Table of contents:
Element:
On that issue, the Sesay, Kallon and Gbao Trial Chamber found:
"However, we find that these threats made to the captives do not suffice to prove the remaining elements of Count 18. The offence of hostage taking requires the threat to be communicated to a third party, with the intent of compelling the third party to act or refrain from acting as a condition for the safety or release of the captives.
"There is no evidence that the RUF stated to the Government of Sierra Leone, the UN or any other organisation, individual or group of individuals that the safety or release of the peacekeepers was contingent on a particular action or abstention. There is similarly no evidence of any conduct on the part of the RUF which could be construed as implicitly threatening to a third party that the peacekeepers would be harmed or communicating an implicit condition for their safety or release."[1]
The Chamber also stated:
"We find that there is no evidence that the RUF proposed any conditions pertaining to Sankoh, entered into negotiations with any entity, or communicated or interacted with any third party in a fashion that could be construed as impliedly creating a condition for the safety or release of the peacekeepers. Instead, the evidence shows that one group of approximately 40 to 50 peacekeepers were released from Yengema about five days after Sankoh's arrest and a further group of similar size were released about a week thereafter. Accordingly, the Chamber is of the view that the threats made to, and mistreatment inflicted on, the peacekeepers after 8 May 2000 were personal reactions of the RUF fighters to the arrest of Sankoh and did not form part of a concerted plan of action to secure his release.
"Similarly, the Chamber finds that the Prosecution has not established that the RUF detained the peacekeepers with the intention of compelling the Government of Sierra Leone and the UN to halt the disarmament process or to continue it according to conditions set by them."[2]
However, the Appeals Chamber dismissed that conclusion:
"A review of domestic legislation also leads to the conclusion that the communication of the threat to a third party is not an element of the offence. A large number of States' legislation does not include communication of the threat to a third party as an element of the offence; others explicitly state or implicitly suggest that no such requirement need be proven. [...]"[]"[]
"There is no requirement in the jurisprudence of the ICTY that the threat has to be communicated to a third party. It suffices that the threat be communicated to the detained individual."[3]
"With the change in the law and rendering of the taking of hostages unlawful, the requirement of communication falls away. The logic that applied at the time of the lawful taking of hostages is now moot.
"Accordingly, the Trial Chamber erred in introducing into the elements of the crime a requirement that the threat must have been communicated to a third party."[4]
Footnotes:
[1] SCSL, Sesay, Kallon and GbaoTrial Judgment, 2 March 2009, paras.1964-1965 (footnotes omitted).
[2] SCSL, Sesay, Kallon and GbaoTrial Judgment, 2 March 2009, paras.1967-1968.
[3] ICTY, Sesay, Kallon and Gbao Appeal Judgment, 26 October 2009, paras.582-583.
[4] ICTY, Sesay, Kallon and Gbao Appeal Judgment, 26 October 2009, paras.585-586.
