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

Madam President, your Honours, may it please the Court. I will address the questions 2(i)(c), relating to whether customary international law recognises certain modes of liability are more or less serious than others, and then I will address 2(i) -- or 2(v) in relation to this question about whether there is a rule of customary law that says uncorroborated hearsay may not be the sole basis for incriminating findings of fact. Very briefly, as to question 2(i)(c) relating to customary international law and forms of liability, we agree with the Defence that customary international law does not establish a hierarchy of seriousness or blameworthiness for these modes of liability. We disagree there is even a general principle that establishes such a hierarchy. And in relation to the support the Defence place on the jurisprudence of the Yugoslav and Rwanda tribunals, we suggest that this jurisprudence does not negate the fact that in the world today, and in the world at the time this Court was created, there are two very different approaches to this issue of the relative seriousness of different forms of liability under 6(1). One approach is they are different. There is some kind of hierarchy, and States -- there are States that pursue that in their national systems. Another approach is, no, there is not. You cannot say one is inherently more blameworthy than the other. So we suggest that, given the state of the world today, you cannot derive a general principle that says there's a hierarchy. And the jurisprudence of these two Courts simply shows that they have chosen one of those two approaches, which they can do, but in our submission that does not create a general principle. It simply means they're going to follow one of these two very different approaches. Now, as to the jurisprudence that was cited, and it really is less than a principle, because what was said is that in these cases -- they say that, in general, aiding and abetting would warrant a lesser punishment. But we suggest to you that this statement, this statement of generality, is so general that it really lacks any force of authority. And that is true because the overwhelming obligation for sentencing, the critical underlying principles of sentencing, are that it must be individualised, it must look at the seriousness of the crimes, it must look at the conduct, the totality of the culpable conduct of the accused, it must look at the consequence of the crimes and conduct, and it must look at the individual circumstances of the accused. And this can only be done on a case-by-case basis, based on the facts and circumstances of each case. But even if you were to apply this very, very general approach that, generally, aiding and abetting would warrant a lesser punishment, even if you were to apply that, which we suggest is not a general principle, in this case, there would be no error in the sentence adjudged, at least no error in terms of it being excessive, because the facts and circumstances of this case are unique. Now, not so unique in terms of the seriousness of the crimes. These crimes are horrific. They are crimes none of us could ever imagine, but no more horrific than the genocide in Rwanda, no more horrific than many of the crimes in the former Yugoslavia, but the seriousness of the crimes themselves are very, very serious. But the uniqueness is the central, ongoing, critical role that this accused played in the commission of these crimes throughout the indictment period. His position of authority that the Trial Chamber found amongst the RUF, the AFRC/RUF, the additional influence and authority that this position gave to him, and the critical, indispensable role that his ongoing assistance provided to the commission of these crimes, his degree of involvement, the totality of the culpability of his criminal conduct is unique. And so even if you were to say, as the Trial Chamber did, as a general matter the Trial Chamber accepted that aiding and abetting warrants a lesser punishment, but on the facts and circumstances of this case, which is the basis on which any sentence must be determined, that would not warrant a sentence any less than 50 years. And as we have suggested to you, on the facts and circumstances of this case, a truly, truly appropriate sentence would be greater than 50 years. Now, in relation to question 2(v), about whether the sources of law identified in 72 bis (ii) and (iii) establish a rule that uncorroborated hearsay can't be relied upon as the sole basis for incriminating findings of fact, the Defence argued yesterday that there is a substantial body of law that establishes that indeed there is such a rule, that there's a widespread practice disallowing the use of uncorroborated hearsay. That's an unfounded assertion in our view, and it's an unfounded assertion based on the examples they want to rely on. They say, "Well, we want to rely -- for this assertion, we want to rely on the cases, examples from the European Court of Human Rights." Well, the European Court of Human Rights says there is no such rule. Certainly no such rule as it relates to a prohibition against using uncorroborated hearsay as a sole basis for incriminating findings of fact, because the jurisprudence of the European Court of Human Rights is based on a conviction, a conviction being based solely or in a decisive manner on testimony that was not subject to cross-examination. And that is a line of cases that they have abandoned and they say that's no longer the rule. That's no longer an absolute rule. And what do they look at? They