[10/25/2022] Day 12 : Sexual violence
Defence case on procedural issues
The defense lawyer began by recalling that the NGO Civitas Maxima had filed a complaint against Kunti Kamara on July 23, 2018 on the charge of crimes against humanity for acts committed in Liberia 25 years earlier. He then clarified that the procedural incidents were not applicable to the crime against humanity, which has no statute of limitations, to focus on all the other charges. He recalled that the statute of limitations for criminal proceedings was 10 years under article 7 of the Code of Criminal Procedure, in force in 1994. In this case, Kunti Kamara is accused of having committed acts of torture and barbarism between March 1993 and December 1994. According to the defence counsel, the public prosecution of these acts is therefore time-barred.
The defence counsel then returned to the argument that the prosecution had been suspended until March 2005 because of the war in Liberia, pursuant to article 9 (3) of the Code of Criminal Procedure, which states that any insurmountable factual obstacle that can be assimilated to force majeure, which makes it impossible to initiate or carry out the prosecution, suspends the statute of limitations. According to the defence counsel, this argument cannot stand up to the historical context, since there have been two civil wars. The first one lasted until 1997 and was followed by elections described as free, honest and peaceful by the newspaper Le Monde, in the presence of 500 foreign observers. According to the defense lawyer, Liberian institutions were in perfect working order in 1997, the date when the statute of limitations began to run. Defense counsel argued that it was obvious that with Charles Taylor in power, the Liberian authorities were able to provide every possible avenue of recourse for litigants against ULIMO, the NPFL’s enemy. As for the second civil war, it broke out in 1999 and could have been such as to suspend the statute of limitations again if one considers that the State was no longer able to dispense justice at that time. However, the war ended in 2003 with the signing of the Accra Agreements. Under the Accra Accords, a ceasefire was declared with immediate effect and a transitional government was put in place, so that conditions in the country again allowed the Liberian authorities to prosecute KK, if they deemed it necessary.
According to the defence counsel, as of the ceasefire in 2003, the territory was not under occupation and the rebels had laid down their arms. Contrary to what was argued by the investigating judge, the 1919 jurisprudence, which calls for a suspension of the statute of limitations in the event of enemy occupation, is therefore not applicable in this case. In support of his argument, defense counsel cited the United Nations Secretary-General’s briefing note on the end of the second Liberian civil war, in which he stated that UNMIL police performed the functions of the national civilian police in terms of on-scene deployment, investigation and maintenance of law and order. The defence counsel stated that investigations were therefore carried out at that time and that, therefore, justice existed on Liberian soil in early 2004. He added that the Prosecution in its case had itself used the year 2003 as the statute of limitations, not 2005. Defense counsel offered an analogy to the purge orders passed in June and August 1944 while France was still partially under German occupation and the establishment of a high court in November 1944 to try Pétain and other accomplices. He said this demonstrated that the end of the war was not synonymous with anarchy. According to him, the statute of limitations had been reached in 2013, not counting the peace phase between the two civil wars.
Defense counsel then discussed the interruptions of the statute of limitations raised by the prosecution and the investigating judge in connection with the prosecution of Alieu Kosiah and the establishment of the TRC.
On the prosecution of Alieu Kosiah, defense counsel recalled that the investigating judge relied on Article 9-2 of the Code of Criminal Procedure to argue that the 2014 order to initiate investigation against Alieu Kosiah had the effect of interrupting the statute of limitations. According to the defense counsel, the order against Alieu Kosiah had no effect on Kunti Kamara’s case, as the statute of limitations on the prosecution had already expired in 2013.
With regard to the second point raised, defence counsel recalled that the prosecution had argued that the statute of limitations on prosecution had been interrupted in 2006 when the TRC had been established and that a new 10-year period had begun to run in 2009. Defense counsel argued that commissions, such as the TRC, do not conduct prosecutions or investigations, but aim for reconciliation. According to him, the TRC is a means of restorative justice that is not intended to substitute for regalian acts of investigation. In support of his argument, defense counsel cited a paragraph from Aurelien-Thibault Lemasson’s thesis, in which Lemasson wrote that TRCs were neither courts nor international bodies. Defence counsel concluded that the TRC was not a judicial body and that its acts could not constitute acts of investigation or inquiry that could interrupt the statute of limitations under article 9 (2) of the Code of Criminal Procedure.
The defence counsel concluded his argument by inviting the Court to find that the statute of limitations had expired for the acts of torture and barbarism and complicity in rape committed between 1993 and 1994, insofar as no complaint had been lodged during the period from 2003 to 2013.
Plea of the Public Prosecutor’s Office on procedural issues
The General Counsel expressed surprise at the filing of submissions on the statute of limitations by the defense, as this legal issue had already been decided in 2018 and no submissions had been made by the defense on the issue of the statute of limitations after the issuance of the indictment order in November 2020. According to the General Counsel, the filing of these submissions two weeks after the opening of the proceedings is just a way to deflect the reality of the case.
