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

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

  • Good morning Mr President, your Honours, opposing counsel. This morning for the Prosecution are James Johnson, Kathryn Howarth, Maja Dimitrova, Ula Nathai-Lutchman and myself, Brenda J Hollis.

  • [Open session]

  • [The accused present]

  • [Upon commencing at 9.30 a.m.]

  • Thank you. Yes, Mr Anyah.

  • Yes, good morning, Mr President, good morning your Honours, good morning counsel opposite. Appearing for the Defence this morning are Courtenay Griffiths QC, Mr Terry Munyard, myself Morris Anyah and Mr Silas Chekera. Thank you, Mr President.

  • Thank you, Mr Anyah. Well, today is fixed for the Defence motion for judgment of acquittal pursuant to Rule 98. Is the Defence ready to proceed?

  • Yes, we are, Mr President.

  • Mr Anyah, it is probably not necessary to remind you, but the Defence submissions are to not go beyond 1.30 p.m. There is already an order existing in that regard.

  • We appreciate that, Mr President. Thank you.

  • Yes, all right. Please proceed.

  • May it please the Court. Mr President, as you have indicated we are here pursuant to Rule 98 of the Special Court Rules of Procedure and Evidence and we are here to move the Court respectfully in our submission to dismiss each and every count of the second amended indictment against the accused, Charles Ghankay Taylor.

    The basis for that application, or request, has to do primarily in our view with the law; the law that applies to this particular proceeding, that is Rule 98, its standard of review and the law that applies to the offences alleged in the indictment, in particular the modes of criminal liability that have been alleged as well as the elements of each of the respective offences.

    In sum and substance, our position is that the evidence presented to date, viewed by a reasonable trier of fact, viewed in an objective manner does not support or is not sufficient or capable of supporting a conviction. Your Honours are well-familiar with the standard of Rule 98, namely, is the evidence capable of supporting a conviction? Indeed, the rule states it in the form that there is no evidence capable of supporting a conviction. But behind that provision is the jurisprudence, is the case law of the various ad hoc tribunals, the ICTY, the ICTR, as well as of course our Appeals Chamber and other decisions by the various Trial Chambers including your Honours' previous decisions.

    At its core, the basis for our request has very little to do with the crime base evidence that has been led in this case. We have always maintained in various fora, public private and otherwise, that terrible things happened in Sierra Leone. The citizens of the Republic of Sierra Leone faced atrocities of unimaginable proportions. We have never denied that. In the course of the trial your Honours have seen several witnesses, double amputees, crime based witnesses who have been raped and put through unimaginable trauma appeared before your Honours to recount the horror that they experienced. We do not dispute most of that and we say so respectfully.

    However, the problem with this case from its inception has been the linkage evidence, the quality or lack thereof of the evidence linking Mr Taylor to the alleged offences. In proceeding today, emphasis will be placed on the lack of evidence going to each element of each mode of liability applicable under the statute and indeed applicable in one sense in customary international law, and in this sense I am referring to the mode of liability joint criminal enterprise. Those modes of liability under Article 6.1 being planning, instigating, ordering, committing, aiding and abetting in the planning, preparation or execution of an offence, as well as joint criminal enterprise which your Honours are well-familiar on the basis of the ICTY Tadic appeals decision of 15 July 1999 is subsumed, if you will, under Article 6.1 of our statute after having been embraced by our Appeals Chamber in the AFRC decision of last year.

    And then there is the mode of liability under Article 6.3, superior criminal responsibility; in civil law practice some would call it respondeat superior. When those modes of liabilities are considered in detail, and their elements are examined, an objectively reasonable conclusion that we submit your Honours will arrive at is that many of those elements are lacking in this case. There is no evidence going to many of the individual elements of the modes of liabilities that have been alleged and that forms the basis for our application.

    In proceeding I will just say a few words about the modalities of how I will proceed this morning. I don't anticipate speaking for long because, as I have indicated, there is quite a substantial amount of crime based evidence that has been presented and we will focus primarily on the linkage evidence or the absence thereof.

    First, I would like to lay out the factual record that supports our application; The various means of proof that we maintain should be the foundation for your examination of our application.

    Second, I will suggest an approach, if you will, an analytical approach, that we submit the Court should adopt in dealing with this particular process, the Rule 98 process. This is really an analytical approach that other Trial Chambers including your Honours have adopted in various contexts when it comes to the midway submission of no case to answer.

    Third, we will consider the indictment, not to challenge any matter dealing with its specificity or lack thereof for pleading, those matters are not appropriate as your Honours know for Rule 98 purposes, but to consider one particular issue, certain locations that have been alleged in the indictment which we maintain no evidence has been led in respect of.

    Fourth, we will review the evidence focusing primarily on what evidence has been presented in connection with the various modes of liability of the respective offences.

    Fifth, we will ask again more adamantly that you dismiss the 11 counts against the accused.

    I will state when appropriate citations to the transcript of proceedings so that the record is clear given that this is in the nature of an oral submission. I will endeavour to provide to the stenographers citations to legal authority that I mention. I have referred to Tadic, the Appeals decision, we will provide that to the stenographers. I do have a copy of the indictment I would like displayed on the overhead, or if the Court Management section has the original indictment, the one applicable right now from May of 2007, we would ask that it be displayed so that as we go through it everybody can follow along.

  • You want that displayed now, Mr Anyah?

  • It may be displayed now. It may be displayed at some other point in time, but I just put them on notice that when I get to a particular point where I refer to the locations in the indictment it would be appropriate to have it displayed if it pleases the Court.

  • We will make sure that is done.

  • Thank you, Mr President. First, the factual record. There have been 91 witnesses called live before your Honours. We started the trial on 7 January 2008. There have been two witnesses called pursuant to Rule 92 bis that the Defence withdrew its objections to; they never appeared before your Honours. TF1-169 and TF1-081. The respective exhibits associated with those witnesses are exhibits P-284 and 285 in connection with TF1-169 and exhibits P-204A, P204B and P204C in respect of TF1-081. There have been a total of about 473 exhibits presented to date. At least this is by virtue of the information we last received on this score from CMS. 385 exhibits for the Prosecution; 88 exhibits for the Defence.

    In addition to the testimonial evidence, the 92 bis evidence, the exhibited evidence, we will rely on certain decisions your Honours have rendered. CMS227 is a joint filing by the parties dating to 26 April 2007, agreed facts and law. We will rely on that document and its contents. CMS369 is a decision regarding the admissibility or admission of materials pursuant to Rules 89C and 92 bis. The date of that decision is 7 December 2007. We will also rely on that decision.

    CMS370, a decision on judicial notice, following the filing of a motion by the Prosecution. We will rely on that document dated also 7 December 2007. And more recently, on 23 March this year, in reference to CMS765 your Honours rendered a decision on a Defence application for judicial notice of certain facts to be adjudicated from the AFRC trial judgment. That is the factual basis underpinning our motion.

    With respect to the analytical approach we propose, we suggest, that it seems appropriate that your Honours first articulate the law that applies to the various offences - I am speaking of the elements of the respective offences - after which an articulation of the respective modes of liability that have been pleaded in the indictment, following which it seems to us it would then be proper to assess the capability of the evidence presented thus far to support a conviction.

    If we take, for example, Count 1, acts of terrorism, in that instance there are the elements of the offence generally speaking; there has to be acts or threats of violence directed at persons, or their property. The perpetrator has to act willfully in the sense that they were willful in making those civilians the object of those acts or threats of violence and then there is the element that the primary purpose of those acts or threats of violence be to spread terror amongst the civilians. So those we would submit in general constitute the core elements of the crime of terror, but in looking at Count 1 your Honours will then have to examine in respect of Count 1 whether the seven modes of liability alleged in this case can be sustained; whether the Prosecution has presented any evidence concerning any of those seven modes of liability.

