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

  • [Open session]

  • [The accused present]

  • [Upon commencing at 9.30 a.m.]

  • Good morning. We will take appearances first, please.

  • Good morning Mr President, your Honours and counsel opposite. For the Prosecution this morning are Mohamed A Bangura, Maja Dimitrova, Kathryn Howarth, Ula Nathai-Lutchman and myself, Nicholas Koumjian.

  • Good morning, Mr President, your Honours, counsel opposite. For the Defence today are myself, Courtenay Griffiths, and Ms Salla Moilanen, our case manager.

  • Thank you. Well, our first business today is to deliver our decision on the Defence Rule 98 motion. The Trial Chamber is seized of a Defence motion for judgment of acquittal pursuant to Rule 98 of the Rules of Procedure and Evidence. Pursuant to this rule the Trial Chamber is bound to deliver our decision, including our reasons, orally. I will therefore read the Trial Chamber's decision in full.

    A brief procedural history is as follows. The Prosecution rested its case on 27 February 2009. On the same day the Defence notified the Trial Chamber that it intended to move for a judgment of acquittal under Rule 98. The Trial Chamber heard oral submissions on the motion from the Defence on 6 April 2009 and the Prosecution presented its response on 9 April 2009 after which the Trial Chamber adjourned to consider the matter. The Trial Chamber informed the parties that it would deliver its decision on 4 May 2009, which is today. In reaching its decision, the Trial Chamber has considered all the submissions of the parties and all of the evidence before it.

    The Trial Chamber will first give a brief summary of the submissions of the parties. The Defence moves the Trial Chamber to acquit the accused on each and every count in the second amended indictment. It raises issues with regard to the standard of review applicable to Rule 98 and the law that applies to the offences alleged in the indictment.

    While not contesting the crime base evidence the Defence challenges the quality of evidence, or lack thereof, with regard to each element of the modes of liability linking the accused to the alleged offences.

    The Defence submits that the evidence presented by the Prosecution linking the accused to the crimes alleged in the indictment is not capable of sustaining a conviction, even if believed. The Defence also notes inconsistencies and contradictions in the evidence presented by the Prosecution.

    In its response, the Prosecution opposes the motion on all grounds presented by the Defence and requests the Trial Chamber to dismiss it. It submits that it has led evidence capable of supporting a conviction on each and every count of the indictment.

    The parties provided further submissions on particular issues which the Trial Chamber will address in detail in the body of the decision that follows.

    We deal now with the standard of review in relation to Rule 98. Rule 98 sets out the applicable legal standard when reviewing a motion for judgment of acquittal. It provides that:

    "If, after the close of the case for the prosecution, there is no evidence capable of supporting a conviction on one or more counts of the indictment, the Trial Chamber shall, by oral decision and after hearing the oral submissions of the parties, enter a judgment of acquittal on those counts."

    This Trial Chamber has previously held in the case of Prosecutor v Brima and others, otherwise known as the AFRC case, that the test to be applied when considering a motion under Rule 98 is whether there is evidence, if accepted, upon which a reasonable tribunal of fact could be satisfied beyond reasonable doubt of the guilt of the accused on the particular charge in question. The Trial Chamber must assume that the Prosecution's evidence is entitled to credence, unless incapable of belief.

    Accordingly the object of the enquiry is not to make determinations of fact having weighed the credibility and reliability of the evidence, rather it is simply to determine whether the evidence, assuming that it is true, could not possibly sustain a finding of guilt beyond reasonable doubt. That will only be the case where there is no evidence whatsoever which is probative of one or more of the required elements of a crime charged, or where the only such evidence is incapable of belief.

    To be incapable of belief, the evidence must be obviously incredible or unreliable. The Trial Chamber should not be drawn into fine assessments of credibility, or reliability. Needless to say a finding that the evidence is not obviously incredible does not foreclose the Trial Chamber at the end of the trial from finding that the evidence is, in fact, neither credible nor reliable.

    In applying the above mentioned test, it is not necessary under the rule for the Trial Chamber to enquire into the sufficiency of the evidence in relation to each paragraph of the indictment. There is no need at the Rule 98 stage to examine whether each paragraph of the indictment is supported by the Prosecution evidence. Rather, the evidence should be examined in relation to the counts. Rule 98 requires the Trial Chamber to determine only whether there is no evidence capable of supporting a conviction on one or more counts of the indictment and to enter a judgment of acquittal on those counts.

    The essential function of the rule was stated by the ICTY in the cases of Strugar and Hadzihasanovic. The Trial Chambers in those cases observed as follows:

    "It is worth noting the extent and frequency to which Rule 98 bis has come to be relied on in proceedings before this tribunal and the prevailing tendency for Rule 98 bis motions to involve much delay, lengthy submissions and therefore an extensive analysis of evidentiary issues in decisions. This appears to be in contrast to the position typically found in common law jurisdictions from which the procedure is derived. While Rule 98 bis is an important procedural safeguard, the object and proper operation of the rule should not be lost sight of. It's essential function is to separate out and bring to an end only those proceedings in respect of a charge for which there is no evidence on which a Trial Chamber could convict, rather than to terminate prematurely cases where the evidence is merely weak."

