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

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.

The Role of Alternate Judges in International Criminal Trials is Settled

In a previous article, I took up the question whether there was any legal basis for Alternate Judge Sow to issue a “dissenting opinion” under the UN-Sierra Leone Agreement on the establishment of the SCSL, its annexed statute, and the tribunal’s rules of procedure and evidence. I demonstrated that, even though the provisions guaranteed the alternate judge a right to be present for deliberations, they did not enfranchise him to vote on the outcome (See Arts. 12 and 18, SCSL Statute; Rules 16 and 16 bis of the SCSL Rules of Procedure and Evidence). Consequently, I argued that as a matter of both tribunal law and practice, Alternate Judge Sow was not authorized to give his own opinion, whether separate, concurring or dissenting, on the outcome in the Taylor case. Otherwise, we violate the SCSL Statute and contradict the international criminal justice system which, to date, only provides for three professional judges to adjudicate the guilt or innocence of accused persons instead of four.

Although no legal value attaches to the conclusions of the alternate judge when the three-judge bench is regularly constituted, there appears to be some new information suggesting the need for greater transparency over the Alternate Judge Sow Affair. The new information seems fundamental because, for one thing, the allegations that alternate judge levelled appear too grave to go unanswered. Furthermore, his decision to speak out publicly has predictably assumed a central role in Taylor’s appeal. So, ignoring the issue will only serve to undermine the public perception of the fairness and credibility of the trial and the SCSL itself.

Taking up the task of determining the veracity of the allegation that has been made is one way the tribunal could reassure the accused, the victims, and the Sierra Leonean and international public about the integrity of its processes. It is also another way that it could curb the academic and public speculation that is bound to follow if the mysterious black box of chambers deliberations in this case is not opened up for the world to see what is inside.

The Court Should Publish an Official Version of Alternate Judge Sow’s Statement

The first reason why the SCSL cannot let sleeping dogs lie over this issue stems from two factors. Firstly, the unfortunate circumstances under which Alternate Judge Sow made his statement. Secondly, the lack of an authoritative record of what he did say. Taken together, the public seems left with the wrong perception that the Court was trying to silence him because he disagreed with the other three judges and dared to speak publicly about it. Since it is a truism that justice not only needs to be done, but also seen to be done, the SCSL should do everything within its power to correct any misapprehensions that may arise on this issue.

It is undisputed that Alternate Judge Sow who, following the reading of the Court’s judgment by Presiding Judge Lussick on April 26, 2012, started to read from a prepared statement. The other three Trial Chamber II judges (Richard Lussick, presiding; Julia Sebutinde and Teresa Doherty) allegedly did not know of his plans to speak. So, like everyone else, they were apparently caught off guard. Indeed, the Presiding Judge adjourned the hearing, the other three judges rose, and everyone seemed to be ready to depart the courtroom when he started to speak. Through a combination of these extraordinary circumstances, and the kind of decorum we expect from an international tribunal courtroom, the whole episode came off as if the other judges walked out on another equal judicial colleague while he was speaking.

The problem is that we do not know for how long he spoke. Rumors are circulating that his microphone was cut off. It is also unclear whether he had finished his statement. Although some of what he said seemed to have been transcribed by the Court’s stenographers, there is also no record of this on the official SCSL transcript. Presumably, this is because the hearing is typically deemed to have ended as soon as the presiding judge adjourns the proceedings. In the end, the result is that the public has no official way of verifying what he said exactly.

A review of the April 26, 2012 hearing transcript confirms that the Trial Chamber II comprised of the three regular judges, along with Alternate Judge Sow, were present. They had entered the courtroom and were ready to deliver the judgment at the scheduled local time of 11:00 a.m. After taking the customary appearances of the parties, at 11:04 a.m., Presiding Judge Lussick started reading out the judgment summary. He only finished at 1:17 p.m., two hours and 13 minutes later. The chamber had unanimously determined Taylor guilty. So, they fixed a date for the sentencing hearing. Lussick then declared the hearing closed.

It was then that Alternate Judge Sow started to speak. But there are now two versions of his statement. The first version can be found in the legal blogosphere, as exemplified by Professor Bill Schabas’ blog which reproduces what he said as follows:

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 are no serious deliberations, the only place left for me is 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.

