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

Good afternoon, your Honours. Some time around March or April 1998, according to the Trial Chamber, unidentified soldiers killed eight civilians in the area of Payema, just north of Koidu Town in eastern Sierra Leone. The Trial Chamber was not able to ascertain or determine precisely who the soldiers were, but did infer that they must have been members of the AFRC or the RUF. One of the victims was according to the Trial Chamber at paragraph 723, and I quote, "... shot dead while making bricks for his house because he refused to give the soldier money or diamonds." The Chamber found that these killings were not only unlawful, but that their primary purpose was to terrorise the civilian population. Now, this is just one of the crimes for which Charles Taylor is deemed to be criminally responsible by way of aiding and abetting, according to the Trial Chamber. Not only was he found guilty of this crime, but indeed of every other crime charged in the indictment. Now, what is the connection between this crime and Charles Taylor's actions as found by the Trial Chamber? What is the substantial contribution that Charles Taylor made to the unlawful killing of these eight civilians and the crime of terrorisation? The only basis for the Chamber's finding is that, more than seven months prior to this killing in Payema, Charles Taylor allegedly permitted one of his associates to act as an intermediary between the junta government and an unidentified third party for the sale of arms in September 1997. That, your Honours, is the connection. That, your Honours, is the substantial contribution as found by the Trial Chamber. Despite the absence of any finding by the Trial Chamber that these soldiers had ever received weapons from that shipment which the Chamber found could have occurred any time between September and December 1997, as early as September 1997, more than seven months before this crime, no finding that any of these soldiers received ammunition or guns from that shipment. No finding about anything that occurs during those intervening seven months, no finding beyond a reasonable doubt that those soldiers had not obtained ammunition from some other source, despite the inherent implausibility, your Honours, that those soldiers, whoever they were, still had ammunition from that shipment seven months earlier, despite the absence of any discussion that between September 1997 and April 1998 there had been a substantial ECOMOG intervention which had forced the rebels into flight, despite the absence of any discussion that the operation in which these crimes are committed had not even been conceived in September 1997. Despite all that, your Honours, the Trial Chamber still convicted Charles Taylor of aiding and abetting the deaths of these eight individuals. This, your Honour, is at the heart of the reasoning of the Trial Chamber. This is the reasoning that the Trial Chamber applies time and again in respect of all of the crimes with which he was convicted of aiding and abetting. Indeed, your Honours, the Trial Chamber goes even further, unlike in this particular case where the Trial Chamber at least attempted -- although I suggest it failed to make adequate findings connecting the supply of arms in which Charles Taylor allegedly participated and the crime -- on some occasions they dispense with that requirement quite expressly and blatantly. And thus, your Honours, we see at paragraphs 5716 and 5721 of the Judgement, in respect of the crimes in Freetown, the Trial Chamber, instead of bothering to make specific findings or deeming that it had to make specific findings connecting crimes, specific crimes, to specific supply by Charles Taylor, instead they rely on this concept of "an amalgamate of fungible resources." In other words, if you put into that amalgamate of fungible resources and from that pool of fungible resources a crime can be said to have been committed you've established a substantial contribution. Indeed, the Trial Chamber then, as if to reach the ultimate logic of this reasoning, says at one point, "Any assistance towards these military operations of the RUF and RUF/AFRC constitutes direct assistance to the commission of crimes by these groups." Now, your Honours, this reflects -- this reasoning reflects a deep and fundamental, we say, misunderstanding of the notion of aiding and abetting. The actus reus of aiding and abetting, as the Appeals Chamber of the ICTY and ICTR have repeatedly underlined, and not only underlined in theory but applied in practice, is that the assistance must be connected by -- to a specific crime and there must be a substantial contribution to that crime. Aiding and abetting is not merely JCE with a lower mens rea, and yet this is precisely the reasoning that was adopted by the Trial Chamber. Indeed, your Honours, the concept is so broad that it would in fact encompass actions that are today carried out by a great many States in relation to their assistance to rebel groups or to governments that are well known to be engaging in crimes of varying degrees of frequency, and I regret to say that the Prosecutor is wrong to say that is unusual for crimes to be committed in bloody civil wars. Unfortunately, it is all too common. It is going on and it has been documented as going on now by both sides in Syria. It is going on in Pakistan. It is going on in Sudan. It is going on in many other countries that are supported in some cases by the very sponsors of this Court. Is it the case? Is it the law that these governments are guilty of aiding and abetting crimes that are reported by Human Rights Watch, Amnesty International and by the United Nations itself? Your Honours, I propose, with that introduction, now to address specifically the questions that you have posed and I'm very grateful for the questions that you've posed because I think they do put the finger on many of the vital questions that you are going to have to adjudicate, and given the breadth of the subject matter, the complexity, and perhaps my lack of eloquence relative to the Prosecution, I am going to rely on a PowerPoint presentation, which I hope will be available to your Honours shortly, and I will be addressing you on questions 1, 2, 3 and 4, in roughly that order. The first question that your Honours asked of the parties was whether the Trial Chamber correctly articulated the actus reus elements of aiding and abetting liability under customary international law and the differences and similarities between aiding and abetting, instigation, and ordering as forms of liability under Article 6(1) of the Statute. Now, I think it's a very -- at the risk of ingratiating myself, your Honours, it's a very good question because it appears to suggest that what your Honours are seeking is some insight into what might be the essential characteristics of access -- or accessorial liability in general. In other words, what might we be able to infer about the very difficult questions arising from aiding and abetting from two other forms of accessorial liability prescribed by Article 6(1), namely, ordering and instigation. I propose, your Honours, not to repeat what has been already said in our submissions to you in writing, where we elaborately cover the various elements of these three forms of liability. Instead, I propose to just present to you certain highly salient characteristics in respect of aiding and abetting as they relate to the other two forms of liability. Now, ordering and instigating are unlike aiding and