The transcripts of the trial of Charles Taylor, former President of Liberia. More…

  • [Open session]

  • [In the presence of the accused]

  • [Upon commencing at 9.02 a.m.]

  • Good morning. I'll take appearances, please. Ms Hollis?

  • Good morning, Madam President, your Honours, opposing counsel. This morning for the Prosecution, Brenda J Hollis, Nicholas Koumjian, Mohamed A Bangura, Ruth Mary Hackler, Ula Nathai-Lutchman, Nathan Quick, and we are also joined by, as always, our case manager, Maja Dimitrova and two interns, James Pace and Nadeah Vali.

  • Thank you. I see you're getting to your feet, Mr Anyah.

  • Yes, good morning, Madam President. Good morning, your Honours. Good morning, counsel opposite. Appearing for the Defence this morning, Courtenay Griffiths QC, Terry Munyard, myself, Morris Anyah, Silas Chekera. We are joined by our legal assistants, Ms Logan Hambrick, Ms Kathryn Hovington, Ms Kimberley Punt, Ms Szilvia Czevar and Mr Michael Herz. Also here with us is our intern Mr Peter Mwesigwa Katonene, as well as, last, but not the least we are joined by our case manager, Ms Salla Moilanen.

  • Thank you, Mr Anyah, if there are no preliminary matters, we will proceed. Mr Koumjian, you're getting to your feet. You're addressing us.

  • Good morning, Madam President. Good morning, your Honours, and good morning to the staff of the Chambers, the Registry and to the members of the Defence team.

    Your Honours, I'd like to begin this morning predicting the future, and it's not because I have any special powers and I'm not very smart, but I've listened to the evidence in this case over three years.

    And what I want to predict to you is that yesterday, Justice Sebutinde asked a question that goes to the very heart of this case. And that question was: Where are the documents that show Charles Taylor met with Sam Bockarie in 1998?

    Because one thing both sides agree on, Charles Taylor was meeting with Sam Bockarie in 1998, and the Defence correctly stated that this time period goes to the heart of this case, it goes to the heart of the crime base and to the time leading up to the horrendous December 1998 offensive and the offensives on Freetown, the attacks in January and February of 1999.

    The reason I can predict the future on this is because I've listened to all the evidence, and we've seen in three years of evidence that's been - what has been presented in 16 months, we've seen the Defence case. For seven months, Charles Taylor testified and the Defence, as Defence counsel pointed out had access to a great number of documents and they presented a great number of documents, but what they will not be able to tell you this afternoon, what they will not be able to point to, is a single document that shows Charles Taylor met with Sam Bockarie in 1998. They may throw some other document, exhibit numbers, at you that talk about the Lome negotiations, they may talk about the fact that documents that show that the international community was begging Taylor to stop the RUF attacks in January and February 1999. There is no question and there never has been, people in the international community and even in the Government of Sierra Leone went to Charles Taylor in order to influence the RUF, because they knew he was the one behind the RUF, he controlled the RUF. When the peacekeepers were held hostage, of course the United Nations and others went to Charles Taylor to get them released. They knew he was the one that could get the peacekeepers released.

    But, your Honours, look at whatever answer, if any, the Defence gives you to Justice Sebutinde's question. They will not show you a document about Charles Taylor meeting with Sam Bockarie in 1998. And then you must ask: Why not? And the answer is obvious: Because as shown in the Prosecution evidence, Charles Taylor was meeting with Sam Bockarie to plan the war, to plan the offensives, to receive diamonds, to use some of those diamonds to finance the RUF, to obtain ammunition for them from his own stocks and from - Liberia clearly does not produce ammunition but from other countries, including through Burkina Faso, which also does not produce ammunition but which the evidence shows and the Defence brief seems to concede was where this huge amount of ammunition from 1998, late 1998, came to the RUF, from Burkina Faso through Roberts International Airport, to Buedu. This was the ammunition Issa Sesay said the RUF was out of ammunition, it was the ammunition from Liberia that made that December 1998 offensive possible.

    Now, this is particularly significant, the lack of such a documents, because of what Charles Taylor testified to. He told you that all of his meetings with Sam Bockarie were transparent and were open, that it was done with the consent of everyone. Even though Sam Bockarie was on the United Nations travel ban, he said the UN knew about it, ECOWAS knew about it, Kabbah knew about it. According to Charles Taylor, he was playing a mediating role, so one would certainly expect that there would be documents about this noble role played by Charles Taylor, there would be correspondence where Taylor would explain, as a mediator, what was the position of the RUF, what had transpired during those meetings. If he says he had the consent of the United Nations, where is the documents showing the exemption from the travel ban? Where are the reports from the United Nations office in Sierra Leone or especially Liberia showing that, oh, President Taylor informed us about his meetings with the notoriously as the Defence says, Defence says sometimes wicked, Sam Bockarie.

    Your Honour, I've read the Defence brief, the 800 or now 600 page brief. There is no mention of such a document, and I've listened to six hours so far of Defence oral arguments. There is no mention of such a document, despite the fact that we pointed this out in our final brief and in our oral arguments given on 8 February. Also, yesterday evening we received the Defence response to our final brief. There is no mention of any document proving that Charles Taylor - or showing that Charles Taylor met with Sam Bockarie. There is no doubt he did meet with him. In fact our evidence shows clearly he met with him more often than he said and he met with him much earlier than Charles Taylor's latest version. You recall Charles Taylor's meetings with Sam Bockarie evolved during his testimony to - end up being September, October and late November 1998 while on the first day of his testimony, after preparing for weeks, really preparing for years, for this case, he told us that the first time he met with Sam Bockarie was in late 1997 or early 1998. He gave you details about that and he even gave you the name of the general he sent, Christopher Varmoh, Liberian Mosquito. Later, the story changed to Dopoe Menkarzon in September 1998.

    Now, this is also significant because the Defence has shown in their oral argument placed so much emphasis on the documents that they say abundant documents that show Charles Taylor's role as a peacemaker. But what do these documents actually show? Again, they show that publicly, he was denying his link to the RUF. We knew that and we presented evidence of it. In fact, the evidence shows when people threatened or were in a position to expose his links, they were arrested and thrown out of the country like Sorious Samura or some journalists arrested and tortured or the less fortunate, like Sam Bockarie, killed. And like Sam Bockarie, Charles Taylor didn't take any chances, and his limitations were not limited by any moral considerations. Not only was Sam Bockarie killed, he killed his mother, he killed his wife and he killed his children.

    Now, the Defence exhibits, of course, are going to show attempts to involve Taylor in negotiations, just as Slobodan Milosevic, for example, was invited to Dayton. When you know an individual is controlling forces, despite the fact that he may deny it or may deny any de jure title that's the person you need to involve in the negotiations because that's the person who can make the decision.

    It would be exactly the same, just to use a current example, with negotiating with the Government of Libya today, Colonel - Charles Taylor's comrade, the person he trained under in Libya, Muammar Gaddafi, claims he has no title and no authority, but of course if one wanted to negotiate with the Government of Libya or obtain a result, one would have to go through Muammar Gaddafi.

    None of these Defence documents that were presented helped the Defence, and in fact, when viewed in totality they show just the opposite. Charles Taylor always tried to publicly portray himself as something he wasn't, and he knew, and he's correct, he's an intelligent man, he can be very charismatic, and intelligent and charismatic people can fool some of the people some of the time, or even if they are very intelligent and very charismatic, many people many times, but he can't fool all the people all the time and he's counting on the fact that he can fool you, and I don't believe that he can.

    The Defence talked a lot about, and placed great reliance in, some cables by the special representative to Liberia, I believe appointed sometime in 1997, but at least through - was there at least after the Freetown invasion, we saw cables from 1999 yesterday that were presented. And that is Felix Downes-Thomas. Now, the Defence has said that Felix Downes-Thomas was much maligned by the Prosecution but, in fact, Felix Downes-Thomas's objectivity is maligned by the Defence's own documents. And I'd like to particularly draw your attention to three of those that show this.

    The first, and I don't think it's necessary to put it on the screen in the interests of time, is D-192, which your Honours may remember was a cable that Downes-Thomas sent to New York, it's dated the 30th of March 1999, and in that cable, Downes-Thomas complains bitterly about another report that he had received of a visit from a UN political officer assigned to Sierra Leone who had come to Liberia and had written a report talking about the links of Charles Taylor to the RUF, specifically discussing links between Taylor and a Mr Ratcliffe [phon], the diamond dealer, the fact that Sam Bockarie had been in Monrovia, the fact that Johnny Paul Koroma's wife was in Monrovia, and that arms and ammunition were being stockpiled there, reportedly to be used for an attack, again, on Sierra Leone, remember the date of this is March - the date of this document is the 30th of March, 1999. We've received evidence in this trial, both from the UN panel of experts, I believe that's P-18, about that March 1999 shipment, which was Ukrainian arms routed through Burkina Faso. We even had the testimony of a witness who was present on that delivery of arms from Burkina Faso to Liberia, and then onwards, most of them, or at least a truckload of them, onwards to Sierra Leone with Sam Bockarie.

    Now, it's interesting that, when you read this cable, Downes-Thomas is very much annoyed with the fact that another report from the UN is showing Charles Taylor's links to the RUF rebels. His reaction is not to investigate it or try - but of course, he's not an investigator, he's simply a diplomat. His reaction is simply to complain that this is his turf and the others should stay out of it. It's interesting, though, that we don't have that other cable which was apparently copied to Felix Downes-Thomas, because you will recall that Charles Taylor told us he had a special agreement with Felix Downes-Thomas to give him all the cables related to Liberia. Why don't we have that cable? Well, as counsel pointed out in his argument, you will recall before the start of the case, it was revealed that the Defence had, I think a number that was said at the time was 50,000 pages or somewhere in the testimony was dozens of boxes, of documents from Charles Taylor's personal archive, and the documents that we've seen in court is obviously a very small portion of those. Now, the Defence does not have a rule 68 obligation, that's absolutely clear, and they don't have to give us or allow us to look through those documents and find those that are incriminating but what your Honours have to consider in weighing these documentary evidence from the Defence is that it was cherry-picked. This is not the entire personal archive of Charles Taylor. These are the documents that the Defence picked out that they thought would help him.

    And so, for example, this cable from the Sierra Leone officer is not going to be included.

    There's two other documents in weighing Downes-Thomas's - what weight to give to his cables that the Court should consider, two other Defence documents and one of them was a document D-402B. If you look at that document, your Honours, on page - the page has the stamp number 203, it says, that logging money in Liberia was being paid to the head of the UN in Liberia, and also to another UN official in New York. This is a Defence document. Which apparently shows that at least there was the perception, at least, the perception that this diplomat was on the payroll of Charles Taylor.

    Now, thirdly, the third factor that your Honours have to consider in weighing these cables by Mr Downes-Thomas is that we saw confidential United Nations documents, some of them marked "eyes only" that Charles Taylor said, "Oh, Downes-Thomas agreed to give me confidential UN documents marked eyes only." And that certainly should raise questions about whether Mr Downes-Thomas was playing an appropriate role. It's common for diplomats to become close to the governments in the places that they are posted. That's one reason diplomats are rotated, despite the lack of knowledge you lose by rotating diplomats, you want to avoid the fact that people tend to have a - what they sometimes call a home bias. And certainly it's our position that Charles Taylor is not going to tell any UN official the truth about his role with the RUF, but there is absolutely nothing in the Defence documents that proves that Charles Taylor was what he has testified to, playing a peacemaking role in 1998. Not only is there a complete lack of documents showing the meetings with Sam Bockarie, but we haven't seen any document about any actions taken by the Liberian government against RUF or Liberian citizens with the RUF, any criminal actions, any arrests, any attempts to deter them and we have abundant evidence that the RUF was travelling freely to Monrovia during Charles Taylor's presidency.

    In one of the letters that Taylor wrote Kabbah, he talked about the obligation of each of the members of the Mano River Union to take action against any dissidents against the others. We also know that Charles Taylor talked about the mercenary laws of Liberia which require that any Liberian that is serving as a mercenary is subject to criminal prosecution, but we have evidence of people like John Vincent, for example, travelling not only travelling back to Liberia freely but then being put immediately into Charles Taylor's SSS. We have Issa Sesay talking about how he travelled freely to Liberia. He was absolutely had no worries about going and staying in a hotel for a week in April 1999. Isatu Kallon, Liberian, a person who lived years and years in Liberia, Daniel Kallon, were travelling to Liberia, according to the Defence's own evidence. Daniel Tamba was travelling back and forth to the RUF, Issa Sesay said bringing rice, I think. But of course, John Vincent let the cat out of the bag on that and said he was bringing ammunition. And then as the Defence took another U-turn late in the case, DCT-008 said yes, Jungle, Daniel Tamba was bringing ammunition to the RUF, exactly as the Prosecution witnesses had been testifying throughout 2008. Not only Daniel Tamba, he said Sampson and Zigzag Marzah were carrying ammunition to the RUF.

    Were any of these people, any of these RUFs, Sam Bockarie, or Issa Sesay, Isatu Kallon, Daniel Tamba, John Vincent, remember Superman went for medical treatment in Liberia, was anyone ever arrested? No. When this report came out, after this report can out from the Sierra Leone political officer about possible links between Taylor and Ratcliffe, a diamond dealer with the RUF, you recall that Charles Taylor testified he expelled this man Ratcliffe and an Australian, I think he tried to claim Ratcliffe must have been a British secret agent and the RUF people that they were associating with. Well, what happened to them? Why weren't they arrested? There is not one bit of evidence, and I believe I asked Issa Sesay or one witness about this, there is no evidence, perhaps it was Charles Taylor, no RUF, no RUF, were ever arrested in Liberia. Charles Taylor never did anything to stop their actions because, actually, the evidence shows exactly the opposite, he was continually facilitating, he was the main facilitator of the RUF and he was the one arranging the arms. He's not going to arrest Daniel Tamba, Zigzag Marzah, Sampson, for taking arms and ammunition, excuse me, to Sierra Leone because they are doing it under his orders.

    Another very interesting piece of evidence, and understandably the Defence tried to make the most of, is the fact that the - when the United Nations suffered the huge indignity, the embarrassment, the shame, of having 500 peacekeepers captured by the RUF in May 2000, you recall the testimony is that they were held for several weeks, Issa Sesay told us that. And there is no doubt, there is an agreement, that Charles Taylor talked to Issa Sesay and the peacekeepers were released. Well, I mean, it's a good thing, we are certainly all glad, everyone was glad that the peacekeepers were released, but what does this show? Why did Issa Sesay only release the peacekeepers when he talked to Charles Taylor? And let me make our position clear. I think I've said it before, but at this time, there is no doubt Issa Sesay was a puppet of Charles Taylor. Issa Sesay did what Charles Taylor told him to do, because Charles Taylor, as all the RUF knew, was the sponsor of that organisation.

    Issa Sesay could not explain why it was only when Taylor asked him to release the peacekeepers that he did so and there are several contradictions between Sesay's account of the release and Taylor's. First of all, Charles Taylor testified that he called Issa Sesay on a satellite phone, which is consistent with the Prosecution evidence, and this was on 18th of August, page 27062 and 63, that he said that. Issa Sesay denied it, said he never spoke to Charles Taylor on the phone. No, he had no phone to talk to Charles Taylor, never spoke - he got a message from someone by radio, I believe it was Dennis Lansana, Monkey Brown, that oh, you have to go to see Taylor and what does he do? He goes to see Charles Taylor. The whole world is waiting for those peacekeepers to be released. According to Issa Sesay, well, no one asked me to release them. Although he says he knew that General Garba wanted the peacekeepers released.

    And the other thing that remains unexplained: Why would the peacekeepers be taken to Monrovia to be released? If you recall, it came out in the testimony of Issa Sesay, before the Zambians and Kenyans and this large group of about 500 were captured on about, was it the 5th of May, early May, I think it was around the 1st of May, just before that, a company of 200 Nigerians were held, were captured, and Foday Sankoh ordered their release and they were released in Sierra Leone. Why did these troops have to be released through Monrovia? They could have been flown to Bo, they could have been flown to Freetown, they could have simply driven to any of those locations. Why did they have to go to Monrovia? Well, it's because it's absolutely consistent with the Prosecution evidence. Charles Taylor, no fool, very aware of the negative public image he had and trying again to portray himself as a peacekeeper, wanted to get publicity, that, oh, he arranged for the release of the peacekeepers. Come, have them come to Monrovia, have his picture be taken, have it shown that he is the one that released the peacekeepers but in truth what this evidence shows clearly, especially when you hear Issa Sesay's explanation, Charles Taylor held the keys to the prison for those peacekeepers and when he decided to turn the lock, they were released.

    According to one of the documents that the Defence presented, and according to Charles Taylor's own testimony, and this is D-244, Charles Taylor held intense negotiations with the RUF about the release of the peacekeepers. Intense negotiations. And then we have a document which is - I believe it's D-243. Could that be put on the screen, please? We have a document D-243 which was put into evidence during the direct examination of Charles Taylor. Charles Taylor testified it came from his personal archive, that he had received this letter from Issa Sesay. And if you read the letter, I'm not going to take the time to read it all, it's extremely well-written, and if we look at the second page of that letter, please, we see that there is a list of eight demands being made regarding the release of the peacekeepers. This letter is dated 11 May, so this is before the peacekeepers are captured, just, excuse me, before they were released about a week or so after they are captured and just three days after the capture of Foday Sankoh at Spur Road. Foday Sankoh is in prison. Now, what's very interesting about this, Issa Sesay denies it. First of all, when he's asked, what did you demand to get the peacekeepers released, what were your negotiations? He said he made no demands. Why did you release them? Well, because Charles Taylor told me to. Well, why? Well he was the first one, Issa Sesay claimed, to ask me to release them. That's why Issa Sesay tried to claim as why he released them. He released them because his boss told him to. Charles Taylor held the keys until it was politically advantageous for him to play the role of a peacekeeper and have them released. But there's another -- please don't leave this document. If we can go to that second page again, there is something else very interesting, and if we go down to the signature or lack of it.