    The indictment charges in paragraph 33 that:

    "The accused, by his acts or omissions, is individually criminally responsible pursuant to Article 6.1 of the Statute for the crimes referred to in Articles 2, 3 and 4 of the Statute which crimes the accused planned, instigated, ordered, committed, or in whose planning, preparation or execution the accused otherwise aided and abetted, or which crimes amounted to or were involved within a common plan, design or purpose in which the accused participated, or were a reasonably foreseeable consequence of such common plan, design or purpose."

    In addition, or alternatively, under paragraph 34 of the indictment the accused is charged with individual criminal responsibility under Article 6.3 of the Statute.

    In deliberating upon this motion, the Trial Chamber has examined the Prosecution evidence in its entirety. Where specific evidence is cited in this oral decision, this is done for illustrative purposes and should not necessarily be taken as an exhaustive listing.

    We come now to the law on the modes of liability charged in the indictment. Rule 98 does not require that the Trial Chamber be satisfied that there is evidence supporting each of the individual allegations making up the counts of the indictment. Thus, where as in the present case the accused is charged under multiple modes of liability, it is sufficient if there is evidence capable of supporting a conviction on the basis of one of those modes of liability.

    The parties made submissions on the law in relation to the modes of liability charged in the indictment. The Trial Chamber finds these submissions to be generally consistent with established jurisprudence of the Special Court for Sierra Leone and the ad hoc international tribunals which this Chamber considered in the AFRC case. For the purpose of this decision, we will here state our opinion in this regard.

    We deal firstly with the mode of commission through participation in a joint criminal enterprise. An accused may be found to have committed a crime through participation in a joint criminal enterprise. The actus reus of joint criminal enterprise liability comprises three elements: (1) a plurality of persons; (2) the existence of a common plan, design or purpose which amounts to or involves the commission of a crime provided for in the Statute; and (3) participation of the accused in the common plan, design or purpose involving the perpetration of one of the crimes provided for in the Statute.

    The mens rea requirements for liability under the basic and extended forms of joint criminal enterprise which are pleaded in the indictment against the accused in this case are not the same.

    In the basic category of joint criminal enterprise the accused must intend to perpetrate a certain crime, this being the shared intent on the part of all co-perpetrators.

    The mens rea for the extended category of joint criminal enterprise is twofold. In the first place the accused must have had the intention to take part in and contribute to the common purpose. In the second place, responsibility under the third category of joint criminal enterprise for a crime that was committed beyond the common purpose of the joint criminal enterprise, but which was a natural and foreseeable consequence thereof, arises only if the Prosecution proves that the accused had sufficient knowledge that the additional crime was a natural and foreseeable consequence to him in particular.

    The accused must also know that the crime which was not part of the common purpose, but which was nevertheless a natural and foreseeable consequence of it, might be perpetrated by a member of the group or by a person used by the accused or another member of the group.

    The accused must willingly take the risk that the crime might occur by joining or continuing to participate in the enterprise. The Trial Chamber can only find that the accused has the requisite intent if this is the only reasonable inference on the evidence.

    Planning. Planning implies that one or several persons contemplate designing the commission of a crime at both the preparatory and execution phases. Responsibility is incurred when the level of the accused's participation is substantial, even when the crime is actually committed by another person. The actus reus requires that the accused, alone or together with others, designed the criminal conduct constituting the crimes charged. It is sufficient to demonstrate that the planning was a factor substantially contributing to such criminal conduct.

    The mens rea requires that the accused acted with direct intent in relation to his own planning, or with the awareness of the substantial likelihood that a crime would be committed in the execution of that plan. Planning with such awareness has to be regarded as accepting that crime.

    Instigating. Instigating means prompting another to commit an offence. The actus reus requires that the accused prompted another person to commit the offence and that the instigation was a factor substantially contributing to the conduct of the other person or persons committing the crime.

    The mens rea requires that the accused acted with direct intent, or with the awareness of the substantial likelihood that a crime would be committed in the execution of that instigation.

    Ordering. The actus reus of ordering requires that a person in the position of authority uses that authority to instruct another to commit an offence. No formal superior/subordinate relationship between the accused and the perpetrator is necessary. It is sufficient that the accused possessed the authority to order the commission of an offence and that such authority can reasonably be inferred.

    The mens rea for ordering requires that the accused acted with direct intent in relation to his own ordering, or with the awareness of the substantial likelihood that a crime will be committed in the execution of that order.

    Aiding and abetting. The actus reus of aiding and abetting requires that the accused gave practical assistance, encouragement or moral support which had a substantial effect on the perpetration of a crime. Aiding and abetting may be constituted by contribution to the planning, preparation or execution of a finally completed crime. Such contribution may be provided directly, or through an intermediary, and irrespective of whether the participant was present or removed both in time and place from the actual commission of the crime.

    The mens rea required for aiding and abetting is that the accused knew that his act would assist the commission of the crime by the perpetrator, or that he was aware of the substantial likelihood that his acts would assist the commission of a crime by the perpetrator. However it is not necessary that the aider and abetter had knowledge of the precise crime that was intended and which was actually committed, as long as he was aware that one of a number of crimes would probably be committed including the one actually committed.