abetting in the sense that they both involve acts that in themselves reflect a criminal objective. As John Locke would say, the actions themselves speak about the intention of the perpetrator. Thus, ordering involves the accused giving an instruction to another person under the accused's authority to commit a crime. Now, contrary to the Prosecution's contentions, according to the prevailing jurisprudence of the ICTY, ordering does indeed require that the order encompasses or actually be for the commission of a crime. Thus -- and this is illustrated very clearly in the Dragomir Milosevic case which was decided, I believe, in 2009, which was after the Blaskic decision, and there the Trial Chamber convicted Dragomir Milosevic in ordering in respect of the use of air-modified bombs, which the Trial Chamber found to be intrinsically involving indiscriminate attack against civilians. On the contrary, he was not found guilty of ordering in respect of his orders to continue a campaign of sniping against the city of Sarajevo. Why? Because some of the sniping was lawful, even though it was well known by that stage, according to the Appeals Chamber, to the accused that, on the other hand, some events of unlawful targeting were taking place. Nevertheless, the Appeals Chamber acquitted Dragomir Milosevic in respect of the sniping and convicted him in respect of the use of the fuel air explosives. Ordering also requires, in addition to that, that the order substantially contribute to the crime, although I must say, your Honours, it's hard to imagine how an order which is given to somebody who, by its very definition, must be under the authority of the orderer, how strong of a role substantial contribution will often play in respect of ordering. The traditional view as well, your Honours, is that the mens rea for ordering is direct intent and nothing less than direct intent. There is not very much scope, if you think about the requirements of the actus reus, for dolus eventualis. Now, we have discussed the other elements of ordering in our Defence response brief at paragraph 16 to 46, and we rely on those submissions. Now, instigation, like ordering, also involves a communicative act and the communicative act is prompting the perpetrator to commit a crime. The difference with ordering, however, as the Prosecution has correctly stated, is that the addressee of this communicative act is not under the authority of the accused. Thus, as articulated in the Media case from the ICTR, the instigation must be a factor substantially contributing to the conduct of another person committing the crime. Again, this element is the same in respect of ordering, but unlike ordering, the substantial contribution requirement is often essential to determining liability, and famously in that case, your Honours, the Appeals Chamber quashed convictions by the Trial Chamber in respect of alleged acts of instigation that were in the form of radio broadcasts and newspaper articles issued before the beginning of the genocide on 6 April 1994, even though some of those broadcasts specifically named individuals to be targeted. Nevertheless, the Appeals Chamber said that's not substantial contribution if it's prior to 6 April. The Chamber reached the alternative conclusion in respect of radio broadcasts after 6 April, thus illustrating the importance of the substantial contribution element in respect of those -- in that case. And, your Honours, we have more fully set out the elements of instigation at paragraphs 56 to 71 of the Defence response submissions. Now, the unique aspect of aiding and abetting that distinguishes it so fundamentally from instigation and ordering is that the actus reus can actually be quite easily fulfilled quite unconsciously by the alleged aider and abettor. Consider, for example, the case of a chocolatier who sells a tasty treat to a paedophile, who then uses that paedophile to trap a child, to abduct a child. As it turns out, that potentially, in fact, there's no reason why in a particular case it might not fulfil the actus reus of aiding and abetting. But this isn't the only type of circumstance or the only type of activity that potentially could be assistance to a crime. Preparing a tax return, giving someone a ride in a taxi, providing someone with a hammer, giving them an axe, giving them even a weapon, your Honours, all of these forms of assistance or products that could be given either can be used perfectly lawfully, or at least non-criminally, or even the most apparently innocent products and services can be used for assisting a crime. The question under these circumstances is, how do we define the limits where there is nothing whatsoever intrinsic in the nature of assistance which tells us what is aiding and abetting and what is not? I would suggest to your Honours that when we put the question of aiding and abetting in the broader context of the two other forms of accessorial liability that you've asked about, I would suggest that it's exactly this contrast between ordering, instigation and aiding and abetting that helps us understand why the Appeals Chamber in the late 1990s in the ICTY sought to include specific direction as a form or as an element of the actus reus of aiding and abetting. Now, over time that element has fallen into disfavour, and recently in the Mrksic case it was abandoned, but nevertheless, your Honours, what we see is an attempt to find an analog, a characteristic of the service or the product that somehow would help us understand how is it similar to the case of instigation or ordering in terms of conveying to the Court, as the Prosecution says, John Locke's illusive intent. John Locke can infer intent quite easily in the case of an order or instigation. Can John Locke infer the intent so easily in the case of providing a service or providing a product? No, your Honours, it depends dramatically and fundamentally on the context and it depends dramatically and fundamentally on the purpose, the intent with which the service or product is provided. Now, your Honours know from having read ground 16 of our appeal that the Defence has a very clear answer as to the mens rea that ought to apply in respect of aiding and abetting, and we say that there are many legal systems that apply that purpose standard, including, as you know, the ICC, and we have fully explored in our briefs the relationship between 25(3)(c) and Article 25(3)(d), and I won't bore you with that discussion. You have not asked about it and I don't propose to go over it again. Suffice it to say, however, that where knowledge is the standard requirement in many countries, the standard of knowledge that is usually applied is the requirement that the person providing the service know that, in the ordinary course of events, to a virtual certainty, the assistance provided will be used in the commission of a specific crime, and that is the crime for which a person can be held responsible as an aider and abettor. Now, I won't discuss this further now, but I'll be happy to address mens rea further in some later stage in the context perhaps of the question that you have asked about purpose, but your Honours, for the moment, in a nutshell, the purpose of this overview of ordering, instigating, and aiding and abetting is to show that there is that illusive factor in aiding and abetting that is not present in the other two forms of accessorial liability and it requires greater caution in defining how we assess the limits, the appropriate limits, of this form of liability. Now, your