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

Thank you. Your Honours, in relation to the adjudicated fact decision in this case, the Defence this morning submitted to you that in the Trial Chamber's decision on that, that they rejected the position that the Prosecution could challenge adjudicated facts with evidence from the Prosecution case. That's simply wrong. That decision, you can read it. It never, ever says that the evidence that's already on the record will not be considered or could not be used for a challenge of adjudicated facts. No one understood that decision that way, not the Prosecution, not the Chamber, not the Defence. The decision itself, the only reference it makes to using evidence from the Prosecution case to challenge adjudicated facts is that it twice quotes the Defence in their submission, their motion and their reply, saying that this evidence could be used, evidence from the Prosecution case could be used, to challenge the fact, and no one understood otherwise. The reason I say that is in March the Defence came back, and as I said this morning they made a motion and in both the motion and the reply they made the point the Prosecution can challenge the evidence based upon what is already on the record. I'm not going to repeat what I read this morning, but Defence counsel has not explained. If the Defence was misled or understood that decision as precluding the use of evidence already on the record from the Prosecution case to challenge an adjudicated fact, why then would they write in their RUF motion and in the reply that the Prosecution can challenge the fact based upon evidence already on the record? So what's absolutely clear is that in March 2010, before they called their first witness, the Defence in this case understood that the Prosecution could challenge the adjudicated facts based upon evidence already on the record. And the reason I say the Judges also understood that, we know that because in Justice Sebutinde's dissent on the RUF adjudicated fact decision, she specifically said so. I read that the first -- yesterday. Justice Sebutinde specifically said the Prosecution's not prejudiced because they can use evidence from their own case to challenge the adjudicated fact. In any event, what the Defence -- what the decision said simply that the Defence is trying frankly to distort is that the Prosecution could rebut the evidence by either rebuttal evidence or cross-examining Defence witnesses, and in fact the Prosecution did cross-examine Defence witnesses, and evidence relevant to adjudicated fact 15, relevant to the current Defence interpretation of adjudicated fact 15, was elicited from the Defendant's own witnesses. And particularly Issa Sesay, who testified in cross-examination, 19 August, page 46793, that's 2010, to 94, that Rambo Red Goat did lead a group into Freetown, did link up with the AFRC, and in his direct examination Issa Sesay confirmed that the Red Goat group was made up of RUF fighters, and that was 9 July 2010, page 44167. So while the Prosecution was certainly -- could have simply relied, and the Trial Chamber relied on evidence of the Prosecution case, in fact there also was evidence that rebutted the Defence current interpretation of the adjudicated fact from the Defence's own case and own witnesses. Now I'd like to briefly address the issues on aiding and abetting. Counsel noted the van Anraat case here in The Hague, that was the man who was selling a chemical to the Iraqi regime that they were using to make mustard gas, and the Zyklon B case, where a gas used to kill vermin was being sold to the Nazis and they were using it to kill human beings in concentration camps. What's clear and does not seem to be disputed by the Defence is that in neither of those cases did the courts invoke a purpose standard. Had they invoked a purpose standard, they would have acquitted because there's no discussion in Zyklon B of any intent other than knowledge. And in the van Anraat case, the Court specifically says that they do not believe that he was sympathetic to this campaign against the Iraqi civilians and they presumed his only, or they understood from the evidence, they found his only motive was large financial gains. Under the Defence interpretation of how they would want you to change international jurisprudence, someone who commits these crimes and facilitates crimes simply for financial motive wouldn't have the purpose and would be acquitted, and that would be a great step back for international law. Now, the Defence also made a point about the actus reus for aiding and abetting, and I may not have understood everything in the Defence counsel's submission, but the submission talked about, "Well, what is it the Prosecution is saying needs to be shown for the actus reus of aiding and abetting?" What needs to be shown, we've said consistently, is what this Trial Chamber, the standard that was applied, is that there's acts that facilitate the crimes and amount to a substantial contribution, and that's either practical assistance, encouragement or moral support. The cases say that this is a fact based inquiry. I believe your Honours said this in the CDF Judgement, also there's Djordevic Trial Judgement, paragraph 1874, Mrksic Appeal Judgement, paragraph 146, Blagojevich Appeal Judgement 134, Kalimanzira Appeal Judgement, paragraph 86. It's a fact based inquiry that depends on the facts of the case. Now, I understood counsel to be asking is the Prosecution saying that the accused should be held responsible because the crimes of the RUF were part of the operational strategy of the RUF, or was it because these crimes were regularly carried out, part of their modus operandi in all territories that they held? And we are saying both. The Trial Chamber found both. Those are the facts of this case. Is that the minimum standard for aiding and abetting? No, I believe it's far above, but it's sufficient. That