Unless expressly stated otherwise, the findings, interpretations and conclusions expressed in this interview are not necessarily those of OSI and OSI does not take a position on the content or accuracy of these findings, interpretations and conclusions.
This interview took place on Wednesday October 15, 2008
Monitor: Good morning Mr. Rapp, thank you for giving me the opportunity to have this interview with you for charlestaylortrial.org
Rapp: I’m happy to do so.
Monitor: Could you tell us something about your background?
Rapp: I’m from Iowa in the United States. For eight years in Iowa I was a United States Attorney, a presidentially appointed federal prosecutor from 1993 to 2001. In May 2001 I joined the International Criminal Tribunal for Rwanda, the Office of the Prosecutor as a senior Trial Attorney. Here I led the Media Trial, the trial where two of the people who we alleged, one individual who was in control of RTLM radio and one individual who was the editor of Kangura Newspaper, were charged for genocide and public incitement to commit genocide and other crimes relating to the use of the media to incite the Rwanda genocide. A case that resulted in a conviction on trial level in September 2003 which was substantially upheld on appeal in December 2007. After that I continued working at the International Criminal Tribunal for Rwanda preparing other cases and was appointed in May 2005 as Chief of Prosecutions which is not the same as being Chief Prosecutor, I was the individual essentially in charge of all of the trial teams that were presenting cases in Court in Arusha (Tanzania). In December 2006 I was appointed Chief Prosecutor of the Special Court for Sierra Leone. I came to Freetown in January 2007. (Note Monitor: for more information on the background of Stephen Rapp go to: sc-sl.org, The Court, Organs, Office of the Prosecutor)
Monitor: And who appointed you as Chief Prosecutor of the SCSL?
Rapp: The appointment for Trial Attorney is essentially a UN civil service program. Essentially one applies, goes through the interview process and is hired based upon the basis of professional qualifications. The position of Chief Prosecutor for the Special Court for Sierra Leone is an appointment at one of the highest levels, under the agreement and the Statute regarding the Special Court for Sierra Leone that appointment is made by the Secretary General based on nominations made by UN member states.
Monitor: As you were saying, before working for the SCSL you worked for the International Criminal Tribunal for Rwanda, can you tell us, how would you compare that experience to your work for the SCSL?
Rapp: The statutes of these Courts are very similar, except of course that the Rwanda Tribunal has genocide in its statute. And as a matter of judicial notice genocide was committed in Rwanda in 1994 and all the indictments as initially filed by the Prosecutor of that Court have alleged genocide but they have also alleged crimes against humanity and war crimes. The statute when it comes to those categories of international humanitarian law between the two Courts is quite similar. And in terms of the procedure before the two Courts, the procedures are fundamentally the same with some exceptions, as a matter of fact, the statute of the Special Court for Sierra Leone provided that the rules of procedure and evidence of the Rwanda Trial were automatically applied to the trials of the SCSL except to the extend that the judges of the Special Court are meeting in priory session. The judges did make a number of modifications to the rules but the essential frame work and the approach of the trials is the same. And the trials at both Courts involve the presentation of evidence in a common law manner in an adversarial manner before a pre judge tribunal with appeals to a 5 judge appeals chamber.
Monitor: Why do you think Charles Taylor’s trial is important, both for West Africa and for international justice?
Rapp: First of all, it’s important for the purpose of ending the greatest crimes that are committed by human beings against other human beings. To hold people responsible for violations of international humanitarian law, no matter what level or what office they held when those crimes were committed. Historically certainly there have been cases of chiefs of state being held responsible in their own countries, often in trials based upon political changes of power. There have been instances where chiefs of state have been held responsible for crimes committed against their own people, such as crimes against humanity or war crimes or crimes against a neighbouring country. But very often these crimes, even though they have involved tens of thousands of victims, have been characterised by impunity by the person committing them, either remaining in power and retiring without trouble, or remaining in power until death or at worst if there was a change of government, going into a comfortable exile. If we are going to deter these kind of offences we have to be able to hold the people at the highest level responsible for these crimes if in fact they are responsible. It is also important that these trials be conducted in a fair and a transparent manner. There are always going to be allegations that certain things are politically motivated and quite often that is a defense which would have basis. But it is important that the highest standards of due process are observed and that individuals at this level have effective advocacy, that they have the right to present their own witnesses from the four corners of the world and that they have their ability to challenge the Prosecution’s evidence in every respect.