Honours asked whether the Trial Chamber correctly articulated the actus reus elements of aiding and abetting under customary international law, and to state our answer succinctly at the outset, the standard articulated was not erroneous but the standard applied was erroneous. And we have set out rather extensively the basis for this submission, in particular at grounds 21 and 34 of our appeal, where we have characterised the error as one of law and fact, or as a misdirection of law and fact. We have also argued in respect of each ground of the -- in relation to the material elements of aiding and abetting where this error had a significant significance in respect of factual findings. Now, many of our submissions -- of my submissions to follow will rely on the case law of the ICTY and ICTR and that is so because we believe that that case law indeed is indicative of customary international law in this area. Now, the definition of the material elements of aiding and abetting were given by the Trial Chamber at paragraph 482, and there you see it on the screen in front of you. The definition, as your Honours will note, does not contain a requirement of specific direction. The Defence's position is that customary international law does not compel, and for this I appreciate the position of my learned friend opposite, does not compel the inclusion of what he would describe as a separate or distinct element of specific direction in the actus reus. It continues, however, in the view of the Defence, and apparently also in the view of the Prosecution, to be a factor that is very near decisive or determinative in respect of assessing substantial contribution. We also, or perhaps in the alternative, depending on your Honours' view of the overall structure of aiding and abetting, maintain in respect of ground 16 of our brief that purpose is in fact indeed a requirement that flows from customary international law. And our view is that specific direction has performed a role at the ICTY and ICTR that is analogous, even if not directly reflecting that requirement. Now, the Trial Chamber's assertion that the assistance in question must have had a substantial effect upon the commission of the underlining offence here at paragraph 482 is correct. However, when it came to applying this test of the facts, it applied a very different notion of that concept, at least as it has been applied at the ICTY. And the difference is foreshadowed in a slight difference of expression between that adopted by the Trial Chamber and that adopted at the ICTY, and I very deliberately have chosen for your Honours' consideration the definition of the actus reus adopted in the Mrksic case, which is widely regarded as, in a sense, the broadest formulation of aiding and abetting that has been pronounced so far at the ICTY, and what you will see or note in respect of this definition relative to that provided by the Trial Chamber is the emphasis that the perpetration -- that the support or the aiding, whatever it may be, must be to the perpetration of a specific crime and which has a substantial effect upon the perpetration of the crime. And just to dispense with one issue immediately, we agree with the Prosecution that there are other formulations or variations on this standard. Sometimes the Appeals Chamber at the ICTY uses the formulation "substantially contribute," and just in respect of "specifically aimed" or "specifically directed," we would suggest that there's no fundamental difference between the requirement that there be a substantial effect and that there be a contribution which is substantial, except to say that perhaps phrasing it as a requirement that there be a contribution which is substantial, eliminates any possible ambiguity that one is just talking about effects one way or the other. What is required is a positive causal influence by the assistance on the perpetrated act. Now, where does that language about assistance to a specific crime come from? Is it just something that they made up in Mrksic? Is it just something that has to do just purely with aiding and abetting? No, your Honours, it doesn't. It actually comes from a very specific source. There's a very specific lineage to this language, and this language in fact derives from the Tadic Appeal Judgement from 1999, which rather than addressing aiding and abetting was addressing joint criminal enterprise, but it was the very first application of joint criminal enterprise at the ICTY, and in doing so the Appeals Chamber evidently was very concerned to differentiate these two concepts, and this is where you see for the very first time this emphasis laid on the requirement of the assistance being to the perpetration of a certain specific crime. In other words, JCE is being described as "The form of liability that deals with assistance to an organisation, and aiding and abetting deals with the form of liability concerning direct assistance or abetting, encouragement towards a specific crime." Here we see the two formulations side by side, just to highlight how it is that the Trail Chamber defined the actus reus of aiding and abetting relative to that set forth by Mrksic. What we see in the Trial Chamber's Judgement is that there be moral support to the perpetration of a crime or underlying offence that has a substantial effect upon the commission of the underlying offence, as compared to the Mrksic definition which again refers to a specific crime. Now, your Honours, this does not rise to the level of a legal error. We have not suggested that it does. There's no requirement that a Trial Chamber explain every last implied element in a particular concept, but what we say is that this at least gives you an indication of where the Trial Chamber may have started to go wrong in terms of how it applied the concept in question. Now, the other sort of error that perhaps falls below being a legal error which requires that the Judgement be quashed is the Chamber's failure anywhere to explain, despite applying this concept to convict Charles Taylor of every crime alleged in the indictment, its failure anywhere to explain precisely what it considered the substantial contribution to a specific crime to mean. It never explained precisely what standard it was purporting to adopt, and it's not enough, your Honours, to just say, "Well, there's a standard. We've articulated the standard properly on page 500. 1,500 pages later, we're now applying that standard without any further elaboration or discussion." It's quite possible to define a legal element correctly and then say the determination of a legal element is then to be applied on a case-by-case basis, but at the same time to take into account jurisprudence that helps to understand and explain what that very general or broad concept might mean, and this the Trial Chamber did not do, and had the Trial Chamber explored the question, it would have found that in fact there are -- there is jurisprudence on this very question. Now, the first significant discussion of the content of substantial contribution to be found in the ICTY jurisprudence concerns the conviction of Jokic for his contributions to killings following the fall of Srebrenica, and the Appeals Chamber in that case explained some of the features of Jokic's participation that it considered significant for determining that he indeed had substantially contributed to those crimes. And amongst the criteria that we see set out in that Judgement are, first of all, the general pronouncement that specific direction, while not any longer