look at what the international courts look at: Looking at the proceedings as a whole, were they fair? That is the rule of the European Court of Human Rights, not the rule that is set out in this question sub (v). And again in their argument the Defence says, "Well, this notion of customary law, there are two critical ingredients. The notion of State practice at a consistent level." There is no such consistency at the national level. Now, they again will point you to a handful of common law jurisdictions, a handful of common law jurisdictions, no civil law jurisdictions, where the rule has historically been very different. There is a great division in the world at the national level about admission and use of hearsay. There is no consistency. And even in the common law jurisdictions that they cite you to, what do their arguments really show you? Do they show you that these jurisdictions say you can't rely on uncorroborated hearsay? No. What they show you is a line or two in these laws that says you can't introduce hearsay at trial, and then there are always exceptions. So even in terms of introducing hearsay there's no absolute rule, and they say nothing about how you can use it once it's introduced. Now, they've talked about factors that should be considered. Well, the Trial Chamber in this case talked about factors that should be considered, but again this jurisprudence does not establish any general principle of the national laws of the legal systems of the world that says you cannot use uncorroborated hearsay. And, for example, if we look at United States Federal Rules of Evidence that the Defence has provided, we'll see that at Rule 802, I believe it's just over one line, that says hearsay is not admissible and then there are pages of exceptions. And even in that Rule itself it says, well, "Hearsay is not admissible unless ...", and then "... unless Federal Statutes, these rules or other rules prescribed by the United States Supreme Court allow its admission." So, again, the exceptions overwhelm the rule. Now, the Defence also pointed you to a case in the United States in 2004, a Supreme Court case, Crawford v. Washington. But if you look at that case, in particular at page 20 of that case, you will see that what that case really stands for is, the Supreme Court said, "You know, we have looked at the history of exceptions to the hearsay rule, and those exceptions don't include testimonial evidence," and they gave examples. They didn't give a definition but they gave examples, and they said, so, for example, prior testimony or if a person had given -- had been interrogated, made a statement in a police interrogation. They said, "If you look at the history of exceptions to the hearsay rule, they don't include that kind. They are exceptions where it's not testimonial." So that case stands for the opposite of what we have to deal with here today, because we don't have testimonial evidence that we're asking you to accept as -- into evidence except as allowed under our rules. Indeed, what we have is non-testimonial. Sam Bockarie didn't go into a court and testify. What court would he have gone into? Who would have questioned him about what? So we're not looking at the very kind of hearsay that Crawford says is not admissible. And that's also true, and it has to be true because the Crawford case was decided in 2004. The Rules, the Federal Rules of Evidence you were shown are dated 2011 and they have all kinds of exceptions to the hearsay rule still in those Rules. So if the Crawford Court had basically said, "That's an end to it, no hearsay in criminal trials," there would not be any of those exceptions, but they're there. So the Crawford rule does not establish any absolute rule either. And if we look at the Horncastle case, which the Defence also provided you, at paragraph 41 -- and by the way that Court certainly doesn't accept that this absolute rule exists, it says specifically "We don't accept that absolute rule." But at paragraph 41 they say, "Well, there are even other common law jurisdictions ..." and they name Canada, Australia, and New Zealand, "...that recognise hearsay as potentially admissible where it is not possible to call the witness, even where this evidence is critical to the Prosecution case." And they go on to say, "This demonstrates there's no rigid rule excluding evidence if it is or would be either the sole or decisive evidence." So there is no consistency for this rule, and the European Court of Human Rights has made that clear in its latest decisions, including the Al-Khawaja decision. It's also helpful to recall that in the Prlic Appeals Chamber decision that cited to the no longer valid line of cases from the European Court of Human Rights, at paragraph 51, at footnote 86 of paragraph 51, the Court said, "You know, caution should be exercised in referring to the European Court of Human Rights precedents regarding issues of admissibility of evidence because, as the European Court itself has recognised, admissibility of evidence is primarily a matter for regulation by national law and, as a general rule, it is for national courts to assess the evidence before them." And we suggest to you that this applies with equal force to the Yugoslav Court, the Rwanda Court and to this Court. And that Appeals Chamber went on to rightfully note that the task of the European Court of Human Rights is not to give rulings about whether statements are properly admitted but rather to ascertain whether proceedings as a whole were fair. And, indeed, going back to Horncastle, if we look at paragraph 113, the Court said, "If there is an