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

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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


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.


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.

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Sara Kendall says

October 1, 2012

Thanks, Charles, for such a thoughtful and thorough comment. I agree that - as with the voir dire in the Sesay case - this incident offers an opportunity to better understand the work of the Special Court for Sierra Leone in practice. Transparency in such matters can only serve this field of law that has been underexposed to scrutiny due to the unique nature of most of its institutions. There are only a handful who can explain how things have actually developed, and most of them are unable to speak for professional and ethical reasons. It is up to academics to push this.

Wayne Jordash says

October 3, 2012

Here Charles offers a way for the SCSL to address the concerns raised by Justice Sow's intervention. The core work of any international criminal court must be to do what it can to deliver fair and credible justice. Justice Sow believes that he observed something less than this and was moved to make this public. Having done so, the SCSL must, however inconvenient or embarrassing, find some way to reassure the public that this is not being swept under the carpet. The shadow cast runs the risk of undermining the SCSL and this important Judgment.

Justice must be done and be seen to be done - this applies to Taylor, Justice Sow and the Trial Chamber whose deliberations have been impugned. We know fairness in a criminal process requires transparency. It is one of the cornerstones of any robust system. If the SCSL cares about its long term legacy, it must embrace this essential transparency. So far, unfortunately, the signs are that the SCSL will fail this important test.

Charles Jalloh says

October 3, 2012

Sara, thanks for your kind comments and insights.

I agree that greater transparency on these types of issues will bolster the legitimacy of these new institutions which generally seem to escape significant public scrutiny due, inter alia, to the factors that you have identified.

In addition to the professional and ethical reasons you mentioned why tribunal insiders might not speak up, I also have the feeling that folks in the international criminal law field tend to be silent about these types of matters because of the reality that these courts need our constant support to flourish in a harsh state-centric international environment. Although I have no empirical evidence to back this up, if this hunch is correct, I wonder whether we are doing right by them if, at least those of us in academia, do not raise some of these less than flattering concerns for collective public reflection. Indeed, I am firmly convinced that it is out of such discussions that we might have some hope of identifying lessons learned from the ad hocs on how to improve the fledgling international criminal justice system going forward.

I do not have insider information on this issue, having left the SCSL about five years ago now. But I am keen to learn more what led us to this controversy as we get more information from the Court itself. For, in this instance, the way things have unfolded is suggestive that there is more to the story than meets the eye. That is why I ultimately think the best way for the SCSL to curb the inevitable public speculation on this issue is to be fully transparent about what went on. Indeed appointing respected non-SCSL figures, like Judge David Hunt of ICTY fame, and other experienced folks in this area like Judge Navi Pillay, Judge Richard Goldstone, Professor M. Cherif Bassiouni, Prosecutor Louise Arbour and Professor John Dugard, to name but a few, to investigate this issue in the independent ad hoc commission I proposed would tell us whether there was a valid concern here or whether this was just a spurious allegation. It will probably help settle the controversy over this issue.

After all, as the Taylor case is by all indications the SCSL's last trial, it would be nice if we remembered it for all its important contributions to victims' search for justice for the heinous crimes committed in Sierra Leone rather than leaving us wondering what exactly led to Alternate Judge Sow's allegation at the end of the delivery of the unanimous trial judgment in Prosecutor v. Charles Ghankay Taylor.



Sara Kendall says

October 3, 2012

I agree that an independent ad hoc commission could be helpful here, but it seems that a key question would be how to fund it. As I understand it, the Special Court is once again due to run out of funding shortly, and it still needs to maintain funding for its residual mechanism. It would seem that a firm commitment to the rule of law would also entail donor states committing to funding an independent body to determine whether the processes for rendering judgment were in fact fair, particularly with such grave allegations made by one of the court's own judges, and such a commission would be a small financial commitment compared to the nearly ten years of funding court operations. Yet with the potential that what might arise from out of the commission's findings could possibly tarnish the legitimacy of the court, it is not likely to be regarded as a wise investment.

Charles Jalloh says

October 4, 2012

Wayne: I could not agree more.

Sara: I anticipated that the funding issue would be a major concern.

Two quick responses. First, the process does not have to be that expensive or long, as all those appointed to such a temporary commission with a carefully crafted mandate that could probably finish its work in three months or less might probably be willing to do this pro bono. The basic funds needed could be reserved to staff a small secretariat to provide drafting support for the factual report, and to facilitate the necessary meetings for the commission at the seat of the Court in The Hague.

