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!
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.
3. The Provision for Alternate Judges at the SCSL
In providing for the composition of the Chambers in the Agreement between the UN and the Sierra Leone government on the Establishment of the SCSL, Article 2(2) anticipated the appointment of up to two alternate judges which, upon the request of the President of the SCSL, can be designated by the Presiding Judge of a trial chamber or the appeals chamber “to be present at each stage of the trial and to replace a judge if that judge is unable to continue sitting”. The same provision is repeated in Article 12(4) of the Statute of the SCSL.
The Rules of Procedure and Evidence (the Rules) shed further light on the role of the alternate judge. Under Rule 16 bis (A), they confirm that “an alternate judge designated in accordance with Article 12(4) of the Statute shall be present at each stage of the trial or appeal to which he or she has been designated”. Even though the alternate must always be present, under Rule 16 bis (B) to (D), the limited backup role that he is supposed to play is evident. His switch from reserve to active judge also requires a predicate decision by the Presiding Judge after consultation with the other judges.
4. The Appointment of Judge Sow as the Alternate Judge of Trial Chamber II
The above provisions of the UN-Sierra Leone agreement, the SCSL Statute and the Rules languished in desuetude until Judge Sow was appointed as the first alternate judge. This followed on a recommendation by the late Antonio Cassese, who in the context of a comprehensive expert report evaluating the functioning of the SCSL, observed that the Taylor case was of “central importance to the success” of that tribunal.
For this reason, given that that the case would start much later after the other SCSL trials had been completed and would extend the tribunal’s lifetime, he recommended the appointment of an alternate judge so that the Taylor Trial would “run smoothly and not falter”. Cassese rightly observed that the money spent on an alternate judge that would sit at each stage of the trial to replace a judge who is unable to continue sitting for whatever reason, consistent with Article 12(4) of the Statute of the SCSL, was worth the cost – even for the notoriously cash trapped Sierra Leone court. He warned that the consequences would be worse if the tribunal “gambled” with the continuity of “such an important case” so late in its expected lifespan.
The UN and Sierra Leone took on board the Cassese recommendation, and on 9 May 1997, about three weeks before the Taylor Trial was scheduled to open in The Hague, Judge Sow was sworn in. The press release on the swearing in ceremony at the seat of the tribunal in Freetown, the Sierra Leonean capital, affirmed that he had been appointed, pursuant to Article 12(4), so that he could replace a judge of the Trial Chamber if that judge is unable to continue sitting. Alternate Judge Sow has thus been present throughout the Taylor case, from the prosecution’s opening statement on 4 June 2007 to closing arguments on 11 March 2011.
5. Alternate Judge Sow’s Verdict: “Dissenting Opinion” or Public Statement?
While it is not known when Trial Chamber II will make the official Judgment available, although this would likely have to be before or around the Sentencing Judgment on 30 May 2012, the unofficial 44-page summary Judge Lussick read on verdict day indicated that there was a “reasoned opinion in writing” but did not mention any separate opinions. What is certain is that, since the Chamber’s verdict was “unanimous”, there will be no “dissenting opinion” from any of its three judges.
Against this backdrop, it was therefore surprising that, after the Presiding Judge concluded delivery of the Chamber’s verdict, Alternate Judge Sow tried to give his “dissenting opinion”. Yet, the SCSL Rules, which are based on those of the International Criminal Tribunal for Rwanda, indicate that although the alternate judge must be present for deliberations, he “shall not be entitled to vote thereat” (see Rule 16 bis(C)). This makes sense since the idea is that the alternate should be able to step in at a moment’s notice, whenever necessary, to ensure the continuity of the trial if, for whatever reason, one of the other three judges are unable to continue sitting. This, of course, was not the case in this instance.
