[10/28/2022] Day 15 : The civil party pleads
The President began this new day of hearings by recalling that the Court was seized by the Investigating Chamber of the Paris Court of Appeal for (i) acts of complicity in crimes against humanity concerning the acts of rape of which RSK and EFNS were victims, (ii) simple and aggravated acts of torture and barbarism concerning DN, SFC, KT, LSM and JTC and finally (iii) acts of complicity in aggravated acts of torture and barbarism to the detriment of RSK and EFNS.
The President noted that the first questions of the referral contained a material error in the time period referred to and proposed to standardize the dating, which was accepted by the parties. The President also proposed to divide question number 6, which concerned acts against a vulnerable person, into two questions: one concerning the commission of acts of torture and barbarism to the detriment of KT and the other concerning the apparent vulnerability of the victim and the perpetrators’ knowledge of that vulnerability.
In the absence of any remarks by the parties, the President declared that the other issues to be decided by the Court were in order and did not require any change.
Plea of the prosecution :
The lawyer for the civil parties began her argument by recalling the content of the two texts on the basis of which the accused appeared before the Court. The first is the New York Convention, of which the civil parties’ lawyer read out part of the preamble and the definition of the term “torture”. The second text concerns crimes against humanity punishable under the French Criminal Code. The lawyer for the civil parties stated that these two texts described the most serious crimes, but also spoke of humanity, the human family, dignity and justice.
The lawyer for the civil parties then spoke about universal jurisdiction and recalled that Colonel Reiland had spoken about it at length. She also recalled the words of Alain Werner who highlighted the political difficulties that accompany this form of justice and those of John Stewart who stressed its importance for victims in a context of impunity and stated that human rights have no borders. According to the civil parties’ lawyer, universal jurisdiction also has its detractors, who argue that the State arrogates to itself the jurisdiction to judge crimes that have no connection with its territory. The civil parties’ lawyer acknowledged that the links between France and Liberia, apart from Paris-Saint-Germain, were not very obvious. According to her, universal jurisdiction does not require historical or cultural links between the country where the acts were committed and the country where they are being tried. It is simply a matter of giving French courts the possibility of judging “the most serious crimes that affect the entire international community,” regardless of historical ties with the country in question. The lawyer for the civil parties recalled that universal jurisdiction had made it possible to judge the genocide of the Tutsis, that it made it possible to judge Kunti Kamara today and will make it possible to judge Syrian torturers, Rohingya genocidaires and mercenaries involved in the war in Ukraine tomorrow. According to the lawyer for the civil parties, universal jurisdiction is all the more important in Liberia, because impunity in this country remains total. There is no possibility of judging war criminals and impunity prevents the country from rebuilding itself. The lawyer for the civil parties added that Massa Washington had spoken the loudest about it, insisting that it gave hope to Liberians.
The lawyer for the civil parties then turned to what she considered to be the heart of the matter, namely the victims’ word. She stated that the facts were certainly old and that the passage of time was dizzying, but that the age of the facts did not detract from their atrocity and had not appeased the victims. She added that the trial was based on the word of the victims, because in the fury of war, other evidence was scarce, and stressed that testimonial evidence would also disappear given the low life expectancy in Liberia. Counsel for the parties stated that this was the essence of the documentation and statement-taking work done by Civitas Maxima and the GJRP. She recalled that these two organizations had set up a protocol for collecting the victims’ statements with a full transcription of their words and specified that an assessment of the witness’s credibility was made from the outset. The lawyer for the civil parties also insisted that the investigators appreciated the willingness of witnesses and victims without ever forcing them to testify. She explained that the OCLCH investigators then took over by conducting neighbourhood inquiries, going out to find and hear witnesses in the field. She emphasized the great expertise of OCLCH investigators in the techniques of collecting testimony, developed in particular through the experience of the Rwandan genocide.