The Advocates General returned to the case law of 1er August 1919 referred to by the defence, recalling that the Court of Cassation had interpreted the condition of article 9 (3) of the Code of Criminal Procedure broadly, since it had equated the occupation of the territory by the enemy at the end of the Second World War with an insurmountable de facto obstacle leading to the suspension of the statute of limitations. According to the General Counsel, the two Liberian civil wars undoubtedly constituted an insurmountable obstacle, because of the war, the postponement of talks, the occupation of the territory, the fighting and the abuses. The General Counsel dismissed the argument that the election of Charles Taylor marked the return of the rule of law and the possibility of prosecution, since it is in total contradiction with the existing documentation. The outbreak of the second civil war in 1999, barely two years after the end of the first one, they said, attests to the instability of the country, which could not have had fully functioning institutions, as the defense claims.
With regard to the starting point of the limitation period, the Advocates General acknowledged that they had initially considered that the peace agreements marked the moment from which the limitation period began to run. However, they subsequently took cognisance of all the evidence in the case and agreed with the conclusions of the investigating judge, considering that, despite the peace agreements, the return to the rule of law had been gradual and the victims had not been able to file complaints immediately. The General Counsel thus concluded that the date of publication of the UNMIL report in 2005 was a relevant date to record the end of the suspension of the statute of limitations. They added that the analogy with the situation in France at the end of the Second World War proposed by the defence seemed very inadequate.
The General Counsel then returned to the acts interrupting the statute of limitations. According to them, the limitation period was interrupted by the proceedings against Alieu Kosiah, in his capacity as co-author of Kunti Kamara. The Advocates General recalled that the Court of Cassation has adopted a broad interpretation of the acts of investigation and inquiry that may interrupt the limitation period, considering in particular that foreign acts of prosecution or investigation are interruptive in nature in the same way as acts taken by a ministerial commission established by law. In this respect, the Advocates General referred to the decision of 8 April 2020 of the Court of Cassation.
The General Counsel recalled that in this case, the TRC was established by a law of 10 June 2005 and inaugurated in 2006, and that its mandate was to investigate crimes against humanity committed in Liberia. According to the General Counsel, the nature of the acts of each commission must be analysed in light of the specific mandate given to it, as each commission has its own capacities and responsibilities. In this case, the TRC in Liberia had a mandate that was very clearly investigative and its final report is a perfect illustration of this. Thus, according to the General Counsel, the acts of the TRC can be considered as acts interrupting the statute of limitations, so that the statute of limitations should be considered interrupted as of 2006 and started to run again as of 20 June 2009, i.e. the date of publication of the TRC’s report, closing its work.
With regard to the proceedings brought in Switzerland against Alieu Kosiah, the Advocates General emphasised the connection between the acts alleged against him and those alleged against Kunti Kamara. Therefore, the opening of the investigation in 2014 by the Swiss authorities against Alieu Kosiah also interrupted the statute of limitations according to the General Counsel.
In view of all of this evidence, the General Counsel concluded that the statute of limitations on the prosecution was not tolled on July 23, 2018.
Plea of the prosecution on the procedural issues
The lawyer for the civil parties concluded primarily that the action had been extinguished by reason of foreclosure. She cited article 82-3 of the Code of Criminal Procedure, according to which a person claiming that the statute of limitations had expired at the time of his or her indictment must make his or her claim within six months of the investigating judge’s order challenging the validity of the statute of limitations, failing which the claim would be inadmissible. Since the defence did not appeal, the action is time-barred, according to the civil parties’ lawyer.
In the alternative, counsel for the civil parties stated that she agreed with the arguments developed by the General Counsel. She indicated that the 1997 elections were anything but democratic and recalled that Taylor and Kromah were allied at that time, so that the elections could neither constitute a return to the rule of law nor the starting point of the limitation period, as argued by the defence.
The lawyer for the civil parties added that the conclusion of the peace agreements in 2003 had not been accompanied by the automatic re-establishment of legal and police institutions. As for UNMIL, its mission was to enable a gradual return to peace and not to prosecute former combatants. Its 2005 report noted the absence of the rule of law and judicial institutions. According to the lawyer for the civil parties, Liberia was still a country where total impunity reigned.
With regard to the interruption of the statute of limitations by the TRC, counsel for the parties agreed with the arguments of the prosecution. She recalled that the law establishing the TRC gave it an investigative mandate, including the identification of perpetrators and the registration of complaints. The TRC also had injunctive powers, and an independent magistrate could issue summonses. According to the lawyer for the civil parties, this system attests to a commission that implements full-fledged justice, beyond mere restorative justice, and whose actions are unquestionably capable of interrupting the statute of limitations.
With regard to the interruption of the statute of limitations by the opening of an investigation against Alieu Kosiah, the lawyer for the civil parties agreed with the argument of the prosecution. She made it clear that the facts concerning Kunti Kamara were certainly old, as the defence had argued, but that this trial was in line with international trials, where the age of the facts had no bearing.
Response of the defence
The defence counsel recalled that the plea of prescription was of public order and could therefore be raised at any time. She justified the fact that this incident had not been raised earlier by the lack of means available to the defence.