    First of all, there is no signature. Charles Taylor says he has a letter from Issa Sesay that's not signed. Now, your Honours, the Prosecution has presented letters that were seized, for example, from RUF offices that are not signed. And it does make sense that the person sending a letter, especially if you don't have a copy machine, especially if they are type written, would have a copy for their own files, the sender, not signed. You sign the letter you send and the unsigned letter remains in your files. But how can the receiver have an unsigned letter? Who gets a letter in the mail, an important letter like this, addressed to the President of a country, that's not signed? And what else do we notice about this extremely well-written letter, perfect with -- the spelling is perfect throughout the letter, until we get to the name of Issa Sesay. Issa Sesay told us repeatedly, everyone in the RUF knows I spell my name I-S-S-A. Everyone in the RUF. No one in the RUF would spell my name E-S-S-A. We know that's like a spelling used in some other countries, like the Gambia, for instance. And what's also very interesting about that E-S-S-A spelling, that's exactly the spelling on the document P-28 that was prepared, clearly by Benjamin Yeaten's adjutant, that's a document with the final signature of Benjamin Yeaten, but signed above it Issa Sesay spelled exactly the same way. E-S-S-A. And even the last name is misspelled. It's got two Ss, E-S-S-A. So what - who wrote this letter? Issa Sesay says he made no demands. Issa Sesay says he didn't sign it. It's not even his name spelled correctly. What it shows is Charles Taylor, through his government offices, was manipulating this entire crisis. He was directing the RUF not just militarily, he directed them politically, as he did at the time of the Abidjan Accord.

    Defence counsel pointed out it's absolutely clear, and we certainly agree with this, Foday Sankoh used the Abidjan Accord with absolutely no intention to abide by it. We agree on that, but what the Defence doesn't mention is he got that instruction from Charles Taylor. Two witnesses talked about that, TF1-516 and Augustine Mallah, they both heard it. TF1-516 remember Charles Taylor tried to rebut that testimony by saying, ah, but he said I was in Gbarnga, this is 30 October or late October, excuse me, this was just before the signing of the Abidjan Accord so this was November 1996, I was in Gbarnga. Well, unfortunately for him, his next witness, Yanks Smythe, happened to mention, yeah, there was an assassination attempt against Charles Taylor on 30 October 1996. He had been on the Council of State Monrovia. After that attempt he moved back to Gbarnga. So exactly as 516 said, he was in Gbarnga in November 1996.

    Of course, Charles Taylor would try to distance himself from Foday Sankoh at that time, because this is after, by now, the RUF is notorious as Defence, I believe, has admitted in their closing arguments. This is after Operation Stop Elections. So Charles Taylor's ties to the RUF are going to be like his meetings with Sam Bockarie, clandestine. Unfortunately, little bits of the evidence of those ties was also revealed in the Defence case. So, for example, we had evidence from a Defence witness, the RUF spokesperson, that he was invited in, I believe it was, 1996, in the middle of 1996, to Gbarnga, Charles Taylor invited him to his headquarters, and he was there for weeks. It may have been 1995. He was there for weeks with Charles Taylor in Gbarnga and then he went along with Charles Taylor to where? To Accra, Ghana. What's the significance of that? Well, first he said he wanted to show me peace talks, but then it turned out, well, there were no peace talks. In fact there is absolutely no evidence of any peace talks in Accra, Ghana, at that time.

    But what was in Accra, Ghana? What could Charles Taylor show the RUF in Accra, Ghana, we know that Accra, Ghana, was the headquarters, was the base of Muammar Gaddafi's representative for the region. Mr Talibi, he was based in Accra, Ghana. Another bit of interesting evidence slipped out. Defence notes at the same time Foday Sankoh is signing the accord, he's sending one of his officials to go, excuse me, to Monrovia to buy ammunition from an ECOMOG. Well, as counsel pointed out, Foday Sankoh was cut off in Sierra Leone when the border was closed by ULIMO. We may disagree within months about when that was but sometimes in 1993, Foday Sankoh was cut off and he was in Sierra Leone. He wasn't travelling to Liberia and certainly Charles Taylor, trying then to win the presidency, we agree on that, we would say lying low, lying low on his violent tendencies at that time, wouldn't want to have Foday Sankoh seen in Liberia. But they are in contact, that's our evidence, there's regular contact.

    And what is it that Foday Sankoh tells this official that he sends? He says he's there with one of Charles Taylor's commanders, Saye Boayou. This witness didn't know it, DCT-292, but two of the Defence earlier witnesses had identified Saye Boayou as one of Charles Taylor's generals. So the person who was to arrange the purchase of ammunition in Monrovia was one of Charles Taylor's generals.

    And another little piece of evidence that I found interesting listening to Issa Sesay, there is also an agreement that Foday Sankoh gave about $7,000 to Sam Bockarie to buy ammunition from ULIMO. Now, the Defence keeps talking about ULIMO as the enemy of Charles Taylor, but remember there were two factions, and ULIMO-K had reached certain agreements with Charles Taylor, including in April 1996, together they had wreaked carnage on Monrovia and attacks on Roosevelt Johnson. Together ULIMO-K and the NPFL allied and they also had agreements about the free movement that's in evidence at some point.

    But what was interesting is Sam Bockarie, Issa Sesay said he said he didn't want to go buy. It would be too dangerous. How can I go to my former enemies, ULIMO, to buy ammunition and Foday Sankoh said, don't worry, it's going to be all right. How did Foday Sankoh know that? It would make sense he knew that because it was arranged by the NPFL by Charles Taylor, they are the ones with the contacts with ULIMO.

    Now, I'd like to go back to the one document that the Defence seems to pin all their hopes on, they raised it again the other day, that's D-7, if we could have that on the screen because, remember, in Charles Taylor's corrected version, the first day of his testimony, of course he said he met Sam Bockarie in late 1997, and/or the beginning of 1998, but then it became September, October, November. And the Defence counsel says this document somehow the Defence - it seems to have changed in the closing argument, closing argument seems to be that this document shows Eddie Kanneh had to go all the way to Conakry to travel to Monrovia, but if you remember Charles Taylor's testimony, supposedly their interpretation of this letter at that time is, oh, this is a letter that says that Sam Bockarie wants to meet Charles Taylor. So this is why I invited Sam Bockarie, this is why I sent Dopoe Menkarzon to get Sam Bockarie. I don't have to read it word for word, but if someone was carrying a message Sam Bockarie wants to meet Charles Taylor, it would say that and it doesn't say that at all. What's clear from the letter - it's not clear where Eddie Kanneh's travels originated - at the time he's writing the letter he's in Conakry. How he got there, when he got there, we don't know. What we do know, though, is that some SLA officers at various times, after the intervention in particular, had run away and some of them were in Guinea, some of them went to Monrovia. Going to Monrovia could be dangerous if you were seen as someone who was on the wrong side of the SLA divide. Remember, there were some SLAs that were loyal to Kabbah.

    We have evidence that Charles Taylor had, through Foday Kallon, sent others, SLA officers back to the RUF. We also have evidence that some were threatened with death like 539 unless they could prove their loyalty to the RUF. We have evidence that Moses Kabia or AFRC Rambo was killed in Monrovia. That came from 539 and another witness whose name I can't - number I cannot recall at the moment, I believe it may be Samuel Kargbo. But Moses Kabia was killed in Monrovia. So what does Eddie Kanneh - if we could have the letter back on the screen, what - the point he wants to make first of all is, hey, to the - to the Charles Taylor government, I'm loyal to the junta. That's part of his bona fides with the Charles Taylor government. Of course, the junta is illegal, the world is against it, especially ECOWAS, they've tried to overthrow a legitimately elected government, but this person, Eddie Kanneh is saying to Charles Taylor's government, hey, I'm okay, I'm with you, I'm with the junta.

    And then most importantly, if we go to the last paragraph, what's absolutely clear and counsel simply avoided answering because the Defence cannot logically answer it, but they have two more hours this afternoon to try if they would like to, it lists Sam Bockarie as a contact person in the country. He's not one of the six people that are travelling. Well our evidence is clear: Sam Bockarie had already been to Monrovia, in fact he'd been there, originally with Varmuyan Sherif. And it's quite apparent that Eddie Kanneh knew that. That's why he put down the contact persons, the ones that can prove my bona fides with your government, Charles Taylor's government, are Varmuyan Sherif, Sidiki Janneh, which we think is the same person that, in Varmuyan Sherif's testimony, he said was Sidiki Kanneh one of his men working under him, and Sam Bockarie. Sam Bockarie's a contact person with the Liberian government. According to Charles Taylor he had never met Sam Bockarie before September, he had no contact. Why would Eddie Kanneh put his name down as a contact person? It's absolutely clear, this letter that the Defence places so much reliance on, proves the lie of Charles Taylor's testimony. At least the corrected version about when he met Sam Bockarie, that he didn't meet him until September. It's consistent with what he said the first day of his testimony, which was that he met Sam Bockarie in late 1997 or early 1998.

    Now, let's contrast just for a moment these complete lack of proof of anything of significance from the Defence documents. In fact, what we say is that when looked at objectively and with analysis, the Defence documents absolutely prove that Charles Taylor is lying and that he was supporting the RUF. They clearly show he was lying in trying to say that he was openly meeting with Sam Bockarie.

    Let's just look at one Prosecution document to see the difference in proof, P -- well, it doesn't have to be put on the screen. I'm just going talk about it, P-67. This is a report from the Black Revolutionary Guard, you remember we heard about the Black Guard and there was testimony that came out in the cross-examination of Issa Sesay that this Guard was originally known as the Revolutionary Guards and that's in document P-561B, which is confidential. This is a document, that we have evidence from Tariq Malik, was seized from Sankoh's house, and further, this is a document that two witnesses talked about and that is TF1-567 who said that the document was written by a group including himself and was given by Junior Vandi to Foday Sankoh, and another protected witness in January said the same thing, that this letter was given in early 1999 during the Lome negotiations by Junior Vandi, the same name, to Foday Sankoh, and what does this document say? I hope I have it with me.

    If your Honours would, when you're reviewing the case, go to the third page, what the document says is:

    "Immediately Freetown and the provincial headquarters fell in the hands of ECOMOG. The high command was called to report by the President of Liberia, Mr Charles Taylor, wherein the President seriously briefed the high command and gave him the confidence that he should not give up but to keep up the struggle and uphold the revolution until the leader returns.

    "The President gave full assurance to the high command and promised to give the maximum support to the RUF. The President also took an oath that he will never betray his brother, Foday Sankoh. From that point, the President gave huge quantity of logistics, ammunition, to the high command."

    That's what it says. Then it goes on on page 4 to talk about diamonds being given by General Ibrahim and Sister Memuna, diamonds to Charles Taylor. And I'm not going to go through them again because I'm not getting even close to finishing what I had hoped to today. I only have ten more minutes but in documents D-8, P-63, they also talk about these same diamonds taken from Johnny Paul Koroma, 1832 diamonds being taken by Jungle and Ibrahim to the father across, to Charles Taylor.

    Now, in the short time that I have remaining, I just want to mention a little bit about the star defence witness, Issa Sesay. Your Honours, we think it is perfectly - it was very appropriate for Issa Sesay to be the witness who testified the longest for the accused, and for the Defence to place so much reliance upon him. In our rough count by one of the members of our office of one of the versions of the Defence brief, Issa Sesay was cited 417 times in the footnotes and my question for the Defence is: Do you want the Court to believe Issa Sesay? Because what is the evidence from the Defence case? Issa Sesay is a mass murderer, he's a killer, he's a ruthless killer, he's a rapist. We know from the Prosecution evidence, and even from his own evidence, he's a child abuser in the sense of child soldiers. And he's a child abuser, from the Prosecution evidence, in the sexual sense also, from private testimony of a protected witness.

    Issa Sesay, according to Fayia Musa, was the person who ordered him beaten with a belt buckle till blood ran down his shirt. According to DCT-292, he talked about the evil Sam Bockarie, and the Defence concedes how evil Sam Bockarie - they mention a few of his acts. They don't even bother to mention that Sam Bockarie is the kind of man that can bury a one-year-old child alive, or that Sam Bockarie as TF1-303, one of the last witnesses, said gave a toward to her captor that said, Stop killing people, start amputating. Start putting locks on their jaws. Why? Because it will create more fear. As Issa Sesay said Sam Bockarie was a man who was evil and proud of it and made him feel proud of himself, made him feel powerful.

    Issa Sesay, according to DCT-292 another Defence witness, not one of those held in the goat pen and tortured by Issa Sesay and Sam Bockarie, but DCT-292 said, I said, who was more ruthless Sam Bockarie or Issa Sesay? He said, well, I'd have to say Issa Sesay was more ruthless. And Issa Sesay came and was caught in so many lies, unfortunately, I don't have time to go through them, but one of them was his claims, many Prosecution witnesses put him at the scene, one of the principal killers at Luawa Geihun massacre. And Issa Sesay claimed, no, I couldn't have been there, I was wounded in the buttock, I was in the hospital. Although he didn't tell that lie very well because he said he saw when the incident began when Jande was brought, tied up on a vehicle. But the Defence's own witnesses contradict that. Musa Fayia talks about Issa Sesay, along with Sam Bockarie, being one of the principal perpetrators of the infamous Geihun massacre where people were killed in ways such as having boiling oil poured on their bodies. Where Issa Sesay's friend from the Ivory Coast, Kaifa Wai, not only was killed but had his head put on a stick. It wasn't just Fayia Musa that says Issa Sesay was involved. Fayia Musa, by the way, says Issa Sesay and Sam Bockarie beat Rashid Mansaray to death. That's in his testimony.

    Even the very last Defence witness, and I believe it's also DCT-292, said Issa Sesay was one of the principal architects, killers, of the Luawa Geihun massacre. And even the very last witness, Sam Kolleh, as much of a liar as he was, he let it slip out of the bag that it was Issa Sesay was the one that Rashid Mansaray was turned over to at Luawa Geihun. He wasn't in the hospital nursing a wound to his buttock, he was lying about that, just as he lied when he came to court trying to protect Charles Taylor. Fayia Musa said Issa Sesay was a heartless blind loyalist, and I think he got that a little wrong. Loyalist is not the right word. He's certainly heartless, but Issa Sesay was an opportunist and we saw that in his testimony, we saw that with his actions when he was a leader of the RUF. He was loyal, as long as he thought it would do him good and get him promoted. He'd kill for Foday Sankoh at Luawa Geihun when it got him promoted. That's how he got prominent in the RUF. He turned over peacekeepers to Charles Taylor, because Charles Taylor was the powerful one and he'd do what he would say. But at one point, after that peacekeeper incident, as the years went on, 2001, you recall Issa Sesay -- remember Abuja I was a complete failure, the RUF went there and nothing happened. But how did they go there? They went through Monrovia. They went through Monrovia, why? To get instructions from Charles Taylor. That's clear.

    But the second time, when they had to go for Abuja II, the Kenyan general, whose name is slipping my mind right now, at the time the Kenyan general for the UN force, in charge of the UN force in Sierra Leone, Issa Sesay said he took him aside, and he asked him not to go to Monrovia and for Abuja II he flew directly to Abuja, didn't go through Monrovia and what had changed at that time, that's in a clever opportunist like Issa Sesay could see is the balance of forces had changed. By this time, the UN forces are beefed up. There is a much larger, more powerful UN force, the humiliation of the United Nations was not going to go unresponded to and Britain had sent in a small, but powerful, well-trained group of forces.

    So Johnny Paul Koroma had gone over to the government side and Charles Taylor was starting to come under attack himself. The RUF was being used by Taylor in Guinea and getting pounded. They were getting pounded by the Guinean army, the balance of forces had changed. And Issa Sesay saw this, he knew Charles Taylor and he knew what had happened to people like Superman, who got killed when it was convenient for Charles Taylor, when it was thought that he might go, have gone to an embassy and disclosed some of Taylor's secrets. So Issa Sesay, being the opportunist that he was, decided, okay, Opande, General Opande, I'm with you, and at that time, Issa Sesay started playing a different role. Okay, he would start to try to cooperate. I'm sure he tried to keep one foot on both sides for as long as possible, but it was at that point that Issa said Charles Taylor's plans that the RUF not disarm started to go astray because the opportunist Issa Sesay wanted to survive.

