The case for the Third Accused, Augustine Gbao, prepared to draw to a close this week as three more witnesses were called to the stand. The final remaining witness, an expert, will testify on Monday and Tuesday of next week.   This week was marked by a prolonged debate about the need to balance the rights of one accused with those of a co-defendant, as John Cammegh, counsel for the Third Accused, fought to fully present his client’s defense, which had the potential to incriminate Morris Kallon, the Second Accused. The first two witnesses this week spoke of their personal experiences with Gbao punishing RUF misconduct, while the third witness, who served as Gbao’s driver for an extended period of time, testified in great detail as to Gbao’s version of the May 1, 2000, incident that led to the abduction of UNAMSIL personnel.

Witness DAG-018: Witness DAG-018 was the fifth witness for the Gbao defense and was subject to protected measures, testifying from behind a large wooden screen that shielded him from the public gallery. The witness chose to testify in Krio, with the court providing voice-over translation. Cammegh stuck to his strategy of orienting the court by asking the witness at some length about his whereabouts during the early days of the war, even though these years do not fall within the indictment period. In 1992, the witness was working as a trader in Kono, importing rice. He remembered when the rebels overtook Kono, saying that he did not flee at first and that he saw the rebels breaking into stores and giving soft drinks and biscuits to the people who stayed. However, he eventually decided to escape to Makeni. The witness was then in and out of Makeni until he ran away to Guinea with his family during the ECOMOG intervention, which he characterized as making life “not easy” for those in Makeni. While the witness was in Guinea, he heard that the Lome peace accord had been signed. Although he did not really believe it was safe, especially after hearing stories about Superman being a wicked man, he decided to return to Makeni. While he was hiding in the bush, a neighbor named Pa Karoma went into town and came back to announce that he had heard a town crier stating that there were to be no more looting, no raping, no forced labor, no harassment of civilians, and no forced food-finding missions. After waiting a week, the witness said he decided to go into town himself; however, along the way he encountered two soldiers, who tried to force him to carry a huge bag of rice, threatening to kill him. It was on the walk to Makeni that they were intercepted by a van out of which a man, whom the witness would later find out to be Augustine Gbao, emerged. The witness then related how Gbao told him to set down the bag of rice and immediately punished the rebel soldiers, telling them to start “pumping,” or doing frog-like leaps.

After this personal story, Cammegh prompted the witness to talk about Gbao more generally, and the witness revealed that Gbao did not know him personally and never became friendly with him. However, the witness stated that civilians would report to Gbao when rebels went into surrounding villages and harassed them, and that Gbao was the one who instructed the town crier to tell civilians hiding in the bushes that it was safe to come out.   The witness said that nothing bad happened in Makeni town after Superman left and Gbao took over, although he admitted there were reports of harassment in the surrounding villages. He also recounted a time when Gbao made an announcement that all child soldiers should report to him. When they did so, he took away all their guns, and after that point, the witness never saw child soldiers around town again.

First Accused Issa Sesay’s counsel, Wayne Jordash, then cross-examined the witness, asking questions about the RUF’s treatment of civilians more generally. However, Jordash did not seem to make much progress with the witness, instead eliciting a lot of repetitive testimony. In response to both questions from counsel and the bench, the witness had a tendency to launch into the entire story whenever he was asked a very specific detail, making it difficult to get an exact answer. In fact, the only truly concrete statement Jordash got from the witness was that he always saw Sesay with big men around Makeni town, never child soldiers.

The Prosecution used the chance to cross-examine DAG-018 by asking questions about what happened when the junta passed through Makeni in retreat during the ECOMOG intervention. However, the witness maintained that he did not see the junta burn houses down or loot property; he did admit he heard about looting after he had left. The Prosecution also emphasized that Superman had allegedly already left town at the time the witness was accosted by the two rebels, which would make Gbao responsible for their actions, and the witness agreed that Gbao had authority over those men. Finally, the Prosecution asked about when the rebels came back to Makeni in December 1998. Despite repeating that he did not want to talk about things he did not see or hear himself, the witness agreed he had heard about instances of houses being burnt down, innocents being killed, property being looted, women being raped and children being abducted. The witness also said, somewhat reluctantly, that he did not know Issa Sesay was commander in Makeni at the time, but that he did hear that he was the top “big man”.

