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

Thank you, Madam President, your Honours. As I said, I'll begin with the question you posed at 2 sub (i) part (b), the differences and similarities between aiding and abetting, instigation and ordering as forms of liability under Article 6(1) of the Special Court Statute, and if I could first look at some differences in the actus reus of these three forms of liability. If we look at aiding and abetting, we must prove that an accused provided practical assistance, encouragement or moral support to the physical perpetration of a crime or underlying offence, and in that regard at paragraph 482 of the Taylor Trial Judgement, citing earlier cases of this Court, they indicated that aiding and abetting actually constitutes two discrete activities: Aiding consists of giving practical assistance to the physical perpetrator, or intermediary perpetrator, whereas abetting consists of facilitating the commission of an act by being sympathetic to it; that is to say giving encouragement or moral support to the physical perpetrator or intermediary perpetrator. When we look at actus reus of instigation, what we must prove there is that the accused prompted another to act in a particular way, and in that regard you need only prompt another to act in a particular way and not necessarily to commit a crime or underlying offence per se if the mens rea of instigation is satisfied. The Trial Chamber in the AFRC Trial Judgement distinguished aiding and abetting from instigating by noting that instigating requires more than merely facilitating the commission of the principal offence, which would be sufficient for aiding and abetting. Rather, instigating requires some kind of influencing the principal perpetrator by way of inciting, soliciting or otherwise inducing him or her to commit the offence. So this is one of the nuanced differences between this particular element of actus reus for instigation and aiding and abetting. When we turn to ordering, on the other hand, it must be proven that the accused, a person in some position of authority, instructed another to carry out an act or engage in an omission, and, again, you need only instruct another to carry out an act or engage in an omission and not necessarily instruct them to commit a crime or underlying offence per se, if the required mens rea is satisfied. And in a moment I will speak to why that is the law and why that makes perfect sense when we are assessing liability. I can give an example of this issue of instructing another to perform an act or omission which is not of itself criminal, but may bring criminal liability when you look at the mens rea element. So, for example, after the Junta had been forced from Freetown by ECOMOG forces, Charles Taylor gave a series of orders to capture Kono and to maintain control of Kono, and the Trial Chamber found this at paragraphs 2863, 2864, 3611(ii), 3613 and 6543. Now, of itself, an order to hold an area, to maintain control, to capture an area, is not criminal. However, in this instance, Charles Taylor gave those orders on more than one occasion to a group whose war strategy was one based on a campaign of terror against the civilian population; a group that deliberately used terror against the Sierra Leonean population as a primary modus operandi of their political and military strategy. It is in that context that Mr Taylor gave these orders to capture Kono and to maintain control of Kono, and at the time Mr Taylor gave these directions he was aware of crimes that these groups were committing through a variety of sources, as the Trial Chamber found, through his own daily briefings as President of Liberia, through media reports and sources, and also of course Mr Taylor himself admitting that by April of 1998 he was aware that the RUF was a group engaged in a campaign of atrocities against the civilian population of Sierra Leone. It was in this context that Mr Taylor gave these orders to hold and maintain control of Kono and, in carrying out these instructions, crimes indeed were committed. Now, if we look at other differences in the actus reus for these crimes, we would note that for ordering, as I have said, it must be proven that the one issuing the instruction had some position of authority. Some position of authority, it doesn't have to be formal, it doesn't have to be long-term, it doesn't have to be in a formal chain of command, but some position of authority that would imply an element of compulsion to comply with that order. Instigation requires no position of authority. However, when you're looking at the mode of liability of instigation, a person's position viewed in context may be relevant in assessing their ability to instigate, that is to prompt the crimes, and of course for aiding and abetting there is no requirement of a proof of a position of authority of the aider and abettor. Now, again going back to ordering and this position of authority, this may be a position of authority based on moral authority. Again, it may be short-term. It may be informal. Evidence that those who received the instruction, carried out it out, or attempted to carry it out, is some indication of the position of authority that the person giving the order had. Now, in this case the Trial Chamber found that, in fact, Charles Taylor did hold a position of authority amongst the RUF and the AFRC/RUF alliance, and they found that at paragraph 6973. They also found, at paragraph 6774, that in March of 1997, Foday Sankoh gave an instruction to Sam Bockarie that he take orders from Charles Taylor. Again, the significance is that this adds to Mr Taylor's position of authority; a position of authority he already held because