    Who in the RUF had the radio code name Survival? Issa Sesay. And that's how he acted throughout, including in his testimony in this case, as counsel pointed out, he basically has a life sentence, he has nothing to lose, his hope now is Charles Taylor, so he came to court and he lied. He changed his testimony on key things. For example, he tried to say here Superman went on his own, after Fitti-Fatta, to the north, but he testified in his own trial that Sam Bockarie sent Superman to the north. Most importantly, he came and he testified and counsel went through the testimony of key Prosecution witnesses like Isaac Mongor, like Karmoh Kanneh, and there were many others, who talked about the shipment that Sam Bockarie brought back from Burkina Faso. And it's also documented in Prosecution exhibits that that shipment that huge amount of arms that came - made the December 1998 offensive possible, that that was brought back from Burkina Faso through Roberts International Airport, through Charles Taylor's airport, and we know, even Charles Taylor let it slip, the person he sent with Sam Bockarie on that trip was his own principal arms dealer, Musa Cisse. He tried to say, oh, I sent Musa Cisse because he spoke French but Blaise Compaore has translators, and two of the delegation spoke French, Eddie Kanneh and Lawrence Womandia.

    So Issa Sesay came up and was supposed to rebut all these Prosecution witnesses, he was going to prove that they were lying and he said, no, absolutely, he said, they are lying, they are lying. Sam Bockarie got the ammunition from Benjamin Yeaten. 11th hour, the Defence tried to pin everything that was happening in Liberia and Sierra Leone on Benjamin Yeaten. But it turns out, four times in his own trial, four times in his own trial, Issa Sesay had said the ammunition came from Burkina Faso. And if you read the Defence brief, they seem to have abandoned Issa Sesay on that line. They recognise the ammunition came from Burkina Faso. And how could it get there? It had to go through Roberts International Airport. That's what all the testimony is -- Zigzag Marzah, among others -- about the plane landing at Roberts International Airport and being -- Abu Keita -- and being trucked across the country. All that without the knowledge of Charles Taylor? The 11th hour or 11.59, suddenly the Defence team, at least, is trying to abandon Benjamin Yeaten, pin the case, everything that was going on in Liberia. Charles Taylor, not only are they trying to say didn't control the RUF, he didn't control the NPFL and his own government. He didn't know what was going on in his own government. But when he was asked about Benjamin Yeaten, Charles Taylor said he would appoint him again. Even though Benjamin Yeaten had told him he killed John Yormie and Isaac Vaye, and even though the evidence is, from Annie Yeney, a great Defence witness, Annie Yeney says she told Charles Taylor himself, Zigzag Marzah and Benjamin Yeaten arrested Sam Doki.

    This is supposedly the Zigzag Marzah that Charles Taylor has never heard of, never seen before, according to his testimony until he slipped up when he was asked how he knew he was an orderly, and he said, oh, I recognised his face. This is the same Zigzag Marzah Charles Taylor said shined shoes, but another Defence witness comes into court and says was a battalion commander who led the attack on Voinjama. There were so many lies that Sesay and Taylor were caught in. I'm afraid my time is up, but if I can just hopefully in about 30 seconds, just thank your Honours, thank everyone involved in the case, excuse me --

  • Before you get to that point, Mr Koumjian, can I clarify, you said until 11, but according to the - excuse me, you said one hour, but the status conference allowed the Prosecution to 11. Would there be another speaker?

  • I see. Can I just clarify, please refresh my memory, the evidence may well be adduced, the document you referred to P-067, appears to be a copy.

  • When the evidence was adduced relating to this was there an original that was not underlined? I do not recall.

  • I don't believe so. This was in the testimony of Tariq Malik about the provenance of this document, that it seized from Foday Sankoh's house by the CDS, I believe.

  • And, ancillary to that, Mr Koumjian. Again on this document, was there an explanation given as to why certain parts of this document, particularly relating to Mr Taylor, were underlined and by whom?

  • I don't recall that being given, but I have not recently reviewed the testimony of Mr Malik.

  • This would be very helpful to the judges, if we could have some kind of indication. Because this is a Prosecution exhibit, we would like some kind of indication as to why we have a copy, and why this copy is underlined in certain aspects.

  • The document was discussed and the provenance of the document, just for your Honour's benefit, in the testimony of Tariq Malik, and as I mentioned two witnesses confirmed seeing the original, that is TF1-567 and another witness who testified at the end of January of 2008. It was seized by the Sierra Leone Police, I believe.

  • As I say, I can't give you an answer, because I don't recall that testimony. If that was asked. Well, my time is up.

  • And you were addressing us and we have interrupted, please take the few minutes.

  • I'll try to do this in 30 seconds. I just want to thank your Honours. I want to thank your staff. I want to thank everyone involved in the case on all sides for the privilege to participate, and particularly we want to thank the witnesses who testified in this case, people like Reverend Tamba Teh, Komba Sumana, Mustapha Mansaray, Alusine Conteh, all of those brave people who came to court and talked to you and your Honours. It's our belief and I think I speak for the whole team, they don't sign our pay cheques but we work for those people. We have enormous respect for them, and we seek what Mr Patrick told your Honours in the prayer that he gave in the midst of his testimony, in talking - Patrick Sherif - talking about the death of his brother, when he said it was his prayer that God would bring justice for those who promoted this war. That's all we ask. Thank you.

  • Thank you, Mr Koumjian. You have indicated there will be another - Ms Hollis, you will be addressing us?

  • Madam President, your Honours, before I begin, do you have any other questions of Mr Koumjian?

  • I do not. I will consult with my colleagues. No, Ms Hollis, please proceed.

  • And we are at this point going back to the testimony of Mr Malik in relation to the document that Justice Sebutinde had the question about.

    Madam President, the Defence posed many questions to your Honours that they said needed to be answered. Now, Mr Koumjian has answered some of those questions, but we suggest to you that the evidence of record and the Prosecution final trial brief answer those questions for you. We agree completely with lead Defence counsel's comment to you on 9 March, that no theory can be a substitute for the reality of events. And the reality of events in this case show that the Prosecution's evidence is consistent across the events, very often corroborated by Defence evidence, and the reality of events in this case prove that this accused is guilty beyond a reasonable doubt.

    One last point about Issa Sesay: Mr Koumjian noted that Issa Sesay, an opportunist and realist, came to realise that the circumstances were changing away from Charles Taylor and in favour of a more conciliatory approach in Sierra Leone. However, even after that realisation, it was not until the end of 2001 that Issa Sesay's fighters in Kailahun District disarmed. And in fact, the evidence was that there wasn't a declaration of an end to disarmament in Kailahun District until around the 11th of January 2002. It was not until September of 2001 that Issa Sesay allowed United Nations to come into Kono in any meaningful way and to disarm that area. Issa Sesay continued to travel to meet with Charles Taylor throughout 2001, continued to provide diamonds to Charles Taylor throughout 2001, continued to do his bidding, by sending fighters to fight for Charles Taylor in Liberia and Guinea throughout 2001. So that realisation was slow in coming, and his being a puppet and certainly a subordinate, subject to the instruction of Charles Taylor, continued throughout 2001.

    During the Defence case and oral argument, you have heard Prosecution evidence characterised as nonsense on many occasions, on one occasion on the 9th of March, in relation to evidence referred to as garbage. Well, apply those terms as you see fit. We would suggest that you do have before you a true example of nonsense, a totally implausible theory that does not withstand the reality of events, and that is a theme and argument that you heard on 9 March when lead Defence counsel told you, well, let's look at the recruitment and the training of RUF trainees at Camp Naama and the planning of the attack on Sierra Leone. And what did the Defence tell you about that? That was all done without the knowledge of Charles Taylor.

    Let's look at the reality of events. This occurred in his backyard, very close to his headquarters in Gbarnga, where his NPFL were training on the very same base, Camp Naama, his NPFL were training there. The trainers at the RUF training included Momoh Dgiba whom you have seen many pictures of, behind Mr Taylor, protecting his back. Momoh Dgiba was involved. The reality of events shows you that Foday Sankoh took prisoners to train from Charles Taylor's jails, that were controlled by Charles Taylor's NPFL. And that he took these prisoners on roads controlled by Charles Taylor, through checkpoints controlled by Charles Taylor, including through Gbarnga, to this camp, that there were checkpoints near the camp and these were NPFL checkpoints. So he drove these prisoners through these checkpoints. And also the evidence shows you that Foday Sankoh and these trainers, trainees travelled by convoy after the training to Voinjama to kick off the invasion of Sierra Leone. And that Charles Taylor's NPFL commanders and fighters led and directed that initial invasion.

    And all of this happening while there was a very hot war going on, involving Mr Taylor's attempt to take control of Liberia. And yet you are to believe, as a plausible reality of events, that Mr Taylor knew nothing of this drain on his resources, of these people being taken from his jails and being sent into another country to fight.

    That is not plausible. But all of that happened because it happened at the direction of, with the support of, and with the guidance of Charles Taylor, to achieve the overall objectives in Sierra Leone.

    Now, the Defence would want you to accept that Charles Taylor had no knowledge of the RUF trainees at Camp Naama because he never visited them there. Well, he had his own NPFL trainees there and there is no evidence he ever visited them there. That simply is not a persuasive argument.

    You're also asked to believe, well, he can't have been the head or known about these trainees because why wasn't anybody reporting to him? Well, we suggest to you he was being reported to. Foday Sankoh was keeping him well advised of what was happening with their venture at Camp Naama.

    Defence counsel also asked you, well, if it's true that he was training the RUF at Naama, why didn't he give them arms for that training? Well, think about this. These are trainees, they don't need real weapons, they don't need new weapons, except for one purpose, and that is a limited number of weapons so that they can familiarise themselves with the weapons. So that they can learn to assemble and disassemble the weapons. And indeed, who told you about how NPFL trainees were trained and what kind of weapons they used? Charles Taylor told you about that on the 15th of September. And what did he tell you? He said the training of his NPFL, and he was referring to training at Camp Naama, was not done with good weapons, the training was done with demonstration weapons. They would take the weapons for the purpose of disassembling and assembly. And he went on to tell you, "Trainees, to the best of my knowledge and unless my commanders misinformed me, were not given weapons on that training base." And he told you this at page 28929, on the 15th of September. These arguments do not, in any way, detract from the evidence of Charles Taylor's critical involvement in the events at Naama.

    Now, the Defence also talked to you about Foday Sankoh and my colleague has made mention of Foday Sankoh. Duplicitous, they said, capable of great deceit. And they noted that Foday Sankoh, in his letter in December of 1996, noted that he had signed the peace agreement because of enormous international pressure. The evidence in this case shows you that this conduct is conduct of a type that he shared with his brother, Charles Taylor. Indeed, Foday Sankoh was duplicitous, capable of great deceit, and he certainly has that in common with Charles Taylor, although Charles Taylor prefers to characterise it as using deceit as a tool of diplomacy.

    The Defence talked about these two letters that Foday Sankoh sent to Mr Talibi and those were exhibits D-15 for the June letter and P-272 for the December 1996 letter.

    What the Defence seems to go on to tell you that, somehow, there is evidence in these letters to show that Mr Sankoh had an independent connection with Burkina Faso and so the Magburaka shipment was through an independent connection, as evidenced in these letters. We suggest to you, look at these letters very carefully and you will find just the opposite. Because what is Foday Sankoh doing in these letters? He is complaining that Burkina Faso is giving him no assistance, that they will not assist him, and he mentions by name a gentleman, Diendere. Well, you've heard that name before and you've seen that name in P-18 because indeed it was this gentleman, Blaise Compaore's subordinate, who signed the end user certificates by which Burkina Faso got the materiel that was sent on to Charles Taylor in March of 1999.

    What these letters show you is that, unless Charles Taylor endorsed the efforts of the RUF and later the AFRC/RUF to get assistance from Burkina Faso and also Libya, that assistance didn't come. It was Charles Taylor's connections with these individuals that made possible the assistance that was given. For example, the assistance that was given in late 1998 with the huge amount of materiel that was brought from Burkina Faso, may well have originated in Libya, but was brought from Burkina Faso to Monrovia, to Charles Taylor's RIA airport, and from there was taken through Charles Taylor's territory to Sierra Leone.

    And you recall also this name Diendere. This March 1999 shipment, the Defence counsel talked about large shipments to the RUF or AFRC/RUF. Well, in fact, the evidence shows you four large shipments. We have, of course, the Magburaka shipment, which was a very large shipment, the only one that came in to Sierra Leone by aircraft. But then what else do we have? After Magburaka, we have of course the very large shipment that came in for the Fitti-Fatta mission. And you recall the evidence that there was a lot of ammunition that came in for that, because originally that was to be the kickoff for the offensive that would put the AFRC and RUF back in power. That offensive was delayed until later in the year, because the Fitti-Fatta mission failed in Kono.

    Another large shipment of course was the late 1998 shipment. And then the fourth large shipment was the March 1999 shipment. But in between these shipments, the evidence is very clear in this case, that Charles Taylor continually supplied his proxy forces in Sierra Leone with smaller shipments, and these were arranged in part by Sam Bockarie travelling very frequently in 1998 to Monrovia, both to get instructions and also to facilitate the movement of materiels.

    Now, Defence counsel posed some questions about Foday Sankoh's time in Ivory Coast, insofar as how it related to his relationship with the RUF, and he asked you why didn't Foday Sankoh just go over the border and ask Charles Taylor for assistance? He was in Ivory Coast, he could go over the border. Well, he didn't have to go over and tell him of the problems he was having and ask for assistance, because he and Charles Taylor had been in constant communication during the time access to the border was so restricted. Charles Taylor knew the problems he was having, getting materiel, and when it was very difficult, if not impossible, for Charles Taylor to supply him directly, he told Mr Sankoh, "Move out of the towns and revert to guerilla warfare," a tactic that Mr Taylor had used very successfully in Liberia. And he told Foday Sankoh, "Go to Abidjan, participate in the peace talks, because that will give you a front to be able to arrange to get materiels."

    So he knew the situation and he also knew the situation from the contacts he had with members of the external delegation, and don't forget, Charles Taylor himself went to Abidjan for the launching of Footpaths to Democracy. And we suggest to you it is very reasonable and very likely that during that trip, he had direct contact with Foday Sankoh. So he didn't need to go across the border. He already had fully apprised Mr Taylor of his situation and was getting direction from Mr Taylor.

    Now, the Defence also ask you, well, why didn't he include Charles Taylor's name in these letters? Well, my colleague has alluded to one reason, and that is by this time the RUF is very notorious for its horrific crimes against civilians. And so Mr Taylor, as he did with Sam Bockarie in D-9 was not about to have his connection mentioned directly. But we suggest that there is another reason. There is another reason based on evidence before you, and that is that what was happening with these letters is that, in effect, Foday Sankoh was scamming Mr Talibi. You have evidence to show that there was no known business partners for deals, for weapons, that there was no known deal for weapons, and also that Foday Sankoh was using the money, quite large sums of money, he was given for his own personal pleasures and purposes, not to advance the cause. And so Mr Sankoh knows that without Mr Taylor's endorsement, he's not going to get anything, but he's trying to pull a scam. He's not going to tell them to contact Charles Taylor. Charles Taylor knows how greedy Foday Sankoh is, and he's going to demand some proof that these are bona fide deals before he gives the go-ahead. That didn't happen.

    And the other thing that you have in the evidence is that despite all of these requests for assistance and all of these comments about deals for weapons, there is no evidence to indicate that this huge sum of money was ever given to Foday Sankoh or that any weapons deals derived from this exchange with Mr Talibi. The letters support the Prosecution case, they don't support the Defence argument of an independent connection with either Libya or with Burkina Faso. In each instance, it took Mr Taylor's involvement and endorsement to get assistance from those countries for his proxy forces.

    Now, yesterday, you had a discussion from the Defence about credibility of evidence, and of course that is key to your consideration in this case. We suggest to you that there were some assertions made by the Defence that are not correct. For example, we suggest to you that hearsay evidence of one witness can be used to support hearsay evidence of another witness. For example, if you have, as we do in this case, many witnesses telling you that Sam Bockarie and Issa Sesay, in their roles as on-the-ground commanders in Sierra Leone, came back and reported to their subordinates about their meetings with Charles Taylor, about the plans Charles Taylor devised, about the assistance Charles Taylor was giving, about the instructions Charles Taylor was giving, we suggest to you that all of this evidence can be considered for the consistency of those reports, and as credible evidence and very important evidence in this case.

    We also suggest to you that it is very common that judges accept one part of a witness's testimony and do not accept other parts. That is very common.

    In relation to insider or accomplice testimony, we have discussed this in our final trial brief at paragraph 42. But you recall the law on insider or accomplice evidence, you are certainly supposed to view it with caution, but you may rely on it when you determine that it is credible, and in fact you may rely on it even when it is not corroborated.

    The Defence has invited you to look very carefully at the evidence, and of course you must do that. But you must look carefully also at assertions about the evidence that are made by either party. And you may want to recall, when you are looking at the evidence and judging inconsistencies, you may want to recall the argument made by lead Defence counsel in this Court on 16 July of 2009, and this was when Mr Taylor had told your Honours that the initial invasion of Liberia took place on 29 December, and then lead Defence counsel, after an objection, argued at page 24649, "Obviously, he," meaning Charles Taylor, "misspoke this morning. Not everyone, the Defence said, particularly in the pressurised position of sitting in the chair being cross-examined, can recollect every date and every occasion."

    Of course Mr Taylor was not being cross-examined at that time. He made this mistake during direct examination. But the point is one worth considering.

