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

Then, Madam President, your Honours, I will turn to the last question that I would address and that is your question at 2(v) of the scheduling order. The question is whether the sources of law identified in Rule 72 bis (ii) and (iii) establish that uncorroborated hearsay cannot be relied upon as a sole basis for incriminating findings of fact. Of course Subrule 72 bis (ii) indicates that, "Where appropriate, as one of the sources of law you may rely upon, other applicable treaties and principles and rules of international customary law may be applied in this Court," and Subrule 72 bis (iii) indicates, "You may also apply general principles of law derived from national laws of legal systems of the world." Let me summarise the Prosecution's answer to this question, and it is in two basic parts. First, no, sources of law identified in Rule 72 bis (ii) and (iii) do not establish that uncorroborated hearsay cannot be relied upon as a sole basis for incriminating findings of fact. Rather, we suggest to you the issue is really whether, viewing the proceedings as a whole, the trial was fair. Further, we suggest to you in this regard Mr Taylor's reliance on the European Court of Human Rights cases, which were in turn relied upon by the Yugoslav Appeals Chamber in its Prlic decision at paragraph 53, that this line of cases is no longer the law of the European Court of Human Rights. Secondly, and very importantly, even if there were such an absolute rule prohibiting such reliance, which we suggest there is not, this would not be a justiciable issue in this case because the Defence has made no showing that a conviction - a conviction - in this case has been based solely or in a decisive manner on uncorroborated hearsay. So let's turn to our first position, that customary law does not establish such a prohibition on the use of uncorroborated hearsay. We suggest that, even in an instance where there was such reliance, there would be no error as long as the proceedings have been conducted fairly. And that reliance on such evidence solely or in a decisive manner for a conviction is not an error of law, and the Trial Chamber has the discretion to rely on it in its assessment of evidence. Now, we suggest to you that it can fairly be said that the different approaches to the use and reliance on hearsay very often are reflective of the difference between common law judicial systems and civil law judicial systems, although today many common law systems have broadened their laws in relation to the use and reliance on hearsay. And, again, when we look at custom, we reflect back on your Honours' language in the CDF Appeal Judgement and that is, "In determining customary international law with reference to State practice, the State practice should be extensive and virtually uniform", and we do not have that today. If we look at our own rules of evidence, and if we look at the jurisprudence of this Court and the ad hoc tribunals, our rules of evidence do not prohibit the admission of hearsay evidence, and the jurisprudence allows reliance on hearsay evidence to prove elements and to support convictions. And if we look at various systems throughout the world, again we see this divide over whether you can use hearsay, to what extent and how can you rely on it? Some jurisdictions allow it, others don't, so there is no uniform practice here to establish customary law at this degree of detail. So what of Mr Taylor's arguments, then, that it is error to use allegedly uncorroborated hearsay as a basis for, in their words, a directly incriminating fact, basing their arguments on the Prlic decision, paragraph 53, which in turn relies on a line of cases from the European Court of Human Rights? Mr Taylor's reliance fails, we would suggest, for many reasons. First and foremost because this is no longer the law of the European Court of Human Rights, but even if it were the law today, Mr Taylor's reliance would fail. If we look at the Prlic decision, the Prlic Appeals Chamber rightly found that European Court of Human Rights' jurisprudence has no binding effect on the tribunal. But it did find that this line of jurisprudence was helpful to it - it was valuable to it - in determining this issue of reliance on evidence that had not been subject to cross-examination. But when we look at that line of cases on which the Prlic Appeals Chamber relied and upon which Mr Taylor relies, we see something that is very important. And that is that line of cases says no conviction - conviction - can be based solely or in a decisive manner on uncorroborated or uncross-examined evidence. It does not speak of directly incriminating facts. It does not speak of specific incriminating facts, but conviction. And we suggest that's the standard that you would have to apply in assessing whether it would be error to rely on uncorroborated hearsay. Even under that line of cases, only where the conviction relied solely or in a decisive manner on such evidence would there be, under those line of cases, an unacceptable infringement on the accused's rights. And we also have to note that this limitation on reliance on this evidence that has not been cross-examined that, in looking at solely or decisive, the European Court of Human Rights has made it very clear that those terms have to be defined very restrictively. And if we look at the Al-Khawaja case, at paragraph 131, then we see how the European Court of