Monitor: The original number of prosecution witnesses to be presented was 144. Now more then 60 have already presented their evidence. How long will it take for the witnesses to complete their testimony, and what is your assessment of the evidence provided by witnesses to date – is it what you expected? Better? Worse?
Rapp: First of all, in terms of the actual number we did indeed at first list 144 witnesses, at one point we had hoped to present 72 witnesses live and 72 of them in writing. The ruling by the Trial Chamber on July 15, 2008 ruled in the case of 5 witnesses that we proposed could testify in writing and suggested in regard to others that the Defense would probably have the right to cross-examine those witnesses and therefore we would have to bring them to The Hague to testify live. We have since then been evaluating the witness list and we believe it would be possible to reduce the overall number of witnesses probably to about a 100 or maybe a few less than that. Of that group about 50 will be crime base victim witnesses whose testimony will go very quickly as we have seen in the last three weeks. The main challenge there is to make sure we can bring these witnesses to The Hague as soon as they are needed because of the logistic difficulties: getting people passports, which they never had before from Sierra Leone; visas from the Dutch Consulate and there is no such Consulate in Freetown, we have to get them from Dakar or Accra; making arrangements in terms of their families; dealing with their health care problems which they sometimes have as a result of their victimisation during the Sierra Leone conflict. But they seem to be moving very quickly and we believe that it may still be possible to conclude all Prosecution evidence by the 12th of December. It may be possible that the Prosecution evidence may extend into January but we think we’ll end up in a situation of a 100 witnesses or so with 50 victims, 35 or so insiders or linkage witnesses and 5 or so expert witnesses, don’t hold me to those exact numbers. We believe that at this point however, we’re making very good progress in terms of presentation of the testimony of these witnesses. In regard to our expectations I’ve said in one context that I am pleasantly surprised about several aspects of their presentation of the testimony, I am surprised and pleased that almost all the people we were proposing to call as witnesses have agreed to come. In the Rwanda Tribunal we had problems with a third or more of the listed witnesses who were becoming afraid to testify and did not appear in Court. That happened in the Sierra Leone Court only in a few instances, I know in the case of two Liberian witnesses, but it’s been remarkable that so many have agreed to testify. When we received the ruling on the 15th of July 2008 regarding crime base witnesses there were many people we had not been expecting to call to The Hague. I remember we had a list of about 48 at that point and we began to make contact with these people who were generally living up country in Sierra Leone. I think without exception they all indicated that, yes indeed, they were willing to travel 5,000 kilometres and testify in this case, even though they had not expected to be called. So that has been very good.
The other thing is the testimony of witnesses coming from these backgrounds and testifying in the Sierra Leone Court. One often has difficulties with the testimony because of minor inconsistencies between prior statements, present recollection difficulties with dates and times and directions and maps and all those things; I know defense attorneys, particularly western defense attorneys, sometimes score great points when they can say you were not raped in the bush, you were raped in the house and your statement here says you were raped in the bush, and the witness has to explain that there was a problem in translation or it was a question of being abducted in the house and raped in the bush and that there was no effort to confuse there. But it is quite typical that one has those kinds of challenges. People often don’t think in terms of calendar years and sometimes get very confused about different events during the course of the long civil war and when they were attacked on various occasions. But generally I think what has pleased me, is that the witnesses have held up very well, far better than in my experience at the Rwanda tribunal, in terms of these kind of minor inconsistencies. I don’t think, whatever the Defense may feel, that the Defense has made an effective damage to the Prosecution case.
Monitor: Concerning time frame I have noticed that even the judges adjust to local circumstances so to speak and instead of asking for a date, have asked the witnesses whether it was the rainy season or the dry season.
Rapp: Indeed, and people do that. When we look at the Kouwenhoven case before the Court of Appeal of The Hague, it is sort of interesting. I have read the appeals judgement, which was disappointing in some respects, it is difficult for people to make that kind of adjustments. But I think our judges are familiar with these aspects, particularly having tried a case like this before with these kinds of difficulties and I think that has not been a problem in this trial. The other aspect of it is that in terms of the depth and strength of the insider and linkage testimony, we have not had to rely on one insider only, as in some cases, but we had multiple insiders and multiple individuals involved at each level of the linkage and we submit that their testimony has fundamentally corroborated the testimony of other witnesses and supported the allegations in the indictment.