Gbao Defense Motion for a Stay of Counts 15-18 of the Indictment or other Corrective Measures

After the dismissal of witness DAG-018, Trial Chamber I gave an oral decision on a motion filed by Cammegh that had been given expedited status. The motion concerned issues related to the alleged non-disclosure on the part of the Prosecution stemming from the testimony of a witness about the alleged abduction of UNAMSIL personnel by the three Accused. As a remedy for this alleged violation of Rule 68 and general abuse of process, Cammegh requested a stay of counts 15-18 in relation to the Third Accused, an oral hearing, permission to reorder his witness list to call the witness to the stand, and disclosure of the unredacted statement of the witness to all parties. The Trial Chamber ruled that it was lifting its previously granted stay on the presentation of evidence related to the UNAMSIL incident and denying the motion in its entirety based on Rules 26, 70, and 73 of the SCSL’s Rules of Procedure and Evidence. Its reasoning included the fact that the motion was made only ten days before the closure of the defense case despite the fact that the alleged nondisclosure occurred almost two years ago; that the Gbao defense had not exercised due diligence in properly calling the witness given the exculpatory nature of his testimony; that the Gbao defense had failed to show material prejudice, and that a stay in this circumstance would be disproportionate and unjustified. Cammegh immediately asked for guidance in filing for leave to appeal and was advised by the Chamber that he would have to wait for a written, reasoned version of the decision, which would likely not be available until after his defense had concluded its presentation.

Balancing the Rights of Co-Defendants: Before the next witness could begin to testify, a confrontation arose between the bench and Cammegh, stemming from Justice Itoe’s warning to Cammegh that he must not use the testimony of this or the next witness to incriminate any of Gbao’s co-defendants. Cammegh replied that his overall motive and duty was to exonerate Gbao, not to implicate anyone else. However, he also said that he had ethical concerns about coaching his witnesses, to which Itoe replied that merely telling a witness he may not mention certain names or advising a witness as to the legal rulings of the court do not amount to coaching. Justice Thompson then stepped in, saying that the duty of the bench was to be overly vigilant that the accused are granted all of the rights they would be guaranteed if they were to be tried separately, which included the right not to be incriminated by a defense witness. To this, Cammegh replied again that he was not intending to implicate anyone else, but that he has a duty to fully present the evidence he has exonerating his client. Mr. Jordash then chimed in that he had absolutely no problem with Issa Sesay’s name being mentioned, as he actually wanted the witness to comment on the details of the Sesay’s involvement in the DDR process. For his part, Mr. Ogeto, counsel for 2^nd Accused Morris Kallon, stated that he wanted it on the record that the comprehensive summaries given to his defense team by the Gbao defense counsel made no mention of his client’s name and that their defense team had no notice of incriminating evidence from the witnesses to come. Justice Itoe ultimately declared that he felt the matter had been sorted out through this “passionate” discussion and that they could continue with the witness.

Witness DAG-047: The questioning of the next witness for the Gbao defense, who was also a protected witness, again began with a discussion of where the witness was before the war, which in this case was Makeni, working as a government statistician. The witness then described how he and all other hunters from the area had been asked by their chief to form the first set of CDF fighters in Makeni, receiving training in 1998 from a Nigerian member of the ECOMOG forces. At the end of training, the witness was posted to the advisory council for the CDF in Makeni, a position from which he was soon removed (the witness said because he asked too many questions, an answer provoking laughter from Justice Itoe) and instead sent to a post in Makeni town. The witness said that he oversaw 20 men but the post only had one gun, as weapons were scarce. It was while the witness was at this post that the RUF allegedly attacked the Makeni barracks on Dec. 25, 1998. The witness said that the CDF response was not to return fire and to retreat to the village of Kamoi, about 15 miles outside of Makeni town; he said the CDF soldiers felt as if the government had sold them to the mercy of the RUF by not properly arming them. After about two weeks, the witness heard that the RUF wanted all the CDF to return to Makeni. Although initially afraid, the witness eventually did return in late January 1999 and reported to his superior, Bangura, who in turn took him and his peers to Augustine Gbao. Gbao stated that the CDF were not the enemies of the RUF and said that if anything was done to harm them, they should immediately report it to him.