The lawyer for the civil parties then made a few observations on the investigation, which was widely criticized by the defense, in particular because of the absence of DNA evidence and the excavation of corpses. She recalled that in the context of an international letter rogatory, the investigating judge and the French investigators can only conduct hearings. For the rest, they provide technical support to the local authorities, who have very little or no resources. According to the lawyer for the civil parties, it is necessary to be realistic insofar as Liberia is a country in disrepair, if not one of the poorest countries in the world, which has 18 prosecutors in total, of which only one is in Lofa. She recalled that the local authorities obviously did not even have the equipment to take photographs. The civil party lawyer also recalled that there were no records or archives, which made the investigation all the more difficult. In her view, this did not mean that it was impossible to complete an investigation, but rather that the investigating judge could not be blamed for failing to carry out unfeasible investigative acts. The lawyer for the civil parties then recalled that investigative acts had to be necessary and useful for the determination of the truth and that the defence could make requests for acts provided that they were feasible. She noted that the defence had not made any such request. In her view, carrying out a forensic examination of human remains buried in a hurry 28 years ago seemed complicated in the absence of seals. She added that excavations were often traumatic for the victims’ relatives and should only be done as a last resort. The civil party lawyer questioned the usefulness of digging KT’s grave in Foya Dundu when FG, NS, TK, FP and EzP all said that the person killed by Kundi is KT, FG’s sister and NS’s wife. The same applies to the defence suggestion that DN’s body should have been dug up, especially as MN explained that her husband was probably buried under the Palava Hut, the place where the community meets to settle disputes. The civil party lawyer wondered what obtaining a DNA profile would have added to the proceedings.
The civil parties’ lawyer then went back to the word of the victims and witnesses insofar as this trial was based solely on testimonial evidence. She stated that no witness or civil party had exaggerated the facts or inveighed against Kunti Kamara in a spirit of revenge. On the contrary, they were always measured and differentiated, pointing out for example that some commanders had more moderate behavior. According to the civil parties’ lawyer, they only reported facts and did not generalize. Counsel for the Prosecution stated that she hoped that the Court had noticed the restraint shown by the witnesses and parties.
With regard to the contradictions and differences in the various testimonies, the lawyer for the civil parties admitted that there were some, and fortunately in her opinion, because this proved that the accounts were not teleguided. She added that memory was imperfect, all the more so 28 years after the events which took place in a context of bloody war. She recalled in this regard the testimony of the psychologist Amal Hachet, who indicated that the most traumatized people had different memory mechanisms, such as hypermnesia, flashbacks or amnesia, which influence their relationship to time and their memory and cognitive faculties. The lawyer for the civil parties stated that people do not remember dates, but details, such as screams, noises or a scene they were forced to witness. You remember a song, but not necessarily how old you were. According to the lawyer for the civil parties, it is necessary to take into account the contradictions and to re-situate the accounts in their traumatic context.
Counsel for the Civil Parties then addressed the issue of the recognition of the accused on the photographic boards and the fact that some witnesses and civil parties only recognised him when confronted. Counsel for the civil parties stated that during the confrontations, the accused had already confirmed that he was indeed CO Kundi and that he was a commander in Foya in 1993-1994. She added that if everyone had recognised him in the photo, the problem of guided testimony would have been raised. She recalled what the expert Christian Ballouard had explained, namely that a photograph does not capture everything and that it is sometimes easier to recognise someone thanks to their attitude or body language. In this regard, the civil parties’ lawyer stated that all the witnesses and victims had formally recognized the accused after being confronted with him. She invited the court to take into consideration the fact that CO Kundi was a ULIMO rebel who terrorized the population so that some witnesses stated that they did not look him in the eye and avoided confronting him. She also recalled that most of the witnesses and prosecutors gave a consistent physical description of the accused before they were shown photographs, including that he was short and thin, with bowed legs and dark skin.
With regard to the relationship with time, the lawyer for the civil parties recalled the importance of taking into consideration the reality of Liberia at that time, a country in which there was no civil status register. Most Liberians do not know their date of birth, some do not know how to find their way in time. In this regard, the civil party lawyer referred to the testimony of FG who said that he could tell by the position of the sun. She added that ages had no meaning for them, citing the example of the school where people of all ages, including adults, were in the same class. According to the civil parties’ lawyer, dates are not time markers for them. We have to realize that all the logical markers with which we are familiar are different, and sometimes even non-existent, for them.
The Civil Party lawyer then focused on the first civil war and its impact on Lofa County. Referring to the previous day’s debate about which faction committed the most abuses, Civil Party Counsel stated that she did not think it was necessary to compare and quantify the crimes committed by the different factions. According to her, it is not a question of arbitrating this war, but rather of assessing what happened in Foya in 1993-1994. She recalled that Lofa was a strategic area, as this county shares a border with Guinea where ULIMO could receive support from its allies. It was therefore a question of moving up the border from Zorzor to Voinjama to the district of Foya, where the Solomba crossing made it possible to obtain arms and food. The lawyer for the civil parties added that Lofa was a rich and fertile province (cocoa, coffee, palm oil). The invasion of Lofa by ULIMO was thus explained by both political and economic reasons.