Second, as you observed, when one of the Court's (alternate) judges makes an allegation as significant as that we had in the Taylor Case on April 26, 2012, my idealistic side would insist that the States funding the Special Court do show a significant enough commitment to the international rule of law to realize that leaving this damaging allegation unanswered might blemish the legitimacy of the tribunal regarding the outcome reached in that particular case.

Sadly, pragmatically, your concern that the experience of this donations-based court is such that States are less likely to see the proposed commission as a "wise investment" is probably warranted, especially given the SCSL's daily struggle to secure even the basic funds required to conduct its main trials.

That said, although there is the justice does not have a dollar price response too, it is simply a bad investment for those states committed to international criminal justice to spend approximately 210 million dollars on the SCSL between 2000 and 2012 only to avoid the 1 million dollars required for the tribunal to complete its work in its last and most high profile trial in a manner more consistent with the highest standards of justice and international human rights law.

Max says

October 15, 2012

Aside from prudish (and quite possibly unfair) objection to the publication of an academic comment that just happens to favor one's former client, this comment appears open to at least four basic objections:

- first, and as the comment accepts, Alternate Judge Sow had no jurisdiction to do anything whatsoever and his actions did not, and cannot, form part of the official record of hearing: he was neither a judge participating in the hearing nor any other person entitled to act;

- second, while the comment refers to instances of dissenting judgments in international tribunals, those have no relevance to actions taken without jurisdiction;

- third, the SCSL does not have the capacity to be "creative", in terms of establishing an external inquiry into its own practices - and an adverse (or, for that matter, positive) finding of such an inquiry would have no legal force; and

- fourth, and most to the point, the issue has been raised on appeal and any of the speculation by the author - or any grievance by AJ Sow - could surely be explored there, with appropriate directions as to evidence or disclosure made, rather than an ad hoc, external, unauthorised and indeterminate inquiry of the kind rather oddly proposed by this commentator.

Wayne Jordash says

October 15, 2012

As I understand the situation, the problem with the 4th point is that the Appeal Chamber, or at least part of it, have been part of a decision that has found that Justice Sow was "unfit" to continue sitting. How could an enquiry initiated and conducted by the Appeal Chamber now be considered fair? Had the Appeal Chamber recognised that it might be called to consider these issues - an obvious question from the outset - then it should have declined to sit in judgement of the alleged misconduct of Justice Sow. It cannot now adjudicate without the appearance of bias. Perhaps such an enquiry proposed by Charles might run into difficulties concerning the legal force of any finding, however it would at least allow the issues to be aired and it would also allow sensible, non-partisan decisions reflecting on the potential importance of Justice Sow's views to Taylor's Appeal to be made, including whether a fresh Appeal Chamber should be constituted. The last reason being the best reason and the reason the issue will be swept under the carpet.

Charles Jalloh says

October 15, 2012

Dear Max:

Thanks for the comments on my post.

Firstly, I did not write on this issue to advance a position favoring a former client. I started lecturing and publishing about the SCSL, even before I joined the tribunal. I left the court many years ago. And I have continued to research and write about it and engaging in other academic projects relating to it such as the international conference assessing its legacy that I convened at Pitt Law in April 2012. I see no valid reason why, especially as an academic privileged with academic freedom, I could not write about the tribunal’s most important case and the many fascinating legal issues that it raises.

By the way, my prior works on the SCSL, including on this particular alternate judge affair, has actually been seen by some as against my former client. So it’s interesting how everyone’s vantage point appears to differ depending on the argument in issue. The basic point being that I hold no brief for anyone, and try to be as objective as possible, in line with academic norms.

On your four objections, I have these preliminary thoughts in response:

- First, the arguments you are making about Alternate Judge Sow’s standing/status are not new or original. That has been my position, both in this piece and in my earlier (May 11, 2012) article on the subject also published here on EJILTalk! You might refer to that to see the conclusions I reached.

- Second, you obviously have not followed the blog debate on the Alternate Judge Sow Affair. Because if you have, you will see why I mentioned the dissenters in other international criminal tribunals. Essentially, I think it was no less than Professor William Schabas, a noted authority in this field, who had questioned the nature of prior ad hoc tribunal dissents. I took up the question in my piece as I happen to hold a different view from his. My basic claim being that the Sow fracas at the SCSL is altogether of a different nature because he is not a regular judge and is not entitled to speak. And absent what is so far any substantiation of the claim that no deliberations took place, which could retroactively perhaps justify his whistle blowing in favor of the integrity of justice, his views will have no relevance. That continues to be my position. Again, you seem to be taking the same view, but that is not news to me (if in doubt, see the earlier piece mentioned above).