According to the defence counsel, the mission of the TRC as set out in the founding act was to provide a voice for victims, not to investigate.
The defence counsel then returned to the year 1997. She stated that democratic elections were held in that year and that the international community did not challenge them, which shows that the state was functioning. In addition, there are various documents in the file that attest to the proper functioning of the state system following the signing of the peace agreements.
Finally, the defence counsel argued that the victims’ choice not to file a complaint for financial reasons could in no way justify an interruption of the statute of limitations under the French Code of Criminal Procedure, which should be applied without leaving room for approximation.
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The President indicated that the Court would render its decision on the incident the following day.
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Hearing of RSK as a civil party
When asked about her date of birth, RSK indicated that she was born on 16 May 1986. The Chairperson was surprised by this answer, as the file mentions the year 1978. RSK stated that at the time she did not know her exact age and had to give an estimate. She added that she was a Liberian national and worked as a nurse’s aide in Foya.
Before giving the floor to RSK, the President recalled that she had filed a civil suit in February 2019 and was heard by an OCLCH constable in February 2019 and then by the investigating judge on March 6, 2019. She was also confronted by Kunti Kamara.
RSK began her spontaneous statement by recounting the beginning of the war in Foya. She explained that she hid in the bush with her family and EFNS’s family and said that the rebels were catching women to become their wives. When ULIMO entered the bush, RSK and EFNS sought to flee. RSK reported that EFNS was carrying a baby on her back who started to cry. EFNS stopped to comfort the baby and was captured by ULIMO. RSK reported that two days later, ULIMO came back for her, but she hid. EFNS then came to look for RSK in the bush with a soldier named AG, who told her not to worry and that he would not harm her. The three of them returned to Foya.
When they arrived in Foya, RSK and EFNS were asked to make food and wash the clothes of the ULIMO soldiers. RSK stated that AG did not harm them and took care of them. According to her, AG was Krahn and spoke Mandingo. RSK said that one day AG had to leave on a mission and that other soldiers came to ask them where AG was. They questioned RSK and EFNS insistently, but the latter repeated that they did not know where AG had gone or what had become of him. The soldiers then shot at the wall between RSK’s legs. RSK stated that she and EFNS were scared.
RSK went on to say that after some time, the soldiers started to abuse them. According to her, B arrived and sought out EFNS to take her and force her to become his wife. From there, Kundi came to get them to become their wives and to force them to work for the ULIMO soldiers. RSK said that she and the other women were beaten and raped. She said that two of Kundi’s men grabbed her and raped her in front of him. She begged Kundi to save her. As RSK begged, Kundi referred to her as a “black diamond”, laughed and spoke in his dialect. His men then took RSK away, beat her with their guns and raped her.
RSK also recounted that she tried to go to EFNS at B’s house to give him food. The soldiers told her not to go and hit her. RSK started to cry. She said that when she came back, two boys grabbed her and raped her. Very upset, RSK asked EFNS to run away with her to Guinea, but EFNS told her that if she came with her, they would kill her father and mother. RSK decided to flee after some time.
RSK then recounted the death of her father, who was forced by the ULIMOs to drink boiling water. She said that her father was captured in a church while he was fasting. According to her, when there was a gathering, the ULIMOs chose who they wanted. She indicated that on the day her father was killed, Ugly Boy was in town. After her father’s death, RSK fled into the bush with her siblings. She said that they fled from the rebels and that it was by the grace of God that they survived. Since that day, her brother decided never to return to Foya.
RSK then spoke about the forced labour she experienced. She said that the ULIMOs would take them into the bush and force them to carry very heavy things on their heads. She said that when someone complained of being tired, the soldiers would shoot them. RSK said she was very scared. She said that people would beg the soldiers for food, but they would not give them anything. RSK confessed that she hid some food from the load she was carrying to take home.
RSK also said that B and his men were making a kind of rope out of human intestines and that when you got to the rope, you had to salute and wait until the soldiers let you through.
Before leaving for Guinea, RSK reported seeing Kundi and Ugly Boy tie a man’s arms behind his back and cut off his head. When they saw RSK, they told her, “Little girl, go back. RSK ran back and when she turned around, Kundi and Ugly Boy had killed the man. She said that she ran away from that place and when she left, they were killing the human beings, cutting them up and putting them in a wheelbarrow.
RSK said that ULIMO Papay took them to get some rest and food. On the way, they met Ugly Boy. He was accompanied by a woman and said he wanted to eat a heart. According to RSK, they blindfolded a man, tied his hands, took an axe and cut his chest. They extracted the man’s heart and cooked it before eating it on the spot. When they finished, they told RSK and the others to go on their way. RSK added that her sister T had also witnessed this scene and that the ULIMOs had attacked the group led by Papay by shooting at people. RSK fell to the ground and everyone started running. Once she returned to her mother, RSK asked her to run away with the rest of the family, but her mother refused, as she preferred to die on the spot. So RSK ran away with her sisters.