Human Rights says you have to define it. You have to define it restrictively, and here is what they say it means. "If we say 'solely,' what that means it is the only evidence against the accused for that conviction," the only evidence. That's what "solely" means. The more problematic issue seemed to have been how do you interpret "decisive” in a decisive manner? And the European Court of Human Rights tells us that, "'Decisive' means more than probative. It means that without the evidence the chances of conviction would lessen and the chances of acquittal would increase. It means more than that. Rather, 'decisive' should be understood as indicating evidence of such significance or importance that it was likely to be determinative of the outcome of the case." So we're talking about conviction, and we're talking about very restrictive and precise definitions of "solely" or "in a decisive manner." Now, as I said, we suggest to you that there has been no showing of any such reliance for a conviction in this case and I will discuss that in more detail momentarily. But most importantly, let's go back to this line of cases cited in Prlic that simply no longer reflects the law of the European Court of Human Rights in respect of this issue. Rather, subsequent decisions of this Court, most notably the December 2011 decision of the Grand Chamber of the European Court of Human Rights in the case of Al-Khawaja and Tahery versus The United Kingdom, have made it clear there is no absolute rule barring a conviction based solely or in a decisive manner on evidence not subject to cross-examination. And they also made it clear that it would not be correct for the European Court of Human Rights to ignore the specificities of the particular legal system concerned, and its particular rules of evidence in particular. And we would suggest, again, that they quite rightly noted that Article 6 of the European Convention on Human Rights does not lay down any rules of admissibility. Nor, we suggest, does Article 1 of the International Covenant of Civil and Political Rights. In that regard, we note that our rules of evidence expressly allow the admission of any relevant evidence, and the only provision addressing exclusion of evidence is Rule 95 which requires exclusion of the evidence only where its admission would bring the administration of justice into serious disrepute. So the question is not whether a Trial Chamber relied or based a conviction solely or in a decisive manner on uncorroborated hearsay. Rather, as the European Court of Human Rights Grand Chamber has made clear, the question is whether the proceedings as a whole were fair. They also made clear that, in making that determination, they will look at the proceedings as a whole, and they will look at the proceedings as a whole not only in respect of the rights of the accused, but also in respect of the interest of the public and the victims that crime be properly prosecuted. And we suggest that this current European Court of Human Rights law is consistent with the jurisprudence of this court and of the ICTY and the ICTR. Now, in regard to the principle that all evidence against an accused must normally be produced in his presence, the Grand Chamber found two general requirements arising from this general principle. They noted that at paragraph 119 of the Al-Khawaja case. They said the first principle is there must be a good reason for the non-attendance of the witness, and in relation to the second principle they said, again, it's not an absolute rule that there can be no conviction based on these -- such evidence, but where there is such a conviction then you have to look to determine if there were sufficient counterbalancing factors to ensure it was a fair trial. So those were the two principles that they derived from that general principle about confrontation. Now, the counterbalancing factors that they considered in that case were the counterbalancing factors in the laws and procedures of the United Kingdom and they included the following: That the trial must allow evidence relevant to the credibility or consistency of the maker of this out-of-court statement to be introduced. You have to allow them to bring in that evidence to attack the maker of that out-of-court statement, and of course that was done in this case, in the Taylor case, both in cross-examination and, we suggest, in the Defence's case in-chief. Also, a judge has to have the discretion to refuse to admit evidence if satisfied that its exclusion substantially outweighs the case for admission. Now, that is not our Rule 89, your Honours did not put that balancing test in there, but the inherent ability to admit evidence is with the judges and so we suggest that this was met as well. And the judges may stop the proceedings if satisfied at the close of the Prosecution case that the statements on which the Prosecution case was based wholly or partly, or that the statements on which the Prosecution case were wholly or partly on hearsay, if - if - they are convinced that the statement is so unconvincing that considering its importance to the case conviction would be unsafe. And certainly the judges in this Special Court have the ability to do that with the "no case to answer." They have the ability to do that on their own. And finally they looked at the general discretion to exclude evidence if it would have such an adverse impact on the fairness of the trial that it ought not to be admitted. And, again, the