Thank you, Mr President. Aiding and abetting. Some key legal elements of the mode of liability of aiding and abetting. The first observation is that this mode of liability would include the phrase "assisting or encouraging" as it appears in the indictment. You have in the indictment this phrase. It recurs throughout the particulars of the indictment.
So for example in paragraph 5 it reads, "Members of the RUF, the AFRC, AFRC/RUF, junta or alliance and/or Liberian fighters including members and ex-members of the NPFL assisted and encouraged by, acting in concert with", but I stop there for the moment. The phrase "assisted and encouraged by" again appears in paragraph 9 with respect to the particulars of Counts 2 and 3, it appears in the particulars of Counts 7 and 8 at paragraph 18, it appears in the particulars of Counts 4, 5 and 6, at paragraph 14, it appears in the particulars of Count 9 at paragraph 22, it appears in the particulars of Count 10 enslavement, at paragraph 23, it appears in the particulars of pillage Count 11, at paragraph 28. That is merely a specific incident of aiding and abetting. It is not a separate and distinct mode of liability.
The actus reus for aiding and abetting - and I should give you the citation for this proposition that assisting and encouraged by an accused is a specific incident of aiding and abetting. That is the CDF appeals judgment at paragraph 71, especially at paragraph 72. We also rely on the Tadic appeals judgment at paragraph 229, as well as the Blaskic appeal judgment at paragraph 45 and paragraph 46. The actus reus for aiding and abetting. It must be shown that an accused gave practical assistance, encouragement or moral support which had a substantial effect on the perpetration of the crime, and here we rely on the AFRC trial judgment, your Honours' judgment, at paragraph 775.
The key phrase we focus on in this delineation of the actus reus is the last phrase, that the conduct of the accused act or omission must have a substantial effect on the perpetration of the crime. In addition to that limitation there is also the necessary limitation that the crime in question has to be a crime that falls within the parameters of Articles 2 and 4 or 2 through 4 of our statute.
There is a nuance distinction, if you will, between the decisions of the ICTY Appeals Chamber and the jurisprudence of our court, the Special Court, vis-a-vis the specificity of the crime that is aided and abetted. To put another way, is an aider and abettor required to aid a specific crime? That is, is the crime that is manifested by the actions of the principal a specific crime? It is a very, very delicate distinction, not otherwise noticeable, but we point it out for the record.
We maintain that whatever approach your Honours adopt the crime that is alleged Mr Taylor aids and abets has to be a crime within the statute and it has to be the crime behind which his act or omission provided a substantial effect.
Now, the CDF trial judgment at paragraph 229 citing ^ Vasiljevic, the appeal judgment in that case of the ICTY Appeals Chamber, at paragraph 102, says the accused's act or mission should be specifically directed to have such a substantial effect and go to "certain specific crime". So this is the emphasis that the accused's conduct must go to a certain specific crime.
Let's look at some permutations in the evidence that may be deemed to be aiding and abetting. A witness said, at page 9444 through 9447, that the RUF rebels got their ammunition via the NPFL. That is what this witness said. The RUF rebels got their ammunition via the NPFL. The time period for this acquisition of ammunition was given by the witness to be the period between 1991 and 1996. RUF got their ammunition from the NPFL.
We assume for the sake of argument that there is some evidence elsewhere that suggests or confirms that Charles Taylor was head of the NPFL. The assumption here or the inference is that Charles Taylor was behind this provision of ammunition to the RUF. Let us set aside for the sake of argument that we should ignore the temporal requirements of the indictment, 1996 November 30 through January 18, 2002, this is a problem for the Prosecution, but let's give them the benefit of the doubt, the question arises, if you believe that evidence, does this constitute aiding and abetting? Well, that evidence necessarily is not to be viewed in isolation. There is other evidence in the case that your Honours should consider, we propose.
There has been substantial evidence on the record that the border between Sierra Leone and Liberia was closed for a substantial period of time. Different witnesses have come before your Honours and have acknowledged this. Varmuyan Sherif, one of the first few Prosecution witnesses in January of 2008, said that between 1992 and 1996 ULIMO cut off the border between Liberia and Sierra Leone. The relevant part of the transcript for that assertion at page 976 through 977. It also appears at page 978, lines 7 through 11.