    Individual criminal responsibility pursuant to Article 6.3 of the Statute. Article 6.3 provides:

    "The fact that any of the acts referred to in articles 2 to 4 of the present Statute was committed by a subordinate does not relieve his or her superior of criminal responsibility if he or she knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior had failed to take the necessary and reasonable measures to present such acts or to punish the perpetrators thereof."

    Article 6.3 thus requires a three-pronged test for criminal liability to attach: (1) the existence of a superior/subordinate relationship between the accused as superior and the perpetrator of the crime; (2) the accused knew or had reason to know that the crime was about to be or had been committed; and (3) the accused failed to take necessary and reasonable measures to prevent the crime or punish the perpetrators thereof.

    The scope of Article 6.3 not only includes military commanders, but also political leaders and other civilian superiors in possession of authority.

    The Trial Chamber will now turn to specific preliminary issues raised by the Defence.

    The Defence submits that any evidence adduced of crimes committed in a location with a name that did not precisely match a location pleaded in the indictment should not be considered by the Trial Chamber. The Defence therefore requests that such locations should be struck out.

    The Prosecution in response argues that the Defence submission must fail as Rule 98 requires the Trial Chamber to make findings on the counts in the indictment and not on specific particulars.

    The Trial Chamber recalls its finding at paragraph 25 of the AFRC Rule 98 decision that it would not be appropriate or desirable to strike out the names of such locations given that a variety of languages and dialects are spoken in Sierra Leone and that some witnesses are illiterate. Thus names of locations mentioned by witnesses which are similar but not identical to names of locations that appear in the indictment may refer to the same location. Furthermore, the Defence had ample opportunity to raise any doubts regarding such matters through cross-examination.

    For the foregoing reasons, the Trial Chamber considers that it is not an appropriate or desirable remedy to strike out the names of these locations. The Trial Chamber will, at the appropriate time, review all the evidence to determine whether a witness and the indictment are referring to the same location despite minor spelling discrepancies.

    The Defence also submits that the Prosecution did not adduce evidence of any acts of burning in Goderich, Kent or Grafton in the Western Area and requests the Trial Chamber to strike out those locations. The Prosecution contests the absence of evidence of acts of burning in the locations submitted by the Defence and provides references to evidence in support of its assertion.

    However, the Trial Chamber in keeping with our ruling in paragraph 21 of the AFRC Rule 98 decision, holds that we are not empowered by Rule 98 to break down a count to its particulars supplied in the indictment and then to enter a judgment of acquittal in respect of any particular which has not been proved, nor would it be practicable to do so. The Trial Chamber therefore rejects this Defence submission.

    The Trial Chamber will now consider the chapeau requirements. The Trial Chamber notes that the accused is charged with three types of crime provided for in the Statute of the Special Court: crimes against humanity under Article 2 of the Statute; serious violations of Article 3 common to the Geneva Conventions and of additional Protocol II pursuant to Article 3 of the Statute; and other serious violations of international humanitarian law under Article 4 of the Statute. For the purposes of this decision, we will refer to the latter two categories of crimes as war crimes.

    In order to secure a conviction, the Prosecution must prove the underlying offences, the general requirements of crimes against humanity or war crimes - sometimes referred to as the chapeau requirements - and the accused's individual responsibility.

    The offences charged in this indictment are acts of terrorism at Count 1; murder at Counts 2 and 3; rape at Count 4; sexual slavery at Count 5; outrages against personal dignity at Count 6; cruel treatment at Count 7; physical violence as an other inhumane act at Count 8; conscripting or enlisting children under the age of 15 into armed forces or groups, or using them to participate actively in hostilities, at Count 9; enslavement at Count 10; and pillage at Count 11.

    The Trial Chamber notes that the Defence has not, at least for the purpose of this motion, challenged the sufficiency of the evidence in relation to the chapeau requirements for crimes against humanity and war crimes. Nevertheless, for the purposes of this Rule 98 decision the Trial Chamber recalls the evidence of numerous Prosecution witnesses who have testified as to attacks directed against civilians which fall within the scope of the indictment. Furthermore, the Trial Chamber recalls that it has taken judicial notice of an armed conflict on the territory of Sierra Leone also falling within the scope of the indictment.

    The Trial Chamber is satisfied, based upon a review of all the evidence available, that there is evidence capable of supporting a finding that the chapeau requirements of crimes against humanity and war crimes have been met.

    The Defence did not take issue with the crime base evidence led by the Prosecution and restricted its arguments to the quality and sufficiency of the linkage evidence, or lack thereof, and in particular to the lack of evidence going to the modes of liability. Accordingly, the Trial Chamber will restrict its review of the evidence to those areas.

    The Trial Chamber will now turn to a consideration of the individual criminal responsibility of the accused in relation to Counts 1 through 11 of the indictment.

    The Defence argued that there was no evidence linking the accused to the crimes committed under any of the modes of liability pleaded by the Prosecution.

    The parties took different approaches to the evaluation of the sufficiency of the evidence with regard to the modes of liability. The Defence made submissions on the modes of liability of planning, committing, instigating, ordering and aiding and abetting before turning to joint criminal enterprise which it submitted is "the backbone of this case. This is what the case amounts to."

