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

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

  • Good morning, Mr President, your Honours, opposing counsel. This morning for the Prosecution 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, Ms Hollis. Yes, Mr Anyah.

  • Yes, good morning Mr President, good morning your Honours, good morning counsel opposite. Appearing for Defence this morning are myself Morris Anyah, Mr Silas Chekera and we are joined by our case manager Ms Salla Moilanen.

  • Thank you, Mr Anyah. Well, as we all know today has been fixed for the Prosecution response to the Defence Rule 98 motion. Yes, Ms Hollis.

  • Thank you, Mr President. May it please the Court. The Defence counsel initially spoke and made arguments concerning the crime base in this case and so the Prosecution will begin addressing those points.

    In relation to the crime base, the Defence counsel's arguments included a request to your Honours to strike certain locations; some of them apparently because of differences in spelling between the indictment and evidence given. The locations that were set out for you by the Defence relating to Counts 1 burning, were Goderich, Kent and Grafton for which it was said there was no evidence. As to Tumbo there was an argument there was no evidence for Counts 1, 2 and 3. However, that argument seemed to be premised on a difference in spelling in that the evidence was T-O-M-B-O instead of T-U-M-B-O.

    The same held true for Wendedu as to Count 1 burnings, the apparent argument being that on the record the location was spelled W-E-N-D-A-D-U. For Bomboa fuidu, Counts 2 and 3, there was an argument that there was no evidence presented. The Defence also referenced Kayima spelled two different ways and Counts 7 and 8 and this argument apparently also was based on spelling defences in that the Defence counsel asked you to strike one of the spellings K-A-I-M-A.

    The Defence submissions relating to these locations, both as to the lack of evidence and spelling differences, must fail because spelling differences are not dispositive and the argument there is no evidence does not take into account the language of the rule which speaks of dealing with counts only and not particulars.

    As to spelling differences, your Honours have addressed this issue in your Rule 98 decision in the AFRC case at paragraph 25 where you found it inappropriate to strike out locations based on spelling, finding that due to vernacular languages and dialects names were pronounced or spelled differently and also that sometimes witnesses were not literate and therefore phonetic spellings were used. That same rationale should apply here today and should defeat that basis of objection.

    Regarding the argument there is no evidence for these locations, as I mentioned, that ignores first and foremost the language of Rule 98 which 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.

    As we are looking at counts, it is not necessary for the Trial Chamber to enquire into the sufficiency of the evidence in relation to each paragraph of the indictment, or break the count down to its particulars supplied in the indictment, and your Honours discussed that at paragraph 21 of your Rule 98 decision.

    You also went on in paragraph 21 to indicate that indeed the Trial Chamber is not empowered by Rule 98 to break the count down into its particulars and to enter a judgment of acquittal in relation to any particular which has not been proved, nor would it be practical to do so.

    We suggest that is the approach that should be taken in relation to this Defence argument as well.

    Be that as it may, the Prosecution indeed has presented evidence on all of these locations and should your Honours request it, despite the discussion that I have just engaged in, we are prepared to provide you the specific evidence which supports the locations. That is really a matter for your Honours. Our position is that --

  • Well, when you say "provide it", do you mean refer us to evidence?

  • Those references perhaps may be saving of some time to us, so if you can give us those references.

  • Most certainly, Mr President. As to Count 1, burning, relating to Goderich, Kent, Grafton and Tumbo itself, we would refer the Trial Chamber to confidential exhibit P284, to the evidence of TF1-360 at page 3213 to 3214; TF1-334 at page 8328, 8332; TF1-585 at pages 15725 to 15730. In addition for Tumbo, TF1-097 gave evidence of burning and killing at page 18560 to 18561 and 18563 to 18567.

    In relation to Wendedu Counts 1, 2 and 3, we would refer you to TF1-015 at pages 722 to 723 and 736 and we would also refer you to TF1-217 at page 19398 to 19399. In terms of Bomboa fuidu, Counts 2 and 3, we would refer you to TF1-192 at pages 3963 to 3969 and Prosecution exhibit 202, prior transcript pages 19670, 19679 to 19681. In relation to Kaima or Kayima, Counts 7 and 8, we would refer you to Prosecution exhibit 191 at pages 18552 to 18559 of the prior transcript and to exhibit P-192 and confidential exhibit P-193.

  • Yes, proceed. Thank you, Ms Hollis.

  • Thank you. Now, in various iterations throughout the submission by the Defence, Defence counsel also basically asked you to engage in examining contradictions and inconsistencies in the evidence. It is inappropriate at this stage to engage in such. The evidence is whether there is - the test is whether there is evidence which could possibly support a conviction on one or more counts. Evidence on which the Trial Chamber could convict, not ultimately would convict, and your Honours discussed this at paragraph 38 of your Rule 98 decision.

    In that, in paragraph 8 of that decision, you indicated that if one possible view of the facts might support a conviction the Trial Chamber cannot enter a judgment of acquittal.

    Also at paragraph 38 in your general findings you referred to Defence submissions that some of the Prosecution witnesses were contradictory or unreliable, and you reiterated that the object of the enquiry at this stage is not to make determinations relating to credibility or reliability but rather to determine whether the evidence, assuming it is true, could not possibly sustain a conviction.

    We also suggest that it is inappropriate at this time, and you are not required certainly to look at all the evidence in the case; rather, whether there is evidence - some evidence - which could support a conviction on each or all counts. So we suggest it would be inappropriate at this point to consider contradictions - alleged contradictions - or inconsistencies.

    Now, turning to the substantive crime based arguments, Defence counsel argued relating to Count 1, acts of terror, and focused on the element of primary purpose that the act or threat of violence against people or property must be carried out with the primary purpose of spreading terror. We therefore shall focus on primary purpose as well.

    Firstly, it is a requirement to show the primary purpose was such, not the motivation for which this primary purpose was engaged in.

    Secondly, terror may also mean or include extreme fear. That is at Galic Trial Chamber judgment paragraph 137. How do you determine this was the primary purpose? In making this determination, as in making the determination relating to other elements of offences as well as individual criminal responsibility, you can certainly look to evidence outside the temporal and territorial jurisdiction of the Court if it is relevant to establish this primary purpose element. Nothing prohibits the use of such evidence and it should be used if it is relevant.

    You would also look not only at the actions taken against the people, but the circumstances in which these actions were taken. Two examples in the evidence before you are illustrative of this.

    Firstly, you had TF1-189 testify about the rebels systematically raping and burning in a village and the killing of a man in horrific circumstances; all this while the other inhabitants of the village were forced to hear or watch what was happening, and that is at pages 16492 to 16498, 16504 to 16507.

    TF1-064, at pages 17648 to 17657, testified about hearing children in her village screaming as they were killed by the rebels and that after the killings the witness was made to look among the dead bodies for her relatives and found her children among them. She also testified that the people captured were taken from this village to Tombodu and that one of the things that she had to do was to carry a bag of heads, the bag dripping blood, and that the rebels made her laugh about this. She further testified that in Tombodu when the bag was emptied she saw the heads of her children in the bag and that the heads of the victims were thrown into a pit.

    So not only do we have this conduct, but the circumstances in which this conduct is carried out that give rise to showing the primary purpose was that of terror.

    Also at pages 4027, 4036 to 4037 and 4172 to 4173, you've heard that relating to the period of the Freetown attack the rebel attacks included the element of instilling great fear in people and that one can certainly say that the rebel campaign did instill a vast degree of terror across entire communities.

    You also heard that the campaign of terror waged by the RUF and the AFRC involved the systematic laceration, mutilation or severing of limbs of non-combatants including children and the elderly and that the killing of civilians during the attack on Freetown looked not like chaos, but like terrorisation such as was identified in so many other attacks in Sierra Leone.

    TF1-588 also told you, at pages 16962 to 16964, while referring to exhibit D-62 which was an Africa Confidential article, a chronology, in April of 1998, and he looked at the second paragraph on page 1 of that article where it said that in April 1991 the RUF used brutal tactics to terrorise civilians, often mutilating and amputating their limbs and the witness said he saw and experienced idioms of this sort of terror in Liberia and he said the terror was the common denominator between Liberia and Sierra Leone.

    Now, in addition to evidence of this type, in this case you also have evidence of linkage witnesses to show that the primary purpose of this conduct toward people and property was to spread terror. TF1-045 testified on 12 November that Charles Taylor in 1994 gave advice to Foday Sankoh that Foday Sankoh should attack Sierra Rutile and terrorise the area starting with the civilians in the towns and he testified that indeed they carried this out.

    TF1-532, at pages 5689 to 5693, told you that in 1996 before the elections Foday Sankoh communicated with Charles Taylor and conveyed to Charles Taylor a plan Sankoh had to disrupt these elections and that he told Charles Taylor that the offensive would be to make people fearful and anybody who was captured would be amputated and they would ask the person to take his hands off the election and that in response to this information Charles Taylor indicated that the plan was not a bad one and that Foday Sankoh then communicated to his commanders that he had explained this plan to Charles Taylor and Charles Taylor said it was not a bad plan at all; that the plan was carried out, various targets were attacked, some successes in some places including amputations and carving "RUF" on the chest of civilians.

    Now, TF1-532 also told you, at 6223 to 6224, that during the Operation Spare No Soul in Njaima Nimikoro civilians were killed and amputated as part of making the area fearful, meaning they should kill and burn down houses so that people living in the areas and even the enemies they were fighting against would be afraid, and the witness told you that the RUF created terror in civilians by marking "RUF" on their chest and on their backs.

    TF1-334 at page 7978 told you about capturing civilians and then amputating them in Kono and said that SBUs did this in order to send a message to other civilians to fear the rebels and that this happened in March or April of 1998.

    The witness also told you that corpses were displayed in the streets of Sewafe in Kono District and human heads were put on guard posts; that corpses and human heads were displayed to make the area fearful for civilians and ECOMOG at Bumpe and this was during this same time period.

    This same witness, at 7952 and 7955, also told you in mid-March 1998 Johnny Paul Koroma said Kono should be a no-go zone for civilians and they should accept only able bodied civilians; the rest should be executed. And that pursuant to that the witness and others, together with the RUF, executed a group of civilians at Yardu Road in Koidu Town and then displayed their bodies at various junctions to create fear so others would not come to Koidu Town.