After learning that EFNS had fallen ill, RSK reported that she returned to Foya to bring her medicine and food and then went back to Guinea. Once in Guinea, she informed EFNS’s brother of her sister’s illness and they returned together to Foya. RSK said that the war was horrible and that they had survived thanks to God.
Court questions RSK:
On questioning, RSK confirmed that she was married to EFNS’ brother after the civil war. She also confirmed that he died of Ebola in Sierra Leone.
When asked about her age at the time of the incident, RSK stated that she was younger than EFNS and that she had breasts but was not yet a woman. She also said that EFNS was carrying her sister’s baby on her back when they fled into the bush.
Upon questioning, RSK confirmed that ULIMO had come into the bush several times to look for her and her family. According to her, ULIMO used to come into the bush to look for civilians and bring them back to town.
When asked about her relationship with AG, RSK confirmed that she had been hosted by AG and that everything was going well. She indicated that AG wanted to take EFNS as his wife, but EFNS did not want to. As AG insisted, RSK advised EFNS to accept in order to protect her family and to avoid being mistreated. EFNS followed RSK’s advice and accepted AG’s proposal.
The President then asked RSK to confirm that AG’s departure on the mission corresponded to the Black Friday episode, which had pitted the Mandingos against the Krahns. RSK indicated that something was going on between them, but that she did not understand. When asked if, after AG left, other ULIMOs had come to deal with her, RSK replied that they had not come to deal with people from Foya, but to torture them before leaving.
When asked about B, RSK indicated that he was a man of some rank, but that he was not a commander. She confirmed that Kundi was B’s superior. Upon questioning, RSK indicated that she had been gang raped several times by Kundi’s bodyguards. She confirmed that this was the reason why she had implored Kundi and added that she considered him as a father because he gave orders. When asked about Kundi’s attitude during the rapes, RSK said Kundi was in a corner and did nothing, while she hoped that as a commander he would tell his soldiers to leave her. She added that despite the pain, she was then forced to go and beat the rice and that during this time, some of her friends were taken away to be raped in turn.
When asked about other rapes she had witnessed in Foya or elsewhere, RSK said she had heard her friends crying while she was threshing rice. She added that the soldiers would take the women to be raped, then throw them aside and go and get other women. On questioning, she said that during the rapes, the soldiers insulted the women, shouted at them and forced them. When asked about the number of rapes she suffered, RSK said she did not remember the exact number, but that the rapes were repeated. According to her, “it was whenever they wanted”.
The Chairperson then asked RSK whether she had witnessed the cannibalism she had described. RSK stated that she had indeed witnessed these acts with her own eyes. She stated that she did not know the victim, but that he was a man who had been blindfolded. She said that he was still alive and that they had tied his hands behind him and removed his heart.
Asked about the other scene she described, in which she allegedly saw Ugly Boy holding a man whose throat was slit by Kundi, RSK said she was passing by and did not expect to witness such a scene. On questioning, she clarified that the scene took place between two houses in Foya. She confirmed that she had seen Kundi and Ugly Boy together on that occasion. When asked about Kundi’s role in the execution, RSK said she had seen Ugly Boy holding the man and Kundi with a knife. The latter allegedly ordered him to leave.
When asked about the rapes she suffered and the after-effects, RSK confirmed that she was repeatedly and violently raped and that she often had back, stomach and head pain. Psychologically, she said she was “blocked” and could not do anything.
The President recalled that RSK had formally recognized the accused during her confrontation with the latter before the investigating judge. He asked her to confirm that she recognized the person in the dock as Kunti Kamara, which RSK confirmed. Asked to address the accused, RSK said: “What I have in my heart, I want to say so that justice is done.
The prosecution questions RSK:
On questioning, RSK confirmed that her father was Pastor TKo and that she had fled to Guinea around Christmas 1994. When asked about her sister ThK, she confirmed that her sister ThK was younger than her and that she was present when ULIMO Papay took them away. RSK added that her sister also had to carry loads on her head.
On questioning, RSK confirmed that Kundi owned a house in Foya. She added that when the ULIMOs found a house, they declared it theirs, as the owners had fled. When asked about the location of Kundi’s house, RSK indicated that it was located near the old market.
Upon questioning, RSK confirmed that she was raped near Kundi’s house and in his presence. She stated that Kundi was present when her bodyguards took her away and that she had begged him to protect her, but Kundi did not say anything. When asked about Kundi’s presence during the rape, RSK stated that Kundi was on the porch of the house, laughing and speaking in her dialect.
When asked about her statements during her confrontation with Kundi that Kundi was digging up bodies to burn them, RSK said that when they heard that Pepper & Salt was coming, they ordered civilians to dig up bodies, remove the bones and take them somewhere else to burn them.
When asked about the song about Kundi that RSK had sung before the investigating judge, she said that it was a song that civilians were obliged to sing. If they did not sing it properly, they were beaten. The President asked RSK what the words of the song were. RSK replied that she did not know the words, but that these songs were praises for ULIMO. She added, “When they came to Foya, whatever you were told to do, you had to do. If you were told to sit, you had to sit. If they told you to sing, you had to sing.
