Defense Makes Oral Submission of No Case Answer

Monday April 6, 2009.

9:30am: The defense team for Charles Taylor today made an oral submission of no case to answer before the judges of Trial Chamber II. This submission, also known as Rule 98 submission is an oral arguement put forward by the defense that the prosecution failed to present evidence or prove its case beyond reasonable doubt on all counts in the indictment that would warrant a conviction against Mr. Taylor.

The defense oral submission was made by counsel for Mr. Taylor, Mr. Morris Anyah, with Justice Richard Lussick presiding. In commencing his presentation, Mr. Anyah stated that he wanted to move the court to dismiss all charges against Mr. Taylor.  He said that the presecution evidence that has been presented to date does not support or was insufficient to warrant any conviction against Mr. Taylor.  He said that the basis of his request had nothing to do with the crime base evidence that was presented by the prosecution as the defense has not disputed any evidence that crimes were committed in Sierra Leone.  He said that the defense was in agreement with the prosecution that terrible things happened in Sierra Leone during the conflict.  The problem, he informed the court, had to do with the linkage evidence presented by the prosecution. He informed the judges that during his submission, enphacis will be put on the mode of liability as required for the crimes charged and the issue of Joint Criminal Enterprise (JCE). He added that during the presentation of the prosecution’s case, there has been a lack of evidence for the mode of liability required for the crimes charged.

Explaining the procedure that his submission would take, Mr. Anyah told the court that he will proceed in this order:

1. Factual Record.

2. Suggest approach that the court should adopt.

3. Indictment: To consider certain locations where no evidence has been led by the prosecution.

4. Review of Evidence.

5. Ask for the dismissal of the counts against the accused.

Mr. Anyah then moved to the discussion of the specific points above.

1. Factual Record: Mr. Anyah stated that from January 2008 to the conclusion of the prosecution’s evidence, 91 witnesses testified against Mr. Taylor. He said that two prosecution witnesses, TF1-196 and 081 were withdrawn as prosecution witnesses and that a total of 473 exhibits have been tendered in court by both prosecution and defense teams. He referenced a few decisions that have been rendered by the Trial Chamber in the Taylor trial, including some on agreed facts and law in the trial.

2. Approach: Mr. Anyah stated that in making his submission, he would first articulate the law, citing the elements of the offences, and also articulate the respective modes of liability. Giving terror as an example, he said he would seek to explain whether said terror was part of JCE or Superior Responsibility.

3. Indictment: Mr. Anyah informed the court that he would seek to explain that no evidence was led by the prosecution for certain crime bases mentioned in the indictment. For example, in Count 1 of the indictment, Mr. Anyah explained that for the offence of burning as part of Acts of Terrorism in the Western Area, no evidence was led for certain crime bases mentioned in the indictment. These, he said, included Goderich, Kent, Grafton and Tumbo. He also explianed that one of the witnesses who testifued about alleged attrocities in the Western Area spelled the crime base ‘Tombo’ which was different from the ‘Tumbo’ as spelled in the indictment. Mr. Anyah stated that for lack of evidence for these crime bases, they should be stricken off the records. He also said that for the crime of burning in Kono, the indictment mentions the crime base ‘Wendedu’ which was spelled in court as ‘Wendadu.’ For lack of evidence for the crime base ‘Wendedu,’ counsel asked that it be stricken off the records.

Under Counts 2-3, Mr. Anyah said that for the crime of unlawful killing in Kono, the indictment mentions a crime base ‘Bomba Fuidu’ for which no evidence was led by the prosecution. For unlawfull killings in the Western Area, specifically ‘Tumbu,’ counsel said that evidence was led for ‘Tombo,’ not ‘Tumbo.’

Referencing Count 9 of the indictment, which deals with recruitment of child soldiers, the prosecution alleges that this was done by the fighting forces throughout Sierra Leone. For the crime bases mentioned for which no evidence was led by the prosecution, counsel asked that the crime of recruitment of child soldiers should be stricked off as no evidence was led for these places. Counsel referenced a few other places in the indictment for which no evidence was led by the prosecution.

4. Modes of Liability

a. Planning: Mr. Anyah stated that paragraph 33 of the indictment delineates the modes of liability for planning. He referenced the Special Court Trial Chamber’s case law that there were both preparatory and executory stages and that the level of participation in either stages must be substantial.  He explained that the mens rea for planning must be a direct intent. He said that the prosecution has led vary little evidence of planning against Mr. Taylor.  He said that Witness TF1-371 testified that sometime in 1998, Sam Bockarie received orders from Taylor to maintain RUF hold on Kono. Mr. Anyha explained that looking at the elements of planning, the witness’s testimony was not applicable to the preparatory and executory phases of the crime. He further referenced the testimony of another prosecution witness who testified that the 1999 invasion of Freetown was planned by the RUF. He said that the same witness later said that no senior RUF commanders were involved in the Freetown invasion but that the attack was undertaken by AFRC soldiers. Mr. Anyah enphacised that the said evidence was not capable of supporting a conviction. Mr. Anyah also referenced another witness’s testimony that Superman received ammunition from Jungle, who inturn had obtained the ammunitions from Mr. Taylor for Operation Fiti Fata. Mr. Anyah said that such evidence does not apply to planning.