    TF1-360, at 3103, told you of Sam Bockarie's orders to Issa Sesay for the troops to make Kono District fearful, meaning the destruction of life and property including the burning of houses, and that Morris Kallon then gave orders to make Kono fearsome, meaning the same sorts of things, that there were orders on the radio to burn down Kono and then Kono was completely burned down.

    The witness also told you, at page 3150 to 3151, about the planning of the 1998 Bumpe mission at Superman ground and that Sam Bockarie sent a message to try to make Kono District fearful and that Bockarie also sent ammunition for this mission and that the fighters went into Bumpe town, the town was burned down and they killed all the civilians they met there.

    TF1-375, at 12511 to 12512, also talked about the attack on Bumpe saying houses were burned, some civilians were decapitated, their heads were put on checkpoints and the reason for targeting civilians was to create fear in the community and make the area fearful.

    TF1-367 also told you, at page 14165, that Issa Sesay came to Guinea Highway and gave orders to Rambo's troops and in carrying out the mission Operation Free Foday Sankoh they should make the operation fearful.

    Now, TF1-399 told you, at page 5862 to 5864, that the NPFL in Liberia, from Tapeta to Grand Bassa, would mount human heads on car bumpers and hang human intestines across checkpoints and this was used as a tactic to create fear in civilians and that Charles Taylor drove through such checkpoints. And of course, TF1-532, at pages 5689 to 5690, told you that Sam Bockarie and Charles Taylor planned an operation to capture Kono, Makeni and then advance to Freetown. That Charles Taylor gave ammunition for the plan and Charles Taylor said that in order to save ammunition they should make the Freetown attack more fearful than any other in order to take Freetown and hold onto power.

    There is evidence that could support a finding that the acts or threats of violence against the civilian population of Sierra Leone was for the primary purpose of spreading terror. Now much of this evidence is also relevant to supporting a conviction based on at least one of the various forms of liability alleged in this case.

    Just one additional point before turning to the evidence to support at least one form of criminal liability. The reason the counts alleged in the indictment allege crimes occurring from about 30 November 1996 and not before is because 30 November 1996 is the commencement of the temporal jurisdiction of the Court. However, evidence before that time, as I mentioned earlier, is certainly relevant to other determinations relating to elements of both offences' contextual elements and individual criminal responsibility.

    Of course an armed conflict or an attack against a civilian population, a joint criminal enterprise, planning or instigation may occur before the crimes themselves and outside the country in which the alleged crimes are committed. Evidence of such conduct is relevant to establish the various elements.

    Turning now to evidence related to the accused's individual criminal responsibility. Individual criminal responsibility is not strictly speaking a count under the indictment so the approach the Prosecution suggest should be that as long as there is evidence which could support conviction on the basis of any one of the various modes of liability alleged no judgment of acquittal should be entered. If there is evidence which could support a conviction on the basis of one of the alleged forms of liability, there is no need to examine the other forms of liability in relation to the Rule 98 exercise.

    In relation to the point that there need only be sufficient evidence to have a basis of one of the alleged forms of liability, we would refer to several cases in the ICTY after their Rule 98 bis was changed to reflect an assessment of whether there was any evidence that could support a conviction on any count.

    In the decision on the Rule 98 bis in the case of Prosecutor v Martic, which is found at the 3 July 2006 transcript of that case, that Trial Chamber followed the approach that was set out by the case of Prosecutor v Mrksic and in Mrksic the Trial Chamber stated that all it need do is be satisfied there is evidence to the requisite standard with respect to at least one mode of liability as regards each count. This approach was also followed in the Prosecutor v Milutinovic case and that can be found at the trial transcript at 18 May 2007, pages 12772 and 12773.

    And the same approach was followed in Prosecutor v Prlic and that can be found at the transcript in that case at page 27207.

    Now, with that approach in mind, let us examine the evidence 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.

    First, we have to look at the evidence that would support the existence of a common plan, design or purpose which amounts to or involves the commission of a crime provided for in the statute. The existence of this common plan may be established by either direct or circumstantial evidence, relying here on the Furundzija appeal judgment at paragraph 119. Virtually all the evidence in this case is relevant to the existence of JCE as a form of liability in this case.

    Now, before looking at the actual elements, one point because it has some bearing on the proof of JCE. Defence counsel raised the question of what Foday Sankoh did to contribute to the common cause made between himself and Charles Taylor to assist each other in taking power in their respective countries. Of course there is no requirement to show that this assistance was a two-way street, but in this instance it was and the fact that it was a two-way street is relevant to the existence of the common plan, design or purpose and the nature of the relationship between the RUF and later the AFRC/RUF alliance and the accused.

    Now, you have evidence that early on Foday Sankoh, Rashid Mansaray and Mohamed Tarawalli were part of the accused's NPFL. You were told that at page 23135 to 23138 and page 23153. Several witnesses have also told you that in 1993 Foday Sankoh sent men to assist Charles Taylor to a fight against ULIMO in Liberia, including TF1-567 at pages 13074 to 13087.

    Several witnesses also told you that starting in 1999 the RUF were sent to fight in Liberia and Guinea against the LURD and against the Guinean government at the direction of Charles Taylor. For example, TF1-276 testified about such operations at 2045 to 2055, including a 1999 operation against Mosquito Spray where Sam Bockarie got the instruction from Charles Taylor to move against Mosquito Spray and sent RUF into Liberia to fight them. The witness told you also of all of the different units that were involved, the RUF and all of the units working for Charles Taylor, including the Armed Forces of Liberia, the police, the anti-terrorist unit and he told you that the overall commander of all these troops was Benjamin Yeaten.

    He also talked about attacks in 2000, one attack on Guinea, because Charles Taylor told Issa Sesay that he, Sesay, should give Taylor grounds in Guinea so that when it came time to disarm in Sierra Leone some of the arms could be taken to Guinea for safekeeping. He also talked about 2001 attack on Guinea from Liberia in which the RUF also participated; Benjamin Yeaten again the commander of this attack.

    And, of course, as we will discuss further below, multiple witnesses testified that Foday Sankoh, Sam Bockarie and Issa Sesay, as well as Johnny Paul Koroma, gave Charles Taylor diamonds from Sierra Leone. Those are some of the ways that Foday Sankoh and his designees, as well as the AFRC, assisted Charles Taylor and there is also from that evidence indication of the particular nature of Charles Taylor's relationship with these groups.

    Now, that would lead us to the existence of the common plan, design or purpose as it relates to Sierra Leone. A criminal means of a campaign of terror, encompassing multiple crimes to forcibly control the territory and population of Sierra Leone and pillage the natural resources, in particular diamonds.

    First, let's look at the evidence relating to the forcible control of the population. Virtually all the evidence in this case was a manifestation of these attempts and successes in part to control the population and territory of Sierra Leone. At page 5670, TF1-532 told you about a meeting in Voinjama where the accused said that he was sending the witness and other NPFL to Sierra Leone to take over power and keep the ball rolling. TF1-399, at page 5865 to 5866, told you of a forum in Liberia attended by special forces where it was agreed that Foday Sankoh would go to Freetown and take over the government.

    At pages 4804 and 4806 you were told that when Foday Sankoh and Charles Taylor introduced themselves to trainees, on this instance Foday Sankoh said he and Charles Taylor were bound together to fight, fighting for Liberia and then for Sierra Leone and that they were fighting for the same goals.

    The efforts to forcibly control the people and territory of Sierra Leone continued during the junta. You have agreed fact 30 showing that the RUF joined with the AFRC shortly after the coup and that together they governed the country during the time the junta was in power and we will speak more about that alliance in a moment when we talk about plurality and also the accused's participation in the joint criminal enterprise.

    After the junta were forced from power on about 14 February 1998 the aim of forcibly controlling the population and territory continued and it manifested itself most dramatically in the multi-facetted operation culminating in the attack on Freetown in January of 1999. Now, the motivation that drove particular individuals to be involved in this attack is really not relevant. The aim was to take Freetown to control the people and territory of Sierra Leone.

    Now of course control over the people and territory of Sierra Leone, amongst other things, facilitated the pillage of the natural resources of Sierra Leone, in particular the diamonds. Firstly, pillage of natural resources of a country, be they considered government property or private property, is a crime within the statute of the Court, Article 3 (f) of the statute, and your Honours also addressed this issue in the AFRC judgment at paragraph 751 and 755.

    A multitude of witnesses have testified about this aspect of the common plan, design or purpose, an aspect that manifested itself early in the conflict in Sierra Leone. Once forces, Charles Taylor's forces primarily, had moved into Pujehun District and taken Pujehun District they went to the diamond mining areas, took the diamonds and those diamonds were taken to Charles Taylor. You were told that at pages 23481 to 23486.

    At pages 12853 to 12856 TF1-567 told you about the RUF taking Kono, that is Koidu, in late 1992, and he told you that Foday Sankoh said his brother Charles Taylor had arranged arms and ammunition in order to capture Kono because it was a diamond mining area and that arms and ammunition were received - a large number of arms and ammunition.

    The witness told you that as soon as Foday Sankoh went to Koidu he got an urgent message to go see Charles Taylor. Foday Sankoh did that. He took the diamonds and gave them - that he received in Koidu - and gave them to Charles Taylor and we have that at pages 13074 to 13087.

    During the junta period this part of the aim of the common plan, design or purpose continued. Among others TF1-532, at pages 6191 to 6192, told you about the diamond mining by the AFRC and the RUF in Kono and Tongo Field, and at pages 5719 to 5721 he told you that Gullit was in charge in Kono and that Gullit brought diamonds to Johnny Paul Koroma. You also learned that at pages 2340 to 2341.

    TF1-532, at pages 5719 to 5721, told you about Johnny Paul Koroma sending diamonds to Charles Taylor during the junta for arms and ammunition.

    TF1-045, TF1-571 and TF1-567 also told you about government mining during the junta and that Sam Bockarie was also sending diamonds to Charles Taylor during the junta by means of Jungle, also known as Daniel Tamba, and you find this at pages 20146 to 20149, 9380 to 9384 and 12884 to 12889.

    The AFRC and the RUF were working together during the junta and they were concentrating on controlling territory and taking the diamond resources in particular of Sierra Leone.

    After the junta was forced from power you are told, at pages 11055 to 11056, and pages 11060 and 11075 you are told by TF1-577 about a secret meeting in 1998 after the intervention. That the meeting was attended by Sam Bockarie and others including Ibrahim Bah and Jungle and that these two were sent by Charles Taylor with messages and what were the messages? That Charles Taylor recognised the AFRC/RUF relationship, that they were to work hand-in-glove and that they should try and get hold over Kono since it was where they will get their resources, meaning diamonds, and also they should try to construct an airstrip behind Buedu. So once the junta is pushed out of power, Charles Taylor very quickly remains involved to ensure that the alliance continues and in particular that they worked to get Kono where the rich diamond resources are found.

