Now it's quite clear, Madam President, that those terrorising that individual in the clip were ECOMOG soldiers. And is it to be said that ECOMOG weren't also intending terror when they went into Sierra Leone? And indeed perhaps Liberia? Again, what springs to mind is the idea of selective prosecution.
Now, as I say, we have never, and still do not, deny that grievous crimes were committed in Sierra Leone. From the start, the sole issue boiled down to: Does Charles Taylor bear the greatest responsibility for the crimes committed in that country? That is the sole issue in our submission.
And we say that it remains the sole issue despite various distractions. First of all, the fact that for much of his cross-examination, something like two-thirds of his cross-examination, Mr Taylor wasn't asked about events in Sierra Leone. I'm sure it did not escape your Honours' attention that for the most part his cross-examination concentrated on events in Liberia. We say that is a total distraction.
Likewise, there was an even greater distraction, although it attracted the greatest publicity, and that is the appearance of Naomi Campbell, her agent, and also Mia Farrow. Why that evidence was called I'm still at a loss because the question is: How does a gift of diamonds to a beautiful woman, diamonds being of course a girl's best friend, in South Africa, link Charles Taylor to the purchase of arms which, on one floated theory, arrived in Magburaka at some later stage in 1997? I don't see it. In our submission, the calling of Naomi Campbell was a complete disaster for the Prosecution. My learned friend, Ms Hollis, was left looking at a bleeding hole in her foot and a smoking gun in her hand asking, "I didn't know it was loaded." Because they ended up, first of all, seeking to impeach their own witness, then when that didn't work, trying to abandon her. Oh, she's not a Prosecution witness after all. Well, who obtained a subpoena to call her? Why was she called by the Prosecution if she is not a Prosecution witness? But in any event, that we say was a total distraction.
Turning now to another topic. Despite spending four and a half years in preparation, a further 13 months in presenting their case, and calling some 30 or so linkage witnesses, it is somewhat surprising that there is very little direct evidence to link the accused to the crimes alleged. For the most part, this Prosecution's attempt to link the accused to the alleged crimes has largely focused on hearsay, circumstantial evidence and broad assumptions. There were very few examples of direct personal knowledge of the accused commanding or assisting the RUF or the AFRC. One exception was Alimamy Bobson Sesay, upon whose testimony much reliance was placed by your Honours at the time of our rule 98 submissions. What I would like you to bear in mind when assessing his testimony what Mr Munyard will have to say tomorrow morning about his credibility.
Now, this glaring deficiency in the Prosecution case, this absence of direct proof, is reflected in their final brief, on more than one occasion. But let me give you an example. Can we turn, please, to paragraph 214 in the Prosecution's final brief?
I'm not going to read out the whole of that paragraph. Can we begin, please, five lines from the bottom?
"In addition, it is reasonable to conclude that Taylor was able to bribe ECOMOG to allow or facilitate the movement of material through whatever checkpoints ECOMOG had been able to establish, given that his NPFL had been able to bribe ECOMOG to sell material to it and that ECOMOG had also apparently sold or bartered other supplies as well."
Now, "reasonable to conclude"? Now, I can't really recall any evidence, in our submission, from which such a conclusion could be reached. This is where we say the Prosecution are making assumptions in the absence of proof. That in effect, put bluntly, when no proof is available, let's make it up.
Because we submit that in their final brief, rather than point you judges to their evidence, they are asking you repeatedly to draw far-fetched inferences. For example, on the critical issue of joint criminal enterprise, we submit that's what they are doing. Now, this absence of proof, in our submission, had been noted as long ago as June 2000, by an independent individual who was in a position to know. Now, in their final submissions to your Honour, the Prosecution have sought to malign the United Nations Secretary-General's representative in Liberia. They have in effect claimed that Mr Taylor co-opted the representative of the Secretary-General very early on. And he, Mr Felix Downes-Thomas, in effect, became Mr Taylor's agent and his mouthpiece to the United Nations. Because of this relationship, Downes-Thomas gave Mr Taylor these code cables which were internal cables for the United Nations. On none of these cables, they assert, was Mr Taylor named as a recipient or as someone who should legitimately have access to them.
