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

  • (Open session)

  • (Accused entered court)

  • (Upon commencing at 11.00 a.m.)

  • Will the registry please call the case.

  • The Special Court for Sierra Leone is sitting in an open session for the Appeal Judgement in the case of the Prosecutor versus Charles Ghankay Taylor, Justice George Gelaga King presiding.

  • Thank you. I will now take appearances.

  • Good morning, Mr president, Your Honours, opposing counsel. Appearing for the Prosecution today, Brenda J Hollis, Nicholas Koumjian, Mohamed A Bangura, Nina Tavakoli, Ruth Mary Hackler, Ula Nathai-Lutchman, Coman Kenny, Christopher Santora, Alain Werner. And we're also pleased to have present special consultants David M Crane, Sir Desmond de Silva, and James C Johnson.

  • Thank you, Madam Prosecutor.

  • Good morning, Mr president, Good morning, Your Honours, Madam Prosecutor. Good morning, members of the Prosecution, good morning. May it please the court appearing for the Defence this morning myself, Morris Anyah. I am joined by co-counsel Dr Eugene O'Sullivan, Mr. Christopher Gosnell, and Ms Kate Gibson. Our expert legal consultant, Ms Magda Karagiannakis joins us. Some of those seated behind us are legal assistants Mr Michael Hertz, Ms Yael Vias Gvirsman, Ms Alexandra Popov, Ms Szilvia Csevar, and Mr Neelan Tharmaratnam. Our team administrator is Mr James Kamara, and he joins us. The Principal Defender of the Special Court, Ms Claire Carlton-Hanciles. From our office in Monrovia, Liberia, we welcome Laveli James Supuwood. And last but not least our client, Charles Ghankay Taylor, is present in court. Thank you.

  • Thank you, Mr Anyah.

    Good morning, Mr Taylor.

    The Appeals Chamber for the Special Court for Sierra Leone, SCSL, convenes today pursuant to its scheduling order, issued on 27 August 2013, to deliver the Judgement on Appeal in the case of Prosecutor against Charles Ghankay Taylor. Following the practice of the Special Court, I will not read out the text of the judgement except for the disposition. Instead, I will summarise some of the main findings of the Appeals Chamber. This summary is neither exhaustive nor part of the judgement itself, which is the only authoritative account of the Appeals Chamber's decisions.

    Copies of the written judgement will be available from the Registrar after this hearing.

    This case concerns the individual criminal liability of Charles Ghankay Taylor, formerly president of Liberia for crimes committed by the Revolutionary United Front and Armed Forces Revolutionary Council in the territory of Sierra Leone between 30 November 1996 and 18 January 2002. These groups will be collectively referred to as RUF/AFRC.

    On 7 March 2003 an indictment against Mr Taylor was confirmed by the SCSL and a warrant of arrest was issued. He stepped down from the presidency of Liberia on 11 August 2003 and went into exile in Nigeria. On 29 March 2006, he was arrested by the Nigerian authorities and transferred into the custody of the Special Court. The trial commenced on 4 June 2007 and closed on 11 March 2011. On 26 April 2012 the Trial Chamber found Mr Taylor guilty on all 11 counts of the indictment under Article 6(1) of the Special Court Statute. Specifically, the Trial Chamber found him individually criminally liable for aiding and abetting the commission of crimes charged in all 11 counts between 30 November 1996 and 18 January 2002 in the districts of Bombali, Kailahun, Kenema, Kono, Port Loko and Freetown in the Western Area. It further found Mr Taylor individually criminally liable for planning the commission of crimes charged in all 11 counts between December 1998 and February 1999 in the districts of Bombali, Kailahun, Kono, Port Loko, Freetown and the Western Area of Sierra Leone.

    On 30 May 2012 the Trial Chamber sentenced the Appellant to a single term of imprisonment of 50 years. Both the Defence and the Prosecution appealed. The Defence filed 45 grounds of appeal but subsequently withdrew ground 35. The Prosecution filed four grounds of appeal. In summary, the Defence challenges the Trial Chamber's evaluation of the evidence, its finding that the RUF/AFRC operational strategy was characterised by a campaign of crimes against the civilian population of Sierra Leone, the Trial Chamber's articulation of the law of individual criminal liability, the Trial Chamber's conclusion that Mr Taylor's individual criminal liability for the crimes charged in the indictment was proved beyond a reasonable doubt, alleged irregularities in the judicial process, and finally challenges the sentence imposed by the Trial Chamber.

    The Prosecution challenges the Trial Chamber's finding that certain crimes were not properly pleaded in the indictment, the Trial Chamber's failure to enter convictions for ordering and instigating the commission of the crimes, and finally the sentence imposed by the Trial Chamber.

    The Appeals Chamber summarily dismisses Defence grounds 18, 20, and 33 in accordance with the standard of review on appeal and the practice direction on the structure of grounds of appeal.

    The Appeals Chamber has dealt with the remaining grounds of appeal in sections 3 to 10 of the Appeal Judgement. I will now summarise the Appeals Chamber's reasoning and conclusions.

    The indictment.

    Section 3 of the Appeals Judgement addresses grounds of appeal relating to the indictment. In its ground 3 the Prosecution submits that the Trial Chamber erred in law in finding that the pleading of locations using inclusive language such as, and I quote, "various locations" in a district, "throughout" a district, was defective.

    In the alternative, the Prosecution contends that the Trial Chamber erred in law by failing to consider whether the defects were cured or harmless. The Appeals Chamber concludes, however, that it is for the Trial Chamber to determine in each case whether non-specific and inclusive pleading of location is sufficient in accordance with the accused's fair trial rights and that in this case the Trial Chamber did not err in law in finding that such pleadings of locations in the indictment was defective.

    The Appeals Chamber further holds that even though a Trial Chamber may, in the interests of justice, and consistent with the rights of the accused, consider whether a defective pleading was cured, the Prosecution may not rely on a defective pleading on the expectation that it will be subsequently rectified by the Trial Chamber. The Trial Chamber is not obliged to find a cure for a defective indictment. For these reasons, the Appeals Chamber dismisses Prosecution ground 3.

    Evaluation of evidence.