- Finally, taking your last two points together, I disagree that the court does not have the capacity to be “creative” about the way it handles this unprecedented issue. I did not suggest anywhere in the piece that an external inquiry will have any prima facie legal force. What I proposed instead is that we think outside of the box, to deal with an unprecedented event in the history of international criminal tribunals, and develop an independent and external ad hoc body to look into the issue of the alternate judge who spoke up and to determine what might have pushed him to do so. But I did also go on to offer reflections on how the findings of such a body could be given legal effect.

Essentially, I suggested that, depending on the findings of the inquiry, the outcome could properly be factored in by the Appeals Chamber (given “legal force” in your own language) as part of Taylor’s current appeal provided that any such factors could have been decisive in the Trial Chamber’s determination of Taylor’s guilt. I cited Article 21 of the SCSL Statute in elucidating that point.

- Sure, you are right, the issue has been raised on appeal. The question is how it will be dealt with and who gets to deal with it. I suspect summarily. And by the same judges who discplined Sow. Basically, and essentially for the same reasons that Wayne Jordash rightly mentioned, despite that the Taylor Defense Team has raised the issue, how are we to have confidence that the Appeals Chamber’s own conclusions on this point will be free of bias given the involvement of these group of appeal judges in the Alternate Judge Sow plenary incident?

I mean, save for Appeals Chamber Judge Gelaga King, these same judges seem to have formulated that Sow was “unfit” to sit without making the predicate factual inquiry as to whether his allegation that there were “no [serious] deliberations” in Trial Chamber II had an iota, or not, of truth attached to it. If they do not think he is credible in that allegation, will they have an open mind to find his information worthy? They basically seem to have formulated views that could leave the perception of bias in determining this subsequent matter raised by the defendant. Proof of point is that the Appeals Chamber’s September 2012 decision on the issue is hardly unpredictable, but also equally hardly comforting.

So, before you justify chucking the matter entirely up to them to resolve as part of Taylor’s appeal, perhaps we should wait and see what they will do with the Defense request to call Alternate Judge Sow to testify. Will they call Sow to give testimony? What about the other Trial Chamber II judges? Will they be asked to testify or offer written information on whether they deliberated or not? Somehow, the odds of that seem very long to me, if not impossible, except if you have information suggesting otherwise.

Finally, remember, my main concern on this issue is that justice not only needs to be done in disposing of this issue, but also SEEN to be done by all in a transparent and public way. This will include the accused, who must now have questions about the fairness of the verdict against him, the Trial Chamber whose deliberations seem to have been impugned, the victims of the conflict in whose name the tribunal is said to be prosecuting, the international community and states that fund the SCSL, the international criminal justice community that is committed to fair trial rights for all defendants, and not least, Alternate Judge Sow himself.



Max says

October 16, 2012

Thanks to Prof Jalloh for his full, if not always cordial, engagement. The basic points remain that:

- You say that "The Court Should Publish an Official Version of Alternate Judge Sow’s Statement". But AJ Sow's statement - as should follow from your earlier conclusion that he had no jurisdiction - is subject to the twin problems of that lack of jurisdiction and, further, that the statement breached the confidentiality of deliberations under the Statute. I had seen Prof Schabas' and others' comments that AJ Sow is some sort of informed observer, such that his comments are relevant and must be made public, something you also suggest here. But this overlooks that AJ Sow was party to the deliberations - whatever they were - on a specific and limited basis: he was not a casual bystander. Nor - despite AJ Sow being called as a witness - is there any benefit in having his evidence to determine whether there were deliberations or not: either the trial panel can, if asked by the appellate panel to do so, state authoritatively that they did occur - in which case there is a problem of credibility that can't be resolved, or if they say that there were no deliberations, then AJ Sow's statement is again irrelevant. Either way, AJ Sow's pronouncement doesn't and can't assist.

- The wider point is that the SCSL has some sort of inherent jurisdiction to establish an inquiry into this incident and, as you emphasise, you believe that this is needed to provide some sort of closure or something, but:

-- you don't cite, and I am not aware of, anything like what you propose and so we are left with the problem that this is an ad hoc court structure established by treaty, which strongly militates against having anything like the "creative", "[thinking] outside the box" capacity that you claim. To the contrary experience suggests that specialised tribunals and/or their members do not have the capacity to make up their own rules and those that try doing so tend to fall into ignominy.

-- the suggestion that the findings of the inquiry could be "factored in" does not answer the basic problem that the proposed inquiry is being asked to ascertain whether the trial court profoundly misconducted itself. Such a finding is not susceptible to being a "factor": rather, it is the sort of thing that the appeal court itself - and, again other than by recourse to the parties, only that court - must determine.