b. Committing: Mr. Anyah said that the element for committing required a dirtect and physical perpetration of the crime by the accused. He said that there is no evidence supporting the direct and physical perpetration of any crime by the accused.

c. Instigating: Mr. Anyah explained that the actus reus of instigating requires that the accused should have urged, encouraged or prompted another person to commit the crime and thet the accused’s act/ommission must contribute substantially to the conduct of the perpetrator. Counsel referenced a witness’s testimony that Mr. Taylor spoke to Johnny Paul Koroma via satelite phone and told him to capture Kono. Counsel said that this in itself does not have any substantial contribution to the conduct of the crimes in Kono. He referenced another witness’s testimony that there was a meeting in Buedu during which Gen. Ibrahim Bar informed them that Mr. Taylor recognized the AFRC junta and adviced them to capture Kono and build an airfield. He said the same witness had acknowleged to the Sesay defense team that he did not attend the said meeting. Mr. Anyah said that the law requires that there should be a causal link between the accused’s act of instigation and the perpetration of the crime. He said that in this case, the said causal link was absent in the evidence. He also explained that the mens rea for instigation requires direct intent, not recklessness.

d. Ordering: Mr. Anyah referenced the Trial Chambers case law definition of this as a person of authority ordering a subbordinate to commit an offence. He said that for this to happen, there must be intent and forseability of the commission of the crime. He referenced a witness’s testimony that Mr. Taylor ordered Sankoh to travel to Ivory Coast for peace talks in 1998 and that Mr. Taylor ordered that artillery to be sent to the RUF in Gbarnga in 1992. Mr. Anyah stated that it is a judicially noted fact that Sankoh was in custody in 1998 and was only transferred to Sierra Leone in 1999.

e. Aiding and Abetting: Mr. Anyah explained that there had to be assisting and encouraging for this to happen. He said that the actus reus for this requires the accused to have given practical assistance, encouragement and moral supprt which had a substantial effect on the conduct of the crime. He referenced the judgement in the CDF case that  aiding and abetting must be specifically directed, must have a substantial effect and must go to a certain specific crime.

Counsel referenced a witness’s testimony that from 1991 to 1996, the RUF received arms and ammunition from the NPFL in Liberia.  He, however, informed the court that during this period, the border between Liberia and Sierra Leone was closed for most of the time. He said that this was confirmed by prosecution witness Vamunya Sheriff and Moses Blah. The witness was also quoted as having said that sankoh travelled to Liberia to collect radios. This, counsel said, was not substantial to the perpetration of the crime.  Counsel also said that the indictment period only covered crimes after 1996, not 1991 to 1996. Counsel also referenced testimony that Bockarie bought ammunition from Taylor in Liberia, using money obtained from Kono. This, he said, did not amount to aiding and abetting. He also referenced another testimony that SAJ Musa advanced to attack Freetown on his own vilution and not on orders from Bockarie. He refereneced the Trial Chamber I ruling in the RUF case that the Freetown invasion of 1999 was undertaken by the AFRC and not the RUF. Coulsel further referenced another witness’s testimony that  Mr. Taylor held a meeting with AFRC soldiers in Liberia during which Johnny Paul Kormoa was present. He said that Taylor adviced the AFRC soldiers to be united with the RUF. He said this meeting took place in May 1998. According to Mr. Anyah, the same witness said that he had no knowlege of Johnny Paul Koroma trvelling to Liberia from May 1998 to August 1999. He also said he was not aware of any trade of diamonds between Johnny Paul Koroma and Charles Taylor.

Mr. Anyah explain that there is precedent in the CDF judgement to support that words of encouragement, moral support, provision of medicines, affirmation that actions are appropritate does not constitute aiding and abetting. He said that an aider and abetter must be aware of the perpetrator’s intentions (the mens rea element). He said that the same principle has been upheld in various international tribunals.