    Did Mr Taylor plan to effect those acts of terrorism? Did he instigate them? Did he commit them? Did he order them? Did he aid and or abet in the planning, preparation or execution of them? Was the element of terror part of a joint criminal enterprise that he participated in? Or was he responsible for the crime of acts of terrorism on the basis of superior responsibility? That he knew or had reason to know of the acts of subordinates and failed to take reasonable measures to prevent or punish them.

    That is the approach we suggest your Honours adopt.

    Now, to the indictment. There are certain locations that we submit no evidence has been led on despite they being specifically stated in the indictment. Count 1, acts of terrorism, the particulars appear in paragraph 5. Yes, and we see the subheading "Burning" following which there is paragraph 6.

    If we go to the next page, the Prosecution alleges that burning occurred in the context of the acts of terrorism in Kono District, Freetown and Western Areas among other places. There is the phrase there at the top of the page "Including the following" and it delineates Kono District, it delineates Freetown and the Western Area.

    We submit, and we stand to be corrected, that when you look at the locations dealing with Freetown and the Western Area no evidence has been led in respect of Goderich, no evidence had been led in respect of Kent, no evidence has been led in respect of Grafton and then there is Tumbo, T-U-M-B-O. That is what the indictment uses as the spelling of this location.

    The evidence led in relation to Freetown and a place called Tumbo has the spelling on the record as Tombo, T-O-M-B-O. That spelling was given by Alimamy Bobson Sesay, TF1-334. The relevant pages of the transcript are 8388 through 8389. The word spelt as it is in the indictment T-U-M-B-O does not appear in the record, we submit. We stand to be corrected, but we are fairly certain about that.

    So in respect of those four locations, as concerns Freetown to the extent they have been specifically alleged and enumerated in the indictment, we ask that they be stricken.

    Also with respect to Count 1, paragraph 7, Kono District. It is there said that burning took place in a place called Wendedu, W-E-N-D-E-D-U. The evidence on record has the spelling of that location as Wendadu, W-E-N-D-E-D-U - I am sorry, did I say D-E? It should be W-E-N-D-A-D-U. The two spellings are not the same and that spelling, the latter spelling I have just given, the one that appears on the record W-E-N-D-A-D-U was given by TF1-217, the relevant page number being 19399 at lines 17 through 19. So in respect of Kono District we ask that the spelling as appears in the indictment and that location be stricken.

    The Prosecution did not have to allege necessarily all of these locations, but they have chosen to do so and to the extent they have chosen to do so their proof must match the allegation and it does not in this context.

    Counts 2 and 3, unlawful killings. Paragraph 11, Kono District again. There is the allegation that unlawful killings took place in a place called Bomboafuidu B-O-M-B-O-A-F-U-I-D-U. We submit that there is no evidence on the record as of today's date of any unlawful killing taking place in that location. We therefore ask respectfully that it be stricken.

    Also there is reference in respect of Freetown and the Western Area again to Tumbo, T-U-M-B-O. T-U-M-B-O, as spelt, does not appear in the record. We again ask that that location be stricken with respect to counts 2 and 3.

    Counts 7 and 8, physical violence counts. It is alleged in paragraph 19 with respect to Kono that physical violence took place in a place called Kaima or Kayima, K-A-I-M-A or K-A-Y-I-M-A. With respect to the spelling K-A-I-M-A we ask that that spelling be stricken. The evidence on record pertains to a place K-A-Y-I-M-A, Kayima, and so for purposes of clarification we ask that you strike K-A-I-M-A. We do so respectfully.

    Tumbo again also appears in the context of Freetown and the Western Area and we make the same application, by virtue of its spelling, that it be stricken.

    Now there is Count 9 --

  • Mr Anyah, are you asking the Judges to strike out these names because there is no evidence adduced or what?

  • That is precisely the case, Justice Sebutinde. The request of course is predicated on the applicable standard of review that there is no evidence capable of supporting a conviction in respect of the alleged offences in each of those areas as they have been named and spelled in the indictment.

    Now, with respect to Count 9, child soldiers, conscripting or enlisting child soldiers, your Honours will note that in paragraph 22 it alleges that these alleged crimes occurred throughout the Republic of Sierra Leone. That is what the particulars say. We don't have specific areas delineated in those particulars.

    Well, if that is the case, then it necessarily flows that all of the occasions that I have just read from Goderich in Freetown to Kayima, Tombo and the like, could not necessarily be included in that allegation. And so it seems appropriate that there is a modification to that allegation that all of those - that the conscription and enlisting of child soldiers occurred throughout Sierra Leone, there is an exception and the exception would be the areas that I have just delineated in respect of the other counts where no evidence has been led because those areas do not appear on the record.

    We submit that the same would be applicable to Counts 2 and 3 of the indictment because in addition to delineating specific areas in Sierra Leone where it is alleged that these offences took place, it does say in the particulars that it occurred throughout Sierra Leone. The unlawful killings of an unknown number of civilians occurred throughout Sierra Leone. If that is the case and there is no mention of Goderich in the record, no mention of Kent, no mention of Tombo, or an incorrect spelling of Tombo, then we propose - indeed we submit - it is appropriate to dismiss or exclude rather all of those locations vis-a-vis Counts 2 and 3. It would not be correct to say that unlawful killings took place throughout the Republic of Sierra Leone.

    May I have a moment, Mr President?

  • Yes.

  • Now to the modes of liability. I will start with planning. The allegation of these modes, just to be specific, appear in paragraph 33 of the indictment. That is where the Prosecution has delineated articles, the modes of liability in Article 6.1 of the statute, the only exception being that joint criminal enterprise is not specifically enumerated in that article but nonetheless we all know it applies.

    Planning. Your Honours have defined planning as implying that the accused - in this case Mr Taylor - either alone or in conjunction with others, did contemplate designing the commission of a crime at both the preparatory phase of the crime and the execution phase of the crime. Those words are important, whether it is a preparatory stage or whether it is the execution stage and they are used in the conjunctive, preparatory and the execution phase.

    Also significant to planning is that the level of participation of the accused must be substantial. Your Honours have made this point in the AFRC decision at paragraph 765. The ICTR trial judgment in Akayesu, 2 September 1998, has made this observation. The Brdanin judgment of the ICTR, paragraph 268, the Krstic judgment of the ICTY paragraph 601. I suspect I said Brdanin was in the ICTR, but it should be the ICTY, and the Stakic trial judgment of the ICTY has also made this observation. The actus reus for planning requires that the accused together with others designated the criminal conduct that constitutes the charged crimes. The mens rea for planning involves direct intent in relation to the accused's planning. That is, the person must act with direct intent.

    Alternatively, he or she may act with an awareness of the substantial likelihood that the crime would be committed in the execution of the plan.

    Now, what is important here is that the crime that is envisioned has to be a crime within Articles 2,3 and 4 of our statute. It cannot just be any crime. The crime that is manifested by this substantial participation of the accused has to be one of the crimes in Articles 2, 3 and 4.

    Now, let us take an example on the record and we submit that there is very little evidence of planning that has been adduced so far in this case. One example, there was a witness who came before your Honours, and this appears at page 2384 of the transcript. The witness testified that sometime in 1998, the witness being TF1-371, that Sam Bockarie received instructions from Charles Taylor --

  • Yes, Ms Hollis?

  • I rise to raise a concern that any evidence given by this witness be disclosed in open session.

  • That was a protected witness obviously.

  • Well, you had better watch what the substance of your submissions are going to be, Mr Anyah. If you think you are going to tread on an area that is likely to disclose the identity of the witness then we may have to make some appropriate order.

  • I appreciate the concern by counsel opposite and we are mindful of that and I do not intend to violate your Honours' protective order.

  • All right. Go ahead please.

  • The witness said that Sam Bockarie received instructions from Charles Taylor to maintain Kono District. Arguably someone might suggest that that is evidence of some kind of planning. Well, we look at the elements of planning. Is this allegation of instructions, vague as they may be, applicable to the preparatory stage of planning? Is it likewise - sorry, to the preparatory phase of the crime? Is it likewise applicable to the execution phase of the crime? Whatever crime your Honours may choose that it applies to, whether you say it applies to Count 1, terrorising the civilian population, we submit that when you apply the elements for planning that sort of allegation does not amount legally to planning. You have to also consider whether it involves or illustrates substantial participation by the accused. We submit that it does not.