Another witness - indeed I see from my notes that it is the same witness - who said the RUF got this ammunition that subsequently confirms that this border was cut off by ULIMO between 1992 and 1996, and that is to be found at page 9445 through page 9446.
The former President of Liberia, Moses Blah, was here and Moses Blah actually extends the period of the border closure through the elections in June of 1997. Moses Blah says that from 1992 until the elections in June of 1997 the border was cut off and the relevant page for the transcript there is page 10193.
So, let's re-examine that witness's evidence 1991 through 1996 the RUF obtained their ammunition via the NPFL. The same witness says, "Oh, by the way, the border was closed between 1992 and 1996." The former President of Liberia confirms the same. Another Prosecution witness confirms the same. Your Honours are asked and placed in a position to consider the capability of this evidence. The first version, if believed, does it amount to aiding and abetting? The second version, if believed, does it negate aiding and abetting? We submit that this type of evidence does not sustain the mode of liability aiding and abetting under Article 6.1 of the statute.
We have a witness saying - this is at page 3028 through 3029 of the transcript - the witness says that Foday Sankoh went to Monrovia to get radios from Charles Taylor. Foday Sankoh went to Monrovia to get radios from Charles Taylor.
We set aside for the sake of argument the purpose for which the radios were being obtained. We accept for the purposes of argument that it was related to the conflict or to facilitate Foday Sankoh's actions in one way or another. We acknowledge for the sake of argument that it amounts to practical assistance but the question arises whether the provision of radios had a substantial effect on the perpetration of a crime punishable under the statute. The question arises to what crime does such evidence go. The question arises regarding the temporal requirement as pleaded in the indictment.
This witness, TF1-360, said this event took place in 1991. That does not fall within the parameters of the indictment. Charles Taylor's actions, even if believed, in providing radios in no way had a substantial effect on the perpetration of any crime. That is our submission in this context.
Now, we have that same witness at page 3107 saying that in 1998 Sam Bockarie bought arms and ammunition from Charles Taylor using money from Koidu Town. Page 3107. Sam Bockarie bought arms and ammunition from Charles Taylor using money from Koidu Town.
So we have a witness saying the arms and ammunition were purchased. We consider the evidence. We assume that if believed does it amount to aiding and abetting? But first you have to apply the standard of review regarding the elements of aiding and abetting. Arms and ammunition purchased. We don't know how much was paid for it, but we can set that aside for the sake of argument. Did those arms and ammunitions have a substantial effect? They could have in perpetration of some crime, but was the crime perpetrated one punishable under the statute? Did they have that substantial effect? When Mr Taylor allegedly gave these arms and ammunition in exchange for money, was his mens rea such that his actions, his act or omission, was specifically directed at a certain specific crime? Recurringly through the evidence your Honours will find this type of allegation.
Another witness said Charles Taylor gave the witness $2,000 and a car. This is at page 11509 and also at 11511 and it is said to happen in 1999. The President of Liberia, sitting in an office, gives one witness $2,000 and a car in 1999. Is that aiding and abetting? Does that have a substantial effect on the perpetration of a crime? Is it perhaps a goodwill gesture, a gesture of friendship? We are assuming for the sake of argument that these things happened, since we are not allowed to comment on the credibility or reliability of these witnesses. We submit that such evidence does not amount or is not sufficient to validate the mode of liability of aiding and abetting.
We take another item of evidence. At page 8918 through page - 8918 and also at page 8020 - we have a witness saying that around June of 1998 Sam Bockarie received information from Charles Taylor that the 448 ECOMOG jet was on its way to attack positions in Koidu Town. The witness says that this information only came from Liberia. Charles Taylor received information - Sam Bockarie received information from Charles Taylor that the 448 ECOMOG jet was on its way to attack positions in Koidu.