The lawyer for the civil parties then stated that the ordeal of the inhabitants of Foya began in July 1993, when ULIMO troops captured the town and began to rule the region. In this regard, the lawyer for the civil parties recalled the content of the MSF report, in which it is written that the region became a “no man’s land” where NGOs no longer wanted to go. According to the lawyer for the civil parties, the victims and witnesses came to tell of a tenth of the horrors experienced by the inhabitants of Foya in 1993-1994, so systematic were the crimes.
Turning first to the looting, the civil parties’ lawyer said that everything had been looted and that starvation was a very real consequence of the looting. People had no choice but to eat grass to try to feed themselves. JTC also referred to the fact that his brother had died of starvation. According to the civil party’s lawyer, when people did not die a violent death, they died of hunger, malnutrition or diseases related to the lack of access to food and water. She referred to the images of children in very severe stages of malnutrition seen by the court and said: “The reality of the looting is also that”.
The lawyer for the civil parties then referred to the crime of enslavement, recalling the testimony of Thierry Paulet, who explained the very complex relationship that Liberia had with slavery. She indicated that the Swiss authorities’ report described slavery as an integral exploitation of the population. According to the lawyer for the civil parties, slavery consists of a dehumanisation, a chosification of men, who are no longer considered as human beings. In Foya, this was materialized by the contempt of civilians who were accused of having collaborated with the enemy in order to reduce them to slavery. The lawyer for the civil parties added that the ULIMO soldiers were guided by the “pay yourself” or “help yourself” principle and appropriated all the property of the civilians, including their homes.
According to the lawyer for the civil parties, women were at the intersection between the crimes of pillaging and enslavement, since they were considered both objects to be pillaged and sex slaves. Women were gifts from commanders to their soldiers, giving them permission to rape them. Rapes were committed on women of all ages. In this regard, the civil parties’ lawyer recalled the testimony of AN, who recounted being raped as a young girl, and that of Massa Washington, who spoke of the rape of an elderly woman. According to the civil parties’ lawyer, the fate of women was atrocious during this war.
The civil party’s lawyer then returned to the issue of the enlistment of child soldiers, although this crime was not part of the charges against the accused. She stated that Kunti Kamara was the only one who contested the use of child soldiers, while his friend Abraham Towah, a ULIMO soldier, was 12 or 13 years old at the time. The civil parties’ lawyer recalled the words of Alieu Kosiah, who explained that it was normal to see child soldiers, even going so far as to say that it was “business as usual. She also referred to the cover photo of James Fasuekoi’s book, which shows a child with a larger AK47, and to the interview with Abu Bakr Kamara, a colonel in the ULIMO death squads, who said that child soldiers were their spearheads because they were not afraid to die.
Under the heading of systematic crimes committed during the war, counsel for the civil parties then referred to the killings, stating that 10% of the Liberian population had been decimated as a result of the civil war. She recalled the testimony of Patrick Robert, who said that naked bodies were strewn along the roadside. Counsel for the prosecution stated that there was not a witness or victim who had not lost at least one of their relatives. She cited AN and MN, who lost a father and husband (DN) respectively, FG and NS who lost a sister and wife (KT) respectively, TFT who lost his brother during the TT hunt, Massa Washington who lost his brother, LSM who lost his cousins, one of whom was used as a scarecrow at the ULIMO checkpoint, and RSK and ThK who lost their fathers in horrific circumstances. The lawyer for the civil parties referred to the happy reunion between MN and AN, of which she was unaware, as well as the shocking testimony of ThK, stating that she had understood during the hearing that the young girl had seen her father being tortured and killed with her own eyes. The lawyer for the civil parties stated that it was important to let the victims speak and to draw out the threads of their memory.
The civil parties’ lawyer then stated that the civilian population lived in a permanent state of terror and that the most unspeakable crime was cannibalism. She returned to the hallucinatory answer of Alieu Kosiah, who explained that it was impossible for the heart of DN to have been eaten raw by comparing it to the heart of a goat. According to the lawyer for the civil parties, these acts of cannibalism are very difficult to understand and it is unclear whether they are part of a cultural ritual or acts of madness. She added that she saw it as a way of terrorizing people, desecrating their bodies and entrails, and said that cannibalism was the most terrible manifestation of what the war in Liberia had been like.
