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

  • [Open session]

  • [In the absence of the accused]

  • [Upon commencing at 9.05 a.m.]

  • Good morning. I'll take appearances. Before I do so, I note the absence of the accused. However, I will invite the Principal Defender to address us on that issue when I take appearances. Please, Ms Hollis.

  • Good morning, Madam President, your Honours, opposing counsel. This morning for the Prosecution, Brenda J Hollis, Nicholas Koumjian, Mohamed A Bangura, Christopher Santora, Leigh Lawrie. We are also joined by the chief of prosecutions, James Johnson, and today with us also is our case manager, Maja Dimitrova.

  • Thank you, Ms Hollis. Ms Hanciles.

  • I appear for the Office of the Principal Defender this morning.

  • Thank you.

    I'm not sure if LiveNote is working properly. I appear to have some record but not all, but Madam Court Manager you can alert us if there is a problem, please. Ms Hanciles, I apologise for interrupting you. I note the accused is not present in court.

  • I have no information as to why the accused is not in court, your Honour, this morning.

  • Ms Hanciles, yesterday I addressed you in the capacity of duty counsel following the deliberate absenting of himself and withdrawal by Mr Griffiths, lead counsel. I note you make your appearance this morning as representing the principal defender. However, the direction of the Court yesterday was for your appearance as duty counsel and we were grateful for your very quick response to that. But for purposes of record, I don't think you can say you're representing the Principal Defender. You are the Principal Defender -

  • The Office of Principal Defender, your Honour.

  • But the Office of Principal Defender is an organ within the Court; it's not a party to the proceedings and therefore I consider that your appearance today is in the capacity of duty counsel as directed by the Court.

  • And I will now revert to what you've already informed us which is that you have no knowledge of the reason for the absence of Mr Taylor here. I can only guess that he has not been brought to the Court from the detention centre, and in the past we have been informed, usually through a note, if there is a reason for that. I would be grateful if you could check with the security if such a note has been delivered.

  • Yes, your Honour.

    Your Honour, if you'll excuse me again I -- just a quick confirmation from within the well of the Court and I am informed that there is no information. They were just informed that he was not going to be brought today.

  • Thank you. I will then note that Mr Taylor has opted not to come because we have not been given, for example, the medical note that we have seen in the past, and accordingly, I will rule that pursuant to Rule 60, the matter will proceed.

  • [Trial Chamber confers]

  • Did you wish to say something?

  • No, your Honour, I thought you wanted to address me. May I sit, your Honour?

  • I beg your pardon?

  • Yes. Just to ensure that we are all aware that you're here in that capacity, and you have a duty upon you to represent the interests of the accused.

    When we adjourned yesterday, I had indicated there was a possibility that some of my learned colleagues may have questions of the Prosecution, and before inviting any address by the Defence, those would be dealt with. And I will now clarify if there are questions.

    Justice Sebutinde has a couple of questions, I understand.

  • My questions are directed to the head of the Prosecution team, Ms Hollis. And really they arise out of your final trial brief. The first two questions relate to counts 1 and 11, namely the count on terror and the count on pillage.

    Now, these two counts, as you know, arise out of violations of Additional Protocol II to the Geneva Conventions, now, which crimes arise out of a non-international armed conflicts, according to Additional Protocol II. That is one side. What I did notice from your final trial brief is that the Prosecution did not characterise the nature of the armed conflict per se in your final trial brief, and the reasoning continues in this way: The Prosecution submits that the accused is criminally responsible for crimes pursuant to Article 6(3) of the Statute which in effect means that he had effective control over the members of the RUF who committed crimes in Sierra Leone.

    Now, this obviously would have an impact on the nature of the armed conflict. In other words, according to the Tadic jurisdiction decision, the overall control of one state over an armed opposition group of another state, internationalises the armed conflict. And so my question is: What consequences would such a conclusion have on the overall control of - or the alleged overall control of the accused over the RUF on the count - count 1 on terror and count 11 on pillage. That's my first question. And perhaps I'll pause before I pose my second question. If you haven't understood, I could repeat the question.

