Thank you. Well, our first business today is to deliver our decision on the Defence Rule 98 motion. The Trial Chamber is seized of a Defence motion for judgment of acquittal pursuant to Rule 98 of the Rules of Procedure and Evidence. Pursuant to this rule the Trial Chamber is bound to deliver our decision, including our reasons, orally. I will therefore read the Trial Chamber's decision in full.
A brief procedural history is as follows. The Prosecution rested its case on 27 February 2009. On the same day the Defence notified the Trial Chamber that it intended to move for a judgment of acquittal under Rule 98. The Trial Chamber heard oral submissions on the motion from the Defence on 6 April 2009 and the Prosecution presented its response on 9 April 2009 after which the Trial Chamber adjourned to consider the matter. The Trial Chamber informed the parties that it would deliver its decision on 4 May 2009, which is today. In reaching its decision, the Trial Chamber has considered all the submissions of the parties and all of the evidence before it.
The Trial Chamber will first give a brief summary of the submissions of the parties. The Defence moves the Trial Chamber to acquit the accused on each and every count in the second amended indictment. It raises issues with regard to the standard of review applicable to Rule 98 and the law that applies to the offences alleged in the indictment.
While not contesting the crime base evidence the Defence challenges the quality of evidence, or lack thereof, with regard to each element of the modes of liability linking the accused to the alleged offences.
The Defence submits that the evidence presented by the Prosecution linking the accused to the crimes alleged in the indictment is not capable of sustaining a conviction, even if believed. The Defence also notes inconsistencies and contradictions in the evidence presented by the Prosecution.
In its response, the Prosecution opposes the motion on all grounds presented by the Defence and requests the Trial Chamber to dismiss it. It submits that it has led evidence capable of supporting a conviction on each and every count of the indictment.
The parties provided further submissions on particular issues which the Trial Chamber will address in detail in the body of the decision that follows.
We deal now with the standard of review in relation to Rule 98. Rule 98 sets out the applicable legal standard when reviewing a motion for judgment of acquittal. It provides that:
"If, after the close of the case for the prosecution, there is no evidence capable of supporting a conviction on one or more counts of the indictment, the Trial Chamber shall, by oral decision and after hearing the oral submissions of the parties, enter a judgment of acquittal on those counts."
This Trial Chamber has previously held in the case of Prosecutor v Brima and others, otherwise known as the AFRC case, that the test to be applied when considering a motion under Rule 98 is whether there is evidence, if accepted, upon which a reasonable tribunal of fact could be satisfied beyond reasonable doubt of the guilt of the accused on the particular charge in question. The Trial Chamber must assume that the Prosecution's evidence is entitled to credence, unless incapable of belief.
Accordingly the object of the enquiry is not to make determinations of fact having weighed the credibility and reliability of the evidence, rather it is simply to determine whether the evidence, assuming that it is true, could not possibly sustain a finding of guilt beyond reasonable doubt. That will only be the case where there is no evidence whatsoever which is probative of one or more of the required elements of a crime charged, or where the only such evidence is incapable of belief.
To be incapable of belief, the evidence must be obviously incredible or unreliable. The Trial Chamber should not be drawn into fine assessments of credibility, or reliability. Needless to say a finding that the evidence is not obviously incredible does not foreclose the Trial Chamber at the end of the trial from finding that the evidence is, in fact, neither credible nor reliable.
In applying the above mentioned test, it is not necessary under the rule for the Trial Chamber to enquire into the sufficiency of the evidence in relation to each paragraph of the indictment. There is no need at the Rule 98 stage to examine whether each paragraph of the indictment is supported by the Prosecution evidence. Rather, the evidence should be examined in relation to the counts. Rule 98 requires the Trial Chamber to determine only whether there is no evidence capable of supporting a conviction on one or more counts of the indictment and to enter a judgment of acquittal on those counts.