    The Defence completed its oral submissions by an evaluation of the evidence adduced so far in relation to superior criminal responsibility and concluded that there was no evidence capable of supporting a conviction on any count and asked the Trial Chamber to deliver a judgment of acquittal on all counts.

    The Prosecution submitted that, should the Trial Chamber determine that there is evidence which could support a conviction on a count on the basis of any one of the alleged forms of liability, there is no need for the Trial Chamber to also examine the other forms of liability in respect of that count.

    It presented jurisprudence from several cases at the ICTY in support of this approach, namely the decisions on Rule 98 bis in the cases of Prosecutor v Martic, Prosecutor v Mrksic, Prosecutor v Milutinovic and Prosecutor v Prlic.

    Following this approach, the Prosecution set out the evidence it alleged is capable of supporting a conviction on all counts of the indictment based on the accused's participation in a common plan design or purpose, the mode of liability also referred to as joint criminal enterprise.

    Although it maintained that there was no need to do so, the Prosecution then went on to also set out evidence which it suggested is capable of supporting a conviction under other modes of liability, namely aiding and abetting, planning, instigating, ordering and superior responsibility.

    The Trial Chamber agrees with the Prosecution that it is not necessary for the purposes of Rule 98 to evaluate the sufficiency of the evidence in relation to each mode of liability and that it is sufficient if there is evidence capable of supporting a conviction on the basis of one of those modes.

    Dealing firstly with commission through joint criminal enterprise, both parties have highlighted the centrality of joint criminal enterprise responsibility to this case and, as mentioned, the Prosecution argues that there is evidence capable of supporting a conviction against the accused on each and every count of the indictment based on his participation in a joint criminal enterprise. Therefore, the Trial Chamber will consider the sufficiency of the evidence in relation to this mode of liability.

    In summary the Defence submitted that the Prosecution led no evidence to support the participation of the accused in either the basic or the extended form of joint criminal enterprise and, in particular, that there is no evidence of a common plan, purpose or design between the accused and other co-perpetrators, nor is there evidence of a shared intent to have existed between the co-perpetrators throughout the indictment period. The Prosecution disagrees.

    The Trial Chamber recalls its decision on the urgent Defence motion regarding a fatal defect in the Prosecution second amended indictment relating to the pleading of JCE of 27 February 2009, in which we held that the second amended indictment satisfied the requirements for the pleading of joint criminal enterprise in that it charged the accused with participating along with others, namely members of the RUF, AFRC, RUF/AFRC junta or alliance and/or Liberian fighters, in a campaign to terrorise the civilian population of Sierra Leone between 30 November 1996 and 18 January 2002 and that the crimes charged in the indictment were part of a campaign of terror, or were a reasonably foreseeable consequence thereof. The nature of the accused's participation in the criminal enterprise was also narrated in paragraph 74 of that decision.

    We come now to the Trial Chamber's findings on commission through a joint criminal enterprise. As set out in the applicable law above, the elements of this mode of liability are the existence of a common purpose, a plurality of persons, the participation of the accused and the requisite mens rea.

    As to existence of a common purpose to terrorise, the Trial Chamber finds that there is evidence capable of supporting a finding of the existence of this common purpose. The Trial Chamber refers to inter alia the evidence of witness TF1-532 that the accused and Sam Bockarie, in planning to recapture territory across Sierra Leone, agreed to make operations fearful, and on the evidence of witness TF1-371 who testified that the accused was involved in planning Operation No Living Thing. During these operations, crimes set out in the indictment were systematically committed against the civilian population.

    The Prosecution has adduced evidence that the common purpose to terrorise the civilian population existed from the pre-indictment period. Witness TF1-045, testified that in 1994 the accused was involved in a plan to terrorise civilians at Sierra Rutile so that the RUF could take control of the area. Witness TF1-532 testified that in 1996 the accused approved a plan by Foday Sankoh to terrorise civilians in order to discourage them from participating in the elections.

    In addition, there is evidence that individuals associated with the accused shared the common purpose to terrorise the civilian population. Inter alia, Witness TF1-334 testified that child soldiers were sent to amputate civilians in order to terrorise them. Witness TF1-360 testified that Sam Bockarie ordered his fighters to make Kono fearsome, meaning to burn down houses and kill civilians. TF1-367 testified that at Guinea Highway Issa Sesay ordered that Operation Free Sankoh should be a fearful operation.

    The Trial Chamber is further satisfied that during the campaign to terrorise the civilian population civilians were killed, raped, forced into sexual slavery, subjected to physical violence, including amputations and mutilation, and were abducted and forced into labour. The Trial Chamber is similarly satisfied that children participated actively in hostilities and that civilian property was pillaged.

    Taken together, the Trial Chamber finds that there is evidence on which it could find that the accused and others shared a common purpose to take part in a campaign to terrorise the civilian population of the Republic of Sierra Leone.