  • I do very well, I do very well. Thank you, Justice Sebutinde. And your Honours, may the Prosecution address one matter before I address your question, with leave of the Court? And that is, the Prosecution, of course, is mindful that it is for your Honours to determine how to proceed and we are not questioning that. We do, however, have what we think is an unanswered question in relation to Mr Taylor's absence this morning. And that is that we were informed yesterday that he left because he was ill, and we wonder if there should not be a doctor's report to ensure that his absence is truly voluntary and not because he is ill.

    We are hesitant to move forward in any substance if indeed Mr Taylor is ill and there has simply been some administrative oversight that has precluded your Honours from being given notice of that. And I simply raise that as a matter for your Honours to consider to ensure that there are no administrative issues that might impact the integrity of today's proceedings.

  • Thank you for that observation, Ms Hollis. I did ask Ms Hanciles if there is a medical report because we have seen such reports in the past when Mr Taylor has been unwell and has sought - been unable to come to court. I understand that that's a procedure within the detention. I have not seen anything in writing to confirm that. I've been told that there is no such note. However, I will consult with my colleagues to see a way forward and to answer your question.

  • [Trial Chamber confers]

  • Ms Hollis, I am grateful for you putting on record those concerns. Yesterday, Mr Griffiths indicated in his submissions to the Court that he and his client would be leaving the Court, and Mr Taylor absented himself following the first break in the proceedings. As I've already noted there has not been any documentation to support an indication that he is unable to come for reasons of illness or other pertinent issues, and therefore, in our view, there is no evidence to support any view that he may be unable to come through sickness or otherwise. And in the circumstances, the ruling that I've made that we proceed pursuant to Rule 60 will stand.

  • Just one other thing I'd mention, that Mr Taylor does not go unrepresented today. There is duty counsel there as well, Ms Hollis, in case you still have some misgivings.

  • Not at all, Justice Lussick, thank you very much, your Honours. In response to Justice Sebutinde's question, of course when we look at the Statute, Article 3 covers both violations of Common Article 3 as well as Additional Protocol II and Common Article 3, of course, applies regardless of the characterisation of the conflict. And so these crimes would be applicable whether you would consider this conflict to be internal or international. Also the jurisprudence indicates that a conflict can be both internal and international at the same time. In addition to that, we would suggest that what we have in this instance is not a state, as we had in the case of Prosecutor v Tadic, it's not the instance of a state being involved in another country. What we have is an instance of this accused who was the President of Liberia, but used his powers in a way that was not sanctioned by the state. And, indeed, used portions of the state mechanism, if you will, but not in a way that was sanctioned by the state.

    So that what we have here is Mr Taylor using his Liberian subordinates and misusing the power of his office and his authority in Liberia in order to become a part of, assist and continue the campaign of terror and the pillage that occurred in Sierra Leone. So we believe that our Statute does allow us to proceed on these charges. Even should your Honours, as I say, come to the conclusion that indeed it was the state of Liberia instead of Mr Taylor and his rogue elements who were engaged in this conduct with his proxy forces in Sierra Leone. That because of Article 3, nonetheless, this - of Common Article 3, nonetheless Article 3 crimes would apply and that would be, Madam Justice Sebutinde, how we would respond to that question.

  • Ms Hollis, you've fallen short of characterising the nature of the armed conflict according to the Prosecution. There is no doubt that the judges will find what they will find, but still, you fall short of saying this is how the Prosecution characterises the conflict in Sierra Leone vis-a-vis the participation of the accused.

  • All right. I have set out what I think the law has to say about whatever the characterisation is. In our view, in the view of the Prosecution, the conflict in Sierra Leone was not of an international character because Mr Taylor was acting independent and in violation of his duties as President of Liberia. And those elements within the government and within the country that he used to further his conduct in Sierra Leone were also in violation of their duties in Liberia. We do not characterise the Government of Liberia as having been involved in the conflict in Sierra Leone. Of course, before he became President, he was the head of the NPFL, a faction, and the question does not arise. During his presidency that is how we would characterise the conflict. And nonetheless, if others would differ on that characterisation, Article 3 in our view would still apply, and make these crimes those for which he could be held accountable.