The essential function of the rule was stated by the ICTY in the cases of Strugar and Hadzihasanovic. The Trial Chambers in those cases observed as follows:
"It is worth noting the extent and frequency to which Rule 98 bis has come to be relied on in proceedings before this tribunal and the prevailing tendency for Rule 98 bis motions to involve much delay, lengthy submissions and therefore an extensive analysis of evidentiary issues in decisions. This appears to be in contrast to the position typically found in common law jurisdictions from which the procedure is derived. While Rule 98 bis is an important procedural safeguard, the object and proper operation of the rule should not be lost sight of. It's essential function is to separate out and bring to an end only those proceedings in respect of a charge for which there is no evidence on which a Trial Chamber could convict, rather than to terminate prematurely cases where the evidence is merely weak."
The indictment charges in paragraph 33 that:
"The accused, by his acts or omissions, is individually criminally responsible pursuant to Article 6.1 of the Statute for the crimes referred to in Articles 2, 3 and 4 of the Statute which crimes the accused planned, instigated, ordered, committed, or in whose planning, preparation or execution the accused otherwise aided and abetted, or which crimes amounted to or were involved within a common plan, design or purpose in which the accused participated, or were a reasonably foreseeable consequence of such common plan, design or purpose."
In addition, or alternatively, under paragraph 34 of the indictment the accused is charged with individual criminal responsibility under Article 6.3 of the Statute.
In deliberating upon this motion, the Trial Chamber has examined the Prosecution evidence in its entirety. Where specific evidence is cited in this oral decision, this is done for illustrative purposes and should not necessarily be taken as an exhaustive listing.
We come now to the law on the modes of liability charged in the indictment. Rule 98 does not require that the Trial Chamber be satisfied that there is evidence supporting each of the individual allegations making up the counts of the indictment. Thus, where as in the present case the accused is charged under multiple modes of liability, it is sufficient if there is evidence capable of supporting a conviction on the basis of one of those modes of liability.
The parties made submissions on the law in relation to the modes of liability charged in the indictment. The Trial Chamber finds these submissions to be generally consistent with established jurisprudence of the Special Court for Sierra Leone and the ad hoc international tribunals which this Chamber considered in the AFRC case. For the purpose of this decision, we will here state our opinion in this regard.
We deal firstly with the mode of commission through participation in a joint criminal enterprise. An accused may be found to have committed a crime through participation in a joint criminal enterprise. The actus reus of joint criminal enterprise liability comprises three elements: (1) a plurality of persons; (2) the existence of a common plan, design or purpose which amounts to or involves the commission of a crime provided for in the Statute; and (3) participation of the accused in the common plan, design or purpose involving the perpetration of one of the crimes provided for in the Statute.
The mens rea requirements for liability under the basic and extended forms of joint criminal enterprise which are pleaded in the indictment against the accused in this case are not the same.
In the basic category of joint criminal enterprise the accused must intend to perpetrate a certain crime, this being the shared intent on the part of all co-perpetrators.
The mens rea for the extended category of joint criminal enterprise is twofold. In the first place the accused must have had the intention to take part in and contribute to the common purpose. In the second place, responsibility under the third category of joint criminal enterprise for a crime that was committed beyond the common purpose of the joint criminal enterprise, but which was a natural and foreseeable consequence thereof, arises only if the Prosecution proves that the accused had sufficient knowledge that the additional crime was a natural and foreseeable consequence to him in particular.
The accused must also know that the crime which was not part of the common purpose, but which was nevertheless a natural and foreseeable consequence of it, might be perpetrated by a member of the group or by a person used by the accused or another member of the group.
The accused must willingly take the risk that the crime might occur by joining or continuing to participate in the enterprise. The Trial Chamber can only find that the accused has the requisite intent if this is the only reasonable inference on the evidence.
Planning. Planning implies that one or several persons contemplate designing the commission of a crime at both the preparatory and execution phases. Responsibility is incurred when the level of the accused's participation is substantial, even when the crime is actually committed by another person. The actus reus requires that the accused, alone or together with others, designed the criminal conduct constituting the crimes charged. It is sufficient to demonstrate that the planning was a factor substantially contributing to such criminal conduct.
The mens rea requires that the accused acted with direct intent in relation to his own planning, or with the awareness of the substantial likelihood that a crime would be committed in the execution of that plan. Planning with such awareness has to be regarded as accepting that crime.