    Another witness said to this Court, this is at page 2640 through 2642, that the January 1999 attack on Freetown was planned by the RUF and Charles Taylor. That is what the suggestion was. At page 2812, the same witness says that none of the senior RUF commanders were involved in the 6 January 1999 invasion of Freetown. The witness says that - and this is at pages 2642 through 2644 - that the SLA/AFRC, not the RUF, took initiative - took the initiative for the Freetown invasion, in particular the West Side Boys and SAJ Musa. So when there is some evidence about an alleged plan between the RUF and Mr Taylor, and yet sometimes even from the same witness it is later on said that the RUF played a minimal role, if any, in the invasion of Freetown, and that it was the SLA and the AFRC that took the initiative, we submit when you apply the standard for Rule 98 that sort of evidence is not capable of supporting a conviction. And the word "conviction" is also important because the jurisprudence speaks of a conviction in terms of proof beyond a reasonable doubt.

    If you look at the evidence, even if believed, in this case let's assume you believe both versions, the versions the witness says initially, that Charles Taylor and the RUF planned this attack, and let's assume you believe the version that the witness says later on while testifying, that the RUF played a limited role, if at all, and that it was the SLAs and the AFRC, in particular SAJ Musa and the West Side Boys, who orchestrated this attack, you believe both accounts and you necessarily reasonably would conclude that such evidence is not capable of sustaining a conviction.

    These are examples of planning. There is very little evidence in the record that demonstrates that Charles Taylor planned, as the word is meant in Article 6.1. Let's take another example of what another witness said. Another witness said - and this is at page 5744 of the transcript - that in February or March 1998 Superman, Denis Mingo, came back with ammunition he received via Daniel Tamba, also known as Jungle, who in turn received it from Charles Taylor for operation Fitti-Fatta to reclaim Koidu. That is what the witness said and I believe I have cited the transcript in the record. You apply the legal elements for planning. It really does not apply in this context.

    This arguably, one might say, is more appropriately related to the mode of liability of aiding and abetting perhaps, but this is the sort of evidence the Prosecution has led in this case. All of this, in particular the issue of planning, is best illustrated when we consider the mode of liability of committing because that involves the most direct participation of the accused in any of these crimes.

    Your Honours have defined "committing" as involving direct and physical perpetration of the crime by the accused. We submit that your Honours can check each and every page of the transcript in this record. You will not find any evidence - none - led in respect of committing, that Charles Taylor personally in any way whatsoever, directly participated in the sense of physical perpetration of any of the charged offences. There is no evidence of that mode of liability. And what that means is that with respect to all eleven counts the mode of liability alleged, that he committed any of these offences, as that phrase is meant specifically in Article 6.1 fails. That mode of liability cannot be substantiated. That is our submission.

    Let us consider the mode of liability instigating, whether or not Charles Taylor instigated any of these offences. The actus reus for instigating, as your Honours are familiar, that the perpetrator urged, encouraged or prompted another person to commit the offence. This could be done either impliedly or expressly and of course by acts and/or omissions. But what the case law says, and this is the important part we stress, is that the conduct, this act or omission of the alleged perpetrator, in this case - rather, this act or omission of the accused in this case - must contribute substantially to the conduct of the perpetrator for it to constitute instigation. And what does that mean? It means anybody can come in here and make any allegation that Charles Taylor did such-and-such to urge that somebody do certain crimes in Sierra Leone but, whatever the substance of the allegation is at this stage of the proceeding, the acts or conduct of Mr Taylor must contribute substantially to the conduct or the perpetration of the offence.

    I will give your Honours an example. At page 10049, rather 10042 of the transcript, a witness testified that Charles Taylor told Johnny Paul Koroma, over the satellite phone, to capture Kono District. That is page 10492. Charles Taylor told Johnny Paul Koroma over the satellite phone to capture Kono District. That prompting, if you will, does it have a substantial contribution to the perpetration of the crime? In this case attacks on Kono district in February 1998. When you apply the legal standards for instigation, we submit that such conduct would not be found to contribute substantially to the attacks even if believed, and that is not recounting facts on the record that might contradict that. We are not asking that your Honours assess credibility or reliability of what these witnesses have said at this point.

    But instructive on that is also the fact that the case law allows your Honours to disregard evidence that is obviously incredible or obviously unreliable. It does not allow for fine assessments of credibility or reliability, but it does allow your Honours the discretion, the leverage, to dismiss something that is completely ridiculous in many ways, or not consider rather something that is completely ridiculous.

    Now, another example of instigation. A witness testified before this Court at page 11067 that at a secret meeting in Buedu, in April 1998, Ibrahim Bah said that Charles Taylor recognises the junta, advises them to obtain Kono for resources and to build an airfield. Charles Taylor recognises the junta. This is April of 1998. Your Honours recall that the phrase "junta" is often used in connection with the junta regime from 25 May 1997 through February of 1998, but this witness speaks of April 1998.

    At page 11177 of the transcript, the same witness said to your Honours, he acknowledged, that he told the Sesay Defence team that he was not at the meeting in Buedu. The same witness could not confirm that Denis Mingo, Ibrahim Bah or Daniel Tamba attended the meeting. So you have a witness saying one thing on direct examination and most probably the other thing on cross-examination. Same witness.

    The standard of review asks your Honours to consider this evidence, if believed. If you believe that there was such a meeting, and if you believe that Ibrahim Bah was conveying information from Charles Taylor, is it capable of supporting a conviction when the same witness asks you also to believe his statement that he wasn't in attendance at the meeting, he cannot confirm whether Ibrahim Bah was at the meeting or Daniel Tamba or Denis Mingo. When you apply the applicable standard of review to such items of evidence, we submit the allegation fails; at least for Rule 98 purposes.

    There is also something that should be said about instigation. The law requires that there must be a causal link between the accused's act of instigation and the perpetrator's commission of the crime. So if you take the example of what I have said or just read that the witness said, that Charles Taylor recognises the junta and advises them to obtain Kono, there must be a causal link between these statements purportedly made by Charles Taylor and the perpetration of the crime; in this case the crime being suggested is an attack on Kono in 1998. The law requires it. The reference for that requirement, jurisprudentially speaking, comes from the Appeals Chamber's judgment in the Fofana and Kondewa decision, at paragraph 54. The CDF appeals judgment. We would also cite the Limaj trial judgment from the ICTY at paragraph 515. We would cite the Brdanin trial judgment from the ICTY at paragraph 269. We would cite the Bagilishema trial judgment from the ICTR at paragraph 30.

  • Mr Anyah, could you please repeat the paragraph for the Fofana judgment.

  • Yes, your Honour. Paragraph 54.

    Now, we have not even considered the mens rea for instigating. The mens rea for instigating requires direct intent, not recklessness or negligence, direct intent. Otherwise, there is knowledge required in the nature of a substantial likelihood that a crime would be committed in the execution of that instigation. That means Mr Taylor must know that there is a substantial likelihood that what he is saying, recognise the junta, take over Kono, there is a substantial likelihood that that will be manifested. It is not on us to prove the evidence of that; The Prosecution has to make the link. They have to bring the evidence to show that he possessed this mens rea at the time he transmitted that instruction or urging or prompting, if you will.

    Your Honours, if you examine closely the evidence that has been presented, and you examine the appropriate legal elements, you will find the evidence lacking.

    Also on instigating, it must be shown that the accused intended to provoke or induce the commission of the crime, or that he had reasonable knowledge that a crime would likely be committed as a result. This is another permutation of the same substantial likelihood prong of the two possibilities when it comes to the mens rea for instigating.