necessarily a separate or distinct element of aiding and abetting, nevertheless continues to form an implicit part of the actus reus of aiding and abetting, but the Chamber then included that element amongst other elements that it considered salient, and amongst the other elements were its finding that Jokic's acts of assistance concerned co-ordinating, sending and monitoring resources to actually go and commit the crime, and that was for the Chamber a salient consideration in deciding whether the actus reus had been met. It also found that he had -- well, in the end, it ultimately reached the conclusion that indeed his assistance was substantial. In Ndindabahizi, by contrast, the ICTR Appeals Chamber quashed a conviction where the accused had advocated the killing -- had openly and directly advocated the killing of Tutsi at a roadblock six days before that crime took place. So the accused, who is a minister in the government, walks up to a roadblock where there are a group of Interahamwe and says, "Kill Tutsi." At trial, the accused was convicted of aiding and abetting that crime six days later. On appeal, the Appeals Chamber said, "Well, there's no particular error of law here, but your application of the actus reus standard to the facts is so wrong that no reasonable trial chamber could have reached that outcome," and they quashed the conviction. The reasoning that seemed particularly relevant to the Trial Chamber is two-fold: First, the Appeals Chamber's assessment that other people had been killed at the roadblock prior to the intervention of the minister. Now, it's often stated in the jurisprudence that there is no cause -- and the Trial Chamber said it as well, there's no cause and effect requirement in respect of the actus reus of aiding and abetting, and that's true, your Honours. There's no simplistic cause-and-effect requirement. The effect need not be solely caused by the aid provided by the aider and abettor, but it would be equally untrue and false to suggest that causation is irrelevant to the question of aiding and abetting and to the actus reus of aiding and abetting. That's not true. The very words "substantial contribution" indeed imply that there is a causation analysis at work, and what we see here in the ICTR Appeals Chamber Judgement is a very explicit expression of that notion, is it really true that the minister who shows up and who gives this pronouncement, saying "Kill Tutsi," what is the causal significance of that in relation to a killing that occurs six days later? And the Appeals Chamber says, "No, that is not enough. That is not substantial contribution." One of the reasons is that killings were already ongoing. The second reason is that there was no specific evidence that the perpetrators who heard the accused speaking were the same ones as who killed the victim. And the Trial Chamber did not in that case say, "Well, the minister's words, being a man of great reputation in the community, would have been heard by others. They would have been passed on to others." The Appeals Chamber did not rely on that reasoning. They decided that, in the absence of specific evidence connecting the words specifically to the crime against the victim, that there was no aiding and abetting. The third case I've already alluded to in respect of the actus reus of aiding and abetting, and this is the Media case, and it's really important to remember how odious the pronouncements in the broadcasts and the newspapers were. This was hate speech, and not only was it hate speech in general, there were specific injunctions to target specific individuals prior to 6 April 1994. And the accused, by the way, were not only convicted of instigation at trial. They had also been convicted of abetting, so there's no distinction arising here as between instigation and aiding and abetting. In any event, in both cases the substantial contribution requirement arises, but nonetheless there can't be any distinction arising from that. The Appeals Chamber reversed the convictions for all speech that occurred before 6 April, not because it was protected, not because it wasn't hateful, not because it didn't call for outrageous things, not because the accused didn't have the intent to see these heinous acts carried out. No. The aiding and abetting conviction was reversed on the grounds that there was no demonstrable connection, causal connection, between those -- between that speech and the crimes, and this despite the fact that the Trial Chamber understood that that speech did, in a sort of general sense, contribute to an atmosphere of violence; it contributed to an atmosphere of menace. And notwithstanding that finding, here we have the Trial Chamber saying that in respect of those killings, the connection, the evidence of a link, is tenuous. Why? In part because the period of time between the act, the alleged aiding act, and the crime, as the Trial Chamber here says, is relatively long. And why is that lapse of time so significant? Because in the absence of an ability to show that there were no other causal influences during that lapse of time, there is indeed a danger of imbuing artificially a causal influence to a dramatic event, even many months before, in respect of the later crime, and here we have the Appeals Chamber saying that's a factor for which trial chambers should be very careful and alert. And that, your Honours, was a finding that was made, as I have mentioned, even where the Appeals Chamber accepted that there was probably a link - probably a link - between the appellant's acts and the genocide, owing to the climate of violence to which the publication contributed and the incendiary discourse it contained. It is a temptation, when one looks at this case to say, "Well, the accused clearly is a bad person. The accused called for this violence. The accused in some sense contributed to this violence." Well, there's sort of a liability crucible, so to speak, in the form of the climate of violence to which the accused is contributing, and we know in some sort of historical sense that that climate of violence, yes, indeed, it did have a causal influence on the deaths that followed 6 April to the genocide, and here we have the Appeals Chamber saying that may be true. Historically, there may be a judgment on these individuals, but they're not guilty of aiding and abetting. So what can we infer from this very brief overview of the case law? Well, at least preliminarily we can see that there are some criteria that help us in understanding what does substantial contribution mean - substantial contribution to the specific crime - and those criteria include the directness of the aider's involvement in the crime itself. That was, in particular, the case in Blagojevic. The strength of the demonstrable causal connection between the act and the crime, again illustrated in all the cases we've looked at, and finally the importance of the temporal connection to the crime or, in the alternative, the lapse of time. Now, your Honours, this is, I would suggest, one of the thorniest questions that you could possibly have thought of. It is a difficult question. It's a difficult question for several reasons. One reason is that specific direction, as I'm sure you know, has now been effectively, at least by the majority view, abandoned at the ICTY as a separate and distinct element of the actus reus, and that's significant because now the Appeals Chamber, and for that matter all of the Trial Chambers at the ICTY and ICTR, having seen that this element is reduced from a