    Section 4 of the Appeal Judgement addresses grounds of appeal relating to the Trial Chamber's evaluation of evidence. In its 22 grounds of appeal, which are collectively referred to as the evidentiary submissions, the Defence challenges the Trial Chamber's evaluation of the evidence and its findings of fact which may be grouped into three categories: One, challenges to the Trial Chamber's articulation and general application of the law of evidence; two, challenges to the Trial Chamber's specific findings of fact based on alleged systematic errors in the evaluation of evidence; and three, challenges concerning other errors the Trial Chamber allegedly made in its evaluation of particular evidence.

    The contention of the Defence on appeal is that Mr Taylor's conviction rests largely on hearsay evidence often uncorroborated which the Defence submits constitutes errors of law and fact. In regard to the alleged errors of fact, the Appeals Chamber rejects the submission that the Trial Chamber relied on uncorroborated hearsay evidence in reaching findings of fact.

    Having reviewed the Trial Chamber's reasoning on findings in detail, the Appeals Chamber concludes that the Trial Chamber relied on a combination of direct, circumstantial, and hearsay evidence in reaching its findings and the evidence could equally, if not more accurately, be characterised as direct and circumstantial evidence supported by hearsay evidence.

    In regard to the alleged error of law, the Appeals Chamber rejects the Defence submission that uncorroborated hearsay evidence can never be the sole or decisive basis for a conviction, since the authorities on which the Defence relies do not support this submission.

    The Appeals Chamber notes that the general chamber of the European Court of Human Rights in the case of Al-Khawaja and Tahery held that reliance on an uncorroborated hearsay statement as the sole or decisive basis for a conviction is not precluded as a matter of law and does not, per se, violate the accused's rights to a fair trial.

    The Defence also argues that the Trial Chamber erred in law in its approach to adjudicated facts. The Appeals Chamber, however, finds that the Trial Chamber applied the established approach of the Special Court regarding adjudicated facts which, as Defence argued before the Trial Chamber, is consistent with the jurisprudence and the Rules of the Special Court. The Appeals Chamber finds no error.

    With regard to the alleged systematic errors in the evaluation of evidence, and particular errors in specific findings of fact, the Appeals Chamber concludes that the Trial Chamber properly articulated the law, carefully and cautiously evaluated the evidence and explained in detail its evaluation of the evidence and findings of fact.

    Under this Court's Statute, Rules, and jurisprudence which create a framework for evidentiary evaluation that is flexible while principled, the Trial Chamber has the primary obligation to assess and weigh evidence and is given broad discretion to do carefully -- to do so. That discretion is not limitless, however, and the Trial Chamber is required to carefully and cautiously evaluate the totality of the evidence and the record in accordance with the fundamental principles of the presumption of innocence and the fairness of the proceedings.

    The Appeals Chamber holds that the Defence based its challenges on legally erroneous formulas and proscriptions that would lead to unreasoned or categorical acceptance or rejection of evidence. The Appeals Chamber furthers holds that the Trial Chamber properly articulated and properly applied the law consistent with the institute, the Rules, and this Chamber's jurisprudence.

    In explaining the Trial Chamber's evaluation of the evidence, the trial judgement meticulously and extensively sets out the parties' submissions at the trial on each allegation, the evidence relevant to each allegation, the Trial Chamber's evaluation of that evidence, and the Trial Chamber's ultimate finding based on evaluation of the relevant evidence.

    This deliberate and detailed approach has unquestionably facilitated the Appeals Chamber's review of the Trial Chamber's reasoning and findings. Having reviewed the Trial Chamber's evaluation of the evidence in light of the parties' submissions, the Appeals Chamber concludes that the Trial Chamber thoroughly evaluated the evidence for its credibility and reliability and applied the standard of proof beyond reasonable doubt when determining the sufficiency of the evidence supporting a conviction.

    The Appeals Chamber further concludes that all findings of fact challenged by the Defence were reasonable in light of the evidence as a whole and the Trial Chamber's careful and cautious approach to the evaluation of evidence.

    For these reasons, the Appeals Chamber finds no merit in the evidentiary submissions.

    The RUF/AFRC operational strategy.

    Section 5 of the Appeal Judgement addresses grounds of appeal relating to the Trial Chamber's findings regarding the RUF/AFRC operational strategy. The Trial Chamber found that the RUF/AFRC operational strategy was characterised by a campaign of crimes against the Sierra Leonean population including the crimes charged in all 11 counts of the indictment which were inextricably linked to the strategy of the military operations themselves. This strategy entailed a campaign of terror against civilians as a primary modus operandi to achieve military gain at any civilian cost and political gains in order to attract the attention of the international community and improve their negotiating stance with the Sierra Leonean government.

    In grounds 17 the Defence submits that no reasonable trier of fact could have found that the RUF/AFRC had an operational strategy to commit crimes. The Appeals Chamber accordingly considered whether the Trial Chamber's findings reasonably demonstrates first a consistent pattern of crimes against civilians as opposed to opportunistic and sporadic commission of crimes; second, the RUF/AFRC leadership's involvement in organising, directing, and perpetrating crimes; and third, that the commission of crimes was directed to achieving the RUF/AFRC's political and military goals.

    First, the Appeals Chamber opines that the Trial Chamber reasonably found a consistent pattern of crimes against civilians by the RUF/AFRC throughout the indictment period. In each period of the conflict, the RUF/AFRC directed a widespread and systematic attack against the civilian population of Sierra Leone through the commission of crimes which included killings, enslavement, physical violence, rape, sexual slavery, and looting against large numbers of civilian victims. Each and all of these crimes were horrific and shocked the conscience of mankind.

    Second, in the Appeals Chamber's view, the Trial Chamber's findings fully support the conclusion that throughout the indictment period this pattern of crimes against civilians was organised, ordered, directed, and committed by the RUF/AFRC leadership. The Trial Chamber's findings detailed the personal and direct involvement of the RUF/AFRC leadership in the commission of crimes against civilians and included Sam Bockarie's personal attacks against civilians in the Kenema District, the repeated instructions by Bockarie, Johnny Paul Koroma, Issa Sesay, Alex Tamba Brima, and others to make areas "fearful," by which they meant killing, mutilating, raping and burning, the organised and systematic abduction and enslavement of men, women, and children, and the direct involvement of many commanders in many crimes.