Monitor: We have noticed that regularly people from Sierra Leone and Liberia come to The Hague as monitors to the trial and this is an initiative from the Special Court. Why does the Court think it is important to have people from West Africa viewing the trial?
Rapp: Well, very important. The Sierra Leone Court is very proud of its outreach program. In the country it is without question the gold standard when it comes to outreach, far better than the program in the Rwanda Court and the Yugoslavia Court, as it relies on local citizens. Several people who were appointed in the districts of Sierra Leone who essentially share information within their area with community meetings and with civil society. During the course of the year they report on essentially making thousands of contacts on behalf of the Court and all of us that work on the Court regularly travel up country and in Freetown and answer questions about our proceedings as a result of which, according to a survey done at the end of 2006, 90% of the people in Sierra Leone are familiar with the work of the Special Court and more than 80% believe it has been a force for peace and security in the country. Of course we have had the advantage that these trials took place in the country itself, an advantage the other Courts (Rwanda and Yugoslavia) had not. Of course the Charles Taylor case is different, we are trying this in The Hague, more than 5,000 kilometres from the scene of the crime and I think that presents an extra challenge to us, to make sure the information gets back to the people who were victimised by these crimes. Additionally we speak to people in Liberia even while we have no power to charge Mr. Taylor with crimes that were committed in Liberia. But the people of Liberia are very, very interested in this trial because he was their former chief of state and also because many see a pattern between the kind of campaign of terror conducted in Liberia and the campaign of terror that was conducted in Sierra Leone. Of course we often do present evidence about similar acts of Mr. Taylor in Liberia because that is permitted under rule 93 and that is important on the question of intent and plan in terms of the crimes that we are alleging.
Monitor: This is not the only trial being conducted by the Special Court for Sierra Leone – three other major trials have taken place in Freetown to try and address the crimes which were committed during Sierra Leone’s war. Can you tell us a little about these trials, why they are also important, and how they relate to the Charles Taylor trial?
Rapp: Of course we have concluded the two trials in Freetown, the one on the three accused of the AFRC who were convicted in Trial Chamber Two, the chamber that is hearing the Charles Taylor trial and whose convictions were affirmed on appeal in which the Prosecution won several important legal victories. The same is true for the CDF trial, the two surviving accused in the CDF case were convicted by Trial Chamber One in August 2007, sentenced in October 2007 and their convictions were affirmed by the appeals chamber. They additionally granted the Prosecution’s appeal to convict them as well for certain crimes against humanity and as well to increase their sentences. There is a third trial, the trial against the three leaders of the RUF, which concluded evidence in June this year before Trial Chamber One. Closing arguments were heard on the 5th of August 2008 and we anticipate a judgment on the merits in November 2008 and if they are convicted sentencing proceedings in December 2008. And then very likely appeals whichever way it goes, thereafter.
It is of course our position that Charles Taylor was in effective control of the RUF and even if he were not to be proven to be in effective control of the RUF, we presented evidence as well that he aided and abetted the RUF in their campaign of terror and the commission of atrocities during the relevant period of the Court’s jurisdiction and so the RUF case and the Charles Taylor case are very closely related. Additionally the AFRC, the group of non commissioned military officers that took over the government of Sierra Leone in May 1997, invited the RUF to rule with them and formed the junta in which the AFRC and the RUF ruled together.Then in February 1998 when they were overthrown, they went into the bush and in the lion’s den continued a campaign of atrocities. The worst atrocities in the war were committed in 1998 during initially their move out of the capital, but then as we allege with Taylor’s assistance and arms and direction to take over the mining fields in Kono and conducted campaigns with names like “No Living Thing” and “Spare No Soul” in 1998. The most notorious part of which was the taking of Freetown in January 1999 by largely a group of AFRC soldiers but with substantial assistance of the RUF, the RUF working in concert with the AFRC in joint operations and so we allege as well Taylor’s effective control of the AFRC. So those cases are quite related. Obviously the Taylor position appears to be that indeed these crimes were committed but that he is not responsible for these offences, others are responsible and to the extend that he had contact with them: he only was doing that at the direction of international groups that were trying to make peace in Sierra Leone.