    We consider the mode of liability, ordering, Article 6.1. The same CDF trial - the same CDF case, in this context the Trial Chamber, in its judgment at paragraph 225, defined the crime or the mode of liability of ordering as involving a person in a position of authority ordering another in a subordinate position to commit an offence. That is essentially ordering. There must be the relevant mens rea for the crime with which the accused is charged, and then the accused must have foreseen the possibility of a criminal offence being committed as a result of his orders.

    Some of the evidence that the Prosecution has presented in this context in our view is similar to this. It says Charles Taylor told Foday Sankoh to go to the Ivory Coast for the peace accord. This is at page 4488 of the transcript. Page 4488 of the transcript, the witness said Charles Taylor told Foday Sankoh to go to the Ivory Coast for the peace accord.

    The same witness at page 4385 said that Charles Taylor ordered artillery to be sent to the RUF in Gbarnga. We take them one at a time. The first allegation he told Foday Sankoh to go to the Ivory Coast. The interesting thing about the allegation is that the witness places this prompting or this order in 1998. Now we have as a judicially noted fact in this case - I believe it is a judicially noted fact - that Foday Sankoh was in custody for most of 1998. Judicially noted fact U. In July 1998 Foday Sankoh was transferred from the custody of the Nigerian government to the custody of the Sierra Leonean government. We are also aware of the fact that Foday Sankoh - there has been evidence in this case that Foday Sankoh was arrested in 1997 and that he remained in custody of the Nigerians until this July 1998 when he was transferred to the custody of the Sierra Leoneans. So you have a witness coming before your Honours and saying that in 1998 Charles Taylor directed Foday Sankoh to go to the Ivory Coast, but Foday Sankoh was in prison. In fact, by October of 1998, Foday Sankoh had been convicted of treason and sentenced to death in the High Court of Sierra Leone. How can that be evidence of ordering when you apply the applicable legal standard? Is it being suggested that Foday Sankoh was a subordinate to Charles Taylor at this point in time? We will come to joint criminal enterprise and seek to ascertain what sort of relationship existed between the two men during the various periods of time that the Prosecution alleges in various documents constitute the temporal element of the joint criminal enterprise. We will deal with that later, but can this be deemed to be evidence of ordering? We submit it cannot.

    You look at that evidence. You look at other evidence on the record. That sort of evidence is not capable of supporting a conviction to the extent that an essential element of one of the alleged modes of liability is absent. And, of course, I appreciate the distinction between failure of proof vis-a-vis a mode of liability and failure of proof vis-a-vis an entire count. When I make the assertion I am making, your Honours I hope will appreciate that I am simply saying under Article 6.1 the mode of liability ordering has not been sustained.

    The second allegation by the witness that Charles Taylor ordered artillery to be sent to the RUF in Gbarnga. The implication here is that Charles Taylor, through his orders, facilitated the crimes of the RUF and the aspect of the provision of the ammunition will of course be applicable to the aiding and abetting mode of liability.

    The difficulty with that evidence at page 4385, and it is also to be found at page 4393, is that it speaks of 1992. 1992, Charles Taylor ordering ammunition - well, artillery - to the RUF. The indictment period in this case commences on 30 November 1996 and runs through 18 January 2002. Such an allegation falls outside the indictment period. That being the case, for what purpose might it otherwise be considered? Some would argue joint criminal enterprise - we will come to that - but when you consider other modes of liability, when you consider that the Prosecution framed the indictment in this case, they didn't have to limit it to November 1996 until January 2002. When you consider your obligations to the fair trial rights of the accused, and you apply the applicable standard of review under Rule 98, this type of evidence, considering the parameters of the indictment, its temporal parameters in our view, cannot support a conviction on the basis of ordering as a mode of criminal liability.

    Let us consider aiding and abetting. Mr President, may I have a moment?

  • Yes, go ahead.

  • 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.

  • Your Honour, the document is on the screen.

  • I see that. I do not have my - I was on LiveNote and not on the document cam. Yes, thank you, Madam Court Officer. Paragraph 33 of the indictment and I am focused on the last two sentences. You have the word, "The accused" and then you have after it "otherwise aided and abetted". We have just considered aiding and abetting. Then there is the disjunctive "or" "of which crimes amounted to or were involved within a common plan, design or purpose in which the accused participated, or which were a reasonably foreseeable consequence of such common plan, design or purpose."

    The first phrase there, "which crimes amounted to or were involved within a common plan, design or purpose in which the accused participated", most would invariably agree that that is the basic form or first category or co-perpetration modality of aiding and abetting - of joint criminal enterprise.

    The last sentence there, "Or were a reasonably foreseeable consequence of such common plan, design or purpose", most would agree constitutes what some have termed the extended form or the third category of joint criminal enterprise.

    The third category we will discuss a little bit later, because there is a second category which doesn't appear to be applicable in this case and that category generally is a variant of the first category. It involves often times co-perpetration. It involves or derives mostly from concentration camp cases where there is a system of ill-treatment against the detainees and that clearly does not apply to the facts of this case.

    So we assume for the sake of argument that the first or basic form and the third or extended form of JCE apply to our case. What are the elements vis-a-vis the actus reus and the mens rea? I have gone through the actus reus. We will consider each of those vis-a-vis the evidence that has been presented. The mens rea element or the subjective element of the first category. The law requires that they have shared intent to perpetrate a certain crime and one or more of them, of the co-perpetrators, actually perpetrate the crime with the requisite intent for the crime that is perpetrated. And we cite Tadic in support of that, paragraphs 228 and 220.

    With respect to the third category, or extended form, the requisite mens rea, Mr Taylor has to have the intention to take part or participate in a joint criminal enterprise and to further the criminal purposes of that enterprise or group, either individually or jointly or in concert with others.

    In addition, he has to contribute to the joint criminal enterprise and to the extent a crime which is foreseeable takes place, that is to the extent a crime that is foreseeable from the activities of this joint criminal enterprise takes place, in order to be called culpable the accused must willingly take the risk that such a foreseeable crime might occur; The foreseeability of the possible commission by other members of the group of offences that do not constitute the object of the common criminal purpose. This is at paragraph 220 of Tadic. So those are the, broadly speaking, the constituent elements of joint criminal enterprise, the actus reus and the mens rea.

    A preliminary observation. There is often confusion about whether it should be referred to as a common purpose, whether it should be referred to as a common plan, whether it should be referred to as a common design. This is merely a matter of nomenclature. Different Appeals Chambers in our submission will select the appropriate terminology depending on the particular facts of their case or the case before them.

    In the AFRC appeals judgment the preference that was adopted was the language of common purpose. Tadic, the appeals judgment at paragraph 228, in that same paragraph uses the phrase "common design". Later in the third paragraph it uses the phrase "common plan". In paragraph 220, Tadic uses the phrase "common purpose" and "common plan" and in paragraph 229 it speaks of "a common purpose or design". Whatever you wish to call it, common plan, common purpose, common design, all of this derives from the old conspiracy mode of accomplice liability and that is a domestic law term, but I think most people understand the import of it, legally speaking. The bottom line is that these people who engage in a joint criminal enterprise must have a plan. They must have a purpose.

    Well, let us consider in the first instance some of the Prosecution's suggested purposes or suggested common plans. The Chief Prosecutor, Mr Stephen Rapp, spoke to your Honours on 4 June 2007 in his opening statement, and the Chief Prosecutor said - and I will read it. This is from page 30 of the transcript of 4 June 2007, at lines 8 through 15. Prosecutor Rapp said:

    "The witnesses that we will call and the documents that we will present will prove that the accused is responsible for the development and execution of a plan that caused the death and destruction in Sierra Leone. That plan, formulated by the accused and others, was to take political and physical control of Sierra Leone in order to exploit its abundant natural resources and to establish a friendly or subordinate government there to facilitate that exploitation."

    Mr Taylor formulated this plan, he and others, to take political and physical control of Sierra Leone, exploit its natural resources, install a friendly or subordinate government there. The Prosecution's opening - this is the road map that sets us on the course during the trial. In the case summary filed by the Prosecution shortly after the opening, the case summary was filed on 3 August 2007, the Prosecution elaborates to some degree about this meeting of the minds or members of this joint criminal enterprise.

