[10/31/2022] Day 16 : The prosecution and the defence plead
The morning was devoted to the closing arguments of the two general counsels and the afternoon to the pleadings of the defense lawyers.
The first public prosecutor said she was speaking after three weeks of a very dense trial and complex stories that were difficult to hear given the horror of the crimes committed. She reminded the jurors of their duty to judge a man according to their innermost conviction. The general counsel proposed to return to the facts and the role of Kunti Kamara in ULIMO before addressing the crimes committed, their legal qualification and finally the proposed sentence.
The general counsel began by explaining the reason why Kunti Kamara was being tried in France and the concept of universal jurisdiction. She briefly reviewed the international criminal justice movement and the jurisdiction of the French authorities in this case, which is based on Kunti Kamara’s presence on French territory for two years. She explained that the rule of universal jurisdiction applies only to the most serious crimes, namely crimes against humanity and acts of torture, and is an indispensable tool in the fight against impunity. The General Counsel stated that France should not be a haven for torturers. According to her, it is not a question of substituting for the justice of a country but of compensating for the absence of judicial response, whether it is due to a lack of will or a lack of capacity of a given country. In this regard, she recalled the impunity of crimes committed in Liberia. Indeed, despite the non-exhaustive list of perpetrators established by the Truth and Reconciliation Commission (TRC), on which Kunti Kamara’s name does not appear, former rebel leaders continue to be active in politics, thus forcing the victims to live next to their executioners. According to the general counsel, this situation is indicative of the impunity that reigns in Liberia.
The General Counsel then recalled John Stewart’s words about the desire of victims to be recognized as such and to obtain justice. She added that trials like the Kunti Kamara trial were the only way for Liberian victims to get justice since no international tribunal had been established. She explained that the trial of Kunti Kamara was the first trial in France regarding crimes committed in Liberia and that other jurisdictions have also heard the case, such as the Netherlands, the United States and Switzerland. She said the Swiss case against Alieu Kosiah was of particular importance because it concerned the same period and, for some, the same facts as those alleged against Kunti Kamara. She added that the case against Kunti Kamara originated in the Swiss case, as Alieu Kosiah called Kundi as a defense witness.
The general counsel then returned to the reasons why Kunti Kamara was being tried thirty years after the facts. She explained that the French justice system had learned of the facts in 2018 in the context of the trial of Alieu Kosiah, and that this had become clearer in 2019 following the filing of a complaint by Civitas Maxima. The general counsel recalled that the defense had been surprised by this late filing of a complaint and said that it was enough to understand the situation in Liberia at the time, namely a country devastated after the civil war that caused the exodus of one and a half million people. She added that witnesses and civil parties were discouraged by the culture of impunity and cited the failed efforts of the TRC, whose recommendations were not followed. She also cited MN and SFC for citing the high costs of filing a complaint in Liberia.
The public prosecutor went on to blame the accused himself for the 30-year delay in bringing the case to trial, since he had constantly concealed his path within ULIMO. He did everything to escape his responsibilities, first in Guinea, then in the Netherlands, which he left for Belgium before going to France. The general counsel recalled that France was not his last stop, since he was arrested the day before his departure for Lisbon. She said that Kunti Kamara had never intended to go to court, which he had not hidden. The General Counsel also praised the investigative work of Civitas Maxima and stressed the importance of the role of non-governmental organizations in such cases.
The general counsel also reminded the jurors that they were not the first to deal with the complex concepts of crimes against humanity. She explained that since the creation of the National Crimes Against Humanity Unit, six trials have been held in relation to the crimes in Rwanda. She added that these hearings have always raised the same pitfalls, but that the work of justice has always been achieved.
The Attorney General recognized that it was not easy to judge Kunti Kamara for crimes committed 5,000 kilometers from Paris. In this regard, she stated that it was not possible to approach the case in the same way as for a classic crime. Indeed, according to her, although the French procedure is applicable, it is not possible to expect the same type of evidence. To illustrate her point, the general counsel recalled that at the time of the events, the government of Liberia was failing. In particular, she cited the lack of birth dates and civil registries and the statements of psychologist Amal Hachet, who said that the relationship to time and dates was different, especially in a country in the midst of a civil war, which explained why witnesses and civil parties were unable to give their ages. She added that there were no death certificates, no doctors, no hospitals and no police, so there was very little physical evidence. The General Counsel stated that to demand material evidence as the defense did was “to deny reality and to erect impunity for the perpetrators under the pretext that without material evidence it is impossible to judge.
Regarding testimonial evidence, the General Counsel stated that it is not sub-evidence and that it remains the central evidence in cases of crimes against humanity, especially when it is linked to contextual elements. She made it clear that she was not suggesting that testimony was perfect evidence, as some witnesses may lie and contradict themselves. It was not necessary to expect perfectly consistent statements, but rather to take into account the chaotic context of the war and the trauma suffered by the witnesses and victims. These elements disturb the memory and the perception of time, but these difficulties should not disqualify the testimonies according to the general counsel. On the contrary, it is advisable to cross-check the testimonies and compare them, using discernment to distinguish approximations – understandable because of the time that has passed – from lies. Regarding the argument that Civitas Maxima manipulated or bought witnesses, the General Counsel emphasized the lack of evidence produced by Kunti Kamara and stated that the Public Prosecutor’s Office trusted the Court to judge the reality of this alleged manipulation.
The General Counsel then briefly mentioned the difficulties of identifying and locating witnesses, in addition to impunity in Liberia and the fear of denouncing crimes and their perpetrators. In this regard, she paid tribute to the witnesses and civil parties who had the courage to come forward.
Although the testimonies remain the central element of the case, the general counsel explained that they had been consolidated by the investigations. For example, she recalled that Kunti Kamara had been heard ten times, including confrontations, and that 44 witnesses had been heard. She added that the situation had been put back into perspective in the presence of the accused’s counsel, who did not express any criticism. She also mentioned the psychological expertises and stated that all the investigative work consisted of adding more evidence to the file. She also said that the situation in Lofa had been less documented because few international observers had gone there, partly because they had been prevented from doing so by the armed groups. Despite this, the General Counsel recalled that the Court had press articles, NGO reports, photographs, the work of the TRC, and statements from senior ULIMO officers. In short, all of these elements, according to the General Counsel, made it possible to compare the testimonies and to establish their probative value so that the Court could render its verdict.
Addressing the jurors, the general counsel explained that it was soon time for them to retire in order to decide on the guilt of Kunti Kamara. She stated that it will be for each of them to form an inner conviction and reminded them that an inner conviction means overcoming a doubt. She explained that the judicial doubt was the questioning that allowed them to advance collegially in the analysis of the facts and that it should not prevent them from making a decision. She reminded them that their decision was rendered in the name of the French people, whom they represented, and that it was the most noble of decisions, all the more so in cases of crimes against humanity and acts of torture. She specified that it was a matter of guaranteeing the rule of law and recognizing the dignity of the victims. Regarding the role of the Public Prosecutor’s Office, she recalled that it has no political or diplomatic mission, nor instructions, but that it defends the general interest. Thus, she explained that the Public Prosecutor’s Office was there to enlighten the jurors regarding the responsibility of Kunti Kamara and that its mission was not to support the implausible, but to weigh the elements and draw conclusions. She recalled that this approach had led the general counsel to request dismissals for certain offenses, which were confirmed by the investigating judge and the court.
The second general counsel then took the floor and returned to the context of the facts of which Kunti Kamara is accused. She said that three weeks earlier, the court had plunged into Liberia, a country with a singular and forgotten history that few people knew about. She explained that Liberia is a country in West Africa, bordered by the Atlantic Ocean on the one hand and Guinea, Sierra Leone and Côte d’Ivoire on the other. She then recalled that the country has two seasons: a rainy season (May to October) and a dry season. She added that Liberia is one of the poorest and least developed countries in the world, with a life expectancy of 60 years, and that it was only 40 years at the time of the events. The general counsel then explained that the population was composed of 16 ethnic groups (including the Mandingo and the Kissi), to which were added the freed slaves. In terms of Liberia’s history, she said that it was one of the few countries in Africa that had never been colonized and that Liberia was created by freed former slaves. According to the general counsel, the administration of the country was built on the personal interests of the decision makers.
The General Counsel then addressed the civil wars, explaining that they were rooted in the coup d’état of Samuel Doe, who was responsible for the assassination of President Tolbert and the public murder of 13 leaders. The first civil war began in December 1989 with the invasion of the NPFL from Côte d’Ivoire. The general counsel explained that the terror was quickly claimed and invited the court to recall the circumstances of the assassination of Samuel Doe, who was tortured and whose body was paraded in the streets of Monrovia.
The General Counsel described the major stages of the Liberian civil wars, which she described as complex, while reassuring the jurors that they did not need to know everything. She began by explaining that following the NPFL invasion, the country became mired in a struggle between armed groups. In response, other groups were created, including ULIMO, which initially brought together Krahn and Mandingo fighters. The General Counsel declined to detail all the steps and asked the Court to bear in mind that by March 1994, ULIMO had split into ULIMO-K, led by Kromah of the Mandingo ethnic group, and ULIMO-J, led by Johnson of the Krahn ethnic group. The General Counsel noted that the civil war ended in 1997 with the election of Charles Taylor and the emergence of a new rebel group, LURD. The second civil war lasted from 1997 to 2003 and ended with the resignation of Charles Taylor under international pressure.
The Attorney General then briefly returned to the Kissi conspiracy theory put forward by Kunti Kamara to explain the charges against him. She recalled the statements of Thierry Paulais, according to which ethnic groups had been used by the leaders of the armed groups to mobilize the population, and specified that civilians were considered allies or enemies according to their ethnicity. She emphasized that in reality, the objective of each was to gain access to power and to appropriate the country and its resources, in particular natural resources, infrastructure, women and children.
