RUF TRIAL REPORT: AUGUSTINE GBAO DEFENSE CASE-IN-CHIEF JUNE 2 - JUNE 24, 2008

Jack Bouboushian Researcher & Trial Monitor, UC Berkeley War Crimes Studies Center

Special Court for Sierra Leone Trial Monitoring Program

12 August 2008

TABLE OF CONTENTS I. Executive Summary 1 (a) Introduction (b) Overview and Roadmap (c) Key Findings II. The Gbao Defense’s Opening Statement III. Witness Profiles (a) Insider Witnesses, Civilian and Non-Civilian (b) Crime Base and Anecdotal Witnesses (c) Expert Witnesses IV. Major Themes in Witness Testimony (a) The RUF’s Command Structure and Gbao’s Role in It (i) Overview of the RUF’s Command Structure (ii) Gbao’s Responsibility as Overall IDU Commander and the RUF’s

Internal Policing of War Crimes (iii) Gbao’s Responsibility as Overall Security Commander (b) The Puzzling Case of the Makeni Crime Base (c) Two Large-Scale War Crimes: The Massacre of the Sixty-Five Kamajors and

the UNAMSIL Incident (i) The Massacre of the Sixty-Five Kamajors (ii) The UNAMSIL Incident (d) The Prevalence and Patterns of RUF War Crimes (i) Examples of Incongruent Witness Testimony on War Crimes (ii) Patterns of Violence or Random Occurrences? (e) War Crimes Perpetrated by Non-RUF Actors (i) Liberian Gios as the Primary RUF-Connected Perpetrators of Human

Rights Abuses (ii) CDF/Kamajor, ECOMOG, and GOSL Attacks on Civilians (f) Gbao’s Personal Character and Relations with Other RUF Members (g) Gbao’s Individual Responsibility for War Crimes (h) The Role of RUF Ideology in the War (i) Non-Evidentiary Notes on Witness Testimony and Credibility V. Testimony Elicited on Cross-Examination (a) Sesay Defense’s Cross-Examination (b) Prosecution’s Cross-Examination VI. Witness Protection Issues VII. Legal and Procedural Issues (a) Potential Conflict of Interests between Gbao and Second Accused Morris

Kallon Related to the UNAMSIL Incident (b) Court Rejects Gbao Defense’s Motion to Stay Proceedings (c) Prosecution Objections to the Expert Testimony of General Hederstedt (d) Cammegh’s Insistence that Prosecution Must Have Evidentiary Grounds for

Cross-Examination Questions (e) Prosecution and Bench Objections to Cammegh’s Questions on Re-

Examination VIII. Court Management Issues: Punctuality, Stenographic Accuracy, and Administrative

Tensions IX. General Conclusions

i

LIST OF ABBREVIATIONS AFRC Armed Forces Revolutionary Council AFRC case, AFRC trial

The case against the three accused alleged to be members of the AFRC at the Special Court for Sierra Leone (Prosecutor v. Alex Tamba Brima, Brima Bazzy Kamara and Santigie Borbor Kanu).

CDF Civil Defence Forces CDF case, CDF trial

The case against the three senior members of the CDF at the Special Court for Sierra Leone (Prosecutor v. Sam Hinga Norman, Moinina Fofana and Allieu Kondewa).

Defense The defense teams for all three accused in the RUF trial. DDR camps Disarmament, Demobilization, and Reintegration camps set up by UNAMSIL

in the latter years of the war. ECOMOG The Economic Community of West African States Monitoring Group. GOSL Government of Sierra Leone G5 One of the RUF’s joint security units IDU Internal Defense Unit, one of the RUF’s joint security units IO Intelligence Office, one of the RUF’s joint security units Indictment Prosecutor v. Issa Sesay, Morris Kallon and Augustine Gbao (SCSL-04-15-T),

Amended Indictment, 2 August 2006. JCE Joint Criminal Enterprise JSBI Joint Security Board of Investigations MP Military Police, one of the RUF’s joint security units OSC Overall Security Commander OTP Office of the Prosecutor, Special Court for Sierra Leone RPE Rules of Procedure and Evidence, Special Court for Sierra Leone RUF Revolutionary United Front RUF case, RUF trial

The case against the three accused RUF members soon to be completed at the Special Court for Sierra Leone (Prosecutor v. Issa Sesay, Morris Kallon and Augustine Gbao).

SBU Small Boys Unit SCSL, the Court

Special Court for Sierra Leone

SLA Sierra Leonean Army UNAMSIL United Nations Mission in Sierra Leone WACs Women in Armed Conflict

ii

I. Executive Summary (a) Introduction This report offers a thematic overview and analysis of the evidentiary, legal, procedural, and court management issues that arose during the final session of the Revolutionary United Front (“RUF”) trial,1 during which the Defense for third accused Augustine Gbao presented its case-in-chief. Taken together with similar reports provided by the War Crimes Studies Center during the past four years,2 it hopes to constitute a helpful record to those who would like to compare each side’s recently-completed final briefs and arguments, as well as the Court’s forthcoming judgment, to the evidence presented. Researchers interested in issues ranging from the evidentiary to the procedural to the administrative will also find it useful. Although the Gbao Defense case was not lengthy, the evidence provided therein has important implications for the RUF trial as a whole (and indeed, the historical record of the war that the Court is creating). As a preliminary note, this report employs a somewhat unorthodox citation format via which well over 400 footnotes have been condensed to almost half that number, such that oftentimes, a single footnote provides references for the content of the entire foregoing paragraph. This decision is not only stylistic, but also practical, as researchers seeking direction towards passages of the transcripts relevant to particular subjects (e.g. a given witness’s background or the RUF’s basic command structure) will be better served by being given a list of references to several such passages, as opposed to individual references to minor components of broad subjects (e.g. the history of an individual security unit). Additionally, no substantial witness testimony was given in closed session, such that this report covers all of the Gbao Defense’s evidence. (b) Overview and Roadmap This report begins with a summary of the Gbao Defense team’s opening statement, which touched on many of the broader issues raised by the Defense throughout the trial, including rebukes of former Chief Prosecutor David Crane’s florid opening statement and the broad scope of the Indictment.3 It then provides brief profiles of all eight defense witnesses and the subjects covered extensively in the testimony of each. For brevity’s sake, it uses only acronyms and shorthand titles; further information is contained in the Witness Testimony section and the above List of Abbreviations. Section IV, the heart of the report, discusses the Gbao Defense case’s major themes approximately in order of significance, with an additional eye to logical progression (e.g. from overall command structure to Gbao’s own rank). Sub-section (a) covers the privileges and responsibilities Gbao held in his two posts, (b) considers the somewhat different picture of these

1 Prosecutor v. Issa Sesay, Morris Kallon and Augustine Gbao (SCSL-04-15-T). All transcripts available online at http://www.sc-sl.org/RUF-transcripts.html. 2 All other trial reports available online at http://socrates.berkeley.edu/~warcrime/SL.htm. Also, for more narrative-style summaries of individual witness testimony in the Gbao Defense case, see the Sierra Leone Court Monitoring Program’s weekly trial reports, available online at http://www.slcmp.org/drwebsite/reports/index.shtml. 3 See Prosecutor v Issa Sesay, Morris Kallon and Augustine Gbao, (SCSL-04-15-T), Amended Indictment, 2 August 2006, paragraphs 36 and 37 (hereafter, “Indictment”). Available online at http://www.sc-sl.org/Documents/RUF/SCSL-04-15-T-619.pdf.

1

responsibilities that emerged from testimony on Gbao’s time in Makeni, (c) summarizes testimony on two of the most significant war crimes that the Prosecution charges Gbao with in the Indictment, (d) and (e) broadly consider testimony on crimes committed during the war, (f) touches on Gbao’s character and relations with other RUF members, (g) on his individual responsibility for war crimes, (h) on the role of RUF ideology in the war, and (i) on some remaining credibility and consistency aspects. Each sub-section of Section IV includes some degree of analysis of the evidence’s coherence and consistency, much of which is summarized the key findings in Section I(c) below. Of course, there is a good deal of thematic overlap among these sections, and many of the divisions between them are somewhat arbitrary. For example, to understand how much command responsibility Gbao actually had during the war (covered in sub-section (a)), one must understand his possible roles in the UNAMSIL incident (covered in sub-section (d)). Moreover, it is crucial to emphasize that many statements made somewhat nonchalantly in this report (e.g. regarding the command hierarchy of the RUF) have actually been hotly contested over the course of the RUF trial. However, the report’s primary purpose is to relate the evidence presented by the Gbao Defense, not to analyze its full implications for the rest of the case or weigh it against the Prosecution’s case. In other words, to each sub-section under “Witness Testimony,” I would append the qualifier “according to Gbao’s defense.” Section V briefly runs down the issues that arose during cross-examination by the Prosecution and Sesay Defense. Particularly important issues regarding the witness’s evidence and credibility are often additionally discussed in Section IV or referred to in its notes. As the primary purpose of this report is relating the evidence presented during the Gbao Defense case, testimony elicited during Defense cross-examination is summarized primarily to enable readers interested in the Sesay and Kallon cases to locate relevant testimony. Counsel for Morris Kallon declined to cross-examine any witnesses and formally closed the Kallon Defense on June 6th.4

The report goes on to discuss important witness protection issues, legal and procedural issues, and court management issues that came up during the case. It ends with some reflections on the broader implications of the Gbao Defense for the RUF trial, the Special Court, and international criminal law broadly construed. (c) Key Findings The key findings of this report are as follows: • Gbao Defense presents the RUF as a somewhat organized, coherent insurgency. Outlining

the command structure and operational practices of the RUF, a crucial aspect of all the Defense cases, is a tortuous enterprise. It is certain that the RUF in theory and the RUF in practice were two very different organizations, with some titles being purely ceremonial, certain actors exercising dictatorial power in certain periods or locations, and a great deal of fluidity on both counts. Outside observers have tended to characterize the RUF as an internally chaotic insurgency,5 but few witnesses presented this sort of picture. Thus, one could not help but experience a bit of disbelief (or at least shock) when hearing insider witnesses nonchalantly lay out intricate schemes of command hierarchy and procedures for

4 Trial Transcript, 6 June 2008, 3. 5 See Lansana Gberie, A Dirty War in West Africa: The RUF and the Destruction of Sierra Leone (Indiana University Press, 2005).

2

internal monitoring, reporting, investigation, etc.6 If the RUF actually functioned as predictably as some insiders indicated, then it was more organized than many conventional armies. The Gbao Defense attempted to prove that its client occupied an insignificant position in this formal hierarchy, and also that the despotic authority exercised by Sam Bockarie rendered the hierarchy meaningless. The latter proposition seems to be more in accord with a view of the latter days of the war as chaotic and confused.

• Possible inconsistencies arise in Gbao Defense’s portrayal of its client’s command

responsibilities while stationed in Makeni. As noted especially in Sections IV(a) and (e), the Gbao Defense portrayed Gbao as a man who had very little practical power during the war, who tried and failed time and again to use this limited power to prevent abuses of civilians. However, a good deal of witness testimony indicates that Gbao did hold some significant sway while he was stationed in Makeni. This may be the central tension in the Defense case, and is covered at length in Section IV(b).7

• Gbao Defense’s distancing of its client from the UNAMSIL incident may implicate second

accused Morris Kallon, raising important procedural issues. The depiction of the UNAMSIL incident summarized in Section IV(c)(ii) was interrupted by a lengthy legal debate on the propriety of the witness’s testimony relative to the case of the second accused. This debate, covered in Section VII(a) was one of the most interesting components of the Gbao case in that the questions it raises are important not only for the RUF trial, but for the broader practice of trying multiple defendants at once.