    The question, as I mentioned, in relation to allegations of inconsistencies, is: Are these truly inconsistencies or are the allegations based on misstatements, mischaracterisations of the evidence, or a misunderstanding of the evidence. And we suggest when you look at the Defence final trial brief and oral argument, that they have many instances where they make allegations of inconsistencies that are, in fact, based on incorrect statements of the evidence, mischaracterisations of the evidence or misunderstandings of the evidence. Now, in that regard, given the time that we have, I would simply like to look at a few instances that we suggest that the Defence oral argument and brief is replete with these examples.

    If you recall on 9 March, the Defence told you that there were many, many inconsistencies in the evidence regarding the Magburaka shipment. And as one instance of that, they asked the question, well, how was the shipment paid for? Defence counsel told you one witness, TF1-597, said it was paid for with diamonds. Note the plural, he told you. Diamonds. Because another witness, TF1-371 said that it was paid for with a 90-carat diamond and $90,000 from the Bank of Sierra Leone.

    We invite to you closely examine the transcript of 28 January 2008, at pages 2309, 2311, 2313 and 14 and also to look at the transcript of 31 January, 2703, at page 2703. We suggest when you do that, you will find this witness spoke of 90-carat diamonds, some quantity of diamonds, about 90-carat diamonds, the required quantity, diamonds. Note the plural.

    And also, you will find that the witness says very clearly that the $90,000 was for the flight. It was for the transport. It was on 31 January, when the Defence counsel put to the witness in a question, a 90-carat diamond. But on the same page, and this was at page 2704, on the same page, the Defence counsel went on later to ask, "So, just so that we can get the sequence clear, payment for the shipment is made by diamonds." Defence counsel inserts a 90-carat diamond, not the witness.

    Now, the same witness is misquoted as to a significant point at paragraph 890 of the Defence final trial brief. And your Honours, when I refer to the Defence final trial brief, I'm referring to the corrected brief, not the latest filing. We simply did not have the time to do a correlation between those. So it's 890 of the corrected final trial brief, where the Defence tells you that this same witness testified that the attack on Freetown was entirely Sam Bockarie's idea. Well, we invite your attention to the testimony of 30 January 2008, at page 2641 and 2642, where the witness told your Honours that the instruction to go to Freetown originated in Monrovia from Charles Taylor. That's the evidence of record.

    So, inconsistency or mischaracterisation, misstatement, of the evidence?

    Yet another instance with this same witness, at paragraph 1079 in the Defence final trial brief, wherein the Defence assert that this witness and another witness, Karmoh Kanneh, TF1-571, give no account of Sam Bockarie meeting with Charles Taylor regarding a shortage of arms and ammunition prior to Sam Bockarie's travel to Burkina Faso. Now, maybe we have a little wordplay there, but we invite your attention to the testimony of the 28th of January 2008 at page 2403, where the protected witness testified that according to him, meaning Sam Bockarie, they were going to meet Musa Cisse in Monrovia and meet Mr Taylor. Ibrahim Bah was to escort them to Ouagadougou, but they were going to stop at Monrovia first, and meet Mr Cisse and Mr Taylor before they took the trip to Ouagadougou.

    And as for Karmoh Kanneh, on 13 May, we invite your attention to that transcript, 13 May, page 9639, where Karmoh Kanneh told you, "Well, he," meaning Sam Bockarie, "did not explain to me how he," meaning Sam Bockarie, "travelled to Liberia but before he," Sam Bockarie, "left, he told us that the arrangements had gone through Mr Taylor."

    Inconsistency, misstatement or mischaracterisation? You decide.

    Now, TF1-274, DAF, was a witness you were told you had to pay particular attention to. At paragraph 1285 of the Defence final trial brief, the Defence asserted to you that it was quite clear that DAF, TF1-274, had a tendency to give accounts on issues that were beyond his knowledge. And they cite as an example his testimony that Superman and SAJ Musa worked together to capture Eddie Town. And they said that this testimony was oblivious of their well-known fallout well before, and that Superman, in fact, never went to Eddie Town. Well, we would invite your attention to the testimony of TF1-334, the 21st of April of 2008, at pages 8166 to 67, and also the 22nd of April at pages 8193 to 94 and, in particular, page 8223. And we would suggest that when you look at that evidence, you will find that 334 tells you that SAJ Musa and Superman were working together, and, in fact, they tell - he tells you that SAJ Musa addressed the troop and said that there was something that had been prepared and he and Superman should come to Colonel Eddie Town to advance. And he talks about infighting, but he said that they should continue.

    "He said that the infighting should not stop the programme that had been organised whereby they had released reinforcement, that is SAJ and Superman, to come and join us so as to advance on Freetown."

    Inconsistency, mischaracterisation? You decide.

    TF1-338 was also the subject of attention by the Defence, and of course, he would be because he gave very credible, mostly direct evidence that was of great significance to this case and very harmful to Mr Taylor. Now, this witness was referred to in the Defence final trial brief at paragraph 1336. And in this paragraph, and because of the content, I will not go into the details but we will suggest to you this:

    First, the Defence misstate why this witness said that he engaged in the event that he's talking about in paragraph 1336. They misstate why he did that.

    Secondly, they erroneously claim that this witness is the only one who will speak to this issue, to this event. Well, we suggest to you that you look very carefully at the testimony of this witness at 2 September 2008 at pages 15233 to 15235, and it is very clearly laid out, the circumstances of that event, and there is no inconsistency. It is the Defence who is misstating what the witness said and it is not incredible in any way. We also invite you to look at evidence of 29 January 2008 at page 2459 to 2460, and the 31 January 2008 at page 2787. And we suggest that when you look at this evidence, you will find that this evidence corroborates the account of TF1-338.

    Isaac Mongor, TF1-532, was another witness that your Honours were told you should look at very carefully, and of course you should look at all the evidence in this case very carefully, but you also have to ask yourself, true inconsistency that is being asserted or misstatement or mischaracterisation of evidence? And in relation to Isaac Mongor, on 10 March the Defence told you, as they have asserted in the past, that Isaac Mongor told this Court that he was sent to Camp Naama to be the training commander there, training commander there. And there was a great deal made of that. How could this man be the training commander? Well, look very carefully at his evidence. Nowhere does this witness tell you he was sent to Camp Naama to be the training commander. He tells you he was sent there to train and others have told you that he did, he was a PI instructor. And he names many other instructors who were at Camp Naama and the point was made, well, Special Forces could train them. Well there were Special Forces there training them, and that is in evidence as well. But nowhere, nowhere, does Isaac Mongor tell you that he was sent to Naama to be the training commander.

    Now, the Defence have also attacked and challenged Mr Mongor's evidence about the operation culminating in the attack on Freetown in January of 1999. And in that regard, we would refer your Honours to the paragraphs in the Defence final trial brief 884, 885, 886. And in paragraph 884, first of all, when the Defence is talking about this idea that it was a joint operation, and by the way, when we think about this being a joint operation, don't forget the agreed fact that the Defence has never withdrawn from, that it was the AFRC/RUF who attacked Freetown in January of 1999. But, anyway, when we are talking about Isaac Mongor, when they are telling you about his evidence of commanders who took part in this attack, in paragraph 884, they omit someone. They omit Akim Turay from their discussion. And why do they do that? Because it doesn't fit their theory because as we know Akim Turay was what? He was an ex-SLA. He was an AFRC member. He was one of the commanders that took part in this attack.

    And you know that from the evidence of Mr Mongor on 11 March at page 5797.

    In that same paragraph they present a very skewed view of Mr Mongor's evidence as regards the relationship between Sam Bockarie and SAJ Musa. They omit from that account that Mr Mongor also testified about the presence of RUF radio operators with SAJ Musa's group, radio operators such as King Perry and Alfred Brown, thus demonstrating the link between the RUF, Sam Bockarie and SAJ Musa and he talks about that on 11 March again, at page 5800.

    And at paragraphs 885 and 886, the Defence artificially describe the fighters involved in this operation in different aspects as being part of either the AFRC or the RUF groups, when in truth if you look at Mr Mongor's evidence he makes it very clear, and unwavering is he, in his description that this late December offensive and January invasion was perpetuated by combined forces. And he does that in various locations, again if we look at 11 March, page 5823, 5824. 11 March, 5810, when he talks about the People's Army and you recall there was evidence that the People's Army is the AFRC and RUF. And you recall that that is evidence that you received on 23 January at page 1972 and on 17 April at page 7873.

    So inconsistencies, showing implausible theories or evidence from the witness? Or mischaracterisations of the evidence? We suggest mischaracterisation of the evidence.

    Now I would like to move on to some other points that the Defence has made in oral argument and their final trial brief that might benefit from closer consideration and I will do this as time permits.

    Let's look, first of all, at the Defence arguments to you in relation to the AFRC as part of the joint criminal enterprise. Now, on 9 March, the Defence told you that think about this in logical and psychological terms. It is not logical that the AFRC would accept Charles Taylor as leader because their comrades had been killed by Liberians. Well, not only is it logical, it is reality. But think of it in this way: It is beyond dispute that the AFRC accepted the RUF as their equals. They accepted them into the government. And the RUF, over the years, killed many more of their colleagues than Mr Taylor's Liberian forces did, and yet they welcomed the RUF with open arms and immediately after taking power. So to reach the greater good in your mind can you deal with people that once were your enemy? Well, Charles Taylor has shown you that you certainly can, when you are driven to achieve your objectives and that's what happened here.

    And why were they so eager to embrace the RUF? Well, the evidence shows you why. They wanted to be able to immediately join with the RUF and Charles Taylor in their joint criminal enterprise so they could get the benefits of it. And, indeed, they did join with them and they did get the benefits of it. They got Mr Taylor's efforts to get them recognised, they got his efforts that, in fact, we suggest to you, prolonged the life of this unlawful regime, and they got the benefit of arms and ammunition. And Mr Taylor got benefits immediately as well, because he got diamonds.

    So were they a part of the JCE? You bet they were. That's what the evidence tells you, and they did it because they wanted to achieve the ultimate objectives of the JCE, control of the people and territory, and exploitation of its resources, and there is ample evidence about how they exploited those diamond resources during the junta. And they participated in the criminal means by which that joint criminal enterprise was to be effected.

    And you also recall the evidence that it was Gibril Massaquoi who actually brought Charles Taylor's number to Johnny Paul Koroma.

    And that is found at the Prosecution's final trial brief at paragraph 186 and the reference is to the evidence of TF1-597.

    Now, in trying to tell you that the AFRC did not and could not have been part of this JCE, the Defence pointed your attention to this coup plot that was transmitted by who? Gibril Massaquoi, they say. And Steve Bio, to actually overthrow Johnny Paul Koroma. Now, remember, Gibril Massaquoi, this man who brought the phone number for Charles Taylor to Johnny Paul Koroma was the one who was very close to Foday Sankoh at the end, was the one who actually went to Nigeria with him. We suggest to you that he brought that number from Foday Sankoh. Now, duplicitous, deceitful? Foday Sankoh? Maybe yes, maybe no. Because what did Issa Sesay tell you? That they, he, found out about this plot, he was approached, and what did he do? He went to Sam Bockarie and told him about it, and they decided, because Foday Sankoh said work with the junta, they decided to actually turn this information about a coup plot over to Johnny Paul Koroma, and as a consequence, Gibril Massaquoi was put in jail. So Foday Sankoh send them? Someone else behind it? Who knows? But that's the evidence before you. In fact, these people that supposedly were never in league with the AFRC, that never worked in concert with them, those two leaders turned that information over to Johnny Paul Koroma, and Gibril Massaquoi was arrested.

    Now, one point that the Defence made during their argument was to, in effect, complain about protective measures that had been provided in this case, and also to overstate the reality of these protective measures. And on 9 March, you were told that much of the Prosecution's case, the crucial part of its case, that is been, in large measure, shrouded in secrecy. Well, of the 94 Prosecution witnesses who testified live, 21 testified using protective measures. Only four of those testified in closed session. The others testified largely in open session, with some private sessions. So about 26 and a half per cent of our witnesses had protective measures. The Defence, of course, called far fewer witnesses, 21 witnesses. Six of them had protective measures so about 28 and a half per cent of their witnesses had protective measures.

    Now, on the 9th and the 10th of March, you were told that Moses Blah supports the Defence position that the border between Sierra Leone and Liberia was closed until the elections in 1997. Now, we would invite you to look at Moses Blah's evidence and see if that's what he said and we would invite you to look at his evidence on the 19 May 2008, at page 10193. This is in cross-examination, and, in fact, it is the Defence counsel who puts the dates to this witness, not Moses Blah independently recalling the dates, and indeed, when the Defence counsel puts the dates to him, the Defence counsel puts to him the border was closed until the elections in June 1997, and Moses Blah agrees with that. But, of course, the elections were in July of 1997. This witness throughout his testimony showed to you that he has a great problem independently recollecting dates. This was the Defence putting a date to him and him agreeing, even though even the Defence got it wrong. It wasn't June when the elections took place, it was July.

    And if we look on 20 May, testimony of this witness, at page 10361, he explained to the Court what he knew about this border between Sierra Leone and Liberia and at that time, he told you that the border he was concerned about was the one he knew of, that he can say something about, was the border between Liberia and Cote d'Ivoire. Because it wasn't far from his home. But where you're talking about the border of Sierra Leone, he told you, "It's very, very far away from me, and I did not know the real different towns and the marcating systems on that border, but I knew at a point in time that the border was closed."

    The Defence also addressed diamonds a bit in oral argument and to a greater degree in their final trial brief. And at page 760 of that final trial brief they tell you that, "The evidence fails to establish a joint criminal enterprise involving the taking over of political and physical control of Sierra Leone in order to exploit its abundant natural resources."

    It says, "What diamonds did was to underwrite that war almost midway into the conflict. And it says that really the conflict in Sierra Leone had its roots in the genuine socioeconomic and political grievances."

    Now, that last part of course is something that no one is unfamiliar with. That is what we may term rhetoric over reality. Because the rhetoric that makes you look good to the internationals, and helps to bring some people to you, is that we are here to help the people, but you've been told about that reality throughout the trial, even by Defence witnesses. Did those crimes happen in Sierra Leone? Charles Ngebeh was asked. "Yes, all of them happened. That's why those people are in jail."

    Rhetoric versus reality. It's the same thing in Liberia, rhetoric versus reality. That wasn't the reason for the war, but it did make a good show. And if you look at the evidence, the evidence is overwhelming to show that one of the ultimate objectives of this conflict in the JCE was the exploitation, the pillage, of natural resources because what does the evidence show you about that? Every time, every time the RUF, and then the AFRC/RUF, had access to diamonds, whether they were taking diamonds that had already been mined or whether they were mining themselves, every time they had access they took those diamonds. It happened in Zimmi, you were told, at the beginning of the war. It happened in Kono, you were told, in late 1992, early 1993. And, of course, we know it happened big time in the junta. And as soon as they were pushed out of Freetown in 1998, diamond mining began, the exploitation, the pillage of those resources continued and when did it reach its full flower? When Issa Sesay was in charge and when Charles Taylor sent equipment to him. And during Issa Sesay's time you were told Charles Taylor got the benefits of 5,000 pieces, at least, of Sierra Leone gem-quality diamonds.

    And if we look at exhibit D-366, Footpaths to democracy and if we look at what is said under the RUF SL anthem title at page 00009705 of that Footpaths to Democracy, what do they ask? Where are our diamonds, Mr President? Where is our gold, NPRC? And of course, we have it from a very good source that diamonds were one of the ultimate objectives of the war in Sierra Leone. And that is we have it from Charles Taylor himself. In a November 2000 interview with Stephen Smith, what did he tell Stephen Smith? "Yes, I think," Charles Taylor said, "I think the war in Sierra Leone is a war for diamonds." Of course, he said it's the British who want diamonds, but in fact he said it was a war for diamonds, and we know from the evidence he was the one benefiting from that war for diamonds. Now, it's also in that same article that Mr Taylor tells you the RUF committed terrible atrocities and that someone will have to answer for that.

    Now, what were some other Defence questions? Well, on 9 March your attention was drawn to D-481, the US state department cables. And Defence counsel referred to a comment in that cable about no weapons caches having been found following the CPA. And then the Defence counsel asked you, well, you know, you're told that he never truly disarmed, that he lied when he spoke in court about it, that this was a disarmament that did not happen. Now, we look at what the US ambassador is saying, disarmament of the factions following the CPA has been extremely successful. And then Defence counsel asked you which of these two are we to believe? Well, you should believe both. Because what Defence counsel has done, intentionally or unintentionally, has confused time periods because what is the cable referring to? After the CPA. The Comprehensive Peace Agreement in 2003. So after Charles Taylor left the country, there were no weapons caches found.

    But what is our evidence talking about? We are talking about the disarmament that precedes the July 1997 election, the disarmament that Charles Taylor's own former Minister of Defence told you simply did not happen. That's what we are talking about.

    Now, your Honour, I am running out of time here. I'd like to move on to two final topics.

    The Defence has talked to you about diversions in this case and we suggest there have been diversions and we suggest to you that from the very beginning the Defence has tried to transform this criminal proceeding into a political and propaganda platform for Charles Taylor. That is a platform that he feels very comfortable with. And these efforts have continued in oral argument, on 9 March you were told that this trial was a 21st century form of neocolonialism. In making this statement to you perhaps the Defence forgot how this Court came into being, it was the Government of Sierra Leone, a government of a West African country that sought a means by which some, some measure of accountability could be determined for the crimes in that country. And they did that by reaching out to the United Nations. And they had to do that by reaching out to the United Nations because the Lome Agreement that Mr Taylor and his people were so instrumental in shaping and pushing through, that Lome Agreement gave blanket amnesty. So he benefited from it, his proxy forces benefited from it, but the victims in Sierra Leone didn't benefit from it, and so the Government of Sierra Leone asked that a court be created and that's how this Court came into existence.