The General Counsel recalled that it had been established, including by the TRC report, that all armed groups had committed crimes against civilians. With respect to the defense’s attempts to highlight the number of abuses committed by the NPFL in comparison to ULIMO, the General Counsel found this hierarchy irrelevant, emphasizing that each armed group recruited civilians. Some civilians joined the group voluntarily, but others were forced to join, particularly children. The general counsel also recalled that the hierarchy within the armed groups did not prevent local autonomy under the authority of local commanders. She added that soldiers were not paid and that the expression “pay yourself” left the door open to all abuses committed against civilians. She then indicated that the civil war ended in 2003 and that the reconstruction of the country is still incomplete. In this regard, she said that the TRC had counted between 250,000 and 300,000 deaths and 1 million displaced persons for a total population of 2 million. She said that the development record was critical and that the ruins of the old Foya power plant, which was never rebuilt, symbolized this backlog.
Before examining Kunti Kamara’s position in ULIMO, the General Counsel wished to elaborate on the Lofa region. She described it as a rural county of just under 10,000 km2 in which the majority of towns were without running water and electricity. She added that the inhabitants were farmers and that the county was populated by many communities, including the Kissi, Gbandi and Mandingo. The general counsel indicated that at the time, the Lofa region was larger and divided into six districts with a main town, villages and bush. She noted that the town of Foya was on the edge of the county in the district of the same name and was more than 13 hours’ drive from the capital, Monrovia.
The General Counsel then explained the strategic nature of the town of Foya due to its proximity to the border with Guinea and Sierra Leone, before discussing the conquest of Lofa County by ULIMO. She said that initially the county was in the hands of the NPFL, until the arrival of a battalion led by Pepper & Salt. She cited veterans stationed in the area, including Jungle Jabbah and Alieu Kosiah. The attorney general said the steps of ULIMO’s conquest of Lofa County were documented and that Foya was likely conquered in July 1993. From that date on, ULIMO was the only armed group controlling the district. On the question of whether the inhabitants of Foya were able to distinguish between the NPFL and ULIMO periods, the general counsel noted that all the witnesses and civil parties had answered in the affirmative, and that some had said that under the NPFL it was possible to live without life being “pleasant.
With regard to local authorities, the General Counsel explained that there were none from the time ULIMO took control of the region until at least late 1994. The village chiefs had become spokespersons since the government and police had fled. The general counsel stressed that it had been clear during the trial that the people of Foya were not NPFL rebels, but ordinary civilians, and that they had never taken up arms or even considered doing so. She added that this did not prevent them from being identified as NPFL sympathizers and designated as enemies, and recalled that the terrible fate of the civilian population had been explained by the witnesses and civil parties.
The General Counsel then spoke about the tools of absolute control put in place by ULIMO, namely the curfew (violation of which led to death and which made it possible to ascertain the location of the inhabitants in order to go directly to their homes to pick them up for the forced marches), the S-2 office (set up in the former police station and an obligatory place of passage for the census and registration of the inhabitants), the bloody checkpoints where heads were placed on stakes, the meetings aimed at gathering the population or the incessant tracking in the bush. The general counsel recalled FG’s statement that “they were there to destroy us.
According to the General Counsel, these tools reflect a modus operandi, namely terror as a mode of governance. She also cited the gathering of inhabitants, the appropriation of houses, the forced provision of food, the systematic looting, the exploitation of inhabitants, women reduced to sexual and domestic slaves, men forced to carry heavy loads, public executions, acts of torture and cannibalism, the use of the tabé method, the ripping out of human hearts, the placing of corpses in wheelbarrows and the obligation to buy pieces. The general counsel recalled that the barrow episode was reported by many witnesses in the same way, and was also documented in the TRC report and the press at the time. According to the General Counsel, these abuses are tools of terror used by all armed groups. She pointed out that Lofa County, occupied by ULIMO, ranked third in terms of the number of victims according to the TRC report. She added that the systematic and widespread nature of the abuses was mentioned by Alain Werner in the Kosiah case and stated that the victims were mainly civilians. The General Counsel invited the Court to consider, on the one hand, the horror and massive nature of the crimes committed, and on the other hand, the hegemonic authority of ULIMO, which exercised quasi-regal functions in Lofa between 1993 and 1995.
The General Counsel went on to explain that the mission of the Court was not to judge the first civil war, but to judge a man on his individual responsibility. She specified that this man was Kunti Kamara or CO Kundi and that there was no other.
Regarding the accused’s position in ULIMO, the General Counsel indicated that in Liberia, commanders were “C.O.” (Commanding Officer) and that it was possible to become one at a very young age, particularly because of the low life expectancy at the time. (Commanding Officer) and that it was possible to become one at a very young age, particularly because of the low life expectancy at the time. Regarding the commanders of Foya, she cited the names given by the witnesses and civil parties, namely CO Deku, Fine Boy, Ugly Boy (or Saah Chuey), Mami Wata, and the accused, CO Kundi. She added Alieu Kosiah aka Physical Cash, noting that he appeared to hold a higher rank than CO Kundi. Under the orders of the above commanders were fighters and bodyguards. The General Counsel then described the chain of command from the national to the local level, according to the information available: Kromah, Dombuyah (Chief of Staff), Pepper & Salt (Lofa County Chief), Deku and the other commanders within Lofa County. She said that while Deku appeared to have authority, each commander retained authority over his men. According to the general counsel, beyond this formal circuit, commanders in the field had freedom of action, which led to massive abuses against the people of Lofa.
The general counsel then turned to Kunti Kamara’s position within ULIMO at the time of the events. First, she explained that, according to the statements of the accused and former members of ULIMO, everyone knew Kundi, both at the bottom and the top of the ladder. The attorney general also referred to the statements of witnesses, who explained that they recognized the commanders because they were in uniform and armed. She added that in 2008, JS mentioned Kundi’s name as the commander in Foya before the TRC. She said all of this evidence suggests that Kunti Kamara voluntarily joined ULIMO and rose through the ranks to become a colonel. The Attorney General then highlighted the many grey areas on the concrete attributions of the accused, while noting two constants. The first is that he was based in Foya for most of the time. In this regard, the public prosecutor recalled that the accused had acknowledged that he had contributed to the conquest of Foya and participated in the tracking down of TT. Moreover, Alieu Kosiah stated that Kunti Kamara was in Foya 80% of the time and reaffirmed that he had seen him there. Finally, several witnesses and civil parties saw him in the city of Foya and some even stated that he was domiciled there. The general counsel added that the birth of Kunti Kamara’s daughter in Foya in 1995 constituted an additional temporal indication. Without disputing the fact that the accused had to be absent from the city of Foya at times, the general counsel maintained that he was based there.
As for the second constant, the general counsel stated that Kunti Kamara was not a rank and file soldier but a commander recognized by all and that his rank was that of battlefield commander. She recalled that Kunti Kamara was not accusing anyone of lying on this point. Although he remained confused, he commanded men and said he himself had two platoons under his command, equivalent to 88 men, as well as bodyguards, which was confirmed by LSM and Alieu Kosiah. In addition, Kunti Kamara spoke of his power to punish, explaining that he could beat his soldiers with sticks. In view of all these elements, the public prosecutor considered that the accused had the following position within ULIMO: a local commander with a certain responsibility, invested with the mission of bringing men into combat and controlling Foya. As such, he had some authority over his men and civilians, which was confirmed by witnesses who testified that they had not seen Kunti Kamara receive orders.
Acts committed to the detriment of DN
The General Counsel then addressed the responsibility of Kunti Kamara in relation to the killing of DN. In this regard, she recalled that it was impossible to date the events, but that DN was indeed executed, probably in the first few months following the occupation of ULIMO. The General Counsel also cited the press article mentioning the assassination of DN. She then returned to the testimony of JTC, who was heard three times and confronted with the accused and DN’s widow. She added that JTC’s testimony was precise and detailed, consistent with his previous statements. The General Counsel explained that the “killing” of DN was rooted in the destruction by ULIMO of the Borma Mission and in DN’s discussion with white humanitarians that ULIMO was responsible for the damage caused. Although the identity of the NGO is unknown, the meeting is established insofar as a police officer was present during this interview. The defense questioned DN’s alleged statements, but the public defender stated that it was not in DN’s character to lie and that he may have believed that the aid workers were coming to free the people of Foya.
In addition, the General Counsel recalled that JTC had always reported the same sequence of events, as well as the active participation of Kunti Kamara in the killing of DN, even before the latter’s arrest. The General Counsel explained that Kunti Kamara had participated in the armed arrest of DN, then in his transport to the police station, and had helped to tie him up using the tabé method. She added that he himself had kicked DN while he was on the ground and still restrained. She finally mentioned the killing on the airfield and the jubilation of the commanders “Try ULIMO, your heart”. The General Counsel then recalled the statements of JTC, who described the axing by Ugly Boy and the extraction of DN’s heart. As for Kunti Kamara, he had stayed nearby and was gloating. Finally, the General Counsel recalled the “cannibalistic continuation” of the events since all the commanders, including Kunti Kamara, ate a piece of DN’s heart in front of Ugy Boy’s house.
The General Counsel concluded that even if Kunti Kamara was not the author of the ax, he participated as an active author in the killing of DN, which would not have been completed without the participation of each commander. The General Counsel explained that the strength of JTC’s testimony was that he had been questioned for two years without changing his statements. She referred to the few discrepancies, such as the time at the police station and the length of time DN was arrested. In this respect, she recalled that the facts had taken place 29 years ago and that the re-enactment had made it possible to see that JTC was indeed in the vicinity and that it was possible to see what was going on, contrary to what the defense had tried to argue, and also the feasibility of the various stages. With regard to the other elements in the file, the General Counsel mentioned the testimony of DFB, who was not present at the scene, but saw DN’s body on the airfield and participated in burying it. She recalled that DFB’s details of the rotting state of the body and his observations of the body were consistent with the circumstances described by JTC and revealed the indignity of the fate of DN’s body. Finally, the General Counsel recounted the testimony of DN’s widow and daughter, who came to express their pain and bring back memories, without being direct witnesses. She recalled that Kunti Kamara’s only reaction to these testimonies was to point out the request for assistance made by MN, which he considered to be financially motivated. The General Counsel stated that the barbaric act committed against DN was a founding element and an unequivocal message of terror: anyone who defied ULIMO had to pay the price. The General Counsel regretted the absence of other direct witnesses, recalling the difficulties in finding witnesses, particularly because of the situation in the country and the impunity that reigns there. She recalled that the Swiss courts had convicted Alieu Kosiah based on the testimony of JTC, which they considered credible. She then suggested that the court broaden the perspective to take into account that the practice of tabé and heart extraction had been carried out by other armed factions and documented by war photographers and NGOs. In addition, both RSK and LSM claimed to have seen Ugly Boy engage in the practice, which lends credence to the scene. She concluded that Kunti Kamara actively and decisively participated in the killing of DN and invited the Court to find him guilty of these facts.