The counsel for the Civil Parties then referred to the administration in Foya, which included various measures such as a curfew, checkpoints and the S2 office. She stated that the chain of command within ULIMO was not clear, but that it had been possible to determine the following hierarchy in the Lofa (in order of importance): Pepper & Salt who led the operations of the Lofa County conquest, Alieu Kosiah the H&H of Lofa County, based in Voinjama, Deku the ground commander, then at the same level Kundi, Ugly Boy, Mami Wata, Blackie. They were all under the high command of Dombuyah, Kromah and Fofana. According to the civil parties’ lawyer, the high command did not do much to prevent the outburst of violence by the commanders based in Lofa, if one thinks in particular of the Black Friday episode, mentioned so many times by the witnesses and civil parties. This event was so resounding that (i) Pepper & Salt had to hide what was going on, including burning the bodies or burying them in a more discreet manner, (ii) an inquiry was called for by the international community, and (iii) Alhaji Kromah apologised to the population at the end of the first war in an attempt to win votes. According to the counsel for the civil parties, the accused cannot be followed when he claims that General Dombuyah would never have allowed his men to commit exactions on the civilian population. One need only recall the testimony of Massa Washington who stated that she had written an article on the ULIMO headquarters where she had seen ropes made of human intestines at checkpoints and heads on stakes, and mentioned the threats made against her by General Dombuyah. According to the lawyer for the civil parties, the hierarchy knew perfectly well what was going on and did not punish the abuses; it committed them itself.
On Kundi, the civil parties’ lawyer said that when she came out of the trial, she felt she knew nothing more about him than what was already in the file. She said that Kundi had said little and that what she retained was “his denials ad nauseam“.
With regard to the distinction between Foya City and Foya District, counsel for the civil parties stressed the belated nature of this explanation, given by the accused ten days after the opening of the proceedings on questioning by his counsel. It is not disputed that Kundi was a battlefront commander and could go to the front and then return to Foya. According to the understanding of the civil parties’ lawyer, there was no determined front line since the bush was infested with Taylor’s rebels. She stated that she was convinced that Kunti Kamara had lived in Foya as several witnesses had placed him in that setting, stating that he had a house in Foya near the old market. The civil party’s lawyer added that in her view, the distinction between Foya City and Foya District was a belated attempt by the accused to escape the charges against him.
The lawyer for the civil parties then quickly moved on to the conspiracy argument, assuming that the court had already heard enough about it. She simply recalled that HB was Mandingo and that the ethnic aspect was a discourse specific to Kunti Kamara and Alieu Kosiah, who were the only two to speak of this hatred against the Mandingos. According to the civil parties’ lawyer, Kunti Kamara and Alieu Kosiah have kept the same frame of reference as 28 years ago.
On the taking of Foya, the civil party lawyer said that all the witnesses and civil parties told the same story, namely that they fled into the bush and were then hunted down by ULIMO and brought back to Foya where meetings were held and they were treated like slaves. According to the civil parties’ lawyer, everyone described this system of total predation. Since ULIMO could not afford to pay its soldiers, they could loot everything, take everything, and sell everything.
Regarding the victims, the civil party lawyer began by referring to the testimony of LSM, who was accused of being an NPFL rebel and tortured using the tabé method with six other men, who were then killed and thrown into a well. LSM was dragged along the ground for several metres and saw another man have his head smashed with a stone. More than twenty years after the events, he still has after-effects, since he has not recovered the use of his arm. The civil party’s lawyer stressed that the fact that LSM’s account was corroborated in every respect by the testimony of SS, who also recognised Kunti Kamara on a photographic plate. She said that in an attempt to challenge the credibility of their accounts, the defense questioned the existence of the well, even though it had been located by the Swiss authorities. The civil parties’ lawyer repeated what she had already explained, namely that the civilians were forced to condemn the well because of the smell of rotting bodies emanating from it.
With regard to the forced marches and enslavement, the civil parties’ lawyer recalled that all the witnesses and civil parties spoke about it, including Alieu Kosiah. Everyone knows about it, with the exception of Kunti Kamara, who admitted to knowing Solomba. The lawyer for the civil parties then invited the Court to imagine the state of terror in which the civilians found themselves during these forced marches, since they had understood that if they did not reach their destination, they would be killed. The lawyer for the civil parties specified that the commanders organized both “small marches” for the transport of coffee or cocoa, and more important marches, in particular the march of the electric generator. Regarding the march of the generator, the civil parties’ lawyer recalled the existence of two concordant testimonies, namely that of JTC as the victim and that of LSM as the executioner. According to the civil parties’ lawyer, their accounts are very precise. She recalled that JTC had even named the villages that had to be crossed to reach Solomba.