• No coherent picture of the prevalence and patterns of RUF war crimes emerges from the

Gbao Defense case. Like Gbao’s command responsibility, this issue came up in a variety of contexts that complicate any attempt to construct a single clear depiction of what went on during the final five years of Sierra Leone’s civil war. Section IV(d) runs down the whirlwind of claims made by various witnesses. In truth, this confusing picture may more accurately reflect the reality of the war than any straightforward description of the extent of war crimes (or of the culpability for them). This issue also indicates the difficulty of trying individuals for their roles in creating a context in which impunity was the norm, as opposed to trying them only for committing or ordering the commission of crimes. Inculpating non-RUF actors for war crimes was also a key aspect of the Gbao Defense case and is covered in Section IV(h).

• Tensions between the Court and the Defense teams rise to a boiling point. During the final

four weeks of testimony, the atmosphere in Trial Chamber I, was far less than cordial. The procedural debates covered in Section VII give some sense of this, but those interested are advised to watch the trial itself.8 The level of hostility between the bench and the defense side of the bar at times overwhelmed the proceedings, with witnesses’ presence an awkward reminder of the fact that the purpose of the proceedings had fallen by the wayside. Although only an analysis of the Court’s final judgment on the RUF case can be authoritative, it is clear that the Defense teams are uncertain as to the Court’s impartiality in this case.

6 See infra Section IV(a). 7 It is also worth keeping this possible inconsistency in mind when reading the insider witnesses’ testimony on the latter stages of the war, during which time Gbao was largely in Makeni. For example, DAG-048 was actually stationed in Makeni during the same period Gbao was. See Testimony of DAG-048 (Trial Transcript, 3 June 2008, 21); Cross-examination (Prosecution) of DAG-048 (Trial Transcript, 3 June 2008, 141). 8 Videos of the RUF trial session are available online at http://www.sc-sl.org/video.html.

3

II. Opening Statement of Gbao Defense

John Cammegh, lead counsel for Augustine Gbao, delivered an incisive opening statement that made the most of his allocated thirty-minute limit in spite of covering some non-traditional grounds. Cammegh began by reminding the Court of its central place in the shaping of international criminal jurisprudence, focusing on the need for fairness and humanity in the face of competing political views and financial demands. He argued that, in spite of former Chief Prosecutor David Crane’s dramatics, the Prosecution’s lengthy case completely failed to prove that Gbao was a key player in the commission of atrocities by RUF members, such that Gbao’s own well-documented refusal to testify is justified. Specifically, none of the three bases on which Gbao is being tried – individual responsibility, command responsibility, and joint criminal enterprise – are supported by the evidence thus far offered. Moreover, at the time its indictment was made, the Prosecution lacked evidence supporting many of its allegations against Gbao; for example, its failure to call witnesses testifying as to Gbao’s command responsibility in Kono until the trial had been proceeding for eighteen months indicates such a lack.9 Cammegh implored the Court to rule against such approaches, to rule that “[i]t’s not acceptable to mold the case as it goes along… [or] to try a case on prejudice alone.”10 Cammegh then moved on to the more traditional subject matter of an opening statement: his own case, which alleges that there’s little credible evidence that Gbao ever fought at the front lines, killed anyone, or had the power to issue orders “to anyone to do anything” – or even the power to intervene in the commission of crimes against humanity by RUF members. Testifying primarily in English, Cammegh’s witnesses would show that Gbao was a bookish “local policeman” of modest means, who protected civilians from RUF excesses and passionately believed in the RUF’s quest to “free Sierra Leone from the corruption that had been strangling her for years.” In the posts he held (discussed at length below), Gbao was more or less a glorified reporter with a ceremonial title and lacked power to command other units. In fact, he tried his best to use his limited powers to ensure that RUF members did not abuse civilians and that those who did were punished. Nonetheless, he was abused by the RUF’s high command, who considered him a cowardly ideologue. Gbao was also in no position to influence the course of the May 2001 UNAMSIL incident.11

Cammegh made a point of emphasizing that the Gbao team would not be relying on alternative legal theories, “creative” defenses, claims of mistaken identity, or alibi, but rather would provide evidence demonstrating that Gbao simply did not commit the crimes alleged. Finally, characterizing his client as a stoic, intelligent, and sensitive man with the right to resent his presence in the Court, and contrasting Gbao’s behavior with the Prosecution’s abusive allegations and unjustifiable use of insider witnesses lacking clean hands or credibility,

9 At one point he Court cautioned Cammegh to stay within the realm of subject matter prescribed under RPE 84, to which Cammegh responded that it was imperative that he (a) address Crane’s dramatic allegations and (b) explain the “extraordinary decision” not to call Gbao. Ultimately, the Court allowed Cammegh to continue his opening statement as prepared. Gbao Defense Opening Statement (Trial Transcript, 2 June 2008, 7-11). See also RPE 84: “At the opening of his case, each party may make an opening statement confined to the evidence he intends to present in support of his case.” 10 On Crane’s opening and the weakness of the Prosecution’s case, see Gbao Defense Opening Statement (Trial Transcript, 2 June 2008, 2-5, 9-10). 11 On the basics of the Gbao case, see Gbao Defense Opening Statement (Trial Transcript, 2 June 2008, 11-14).

4

Cammegh expressed hope that the Court would meet its duties to fairness, reconciliation, and international criminal jurisprudence.12

Whether the below-discussed evidence lives up to the promises made in this opening is, of course, up for debate, but it does seem that Cammegh’s opening statement, like Crane’s, diverged from his actual evidence, though far less dramatically. Namely, saying that Gbao never had any power to issue orders at all overlooks some of the responsibilities Gbao enjoyed as an overall unit commander. Also, many witnesses gave examples of instances in which Gbao did intervene to prevent abuses of civilians. III. Witness Profiles and Subjects Discussed (a) Insider Witnesses, Civilian and Non-Civilian • DAG-110 was a teacher-in-training at Bunumbu College at the time he was captured by

Liberian RUF fighters, in 1991. He worked as a civilian contractor in the RUF-controlled Kailahun district from 1994 until 1999, never becoming a combatant. He met Gbao in Giema in 1993, and spent some time with him later in the war, though the two did not become close friends.13 The witness testified in English on June 2nd regarding the RUF’s trading practices, Gbao’s personal trading activities, abuses of civilians perpetrated by the Gios, the RUF’s command structure and Gbao’s role in it, Gbao’s being abused by other RUF members, Gbao’s cordial relations with civilians, mining activities in Kailahun district, the killing of the sixty-five Kamajors, the RUF’s use of child soldiers, and government air raids in Kailahun.

• DAG-048 was a farmer at the time he was captured by Liberians in the RUF, in 1991. The

RUF later appointed him town clerk, but he was eventually trained as a fighter and rose to third-in-command in the Military Police. He held this position until the end of the war, operating in various places, including Giema, Buedu, Pendembu, Segbwema, and Makeni. He knew Gbao well, but the two were never personal friends. The witness testified in English on June 3rd and 5th regarding the RUF’s command structure and Gbao’s place within it, Gbao’s command responsibilities in general, Gbao’s being abused by other RUF members, the RUF’s loss of control over its fighters following the AFRC coup, Sam Bockarie’s megalomania, war crimes perpetrated by non-RUF actors, and the killing of the sixty-five Kamajors.

• DAG-080 is a former teacher who was initially captured by Liberian RUF fighters and

appointed town commander of Mende-Kema in 1991. He became an intelligence officer (“IO”) in 1994, and was later appointed overall IO commander at the same time Gbao received his promotions, in 1996. He was close friends with Gbao during the early years of the war.14 The witness testified in English on June 6th and 9th regarding the RUF’s command structure and Gbao’s place within it, Gbao’s command responsibilities in general, Gbao’s being abused by other RUF members, Gbao’s cordial relations with civilians, abuses perpetrated by the Gios, and the RUF’s procedures for investigating and punishing suspected war criminals.

12 On the Prosecution’s shortcomings and Gbao’s rejection of the Court’s legitimacy, see Gbao Defense Opening Statement (Trial Transcript, 2 June 2008, 15-18). 13 Testimony of DAG-110 (Trial Transcript, 2 June 2008, 33-34, 37, 58-59, 64-66). 14 Testimony of DAG-080 (Trial Transcript, 6 June 2008, 6-7, 18-19, 13).

5

• DAG-101 was training as a teacher at Bunumbu in 1991 when she initially encountered Liberian fighters and Sierra Leonean Vanguards, including Augustine Gbao. She eventually rose to a high rank within the women’s sub-unit of the IDU. She was the Gbao defense team’s only female witness and was at some point married to a former RUF member currently employed by the Gbao defense team.15 The witness testified in English on June 9th and 10th regarding the IDU WACs, the RUF’s command structure and Gbao’s place within it, Gbao’s command responsibilities in general, Gbao’s cordial relations with civilians, the RUF’s loss of control over its fighters following the AFRC coup, and Gbao’s failed efforts to prevent war crimes.

(b) Crime Base and Anecdotal Witnesses • DAG-111 was Gbao’s live-in auto mechanic and driver during Gbao’s time in and around

Makeni. He was a civilian and never knew of the different units or operations of the RUF, though he also drove other commanders, including first accused Issa Sesay.16 The witness testified in Krio on June 17th and 19th regarding Gbao’s command responsibilities, the UNAMSIL incident, Gbao’s cordial relations with civilians, and civilian life in Makeni during Gbao’s time there.

• DAG-018 first met the war in 1992, while working as a rice trader in Kono. Thereafter, he

was based in Makeni and moved in and out of town in order to ensure his and his family’s safety (for example, he left upon the ECOMOG intervention and did not return until the signing of the Lomé Peace Accord).17 The witness testified in Krio on June 16th regarding life in Makeni during Gbao’s time there, including several anecdotes and commentary on non-RUF abuses of civilians.

• DAG-047 worked as a medical records statistician in the Government Hospital in Makeni

prior to the war. In 1998, at Teko Barracks, he became one of the first set of CDF trained by ECOMOG personnel. Following the CDF surrender at Teko, he briefly met Gbao for the only time and later joined the RUF in an unspecified role “far junior” to Gbao’s.18 The witness testified in English on June 16th and 17th regarding Gbao’s activities and responsibilities in Makeni, life in Makeni during Gbao’s time there, and the UNAMSIL incident.

(c) Expert Witnesses • General Johann Hederstedt (a.k.a. DAG-112) was a joint witness examined in chief by

counsel for Issa Sesay. He has held several relevant posts in the Swedish armed forces, UN international peacekeeping and negotiation efforts, and various military consultancies, and has also worked with and studied guerilla organizations in areas ranging from Kosovo to Lebanon to south-central Africa.19 The witness testified in English on June 23rd and 24th regarding “the precise categorization of the RUF in terms of… the distinction between conventional and guerilla forces and secondly, the issues concerning command and control which arise

15 Testimony of DAG-101 (Trial Transcript, 9 June 2008, 66, 74-80, 85); Cross-examination (Prosecution) of DAG-101 (Trial Transcript, 10 June 2008, 23-36); Re-examination of DAG 101 (Trial Transcript, 38). 16 Testimony of DAG-111 (Trial Transcript, 17 June 2008, 46-52; 19 June 2008, 8-9). 17 Testimony of DAG-018 (Trial Transcript, 16 June 2008, 3-9, 26-27). 18 Id. at 71-75, 79, 95-96; Testimony of DAG-047 (Trial Transcript, 17 June 2008, 2-3). 19 Testimony of Johann Hederstedt (Trial Transcript, 23 June 2008, 19-38).

6

thereof.”20 His evidence was much more relevant to the Sesay Defense, which constructs a broad, systematic picture of the RUF, than to the much narrower and more specific Gbao Defense. Accordingly, the Gbao Defense chose not to examine this witness.21 The portions of his testimony relevant to evidence presented by other Gbao Defense witnesses are noted in Section IV below; the procedural debates that arose during Hederstedt’s testimony are covered in Section VII.