judges in this Court certainly have the ability to do that. And we suggest that these counterbalancing factors are consistent with the approach that the Trial Chamber took in this case. If we look at the Trial Chamber Judgement, at paragraphs 156 to 206, we have an extensive discussion of the law and the Trial Chamber's approach to the evaluation of evidence. The Trial Chamber in particular looks at hearsay evidence at paragraphs 168 and 169, how it should treat it, the factors it should consider, and then at paragraphs 212 to 397 the Trial Chamber goes on to make credibility assessments of certain specific witnesses and also assessments of the authenticity of certain documents. But what we suggest to you is that, as to counterbalancing factors in this Court, as in the court -- the Yugoslav Tribunal and the Rwandan Tribunal, the most important counterbalancing factor that you have is that it is the judges whom the Court in the Horncastle case referred to as "the gate-keepers." It is the gate-keeper judges who decide not only the admissibility of evidence, what will be allowed and what will not be allowed, but it is these gate-keepers - these professional judges - who assess each bit of evidence and determine what weight, if any, should be given to it. So it is no longer the law of the European Court of Human Rights that you cannot rely on uncorroborated hearsay as a sole or decisive basis for a conviction. Rather, in such circumstances you have to look at factors that would ensure a fair trial, and we suggest when you conduct that review here you will find that there were sufficient factors to ensure a fair trial. Now, let's move to our second point in response to your question and that is, even if the European Court of Human Rights were still following the jurisprudence cited in Prlic, this would not be a justiciable issue in this case because there has been no showing that the Trial Chamber relied solely or in a decisive manner on any uncorroborated hearsay as a basis for any conviction - conviction - in this case. And you can't expand the findings of those courts to include directly incriminating facts, or specific incriminating facts. Conviction, that's what it is, and that's what you would have to look to in this test. What we suggest is that, when you look at the Defence allegations of uncorroborated hearsay, what you really find is the Defence simply disagreeing with the assessment of the evidence by the Trial Chamber. And in that regard it's helpful to remember that the primary responsibility for assessing and weighing the evidence is for the Trial Chamber and that that will only be disturbed on appeal if no reasonable fact-finder could have reached those conclusions, or if the findings were wholly erroneous, and we suggest that is not the case here. Now, if we look at just a couple of examples in ground 1 where the Defence alleges this reliance on uncorroborated hearsay, it may be helpful. And in paragraph 27 of ground 1, Mr Taylor asserts, "The Trial Chamber finding that Charles Taylor instructed Sam Bockarie to release freed Pademba Road prisoners to Buedu was based on one witness's uncorroborated hearsay," and here they were referring to the evidence of Dauda Fornie. But when you look at that assertion on its face it's false, first of all because the Trial Chamber found that Dauda Fornie's evidence was corroborated by the evidence of TF1-516, and that's at paragraph 3588 of the Judgement. Now, Mr Taylor makes a second assertion in paragraph 27, but it is also unsubstantiated when you look closely at the record. And at paragraph 27 Mr Taylor asserts that this finding about Taylor ordering that the freed prisoners be moved to Buedu, that this finding led directly to a conclusion about Mr Taylor's responsibility for planning and aiding and abetting crimes in and around Freetown. This is a misstatement, or a misinterpretation, of the Trial Chamber Judgement. As to the aiding and abetting allegation, when we look at the Trial Chamber's findings regarding legal responsibility for aiding and abetting - and this is at paragraph 6907 to 6953 - there's no direct reference to this finding. Under sub-part (a) of those findings relating to the physical elements of aiding and abetting operational support, this is paragraph 6925 to 6937, there is no specific reference to this finding. Well, is there any reference at all then? Indirectly there is, and that is at paragraph 6928 where the Trial Chamber finds that Charles Taylor provided satellite phones. This is a finding that he provided satellite phones to Sam Bockarie and that providing such phones enhanced the capacity to plan, facilitate or order RUF military operations during which crimes were committed. And the Trial Chamber in that same paragraph found that Charles Taylor and Sam Bockarie communicated by satellite phone in furtherance of the Freetown invasion and other RUF/AFRC military activities during which crimes were committed. Now, that was the finding about satellite phones and the importance of satellite phones. At footnote 15552 of this paragraph, the Trial Chamber cites back to its discussion, deliberation and findings under "Operational Support: Communications, Satellite Phones," at paragraphs 3667 to 3731, and if you look at that section of the Judgement, the Trial Chamber is examining the Prosecution's allegation that Taylor provided RUF leaders, including Sam Bockarie, with satellite phones that enabled Charles Taylor to