    And there is also a perverse sort of logic in this argument and the logic seems to be that unless the heads of African states will create courts or can create courts to punish crimes within their country, even crimes that offend everyone of us as members of the global community, unless they do that, the rest of the world should simply butt out. Because if they don't do it, then these victims should be left without justice. Somehow they deserve lesser justice. We suggest to you that is not the case.

    Now, the Defence went further. They went much further in the argument here, and he basically said that this was not a trial at all, but an abuse of legal forms to achieve a predetermined end. Predetermined end. And he said that the tribunals and that means any tribunal, which are but an instrument of diplomacy in the hands of states are, in fact, not administering law at all but instead providing a spurious cover for their paymasters, thereby prostituting the legal process.

    Are your Honours providing spurious cover for your paymasters, prostituting the legal process? Of course, you are not. This is a criminal trial, with an accused who is here because of the evidence showing the crimes he committed. And of course, the Defence in their accusation conveniently forget that since all of the cost of the tribunals are paid for by these so-called paymasters, the Defence too, being paid by them, must then be providing cover for the paymasters and prostituting the legal process. That would be the logical outcome of their argument, wouldn't it? Is that the case? Of course, it is not.

    Now, the Defence have talked to you about selective prosecution and they have rightfully relied on the Delalic Appeals Chamber judgment in talking about selective prosecution. And that was an Appeals Chamber judgment delivered on 20 February 2001. And when we look at that Appeals Chamber judgment, as the Defence has, we see that in that case, the Appeals Chamber held that there is very broad discussion or discretion on the part of the Prosecutor to make decisions about the crimes that will be charged and the offenders that will be prosecuted. And that it's a very high burden that must be met, that it must be shown that indeed the intent of the Prosecution was to discriminate on improper motive and that similarly situated persons were not prosecuted.

    Well, the Defence haven't shown you either of those. There is no intent to prosecute for improper motives. This accused is before you because he earned the right to be here through his choices, through his actions, through his failures to act. The evidence is overwhelming of his involvement in all of this. That's why he's before you.

    Secondly, similarly situated accused? In trying to show you about similarly situated accused, one of the things that the Defence told you was, well, let's look at ECOMOG. Well, look at ECOMOG, both in Sierra Leone and Liberia. ECOMOG was the group that the people fled to, these foreigners in their land, they fled to them. How much worse must have been their own countrymen who were committing these crimes against them that they fled to ECOMOG? And in addition, no one in this case is similarly situated to this accused. He was at the very centre of the web of the crimes in Sierra Leone. Gaddafi, Compaore, they helped build that web and they helped maintain that web through Charles Taylor. The international community did not go to Gaddafi, did not go to Blaise Compaore; they went to Charles Taylor, because he's the one who had control over the leaders of these groups that were perpetuating such horrific crimes.

    Now, the Defence at paragraph 21 of their brief cite you to the Delalic case, and they tell you that the Delalic judgment, in that judgment, the Appeals Chamber noted that, and here is their quote: "Unless all potential indictees who are similarly situated are brought to justice, there should be no justice done in relation to a person who had been indicted and brought to trial."

    Pretty strong language. What does that tell you? If you can't get them all, you can't get any of them. Is that really what that judgment said? Take a look at that. The judgment said this, there were a few words omitted but very critical words. Here is what Delalic actually said and they were talk about, let's assume a hypothetical case, where not all similarly situated people were prosecuted. "Even in that it cannot be accepted," those were the words omitted, "it cannot be accepted that unless all potential indictees who are similarly situated are brought to justice, there should be no justice done in relation to a person who had been indicted and brought to trial." That's what they told you. That's what they told you. And I am informed that this is now paragraph 16 of the new Defence brief.

    Your Honour, they misstated the law there, because it fit into their argument. They have misstated the evidence to make it fit into their argument. The evidence in this case, credible evidence in this case, proves this accused guilty beyond a reasonable doubt of each and every count of this indictment and we ask your Honours, acting not as puppets but acting in your capacity, people of integrity, people of independence and impartiality, when you look at the evidence you will conclude proof beyond a reasonable doubt has been met and we ask you to enter convictions on all of the counts in the indictment. Thank you.

  • Thank you, Ms Hollis, we do not have questions arising from your address. We will therefore adjourn the court to 11.30 and resume at that time. Please adjourn court to 11.30.

  • [Recess taken at 11.02 a.m.]

  • [Upon resuming at 11.31 a.m.]

  • We will now hear the Defence's address and rebuttal and I understand, Mr Anyah, you will be addressing us?

  • Yes, Madam President, thank you. Good morning, your Honours. May it please the Court.

  • May I interrupt briefly, your Honour?

  • Mr Bangura, I failed to note a change of appearance.

  • That is what I intend to inform the Court about, indeed. Ms Hollis asked me to convey her apologies. She is at the moment attending to a prior engagement which is very pressing.

  • We will note that, Mr Bangura. Please be seated, Mr Bangura.

  • Yes, Madam President. I should also indicate the same. There is a change of appearance for the Defence. We have been joined by an intern on our case, Mr Isaac Ip.

  • I recognise Mr Ip, thank you.

  • I'd also make another preliminary remark, which is that I will reserve about 15 minutes of my time for Mr Griffiths to address the court at the end of the two hours, and lastly to echo the sentiments expressed by Mr Koumjian, I wish to thank the many people who have assisted us in the course of this trial both from the Special Court, from the ICC, and now that we are housed at the Special Tribunal for Lebanon. Thank you.

    A lot has been said this morning by counsel opposite. When I listened to Mr Koumjian this morning, a lot of points were made, but there was also a lot of emotion and I don't intend to be overly emotional. I will stick with the points of evidence as I speak.

    When you consider some of what was said by both Mr Koumjian and the chief Prosecutor, Ms Hollis, and you listen to it carefully, implicit in it was a suggestion of sorts that the Defence has some kind of burden. You heard them speak this morning in terms of the Defence should answer such and such questions. They challenged the Defence to produce such and such document. They want us to comment on particular documents, exhibit D-7. There are other exhibits they propose are very damaging to us. We have arrived at the point of the case where so much is now in evidence, your Honours have heard from a total of 115 witnesses. 94 for the Prosecution, 21 for the Defence, including the accused.

    You have in evidence approximately 1097 exhibits, 615 from the Prosecution, and I believe the Defence introduced about 482.

    There are also evidence to consider in the nature of rule 92 bis statements. And then you've had our written submissions, detailed, including the response filing from the Defence. You have also had oral submissions, 8 and 9 February and this week, 9 March, yesterday, 10 March and now today. There is not a whole lot left to cover.

    But what is important to consider at this stage is context. There is an overall context in which the evidence in this case must be viewed. The Prosecution would have you at this stage look at the case vis-a-vis events that are discrete and isolated, that we lawyers can quibble about before the Court. Well, this document says this and look at this signature and look at that spelling. Yes, those things matter, but there is an overall context that is a common thread that runs throughout this case. The Prosecution cannot hide from it at this point. And what is that common thread? That common thread is a mode of liability called joint criminal enterprise. That is what holds this case together. This case stands or falls on that mode of liability. I will address that mode of liability in some detail during the two hours I have, indeed an hour and 45 minutes. There are also other issues of course to deal with. The Prosecution has raised specific concerns, some of which I will address. I also understand from the transcript and from my colleagues that yesterday in court Her Honour Justice Sebutinde raised some questions. I will seek to revisit some of those issues today. And then there are other additional issues that in a case like this it's hard to overlook. But let me begin with the primary focus of my submission, which is the notion of joint criminal enterprise.

    Incidentally I should say about this JCE issue, in the introductory section of our brief we have made submissions regarding the procedural history of the JCE, regarding the issues of what we submitted was the irregular pleading of JCE by the Prosecution. We have made submissions to the effect that we were prejudiced by a delay of about 13 months that it took the Court to resolve that issue.

    Madam Presiding Judge, I think you're trying to find the portion of our brief. It is at paragraphs 47 through 71.

  • Thank you.

  • Page 25 through 34. This is the version of the brief filed by us on 9 March.

    Now, we've raised the irregularity issue, the Appeals Chamber resolved that issue on 1 May 2009. Your Honours also issued a decision which led to the appeal in February 2009, but there are ancillary issues that flow out of that decision by the Appeals Chamber and we have raised those issues. What was the legal effect, vis-a-vis the ambiguity in the indictment and the - what we call secondary accusatory instruments, the case summary, the Prosecution's opening statement, the Prosecution's pre-trial brief and the like. Did the decision have a curative effect to operate nunc pro tunc to the beginning of the case to put the Defence on notice? All of that we have briefed. I will revisit it in a very limited nature, only to the degree that there was still ambiguity about what the common purpose of the JCE was through the currency of the entire Prosecution case. And, indeed, if one is to believe that questions from the bench have in part a basis of seeking clarification about some of these issues, there were questions posed to Ms Hollis, the lead Prosecutor on both 8 and 9 February by Her Honour Justice Sebutinde seeking clarification on what appears to be changes now in the Prosecution's final brief and in its oral submissions vis-a-vis what the common purpose of the JCE was.

    So there are some ambiguities and they have consequences for the Defence. They have prejudiced the Defence, in my submission. We have made that argument in our brief.

    But the bulk of my focus is now on JCE, in particular the evidence or the lack thereof, to sustain that mode of liability.

    We all know the elements of the JCE, the actus reus elements, they are the same for the two types of JCE that are featured in this case, plurality of persons, that's not in dispute, a common purpose, that constitutes or amounts to a crime within the jurisdiction of the Court. And then you have to have participation by the accused. Not just participation. The law requires significant or substantial assistance, significant participation, more specifically substantial assistance.

    Counsel opposite, Mr Koumjian, said on Wednesday that there is a lawyer's adage of sorts that you tend to focus on the law when the facts are against you. In Chicago, where I started my legal career, we say it slightly differently, the same adage and we saw that when the law is against you, you hammer the facts, when the facts are against you, you hammer the law, and when both the facts and the law are against you, you hammer the table. I don't intend to hammer the table today because both the law and the facts are in favour of us on this issue of joint criminal enterprise.

    Now, the JCE. First, what common purpose has been alleged? And what evidence has been presented to sustain that common purpose? Second, has that common purpose been fluid and continuous from the beginning of the case? By that, I mean has that common purpose been fluid and continuous from when it was said to be agreed in Libya, in the late 1980s through the cessation of hostility in Sierra Leone in January 1992. Has there been one common purpose? Has there been any change to it? These are questions that your Honours have to address.

    Three, who are the members of this criminal enterprise? Has the membership been continuous? Have there been changes along the way? The Prosecution has acknowledged in oral submissions that sometime in 2000, Johnny Paul Koroma was not a part of the joint criminal enterprise. He had left. The other part of the transcript that confirmed the Prosecution's position that leaders of the joint criminal enterprise and members were moving in and out. So apparently the Prosecution at the end of the case tells us that the criminal enterprise had fluidity vis-a-vis its membership. That is an issue to consider as you view the evidence in the case.

    There is also context. What else was obtaining in the theatre of this conflict? And by theatre, I should speak in the plural, Liberia and Sierra Leone. What else was happening in these two countries? Were there others in these countries that took part in the conflicts but whom the Prosecution does not allege were members of the joint criminal enterprise? Yes. In Sierra Leone, several groups come to mind. You've heard evidence of somebody or some group called the Special Task Force, STF, David Livingston Bropleh; you have heard evidence of the Kamajors, some refer to them as CDF; ECOMOG was present in during the relevant period of time; there were also irregular groups present, a mercenary group from the UK called Sandline. There is evidence of their presence in Sierra Leone. There is evidence of their involvement in the importation of arms and ammunition into Sierra Leone during the relevant period. You also have the Executive Outcomes, a South African group that was in the theatre of this conflict at the time they say Charles Taylor was spearheading a joint criminal enterprise.

    What was obtaining in Liberia at the time? Several other armed groups involved in the fighting in Liberia from when the civil war broke out in 1989 through Mr Taylor's election as President. You've heard of ULIMO, both strand of ULIMO, ULIMO-K, ULIMO-J. ECOMOG was also in Liberia. Indeed, as early as August 1990 ECOMOG was in Liberia. We've heard of the INPFL. We have heard of LURD. We have heard of MODEL. We have heard of the LPC, Liberian Peace Council. All of these groups featured in the theatre that was Liberia during periods the Prosecution says are relevant to this case.

    We will have to figure out what roles or of what significance these groups are, vis-a-vis the analysis of the joint criminal enterprise mode of liability.

    Other things were happening in Liberia and Sierra Leone that are of significance. There were arms embargoes, both by the UN and by ECOWAS. At different periods of time against both Liberia and Sierra Leone. In the context of Sierra Leone against the junta, the government of Johnny Paul Koroma. You had in Liberia DDRR, disarmament, demobilisation, reintegration and rehabilitation. Members of the warring factions were disarmed. Weapons were gathered. Evidence has been presented confirming that the weapons were at some point destroyed. Those are matters your Honours should consider when viewing the context. Was the Liberian-Sierra Leonean border always open? There has been some dispute today about Moses Blah's testimony and whether or not it was us on the Defence bar that spoon fed him the years that he agreed to vis-a-vis the closure of the border. I will come to that later on.

    And now, we start with Libya. The Chief Prosecutor then in his opening statement, Mr Steven Rapp, told the Court that in Libya in the late 1980s, the accused met Foday Sankoh and there was there formulated a plan, a plan which had as its goal to take forcible control over the population and territory of Sierra Leone, the words he used were political and physical control, and to establish a friendly or subordinate government there in order to exploit the natural resources of Sierra Leone.

    Now, that common purpose is, in our view, obviously different from what Ms Hollis now says the common purpose is, but let's not quibble about that, let's assume for the sake of argument that both Mr Rapp and Ms Hollis have it right when they say the common purpose is one of two things, Mr Rapp says political and physical control, Ms Hollis told Her Honour Justice Sebutinde and elsewhere in their brief it is stated that you have the objectives and you have the means. And vis-a-vis the objectives, Ms Hollis says there were two objectives, one was to forcibly control the population and territory of Sierra Leone. That was one objective of this criminal enterprise. The second objective was to pillage the resources of Sierra Leone, in particular the diamonds.

    Separate and apart from the ultimate objectives, Ms Hollis spoke of the means that was contemplated to achieve those objectives and the means in this case, the primary means, was a campaign of terror against the civilians of Sierra Leone. This was said by Ms Hollis on 8 February, page 49149 of the transcript, it also appears in paragraph 574 and 575 of the Prosecution's brief.

    Now, so we have ultimate objectives and we have the means. Our Appeals Chamber has ruled both in our case and in the AFRC case that the common purpose of the JCE is a combination of both, that the common purpose is both the objective, whatever the ultimate objective was, as well as the means. Curiously, the Prosecution suggest the law is in our favour, but in this instance, in a very significant way, the law is in their favour because our Appeals Chamber has also ruled that someone need not plead, the Prosecution specifically, need not plead both the common purpose - sorry, both the objective and the means separately. They can plead one or the other. They don't have to plead both. So an accused can stay in the dark as far as the pleading is concerned regarding, for example, the means.

    Up until recently, and by recently I mean the filing of the Prosecution's amended case summary in August of 2007, the word "terror" had not featured as a common purpose of the JCE. And it was really with the case summary that the Prosecution began to expand on that. They had mentioned it in passing in their pre-trial brief in April of 2007, but this notion of a criminal means to terrorise the civilians of Sierra Leone began to emerge and evolve after the Prosecution's opening statement. So the law favours them in that respect. But let's set that aside for the moment.

    Now, I said Libya. What is the evidence that there was a common purpose agreed in Libya, that Mr Taylor and Foday Sankoh contemplated these ultimate objectives, forcibly control the population and territory of Sierra Leone, pillage the resources using a campaign of terror as the means? You heard TF1-548, Suwandi Camara, testify before this Court. Mr Camara said, and he is not protected, I have checked, Mr Camara said to this Court that he heard from his boss, who was a fellow called Dr Manneh, that Charles Taylor - rather, he heard that Foday Sankoh was the acting leader of the RUF group and that the actual leader was Ali Kabbah. That's one of the aspects of his evidence. He then says that he saw Charles Taylor at the Mataba on two occasions, and he also saw Foday Sankoh at the Mataba. Nothing wrong with that. No testimony of an agreement or meeting of the minds between the two of them in Libya. No testimony of a common purpose regarding terrorising the civilians of Sierra Leone. And then we have Isaac Mongor, TF1-532, Isaac Mongor comes and says he heard from Foday Sankoh that Sankoh met Taylor in Ghana when Sankoh was in custody. Charles Taylor facilitated the release of Sankoh from custody, and then the two of them went on to Libya.

    No evidence from Isaac Mongor about a common plan being conceptualised, none. Incidentally, Issa Sesay disputed that evidence, in the sense that Issa Sesay testified on the 4 August, at page 45369, that Foday Sankoh, in all the time he spent with him, never said that Charles Taylor facilitated his release from jail in Ghana.