Witness DAG-047 then testified about general life in Makeni during 1998 and 1999, giving examples of specific instances where Gbao had intervened to prevent or punish RUF misconduct. He detailed a time when his single-barrel shotgun had been stolen and Gbao made sure it was returned, along with an occurrence when rebels attempted to steal some items from him but immediately returned them when he threatened to report them to Gbao. In the witness’s opinion, Gbao brought control and security to Makeni and would go all out to make sure that there was enforcement of the law. Further, the witness, who was in Makeni continuously from Jan. 1999 to the end of the war, testified that other than the day the RUF attacked the barracks, he never saw any death in the town. Cammegh immediately contrasted this positive testimony by asking about instances when gun-ships belonging to ECOMOG forces attacked Makeni between Jan. and July of 1999; the witness recalled specific times when civilians had died as a result of these attacks. Finally, with testimony continuing into the following day, Cammegh used the witness to deny Gbao’s involvement in specific charges of the indictment. The witness said that following the hostage-taking of UNAMSIL personnel, he had heard Gbao stating that the RUF should not have taken the peacekeepers. He also said that Gbao had gone to Bangura and said that he would not accept any child soldiers from the CDF.

Jordash again took time to cross-examine this witness, asking general questions about the actions of the RUF in taking the barracks in Makeni town and in dealing with civilians on a day-to-day basis. The witness agreed that the CDF had been treated well and that he had seen the group headed by Sesay doing its best to treat civilians well in and around Makeni. Jordash also highlighted the lack of death caused by the RUF in Makeni as compared to the actions of the government forces, asking the witness about an Alpha Jet used by the Kabbah government in Jan.-March 1999 that killed 13 children. The witness agreed that the number of civilians killed in that bombing was more than the total number of civilians killed by the RUF in Makeni in the years following the attack on the barracks.

During cross-examination by the Prosecution, the witness was asked about the movement of the RUF/SLA forces through Makeni after the AFRC overthrew Kabbah in 1997. The witness said that he only knew of one house that had been burnt down but had heard of others being burnt; likewise, he had not seen the killing of civilians but had heard of it. However, after these admissions, the witness largely disagreed with the rest of what the Prosecution suggested to him, or said that he did not know the information being requested. This included denying that Gbao could issue orders outside of minor punishments, denying that the RUF had assisted the group that attacked Freetown in Jan. 1999, denying that the RUF allowed civilians to have guns, and denying that civilians were not allowed to move freely from Makeni to Freetown throughout 1998-1999. The witness also said that he could not speak to the soldiers’ opinion of Gbao, that he did not know who the overall commander of the RUF was in 1998, nor did he know who led the attack on the barracks or on UNAMSIL personnel.

Witness DAG-111: The final witness for the week, protected like the others, testified in Krio with voice-over translation provided for the gallery. The witness described how, after working as an auto mechanic in Makeni, he had made his way to Kailahun town and ended up meeting Gbao, who recovered tools that were stolen from the witness at an RUF checkpoint. The witness ended up staying with Gbao and his family in Kailahun for about 1.5 years. He said he did not pay much attention to Gbao’s doings but knew he was the IDU commander and that this meant he was involved in investigations. The witness left Kailahun when Gbao was transferred to Makeni and ended up making his way to where Gbao had gone; the witness then lived with Gbao again for a period of time. At this time, Gbao had a car (a Toyota Tercel), and the witness became his driver.

