Madam President, your Honours, good morning. You will know, from having heard both the Prosecution and Defence submissions yesterday, that of course not everything that was said yesterday during the Prosecution's initial presentation is agreed to by the Defence. On the contrary, we disagree with it quite substantially. However, I won't be responding to most of what was said yesterday by the Prosecution because we consider that either it was already implicitly addressed in our initial submissions, or because it is already adequately briefed for your Honours in our written submissions. However, I do want to address you on just three short points, and mercifully I can be much shorter than I was yesterday, and those three points, your Honours, are: First the Prosecution's conception of the actus reus of aiding and abetting and what can be considered in respect of substantial contribution; secondly what is precisely the meaning of the knowledge standard in respect of those countries that do apply that standard; and third how the knowledge standard has been applied in two cases that have now been mentioned several times, the van Anraat case and the Zyklon B case, and our position as you will see is that in fact the decisions in those cases strongly support the position that we have adopted in this appeal. Now, the first question concerns the actus reus, and yesterday you heard from the Prosecutor - and unfortunately I don't have a specific page reference, because the transcript that we received was not paginated, but the transcript from yesterday indicates that the Prosecution stated -- and unfortunately there is an ellipsis here where apparently a word - a very perhaps critical word - was missed, but the Prosecution submitted in describing the elements of aiding and abetting, "Secondly, the accused has to ...", ellipsis, "... acts that facilitate the crime. Not all military assistance facilitates the crime. It facilitates crimes when the group has an operational strategy to commit crimes when you know that when they go out and make operations they're going to be killing, they're going to be using terror, when you know that even when they hold territory crimes are being committed like the RUF, then that military assistance assists crimes, but ordinarily it does not necessarily assist crimes." Your Honours, I would submit to you that that's a very confusing definition of actus reus in this context, and the reason it's confusing is because it's not clear whether the Prosecution would submit to you that only assistance to groups that have an operational strategy could constitute aiding and abetting as opposed to assistance to a group that habitually, repeatedly, continuously, but not as a matter of operations, is committing those crimes. I don't know, your Honours, whether the Prosecution considers that to be a significant distinction in respect of the actus reus of aiding and abetting. I can tell your Honours that this issue is also confusing in the Judgement, because the Trial Chamber says, "The basis for finding that Charles Taylor knows that future crimes are going to be committed and the basis for saying that his assistance has assisted those crimes is that those crimes are going on continuously, habitually, repeatedly. Therefore, we infer an operational policy." Perhaps there may have been extrinsic evidence to also infer an operational policy, but we have heard nothing from the Prosecution indicating whether they deem the actus reus to only be fulfilled in respect of aiding and abetting when it is an operational policy alone. I would suggest that if they're trying to make that submission, that's quite wrong. It is quite contrary to the basic definition of aiding and abetting which, as the Prosecution itself has tried to maintain, has nothing to do with mens rea. It's purely a question of, "Are you in substance, in practice, in fact, are the instrumentalities that you are providing, are they substantially assisting a crime?" And I would respectfully submit it doesn't matter whether that is an operational policy, or merely an ongoing series of crimes that are recurring. In either case, your Honours, those crimes are foreseeable and, according to the Prosecution's submission about actus reus, that should be enough. You know that those crimes that providing that -- those weapons or that ammunition may indeed encompass future crimes. And I have, even in addressing you, slipped into discussing a little bit about mens rea, because even formulating it is hard to do without talking a little bit about the intentions of the person providing the ammunition. But how did the Trial Chamber apply the actus reus of aiding and abetting? It didn't rely on the operational strategy as such, nor has the Prosecution in its own submissions. In fact, they have adopted a very loose and minimalistic definition of what can contribute to substantial contribution. For example, today and yesterday they told you that giving bullets which enable capturing other bullets which are then possibly used in crimes, that can be taken into account in the actus reus of aiding and abetting. That's enough. They have also told you that one attack which has a beneficial impact strategically or tactically on another attack also can satisfy the actus reus of aiding and abetting. So it's hard to see how the Prosecution, given its own submissions and given the Trial Chamber's own position, could say that the actus reus is somehow limited to assistance to an operational strategy. That's not what's done in the Trial Judgement and it's not what the Prosecution itself has done in its submissions before you. Now, the Prosecution cited -- well, I won't indicate specifically what they referred to, but they in their initial submissions suggested that, if it hadn't been for assistance provided by Charles Taylor, certain consequences - criminal consequences - would not have ensued and that that was enough to be considered for the actus reus of aiding and abetting. It's a simplistic "but for" causation threshold. That's what they on the one hand have attempted to argue to you, that that gets them into discussing actus reus, but then on the other hand they come around and say, "Oh, but it's an operational strategy that's required." Well, I'm not really sure what the Prosecution's position on this is, but I would suggest to you that in practice what the Trial Chamber did was not in any way rely on an operational strategy. They merely said, and this is perfectly in accordance with the minimalist definition of actus reus, "If you provide bullets knowing that they might be used, and even if you don't know that, if you just supply the bullets and they are used and they are contributing to a crime, then that's enough to satisfy the actus reus. This operational policy element is not in the Judgement as a part of the actus reus." Now, why is