Besides some punctuation differences, this statement is both similar and different from another version that has surfaced more recently in a defense filing before the SCSL Appeals Chamber. The difference lies in the first sentence of the second version which portrays what the alternate judge said as follows:

“The only moment where a Judge can express his opinion is during deliberations or in the courtroom, and pursuant to the Rules, when there is no ^ deliberations, the only place left for me in the courtroom.” [Emphasis added].

In contrast, the same (first) sentence in the blog version puts it this way:

“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 are no serious deliberations, the only place left for me is the courtroom.” [Emphasis added].

The substantive difference between the two versions is immediately apparent. Basically, there is a major difference in saying that there were “no deliberations” and saying that there were “no serious deliberations”. The former, if we assume for the sake of argument that the allegation is true (and it cannot be emphasized enough that we have no way of verifying this at this stage, which is why I call for an independent commission to examine the issue), would imply that the defendant’s rights have been violated because it is the function of the chamber to deliberate on the evidence in his case. The regular three judge chamber is then obligated to render a public verdict, by a majority not unanimity, although they must give a reasoned opinion in writing. That reasoned opinion may include separate or dissenting opinions, both on issues of facts and the law. (See Art. 18, SCSL Statute).

Although omitting his statement from the official record seems problematic because it gives the impression that the tribunal has something to hide, there is a solid counterargument that has been made. In their September 13, 2012 decision, the SCSL Appeals Chamber ruled that the transcript was, contrary to the defense appeal, both “accurate” and “transparent” given that the official hearing on April 26, 2012 formally closed when Presiding Judge Lussick adjourned the Court. It could not therefore subsequently include additional statements. (See Decision on Charles Taylor’s Motion for Partial Voluntary Withdrawal or Disqualification of Appeals Chamber Judges, Sept. 13, 2012 at para. 33).

This is all probably true, in light of settled practice. But given that the accused’s fundamental fair trial rights and the transparency and legitimacy of the SCSL’s processes are at stake, I beg to differ. To begin with, it is evident that the appeals judges did not concern themselves with the veracity, or lack thereof, of the alternate judge’s allegation. While in fairness the Appeals Chamber was not being asked to adjudicate the merits of that allegation, one would have thought that the court would be alive to the negative public perception that the content of the allegation entails for the outcome reached in the Taylor case. In defense of the appeals judges, one might say the issue regarding the statement had been resolved through the disciplinary process. But that would be a weak argument because that process addressed the propriety of the alternate judge’s public statement instead of the truth or not of its contents.

If this contention is correct, the question arises what, if anything, should be done to establish whether deliberations took place or not. Though there are practical difficulties with this proposal, especially a financial one for the notoriously cash trapped court, the SCSL should consider establishing an independent ad hoc fact finding commission comprised of respected former international tribunal judges and the public to establish the truth, or not, of what happened in chambers relative to Alternate Judge Sow’s allegation.

One objection to this proposal would be the argument that such a process would infringe judicial independence. The Trial Chamber judges are to be independent in the exercise of their functions, and are not to seek or accept instructions from any other source. (See Art. 13(1), SCSL Statute). As part of this, especially considering the integrity and qualifications required for their appointment as judges, once they have given their reasoned opinion in writing as required by the statute, they owe no one an additional explanation of their decision.

But this type of independent commission would not undermine judicial independence. It also would not violate the statute because no one will be seeking to influence the verdict that has already been reached in the Taylor Trial. The commission would solely examine the truth of the allegation relating to the presence, or absence of, deliberations. In other words, its role would be for the anterior purpose of establishing whether the judges followed the procedures consistent with the rights of the accused given the weighty allegation by the alternate judge, who was a close observer of that process.

Besides laying this controversy to rest, to the extent that a new fact is discovered, it could be taken into account as part of a review proceeding conducted by the Appeals Chamber during the Taylor appeal but only if it could have been a decisive factor in the trial chamber’s determination of his guilt. (See Art. 21, SCSL Statute). In such an instance, if the irregularities are not so fundamental as to invalidate the trial judgment, the appeals judges could exercise their discretion to reduce Taylor’s sentence to remedy any violation of his rights that might have occurred at trial.