plan, facilitate and order RUF activities during which crimes were committed. During its assessment of evidence on this issue at paragraph 3672, the Trial Chamber discusses Dauda Fornie's evidence, but broader evidence, evidence in the most significant part about communications between Sam Bockarie and Benjamin Yeaten after the 6 January invasion, and notes Fornie's evidence about frequent contacts, sometimes two or three times a day, via satellite phone, during which Sam Bockarie would ask Benjamin Yeaten for advice and provide him with sitreps; with reports about the situation on the ground. In that paragraph, almost as an aside, the Trial Chamber notes the Fornie evidence about the instruction from Benjamin Yeaten to bring freed prisons to Buedu, Benjamin Yeaten saying this instruction was Charles Taylor's. Now, Mr Taylor ignores that in this section under "Operational Support: Communications, Satellite Phones," in addition to Fornie, the Trial Chamber notes the evidence of many other people: Varmuyan Sherif; Jabaty Jaward; Mohamed Kabbah; TF1-585, Karmoh Kanneh, Abu Keta and many others. And Mr Taylor also ignores that in its deliberations on "Operational Support: Communications, Satellite Phones," which is found at paragraphs 3722 to 3728, the Trial Chamber refers to the evidence of multiple witnesses. So Mr Taylor's assertion that this finding about this instruction led directly to a conclusion about Mr Taylor's responsibility for aiding and abetting is simply not founded in the Judgement. If we turn to planning, the same can be said to be true of that assertion, that this order to move these freed prisoners led directly to a conclusion about Charles Taylor's responsibility for planning crimes in and around Freetown. This is also, when we look closer, without merit. Again, looking at the Trial Chamber's findings on legal responsibility for planning at paragraphs 6954, 6971, there is no direct mention of this order. That's sub-part (a), "Findings on the physical elements of planning." This is paragraph 6958 to 6968. If we do look at paragraph 6960, we have the Trial Chamber recalling that in December '98 and January '99, Sam Bockarie was in frequent contact via radio or satellite phone with the accused, either directly or through Benjamin Yeaten, to update him on the execution of plans and the progress of a Kono and Freetown operation. So that's their finding there. It has nothing to do with an order to bring freed prisoners to Buedu. But at footnote 15593, the Trial Chamber cites as support for this finding the section of its Judgement entitled, "Military operations: The Freetown Invasion, Allegation that the Accused Directed the Freetown Invasion," and this is a very extensive part of the Judgement. It covers paragraphs 3487 to 3618. Now, Mr Taylor ignores this very extensive review, deliberation and findings that take place in this section, and he ignores that this Trial Chamber's review of this evidence covers a review of the evidence of multiple witnesses. He also ignores the Trial Chamber's detailed deliberations covering paragraphs 3553 to 3605. And he ignores that in its deliberations, the Trial Chamber first addressed our allegation that from the commencement of the December 1998 offensives to the withdrawal from Freetown, Charles Taylor, either directly or through Benjamin Yeaten, was in communication with Sam Bockarie regarding the progress of the Freetown attack. And then secondly it examines our allegation that Charles Taylor gave specific directions concerning the operation. And it is in this second subsection about specific directions that the Trial Chamber talks about this order to bring the freed prisoners from Freetown to Buedu. So it has nothing to do with the planning, and, in fact, if you look at its findings, it finds there was only one order of the ones that we allege that it could find proven beyond reasonable doubt, that was this one, and they said, "You know what, that's insufficient to show that he gave these orders and controlled the Freetown operation." That was the significance of that finding. It had nothing to do with the finding about his planning of this operation. So Taylor ignores that in its deliberations in the first subsection about these alleged communications, the Trial Chamber reviews the evidence of multiple witnesses, and he also ignores that in its findings under this section, the Trial Chamber entered separate findings and summary of findings regarding the order to move freed prisoners and the evidence and findings regarding the contact between Sam Bockarie and Charles Taylor or his subordinates, including Taylor giving advice and getting progress reports. It makes separate findings about those. They also ignore that, in paragraph 3618, the Trial Chamber's only mention of the order to move the freed prisoners is in relation to a finding there was insufficient evidence to prove Charles Taylor had control over the Kono to Freetown operation. And Mr Taylor also ignores the detailed discussion of the Trial Chamber in its findings in relation to the unique relationship between Charles Taylor and Benjamin Yeaten, his most ruthless and most loyal subordinate in Liberia, and that discussion and those findings are found at paragraphs 2570 to 2629. So when you look closer at these allegations in paragraph 27, they're simply not supported by the Judgement. They are basically allegations in search of facts. The facts do not support it. The second example