One-day judges and mass crimes

OPINION. The oral proceedings of  French trials surprised our columnist Alain Werner, director of Civitas Maxima, during the trial of Liberian warlord Kunti Kamara, which was just held in Paris.

Appearing before a French “Cour d’assises” is a fascinating dive into the principle of orality, with a court that includes both a layman’s jury and professional judges, as was the case in Geneva until a popular vote which abolished this 18th century institution in May 2009.

Last month in Paris, I awaited with a certain curiosity the trial of Kunti Kamara, former commander of the Liberian Ulimo rebels, now 47 years old. This rebel faction, like all the other actors in the conflict, has been accused of diving the population of Lofa into terror during a civil war that left at least 250,000 dead.

I know the case well. Kunti Kamara fought in the same armed faction, at the same time and in the same part of Liberia as another commander, Alieu Kosiah, who was convicted in Switzerland for war crimes by the Federal Criminal Court (TPF) in 2021 – the appeal trial is scheduled for January 2023 in Bellinzona. The organization I lead, Civitas Maxima, which celebrated its 10th anniversary this year, is a direct actor in both: the trial of Alieu Kosiah in Switzerland and in that of Kunti Kamara in France.

In Bellinzona, as a lawyer and director of Civitas Maxima, I represent, together with other colleagues, direct victims of the crimes allegedly committed by Mr. Kosiah, who are plaintiffs in the proceedings. In Paris, Civitas Maxima was itself a plaintiff alongside Liberian victims, and therefore heard as such through me.

In Switzerland in 2021, victims and witnesses summoned by both the defense and the prosecutors came from Liberia to testify before federal judges, the latter also having access to dozens of federal files containing hearings and documents accumulated across years of investigation of the case in Bern.

In Paris, on the contrary, the jurors and assessor judges must know nothing about the facts of the case before hearing the first witnesses  presented to them. Thus, the only information that will be available to them is that which is given orally by witnesses, experts or victims called to the stand, or from the reading of the investigation file by lawyers or prosecutors.

The challenge was therefore formidable: in such a system of pure orality where absolutely everything must be said or read in court, how could it be possible, in less than four weeks, to make jurors – ordinary citizens who had become judges for a day, without any prior knowledge of either the case or of Liberia – understand facts committed during an African civil war that took place almost 30 years ago, 5,000 kilometers from their home?

The oath of French jurors is governed by the Code of Criminal Procedure, which requires them to: “(…) betray neither the interests of the accused, nor those of the society accusing them, nor those of the victim (…) remember that the accused is presumed innocent and that doubt must benefit them; decide on the basis of the charges and the means of defense, according to their conscience and intimate conviction, with the impartiality and firmness befitting a person of probity and freedom(…).”

Twenty-seven Liberian and French witnesses and experts, including historians, journalists, doctors, psychologists, psychiatrists, social workers, investigators and ten plaintiffs – including Civitas Maxima – appeared to relay their experience and truth to the judges and jurors, facing each other eye to eye.

In France, this overriding principle of oral proceedings is embodied in the configuration of the physical space of the courtroom. When testifying in a French “Cour d’assises”, judges and jurors sit in front of the speaker at a distance of less than 2 metres. The speaker must not  read from a script, the statement must be spontaneous, and questions are only asked after this statement, during which no one may interrupt the speaker, but maintains strict scrutiny of them.

To deliberate and give their conviction, judges and jurors only use the notes they have taken during the debates, without any other part of the file, to which they have never had access. The written record is left in the hands of the clerk by the presiding judge during deliberations, with the jurors and judges entering the jury room “without delay” after the accused’s last words and leaving only after they have made their decision to acquit or convict on each charge.

Some of the torture and crimes against humanity alleged in the Kunti Kamara trial were witnessed directly by only one person, without the possibility, due to the context and the passage of time, of digging up the bodies or conducting DNA analysis, through which the defense forcefully argued for the acquittal of its client.

In this  scenario, a conviction is formed by listening to and evaluating two irreconcilable versions of the facts of the case presented on the stand: Mr. Kunti Kamara’s version on the one hand, and that of the alleged victims from Liberia on the other.

In order to decide where they thought the truth lays, the judges and jurors were also provided with background information, including newspaper articles from the time, videos and the testimony of witnesses and experts. Given the number of questions asked during these hearings, particularly by the jurors, there was undoubtedly a real desire on their part to understand the dynamics of the civil war in Liberia, but also those of the mass crimes allegedly committed.

One will recall the dumbstruck look of some of these jurors when Daniel Zagury, a renowned psychiatrist who has testified in multiple criminal trials, including those of Rwandan genocidaires, spoke of a “historical parenthesis”, explaining that, in theory, an ordinary person could commit atrocities in a certain historical context, and then no longer present any dangerous behaviour if they  lived somewhere else, in a different context.

The expert psychologist Amal Hachet seemed to attract just as much attention when she stated that, according to her, a victim in a post-traumatic state could remember very precise events that took place even a long time ago (“hypermnesia”) all whilst not remembering at all, for example, at what time of the year these same events occurred (“amnesia”).

After sixteen days of intense hearings, the judges and jurors withdrew from the courtroom with only their notebooks and their thoughts.

More than eight hours of deliberation later, they rendered a guilty verdict of Kunti Kamara on all the alleged facts and sentenced him to life imprisonment.

The defense immediately appealed this conviction, and judges and juries will in turn hear their own conclusions in Paris on these same facts, probably in 2024. The same question of how to deal with such events will arise once again, especially for the new “judges for a day”.

The article first appeared on Le Temps as part of a Civitas Maxima/Le Temps collaboration, on the 11th of December, 2022.
Image Credit: © JEAN-MARC BOUJU / AP

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