IV. Major Themes in Witness Testimony

(a) The RUF’s Command Structure and Gbao’s Command Responsibility As the command responsibility of each defendant is one of the central pillars of the Indictment,22 the Gbao Defense took great care to elucidate the command structure of the RUF and then to demonstrate that, contrary to the allegations made in the Indictment, Gbao’s place in this hierarchy bequeathed him almost no control over combatants’ actions – that, as DAG-101 bluntly stated, he occupied an “insignificant” position in the RUF leadership.23 Rather, according to his attorneys, the one unit Gbao did have some control over (the Internal Defense Unit, or “IDU”) was tasked with investigating abuses of civilians and did so thoroughly under his command. The following section attempts to paint a comprehensible picture of the tangled web of units, responsibilities, and power relationships that emerged during testimony.24 A solid grasp of the RUF’s command structure is of course crucial to understanding if or how Gbao was involved in the more specific incidents (e.g. the UNAMSIL incident) discussed below. (i) Overview of the RUF’s Command StructureThis section’s findings are summarized in the following diagram: At the apex of the RUF was the “leader” (a.k.a. “the leadership” or “the commander-in-chief”): Foday Sankoh prior to 1996, Sam Bockarie (alias “Mosquito”) during the period covered by Gbao’s case. “High command” included the leader, the battlefield (or “battle front”) commander, the battle group commander, and the military advisor. Aside from Bockarie, individuals such as Mohammed Tarawallie, one Kallon (but not RUF accused Morris Kallon), and one Mansaray were once a part of this group. Beneath high command were the area (a.k.a. “district” or “brigade”) commanders, who controlled all operations taking place within a given geographic area. The RUF also appointed “town commanders,” surrogate-chief liaisons who settled minor disputes between civilians (or between civilians and fighters).25 As a general

20 Id. at 5-6, 41-44. 21 Testimony of Johann Hederstedt (Trial Transcript, 24 June 2008, 29-30); Cross-examination (Prosecution) of Johann Hederstedt (Trial Transcript, 118). 22 See, e.g., Indictment, paragraphs 30-33. 23 Testimony of DAG-101 (Trial Transcript, 9 June 2008, 114-115). 24 Nonetheless, at times, the Court became confused due more to its misinterpretations of what a given witness had said than to any fault of the Gbao team. For example, see Testimony of DAG-080 (Trial Transcript, 6 June 2008, 64-67). At this point, as this report indicates, the basic command structure of the RUF had already been elucidated. Nonetheless, Judge Boutet conflated the terms “area/district commander” and “area/district IDU commander,” which necessitated a reiteration of the relationship between general and unit command. 25 Testimony of DAG-080 (Trial Transcript, 6 June 2008, 20-21); Testimony of DAG-101 (Trial Transcript, 9 June 2008, 114-117). It is important to note that some witnesses used the term “high command” to refer to the leader as well; which parties the witness meant to refer to was usually clear given the context. However, this report certainly glosses over the fact that at trial, it was often very difficult to determine which positions ranked where in the RUF

7

matter, many witnesses testified to the effect that Bockarie ruled the RUF with an iron fist, such that the powers of many other so-called “commanders,” such as Gbao, were severely diminished in practice.26 The RUF also had various “units” that operated across area boundaries. Many such units were supportive or logistical in function, such as the S4 (quartermaster), G1 (combat training), G3 (secretary), and G4 (armory). Four “joint” or “security” units were tasked with monitoring relations among fighters and, most importantly, between fighters and civilians. The G5, once commanded by Prince Taylor, was responsible for managing civilian affairs, which entailed, e.g., issuing travel passes and organizing citizens for collective labor. The Intelligence Office (“IO”), once commanded by DAG-080, reported on fighters via placing undercover agents within the rank-and-file. The Military Police (“MP”), once commanded by Mohamed Kaisamba (alias “Kaisuku”), arrested fighters suspected of violating the RUF’s code of conduct and also helped investigate minor crimes. Most importantly, the Internal Defense Unit (“IDU”, formerly known as the G2), once commanded by Augustine Gbao, was tasked with investigating alleged abuses of civilians by fighters. Each unit had its own hierarchy, with an “overall unit commander” at the apex. Agents in a given unit did not report to or take orders from commanders of other units (especially not IO agents, whose identities were secret to most).27 Many units had female members known as “WACs” (i.e. women in armed conflict). For example, DAG-101 was a member of the IDU WACs. Though the exact interrelationship between the general IDU and the IDU WACs was never made crystal clear, it seems that IDU WACs agents did the same work as their male counterparts, but reported to a different unit commander.28

However, although a unit commander could issue orders to agents in his unit, a given agent only had to report his findings to the area commander of the area in which he was operating. Crucially, though unit commanders would sometimes be “copied” on these reports, even they were obligated to follow orders given by the area commander in whose area they operated, such that the unit commanders actually ranked below area commanders in terms of command responsibility. For example, if an area commander ordered a unit commander to stop an investigation into one fighter’s alleged rape of a civilian, the unit commander had to do so. The rationale behind this was that fighters’ activities were considered frontline matters.29

hierarchy. See also Cross-examination (Prosecution) of DAG-048 (Trial Transcript, 3 June 2008, 132; 9 June 2008, 30) on interchangeability of certain terms. 26 On Bockarie’s megalomania, micromanagement, and brutality, see Testimony of DAG-110 (Trial Transcript, 2 June 38-39, 44-45); Testimony of DAG-048 (Trial Transcript, 3 June 2008, 45, 64-66). Expert witness General Hederstedt also stated that Bockarie exercised de facto control over all battle operations. Testimony of Johann Hederstedt (Trial Transcript, 23 June 2008, 115-16). 27 On support units, see Testimony of DAG-110 (Trial Transcript, 2 June 2008, 67-68, 103-105). On the G5, see Testimony of DAG-110 (Trial Transcript, 2 June 2008, 89); Testimony of DAG-048 (Trial Transcript, 3 June 2008, 92); Cross-examination (Sesay Defense) of DAG-048 (Trial Transcript, 3 June 2008, 103). On the IO, see Testimony of DAG-048 (Trial Transcript, 3 June 2008, 30-31); Testimony of DAG-080 (Trial Transcript, 6 June 2008, 39-43). On the MP, see Testimony of DAG-110 (Trial Transcript, 2 June 2008, 74); Testimony of DAG-048 (Trial Transcript, 3 June 2008, 22-23, 36); Cross-examination (Sesay Defense) of DAG-048 (Trial Transcript, 3 June 2008, 106). On the IDU and its command structure, see Testimony of DAG-080 (Trial Transcript, 6 June 2008, 22-25, 45-48); Testimony of DAG-101 (Trial Transcript, 9 June 2008, 87-97). 28 Testimony of DAG-101 (Trial Transcript, 9 June 2008, 83-85, 87-97, 99-102); Cross-examination (Sesay Defense) of DAG-101 (Trial Transcript, 9 June 2008, 132). 29 On unit commanders being subordinate to area commanders, see Testimony of DAG-080 (Trial Transcript, 6 June 2008, 51-53); on DAG-110’s contrary statement, see Testimony of DAG-110 (Trial Transcript, 2 June 2008, 79).

8

(ii) Gbao’s Responsibility as Overall IDU Commander and the RUF’s Internal Policing of War Crimes After stints as an ideology instructor, secretary to the leader, and border patrol commander, Gbao was appointed overall IDU commander in 1996 in Zagoda and retained this position until 2001. His defense team took great care to demonstrate that the the relationship hierarchy between unit commanders and area commanders greatly diminished any power Gbao had in practice as overall IDU commander. Effectively, Gbao is alleged by the Defense only to have had command and control over IDUs. It also attempted to prove that Gbao was never a member of the MP or the G5 and could only give orders to IDU agents. However, it should be noted that DAG-110 stated that, in his capacity as overall IDU commander, Gbao was only answerable to Bockarie.30

Strongly committed to the RUF’s spoken pro-civilian ideology, as overall IDU commander, Gbao was known for thoroughly and fairly investigating any war crimes allegedly committed by RUF members. Investigations of war crimes committed by RUF members proceeded as follows. For the purposes of investigation and punishment, there was a division between “major” or “serious” crimes (such as rape, murder, forced labor, arson etc.) and “minor” ones (such as insulting, minor harassment, etc.). Minor crimes would usually be punished without any formal investigation and via means such as press-ups or a few lashes. Major crimes would be punished with either hard labor, being sent to the front lines, or death, depending on the severity of the offense. For particularly serious offenses, investigations were carried out by a “people’s court” composed of a Bockarie-appointed chairman and seven members whom the chairperson would appoint. The Joint Security Board of Investigations (“JSBI,” discussed below) also played a role in these investigations, but how its role was different from that of the people’s court was not clear. In other cases, following investigations, units like the IDU would recommend punishments to the relevant area commander, who had the final say in the matter. Investigations primarily revolved around written statements prepared by security unit agents (including statements taken from the accused) – which were merely copied to unit commanders like Gbao.31 Although one might conclude that, given his command responsibility in the IDU, Gbao was at least in part responsible for any offenses that went unpunished or continued, his efforts were apparently stymied and his person abused time and time again by Bockarie and other commanders, who did not share Gbao’s desire to mete out justice to law-breaking fighters and who often violated the RUF code of conduct themselves. In contrast, Gbao repeatedly asserted to fighters that crimes against civilians were wrong not only because they violated the RUF code of conduct, but because they violated the Geneva Convention.32 Additionally, witnesses gave the impression that by 1996, and even more so following the RUF-AFRC merger, the RUF was

Expert witness General Hederstedt supported this characterization, stating that area commanders were “very strong” and “kinds of warlords.” Testimony of Johann Hederstedt (Trial Transcript, 23 June 2008, 110). 30 On the IDU and its command structure, see Testimony of DAG-080 (Trial Transcript, 6 June 2008, 22-25, 45-48); Testimony of DAG-048 (Trial Transcript, 3 June 2008, 26, 32). On Gbao’s unit membership, see Testimony of DAG-048 (Trial Transcript,3 June 2008, 26, 29); Testimony of DAG-080 (Trial Transcript, 6 June 2008, 13-14, 80); Testimony of DAG-101 (Trial Transcript, 9 June 2008, 105, 117); Testimony of DAG-047 (Trial Transcript, 16 June 2008, 80); Testimony of DAG-111 (Trial Transcript, 17 June 2008, 51-52). 31 On RUF procedures for investigating and punishing renegade combatants, see Testimony of DAG-080 (Trial Transcript, 6 June 2008 54-57, 59-63, 67-70, 72-79); Testimony of DAG-110 (Trial Transcript, 2 June 2008, 70-74). 32 On Gbao’s efforts to prevent abuses and the consequential abuse he received, see Testimony of DAG-080 (Trial Transcript, 6 June 2008, 26-32, 85-89); Testimony of DAG-101 (Trial Transcript, 9 June 2008, 75-76); Cross-examination (Prosecution) of DAG-101 (Trial Transcript, 10 June 2008, 37); Testimony of DAG-047 (Trial Transcript, 17 June 2008, 14); and infra Section IV(f).