is at paragraph 28, and if I could quickly point to that one. At paragraph 28 of ground 1, Mr Taylor alleges that the finding that Charles Taylor supplied arms to Sam Bockarie in 1998 is based on the evidence of eight witnesses whose evidence basically comes from one source, Sam Bockarie. Now, remember when we're talking about Sam Bockarie as the source of these out-of-court statements, the first requirement of the principle that the European Court of Human Rights talk about is there has to be a good reason why that witness isn't there. Well, for Sam Bockarie there's a very good reason. He's dead. He's dead and he was killed by Charles Taylor's forces in Liberia, so we have to keep that in mind when we are thinking about these statements of Sam Bockarie. But, again, Mr Taylor's assertion in paragraph 28 ignores the detailed discussion, assessment and findings the Trial Chamber engaged in in determining whether, as we alleged, Charles Taylor was a source of matériel during Sam Bockarie's leadership from February 1998 to December 1999, and they engage in this analysis at paragraphs 4855 to 5031 of the Judgement. They ignore that the Trial Chamber's assessments were set out in two subsections, the first one being alleged deliveries of matériel from Charles Taylor to Sierra Leone, paragraphs 4855 to 4965, and the second subsection of alleged trips by Sam Bockarie to Liberia in 1998, paragraphs 4966 to 5031. And it is in the second section that you will find the paragraphs that the Defence refers to, paragraphs 5021 and 5022. And Mr Taylor ignores that their findings about Charles Taylor being a source of this matériel is based on their assessments and findings as to both subsections, and that in subsection (1) regarding alleged deliveries, they evaluate the evidence of multiple witnesses who have different bases for their evidence, for their information, and this is thoroughly tested at court and it is discussed in these findings. They also ignore the evidence in this regard of AB Sesay, at paragraphs 4920 and 4957, and what does he say? He says that, at a meeting between Taylor and the AFRC leaders in August of 1999, Mr Taylor himself confirmed to AB Sesay and others at the meeting that he had supplied arms and ammunition, as well as food, to the rebels to overthrow President Kabbah. They ignore that completely in saying that this finding about Charles Taylor being a source is based on only eight witnesses and they really are only relying on Sam Bockarie. They also ignore the Trial Chamber's deliberations at paragraphs 4943 to 4964. And in those findings the Trial Chamber says that 20 witnesses testified supplies/matériel were brought by intermediaries of Charles Taylor and that their accounts were complementary in most respects. They also found at paragraph 4944 that four Prosecution witnesses testified to being directly involved in the transport of military equipment from Liberia to the RUF/AFRC, and they named them, Joseph Marzah, TF1-579, Varmuyan Sherif and Abu Keita, and that Joseph Marzah and Varmuyan Sherif said they got their orders directly from Charles Taylor to take those supplies. And they ignore the finding at paragraph 4946 that 13 witnesses corroborated the account of TF1-579 and Marzah that Charles Taylor was the source of that matériel. They ignore the finding also at paragraph 4947 that two of the witnesses seem to rely on a general belief that Charles Taylor was the source, but that they were corroborated by others who gave concrete foundations for their beliefs. Seven said they had been told it was Charles Taylor, either by Sam Bockarie or by the intermediaries sent by Charles Taylor, and others indicated that indeed these intermediaries were the subordinates of Charles Taylor. They also ignore paragraph 4949 where the Trial Chamber looks at two documents which it says bolsters the witnesses' testimony, and that is a letter, Prosecution Exhibit 066, wherein Sam Bockarie thanks Charles Taylor for providing assistance and asks for more, and a Black Guard report, Black Guard being an intelligence unit of the RUF, talking about what invaluable assistance Charles Taylor had provided. Even in the second section, Mr Taylor's analysis ignores all but two of the paragraphs. He ignores the reliance on multiple witnesses. So the Trial Chamber relied on multiple sources of evidence, not all of it hearsay, and not all of the hearsay based on Sam Bockarie. So, your Honours, what we suggest to you in answer to your question 2(v) is that, no, there is no customary law that prohibits the use of this evidence, that there was no error in this case number (1) because there's been no showing that a conviction was based solely or in a decisive manner on uncorroborated hearsay and, number (2), even if there were such a showing, the procedural guarantees, the counterbalancing factors, in this case show very clearly that Mr Taylor received a fair trial, that the Trial Chamber properly assessed the evidence, that these gate-keepers, these professional judges, properly evaluated each item of evidence in determining the weight that it would be given. We suggest that viewing this trial as a whole, it was a fair trial, sufficient factors were present to ensure fairness even if uncorroborated hearsay were a sole or decisive factor for conviction, which we say it was not. If your Honours have no questions, I have completed my responses to your questions.

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