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

May it please Your Honours.

Again can I express my gratitude for the time allowed to consult with Mr Taylor. Equally, we are grateful for Your Honours's indication this morning as to when the final written judgement will become available. Although it's still a matter of concern to us that we are here at this sentencing hearing without the benefit of Your Honours' written reasons.

For this reason -- for example, during the course of my learned friend's Ms Hollis's address this morning, in effect a factual issue was raised as to the evidence supporting the finding of planning in relation to the Freetown invasion, and without the assistance of the final written brief, of course, that creates difficulties for all the parties in our submission.

But in any event, we submit that what emerges from Your Honours' summary judgement is a more modest vision of Mr Taylor's involvement in the Sierra Leonean conflict than that originally suggested by this Prosecution. We need to remind ourselves that as recently as April of last year, David Crane, once Chief Prosecutor of this Court, was still maintaining, and I quote:

"The civil war in Sierra Leone ripped apart an entire region of West Africa, spawned by the president of Libya, Colonel Muammar Gaddafi, and supported by President Blaise Compaoré of Burkina Faso, and Charles Taylor of Liberia. This take-over of an entire country for their own personal criminal gain was a rare event in conflict not seen since the Middle Ages."

The West African joint criminal enterprise was designed to support the geopolitical take-over of West Africa by Gaddafi, where surrogates such as Compaoré and Taylor, amongst others, would control the region on his behalf.

Now we need to remind ourselves that that was the paranoid mindset which created the indictment in this case. This overblown claim has been rightly rejected by this court. What this Court has found - and for which Charles Taylor is to be sentenced - is that he was assisting combatants, combatant factions, in the foreknowledge that they was perpetrating atrocities in another country.

Now, a distinguished professor of law, and one of the commissioners on the Sierra Leonean Truth and Reconciliation Commission, has remarked as follows in respect of this Court's finding - that's Professor William Shabas:

"The conclusion of the Trial Chamber in Charles Taylor seems based on uncontroversial principles. He or she who provides significant assistance to a participant in a conflict, knowing that the participant is perpetrating atrocities against civilians, is guilty of aiding and abetting such crimes. This is straightforward, and it leads in an interesting direction."

Atrocities were perpetrated on all sides in the Sierra Leone conflict. This emerges from the case law of the Special Court as well as from the report of the Truth and Reconciliation Commission. It was notorious at the time in 1998 and 1999. So what are we to make of those who supported the other side in the conflict? For example, the Blair in the United Kingdom provided assistance and support to the pro-government forces. The pro-government forces had their own sinister militia involved in rapes, recruitment of child soldiers, amputations, cannibalism, and other atrocities. Two of those involved were convicted by the Court, and a third, who was a minister in the government supported by the United Kingdom, died before the trial completed. What is the difference between Blair and Taylor in this respect?

Moving beyond Sierra Leone, can we not blame the French government for aiding and abetting genocide given its support for the racist Rwandan regime in 1993 and 1994? The crimes of the regime were well publicised, not only by an NGO commission of inquiry but also by Special Rapporteurs of the United Nations, and yet the French continued to provide assistance in personnel, arms, and ammunition to the Habyarimana regime.

What about those who supported the various sides of the war in Bosnia, or in Sri Lanka? Are American officials who backed Saddam Hussein when he perpetrated atrocities in Iran during the 1980s also guilty of aiding and abetting in war crimes and crimes against humanity?

What of those Western states that continued to bolster the apartheid regime in South Africa during the 1970s and 1980s when they were fully aware of the racist system that has been characterised as a crime against humanity? But it doesn't end there, because as recently as the 10th of May of this year, Human Rights Watch, no great friend of Charles Taylor, published an article by Reed Brody in which he said:

"In Taylor's case, the Court found that he knew of the atrocities being committed against civilians by Sierra Leonean allies and of their propensity to commit crimes. Nevertheless, the Court said Taylor continued to ship arms to the rebels and provide them with political and moral support and encouragement."

The principle is akin to giving more ammunition to an armed man on a killing spree. It's striking that the very same legal reasoning could apply to those in Washington, Moscow, or elsewhere, who provide military assistance to abusive forces half a world away.

Take, for example, the case of former US Secretary of State Henry Kissinger and East Timor. Declassified documents revealed that after the Timorese declaration of independence from Portugal in 1975, Kissinger and President Gerald Ford, fearing that the new country would become a communist outpost, gave Indonesian President Suharto the green light to invade the island in a Jakarta meeting the day before the invasion. The United States were then supplying Indonesia's military with 90 per cent its arms, and Kissinger himself described their relationship as that of donor/client.