    The case summary, I do not have a copy to be displayed but I will read from the document. I don't know if the Court Manager - if the courtroom officer has a copy that could be displayed. Paragraph 1 of the case summary - and when I say case summary, I of course mean the second - I mean the amended case summary accompanying the second amended indictment.

    Paragraph 1 says that:

    "In the late 1980s the accused received military training in Libya from representatives of the government of Muammar al-Qaddafi. While in Libya the accused met Foday Saybana Sankoh."

    Pause there and now an important phrase, or important sentence, "The two made common cause to assist each other in taking power in their respective countries."

    So we have Charles Taylor and Foday Sankoh meeting in Libya while receiving training from representatives of Colonel Muammar Gaddafi and the two made common cause. And what is the common cause about? To assist each other in taking power in their respective countries.

    Paragraph 3, "In December 1989 the NPFL, led by the accused, began conducting organised armed attacks in Liberia. The accused and the NPFL were assisted in these attacks by Foday Saybana Sankoh and his followers."

    Pause there. We submit - and this is a digression - I will come back to the core issues of joint criminal enterprise, but this is related, there is little or no evidence on the record before your Honours that Foday Sankoh provided any sort of assistance to Charles Taylor, militarily, monetarily or in any other way, shape or form. In Charles Taylor's armed insurrection in Liberia, starting on 24 December 1998, there is little or no evidence to that effect. 1989. Thank you, Mr Taylor.

    That raises an interesting question. We are not suggesting, mind you, that there is a legal requirement that there must be a quid pro quo in a joint criminal enterprise. We wouldn't pass on that issue. But in a question that necessarily begs for an answer is, if two people agree on something and the Prosecutor says they made a common cause to assist each other in taking power in their respective countries, what did Foday Sankoh do for Charles Taylor?

    Witness after witness has been brought by the Prosecution to say that Charles Taylor was funneling arms and ammunition to the RUF; that at Camp Naama members of the RUF were trained. Well, we have heard that Foday Sankoh trained several radio operators. We know Foday Sankoh was a radio man - a communications man - from the evidence. What did he do for Charles Taylor? Did he train any of Charles Taylor's NPFL fighters? Is there evidence of Foday Sankoh giving Charles Taylor money? Is there evidence of Foday Sankoh sending arms or ammunition to assist Charles Taylor? None. It has been a one-way flow, if you will, of alleged assistance from Charles Taylor to Foday Sankoh.

    The case summary continuing at paragraph 42, page 10, it reads:

    "Between about 1988 and about 18 January 2008 - 18 January 2002, the accused and others agreed upon and participated in a common plan, design or purpose to carry out a criminal campaign of terror, as charged in the second amended indictment, in order to pillage the resources of Sierra Leone, in particular the diamonds, and to forcibly control the population and territory of Sierra Leone."

    Pause there. This is different than what is said in paragraph 1 about a common cause between Foday Sankoh and Charles Taylor to assist each other in taking power in their respective countries. This sounds more like what the Chief Prosecutor said on 4 June 2007 regarding the usurpation of the resources of Sierra Leone.

    Let's assume for the sake of argument that both constitute a common plan, taking over power in Sierra Leone, depleting the resources, installing a friendly government in Sierra Leone, are those crimes punishable in Articles 2 through 4 of the statute? We submit they are not.

    If we assume for the sake of argument that one common purpose was to install each other as presidents of their respective countries, that is not a crime within Articles 2, 3, 4 of the statute. Let's assume that diamonds was what they were interested in, and they wanted to pillage the resources of Sierra Leone, we submit that that was not a crime, or that is not a crime within Articles 2, 3, 4 of the statute. And so a question arises as to what evidence could possibly be led in respect of something that is not criminal?

    If one of the constituent elements of the actus reus of a joint criminal enterprise, a common plan, design or purpose, and the alleged common plan, design or purpose is not criminal, no amount of evidence can turn it into a crime. So in that respect, again proceeding for the sake of argument that JCE has been sufficiently pleaded, either common purpose fails.

  • Mr Anyah, we don't want to miss any of your submissions from the record, and I have just been given notice that the tape is just about finished. So this may be a good time to take the morning break.

  • We will resume again at 12 o'clock.

  • Thank you, your Honour.

  • [Break taken at 11.30 a.m.]

  • [Upon resuming at 12.00 p.m.]

  • Thank you, Mr President. I think before the break we were still considering the Prosecution's amended case summary in this case and I would like to pick up where we left off.

    Paragraph 42 was where I believe we were and what is interesting about this paragraph, in addition to providing what is arguably a further explication of what the alleged common purpose of this joint criminal enterprise was, the beginning phrase of this paragraph which reads, "Between about 1988 and about 18 January 2002" is instructive, it is important, because your Honours will recall that one of the aspects or component of a joint criminal enterprise is temporal in nature. For how long and during what time period did the joint criminal enterprise exist?

    So we have an indictment who - which in sum and substance has alleged that the events took place between 30 November 1996 and 18 January 2002 - I mean the crimes, that is, took place in that window. And we have a case summary amplifying the indictment by saying or suggesting, both in paragraph 1, when it speaks of the Libyan meeting between Sankoh and Taylor in the late 1980s, and in paragraph 42 where it speaks of 1988, that this criminal enterprise or part of its constituent elements began their manifestation as far back as 1988.

    This window, if you will, between 1988 and 2002 is reinforced in paragraph 44 on the same page, 44.1. Incidentally, there is no paragraph 44 in the Prosecution's amended case summary. Paragraph 44.1 alleges or suggests:

    "Others participated in the common plan, design or purpose during various periods, including:

    (a) Foday Saybana Sankoh who participated between about 1988 and January 2002."

    On page 11, subsection (b) of paragraph 44.1:

    "Other commanders and other leaders of the RUF from about 1990 until about 18 January 2002;

    (c) other commanders and leaders of the NPFL from about 1988 until about 18 January 2002."

    And on and on and on. Interestingly in subsection (e), when it speaks of the AFRC, it says, "Commanders and others of the AFRC who agreed to and commenced participation in the common plan on or about 28 May 1997 through about May 2000."

    Pause there. This suggests the commanders of the AFRC, when they overthrew the government of President Tejan Kabbah on 25 May 1997, were perhaps not acting in furtherance of a common plan, design or purpose within the meaning of joint criminal enterprise as a mode of liability.

    If the Prosecutor is telling us that their participation commenced in earnest on 28 May 1997 then at the time President Kabbah was overthrown on 25 May they, for all practical and intents and purposes, at least what we can deduce from reading the case summary, were not participants in any common plan in conjunction with Charles Taylor and/or Foday Saybana Sankoh.

    And then we have in subsection (g), "Associates of the accused who worked under his direction or in cooperation with him to further the common plan from about 1988 until about 18 January 2002."

    Now, we have discussed two possible permutations of the common plan. Paragraph 44.3, the last sentence is important. The paragraph reads: "At times during the armed conflict there were lulls in active hostilities."

    However, from its inception until the end of the armed conflict in Sierra Leone on or about 18 January 2002, the common plan as described in paragraphs 42 and 43 above remained the same. So the Prosecution is telling us in the amended case summary that this common plan did not change. This common plan that spans from 1988 until 2002 did not change.

    The alleged meeting of the minds that Charles Taylor had with Foday Sankoh in 1998 its sum and substance, its core, its purpose, did not change. There were no mutations between 1988 and 2002. That means the evidence should bear this out. Assuming for the sake of argument that whatever common plan they have alleged is a crime, then the evidence must bear out that the common plan remained one and the same, assuming in the first instance there was a common plan.

    Let us consider some of the evidence that has been presented. Generally, we know Foday Sankoh was imprisoned, as I have mentioned previously from 1997, I believe the evidence is March 1997, until his release to attend the Lome Peace Accord on or about in April of 1999.