9

largely in disarray, with officers holding little practical control over their subordinates, such that “renegade soldiers” or “unruly commandos” were able to abuse civilians frequently without fear of investigation or discipline,33 despite the dedicated efforts of security commanders like Gbao. By 1999, having decided that the RUF would have to transform into a non-violent political party, Bockarie dispatched Gbao to Makeni to investigate and prevent abuses of civilians being carried out by other senior commanders like Superman and Kailondo. Gbao promptly restored order. It should be noted that this anecdote stands in contradiction to the picture otherwise related here of Gbao as a relatively powerless, beleaguered man throughout the war.34

(iii) Gbao’s Responsibility as Overall Security Commander The joint units operated independently, but were in some sense beneath an “overall security commander” (“OSC”, a.k.a. “joint security commander”). Because of his seniority, Gbao was appointed OSC at the same time he was appointed overall IDU commander, in 1996; he retained this position until 2001. Unlike in his capacity as overall IDU commander, discussed above, Gbao, as OSC, was unable to issue orders to any unit members, although he could make “requests” of them. In fact, he was never even assigned a radio. DAG-048 once stated that other security unit commanders were “subordinate” to Gbao in his capacity as OSC, but twice emphasized the fact that the OSC’s duty “to oversee the administrative setup of the security and to make sure that all the security offices [were] functioning well.” This entailed the right to send “warnings” to any unit or area commanders failing to take sufficient action on one of Bockarie’s recommendations on an internal security matter (the Gbao team sought to emphasize that the actual recommendations were made by Bockarie). Anecdotal witness evidence also confirmed that, as OSC, Gbao simply functioned as an administrative supervisor, monitoring progress and ensuring reports were received on time.35

Actions taken by security personnel and the results of their investigations were reported to area commanders or Bockarie; Gbao’s defense attempted to show that Gbao was merely copied on these reports. However, on cross-examination, the Prosecution provided one such report (of a criminal investigation) that was made directly to Gbao by the MP, with a request for recommendations. The witness stated that he was unable to confirm the veracity of the report.36

Additionally, Gbao, as OSC, chaired the “joint security board of investigations” (“JSBI”) to investigate serious crimes and make recommendations of punishment or further investigation. All four security units (and at times Bockarie’s bodyguards, a.k.a. the “Black Guards”) sat on the board. According to DAG-048, who sat on the JSBI at times, Gbao apparently did not actually “sit” on the board, but was purely an administrator who “advised” it, ensured that it did not

33 On the decline of RUF commanders’ control over fighters, see Testimony of DAG-048 (Trial Transcript, 3 June 2008, 18); Testimony of DAG-080 (Trial Transcript, 6 June 2008, 28-29); Testimony of DAG-110 (Trial Transcript, 2 June 2008, 69-70); Cross-examination (Sesay Defense) of DAG-101 (Trial Transcript, 9 June 2008, 150-51). 34 See infra Section IV(b). 35 On the general abilities and responsibilities of the overall security commander and Gbao’s appointment to the post, see Testimony of DAG-080 (Trial Transcript, 6 June 2008, 13-14, 21); Testimony of DAG-048 (Trial Transcript, 3 June 2008, 29, 33, 40-42, 51-53, 62-63); Cross-examination (Prosecution) of DAG-048 (Trial Transcript, 3 June 2008, 127-128); Cross-examination (Sesay Defense) of DAG-048 (Trial Transcript, 5 June 2008, 5-8); Testimony of DAG-101 (Trial Transcript, 9 June 2008, 103-105, 110); Cross-examination (Prosecution) of DAG-101 (Trial Transcript, 9 June 2008, 162; 10 June 2008, 2-7); Testimony of DAG-047 (Trial Transcript, 17 June 2008, 3-5). On Gbao’s lack of a radio, see Testimony of DAG-048 (Trial Transcript, 3 June 2008, 38). 36 Cross-examination (Prosecution) of DAG-048 (Trial Transcript, 3 June 2008, 137).

10

violate normal procedure, and passed on its recommendations to Bockarie. He could not actually convene the board or alter its recommendations in any way.37

However, the Prosecution at one point submitted a death warrant for an RUF fighter who had been found guilty of some offense written and signed by Gbao in 2000. Gbao’s defense team objected to its admission, saying that it only indicated that Gbao wrote down Bockarie’s recommendation, not that Gbao himself had the power to make such a recommendation, and that given that the witness himself was not a member of the relevant board, Gbao’s agency relative to the warrant could not be fairly determined. Nonetheless, the Court allowed the submission to stand, as it did not violate RPE 89(c).38

(b) The Puzzling Case of the Makeni Crime Base As discussed above, the Gbao Defense presented their client as a well-intentioned man who, all formalities aside, simply lacked the authority to do very much about the atrocities being committed by people associated with his organization. However, a different picture emerged from witnesses’ testimony regarding the few years Gbao spent in and around Makeni during the late 1990s and early 2000s. Though Gbao was apparently powerless to stop the UNAMSIL incident,39 a good deal of testimony indicated that he held – and exercised – a considerable amount of power in the Makeni area during this period (though probably not as much as the Indictment alleges).40

Three different conclusions might be drawn from this tension. First, the Gbao Defense may be attempting to depict Gbao as someone who rarely had the ability to exercise his limited power, but who did so for good purposes when he was able. Given the totality of the Defense evidence, it seems that Gbao had a significant amount of power relative to low-level securities and civilians, but very little with respect to his colleagues and none whatsoever with respect to senior officers. The only witnesses who gave testimony indicating that Gbao had substantial power to issue orders were civilians (mostly from Makeni). According to DAG-018, the people of Makeni had been promised peace for quite some time, largely in response to abuses perpetrated by or under the command of Denis Mingo (a.k.a. “Superman”).41 These promises were empty until Gbao showed up, at which time abuses within Makeni town almost came to a halt, although they occurred more frequently in the surrounding rural areas, which Gbao was not able to control.42 A good deal of DAG-018’s testimony was devoted to an incident in which two RUF members, in the absence of any commanders, harassed him and forced him to carry a massive bag of rice on pain of serious injury – until they were discovered, ordered to stop their abuse, and punished by a

37 See Testimony of DAG-048 (Trial Transcript, 3 June 2008, 51-54, 58-61); Cross-examination (Prosecution) of DAG-048 (Trial Transcript, 141); Testimony of DAG-080 (Trial Transcript, 6 June 2008, 71-72, 80-83); Testimony of DAG-101 (Trial Transcript, 9 June 2008, 106-110). 38 See Cross-examination (Prosecution) of DAG-048 (Trial Transcript, 3 June 2008, 142-151); Cross-examination (Prosecution) of DAG-080 (Trial Transcript, 9 June 2008, 42-44). See also Special Court for Sierra Leone, Rules of Procedure and Evidence, available on-line at http://www.sc-sl.org/documents.html. 39 See infra Section IV(c)(ii). 40 See Indictment, paragraph 33. 41 Testimony of DAG-018 (Trial Transcript, 16 June 2008, 9-10). 42 Id. at 19-23; Testimony of DAG-047 (Trial Transcript, 16 June 2008, 95). DAG-047 also testified that life and civilian-combatant relations in Makeni proper improved when Gbao was there, as he tried to establish some degree of control and accountability among the RUF members stationed there. Testimony of DAG-047 (Trial Transcript, 16 June 2008, 82-83, 91-92). See id. at 84-87 for some relevant anecdotes.

11

man who DAG-018 later learned was Gbao.43 Similarly, DAG-111 related an instance in which his auto repair tools were confiscated by some RUF securities guarding a checkpoint near Kailahun, and Gbao, at the time unknown to the witness, promptly set things right.44 Notably, this same witness also testified, convincingly, that Gbao appeared to have “no authority” over other commanders in Makeni, such as Kailondo or the second accused, Morris Kallon.45

Secondly, however, the Gbao Defense may simply be trying to have its cake and eat it too, by claiming on one hand that Gbao was a powerless pseudo-commander and on the other that he was the white knight of the RUF, stamping out human rights abuses wherever he was aware of them. For example, DAG-018 stated that, at some point during his time in Makeni, Gbao disarmed all of the child soldiers under Superman’s command, after which time the witness never saw any more child soldiers in Makeni.46 Granted, DAG-018 heard this version of how Superman’s soldiers were disarmed secondhand (from a local elder, Pa Koroma), and never even knew Gbao’s position in the RUF himself, but the Gbao team’s decision to emphasize this anecdote is a bit puzzling regardless. How Gbao, the beleaguered ideologue, had the power to step in and stop this commander-perpetrated human rights abuse, but lacked the power to do almost anything else throughout the war, is a good question, given the evidence.47

A final possible explanation for this discrepancy is that Gbao was granted power by Bockarie only once the latter recognized that the RUF would only be able to attain its goals via transforming into a political party. Abandoning lawless violence could have been seen as a key step in this process. At least one witness’s testimony supports this proposition.48 The Prosecution’s recognition of this tension, and its likely desire to exploit it in the context of its forthcoming final brief, was on vivid display during cross-examination of DAG-080. The witness affirmed, point blank, that “when Augustine Gbao went to Makeni in 1999, he exercised his authority as overall security commander and ensured law and order… by ensuring that the security units performed their duties well.”49 And yet, immediately thereafter, the witness resumed insisting that Gbao had no power to do anything but basic administrative oversight work.50 When provided with a document that seemed to call this proposition into question, at least to some degree, the witness floundered a bit, “denying” it and then claiming he could not comment, despite his status as the former overall IO commander.51 If the Gbao Defense’s intention was to question the veracity of this document, it did not do so very well, with Cammegh’s only interjection being, literally, a mention of an unnoticed tick.52 On re-examination, Cammegh did ask the witness whether he had ever seen this document before and received a negative answer, so it may well be that this particular issue was dealt with during closing submissions.53

43 Testimony of DAG-018 (Trial Transcript, 16 June 2008, 11-18). 44 Testimony of DAG-111 (Trial Transcript, 17 June 2008, 49-52). 45 Id. at 86. 46 Testimony of DAG-018 (Trial Transcript, 16 June 2008, 23-26). 47 It should be noted that DAG-047 indicated that Superman might have left Makeni shortly before Gbao arrived, but this was not fully resolved during testimony. See Testimony of DAG-047 (Trial Transcript, 16 June 2008, 88-90). 48 Testimony of DAG-080 (Trial Transcript, 6 June 2008, 84-86). 49 Cross-examination (Prosecution) of DAG-080 (Trial Transcript, 9 June 2008, 28). 50 Id. at 28-34. 51 Id. at 34. 52 Id. at 31-32. 53 See Re-examination of DAG-080 (Trial Transcript, 9 June 2008, 62).

12

(c) Two Large-Scale War Crimes: The Massacre of the Sixty-Five Kamajors and the UNAMSIL Incident

The Gbao Defense made every effort to disconnect its client, on individual and command responsibility bases, from two of the most infamous large-scale crimes perpetrated during the war: (i) the RUF’s massacre of sixty-five suspected Kamajors, members of traditional hunting societies that became attached to the CDF and (ii) its taking of several hundred UNAMSIL personnel hostage in May 2000.54 In short, the Gbao Defense created a record of each event in which Gbao’s only role was that of a failed, frustrated conciliator, in line with the general Defense portrayal discussed in this report. No contrary testimony was adduced under cross-examination of any of the relevant witnesses. The Gbao defense team had originally planned to call some additional witnesses to testify on the killing of the Kamajors, but, in the end, did not do so.55

(i) The Massacre of the Sixty-Five KamajorsOne of the most infamous incidents to take place in Kailahun after the 1997 AFRC coup was the killing of sixty-five suspected Kamajors, including many civilians. This murder of local people, including a town chief, caused great disorder and frustration in Kailahun. According to DAG-048, RUF investigations and imprisonments of suspected Kamajors began only because Kamajor and ECOMOG fighters had violated the 1996 truce by abusing suspected former RUF members, many of whom were civilians. Prior to the incident in question, Gbao had investigated suspected Kamajors before and had released a group of forty-five such men after finding the evidence against them lacking. Before they were killed, the sixty-five had been placed on a kind of supervised release by Gbao’s JSBI, pending further investigation of their alleged Kamajor status. However, Mosquito overruled Gbao’s advice to wait for the investigation to finish and, after killing three of the Kamajors personally, had the remainder killed by his bodyguards and the MP (over which Gbao had no control). This particular massacre may have been undertaken in retaliation for an attack on Bockarie’s bodyguards, as opposed to just general Kamajor activities in Kenema.56 (ii) The UNAMSIL IncidentThe significance of the UNAMSIL incident, during which scores of UN peacekeepers were taken hostage at the Makump Disarmament, Demobilization, and Reintegration (“DDR”) camp cannot be overstated: it comprises three counts of the Indictment, and catalyzed major changes in the UN Mission, possibly even motivating the establishment of the Special Court.57 The Gbao team’s version of this incident was presented by DAG-111, who may have seen even more of what happened than Gbao himself and whose testimony is largely summarized here. Gbao allegedly had positive feelings about the disarmament process and visited DDR camps about twice per week to meet with UNAMSIL commanders, with whom he had cordial and productive relations. In late April, Ishmael Kamara informed Gbao of the event that ultimately led to the abduction of the peacekeepers: several RUF members had been disarmed at Makump, apparently without adequate warning. Although Gbao made measured efforts to investigate the

54 Three Counts of the Indictment are based on the latter incident. See Indictment, Counts 15-18. 55 Trial Transcript, 10 June 2008, 45, 47. 56 See Testimony of DAG-110 (Trial Transcript, 2 June 2008, 79, 86, 97-105); Testimony of DAG-048 (Trial Transcript, 3 June 2008, 76-83). Also, compare Testimony of DAG-110 (Trial Transcript, 2 June 2008, 102) with Testimony of DAG-048 (Trial Transcript, 3 June 2008, 84-85) (on Bockarie’s reasons for killing the Kamajors). 57 Indictment, Counts 15-18. See also Gberie, 165-69.