Now, I refer to these articles, Your Honours, for this reason, because they remind us of the danger of telling a single story. In our submission there must be a balance of stories. However, the reality is that though the decision of this Court in convicting Mr Taylor of aiding and abetting the conflict in Sierra Leone has been trumpeted, and again this morning, are sending a non-equivocal message to world leaders that great office confers no immunity, the fact is that really two messages are being sent.

The first message is, if you run a small, weak nation, you may be subject to the full force of international law; whereas if you run a powerful nation, you have nothing whatsoever to fear. Thus, Staff Sergeant Robert Bales, a US soldier, premeditatedly killed and burnt the bodies of 17 unarmed civilians in Afghanistan, yet we have not seen one article in the newspapers or one report in the Western media that brands this crime with the condemnation it demands by labeling it either a war crime or a crime against humanity.

This is because the fact is that acts are defined as criminal because it is in the interests, or at least not against the interests, of a ruling class to define them as such. We, therefore, submit unequivocally that there is nothing universal about Western states' claims to support universal human rights. Rather, the claim is based on the assumption that some states are more civilised than others. Thus, when the former British Foreign Secretary, the late Robin Cook was asked on the BBC shortly after the United Kingdom became a signatory to the Rome Treaty whether the newly constituted ICC thereby created might one day indict Western leaders for their decision to go to war in Iraq for a second time, he retorted, outraged and indignant, and I quote:

"If I may say so, this is not a court set up to bring to book prime ministers of the United Kingdom or presidents of the United States."

So we ask, who was it set up for, then? Who was it set up for? We submit that the answer is plain to see because it is notable that the guardians of international justice have yet to find a single crime committed by a great, white, northern power against people of colour. That is because in reality, international criminal justice is governed by the law of gravity. It always travels from top to bottom, from north to south.

And in this regard, we return to a point we have consistently made. That is the centrality of selectivity in this process, Selectivity of denunciation, selectivity of investigation, selectivity of prosecution, and we also submit selectivity of immunity. That is why we were driven to introduce our closing written submissions in this case with these words from which we do not for one moment seek to resign. The Prosecution of Charles Taylor before the Special Court for Sierra Leone has been irregular, selective, and vindictive from its inception. Examined from any vantage point imaginable, the case against Taylor has as its core political roots and motives and the inexorable determination of the United States and Great Britain to have Taylor removed and kept out of Liberia at any cost.

Indeed, this case directly raises the question of whether the judicial process can be fashioned into a political tool for use by powerful nations to remove democratically elected leaders of other nations that refuse to serve as their handmaidens and footstools.

From the outset of these proceedings we have denounced this trial as being political. We have labeled this Prosecution as riddled with hypocrisy and untruth, and we are not about to stop now. At each stage of these proceedings we have been consistent and we are not about to reject any aspect of our case at this point, not for one instance.

But it is against that background that we should view the Prosecution's demand for a sentence of 80 years' imprisonment for a 64-year-old man.

But again, there is nothing surprising here. I remind myself of the contents of Defence Exhibit D481, a leaked code cable attributed to the US ambassador in Liberia. However, the best we can do for Liberia is to see to it that Taylor is put away for a long time. And we cannot delay for the results of the present trial to consider next steps.

So it seems that interests other than that of the people of Sierra Leone are being served by this demand for 80 years. Throw away the key.

Now, there are three matters that I would like to deal with at that stage in respect of the submissions made by my learned friend this morning.

First of all in relation to the question asked by Justice Doherty, we have found an ICTY authority called Blaskic, dated 1996, and it provides the legal basis for our submissions other than the English legislation to which we have referred in our written submissions. Where relevant at paragraph 17 and 18, the authority provides as follows:

"Close scrutiny of the various national legislations shows that states tend to uphold the same basic concept of house arrest and, in addition, lay down similar preconditions for the imposition of such measures."

By contrast, the requirements to be fulfilled by the person detained under house arrest vary greatly, all the more so because they are normally set out by individual judges for specific cases and in the light of the specific circumstances of each case.

As for the basic concept of house arrest, there is broad agreement that it covers detention in one's home or within the confines of the house or place outside a prison. It is widely specified in national legislation and held by courts that house arrest is a form or class of detention. For all purposes, including the right to impugn the legality of detention, and the right to have this period spent under house arrest taken into account for determining the penalty, credit should be given to the convicted person for the period, if any, during which the convicted person was detained in custody pending his surrender to the Tribunal or pending trial or appeal should also apply to such form of pre-trial detention.