Now, one can understand why this Prosecution are concerned to malign Mr Felix Downes-Thomas in this way because many of the code cables he provided, provide inconvenient proof for the theory they have been floating from the outset. Let us examine why this Prosecution would seek to impugn this evidence, but perhaps I should pause and make a distinction. It's one thing impugning Downes-Thomas. It's another thing to try and impugn the contents of those code cables. Whatever they might want to say about Downes-Thomas, there we have in black and white contemporaneous documents, made at the time when no one could have anticipated a criminal prosecution. And thus, judges, such evidence, contemporaneous, made without criminal trial in mind, to that kind of evidence should attach a great deal of weight. And that's the kind of evidence we've produced consistently before this Court.
But I also ought to remind you of some of the history surrounding those code cables, because your Honours will recall that they emerged from Mr Taylor's archives. Now a little history. When way back, it seems such a long time ago now, in the summer of 2007, we came before your Honours to seek an adjournment of these proceedings so that we could get up to speed with the facts, we made mention of the fact, or I did, that I'd recently returned from Liberia where I'd been given a large volume of documentation which had hitherto been in Mr Taylor's archives. That struck fear into the heart of this Prosecution, which is why they went to the extent of filing a wholly unmeritorious motion seeking the disclosure of those Defence documents. Because they knew those archives might well contain potent evidence and that proved to be the case.
So the point as to how they came to be in Mr Taylor's hands, in our submission, is totally irrelevant. They can malign Felix Downes-Thomas till the cows come home, but the fact of the matter is, what he wrote in those documents cannot be gainsaid. And I bear in mind that some of your Honours come from a common law tradition and you will recall that famous case of Regina v. Sang in the House of Lords, irrespective of the sort of evidence, so long as it's relevant to an issue, it's admissible. So as I say, they can malign him as much as they want. And we need to bear in mind, from what this evidence derives its potency. First of all, it's correspondence between individuals, persons who have no reason not to tell the truth. It's between Downes-Thomas and his bosses in New York or vice versa. They have no motive whatsoever to lie about to each other, none whatsoever. As I've also mentioned, these documents are contemporaneous. They are not created with criminal proceedings in mind. We submit that some of the most powerful evidence admitted in this case is contained in those code cables, coming, as it does, from an untainted, independent source.
So can I now take your Honours to one such code cable, please? It's exhibit D-255. And, remember, I am drawing your Honours' attention to this document bearing in mind the point we are making about the absence of direct proof. And could we go, please, to page 10 in the top right-hand corner? I'm sorry, Madam Court Manager, could we just go back to the front page so that we can - we can see for ourselves the date of the document. We see that it's dated the 19th of June of 2000. It's from the maligned Downes-Thomas in Monrovia, to Prendergast, his boss in New York. Now let's go to page 10.
"There is no denial about President Taylor's association with Foday Sankoh and with the RUF. President Taylor himself has gone public, and on record, to confirm that Liberians are involved and actively so in the Sierra Leone crisis. How such a situation developed, as well as its various ramifications has been the subject of communications from UNO to HQ. What appears to be the crucial aspect of this omnibus allegation is that, 1, the Government of Liberia and/or President Taylor currently provides arms, ammunition, training and personnel to the RUF. 2, the Government of Liberia and/or President Taylor, is able to assist in this manner because the RUF supplies illicitly mined diamonds to the Government of Liberia or President Taylor, who not only sells the gems but takes a huge percentage of it for personal and other purposes as such. Thirdly, President Taylor has a vested interest in the continuation of the crisis in Sierra Leone or in the maintenance of a status quo that promises the continuation of one and two above."
Pause. That in a shut shell is the Prosecution allegation.
He continues: "The basis and evidence for this crucial aspect of the allegation continues to remain unavailable to UNO. Since headquarters has yet to convey such a basis or knowledge of the evidence, it must be presumed that it also remains unavailable to it."