13

incident, talk it through with UNAMSIL staff, and mollify the frustration of other RUF commanders, DAG-111 later witnessed several RUF fighters, largely under Kailondo’s command, disarming peacekeepers on one side of the Makump camp while Gbao, ignorant to what was happening, negotiated with UNAMSIL on the other side. Once Gbao realized what was going on, he begged Kailondo and other senior commanders present (including Morris Kallon) to stay calm, avoid causing problems, and allow him to finish negotiating with the UN staff. Eventually, a total of fifty RUF members arrived on the scene, and Gbao, worried and afraid (especially due to Kallon’s shooting in the air), retreated to Makeni and informed civilians that other commanders had been causing problems at Makump. The next day, Gbao returned to his normal routine, and, unbeknownst to Gbao, the witness left for Kono with first accused Issa Sesay and a truck full of Zambian UNAMSIL members.58 DAG-047 somewhat corroborated this story, stating that, shortly after the incident, he overheard Gbao, in conversation with other officers, voicing the opinion that the peacekeepers should not have been abducted, especially considering that disarmament was in progress and that outcome of the Lomé Peace Accord was not yet clear.59

(d) The Prevalence and Patterns of RUF War Crimes An entire report could be written on the similarities and differences among the Gbao Defense witnesses’ experiences, views, and portrayals of the prevalence and patterns of war crimes committed by the RUF. To develop a complete picture, one must take into consideration variations across time and geographic location, which requires very close readings and comparisons of the transcripts. Such an investigation is beyond the scope of this section, which merely demonstrates the complexities of and possible inconsistencies within the evidence via a few examples. It goes without saying that the incongruities discussed below may raise some credibility issues for the Gbao Defense. Why a given witness testified that offenses were quite common as opposed to testifying the opposite may depend on a host of factors: the witness’s position in relation to the RUF, the witness’s gender, differences across time and space during the war, and variations in the manner that questions were asked or understood. In any case, of course, no simple picture of the extent of war crimes during the war has emerged from the RUF trial. (i) Examples of Incongruent Witness Testimony on War Crimes • Child soldiers, a.k.a. SBUs: DAG-110 testified that the only child soldiers he saw during the

war were Bockarie’s domestic helpers.60 DAG-080 stated that Bockarie was the sole RUF member to use child soldiers at all.61 In direct contrast, DAG-101 testified that she only saw child bodyguards with combatants, but never with commanders.62 DAG-047 stated that he saw child combatants in Makeni during the AFRC-RUF retreat, but never saw them after Gbao’s arrival;63 DAG-111 also never saw them (and first became involved in the war during

58 Testimony of DAG-111 (Trial Transcript, 17 June 2008, 58-64, 66-78, 86-100, 133-140; 19 June 2008, 2-10) Cross-examination (Prosecution) of DAG-111 (Trial Transcript, 17 June 2008, 37-38). See also Section VII(a) below on the possible conflict of interest with Kallon Defense that arose surrounding this testimony. 59 Testimony of DAG-047 (Trial Transcript, 17 June 2008, 5-8). 60 Testimony of DAG-110 (Trial Transcript, 2 June 2008, 106-107). 61 Cross-examination (Prosecution) of DAG-080 (Trial Transcript, 9 June 2008, 40-41). 62 Cross-examination (Prosecution) of DAG-101 (Trial Transcript, 10 June 2008, 10-11). 63 Testimony of DAG-047 (Trial Transcript, 17 June 2008, 10).

14

Gbao’s time in Makeni).64 In contrast, DAG-101 stated that “most” RUF combatants had children with them as “morale booster[s],” bodyguards, and gun carriers.65 She also stated that she and Gbao were both against the use of child soldiers.66

• Forced marriage: DAG-080, an insider, claimed to have never heard of any allegations of

forced marriage,67 unlike DAG-111, a civilian.68 In direct contrast, DAG-101 spoke in detail of Gbao’s investigations of allegations of forced marriage.69

• Forced labor: DAG-110 characterized community farms as joint civilian-combatant efforts

that supported both the war effort and the civilian population.70 Similarly, DAG-048 stated that there had never been any forced labor on farms or the Kailahun airfield, only labor organized by the G5 – though it should be noted that when asked who the produce was intended for, the witness first said combatants, only adding civilians after being asked again.71 In direct contrast, DAG-080 stated that in 1996, some “renegade” RUF fighters forced civilians to work on their farms and were subsequently punished.72 DAG-111 also claimed to have “heard about” forced labor.73

• Abuses of civilians in general: Like some other witnesses, DAG-048 stated that, after the

Liberians left, there was still some harassment and looting perpetrated by RUF members, but no killing or raping.74 In direct contrast, when being asked whether “there was a tendency among combatants to commit crime [sic] against civilians,” DAG-101 responded with “yes, of course” and “all throughout [the war].”75

(ii) Patterns of Violence or Random Occurrences? Aside from some of the above-noted tensions regarding specific issues, witnesses also seemed to disagree on whether war crimes were regular occurrences or random and isolated ones. DAG-101 was especially adamant that the commission of war crimes was a noticeable “tendency” among combatants; regarding this view, it may be worth noting that she was the Gbao Defense’s only female witness. And yet other witnesses referred to the soldiers that committed even comparatively minor offenses, such as looting, as “renegades” and “unruly commandos.”76 As noted above, many wavered on whether any crimes of note occurred at all after the Gio withdrawal. Though this picture is a bit confusing, it likely more accurately reflects the reality of the war than would any straightforward description of the extent of war crimes (or of the culpability for them). This issue also indicates the difficulty of trying individual defendants for

64 Cross-examination (Prosecution) of DAG-111 (Trial Transcript, 19 June 2008, 40-42). 65 Testimony of DAG-101 (Trial Transcript, 9 June 2008, 122-23). 66 Id. at 121-124. 67 Cross-examination (Prosecution) of DAG-080 (Trial Transcript, 9 June 2008, 37-38). 68 Cross-examination (Sesay Defense) of DAG-111 (Trial Transcript, 19 June 2008, 20-21). 69 Testimony of DAG-101 (Trial Transcript, 9 June 2008, 123-24). 70 Testimony of DAG-110 (Trial Transcript, 2 June 2008, 89-93). 71 Testimony of DAG-048 (Trial Transcript, 3 June 2008, 92); Cross-examination (Sesay Defense) of DAG-048 (Trial Transcript, 3 June 2008, 115, 118-19). 72 Cross-examination (Prosecution) of DAG-080 (Trial Transcript, 9 June 2008, 36). 73 Cross-examination (Prosecution) of DAG-111 (Trial Transcript, 19 June 2008, 20-21). 74 Cross-examination (Prosecution) of DAG-048 (Trial Transcript, 5 June 2008, 9-13). 75 Cross-examination (Prosecution) of DAG-101 (Trial Transcript, 9 June 2008, 160-61). 76 Testimony of DAG-110 (Trial Transcript, 2 June 2008, 48-50, 69); Cross-examination (Prosecution) of DAG-080 (Trial Transcript, 9 June 2008, 36).

15

their roles in creating a context in which impunity was the norm, as opposed to trying them only for committing or ordering the commission of crimes. (e) War Crimes Perpetrated by Non-RUF Actors Apart from providing positive evidence of Gbao’s lack of individual or command responsibility for various war crimes, the Gbao Defense’s witnesses also discussed a variety of war crimes perpetrated by actors other than the accused. (i) Liberian Gios as the Primary RUF-Connected Perpetrators of Human Rights Abuses As did counsel for Issa Sesay,77 the Gbao Defense had witnesses testify to the effect that Liberians, predominantly those of the Gio tribe, were fully responsible for the conduct of the war, including human rights abuses, during the early 1990s.78 Witnesses stated that, during the early years of the war, the Gios frequently engaged in forcible conscription, looting, and other abuses, which culminated in two 1992 missions geared towards brutalizing or killing any Sierra Leoneans they saw, including Vanguards: “top 20” and “top 40.”79 These attacks provoked “top final,” a local Sierra Leonean operation meant to eject the Liberians (who did, in any case, withdraw in early 1993 per Sankoh’s orders).80 Only following top final did Vanguards, the original Sierra Leonean members of the RUF organized in Liberia, including Issa Sesay and Augustine Gbao, take the lead in the RUF war effort.81

(ii) CDF/Kamajor, ECOMOG, and GOSL Attacks on Civilians DAG-048 discussed cases of refugee civilians, especially those suspected to be connected to the RUF, suffering severe abuse at the hands of ECOMOG troops and Kamajors.82 Similarly, various witnesses stated that because ECOMOG troops made no effort to distinguish civilians from fighters, especially when it came to helicopter gunship attacks, life became very difficult in Makeni following the ECOMOG intervention.83 In contrast, relations between civilians and the RUF were cordial at the time.84 As noted below, many witnesses testified to rampant governmental/ECOMOG attacks on civilians during cross-examination by the Sesay Defense.85

(f) Gbao’s Personal Character and Relations with Other RUF Members Evidence presented by the Gbao Defense regarding his personal character lived up to the defendant’s portrayal in Cammegh’s opening statement. The witnesses for Gbao characterized him as a sensitive and educated man, largely reviled by the leadership and the rank-and-file alike 77 See Michelle Staggs Kelsall, “Report on the Tenth Session of the RUF Trial, SCSL” (17 January 2008), 10-12. 78 See, e.g., Testimony of DAG-101 (Trial Transcript, 9 June 2008, 66-70); Testimony of DAG-048 (Trial Transcript, 3 June 2008, 16). 79 Testimony of DAG-110 (Trial Transcript, 2 June 2008, 33-34, 48, 62-64); Testimony of DAG-048 (Trial Transcript, 3 June 2008, 5); Testimony of DAG-080 (Trial Transcript, 6 June 2008, 10-12). Some witnesses even recounted suffering abuse at the hands of the Gios themselves. Testimony of DAG-080 (Trial Transcript, 3 June 2008, 17). 80 Testimony of DAG-110 (Trial Transcript, 2 June 2008, 64); Testimony of DAG-048 (Trial Transcript, 3 June 2008, 16); Testimony of DAG-080 (Trial Transcript, 6 June 2008, 10-11). 81 Testimony of DAG-110 (Trial Transcript, 2 June 2008, 62); Testimony of DAG-048 (Trial Transcript, 3 June 2008, 11, 13). 82 Testimony of DAG-048 (Trial Transcript, 3 June 2008, 69). 83 Testimony of DAG-018 (Trial Transcript, 16 June 2008, 7-8); Testimony of DAG-047 (Trial Transcript, 16 June 2008, 90-93). He also recounted a personal anecdote of abuse at the hands of ECOMOG troops. Id. at 82-83. 84 See supra Section IV(b). 85 See infra Section V.