Charles Jalloh says

October 16, 2012

Thanks again Max for your interest in and thoughts on this issue.

As to publishing Sow’s statement, I think it is not an ideal solution, as I would rather that the statement had not been made in the first place. But, since Sow made it for reasons known only to him, rather than leaving the world in doubt as to what exactly he said, I think that it is better for the SCSL to officially acknowledge what was said. Besides taking the steam out of the academic speculation on the issue, and the soft PR value of such a move, there is a substantive difference in the two versions that the public has at the moment - as noted in my piece.

The first version is less damaging, in that it implies that there were some deliberations (which in a way might mitigate the public concern, as I noted in my May 2012 post). The more recent version, filed by the Taylor Defense in their motion, seems to suggest that there is a missing word but we have no way of verifying this. Ultimately, what he exactly said remains uncertain. Yet, as I have argued in my article, the content of the statement matters because the effect could be to either a) limit the damage caused by this (as yet unsubstantiated) allegation to the Trial Chamber’s guilty verdict; or b) underscore the point that there were irregularities for which a remedy must now be given to Taylor.
This is one way the SCSL could resolve the existing doubts, except if Sow himself were to perhaps decide to give a press conference or to release the full text of his statement to the public.

Sow was indeed a party to the deliberations instead of a casual observer. That is why I think his statement is particularly damaging in impugning the credibility of the outcome reached in the Taylor case. Presumably, we assume, he had some basis upon to make that significant allegation. But we do not know this for sure: he might be bitter about something else or a true whistleblower for justice. We simply have no way to tell in the current scheme of things.

In this context, the chamber “authoritatively” confirming that they deliberated will do very little, if anything, to resolve this unfortunate Alternate Judge Sow Affair. The same questions about who is telling the truth, whether the three other judges (who after all have a self- interest here) or the erstwhile Sow, would remain.

Either way, it seems to me, Sow’s statement, which opened up this problem for the Court in the first place, will be relevant. It could assist in either upholding the credibility of the outcome that Trial Chamber II reached, or, undermine it – whether the court chooses to frontally tackle the issue or not.

And, by the way, if he were just a casual observer, I, unlike others, would not necessarily care about Sow’s views. The difference for me is that, far from being a mere observer, he had the vantage point of being an alternate judge who pursuant to the rules had to be present for deliberations (even if he could not vote thereat).

Anyhow, it seems apparent enough that if the Appeals Chamber had not embroiled itself in the disciplinary issue in plenary, as Wayne Jordash pointed out given that they knew that the Taylor appeal would follow, it would have admittedly been the best placed to resolve this issue. In practice, it might be the next best thing we have, despite the concerns about the possible bias by the judges raised by Taylor and other SCSL observers.

That said, there is nothing in the SCSL Statute and the Tribunal’s Rules barring creative out of the box thinking to address this unprecedented problem in the SCSL’s most important trial. Moreover, it is the Court’s responsibility to ensure that there is a fair trial. So, besides its inherent jurisdiction to adopt ad hoc solutions to ad hoc problems, Article 17 which enshrines the fair trial rights of the accused could perhaps even form the basis for creation of the proposed ad hoc fact finding commission to revisit this issue. In any event, besides using existing statutory provisions, the judges of the Court have the capacity to adopt new rules to cover this situation since the Rules of Procedure and Evidence are judge-made in plenary. In fact, as you may know, the rules are routinely amended by the judges - sometimes at their own initiative and at other times at the initiative of either of the parties.

Finally, it seems to me insufficient to object that, oh no, this has not been done before. Even if it has not been done before, so what? Unprecedented problems, especially in a new field like ICL, may require unprecedented solutions. Provided, of course, that the tribunal does not sacrifice the core principles that undergirds the entire system. Indeed, I cannot see anyone faulting an ad hoc criminal court that takes unprecedented but principled measures to ensure the fairness of its processes towards an accused person. I can envisage the exact opposite effect: that people will admire such an institution for making the effort to stay true to the core values of justice that we all hold so dear - even in the face of a problem unanticipated by its founding instruments. The ad hoc commission itself could well be part of the SCSL’s legacy to international criminal law and practice, much like the Court’s innovations in outreach under Rule 33 and its unprecedented Office of the Principal Defender under Rule 45.

Ironically, if the UN Security Council had not taken the out of the box thinking (like Tadic's defense argued) that it could create a tribunal under the UN Charter as part of the other non-forcible measures to ensure international peace and security because the establishment of ad hoc courts was not envisaged under Chapter VII, we will not have had the Yugoslav and later Rwanda Tribunals, all of which paved the way for the creation of second-generation hybrids like the SCSL.

Thanks again for your insights.