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.