    Third, the Appeals Chamber concludes that throughout the indictment period the Trial Chamber's findings demonstrate that crimes against individual civilians were directed to achieving the RUF/AFRC's political and military goals. The Appeals Chamber notes that crimes against civilians continued to be used to achieve political and military goals even as those goals changed during the course of the conflict.

    Crimes of enslavement, sexual violence, and conscription and use of child soldiers, as well as involving physical violence and acts of terror were committed throughout the indictment period to support and sustain the RUF/AFRC and enhance its military capacity and operations. Throughout that period, the RUF/AFRC leadership used forced farming for its sustenance, forced labour for its logistics, children for its soldiers, and sexual violence and slavery to undermine the stability of the civilian communities. To obtain the weapons it needed, the RUF/AFRC leadership enslaved civilians to mine diamonds, used children as their guards, and terror to ensure RUF/AFRC domination. When the RUF/AFRC seized and maintained new territory, the same pattern of crimes was repeated.

    During the junta period, faced with a need to maintain its new-found authority, the RUF/AFRC committed crimes against civilians to minimise dissent and resistance and punish any support for President Kabbah, the CDF, or ECOMOG. Following the intervention and their defeat by ECOMOG, struggling to regroup and regain lost territory, the RUF/AFRC committed crimes against civilians to sustain itself, clear and hold territory, control the population, eradicate support for its opponents, and attract the attention of the international community. During the Freetown invasion, the RUF/AFRC devastated Freetown in order to secure the release of Foday Sankoh and force the government to the negotiating table.

    After the Freetown invasion and Lome Peace Accord, having achieved Sankoh's freedom and place in government through the commission of crimes against civilians, the RUF/AFRC committed further crimes against civilians to maintain itself as a fighting force and to ensure the continued supply of diamonds.

    The Appeals Chamber is further satisfied that the Trial Chamber's findings show that the RUF/AFRC used acts of terror as its primary modus operandi throughout the indictment period. The RUF/AFRC pursued a strategy to achieve its goals through extreme fear by making Sierra Leone "fearful." The primary purpose was to spread terror, but it was not aimless terror. Barbaric brutal violence was purposefully unleashed against civilians with the aim of making them afraid, afraid that there would only be more unspeakable violence if they continued to resist in any way, continued to stay in their communities or dared to return to their homes. It also made governments and the international community afraid, afraid that unless the RUF/AFRC's demands were met thousands more killings, mutilations, abductions, and rapes of civilians would follow. The conflict in Sierra Leone was bloody because the RUF/AFRC leadership deliberately made it bloody.

    For these reasons, the Appeals Chamber affirms the Trial Chamber's finding that the RUF/AFRC operational strategy was aimed at achieving its political and military goals through a campaign of crimes against the Sierra Leonean civilian population, using terror as its primary modus operandi.

    Taylor's acts, conduct, and mental state.

    Section 6 of the Appeals Judgement -- of the Appeal Judgement summarises the Trial Chamber's factual findings as to Mr Taylor's acts, conduct, and mental state during the indictment period. These factual findings have been affirmed.

    The Trial Chamber found that during the indictment period, Taylor directly or through intermediaries supplied or facilitated the supply of arms and ammunition to the RUF/AFRC. He sent small but regular supplies of arms and ammunition and other supplies to the RUF/AFRC from 1997 to 1998 and substantial amounts of arms and ammunition to the RUF/AFRC from 1998 to 2001. He also facilitated much larger shipments of arms and ammunitions from third party states to the RUF/AFRC, including the Magburaka shipment in late 1997 and the Burkina Faso shipment in late 1998. The Trial Chamber also found that during the indictment period, Mr Taylor provided ongoing advice and encouragement to the RUF/AFRC and that there was ongoing communication and consultation between him and the RUF/AFRC leadership. From the time of the intervention, he advised the RUF/AFRC leadership to attack, capture, and maintain control over Kono District, a diamondiferous area, for the purpose of trading diamonds with him for arms and ammunition. He also provided advice to the RUF/AFRC in respect of peace negotiations and disarmament including advising Issa Sesay and not to disarm and to resist disarmament in Sierra Leone.

    The Trial Chamber further found that Mr Taylor provided the RUF/AFRC with military personnel and provided sustained and significant communications and logistics support. Communication support enhanced the capability of the RUF/AFRC leadership to plan, facilitate, or order RUF/AFRC military operations during which crimes were committed, enabled the RUF/AFRC to coordinate regarding arms shipments, diamond transactions and military operations, and assisted the RUF/AFRC to evade attacks by ECOMOG forces.

    The logistical support he provided - the RUF guesthouse, the provision of security escorts, the facilitation of access through checkpoints, and the much-needed assistance with transport of arms and ammunition by road and by air support - enhanced and sustained the provision of arms and ammunition by Mr Taylor to the RUF/AFRC. He also provided a range of other support including financial support, safe haven, medical support, herbalists and food, clothing, cigarettes, alcohol, and other supplies.

    In regard to the Freetown invasion of January 1999, the Trial Chamber found that in early November 1998, Sam Bockarie requested arms and ammunition from Mr Taylor to support a major attack. Bockarie and an RUF/AFRC delegation then went to Monrovia to seek Taylor's advice and to secure the arms and ammunition needed for the attack. Sam Bockarie met with Mr Taylor in Monrovia where they designed a plan, the Bockarie/Taylor plan, for the RUF/AFRC forces to carry out a two-pronged attack on Kono and Kenema with the ultimate objective of reaching Freetown. Taylor instructed Bockarie to make the operation "fearful" in order to force the government into negotiation and to free Foday Sankoh from prison. He also stressed to Bockarie the need to first capture Kono for its diamond worth.