Facts committed to the detriment of KT
The general counsel continued with the second set of facts, namely the killing of KT in Foya Dundu in 1993. She recalled that the testimony of four direct witnesses had been read or heard: FG, KT’s brother; NS, her husband; TK, the former village chief; and FP, a neighbor. The statements of these four witnesses were put to the test of reality during situational rehearsals. According to the general counsel, a consistent chronology emerged from the various testimonies.
The attorney general explained that Foya Dundu was located five kilometers from Foya and was a hamlet consisting of a few mud houses. She added that KT, of Kissi ethnicity, was married to NS and was very ill. The general counsel then briefly recalled the facts: the death of KT’s sick child, the funeral organized the next day and the arrival of Kunti Kamara and his men. First, Kunti Kamara gave some money to the village chief before leaving. Then he returned and asked his men to take KT out of the house before shooting him in the head with a G3 assault rifle. The blow was so violent that KT’s brain exploded. After this traumatic execution, Kunti Kamara ordered the body to be buried and burned. The accused then made death threats, as reported by FG, who then hid behind a banana tree before fleeing.
The General Counsel specified that the re-situation had made it possible to locate the place where FG was and to attest that he could indeed be a witness to the scene. She then recalled that both FG and FP had formally recognized Kunti Kamara as the author of the crime. Finally, the General Counsel described the constants regarding the involvement of Kunti Kamara: the extreme violence and gratuitousness of the killing, as well as the authority of Kunti Kamara over his soldiers. In this regard, she recalled that both FG and FP stated that Kunti Kamara was the leader and that it was not possible to oppose him. The General Counsel stated that the accused had a central and personal role. She then recalled the testimony of TK, who indicated that he had nothing to blame Kunti Kamara for, except for the death of KT. The General Counsel then returned to the few discrepancies in the testimonies, in particular the way in which KT was pulled out of the house and her pleas. In this respect, she recalled that the chain of events had been very rapid and that one had to be lenient on the reconstruction of traumatic memories, in particular for a husband and a brother. The General Counsel concluded by asking the Court to retain the guilt of the accused.
Facts committed to the detriment of JTC and FCS
The General Counsel then spoke about the forced marches imposed on JTC and SFC in 1993 in and around Foya. She explained that ULIMO made the looting of the region a priority under the expression “pay yourself. She pointed out that numerous testimonies and other evidence had been collected in this regard, notably by the TRC, the press and NGOs, despite the fact that Kunti Kamara had always denied the facts. She recalled that former ULIMO members (including Kwamex Fofana and Abraham Towah) confirmed the exploitation of civilians during these marches because of the scarcity of vehicles and also referred to the transportation of goods on the Makona River by pirogues. Similarly, many witnesses and civil parties described the organization of these marches by ULIMO according to the same modus operandi: the arrest of civilians at any time, either at their homes during the curfew or when they were moving around town, and then the obligation to transport heavy loads to the Guinean border via the town of Solomba. They all dated these events to the early months of the ULIMO occupation (second half of 1993) during the rainy season, when the state of the roads made it impossible to use vehicles. They all said that ULIMO soldiers were guarding the marches and that civilians were at risk of being forced to carry loads on the way home as well. They all described the terror of the marches, with beatings with rifle butts or tree branches to those who complained of being tired, regular deaths from exhaustion or beatings, and summary executions. In addition to these abuses, they all spoke of threats made by soldiers, including the phrase “Till Go,” which Kunti Kamara said she knew and that it was used on the front lines to motivate soldiers. According to the general counsel, the use of these expressions during forced marches illustrates the confusion between the military front and the other front, that of the villages and their inhabitants, considered as enemies. The General Counsel recalled that the requisitioned civilians marched for several hours, without food or water, terrorized and starving. They were obviously not paid and had no possibility of escaping, unless they fled into the bush.
With regard to Kunti Kamara’s indictment, the general counsel began by referring to the facts concerning JTC. The latter recounted two marches organized by ULIMO for which he implicated Kundi. The first concerned the looting of the power plant in the town of Foya and the transport of the generator, which was mentioned by several witnesses. All stated that the generator was looted in the first few months after ULIMO took Foya. The general counsel stated that there was no disagreement about which armed group was responsible for the looting and that it was ULIMO. According to the general counsel, JTC was specific about the location of the generator, the number of civilians commandeered, and the commanders involved, including CO Deku, Alieu Kosiah, Ugly Boy, Mami Wata and Kundi. JTC meticulously described how the generator parts were transported and how they were lifted. He detailed the various stages of the walk to Solomba and estimated the total travel time at 6 to 7 hours. He also described the unloading of the parts at the border and the transport across the river by dugout canoes.
According to the General Counsel, the remand conducted in April 2019 attested to the credibility of JTC’s statements. In addition, JTC was consistent about implicating Kunti Kamara. He said he saw him throughout the transport, including at the beginning near the power plant, and stated that he was leading soldiers and going back and forth exercising his prerogatives as commander. He also said he saw him threaten civilians and said he did not discern a hierarchy among the ULIMO commanders, which led the Swiss courts to acquit Alieu Kosiah on the charge of organizing the march. The general counsel recalled the existence of other testimonies, such as that of TFT, who stated that he witnessed the looting of the power plant and saw Kundi, and that of LSM, who supervised the march and heard that Kundi was present.
JTC also implicated Kunti Kamara in connection with a second march to bring food to Solomba. He explained that he was arrested in the middle of the day with twenty other civilians to carry out this march. He spoke of being beaten by civilians when they did not move fast enough and estimated that he carried a 60 kg load for several kilometers. According to the public prosecutor, JTC has always maintained that the transport was organized solely in the interest of Kundi, who was leading the march alone.
The general counsel then referred to the facts concerning SFC and indicated that SFC had implicated Kunti Kamara for the Borma Mission generator march, as well as for another march concerning the transport of foodstuffs. SFC reported that he was arrested at his home for participating in the Borma Mission Hospital’s electric generator walk. He described how the generator was dismantled and loaded onto a trailer, and how it was transported by about 50 civilians to the Guinean border. According to the General Counsel, SFC distinguished the different stages of the march by indicating the house in which the civilians had slept and the place where the trailer broke down.
The general counsel recalled that the defense had questioned the feasibility of such a transport in view of the difficulties it presented, and stated that this was the nature of slavery. The general counsel then recalled the threatening chants mentioned by SFC, as well as the beatings with rifle butts and mango branches that Kundi and his soldiers inflicted on him along the way. SFC stated that Kundi instilled fear in him. As a reminder of the facts about DN, SFC recalled that Kundi threatened to rip out his heart. SFC also recalled the orders given by Kundi to his soldiers upon their arrival in Solomba to unload the pieces and organize the crossing of the river on the pirogues. He said that the crossing was a privilege of the commanders and soldiers.
The general counsel then referred to the second march for which SFC had implicated Kunti Kamara. This was a coffee and palm oil transport operation led by CO Kundi, whose role SFC described in detail. According to SFC, Kundi made threats such as “If you get tired, I kill you.
The General Counsel indicated that Kunti Kamara denied these facts, but several witnesses and civil parties gave a physical description that matched the accused. The Public Prosecutor emphasized the high degree of accuracy of all the statements, which were confirmed as consistent by the re-situations. She indicated that there was no desire for revenge or exaggeration in the testimonies – which was also confirmed by the psychologist – since the witnesses and civil parties incriminated Kunti Kamara to the extent of his participation, distinguishing the marches organized by other commanders. The general counsel invited the court to rely on her feelings about the various witnesses and stated that despite their strength, SFC and JTC still had physical and psychological scars.
The general counsel stated that it was clear from the various testimonies and situational explanations that Kunti Kamara was directly and personally involved in the organization of the two marches concerning JTC and the two marches concerning SFC, including the violence against SFC. She therefore asked the court to retain the guilt of the accused.
Facts committed to the detriment of LSM
The General Counsel then returned to the facts of LSM. According to the General Counsel, the documentation as a whole showed that torture, including the tabé method, was practiced by all armed groups. In her view, LSM’s statements in this regard are consistent. He explained that he was arrested by ULIMO soldiers when he tried to flee into the bush and was accused of being an NPFL member. He was then taken back to Foya with other civilians and tied up using the tabé method. He stated that he was the only one to protest and that he was dragged along the ground for several meters. He still has physical scars, as he has not regained full use of his arm. He also explained that he witnessed the murder of a civilian, who was killed with a stone. He always implicated Alieu Kosiah and Kunti Kamara, and formally recognized the latter on a photographic plate. According to the public prosecutor, LSM has always maintained that Kunti Kamara was CO Kundi and had inflicted these injuries. However, he is uncertain about who shot him on the ground, but said that Kundi had ordered his soldiers to do so. He was always very clear about the hierarchical authority of Kosiah and Kundi, who he said were the highest ranking officers, which is why he considered them co-perpetrators. The general counsel also recalled that these facts had been confirmed by SS and that the only discrepancies between LSM’s and SS’s testimonies were on the number of civilians arrested and why LSM was spared. SS testified that she was in a house from which she witnessed the scene. She said she saw Kundi order his soldiers to beat the civilians into submission and drag LSM to the ground. In addition, SS formally recognized the accused on a photographic plate.