    There has been evidence that Foday Sankoh and Sam Bockarie had a dispute while Foday Sankoh was in custody. The leader of the RUF, the evidence suggests or confirms, was in prison. He is the one with whom it is alleged Charles Taylor had this meeting of the minds. What evidence is there to suggest that Charles Taylor and Sam Bockarie, who assumed the leadership of the RUF, had a meeting of the minds amounting to the same common purpose that Charles Taylor had with Foday Sankoh?

    Evidence confirms that after Sam Bockarie departed for Monrovia on or about 14 December 1999, at some point thereafter Issa Sesay took over the leadership of the RUF. That being the case, one has to review the record to find out what evidence suggests that there was a meeting of the minds, that Issa Sesay and Charles Taylor were both participants in this common plan, that the plan that existed between Charles Taylor and Foday Sankoh, starting as alleged from 1998, manifested itself or as alleged from 1988 manifested itself in the relationship, if any, between Charles Taylor and Issa Sesay. All we are doing, your Honours, is applying what the law requires, guided by the delineations and scope that the Prosecution has pleaded in the indictment.

    Let us consider the 6 January invasion of Freetown. The Chief Prosecutor in his opening statement said - and this is the transcript of 4 June 2004, starting at page 69 at line 6 - "The accused's responsibility for the events of 6 January and its aftermath will be established through Prosecution witnesses who testify to the following facts", and then he goes on to comment and I will just --

  • Just to correct the record, did you say the transcript of the 4 June 2004?

  • If I did I meant 2007, but I believe I said 2007.

  • Well the written record has 2004, but it is now corrected anyway.

  • Justice Sebutinde says I said 2004 so I withdraw my explanation.

    Now the Chief Prosecutor about 6 January, he told this Court, he said Sam Bockarie was the spokesman for the invading forces. Communications between Sam Bockarie and Alex Tamba Brima continued during the invasion. RUF fighters and some Liberian fighters sent by the accused weeks before the invasion reinforced the fighters of Alex Brima and enhanced the military strength of the forces." In the earlier session this morning we have considered evidence that suggests otherwise, that the RUF never made it past Waterloo and we stand by the citations made there.

    Chief Prosecutor suggested that the invasion was the culmination of years of assistance by the accused towards the common plan to take over the political control of Sierra Leone. Here he says the common plan to take over the political control of Sierra Leone. The phraseology about pillaging the resources that appears in paragraph 42 of the case summary, in order to pillage the resources is not mentioned in the context of 6 January or the common plan, design or purpose to carry out a criminal campaign of terror is not necessarily mentioned at this point by the Chief Prosecutor.

    He suggests that towards the end of the period of extreme violence Charles Taylor called Sam Bockarie to Monrovia and promoted him. There has been evidence we acknowledge, although we can't comment on its reliability or credibility, there has been evidence of an alleged promotion of Sam Bockarie to general by Charles Taylor.

    He says a few months after the invasion somewhere in mid-1999 Charles Taylor hosted JPK, Johnny Paul Koroma, and some senior leaders of the AFRC in Monrovia and gave them $15,000 as a show of support.

    Joint criminal enterprise requires in its first permutation a shared criminal intent of all the co-perpetrators. That means Charles Taylor's intent must be the same as Sam Bockarie; it must be the same as Alex Tamba Brima; it must be the same as SAJ Musa. They must have a shared criminal intent and then one of them commits an offence punishable under the statute.

    There has been evidence before this Court to suggest that as far as the AFRC was concerned the purpose - the primary purpose if you will - in furtherance of SAJ Musa's invasion of Freetown was to restore the Sierra Leone Army. There has been evidence about this. I have commented on the AFRC acting essentially alone in this invasion.

    If the persons who went into Freetown acted with a different intent, or acted with a different purpose, how can it be said that Charles Taylor is criminally responsible? The Prosecution is obligated to plead a change in the common purpose or plan if one in fact materialises. There are cases where a group of co-perpetrators start out with one intent and whatever their ultimate objective is along the course of the way it changes. It happens all the time in criminal cases. But the Defence cannot guess at what this change is. The Prosecution has to lead evidence about the changed purposes and here you have the actual forces who go into Freetown on the Prosecution's own evidence before this Court, witnesses called by them, some saying that re-establishing or reinstating the Sierra Leone Army was the main reason behind this.

    Now, there has been evidence also of SAJ Musa and what he instructed his fighters to do or not do during the invasion. This comes from a witness at page 9015 through 9018 of the transcript. The witness says in Colonel Eddie Town his group met with SAJ Musa and SAJ Musa ordered them to go to Freetown and overthrow the government without killing, looting and burning houses. This is the Prosecution's own evidence. So on the one hand the standard of review for Rule 98 asks you to believe this evidence, including what I have just read. On the other hand it asks you to believe the alleged involvement of Charles Taylor in the 6 January invasion. But the two cannot stand. The two cannot be capable of supporting a conviction. They are contradictory. And this is where the application of the legal principles to the facts becomes important.

    What other evidence has there been about this issue, this continuing common plan or purpose? We have a witness who testified that in 1999 - and this is at pages 11525 and 11528 - that the transcripts, if you will, of meetings were recorded and the recording was given to Charles Taylor. This suggests that he was informed or kept abreast of what was going on in Sierra Leone.

    The witness adds at page - rather another witness, I am sorry, adds at page 4366 that radio reports of all events in Sierra Leone were sent from Koidu to Charles Taylor. So that is an allegation made by witnesses suggesting that Charles Taylor kept abreast of what was going on in Sierra Leone. The same witness who says radio reports were sent in 1998, of all events in Sierra Leone to Charles Taylor, that same witness turns around and says, at page 4729 through 4730, he did not have access to radio communication between 1997 and 2000. That is the nature of the evidence that has been presented.

    Your Honours do not have to pass on the witness's credibility; you just have to assume the truthfulness and believability of what he said. But if they are contradictory we would submit that they take it into the realm of something that is obviously incredible and obviously unreliable. The case law makes that distinction and allows you at that point to discount and disregard evidence. You can relegate it to the category of there being no evidence capable of supporting a conviction.

    Another witness testified at page 16352 through 16353 that he did not recall hearing or seeing messages containing orders or instructions from Charles Taylor or any one of his people concerning the Freetown invasion. This is a Prosecution witness commenting on the 6 January invasion of Freetown. The witness adds that at no stage did he hear anyone say Sam Bockarie had been given arms by Charles Taylor to attack Freetown. He adds not at any time did he hear anyone say - rather did he hear Charles Taylor discussing any kind of military strategy with Sam Bockarie. This is a Prosecution witness concerning the 6 January invasion of Freetown.

    Now, we recall the troops who went into Freetown were AFRC. We recall the Prosecution in it case summary suggesting as of 28 May 1997 there arose, if you will, a common purpose in the context of a joint criminal enterprise with Charles Taylor. Well, a Prosecution witness came here and spoke of Taylor's meeting with Johnny Paul Koroma, and at page 100569 through 100588 that witness says in sum and substance that Johnny Paul Koroma told the witness that Charles Taylor had said the witness and other members of the AFRC should go to Liberia. The witness met a helicopter in Foya with Sam Bockarie and Daniel Tamba inside and he was flown to Monrovia. There was a guesthouse that was owned or there was a guesthouse in which there was a radio set owned by the RUF in it; this in Monrovia. The West Side Boys arrived and they met somebody named 50. Your Honours know from the evidence witnesses have said 50 is Benjamin Yeaten. 50 was said to be the SSS and close to Charles Taylor. 50 told them about the meeting. The witness was taken to Charles Taylor's mansion. He met Charles Taylor. Charles Taylor encouraged the West Side Boys to respect the Lome Peace Accord and Charles Taylor gave Johnny Paul Koroma and Bazzy Kamara brown envelopes containing money. Charles Taylor encouraged the West Side Boys to respect the Lome Peace Accord.