Misgivings About the Discipline Process Used Against Alternate Judge Sow

The first step the Trial Chamber took was to remove Judge Sow’s name from the trial judgment. He also did not attend the subsequent hearings such as that on sentencing. These came across as unilateral measures, taken by the Chamber, before the discipline process was even completed. Still, in the circumstances, the judges were undoubtedly justified in taking some measures to address the matter to limit the damage caused by the allegation. However, the SCSL should not leave the perception that disciplinary proceedings were initiated against Alternate Judge Sow for reasons that are political, to punish him for holding different views from the other three Trial Chamber II judges, and perhaps more significantly, that the process which led to a finding that he was “unfit” to serve as an SCSL judge was tainted or flawed because it did not comport with the most basic principles of natural justice.

The Legal Basis for Complaint about Unfitness to Sit

Under Rule 15 bis of the SCSL Rules of Procedure and Evidence, an allegation that a judge is no longer fit to serve may be made to the President who may thereafter refer the matter to the Council of Judges. According to the recent appeals chamber decision, after the hearing on April 26, 2012, Judge Lussick sent an email on behalf of Trial Chamber II to the then President of the Tribunal, Justice Jon Kamanda. President Kamanda treated that email as the formal complaint against Alternate Judge Sow’s alleged unfitness to serve. He therefore exercised the option, as he is permitted, to refer the question to the Council of Judges.

Questions about Role of the Presiding Judge in the Council of Judges

Interestingly, although Rule 23(A) provides that the Council of Judges shall be comprised of the Presiding Judges of the Trial Chambers and the President, only one trial chamber was operational at the time of the complaint against Alternate Judge Sow. That seems important because the Council plays an initial screening role in that it first has to determine whether 1) the allegation is of a serious nature, and 2) if there appears to be substantial basis for it, it shall then refer the issue to the Plenary of all the judges which will consider the issue, and if necessary, recommend to the appointing authority what to do.

It is implied that the allegation was considered serious enough and that there was a basis for it to be passed to all the judges for consideration. But, in a single trial chamber court, if Presiding Judge Lussick, who had filed the complaint on behalf of Trial Chamber II did in fact participate in the decision, that would be odd because he effectively would have been a judge in his own cause for the predicate finding of seriousness to the allegation and the subsequent decision to refer it to the plenary. One might retort that once he filed the complaint, he stepped outside of that role as a regular judge of the trial chamber and into the role of a member of the Council of Judges. That might be true, and one way to justify his wearing of two hats. By the same token, if he participated in that second decision, and this is all admittedly speculative at this stage, it would seem wrong for the complainant judge to also participate in the decision on what do with the complaint – even if only initially.

Alternate Judge Sow’s Right to be Heard

Whatever the case, Rule 15 bis guarantees the judge that is challenged as unfit a right of response. The resolution from the Plenary, read into the Taylor Trial record by Presiding Judge Lussick on May 16, 2012, 14 working days from the date of the complaint, implied that this protocol was followed. That is how it ought to be, and was very reassuring.

Yet, in the separate opinion of Appeals Chamber Judge George King issued two weeks ago, he revealed new information alleging procedural irregularities which led him to conclude that Alternate Judge Sow’s right to be heard had been denied. Additional information hitherto unknown to the public also emerged. Even though the record of the complaint alleging unfitness to sit had been mentioned as filed on April 26, 2012, and the alternate judge was said to have responded to it on May 1, 2012, it appears that a further “six-page statement” had been prepared by Judge Sebutinde which purported to be the formal complaint against him. That document, in Judge King’s words, contained “new” and sudden “scurrilous” allegations against the alternate judge. (See Separate opinion of Justice George Gelaga King on Decision on Charles Taylor’s Motion for Partial Voluntary Withdrawal or Disqualification of Appeals Chamber Judges, Sept. 13, 2012 at paras. 5 and 8). If substantiated, that is highly disappointing, especially for a judge that hung on to be part of the Taylor Trial verdict only to then immediately take up a judicial appointment at the International Court of Justice.