    Prosecution also called Moses Blah. Moses Blah was in Libya. At the time he was an adjutant, he was also inspector general of the NPFL later on, Liberian ambassador to Libya and Tunisia later on, Vice-President of the Republic of Liberia, and upon Mr Taylor's departure, President of the Republic of Liberia. The chief Prosecutor led Moses Blah in evidence and he asked Moses Blah a question about Libya. Indeed, I would request that we pull up this transcript, and this is a transcript from 14 May 2008.

  • Could counsel please give a page reference?

  • Yes, my apologies. Page 9812 through 9813. Thank you. Shall we go to line 19 on that first page? Yes. Question by chief Prosecutor Rapp.

    "Q. Did you have contact with Mr Sankoh yourself?

    A. Yes, as I said, we were all training. At the training we will all meet and talk and joke, talk about your government, and he would talk about his government. So we would meet from time to time.

    Q. What was your impression of him?

    A. We didn't take him seriously, no, because he was in the tea shack making tea for me at the time. Because I was adjutant so I didn't take him serious. I didn't take him serious.

    Q. You say you talked about each other's countries. What did he tell you about his country?"

    Answer, on the next page, page 9813:

    "A. Well, he said he has come to train and overthrow his government, because the head of the Sierra Leone government - he had come to overthrow his government, become the head of the Sierra Leone government. But I saw him with 15 men.

    Q. Did you individuals talk about doing anything together in the future?

    Answer, by Mr Blah: "No, we didn't discuss that. We didn't discuss that."

    That's what you have. That's the Prosecution's evidence. Their witness, called by them. He could not confirm a common plan. It may be suggested that Charles Taylor and Foday Sankoh had discussions outside the presence of Moses Blah. Mr Taylor refuted that allegation. Moses Blah, in his capacity there as one of Charles Taylor's senior people, would have known about that plan. Moreover, why did the Prosecution call a witness who could not sustain the plan? It is not for the Defence to prove any other theory in the realm of possibilities. The Prosecution called this witness and he could not confirm a common purpose as having been agreed to by Sankoh and Taylor in Libya.

    Another person called to testify on this issue, a witness who testified late, in January 2008 into February 2008. Your Honours probably know this witness who has been some issues. And all this witness said in relation to this was that Foday Sankoh told him that he had met Mr Taylor in Libya. How does that advance the notion of a common plan? Especially one as detailed as the Prosecution now has it? No evidence of a common plan. And then the Defence called its own witnesses. Now, remember who the Prosecution's key source of information is, TF1-548, Suwandi Camara. We called DCT-125. DCT-125 denied there being a plan in Libya. DCT-179 was called as a Defence witness. He was in Libya, he denied even the interaction between Sankoh and Taylor. Taylor was among the leaders of various revolutionary groups and those leaders stayed at the Mataba. Their fighters and men in training stayed at Camp Tajura. There was a geographical physical distance between the two.

    And our witnesses certainly do not support any notion of a common plan and they specifically dispute the notion that Taylor and Sankoh even interacted to any significant degree. Other witnesses your Honours should consider in relation to this issue, DCT-226, DCT-131, and of course Mr Taylor, the accused.

    Now, one thing that was consistent among the Defence witnesses, and indeed with Suwandi Camara, was that the leader of the Sierra Leonean group was Ali Kabbah. There is a document in evidence about the Mataba that has a picture of Ali Kabbah, identified by DCT-125. There is no dispute between the parties to that extent, in the sense that TF1-548, albeit hearsay evidence, says that his boss, Dr Manneh told his that Ali Kabbah was indeed the leader of the Sierra Leonean group. That's the evidence of record. This is not conjecture, this is not allegations. You juxtapose the allegations vis-a-vis the evidence and you come up with nothing. We are still looking for the common purpose and the evidence that supports it.

    The law is important in this respect, because they have charged Mr Taylor with JCE 1. The mens rea for the different permutations of JCE are different. For JCE 1, you require a shared intent. Now, the Prosecution has said the law right in admitting that Mr Taylor and other members of the JCE must share the same intent. At the Prosecution's brief, page - sorry, paragraph 572, pages 258 to 259, and also in paragraph 560, there is there expressed something to this effect, that Charles Taylor and the other members of the JCE shared the intent to commit all the charged crimes. So there is a shared intent element there. It doesn't end there. There is something else that is of importance. You have in this case the charge of terrorism. Terrorism is a specific intent crime. In civil law systems they refer to it as special intent, dolus specialis. Dolus eventualis will not suffice, recklessness or advertent recklessness will not suffice. So in addition to this notion of a shared intent, it has to be of a special nature, dolus specialis. That means that Mr Taylor must have, as his specific intent and as his purpose, to cause terror in Sierra Leone. The other members of the JCE must have the same intent. We will come to that because the Prosecution's case begins to crumble as you begin to look into this issue. When you look at the issue of the continuity or lack thereof of the alleged JCE and you ask the question whether the various members of the JCE, in its various manifestations through the years, a long period of time, 1988 through 2002, whether they all shared the same intent, I submit to you that there is no such evidence. The Prosecution's brief does not address that issue in any depth whatsoever. They don't address the issue of the specific intent vis-a-vis the other members of the JCE.

    Now, question: When SAJ Musa was advancing towards Freetown before he died in Benguema Barracks, what was his intent? Legal sense of intent. Was it an intent to terrorise the civilian population of Sierra Leone? Was it an intent to forcibly control the population and the territory of Sierra Leone? Was it an intent to pillage the natural resources, in particular diamonds, of Sierra Leone? Or was it to reinstate the Sierra Leone Army? This is a snapshot of one event at a particular time during this entire period, and a key participant in the event. They haven't even addressed the question of whether he was a member of the joint criminal enterprise. Moreover, what is his intent? Issa Sesay told us that the RUF had a different intent in trying to get to Freetown. Can members of the same enterprise have different mens rea? Different intent? We will come to that.

    Bear in mind also this notion of intent, vis-a-vis the evidence you heard about RUF ideology. The TF1-168 testified that the RUF ideology was to win over the civilians. They needed the civilians in order to succeed. That ideology was at the outset of the formation of the RUF. It was communicated to those who were the founding members by Mr Sankoh. Another Prosecution witness, TF1-371 testified also about ideology and how at Camp Naama, Mr Sankoh had something that was similar to the Geneva Conventions that had to be taught to the trainees at Camp Naama. Camp Naama, in Liberia, 1990, Prosecution tells you that two years before criminal means was contemplated to achieve criminal objectives, at least they say one of the objectives was criminal, pillage - we will come to that, because they have a problem there as well - and yet in Camp Naama documents whose contents are similar to the Geneva Conventions are being handed out or considered and used for training of RUF members. This is where you apply the law to the facts, and we are no longer speaking about allegations and theories; we are looking at what the evidence shows.

    Now, we leave Libya and the next place of interest is Burkina Faso. Following Suwandi Camara's evidence, Suwandi Camara says that in Burkina Faso, that there was a meeting in Burkina Faso. He starts out by telling us that the Liberian delegation to Libya and the Sierra Leonean delegation all ended up in Burkina Faso after training in Libya and that in Burkina Faso they also met the Gambians. And he says in Burkina Faso there was a meeting between Charles Taylor, Foday Sankoh, and Dr Manneh, where they each agreed to help each other take over power in their respective countries. That's his evidence. Take over power in their respective countries. I don't recall him saying anything about pillage the resources of their countries. The fact of taking over political power, is that a crime that this Court has the authority to consider? That issue arose in your Honour's AFRC trial judgment.

    Who else spoke about Ouagadougou? Moses Blah spoke about Ouagadougou. Moses Blah told the Court that there were no Sierra Leoneans to be found in Ouagadougou, following the NPFL's training in Libya and when Taylor went to Burkina Faso. Indeed, the evidence of TF1-371 was that Taylor did not frequent Libya. He was actually more likely to be found in Burkina Faso. You notice how this is evolving. I have not even mentioned the Defence witness, this is Prosecution evidence. Moses Blah, there were no Sierra Leoneans in Burkina Faso. Moses Blah says there were no Sierra Leoneans in Burkina Faso, how did this meeting take place that Suwandi Camara is referring to, a meeting between Dr Manneh, Foday Sankoh and Charles Taylor? Conflict between their witnesses.

    Now, Suwandi Camara is also impeached by the absence of evidence. What am I referring to? If there is a meeting of the minds between these three persons to assist each other and his evidence was that after Charles Taylor was assisted in taking over power in Liberia, Taylor would then, in turn, assist the Gambian leader, Dr Manneh and also Foday Sankoh for each of the others to take over powers in their respective countries. Well, there is no evidence before this Court that the Gambians played a role in the invasion of Liberia by Charles Taylor. The Gambians did not play a role in December 1989 when Taylor entered Liberia through Nimba County with his forces. How about the Sierra Leonean delegation? What substantial or significant contribution did Foday Sankoh provide to Charles Taylor in Charles Taylor's revolution at its outset? There is no evidence on record. What is the support? If there was a quid pro quo, a meeting of the minds in Burkina Faso, an agreement or the extension of an agreement originally arrived at in Libya, what did the Sierra Leoneans do for Taylor, when he started his revolution? Nothing. No evidence on record.

    We come to the Liberian revolution, December 1989. Taylor is now in Liberia. On Wednesday, the 9th, Mr Griffiths spoke about our position vis-a-vis Camp Naama. The issue of separate training. The lack of knowledge and consent by Mr Taylor. And you remember the evidence of DCT-299. Isatu Kallon, Mamie I. She told you of the role played by her and her husband Daniel Kallon, as far as providing supplies and provisions for those at Camp Naama. She told you of Isaac Mongor and how insignificant a fellow he was. From her evidence he went to Camp Naama much, much later than he told this Court. And so we stand by our brief and what Mr Griffiths said on Wednesday vis-a-vis Camp Naama. Ms Hollis addressed it a little bit this morning. It is not an issue we need to go into further depth about. The point is why would Sankoh's people train separately, if Taylor and Sankoh had this common purpose in mind? Why would they need provisions from the likes of Mamie I and others if Taylor had abundant materials that he could provide to them? Why did no recruit or trainee at Camp Naama tell you they saw Charles Taylor there? These questions have been raised by Mr Griffiths. From Camp Naama, the next significant event is an allegation of a meeting in Voinjama, Lofa County, Liberia, whereby Charles Taylor oversaw the planning of the invasion of Sierra Leone. Two primary witnesses for the Prosecution in this regard: The same Isaac Mongor, TF1-532 and the other witness I spoke about who testified in January 2008.

    Now, we called several witnesses about this issue, persons who may appropriately be called vanguards, trained at Naama, participated in the invasion, entered Sierra Leone. Bear in mind, we do not have a burden of proof. We did not have to call a single witness. Our client did not have to take the stand. You see the Prosecution frantically trying to challenge us this morning to prove or disprove such and such. They forgot this little basic tenet of criminal proceedings. We did not come up with the rules. The rules were in place since Runnymede, the Magna Carta, long ago, even before then. We had no burden of proof, yet we called several vanguards, DCT-025 testified, there was no such meeting. John Vincent, DCT-215 testified, there was no such meeting. DCT-125, who some people said was at the meeting, denied that there was such a meeting. And I will say that pseudonym slower, DCT-125, not the same as 025 who also had a pseudonym, but 125 said he was not at the meeting. Mr Taylor denied it. DCT-172, Issa Sesay, testified. DCT-062, a vanguard, Martin George, testified about this.

    And so we take snapshot at this point on the eve of the invasion of Sierra Leone and we ask what is the evidence to support the common purpose, vis-a-vis the two ultimate objectives or the means, the campaign of terror? Where is the evidence? Still no common purpose in the evidence.

    Sierra Leone is invaded in March 1991. We have Mr Taylor acknowledging the presence of ULIMO and the need to combine with Foday Sankoh to a limited extent in a mutual alliance of self-defence against ULIMO. We have not disputed that. It started in late 1991, August, ended in May of 1992. What is significant is that ending point, May of 1992, because the Prosecution and the Defence are in agreement that there was something called Top Final. Prosecution witnesses starting with TF1-275, I believe, I cross-examined that witness, mentioned the Top Final. Several other witnesses paraded before the Court said there was something called Top Final. This is the event when Liberian forces in Sierra Leone were pulled back and recalled by Mr Taylor into Liberia. And if we pause there, what is the state of the elements of a JCE? Who are the members of a JCE at this point? What is Mr Taylor's contribution to the JCE at this point? The law requires significant assistance. What is the mens rea of the members of the JCE? Do all of them have the same mens rea? Who are the members, if we know? The onus is on the Prosecution to prove all of that. There is not really much evidence on the record addressing those points.

    Now, Top Final. Top Final finishes or ends towards May/June 1992, and then a question arises regarding what contacts there were with the RUF and Taylor in this period, 1992 through the 25th of May 1997, when the AFRC undertakes a coup d'etat in Sierra Leone, and Johnny Paul Koroma takes over the leadership of Sierra Leone. This morning, Ms Hollis, I think it was Mr Koumjian, spoke about Musa Fayia's evidence. DCT-306, I believe. And Musa Fayia testified that in 1995, they were invited to Gbarnga by Mr Taylor, that from there they went to Ghana, and that they were given some money to launch the book, Footpaths to Democracy. That's what Musa Fayia testified. The Prosecution addresses this issue, contacts between the RUF and Taylor, they address it at paragraph 1195 on page 499 of their brief. It's a very, very short paragraph. And the only evidence it relies on is Musa Fayia's evidence.

    One contact in a period of what, five years?

    Should we forget the law that requires substantial assistance? You give somebody money to launch a book, is that substantial assistance to terrorise the entire population of a country? You give money to somebody to launch a book, is that the same thing as having the specific intent to terrorise Sierra Leoneans? Is that the same thing as having the specific - is that the same thing as having the intent to pillage the resources, in particular the diamonds, of Sierra Leone? I do not concede that this meeting happened. People's memories fade. A long time has passed. Maybe Musa Fayia was mistaken. We do not concede it necessarily, but it is on the record. But the point is when you consider that five-year period, and this is what is used to sustain a joint criminal enterprise that was never there, what was the common purpose?

    And what else was happening at this time in the theatre of Liberia and Sierra Leone? ECOMOG was still present in Liberia. ULIMO had closed the border between Liberia and Sierra Leone. By "closed", I mean ULIMO controlled the border. There has been some dispute about Moses Blah's evidence. We stand by that evidence that on 19 May 2008, Moses Blah testified that ULIMO controlled that border between 1992 until June 1997. Ms Hollis cited the relevant page, page 10193. It is not for us to negate the evidence of a witness the Prosecution called when he responded to a question by counsel and didn't say he misunderstood it. Other witnesses testified about ULIMO's control of the border. Karmoh Kanneh testified about it. Karmoh Kanneh on 9 May 2008 said ULIMO controlled the border from 1992 through 1996. This is at page 9445 through 9446 of that transcript of 9 May 2008. Varmuyan Sherif, TF1-406, testified about ULIMO's control of the border. He said ULIMO controlled the border from 1992 through 1996. The transcript of the 10th of January 2008, page 976 through page 977. You remember we had Sherif draw on a map, our first Defence exhibit, exhibit D-1, the area controlled by ULIMO along the Liberian-Sierra Leonean border. What else was happening in this period, 1992 through 2000, through 1997? On Wednesday, Mr Griffiths spoke about the letters to Talibi, Defence exhibit 15 and Prosecution exhibit 272. Ms Hollis addressed them today as well. We also know that Foday Sankoh is in Abidjan. He is no longer in Sierra Leone. And in that respect as well, Mr Griffiths spoke on Wednesday. Why couldn't Sankoh cross over the border to Liberia to meet Taylor rather than seek assistance from Talibi in Ghana? What else was going on in Liberia at this time? I've spoken of disarmament. Based on exhibit we introduced, Defence exhibit 25, which is a map by the UN's World Food Programme, and it shows Liberia and the various locations where arms were collected from the warring factions in Liberia. There is also the little distraction that Taylor had in 1997 called an election for president. Mr Taylor was engaged at this time with the Council of State from 1995 through his election as President in August 1997.

    Takes common sense to know that he will be engaged in campaigning, trying to secure the votes of Liberians. And then we have exhibit D-4, a letter from Johnny Paul Koroma to Mr Taylor dated 3 October 1997. So we are now in the junta period. The junta takes over on 25 May 1997. A few months later, in October, Johnny Paul Koroma writes Mr Taylor asking for assistance. Assistance of what form? Ammunition, arms and the like.

    Which raises a question: The Prosecution's brief would have your Honours believe that there was this alliance between the RUF and the AFRC. The RUF having been part of the criminal enterprise with Mr Taylor from the very beginning, in the late 1980s, and then the AFRC joining in as members. Why would Johnny Paul Koroma write such a letter to Mr Taylor? A letter that belies any familiarity between the two of them. Why did he not ask the RUF to simply obtain the requested arms and ammunition from Mr Taylor? That letter was in the nature of an introductory letter seeking to procure Mr Taylor's assistance into his cause. Now, it was written in October 1997. By this time the RUF had joined the AFRC at the seat of power in Freetown, and they were now in the junta. It wasn't written during the one-week period before the RUF joined the junta. RUF members were already part of the junta. So what is the state of the criminal enterprise at this time? We have a new group joining the criminal enterprise. What is their intent? Is it just to hold on to power? Is it to pillage the resources of Sierra Leone? Is it to terrorise the population of Sierra Leone? Is it to forcibly control the population and the territory of Sierra Leone? Is their intent shared by other members of the JCE? The common purpose in question, has it been continuous from pre the junta period, as it manifested itself during the junta period? We know from the evidence that the RUF and the AFRC were not a unified group. Far from that. Yesterday, Mr Munyard referred to an uneven and unequal partnership. This is to be found in Defence exhibit 9, page number 2, ERN 00009659. Prosecution exhibit P-63, page 1, says that the merger between the AFRC and RUF was unsuccessful. ERN 00015487. We also have Defence exhibit 84, at page 5, ERN 00007760, which has Sam Bockarie saying, "We were not trusted or respected by the AFRC. The AFRC high command rejected our plans and strategies."