    During the period after the junta was forced from Freetown, many witnesses also told you that Sam Bockarie and Issa Sesay sent diamonds to Charles Taylor, large amounts of diamonds, and usually after these diamonds were taken to Charles Taylor the AFRC and the RUF would receive arms and ammunition and other supplies. Those witnesses included TF1-567, at pages 12902 to 12903, TF1-338 at pages 15156 to 15163. You were also told that at page 13000 to 13007, 13201 to 13202.

    Some of these witnesses also told you that the diamonds were taken to Charles Taylor supposedly for safekeeping, but to their knowledge neither Foday Sankoh, Sam Bockarie or Issa Sesay were ever given these diamonds by Charles Taylor. For example, TF1-567, at pages 13201 to 13202, speaks of that.

    At page 7164 to 7172, TF1-516 told you about communications involving the RUF taking diamonds to Charles Taylor, also known as the chief, from about 1999 to late 2001, and he explained that messages would be sent to Charles Taylor or Benjamin Yeaten, who was Charles Taylor's subordinate, telling them that Eddie Kanneh was coming with diamonds to meet Charles Taylor; that Sam Bockarie also said he took diamonds to Charles Taylor and that Eddie Kanneh sent messages saying he was bringing parcels to Charles Taylor.

    TF1-360, at pages 3045 to 3047 and 3147, also told you about diamonds being taken to Charles Taylor, both in the early period and after the junta was forced from Freetown. The witness also told you that when they were pushed out of Freetown Charles Taylor told Sam Bockarie to stand by in Kono and encourage them, stating that once they had Kono they could take over the rest of Sierra Leone, since Kono was the centre for diamond mining and profit.

    And, of course, you cannot forget that the accused himself said that the war in Sierra Leone was about diamonds, although he disagreed as to who wanted those diamonds. You can find that at Prosecution exhibit 33B.

    So we have evidence to support a finding of the existence of this common plan, design or purpose. The criminal means by which it was carried out are crimes within the statute, the pillage, which was one of the aims if you will, is a crime within the statute.

    We also have to look at the evidence that supports that a plurality of persons participated in the realisation of this common plan, design or purpose. The Defence seems to target primarily the membership of the AFRC component in the common plan design or purpose, in particular after the junta was forced from power. There is ample evidence to show this alliance remained in place after the intervention. Of course the evidence already discussed is relevant to this element as well. Additional evidence relating to the AFRC's membership and participation in this common plan, design or purpose would include the following:

    Firstly, Defence exhibit 34. This is a document dated 26 January 1999 and it is the response by the Government of Liberia, of which Charles Taylor was the President, by his ministry of information, a response to allegations of Liberian involvement in the Sierra Leone war. And when you look at that document you will see that throughout that document the accused's own representative refers to the AFRC/RUF, AFRC/RUF rebels, AFRC/RUF officials, indicating the accused himself is of the mind that there is this alliance in these parties.

    You were also told in relation to the junta period that at page 12880 that Foday Sankoh passed instructions to the RUF not just to join their brothers, the AFRC, but also to work together with them. TF1-567 indicates that.

    You also can look at Prosecution exhibit 58, a gazette, with a list of Supreme Council members including RUF; Prosecution exhibit 59 and 60, command charts during the junta period showing both components; Prosecution exhibit 61, minutes of an emergency council meeting showing AFRC and RUF present.

    Also the evidence of TF1-532, at pages 5702 to 5703 and 5722 to 5723 that the RUF and the SLA fought together at Hastings against ECOMOG during the junta and that during the junta relations between the AFRC and the AFRC were nice; they fought together, they worked together, they used arms together, they were mixed up, SLA and RUF. There wasn't one separate place for RUF and one separate place for AFRC. They were all together and fighting together and that this witness himself had SLA Special Task Force and RUF among his men.

    He also told you at pages 5704 to 5705, and 5716 to 5717, that the Supreme Council was where you had authorities like Johnny Paul Koroma who used to plan the war and that there were RUF and SLA or AFRC members of the Supreme Council.

    This evidence indicates the relationship and the participation of the AFRC in the joint criminal enterprise during the junta. The alliance continued after the junta was forced from Freetown.

    At page 5732 to 5735 and 5771 TF1-532 told you that when the junta was forced from Freetown the AFRC, the RUF and the Special Task Force all fled together, and he told you that the People's Army was comprised of the AFRC and the RUF and was headquartered at Buedu in 1998.

    At page 1258 to 1260 TF1-114 told you about AFRC and RUF commanders in Buedu after the intervention. At page 1970 to 1972 and 2001 to 2004 TF1-276, who was sent by Charles Taylor to join Sam Bockarie in Buedu in 1998, told you that the SLA and the RUF combined were the People's Army and that there were SLAs, that is AFRC, RUF in the chain of command when he arrived in Buedu and that the RUF and the SLAs were working together.

    TF1-532, at pages 5740 to 5741, sheds further light on this relationship, testifying that the command chain after the intervention was that if you had an RUF commander then you had an AFRC deputy and vice-versa, and that Sam Bockarie was the overall commander over all fighters and there were other commanders like Akim Turay, Leather Boot, Banya who were SLA or AFRC as well as Issa Sesay and Morris Kallon, and at pages 5817 to 5818 the witness told you that Gullit was in Buedu with Sam Bockarie after the intervention and that Gullit and Sam Bockarie had a cordial relationship.

    The witness also told you at pages 5742 to 5744 that Superman was the commander for the entire Kono District, those portions that the alliance held, and that there were SLAs there with him as well including Leather Boot and Five-Five and that there were lots of AFRC men in Kailahun District and that also there were RUF men in the north in Koinadugu with SAJ Musa, including people like King Perry, Alfred Brown, commanders and fighters.

    TF1-334 told you at pages 8304 to 8307 that prior to the Freetown invasion in January 1999 some RUF and SLA were based in Kailahun, Kono and Daru areas. He also told you about using the RUF and SLA troops based in the various parts of the country as part of a plan to weaken the ECOMOG forces so ECOMOG would be unable to reinforce their troops in Freetown.

    There is additional evidence about the alliance in the north. TF1-143 testified at pages 8970 to 8985 that in September 1998 he was captured in Koinadugu District. He was 12 years old at the time. Others were captured, including boys and girls. And that after they were captured they were marked by their captors and that the first one who was marked was marked with an "AFRC" on his forehead and "RUF" on his chest and that this witness was marked with an "RUF" on his chest and they were told that now they were captives and they were now members of the group. The witness testified that those that captured him were under SAJ Musa and they were mixed AFRC and RUF and that Superman was also there with the group.

    TF1-028 at pages 9205 to 9210 testified about the command structure at Eddie Town in Bombali District, including Colonel Eddie, Five-Five, Gullit and others and also Mohamed, indicating that is an RUF person, Mohamed's third group for Superman and that Superman was sending reinforcements to this group with a good amount of ammunition for the Freetown mission. He says there were more - there were about 100 and more RUF sent as reinforcements and that everyone was happy about this because now they had enough ammunition to go to Freetown.

    Now the move on to Freetown, the attack on Freetown, this multi-facetted approach, there is also evidence of the alliance in place, both for the group that moved from the north to Freetown and the group that moved through Kono, Makeni on to the Freetown area.

    There is ample evidence that RUF forces were among those who actually entered Freetown, in addition to the RUF who were released from Pademba Road and joined the forces in Freetown. TF1-275 testified at pages 4548 to 4552 about this RUF and AFRC plan for the coordinated attack. He testified he was in the north and after he and his group had received information that Foday Sankoh was condemned in Freetown that Sam Bockarie gave instructions to Superman to march on Freetown. He told Superman to get ready to go to Makeni and from there to Freetown.

    Sam Bockarie also said that he had been in communication with Gullit and Gullit would move on Freetown and Sam Bockarie had prepared Issa Sesay and Morris Kallon to move on Koidu Town and then on to Makeni.

    The witness said that based on these instructions from Sam Bockarie Superman organised troops, went to Makeni and there on instructions of Sam Bockarie attacked Makeni, and he explained that the group that captured Makeni included Superman's group and another group headed by Boston Flomo, that is Rambo as he was otherwise known, and he said that there were communications between Issa Sesay and Morris Kallon's group in Kono, communications with Superman, there were communications from the group at Rosos to Superman, the communications were flowing back and forth.

    TF1-584 testified at pages 12277 to 12278 that on 7 January 1999 she received a radio message in Lunsar from Sam Bockarie to Superman and RUF Rambo to join the men who had entered Freetown and captured State House and that they left for Freetown with 200 combatants and ammunition arriving in Hastings on 9 January but then retreated to Yams Farm.

    TF1-375 testified at pages 12608 and 12611 that at Waterloo Superman, Issa Sesay, Komba Gbundema and other senior officers distributed the troops and that Colonel Babay and other commanders went to Benguema Barracks while RUF Rambo, and Rambo Red Goat and other commanders successfully cleared Hastings but got stuck at Jui. Issa Sesay then sent an order to RUF Rambo to send Rambo Red Goat's group to Freetown to meet up with their brothers there while the rest of the group tried to clear the main road. Rambo Red Goat's group, which consisted of about 60 to 65 men from the RUF, the SLA and the Special Task Force successfully crossed into Freetown.

    TF1-375 testified at page 12610 that the men in Rambo Red Goat's group were armed from their own commanders so the RUF in the group were armed from Issa Sesay and Superman and again reiterates that this group crossed successfully into Freetown.

    TF1-360, an RUF member, testified at pages 3185 to 3186, 3213 and 3221, that he travelled with the group from Rosos - to Rosos from Koinadugu and that in the group were AFRC members, about 60 RUF members and Special Task Force members and that the RUF fighters were divided into the Red Lions, the big umbrella unit of the RUF, and a Cobra battalion. And the witness told you this was part of the planning for the joint military operation to attack Freetown and that he and his group were part of the group that entered Freetown on 6 January and he worked communications after he entered.

    At page 8288 and 8298 TF1-334 told you there were RUF among those in Freetown and NPFL men as well, which we will discuss in a moment, and he told you of the radio broadcast of FAT Sesay that the AFRC and the RUF had taken over the State House. Prosecution exhibit 262 is that broadcast.

