Reports
Weekly Report on RUF Trial – Summary for the Week of June 23-June 27 2008
By SLCMP
Jul 4, 2008 - 7:41:16 AM

This week brought the case for Augustine Gbao’s defense to a close, marking the end of the presentation of evidence by all of the accused. Only one witness was called to the stand, Mr. Johan Hederstedt, a military expert serving as a common witness for both the Sesay and Gbao defense teams. Mr. Hederstedt brought the number of witnesses called by the Gbao defense to a total of eight. Mr. Hederstedt, a retired general from the Swedish Armed Forces, was asked by the Sesay and Gbao defense teams to write a report regarding (1) his evaluation of the RUF as a military force in light of his knowledge of both guerilla movements and conventional armies and (2) issues of command and control within the RUF arising from that evaluation. However, before the expert could discuss his report, the court dealt with objections and concerns regarding the expert’s specific area of expertise, what he would be testifying to, and a lack of disclosure on the part of the defense as to the methodology and information relied on by the expert in preparing his report. For its part, the Prosecution used its cross-examination to call Mr. Hederstedt’s expertise into question and to try to use his findings to support its version of the case.

Monday morning began with debate in the courtroom over Mr. Hederstedt’s precise area of expertise. As Wayne Jordash, counsel for the First Accused, directed the bench to the expert’s CV and extensive dealings with guerilla movements, the Prosecution gave notice that it would be formally challenging the expertise of the witness. Mr. Jordash then walked the expert through his resume, noting his work with peacekeeping operations in Lebanon, Sinai and Gaza; his role as military advisor to the U.S. during the Gulf War; his teaching on guerilla warfare and peacekeeping structures as a course director in Sweden, and his service in other military positions at high levels within the Swedish army, including Supreme Commander of Swedish Armed Forces from 2000 to 2003. The general had also been on fact-finding trips to trouble spots all over the world, including Iraq, Iran, the Democratic Republic of Congo, Cyprus, and he was on the ground for some time during the Balkan conflict.  Overall, Jordash tried to highlight the fact that the general had spent time both serving for a conventional army and studying guerilla movements, which included meeting with numerous guerilla leaders.

Jordash then turned to the expert report itself, getting permission from the court to lead the witness in asking about the tasks he undertook on behalf on the defense. Mr. Hederstedt said that he was approached to consider a series of questions and to note some of the common characteristics of guerilla/insurgency movements.  These questions included: (a) how would he define/describe the RUF as a military organization between 1996 and 2000? (b) what were the most important factors impacting RUF structure? and (c) what factors would he have expected to impact Issa Sesay’s ability to control lower-ranking combatants? The defense then gave Mr. Hederstedt summaries of the transcripts from the testimony of a number of witnesses that had been called by both the prosecution and the defense, asking him to read them and consider, on the overall basis of the evidence (trying to reconcile contradictory testimony), the command structure of the RUF. Mr. Hederstedt also made a one-week fact-finding visit to Sierra Leone in late February/early March during which he visited the provinces and was accompanied by two members of the defense team, one of whom was Francis Musa, who formerly served in the RUF. Finally, Mr. Hederstedt said that he had studied the literature and had contacted an expert on guerilla warfare to find out if there had been any marked changes in recent years.

During Jordash’s direct examination, the Prosecution repeatedly told the court it had not been aware that the report was based on summaries of transcripts, that it had not seen these summaries, and that it did not feel such summaries were a credible basis for such a report. The Prosecution also took issue with the fact that it had been given no notice of Mr. Hederstedt’s visit to Sierra Leone or his communications with members of the defense team, including Musa. Finally, the Prosecution objected to any line of questioning that dealt with conclusions not contained within the report, saying that such testimony should now be precluded. Jordash fought back by saying that the challenges concerned methodology, or how the report came into being, and that the court had given no mandate as to what an expert report should contain. Jordash also repeatedly referred to two expert witnesses called by the Prosecution, who he claimed had both been allowed to testify about evidence not accessible to the defense. In contrast, he argued that the Prosecution was familiar with all of the witnesses and their testimony, and therefore knew all of the evidence that Mr. Hederstedt’s report was relying on. After a break to consider the issues, the Trial Chamber announced that it would allow Jordash’s questions regarding the report but would at the appropriate time decide how much weight to give to the expert’s testimony.

Jordash continued his examination by having the expert discuss how the RUF reflected many of the common practices utilized by typical guerilla movements, including in its internal structure and its tactical approach. Mr. Hederstedt went on to describe the three phases common to guerilla movements, which he also saw exhibited by the RUF in its progression over time: (1) very light guerilla organization, unable to defend strongholds or take over land (2) organization more like a national protection structure, with a military police organization in place, and (3) organization more like a regular army structure with the tactical use of counteroffensives. Supporting the defense theory that RUF ideology included the humane treatment of civilians, Mr. Hederstedt testified that popular support from civilians is crucial for guerilla movements, and therefore the RUF would likely have treated civilians well. He even went so far as to say that he has never seen a guerilla movement that was able to sustain itself without the support of the population, citing the Taliban in Afghanistan as an example. Additionally, supporting the defense’s claim that the lack of hierarchal structure in the RUF precluded any type of effective control by its commanders, Mr. Hederstedt testified that most guerilla movements have a flat structure, meaning that the different commanders have their own responsibilities and area to fulfill individual tasks. Hederstedt also stated that a lack of strong communication, combined with decentralization of forces, meant that lower commanders wouldn’t feel controlled from above and would act freely.   Finally, the expert spoke about the selective use of terror by guerilla movements, saying that it was used mostly at the beginning of such insurgencies; the defense perhaps feels this statement will contradict some of the specific charges in the indictment that arise from later periods of the war.