Does that amount to aiding and abetting on its face? Does it amount to practical assistance, encouragement, support? We submit that it does not. Why? Because there is other evidence on the record in respect of the 448 notifications that suggests that while they may have come from Liberia they did not come from Charles Taylor directly. While they may have come from Liberia I recall the evidence being that it was somebody at Roberts International Airfield, and we are assuming that this is to be believed at this point, who would alert the fighters in Koidu that the 448 jets were coming, but this witness alleges it comes from Charles Taylor.
We submit that the giving of this information by Charles Taylor has to have behind it a specific direction at a certain crime. This is the whole nuance distinction about aiding and abetting. You provide this assistance, encouragement, but you direct it specifically at a certain crime. What was the crime in question in this example, June 1998? This witness incidentally does not say the basis or his basis for this information, but that comes quite close to assessing his reliability and credibility and so I will not delve further into it.
Now this same witness, the witness who just spoke of Sam Bockarie being alerted about the 448 jets, the witness said at page 8402 and 8403, that possibly in August or September of 1998, before the Kono invasion, a commander went to Liberia for reinforcements. Charles Taylor reorganised a bigger group, armed them and sent them to Sam Bockarie to reinforce the junta troops in Freetown. The reference here is to the 6 January invasion of Freetown.
Now, what do we know about that invasion? There are a few things that are worth noting. When your Honour considers this witness's evidence, it is also appropriate to consider the evidence provided by TF1-360 at page 3383. That witness said that SAJ Musa, the SLA or AFRC, acted completely on his own and without authority from Sam Bockarie in attacking Freetown. The witness acknowledged that Sam Bockarie had no idea where SAJ Musa's group was. The majority decided to disobey Sam Bockarie's orders not to go into Freetown.
So we have another Prosecution witness saying that Sam Bockarie had no idea where the troops that attacked or invaded Freetown were, that SAJ Musa acted completely on his own in invading Freetown, and yet we have another Prosecution witness saying that Charles Taylor reorganised a bigger group, armed them and sent them to Sam Bockarie to reinforce the junta troops in Freetown.
Do we know whether these troops that Charles Taylor allegedly armed and reorganised made their way into Freetown vis-a-vis through Sam Bockarie? We suggest that the evidence on the record shows the contrary.
In respect of the Freetown invasion your Honours have already determined as an adjudicated fact in this case that the RUF troops played little or no role in this invasion. I am referring to the recently issued decision on 23 March this year. Indeed, I should cite the relevant portions of that decision.
One of the facts that were adjudicated is adjudicated fact number 15 which says, "Following heavy assaults from ECOMOG, the troops were forced to retreat from Freetown. This failure marked the end of the AFRC offensive as the troops were running out of ammunition." We pause there. The troops in Freetown were running out of ammunition.
Another witness says Charles Taylor had sent ammunition to Sam Bockarie. Your Honours have as an adjudicated fact the troops in Freetown were AFRC. I continue reading adjudicated fact 15:
"While the AFRC managed a controlled retreat engaging ECOMOG and Kamajor troops who were blocking their way, RUF reinforcements arrived in Waterloo. However, the RUF troops were either unwilling or unable to provide the necessary support to the AFRC troops."
The law requires that Charles Taylor aid and abet a certain specific crime. What is the crime at issue vis-a-vis this alleged armament and reorganisation of a group of soldiers? The soldiers apparently did not make it into Freetown. At least we submit that the Prosecution has not rebutted the presumption that an adjudicated fact is entitled to under these circumstances, so how can it be said that this allegation amounts to aiding and abetting?
Adjudicated fact number 1 makes the point that, "As the founders of the AFRC belonged to the Sierra Leone Army and therefore had been fighting the RUF since 1991, the coalition between the two factions, following the 1997 coup, was not based on long-standing common interests. Both factions officially declared that they were joining forces to bring peace and political stability to Sierra Leone."
Let's pause there. The coalition between the two factions was not based on long-standing common interests. That signifies that these were two separate armed groups. Other evidence adduced confirms that it was the AFRC who went into Freetown. The adjudicated fact and other evidence confirmed that the RUF troops never made it past Waterloo.
So what is the specific crime that Charles Taylor is said to have aided and abetted in the context of the 6 January invasion of Freetown? It is the case that there are parts of the indictment that suggest that Charles Taylor would equally be responsible for the actions of the AFRC. The problem that the Prosecution has is that the evidence connecting Charles Taylor to the AFRC is extremely limited in this case, very tangential at best.