Prosecution questions RSK:
On questioning, RSK confirmed that after AG’s departure, only Mandingos remained in the ULIMO troops in Foya, and that the rapes had started at that time.
The General Counsel then asked RSK to confirm that she had seen Kundi during both episodes of rape, as she had stated before the investigating judge, the first when she asked him for help and the second when his soldiers dragged her before him. RSK said Kundi’s bodyguards repeatedly raped her and she asked for help. She added that B’s bodyguards also caught and raped her. On both occasions, Kundi did nothing to stop them according to her, he stayed on the porch and spoke her dialect.
The General Counsel asked RSK to confirm that during each episode she had been raped by at least two soldiers. RSK confirmed that two soldiers had repeatedly raped her.
When asked about the rapes of her friend EFNS, RSK stated that she did not witness the rapes of EFNS after AG left, but each time she found her shocked, trembling and crying. She added that it was B who raped EFNS and that he used to step on her stomach.
On questioning, RSK confirmed that the rapes had affected her intimate life with her husband, but did not wish to give further details.
Defense questions RSK:
The defence counsel returned to the discrepancies regarding RSK’s date of birth. RSK said she was convinced that she was born in 1978, not 1986, and said that the person in charge of her administrative situation had died. The counsel for the civil parties recalled the existence of two contradictory documents, namely RSK’s Liberian national card which indicates that she was born in 1986 and her air travel declaration which shows the date of 16 May 1978. According to the civil parties’ lawyer, this second date is more in line with the age RSK should be, given the facts she has recounted.
When asked about her statements to the French police that ULIMO had shot EFNS’s father when the families of RSK and EFNS were hiding in the bush, RSK confirmed them and said that EFNS’s father had not died from the wound thanks to the treatment he had received.
When asked about AG’s departure, RSK said that she did not remember the exact date when AG left Foya. On questioning, she said that after AG left, she went to EFNS’s mother’s house near the old market in Foya.
With regard to the rape episodes, the defence lawyer went back over the course of the events, which had taken place over a period of 4 days according to RSK’s statements before the investigating judge. RSK stated that she did not say that she was raped over a period of 4 days, but repeatedly, and then made the decision to leave Foya. She added that every time she had her period, her back and stomach hurt.
The defence lawyer went back to the first statements she made to the French police, in which she claimed that the rape episodes took place over a few days and that Kundi was present only once. RSK did not respond and stated that when ULIMO soldiers took civilians for forced labour, they insulted them, hit them and took them by force.
The defence counsel then asked RSK how she knew that the soldiers and B were carrying out Kundi’s orders. RSK stated that at that time Kundi was an important person, a commander, and when he gave an order, the soldiers had to carry it out. On questioning, she confirmed that she had seen the soldiers carrying out Kundi’s orders.
The defence lawyer returned to the identification of Kunti Kamara by RSK and pointed out that no photographic plate had been presented to her. The defence counsel recalled that RSK had described Kunti Kamara as someone “of medium height, rather dark skinned, aged 20/25 years, in uniform and carrying a pistol”. The defense attorney added that RSK had to identify Kunti Kamara for the first time during his confrontation with the accused and that the latter had said she recognized him because of his skin color. Defence counsel asked RSK if she was sure she recognized Kunti Kamara in the dock, despite the evasive description she had given and the fact that no photographic plate was presented to her. RSK confirmed that she recognized Kunti Kamara in the dock.
The defence lawyer finally returned to the after-effects suffered by RSK as a result of the rapes and noted the absence of a gynaecological examination on the civil party in the file. RSK stated that she had consulted a doctor for a psychological examination only.
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Hearing of ThK as a witness called by the Public Prosecutor at the request of the civil parties
The Chairman invited ThK to introduce herself and she stated that she was born in 1989 and works as a farmer in Foya. She confirmed that she was RSK’s younger sister. Before giving the floor to ThK, the President pointed out that she had not yet been heard in this case and that, given her date of birth, she was very young at the time.
ThK began her spontaneous statement by recounting that one day during the war she went to church with her father while he was fasting. When they arrived at the church, ULIMO soldiers called them both. According to her, Kundi asked her father to remove all his clothes. ThK’s father asked what he had done to deserve such treatment and Kundi replied, “You have done nothing, but today you are not going to sleep at home because I will kill you. ThK explained that soldiers had boiled water and she thought it was to wash herself. ThK begged the soldiers to leave her father alone, but they refused. They filled a glass with hot water and asked her father to drink. According to ThK, this is how her father died.
ThK said that after his father died, people were called to dispose of the body. When they dumped his father’s body, his brother fled to Guinea.
The Court questions ThK:
On questioning, ThK confirmed that she knew DN and that he worked at the Borma Mission church. She also confirmed that she had seen DN with her father. However, she stated that she did not know how DN had died. When asked whether DN was present when her father died, ThK said that DN was killed before her father.
The President then asked ThK whether, as the newspaper article in the file seemed to indicate, three people had been killed at the church. ThK replied that she had returned home after her father’s death and confirmed that she was alone when he was killed.