    Taylor was further instrumental in procuring the Burkina Faso shipments for the RUF/AFRC to use in the Freetown invasion. The shipment was unprecedented in its volume. On his return and following discussions with his commanders, Bockarie briefed Taylor and Taylor instructed Bockarie to use all means to get to Freetown. The Trial Chamber found that by the beginning of the indictment period, Taylor knew of the RUF and the crimes it had previously committed. He also knew that in early 1996, disgruntled by the decision to hold elections before a peace agreement was signed, Sankoh ordered Operation Stop Election during which RUF forces committed numerous atrocities against civilians including carving RUF on the chests of civilians and the amputation of the fingers and/or hands of those who attempted to vote.

    The Trial Chamber further found that Taylor knew of the RUF/AFRC operational strategy and intention to commit crimes, as well as the ongoing crimes committed by the junta, as early as August 1997, following his election as president of Liberia. His national security adviser provided him with daily briefings including press and intelligence reports regarding the situation in Sierra Leone. As president of Liberia, Taylor was also a member of the ECOWAS Committee of Five on the situation in Sierra Leone and would have received and read ECOWAS reports on Sierra Leone. Reports on the crimes taking place in Sierra Leone were "at the core" of discussions by the ECOWAS Committee of Five. At his trial, Mr Taylor testified that if someone was providing support to the RUF/AFRC by April 1998 they would be supporting a group engaged in a campaign of atrocities against the civilian population of Sierra Leone.

    He further testified that in May 1998 there were news reports of a horrific campaign being waged against the civilian population in Sierra Leone, and by August 1998 the RUF/AFRC's crimes were notorious. The Trial Chamber accepted this testimony.

    The law of individual criminal liability.

    Section 7 of the Appeal Judgement addresses grounds of appeal relating to the Trial Chamber's articulation of the law of individual criminal liability.

    The Defence submits in grounds 11, 16, 19, 21 and 34, that the Trial Chamber erred as a matter of law in articulating the law of individual criminal liability under Article 6(1) of the Statute. As with all issues of law, the Appeals Chamber looks first to the constitutive documents of the Special Court; that is to say, the agreement between the government of Sierra Leone and the United Nations and the statute of the Special Court which the accused -- the Appeals Chamber has heard that the object and purpose of the statute is to ensure that "all those who have engaged in serious violations of international humanitarian law, whatever the manner in which they may have perpetrated, or participated in the perpetration of those violations, must be brought to justice."

    The prohibition and criminalisation of attacks against civilians is one of the essential principles of international humanitarian law, and this principle is firmly established in the Statute. The Appeals Chamber identifies the actus reus and mens rea elements for the forms of individual criminal liability set out in Article 6(1) by ascertaining customary international law applicable at the time the crimes were committed. In this regard, it examines its own jurisprudence, the post Second World War jurisprudence, and other sources of international law as provided in Rule 72 bis. In addition, the chamber looks to the jurisprudence of the ICTY and ICTR for guidance.

    First, with respect to the actus reus of planning liability, the Defence contends that the Trial Chamber erred by failing to require and find that Taylor planned particular concrete crimes. The Appeals Chamber rejects this submission. In several cases, it has upheld planning convictions for crimes committed in a wide geographic area, over an extensive period of time, and involving a large number of victims, and in none of those cases was it required that an accused be found to have planned a particular or concrete crime. The Appeals Chamber sees no error in the Trial Chamber's articulation of the law of planning liability.

    Second, with respect to the actus reus of aiding and abetting liability, the Appeals Chamber rejects the Defence submission that the Trial Chamber erred in law by failing to find that Taylor's assistance was to the crime as such, by which it means that the Trial Chamber was required to find that Mr Taylor provided assistance to the physical actor who committed the actus reus of the crime and that the assistance was directly used in the perpetration of the specific crimes. Having considered the statute and jurisprudence, the Appeals Chamber concludes that the actus reus of aiding and abetting liability is established by an accused's acts and conduct that have a substantial effect on the commission of the crimes, not by the particular manner by which the accused assisted the commission of the crimes, the Appeals Chamber further concludes that aiding and abetting liability, specifically provided for in Article 6(1) of the Statute, applies equally to those most responsible for the large-scale and organised commission of crimes and those responsible for the commission of individual or isolated crimes.

    In the Appeals Chamber's view, where the evidence establishes that the crimes were committed in the implementation of a plan or strategy to commit such crimes, triers of fact may properly consider whether, by aiding and abetting the planning, preparation, execution of the plan or strategy, an accused's act and conduct thereby had a substantial effect on some or all of the crimes committed in furtherance of the plan or strategy.

    Third, with respect to the mens rea of aiding and abetting liability, the Defence claims that the Trial Chamber erred by applying a "knowledge standard" rather than a "purpose standard" in the assessment of Taylor's mental state regarding the consequences of his acts and conduct. The Appeals Chamber rejects this submission. It holds that under customary international law, an accused's knowledge of the consequences of his acts or conduct - that is, an accused's "knowing participation" in the crimes - is a culpable mens rea standard for individual criminal liability.

    The Appeals Chamber does not accept the Defence submissions that the law of aiding and abetting liability violates the principle of personal culpability. It rejects the suggestion that the law applied by the Trial Chamber criminalises all assistance to parties to an armed conflict. The Appeals Chamber concludes that the requirement that the acts or conduct of the accused had a substantial effect on the commission of the crimes ensures that there is a sufficient causal link, a criminal link, between the accused and the commission of the crimes before an accused's conduct may be adjudged criminal. This requirement is sufficient to ensure distinctions between those who may have had an effect on non-criminal activity and those who had a substantial effect on crimes. The Appeals Chamber further holds that the distinction between criminal and non-criminal acts of assistance is not drawn on the basis of the act in the abstract but on its effect in fact.

    It also holds that the convictions entered by the Trial Chamber are fully in accordance with the strict requirements that an accused can only be held liable for his own conduct and only when the actus reus and mens rea elements of participation in the commission of the crimes are proved beyond reasonable doubt.

    Finally the Appeals Chamber concludes that mere awareness that the possibility crimes will be committed in an armed conflict does not suffice for the imposition of criminal responsibility under the law, and that the Trial Chamber did not rely on awareness of such a possibility. Rather, based on the specific and concrete information of which Mr Taylor was aware, the Trial Chamber found that Mr Taylor knew of the RUF/AFRC operational strategy, knew of its intention to commit crimes, and was aware of the essential elements of the crimes.