Instigating. Instigating means prompting another to commit an offence. The actus reus requires that the accused prompted another person to commit the offence and that the instigation was a factor substantially contributing to the conduct of the other person or persons committing the crime.
The mens rea requires that the accused acted with direct intent, or with the awareness of the substantial likelihood that a crime would be committed in the execution of that instigation.
Ordering. The actus reus of ordering requires that a person in the position of authority uses that authority to instruct another to commit an offence. No formal superior/subordinate relationship between the accused and the perpetrator is necessary. It is sufficient that the accused possessed the authority to order the commission of an offence and that such authority can reasonably be inferred.
The mens rea for ordering requires that the accused acted with direct intent in relation to his own ordering, or with the awareness of the substantial likelihood that a crime will be committed in the execution of that order.
Aiding and abetting. The actus reus of aiding and abetting requires that the accused gave practical assistance, encouragement or moral support which had a substantial effect on the perpetration of a crime. Aiding and abetting may be constituted by contribution to the planning, preparation or execution of a finally completed crime. Such contribution may be provided directly, or through an intermediary, and irrespective of whether the participant was present or removed both in time and place from the actual commission of the crime.
The mens rea required for aiding and abetting is that the accused knew that his act would assist the commission of the crime by the perpetrator, or that he was aware of the substantial likelihood that his acts would assist the commission of a crime by the perpetrator. However it is not necessary that the aider and abetter had knowledge of the precise crime that was intended and which was actually committed, as long as he was aware that one of a number of crimes would probably be committed including the one actually committed.
Individual criminal responsibility pursuant to Article 6.3 of the Statute. Article 6.3 provides:
"The fact that any of the acts referred to in articles 2 to 4 of the present Statute was committed by a subordinate does not relieve his or her superior of criminal responsibility if he or she knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior had failed to take the necessary and reasonable measures to present such acts or to punish the perpetrators thereof."
Article 6.3 thus requires a three-pronged test for criminal liability to attach: (1) the existence of a superior/subordinate relationship between the accused as superior and the perpetrator of the crime; (2) the accused knew or had reason to know that the crime was about to be or had been committed; and (3) the accused failed to take necessary and reasonable measures to prevent the crime or punish the perpetrators thereof.
The scope of Article 6.3 not only includes military commanders, but also political leaders and other civilian superiors in possession of authority.
The Trial Chamber will now turn to specific preliminary issues raised by the Defence.
The Defence submits that any evidence adduced of crimes committed in a location with a name that did not precisely match a location pleaded in the indictment should not be considered by the Trial Chamber. The Defence therefore requests that such locations should be struck out.
The Prosecution in response argues that the Defence submission must fail as Rule 98 requires the Trial Chamber to make findings on the counts in the indictment and not on specific particulars.
The Trial Chamber recalls its finding at paragraph 25 of the AFRC Rule 98 decision that it would not be appropriate or desirable to strike out the names of such locations given that a variety of languages and dialects are spoken in Sierra Leone and that some witnesses are illiterate. Thus names of locations mentioned by witnesses which are similar but not identical to names of locations that appear in the indictment may refer to the same location. Furthermore, the Defence had ample opportunity to raise any doubts regarding such matters through cross-examination.
For the foregoing reasons, the Trial Chamber considers that it is not an appropriate or desirable remedy to strike out the names of these locations. The Trial Chamber will, at the appropriate time, review all the evidence to determine whether a witness and the indictment are referring to the same location despite minor spelling discrepancies.
The Defence also submits that the Prosecution did not adduce evidence of any acts of burning in Goderich, Kent or Grafton in the Western Area and requests the Trial Chamber to strike out those locations. The Prosecution contests the absence of evidence of acts of burning in the locations submitted by the Defence and provides references to evidence in support of its assertion.
However, the Trial Chamber in keeping with our ruling in paragraph 21 of the AFRC Rule 98 decision, holds that we are not empowered by Rule 98 to break down a count to its particulars supplied in the indictment and then to enter a judgment of acquittal in respect of any particular which has not been proved, nor would it be practicable to do so. The Trial Chamber therefore rejects this Defence submission.