On questioning, she said she did not flee into the bush with her mother and sister when they took refuge there. ThK said that she had stayed in Foya with her family for some time after her father’s death, and then they fled together to Guinea.
When asked about the rape of her sister RSK, ThK said that when they killed her father, the ULIMO soldiers said they were going to rape her sister. On questioning, she confirmed that her sister told her what happened to her. When asked about her flight to Guinea, ThK explained that she fled with her whole family in 2004 and returned in 2007. The President indicated that it was most likely the years 1994-1997 and that ThK did not seem to have a good knowledge of numbers and years. Upon questioning, ThK confirmed that when he returned to Liberia, the war was over.
ThK then stated that her family was suffering, as were many other families in Liberia, and asked the Court to help them. She explained that because of the war, she had been prevented from going to school because her school had closed. She added that after her father died, her brother decided that he would not return to Liberia.
The President then indicated that if the date of birth given by ThK was correct, she was 5 years old at the time of the events. ThK stated that she was not 5 years old, but about 15 years old. She said that her papers were kept by her late father. The defence lawyer intervened and pointed out the problems of witness identification in the trial, of which the President said he was aware.
When asked about her age difference with her sister RSK, ThK said that someone told them that there was not a big gap between them.
The prosecution questions ThK:
When asked about the facts concerning her, ThK said that ULIMO soldiers had forced her to thresh the rice and take it to the bush. The lawyer for the civil parties recalled that RSK had mentioned that her sister had been forced to carry loads. On questioning, ThK said she had four sisters and did not remember being forced to carry loads. According to the lawyer for the civil parties, RSK’s statement may have been directed at another of her sisters.
When asked about her memories of the time of the events, ThK explained that she was not able to remember everything. She said that she remembered exactly what happened to her father because he did everything for her and her family.
Prosecution questions ThK:
When asked about Kundi’s involvement in her father’s death, ThK stated that Kundi had taken boiling water and ordered the soldiers to hold her father. On questioning, she confirmed that the soldiers were under Kundi’s authority.
The General Counsel then asked ThK if the man in the box said anything to her. ThK confirmed that she thought it was Kundi.
The defence had no questions.
Defence counsel pointed out to the court that RSK had not mentioned the death of his father in the presence or on the orders of Kundi. The President confirmed that the murder of TKo was not part of the charges against the accused.
Hearing of Amal Hachet, psychologist in Paris, expert CA Paris, as expert summoned by the Public Prosecutor
The President invited expert psychologist Amal Hachet to present the findings of her psychological expertise on RSK on 13 May 2019.
Amal Hachet first explained that the examination had been carried out in a specific context of urgency. The expert had indeed spoken to RSK at short notice, as she had to return to Liberia the day after the order was issued. The expert added that RSK was suffering from gastroenteritis due to the change of climate, environment and travel, and was quite distressed. According to the expert, this is important because the interview, which lasted two hours, was interrupted several times because of RSK’s health condition. The expert added that it had not been possible to use an interpreter due to the short time available and stated that she was fluent in English and sensitive to language variations. According to the expert, the interview went well, except for a few complicated moments that required clarification of certain elements of RSK’s story through additional questions or drawings.
The expert gave a general assessment of RSK’s speech, hearing and comprehension, indicating that she had not identified any pathological elements, disorders or deficiencies in this area. In terms of memory, the expert identified hypermnesia, i.e. the fact that RSK is focused on a period of her history which she can recall in great detail. The expert indicated that hypermnesia was part of the post-traumatic symptomatology. She explained that one can find oneself in a situation of repression or amnesia, or conversely, in a situation of hypermnesia when the memory is very solicited. She also noted a general problem with temporal orientation.
The expert went on to say that when she met RSK, the latter was 41 years old and that the events went back a very long time, since she placed them between late 1993 and late 1994, when she was about 15 years old. According to the expert, the first event in RSK’s nightmarish story was the murder of her father, who was allegedly drowned in boiling water. The expert indicated that RSK was very attached to her father and that, apart from the memory of the murder, she kept an image of her father playing and laughing with her.
After the murder of her father, RSK fled with her family and was confronted with other scenes. The expert said that during her flight, RSK was forced to witness scenes of killing, torture and cannibalism. RSK recalled three executions, including two people who were murdered with axes to the chest and had their hearts extracted to be eaten, and one man who was decapitated. According to the expert, these scenes are part of RSK’s journey, the beginning of which she places at the end of December 1993 and the beginning of January 1994, despite her difficulty in remembering the exact time.
On the facts concerning RSK, the expert indicated that she was raped, allegedly by two of the accused’s bodyguards, over several days. RSK recalled that she asked the accused to spare her and to prevent his bodyguards from raping her, but he did not do so. According to the expert, RSK’s story then became more complicated and she was more focused on what happened to the other girls, including one of her sisters, whom she talked about a lot. In addition to the rapes, RSK was also subjected to forced labour.