    Having concluded that customary international law is clear as to the actus reus and mens rea elements of aiding and abetting liability, the Appeals Chamber rejects the Defence submission that there is evidence of opinio juris and state practice modifying customary international law. In the Appeals Chamber's view, the examples offered by the Defence remain at the level of mere assertion and the law on which the Defence relies is not supported by the law as actually articulated and applied by the Trial Chamber. The Appeals Chamber agrees with the law articulated by the Trial Chamber's articulation and application of the law.

    Finally, this Appeals Chamber is not persuaded by the recent ICTY, International Criminal Tribunal for the former Yugoslavia, in Perisic that "specific direction" is an element of aiding and abetting liability under customary international law. The Appeals Chamber opines that the ICTY's jurisprudence does not contain a clear, detailed analysis of the authorities supporting the conclusion that specific direction is an element under customary international law. Although the Perisic Appeals Judgement introduces novel elements in its articulation of specific direction which may perhaps be developed in time, this Appeals Chamber is not persuaded that there are cogent reasons to depart from its holding that the actus reus of aiding and abetting liability under article 6(1) of the Statute and customary international law is that the accused's act and conduct of assistance encouragement and/or moral support had a substantial effect on the commission of each crime charged for which he's to be held responsible.

    Accordingly, the Appeals Chamber concludes that specific direction is not an element of the actus reus of aiding and abetting liability under Article 6(1) of the Statute or customary international law.

    For these reasons, the Appeals Chamber dismisses Defence grounds 16, 21, and 34.

    Taylor's criminal liability.

    Section 8 of the Appeal Judgement addresses grounds of appeal relating to the Trial Chamber's conclusions that Mr Taylor is individually criminally liable for the crimes charged in the indictment and found proved beyond reasonable doubt.

    In grounds 22 to 32, the Defence submits that the Trial Chamber erred in law in concluding that the actus reus of aiding and abetting liability was proved beyond reasonable doubt. The Appeals Chamber notes that the crimes charged in the indictment were committed in furtherance of the RUF/AFRC operational strategy to achieve its political and military goals through a campaign of crimes against the Sierra Leonean civilian population using terror as its primary modus operandi.

    The Appeals Chamber affirms the Trial Chamber's qualitative and quantitative assessment of the effect of Taylor's acts and conduct in the commission of the crimes in light of the whole of its findings, the specific factual circumstances, and the consequences established by the evidence.

    The Appeals Chamber further affirms the Trial Chamber's conclusion that Mr Taylor's acts and conduct had a substantial effect on the commission of the crimes by enabling the RUF/AFRC operational strategy, enhancing the RUF/AFRC capacity to implement its operational strategy and encouraging the RUF/AFRC's military operations and attacks against the civilian population in furtherance of its operational strategy.

    The Appeals Chamber accordingly affirms the Trial Chamber's conclusion that the actus reus of aiding and abetting liability was proved beyond reasonable doubt.

    In grounds 17 and 19, the Defence challenges the Trial Chamber's conclusion that Mr Taylor possessed the requisite mens rea for aiding and abetting liability. The Appeals Chamber accepts the Trial Chamber's finding that the only reasonable conclusion, based on the totality of the evidence, was that Mr Taylor knew of the RUF/AFRC operational strategy and its intention to commit crimes. The Appeals Chamber further affirms the Trial Chamber's conclusion that Mr Taylor knew that his support to the RUF/AFRC would assist the commission of crimes in the implementation of the RUF/AFRC operational strategy. The Trial Chamber also found that Mr Taylor was aware of the specific range of crimes being committed during the implementation of the RUF/AFRC operational strategy and was aware of the essential elements of the crimes. The Appeals Chamber agrees with the Trial Chamber's conclusion that Mr Taylor possessed the requisite mens rea for aiding and abetting liability.

    In grounds 10 to 13, the Defence challenges the Trial Chamber's conclusions that the actus reus of planning liability was proved beyond reasonable doubt for crimes committed during the Freetown invasion. This issue concerns the relationship between the Bockarie/Taylor plan for the invasion of Freetown and the commission of the crimes during and after the Freetown invasion, and whether the Bockarie/Taylor plan had a substantial effect on the crimes committed. The Appeals Chamber recalls that Taylor instructed Bockarie to make Freetown "fearful." The Appeals Chamber accepts the Trial Chamber's findings that Alex Tamba Brima, otherwise known as Gullit, complied with specific orders from Sam Bockarie in the implementation of the Bockarie/Taylor plan, including Bockarie's repeated orders to make Freetown "fearful" and to use terror against the civilian population of Freetown. The Appeals Chamber finds that there was extensive evidence on the record regarding the communications and coordination between Sam Bockarie and Gullit, and between Taylor and Sam Bockarie, that commenced following SAJ Musa's death, and agrees with the Trial Chamber's conclusion that Gullit was brought into the Bockarie/Taylor plan following the initial contact with Bockarie after SAJ Musa's death. The Appeals Chamber further finds that there was extensive evidence on the record regarding the orders given by Bockarie to Gullit and Gullit's compliance with these orders, and accepts the Trial Chamber's finding that Bockarie exercised control over Gullit to implement the plan he designed with Taylor. The Appeals Chamber therefore affirms the Trial Chamber's conclusion that the actus reus of planning liability was proved beyond reasonable doubt.

    In grounds 14 and 15, the Defence challenges the Trial Chamber's conclusion that Mr Taylor possessed the requisite mens rea for planning the crimes under the 11 counts for which he was convicted. The Appeals Chamber holds that the Trial Chamber was correct in finding that Mr Taylor knew of the RUF/AFRC operational strategy and intention to commit crimes, and that the RUF/AFRC was committing all crimes charged in the indictment. The Appeals Chamber further holds that the Trial Chamber was correct in finding that by his "make fearful" and "use all means" instructions to Sam Bockarie, Taylor demonstrated his intention that the crimes charged in counts 1 to 11, which were part of the RUF/AFRC operational strategy, would be committed during the execution of the Bockarie/Taylor plan. For these reasons, the Appeals Chamber affirms the Trial Chamber's finding that Mr Taylor possessed the requisite mens rea for planning liability.