Cammegh then asked Witness DAG-111 in great detail about the establishment of UNAMSIL bases throughout Bombali District, and Gbao’s interactions with UN personnel. The witness said he knew of three camps, in Makinneh, Magburaka and Makumb, and that he would drive Gbao to these camps to meet with commanders about 3-4x a week. Gbao never told the witness how these meetings went or what was discussed, but he would be in a good mood after most of them. The witness said that UNAMSIL commanders would also visit Makeni town and talk with Gbao on normal terms. Turning to Gbao’s alleged involvement in the abduction of UN peacekeepers, the witness said that one day Ishmael Kamara, a RUF commander, visited Gbao at his home in the Teko barracks in Makeni, and the witness heard Kamara tell Gbao that some of his men had been disarmed at a DDR camp. A Col. Kailando was also allegedly present and became very angry at this news but was told to stay at the barracks while Gbao went to investigate. The witness then drove Gbao, Kamara and one of Kamara’s “boys” to the DDR camp at Makinneh; the boy had been carrying a gun, but Gbao said that he did not want any weapons brought and made him put it in the boot of the car. Upon arrival at the camp, Gbao appeared angry and met four Kenyans at the gate; these men told Gbao that the man he was looking for was not there, and so the witness then drove everyone to the DDR camp at Makumb. Still angry, Gbao went to speak to the securities outside the gate there and was told that there had been disarmament, but it hadn’t been done by the Kenyans. The witness said that Gbao then became calm and sent Kamara with the witness to give Col. Kailando a message that the matter would be handled; Gbao stayed at Makumb during this time. Upon receiving the message that the men had been disarmed but not by the Kenyans, Kailando reportedly retreated into his house, and the witness once again left with Kamara to meet Gbao, stopping for fuel along the way. Speaking to the issue of command responsibility, the witness verified that Gbao did not have the power to give orders to senior commanders like Kailando. When back on the road, the witness allegedly saw Col. Kailando’s vehicle stopped in the middle of the road along with a UN vehicle, with some of Kailando’s men trying to disarm Kenyan soldiers. Continuing on to Makumb, the witness said he came upon Gbao outside the gate, still alone, with no other vehicles in sight, and that the mood between Gbao and the Kenyans was normal. However, a short while later, Col. Kailando’s vehicle arrived and more than 10 men got out with weapons. According to the witness, Kailando was angry and shot up into the air. While Gbao was talking to Kailando, begging him not to do anything, another vehicle arrived with more RUF securities and a commander, whom the witness did not name.

At this point, Justice Itoe agreed with the Kallon defense team that Cammegh could not ask, “What did that commander do next?” Cammegh immediately became upset and said that without being able to ask such questions, he was at a loss as to how to present his case. The trial chamber then once again became steeped in a controversial discussion about how to balance the rights of one accused against another. Justice Itoe vehemently rejected the suggestion that the bench had chosen one defendant over another. Cammegh repeatedly stressed the fact that the judges in this case have stated they are professionals who can divorce their minds from certain evidence when the time comes to do so, and that allowing him to present his full case would be far less prejudicial than preventing his client from presenting his version of events. Meanwhile, the Kallon defense team became extremely angry, glaring at Cammegh and visibly seething at his comments. Justice Thompson admitted the complexity of the issue but said that there is a rule that a co-accused cannot implicate another co-accused, and that this rule must be applied, even if it becomes extremely difficult to do so. However, Cammegh then made some progress in swaying the bench, stating that he has not named Kallon; as far as the court is concerned, at this point, an unnamed commander has arrived at the camp. In Cammegh’s opinion, he could proceed in questioning his witness without naming that commander (understood by everyone present to be Kallon), and that the court would never have to consider the Second Accused in its evaluation of the witness’ evidence. Finally, Cammegh returned to an analogy he made numerous times throughout his argument, stating that if the witness’s version of events was believed by the judges, their refusal to admit his testimony would be akin to refusing to admit a videotape that showed one of the Accused committing a crime with another one of the Accused trying to stop him. For its part, the Kallon defense said that its principle objection that it had no such notice that evidence against its client would be presented. The Kallon team also made a digging comment about Cammegh’s experience, which Justice Itoe asked to be withdrawn, noting that the counsel must treat each other with respect. After a recess, the judges returned to announce that as long as the understanding was that the role of the witness was not to incriminate anyone else, Cammegh’s line of questioning would be permitted, marking a major victory for Gbao’s defense.