inflexible, unqualified principle that any conviction based solely or decisively on evidence of an absent or anonymous witness is necessarily to be deemed unfair, the whole domestic scheme for ensuring fair trials cannot stand and guilty defendants will have to go free." And the European Court of Human Rights Grand Chamber again recognised these statements and these concerns as correct in the Al-Khawaja decision at paragraphs 126 and 146 where it said that "It would not be correct for the European Court to ignore the specificities of a particular legal system and confirm that Article 6 does not lay down any rules of admissibility." So there is no consistency of practice that would give rise to the custom that is enquired about in this question. The Defence places, in our submission, unfounded reliance on the analysis at Annex 4 of Horncastle, because if you look at that what they are saying it is, "You know, under our common law system we would not have allowed this evidence either, but it's not because it is uncorroborated hearsay. It's because either they didn't prove that the witness was truly unavailable or they didn't find sufficient factors to ensure a fair trial." Now, your Honours, the Defence also alleged that if you looked at Rule 92 quater, of our rule, similar -- actually, identical to the Yugoslav Rule 92 quater, that you had to have corroboration for these statements. Well, if you look at that rule, there's nothing in the plain language of that rule says that you have to have corroboration for that statement. Really what does the rule say? They say if you have evidence in the form of a written statement or transcripts, so they're talking about that kind of evidence, and then the person subsequently dies, which would be the situation in our case, that this evidence may be admitted if the Chamber is satisfied from the circumstances in which the statement was made and recorded, that it's reliable, and if it's satisfied as to the unavailability of the witness as set out above. And then it goes on the say that if the evidence goes to proof of acts and conduct of an accused as charged in the indictment, this may be a factor against the admission of such evidence. Nothing in there says that kind of evidence would have to be corroborated. Nothing in there says any of this evidence would have to be corroborated. Now, the Defence also argued yesterday that where hearsay is admitted into evidence, the safeguards against this hearsay in many instances provide for a directed acquittal by a judge in circumstances where the hearsay is an integral part of the evidence and is extremely unconvincing. We suggest, your Honours, that's not the test. The test for that type of directed verdict of acquittal is much higher, and again we refer to Al-Khawaja at paragraph 149. And here's what we say the test is: That there would be such a directed verdict of acquittal if the judge finds that the hearsay is so unconvincing that, considering its importance to the case, a conviction would be unsafe. So it's not just that it's unconvincing, but considering its importance to this case it would actually render the verdict unsafe. That's the test. That test was not met by any of the evidence that the Defence talks about here. Now, in addition, it's helpful to recall that, again in the Al-Khawaja case, the European Court of Human Rights rightly says that in determining if a trial is -- has been fair, if the proceedings have been fair, you look not only to the proceedings as a whole and you look not only to the rights of the accused, but you also look to the interest of the public and victims that crimes be properly prosecuted. Now, in the chart that the Defence provided to you, there are several examples of alleged uncorroborated hearsay, and among the originators of that hearsay, or the secondary sources of that hearsay, are Sam Bockarie, Superman, Daniel Tamba and a person by the name of Moinama. All of these people are dead. Sam Bockarie is dead at the hands of Charles Taylor's forces. Superman is dead in mysterious circumstances in an ambush in Liberia. Daniel Tamba is dead in mysterious circumstances while fighting alongside other members of Charles Taylor's forces. Moinama is dead at the hands of the RUF. So if we apply this balance, how do we say that this evidence should not be admitted to be considered by professional judges, by the gatekeepers who will assess the evidence, weigh the evidence, based on their professional abilities? We're not concerned here about a jury trial, about a lay jury being overwhelmed with emotion or looking at the evidence because they don't understand the law. We are talking about professional judges. And in addition to that, the Defence has talked yesterday about, well, you know, there are some exceptions where they require that you have to depose these people in order to present their testimony. Well, that's not the case in all the jurisdictions. It's not the case in this Court. But also, in 1997, in 1998, 1999, who was going to take depositions from these individuals, and for what purpose, and how were they actually going to do it? So could that rule really be applicable to the circumstances in which those statements were made, non-testimonial statements made during the events in question? Now, very briefly I would like to go over the examples given to you in the chart that was provided to you by the Defence. Now, I know yesterday there was an issue about whether you had that chart. We have copies if your Honours do not have it, and we can give those copies to you.

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