The expert then stated that RSK had told that she could hear the screams of girls being raped at that time. She referred to the particular case of EFNS, whom she referred to as her sister despite the fact that she was not related to her. According to RSK’s account, her sister had suffered even worse atrocities, as she had been tied to a bed by her rapist. RSK explained that she had taken advantage of the rapists’ absence to bring her sister food, care for her and wash her. The expert reported that she had tried to clarify whether it was EFNS or someone else and RSK replied that she was talking about her sister and that she had not heard from her.
The expert went on to talk about RSK’s life before the incident, which she described as happy. She was in school and doing a lot of things. According to the expert, there was a break in this life because of the murder of her father and the other events she denounced, such as the rapes and torture she witnessed. After these events, RSK went to Guinea to try to rebuild her life. She met her future husband and trained to become a nurse’s aide. RSK had three children with her husband, who died of Ebola. With regard to her romantic and marital relationship, RSK stated that she loved her husband, but told the expert that she had difficulties with sex because she could not stand being touched. The expert pointed out in this respect that RSK was still a virgin when she was raped and that the rapes took place in the context of the war that had cost her father his life.
The expert referred to the debilitating stomach pains suffered by RSK as a result of these traumatic events, noting that she had had extensive medical follow-up. The expert considered that it was possible that the traumatic events experienced by RSK had caused her lack of sexual desire. RSK explained to the expert that she had remained alone since the death of her husband and had not wished to have any further relationships.
The expert noted a tendency for RSK to somatise and to have difficulty in expressing his anxieties, even verbally. RSK told the expert that she had received light psychological treatment from professionals from Médecins sans Frontières and other NGOs after the events. According to the expert, RSK mentioned sleep disorders and nightmares where she relived the same scene. The expert noted that there was a certain time lag, since RSK had taken control of her life since the events. She has completed training, started working and started a family. The expert underlined the evolution towards life, resilience and reconstruction of RSK, who at the same time seems to remain blocked or “stuck” on this period, “as if there was a freeze frame on this period of her life which could not be erased”. RSK also told the expert that she felt the need to tell her children about her experiences.
The expert noted a fairly high impact, specifying that, in principle, the experts do not give a rate in this type of expertise. The expert repeated that RSK was in something irreversible, which was out of step with the fact that she had taken control of her life. She explained that there were in a way two parallel paths: “the one of the adolescent who never grew up and the one of the woman she became and who continued to live”.
The expert noted RSK’s courage in making the effort to undergo the expert examination when she was not feeling well. According to the expert, RSK was very reassured to be heard about what she had suffered and felt that this procedure could be successful. The expert finally specified that RSK had a normal intelligence and that she was not in exaggeration, since she had focused more on what happened to the other girls.
Court questions Amal Hachet:
The President noted that RSK had not mentioned his father’s murder at his first hearing, but then briefly mentioned it to the expert, which the expert confirmed. The Chairperson then clarified that EFNS was a friend of RSK and later became his sister-in-law.
The President questioned Amal Hachet on her expert report, which mentions hypermnesia and a spatial-temporal difficulty. The President asked the expert if it was not contradictory to focus on details and at the same time to be confused about the rest. The expert explained that it was not contradictory and that both elements are found in extremely painful events. She indicated that in case of shock, the cognitive and memory faculties are impacted and added that hypermnesia impacts the facts themselves and not the dates.
When asked about the differences between wartime and “classic” rapes, Amal Hachet explained that collective events amplify the traumatic aspect. According to her, on a collective scale, not only does the psychic element collapse, but the environment is also impacted, including others. However, it is easier to get out of a scene when the presence of others and the environment have not been impacted, because those around us provide help and support that will gradually restore the fundamental feelings that keep us going. The expert added that the suffering of the other girls had created empathy in RSK, which had led her to repress her own suffering and take control of her life, in order to protect others. The President considered this to be a defence mechanism, which the expert confirmed.
The President then asked Amal Hachet how RSK had managed to rebuild her life, including starting a family and getting married, even though she was allegedly raped several times as a teenager. The expert responded that her resilience allowed her to regain control of her life. She added that RSK was able to do this on the surface, but not on the substance. When asked whether RSK had been living alone since her husband’s death, the expert replied that she had only reported what RSK had said.
On questioning, the expert indicated that RSK did not seem to her to be exaggerating and that she had been very clear about the respondent’s participation, specifying that he was there, but that he had not intervened. With regard to the problem of age, the expert explained that it was a problem specific to the African continent as dates and ages were not as important as in the West. She added that it was not a memory problem, but a cultural fact.
On questioning, the expert confirmed that she had noted neither a pathological way of describing reality nor an exaggeration of speech nor an exaltation by RSK. The expert added that she had not sensed any desire on the part of RSK to deliver a message that had been dictated to her. On the contrary, RSK answered the questions and developed her answers only at the request of the expert. Amal Hachet added that she felt that RSK was touched by what she was saying and did not want to describe it.
When asked about the psychological consequences of the lack of access to justice for survivors of war crimes, Amal Hachet explained that the aspect of recognition is very important because it allows victims to put into reality what they have experienced. Recognition could help them to get out of the confusion or sense of unreality that they feel.