f. Joint Criminal Enterprise (JCE): Mr. Anyah noted that there is a present application before the Trial Chamber on the issue of JCE and until the Chamber disposes of the application, he does not wish to discuss the details. He, however, raised questions about the JCE pleaded in the indictment against Mr. Taylor. He asked to know what the common purpose of the enterprise was and whether such JCE was done during the time period that falls within the court’s jurisdiction. He said that to establish JCE, the accused must participate in the common design or purpose. He said that the mens rea element requires a shared intent by the parties to perpetrate the crime and then one party commits the said crime. He said the accused has to contribute to the enterprise and the crime which is foreseable actually takes place. Referencing a decision from the ICTY, counsel said that the accused must take risk that such foreseable crime must occur. Counsel referenced the Chief Prosecutor’s opening statement in the trial that Sankoh and Taylor met in Libya in the late 1980s where they agreed to assist each othet to capture political power in Sierra Leone and Liberia. Counsel said that while there are allegations that Taylor assisted Sankoh in Sierra Leone, no reference has been made to any assistance rendered by Sankoh to Taylor in Liberia, thereby fostering the agreement reached in Libya. Counsel then asked to know for how long and during what time period did the said JCE take place? He said that the Court’s jurisdiction covers crimes committed from Nov. 30, 1996 to Jan. 18, 2002. He said while Taylor and Sankoh had their plans in Liberia, the coup of May 25 cannot be part of that plan. He said that prosecution has suggested that the purpose did not change but did not lead any evidence to bear out that common plan remained one and the same. He also said that while Sankoh was in custody, he had problems with Bockarie and so how would the meeting of the minds between Sankoh and Taylor transfer to Bockarie.  He also asked how Issa Sesay could have become part of the same common plan.  He said that for JCE to take place, there must be a shared criminal intent of all the co-perpetrators. This, he said must be the same with Bockarie, Sesay, SAJ Musa, Tamba Brima, etc.  According to Mr. Anyah, there is evidence that in attacking Freetown in 1999, SAJ Musa wanted to reinstated the Sierra leone Army.  If the parties actied with different intents and purposes, how can Mr. Taylor be responsible, he asked.  He said the prosecution should lead evidence about the change of purpose. Counsel referenced several witness testimonies such as Taylor being kept abreast fo issues in Sierra leone. He referenced that another witness said that he did not see or hear any messages from Taylor to RUF about the Freetown invasion, while another said he did not hear of any transfer of arms or discussion of military strategy with Bockarie. According to another witness, Taylor met with the West Side Boys in Liberia and encouraged them to respect the Lome Peace Agreement. Counsel asked whether this gives any evidence of shared intent for JCE and whether this was not in conflict with Taylor’s plan with Sankoh in Libya. Another witness said that when Sankoy and Taylor met in Libya, there was a third person from Gambia and the three men agreed to assist each other in their respective countries. Counsel asked whether there was any evidence that said assistance was rendered to attack Gambia. He said that noting the different purposes with which the various fighting forces attacked various places, like SAJ Musa wanting to reinstate the army, etc, the prosecution failed to establish the starndard to prove that there was JCE.

g. Superior Criminal Responsibility: Mr. Anyah noted that the prosecution had alleged that Mr. Taylor held a position of superior responsibility and exercised control over the RUF, AFRC and Liberian fighters, that he knew or had reason to know that they had coomitted crimes or were about to do so but had failed to take measures to prevent or punish the commission of said crimes. He said that the prosecution had failed to prove this.

Legal Requirements: To prove superior criminnal responsibility, there must be effective control to prevent or punish the commission of crimes and that the accused must have the ability to prevent or punish. Counsel asked whether Taylor would have had the material ability to prevent or punish criminal conduct of Superman.

On the abduction of UN peacekeepers, a witness testified that the former UN Secretary general Kofi Annan asked Mr. Taylor to secure the release of the abducted peacekeepers. He said that Mr. Taylor was in a dilemma; one was if he got involved, they would establish more links between him and the rebels, and if he refused to be involved, they would say he was obstructing the process. In either case, Taylor could not win, Mr. Anyah said.

Concldung, Mr. Anyah stated that every count in the indictment fails. He also said that while he would not push for the assessment of the credibility of some prosecution witnesses, he would seek that where the evidence is rife and inconsistent and can be regarded as discredible, the judges could use their discretion to rule such evidence out.

Counsel then concluded his submission.

Presiding Judge, Richard Lussick thanked Mr. Anyah for his submission and noted that the prosecution would need to respond. Prosecution counsel Ms. Brenda Hollis informed the court that the prosecution will be ready to respond on Thursday April 9, 2009. The judgess accepted this proposal and stated that the said response will take place at 9:30 on Thrsday April 9, 2009.

Court adjourned.


  1. From a lay mans point of view I don’t think because certain areas of Sierra Leone are spelt wrong is enough to cancel some of the indictments. Having said that I believe the overall argument of the Defense in regards to inconsistencies of witnesses is strong.

  2. Totally agree Aki.

    I believe some of the charges will be drop but the trial will continue.

  3. Bravo to Mr. Taylor excellent defense team and all of our good and intellengent friends. Remember that good team work brings about success. Let’s keep going for history will judge us kindly.


  4. Aki,

    I agree that the spelling of the names are not sufficient grounds for dismissal; however I believe he was only pointing out a possible legal technicality while actually going on later into the crux of the matter of the material of the actual evidence presented by the prosecution.

    I do not think personally that they will drop the charges but do believe and hope that they would see it fit to drop some of the counts that were clearly not proven at all. It would be interesting to see what the prosecution wil say on thursday.

  5. I think the defence team got a point for now, lets see how things will go on thursday. all we want is justice for mr taylor, and the people of sierra leon and liberia.

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