Sunday, 8 August 2010

More on Campbell's Testimony, and What to Expect on Monday

It is reported that Mia Farrow will testify before the Special Court for Sierra Leone next week, as well as Naomi Campbell’s former agent, Carole White. Presumably, the purpose of the testimony is to contradict what Naomi Campbell said in her testimony on Thursday.
I have read the entire transcript, and conclude that Campbell’s evidence cannot be of assistance to the Prosecutor in the case against Charles Taylor. She says that while staying at Nelson Mandela’s house in 1997 she was awakened in the middle of the night by a knock on the door and given a few small uncut diamonds, but that she does not know who gave them to her. At breakfast the following morning she told this to her agent, Carole White, and to Mia Farrow, who were also staying at the Mandela residence. Mia Farrow apparently replied that this must have been a gift from Charles Taylor, who was also staying in the house. But since Farrow only learned of the gift from Campbell, she is not really a witness to anything.
The purpose of calling Naomi Campbell, according to the decision authorizing the subpoena of 30 June 2010, was to provide direct evidence that Charles Taylor was in possession of rough diamonds. But if Campbell says she doesn't know where the diamonds came from, all that her evidence shows is that someone at the Mandela residence on the night she stayed there in 1997 was in possession of rough diamonds. I suppose it could have been Charles Taylor. But there were many people in the house that night.
Farrow and White have both given statements to the Prosecutor, and they have ben disclosed to the defence. Taylor’s defence counsel referred to these statements when he cross-examined Campbell on Thursday, repeatedly asking Campbell if the various components of the statements by Farrow and White were lies, to which Campbell regularly replied in the affirmative.
After the cross-examination was complete, the Prosecutor re-directed some questions, and challenged Campbell, saying ‘Isn’t it correct that your account today isn’t entirely truthful…’
Defence counsel promptly objected, saying that the Prosecutor was in effect cross-examining her own witness, and that this was not proper. The presiding judge agreed, saying that the Prosecutor could not challenge her own witness. Then the Prosecutor said that Campbell wasn’t really her witness, as she had been compelled to testify by subpoena, to which the presiding judge said: ‘Ms Hollis, if this witness is not a Prosecution witness, whose witness is she?’
All of this suggests that if Farrow and White are only being produced to question the truthfulness of the version Campbell gave the Court on Thursday, the defence will object immediately and the objection will be sustained. You don't call a witness to prove that your previous witness was a liar. And even if this were allowed, would would it prove? If Naomi Campbell's credibility is demolished, then her testimony is worthless and we are back to square one. You cannot use the testimony of a witness to prove the contrary of what a witness said by establishing that they lied.
Can there be more to this? It seems clear that Farrow cannot know anything other than what Campbell told her about the gift of the diamonds, so her evidence should not be admissible. As for White, there was a suggestion in the testimony on Thursday that White may have seen the individuals give the diamonds to Campbell, in which case she might have material evidence that could possibly implicate Taylor. This might strengthen some link between the men who gave Campbell the rough diamonds and Charles Taylor. It would still be a pretty flimsy link.
As the defence counsel noted, however, White launched a civil suit against Campbell for breach of contract almost a year ago, and this cannot enhance her credibility. Apparently all of this came to light a couple of weeks after White filed the civil suit. There is a contemporary issue between White and Campbell that makes competing versions of conversations that took place thirteen years ago of doubtful utility.
This raises another issue of some interest. Campbell claimed she was compelled to testify before the Court, and it is a fact that faced with her refusal to cooperate with the Prosecutor, on 30 June 2010 the Chamber decided to issue a subpoena. This is provided by the Rules of Procedure and Evidence of the Court. But it seems highly doubtful that the authority to issue a subpoena extends beyond the territory of Sierra Leone. In its 30 June 2010 ruling, the Chamber invoked Resolution 1688 of the Security Council. This is the resolution by which Charles Taylor was transferred to The Hague. Operative paragraph 4 of the resolution ‘Requests all States to cooperate to this end, in particular to ensure the appearance of former President Taylor in the Netherlands for purposes of his trial by the Special Court, and encourages all States as well to ensure that any evidence or witnesses are, upon the request of the Special Court, promptly made available to the Special Court for this purpose’. Compare the language with that of Resolution 1593, by which the Council referred the Situation in Darfur to the International Criminal Court. There, it ‘Decides that the Government of Sudan and all other parties to the conflict in Darfur, shall cooperate fully with and provide any necessary assistance to the Court and the Prosecutor pursuant to this resolution’. I’m looking for the magic word decides in Resolution 1688.
The subpoena itself threatens Naomi Campbell with detention of seven years and a fine of two million leones (the Sierra Leone currency). Leones! To be imposed upon an individual resident in the United Kingdom for failure to appear in The Hague! If the Court really had such a power, we’d expect to see a fine in dollars or in euro. And where would they detain her? The Court would need an agreement with another sovereign state in order to do so, and I don’t believe it has one. Perhaps Naomi Campbell’s lawyers did advise her that she did not need to appear before the Court. Perhaps she decided to do so anyway, as a good international citizen. The suggestion she made that she was forced to appear does not hold water.
The subpoena issue has been subject of some debate in International Criminal Court circles, where it is a surprise to many that the Court has no subpoena power. The International Criminal Court is premised on voluntary appearance by witnesses. Those who find this to be some fatal flaw should be aware that it is a very rare event for a party to criminal proceedings to subpoena a reluctant witness. Parties request witnesses to testify when they assume they will be cooperative and helpful. Wise lawyers know that it will rarely help their case to force someone to testify. If the Prosecutor of the Special Court needed to be reminded of why this is so, Naomi Campbell did a good job on Thursday.

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