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Home Articles posted by Charles Jalloh

Kenya Should Reconsider Proposed Withdrawal from the ICC

Published on September 18, 2013        Author: 

picture_2Charles C. Jalloh is currently a Visiting Associate Professor at the Florida International University College of Law and an Assistant Professor at the University of Pittsburgh, School of Law.

On September 6, 2013, a majority of Kenya’s National Assembly voted in favor of a motion, introduced by the Leader of the Majority Party, Aden Duale, urging the government to “urgently undertake measures to immediately withdraw” the influential East African nation from the Rome Statute which established the International Criminal Court (ICC). The motion claimed that there has been a “fundamental change in the circumstances relating to the governance” of the country given that President Uhuru Kenyatta and Vice-President William Ruto, both of whom are under indictment by the ICC for alleged involvement with crimes against humanity, were “lawfully elected” under the Constitution of Kenya [PDF] on March 4, 2013.

The motion, which also resolved to soon table a law that would repeal the country’s International Crimes Act, which domesticated the Rome Statute, raises several important issues at the intersection of law and politics. I argue that there are compelling legal reasons why the Kenyan government should not heed what the opposition party has described as an “ill considered” recommendation urging the executive branch to make Kenya the first and only country to withdraw from the ICC.

I submit that the reputational and other costs of withdrawing from the ICC regime for Kenya far outweigh the largely symbolic political benefits that might be gained from any such withdrawal. This is all the more so because such a move will have no legal effect on the ongoing cases against the three Kenyans indicted by the Court.

Read the rest of this entry…

 

Why the Special Court for Sierra Leone Should Establish an Independent Commission to Address Alternate Judge Sow’s Allegation in the Charles Taylor Case

Published on October 1, 2012        Author: 

Charles C. Jalloh is Assistant Professor, University of Pittsburgh School of Law, Pennsylvania, U.S.A.; formerly the Legal Advisor to the Office of the Principal Defender, Special Court for Sierra Leone and duty counsel to former Liberian President Charles Taylor. He blogs at International Criminal Law in Ferment

Introduction

On April 26, 2012, after Presiding Judge Richard Lussick read out the summary of Trial Chamber II’s long awaited verdict in the case Prosecutor v. Charles Taylor at the Special Court for Sierra Leone (“SCSL”), sitting in The Hague, Alternate Judge El Hadj Malick Sow controversially proceeded to issue his own “dissenting opinion”.

The way in which the Trial Chamber reacted to Alternate Judge Sow’s decision to make a public statement on the Taylor Trial; the exclusion of his statement from the official transcript of the hearing; and the recent information suggesting irregularities in the process which the SCSL judges invoked to discipline their judicial colleague for alleged misconduct all underscore the need for greater transparency on this issue than we have so far received from the SCSL.

This article argues that it is time for the SCSL to establish an independent fact finding commission, with a narrowly framed and time limited mandate, to establish the truth, or falsity, of the allegation that Alternate Judge Sow made during the delivery of the Taylor Trial judgment that there were no (serious) deliberations by the three judges who convicted the accused and sentenced him to 50 years imprisonment. Such a commission could also determine the extent to which, if any, Taylor’s fundamental right to fair trial under Article 17 of the Statute of the SCSL was impacted. The proposal for an ad hoc fact finding commission would demystify what happened during deliberations and can be concurrent with Taylor’s current appeal. It therefore will not delay the conclusion of the tribunal’s work. Read the rest of this entry…

 

The Verdict in the Charles Taylor Case and the Alternate Judge’s “Dissenting Opinion”

Published on May 11, 2012        Author: 

Charles Jalloh is Assistant Professor, University of Pittsburgh School of Law, Pennsylvania, U.S.A.; formerly the Legal Advisor to the Office of the Principal Defender, Special Court for Sierra Leone and duty counsel to former Liberian President Charles Taylor. He blogs at International Criminal Law in Ferment and we are grateful to him for accepting our invitation to contribute this piece to EJIL:Talk!

1.      Introduction

On 26 April 2012, Trial Chamber II of the United Nations-backed Special Court for Sierra Leone (SCSL) sitting in The Hague, comprised of Judges Richard Lussick, presiding; Julia Sebutinde, and Teresa Doherty, gave their long awaited verdict in the case involving former Liberian President Charles Taylor.

As has been widely reported since, the judges unanimously found Taylor guilty of five counts of crimes against humanity, five counts of war crimes and one count of other serious violations of international humanitarian law perpetrated by the Revolutionary United Front (RUF) rebels acting in concert with the mutinying elements of the Sierra Leone Army known as the Armed Forces Revolutionary Council (AFRC) in the period between 30 November 1996 and 18 January 2002.

Taylor was convicted as a secondary perpetrator, i.e. as a planner and aider and abettor, of murder, rape, sexual slavery, enslavement, other inhumane acts, acts of terrorism, pillage, outrages upon personal dignity, violence to life, health and physical or mental well-being of persons, in particular murder and cruel treatment, and conscripting or enlisting children under 15 years into armed forces or groups or using them to participate actively in hostilities.

Although the Chamber has not yet issued its authoritative trial judgment setting out the full reasoning behind its conclusions, the judges made some significant factual and legal findings in the 44-page “summary” that Presiding Judge Lussick read out in open court for about two hours. Having convicted Taylor, they fixed 16 May 2012 for an oral sentencing hearing with each of the parties allocated one hour to address the Chamber. Taylor was offered up to half an hour to make a statement, should he so wish. The sentencing judgment will follow two weeks later (on 30 May 2012).

Taylor is the first former President to have been indicted, fully tried and now convicted in an international criminal tribunal since the immediate post-World War II trial of German Admiral Karl Doenitz at the Nuremberg International Military Tribunal. Not surprisingly, many thoughtful legal commentators have already weighed in on key issues raised by the verdict. These include the Chamber’s findings on Joint Criminal Enterprise, Command Responsibility and Gender Crimes (see, for example, Bill Schabas, Diane Marie Amman, Jens Ohlin, Valerie Oosterveld, Kelly Askin).

 2.     An Omission and a Problem

Briefly mentioned by Kirsty Sutherland, Kevin Heller and Bill Schabas, but not as well discussed (with the exception of Jennifer Easterday and Sara Kendall), was the weighty decision of the alternate (fourth) judge in the Taylor Trial, El Hadji Malick Sow, to enter a “dissenting opinion” to Trial Chamber II’s unanimous judgment.

In this post, I examine Alternate Judge Sow’s views on the verdict. I argue that, while his statement gives cause for concern, and ultimately reflects the tension throughout the trial between him and the other three judges, expressing public views on the verdict was unfortunate because the effect might be to impugn the credibility and legitimacy of an otherwise fair trial that met the due process standards of the SCSL Statute and international human rights law. Read the rest of this entry…