  • Thank you for that clarification. My second and last question relates to the phenomenon of joint criminal enterprise as pleaded in your final trial brief. In comparison to the notion as contained in the Trial Chamber's decision of 27 February 2009, which was upheld by the Appeals Chamber. In that decision, we held that the common purpose - the joint criminal purpose, sorry, the joint criminal enterprise, or the common purpose of the RUF was to terrorise the civilian population, period. And this was upheld by the Appeals Chamber. Now, in comparison, in paragraph 574 of your final trial brief, this is what you write, and I quote:

    "The ultimate objective of the JCE was to forcibly control the population of the territory of Sierra Leone -- the population and territory of Sierra Leone, and to pillage its resources, in particular, diamonds."

    Now, the elements that you put forward in paragraph 574 are at variance with what the Appeals Chamber has upheld. Could you please comment on this discrepancy?

  • Thank you, Madam Justice. We do not view that as a discrepancy because we believe, when you look at joint criminal enterprise, you look at, depending on the facts of the case, you look at two different elements. You look at the ultimate objectives, and we suggest to you that in this case Mr Taylor, the RUF, and the AFRC/RUF alliance, all agreed to the ultimate objectives. The ultimate objectives being forcibly to control the population and territory of Sierra Leone and the pillage of its resources, in particular diamonds, as Madam Justice has indicated. So there is the element of what are the ultimate objectives. And then there is the consideration of what are the criminal means by which those ultimate objectives are to be reached. And there was a focus on the criminal means by which the ultimate objectives were to be reached, in our view. And the criminal means by which the objectives were to be reached - and which we believe the evidence proves overwhelmingly - Mr Taylor and the other members of the JCE agreed to and participated in. The criminal means were terror and the attendant crimes that we have charged.

    So in our view the analysis of joint criminal enterprise looks at ultimate objectives, which we have discussed, as well as the criminal means by which to achieve those objectives. What must most certainly be clear is that the accused, and the others, must agree and participate in the criminal means if the objectives themselves are not criminal. We believe the evidence here proves that the accused and the other members of the JCE agreed and participated in the criminal means but they also agreed as to the ultimate objectives. And in our view, pillage is also a criminal offence, so that one of the ultimate objectives to which they agreed was also a crime. So that is how we would respond to that question, Madam Justice.

  • Thank you, Ms Hollis, that really does clarify things for me. And I thank you. It's been helpful.

  • Thank you, Ms Hollis, we have no other questions arising from your submissions yesterday.

  • And I'm grateful for the clarifications.

  • Thank you, Madam President. Thank you, your Honours.

  • Ms Hanciles, as you're aware, today was set for, and I quote, "the Defence to present its oral arguments." There are arguments relating to Rule 86 which I will not go into until I hear anything you wish to say in your capacity as representing the accused.

  • Well, the counsel who were assigned this in this matter are still counsel on record and they have not withdrawn from the matter. They have only withdrawn their participation at this stage and that is what lead counsel has informed me. So they are still counsel on record and as such, I am here as duty counsel to only hold sway and take any directives from the Court. And I am informed that they have filed an application for leave this morning of the decision which denied the - their final trial brief. Thank you.

  • [Trial Chamber confers]

  • Can I please put on record that we have just been presented with a document which, it states, that Mr Taylor has waived his right to be present. I can only guess it's come from the detention centre although it's not headed in that way, thereby confirming that there is not a medical or other issue.

  • [Trial Chamber confers]

  • In the light of this document, and in the light of Mr Griffiths's statement yesterday that he was not coming to court, and the indication from duty counsel, Ms Hanciles, that she has no instructions relating to today's appearances by the Defence, we are of the opinion that this matter, by majority, that this matter should be stood over to 11.30 on Friday, in view of the original order of the 22nd of October 2010, that the Prosecution may present oral arguments in rebuttal and the Defence may present oral arguments in rebuttal. Ms Hollis, you will note that I have said 11.30 which is the time set for Defence. However, I do so in the light of the fact that there are no arguments before you to rebut. If that changes, I will review this decision.

    Just a moment, please.

  • [Trial Chamber confers]

  • I will adjourn the Court now until Friday at 11.30. Please adjourn court.

  • [Proceedings adjourned at 9.38 a.m., to be reconvened on Friday, 11 February 2011, at 11.30 a.m.]