And the final point we make in this regard is this. In a customary careful way, my learned friend went through in detail the submissions made by the Defence in regard to that issue of house arrest in Calabar. One important omission, however, was the statement by David Crane, a Prosecutor -- the Chief Prosecutor, who himself characterised Taylor's period in Calabar as house arrest.

The second matter that I would like to address which arises from my learned friend's submission is this. The Prosecution's concerns about Annexes G, J, and U as containing information going to the acts and conducts of the accused is misplaced. The rules for admission of information by the Defence at the sentencing phase does not have a restriction similar to that of Rule 92 bis, which deals with the admission of written evidence at trial.

In any event, the information contained in the annexes does not, in our submission, go to proof of the acts and conduct of the accused in relation to the commission of the crimes charged, and so, in our submission, should not be excluded.

The third and final matter which arises from my learned friend's submission which I would like to address is this. Now, the point was made that at this stage there is no absolute certainty as to the geographical location where Mr Taylor will serve any sentence imposed by this Court. This consequently leaves open this possibility: Your Honours could, we submit, take on board our submissions as to the aggravating nature for an African to be serving a sentence thousands of miles away on a different continent. And Your Honours could take that into account in, for example, providing in your sentence for alternative sentences, so that if the sentence is to be served in the United Kingdom, these considerations apply; if elsewhere, then different considerations may apply. That, of course, is a basic, we would submit, sentencing exercise.

Now, My Lord, turning now to the mitigating factors which we have set out in detail in our written submissions, and I assure Your Honours that I will not be going through all of those in detail, but I do appreciate that the art of mitigation is to establish here, in this court, on a balance of probabilities, certain mitigating circumstances.

As I say, we have set these out clearly in our written sentencing brief, and we did so whilst appreciating that international sentencing law and practice is not yet defined by exact norms and principles and, as yet, there is no body of international principles concerning the determination of sentence, notwithstanding the huge volume of sentencing research and the extensive modern debate of sentencing principles. Moreover, international judges receive very little guidance in sentencing matters. This situation can lead to inconsistencies and may increase the risk that similar cases will be sentenced in different ways.

This is particularly the situation in this unique situation, what is described as being an important historical moment with very little precedent. There is very little guidance for Your Honours in this unique situation.

But turning onto other matters beyond those principles, we have, from the outset, conceded that crimes were, indeed, committed in Sierra Leone. That Your Honours have found this to be the case is therefore hardly surprising because the issue was not, of course, whether the atrocities were committed but, rather, the role played in them by Charles Taylor.

Nonetheless, for almost five years we in this trial shared a collective experience. We have relived lost lives. We felt the pain of lost limbs, the agony of not only rape in its commonly understood sense, but also the rape of childhood, the rape of innocence, possibly the rape of hope. We have recorded the destruction of homes and communities. All the consequences of war, whenever waged, whatever the countries involved, for war causes men and women to lose their infancy as they become infantrymen and women, an English word. So child soldiers is not a recent phenomena, and it's not -- it's certainly not restricted to Africa. It has a very long pedigree indeed.

So in that regard, we ask you to contrast two situations: Firstly, a child soldier, forcibly recruited, enduring bitter experiences in the denial of his or her childhood, left militarised, uneducated, with few life chances, abandoned to a life of rejection, pain, and possibly crime, exacerbated, no doubt, by the effects of post-traumatic stress disorder. Now, contrast that with a drone controlled from a bunker in Nevada which fires a missile into a compound in Northern Pakistan, killing entire families indiscriminately, including babies. They have no time to feel pain in such clinical PlayStation-type destruction.

Is there a choice between the two in terms of their criminality? Are they not both crimes equally worthy of human condemnation? Consequently in this sentencing exercise, we should beware of applying double standards.

Now, for the purposes of these submissions I propose to address four matters and four matters only. Firstly, in terms of mitigation, the period of offending as set out diagrammatically at Annex 4 of our sentencing brief. Secondly, Charles Taylor's role in bringing peace to Sierra Leone. Thirdly, his voluntary departure from office. And finally, his age. I also intend to point to a potential pitfall in the sentencing exercise.

So, first of all, the period of offending. Now, My Lord, I'd inquired of the Court Manager whether our Annex F, which is this chart, could be put up on our screens. Yes.

Now these -- this diagram --

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