    We come now to the element of plurality of persons. The Prosecution has adduced evidence that a number of individuals who were associated with the accused were involved in the perpetration of the crimes indicted. Among them were members of the RUF, AFRC, AFRC/RUF junta or alliance and/or Liberian fighters, individuals such as Sam Bockarie, Issa Sesay, Foday Sankoh, Johnny Paul Koroma, Eddie Kanneh, Benjamin Yeaten, Daniel Tamba and others.

    This evidence is based on the testimony of inter alia witnesses TF1-567, TF1-532, TF1-371, TF1-360, TF1-276, TF1-045, TF1-406, TF1-334 and TF1-516. Thus, the Trial Chamber is satisfied that there is sufficient evidence that a plurality of persons was involved in the joint criminal enterprise.

    In relation to the alleged participation of the accused, the Trial Chamber finds that there is evidence that the accused participated in the joint criminal enterprise. In particular the Prosecution has adduced evidence that the accused provided arms, ammunition, financial assistance, manpower and other supplies to other participants in the joint criminal enterprise in furtherance of the common purpose, that he provided safe havens to other members, that he provided moral encouragement and military advice, that he facilitated the export of diamonds in return for arms, that he facilitated communication between the various members of the joint criminal enterprise and that he had persons who he believed endangered the common purpose killed.

    This evidence is based on inter alia the testimony of witnesses TF1-371, TF1-532, TF1-375, TF1-406, TF1-045, TF1-275, TF1-360, TF1-276, TF1-577, TF1-388, TF1-516, TF1-334, TF1-084 and TF1-114.

    In relation to the mens rea requirement, the Prosecution has charged the accused with responsibility for the crimes alleged under the first and third categories of joint criminal enterprise.

    In its oral submission, the Defence argued that the Prosecution has adduced no evidence that the accused shared the intent to terrorise the civilian population of Sierra Leone with any co-perpetrators.

    The Trial Chamber finds that the Prosecution has adduced evidence capable of proofing that the accused intended to participate in the alleged joint criminal enterprise.

    The evidence shows that the accused may have had the specific intent to terrorise the civilian population of Sierra Leone in the pre-indictment period. From the early 1990s, the accused and Foday Sankoh agreed to assist each other in the capture of territory both in Liberia and Sierra Leone. Inter alia, Witness TF1-045 testified that in 1994 the accused advised Foday Sankoh to terrorise the civilian population around Sierra Rutile in order to take control of the area. Witness TF1-532 testified that the accused agreed to a plan proposed by Foday Sankoh to disrupt the 1996 elections in Sierra Leone by terrorising the civilian population.

    In addition the Trial Chamber finds that there is evidence that the accused maintained this intent during the indictment period, namely the evidence of inter alia Witness TF1-532 who testified that the accused and Sam Bockarie, in planning to recapture territory across Sierra Leone, agreed to make the operations fearful. Witness TF1-371 testified that the accused was involved in planning Operation No Living Thing.

    The Trial Chamber finds that there is evidence that individuals alleged to have collaborated with the accused committed the crimes mentioned above with the primary purpose of terrorising the civilian population of the Republic of Sierra Leone, namely the evidence of witnesses TF1-045, TF1-276, TF1-352, TF1-334, TF1-360, TF1-375, TF1-367 and Stephen Ellis.

    Finally, there is evidence that the accused was aware of the intent of those individual to terrorise the civilian population, namely the evidence of Witness TF1-567 and exhibits D-34, P-70, P-130, P-298, P-299, P-305, P-306, P-307, P-308, P-310, P-317 and P-38.

    The Trial Chamber also notes the numerous BBC Focus on Africa reports, which are Prosecution exhibits P-263, P-348A and B, P-349A and B, P-350A and B, P-354A and B, P-356A and B, 357A and B and 358A and B, which exhibits were admitted into evidence regarding the crimes committed in Freetown in January 1999, together with the evidence of Witness TF1-561 and TF1-406 who testified that the accused listened regularly to the BBC.

    The Trial Chamber is therefore satisfied that the Prosecution has adduced evidence capable of supporting a conviction against the accused on Counts 1 through 11 of the indictment based on his participation in a joint criminal enterprise.

    Having so found, the Trial Chamber is not required by Rule 98 to consider whether there is evidence capable of supporting a conviction against the accused on any count based on any other form of criminal responsibility.

    The Trial Chamber emphasises that a ruling that there is evidence capable of supporting a conviction on a particular count does not necessarily mean that the Trial Chamber will, at the end of the case, return a conviction on that count. This is so because the standard for determining sufficiency under Rule 98 is not evidence on which a Trial Chamber should convict, but evidence on which it could convict.

    Having said that, for the reasons stated the Trial Chamber dismisses the Defence motion in its entirety.

    Well, as the Trial Chamber indicated on 9 April, we intend to fix a date for the commencement of the Defence case today. Do you have anything you would like to say on that issue, Mr Griffiths?

  • Mr President, your Honours, I caused to be circulated a few weeks ago a memo suggesting a start date in mid-July and setting out the reasons in support of that request. Can I enquire whether your Honours had an opportunity of seeing that?

  • Yes, I think we all got that. Thank you, Mr Griffiths.

  • And I note that I think within the last couple of days there has been a response from Ms Hollis, on behalf of the Prosecution.