16

for his intellectualism, lack of combat experience, and commitment to the RUF’s stated ideological goals. Gbao was rarely seen with other senior RUF commanders (including Bockarie), who at times severely verbally and physically abused Gbao, especially due to his attempts to investigate allegations of humanitarian abuses by RUF members, regardless of their rank, including Bockarie’s own bodyguards. Even junior officers, nominally beneath Gbao in rank, outright insulted him for his lack of combat experience. Gbao was thus a loner, increasingly isolated throughout the war in spite of (or perhaps because of) his steadfast commitment to the RUF’s true ideology.86 Contrary to his relations with RUF fighters, Gbao was quite popular with civilians and could usually be found playing draughts or chatting with them. Gbao was known as a man who treated everyone kindly and lacked the materialistic motives or trappings of many of his fellows, driving an old car, wearing tattered clothes, and clinging to only two prized possessions: his Oxford dictionary and his supply of cigarettes.87

Given the picture of Gbao’s personality and character that emerged from his defense, it was no surprise that every witness expressed disappointment at his indictment, with DAG-110 going so far as to state that “if everybody in the RUF would have acted the way Gbao acted, there would have been no court today.”88

(g) Gbao’s Individual Responsibility for War Crimes Proving that Gbao lacks individual responsibility for any war crimes was not so much a featured aspect of the evidence related as it was a footnote in each witness’s testimony. One might even say that witnesses brushed aside any notion that Gbao could have ever directly participated in any atrocities with such ease that no further discussion was necessary.

Witnesses for Gbao consistently described him as a non-combatant, even a half-civilian, in spite of his status as a Vanguard, one of the few Sierra Leoneans involved with the RUF during its earliest planning stages. In fact, only during rare instances, such as mass retreats, would Gbao even carry a gun; according to DAG-101, he perhaps never carried one. As a survey of the sample transcript sections cited below indicate, various witnesses stated that Gbao never participated in any atrocities in general (and refused to concede otherwise on cross-examination). For example, Gbao never used child soldiers as bodyguards and was against their usage by other RUF members. On cross-examination, witnesses denied knowledge of various incidents related during the Prosecution’s case, such as an incident that took place between Gbao and a Lebanese woman in Makeni.89

86 For examples of RUF members’ abuses and negative views of Gbao, see Testimony of DAG-110 (Trial Transcript, 2 June 2008, 83, 86-88); Testimony of DAG-048 (Trial Transcript, 3 June 2008, 45, 48-49); Testimony of DAG-080 (Trial Transcript, 6 June 2008, 14-18, 30-33, 36-38); Testimony of DAG-101 (Trial Transcript, 9 June 2008, 120). 87 See Testimony of DAG-080 (Trial Transcript, 6 June 2008, 34-38); Testimony of DAG-110 (Trial Transcript, 2 June 2008, 35-36, 46, 74-75); Testimony of DAG-101 (Trial Transcript, 9 June 2008, 118-119); Cross-examination (Prosecution) of DAG-101 (Trial Transcript, 10 June 2008, 16-17); Testimony of DAG-047 (Trial Transcript, 17 June 2008, 14); Testimony of DAG-111 (Trial Transcript, 17 June 2008, 53-55). 88 Testimony of DAG-110 (Trial Transcript, 2 June 2008, 67-69). See also Cross-examination (Prosecution) of DAG-048 (Trial Transcript, 5 June 2008, 26); Testimony of DAG-080 (Trial Transcript, 6 June 2008, 30-31, 36-37); Cross-examination (Prosecution) of DAG-101 (Trial Transcript, 10 June 2008, 37). 89 Testimony of DAG-047 (Trial Transcript, 17 June 2008, 13). On Gbao’s history as a Vanguard and his non-combatant status, see Testimony of DAG-110 (Trial Transcript, 2 June 2008, 107); Testimony of DAG-048 (Trial

17

(h) The Role of RUF Ideology in the War Many commentators have argued that the RUF was essentially an organization without ideology, an organization that only voiced vaguely progressive principles when expedient in order to distract attention from its rampant criminal activities.90 Some support for this view came out during the Gbao Defense case, such as when DAG-048 claimed that, in spite of their war crimes, even the infamous Gio faction claimed that the war was meant to rescue Sierra Leone from its government’s failures to provide decent hospitals, roads, etc.91 A host of witnesses discussed the RUF code of conduct’s civilian-friendly tenor and its role in their training, but also indicated that fighters seemingly broke this ideology at will.92 DAG-048 probably reflected this ambivalence best when he stated that he stayed in RUF both because he believed in its ideology and because he was afraid he would be killed if he disobeyed his commanders.93

And yet, whether or not the RUF ever had a coherent political program, the Gbao Defense certainly presented its client as a man strongly committed to these goals.94 In the end, it was not clear whether this was intended to contribute to the depiction of Gbao as a beleaguered police officer in over his head or to contribute to the depiction of Gbao as the white knight of the RUF.95

(i) Non-Evidentiary Notes on Witness Testimony and Credibility In addition to some of the credibility-related issues discussed during my summaries of testimony and cross-examination, I would add the following notes. In general, witnesses for the Gbao Defense were articulate, plausible, and consistent. In this monitor’s opinion, both insider and crime-base witnesses were quite credible; none seemed so close to Gbao that a conflict of interest appeared to loom, but many seemed just close enough to him to have gained knowledge of his behavior during the conflict and to have developed a justifiable concern that he be treated fairly by the Court. The Gbao Defense case did not feature the sort of incredulous moments that have characterized other phases of the trial, such as those alluded to by Cammegh in his opening statement.96 A few witnesses had trouble keeping locations and dates perfectly clear.97 However, this sort of confusion seemed to emerge due to the fact that the events in question took place several years Transcript, 3 June 2008, 28); Testimony of DAG-080 (Trial Transcript, 6 June 2008, 14). On his carrying a gun, see Testimony of DAG-110 (Trial Transcript, 2 June 2008, 85); Testimony of DAG-101 (Trial Transcript, 9 June 2008, 117-118); Testimony of DAG-018 (Trial Transcript, 16 June 2008, 27); Testimony of DAG-047 (Trial Transcript, 17 June 2008, 10). On his views and non-use of SBUs, see Testimony of DAG-110 (Trial Transcript, 2 June 2008, 88-89); Testimony of DAG-048 (Trial Transcript, 3 June 2008, 98-99); Testimony of DAG-080 (Trial Transcript, 6 June 2008, 90-91); Testimony of DAG-101 (Trial Transcript, 9 June 2008, 120-122). On his lack of participation in crimes against civilians, see Testimony of DAG-080 (Trial Transcript, 6 June 2008, 25-26); Testimony of DAG-110 (Trial Transcript, 2 June 2008, 69). See also Indictment, Counts 3-9, 12-14. 90 See Gberie, 201-203 (including some of Gbao’s own statements on the purposes of the revolution). 91 Testimony of DAG-048 (Trial Transcript, 3 June 2008, 6). 92 See, e.g., id. at 10, 18-19; Cross-examination (Sesay Defense) of DAG-048 (Trial Transcript, 3 June 2008, 110). 93 Cross-examination (Prosecution) of DAG-048 (Trial Transcript, 5 June 2008, 24-26). 94 Testimony of DAG-048 (Trial Transcript, 3 June 2008, 28). See also supra Section IV(a)(ii). 95 See supra Section IV(b). 96 See Gbao Defense Opening Statement (Trial Transcript, 2 June 2008, 7). 97 See, e.g., Testimony of DAG-048 (Trial Transcript, 3 June 2008, 42-43) (where the witness claims that Gbao was in Makeni in 1998, then that Gbao shuttled between there and Buedu, and later adds Pendembu to the list).

18

ago in a context of violence and chaos, not due to any bad faith on the part of the witness. Unlike during some earlier stages of the RUF trial, terminological issues (such as conflation of the terms “RUF” and “rebels,” etc.) did not arise during the Gbao case,98 though DAG-080’s strident rejection of the OTP’s use of the term “orders” (as opposed to “instructions”) bordered on the pedantic.99 Only a couple of civilian witnesses wavered regarding Gbao’s exact rank in the RUF.100 Ironically, though perhaps unsurprisingly, both the Gbao Defense and the Prosecution often made a point of inciting the witness to express disappointment that Gbao had been indicted by the Court.101 Also, the Prosecution often tried to put it to witnesses that they had directly lied about issues such as Gbao’s command responsibility or alleged usage of child soldiers, but witnesses credibly riposted these efforts.102 However, witnesses’ tendency to state the exact age ranges of Gbao’s bodyguards (e.g. DAG-101’s statement that Gbao’s securities were all twenty-one) appeared too directly on point; it is difficult to imagine these witnesses actually knowing each bodyguard’s exact age.103 V. Testimony Elicited on Cross-Examination (a) Sesay Defense’s Cross-Examination On cross-examination, counsel for Issa Sesay primarily attempted to bolster the central theory of its defense: that Kailahun District was effectively the home base of the RUF in the late 1990s, during which time civilians worked with the RUF on community projects, attended RUF-supported schools and hospitals, and only suffered at all due to government attacks on the region (as well as other parts of the country).104 Witnesses, especially insiders, tended to corroborate this theory. Witnesses not present in the Kailahun area were often asked questions regarding war crimes in general and any knowledge of the first accused that they may have had.

• DAG-110: The witness confirmed that government attacks and blockades were the primary

cause of Kailahun District civilians’ suffering and inability to move about the country, and that the opening of RUF farms, schools, and trading sites provided relief for the beleaguered people of Kailahun.105 He also responded to the effect that, during the short period in which Issa Sesay had a farm in Kailahun, the civilians who worked there did so voluntarily.106

• DAG-048: The witness confirmed that Bockarie was in total control of the RUF in 1998, with

commanders of various units reporting directly to him.107 He also spoke to the RUF’s cordial relationship with civilians in Kailahun and its attempts to govern the district fairly and its use

98 See, e.g., id. at 12 (stating that “RUF” and “rebels” refer to the same thing in his mind). 99 Cross-examination (Prosecution) of DAG-080 (Trial Transcript, 9 June 2008, 26-27). 100 See, e.g., Cross-examination (Prosecution) of DAG-110 (Trial Transcript, 2 June 2008, 140). 101 See, e.g., Testimony of DAG-110 (Trial Transcript, 2 June 2008, 68-69); Cross-examination (Prosecution) of DAG-048 (Trial Transcript, 5 June 2008, 26); Cross-examination (Prosecution) of DAG-080 (Trial Transcript, 9 June 2008, 61-62); Cross-examination (Prosecution) of DAG-101 (Trial Transcript, 10 June 2008, 37). 102 See, e.g., Cross-examination (Prosecution) of DAG-048 (Trial Transcript, 5 June 2008, 17-18). 103 See, e.g., Testimony of DAG-101 (Trial Transcript, 9 June 2008, 118). See also Cross-examination (Prosecution) of DAG-101 (Trial Transcript, 10 June 2008, 11) (for the Prosecution’s implication of this point). 104 See Staggs Kelsall, 11-13. 105 Cross-examination (Sesay Defense) of DAG-110 (Trial Transcript, 2 June 2008, 115-122, 124). 106 Id. at 125-126. 107 Cross-examination (Sesay Defense) of DAG-048 (Trial Transcript, 3 June 2008, 101-108).