The Trial Chamber will now consider the chapeau requirements. The Trial Chamber notes that the accused is charged with three types of crime provided for in the Statute of the Special Court: crimes against humanity under Article 2 of the Statute; serious violations of Article 3 common to the Geneva Conventions and of additional Protocol II pursuant to Article 3 of the Statute; and other serious violations of international humanitarian law under Article 4 of the Statute. For the purposes of this decision, we will refer to the latter two categories of crimes as war crimes.
In order to secure a conviction, the Prosecution must prove the underlying offences, the general requirements of crimes against humanity or war crimes - sometimes referred to as the chapeau requirements - and the accused's individual responsibility.
The offences charged in this indictment are acts of terrorism at Count 1; murder at Counts 2 and 3; rape at Count 4; sexual slavery at Count 5; outrages against personal dignity at Count 6; cruel treatment at Count 7; physical violence as an other inhumane act at Count 8; conscripting or enlisting children under the age of 15 into armed forces or groups, or using them to participate actively in hostilities, at Count 9; enslavement at Count 10; and pillage at Count 11.
The Trial Chamber notes that the Defence has not, at least for the purpose of this motion, challenged the sufficiency of the evidence in relation to the chapeau requirements for crimes against humanity and war crimes. Nevertheless, for the purposes of this Rule 98 decision the Trial Chamber recalls the evidence of numerous Prosecution witnesses who have testified as to attacks directed against civilians which fall within the scope of the indictment. Furthermore, the Trial Chamber recalls that it has taken judicial notice of an armed conflict on the territory of Sierra Leone also falling within the scope of the indictment.
The Trial Chamber is satisfied, based upon a review of all the evidence available, that there is evidence capable of supporting a finding that the chapeau requirements of crimes against humanity and war crimes have been met.
The Defence did not take issue with the crime base evidence led by the Prosecution and restricted its arguments to the quality and sufficiency of the linkage evidence, or lack thereof, and in particular to the lack of evidence going to the modes of liability. Accordingly, the Trial Chamber will restrict its review of the evidence to those areas.
The Trial Chamber will now turn to a consideration of the individual criminal responsibility of the accused in relation to Counts 1 through 11 of the indictment.
The Defence argued that there was no evidence linking the accused to the crimes committed under any of the modes of liability pleaded by the Prosecution.
The parties took different approaches to the evaluation of the sufficiency of the evidence with regard to the modes of liability. The Defence made submissions on the modes of liability of planning, committing, instigating, ordering and aiding and abetting before turning to joint criminal enterprise which it submitted is "the backbone of this case. This is what the case amounts to."
The Defence completed its oral submissions by an evaluation of the evidence adduced so far in relation to superior criminal responsibility and concluded that there was no evidence capable of supporting a conviction on any count and asked the Trial Chamber to deliver a judgment of acquittal on all counts.
The Prosecution submitted that, should the Trial Chamber determine that there is evidence which could support a conviction on a count on the basis of any one of the alleged forms of liability, there is no need for the Trial Chamber to also examine the other forms of liability in respect of that count.
It presented jurisprudence from several cases at the ICTY in support of this approach, namely the decisions on Rule 98 bis in the cases of Prosecutor v Martic, Prosecutor v Mrksic, Prosecutor v Milutinovic and Prosecutor v Prlic.
Following this approach, the Prosecution set out the evidence it alleged is capable of supporting a conviction on all counts of the indictment based on the accused's participation in a common plan design or purpose, the mode of liability also referred to as joint criminal enterprise.
Although it maintained that there was no need to do so, the Prosecution then went on to also set out evidence which it suggested is capable of supporting a conviction under other modes of liability, namely aiding and abetting, planning, instigating, ordering and superior responsibility.
The Trial Chamber agrees with the Prosecution that it is not necessary for the purposes of Rule 98 to evaluate the sufficiency of the evidence in relation to each mode of liability and that it is sufficient if there is evidence capable of supporting a conviction on the basis of one of those modes.