Alternate Judge Sow was apparently not notified of that additional complaint in the plenary. Nor did he partake in that meeting. It is uncertain whether he was invited, but failed to appear, and if he could not be present, whether he had the option to send a legal representative to the meeting to respond to the new complaint. This is not insignificant given that Judge King raised the alarm about the impropriety of not giving Alternate Judge Sow a right of response. This “perversion of justice”, as he called it, led him to walk out of the plenary. He therefore did not endorse the formal resolution finding the alternate judge unfit to sit, and distanced himself from the decision. Ultimately, there are questions about the validity of that resolution since it is now uncertain how many judges voted in its favor, against it, or abstained. It is also unclear whether it comports with the rules since the only thing the plenary could do is recommend to the appointing authority (i.e. the UN Secretary-General and the Sierra Leone Government), a course of action which either or both are free to accept or reject.

Although Judge King’s position is laudable, for insisting on procedural fairness towards a fellow judicial colleague, which is the least that they owed the alternate judge given the impact of the decision that they subsequently made on his international career, the new information that has come to light has raised more questions than answers about the tribunal’s private handling of the Sow Affair.  Even more disturbing is that Judge King implied that efforts were subsequently made to erase the Sebutinde statement from the record. He did not say by whom, but reading in between the lines, it seems implied that Judge Sebutinde and or worse the other judges might have been involved.

Conclusion

This type of controversy associated with a judgment of an international criminal tribunal is not new to international criminal law. Indeed, at the Tokyo Tribunal, although during the early days of the trial the judges agreed among themselves that none of them will dissent in the final judgment, that agreement fell apart – even before the proceedings concluded. The result was that although the statute did not formally provide for separate opinions by the judges as the modern tribunals including the SCSL do, there were two dissents by Judges Radhabinod Pal and Henri Bernard and a partial dissent by Judge Bernard Roling.

The most famous dissent was Judge Pal’s. He not only disagreed with his colleagues on the law, but also on the facts, based upon which he would have acquitted the 25 accused on all of the charges. According to some commentators, “Pal countered the majority’s factual perspective by providing a colossal factual recapitulation of his own but drawing entirely contradictory inferences, specifically that there was at no time a conspiracy amongst Japanese leaders to commit aggression” (see Neil Boister and Robert Cryer, eds., Documents on the Tokyo International Military Tribunal: Charter, Indictment and Judgements at lxxx).

Similarly, Judge Bernard issued a dissenting opinion from the majority “both on questions of law and fact” as it was necessary “in fairness to the Accused” so as to clarify the extent to which his view differed from that of the majority (see Dissenting Judgment of the Member from France, ibid., at p. 664).  Also, while Judge Roling’s partial dissent endorsed the majority judgment’s restatement of Japan’s factual history, he still found it “necessary to dissent on some issues, where a different interpretation should be given to the facts laid before the Tribunal” although he did this “only where it might have direct bearing on the question of criminal liability” under the Charter (see Opinion of the Member for the Netherlands, ibid., at 709).

In other words, although the Taylor verdict controversy differ in involving a nonvoting alternate instead of regular voting judges like those at Tokyo, history teaches that the SCSL is not unique and will also weather this storm. Indeed, as the tribunal considers this proposal for the establishment of an independent if admittedly unprecedented fact finding commission to shed light on the validity, if any, of Alternate Judge Sow’s allegation, it seems befitting to conclude with a quote from Judge Pal, who in his massive dissenting opinion said the following of the Tokyo Tribunal that could just as well be said about the Sierra Leone Tribunal and the verdict in the Taylor case:

“As a judicial tribunal, we cannot behave in any manner which may justify the feeling that the setting up of the tribunal was only for the attainment of an objective which was essentially political, though cloaked by a judicial appearance”.

If the SCSL does not act creatively to address what Trial Chamber II itself characterized at Taylor’s sentencing hearing as the “extraordinary situation” which occurred when Alternate Judge Sow cast a long shadow over the trial verdict by showing the world that it has nothing to hide, history will be forced to judge it (see Prosecutor v. Charles Ghankay Taylor, Official Transcript of Record, May 16, 2012 at p. 49681). And it might not be as generous as if the SCSL helped to write that history through transparency regarding what exactly happened in the chambers deliberations over the guilt or innocence of former Liberian President Charles Taylor.