The attorney general said the defense will argue that LSM has varied his statements, which she said is possible 29 years after the fact. The attorney general said it is possible that LSM does not remember the substance of the exchanges between Alieu Kosiah and Kunti Kamara or the exact moment he was released from his bonds. In the eyes of the General Counsel, however, these are peripheral issues, and LSM has been consistent about Kunti Kamara. He was reluctant to implicate Fine Boy, but it is known that Fine Boy is in Liberia and that LSM has already been assaulted as a result of his testimony in Switzerland. With regard to the stabbing, LSM has always stated that he was stabbed in the back, as evidenced by his scar. He said he did not know whether Kunti Kamara or Alieu Kosiah inflicted the wound and only reported what he had said. The general counsel urged the court to keep in mind that Kunti Kamara was not accused of stabbing LSM, but of dragging him to the ground several meters. She said the defense may try to argue that Kundi was under Kosiah’s command, which is not true because there was no hierarchy between them and Kundi was perfectly autonomous. The General Counsel recalled in this respect that all the witnesses heard agreed that Kundi was independent, which was confirmed by the accused himself since he stated that he was never under the orders of Alieu Kosiah. Furthermore, the general counsel recalled that Kundi had left ULIMO with a higher rank than Alieu Kosiah.
In light of LSM’s consistent statements, confirmed by SS, the Advocate General urged the court to convict Kunti Kamara for his participation in the torture of LSM.
Acts committed to the detriment of RSK and EFNS
The General Counsel addressed the final set of facts, which relates to complicity in the rapes committed against RSK and EFNS. The General Counsel recalled that the rape of women and girls was systematically practiced by all rebel groups. Women were reduced to domestic and sexual slaves. The General Counsel stated that sexual offenses were among the crimes identified by the TRC and that 47% of those heard by the TRC were women who reported rape (including incestuous rape under duress) that led to the destruction of women, families, and entire communities. According to the General Counsel, the use of weapons during the rapes confirmed the desire to destroy the women, since their injuries prevented them from having children. The general counsel added that the women were treated as sexual objects, to be used by the soldiers as they saw fit. She stated that this was attested to by many witnesses, including AN, who was raped in the bush at the age of 12, SFC’s niece, and JTC’s former partner M, and that it was in this context of widespread rape that the accounts of EFNS and RSK should be understood.
The General Counsel then insisted that the rapes committed on RSK and EFNS were not isolated events, but a sample of what the women experienced at the time. Contrary to what the accused alleges, the ULIMO troops were not under a strict command that strongly condemned rape, since the commanders themselves committed such atrocities.
The General Counsel then recalled that RSK and EFNS were two young girls at the time and had fled together into the bush to escape ULIMO. They were captured, but were given protection by a soldier, AG. According to the General Counsel, AG traded protection for sexual favors, which EFNS accepted to keep her family safe. Both women explained that AG fled after the ULIMO split, which ended their protection.
The General Counsel began by recounting the facts about EFNS, recalling that the court had heard her words, her cries, and her tears. EFNS first explained that she was targeted by Kundi and his men who could not find AG. Then she was captured by B, a soldier under the orders of CO Kundi. She described as best she could the sordid and inhumane rapes of which she was a victim, while naked and tied up using the tabé method. She spoke of the salt-sprinkled bayonet, her after-effects, her infertility and her still present trauma. The public prosecutor said EFNS was unable to finish her story because she was so overwhelmed by the violence and shock. She said she recognized Kundi at the hearing in the note she gave to her lawyer.
According to the General Counsel, it is also appropriate to refer to her first statements that were read during the hearing. EFNS explained that she managed to escape from B’s house naked. Her screams had gathered a group of people in the street, including B’s brother. Once outside, EFNS explained to B’s brother what had happened to her and Kundi approached to inquire about the situation. According to EFNS, Kundi’s only response was, “Oh, I thought I was called about something serious. She said that B’s brother had managed to get her released and explained that she was then kidnapped and raped until she fled to the bush where RSK treated her. According to EFNS, Kundi did not participate in the rapes, but allowed his subordinate to do so when he could have reacted as a superior. The general counsel also recalled that EFNS gave a corresponding physical description of the accused, namely a short man dressed in military fatigues. On the photographic board presented to her, she pointed to two photos, one of which depicted Kunti Kamara. The general counsel acknowledged that there had been no forensic examination of EFNS, but this was due to the absence of trained personnel at the time of the events. It is therefore necessary to be satisfied with the imperfect medical certificate, but which has the merit of existing and from which one cannot exclude that the after-effects from which EFNS suffers are related to the facts. According to the general counsel, there is no evidence to question the sincerity and credibility of EFNS, especially given the marginalization of women victims of rape in Liberia.
With regard to the facts of RSK, the General Counsel stated that RSK had been conspicuous by the consistency of her statements throughout the proceedings. The young woman explained that she learned about the capture of her friend EFNS after AG had left and tried to visit her. It was on this occasion that she was captured in turn by two of Kundi’s soldiers. She begged Kundi to come to her aid because he was an important leader, but all she got was a laugh and total indifference. She was dragged to the ground and raped in a nearby house. Afterwards, RSK explained that each of her visits to EFNS was a pretext for raping her and beating her with a rifle butt, which led her to flee to Guinea, leaving her friend EFNS in the hands of B. According to the general counsel, RSK placed these facts in a broader narrative, explaining that many women had suffered the same fate. The general counsel then recalled that RSK gave a description of Kunti Kamara: a commander, based in Foya, in his early 20s, in military dress and of average height. According to the general counsel, the defense will point out that Kundi is small in stature, but RSK’s assessment can be explained by the fact that she herself was not very tall at the time of the events, due to her young age, and may have been impressed by Kundi. The public prosecutor also pointed out that RSK had emotionally acknowledged Kunti Kamara at the hearing. She described the accused’s house, the nicknames given to him, and the songs sung by his soldiers in praise of him. The public prosecutor recalled that the credibility of RSK’s statements was underlined by the expert-psychologist Amal Hachet, who indicated that RSK’s account was very clear and that she did not show any signs of exaggeration. RSK was measured in what she said, making a clear distinction between the direct perpetrators and Kunti Kamara, who had not touched her, but had the ability to punish. The expert also indicated that RSK suffered from a significant post-traumatic syndrome and stressed that despite the great resilience she showed, she remained locked in this painful moment of her life. The General Counsel then acknowledged the absence of a forensic examination of RSK and noted that such an examination was irrelevant given the passage of time. Again, the General Counsel stated that RSK had no interest in giving false testimony because of the marginalization of Liberian women victims of rape, as Massa Washington explained at the hearing.
The General Counsel invited the Court to remember that EFNS and RSK have specifically and consistently implicated Kunti Kamara, and highlighted his position in the hierarchy and the fact that he took no action to stop or prevent the rapes. On the contrary, he showed indifference. The general counsel asked the court to find Kunti Kamara guilty of all the facts. She specified that it was not a question of condemning Kunti Kamara blindly, because a sorting process (“sieve of justice”) had been carried out beforehand and had resulted in the elimination of other crimes for which the accused had been implicated, for lack of sufficient evidence. According to the General Counsel, the Public Ministry must distinguish between the facts that are characterized and those that, although possible, are not considered sufficiently detailed or established.
Some of the defence’s arguments
The general counsel then made a point of returning to some of the arguments put forward by Kunti Kamara and his counsel. She began by recalling that Kunti Kamara had remained adamant throughout the proceedings, claiming his innocence and vigorously denying any form of exaction committed by ULIMO. In speaking about the civil war, he spoke of the fear of death, but denied the evidence when it came to the fate of civilians. According to the general counsel, Kunti Kamara was locked in denial of all the evidence. He denied the responsibility of ULIMO and himself in the commission of abuses against civilians. He gave the same answers regarding rapes, looting, murders, checkpoints, etc. He wanted the Court to believe that he was responsible for the crimes committed by ULIMO. He wanted the court to believe that he had lived through the first civil war in Liberia without having witnessed a single abuse committed against civilians. According to the general counsel, this denial can only raise questions about the credibility of the accused’s statements.
The General Counsel then returned to the virulent criticism formulated by the defense with regard to the investigation, in particular with regard to the conduct of the investigation and the collection of testimony. The General Counsel recalled that corroboration work had been carried out and indicated that in matters of crimes against humanity, it is appropriate to investigate in a different way, especially 30 years after the events. According to the General Counsel, it is necessary to be pragmatic, because the means of investigation are of no use without a crime scene and without seals. With regard to the facts committed against DN and KT, the defense made much of the lack of exhumation of the corpses. The General Counsel noted at the outset that the request for exhumation was made very late and that no such request had been made during the two years of the investigation. She added that these exhumations would not have allowed for the acquittal or conviction of Kunti Kamara, since it would not have been possible to find his DNA given the time that had elapsed. This would simply have confirmed the death of DN and KT, which would have been tantamount to questioning the word of a widow or a brother. The General Counsel relied on the testimony of Chief Warrant Officer Peruggia, who stated that he had never performed any exhumations during his 27 international trips. With regard to the exhumation of the body of KT’s child mentioned by the defense, the General Counsel wondered whether NS had invented a son. As for the body of DN, buried under the Palava Hut with other corpses, the excavation might have made it possible to find the electric cables with which he had been tied up. However, it would have been difficult to state with certainty that it was DN without his bones. According to the public prosecutor, there was no exhumation because it was not a question of proving the death of the victims, but of establishing the guilt of Kunti Kamara. The argument of the defense must therefore be dismissed.
Another argument by the defense was that the statements of the witnesses and civil parties were not probative because they did not know their dates of birth. According to the general counsel, for each person who was unable to give his or her precise age, the defense considered that it could neither be certain that this was the witness named nor verify the reality of the relationship with the accused. The general counsel stated that such a line of defense was to challenge the very existence of the witnesses and the value of their word, in defiance of the diligence of the French authorities in verifying their identity. She recalled that there was no civil registry in Liberia at the time and that the Liberians’ relationship to time was different from ours.