  • Now can I make it plain at the outset, your Honours, that the date suggested by me in that memo is in fact the bare minimum, the bare minimum time frame we submit to guarantee the fair trial rights of Mr Taylor, and we would welcome more time if the Trial Chamber felt able to grant that request because, frankly, our resources are currently stretched to its very limits.

    I returned from Freetown yesterday morning, my planned flight on Friday night having been cancelled at gone midnight on Friday, and I have to return first thing tomorrow morning. I pause to mention the fact that, whilst on the ground in West Africa, it is consequently impossible for me to spend any time with the accused firstly preparing him for the giving of evidence - and I've already indicated that he will be giving evidence - and also going through the very numerous exhibits that we anticipate will be introduced in evidence through him.

    Now other members of my team, Mr Munyard, Mr Anyah, Mr Chekera and two legal assistants, are currently in West Africa and we anticipate that they, along with myself, will remain in West Africa until the end of May.

    However, as we have discovered, progress is a lot slower there than we anticipated and, frankly, the progress we are making at present suggests that the date indicated by myself in that memo might well be overly optimistic.

    Furthermore, in light of the Appeal Chamber's decision on JCE and indeed your Honours' decision on our Rule 98 motion, we anticipate now having to call additional evidence to deal with aspects of the alleged plan; witnesses who, frankly, we had not either anticipated or intended to call.

    Consequently, having now been on the ground and armed with that experience, our submission is that a start date even in the middle of July will necessarily cause difficulties.

    Now, whilst making that submission, of course we are aware as I set out in that memo of the continuing financial constraints under which this Court operates and of course we appreciate that there has to be a limit to the discretion which this Trial Chamber will allow.

    Nonetheless, it seems to us that to order a start date prematurely will in due course prove to be a false economy - and I say that quite bluntly - because it will result undoubtedly in future requests for more time because of our inability to in effect sort out these difficulties at the front end. It seems to me that time allowed at this stage will guarantee savings down the line and so consequently, whereas the request was for mid-July, I am now suggesting that more time should be granted in order to permit us to prepare properly for the start of the Defence case.

    I don't know if I can assist with any particular matters, Mr President?

  • Yes, one matter that is not entirely relevant to the start date, Mr Griffiths. It seems from what you are saying that most of your team is now in West Africa.

  • Whereas its customary and indeed practical once the Trial Chamber delivers its decision on a Rule 98 motion to fix a status conference fairly promptly and we were considering later this week to fix a status conference. Who in your team is going to be here to attend if you are going back to Africa yourself tomorrow?

  • Bluntly, no-one.

  • Well the thing is you might have to rethink that, Mr Griffiths.

  • Mr Griffiths, you say, or you have just addressed the Chamber to say, that in spite of your having stated that you were prepared to start in mid-July you would appreciate additional time, but you haven't told us what other date you have in mind apart from mid-July.

  • Well, can I put it in this way. Under normal circumstances we apprehend that there would have been a summer break, under normal circumstances, and it seems to us the more appropriate start date, bearing in mind the difficulties we have now identified, would be some time in mid-August.

  • Well before you finalise that answer, Mr Griffiths, we would point out that we are not taking a summer break at the same time as the ICC. We will be delaying that summer break until some time around October, or maybe even later. We haven't fixed that date yet.

  • I'm grateful for that indication, Mr President, but nonetheless I would still maintain that in our submission a more appropriate start date now, in light of what we've discovered, would be some time in mid-August.

  • Mr Griffiths, you indicated that your team would find difficulties being here for the proposed status conference next week, or even this week. What alternatives do you suggest before we - well, at least to give the opportunity to the other side to comment for a status conference?

  • Well can I first make this enquiry, your Honour. Is it proposed at that status conference to deal with matters such as - is that proposed to be a pre-Defence status conference?

  • No, that will be a status conference leading up to the pre-Defence conference. At that conference - at the initial status conference, as we will state later, we will be looking at the general situation as regards matters already disclosed and so forth and the number of witnesses. We will come to that later, but to answer your question, no, it's not the pre-Defence conference.

  • And can I enquire whether your Honours had a particular date for that hearing? This Friday?

  • You are referring now to the status conference, rather than the pre-Defence conference?

  • Your Honour, yes.

  • [Trial Chamber conferred]

  • Mr Griffiths, we were thinking around Thursday for the status conference. We will hear the Prosecution before we settle on a date, but we are thinking of some time before Friday because that seems to be when the plane to Africa leaves again.

  • It may be possible to accommodate such a hearing on this Thursday, your Honour. It may be that I can make arrangements so that somebody is present for that, but I do make this general observation. At one level the need, it would seem to us, for a status conference is dependent very much on the start date for the Defence case to which your Honours in due course agree, because it may well be that we could delay having such a status conference until a later stage dependent very much on the date that you finally arrive at. I don't know if that assists.

  • Yes, all right. Well, we will hear from the Prosecution first. Mr Koumjian.

  • Thank you, your Honours. Your Honours, we recognise that choosing the date for the start of the Defence case is a matter within your Honours' discretion balancing your obligation under Rule 26 bis to ensure that the trial is both fair and expeditious.