Dealing firstly with commission through joint criminal enterprise, both parties have highlighted the centrality of joint criminal enterprise responsibility to this case and, as mentioned, the Prosecution argues that there is evidence capable of supporting a conviction against the accused on each and every count of the indictment based on his participation in a joint criminal enterprise. Therefore, the Trial Chamber will consider the sufficiency of the evidence in relation to this mode of liability.
In summary the Defence submitted that the Prosecution led no evidence to support the participation of the accused in either the basic or the extended form of joint criminal enterprise and, in particular, that there is no evidence of a common plan, purpose or design between the accused and other co-perpetrators, nor is there evidence of a shared intent to have existed between the co-perpetrators throughout the indictment period. The Prosecution disagrees.
The Trial Chamber recalls its decision on the urgent Defence motion regarding a fatal defect in the Prosecution second amended indictment relating to the pleading of JCE of 27 February 2009, in which we held that the second amended indictment satisfied the requirements for the pleading of joint criminal enterprise in that it charged the accused with participating along with others, namely members of the RUF, AFRC, RUF/AFRC junta or alliance and/or Liberian fighters, in a campaign to terrorise the civilian population of Sierra Leone between 30 November 1996 and 18 January 2002 and that the crimes charged in the indictment were part of a campaign of terror, or were a reasonably foreseeable consequence thereof. The nature of the accused's participation in the criminal enterprise was also narrated in paragraph 74 of that decision.
We come now to the Trial Chamber's findings on commission through a joint criminal enterprise. As set out in the applicable law above, the elements of this mode of liability are the existence of a common purpose, a plurality of persons, the participation of the accused and the requisite mens rea.
As to existence of a common purpose to terrorise, the Trial Chamber finds that there is evidence capable of supporting a finding of the existence of this common purpose. The Trial Chamber refers to inter alia the evidence of witness TF1-532 that the accused and Sam Bockarie, in planning to recapture territory across Sierra Leone, agreed to make operations fearful, and on the evidence of witness TF1-371 who testified that the accused was involved in planning Operation No Living Thing. During these operations, crimes set out in the indictment were systematically committed against the civilian population.
The Prosecution has adduced evidence that the common purpose to terrorise the civilian population existed from the pre-indictment period. Witness TF1-045, testified that in 1994 the accused was involved in a plan to terrorise civilians at Sierra Rutile so that the RUF could take control of the area. Witness TF1-532 testified that in 1996 the accused approved a plan by Foday Sankoh to terrorise civilians in order to discourage them from participating in the elections.
In addition, there is evidence that individuals associated with the accused shared the common purpose to terrorise the civilian population. Inter alia, Witness TF1-334 testified that child soldiers were sent to amputate civilians in order to terrorise them. Witness TF1-360 testified that Sam Bockarie ordered his fighters to make Kono fearsome, meaning to burn down houses and kill civilians. TF1-367 testified that at Guinea Highway Issa Sesay ordered that Operation Free Sankoh should be a fearful operation.
The Trial Chamber is further satisfied that during the campaign to terrorise the civilian population civilians were killed, raped, forced into sexual slavery, subjected to physical violence, including amputations and mutilation, and were abducted and forced into labour. The Trial Chamber is similarly satisfied that children participated actively in hostilities and that civilian property was pillaged.
Taken together, the Trial Chamber finds that there is evidence on which it could find that the accused and others shared a common purpose to take part in a campaign to terrorise the civilian population of the Republic of Sierra Leone.
We come now to the element of plurality of persons. The Prosecution has adduced evidence that a number of individuals who were associated with the accused were involved in the perpetration of the crimes indicted. Among them were members of the RUF, AFRC, AFRC/RUF junta or alliance and/or Liberian fighters, individuals such as Sam Bockarie, Issa Sesay, Foday Sankoh, Johnny Paul Koroma, Eddie Kanneh, Benjamin Yeaten, Daniel Tamba and others.
This evidence is based on the testimony of inter alia witnesses TF1-567, TF1-532, TF1-371, TF1-360, TF1-276, TF1-045, TF1-406, TF1-334 and TF1-516. Thus, the Trial Chamber is satisfied that there is sufficient evidence that a plurality of persons was involved in the joint criminal enterprise.