    Now, in argument Defence counsel, at page 24080, discussed with you a citation for a witness saying that the witness had testified that none of the senior RUF commanders were involved in the 6 January 1999 invasion of Freetown. If you look at page 2813, you will find that the witness was asked that question, whether any senior RUF commanders were involved in this invasion, but the witness's answer was that "involved" is vague. Involved in what sense? And then the witness clarified that as combatants, as fighters firing, none of the senior RUF commanders entered Freetown.

    TF1-516 at pages 6943 and 6947 testified that Sam Bockarie gave instruction and strategy to those in Freetown during this Freetown operation and that when commanders were given ammunition for the operation of Freetown the AFRC and RUF were all mixed up together.

    Now, in terms of the SLA's involvement in Freetown, TF1-334 at pages 8503 to 8516 talked about a meeting after Lome, a meeting where former SLA delegation including himself went to talk to Charles Taylor at Charles Taylor's request and that they met with Charles Taylor and Charles Taylor said - now this is post-Lome - that he wanted to end the division between the RUF and the AFRC. He said he had been assisting the movement and he had mobilised most of the SLA who came to Liberia and sent them to Sam Bockarie in Kailahun so they could assist and reinforce the 6 January 1999 invasion. He said he was assisting both groups and he said he was assisting them so they can remove the government in Freetown and the focus should be on putting the AFRC and the RUF in the seat of power, not on disputes. So Charles Taylor is telling this witness that he has SLA in Liberia and he is sending them to Sam Bockarie. The alliance is alive and well.

    Now, there was a question, and it is a legitimate question, why would Charles Taylor meddle, if you will, at this point? It is post-Lome. Why would he meddle? If we look at the situation post-Lome it is quite easy to understand in the context of the JCE why he would "meddle". Post-Lome there was a general amnesty. The RUF had positions in the government, including Foday Sankoh as the chairman of strategic resources, and the RUF had control of the diamond areas, so Charles Taylor benefited that there be no overt disruption of Lome, although there is indications that we will talk about later that they were covert efforts related to Lome.

    Now, Defence Counsel also spoke about the SAJ Musa invasion of Freetown and, of course, that is not correct because SAJ Musa was killed prior to the invasion of Freetown and after SAJ Musa was conveniently killed Gullit took over and it was Gullit who was in command on the ground when those forces entered Freetown and when Gullit was in command he recommenced communications with Sam Bockarie and he followed the instructions of Sam Bockarie during the Freetown invasion. TF1-274 told you that at page 21726 to 21728, 22255.

    We also have evidence of the large body of RUF who moved to Freetown to reinforce those who were fighting in Freetown and TF1-567, at page 12910 to 12911 and 12918, talks about that body. Prosecution exhibits 93 and 149 also talk about that body of fighters and the efforts to join up with the fighters in Freetown.

    At page 6162 to 6163, TF1-532 told you that Rambo's forces fighting ECOMOG in Hastings - in the Hastings area - that was important because eventually it allowed the men, when they retreated from Freetown, to use the forest to come towards their colleagues at Waterloo and he also told you that during this time the AFRC and the RUF had a cordial relationship. They had an understanding. They were together as one. There were no problems.

    In relation to the overall situation between the AFRC and the RUF after the junta was pushed out, Prosecution exhibit D-85 is also of assistance to you. This is a comprehensive report to Foday Sankoh from Major Francis Musa, and at page 00009766 the report indicates that the consultation, coordination and cooperation among senior officers and other ranks brought about the recapture of Joru Jungle, Kono, Makeni, Magburaka, Segbwema, Tongo Field, Western Jungle and Freetown and many other places from the end of 1998 to early 1999, and at page 9767 he told you that about 95 per cent of the SLA brothers, including Akim Turay, Soriba, Dumbuya, Bakarr, Leather Boot and many others are loyal to the movement.

    So the RUF and the AFRC, this evidence shows, continued to work together to regain control of the country after the junta were forced out. Both were involved in the movements to Freetown from the various axes were part of the group that entered Freetown, but even if it were not true that RUF were actually among those who entered Freetown, liability would still lie for the crimes committed in Freetown because of the continuing existence of the alliance of the participants in this joint criminal enterprise including AFRC and the RUF.

    Now, this plurality also included people who were more directly subordinate to Charles Taylor and it included those from the very beginning. Now, in terms of who was the leader of the NPFL, there is a lot of evidence about that, but perhaps we should look at the evidence of TF1-561 at pages 9804 to 9807, 9814 to 9815.

    This witness told you that Charles Taylor, by his own words, made it very clear he was the leader of the NPFL and he talked about first seeing Charles Taylor in Libya, that there was a meeting Charles Taylor introduced himself and said, "I am Charles Taylor. This is my organisation." He said he was the biggest man in the organisation. He was the only one that they would report to. Nobody else. And the organisation is named the National Patriotic Front of Liberia and he told you no-one would have questioned Charles Taylor's authority because the NPFL was a military organisation and you don't query authority. Everyone called him chief.

    Confidential exhibit P277 at page 14 shows that most of the initial fighters who went to Sierra Leone were Liberians, including hard core Charles Taylor fighters.

    And now at page 4806 to 4807 you were also told about Charles Taylor's initial involvement. That he arrested Sierra Leoneans, gave them over to Foday Sankoh, that he gave NPFL to Foday Sankoh for use in Sierra Leone and to train Sierra Leoneans, that he gave facilities and materials and supplies for training.

    P54, the command chart, also shows the involvement of the NPFL early on.

    At page 5669 TF1-532 told you that he was given to Foday Sankoh by Charles Taylor not just to go to Sierra Leone to fight, but also to train at Camp Naama.

    Now, as noted above, both TF1-045 and TF1-567 told you about Jungle coming to Sierra Leone during the junta to bring the arms and ammunition; that he got diamonds. TF1-274 at pages 21491 and TF1-579 at page 19832 told you that Jungle was an NPFL and that later he was a member of the Special Security Services under Benjamin Yeaten.

    Others told you about Jungle, Joseph Marzah, Sampson Weah and other Liberians coming to Sierra Leone with arms and ammunition after the intervention and this includes TF1-567 at pages 12903 to 12906, TF1-516 at pages 6999 to 7001 and 7012 told you that Joseph Marzah, Jungle, Sampson Weah and others brought materiel under the command of Benjamin Yeaten.

    He also told you that General Dopoe, who had been one of those in command in Sierra Leone at the beginning when atrocities were committed, was also one of those who travelled to Sierra Leone to bring materiel; that he was General Dopoe when the atrocities were committed and he was General Dopoe when he returned to bring materiel.

    Charles Taylor's involvement with his own direct subordinates in providing assistance to the alliance in Sierra Leone, to providing assistance to the RUF, evidence is sufficient to show the plurality of this joint criminal enterprise.

    Now, if we look at the accused's participation in the common design, first of all participation in the common plan need not involve the commission of a specific crime but can be in the form of assistance or contribution to the execution of the common plan. Nor is it necessary to prove the substantial or significant nature of the contribution. It is sufficient to have committed an act or an omission which contributes to the common criminal purpose, citing Kvocka et al Appeals Chamber judgment paragraph 421, and at that same paragraph they observed, rather, at paragraph 97 of that decision they observed that in practice the significance of the accused's contribution would be relevant to demonstrating that the accused shared the intent to pursue the common purpose.

    The use of tools as actual perpetrators, persons who may not be members of the joint criminal enterprise, we rely on the CDF Trial Chamber judgment at paragraph 216 adopting the approach of the Brdjanin Appeals Chamber at the ICTY.

    The Martic judgment gives us additional assistance on that. That appeals judgment is 8 October 2008, especially at paragraphs 169 and 171 and in discussing this issue they approved the approach of the Appeal and Trial Chambers in the case of Stakic in which the Appeals Chamber upheld the Trial Chamber finding that the crimes at issue were in fact committed by forces under the control of JCE members in circumstances where the plurality of persons involved in the JCE included leaders of political bodies, the army and police.

    Now, this accused's actual participation took many forms. We have discussed some of that in the comments that I have made previously. For purposes of Rule 98, dealing with counts, we suggest that it is sufficient if there is evidence to support a finding of participation via one of these forms, that there is no need to show participation including all the forms.

    Now certainly we would have to have additional commentary about the assistance, the contribution that the accused made to the RUF and later the AFRC and RUF by providing arms, ammunition and other associated materiel. This was at the beginning and it continued throughout. We have discussed some of the support given at the beginning and in addition TF1-367, at pages 14098 to 14099, said that all the materiel and supplies for the attack on Sierra Leone came from the accused.

    Others told you about trips to Gbarnga for arms and ammunition and other supplies; TF1-567, at pages 12844 to 12851, 13068 to 13073, and 12828 to 12829. What is the relevance of this early support? Some of it is continuing. Some of it is continuing in the form of weapons that are not lost, in the form of supplying trainers, in the form of supplying personnel, some of those who remained with the RUF.

    The participation continued during the junta. For example, we have discussed the provision of arms and ammunition in exchange for diamonds. TF1-532 testified at pages 5713 and 5715 that after the junta took over there was a meeting attended by Ibrahim Bah and that he brought a message from Charles Taylor asking the RUF to work with the AFRC and that he would help with ammunition support. Again, manifesting his intention that this alliance work together. This is the best way to ensure control of territory and access to these resources, including diamonds.

    You were told at page 2300 to 2301, and 2303 to 2309, how the Magburaka shipment was arranged with Charles Taylor, that the shipment was organised by Johnny Paul Koroma and Ibrahim Bah in concert with Charles Taylor.

    TF1-532, at pages 5724 to 5728, 5733 to 5734, also told you that Johnny Paul Koroma said the Magburaka shipment was arranged by Charles Taylor. It included anti-aircraft guns and general machine-gun rounds.

    You were also told at pages 2823 to 2824, and 2979 to 2980, that this shipment was distributed to Sam Bockarie in Kenema, at least parts of it, and other parts were stored in stores held by Johnny Paul Koroma; evidence to support the continuing participation in this mode during the junta. After the junta a great deal of evidence to show that Charles Taylor continued to send arms and ammunition to this alliance.

