Prosecution’s Oral Response to Defense Submission of No Case To Answer

Thursday April 9, 2009

9:30am: Prosecution counsel Ms. Brenda Hollis made her oral response to the defense submission of no case to answer. On Monday April 6, 2009, Defense Counsel for Mr. Taylor, Mr. Morris Anyah made an oral submission of no case to answer, othewise known as Rule 98 submission or motion for judgement  of acquital, during which he argued that the prosecution had not proved its case on the varoius counts in the indictment to warrant a conviction. On Thursday April 9, 2009, Prosecution Counsel Ms. Brenda Hollis gave the prosecution response before the Trial Chamber II judges, with Justice Richard Lussick presiding.

In her response, Ms. Hollis sought to address specific issues that were raised by Mr. Anyah in the defense submission. In particular, she focussed on the following:

Crime Base Evidence: Ms. Hollis stated that defense counsel Mr. Anyah had asked the judges to strike out certain locations in the indictment because no evidence was led as to the crimes committed there or that some names of crime bases had been spelled incorrectly. Ms. Hollis responded that the defense submision in this regard must fail. Referencing the Trial Chamber II’s decision in the AFRC trial, she stated that the Chamber had ruled that it is inappropriate to strike out evidence based on incorrect spellings as dialects differ and many witnesses are not literate, thus leading to different spellings. The same rule, she said must be applied to the Rule 98 decision in the Taylor case.

On defense submission that prosecution had not led evidence on certain crime bases in the indictment, Ms. Hollis responded that the prosecution had led evidence on all crime bases mentioned in the indictment. Providing records of said evidence, Ms. Hollis made reference to several witness testimonies and prosecution exhibits that provided evidence on said crime bases. She pointed out the following records:

a. Buring: Goderich, Kent and Grafton–Confidential Exhibit 384, testimonies of TF1-334 and 585

b. Tumbo: Testimony of TF1-097

c. Wendedu: Testimonies of TF1-015 and 217

d. Bambua Fuadu: Testimony of TF1-192 and prosecution exhibit 202

e. Kayima: Prosecution exhibits 191, 192 and 193

Contradictions and Inconsistencies: Ms. Hollis stated that it is inapproriate at this point to strike out evidence because of inconsistencies or contradictions in witness testimony. The test, she said, is to know whether there is basis for conviction for one or more counts in the indictment. Referencing the Chambers judgement in the AFRC trial, she said that the Chamber should look if there is some evidence, not all evidence for a conviction.

Acts of Terror: Ms. Hollis referenced defense submission on the primary purpose of terror. In response, she noted that while there was a requirement to show the primary purpose for terror, it was not necessary to show the motivation for doing so. She said that to determine “primary Purpose”, one can look at evidence outside the jurisdiction of the court if such evidence is relevant, looking at the circumstances in which actions were taken. She referenced testimomonies of prosecution witnesses such as one during which villagers were forced look and hear civilians being raped and killed, and  another witness who was forced to carry a bag of human heads and later realizing that the heads of her children who were killed were among these that she carried in the bag. The circumstances here, she said, showed the primary purpose of terror. She also reference the rebel attacks on Freetown in January 1999 during which civilians were amputated and larcerated and said that the primary purpose was not chaos but terrorization. She further referenced a written article of 1991 that was tendered as prosecution exhibit which proved that there was terror in Sierra Leone and Liberia. Ms. Hollis also pointed out that in 1994, Charles Taylor adviced RUF leader Foday Sankoh to attack Sierra Rutile Mines and terrorize civilians, an attack which she said was carried out by the RUF.  She said that in 1996, just before the elections in Sierra Leone, Foday Sankoh called Taylor and informed him that he intended to make people fearful and that Taylor gave his approval to this. During these operations, she said that hands or civilians were amputated and that their chests were carved with the title “RUF.” Referencing the testimony of Witness TF1-562, she said that “Operation Spare No Sould” was meant to “make the area fearful.” She further referenced other witness testimonies that Johnny Paul Koroma gave orders that Kono was not for civilians, resulting in the execution of civilians and Bockarie’s orders to Issa Sesay that Kono should be made fearful. Ms. Hollis said that witnesses testified that the NPFL and the RUF used the same tactics to make civilians fearful such as hanging human heads on sticks and checkpoints. She insisted that evidence shows that Taylor and Bockarie planned the attacks from Kono to Freetown and that Taylor provided arms and ammunition for the operation.  She said that most of the evidence before the court shows that the crimes were committed after 1996 but that those before 1996 were also relevant.