    Let's pause there.

    I've quoted Defence exhibits as well as a Prosecution exhibit. Your Honours should look at these documents closely. We did not come up with these documents. They were disclosed to us by the Prosecution. When you look at D-84 and D-9, they are not our documents. They don't come from some defence archive. The Prosecution disclosed these documents to us. So it is their evidence. Their evidence that shows that, if anything, there was total disagreement between the RUF and AFRC during the junta period. I'm referring now the period from 25 May 1997 through February 1998.

    How can you have a shared intent when core members or participants of a criminal enterprise are in complete disagreement? How can you have a shared intent when Mr Taylor is all the way in Liberia starting out his presidency and Johnny Paul Koroma is seeking an introduction to Taylor? If he's already a member of the joint criminal enterprise, why would he seek such an introduction to Taylor? All of these questions beg for answers. The answers are not to be found in the evidence, unfortunately. So we submit that these documents, as well as other evidence, refutes the part of the Prosecution's brief that suggests that during the junta period there was an alliance and concerted action between the AFRC and RUF. The relevant part of the Prosecution's brief is section 5, page 215, et sec and paragraph 43 et sec.

    We come to the post junta period February 1998 and I would consider the period from then until the January invasion of Freetown. What do we have during this time? The junta is kicked out of Freetown, there is total chaos, no organisation as they fled from Freetown, they ran with their families in complete disarray. They go back and ultimately end up in Kailahun. And now we begin to consider the members of the JCE. We hear of infighting between the two groups. And now, this is not the point to quibble about what one witness said and what another witness said and so on and so forth. They are adjudicated facts by this Court about this issue. Some of them I will read to the Court, because it is important.

    Your Honours will recall that you rendered a decision adjudicating certain facts, CMS 769, the date is 23 March 2009, and in relation to this particular period, we consider adjudicated facts 6 and 7. Adjudicated fact 6 reads. First, I should say adjudicated fact 5 confirms what I said a few minutes ago, the retreat from Freetown was uncoordinated and without any semblance of military discipline.

    We go to adjudicated fact 6:

    "When SAJ Musa learned about Koroma's decision, that the AFRC soldiers should be subordinate to RUF command as part of the plan to recapture Kono District, he was furious. He would not accept the notion that untrained RUF fighters could be in charge of former soldiers and insisted that the purpose of his group was to reinstate the army and that the RUF could not lead such a mission."

    Let's pause there.

    SAJ Musa is saying the purpose of my group is to reinstate the Sierra Leone Army. This is a fact this Court has adjudicated. Where does that fit in with the common purpose of the criminal enterprise? SAJ Musa is a leading figure in the AFRC and he has his own group. Is the intent of his group shared by other members of the criminal enterprise? Is his purpose the same as the common purpose of the criminal enterprise? This belies the Prosecution's theory. Continuing, the fact reads, "In addition, before the operation to recapture Kono took place, a dispute erupted over command and control issues resulting in hostilities between the two factions and the deaths of several fighters. As a result, SAJ Musa and a significant number of AFRC troops loyal to him opted not to participate in or support the operation."

    So we have now reached the stage where members of the alleged enterprise are killing each other. No mention in all of this of what Charles Taylor's role was. This was between other members of the criminal enterprise. Yet the Prosecution says Taylor was the godfather. He was the chief. He could snap his fingers and everything would be straightened out.

    Chaos among the leadership of the two groups. Adjudicated fact 7 speaks of Johnny Paul Koroma in particular. When Johnny Paul Koroma departed for Kailahun District, in 1998, he was given to believe that he would be welcomed there by the RUF. However, when he arrived in Kailahun, he encountered a hostile RUF leadership. He was arrested by Sam Bockarie, Issa Sesay and other RUF fighters. He was then stripped and searched for diamonds and his wife was sexually assaulted. Bockarie placed Koroma under house arrest in Kangama village near Buedu where he remained until mid-1999.

    The former head of the junta in Sierra Leone, Johnny Paul Koroma, is placed under house arrest by the commander of the RUF, Sam Bockarie, for a period that appears to be over a year. And the Prosecution suggest to this Court that the alliance between the two was continuous. Prosecution suggest that the criminal enterprise, if we know what it is, was fluid - sorry, that it was continuous. And so your Honours have to look at this evidence and you have to look at facts. Let's not quibble over what one witness said versus another witness. Let's look at the facts, and if we do consider witness evidence, let's consider the evidence of both sides. The Defence has presented enough evidence, we submit, to rebut the Prosecution's case in its entirety. We are grateful nonetheless to receive the assistance of the Prosecution's witnesses. In almost every instance, theories that we propose are sustained by the very witnesses called by this Prosecution. So that's the period after the intervention.

    And then there's the invasion of Freetown.

    In addition to SAJ Musa being disgruntled, in addition to Johnny Paul Koroma being jailed, the evidence shows that Gullit, in Kailahun, was also put in custody by Sam Bockarie. Gullit left Kailahun and went north towards Koinadugu District to join SAJ Musa. He was disgruntled as he went. Now Gullit is signification because as we know, after the death of SAJ Musa on 23 December at the Benguema barracks 1998, Gullit spearheaded the invasion of Freetown. So what was Gullit's state of mind at this point? Was he still a member of the criminal enterprise as he left Bockarie going towards Koinadugu? After the death of SAJ Musa, what was his state of mind? As they advanced towards Freetown, Prosecution witnesses, I believe Perry Kamara, TF1-360, confirmed that SAJ Musa announced a communications ban with the RUF, that is, no member of his forces were to communicate with Sam Bockarie and the RUF as they were moving towards Freetown. The adjudicated facts also speak of that, if I can find it. I will find it in a minute, but it is here in one sentence that the Court found that - when I find it I will tell your Honours. But this is not an issue in dispute, because SAJ Musa told his troops that they should cease communication with the RUF. In any event, this is the state of play as they moved towards Freetown. What is happening in Liberia?

    Taylor is engaged in the peace process, as well as other matters, that he has to attend to during the year 1998. You remember the presidential papers illustrate the various activities that Charles Taylor was engaged in. Foday Sankoh at this time, where is he? We know in March 1998, actually I think it was March 1997, there is an agreed fact to this effect. Foday Sankoh is arrested in Nigeria. In October 1998, he is put on trial for treason, having been handed over by the Nigerian government to the Sierra Leonean government. He is convicted of treason. He is sentenced to death. So Foday Sankoh is in custody at this time, the other founding member of the alleged criminal enterprise. Sam Bockarie is in charge of the RUF but he's in charge of a disunited RUF. Sam Bockarie, having had a fallout with Dennis Mingo, also known as Superman. So within the RUF family you have chaos. Foday Sankoh is in jail, Sam Bockarie and Superman have fallen out. In fact, there is evidence to the effect that Sam Bockarie had sent people to try and kill Superman. The AFRC, or the SLA as you would call it at this point, is in disarray. Johnny Paul Koroma is in jail, caused by Sam Bockarie. Gullit has fallen out with the RUF. SAJ Musa has ceased communication with the RUF. And they are advancing towards Freetown.

    And then there are the obvious facts, most important of which are, as I've read previously, the objective or purpose of the SLA was to reinstate the Sierra Leonean Army. That was their purpose in going to Freetown. It wasn't to pillage any of the country's resources, it wasn't to forcibly control the territory and the population of Sierra Leone. It was to reinstate the Sierra Leone Army. We say the purpose of the RUF in going to Freetown was to take over political power. Issa Sesay testified to this. Issa Sesay told the Court that from the very beginning in 1991, the RUF wanted to go to Freetown because it was the seat of power and they wanted to take political power. Sesay testified about this on the 19th of August 2010, page 46698, lines 16 through 21. He also made reference to it on the 4th of August 2010, page 45432, lines 11 through 25.

    Adjudicated fact 12. On one occasion during the advance, SAJ Musa and the AFRC troops heard the BBC interview Sam Bockarie over the radio. Bockarie revealed the position of the AFRC fighting forces and explained that it was RUF troops who were approaching Freetown. Soon after, ECOMOG bombarded the area. Musa immediately contacted Sam Bockarie, insulted him and told him that he had no right to claim that the troops approaching Freetown were RUF troops.

    Now, what does that tell you? They hadn't even gotten to Freetown and they were fighting amongst themselves. Sam Bockarie is on the BBC, and it appears he revealed the position of where the AFRC - the SLAs were and ECOMOG bombarded the place. So these are all alleged members of the JCE, a criminal enterprise. Yet, as disjointed as can be.

    Now, and then there is Freetown itself. Despite all attempts made by the Prosecution to place the RUF inside Freetown, we know that the RUF stopped at Waterloo. Issa Sesay testified to that. There is also other evidence on record suggesting that the RUF troops did not make it into Freetown proper. Yes, there was someone like Perry Kamara that was with the AFRC group, TF-360, and I believe there was another radio operator, Alfred Brown, but so what? You had groups that formerly were together during the junta period and yet were squabbling over two RUF members being present with the AFRC. The fact of the matter is the overwhelming evidence in this case confirms that the invasion of Freetown was an AFRC affair, it was undertaken with a common purpose or ultimate objective or goal that is fundamentally different from what the Prosecution has alleged in this case. These are the facts where we've passed the stage of allegations, and the Prosecution cannot rewrite the history of this case, it is far too late for that.

    Now, post-Freetown, what is the state of the common purpose and the JCE?

    There is an exhibit confirming that in April 1999, Foday Sankoh is moved to Lome ahead of the Lome peace talks in July. We know from the record, I believe Moses Blah testified to it, that Dorothy Musuleng-Cooper was an emissary of Charles Taylor sent to Lome to facilitate the talks. This is at page 10314 of 20 2008, Moses Blah's evidence. So Charles Taylor is still playing the role as the point President for peace within ECOWAS, to facilitate resolution of the Sierra Leonean crisis. I understand there was an issue yesterday about this notion of whether Mr Taylor was in fact the point President and what evidence we have to support it. I will address that later on in my presentation, given the little time I have, but I will say this now: We have put in our brief, we have made reference, to documents that show that the leadership of ECOWAS and the UN were aware of Mr Taylor's role vis-a-vis the peace process in Sierra Leone.

    I will give references to these. Your Honours, I would refer you to Defence exhibits 237, 248, and 252. All of these support Mr Taylor's evidence. You remember Mr Taylor testified on 14 July 2009 and he said something to this effect.

    "Let me just add for the judges, this is contained in resolutions of ECOWAS that will be presented to this Court, communiques on the approval of ECOWAS stating exactly what I am saying, asking me to get personally involved on the front line in helping to resolve the issue in Sierra Leone."

    And if you look at paragraph 93 of our brief, through 94, your Honours will find citations to the relevant exhibit.

  • Mr Anyah, sorry to interrupt you but lest I be misunderstood in the question that I put yesterday, I did not, by any means, seek to shift the burden of proof to the Defence. That burden remains with the Prosecution. I was merely seeking a clarification.

  • Thank you, Justice Sebutinde. We did not ascribe that implication to your question. And it was a fair question. And we are happy to respond.

    Now, we have post-January 6, 1999, the Lome peace talks. You remember several exhibits dealing with Taylor's role in facilitating the movement of RUF delegates to Lome. Nothing was hidden. Everything was transparent. There was an exhibit that confirmed Omrie Golley and Ibrahim Bah coming to the Sierra Leone/Liberian border. We know that they travelled through Roberts International Airport to go to Lome. Relevant exhibits, exhibit D-193D, D-193G, D-193H. All of these are UN documents, documents by the special representative of the Secretary-General, Felix Downes-Thomas.

    Now, we are in a court that has a connection to the UN. Your Honours will recall that when we had these documents, the United Nations itself sought to intervene in these proceedings to prevent the Defence from using these documents. We remember one morning how we came to court and there had been all these filings about these documents, and one wonders why that is the case, when the accused is supposed to have the benefit of the bargain, he's supposed to be presumed innocent until proven guilty, the rules allow him to defend himself, to obtain documents and call witnesses, why would the United Nations seek to introduce itself into this proceedings after a two-and-a-half year trial prevent us from presenting these documents? One reason is obvious: The documents destroy the Prosecution's case. The documents completely undercut significant parts of the theories of the Prosecution's case. And it was rather unfortunate that such an intervention was made.

    Now, Taylor plays a significant role in getting the delegates to Lome. We pointed out in our brief the fact that the only picture showing Taylor and Sankoh together was presented by the Defence. Not by the Prosecution. You have members of a criminal enterprise going as far back as the late 1980s and the Prosecution could not come up with a single photograph of the two men together. We presented those photographs. And the photographs never showed the two of them alone. The photographs showed Taylor with Sankoh always in the presence of others, and this was during the negotiations leading up to Lome. The photographs also showed Taylor and Sankoh in the presence of several other African Presidents, Gnassingbe Eyadema of Togo, Tejan Kabbah of Sierra Leone, Olusegun Obasanjo of Nigeria, all pictured in this photograph. I believe Alpha Konare was there as well. Where is the evidence of these two men being so close that one was essentially the surrogate of the other? Sankoh being the surrogate of Taylor. No evidence.

    Still in 1999, after Lome, Taylor again plays a role in bringing peace to Sierra Leone. Johnny Paul Koroma is released, Taylor convenes a summit, late September-early October 1999 in Monrovia between Sankoh and Johnny Paul Koroma to resolve their differences. What was the main difference at this point between the two men? Well, Lome had accord - and, your Honours, if you look in the evidence you will find proof of the fact that the AFRC felt marginalised after Lome. They were not a signatory to the agreement, while Sankoh received the position of Vice-President, and other significant RUF member received ministerial positions, the AFRC was left out of the government. And Taylor's role in October 1999 was to facilitate the peace again.

    What was the state of the JCE at this point? What was the common purpose at that point? Johnny Paul Koroma is no longer part of the government. Is he still part of the JCE? Does he have a specific intent to commit terror, to terrorise the civilian population of Sierra Leone, or is he seeking to gain a position in the Government of Sierra Leone? What was Foday Sankoh's mens rea at that point? Was he a genuine member of the Government of Sierra Leone, as Vice-President? Did he still harbour intentions as the Prosecution alleges to forcibly control the territory and population of Sierra Leone and also to pillage its resources? When you look at the record, you find little answers to these questions. We are still in the realm of allegations. Even when we make closing submissions, we are still speaking of allegations not facts.

    What else has been happening in these countries, Liberia and Sierra Leone during this period of time leading up through 1999 into 2000? We have Defence exhibit D-26. It is the statement of President Tejan Kabbah to the Sierra Leonean Truth and Reconciliation Commission. And there is something interesting there. Kabbah mentions, President Kabbah mentions the Special Task Force, and he mentions how this Special Task Force, consisting of ex-ULIMO and -- ex-ULIMO J and ULIMO-K fighters, how they had been in Sierra Leone since the time of Valentine Strasser, from about 1992 onwards. These are Liberians. These are trained fighters that had some sort of connection to the SLA. They were still distinct, as far as their membership, but there was some connection to the SLA. Kabbah said he found out about it when he assumed the presidency. He didn't know it had been in existence since 1992. He only knew in 1996. There are allegations in this case of Liberian fighters being involved in the conflict in Sierra Leone. Several witnesses came and testified about members of rebel groups who spoke quote unquote, "Liberian English".

    There was an armed force within Sierra Leone made up of mostly Liberians called the Special Task Force, engaged in the fighting during the conflict, and the Prosecution doesn't shed any light on their mens rea, doesn't shed any light on the purpose behind their fighting, doesn't shed any light on the state of mind of David Livingstone Bropleh, their leader. Yet Charles Taylor is supposed to be responsible for that. The allegation is made in a blanket fashion. Liberian fighters subordinated to Taylor. This is what the indictment suggests.

    What else is happening? Defence exhibit 62. I can't remember if the witness through whom it was introduced testified openly or not, but I recall Ms Hollis mentioning the name today and I will just check to be sure. If I may have a moment.

    Open session, TF1-588, Stephen Smith. This document was introduced to the Court. What does it say? Page 3 of 9 of the document says to the Court that Valentine Strasser, yes, if we could scroll up I see it is up, if we could scroll up to where it says March 1995. Yes. Thank you.

    Says: "Strasser then invited the South African private security force Executive Outcomes. By that stage, the RUF rebels were less than 20 miles from the capital although their hold on the rest of the country outside the main diamond mining areas was intermittent." I will skip some lines because I've just looked at the time and I have quite a bit left to cover.

    If we go below where it says December 1995, we will see that, "The EO," which stands for Executive Outcomes, "expanded their operations into rural Sierra Leone, retaking the diamond mining areas by the end of 1995. I will invite your Honours to examine the document in more detail but I have to leave it.