is sufficient, part of the actus reus. He's providing assistance to a group, military assistance, that facilitates these crimes, and the reason we know it facilitates these crimes is because, partly because, this is a group with an operational strategy to commit crimes. It's part of their modus operandi both in combat and in areas they control and territory they control. This does not mean, again, that all military assistance to any State or any group is a crime. And the fact that you cannot, you don't have a right to give assistance to a group that's engaged in widespread atrocities, we believe is recognised by States, and there's evidence of that. I would point to, there's a document which we distributed I believe this morning, it's the EU Council common position on exports of military technology, the European Union has an agreement or treaty among the States. Article 2(c) provides that Member States shall deny export licence when there is a clear risk it will be used in the commission of serious violations of international humanitarian law. So this is recognised, this basic principle that we're talking about, common sense, is recognised and even codified in a treaty or agreements among the European Union states. It's also, there's a provision in United States law, and this is the Leahy amendment named after Senator Patrick Leahy, that prohibits US assistance to a group. It's section 563 of the Foreign Assistance Act, "Funds may not be provided for security forces when there is credible evidence of gross human rights violations." So here we have States recognising in their own law an obligation not to provide assistance to groups when there's recognition of a risk of violations of international humanitarian law or a record of gross violations of human rights law. Again, both of these are far below the standard of the findings in this case. This case, it's not the finding that there were "some" crimes. It's not that there were "reports" of atrocities. The findings well supported by the evidence are this was an operational strategy and a modus operandi and victim after victim came before this Court, the Defence said too many came before the Court, and explained that strategy and the effects that it had upon them. And the Trial Chamber was correct, and I believe obligated, to make that finding that they did about this operational strategy and modus operandi. Now, in talking about the actus reus, we agree with the Defence it has to be linked to a crime and the accused has to have some knowledge about the -- that the actions of the accused will facilitate a crime, but your Honours in the CDF case, paragraph 243 -- excuse me, I think this is AFRC Judgement, Appeal Judgement, paragraph 243, in which your Honours said, "The Appeals Chamber of the ICTY in both Blaskic and Simic found that it was not necessary to prove that the aider and abettor know the precise crime that was intended or actually committed by the principal perpetrator." In both cases, the ICTY Appeals Chamber held further that, "Liability for aiding and abetting requires proof that the accused knew that one of a number of crimes would probably be committed and that one of those crimes was in fact committed," and that's the AFRC Appeals Judgement, paragraph 226. Now, in speaking about the knowledge standard, the Defence proposed that the correct standard is purpose and that the evidence of that is the Model Penal Code from the United States. Well, first of all, your Honours, we're not in the United States in this case and the Model Penal Code itself, while it has some authority, is not adopted as law in its entirety in any jurisdiction, any of the States of the United States. What we do have is a standard that's been applied by this Appeals Chamber in each of the cases the three Judgements rendered, and again this is in the AFRC Appeal Judgement, paragraph 226, in which your Honours held, citing ICTY's Appeals Chambers, that, "Liability for aiding and abetting" -- excuse me. Well, your Honours held -- and I cut and pasted in the wrong position apparently. The standard that you held is that it has to be an awareness of the substantial likelihood that a crime would be committed. That comes from each of your Honours' Appeals Chamber decisions discussing the mens rea for aiding and abetting. Finally, Your Honour, we'd like to point out that even if the Court changes the standard under international criminal law for the mens rea for aiding and abetting and adopted that proposed by the Defence, that is what we heard this morning, did Charles Taylor know to a virtual certainty that his acts of assistance would facilitate the crimes? Well, the evidence and the findings of the Trial Chamber are clear. He did know to a virtual certainty that his actions would facilitate the crimes. We know this from other -- from among other reasons, his own words. 25 November 2009, page 32395, Charles Taylor was asked, "If someone was providing support to the RUF/AFRC as of April '98 they would be supporting a group engaged in a campaign of atrocities against the civilian population of Sierra Leone; do you agree?" He said, "Well, to an extent, you could say yes. Anybody that would supply would be doing it against civilians, yes." So Charles Taylor himself acknowledged that because of these wide-spread reports, as he said no one on this planet did not hear of the atrocities, anyone who was providing support to that RUF/AFRC group would know that they were facilitating crimes against civilians. Thank you. And the correct citation from the AFRC Appeal Judgement where your Honours required a finding of an awareness of substantial likelihood is paragraph 242 of the AFRC Appeal Judgement. Your Honour, I'm happy to answer any questions, but just in case you don't have any I just want to say what a privilege it's been to appear in this case and we're available for questions.

Keyboard shortcuts

j previous speech k next speech