his confusion about the two murder charges against him in relation to UNAMSIL, that he did not understand why there were all these charges about UNAMSIL.  This is perhaps in part a result of the Judge being confused and asking the prosecution why he had been charged twice for the same thing.  The prosecution replied that he was charged with murder as a war crime and murder as a crime against humanity in relation to peacekeeping and humanitarian personnel, and that the charges were alleged in the cumulative and the alternative and that the position of the prosecutor is that the elements of both crimes were satisfied.  Nevertheless, when the accused mentioned his confusion, there was general merriment in the court, including by court officials, which appears unacceptable behaviour towards a man accused of a crime against humanity who clearly does not understand the elements of the crimes.

Thus the accused pleaded not guilty to each count alleged against him.  He then indicated he wished to make a statement about the diamonds.  The Judge was ready to entertain this request and see its relevance, but defence counsel intervened and said he had pleaded not guilty so we should proceed to the next part, that these are properly matters for trial and not for pre-trial.

After some argument, the Judge agreed and they moved on to the question of a lawyer.  The Judge asked the accused if he wanted to carry out his own defence, rather than asking “Do you want a lawyer”.  Defence counsel again intervened and said that the judge has a statement of means and a request for assignment of counsel from the accused, and he should rule on that basis rather than going through all this again, particularly given the gravity and complexity of the charges against the accused.  Judge Itoe said that he thought it proper to ask the accused if he wants a lawyer, since he may have changed his mind, so he asked Sessay if he wanted a lawyer, to which Sessay replied yes, he would get a lawyer.

The matter was stood down until later in the afternoon, when the judge would rule on the requests.  Judge Itoe told the accused that he should go back to his cell and he would be recalled for the issuing of the order later in the day.

Later in the day, when the case was reopened, the Judge dispensed with the presence of the accused, saying it was not necessary in the interests of justice.  This could potentially be a breach of the right of the accused to be tried in his presence (see the Statute), especially since the Judge had told the accused that he would be recalled to hear the order made in relation to his case.  In any case, the judge went ahead and made his order as follows: pursuant to rules 45bis, 61 and 64, the Registrar is to provide legal assistance to the accused as necessary pending further investigation of the accused’s means.  The accused will be retained in detention on remand.  The matter was adjourned until Thursday, 20 March 2003.

Case No. SCSL06: The Prosecutor v Alex Tamba Brima (aka Gullit)
Alex Brima appeared to be very young, very scared and quite bewildered by his surroundings.  When asked his name, he appeared confused, although he did confirm his name was Tamba Brima.  One possible reason for the confusion – which was evident in all the questioning of accuseds about their name – was the reading of “AKA” as if it were a word rather than spelling it out.  This also confused the interpreter, who asked Sessay if his name was “AKA Sessay".  At this point the defence intervened to make application for an interpreter.  The Judge asked Brima’s level of education, to which the defence counsel replied that the accused had requested an interpreter and she considered the trial process would be better understood by the accused if he had one.  The Judge at first granted the request, then withdrew that, saying he would rule on the matter on Monday and the case would be adjourned until then.  There was no opportunity for anyone to explain to the accused in Krio what was happening as he was led from the courtroom, although presumably his counsel told him later.

Case No. SCSL07: The Prosecutor v Morris Kallon
Morris Kallon’s case was called before he was actually in the courtroom.  Fortunately, somebody realised before they started proceedings, and they therefore waited to call the case until he was actually there.  He appeared to be very reluctant to come to the courtroom and was also visibly nervous.  He confirmed his name, then defence counsel made an application for an interpreter, as the accused had stated he only understands Krio, that throughout their interview with him he expressed a wish for an interpreter and the Court should not proceed in a language the accused does not understand.  The Judge said he would rule on the matter on Monday and would adjourn the case until then.  Again, there was no opportunity for anyone to explain to the accused in Krio what was happening as he was led from the courtroom, although presumably his counsel told him later.

Following the issuing of these orders, the Judge adjourned proceedings so that they could consider some matters in camera.

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** From Alison Smith (alison@sensible.it), who observed the initial appearances on behalf of the Office of the Attorney-General and Minister of Justice.  The views in this report are the views of the author and in no way reflect the opinion or views of the Government of Sierra Leone in its entireity or any part thereof.