The general counsel returned to another widely debated point: the identification of the accused by the witnesses and the civil parties. She recalled that the defense had highlighted the fact that not all the witnesses had recognized him. The general counsel stressed that all had given similar physical descriptions of Kunti Kamara: short stature, bowed legs, slight squint, toothless jaw – which the expert Philippe Oudy also noted. On this last point, the public prosecutor recalled that Kunti Kamara himself thanked the court for the dental care he received in prison. Regarding the strabismus of the accused, the General Counsel left it to the Court to assess the photographic plate in the file. As for the witnesses who did not recognize him in the photo, the General Counsel explained that it was difficult to identify Kunti Kamara in the absence of non-verbal signs. She also emphasized the fact that some witnesses had not hesitated to say that they did not recognize him and that it was therefore not a question of recognition of convenience.
The third argument that the General Counsel wished to address concerned Kunti Kamara’s alleged absence from Foya at the time of the events. The General Counsel pointed out that there had been many examples to support the fact that the accused had lived in Foya and that there had been no confusion between the city and the district. She noted that the accused had invoked the existence of a front retreating to the border at Mendekoma only twice, although he had been heard about ten times. She also pointed out that no witness or civilian party mentioned fighting between ULIMO and other armed groups after the capture of Foya, and recalled that Alieu Kosiah stated that there was no front at Foya.
The last argument on which the lawyer focused was the thesis of a conspiracy, of which Kunti Kamara would be a victim. According to the general counsel, the accused wants to prove the fact that he was never incriminated before his name was revealed by Alieu Kosiah. However, this is false because in 2008, the name of CO Kundi was pronounced before the TRC. Kunti Kamara also relied on the absence of a complaint filed against him before 2018. According to the general counsel, the situation in Liberia and the costs of initiating proceedings made it illusory for victims to file a complaint. As for the motives behind the alleged conspiracy, Kunti Kamara repeated the arguments of Alieu Kosiah, according to the general counsel, namely financial considerations, the possibility of obtaining asylum in a Western country, and ethnic revenge. However, no witness or civil party has mentioned ethnic or community considerations. According to the general counsel, the majority of those interviewed were Kissis because they are the majority group in the Foya district. In addition, no witnesses or civil parties have applied for asylum. According to the general counsel, the only ones who lied in order to obtain asylum are Alieu Kosiah and Kunti Kamara. Regarding financial compensation, the general counsel said that no witness will receive compensation. Civil parties can ask for compensation if the accused is convicted, but in France as in Switzerland, if the accused cannot pay, compensation by the state is not considered if the victim or the place of commission of the crime is located abroad. In the end, according to the general counsel, the only motivation of the witnesses and civil parties who came to testify 5’000 km from their homes is their thirst for justice and their hope to be recognized as victims.
In view of the above, the General Counsel asked that the arguments developed by the defense be rejected outright.
On the translation into law of the crimes of which the accused is accused and of his criminal responsibility
The General Counsel then translated the crimes described above into law. She began by recalling the charges against the accused, who was indicted for simple and aggravated acts of torture and barbarism against DN, KT, JTC, SFC and LSM, for complicity in acts of torture and barbarism constituting crimes against humanity against RSK and EFNS, and for complicity in acts of torture and barbarism against RSK and EFNS. The General Counsel explained that the charge of torture was prosecuted both under French criminal law and under international law (Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment signed in New York in 1984). She specified that in 1993, the offence of torture did not exist as such in French legislation and that it was rather an aggravating circumstance of crimes and offences. This crime was later introduced into the Penal Code.
According to the jurisprudence of the Court of Cassation, the realization of the offence of torture requires a material element (i.e. the commission of one or more acts that go beyond simple violence and that cause particular suffering) and a moral element (i.e. the will to deny the dignity of the human person). The General Counsel explained that other criteria were also taken into account, such as the intensity of the violence, the vulnerability of the victims, or the repeated and lasting nature of the abuse. According to the General Counsel, after the presentation of all the facts, the qualification of torture does not suffer any dispute. She recalled that DN had been subjected to the tabé method and beaten before his heart was extracted from his rib cage with an axe. According to her, beyond the extreme suffering inflicted on DN, the act denotes a particular perversity and cruelty. Concerning the execution of KT, the General Counsel referred to a weakened young woman, who had just lost her child and was ill. She was dragged to the ground and shot in the face. According to the general counsel, KT’s particular vulnerability reinforced the horror and constituted an aggravating circumstance. With regard to the forced marches, the public prosecutor stated that JTC and SFC were forced to carry very heavy loads over long distances, repeatedly. She spoke of the intense pain that followed and the violence and terror that prevailed during the transports. Concerning finally LSM, the public prosecutor recalled that the latter had been tied up according to the method of the tabé and dragged on the ground for several meters. He had also witnessed the murder of the rest of the group. The general counsel indicated that for each of these facts, Kunti Kamara took an active part as an author or co-author.
To the question of whether these acts could be qualified as torture under international law, the General Counsel explained that Article 1 of the New York Convention was consistent with the definition established by French case law, adding two elements. On the one hand, the New York Convention requires that the purpose of the act of torture be to obtain information or a confession, to punish, intimidate or coerce a person, or any other motive based on discrimination of any kind. The General Counsel stated that this condition was fulfilled in light of the climate of terror created to control the civilian population and in light of the fact that the Kissis were specifically targeted because they were suspected of collusion with the NPFL. On the other hand, the New York Convention requires that the act of torture be inflicted by a public official or any other person acting in an official capacity. In this regard, the General Counsel found that Kunti Kamara committed these crimes in his capacity as an official commander of ULIMO. She added that this capacity had to be assessed on the facts of the case and that in this case, ULIMO had to be considered an official authority given the control that this non-state armed group had over Lofa County. According to the General Counsel, ULIMO’s control went beyond mere military control. Indeed, ULIMO was the sole authority in Foya from 1993 to 1995 and was in charge of the administration (setting up a curfew and the S2 office for the census and tracing of the population). Thus, the General Counsel considered that this second condition was met and that Kunti Kamara was guilty of simple and aggravated acts of torture and barbarism against DN, KT, JTC, SFC and LSM.
The General Counsel then examined the responsibility of the accused for the acts of complicity in acts of torture constituting crimes against humanity, committed in 1994 against EFNS and RSK. The General Counsel recalled that the rapes suffered by EFNS and RSK were particularly violent and indicated a particular perversity in the perpetrators. erThe General Counsel specified that the crime against humanity had been introduced in Article 212-1 of the French Penal Code on March 1, 1994 and that previously, only crimes against humanity committed in the context of the Second World War could be prosecuted. Under this provision, crimes against humanity include deportation, enslavement, mass and systematic summary executions, abduction of persons, or torture and inhuman and degrading acts. According to its definition, the crime against humanity is committed in a particular and specific context aimed at terrorizing the civilian population in order to subdue it. There is also the element of a concerted plan. According to the General Counsel, it is not a question of a prior agreement between the perpetrators. The concerted plan can be assessed in concrete terms and can be observed. The preparation of the murderous actions can be deduced from the way in which these actions are carried out on a territory.
The Advocate General referred to a decision rendered by the Criminal Division of the Court of Cassation on November 24, 2021. This decision clarified the conditions of double criminality in terms of universal jurisdiction for crimes against humanity. In this respect, the identity of all the constitutive elements between the French and foreign provisions was required. The General Counsel reminded the audience that this decision was not final and that it would be up to the Plenary Assembly of the Court of Cassation to rule on this matter.
The general counsel stated that Kunti Kamara was complicit in the crimes committed against EFNS and RSK and that three questions arose. The first is whether the proceedings have uncovered a massive and systematic practice of torture against the civilian population by ULIMO. If so, the question is whether the acts committed against RSK and EFNS were part of such a practice. The final question is to determine the responsibility of Kunti Kamara for these acts.
On the first question, the General Counsel recalled that the nature of crimes against humanity is to target civilian populations. She explained that the documentation gathered on the civil war in Liberia and the explanations of the background witnesses established that the crimes targeted civilians because of their ethnicity or status, regardless of their participation in the hostilities. According to the general counsel, the testimony converged on the fact that the people of Foya were enslaved in the same manner as in other territories controlled by ULIMO. Indeed, ULIMO has put in place a summary program to control the territories and establish its control over the population. The General Counsel recalled that crimes against humanity are not necessarily the work of a State, but can be the work of an armed group. In this sense, the General Counsel referred to the judgment of the International Criminal Court on March 7, 2014 in the Katanga case, which resulted in the conviction of this former armed group leader for crimes against humanity committed by his group. According to the General Counsel, the qualification of crimes against humanity is thus perfectly appropriate to qualify the crimes committed by ULIMO in Lofa, and more specifically in Foya.
On the question of whether the acts committed against RSK and EFNS were part of systematic and massive crimes committed against the civilian population, the General Counsel stated that it was documented that women were particularly abused and mistreated during the ULIMO occupation. According to her, these crimes were systematic from the moment ULIMO arrived in a village and were part of the program to exploit the population. She specified that the crime against humanity is not defined by the number of crimes committed, but by the fact that it is part of a practice. In this case, there is no doubt that the crimes committed were more numerous than those that the Court is called upon to deal with. The General Counsel stated that the rapes committed against RSK and EFNS, beyond their exceptional gravity, were part of the criminal actions carried out by ULIMO and should be qualified as crimes against humanity.
Finally, the General Counsel invited the Court to consider the responsibility of Kunti Kamara, and in particular his complicity by aiding or assisting in the commission of the crimes committed against RSK and EFNS. The General Counsel recalled that Article 121-7 of the French Criminal Code requires neither that the accomplice share the intent of the perpetrators, nor that he or she adhere to or approve the concerted plan. The law requires that the accomplice had knowledge of the intention of the author to commit the crime, and that the presence of the accomplice facilitates the criminal act. The General Counsel indicated that the jurisprudence has developed a broad concept of complicity in that it has accepted that the mere presence of an individual at the scene of a crime is sufficient to characterize complicity. Participation in the commission of the crime may constitute an abstention if the accomplice has any power to oppose the crime. The accomplice must know that a crime is going to be committed and that his or her contribution facilitates its commission.