legal element down to an adjectival description, it relieves the requirement of providing a very clear definition of what specific direction actually might mean. And I would suggest to your Honours, when you look at all the submissions that have been presented both by the Prosecution and the Defence in our briefs, you'll see that there are some competing concepts as to what that concept might mean, what actually is specific direction. On the one hand, you have the Defence arguing that specific direction is a fairly broad notion and that, to some extent, you cannot examine whether an action is specifically directed unless you consider the mental state, the intention of the accused. The Prosecution appears to adopt the view that that is categorically impermissible, that somehow specific direction is imminent -- immanent in the act itself and that there's no need, in fact, it's impermissible to attempt to look at the intentions that somehow lie behind the actions. So the question that you've posed is extremely difficult, given -- and to be quite honest with your Honours, there's never really been a clear discussion or explanation by any Trial Chamber or Appeals Chamber at the ICTY or ICTR clearly explaining what they consider the concept to mean. So your question is very -- extremely difficult for that reason. I would propose the following start to an answer. One thing that we can say if we look at ordering and instigation is that, without the actus reus of ordering and instigation, you don't even reach the substantial contribution question. The substantial contribution question would be cut off. There couldn't be a finding that an order or an instigation had a substantial contribution if there was no order or instigation. You'd first have to make that finding of an order or instigation. Similarly, if we analyse the question by analogy, if we say that there is no intrinsic definition to aiding the actus reus of aiding and abetting other than the context, namely, that it provides assistance, and if we say that the specific direction element is designed to in some way identify those acts which can have an impact on a crime sufficient to lead to the actus reus, then similarly I would argue that indeed with the Prosecution, if that's the concept of specific direction that is applied, indeed, you could not have substantial contribution without specific direction. If that's the concept of specific direction, then indeed you couldn't. The problem, however, your Honours, is that different systems in the world use different analyses - global analyses - of mens rea and actus reus to reach the final result, and if you had a very narrow concept of specific direction, and the Prosecution seems to have a narrow concept, if you say you cannot look at intent in order to determine whether or not assistance is specifically directed or not, then I would say on the contrary that it is possible to find that a particular assistance is not specifically directed, but does indeed have a substantial effect on a crime. One example would be the case of a Head of State who welcomes Omar Al Bashir to their territory and who does not execute the arrest warrant at the ICC, knowing full well that crimes are ongoing in Sudan, and who, by virtue of omitting to serve that arrest warrant and execute it, Mr Bashir is permitted to return, on the assumption that indeed he continues to commit crimes, at least from a linguistic sense, there is an arguable case that perhaps he has -- the leader has engaged in a -- there is a substantial effect between non-executing the warrant and subsequent crimes. It would be very perverse to then say that the leader is guilty based on a knowledge standard, based on a foreseeability that Mr Bashir might return and continue those crimes. So if there is a weak specific directions concept in actus reus, that nevertheless permits a finding in the absence of specific direction based on substantial contribution, then we say, and this is our argument in ground 16, that there must be a compensating notion in the mens rea that can prevent liability in those circumstances. So the short answer to your question that you've posed is no, if we have a broad concept of specific direction and yes if we have a narrow concept. Now, your Honours, I propose to deal with questions 3(b) and question 4 together, if I may, and the questions that you have asked are whether the Trial Chamber's findings meet the specific direction standard, and for the purposes of answering this question, I'm going to assume what I've previously described as the broad notion of specific direction and whether acts of assistance not to the crime as such can substantially contribute to the commission of the crime for aiding and abetting liability, and finally, whether the Trial Chamber's findings meet the "as such" standard. Your Honours, in our view, the case law is not unclear. There's no absence of authority. There's no vacuum in respect of this issue. On the contrary, it is clear, both in respect of actus reus as well as mens rea, that the assistance must be provided to a specific crime and which has a substantial effect upon the perpetration of that specific crime. Now, this formulation doesn't say anything about the specific instrumentalities. It's possible that there could be some indirectness in the form of the effect, but at the end of the day the requirement is that there must be a substantial effect on the specific crime in question, and each of the cases mentioned previously, Nahimana, Jokic and Ndindibahizi, reflected such a detailed discussion. The Trial Chamber's findings in no way reflect that it enquired into that issue, that it applied its findings in respect of specific crimes that are committed. In fact, it did the opposite. Now, this is, in fact, the Trial Chamber's factual finding in respect of the crimes, and you'll notice that this is at paragraph 729 of the Trial Judgement, and this is in the middle of about a thousand pages of factual findings about the commission of particular crimes, and we see here the Trial Chamber making the finding that indeed rebel soldiers from the AFRC and RUF killed eight individuals who were not taking an active part in hostilities. I'll just give you a very brief opportunity to read this particular passage, which is from 5551. Now, what we see here, your Honours, is the Trial Chamber's attempt to characterise its understanding of the evidence that showed that supplies -- let's be very precise about this -- ammunition allegedly supplied by Charles Taylor was connected to this event in Payema. And notice here how the Chamber reverses the burden of proof. It says, "As there is no evidence that the junta obtained further matériel after the Magburaka shipment in late 1997, or that the RUF/AFRC were able to capture a significant amount of supplies in the retreat from Freetown." So, first of all, what you see right there in the beginning of that sentence is a reversal of the burden of proof, unequivocal, absolutely clear. The Charles Taylor Defence is saying there's no evidence to support the contrary, ergo, we assume the contrary or we take the position that the contrary existed. And notice the standard of proof that they apply. It is likely that the only supplies that the retreating troops had access to were from the Magburaka shipment. Only likely, your Honours? Is that proof beyond reasonable doubt? Is the Chamber here making a finding that indeed those soldiers, whoever they may have been, were using ammunition supplied by Charles Taylor? Well, the