Monitor: Recently witnesses have started to testify under Rule 92bis of the Rules of Procedure and Evidence of the SCSL, meaning that they can give their testimony in writing, so they will not be examined by the Prosecution, however they must be prepared to be cross-examined by the Defense, and when necessary, be questioned by the judges, can you tell us more about this and how has it been going so far?
Rapp: We had hoped to make use of the provision of Rule 92bis that would permit witnesses, whose testimony would not directly go to the conduct of the accused, to have their testimony presented in writing and without the necessity of them appearing at all in Court. That was something that was upheld in the Yugoslavia Tribunal by the Milosovic Appeals Chamber. but at least thus far, in the cases that the judges have decided on, they have said that even though it does not go directly to the acts and conduct of the accused, if the witness speaks of the rebels or speaks of the RUF or speaks even of Sam Bockarie or Brima Kamara or somebody else, but the fact that those individuals may be proximate to Charles Taylor means that the Defense should have an opportunity to cross-examine those witnesses. That creates challenges, certainly logistically, in bringing these witnesses to The Hague and it is also a bit of a challenge with witnesses who sometimes went through great trauma and who want to be able to tell their story. It puts sometimes a bit of a disadvantage that they put in their testimony in writing and then immediately subjects them to cross-examination instead of giving them a chance to tell orally what occurred. Obviously people, like yourself, watching the trial and reporting about this, have a difficult time knowing exactly what their testimony is about and then are cross-examined only on details and on minor inconsistencies. This is a little less than ideal. Of course we are also looking at the reason that we are not bringing these people potentially in the first place live, because we were interested in doing this trial expeditiously and we didn’t want to extend the trial so long that the Court ran out of resources before the Defense case started. We look very carefully at the witnesses, about half of them we are putting on to tell their story, sometimes in a briefer format by direct examination and then going to cross-examination. In other situations looking at their testimony and the overall situation, we have decided that it’s okay to put their testimony in writing and then let them go to cross-examination, understanding of course that we do have the right to redirect questioning following their cross-examination.
Monitor: The judges have ruled that some witnesses are not permitted to testify with protective measures as they are category one witnesses and only category A (victims), category B (children) and category C (linkage witnesses) witnesses are entitled to protective measures. Can you please elaborate?
Rapp: This relates to an order in another trial and the rule is that protective measures remain in effect if they were issued in a prior trial and they continue in effect for this one. We have noticed that with the other judges there is some modification of those protective measures with witnesses that have not testified in a prior trial. We have made protective measure requests and those were ruled on by the judges, in some cases the judges denying some of the protections that we wanted but we proceeded to present these witnesses. What has occurred here, and it may seem a more technical issue than anything else, was that our reading of that original rule was, that all of the witnesses in the broad category were viewed as protected and those A, B, C categories were entitled to additional protection but that the first category were entitled to testify without disclosure of their identity. The judges have ruled to the contrary on that, and that is then the subject of an appeal to the Appeals Chamber on which there has not yet been a ruling. Intriguingly one witnesses that was of that group we were appealing about, who had come to The Hague once, decided to come to The Hague again to testify without protective measures. So we have been able to resolve that one, but there is now another one, I think witness TF1-062 on which we served certification to appeal and that issue may be resolved as well.
Monitor: Yes, TF1-215 testified yesterday…
Rapp: The 215 first refused to testify unprotected, we prevailed on him to testify, but part of our concern is, we need to move these witnesses forward and we don’t want to delay the trial because the appeals process can take a while and, if there is any way we can resolve it, the witness is satisfied with the protection without anonymity, we’re willing to do that. But we still have several witnesses who insist on anonymity, who are afraid that if people know who they are, if their identity publicly gets out, they are in trouble, and we are waiting on decisions by the Trial Chamber or by the Appeals Chamber as the case may be.