    The interesting aspect of this, TF1-406 told you at pages 851 to 856, and at 1016 to 1017, and 1013 [sic] and 1136, told you that after Charles Taylor was President, Charles Taylor had this witness get arms and ammunition from ULIMO in Lofa County and that he delivered some of those arms and ammunition to the RUF. And further, that Charles Taylor told him he should let ULIMO know that it was okay to deal arms and ammunition with the RUF, that there should be open border, and he told you that Charles Taylor had informed him that he, Charles Taylor, had given Sam Bockarie money to buy arms.

    TF1-274 said that Charles Taylor gave Sam Bockarie US dollars almost every trip Bockarie made to Monrovia, sometimes 10 to 20,000 dollars and that Sam Bockarie used those dollars to buy ammunition from Liberian commanders.

    TF1-367 at page 14144 to 14150 testified about being sent to Lofa County with money to buy arms and ammunition from ULIMO and he said that in doing this he worked with the NPFL there and he used the NPFL communications equipment to be able to talk back to those in charge in Sierra Leone.

    Now TF1-334 further told you, at pages 8009 to 8011, that he heard about the call from Sam Bockarie to Superman telling Superman to hold and maintain Kono with arms and ammunition received from Charles Taylor. Sam Bockarie said that Charles Taylor had sent those arms and ammunition and TF1-334 told you that they received the ammunition and arms and they used the ammunition to attack villages and towns in Bombali District.

    Significant evidence also about Charles Taylor providing materials for the operation that culminated in the attack on Freetown.

    TF1-388 told you that in 1998 supplies coming from Liberia got larger, increased numbers of boxes of ammunition. That is at page 14035 to 14036. TF1-567 testified at pages 12912 to 12914 that in October to November 1998 Sam Bockarie went to Monrovia to meet with Charles Taylor about retaking Koidu and he came back with a lot of ammunition and guns. He said it was from Charles Taylor to capture Kono.

    TF1-276 at page 1993 also talks about Sam Bockarie coming back with a large amount of ammunition and men and Sam Bockarie saying he had been to Burkina Faso.

    At page 2702 to 2703 you were also told that Sam Bockarie came back with a large shipment of arms and ammunition from Ouagadougou that was sent to White Flower and then Charles Taylor gave part of it to the RUF.

    TF1-360 testified at pages 3163 to 3164, and 3169 to 3179, that he went to a meeting in April or May in Dawa where Sam Bockarie told of Charles Taylor's very big plan to take over the country by attacking Koidu, heading towards Makeni and then on to Waterloo with the main focus to get to Freetown. Taylor said he would send ammunition later for the big mission and that later Bockarie returned from Liberia, sent for the troops to come to Buedu to collect the ammunition for the big plan, and that ammunition for this plan was also received by Superman.

    TF1-334 testified at pages 8397 to 8201 that O-Five's group included NPFL and armed forces of Liberia fighters and that it was explained that Superman had brought these fighters as reinforcements and that these fighters were well-armed with submachine guns, 60 mm mortars and several types of rifles. TF1-334 said that the former NPFL fighters who came in as reinforcements were part of 150 fighters who attacked Kingtom in January 1999.

    You also have evidence at page 2703 that in February or March of 1999, after the Freetown invasion, Sam Bockarie went to Liberia and came back with even more ammunition and TF1-567 tells you at pages 12965 to 12967, and 12991 to 12999, about arms and ammunition coming to Buedu after or when the witness is in Buedu and it is around the time of the Lome peace talks.

    TF1-338 at pages 15156 to 15166 talks about ammunition coming to Issa Sesay from Charles Taylor in 2000 and 2001. So, clear evidence for this form of liability.

    Also the provision of communications equipment, operators and training, very important. TF1-275 testified at pages 4366 to 4367 and 4389 that he was a member of the NPFL and was sent to train RUF radio operators and to set up the radio communications system and that he was given NPFL radios to do this.

    In addition, other personnel were sent. TF1-276 at pages 1962 to 1971 tells you about the circumstances under which he was sent to Sierra Leone to Sam Bockarie, and TF1-045, at pages 20223 to 20224, tells you that 276 took part in the Segbwema access part of the multi-facetted plan to attack Freetown.

    TF1-584 testified that Superman's group went to Koinadugu and there they met a Special Task Force person Senegalese and his 30 men and they had arms. Senegalese said they were sent to Sam Bockarie by Charles Taylor and that Bockarie then had sent them on to Superman. TF1-334 testified at pages 8197 to 8201 that O-Five's group had about 30 Liberian STF and 20 former NPFL, and we have discussed the fact that they were brought for reinforcements, and they were part of the fighters who attacked Kingtom in January 1999, and you recall the other evidence from TF1-334 discussed earlier saying there were NPFL fighters in Freetown.

    So the accused participated also in providing personnel, personnel who were involved in operations in Sierra Leone, personnel without whom it is questionable that the initial conflict could have begun or could have been sustained.

    The accused also participated by providing advice, encouragement and moral support. We have also discussed his endorsement of the Operation Stop Elections in 1996. TF1-516 at pages 6860 to 6868 and 6869 told you that when Foday Sankoh was preparing to go to Ivory Coast Charles Taylor told him to take advantage of the peace accord he was supposed to attend to move outside and get more dancing materials, that is ammunition and other combat-related material.

    TF1-360 said in 1994 Charles Taylor advised Foday Sankoh to avoid towns, live in the bush and concentrate on ambushes. Foday Sankoh did that. That is at page 3050 to 3052. The witness also said that Foday Sankoh and Charles Taylor were in radio contact frequently, that Foday Sankoh always got advice from Charles Taylor. 3052 to 3053.

    TF1-597 talked about Charles Taylor's encouragement and advice to Johnny Paul Koroma after the intervention, encouraging them to go back to try to capture Kono, putting pressure on them to capture Kono. They did move forward and finally captured Kono. This at page 10496 to 10498.

    Now, these are many of the ways that the accused participated, contributed, in this JCE. He also provided bases and safe havens from the beginning. TF1-367 testifies about that at pages 14103 to 14104. TF1-571 at pages 9332 to 9335 and TF1-045 at 20078 to 20082. They talk about being able to move back into Liberia when they were being pressured by the government forces in Sierra Leone and they talked about bases that they had in Liberia.

    The accused also assisted the RUF in relation to diamond dealing, and TF1-338 told you about diamond deals in Monrovia during the period Issa Sesay was in control. You find this at pages 15167 to 15171, 172, 15193 to 15198, 15234 to 15236, but he also provided mining assistance and equipment. TF1-360 told you that Charles Taylor sent two white men to take pictures of mining equipment and write down what was needed. This was at pages 3262 to 3264. TF1-367 said that if mining machines would break down or need repair that this would come from Liberia; petrol and fuel were also provided. This at 14198 to 14203.

    Warnings of impending strikes by ECOMOG jets. TF1-585 told you that Alpha Jet warnings were received from RIA from Sky 1, who was one of Charles Taylor's fighters working at RIA. She told you this at 15887 to 15892 to 15893.

    These are many of the ways, but not the exhaustive list of the ways, in which this accused participated and his participation contributed to the commission of the offences in Sierra Leone.

    When you look at the evidence you really could not have started this conflict in Sierra Leone without his involvement. He provided the means, he provided the men, many of the men, he provided commanders early on. Many of his initial contributions were lasting contributions; the radio equipment, the training the operators ensured efficient use of very limited resources in Sierra Leone, that commanders could communicate reports to each other, they could keep their leadership informed, they could move resources where they were most needed. That was a continuing contribution. The training they received, these people who continued, and many of them became senior leaders in the RUF, that was a significant contribution as well.

    And you have heard testimony about the use of materials that were sent, materials that were used in the initial attacks, materials that were used during the junta period, materials that were used in the post-junta period. The provision of manpower that augmented the RUF and later the AFRC and RUF forces contributed to the ability of these forces to continue to engage in the campaign of terror. A continuing strategic and tactical advice, direction and encouragement provided by the accused enabled them to efficiently and effectively achieve their strategic objectives and the additional assistance also enabled them to sustain and maintain a campaign of terror in Sierra Leone.

    Now, we need to move to the mens rea and of course the mens rea for joint criminal enterprise differs according to the category of the joint criminal enterprise under consideration. When we look at the mens rea, motive is immaterial. Whatever motivated the individuals to act is immaterial. The mens rea is what we look at.

    If we look at the basic form of joint criminal enterprise, then the accused must intend to commit the crimes and intend to participate in the common plan whose object was the commission of the crimes. Now, the Prosecution does allege the basic form of joint criminal enterprise and that all of the crimes that were committed, all the crimes that are charged, all the counts, were intended.

    What manifestations of that intent do we have in the evidence before you? We have already discussed some evidence relating to the accused's intent when we discussed the crime of acts of terror and the element of primary purpose.

    TF1-532 at 5659 to 5664 told you about receiving a new assignment from Charles Taylor to go and train the Sierra Leoneans and to fight in Sierra Leone, but he told you that Charles Taylor had warned over BBC, he had warned that Sierra Leone would taste the bitterness of war. He also told you that Charles Taylor had ordered his command to kill Sierra Leoneans and Nigerians, a manifestation of intent towards civilians.

    You have also heard evidence of massacres by the NPFL relevant because of manifestations of intent of conduct towards civilians, so TF1-399 at page 5919, at page 5920, told you about NPFL massacres at Carter Camp and Dupont Road involving the killing of many civilians.

    TF1-367 told you at page 14080 that in Kakata Mandingos were hunted and killed by the NPFL.

    At page 23594 to 23596 you were told that the NPFL targeted and killed Mandingos and Krahn, manifestations of intent towards civilians.

    TF1-399 told you that Charles Taylor did not punish the NPFL who committed atrocities, that the same instruction from Charles Taylor extended within the RUF as well and that Charles Taylor took no steps to curb ill-disciplined behaviour of fighters. The only action the witness saw him take was that anybody who did not follow his instructions was executed and if you did things without his instruction people would be executed.

    TF1-561 at pages 9861 to 9866 also gave you very clear evidence of the accused's intention, this in regard to the civilian population of Sierra Leone. The witness told you that Foday Sankoh complained to Charles Taylor that the NPFL soldiers were raping women, killing people and looting in Sierra Leone and then later Charles Taylor had a conversation with the witness and said, "Look, your man Foday Sankoh is here and he is saying that the people are destroying his people, looting his property" and then the accused said, "When you talk about a guerrilla war it is destruction and this type of thing must happen if you are fighting a war. You are not eating bread and butter. You are fighting."