Chamber considered that it -- notwithstanding the fact that it reversed the burden of proof and made a finding based only on a standard of likelihood, it said, "The Chamber can safely infer that the Magburaka shipment was relied on in both Operation Pay Yourself and subsequent offensives and was used to commit crimes during those operations until the RUF/AFRC was able to capture or otherwise obtain alternative supplies of matériel." Now, what's interesting - and this is going to come up in two slides down the road - is here we have the Trial Chamber, I think quite correctly, being alert to the possibility of other sources of supply. Here the Trial Chamber is saying, "We have considered whether there are other sources of supply. We find that no such sources of supply have been established by the Defence, ergo, those supplies can be attributed to the Magburaka shipment," but just as a question of the mode of reasoning, at least the Trial Chamber here is indeed looking at the sources of supply in order to see whether or not it can determine that these soldiers had supplies from the Magburaka shipment. Again, the specific action of Charles Taylor in respect of the crime is that he allowed someone to broker an agreement. Even that, I suggest to your Honours, in and of itself, may not reach the standard of a substantial contribution. Allowing a third party, even an associate, to engage in an arms transaction with some third party, with no further findings as to the involvement of Charles Taylor, that's not sufficient. Even assuming that all of those weapons were indeed used in crimes, in our respectful submission, even that is not sufficient to show substantial contribution. Now -- and I would suggest that in fact Charles Taylor's involvement in this transaction is very remote and minor. Now, what precisely is Charles Taylor's knowledge at this time in September 1997? And, indeed, it's important to remember, when the Prosecution claims that the Defence imposes artificial time-frames on the events analysed by the Trial Chamber, the Trial Chamber must make a finding that the actus reus, whatever it may be of aiding and abetting, is performed with the relevant mens rea, whatever that mens rea may be, but it's the case that the mens rea must be assessed at the time of the actus reus. There surely can't be any dispute about that. So when the Trial Chamber finds that in September 1997 the actus reus was performed by Charles Taylor, then there's a need for a finding as to what the mens rea was in September 1997, and if you look at the Judgement carefully, what you'll see is great difficulty in ascertaining what kind of statement the Chamber is making about Charles Taylor's mens rea when, and you'll see that the Prosecution and Defence even have contrary interpretations, about four or five paragraphs of the Judgement, as to whether or not there's an increasing knowledge by Charles Taylor in respect of the crimes or whether it's supposedly static throughout the entire period. We say that clearly there is an increasing finding of knowledge by the Trial Chamber, but the ambiguity in and of itself shows you the kind of findings that the Trial Chamber made. Now, what could Charles Taylor have known, according to the Chamber? What did the Chamber unequivocally say it could find about Charles Taylor's knowledge, intent, at the time of the Magburaka shipment? Well, it said that as at August 1997, according to the Chamber, it was recognised that any military support could facilitate the commission of the crimes described above. Taylor, as part of the ECOWAS Committee of Five, would therefore have been aware of the likelihood that the AFRC/RUF would commit similar crimes in the future, and as early as August 1997, the accused knew of the atrocities being committed against civilians in Sierra Leone by the RUF and the RUF/AFRC forces and of their propensity to commit crimes. Propensity is an inclination or a tendency. Now, at this early period in August 1997, I would suggest to you these findings that I've just presented to you show that the Chamber isn't able to say anything more than that there is something between a mere possibility and a probability that crimes -- some crimes at some time would be committed in the future, but what we see in the evidence is not -- is an evaluation not of any specific information - and this is really the more fundamental error - we don't see an analysis of any specific information about knowledge of specific crimes that may be substantially assisted by the ammunition. The Chamber is instead, as the Prosecution has repeatedly done throughout its presentation, viewed knowledge in the aggregate as a general possibility or a general likelihood or even a general certainty that, in the aggregate, somewhere along the way a bullet is going to be used in a crime. Now, your Honours, this reasoning is not sufficient. It does not reflect the requirements of aiding and abetting. It does not reflect the requirement of substantial contribution that's been applied in previous cases at the ICTY. There's no finding as to the identity of the perpetrators. That's the first question mark. There's no finding as to the instrumentalities used. There's no finding that those instrumentalities came from Charles Taylor. There's no finding that those instrumentalities had any impact, much less a substantial impact, on the decision of these three unidentified perpetrators to commit the crime. There's no discussion of the impact of this assistance on the specific crime of terrorisation as opposed to the killings. There's no discussion of any intervening events. There's no discussion of the lack temporal proximity. There's no finding that Charles Taylor provided the assistance with the purpose of facilitating this crime. There's certainly no finding that the assistance was definitely going to be used for that crime, and there's no finding that Charles Taylor provided the assistance knowing that the junta government would be deposed, that an operation called Operation Pay Yourself would come into being and that this crime would be committed as part of that operation. None of that had occurred at the time that Charles Taylor allegedly engaged in the actus reus. Now, we say, your Honours, that there are none of the indicia of substantial contribution that you see in previous cases. There is a remoteness between Charles Taylor's alleged involvement and the crime, remote in time. There is a weak causal connection. It's no more, even by the Chamber's own account, than likely that the supplies were used in the crime, and there's absolutely no temporal proximity. And just to step back again, your Honours, the point here is that we're seeking to define the outer limits of a form of accessorial liability where there's no inherent -- there's nothing inherent in the assistance itself that predisposes it towards the commission of a crime. Bullets can be used either criminally or lawfully, and in the context of a bloody civil war, there is no finding in this Judgement at all about what percentage of those bullets were used in crimes versus what percentage were used lawfully, and there isn't one finding that one bullet provided by Charles Taylor was used in any crime. Now, your Honours, the event that I just described concerned an attack in Kono in the first quarter of 1998, and the question is whether or not similar or the same reasoning applies in respect of other findings in the Trial Judgement that Charles Taylor aided and abetted crimes, and of course at the heart of this