    We do not think that a delay such as that requested by the Defence would result in an expeditious trial. We think it is an inordinately lengthy delay in the resumption of the taking of evidence in this case, considering the Prosecution called its last witness on 30 January.

    Also, we do think that the fair trial rights of the Prosecution could be affected by an inordinate delay in that the longer the period of time is before the Defence case resumes the longer the period of time has passed that the Chamber has not heard the Prosecution witnesses and all of us have memories that fade over time.

    Your Honours, we do think and we understand that this is a complex case. We, being in a similar situation as the Defence, recognise that people cannot be in two places at one time and that there are a lot of witnesses and materials to deal with, but we do not think the delay requested is reasonable.

    The resources available to the Defence are very significant. At my count - and I will be corrected if I am wrong - the Defence has eight lawyers working on the case, along with trial manager, international and national investigators, case manager and interns, some of whom may be lawyers themselves. The Defence has three offices in The Hague, in Sierra Leone and in Liberia.

    So while we recognise that it is your Honours' obligation to ensure the Defence has sufficient time to adequately and fairly prepare the Defence case and prepare Mr Taylor for his testimony, we think that given the size of the Defence team that that can be done in a shorter period of time than that requested by the Defence. I would not give a date unless your Honours ask me to, because I think it's within your Honours' discretion to set that date.

    We would also be requesting at the earliest reasonable time that the Defence provide certain materials required under Rule 73 ter, I believe it is. Those are materials that your Honours may order.

    In particular, in order for the Prosecution to prepare for the Defence case, we are anxious to obtain the list of witnesses that the Defence intends to call. Of course there is always a situation where something could happen and that could change, but the Defence has had investigators and lawyers representing the accused since shortly after his arrest in 2006. Some of those even remain on the case - some of the same personnel remain on the case. The Defence must have a good idea at this time of the witnesses they intend to call in this case and we would ask within a reasonable - a short and reasonable - time to obtain that list of witnesses and summaries of what these witnesses are expected to say.

    As for the status conference, we are at your Honours' discretion. We will be here whatever day your Honours set. Thank you.

  • Just one question, Mr Koumjian. When you say that the delay requested by the Defence is inordinate, are you referring to their previously mentioned start date of 15 July, or to the latest submission by Mr Griffiths which is that a later date would be preferable?

  • Your Honour, we believe that 15 July - that an earlier trial date could be set for the start of the Defence case than 15 July, ensuring both parties' right to a fair trial and an expeditious trial.

  • Thank you. Anything arising you might want to reply to, Mr Griffiths?

  • Mr President, just this. With all due respect to the Prosecution, in our submission they are in no position to assess what a reasonable time is for the preparation of the Defence case. We who defend Mr Taylor are in the best position to make that assessment and the Court should, in our submission, credit us with sufficient responsibility towards these proceedings that we would not make a request unless we genuinely and reasonably felt that it was necessary in order to guarantee the fair trial rights of the accused. It is after careful deliberation amongst our team that we make this request.

    Now so far as any prejudice which it is suggested the Prosecution might suffer in consequence of our request, in particular the suggestion made by Mr Koumjian that memories fade, we observe firstly that we are here dealing with professional judges, not a lay jury, and furthermore that the evidence in this case is captured in the plain black and white of a transcript available for reference not only to your Honours but also to the Prosecution if Mr Koumjian's memory needs to be reminded in due course.

    So consequently we submit that no prejudice would result to the Prosecution from the delay that we request, observing in response to the recitation by Mr Koumjian of the resources available to the Defence the fact that the Prosecution, even though their case ended as long ago as the end of January, still retain for the most part the resources available to them throughout the currency of their case. So consequently, frankly and bluntly, it really doesn't lie in Mr Koumjian's mount to assess what resources are available to us and consequently what we are able to achieve in the time available.

    I have no further submissions.

  • Thank you. All right. Well, we will take an early morning break and we will notify Madam Court Attendant when we are ready to come back.

  • [Break taken at 10.35 a.m.]

  • [Upon resuming at 11.38 a.m.]

  • In relation to an appropriate date for the commencement of the Defence case we have considered the arguments of the parties, including the memorandum of Mr Griffiths of 26 March 2009 and that of Ms Hollis for the Prosecution of 15 April 2009; both of which were referred to in the Defence submissions.

    We bear in mind in fixing an appropriate start date that Mr Taylor has been in custody since March 2006 and presumably investigations and preparations have been ongoing since that time. We also note that the last Prosecution witness was heard over three months ago on 29 January 2009. We note also that the Defence intends to call Mr Taylor to give evidence and no doubt that will be a substantial amount of time which could be used for the preparation of other Defence witnesses.

    Taking these considerations into account we are not convinced that the time sought by the Defence is justified and we, the majority, are of the view that a reasonable and appropriate date for the start of the Defence case will be Monday, 29 June 2009 and we so order.

    When I say the majority, Justice Sebutinde dissents from this view and wishes to say some words putting forward the dissenting view.

  • Thank you, Mr President. I am of the view - and this is my dissenting opinion - that the time requested by the Defence in order to permit them to adequately prepare their Defence is not unreasonable.