One witness spoke of a meeting in Liberia - and this is at page 8504 and 8506 - a meeting in Liberia with Johnny Paul Koroma, Daniel Chea, the defence minister for Charles Taylor, 11 other AFRC troops including the witness, where President Taylor said he had mobilised most of the SLAs who had come to Liberia and sent them back as reinforcements with arms, ammunition and food and that he continued to do so until the ceasefire.
The witness adds that Charles Taylor was unhappy that there was about to be a division, meaning a division between the RUF and the AFRC. The supplies were sent to the RUF and the AFRC - the arms, the ammunition and the food. Charles Taylor warned them that a division would result in imprisonment because the politicians would use them, saying something to the effect that their main focus should be the presidency, that that was what they should be fighting for, that the assistance was given so that the government of President Ahmad Tejan Kabbah could be removed. This is what the witness testified to.
Let's consider that for a second. This meeting in Monrovia is said to take place in May of 1998. Let's consider what the same witness says later on before the same judges in the same courtroom in the same witness chair. At page 8638 line 6, through 8639 line 26, the witness acknowledged that he was not aware whether Johnny Paul Koroma ever went to Monrovia between 25 May 1997 and August 1999. 25 May, when the junta took over power, 1997 and August 1999. The same witness that said in May of 1998 this meeting took place in Monrovia between Johnny Paul Koroma and Charles Taylor.
The same witness acknowledged at page 8638, line 6 through 12, that he was not aware of any trade in diamonds for arms and ammunition between Johnny Paul Koroma and President Charles Taylor. On its face, the alleged reorganisation and mobilisation of SLA troops, sending them back as reinforcements, providing arms, ammunition and food, as alleged, if believed, would constitute aiding and abetting, but when you delve slightly further and you consider the same witness's evidence, not to mention the evidence of other witnesses, you find that if believed the two cannot stand. One must be right and the other must be dismissed. This is the sort off analytical approach we respectfully submit the chamber would have to undertake in looking at the applicable modes of liability.
There is another point that should be made about aiding and abetting and the law, as pronounced by our Appeals Chamber, is that words of moral support and encouragement to fighters about to go on military operations, or blessings, an affirmation or confirmation that their actions are appropriate, or the provision of medicine which the soldiers believe might protect them, does not constitute aiding and abetting. This is from the Fofana and Kondewa appeals judgment 28 May 2008 at paragraph 110. The Appeals Chamber upheld the CDF trial judgment at paragraph 799 and 800. That is important. Words of encouragement; words of moral support; blessings; provision of medicine.
Your Honours will recall a witness, I believe it is TF1-584, there were one or two of those, and also perhaps TF1-516 if memory serves me, those two witnesses spoke of herbalists - I am quite certain 584 did speak of herbalists perhaps not so 561, but I stand to be corrected. They spoke about herbalists sent by Charles Taylor, local medicine men, who were going to arm all the troops with their native medicine to give them protection. That is not the sort of evidence the law allows your Honours to consider in the context of aiding and abetting. And so we submit that your Honours consider the applicable legal principles, apply the mens rea elements, which I should add one more permutation of the mens rea element because it is important to this case. The law requires that the aider and abetter should be aware of the principal's mens rea, the principal, the person who perpetrates the offence, so Charles Taylor must be aware of the intent level of the perpetrator, the person on the ground who does the offence when he aids and abets and your Honours know that the mens rea element attaches at the moment the crime is committed. What was Charles Taylor's state of mind at the time of the aiding and abetting?
And then there is the subsidiary but relevant question of what was the principal or perpetrator's state of mind? Charles Taylor must be aware of their mens rea. The relevant citation for that, there are several cases, CDF trial judgment at paragraph 231, the Aleksovski appeal judgment from the ICTY Appeals Chamber at paragraph 162, the Furundzija trial judgment of the ICTY at paragraph 245, the Limaj trial judgment at paragraph 518, the Brdanin trial judgment at paragraph 273 and then we have the ICTR Appeals Chamber in Ntakirutimana at paragraph 500 embracing the same principle.