of the centrality of his role in the ability of the RUF and later the AFRC/RUF to continue its campaign of atrocities in Sierra Leone, the many, many ways that he was central to that. The Trial Chamber found two of the modes that he was central to that: Aiding and abetting in a variety of ways, and also planning the bloodiest operation of this bloody, bloody war; the operation that resulted in the attack on Freetown in January of 1999. Now, other differences in the mens rea, or excuse me the actus reus, is that ordering requires a positive act. It cannot be accomplished through omission. You have to positively act in order to provide an instruction. Similarities in the actus reus among these three modes of liability would include the following, and that is there must be a substantial effect as a result of the actions of the accused. When we look at aiding and abetting, the conduct must have had a substantial effect on the commission of the crime, or the underlying offence. The prompting must have been a factor substantially contributing to the conduct of others in committing the offence. The order must have been a factor substantially contributing to the physical perpetration of the crime, or the underlying offence. And, indeed, your Honours have found that in the CDF Appeals Judgement at paragraph 84, and also looking at paragraph 52 of that Judgement, that both aiding and abetting require the actus reus to have a substantial effect on the perpetration of the crime. And your Honours found that a finding that an accused's conduct had a substantial effect for aiding and abetting will therefore normally also satisfy the substantial effect test for instigation. Now, if we also look at other similarities, if we look at ordering, there's no requirement of a formal superior/subordinate relationship. What is required is proof of some position of authority, however that comes about, that would imply an element of compulsion. Certainly for instigation no superior/subordinate relationship is necessary, nor is it necessary for aiding and abetting. Similarly, as to all three, there's no requirement that you prove the existence of a plan or agreement. If we turn to the mens rea, let's look first at the similarities for the mens rea of these three forms of liability. For aiding and abetting, the mens rea would be satisfied if it can be proven that the accused acted, provided the practical assistance or encouragement or moral support, with an awareness of the substantial likelihood that these actions would assist the commission of the underlying offence. In regard to instigation, the similar awareness will be sufficient if the accused has the awareness of the substantial likelihood that a crime would be committed as a result of the prompting, that is to say as a result of influencing the principal perpetrator by means of inciting, soliciting or otherwise inducing him or her to commit the crime. And for ordering, a similar awareness would suffice where the awareness is of the substantial likelihood that a crime would be committed in the execution of the instruction. Now, why would it be that this would be sufficient mens rea to find someone liable for their conduct either as an aider and abettor, an instigator or for ordering certain actions? And the reason for this was actually set forward in the Blaskic Appeals Chamber Judgement at paragraph 42. They were speaking specifically of ordering, but we suggest it applies to all three of these modes of liability. And the Appeals Chamber said, "A person who orders an act or omission with awareness of the substantial likelihood that a crime will be committed in the execution of that order must be regarded as having accepted the crime." If I act, being aware -- if I issue an order, being aware of the substantial likelihood a crime is going to result when they implement my order, I have accepted that crime. And we suggest that that is correct, it is a perfectly correct standard to use. And we also suggest that it would be a standard to use for all three of these forms of liability for the same reason: that by acting with that awareness, I have accepted the crime. And why should I not be liable where I have accepted the crime? Now, there are differences in the other form of mens rea for these three forms of liability. If we look at aiding and abetting, the mens rea could be satisfied if it was proven that the accused knew - knew - that his acts provided practical assistance, encouragement or moral support to the perpetration of the crime. So it's a knowledge element. It's a knowledge standard. Whereas for instigation, the mens rea could be satisfied if it could be proven the accused intended that a crime would be committed as a result of his act, of his prompting, and so here we have an intention standard. And the same is true for ordering. The mens rea would also be satisfied if it is proven that the accused intended that a crime or underlying offence be committed as a result of his act, of his instruction. So we would suggest these are the principal similarities and differences when we look at these three forms of liability. And in that regard we suggest that these forms of liability are not mutually exclusive, that they can and have been in many cases, in the ad hoc tribunals they have been found in their cases, aiding and abetting has been found, as well as instigation, as well as ordering. And why would that be important? That would be important on a matter that I'm going to address next, and that would be important to describe the full criminal culpability of the accused's conduct, to have a full picture of the criminality of the accused's conduct.

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