Alternate Judge Sow essentially performs the judicial equivalent of the role of standby counsel in U.S. criminal trials where the accused chooses to exercise his Constitutional (Sixth Amendment) right to self-representation. Standby counsel will follow the trial and step in if the pro se defendant is unable to continue defending his case. In the international criminal tribunals, the provision for alternate judges is also not new and in fact dates back to the origins of International Criminal Law in the immediate post-World War II period. In recognition of the important reserve role that they play during the proceedings, the SCSL Rules permit the alternate judge to pose questions which are necessary for his understanding of the trial but must do so through the Presiding Judge. Alternate Judge Sow asked questions on a few occasions during the evidentiary phase of the Taylor case, but he always addressed the parties directly, rather than “through” the Presiding Judge.
Given the various limitations imposed by the SCSL Statute and Rules, Alternate Judge Sow’s public remarks on the Trial Chamber’s verdict amount to a public statement or commentary, and unlike his contention, does not have the legal character of a “dissenting opinion” – at least as that term is understood under the tribunal’s instruments. True, under ordinary English usage of the term, it is a “dissent” (a term originating from Latin: dissentire, i.e. to ‘differ in sentiment’), because as the Concise Oxford English Dictionary confirms, he expressed “disagreement with a prevailing view or official decision”. While he is clearly entitled to formulate his private views on the sufficiency of the Prosecution evidence against Taylor, the public commentary he gave seems designed, if not in purpose but in effect, to undermine the public confidence in the credibility of the tribunal.
As it seems unlikely that the other judges were aware of Alternate Judge Sow’s plan to “dissent” in court, concerns about propriety might have prompted them to hurriedly depart the courtroom at the same time that his microphone was reportedly cut off. Although the statement extracted below was captured by the Court stenographers, but apparently struck from the official version of the transcript, it was later widely circulated on the Internet:
The only moment where a Judge can express his opinion is during the deliberations or in the courtroom, and pursuant to the Rules, when there is no serious deliberations, the only place left for me in the courtroom. I won’t get — because I think we have been sitting for too long but for me I have my dissenting opinion and I disagree with the findings and conclusions of the other Judges, because for me under any mode of liability, under any accepted standard of proof the guilt of the accused from the evidence provided in this trial is not proved beyond reasonable doubt by the Prosecution. And my only worry is that the whole system is not consistent with all the principles we know and love, and the system is not consistent with all the values of international criminal justice, and I’m afraid the whole system is under grave danger of just losing all credibility, and I’m afraid this whole thing is headed for failure. Thank you for your attention. [Emphasis added].
The preliminary question arises whether Alternate Judge Sow was entitled to give views on Taylor’s ultimate guilt or innocence in Chambers, let alone in public. Rule 16 bis (C) does specify that the alternate judge shall be present “during the deliberations of the Trial Chamber”. At first blush, there is a measure of ambiguity in this provision because mere presence does not imply the right to participate, as an equal, in the deliberations. But the last part of Rule 16 bis (C) does remove that ambiguity because it explicitly says that the Alternate Judge “shall not be entitled to vote” during the deliberations. Consequently, even assuming arguendo that he had been asked during deliberations to offer his take on the evidence, say as a matter of judicial courtesy to a colleague, in the final analysis, he would have had to be content with sharing those views privately because he is not, at the level of principle, entitled to vote on the outcome. Otherwise, we contravene the statute and violate longstanding international criminal tribunal practice which only provides for three professional judges to adjudicate a case.
As an experienced and respected Senegalese jurist, Alternate Judge Sow must surely know that, under Rule 29, “the deliberations of the Chambers shall take place in private and shall remain secret”. Nonetheless, in his above statement, he alleged that he never got the opportunity to express his views in Chambers because there were “no serious deliberations”. Without more detail, and given that deliberations take place in secret, the full weight and implication of his allegation is hard to unpack. It seems obvious that he felt that he should have been given the chance to share his opinion on the prosecution’s evidence against Taylor. That said, besides his own limited involvement presumably because of his statutorily limited mandate as an Alternate Judge, it would be a serious cause for concern if a group of three professional judges, who by the terms of the SCSL Statute must possess the qualifications required in their respective countries for appointment to the highest judicial offices, would convict – and soon sentence – a man for some of the worst crimes known to law without engaging in “serious deliberations”, especially in a complex and historic trial like Taylors.