When asked by a juror about the age at which a person can accurately recall events, the expert indicated that it depends on the severity of the event. She said that memories of rape can be recovered as early as the age of two. The problem, she said, is that a child who does not have access to language cannot tell the story, hence the use of drawing. The story then becomes accurate with access to language.
The prosecution questions Amal Hachet:
When asked about the lack of psychological follow-up at RSK and the impact this could have, Amal Hachet explained that without care, there is no consolidation. In other words, the disorders persist and can become chronic. She added that care was very important and that its value was all the more important if it occurred in parallel with legal recognition. According to the expert, being recognized has therapeutic value.
The lawyer for the civil parties then asked the expert if RSK’s choice of life – as a care assistant – could be associated with what she had experienced. Amal Hachet replied that she had not indicated this in her report, but that this choice of profession was not a coincidence. She explained that RSK has gone in the direction of reparation and help, whereas other victims choose to repeat what they have suffered. She added that repairing the other is a way of repairing oneself.
Prosecution questions Amal Hachet:
The General Counsel asked Amal Hachet whether RSK had expressed any fear for the victims. The expert responded that RSK had expressed a fear of reprisals.
The defence had no questions.
Hearing of EFNS as a civil party
Prior to hearing EFNS, counsel for the civil parties indicated that EFNS had sent her a report of a gynecological examination conducted in Liberia. The report was made part of the pleadings.
The President then invited EFNS to take the stand. Upon questioning, EFNS indicated that she was born in 1973 and that she worked as a farmer in Lofa. Before allowing her to speak, the President clarified that EFNS was being heard before the court as a civil party and that she was previously heard by the Liberian police on April 30, 2019.
EFNS explained that she was in a village in 1993 and learned of the arrival of the ULIMOs in Foya. She said that she fled into the bush with her child, her mother and sister, and her sister’s son. According to her, the village chief also fled into the bush with his family. She added that her father and RK had gone in different directions. EFNS then said that they were pulling weeds in the rice plantations when they found them. She said that the ULIMOs had eaten the meal they had prepared for the farm workers and taken all their crops. EFNS said that all she had left was the clothes she was wearing.
EFNS then stated that when she arrived in town, a large soldier asked her if she had any family. She replied that she had just arrived in Foya. A neighbour arrived and said that they were killing people in Foya. EFNS explained that a lady then took them to her house and that she had started working for ULIMO. Every morning she had to go to work in the rice fields. EFNS said that her palms were bloody when she was threshing rice.
While sitting in her home, a man asked her what was going on and she told him that she was in pain. The man offered her to come and live with him and EFNS said that she did not want to be his wife. The man insisted, but EFNS refused because she was afraid of suffering. The man told her that he did not want to hurt her or her family, so EFNS agreed and took her family to the man’s house. EFNS said that when they took 10 civilians to the border, only 4 returned. According to her, when the civilians said they were tired, they did not return. The man told her that every time the soldiers came to take her family, he would give her a document with her name and the names of the requisitioned civilians. That way, if a family member disappeared, the soldier would be held responsible.
EFNS went on to explain that there was a “Black Friday” in Foya where everyone had to go to a meeting in front of the old police station. According to her, they called young men and women to line up and they chose who they wanted to take. EFNS said that this was the day she lost her uncle. She added that because of the rain, they threw an RPG and all the civilians scattered. EFNS explained that she hid in a house and saw her uncle with his hands behind his back. She added that the people she was hiding with told her that they were ULIMO soldiers. She said that she never saw her uncle again.
EFNS continued her account by stating that one day she went to the market with food. While she was on the hill, she saw civilians with wheelbarrows and thighs moving inside. EFNS explained that a soldier named Mami Wata came up to her holding arms and said, “Take, take. EFNS said she refused and went back to her aunt’s house crying. Her aunt informed her that she had lost one of her sons. There were twelve students and no one survived.
Finally, EFNS explained that one day AG told her that he was afraid and was going to leave on a mission. According to EFNS, AG left and that same night, ULIMO soldiers came to her house to find him. They asked, “Where is that dog Krahn? When no one answered, they knocked on the door to try to get into the house. EFNS said it heard the voices of Kundi and Black Devil. She said the commanders stayed outside while the bodyguards ransacked the house. When they did not find AG, they left.
EFNS then explained that they had returned the next day and that there were three of them: B, Kamara and the commander. They again asked where AG was. EFNS replied that she did not know and they left. Following this event, EFNS thought that if she stayed, they would kill her. So she decided to flee to her village. She stayed there for a few days, but the ULIMO soldiers, including B, came looking for her, accusing her of being AG’s wife, and took her back to town. EFNS said that she was taken to B’s house. She said that he tied her up while she was naked, spread her thighs and took a knife and stuck it into her vagina despite her pleas. Before breaking down in tears in court, EFNS cried out “I am damaged”.
[EFNS broke down and burst into tears. The hearing was interrupted.]
When the hearing resumed, the civil parties’ lawyer explained to the President that EFNS was outside the room and that she was in a state of shock. She added that it was not possible for her to continue the hearing.
