Prosecuting International Crimes in Africa - PULP - University of ...

Sentencing practice of the Special Court for Sierra Leone 137
Like the ICTY and the ICTR, the SCSL Trial Chamber has held that
aggravating factors must be established by the Prosecution beyond
reasonable doubt and that only circumstances directly related to the
commission of the offence the accused person is charged with and for
which they are subsequently convicted, could be considered to be
aggravating. 128 The Trial Chamber has also held that if a particular
circumstance is an element of the underlying offence, it cannot be
considered to be an aggravating factor. 129 To that end, if an accused person
has been found guilty under article 6(3) of the Statute of the SCSL, his
leadership position cannot be taken as an aggravating circumstance as it is
in itself a constitute element of the offence. 130
The aggravating and mitigating circumstances to be taken into account
by the trial chamber are not exhaustively set out in the Rules of Procedure
and Evidence and accordingly, the Trial Chamber is reminded to weigh up
the individual circumstances of each case. 131 The Trial Chamber has taken
into account mitigating factors in its sentencing decisions such as remorse,
lack of formal education or training, individual circumstances, subsequent
conduct and lack of prior convictions. 132 The Chamber has held that
mitigating factors must be established by the defence on a balance of
probabilities, 133 placing a much lower burden of proof on the defence as
required of the prosecution in its establishment of aggravating
circumstances.
The prosecution in the Brima case submitted that no mitigating
circumstances existed as he did not cooperate with the prosecution or
expressed any remorse 134 and further that there was no evidence that he
acted under duress. On the contrary, the Brima defence submitted that he
was of good character with a history of philanthropy as well as no prior
criminal record. 135 In its final determination, the Court outrightly rejected
the Brima defence’s argument that Brima’s service in the Army was a
mitigating factor. 136 The Chamber also came to the conclusion that the
statements made by Brima at the sentencing hearing could not be accepted
as genuine remorse and were accordingly disregarded as a mitigating
factor. 137 In respect of Kamara, the Trial Chamber came to the conclusion
128 CDF Sentencing judgment para 36.
129 As above.
130 CDF Sentencing judgment para 38. Art 6(3) provides that ‘[t]he fact that any of the acts
referred to in articles 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’.
131 AFRC Sentencing judgment para 21.
132 CDF Sentencing judgment para 40.
133 As above.
134 AFRC Sentencing judgment para 58.
135 AFRC Sentencing judgment para 61.
136 Para 64.
137 Para 67.