Continuing with his testimony, Witness DAG-111 said that yet another car, a Land Rover, then arrived, with a total of more then 50 armed men now present at the Makumb camp. The commander from the second car then shot up into the air. Gbao, who the witness said sounded afraid, spoke to that commander, telling him not to do anything, but by this point the Kenyans had gone inside the camp. The witness said it was at this point Gbao decided to leave, and he drove Gbao back to Makeni town. Later that night, when civilians asked Gbao about the incident, Gbao allegedly replied that there had been a misunderstanding, but that the matter would settle down. Then, the next day, the witness claimed he drove Gbao from his house to play draughts as he usually did, and Gbao spent most of his day doing so. On the third day, the witness was allegedly at the roundabout with Gbao when RUF commanders arrived with trucks full of Zambian UNAMSIL personnel. The witness was then asked by Issa Sesay to take these troops to Kono, and he did so, apparently without Gbao’s knowledge.

Mr. Jordash asked Witness DAG-111 some quick questions about how these Zambian peacekeepers were treated. While the witness said he had been given no specific orders about their safety, the UN troops were treated well as far as he could tell, and that it was his understanding that they were being taken to Kono for their safekeeping.

The Prosecution began its cross-examination of this witness by attempting to characterize Gbao’s position of IDU commander as having many RUF fighters under his control, but the witness repeatedly said that such things were not to his knowledge. Justice Itoe seemed a little incredulous of this statement, verifying that the witness said he did not know this even though he had lived with Gbao for such a long time. The witness did agree that he observed RUF fighters coming to visit Gbao to give reports. In claiming that he also didn’t know about such things as the other security units, the harassment of civilians, or the command structure of the RUF, the witness repeatedly asserted that he was just a driver, to which Itoe stated that unless he was a “blind” driver, it was better for the witness just to say that he did not know. The Prosecution also tried to get the witness to speak about Gbao’s views of disarmament, but the witness said he did not know about them, even though he agreed that Gbao was an outspoken man who made his views known. The Prosecution then basically went through what the witness had already said, trying to get the witness to agree that Gbao was extremely angry the whole time and that Gbao had planned to meet other commanders at Makumb. However, the witness stuck to his version of events, stating how calm Gbao was after his initial conversation with Kenyan peacekeepers. The witness also insisted, despite accusations from the Prosecution that he was lying, that Gbao had no knowledge that the witness was taking the UN troops to Kono and was angry upon the witness’s return. Finally, perhaps undermining his credibility a bit, the witness insisted that he had never seen a child soldier nor heard of child fighters in his lifetime. After repeated and aggressive questioning from the Prosecution, the witness admitted that he used to hear about children fighting for the RUF on the radio and such, but that he did not know anything about it. Interestingly, the Prosecution asked the witness to name the second commander to fire shots, and the witness was allowed to do so, stating that it was Morris Kallon. When the defense counsel for Kallon later asked for this testimony to be stricken from the record, the bench told her to submit any legal arguments she may have in a written motion or in her final briefs, refusing to hear her concerns at this time.

After Witness DAG-111’s testimony concluded on Thurs. afternoon, Cammegh announced that there was only one witness left, an expert for the common defense, and that he would be available to testify on Monday morning. His testimony, including cross-examination, is expected to conclude by Tues. June 24.