On “Planning”, Ms. Hollis said that a Joint Criminal Enterprise (JCE) can occur before the crime is committed. She said individual criminal responsibility is not strictly a count in the indictment and so as along as there is evidence to support a conviction for JCE, the court should do so. She referenced several cases in the ICTY which support the view that the court should consider any, not all, evidence to support conviction on any count in the indictment.  She said case law supports the position that evidence to support the existence of a commom plan/purpose, supported by direct or circumstantial evidence should warrant a conviction.

Ms. Hollis questioned defense submission that if there was a common plan between Sankoh and Taylor to support each other in their respective quests to capture power in Sierra Leone and Liberia, there is no evidence to show that Sankoh rendered support to Taylor in Liberia. Ms. Hollis said that there is no requirement that the common plan has to be a two way strip, but that if there was, then there is evidence that Sankoh did render support to Taylor in Liberia. She referenced evidence that Sankoh, together with a few RUF fighters, fought alongside NPFL rebels in Liberia, that in 1993, Sankoh sent rebels to Liberia to help Taylor in his fight against ULIMO rebels and that in 1999, RUF rebels were sent to fight in Liberia and Guinea upon Taylor’s request.

Ms. Hollis pointed out that there was a common plan to “Forcibly Control the Population” in Sierra Leone and Liberia. She referenced witness testimonies of a meeting in Voinjama where Taylor agreed to send fighters to take over in Sierra Leone, and another meeting of Special Forces in Liberia that Sankoh will go and take over Sierra Leone. Ms. Hollis said that Taylor was bound with Sankoh to fight and they did.

Making enphasis on JCE, Ms. Hollis said that taking note of the Agreed Facts before the court, the AFRC and RUF formed a merger after the 1997 coup. She said this aim continued after the junta were ousted from power in 1998.  She said the motivation is not relevant but that the aim was to control Sierra Leone. Ms. Hollis said that Mr. Taylor sent messages recognizing the AFRC/RUF partnership and that diamonds mined were handed over to him. She said there is no evidence that Taylor later returned these diamonds to the RUF or AFRC fighters. According to Ms. Hollis, there is evidence that Taylor told the AFRC/RUF merger to capture Kono and to construct an airstrip where arms and ammunition would be offloaded. She said there is evidence to show the existence of a common plan and prupose. She further referenced Defense Exhibit 24 which was a “response of the Liberian Government to Allegations of Liberian Involvement in Sierra Leone.” In the said report, Ms. Hollis said there is reference to an AFRC/RUF alliance. Pointing out more JCE between the RUF and AFRC, Ms. Hollis said that there is evidence that Sankoh ordered the RUF to join the AFRC, that RUF and AFRC fought together at Hastings in the Western Area of Sierra Leone, and that a particular witness testified that he was sent by Taylor to Buedu, where he met RUF and AFRC fighters working together. She emphacized that there was a common chain, where in you had one AFRC commander and an RUF deputy, and vice versa. She further said that there is ample evidence that RUF rebels were part of the troops that entered Freetown in 1999 and that other RUF rebels freed from Pademba Road Prisons in Freetown joined the fighting forces upon their release. She referenced a witness’s testimony that Bockarie gave orders to fighters to enter Freetown, that Gullit, the leader of the troops that entered Freetown was in constant communication with Bockarie, that Bockarie ordered Superman, Rambo and others to move with reinforcements to Freetown but only stopped at Waterloo, and Issa Sesay’s broadcast on BBC that the rebels were at State House in Freetown. She said Liberians travelled to Sierra Leone and that materials were transfered from Liberia to the AFRC/RUF alliance on Taylor’s instructions.

Referencing Taylor’s continued involvement with the RUF, Ms. Hollis said that after the signing of the Lome Peace Accord in 1999, AFRC members met with Taylor in Liberia, during which Taylor informed them about how he had been helping both AFRC and RUF, that he had sent some AFRC soidiers who were in Liberia to join the RUF in Buedu, and that he encouraged them to be united with the RUF.

In response to a rhetorical question as to why would Taylor meddle with these groups at this time, Ms. Hollis explained that after the Lome Peace Accord, there was a general amnesty for all rebels and that since the RUF controled diamond areas at this point, there would have been no interuption from outside powers.