that important? It's important because on the one hand the Prosecution is trying to seduce you to say, "Don't worry about the mens rea, because actually there is an element - a robust element - in the actus reus that will prevent liability in strange circumstances," but then on the other hand, "When it comes to application, the door is wide open to considering anything in terms of determining substantial effect." Now, mens rea, two very specific points. The Prosecution submitted to you that the mens rea standard for aiding and abetting is that the accused knows his assistance is aiding and abetting the crimes. He is aware at least of the substantial likelihood that his assistance will facilitate the commission of those crimes. Now, here you have the Prosecution again referring to crimes in general. And it might seem like a minor linguistic distinction, the difference between crimes in general and specific crimes, but in fact it's a very significant distinction. Yesterday I submitted to you that there were in fact various countries that helped -- the law of various countries that helps understand what exactly knowledge of what is required, and I refer your Honours to paragraph 368 of our appeal brief and I want to cite two very, very different legal systems to show you that in fact the conception being applied by the Prosecution and that was applied by the Trial Chamber is quite wrong. Paragraph 368 of the appeal brief refers to the United States Model Penal Code, which gives you a very precise definition of knowledge and it indicates that indeed there must be a knowledge to a virtual certainty in respect of the crime. That is the required mens rea in respect of knowledge. That's -- even where you see the word "knowledge," that's the standard. You must have a virtual certainty that the instrumentality is going to be used in a crime. And that's the case in the United States in those States that do not adopt a full intention standard, a dolus directus in respect of the final outcome, and there are such States. There are States that say, "Not only must the aider intend to assist, not only must the aider know that the assistance is going to be used in that crime, the aider must know -- must intend the outcome." That's -- I'm not urging that standard on your Honours as the standard in customary international law. I am merely illustrating for you that, even based on the lesser standard of mens rea of knowledge, there is still that requirement that you're intending to assist. It's either intending to assist or intending to accomplish the crime. And that's also the position even in those States like Germany, where you have the broadest possible definition of the mens rea, because in Germany you have a knowledge standard plus dolus eventualis. In other words, the person providing the assistance must be -- must know of the substantial likelihood - substantial likelihood - that the instrumentality will assist a crime and must nevertheless provide that assistance aware of that substantial likelihood. Dolus eventualis is a very particular form of intention, which is just slightly higher I would submit than recklessness. And even in Germany, with the lowest or the broadest possible definition of the mens rea, you'll know from looking at our brief that in Germany there is an exception. There is a recognition that if you are providing neutral assistance, in other words assistance that either could be used lawfully, either could be used non-criminally, or that could be used criminally, there is a further requirement of establishing a purpose in relation to the crime. So there you have two extremely different disparate systems of law, and yet in either case the outcomes would be quite different than you've seen established by the Trial Chamber in this case. Now, I'd like to refer thirdly to two cases that in fact highlight and illustrate this very concept, this threshold, the importance of this threshold, and it's the Zyklon B case - and I thank my learned colleague opposite for correcting my erroneous reference of yesterday - and the van Anraat case. Now, what did these two cases say in relation to the knowledge of the accused? This is what's vitally important, and it's unfortunate that the Zyklon B case involves a one-line verdict. The Chamber itself doesn't explain its reasons and so drawing inferences is already a hazardous exercise from this Judgement, but what we do have is an account of the summary of the Judge Advocate in that case. The Judge Advocate poses the question at the end, or summarises a question posed by the Prosecution, "Why is it that these competent businessmen are so sensitive about these particular deliveries? Is it because they themselves knew that such large deliveries could not possibly be going there for the purpose of delousing clothing, or for the purpose of disinfecting buildings?" So it's correct when the Prosecution says, "Yes, this chemical in principle could have been used for perfectly lawful and appropriate purposes." Yes, if it had been supplied in lower quantities, but if it is -- if it is supplied in such large quantities that the only possible use is not legal, is not non-criminal, then the inference can be drawn that the knowledge factor exists. You know that that instrumentality is going to be used for crime. In the language of the Model Penal Code of the United States, "to a virtual certainty." That meets the standard for mens rea and that's a knowledge standard. Van Anraat, exactly the same reasoning. Yes, it's true that TDG in small quantities could be used as a dye, non-criminal purposes, but what did the Chamber, the Appeal Court in The Hague, find about the quantities and what that meant about the knowledge of the accused? I'm quoting from Section 11.10 of the Judgement, "The fact that TDG in the quantities as supplied by the defendant, more than 1,100 tonnes altogether, could only serve for the production of mustard gas and not as continuously argued by the defendant and his Defence for use in the textile industry has been stated by Expert Witness A, amongst others, during the court session of 4 April 2007," and the Chamber accepted that. These cases precisely illustrate the point that we have been trying to make. Knowledge is not knowledge of a possibility. It's not even knowledge of a probability in relation to the ultimate outcome. It's -- and when we say, when we use the term in our brief "actual knowledge," it means knowledge to a virtual certainty that you are providing the instrumentality for a specific crime, not that it might be, not that it could be, not that there's a chance, not that it's likely, not even that it's probable, your Honours. None of those standards meet the mens rea - the appropriate mens rea - standard of aiding and abetting and the cases that have been relied on by the Prosecution show that. I thank your Honours.