    TF1-399 also told you that Foday Sankoh complained about the crimes the NPFL were committing against civilians. TF1-399 passed this on to Charles Taylor and Charles Taylor's response was that Foday Sankoh would get used to it, and that is at pages 5868 to 5869, and we have discussed the advice that Foday Sankoh was given by Charles Taylor to attack Sierra Rutile and terrorise the area, starting with the civilians.

    TF1-532 at page 6785 also told you that there was pattern in the RUF to kill civilians who were in an area that had been occupied by the enemies, or were coming from the direction which enemies had fled or in which enemies were based, and he said this conduct had happened in the NPFL even before it came over to the RUF.

    And, of course, we have the evidence about the plan to attack the locations including Freetown where to save ammunition Charles Taylor said they should make this operation, the attack on Freetown, more fearful than any other operation.

    And of course at P33B, in that document Charles Taylor acknowledged that he knew the RUF had committed atrocities and someone would have to pay. Now, that is a 2000 interview. It doesn't mean that his knowledge is limited to 2000, but in fairness that is a 2000 interview, but he acknowledges at that time that he knew these things were going on.

    TF1-532 at page 5655 testified that Charles Taylor used SBUs as part of guards and fighters, so he himself used them. The witness also testified at page 5649 that Charles Taylor ordered the capture of civilians to be forcibly trained and that included women, men and children.

    TF1-360 at page 3116, and also page 3105, testified that Charles Taylor sent messages to Sam Bockarie to reorganise and to prepare an airfield in Buedu for the diamond industry and to use civilians in the work.

    The manifestations of intent are sufficient to support this mens rea for the joint criminal enterprise.

    The alternative is that crimes are reasonably foreseeable and for this mens rea to prevail, this extended category, then the evidence must indicate that the accused intended to participate in and contribute to the common criminal purpose and, in addition, to be held responsible for crimes that were not part of the common plan but were a natural and foreseeable consequence the evidence needs to show that the accused knew such a crime might be perpetrated by a member of the group and willingly took the risk that the crime might occur by continuing or joining in the enterprise.

    Now, we have discussed the direct form of intent and that the Prosecution has alleged that. We have also alleged in the alternative this secondary form of intent that Counts 2, 3, 4, 5, 6, 7 and 8 were foreseeable consequences of the crimes that were agreed upon in the common plan.

    Now, what evidence do we have to show this reasonable foreseeability? Well, of course you can rely on the evidence we talked about in terms of direct intention as well. We also have evidence of TF1-045 at pages 20109 to 20111, that when Foday Sankoh was in Zogoda he communicated by radio and would brief Charles Taylor on all that was happening in the areas, the areas that were attacked, the weapons that were captured.

    TF1-360 also talks about the area at the time 1994 and testified that Foday Sankoh spoke with Charles Taylor every two or three days and that messages went back and forth and this is at 3049 to 3050. TF1-561 told you, at pages 9868 to 9874, that from the beginning in Gbarnga, throughout his presidency, Charles Taylor constantly listened to BBC news and watched CNN on satellite television, listened to satellite radio. That he listened to Focus on Africa and Network Africa and most international networks. He had a ministry for reporting events so he could keep up on what was happening inside and out of Liberia. Information about the situation in Sierra Leone was in newspapers as well. A lot of accusations about Liberians attacking and killing people in Sierra Leone. Human rights groups were saying things about Charles Taylor's involvement and killing people. He said they were very well-informed.

    TF1-567, at pages 12889 to 12890, testified about hearing over the radio that RUF and Kamajors were amputating hands and feet, this is before the coup in Sierra Leone in 1997.

    P69, which is a United Nations Security Council Resolution of October 1997 called on the junta to end all acts of violence in Sierra Leone. P70, a United Nations Security Council Resolution dated 5 June 1998, called on the rebels to put an end to the atrocities. P125, a newspaper article in a Liberian newspaper, The Daily Times, dated 24/07,98 indicated that rebels captured in Bo, members of the ousted AFRC/RUF military junta, and these captured rebels said that they were carrying out the gruesome atrocities to put pressure for Sankoh's release.

    P130, which is a United Nations Security Council fifth report, dated 09/06/98 also gives notice of crimes being committed. As for the Freetown invasion, TF1-516 said that interviews on BBC were given during the invasion discussing the atrocities, and that during the attack Sam Bockarie made numerous calls to Base 1 and sometimes to 020 and evidence is there that Base 1 was Benjamin Yeaten, 020 Charles Taylor.

    D-62, the April 1998 article, the chronology, is filled with indications of the terror being inflicted on the population by the RUF. It refers to the junta as a brutal regime.

    Sufficient evidence to support a conviction on all counts based on common plan, design or purpose or JCE mode of liability. No need for the Trial Chamber to consider other modes of liability at this stage.

    Now, if we do move to aiding and abetting, then of course we have to look at the requirement that there be some evidence which could support the finding that the accused gave practical assistance, encouragement or moral support which had a substantial effect on the perpetration of the crime. Practical assistance, encouragement or moral support. Now, aiding and abetting may be constituted by contribution to the planning, preparation or execution of a finally completed crime as well.

    Acts of aiding and abetting may occur before, during or after the principal crime has been perpetrated and the location at which the actus reus takes place may be removed from the location of the principal crime. This at the AFRC Appeals Chamber judgment paragraph 71 citing the ICTY Appeals Chamber decision in Blaskic.

    Now, we have talked about the practical assistance that was provided by the accused. There is no need to go back over that again. This assistance also, this aiding and abetting also took the form of encouragement and moral support, which indeed may constitute the actus reus of aiding and abetting, and you find that at the CDF appeal judgment at paragraph 71 to 78, wherein the Appeals chamber specifically upheld the conviction of Kondewa for aiding and abetting through his blessings and speech at the first passing out parade, finding that that speech substantially contributed to the contribution or contributed to the preparation of crimes in Tongo Field, and the Appeals chamber was satisfied it was reasonable for the Trial Chamber to conclude that Kondewa by his words of encouragement aided and abetted the commission of criminal acts ordered by Norman in Tongo.

    The ICTY Appeals Chamber has confirmed that the actus reus of aiding and abetting may be satisfied by a commander permitting the use of resources under his or her control including personnel to facilitate the perpetration of a crime. This is the Krstic appeal judgment at paragraphs 137, 138 and 144. Also the Blagojevic and Jokic appeal judgement at paragraph 127.

    Now, in looking at the second element, that the support of the aider and abetter must have a substantial effect on the perpetration of the crime, it is not necessary to prove a cause/effect relationship existed between the conduct of the aider and abetter and the commission of the crime, or that such conduct served as a condition precedent to the commission of the crime. This is referring to the Blaskic appeal judgment, paragraph 48.

    Now, the Prosecution has also dealt with the substantial contribution of this accused to the crimes that occurred in Sierra Leone when we made that discussion of his participation in the joint criminal enterprise and the evidence is sufficient to meet the standard for this aiding and abetting element as well.

    The third element, the mens rea. The accused either knew the acts would assist the commission of the crime or was aware of the substantial likelihood his acts would assist the commission of the crime. The specificity of the crime aided and abetted, it is not necessary 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 the crimes would probably be committed, including the one actually committed. That is the AFRC Appeals Chamber judgment paragraph 242 and 243 confirming the approach of the Trial Chamber in the AFRC trial judgment.

    Now, the evidence that we have discussed previously is also capable of supporting this element. Evidence of the intent of the accused, of the forms of notice provided to him, are sufficient to support this element vis-a-vis knowledge of the mens rea as well - of the mens rea of the perpetrators as well.

    Now, again, should your Honours feel it necessary to consider more than one form of liability or find the others, the evidence is insufficient, we would move to planning. Now again in the discussion of planning, planning must be a factor that substantially contributed to the commission of the crime. However, there is no but for requirement. You do not need to show that but for the accused's action and the crime or the accused's planning the crime would not have occurred. It is sufficient to demonstrate the planning was a factor substantially contributing to the criminal conduct.

    As for the mens rea, again we have an issue that the accused acted with direct intention in relation to his or her 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 and here we are referring to the AFRC trial judgment at paragraph 237.

    Now, what evidence do we have that the accused alone or with others contemplated designing or designed the commission of a crime at both the preparatory and execution phases? We have already talked about some of that planning; we talked about Freetown. We also have evidence from TF1-360, at pages 3164 to 3166, that in about April or May of 1998 Charles Taylor sent a plan that was to be explained by Sam Bockarie and he was to explain it to the others. And the plan was there was to be this movement, this attack, Kono to Makeni to Masiaka, to Waterloo and he also sent orders for that mission and he sent herbalists who took part in the planning. He says the orders were for the Fitti-Fatta mission to recapture Kono.

    Now, several witnesses have also told you about the plan to take Kono. This appears to be the overall - the overarching plan from the time the junta was pushed out of Freetown, to move back through Kono, capturing Kono and moving on, and this planning begins early in 1998 and culminates in the plan brought back by Sam Bockarie in which 532 tells you Charles Taylor said to use the ammunition efficiently to save ammunition, make the operation more fearful than any other.

    You are also told at page 2412 to 2414 that Sam Bockarie had a phone conversation with Charles Taylor about Operation No Living Thing, and then he came back to a meeting with a small group of commanders and he announced Operation No Living Thing, that nothing should stand in the way of the operation. Anything that stands in the way should be eliminated. Now, he says that those crimes were implied. They were told that nothing should stand in the way of the success of the operation.

    TF1-571 told you at pages 9397 to 9398, 9423 to 9424 and 9430, that Sam Bockarie held a meeting, explained the plan for Operation Free the Leader designed by Charles Taylor in Monrovia. The plan was to retake Kono, go to Freetown, free Foday Sankoh, take over power and that after the meeting Sam Bockarie spoke to Charles Taylor on the satellite phone, briefed him on the outcome of the meeting and assured him the plan would be followed.

    So if we focus on the post-junta period the plan Fitti-Fatta, the plan to take and hold Kono, we have to put that in the context of the crimes that were being committed in the Kono area and throughout the country at that time.

    Now, the planning must be a factor that substantially contributed to the commission of the offence. The planning ensured the efficient use of resources, coordinated effort and further set the framework for the crimes that would be committed and the plan came from someone who had tremendous influence and authority over the RUF and the AFRC and RUF.

    Now, as for the mens rea, the accused acted with direct intention in relation to his or her own planning or with the awareness that the substantial likelihood that a crime would be committed and the execution of that plan.