According to the General Counsel, the mass rapes in Liberia were committed in plain sight. Given his position and responsibilities within ULIMO, Kunti Kamara could not have been unaware of the widespread and systematic nature of the rapes against civilians. The general counsel asserted that he had necessarily adhered to this practice, since he had not behaved in a way that would lead to withdrawal or disassociation. Also, his position during the trial was consistent with this. The general counsel specified that the sexual torture committed against RSK and EFNS was committed by Kunti Kamara’s subordinates and that he was in the immediate vicinity of the events. Furthermore, the victims asked him to intervene in his capacity as a superior. However, in both cases, his only reaction was to laugh and to trivialize their torments. The rapes were repeated, since the accused did not take the necessary measures to punish those responsible, even though they were under his command. Thus, according to the general counsel, Kunti Kamara was an accomplice to these acts, given that his responsibility is that of a superior.
The General Counsel then addressed the choice of two separate criminal offences and the ideal combination of offences. She explained that it was possible to choose two offences as long as they had two different intentions or protected different interests. However, the case law had evolved by judgment of November 15, 2021, since it was now forbidden to combine two legal qualifications for the same act, in particular when one offence constitutes an aggravating circumstance of the other. In such a case, the broader offence must be retained. According to the Advocate General, the offence of torture is included in the offence of crime against humanity. She thus asked the Court to acquit Kunti Kamara of complicity in acts of torture and barbarism and to find him guilty of complicity in acts of torture and barbarism constituting a crime against humanity.
The General Counsel recalled that the objective of the sentence imposed was to avoid recidivism and to protect and rebalance the social order. She explained that the law provides for a maximum sentence for each offence. For the crime against humanity, the maximum sentence is life imprisonment for both the perpetrators and the accomplices. This is therefore the sentence incurred by Kunti Kamara for the acts concerning RSK and EFNS. With regard to the simple acts of torture committed against JTC, SFC, LSM and DN, Kunti Kamara faces a sentence of 15 years’ imprisonment. For the aggravated acts of torture committed against KT, he faces a sentence of 20 years’ imprisonment.
The general counsel stated that the maximum sentences seem singularly low in view of the extreme seriousness of the acts in question and therefore made a point of citing some foreign benchmarks. She explained that Mohammed Jabbateh was sentenced to 30 years in prison in the United States for perjury and that Alieu Kosiah was sentenced to 20 years in prison in Switzerland, which was the maximum sentence at the time of the crime under the old Swiss military penal code.
The Attorney General said the trial was a beacon of hope for the victims in their fight against impunity and that their expectations were shared by the entire Liberian population. She added that the just sentence must take into account Kunti Kamara’s overall behavior and responsibility. According to the General Counsel, Kunti Kamara is a direct perpetrator, but also a superior who must take responsibility for the crimes committed by his subordinates. She specified that Kunti Kamara had made the choice to join ULIMO and to remain there. She emphasized that her membership in ULIMO is still intact to this day.
Regarding the personality of the accused, the General Counsel stated that it was necessary to take into account the fact that he had established superficial relationships in Europe, since he concealed his past. His escape route was marked by lies and dissimulation, going beyond a simple minimization. In this regard, the Attorney General recalled that the accused had deceived the Dutch authorities in order to obtain asylum and then nationality. She maintained that Kunti Kamara had systematically trivialized and minimized his deceitful maneuvers, without showing any regret. According to the General Counsel, Kunti Kamara’s life path is one of never-ending flight. With regard to his position on the crimes committed and the civil war, the accused has no distance from these events and does not regret his involvement in ULIMO. According to the general counsel, Kunti Kamara himself said that if the war resumed tomorrow, there is no doubt that he would take up arms to defend his community. The public defender also emphasized the fact that the accused disputed all the facts of the case, calling the witnesses and civil parties liars, and even denying any crime committed by ULIMO. According to the General Counsel, such an attitude is worrisome in terms of recidivism. She added that he never had the intention of explaining the facts of which he is accused. As proof, he tried to flee when the police were about to arrest him. She added that the violation of his obligations while he was under judicial control attested to his contempt for the decisions of justice. The General Counsel finally stressed that Kunti Kamara’s responsibility was full and complete since he does not present any psychological anomaly or dysfunction of discernment. The General Counsel declared: “One can be an ordinary man and commit extraordinary crimes”.
The general counsel then paid tribute to the victims who came to testify and who all returned to Foya with their wounds and fears. She emphasized that the crimes Kunti Kamara committed were the most serious of all. According to the General Counsel, these crimes destroyed families and the community of Foya, and harmed all of humanity. According to her, the virulence expressed by the accused towards the victims and his opacity regarding his responsibility and that of his armed group, whose ravages he denied, constitute a real danger for the victims, the population of Foya and all of humanity.
The General Counsel urged the Court to render a fair decision and emphasized that the decision will be historic and scrutinized here and elsewhere, as it will be the first decision on crimes against humanity committed in Liberia. The General Counsel invited the Court to send a clear message to the former torturers who are fleeing as the noose tightens, in order to avoid responsibility. This message is that France should not be the last refuge for criminals against humanity.
In view of the above, the General Counsel asked the Court to sentence Kunti Kamara to life imprisonment.
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Plea of Me Maryline Secci
The defense attorney began her argument by emphasizing that the facts of torture and barbarism and crimes against humanity of which Kunti Kamara is accused constitute exceptional and very serious qualifications, but that this seriousness should not blind the Court. She stated that she did not understand how it was possible for her client to have ended up before an Assize Court. She reminded the court of what she had been told over and over again, namely that she was trying a man for acts committed in Liberia almost 30 years ago in the name of universal jurisdiction. However, according to the defense lawyer, there is no link between France and Liberia and although the purpose of universal jurisdiction seems very laudable, the starting point is complicated by the cultural gap and our own ignorance. According to the defense attorney, there were many attempts to bridge this gap through documentaries, background witnesses, and re-enactments, but the reality was that no one in the courtroom knew how Liberian society worked or had an accurate understanding of the first civil war. She added, “We approached the proceedings through our own prism and with our own cultural codes. But to judge, you have to understand. If you don’t understand the context or if you have a partial or biased vision, you can’t judge a person correctly. She added that France boasts a judicial system capable of judging the most serious crimes and recalled that Layee Bamba and Mohammed Kenneh had tried to reassure Kunti Kamara that he was going to be tried in France, the country of human rights. This is the reason why Kunti Kamara stayed in France and agreed to talk to the authorities. However, according to the defense lawyer, her client did not receive a fair trial in several respects.
The defense attorney first emphasized the lack of means granted to the defense, which was granted the same means as for a common law crime, even though the facts are old and were committed thousands of kilometers away. She stated that she had no financial or logistical means at her disposal to collect evidence, whereas the civil party was assisted by the GJRP and the costs of the Public Prosecutor’s Office were covered by the French State. The defense lawyer also mentioned the travel of her colleague to Liberia, who did not receive any compensation. The latter simply asked for a car and a driver to be put at her disposal and was accused by the civil party of having taken photos on the spot, which were erased before the examining magistrate. The defense lawyer noted that the public prosecutor took advantage of this to open a procedure against the defense driver, which destroyed any possibility of finding witnesses for the defense. According to the defense lawyer, the file that was presented to the court is biased because it contains only incriminating testimony against the accused.
The defense lawyer added that Kunti Kamara’s defense team consisted of only two lawyers, forced to share legal aid, despite the seriousness of the charges against the accused and the fact that this is not a case of common law. The defense lawyer added that neither she nor Tarek Koraitem had collaborators to assist them, which explained the fact that the procedural incident of prescription was raised late.
The defense lawyer noted another breach of the principle of a fair trial, in that the postponements took place without the presence of the accused. Chief Warrant Officer Peruggia cited logistical difficulties, but according to the defense attorney, everyone felt that there was no need for Kunti Kamara to be present and that they could do without him because everyone already considered him guilty. According to her, the accused could have explained the distinction between Foya City and Foya District if he had been there. She recalled that this question was never asked during the trial and stated: “None of us had enough knowledge to think that Foya could mean both the district and the city of Foya. We were misled by our own ignorance.
The defense lawyer raised a final point concerning the unfairness of the trial of Kunti Kamara. According to her, the proceedings were marked by a great deal of benevolence towards the victims, but especially not towards the accused. She said that everyone was annoyed whenever the accused opened his mouth, no matter what he had to say. When he answered questions, they did not want him to explain himself, but to confess. According to the defense lawyer, when a witness or a civil party is not able to give dates or contradicts himself, everyone agrees that it is because of the time that has passed. On the other hand, the accused is expected to give a complete, precise and coherent account. Everything he says is considered suspicious and people roll their eyes when he tries to give an explanation. According to the defense lawyer, they wanted to remove Kunti Kamara from the proceedings at all costs.
The defense lawyer then returned to the conspiracy theory. She stated that it was not up to the accused to answer the question as to why so-and-so designated him as the perpetrator of the facts, since he had nothing to do with it. According to the defense lawyer, the accused was forced to justify the object of his accusation, while it is not his role. It is up to the prosecution to prove that Kunti Kamara committed these crimes.
In view of all the elements mentioned, including the contempt shown towards Kunti Kamara, whose answers were constantly questioned, the defense lawyer asked the jurors if they considered that Kunti Kamara had received a fair trial in a country and language that were not his own.
The defense attorney then addressed the issue of evidence and highlighted the lack of physical evidence: no dates of birth, no body, no identification papers. She stated that no one could be accused of a crime without evidence or murder without a body. The defense lawyer pointed out the shortcomings of the investigation, in particular the lack of effort to find human remains or to investigate the previous destruction committed by the NPFL. According to her, the investigators relied on testimony and this is insufficient in 2022 because testimony is no longer the only means of proof.