indictment and the Judgement against Charles Taylor is the attack on Freetown, and the question is: How is it, according to the Trial Chamber, how is it that Charles Taylor aided and abetted crimes in Freetown? Now, the Chamber's reasoning, and this is a pared down explanation, schematic, as to how the Chamber reaches this conclusion, is first of all that Charles Taylor allegedly facilitates the Burkina Faso shipment. Now, your Honours, I apologise for again inserting the word "allegedly," but I must simply state that our position continues to be that there was not sufficient evidence to find that Charles Taylor was involved in all or any of these transactions, and we have briefed you fully on that in our submissions and I won't go into it any further, but I simply draw it to your attention. Now, the Chamber's reasoning was that Charles Taylor facilitates the Burkina Faso shipment in November 1998. Ammunition from this shipment is then used by RUF forces to take Kono and Makeni. Now, the Trial Chamber - and this has been a point of contention between the Defence and the Prosecution in its submissions - the Trial Chamber made no express finding that any crimes were committed during that offensive in Kono and Makeni. Now, what the Prosecution attempts to do in the absence of such specific findings -- and I remind you that there are hundreds of pages of specific findings of crimes. What the Prosecution does is says, well, maybe there were no express findings, but nevertheless there's some evidence that maybe some crimes were committed, and perhaps the Trial Chamber occasionally makes reference to those crimes. Well, that may be, your Honour, but there never was a proper finding of any crime committed during that offensive on Kono and Makeni, and in a Judgement of this length and this exhaustiveness, I suggest that that should be deemed - considered - determinative. It's a small point, but I nevertheless want to draw your attention to the fact that what we have is a major offensive. Notwithstanding the Trial Chamber's assertion that we have a continuous constant campaign to commit crimes, here you have one the central offensives of the entire war and the Trial Chamber makes no findings of crimes having been committed during this offensive. The third element in the Chamber's reasoning is that AFRC forces then are simultaneously during this attack on Kono and Makeni moving from the north, south towards Freetown. I'm sure your Honours are very familiar with all of this scenario from previous cases, but I apologise if I'm taxing your patience in going through it. The Trial Chamber found that these forces - the AFRC forces - were not in any way assisted by Charles Taylor. They did not have ammunition, they did not have weapons, they did not take instructions from him in respect of the attack. Under SAJ Musa, they commenced that attack and pursued that attack independently. Now, Musa was subsequently assassinated, and then there was some discussion about the extent to which Charles Taylor then has some control over the forces, but the point is that the forces proceed all the way into Freetown without Charles Taylor's assistance at all. That's the Chamber's finding. So the finding that Charles Taylor could be responsible for crimes in Freetown has nothing to do, according to the Trial Chamber, with the AFRC offensive. Now, RUF forces don't arrive in Freetown until the third week of January, so all kinds of crimes are allegedly going on in Freetown during this time. Charles Taylor is convicted of those crimes and the basis, presumably, of that conviction is the arrival of Rambo Red Goat at some unspecified time before the third week of January with, I believe, about 60 fighters. No findings that those fighters engage in crimes, no findings that those fighters give their ammunition to the AFRC forces who were found to be committing crimes by the Trial Chamber, no connection, no specific connection, at least as far as the Trial Chamber's findings are concerned, in respect of specific crimes committed in Freetown, and yet Charles Taylor was convicted of those crimes. The Trial Chamber then goes on to say, "… and Charles Taylor is also responsible for the crimes committed during the retreat from Freetown." And why is that? Well, even though most or a great deal of the ammunition that was possessed by the RUF forces when they arrived on the doorstep of Freetown in the third week of January, even though some, or at least a substantial amount of that matériel, had been captured from ECOMOG during the non-criminal offensives in Kono and Makeni. Nevertheless, we should treat that matériel as if it had been supplied by Charles Taylor. And why should we treat the matériel captured from ECOMOG as if it had been supplied by Charles Taylor? We should treat it as having been supplied by Charles Taylor because, without his assistance, there never would have been an advance on Kono and Makeni and therefore he's responsible for that ammunition as well. And that finding is based even on the fact that the offensive against Kono and Makeni was not conducted criminally. Your Honours, I suggest to you it is an astounding assertion for the Trial Chamber to have made, and this is where they come up and where they use the amalgamate of fungible resources theory, which I suggest to you is the absolute opposite; it is the antithesis of making a finding that there has been a substantial contribution to a specific crime. What the Trial Chamber is saying, in effect, in suggesting that all you need is proof that there is an amalgamate of fungible resources to which the accused contributed, what the Trial Chamber is in effect telling you is it doesn't need to make specific findings. It doesn't need to do that. You have an organisation here that has a body of resources that have been provided to it. It doesn't matter that there's no specific proof linking specific resources to specific crimes. No need of that, your Honours. We have the amalgamate of fungible resources theory, and the ultimate expression of that is this next quotation from the Trial Chamber, where it says, "Throughout the indictment period the operational strategy of the RUF and AFRC was characterised by a campaign of crimes against the Sierra Leonean civilian population, including murders, rapes, and other crimes. The Trial Chamber therefore considers that any assistance towards these military operations of the RUF/AFRC constitutes direct assistance to the commission of crimes by these groups." Now, the question that you asked and that I'm still in the process of answering was whether or not the Trial Chamber's reasons reflect an analysis of whether Charles Taylor made a substantial contribution to the crimes as such or whether they addressed the standard that the assistance be specifically directed to the crimes, and I suggest to you that this paragraph that you have in front of you is the fullest expression of the antithesis of that approach, because according to the Trial Chamber, if you further -- if you do anything to perpetuate the existence of an organisation that you know in part, aside from many other activities, you know in part engages in criminal actions, then that alone is sufficient to find you guilty of assisting any and all crimes committed by that organisation. This is the liability crucible applied by the Chamber, and the liability crucible is fine in respect of joint criminal enterprise. That's precisely what joint criminal enterprise is addressed towards. But here what you have is the Trial Chamber not applying