In relation to the alleged participation of the accused, the Trial Chamber finds that there is evidence that the accused participated in the joint criminal enterprise. In particular the Prosecution has adduced evidence that the accused provided arms, ammunition, financial assistance, manpower and other supplies to other participants in the joint criminal enterprise in furtherance of the common purpose, that he provided safe havens to other members, that he provided moral encouragement and military advice, that he facilitated the export of diamonds in return for arms, that he facilitated communication between the various members of the joint criminal enterprise and that he had persons who he believed endangered the common purpose killed.
This evidence is based on inter alia the testimony of witnesses TF1-371, TF1-532, TF1-375, TF1-406, TF1-045, TF1-275, TF1-360, TF1-276, TF1-577, TF1-388, TF1-516, TF1-334, TF1-084 and TF1-114.
In relation to the mens rea requirement, the Prosecution has charged the accused with responsibility for the crimes alleged under the first and third categories of joint criminal enterprise.
In its oral submission, the Defence argued that the Prosecution has adduced no evidence that the accused shared the intent to terrorise the civilian population of Sierra Leone with any co-perpetrators.
The Trial Chamber finds that the Prosecution has adduced evidence capable of proofing that the accused intended to participate in the alleged joint criminal enterprise.
The evidence shows that the accused may have had the specific intent to terrorise the civilian population of Sierra Leone in the pre-indictment period. From the early 1990s, the accused and Foday Sankoh agreed to assist each other in the capture of territory both in Liberia and Sierra Leone. Inter alia, Witness TF1-045 testified that in 1994 the accused advised Foday Sankoh to terrorise the civilian population around Sierra Rutile in order to take control of the area. Witness TF1-532 testified that the accused agreed to a plan proposed by Foday Sankoh to disrupt the 1996 elections in Sierra Leone by terrorising the civilian population.
In addition the Trial Chamber finds that there is evidence that the accused maintained this intent during the indictment period, namely the evidence of inter alia Witness TF1-532 who testified that the accused and Sam Bockarie, in planning to recapture territory across Sierra Leone, agreed to make the operations fearful. Witness TF1-371 testified that the accused was involved in planning Operation No Living Thing.
The Trial Chamber finds that there is evidence that individuals alleged to have collaborated with the accused committed the crimes mentioned above with the primary purpose of terrorising the civilian population of the Republic of Sierra Leone, namely the evidence of witnesses TF1-045, TF1-276, TF1-352, TF1-334, TF1-360, TF1-375, TF1-367 and Stephen Ellis.
Finally, there is evidence that the accused was aware of the intent of those individual to terrorise the civilian population, namely the evidence of Witness TF1-567 and exhibits D-34, P-70, P-130, P-298, P-299, P-305, P-306, P-307, P-308, P-310, P-317 and P-38.
The Trial Chamber also notes the numerous BBC Focus on Africa reports, which are Prosecution exhibits P-263, P-348A and B, P-349A and B, P-350A and B, P-354A and B, P-356A and B, 357A and B and 358A and B, which exhibits were admitted into evidence regarding the crimes committed in Freetown in January 1999, together with the evidence of Witness TF1-561 and TF1-406 who testified that the accused listened regularly to the BBC.
The Trial Chamber is therefore satisfied that the Prosecution has adduced evidence capable of supporting a conviction against the accused on Counts 1 through 11 of the indictment based on his participation in a joint criminal enterprise.
Having so found, the Trial Chamber is not required by Rule 98 to consider whether there is evidence capable of supporting a conviction against the accused on any count based on any other form of criminal responsibility.
The Trial Chamber emphasises that a ruling that there is evidence capable of supporting a conviction on a particular count does not necessarily mean that the Trial Chamber will, at the end of the case, return a conviction on that count. This is so because the standard for determining sufficiency under Rule 98 is not evidence on which a Trial Chamber should convict, but evidence on which it could convict.
Having said that, for the reasons stated the Trial Chamber dismisses the Defence motion in its entirety.
Well, as the Trial Chamber indicated on 9 April, we intend to fix a date for the commencement of the Defence case today. Do you have anything you would like to say on that issue, Mr Griffiths?