    The fact that Johnny Paul Koroma, assuming if it is true, and other members of the Armed Forces Revolutionary Council go to Liberia to Charles Taylor's Executive Mansion or, for the sake of argument, even White Flower, whichever one one chooses, and Charles Taylor encourages them to respect the Lome Peace Accord, does that suffice to show evidence of a shared intent; a shared intent possessed in the context of a joint criminal enterprise, a joint criminal enterprise with the same common purpose as that which manifested itself in Libya on or about in 1988 between Foday Sankoh and Charles Taylor?

    Is it consistent with this alleged common purpose, one permutation of which was that the two men would take over the leadership of their respective countries? For Charles Taylor to extend a hand to Johnny Paul Koroma, the leader of a group which otherwise until 1997 had been in conflict with the RUF, is that not inconsistent with Charles Taylor's agreement or common plan with Foday Sankoh at a time when Foday Sankoh arguably, I believe at this time Foday Sankoh was no longer in custody, because this meeting suggests or the witness suggests this meeting took place in August of 1999.

    So you have Charles Taylor meeting with Johnny Paul Koroma, a competitor if you will, for the leadership of the government of Sierra Leone, giving them money, when Foday Sankoh was not present.

    What is interesting is the Prosecution called another witness, and I believe this person took the status of an expert witness, TF1-588, and that witness said that Charles Taylor was involved in the Lome Peace Agreement. The witness said - and this is at page 16856 through 16859 - the witness agreed that by the year 2000 Charles Taylor was the lead president within ECOWAS with responsibility for trying to resolve issues in the civil war in Sierra Leone. That is another Prosecution witness saying that Charles Taylor in some ways was positively involved - positively in this sense as in instructed, if you will - the lead president within ECOWAS with responsibility for trying to resolve issues in Sierra Leone.

    So what was the intent of Charles Taylor in meddling, if you will, accepting for the sake of argument, with these events in Sierra Leone assuming that this meeting in fact took place?

    The same Prosecution that alleges criminal objectives brings witnesses that speak of ECOWAS mandating Charles Taylor to become involved. Your Honours are obliged, we submit, to consider all of the evidence that has been presented as you consider the sufficiency or propriety of the Rule 98 standard vis-a-vis the mode of liability of joint criminal enterprise.

    Now, there is another witness that has come before the Court and spoke about an elaborate plan of sorts between Charles Taylor and Foday Sankoh. The relevant portion of the transcript is at 4804 and 4806.

    The same witness says that Foday Sankoh told the witness that he and his brother Charles Taylor were taking the war to Freetown. That is what the witness says. The temporal time frame for this, as suggested by the witness, was in 1990, not 1999 dealing with the 6 January invasion, but 1990. The witness says Foday Sankoh told the witness that he and Charles Taylor were bound together to fight. They would first fight in Liberia, then in Sierra Leone. Foday Sankoh explained to the witness how he and Charles Taylor were going to take over Sierra Leone.

    This same witness says, at page 4816 through 4818 - actually, I which draw that. At page 4958 and 4959 that she never saw or the witness never saw Charles Taylor in Sierra Leone. The witness never saw Charles Taylor in Sierra Leone. This is not a fact in dispute. I don't believe in any of their accusatory instruments or pronouncements the Prosecution has suggested anywhere that Charles Taylor set foot in Sierra Leone.

    Now, that does not mean that there is a proximity requirement in the context of the pleading of joint criminal enterprise that a co-perpetrator must necessarily be within a particular distance or geographic radius of the situs of the manifested crimes, but it is an important point to note. In all this time we are talking about Charles Taylor and his alleged interests in Sierra Leone, where witnesses one after the other come and suggest that Charles Taylor would send Benjamin Yeaten and others into Sierra Leone, not once is there any evidence showing that Charles Taylor entered the Republic of Sierra Leone to see for himself what was going on, not even to assess the alleged resources that he is said to have desired to pillage or steal.

    Let us consider another person who was in Libya when this plan manifested itself. A witness came before your Honours. The witness said that he met Charles Taylor in Libya. They met three times at Camp Mataba in the vicinity of Tripoli. He also met Foday Sankoh at this point in time, the temporal time frame being 1990. I believe I have given the relevant citation to the transcript, but I will give it again. Page 3428 through page 3432.

    The witness - the same witness - says Charles Taylor, Foday Sankoh and a Dr Manneh and their respective groups, meaning the NPFL, Foday Sankoh's RUF and the group Manneh was with, travelled to Burkina Faso. This was in 1990.

    The witness states, at page 3446 through 3447, he was told by Dr Manneh that there was a meeting in Ouagadougou Burkina Faso, formerly the Upper Volta, between Manneh, Charles Taylor and Foday Sankoh. That at this meeting it was agreed that the Gambians and Sierra Leoneans would help Charles Taylor in his war and if he succeeded then he would help the Gambians and Sierra Leoneans in their war. Pause there.

    There is another group included in the mix, the Gambians, Dr Manneh also in Libya. There is evidence alleging a meeting in Ouagadougou contemplating what in sum and substance may be deemed a common plan; the context of a joint criminal enterprise. Could it be said that Charles Taylor could be charged with crimes that occurred in Guinea, if you develop this to its proper extension?

    There has been evidence of Dr Manneh and his fighters. Could it be alleged that Charles Taylor had a common plan or purpose with Dr Manneh to commit crimes in Guinea? If you can make the same conclusion - arrive at the same conclusion - vis-a-vis Foday Sankoh, one of a number of persons Charles Taylor met in Libya, why not draw it with Dr Manneh? They are also meeting in Burkina Faso. Could the allegation be that the President of Burkina Faso at the time, I believe it was his Excellency Blaise Compaore, but perhaps he came in after 1990, but could it be alleged that at that time that person in hosting these individuals facilitated the joint criminal enterprise?

    These are said to be insurgents who went for military training in Libya, armed men, meeting in Burkina Faso. Where is the evidence about NPFL fighters going into Guinea - sorry, Gambia, The Gambia, to assist Dr Manneh? These are factors that your Honours can consider on the basis of what is on the record, in the particular context of joint criminal enterprise as a mode of liability.

    Now, our Appeals Chamber - and I think our President is in the public gallery - the President and the other Justices of the Appeals Chamber have held that where the common plan, design or purpose is not a criminal offence punishable under Articles 2, 3, 4 of the statute, it suffices if the means that is contemplated to carry out that common plan, design or purpose is a crime within the ambit of the statute. This is the AFRC appeals judgment. I believe it is paragraph 76 or thereabouts. Yes, paragraph 76. The means can suffice if it is a crime punishable under the statute.

    When you read the various permutations of the JCE allegations in this case, one possible inference is that spreading terror could be viewed as a means towards an end. For the sake of argument we waive no arguments pending before the Appeals Chamber, but let us assume that for the sake of argument. This brings us back to Count 1, terrorising the civilian population, acts of terrorism. Let us assume for the sake of argument it is a means, since our submission has so far been that the common purpose, if any, was not criminal. Well, every participant or co-perpetrator in the common plan of this joint criminal enterprise must share the same intent even with respect to the means. They must share the intent of terrorising the civilian population of Sierra Leone and what is significant in all of this is your Honours then have to look as a separate analytical exercise at the elements of the crime of acts of terrorism.

    A fundamental aspect of that crime is that the primary purpose be terror. This is separate and distinct a requirement from anything to do with joint criminal enterprise. If the crime of acts of terrorism was manifested in any other context, separate and distinct from a joint criminal enterprise, that requirement that the primary purpose be terror, when the acts or threats of violence are directed against the population or their property, that requirement doesn't change.

    So all these perpetrators or co-perpetrators in a joint criminal enterprise, for the sake of argument, with differing common purposes or plans, one person wants to become president of Sierra Leone, the other person wants to go into Freetown because they want to restore the SLAs, they all must share the intent vis-a-vis the means by which they are to facilitate their criminal enterprise, the intent of spreading terror throughout Sierra Leone and the case law has defined terror as being extreme fear.

    We take the position that these pleading requirements cannot be diluted despite the geographic scope and temporal period of the crimes alleged in this case. These are fundamental notions in criminal law in how crimes are put together and how they are pleaded and how they are proved. The evidence must touch each and every one of those elements.