    The point is there is another fighting force in the theatre of Sierra Leone called Executive Outcomes from South Africa. The exhibit confirms that they are retaking the diamond mining areas of Kono. What does the Prosecution's evidence say about what they - about where they fit in the overall scheme of things?

    There is another group called Sandline, referred to in Defence exhibit 27, a British mercenary group. When you look at that exhibit, it's a New York Times article, says that Sandline brought in planeloads of assault rifles, mortars, ammunition, more than 100 tonnes altogether, into Sierra Leone during this period of time that's of relevance to the Court. 100 tonnes of weapons. They were paid $10 million by the US and the British governments to help restore President Kabbah to power.

    We've heard testimony of RUF members struggling to find ammunition. We hear testimony of Daniel Tamba, supposedly carrying five boxes of AK round. What does that compare to 100 tonnes of arms and ammunition brought in by Sandline into Sierra Leone? Where does this fit in with the notion of the criminal enterprise? If Mr Taylor's contribution, as the law requires, is supposed to be substantial, how does that compare with this amount of weaponry? Even, for the sake of argument, that he sent two boxes or ten boxes of AK rounds, through how many years, and how does that constitute significant or substantial assistance? There are no responses to these questions.

    We have, in our brief, cited evidence to the fact that ULIMO ended up trading in arms and ammunition with the RUF, several witnesses testified to that. So the RUF had alternative sources of arms and ammunition, ULIMO being one. ECOMOG was in the theatre at the time. The Prosecution concedes that the RUF captured arms and ammunition from ULIMO. This is at page 122, paragraph 238, of the Prosecution's brief. They cite only one witness's evidence in that regard, but there are other witnesses who testified to the RUF capturing arms and ammunition from ULIMO. We know that - sorry, I said ULIMO. From ECOMOG.

    We know that ECOMOG also committed atrocities during the conflict. On Wednesday, Mr Griffiths showed you Defence exhibit 5A, a video. Your Honours have in your possession, Defence exhibit 269 where the ECOMOG general from India, General Jetley, was complaining that the Nigerian ECOMOG soldiers were trading in diamonds with the RUF. All of this was taking place in Sierra Leone and the Prosecution would have you believe that Taylor was responsible for everything under the sun.

    Now, I don't have enough time, but there are a few issues one must address, and the first one I will deal with is something Mr Koumjian said on Wednesday, regarding David Crane. Mr Koumjian took exception to our brief and our assertion that Mr Crane had no authority to disclose a sealed indictment.

    I need to do this quickly. Madam court manager, if you could please produce for the Court on the overhead the document Mr Koumjian showed. It is CMS 003, as well as the other documents I asked the Court manager to have available in court. The first document would be dated 7 March 2003, CMS 003, Mr Koumjian showed this to the Court on Wednesday. If you go to the second page, yes, this is the order signed by His Honour Judge Bankole Thompson on 7 March, and if we go to where it says orders at the bottom, it reads:

    "Pursuant to rule 53, and after consultation with the Prosecutor, that there be no public disclosure of the indictment or any part thereof or information pertaining to the indictment, the warrant of arrest, the transfer and detention until further order by the Special Court."

    And below we see the seal and the stamp and we see Justice Thompson's signature. We note there is no exception there for any government or country and we submit that "public" includes all others not privy to this exchange between the Office of the Prosecutor and Justice Thompson.

    What's interesting, when David Crane submitted the indictment, he submitted a draft order for Justice Thompson to consider. This order Justice Thompson signed is different from the draft order that was proposed by Crane to the Justice to sign. Can we show the Court what Crane submitted to Justice Thompson to sign? We start with the first page.

  • Your Honour, can I just ask what we are looking at? Is this part of the case file?

  • Yes, this is CMS 001. The first document given to Justice Thompson. It's file stamped with CMS, filed 7 March 2003, at 2 p.m.

  • Mr Anyah, is this part of the public record?

  • Well, I'm not sure, but it is a document in the case. We can go into private session. There is nothing here that is different from the order I have just read, except for one or two sentences.

    Now, can we see the document? May I? Thank you. Okay. I am told by my colleagues it is a confidential document, Madam President. I don't see where - I don't see where it says "confidential" on it. It doesn't say "confidential" on it.

  • Perhaps you could simply simplify this issue and save time by simply telling us what additional words were in the order, the draft order.

  • Okay, thank you, your Honour. It doesn't have the same impact, but it is very important. The draft order submitted by Crane, in that paragraph that Justice Thompson I referred to, the orders paragraph of the document, the draft document submitted by Crane had this line at the end: It says, "Until further order by the Court, or at the discretion of the Prosecutor," regarding non-disclosure.

    So the Prosecution was suggesting to the Court, sign on this document and say this document should not be disclosed until further order by the Court or at the discretion of the Prosecutor. Justice Thompson removed those last words, "at the discretion of the Prosecutor." You won't find it in the order he signed. He removed it. His order is also different from the proposed order by the Prosecution. Theirs was titled, "Decision confirming the indictment", and his is titled, "Decision Approving the Indictment".

    There is a reason the learned judge removed that sentence from that document. He did not want to leave it at the discretion of the Prosecutor to whom and when the Prosecutor should disclose a sealed court document. There is no jurisdiction you go to where a court enters an order, and then there is this special exception for particular governments, that the Prosecutor can at his discretion disclose a sealed indictment. You cannot do it. And in this case, this document proves the intent of the Court, which is come back to the Court, seek permission, before you go waiving an indictment at the breakfast meeting with a diplomat.

    Now, another issue raised. Mr Koumjian said - thank you, Mr Fornah. Mr Koumjian said that we raised the issue of evidence falling outside the temporal or geographic jurisdiction of the Court and we did so untimely, that we waived the issue but your Honours will recall you issued an order last year, CMS 1101, when we filed a motion about the same, the very same issue, and your Honours said in the order that this was a matter that was raised prematurely, that we should raise it at the time of final submissions. Your Honours words were, "The motion was" - this is our brief, paragraph 28, that, "The motion was premature at that stage of the trial, and that the motion was more appropriately addressed by the parties in the final trial briefs or closing arguments." CMS 1101, the 6th of October 2010.

    So that addresses their issue. We haven't waived any issue. We are following the directive of the Court.

    I will take my time on these last three issues. The issue of pillage. Ms Hollis has told the Court that one of the ultimate objectives of the JCE was to pillage the resources of Sierra Leone. The Prosecution, in their brief, say at page 261, paragraph 579, and in court during closing arguments on 9 February, at pages 49292 through 49293, Ms Hollis adds that in any event, one of the - one of the ultimate objectives of the JCE, to pillage the resources of Sierra Leone, is charged in this case. I assume referring to count 11, pillage. Count 11, as Justice Sebutinde pointed out, falls under the rubric of Additional Protocol II and Article 3 common to the Geneva Conventions. Our Article 3 of the Court statute. There is a problem there. Mr Rapp spoke of pillaging the natural resources of a country. Common Article 3, when you look at cases dealing with pillage usually deal with plunder and the like. Then look at count 11. When you look at count 11 in our indictment, what does count 11 say? It doesn't speak of diamonds. It doesn't speak of pillaging the resources of Sierra Leone. It speaks of looting, unlawful taking of property, personal property. There is a difference there legally. On the one hand, they are speaking abstractly about the charge of pillage under Article 3. On the other hand, in practice, they are giving us notice, by virtue of the way count 11 is charged, how they have charged Mr Taylor that what he's to defend is the pillaging that constitutes an unlawful taking of civilian property. Paragraph 28 of the second amended indictment from May 2007, that there was engaged in widespread unlawful taking of civilian property including the following.

    Civilian property is not the same as the natural resources of a country. And there is a distinction it would be made there. The fact that is both of the alleged ultimate objectives of this criminal enterprise are not crimes within the jurisdiction of the Court.

    Next issue about the JCE. This is also important. This Court house in which we sit, Special Tribunal of Lebanon, the Appeals Chamber on 16 February 2011, this year, issued a decision. His Honour Justice Cassese presides over that chamber. The decision is titled, "Interlocutory decision on the applicable law, terrorism, conspiracy, homicide, perpetration, cumulative charges." 16 February 2011. There is an important element to this decision regarding the law and JCE. The judges of the Special Tribunal, in particular in that decision at paragraph 249, suggest that in the case of JCE 3, the extended form of JCE, where you have a specific intent crime like terrorism, a crime requiring special intent, or dolus specialis, it is the better approach under international law not to allow convictions under JCE 3 for special intent crimes like terrorism. You have other special intent crimes that this explanation and suggestion would apply to, genocide, persecution, the crime of aggression. When you have JCE 3 -- and why is that? JCE 3, in addition to the actus reus elements, you require a mens rea element that is generally different from JCE 1. You require that the accused have an awareness that crime - a crime committed by a member of the JCE was a natural and foreseeable consequence of the common purpose. He has to have this awareness. He then also has to willingly go along. In civil law jurisdictions, by civil law meaning personal injury cases, we call it assumption of risk, he has to be indifferent to the risk, in continuing his participation in the JCE that crimes, not necessarily contemplated by him and the others, may be committed by members of the JCE. What this Special Tribunal for Lebanon is saying is that you can't have a lower standard of intent for other members of the JCE who, when they signed up to the criminal enterprise and the concerted plan that was the primary common purpose, did not know of this additional crime to be committed later on by a member of the JCE. And that is significant in this case. It means that some of these other offences that the Prosecution may seek to ascribe to Mr Taylor, in our view, do us a disservice and prejudice us to the extent that they also do not require the degree of intent that the crime of terrorism requires. The thread of this case is terrorism. Terrorism is a specific intent crime. If someone commits another crime that requires dolus eventualis, advertent recklessness, Mr Taylor should not be held responsible for that.

    We ask your Honours to look at this decision. It's an important decision. It is at variance with some of the jurisprudence from the ICTY. In fact, it is at variance from the ICTY Appeals Chamber, but as the judges of the Special Tribunal point out, there have been only four cases that have survived appeal vis-a-vis JCE 3 at the ICTY, General Krstic, Stakic, Tadic and Martic. This is at footnote 368 of the STL Appeals Chamber decision. That is a very problematic mode of liability, to charge someone under JCE 3 in a case like this, especially one involving a specific intent crime, terrorism.

    I said I would yield some time to Mr Griffiths. I have used up more time than expected. It remains for me to thank you for your attention.

  • Thank you, Mr Anyah. Mr Griffiths?

  • Madam President, your Honours, counsel opposite, can I use the remaining ten minutes to touch upon a couple of discrete topics, not in any particular order, and then to deal with a separate matter altogether?

    Mr Koumjian's point this morning regarding the absence of proof as to meetings between Taylor and Bockarie, in the latter half of 1998, Mr Koumjian pushed that point to the stage where it would appear that he was suggesting on behalf of the Prosecution that the defendant bears some burden of proof in terms of providing evidence for the absence of such documentation. But what holds that argument below the waterline is this: If that be the case, that Mr Taylor was anxious to keep that relationship private, why is there documentary proof of his contact with Issa Sesay? Why? If he was seeking to conceal his nefarious activities, why act in one way in relation to Bockarie and another way in relation to Issa Sesay?

    And Justice Sebutinde asked us for references to documents that are available to show contact between Taylor in 1998, and can I invite attention to exhibit D-169, dated 16 October 1998:

    "On the 13th of October 1998, President Kabbah informed me, the Secretary-General, of alleged preparation by Liberia for the dispatch of fighters for an incursion into Sierra Leone. The allegations were vigorously denied by Taylor. UN military observers also detected no evidence of an armed incursion from Liberia."

    Then this: "On the 16th of October, the two Presidents were reported to have spoken by telephone and to describe the matter as a misunderstanding that had been clarified. The two leaders were reported to have agreed to be in regular telephone contact in order to work towards strengthening relations."

    So there is that.

    We then come to this: Exhibit D-175, UN Secretary-General report of the 16th of December 1998, which refers to a meeting of the Mano River Union and the three heads of state agreed to work collectively to restore peace in Sierra Leone and maintain stability in the subregion.

    "The Liberian government subsequently announced that Kabbah had agreed with Taylor's request for cooperation on joint border patrols."

    And moving along swiftly, there is exhibit D-176, a letter to Bill Clinton, the contents to which speak for themselves, and so, consequently, I do not repeat them here.

    The Tiagen Wantee letter, to which Mr Koumjian referred, the point he makes in our submission is without basis. Eddie Kanneh was Secretary of State for the East based in Kenema during the AFRC regime. Thereafter, the evidence is quite clear that he was in bed with Sam Bockarie. So I repeat the question: Why did he need to travel all the way to Conakry in order to seek permission to enter Liberia? The point remains.

    Third point. Issa Sesay should be disbelieved because he's a murderer, he committed atrocities and the like. Very well. Let's apply that standard to all of the Prosecution insider witnesses. Somebody like Zigzag Marzah. Remember the cross-examination? How do you kill a baby, Mr Marzah? Oh, you just hold it by the feet and smash his head against a wall or throw him in the river. Very well, disbelieve Issa Sesay. Also disbelieve him and people like Isaac Mongor.

    Discrete point number 4, at the time of the Camp Naama training between September 1990 and March 1991, Gbarnga was not the headquarters of the NPFL. The NPFL headquarters at that time was many miles away, perhaps 200 miles away, in Buchanan. You recall the point made this morning about his proximity to the camp.

    So far as the point made about RUF personnel being in SAJ Musa's group during the advance on Freetown and vice versa, the evidence, in our submission, is quite clear that that was not as a result of any organisational links between the two groups but rather based on personal links between people like Gullit, who you remember, had had an altercation with Bockarie and had left Kailahun to join SAJ Musa, and so far as the latter is concerned, ample evidence to demonstrate his antipathy towards the RUF.

    Justice Sebutinde asked a question regarding witnesses paid by the Prosecution at the time when WVS should have paid all expenses. We draw attention to rule 39(2) which states, "In the conduct of an investigation," and we stress that, "the Prosecutor may take all measures deemed necessary for the purpose of the investigation including the taking of any special measures to provide for the safety, support and assistance of potential witnesses and sources."

    The Defence position is that only WVS may provide for witnesses after the investigation stage. Rule 34(A) provides for WVS to provide such assistance. And we submit it is an abuse of the Prosecution's discretion under rule 39(2) for the WVS and the Prosecution to pay a person at the same time, because the person is either a potential witness or a witness. The person can't be both at the same time. An individual - and individuals who fall into this category of overlapping payments include: TF1-274, TF1-362, TF1-334, and that list is not exhaustive. But if your Honours require further assistance in that regard, we may be in a position to provide that in writing.

    Next point: The reason why we have dwelt on JCE in detail is that it lays the basis for all the alleged interactions between Charles Taylor and the RUF, or the RUF/AFRC, and it therefore establishes the factual basis for all other modes of liability. That's why it's so central to this case.

    Finally this, your Honours: When in July of 2007 I took over as lead counsel for Charles Taylor, it was on the basis that this case would last 12 to 18 months. Three and a half years later, we have, to everyone's relief, finally got to this stage. It has been on occasion a very rocky road. On occasions, both anger and passion have come to the surface. Life at the front line of a trial such as this cannot be unemotional.

    Now, on the 25th of February of this year, I walked out of this Court despite your request, Madam President, that I remain. I make it clear, I did not leave through anger, but principle, because I am enjoined by the code of conduct of the Bar in England and Wales, and I quote, "To promote and protect fearlessly and by all proper and lawful means the lay client's," that's Mr Taylor's, "best interests and do so with regard to - without any regard to my own interests or to any consequences either to myself or to any other person."

    However, if it is felt that I have been disrespectful to this Court, then I am willing to make a formal apology to this Court, in order to draw a line finally underneath these proceedings and bring it to an amicable end. We have always treated this tribunal and these proceedings with respect and will continue to do so.

    But before I sit down, I am singularly unimpressed by Mr Koumjian's attempt this morning to see some kind of moral high ground by emotionally stating that the Prosecution were here representing the interests of victims. We are human too. We, too, appreciate that the inhumane acts which were conducted in Sierra Leone. But the point is this: Emotion is no useful guide to a fact finder in their task; it is a distraction. But before I sit down, I must say thanks to your Honours to all the Court staff, for whatever organ of the Court they belong to, and also thank those opposite for their endeavours ensuring that this trial has proceeded smoothly, and it has been a personal honour for me to have been involved in this trial. Thank you very much.

  • Mr Griffiths, I would like, on behalf of myself and my learned colleagues, to first deal with the matter that you raised personally concerning the apology and your willingness to give that and to draw a line. And we will proceed in that way and we will hear you out.

  • Well, I do apologise to the Court.

  • Thank you. That will draw a line under that matter and bring it to an end.

    As there are no other matters from the parties, I therefore, in accordance with the provisions of rule 87(A) of the rules of procedure and evidence declare the hearing closed and that the Trial Chamber shall now deliberate in private.

    The parties will accordingly be notified when a judgment is to be delivered.

    I, too, take the opportunity, on behalf of my learned colleagues and myself, to thank counsel, the court management service, our own Trial Chamber staff, the interpreters, transcribers and the many others who have worked throughout this trial, for their dedication and their contribution.

    The Court will be adjourned to a date to be fixed.

    Please adjourn the court.

  • [Whereupon the hearing adjourned at 1.34 p.m.]