19

of voluntary labor in constructing an airfield and operating farms there.108 The witness mentioned Bockarie’s sending Sesay to the front line in Pendembu as punishment for a diamond-related dispute.109

• DAG-080: The witness confirmed that Bockarie largely usurped the authority of other

commanders, such that unit commanders rarely reported to other “high command” members;110 that the RUF prohibited the use of SBUs in Kailahun District in spite of Bockarie’s usage of them;111 and that children received only educational instruction, not military training, at schools in and around Kailahun District.112 Strikingly, he claimed that “80 to 90 percent” of families living in Kailahun during the war had family members serving with the RUF.113

• DAG-101: The witness bolstered the Sesay Defense’s theory of life in Kailahun in the latter

stages of the war, noting that most senior commanders, like Gbao, opposed abuses of civilians per RUF ideology.114 She also confirmed, with reference to an RUF pamphlet, that RUF ideology was against the use of child soldiers, that senior commanders rarely used them, and that the SBU was not a formal “unit,” but was unable to provide a clear picture of the extent of the RUF’s usage of SBUs.115

• DAG-018: The witness testified that abuses perpetrated by RUF members in Makeni were a

result of “indiscipline,” and that some RUF loot was redistributed among civilians.116 He also confirmed that Superman used child soldiers, who behaved in a frightening and undisciplined fashion, but that Sesay never did.117

• DAG-047: The witness testified that, given the limited number of guns available in Makeni

and the prevalence of government attacks there, the RUF (primarily the Sesay group) protected the safety civilians, including those who were nominally members of the CDF, per their stated mission of transforming the “rotten” Sierra Leonean governmental system.118

• DAG-111: The witness confirmed that the Zambian UNAMSIL hostages were treated

humanely as he and Sesay transported them from Makeni to Kono.119

(b) Prosecution’s Cross-Examination The Prosecution typically attempted to impugn witnesses’ credibility or consistency with little success. Their stories tended to be internally consistent, if not quite complete. As noted below,

108 Id. at 109-114, 117-120. 109 Id. at 112. 110 Cross-examination (Sesay Defense) of DAG-080 (Trial Transcript, 9 June 2008, 2-8). 111 Id. at 10-11, 15-16, 19. 112 Id. at 15-20. 113 Cross-examination (Sesay Defense) of DAG-080 (Trial Transcript, 6 June 2008, 91). 114 Cross-examination (Sesay Defense) of DAG-101 (Trial Transcript, 9 June 2008, 150-157, 125-126). 115 Id. at 134-145. 116 Cross-examination (Sesay Defense) of DAG-018 (Trial Transcript, 16 June 2008, 29-31). 117 Id. at 32-36. 118 Cross-examination (Sesay Defense) of DAG-047 (Trial Transcript, 17 June 2008, 15-24). 119 Cross-examination (Sesay Defense) of DAG-111 (Trial Transcript, 19 June 2008, 10-14).

20

the most dramatic testimony elicited during cross-examination related to the second accused, Morris Kallon.120

• DAG-110: The witness confirmed that civilians’ travel privileges were limited after the

junta’s fall,121 but refused to confirm any of a host of allegations made by the Prosecution regarding the RUF’s trading practices and mistreatment of civilians by the RUF and Gbao.122

• DAG-048: The witness did not stray from his description of the RUF’s security units and

Gbao’s command responsibilities therein.123 Related to this, the Prosecution provided a copy of a death warrant seemingly signed by Gbao, which led to a lengthy debate, as discussed above.124

• DAG-080: The witness refused to retract his description of RUF schools in Kailahun.125 He

also restated his description of the command structure and power relations within and across units, including Gbao’s role therein, and declined to comment on a document that seemingly called the veracity of this description into question.126 The witness also provided his views on the prevalence of various war crimes, including forced labor, forced marriage, and the use of child soldiers.127 The witness provided a somewhat confused answer to the frequency of radio communication within the security units as well.128

• DAG-101: The witness confirmed her description of the joint security units and Gbao’s

largely administrative role in the RUF’s command structure,129 as well as her description of the RUF’s policies on and usage of child soldiers.130 Her testimony on rape and forced marriage indicated some uncertainty as to the latter concept.131 During cross-examination, the parties sparred at length regarding the witness’s connection to a current Gbao Defense employee, which the Prosecution attempted to use to impugn her credibility.132

• DAG-018: The witness admitted that he had heard of “rebels” burning houses, raping women,

etc. during the retreat from Freetown, but never stated that these war criminals were RUF members.133 He also heard about junta members committing crimes during their retreat from Freetown, but did not speak to any RUF-AFRC nexus.134 The witness asserted that Gbao did not use child soldiers, but stated that he had heard of “rebels” using them.135

120 See infra Section VII(a). 121 Cross-examination (Prosecution) of DAG-110 (Trial Transcript, 2 June 2008, 127-28). 122 Id. at 129-132, 137-138, 140, 143-145. 123 Cross-examination (Prosecution) of DAG-048 (Trial Transcript, 3 June 2008, 123-140). 124 Id. at 142-153. See also supra Section IV(a)(iii). 125 Cross-examination (Prosecution) of DAG-080 (Trial Transcript, 9 June 2008, 20-21). 126 Id. at 22-26, 33-34, 37-42. See also id. at 42-43 on the death warrant. 127 Id. at 35-38, 44, 56. 128 Id. at 44-47, 55. 129 Cross-examination (Prosecution) of DAG-101 (Trial Transcript, 9 June 2008, 161-163; 10 June 2008, 2-8). 130 Id. at 10 June 2008, 8-13. 131 Id. at 14-19. 132 Id. at 22-26. 133 Cross-examination (Prosecution) of DAG-018 (Trial Transcript, 16 June 2008, 44-46). 134 Id. at 37-38. 135 Id. at 42-44.

21

• DAG-047: The witness admitted that he had heard of junta members engaging in looting and other war crimes during their retreat following the ECOMOG intervention, but stated that he knew of no crimes occurring after the RUF’s December 1998 operations.136 He did not waver on his claim that the only orders Gbao could issue were minor ones for the purposes of punishment,137 nor did he confirm the Prosecution’s allegation that civilians could not travel freely from Makeni to Freetown.138

• DAG-111: The witness’s description of Gbao’s command responsibilities remained fairly

clear and consistent; although he became slightly cagey during cross-examination, this may be understandable given that he was only a driver and that the Prosecution interrogated him quite stridently.139 He confirmed that he heard about war crimes being committed in Makeni, but denied that Gbao had any connection to them or that Gbao advocated for Foday Sankoh’s release from detainment.140 He never encountered child combatants.141 Finally, the witness reiterated his version of the UNAMSIL incident and Gbao’s role in it, most notably stating that second accused Morris Kallon was present (and implying that he was in part responsible).142

• Johann Hederstedt: The Prosecution spent most of its cross-examination questioning the

witness’s experience and credentials, with some findings, such as his admitted lack of experience with guerilla movements in West Africa likely to emerge in closing briefs.143 The witness also commented on civilian-guerilla relations and admitted that the RUF’s invitation to join the junta government was a unique situation that he had not encountered in other insurgency contexts.144

VI. Witness Protection Issues A few minor issues related to witness protection arose during the Gbao Defense case, which primarily revolved around maintaining the confidentiality of various witnesses’ identities. DAG-048 nearly revealed his identity via talking about both his position in the RUF and the location in which he was stationed, but counsel and the bench managed to avoid that potentially awkward situation.145 DAG-101 revealed her name and the names of relatives (including that of a former associate who now works for the Gbao Defense) several times, but these were all redacted from the record.146 Pursuant to RPE 79(iii), Cammegh initially requested that DAG-110’s testimony take place in closed session based on the witness’s interest in keeping his identity private, but eventually dropped this application as no paragraph of RPE 79 fully captured the case at hand.147 One anecdotal witness became visibly distressed at one point, leading counsel for Gbao to

136 Cross-examination (Prosecution) of DAG-047 (Trial Transcript, 17 June 2008, 27-34). 137 Id. at 34-36. 138 Id. at 41. 139 Cross-examination (Prosecution) of DAG-111 (Trial Transcript, 19 June 2008, 15-19, 23). 140 Id. at 21-25. 141 Id. at 40-42. 142 Id. at 22-23, 26-38. 143 Cross-examination (Prosecution) of Johann Hederstedt (Trial Transcript, 24 June 2008, 79-97, 115-16). 144 Id. at 113-117. 145 Trial Transcript, 3 June 2008, 7-8. 146 Trial Transcript, 9 June 2008, 77-78, 83, 85, 99; Trial Transcript, 10 June 2008, 21-23. 147 See Trial Transcript, 2 June 2008, 22; RPE 79.

22

request that the Witnesses and Victims Section attend to him, but nothing noteworthy came of the incident.148

VII. Legal and Procedural Issues149

Procedural issues frequently cast a pall over any pretense of cordiality among the parties and the Court during the Gbao Defense case, as lead counsel for Gbao John Cammegh often found himself at odds with and besieged by a recalcitrant bench. These disputes came to a visible head on June 9th, when Cammegh, upon being prevented from even mentioning the possibility of raising a certain motion, stated that he was “very disturbed” and “quite shocked” by the way the Court had been addressing him.150 This followed on the heels of an out-and-out battle between Cammegh and Presiding Judge Itoe, in which both became visible distraught, with Cammegh especially frustrated by the complaints regarding his comportment and mood in the courtroom.151 Readers should bear this tone in mind when reviewing the more hotly-debated procedural issues discussed below. Nonetheless, other procedural debates, such as the one covered in sub-section (a), yielded constructive outcomes. (a) Potential Conflict of Interests between Gbao and Second Accused Morris Kallon

Related to the UNAMSIL Incident The most interesting legal issue that arose during the Gbao Defense case was the potential conflict of interest between Gbao and second accused Morris Kallon that arose during DAG-111’s testimony on the UNAMSIL incident. As was later revealed on cross-examination by the Prosecution, Kallon was one of the commanders present at and in part responsible for the peacekeepers’ abduction.152 This claim prevents major problems for the Kallon Defense, as their defense theory for the UNAMSIL incident is one of alibi; Kallon claims he simply was not there when the incident transpired.153

When Cammegh came close to eliciting testimony regarding the behavior of an unnamed commander, later indicated to be Kallon, during his examination, counsel for Kallon objected heartily. In response, Cammegh argued that the Court’s disallowing such testimony effectively privileged Kallon over Gbao, as Gbao’s Defense unavoidably indicates that Kallon was more responsible.154 Cammegh persuasively argued that the rule that one co-defendant cannot implicate another was irrational, prevented the full evidence from being heard, and abrogates the Brdanin & Talic precedent, which states that inculpating co-defendant A is sometimes a by-product of co-defendant B’s defense-in-chief.155 The Court more or less refused to acknowledge that a piece of evidence could both exculpate one co-defendant and inculpate another and simply

148 Trial Transcipt, 16 June 2008, 49-50. 149 For all Rules of Procedure and Evidence (hereafter “RPE”), see Special Court for Sierra Leone, Rules of Procedure and Evidence, available on-line at http://www.sc-sl.org/documents.html. 150 Trial Transcript, 9 June 2008, 71-74. 151 Trial Transcript, 3 June 2008, 94-98. 152 Cross-examination (Prosecution) of DAG-111 (Trial Transcript, 19 June 2008, 30-31). 153 Trial Transcript, 17 June 2008, 124-25. 154 Id. at 101-115. 155 Id. at 115-118. See also Prosecutor v. Radoslav Brdanin & Momir Talic: Decision on Motions by Momir Talic for a Separate Trial and for Leave to File a Reply (IT-99-36-T), available online at http://un.org/icty/brdjanin/trialc/decision-e/00309ST212150.htm.

23

repeated that prosecution was not Cammegh’s job, though Judge Thompson persuasively pointed out the judicial interest in avoiding a three-cornered fight.156

In response, the Kallon Defense emphasized the limits to how much one co-defendant can inculpate another, the lack of notice it had received from the Gbao Defense, and the CDF case decision that the Prosecution could not, on cross-examination of a witness for co-defendant A, elicit direct evidence from co-defendant B.157 This legal argument was less than persuasive, given that Cammegh was in direct examination and was only threatening to implicate Kallon as a by-product of exculpating Gbao. Ultimately, the Court ruled that the question was permissible so long as Kallon’s name was never mentioned.158

The following day, indicating not so much the superfluity of the preceding debate as the absurdity that procedural straitjackets can produce, DAG-111 told the Prosecution that the commander in question was Kallon.159 The Kallon Defense later requested that this be stricken from the record, but, in spite of its CDF ruling, which actually seemed relevant in this case, the Court rejected the objection and instructed the Kallon team to take up the issue in its final brief.160 The implications of this incident for war crimes prosecution and defense are quite sweeping, as many potential future prosecutions, such as those pending against alleged members of the Khmer Rouge, the Lord’s Resistance Army, and the Sudanese government, may well simultaneously indict multiple accused in the manner of the Special Court. In current practice, it is clearly quite difficult to determine the extent to which, and under what circumstances, one co-defendant might present evidence implicating another defendant’s guilt without offending the latter’s right to a fair trial. Unfortunately, this kaleidoscopic procedural issue was not resolved by the Gbao case. (b) Court Rejects Gbao Defense’s Motion to Stay Proceedings161

On June 16th, Trial Chamber I ruled on the Gbao Defense’s June 10th motion, which the Defense later supported with a submission of the recent Lubanga decision, requesting (a) a stay of trial proceedings of counts fifteen through eighteen against Gbao for the Prosecution’s violation of RPE 68, (b) in the alternative, to be permitted to reorder its witness list pursuant to an oral hearing, and (c) to disclose an unredacted version of DIS-312’s statement, dated 21 June 2004 (which formed a basis for the first request). The Prosecution requested that the Court dismiss all requests; Kallon Defense requested that the Court dismiss the third request. The Court unanimously denied the motion in its entirety. It denied request (a) on the basis that the submission in question had been made nearly twenty months prior to the Gbao Defense’s motion and only about ten days prior to the closure of its case. The Court denied request (b) on the basis that the Gbao Defense had failed to provide any compelling reason for the Court to alter the normal RPE 73(a) procedure, which mandates that all such decisions will be made based

156 Trial Transcript, 17 June 2008, 106-116. 157 Id. at 118-124. 158 Id. at 132-33. 159 Cross-examination (Prosecution) of DAG-111 (Trial Transcript, 19 June 2008, 30-31). 160 Trial Transcript, 19 June 2008, 42-48. 161 Trial Transcript, 16 June 2008, 51-59. See also Trial Transcript, 24 June 2008, 119-20 (Court confirms that the motion is still being considered). See also Prosecutor v. Thomas Lubanga Dyilo decision dated 13 June 2008 (ICC-01/04-01/06-1401).