She explained that the accused person’s participation in the common design need not be the commission of the crime but his contribution to the common design, and that the contribution need not be significant but it is sufficient to to prove that he shared the intent to support the common purpose. She said there is no need to show participation in all forms, but in just one of the forms. She said Taylor gave support at the begining and throughout the existence of the alliance. She gave examples of Taylor giving US dollars to RUF rebels and supplying arms and ammunition to them. She said the accused provided bases and safe havens for the RUF, that the RUF rebels moved into Liberia when they were pressed by Sierra Leone Government troops.

Mens Rea for JCE: Mens rea means the guilty intent with which an accused commits a crime. Ms. Hollis said that this differs according to category and that the motive is immaterial. Talking about the basic form of JCE, Ms. Hollis said that there was an intention to commit the crime and to be part of the JCE. On the extended form of JCE, she said that the crimes committed, even if not intended, were forseable. Giving evidence of reasonable forseability, Ms. Hollis said that Sankoh used to brief Taylor on the activities of the RUF in Sierra Leone. She said that Taylor knew, listened to radio, read human rights reports and UN Resolutions which all mentioned the attrocities in Sierra Leone by the rebels, and he still continued to give support to them.  Ms. Hollis further explained that the accused’s advice on how to get materials and said materials later used to commit crimes could be regarded as mens rea.

On the actus reus (guilty actrion) of JCE, Ms. Hollis referenced an ICTY decision that said action could well be done by the personnel of the accused and the accused could be culpable. She said that Bockarie and Taylor spoke about “Operation No Living Thing” and that Taylor designed “Operation Free The Leader” with direct intent to make it fearful.

Instigating: Ms. Hollis said that the first element of this is prompting. She referenced witness testimony that there were secret meetings between Taylor and RUF leaders and that Taylor sent Jungle and Gen. Bar to tell RUF rebels to take Kono and construct an airstrip where arms and ammunition would be offloaded. On the face of it, she said there could be no instigation but there was prompting.

Ordering: Ms. Hollis referenced all the previous issues raised as evidence of ordering. She said that the accused was in a position of aithority and that as head of the NPFL, no one could question his authority since he made all the decisions. She said that Sankoh used to call Taylor “Chief” and that Taylor was Sankoh’s mentor. She said that Bockarie took orders from Taylor and that Jungle was Taylor’s eye in the RUF. According to Ms. Hollis, when Sankoh was arrested in Nigeria, Taylor sent a message to Bockarie that in Sankoh’s absence, all orders were to be taken from him (Taylor). She said that Taylor told Johnny Paul Koroma to call him if he had any problems with the RUF rebels and when Issa Sesay resisted arrest following the looting of the Iranian embassy in Freetown, Johnny Paul Koroma called Taylor and informed him. She said that Bockarie went to Taylor for frequent briefings as well.

Explaining the requirement for a person using authority to get others to commit an offence, she said that the accused need not be the immediate superior. She explained that existence of authority can be proved by circumstantial evidence, such as instructions from Taylor for the RUF rebels to hold Kono.

On whether the order substantially contributed to the crime, Ms. Hollis said that a causal link need not be established to say that the crime would not have been committed without the order.

Mode of Liability of Superior Authority: In explaining this, Ms. Hollis said that there should be a superior-subbordinate relationship, effective control to prevent or punish the commission of a crime and that it is sufficient to identify the perpetrator as belonging to a group controlled by the superior. She gave other examples as Taylor giving orders for the release of abducted UN Peacekeepers and orders to attack Guinea.

Ms. Hollis said that the accused failed to prevent or punish the commission of criminal conducts. She said that the existence of a concurrent authority does not relieve the accused of responsibility. She further said that after the Freetown attack in 1999, Taylor promoted Bockarie to 2 Stars General.

JCE/Aiding and Abetting: Ms. Hollis said that to consider this, the Chamber should only consider if there is evidence to support conviction with one of the forms of liability, not all of them.

Ms. Hollis then concluded her submission.

Asked by the presiding judge whether he had any response to the prosecution’s response to his submission, Defense counsel Mr. Morris Anyah said that he had no further response.

Presiding Judge, Ruchard Lussick informed all parties that a decision on the Motion for Judgement of Acquittal/Submission of No Case to Answer will be rendered on May 4th, 2009.

Court adjourned and will resume on May 4, 2009.


  1. May 4th should be interesting. I do believe some of the Indictments will be dismissed. Then the Star Witness Mr. Taylor will take the stand by summertime.

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