    The Appeals Chamber accepts Defence ground 11 in part. The Trial Chamber provided no reasons for entering convictions in the Disposition for planning crimes committed under counts 1 to 8 and 11 in Kono District between December 1998 and February 1999, and the Appeals Chamber holds that to that extent, the Disposition for the planning conviction must be modified to exclude Kono District under those counts.

    In ground 41, the Defence submits that the Trial Chamber erred in law in entering cumulative convictions for the offences of rape and sexual slavery. The Appeals Chamber agrees with the Trial Chamber that, for the reasons it stated, the offences of rape and sexual slavery each require proof of an element not required by the other, and accordingly rejects the Defence's submission.

    In its grounds 1 and 2, the Prosecution submits that the Trial Chamber erred in law and in fact in failing to convict Mr Taylor of the additional modes of liability of ordering and instigating certain crimes, for which he has already been found guilty as an aider and abettor. The issue presented solely concerns the descriptive characterisation, not the gravity, of Mr Taylor's criminal liability for the crimes for which he already stands convicted. The Appeals Chamber holds that in determining matters of guilt and punishment, the trier of fact and the Appeals Chamber itself must be guided by the interest of justice and the rights of the accused, and avoid formulaic analysis that has no regard for the whole of the circumstances and the facts of individual cases.

    In the Appeals Chamber's view, ordering and instigating are inadequate characterisations of Taylor's culpable acts and conduct, as those forms of participation in fact fail to fully describe the Trial Chamber's findings. The Appeals Chamber holds that aiding and abetting fully captures Taylor's numerous interventions over a sustained period of five years, the variety of assistance he provided to the RUF/AFRC leadership in the implementation of its operational strategy, and the cumulative impact of his culpable acts and conduct on the "tremendous suffering caused by the commission of the crimes" for which he is guilty. Planning likewise fully captures Mr Taylor's additional culpable acts and conduct for the crimes committed during and after the Freetown invasion. These descriptions of Taylor's culpable acts and conduct fully reflect the Trial Chamber's findings on Mr Taylor's authority and leadership role. The Appeals Chamber concludes that the Prosecution has failed to demonstrate an error occasioning a miscarriage of justice and rejects its submissions.

    For these reasons, the Appeals Chamber grants Defence ground 11 in part, finds that the Disposition for the planning conviction should be modified to exclude Kono District under grounds 1 to 8 and 11, dismisses the remainder of that ground, and dismisses Defence grounds 10, 12 to 15, 17, 19, 22 to 32 and 41, and Prosecution grounds 1 and 2 in their entirety.

    Alleged irregularities in the judicial process.

    Section 9 of the Appeal Judgement addresses grounds of appeal relating to what the Defence terms irregularities in the judicial process.

    In grounds 36, 37 and 38, the Defence alleges that Mr Taylor's right to a fair and public trial was breached, in violation of the Statute and Rules of the Special Court. The Appeals Chamber finds that Mr Taylor was provided a public trial in accordance with Article 17(2) of the Statute. In light of the Judgement itself, and having considered the parties' submissions, the Appeals Chamber concludes that the Trial Chamber properly deliberated in accordance with Rule 87. The Appeals Chamber holds that Trial Chamber II was properly constituted at all times during Mr Taylor's trial. Finally, the Defence contention that Justice Sebutinde's judicial independence was compromised solely because she was appointed to the International Court of Justice is unsupported, disingenuous and ludicrous.

    To the extent that the Alternate Judge considered that he had a right, as an Alternate Judge, to present his personal views in the courtroom or render a dissenting opinion, he was not acting according to Article 12(4) of the Statute and Rule 16 bis of the Rules of this Court, and the Appeals Chamber holds accordingly. While the fact that the Alternate Judge made the statement and the manner of its delivery were irregular and ultra vires, the statement has in no way prejudiced Mr Taylor's rights. The content of the Alternate Judge's statement has been extensively relied on by the Defence. The Appeals Chamber holds that it does not adjudicate between the Trial Chamber and the personal views of the Alternate Judge. The Defence has tested the assertions made in the Alternate Judge's statement by the appellate process, which it has invoked and through which it challenges the Trial Judgement as to the sufficiency of the evidence and reasoning supporting the Trial Chamber's conclusions. It is exclusively and solely the mandate of the Appeals Chamber to determine whether or not the Trial Chamber was in error in concluding that the guilt of Mr Taylor was proved beyond reasonable doubt, taking into account the entire record and all the arguments raised on the appeal by the parties.

    The Appeals Chamber finds no prejudice to Mr Taylor by the omission of the name of the Alternate Judge on the cover page of the Judgement and Sentencing Judgement. It recalls, however, the practice of the Court to include on the cover pages the names of all judges, including alternate judges, who participated in the case. The Appeals Chamber finds no reason to depart from this practice. The Appeals Chamber therefore directs the Registrar to amend the cover page by including the name of the Alternate Judge, the Honourable El Hadji Malick Sow.

    The Defence has failed to show that any of its allegations in grounds 36, 37 and 38 amount to a violation of any provision of the Statute and/or the Rules or that any of the facts alleged caused Mr Taylor's prejudice. Nothing raised amounts to an error occasioning a miscarriage of justice and affecting the fairness of the proceedings. These grounds are therefore dismissed in their entirety.

    In ground 39, the Defence asserts that the Trial Chamber erred in law, fact and/or procedure in the decision on the Defence Rule 54 motion requesting a judicial investigation. The Appeals Chamber rejects the Defence's proposed legal standard as the basis for invoking an investigation under Rule 54, since it would allow speculation and mere conjecture to justify the employment of the Court's full criminal powers. An order for a judicial inquiry requested under Rule 54 is exceptional and cannot be used as a fishing expedition by either party. Accordingly, the Appeals Chamber holds that the Trial Chamber did not err in denying the defence motion. Ground 39 is therefore dismissed in its entirety.

    The sentence.

    Section 10 of the Appeal Judgement addresses grounds of appeal relating to the sentence of 50 years imprisonment imposed by the Trial Chamber. The Defence challenges this sentence in grounds 42 to 45, and the Prosecution challenges it in its ground 4.