The defense lawyer emphasized that this trial relied entirely on the word of the victims, because time erases physical evidence and witnesses are rare. Therefore, only a handful of testimonies are needed to convict a man to the maximum sentence. The testimonies are the only elements available to the prosecution, so they wanted to give them the value of irrefutable evidence. However, according to the defense lawyer, most of these testimonies are subject to contradictions. The prosecution and the civil party tried to explain that these contradictions gave credibility to the statements and systematically retained the version implicating Kunti Kamara. However, the defense has taken offense at each of these shortcomings and inaccuracies, as the standard of proof cannot be changed when it comes to crimes against humanity. The same level of proof as in any other case must be required. The defense attorney criticized the testimony for being contradictory in relation to the same facts. She criticized the prosecution for sometimes relying on a single direct witness and questioned how it was possible to convict a man of such a serious crime on the basis of a single direct witness, almost 30 years after the fact, when such testimony would be worth almost nothing in a common law case. She added that everything the witnesses said was taken at face value, while everything Kunti Kamara said was a lie. However, the prosecution and the civil party were very happy when the accused admitted that he was a ULIMO soldier. According to the defense attorney, the prosecution and the civil party took what was convenient for them and used everything else against the accused. Another example is the testimony of Alieu Kosiah, who was given credence even though he was convicted in Switzerland for similar crimes. The defense lawyer said that if the court considered the word of a witness to be worth more than that of the accused, this meant that it presumed Kunti Kamara guilty, which is contrary to the proper functioning of justice.
With respect to the accused’s attitude toward the victims, the defense attorney noted that it was not in his culture to show compassion, as the expert had rightly pointed out, noting a great reserve in the expression of feelings within African culture. In any case, if Kunti Kamara had shown empathy for the victims, it would have been held against him and he would have been considered “genocidal and a liar,” according to the defense attorney. The defense attorney also noted that at no time was it assumed that the witnesses were mistaken, given the age of the events. She invited the jurors to try to remember events that happened more than thirty years ago. The defense lawyer wondered whether the witnesses and civil parties could have lied or been mistaken when they thought they recognized Kundi, since they were aware that their need for justice and recognition as victims would not be satisfied if they did not say that it was him. If they did, no one would be interested in their suffering. According to the defense lawyer, this is not a conspiracy, but an enormous need for justice of people abandoned by the country.
Regarding the identification of Kunti Kamara by the witnesses, the defense attorney recalled that the photographic plate had only been established in March 2019 by the French investigators. Some witnesses had to identify the accused on this photographic plate, while others saw him only during the hearing or were confronted with him in the office of the investigating judge. According to the defense lawyer, it is therefore false to claim that Kunti Kamara was identified by 20 people. MN and AN stated that they had never seen him, FG gave a description of the accused and was confronted with him before the investigating judge, and JTC and RSK were directly confronted with him. As for SFC and NS, they were not shown any photographic plates. The defense lawyer said that only LSM and SS recognized Kunti Kamara on the photographic plate. She added that these conditions of recognition were unworthy of a criminal procedure and necessarily led to the identification of the accused. The defense attorney stated that she was convinced that these identifications were biased and risky because of the physical descriptions given by the witnesses. She pointed out the inconsistencies in these descriptions, particularly with regard to the accused’s hairstyle, skin color and alleged squint. On this last point, the defense lawyer stated that she had observed her client and that it was obvious that he did not have squinting eyes. The conspiracy theory could therefore be considered in this regard. The lawyer stated that there was therefore no clear, precise and concordant identification of Kunti Kamara by the witnesses. She also said she was surprised that so much credence was given to the testimonies, citing the absence of exaggeration, when the court had heard for three weeks about hearts being ripped out, checkpoints being made of intestines, and atrocious rapes. According to the defense lawyer, the crimes denounced are serious and non-exaggeration is not a mode of proof. She added that in her opinion, the witnesses had overwhelmed Kunti Kamara and that he risked spending the rest of his life in prison.
After these general remarks, the defense lawyer addressed the jurors, telling them that their task was difficult, as they had to translate the facts into law for each offence. In this regard, defense counsel gave the example of theft, which the Penal Code defines as the fraudulent taking of another’s property. She explained to the jurors that if one of them took her purse with her permission, the act did not constitute theft. Similarly, if she threw it in the garbage and one of the jurors took it afterwards. If one of the jurors took it and was charged with robbery, then robbery was not the correct charge. The defense attorney explained to the jury that their task was to verify that each offense charged to the defendant met the definition provided by the law. In this regard, she reminded the jury of the wording of article 1er of the New York Convention and went on to repeat one by one the elements in fact and in law, specifying that Kunti Kamara denied all the facts.
First of all, with regard to the murder of DN, the defense lawyer emphasized the absence of material elements: absence of a body, death certificate, precise date. She stated that she had photographs of a place where everything had changed and a newspaper article that was supposed to refer to DN. She added that there were testimonies from MN and AN, who were not present at the murder and therefore did not see anything. DN’s brother-in-law, DFB, also did not witness the murder, but stated that DN was alive for three days after his arrest and that he saw his bloated corpse before burial. TFT stated that his uncle was present when DN was arrested. Finally, SK stated at the hearing that DN had said that he did not know who was responsible for the destruction. The defense lawyer pointed out that at this stage there were five witnesses, none of whom had witnessed DN’s death. The only eyewitness to the scene was JTC. According to the defense lawyer, he is nevertheless unable to give the names of other people who were present at DN’s execution. However, it is legitimate to demand that these names be given, as the events took place in the small town of Foya. The defense lawyer stated that she could not be satisfied with one direct testimony. In addition, she pointed out that JTC testified that he was 50 meters away from the scene and mentioned the tabé, the cutting open of DN’s chest with an axe by Ugly Boy and the ripping out of his heart. She also raised the fact that it was not possible to carry out a real re-enactment of the situation, as the scene had changed. The defense lawyer denounced the fact of basing a conviction on the words of a single direct witness. According to her, the only material element is the press article reporting this execution. However, this article makes no mention of a ripped out heart and indicates that DN would have been killed because of his religious convictions since he was carrying a bible. She added that by reconstructing the file, one could understand that the looting of the Borma Mission and the murder of DN were concomitant. However, SFC never mentioned DN’s death. As for JTC, he was consistent in saying that he did not see Kunti Kamara perform the tabé on DN and cut his rib cage to extract his heart, but only saw him kick the victim. However, according to the defense lawyer, this act does not constitute an act of torture or barbarism according to the New York Convention, but of violence. The New York Convention being inapplicable, it is not possible to appeal to universal jurisdiction. In view of the above, the defense lawyer invited the Court to find Kunti Kamara not guilty of the murder of DN.
With regard to the murder of KT, the defense lawyer stated that there was again no material evidence: no birth certificate, no death certificate, no body, only photos of the alleged place of the murder. She also raised the contradictions between the testimonies of FG, NS and TK, especially regarding the place of the crime. The lawyer said she was surprised that FG was able to describe the execution of his sister with such precision, even though he was hiding in the banana plantation at the time of the events. As for EzP, he formally pointed to Kunti Kamara and said that he killed KT directly in his room, contrary to what the other witnesses said. According to the defense lawyer, all these testimonies are discordant and imprecise. She asked the court to be rigorous, regardless of the fact that the facts are old. The defense lawyer returned to two additional details that caught her attention. First, she was surprised by the fact that KT’s body was buried, whereas Patrick Robert explained that it was customary to leave bodies in the open to scare the population. Secondly, she was surprised that simple palm leaves were likely to consume the body completely in the middle of the rainy season. The defense attorney added that there was no evidence that Kunti Kamara was in Foya Dundu at the time of the murder. She said she did not agree with the prosecution’s characterization of the crime as murder, not torture. Furthermore, the motivation for the murder cited by FG was witchcraft, not the desire to assert the authority of ULIMO and maintain a state of terror. Thus, according to the General Counsel, the application of the New York Convention must again be set aside and the guilt of the accused denied.
The defense attorney then addressed the forced marches. Regarding the material elements, the defense lawyer stated that she only had photos of an empty power plant and drawings describing how the charges would have been transported. She added that when the case was rehearsed, witnesses were not asked to carry charges as they did at the time, in order to get a sense of how the events unfolded. Furthermore, no verification was made, especially with the company that operated the power plant, even though it is known that the NPFL was on site before the ULIMO. The investigators were satisfied with the testimonies of witnesses, it being specified that only two witnesses mentioned the operation of the generator, namely JTC and LSM. The defense lawyer said she was surprised that all the top brass of ULIMO were present at the march when the faction was in the midst of a positional war. She pointed out that LSM did not see Kundi at the march, although he was present and moved to the back and front of the convoy. According to the defense attorney, LSM has no credibility when he claims to have been a good soldier to civilians. He is a witness who is “flipped” to ensure his immunity. The defense attorney then noted that these marches were described as massive, but that the witnesses were unable to give the names of others who were commandeered. She also questioned the feasibility of what was described, such as driving a truck without an engine more than 20 km on impassable roads or driving a machine as heavy as an electric generator across a river on simple wooden planks. At no time has it been demonstrated that this is feasible. We must therefore rely on the rare testimonies without contesting them. According to the defense lawyer, the facts that were described are not torture, but forced labor, as provided by the French Criminal Code. Moreover, the aim pursued was purely economic, so that the facts as presented do not fall within the framework of the New York Convention.