    Can it be shown that the disparate actions of Charles Taylor alleged by the witnesses was coupled with the intent, the primary purpose behind them of terror, could that be said, that when he gives Johnny Paul Koroma $15,000 as alleged, that his mens rea was to facilitate a crime within the context of a joint criminal enterprise, to facilitate in particular the crime of acts of terrorism against the population of Sierra Leone, throughout Sierra Leone, no geographic limitation within the country, that was his primary purpose? When you consider the Prosecution's evidence in that light, we submit it fails. It does not pass the standard under Rule 98.

    There is another mode of liability under Article 6.3, superior criminal responsibility. That mode of liability is manifested in the indictment in paragraph 34 and here the Prosecution alleges that Mr Taylor is responsible in addition or alternatively pursuant to Article 6.3, it reads:

    "The accused, while holding positions of superior responsibility and exercising command and control over subordinate members of the RUF, AFRC, AFRC/RUF Junta or alliance, and/or Liberian fighters, is individually criminally responsible for the crimes referred to in Articles 2, 3, 4 as alleged in the indictment. The accused is responsible for the criminal acts of his subordinates in that he knew or had reason to know that the subordinate was about to commit such acts or had done so and the accused failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof."

    That is in sum and substance the core of Article 6.3 of the statute. Interestingly, in the particulars of the various counts in the indictment, the Prosecution uses the phrase "under the direction and/or control of and/or subordinate to the accused". This is used in paragraph 5 in the particulars. This is used in paragraph 9 in the particulars. This is used in paragraph 18 in the particulars. It is also used in paragraph 23 in the particulars, as well as in paragraph 22. This is the whole notion of command and control, or command responsibility.

    Now, again the legal requirements apply. There is the notion of effective control. To suggest that someone has the power to prevent the acts of a subordinate or to punish them they must have an element of control. The case law uses the phrase in the context of a superior that is not a military person, and that would be Charles Taylor, as a civilian President of Liberia, that their de facto exercise of control or authority, it must be accompanied with the trappings of the exercise of the de jure authority and this is important.

    I will cite the Bagilishema trial judgment at paragraphs 40 through 42. There is also the Celebici case, the Delalic case, and I see that I don't have the paragraph citation to that, but we can find it. Well, we have cited Bagilishema in any event and we will look for Delalic. The accused must have a material ability to prevent or punish the criminal conduct. This is the essence of effective control. So when you hear evidence of Superman disobeying orders and going off somewhere in Sierra Leone and undertaking an offensive not authorised by the leadership of the RUF, assuming for the sake of argument that the Prosecution has shown a relationship between Charles Taylor and the RUF, in that context would Charles Taylor have a material ability to prevent or punish the criminal conduct of Superman?

    Mind you, this criminal conduct, like all other acts or omissions, must be one punishable under the statute. We submit that when you apply these legal principles to the unique facts that each witness testifies about, more often than not you will not find that the facts are sustainable. You will often find the lack of an effective ability to prevent or punish any of these crimes.

    There is also the element that the Prosecution would have to show that Charles Taylor was aware of these offences. It is not enough in our submission to say that because it is reported in the media that somewhere in Kailahun civilians were killed, that Charles Taylor from that should deduce that somewhere else in Masiaka civilians were being killed. For these allegations the Prosecution has to show that for each and every one of these events that he is supposedly unable or unwilling, rather unwilling to prevent or punish, that he had knowledge of them, that he knew of them, what specifically manifested themselves on the ground and that these events were crimes punishable under the statute.

    Let us consider an example that someone might say suggests he had some control. A witness testified that peacekeepers belonging to ECOMOG were captured by the RUF. This is at page 2029. The witness says this is when Sam Bockarie was in charge the RUF captured 11 ECOMOG peacekeepers. Yeaten told Sam Bockarie to release them.

    This on its face would suggest that Charles Taylor had some measure of authority over the RUF. There is also evidence by the same witness, on page 2029 and 2031, that Charles Taylor instructed Issa Sesay, when Issa Sesay was in charge, to release Kenyan and Zambian peacekeepers. It is said that Issa Sesay relayed the news to commanders in Makeni.

    Well, the Prosecution called another witness, TF1-588, who said at page 16856, that is 16856 through 16859, that in 2000 Kofi Annan, then Secretary-General of the United Nations had asked Charles Taylor to play a part in resolving the UN peacekeepers' hostage taking. So you have the President of Liberia being asked by the Secretary-General of the United Nations, Liberia was a founding member of the United Nations, Kofi Annan asking Charles Taylor to play a part in resolving the UN peacekeepers' hostage taking.

    The witness went on to say that Charles Taylor was in a dilemma, that the more Charles Taylor acted as an intermediary outside powers, especially the United States and Great Britain, would say that Charles Taylor held sway over the rebel movement in Sierra Leone and would stress the connection he had. If he did not act, the witness said that Charles Taylor would be blamed for his obstructive role. He cannot win. Secretary-General is saying "Get involved. Help us get this UN hostage peacekeepers out." Witnesses are saying he was intermeddling to the degree of exercising control over the RUF.

    None of this comes from a Defence witness, all from Prosecution witnesses, and we submit that when you weigh such evidence, believing all the different versions to be true for the sake of argument, that your Honours will come to the conclusion that within the context of Rule 98 such evidence is not capable of sustaining or supporting a conviction.

    Now, we have gone through the different modes of liability and again I stress - I emphasise - this is a case about the degree of Charles Taylor's responsibility, his participation. It is not a case about what crimes occurred in Sierra Leone. It is not a case about the gravity of those crimes. It is a case of methodically and meticulously going element by element, crime by crime, element by element vis-a-vis each of the seven modes of liability, planning, instigating, ordering, committing, aiding and abetting in the planning, preparation and execution, joint criminal enterprise, Article 6.3 superior responsibility, each and every one of those elements, when you consider those modes of liability, each and every one of the counts in this indictment fails. It fails at this juncture of the case midway through and assuming for the sake of argument the case proceeds beyond this point it will fail. May I have a moment, Mr President?

  • Yes, Mr Anyah.

  • Thank you. I made a reference to the Celebici judgment, the Delalic judgment and a particular paragraph for the proposition that the exercise of de facto authority by a civilian leader must be accompanied by the trappings of the exercise of de jure authority. The relevant paragraph is 378 of Delalic.

    Your Honours, we do not invite your Honours to engage in a legally prohibited reasoning at this stage on assessing credibility of witnesses. Nonetheless, where in the plain black and white of an approved transcript that evidence is so rife by contradictions internally, and so inconsistent with other incontrovertible facts, that it can be properly regarded as being incredible, you have the judicial discretion even at this stage to reject the evidence.

    I began as your Honours convened at 9.30 and I reckoned I would not go through 1.30 and this concludes my presentation and all that is left is for me to thank you for your attention.

  • Yes, thank you, Mr Anyah. Now, Ms Hollis, the Prosecution of course is entitled to a reasonable time to respond to the Defence submissions.

  • Mr President, we would ask that we be allowed to respond Thursday morning. That is the 9th, I believe.

  • All right. Well, I gather that doesn't cause any problem to the Defence?

  • For me, Mr President, personally I will be able to attend the proceedings on Thursday, but I had already obtained leave from our trial team in relation to - well, Friday is a holiday I believe, so we are all off on Friday. Then I am on safe grounds. Thank you.

  • All right. Thank you, Mr Anyah. Thursday morning, 9 April, Ms Hollis. I think you appreciate that you will be on the same time limit as the Defence was to conclude your submissions by 1.30 at the latest.

  • Yes, Mr President, we understand that.

  • All right, thank you. Well, we will adjourn this case until Thursday, that is this Thursday, 9 April, at 9.30 to hear the Prosecution response to the Defence submissions pursuant to Rule 98.

  • [Whereupon the hearing adjourned at 12.55 p.m. to be reconvened on Thursday, 9 April 2009 at 9.30 a.m.]