Monitor: Last Monday (October 13, 2008) in connection with prosecution witness TF1-076, a female rape victim, questions were raised by the bench concerning the Witness and Victims Section redacting transcripts without a court order for witness protection purposes. At the latest next Friday by 4 p.m. (October 17, 2008) the Head of the WVS has to report to the Court about this. Can you elaborate?
Rapp: I will obviously wait on the judges in this case to make a ruling. It has been my experience that in each of these Courts there is a redaction process going on by the WVS and the people who are employed in that; that is the standard procedure because sometimes minor mistakes are made, names are let out and no one has captured it at the time. Therefore, given the primer importance of protecting witnesses, the WVS is taking on that responsibility. The judges apparently were not aware of that and want to have a hearing on this process, which has been followed in the other trials of the SCSL and also in the Rwanda Court. It is perhaps a process that never had appropriate judicial oversight and so we will see what happens with that. I think it’s important that there be that level of protection but of course it is also important that the rules be complied with and that the WVS will be doing it subject to appropriate judicial supervision.
Monitor: We have heard that a body has been found that is believed to be the body of Johnny Paul Koroma, the leader of the AFRC. The indictment against him is still in force. Can you tell us what the latest developments are in connection with the identification of this body?
Rapp: Understand that we have been searching for several years for Mr. Koroma or for information that he were alive. Certainly there have been reports from many witnesses that they heard that he was ordered killed, even a case of a witness who testified that he saw someone else wearing the coat of Johnny Paul Koroma. Unlike the case of Sam Mosquito Bockarie who was an indictee of the Court and who was killed by Taylor’s forces in Liberia in 2003; his body was surrendered to the Special Court and it was possible to make an identification and so the indictment against him was withdrawn. It is true that recently with some information provided by informants a body was uncovered in an area where there are quite a number of other human remains and it was possible to extract from a tooth sufficient DNA material and then with matching material from a family member an analysis is under way in a European country that has been assisting the Court. There is a chance that this is his body but it is uncertain because there was nothing with the body that could identify him. It was entirely a skeleton which is consistent with someone having been buried for five years without any kind of coffin or casket. So if this is the body and we are able to make a positive identification we could withdraw the indictment against Mr. Koroma. If it’s not, we will continue to explore and to seek information perhaps to identify other human remains and seek to determine if they are Mr. Koroma’s. Of course if we can not at the end of the day confirm a body as that of Mr. Koroma we do have the issue for our Courts, as is the issue of other ad hoc tribunals. We don’t want to be in a situation where it develops that he is alive but the Court has closed its doors and as a result of its closing its doors he essentially escapes justice. So if we don’t, we also have to look at the possibility of developing an alternative way to try his case. Either the Court retaining a residual capacity to go back into active work if he were found or his case should be transferred. It is possible under our rule 11bis to transfer the case of an indicted individual to a national jurisdiction with the understanding that that individual would then be tried in that jurisdiction and that the international arrest warrant that we have had issued would essentially work in favour of that jurisdiction so that there would be a trial if he were alive. But we are working on this issue in the hope that we can resolve it one way or the other.
Monitor: Are you familiar with our site charlestaylortrial.org and do you ever visit our site?
Rapp: Yes and yes. All the time.
Monitor: The goal of the site is to provide access to information about the trial for West African journalists and journalists in general and anyone who is interested in the trial, especially in West-Africa. Do you think this site contributes to that goal?
Rapp: Very much so. It’s quite useful. I know many people who do look at it and even those of us who work at the Court and who often listen to the trial look at the site. We do have the ability to access transcripts through the UN e-mail system but that is often troublesome and delayed so it is very useful to have that information to get a sense to what the witnesses are saying during public sessions. We also note that many times news organisations actually use portions of the site in their articles. I know The New Democrat Newspaper in Liberia has often published in the case of significant witnesses large, large extracts from the website and several times extracts of the website have circulated by other news organisations so they have turned up in other newspapers. We think it’s really important.
Monitor: Do you have any suggestions to improve our site or are there areas you would like to see covered by the site?
Rapp: My main concern is that sometimes there is a loss of signals which causes the proceedings not to be streamed over the internet. This happened even the other day during a dramatic testimony of a witness whose children had been beheaded, with the result that this part of the testimony could not be found on the website. Otherwise it is fine as it is.
Monitor: That was the last question. Thank you very much for your time.