    The Prosecution argues that the Trial Chamber erred in law by holding that aiding and abetting liability generally warrants a lesser sentence than other forms of criminal participation, rather than considering the gravity of Mr Taylor's actual criminal conduct. The Appeals Chamber accepts that the Trial Chamber erred in its articulation of the law in this respect. The plain language of Article 6(1) of the Statute clearly does not refer to or establish a hierarchy of any kind among forms of criminal participation in Article 6(1). In addition, a hierarchy of gravity is contrary to the essential requirement of individualisation that derives from the mandate of the Court, principles of individual criminal liability and the rights of the accused. Further, the totality principle requires an individualised assessment of the total gravity of the convicted person's conduct and individual circumstances. A general presumption that aiding and abetting generally warrants a lesser sentence is thus unfounded. In light of the foregoing, the Appeals Chamber holds that the totality principle exhaustively describes the criteria for determining an appropriate sentence that is in accordance with the Statute and Rules, and further holds that under the Statute, Rules and customary international law, there is no hierarchy or distinction for sentencing purposes between forms of criminal participation under Article 6(1). The Appeals Chamber concludes that the Trial Chamber erred in law by holding that aiding and abetting liability generally warrants a lesser sentence than other forms of criminal participation.

    The Defence complains that the Trial Chamber erred in law in giving weight to aggravating factors not argued by the Prosecution in its submission. The Appeals Chamber holds that a Trial Chamber is not limited to considering only factors identified by the parties in their sentencing submissions. The Appeals Chamber therefore sees no error.

    The Defence contends that the Trial Chamber erred in law in considering the extraterritoriality of Taylor's conduct and Taylor's breach of trust as culpable facts. The Appeals Chamber rejects these submissions. As the Trial Chamber found, before the invasion of Sierra Leone in March 1991, Taylor publicly threatened on the radio that "Sierra Leone would taste the bitterness of war" because Sierra Leone was supporting ECOMOG operations in Liberia impacting Taylor's NPFL forces. Taylor's acts and conduct did not only harm the victims of the crimes and their immediate relatives, but fueled a conflict that became a threat to international peace and security in the West African sub-region. The Appeals Chamber accordingly concludes that it was proper for the Trial Chamber to consider the extraterritorial nature and consequences of Taylor's acts and conduct in assessing the gravity of the totality of his culpable conduct.

    The Appeals Chamber also endorses the Trial Chamber's findings that the international community and Sierra Leoneans placed their trust in Taylor to help end the conflict and that Taylor publicly purported to accept that trust and work in the interest of peace, while he, in reality, abused that trust by aiding and abetting the widespread and systematic commission of crimes against the civilian population of Sierra Leone throughout the indictment period and by planning the Freetown invasion. The Appeals Chamber therefore concludes that the Trial Chamber reasonably and properly considered Taylor's abuse of trust in assessing the gravity of the totality of his culpable conduct.

    The Defence further submits that the Trial Chamber erroneously double-counted, to Taylor's detriment, his position as Head of State. The Appeals Chamber opines that it was proper for the Trial Chamber to consider the different aspects of Taylor's acts and conduct in assessing the gravity of the totality of Taylor's culpable conduct, and that the Trial Chamber did not double-count the same factor.

    The Defence contends that the Trial Chamber erred in failing to consider Taylor's expressions of sympathy and compassion as a mitigating factor and erred in holding that the fact that a sentence is to be served in a foreign country should not be considered in mitigation. The Appeals Chamber is of the opinion that the Trial Chamber was correct in holding that serving a sentence in a foreign country is not a factor in mitigation. The Appeals Chamber holds that in order for remorse to be considered a mitigating factor, it must be real and sincere. In the instant case, the Trial Chamber acknowledged that Mr Taylor accepted that crimes were committed in Sierra Leone but that he did not demonstrate real and sincere remorse meriting recognition for sentencing purposes. The Appeals Chamber agrees.

    The Defence contends that the Trial Chamber erroneously failed to follow Special Court sentencing practices with respect to aiding and abetting liability as established in previous cases. The Trial Chamber properly referred to the gravity of the crimes for which Mr Taylor was convicted and considered his role in their commission. Further, the Trial Chamber compared the circumstances of Mr Taylor's case with other cases that have been determined by the Court. In light of the foregoing, the Appeals Chamber concludes that the Defence fails to demonstrate any discernible error in the exercise of the Trial Chamber's discretion in sentencing.

    Finally, the Defence complains that the Trial Chamber imposed a "manifestly unreasonable" sentence in the circumstances of this case, while the Prosecution complains that the sentence imposed by the Trial Chamber fails to adequately reflect the totality of Taylor's "criminal and overall culpability." The Appeals Chamber opines that the sentence imposed by the Trial Chamber is fair and reasonable in light of the totality of the circumstances.

    For these reasons, Defence grounds 42 to 45 and Prosecution ground 4 are dismissed in their entirety.

    This concludes the summary of the Judgement.

    Mr Taylor, will you please rise.

    For the foregoing reasons, the Appeals Chamber, pursuant to Article 20 of the Statute and Rule 106 of the Rules of Procedure and Evidence, noting the written submissions of the parties and the oral arguments presented at the hearings on 22 and 23 January 2013, sitting in open session, unanimously, with respect to the Defence grounds of appeal, notes that ground 35 has been withdrawn, allows ground 11, in part, revises the Trial Chamber's Disposition for planning liability under Article 6(1) of the Statute by deleting Kono District under counts 1 to 8 and 11, and dismisses the remainder of the ground, dismisses the remaining grounds of appeal; with respect to the Prosecution's grounds of appeal, allows ground 4 in part, holds that the Trial Chamber erred in law in finding that aiding and abetting liability generally warrants a lesser sentence than other forms of criminal participation, and dismisses the remainder of the ground, dismisses the remaining grounds of appeal; affirms the sentence of 50 years imprisonment imposed by the Trial Chamber; orders that this Judgement shall be enforced immediately pursuant to Rule 119 of the Rules of Procedure and Evidence; orders, in accordance with Rule 109 of the Rules of Procedure and Evidence, that Charles Ghankay Taylor remains in the custody of the Special Court for Sierra Leone pending the finalisation of arrangements to serve his sentence.