Regarding LSM’s submission to the tabé method, the defense lawyer said she had a satellite photo of a well, which was never checked for human remains, and a photo of LSM’s injured back, without a medical certificate. The defense lawyer recalled that she had doubts about the veracity of LSM’s statements, especially because of his sensitive position as a former ULIMO soldier and the fluctuations in his statements. Before the Swiss judge, LSM implicated Alieu Kosiah and stated that Kunti Kamara did not beat him up and that several soldiers were present, while before the French judge, he was more nuanced and stated that Kosiah and Kunti were both responsible and that Kunti Kamara beat him up on Kosiah’s orders. According to the defense lawyer, LSM is afraid of being accused and prefers to accuse others. As for SS, she repeated that she did not know LSM. According to the defense lawyer, it was never established how far away she was from the scene, which explains the inaccuracies in her account. Regarding the qualification, the question is whether Kunti Kamara subjected LSM to severe pain by subjecting him to the tabé, which the defense attorney said she did not.
Finally, concerning RSK and EFNS, the defense lawyer pointed out the absence of documents attesting to their dates of birth, as well as the absence of a medical certificate or medical expertise on their physical after-effects. She specified that there was no psychological expertise concerning EFNS, but a medical certificate without official stamp mentioning a uterine cyst and multiple uterine fibroids caused by abdominal pain. She added that this document made no mention of injuries or scars. Regarding the testimonies, the defense lawyer said that she only had two testimonies from the main witnesses. RSK stated that she had been raped without giving the names of the perpetrators and that Kunti Kamara had laughed in her face. As for EFNS, she explained that she was raped by B and that Kunti Kamara had minimized the facts. According to the defense lawyer, this is again not the right legal qualification, because there are no acts of torture and barbarism in the sense of the New York Convention, but rapes. Furthermore, there is no evidence of Kunti Kamara’s position of authority over the perpetrators of the rapes. There is no medical expertise either. With regard to the definition of complicity, Article 121-7 of the Penal Code provides that the person who knowingly, by aid or assistance, facilitated the preparation or consumption of a crime or offence is an accomplice. In this case, the accused was accused of having laughed and not having intervened. The defense lawyer added that according to the jurisprudence of the Court of Cassation, acts prior to or concurrent with the crime justify the referral of a person to trial provided that they are positive. Therefore, an action is required to be considered an accomplice. According to the defense attorney, if someone is to be convicted for his inaction, it is the offense of non-assistance to a person in danger. She therefore invited the court to acquit Kunti Kamara on these facts.
The defense attorney called on the jury to be rigorous in verifying whether the facts fit the legal qualifications. She asked the court not to indict the accused for all crimes committed during the Liberian civil war. She said her point was not to deny the atrocities committed during the civil war and the suffering of the Liberian people, but to say that Kunti Kamara did not commit these crimes. She recalled that this trial was not about ULIMO or the civil war in Liberia, but about Kunti Kamara. She reiterated that a conviction must be based on the intimate conviction of the jury, beyond any reasonable doubt of the guilt of the accused. The defense attorney concluded her argument by asking the court to acquit Kunti Kamara because this trial did not have the rigor that any defendant could expect from a trial and because there was no concrete evidence of Kunti Kamara’s guilt. She concluded by stating: “I am asking you because his innocence is my firm conviction.
Plea of Me Tarek Koraitem
The defense attorney spoke, indicating that he had a great appreciation for the suffering of the Liberian people, before which the defense was obliged to bow. He then quoted Jean-Paul Sartre as saying that war is not a disease but an unbearable evil because it comes to men through men. He added that war was not a choice, but something suffered and that Kunti Kamara suffered it himself like all Liberians and took part in it with its trail of misfortunes, deaths and atrocities. The defense attorney stated that everyone in the courtroom had never experienced the horror of war in France and knew how lucky they were.
The defense attorney then stated that today, separated by several thousand kilometers from a country with which France had no connection, the jurors had to judge Kunti Kamara for acts he allegedly committed thirty years ago. They must judge whether Kunti Kamara committed the most serious crime and say whether the accused committed the acts of torture alleged against EFNS and RSK, and whether these acts are likely to qualify as crimes against humanity. The defense counsel stated that this crime was simple in that it was a widespread and systematic attack against the civilian population. This crime must therefore be of a massive scale. According to the defense lawyer, it is therefore not a question of whether an act is intrinsically horrible, but whether it fits into a general context of a massive attack. The defense attorney urged the jurors to put aside the fact that Kunti Kamara was a soldier, that he fought on the battlefield and killed enemies, since these elements were intrinsic to war. The question is whether these acts were committed against the civilian population and whether ULIMO made it a policy to torture and rape.
With regard to the qualification used by the prosecution, the defense lawyer pointed out that in 1994, the definition of crime against humanity did not refer to rape. According to him, this is the reason why the prosecution tried to explain that the acts of penetration that RSK and EFNS underwent were acts of torture and barbarism, when in fact they were qualified as rapes. It is also necessary to examine whether the ULIMO leaders had the will to establish the crime of rape or the crime of torture as a policy in itself. According to defense counsel, Liberia in the 1990s is a country of total anarchy. This is not national socialist Germany with a certain ideology and policy, it is anarchy, civil war, factional opposition, invasions. There is no logic. According to the defense attorney, it does not appear from the proceedings that ULIMO had a concerted plan and policy of systematically raping or torturing the civilian population. On the contrary, it was the lack of organization that made this war so atrocious. The defense lawyer recalled that the qualification of crime against humanity presupposes a government policy. In this respect, he gave various historical examples, such as the policy of extermination of the Jews during the Second World War, the policy of apartheid or the policy of pogroms. He repeated that the question was whether the rapes of EFNS and RSK were part of a global policy. However, according to him, the Public Prosecutor’s Office has not provided evidence that these rapes were committed as part of a concerted plan. In this regard, the defense lawyer noted the absence of meetings of senior ULIMO officials, recordings or other evidence of such a policy. The defense attorney acknowledged that the war was horrific, even “the most disgusting war ever,” but there was no evidence that rape and torture were a systematic policy of ULIMO.
With regard to the concerted plan, the defense lawyer recalled that the question was whether the ULIMO dignitaries had ordered their soldiers to commit rapes on a certain category of the population, for example on Kissis women. The defense lawyer stated that there was no evidence to prove this and no evidence to show that these were not isolated acts. In this regard, he stated that in order to qualify as a crime against humanity, the crimes committed must have a logical link between them. However, according to the defense lawyer, an isolated act cannot constitute a crime against humanity insofar as a rape remains a rape and is sanctioned by common law. He acknowledged that the acts committed were serious, but refuted the fact that they were part of a crime against humanity. He added that the rape was the result of an intrinsic perversion, personal and specific to the person who committed it, and did not in itself make it possible to characterize the concerted plan. Moreover, the fact that ULIMO did not prevent the commission of these rapes does not allow one to infer that this armed group carried this policy “like a credo” in the context of its attack in Liberia. In addition, the policy must have a philosophical, racial or religious motivation. The defense lawyer expressed serious doubts that ULIMO, “that band of brigands,” invaded Liberia for any other reason than to overthrow Charles Taylor. He added that there was an evil intent behind the crime against humanity, a dark side that made those who committed it or were complicit in it have a desire to destroy civilization in order to remake it. In the eyes of the defense lawyer, Kunti Kamara did not reach this level of reflection and the acts he was accused of were not aimed at the community as a whole.
On the issue of intent, defense counsel argued that a person who is alleged to have participated in a crime against humanity must also be aware that he or she is part of that criminal enterprise. Thus, Kunti Kamara would have had to be aware that he was participating in a crime against humanity and in the implementation of a policy of systematic rape by ULIMO at the time B raped EFNS. Nevertheless, the defense attorney reiterated that “ULIMO is anarchy, there is no policy, no ideology, they are shaggy rebels. He also relied on the testimonies of Thierry Paulais and John Stewart, insisting on the material motivations of the ULIMO soldiers and on the fact that the warlords “changed sides like shirts. He said that the war in Liberia was not ethnically based and that the Kissis were not the only victims. He added that it was not an ideological war, but a war for resources and diamonds. The mere fact of being a member of ULIMO with the rank of commander does not allow one to infer that Kunti Kamara was aware of participating in a concerted plan. The defense lawyer also said that just because Kunti Kamara was a member of one of the worst rebel factions, it did not mean that “all the abuses in Liberia should be pinned on him. He gave the example of German soldiers in World War II, not all of whom were pro-Hitler, and quoted Nietzsche (“I am nuance”). He asked the jurors to be nuanced and told them that they were not the avengers of the Liberian people, but French jurors with all that that entailed. To help them make their decision, the defense lawyer referred to the three major trials for crimes against humanity that have littered French judicial history and which, according to him, have nothing to do with the trial of Kunti Kamara. The defense attorney cited the trials of Klaus Barbie, Paul Touvier and Maurice Papon, convicted of crimes against humanity for having, respectively, sent 44 Jewish children and 7 adults to the death camps, ordered the shooting of people of Jewish origin, and set up files listing people of Jewish origin in order to arrest them and send them to the death camps. The defense attorney stated that he felt that this was a far cry from the case of Kunti Kamara.
Finally, defence counsel returned to the issue of complicity. He stated that complicity requires positive behavior and admitted that the case law cited by the General Counsel had established certain exceptions, including mere physical presence during the commission of the offenses. In this case, Kunti Kamara was not present at the time of the rapes of EFNS and RSK. The latter would have come to complain to him before and after these acts, but not at the time. Furthermore, Kunti Kamara did not commit any positive act of aiding or assisting in the commission of the offense. According to the defense attorney, Kunti Kamara cannot be prosecuted for these acts of complicity.
The defense attorney concluded his argument by reminding the jurors that their decision was of paramount importance. According to him, at a time when war is raging at the gates of Europe, it is important that the crime against humanity and its definition be confined to the most serious facts, behind which there is a policy in place to commit atrocities against the civilian population. He told the jurors that if they convicted Kunti Kamara of a crime against humanity, they would be opening a Pandora’s box. He also told them that they were the guardians of that milestone that prevented anyone from committing multiple rapes instead of one. He asked the jurors to make their decision taking into consideration humanity, the signal they will send to the perpetrators and the French justice they represent.
The President closed the hearing by asking the interpreters to indicate to Kunti Kamara that he will have the floor last the next morning and that he should think carefully about the message he intends to convey.