The prosecutor then spoke briefly about JTC, explaining that he had overcome his trauma through a religious conversion and was now calmed and driven by a duty to testify, aware that life expectancy is low in Liberia and that speech will disappear. The only trauma he may not have overcome is the atrocities suffered by M, taken by Ugly Boy as a sex slave.
As for SFC, another victim of forced marches, he showed great resilience according to the civil parties’ lawyer and was appointed chief of his village. The civil parties’ lawyer was keen to recall the statements made by SFC, who thanked the Court for the arrangements made, pointing out that the acts committed during the war were minimized in Liberia.
The counsel for the civil parties then referred to the murder of KT and expressed her disappointment that the court had not been able to hear NS. According to the parties’ counsel, KT’s murder sent shockwaves through the Foya district. EP reportedly even tried to complain about it to the S2 office or the ground commander. The counsel for the parties said she was struck by the fact that the witnesses recounted what had happened before the murder, namely the burial of the child and the $100 donated by Kundi in favour of the family. She invited the court to imagine how KT must have felt just before Kundi executed her, when she was in agony and had just lost her child. The prosecutor then referred to the testimony of FG, who has to live with his guilt and grief.
She added that the other murder in the case concerned the facts relating to DN. She referred to the presence of only one direct witness while stressing the fact that it was rare to have more than one direct witness for such facts because of the limited life expectancy and the fear of reprisals. In this regard, the civil parties’ counsel recalled the existence of veterans’ networks and the testimony of LSM who recounted being violently assaulted. The civil party’s lawyer stated that in addition to JTC, there was also a whole series of indirect witnesses, as well as the newspapers of the time, to document the murder of DN. Even if the motive is unclear, the fact remains that DN was arrested, beaten, tabbed and executed. It was his daughter AN and his wife MN who recounted these events in court. According to the lawyer for the civil parties, the court heard the pain of these two women during the hearing, pointing out that AN was certainly more modest, but everyone had nevertheless understood the disastrous consequences that the murder of her father had on her life.
Civil party counsel then referred to the other women in the case, namely EFNS and RSK, who represent women who were reduced to sexual slaves. According to the civil party’s lawyer, it is clear from the various testimonies that women offered themselves to the least atrocious soldiers in order to obtain some form of protection. The lawyer for the civil parties recalled the use of numerous euphemisms (e.g.: “take for wife”, “girlfriend”, etc.) which, according to her, conceal permanent rapes and demonstrate that shame and stigma are still very present. She also recalled the testimony of EFNS who said she was stripped naked, tied up and taken by a soldier, before collapsing in the courtroom. At the same time, Kundi is portrayed as the one who approves, laughs and lets it happen. The civil party lawyer read back EFNS’s words to the court that she did not want to return to the courtroom or see Kundi again, as it was too hard for her, and asked for justice to be done. The civil party lawyer then spoke of RSK’s wonderful journey to become a nurse and to erase her own story to speak out for others. Today, it is by caring for others that RSK manages to repair herself, according to the lawyer for the civil parties. In addition to these two deeply moving stories, there is AN’s story and the story of M told by JTC.
The lawyer for the civil parties stated that all this suffering was useless and that she did not see how such terror could serve the military objectives of ULIMO. According to her, Kunti Kamara is in denial when he says that he is innocent, that he saw nothing, did nothing, and that everyone is lying. Even Alieu Kosiah admits that the war was horrible and that there was looting, rape, murder and child soldiers. The lawyer for the civil parties stressed the discrepancy between Kunti Kamara’s account and reality and said she had the impression that the accused was still in the war and had kept the same speech of the ULIMO soldier he was 28 years ago. She added that he showed no empathy towards the victims and always brought everything back to his own suffering. The civil party’s lawyer regretted the absence of sincere words from the mouth of Kunti Kamara, who could have at least acknowledged that this war had been terrible for all Liberians. In this regard, she recalled the findings of Dr. Zagury, who indicated that the accused was reconstructing himself and showing himself to be in denial of his past, assuming that the charges against him were confirmed.
The civil parties’ lawyer concluded her plea by indicating that she had pleaded for nine victims and for Civitas Maxima, which had done a remarkable job. She said that without these NGOs nothing would be possible, and that the three-week trial was a huge step for the victims, as it had given them hope. The civil party lawyer ended by quoting TFT, who said that fear had changed sides, and Massa Washington who said, “This trial gives hope to Liberians. We hope that one day there will be justice in our own land. Until then, we are grateful.