Controversy again arose when Jordash attempted to read part of Issa Sesay’s testimony to the client. The Prosecution objected on the basis that the report submitted to the court should have contained all the evidence and new documents could not be put to the witness now. Jordash’s response was mainly that he found it incomprehensible that an expert report could contain everything that an expert is going to say in his testimony. In settling the matter, Justice Itoe emphasized that in putting questions to the expert based on what Sesay said, Jordash would essentially make Sesay the expert in the case, since the expert would be making conclusions based on Sesay’s version of events. Thus, the Chamber held that Jordash’s examination must be limited to the report that was compiled.

Jordash continued his examination of the expert on Tuesday morning, asking only a few additional questions about the command and control methods of modern armies, including their reliance on good communications systems. Mr. Hederstedt stated that modern armies are adopting many practices from guerilla movements, but that the guerillas themselves mainly lack the control functions these armies now have. He also testified that within the RUF, in his opinion, many sub-leaders and area commanders acted independently. However, as soon as Jordash began asking about the section of Mr. Hederstedt’s report titled “Factors Expected to Impact Sesay’s Ability to Control Members of the RUF,” the Prosecution raised another objection, referencing the Ultimate Issue Rule, which states that an expert witness cannot speak to facts or conclusions that ultimately must be found by the Trial Chamber. Another extensive debate ensued, with Justice Thompson remarking that the Trial Chamber must be vigilant in not allowing experts to usurp the function of the bench by drawing conclusions on any aspect of the charges. The Prosecution also asserted that it would be objecting to the admission into evidence of a large part of the report.

Beaten down, Jordash asked a few final questions and then applied for the admission of the expert’s CV, additional background information, and expert report into evidence. As promised, the Prosecution objected to the admission of the report, citing case law from the ICTY and from Trial Chamber II in the AFRC case. In response to Justice Itoe’s order to cite what portions offended the Ultimate Issue Rule, Mr. Harrison for the Prosecution went through the report paragraph by paragraph, explaining his objections. Jordash responded by stating that the phrase “ultimate issue” must be limited in meaning and by citing his own case law. After a recess, the court announced that it had found as a matter of fact that some paragraphs in the expert’s report offended the Ultimate Issue Rule, and that it would later come out with a written statement as to which sections these are. However, the Chamber also decided to admit the document into evidence in its entirely for the time being.

Mr. Harrison for the Prosecution then began cross-examining Mr. Hederstedt, seemingly more concerned with undermining the expert’s credentials than the conclusions he had drawn (which had already been attacked by the Prosecution through the Ultimate Issue Rule). Harrison attempted to downplay the expert’s experience by highlighting the limited amount of time he had actually spent on the ground and the fact that he was engaged in full-time duties other than the study of guerilla movements during those times. Harrison also emphasized that the expert’s experiences would have been no different than other peacekeepers or military personnel in the same locations. However, the expert continually noted that he had been involved in negotiations and had held numerous meetings with guerilla leaders, making his experiences somewhat different. Still, Harrison made a strong point when Mr. Hederstedt agreed that he had never had personal experience with guerilla movements in West Africa. The Prosecution also tried to distinguish other guerilla movements that Mr. Hederstedt had studied by pointing out that conflicts elsewhere were based on different factors, such as religious disputes or ethnic conflict; the expert agreed to an extent but also stated that there were many similarities in those situations as well.

 
The Prosecution also asked about what information Mr. Hederstedt had relied on in compiling his report, including extensive questions about the expert’s interactions with Francis Musa during his fact-finding trip to Sierra Leone. While Mr. Hederstedt said he did not rely primarily on information he got from his escorts, he admitted that there were small things he used in his report, including how the IDU and G5 functioned. Finally, Mr. Harrison turned to the report itself, asking very tedious questions about specific sentences or paragraphs. As the Prosecution’s questioning continued into late afternoon, Justice Itoe asked for a tea break, commenting that Harrison seemed very far from finishing. Perhaps getting the hint, Harrison was much more to the point following the court’s recess, asking questions specifically related to the charges in the indictment. For instance, Harrison asked whether criminality, looting, the use of child soldiers, and the selective use of terror by combatants are common to guerilla movements. Mr. Hederstedt agreed that these were common features but said they were common in modern armies as well, and that he could not speculate as to the reasons behind all such actions. The expert also agreed with the Prosecution that the structure of the RUF did not fit into any of the typical phases of a guerilla movement during the time that it joined with the AFRC following the junta in Freetown, a point that fit into the Prosecution’s argument that the RUF was simply different from other guerilla movements.

The end of cross-examination marked the end of this phase of the RUF trial. Addressing some motions that still needed to be decided by the bench, Justice Itoe said that the Chamber hoped to release all outstanding written decisions by Friday. The presiding judge went on to thank and congratulate the counsel for both sides, along with all figures who had worked with the court, including translators, technical assistants, court management officers, stenographers, interns, court monitors, and so on.  

Final trial briefs are due by July 29, 2008, and closing arguments will take place on August 4 and 5, followed by a judicial recess preceding final judgment.