    Mr Taylor, you may be seated.

  • I agree.

  • I will now ask Justice Fisher to read out her concurring opinion.

  • Thank you, Mr President. I am authorised to represent Justice Renate Winter, who joins me in this concurrence.

    I fully agree with the Appeals Chamber's reasoning and conclusion as to the law of aiding and abetting liability. However, I consider it necessary to further address two of the Defence's arguments in support of its position that the elements of aiding and abetting liability under customary international law, as interpreted and applied in this case, are impermissibly broad.

    The Defence argues that the application of the law of aiding and abetting as interpreted by the Trial Chamber is overbroad in the context of crimes committed in armed conflicts, and poses the question, "How do we define the limits where there is nothing whatsoever intrinsic in the nature of the assistance which tells us what is aiding and abetting," and the Defence further warns that "the actus reus [of aiding and abetting liability] can actually be quite easily fulfilled quite unconsciously by the alleged aider and abettor." The Appeals Chamber seriously considered this question and responds in its holding that the law of individual criminal responsibility does not criminalise just any act of assistance to a party to an armed conflict, nor does it criminalise all acts or conduct that may result in assistance to the commission of a crime. Stated simply, the law does not impose strict liability.

    The law on aiding and abetting criminalises knowing participation in the commission of a crime where an accused's willing act or conduct had a substantial effect on the crime. I would add, by way of further explanation, that the customary elements for aiding and abetting liability contain express limitations to protect the innocent, regardless of the context in which the crimes are committed. First, the accused's acts or conduct must have a substantial effect on the crime. Second, the accused must commit the acts with the knowledge that the acts will assist in the commission of the crime or with awareness of the substantial likelihood that they will. And third, the accused must be aware of the essential elements of the crime which he or she or their acts and conduct assist. Every case is fact-specific, and in all cases the accused may challenge the factual predicates of the essential elements, raise affirmative defences recognised by law, and argue mitigating circumstances.

    It is true, of course, that an accused may provide assistance to both lawful and unlawful activities. However, no system of criminal law excuses unlawful conduct because the accused also engages in lawful conduct. The law presumes that all of an accused's conduct is lawful. The Prosecution must prove beyond reasonable doubt that some of the accused's conduct is unlawful.

    It is likewise true that liability for aiding and abetting is not restricted to those who want the crimes to be committed. Criminal law legitimately punishes those who know what they are doing and proceed to act regardless of whether they desire or are merely indifferent to the pain and suffering to which they contribute.

    The law is faithful to the principle that one is only held accountable for his or her own acts. As with all forms of criminal participation, it is up to the Trial Chamber to test the facts it finds against the essential elements, mindful of the limitations, the burden of proof and the presumption of innocence. This is the routine task of judges, and there is nothing different in the way that judges interpret and apply the elements of aiding and abetting from the way they interpret and apply the elements of any other mode of liability or substantive crime. The Appeals Chamber unanimously determined that the Trial Chamber committed no error in performing this task in the present case.

    I comment on the Defence's additional argument in support of its overbreadth contention, because I consider it very troublesome. The Defence argues that the essential elements of aiding and abetting as applied and relied on by the Trial Chamber are insufficient and require additional or different elements or analysis because the concept of aiding and abetting is "so broad that it would in fact encompass actions that are today carried out by a great many States in relation to their assistance to rebel groups or to governments that are well-known to be engaging in crimes of varying degrees and frequency." Such assistance, the Defence has argued, "is going on in many countries that are supported in some cases by the very sponsors of this Court." By this argument, the Defence purposely confuses customary law-making with international law-breaking.

    Furthermore, suggesting that the Judges of this Court would be open to the argument that we should change the law or fashion our decisions in the interests of officials of States that provide support for this or any other international court is an affront to the international criminal law and the judges who serve it. The Defence has interjected a political and highly inappropriate conceit into these proceedings, which has no place in the courts of law and which has found no place in the judgement of this Court. The Judges of this Court, like our colleagues in our sister Tribunals, are sworn to act independently, "without fear or favour, affection or ill-will," and to serve "honestly, faithfully, impartially and conscientiously." To suggest otherwise casts a cloud on the integrity of international judges in international criminal courts generally, and the rule of law which we are sworn to uphold, and encourages unfounded speculation and loss of confidence in the decision-making process as well as in the decisions themselves. I wish to make clear that this line of argument is absolutely repudiated.

    Judges do not decide hypothetical cases. They look to the individual case before them and apply the law as they are convinced it exists to the facts that have been reasonably found. Reasonable minds may differ on the law. We are convinced that the customary law on the elements of aiding and abetting are as stated by the Trial Chamber and that application of the law to the facts in this particular case was properly and fairly calculated. As with all areas of the law, international criminal law is founded on fact and experience. As was noted by an eminent jurist more than a hundred years ago, law cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics. Judicial decisions require the exercise of human judgement. Like the presumption of innocence, the presumption that judges are acting independently in the exercise of their best judgement in the case before them is fundamental to the rule of law. Judges privileged to sit on international criminal courts understand that the duty underlying both of these presumptions is inviolable.

    If the presumption of innocence outweighs the evidence of personal culpability, courts of law will acquit the accused. The rule of law requires respect for such decisions even by those who disagree with them. In this case, the affirmed findings overwhelmingly establish that Mr Taylor, over a five-year period, individually and knowingly and secretly and substantially assisted the perpetration of horrific crimes against countless civilians in return for diamonds and power, while publicly pretending that he was working for peace. It is the unanimous, independent judgement of the three Trial Judges that composed the Trial Chamber, and the five Appellate Justices that composed the Appeals Chamber, that the presumption of innocence has been overcome beyond a reasonable doubt both as to the substantive crimes charged in the indictment and Mr Taylor's participation in those crimes.

  • This concludes the delivery of the judgement. The written judgement will be made publicly available from the Registrar. I thank you.

  • All rise.

  • (The hearing concluded at 12.30 p.m.)