    My view is premised upon three pertinent factors. Firstly, in my view the Defence is in the best position to assess the time that they require at this stage to prepare. This particular Defence team, as opposed to previous Defence teams representing Mr Taylor, in my view have earned themselves a good track record, inasmuch as they have lived up to their commitment at the outset of the trial that the continuance we granted them at the beginning would translate into a smooth trial and it did. I see no reason to doubt Mr Griffiths's commitment now.

    Secondly, the time set by my colleagues is roughly a period of eight weeks from I think the 98 decision and this is based upon a comparison - this compares with, it is not based upon but compares with, the time that this Court granted to the accused persons in the AFRC trial.

    Now, in my view, I think this trial is different in that the parties are not sitting in the jurisdiction where the witnesses are located and both the Prosecution and the Defence have additional logistical problems that are posed as a result of the trial not being held at the seat of the Court, or where the witnesses are located.

    Now, in this particular case the problem is compounded for the Defence because their witnesses are likely to be located at least in two different locations separate from where the trial is being held, and so for me a period that compares either with the period granted in the AFRC or even in the RUF case, which were held in Freetown, is not a realistic comparison.

    Thirdly, I think that a premature start of the Defence case is likely to result in an interrupted hearing with a multiplicity of unforeseen and probably undesirable delays once the hearing begins. In my view I think if adequate time were granted at the start, or before the start, in the long run we would avoid a delay.

    For those reasons I would have granted the time requested by the Defence and which time I think they are entitled to under Article 17 of the Statute.

  • The next matter to consider is a status conference prior to fixing a pre-Defence conference. Now, Mr Griffiths, you mentioned earlier that before considering the matter further you wanted to know what the status conference is all about.

    Well, we could indicate this. If you look at Rule 73 ter, there are a number of things that could be ordered of the Defence prior to the pre-Defence conference. The Trial Chamber proposes that any submissions - well, the Trial Chamber proposes the status conference could firstly deal with any submissions as to what should be produced by the Defence and when it should be produced prior to making any orders for production of those items prior to the pre-Defence conference. That is why we had in mind a status conference.

  • Mr President, we accept the nature of the obligations we have under Rule 73 ter and appreciate the need to set a date for a pre-Defence conference.

    Can I make the following suggestion. I've already indicated that several members of the team are currently in West Africa and are due to return at the end of May, I myself will be engaged in the same mission until that time and we will be in a better position at that stage, the end of May, to comply with some of the obligations and duties which fall upon us under Rule 73 ter. So, could I suggest a date for such a pre-Defence conference on or about 8 June.

  • Are you talking about the status conference prior?

  • I am sorry, I am talking about a pre-Defence conference on or about 8 June which would allow us time to return from West Africa and assess whatever progress has been made. Your Honours will of course be aware of the particular disclosures which are required under that section of the rules and, as a result of the work which is ongoing in West Africa, we will be better placed to provide that information to the Prosecution by such a date.

  • Well then, Mr Griffiths, can we assume that given what can be ordered of the Defence under Rule 73 ter you wouldn't wish to be heard on any of those considerations before the Court actually makes an order obliging the Defence to produce certain things?

  • Well, it may be of assistance to all parties to be clear about what orders the Court proposes prior to that date so that we are all working towards the same goal.

    Now consequently, if that be right, if your Honours are proposing such a status conference on Thursday of this week, as I earlier indicated upon reflection it should be possible to accommodate that.

  • Thank you, Mr Griffiths. Mr Koumjian, do you have anything to say on the issue?

  • No, your Honour. We would be prepared on Thursday, or today if your Honours wish, to address the orders the Prosecution seek, which would be to request the witness names, the exhibits, the summaries and the statements that are within the discretion of the Court under that rule, but Ms Hollis will be back here on Thursday and that date is acceptable to us.

  • What do you say to the proposal for a pre-Defence conference on 8 June? That will be three weeks prior to the start of the Defence case.

  • That's fine, your Honour. We will deal - without prejudicing our position on when the Rule 73 ter materials will be produced, we can address that on Thursday as to setting a deadline on those materials.

  • Thank you, Mr Koumjian.

    Well then, Mr Griffiths, we are grateful you've altered your schedule to --

  • It is not having altered my schedule, but it will be possible to have Mr Anyah here.

  • All right. Well, we appreciate that.

    What we are going to do then is we will order a status conference to take place this Thursday, that is 7 May, at 9.30. Now, the agenda at this stage will simply be a discussion and submissions by the parties on the matters that ought to be produced by the Defence prior to the pre-Defence conference. That agenda can be added to simply by either party emailing the Trial Chamber legal officer prior to Thursday and we will be flexible on Thursday as well as to what relevant matters can be dealt with in relation to Rule 73 ter disclosures.

    We will make a formal order fixing the pre-trial conference on Thursday - I beg your pardon, the pre-Defence conference on Thursday, but we note that 8 June seems to be a suitable date to both parties for the pre-Defence conference.

    All right. Well, we will adjourn the Court now until 9.30 this Thursday morning, 7 May.

  • [Whereupon the hearing adjourned at 11.50 a.m. to be reconvened on Thursday, 7 May 2009 at 9.30 a.m.]