Yet, for the credibility and legitimacy of the SCSL’s justice process, one should not ignore Alternate Judge Sow’s public comment on the trial verdict because of the serious allegations it makes. For one thing, it is plausible that, fully aware of these limitations imposed by the governing provisions discussed earlier, he had become so concerned about the procedural irregularities and the outcome of the case that adherence to the constraints imposed by the Statute and Rules seemed unworthy at the level of principle. Although highly vague, and perhaps reflecting the best of good intentions, what he has succeeded in doing instead is to invite public speculation about his statement especially considering his remark that: “And my only worry is that the whole system is not consistent with all the principles we know and love, and the system is not consistent with all the values of international criminal justice, and I’m afraid the whole system is under grave danger of just losing all credibility, and I’m afraid this whole thing is headed for failure.”
All does not seem lost, however, since even Alternate Judge Sow acknowledged that there were some deliberations in the case. His main objection appears to be that they were not “serious” enough to justify the guilty verdict. Although, again, it should be clear that it is possible that there were many more deliberations of which he was simply unaware. Yet, that too does not resolve the alleged mischief because of the legal requirement that he had to be present under the relevant provisions. In any case, perhaps because of his recognition that the decision to speak out publicly about private judicial matters would be controversial, he suggested that he essentially was left no choice but to air his views in the last place possible: the courtroom.
6. A History of Confusion About the Proper Role of the Alternate Judge
Regrettably, this latest drama in the Taylor Trial regarding the reserve judge is not the exception. Throughout the trial, there appeared to be a fundamental misunderstanding of or even disagreement and discord among the Trial Chamber II judges regarding the function and place of the alternate judge. This does not seem farfetched, considering that Judges Lussick, Doherty and Sebutinde sat alone as Trial Chamber II for years, without any alternate judge, in another SCSL matter in Freetown: the three-accused AFRC Trial (which also happened to be the seminal first case to ever be completed by the SCSL).
On 9 February 2011, Judges Doherty and Lussick, in a majority decision, issued an order directing Courtenay Griffiths, QC, the lead counsel for Mr. Taylor, to appear before the Chamber to apologize for refusing to remain in court when he had been ordered to do so by the Presiding Judge or face the prospect of disciplinary sanction. One of the judges dissented from that directive.
On the date selected for the hearing, 25 February 2011, only Judges Doherty, then presiding, and Judge Lussick and Alternate Judge Sow attended court. Judge Sebutinde refused to show up, sending an explanatory note to her colleagues that morning instead, saying that she had absented herself from court for reasons of principle. This despite that disagreement with a majority decision does not constitute a valid legal reason for a judge to refuse to attend court. She later explained that she was opposed to any “side proceeding” against counsel that could distract the Court and potentially delay completion of the Taylor Case.
The question was how to proceed with the hearing. Presiding Judge Doherty asked counsel to address them on the issue. Defense counsel conferred for less than a minute and then suggested the obvious: the Chamber should invite Alternate Judge Sow, who was present, to participate so that the bench would be constituted of three regularly constituted judges. Judge Sow responded in a way that exposed both his understanding of his role as a reserve judge and the acrimony in chambers:
Let me make this very clear: This Bench is regularly composed with three judges sitting, as it shows. Two judges cannot sign decisions. When the Bench is sitting, it’s sitting with three judges, not two judges, and I don’t know what. I’m not here for decoration. I am a judge. This Bench is regularly composed, as everybody can see. I don’t know how people can think that two judges – I don’t know where in this world you will see two judges sitting. It’s not possible. This Bench is regularly composed with three judges. This is my comment. No matter how parties will look at it, it shows and it’s apparent that this Bench is composed with three judges. We are three judges sitting.
But, in a fluid move showing that Presiding Judge Doherty and Judge Lussick had discussed the matter before court but had foreclosed the possibility of Alternate Judge Sow serving, she did not respond directly. Rather, she immediately issued the Court’s ruling and then adjourned the hearing, as follows:
The Articles governing the composition of this Court and the Trial Chamber mandate that it is to be composed of three judges. This is not a situation where rule 16 applies. Accordingly, in our view, this Trial Chamber is not properly constituted and we consider we have no alternative but to adjourn this hearing today. The matter is adjourned for a date to be fixed. Please adjourn the Court.