    We would suggest to you that certainly the plan he devised with Sam Bockarie, the plan that would begin with Kono and move and take Freetown, was a direct intention plan because they were told save ammunition, make it fearful. We know what it means to make it fearful; it means to commit crimes against civilians.

    What about the plan about retaking Koidu, holding Kono? On its face that may not be a criminal plan. However, based on all of the evidence we have discussed with you, the accused had an awareness of the very substantial likelihood that in carrying out that plan crimes would be committed so that the second element of the mens rea would certainly apply to that plan, and if your Honours disagreed with the direct intention regarding the Freetown operation certainly the second prong would apply to that as well.

    Now, for instigating, for the first element prompting. We have had the evidence of TF1-577 about the secret meeting where Jungle and Bah were sent by Charles Taylor, about trying to get hold over Kono and to construct an airstrip. On its face a criminal plan, criminal instigation? No. You also have the evidence of TF1-597 about Taylor saying they should try to capture Kono again pressuring them to capture Kono and that they agreed and moved on that. On its face criminal instigation? No.

    The evidence of TF1-360 again relating to Kono, encouraging them, telling them to stand by Kono. Criminal instigation on its face? No. But now we do of course have the evidence that there were orders involved in these requests or telling them to take Kono; we have the order on Fitti-Fatta. Now the instigation was a factor that substantially contributed to the commission of the crime by others. The law requires there be a causal link between the accused's act of instigation and the perpetrator's commission of the crime. The nexus between the instigation and the perpetration, it is not necessary to prove the crime would not have been perpetrated without the accused's involvement. It is sufficient to prove the instigation was a factor clearly contributing to the conduct of other persons and from that we are referring to the Brdjanin trial judgment at paragraph 269 from the ICTY and the Bagilishema trial judgment from the ICTR at paragraph 30.

    Now, we have talked about much of the evidence that shows this instigation by this accused would be a substantial - a factor contributing substantially to the commission of the crimes by others. His unique position with the RUF, the fact that he was the supplier of all the crucial materiel and support to them, is a position of authority over them in our submission. All of these things indicate that when he prompted or suggested it was taken as more than a mere request but as something that they would act on and in fact on these instigations he did act.

    Excuse me, the RUF and later the AFRC and RUF did act.

    We also have the evidence from TF1-571, at 9353 to 9359, that late in 1996 Foday Sankoh said the RUF had to take orders from Sam Bockarie while Foday Sankoh was travelling and that Sam Bockarie was to take orders from Charles Taylor. He also said at that time that Foday Sankoh introduced Jungle as Charles Taylor's representative and eyes.

    TF1-406 told you at page 925 to 926 that Charles Taylor was the father of the RUF. Sam Bockarie made that clear to him.

    TF1-532 at pages 6226 to 6227, 6228 to 6229 said that Charles Taylor and Sam Bockarie were like father and son, that Sam Bockarie described Charles Taylor as his father, that the RUF referred to Charles Taylor as the CIC; that meant that Charles Taylor had command over the RUF. The RUF belonged to him.

    Of course this is relevant for ordering and for superior authority, these factors that were just discussed. However, they are also relevant for this instigation to show the import of this instigation.

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

    Now, we suggest that in the circumstances the evidence would certainly support this second prong of the mens rea and we suggest, when you look at the evidence about him suggesting holding Kono in the context of the order for the Fitti-Fatta operation, that you could also determine there was a direct intention for crimes.

    You can determine that by this point in time, after all of these years of crimes against civilians in Sierra Leone, that for this accused to instigate holding an area, taking an area, that it must be a direct intention, that the awareness of the substantial likelihood to commit a crime by now has transformed itself in direct intent because he is aware of what the RUF and the AFRC and RUF do. We suggest he intended it, but he is certainly aware of it, and with that awareness he continues to tell them to hold areas, to take areas, to carry out operations.

    Now, as I said, we have discussed the evidence that supports this mens rea. There is no additional evidence that I would suggest would need to be looked at for the mens rea and now, your Honour, we would be moving to ordering so --

  • Yes, I was about to ask is that a convenient time to take the morning break? We are just about out of tape at the moment.

  • It is.

  • Yes, all right, thank you. We will adjourn until 12 o'clock.

  • [Break taken at 11.30 a.m.]

  • [Upon resuming at 12.00 p.m.]

  • Yes, continue, please, Ms Hollis.

  • Thank you, Mr President. Now, if we could turn to ordering and, again, the evidence we have discussed previously, much of that evidence will be relevant to this form of liability as well.

    First of all we have to look at the evidence that the accused was a person in a position of authority. We already have much evidence on that. I have mentioned the evidence of TF1-561, about Charles Taylor's identification of himself as the head of the NPFL, that no-one would have questioned his authority. In addition to that, TF1-561 also said that Charles Taylor was the only boss they the NPFL had. He was the only one making decisions in the group. And he testified about Gambian and Sierra Leonean groups there in Libya, the Sierra Leonean group headed by Foday Sankoh. He said that Foday Sankoh called Charles Taylor chief and that the other groups did that as well and that Charles Taylor was considered the head of the group there in Libya. In addition to my previous cites, we also have the cite at page 9810 to 9815 and 9816.

    If we look at confidential exhibit P-27 [sic] at page 12, 2.2, you are told that Foday Sankoh and Rashid Mansaray left Libya under the auspices of Charles Taylor as their mentor and at page 3 of that document you are told that Charles Taylor was in control of the war and involved in every facet of what happened in Sierra Leone. You can also look at P-54, which is the NPFL command chart, that was significant for the command structure for the commencement of the war.

    TF1-338 testified at pages 15103 to 15106 that at the end of 1991 there were NPFL front line commanders including one Gambian who was an NPFL person called Mon Ami.

    Of course you have the evidence of 571 that I have mentioned, that in late 1996 Foday Sankoh said Sam Bockarie would be in charge on the ground in Sierra Leone, and that Sam Bockarie was to take instructions from Charles Taylor and introduced Jungle as Pa Taylor's eyes on the movement.

    You have the testimony of TF1-338, at pages 15114 to 15116, wherein the witness testified that after Foday Sankoh was arrested in Nigeria Jungle communicated a message to Sam Bockarie from Charles Taylor, and that message said that Foday Sankoh had ordered that Sam Bockarie was to take direct commands from Charles Taylor until Foday Sankoh returned.

    You had the testimony of TF1-516 at page 6854 to 6856 saying that all senior RUF referred to Charles Taylor as chief.

    The testimony alluded to earlier from TF1-597, at pages 10444 to 10447, and then 10448 to 10452, that when Johnny Paul Koroma called Charles Taylor for recognition of the junta Charles Taylor told Johnny Paul Koroma if he had any problems with the RUF to call him, and that when the Iranian embassy was looted and Issa Sesay resisted arrest, Johnny Paul Koroma called Charles Taylor about that. Why? Because Charles Taylor was the Godfather of the RUF so you had to call him and let him know what was going on.

    TF1-274, at pages 21512 to 21516, told you that after the junta was forced from power Sam Bockarie got instructions from Charles Taylor to go to Monrovia for briefings and that he went. He also told you, at page 21516 to 21522, about a trip to Monrovia he says took place in mid-1998 and he said Sam Bockarie, Benjamin Yeaten, Rashid Shabado and others went to meet Charles Taylor as CIC.

    You also learned, at pages 2955 to 2956, that in 1997 to 1999, in that time frame, during that time frame, Sam Bockarie was going back and forth to Monrovia to meet with Charles Taylor and coming back with instructions from Charles Taylor, evidence which could support a finding that Charles Taylor was a person in a position of authority over the RUF and the AFRC, and certainly taken in conjunction with all the other evidence that has been discussed.

    Well, then we have to look at evidence relating to the person in the position of authority using that authority to instruct another to commit an offence. Judgments from the ICTY indicate that using that position to convince or persuade another to commit an offence would also be an instance of ordering when it comes from a person in a position of superior authority. On that we refer to the Blaskic appeal judgment at paragraph 42, the Kordic and Cerkez [indiscernible] appeal judgment at paragraph 30, the Musema trial judgment at paragraph 121 of the ICTR, the Rutaganda trial judgment, at paragraph 39 from the ICTR.

    Also the order need not be given directly to the perpetrator of the offence, and on that we rely on the AFRC trial judgment at paragraph 772 which refers to the Brdjanin trial judgment and the Blaskic trial judgment.

    That is to say, the accused need not be the immediate superior of the perpetrator. It is not required that the order be in any particular form and there we make the same reference. It can be explicit or implicit and there we rely on the Blaskic trial judgment at paragraph 281.

    The existence of the order may be proven through circumstantial evidence. We refer there to the Blaskic trial judgment at paragraph 281, the Akayesu trial judgment at paragraph 480, and the Galic trial judgment at paragraph 171.

    Now, what is the evidence here that the accused used his authority to instruct another to commit an offence? We have already heard some of the evidence of that. In the later years certainly, the order relating to the attack that culminated in the attack on Freetown we suggest was clearly an order that directly indicated committing an offence. You also have evidence at page 2291 to 2292 that in 1998 Sam Bockarie had contact with Charles Taylor and Charles Taylor instructed Sam Bockarie to hold Kono and we have talked about instructions to hold about Kono.

    And we have the evidence of TF1-360 referred to before at 3164 to 3166 about the order for the Fitti-Fatta mission.

    We have the evidence of TF1-360 at page 3105 indicating that Charles Taylor and Sam Bockarie both gave orders regarding attacks and that Charles Taylor ordered Sam Bockarie to prepare an airstrip to be built for the diamond industry and that civilians should be used for the work. We suggest that on its face that would be a criminal order. If not, then we would look at the other form of mens rea.

    TF1-274 gave an indication of an order as well as superior authority at pages 21541 to 21552 discussing Sam Bockarie travelling to meet with Charles Taylor in Monrovia; that Sam Bockarie had originally planned to go to Libya to get arms and ammunition, but in Monrovia there was a change of plans by the CIC, Charles Taylor's instruction, and instead Sam Bockarie now went to Burkina Faso and that on his return Sam Bockarie, Benjamin Yeaten discussed targets to hit in the plan and that the first targets to be hit were Kono and Tongo.

    Now, we suggest that the accused's orders here relating to how to get the arms and ammunition that were later used for the various attacks culminating in the attack on Freetown would, of itself, be a criminal order. If not, the second form of mens rea would certainly apply.