This is important because the evidence the Prosecution presents must show, in the context of a completed offence, that Charles Taylor was aware of the mens rea of the perpetrator, so you have to examine the mens rea of the perpetrator, did they have the requisite mens rea for the resulting offence? Was that offence an offence to be found in Articles 2, 3, 4 of the statute and did Charles Taylor have an awareness of the perpetrator's mens rea?
I made the point previously, and I was looking for my citation about there being a nuance distinction between the mens rea element for aiding and abetting in the ICTY jurisprudence versus our jurisprudence, that is the degree of specificity of the resulting crime, and I would like to provide the citation for that. The relevant ICTY cases would be Aleksovski, the appeals judgment at paragraph 162, the Krnojelac appeals judgment at paragraph 51 and the Brdanin appeal judgment at paragraph 484.
And now the last mode of liability under Article 6.1, joint criminal enterprise. I need to make some preliminary remarks about this. We all know pending sub judice before the Appeals Chamber is an appeal on this issue: that issue deals with the specificity of the pleading of joint criminal enterprise.
As we stand here today until a decision is rendered we are bound by your Honours' majority decision with respect to that issue issued on 27 February this year. We will not address issues going to the specificity of the pleading of joint criminal enterprise in the context of a Rule 98 application. Indeed, it is inappropriate to do so. But nonetheless we are obligated under the circumstances to comment on the sufficiency or insufficiency of the Prosecution's evidence assuming arguendo, for the sake of argument, joint criminal enterprise or JCE as we prefer to call it has been sufficiently pleaded in the second amended indictment.
That involves, in our submission, considering all permutations of common purposes or plans that are possible on the record. Just so that we are on safer ground. And so we will proceed with caution, but we emphasise in particular that by virtue of commenting on this mode of liability we in no way, shape or form wish to contradict any arrangements we have made in our appeals applications, in our notice of appeal and submissions, and our submissions today should not be viewed as constituting a waiver of any of the five grounds of appeal or arguments made in that submission.
Joint criminal enterprise. This is in our view the back bone of this case. This is what this case amounts to. Whether Charles Taylor participated in a criminal enterprise. What was the common purpose, plan, design of that enterprise? Did his participation in this enterprise occur at a time when a crime committed within the jurisdiction of the Court occurred in Sierra Leone?
Your Honours will remember that the Prosecutor - well, the case summary in this case makes clear and I believe Chief Prosecutor Rapp said it in his opening statements, indeed he did say it, all of the crimes alleged in this case took place in Sierra Leone, so all of the evidence you heard about Charles Taylor, I recall it was Zigzag Marzah who said he ordered them to slit open a pregnant woman's stomach in Liberia, all of that has no bearing on this case. The fact of the matter is anything involving Liberia and alleged acts undertaken by Mr Taylor have to be set aside. They are inapplicable for purposes of our consideration.
And so we are considering crimes occurring in Sierra Leone in furtherance of this joint criminal enterprise. Well, let's look at the law regarding joint criminal enterprise. The actus reus your Honours are well aware of it. In fact you have delineated it in several decisions, but we draw mostly from Tadic, the Appeals Chamber decision there. You require plurality of persons, more than one persons. They have to have a common plan, design or purpose that amounts to or involves the commission of a crime that is provided for in the statute, and then the accused must participate in this common plan, design or purpose that involves the perpetration of this crime, and we will just cite Tadic, paragraph 227.
In Tadic they delineate several customary international law cases where this principle derives from and there is a fair amount of consensus about the different categories of JCE. There is the first category, I don't believe Tadic uses the word "basic form", but nonetheless other cases have used this language. The basic form or the what you will call the first category involves co-perpetration cases, where there is a shared intent among the co-conspirators, or participants in the common design to perpetrate a certain crime.
So you have the first category, shared intent, co-perpetrator cases. Does that apply to this case? For the sake of argument, not waiving our rights to appeal, yes. It could be said that, as your Honours have found, it is to be found in paragraph 33 of the indictment. I wonder if the court officer could show paragraph 33 of the indictment.