This decision can be criticized on several grounds. A key one is that if, as the Chamber found, Rule 16, which spells out the regime applicable to judicial absences, resignations and alternate judges did not apply, then what rule would? The Court did not explain. It instead left the question open, leaving some commentators to speculate what dispute was going on among the judges. And even if, for the sake of argument, we accept that there was a lacuna in the Rules, which as I will argue shortly there was none, could the Chamber not have invoked its inherent powers to regulate its proceedings to then invite Alternate Judge Sow to participate on the Bench so that it was regularly constituted of three instead of two members? Would anyone have faulted them, considering that the party most affected by the disciplinary issue under consideration had in fact proposed the alternate’s involvement?
Be that as it may, under Rule 16 bis (D), the Presiding Judge could have plainly asked Alternate Judge Sow, following consultation with the other judge present, “to perform other such functions” that the Trial Chamber deemed necessary. This could include stepping in when a judge was voluntarily absent, for whatever reason. This argument would hold, despite the seeming difficulty that Rule 16 bis (D) had been adopted on 14 May 1997, exactly five days after Alternate Judge Sow had been sworn in as judicial alternate for Trial Chamber II.
On the other hand, by comparison, the SCSL Rule on the point is somewhat less clear than its functional equivalent in the Extraordinary Chambers in the Courts of Cambodia (ECCC). In the ECCC, Rule 77(8) more clearly sets out what to do in the scenario that Trial Chamber II found itself when it provided that:
In the absence of a sitting Judge, the President of the Chamber may, after consultation with the remaining judges, decide to adjourn the proceedings or designate a Reserve Judge to sit in place of the absent Judge to ensure that the proceedings can continue. Where, however, the replaced sitting Judge is able to attend, the Chamber may, after taking into consideration all factors relevant to the case and being satisfied that the sitting Judge has been fully informed of the evolution of the case during his/her absence, decide to replace the Reserve Judge by that sitting Judge.
Either way, whether under the SCSL or ECCC rules, the conclusion would have been the same. In fact, as the defense counsel later argued in a motion, the Chamber’s “outright” and “abrupt dismissal” of Alternate Judge Sow’s offer to step in was problematic at best, and at worst, raised questions about the proper exercise of their “discretion”. Arguably, it was in fear of losing a judge’s participation and disrupting the Taylor Trial and any ancillary matters arising from it that the President of the Tribunal had designated Alternate Judge Sow pursuant to Article 12(4) of the SCSL Statute. It would have been the same reason why all the SCSL’s judges, sitting together in Plenary, would have adopted the amendment to give practical effect to that intention under Rule 16 bis only a few days after the alternate judge was sworn in.
In the end, lacking any legal value, Alternate Judge Sow’s public condemnation of the unanimous Trial Chamber II verdict serves only as cannon fodder for the pro-Taylor camps in Liberia and Sierra Leone who have always contended that his trial, and since 26 April 2012 conviction, was politically machinated. It gives credence to a frequently alleged, but equally frequently unsubstantiated, conspiracy theory that the same Western States responsible for Taylor’s fate today conspired to witch hunt other “strong” African leaders like Sudanese President Omar Al Bashir. Bashir stands indicted for genocide and crimes against humanity by the International Criminal Court, but partly because of this same argument and the lack of clarity in certain provisions of the Rome Statute, African States have collectively refused to turn him over to the ICC. What is often omitted out of this narrative is that it is also Africans that are the victims of the massive atrocity crimes committed by their own people, and also other Africans, who call for international support to ensure that the old culture of “big man” impunity is replaced with a new culture of judicial accountability. In this broader geopolitical context, the extrajudicial comments in the Taylor Case may serve only to undermine the positive legacy of accountability that President Ahmed Tejan Kabbah of Sierra Leone and UN Secretary-General Kofi Annan hoped the SCSL would bequeath to the people of Africa and the international community.