    Now in relation to Operation Free the Leader that TF1-571 talked to you about, that it was designed by Charles Taylor, TF1-045 testified to you, at pages 20514, 20220 and 20222, that Operation Spare No Soul was the same as Operation No Living Thing and also was called Operation Free the Leader, these were the same operation, and that Sam Bockarie instructed for these operations that nothing was to stand in the way. They were to kill civilians who ran, they were to burn and they did this.

    We would suggest to you that when you combine that with Charles Taylor's order that this operation should be more fearful than any other that these operations that were on his plan, and we suggest his instruction, were criminal in nature.

    We suggest that the evidence before you would be sufficient for the next two elements of this form of liability as well, that the order was a factor substantially contributing to the commission of a crime by others. Again, we would point out that the causal link need not be such as to show the offence would not have been perpetrated in the absence of the order.

    And that the accused acted with the direct intention in relation to his own ordering or with the awearness of the substantial likelihood that a crime would be committed in the execution of that order, and in discussion of the mens rea for other forms of liability we have discussed why this mens rea is met either because on its face the order intends a crime, or because in the circumstances that prevailed the accused was aware of the substantial likelihood that in acting on that order crimes within the jurisdiction of this Court would be committed.

    Now, finally, we would wish to turn to the mode of liability of superior authority and the first element that we would look at would again be the existence of a superior subordinate relationship between the accused as the superior and the perpetrator of the crime. Now, this component under 6.3, under this theory of superior authority, also encompasses a test of effective control; that is the material ability of an accused to prevent or punish criminal conduct.

    In terms of the existence of a superior subordinate relationship, the evidence that is before you and has previously been discussed, would be sufficient for that. Now it is important to realise in the context of superior authority that it is not required to identify the principal perpetrator by name. It is sufficient to identify the subordinates as belonging to a unit or group controlled by the superior, and in that regard we refer to the AFRC trial judgment paragraph 790.

    Also, concurrent command does not vitiate the individual responsibility of any of the commanders, and we refer to the AFRC appeal judgment paragraph 262. So if we look at what would constitute effective control we have already discussed much of that in the other evidence before you, but in addition we would ask that you pay particular attention to or additional attention to the evidence of TF1-561, that you only orders from the commander-in-chief, Charles Taylor. Nobody disobeyed an order from Charles Taylor. He would be punished severely, including 561, who could not disobey his orders. That is at 9814 to 9815 and 9849.

    The evidence of TF1-567 that has been cited earlier, that when Charles Taylor called for Foday Sankoh to come to meet with him after they had taken Kono and got diamonds, Foday Sankoh went and he took diamonds and gave them to Charles Taylor. The testimony of TF1-567, which has been referred to previously at 13074 to 13087, that when Charles Taylor said he needed men to open the route between the NPFL and the RUF in 1993, those men were sent.

    The evidence of TF1-360, it has been discussed earlier, that when Charles Taylor "advised" Foday Sankoh to avoid towns, live in the bush and concentrate on ambushes, that is what Foday Sankoh did.

    TF1-516 at 6835 also gives you evidence of the compliance with that "advice".

    The evidence from TF1-274, that Sam Bockarie got instructions from Charles Taylor to go to Monrovia for briefings, and he went.

    TF1-334 told you, at pages 8503 to 8516, discussing a meeting that they had with Charles Taylor, when they went to see him in Monrovia after Lome, Charles Taylor told them at that time that he had been having some problems with Mosquito Spray so he instructed Sam Bockarie to come to Voinjama to repel them and we have cited the evidence that in fact Sam Bockarie did just that.

    TF1-276 at pages 2027 to 2029 talks about the capture of Nigerian ECOMOG in Kono, that they were held in Buedu and that Sam Bockarie said it is an order from Charles Taylor to release the peacekeepers, so Sam Bockarie released them to Benjamin Yeaten and Joe Tuah in Foya.

    TF1-561 told you at pages 9950 to 9962 he discussed Charles Taylor's control over the RUF and he talked about a meeting between Johnny Paul Koroma, Foday Sankoh, Sam Bockarie in Liberia with the chief, referring to Charles Taylor, after the junta period and he said that Charles Taylor made the ultimate decision about the dispute between the leaders.

    TF1-276 at pages 2029 to 2032 talked about the 500 peacekeepers that were taken by the RUF in 2000, and he told you that Issa Sesay went to Liberia with Joseph Mazhar and Jungle and when he came back he had a satellite phone and 50 boxes of ammunition. He then called a meeting and said that Charles Taylor said we should release the peacekeepers over to him in Liberia and now he never had any alternative but to release them and he handed them over.

    TF1-337 at pages 5337 to 5340 told you that Issa Sesay informed his men that Charles Taylor had given him a mission to launch an attack against Lansana Conteh in Guinea, and they did it.

    TF1-561 at page 9967 to 9969 told you that ECOWAS asked Charles Taylor to intervene and ensure the release of peacekeepers, that Charles Taylor did that and they were released.

    Now, there was some discussion about the difficult position that Charles Taylor was in when people came to him and asked him to intervene with the RUF. What we suggest to you is that difficult position or not, those people came to him because they knew he was the man who had the authority to make it happen.

    Now, you also have to look at whether the accused knew or had reason to know that the crime was about to be or had been committed and when you do that you can look at actual knowledge or constructive knowledge and constructive knowledge, whether the superior had reason to know, can be established where the superior had information available to him which would put him on notice of offences committed or about to be committed by his subordinates, would be such as to alert him to the need for additional investigation, for showing that the superior had some general information in his possession which would put him on notice of possible unlawful acts by his subordinates is sufficient to prove that the superior had reason to know. There we are citing the Krnojelac appeal judgment at paragraph 154.

    The information does not need to provide specific information about the unlawful acts committed or about to be committed. There we refer to the Delalic appeals judgment paragraph 238, and the Krnojelac appeals judgment paragraphs 154 and 155.

    All the evidence that we have discussed relating to the notice to the accused, references to his particular intention and state of mind when it came to how to treat civilians, the testimony that Jungle was his eyes on the movement, and the testimony about Jungle's frequent trips, all of the public evidence, the testimony from TF1-561 of Charles Taylor's familiarity with the media and that they were well-informed, all of this evidence makes it clear that this accused had the knowledge, he knew or he certainly had reason to know about these crimes that were continuing in Sierra Leone from the very beginning of this conflict, continuing right through to the end.

    Now, finally, you have to look at the factor that the accused failed to take necessary and reasonable measures to prevent the crime or punish the perpetrators thereof. Now of course it is a twofold duty to prevent as well as to punish, so if you later punish but failed to prevent when you could do so, then that does not relieve you of liability and on that we refer to the Halilovic trial judgment 16 November 2005 at paragraph 72.

    Of course we understand that necessary measures are measures appropriate for the superior to discharge his obligation and reasonable measures are those reasonably falling within the material powers of the superior. What we suggest to you is that this accused was the ultimate superior and that all of the powers lay with him, and if at some point he shared those powers with Foday Sankoh, recall that concurrent authority does not relieve him of responsibility.

    The evidence before you would also support a finding that this element is met, including the evidence of TF1-399 that Charles Taylor did not punish the NPFL who committed atrocities, that he punished people who didn't obey his orders or who acted outside of his orders.

    The evidence of TF1-561, that when there were complaints early on about the crimes that were being committed against the civilians in Sierra Leone, Charles Taylor's response was when you are in a guerrilla war destruction of people, that happens.

    Also we have the evidence that after the attack on Freetown, the prior years of all of the crimes and all of the notice of those crimes, the notice of the atrocities that were committed in Freetown, Charles Taylor called Sam Bockarie to come to Monrovia and when Sam Bockarie returned he had not been punished. In fact, he had been promoted. He promoted him to a two-star general after the Freetown attack for an accomplished mission, and that is at pages 2430 to 2431.

    The evidence that you have before you is that this accused with knowledge, direct knowledge or having information before him sufficient to put him on notice never punished, never prevented and why was that? Because what was happening in Sierra Leone was intended by him. It was within his overall plan. It was the way to achieve the purposes of the joint criminal enterprise.

    There is evidence capable of sustaining a conviction on all counts of the indictment on the basis of the accused's participation in a common plan, purpose or design. All the counts which set out the crimes within the statute of this Court.

    We have also discussed the evidence to support all the other modes of liability, although if you find that (1) there is evidence to support a finding as to one mode of liability then you need not consider the others. And where the modes of liability, such as joint criminal enterprise, or aiding and abetting, envision various ways in which the accused participates or contributes to the crimes, you need only consider if there is evidence that would support a conviction based on that mode of liability for that one particular form of contribution or participation. You need not find that all of the forms which were discussed, all of the forms of participation, or support, were supported by the evidence, but indeed only one of those forms. But we suggest that all of them are supported. We suggest that all of the forms of liability are supported and we suggest that there is no basis upon which the Trial Chamber should enter a judgment of acquittal for any of the counts.

    Thank you.

  • Thank you, Ms Hollis. Mr Anyah, the issues are clear, but did you have anything you wanted to reply to?

  • Mr President, may I have a moment to consult with our client?

  • Thank you. Thank you, Mr President. We are grateful for the time given to consult. We have nothing further at this point. We will just submit the issues before the Court.

  • Yes, thank you, Mr Anyah. Well, the next step obviously is for the Court to deliver its decision on the Defence's Rule 98 motion. We have given some thought to an appropriate date for delivery of that decision and that date is influenced by two considerations: Firstly, as you know, tomorrow is the beginning of Easter and the Trial Chamber is taking an Easter recess up to and including 24 April, so our first day back will be 27 April.

    Now, the other consideration is that before the Trial Chamber can decide the issues raised by the parties it is important that we have the Appeals Chamber's decision on the Defence appeal of the Trial Chamber's majority decision on the pleading of joint criminal enterprise. Now, we anticipate that that will probably be delivered by the Appeals Chamber in the near future but, nevertheless, it is something that must be considered before we reach our decision on the Rule 98 motion.

    Now, taking those factors into account, we have decided that we will need a week after resuming duties on 27 April so that we will deliver our decision on the Defence's motion pursuant to Rule 98 on Monday, 4 May at 9.30 a.m.

    Now, upon delivery of that decision, the Trial Chamber, if appropriate and after hearing the parties, will fix a date for the commencement of the Defence case.

    Unless there are any other matters, we will adjourn until 4 May.

    Madam Court Officer, adjourn the Court, please.

  • [Whereupon the hearing adjourned at 12.35 p.m. to be reconvened on Monday, 4 May 2009 at 9.30 a.m.]