an intent of -- a direct intent standard, merely a knowledge standard, and once you have this finding on the screen in front of you, there's no further inquiry necessary. It doesn't matter that the assistance you provide may perfectly well be used for legitimate or non-criminal purposes as well, or in the alternative. It doesn't matter whether there is proof that the specific assistance was used in any crime in particular. It doesn't matter that the form of liability just described is in fact JCE liability. It doesn't matter that the role of the accused may be extremely remote and minor, as in the case of the Magburaka shipment. This raises the question, if this is the Chamber's ultimate position on aiding and abetting, why bother with findings, the findings that I alerted you to earlier in respect of Payema, where the Chamber says, "Well, actually, we've considered the possibility that ammunition came from other sources and rejected that possibility, albeit by reversing the burden of proof and adopting an impermissible standard of proof"? But at least they were being looking for it, your Honours. At least, in that part of the Chamber's reasoning, they said to themselves, "We need to determine whether or not the ammunition used in this crime, we need to determine beyond a reasonable doubt that it came from Charles Taylor." Here you have the Chamber saying, "Well, actually, we didn't mean that. We don't need to determine that at all. You have fungible resources theory and you have this organisational liability theory, and once you have that, that's enough. Aiding and abetting is satisfied." I suggest, your Honours, that aiding and abetting was never designed for that purpose. Now, one of the questions that your Honours asked, and I very much appreciated the question because it is one that neither party exhaustively addressed, is whether or not the Trial Chamber's findings meet the mens rea standard of purpose. Now, what exactly might "purpose" mean? And the Prosecution threw down the gauntlet and said, "What exactly does the Defence mean by 'purpose'?" Well, we didn't make this up, your Honours. It's not my devising. It's not because I'm particularly smart or clever and came up with a novel concept unknown to international criminal law. The purpose standard is in the ICC Statute, Article 25(3)(c), which in its terms covers aiding and abetting, and if the Prosecution is correct in saying, "Well, you know, there's the knowledge standard in various countries and Canada applies it in a particular way and there's the draft code of crimes." If that's all true and the issue was settled in 1996, then why on earth is the purpose standard in the ICC Statute? Why was there such controversy at the Rome conference regarding whether or not the standard should be mere knowledge or purpose? Why were those two words bracketed out in the drafts of the ICC Statute and negotiated, according to those who were present at the conference, quite vigorously? If the Prosecution is correct, none of that would have happened. If the Prosecution is correct, Article 25(3)(c) should have been easily adopted as simply a replication of the standard that was set out in the draft code of crimes, and no matter how eminent the 26 or 20-odd experts may have been, and for all I know one of your Honours might have been on that commission - I don't know - without any disrespect to the eminence of those officials, none of them were acting as representatives of States, and yet the representatives at the Rome conference clearly were and those representatives of States clearly had very, very serious reservations and concerns about the knowledge standard. So what is purpose, at least as it is applied in some systems? Well, purpose in some systems is defined as an intent to assist a crime. The intention to assist a crime, that's not the same as direct intent in respect of the crime of the perpetrator. It is dolus directus in respect of the assistance, not in respect of the ultimate crime. Now, whether or not those two might be very hard to distinguish in any particular case is not for me to say. There may be cases indeed where they are different, but in terms of topology, it's very clear what "purpose" means. "Purpose" means intent to assist. And to consider why that standard is sensible, why it has been adopted in various national systems, it's because -- precisely because knowledge is in and of itself ambiguous, and the Prosecution has been applying a standard of knowledge which is quite different than the standard of knowledge applied in many national systems where, as I've previously said, knowledge requires that you know to a virtual certainty, not -- there's also imponderables, but in the ordinary course of events, you know that the assistance you provide is going to be used in a specific crime. That is the knowledge standard applied in some countries. Not necessarily the same concept applied in all countries, but that is the standard, and I would suggest that the purpose formulation makes it very clear that that actually is the minimum requirement. There can't be some other use for the assistance you provide that is non-criminal because then you've reduced the likelihood down to a possibility or a probability, neither of which are sufficient for that standard. Now, the Prosecution referred in particular to one case, which I'll just briefly mention now because I think it's salient and that was the, I believe it's the Flick case, in which poison gas is supplied to Auschwitz. Your Honours, that decision is fundamentally predicated on the notion that there was absolutely no other lawful use for that gas, given the circumstances. The individuals supplying the gas knew that there was only one potential, possible use for that gas, and it was criminal. And the same cannot be said about supplying weapons or ammunition to a party to a civil war. Even if you know that there is a possibility or even a likelihood that some of those bullets are going to be used in crimes, because the truth is that if you give a bullet to the Syrian opposition today, knowing what we know, knowing what the UN High Commissioner for Human Rights has already publicly pronounced, then you can say that there is a possibility, if not a likelihood, that if you are continuously supplying bullets to the Syrian opposition, one or more of those bullets is going to be used in a crime, and are the suppliers -- is the Prosecution saying that the suppliers of those bullets are guilty of aiding and abetting those crimes? Your Honours, there is nothing in the Trial Chamber's findings in this case either implicitly or expressly that would have allowed it to make the finding that Charles Taylor knew that specific weapons or ammunition that he may have had some role in providing would be used in a crime, as opposed to being used for a lawful purpose. It was inherently geared towards combat. This is not the case of shipping a million machetes to Rwanda. This is ammunition being used to support a military campaign, and there is nothing illegal or there's nothing at least criminal in supplying such ammunition to an armed force, even when there's a Security Council Resolution prohibiting it, even when you know that there is a bloody civil war going on. That doesn't meet the standard of aiding and abetting in international criminal law. Now, what did the Trial Chamber find about Charles Taylor's criminal purpose? I see your Honour looking at the clock. I'm not sure when we're breaking.

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