24

solely on written submissions. Finally, it denied request (c) on the grounds that DIS-312 is still a protected witness on the application of the Sesay Defense. The Court conceded that the Prosecution had breached RPE 68, but held that Gbao’s Defense had failed to prove that it suffered any material prejudice from this breach, rendering request (a) “disproportionate, extraordinary, and unjustified.” In response to this ruling, counsel for Gbao John Cammegh requested the Court’s guidance on how to put forth an appeal. After a brief deliberation, the Court stated that, given the lack of extraordinary circumstances (such as all parties agreeing to appeal), Cammegh would have to put his appeal in writing. The Court did not rule on this appeal before the Gbao Defense’s evidence ended. (c) Prosecution Objections to the Expert Testimony of General Hederstedt Legal and procedural debates somewhat overshadowed actual testimony during the examination of General Hederstedt. Of the 204 pages of transcript produced during his examination-in-chief, approximately 123 are devoted to such debates.162 A good deal of the remainder is composed of counsel for Sesay’s attempts to put to rest any doubts about the witness’s expertise. First, for several minutes prior to Hederstedt’s testimony, the Court inquired as to his precise qualifications and area of expertise, in spite of a CV indicating thirty years of experience, largely spent studying and working with guerilla movements.163 The Prosecution then took issue with the Defense’s preliminary disclosures, arguing that the transcripts read by the witness, as well as his prior, Defense-led visit to Sierra Leone were not properly disclosed.164 The Court allowed questioning to continue, but reserved the question of how much weight to accord the testimony.165 The Prosecution later asserted that the expert’s report did not cover the whole of his testimony and reiterated its prior objections.166

Counsel for Issa Sesay’s frustration with these objections became quite clear when he said “Well, I can – I can understand why the Prosecution doesn’t want a military expert to comment on evidence. I can understand that. Because it might help to explain and that explanation would expose the Prosecution case.”167 He also contrasted his team’s disclosures with the comparatively minimal ones made by the Prosecution for its experts.168 More procedural debates arose on the second day of Hederstedt’s testimony.169

(d) Cammegh’s Insistence that Prosecution Must Have Evidentiary Grounds for Cross-

Examination Questions Cammegh repeatedly jousted with the bench regarding the propriety of questions posed by the Prosecution on cross-examination. This issue first arose during DAG-110’s testimony, when the Prosecution asked a question regarding Gbao’s trading habits that, according to Cammegh, was 162 See Trial Transcript, 23 June 2008, 2-121; 24 June 2008, 2-79. 163 Trial Transcript, 23 June 2008, 5-18. At one point, lead counsel for Issa Sesay simply understandably stated that he was “at a loss” in response to this seemingly unexpected interrogation. Id. at 9. 164 Id. at 45-63. 165 Id. at 59-60. 166 Id. at 74-99, 116, 120. 167 Id. at 76. 168 Id.at 92. 169 Trial Transcript, 24 June 2008, 7-14, 100-103.

25

baseless.170 It re-emerged during DAG-048’s testimony, when the Prosecution put it to the witness that Gbao had recommended the massacre of sixty-five Kamajors, to which Cammegh objected, stating that there was no evidential foundation for such a claim.171 The second instance of this nature led to a lengthier debate, in which Cammegh claimed that a scenario could not be put to a witness unless, at some point during trial, there had been some evidential foundation provided for it (in this case, the issue was whether Gbao had ever forced anyone to marry him).172 Cammegh specified his point to say that the Prosecution should adopt a more explicitly interrogatory manner, so as not to lead the Court and/or the witness into believing that evidence had been forth that had not. Ultimately, the Court allowed the question to be restated as it had initially been put. The next day, another lengthy debate emerged around the same issue, which again led to Cammegh’s being overruled, though he did thank the Court for entertaining a “mature debate” on the subject, which included comparisons of procedural norms across jurisdictions.173 Nonetheless, Cammegh made an identical objection during the next witness’s testimony; this time, he was pithily overruled.174

(e) Prosecution and Bench Objections to Cammegh’s Questions on Re-Examination Cammegh also found himself procedurally besieged with regards to his re-examinations.175 The Court twice admonished him at length for asking questions that it felt had been sufficiently covered in chief, once provoking him to simply drop his re-examination in its entirety.176 The only such instance cordially resolved was Cammegh’s misunderstanding of a question posed to DAG-110 during cross-examination, which led him to ask an improper question on re-examination, which was quickly dropped.177 Given these issues and the palpable tension between the Gbao Defense and the bench, it was some in some sense unsurprising, even if not necessarily related, that Cammegh did not re-examine his final three non-expert witnesses at all.178

VIII. Court Management Issues: Punctuality, Stenographic Accuracy, and

Administrative Tensions Court management issues played a minor role in the Gbao case as, in spite of some reordering of witnesses,179 the trial proceeded roughly as scheduled and finished on time. Nonetheless, delays caused by administrative issues or personal tardiness marred the Gbao Defense trial, as they marred the Sesay trial.180 Although a full tabulation and study of these timing issues and their impact is outside the scope of this report, a survey of morning start times, provided on the first page of each transcript, indicates that proceedings began over fourteen minutes late on average. Before Cammegh even made his opening statement, Presiding Judge Itoe addressed this issue,

170 Cross-examination (Prosecution) of DAG-110 (Trial Transcript, 2 June 2008, 138-39). 171 Cross-examination (Prosecution) of DAG-048 (Trial Transcript, 5 June 2008, 21). 172 Trial Transcript, 9 June 2008, 48-54. 173 Trial Transcript, 10 June 2008, 26-35. 174 Trial Transcript, 16 June 2008, 42. 175 Similarly, Wayne Jordash, lead counsel for Issa Sesay, was repeatedly – and bewilderingly – admonished for “lecturing” during cross-examination. Trial Transcript, 9 June 2008, 11-15; Trial Transcript, 17 June 2008, 24. 176 Trial Transcript 5 June 2008, 27-30; Trial Transcript, 10 June, 40-42. 177 Re-examination of DAG-110 (Trial Transcipt, 2 June 2008, 149-150). 178 See Trial Transcript, 16 June 2008, 48; 17 June 2008, 43; 19 June 2008, 42. 179 Trial Transcript, 10 June 2008, 43-57. 180 See Staggs Kelsall, 20-25, 31.

26

stating that any delays must be reflected in the Court’s official records and, moreover, wholly denying any responsibility for such delays on the part of the bench.181

Two other court management issues arising included (a) the Gbao Defense’s efforts to ensure that witnesses spoke slowly and clearly enough to allow for effective stenography and interpretation,182 and (b) the continuing tension between the Defense Office and the individual teams, manifested in Cammegh’s pithy June 17th statement regarding this matter.183

IX. Conclusion On June 24th, 2008, evidence in the final phase of the lengthy and labyrinthine RUF trial came to a close. Not so coincidentally, considering that it was the final stage of the RUF trial, many issues that have surrounded the Court since its inception crystallized during the Gbao Defense case. Tensions between the bench and the bar frequently came to a boiling point, obstructing the pace of trial and, from the Defense’s perspective, possibly even calling into question the integrity of the proceedings. Moreover, Cammegh’s opening statement indicated that the blisters left by the Prosecution’s histrionic opening statement, usage of insider witnesses, and spectacular and oft-amended indictment have yet to heal. After four years of work, some Defense attorneys at the Court seem unsure whether their case has truly been heard, even with management issues such as equality of arms left unconsidered. Legal issues such as the impartiality of the judges and the sensibleness and fairness of trying multiple defendants at once also reemerged during the Gbao Defense case. Both the evidence itself and the legal ideas of command responsibility and joint criminal enterprise indicate that, to some extent, these trials are investigating the activities of entire organizations (or, and even more complex, of loosely-connected groups of individuals labeled “organizations”). Of course, analysts might also wonder whether these issues are best cast as “legal” at all, and whether Judge Thompson’s promise that the Court would never “allow politics to intrude into the domain of the impartial and dispassionate administration of justice” has played out in practice, or whether Gbao’s now four-year-old statement that “there is no… judicial exercise without politics” has been disproved.184 Some may argue that, prior to and separately from the trial itself, issues such as the scope of the Court’s jurisdiction and the Prosecution’s choice of defendants were sufficiently dealt with. However, it seems more likely that the trial itself was shot through with these issues in various senses, and that the SCSL experience has created a host of new questions as to the efficacy and best practices of international criminal jurisprudence. Nonetheless, the Gbao case did finish on time and was not troubled by major procedural setbacks, court management problems, or witness protection concerns. The target date for closing arguments was not compromised, and it seems that the judgments should arrive well before the end of the year. Finally, taken in its totality, the RUF evidence has also indicated that, in spite of their possible shortcomings, international criminal proceedings have the potential to

181 Specifically, Judge Itoe stated that “it looks like we’re sitting there and we don’t want to come to Court. We come to Court when we are told that the Court is ready, so if the Court is not ready the Judges do not take responsibility for that at all.” Trial Transcript, 2 June 2008, 2. In some cases, this is supported by the transcripts: for example, on June 2nd, Court resumed sixteen minutes late because the judges were in a meeting with Court Management. Id. at 53. 182 Trial Transcript, 2 June 2008, 60, 65; Trial Transcript, 3 June 2008, 5; Trial Transcript, 17 June 2008, 45-46. 183 Trial Transcript, 17 June 2008, 84. See also Trial Transcript, 23 June 2008, 51. 184 Trial Transcript, 6 July 2004, 8-11.

27

build historical records greater in scope and detail than any individual researcher or institution ever could. This sensitivity to empirical detail and complexity calls into question any attempt to cast the events and actors of lengthy conflicts like the Sierra Leone Civil War in black-and-white terms. If nothing else, it has become clear via the trial of Sesay, Kallon, and Gbao that the RUF was not a monolith, but a fragmented and tangled web of revolutionaries and criminals, ideologues and illiterates, fighters and civilians. And though the evidence is now closed, the difficulties encountered by the Court will help ensure that the historical record will remain an open subject of debate.

28

          This publication was originally produced pursuant to a project supported by the War Crimes Studies Center (WCSC), which was founded at the University of California, Berkeley in 2000. In 2014, the WCSC re-located to Stanford University and adopted a new name: the WSD Handa Center for Human Rights and International Justice. The Handa Center succeeds and carries on all the work of the WCSC, including all trial monitoring programs, as well as partnerships such as the Asian International Justice Initiative (AIJI). A complete archive of trial monitoring reports is available online at: http://handacenter.stanford.edu/reports-list For more information about Handa Center programs, please visit: http://handacenter.stanford.edu