So what Mr Downes-Thomas is saying, "Look I'm your man on the ground. I've got no evidence of it. Likewise, you in New York, my boss, with all the resources available to you, you haven't told me about anything like that, so where is the evidence? Where is the beef?"
"Both the British newspaper, the Guardian, and the American Washington Post have carried stories on this matter and have provided generalised snippets of related information which only whets the appetite but offers nothing truly substantive. It would be most useful for all concerned, as well as for their reputations, to have the basis and evidence for this crucial aspect of the allegation made public. And let the chips fall where they may. One of the major arguments for publicising the evidence is that in so doing the opportunity will be offered to devise ways and means to effectively put an end to the alleged trafficking in a manner that will not visit hardship on innocent citizens."
So we have this situation, way back in June of 2000, Mr Downes-Thomas is asking the question which over a decade later we still ask on behalf of Charles Taylor: Where is the evidence, the direct proof? Where is it?
Now, again, in this regard, in opening the case for the Prosecution, we were told by the then chief Prosecutor, Stephen Rapp, and Madam case manager, can I invite our attention behind divider 3, 3B, which is an excerpt from testimony dated the 4th of June 2007. Now, Mr Rapp, way back then, said this, and I pick it up at line 8:
"In 1988, or 1989, with the military training in North Africa of Charles Taylor and Foday Sankoh and other people who later became leaders of the RUF and NPFL, a plan was there formulated by the accused and others to take over political and physical control of Sierra Leone in order to exploit its abundant natural resources and to establish a friendly or subordinate government there to permit, to facilitate, this exploitation. This was part of a larger strategy that included helping others militarily in their respective revolutions to take over their respective countries and the first one was to be Liberia. For that, there was created the National Patriotic Front of Liberia, the NPFL, and then of course there was the RUF, the Revolutionary United Front, created for Sierra Leone. The argument made - the agreement made by the accused and Sankoh was to begin, as I say, in Liberia with the help of Sankoh's forces, and Liberia would then be used as a base from which to move into Sierra Leone with the help of the forces of the accused. As we have indicated many times, access to Sierra Leone's abundant resources was a primary objective, but Sierra Leone would also be a source of manpower."
I pause there. This was Mr Rapp lucidly setting out what he claims was the plan. Now, first of all, we should note, where was that agreement reached? In Libya. What were the terms of that agreement? The exploitation of Sierra Leone. By what means was that to be achieved? By the creation of two organisations, the NPFL and the RUF. So this, then, should be the golden thread running throughout this Prosecution. So when then we come to look at various stages along the road to this Prosecution, we need to pause on occasions and we will, and ask ourselves how consistent is this piece of evidence with that overall plan? But I mention this opening for this reason. Because, remember, this is the plan which is supposed to underlay not only what happened in Sierra Leone but also what happened in Liberia. It is the foundation-stone of this whole Prosecution, this plan.
Now, almost four years later, your Honours may have noticed that this plan has been quietly jettisoned from the Prosecution's final brief. I ask you, please, to peruse that document with care, line by line, not missing a definite or an indefinite article, and see where there is mention now, four years later, of that plan, fashioned in Libya which we were told was the foundation of this Prosecution. Now, Mr Anyah will deal in due course with that suggestion made by Mr Rapp in opening in a little more detail. I merely highlight it here.
And also, can I commend to your Honours paragraph 738 to 979 of our written closing submissions, researched and written by Mr Silas Chekera, which in our submission totally destroys any notion of joint criminal enterprise from an evidential point of view.
Now, your Honours, can I now mention another aspect of this Prosecution which is still of abiding concern to us? Of the linkage witnesses called, the so-called insider witnesses, and remember some 30 or so were called, 14 gave evidence in either closed session, that is behind closed doors, so that the public cannot see or hear, or with pseudonyms. And even now this morning we had an example of my learned friend, Mr Bangura, being unwilling to mention the name of a protected witness, even the TF1 number of that witness. So that we submit that much of the Prosecution has been.